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HomeMy WebLinkAbout08-0904IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. NICJO, INC. and McGRATH'S GRILLE, INC. d/b/a McGRATH' S EMERALD GRILLE, Defendant. CIVIL DIVISION No. D$- QD4 &vi 1 (err-A NOTICE OF ENTRY OF CONFESSED JUDGMENT FOR EJECTMENT TO: NICJO, Inc. and McGrath's Grille, Inc. d/b/a McGrath's Emerald Grille Please take notice that a judgment in ejectment has been entered against you by confession on the date below in favor of the Plaintiff for possession of property described as follows: Room 800 in Capital City Mall, located on the West side of Hartzdale Drive between Zimmerman Drive and Capital City Mall Drive, and bounded by U.S. Route 15 on the West and North. Date: _ Lo VOR P ,FJ,honot urt of ommon Pleas of Cumberland ounty IN THE COURT COUF COMMON PLEAS NTY, PENNSYLVANIA OF CUMBERLAND PR CAPITAL CITY LIMITED CIVIL DIVISION j ) Dg " Q / 6 PARTNERSHIP, No. Plaintiff, ) V. ) NICJO, INC. and McGRATH'S GRILLE, ) INC. d/b/a McGRATH' S EMERALD j GRILLE, ) Defendant. ) CONFESSION OF JUDGMENT FOR EJECTMENT 0,ivi(Te yK Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess 'ud ent in ejectment in favor of the Plaintiff and against the Defendants for possession of the j ? real property as follows: Room 800 in Capital City Mall, located on the West side of Hartzdale Drive between Zimmerman Drive and Capital City Mall Drive, and bounded by U.S. Route 15 on the West and North. fe0* Dated: , 2008 ttorney or Defendant f IN THE COURT COOF COMMON PLEAS UNTY, PENNSYLVANIA OF CUMBERLAND PR CAPITAL CITY LIMITED j PARTNERSHIP, ) Plaintiff, ) V. ) INC. and McGRATH'S GRILLE, NICJO ) , d/b/a McGRATH'S EMERALD INC j . GRILLE, ) Defendant. ) This Complaint concerns real property j known as: Store No. 800, Capital City Mall j Camp Hill, Pennsylvania ) CIVIL DIVISION No. () S'- goy l..(.llt.l COMPLAINT IN CONFESSION OF JUDGMENT FOR EJECTMENT Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow Pa. I.D. No. 43523 Darlene M. Nowak PA ID No. 37093 MARCUS & SHAPIRA LLP Firm No. 145 One Oxford Centre, 35`h Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE COURT COUNTY, PENNSYLVANIA OF CUMBERLAND PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. NICJO, INC. and McGRATH'S GRILLE, INC. d/b/a McGRATH' S EMERALD GRILLE, Defendant. CIVIL DIVISION No. Oy- COMPLAINT IN CONFESSION OF JUDGMENT FOR EJECTMENT I. Plaintiff, PR Capital City Limited Partnership, is a Pennsylvania limited partnership, with an address of c/o PREIT Services, LLC, 200 South Broad Street, Third Floor, Philadelphia, PA 19102. PR Capital City Limited Partnership is the owner of the Capital City Mall in Camp Hill, Pennsylvania. 2. Defendant NICJO, Inc. is a corporation doing business in Pennsylvania. Defendant's last known address is 202 Locust Street, Harrisburg, Pennsylvania 17101. 3. Defendant McGrath's Grille, Inc. d/b/a McGrath's Emerald Grille is a Pennsylvania corporation presently doing business at Store No. 800, Capital City Mall, Camp Hill, Pennsylvania. 4. The original instrument evidencing the obligation on which judgment is herein confessed, or a photostatic copy or like reproduction showing the signatures of Defendant NICJO, Inc. which is a true and correct reproduction of the original, is attached hereto and marked as Exhibit 1, and is incorporated herein by reference. The instrument is a Lease dated August 22, 2006 (the "Lease"). NICJO, Inc. is the Tenant under the Lease, and as noted above, Plaintiff is the Landlord under the Lease. A confession for money judgment is warranted by Section 16.02(b) of the Lease. A confession of judgment for possession of the leased premises is warranted by Section 16.02(c) of the Lease. 5. This Lease has been assigned by NICJO, Inc. to Defendant McGrath's Grille, Inc. b Assignment dated August 22, 2006. A true copy of said Assignment is attached as Exhibit 2 Y and is incorporated by reference. A confession for money judgment against McGrath's Grille, Inc. is authorized by Section 3 of the Assignment. A confession of judgment for ejectment and possession against McGrath's Grille, Inc. is authorized by Section 4 of the Assignment. Notwithstanding the-Assignment, NICJO, Inc. agreed to remain liable on the Lease and res onsible for all breaches of its covenants. Section 2. The tenant's rights in the Lease was also p assigned by McGrath's Grille, Inc. to Commerce Bank as security for two loans, but no confession of judgment is sought against Commerce Bank. Said Assignment provides that "Lender and Borrower hereby acknowledge and agree that Lender's reassignment right shall in no way limit Landlord's rights and remedies under the Lease. Without limitation, in the event of a default that is not cured within the applicable cure period, Lender's right to reassign the lease shall not limit Landlord's rights set forth in Article 16 of the Lease, including, but not limited to, the right to Confess Judgment." Exhibit 3. 6. Plaintiff avers that judgment on the Lease is not being entered by confession inst a natural person in connection with a consumer credit transaction. The underlying Lease aga of real property at Capital City Mall, Camp Hill, Pennsylvania, was made as a commercial transaction. 7. Judgment has not been entered on the Lease in this or any other jurisdiction. 8. Section 16.01(a) of the Lease provides that the following shall be deemed an Event of Default": "the failure by the Tenant to pay Minimum Rent and/or Percentage Rent and/or Additional Rent or any installment or year-end adjustment thereof if such failure continues for ten (10) days after written notice thereof by Landlord to Tenant. 9. Plaintiff avers that Section 16.02(c) of the Lease authorizes the entry of judgment for ejectment and for possession of real property after an Event of Default. An Event of Default has occurred under the Lease in that Defendants have failed to make payment in full of rent and other charges which were due for the months of July 2007 through November 2007. Plaintiff gave written notice of the failure to pay on, among other dates, October 8, 2007 and November 30, 2007, and more than ten days have passed after Defendant was sent notice of its failure to pay without making the missing payments. 10. The property in question ("Leased Premises") is described as follows: Room 800 in Capital City Mall, located on the West side of Hartzdale Drive between Zimmerman Drive and Capital City Mall Drive, and bounded by U.S. Route 15 on the West and North. WHEREFORE, Plaintiff P.R. Capital City Limited Partnership demands judgment in ejectment against all persons in possession of the Leased Premises including but not limited to Nicjo, Inc. and McGrath's Emerald Grille, Inc. d/b/a McGrath's Emerald Grille. Respectfully submitted, rA(0. Dated: J? 2008 Stephen S. Zubrow Darlene M. Nowak MARCUS & SHAPIRA LLP One oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 ?; e, ? ? ?p1 LEASE AGREEMENT BY AND BETWEEN, pit.CAPITAL CITY LIMITED PARTNERSHIP, as Landlord and NICJO,,Inc. as Tenant TRADE NAME:'MCGRATW'S EMERALD GRILLE McGrath'sCafe-CapitalCl4yMall-FlnalFinaiFinal June 7, 2006 1 Co1CnrJJCR FUNDAMENTAL LEASE PROVISIONS t.i 2006, by and between PR CAPITAL CITY LIMITED ;'rein called "Landlord') and NICJO, Inc. (herein called This Lease is executed and made as of PARTNERSHIP, a Pennsylvania limited parFnership 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: NICJO, Inc. 202 Locust Street Harrisburg, PA 17101 Copy to: PR CAPITAL CITY LIMITED PARTNERSHIP Management Office 3506 Capital City Mail Drive Camp Hill, PA 17011 Attn: General Manager: Copy to: Billing Address: Curtain Fundamioa nd Lease Provisions are presented in this elaboration in the respective referenced Sections and elsewhere inh is Lement ase the parties hereto, subject to definition n a (See Sec. 7.01) (a) Tenant's Trade Name: McGrath's Emerald Grille (b) Rent Term: One Hundred Twenty (120) months commencing on the Rent Commencement Date. The Rent Term expires on the last day of the one hundred twentieth (120th) month following the Rent Commencement Date (the "Expiration Date"). (See Sec. 3.01) (See Exh. A) (c) Tenant Store Number: 800 (See Sec. 1.Q4) (d) GLA of Premises: 5,000 square feet (See Sec. 2.03) (e) Design Drawings Submission Date: June 15, 2006 Tenant's "Construction Commencement Date": One Hundred Twenty (120) days after the later of: a) the date (? the Final Plans are approved or approved as noted by Landlord or; b) provided Tenant applies for a building permit for Tenant's Work within ten (10) business days after its receipt of Landlord's approval of the Final Plans and thereafter diligently pursues such building permit through issuance, the date Tenant receives a building permit for Tenant's Work. (See Sec. 2.03) (See Sec. 2.03} & "Construction Period` 120 days (g) Minimum Rent: Annual Amount Monthly Amount. Time Period Rent Commencement Date $fi 333.00 through the 60th month $100,000.00 From the 61 st month $g,166ifi7 through the end of the Tenn $110,000.00 (See Sec. 4.03) ,(h) Percentage Rent: Time Period Break Point The "Percentage" Rent Commencement Date through the 6(P month $2,000,000.00 Four Percent (4%) From the Wt month Four Percent (4%) (See Sec. 4.04) through the and of the Term $2,200,000.00 McGrath's Cafe-CapitalCityMall-FinalF inalFinal June 7, 2006 \ CollinWJCR 2 (i) Required opening Date: The One Hundred Twentieth (120"') day following the Construction Co (See Sec. 4.02) Date. (See Sec. 2.02) 0) Security Deposit: N/A FUNDAMENTAL LEASE PROVISIONS (CONT'D) GLA (See per Premises the Sec (k) Marketing service Charge: WA Wper square A per squa et foot f the GLA of the Premises pea Year (See Sec. 9.02) Minimum (I) Certain Other Charges Payable by Tenant: (See Sec. 5,01) Tax Charge (See Sec. 6.01) Services Charges (See Sec. 6.03) Refuse Handling Charge (See Sec. 8.03) CAM Charge (See Sec. 9.01) Speeal Assessment (rn) "Agent" and To Whom Rent Payable: PR Capital City Associates LP P.O. Box 92406 Cleveland, OH 44193 (n) Use: For the operation of an Irish American them n veto u such selling the items listed on themenu in wr tong by Exhibit D attached, provided, however, that any material change to such menu items must be pro-approved Landlord. (See Sec. 7.01) ) exercise , Tenant and he Provided that ptoptions is not itodefault extend the Term of the Ltime easefuponkthe terms, covenants, conditions and hereby granted two ) separate below, for two (2) periods of five (5) years each; provided that provisions set forth herein, except as set forth in (c) and (d) at the time an option to renew is exercised, the Term of this Lease shall be in effect. (ii) Such options shall be exercisable by Tenant giving written notice to Landlord of its intention to exercise the same at least twelve (12) months prior to the expiration of the then current Term. Upon receipt by Landlord of such notice, provided that Tenant shall then have the right to exercise such option, the Term of this Lease shall be extended in accordance with the provisions hereof, without the necessity of any further act or documentation by Landlord or Tenant, In from the no event shall Tenant have any right or option to extend or renew the Term of this Lease beyond ten (10) years Expiration Date of the Term set forth herein. In the event Tenant falls to exercise any such option within the time and in the manner aforesaid (regardless of whether such failure shall be a result of Tenant's failure to give notice or Tenant's not having the right to exercise such option), then this right and option shall terminate and be null and void without the necessity of any further act or documentation by Landlord or Tenant, and the Term of this Lease shall terminate in accordance with the provisions set forth elsewhere herein. During the option terms, Tenant shall pay Landlord Minimum Rent as follows: Annual Amount Monthly Amount Time Period $121,000.00 $10,083.33 From the One Hundred Twenty First (121") month through the One Hundred Eightieth (180`") month of the Term $11,091.67 From the One Hundred Eighty First $133,100:00 (181't) month through the Two Hundred Fortieth (240"') month of the Term During the option terms, Tenant shall pay Percentage Rent as follows: Time Period Break Point The "PercentaSlB". Four Percent (4%) From the One Hundred Twenty First $2,420,000.00 (121't) month through the One Hundred Eightieth (180 ) month of the Term Four Percent (a%) From the One Hundred Eighty First $2,662,000:00 (181x) month through the Two Hundred Fortieth (240'") month of the Term (p) Outside Seating Area: Tenant shall lease approximately 599 square feet of outside seating area space (the "Outside Seating Area") as more fully described in Exhibit "E" attached hereto. McGrath's Caf6-CapltalCityMall-FlnalFinsiFinal June 7, 2006 \ Collins/JCR 3 y Landlord shall have no construction obligation with respect to the outside Seating Area and Tenant is leasing the same in its-as-is" condition. tside Seating. Area is on the following conditions, each of which must be met Tenant lease of the Ou before Tenant can open for business to the public in outside Seating Area: ,ovals and permits to operate its business in (I) Tenant shall obtain all required governmental and other app Center with a right to disapprove or the Outside Seating Area; all approvals from other tenants at the Shopping (ii) Landlord shall obtain restrict the operation of its business in the Outside Seating Area approve in Landlord's sole discretion, all Tenant Work (III) Tenant shall submit to Landlord, and Landlord shall s furniture, fixtures and equipment placed in the Outside Seating Area. in the Outside Seating Area, including all Tenant for the removal Tenant shall be responsible freallat utilities supied to the Tenants sale cost and expe se antin d otherwisedin accordance w th the'Ite ms generated from the Outside Seating A of this tease. Tenant shall also be responsible for maintaining the Outside Seating Area in a dean and orderly state, and otherwise in accordance with the terms of this Lease. Tenant shall not have to pay any additional Minimum Rent, Percentage Rent or Additional Rent for the Outside Seating Area. Tenant's right to lease the Outside Seating Area shall become null and void, if Tenant has not opened for business including the ability to btaindtheaapprovalssrrequireld hereunder, the in the eyonond he reasonable Area hlcontrol days from te date of this Lease, reason bey opening for the Outside Seating Area will be delayed on a day for day basis for each day of such delay. sha The parties hereto acknowledge and accordi gly, all references inr hisiLeaseitto the Prehmi estsside hall mean and refer tolls d deemed a part of the be deemed to include the Outside Seating Area. McGrath's Caf6-CapitalCltyMall-FinalFinalFinal June 7, 2066 1 CollinslJCR'' 4 LEASE AGREEMENT ARTICLE 1: INTRODUCTORY PROVISIONS Section I.o1: REFERENCES AND CONFLICTS. References appearing in the Fundamental Lease Provisions are to designate some of the other places in this rate all of theterms provided for amental Lease Lease where additional of the Fundamental Lease Provisions shall Fbedconstrued to incorporate ail appear. Each reference in this Lease to any rovision shall be read in conjunction with all other provisions of this Lease applicable of th provisions other and any under r such provisions, and such p Provisions Lease thereto. If there is any The listing on the Fundamental Lease Prov s Leases of monetary charges payable by Tenantlshall not the latter shall control. 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. "Shopping Center" means the land shown on Exhibit "A" attached hereto and this from time to time. incorporated herein, as the same may hereafter be reduced, expanded or otherwise altered (a) The term howe (b) The term "Mail Premi as remeans the shopping Center duced expanded or othervvise1atered from vtimeto time sPremises and the term "Mail promises" includes the same structures and other improvements shown in (c) The term "Landlord's Building" means the buildings, genal oExhibit "Aandlord's Build rig is part of the all iPremises.TThe term "Landlord's Bui ding" inncludes the same (hereinafter as reduced, expanded or otherwise altered from time to time. ans premises (d) The term "Majors' Premises" (or "Majors Premiees"ac eal principal pal occupant non Erxhi iMAp. page a by such term, or to the word "Major" or name of the prosper or thereof "" or "Major"), and the term "Majors' Premises" (or "Majors Premises") includes the same as reduced, expanded or otherwise (or "Majors") ubstitute ment for es any re of of the altered from a M to Premises tas e as,rin the case of an exdpansion of tlac heeShopp ng Center, the primary occupanprimary occupant 1 of the Majors' Premises shown on Exhibit. the premises equal to or exceeding, in terms of Gl?, the GLA of any one (1) "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 aof the Enclosed areas remises dramthe ps t traffic controls, truck ways, loading nddun oading dock deUelry (a eas,asidewalks stairways, Mall escalators and elevators (if any), service corridors, exit corridorrest rooms and comfort stations, creAning if a wales, seating areas, buffer reta merchandise pickup stations (excluding those of Majors, if any), public landscaped areas, open space areas, utility systems, sanitary and other waste handling system , holding tanks, page mains, fire detection and/or suppression systems, life safety systems, security systems, 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 mail located in Landlord's Building, and the term "Enclosed Mall" includes the same as reduced, expanded or otherwise altered from time to time. space ing Lea which ( The term " loccat on marked ton Exhibie Amis ",h thisever, thesPremisese and tech erticallyBt (the ceil ng .03(b) he n Section space is in the approximate efin event above the structural Des the comerrrloset forth in Ladlord's cat on, the Premises shalllrexccl die any rights width respfect to the exterior side all of he event the Premises s o 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. (I) The term "GLA" means with respect to the Premises and all other leasable areas, Landlord's best feet of area y the tenants or I mp atiouse n bm ezzanines and andutheir customers, clientsoor (other inovidt a including withoutexclusive for the e he at occupants the eof of Ot Pants balconies 'rf 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 Mall shown service' corridor walls, the line along the front of the Premises where the Premises abuts the Eo osede red to in Section Exhibit A (which line is commonly known as the "Lease Line"), or the Lease Line of any pop 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 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 GLA reductf reductions, expans ons or other a teratons of Landlord's Building or adspsuch GLA maybe adjust dbpursuan to roprovisions 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. McGrath's eaf6-CapitalCityMslPFinalFinalFinal June 7, 2006 1 Collins/JCR The term "GLA Frain o " m eadn a f of Landlth numerator o@d's Bu'Iding?subject, h aowever, to the provisions of Section the denominator of which shall be the 4.08.. not herein identified as or otherwise (k) The term "Junlar Major(s) Premises" means either of the following, (hereunder constituting a "Major"): (I) any so called "out parcel" or any premises that does not have direct customer store frontage and/or customer entry to the Enclosed mail or (it) any premises which contains In excess of 15,000 square feet of GLA in the Shopping Center. (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. approximate location of EXHIBIT A Plan of the Shopping Center as presently constituted which plan also shows the app the Premises. EXHIBIT B Guarantee of Lease (the "Guarantee") EXHIBIT C Completion Certificate. EXHIBIT D Menu. EXHIBIT E Outside Seating Area. EXHIBIT F No Restaurant Area. EXHIBIT G No Build Zone. Section 1.04: TENANT'S STOREFRONT. royal, "pop Tenant may, subject to receipt of all required governmental approvals and Landlord's prior written app 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 mayya ttan of, or nd from t time add toime m elimtinate aland ny if from, o add to or substute substitute for land of, he Shopping Center or any p number ovements change, enleor consent ng, withoutl'mitatiioon adding additi nalllleve s to extent of the any existing buildings there one or any part thereof, chiange in the sha, size, Shopping Center 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 arreen and shall be subj d, subordinate and otherwise junior to any cross easement agreement (as they may be or may have b created, supplemented or otherwise modifi ro easement agreement bang here n co each ly?dnt of the Majors or Junior Majors who are parties thereto 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 hereb rm, at Landlor leases her Tenant nant and herein unto the T the rentalOand upon he cfovenants, conditioseand other terms herein set forth at etcommercal spacedreferred toe the 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 bnTenant further acknowledges thatdLandlord dhas not made rathe key to the ny representations mas to the present or future designee. of the Premises or what items, if any, the Landlord shall not be required to send Tenant any formal present nottic utendering possesisionlofrthe 1Prremises nor shall La drlord 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 specked herein for a period equal to the number of days between the physical at possession of he Premises is of available by a date which is one year from the Construction Commencement Date, Landlord's option, this Lease shall be null and void and neither party shall have any liability hereunder to the other. McGrath's Caf6-CapitalCityMall-FinalFinalFinal June 7, 2006 1' Collins/JCR 6 all work required to be performed by Tenant to remodel the Premises as set forth ntel Lease Provisions, (b) Tenant shall perform accordance with below and to adapt the same for Tenants use ,as such use is specified and limited by the Pre ises in n another all such work being referred and to hereint design criteria ybooklet and nothelrwis esign T Pia rll insu nc? Fe ived. rd's current store requirements therein (herein called "Store Design' Criteria"), a copy of which Landlo he Tenant shall instruct its architect or designerto prepare Tenants plans for the premises in comula n. In the pliance with the A vent to a with Disabilities Act, the the text of this Leaseland the pp lore Des g Criteria, the latter shall revaiail.sEntry by Tevent t any pro duri g sch period.'sTeLease, except nant agrees to perform inconsistencies between to al Premises prior to the Rent Comroeall utilitiesDandshalserlvlbcees supplied tol tf uthe not to with so as pay Rent but Tenant shall pay Lease and such Tenants Work in cy accordance enjoyme t of the remainder ?tof the Shopping Center, orrany part thereof. Te an enanttshall promptly tly cause the to be re use, be re occupancy paired all items which may have been damaged as a result of the performance of CTenant enter ( Work tham Phe ortions ing other upon the occurrence of such damage and shall aatimes materials petaled to Tenant'soW ork. Premises) free from and unobstructed by debris, equipment Tenant's Work shall be commenced on or before October 1, 2008 (the "Construction Commencement Date") s mm shall include the and shall be completed on or before February 1, 2007 (the "Required Opening Date Tenant's following work to the entire Premises: t. Install new wall treatments and finishes. 2. Install new floor treatments and finishes. 3. Install new ceiling treatments and finishes. 4. Install new lighting systems. 5. Refurbish or modify electrical system. 6. Install new HVAC system including new rooftop unit, subject to Landlord's Roof Work set forth below. 7. Modify existing sprinkler and fir protection systems. g. Install new Storefront construction and finishes with display window (s). g, Install new internally illuminated storefront. 10. Install new store displays and interior fixturing and furnishings. 11. Install' new ADA compliant restroom. Notwithstanding anything to the contrary set forth in this Lease, Landlord shall perform the following construction essary exterior curbing ns, rk' Landlord' with t to for in allationcof a t new roof Systemsinclludi goa newlirooftop un trforothe Premi esdIn add lion, Landlordeshall make as cuts for entrances and windows at places to be mutually agreed upon by Tenant and Landlord (the "Wall Cuts"). Roof Work and i the Wall Landlord's to Ten an and the amount of such bill shall be deduced from a bill shall reimburse deliver Furthermore, Tenant's Allowance, as defined section 23.26 of this Lease. cost Notwithstanding anything to the contrary setforth herein, Terigt shallr have thecig tLto review Roof estimates for Landlord's Roof Work and the Wail Cuts prior t Work and the Wall Cuts. rd's t inator (c) On or before the Design Drawing Submission Date, Tenant shall submit to Landlon caenant ceoord?ign (herein called the "Tenant Coordinator") for the Landlord's approval 9 Drawings") specifying each aspect of Tenant's Work and specifically including a colored rendering of the proposed to be and the storefront and interior layout of tthie g, emises mTheaDesign Drawings shall be l prepared Iinn aCcphotograph of ordance with the Sto a Design Criteria. samle Drawings marked "disapproved", LandlordDshana o note theeither of sgudch the Design Drawing, 1. approv After ei as of nted' or "disapproved. if they are Landlord 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) 3dayaperioafter resubmit v sed drawings as until the same have been "approved as noted" or "approved". On or before thirty (0) ys working noted" or "approved" Design Drawings Tenant shall submit to the Tenant Coordinator for Landlord's approval, l, electrica na"Final Plans") for nt Work proposed by Tenantaand shownlon the Design Drawings and required and specificatns mechanica work iwithin he P emisses and all o(rein thercalled wings with the in accordance prepare marked .a the Store Design or Creria. The "appro y? La dlord..Thall he Final Plansdshall into p at any revisions required by Landlord to "approved noted" caper the Design Drawings, including those forming he basis of Landlord's approving the same "as noted". After asc nloted"t or Final Plans, Landlord shall return to Tenant the Final Plans, marked either "approved", "approved and Tenant "half; "disapproved". If they are marked "disapproved", Landlord shall state the reasons for such disapproval 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 edas "a ep roved s name to "approved". If Landlord accepts Tenant's Final Plans "approved as noted", not Landlord's Tenant Coordinator, but Tenant shall revise such Final Plans to incorporate Landlord's required changes and shion as to y with the Tenant covenants that the ea Tenant Work PPlans. shall not correct such de ciency anid resubmit notesny disclosed on such "approv disaappro proved Final Plans within the required time period, such failure shall cn gasnnotd t or of efault. Tenants Work approved" by Landlord. shall be performed only in accordance with the Final Plans, as marked "approved Tenants lsubmit its heonon or structin before Commencement Date shall Submission Event gof Default Tenant's commence Tenants Work on or before pursuant to 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) Together with Tenant's submission of its Design Drawings and together with any other plans submitted by Tenant relating to any other work in the Premises which Tenant desires or is required to perform, Tenant shall pay Agent on each occasion the sum of Two Hundred and Fifty and 001100 Dollars ($250.00) to defray the cost of reviewing Tenant's Design Drawings and Final Plans. McGrath's Caf6-CapitacityMail-FinalFinalFinal June 7, 2006 1 Collins/JCR 7 shall de of Tenants building permit and (e) On or before the and thet8to a Design C teriaDasewe8 asna true copyosit with Landlord certificates o insurance as required in Article Tenant shall commence Tenants Work and prosecute it diligently and continuously to Work completion or th shag deliver installation the fixtures and equipment in t premises. subcontractors or materialman (here acalled °f do"Cotr T ors Waiver enant oens) from ricement of the Premises by any contractor, that Coordinator a signed, acknowledged and sealed waiver c (lens {herein ay have against Landlord's esta a Id , right, title among and other interest things, in the each, Contractor In the anform y and aified lien rights othat rd. it mhe C Shopping Center and any part thereof including, without limitation, Landlord's Building and the Map Premises. Within thirty the Contractor (30) days after Tenant's opening the Premises for business, Tenant shall deliver to Landlord an executed Completion Certificate in the form attached hereto as Exhibit "C". Landlord shall have the right to post and keep posted in the Premises notices of noa estate, right, t, or title Landlord or he commencement of any work r which such other notices as Landlord m a d anybpart rt iereoffor, tTenant shall before t and interest in the Shopping Center o the Section 2 03 shall apply With notice of its might result in any able Landlord to postafile and rteco d such ndlord The provisions of this intention to sufficient time to respect to Tenants Work or any other work performed in or about the Premises at anytime during the Term hereof. Section 2.0..4: 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, Tenants Work and the installation of fixtures, Required falls equipment and merchandise days t thetRequired OpeeningiDa e, Te ants all pay to Landlor the Premises db n add tion toeM'nbmum within thirty ) an Ys Rent and Additional Rent, an amount equal to One Hundred Dollars ($100.00) for each day Tenant's business remains not in?g the said Opening the first sums and other charges payable DTenanate totLandlord pursuantrt?the Datemediately preceding open in An from and after th such day). Y sentence shall be paid on demand to offset administrative costs and expenses incurred by Landlord as a result of Tenant's under s Lease late withou limitation the obligation t open is business in the Premises,n ndf Landlord s aNlhaave all other nights and remedies under this Lease, at law and in equity, arising from Tenant's failure to open pursuant to this Section 2."