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08-0921
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. bS_ 9a1 0'i V i I Tex-M CONFESSION OF JUDGMENT FOR MONEY Pursuant to the authority contained in the Warrant of Attorney, the original or a copy of which is attached to the Complaint filed in this action, I, Darlene M. Nowak, Esq., appear for the Defendant and confess judgment in favor of Plaintiff and against Defendant for money as follows: Amount due through 1/4/08 (Ex. 3) Attorneys' fees for enforcement and collection (5%) provided under § 16.02 of the Lease TOTAL Dated: February 11, 2008 $88,333.51 $ 4,416.65 $92,750.16 C"a ey fo efendant !11 Q_ZO. "o10 p. Capital City Mall • McGrath's Emerald Grille The undersigned hereby states subject to the penalties of 18 Pa. C.S. § 4904 regarding unsworn falsification to authorities as follows: I am a duly authorized representative of the plaintiff identified in the attached Complaint in Confession of Judgment and that averments of to the contained in such Complaint are true and correct best of my knowledge, information and belief. Dated: ct/rI ?? 2008 7 By: ?. Debra Lambert Vice President - Legal PREIT SERVICES, LLC Agent for PR CAPITAL CITY LIMITED PARTNERSHIP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED j PARTNERSHIP, ) Plaintiff, ) V. ) NICJO, INC. and McGRATH'S GRILLE, ) INC. d/b/a McGRATH' S EMERALD j GRILLE, ) Defendant. ) CIVIL DIVISION No. COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow Pa. I.D. No. 43523 Darlene M. Nowak PA ID No. 37093 MARCUS & SHAPIRA LLP Firm No. 145 One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 r` * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, i I l CIVIL DIVISION Plaintiff, V. NICJO, INC. and McGRATH'S GRILLE, INC. d/b/a McGRATH' S EMERALD GRILLE, Defendant. No. COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY 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 and August 22, 2006 (the "Lease"). NICJO, Inc. is the Tenant under the Lease, 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. by Assignment dated August 22, 2006. A true copy of said Assignment is attached as Exhibit 2 and is incorporated by reference. A confession for money judgment against McGrath's Grille, Inc. is authorized by Section 3 of the Assignment. Notwithstanding the Assignment, NICJO, Inc. agreed to remain liable on the Lease and responsible for all breaches of its covenants. Section 2. The tenant's rights in the Lease was also 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 against a natural person in connection with a consumer credit transaction. The underlying Lease of real property at Capital City Mall, Camp Hill, Pennsylvania, was made as a commercial transaction. 7. Judgment has not been entered on the Lease in this or any other jurisdiction. 1' 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. Confession of Judgment for Monti 9. Plaintiff avers that Section 16.02(b) of the Lease authorizes the entry of Judgment for money after an Event of Default thereon. An Event of Default has occurred under the Lease in that Defendants have failed to make payment in full of rent and other charges which were due for the months of 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 itemization of the amount presently due under the Lease and without waiver of future damages is as follows: Amount due through 1/4/08 (Ex. 4) $88,333.51 $ 4,416.65 Attorneys' fees for enforcement and collection (5%) provided under § 16.02 of the Lease Filing Fee TOTAL $ 27.50 $92,777.66 WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the Lease, demands a money judgment against Defendants jointly and severally in the total sum of $92,769.66 plus costs, attorneys' fees and interest at the Lease rate from and after the date of the Entry of Judgment as provided in the Lease, and brings said Lease to Court to recover said sum. • s Dated: February-, 2008 Respectfully submitted, eph n . Zubrow arlene M. Nowak MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership Exk,b,t 1 i1 LEASE AGREEMENT BY AND BETWEEN PR CAPITAL CITY LIMITED PARTNERSHIP, as Landlord and NICJO, Inc. as Tenant TRADE NAME: MCGRATH'S EMERALD GRILLE MaGratn'sCafe-CapitalC ityMall-FinaWinalF inal June 7, 2006 \ Collins/JCR FUNDAMENTAL LEASE PROVISIONS This Lease is executed and made as of 49U-1 01'9 . 2006, by and between PR CAPITAL CITY LIMITED PARTNERSHIP, a Pennsylvania limited partnership (herein called "Landlord") and NICJO, Inc. (herein called "Tenant"), Landlord and Tenant having the following notice addresses: Landlord: PR CAPITAL CITY LIMITED PARTNERSHIP c/o PREIT Services, LLC 200 South Broad Street The Bellevue, Third Floor Philadelphia, PA 19102 Attn: General Counsel Copy to: PR CAPITAL CITY LIMITED PARTNERSHIP Management office 3506 Capital City Mall Drive Camp Hill, PA 17011 Attn: General Manager Tenant: NICJO, Inc. 202 Locust Street Harrisburg, PA 17101 Copy to: Billing Address: Certain Fundamental Lease Provisions are presented in this Section and represent the agreement of the parties hereto, subject to definition and elaboration in the respective referenced Sections and elsewhere in this Lease: (a) Tenant's Trade Name: McGrath's Emerald Grille (See Sec. 7.01) (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) (c) Tenant Store Number: 800 (See Exh. A) (d) GLA of Premises: 5,000 square feet (See Sec. 1.04) (e) Design Drawings Submission Date: June 15, 2006 (See Sec. 2.03) (f) 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) & "Construction Period": 120 days (See Sec. 2.03) (g) Minimum Rent: Time Period Annual Amount Monthly Amount Rent Commencement Date through the 60th month $100,000.00 $8,333.00 From the 61 st month through the end of the Term $110,000.00 $9,166.67 (See Sec. 4.03) (h) Percentage Rent: Time Period Break Point The "Percentage" Rent Commencement Date through the 601' month $2,000,000.00 Four Percent (4%) From the 61" month through the end of the Term $2,200,000.00 Four Percent (4%) (See Sec. 4.04) McGrath's Cafe CapitalC'dyWi-FinatFinalFinal June 7, 2006 \ Collins/JCR 2 0) Required Opening Date: The One Hundred Twentieth (120 ") day following the Construction Commencement Sec. 4.02) Date. (See Sec. 2.02) 0) Security Deposit: N/A FUNDAMENTAL LEASE PROVISIONS (CONT'D) (k) Marketing Service Charge: N/A per square foot of the GLA of the Premises per Year ot of the GLA of the Premises per Year f (See Sec. 9.01) (See Sec. 9.02) o Minimum Advertising Charge: NIA per square (1) 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) Special Assessment (m) "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 themed restaurant selling the items listed on the menu set forth in Exhibit D attached, provided, however, that any material change to such menu items must be pre-ap proved in writing by Landlord. (See Sec. 7.01) (o) (i) Provided that Tenant is not in default hereunder at the time of (each) exercise, Tenant shall have and is hereby granted two (2) separate options to extend the Term of this Lease upon the terms, covenants, conditions, and provisions set forth herein, except as set forth in (c) and (d) below, for two (2) periods of five (5) years each; provided that at the time an option to renew is exercised, the Term of this Lease shall be in effect. (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 no event shall Tenant have any right or option to extend or renew the Term of this Lease beyond ten (10) years from the Expiration Date of the Term set forth herein. In the event Tenant fails 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: Time Period Annual Amount From the One Hundred $121,000.00 Twenty First (1215) month through the One Hundred Eightieth (18&) month of the Term From the One Hundred Eighty First $133,100.00 (181 e) month through the Two Hundred Fortieth (240'h) month of the Term During the option terms, Tenant shall pay Percentage Rent as follows: Time Period Break Point From the One Hundred Twenty First $2,420,000.00 (121St) month through the One Hundred Eightieth (1800 month of the Term From the One Hundred Eighty First $2,662,000.00 (1810) month through the Two Hundred Fortieth (240"') month of the Term (p) Outside Seating Area: Monthly Amount $10,083.33 $11,091.67 The "Percentage Four Percent (4%) Four Percent (4%) 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 Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 1 Collins/JCR Landlord shall have no construction obligation with respect to the Outside Seating Area and Tenant is leasing the same in its "as-is" condition. Tenant's lease of the Outside Seating Area is on the following conditions, each of which must be met before Tenant can open for business to the public in Outside Seating Area: (i) Tenant shall obtain all required governmental and other approvals and permits to operate its business in the Outside Seating Area; (ii) Landlord shall obtain all approvals from other tenants at the Shopping Center with a right to disapprove or restrict the operation of its business in the Outside Seating Area (iii) Tenant shall submit to Landlord, and Landlord shall approve in Landlord's sole discretion, all Tenant Work in the Outside Seating Area, including all Tenant's furniture, fixtures and equipment placed in the Outside Seating Area. Tenant shall be responsible for all utilities supplied to the Outside Seating Area and for the removal of all trash generated from the Outside Seating Area, at Tenant's sole cost and expense, and otherwise in accordance with the terms of this Lease. Tenant shall also be responsible for maintaining the Outside Seating Area in a clean 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 in the Outside Seating Area within 180 days from the date of this Lease, provided that if such opening is delayed for any reason beyond the reasonable control of Tenant, including the ability to obtain the approvals required hereunder, the opening for the Outside Seating Area will be delayed on a day for day basis for each day of such delay. The parties hereto acknowledge that, except for the foregoing obligations, the Outside Seating Area shall be deemed a part of the Premises and accordingly, all references in this Lease to the Premises shall mean and refer to and be deemed to include the Outside Seating Area. McGrath's Cafa-CapitalCityMall-FinalFinaiFinal June 7, 2006 1 Collins/JCR LEASE AGREEMENT ARTICLE 1: INTRODUCTORY PROVISIONS Section col: REFERENCES AND CONFLICTS. References appearing in the Fundamental Lease Provisions are to designate some of the other places in this Lease where additional provisions applicable to the particular Fundamental Lease Provisions appear. Each reference in this Lease to any of the Fundamental Lease Provisions shalt be construed to incorporate all of the terms provided for under such provisions, and such provision shall be read in conjunction with all other provisions of this Lease applicable thereto. If there is any conflict between any of the Fundamental Lease Provisions and any other provisions of this Lease, the latter shall control. The listing on the Fundamental Lease Provisions of monetary charges payable by Tenant shall not be construed to be an exhaustive list of all charges or the amount thereof payable by Tenant under this Lease. Section 1.02: GENERAL DEFINITIONS. (a) The term "Shopping Center" means the land shown on Exhibit "A" attached hereto and by this reference incorporated herein, as the same may hereafter be reduced, expanded or otherwise altered from time to time. (b) The term "Mall Premises" means the Shopping Center excluding however the Majors' Premises and the term "Mall Premises" includes the same as reduced, expanded or otherwise altered from time to time. (c) The term "Landlord's Building" means the buildings, structures and other improvements shown in general on Exhibit "A" and includes the "Enclosed Mall" (hereinafter defined), but excludes the Majors' Premises (hereinafter defined). Landlord's Building is part of the Mall Premises. The term "Landlord's Building" includes the same as reduced, expanded or otherwise altered from time to time. (d) The term "Majors' Premises" (or "Majors Premises") means the premises shown on Exhibit "A", page 1 by such term, or by the word "Major" or name of the prospective or actual principal occupant thereof (the "Majors" or a "Major"), and the term "Majors' Premises" (or "Majors Premises") includes the same as reduced, expanded or otherwise altered from time to time. The term "Major" (or "Majors") includes any replacement for or other substitute of the primary occupant of a Majors Premises as well as, in the case of an expansion of the Shopping Center, the primary occupant of the premises equal to or exceeding, in terms of GLA, the GLA of any one (1) of the Majors' Premises shown on Exhibit "A" (even though those premises may not be originally shown thereon). References in this Lease to a Major or Majors shall include any such replacement, substitute or additional Major and its premises are included within the terms "Majors' Premises" and "Major's Premises". (e) The term "Common Areas" means all areas, facilities and improvements operated or provided at or in connection with the Shopping Center from time to time for the non-exclusive common use of Landlord, the tenants of the Mall Premises and the Majors, and shall include but not be limited to the "Enclosed Mail" (hereinafter defined), parking areas, roadways, ramps, traffic controls, truck ways, loading and unloading docks, delivery areas, sidewalks, stairways, escalators and elevators (if any), service corridors, exit corridors, seating areas, buffer areas, screening facilities, merchandise pickup stations (excluding those of Majors, if any), public rest rooms and comfort stations, retaining walls, landscaped areas, open space areas, utility systems, sanitary and other waste handling systems, holding tanks, force mains, fire detection and/or suppression systems, life safety systems, security systems, community rooms, drainage systems, and lighting systems. The term "Common Areas" includes the same as reduced, expanded or otherwise altered from time to time. (f) The term "Enclosed Mall" means the enclosed climate controlled pedestrian malt located in Landlord's Building, and the term "Enclosed Mall" includes the same as reduced, expanded or otherwise altered from time to time. (g) The term "Premises" means the space demised by this Lease and situated in Landlord's Building which space is in the approximate location marked on Exhibit "A", however, the Premises is limited vertically to the ceiling height above the structural floor set forth in Landlord's "Store Design Criteria" (defined in Section 2.03(b) hereof). In the event the Premises is a corner location, the Premises shall exclude any rights with respect to the exterior side wall of the Premises. (h) The term "Fast Food Cluster" means the area or areas now or in the future specifically designated by Landlord for small restaurant or other food service operations situated in Landlord's Building or elsewhere in the Mall Premises, including the individual premises and any seating areas located therein and the maintenance and housekeeping areas primarily serving the Fast Food Cluster. The term "Fast Food. Cluster" Includes the same as reduced, expanded or otherwise altered from time to time. (i) The term "GLA" means with respect to the Premises and all other leasable areas, Landlord's best estimate of the number of square feet of area on all floors in Landlord's Building for the exclusive use by the tenants or other occupants thereof and their customers, clients or other invitees including without limitation mezzanines and balconies if used for the sale of goods and/or services (but excluding all other areas and space defined herein as part of Common Areas). GLA of the Premises shall be measured from the exterior face of exterior walls and the exterior face of service corridor walls, the line along the front of the Premises where the Premises abuts the Enclosed Mall as shown on Exhibit A (which line is commonly known as the "Lease Line"), or the Lease Line of any pop-outs referred to in Section 1.04, as the case may be, and the centerline 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 of the GLA of Landlord's Building, at a given time for a given period of time, as such GLA may be revised because of reductions, expansions or other alterations of Landlord's Building or as such GLA'may be adjusted pursuant to provisions in the leases of other tenants or occupants. The GLA of the Premises and of Landlord's Building shall be utilized to calculate the GLA Fraction (defined in Section 1.020) and to make any other calculations required to determine the charges to Tenant. McGrath's Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 1 Collins/JCR (j) The term "GLA Fraction" means a fraction, the numerator of which shall be the GLA of the Premises and the denominator of which shall be the occupied GLA of Landlord's Building, subject, however, to the provisions of Section 4.08. (k) The term "Junior Major(s) Premises" means either of the following, (not herein identified as or otherwise 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 Mall or (ii) any premises which contains in excess of 15,000 square feet of GLA in the Shopping Center. (1) The term "Lease" as used in this document (the "Lease") shall mean the Fundamental Lease Provisions, the Lease Agreement, the Exhibits attached hereto and Addendum, if any. Section 1.03: EXHIBITS. The following plans and special provisions are attached hereto as Exhibits, are incorporated herein and hereby made a part of this Lease. EXHIBIT A Plan of the Shopping Center as presently constituted which plan also shows the approximate location of 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. Tenant may, subject to receipt of all required governmental approvals and Landlord's prior written approval, "pop- out" all or a portion of the storefront. Should Tenant install a pop-out storefront, the GLA of the Premises shall be increased to include the square foot area of the pop-out(s). The Minimum Rent and the Break Point shall be accordingly increased, to include the area of such pop-out(s). Section 1.05: CHANGES TO SHOPPING CENTER. As between Landlord and Tenant, Landlord may at any time and from time to time eliminate land from, or add to or substitute for land of, the Shopping Center or any part thereof, or eliminate, add or substitute any improvements, or change, enlarge or consent to a change in the shape, size, location, number, height, or extent of the improvements to the Shopping Center or any part thereof, including, without limitation adding additional levels to any existing buildings therein. Seaton 1.06: CROSS EASEMENT AGREEMENT. Tenant understands and agrees with Landlord that, notwithstanding anything to the contrary contained in this Lease, the Shopping Center including, without limitation, the Common Areas and the Premises are and shalt be subject, subordinate and otherwise junior to any cross easement agreement (as they maybe or may have been created, amended, supplemented or otherwise modified from time to time) between Landlord and each occupant of the Majors or Junior Majors who are parties thereto (such cross easement agreement being herein collectively called the "REA"). ARTICLE 2: PREMISES AND TENANTS WORK Section 2.01: LEASE OF PREMISES. Landlord, in consideration of the "Rent" (defined in Section 4.01) to be paid and the covenants to be performed by Tenant, does hereby demise and lease unto Tenant, and Tenant hereby leases and takes from Landlord, for the Term, at the rental, and upon the covenants, conditions and other terms herein set forth, the commercial space referred to herein as the Premises situated or to be situated in Landlord's Building, as the case may be. Section 2.02: SECURITY DEPOSIT. Deleted. Section 2.03: PREPARATION OF PLANS AND TENANT'S WORK. (a) Tenant has had the opportunity to examine the Premises and hereby agrees to accept same in the "as is" condition in which the Premises exist on the date Landlord turns over the key to the Premises to Tenant or Tenant's designee. Tenant further acknowledges that Landlord has not made any representations as to the present or future condition of the Premises or what items, if any, the present occupant of the Premises is required to or may leave therein. Landlord shall not be required to send Tenant any formal notice tendering possession of the Premises nor shall Landlord be liable in the event the existing occupant of the Premises fails to timely vacate the same, except that any delay in occupancy shall extend the Required Opening Date specified herein for a period equal to the number of days between the Construction Commencement Date specified herein and the date such former tenant vacates; provided that if physical possession of the Premises is not available by a date which is one year from the Construction Commencement Date, at Landlord's option, this Lease shall be null and void and neither party shall have any liability hereunder to the other. McGrath's Cafo-CapitalCityMall-FinalFinalFinal June 7, 2006 1 Collins/JCR (b) Tenant shall perform all work required to be performed by Tenant to remodel the Premises as set forth below and to adapt the same for Tenant's use, as such use is specified and limited by the Fundamental Lease Provisions, all such work being referred to herein as "Tenant's Work". Tenant shall design the Premises in accordance with Landlord's current store and storefront design criteria booklet and otherwise comply with all insurance and other requirements therein (herein called "Store Design Criteria"), a copy of which Tenant acknowledges it has received. Tenant shall instruct its architect or designer to prepare Tenant's plans for the Premises in compliance with the Americans with Disabilities Act, the Clean Air Act and all other applicable laws, rules, codes, and regulations. In the event of any inconsistencies between the text of this Lease and the Store Design Criteria, the latter shall prevail. Entry by Tenant to the Premises prior to the Rent Commencement Date shall be subject to all of the provisions of this Lease, except the duty to pay Rent but Tenant shall pay for all utilities and services supplied to it during such period. Tenant agrees to perform Tenant's Work in accordance with the provisions of this Lease and such manner so as not to cause any interference with the use, occupancy or enjoyment of the remainder of the Shopping Center, or any part thereof. Tenant shall promptly cause to be repaired all items which may have been damaged as a result of the performance of Tenant's Work promptly upon the occurrence of such damage and shall at all times keep all portions of the Shopping Center (other than the Premises) free from and unobstructed by debris, equipment or materials related to Tenant's Work. Tenant's Work shall be commenced on or before October 1, 2006 (the "Construction Commencement Date") and shall be completed on or before February 1, 2007 (the "Required Opening Date"). Tenant's Work shall include the following work to the entire Premises: 1. 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 fire protection systems. 8. Install new Storefront construction and finishes with display window (s). 9. 