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10-1902
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, CIVIL DIVISION No. !a - JQD:, (2-w I I ( erw4 V. JAS COMMUNICATIONS, LLC Defendant. c a `? a TJ ..fir„ r? T•? CONFESSION OF JUDGMENT FOR MONEY Pursuant to the authority contained in the Warrants of Attorney, the original or a copy oflc which are attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of Plaintiff and against Defendant for money as follows: Amount due through 2/17/10 (Ex. 2) Amount due from 2/17/10 through end of term (6/30/11) ($5,017.20 x 16) Attorneys' fees for enforcement and collection (5%) provided under § 16.02 of the Lease Filing Fee TOTAL Dated: Marche, 2010 $ 21,241.14 $ 80,275.20 $ 5,075.81 ra? $ to?,5'9a.15 Attorney for Defendant -*&q.50 Pa Am UY -1048 eaM 049 ?bhee, I?.ic?? pits! city Mehl IAS Commu MCS[iYMtS, LLC: UNSW4R V VE IC I'Y't lY UNDER I&TA.. C.S. 8 4904 The undersigned hereby states subject to the penalties of 18 Pa. C.S. § 49014 regarding unsworn falsification to authorities as follows. I am a duly authorized representative of the P`Wntiff identified in the attached Complaint in Confession of Judgment mid that, averments of fact contained in such Complaint are true and correct to the best of"my 'knowledge, information and belief. Dated, OIA -t I, 12 , 20"- By; Donald Smith Mall Manager capital city l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. JAS COMMUNICATIONS, LLC, Defendant. CIVIL DIVISION No. 10 - a-tv t l ler l" COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow Pa. I.D. No. 43523 Moira Cain-Mannix PA ID No. 81131 MARCUS & SHAPIRA LLP One Oxford Centre, 35t` Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED ) CIVIL DIVISION PARTNERSHIP, ) Plaintiff, No. V. JAS COMMUNICATIONS, LLC, Defendant. COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY 1. 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 JAS Communications, LLC ("JAS") is a Pennsylvania limited liability company. Tenant's last known address for service and notice is 132 Strawberry Square, Harrisburg, PA 17101. 3. Tenant trades under the name of The Mobile Pros. 4. 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 June 19, 2008, (the "Lease"). Defendant JAS 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. 5. 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 of if such failure continues for ten (10) days after written notice thereof by Landlord to Tenant." 6. As of February 17, 2010, Tenant failed to pay as due rent, utilities, taxes and other charges due under the Lease in the amount of $21,241.14. 7. Plaintiff gave written notice of the failure to pay on, among other dates, February 25, 2010 and more than ten (10) days have passed after Tenant was sent notice of its failure to pay without making the missing payments. 8. 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 November of 2009 forward. 9. Due to Defendant's default, Plaintiff is entitled to accelerate rent and all other sums payable under the Lease through the entire balance of the term of the Lease (Ex. 1, § 16.02 (a)(i)). 10. This Lease has not been assigned. 11. Plaintiff avers that judgment on the Lease is not being entered by confession against a natural person in connection with a consumer credit transaction. The underlying Lease 2 of real property at Capital City Mall, Camp Hill, Pennsylvania, was made as a commercial transaction. 12. Judgment has not been entered on the Lease in this or any other jurisdiction. 13. The itemization of the amount presently due under the Lease and without waiver of future damages is as follows: Amount due through 2/17/10 (Ex. 2) Amount due from 2/17/10 through end of term (6/30/11) ($5,017.20 x 16) Attorneys' fees for enforcement and collection (5%) provided under § 16.02 of the Lease Filing Fee TOTAL $ 21,241.14 $ 80,275.20 $ 5,075.81 $ ioc?, s9a . l5 WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the Lease, demands a money judgment against Defendant in the total sum of $106,619.65, plus any additional costs and interest from and after the date of the Entry of Judgment as provided in the Lease and as authorized by law, and brings said Lease to Court to recover said sum. Dated: Marc 2010 Respectfully submitted, 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 3 ?xA`,b,`I 1 LFbAlA 4.0 LEASE AGREEMENT BY AND BETWEEN PR CAPITAL CITY LIMITED PARTNERSHIP, as Landldrd i and JAC COMMUNICATIONS, LLC, as Tenant TRADE NAME: MOBILE PROS MobilePros-CapitaiCity-Kiosk-Final.doc May 21, 2008 1 AirWJTF TABLE OF CONTENTS ARTICLE 1: FUNDAMENTAL LEASE PROVISIONS AND DEFINITIONS . Section 1.01 ................... .... Fundamental Lease Provisions ........ . Section 1.02 ............................................. Definitions. ..3 ....... Section 1.03 ..........................................................................................................................4 Exhibits............ ..... ... ......................................................... ARTICLE 2: PREMISES, TENANT'S WORK, AND RELOCATION ........*......' ....................'....""•.'"'•""""""'••5 , Section 2.01 Premises ................. ........................ ........ ................................................... Section 2.02 Delivery of Premises ....................................................................... ............................................ 5 Section 2.03 Tenant's Work and Tenant's Plans .............................. 5 Section 2.04 Mechanic's and Construction Liens. Section 2.05 .. Opening of Premises; Failure to Open/Operate ............................... ........... 7 Section 2.06 . Relocation of Premises ............... ...................................................7 . ARTICLE 3: TERM ......................... ...................................................................;................................................... 7 Section 3.01 ....................................................... ............... .........................................:....... 8 Length of Term .. Section 3.02 .... ...................................................... .................................................8 Delivery upon Term Expiration Section 3.03 . Effect of Holdin Over. . ..................................................... ................................................. 8 .............. . . ................................................ ' ................................................. 8 ARTICLE 4: RENT ...........................9 Section 4.01 .............. ................................... ............... 9 Tenant's Agreement To Pay Rent..... ...... Section 4.02 ....................... 