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 actor arising out of any work done or materials or supplies fumishhed bye haon actor, g bcontri ct g, a hanni combo a lien or a cumbr or any mortgage, conditional sale, security agreeme against or upon the Shopping Center or any part thereof. in encumbrance other charge ge (collectively a "Charge") including without limitation the Mall Premises and Landlord's Building or the income therefrom. Tenant will of suffer any other matter or thing whereby the estate, right, title and interest of Landlord in the Shopping Center or any part thereof claim or claim or including lien eon account of an a eiged debt of Tenant or any Building of ointractor Large by anperson gaged by Tenant or Tenants contractor to work on the Premises shall be filed against or upon the Shopping Center or any part thereof Including without limitation, the Landlord's Building or the Mall 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 not be discharged oed within to disch discharge the same by payment, deposit or by bo9dingrprremedy oceediingsaand 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 ces. so claimant connection fees, incurred ylan lord in Any and all interest Ycojudgment in favor of he sts and expenses, claimant with interest, costs and paid tby an to pay Landlod the amount of 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 by Tenant or against gel shall bemll to Tenant's dee immediate use and in or Landlord so that no mechanics' or other claim `I eneor other dohs the estate, right, tale 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. Section 2.06: Restaurant Installations Tenant shall provide at its own cost and expense automatic sprinkler protection and COz fire extinguishers in all hoods and ducts in the cooking area of the Premises, all approved by Underwriters Laboratories and Landlord's fire insurance carrier. Landlord shall determine if any special ventilation equipment shall be required in said cooking areas, and if same shall be required' by Landlord, Tenant shall furnish the same at its cost and expense. Tenant shall provide a trash room within the Premises, and trash removal on a daily basis. There shall be no storage of trash outside the Premises. At least twice daily, Tenant shall be required to remove all trash from all portions of the Common Areas of the Shopping Center which are located within a fifty (50') foot radius of the Premises. In addition, Tenant shall install at its own cost and expense trash receptacles on all sides of the Premises, which receptacles shall be of sufficient size and number to McGrath's Ca%-CapitalC'ityMall-FinalFinalFinal June 7,2W6 1 Collins/JCR 8 accommodate all of the containers, straws, paper plates, etc. used or consumed by patrons of Tenants business in the Premises. ARTICLE 3: TERM Section 3.01: TERM OF THIS LEASE. The term of this Lease (sometimes herein called the "Term") means the period the "Interim Term" (hereafter The "Interim Term" means the defined) followed immediately by the penod of the "Rent Term" (hereinafter defined tely preceding Tthe Rent commencement ending the period commencing on the date of theses commencing on the RenttCommencement Date and ending on the Expiration Date. The "Rent Term" means the p a agreement executed by Landlord and f Tenant orr sooner Date, as extended pursuant to Section 21.02 hereof or by the g Interim Term, if Tenant is not open terminated as provided herein, as the case may be. During except that Tenant's obligation to pay Rent shall abate, other than. premises, all of the provisions of this Lease shall apply for utilities and trash charges. Section 3.02: YEARS. any Partial Year. 1month . period from January I through Ye means the period betwee a d including the The term "Year" means if a each occurring during the Tent. i plus, applicable Rent Commencement her than a December 31, the period beginning on he last succeeding leof the Term and ending on the last Term ends s. o on other day of the Term. ARTICLE 4: RENT Section 4.01: TENANT'S AGREEMENT TO PAY RENT. rees Term Rent the remises durin cupancy use the , at Tenant hereby e n tprovided rthe Minimum Rent Perrcentage RenttandPAdditional Rentt.. As used in th is Lease, times and In the 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 date set forth as the Required Opening Date in the Fundamental Lease Provisions. Section 4.03: MINIMUM RENT. amount set orth in the (ro The base rent Tenant Rentalpe aYear? and shall beh paYear yabletain twelve (12) equal (monthly n talmen snt nl Lease Provisions as the Minimum 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 used this Fundamental Lease Provisns as the ans a fractioni, 'the numerator ef which is thenumber Partial dYear ays nrthe1 applicable Partial Year, and "Partial artial Year Fraction" me is the onthly installments tin advance, on th first sixty-five day f each calendar month, except that if the Re teCommlencement Dequal m 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. be exp by the anded more Pr at any time dun Center is expanded by more thanr75a00 square feet of GLA,, Tenia t ag ees th at the Majors Premises o the Shopping Minimum Rent provided in the Fundamental Lease Provisions shall be increased by five percent (5°!0) upon the date each such additional Majors' Premises first opens for business or the opening of the expanded Shopping Center. Landlord agrees that the Break Point shall be likewise increased by five percent (5°!0). Section 4.04: 'PERCENTAGE RENT. (a) In addition to Minimum Rent, Tenant shall 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) muitiplied by the amount of Gross Sales made during such Year excess l Year of shthe applicable Break all be an amount equal to the Percentage multiplied by the amount of Gross Saes mad during Rent for each Partial such Partial McGrath's Cafe-CapdaiCityMall-FinalFinalFinal June 7, 2006 \ GoWns/JCR g Yeap innt. Th foe he apprtial Year Break " shall licable partial Yearnand the Be ak Point and Partial Yetar prtial Break point multiplied by the -Pa Year in excess of the Partial Yeear Break Break Point are collectively referred to as the "Break Point". Percentage Rent beginning with the first oint. (b) In each Year or Partial Year, Tenant shall be obligated to pay month in which the aggregate amount of Gross Sales made for such Year or Partial Year exceeds the Break PRent payment of Percentage Tenant shall thpay e ema dregof sucent (in h Yearor partial Year on all additional Gross Sales.nEach each and every Percentage succeeding month during th shall be paid m Tenant f Gros Saes pro ded fodemand and otherwise as set forth in this cle 4 r in Section 4.06, subject to the annual ad us me it prrov?d di or nn uch monthly statement of 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 occur her t e) is ent (here first any such areas Point for the Year in which the Rental Adjusttment Dateshualll fall shall the the sum of an1) the the n tialB eak first day com in the p day Year, the Break number of Point multiplied by a athe Rental Adjustment Date shall e falleand ending onsthe daye m ed aely npriortotthe Rental of the Year in which plus the latter Break Point Adjustment Date and the denominator of which shall be three hundred sixty -five (365), p (2) number commencing the Yrearbin `ro ich the Re al Ad u} sin the t ent Date shall fall and he denominator) on the multiplied by atefraction, and ending on he last day owhich Adjustment Da of which shall be three hundred sixty-five (365). Rent Landlord agrees that the of computing Percentage (d) Notwithstanding the foreg iodcly men the Rurpose ent Commencement Date of the Term of the Lease and he first Year shall be deemed Year be the per December 31 of the second cond after such Rent Commencement: Date, and the Percentage. Rent for such period shall be due and payable in accordance with the following: The first Year shall be divided into two separate parts which are hereafter referred to as the Partial Year, Commencement and the balance of the first Year. The Partial Year shall beshat period of timeh dilate, the Rent Percentage Rent ) the amount, K any, by Date the Term of this Lease and the day prior b four percent (4%and the payable, if any, for such Partial Year shall be calculated by multiplying Y les during Two Million sum the such lars Payme l of any Gross Rent due Landlord foerathe PartialYear shall befmade within t?lrty (30) days after the Ym end of such Partial Section the first Year shall beth tnperiodlloffttime betweendthe anu ry senwhichrne tfolows the Rena CoThe rt enicement th after such Rent Commencement Date, Date of the Term of this Lease, and the December 31st of the second year and any Percentage Rent for the balance of the Year shall be paid in the manner and at the time specified in Section 4.04. For example, if Tenant initially opens for business on September 1 st, Percentage Rent for the Partial Year st shal exceed he sum referred to above, Tenant shall pay asSales next succeeding August September shall 1? stt and August 31 upon the Partial Year the percentage of such excess referred to above. It is also agreed that Tenant's Gross Sales for of the first due byTe Partial during the balance o used to determine any a Pefull twelve rcentage (12) month the August 'o 3d1tf stime hall which be will provide Tenant with ) Year. Section 4.05: GROSS SALES. business c n of duall cted and merchandise, accommodations gross receipts and other goods (a) sold or tea ed and sthe anual charges for?alll services performed, receivables or credit or ootthperwise, and including thengvalout of ue of allll rendered by Tenant nd b any sutenant, se of the Premises awhether wholesale or retail, whether for concessionaire u 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 (ili) 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 sale for the made ale Is during when shall be retie veil payment therefor. No frice in ranchise, value added tax, capital stsock tax taxi based uepn asset hortnet worth or receipt tax, and no income or similar taxbased on income or profits shall be deducted from Gross Sales. gross (b) Only the following shall be excluded from Gross Sales: (i) any exchange of merchandise between stores of Tenant when such exchange is made solely for the convenient operation of Tenants 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; McGrath's Cafe-CapttalCityMall-FinaiFlnalFinal June 7, 2006 1 Collins/JCR 10 (v) amounts separately stated in the sales receipt and collected from customers which are paid by at the point of sale. of the point0. s and, Tenant to any government for any sales or excise tax imposed b law (vi) to employees at a discount up to an aggregate char (vii) third party credit card charges, onnu annual Gross oss Salgeess separately stated as such, and bad debts, up to an aggregate annual amount of two (2%) P Section 4.06: REPORTING OF GROSS SALES; YEAR END ADJUSTMENT. Tenant shall furnish to Landlord within twenty (20) days after he and of each calendar month during he Term a complete statement (the "Monthly Report"), certified by Tenant (or a responsible financial officer thereof if Tenant (a) is a the aggregate amount of Gross Sales such as the case may be), including such month, (iii) the amount, • any, by which such during g such such Ye Year (or setting Partial forth Year, ear, amount of Gross Sales during such month, Ci) Rent previously paid aggregate amount of Gross Sales exceeds the Break Point, and (iv) the amount of Percentage Tenant to Landlord for such Year (or Partial Year, as the case may be). The Monthly Report shah be in such form and style and contain such details and breakdown as Landlord may reasonably require. (b) Tenant will also furnish to Landlord within sixty (60) days after the end of each Year a complete statement in reasonable detail the amount of Gross (the s di g such Ye certified by the chief financial officer ur Tenant, showing s ifically stating that such person 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 cert"rig the Yearly R SPort dsP ecally d the thYearly at Report of has read the definition of "Gross Sales" contained In this Lease, that such per Teriant Gross susuch Year, under the circumstances, and that the Yearly Reportfaccu atelyb pooks resen s thr eAGross Salces person considered of such Year. Rent as (c) An adjustment shall be made with the furnishing of each Yearly Report with respect to Percentage and against follows: rf Tenant mat terms of Seco ns an aount greater than Tenant 4.03 and 4.04(a), Tenant shall! receiveda credit of sMchinimumexcesRent Percentage Rent under the shall have payments of Minimum RhennTenan Tenant shall forthwith pay su h difference. In no a vent, howe era shall tthessumaof the paid, required to be Minimum Rent and Percentage Rent to be paid. by Tenant and retained by Landlord under the terms of Sections 4.03 and 4.04(x) for any given Year be less than the Minimum Rent for such Year. his Section o La l be .06 sh the no ch The reports required t by tother place as mayalbe desiignatedtfr m tmedt ttime byonoticefrom Land ord to or such other person and! other rights sand remedies he? unlder, Tenant nshall pReport and/or ay to Landlord, YearlyAdditionReport Rent,uanlamou t equal to Twenty Five n Dollars ($25.00) per day for each day such statement is overdue. Section 4.07: TENANTS RECORDS & AUDITS. (a) airs hTenant covenants all be maintained in tlacco dance A0 generally accepted accounting principles. s Furthermore, Ten agrees that the concession ant shall keep at all times during the Term, at the Premises or at the home or regional office of Tenant, full complete and he receipt of all accurate operations f thks of account and records in accordance e business conducted to or from the Premises, incl ding the recording of Gross ales a dt s from the Premises during the merchandise and other goods into and the delivery of all merchandise and other good Term, and shall retain such books and records, copies of all tax reports and tax returns submitted t to taxing authorities, as t well as copies of contracts, vouchers, checks, invent rffrm the end other documents arid papers i any way relating to the period to which they are applicable, or if any the. operation of such business for at least three (3) years payable hereunder, until such audit is required or a controversy should arise between the parties hereto regarding the Rent paya audit or controversy is terminated even though such retention period may be after he expiration of the Term or earlier ble times the af to riod to thef Inspection of Landlord oor is duty authorized representatives, whoashall havedfullnand freeoaccessetoesuch pen , such informat th Teant to make such books, records a d lot er materials whichi Te antxisarequired to retain books and ereof and the right to require right available at the Premises 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 and other which Tenan notice to l e cause a books and recormade of Tenant's ds of any sublenantrhbcensee, concessionaire and others occupant) fortall including complete audit to Tenant . If Lan required notice or any part of the three d year period immediately lof Percentage Rent, Tenants ha of fosuch rthwith pay to Landlord the amount such audit shall reveal a deficiency in any payment of the deficiency. (c) If such audit shall disclose that (t) any of the Yearly Reports understate Gross Sales during the reporting, period of the report to the extent of three percent (3%) or more, or (Vi) Tenant has not recorded Gross Sales, or kept books of account and records, as and for the period required by this Section 4.W; or (iii) if Tenant shall be delinquent in delivering twi any delinquency (shall be an (Event of months lt. In adndi ocnn,, in the event of sart uch Year to then such Yearly unde statement Monthly Reports for two Year, , 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 shail.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. and/or la f such the (d) In the event Tenant violates the provisions of Sections 4.06 or 4.07 or botch and as violation, Landlord, or its duly authorized representatives, is unable to conduct a proper parties agree that Landlord shall have been deprived of an important right under this Lease and, as a result thereof, will McGrath's Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 \ Collins/JCR 11 and suffer damages in an am gum chi Lhandlonot rdrhas1tu derv this nLease at law or in equity, shall have the right, at its option, as any other liquidat ted damages and not as a penalty, an amount equal to ten percent (10%} of the greater period or periods in collect lieu of , Rent reported for the perl6 eriod. or periods in question, or (ii) the annual Minimum Rent payable for the per question. Tenant agrees to pay such liquidated damages. Section 4.08: ADDITIONAL RENT. In addition to Minimum Rent and Percentage Rant, Tenant shalt pay, as additional rent (herein sometimes es collectively called "Additional Rent") all other amounts, sums of money or charges of whatsoever nature required to rvel In computing as " paid by Tenant to Landlord pursuant to "CAM Sum" this CAM Charge" are ode ned in Articles desi5 antd 8, respective y? Rent". The term same s "Taxes", "Tax Charge", , 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 the occupant of the Majors e sums which are and Junior Majors to Landlord the Taxs, the CA espectvey to, educehthe Taxe tithe CAM Sum' and Cherparticula OLC (collectively the "OLC Sums") shall Sum before apportionment and determination of the Tax Charge, CAM Charge or Other Like Charge to be paid by Tenant ad the Junior Majors ike Charge, the denominator of the and for the nurpshall os not include the LA of the Mrge, the CA Charge a such Other GLA Fract Section 4.09: WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTIONS. Ren , it or Additional Rent) shall be Rent payable by Tenant under this Lease (whether Minimum Rent, Percentage Lease), 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 ppaid by Tenant to Landlord at the ayee and/or at such other place as may be designated from time to forth time by notice from Landlord to Lease) v visions or tolsu be Pro Tenant. At the end o the Term, Rent paid to Ladlordf and any other amou iTenant is s due from not Landlord to Tenant. Any Rent, or installment hereof, which fscnotot s due In the Rate Default nterest bear shall event paid by Tenant to Minimum Rent or other sum under this Lease (shall n t be paid'when due,a "Late Cha ge" of two cents any installment of of defraying Landlord's ($.02) per each dollar so overdue may be charged by Landlord, as Additional Rent, Tenantt Qays ?ana y installment of Rent, by administrative expenses incident to the handling of such overdue payments. check and such check is returned for insufficient funds or other reasons of the fault of Landlord, then Tenant shall pay Landlord, on demand a processing fee of Twenty Five Hundred Dollars ($25.00) 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: TENANTS TAX CHARGE. r, as Tenant shall pay to Landlord in each calendar xcises and other governmental or quasi-governmental l charges of ad valorem taxes and other assessments, impositions, 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 Canter a 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. Section 5.02: PAYMENT BY TENANT. (a) Payment of the Tax Charge required under this Article 5 shall be paid by Tenant in equal he total Taxes payable installments in advance in such amounts as are estimated and billed by Landlord based uponn thehe end of any calendar each calendar year. Landlord may revise its estimate and may adjust such monthly paymen at 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 dad a and payable at mediatelythe beginning of each ensuing calendar month during the Term. In addition to the payments provided ndlord ttherTenant snshof the are of such Pf? cable to the Term, the Tax Charge shall include and Tenant shall eimbuirse have to prepaid app 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 song forth Tenant's share of such Taxes, together with copies of receipted bills, evidencing Landlord's payment of such Taxes. the (b) After Landlord has received the Tax Ibitih sef for each of calendar year, Landlord illl notifl a Teen esf(1) the amount any refund, or amount of Taxes on which the Tax Charge is based, (") the amount .of the Tax total GLA of the Premises and Landlord's Building on which the Tax Charge is based and Gnat year are greater than Charge. If the aforesaid monthly payments on account of the Tax Charge for a given Tenant's share of the Taxes payable for a given calendar year, Tenant shall receive a credit from Landlord for the excess against installments of the Tax Charge next becoming due to Landlord, and if said payments are less than Tenant's share, Tenant shall forthwith pay Landlord the difference. McGrath's Cafd-CapitoiCityMalWinaiFinalFinal June 7, 2006 \ Collins/JCR 12 Section 5.03: TENANTS ADDITIONAL TAX OBLIGATIONS. impositions, excises, fees and other (a) Tenant shall pay before delinquency mentala or all taxes- Tenant or its business quasi-governmentalnauthority upon charges levied, assessed or imposed by 90 of the. Premises, or upon Tenant's leasehold interest, trade fixtures, operation, or based upon the use or occupancy of any kind ant, merchandise a d personal Property pursuant to furnishings, equipment, leasehold improvements (including, but not limited to, those required to from or additions upon the made by Premises. If the property of Landlord is shall included in nonetheless any be of the paid Tenant's Work) alterations, Tenant changes in, and owned, installed or used by able, any sales tax, or other tax, assessment, foregoing items, the afores?aae Tenant shall pay, when l due ad pay fees and other chi i this Lease or any Rent or taxes, assessments, by Tenant as herein pron or age Rent or other imposition, ,paid, other charge now or hereafter levied; assessed or impose pt's interest in this Lease or any enopen assessment, imposition, other sums paid or be told be r iunhde . S?ld the appropnated taxing authority require that any tax, as behalf of such sitaxing , sums paid th to lie paid be collected by Landlord or Agent for on excise y other charge assess in this Section 5. x3(a) shall be aid by Tenant to Landlord or to Agent authority; then such tax, assessment imposition, excise. or other charge p nt to Tenant to such effect. described intthis ?$ection 5.03(a) shall be the monthly as Additional Rent in accordance tfees and other charges from obligation The taxes of Tenant and assessments, not Impositions, Landlord sawn, excise, fee or other charge covered b ndlord or Agent. H any tax, assessment, imposition. this Section 5.03(a) is Imposed on Landlord or Agent, Tenant shall pay the same to Landlord within thirty (30) days after receipt of each bill therefor. estate, succession, (b) Nothing herein contained shall be construed oo apital levy that ? or any may be imposed upon Landlord;. transfer, gift, franchise, corporation, net income or, p ? a the tats th now levied, assessed Term end, how altered sto tif at ny time hat in lieu of or as a supplement to the whole or any paof. th prevailing at the commencement a the a tax on the rents from such real Term shall be shall any portion thereof, lord from l)the Shopping Center orreceived imposed on real estate fee measulred by the rreents receivable by Land (H) a (iii} estate, or tax x or l or license ices a fee imposed upon Landlord which is otherwise measured by or based in whole or in part upon the Center or any portion thereof, then the same shall be included in then{ear were the only propertyr computed Shopping of Landlord as 9 the amount of such tax or fee so payable were that due if the Shopping the portion thereof perry o Landeto subject thereto. If any gross receipts tax shall be payable by Landlord, Tenant shall pay Landlord's receipts from 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 barges, and iding heating taxes oorlothervcharges levied on such utilities f Should Landlord elect be the any other utility us or consumed in t connection and service charges and Premises with all i Landlord or required to supply or make available any utility used or consumed at the Premises, Tenant agrees to purchase and pay for shall not same; as Additional Rent, every month in the Term; provided that errant amount therefore obligated tt would otherwise be annual whVch aggregate annual sum therefor in excess of the aggregate er of then the TTenantt shall also paypubanylic surcha gees, impositions, obligated to si thhe utility ShopP Shopping Center. service as a retail supplying utility to provided that such taxes, surcharges, utility penalties or other additional barges applicable to the utility service being supplied, p its impositions in question. Landlord may, atyits law to option, Instaalltan Efrom T nergyeManagement System to efficiently con supplrve utility usage, If installed, and Tenant agrees to pay monthly, the sum of Fifty and 001100 ($50.00) Dollam?? Tenant's Landlord the Energy Management System purchase, installation, maintenance and upgrade costs. If per shall have the right at any time and from time to time during tpeTerm to either contract for service from a different company or companies providing utility service to the Shopping e (b) In the event the Premises does not presently contain an electric or other utility meter, at Landlord's f such and its sole cost requ expense request; Tenant shall, within forty -five (45) da of ter r eacpt fter, oat Landlo d's?requ st tLandlord and Tenant shall enterainto meter of a type approved in advance by Landlord. an amendment to this Lease specifying the procedures for reading such meter and the rendering of bills to Tenant for the other supplies water a d andtor utility beg evices metered. In collects for sucth service and/or) conlsuauthority, municiality, mpt on, Tenant covenants a d agrees to pay thwater sewer s s 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, pply of water be based on meteredtrreading oruother formula specthe tby , of order or age connecction or issued Suche cthargeswith sthe halluse, or sewerage Landlord. expense Ten n or incur (c) Landlord failuretcurtailmientr interruption, disruption, "brodama wn out"ror defect in then pplysors character of by reason of any supplied b Landlord or any utility supplied to the Shopping Center or Premises or if the quantity or character of the utility suppl: Y diminution of Rent or relleve T want from constitute a any of its o any abatement requirements eviction or entitle Tenant suitable for Tenant's any acservice tual or provider is no obligations under this Lease. Tenant shall operale the Premises in such a manner as shall not waste energy or water or burden or damage the utility tines therein. (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 Landlord's sole cost and expense, Tenant's distribution facilities therefor with another source for the utility service so discontinued. McGrath's Caf$-CapitalcityMall-FlnaiFinalFinal June 7, 2006 \ Collins/JCR 13 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 than and/or charges for meters within the applicable tine period set by the local utility company. deposits, utiliconnectio Section 6.03: TRASH AND GARBAGE REMOVAL. Pre placing all ng the ises, containers responsible by ash and fora such premoval urpose! fn to event a dlorduellects to furnish such Tenant shall trash and garbage service to the tenants i Landlord's Building, Tenant agrees to use only the service provided by Landlord and to pay for iong, such service (including, , without limitation, both the cost of leasing containers and the cost of removal) monthly, as titve no event Landlord more for the Refuse Hai-idling ng Charge than the prevailing competitive In no event t shall Tenant be obligated to p ta provided by Landlord. Tenant shall not rates of reputable independent trash removal contractors for service similar to that pro dispose of any hazardous materials or environmentally sensitive or restricted item of waste in any trash facilities provided ernme tal Requirements (hereinafter defined) removed from Landlord, and l Sho in accordance with at its sole cost and expense, to have the Premises and Shopping 9 Center 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 the set f Tenant under and ovisions Lease ndamental trade nameowithout the therein Premises for the use set itthe P e u ses to be used for any other purpo a or under any otherName Tenant prior written not use or permit In tthif Tenant or anyone else e Fundamental Lease Provisions wrough ithoutrLaunder Tenant ndlord's priorwritten consent of Landlord. Promises e for a procure any and all governmental pro use or trade name Tenant of set forth that consent, such conduct shall constitute an Event of Default. Tenant shall, at its expense, p 