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 folkwing construction with respect to the roof ("Landlord's Roof Work") all roof penetrations, curbing and exterior wail cuts necessary for the installation of a new HVAC System including a new rooftop unit for the Premises. In addition, Landlord shall make wall cuts for entrances and windows at places to be mutually agreed upon by Tenant and Landlord (the "Wall Cuts"). Furthermore, Tenant shall reimburse Landlord for Landlord's Roof Work and the Wall Cuts as follows: Landlord shall deliver a bill for Landlord's Roof Work and the Wall Cuts to Tenant and the amount of such bill shall be deducted from Tenant's Allowance, as defined section 23.26 of this Lease. Notwithstanding anything to the contrary set forth herein, Tenant shall have the right to review cost estimates for Landlord's Roof Work and the Wall Cuts prior to Landlord securing and/or commencing Landlord's Roof Work and the Wall Cuts. (c) On or before the Design Drawing Submission Date, Tenant shall submit to Landlord's tenant coordinator (herein called the "Tenant Coordinator") for the Landlord's approval design drawings (herein called the "Design Drawings") specifying each aspect of Tenant's Work and specifically including a colored rendering of the proposed storefront and signing, sample materials to be used in the Premises and sign, photograph of fixtures to be used and the interior layout of the Premises. The Design Drawings shall be prepared in accordance with the Store Design Criteria. After receipt of the Design Drawings, Landlord shall return to the Tenant the Design Drawings, either "approved", "approved as noted" or "disapproved"; if they are marked "disapproved", Landlord shall also note the reasons of such disapproval. On or before thirty (30) days after receipt of the "disapproved" Design Drawings, Tenant shall resubmit to the Tenant Coordinator revised Design Drawings meeting Landlord's objections. Landlord shall thereafter return the same to Tenant, marked as set forth above and Tenant shall within an additional thirty (30) day period resubmit revised drawings until the same have been "approved as noted" or "approved". On or before thirty (30) days after receipt of "approved as noted" or "approved" Design Drawings Tenant shall submit to the Tenant Coordinator for Landlords approval, working drawings and specifications (herein called "Final Plans") for architectural, electrical, mechanical, sprinkler and plumbing work within the Premises and all other Tenant Work proposed by Tenant and shown on the Design Drawings and required by the 'Store Design Criteria. The Final Plans shall be prepared in accordance with the Design Drawings as marked "approved as noted" or "approved" by Landlord. The Final Plans shall incorporate any revisions required by Landlord to the Design Drawings, including those forming the basis of Landlord's approving the same "as noted". After receipt of the Final Plans, Landlord shall return to Tenant the Final Plans, marked either "approved", "approved as noted" or "disapproved". If they are marked "disapproved", Landlord shall state the reasons for such disapproval and Tenant shall, on or before ten (10) days after receipt of such "disapproved" Final Plans; correct any deficiencies stated by Landlord and resubmit within ten (10) days corrected Final Plans to Landlord until same are accepted as "approved as noted" or "approved". If Landlord accepts Tenant's Final Plans "approved as noted", Tenant need not resubmit the same to Landlord's Tenant Coordinator, but Tenant shalt revise such Final Plans to incorporate Landlord's required changes and Tenant covenants that the Tenant Work in the Premises shall be constructed in such fashion as to comply with the notes disclosed on such "approved as noted" Final Plans. If Tenant does not correct such deficiency and resubmitany disapproved Final Plans within the required time period, such failure shall constitute an Event of Default. Tenant's Work shall be performed only in accordance with the Final Plans, as marked "approved as noted" or "approved" by Landlord. Tenant's failure to submit its Design Drawings on or before the Design Drawings Submission Date or Tenant's failure to commence Tenant's Work on or before the Construction Commencement Date shall be an Event of Default pursuant to 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 00/100 Dollars ($250.00) to defray the cost of reviewing Tenant's Design Drawings and Final Plans. McGrath's Caf6-CapitalCityMall-FinaiFinalFinal June 7, 2006 t Collins/JCR (e) On or before the Construction Commencement Date, Tenant shall deposit with Landlord certificates of insurance as required in Article 11 and the Store Design Criteria, as well as a true copy of Tenant's building permit and Tenant shall commence Tenant's Work and prosecute it diligently and continuously to completion including installation of fixtures and equipment in the Premises. Prior to the commencement of any Tenant Work or the delivery of any material to the Premises by any contractor, subcontractor or materialman (herein called "Contractor"), Tenant shall deliver to the Tenant Coordinator a signed, acknowledged and sealed waiver of liens (herein called "Contractors Waiver of Liens") from each Contractor in the form specified by Landlord. The Contractor's Waiver of Liens provides, among other things, that the Contractor waives any and all lien rights that it may have against Landlord's estate, right, title and interest in the Shopping Center and any part thereof including, without limitation, Landlord's Building and the Mail Premises. Within thirty (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". (f) Landlord shall have the right to post and keep posted in the Premises notices of non-responsibility, or such other notices as Landlord may deem to be proper for the protection of the Landlord or Landlord's estate, right, title and interest in the Shopping Center and any part thereof. Tenant shall before the commencement of any work which might result in any claim, lien or other charge give to the Landlord written notice of its intention to commence said work in sufficient time to enable Landlord to post, file and record such notices. The provisions of this Section 2.03 shall apply with respect to Tenant's Work or any other work performed in or about the Premises at any time during the Term hereof. Section 2.04: OPENING OF PREMISES. (a) Tenant agrees to open its business to the public in the Premises no later than the Required Opening Date specked in the Fundamental Lease Provisions. (b) Tenant shall complete, or cause to be completed, Tenants Work and the installation of fixtures, equipment and merchandise no later than the Required Opening Date. If Tenant fails to open its business to the public in the Premises within thirty (30) days of the Required Opening Date, Tenant shall pay to Landlord, in addition to Minimum Rent and Additional Rent, an amount equal to One Hundred Dollars ($100.00) for each day Tenant's business remains not open in the Premises from and after the Required Opening Date (counting the said Required'Opening Date as the first such day). Any and all sums and other charges payable by Tenant to Landlord pursuant to,the immediately preceding sentence shall be paid on demand to offset administrative costs and expenses incurred by Landlord as a result of Tenant's late opening and shall in no way abrogate, or relieve Tenant from any of Tenant's obligations under this Lease, including without limitation the obligation to open its business in the Premises, and Landlord shall have all other rights and remedies under this Lease, at law and in equity, arising from Tenant's failure to open pursuant to this Section 2.04(b). Section 2.05: MECHANIC'S LIENS. (a) Tenant will not permit to be created or to remain undischarged any lien, encumbrance or other charge arising out of any work done or materials or supplies furnished by any contractor, subcontractor, mechanic, laborer or materialman or any mortgage, conditional sale, security agreement or chattel mortgage which might be or become a lien or encumbrance or other charge (collectively a "Charge") against or upon the Shopping Center or any part thereof, including without limitation the Mall Premises and Landlord's Building or the income therefrom. Tenant will not suffer any other matter or thing whereby the estate, right, title and interest of Landlord in the Shopping Center or any part thereof including without limitation the M211 Premises and Landlord's Building might be impaired. If any claim or lien or notice of claim or lien on account of an alleged debt of Tenant or any notice of contract or Charge by a person engaged by Tenant or Tenant's 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 discharged within the period aforesaid, then, in addition to any other right or remedy it may have, Landlord may, but shall not be obligated to, discharge the same by payment, deposit or by bonding proceedings, and in any such event Landlord shall be entitled, if Landlord so elects, to compel the prosecution of an action for the foreclosure of the same by the claimant and to pay the amount of any judgment in favor of the claimant with interest, costs and allowances. Any amount so paid by Landlord and all interest, costs and expenses, including attorneys' fees, incurred by Landlord in connection therewith, shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord on demand. Nothing herein contained shall obligate Tenant to pay or discharge any Charge created by Landlord. (b) Tenant shall pay promptly all persons furnishing labor or materials with respect to any work by Tenant or Tenant's contractor in or about the Premises. No work which Landlord permits Tenant to do stall be deemed to be for the immediate use and benefit of Landlord so that no mechanics' or other claim, lien or other Charge shall be allowed against the estate, right, title or interest of Landlord by reason of any consent given by Landlord to Tenant to do work in or about the Premises or provide materials therefor. Nothing contained herein shall imply any consent or agreement on the part of Landlord to subject Landlord's estate to liability under any mechanics' or other lien law. Section 2.06: Restaurant installations Tenant shall provide at its own cost and expense automatic sprinkler protection and CO2 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 Cafe-CapitatCityMal6FinalFinalFina1 June 7, 2006 t Collins/JCR accommodate all of the containers, straws, paper plates, etc. used or consumed by patrons of Tenant's 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 of the "Interim Term" (hereafter defined) followed immediately by the period of the "Rent Term" (hereinafter defined). The "Interim Term" means the period commencing on the date of this Lease and ending on the date immediately preceding the Rent Commencement Date. The "Rent Term" means the period commencing on the Rent Commencement Date and ending on the Expiration Date, as extended pursuant to Section 21.02 hereof or by agreement executed by Landlord and Tenant or sooner terminated as provided herein, as the case may be. During the Interim Term, if Tenant is not open for business in the Premises, all of the provisions of this Lease shall apply except that Tenant's obligation to pay Rent shall abate, other than for utilities and trash charges. Section 3.02: YEARS. The term "Year" means each successive twelve (12) month period from January 1 through December 31 occurring during the Term, plus, if applicable any Partial Year. "Partial Year" means the period between and including the Rent Commencement Date, if that date is not January 1, and the next succeeding December 31 and, if applicable, if the Term ends on other than a December 31, the period beginning on the last January 1 of the Term and ending on the last day of the Term. ARTICLE 4: RENT Section 4.01: TENANTS AGREEMENT TO PAY RENT. Tenant hereby agrees to pay for the right of use and occupancy of the Premises during the Rent Term, at the times and in the manner herein provided, the Minimum Rent, Percentage Rent and Additional Rent. As used in this Lease, the term "Rent" means, collectively, the Minimum Rent, Percentage Rent and Additional Rent. Section 4.02: RENT COMMENCEMENT DATE. As used in this Lease, the term "Rent Commencement Date" shall mean the earlier of: (a) the date on which Tenant initially opens its business to the public in the Premises (the "Actual Opening Date"); or (b) the date set forth as the Required Opening Date in the Fundamental Lease Provisions. Section 4.03: MINIMUM RENT. (a) The base rent Tenant shall pay Landlord for each Year shall be the amount set forth in the Fundamental Lease Provisions as the Minimum Rent per Year and shall be payable in twelve (12) equal monthly installments, in advance, on the first day of each calendar month. (b) The base rent Tenant shall pay Landlord for any Partial Year shall be that amount set forth in the Fundamental Lease Provisions as the Minimum Rent per Year times the Partial Year Fraction. As used in this Lease, "Partial Year Fraction" means a fraction, the numerator of which is the number of days in the applicable Partial Year, and the denominator of which is three hundred sixty-five (365). The base rent payable for a Partial Year shall be paid in equal monthly installments, in advance, on the first day of each calendar month; except that if the Rent Commencement Date is not the first day of a calendar month, then that portion of such base rent which is attributable to the days in that first partial calendar month shall be paid, in advance, on the Rent Commencement Date. (c) The base rent payable by Tenant pursuant to Section 4.03(a) or (b), whichever is applicable, is called the "Minimum Rent" in this Lease. Minimum Rent shall be prorated for partial months, if any. If the Minimum Rent increases during the Rent Term, for the purpose of determining the date on which Minimum Rent increase(s) become effective, a partial month shall be disregarded. (d) If, at any time during the Term the Shopping Center shall be expanded by the addition of one or more Majors' Premises or the Shopping Center is expanded by more than 75,000 square feet of GLA, Tenant agrees that the Minimum Rent provided in the Fundamental Lease Provisions shall be increased by five percent (5%) 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%). 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) multiplied by the amount of Gross Sales made during such Year in excess of the applicable Break Point set forth in the Fundamental Lease Provisions. The Percentage Rent for each Partial Year shall be an amount equal to the Percentage multiplied by the amount of Gross, Sales made during such Partial McGrath's Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 t Collins/JCR Year in excess of the Partial Year Break Point. The term "Partial Year Break Point" shall mean an amount equal to the Break Point multiplied by the Partial Year Fraction for the applicable Partial Year and the Break Point and Partial Year Break Point are collectively referred to as the "Break Point". (b) In each Year or Partial Year, Tenant shall be obligated to pay Percentage Rent beginning with the first month in which the aggregate amount of Gross Sales made for such Year or Partial Year exceeds the Break Point. Tenant shall pay Percentage Rent (in addition to Minimum Rent and Additional Rent) for each and every succeeding month during the remainder of such Year or Partial Year on ail additional Gross Sales. Each payment of Percentage Rent shall be paid by Tenant to Landlord without demand and otherwise as set forth in this Article 4 together with Tenant's monthly statement of Gross Sales provided for in Section 4.06, subject to the annual adjustment provided for in such Section 4.06. (c) In the event any Break Point is subject to adjustment during the term of this Lease, and the date on which any such adjustment is to occur (hereafter referred to as the "Rental Adjustment Date") is other than the first day of a Year, the Break Point for the Year in which the Rental Adjustment Date shall fall shall be the sum of: (1) the initial Break Point multiplied by a fraction the numerator of which shall be the number of days in the period commencing on the first day of the Year in which the Rental Adjustment Date shall fall and ending on the day immediately prior to the Rental Adjustment Date and the denominator of which shall be three hundred sixty-five (365), plus (2) the latter Break Point multiplied by a fraction, the numerator of which shall be the number of days in the period commencing on the Rental Adjustment Date and ending on the last day of the Year in which the Rental Adjustment Date shall fall and the denominator of which shall be three hundred sixty-five (365). (d) Notwithstanding the foregoing, solely for the purpose of computing Percentage Rent, Landlord agrees that the first Year shall be deemed to be the period between the Rent Commencement Date of the Tenn of the Lease and December 31 of the second Year 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, and the balance of the first Year. The Partial Year shall be that period of time between the Rent Commencement Date of the Term of this Lease and the day prior to the first anniversary of such date, and the Percentage Rent payable, if any, for such Partial Year shall be calculated by multiplying by four percent (4%) the amount, if any, by which Tenant's Gross Sales during such Partial Year shall exceed the sum of Two Million Dollars ($2,000,000.00). Payment of any Percentage Rent due Landlord for the Partial Year shall be made within thirty (30) days after the end of such Partial Year, and shall be accompanied by the statement referred to in Section 4.06. The balance of the first Year shall be that period of time between the January 1st which next follows the Rent Commencement Date of the Term of this Lease, and the December 31st of the second year after such Rent Commencement Date, and any Percentage Rent for the balance of the Year shall be paid in the manner and at the time specked in Section 4.04. For example, if Tenant initially opens for business on September 1 st, Percentage Rent for the Partial Year shall be computed based upon the next succeeding August 31st, and if such Gross Sales between the said September 1 st and August 31 st shall exceed the sum referred to above, Tenant shall pay as Percentage Rent for the Partial Year the percentage of such excess referred to above. It is also agreed that Tenant's Gross Sales for the period of time which will provide Tenant with a full twelve (12) month Partial Year (in the foregoing example, August 31st) shall also be used to determine any Percentage Rent due by Tenant during the balance of the first Year. Section 4.05: GROSS SALES. (a) The term "Gross Sales" means the total gross receipts and receivables of all merchandise, wares and other goods sold or leased and the actual charges for all services performed, business conducted and accommodations rendered by Tenant and by any subtenant, licensee, concessionaire and other occupant in, at, from, or arising out of the use of the Premises, whether wholesale or retail, whether for cash or credit, or otherwise, and including the value of all consideration other than money received for any of the foregoing, without reserve or deduction for inability or failure to collect, including but not limited to sales, leases and services: (i) where the orders therefor originate in, at, from or arising out of the use of the Premises, whether delivery or performance is made from the Premises or from some other place and regardless of the place of bookkeeping for, payment of, or collection of any account; or (ii) made or performed by mail, telephone, Internet, website or similar means and orders received or filled or delivered in, at or from the Premises; or (iii) made or performed by means of telephonic, mechanical or other vending means or devices in or for the Premises; or (iv) which Tenant, and any subtenant, licensee, concessionaire and other occupant, in the normal and customary course of its business, would or does credit or attribute to its operations at the Premises or any part thereof. Any deposit accepted and retained by Tenant shall be included in Gross Sates. Each installment or credit sale shall be treated as a sale for the full price in the month during which such sale Is made, irrespective of whether or when Tenant receives payment therefor. No franchise, value added tax, capital stock tax, tax based upon assets or net worth or gross receipt tax, and no income or similar tax based on income or profits shall be deducted from Gross Sales. (b) Only the following shall be excluded from Gross Sales: W any exchange of merchandise between stores of Tenant when such exchange is made solely for the convenient operation of Tenant's business and is not for the purpose of consummating a sale made in, at or from the Premises; (ii) returns to suppliers, shippers or manufacturers; (iii) cash or credit refunds to customers on transaction otherwise included in Gross Sales; (iv) sales of fixtures, machinery and equipment, which are not stock for sale or trade, after use thereof in the conduct of Tenant's business; McGrath's Cafe-CapitalCityMall-FinalFinatFinal June 7, 2006 1 Collins/JCR 10 (v) amounts separately stated in the sales receipt and collected from customers which are paid by Tenant to any government for any sales or excise tax imposed by law at the point of sale. (vi) to employees at a discount up to an aggregate of $10,000.00; and, (vii) third party credit card charges, finance charges separately stated as such, and bad debts, up to an aggregate annual amount of two (2%) percent of annual Gross Sales. Section 4.06: REPORTING OF GROSS SALES; YEAR END ADJUSTMENT. (a) Tenant shall furnish to Landlord within twenty (20) days after the end of each calendar month during the Term a complete statement (the "Monthly Report"), certified by Tenant (or a responsible financial officer thereof if Tenant is a corporation), setting forth (i) the amount of Gross Sales during such month, (ii) the aggregate amount of Gross Sales during such Year (or Partial Year, as the case may be), including such month, (iii) the amount, it any, by which such aggregate amount of Gross Sales exceeds the Break Point, and (iv) the amount of Percentage Rent previously paid by Tenant to Landlord for such Year (or Partial Year, as the case may be). The Monthly Report shall be in such form and style and contain such details and breakdown as Landlord may reasonably require. (b) Tenant will also furnish to Landlord within sixty (60) days after the end of each Year a complete statement (the "Yearly Report") certified by the chief financial officer of Tenant, showing in reasonable detail the amount of Gross Sales during such Year and the amount paid to Landlord pursuant to Section 4.04(b) for such Year. The Yearly Report shall be accompanied by the signed opinion of the person certifying the Yearly Report specifically stating that such person has read the definition of "Gross Sales" contained in this Lease, that such person has examined the Yearly Report of Gross Sales of such Year, that such person's examination included such tests of Tenant's books and records as such person considered necessary under the circumstances, and that the Yearly Report accurately represents the Gross Sales of such Year. (c) An adjustment shall be made with the furnishing of each Yearly Report with respect to Percentage Rent as follows: if Tenant shall have paid to Landlord an amount greater than Tenant is required to pay as Minimum Rent and Percentage Rent under the terms of Sections 4.03 and 4.04(a), Tenant shall receive a credit of such excess against payments of Minimum Rent next becoming due to Landlord; or, if Tenant shall have paid an amount less than was required to be so paid, then Tenant shall forthwith pay such difference. In no event, however, shall the sum of the Minimum Rent and Percentage Rent to be paid by Tenant and retained by Landlord under the terms of Sections 4.03 and 4.04(a) for any given Year be less than the Minimum Rent for such Year. (d) The reports required by this Section 4.06 shall be delivered to Landlord at the notices address of Landlord or to such other person and/or to such other place as may be designated from time to time by notice from Landlord to Tenant. If Tenant shall fail to deliver any Monthly Report and/or Yearly Report when due, in addition to all of Landlord's other rights and remedies hereunder, Tenant shall pay to Landlord, as Additional Rent, an amount equal to Twenty Five Dollars ($25.00) per day for each day such statement is overdue. Section 4.07: TENANT'S RECORDS & AUDITS. (a) Tenant covenants and agrees that the business records of Tenant and of any subtenant, licensee or concessionaire shall be maintained in accordance with generally accepted accounting principles. Furthermore, Tenant shall keep at all times during the Term, at the Premises or at the home or regional office of Tenant, full complete and accurate books of account and records in accordance with generally accepted accounting practice with respect to all operations of the business conducted in or from the Premises, including the recording of Gross Sales and the receipt of all merchandise and other goods into and the delivery of all merchandise and other goods from the Premises during the Tenn, and shall retain such books and records, copies of all tax reports and tax returns submitted to taxing authorities, as well as copies of contracts, vouchers, checks, inventory records and other documents and papers in any way relating to the operation of such business for at least three (3) years from the end of the period to which they are applicable, or if any audit is required or a controversy should arise between the parties hereto regarding the Rent payable hereunder, until such audit or controversy is terminated even though such retention period may be after the expiration of the Term or earlier termination of this Lease. Such books and records shall be open at all reasonable times during the aforesaid retention period to the inspection of Landlord or its duly authorized representatives, who shall have full and free access to such books and records and the right to require of Tenant, its agents and employees, such information or explanation and audit thereof and the right to require Tenant to make such books, records and other materials which Tenant is required to retain available at the Premises for such examination and audit. (b) The acceptance by the Landlord of payments of Percentage Rent shall be without prejudice to the Landlord's examination and audit rights hereunder. Landlord may at any reasonable time, upon ten (10) days' prior written notice to Tenant, cause a complete audit to be made of Tenant's entire books, records and other materials which Tenant is required to retain (including the books and records of any subtenant, licensee, concessionaire and other occupant) for all or any part of the three (3) year period immediately preceding the day of the giving of such notice by Landlord to Tenant. If such audit shall reveal a deficiency in any payment of Percentage Rent, Tenant shall forthwith pay to Landlord the amount of the deficiency. (c) If such audit shall disclose that (i) 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 (ii) Tenant has not recorded Gross Sates, or kept books of account and records, as and for the period required by this Section 4.07; or (iii) if Tenant shall be delinquent in delivering to Landlord the Yearly Report or Monthly Reports for two (2) consecutive months, or more than twice in any Year or Partial Year, then such understatement, failure or delinquency shall be an Event of Default. In addition, in the event of such understatement or failure, Landlord shall have the right to bill to Tenant the amount of any deficiency in Percentage Rent and the reasonable cost of said audit which shall be paid by Tenant within ten (10) days after demand which deficiency will bear