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Home My WebLink About09-4387IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, CIVIL DIVISION No. 09 - y 387 0, iv it (erM V. CENTRAL PA COOKIE COMPANY, a Pennsylvania corporation, trading and doing business as NESTLE TOLL HOUSE CAFE, and ROBERT DELLIGATTI and SARAH DELLIGATTI, husband and wife, Defendants. NOTICE OF ENTRY OF CONFESSED JUDGMENT FOR MONEY TO: CENTRAL PA COOKIE COMPANY trading as NESTLE TOLL HOUSE CAFE and ROBERT DELLIGATTI AND SARAH DELLIGATTI, husband and wife, Please take notice that a judgment for money in the amount of $400,874.91 has been entered against you by confession on the date below in favor of the Plaintiff. Date:_ 6 a P othonot ou o ommon Pleas of Cumberland ounty IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, CIVIL DIVISION Plaintiff, V. CENTRAL PA COOKIE COMPANY, a Pennsylvania corporation, trading and doing business as NESTLE TOLL HOUSE CAFE, and ROBERT DELLIGATTI and SARAH DELLIGATTI, husband and wife, Defendants. No. 09 - 0,1V i I -Fern+ CONFESSION OF JUDGMENT FOR MONEY Pursuant to the authority contained in the Warrants of Attorney, the original or a copy of which are attached to the Complaint filed in this action, I appear for the Defendants and confess judgment in favor of Plaintiff and against Defendants for money as follows: Amount due through 6/ 1 /09 $ 44,493.38 Amount due from 7/1/09 through end of term (4/30/18) $ 337,266.06 Attorneys' fees for enforcement and collection (5%) $ 19,087.97 provided under § 16.02 of the Lease Filing Fee $ 27.50 TOTAL $ 400,874.91 Dated: June 26, 2009 Attorney for Defendants Capital City Mall Nestle Toll House Cafd UNSWORN VERIFICATION UNDER 18 PA C S 4 4904 The undersigned hereby states subject to the penalties of 18 Pa. C.S. § 4904 regarding unsworn falsification to authorities as follows: I am a duly authorized representative of the Plaintiff identified in the attached Complaint in Confession of Judgment and that averments of fact contained in such Complaint are true and correct to the best of my knowledge, information and belief. c Dated: , 2009 By onald Smith, Mall Manager, Capital City Mall PREIT SERVICES, LLC Agent for PR CAPITAL CITY LIMITED PARTNERSHIP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, CIVIL DIVISION Plaintiff, No. V. CENTRAL PA COOKIE COMPANY, a Pennsylvania corporation, trading and doing business as NESTLE TOLL HOUSE CAFE, and ROBERT DELLIGATTI and SARAH DELLIGATTI, husband and wife, COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY Defendants. 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 Moira Cain-Mannix PA ID No. 81131 MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, CIVIL DIVISION Plaintiff, V. CENTRAL PA COOKIE COMPANY, a Pennsylvania corporation, trading and doing business as NESTLE TOLL HOUSE CAFE, and ROBERT DELLIGATTI and SARAH DELLIGATTI, husband and wife, Defendants. 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 (the "Mall") in Camp Hill, Pennsylvania. 2. Defendant Central PA Cookie Company ("Tenant") is a Pennsylvania corporation. Tenant's last known address for service and notice is 230 Hummel Avenue, Lemoyne, PA 17043. 3. Tenant trades under the name of Nestle Toll House Cafe. 4. Defendants Robert Delligatti and Sarah Delligatti ("Guarantors"), husband and wife, are adult individuals. Guarantors' last known address is 230 Hummel Avenue, Lemoyne, PA 17043. 5. The original instrument evidencing the obligation on which judgment is herein confessed, or a photostatic copy or like reproduction showing the signatures of Defendants 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 March 18, 2008 (the "Lease"). Defendant Central PA Cookie Company is the Tenant under the Lease, and as noted above, Plaintiff is the Landlord under the Lease. This confession for money judgment is warranted by Section 16.02 (b) of the Lease. 6. Section 16.01(a) of the Lease provides that the following shall be deemed an "Event of Default": "Tenant's failure 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." 7. In addition, a Tenant's "failure ... to open the Premises or to keep the Premises open in the manner and on the days and hours required by [the] Lease" constitutes an Event of Default under Section 16.01(c) of the Lease. As of January 1, 2009, Tenant failed to pay as due rent, utilities, taxes and other charges due under the Lease in the amount of $44,493.38. 9. Plaintiff gave written notice of the failure to pay on, among other dates, January 7, 2009, and more than ten (10) days have passed after Tenant was sent notice of its failure to pay without making the missing payments. 10. 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 Tenant failed to make payment of rent and other charges which were due from approximately May of 2008 forward. Tenant also failed to open its business by April 27, 2008, the rent commencement date, and continues to leave the Premises vacant. 11. Due to Tenant's default, Plaintiff is entitled to accelerate rent through the entire balance of the term of the Lease (Ex. 1, § 16.02 (a)(i)). 12. In Exhibit D to the Lease (the "Guaranty"), the Guarantors guaranteed the performance of all Lease obligations by the Tenant. Under paragraph 6 of Exhibit D, should the Tenant be in default under the Lease, Guarantors authorize any attorney of record to confess judgment against them for any amounts owed by Tenant. 13. This Lease has not been assigned. 14. Plaintiff avers that judgment on the Lease and the Guaranty 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. 15. Judgment has not been entered on the Lease or the Guaranty in this or any other jurisdiction. 16. The itemization of the amount presently due under the Lease and the Guaranty and without waiver of future damages is as follows: Amount due through 6/1/09 (Ex. 2) $ 44,493.38 Amount due from 7/1/09 through end of term (4/30/18) (Ex. 3) $ 337,266.06 Attorneys' fees for enforcement and collection (5%) $ 19,087.97 provided under § 16.02 of the Lease Filing Fee $ 27.50 TOTAL $ 400,874.91 WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the Lease and the Guaranty demands a money judgment against Defendants jointly and severally in the total sum of $400,874.91, plus costs, attorneys' fees and interest at the Lease rate from and after the date of the Entry of Judgment as provided in the Lease, and brings said Lease to Court to recover said sum. Respectfully submitted, Dated: June 26, 2009 Stephen S. Zubrow Moira Cain-Mannix MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership I?, // ?? Fx?IIIJ? 1 ?ANNED LEASE AGREEMENT BY AND BETWEEN , PR CAPITAL CITY LIMITED PARTNERSHIP, as Landlord and NESTLE TOLL HOUSE CAFE BY CENTRAL PA COOKIE COMPANY, LLC, as Tenant TRADE NAME: NESTLE TOLL HOUSE CAFE LEGAL r NestleTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 2008 \ Collins= TABLE OF CONTENTS ARTICLE 1: FUNDAMENTAL LEASE PROVISIONS AND DEFINITIONS .........................................................................3 Section 1.01 Fundamental Lease Provisions ...........................................................................................................3 Section 1.02 Definitions .............................................................................................................................................4 Section 1.03 Exhibits ............................................................................................................. .....................................6 Section 1.04: RESTAURANT INSTALLATIONS .................................................................... .....................................6 Section 1.05: FRANCHISE REPRESENTATION....... ............................................................ .....................................6 ARTICLE 2: PREM ISES, TENANT'S WORK, AND RELOCATION ............................................... .....................................6 Section 2.01 Premises ........................................................................................................... .....................................6 Section 2.02 Delivery of Premises ....................................................................................... ..................................... 7 Section 2.03 Tenant's Work and Tenant's Plans ................................................................ ..................................... 7 Section 2.04 Mechanic's and Construction Liens .............................................................. .....................................8 Section 2.05 Opening of Premises; Failure to Open/Operate...... ..................................... .....................................8 Section 2.06 Relocation of Premises ................................................................................... .....................................9 ARTICLE 3: TERM ........................................................................................................................... .....................................9 Section 3.01 of Term.......... ....................................................................................... Length .....................................9 Section 3.02 , Delivery upon Term Expiration ...................................................................... ...................................10 Section 3.03 Effect of Holding Over ........................................................................................................................10 ARTICLE 4: RENT .... ........................................................................................................................ ................................... 10 Section 4.01 Tenant's Agreement To Pay Rent ................................................................. ....................................10 Section 4.02 Minimum Rent ................................................................................................. ....................................10 Section 4.03 Percentage Rent ............................................................................................. ....................................10 Section 4.04 Gross Sales ..................................................................................................... ....................................11 Section 4.05 Reporting of Gross Sales; Year End Adjustment ........................................ ....................................12 Section 4.06 Tenant's Records and Audit .......................................................................... ....................................12 Section 4.07 Additional Rent... ............................................................................................ ....................................12 Section 4.08 Late/Insufficient Funds Charge ..................................................................... ....................................12 Section 4.09 Where Rent Payable and to Whom; No Deductions ................................... ....................................13 Section 4.10 Security Deposit ............................................................................................. ....................................13 ARTICLE 5: REAL ESTATE TAXES AND ASSESSMENTS ......................................................... ....................................13 Section 5.01 Taxes ................................................................................................................ ....................................13 Section 5.02 Tenant's Tax Charge... ....................................... ........................................... .................................... 13 Section 5.03 Tenant's Additional Tax Obligations ............................................................ ....................................13 ARTICLE 6: UTILITIES .................................................................................................................... ....................................14 Section 6.01 Services ........................................................................................................... ....................................14 Section 6.02 Service Charges ..................................................................................................................................14 ARTICLE 7: USE OF PREMISES .......................................................................................................................................15 Section 7.01 Sole Use and Trade Name ............................................................................ .....................................15 Section 7.02 Hours .......:....................................................................................................... .....................................15 Section 7.03 Operational Requirements... ......................................................................... ..................................... 15 Section 7.04 Employee Parking Areas .............................................................................. 1 6 ..................................... Section 7.05 Signs and Advertising ................................................................................... 17 ..................................... Section 7.06 Radius Restriction ......................................................................................... 17 ..................................... Section 7.07 Compliance with Laws; Hazardous Substances ........................................ .....................................17 ARTICLE 8: COM MON AREAS AND OPERATING COSTS ........................................................ .....................................18 Section 8.01 Landlord's Control and Maintenance of Common Areas..... ..................... .....................................18 Section 8.02 Changes by Landlord...... .............................................................................. .....................................18 Section 8.03 Rules and Regulations .................................................................................. .....................................19 Section 8.04 Tenant's Rights and Obligations ................................................................. .....................................19 Section 8.05 Operating Costs ............................................................................................. .....................................19 Section 8.06 Tenant's Share of Operating Costs. [if PRO-RATA Operating Costs use this Section 8.06].....20 ARTICLE 9: MAINTENANCE AND REPAIR; ALTERATIONS ..................................................... .....................................21 Section 9.01 Structural Repairs by Landlord ................................................................... ......................................21 Section 9.02 Repair and Maintenance by Tenant ............................................................ ......................................21 Section 9.03 Landlord's Right to Access the Premises .................................................. ......................................22 Section 9.04 No Rent Abatement or Damages ................................................................. ......................................22 ARTICLE 10: PROMOTION OF THE SHOPPING CENTER ........................................................ ......................................22 Section 10.01 Marketing Service ......................................................................................... ................................. ..... 22 Section 10.02 Marketing Service Charge ........................................................................... ......................................22 Section 10.03 Dissolution of Merchants' Association ...................................................... ......................................23 ARTICLE 11: INSURANCE, INDEMNITY, WAIVER OF SUBROGATION .................................. ......................................23 Section 11.01 Tenant's Insurance ....................................................................................... ......................................23 Section 11.02 Landlord's Insurance ................................................................................... ......................................24 Section 11.03 Insurance Costs ............................................................................................ ......................................24 Section 11.04 Effect on Landlord's Insurance .................................................................. .......................................25 Section 11.05 Indemnification and Waiver of Claim ......................................................... ....................................... 25 Section 11.06 Mutual Waivers...... ...................................................................................... .......................................26 ARTICLE 12: DAMAGE OR DESTRUCTION .............................................................................. ....................................... 26 Section 12.01 Landlord's Duty to Reconstruct the Premises ......................................... .......................................26 Section 12.02 Tenant's Duty to Reconstruct the Premises ............................................. ....................................... 26 Section 12.03 Option to Terminate ..................................................................................... .......................................26 Section 12.04 Abatement of Rent ........................................................................................ .......................................26 ARTICLE 13: CONDEMNATION ................................................................................................. .......................................27 Section 13.01 Total Condemnation of the Premises ........................................................ .......................................27 Section 13.02 Partial Condemnation of the Premises ...................................................... .......................................27 Section 13.03 Condemnation of the Shopping Center ..................................................... .......................................27 Section 13.04 Damages ...................................................................................................... ........................................27 NestleTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 2008 \ Collins= ' AR`T`ICLE 14: FIXTURES AND PE ONAL PROPERTY ..................................................................................................27 Section 14.01 Improvements to Premises; Removal ..............................................................................................27 Section 14.02 Tenant's Personal Property; Removal......... .....................................................................................27 ARTICLE 15: ASS IGNMENT AND SUBLETTING ................................................................ .............................................26 Section 15.01 Assignment and Subletting .................................................................. .............................................28 Section 15.02 Assignment to Parent, Subsidiary, Affiliated Corporation of Tenant ...........................................28 ARTICLE 16: EVE NTS OF DEFAULT AND BANKRUPTCY ................................................ .............................................29 Section 16.01 Events of Default ................................................................................... .............................................29 Section 16.02 Landlord's Remedies ............................................................................ .............................................30 Section 16.03 Damages ................................................................................................. .............................................31 Section 16.04 Landlord's Self-Help .............................................................................. ............................................. 32 Section 16.05 Landlord's Default ................................................................................. .............................................32 Section 16.06 Legal Expenses ...................................................................................... ............................................. 33 Section 16.07 Landlord's Right of First Refusal for Tenant's Leasehold Interests ............................................. 33 Section 16.08 Shopping Center Lease ......................................................................... ............................................. 33 Section 16.09 Rejection of the Lease ........................................................................................................................ 33 ARTICLE 17: SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE ................ .............................................. 34 Section 17.01 Subordination of Lease....... ................................................................. ..............................................34 Section 17.02 Tenant's Attornment ............................................................................. ..............................................34 Section 17.03 Instruments to Carry Out Intent .......................................................... ..............................................34 Section 17.04 Estoppel Certificate .............................................................................. ..............................................34 Section 17.05 Landlord's Rights of Alienation .......................................................... ..............................................34 ARTICLE 18: MIS CELLANEOUS ......................................................................................... .............................................. 34 Section 18.01 Interpretation ......................................................................................... ..............................................34 Section 18.02 Quiet Enjoyment ................................................................................... ..............................................35 Section 18.03 Notices.......... ........................................................................................ ..........:...................................35 Section 18.04 Real Estate Investment Trust ............................................................. ..............................................35 Section 18.05 Reciprocal Easement Agreement ....................................................... .............................................. 35 Section 18.06 Relationship of Parties ......................................................................... ..............................................35 Section 18.07 Successors ........................................................................................... ...............................................35 Section 18.08 Survival of Obligations............ ............................................................ ...............................................35 Section 18.09 Broker's Commission .......................................................................... ............................................... 5 Section 18.10 Invalidity; Severability ......................................................................... 3 ............................................... Section 18.11 Time of the Essence ............................................................................ 36 ............................................... Section 18.12 Applicable Law.... ................................................................................. 36 ............................................... Section 18.13 Waiver ................................................................................................. 36 ............................................... Section 18.14 Accord and Satisfaction.. .................................................................... ............................................... 36 Section 18.15 Corporate Tenants. . ............................................................................. ........................... ................... 36 Section 18.16 Recording ............................................................................................. .................:.............................36 Section 18.17 Agent of Landlord; Service Providers ............................................... ............................................... 36 Section 18.18 Finalization of Charges....... ................... I ............................................ ....... ....................................... 37 Section 18.19 ......... Financial Information..... :........................................................... ............................................... 37 Section 18.20 Tenant's Guarantor .............................................................................. ...............................................37 Section 18.21 Notice to Mortgagee; Performance of Landlord's Obligations....... .. ............................................. 37 Section 18.22 Unavoidable Delays ............................................................................. ...........:...................................37 Section 18.23 Prior Lease ........................................................................................... ...............................................37 Section 18.24 Anti-Terrorism Law ............................................................................. ................................................38 Section 18.25 Waiver of Jury Trial ............................................................................ ................................................ 38 Section 18.26 Confidentiality ..................................................................................... ................................................38 Section 18.27 Entire Agreement.... ............................................................................ ................................................ 38 Section 18.28 Submission of Lease to Tenant ........................................................ ................................................ 39 Section 18.29 Acknowledgement........ ...................................................................... ................................................39 EXHIBIT A: PLA N OF THE SHOPPING CENTER ............................................................. ................................................41 EXHIBIT B: UTILITIES ........................................................................................................ ................................................42 EXHIBIT C: HEATING, VENTILATING, AND AIR-CONDITIONING .................................. ................................................43 EXHIBIT D: GUARANTEE OF LEASE ............................................................................... ................................................44 NestleTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins= 2 THIS LEASE AGREEMEN 'Lease") is made this y day of lip 2008, by and between PR CAPITAL CITY LIMITED PARTNERSHIP, a Pennsylvania limited partnership, ("Landlord") and NESTLE TOLL HOUSE CAFE BY CENTRAL PA COOKIE COMPANY, LLC, a limited liability company ("Tenant"). The Premises is located in Capital City Mall in Camp Hill, Pennsylvania ("Shopping Center"). ARTICLE 1: FUNDAMENTAL LEASE PROVISIONS AND DEFINITIONS Section 1.01 Fundamental Lease Provisions. Certain Fundamental Lease Provisions are presented in this Section and represent the agreement of Landlord and Tenant, subject to definition and elaboration elsewhere in this Lease. (a) (b) (c) (d) Premises: Unit No. FK 3, a kiosk containing approximately 196 square feet of floor area and having dimensions of approximately 14 feet by 14 feet. Rent Term and Expiration Date: One hundred twenty (120) months, expiring on the last day of the one hundred twentieth (120'") month following the Rent Commencement Date (the "Expiration Date"). Minimum Rent: Time Period Rent Commencement Date through the 60th month From the 61" month through the end of the Term Percentage Rent: Time Period Rent Commencement Date through the 60th month From the 61 st month through the end of the Term Annual Amount $35,000.00 $40,000.00 Annual Break Point $583,333.33 $666,666.67 Monthly Amount $2,916.67 $3,333.33 Percentage Rate Eight Percent (8%) Eight Percent (8%) (e) Rent Commencement Date: The earlier of (i) the date on which Tenant initially opens its business to the public in the Premises or (ii) thirty (30) days after Tenant receives a building permit for Tenant's Work but only if Tenant applies for such building permit within three (3) business days after Landlord approves Tenant's Final Plans and thereafter diligently pursues the issuance of such building permit to completion (the "Required Opening Date"). (f) Marketing Service Charge: Subject to the adjustments set forth in the Lease, for the first "Accounting Period" (as defined in Section 1.02) during the Rent Term, Tenant shall pay Landlord the annual amount of $3.00 per square foot of GLA of the Premises. The dollar amount set forth herein is an initial amount only for the first Accounting Period. (g) HVAC Charge: N/A HVAC Equipment Contribution Rate: N/A Sprinkler Charae: N/A (h) Taxes: For each "Tax Year" (as defined in Section 5.01), Tenant shall pay to Landlord on account of Tenant's share of any 'Taxes" (as defined in Section 5.01) an amount subject to adjustments as set forth in the Lease. Landlord estimates Tenant's share of Taxes for the first Tax Year to be $1.79 per square foot of GLA of the Premises. (i) Operating Costs: For each "Accounting Period" (as defined in Section 1.02), Tenant shall pay to Landlord on account of Tenant's share of any "Operating Costs" (as defined in Section 8.05) an amount subject to adjustments as set forth in the Lease. Landlord estimates Tenant's share of Operating Costs for the first Accounting Period to be $9.20 per square foot of GLA of the Premises. (j) Insurance Costs: For each "Accounting Period" (as defined in Section 1.02), Tenant shall pay to Landlord on account of Tenant's share of the cost of "Landlord's Insurance Costs" (as defined in Section 11.03) an amount subject to the adjustments as set forth in the Lease. (k) Tenant's Security Deposit: NIA (1) Trade Name: Nestle Toll House Cafe (m) Permitted Use: The retail sale and baking of Nestle products which shall include cookies, baked goods, including brownie bars, muffins, cinnamon rolls, croissants, soft drinks, including soda, Juicy Juice, bottled water, bottled Nesquik, frozen and iced specialties, smoothis, milkshakes; and, on an incidental basis (meaning less than ten percent (10%) of Tenant's Gross Sales), the following, collectively: (i) gourmet, brand identified brewed coffee, or (ii) espresso, espresso-based coffee drinks or coffee based drinks or (iii) freshly ground or whole coffee beans or NestieTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 2008 l Collins/CD 3 (iv) tea or tea-based drinks, nd for no other purpose whatsoever. In a ition, upon the expiration or termination of Landlord's lease (including any renewals, extensions or amendments of such lease) with Rock N' Moo, Inc., trading as Maggie Moo's Ice-Cream and Treatery, Tenant may sell an unlimited variety at a time of hard ice-cream; prior to such expiration or termination Tenant may not sell ice-cream. (n) Plan Submittal Date: February 1, 2008 (o) Construction Commencement Date: March 1, 2008 (p) Tenant Construction Allowance: N/A (q) Radius: N/A (r) Guarantor: Robert Delligatti and Sarah Delligatti, husband and wife, jointly and severally 230 Hummel Avenue Lemoyne, PA 17043 (s) Notice Addresses: Landlord: WG Park, L.P. c/o PREIT Services, LLC 200 South Broad Street The Bellevue, Third Floor Philadelphia, PA 19102 Attn: Director, Legal Copy to: PR CAPITAL CITY LIMITED PARTNERSHIP Management Office Capital City Mall 3506 Capital City Mall Drive Camp Hill, PA 17011 Attn: General Manager Tenant: Copy to: Nestle Toll House Cafe By Central PA Cookie Company, LLC Law Offices of Peter J. Russo, P.C. 230 Hummel Avenue 3800 Market Street Lemoyne, PA 17043 Camp Hill, PA 17011 (t) Tenant's Billing Address: Nestle Toll House Cafe by Central PA Cookie Company, LLC 230 Hummel Avenue Lemoyne, PA 17043 (u) Landlord's Rent Payment Address: PR Capital City Associates LP P.O. Box 92406 Cleveland, OH 44193 (v) License Of Storage Space: Landlord (referred to as "Licensor" for the provisions of this Section 1.01(v)) hereby grants to Tenant (referred to as "Licensee" for the provisions of this Section 1.01(v)) for the Term a license to occupy storage space number 8001 (the "Storage Space") as shown on Exhibit "A-1" attached hereto and containing approximately 250 square feet (the "License"). Licensor shall perform the following work ("Landlord's Work") with respect to the Storage Space: the Storage Space shall be constructed by the Landlord to comply with all applicable codes and shall be demised with gypsum board on all walls, a service door to the adjacent common corridor, a floor drain, upturned fire sprinkler heads, fluorescent strip lighting, and an electrical service within the Storage Space extended from the Landlord's closest electrical distribution center. Landlord shall substantially complete Landlord's Work within thirty (30) days after Landlord receives all applicable permits and approvals for Landlord's Work. Licensee shall take possession of such Storage Space on the date Landlord delivers possession of the Premises to Tenant with Landlord's Work substantially complete. Licensee shall pay Licensor, a fee for the License in the amount of Two Hundred Fifty Dollars ($250) per month (the "License Fee") payable monthly on or before the first day of the month. Licensee's failure to make any of the payments set forth in this paragraph shall be considered an Event of Default as provided in Section 16.01 and Licensor shall be entitled to all the right and remedies at law and in equity and as provided in Article 16 of the Lease. Licensor and Licensee acknowledge that, except as specifically set forth in this Section 1.01(v), the Storage Space shall be deemed a part of the Premises and all other references in the Lease to the Premises shall mean and refer to and be deemed to include the Storage Space. Licensor may, at its election, at any time and for any reason relocate the Storage Space to any comparable space within the Shopping Center. This License shall expire at the end of the Term. NOTWITHSTANDING ANYTHING CONTAINED IN THIS SECTION OR IN THE LEASE, LICENSOR AND LICENSEE ACKNOWLEDGE AND AGREE THAT NO LEASEHOLD INTEREST IN THE STORAGE SPACE IS CONVEYED AND LICENSEE HAS NO LEASEHOLD.NTEREST IN THE STORAGE SPACE. Section 1.02 Definitions. "Accounting Period" means the period cons $ting of twelve (12) consecutive months (except for the first and last Accounting Period as set forth below), commencing on a date solely determined by Landlord from time to time and each succeeding twelve (12) calendar month period during the Rent Term. Until notified by Landlord in writing of a change, NestleTo liHouseCafe-Capital City-Kiosk-FinalFinalFinalFinal March 7, 2008 \ Collins= 4 Accounting Period shall be a January 1 through December 31 calendar year period. The first and last Accounting Period of the Rent Term shall be prorated, if less than twelve (12) consecutive calendar months. "Additional Rent" has the meaning set forth in