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. Except as otherwise set forth in Section 23.28 attached, 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 condi ons of Lease, withou limitation, the provisions oS Section 7.01 hereof and all of thetoter prow sionsof his tiArticle 7t(unless the lPremises the Premises in accordance are are rendered unfit for occupancy by reason of fire or other casualty, in which event Article 12 shall control). Tenant will re 10:00 a.m. until 9:30 keep the Premises open for business to the public at least: (a) every fttondaityndthrboujgh dWtio?nal from authorities) as required by P.M-; and (b) also on Sunday from 11:00 a.m. until 7:00 p.m. (unless prohib Landlord. In addition to any other right or remedy, the Break Point shall be reduced, at Landlord's option, on a by Ladlord. Rent basis for each violation of the foregoing and Tenant shal pay reak Landlord t end centa for each violation. Tenant agrees The per diem reduction' shall bete amount of the applicable sea that Landlord may change the foregoing business hours from time to time °fto refl a ect a?Iicustomo or s B onal sTenan pattems provided that such changes are uniformly applied to the majority shall not be required to keep the Premises open during hours when the Enclosed Mall is dosed to the public. The requirements of this Section 7.02 are subject, with respect to any business contraollledd bi governmental and are a subject Ito tours of operation, to the hours or operation so prescribed by such go r merits further orders. applicable federal, state, and local environmental and other laws, rules, or regulations, guidelines, judg 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 is 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; (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 the Pre stribute, or thereof anty hinterior andbillsfor othermadvert siingoor (notices; and will not cause cobe reproduced, transmitted Shopping Center or shall n audible beyond acts rig Cene any part distributed, at the p conduct or permit accordance with st standards constitute of operation for t Shppig Centertestablshed by Lnot andlord; will considered appropriate any in 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;gWill not permit the a nrkin gn oa standing outside of said area of trucks, traiiers, or other vehicles or equipment engaged ' loading 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, McGrath's Cafk-CapitalCityMaq.FinalFinaiFinai June 7,2006 1 CollinsIJCR 14 " 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 Premllses, writ e? of Landlord any Landlordpaint written approval of such painting, decoration or change; and will remove promP Y p decoration or change which has been applied to or installed upon the exterior or interior of the Premises without Landlord's written approval; doors Pre the windo and ises clean (f) will or broken glass with glass of the/ ame kind, size n quality; will main a n themPremises at its owwill replace any cracked or vermin and expense i aclean, by Landlord and iand at tames desig atedfby Landlord-, will not bum or permit undue useation of from the exterminator designated in proper containers in the n erio of the Prem es the garbage, erolsies'9na'ed by and/rd, a(subject to Secon 6.04) nd will keep such remove or other receceptaoees tl until so removed from the Premises; (g) will comply with all applicable federal, state and local environmental an other laws, rul O,ee1gulattiio guidelines, judgments and orders and all recommendations of any public or private agency having authority poses requirements occupancy of Cl Air which without lior I mitations the requirements imposed by the Americans with Dsabil ties Act whiicheimPremises by Tenant, rates which including, others eand othertrefrigerants (collectively relating to the design and use to the ventin is use of, and disposal of chlorofluorocarbons , requirements relating g, portion of the Premises for any unlawful the "Governmental Requirements" ): will not use or permit the use of any Po 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; will not permit the use of any portion of the Premises for solicitations, demonstrations or any activities u) inconsistent with reasonable standards of a first class shopping mail; es, or any (k) will not use, or permit to be used, the malls or sidewalks adjacent to the Prrx for any other oth er space outside of the Premises for the display or sale or offenng for sale of any mercandise occupation or undertaking; equate (I) will provide ?nseees, invitees ebe provided within the s and employees du ng such periods a the Premises are open fordbus ness; lighting and securityfor it (m) will maintain at all times a full 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; ann of the Rent he Prem sets. S ch remodeling shall include8refini?sh ng, Com (o) will ndhex nse perform a cosmetic remodel to fifth equipment Tenants sole costa Pee furnishings and renewing and/or replacing thethfloor sesgand, iln Landlord's (rea sonable ijudgment all other work nets sary to putthe trade fixtures if necessary at nants Premises ses in in state of appearance and condition conforming pl to Tenant's Work including without l imitation, for landlord's Building. All of the provisions of this Lease which apply Final Plans and Completion Certificate, shall apply to the remodeling; (p) will conduct its labor relations and its relations with employees In such a manner as to avoid all strikes, Tenant furthe pi rio of any work by billing at about the Premises oninection with such work thererlis athnke, pck?ing period d any 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 factlities, 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) other than pay telephones and cigarette vending machines, will not install, or permit to be installedor operate any coin or token operated vending machine„ game machine, pinball machine, pay lockers, pay toilets, scales, McGrath's Caf6-CapitalCityMalFFinalFinalFinal June 7, 2006 1 Collins/JCR 15 and machines for the sale of beverages, foods, candy or other commodies, exet or otherdevices and solely for use by amusement Tenant's devices employees in non sales area and not to exceed collectively two (2) machines (u) will not store, display, rent or sell any audio or video cassettes. Section 7.04: TENANTS 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 or excluded from ant in of ththe structural e Store Design Criteria. Any damage Building or the Premises or in areas reserved the Premises or any person or the Tenant. expense sole res t the Notwithstanding oPmng occurring aas a result of a nts rights etforrth elsewhere in this L alse, L ndlord may ersectladditional andories or other structures over a 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. Section 7.05: OPERATION OF HVAC SYSTEM. siness, erate the and/or Tenant ervni ng the Prem sesregardless of whether such equipment was sta led by Landlord or Tenant soethat HVAC system s of 72 to 75 degrees Fahrenheit or within such range as may be pr authorities o that heat,. ventilation and cooled air are not drained from the be pr ionsescribed inside by the applicable Premises governmental vrnmental maintained within s range 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 Tenant shall furnish Landlord with a list of Tenants and employees' park license numbershwith n fifteen (15)idays after Ten Tenant uest, from such list gwith in the e (5)adays after a dlord tmify Land akes such l requeswriting thereafter of any opens for business deletion orgotthe eP change and at Y addition, Tenant shall notify each employee to writing of the provisions of this Section 7.08 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 such violation, or cause such violation by the employee to cease, as the case maybe, within two (2) days after Landlord's notice ofrvaaation vis given, iolating Tenant shall pay to Landlord, as Additional Rent, an amount Deq a l t( Twenty pivedDooll?r ($25.00) vehicle charge shall vehicle. For any subsequent violations, said Twenty commence without the necessity of further notice, and Five Landlord shall, in addition, have the right to have the violating vehicles towed at Tenant's 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 services, s h ar to similar to that of Tenant or which sells or displays, directly or indirectly, merchandise or other goods, or under the those sold or offered or displayed by Tenant at or from the Premises and w I is of rat Shopping Cesame nter traden toetas Tenant (the "Competing Store") within two (2) miles from the property the neast Competing Store (the foregoing covenant being hereinafter called "Tenant's N assompetiti on ovenanpt"). "?ri entity Tenant" means a proprietorship, corporation, partnership, unincorporated "controlling", "controlled" by or under common "control" with Tenant. The words "controllin9" "controlled" and "control" shall have the meanings given them under the Securities Exchange Act of 1934, as amended. If the Tenants 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 identity 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 onto 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. Notwithstanding anything to the contrary set forth herein, Tenant may with the Landlord's prior written consent, which shall not be unreasonably withheld, use supplemental exterior signage provided it conforms to the Store Design McGrath's Caf6-CapitalCityMall-FinalFinalFinal June 7, 2006 \ Collins/JCR 16 approvals and permits requirements of all governmental atenants in the Shopping Center which have the right to ' Criteria, conforms to the uthorities and receives all necessary from such governmental authorities, and is approved by all disapprove or cause Landlord to disapprove, such supplemental exterior signage. ARTICLE 8: COMMON AREAS Section 8.01: USE OF COMMON AREAS. specifically provided in this Lease, (a) Tenant and its employees and invitees are, except as otherwise spec intended purposes authorized, empowered and privileged during the Term to use the Common Areas for their respective Common Areas shall in common with other persons. Tenant's merit right of to such use any fees or meeting charges room or therefor as auditorium, If Landlord any, may from time to time adopt be subject to such schedules and pay governing the use thereof. withou (b) Landlord shall at all times have th shows t4ae$loutdoor howsnd splays` automabf a andtoithemita r shows or Enclosed Mail for promotions, exhibits. camivaLtype or benefit the customers events, leasing o. any oth? use which, in Landlord's judge nt tends to attractmcustomers o areas, seasonal displays, decorative 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 the d byratandlord to a reasonable ano manner hereinafter set forth and shall mean all sums Incurrd teren in a m nner deeme appropriate and for the s best interests the Shopping n the Common Areas and the Shopping g Center ter (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 and similar items; directional signs and other traffic signals, markers, controls, signs (including all identification signs) both on and off site: striping and the Common and ceaning, painting, sweeping, 00 snow, ice, trash and garbage rempest repaving all parking surfaces, services areas and other portions (iii) operation and/or maintenance of all heating, ventilating and air cooling and other utility systems; trical ll escalator and and systems emergency te water and any other items tfac ties, equipment, and systems furnshed?by Landlord as pa aof the Common elevator ator systems any 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 or self-insured retentions 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 tants management staff [which includes the General Manager, Assistant with the r, secrosaries, bookkeepers andnd em notes (regardless of where the aforesaid personnel are located)] together 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 Landlord 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 andlor 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, including 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; McGrath's Cate-CapftalCityMall-FinalFinalFinat June 7, 2006 t Collins/JCR 17 (ii) depreciation (other than depreciation as above specified); and (iii) any utilities which are directly metered or submeteredto tenants in Landlord's Building. (c) Notwithstanding anything a contained e bin this Lease to the contrary, in ased upon Landlord's estimates which estimates and payments (defined in Section 8.03the CAM Charge thereon shall be subject to adjustments in future billings to Tenant based on Landlord's actual cost, certain it need ete en and agreed that in determining actual costs, Landlorinitsrsole disw xti the will make l o ationa part items between the Enclosed Mall and other portions of the Shopping of Enclosed 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 contract rS foe the origin 1 constructiofnr and linstallaioneof'the Common Areas xsha l be provided hereinabove, none included in the CAM Sum. e, ad improvemen (m) If Landlord pensesaincurred by Landlortd inrcponnection purposes, the Sum shall also include all costsland editio other Common Area P with he operation or maintenance of said additional land. and improvements. (f) The words "maintenance", "maintain" or "maininingsoevered in this Article 8 includes, without Ilmitation, all repairs, replacements and other work and service of any type Section 8.03: CAM CHARGE. Tenant shall pay to Landlord, as Additional Rent, Tenant's share of the CAM Sum in the manner set forth (a) e" shall in in Section 8.03(b) and?? lo andeMo Monthly Amounts CAM Sum for each calePeriodear ForeanyAPartial?ear, the CAM the following Annual Charge will be prorated. Annua_ 1 AM29An Month_unt Time Period. Rent Commencement Date $24,100.00 $2,008.33 through the 60th month From the 61 st month $26,510.00 $2,209.17 through the end of the Term From the 121St month $29,169.00 $2,430.08 through the 1801' month of the Term From the 181" month $32,077.10 $2;673.09 through the 24CP month of the Term mmencement Date and on the first day of each calendar month of pay Landlord on the Reny Co Tenant shall in the Term thereafter Tenant's monthly payment of the CAM Charge. (c) Landlord may have heretofore elected tospread, sLandlord shall determine by mount of ny of the expenses of the CAM Sum over such period of ye periods instead of including such expenses entirely in the year in which expended or incurred, in which event, the annual during ach year amorti amortization amount shall be may have been expended or incurrd prior to the execution of this Leaseetion period, notwithstanding 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 result federal of any , state from time to time environmental or otherslawmulearegulaton, guideline, judgment orcorder, Inade but not limited to, the location, local 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 tions, reno ations, Areas of otherpart of the Shoppi gvCenter fauicitions, o additions anywhere within l Landlord's Building orr to theaCommontime reductions, or any lands or improvements added thereto, construct additional buildings or Improvements on the Common Areas or multi-level or elevated or elsewhere and alterations thereto, der und park ngefacilities, and construct iroodwalls, nand any other improvements over, ort in connection with any art un 9o P of, or all of, the Common Areas in order to enclose same. Section 8.05: RULES AND REGULATIONS. Tenant agrees that Landlord may establish and from time to time change, alter and amend, and enforce and e ga nst Tenant, such reasonable rules and regulations as Landlord may deem necessary or advisable for the proper uch and use, operation and maintenance of the Common anAreas, d without provided that all s n to rules an n regy l all lons a he `tang Te ants in its invitees and employees shall apply equally 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. McGrath's Caf6-Capita1CityMall-FinalFinalFinal June 7, 2006 1 Collins/JCR 18 Section 8.06: LANDLORD'S MAINTENANCE AND CONTROL. ined the C ed, and o Areas in Landlord agrees tand manner. and Landlord shall, as between Landlaord a d Tenant, tat all timesoduring the Term hood provide or cause to be and reasonable condition s, and shall the sole and exclusive the Common Areas atna level tldetermin d by Lando d (andaTenant shall provide, or cause to be provided, security in any ime and provided, adequate security within Tenant's Premises as Tenant deems appropriate). Lan ? a may of the Cotmmon Areasfrom time to time during the Term exclude and restrain any person from use or occupancy who make use of their to time with excepting, however, purposes Tenant and in accordance with he runes and regulations established by Landlord from said areas for, their r intended P Po respect thereto. The rights of Tenant In and to the Common Areas shall at all times be subject to the rights of others to an Landlord may at use othe same in common with Tenant, and it bstructions or interferences created or shall pe mitted by Tena t eoa esult resulting from Tenants operations free and clear of any any time and from time time dose all or any portion of the Common Areas to make repairs or changes, or to such extent ry to prevent a dedication thereof or the accrual of any rights to any person as may, in the opinion of Landlord, be necessary 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. In the its exerci rights Notwithstanding materially and adve sel y affec s access to or visibility of, he P em stes or more than ni ety (90) busine under ss amount this Section Tian ma . Y the such days, and Tenant's pe od immediately prior to such vro ation, Tyen nt's1 M nimum Rent sha 1 abate a drTenantt shafor ll p y last ninety thin n day period immediately percent (6%of its monthly Gross Sales in lieu of monthly within twenty (20) days after the end of each month, six pe ) Minimum Rent. Tenants Additional Rent shall be unaffected by such abatement. Such abatement will remain In affect until Landlord has cured such violation. ARTICLE 9: PROMOTION OF SHOPPING CENTER AND MINIMUM ADVERTISING Section 9.01: MARKETING SERVICE. Deleted: Section 9.02: TENANT'S MINIMUM ADVERTISING OBLIGATION. Deleted. Section 9.03: ADJUSTMENTS AND CHARGES. Deleted Section 9.44: DISSOLUTION OF MERCHANTS 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 asuch ticallt be de ewas ember t ereof a contribute shall tocont ibute to the the same the amount which Tenant immediately prior 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 administration of any such merchants 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 collecliveiy 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 wail without the prior written consent of Landlord. Tenant shall be directly responsible for any and all damages, including, without limitation, damages to Landlord's Building, the Premises and the premises of 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 the commen the prepared a licensed architect, or y engineer a gental approved ro atsan and writing which pp ° als and pemitsT enant shall Construction Work, (b) all necessary governm PP 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 god 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 manner as not to obstruct the access to the premises of any other occupant to the Enclosed Mall nor obstruct other Common. Areas. McGrath's Cafe-CapitalCityMal6FinaiFinalFinal June 7, 2006 \ Collins/JCR 19 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 91: INDEMNITY AND INSURANCE Section 11.Ot: TENANT'S INSURANCE. covenants and agrees that from and after the date of delivery s othe Premises f insurance, inr (a) Tenantf urther the Landlord to Tenant, Tenant will carry and maintain, at its sole cost and expense, the following type amounts specified and in the form hereinafter provided for: Insura (i) Commercial General Liability Insurance. and Commercial advertising in ral li and ' odily nce rcyo'vor death, Premises and Tenant's use thereof against claims for "personal "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 ries or arisin l.01 (ax) s h alt Jun addition extend to a y aout bility of any to the occurrence. The insurance cov?erageerrequked under this ectionpersons one Tenant arising out of the indemnities provided for in Section 11.03, and for (lability relating to the sale or distribution of food andlor alcoholic beverages. Therefore, such policy shall not contain any exclusion for contractual liability coverage for any insurance the under es. T covera of the ing policies separate y two the Premises andho Tenant's use thegate ereof. The certifica eiofbilnisurance evidencing t he commercial general liability form of policies shall specify on the face thereof that the limits of such policies apply separately to the Premises. (it) Boilers. Boiler and machinery insurance in adequate amounts on all fired objects and other fired pressure vessels and systems serving the Premises (if any); an if the said objects and the damage that may be caused by them or result from them are not covered by Tenant's special form 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 of their full replacement cost from time to time during the 10, in an amount not less than one hundred percent (100% Term, providing special form coverage, including but not limited to, protection against the perils included with the standard insura state form of fire and broad form extended coverage insurance policy, tog then with be held?t ast ins Tea nklerinsumage, vandalism and malicious mischief. Any policy proceeds damaged or destroyed unless this company for the repair, reconstruction and restoration or replacement of the property Lease shall cease an terminate under the provisions of Article 12. (iv) Workers' Compensation And Employer's Liability. Workers' Compensation and Employers to Liability insurance affording statutory coverage and containing statutory limits with the Employers Liability portion 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 located. Tenant's obligation to provide the insurance coverage specified in Section 11.01(a)(i) 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) be delivered to each of Landlord and any such other parties in interest within thirty (30) days prior to the expiration of each such policy, and, as often as any such policy shall expire or terminate. Renewal or additional policies shall be procured and maintained by Tenant in like manner and to like extent; (iv) shall contain a provision that the insurer will give to Landlord and such other parties in interest at least thirty (30) days notice in writing in advance of any material change, cancellation, termination or 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 carry, 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 negligence of Tenant. (c) Any insurance provided for in Section I i.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) McGrath's Cafe-CapitalCityMall-FinalFinaiFinal June 7; 2006 \ Collins/JCR 20 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. 9 of insurance in the (a) Landlord shall at all times during the Term carry and maintain the following types amounts specified and In the form hereinafter provided for: claims (I) Commercial General Liability Insurance. Commercial general liability insurance against to the for property damage and bodily injury o death, such to any number insurance pto afford ersons axis a oion of any Zone occurrence than $5,000,000 usive in respect to property damage, 1rry (ii) Landlord's Real and Personal Property. Insurance covering the Landlo's Seecton of any tenant improvements and betterments and property required to be insured by 11.01(a)(iii)) in an amount not less than one hundred percent (100%) of full replacement tect oneaclusiv per Is nc st of excavations, foundations and footings), from time to time during the Term, providing 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 such amount equal to not more than twenty-four (24) times the sum of (I) the monthly requirement of Mini by Rte ants as tenants, plus (it) the average monthly amount estimated from time to time b Landlord to be payable y Percentage Rent and as Additional Rent pursuant to their leases. (b) Any insurance provided for in Section 11.02(a) maybe 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: and shall (C) Tenant shall have no rights in, any policy or part of the CAM Sum of Landlord she a of Landlord's proem utmed to be named an insured thereunder, by reason of payment, pat its s for the insurance provided for in this Section 11.02 or otherwise. Section 11.03: INDEMNIFICATION BY TENANT. 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, on 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 oromission 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 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 willful act of the Landlord which is the cause of damage or injury unless Tenant is required by this Lease to assume or insure against such damage or injury. Tenant's obligations under the aforesaid indemnity shall not be limited to the amount of commercial general liability insurance coverage which Tenant is required to carry. Section 11.04: MUTUAL WAIVERS. Landlord and Tenant hereby waive any rights each 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. McGrath's Caf"apitsIC4Mall-FinalFinalFinal June 7, 2006 \ Collins/JCR 21 • 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 d will contravene Landlord's policies insuring from procuring such policies in companies acceptable to Landlord at regular orates o which will in any uwayrca se an increase p Shopping Center. If Tenant violates any prohibition provided for in the first ncrsk sente to the insurance rates for any portion of the iththe of this Section 11.08, Landlord may, without notice to Tenant, correct the same at Tenant's expense. Increase the premiums Tenant shall lot mdanyviolatiionAdditional of the first senten a of this Section 1'1.06 ?evenof Landlord shall ha a consented to from insurance resulting 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 spac to a joning the Premises or?any other part of the Sho pig Center or the acts or omissions of persons occupying P from bursting, stoppage or leaking of Landlord's Building, or for any loss or damage resulting to the Tenant or its property within the Premises from any water, gas, sewer or steam pipes or other utility lines or for any damage or loss of property it Landlord's Premises f sots or cause whatsoever. Such limitation of responsibility and liability shall not, however, apply negligent omissions, except-to the extent the same are waived or released by Tenant pursuantto 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 1 LU2(2)(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 slab, 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 (al(... m),.nor shall Landlord be required to expend more for any repair or reconstruction pursuant to this Section than the net amount of Insurance proceeds actually received by Landlord and allocable to the Premises on a square foot basis. Section 12.02: TENANTS 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 per I s and administering approvals env rontmenfo la cludinroge t and limitation permits and approvals required from any agency body regulations), within fifteen (15) 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 shall have the option to terminate this Lease upon giving written notice to Tenant of the exercise thereof within one hundred twenty (120) days after the Landlord's Building is damaged or destroyed if: (i) the Premises are rendered wholly unfit for carrying 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)(0); 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 (50%) 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. 