interest at the "Default Rate" (defined in Section 16.03 hereof) from and after the date it should have been paid until paid (d) In the event Tenant violates the provisions of Sections 4.06 or 4.07 or both and as a result of such violation, Landlord, or its duly authorized representatives, is unable to conduct a proper examination and/or audit, the parties agree that Landlord shall have been deprived of an important right under this Lease and, as a result thereof, will McGrath's Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 t Collins/JCR 11 suffer damages in an amount which is not readily ascertainable and thus, in such event, Landlord, in addition to and not in lieu of any other remedies which Landlord has under this Lease, at law or in equity, shall have the right, at its option, to collect, as liquidated damages and not as a penalty, an amount equal to ten percent (10%) of the greater of (i) Percentage Rent reported for the period or periods in question, or (ii) the annual Minimum Rent payable for the period or periods in question. Tenant agrees to pay such liquidated damages. Section 4.08: ADDITIONAL RENT. In addition to Minimum Rent and Percentage Rent, Tenant shall pay, as additional rent (herein sometimes collectively called "Additional Rent") all other amounts, sums of money or charges of whatsoever nature required to be paid by Tenant to Landlord pursuant to this Lease, whether or not the same is designated as "Additional Rent". The terms "Taxes", "Tax Charge", "CAM Sum" and "CAM Charge" are defined in Articles 5 and 8, respectively. In computing the Tax Charge, the CAM Charge and any other charge to Tenant computed on the same or substantially similar basis as the Tax Charge or the CAM Charge (collectively "Other Like Charges"), the net payments by the occupant of the Majors and Junior Majors to Landlord toward the Taxes, the CAM Sum or the sums on which Other Like Charges are based (collectively the "OLC Sums") shall be applied respectively to reduce the Taxes, the CAM Sum and the particular OLC Sum before apportionment and determination of the Tax Charge, CAM Charge or Other Like Charge to be paid by Tenant and for the purposes of computing the Tax Charge, the CAM Charge and such Other Like Charge, the denominator of the GLA Fraction shall not include the GLA of the Majors' Premises and the Junior Majors' Premises. Section 4.09: WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTIONS. Rent payable by Tenant under this Lease (whether Minimum Rent, Percentage Rent, or Additional Rent) shall be paid when due without prior demand therefor (unless such prior demand is expressly provided for in this Lease), shall be payable without any deductions or setoffs or counterclaims whatsoever (except for credits expressly permitted by this Lease) and shall be paid by Tenant to Landlord at the payment address of Landlord set forth in the Fundamental Lease Provisions or to such payee and/or at such other place as may be designated from time to time by notice from Landlord to Tenant. At the end of the Term, provided Tenant is not in default, Landlord shall refund to Tenant any amount of excess Rent paid to Landlord and any other amounts due from Landlord to Tenant. Any Rent, or installment thereof, which is not paid by Tenant to Landlord within ten (10) calendar days after it is due shall bear interest at the Default Rate. In the event any installment of Minimum Rent or other sum under this Lease shall not be paid when due, a "Late Charge" of two cents ($.02) per each dollar so overdue may be charged by Landlord, as Additional Rent, for the purpose of defraying Landlord's administrative expenses incident to the handling of such overdue payments. If Tenant pays any installment of Rent by check and such check is returned for insufficient funds or other reasons not the fault of Landlord, then Tenant shall pay Landlord, on demand, a processing fee of 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. Tenant shall pay to Landlord in each calendar year, as Additional Rent, Tenant's share of all real estate and other ad valorem taxes and other assessments, impositions, excises and other governmental or quasi-governmental charges of every kind and nature (including, but not limited to, general and special assessments, sewer and fire district assessments, foreseen as well as unforeseen and ordinary as well as extraordinary) with respect to the Shopping Center and all improvements thereon or any part thereof. Such taxes and assessments are collectively called the "Taxes" in this Lease. Tenant's share of the Taxes in each calendar year (the "Tax Charge") shall be an amount equal to the product obtained by multiplying the Taxes applicable to such calendar year by the GLA Fraction (with daily proration for any Partial Year). "Taxes" shall also include Landlord's reasonable costs and expenses (induding 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 monthly installments in advance in such amounts as are estimated and billed by Landlord based upon the total Taxes payable in each calendar year. Landlord may revise its estimate and may adjust such monthly payment at the end of any calendar month. The first such installment shall be due and payable by Tenant on the Rent Commencement Date (prorated for the remaining number of days in the calendar year) and subsequent installments shall thereafter be due and payable at the beginning of each ensuing calendar month during the Term. In addition to the payments provided for in the immediately preceding sentence, if, prior to the Rent Commencement Date, Landlord shall have prepaid all or a portion of the Taxes applicable to the Term, the Tax Charge shall include and Tenant shall reimburse to Landlord the Tenant's share of such Taxes (calculated in accordance with the provisions of Section 5.01), on or before the Rent Commencement Date. Landlord shall send to Tenant an invoice setting forth Tenant's share of such Taxes, together with copies of receipted bills evidencing Landlord's payment of such Taxes. (b) After Landlord has received the Tax bills for each calendar year, Landlord will notify Tenant of (I) the amount of Taxes on which the Tax Charge is based, (ii) the amount of any refund, reduction or deferral expenses, (ii!) the total GLA of the Premises and Landlord's Building on which the Tax Charge is based and (iv) the amount of the Tax Charge. If the aforesaid monthly payments on account of the Tax Charge for a given calendar year are greater than Tenant's share of the Taxes payable for a given calendar year, Tenant shall receive a credit from landlord for the excess against installments of the Tax Charge next becoming due to Landlord, and if said payments are less than Tenant's share, Tenant shall forthwith pay Landlord the difference. McGrath's Cafd-CapkelCityMall-FinalFinalFinal June 7, 2006 \ Collins/JCR 12 Section 5.03: TENANT'S ADDITIONAL TAX OBLIGATIONS. (a) Tenant shall pay before delinquency any and all taxes, assessments, impositions, excises, fees and other charges levied, assessed or imposed by governmental or quasi-governmental authority upon Tenant or its business operation, or based upon the use or occupancy of the Premises, or upon Tenant's leasehold interest, trade fixtures, furnishings, equipment, leasehold improvements (including, but not limited to, those required to be made pursuant to Tenant's Work) alterations, changes and additions made by Tenant, merchandise and personal property of any kind owned, installed or used by Tenant in, from or upon the Premises. If the property of Landlord is included in any of the foregoing items, the aforesaid taxes, assessments, impositions, excises, fees and other charges shall nonetheless be paid by Tenant as herein provided. Tenant shall pay, when due and payable, any sales tax, or other tax, assessment, imposition, excise or other charge now or hereafter levied, assessed or imposed upon or against this Lease or any Rent or other sums paid or to be paid hereunder, or Tenant's, Landlord's or Agent's interest in this Lease or any Rent or other sums paid or to be paid hereunder. Should the appropriate taxing authority require that any tax, assessment, imposition, excise or other charge referred to in this Section 5.03(a) be collected by Landlord or Agent for or on behalf of such taxing authority, then such tax, assessment, imposition, excise or other charge shall be paid by Tenant to Landlord or to Agent monthly as Additional Rent in accordance with the terms of any notice from Landlord or Agent to Tenant to such effect. The taxes, assessments, impositions, excises, fees and other charges described in this Section 5.03(a) shall be the obligation of Tenant and not Landlord or Agent. If any tax, assessment, imposition, excise, fee or other charge covered by this Section 5.03(a) is imposed on Landlord or Agent, Tenant shall pay the same to Landlord within thirty (30) days after receipt of each bill therefor. (b) Nothing herein contained shall be construed to include in Taxes any inheritance, estate, succession, transfer, gift, franchise, corporation, net income or profit tax or capital levy that is or may be imposed upon Landlord; provided, however, that, if at any time during the Term the methods of taxation prevailing at the commencement of the Term shall be altered so that in lieu of or as a supplement to the whole or any part of the taxes now levied, assessed or imposed on real estate as such there shall be levied, assessed or imposed (i) a tax on the rents received from such real estate, or (ii) a license fee measured by the rents receivable by Landlord from the Shopping Center or any portion thereof, or (iii) a tax or license fee imposed upon Landlord which is otherwise measured by or based in whole or in part upon the Shopping Center or any portion thereof, then the same shall be included in the computation of Taxes hereunder, computed as if the amount of such tax or fee so payable were that due if the Shopping Center were the only property of Landlord subject thereto. If any gross receipts tax shall be payable by Landlord, Tenant shall pay the portion thereof attributable to Landlord's receipts from this Lease. ARTICLE 6: SERVICES Section 6.01: UTILITIES. (a) During the Term, Tenant shall be solely responsible for and promptly pay all charges for heat, water, electricity, sewer rents or charges, sprinkler charges, A_D.T. or other alarm system, water treatment facility charges, and any other utility used or consumed in the Premises or in providing heating and air conditioning to the Premises together with all connection and service charges and all taxes or other charges levied on such utilities. Should Landlord elect or be required to supply or make available any utility used or consumed at the Premises, Tenant agrees to purchase and pay for same, as Additional Rent, every month in the Term; provided that Tenant shall not be obligated to pay to Landlord an aggregate annual sum therefor in excess of the aggregate annual amount therefor which Tenant would otherwise be obligated to pay for similar utility usage and service as a retail customer of the public utility or municipal' authority then supplying such utility to the Shopping Center. In addition, Tenant shall also pay any taxes, surcharges, impositions, penalties or other additional charges applicable to the utility service being supplied, provided that such taxes, surcharges, impositions or other charges are required by law to be collected from Tenant or are paid by Landlord to its supplier of the utility service in question. Landlord may, at its option, install an Energy Management System to efficiently conserve utility usage, if Installed, and Tenant agrees to pay monthly, the sum of Fifty and 00/100 ($50.00) Dollars as Tenant's share of the Energy Management System purchase, installation, maintenance and upgrade costs. If permitted by law, Landlord shall have the right at any time and from time to time during the Term to either contract for service from a different company or companies providing utility service to the Shopping Center. (b) In the event the Premises does not presently contain an electric or other utility meter, at Landlord's request, Tenant shall, within forty-five (45) days after receipt of such request and at its sole cost and expense, install a meter of a type approved in advance by Landlord. Thereafter, at Landlord's request, Landlord and Tenant shall enter into an amendment to this Lease specifying the procedures for reading such meter and the rendering of bills to Tenant for the utility being so metered. In the event Landlord or the local authority, municipality, utility or other body supplies water and/or sewer services and collects for such service and/or consumption, Tenant covenants and agrees to pay the water and sewer charge (both minimum and otherwise) and any other tax, rent, levy, connection fee or meter or other charge which now or hereafter is assessed, imposed or may become a lien upon the Premises, or the Shopping Center, pursuant to law, order or regulation made or issued in connection with the use, consumption, maintenance or supply of water, or the water or sewerage connection or system. Such charges shall be based on metered readings or other formula specified by Landlord. (c) Landlord shall not be liable or responsible for any loss, damage or expense Tenant may sustain or incur by reason of any change, failure, curtailment, interruption, disruption, "brown out" or defect in the supply or character of any utility supplied to the Shopping Center or Premises or if the quantity or character of the utility supplied by Landlord or any service provider is no longer available or suitable for Tenant's requirements and none of the foregoing shall constitute an actual or constructive eviction or entitle Tenant to any abatement or diminution of Rent or relieve Tenant from any of its obligations under this Lease. Tenant shall operate the Premises in such a manner as shall not waste energy or water or burden or damage the utility lines therein. (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 Caf6-CapitalCityMalt-FinalFinalFinal June 7, 2006 1 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 insure utilities being available at the demised premises no later than the commencement of the term and pay all required deposits, connection fees and/or charges for meters within the applicable time period set by the local utility company. Section 6.03: TRASH AND GARBAGE REMOVAL. Tenant shall be solely responsible for trash and garbage removal from the Premises, including the placing of all trash and garbage in containers provided by Landlord for such purpose. In the event Landlord elects to furnish such service to the tenants in Landlord's Building, Tenant agrees to use only the service provided by Landlord and to pay for such service (including, without limitation, both the cost of leasing containers and the cost of removal) monthly, as Additional Rent, in accordance with a schedule of charges to be established by Landlord (the "Refuse Handling Charge"). In no event shall Tenant be obligated to pay Landlord more for the Refuse Handling Charge than the prevailing competitive rates of reputable independent trash removal contractors for service similar to that provided by Landlord. Tenant shall not dispose of any hazardous materials or environmentally sensitive or restricted item of waste in any trash facilities provided by Landlord, and in lieu thereof, Tenant shall arrange, at its sole cost and expense, to have all such items removed from the Premises and Shopping Center in accordance with all Governmental Requirements (hereinafter defined). ARTICLE 7: USE OF PREMISES Section 7.01: SOLE USE AND TRADE NAME. Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously use and operate all of the Premises for the use set forth in the Fundamental Lease Provisions and under Tenant's Trade Name set forth therein. Tenant shall not use or permit the Premises to be used for any other purpose or under any other trade name without the prior written consent of Landlord. Tenant agrees that if Tenant or anyone else claiming through or under Tenant uses the Premises for a use or trade name not set forth in the Fundamental Lease Provisions without Landlord's prior written consent, such conduct shall constitute an Event of Default. Tenant shall, at its expense, procure any and all governmental licenses and permits, 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 business within and otherwise use the Premises in accordance with the terms and conditions of this Lease, including, without limitation, the provisions of Section 7.01 hereof and all of the other provisions of this Article 7 (unless the Premises are rendered unfit for occupancy by reason of fire or other casualty, in which event Article 12 shall control). Tenant will keep the Premises open for business to the public at least: (a) every Monday through Saturday from 10:00 a.m. until 9:30 p.m.: and (b) also on Sunday from 11:00 a.m. until 7:00 p.m. (unless prohibited by jurisdictional authorities) as required by Landlord. In addition to any other right or remedy, the Break Point shall be reduced, at Landlord's option, on a per diem basis for each violation of the foregoing and Tenant shall pay to Landlord the Percentage' Rent so computed by Landlord. The per diem reduction shall be the amount of the applicable Break Point divided by 365 for each violation. Tenant agrees that Landlord may change the foregoing business hours from time to time to reflect local custom or seasonal shopping patterns provided that such changes are uniformly applied to the majority of retail tenants in Landlord's Building. Tenant shall not be required to keep the Premises open during hours when the Enclosed Mall is dosed to the public. The requirements of this Section 7.02 are subject, with respect to any business controlled by governmental regulations in its hours of operation, to the hours or operation so prescribed by such governmental regulations and are further subject to applicable federal, state, and local environmental and other laws, rules, or regulations, guidelines, judgments or orders. Section 7.03. OPERATIONAL REQUIREMENTS. Tenant agrees that it: (a) will not in connection with the Premises conduct or permit to be conducted any auction, fire, bankruptcy or going out of business sales, or similar type sale, or utilize any unethical method of business; provided, however, that this provision shall not restrict the absolute freedom (as between Landlord and Tenant) of Tenant to determine its own selling prices nor shall it preclude the conduct of periodic, seasonal, promotional or clearance sales; (b) will not use or permit the use of any apparatus for sound and/or 'light reproduction or transmission including' loudspeakers, phonographs, radios or televisions, or of any musical instrument in such manner that the sounds so reproduced, transmitted or produced shall be audible beyond the interior of the Premises; will not distribute, or cause to be distributed, at the Shopping Center or in any part thereof any handbills or other advertising or notices; and will not conduct or permit any activities that might constitute a nuisance, or which are prurient or otherwise not generally considered appropriate in accordance with standards of operation for the Shopping Center established by Landlord; will not install any antennae or other communication equipment on the roof of Landlord's Building or anywhere on the exterior of the Premises; (c) will keep ail mechanical apparatus free of vibration and noise which may be transmitted beyond the confines of the Premises; will not cause or permit strong, unusual, offensive or objectionable sound, sights, odors, fumes, dust or vapors to emanate or be dispelled from the Premises; (d) will not load or permit the loading or unloading of merchandise, supplies or other property, nor ship, nor receive, outside the area and entrance designated therefor' by landlord from time to time; will not permit the parking or standing outside of said area of trucks, trailers, or other vehicles or equipment engaged in such loading or unloading in a manner which may interfere with the use of any Common Areas or any pedestrian or vehicular use and good regional shopping center practice; will use its hest 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 Cafe-CapitalCityMaB-FinalFinalFinal June 7, 2006 t Collins/JCR 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 Premises, without first obtaining Landlord's written approval of such painting, decoration or change; and will remove promptly upon order of Landlord any paint, decoration or change which has been applied to or installed upon the exterior or interior of the Premises without Landlord's written approval; (f) will keep the inside and outside of all glass in the doors and windows of the Premises clean and will replace any cracked or broken glass with glass of the same kind, size and quality, will maintain the Premises at its own expense in a clean, orderly and sanitary condition and free of insects, rodents, vermin, and other pests and will use an exterminator designated by Landlord and at times designated by Landlord; will not bum or permit undue accumulation of garbage, trash, rubbish and other refuse; will (subject to Section 6.04) remove the same from the Premises to compactors or other receptacles designated by Landlord, and will keep such refuse in proper containers in the interior of the Premises until so removed from the Premises; (g) will comply with all applicable federal, state and local environmental and other laws, rules, regulations, guidelines, judgments and orders and all recommendations of any public or private agency having authority over insurance rates which now or in the future enact requirements with respect to the use or occupancy of the Premises by Tenant, including, without limitations the requirements imposed by the Americans with Disabilities Act which imposes requirements relating to the design and use of the Premises and the requirements imposed by the Clean Air Act which imposes, among others, requirements relating to the venting, use of, and disposal of chlorofluorocarbons and other refrigerants (collectively the "Governmental Requirements"); will not use or permit the use of any portion of the Premises for any unlawful purpose; and will conduct its business in the Premises in all respects in a dignified manner and in accordance with high standards of store operation; (h) will provide, or cause to be provided all security within its Premises as it deems appropriate; (i) will also comply with and observe all rules and regulations established by Landlord from time to time in accordance with Section 6.05; (j) will not permit the use of any portion of the Premises for solicitations, demonstrations or any activities inconsistent with reasonable standards of a first class shopping mall; (k) will not use, or permit to be used, the malls or sidewalks adjacent to the Premises, or any other space outside of the Premises for the display or sale or offering for sale of any merchandise or for any other business, occupation or undertaking; (1) will provide or cause to be provided within the Premises, without cost or expense to Landlord, adequate lighting and security for its licensees, invitees and employees during such periods as the Premises are open for business; (m) will maintain at all times 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; (0) will within ninety (90) days before or after the fifth (5th) anniversary of the Rent Commencement Date at Tenant's sole cost and expense perform a cosmetic remodel to the Premises. Such remodeling shall include refinishing, renewing and/or replacing the floor coverings, wall coverings, lighting, ceiling, fixtures, furnishings, equipment and other trade fixtures if necessary at the Premises and, in Landlord's reasonable judgment, all other work necessary to put the Premises in a state of appearance and condition conforming to Landlord's then current standards for retail tenants of Landlord's Building. All of the provisions of this Lease which appty to Tenant's Work including, without limitation, those for 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, picketing, boycotts or hand billing at or about the Premises and the Mail Premises. Tenant further agrees that if, during the period of any work by or for Tenant in or about the Premises in connection with such work there is a strike, picketing, boycotting, hand billing or other activity objectionable to Landlord, Tenant shall remove or cause to be removed from the Premises and the Mall Premises all persons, to the extent not prohibited by law, until such strike, picketing, boycotting, hand billing or other activity ceases and the cause thereof is settled to Landlord's satisfaction; (q) will not, without obtaining Landlord's prior written approval, which approval may be withheld in Landlord's discretion, install any storage or propane tank, whether above or underground, at the Premises or in the Shopping Center and if Landlord shall consent to such installation, Tenant will comply with all applicable laws, regulations and underwriter requirements concerning the installation, operation, and closure of such tank. Upon termination of this Lease, Landlord shall have the option of requiring that Tenant, at Tenant's sole cost and expense, perform tests relating to the condition of such tank and/or remove any tank installed by Tenant and associated contaminated material. Tenant shall be deemed the owner and operator of any tank installed by Tenant. Tenant shall relocate such tank at Landlord's request and at Tenant's expense, to another location acceptable to