Section 4.07. "Agent" has the meaning set forth in Section 18.17. "Marketing Service Charge" has the meaning set forth in Section 10.02. "Common Areas" means all areas, facilities and improvements operated or provided at or in connection with the Shopping Center from time to time for the non-excipsive common use of Landlord, Tenant, and the other tenants and occupants of the Shopping Center and their employees, agents, subtenants, concessionaires, licensees, customers and other invitees as designated, made available or maintained by Landlord in or near the Shopping Center including, but not limited to, parking areas, parking facilities, approaches, traffic controls and signs, roadways, sidewalks, open and closed pedestrian walkways, curbs, storm drainage facilities, retaining walls, driveways, public transportation loading areas, delivery areas and loading platforms, parcel pickup stations, ramps, tunnels, canopies, landscaped areas, community rooms and auditoriums, offices, elevators, escalators, exits, entrances, roofs, beams, public restrooms, first-aid and comfort stations, lounges and shelters, sprinkler mains, light facilities and skylights, telecom facilities, utility lines, utility rooms, sanitary systems, water filtration and/or treatment facilities, service areas, fire exits, corridors, and malls. "Excluded Areas" means portions of the Shopping Center designated as a department store or major tenant on Exhibit "A" attached hereto or used for or for use in connection with the operation of a department store (whether occupied or vacant); premises of at least 15,000 square feet of GLA leased to or occupied by a single tenant; all office space including mall management office space; all basement space; all storage spaces; all out parcels and pad sites; premises without an interior entrance to the mall; all kiosks, retail merchandising units or other temporary occupants under an agreement for a term of one (1) year or less; and all buildings shown on Exhibit "A" which are labeled as "Excluded Area". "Food Court" means the area or areas now or in the future, if any, specifically designated by Landlord for small restaurant or other food service operations situated in the Shopping Center, including the individual premises and any seating areas located therein and the maintenance and housekeeping areas primarily serving the Food Court. The term "Food Court" includes the same as reduced, expanded or otherwise altered from time to time. "Governmental Requirements" has the meaning set forth in Section 7.07. "Gross Leasable Area" or "GLA" means the square feet of floor area in fully enclosed buildings which are erected on portions of the Shopping Center (other than Excluded Areas) which are occupied pursuant to an agreement with Landlord or its Agent unless as otherwise specifically set forth in this Lease. The GLA of the Premises shall be the area referred to in the Fundamental Lease Provisions (a) and shown on Exhibit "A" attached hereto. With respect to all leasable areas other than Tenant's Premises, GLA shall be determined by virtue of the definition contained within the lease in question. No deduction from GLA shall be made for columns, stairs, elevators, air shafts, or any interior construction or equipment. "Gross Sales" has the meaning set forth in Section 4.04. "Landlord's Insurance Costs" has the meaning set forth in Section 11.03. "Lease" means the Fundamental Lease Provisions, the Lease Agreement, and the Exhibits attached hereto. "Lease Year" means the twelve (12) full calendar months of the Term commencing with the January 1St immediately following the Rent Commencement Date and ending December 31St of such calendar year and each succeeding twelve (12) month period; provided, however, that the first Lease Year shall commence on the Rent Commencement Date and terminate on the immediately following thirty-first (31?) day of December in the Term and the last Lease Year shall terminate on the last day of the Term. "Partial Lease Year" means that portion of the Lease Term prior to the first full Lease Year or following the last full Lease Year. "Minimum Rent" has the meaning set forth in Section 4.02. "Operating Costs" has the meaning set forth in Section 8.05. "Percentage Rent" has the meaning set forth in Section 4.03. "Percentage Rent Break Point" or "Break Point" has the meaning set forth in Fundamental Lease Provision (d). "Rent" has the meaning set forth in Section 4.01. "Rent Term" has the meaning set forth in Section 3.01. "Shopping Center" means the land and improvements shown on Exhibit "A" attached hereto, as the same may hereafter be reduced, expanded or otherwise altered from time to time. The purpose of the plan attached hereto as Exhibit "A" is solely to show the approximate location of the Premises and the present configuration of the Shopping Center, but Landlord does not warrant or represent to Tenant that the Shopping Center and the occupants therein will continue to exist in the configuration as shown. Landlord may at any time, and from time to time, eliminate land from, or add to or substitute for land of the Shopping Center,or any part thereof, or eliminate, add, relocate or substitute any improvements, or change, enlarge or consent to a c>nge in the shape, size, location, number, height, or extent of the improvements to the Shopping Center or any part thereof including, without limitation, adding additional levels to any existing buildings therein, and altering buildings, parking areas, and other Common Areas. NestleToll H ouseCafe-CapitalCity-Kiosk-Fi nalFinalFinalFinal March 7, 20081 Collins= 5 "Taxes" has the meaning se forth in Section 5.01. "Tax Year" has the meaning set forth in Section 5.01. "Tenant's Work" has the meaning set forth in Section 2.03. "Term" has the meaning set forth in Section 3.01. Section 1.03 Exhibits. The following plans and special provisions are attached hereto as Exhibits, are incorporated herein and are hereby made 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 and the Excluded Areas. Exhibit A-1 Storage Space. Exhibit B Utility Consumption and Payment Exhibit. Exhibit C Tenant Heating, Ventilating and Air Conditioning Exhibit. Exhibit D Guarantee of Lease (the "Guarantee"), if applicable. Section 1.04: RESTAURANT INSTALLATIONS. Tenant shall provide at its own cost and expense automatic sprinkler protection and C02 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 accommodate all of the containers, straws, paper plates, etc. used or consumed by patrons of Tenant's business in the Premises. Section 1.05: FRANCHISE REPRESENTATION. Tenant represents, warrants and agrees that (i) it has entered into a franchise, distribution, dealership or purchasing arrangement for the sale of the Nestle baked goods line of products and the use by Tenant of the trade name set forth in the Fundamental Lease Provisions, and (ii) said arrangement is in full force and effect and all conditions to the effectiveness or continuing effectiveness thereof have been complied with by Tenant. Tenant shall maintain said rights in good standing and in full force and effect throughout the Term of this Lease and shall comply with all of the terms and conditions thereof required to be performed by Tenant. In the event such arrangement and right to sell and use such trade name is terminated for any reason, then Landlord may terminate this Lease by providing written notice to Tenant, which notice shall provide that this Lease shall be terminated one hundred twenty (120) days after the delivery of such notice. Tenant shall furnish Landlord with copies of any notices received relative to such arrangement. Notwithstanding anything contained herein to the contrary, provided Tenant does not interfere with the adjoining businesses or impede the flow of pedestrian traffic in the Common Areas, Tenant shall have the right to offer samples of its food products and copies of its menu only in front of and within five (5) feet of the Premises, provided further that Tenant shall keep such area free and clear of any debris resulting from such sampling. Landlord agrees to use reasonable efforts to send a courtesy simultaneous notice of any amendment of this Lease or Tenant's default hereunder to Crest Foods, Inc. located at 1900 Preston Road, Suite 267-314, Plano, Texas 75093, but the failure to do so shall not invalidate any notice correctly sent to Tenant named herein at Tenant's notice address. Nesquik Bunny: Tenant shall be allowed to have the Nesquik Bunny make appearances within five (5) feet of the storefront lease line of the Premises, provided such activity is done in a professional manner, is done in accordance with the rules and regulation of the Shopping Center, does not cause a disturbance, and is.not done more than twelve (12) times in any Year. Landlord agrees Tenant shall be solely responsible for payment of all Rent under this Lease. ARTICLE 2: PREMISES, TENANT'S WORK, AND RELOCATION "A Section 2.01 Premises. Landlord hereby demises and leases to Tenant and Tenant hereby rents from Landlord those certain Premises now existing or hereafter to be erected in the Shopping Center as shown on Exhibit "A" attached hereto. Landlord NestieToll HouseCafe-CapitalCity-Kiosk-Fi nalFinalF inalFinal March 7, 2008 \ Collins= 6 reserves the right to install, maintai , use, repair, and replace pipes, ductwork, ables, conduits, plumbing, vents, utility lines and wires in, through, above and below the Premises, in the column space, and in and under the floor slab, except that Landlord shall not materially adversely interfere with Tenant's business operations within the Premises. Notwithstanding that the kiosk shall for some purposes be deemed personal property, unless otherwise specifically provided for, whenever in this Lease the words "Premises" is used in this Lease, it shall include the kiosk within its meaning. Section 2.02 Delivery of Premises. (a) As Is. Tenant acknowledges that it has had the opportunity to examine the Premises and hereby agrees to accept the Premises in the "as is" condition in which it exists on the date Landlord turns over the key to the Premises to Tenant or Tenant's designee. Tenant further acknowledges that Landlord has not made any representations as to the present or future condition of the Premises, except that Landlord's Work shall be done in a good and workmanlike manner, or what items, if any, the prior occupant of the Premises is required to or may leave therein. (b) Notices of Availability and Possession. The Premises shall be considered available to Tenant when Tenant receives Landlord's written notice of availability of the Premises ("Notice of Availability"). Upon Tenant's receipt of the Notice of Availability, Tenant shall have only limited access to the Premises for purposes of inspection and space verification. The Notice of Availability shall not constitute delivery of the Premises and Landlord shall retain possession of the Premises until the earlier of the date Landlord delivers possession to Tenant by a notice of possession ("Notice of Possession") or upon the Construction Commencement Date, at which time Tenant shall have access to the Premises for all purposes set forth in this Lease. In the event Landlord has delivered a Notice of Availability to Tenant but has not approved Tenant's Plans, delivery of possession of the Premises to Tenant shall not occur until Landlord has delivered to Tenant a Notice of Possession. (c) Delay. Landlord shall not be liable in the event the existing occupant of the Premises fails to vacate timely, except that any delay in Tenant's occupancy due to the failure by the prior occupant to vacate shall extend the Construction Commencement Date and the Required Opening Date specified herein for a period equal to the number of days between the Construction Commencement Date and the date the former occupant vacates; provided that if physical possession of the Premises is not available by a date which is one (1) year from the Construction Commencement Date, Landlord or Tenant may terminate this Lease upon thirty (30) days notice to the other; in which event, this Lease shall be null and void and neither party shall have any liability hereunder to the other. Furthermore, Tenant releases Landlord and Landlord's contractors from any claim for damages against Landlord or Landlord's contractors for any delay in the date on which the Premises shall be ready for delivery to Tenant. Section 2.03 Tenant's Work and Tenant's Plans. (a) Tenant's Work. Tenant shall perform all work required to construct and install the kiosk and to adapt the same for the Permitted Use (herein called "Tenant's Work"). Tenant shall commence Tenant's Work on or before the Construction Commencement Date. Tenant shall design the kiosk and Tenant's Plans in accordance with Landlord's current store design criteria booklet (herein called "Tenant Design Criteria"), a copy of which Tenant acknowledges it has received, and comply with all requirements set forth therein. In the event of any inconsistencies between the text of this Lease and the Tenant Design Criteria, the Tenant Design Criteria shall prevail. Tenant's Work shall be performed (i) in accordance with all necessary governmental approvals and permits, which Tenant shall obtain at its sole expense, (ii) in accordance with Landlord's Tenant Design Criteria and all applicable Governmental Requirements (as defined in Section 7.07), (iii) without interfering with the use, occupancy or enjoyment of any part of the Shopping Center, (iv) without obstructing access to the premises of any other occupant of the Shopping Center or obstructing Common Areas, and (v) in a good and workmanlike manner and diligently prosecuted to completion. Tenant shall repair all items damaged as a result of the performance of Tenant's Work promptly upon the occurrence of such damage and shall at all 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. Any construction work performed by Tenant without Landlord's consent shall be returned to its original condition at Tenant's expense upon Landlord's request. Tenant shall not penetrate the floor slab of the Premises. (b) Tenant's Plans. On or before the Plan Submittal Date, Tenant shall submit to Landlord's tenant coordinator (herein called "Tenant Coordinator") for Landlord's approval, plans (herein called "Plans") specifying each aspect of Tenant's Work, including the following items: (i) a colored rendering of the proposed storefront and signs, including an internally-illuminated, individually lettered sign (or other type of sign as specified by Landlord) above the storefront and professionally lettered Trade Name signs and sign shop drawings, (ii) sample materials to be used in the kiosk and signs, (iii) photographs of fixtures to be used, (iv) the floor plan of the Premises, and (v) mechanical, plumbing, sprinkler, and electrical drawings, if any. Tenant shall prepare its Plans in accordance with the Tenant Design Criteria and in compliance with all applicable Governmental Requirements. Tenant's Plans shall be prepared by a licensed architect or engineer, as applicable. After receipt of Tenant's Plans, Landlord shall return the Plans to Tenant marked "approved," "approved as noted," or "not approved". Landlord shall make a good faith effort to review and comment on Tenant's Plans within six (6) business days of receipt. If marked "not approved", Landlord shall note the reasons for disapproval. On or before ten (10) days after Tenant's receipt of the "not approved" Plans, Tenant shall resubmit to the Tenant Coordinator revised Plans addressing the objections. Landlord shall return the Plans to Tenant marked as set forth above and Tenant shall, within an additional ten (10) day period, resubmit revised Plans until the same have been "approved as noted" or "approved". If Landlord accepts Tenant's Plans as "approved" or "approved as noted", Tenant need not resubmit the Plans, but Tenant shall revise such Plans to incorporate Landlord's required changes and Tenant covenants that Tenant's Work shall comply with the notes disclosed on such "approved as noted" Plans. Landlord's Work ("Landlord's Work") shall ilude the following minimum work to the entire Premises: 7. 1. Landlord will extend water, electrical, telephone and sewer to the Premises at Landlord's expense. (c) Plan Review Fee. Together with Tenant's submission of its Plans, Tenant shall pay to Landlord the sum NestleTollHouseCafe-CapitalCity-Kiosk-Final FinalFinalFinal March 7, 20081 Collins/CD 7 of'Five Hundred and 00/100 Dollars500.00) to defray the cost of reviewing Tenant's Plans. (d) Insurance/Building Permit. On or before the Construction Commencement Date, Tenant shall-deposit with Landlord certificates of insurance as required in Article 11 and the Tenant Design Criteria, as well as a copy of Tenant's building permit. Tenant shall be responsible for any damage resulting from Tenant's Work, including damages to the Shopping Center, the Premises, and the premises of other tenants. Landlord shall not be required to insure, reconstruct, or reinstall any of Tenant's Work. (e) Mandatory Remodel. If the Term is in excess of seventy-two (72) months, Tenant will remodel the Premises within ninety (90) days before or after the fifth (5th) anniversary of the Rent Commencement Date at Tenant's sole cost and expense. Such remodeling shall include, refinishing, renewing and/or replacing the wall coverings, lighting, fixtures, furnishings, equipment and other trade fixtures of the kiosk, in Landlord's reasonable judgment, all other work necessary to put the kiosk in a state of appearance and condition conforming to Landlord's then-current standards for retail tenants of the Shopping Center. (f) Alterations by Tenant. Tenant shall not perform any construction or make any alterations (including painting, decorating, changing the architectural treatments, fixtures, decor, or appearance of any part of the kiosk, penetration through any roof, floor or exterior or corridor wall) in or to any part of the kiosk at any time without first obtaining Landlord's written approval and will remove promptly, upon Landlord's request, any such alterations made without Landlord's written approval. Tenant shall not, without having obtained Landlord's prior written consent, perform any work whatsoever to the kiosk, or to areas reserved to Landlord or excluded from Tenant in the Tenant Design Criteria or Shopping Center regulations. Any damage to the kiosk or to any person or property occurring as a result of a breach of this provision shall be the sole responsibility, cost, and expense of Tenant. Notwithstanding the foregoing, Tenant shall be permitted to make nonstructural alterations to the kiosk not to exceed Five Thousand Dollars ($5,000.00) during any twelve (12) month period without Landlord's written approval, but with at least ten (10) days written notice to Landlord, provided that Tenant provides waivers and/or releases as set forth in Section 2.04 below. Furthermore, Tenant shall make, at Tenant's own cost and expense, all additions and alterations to the Premises ordered or required by any Governmental Requirements, whether in order to meet the special needs of Tenant, or by reason of the occupancy of Tenant or Tenant's Permitted Use, or otherwise; provided, however, Tenant shall not be required to make structural alterations to the Premises or the building in which the Premises is located unless made necessary by reason of the nature of Tenant's business, or the manner of operation thereof, or work performed in the Premises by or on behalf of Tenant. (g) The provisions of this Article 2 shall apply with respect to Tenant's Work, any remodel or alterations, or any other work performed by Tenant in or about the Premises at any time during the Term. Section 2.04 Mechanic's and Construction Liens. (a) Generally. Tenant shall not permit, and in no event shall Landlord or Landlord's interest in the Premises and/or the Shopping Center be liable for or subject to any mechanic's, materialman's, laborer's, or construction lien ("Lien") for any of Tenant's Work, any remodel or alterations, or any other work performed or materials supplied by or on behalf of Tenant ("Lienable Work") at any time during the Term. (b) Prior Waiver of Lien. To the extent permitted under applicable law, Tenant, for itself and all those parties providing Lienable Work, hereby waives the right to hold, claim, assert, file or enforce any Lien whatsoever against the Premises and/or the Shopping Center. Prior to the commencement of any Lienable Work (including delivery of materials), Tenant shall cause its general contractor (and any subcontractors and sub-subcontractors, if Landlord so requests) to execute and file in the Clerk's or Prothonotary's Office for the County in which the Shopping Center is located a waiver of the right to file mechanic's liens against the Premises and the Shopping Center in a legally enforceable form approved by Landlord ("Waiver of Liens"). The Waiver of Liens shall provide, to the extend permitted under applicable law, that the general contractor for itself and all of its subcontractors, sub-subcontractors, materialmen, and suppliers waives any and all lien rights that it may have against Landlord's estate, right, title and interest in any part of the Premises and/or Shopping Center. (c) Posting of Non-Responsibility. Landlord shall have the right to post or keep posted at or. near the Premises notices of non-responsibility for any construction, alteration, or repair of the Premises by Tenant. (d) Discharge or Satisfaction of Lien. In the event a Lien is made or filed, Tenant shall cause the Lien to be satisfied or discharged of record, whether by bond or otherwise, within fifteen (15) days after written request by Landlord. If Tenant shall fail to cause such lien or claim of lien to be satisfied or discharged within the period aforesaid, such failure shall be deemed an Event of Default and, in addition to any other rights or remedies Landlord may have under this Lease, Landlord may, but shall not be obligated to, satisfy or discharge the Lien either by paying the amount claimed to be due or by procuring the satisfaction or discharge of the Lien or claim of Lien by payment, deposit, or bonding proceedings and, in any such event, Landlord shall be entitled (if permitted by applicable state law) to compel the prosecution of any action for the foreclosure of the Lien or claim of Lien by the lienor with interest, costs and expenses. All costs and expenses incurred (including, but not limited to, reasonable attorneys' fees) and/or amounts paid by Landlord in connection therewith or in connection with insuring title to the Shopping Center or any interest herein free of such Lien or claim of Lien, together with a Late Charge (as set forth in Section 4.08) charged from the respective dates of Landlord's making the payment and/or incurring the cost and expense, shall constitute Additional Rent payable by Tenant to Landlord on demand. Section 2.05 Opening of Premises, Failure to Open/Operate. (a) Opening of Premises. Tenant agre to complete or cause to be completed Tenant's Work and the installation of fixtures, equipment and merchandise and to open its business to the public in the Premises no later than the Required Opening Date (as specified in the Fundamental Lease Provisions). NestleToliHouseCafe-CapitaiCity-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins/CD 8 F (b) Failure to ODenlOp ate. If Tenant fails to open its business to the public in the Premises on or before the Required Opening Date, or fails to continuously operate its business in accordance with the terms of this Lease, or vacates the Premises prior to the expiration of the Term, Landlord. will suffer damages in an amount which are not readily ascertainable and, in any such event, Landlord shall have the right to collect (as liquidated damages and not as a penalty) one-thirtieth (1130th) of an amount equal to the monthly installment of Minimum Rent for each day that Tenant fails to operate, in addition to all other Rent and charges which are due hereunder. Any and all sums payable by Tenant to Landlord pursuant to the immediately preceding sentence shall be paid on demand and shall in no way relieve Tenant from any of its obligations under this Lease, including the obligation to open and operate its business in the Premises, and Landlord shall have all other rights and remedies under this Lease, at law and in equity, arising from Tenant's failure to open and operate pursuant to this Section. Section 2.06 Relocation of Premises. (a) Right to Relocate. Notwithstanding anything to the contrary contained in this Lease, in connection with any expansion, renovation, re-merchandising, rearrangement or change in size or configuration of any part of the Shopping Center, Landlord shall have the right on one or more occasions to require Tenant to relocate Tenant's kiosk to another kiosk location designated by Landlord ("Relocated Premises"), but only under each of the following conditions: 1. The square footage and the Mall frontage of the Relocated Premises shall be no less than the Premises. 2. Minimum Rent, Annual Break Point, and other charges or pass-throughs payable under the Lease shall not be increased as a result of Landlord's requiring Tenant's relocation, notwithstanding that the Floor Area of the Relocated Premises may be larger than the Floor Area of the Premises. 3. Landlord shall effect the relocation of Tenant's business so that Tenant will not have to cease operations during Tenant's normal business hours and such relocation will not occur during the period of October 15 to January 15 of any year during the Lease Term. If relocation does require Tenant to close doing business, Minimum Rent and Additional Rent shall abate during such period. 4. Landlord, at Landlord's cost and expense, shall make all improvements to the Relocated Premises and shall move Tenant and Tenant's inventory, furniture, trade fixtures, equipment and signage. Landlord shall also pay for all soft costs associated with legal, architect and any other out of pocket costs paid to third parties associated with relocation, provided Landlord receives written evidence reasonably satisfactory to Landlord documenting such costs. 5. Landlord shall pay any incidental costs of moving up to One Thousand Five Hundred Dollars ($1,500.00). Landlord shall advise Tenant in writing ("Relocation Notice") as to the location of the Relocated Premises and the date by which Landlord will require Tenant to relocate. Within thirty (30) days of Tenant's receipt of Landlord's Relocation Notice, Tenant shall advise Landlord in writing whether Tenant agrees to relocate to the Relocated Premises in accordance with the provisions of this Section. (b) Right to Cancel. In the event Tenant fails to notify Landlord that Tenant will or will not relocate within the aforesaid time frame or Tenant refuses to relocate, then, at any time thereafter, Landlord may cancel this Lease upon sixty (60) days prior written notice to Tenant ("Cancellation Notice"), in which event this Lease will expire on such date as set forth in the Cancellation Notice ("Cancellation Date") as though the Cancellation Date was fixed as the expiration date of this Lease. Tenant shall vacate the Premises and surrender possession to Landlord on or before the Cancellation Date in accordance with the terms of this Lease, and Landlord shall have no liability to Tenant as a result of such cancellation, except as set forth in this Section. If Landlord sends the Cancellation Notice and Tenant vacates as set forth herein, Landlord shall pay to Tenant the unamortized net cost of Tenant's leasehold improvements to the Premises paid for by Tenant, exclusive of any construction allowance which has been paid to Tenant and the value of any construction reimbursements that have been waived by Landlord, such amortization to be determined with reference to Tenant's federal income tax returns, but in no event more than an amount based on straight-line depreciation over the Rent Term ("Unamortized Net Cost"). Tenant shall deliver to Landlord reasonably detailed evidence substantiating the Unamortized Net Cost and, upon Landlord's request, any additional information as Landlord may reasonably require in connection with the determination of the Unamortized Net Costs. Landlord will pay to Tenant the Unamortized Net Cost within the later of thirty (30) days after Tenant vacates the Premises or thirty (30) days of receipt of the information requested by Landlord, if Landlord requests such information, so long as Landlord is in agreement with Tenant with regard to the amount of such payment. (c) Preparation of Relocated Premises. If Tenant agrees to relocate pursuant to the Relocation Notice, Landlord shall pay the cost of (i) preparing the Relocated Premises to accept Tenant's kiosk; and (ii) moving and reinstalling Tenant's kiosk. Tenant shall be responsible for moving its inventory. (d) Amendment. At Landlord's request, the parties shall enter into an amendment to this Lease which shall confirm the area and size of the Relocated Premises. The Minimum Rent and Percentage Rent Break Point shall be amended automatically to bear the same relationship to the Minimum Rent and Percentage Rent Break Point presently set forth in the Lease as the existing area of the Premises bears to the area of the Relocated Premises. (e) Remedy. Tenant agrees that the execution of the lease amendment or its receipt of the Unamortized Net Cost payment shall be Tenant's sole remedy in the event Tenant is required to surrender possession of the Premises as provided in this Section. ARTICLE 3: TERM Section 3.01 Length of Term. The term of this Lease (sometimes herein c ed the 'Term") means the period of the "Interim Term" followed immediately by the period of the "Rent Term." The Interim Term" means the period commencing on the date of this Lease and ending on the date immediately preceding the Rent Commencement Date. The "Rent Term" means the period commencing on the Rent Commencement Date and ending on the Expiration Date (both as defined in NestleToliH ouseCafe-CapitalCity-Kiosk-F inalFinalFinalFinal March 7, 20081 Collins/CD 9 Fundamental Lease Provisions), a xtended pursuant to Section 3.03 orb agreement executed b Land by by lord and Tenant, or as sooner terminated as provided herein, as the case may be. If not sooner terminated as herein provided, this Lease shall terminate on the Expiration Date without the necessity of notice from Landlord or Tenant. Entry by Tenant to the Premises prior to the Rent Commencement Date shall be subject to all of the provisions of this Lease other than the duty to pay Rent, except that Tenant shall pay for all utilities and services supplied to it during such period. Section 3.02 Delivery upon Term Expiration. Tenant shall deliver up and surrender to Landlord possession of the Premises and kiosk upon the Expiration Date or earlier termination of the Term, broom clean, free of debris, in good order, condition and state of. repair, and in compliance with Article 14 (excepting Landlord's obligations under this Lease, damage by casualty, and ordinary wear and tear). Furthermore, Tenant shall deliver the keys to the Premises to the Shopping Center management office or to such other place as Landlord may designate and shall notify Landlord in writing of all combinations of locks, safes and vaults in the Premises. Section 3.03 Effect of Holding Over. (a) Holdover. If Tenant or any party claiming under Tenant remains in possession of the Premises or any part thereof after the Expiration Date or earlier termination of this Lease (a "holdover"), no tenancy or interest in the Premises shall result therefrom, such holdover shall be an unlawful detainer, and all such parties shall be subject to immediate ouster and removal. In the event of holdgver, Tenant shall pay liquidated rent to Landlord upon demand in an amount equal to all Percentage Rent and Additional Rent plus double the Minimum Rent for such holdover period; and Tenant shall indemnify and hold harmless Landlord from all loss, cost, expense and liability whatsoever resulting from such holdover including any claims made by any succeeding tenant due in whole or in part to Tenant's holdover. (b) Good Faith Negotiations. Notwithstanding the foregoing, • in the event Landlord and Tenant are conducting good faith negotiations to extend the Term or to enter into a new lease for the Premises, Tenant shall continue making all payments at one hundred percent (100%) of the Rent (including Additional Rent) payable as of the last month of the Term. Upon execution of an agreement to extend the Term or upon the execution of a new lease for the Premises, Tenant shall retroactively pay the increase in Rent, if any, as set forth in such agreement to extend the Term or new lease. In the event good faith negotiations between the parties cease, or in the event Landlord in Landlord's sole discretion decides not to renew the Term, and if upon ten (10) days notice from Landlord, Tenant (or any party claiming under Tenant) refuses to surrender the Premises to Landlord, Landlord shall have the option to charge Tenant the liquidated rent set forth in paragraph (a) above from the expiration of such ten (10) day notice until such time as Landlord obtains possession of the Premises from Tenant. ARTICLE 4: RENT Section 4.01 Tenant's Agreement To Pav Rent. For the right of use and occupancy of the Premises during the Rent Term, Tenant hereby agrees to pay Minimum Rent, Percentage Rent, and Additional Rent (collectively referred to herein as "Rent") at the times and in the manner provided in this Lease. All Rent shall be paid in United States currency and shall, if other than cash, be drawn on a United States bank. Landlord may accept any payment of Rent by Tenant of a lesser amount than shall be due from Tenant without prejudice to any rights or remedies which Landlord may have against Tenant. Any endorsement or statement on any check accepted by Landlord or any statement in correspondence accompanying such check that acceptance of such lesser amount is payment in full shall be given no effect. Section 4.02 Minimum Rent. (a) Minimum Rent. Tenant shall pay to Landlord a guaranteed annual minimum rent ("Minimum Rent") as set forth in the Fundamental Lease Provisions, which shall be due and payable in twelve (12) equal monthly installments, in advance, on the first day of each calendar month of the Rent Term at Landlord's Rent Payment Address. Tenant shall pay the first installment on the Rent Commencement Date whether or not such date is the first day of a calendar month. (b) Proration. In the event that the Rent Commencement Date shall be a day other than the first day of a calendar month, Tenant's first payment of Minimum Rent shall be prorated for the fractional month between the Rent Commencement Date and the first day of the first full calendar month in the Rent Term, on a per diem basis (calculated on the actual number of days in the month), and Tenant shall pay such amount in advance on the Rent Commencement Date. If the Minimum Rent increases during the Rent Term, for the purpose of determining the date on which Minimum Rent increase(s) become effective, a partial month shall be disregarded. (c) Expansion Increase. If a new anchor, department store, or major tenant is added to the Shopping Center or if the Shopping Center is expanded by more than 50,000 square feet, Tenant agrees that Tenant's Minimum Rent shall be increased by fifteen percent (15%) upon the date each such anchor, department store or major tenant or expanded Shopping Center first opens for business. Landlord agrees that the Break Point also shall be increased by fifteen percent (15%). (d) Allocation to Marketing Service. At Landlord's discretion, Landlord may allocate a portion of Tenant's Minimum Rent to fund the Marketing Service (as described in