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 Rent payable by Tenant under this Lease shall be abated, and the. McGrath's Cafa-CapkalCityMall-FinaiFinalFinal June 7, 2006 % Collins/JCR 22 reduced applicable Break Point and partial Year Break Point (as the case may be) from he date the iPremis ar? of rend ered percentage of the GLA in the premises which is rendered unfit for that period 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 DUN 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, terrano and other special flooring, walls installed at the request of Tenant, doors windows and glass) Tenant in good repair. Notwithstanding the foregoing provisions suchshall repairsgiven makingTenant commence unless and any way be of the for such rep within a reasonable period Landlord falls 'lsl to to necessity for not in thereafter, and 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 ant events of which Lease of its any o perform be responsi therefor) Tehavenant ca used to any of ithetItems Tenant) is required totilnsrure pu suant to Artc le 11 shall Landlo d shallbbe failure u therefor) or under no liability for 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 maybe expressly set forth in this Lease. Section 13.02: TENANT'S DUTY TO MAINTAIN PREMISES. l times, own Tenant emises to the P after de and Tenant will ndalmake all needed.drepairs, and dooall othe wssion ork to or forrthe Premises and very part thereof to not be expense, ma me render the same in good and tenantable condition. Tenant's obligation under this Sectors 13.O?maentall agency, t having limited to, repairing, replacing and otherwise maintaining items as are required by any yo 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 metes, 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, H any (whether such heating ventilating and air conditioning equipment is located inside the Premises, between the telling 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 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, alteration or repair of any part of any sprinkler, life safety or other permit detection or suppression system in or serving the Premises without Landlord's prior approval. regular ntrehall and other waste, damage or injury to the Premises and Tenant shall Initiate and carry out a program 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, after providing Tenant 24 hour prior written notice, at any and all times during usual business hours for the purpose of inspecting the same (and at all other times without notice in the case of emergency). Tenant further agrees that Landlord may from time to time 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 such it constitute a waiver of Tenant's default ost?thereof to oLa dlord as Additional Rent uponrfdemand therefore. In addition, to nd performed, Tenant shall pay ay tt Landlord may install, use, repair or replace any and EII 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 usual constituting an actual or constructive eviction of Tenant. Landlord may also enter the Premises and 11 tints. ur exercise business hours for the purpose of showing the Premises to prospective purchasers, mortgage 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 damage 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 McGrath's Caf&CapitalCityMall-FinatFinalFinal June 7, 2006 \ ColtinslJCR 23 remain the proerty of Tenant, Tenan have the right, not of peranently affix to the iin default underthis Lease, at' any t roe and from time to time during the Term, toarelmove any and provided Tenant is n its personal Is in property which may have stored installed in the Premises. and tof user such propertydefaultwithoutunder oar charge, la dsLanidlord, the right to take exclusive possession such property whether or not it takes possession of such property, shall have the benefit of any lien thereon permitted under the laws of en is ass or such taken ion Is , lord the ch Lan Landlo mannere inc d! ing butdnot llmitedto olperaattiioon of land, w Tenantshall not remove or permit the removal of aid traderfixturresy signs or other personal pr©perty until such possession is relinquished or the lien is removed, as the case may.. be. . Nothing in this Article shall be deemed or construed to permit or allow Tenant to remove any of suco ?mParabipro e pertbetter to the quality, end of the Term without the immediate replacement thereof with similar personal property otherwise render the Premises unsuitable expense or Shopping Center shall immediately repair and otherwise rmthe continued conduct of Teriant's ake good any damage occasioned to h?e Prem sese is caused by Landlord pursuant to by reason of installation or removal of any such personal property unless such damage Section 13.03 and ff Tenant fails to remove such items from the Premises prior to such expiration or termination, or 9 this prthe operty of Landlord, su Lese rrmi atioon /hen inany such event all such personal property shall hereupon become the to su portion such without fu wierich case Tenant shall promptly removen hier items designated bylLadlo d and resto a the Prem be to itoved s pr or Tenant in 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 furnished pursuant to Tenant's Work, alterations, changes and additions by Tenant, light fixtures, floor coverings and partitions, heating, ventilating and air-conditioning equipment, mechanical and plumbing equipment, b but excluding trade fi ures Hand owe era, upon and other personal property specified in Section 14.01, shall become the property o Landlord may designate by written notice to Tenant, prior to Tenant's making such alterations, those alterations, changes, event Tenant hall at Tenants sole cost shall ex and expense promptly remove the and aditions made in the piration or termination of this Leases in after P 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 SLIBLETTING Section 15.01: PROHIBITED. 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 he Premises or any part thereof (herein collectively referred to as "Transfer") without first obtaining in each and every instance the prior written consent of Landlord which Landlord may withhold in its sole discretion. Any attempted Transfer without such prior written consent 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. 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 lord written nnotcce (the "Request Notice") requesting Landlord's consent to the proposed Transfer at least thirty (30) days p to date on which, with Landlord's prior written consent, the Transfer would be eff(ii) tive. The Request Notice shall contain, without limitation, at least: (i) the full identification of the proposed transferee; the most recent financial statements and other evidence of the transferee's financial 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. 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. If after receipt of the Request Notice Landlord requests additional or further Information which Landlord reasonably requires to consider he proposed Transfer, Tenant shall deliver such information to Landlord upon Landlord's request therefor and the period for Landlord consent to the proposed Transfer shall be extended 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 Two Hundred and fifty ($250.00) Dollars to review and defray Landlord's administrative costs, overhead and counsel fees u se c onne do paid athe ehme Tenant delivers the document preparation of any proposed assignment or sublettilf assignment and assumption agreement executed by the assignee and assignor. Landlord agrees not to unreasonably withhold its approval to Tenant's assignment of this Lease or subletting the entire Premises. Without limiting the factors, criteria or circumstances under which it maybe reasonable for Landlord to withhold its consent to a proposed Transfer, it shall not be unreasonabie for Landlord to withhold its consent to a proposed Transfer if any of the following factors, criteria or circumstances are not satisfied: 1. The net worth of the proposed assignee, as determined bya current audited financial statement prepared by a certified public accountant, shows a net worth and working capital in amounts determined by Landlord to be sufficient McGrath's Cofa-CapftaICityMall-FinaiFinaiFinai June 7, 2006 1 Collins/JCR 24 to assure the 825,000: 0 asu crrea ed by changes In he Cost f living Ibetween the dae h eof and the date of s ch Transfer;less than $ 2. The character, business reputation and managerial skills of the assignee or subtenant are at least equal to Tenant's; 3. The assignee or subtenant shall have substantial restaurant experience. 4. The menu items sold from the Premises after the assignment or sublease will be the substantially same as prior thereto, and such assignee's or subtenant's use of the Premises shall not conflict with any exclusive use type clause contained in the lease of any other tenant in the Shopping Center; 5. The proposed transferee shall not be an existing tenant in Landlord's Building or an affiliate of an existing tenant and is not negotiating with Landlord (or has not negotiated with Landlord in the last six (6) months) for space in Landlord's Building; 6. The transferee shall have positive annual earnings in each of its last two fiscal years and an upwards earnings trend; 7. In the case of a sublease, the rental to be paid by the subtenant shall not be less than Landlord's prevailing rental rate per square foot for the Premises. In addition to the foregoing, it shall not be unreasonable for Landlord to withhold such consent if Landlord's mortgage lender fails to give its consent to such assignment or subletting. In addition to the foregoing, if Tenant, for the most recently concluded Year, has been obligated to pay Landlord Percentage Rent, then it shall be reasonable for Landlord to condition any such approval upon Tenant and any such assignee, entering into a modification of this Lease increasing, as of the effective date of such assignment and for the balance of the term of the Lease, the annual amount of the Minimum Rent otherwise payable by virtue of the provisions of this Lease (and each component thereof if such amount changes during the term of the Lease), by 100% of such most recently payable Percentage Rent. In the event a dispute should arise between Landlord and Tenant as to whether Landlord has acted reasonably in failing to give its consent to any proposed assignment or sublease, Tenant shall have the burden proving that Landlord falled to act reasonably and Tenant's sole remedy shall be an action for a declaratory judgment on such issue. In no event shall Landlord be liable to Tenant for any damages (direct or consequential) allegedly suffered by Tenant or any such assignee or subtenant as a result of such failure to consent. ARTICLE M DEFAULTS BY TENANT' section 16:01: EVENTS OF DEFAULT. This Lease is made upon the condition that Tenant shall punctually and faithfully perform and fulfill all of the covenants, conditions and agreements by it to be performed as in this Lease set forth. In addition to events elsewhere stated In this Lease as Events of Default, the following shall be deemed to be an Event of Default (each of which is sometimes referred to as an "Event of Default" in this Lease): (a) the failure by the Tenant to pay Minimum Rent and/or Percentage Rent and/or Additional Rent or any installment or year-end adjustment thereof if such failure continues for ten (10) days' after written 'notice thereof by Landlord to Tenant;,pr (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 terms 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 (a) the sale or removal of a substantial portion of Tenant's property located in the Premises in a manner which is outside the ordinary course of Tenant's business; or (f) the failure to maintain inventory levels and employee staff in accordance with the provisions of Article 7 hereof; or Minimum Rent and/or Percentage Rent and/or (g) repetition or continuation of any failure to timely pay any Additional Rent or other sums reserved hereunder or to timely report Cross 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 of 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 shalt have commenced to cure said failure within twenty (20) days and continues diligently to pursue the curing of the same until completed); or McGrath's Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 \ Collins/JCR 26 (j) 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 (30) days); the insolvency of Tenant or Guarantor of Tenant in bankruptcy or equity sense; any assignment by Tenant or Guarantor for the benefit of creditors; or (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 or debtor rehabilitation laws, state or federal, and in no event shall the Premises or Tenants 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: (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; 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 eai or otherwise;;, (iv) to terminate Tenant's right of possession of the Premises by sufflma y,place 'cgs ossession shall Landlord have the without terminating this Leaser In the rson any tre-entry and y the Premisesaand either treat such property as abandoned, or but not the 's option, to remove any personal al property from 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 distress and sale of the (v) to enter the Premises and without further demand or notice proceed to goods, chattels, personal property and other contents there found and to levy the Rent and Tenant shall pay all costs and t offioers' commissions, including watchmen's wages and sums chargeable by Landlord, andd further Including anhasuchl'` which Landlord may Impose by statute as commissions to the coa l ELF. od flitaes 4Jesw ?,, dommissi©rt9 af$4 other, ct?ges shall immediately attach and become part of the claim of Landlord for Rent, and any tender of Rent without said costs, commissions and charges made, after the issuance of a warrant of distress, shall not be sufficient to satisfy the claim of Landlord. (b) Confession of J md Rent. Tenant covenants and agrees that if there is an Event of Default, then Landlord may, without limitation, cause Judgments for money to be entered against Tenant and, for those purposes, Tenant hereby grants the following warrant of attorney: (i) Tenant hereby irrevocably authorizes and empowers any prothnotary, crk of court, attorney of any court of and all actions commenced against Tenant for recovery of the Rent and/or other a l mounts someone to be paid to Landl dl by Tlena t to appear for Tenant, and assess damages and confess or otherwise enter judgment against Tenant, for all or any part of the Rent and/or other amounts to be paid to Landlord by Tenant including, without limitation, sums under Section 16.02(a), together with interest, costs and an attorneys' commission of five percent (5%) of the full amount of such Rent, amounts and sums, and thereupon writs of execution as well as attachment may forthwith issue and be served, without any prior notice, writ or proceeding whatsoever except as,!may otherwise be required by applicable law; (ii) the warrant of attorney herein granted shall not be exhausted by one or more exercises thereof but successive actions may be commenced and successive judgments may be confessed or otherwise entered against Tenant from time to time as often as any of the Rent and/or other amounts and sums shall fall or be due or be in arrears, and this warrant of attorney may be exercised after the termination or expiration of the Term and/or during or after any extensions of the Term or renewals of this Lease; and (Iii) the provisions of Section 16.02(d) are incorporated herein by this reference thereto. (c) Confession of Judstmant - PossesaJ2n_ Tenant covenants and agrees that 0 there is an Event of - Default or this Lease is terminated or the Term or any extensions or renewals thereof is terminated or the Term or any extensions or renewals thereof is terminated or expires, then, and in addition to the rights and remedies set forth in Section 16.02(b), Landlord may, without limitation, cause judgments in ejectment for possession of the Premises to be entered against Tenant and, for those purposes, Tenant hereby grants the following warrant of attorney: (i) Tenant hereby irrevocably authorizes and empowers any prothonotary, clerk of court, attorney of any court of record and/or Landlord (as well as someone acting for Landlord) in any and all actions commenced for recovery of possession of the Premises to appear for Tenant and confess or otherwise enter judgment in ejectment for possession of the Premises against Tenant and all persons claiming directly or indirectly by, through or under Tenant, and thereupon writ of possession may forthwith issue and be served, without any prior notice, writ or proceeding whatsoever except as may otherwise be required by applicable law; (ii) if, for any reason after the foregoing action or actions shall have been commenced, it shall be determined that possession of the Premises should remain in or be restored to Tenant, Landlord shall have the right to commence one or more further actions as hereinbefore set forth to recover possession of the Premises including, without limitation, appearing for Tenant and confessing or otherwise entering judgment for possession of the Premises as hereinbefore set forth; and (n) the provisions of Section %02(d) are incorporated herein by this reference thereto. McGrath's CafO-CapitalCityMall-FinalFinalFinal June 7, 2006 \ ColUns/JCR 26 (d) In any action or proceeding described in Section 16.02(b) and/or Section 16.02(c), or in connection therewith, If a copy of this Lease is therein verged by Landlord or someone acting for Landlord to be a true and correct copy of this Lease (and such copy shall be conclusively presumed to be true and correct by virtue of such verification), then it shall not be necessary to file the original of this Lease, any statute, rule of court of law, custom or practice to the contrary notwithstanding. Tenant hereby releases to Landlord, anyone acting for Landlord and all attorneys who may, appear for Tenant all errors in procedure regarding the entry of judgment or judgments by confession or otherwise by virtue of the warrants of attorney contained in this Lease, and all liability therefor. The right to enter judgment or judgments by confession or otherwise by virtue of the warrants of attorney contained in this Lease and to enforce all of the other provisions of this Lease may be exercised by any assignee of Landlord's right, title and interest in this Lease in such assignee's own name, any statute, rule of court or law, custom or practice to the contrary notwithstanding. (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 proceedings taken by Landlord to enforce any rights under this Lease. to (ii) The benefit of all laws now made or which may hereafter be made regarding any 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 right to issue a writ of replevin for the recovery of any goods seized under a distress for Rent or levy upon an execution for Rent, damages or otherwise. (lv) 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 Prothonotary or Clerk of Court is hereby authorized and empowered by Tenant at Landlord's Instance to enter a writ of execution or other process upon Tenant's voluntary waiver and further agrees that said real estate may be sold on a writ of execution or other process. (v) All 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 to the termination of this statute L,ease or any condition retaking of possession, Tenant circumstances, or any summary proceedings ortanractio?n foeposs ss on ootherwise 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 relent 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), ses and to the extent Landlord receives the Rent therefor, of the Premises (including, without limitation, legal expensesnand as Landlord may have incurred in recovering possession attorneys' fees) and for putting the Premises into good order and condition. and repairing or remodeling 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 "Costa of Reletting"), 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, 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 reletting, 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 of this excess of Rent provided for in this Lease. Landlord may file suit to recover due Landlord sums hereunder failing dshal der thdeterms to any subsection from time to time, and no suit or recovery.of any portion 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 greater 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 by Tenant penalty, the excess (if any), as determined by Landlord, of (i) the present value of the projected Rent 'paya 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 this 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 Term 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 deflneb above) that Landlord may incur in order to enter into a replacement lease ("Benefit of the Bargain Damages") McGrath's Caf"apitalCityMall-FinalFinaiFinal June 7, 2006 t Collins/JCR 27 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. (o) The "Default Rate" means the rate of interest which is two percent (2%) 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 sha but any of its obligations under this Lease in a manner reasonablatisf toryttoL antl its ction (in rdle an to do Boll h v thee the rig t, any not the obligation, upon giving Tenant at least three (3) days prior 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. (a) 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 all its costs, expenses and reasonable fees to its attorney(s) in connection therewith. (b) In the event that a bankruptcy proceeding is filed by or against Tenant under any chapter of the Bankruptcy Code, or Tenant makes an assignment for the benefit of creditors or commences or otherwise becomes the subject of any insolvency, receivership or similar proceeding, Landlord shall be entitled to recover its reasonable attorneys' fees and costs incurred In or in connection with any such proceeding from Tenant or any trustee, custodian, receiver, assignee or other representative acting on its behalf, all of which fees and expenses shall constitute, in addition to any other sums due and owing under this Lease (i) an obligation of Tenant hereunder, and (it) a component of any cure calm assertable by Landlord under 11 'U.S.C. § 365(b) of otherwise. 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 ff 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 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, lf, as 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 shalt not be liable for any deficiency. In no event shall Tenant have the right to execution against any, property of Landlord other than Landlord's right, title and Interest in the Shopping 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 all Center (except in the case of a sale-leaseback financing transaction the S which Landlord osit whe lease ), Landlord shay urity transfer and assign to such purchaser or transferee any portion may then be held 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 occurring 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 es, because of any sale or transfer (Including without limitation o any sale4e purchaser at of Landlord re salits e grantee liable successors nt s to assigns. Neither Landlord's mortgagee (or its designee) 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 allor any part of the Shopping Center, and to any and all advances to be made thereunder, and to the interest thereon, 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. McGrath's Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 \ Collins/JCR 28 . 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 oftrust ireferred to in Section 18.01 covering the Premises or in the event of the termination of any lease referred to in Secton 18.01 wherein Landlord is the lessee, Tenant, upon the purchaser or lessor's request, shall attom to and recognize the purchaser or Landlord's lessor as Landlord under this Lease. Section 18.03: INSTRUMENTS TO CARRY OUT INTENT. tee Tenant Tenant agrees that, upon the request of Landlord, or any such alessor, nd to carry ogee must of this Articlsha e 11 aecute in and deliver whatever instruments may be required for such purposes the event Tenant fails to do so within fifteen (15) days after demand in writing, Tenant shalt be deemed to have committed an Event of Default. 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 deposit which was delivered to Landlord but was not subsequently delivered to such mortgagee or purchaser. ARTICLE 19 ESTOPPEL CERTIFICATES Section 19.01: TENANTS AGREEMENT TO DELIVER. From time to time within twenty (20) days after request 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 matters as may be reasonably requested by Landlord. Tenant 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 19,02: FAILURE OF TENANT TO PROVIDE. In the event that Tenant fails to provide a Tenant's Estoppel Certificate within twenty (20) days after Landlord's written request therefor, Tenant shall be deemed to have committed an Event of Default. 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 Tenant 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 double 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. McGrath's Caf6-CapitsiCityMall-FinalFtnalFinal June 7, 2006 1 Colilns1JCR 29 ARTICLE 22: CONDEMNATION Section 22.01: ALL OF PREMISES TAKEN. any public If the whole of the Premises shall be taken or condemned either permanently or temporarily eminent domain or quasi-public use or purpose by any competent authority in appropriation proceedings or by any rig of by agreement or conveyance in lieu thereof (each being hereinafter referred to as "Condemnation"), this Lease shall terminate as of the day possession shall betaken by such authority, and Tenant shelf 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 shall have been paid in advance for a period subsequent to the date of the taking of possession. 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 of Tenant's business, then iwithin ninety (90) days after possession is taken by su hhCt to terminate ondemnation half Lease upon notice in writing lathe other party this Lease is so terminated, it shall terminate as of the day 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 'inadvance 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 the ri remainder unsuitable for use as an enclosed mail shopping 2ceen lord hall has taken by to such term Ci n to this ease upon notice In writing to Tenant within one hundred twenty (1:20) days anPos Landlord so terminates this Lease, it shall terminate as of the day possession is taken by the condemning authority, and Tenant shall pay Rent and perform all of its other obligations under this Lease up to that date with a proportionate refund by Landlord of any Rent 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 for 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 anyway 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 noway 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 terms, covenants and provisions of this Lease shall be jointand 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. McGrath's CafB-CapitaiCityMall-FlnalFinalFinal June 7, 2006 \ Collins/JCR 30 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 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 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 States registered or certified mail, return receipt requested, postage 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 the La ay be given other in accordance with or b an ction and neyrforLandlo eos Aed by gent. Any notice p operlyt entto Tenant shallnbe deemed on its behalf by Agent by effective whether or not a copy is sent to to 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 nt to Tenant has assigns and shall inure to the benefit of Tenant in this such Section 23 04 shallabe deemed to require L ndlord to give any been consented by Landlord in writing. Nothing such consent All ll of Tenant's obligations during the Term pursuant to Section 4.05, _4.06, 4.07, 5.011, 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 dealtwith no broker in connection with this Lease, and agrees to and shall defend, indemnify and save Landlord harmless from all claims, actions, damages, costs a Tenant fsaes?and lia ony whatsoever, including reasonable attorneys' fees, that may arise from any claim by or through 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 delay Lease, then performance of such act, t of any not Tenants shall be extended for a period equivalent to the period of suclh de ay. and the period for the performance 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 ays of the Such event. delaying such rrence sha delaying event to Landlord eventtandl hednumberr of d ys of delay claimed to result theref om.. ttTenant's Construction the nature the delaying Com Period shall l be extended for a period equivalent to the period of actual delay. Aft of the nt and allot e sum sduetby' provisions of this Section 23.06 shall not excuse Tenant from the prompt payment Tenant under this Lease and such delay shall not extend he Term. 