Landlord; (r) will, if applicable, install and properly maintain a grease trap and either a "black iron duct", or other self- contained venting and exhaust system acceptable to Landlord. Such items shall be installed in a manner, of materials and at a location approved in advance by Landlord and shall, at Landlord's option, connect to trunk facilities, if any, supplied by Landlord for same; (s) will not use the plumbing facilities for any purpose other than that for which they were constructed and will not dispose of any damaging or injurious substance therein; (t) other than pay telephones and cigarette vending machines, will not install, or permit to be installed or operate any coin or token operated vending machine, game machine, pinball machine, pay lockers, pay toilets, scales, McGrath's Cafg-CapitalC"all-FinatFinalFinal June 7, 2006 1 Collins/JCR 15 amusement devices and machines for the sale of beverages, foods, candy or other commodities, except solely for use by Tenant's employees in non sales area and not to exceed collectively two (2) machines or other devices; and (u) will not store, display, rent or sell any audio or video cassettes. Section 7.04: TENANT'S USE OF ROOF, EXTERIOR WALLS, ETC. Tenant shall not, without having obtained the prior written consent of the Landlord, perform any work of any nature whatsoever to the roof, exterior walls or to any of the structural portions of Landlord's Building or the Premises or in areas reserved to Landlord or excluded from Tenant in the Store Design Criteria. Any damage to the Premises or any person or property occurring as a result of a breach of this provision shall be the sole responsibility, cost and expense of the Tenant. Notwithstanding Tenants rights set forth elsewhere in this Lease, landlord may erect additional stories or other structures over all or any part of the Premises, Landlord's Building and any other part of the Mall Premises. In connection with such erection, or otherwise, Landlord may relocate Tenant's equipment and may erect temporary scaffolds and other aids to such construction at Landlord's sole cost and expense. Section 7.05: OPERATION OF HVAC SYSTEM. Tenant agrees, during the hours the Premises is open for business, to control and/or operate as applicable the HVAC system serving the Premises regardless of whether such equipment was installed by Landlord or Tenant so that conditions inside the Premises are maintained within a range of 72 to 75 degrees Fahrenheit or within such range as may be prescribed by applicable governmental authorities so that heat, ventilation and cooled air are not drained from the Premises or the Enclosed Mall. Section 7.06: EMPLOYEE PARKING AREAS. Landlord may, from time to time, designate that particular portions of the Shopping Center parking areas (the "Employee Parking Areas") are to be used by Tenant and its employees, or other individuals working at or from the Premises. If Landlord does so, Tenant and its employees shall park their vehicles only in the Employee Parking Areas. Tenant shall furnish Landlord with a list of Tenants and employees' vehicle license numbers within fifteen (15) days after Tenant opens for business in the Premises, and at Landlord's request, the Tenant shall thereafter notify Landlord in writing of any addition, deletion or other change to or from such list within five (5) days after Landlord makes such request. Tenant shall notify each employee in writing of the provisions of this Section 7.06 prior to each employee commencing employment or work at or from the Premises. If Tenant or any of its employees do not park their vehicles in the Employee Parking Areas, Landlord may give Tenant notice of such violation. If Tenant does not cease such violation, or cause such violation by the employee to cease, as the case may be, within two (2) days after Landlord's notice of violation is given, Tenant shall pay to Landlord, as Additional Rent, an amount equal to Twenty Five Dollars ($25.00) per day per violating vehicle. For any subsequent violations, said Twenty Five Dollars ($25.00) per day per violating vehicle charge shall commence without the necessity of further notice, and Landlord shall, in addition, have the right to have the violating vehicles towed at 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 business which is similar to that of Tenant or which sells or displays, directly or indirectly, merchandise or other goods, or services, similar to those sold or offered or displayed by Tenant at or from the Premises and which operates under the same trade name as Tenant (the "Competing Store") within two (2) miles from the property line of the Shopping Center nearest to the Competing Store (the foregoing covenant being hereinafter called "Tenants Non-Competition Covenant"). "Affiliate of Tenant" means a proprietorship, corporation, partnership, unincorporated association or other person or entity "controlling", "controlled" by or under common "control" with Tenant. The words "controlling", "controlled" and "control" shall have the meanings given them under the Securities Exchange Act of 1934, as amended. If the Tenant's Non- Competition Covenant is violated, then, in addition to all other rights and remedies, Landlord shall have the right to add the "gross receipts of the Competing Store" (hereinafter defined) to the Gross Sales made by Tenant hereunder for the purpose of computing Percentage Rent. The phrase "gross receipts of the Competing Store" shall be determined by applying the definition of Gross Sales at Section 4.05 to transactions of the Competing Store. Tenant shall include the address and 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 or to the Premises which Landlord determines (in its reasonable judgment) to be in violation of the provisions of this Section 7.08. Tenant will keep the storefront sign and display windows in the Premises lighted during all periods that the Shopping Center is open to the public and for one-half hour after required business hours and for such other periods as may be reasonably required by rules and regulations established in accordance with Section 8.05. 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 Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 \ Collins/JCR 16 Criteria, conforms to the requirements of all governmental authorities and receives all necessary approvals and permits from such governmental authorities, and is approved by all tenants in the Shopping Center which have the right to disapprove or cause Landlord to disapprove, such supplemental exterior signage. ARTICLE 8: COMMON AREAS Section 8.01: USE OF COMMON AREAS. (a) Tenant and its employees and invitees are, except as otherwise specifically provided in this Lease, authorized, empowered and privileged during the Term to use the Common Areas for their respective intended purposes In common with other persons. Tenant's right to use any meeting room or auditorium, if any, in the Common Areas shall be subject to such schedules and payment of such fees or charges therefor as Landlord may from time to time adopt governing the use thereof. (b) Landlord shall at all times have the right to utilize the Common Areas including, without limitation, the Enclosed Mall for promotions, exhibits, carnival type shows, rides, outdoor shows, displays, automobile and other shows or events, the leasing or licensing of kiosks, push carts and food facilities, landscaping, seating areas, seasonal displays, decorative items, and any other use which, in Landlord's judgment, tends to attract customers to, or benefit the customers of the Shopping Center. Section 8.02: COMMON AREA MAINTENANCE SUM_ (a) The term "Common Area Maintenance Sum" (or the "CAM Sum") shall be charged and prorated in the manner hereinafter set forth and shall mean all sums incurred in a manner deemed by Landlord to be reasonable and appropriate and for the best interests of the Shopping Center in connection with the operation, repair and maintenance of the Common Areas and the Shopping Center (and any additions thereto), including, without limitation, the costs and expenses of: (i) 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: (ii) snow, ice, trash and garbage removal, pest control, and cleaning, painting, sweeping, striping and repaving all parking surfaces, services areas and other portions of the Common Areas; (iii) operation and/or maintenance of all heating, ventilating and air cooling and other utility systems, emergency water and sprinkler, security, life safety systems, pumping systems, electrical systems and all escalator and elevator systems and any other items, facilities, equipment, and systems fumished by Landlord as part of the Common Areas; (iv) premiums and other charges for insurance to the extent provided by Landlord, including without limitation, liability insurance for personal and bodily injury, death and property damage; insurance covering Landlord's Building and the Common Areas against fire and extended coverage perils; theft or casualties; workers' compensation; plate glass insurance for glass exclusively serving the Common Areas; boiler insurance (if carried); losses borne by Landlord as a result of deductibles 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 management staff [which includes the General Manager, Assistant Manager, secretaries, bookkeepers and accountants (regardless of where the aforesaid personnel are located)) together with the uniforms, payroll, payroll taxes and employee benefits of all such personnel; (xi) the expense of security personnel and equipment, including, without limitation, uniforms as well as transportation and surveillance equipment; (xii) all costs, charges, and expenses incurred by Landlord in connection with any change of any company providing electricity service, including, without limitation, maintenance, repair, installation, and service costs associated therewith; ()lll) 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 and/or standby fees or charges pertaining to same; (xiv) Landlord's supervisory charge in an amount equal to fifteen percent (15%) of the total aggregate cost of operating and maintaining the Common Areas, 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 Cafe-CapitalCiWWII-FinalFinalFinal June 7, 2006 1 Collins/JCR 17 (ii) depreciation (other than depreciation as above specified); and (iii) any utilities which are directly metered or submetered to tenants in Landlord's Building. (c) Notwithstanding anything contained in this Lease to the contrary, in calculating the "CAM Charge" (defined in Section 8.03), the CAM Charge may be based upon Landlord's estimates, which estimates and payments thereon shall be subject to adjustments in future billings to Tenant based on Landlord's actual cost, it being understood and agreed that in determining actual costs, Landlord in its sole discretion, will make allocations of certain items between the Enclosed Mall and other portions of the Shopping Center of which the Enclosed Mall is a part, which need not be based on relative size or use. (d) Landlord may cause any or all maintenance services for the Common Areas to be provided by an independent contractor or contractors or others and the costs therefor shall be included in the CAM Sum. Except as provided hereinabove, none of the costs for the original construction and installation of the Common Areas shall be included in the CAM Sum. (e) If Landlord from time to time acquires, or makes available, additional land or improvements for parking or other Common Area purposes, the CAM Sum shall also include all costs and expenses incurred by Landlord in connection with the operation or maintenance of said additional land and improvements. (f) The words "maintenance", "maintain" or "maintaining" as used in this Article 8 includes, without limitation, all repairs, replacements and other work and service of any type whatsoever. Section 8.03: CAM CHARGE. (a) Tenant shall pay to Landlord, as Additional Rent, Tenant's share of the CAM Sum in the manner set forth in Section 8.03(b) and (c) below. Tenant's share of the CAM Sum for each calendar year (the "CAM Charge") shall be in the following Annual Amounts and Monthly Amounts over the following Time Periods. For any Partial Year, the CAM Charge will be prorated. Time Period Annual Amount Monthly Amount Rent Commencement Date through the 60th month $24,100.00 $2,008.33 From the 61 st month through the end of the Term $26,510.00 $2,209.17 From the 1216 month through the 1801h month $29,161.00 $2,430.08 of the Term From the 181 u month through the 240"' month $32,077.10 $2,673.09 of the Term (b) Tenant shall pay Landlord on the Rent Commencement Date and on the first day of each calendar month in the Term thereafter Tenant's monthly payment of the CAM Charge. (c) Landlord may have heretofore elected to spread, and may hereafter elect to spread, the amount of any of the expenses of the CAM Sum over such period of years as Landlord shall determine by amortizing them over such periods instead of including suchexpenses entirely in the year in which expended or incurred, in which event, the annual amortization amount shall be deemed to be an expense incurred during each year of the amortization period, notwithstanding that such expenses may have been expended or incurred prior to the execution of this tease. Section 8.04: CHANGES BY LANDLORD. As between Landlord and Tenant, Landlord shall at all times have the right and privilege of determining the nature and extent of the Common Areas and of making such changes, rearrangement, additions or reductions therein and thereto from time to time which in its opinion are deemed to be desirable or which are made as a result of any federal, state or local environmental or other law, rule, regulation, guideline, judgment or order, including but not limited to, the location, relocation, enlargement, reduction or addition of driveways, entrances, exits, automobile parking spaces, employee and customer parking areas (if any), the direction and flow of traffic, installation of landscaped areas, and any and all other facilities of the Common Areas. Landlord (or others entitled to), may from time to time make alterations, renovations, reductions; or additions anywhere within Landlord's Building or to the Common Areas or other part of the Shopping Center or any lands or improvements added thereto, construct additional buildings or improvements on the Common Areas or elsewhere and make alterations thereto, build additional stories on any buildings, construct multi-level or elevated or underground parking facilities, and construct roof, walls, and any other improvements over, or in connection with any part of, or all of, the Common Areas in order to enclose same. Section 8.05: RULES AND REGULATIONS. Tenant agrees that Landlord may establish and from time to time change, alter and amend, and enforce against Tenant, such reasonable rules and regulations as Landlord may deem necessary or advisable for the proper and efficient use, operation and maintenance of the Common Areas, provided that all such rules and regulations affecting Tenant and its invitees and employees shall apply equally and without discriminatiop to substantially all of the retail tenants in Landlord's Building or substantially all retail tenants engaging, in certain acts or of a certain use. The rules and regulations herein provided for may include, but shalt not be limited to, the hours during which the Common Areas shall be open for use. McGrath's Cafa-CapitalCityMall-FinalFinalFinal June 7, 2006 \ Collins/JCR 18 Section 8.06: LANDLORD'S MAINTENANCE AND CONTROL. Landlord agrees to maintain and operate, or cause to be maintained and operated, the Common Areas in good and reasonable condition and manner. Landlord shall, as between Landlord and Tenant, at all times during the Term have the sole and exclusive control, management and direction of the Common Areas, and shall provide or cause to be provided, security in the Common Areas at a level determined by Landlord (and Tenant shall provide, or cause to be provided, adequate security within Tenant's Premises as Tenant deems appropriate). Landlord may at any time and from time to time during the Term exclude and restrain any person from use or occupancy of any of the Common Areas, excepting, however, Tenant and other tenants of Landlord and bona fide invitees of either who make use of said areas for their intended purposes and in accordance with the rules and regulations established by Landlord from time to time with respect thereto. The rights of Tenant in and to the Common Areas shall at all times be subject to the rights of others to use the same in common with Tenant, and it shall be the duty of Tenant to keep all of the Common Areas free and clear of any obstructions or interferences created or permitted by Tenant or resulting from Tenant's operation. Landlord may at any time and from time to time close all or any portion of the Common Areas to make repairs or changes, or to such extent as may, in the opinion of Landlord, be necessary to prevent a dedication thereof or the accrual of any rights to any person or to the public therein, to close temporarily any or all portions of the Common Areas and to do and perform such other acts in and to Common Areas as, in the exercise of good business judgment, Landlord shall determine to be advisable with a view to the improvement of the convenience and use thereof by occupants and tenants, their employees and invitees. Notwithstanding anything to the contrary set forth herein, if at any time Landlord in the exercise of its rights under this Section 8.06 materially and adversely affects access to, or visibility of, the Premises for more than ninety (90) business days, and Tenant's Gross Sales decrease by more than fifteen percent (15%) from the amount of such Gross Sales for the last ninety (90) day period immediately prior to such violation, Tenant's Minimum Rent shall abate and Tenant shall pay monthly within twenty (20) days after the end of each month, six percent (6%) of its monthly Gross Sales in lieu of Minimum Rent. Tenant's 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 9.04: 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 be deemed a member thereof and shall contribute to the same the amount which Tenant immediately prior to such termination was required to contribute to the merchant's association. Further, Tenant does hereby irrevocably assign to Landlord all of Tenant's voting rights contained in any bylaw or other similar document forming or governing the administration of any such merchant's association. ARTICLE 10: CONSTRUCTION WORK Section 10.01: APPROVALS AND STANDARDS. Tenant shall not perform any construction or make any alterations or changes in or to the Premises at any time during the Term (herein sometimes collectively called "Construction Work") without Landlord's prior written consent. In no event shall Tenant make or cause to be made any penetration through any roof, floor or exterior or corridor 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 prepared by a licensed architect, or engineer and approved in writing by the Landlord before the commencement of the Construction Work, (b) all necessary governmental approvals and permits, which approvals and permits Tenant shall obtain at its sole expense, and (c) all applicable laws, rules, regulations and building codes relating thereto. All Construction Work shall conform to Landlord's` Store Design Criteria and shall be performed in a good and workmanlike manner and diligently prosecuted to completion to the end that the Premises shall at all times be a complete unit except during the period of the Construction Work. Any Construction Work performed by Tenant without Landlord's consent shall be returned to its original condition at Tenant's expense upon request by Landlord. Tenant shall perform any Construction Work in such a 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-CapitalCityMall-FinalFinalFinal June 7, 2006 1 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 11: INDEMNITY AND INSURANCE Section 11.01: TENANT'S INSURANCE. (a) Tenant further covenants and agrees that from and after the date of delivery of the Premises from Landlord to Tenant, Tenant will carry and maintain, at its sole cost and expense, the following types of insurance, in the amounts specified and in the form hereinafter provided for: (i) Commercial General Liability Insurance. Commercial general liability insurance covering the Premises and Tenant's use thereof against claims for "personal and advertising injury" and "bodily injury" or death, "property damage" and "product/completed operations" liability (as the aforesaid terms are defined in such policy) occurring upon, in or about the Premises and Tenant's activities in the Common Area, such insurance to afford protection to the limit of not less than $3,000,000 regardless of the number of persons claiming injuries or damages arising out of any one occurrence. The insurance coverage required under this Section 11.01(a)(i) shalt, in addition, extend to any liability of Tenant arising out of the indemnities provided for in Section 11.03, and for liability relating to the sale or distribution of food and/or alcoholic beverages. Therefore, such policy shall not contain any exclusion for contractual liability coverage for any of the foregoing coverages. The general aggregate limits under the liability insurance policy or policies must apply separately to the Premises and to Tenant's use thereof. The certificate of insurance evidencing the commercial general liability form of policies shall specify on the face thereof that the limits of such policies apply separately to the Premises. (ii) Boilers. Boiler and machinery insurance in adequate amounts on all fired objects and other fired pressure vessels and systems serving the Premises (if any); and if the said objects and the damage that may be caused by them or result from them are not covered by Tenant's 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 10, in an amount not less than one hundred percent (100%) of their full replacement cost from time to time during the Term, providing special form coverage, including but not limited to, protection against the perils included with the standard state form of fire and broad form extended coverage insurance policy, together with insurance against sprinkler damage, vandalism and malicious mischief. Any policy proceeds from such insurance shall be held in trust by Tenant's insurance company for the repair, reconstruction and restoration or replacement of the property damaged or destroyed unless this Lease shall cease and terminate under the provisions of Article 12. (iv) Workers' Compensation And Employer's Liability. Workers' Compensation and Employers Liability insurance affording statutory coverage and containing statutory limits with the Employers Liability portion thereof to have minimum limits of $1,000,000.00. (v) Business Interruption Insurance. Business Interruption Insurance equal to not less than fifty percent (50%) of the estimated gross earnings (as defined in the standard state form of business interruption insurance policy) of Tenant at the Premises which insurance shall be issued on an "all risks" basis (or its equivalent). (b) All policies of insurance provided for in Section 11.01(a) shall be issued by insurance companies with a financial rating of not less than A VII as rated in the most current available "Best's Insurance Reports", and qualified to do business inthe state in which Landlord's Building is located. Tenant's obligation to provide the insurance coverage speed 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 11.01(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-CapitaiCityMall-FinalFinalFinal June 7, 2006 1 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. (a) Landlord shall at all times during the Term carry and maintain the following types of insurance in the amounts specified and in the form hereinafter provided for: (i) Commercial General Liability insurance. Commercial general liability insurance against claims for property damage and bodily injury or death, such insurance to afford protection to the limit of not less than $5,000,000 in respect to property damage, injury or death to any number of persons arising out of any one occurrence. (ii) Landlord's Real and Personal Property. Insurance covering the Landlord's Building [exclusive of any tenant improvements and betterments and property required to be insured by Tenant pursuant to Section 11.01(a)(iii)) in an amount not less than one hundred percent (100%) of full replacement cost (exclusive of the cost of excavations, foundations and footings), from time to time during the Term, providing protection against perils included within the standard state form of special form coverage insurance policy, together with insurance against sprinkler damage, vandalism and malicious mischief, and such other risks as Landlord may from time to time determine and with any such deductibles as Landlord may from time to time determine. (iii) Rent Insurance. Rent insurance with respect to the premises of the tenants in the Shopping Center if available at a cost which Landlord in its sole judgment deems reasonable, against loss of rents in an aggregate amount equal to not more than twenty-four (24) times the sum of (i) the monthly requirement of Minimum Rent of such tenants, plus (ii) the average monthly amount estimated from time to time by Landlord to be payable by such tenants as Percentage Rent and as Additional Rent pursuant to their leases. (b) Any insurance provided for in Section 11.02(a) may be maintained by means of a policy or policies of blanket insurance, covering additional items or locations or insureds provided that the requirements of Section 11.02(a) are otherwise satisfied. (c) Tenant shall have no rights in any policy or policies maintained by Landlord and shall not be entitled to be named an insured thereunder, by reason of payment, as part of the CAM Sum of its share of Landlord's premiums for the insurance provided for in this Section 11.02 or otherwise. Section 11.03: INDEMNIFICATION BY TENANT. 