Article 10) which may be in operation at the Shopping Center, regardless of whether Tenant pays a Marketing Service Charge, at no increase in Minimum Rent to Tenant. Section 4.03 Percentage Rent. (a) Percentage Rent. In addition to Nimum Rent, during the Rent Term, Tenant shall pay to Landlord percentage rent ("Percentage Rent") as determined by this Article 4. Percentage Rent for each Lease Year shall be an amount equal to the Percentage Rate (set forth in the Fundamental Lease Provisions) multiplied by the amount of Gross NestleToli HouseCafe-Capital City-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins/CD 10 Safes made during such Lease *ear in excess of the applicable Break Point set forth in the Fundamental ( Lease Provisions). Each payment of Percentage Rent shall be paid by Tenant to Landlord at the times set forth herein, at the place then fixed for the payment of Minimum Rent, together with Tenant's Monthly Report of Gross Sales (as defined below). (b) Proration. In the event that the first or last Lease Year shall consist of fewer than twelve (12) full calendar months or if during a certain Lease Year or Partial Lease Year Minimum Rent has been wholly abated for a period of time, then the applicable Break Point set forth in the Fundamental Lease Provisions shall be multiplied by a fraction, the numerator of which is the number of days in such Partial Lease Year for which the Minimum Rent was payable and the denominator of which is three hundred sixty-five (365). In the event the Minimum Rent shall be partially abated (rather than wholly abated) for a period of time in any Lease Year or Partial Lease Year, the Break Point shall be reduced proportionately. (c) Payment. In each Lease Year or Partial Lease Year, as the case may be, Tenant shall be obligated to pay Percentage Rent on tenth (10t) day of the month immediately following the month during which Tenant's Gross Sales for such Lease Year or Partial Lease Year exceed the Break Point and each month for the balance of that Lease Year or Partial Lease Year. Tenant shall make such payments concurrently with the submission by Tenant to Landlord of 'the written statement of Monthly Report (as defined below). (d) Percentage Rent Adiustment. In the event the Break Point is subject to adjustment during the Term and the date on which any such adjustment is to occur (hereafter referred to as the "Rental Adjustment Date") is other than the first day of a Lease Year, the Break Point for the Lease Year in which the Rental Adjustment Date shall fall shall be the sum of: (i) the initial Break Point multiplied by a fraction the numerator of which shall be the number of days in the period commencing on the first day of the Lease Year in which the Rental Adjustment Date shall fall and ending on the day immediately prior to the Rental Adjustment Date land the denominator of which shall be three hundred sixty-five (365), plus (ii) the later Break Point multiplied by a fraction, the numerator of which shall be the number of days in the period commencing on the Rental Adjustment Date and ending on the last day of the Lease Year in which the Rental Adjustment Date shall fall and the denominator of which shall be three hundred sixty-five (365). Section 4.04 Gross Sales. (a) Definition of Gross Sales. The term "Gross Sales" means the amount of the sales price of all merchandise, wares and other goods sold (including gift and merchandise certificates/cards when redeemed), leased, rented or licensed, and the actual charges for all services performed, business conducted by Tenant and by any subtenant, licensee, concessionaire and other occupant in, at, from, or arising out of the use of the Premises, whether wholesale or retail, whether for cash or credit, or otherwise, and including the value of all consideration other than money 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 originate in, at, from or arise out of the use of the Premises, whether delivery or performance is made from the Premises or elsewhere; or (ii) made or performed by mail, telephone, Internet, telecopy, fax, website or similar means and orders received, filled or delivered in, at or from the Premises; or (iii) made or performed by means of telephonic, mechanical or other vending means or devices in or for the Premises; or (iv) which Tenant, and any subtenant, licensee, concessionaire or other occupant, in the normal and customary course of its business, would or does credit or attribute to its operations at the Premises or any part thereof. Gross Sales shall include any deposit accepted and retained by Tenant. Each installment or credit sale shall be treated as a sale for the full price in the month during which such sale is made, regardless of whether or when Tenant receives payment. No franchise, value added tax, capital stock tax, tax based upon assets or net worth or gross receipt tax, and no income or similar tax based on income or profits shall be deducted from Gross Sales. (b) Gross Sales Exclusions. Only the following shall be excluded from Gross Sales, provided Tenant supplies records supporting such exclusions: (i) exchanges of merchandise between Tenant's stores made solely for the convenient operation of Tenant's business and not to consummate a sale made in, at or from the Premises; (ii) returns to suppliers, shippers or manufacturers; (iii) cash or credit refunds to customers on transactions otherwise included in Gross Sales; (iv) sales of fixtures, machinery and equipment, which are not stock for sale or trade, after use in the conduct of Tenant's business in the Premises; (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) sales to employees at a discount, not to exceed one percent (1 %) of annual Gross Sales; and (vii) cash from permitted pay telephone and vending machine for the exclusive use by Tenant's employees. (viii) sales of gift certificates (until same are redeemed); (ix) exchanges of merchandise between Tenant and stores of Tenant's franchisor and stores of franchisees of Tenant's franchisor; (x) sales of trade fixtures; (xi) service, finance or interest charges imposed by third party credit card issuers with respect to credit sales to customers; (xii) discounts and allowances to customers; (xiii) freight and delivery charges'1nd any service rendered approximately at cost for the convenience of customers; (xiv) gift wrap; and (xv) if after a sale has been included in Gross Sales it is written off as a bad debt, the unpaid amount NestleToll H ouseCafe-Capital City-Kiosk-FinalFinalFinalFina' March 7, 20081 Collins/CD 11 of`said sale may be deducted from any statement of Gross Sales made after the said sale is written off as a bad debt, but shall be included again in later statements if later collected. Section 4.05 Reporting of Gross Sales; Year End Adiustment. (a) Monthly Report. Tenant shall furnish to Landlord within ten (10) days after the end of each calendar month during the Rent Term a complete statement (the "Monthly Report"), certified by Tenant (or a responsible financial officer of Tenant 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 Lease Year (or Partial Lease Year, as the case may be), including such month, (iii) the amount, if any, by which such aggregate amount of Gross Sales exceeds the Break Point, and (iv) the amount of Percentage Rent paid by Tenant to Landlord for such Lease Year (or Partial Lease Year, as the case may be). If the Rent Commencement Date shall not be the first day of a calendar month, the period between the Rent Commencement Date and the first day of the first full calendar month in the Rent Term and Tenant's Gross Sales during such period shall be added to the first calendar month for both the purpose of the computation of Percentage Rent and the purpose of reporting of Gross Sales. (b) Yearly Report. Tenant will also furnish to Landlord within sixty (60) days after the end of each Lease Year a complete statement (the "Yearly Report") certified as a full, complete, and accurate report by Tenant's chief financial officer, showing in reasonable detail the amount of Gross Sales during such Lease Year and the amount of Percentage Rent paid to Landlord for such Lease Year. (c) Delivery of Reports. The reports required by this Section shall be delivered to Landlord's Notice Addresses or to another person and/or place as Landlord may designate from time to time. If Tenant shall fail to deliver any Monthly Report and/or Yearly Report when due, in addition to all of Landlord's other rights and remedies hereunder, Tenant shall pay to Landlord, as Additional Rent, an amount equal to One Hundred Dollars ($100.00) per day for each day such statement is overdue. Section 4.06 Tenant's Records and Audit (a) Tenant's Records. Tenant covenants and agrees that Tenant's business records and those of any subtenant, licensee or concessionaire upon the Premises shall be maintained in accordance with generally accepted accounting principles. Tenant shall keep, at the Premises or at Tenant's home or regional office, complete and accurate books of accounts and records with respect to all operations of the business conducted in or from the Premises, including the recording of Gross Sales and the receipt of all merchandise and other goods into and the delivery of all merchandise and other goods from the Premises during the Term. Tenant shall retain such books and records, copies of all tax reports and tax returns submitted to taxing authorities, as well as copies of contracts, vouchers, checks, inventory records and other documents and papers in any way relating to the operation of such business for at least three (3) years from the end of the period to which they are applicable or, if any audit is commenced or if a controversy should arise between the parties hereto regarding Rent, until such audit or controversy is terminated even though Tenant's retention period may continue after the expiration of the Term or earlier termination of this Lease. (b) Landlord's Right to Inspect. Landlord's acceptance of Percentage Rent payments shall be without prejudice to Landlord's examination and audit rights. Tenant's books and records (including the books and records of any subtenant, licensee, concessionaire and other occupant) shall be open at all reasonable times during the aforesaid retention period to the inspection of Landlord or its duly authorized representatives, upon ten (10) days prior notice to Tenant, and Tenant shall make such books, records and other materials available at the Premises for such examination and audit at Landlord's request. Landlord and its representatives shall have full and free access to such books and records and the right to require explanation from Tenant, its agents and employees. (c) Tenant's Failure to Comply. 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 two percent (2%) or more; or (ii) Tenant has not recorded Gross Sales or kept books of accounts and records for the period required by Article 4; or (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 Lease Year, then such understatement, failure or delinquency shall be an "Event of Default" (as defined in Section 16.01). In addition, in the event of such understatement or failure, Landlord shall have the right to bill Tenant the amount of any Percentage Rent deficiency and the reasonable cost of said audit, all of which shall be paid by Tenant within ten (10) days after demand. Such deficiency will bear interest at the "Default Rate" (defined in Section 16.03) from and after the date it should have been paid until paid. (e) Remedy. In the event Tenant violates the provisions of Sections 4.06(a) or (b) and, as a result of such violation, Landlord or its authorized representative is unable to conduct a proper examination and/or audit, the parties agree that Landlord shall have been deprived of an important right under this Lease and, as a result, will suffer damages in an amount which is not readily ascertainable. Therefore, in such event, Landlord shall have the right to collect and Tenant agrees to pay, as liquidated damages and not as a penalty, an amount equal to twenty percent (20%) of the greater of (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. Such liquidated damages are in addition to and not in lieu of any other remedies (at law or in equity) which Landlord may have under this Lease. Section 4.07 Additional Rent. ,, Tenant shall pay to Landlord or a third party designated by Landlord, as additional rent all sums of any nature required to be paid by Tenant pursuant to this Lease other than Minimum Rent and Percentage Rent (herein sometimes collectively called "Additional Rent"), whether or not expressly called "Additional Rent". Section 4.08 Late/Insufficient Funds Charge. In the event Tenant fails to pay when due any installment of Rent or other sum payable by Tenant under this Lease, Landlord may charge Tenant, as Additional Rent, a "Late Charge" in the amount of the greater of (i) Two Hundred Nestle7ollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinai March 7,2008 \ Collins/CD 12 L=iffv'nnl{arc (.,t9i;n rim and hil five .'_nts (1.051 oar dollar overdue for the nuroo a of defraving Landlord's administrative expenses incident to the handling of such overdue payments. If Tenant pays any installment of Rent by check and such check is returned for insufficient funds or other reasons not the fault of Landlord, then Tenant shall pay Landlord, on demand, a processing fee of One Hundred Dollars ($100.00) per returned check plus all applicable Late Charges. If three (3) checks are returned for insufficient funds or other reasons not the fault of Landlord, all subsequent payments to Landlord by Tenant shall be in the form of either a certified or cashier's check. Section 4.09 Where Rent Payable and to Whom: No Deductions. Rent payable by Tenant under this Lease shall be paid when due without prior demand (unless such prior demand is expressly provided for in this Lease), shall be payable without any deductions or setoffs or counterclaims whatsoever (except for credits expressly permitted by this Lease), and shall be paid by Tenant to Landlord at Landlord's Rent Payment Address set forth in the Fundamental Lease Provisions or to such payee and/or at such other place as may be designated from time to time by notice from Landlord to Tenant. At the end of the Term, provided Tenant is not in default, Landlord shall refund to Tenant any amount of excess Rent paid to Landlord and any other amounts due from Landlord to Tenant. Section 4.10 Security Deposit. Deleted. ARTICLE 5: REAL ESTATE TAXES AND ASSESSMENTS Section 5.01 Taxes. (a) Taxes. Tenant shall pay to Landlord in each Tax Year, as Additional Rent, Tenant's share of all real estate and other ad valorem taxes and other assessments, impositions, excises and other governmental or quasi- governmental charges of every kind and nature (including, but not limited to, general and special assessments, special service district taxes, impact fees, sewer and fire district assessments, foreseen as well as unforeseen, and ordinary as well as extraordinary, including payments in lieu of taxes) with respect to the Shopping Center and all improvements thereon or any part thereof. Such taxes and assessments, including Landlord's reasonable costs and expenses (including statutory interest, if any) in obtaining or attempting to obtain any refund, reduction or deferral of such taxes are collectively called the "Taxes" in this Lease. (b) Tax Year. "Tax Year" shall mean the twelve (12) full calendar months of the Rent Term commencing with the January 1St immediately following the Rent Commencement Date and ending December 31St of such calendar year and each succeeding twelve (12) month period thereafter commencing in the Term; provided, however, the first Tax Year shall commence on the Rent Commencement Date and terminate on the immediately succeeding December 31St. If the Rent Term commences or terminates (other than by reason of Tenant's default) on a day other than the first or last day of a Tax Year, Tenant's Tax Charge for such Tax Year shall be equitably prorated. Landlord shall have the right to change the structure of the Tax Year to reflect the local billing customs. Section 5.02 Tenant's Tax Chagae. (a) Tax Charge. Tenant's share of the Taxes in each Tax Year (the "Tax Charge") shall be an amount equal to the amount obtained by multiplying the total of all Taxes payable during such Tax Year for the Shopping Center less all amounts paid as Taxes to Landlord by the occupants of any Excluded Areas (as defined in Section 1.02) by a fraction, the numerator of which shall be the GLA of the Premises and the denominator of which shall be the average of the total amount of square feet of the GLA of the Shopping Center in effect on the last day of each calendar month of the Tax Year. (b) Payment of Tax Charge. Tenant shall pay the Tax Charge as Additional Rent during the Rent Term in equal monthly installments, in advance, without demand or setoff, in an amount equal to one-twelfth (1/1e) of the amount payable on account of the Taxes payable in each Tax Year as set forth in Section 1.01(h) of the Lease multiplied by the GLA of the Premises. Landlord may revise its estimate and may adjust such monthly payment at the end of any calendar month. The first such installment shall be due and payable by Tenant on the Rent Commencement Date (prorated for the remaining number of days in the Tax Year). Thereafter, subsequent installments shall be due and payable at the beginning of each ensuing calendar month during the Rent Term. In addition to the payments provided for in the immediately preceding sentences, if Landlord shall have prepaid all or a portion of the Taxes applicable to the Rent Term prior to the Rent Commencement Date, Tenant's Tax Charge shall include Tenant's share of such Taxes on or before the Rent Commencement Date. Landlord shall send to Tenant an invoice setting forth Tenant's share of such Taxes, together with copies of receipted bills evidencing Landlord's payment of such Taxes. (c) Notification of Tax Charge. After Landlord has received the Tax bills for each calendar year, Landlord will notify Tenant of (i) the amount of Taxes on which the Tax Charge is based, (ii) the amount of any refund, reduction or deferral expenses, (iii) the total GLA of the Premises and the Shopping Center (less the Excluded Areas) on which the Tax Charge is based and (iv) the amount of the Tax Charge. If the aforesaid monthly payments on 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. Section 5.03 Tenant's Additional Tax Obligations. (a) Additional Tax Obligations. Tenan ,shall pay, before delinquent, any and all taxes, assessments, impositions, excises, fees (including any impact fees)nd other charges levied, assessed or imposed by governmental or quasi-governmental authorities upon Tenant or its business operation, or based upon the use or occupancy of the Premises, or upon Tenant's leasehold interest, value of the kiosk, trade fixtures, furnishings, equipment, leasehold improvements (including, but not limited to, those required to be made pursuant to Tenant's Work) alterations, changes Nest/ eTollHo useCafe-CapitalCity-Kiosk-F inalFinalFinalFinal March 7, 2008 \ Collins/CD 13 aritf ncirlitinns made by Tenant_ me andise and nersonal orooerty of anv kin 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 on behalf of the taxing authority, then such tax, assessment, imposition, excise or other charge shall be paid by Tenant to Landlord or Agent monthly as Additional Rent in accordance with the terms of any notice from Landlord or Agent to Tenant to such effect. The taxes, assessments, impositions, excises, fees and other charges described in this Section 5.03(a) shall be the obligation of Tenant and not Landlord or Agent and, if imposed on Landlord or Agent, Tenant shall pay the same to Landlord within thirty (30) days after receipt of each bill. (b) Inclusions. Nothing contained in this Lease shall be construed to include in Taxes any inheritance, estate, succession, transfer, gift, corporation, net income or profit tax or capital levy that is or may be imposed upon Landlord. Notwithstanding the foregoing, if any grgss receipts tax, business franchise tax, capital stock tax, business privilege tax, and/or net worth-based tax shall be payable by Landlord or Agent, Tenant shall pay the portion attributable to Landlord's receipts from this Lease. ARTICLE 6: UTILITIES Section 6.01 Services. (a) Utilities and HVAC. Tenant agrees to connect to and use the utilities, facilities, and/or services (including electricity, sewer, water treatment, water, heating, ventilation and/or air conditioning, gas, telephone, A.D.T. or other alarm system, and any other utility facility and/or service) supplied to or for the Premises by Landlord or the applicable utility company, municipality and/or other governmental body or authority supplying the utility service and to pay Landlord or the applicable utility company or other supplier thereof for such utilities. Exhibit B sets forth those utilities and Exhibit C sets forth those heating, ventilation and/or air conditioning services which shall be provided to the Premises by Landlord as well as the manner in which charges for their consumption shall be determined and paid by Tenant. Unless otherwise provided in Exhibit B or C, Landlord shall not be responsible for providing any utility or heating, ventilation and/or air conditioning service to the Premises or for providing meters or other devices for the measurement of utilities supplied to the Premises, and Tenant shall arrange for the furnishing to the Premises of such utility services as it may require, as well as for the installation of all such meters or other devices. (b) Supply. Notwithstanding the foregoing, if permitted by law, Landlord shall have the right at any time and from time to time during the Term to either contract for service from a different company or companies providing utility service (each such company shall hereinafter be referred to as an "Alternate Service Provider") or continue to contract for service from the current utility service provider. Landlord may, after thirty (30) days notice to Tenant, cease to furnish any one or more of the utility services to the Premises without any responsibility to Tenant except to connect, at Tenant's sole cost and expense, Tenant's distribution facilities with another source for the utility service discontinued. Landlord shall incur no liability to Tenant and this Lease shall not be affected in the event that any utility becomes unavailable from any source of supply or for any reason. Landlord, in its sole discretion, shall have the right from time to time to alter the method and source of supply to the Premises of electricity or any other utility, and Tenant agrees to execute and deliver to Landlord such documentation as may be required to effect such alteration, provided, however, that Tenant shall not be required to bear any portion of the cost of such alteration or to incur any additional financial obligation as a result of such alteration. (c) Capacity. Tenant shall not at any time overburden or exceed the capacity of the mains, feeders, ducts, conduits, or other facilities by which such utilities are supplied to, distributed in or serve the Premises. Section 6.02 Service Charges. (a) Service Charges. In the event any utilities used in the Premises are supplied by Landlord, Tenant shall pay to Landlord as Additional Rent at times and in the manner hereinafter set forth, charges for certain utility and heating, ventilation and/or air-conditioning services as set forth herein. Such charges are collectively called the "Services Charges". (b) Failure to Pay. If Tenant fails to make any such payment to Landlord within ten (10) days from the date payment is due, or upon failure of Tenant to pay any other sums of Rent or charges due under this Lease in full, Landlord may, without limitation, cut off and discontinue any water, energy and sanitary services furnished to or for the Premises by Landlord, without any liability to Landlord. Any action by Landlord pursuant to the provisions of this Section 6.02 shall not be construed as an eviction or disturbance of possession or an election by Landlord to terminate this Lease. (c) Interruption of Services: No Waste. Landlord shall not be liable or responsible for any loss, damage or expense Tenant may sustain or incur by reason of any change, failure, curtailment, interruption, disruption, 'brown 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 harm sanitary service. Landlord may cease to furnish any one or more of said services without responsibility to Tenant except tconnect the service facilities with such other nearby source as may be available for the services so discontinued. (d) Sprinkler Charge. Tenant agrees to pay Landlord the Sprinkler Charge as set forth in Section 1.01(g) of the Lease. Charges will be based on a per square foot basis. NestleToll HouseCafe-CapitalCity-Kiosk-Final FinalFinalFinal March 7, 2006 \ Collins/CD 14 (e) Trash and Garbage Removal. Tenant shall be solely responsible for trash and garbage removal from the Premises, including the placing of all trash and garbage in containers for such purpose. If provided, Tenant shall utilize the containers provided by Landlord or Landlord's trash removal service. In the event Landlord elects to furnish such service to Tenant itself or by contracting with a third-party vendor, Tenant agrees to use only the service provided by Landlord or its contractor, as applicable, and to pay for such service (including, without limitation, both the cost of leasing containers and the cost of removal) monthly, either as Additional Rent paid to Landlord in accordance with a schedule of charges to be established by Landlord (which Landlord may include among the Services Charges) or, if billed directly by a third-party vendor, directory to such vendor (the "Refuse Handling Charge"). The failure to pay timely any third-party vendor for the Refuse Handling Charge shall be an Event of Default. In no event shall Tenant be obligated to pay Landlord more for such trash and garbage removal service (if Landlord is providing such service) than the prevailing competitive rates of reputable independent trash removal contractors for service similar to that provided by Landlord. Tenant shall, at its expense, comply with all trash recycling procedures in effect from time to time. Tenant shall not dispose of any Hazardous Substances or items regulated by Environmental Laws (both as defined in Section 7.07) in any trash facilities provided by Landlord; rather, Tenant shall arrange, at its sole cost and expense, to have all such items removed from the Premises and Shopping Center in accordance with all Governmental Requirements (as defined in Section 7.07). (f) Telephone. All telephone service required by Tenant for its Premises shall be obtained by Tenant and shall be installed by the appropriate utility company. All charges for telephone service (including the installation) shall be billed directly to Tenant by the utility company providing the service. Tenant shall pay to the appropriate utility company all charges as and when they become due and payable. ARTICLE 7: USE OF PREMISES Section 7.01 Sole Use and Trade Name. Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously use and operate all of the Premises for the Permitted Use and under the Trade Name set forth in the Fundamental Lease Provisions. Tenant agrees that if the Premises is used for a use or under a trade name not set forth in the Fundamental Lease Provisions without Landlord's prior written consent, such conduct shall constitute an Event of Default. Tenant shall, at its expense, procure any and all governmental licenses and permits required for the conduct of business in or from the Premises and shall at all times comply with the requirements of each such license and permit. Landlord does not represent or warrant that it will obtain for Tenant or that Tenant will be able to obtain any license or permit. Landlord consents to Tenant's changing its trade name referred to herein provided that such change is required by Tenant's franchisor and that the trade name is used in all of franchisor's other stores in the metropolitan area containing the Shopping Center. 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 (unless the Premises is rendered unfit for occupancy by reason of fire or other casualty, in which event Article 12 shall control), provided Tenant may close for remodeling for no more than three (3) business days in any Lease Year. Tenant will keep the Premises open for business to the public at least every Monday through Saturday from 8:00 am until 9:30 pm and every Sunday from 8:00 am until 6:00 pm, or as otherwise required by Landlord. In the event Tenant violates the foregoing, in addition to any other rights or remedies available to Landlord, at Landlord's option, Tenant's Break Point shall be reduced on a per diem basis for each violation of the foregoing and Tenant shall pay to Landlord the Percentage Rent so computed by Landlord. The per diem reduction shall be the amount of the applicable Break Point divided by three hundred sixty-five (365) for each violation. Tenant agrees that Landlord may change the business hours from time to time to reflect local custom or seasonal shopping patterns provided that such changes are uniformly applied to a majority of retail tenants in the Shopping Center. The requirements of this Section are subject to any and all Governmental Requirements. Section 7.03 Operational Requirements. (a) Sales. Tenant will not conduct or permit to be conducted any auction, fire, bankruptcy, going-out-of- business, or similar sale or utilize any unethical business methods; however, this provision shall not preclude the conduct of periodic, seasonal, promotional or clearance sales. (b) Nuisance Uses. Tenant will not distribute or cause to be distributed at or in the Shopping Center any handbills, notices, or other advertising. Tenant will not conduct or permit any activities that might constitute a nuisance, which are prurient, or otherwise generally not considered appropriate in accordance with Landlord's standards of operation for the Shopping Center. Notwithstanding anything contained herein to the contrary, Tenant is specifically prohibited from selling or distributing any of the following: (i) pipes of the type and nature commonly associated with marijuana smoking (e.g. "water pipes" or "bongs"), "roach clips", "cocaine spoons", and all other types of smoker's novelty items, materials or paraphernalia which are or may reasonably be construed to be intended for use in connection with narcotics or other unlawful substances; (ii) sexually explicit merchandise; and (iii) other merchandise of an offensive nature. (c) Sensory Offenses. Tenant will not Opt or permit the use of any apparatus for sound/light reproduction or transmission including loudspeakers, phonographs, radios, televisions, or any musical instrument in such manner that the sounds shall be audible beyond the interior of the Premises. Tenant will keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the confines of the Premises; will not cause or permit strong, unusual, NestleTolfHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 2008 \ Collins/CD 15 t :e offensive, or objectionable sound, CLits, odors, fumes, dust, or vapors to em a or be dispelled from the Premises. Tenant will not install any antennae or other communication equipment anywhere other than in the interior of the Premises without Landlord's prior written consent. (d) Shipping and Receiving. Tenant will not receive or ship articles of any kind except through the facilities provided for that purpose by Landlord and will not permit any delivery of goods, supplies, merchandise, or fixtures to or from the Premises through any portion of the enclosed mall unless the Premises has no entrance other than on the enclosed mall, in which case Tenant shall use its best efforts to schedule deliveries outside Shopping Center business hours, except as otherwise approved in writing by Landlord. Tenant will not permit the parking or standing of trucks, trailers, or other vehicles or equipment engaged in loading/unloading in a manner which may interfere with the use of any Common Areas or any pedestrian or vehicular use. (e) Cleanliness. Tenant will keep clean the inside and outside of all glass in the doors and windows of the Premises and will replace any cracked or broken glass with glass of the same kind, size and quality. Tenant will maintain the Premises at its own expense in a clean, orderly and sanitary. condition, free of insects, rodents, vermin, and other pests, and will use an exterminator designated by Landlord and at times designated by Landlord. Tenant will not burn or permit undue accumulation of garbage, trash, rubbish and other refuse, will keep such refuse in proper containers in the interior of the Premises until so removed from the Premises, and will (subject to Section 6.04) remove the same from the Premises to compactors or other receptacles designated by Landlord. (f) Security and Lighting. Tenant will provide or cause to be provided all security within the Premises as it deems appropriate for its licensees, invitees and employees. Tenant will also provide adequate lighting during such periods as the Premises is open for business. (g) Displays and Solicitations. Tenant will not use or permit to be used any space outside of the Premises for the display or sale or offering for sale of any merchandise or for any other business, occupation, or undertaking. Tenant will not permit the use of any portion of the Premises or Common Areas for solicitations, demonstrations or any activities inconsistent with reasonable standards of a first class shopping mall, in Landlord's reasonable determination. (h) Staff and Merchandise. Tenant will maintain at all times a full staff of employees and a complete stock of merchandise consistent with the Permitted Use and will conduct its business to maximize Gross Sales. 