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 to 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 his 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 application 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 (i) this Lease contains no restrictive covenants or exclusives in favor of Tenant; (ii) 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 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 speck amount, and Tenant hereby expressly waives all claims with respect thereto and acknowledges that Tenant is not relying on any such warranty, McGrath's Caf6-CapitalCityMall-FinalFinaiFinal June 7, 2006 1 Collins/JCR- 31 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) Commencing on the first day of the sixty first month following the date of this Lease and continuing for the , re otherwise balance the Term or any renewals or hopping Center o LaLandlord may ndlord's Buildingaand I nconnecton herewith Landlord may change the size configuration of the Shopping of the Premises either temporarily or permanently. require that Tenant surrender possession of all or a portion Accordingly, Landlord reserves the right in such event, in Landlord's sole and absolute discretion, 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 comparable the same size or nhape of tha ing an exterior location and containing approximately the s me GLA as the P emrises on ththin Shopping g terms and conditions as those contained in this Lease, ether on a temporary basis or for the balance of the Term. Tenant shall only be required to relocate if the Premises is located In the area where such expansion, renovation, remerchandising Tenant or reconfiguration will occur. Landlord shall exercise its right set forth in this Section prior to oti Lease shall ("Landlord's Notice") which shall, include the proposed lease amendment. Any proposed 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 Tenant desires to execute such amendment, it l have shall do so within fifteen (15) days following its receipt of Landlord's Notice and If Tenant fails to do so, an Landlord equal shalto the the further right at any time thereafter to terminate this Lease in exchange for paying Tenant unamortized net cost to Tenant of its leasehold improvements in the Premises, which n` mort? edntet mst shall be Te plus calculated using a straight line amortization schedule and an amortization period eq previously exercised `renewal options provided for by this Lease. In the event Tenant does not desire to execute such amendment, Tenant may terminate this Lease by providing notice to, Landlord within fifteen (15) days following its receipt of Landlord's Notice, in which case Landlord shall pay 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 provided for by this Lease. Tenant shall vacate the Premises and surrender possession thereof to Landlord not later than the date specified in Landlord's Notice and in accordance with the terms of this Lease. Tenant agrees that the execution of the lease amendment or its receipt of the payment of the consideration for the lease termination shall be Tenant's sole remedy in the event Tenant is required to surrender possession of the Premises as provided in this Section. Landlord agrees that all alterations to the Premises necessitated by the expansion, renovation or other change to expense , if the anShopping t elects Co a recreferred ute to in performed to above ywhichiopdrovat its ides fore acost permanent rrelocationdofgthe Tenant 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 mis reasonable and substantiated expenses incurred in moving e re Premises sori iint lly del be mdereby t the reloca a (te premises (and returning to the original Premises, If applicable) which days following Tenant's submission of Tenant's 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: APPLICABLE LAW. The laws of the state i party Institutes Landlord's Building suit) or action for enforcement of any obligati n contained he ein, performance enforcement of this Lease. If either party 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 of any term, covenant, agreement or condition hereicontained shall hnot erein deemed to be a waiver of any subsequent breach of the same or any other terms, covenant, agreement contained. The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any Lease, lure preceding beach Tenant of any term, covenant, agreement or regardless of Landlord's ndowledgethof such p echedi gabrethe ach lat he timTen eaof , agreement or condition of this Lease shall be deemed to have been waived pay the particular Rent so accented, acceptance of such Rent. No covenant, term, by Landlord, unless such waiver be in writing and executed by 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. Landlord's consent to, or approval of, any act by Tenant requiring Landlord's 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 shall 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. 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 Rent nor shall any endorsement or statement on any check or any letter accompanying any such check or payment as Rent or 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 Rentor pursue any other right and remedy provided for in this Lease of 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 (albeit 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 McGrath's Cafe-CapitaiCityMail-FinalFinatFinal June 7, 2006 \ Collins/JCR 32 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 ing contai the balance such rent o$ pursue shall be construed to place Tenant in default of Tenants on to pay Rent If and for immediately preceding 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. Tenant In the event the Tenant hereunder is a corporation, the persons eecua ngd i do base o usinessn the sf thein which hereby covenant and warrant that: the Tenant is a duly constituted corporation q Landlord's Building is located; all Tenant's franchise, corporate and other lienable taxes have been paid to date; all future filed forms, reports, fees and other documents necessary for Tenant to comply with applicable onto laws willle and tl by Tenthis ant L ase due; and such persons are duly authorized by the governing body of such corpor (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. Attached hereto as "Exhibit B is a guarantee of Lease executed by Thomas Scott and Amy Scott, husband and wife, jointly and severally, ("Guarantor"). Tenant acknowledges that Landlord would not have executed this Lease with Tenant unless Guarantor agreed to execute the Guarantee. Landlord and Tenant further agree that in the event Landlord, in its reasonable judgment, determines 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 under Exhibit B, or, if Guarantor is an individual, and Guarantor dies, or becomes incompetent, or any bankruptcy or other 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 Tenant, require Tenant within thirty, (30) days thereafter to deliver to Landlord alternative or additional security in a form and substance reasonably satisfactory to Landlord, so that Landlord will not be deprived of adequate assurance of Tenant's financial ability to comply with its obligations imposed by Lease. In the event Tenant fails to timely submit such alternative security in form and substance satisfactory to Landlord, such failure shall be deemed an Event of Default. Section 23:15: RECORDING.. Lease shall not be 'recorded; however Landlord shall have the right to record a short form or memorandum This ' 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 substance, 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 safety or tat f injury tyoin ealth, , wit hour any law, ordinance, statute, governmental rule or regulation to be capable of wing a risk property and/or the use, storage and/or disposal of which is regulated by any governmen, 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 Protection Agency, the Consumer Products Safety 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 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, HVAC equipment), trade fixtures or other mechanical apparatus therein contain any hazardous materials installed by Tenant, its agents, employees, contractors or and metrrooperly di pose to same,c all at invitees, Landlord, at its election, shall have the right to (I cause law and to remove and Tenant's sole cost and expense, in accordance with applicable 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 such 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 (j) 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, McGrath's Cef6-CapitalCityMall-FinsiFinalFinai June 7, 2006 \ Collins/JCR 33 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 resultant 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. ional Safety Rule 59 Fed, Asbestos Administration and (d) accordance nd s with emented (OtSHA Asbestos Rule"),hLandl rd hereby notifies Tenant of the)presence Reg, sle presence amended RPl or possible presence of asbestos containing materials ("AGMs") and/or presumed asbestos containing materials ("PACMs") (as such terms are defined in the OSHA Asbestos Rule) within the Premises or adjoining e o tr wecommon fire areas, if any. The ACMs and PACMs may take the form of pipe wrap, vinyl asbestos flooring, sprayed proofing, acoustical plaster, insulation, textured ceiling paint and other forms. The specific location of any ACMs or PACMs within the Premises or adjoining Common Areas may be ascertained by Tenant requesting in writing from onm Landlord, without cost or expense to Tenant, the applicable be pond's notification irto mental impacttts rve conducted by Landlord is Landlord regarding aware the Shopping Center. The possible and contraactorctors aware the presence or Cnter in order to orr d sturbanceof presence of such AGMs and/or PACMs during he ptrogress of Tenant's Work avoid or minimize any damage to and/or Construction Wok. Tenant shall obtain a signed acknowledgment from its agents, employees and contractors working lin or Cent ereandnagree agreeing not torpossible presence of ACMs Premises PACMs within the Shopping 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 Premises, and the use Tenant its agents, and removal of any substances contractors or Invite ees. Su h com'pliancehshalll include, of Tenant's business hazardous materials inter alias (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 al reports and other mattersrequired to act it of ih governm en al authorities having jurisdiction; and (iv) notifying each of Center as set forth above. presumed presence of ACMs and PACMs within the Shopping (f) Tenant shall protect, defend, indemnify and hold Landlord harmless of, from and against all laims, actions, liens, demands, costs, damages, punitive damages, expenses, fines and judgments (including legal cos and y comply orr otherf contamination any actual of air, asserted so l,Ilorewaterebynor esullting f om any hazardous materials attorneys spils reason with Section 23 17 ) and/or incurred installed by Tenant, its agents, employees, contractors or invitees at or around the Premises or the Shopping Center or resulting from removal thereof. (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, ocessed or rated at the grease, toxic, or hazardous material, at the Pneacco dance with all applicable Go ernmental rRequireme ts.neIf Tenant Is Premises have been disposed of properly Landlord and give Landlord the details resulting in Tenant's unable to certify either of the above, Tenant shall so notify inability to so certify. (h) Tenant shall surrender the Premises to Landlord upon the expiration or earlier termination of this Lease a condition ies free of hazardous Governmental BRequi Requirements, recommyenTenant and dations of consultants hired by Landlodinand such other easonaible with a 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. McGrath's Cafe-Cap tatCnyMall-FlnalFinalFinal June 7, 2006 \ CollinslJCR 34 Section 23.19: PRIOR LEASE. The effectiveness of this Lease is conditioned upon Landlord obtaining possession of the Premises from the existing tenant thereof and K such possession is not obtained within six (6) months after the Required Opening Date, this Lease, at Landlord's option, shall be null and void. 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 Teat, Guarantor r ntor and or Tenants and orarontor's b sines operations as may be requested by Landlord, any mortgagee prospective 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 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 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 terms 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 waived such right of first refusal with respect to the transaction described in Landlord's RFR Notice. If Landlord timely exercises Landlord's right of first refusal, Tenant or Tenant's trustee shall be deemed to be contractually bound to sell and assign 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 sell 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. The parties hereby specifically acknowledge and agree that the right of first refusal granted to Landlord statutory prohibits, restricts, or conditions the herein is not intended to operate, and shall not be construed, as anprovision that assignment of this Lease within the meaning of 11 U.S.C. § 365(f) or any similar <Section 23.26: TENANT ALLOWANCE Landlord shall reimburse Tenant on account of the cost of Tenant's Work, in the amount and manner hereinafter provided, the amount of such reimbursement being referred to herein as 'Tenant's Allowance' landlord shall set off against Tenants Allowance all costs, charges, fees, and other sums which Tenant is obligated to pay pursuant to the Lease and the Exhibits thereto which have not been paid to Landlord or Agent, as the case may be, at the time of Tenant's request for the paymentof Tenant's Allowance. McGrath's Cafe-CapitalCtiWall-FinalFinalFinal June 7, 2006 \ Collins/JCR 35 A. Amount of Allowance. Subject to the provisions of Section 2.03 (b) of this Lease, Tenant's Allowance shall be the lesser of Five Hundred Thousand Dollars ($500,000.00) or the actual cost of construction of Tenant's Work, as evidenced by the accepted bid therefor. B. Payment of Allowance. Landlord shall pay Tenant's Allowance to Tenant after the completion of Tenant's Work, as certified by Tenant's Architect, and by Tenant; subject however, to Landlord's reasonable verification that Tenants Work has been completed, payment to be made as follows: (a) twenty-five percent (25%) of Tenant's Allowance shall be paid upon Landlord's approval of the Final Plans; and (b) twenty-five percent (25%) of Tenant's Allowance shall bepaid upon completion of twenty-five percent (25%) of Tenant's Work, as certified by Tenant's Architect, and by Tenant, and as verified by Landlord; and (c) twenty-five percent (25%) of Tenant's Allowance shall be paid upon completion of fifty percent (50%) of Tenant's Work, as certified by Tenant's Architect, and by Tenant, and as verified by Landlord; and (d) the balance of Tenant's Allowance shall be paid to Tenant after completion of Tenant's Work, as certified by Tenant's Architect; subject, however, to Landlords verification that Tenant's Work has been completed, but in no event shall the balance of Tenant's Allowance by paid to Tenant prior to Tenant having furnished to Landlord, in form and substance acceptable to Landlord, all of the following: (i) Tenant's affidavit that Tenant's Work has been completed to Tenant's satisfaction and in complete accordance with the Tenants Final Plans and Tenant's construction requirements and certifying to Landlord the amount of the accepted bid for Tenant's Work, which affidavit may be relied upon by Landlord and any deliberate or negligent misstatement or false statement by Tenant therein may be treated by Landlord as an Event of Default. (ii) The affidavit of the general contractor performing Tenant's Work that such Work has been fully completed in accordance with the Tenant's Final Plans and that all subcontractors, laborers and materialmen engaged in or supplying materials for Tenant's Work have been paid in full (iii) An executed and acknowledged Release of Mechanics' Liens executed by Tenant's general' contractor and by every subcontractor and supplier of labor and/or materials engaged in or supplying materials to Tenant's Work specifying that such contractor has been paid in full. (iv) Properly issued certificates evidencing acceptance or approval of the demised premises by appropriate governmental authorities, including the underwriter's approval certificate for the electrical work done by Tenant and acceptance of the sprinkler system. (v) Notice by Tenant to Landlord that Tenant has opened the Premises for business with the public, and setting forth the date on which such opening occurred. (vi) A set of "as-built" plans and specifications for Tenant's Work, together with names and addresses of Tenant's electrical, plumbing, and other contractors, prepared and sealed by Tenant's architect. (vii) Any other statements, certificates or agreements requested pursuant to the Lease or required by Landlord to secure the release of such allowance by any escrow account- C. Abatement of Tenant Allowance. In the event Tenant falls to submit to Landlord the documents referred to in B, above within two (2) years after the date herein, Landlord's obligation to pay the Tenant's Allowance shall be null and void. Section 23.27: TENANT'S EXCLUSIVE. (a) Non-Competition Covenant. Subject to the conditions and limitations set forth below, if the Premises are used by Tenant for the Exclusive Use set forth below, during the Term of this Lease, Landlord shall not permit any portion of the Shopping Center, other than the Premises and the premises demised by a Permitted Lease, to be used by a Competing Business. (b) Exclusive Use. ("Exclusive Use') shall mean the operation of an Irish themed restaurant. (c) Competing Business. A "Competing Business shall mean a business which uses substantially all of its GLA for the Exclusive Use, excluding: (1) any premises occupied under a Permitted tease; (ii) the premises occupied by a tenant which replaces a tenant under a Permitted Lease If such tenant uses Its premises for the sale of all or any portion of the Items constituting the Exclusive Use; (iii) the premises initially occupied by a Major and/or Junior Major, (iv) any store containing less than 500 square feet of GLA or more than 15,000 square feet of GLA; (v) any premises that does not have direct customer frontage and/or customer entry to the Enclosed Mail (A) Internet sales regardless of where initiated, including such sales made from any premises in the Shopping Center occupied by any other tenant. A Competing Business shall also mean the followingi_Applebees; Ruby Tuesdays; and T.G.I. Fridays. (d) Permitted Lease. A "Permitted Lease' is a lease that was executed prior to the execution of this Lease (a "Prior Lease"), a renewal or extension of a Prior Lease, or a new lease that is executed by a person or entity which leased or occupied a premises in the Shopping Center under a Prior Lease. (e) Exclusive Becomes Null and Void. Landlord's Non-Competition Covenant shall automatically become hull and void if: McGrath's Caf6-CapitalCityMall-FlnalFinalFinal ' June 7, 2006 1 Collins/JCR 36 s , (1) An Event of Default exists under the Lease; (Ii) Less than substantially all of the GLA in the Premises is used for the Exclusive Use for more than thirty (30) days unless as a result of a damage or destruction, taking by eminent domain or temporary closings for (x) renovations or (y) in connection with an assignment or sublet of the Premises, which temporary dosing shall not exceed, in the aggregate, more than sixty (60) days. (f) Limitation on Tenant's Remedies. (I) Reduction In Minimum Rent. If Landlord violates Landlord's Non-Competition Covenant and such violation continues for more than thirty (30) days after Landlord's receipt of written notice of such violation from Tenant, then as Tenant's sole and exclusive remedy resulting from such violation, Tenant's Minimum Rent shall be reduced by fifty (50%) percent commencing upon the thirty-first (31st) day after Landlord's receipt of such notice and lasting until the earlier of the day such violation is cured or the expiration of twelve (12) months from the date such violation commenced. It shall be a condition precedent to such reduction that Tenant shall have sustained and verified a reduction in its Gross Sales in accordance with paragraph (ii) below. (ii) Tenant shall submit to Landlord evidence reasonably satisfactory to Landlord confirming a reduction in Gross Sales of at least twenty (20%) percent during the thirty (30) day period during which time Landlord was In continuous violation of the Landlord's Non-Competition Covenant as compared to Tenant's Gross Sales for the same thirty (30) day period during the immediately preceding Year, and Tenant shall continue to submit such evidence to Landlord monthly as a condition precedent to the continued effectiveness of the Minimum Rent reduction set forth in paragraph (1) above. However, notwithstanding the foregoing provisions of this subparagraph (f), if there has been either a general decline in (x) the average Gross Sales for tenants in the local market selling the items constituting the Exclusive Use or (y) Tenant's Gross Sales during the prior Year, Tenant shalt not be entitled to a reduction in the Minimum Rent unless Tenant demonstrates that the decline in Tenant's Gross Sales exceeded either such general decline or the Gross Sales decline incurred by Tenant for such Year by more than twenty (20%) percent. (iii) Failure to Cure Violation. If Landlord's violation of the Non-Competition Covenant remains in effect for more than twelve (12) months, Tenant shall, as of the commencement of the thirteenth (13th) month either: A. Terminate this Lease, which termination shall be effective sixty (60) days from the date of Landlord's receipt of the Election Notice (as defined below) and until such time Tenant may continue to pay reduced Minimum Rent in accordance with Paragraph (i) above; or B. Immediately recommence payment of full Minimum Rent pursuant to the terms of this Lease: C. Such election by Tenant shall be made in writing ("election Notice'), and shall be delivered to Landlord within ten (10) days after the end of such twelve (12) month period. If Tenant fails to timely make such election, Tenant shall be deemed to have elected to pay full Minimum Rent pursuant to Paragraph (IiIXB)' D. Upon either the termination of this Lease or recommencement of the payment of full Rent, Tenant will be deemed to have waived any claim of default against Landlord on account of the violation of Landlord's Non-Competition Covenant. (iv) Unauthorized violation of the Non-Competition Covenant by Third Parties. If a third party occupant of the Shopping Center, in violation of its lease or other agreement with Landlord, commences the sale of the items constituting the Exclusive Use, Landlord shall have no liability to Tenant for damages nor shall Tenant have any remedy against Landlord and such sales shall not constitute a violation by Landlord of its Non-Competition Covenant. However, Tenant may pursue directly against such occupant such rights as may be afforded to Tenant under such circumstances. Landlord shall certify to Tenant whether such occupant is permitted by its lease or other agreement to sell any of the Items constituting the Exclusive Use. (g) Indemnity. In consideration of Landlord's agreeing to the No Competition Covenant, Tenant shall Indemnify, defend and hold Landlord harmless against and from all liabilities, obligations, damages, penalties, claims, costs, charges and expenses, including without limitation, reasonable attorneys fees, which may be imposed upon, Incurred by, or asserted against Landlord arising, directly or Indirectly, out of or in connection with the terms of this Section. In case any action or proceeding is brought against Landlord by reason of the foregoing, Tenant shall, at Tenant's sole cost and expense; resist or defend such action or proceeding with counsel approved by Landlord: (h) Landlord's Restrictions. Notwithstanding. anything to the contrary set forth in this Lease, Landlord agrees that it shall not enter into a Lease with any Tenant for a restaurant greater than five thousand five hundred (5,500) square feet located in the "No Restaurant Area" set forth on Exhibit F, attached to this Lease; and Landlordshall not enter into a Lease for restaurant located in the "No Build Zone' set forth in Exhibit G, attached to this Lease. Section 23.28: LIQUOR LICENSE. (a) Landlord shall assign to Tenant its right to transfer restaurant liquor license R-20526 (the "License") for use at the Premises during the Term of this Lease. Landlord shall remain liable for the payment of the purchase price for the License, and shall pay for the processing of the transfer of the License at the municipal and Pennsylvania Liquor Control Board levels, including legal fees to Landlord's counsel in connection with the transfer and related costs. Tenant shall be liable for the cost of any counsel retained by it in connection with the transfer of the License. (b) After final approval of the transfer of the License, Tenant shall be liable for all renewal/validation and related fees required to maintain and operate a licensed business at the Premises. McGrath's Cafe-CapitalCityMall-FinalFinaiFinal June 7, 2006 % CollinslJCR 37 i • • (c) Upon the expiration or termination of this Lease for any reason whatsoever, Tenant agrees to reconvey and transfer the License to Landlord or its designee, free and dear of all liens, debts, taxes and encumbrances for no additional consideration. In order to secure Tenant's obligation to reconvey the License and its other obligations under this lease, Tenant hereby grants Landlord a first priority security interest in the License, including any renewals/validations, replacements and proceeds thereof. Tenant may not transfer the License to any other person or entity or to any other premises without the prior written consent of Landlord. Tenant may not sell, mortgage, pledge or encumber the license or otherwise permit the License to be levied upon or attached under legal process. (d) Contemporaneously with the execution of the Lease, Tenant shall execute in blank PLCB seller's transfer forms, to be held by Landlord for the express purpose of reconveying the License to Landlord or its designee in accordance with the terms of this Lease. Tenant grants to Landlord a Power of Attorney for the purpose of doing those things and executing any documents necessary to renew and transfer the License in conformity with the terms of this Lease, and Tenant authorizes Landlord to file a UCC-1 Financing Statement evidencing Landlord's interest in the License. (e) At Landlord's request, Tenant shall provide evidence to Landlord that all state taxes and returns have been filed with the Departments of Revenue and Labor & Industry, and Tenant shall provide to Landlord a copy of the yearly License renewal/validation, proof of payment and any required tax clearances no dater than 15 days prior to therequired fling date: (f) Tenant shall notify Landlord of any Notice of Violation or Citation received by Tenant from the Bureau of Liquor Control Enforcement, any objection to the renewal of the License received from the Pennsylvania Liquor Control Board or nuisance action filed by the District Attorney of Cumberland County under Section 611 of the Liquor Code. (g) Any act or omission by Tenant which will reasonably place the License in jeopardy of revocation, non-renewal or suspension shall be treated as an Event of Default hereunder and, in addition to the remedies set forth hereunder, Landlord may in such event immediately exercise its right to reconvey the License to Landlord or its designee without regard to any grace or cure period Tenant may otherwise have pursuant to Article 16 of this Lease. (h) The provisions of this Lease shall' constitute a Bill of Sale for PLCB purposes sufficent to reconvey the License to Landlord or its designee in accordance with the terms hereof. McGrath's CaWCapitalCityMall-FinalFinalFinal June 7, 2006 1 Collins/JCR 38 Section 23.29: 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 Premises 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 le.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 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 WAIVES THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY REGARDING THE WAIVEROF THESE RIGHTS AND NONETHELESS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS. (d) Notwithstanding anything to the contrary set forth herein, for purposes of this Section 23.27 Value City Shall not be considered a Major. IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date first hereinabove written. LANDLORD: PREIT SERVICES, LLC, Agent for PR CAPt ITY LIMITED PARTNERSHIP By, BRUCE GOLDMAN EXECU'T'IVE VICE-PRESIDENT TENANT: NICJO, INC. By: , Title: Attest: Title: McGrath's Cafd-CapitalCityMall-FlnalFinafFinal June 7, 2006 1 Collins/JCR 39 e Z 10 L e6ed ad. 3!q!4X3 7 Zwt ?? 1 - 1 ? 1 1 1 1 ?? .\• E ' V 4' I O J 4 ? Y ?aE O Y V ? Y ao° O s V ; to 'a V -nv" up 1vildvo - l9 r 1 Fr Z 10 Z abed M.1lg14X3 a +? n i.D E -v .Q m V rx. ?t A t r t, d® -4=T 1 71 w Y -? ? - ? Muir w w ,,t? L"1WD ebe AN"" fly- ?w WE anyi ? r„`1' ? pp ? 7wi?a w a Il Q cQr? cr- 1a O !n O € ? Y`t A a t Q ? $ g 4 Ggg C A?+A C W d x 51?°c q'q LR V i? C yo ? yy r ;E N 1. > EXHIBIT "B" GUARANTEE OF LEASE THIS GUARANTEE made this C22 day of 6"U ? 2006, by THOMAS SCOTT AND AMY SCOTT, HUSBAND AND WIFE, JOINTLY AND SEVERALLY having an address at 4300 Kota Avenue, Harrisburg, PA 17110 ("Guarantor") in favor of PR CAPITAL CITY MALL, LLC, having an address at 200 South Broad Street, and Floor, Philadelphia, PA 19102 (`Landlord"). Background On theig day of L2 Ay S+ , 2006 , Landlord entered into an Agreement of tease (hereinafter, together with all prior amendments thereto '*rb collectively referred to as the "Lease") with NICJO, inc. ("Tenant") for certain premises in the Capital City Mall, as more particularly described in the Lease (the "Premises"). Landlord would not have entered into the Lease unless Guarantor had agreed to guarantee to Landlord all obligations of Tenant pursuant to the Lease. NOW, THEREFORE, in consideration; of the execution of the Lease and other good and valuable considerations, and intending to be legally bound, the undersigned hereby absolutely unconditionally and irrevocably becomes surety to Landlord, its successors, endorsees or assigns, for the full, faithful and punctual performance of each and all of the terms; covenants, agreements and conditions of the Lease to be kept and performed by Tenant, in accordance with and within the time prescribed by the Lease, whether at maturity or by declaration, acceleration or otherwise, as well as other liabilities now or hereafter contracted by Tenant to Landlord, together with costs and expenses of collection incurred by Landlord, including, without limitation, reasonable attorney's fees incurred by Landlord in connection with any of the foregoing (hereinafter referred to as the "Liabilities"). The undersigned further agrees as follows: 1,. The liability of the undersigned under this Guarantee shall be primary under any right of action which shall. accrue to Landlord under the Lease, and Landlord may, at its option, proceed initially and directly against the undersigned without having to commence any action or having obtained any judgment against Tenant. Guarantor hereby acknowledges that this Guarantee is an absolute, irrevocable and unconditional guaranty of payment and performance and not merely of collection. Landlord may join the undersigned in any action or proceeding against Tenant. 