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 or omission of Tenant, its agents, contractors, servants, employees or invitees, regardless of where occurring. Tenant further agrees that the obligation to defend Landlord and Agent continues regardless of allegations of negligence or other fault on 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 five 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 Cafa-CapitalCityMall-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 will contravene Landlord's policies insuring against loss or damage by fire or other hazards, or which will prevent Landlord from procuring such policies in companies acceptable to Landlord at regular rates or which will in any way cause an increase in the insurance rates for any portion of the Shopping Center. If Tenant violates any prohibition provided for in the first sentence of this Section 11.06, Landlord may, without notice to Tenant, correct the same at Tenant's expense. Tenant shall pay to Landlord as Additional Rent forthwith upon demand the amount of any increase in the premiums for insurance resulting from any violation of the first sentence of this Section 11.06, even if Landlord shall have consented to the doing of or the keeping of anything on the Premises which constituted such a violation (but payment of such Additional Rent shall not entitle Tenant to violate the provisions of the first sentence of this Section 11.06). Section 11.07: LIMIT OF LANDLORD'S RESPONSIBILITY. Landlord shall not be responsible or liable to Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying space adjoining the Premises or any other part of the Shopping Center or Landlord's Building, or for any loss or damage resulting to the Tenant or its property from bursting, stoppage or leaking of water, gas, sewer or steam pipes or other utility lines or for any damage or loss of property within the Premises from any cause whatsoever. Such limitation of responsibility and liability shall not, however, apply to Landlord's willful acts or negligent omissions, except to the extent the same are waived or released by Tenant pursuant to Sections 11.03 or 11.04. ARTICLE 12: DAMAGE OR DESTRUCTION Section 12.01: LANDLORD'S DUTY TO RECONSTRUCT. In the event the Landlord's Building is damaged or destroyed by any of the risks referred to in Section 11.02(a)(ii) against which Landlord is obligated to procure insurance, Landlord shall (subject to being able to obtain all necessary permits and approvals therefor, including without limitation permits and approvals required from any agency or body administering environmental laws, rules or regulations), within one hundred twenty (120) days after such damage or destruction (unless Landlord terminates this Lease pursuant to Section 12.03), commence to: (a) repair or reconstruct Landlord's Building and (b) repair or reconstruct the structural floor 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(a)(iii), 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 permits and approvals therefor, including without limitation permits and approvals required from any agency or body administering environmental laws, rules and regulations), within fifteen (15) 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 (il) 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)(ii); 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 of 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 Tenants 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 Caf6-CapiUCityMaU-FinatFinalFinal June 7, 2006 1 Celllns/JCR 22 applicable Break Point and Partial Year Break Point (as the case may be) shall be reduced in direct proportion to the percentage of the GLA in the Premises which is rendered unfit for that period from the date the Premises are so rendered unfit until the earlier of sixty (60) days after Landlord re-delivers possession of the Premises to Tenant or the date Tenant reopens for business. ARTICLE 13: MAINTENANCE OF PREMISES Section 13.01: LANDLORD'S DUTY TO MAINTAIN STRUCTURE. Landlord will keep the roof, exterior face of service corridor walls, structural columns and structural floor or floors which enclose the Premises (excluding floor coverings, such as carpeting, terrazzo and other special flooring, walls installed at the request of Tenant, doors, windows and glass) in good repair. Notwithstanding the foregoing provisions of this Section 13.01, Landlord shall not in any way be liable to Tenant unless Tenant shall have given Landlord written notice of the necessity for such repairs and Landlord fails to commence making such repairs within a reasonable period thereafter, and provided that any damage necessitating such repairs shall not have been caused by the omission, negligence or willful act of Tenant, its concessionaires, invitees, officers, employees, licensees or contractors or by the failure of Tenant to perform any of its obligations under this Lease (in either of which events Tenant shall be responsible therefor) or have been caused to any of the items Tenant is required to insure pursuant to Article 11. Landlord shall be under no liability 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 may be expressly set forth in this Lease. Section 13.02: TENANT'S DUTY TO MAINTAIN PREMISES. Tenant will at all times, from and after delivery of possession of the Premises to Tenant, at its own cost and expense, maintain and make all needed repairs, and do all other work to or for the Premises and every part thereof to render the same in good and tenantable condition. Tenant's obligation under this Section 13.02 shall include, but not be limited to, repairing, replacing and otherwise maintaining items as are required by any governmental agency having jurisdiction thereof (whether the same is ordinary or extraordinary, foreseen or unforeseen), walls (other than the exterior face of service corridor walls), ceilings, plate glass, utility meters, pipes and conduits outside the Premises which are installed by or demised to Tenant or which exclusively serve the Premises, all fixtures, heating, ventilating and air conditioning equipment installed by or demised to or used solely by Tenant, N any (whether such heating ventilating and air conditioning equipment is located inside the Premises, between the ceiling and the roof or on the roof of Landlord's Building), sprinkler equipment and other equipment within the Premises, the storefront or storefronts, 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 detection or suppression system in or serving the Premises without Landlord's prior approval. Tenant shall permit no waste, damage or injury to the Premises and Tenant shall Initiate and carry out a program of regular repair and other maintenance of the Premises, including the painting or refinishing of all areas of the interior and the storefront as approved by Landlord, so as to impede, to the extent possible, deterioration by ordinary wear and tear and to keep the same in attractive condition. Tenant will not overload the electrical wiring or other systems serving the Premises or within the Premises, and will install at its expense, but only after obtaining Landlord's written approval, any additional electrical wiring or other items which may be required in connection with Tenant's apparatus. Section 13.03: RIGHT TO ACCESS TO THE PREMISES. Landlord and its authorized representative may enter the Premises, 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 it constitute a waiver of Tenant's default in failing to do the same. In the event Landlord performs or causes any such work to be performed, Tenant shall pay the cost thereof to Landlord as Additional Rent upon demand therefor. In addition, Landlord may Install, use, repair or replace any and all materials, tools and equipment, and pipes, ducts, conduits, columns, foundations, footings, wires and other mechanical equipment serving other portions, tenants and occupants of Landlord's Building in, through, under or above the Premises that Landlord deems desirable therefor, without the same constituting an actual or constructive eviction of Tenant. Landlord may also enter thePremises at all times during usual business hours for the purpose of showing the Premises to prospective purchasers, mortgagees and tenants. No exercise by Landlord of any rights provided in Section 13.01 or 13.03 shall entitle Tenant to any damage for any inconvenience, disturbance, loss of business or other 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 Caf6-CapitalCityMall-FinalFinalFinat June 7, 2006 l Collins1JCR 23 not permanently affixed to the Premises shall remain the property of Tenant. Tenant shall have the right, provided Tenant is not in default under this Lease, at any time and from time to time during the Term, to remove any and all of its personal property which it may have stored or installed in the Premises. If Tenant is in default under this Lease, Landlord shall have the right to take exclusive possession of such property and to use such property without rent or charge, and Landlord, whether or not it takes possession of such property, shall have the benefit of any lien thereon permitted under the laws of the state in which Landlord's Building is located and, if such possession is taken or such lien is asserted by Landlord in any manner, including but not limited to operation of law, Tenant shall not remove or permit the removal of said trade fixtures, signs or other personal property until such possession is relinquished or the lien is removed, as the case may be. Nothing in this Article shalt be deemed or construed to permit or allow Tenant to remove any of such personal property prior to the end of the Term without the immediate replacement thereof with similar personal property of comparable or better quality, or otherwise render the Premises unsuitable for the continued conduct of Tenant's permitted use thereof. Tenant at its expense shall immediately repair and otherwise make good any damage occasioned to the Premises or Shopping Center by reason of installation or removal of any such personal property unless such damage is caused by Landlord pursuant to Section 13.03 and if Tenant fails to remove such items from the Premises prior to such expiration or termination, or if this Lease is terminated by Landlord and Tenant fails to remove such items from the Premises prior to the effective date of such termination, then in any such event all such personal property shall thereupon become the property of Landlord, without further act by either party hereto, unless Landlord elects to require all or a portion of such items to be removed by Tenant in which case Tenant shall promptly remove the items designated by Landlord and restore the Premises to its prior condition at Tenant's expense. Section 14.02: IMPROVEMENTS TO PREMISES. All improvements made to the Premises by Tenant, including, but not limited to, the items furnished pursuant to Tenant's Work, alterations, changes and additions by Tenant, light fixtures, floor coverings and partitions, heating, ventilating and air-conditioning equipment, mechanical and plumbing equipment, but excluding trade fixtures and signs and other personal property specified in Section 14.01, shall become the property of Landlord upon installation. However, Landlord may designate by written notice to Tenant, prior to Tenant's making such alterations, those alterations, changes, and additions made in the Premises after the Rent Commencement Date which shall be removed by Tenant at the expiration or termination of this Lease, in which event Tenant shall at Tenant's sole cost and expense promptly remove the same and repair and otherwise make good the damage to the Premises caused by such removal or by the installation of such alterations, changes or additions. ARTICLE 15: ASSIGNMENT AND SUBLETTING Section 15.01: PROHIBITED. Tenant shall not permit anyone other than Tenant to occupy the Premises or any part thereof and shall not transfer, assign, sublet, enter into license or concession or other occupancy or use agreements or mortgage or hypothecate this Lease or the Tenant's interest in and to the Lease or the Premises or any part thereof (herein collectively referred to as "Transfer") without first obtaining in each and every instance the prior written consent of Landlord which Landlord 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 written notice (the "Request Notice") requesting Landlord's consent to the proposed Transfer at least thirty (30) days prior to the date on which, with Landlord's prior written consent, the Transfer would be effective. The Request Notice shall contain, without limitation, at least: (1), the full identification of the proposed transferee; (ii) the most recent financial statements and other evidence of the transferee's financial responsibility and business performance; (iii) the 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, than 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 the 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 defray Landlord's administrative costs, overhead and counsel fees in connection with the consideration, review and document preparation of any proposed assignment or subletting, such sum to be paid at the time Tenant delivers the 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 unreasonable 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 by a 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 Caf6-CapitalCityMall-FinalFinalFinal June 7, 2006 1 Collins/JCR 24 W 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 Tenant's interest in this Lease become an asset in any such proceedings; or (1) notwithstanding the Tenant's obligation to pay Minimum Rent and/or Percentage Rent and/or Additional Rent as of the first day of each month during the Term, in the event that an insolvency, bankruptcy or similar proceeding is filed by or against the Tenant or any Guarantor, the Tenant shall be obligated to pay all such Minimum Rent and/or Percentage Rent and/or Additional Rent on a ratable basis from the date of the commencement of any such proceeding through the end of the month in which such proceeding is commenced. Section 16.02: LANDLORD'S REMEDIES. (a) Landlord may treat any Event of Default as a material breach of this Lease. Landlord's failure to insist upon strict performance of any covenant, term or condition of this Lease or to exercise any right or remedy it has herein shall not be deemed a waiver or relinquishment for the future of such performance, right or remedy. In addition to any and all other rights or remedies of Landlord in this Lease or at law or in equity provided, Landlord shall have the following rights and remedies if there shall occur any Event of Default none of which shall be construed as an election to forego any of the other remedies then or in the future: (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 Rentand for damages without entering into possession of the Premises or terminating this Lease; and/or (iv) to terminate T1 t s rht of possession of the Premises ,by, sytru.rpdirls or otherwisa? ud+thout terminating this Lease* In the eent tyf"any re-entry and termination of possession, Landlord shall have the right but not the obligation to remove any personal property fromttle Premises and either such property as abandoned, or- at. Landlord's option, place the same in storage at a public warehouse at the, sole cost, expense and risk of the Tenant; and/or (v) to enter the Premises and without fu dprnand or notice proceed to distress and sale of the goods, chattels, personal a her ehts thare U aQlo }avy the Rent, anti-'t'enant sl>aH pay all cosfs and vc off+oers':tnlnmissRu?s, in"i watclh wages s chargeable by Landlord, and further including chargesw which Landlord may impose by statute as commissions to the fgft, otter Person nlmkbV the levy, and in 'such"s`' ?t per•charges4sh2 attach and Uecerne,part of the claim of., ahorrd 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 Judament - 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 prothonotary, clerk of court, attorney of any court of record and/or Landlord (as well as someone acting for Landlord) in any and all actions commenced against Tenant for recovery of the Rent and/or other amounts to be paid to Landlord by Tenant to appear for Tenant, 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(x), 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 Jud ent - Posisgsislion. Tenant covenants and agrees that if there is an Event of Default or this Lease is terminated or the Term or nyextensions 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 (iii) the provisions of Section 16.02(d) are incorporated herein by this reference thereto. McGrath's Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 \ Collins/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 verified by Landlord or someone acting for Landlord to be a true and correct copy of this Lease (and such copy shall be conclusively presumed to be true and correct by virtue of such verification), then 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: W The benefit of all laws, now or hereinafter in force, exempting any goods in the Premises or elsewhere from distraint, levy or sale in any legal proceedings taken by Landlord to enforce any rights under this Lease. (ii) The benefit of all laws now made or which may hereafter be made regarding any limitation as to the goods upon which, or the time within which, distress is to be made after the removal of goods, and Tenant further relieves Landlord of the obligation of proving or identifying such goods; it being the purpose and intent of this provision that all goods of Tenant whether upon the Premises or not, shall be liable to distress for rent. (iii) The 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. (iv) The right to delay execution on any real estate that may be levied upon to collect any amount which may become due under the terms and conditions of this Lease and any right to have the same appraised. The 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 circumstances, or any other notice required or otherwise provided by statute as a condition to the commencement of summary proceedings or an action for possession or to the termination of this Lease or any retaking of possession, Tenant hereby agreeing that the respective notice periods provided for in this Lease shall be sufficient in any such case. Section 16.03: DAMAGES. (a) If Landlord elects to terminate Tenant's right to possession under this Lease, but not to terminate this Lease, Landlord may relet the Premises (or any part thereof) for the account of Tenant at such rentals and upon such terms and conditions as Landlord shall deem appropriate (which maybe less than or exceed the balance of the Term), and to the extent Landlord receives the Rent therefor, Landlord shall apply the same first to the payment of such expenses as Landlord may have incurred in recovering possession of the Premises (including, without limitation, legal expenses and 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 "Costs 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 shalt 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 shalt not be liable for, nor shall Tenant's obligations hereunder be diminished by reason of any failure by Landlord to relet the Premises or any failure by Landlord to collect any sums due upon such reletting. Tenant shall not be entitled to any Rent received by Landlord in excess of Rent provided for in this Lease. Landlord may file suit to recover any sums falling due under the terms of this subsection from time to time, and no suitor recovery of any portion due Landlord hereunder shall be a defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Landlord. Notwithstanding anything set forth in Section 1e.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 shaft have the right to immiedW* recover againal Tenant as damages for loss: of the bargain, and not as a penalty, the excess (if any), as determined by Landlord, of (1) the present value of the projected Rent paydbte by'Tenant d T this Lease_ (as determined by,l aridjord_ 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; increasiW, aniidal(y on the first of each year after such.calendar year at the rate of six percent (6%) per annum eompgunded),that d have accrued for the balance of,the term plus any other amount necessary to compensate Landlord for,all detaFiments proximately caused by. Tenant's failure to perform its obligations under this Lease, inducting -reasonably attorneys -fees 4nd ? cam at:the Default Rate (hereafter defined), less (ii) the 4hen present fair rnertcett?etifal value of the Premises or e a ai nceAOf the Term as reas6dWy 4e1ermfn2d byLandtoid, taking"into account" wpong ~ lhhigs, the condition of'fhe lyrerPiises, market condRloris 666 the period of time the Prentisps. may remaiq vacant befeae Landlord is able to relet the same to a suitabid replacement tenarit, and the Costs of R nb deffhi above) that Landlord may incur in order to enter into a replacement lease ("Benefit of the Bargain Damages"). McGrath's Cafd-CapitalCityMall-FinalFinalFinal June 7, 2006 \ 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. (c) 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 any of its obligations under this Lease in a manner reasonably satisfactory to Landlord, Landlord shall have the right, but not the obligation, upon giving Tenant at least three (3) days prior written notice of its election to do so (in the event of any emergency no prior notice shall be required) to perform such obligations on behalf of and for the account of Tenant and to take all such action to perform such obligations. In such event, Landlord's costs and expenses incurred therein shall be paid for by Tenant as Additional Rent, forthwith, upon demand therefor, with interest thereon from the date Landlord performs such work at the Default Rate. The performance by Landlord of any such obligation shall not constitute a release or waiver of Tenant therefrom. Section 16.05: LEGAL EXPENSES. (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 (ii) a component of any cure claim 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 if Landlord fails to perform any of its obligations hereunder and said failure continues for a period of thirty (30) days after written notice thereof from Tenant to Landlord (unless such failure cannot reasonably be cured within thirty (30) days and landlord shall have commenced to cure said failure within said thirty (30) days and continues diligently to pursue the curing of the same). If Landlord shall be in default under this Lease and, if, 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 shall not be liable for any deficiency. In no event shall Tenant have the right to levy execution against any property of Landlord other than Landlord's right, title and interest in the Shopping Center as hereinbefore expressly provided. No default by Landlord under this Lease shall give Tenant the right to terminate this Lease. Section 17.02: TRANSFER OF LANDLORD'S INTEREST. In the event of the sale or other transfer of Landlord's right, title and interest in the Premises or the Shopping Center (except in the case of a sale4easeback financing transaction in which Landlord is the lessee), Landlord shall transfer and assign to such purchaser or transferee any portion of the Security Deposit which may then be held by Landlord pursuant to Section 2.02 of this Lease, and Landlord thereupon and without further act by either party hereto shall be released from all liability and obligations hereunder derived from this Lease arising out of any act, occurrence or omission relating to the Premises or this Lease 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 because of any sale or transfer (including without limitation any sale-leaseback) by Landlord or its grantees, successors or assigns. Neither Landlord's mortgagee (or its designee) nor the purchaser at a foreclosure sale shall be liable to Tenant for the return of Tenant's Security Deposit unless and until Landlord actually delivers the Security Deposit to such mortgagee or purchaser or their designee. ARTICLE 18: SUBORDINATION AND ATTORNMENT Section 18.01: SUBORDINATION OF LEASE. Tenant agrees that, except as hereinafter provided, this Lease is, and shall always be, subject and subordinate to any lease wherein Landlord is the lessee and to the lien of any or all mortgages or deeds of trust, regardless of whether such lease, mortgages or deeds of trust now exist or may hereafter be created with regard to all or any part of the Shopping Center, and to any and all advances to be made thereunder, and to the interest 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 tease, mortgage or deed of trust. McGrath's Caf6-CapitalCityMall-FinalFinalFinal June 7, 2006 1 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 of trust referred to in Section 18.01 covering the Premises or in the event of the termination of any lease referred to in Section 18.01 wherein Landlord is the lessee, Tenant, upon the purchaser or lessor's request, shall attorn to and recognize the purchaser or Landlord's lessor as Landlord under this Lease. Section 