0) Labor Relations and Hand-Billina. Tenant will conduct its labor relations and its relations with employees in such a manner as to avoid all strikes, picketing, boycotts or hand-billing at or about the Premises and the Shopping Center. Tenant further agrees that if in connection with any work done by or for Tenant in or about the Premises there is a strike, picketing, boycotting, hand-billing or other activity objectionable to Landlord, Tenant shall remove or cause to be removed from the Premises and the Shopping Center all persons, to the extent not prohibited by law, until such strike, picketing, boycotting, hand-billing or other activity ceases and the cause thereof is settled to Landlord's satisfaction. Grease Trap and Exhaust. Deleted. (k) Plumbing. Tenant will not use the plumbing facilities for any purpose other than that for which they were constructed and will not dispose of any damaging or injurious substance therein. (1) Vending Machines. Tenant will not install, operate, or permit to be installed or operated any coin or token operated vending machine, game machine, pinball machine, pay telephone, pay locker, pay toilet, scale, amusement device, or machine for the sale of beverages, foods, candy, cigarettes or other items, except solely for use by Tenant's employees in non-sales areas and not to exceed collectively two (2) machines or devices. (m) Lawful Purposes. Tenant covenants that the Premises shall be used only and exclusively for lawful purposes. Tenant will comply with and observe all rules and regulations established by Landlord from time to time and will conduct its business in the Premises in a dignified manner. (n) Audio/Video Cassettes. Tenant will not store, display, rent, or sell any audio or video cassettes or compact discs. (o) Remodel - First Class Condition. Tenant shall maintain the Premises in first-class condition throughout the Term of the Lease and shall refurbish all worn surfaces to bring the same to like new condition, at Tenant's sole cost and expense, as same is reasonably necessary during the Term. (p) Shoppinq Carts. Tenant will not permit any shopping carts owned or leased by Tenant in the Common Areas, even if taken there by customers. (q) Smoking. Tenant will not permit smoking in the Premises. (r) Common Area. Tenant will not, without Landlord's prior written consent, place or maintain any article in the Common Area or elsewhere on the exterior of the kiosk. (s) General Appearance. Tenant specifically agrees that both the general appearance of the kiosk and the manner in which Tenant's merchandise is displayed shall meet the standards of a first-class regional shopping center. In the event that Landlord shall give written notice to Tenant of Landlord's objection with respect to either or both of the aforesaid matters and Tenant, within sixty (60) days of such written notice, fails to cure the objection to Landlord's satisfaction, Landlord shall have the right, in addition, to all other rights and remedies set forth herein, to declare Tenant to be in default of the Lease. Section 7.04 Employee Parkina Areas. Landlord, from time to time, may designate that particular portions of the Shopping Center parking areas (the NestleTollH ou se Cafe-CapitalCity-Kiosk-FinalFinalFinalFina) March 7, 2008 \ Collins/CD 16 "Employee Parking Areas") are t used by Tenant and its employees, or r individuals working at or from the Premises and, in such event, such employees/individuals shall park their vehicles only in the Employee Parking Areas. Tenant shall furnish Landlord with a list of Tenant's and employees' vehicle license numbers within fifteen (15) days after Tenant opens for business in the Premises and thereafter, at Landlord's request and within five (5) days of such request, Tenant shall notify Landlord in writing of any addition, deletion or other change to or from such list. Tenant shall notify each employee of the provisions of this Section prior to each employee commencing employment or work at or from the Premises. If Tenant's employees do not park their vehicles in the Employee Parking Areas as required, Landlord may give Tenant notice of such violation. If Tenant does not act to correct such violation within two (2) days after Landlord's notice of violation is given, Tenant shall pay to Landlord, as Additional Rent, an amount equal to One Hundred Dollars ($100.00) per day per violating vehicle. For any subsequent violations, said charge shall commence without the necessity of further notice and Landlord shall have the right to have the violating vehicles towed at Tenant's expense. Section 7.05 Signs and Advertisina. Tenant shall not place or permit to be placed on the kiosk, any sign, canopy, banner, decoration, lettering or advertising matter (collectively a "sign") without Landlord's prior written approval. Tenant shall submit to Landlord reasonably detailed drawings of its proposed signs for review and approval by Landlord prior to utilizing same; however, Tenant may, without Landlord's approval, use in the storefront professionally made, reasonably sized signs indicating prices, styles, and like information. All signs shall be insured and maintained by Tenant in good condition, operating order, and repair. Flashing signs are prohibited. Landlord shall have the right, after twenty-four (24) hours prior written notice to Tenant and without liability for damage to the Premises reasonably caused thereby, to remove any items displayed or affixed in or to the Premises or Shopping Center which Landlord determines (in its reasonable judgment) to be in violation of the provisions of this Section. Tenant will keep the storefront sign and display windows in the Premises lighted during all periods that the Shopping Center is open to the public and for thirty (30) minutes after required business hours and for such other periods as reasonably required by Shopping Center rules and regulations. Landlord consents to Tenant's use of the proprietary signs and marks distinctive designs and layouts of the Nestle Toll House Cafe System so long as such proprietary signs and marks, and designs and layouts conform to the Store Design Criteria, and upon expiration or the earlier termination of the Lease, consents to permit Tenant, at Tenant's expense, to remove all such items and other trade fixtures so long as Tenant repairs all damage caused by such removal. Crest Foods, Inc. shall have the right during the Term to enter the Premises to make any modifications or alterations, at its own cost, necessary to protect the proprietary signs and marks, distinctive designs and layouts of the Nestle Toll House Cafe System so long as Crest Foods, Inc. repairs all damage caused by such modification or alteration and to cure, within the time periods provided by the Lease, all without being guilty of trespass or other tort so long as Crest Foods, Inc, repairs all damage caused by such modification or alteration. Landlord agrees that, following the expiration or earlier termination of the Franchise Agreement, Tenant shall have the right to make those alterations and modifications to the Premises as may be necessary to clearly distinguish to the public the Premises from a Nestle Toll House Cafe and also make those specific additional changes as Nestle Toll House Cafe reasonably may request for that purpose provided that any alteration, modification or change is subject to the prior written consent of Landlord which shall not be unreasonably withheld and conforms to the Store Design Criteria. Landlord also agrees that, if Tenant fails to promptly make these alterations and modifications, Crest Foods, Inc. upon receipt of Landlord's prior written approval which shall not be unreasonably withheld shall have the right to do so, so long as they are consistent with the Store Design Criteria without being guilty of trespass or other tort so long as Nestle Toil House Cafe repairs any damage caused by such alteration or modification. Section 7.06 Radius Restriction. Deleted. Section 7.07 Compliance with Laws; Hazardous Substances. (a) Compliance with Laws. Tenant agrees, at its own expense, to comply with all applicable federal, state and local laws, rules, regulations, ordinances, guidelines, judgments and orders and all recommendations and requirements of any public or private agency having authority over insurance and/or its rates (including insurance underwriters and insurance rating bureaus), now in effect of hereafter enacted or passed during the Term insofar as the Premises and any of Tenant's Permitted Use, signs, operations, or occupancy of the Premises by Tenant are concerned including, without limitation, all Environmental Laws, the Americans with Disabilities Act, zoning ordinances and related land use restrictions, building codes, and fire codes (collectively, the "Governmental Requirements"). As used herein, "Environmental Laws" means any existing or future federal, state or local law, rule, regulation, order or directive pertaining to the environment, human health or safety, worker protection, or Hazardous Substances. (b) Hazardous Substances. Tenant shall not use the Premises or the Shopping Center for the generation, manufacture, refining, treatment, transportation, storage, handling, release, or disposal of hazardous materials, hazardous waste, hazardous substances, pollutants, toxic materials (including, without limitation, asbestos, polychlorinated biphenyls, petroleum products, hydraulic oils, radon gas, urea formaldehyde, flammable explosives, propane, radioactive materials, and lead-based paint), or any other substances or materials which are now or hereafter regulated under any Environmental Laws (such materials, collectively, "Hazardous Substances"). Tenant may bring to and use at the Premises Hazardous Substances incidental to its normal business operations in solely de minimis quantities and strictly in accordance with all Environmental Laws. Tenant stall store and handle such substances in strict compliance with all Environmental Laws. (c) Storage Tanks. Tenant will not, without obtaining Landlord's prior written approval, which approval may NestieToll Ho useCafe-CapitalCity-Kiosk-F inalFi nalFinalFinal March 7, 20081 Collins/CD 17 bo withheld in Landlord's sole discmi :.a, install any storage tank (including, but 19imited to, any tank designed to store Hazardous Substances, liquid or compressed gas of any kind), whether above or underground, at the Premises or in the Shopping Center, If Landlord consents to such installation, Tenant will comply with all Governmental Requirements and underwriter requirements concerning the installation, operation, and closure of such storage tank. Upon termination of this Lease, Landlord shall have the option of requiring that Tenant, at Tenant's sole cost and expense, perform tests relating to the condition of such storage tank and/or remove any storage tank installed by Tenant and associated contaminated material. Tenant shall be deemed the owner and operator of any storage tank installed by Tenant, its agent, or contractor. At Landlord's request, Tenant shall relocate such storage tank at Tenant's expense to another location acceptable to Landlord. (d) Release Notification. Tenant shall notify Landlord immediately upon learning that any provision of this Section 7.07 has been violated or that there has been a release, discharge or disposal of any Hazardous Substances at the Premises or at the Shopping Center. Tenant shall provide promptly to Landlord copies of all correspondence to or from third parties regarding Hazardous Substances in or originating from Tenant's operations at the Premises or at the Shopping Center. (e) Right to Inspect. Landlord shall have the right at all times during the Term of this Lease to inspect the Premises and conduct tests and investigations and take samples to determine whether Tenant is in compliance with the provisions of this Section 7.07, and to request lists of all Hazardous Substances used, stored, or located at the Premises. The cost of all such inspections, tests, and investigations shall be borne by Landlord unless such inspections, tests, and investigations reveal a violation of any Environmental Laws by Tenant, its invitees or licensees, in which case such costs shall be borne by Tenant. (f) Cooperation in Regard to Environmental Laws. Tenant shall cooperate with Landlord in obtaining approval of any transfer of the Shopping Center under Environmental Laws. Specifically, Tenant agrees that it shall (i) execute and deliver all affidavits, reports, responses to questions, applications or other filings required by Landlord and related to Tenant's activities at the Premises, (ii) allow inspections and testing of the Premises during normal business hours, and (iii) with respect to the Premises, perform any requirement reasonably requested by Landlord necessary for the receipt of approvals under Environmental Laws, provided the foregoing shall be at no out-of-pocket cost or expense to Tenant (except for clean-up and remediation costs arising from Tenant's violation of this Section 7.07). (g) Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from the county health department. ARTICLE 8: COMMON AREAS AND OPERATING COSTS Section 8.01 Landlord's Control and Maintenance of Common Areas. (a) Landlord's Control. All Common Areas in or about the Shopping Center shall be subject to Landlord's exclusive control and management. Landlord shall operate, manage, equip, police, light, surface, maintain, repair and replace (or cause all of the same to occur to) the Common Areas in good and reasonable condition and manner and Landlord shall have the sole right and exclusive authority to employ and discharge all personnel with respect thereto and/or hire independent contractors to perform the same. In addition, Landlord may provide (or cause to be provided) security in the Common Areas at a level determined by Landlord. (b) Right to Close Common Areas. Landlord may at any time and from time to time close all or any portion of the Common Areas to make repairs or changes or to such extent as may, in Landlord's opinion, be necessary to prevent a dedication thereof or the accrual of any rights to any person or to the public therein, and close temporarily any or all portions of the Common Areas and perform such other acts in and to Common Areas as, in the exercise of good business judgment, Landlord shall determine to be advisable with a view to the improvement of the convenience and use thereof by occupants and tenants, their employees and invitees. Landlord may at any time and from time to time exclude and restrain any person from use or occupancy of any of the Common Areas excepting, however, Tenant, other tenants of Landlord, and bona fide invitees of either who make use of these areas for their intended purposes and in accordance with the rules and regulations established by Landlord. (c) Landlord's Use. Landlord shall at al`s times have the right to utilize the Common Areas for promotions, exhibits, carnival-type shows, rides, indoor or 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 and 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 Channes by Landlord. As between Landlord and Tenant, Landlord (or others entitled to) shall at all times and from time to time have the right and privilege of determining the nature and extent of the Common Areas and of making such changes, rearrangements, additions or reductions in and to the Common Areas which, in its opinion, are deemed to be desirable or which are made as a result of any Governmental Requirements. Such rights shall include, but not be limited to, the following: 0) changing or modifying and adding to or subtracting from the sizes, locations, shapes and arrangements of parking areas, entrances, exits, driveways, parking a(4e alignments, and other Common Areas; (ii) altering the direction and flow of traff?& (iii) restricting parking by Tenant's employees to designated areas; (iv) constructing surface, sub-surface or elevated parking areas and facilities; NestleToll HouseCafe-CapitalCity-Kiosk-FinalFinalFina I Final March 7, 2008 \ Collins/CD 18 x (v) establishing and ch ing the level or grade of parking surfaces, (vi) enforcing parking charges (by meters or otherwise); (vii) installing landscaped areas; (viii) constructing additional buildings or improvements on the Common Areas or elsewhere and adding to or subtracting from the buildings in the Shopping Center, including building additional stories on any buildings; (ix) constructing roofs, walls, and any other improvements over, or in connection with any part of, or all of, the Common Areas in order to enclose same; (x) making alterations, renovations, reductions, or additions anywhere within the Common Areas or other parts of the Shopping Center or upon any lands or improvements added thereto; and (xi) doing and performing such other acts in and to the Common Areas as Landlord in its sole discretion, reasonably applied, deems advisable for the use thereof by tenants and their customers. If Landlord exercises its rights to add new buildings or change the Common Areas or perform any other acts authorized by this Section, and in so doing, Landlord substantially interferes with Tenant's physical ability to conduct business in the Premises to such a degree that Tenant, solely as a result of Landlord's acts, is unable to remain open for business for a period of time in excess of three (3) consecutive business days and Tenant closes for business, then Landlord agrees that as Tenant's sole and exclusive remedy for such interference the Minimum Rent thereafter falling due shall abate until Tenant is capable of recommencing business operations. Section 8.03 Rules and Regulations. Landlord shall have the right, from time to time, to establish, modify and enforce reasonable rules and regulations with respect to the use, operation and maintenance of all Common Areas provided that all such rules and regulations affecting Tenant and its invitees and employees shall apply equally and without discrimination to substantially all of the retail tenants in the building in which the Premises is located or substantially all retail tenants engaging in certain acts or of a certain use. The rules and regulations may include, but shall not be limited to, the hours during which the Common Areas shall be open for use. Tenant agrees to comply with all such rules and regulations. Section 8.04 Tenant's Riahts and Obligations. Tenant's rights in and to the use of the Common Areas shall at all times be subject to the rights of others to use the same in common with Tenant, and it shall be Tenant's duty to keep the Common Areas free and clear of any obstructions or interferences created or permitted by Tenant or resulting from Tenant's operations. Tenant and its employees and invitees are, except as otherwise provided in this Lease, authorized and privileged during the Term to use the Common Areas for their respective intended purposes in common with other persons. Tenant's right to use any meeting room or auditorium in the Common Areas shell be subject to such schedules and payment of fees or charges as Landlord may from time to time adopt. Section 8.05 Operating Costs. (a) Landlord, subject to reimbursement by Tenant as set forth in Section 8.06, at its expense will operate and maintain, or cause to be operated and maintained, the Common Areas and the Shopping Center. For the purposes of this Lease and to the extent permitted by applicalbe law, "Operating Costs" shall be those expenses, capital and non-capital costs, and any other cost or expense of whatever kind or nature related to operating, repairing, managing, maintaining, and replacing the Common Areas and the Shopping Center in a manner deemed by Landlord to be reasonable and appropriate including, but not limited to, all costs and 3xpenses (including taxes thereon), whether expended or incurred, of the following: (i) operating, repairing, replacing, lighting, cleaning, painting, and maintaining (including, but not limited to, preventive maintenance) the Common Areas and the Shopping Center; (ii) removing snow, ice, rubbish, and debris; (iii) inspecting, policing, providing security (including surveillance equipment), and regulating traffic; (iv) licensing/renting of sweepers, `trucks and other equipment; (v) depreciation (determined in accordance with GAAP useful life) of machinery and equipment and other non real estate assets used in the operation and maintenance of the Shopping Center; (vi) inspecting, maintaining, repairing and replacing of paving, parking lots, signage, roofs, walls, doors, curbs, walkways, landscaping, drainage, on-site water lines, sanitary sewer lines, storm water lines, Common Area heating, ventilating and air-conditioning systems, life safety systems, escalator and elevator systems, floors, floor coverings, canopies, skylights, escalators, electrical and telephone lines, and other equipment serving the property on which the Shopping Center or any part thereof is constructed or other mechanical or physical components of the Shopping Center; (vii) operating and maintaining gazebos, fountains, art features, sculptures, fencing and similar items, interior and exterior planting, replanting and replacing of all flowers, shrubbery, plants, trees and other landscaping within the Common Areas; (viii) providing, at the same rate per unit Landlord charges to tenants, refuse disposal, water and sewer, gas, steam, all interior and exterior site lighting, electricity, heating, ventilating and air-conditioning and other utilities and services including, without limitation, any and all usage, service, hook-up, maintenance, connection, installation, service costs, costs associated with any change in provider, availability and standby fees and charges pertaining to same; (ix) providing uniforms and replacement of uniforms; (x) the licensing/renting or purchase of music programs, services and loudspeaker, television and/or similar audio and video systems including the furnishing of electricity therefor; (xi) providing seasonal displays and holiday decorations, including the furnishing of electricity therefor; (xii) complying with any environ ntal or other similar laws, rules, regulations, guidelines or orders, including acquisition costs of licenses or permits and* the cost of removing Hazardous Substances from the Shopping Center; NestleToll HouseC afe-Capital City-Kiosk-Fi nalFinalFinalFinal March 7, 20081 Collins/CD 19 ??n (xiii) obtaining i operating public transportation or shutt us systems used in connection with bringing customers to the Shopping Center; (xiv) operating and maintaining stormwater management facilities; (xv) operating the Shopping Center office including the gross compensation, uniforms, and fringe benefits of the Shopping Center manager, assistant manager, bookkeepers and accountants, information technology personnel, the Shopping Center office personnel and all other personnel, office equipment, and other expense required to supervise and accomplish the foregoing; and (xvi) Landlord's supervisory administrative charge equal to fifteen percent (15%) of the total aggregate of all Operating Costs (exclusive of such Landlord supervisory administrative charge). (b) Operating Costs shall not include (i) depreciation (other than as specifically referred to above), (ii) the expense of any repair or replacement required of Landlord pursuant to the reconstruction obligations of Section 12.02, and (iii) any utilities which are directly metered or submetered to retail tenants in the Shopping Center; (iv) costs attributable to seeking and obtaining new tenants as well as retaining existing tenants, such as advertising, brokerage commissions, attorneys' fees, and similar costs; (v) costs attributable to enforcing leases against tenants in the Shopping Center, such as attorneys' fees, court costs, and similar expenses; (vi) costs that are reimbursable to the Landlord by tenants as a result of provisions contained in their specific lease, such as excessive use of utilities; (vii) costs incurred due to violations by the Landlord of any of the terms and conditions of any leases in the Shopping Center or as a result of any negligence of Landlord or its agents; (viii) all items and services for which tenants reimburse the Landlord or pay third persons or which the Landlord provides selectively to one or more tenants without reimbursement; (ix) repairs or other work occasioned by fire, windstorm or other casualty to the extent that the Landlord is reimbursed by insurance; (x) any costs, fines or penalties incurred due to violations by Landlord of any governmental rule or authority; (xi) the cost of correcting any code violations (including "ADA" compliance) by the Landlord in the Shopping Center; (xii) costs attributable to any environmental clean-up not otherwise caused by Tenant; (xiii) depreciation and amortization of debt; (xiv) overhead and profit paid to subsidiaries or affiliates of the Landlord for management services or materials to the extent that the cost of those items would not have been paid had the services and materials been provided by unaffiliated parties on a competitive basis; (xv) cost related to any refinancing of debt; (xvi) mortgage payments or any ground rentals payable by Landlord; (xvii) cost to clean up the Fast Food Cluster to the extent same were separately reimbursed by Fast Food Cluster tenants. (c) Tenant acknowledges that Landlord may cause any or all. operating and maintenance services referenced herein for the Common Areas to be provided by an independent contractor or contractors or others and such costs shall be included in Operating Costs prior to applying the Landlord supervisory administrative fee. (d) Operating Costs shall include capital and non-capital expenditures which relate to or are incurred by reason of: (i) a renovation, repair, reconfiguration or replacement of original improvements existing in the Shopping Center at the time this Lease is executed or (ii) new improvements constructed or installed with an expansion, contraction, reconfiguration or renovation of the Shopping Center or (iii) the enhancement or modernization of the Common Areas. It is understood that the reference to "original improvements" shall not require Landlord to implement renovations, repairs, or replacements with identical improvements, but that Landlord may elect to change the nature of the design, appearance, materials, or quality of such improvements so long as such changed improvements serve the same purpose as the original improvements. If Landlord acquires or makes available additional land or improvements for parking or other Common Area purposes, the Operating Costs shall also include all costs and expenses incurred by Landlord in connection with the operation and maintenance of such additional land and improvements. (e) 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. (f) Without limiting the foregoing, with rospect to any dispute regarding the calculation of Operating Costs, Landlord's accounting practices shall be determinative and binding on the parties. (g) It is understood Landlord may have heretofore elected to spread, and may hereafter elect to spread, the amount of any of the expenditures of the Operating Costs over such period of years as Landlord shall determine by amortizing them over such periods instead of including such expenses entirely in the year in which expended or incurred, in which event, the annual amortization amount shall be deemed to be an expense incurred during each year of the amortization period, notwithstanding that such expenditures may have been expended or incurred prior to the execution of this Lease. Furthermore, Landlord may allocate certain items of the Operating Costs among certain portions of the Shopping Center in its sole discretion, which allocation-need not be based on relative size or use. Section 8.06 Tenant's Share of Operating Costs. (a) Share of Operating Costs. Tenant's share of the Operating Costs in each Accounting Period of the Rent Term shall be an amount equal to the amount obtained by multiplying the total of all Operating Costs payable during such Accounting Period for the Shopping Center less all amounts paid as Operating Costs to Landlord by occupants of any Excluded Areas (as defined in Section 1.02) by a frac:4ion, the numerator of which shall be the GLA of the Premises and the denominator of which shall be the average of the1otal amount of square feet of the GLA of the Shopping Center in effect on the last day of each calendar month of the Accounting Period. NestleToll HouseCafe-CapitaiCity-Kiosk-Fins I FinalFinalFinal March 7, 20081 Collins= 20 (b) Reimbursement of Landlord. Tenant shall pay Tenant's share of the Operating Costs as Additional Rent during the Rent Term in equal monthly installments, in advance, without demand or setoff, in an amount equal to one- twelfth (1/12th) of the amount payable on account of the Operating Costs payable in each Accounting Period as set forth in Section 1.01(i) of the Lease multiplied by the GLA of the Premises. The first such payment shall be due and payable by Tenant on the Rent Commencement Date. If the Rent Commencement Date shall not be the first day of a calendar month, Tenant's payment of its share of Operating Costs for the fractional month between the Rent Commencement Date and the first day of the first full calendar month in the Rent Term shall be prorated on a per diem basis (calculated on the actual number of days in the month) and shall be paid together with the first payment of Minimum Rent. (c) Adjustments. After the first Accounting Period, Tenant shall continue to pay to Landlord such estimated amount of Tenant's share of Operating Costs on the first day of each month, in advance, without demand and without any setoff or deduction, but the estimated amount of Tenant's share of Operating Costs may be adjusted and revised by Landlord after the end of each Accounting Period during the Rent Term on the basis of the projected Operating Costs for the subject Accounting Period, within Landlord's reasonable business judgment. Upon Landlord furnishing to Tenant a statement setting forth the revised estimated Operating Costs, Tenant shall pay to Landlord the revised estimated share in equal monthly installments, each installment to be a sum equal to one-twelfth (1/12th) of the revised estimated Operating Costs, in advance, on the first day of each calendar month thereafter until the next succeeding revision in such estimate. (d) Statement. Following the end of. each Accounting Period, Landlord shall furnish to Tenant a written statement, in reasonable detail covering the Accounting Period just expired showing the total Operating Costs for such Accounting Period, the amount of Tenant's share thereof and payments made by Tenant with respect thereto. All subsequent monthly payments on account of Tenant's share of Operating Costs made by Tenant during such Accounting Period after receipt of such statement shall be applied by Landlord as payment on account of Tenant's obligation for its share of Operating Costs for the next ensuing Accounting Period and shall not reduce Tenant's obligation to pay the balance due Landlord pursuant to such statement. In making the aforesaid calculations, Landlord's statement shall be prima facie evidence of Operating Costs. (e) Over/Under Payment. If Tenant's share of Operating Costs exceeds Tenant's payments with respect to any Accounting Period, Tenant shall pay to Landlord the deficiency within thirty (30) days after the date of the furnishing of the statement from Landlord; if Tenant's payments exceed Tenant's share of the Operating Costs, Landlord shall credit such excess to Tenant within thirty (30) days and Landlord may elect to apply such excess to any indebtedness to Landlord. If Tenant's overpayment is for the last Accounting Period, Landlord shall refund such excess to Tenant within thirty (30) days to the extent Tenant is not indebted to Landlord and provided Tenant has fully performed all of its obligations under this Lease and has vacated the Premises in accordance with the provisions hereof. In the event Tenant is indebted to Landlord for any reason whatsoever, Landlord may deduct such amount owed from any overpayment by Tenant. (f) Proration. If the Rent Term commences or terminates (other than by reason of Tenant's default) during an Accounting Period, Tenant's obligation for Tenant's share of Operating Costs for such Accounting Period shall be equitably prorated. ARTICLE 9: MAINTENANCE AND REPAIR; ALTERATIONS Section 9.01 Structural Repairs by Landlord. Landlord will keep in good repair structural columns, cement structural portions of the floors (excluding floor tile, carpeting, terrazzo or other floor coverings), and the roof of the Shopping Center, provided Tenant gives Landlord written notice of the necessity for and nature of such repairs. Any difference in floor level, shifting of floor slab, or deviation in finished floor height resulting from the insertion or construction of an expansion joint or strip in the floor slab shall not be deemed a structural defect requiring repair by Landlord, but, rather, a normal construction practice which shall be Tenant's responsibility to appropriately plan for in its construction and use of the Premises. If Landlord is required to make any repairs to such portions of the Premises or Shopping Center by reason, in whole or in part, of the negligent act or failure to act by Tenant or Tenant's agent, servants, employees, contractors or subcontractors, or by reason of any use of the Premises by Tenant which is not normal wear and tear, Landlord may collect the cost of such repairs upon demand as Additional Rent. Landlord shall not be liable for repair, maintenance, alteration, improvement, reconstruction, renewal or any other action with respect to any part of the Premises or any plumbing, electrical, HVAC, or other mechanical installation, except as may be expressly set forth in this Lease. The provisions of this Section shall not apply in the case of any casualty or condemnation in which event the provisions of Article 12 or 13, as the case may be, shall control. Notwithstanding anything contained herein to the contrary, in the event of an emergency in the Premises causing imminent danger to persons or property, if Landlord fails or neglects to commence and diligently proceed to make any non-structural repair which Landlord is required to make in accordance with the terms of this Lease within twenty-four (24) hours after notice from Tenant, then Tenant shall have the right to make any such immediately necessary repair and Landlord shall reimburse Tenant for the reasonable cost thereof; provided, however, in no event shall Landlord be obligated to reimburse more than One Thousand and 00/100 ($1,000.00) Dollars. Section 9.02 Repair and Maintenance by Tenant. (a) Premises and Systems. Tenant will at all times, from and after Landlord's delivery of possession of the Premises to Tenant, at its own expense, maintain and keep in good repair in a neat, clean and orderly condition, all portions of the Premises and kiosk not required to be maintained by Landlord pursuant to Section 9.01. Tenant's obligation under this Section 9.02 shall include, but not be limited to, reasonable periodic painting and making all non- structural ordinary and extraordinary, foreseen and unforeseen maintenance, repairs, and replacements to the kiosk and its systems. Such obligation shall include repairing, replacing, and maintaining the entire kiosk, all interior portions of the & !thin the Premises; utility meters, pipes, and conduits outside the kiosk, all trade fixtures, fixtures, equipment and sign" tlw Premises which are installed by or demised to Tenant or which exclusively serve the Premises; and security grilles or similar enclosures, locks and closing devices. NestieTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinai March 7, 20081 CollinsICD 21 (b) No Overload. Tenant will not overload the electrical wiring or other systems serving the kiosk or within the kiosk, 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. (c) Damage to the Premises. Tenant wil? repair promptly at its own expense any damage (whether structural or nonstructural) to the kiosk caused by any construction or alterations performed by Tenant or bringing into the kiosk any property for Tenant's use, or by the installation or removal of such property, regardless of fault or by whom such damage was caused, unless and then to the extent caused by the negligence of Landlord, its servants or employees. Section 9.03 Landlord's Right to Access the Premises. Landlord and its authorized representatives may enter the Premises at any and all times during usual business hours for the purpose of inspecting the same, and at any time and for any purpose in the case of emergency for the purpose of inspecting the same or to make any additions, alterations, repairs or replacements to the Premises or to any utility systems or equipment located in, above or under the Premises which Landlord may deem necessary or desirable to comply with any Governmental Requirements, recommendations of an insurance rating bureau or any similar public or private body, or that Landlord may deem necessary or desirable to prevent waste or deterioration in connection with the operation of the Premises if Tenant does not make such additions, alterations, repairs or other work promptly after receipt of written demand from Landlord. Nothing herein shall imply any obligation by Landlord to do any work which under this Lease, Tenant may be required to do, and Landlord's failure to do the same shall not constitute a waiver of Tenant's default. In the event Landlord performs or causes any such work to