9 Minimum Rent.............. Section 4.03 Percentage Rent .............................................................................. .................................................9 .......... Section 4.04 ................................................... .................................................9 Gross Sales . Section 4.05 ................... Reporting of Gross Sales; Year End Adjustment . ... ............................. ..........,................................9 Section 4.06 Tenant's ........................... ................................................. 10 Records and Audit Section 4.07 ........................................................... ............................................. ...10 Additional Rent ........ . Section 4.08 .. ......... Late/insufficient Funds Charge ............................................,............................................................11 Section 4.09 Where Rent Payable and to Whom; No Deductio ........ .. ............".......'............"'"""••..11 Section 4.10 ns.......... ............................ Security Deposit ................ . .. ..... ................................ 11 ARTICLE 5: REAL ESTATE TAXES AND ASSESSMENTS ............................ ... Section 5.01 ..................................... ............................. 11 Taxes Section 5.02 ................................................... Tenant's Tax Charge .....................................................................................:.........................11 Section 5.03 Tenant's Additional Tax Obligations ................................................................................................11 ............... ............................ ................................................12 ARTICLE 6: UTILITIES .................. Section 6.01 .......... .............................................................:................................................ Services . Section 6.02 ............................... .............................................................................................................. .12 Service Charges ............ ....... .......................................................,................................................. 13 ARTICLE 7: USE OF-PREMISES ... . Section 7.01 . ....................................................... ..........................................................................13 Sole Use and Trade Name Section 7.02 . ................... ......................................................................................13 Hours Section 7.03 .............. . ......................................................'........................ ......................13 Operational Requirements Section 7.04 ....... ................................................ ? ................................................14 Employee Parkin Ar : Section 7.05 g eas ............... .................................................................... • ....15 Signs and Advertising......... ...... """' "' """"""' " Section 7.06 ... ............................................. ................................................15 Radius Restriction ................ Section 7.07 ..... Compliance with Laws; Hazardous Substances ................. ...............16 Section 8.01 Landlord's Control and Maintenance of Common Areas """"""' •"". .' •' • • • • • • • 16 Section 8.02 .............; .................................................16 Changes by Landlord Section 8.03 . . . . . . . . ........................................................................................ ............. ...... 1 Rules and Regulations... Section 8.04 .......... . .. .17 Tenant's Rights and Obligations. ............. . . . . . . . . Section 8.05 17 Operating Costs ............................... Section 8.06 ......................... •••••..17 Tenant's Share of Operating Costs ..........""" ....... . . ARTICLE 9: MAINTENANCE AND REPAIR; ALTERATIONS ....... ............. ................................................18 . Section 9.01 Structural Repairs by Landlord.. ............... ............!..................................................19 Section 9.02 Repair and Maintenance by Tenant ........ Section 9.03 ....... 19 Landlord's Right to Access the Premises Section 9.04 .................... ...... 20 No Rent Abatement or Damages ............. ................................ ..................................... 20 ARTICLE 10: PROMOTION OF THE SHOPPING CENTER Section 10.01 ..... . ..................:. 20 Marketing Service.. ... Section 10.02 . .........................................:............:................................................20 e . Marketing Service Char Section 10.03 g Dissolution of Merch t ' A ........................................... ................................................20 ARTICLE 11: INS an s ssociation URANCE, INDEMNITY, WAIVER OF SUBROGATION ... Section 11.01 .."""'.'....••••••••••••••••••••••••••••••••••••21 Tenant's Insurance Section 11.02 . Landlord's Insurance .......................................................................J ..................................................21 Section 11.03 .......................... ......................'.........................22 Effect on Landlord's Insurance . Section 11.04 . Indemnification and Waiver of Cl i Section 11.05 a m ................................ Mutual Waivers.......... 22 ARTICLE 12: DAMAGE OR DESTRUCTION ................................................................................ ..............................23 Section 12.01 Landlord's Duty to Reconstruct the P ................................... ........ ................................................ 23 remises Section 12.02 ............................. .................................................. 23 Tenant's Duty to Reconstruct the Premises ection 12.03 .................... ? ........................................ .......................23 Option to Terminate.:' Section 12.04 .................. ............... ................................23 Abatement of Rent... .................... .................................................. 24 iARTICLE 13: CONDEMNATION........... Section 13.01 ....................................... .............................""".••'•'•••""""""'•••.•••••••.24 Total Condemnation of the Premises Section 13.02 . .........................................i.................................................. 24 Partial Condemnation of the Premises Section 13.03 . Condemnation of the Shoppin ....................................... ............................