18.03: INSTRUMENTS TO CARRY OUT INTENT. Tenant agrees that, upon the request of Landlord, or any such lessor, mortgagee or trustee, Tenant shall execute and deliver whatever instruments may be required for such purposes and to carry out the intent of this Article 18, and in the event Tenant fails to do so within fifteen (15) days after demand in writing, Tenant shall 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 conceming 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: TENANT'S 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 Cafa-CapitalCRyMall-FinalFinalFinal June 7, 2006 1 Coifins/JCR 29 ARTICLE 22: CONDEMNATION Section 22.01: ALL OF PREMISES TAKEN. If the whole of the Premises shall be taken or condemned either permanently or temporarily for any public or quasi-public use or purpose by any competent authority in appropriation proceedings or by any right of eminent domain or by agreement or conveyance in lieu thereof (each being hereinafter referred to as "Condemnation"), this Lease shall terminate as of the day possession shall be taken by such 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 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 on of Tenant's business, then in either event Landlord or Tenant shall each have the right to terminate this Lease upon notice in writing to the other party within ninety (90) days after possession is taken by such Condemnation- If this Lease is so terminated, it shall terminate as of the 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 in advance for a period subsequent to the date of the taking of possession. If this Lease is not so terminated, it shall terminate only with respect to the parts of the Premises so taken as of the day of possession shall be taken by such authority, and Tenant shall pay Rent up to that day with a proportionate refund by Landlord of any Rent as may have been paid for a period subsequent to the date of such taking and, thereafter, the Rent and the applicable Break Point shall be reduced in direct proportion to the amount of GLA of the Premises taken and Landlord agrees, at Landlord's cost and expense, as soon as reasonably possible to restore the Premises on the land remaining to a complete unit of similar quality and character as existed prior to such appropriation or taking (to the extent feasible); provided that Landlord shall not be required to expend more on such restoration than an amount equal to the condemnation award received by Landlord (less all expenses, costs, legal fees and court costs incurred by Landlord in connection with such award). Section 22.03: SHOPPING CENTER TAKEN. If any part of the Shopping Center is taken by Condemnation so as to render, in Landlord's judgment, the remainder unsuitable for use as an enclosed mall shopping center, Landlord shall have the right to terminate this Lease upon notice in writing to Tenant within one hundred twenty (120) days after possession is taken by such Condemnation. If Landlord so terminates this Lease, it shall terminate as 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 any way diminish the compensation otherwise available to Landlord. ARTICLE' 23: MISCELLANEOUS Section 23.01: INTERPRETATION. (a) The captions, table of contents and index of defined terms appearing in this Lease are inserted only as a matter of convenience and in no way amplify, define, limit, construe, or describe the scope or intent of such Sections of this Lease nor in any way affect this Lease. (b) If more than one person or corporation is named as Landlord or Tenant in this Lease and executes the same as such, or becomes Landlord or Tenant, then and in such event, the words "Landlord" or "Tenant" wherever used in this Lease are intended to refer to all such persons or corporations, and the liability of such persons or corporations for compliance with and performance of all the terms, covenants and provisions of this Lease shall be joint and several. (c) The neuter, feminine or masculine pronoun when used herein shall each include each of the other genders and the use of the singular shall include the plural (d) The parties hereto agree that all the provisions of this Lease are to be construed as covenants and agreements as though the words importing such covenants and agreements were used in each separate provision hereof. Furthermore, each covenant, agreement, obligation and other provision contained in this Lease is, and shall be deemed and construed as a separate and independent covenant of the party bound by, undertaking or make the same, and not dependent on any other provision of this Lease unless expressly so provided. (e) Although the provisions of this Lease were drawn by Landlord, this Lease shall not be construed for or against Landlord or Tenant, but this Lease shall be interpreted in accordance with the general tenor of the language in an effort to reach the intended result. McGrath's Cafe-CapdalCityMall-FinalFinalFinal 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 other in accordance with this Section and received or refused by the addressee. Any notice by the Landlord may be given on its behalf by Agent or by an attorney for Landlord or Agent. Any notice properly sent to Tenant shall be deemed effective whether or not a copy is sent to the address designated in the Fundamental Lease Provisions to receive a copy of such notice. Section 23.04: SUCCESSORS. This Lease and the covenants and conditions herein contained shall inure to the benefit of and be binding upon (subject to Article 17) Landlord, its successors and assigns, and shall be binding upon Tenant, its heirs, successors and assigns and shall inure to the benefit of Tenant and only such assigns of Tenant to whom the assignment by Tenant has been consented to by Landlord in writing. Nothing in this Section 23.04 shall be deemed to require Landlord to give any such consent. All of Tenant's obligations during the Term pursuant to Section 4.05, 4.06, 4.07, 5.01, 5.02, 7.03, 8.03, 11.03 and 23.17 shall survive the expiration or earlier termination of this Lease. Section 23.05: BROKER'S COMMISSION. Tenant warrants that, except for Agent, it has dealt with no broker in connection with this Lease, and agrees to and shall defend, indemnify and save Landlord harmless from all claims, actions, damages, costs and expenses and liability whatsoever, including reasonable attorneys' fees, that may arise from any claim by or through Tenant for a commission, finders or like fee in connection with this Lease. Landlord shall pay the fee or commission due Agent in connection with this Lease. Section 23.06: UNAVOIDABLE DELAYS. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, inability to procure labor or materials, failure of power, restrictive governmental taws or regulations, riots, insurrection, war (whether actual or threatened), lack of access to the Shopping Center due to evacuation; damage or governmental order, fire or other casualty or other reason of a similar or dissimilar nature beyond the reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act, but not Tenant's obligation to pay Rent, shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. During Tenant's Construction Period the provisions of this Section 23.06 shall not operate to excuse Tenant from completing construction of the Premises within Tenanrs Construction Period unless Tenant gives written notice of the delaying event to Landlord within ten (10) days of the occurrence of such delaying event. Such written notice shall specify the nature of the delaying event and the number of days of delay claimed to result therefrom- Tenant's Construction Period shall be extended for a period equivalent to the period of actual delay. After the Rent Commencement Date the provisions of this Section 23.06 shall not excuse Tenant from the prompt payment of Rent and all other sums due by Tenant under this Lease and such delay shall not extend the 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 the provision invalid and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. If any term or provision, or any portion thereof, of this Lease, or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the 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 (1) this Lease contains no restrictive covenants or exclusives in favor of Tenant; (it) this Lease shall not be deemed or interpreted to contain, by implication or otherwise, any warranty, representation or agreement on the part of Landlord that any department store or regional or national chain store or any other merchant shall open for business or occupy or continue to occupy any premises in or adjoining the Shopping Center during the Term or any part thereof or that Tenant shall generate a certain amount of Gross Sales or that any reimbursable amount payable by Tenant shall be any specific amount, and Tenant hereby expressly waives all claims with respect thereto and acknowledges that Tenant is not relying on any such warranty, McGrath's Cafe-CapitalCityMall-FinalFinalFinal 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 balance of the Term or any renewals or extension thereof, Landlord may expand, renovate, remerchandise or otherwise change the size or configuration of the Shopping Center or Landlord's Building and in connection therewith Landlord may require that Tenant surrender possession of all or a portion of the Premises either temporarily or permanently. Accordingly, Landlord reserves the right in such event, in Landlord's sole and absolute discretion, to either (i) offer to amend this Lease to (a) make changes resulting from any alteration in Tenant's GLA resulting from an alteration in the size or shape of the Premises and/or (b) relocate Tenant at Landlord's expense to other comparable premises within the Shopping Center having an exterior location and containing approximately the same GLA as the Premises on the same terms and conditions as those contained in this Lease, either 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 or reconfiguration will occur. Landlord shall exercise its right set forth in this Section upon prior written notice to Tenant ("Landlord's Notice") which shall, include the proposed lease amendment. Any proposed amendment to the Lease shall afford Tenant at least sixty (60) days after the date of Landlord's Notice before Tenant shall be required to surrender possession of any portion of the Premises and/or relocate. In the event Tenant desires to execute such amendment, it shall do so within fifteen (15) days following its receipt of Landlord's Notice and if Tenant fails to do so, Landlord shall have the further right at any time thereafter to terminate this Lease in exchange for paying Tenant an amount equal to the unamortized net cost to Tenant of its leasehold improvements in the Premises, which unamortized net cost shall be calculated using a straight line amortization schedule and an amortization period equal to the Rent Term plus any previously exercised renewal options 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 the Shopping Center referred to in this Section will be performed by Landlord at its sole cost and expense including, if Tenant elects to execute the lease amendment referred to above which provides for a permanent relocation of the Premises, the construction of improvements to any relocated premises designated by Landlord such that such relocated premises will be comparable in finish to the Premises demised hereby as they existed immediately prior to Tenant's vacating the same. In the event Tenant is required to temporarily relocate, Tenant shall accept the relocated premises "as is" and Landlord shall not be required to perform any work therein. In addition, Landlord will reimburse Tenant for its reasonable and substantiated expenses incurred in moving from the Premises originally demised hereby to the relocated premises (and returning to the original Premises, if applicable) which reimbursement shall be made within forty-five (45) 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 in which Landlord's Building is located shall govern the validity, performance and enforcement of this Lease. If either party institutes legal suit or action for enforcement of any obligation contained herein, it is agreed that venue for such suit or action shall be in the state in which the Premises are located. Section 23.11: WAIVER. (a) The waiver by Landlord of any term, covenant, agreement or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other terms, covenant, agreement or condition herein contained. The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant, agreement or condition of this Lease, other than the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such Rent. No covenant, term, agreement or condition of this Lease shall be deemed to have been waived by Landlord, 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 Rent or pursue any other right and remedy provided for in this Lease or available at law or In equity. If Landlord shall direct Tenant to pay Rent to a "lockbox" or other depository whereby checks issued in payment of Rent are initially cashed or deposited by a person or entity other than Landlord (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 Caf6-CapitalCityMall-FinalFinatFinal June 7, 2006 1 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 balance of such rent or pursue any other remedy provided in this Lease, at law or in equity. Nothing contained in the immediately preceding sentence shall be construed to place Tenant in default of Tenants obligation to pay Rent if and for so long as Tenant shall timely pay the Rent required pursuant to this Lease in the manner designated by Landlord. Section 23.13: CORPORATE TENANTS. In the event the Tenant hereunder is a corporation, the persons executing this Lease on behalf of the Tenant hereby covenant and warrant that: the Tenant is a duly constituted corporation qualified to do business in the state in which Landlord's Building is located; all Tenant's franchise, corporate and other lienable taxes have been paid to date; all future forms, reports, fees and other documents necessary for Tenant to comply with applicable laws will be filed by Tenant when due; and such persons are duly authorized by the governing body of such corporation to execute and deliver this Lease (including the warrant and/or power of attorney provisions contained in Section 16.02) on behalf of the corporation. Section 23.14: TENANTS 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. This Lease shall not be recorded; however Landlord shall have the right to record a short form or memorandum thereof, at Landlord's expense, at any time during the term hereof, and Tenant shall execute same. Section 23.16: AGENT OF LANDLORD. Agent has acted as an agent of Landlord in connection with the execution of this Lease and shall not in any event be held liable to the Landlord or to Tenant for the fulfillment or non-fulfillment of any of the terms or conditions of this Lease or for any action or proceeding that may be taken by Landlord against Tenant, or by Tenant against Landlord. Any waiver of Landlord's liability hereunder, including any waiver of subrogation rights, shall apply with equal force and effect to, and as a waiver of any liability of, Agent. Section 23.17: HAZARDOUS MATERIAL. (a) As used herein the term "hazardous material," means any flammable, explosive, medical, human or animal tissues or substances, hazardous or toxic 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 any law, ordinance, statute, governmental rule or regulation to be capable of posing a risk of injury to health, safety or property and/or the use, storage and/or disposal of which is regulated by any governmental authority, including, without limitation, all of those materials and substances designated as hazardous or toxic by the local government having jurisdiction over the Premises, the U.S. Environmental 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 invitees, Landlord, at its election, shalt have the right to (1) cause Tenant to remove and properly dispose of same, all at Tenant's sole cost and expense, in accordance with applicable law and means and methods approved in advance by Landlord and its professional consultants, and Landlord shall have the right to monitor such work or (ii) perform the removal and disposal thereof itself, in which event Tenant shall comply with all reasonable requirements imposed by Landlord with respect to the performance of 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: 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 Caf6-CapitalCityMall-FinalFinalFinal June 7, 2006 t CoUins/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. (d) In accordance with the Occupational Safety and Health Administration Asbestos Rule (1995), 59 Fed. Reg. 40984, as amended and supplemented ("OSHA Asbestos Rule"), Landlord hereby notifies Tenant of the presence 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 enclosed common areas, if any. The ACMs and PACMs may take the form of pipe wrap, vinyl asbestos flooring, sprayed on or trowled on fire 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 Landlord, without cost or expense to Tenant, the applicable portions of any environmental impact survey conducted by Landlord regarding the Shopping Center. The purpose of Landlord's notification is to make Tenant, its agents, employees and contractors aware of the presence or possible presence of ACMs and/or PACMs in the Shopping Center in order to avoid or minimize any damage to or disturbance of such ACMs and/or PACMs during the progress of Tenant's Work and/or Construction Work. Tenant shall obtain a signed acknowledgment from its agents, employees and contractors working in or about the Premises indicating that such agents, employees and contractors are aware of the presence or possible presence of ACMs and/or PACMs within the Shopping Center and agreeing not to disturb the same during the performance of Tenant's Work and/or Construction Work. At Landlord's request, Tenant shall deliver to Landlord copies of such signed acknowledgments. (e) Tenant shall comply with all applicable Governmental Requirements affecting the Premises, the operation of Tenant's business at the Premises, and the use and removal of any substances therefrom, including, without limitation, hazardous materials installed by Tenant, its agents, employees, contractors or invitees. Such compliance shall include, inter alia; (1) the filing by Tenant of all governmental applications and registrations for all substances used, stored, manufactured, generated or otherwise In the Premises; (ii) the obtaining of all licenses and permits with respect thereto; (iii) the timely filing from time to time, as required, of all reports and other matters required to be filed with governmental authorities having jurisdiction; and (iv) notifying each of its agents, employees and contractors of the presence or presumed presence of ACMs and PACMs within the Shopping Center as set forth above. (f) Tenant shall protect, defend, indemnify and hold Landlord harmless of, from and against all claims, actions, liens, demands, costs, damages, punitive damages, expenses, fines and judgments (including legal costs and attorneys fees) incurred by reason of any actual or asserted failure of Tenant to fully comply with the provisions of this Section 23.17 and/or spills or other contamination of air, soil, or water by or resulting from any hazardous materials installed by Tenant, its agents, employees; contractors or invitees at or around the Premises or the Shopping Center or resulting from removal thereof. (g) Upon ten (10) days :prior written request from Landlord, Tenant shall execute, acknowledge and deliver to Landlord a written statement in form satisfactory to Landlord certifying(i) if true, that Tenant has not disposed of any oil, grease, toxic, or hazardous material, at the Premises or (ii) that any such substances used, processed or generated at the Premises have been disposed of properly in accordance with all applicable Governmental Requirements. If Tenant is unable to certify either of the above, Tenant shall so notify Landlord and give Landlord the details resultng in Tenant's inability to so certify. (h) Tenant shall surrender the Premises to Landlord upon the expiration or earlier termination of this Lease free of hazardous materials brought thereon by Tenant and those acting on its behalf and in a condition which complies with all Governmental Requirements, recommendations of consultants hired by Landlord, and such other reasonable requirements as may be imposed by Landlord. 0) 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 auditor 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-CapitalCityMall-FinalFinalFinal June 7, 2006 1 Ciolfins/JCR 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 if 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 Tenant, Guarantor and Tenant's and Guarantor's business operations as may be requested by Landlord, any mortgagee or prospective mortgagee or purchaser or prospective purchaser. Section 23.21: SPRINKLER CHARGE. Deleted. Section 23.22: NOTICE TO MORTGAGEE. If the holder of any mortgage which has a lien against the Shopping Center or any part thereof forwards to Tenant written notice of the existence of such lien, then Tenant shall, so long as such mortgage is outstanding, be required to give to such lienholder the same notice and opportunity to correct any default as is required to be given to Landlord under this Lease, but such notice of default may be given by Tenant to Landlord and such lienholder concurrently. Section 23.23: WAIVER OF JURY TRIAL. Landlord and Tenant hereby waive all right to a 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 maybe) subsequently attempts to assign this tease 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 tree 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 herein is not intended to operate, and shall not be construed, as a provision that `prohibits, restricts, or conditions the assignment of this Lease within the meaning of 11 U.S.C. § 365(f) or any similarstatutory provision. 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 'Tenants Allowance.' Landlord shall set off against Tenant's 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 maybe, at the time of Tenant's request for the payment of Tenant's Allowance. McGrath's Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 1 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 Tenant's 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 be paid 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 Landlord's 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: 0) Tenant's affidavit that Tenant's Work has been completed to Tenant's satisfaction and in complete accordance with the Tenant's 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 materiaimen 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 fails 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 GLAforthe Exclusive Use, excluding: 0) any premises occupied under a Permitted Lease; (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 following: Appiebees; Ruby Tuesdays; and T.G.1. 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 )eased 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 null and void if McGrath's Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 1 Collins/JCR 36 (i) 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 closing 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 verged 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 (i) 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 shall 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 safe 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 Landlord shall 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-CapitalCityMafl-FinalFinalFinal June 7, 2006 t Collins/JCR 37 (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 clear 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 later than 15 days prior to the required filing 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 Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 \ COllinsOCR 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 16.02(b) AND (c) AND THAT THE LANDLORD-TENANT RELATIONSHIP CREATED BY THIS LEASE IS COMMERCIAL IN NATURE. TENANT WAIVES ANY RIGHT TO A HEARING WHICH OTHERWISE WOULD BE A CONDITION TO LANDLORD'S OBTAINING THE JUDGMENTS AUTHORIZED BY SUCH SECTIONS AND ACKNOWLEDGES AND AGREES 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 WAIVER OF 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, LL C, Agent for PR J ITY LIMITED PARTNERSHIP BY: BRUCE GOLDMAN EXECUTIVE VICE-PRESIDENT TENANT: urr._rn uir. McGrath's Cafe-CapitaiCttyMall-FinsiFinalFinal June 7, 2006 1 CoIIInsQCR 39 Z }o L a6ed .d. i!q!4x3 V ; 70- .Q ca V c ? x Y w N p Y -w Yp m ?o>°o m3'c?E c ?tY. u o n,? c 1ov Of Y A Y •ri •05. d Y C Lc `o ? Y u A C ? ? r YftO'La O .a ? q O ?? r G m YO N $C Z j Y Yw Y,d _ C Y nA?a o? Y O Y Is cq ? V J y M ? 4 C ? C t .s?Ya F ? F O sy WADS 00 OMB ?s rvw xln ?viwv? 0 Z jo Z e6ed „`d„ l!4!4X3 - a ? a +? n V E - v cp .Q V F? ? E 00 $ o= a r M N A.? ??Y O • Y ?., N C H9 Y C ? ? z A ? o ? 'c c 6umc n ? v ?+ i m E E &t c 7 RL G O 3 n w. EXHIBIT "B" GUARANTEE OF LEASE THIS GUARANTEE made this CZ2 day of v . S , 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, 3r° Floor, Philadelphia, PA 19102 ('Landlord"). Background n? On the day of 2006 ,Landlord entered into an Agreement of Lease (hereinafter, together with all prior amendments thereto 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 or by reason of this Guarantee, or any other agreement or transaction between the undersigned, Landlord and/or Tenant; and (d) all notices of a financial condition or of any adverse or other change in the financial condition of Tenant. 