be performed, which, by virtue of the provisions of this Lease, is Tenant's responsibility Tenant shall pay the cost thereof to Landlord as Additional Rent upon demand. In addition, Landlord may install, use, repair or replace any and all materials, tools and equipment, and pipes, ducts, conduits, columns, foundations, footings, wires and other mechanical equipment serving other portions, tenants and occupants of the Shopping Center in, through, under or above the Premises that Landlord deems desirable, without the same constituting an actual or constructive eviction of Tenant. Furthermore, notwithstanding anything in this Lease to the contrary, Landlord may erect additional stories or other structures over all or any part of the Premises and/or Shopping Center. In connection therewith, Landlord may relocate Tenant (in accordance with Section 2.06) and/or Tenant's signage and equipment and may erect temporary scaffolds and other aids to such construction at Landlord's sole cost and expense. In the event Landlord enters the Premises to make any additions, alterations or repairs to the Premises or to any utility systems or equipment located in, above or under the Premises (other than Landlord's performance of Tenant's obligations where Tenant fails so to do) and the Premises are rendered unfit for the conduct of Tenant's business during such work for a period in excess of three (3) full business days and Tenant is required to close for business, then Tenant's Minimum Rent shall abate from and after said three (3) business day period until such time as the Premises are again fit for the conduct of Tenant's business. Section 9.04 No Rent Abatement or Damages. Tenant shall not be entitled to any abatement of Rent or to any damages for inconvenience, disturbance, loss of business or other damage to Tenant occasioned by Landlord's exercise of any rights provided in Section 9.01 or 9.03. ARTICLE 10: PROMOTION OF THE SHOPPING CENTER Section 10.01 Marketing Service. (a) Marketing Service. Landlord has established or may establish a marketing, advertising, and/or promotional service (herein called the "Marketing Service") to furnish and maintain marketing, advertising and sales promotions which are intended to benefit the Shopping Center. The marketing program may include, at Landlord's discretion and without limitation, advertising placement and production, websites, special events, shows, displays, signs, seasonal events, advertising for the Shopping Center, promotional literature and other collateral, public relations, and other activities, equipment and supplies needed to market the Shopping Center, and services of a marketing director and all related staff and outside consultants deemed necessary by Landlord to carry out the Marketing Service, including without limitation all payroll, payroll taxes and employee benefits of any such director and staff. (b) Ceasing Service. The Marketing Service may be provided in whole or in party by a third-party contractor or by Landlord or Landlord's affiliate. Landlord may at any time cease providing or causing to be provided the Marketing Service altogether. In such event, Tenant shall no longer be obligated to pay the Marketing Service Charge. Landlord may at any time recommence providing or causing to be provided the Marketing Service and Tenant shall recommence payment of the Marketing Service Charge. Section 10.02 Marketing Service Charae. (a) Marketing Service Charge. For each Accounting Period during the Rent Term, Tenant shall pay to Landlord, as Additional Rent, Tenant's contribution ;toward the Marketing Service (the "Marketing Service Charge") pursuant to the following paragraphs. (b) Payment. On the first day of each calendar month during that portion of the Rent Term falling within the first Accounting Period, Tenant shall pay to Landlord, in advance, without demand and without any setoff or deduction, an .amount equal to the fixed Marketing Service Charge as set forth in Section 1.01(f) of the Lease multiplied by the GLA of the Premises. (c) Increases. After the first Accounting Period, Tenant shall continue to pay to Landlord the Marketing Service Charge on the first day of each month, in advance, without demand and without any setoff or deduction, but the NestleToll H ouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins/CD 22 `Y' arh'ount of Tenant's Marketing Se :-Charge shall be increased automatically he first day of the second and each subsequent Accounting Period during the Rent Term by five percent (5%) of the amount of Marketing Service Charge for the previous Accounting Period, and such increased amount shall be payable thereafter until the next succeeding increase. (d) Special Assessment. In the event that during the Rent Term there is (i) any renovation of the Shopping Center which involves the renovation of the storefronts of fifty percent (50%) or more of the existing tenants' spaces (a "Storefront Renovation"), or (ii) any expansion of the Shopping Center which increases the leasable area by ten percent (10%) or more (a "Building Expansion"), or (iii) any cosmetic remodel of the Common Areas which also involves the addition of new tenants and the creation of new or the relocation of existing entrances to the Shopping Center or the Common Areas (a "Repositioning") then at the time of each Storefront Renovation, Building Expansion, or Repositioning, Tenant shall pay to Landlord a special assessment (the "Special Assessment") in an amount equal to the Marketing Service Charge (and in addition to the Marketing Service Charge) for the Accounting Period of completion of a Storefront Renovation, a Building Expansion, or a Repositioning. Funds collected by the Special Assessment will be used for advertising and/or special events to promote the Storefront Renovation, the Building Expansion, or the Repositioning. Section 10.03 Dissolution of Merchants' Association. If a merchants' association for the Shopping Center exists, Tenant agrees that Landlord shall have the unilateral right to take any steps required to dissolve such association and/or to replace it with a marketing service, promotion fund, advertising fund, or any other similar fund or service designated by Landlord. In such event and upon notice to Tenant, Tenant shall automatically be deemed a member of such service/fund and shall contribute to the service/fund the amount which Tenant was required to contribute to the merchants' association immediately prior to its dissolution. ARTICLE 11: INSURANCE, INDEMNITY, WAIVER OF SUBROGATION Section 11.01 Tenant's Insurance. (a) Required Coverage. Tenant will keep in force, at Tenant's expense, at all times during the Term and during such other times as Tenant occupies the Premises or any part thereof and without limiting any liabilities or any other obligations of Tenant, the minimum insurance coverage listed below. Coverage will be provided with forms and insurers acceptable to Landlord until all obligations under this Lease are satisfied. All insurers must be duly licensed and possess a current A.M. Best, Inc. rating of at least A- VII or, if unlicensed, be an admitted surplus lines insurer. 0) Commercial General Liability Insurance. Commercial general liability insurance with respect to the Premises, the sidewalks, if any, abutting and adjoining the Premises, and the business operated by Tenant and any subtenants, licensees and concessionaires of Tenant in or from the Premises with a minimum combined single limit of Three Million Dollars ($3,000,000.00) per occurrence, including insurance against assumed or contractual liability under this Lease, on account of bodily injury, death, property damage or personal injury as the result of any one accident or disaster, which policy shall not include any exclusions for any property in Tenant's care, custody and control. Such liability insurance also shall extend to any liability of Tenant arising out of the indemnities provided in Section 11.05 below. (ii) Property Insurance. Special peril all risk property insurance covering (x) the kiosk and all of Tenant's stock in trade, trade fixtures, furniture, furnishings, such equipment not affixed to the Premises, and (y) Tenant's interest in all of the improvements and betterments installed in the Premises by Tenant, in each case to the extent of at least eighty percent (80%) of the collective replacement value without coinsurance. (iii) Commercial/Business Automobile Liability Insurance. Commercial/Business Automobile Liability insurance with a combined single limit for bodily injury and property damage of not less than One Million Dollars ($1,000,000.00) each occurrence with respect to Tenant's owned, hired and non-owned vehicles, assigned to or used in performance of the Lease. (iv) Workers' Compensation and Occupational Disease Insurance. If the nature of Tenant's operation is such as to place any or all of its employees under the coverage of local workers' compensation or similar statutes, Tenant shall also keep in force, at its own expense, Workers' Compensation and Occupational Disease or similar insurance affording statutory coverage and containing statutory limits in accordance with the laws of the state in which the Shopping Center is located and Employer's Liability Insurance with limits of not less than One Million Dollars ($1,000,000.00) per occurrence. (v) Liquor Liability Insurance. If Tenant sells or dispenses alcoholic beverages, Tenant shall maintain liquor liability insurance (Dram Shop or Host coverage) with limits of not less than Two Million Dollars ($2,000,000.00); (vi) Other Insurance. Such other types of insurance (excluding rent insurance in favor of Landlord) and such additional amounts of insurance as, in Landlord's judgment, are necessitated by good business practice or as may be standard and customary in the industry. (b) The limits of insurance coverage required by this Lease or as carried by the Tenant shall not limit Tenant's liability or relieve Tenant of any obligation under this Lease. (c) The policies required by paragraphs (i), (ii), (iii), and (v) above shall be endorsed to include Landlord, Agent, Mortgagees and any other entities as may be from time to time requested by Landlord and its respective agents, representatives, officers, directors, officials, and employees as additional insureds and shall require that the insurance provided by Tenant shall be primary insurance and that any insurance carried by Landlord, Agent, Mortgagees (as defined in Section 17.01) and any other entities as may be from time to time requested by Landlord and their respective agents, officials or employees shall be excess and not contributory insurance to that provided by Tenant. (d) A certificate of insurance acceptable to Landlord shall be issued to Landlord by Tenant prior to commencement of the Lease (and thereafter as renewed) as evidence that policies providing the required coverages, named insureds, endorsements, conditions and limitt are in full force and effect. Such certificate shall identify this Lease and contain provisions that coverage afforded under the policies will not be canceled, terminated, or materially altered until at least thirty (30) days prior written notice has been given to Landlord and all additional insureds. NestieTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins= 23 (e) Upon request, Tenant will deposit with Landlord policies of insurance required by the provisions of this Section 11.01, or certificates thereof, together with satisfactory evidence of the payment of the required premium or premiums thereof. The insurance required hereby may be maintained by means of a policy or policies of blanket or excess insurance so long as the provisions of this Section are fully satisfied and provided that such policies specifically name Tenant's business at the Premises and Tenant provides Landlord with a certificate of such insurance. (f) Such policies of insurance with more than one insured shall contain a provision substantially as follows: "It is understood and agreed that the insurance afforded by this policy or policies for more than one named insured shall not operate to increase the limits of the companies' liability, but otherwise shall not operate to limit or void the coverage of any one named insured as respects claims against the same named insured by any other named insured or the employees of such other named insured". (g) If for any reason whatsoever Tenant fails to provide and keep in force any or all of the insurance policies set forth in Section 11.01(a), then, in such event, Tenant shall indemnify and hold Landlord harmless against any loss which would have been covered by such insurance. Section 11.02 Landlord's Insurance. , (a) Landlord shall at all times during the Term carry and maintain the types of insurance listed below in the amounts and forms specified. (i) Commercial General Liability Insurance. Commercial general liability insurance against claims for property damage and bodily injury or death, such insurance to afford protection to the limit of not less than Five Million Dollars ($5,000,000.00) in respect to property damage, injury or death to any number of persons arising out of any one occurrence. (ii) Landlord's Real and Personal Property. Insurance covering those portions of the Shopping Center owned by Landlord (exclusive of any tenant improvements and betterments and property required to be insured by Tenant pursuant to Section 11.01(a)(h) or required to be insured by other occupants of the Shopping Center] 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 ISO form of special form coverage insurance policy, together voth insurance against sprinkler damage, vandalism and malicious mischief, and such other risks as Landlord may from time to time determine and with any such deductibles as Landlord may from time to time determine. (iii) Rent Insurance. Rent insurance with respect to the premises of the tenants in the Shopping Center if available at a cost which Landlord in its sole judgment deems reasonable, against loss of rents in an aggregate amount equal to not more than twenty-four (24) times the sum of (1) the monthly requirement of Minimum Rent of such tenants, plus (ii) the average monthly amount estimated from time to time by Landlord to be payable by such tenants as Percentage Rent and as Additional Rent pursuant to their leases. (b) Any insurance provided for in Section 11.02(a) may be maintained by means of a policy or policies of blanket or excess insurance, covering additional items or locations or insureds provided that the requirements of Section 11.02(a) are otherwise satisfied. (c) Tenant shall have no rights in any policy or policies maintained by Landlord and shall not be entitled to be named an insured thereunder by reason of payment or otherwise. Section 11.03 Insurance Costs. (a) Landlord's Insurance Costs. For each Accounting Period or portion thereof in the Rent Term, Tenant shall pay to Landlord, as Additional Rent, Tenant's share of the cost of Landlord's policy or policies to insure the Common Areas, Premises, and the Shopping Center (and all costs related to said coverage(s)) with such policies and companies and in such limits as selected by Landlord (including, without limitation to the extent Landlord elects to provide special cause of loss form property insurance; business interruption insurance; liability insurance covering personal injury, deaths and property damage with a personal injury endorsement covering false arrest, detention or imprisonment, malicious prosecution, libel and slander, and wrongful entry or eviction;. worker's compensation insurance; plate glass insurance; contractual liability insurance; direct damage to property insurance providing special cause of loss coverage supplemented by any other policies which buy back specific excluded perils such as flood, windstorm and boiler and machinery, earthquake, terrorism and losses paid out, of self-insured retentions or deductibles; commercial general liability and automobile liability and losses paid out of self-insured retentions or deductibles and associated claims handling charges; environmental liability, umbrella and excess liability, workers' compensation and crime coverage; and all additional charges and expenses as a result of settlement of covered claims, uncovered losses, policy coinsurance features, and reasonable costs associated with risk management functions required to maintain a comprehensive insurance program (collectively, "Landlord's Insurance Costs"). (b) Tenant's Insurance Charge. Tenant's share of Landlord's Insurance Costs (the "Insurance Charge") shall be the amount equal to the amount obtained by multiplying the total of Landlord's Insurance Costs for the Accounting Period by a fraction, the numerator of which shall be the GLA of the Premises and the denominator of which shall be the average of the total amount of square feet of the GLA of the Shopping Center in effect on the last day of each calendar month of the Accounting Period. (c) Payment. Tenant shall pay the Insurance Charge to Landlord as Additional Rent on the first day of each calendar month in the Rent Term in equal monthly installments, in advance, without demand or setoff, in an amount equal to one-twelfth (1/12th) of Landlord's Insurance Costs payable during the Accounting Period as set forth in Section 1.01 (j) of the Lease multiplied by the GLA of the Premises. If the Rent Term commences or terminates (other than by reason of Tenant's default) on a date other than the first or i*t day, respectively, of an Accounting Period, Tenant's payment of such costs of insuring shall be equitably prorated. NestleTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins/CD 24 w (d) Adjustment. Landl ,nay adjust the aforesaid amount at any ti uring an Accounting Period to reflect Landlord's actual cost of such insurance per square foot of average GLA of the Shopping Center and upon receipt of such notice, Tenant shall commence payment of such increased sum and shall continue to pay the same until a subsequent adjustment is made hereunder. Section 11.04 Effect on Landlord's Insurance. Tenant will not do, omit to do, suffer to be done, keep, or suffer to be kept anything in, upon, or about the Premises which will violate the provisions of Landlord's policies insuring against loss or damage by fire or other hazards (including, but not limited to, public liability), which will adversely affect Landlord's property or liability insurance premium rating or which will prevent Landlord from procuring such policies in companies acceptable to Landlord, provided Tenant is first given adequate notice of the requirements of such policies. If anything done, omitted to be done, suffered to be done by Tenant, kept or suffered by Tenant to be kept in, upon, or about the Premises shall cause, by itself or in combination with other circumstances existing at the Shopping Center, the premium rate of special cause of loss form property or other insurance on the Premises or other property of the Shopping Center in companies acceptable to Landlord to be increased beyond the established rate from time to time fixed by the appropriate underwriters with regard to the use of the Premises for the purposes permitted under this Lease or to such other property in the Shopping Center for the use or uses made thereof, Tenant will pay the amount of such increase or, in the event that other circumstances existing at the Shopping Center shall have contributed to such increase, such equitable portion of such increase as reasonably determined by Landlord, as Additional Rent upon Landlord's demand and will thereafter pay the amount of such increase, as the same may vary from time to time, with respect to every premium relating to coverage of the Premises during a period falling within the Term until such increase is eliminated. In addition, if applicable, Landlord may at its option rectify the condition existing on the Premises which caused or was a contributing cause of the increased premium rate in the event that the Tenant should fail to do so and may charge the cost of such action to Tenant as Additional Rent, payable on demand. In determining whether increased premiums are the result of Tenant's use of the Premises, a schedule, issued by the organization making the insurance rate on the Premises, showing the various components of such rate, shall be conclusive evidence of the several items and charges which make up the Property insurance rate on the Premises. If, and for so long as Tenant is conducting only the business specifically authorized herein, Landlord agrees that Tenant's business operations in the Premises shall not, in and of themselves, be grounds for requiring Tenant to pay its share of any increase in Landlord's insurance rates referred to above; provided such business activities are not hazardous or result in an undue accumulation of waste or trash within the Premises, or otherwise violate the terms of this Lease. Section 11.05 indemnification and Waiver of Claim. (a) Tenant agrees to defend, indemnify, and save harmless Landlord, Agent, and any ground and underlying lessor(s) and mortgagee(s) of the Premises and Shopping Center from and against any and all claims, actions, demands, liability, costs and expenses (including, but not limited to, reasonable attorney's fees and disbursements) connected with the loss of life, personal injury or damage to property or business arising from, related to, or in connection with the performance of Tenant's Work, the occupancy of the Premises, or occasioned wholly or in part by act or omission of Tenant, its contractors, subcontractors, subtenants, licensees, or concessionaires, or its or their respective agents, servants, or employees on any part of Landlord's property or the Shopping Center, or by reason of Tenant's breach of any of the provisions of this Lease. Tenant shall not, however, be liable for damages or injury occasioned by the negligence or willful misconduct of Landlord, Agent, or any such ground of underlying lessor(s) or mortgagee(s), or their agents, employees, contractors, or servants, unless such damage or injury arises from perils against which Tenant is required by this Lease to assume or insure. Tenant's obligations under the aforesaid indemnity shall not be limited to the amount of commercial general liability insurance coverage which Tenant is required to carry and, if Tenant fails to provide and keep in force any or all of the insurance policies set forth in Section 11.01, then, in such event, Tenant shall indemnify and hold Landlord harmless against any loss which would have been covered by such insurance. (b) Tenant further agrees to defend, indemnify, and. save harmless Landlord, Agent, and any ground and underlying lessor(s) and mortgagee(s) of the Premises and Shopping Center from all loss, damage, expense, fees, claims, costs, fines, penalties, and liabilities including, but not limited to, clean up costs, remedial and monitoring costs, damages to the environment, attorneys' fees, and costs of litigation, arising out of Tenant's installation of any hazardous substances or violation of any Environmental Laws as defined in Section 7.07). In the event insurance coverage is available or becomes available for the losses or liabilities described in this paragraph, Tenant shall furnish evidence of such coverage for the protection of both Tenant and Landlord (and any designees of Landlord). (c) Unless and then solely to the extent such damage is caused by the negligent acts or omissions of Landlord, Agent, or their respective agents, servants, and employees, neither Landlord, nor Agent, nor their respective agents, servants, employees or contractors shall be liable for, and Tenant, in consideration of Landlord's execution of this Lease, hereby releases all claims for, loss of life, personal injury or damage to property or business sustained by Tenant or any person claiming through Tenant resulting from any fire, accident, occurrence, or condition in or upon the Shopping Center or any part thereof (including, without limitation, the Premises and the building of which the Premises is a part), including, but not limited to, such claims for loss of life, personal injury or damage resulting from (1) any defect in or failure of plumbing, heating or air-conditioning equipment, electrical wiring or installation thereof, water pipes, stairs, railings or walks; (ii) any equipment or appurtenances being out of repair; (iii) the bursting, leaking, or running of any tank, washstand, water closet, waste pipe, drain, or any other pipe or tank in, upon, or'about the Shopping Center; (iv) the backing up of any sewer pipe; (v) the escape of steam or hot water; (vi) water, snow, or ice being upon or coming through the roof or any other place upon or near the Premises or the building of which the Premises is a part or otherwise; (vii) the falling of any fixture, plaster, ceiling tile or stucco; (viii) broken glass; and (ix) any act or omission of other tenants or other occupants of the Shopping Center. The foregoing wailer and release is intended by Landlord and Tenant to be absolute, unconditional, and without exception and to supersede any specific repair obligation imposed upon Landlord hereunder. N estleToll Hou seCafe-CapitalCity-Kiosk-FinalFinalFinal Final March 7, 20081 Collins/CD 25 (d) Landlord agrees i1bifendf indemnify and save harmless Te from and against any and all claims, actions, demands, liability, costs and expenses (including, but not limited to, reasonable attorney's fees and disbursements) in connection with the loss of life, personal injury or damage to property arising from, related to, or in connection with Landlord's willful misconduct or negligent acts or omissions in the Common Areas. Landlord shall not be liable for damages or injury occasioned by the negligence or willful misconduct of Tenant, its agents, contractors, servants or employees, or damages and injury attributable to terrorism, viral/bacteriological pandemics, or other catastrophic events beyond Landlord's reasonable control. (e) This Section 11.05 shall survive the expiration or earlier termination of this Lease Section 11.06 Mutual Waivers. In the event the Premises or its contents are damaged or destroyed by fire or other insured casualty, (i) Landlord, to the extent covered by its policies of special cause of loss form property insurance, hereby waives its rights, if any, against Tenant with respect to such damage or destruction, even if said fire or other casualty shall have been caused, in whole or in part, by the negligence or willful misconduct of Tenant, its agents, servants, or employees, and (ii) Tenant, to the extent covered by its policies of special cause of loss form property insurance, hereby waives its rights, if any, against Landlord with respect to such damage or destruction, even if said fire or other casualty shall have been caused, in whole or in part, by the negligence or willful misconduct of Landlord, its agents, servants, or employees. The parties hereto, on behalf of their respective insurance companies insuring the property of either Landlord or Tenant against any such loss, waive any right of subrogation that such insurers may have against Landlord or Tenant, as the case may be. ARTICLE 12: DAMAGE OR DESTRUCTION Section 12.01 Landlord's Duty to Reconstruct the Premises. In the event the Premises is damaged or destroyed by any of the perils referred to in Section 11.02(a)(ii) against which Landlord is obligated to procure insurance, unless Landlord or Tenant terminates this Lease pursuant to Section 12.03, Landlord shall (subject to being able to obtain all necessary permits and approvals), within one hundred twenty (120) days after such damage or destruction, commence to repair or reconstruct the structural floor slab 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)(ii). Landlord will not expend more for any repair or reconstruction pursuant to this Section than the net amount of insurance proceeds actually received by Landlord (after deduction of Landlord's reasonable expenses in obtaining such proceeds and any amounts required to be paid to Landlord's mortgagee) and allocable to the Premises on a square foot basis. Section 12.02 Tenant's Duty to Reconstruct the Premises. If the kiosk is damaged or destroyed by fire or other casualty, unless Landlord or Tenant terminates this Lease pursuant to Section 12.03, Tenant shall (subject to being able to obtain all necessary permits and approvals), within fifteen (15) days after Landlord has substantially repaired or reconstructed that portion of the Premises Landlord is obligated to repair or reconstruct pursuant to Section 12.01, commence to repair or reconstruct such damaged or destroyed items to at least substantially the same condition in which they were prior to such damage or destruction and prosecute the same diligently to completion, including replacing the kiosk with another one approved in advance by Landlord. Section 12.03 Option to Terminate. (a) Landlord's Option to Terminate. Landlord shall have the option to terminate this Lease upon giving written notice to Tenant within sixty (60) days after the Shopping Center is damaged or destroyed if: (i) the Premises is rendered wholly unfit for the carrying on of Tenant's business after damage to or destruction thereof from any cause; or (ii) the Shopping Center is damaged or destroyed as a result of any flood, earthquake, act of war, radioactive or other contamination, or from any other risk whether or not covered by insurance which Landlord is obligated to procure pursuant to Section 11.02(a)(ii); or (iii) any damage to or destruction.of the Shopping Center occurs within the last three (3) Lease Years of the Term or in any Partial Lease Year at the end of the Term; or (iv) fifty percent (50%) or more of the GLA of the Shopping Center immediately prior to the damage or destruction is rendered unfit for the carrying on of business therein; or (v) the Shopping Center is so substantially damaged that it is reasonably necessary, in Landlord's judgment, to demolish the same for the purpose of reconstruction; or (vi) Landlord elects not to permit kiosks in the Commons Areas of the enclosed mail. (b) Tenant's Option to Terminate. Tenant shall have the option to terminate this Lease upon giving written notice to Landlord within thirty (30) days after the Shopping Center or Premises is damaged or destroyed if the Premises is rendered wholly unfit for the carrying on of Tenant's business after damage to or destruction of the Premises which occurs within the last three (3) Lease Years of the Tern. (c) Effective Date. With regard to termination as set forth in (a) and (b) above, such termination shall take effect ninety (90) days from and after the receipt of such notice by the other party and, in such event, this Lease shall terminate as of the aforesaid date (except that such termination shall not affect the obligations of the parties which have accrued and remain unpaid). Section 12.04 Abatement of Rent. If Landlord or Tenant does not terminate this Lease pursuant to Section 12.03 and if the Premises is rendered N estleTol I Ho useCafe-CapitalCity-Kiosk-FinalFi nalFinalFinal March 7, 20081 Collins/CD 26 wholly or partially unfit for the car on of Tenant's business by such dams r destruction, then the Minimum Rent and Additional Rent payable by Tenant shall abate proportionately as to the portion of the Premises rendered unfit for that period from the date the Premises is rendered unfit until the earlier of (i) sixty (60) days after Landlord re-delivers possession of the Premises to Tenant or (ii) the date Tenant reopens for business. Nothing in this Section shall be construed to permit any abatement of Percentage Rent, and the calculation of Percentage Rent shall be governed solely by Section 4.03. ARTICLE 13: CONDEMNATION Section 13.01 Total Condemnation of the Premises If the entire or any part of the Premises shall be taken or condemned either permanently or temporarily by any public or quasi-public authority under the power of eminent domain, condemnation or expropriation or by conveyance in lieu thereof or by agreement (hereinafter "Condemnation"), then this Lease shall terminate as of the date possession is required to be surrendered to the condemning authority. Tenant shall have no claim against Landlord or the condemning authority for the value of the unexpired Term. Tenant shall pay Rent and perform all obligations under this Lease up to such date and Landlord shall refund to Tenant any Rent which Tenant shall have paid in advance for the period subsequent to such date. Tenant shall remove the kiosk at the time of termination and shall not participate in any condemnation award which may be payable. Section 13.02 Partial Condemnation of the Premises Deleted. Section 13.03 Condemnation of the Shopping Center. If any part of the Shopping Center is taken by Condemnation so as to render, in Landlord's judgment, the remainder unsuitable for use as an enclosed 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 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 which Tenant may have paid in advance for any period subsequent to such possession. Tenant shall have no claim against Landlord or the condemning authority for the value of the unexpired Term. Section 13.04 Damages. All damages in the event of any Condemnation are to belong to Landlord and any mortgagee of Landlord whether such damages are awarded as compensation for diminution in value of the leasehold, reversion or fee of the Premises, or Tenant's leasehold improvements. Tenant shall have the right to claim and recover from the condemning authority, but not from Landlord or its mortgagee, such compensation as may be separately awarded or recoverable by Tenant in Tenant's own right for or on account of any cost or expense which Tenant 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. In the event the condemning authority makes a single damages award on account of all damages to both Landlord and Tenant, Landlord will cooperate with Tenant in including Tenant's damages in the claim Landlord submits to the condemning authority, but Tenant shall be entitled only to such portion of the award as remains after Landlord is fully compensated for its damages. ARTICLE 14: FIXTURES AND PERSONAL PROPERTY Section 14.01 Improvements to Premises: Removal. The kiosk and all improvements made to the kiosk 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, mechanical and electrical equipment (but excluding Personal Property as defined below) shall, when installed, attach to the fee and become and remain the property of Landlord. However, Landlord may designate by written notice to Tenant those alterations, changes, and additions made to the Premises during the Term which shall be removed by Tenant at the expiration or termination of this Lease, and Tenant shall, at Tenant's sole cost and expense, promptly remove the same and repair any damage to the Premises caused by such removal or by the installation of such alterations, changes or additions. Should Tenant fail to remove the kiosk and its trade fixtures and/or to so restore the Premises, Landlord may do so, collecting upon demand at Landlord's option, the cost and expense thereof as Additional Rent, or Landlord may permit future occupants to utilize the kiosk without accounting to Tenant. Section 14.02 Tenant's Personal Property: Removal. Any of Tenant's personal property not permanently affixed to the kiosk (including signs, counters, shelving, showcases, mirrors, inventory and other personal property and hereinafter called "Personal Property") shall remain the property of Tenant throughout the Term. Provided Tenant is not in default under this Lease, Tenant shall have the right at any time during the Term to remove its Personal Property stored or installed in the kiosk. If Tenant is in default under this