2. The undersigned waives (a) all notices, including but not limited to (i) notice of acceptance of this Guarantee; (ii) notice of presentment, demand for payment, or default by Tenant; (b) all defenses, offsets and counterclaims which the undersigned may at any time have jointly or severally to any of the Liabilities; (c) trial by jury and the right thereto in any proceeding of any kind, whether arising on or out of, under orby reason of this Guarantee, or any other agreement or transaction between the undersigned, Landlord and/or Tenant; and (d) all notices of a financial condition or of any adverse or other change in the financial condition of Tenant. 3. Landlord shall have the right from time to time, and at any time in its We discretion, without notice to or consent from the undersigned, or without affecting, impairing, or discharging, in whole or in part, the liabilities of the undersigned hereunder, to modify, change, extend, alter, amend, or supplement, in any respect whatever', the Lease or any agreement or transaction between Landlord and Tenant or between Landlord and any other party liable for the Liabilities, or any portion or provision thereof; to grant extensions of time and other indulgence of any kind to Tenant; to compromise, release, substitute, exercise, enforce or fall or refuse to exercise or enforce any claims, rights, or remedies of any kind which Landlord may have at any time against Tenant or any other party liable for the Liabilities, or any thereof, or with respect to any security of any kind held by Landlord at any time under any agreement or otherwise. Nor shall the. Liabilities of the undersigned be affected, impaired or discharged, in whole or in part, by reason of any action whatsoever taken by Landlord including, without limitation, sale, lease, disposition, liquidation or other realization (which may be negligent, willful or otherwise with respect to any security in which Landlord may at any time have any interest or against any other party liable for all or any part of the Liabilities). 4. This Guarantee shall be a continuing guarantee and the liability of Guarantor hereunder shall in no way be affected, modified, diminished, impaired or terminated by reason of any of the following, whether or not notice thereof is given to Guarantor: (i) any subletting of all or any portion of the Premises or any assignment or other transfer of Tenant's interest in the Lease, (ii) any consent, approval, waiver or other action, inaction or omission under or concerning the Lease, (iii) any modifications, renewals, extensions or amendments of the Lease, (iv) any dealings or transactions or matter or thing occurring between Landlord and Tenant, or any of them, (v) any bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or trusteeship affecting Tenant or its successors or assigns, (vi) the release or discharge of Tenant from the performance or observance of any of the terms, covenants or conditions contained in the Lease pursuant to the terms thereof, by operation of law, by reason of any of the events described in Paragraph (v) above, or otherwise, (vii) any change in relationship between Guarantor and Tenant, (viii) the default or failure of Guarantor to perform any of its obligations set forth in this Guarantee, (ix) any action which Landlord may take or fail to take against Tenant by reason of any waiver of, or failure to enforce, any of the rights or remedies reserved to Landlord in the Lease, or otherwise, (x) any failure or refusal of Landlord to re-let the Premises or any part or parts thereof in the event that Landlord shall obtain possession of the Premises after Tenant's insolvency or default, (xi) any failure to collect rent thereof under any such reletting, and (xii) any other circumstance or condition that may result in a discharge, limitation or reduction of liability of a surety or guarantor. 5. If Landlord shall be obligated by any bankruptcy, insolvency or other legal proceedings to repay to Guarantor or to Tenant, or to any trustee, receiver or other representative of either of them, any amounts previously paid by Guarantor pursuant to this Guarantee, this Guarantee shall be deemed reinstated to the extent of that repayment made by Landlord. Landlord shall not be required to litigate or otherwise dispute its obligation to make such repayments if, in good faith and on the advice of counsel, Landlord believes that such obligation exists. McGrath's Caf6-CapitalgtyMall FinalFinalFinal June 7, 2006 1 Collins1JCR 40: 6. GUARANTOR COVENANTS AND AGREES THAT IF THERE IS A DEFAULT BY TENANT UNDER THE LEASE, THEN GUARANTOR HEREBY EMPOWERS ANY PROTHONOTARY, CLERK OF COURT OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR GUARANTOR IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR ANY LIABILITIES, OR ANY CHARGES HEREBY RESERVED OR DESIGNATED AS LIABILITIES OR ANY OTHER SUM PAYABLE BY GUARANTOR TO LANDLORD UNDER OR BY REASON OF THIS GUARANTEE, AND TO SIGN FOR GUARANTOR AN AGREEMENT FOR ENTERING W ANY COMPETENT COURT AN ACTION OR ACTIONS FOR THE RECOVERY OF SAID LIABILITIES, CHARGES AND OTHER SUMS, AND IN SAID SUIT OR IN SAID ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST GUARANTOR FOR ALL OR ANY PART OF THE LIABILITIES SPECIFIED IN THIS GUARANTEE AND THEN UNPAID INCLUDING, AT LANDLORD'S OPTION, THE LIABILITIES FOR THE ENTIRE UNEXPIRED BALANCE OF THE TERM OF THE LEASE, AND ALL OR ANY PART OF ANY OTHER OF SAID CHARGES OR SUMS, AND FOR INTEREST AND COSTS TOGETHER WITH REASONABLE ATTORNEY'S FEES OF 5%. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF SAID LIABILITIES OR SUCH OTHER SUMS, CHARGES, PAYMENTS, COSTS AND EXPENSES SHALL FALL DUE OR BE IN ARREARS, AND SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE TERM OR DURING ANY EXTENSION OR RENEWAL OF THE LEASE. In any action to confess judgment for Liabilities in arrears, Landlord shall first cause to be filed in such action an affidavit made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this Guarantee (and of the truth of the copy such affidavit shall be sufficient evidence) be filed in such action, it shall not be necessary to file the original as a warrant of attorney, any urt, custom or practice to the contrary notwithstanding. THAT GU TOR HAS VOLUNTARILY, INOWINGLY AND GUARANTOR SPECIFICALLY ACKNOWLEDGES WAIVED CERTAIN DUE PROCESS RIGHTS TO A PREJUDGMENT HEARING BY AGREEING TO THE TERMS OF THE FOREGOING PARAGRAPHS REGARDING CONFESSION OF JUDGMENT. GUARANTOR FURTHER SPECIFICALLY AGREES THAT IN THE EVENT OF DEFAULT, LANDLORD MAY PURSUE MULTIPLE REMEDIES INCLUDING OBTAINING A MONEY JUDGMENT FOR PAST DUE AND ACCELERATED LIABILITIES AND EXECUTING UPON SUCH JUDGMENT. FURTHERMORE, GUARANTOR SPECIFICALLY WAIVES ANY CLAIM AGAINST LANDLORD AND LANDLORD'S COUNSEL FOR VIOLATION OF GUARANTOR'S CONSTITUTIONAL RIGHTS IN THE EVENT THAT JUDGMENT IS CONFESSED PURSUANT TO THIS GUARANTEE, 7. If Landlord shall employ counsel to enforce Guarantor's obligations under this Guarantee or any part thereof, Guarantor agrees to pay on demand all of. Landlord's costs in connection therewith, whether suit be brought or not, including, without limitation, reasonable attorney's fees and disbursements. 8. The undersigned and each of them agree and consent to the exclusive jurisdiction of the Courts of Common Pleas of Pennsylvania and/or the United States District Court for the Eastern District of Pennsylvaria in any and all actions and proceedings whether arising hereunder or under any other agreement or undertaking. The undersigned waives, and agrees not to assert, byway of motion, as a defense, or otherwise, in any such suit, action or proceeding brought in any such court, any claim that Guarantor is not subject personally to the jurisdiction of the above-named courts, that Guarantor's property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the sult, action or proceeding is improper or that this Guarantee or the subject matter hereof may not be. enforced in or by such court, and further agrees to waive, to the fullest extent permitted under applicable law, the benefit of any defense that would hinder, fetter or delay the levy, execution or collection of any amount to which Landlord or its successors or assigns are entitled pursuant to the final judgment of any court having jurisdiction. 9. Guarantor hereby consents to service of process by certified or registered mail at Guarantor's address as provided in Section 15 below or in any other manner permitted by law. Guarantor agrees that service In the foregoing manner shall be deemed, in every respect, effective service of process upon Guarantor and be taken and held to be valid personal service upon, and personal delivery to, Guarantor. Guarantor agrees that Guarantor's submission to jurisdiction and consent to service of process by mail is made for the express benefit of Tenant. 10. The waiver of any right by Landlord or failure to exercise promptly any right shall not be construed as the waiver of any other right to exercise the same at any time thereafter. All rights and remedies of Landlord are cumulative and not alternative. If any part hereof is determined to be illegal or unenforceable, such part shall be deemed stricken (or reformed as necessary to eliminate such illegal or unenforceable part but no further) and the remainder hereof shall be unaffected and shall remain in full force and effect. If this Guarantee in its entirety shall be held ineffective or unenforceable by any court of competent jurisdiction then the undersigned shall be deemed to be a tenant under the Lease with the same force and effect as if the undersigned had executed the Lease as Tenant or were named as a joint tenant therein and were jointly and severally liable with Tenant thereunder. This Guarantee shall be a continuing guarantee and security agreement and shall continue and remain in full force and effect until all of the Liabilities have been completely and satisfactorily performed or otherwise discharged by Tenant; the undersigned shall not In any way be released of its obligation to Landlord under this Guarantee so long as any claim of Landlord against Tenant is not satisfied, settled or discharged in full. This Guarantee shall survive the expiration of the term of the Lease. 11. Guarantor represents and warrants to Landlord that: (A) Guarantor has full power, authority and legal right to cause this Guarantee to be signed and delivered, and to perform and observe the provisions of this Guarantee, including, without limitation; the payment of all moneys hereunder. (B) This Guarantee constitutes the legal, valid and binding obligation of Guarantor, and is enforceable in accordance with its terms, except as such enforceability may be limited by reason of (I) any-applicable bankruptcy, insolvency, reorganization, moratorium or similar laws, ordinances, rules or regulations affecting the enforcement of creditors' rights generally, or (ii) general principles of equity. McGrath's Cafe3-CapkalC"all-FinalFinalFinal June 7, 2006 1 Collins/JCR 41 (C) (1) Guarantor, as of the date hereof, is not in violation of any decree ruling, judgment order or Injunction applicable to it nor any law, ordinance, rule or regulation of whatever nature, nor (u) are there any actions, proceedings or investigations pending or threatened against or affecting Guarantor (or any basis therefor known to Guarantor) before or by any court, arbitrator, administrative agency or other governmental authority or entity, any of which under (i) or (ii) above, if adversely decided, would materially or adversely affect Guarantor's ability to carry out any of the terms, covenants and conditions of this Guarantee. (D) Neither the execution and delivery of this Guarantee, nor the consummation of the transactions herein contemplated, nor compliance with the terms and provisions hereof, conflict or will conflict with or result in a breach of any of the terms, conditions or provisions of any order, writ, injunction or decree of any court or governmental authority, or of any agreement or instrument to which Guarantor is a party or by which Guarantor is bound, or constitute or will constitute a default thereunder. 12. Landlord may, without notice, assign this Guarantee in whole or in part. No assignment or transfer of the Lease or subletting of the Premises shall alter, extinguish or diminish the liability of the undersigned hereunder. 13. (A) The liability of the undersigned shall be joint and several, shall bind the respective heirs, executors, administrators and personal representatives of the undersigned and shall Inure to the benefit of Landlord,' its successors and assigns. (B) No delay on the part of Landlord in exercising any right, power or privilege under this Guarantee, nor any failure to exercise the same, shall operate as a waiver of„or otherwise affect, any right, power or privilege of Landlord under this Guarantee, nor shall any single or partial exercise thereof preclude the further exercise of such, or the exercise of any other, right, power or privilege of Landlord under this Guarantee. (C) Neither any waiver or modification of any provision of this Guarantee, nor any termination of this Guarantee, shall be effective unless in writing and signed by the party against which the waiver, modification or termination is sought to be enforced, nor shall any waiver be applicable except in the specific Instance of which it is given. (D) The validity and enforcement of the Guarantee shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without regard to principles of conflicts of law, and such laws shall apply in any action or proceeding arising out of or under this Guarantee. (E) All remedies afforded to Landlord by reason of this Guarantee are separate and cumulative remedies, and it is agreed that no one remedy, whether exercised by Landlord or not, shall be deemed to be in exclusion of any other remedy available to Landlord and shall not limit or prejudice any other legal or equitable remedy which Landlord may have. (F) If any provision of this Guarantee or the application thereof to any person or circumstance shall to any extent beheld void, unenforceable or invalid, then the remainder of this Guarantee or the application of such provision to. persons or circumstances other than those as to which it is held void, unenforceable or invalid, shall not be affected thereby and each provision of this Guarantee shalt be valid and enforceable to the fullest extent permitted by law. 14. Within fifteen (15) days after written request from Landlord, the undersigned shall deliver to Landlord or its designee, an estoppel certificate in form satisfactory to Landlord and the undersigned executed by the undersigned confirming that this Agreement remains in full force and effect in accordance with its terms and ratifying the undersigned's obligations hereunder. 15. All notices, demands, requests, consents, approvals or other communications (collectively, "Notices") desired or required to be given under this Guarantee shall be in writing, and, any law or statute to the contrary notwithstanding, shall be effective for any purpose if sent by recognized overnight courier, prepaid, addressed as follows: If to Guarantor, to it at: Thomas Scott and Amy Scott 4300 Kota Avenue Harrisburg, PA 17110 If to Landlord, to it at: PREIT SERVICES, LLC The Bellevue, Third Floor 200 South Broad Street Philadelphia, PA 19102 Attention: General Counsel All Notices shall be deemed given or served on the date on which such Notice has been received. Any party to this Guarantee may change the address to which Notices shall be delivered to it and its representatives by notice in accordance with this Section 15. 16. Notwithstanding anything to the contrary contained In this Guarantee, Landlord agrees that the maximum liability of Guarantor shall be limited to the amount of Rent (e.g., Minimum Rent plus all Additional Rent) payable by Tenant for the twelve (12) month period commencing upon an Event of Default which gives rise to a claim under this Guarantee. McGrath's Cefe-Cap'italCityMall-FinalFinefFinai June 7, 2006 1 ColfinslJCR 42 IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be executed as of the day and year first above written. Witnesses: Thomas Scott and Amy Scott, husband and wife, jointly and severally (SEAL) SEAL) THOMASSC0 (SEAL) SEAL) AMY S OTT EXHIBIT "C" COMPLETION CERTIFICATE DATED AS OF PART1 SHOPPING CENTER LEASE (the "Lease") dated as of Parties: PR CAPITAL CITY LIMITED PARTNERSHIP ("Landlord") NICJO.Inc. ('Tenant") Premises: Tenant Store No: 800 GLA of Premises: 5.000 square feet Actual Opening Date: Rent Commencement Date: Expiration Date: PART 11 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, e. the Rent Term commences on the Rent Commencement Date set forth in PART] 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 unless otherwise stated; 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 performed 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 terms 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 fully 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 architect, 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. 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 about the Premises; and, McGrath's Cafe-CepitalGityMall-FinalFinalFinal June 7, 2006 1 Collins/JCR 44 , F. 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 executed as of the date first above written. TENANT: NICJO, INC. By: Title: (Corporate Seal) Attest: Title: Jan 23 06 11:34a McGrath's Pub `1ppy,tizo s Steamed Clams One dozen little neck clams prepared with lemon & white wine. elerved with fresh herbz & garlic butter _. 58.00 717-232-9437 p•2 Salads Me6rath's Salad fresh field gr"ns, cucumbiwn , mushrooms, tomatoes & carrots with blacAwod orgrlllod MIA= ... 55.00 Mizamizd e5brimp Stuffed portabella Mushroom Salad One-dozen seasoned, IargQ shrimp faked with roasted red peppers, pesto, served with cocktail sauee. crab meat & fresh mozzamlla cheese. Yourgoing to love pestling them[.- 511.00 ?rved on a bed of field greens tossed with balsamic v1naI$rette _. $10.00 baked Crab Dip fresh lump crab meat baked with Marinated Steok Seled cream cheese &garlic. ed over field greens with mushrooms, *5t izd with bread chips ._ 510.00 tomatoes, red onions, breaded green beans & shredded cheddar cheese. timed with choice of dressing _. 511.00 Seallop>s with Mushrooms Pan seared sea scallops served with a roasted marinated portabella mushroom. Romaine esaiad Topped with roasted red pepper fresh romaine lettuee tossed with roasted Palo sauce ... 59.00 garlic dressing, croutons & parmesan cheszae. SgrvZd with chicken, prepared Smoked Salmon Rosettes blackened or grili¢d _ ss.oo Salmon rolled with cream cheese. Or with Yellowfin lane blaekened or ajzroed with a caper roulade... 59.00 pan-seared - Si0.00 45oups $akizd potato soup McGtirath's famous soup topped with cheddar chitese, scallions & bacon ... $5.00 L&mb Stew with Carrots The carrots arts not traditional but they make a MOM tatstg & interesting dish'... 56.00 f ` Soup of the Vag Made froh dai Ig .- 0.50 ? Q EXHIBIT ID" MENU PAGE 1 OF 4 Jan 23 06 11:35a McGrath's Pub 717-232-9437 p.3 rl m5and wich 0erved with fries) Grillod Corned Seth Grilled Tarkey Rachel With coleslaw, 1000 island dressing With coleslaw, 1000 island dressing 8t Swiss chore on fresh marble & Swiss chow on fresh ryit bread -67-150 marble rye broad _ S7.5U portebella Sandwich fried fish Sandwich 19 roasted portabella mushroom toPped with fresh mozzarella cheese utter dipped haddock with ' , roasted red pepporz &t pvsto sauce l4tuce & tomatoes served on . eServed on a i{ais¢r roll . X8.50 a rustic baguette with tartar sauce ._ ,$5.00 Crabeake iandwlch prepared Maryland afyle with Grilled Marinated Chlcit¢n $rftest 10ttueO & tomatofra. ,$ervzd1 lopped with Guinness S$C1 sauce,. on a Kaiser roll _- sg.o0 cheddar cheese & bacon. Served on a Kaiser roil _. $750 flot Smoked Sausage borks' famous sausage topped with Grilled Salmon & Goat C}1eea sauteed onions & fries. Served on a Open faeed grilled salmon drizzled . mini freneh roll _. X695 with olive oil, topped With a light ereamy goat cheese and served on our house foeaccia. Served Roast Beef Wrap with a side of tarragon mayo Whoi¢-wheat wrap, stuffed with & coleslaw ... *10,95 roast beef. Romaine, red onion, Gorgonzola cheese and hors radish sauce- $7.95 blarney Dieu ChiAm Charbroiled boneiesz chlegirx Crabcake Sandwich breast topped with bleu choose, 10ttuciz, tomato, and onion. Sgvrd Prepared Maryland style with on a sun-dried tomato ban with 10ttuce & tomatoes: ?50rved sun-dried tomato Mayo & on a Kaiser roll - s9.0o fries- &7.25 ?Q EXHIBIT °13" MENU PAGE 2 OF 4 Jan 23 06 11:35a (McGrath's Pub 717-232-9437 P.4 r (Served with a choice of house or romaine salad) ab apherds pie t1A.D.t9. Velmonleo steak A.aaonad ground sirloin with Grilled to doneness, topped with carrots, onions, corn &t peas. TOpped With cole8nnon mushrooms &t a caramelized cheddar eheese. - onion demi-glace. -Served with coleannon &[ Baked to perfection - $IO.oo vegetables ._ $18.oo 'Fish & Chips Pan-Seared Chicken Prepared with batter dipped- Marinated breast of chicken salmon. Served with coleslaw prepared with a roasted tomato tartar sauce.., %11.00 crab sauce. Served with rice & bangers & Mash vegetables ... $15.00 Traditiona[ Irish pork sausages Rack of Iamb sautOM with caramelized onions & gravy. Served Marinated Nee Zealand lamb prepared over eolcannon -.19.0o with s balsamic mint reduction. served with rice & v egetabljta _.524:00 Maryland &tyle Crabcakes Irish Meatloaf Topped with a roasted red peppr Wrapped with bacon & made-trash daily. sauce. Served with rice & &erved with coleannon, vegetables vegetables -.%2o.oo & gravy __ 811.00 Shrimp & Scallops i iWb Cedar plank salmon pan seared bacon wrapped sea scallops with jumbo shrimp on a skewer prepared with a roasted red popper Served with mild wasabi sauce rice & . eaPer citrus sauce. Served with rice & vegetables ... $1T.oo vegetables _. $17.00 Whiskey Chicken Jumbo Shrimp Chicken breasts served with mushrooms ` Skewered shrimp, grilled and topped &[ leeks in whiskey cream sauce ... $1595 with a rtzd wise vinaigrette .- $16,95 12-Ounce try Strip Steak 'Half ROWIDack Charbroiled center-cut stook, Oven-masted duck solved with a topped with a Guinness-portabella r rum-raisin sauce .„ 61895 sauee ... $1695 Jan 23 06 11:35a McGrath's Pub 717-232-9437 p.5 LY ftdlriona/ orero dish Pf / end curved with filet tips in a r0zgmarg mushroom demi glac?z ,_ $12,00 ?"wved with grilled chicken in a light cream aauee with broccoli $10.00 u r? (loved with hies) bacon & Cheddar burger --- $7.50 Cash?J Sieu Gheese burger... ss.50 a~Indressed'8urger - &6.50 ?si?#$ie Burger ..- X7.50 D"sorts Creme bruiee flavored with vanilla bp_anz & topped with caramelized sugar , $7.00 Giziato (Mang flavors) Rich Italipn tgle lee cream _ $6.00 McGrath's ID"sert Caramel custard with seasonal fruit. &prinkled with Irish cream. Topped with whipped cream ... &6.00 Reece's Peanut Sutter Pie Cracker crumb crust filled with chocolate & p¢anut,butter cream. Topped with whipped eream _ .$6.00 Cheese Cake New York algle i$5.00 EXHIBIT Np„ MENU PAGE 4 OF 4 W3ad JNIiM 3aisin0 .,3,, 1I8IHX3 Z C Q Q Q Z s L li `' o N a ? c N H5' i J luoi/a-lo;s Joliayui "Z/l 9-.OS 00 R a J "Z--,09 .J y V 2 N ? LO Ln i' o 0 O O v a) 8 N 7 ?p a g4 0. All C Q l .: Q C() " p O 'a F Q N U c 0 " ?0 N c Ja 0.co 4 F- C a) CL ci 0 U v C )o M U) 3Noz Jc "nnsav...ON u1v 1181HX3 a (? L }r I U J, fII Q m u W z 0 1`f1 3 N 0 6 1 ? a O S a g N G A .io..1191HXA R J lJ W a PLI lJ . 71VW ALMJ Id's t t , ?\ ` t 0 II \ t ' 0 0 0 , ocoo M. 76 q3 ?'? ` .1 t t M t C h ? m c ? q =sag _ 1 a 4 ?1? 0.17 . -- ?. . ?• Am ?? o q m o - ? - o CONFIRMATION OF POWER OF ATTORNEY WHEREAS, pursuant to that Lease dated August 22, 2008 (the "Lease'} by and between NICKJO, INC.:CNI*-) and PR Capital City Limited Partnership ("Landlord-), Landlord let unto Nicjo certain Premises known as store No. 800 in the Capital City Mall Camp Hill, PA WHEREAS, as more fully set forth in Section 23.28 of the Lease, landlord agreed to cam rights in a liquor license to be transferred to Nicjo, subf ec t to, among otter things, NlWs providing a Power of attorney with regard to the liquor license; WHEREAS, by Assignment of Lease date August 22, 2006, Nicjo assigned its rights in the Lease to McGrath's Grille, 'Inc. CTenanr), and Tenant assumed the obligations of Nk*o under the lease. WHEREAS, this Confirmation of Power of Attorney confirms Tenant's grant of a power of attorney to Landlord in accordance with Section 23.28 of the Lease. NOW, THEREFORE, intending to be legally bound, for ten dollars consideration paid by Landlord to Tenant, the receipt whereof is hereby acknowledged by time undersigned, and for other good and valuable cxonsidereton, Tenant hereby agrees: Upon Landlord's request, Tenant shall execute M blank PLCB seller's transfer forms, to be held by Landlord for the express purpose of reconvoying the License to Landlord or its designee in accordance with the terms of Section 23.28 of the Lease. Tenant grants to Landlord a Power of Attorney for the purpose of doing those things and eocecuting any documents necessary to renew and transfer the License in conformity with the terms of Section 23.28 of the Lease, and Tenant authorizes landlord to files UCC-1 Financing Statement evidencing Landlord's interest in the License. IN WITNESS WHEREOF, the undersigned has executed this Confirmation of Power of Attorney, intending to be legally bound, as of this 29th day of August, 2006. MCGRATH'S GRILLE, INC. By. Title: COMMONWEALTH OF PENNSYLVANIA COUNTY OF Q hi n SS On this '3?U, day of 2006, before me a Notwy Public in and for a Commonwealth ofPennsyhania, the turd rgned offcer, personally ued r who acknowledged hini leYself to be the of McGrath's Grille, Inc., a corporation, and that he/she as such officer, being autnOrtzed to do so, execatttd dw foregoing instrument for the purposes therein confitined by signing time natne of the corporation by him/herself as such officer. In Witness Whftwf* I hereunto set my hand and official seal SF..AL] Not PPublice My C4nitnin ?ssion Expires: ' 1 Wcd_ t? J, ?l? COMMONWEALTH OF PENNSYLVA iA NOTARIAL SEAL BARBARA E. PALMER, Notary Public City of Harrisburg, Dauphin County My Commisslon Expires May 23, 2009 ?Xb?A?f ? 7 r ASSIGNMENT OF LEASE THIS ASSIGNMENT, made this AA?day of 4aos t 2006, by and between PR CAPITAL CITY LIMITED PARTNERSHIP (hereinafter called "Landlord"), NICJO, INC. (hereinafter called "Assignor") and MCGRATH'S GRILLE, INC. (dtb/a MCGRATH'S EMERALD GRILLE) (hereinafter called "Assignee"). WITNES_SETH: WHEREAS, on August -)ar 2006, Landlord and Assignor entered into a lease (hereinafter called the "Lease") pursuant to which Landlord let unto Assignor the premises designated as Store No. 800, located in the Capital City Mall, Camp Hill, PA (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 as of the date of this Assignment (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 of its 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 of the Lease hereby assigned at the time and manner set forth in the tease (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 originally as the tenant named therein. Assignee hereby agrees that the obligations herein assumed by Assignee shall inure jointly H:\WPNcGratWsCafe-Collins\Assigament\McGraths-CapitalCity-Assn-C.DOC 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. 3. Assignee covenants and agrees that if there is an Event of Default, then Landlord may, without limitation, cause judgments for money to be entered against Assignee and, for those purposes, Assignee hereby grants the following warrant of attorney: (i) Assignee hereby irrevocably authorizes and empowers any prothonotary, clerk of court, attorney of any court of record and/or Landlord (as well as someone acting for Landlord) in any and all actions commenced against Assignee for recovery of the rent and/or other amounts to be paid to Landlord by Assignee to appear for Assignee, and assess damages and confess or otherwise enter judgment against Assignee, for all or any part of the rent and/or other amounts to be paid to Landlord by Assignee, together with interest, costs and an attomeys' commission of five percent (5%) of the full amountof such rent, amounts and sums, and thereupon writs of execution as well as attachment may forthwith issue and be served, without any prior notice, writ or proceeding whatsoever, (ii) the warrant of attorney herein granted shall not be exhausted by one or more exercises thereof but successive actions may be commenced and successive judgments may be confessed or otherwise entered against Assignee from time to time as often as any of the rent and/or other amounts and sums shall fall or be due or be in arrears, and this warrant of attorney may be exercised afterthe termination or expiration of the term and/orduring or after any extensions of the terra or renewals of this Lease; and (iii) the provisions of Section 5 below are incorporated herein by this reference thereto. -2- 4. Assignee covenants and agrees that if there is an Event of Default or this Lease is terminated or the term or any extensions or renewals thereof is terminated or expires, then, and in addition to the rights and remedies set forth in Section 3 above, Landlord may, without limitation, cause judgments in ejectment for possession of the Premises to be entered against Assignee and, for those purposes, Assignee hereby grants the following warrant of attorney: (i) Assignee hereby irrevocably authorizes and empowers any prothonotary, clerk of court, attorney of any court of record and/or Landlord (as well as someone acting for Landlord) in any and all actions commenced for recovery of possession of the Premises to appear for Assignee and confess or otherwise enter judgment in ejectment for possession of the Premises against Assignee and all persons claiming directly or indirectly by, through or under Assignee, and thereupon writ of possession may forthwith issue and be served, without any prior notice, writ or proceeding whatsoever, (ii) if, for any reason after the foregoing action or actions shall have been commenced, it shall be determined that possession of the Premises should remain in or be restored to Assignee, Landlord shall have the right to commence one or more further actions as hereinbefore set forth to recover possession of the Premises including, without limitation, appearing for Assignee and confessing or otherwise entering judgment for possession' of the Premises as hereinbefore set forth; and (iii) the provisions of Section 5 below are incorporated herein by this reference thereto. 