3. Landlord shall have the right from time to time, and at any time in its sole discretion, without notice to or consent from the undersigned, or without affecting, impairing, or discharging, in whole or in part, the liabilities of the undersigned hereunder, to 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 parry liable for the Liabilities, or any portion or provision thereof; to grant extensions of time and other indulgence of any kind to Tenant; to compromise, release, substitute, exercise, enforce or fail or refuse to exercise or enforce any claims, rights, or remedies of any kind which Landlord' may have at any time against Tenant or any other party liable for the Liabilities, or any thereof, or with respect to any security of any kind held by Landlord at any time under any agreement or otherwise. Nor shall the Liabilities of the undersigned be affected, impaired or discharged, in whole or in part, by reason of any action whatsoever taken by Landlord including, without limitation, 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 Tenants 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-CapitalCityMall-FinalFinalFinal June 7, 2006 1 Collins/JCR 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 IN ANY COMPETENT COURT AN ACTION OR ACTIONS FOR THE RECOVERY OF SAID LIABILITIES, CHARGES AND OTHER SUMS, AND IN SAID SUIT OR IN SAID ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST GUARANTOR FOR ALL OR ANY PART OF THE LIABILITIES SPECIFIED IN THIS GUARANTEE AND THEN UNPAID INCLUDING, AT LANDLORD'S OPTION, THE LIABILITIES FOR THE ENTIRE UNEXPIRED BALANCE OF THE TERM OF THE LEASE, AND ALL OR ANY PART OF ANY OTHER OF SAID CHARGES OR SUMS, AND FOR INTEREST AND COSTS TOGETHER WITH REASONABLE ATTORNEY'S FEES OF 5%. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF SAID LIABILITIES OR SUCH OTHER SUMS, CHARGES, PAYMENTS, COSTS AND EXPENSES SHALL FALL DUE OR BE IN ARREARS, AND SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE TERM OR DURING ANY EXTENSION OR RENEWAL OF THE LEASE. In any action to confess judgment for Liabilities in arrears, Landlord shall first cause to be filed in such action an affidavit made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this Guarantee (and of the truth of the copy such affidavit shall be sufficient evidence) be filed in such action, it shall not be necessary to file the original as a warrant of attorney, any rVle? ?iourt, custom or practice to the contrary notwithstanding. (INITIAL). GUARANTOR WAIVER. GUARANTOR SPECIFICALLY ACKNOWLEDGES THAT GU TOR HAS VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVED CERTAIN DUE PROCESS RIGHTS TO A PREJUDGMENT HEARING BY AGREEING TO THE TERMS OF THE FOREGOING PARAGRAPHS REGARDING CONFESSION OF JUDGMENT. GUARANTOR FURTHER SPECIFICALLY AGREES THAT IN THE EVENT OF DEFAULT, LANDLORD MAY PURSUE MULTIPLE REMEDIES INCLUDING OBTAINING A MONEY JUDGMENT FOR PAST DUE AND ACCELERATED LIABILITIES AND EXECUTING UPON SUCH JUDGMENT. FURTHERMORE, GUARANTOR SPECIFICALLY WAIVES ANY CLAIM AGAINST LANDLORD AND LANDLORD'S COUNSEL FOR VIOLATION OF GUARANTOR'S CONSTITUTIONAL RIGHTS IN THE EVENT THAT JUDGMENT IS CONFESSED PURSUANT TO THIS GUARANTEE. 7. If Landlord shall employ counsel to enforce 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 attorneys 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 andlor the United States District Court for the Eastern District of Pennsylvania in any and all actions and proceedings whether arising hereunder or under any other agreement or undertaking. The undersigned waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding brought in any such court, any claim that Guarantor is not subject personally to the jurisdiction of 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 suit, 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 (1) 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 Cafe-CapitalCityMall-FinalFinalFinal June 7, 2006 \ Collins/JCR 41 (C) (i) 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 (ii) are there any actions, proceedings or investigations pending or threatened against or affecting Guarantor (or any basis therefor known to Guarantor) before or by any court, arbitrator, administrative agency or other governmental authority or entity, any of which under (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 be held 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 shall be valid and enforceable to the fullest extent permitted by law. 14. Within fifteen (15) days after written request from Landlord, the undersigned shall deliver to Landlord or its designee, an estoppel certificate in form satisfactory to Landlord and the undersigned executed by the undersigned confirming that this Agreement remains in full force and effect in accordance with its terms and ratifying the undersigned's obligations hereunder. 15. All notices, demands, requests, consents, approvals or other communications (collectively, "Notices") desired or required to be given under this Guarantee shall be in writing, and, any law or statute to the contrary notwithstanding, shall be effective for any purpose if sent by recognized overnight courier, prepaid, addressed as follows: If to Guarantor, to it at: 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 parry 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 Caf6--CapitaiCityMail-FinalFinalFinal June 7, 2006 t Collins/JCR 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) THOMASSCO (SEAL) (SEAL) AMY OTT McGrath's Cafe-CapitaiCityMalt-FinalFinalFinal June 7, 2006 l Collins/JCR 43 EXHIBIT "C" COMPLETION CERTIFICATE DATED AS OF PARTI 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 sauare feet Actual Opening Date: Rent Commencement Date: Expiration Date: PART II Tenant, intending legally to be bound hereby, hereby ratifies the Lease and hereby certifies and agrees with Landlord as follows: A. the dates and other information set forth in this Completion Certificate are true and correct; and, B. the Rent Term commences on the Rent Commencement Date set forth in PART I hereof and ends absolutely and without notice at 11:59 P.M. (local time) on the Expiration Date, unless sooner terminated as provided in this Lease or extended by written agreement of the parties; and, C. the Lease has not been assigned, supplemented, amended or otherwise modified 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 Ill 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 materiaimen, 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-CapitatCi yMatl-FinalFinalFinal June 7, 2006 \ 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. Title: (Corporate Seal) Attest: McGrath's Caf6-CapitalClryMatl-FinatFinalFinai June 7, 2006 \ Collins/JCR 45 Jan 23 06 11:34a McGrath's Pub 717-232-9437 p.2 5??F, ??Ovpp¢tiz?rs salads Steamed Clams One dozen little peek elams prepared with lemon & white wine. Served with fresh herbs & garlic butter ... $8.00 Steamed Shrimp One-dozen seasoned, large shrimp served with cocktail sauce. Your going to love peeiing them!.- 811.00 Battled Crab Dip fresh lump crab meat baked with cream chaase & garlic. Served with bread chips.- 510.00 Scallops with Mushrooms pan seared sea scallop,% served with a roasted marinated portaballa mushroom. Topped with roasted red pepper pasto sauce _. 59.00 Smoked Salmon Rosettes Salmon roiled with eream cheese. Served with a eager roulade ... ,$9.00 ?• lu ice McGrath's Salad fresh field greens, cucumbers, mushrooms, tomatoes & carrots with blaeAmed orSz llod ehleken _ $8.00 Stuffed portabella Mushroom Salad Baked with roasted red peppers, panto, crab meat & fresh mozzarella ehease. Served on a bad of field greens tossed with balsamic vinaigrette _. $10.00 Marinated Steak salad Served over f ield greens with mushrooms, tomatoes, red onions, breaded green beans & shredded cheddar cheese. Served with choice of dressing _ $11.00 Romaine Salad fresh romaine lattuee tossed with roasted garlic dressing, croutons & parmesan cheese. Served with chickon. prepared blackened or grilled .- $8.00 Or with tJeellowjin tuna blackened or pan-seared -..$10.00 45oaps Baked Potato Soup McGrath's famous soup topped with cheddar cheese, scallions & bacon.- 55.00 Lamb Stew with Carrots The carrots are not traditional but they make a more tasty & interesting dish'. W.00 Soup of the Day Made fresh daily ._;3.50 \ Q EXHIBIT "D" MENU PAGE 1 OF 4 Jan 23 06 11:35a McGrath's Pub 717-232-9437 p.3 (c sandwiches (Saved with fries) Grilled Conned beef With coleslaw, 1000 island dressing &-Swiss cheese on fresh marble rye bread ... $730 portabelia Sandwich 19 roasted portabella mushroom topped with fresh mozzarella cheese. roasted red peppers & pesto sauce. Served on a Kaiser roll _. $8.50 Crabcake Sandwich Prepared Maryland style with lettuce & tomatoQa. Served on a Kaiser roll ... $9.00 tint Smoked Sausage $erks' famous sausage topped with sauteed onions & fries. Served on a mini froneh roll -. &6.95 Roast Seef Wrap Whot¢-wheat wrap, stuffed with roast beef. Romaine, red onion, Gorgonzola cheese and la? horseradish sauce .- $7.95 Crabeake Sandwieb Prepared Maryland atylw with lettuce & tomatoes. Served on a Kaiser roll - $9.00 oC Grilled Turkeg itachel With coleslaw, 1000 island dressing & Swiss cheese on fresh marble rye broad- 5750 fried fish Sandwich Satter dipped haddock with lettuce & tomatoes served on a rustic baguette with tartar sauce .- 58.00 Grilled Marinated Chleken breast Topped with Guinness $$Q sauce. cheddar cheav- & bacon. Served on a Kaiser roll -. $7.50 Grilled Salmon & Goat Cheese Open faeed grilled salmon drizzled with olive oil, topped with a light creamy goat cheese and served on our house foeaecia. Served with a side of tarragon mayo & coleslaw ... VOS5 $tarneg bleu Chicken Charbroiled boneless chicken brgmst topped with bleu cheese, lettuce, tomato, and onion. S¢tv¢d on a sun-dried tomato bun with sun-dried tomato mayo & fries- &725 EXHIBIT "D" MENU PAGE 2 OF 4 Q Jan 23 06 11:35a McGrath's Pub 717-232-9437 p.4 en#rft s (SRrVRd with a ehoiCR of house or romaine salod) Shepherds Pig LI.S.?.t4. 90monlco Steak Seasoned ground sirloin with Grilled to doneness. topped with carrots, onions, corn & peas. mushrooms & a caramelized Topped with coleannon onion derni-glace. & cheddar cheese. Served with coleannon & baked to perfection _ $10.00 vegetabies _ X18.00 fish & Chips prepared with batter dipped salmon. Served with coleslaw & tartar sauee ...111.00 bangers & Mash Traditional Irish pork sausages sau?p4ed with caramelized onions & gravy. Served over coleannon ... $$9.00 pan-A¢ared Chicken Marinated breast of chicken prepared with a roasted tomato crab sauce. Served with rice & vegetables... St5.00 1Zaekof lamb Marinated New Zealand lamb prepared with a balsamic mint reduction. Served with rice & vegetables _. 824.00 Maryland Styie t,,rabeakes Topped with a roasted red pepper sauce. Served with riee & vegetables -. $20.00 Shrimp & Scallops pan seared bacon wrapped sea scallops with jumbo shrimp on a skewer. §mvd with mild waasbi sauce, riee & vegetables _. $17.00 Jumbo Shrimp Skewered shrimp, grilled and topped with a red wine vinaigrette ... $1695 Half Roast Vaek Oven-roasted duck, served with a rum-raisin sauce _.11893 ?C Irish Meatloaf Wrapped with bacon & made fresh daily. Served with coleannon, vegetables & gravy _. S11.00 Fresh Cedar Plank Salmon Prepared with a roasted red pepper caper citrus sauce. Stewed with rice & vegetables _. $17.00 Whiskgg Chickim Q1iek¢nbreasts served with mushrooms & leeks in whiskey cream sauce -,$15,95 12-Ounce My Strip Steak Charbroiled center-cut steak, topped with a Guinness-portabella sauce ... 51695 4 EXHIBIT "D" MENU PAGE 3 OF 4 Jan 23 06 11:35a McGrath's Pub 717-232-9437 P.S L9 tradit/onat poMlo dlah/ end Served with filet tips In a rosemary mushroom demi-glaeo._ 412.00 Served with grilled ehickitn in at light cream sauce. with broccoli.- 4t0.00 u rs ftmed with fries) bacon & Chizddar$urg¢r _.47.50 Cashel S1izuCh"SizSurgiZr_.48.50 undm¢ssed Barger _ 46.50 Veggie Burger ... 47-50 Cr?m¢ Sruiee flavored with vanilla beans &t topped with earamelized sugar _ 47.00 6elato (Many Flavors) Rich ltalien style lee cream W 46.00 McGrath's'Dessert Caramel custard with seasonal fruit. Zprinkled with Irish cream. Topped with whipped cream.- $6.00 Reec¢'s peanut Sutter Ple Cracker crumb crust filled with eboeolate & peanut butter cream. Topped with whipped cream _ 46.00 Chfgstz Cake New York alyle 45.00 EXHIBIT "D" MENU PAGE 4 OF 4 v3ab JNIlb3S 3aisino "3,, 1181HXS Z a ki kip, L.LJ MONO O w 0 Q i w J luajaJols JOIJa)ui "Z/ L 9-,OS g 00 R C\j c? LO T w N „z/L o-, L L $ 0 z Q • J a ? Y LO N p 0 Q .? > o N p Of D ? Y O S 4 N ? N ? ?Ol ac ? o tm? a > 8Y .atep ?.s y, n'n W ? ?Oo u W C O _1 O Q ? p o _0 1 }" o m ~? o II UH a 00 N J a 0-0,0--, Q_ t a_ Q °U c 0 U0 ?cn Ln 3NOZ .LNtRlfl` is3v ON „3„ IISIHX3 V Q m u a ?=E 0 z H 0 a'?O1 N ti ? 5z 01.4 C q N A n Off L c F yA Y p ? N O? .? 3 w O V 0 "Eo?E rqg:?. Pg-9v C +L o, 4 w L C 0 ?oMa ??29 ?dw O O m ? ? N D is ?sr b? r a S o 3Noz mans oN ,iJ„ IISIHX3 V F Q V Tvn yip nAW 0 r "a NNW CONFIRMATION OF POWER OF ATTORNEY WHEREAS, pursuant to that Lease dated August 22, 2006 (the `Lease') by and between NICKJO, INC. ('Nicjo") and PR Capital City Limited Partnership ("LandbM"), Landlord let unto Nicjo certain Promises known as Store No. SW in the Capital City Mail, Camp Hill, PA WHEREAS, as more fully set forth in Section 23.28 of the Lease, Landlord agreed to cause rights in a liquor license to be transferred to Nicjo, subject to, among other things, Nicjo's providing a power of atl omey 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. ('Tenant"), and Tenant assumed the obligations of Ntcjo under the lease. WHEREAS, this Confirmation of Power of Attorney confirms Tenants 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 the undersigned, and for other good and valuable consideration. Tenant hereby agrees: Upon Landlord's request, Tenant shall execute in blank PLCS seller's bansfer forms, to be held by Landlord for the express purpose of r+econveying 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 executing 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 file a LICC-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 SS COUNTY OF ki On this '?hll+ day of 2006, before me a Notary Public in and for a Commonwealth of Pennsylvania, the tinder red p Sued officer, Puy aP dick ,?3[-44i` , who acknowledged h 111WIM elf to be the of Mc(3m&s Grille, Inc., a corporation, and that he/she as such officer, being iftodwd to do so, exeoAed the foregoing imstrutneut fpr the purposes therein contained by signing the same of the earporation by himAmmif as such old. In Witness Whereof; I hereunto set my hand and official seal- I SEAL) Notary Pubttc 14 My Commission Expires r7I04k a3 9 COMMONWEALTH OF PENNSYLVANIA NOTAR{Al. SEAL BARBARA E. PALMER, Notary Public City of Harrisburg, Dauphin County My Commission Expires May? 20? Exk?bi? )- ASSIGNMENT OF LEASE THIS ASSIGNMENT, made this A?day of Autos 7, 2006, by and between PR CAPITAL CITY LIMITED PARTNERSHIP (hereinafter called "Landlord"), NICJO, INC. (hereinafter called "Assignor") and MCGRATH'S GRILLE, INC. (d/b/a MCGRATH'S EMERALD GRILLE) (hereinafter called "Assignee"). WI_TN-ESS-ETH: WHEREAS, on August -Mr 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 Lease (including without limitation the obligations to pay the Minimum Rent, Percentage Rent and Additional Rent and to use the Premises as more fully set forth in said Lease), all with the same force and effect as if Assignee had executed the Lease originally as the tenant named therein. Assignee hereby agrees that the obligations herein assumed by Assignee shall inurejointly H:\WP\McGratWsCafe-Collins\Assignment\McGraths-Capita]City-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 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; (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 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 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. Landlord hereby consents to the assignment of the Lease by Assignor to Assignee, and hereby agrees that hereafter all notices to be sent to Assignee, as tenant under the Lease, shall be sent to: McGrath's Grilie, Inc., 202 Locust Street, Harrisburg, PA 17101. 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] -4- IN WITNESS WHEREOF, the parties have caused this agreement to be executed the day and year first above written. LANDLORD: PREIT SERVICES, LLC, Agent for PR CA ITAL CITY LIMITED PARTNERSHIP BY: BRUCE GOLDMAN EXECUTIVE VICE-PRESIDENT (Corporate Seal) ASSIGNEE: MCGRATH'S GRILLE, INC. (Corporate Seal) 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: -5- ASSIGNOR: NICJO, INC. Title: Cxti,6'14 3 LANDLORD'S CONSENT TO ASSIGNMENT THIS LANDLORD'S CONSENT TO ASSIGNMENT is entered into among McGrath's Gr le, Inc f"Borrower"), whose address IS-3506 Capital City Mall Drive, Camp Hill, PA. 17011; COMMERCE BANKIHARRISBURG N.A. l' ender`), whose address is COMMERCIAL BUSINESS DEPARTMENT, 3801 PAXTON STREET. HARRISBURG. PA 17111; and PR Capital C Limited Partnership ("Landlord'), whose address is cfo PRIET Services, LLC, 200 S. Broad St., The 8e11vue, 3rd Fir, Philadelphia, PA 19102 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 Loan er against such security interest in the Collateral and for other valuable consideration, Landlord hereby agrees with Len mower as follows. COLLATERAL DESCRIPTION. The word "Collateral' means certain of BSttvwet' personal property in which Lender has acquired or will acquire a security interest, including without limitation the folio w' ii property: All inventory, Chattel Ps a s, Equipment, General Intangibles and Fixtures; whether any of the foregoing is owned now or acquired let • ss ons, additions, replacements, and substitutions foisting 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 acti y any of the parties. This assignment includes all renewals of and amendments to the Lease of the Loan, until the Loan is paid in full. N?mendments may be made to the Lease without Lender's prior written consent, which shall not be unreasonably withheld or delayed. k tr` I CONSENT OF LANDLORD. Landlord consents to the above assignment. It Borrow efaults under the Loan or the Lease, Lender may reassign s the Lease, and Landlord agrees that Landlord's consent to any such reassignment seaa64r wiEMhefd-ee-deIA"d. So long as; ` Lender has not entered the Premises tar the purpose of operatiflg a business. Le r will have no liability under the lease, inv1t9 itty.writMeet SJ. f Whether or not Lender enters into possession of the Pte ses for any purpose, Borrower will remain fully liable for all obligations of Borrower as lessee under the Lease. If v 'll d ft\t b? QS P? 00 Z4W13 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 termi the Lease, despite any detel+dt by•BpgEovler, without giving Lender written notice of the default and an opportunity to cure the default within ) +eelel der C.+ f or bu lung -as , or bu lung -as sa"ect., Y to be. sa"ect., Y to be. --Am w¢ ' e f fr ,. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: This Agreement shall extend to and bind T the respective heirs, personal representatives, successors and assigns of the parties to this Agreement. a;a L to, (.05 tr4pti[oren ^r anrlor?a to whom I_enrler may transfer any nlatm or nlaims to which rhie Agreement shall anoiv. Ag rr ^ % ?nr thr; •ise in r ?---=• This Agreement shall be governed by and construed in accordance with the laws of the J Commonwealth of Pennsylvania. If r....d,.,. shall not be deemed to have waived any rights under ibis Agreement unless such waiver is in writing and signed b lirrlfeT. Without notice to t P?Lf/r Landlord and without affecting the validity of this Consent, Lender may do or not do anything it deems appropriate necessary with respect to j the Loan, any obligors on the Loan, a bean; including without limitation extending, renewing, earranor accelerating 9- any of the Loan indebtedness. 1 `. AMENDMENTS. This Agreement, t s, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed a rty or par spoouupggy//h9? ?ttyy be charged or bound by the alto/t}?u???"tn,?or}?Vne ent. ?(y si WAIVER NBCii/?! er+aershall wet be deemed to havo wa d" arty rights nd is Agreement unless sus ? er is given in writing igneed by No delay or omission on the part of in exercising any right shall operate as a waive of such right or any other ri h fiver by Le++de I a provision of this Agreement shall not prejudice or constitute a waiver of Le"d right otherwise to demand ,rne _ strict compliance wr at provision or any other provision of this Agreement. No prior waiver b nor any course of dealing betweenA a rya, shall constitute a waiver of any of L rights or of any of L obligations as to any future transactions. TfiP\ nom` ` Whenever the consent of s required under this Agree nt, the granting of such onsent b n any instance shall not constitute continuing consent to subse, u instances where such copse is required and in all ca s such co sent may be fed or withheld in the sole 'Onv r.nyprovision ? TY. If a court or acompetent risdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any e, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other citcumstance. If feasible, the rovision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot.be so shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability of 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 I Borrower: McGrath's Grille, Mc Lender: COMMERCE BANKIHARRISBURG N.A. 3506 Capital City Mail Drive COMMERCIAL BUSINESS DEPARTMENT Camp Hill, PA 17011 3801 PAXTON STREET HARRISBURG, PA 17111 (717) 975-6630 LANDLORD'S CONSENT.TO ASSIGNMENT Loan No: 19593850-05 (Continued) Page 2 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 shad have the meanings attributed to such terms in the Uniform' Commercial Code: Agreement. The word "Agreement" means this Landlord's Consent to Assignmen , as this Landlord's Consent to Assignment may be amended or modified from time to time, together with all exhibits and schedules atta had ?t^o rthis Landlord' Consent pto Assit from time to time. (Dx3 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. D Landlord. The word "Landlord" means PR Capital City Limited Partnership, and is used for convenience purposes only. Landlord's interest in the Premises may be that of a fee owner, lessor, sublessor or lienholder', 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 orr/o?wer.. ^ r Lender. The word "Lender" means COMMERCE BANKMARRISBURG N.A., its successors and assigns. N((jj Il .0 Loan. The word "Loan' means any and all loans and financial accommodations from Lender to Borrower er now or hereafter existing, and however evidenced. Note. 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 located in Cumberland County, Commonwealth of Pennsylvania, commonly known as 3506 Capital City Mall Drive, Store 800, Camp Hill, PA 17011. I B R yPA GE'HTONG READ ALL THE PROVISIONS OF THIS LANDLORD'S CONSENT TO ASSIGNMENT, AND BORROWER AND LAND RD AGREE TO ITS TERMS. THIS AGREEMENT IS DATED AUGUST 23, 2006. l { 1RD( (1tk-? &.1-6 Wt At V PCB OF ?lis kf-e ('~fi THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: MCGRATH_S RILLE, NC By:. _fSeall homas J. co resident of McGrath's Grille, Inc LANDLORD: PR CAPIT CZ LIMITED PARTNERSHIP By: (Seal) 7915thorized Signer for PR Capital City lmited Partnership 8y' Wee!; AWhefted Signer far PA 6apitel 1? -- 11-ked-Rartrwrship LENDER: COMMERCE BANKfH X X14 - ARR ISBUR A. uthoriza O' rc ux"moo ?..a.y. v. Ir..re=Cow 1w4.+ F:war so:.,....w iss,. :as r.s nyan ti.w,." •ro i, :wuurvex r;nvcnsx<c?r; -R.rou, aa.m Loan No. 19593850-05 RIDER 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:1WP\McGrath'sCafe-Collins\Collateral Assignment of Lease\McGrath's-CapitalCity-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 (30th) 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 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). 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) It'e 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:\WP\McGrath'sCafe-Collins\Collateial Assignment of Lease\McGrath's-CapitalCity-CotlateralAsmtRider -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 Judgment - Possession. Lender, as assignee of the Lease, covenants and agrees at if there is an Event o Default 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: (1) 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 indirectly 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, appearing 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?gg, or in connection therewith, if a copy of this Agreement and/or the Lease is therein veriTied 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 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. Landlord hereby acknowledges and agrees that Lender's foregoing confession of judgement 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 partyy 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:\WP\McGrath'sCafe-Collins\Collateral Assignment of Lease\McGtath's-CapitalCity-CoRate alAsmtRider -Final -LnOS.doc Loan No. 19593850-05 BORROWERITENANT McGrath's Grille, Inc. 