Lease, Landlord shall have the right to take exclusive possession of the Personal Property and to use the Personal Property without rent or charge, and Landlord, whether or not it takes possession of the Personal Property, shall have the benefit of any lien thereon permitted under the laws of the state in which the Shopping Center is located. If Landlord takes possession or asserts such lien in any manner, Tenant shall not remove or permit the removal of the Personal Property until possession is relinquished by Landlordr the lien is removed, as the case may be. Nothing in this Section shall be construed to permit Tenant to remove the `Personal Property prior to the end of the Term without Tenant's immediate replacement with similar Personal Property of comparable or better quality, or otherwise to render the Premises unsuitable for the continued conduct of Tenant's Permitted Use. Tenant, at its expense, shall immediately NestleToll HouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal. March 7, 20081 Collins/CD 27 repair any damage to the Premiss 'r Shopping Center by reason of install or removal of any Personal Property unless the damage is caused by Landlord pursuant to Section 9.03 [Landlord's Right to Access the Premises]. If Tenant fails to remove the Personal Property from the Premises upon expiration or earlier termination of the Lease, then such Personal Property shall become Landlord's property without further act by Landlord or Tenant unless Landlord elects to require all or a portion of such Personal Property to be removed by Tenant, in which case Tenant shall promptly remove the items designated by Landlord and restore the Premises to its prior condition at Tenant's expense. Tenant hereby agrees to indemnify and hold harmless Landlord from any liability, claim, expense or judgment arising from or related to Tenant's Personal Property left at the Premises after expiration or earlier termination of the Lease, except for liability arising from Landlord's willful misconduct. Landlord agrees to subordinate any lien which it may have on Tenant's aforesaid trade fixtures, equipment and inventory to the rights of any bonafide mortgagee or secured creditor of Tenant for the purpose of financing said trade fixtures, equipment, and inventory for use in the Premises provided that such mortgagee or institution agrees to remove such personal property prior to the expiration or earlier termination of this Lease and to repair any damage to the Premises which may be caused by their removal of any such personal property. Notwithstanding anything contained herein to the contrary, any lien(s) to which Landlord may be entitled shall be limited to those permitted by law. In addition, and notwithstanding anything contained herein to the contrary, Landlord does hereby agree that all trade fixtures, machinery, equipment signs, seating, tables and all other distinctive features of Nestle Toll House Cafe By Central PA Cookie Company, LLC shall be remain the sole property of the Tenant, shall not be subject to any Landlord lien(s). ARTICLE 15: ASSIGNMENT AND SUBLETTING Section 15.01 Assignment and Subletting. Tenant shall not permit anyone other than Tenant to occupy the Premises or any part thereof and shall not transfer, assign, sublet, enter into any license, concession, or other occupancy or use agreements, or mortgage or hypothecate this Lease or 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 or membership interest in Tenant so as to result in a change of the control thereof, shall be included in the term "Transfer" for the purposes of this Lease and shall be a violation of this Section 15.01 and an Event of Default, except as otherwise specifically provided in Section 15.02. Consent by Landlord to any Transfer shall not constitute a waiver of the necessity for such consent to any subsequent Transfer. In the event of a permitted Transfer, Tenant agrees nevertheless to and shall remain fully liable for the full performance of each and every obligation under this Lease to be performed by Tenant and the assignee shall be deemed to have assumed, and agreed to be bound by all of the terms of this Lease. In the event of any proposed Transfer, Tenant shall deliver to Landlord written notice (the "Request Notice") requesting Landlord's consent to the proposed Transfer at least thirty (30) days prior to the date on which, with Landlord's prior written consent, the Transfer would be effective. The Request Notice shall contain, without limitation, at least: (i) the full identification of the proposed transferee; (ii) the most recent financial statements and other evidence of the transferee's 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. Landlord shall have the right and option (the "Take-back Option"), exercisable by Landlord giving Tenant written notice within thirty (30) days after Landlord's receipt of the Request Notice, of reacquiring the Premises or portion thereof which is the subject of the proposed Transfer and terminating this Lease, which termination shall be effective on a date specified by Landlord in its notice of exercise of the Take-back Option. If Landlord elects not to exercise the Take-back Option and elects to give written consent to the proposed Transfer, then Tenant shall pay to Landlord upon Tenant's receipt, as Additional Rent, all sums and other economic consideration (whether by lump sum payment or otherwise) received by Tenant in any month as a result of or related to the Transfer whether or not denominated rent which exceed in the aggregate the sums which Tenant is obligated to pay and does pay Landlord under this Lease in the same month (prorated to reflect obligations allocable to that portion of the Premises which is the subject of the Transfer), provided, however, that with respect to an assignment or sublease, Tenant shall not be required to make such payment if the assignment or sublease is from Tenant to an authorized Nestle franchisee or to Tenant's franchisor. If Landlord gives Landlord's written consent to the proposed Transfer and Tenant does not consummate the Transfer (including, without limitation, delivery of possession by Tenant to and occupancy by the approved proposed transferee) within thirty (30) days after the date Landlord gives its written consent to the proposed Transfer, then Landlord's written consent and the Transfer shall be automatically void and of no force or effect whatsoever. Tenant agrees that Landlord (and any assignee or transferee of Landlord's right, title and interest in this Lease) shall have the right to exercise the Take-back Option as often as there is a proposed Transfer. If Landlord requests additional information which Landlord reasonably requires to evaluate the proposed Transfer, Tenant shall deliver such information to Landlord upon Landlord's request, and the period for Landlord to exercise the Take-back Option shall be extended by the number of days between Landlord's request for and Landlord's receipt of such additional information. , Tenant shall pay to Landlord the sum of Five Thousand Dollars ($5,000.00) ("Transfer Fee"), as Additional Rent, to defray Landlord's administrative costs, overhead and counsel fees in connection with the consideration, review and document preparation of any proposed assignment or subletting, such sum to be paid at the time Tenant delivers to Landlord for Landlord's execution the assignment anassumption agreement executed by the assignee and assignor. Section 15.02 Assignment to Parent. Subsidiary. Affiliated Corooration of Tenant. NestleTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFina; March 7, 2008 \ Collins= 28 Notwithstanding the provis' of Section 15.01, Tenant shall have the t, without Landlord's consent and free of the Take-back Option, to assign this Lease to the following entities (each an "Affiliated Corporation"); (a) Tenant's parent corporation, (b) Tenant's subsidiary, or (c) a corporation (i) which owns more than a fifty percent (50%) interest in Tenant or (ii) in which Tenant owns more than a fifty percent (50%) interest; provided that Tenant shall deliver to Landlord within ten (10) days after the date of such assignment (x) an executed copy of the assignment wherein such Affiliated Corporation assumes for the benefit of Landlord all of Tenant's obligations under this Lease without releasing Tenant from liability for any of the terms, conditions and covenants of this Lease (including the payment of Rent), (y) a statement certified by a certified public accountant that the Affiliated Corporation's net worth is at least fifty million dollars ($50,000,000), and (z) the Transfer Fee. After the date of the assignment, in the event such Affiliated Corporation shall no longer be Tenant's Affiliated Corporation as defined above, then such an event shall constitute a Transfer and shall be subject to the provisions of Section 15.01. (d) Notwithstanding anything contained in this Section to the contrary, Tenant shall have the unrestricted right to assign this Lease or to sublet the Premises to its parent corporation or to any subsidiary or affiliated corporation provided that Tenant shall deliver to Landlord, within ten (10) days after the date of such assignment or subletting, an executed copy of the assignment or sublease wherein such parent corporation, subsidiary or affiliated corporation assumes for the benefit of Landlord all of the obligations of Tenant under this Lease and agrees to be bound by the terms, conditions and covenants of this Lease and further provided that any such assignment or subletting shall not relieve Tenant from liability for the payment of Rent or other sums herein provided or from the obligation to keep and be bound by the terms, conditions and covenants of this Lease. In the event such parent, subsidiary or affiliated corporation of the entity making the assignment or sublease shall at any time after the date of such assignment or sublease no longer be a parent, subsidiary or affiliated corporation of the entity making the assignment or sublease, then such event shall constitute a transfer for the purposes hereof and shall be subject to the provisions of this Section 15.01. (e) Notwithstanding anything contained in this Article to the contrary, Tenant shall have the right to assign this Lease or to sublet the Premises to any corporation into which Tenant may merge or to any corporation arising out of a consolidation of Tenant with another corporation or to a corporation or other entity acquiring all or substantially all the assets of Tenant or all of the issued and outstanding voting stock of Tenant provided (a) that such acquiring entity has at least twenty (20) stores more than the combined number of stores operated by Tenant and all its affiliates, under leases in which such acquiring entity is the tenant as of the date of such assignment or sublease and all such stores sell merchandise comparable to that which Tenant sells; (b) all such stores are transferred to the corporation into which Tenant is merged or the corporation arising out of a consolidation of Tenant with another corporation or such acquiring corporation or other entity, as the case may be, in connection with such assignment or sublease; (c) Tenant delivering to Landlord, within ten (10) days after the date of such assignment or subletting, evidence that the entity into which Tenant merges or consolidates, as the case may be, has a net worth and financial condition equal to or greater than the net worth and financial condition of Tenant as of the date of this Lease or as of the date of such assignment or sublease, whichever is greater and; (d) Tenant delivering to Landlord; within ten (10) days after the date of such assignment or subletting, an executed copy of the assignment or sublease in a form reasonably acceptable to Landlord wherein the corporation into which Tenant may merge or the corporation arising out of a consolidation of Tenant with another corporation or such acquiring corporation or other entity, as the case may be, assumes for the benefit of Landlord all of the terms, conditions and covenants set forth in this Lease to be observed and performed by Tenant and agrees to be bound by the terms, conditions and covenants of this Lease. Any such assignment or subletting shall not relieve Tenant from liability for the payment of Rent or other sums herein provided or from the obligation to keep and be bound by the terms, conditions and covenants of this Lease. (f) Without Landlord's prior approval, Tenant may sublease the Premises to Tenant's authorized franchisor provided and so long as the following conditions are satisfied: 1. The execution of the franchise agreements and sublease (collectively "agreements") shall not alter or diminish Tenant's direct obligation for performance of its obligations hereunder and Tenant shall not be released therefrom in any respect; and 2. All the rights of such sublease shall be subject to all obligations imposed upon Tenant by this Lease and such sublessee shall affirmatively covenant in the agreements to perform all such obligations for the direct benefit of Landlord as a third party beneficiary thereof; and 3. The agreements shall be consistent with the terms hereof and shall not grant to the sublessee any rights not afforded to Tenant by this Lease, and in the event of a conflict between the terms, covenants and conditions contained in this Lease and those contained in the agreements, the terms of this Lease shall prevail; and 4. In no event will Landlord be obligated to (a) give any notice to or join such sublessee in any proceeding Landlord institutes against Tenant in the event Tenant defaults under the sublease, and (b) the sublease will by its own terms automatically terminate upon the expiration or sooner termination of this Lease. ARTICLE 16: EVENTS OF DEFAULT AND BANKRUPTCY Section 16.01 Events of Default.. This Lease is made upon the condition that Tenant shall punctually and faithfully perform and fulfill all of the NestieToliHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins/CD 29 covenants, conditions and agree as by it to be performed as set forth in th ease. In addition to events elsewhere stated in this Lease as Events of Default, the following shall be deemed to be an Event of Default (each of which is sometimes referred to as an "Event of Default"): (a) Tenant's failure to pay Minimum Rent and/or Percentage Rent and/or Additional Rent or any installment or year-end adjustment if such failure continues for ten (10) days after written notice by Landlord to Tenant; or (b) Tenant's failure to submit Plans on or before the Plan Submittal Date and in accordance with Section 2.03, or to correct deficiencies in its Plans and timely resubmit any "disapproved" Plans, or to commence Tenant's Work on or before the Construction Commencement Date and in accordance with the terms and conditions of this Lease; or (c) Tenant's failure to open its business to the public in the Premises on or prior to the Required Opening Date, or to open the Premises or to keep the Premises open in the manner and on the days and hours required by this Lease, or if Tenant vacates or abandons the Premises; or (d) Tenant's failure to observe or perform any of the covenants, terms or conditions set forth in Article 15 (relating to assignment and subletting); or (e) the sale or removal of a substantial portion of Tenant's property located in the Premises in a manner which is outside the ordinary course of Tenant's business; or (f) Tenant's failure to maintain inventory levels and employee staff in accordance with the provisions of Article 7; or (g) Tenant's failure to pay timely any Minimum Rent, Percentage Rent and/or Additional Rent or other sums reserved hereunder or to report timely Gross Sales where such failure shall continue or be repeated for two (2) consecutive months or for a total of three (3) months in any period of twelve (12) consecutive months; or (h) Tenant's failure to observe or perform any of the Lease covenants, terms, or conditions more than three (3) times in the aggregate in any period of twelve (12) consecutive months; or 0) except as otherwise provided in this Lease, Tenant's failure to observe or perform any of the other Lease covenants, terms, or conditions for a period of twenty (20) days after written notice thereof from Landlord to Tenant (unless such failure cannot reasonably be cured within twenty (20) days and Tenant shall have commenced to cure said failure within twenty (20) days and continues diligently to pursue the curing of the same until completed); or (j) the commencement of levy, execution, or attachment proceedings against Tenant or Guarantor or a substantial portion of Tenant's or Guarantors assets; the commencement of levy, execution, attachment or other process of law upon or against Tenant's leasehold estate; the application for or the appointment of a liquidator, receiver, custodian, sequestrator, conservator, trustee, or other similar judicial officer for Tenant or Guarantor or for all or any substantial part of the property of Tenant or Guarantor (and such appointment continues for a period of thirty (30) days); the insolvency of Tenant or Guarantor of Tenant in bankruptcy or equity sense; any assignment by Tenant or Guarantor for the benefit of creditors; or (k) the commencement of a case by or against Tenant or Guarantor under any insolvency, bankruptcy, creditor adjustment or debtor rehabilitation laws, state or federal; or the determination by Tenant or Guarantor to request relief under any insolvency proceeding, including any insolvency, bankruptcy, creditor adjustment or debtor rehabilitation laws, state or federal, and in no event shall the Premises or Tenant's interest in this Lease become an asset in any such proceedings. Section 16.02 Landlord's Remedies. (a) Landlord's Remedies. Landlord may treat any Event of Default as a material breach of this Lease. Landlord's failure to insist upon strict performance of any covenant, term, or condition of this Lease or to exercise any right or remedy shall not be deemed a waiver or relinquishment for the future of such performance, right, or remedy. In addition to any and all other rights or remedies of Landlord in this Lease or at law or in equity, Landlord shall have the following rights and remedies if there shall occur any, Event of Default (none of which shall be construed as an election to forego any of the other remedies then or in the future), all without being liable to prosecution or for damages: 0) to accelerate the whole balance or any part of Rent and all other sums payable under this Lease by Tenant for the entire balance of the Term; and/or (ii) to terminate this Lease, re-enter and take possession of the Premises, and remove all persons and contents therefrom, all without claim or right for Tenant, as allowed by law; and/or (iii) to bring suit for the collection of Rent and damages without entering into possession of the Premises or terminating this Lease; and/or (iv) to terminate Tenant's right of possession of the Premises by summary proceedings (or otherwise, as allowed by law) without terminating this Lease and, in the event of re-entry and termination of possession, Landlord shall have the right to remove any personal property from the Premises and either treat such property as abandoned or place the same in storage at Tenant's sole cost, expense, and risk; and/or (v) to the extent legally permitted, to enter the Premises and, without further demand or notice, proceed to distress and sale of the goods, chattels, personal property, and other contents of the Premises and to levy the Rent and/or to cause issuance of and levy of distress writ for Rent upon the contents of the Premises. Tenant shall pay all costs and officers' commissions including watchmen's wages and sums chargeable by Landlord and charges which Landlord may impose by statute as commissions to the constable or other persons making the levy and, in such cases, all costs, officers' commissions, and other charges shall immediately attach and become part of Landlord's claim for Rent; any tender of Rent without said costs, commissions, land charges made after the issuance of a warrant of distress shall not be sufficient to satisfy Landlord's claim. NestleToll HouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins/CD 30 (b) Confession of Judgment - Rent Tenant covenants and agrees that if there is an Event of Default, then Landlord may, without limitation, cause judgments for money to be entered against Tenant and, for those purposes, Tenant hereby grants the following warrant of attorney: Tenant hereby irrevocably authorizes and empowers any prothonotary, clerk of court, attorney of any court of record, and/or Landlord (as well as someone acting for Landlord) in any and all actions commenced against Tenant for recovery of the Rent and/or other amounts to be paid to Landlord by Tenant to appear for Tenant, assess damages, and confess or otherwise enter judgment against Tenant for all or any part of the Rent and/or other amounts to be paid to Landlord by Tenant including, without limitation, sums under Section 16.02(a), together with interest, costs, and an attorneys' commission of five percent (5%) of the full amount of such Rent, amounts and sums. Thereupon, writs of execution as well as attachment may forthwith issue and be served without any prior notice, writ, or proceeding whatsoever except as may otherwise be required by applicable law. The warrant of attorney herein granted shall not be exhausted by one or more exercises of it; successive actions may be commenced and successive judgments may be confessed or otherwise entered against Tenant, from time to time, as often as any of the Rent and/or other amounts and sums shall fall or be due or be in arrears. This warrant of attorney may be exercised during the Term of the Lease, any extension or renewals thereof, and/or after the termination or expiration of the Term. The provisions of Section 16.02(d) are incorporated herein by this reference. (c) Confession of Judgment - Possession Tenant covenants and agrees that if there is an Event of Default, this Lease is terminated, or the Term or any extensions or renewals thereof is terminated or expires, then, and in addition to the rights and remedies set forth in Section 16.02(b), Landlord may, without limitation, cause judgments in ejectment and/or for possession of the Premises to be entered against Tenant and, for those purposes, Tenant hereby grants the following warrant of attorney: Tenant hereby irrevocably authorizes and empowers any prothonotary, clerk of court, attorney of any court of record and/or Landlord (as well as someone acting for Landlord) in any and all actions commenced for recovery of possession of the Premises to appear for Tenant and confess or otherwise enter judgment in ejectment and/or for possession of the Premises against Tenant and all persons claiming directly or indirectly by, through, or under Tenant. Thereupon, writ of possession may forthwith issue and be served, without any prior notice, writ, or proceeding whatsoever except as may otherwise be required by applicable law. If, for any reason after the foregoing action or actions shall have been commenced, it shall be determined that possession of the Premises should remain in or be restored to Tenant, Landlord shall have the right to commence one or more further actions as set forth herein to recover possession of the Premises including, without limitation, appearing for Tenant and confessing or otherwise entering judgment for possession of the Premises. The provisions of Section 16.02(d) are incorporated herein by this reference. (d) Release. In any action or proceeding described in or in connection with Section 16.02(b) and/or Section 16.02(c), if a copy of this Lease is verified by Landlord (or someone acting for Landlord) to be a true and correct copy of this Lease (and such copy shall be conclusively presumed to be true and correct by virtue of such verification), then the filing of the original of this Lease shall not be necessary, notwithstanding any statute, rule of court of law, custom or practice to the contrary. Tenant hereby releases to Landlord, anyone acting for Landlord, and all attorneys who may appear for Tenant, all errors in procedure regarding the entry of judgment. or judgments by confession or otherwise and all liability therefor. The right to enter judgment or judgments by confession or otherwise by virtue of the warrants of attorney contained in this Lease and to enforce all of the other provisions of this Lease may be exercised by any assignee of Landlord's right, title, and interest in this Lease in such assignee's own name, notwithstanding any statute, rule of court or law, custom or practice to the contrary. (e) Waiver. Tenant expressly waives (to the extent legally permitted to be waived): 0) the benefit of all laws (now or hereinafter in force) exempting any goods in the Premises or elsewhere from distraint, levy, or sale in any legal proceedings taken by Landlord to enforce any rights under this Lease; (ii) the benefit of all laws (now or hereinafter in force) regarding any limitation as to the goods upon or time within which distress is to be made after the removal of goods, and Tenant further relieves Landlord of the obligation of proving or identifying such goods, it being agreed that all goods of Tenant, whether or not upon the Premises, shall be liable to distress for rent; (iii) the right to issue a writ of replevin for the recovery of any goods seized under a distress for Rent or levy or seek to recover any goods attached upon an execution for Rent, damages, or otherwise; (iv) the right to delay execution on any real estate that may be levied upon to collect any amount which may become due under the terms and conditions of this Lease and any right to have the same appraised; Tenant hereby authorizing the Prothonotary or Clerk of Court at Landlord's instance to enter a writ of execution or other process upon Tenant's voluntary waiver and agreeing that said real estate may be sold on a writ of execution or other process; (v) all rights under applicable law authorizing the sale of any goods distrained for rent at any time after seven (7) days (or other applicable statutory period) from said distraint without any appraisement and condemnation thereof; and (vi) the right to any specific notice required under certain circumstances, or any other notice required or otherwise provided by statute as a condition to commencing summary proceedings or an action for possession, or to terminating this Lease or retaking of possession, Tenant hereby agreeing that the respective notice periods provided for in this Lease shall be sufficient in any such case; and (vii) all rights of redemption under applicable law. (f) Insolvency. Notwithstanding Tenant's obligation to pay Minimum Rent, Percentage Rent, and Additional Rent as of the first day of each month during the Term, in the event that an insolvency, bankruptcy or similar proceeding is filed by or against Tenant or Guarantor (if any), Tenant shall be obligated to pay all such Minimum Rent, Percentage Rent, and Additional Rent on a ratable basis from the date of. the commencement of any such proceeding through the end of the month in which such proceeding is commenced. Furt'iermore, notwithstanding anything contained herein to the contrary, in the event that a bankruptcy or similar insolvency proceeding is filed by or against Tenant, and Landlord is subjected to any avoidance or similar claim under Chapter 5 of the Bankruptcy Code (as defined herein) or otherwise in or connection with such proceeding, Landlord shall have or may assert any and all claims against Tenant or its trustee (or similar representative) to the fullest extent permitted by this Lease. Section 16.03 Damages (a) Damages. If Landlord elects to terminate Tenant's right to possession under this Lease but not to N estl eTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinai March 7, 20081 Collins/CD 31 terminate this Lease, Landlord m . let the Premises (or any part thereof) for account of Tenant at such rentals and upon such terms and conditions as Landlord shall deem appropriate (which may be less than or exceed the balance of the Term) and, to the extent Landlord receives the Rent therefor, Landlord shall apply the Rent 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 repairing or remodeling or altering the same for reletting, and any other expenses, rent concessions, commissions, and charges paid, assumed, or incurred by or on behalf of Landlord in connection with reletting the Premises (collectively, "Costs of Reletting"), and then to the fulfillment of Tenant's covenants under this Lease. Tenant covenants to pay to Landlord Rent up to the time of termination of Tenant's right to possession under this Lease and, thereafter and until the end of the Term, the equivalent of the amount of Rent under this Lease less the net avails of such reletting (if any) during the same period, and the same shall be due and payable by Tenant on the dates Rent is due under this Lease. Any reletting by Landlord shall not be construed as an election by Landlord to terminate this Lease unless a notice of such intention is given by Landlord to Tenant. Regardless of Landlord's reletting without terminating this Lease, Landlord may at any time thereafter elect to terminate this Lease. In any event, Landlord shall not be liable for, and Tenant's obligations hereunder shall not be diminished by reason of, any failure by Landlord to relet the Premises or any failure by Landlord to collect any sums due upon such reletting. Tenant shall not be entitled to any Rent received by Landlord whether or not in excess of Rent provided for in this Lease. Landlord may file suit to recover any sums falling due under the terms of this subsection from time to time, and no suit or recovery of any sums due Landlord hereunder shall be a defense to any subsequent action brought for any amount not reduced to judgment in favor of Landlord. Notwithstanding anything to the contrary contained herein, Landlord shall have no duty to mitigate damages in the event Landlord terminates this Lease (unless prohibited by applicable state law). Furthermore, (i) Landlord is under no affirmative duty to maximize rent collected from any replacement tenant dr otherwise mitigate Landlord's damages, (ii) Tenant waives any legal or equitable right or defense that Landlord mitigate its damages, and (iii) regardless of whether Landlord takes any action to mitigate Landlord's damages, such termination shall operate to accelerate the entire balance of Rent due over the entire Lease Term, which shall become immediately due and payable by Tenant, along with all overdue Rent and charges. The foregoing sentences shall survive the termination of this Lease. (b) Benefit of the Baroain Damages. If Landlord elects to terminate this Lease instead of terminating only Tenant's right to possession, Landlord shall have the right to immediately recover against Tenant as damages for loss of the bargain, and not as a penalty, the following "Benefit of the Bargain Damages" (as reasonably determined by Landlord): 0) the present value of the pro;-.cted Rent payable by Tenant under this Lease that would have accrued for the balance of the Term (Additional Ren:: projections to be based on the Additional Rent which would have been payable pursuant to this Lease for the full calendar year prior to the calendar year in which the default occurred, increasing annually on the first of each year after such calendar year at the rate of six percent (6%) per annum compounded if any such increase is not otherwise set forth in this Lease), plus (ii) any other amounts necessary to compensate Landlord for all detriments proximately caused by Tenant's failure to perform its obligations under this Lease, including reasonable attorneys' fees, plus (iii) interest on all sums due Landlord at the Default Rate (hereafter defined), less (iv) the then-present fair market rental value of the Premises for the balance of the Term (taking into account, among other things, the Premises' condition, market conditions, the period of time the Premises may remain vacant before Landlord is able to relet it to a suitable, replacement tenant, and the Costs of Reletting that Landlord may incur in order to enter into a replacement lease). Notwithstanding anything to the contrary contained in this Lease, if, subsequent to the termination of this Lease and the recovery of damages from Tenant pursuant to this subsection (b), Landlord relets the Premises for an effective Rent higher or lower than the Rent assumed for purposes of calculating the Benefit of the Bargain Damages, the Benefit of the Bargain Damages shall not be recalculated and Landlord shall be entitled to retain all of the proceeds of such reletting. (c) Default Rate. The "Default Rate" means the highest amount allowed by applicable law. Any amount of Rent which is not paid by Tenant to Landlord within five (5) calendar days after it is due shall bear interest at the Default Rate. Section 16.04 Landlord's Self-Help. In addition to Landlord's rights to self-help set forth elsewhere in this Lease, if at any time Tenant fails to perform any of its obligations under this Lease in a manner reasonably satisfactory to Landlord, Landlord shall have the right to perform such obligations on behalf of and for the account of Tenant. Landlord shall give Tenant at least three (3) days prior written notice of its election to self-help except in the event of emergency, for which no prior notice shall be required. Upon demand by Landlord, Tenant shall reimburse Landlord for its costs and expenses incurred in exercising self-help, plus interest at the Default Rate from the date Landlord performs such obligation. Landlord's performance of any of Tenant's obligations shall not constitute a release or waiver of Tenant from such obligation. Section 16.05 Landlord's Default. Except as otherwise provided in this Lease, Landlord shall be in default under this Lease if Landlord fails to perform any of its Lease obligations and said failure continues for a period of thirty (30) days after written notice from Tenant to Landlord (unless such failure cannot reasonably be cured within thirty (30) days and Landlord shall have commenced to cure said failure within 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, titlh, and interest of Landlord in the Shopping Center (as the Shopping Center may then be encumbered) and Landlord shall not be liable for any deficiency. In no event shall Tenant have the right to levy execution against any property of Landlord other than Landlord's right, title, and interest in the Shopping Center. In no event shall Landlord be responsible for* be liable to Tenant for any consequential or special damages that NestleTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins= 32 o'6cur as a result of Landlord's h of a term, covenant, obligation or c ion under this Lease. No default by Landlord under this Lease shall give Tenant the right to terminate this Lease. Landlord's obligations to Tenant and Tenant's obligation to pay Rent are independent covenants in all respects. In the event that Landlord transfers its interest in the Shopping Center, the transferor Landlord shall not have any further liability or obligations under this Lease after the date of the transfer and Tenant shall look solely to Landlord's successor for performance of the conditions, obligations and covenants set forth in this Lease. Section 16.06 Lecial Expenses. (a) In the event that (i) Landlord retains counsel and/or institutes any suit against Tenant for violation of or to enforce any of the covenants or conditions of this Lease, or (ii) Tenant institutes any action against Landlord for violation of any covenants or conditions of this Lease, or (iii) either party institutes a suit against the other for a declaration of rights hereunder, or (iv) either party intervenes in any suit in which the other is a party to enforce or protect its interests or rights hereunder; then the prevailing party in any such suit shall be entitled to all its costs, expenses and reasonable attorneys' fees in connection therewith. (b) In the event a proceeding is filed by or against Tenant under any chapter of the United States Bankruptcy Code, as presently existing or as may be amended (the "Bankruptcy Code"), or Tenant makes an assignment for the benefit of creditors, or commences or otherwise becomes the subject of any insolvency, receivership, or similar proceeding, Landlord shall be entitled to recover from Tenant or any trustee, custodian, receiver, assignee, or other representative acting on Tenant's behalf, all of Landlord's costs, expenses, and reasonable attorneys' fees incurred in or in connection with any such proceeding. In addition to any other sums due and owing by Tenant under this Lease, such costs, expenses, and reasonable attorneys' fees shall constitute (i) an obligation of Tenant hereunder and (ii) a component of any cure claim assertable by Landlord under 11 U.S.C. § 365(b) or otherwise. Section 16.07 Landlord's Right of First Refusal for Tenant's Leasehold Interests. 