5. In any action or proceeding described in sections 3 and/or4 above, or in connection therewith, if a copy of the Lease is therein verified by Landlord or someone acting for Landlord to be a true and correct copy of the Lease and this agreement (and such copy shall be conclusively presumed to be true and correct by virtue of such verification), then it shall not be necessary to file the original thereof, any statute, rule of court of law, custom or practice to the contrary notwithstanding. Assignee hereby releases to Landlord, anyone acting for Landlord and all attorneys who may appear for Assignee all errors in procedure regarding the entry of judgment or judgments by confession or otherwise by virtue of the warrants of attorney contained herein; and all liability therefor. The right to enter judgment or judgments by confession or otherwise by virtue of the warrants of attorney contained in this Lease and to enforce all of the other provisions of -3- this Lease may be exercised by any assignee of Landlord's right, title and interest in this Lease in such assignee's own name, any statute, rule of court or law, custom or practice to the contrary notwithstanding. 6. 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 underthe Lease, shall be sent to: McGrath's Grille, Inc., 202 Locust Street, Harrisburg, PA 17101. 7. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, administrators, executors, successors and assigns. [SIGNATURE PAGE FOLLOWS Area Below Intentionally Left Blank] IN WITNESS WHEREOF, the parties have caused this agreement to be.executed the day and year first above written. LORD: LANDLORD: PR IT SERVICES, LLC, Agent for PR CA ITAL CITY LIMITED PARTNERSHIP BYc BRUCE GOLDMAN EXECUTIVE VICE-PRESIDENT ASSI_ GNOR: NICJO, INC. (Corporate Seal) (Corporate Seat) Titles Guarantors: The undersigned, guarantors of the Lease pursuant to that certain Guarantee of Lease, dated of even date with the Lease (the "Guaranty"), hereby acknowledge this Assignment and affirm all obligations of the Guaranty and agree that the Guaranty continues in full force and effect: ASSIGNEE: MCGRATH'S GRILLE, INC. Ex ?) ? 0+3 LANDLORD'S CONSENT TO ASSIGNMENT McGrath's Grille, inc 3506 Capital City Man Drive Camp Hill, PA 17011 3801 PAXTON ST HARRISBURG, PA (7171975-5630 ??.c^e?-rat ciwc?? THIS LANDLORD'S CONSENT TO ASSIGNMENT is entered into among McGrath's Gr le, Inc ('Borrower"i whose address is Ofi Capital City Mall Drive, Camp. Hill, PA. 17011: COMMERCE BANKMARRiSBURG N.A. 1" ender`), whose address is COMMERCIAL BUSINESS DEPARTMENT, 3601 PAXTON STREET, HARRISBURG, PA 17111; and PR CapitalC Limited Partnership ("Landlord"), whose address is clo PRiET Services, LLC, 200 S. Broad St., The Belivue, 3rd Fir, Philadelphia, PA 19102 B enter into, an agreement whereby Lender has acquired or will acquire a security interest or other -interest in the Collateral. of the Collateral may be affixed or otherwise become located on the Premises. To induce Lender to extend the LOa er against such security Interest in the Collateral and for other valuable consideration, Landlord hereby agrees with Len rower as follows. COLLATERAL DESCRIPTION. The word "Collateral" means certain of personal property in which Lender has acquired or will acquire a security interest, including without limitation the folio c property: All Invent, Chattel Pa a s, Equipment, General Intangibles and Fixtures; whether any of the foregoing is owned now or acquired letory sa Ins, additions, replacements, and substitutions relating to any of the foregoing: all records of any kind relating to BORROWER'S ASSIGNMENT OF LEASE. Borrower hereby assigns to Lender all of Borrower's rights in the Lease, as partial security for the Loan. The parties intend that this assignment will be a present transfer to Lender of all of Borrower's rights under the Lease, subject to Borrower's rights to use the Premises and enjoy the benefits of the Lease while not in default on the Loan or Lease. Upon full performance by Borrower under the Loan, this assignment shall be ended, without the necessity of any further actior?y any of the parties. This assignment includes all renewals of and amendments to the Lease or the Loan, until the Loan is paid in full. No mendments may be made to the Lease without Lender's prior written consent, which shall not be unreasonably withheld or delayed. CONSENT OF LANDLORD. Landlord consents to the above assignment. It Borrowair defaults under the Loan or tho Lease, Lender may reassign' the Lease, and Landlord agrees that Landlord's consent to any such reassignmoni d• So long as« ` Lender has not entered the Premises for the purpose of operating a business. Len C will have no liability under the Lease, irvrhmPrtg-witheet J I • . Whether or not Lender enters into possession of the Pre ses for any purpose, Borrower will remain fully liable for all 04 obligations of Borrower as lessee Wider the Lease. it, 4k ll Sha1? bf aS P? ??iG?'3 LEASE DEFAULTS. Both Borrower and Landlord agree and represent to Lender that, to the best of their knowledge, there is no breach or offset existing under the Lease or under any other agreement between Borrower and Landlord. Landlord agrees not to term) the Lease despite- any default by Borrower, without giving Lender written notice of the defeWt and an opportunity to cure the detault within ¢ MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: This Agreement shall extend to and bind the respective heirs, personal representatives, successors and assigns of the parties to this Agreement. F+Rr U-1-03 00 a? L , ? trgptfprY nr annnnz A to whom Lender mFiy irancfa any claim or tntms to wl>,irh thi; Aoreamont eh-II »nnly. This Agreement shah be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. If 0o L pc? v shelf not be deemed to have waived any rights under this Agreement unless such waiver is in wraing and signed b LRrFler. Without n0 ce to Landlord and without affecting the validity of this Consent, Lender may door not do anything it deems appropriate necessary with respect to the Loan, any obligors on the Loan, a-6;;_ ; Including without limitation extending, renewing, earranging, or accelerating cr-8TTT-Cntr=-t fa, 9- any of the Loan Indebtedness, t " • AMENDMENTS. This Agreement, t s, constitutes the entire understanding and agreement of the parties as x to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shah be effective unless given in writing and y signed b arty or partie sou hLtD be charged or bound by the It tr ngr endafnt. fk,.d q,,f lr"tltis A9reemant unless sue b vtr is given in writing JAL hall net be deemed to have we a y nda NO WAIVER Laadiio in exercising any right shall operate as a waiver of such right or any other )gnad by . No delay or omission on the part of 4 rl h r by L I a provision of this Agreement shall not prejudice or constitute a waiver of L ' right otherwise to demand ?ict compliance i to provision or any other provision of this Agreement. No prior waiver b nor any course of dealing between/k,pf\ ?ti_ ?r_ri•^ i'^ ', shall constitute a waiver of any of L rights or of any of L obligations as to any future transactions. t Whenever the consent of LciVfts required under this Agree nt, the granting of such onsent b any instance shall not constitute continuing consent to subse, u instances where such copse is required and in all ce s such cosent may br ted orwithheld in the sole y di ration of s 1 ?J 1 ?S `? tfl' SEVERABILITY. It a court or comparent jt3risdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any ejrcumsunre, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. it feasible, the oxtending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenfoiceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this. Agreement. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Agreement. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America Words and terms per, mePt- as -leK s(T y vow ,vto LANDLORD'S CONSENT TO ASSIGNMENT Page 2 Loan No: 19593850-05 (Continued) used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise' defined in this Agreement shah have the meanings attributed to such terms in the Uniform Commercial Code: Agreement. The word "Agreement* means this Landlord's Consent to Assignmen r as this Landlord's Consent to Assignment may be amended or modified from time to time, together with all exhibits and schedules efts shed to is Landlord' Consent?to As?ipnmerLt irom time to time. 1 11 XI hnt XY??J} Borrower. The word "Borrower` means McGrath's Grille, Inc and includes all co-signers and co-makers signing the Note and all their successors and assigns. 00, ,tie gogtiep, @I gh4&1.4aMW-a-QA. D Landlord. The word "Landlord" means PR Capital City Limited Partnership, and jr, used for convenience purposes only. Landlord's interest in the Premises maybe that of a fee owner, lessor, sublessar orlienholder, or that of any other holder of an interest in the Premises which may be, or may become. prior to the interest of Lender. Lease. The word "Lease" means that certain lease of the Premises, dated August 22, 2006, between Landlord and or rower.. r Lender. The word "Lender" means COMMERCE BANKIHARRISBURG N.A., its successors and assign s. N((??1,? 0 ,t ILt e/?l Loan. The word "Loan" means any and all loans and financial accommodations from Lender to Borrower v71te er now or hereafter existing, and however evidenced. Nate. The word "Note" means the Note executed by McGrath's Grille, Inc in the principal amount of $100,000.00 dated August 23, 2006, together with all renewals of, extensions of, modifications of, refinancings' of, consolidations of, and substitutions for the note or credit agreement. Premises. The word "Premises" means the real property lat:ated in Cumberland County, Commonwealth of Pennsylvania, commonly known as 3506 Capital CityMati Drive, Store 800. Camp Hill, PA 17011. t agr ag 1o,11111 i All t! p ?GREAAD ALL THE PROVISIONS OF THIS LANDLORD'S CONSENT TO ASSIGNMENT, 9&FH;l8WF4-"8 -111JI(ftioRi AND BORROWER AND LAND RDD.?AGREE TO ITS TERMS. THIS AGREEMENT IS DATED AUGUST 23, 2006- l r `?? C A I THE l5 " AND ?A GE A THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER; MCGRATH'S R1LLE, NC Iseall By. homas J. co resident of McGrath's Grille, Inc LANDLORD: LENDER: COMMERCE BANKIHARRISBUR A. PR CAP Cl LIMITED PARTNERSHIP By, iseall er for PR Capital' City uthorize O rc mlted Partnership µ5{9"D i_"I?r.Vr S7].IG VA G„" IWW,..M.sM rn..a t:w,H?. ?OfM M,y"M w,rw : I" t, y1Wl!!SN lI•AV.CI16RltlR lA.'.{?rH..W.,".. - Loan No. 19593850-05 RI)QER This Rider is incorporated into, and made a part of, the Landlord's Consent to Assignment ("Consent") dated as of August 23, 2006 by and among the undersigned and regarding Store 800 in the Capital City Mall, 3506 Capital City Mall Drive, Camp Hill, PA. Any conflict between this Rider and the Consent shall be governed by this Rider. 1. Lender shall notify Landlord in writing promptly upon the full performance (as such term is used in paragraph "Borrower's Assignment of Lease") under the Loan. Lender hereby agrees to execute promptly (but not later than 30 days after Landlord's written request) such reasonable document as Landlord may require to confirm that the assignment has ended because of the full performance under the Loan, or for any other reason that the assignment may have ended. Lender shall notify Landlord in writing promptly of any default of Borrower under the Loan. 2. For purposes of paragraph "Borrower's Assignment of Lease" the term "material amendment means an amendment of the Lease that (a) extends the Term of the Lease; (b) increases the Rent; or (c) terminates the Lease. Within fifteen (15) days after Lender has been notified of a requested material amendment, Lender agrees that it shall notify Landlord in writing (the "Consent Notice") whether or not Lender approves the material amendment. Further, Lender agrees that its failure to deliver the Consent Notice within said fifteen (15) days will be deemed to be Lender's irrevocable approval of the requested material amendment. 3. Any reassignment of the Lease by Lender (as such right is afforded Lender pursuant to Paragraph "Consent of Landlord") shall' be under and subject to the provisions of Article 15 of the Lease. Without limitation, the reassignment shall be subject to Landlord's consent to the same degree and extent as Landlord's consent is required for an assignment of the Lease by the Tenant. No reassignment by Lender shall be effective unless and until Lender has effectuated the assumption of all obligations, duties and liabilities under the Lease by such assignee and presented Landlord with reasonable documentation of the same. Without limiting any provision of Article 15 of the Lease, no reassignment of the Lease shall relieve Tenant under the Lease for any obligation, duty, or liability under the Lease. Lender and Borrower hereby acknowledge and agree that Lender's reassignment right shall in no way limit Landlord's rights and remedies under the Lease. Without limitation, in the event of a default that is not cured within the applicable cure period, Lender's right to reassign the lease shall not limit Landlord's rights set forth in Article 16 of the Lease, including, but not limited to, the right to Confess Judgment. 4. The parties acknowledge that Tenant's rights in and to the liquor license, as provided in Section 23.28 of the Lease, are not assigned by this Agreement to Lender. Notwithstanding the foregoing, in the event Lender reassigns the Lease in accordance with the Agreement, then Landlord agrees to cooperate (at no cost to Landlord) in the transfer of the Liquor License to Lender's assignee, subject to the provisions of the Lease, including, without limitation, Section 23.28 thereof. H:\WP\McGrath'$Caf& Collins\Collateasl Assignment of Lease\Mcen'ath's-CapitalCiq-CollateralAsmtRider -Final -Ln05.doc Loan No. 19593850-05 5. A. If Lender enters the Premises or takes possession of the Premises for any reason, Lender will thereupon be deemed to have assumed all obligations as tenant under the Lease (except for the obligation to operate a business in the Premises) for the period arising from and after such time (including, without limitation, the obligation to pay all rent accruing then and thereafter under the Lease) and ending upon the possession of the Premises and all obligations under the Lease having been assumed by Lender's permitted assignee, unless Lender's obligations have ended earlier in accordance with Sections 4B and 4C below. Without limitation, any failure to pay rent or perform any obligation under the Lease, whether before or after Lender has taken possession of the Premises, shall be a default of the Lease as provided in the Lease and shall entitle Landlord to exercise all rights and remedies under the Lease. B. Lender agrees that its possession of the Premises shall be limited to six (6) months (the "Permitted Possession Period') and such possession is conditioned upon Lender curing any outstanding defaults under the Lease (excepting only the obligation to operate a business in the Premises). If Lender has not reassigned the Lease as provided in Section 4A on or before the expiration of the Permitted Possession Period, then (a) as of the expiration of the Permitted Possession Period all of Lender's interests in the Lease shall automatically be, and hereby are, reassigned to Borrower, without the need of any further documentation; and (b) Lender's obligations under the Lease shall cease to accrue (provided Lender has not held over in possession of the Premises). C Lender shall have the right at any time, upon thirty (30) days prior notice to Borrower and Landlord (the "Surrender Notice"), to give up possession of the Premises prior to the expiration of the Permitted Possession Period. On the thirtieth (30") day after Landlord's receipt of the Surrender Notice, (a) all of Lender's interests in the Lease shall automatically be, and hereby are, reassigned to Borrower, without the need of any fiuther documentation; and (b) Lender's obligations under the Lease shall cease to accrue (provided Lender has not held over, in possession of the Premises). D. Notwithstanding that Bank's obligations under the Lease are limited in accordance with the Provisions of this Section 4, the parties hereby understand and agree that nothing herein shall be deemed to limit or amend Borrower's obligations under the Lease. 6. For purposes of paragraph "Lease Default", the "Cure Period" shall mean the following: a) If the default is of the nature that Tenant under the Lease is afforded no period within which to cure the default, the Cure Period for such default is 5 days after written notice. b) If the default is of the nature that Tenant under the Lease is afforded 10 or fewer days to cure, the Cure Period is 15` days after written notice. C) If the default is of the nature that Tenant under the Lease is afforded 11 or more days to cure, the Cure Period is the same as is afforded to Tenant after written notice plus five additional days. By way of clarification, the Cure Period as provided in this Article 5 is solely for the benefit of Lender and not Borrower. 7. Lender and Borrower acknowledge and agree that this Agreement does not expand or extend any right or privilege of Tenant under the Lease nor does it limit or amend any obligation of Tenant under the Lease' and, further, that Lender has no more right or interest than Tenant possesses under the Lease, except as expressly provided in this Agreement. Without limitation, H:\WPVMcGrath'sCafe-CollinslCollateral Assigpment of Lcase\Mcoratifs-CapitalCity-CollateralAsmtRider -Final -Ln05.doc Loan No. 19593850-05 in the event of a default by Tenant or, as applicable, Lender as assignee of the Lease, Landlord retains all rights and remedies as set forth in the Lease. 8. Confession of Jude ent - Possession. Lender, as assignee of the Lease, covenants and agrees that i there is an vent o e au t under the Lease beyond the applicable cure period or the Term is terminated or expired, then, and in addition to the rights and remedies set forth in the Lease, Landlord may, without limitation, cause judgments in ejectment for possession of the Premises to be entered against Lender, as well as Tenant, and, for those purposes, Lender hereby grants the following warrant of attorney: (i) Lender (as assignee) hereby irrevocably authorizes and empowers any prothonotary, clerk of court, attorney of any court of record and/or Landlord (as well as someone acting for Landlord) in any and all actions commenced for recovery of possession of the Premises to appear for Lender (as assignee) and confess or otherwise enter judgment in ejectment for possession of the Premises against Lender (as assignee) and all persons claiming directly or indireepy by, through or under Lender (as assignee), and thereupon writ of possession may forthwith issue and be served, without any prior notice, writ or proceeding whatsoever except as may otherwise be required by applicable law; (ii) if, for any reason after the foregoing action or actions shall have been commenced, it shall be determined that possession of the Premises should remain in or be restored to Lender (as assignee), Landlord shall have the right to commence one or more further actions as hereinbefore set -forth to recover possession of the Premises including, without limitation, appearingg for Lender (as assignee) and confessing or otherwise entering judgment for possession of the Premises as hereinbefore set forth. In any such action or proceedin , or in connection therewith, if a copy of this Agreement and/or the Lease is therein verified by Landlord or someone acting for Landlord to be a true and correct copy of this Agreement and/or the Lease (and such copy shall be conclusively presumed to be true and correct by virtue of such verification), then it shall not be necessary to file the original of this Agreement and/or Lease, any statute, rule of court of law, custom or practice to the contrary notwithstanding. Lender (as assignee) hereby releases to Landlord, anyone acting for Landlord and all attorneys who may appear for Lender (as assignee) all errors in procedure regarding the entry of judgment or judgments by confession or otherwise by virtue of the warrants of attorney contained in this Lease, and all liability therefor. The right to enter judgmentor judgments by confession or otherwise by virtue of the warrants of attorney contained in this Lease and to enforce all of the other provisions of this Lease may be exercised by any assignee of Landlord's right, title and interest in this Lease in such assignee's own name, any statute, rule of court or law, custom or practice to the contrary notwithstanding. Landlord hereby acknowledges and agrees that Lender's foregoing confession of judgement is not a confession for rent or monetary damages. Tenant hereby acknowledges that the foregoing Confession of Judgment for Possession in no way limits or impairs any obligations of Tenant, or rights of the Landlord, pursuant to the Lease, including, without limitation, Landlord's rights pursuant to Sections 16.02(b),(c) and (d) thereof of the Lease. 9. 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 States registered or certified mail, return receipt requested, postage prepaid and received or refused by the addressee, or (b) when sent by courier guarantying overnight delivery, addressed to appropriate party at the respective addresses set forth in the Agreement and/or such other address or addresses as any part yy may designate by notice to the others in accordance with this Section and received or refused by the addressee. Any notice by . the Landlord may be given on its behalf by its Agent or by an attorney for Landlord or Agent. 10. Lender understands and acknowledges that the Lease, and all interests therein, are, and H:1WP\McGrath'sCafe-CollinslCoilatemI Assignment of L:easeuNcGtatbOs-CapitalCity-CollatmtAuntRider -Final -1.05.doc . Loan No. 19593850-05 always shall be, subject and subordinate to any lease wherein Landlord u h the less aan to or lien of any or all mortgages or deeds of trust, regardless of whether of the deeds of trust now exist or may hereafter be created with regard to all or any part Shopping Center, and to any and all advances to be ad thereunder, andto h interest thereof Such and all modifications, consolidations, renewals, replacements ??? instrument. Nonetheless, subordination shall be effective without the execution of any Lender (as assignee) agrees that, upon the request of Landlord, or any such lessor, mortgagee or trustee, Lender (as assignee) shall execute and deliver whatever reasonable instruments may be required for such purposes and to carry out the intent of this Article 9. 11. From time to time within twenty (24) days after request in writing therefor from Landlord, Lender (as assignee) agrees to execute and deliver Landlord, such or to such other addressee may addressee or addressees as Landlord may designate (and Landlord and any rely thereon), a statement in writing in form and substance satisfactory to La lord herei requesten ed "Estoppel Certificate"), certifying as to such matters as may b Landlord. Lender expressly agrees that Landlord may assign its interest in the Estoppel Certificate to its lender(s) at any time who may act in material reliance thereon. In witness whereof the undersigned have executed this Rider intending to be legally bound: LANDL RD: PREIT SERVICES, LLC, Agent for PR CAPITAL CITY LIMITED PARTNERSHIP BY: 1 f Name a Title: LENDER Commerce ank/Harrisbur ,NA BY Name and Titles ?.?,... /? BORROWERITENANT McGrath's Grille, Inc. B Name and Title: 454575v1 H.\WP\McGrath'sCafe-Colligs\Cotlateral Assignment of l ease\McGratWs-CapitalCity-CoflatelalAsmtltida -Final -Ln05Al BorroWer, McGrath's Grille, Inc Lender: COMMERCE BANKIHARRISBURG N.A. 3508 Capital City Mall Drive COMMERCIAL BUSINESS DEPARTMENT Camp HUI, PA 17011 3801 PAXTON STREET HARRISBURG, PA 17111 17171 975-8530 ?l?Ie,?4?1 ?1?? THIS LANDLORD'S CONSENT TO ASSIGNMENT is entered into among McGrath's Grille. Inc ('Borrower), dress is 3505 Capital City Mall Drive, Camp Hill, PA 17011; COMMERCE BANKIHARRISBURG N.A. f"Lender"I, whose eCOMMERCIAL BUSINESS DEPARTMENT,3801 PAXTON STREET. HARRISBURG, PA 17111: and PR Capital City Limited c/o PREIT Services, LLC ("Landlord"), whose address is 20D South Broad Street, The Bellevue, Third Floor, Philadelphia, PA T910 _a?t _ --t-, into, or are about to enter into, an agreement whereby Lender has acquired or will acquire a security interest or other into `teral. Some or all of the Collateral may be affixed.or otherwise become located on the Premises. To induce Len n the Loan to Borrower against such security interest in the Collateral and for other valuable consideration, Landlord h es with Lender and Borrower as follows. COLLATERAL DESCRIPTION. The word 'Collateral' means certain of personal property in which Lender has acquired or will acquire c isuu_m I_ r__ a security interest, including without limitation the folio rc propertyc All Inventory, Chattel Pa s, Equipment, General Intangibles and Fixtures; whether any of the foregoing is owned now or aquired tat as ns, additions, replacements; and substltvtlons relating to any of the foregoing; all records of any kind relating to BORROWER'S ASSIGNMENT OF LEASE. Borrower hereby assigns to lender all of Borrower's rights in the Lease, as partial security forthe Loan. The parties intend that this assignment will be a present transfer to Lander of all of Borrower's rights under the Lease, subject to Borrower's rights to use the Premises and enjoy the benefits of the Lease while not in delault on the Loan or Lease. Upon full performance by Borrower under the Loan, this assignment shall be ended, without the necessity of any further actio y any of the parties. This assignment includes all renewals of and amendments to the Lease or the Loan, until the Loan is paid in full. No amendments may be made to the Lease without Lender's prior written consent, which shall not be unreasonably withheld or delayed. 104 t#L? CONSENT OF LANDLORD. Landlord consents to the above assignment. If Borrow efaults under the Loan or the Lease, Lender may reassign the Lease, and Landlord agrees that Landlord's consent to any such reassignment will d. So tong as Lender has not entered the Premises for the purpose o1 operating a business, Le er will have no liability under the Lease, inekrthdib 181F F nt. Whether or not Lender enters into possession of the Pre ises for any purpose, Borrower will remain fully liable for all all Pat r"eMIs-66*-60d&ZlbgL obligations of Borrower as lessee under the Lease_ . beess and allsilimiable in I! aii 00I at tim^ 11 1'4-1" If " -? LEASE DEFAULTS. Both Borrower and Landlord agree and represent to Lender that, to the best of their knowledge, there is no breach or offset existing under the Lease or under any other agreement between Borrower and Landlord. Landlord agrees not to termin the Lease, despite any default by Borrower, without giving Lender written notice of the default and an opportunity to cure the default within 8- ho liii, 1 i r MISCELLANEOUS PROVISIONS- The following miscellaneous provisions are a part of this Agreement: This Agreement shall extend to and bind the respective heirs, personal representatives, successors and assigns of the parties to this Agreement. T tom; t1 mZ ly L to -h- d-F m-, ccansf-, soy rJa4m or This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Ir lord it.athar tr.en an a d 'r Any at ^=h°r piII axecutiag this AptPempra ^r, nphalL 06 shall not be deemed to have waived any rights under this Agreement unless such waiver is in writing and signed b?