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: LANDLORD: PREIT SERVICES, LLC, Agent for PR CAPITAL CITY LIMITED PARTNERSHIP BY: Name a Title: LENDER Commerce ank/Harrisbur , NA BY Name and Title Afdal.,ur., B Name and Title: 454575v1 H:\WP\McGratksCafe-Collins\Collateal Assignment of Least\McGrath's-CapitalCity-CollateralAsmtRider -Final -Ln05.doe LANDLORD'S CONSENT TO ASSIGNMENT in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular ban or item. Any item above containing * * " I" has been omitted due to text length Iimitatinnc Borrower: McGrath's Grille. Inc Lender: COMMERCE BANKIHARRISBURG N.A. 3506 Capital City Mall Drive COMMERCIAL BUSINESS DEPARTMENT Camp Hill. PA 17011 3801 PAXTON STREET HARRISBURG, PA 17111 17171 975-5630 THIS LANDLORD'S CONSENT TO ASSIGNMENT Is entered into among McGrath's Grille, Inc t"Borrower"i, whose address Is 506 Capital al City Mall Drive, Camp Hill, PA 17011: COMMERCE BANK/HARRISBURG N.A. I"Lender"?, whose ress is COMMERCIAL BUSINESS DEPARTMENT, 3801 PAXTON STREET, HARRISBURG, PA 17111: and FOR Capital City Limited Pa nership clo PROT Services. LLC ("Landlord`), whose address is 200 South Broad Street, The Bellevue, Third Floor, Philadelphia, PA 1910 Btxaa?i? "ter "?a„a„•?,gp? into, or are about to enter into, an agreement whereby Lender has acquired or will acquire a security interest or other into jea-art o ateral, Some or all of the Collateral may be affixed or otherwise become located on the Premises. To induce Len 7r[?ndd 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 a security interest, including without limitation the toll Ic property: All Inventory, Chattel Pa a, Equipment, General Intangibles and Fixtures: whether any of the foregoing is owned now or acquired let • salons, 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 t nd f ll f B ' e er o a o orrower 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 b B y orrower under the Loan, this assignment shall be ended, without the necessity of any further actin Y Y y any of the potties. This assignment includes all renewals of and amendments to the Lease or the Loan until th L i , e oan s paid in full. No amendments may be made to the Lease without tender's prior written consent, which shall not be unreasonably withheld or delayed. NUt iLk 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 d. So long as Lender has not entered the Premises for the purpose of operating a business, Len at will have no liability under the Lease i? Z , nt. Whether or not lender enters info possession of the Pre ices for any purpose, Borrower will remain fully liable for all obligations of Borrower as lessee under the Lease. Wko?? 21800.1481 Im des will Ma ll , . mas a P Lease If Mes 41 MR-e- hender I- h d -.a= soa yea ?+ c § LEASE DEFAULTS. Both Borrower and Landlord agree and represent to Lender that, to the best of their knowledge there is no breach or offs t , e existing under the Lease or under any other agreement between Borrower and Landlord. Landlord agrees not to termi I the Lease, despite any default by Borrower, without giving Lender written notice of the def l d au t an an opportunity to cure the default within ',- th e e m towilu -1 like a a-- *h-4 -aR AM till r d at bog at 1 anrilgr(f receives 1 . X12 `Y? ?L4^- i/ MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: This Agreement shall extend to and bind the respective heirs personal representatives s , , uccessors and assigns of the parties to this Agreement. T Iy L This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. I shall not be deemed to have waived any rights under this Agreement unless such waiver is in writing and signed b nUM-Without no trc'e" t"oF, L dl d d i h '( - 1 ' J an or an w t out affecting the validity of this Consent, Lender may do or not do anything it deems appropriate ssary with respect to 4,7ne...n the Loan, any obligors on the Loan, ; including without limitation extending renewing rin l , g, or acce erating any of the Loan indebtedness. r AMENDMENTS. This Agreement, t . constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless Ken in writing and signed by the pra?ty•or parties t to a charged or bound by the hoer do or-?n?nd e t. NO WANER?q itT? Yt7u' J s all a deemed to have wad any?ights under llfis Agreement u:ess su waiver is given in writing signed by No delay or omission on the part of under n exercising any right shall operate as waive of such right or any other ri h A w fiver by at a provision of this Agreement shall not prejudice or constitute a wrs right otherwise to demand?t?n T stnct compliance w that provision or any other provision of this Agreement. No pilot waiver bnor any course of dealing betweervl t `` I L shall constitute a waiver oT any of L right; or of any of tions as to any future transactions. Whenever the consent of L s required under this Agreemen ,the granting of such -sent b in any instance shall not constitute 11 continuing consent to subsequen instances where such consent ' required and in all cos s such cc a anted or with held in the sole discretion .9f under- SEVERABILITY. It a court of competent jurisdiction fi s any provision of this Agreement to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. 11 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 unenforce ability 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 e Rcwt?) exce 3r i?- GAS oc assly 9v-04W VCY i Y\- . LANDLORD'S CONSENT TO ASSIGNMENT Loan No: 19593450-04 (Continued) Page 2 used in the singular shelf include the plural, and the plural shall include the singular, as the context may require- Words and terms not otherwise defined in this Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code: Agreement. The word "Agreement' means this Landlord's Consent to Assignmen , as this Landlord's Consent to Assignment may be amended or modified from time to time, together with all exhibits and schedules aft had to ties L. lord's rd's Con,?sennttZ to Assignm t from time to time. las awJC'? t 1 y CWS 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. CaMerol-the Landlord. The word 'Landlord' means PR Capital City Limited Partnership c/o PREIT Services, LLC, and is used for convenience purposes only. Landlord's interest in the Premises may be that of a fee owner, lessor, sublessor or lienholder, or that of any other holder of an interest in the Premises which may be, or may become, prior to the interest of Lender. "% T, ` , 61 Lease. The word 'Lease" means that certain lease of the Premises. dated August 22, 2006, between Landlord and?rrower.. ?NCtL .J .}-0 Lender. The word "Lender' means COMMERCE BANK/HARRISBURG N.A., its successors and assigns. J (/t rv Loan. The word "Loan" means any and all loans and financial accommodations from Lender to Borrower whether now or hereafter existing, and however evidenced. Note. The word "Note" means the Note executed by McGrath's Grille, Inc in the principal amount of $600,000.00 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 located in Cumberland County, Commonwealth of Pennsylvania, commonly known as 3506 Capital City Mall Drive, Store 800, Camp Hill, PA 17011. ?f- B la GWER *11115 t*N8t!6R8 ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS LANDLORD'S CONSENT TO ASSIGNMENT, AND BORROWER AND LANDLORD AGREE TO ITS TERMS. THIS AGREEMENT IS DATED AUGUST 23, 2006. `tie ? x ck\t ed kv 6 cS ?ycV4 6 oL yore- o(- -M(s prgr-ee yr".? THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE ?THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: Z GRATH'S GRILLE, INC (Seal) omas J. reside or McGrath's Grille, LANDLORD: PR CAPITAL CITY LIMITED PARTNERSHIP C/O PREIT SERVICES, LL By: ISea11 Auth ri ed Signer for PR Capital City Limit Partnership CIO PREIT Services, LLC LENDER: COMMERCE BANK/HARRISBURG N.A. X g-er A horized Offic LLC iFP PAO \ Y 3 ] ,A 00) COY. 1Nw:H I,.::iJ iR.wn,, w? Iff), )YOS W 0./m Y„y?! - ?,: Y. iY.YYNP3!1TN11FtrI.Lii:E\S r[ IA XISf2 ML,! --?--?. Loan No. 19593450-04 RIDER 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 fall 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'sCafe-Collins\Collateral Assigmnent of Lease\McCnath's-CapitalCity-CollatemlAsmtRider -Final -Ln04.doc Loan No. 19593450-04 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 (30ffi) 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 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). 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:\WP\McGath'sCafe-Collins\Collateral Assignment of Lease\McGrath's-CapitalCity-CollateralAsmtRider -Final -Ln04.doc 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. 8. Confession of Jud went - Possession. Lender, as assignee of the Lease, covenants and agrees at i ere is an Event o De 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 ants 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 an 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 (?ossession of the Premises against Lender as assignee) and:all persons claiming directly or ><ndireedy by, thro! or under Lender (as assignee), and thereupon writ of ppossession may forthwith issue ancf be served, without any prior notice, writ or proceedling whatsoever except as may otherwise be required by applicable law; (u) 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, appearing for Lender (as assignee) and confessing or otherwise entering judgment for possession of the Premises as hereinbefore set forth. In any such action or proceeding, 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 a 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 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. 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 courser guarantying oierseein rnight delivery, addressed to appropriate party at the respective addresses set forth in the Ament and/or such other address or addresses as any partyy may designate by notice to the oaccordance 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:\WP\McGiath'sCafe-Collins\Collateral Assignment of Lease\McGrath's-CapitalCity-CollateralAsmtRider -Final -Ln04,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: LANDLORD: PREIT SERVICES, LLC, Agent for PR CAPITAL CITY LIMITED PARTNERSHIP BY: Name a ;Title: LENDER Commerce Bank/Harrisburg, NA BY ??'`=1= Name and BORROWER/TENANT McGrath's Grille, Inc. Name and Title: ,F r55-), 454575vl H:\WP\McGrath'sCafe-Collins\Collateral Assignment of [.ease\McGrath's-CapitalCity-CollateralAsmtRider -Final -LnO4.doc Exti,b;t y DARLENE NOWAK - Capital City_McGrath's 010408.x1s --- -- - -- - - - Capital City - McGrath's Emerald Grille 4-Jan-08 Billed Open 7/1/07MINIMUM RENT $ 8,333.00 $ 5,570.66 8/1/07CAM 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 10/1/07CAM 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 11/1/07REAL ESTATE TAXES $ 750.00 $ 750.00 11/1/07Energy 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 12/1/07Energy 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 1/1/08CAM ESCROW $ 2,008.33 $ 2,008.33 1/1/08 Energy Management Fee $ 50.00 $ 50.00 1/1/08REAL ESTATE TAXES $ 750.00 $ 750.00 1/1/08MINIMUM RENT $ 8,333.00 $ 8,333.00 Page 1 DARLEME NOOK - Capital City_McGrath's 010408.x1s --- - --- - Page 2 $ 88,333.51 # U1 d - V- ? 00 ? d ? D i rv Ci J -C, 1 OD CK3 ??? c' . =.zJ t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED ) CIVIL DIVISION PARTNERSHIP, ) No. o$ - Q a Plaintiff, ) V. ) NICJO, INC. and McGRATH'S GRILLE, ) INC. d/b/a McGRATH'S EMERALD ) GRILLE, ) Defendant. ) NOTICE OF ENTRY OF CONFESSED JUDGMENT FOR MONEY AND EJECTMENT TO: NICJO, Inc. and McGrath's Grille, Inc. d/b/a McGrath's Emerald Grille &Vzz lam, Please take notice that a judgment for money in the amount of $92,777.66 has been entered against you by confession on the date below in favor of the Plaintiff. Date:_ p as Pro ojot *erlandCo n Pleas 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. 08-921 CIVIL TERM PETITION TO STRIKE CONFESSED JUDGMENT FOR MONEY AND REQUEST FOR PROMPT HEARING Defendant NICJO, INC. files this Petition to Strike Confessed Judgment for Money and Request for Prompt Hearing pursuant to Rule 2963.3 of the Pennsylvania Rules of Civil Procedure, and avers as follows: 1. 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 8, 2008, Plaintiff filed a Complaint in Confession of Judgment for Money ("Complaint for Money Judgment") against the Defendant in the Court of Common Pleas of Cumberland County, PA at No. 08-921 Civil Term. A copy of the Lease Agreement and the Assignment are attached to the Complaint for Money Judgment as Exhibits 1 and 2. 7. On February 8, 2008, the Prothonotary of the Court of Common Pleas of Cumberland County notified the Defendant that a money judgment in the amount of $97,777.66 had been entered against them by confession in favor of the Plaintiff ("Confessed Judgment for Money") 8. On February 12, 2008, after the Prothonotary entered the Confessed Judgment for Money, Plaintiff's counsel caused a second Confession of Judgment for Money to be filed in the amount of $92,750.16. A true and correct copy of the second Confessed Judgment for Money is attached as Exhibit "A." 9. 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 "B" and "C". 2 10. Despite the fact that the Confessed Judgment for Money 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). 11. Also, despite the fact that the Confessed Judgment for Money was entered in the amount of $92,777.66, the Rule 2973.2 Notices indicated that the amount of the money judgment was $92,750.16. 12. 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 Money. 13. Petitioner petitions the Court to strike the Confessed Judgment for Money on this ground and requests a prompt hearing on this issue. 14. Moreover, it is apparent on the face of the record that Plaintiff has improperly confessed judgment twice on the same warrant of attorney. 15. Additionally, the incorrect amount of the money judgment and the wrong county appearing on face of the Rule 2973.2 Notices are "fatal defects" or irregularities meriting the striking of the Confessed Judgment for Money. WHEREFORE, NICJO, INC. petitions this Honorable Court to strike the Confessed Judgment for Money and requests a prompt hearing on the issues presented in this Petition to Strike. Respectfully submitted, Ad vol , Pa. ar 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, 22' Floor Philadelphia, PA 19102 (215) 851-8431 (215) 851-8383 facsimile Dated: March/A, 2008 Attorneys for NICJO, INC., Petitioner 4 03/06/2006 16:13 FAX 12158518383 ECKERT-SEAMANS 1a011/012 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plain iff V, NICJO, INC. and M ,GRATH'S GRILLE, INC. dtb/a McGRATH'S EME rALD GRILLE, Defendant. VERIFICATION CIVIL DIVISION No. 08-921 CIVIL TERM I veri i y that the statements made in this Petition to Strike Confessed Judgment for Money and Request for Prompt Hearing are true and cornea. I understand that false statements herein are made sub ect to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. Notit a 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 16d' Strcct, 22M Floor Philadelphia, PA 19102 Dated= March - : 008 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Petition to Strike Confessed Judgment for Money and Request for Prompt Hearing was & ? day of March, 2008, by U.S. First Class Mail, postage prepaid upon the served this following counsel of record: Darlene M. Nowak, Esq. Marcus & Shapira, LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 Attorney for Petitioners M0640128 VS co ?'. . rt) . © .` IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, : Plaintiff : CIVIL DIVISION V. NICJO, INC. and McGRATH' S GRILLE, No. 08-921 CIVIL TERM INC. d/b/a McGRATH' S EMERALD GRILLE, Defendant. RULE TO SHOW CAUSE AND NOW, this ! `t' day of lk&4Z '1 , 2008, upon consideration of Defendants' Petition to Strike Confessed Judgment for Money 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 ;&?day of , 2008, at A•.30 o'clock ?.m., or as soon thereafter as the parties may be heard, in Courtroom _, Cumberland County Courthouse, Carlisle, Pennsylvania. o e date o is Order; IT IS FURTHER ORDERED that, except as expressed in this Order, all other proceedings, including execution on or enforcement of the above-captioned confessed judgment, ?L_ shall be and hereby are STAYED until further Order of this Court; IT IS FURTHER ORDERED that Defendants shall promptly cause a copy of this Rule to be served upon Plaintiffs counsel. a o% ? ? ? y t_y? Y ?'. t U ?? .? L? v- a ?`' 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 : 08-0921 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.' By the Edgar B. Bayley, J. Stephen S. Zubrow, Esquire 1 Oxford Centre 301 Grant Street 35th Floor Pittsburgh, PA 15219 For Plaintiff onald S. Gellert, Esquire Two Liberty Place 50 South 16th Street, 22"d Floor Philadelphia, PA 19102 For Nicjo, Inc. :sal S ' 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. uj f' t LIJ i C^J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff vs. NICJO, INC., Vs. MID-PENN BANK, Defendant Garnishee. No. 08-921 PRAECIPE FOR WRIT OF EXECUTION AGAINST NICJO, INC. Only Filed on Behalf of the Plaintiff PR Capital City Limited Partnership Counsel of Record for this Party: Darlene M. Nowak, Esq. Pa. I.D. #37093 MARCUS & SHAPIRA, LLP Firm No. 145 One Oxford Centre, 35`h Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 nowak@marcus-shapira.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PRAECIPE FOR WRIT OF EXECUTION AGAINST NICJO, INC. ONLY Caption: PR Capital City Limited Partnership, Plainitff NICJO, Inc., aba Locust St Interest Defendant 146g. PA IWO) : Atty,SConan (included in judgment) V. Mid Penn Bank, Garnishee TO TO THE PROTHONOTARY OF THE SAID COURT: The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract, or account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed pursuant to act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended. V. Issue writ of execution in the above matter to the Sheriff of County, for debt, interest and costs, upon the following described property of the defendant (s) PRAECIPE FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff of Cumberland County, for debt, interest and costs, as above, directing attachment against the above-named garnishee(s) for the following property (if real estate, supply six copies of the description; supply four copies of lengthy personalty list) All money, accounts or other property owned by, claimed by or owed to NICJO, Inc. in whole or part. and all other property of the defendant* in the possession, custody or control of the said garnishee(s). N/eTa, ]MC . ? (Indicate) Index this writ against the garnishee (s) as a lis pendens against real estate of the defendant(s) described in the attached exhibit. Date .,y ao uv?' Signature: a Print Name: De M. Nowak ® Confessed Judgment ? Other File No. 08-921 Amount Due $92,750.16 Address: Marcus & Shapira LLP 35th Floor, One 5219d Center Pittsburgh, Attorney for: Plaintiff Telephone: (412) 471-3490 Supreme Court ID No: 3 7 0 9 3 ? p.J Ca ? p N *# Q o 0 s j z ni g> 1. o CA (A o . _ l .i r __a O ? V"? ? .l7 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08-921 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff (s) From NICJO, INC., 202 Locust Street, Harrisburg, PA 17101 (1) You are directed to levy upon the property of the defendant (s)and to sell (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: MID-PENN BANK, 2101 Market Street, Camp Hill, PA 17011 All money, accounts or other property owned by, claimed by or owed to NICJO, Inc. in whole or part. and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $92,750.16 Interest Atty's Comm (included in judgment) % Atty Paid $54.50 L.L. $.50 Due Prothy $2.00 Other Costs Plaintiff Paid Date: 4/14/08 C is R. Lon thono 7 (Seal) By: Deputy REQUESTING PARTY: Name DARLENE M. NOWAK, ESQUIRE Address: MARCUS & SHAPIRA, LLP 35TH FLOOR, ONE OXFORD CENTER PITTSBURGH, PA 15219 Attorney for: PLAINTIFF Telephone: 412-471-3490 Supreme Court ID No. 37093 SHERIFF'S RETURN - GARNISHEE CASE NO: 2008-00921 P COMMONWEALTH OF PENNSLYVANIA COUNTY OF CUMBERLAND PR CAPITAL CITY LIMITED PARTNE VS NICJO INC ET AL And now NAOH CLINE Sheriff or Deputy Sheriff of Cumberland County of Pennsylvania, who being duly sworn according to law, at 0011:50 Hours, on the 17th day of April , 2008, attached as herein commanded all goods, chattels, rights, debts, credits, and moneys of the within named DEFENDANT NICJO INC hands, possession, or control of the within named Garnishee MID PENN BANK 2101 MARKET ST CAMP HILL, PA 17011 Cumberland County, Pennsylvania, by handing to THOMAS R. CACEY (BRANCH MANAGER) personally three copies of interogatories together with 3 and attested copies of the within WRIT OF EXECUTION the contents there of known to Her . Sheriff's Costs: Docketing Service Affidavit Surcharge Sworn and Subscribed to before me this in the true and made .00 So answ, .00 .00 R. Thomas Kline .00 Sheriff of Cumberland County .0000 ? y?/F?0 F 9, 04/18/2008 day of By Deputy Sheriff A.D 0t/08/2008 10:06 05/07/2008 1:3:56 7179201760 1176921993 MID PENN BANK MIAPENINBANK I IN THE COURT OF COMMON PLEAS OF CtnWBERL.AND CdUNTY, PENNSYLVANIfiA PR CAPITAL CITY LIMITED PARTNERSIJ,?, ) CIVIL DIVISION Plaintiff; ) No. 68=921 ) v. i ) I ) NICJO, Inc. ) De?ndar?t. ? ) PAGE 02/04 PAGE 02 INTI RROGAT RIES IN AUA Ra (1 ese IlntenrrMtorles aRph goly to NzM, INC, as . TO; Mid-Penn Buk, Gaznieee i YOU A.". REQUIRED TO FILE AN3 'IRS TO THE FOLLOWING INTERROGATORIES WMEN TWENTY (2 t DAYS AFTER SERVICE UPON YOU. FAILURE TO DO SO MAY RESULT IN ,JULfI( MENT AGAINST YOU: I? I . At the time your were served or at any subsequent time did you owe N1CJO, Inc, any money or were you liable to NICJO, Inc. oA any newtiable or other written instrurngn, or did NICJO, Inc., claim that you owed it any mofey or was liable to it for any rcuua,7 Answer: V a i i i i I 2, At the time you were served er a>? any subsequent time was there in your possession, custody or contra] or in the joint poisession, custody or control of yourself and (me or more other persons any property of any natur? owned solely or in hart by the NiCJO, Jnc.? Answer: ?J O 0?/0S/2008 10:06 7179201760 MID PENN BANK PAGE 03/04 05/07/2009 13:56 1176921993 MIDPENNBANK PAGE 03 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in party by NICJO, Inc. or in which NTCJO, Inc, held or claimed any intmst? ,Answer: K,,b 4_ At the time you were served or at any aubsequent tirnc did you mold as fiduciary any property in which the NICIO, Inc. had an interest? Answer: ?,0 5. At any time before or after you were served did NICJO, Inc. tnmsfa or deliver any property to you or to any person or place pursuant to your ditwtion or consent and if so what was the consideration tb.erefor? Answer: t,,a 4 6. At any time after you were served did you pay, transfer or deliver any mo4ey or property to NlCJO, Inc. or to any person or place pursuant to NZCJO Inc. "s direction or otherwise discharge any claim of NICJO, Inc. against you? Answer: JV C? 7. If your answer to any of the above is in the affirmative, please state the amount or value oftho property you are holding, including the balance in any accounts or certificates of deposit and please give the account or certificate number& Answer: 8. Do you. hold a security interest or other, lien on any property of NTOO, inO Answer: ?Yes 2 05/08/2008 10:06 7179201760 MID PENN BANK PAGE 04/04 05107/2008 14:34 1176921993 MIDPENNEANK PAGE 02 9. if your answer to No. 8 is yes, please identify the property covered by the lion or interest and the amount of the claim that the liens or interest secures. "Y l Answer- N-?,f--ZS- - L LS (-sa43V,k % P-" 3 e hen S. Zubmw (PA. I.D. No. 43523) Darlene M. Nowak (PA,. I.D. No. 37093) MARCUS & SHAPMA LLP One Oxford Centre, 35th Flour 301 Crtot Street Pittsburgh, YA 15219 (412) 471-3490 Camel for Plaintiff PR Capital City Limited Partnership 3 rv C n - i - 'Do l.rl ?' (icy '"'"? Of- 904 COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN AFFIDAVIT I, Jessica Kerwin Deposit Processing Supervisor of Mid Penn Bank, a Pennsylvania banking corporation, being duly sworn according to law, do depose and say that the answers set forth in the foregoing Interrogatories are true and correct based upon the best of my knowledge, information and belief. MID PENN BANK B Date: > -T -C?? J a Kerwin Sworn and subscribed to before me, a Notary Public this ` day of 20( -:i L P c my commission expires: j - S- (seal) COMMONWEALTH OF PENNSYLVANIA Notarial Seal Dbde L Ross, Notary Pub k Millersburg 130ro, Dauphin County MY Commission E)Orea May 0, 2011 Msmbsr, Pennsylvania Association of Notarlas -r? c7:- " ? r y . Ik R. Thomas Kline, Sheriff, who being duly sworn according to law, states this Writ is returned ABANDONED, no action taken in six months. Sheriff's Costs: Advance Costs: 150.00 95.37 Docketing 18.00 54.63 Poundage 1.87 Advertising Refunded on 01/20/09 Law Library .50 Prothonotary 2.00 Milage 14.00 Misc. Surcharge 30.00 Levy - 20.00 Post Pone Sale Certified Mail Postage Garnishee 9.00 95.37 ? 1/? q /U 4 L? So Answers, M.000W?'??,?i/?*?C R. Thomas Kline, Sheriff B y N 9£ :£ d h 1 8dd 9001 JJId3HS ?0 ]61)` J0 ?J ? CU tau/3/ WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08-921 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff (s) From NICJO, INC., 202 Locust Street, Harrisburg, PA 17101 (1) You are directed to levy upon the property of the defendant (s)and to sell (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: MID-PENN BANK, 2101 Market Street, Camp Hill, PA 17011 All money, accounts or other property owned by, claimed by or owed to NICJO, Inc. in whole or part. and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $92,750.16 Interest Atty's Comm (included in judgment) % Atty Paid $54.50 Plaintiff Paid Date: 4/14/08 L.L. $.50 Due Prothy $2.00 Other Costs X???74 Curtis R. Long o notary (Seal) REQUESTING PARTY: Name DARLENE M. NOWAK, ESQUIRE Address: MARCUS & SHAPIRA, LLP 35TH FLOOR, ONE OXFORD CENTER PITTSBURGH, PA 15219 Attorney for: PLAINTIFF By: Deputy Telephone: 412-471-3490 Supreme Court ID No. 37093