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 Bankruptcy Code, or if proceedings for reorganization or composition with creditors under any federal or state law are instituted by or against Tenant and Tenant or Tenant's trustee (as the case may be) subsequently attempts tt assign this Lease or Tenant's interests in this Lease pursuant to 11 U.S.C. § 365 or otherwise, Landlord shall have the right of first refusal to purchase and assume this Lease and Tenant's interests thereunder (collectively, "Tenant's Leasehold Interests") upon the following terms and conditions: (a) If Tenant receives a bona fide, arm's length offer to purchase Tenant's Leasehold Interests (the "Third Party Offer"), which Third Party Offer Tenant or Tenant's trustee (as the case may be) deems acceptable, Tenant or Tenant's trustee shall first deliver a copy to Landlord ("Landlord's OR Notice"). Landlord shall thereafter have the right to assume and acquire Tenant's Leasehold Interests described in Landlord's RFR Notice on the same terms and conditions as set forth in the Third Party Offer. (b) Within thirty (30) days following Landlord's receipt of Landlord's RFR Notice, Landlord shall notify Tenant or Tenant's trustee (as the case may be) in writing of Landlord's intention to exercise the right of refusal to acquire Tenant's Leasehold Interests or be deemed to have waived such right of first refusal with respect to the transaction described in Landlord's RFR Notice. If Landlord timely exercises Landlord's right of first refusal, Tenant or Tenant's trustee shall be deemed to be contractually bound to sell and assign Tenant's Leasehold Interests exclusively to Landlord in accordance with the terms and conditions set forth in the Third Party Offer. If Landlord fails timely to respond to Landlord's RFR Notice or declines to exercise the right of first refusal granted hereunder in such instance, then Tenant or Tenant's trustee (as the case may be) shall be free to sell and assign Tenant's Leasehold Interests described in Landlord's RFR Notice to the proposed purchaser (the "Third Party Purchaser") on the same terms and conditions set forth in the Third Party Offer; provided, however, that the sale and assignment of Tenant's Leasehold Interests to the Third Party Purchaser shall be and remain subject to this right of first refusal provision, such that any future assignment of this Lease by the Third Party Purchaser or any successor thereto, shall be and remain subject to the right of refusal herein granted to Landlord. (c) The parties hereby specifically acknowledge and agree that the right of first refusal granted to Landlord herein is not intended to operate, and shall not be construed, as a provision that prohibits, restricts, or conditions the assignment of this Lease within the meaning of 11 U.S.C. § 365(f) or any similar statutory provision. 11 Section 16.08 Shopping Center Lease. Tenant agrees that this Lease is a "lease of real property in a Shopping Center" as such term is used in the Bankruptcy Code, and that neither Tenant's interest in this Lease nor in any estate created hereby shall pass to any trustee, receiver, assignee for the benefit of creditors, or otherwise except as may be specifically provided therein. Nothing contained in this Section 16.08 shall be deemed in any manner to limit Landlord's rights and remedies under the Bankruptcy Code. Section 16.09 Resection of the Lease. Notwithstanding any other provision of this Lease, in the event Tenant rejects this Lease under the applicable provisions of the Bankruptcy Code, Landlord shall be entitled to a claim for damages under the Lease to the full extent provided by Section 502(b)(6) of the Bankruptcy Code, without reduction based on Landlord's failure to mitigate damages, and Tenant hereby specifically waives any rights (1) to assert that Landlord has a duty to mitigate damages, (ii) to object to any claim filed or asserted by Landlord in Tenant's bankruptcy proceeding on the grounds that Landlord has a duty to mitigate damages and has breached such duty, in whole or in part, and/or (iii) to assert the existence of any such duty to mitigate against Landlord in any bankruptcy or. non bankruptcy proceeding involving the parties to this Lease or the Guarantor (if any). } NestleToll HouseCafe-CapitalCity-Kiosk-F inalFinalFinalFinal March 7, 20081 Collins= 33 4 0 ARTICLE 17: SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE Section 17.01 Subordination of Lease. Except as hereinafter provided, Tenant agrees that this Lease is and shall always be subject and subordinate to the following: (i) any lease wherein Landlord is the lessee, (Ii) the lien of any or all mortgages or deeds of trust, and to the interest thereon, (iii) all modifications, consolidations, renewals, replacements and extensions and future advances made thereunder ((ii) and (iii) are collectively referred to as "Mortgage"). Such subordination shall apply regardless of whether such lease or Mortgage now exists or may hereafter be created with regard to all or any part of the Shopping Center. Such subordination shall be effective without the execution of any further instrument. Tenant also agrees that any holder of such lease or Mortgage ("Mortgagee") may elect to have this Lease prior to any lease or lien of its Mortgage and, in the event of such election and upon notification by such lessor or Mortgagee to Tenant to that effect, this Lease shall be deemed prior in lien to the said lease and/or Mortgage, whether this Lease is dated prior to or subsequent to the date of said lease and/or Mortgage. Section 17.02 Tenant's Attornment. In the event of any foreclosure of or the exercise of a power of sale under any Mortgage covering the Premises or in the event of the termination of any lease referred to in Section 17.01 wherein Landlord is the lessee, Tenant shall attorn to and recognize the purchaser or Landlord's lessor as Landlord under this Lease. Section 17.03 Instruments to Carry Out Intent. Tenant agrees that upon the request of Landlord, Landlord's lessor, or Mortgagee, Tenant shall execute and deliver whatever instruments may be required to carry out the intent of Sections 17.01 and 17.02, and in the event Tenant 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 subordination of this Lease shall provide that Landlord's Mortgagee, or such purchaser of Landlord's interest, or Landlord's lessor shall not be (i) liable for any action or omission of any prior landlord (including Landlord) under the Lease, (ii) subject to any off sets, claims or defenses which Tenant might have against prior landlord (including Landlord). (iii) bound by any Rent for which Tenant might have paid for more than the current month to any prior landlord (including Landlord), (iv) bound by any amendment or modification of the Lease or any other agreement concerning the Lease made without Mortgagee's or purchaser's written consent, and/or (v) responsible in any way for any Security Deposit which was delivered to Landlord but was not subsequently delivered to Mortgagee or purchaser. Section 17.04 Estoppel Certificate. Within fifteen (15) days after written request by Landlord, Mortgagee, or any purchaser of Landlord's interest in the Lease, Tenant shall execute and deliver to Laridlord, Mortgagee, purchaser, or to such other addressee(s) as Landlord may designate (and Landlord, Mortgage, purchaser, and any such addressee(s) may rely thereon), a statement in writing in form and substance satisfactory to Landlord, Mortgagee, and/or purchaser (herein called "Estoppel Certificate"), certifying as to such matters as may be reasonably requested by Landlord, Mortgagee, and/or purchaser. Tenant expressly agrees that, at any time, Landlord may assign its interest in the Estoppel Certificate to its prospective or existing transferee of all of any part of Landlord's interest in the Shopping Center or this Lease, or to any of Landlord's lenders, who may act in material reliance thereon. Tenant's failure to provide timely an Estoppel Certificate shall constitute an acknowledgment by Tenant that the statements contained in such certificate are true and correct without exception and my be relied upon by Landlord, Mortgagee, and any prospective or existing transferee of all or any part of Landlord's interest in the Shopping Center or this Lease, and may also be deemed an Event of Default by Landlord. Section 17.05 Landlord's Rights of Alienation. Landlord reserves the right to sell, lease or sever the ownership of or title to the various sections of the Shopping Center and/or to place separate Mortgages on said sections. Tenant shall execute from time to time such instruments reasonably required by Landlord and Mortgagee to effCctuate the provisions of this Section. ARTICLE 18: MISCELLANEOUS Section 18.01 Interpretation. (a) Captions. 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 define, limit, construe, or describe the scope or intent of such Sections or Articles of this Lease. (b) Landlord and Tenant Defined. If more, than one person or corporation is named as Landlord or Tenant in this Lease and executes the same as such or becomes Landlord or Tenant, then the words "Landlord" or 'Tenant" wherever used are intended to refer to all such persons or corporations, and the liability of such persons or corporations for compliance with and performance of all the terms, covenants, and provisions of this Lease shall be joint and several. (c) Use of Pronoun. The use of the neuter singular pronoun to refer to Landlord or Tenant shall be deemed a proper reference even though Landlord or Tenant may be an individual, a partnership, a corporation, or a group of two or more individuals or corporations. The necessary gr mmatical changes required to make the provisions of this Lease N estieToll HouseCafe-CapitalCity-Kiosk-Final FinalFinalFinal March 7, 20081 Collins/CD 34 apply in the plural number whehere is more than one Landlord or Ant and to corporations, associations, partnerships, or individuals, males or females, shall in all instances be assumed as though in each case fully expressed. (d) Construction of Lease. Although the printed provisions of this Lease were drawn by Landlord, this Lease shall not be construed for or against Landlord or Tenant; rather, this Lease shall be interpreted in accordance with the general tenor of the language in an effort to reach the intended result. Section 18.02 Quiet Eniovment. So long as Tenant shall pay timely the Rent as set forth in this Lease and observe and perform of all of the agreements, covenants, terms, and conditions on Tenant's 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 claiming by, through, or under Landlord, subject, nevertheless, to the terms and conditions of this Lease, and any Mortgage, leases and other matters to which this Lease is subject or subordinate. Section 18.03 Notices. Any notice, demand, request, approval, consent, or other instrument which may be or is required to be given under this Lease ("Notice") shall be in writing and sent to the address(es) set forth in the Fundamental Lease Provisions by postage prepaid, registered or certified mail (return receipt requested), or by nationally recognized expedited delivery service which provides proof of delivery. If mailed, Notice shall be deemed to have been given on the date when actually received or refused or, in the case of Notice delivered by nationally recognized expedited delivery service, when received. Landlord may also deliver any such Notice to Tenant by delivery in person at such notice address or at the Premises and, in such event, Notice shall be deemed to have been given when so delivered, the affidavit of the person making personal delivery shall be conclusive proof of delivery and of the delivery time and date. Notices given by Landlord may be given on its behalf by Agent or by any attorney for Landlord or Agent. Any Notice 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. All changes of notice address requested by Tenant shall only be valid and binding on Landlord if executed by a duly authorized officer, partner, or owner of Tenant. Section 18.04 Real Estate Investment Trust. If the ownership of the Shopping Center is in a Real Estate Investment Trust ("REIT") Landlord and Tenant agree that all Rent shall qualify as "rents from real property" within the meaning of Section 856(d) of the Internal Revenue Code of 1986, as amended (the "Code") and the U.S. Department of Treasury Regulations promulgated thereunder (the "Regulations"). Should the Code, or the Regulations, or interpretations thereof by the Internal Revenue Service contained in the Revenue Rulings, be changed so that any Rent no longer qualifies as "rent from real property" for the purposes of Section 856(d) of the Code and the Regulations, other than by reason of the application of Section 856(d)(2)(B) or 856(d)(5) of the Code or the related Regulations, such Rent shall be adjusted so that it will so qualify; provided, however, that any adjustments required pursuant to this Section shall be made so as to produce the equivalent (in economic terms) Rent as payable prior to such adjustment and that such adjustments shall not result in any increase in Tenant's Rent. Section 18.05 Reciprocal_Easement Aareement. Tenant understands and agrees with Landlord that, notwithstanding anything to the contrary contained in this Lease, the Shopping Center (including, without limitation, the Common Areas and the Premises) is and shall be subject, subordinate, and otherwise junior to any reciprocal or cross easement agreement (as they may be or may have been created, amended, supplemented, o otherwise modified from time to time) between Landlord and each party thereto (such easement agreements herein collectively called the "REA" ). Section 18.06 Relationship of Parties. Nothing contained in this Lease shall be deemed or construed as creating the relationship of principal and agent, partnership, or joint venture between the parties hereto or cause Landlord to be responsible in any way for Tenant's acts, debts, or obligations. Section 18.07 Successors. Except as otherwise specifically set forth in this Lease, all rights, obligations, and liabilities herein given to or imposed upon Landlord, Agent, Tenant, and Guarantor shall extend to and bind the several respective heirs, executors, administrators, trustees, receivers, legal representatives, successors and assigns of such parties; however, no rights shall inure to the benefit of any assignee, legal representative, trustee, receiver, legatee, or other personal representative of Tenant unless the assignment to such party has been consented to by Landlord in writing. Section 18.08 Survival of Obligations. All of Tenant's obligations accruing during the Term pursuant to Sections 4.04, 4.05, 4.06, 5.01, 5.02, 7.03, 7.07, 8.06, 11.03, 11.05, 11.06, 16.03, 18.09, and as otherwise specifically set forth in this Lease, shall survive the expiration or earlier termination of the Term. Section 18.09 Broker's Commission. Landlord and Tenant represent and warrant°`that they have had no dealings, negotiations, or consultations with respect to the Premises, the Shopping Center or this transaction with any broker or finder except Agent and that, with the NestleToll H ouseCafe-Cap ital C ity-Kiosk-Final FinalFinalFina i March 7, 20081 Collins/CD 35 exception of Agent, no broker o eder called the Premises or any other s We in the Shopping Center to Tenant's attention for lease. In the event that any broker or finder other than Agent claims to have submitted the Premises or any other space in the Shopping Center to Tenant, to have induced Tenant to lease the Premises, or to have taken part in any dealings, negotiations, or consultations with respect to the Premises, the Shopping Center, or this transaction, then the party having failed to disclose such contact will be responsible for and will defend, indemnify, and save the other party and Agent harmless from and against all costs, fees (including attorneys' fees), expenses, liabilities, and claims incurred or suffered by such party and/or Agent as a result thereof. Such agreement shall survive the expiration or earlier termination of this Lease. Section 18.10 Invaliditv: Severabilitv. It is the intention of the parties hereto that if any provision of this Lease is capable of two constructions, one of which would render the provision invalid and the other of which would render the provision valid, then the provision shall have the meaning or meanings which would render it valid. If any term, condition, or covenant of this Lease or the application thereof to any persons or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease or the application of such term or provision to the persons or circumstances, other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, condition, and covenant shall be valid and enforced to the fullest extent permitted by law. Furthermore, each covenant, agreement, obligation and other provision contained in this Lease is and shall be deemed and construed as a separate and independent covenant of the party bound by, undertaking, or making the same, and not dependent on any other provision of this Lease unless expressly so provided. Section 18.11 Time of the 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 18.12 Applicable Law. The laws of the state in which the Shopping Center is located shall govern the validity, performance, and enforcement of this Lease. Any party to this Lease instituting legal suit or action for enforcement of any obligation contained herein shall do so only in the state in which the Shopping Center is located. Section 18.13 Waiver. Landlord shall not be deemed to have waived any covenant, term, agreement, or condition of this Lease unless such waiver is in writing and executed by Landlord. Landlord's waiver of any breach of any Lease covenant, term, agreement, or condition shall not be deemed to be a waiver of any subsequent breach of the same or any other Lease covenant, term, agreement or condition. The subsequent acceptance by Landlord of Rent due hereunder shall not be deemed to be a waiver of any preceding breach by Tenant of any Lease covenant, term, agreement, or condition, 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 its acceptance of the Rent. Landlord's waiver with respect to one or more tenants or occupants of the Shopping Center shall not constitute a waiver in favor of any other. Landlord's consent to any act by Tenant requiring Landlord's consent shall not be deemed to waive or render unnecessary Landlord's consent to or approval of any subsequent similar act by Tenant. Section 18.14 Accord and Satisfaction. Tenant's payment or Landlord's receipt of a lesser amount of Rent than the amount stipulated in this Lease shall be deemed to be on account of the earliest stipulated Rent then due and payable. Tenant agrees that 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, whether such check or letter is forwarded to Landlord's lock box or directly to Landlord, Agent or elsewhere. Furthermore, Landlord or Landlord's bank may accept such check or payment without prejudice to Landlord's rights and remedies to recover the balance of Rent or pursue any other right or remedy available to it. Section 18.15 Corporate Tenants. If Tenant's form of organization is as an entity (rather than a natural person), the persons executing this Lease on behalf of Tenant hereby covenant and warrant that: Tenant is a duly constituted entity qualified to do business in the state in which the Shopping Center is located; all Tenant's franchise, corporate and other lienable taxes have been paid to date; all future forms, reports, fees, and documents necessary for Tenant to comply with applicable laws will be filed by Tenant when due; and such persons are duly authorized by the governing body of such entity to execute and deliver this Lease on behalf of the entity. Section 18.16 Recording. This Lease shall not be recorded and Tenant shall not record a short form or memorandum of lease; however, Landlord shall have the right to record a short form or memorandum of lease, at Landlord's expense, at any time during the Term, and Tenant shall execute same. Section 18.17 Agent of Landlords Service Providers. (a) Agent of Landlord. PREIT Services, LLC and/or PREIT-Rubin, Inc. has acted as Landlord's agent ("Agent") in connection with the execution of this Lease and shall not in any event be held liable to Landlord or to Tenant for the fulfillment or non-fulfillment of any of the terms, covenants, or conditions of this Lease or for any action or proceeding that may be taken by Landlord against Tenant or by Tenant against Landlord. Any waiver of Landlord's liability hereunder (including any waiver of subroga l n rights) shall apply with equal force and effect as a waiver of Agent's liability. NestleTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 2008 \ Coffins/CD 36 (b) Service Providers. Any services which Landlord is required to furnish pursuant to this Lease may, at Landlord's option, be furnished from time to time, in whole or in part, by employees of Landlord or Agent or its employees or by one or more third persons hired by Landlord or Agent. Tenant agrees that upon Landlord's written request, it will enter into direct agreements with Agent or other parties designated by Landlord for the furnishing of any such services required to be furnished by Landlord, in form and content approved by Landlord, provided, however, that no such contract shall result on an estimated basis in Tenant having to pay In the aggregate more money on account of its occupancy of the Premises under the terms of this Lease, or having to receive fewer services or services of a lesser quality than it is presently entitled to receive under this Lease. Section 18.18 Finalization of Charges. Notwithstanding anything to the contrary contained in this Lease, Tenant's failure to object to any statement, invoice, or bill rendered by Landlord within a period of one hundred eighty (180) days after Tenant's receipt shall constitute Tenant's acquiescence with respect thereto and shall render such statement, invoice, or billing a final and binding account between Landlord and Tenant. The foregoing provision shall supersede any right to audit or request supporting documentation from Landlord which may otherwise be provided by this Lease and is not intended to grant any such right to Tenant not otherwise expressly provided elsewhere in this Lease. Section 18.19 Financial Information. Within twenty (20) days of Landlord's written request, Tenant agrees (i) to deliver to Landlord such financial information concerning Tenant, Guarantor and Tenant's and Guarantor's business operations as Landlord, any Mortgagee, prospective mortgagee, purchaser, or prospective purchaser, may request and in a form acceptable to such requestor; and/or (ii) to provide Landlord with written, authorization to perform a credit check of Tenant and/or Guarantor on a form acceptable to Landlord. If the financial or credit rating of Tenant and,for Guarantor is not acceptable to Landlord, Landlord shall have the right to cancel this Lease if Tenant refuses to execute or supply such additional assurances and/or guarantors as Landlord shall require within thirty (30) days after Landlord's request, which request may not be made after Landlord delivers possession of the Premises to Tenant. After Landlord delivers possession of the Premises to Tenant, Tenant's failure to provide Landlord with a financial statement and/or credit check authorization shall constitute an Event of Default. If Landlord exercises its cancellation right, this Lease shall be deemed null and void, each of the parties shall be released from any other or further liability, any Security Deposit shall be refunded to Tenant without interest, and neither party shall have any liability to the other by reason of such cancellation. Section 18.20 Tenant's Guarantor. Attached hereto as "Exhibit D" is a Guarantee of Lease executed by Robert Delligatti and Sarah Delligatti, 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 at any time that Guarantor's credit worthiness, economic strength, or financial status falls below an acceptable level, or if Guarantor breaches or otherwise repudiates its obligations under the Guarantee, or if any bankruptcy or other similar proceeding is filed by or against Guarantor and not dismissed within sixty (60) days thereafter, or if Guarantor is an individual and Guarantor dies or becomes incompetent, then Landlord may, upon written demand to Tenant, require Tenant within thirty (30) days thereafter to deliver to Landlord alternative or additional security in a form and substance reasonably satisfactory to Landlord so that Landlord will not be deprived of adequate assurance of Tenant's financial ability to comply with its obligations imposed by Lease. Failure to submit timely such alternative or additional security shall be deemed an Event of Default. Section 18.21 Notice to Mortgagee: Performance of Landlord's Obligations. If Landlord or Mortgagee forwards to Tenant written notice of the existence of a Mortgage, then Tenant shall, so long as the Mortgage is outstanding, be required to give to Mortgagee the same notice and opportunity to correct any default as is required to be given to Landlord under this Lease, but Tenant may issue its notice of default to Landlord and Mortgagee concurrently. Tenant shall accept performance of any of Landlord's obligations hereunder by Mortgagee. Section 18.22 Unavoidable Delays. In the event that Landlord, Agent, or Tenant ;hall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, inability to procure labor or materials, failure of power, restrictive governmental laws or regulations, pandemic or viral/bacteriological outbreak, riots, insurrection, war (whether actual or threatened), lack of access to the Shopping Center or Premises due to evacuation or temporary closure (including evacuation or temporary closure of the Shopping Center or Premises by Landlord, government, or police order due to a perceived, threatened, or actual unsafe condition as determined by Landlord, government, or police), damage or governmental order, fire or other casualty or other reason of a similar or dissimilar nature beyond the reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease (an "Unavoidable Delay"), then performance of such act, but not Tenant's obligation to pay Rent, shall be excused for the period of the Unavoidable Delay. The occurrence of an Unavoidable Delay shall not operate to excuse Tenant from completing construction of the Premises within timeframe set forth in Article 2 of the Lease unless Tenant gives written notice to Landlord of the nature and claimed number of days of the Unavoidable Delay within ten (10) days of its occurrence, and Landlord, upon its reasonable satisfaction, shall extend the period of time for Tenant's Work equivalent to the number of days of actual delay. After the Rent Commencement Date, an Unavoidable Delay shall not excuse Tenant from the timely payment of Rent and other sums due by Tenant under this Lease, and such Unavoidable Delay shall not extend the Term. Delays or failures to perform resulting from lack of funds or the unavailability of a particular contractor or personnel shall not be .deemed Unavoidable Delays. Section 18.23 Prior Lease. NestieTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinaiFinal March 7, 20081 Collins/CD 37 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 18.24 Anti-Terrorism Law. (a) Tenant represents and warrants to Landlord as follows: 0) neither Tenant, its constituents or affiliates nor any of their respective agents (collectively, the "Tenant Parties") are in violation of any law relating to terrorism or money laundering including, but not limited to, Executive Order No. 13224 on Terrorist Financing, the U.S. Bank Secrecy Act, as amended by the Patriot Act, the Trading with the Enemy Act, the International Emergency Economic Powers Act and all regulations promulgated thereunder, all as amended from time to time (collectively, "Anti-Terrorism Law"); (ii) no action, proceeding, investigation, charge, claim, report, or notice has been filed, commenced, or threatened against any of the Tenant Parties alleging any violation of any Anti-Terrorism Law; (iii) none of the Tenant Parties has, after due inquiry, knowledge of any fact, event, circumstance, situation or condition which could reasonably be expected to result in any action, proceeding, investigation, charge, claim, report, notice or penalty being filed, commenced, threatened or imposed against any of them relating to any violation of or failure to comply with any Anti- Terrorism Law; (iv) none of the Tenant Parties s a "Prohibited Person". A Prohibited Person means any of the following: a. a person or entity that is "specially designated" on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control or which is owned, controlled by or acting for or on behalf of any such person or entity; b. a person or entity with whom Landlord is prohibited from dealing by any Anti-Terrorism Law; or c. a person or entity that commits, threatens, or conspires to commit or supports "terrorism" (as defined in any Anti-Terrorism Law). (v) none of the Tenant Parties: a. conducts any business or transactions or makes or receives any contribution of funds, goods, or services in violation of any Anti-Terrorism Law; or b. Engages in or conspires to engage in any transaction that evades or avoids, has the purpose of evading or avoiding or attempts to violate any of the prohibitions of any Anti- Terrorism Law. (b) Tenant covenants that it shall not, 0) conduct any business or transaction or make or receive any contribution of funds, goods, or services in violation of any Anti-Terrorism Law; or (ii) engage in or conspire to engage in any transaction that evades or avoids, has the purpose of evading or avoiding or attempts to violate any of the prohibitions of any Anti-Terrorism Law. (c) Tenant agrees to promptly deliver to Landlord (but in any event within ten (10) days of Landlord's written request) any certification or other evidence requested from time to time by Landlord, in its reasonable discretion, confirming Tenant's compliance with the foregoing requirements. Section 18.25 Waiver of Jury Trial. Landlord and Tenant hereby waive all right to a trial by jury in any litigation related to this Lease including any mandatory counterclaim or cross claim. Section 18.25 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 shall cause Landlord irreparable harm. The terms and provisions of this Section shall survive the termination of this Lease (whether by lapse of time or otherwise). Section 18.27 Entire Agreement. (a) This Lease sets forth all of the covenants, promises, agreements, conditions, and understandings between Landlord and Tenant concerning the Premises and the Shopping Center. All prior communications, negotiations, arrangements, letters of intent, brochures, representations, promises, warranties, agreements, and understandings, whether oral or written, between the parties hereto arrd their representatives, are merged herein and extinguished, and this Lease supersedes and cancels the same. Except as otherwise provided herein, no subsequent alteration, amendment, change, or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and executed by the party against which such subsequent alteration, amendment, change, or addition is to be enforced. (b) Tenant hereby acknowledges that (i) this Lease contains no restrictive covenants or exclusives in favor of Tenant; (ii) this Lease shall not be deemed or int:rpreted to contain, by implication or otherwise, any warranty, representation, or agreement on the part of Landlord that any department store, major tenant, or regional or national chain store or any other merchant shall open for business or occupy or continue to occupy any premises in or adjoining the N estleToli HouseC afe-Cap italCity-Kiosk-FinalFi nalFinalFinal March 7, 20081 Collins/CD 38 Shopping Center during the Terany part thereof, or that Tenant shall ge e a certain amount of Gross Sales, or that any reimbursable amount payable by Tenant shall be any speck amount; and Tenant hereby expressly waives all claims with respect to the foregoing and acknowledges that Tenant is not relying on any such warranty, representation, or agreement by Landlord as a matter of inducement in entering into this Lease, as condition of this Lease, or as a covenant by Landlord. Section 18.28 Submission of Lease to Tenant. THE SUBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHALL HAVE NO BINDING FORCE OR EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR LEASING OF THE PREMISES, AND SHALL NOT CONFER ANY RIGHTS OR IMPOSE ANY OBLIGATIONS UPON EITHER PARTY UNTIL THE EXECUTION BY LANDLORD AND THE DELIVERY OF AN EXECUTED ORIGINAL COPY TO TENANT OR ITS REPRESENTATIVE. Section 18.29 Acknowledgement. THE UNDERSIGNED ACKNOWLEDGES THAT IT FULLY UNDERSTANDS THE CONFESSIONS OF JUDGMENT CONTAINED IN SECTION 16.02 AND THAT THE LANDLORD-TENANT RELATIONSHIP CREATED BY THIS LEASE IS COMMERCIAL IN NATURE. TENANT WAIVES ANY RIGHT TO A HEARING WHICH OTHERWISE WOULD BE A CONDITION TO LANDLORD OBTAINING THE JUDGMENTS AUTHORIZED BY SUCH SECTIONS AND AGREES THAT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT LANDLORD MAY OBTAIN A JUDGMENT AGAINST TENANT WITHOUT FURTHER PRIOR NOTICE TO TENANT, AND LANDLORD MAY THEREAFTER GARNISH OR ATTACH AND PLACE A LIEN ON TENANT'S ASSETS OR PROPERTY WITHOUT PRIOR NOTICE OR OPPORTUNITY FOR A HEARING. TENANT HAS CONSULTED WITH AN ATTORNEY REGARDING THE RIGHTS BEING WAIVED HEREUNDER, HAS BEEN FULLY ADVISED OF THOSE RIGHTS, AND KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS; OR TENANT HAS HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY AND KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY REGARDING THE WAIVER OF THESE RIGHTS AND NONETHELESS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS. NestleTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins/CD 39 IN WITNESS WHEREOF, Landlord and Tenant, personal) orb t as of the date first above written. Y by heir duly authorized agents, have executed this Lease LAN) LORD: PREIT SERVICES, LLC, Agent for-PR CAPITAL CITY LIMITED PARTNERSHIP F. CORADINO NestleTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinai March 7, 20081 Collins/CD TENANT: NESTLE TOLL HOUSE CAFE BY CENTRAL PA COOKIE COMPANY, LLC By: Title:_ 6 W./jCP Attest: Title: 40 EXHIBIT "A" Page 1 of 2 A C) D m _ N C1 z i n D ? a a' E `\ ZIMM MAN DRIVE I . ??\\\\\ '?\,?\'?\,?\nn\?\ \?\??\\\\\tl\\ G77TnTTrTnTm J V?? ?