/ LvaTerWithout notice to V Landlord and without affecting the validity of this Consent, Lender may do or not do anything if deems appropriate cessary with respect to ?G the Loan, any obligors on the Loan, or anv including without limitation extending, renewing re fri!in , or accelaratirtg cal any of the Loan indebtedness. j t JAkIN NDMENTS. This Agreement, t . constitutes the entire understanding and agreement of the parties as he matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given' in writing and r bound by the tednd?e t. s unders Agreement unless su waver Is given in writing any right shall operate as a waive of such right or any other or constitute a waver o right otherwise to demand??t compliance that provision or any other provision of this Agreement. No prior waiver by nor any course of dealing belweervtt? . L shall constiwto a waiver of any of L right or of any 0f obligations as to any future transactions. -ef Whenever the consent of L rs required under this Agreemen , the granting of such onsent b many instance shalt not constitute continuing consent to subse uen instances where such consent required annd? in all cas s such co se ma .tst riled or withheld in the sole discretiont tender- lf? (? P ?j'DQ't,_tts 1SQ t / l SEl VERABILITY. it a court of competent jurisdiction ff s any provision of this Agreement to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the oflending provision illegal, invalid, or unenforceable as to any other circumstance. It feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Agreement. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms LAN'DLORD'S CONSENT TO ASSIGNMENT j 2 LANDLORD'S CONSENT TO ASSIGNMENT Page (Continued) Loan No: 19593450-04 context may require. words and terms not otherwise plural, and the plural shag include the singular, e ,f the mmercial Code: used in the singular shag include the s attributed to such terms in the Uniform Coas this Landlord's Consent to Assignment may be defined in this Agreement shall have the meaning , ?nt "Agreement' means withlB exhiibits and t $Chedule rs aft had to this Landbrd's Consent to 1s4nms from Agreement. The word to time, together Q'V' 1`?'hiD ?11YV J\ nets and co-makers signing the Note and all their amended or modified from time time Borrower. time. The word "Borrower" means McGrath's Grille, ?nc and includes an co-5ig B to successors and assigns. h LLC D other holder )I , an yd "Landlord" means PR Capital CityL?mited Partnership clo pRE1T Services, , and is used for eonvaNe^Ce purposes 1 a lee owner, lessor, sutslessor or lienholder, or that of any 100 3-i3C interest of Lende?• n t ttJJtt Landlord. The word be that c ? ?1 premises may only. Landlord's interest in the may be, or may become prior to the between interest in the Premises which may ba 2006, Landlord and ?ojrower.. lfJs ?Q Laws. The word "Lease" means that certain lease of the Premises. dated August 22, Lender. The word "Lande r' means COMMERCE BANKMARRISBURG N.A., its successors and assigns. 11 loans and financial accommodations from Lender to Borrower whether now or hereafter Loan. The word "Loan' moans any and a pp0.0p dated August 23, existing, and however evidenced. cGrath's Grille, Inc in the Principal amount of s60o, the note 3, together with all renewals of, extensions of, modifications of, refinancings of, consolidations ot, and substitutions or Note. The word "Nora" means the Note executed by M 2006, Commonwealth of Pennsylvania, commonly known credit agreement. property located in Cumberland County, 55 pramises. The word Mall Dr ve Store B00, Camp Hill, PA 17011. as 3506 Capital City B CONSENT TO ASSIGNMENT, AVING READ ALL THE PROVISIONS OF THIS LANDLORD'S ACKNOWLEDGE H n Y00- ? AW? WRAP `rye ? } , AND BORROWER AND LANDLORD AGREE 70 175 TERMS. THIS AGREEMENT iS DATED AUGUST 23, 2p06. CONSTITUTE AND NAVE THE. t/L CL 1 v ? ?THIS UNDER SEAL AND IT IS INTENDED THAT THIS A13R EEiM1F-NT IS AND SHALL EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: MCGRATH'S GRILLE, INC ISea!) omas J. resident of McGrath's Grille, LENDER: LANDLORD: COMMERCE 13ANKiHARRIS8tfR0 N.A. PR CAPITAL CITY LIMITED PARTNERSHIP CIO PREIT - SERVICES, LL X Iseall A horized Ofiker By: Capital City Uth A mit ad Part" rshi cfo PRE T aServices, om ership LLC LLC wrn.wrnr. n,aorn rnlt ro 1f0;20N w?,;,, ?w.,w _raeav11MM1.17? '. V1e1 F" \•'"'w W 31110 OD1 EvY Mr,nM,ivrs.l M4,+"• Loan No. 19593450-04 RIDER nt Landlord's Consent to Assignment 80© This Rider is incorporated into, and made a-part of, the and regarding "Consent') dated as of August 23, 2006 by and among the undersigned Any conflict between in the Capital City Mall, 3506 Capital City Mall Drive, Camp this Rider and the Consent shall be governed by this Rider. 1, Lender shall notify Landlord in writing promptly upon the full. performance (as such term - is used in paragraph "Borrower's Assignment of Lease") under the Loan. Lender hereby agrees to execute promptly rout not later than 30 days after Landlord's written because such reasonable the full document as Landlord may require to confirm that the assignment has a have ended. performance under the Loan, ' or for any other reason that the assignment may Lender shall notify Landlord in writing promptly of any default of Borrower under the Loan. . 2, For purposes of paragraph "Borrower's Assignment of Lease" the term "material extends the Term of the Lease; (b) amendment" means an amendment of the Lease that (a) en it shadays after Len rd ihas beeg increases the Rent; or (e) terminates the Lease. Within fifte hat notify Landl writin notified of a requested material amendment, Lender agrees the "Consent Notice") whether or not Lender approves the material amendment. Further, ( that its failure to deliver the Consent Notice within said fifteen (15) days will be Lender agrees deemed to be Lender's irrevocable approval of the requested material amendment. eof the Lease by Lender (as such right is afforded Lender pursuant to Any reassignment o Paragraph "Consent of Landlord") shall be under and subject to provisions Landlord's consent to5the the Lease. Without limitation, the reassignment shall be subject ent of the Lease by the uired assi same degree and extent as Landlorde? consent effecgt ve unles and ugntil Lender has effectuated Tenant. No reassignment by Lend the, assumption of all obligations, duties and liabilities under the Lease by such assignee and any vision Without li pro presented Landlord with reasonable. docum ofathe Leaste shall relieve enantlunder the Lease for of Article 15 of the Lease, no reassignment any obligation, duty, or liability under the Lease. Lender and Borrower hereby acknowledge and agree that ee der- r assigga ontin the shall in no way limit Landlord's rights and remedies under the LeaS event of a default that is not cured within the applicable cure 6 o f dhe LLender's ease, right to r as of the lease shall not limit Landlord's rights set forth in Article 1 including, but limited to, the right to Confess Judgment. 4 The parties acknowledge that Tenant's rights in and to the liquor licNotwi tandide the Section -23.28 of the Lease, are not assigned by this Agreement to Lender. th eelnent, then foregoing, in the event Lender reassigns. the Lease in accordance the ??f o? ? eL q r Licenseto Landlord agrees to cooperate (at no cost to Landlord) Lender's assignee, subject to the provisions of the Lease, including, without limitation, Section 23.28 thereof. H,\WPWI,G'th'-Cafe-C"Uin'\C""t"I Aa"gnm-a of L a-\M.Grath's Capital C ty CollateialAsmtRider -Final -Ln04,dx Loan No. 19593450-04 Lender and no . that this Agreement does not expand or 7 Lender and Borrower acknowledge der' and agree extend any right or privilege of Tenant un the has no ? it lirn? or amend any obligation Lease more ri t or interest than Tenant of Tenant under the Lease and, further, that Lender eement. Without limitation, possesses under the Lease, except as expressly provided in this Agr. a h "Lease Default", the "Cue Penoci shall mean 6. For purposes of paragr p a) If the default is of the natur e that Tenant de under the Lease is afforded r?tt notice period within which to cure the default, the Cure Period for such de the default is of the nature that Tenant under the Lease is afforded 10 or fewer b} If days to cure, the cure Period is 15 days after written notice. r more under the Lease is c If the default is of the nature that Tenant to Te ant after written notice Plus five more days to cure, the Cure period is the. same as is afford additional days. the Cure Period as provided in this Article 5 is solely for the benefit of By way of clarification, th t Borrower reason, A. If Lender enters the Premises or takes possession of the Premises for any 5. A to have assumed all obligations as tenant under frthe Lease om and Lender will thereupon be deemed for the period arising the and (except for the obligation to operate a business in the Premises) all rent accruing without limitation, the obligation to pay after such time (including, and ending upon the possession of the Premises and all obligations thereafter under the Lease) assumed ' by Lender's permitted assignee unless Lender's under the Lease having been ended earlier in a?ordance with Sections 4B BhaeiiLease, Zbelow. before or obligations have en rent or perform any obligation under limitation, any failure to pay en ossession of the Premises,. shall be a default of u d ??Leaserovided in after Lender has taken P is and rem? months righ the Lease and shall entitle Landlord to s? on allf the Premises shall bel upon lLend e(6u curing any B. Lender agrees that its po ossession is conditioned (the "Permitted Possession Period") and such p der the Lease (excepting only the obligation to operate a business in the outstanding defaults un rovided in Section 4A on or before the If Lender has not reassigned the Lease as p Premises). a as of the expiration of the Permitted exPiration of the Permitted Possessio ePeriod, tthen ase shall automatically be, and he?baare, possession Period all of Lender's ether need of any further documentation; and (b reassigned to Borrower, rovided Lender has not held over in obligations under the Lease shall cease to accrue (p days rior notice to possession of the Premises). tat any time, upon thirty (30) p rior to C Lender shall have the ngh to eve up possession of the Premises P Borrower and Landlord (the "surrender Notice"), g day after Landlord's the expiration of the Permitted Possession Peae ds interests OetLe shall automatically be, receipt of the Surrender Notice' (a) all of Len without the need of any further documentation; and and hereby are, reassigned to Borrower, (provided Lender has not held over in ...Lender's obligations under the Lease shall cease to accrue are lim possession of the Premises). that Bank's obligations under the Lease and and agrees D. Notwithstanding the parties hereby accordance with. the Provisions of this Section 4, herein shall be deemed to limit or amend Borrower's obligations under the Lease. nothing „ the following: of Final -LnOkdoa -CapitalCity-CollateralP+sTntRider ' H:\WP\Mcornth'sCafe CollinslCogatatal Rssignm°?t LeaseW,GMth's Loan No. 19593450-04 in the event of a default by Tenant or, as applicable, Lender as assignee of the Lease, Landlord retains all rights and remedies as set forth in the Lease. Lse, as assignee of the 8. Confession of Jud "went -Possession. L under the Leases beyond the applicable covenants and agrees at ' ere s an Event o expired then and in addition to the rights and period or the Term is terminated or exp, , remedies set forth in the of the Premises to beaenter ied a tains limitation, Lender, cause asmTe ant, ion aejnd, forectment for those purp possess oses, Lender hereby tghrants the fo opwoing warrant thonotarne clerk Lender (as assignee) hereby u of ocal record and/or Landlormd as well nas someone actiting for - of court, attorney of any co u of the Premises to o p Landlord) in an and all actions commenced for recovery appear for Lender (as assignee) and confess or otherwise enter judgment in eject rmeec t foor and I all possession of the Premises agains der (as assigngne and the epupon of ers writ iiisession may indirectly by, through or under Lends( prior notice, writ or proceeding whatsoever may issue and be otherwise be served, with required out by any appicable law; (u') if, for any reason after the except f as forthwith foregoing action or actions shall have been commenced, it shall be determined that possession of the Premises should rremao in or m re further actions to Lender (as assign set Landlord shall have the right to e for forth to recover possession of the Premises including, without limitation, appearing Lender (as assignee) and confessing or otherwise ucb action or proceeding, ersinsconnection Premises as hereinbefore set fo Lon ect or dlord therewith, if a copy of this Agreement and/or the Lease is therein verified y and/or the someone acting for Landlord to be a true and correct copy of this Agreement virtue of Lease (and such copy shall be conclusivessa resu a the be true aand c Agreement and/or such verification), then it shall not be nece necessary nreemestand / Lease, any statute, rule of court of law, custom or practice to the contrary and Lender (as assignee) hereby releases to Landlord, anyone acting for regarding the attorneys who may appear or Lender (as assignee) all errors in procedure of the warrants of entry of judgment or judgments by confession or otherwise by vii attorney contained in this Lease, and all liability the efor. The right to ent y judgment in judgments by confession or otherwise by virtue Lease may this Lease and toenforce right, title and interest in this Lease in such a s a eers g sed n own ame assignee teo Landlord's any statute, rule of court or law, custom or practice to the contrary notwi standing. Landlord hereby acknowledges and agrees that Lender's foregoing confession of judgement is not a confession for rent or monetary damages. Tenant hereby acknowledges that the foregoing Confession the Landl?ord,tpufor rsuant to the Lease,. way limits or. impairs any obligations of Tenant, or rights of including, without limitation, Landlord's rights pursuant to Sections 16.02(b),(c) and (d) thereof of the Lease. ins or is 9. Any notice, demand, request, approvaln consent or other hat be deemed hick may b given required to be given under this Lease shall be to have been (a) when mailed by United States registered or certifiied mailreturn r cbei ??eistgeud postage prepaid and received or refused by the addressee, or th(bwhen sent addresses set forth in the overnight delivery, addressed to appropriate party a respective by notice to the Agreement and/or such other address or addresses as any party may designate others in accordance with this Section and received or b eby attorney fo dL ssee. lord Any notic by the Landlord may be given on its behalf by its Age by an 10. Lender understands and acknowledges that the Lease, and all interests therein, are, and H:\WP\McGratifsCafe-Collins\CollatemI Assignment of lxm\McGmtWs-CapitalCity-CollatetalAsmtRider -Final -LnO4.doe Loan No. 19593450-04 always shall 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 thereon, and all modifications, consolidations, renewals, replacements and extensions thereof. Such subordination shall be effective without the execution of any further instrument. Nonetheless, Lender (as assignee) agrees that, upon the request of Landlord, or any such lessor, mortgagee or trustee, Lender (as assignee) shall execute and deliver whatever reasonable instruments may be required for such purposes and to carry out the intent of this Article 9. 11. From time to time within twenty (20) days after request in writing therefor from Landlord, Lender (as assignee) 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 "Estoppel Certificate"), certifying as to such matters as may be reasonably requested by Landlord. Lender expressly agrees that Landlord may assign its interest in the Estoppel Certificate to its lender(s) at any time who may act in material reliance thereon. In witness whereof the undersigned have executed this Rider intending to be legally bound: DLORD: PREIT SERVICES, LLC, Agent for PR CAPITAL CITY LIMITED PARTNERSHIP BY: Name a Title: - LENDER Commerce Bank/Harrisburg, NA BY JJZ?? Name and BORROWERITENANT McGrath's Grille, Inc. Name and Title 454575vl *Fr(f---5; dew H:\WP\McGmth'sWe-Collins\CoUateral Assignment of Lease\McGrath's-Capitalcity-CollateMAsmtRider -Final AmKdoc exhlb?-? `{ NO AK- Capital City -McGrath's-010408 xis w Capital City - McGrath's Emerald Grille 4-Jan-08 Billed Open 7/1/07MINIMUM RENT $ 8,333.00 $ 5,570.66 8/1/07 CAM ESCROW $ 2,008.33 $ 2,008.33 8/1/07MINIMUM RENT $ 8,333.00 $ 8,333.00 8/1/07 REAL ESTATE TAXES $ 750.00 $ 750.00 8/1/07 Energy Management Fee $ 50.00 $ 50.00 8/29/07 Electric $ 1,880.72 $ 1,880.72 8/29/07 State Tax $ 112.84 $ 112.84 8/29/07 LP Gas $ 2,020.37 $ 2,020.37 8/29/07 State Tax $ 121.22 $ 121.22 9/1/07MINIMUM RENT $ 8,333.00 $ 8,333.00 9/1/07 REAL ESTATE TAXES $ 750.00 $ 750.00 9/1/07 Energy Management Fee $ 50.00 $ 50.00 9/1/07 CAM ESCROW $ 2,008.33 $ 2,008.33 10/1/07MINIMUM RENT $ 8,333.00 $ 8,333.00 10/1/07 REAL ESTATE TAXES $ 750.00 $ 750.00 10/1/07 Energy Management Fee $ 50.00 $ 50.00 10/1/07 CAM ESCROW $ 2,008.33 $ 2,008.33 10/1/07 Electric $ 1,908.92 $ 1,908.92 10/1 /07 State Tax $ 114.54 $ 114.54 10/1/07 LP Gas $ 2,203.85 $ 2,203.85 10/1 /07 State Tax $ 132.23 $ 132.23 10/15/07 Sewer $ 267.70 $ 267.70 10/24/07 Electric Penalty $ 46.47 $ 46.47 10/31/07 Electric $ 1,628.48 $ 1,628.48 10/31/07 State Tax $ 97.71 $ 97.71 10/31/07 LP Gas $ 1,190.65 $ 1,190.65 10/31/07 State Tax $ 71.44 $ 71.44 11/1/07CAM ESCROW $ 2,008.33 $ 2,008.33 11/1/07MINIMUM RENT $ 8,333.00 $ 8,333.00 11 /1 /07 REAL ESTATE TAXES $ 750.00 $ 750.00 11/1/07 Energy Management Fee $ 50.00 $ 50.00 11/29/07 Electric $ 1,476.24 $ 1,476.24 11/29/07 State Tax $ 88.57 $ 88.57 11/29/07LP Gas $ 994.41 $ 994.41 11 /29/07 State Tax $ 59.66 $ 59.66 12/1/07 CAM ESCROW $ 2,008.33 $ 2,008.33 12/1/07MINIMUM RENT $ 8,333.00 $ 8,333.00 12/1/07 REAL ESTATE TAXES $ 750.00 $ 750.00 12/1/07 Energy Management Fee $ 50.00 $ 50.00 12/31/07 Electric $ 1,414.01 $ 1,414.01 12/31/07 State Tax $ 84.84 $ 84.84 111/08CAM ESCROW $ 2,008.33 $ 2,008.33 1/1/08 Energy Management Fee $ 50.00 $ 50.00 1/1/08 REAL ESTATE TAXES $ 750.00 $ 750.00 1/1/08MINIMUM RENT $ 8,333.00 $ 8,333.00 4?AR _ _N F NOWA C Capital City_ cGrath's_010408.x s Page 2J i??r - -? $ 88,333.51 ?v ? ? O ' g o a C._ v J,i 71i 5-1 zj C, ?j IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff V. NICJO, INC. and McGRATH' S GRILLE, INC. d/b/a MCGRATH' S EMERALD GRILLE, Defendant. CIVIL DIVISION No. 08-904 CIVIL TERM PETITION TO STRIKE CONFESSED JUDGMENT FOR EJECTMENT AND REQUEST FOR PROMPT HEARING Defendants NICJO, INC. files this Petition to Strike Confessed Judgment for Ejectment and Request for Prompt Hearing pursuant to Rule 2963.3 of the Pennsylvania Rules of Civil Procedure, and avers as follows: Plaintiff, PR Capital City Limited Partnership ("Plaintiff') is a Pennsylvania limited partnership, with an address of c/o PREIT Services, LLC, 200 South Broad Street, Third Floor, Philadelphia, PA 19102. Plaintiff is the owner of the Capital City Mall in Camp Hill, Pennsylvania. 2. Defendant NICJO, Inc. ("NICJO" or "Petitioner") is a corporation doing business in Pennsylvania, with an address at 202 Locust Street, Harrisburg, Pennsylvania 17101. 3. Defendant McGrath's Grille, Inc. d/b/a McGrath's Emerald Grille ("McGrath's Grille") is a Pennsylvania corporation presently doing business at Store No. 800, Capital City Mall, Camp Hill, Pennsylvania. 4. On or about August 22, 2006, Plaintiff and NICJO entered into a Lease Agreement with respect to Room 800 in Capital City Mall in Camp Hill, Pennsylvania. 5. On August 22, 2006, NICJO assigned the Lease Agreement to McGrath's Grille. 6. On or about February 7, 2008, Plaintiff filed a Complaint in Confession of Judgment for Ejectment ("Complaint for Ejectment") against the Defendants in the Court of Common Pleas of Cumberland County, PA at No. 08-904 Civil Term. A copy of the Lease Agreement and the Assignment are attached to the Complaint in Ejectment as Exhibits 1 and 2. 7. On February 7, 2008, the Prothonotary of the Court of Common Pleas of Cumberland County notified the Defendants that a judgment in ejectment had been entered against them by confession in favor of the Plaintiff for possession of Room 800 in Capital City Mall ("Confessed Judgment in Ejectment") 8. On February 12, 2008, Plaintiffs counsel caused a Notice Under Rule 2973.2 of Judgment and Execution/Notice of Defendants' Rights ("Rule 2973.2 Notice") to be mailed to the Defendants. True and correct copies of the Rule 2973.2 Notices are attached as Exhibits "A" and "B". 9. Despite the fact that the Confessed Judgment in Ejectment was entered in the Court of Common Pleas of Cumberland County, the captions on the Rule 2973.2 Notices state `IN THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY, PENNSYLVANIA" (emphasis added). 10. Petitioner certifies that it did not voluntarily, intelligently and knowingly give up its right to notice and hearing before the entry of the Confessed Judgment for Ejectment. 11. Petitioner petitions the Court to strike the Confessed Judgment for Ejectment on this ground and requests a prompt hearing on this issue. 12. Moreover, the wrong county that appears on the captions of the Rule 2973.2 Notices is a "fatal defect" or irregularity meriting the striking of the Confessed Judgment in Ejectment. WHEREFORE, NICJO, INC. petitions this Honorable Court to strike the Confessed Judgment in Ejectment and requests a prompt hearing on the issues presented in this Petition to Strike. Respectfully submitt am AlSh"vo q. Pa. Bar ID # X19V1 ECKERT SEAMANS CHERIN & MELLOTT, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6000 (717) 237-6019 facsimile and Karen Lee Turner, Esq. Pa. Bar ID # 27898 Ronald S. Gellert, Esq. Pa. Bar ID # 80783 ECKERT SEAMANS CHERIN & MELLOTT, LLC Two Liberty Place 50 South 16t` Street, 22nd Floor Philadelphia, PA 19102 (215) 851-8431 (215) 851-8383 facsimile Dated: March& , 2008 Attorneys for NICJO, INC., Petitioner ud/obtzoo8 1b:11 FAX 12158518383 ECKERT-SEAMANS IN THE COURT OF COMMON PLEAS OF CU WBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITE LIMITED PARTNERSHIP, ) Plaintiff ) ) V. ) NICJO, INC. and McGRATH'S GRILLE, INC. d/b/a } McGRATH'S EME LALD GRILLE, ) Defe:ldant. ) VERIFICATION CIVIL DIVISION No. 08-904 CIVIL TERM I veri Fy that the statements made in this Petition to Strike Confessed Judgment in Ejectment and Requ 3st for Prompt Hearing are true and correct, I understand that false statements herein ar.? made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authc dties. Notice of hearing requwtcd in the Petition to Strike should be given to my attorneys as follows Karen L. Turner, Esq. Ronald S. Gellert, Esq. ECKERT SHAMANS CSERIN & MELLOTT, LLC Two Liberty Place 50 South 16" Street, 2e Floor Philadelphia, PA 19102 Dated: March 2 008 /0 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Petition to Strike Confessed Judgment for Ejectment and Request for Prompt Hearing was served this?? day of March, 2008, by U.S. First Class Mail, postage prepaid upon the following counsel of record: Darlene M. Nowak, Esq. Marcus & Shapira, LLP One Oxford Centre, 351h Floor 301 Grant Street Pittsburgh, PA 15219 Attorney for Petitioner M0640110 ?_ ?? ` ? `` ? T ` ''?? O ? ??t?? ;: g-.' 4:.. r__ "U ? ^Y? C.) r ?': a' . f A IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff V. CIVIL DIVISION NICJO, INC. and McGRATH'S GRILLE, No. 08-904 CIVIL TERM INC. d/b/a McGRATH'S EMERALD : GRILLE, ; Defendant. MAR 112008 RULE TO SHOW CAUSE ND NOW, this day of 2008, upon consideration of Defendants' Petition to Strike Confessed Judgment for Ejectment and Request for Prompt Hearing, it is hereby ORDERED that the Plaintiff SHOW CAUSE before this Court why the above-captioned confessed judgment should not be stricken, on the a Otkday o , 2008, at :30 o'clock I.m., or as soon thereafter as the parties may be heard, in Courtroom Z , Cumberland County Courthouse, Carlisle, Pennsylvania. cgn9?le?ec?ratithin 90 davs?f fie' '- r'' ^ ?e?, proceedings, including execution on or enforcement of the above-captioned confessed judgment, shall be and hereby are STAYED until further Order of this Court; IT IS FURTHER ORDERED that, except as expressed in this Order, all other IT IS FURTHER ORDERED that Defendants shall promptly cause a copy of this Rule to be served upon Plaintiff's counsel. v6e(I B J. c?l ?.. i C' -? u..a n- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, ) Plaintiff ) CIVIL DIVISION V. ) No. 08-904 CIVIL TERM NICJO, INC. and McGRATH' S GRILLE, INC. d/b/a ) McGRATH' S EMERALD GRILLE, ) Defendant. ) AMENDED PETITION TO STRIKE CONFESSED JUDGMENT FOR EJECTMENT AND REQUEST FOR PROMPT HEARING Defendants NICJO, INC. files this Amended Petition to Strike Confessed Judgment for Ejectment and Request for Prompt Hearing pursuant to Rule 2963.3 of the Pennsylvania Rules of Civil Procedure, and avers as follows: Defendant NICJO, Inc. (hereinafter "NICJO") filed a Petition to Strike Confessed Judgment for Ejectment and Request for Prompt Hearing with this Honorable Court on March 10, 2008. 2. NICJO incorporates by reference all averments of the Petition to Strike. 3. NICJO inadvertently omitted Exhibits "A" and "B", copies of the Rule 2973.2 Notices as referenced in Paragraph 8 of the original Petition. 4. NICJO has attached true and correct copies of Exhibits "A" and "B" to this Amended Petition to Strike Confessed Judgment for Ejectment and Request for Prompt Hearing. 5. By the filing of this Amended Petition to Strike Confessed Judgment for Ejectment and Request for Prompt Hearing, NICJO respectfully asks that these exhibits be incorporated into the record. WHEREFORE, NICJO, INC. petitions this Honorable Court to strike the Confessed Judgment for Ejectment. Respectfully submitted, t: D A am hienvold, Esq. P . Bar ID #81941 ECKERT SEAMANS CHERIN & MELLOTT, LLC 213 Market Street, Eighth Floor Harrisburg, PA 17101-2132 (717) 237-6000 (717) 237-6019 facsimile and Karen Lee Turner, Esq. Pa. Bar ID # 27898 Ronald S. Gellert, Esq. Pa. Bar ID # 80783 ECKERT SEAMANS CHERIN & MELLOTT, LLC Two Liberty Place 50 South 16th Street, 22n Floor Philadelphia, PA 19102 (215) 851-8431 (215) 851-8383 facsimile Dated: March 19, 2008 Attorneys for NICJO, INC., Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff V. NICJO, INC. and McGRATH'S GRILLE, INC. d/b/a McGRATH' S EMERALD GRILLE, Defendant. VERIFICATION CIVIL DIVISION No. 08-904 CIVIL TERM I verify that the statements made in this Amended Petition to Strike Confessed Judgment for Ejectment and Request for Prompt Hearing are true and correct I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. Notice of hearing requested in the Petition to Strike should be given to my attorneys as follows: Karen L. Turner, Esq. Ronald S. Gellert, Esq. ECKERT SEAMANS CHERIN & MELLOTT, LLC Two Liberty Place 50 South 16'' Street, 22"d Floor Philadelphia, PA 19102 Dated: March A, 2008 NICJO INC., Petitione % By: Title: Present z'd L6*16-262-GIG qnd s,gieJJoW dab:To go 6T JeW CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Amended Petition to Strike Confessed Judgment for Ejectment and Request for Prompt Hearing was served this 19th day of March, 2008, by U.S. First Class Mail, postage prepaid upon the following counsel of record: Darlene M. Nowak, Esq. Marcus & Shapira, LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 M0640110 IN THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, ) CIVIL DIVISION Plaintiff, ) Case No. 08-904 V. ) NICJO, INC. and McGRATH'S GRILLE, INC ) d/b/a McGRATH'S EMERALD GRILLE ) Defendant. ) NOTICE UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION NOTICE OF DEFENDANTS' RIGHTS TO: NICJO, INC. and McGRATH'S GRILLE, INC. d/b/a McGRATH'S EMERALD GRILLE A judgment for possession of real property has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may remove you from the property at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your being removed from the property. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle PA 17013 (717) 249- 66 February 12, 2008 Darlene M. Nowak Pa. I.D. No. 37093 MARCUS & SHAPIRA, LLP One Oxford Centre, 35'k Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 A B IN THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, ) CIVIL DIVISION } Plaintiff, ) Case No. 08-921 V. ) NICJO, INC. and McGRATH'S GRILLE, INC ) d/b/a McGRATH'S EMERALD GRILLE ) Defendant. ) NOTICE UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION NOTICE OF DEFENDANTS' RIGHTS TO: NICJO, INC. and McGRATH'S GRILLE, INC. d/b/a McGRATH'S EMERALD GRILLE A judgment for money in the amount of $92,750.16 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may execute against your property to satisfy this judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your being removed from the property. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle PA 17013 (717) 249- 166 H February 12, 2008 _ 0'?I ?' Darlene M. Nowak Pa. I.D. No. 37093 MARCUS & SHAPIRA, LLP One Oxford Centre, 351° Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 ro Gr i -A 'C PR CAPITAL CITY LIMITED PARTNERSHIP, PLAINTIFF V. NICJO, INC. AND McGRATH'S GRILLE, INC., d/b/a McGRATH'S EMERALD GRILLE, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 08-0904 CIVIL TERM ORDER OF COURT AND NOW, this 26th day of March, 2008, the petition, as amended, of Nicjo, Inc., to strike a confessed judgment, IS DENIED.' tAtephen S. Zubrow, Esquire 1 Oxford Centre 301 Grant Street 35th Floor Pittsburgh, PA 15219 For Plaintiff Donald S. Gellert, Esquire Two Liberty Place 50 South 16th Street, 22nd Floor Philadelphia, PA 19102 For Nicjo, Inc. sal A Edgar B. Bayley, J. ' The petition to strike was also filed on behalf of McGrath's Grille, Inc., d/b/a McGrath's Emerald Grille. No action is taken on that petition because that defendant has filed a petition for bankruptcy. By the P6urt, :- -,c?;. N r-ri