\\w An\\\\?\\ ?ti{I?i?fA o rtm ? ?H?i?{? flHfflfl f ? ` ` r ` -J f fNif ffh [ h l? l> I I I!?? 11 oD I H I,? G m S rN ` U/ffHfffffff,`'fi? ?fHNJfHfNfA f ? i h lnnnr? - VffHffffh?h?fhYfffh`?'?lfffff? m ? 1 1 t { _ r m (Jflfflh`fh?lf?fffH,`/rif,H?NfNf? ? ?? ""'?" lni'ILAL CItY MALL URIVE N P This drawing is diagrammatic. Sizes and dimensions are approximate and subject to revision. The demising walls and/or lease line may not currently exist as shown. Any proposed reconfiguration will occur only in accordance with an executed lease agreement. Landlord does not represent that any tenant whose name appears on this plan is now occupying or A continue to occupy any portion of the shopping center. f i l i S i f 3 x' s P 4 3 7 3 x s I n o, R r: 6l n a EXHIBIT "A" Pk E2OF2 L') O G? LJ i'? rn _' -' CG UI l> lJ) C? 0 D _ -I ,D i.n A 49- y~ m o a C ' ? ? w 2 m n y O ? rD ? m O y < _ i a v rte. rC cD L ? rn r U Z C J y ? fN Z N m cc Z> u AmD O f*1 -mrti D2?Dm m0 0 x ?Z ? ^O? m M Z Iii a' 0 m ZU i ''?o ? Z 0r OO-:F c?D rj f 7 2 mc)NO mr D . M a ! 2; AR vf-?iV =O SO 2 l ln , oom? c-r_ 00 Z n I?-1 ZCC) '+zrn? nD0 m r? =0=r?o0 m D h nn pn m$m1y - OM- Zm 0 r Z r , m N D r Z? .y0 m ? Er 7C?KI ya 'DD oxm D m,z NmO- mmX OLn mm c? ;z zn?m DDD-1 m i?N", a x o ? a vwR v Azczi D T j m > D jD ((0?00 fml to O G 2c N ITL':• f??En `F D r?n D ? "A MMCAm Z- O 11 2??v-'o pQ o yn A ` m rn o ? < n ? 2 EXHIBIT " `A-1" STORAGE SPACE EXHIBIT B: UTILITIES Section 6.01 of the Lease provides for the inclusion of this Exhibit as the basis for the determination of utilities used by Tenant in the Premises and the monthly payment therefor. (a) Electricity. Landlord will provide, or cause to be provided at points in or near the Premises facilities to supply electricity to the Premises. Tenant agrees to purchase and pay for such electricity service, as Additional Rent, every month in the Term; provided that Tenant shall not be obligated to pay to Landlord an amount in excess of the amount which Tenant would otherwise be obligated to pay if Tenant were served directly by the incumbent public utility, municipality and/or governmental body or authority supplying such utility. Landlord reserves the right form time to time to designate an alternative electric generation supplier to serve the Shopping Center and the Premises, and Landlord shall have the right from time to time to change the Identify of such supplier as Landlord deems appropriate. To the extent Landlord receives electric service from an alternative alectric generation supplier, Landlord's charges to Tenant for electric service shall not in any event be below Landlord's actual cost to provide such service to Tenant. Landlord reserves the right to collect an additional administrative charge not to exceed fifteen percent (15%) of Tenant's electricity charge described above. Such administrative charge shall be subject to an increase of up to three percent (3%) per Lease Year. Tenant shall also be responsible for any taxes, surcharges, impositions, penalties and other additional charges attributable to the utility service being supplied, provided that such taxes, surcharges, impositions and other charges are required by law to be collected from Tenant or are paid by Landlord to its supplier of the utility service in question. (b) Other Utilities. In the event Landlord shall provide gas, sprinkler or water and sewer service to the Premises, Tenant covenants and agrees to pay the gas, sprinkler or water and sewer charge (both minimum and otherwise) and any other tax, rent, levy, connection fee or meter or other charge which now or hereafter is assessed, imposed or may become a lien upon the Premises, cr the Shopping Center, pursuant to law, order or regulation made or based in connection with the use, consumption, maintenance or supply of gas, sprinkler or water and sewage, or the gas, sprinkler or water or sewerage connection or system. Tenant shall pay all charges for services used by it and supplied by Landlord, a public utility or public authority, or any other person, firm or corporation. Tenant shall pay the fixed amounts shown in 1.01(g) of the Lease, or if not specifically set forth, at rates determined by Landlord from time to time, which shall not exceed the rate charged by the local utility for similar service. (c) . Meter. In the event the Premises does not presently contain an electric or other utility meter, Landlord may install such meter or at Landlord's request Tenant shall, within forty-five (45) days after receipt of such request, at its sole cost and expense, install a meter of a type and at a location approved in advance by Landlord. NestleToll HouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins/CD 42 EXHI: HEATING, VENTILATING, AND AIR- DITIONING Section 6.01 of the Lease provides for the inclusion of this Exhibit as the basis for the determination of utilities and HEATING, VENTILATING, AND AIR-CONDITIONING ("HVAC," as defined, may include any or all elements of heating, ventilating and/or air-conditioning) used by Tenant in the Premises and the monthly payment therefor. Landlord shall not supply HVAC to the Premises and Tenant shall use the existing HVAC unit in the Premises, or install a new unit if none exists. Landlord, in its sole discretion, shall have the right, from time to time, to alter the HVAC systems and equipment serving the Shopping Center or any part thereof, including the Premises, and Tenant agrees to execute and deliver to Landlord such documentation as may be required to effect such alteration; provided, however, that Tenant shall not be required to bear any portion of the cost such of alteration or to incur any additional financial obligation as a result of such alteration. Tenant shall not at any time overburden or exceed the capacity of the HVAC systems and equipment serving the Premises. If Tenant desires or if Landlord deems necessary installation of any additional equipment or revision of the design of the existing equipment because of internal loading causing the temperature in the Premises to exceed the temperature in the Common Areas or other tenant spaces, such installation of additional equipment or revisions of design shall be subject to Landlord's prior approval of Tenant's plans and specifications and shall be at Tenant's sole cost and expense. If Landlord approves such additional equipment or revised design and/or if Landlord provides such additional equipment or revised design, Tenant agrees to pay Landlord, on demand, the cost for providing such additional equipment or revised design. Tenant shall operate its heating and air conditioning so that the occupied space temperature of the Premises will be the same as that in the adjoining mall, and so that the non-occupied space temperature of the Premises will be sufficient to insure adequate freeze protection of domestic water and sprinkler systems when necessary. Tenant shall operate ventilation so that the relative air pressure in the Premises will be slightly less than in the adjoining mall as required by Landlord. NestieTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins= 43 EXHIBIT D: GUARANTEE OF LEA THIS GUARANTEE made this day of , 2008, by Robert Delligatti and Sarah Delligatti, husband and wife, jointly and severally having an address at 230 Hummel Avenue, Lemoyne, PA 17043 ("Guarantor") in favor of PR CAPITAL CITY LIMITED PARTNERSHIP, having an address at 200 S. Broad Street, Philadelphia, PA 19102. Backaround On the day of , 2008, Landlord entered into an Agreement of Lease (hereinafter, together with all prior amendments thereto are collectively referred to as the "Lease") with NESTLE TOLL HOUSE CAFt BY CENTRAL PA COOKIE COMPANY, LLC ('Tenant") for certain prerrises in the Capital City Mall Shopping Center, 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 purs.ant 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, subject to Section 16 of this Guarantee, 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 a` 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 fur 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 party liable for the Liabilities, or any portion or provision thereof; to grant extensions of time and other indulgence of any kind to Tenant; to compromise, release, substitute, exercise, enforce or fail or refuse to exercise or enforce any claims, rights, or remedies of any kind which Landlord may have at any time,, against Tenant or any other party liable for the Liabilities, or any thereof, or with respect to any security of any kind held by Landlord at any time under any agreement or otherwise. Nor shall the Liabilities of the undersigned be affected, impaired or discharged, in whole or in part, by reason of any action whatsoever taken by Landlord including, without limitation, sale, lease, disposition, liquidation or other realization (which may be negligent, willful or otherwise with respect to any security in which Landlord may at anytime have any interest or against any other party liable for all or any part of the Liabilities). 4. This Guarantee shall be a continuing guarantee and the liability of Guarantor hereunder shall in no way be affected, modified, diminished, impaired or terminated by reason of any of the following, whether or not notice thereof is given to Guarantor: (i) any subletting of all or any portion of the Premises or any assignment or other transfer of Tenant's interest in the Lease, (ii) any consent, approval, waiver or other action, inaction or omission under or concerning the Lease, (iii) any modifications, renewals, extensions or amendments of the Lease, (iv) any dealings or transactions or matter or thing occurring between Landlord and Tenant, or any of them, (v) any bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or trusteeship affecting Tenant or its successors or assigns, (vi) the release or discharge of Tenant from the performance or observance of any of the terms, covenants or conditions contained in the Lease pursuant to the terms thereof, by operation of law, by reason of any of the events described in Paragraph (v) above, or otherwise, (vii) any change in relationship between Guarantor and Tenant, (viii) the default or failure of Guarantor to perform any of its obligations set forth in this Guarantee, (ix) any action which Landlord may take or fail to take against Tenant by reason of any waiver of, or failure to enforce, any of the rights or remedies reserved to Landlord in the Lease, or otherwise, (x) any failure or refusal of Landlord to re-let the Premises or any part or parts thereof in the event that Landlord shall obtain possession of the Premises after Tenant's insolvency or default, (xi) any failure to collect rent thereof under any such reletting, and (xii) any other circumstance or condition that may result in a discharge, limitation or reduction of liability of a surety or guarantor. 5. If Landlord shall be obligated by any bankruptcy, insolvency or other legal proceedings to repay to Guarantor or to Tenant, or to any trustee, receiver or other representative of either of them, any amounts previously paid by Guarantor pursuant to this Guarantee, this Guarantee shall be deemed reinstated to the extent of that repayment made by Landlord. Landlord shall not be required to litigate or otherwise dispute its obligation to make such repayments if, in good faith and on the advice of counsel, Landlord believes that such obligation exists. 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 NestleTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal . March 7, 20081 Collins/CD 44 Mar .19 06 09:09P Rober elliGatti 717-737- 947 ATTORNEY OF ANY COURT OF RECORD TO APPEARFOR 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 ATTOWZY'S FEES OF 5%. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF. BUT ,6UDGMENT 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 LlabYltke to arrears, Landlord shall first cause to be flied 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 itch Guarantee (and of the tnrth of the copy such affidavit shall be sufficient evidence) be fired In such action. It shall not be necessary to file the original as a warrant of attorney, any rule of Court custom or practice to the ovraary notes thstandinC. .,A .r (INITIAL). GUARAN11 R WAIVER. GUARANTOR SPECIFICALLY ACKNOWLEDGES THAT GUARANTOR HAS VOLUNTARILY, KNOWNNGI.Y 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 shalt employ counsel to enforce Guarantors obligations under this Guarantee or any part thereof, Guarantor agrees to pay on demand all of Landlord's costs in connection therewith, whether suit be brought or not, Including, without limitation, reasonable attorntr+'a fees and disbursements. 8. The undersigned and each of them agree and consent to the exclusive jurisdiction as set forth in the Lease In any and all actions and proceedings whether arising hereunder or under any other agreement or undertaking. The undersigned waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding brought In any such court, any claim that Guarantor Is not subject personally to the jurisdiction of such courts, that Guarantor's property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding Is Improper or that this Guarantee or the subject matter hereof may not 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 arty 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 Guarantors address as provided in Section 15 below or in any other manner permitted by taw. Guarantor agrees that service in the foregoing manner shall be deemed, in every respect, effective service of prooess 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 mall is made for the express benefit of Tenant. 10. The waiver of any right by Landlord or felure to exercise promptly any right shell not be construed as the waiver of any other right to exercise the same at any time thereafter. AN rights and remedies of Landlord are cumulative and not alternative. If any part bored is determined to be illegal or unenforceable, such part shall be deemed stricken (or reformed as necessary to allmkhete 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 Jtatlon then the undersigned shall be deemed to be a tenant under the Lease with the same force and esffset as If the undersigned had QXeouted the Lease as Tenant or were named as a joint tenant therein and wereldrdly alai severally Is"s with Tenant thersuruler. This Guarantee shall be a continuing guarantee and seaadty agreement and aW oontinue and remain In full force and effect until all of the Liabilities have been completely and ssdrfaetorl? performed or otherwise discharged by Tenant; the undersigned shall not in any way be released of its obligation to Landlord under this Guarantee to long as any claim of Landlord against' Tenant is not satisfied, settled or discharged in frill. This Guarantee shall survive the expiration of the term of the Lease. 11, Guarantor represents and warranrta to Landlord that (A) Guarantor has full power, authcrlty and legal right to cause this Guarantee to be signed and delivered, and to perform and observe the provisions of this Guarantee, Including without Ilmitalkn% the payment of all moneys hereunder. (B) This Guarantee constitutes tha:legal, valid and binding obligation of Guarantor, and is enforceable In accordance with Its terms, except as such enfetr eabllity may be limited by. reason of (1) any applicable bankruptcy, Insolvency, reorganization, moratorium or simlar;aws, ordinances, rules or regulations affecting the enforcement of creditors' Abhts generally, or (ii) general principles df equity. NeedeToUHouseCafs-CapltaiCity-Kiosk-Fine[FinalFbWFinsl March 7, 2008 \ ColinwCD 45 P.l t A " (C) (i) Guarantor, of the date hereof, is not in violation ny 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 Lease 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 lirrit 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 purposL- if sent by recognized overnight courier, prepaid, addressed as follows: If to Guarantor, to it at: Robert Delligatti and Sarah Delligatti, husband and wife, jointly and severally 230 Hummel Avenue Lemoyne, PA 17043 If to Landlord, to it at: PREIT SERVICES, LLC The Bellevue, Third Floor 200 South Broad Street Philadelphia, PA 19102 Attention: General Counsel All Notices shall be deemed given or served on the date on which such Notice has been received. Any party to this Guarantee may change the address to which Notices shall be delivered to it and its representatives by notice in accordance with this Section 15. 16. Notwithstanding anything to the contrast/ contained in this Guarantee, Landlord agrees that the maximum liability of Guarantor shall be limited to the amount vF Rent (e.g., Minimum Rent plus all Additional Rent) payable by Tenant for the twenty four (24) month period commencing upon an Event of Default which gives rise to a claim under this Guarantee. NestieTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinal March 7, 20081 Collins/CD 46 [SIGNATURES ON FOLLOWING PAGE] IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be executed as of the day and year first above written. TENANT: ROBERT DELLIGATTI and SARAH DELLIGATTI, husband and wife, jointly and severally ROBERT DELLIGATTI SSN: 5?6-31- 4?c S*A4kE L LIGA SSN: cuss--i?-`?+?`t NestleTollHouseCafe-CapitalCity-Kiosk-FinalFinalFinalFinai March 7, 20081 Collins/CD 47 k1 717 737 0607 10-08 12 a.m. 06-03-2009 213 STATEMENT Make Check PR CAPITAL CITY LIMITED PARTNERSHIP Payable To: PO BOX 92406 CLEVELAND OH 44193 To: Neste Toll House Cafe by Central PA Cookie Company, LLC 230 Hummel Avenue Lemoyne PA 17043 FOR INQUIRIES CALL: Justo Vega TEL: 717-737-8275 or FAX: 717-737.0607 Date - Account - Statement No - Page - From,. CAPITAL CITY MALL 3506 CAPITAL CITY MALL DR CAMP HILL PA 17011-7003 Tenant: Nestle Toll House Cate Amount Remitted: Remit top portion with payment. 6/Tl2oo9 35094 359274 1 CHARGE DETAIL Capital City Mail Nestle Toll House Cafe Lease 00027126 Invoice Date Bill Code Description Charges Payments Balance Check Number 11112003 Balance Forward .00 10/2/2008 RENT MINIMUM RENT 2,916.67 2,916.67 1012/2008 RENT MINIMUM RENT 2,916.67 2,916.67 1 012120 0 8 RENT MINIMUM RENT 2,916.67 2,916.67 10(2!2068 RENT MINIMUM RENT 2,916.67 2,916.67 10/2/2008 RENT MINIMUM RENT 2,916.67 2,916.67 1012/2008 RENT MINIMUM RENT 2,916.67 2,916.67 1002008 RENT MINIMUM RENT 388.89 388.89 101212008 MXFD Marketing Fund 49.00 49.00 10/2/2008 MKFD Marketing Fund 49.00 49.00 10/2/2008 MKFD Marketing Fund 49.00 49.00 10/212008 MKFD Marketing Fund 49.00 49.00 1002008 MKFD Marketing Fund 49.00 49.00 101?l2008 MKFO Marketing Fund 49.00 49.00 10/212008 MKFD Marketing Fund 6.53 6.53 10/212008 RE REAL ESTATE TAXES 29.24 29.24 1012/2008 RE REAL ESTATE TAXES 29.24 29.24 10!712008 RE REAL ESTATE TAXES 29.24 29.24 1002008 RE REAL ESTATE TAXES 29.24 29.24 1012/2008 RE REAL ESTATE TAXES 29.24 29.24 10/2/2008 RE REAL ESTATE TAXES 29.24 2924 1012J2008 RE REAL ESTATE TAXES 3.90 3.90 101212006 CAM CAM ESCROW 150.27 150.27 10/212008 CAM CAM ESCROW 150.27 15027 1012!2008 CAM CAM ESCROW 150.27 150.27 101212008 CAM CAM ESCROW 150.27 150.27 1002008 CAM CAM ESCROW 150.27 150.27 1 0/212 0 0 8 CAM CAM ESCROW 150.27 15027 1012/2008 CAM CAM ESCROW 20.04 20.04 11/112008 MKFD Marketing Fund 49.00 49.00 11112008 RE REAL ESTATE TAXES 29.24 29.24 11/1/2008 CAM CAM ESCROW 150.27 150.27 11/112008 RENT MINIMUM RENT 2,916.67 2,916.67 1211/2008 RENT MINIMUM RENT 2,916.67 2,916.67 121112008 MKFD Marketing Fund 49.00 49.00 12/112008 RE REAL ESTATE TAXES 29.24 29.24 12/1/2008 CAM CAM ESCROW 150.27 150.27 717 737 0607 1008:25 a.m. 06-03-2009 3 /3 STATEMENT PAYMENTS SECTION CHARGE DETAIL Capital City Mall Nestle Toll House Cafe Invoice Date Bill Code Description 1/1/2D09 CAM CAM ESCROW 11112009 MKFD Marketing Fund 1/1/2009 RE REAL ESTATE TAXES 1/1/2009 RENT MINIMUM RENT 2/1/2009 RE REAL ESTATE TAXES 2/12009 CAM CAM ESCROW 211/2009 MKFD Marketing Fund 2/1120139 RENT MINIMUM RENT 211312009 XRE 2008 RET Reconciliation 311/2009 RE REAL ESTATE TAXES 3/1/2009 CAM CAM ESCROW 31112009 MKFD Marketing Fund 31112009 RENT MINIMUM RENT 4/112009 RE REAL ESTATE TAXES 4112009 CAM CAM ESCROW 4/1/2009 MKFD Marketing Fund 4112009 RENT MINIMUM RENT 5/112009 RENT MINIMUM RENT 5/1/2009 RE REAL ESTATE TAXES 5/112009 CAM CAM ESCROW 5112009 MKFD Marketing Fund 611/2009 RENT MINIMUM RENT 6/112009 RE REAL ESTATE TAXES 6/1120D9 CAM CAM ESCROW 6/112009 MKFD Marketing Fund G11. Uate Description Payments Check Number Remark Balance ACCOUNTSUMMARY ACCOUNT AGING Current Charges Payments 150.27 51.45 29.24 2,916.67 29.24 150.27 51.45 2,916.67 26.80 29.24 150.27 51.45 2,916.67 29.24 150.27 51.45 2,916.57 2,916.67 29.24 150.27 51.45 2,916.67 29.24 15027 51.45 Date- 6!2/2009 Account- 35094 Statement No - 359274 Page- 2 Lease 00027126 Balance Check Number 150.27 51.45 29.24 2,916.67 29.24 150.27 51.45 2,918.67 26.80 29.24 150.27 51,45 2,916.57 29.24 150.27 51.45 2,916.67 2,916.67 29.24 150.27 51.45 2,916.67 29.24 15027 51.45 Balance Prior To 1/1/2003 .00 Plus Charges From 1/1/2003 44,493.38 Less Payments 1 Credits From 1112003 .00 AMOUNT DUE: 44.49336 1-30 31-60 3,147.63 3,147.63 61 - 90 91 - 120 Over 120 3,147.63 3,174.43 31,676.06 ?l ?? COX ?'1 I ? ?? m x 07 CA) Nestle Toll House Cafe - Accelerated Rent Capital City Mall - Camp Hill, PA Years Months Minimum Rent RE Taxes/Month Total Monthly Rent Total Amount 7/1/09- 4/30/13 15-60 $2,916.67 $29.24 $2,945.91 $135,511.86 5/1/09- 4/30/18 61-120 $3,333.33 $29.24 $3,362.57 $201,754.20 TOTAL $337,266.06 {A0355739.1 } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, CIVIL DIVISION Plaintiff, V. CENTRAL PA COOKIE COMPANY, a Pennsylvania corporation, trading and doing business as NESTLE TOLL HOUSE CAFE, and ROBERT DELLIGATTI and SARAH DELLIGATTI, husband and wife, Defendants. No. CERTIFICATION OF ADDRESSES Moira Cain-Mannix, Esq., attorney for Plaintiff PR Capital City Limited Partnership, certifies that the present address of Plaintiff is 200 South Broad Street, The Bellevue, Third Floor, Philadelphia, Pennsylvania 19102, and that the last known address for Defendants Robert Delligatti and Sarah Delligatti, husband and wife, jointly and severally, and as the officers and owners of Central PA Cookie Company is 230 Hummel Avenue, Lemoyne, Pennsylvania 17043. Date: June 29, 2009?,Vil-???ititJ Moira Cain-Mannix MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership OF F1LE[iriCE ?/ tll ?r ??{{ t!'! ' ,IO AP 1 ;rE FT, t^ 2009 JUN 30 PH 1: 52 PID di`s ?'`i v wti #a?.so PQ AT-1 UaAltd I-. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. CENTRAL PA COOKIE COMPANY, a Pennsylvania corporation, trading and doing business as NESTLE TOLL HOUSE CAFE, and ROBERT DELLIGATTI and SARAH DELLIGATTI, husband and wife, Defendants. CIVIL DIVISION No. 2009-04387 VERIFICATION OF NON- MILITARY SERVICE 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 Moira Cain-Mannix PA ID No. 81131 MARCUS & SHAPIRA, LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 a Nestle Toll House Cafe VERIFICATION The undersigned does hereby verify subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, that judgment was entered against Robert Delligatti and Sarah Delligatti pursuant to the Complaint filed on June 30, 2009. Neither Robert Delligatti or Sarah Delligatti are active members of the Armed Forces of the United States or any other military or non-military service covered by the Servicemembers Civil Relief Act, as amended, December, 2003 ("SCRA"). The undersigned further states that if Robert Delligatti or Sarah Delligatti are engaged in military or non-military service, as defined within the SCRA, the undersigned is without receipt of or knowledge of an Application for Relief as required by the SCRA. The undersigned further states that the information is true and correct to the best of the undersigned's knowledge and belief and upon information received from others. Date: 4-30-007 Donald Smith, General Manager Capital City Mall CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Verification of Non-Military Service was served upon the Defendants listed below by United States mail, first class service, postage prepaid, this 'fkday of August, 2009: Robert Delligatti 230 Hummel Avenue Lemoyne, PA 17043 Sarah Delligatti 230 Hummel Avenue Lemoyne, PA 17043 Moira Cain-Mannix ` r\4_ 20`09 AUG -6 Pia 02 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plantiff, V. CENTRAL PA COOKIE COMPANY, a Pennsylvania corporation, trading and doing business as NESTLE TOLL HOUSE CAFE, and ROBERT DELLIGATTI and SARAH DELLIGATTI, husband and wife, Defendants. CIVIL DIVISION No. 2009-04387 DEFENDANTS' RESPONSE TO PLANTIFF'S NOTICE ADVISING OF PLANTIFF'S RIGHTS UNDER RULE 2958.1 The Defedants seek additional time to work with Plaintiff and their attorneys to settle this lawsuit by opening a Nestle Toll House Cafe franchise at the Capital City Mall in Camp Hill, PA. The Defendants request that the court allow additional time to work out the details of the store's opening and to avoid the sheriffs seizing capital and property to pay the judgment in the interim. The Defendants are confident that through continued discussion a mutually beneficial resolution can be reached; namely, the opening of the Nestle Tollhouse Cafd as proposed. Robert DelliGatti Defendant 230 Hummel Ave. Lemoyne, PA 17043 (717) 433-7799 Respectfully submitted, Sarah DelliGatti Defendant 230 Hummel Ave. Lemoyne, PA 17043 (717) 418-9410 2€304 SEP 25 All I I : 9 CL 4 , i 4. i _ ? t i ? w IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. CENTRAL PA COOKIE COMPANY, a Pennsylvania corporation, trading and doing business as NESTLE TOLL HOUSE CAFE, and ROBERT DELLIGATTI and SARAH DELLIGATTI, husband and wife, CIVIL DIVISION No. 2009-04387 Defendants. AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANTS' RIGHTS I, Moira Cain-Mannix, being duly sworn according to law, hereby certify that: I . Central PA Cookie Company, trading and doing business as Nestle Toll House Cafe, Robert Delligatti and Sarah Delligatti, Defendants in the within action, were served with Notices Under Rule 2958.1 of Judgment and Execution Thereon, Notice of Defendants' Rights by Federal Express, Overnight Delivery, on the 26th day of August, 2009. True and correct copies of the Notices are attached hereto as Exhibit A; and 2. Attached hereto as Exhibit B are copies of the proof of delivery issued by Federal Express, providing proof of service of the Notices Under Rule 2958.1 of Judgment and Execution Thereon, Notice of Defendant's Rights on August 26, 2009 Stephen ?SZubrow (Pa. I.D. 4 3523) Moira Cain-Mannix (Pa. ID No. 81131) Marcus & Shapira LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219-6401 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership Sworn to and subscribed before me this day of NoAaryf Public Bernadette Dwyer, Notary Public City Of Pittsburgh, Allegheny County My Commission Expires Apr. 26, 2010 Member, Pennsylvania Association of Notaries IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. CENTRAL PA COOKIE COMPANY, a Pennsylvania corporation, trading and doing business as NESTLE TOLL HOUSE CAFE, and ROBERT DELLIGATTI and SARAH DELLIGATTI, husband and wife, CIVIL ACTION - LAW No. 2009-04387 AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON, NOTICE OF DEFENDANT'S RIGHTS Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Defendants. Counsel of Record for this Party: Stephen S. Zubrow Pa. I.D. No. 43523 Moira Cain-Mannix Pa. I.D. No. 81131 MARCUS & SHAPIRA, LLP Firm No. 145 One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. CENTRAL PA COOKIE COMPANY, a Pennsylvania corporation, trading and doing business as NESTLE TOLL HOUSE CAFE, and ROBERT DELLIGATTI and SARAH DELLIGATTI, husband and wife, Defendants. CIVIL DIVISION No. 2009-04387 NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO: CENTRAL PA COOKIE COMPANY, t/a NESTLE TOLL HOUSE CAFE and ROBERT DELLIGATTI and SARAH DELLIGATTI,. A judgment in the amount of $400,874.91 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE- OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle PA 17013 (717) 249-3166 EXHIBIT August 25, 2009 Stephen S. Zu row Pa. I.D. No. 43523 Moira Cain-Mannix Pa. ID No. 81131 MARCUS & SHAPIRA, LLP One Oxford Centre, 35"' Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Attorneys for Plaintiff Wendy Short - FedEx Shipmery 796890913088 Delivered From: <TrackingUpdates@fedex.com> To: <short@marcus-shapira.com> Hate: 8/26/2009 8:58 AM Subject: FedEx Shipment 796890913088 Delivered This tracking update has been requested by: Company Name: Name: E-mail: Marcus & Shapira LLP Moira Cain-Mannix short@marcus-shapira.com Our records indicate that the following shipment has been delivered: Reference: Ship (P/U) date: Delivery date: Sign for by: Delivered to: Service type: Packaging type: Number of pieces: Weight: Special handling/Services: Tracking number: 32740-286 Aug 25, 2009 Aug 26, 2009 8:54 AM S.DELLIGATTI Residence FedEx Priority Overnight FedEx Envelope 1 0.50 lb. Residential Delivery Adult Signature Required Deliver Weekday 796890913088 Shipper Information Moira Cain-Mannix Marcus & Shapira LLP One Oxford Centre, 35th Floor; 301 Grant Street Pittsburgh PA US 15219 Recipient Information Attn: Robert and Sarah Delligatti Central PA Cookie Company 230 HUMMEL AVE LEMOYNE PA US 17043 Please do not respond to this message. This email was sent from an unattended mailbox. This report was generated at approximately 7:58 AM CDT on 08/26/2009. Learn more about new ways to track with FedEx. All weights are estimated. To track the latest status of your shipment, click on the tracking number above, or visit us at fedex.com. This tracking update has been sent to you by FedEx on the behalf of the Requestor noted above. FedEx does not validate the authenticity of the requestor and does not validate, guarantee or warrant the authenticity of the request, the requestor's message, or the accuracy of this tracking update. For tracking results and fedex.com's terms of use, go to fedex.com. E EXHIBIT FecEA - Expr August 26,2009 Dear Customer: FedEx Express Customer Support Trace 3875 Airways Boulevard Module H, 4th Floor Memphis, TN 38116 The following is the proof-of-delivery for tracking number 796890913088. U.S. Mail: PO Box 727 Memphis, TN 38194-4643 Telephone: 901-369-3600 Delivery Information: Status: Delivered Delivery location: LEMOYNE, PA Signed for by. S.DELLIGATTI Delivery data: Aug 26, 2009 08:54 Service type: Priority Envelope Shipping inforrnallon: Traddng number: 796890913088 Ship date: Aug 25, 2009 Weight: 0.5 lbs. Recipient: Shipper LEMOYNE, PA US Pittsburgh, PA US Reference 32740-286 Thank you for choosing FedEx Express. FedEx Worldwide Customer Service 1.800.GoFedEx 1.800.463.3339 Wendy Short - FedEx Shipmen'- 796890924990 Delivered From: <TrackingUpdates@fedex.com> To: <short@marcus-shapira.com> Date: 8/26/2009 8:58 AM Subject: FedEx Shipment 796890924990 Delivered This tracking update has been requested by: Company Name: Name: E-mail: Marcus & Shapira LLP Moira Cain-Mannix short@marcus-shapira.com Our records indicate that the following shipment has been delivered: Reference: Ship (P/U) date: Delivery date: Sign for by: Delivered to: Service type: Packaging type: Number of pieces: Weight: Special handling/Services: Tracking number: 32740-286 Aug 25, 2009 Aug 26, 2009 8:54 AM S.DELLIGATTI Residence FedEx Priority Overnight FedEx Envelope 1 0.50 lb. Residential Delivery Adult Signature Required Deliver Weekday 796890924990 Shipper Information Moira Cain-Mannix Marcus & Shapira LLP One oxford Centre, 35th Floor; 301 Grant Street Pittsburgh PA US 15219 Recipient Information Mr. Robert Delligatti 230 HUMMEL AVE LEMOYNE PA US 17043 Please do not respond to this message. This email was sent from an unattended mailbox. This report was generated at approximately 7:57 AM CDT on 08/26/2009. Learn more about new ways to track with FedEx. All weights are estimated. To track the latest status of your shipment, click on the tracking number above, or visit us at fedex.com. This tracking update has been sent to you by FedEx on the behalf of the Requestor noted above. FedEx does not validate the authenticity of the requestor and does not validate, guarantee or warrant the authenticity of the request, the requestor's message, or the accuracy of this tracking update. For tracking results and fedex.com's terms of use, go to fedex.com. 3 ' E FedEx Express U.S. Mail: PO Box 727 Customer Support Trace Memphis, TN 38194-4643 3875 Airways Boulevard Express Module H, 4th Floor Telephone: 901-369-3600 Memphis, TN 38116 August 26,2009 Dear Customer: The following is the proof-of-delivery for tracking number 796890924990. Delivery Infonnftn: Status: Signed for by. Service type: Delivered S.DELLIGATTI Priority Envelope Delivery location: LEMOYNE, PA Delivery dabs: Aug 26, 2009 08:54 Shipping Information: Traddng number: 796890924990 Ship date: Aug 25, 2009 Weight: 0.5 lbs. Recipient ShIpper: LEMOYNE, PA US Pittsburgh, PA US Reference 32740-286 Thank you for choosing FedEx Express. FedEx Worldwide Customer Service 1.800.GoFedEx 1.800.463.3339 Wendy Short - FedEx Shipmen4- 797878379698 Delivered i From: <TrackingUpdates@fedex.com> To: <short@marcus-shapira.com> Date: 8/26/2009 8:59 AM Subject: FedEx Shipment 797878379698 Delivered This tracking update has been requested by: Company Name: Name: E-mail: Marcus & Shapira LLP Moira Cain-Mannix short@marcus-shapira.com Our records indicate that the following shipment has been delivered: Reference: Ship (P/U) date: Delivery date: Sign for by: Delivered to: Service type: Packaging type: Number of pieces: Weight: Special handling/Services Tracking number: 32740-286 Aug 25, 2009 Aug 26, 2009 8:54 AM S.DELLIGATTI Residence FedEx Priority Overnight FedEx Envelope 1 0.50 lb. Residential Delivery Adult Signature Required Deliver Weekday 797878379698 Shipper Information Moira Cain-Mannix Marcus & Shapira LLP One Oxford Centre, 35th Floor; 301 Grant Street Pittsburgh PA US 15219 Recipient Information Ms. Sarah Delligatti 230 HUMMEL AVE LEMOYNE PA US 17043 Please do not respond to this message. This email was sent from an unattended mailbox. This report was generated at approximately 7:57 AM CDT on 08/26/2009. Learn more about new ways to track with FedEx. All weights are estimated. To track the latest status of your shipment, click on the tracking number above, or visit us at fedex.com. This tracking update has been sent to you by FedEx on the behalf of the Requestor noted above. FedEx does not validate the authenticity of the requestor and does not validate, guarantee or warrant the authenticity of the request, the requestor's message, or the accuracy of this tracking update. For tracking results and fedex.com's terms of use, go to fedex.com. ? C" PI MR FedEx Express U.S. Mail: PO Box 727 Customer Support Trace Memphis, TN 38194-4643 3875 Airways Boulevard E?tprim Module H, 4th Floor Telephone: 901-369-3600 Memphis, TN 38116 August 26,2009 Dear Customer: The following is the proof-of-delivery for tracking number 797878379698. Delivery Infnrtna*m: Status: Sighed for by. Service type: Delivered S.DELLIGATTI Priority Envelope Delvery location: LEMOYNE, PA Delivery date: Aug 26, 2009 08:54 Shipping InforrnaWn: Traddng number. 797878379698 Ship date: Aug 25, 2009 Weight: 0.5 lbs. Redpient: Shipper: LEMOYNE, PA US Pittsburgh, PA US Reference 32740-286 Thank you for choosing FedEx Express. FedEx Worldwide Customer Service 1.800.GoFedEx 1.800.463.3339 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Affidavit of Service of Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of Defendants' Rights was served upon the following by United States mail, first class service, postage prepaid, thihy" day of October, 2009: Central PA Cookie Company 230 Hummel Avenue Lemoyne, PA 17043 Mr. Robert Delligatti 230 Hummel Avenue Lemoyne, PA 17043 Ms. Sarah Delligatti 230 Hummel Avenue Lemoyne, PA 17043 Moira Cain-Mannix OF THE RROTHONOTARY 2009 OCT -8 PAR 2: 41 CL1Pv