•...................24 Cent Section 13.04 g er ................................................ 24 Damages i•• ............. ................ ..... .................... ..................... ARTICLE 14: FIXTURES 24 .................................................. AND PERSONAL PROPERTY Section 14.01 . Improvements to Premises; Removal ........ ................................................24 Section 14.02 ARTICLE 15: ASS . Tenant's Personal Property; Removal ...................... ......... ................................................24 ... IGN ...........................................24 MENT AND SUBLETTING ................. ........................................ ...... .. 25 MobilePms-CapitalCity-Kiosk-Final d . oc May 21, 2008 1 AirsViTF 1 i Section 15.01 Assignmend Subl tti Section 15.02 e ng Assignment to Parent Subsidi 25 .......... 77 ....... ...................................... ary Affi ARTICLE 16: EVENTS. OF DEFAULT AND BANKRUPTCY liated C .poratio of Tenant. ......... 5 Section 16.01 . Events of Default ... ............... ........... ...............................................2 Section 16.02 ............ ............... Landlord's Remedies ....... ........................................ 26 Section 16.03 ....... ............... Damages ........... . ...........................................................................................26 Section 16.04 . ................. Landlord's Self-Help ........ .................... .. ..........................................................................................28 Section 16.05 ..................... Landlord's Default ...... .......................................................................................... 28 Section 16.06 ...... ...................... Legal Expenses ..... ....................................... ..............................................29 Section 16.07 ............ Landlord's Right to Assume Lease and Pure "•""'•••••.•.29 Section 16.08 Shopping Center Lease. . Section 16.09 ........................ Rejection of the Lease .. .............................,.......... 29 ARTICLE 17: SU .. BORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE ................. Section 17.01 Subordination of Lease. ....... .............. 30 Section 17.02 . .......................... Tenant's Attornment ... ......................................................................................... 30 Section 17.03 .... Instruments to Carry Out ......................... Intent .......................................: ............................................... 30 Section 17.04 .............. Estoppel Certificate.... ............................ ,........... ................................................. 30 Section 17.05 ..... Landlord's Rights of Alienation ....... . 30 . ARTICLE 18: MISCELLANEOUS ............. ................................................................................... . 30 Section 18.01 ................... ............ Interpretation ..... ....................................... ................................................ 31 Section 18.02 ..... ....................... Quist Enjoyment ..... . ............ .:.................... ................................................31 Section 18.03 ........... Notices............ ......................... ......................................... 31 Section 18.04 ... ............... Real Estate Investment Trust .........................................................................................31 Section 18.05 . Reciprocal Easement Agreement . ...... 31 Section 18.06 . ........... Relationship of Parties.. ...................... .......... ................................................ 31 Section 18.07 .... Successors... ........................ ............................,......................................................... 31 Section 18.08 Survival of Obligations .............................. . ..................................... ....................................... ........: 31 Section 18.09 ..................... Broker's Commission .. .......................................6 .................................................32 Section 18.10 ......... Invalidity Severabllity ...... ..................... ....... .........................................................................................32 Section 18.11 .................. Time of the Essence . ........................:....,....... 32 Section 18.12 ........ Applicable Law...... ...... 32 Section 18.13 ............................... Waiver........... ............................. . ........ 32 Section 18.14 ...................... Accord and Satisfaction. . .................................................................................... 32 Section 18.15 . . ..... ...................... Corporate Tenants..... .................................... 32 Section 18.16 ...... Recording. ........................... ...................................... ............................................ 32 Section 18.17 Agent of Landlord; Servic.............. ....... a Providers ................................... ............... 32 Section 18.18 ...... Finalization of Charges.. ..... ..................................... ................................... 33 Section 18.19 ..................... Financial Information . . .......................................................................................33 Section 18.20 ... . ........................... Tenant's Guarantor ..... ......................................................................................... 33 Section 18.21 S ... .................................................. ............... Notice to Mortgagee; Performance of Landlord's Obligations ection 18.22 Unavoidable Delays. ................ . . ...,.. ..................................... ........... 33 Section 18.23 . ................. Prior Lease . ............ ................................. . . .. 33 Section 18.24 .. Anti-Terrorism Law ...................................... ................................ ......................................................34 Section 18.25 Waiver of Jury Trial ..................................... .... ............................,..........................................................34 Section 18.26 .......................... Confidentiality......,.... .......... ....................................................................................... 34. Section 18.27 ....................... Entire Agreement ........ ................................... ............... 34 Section 18.28 ........... Submission of Lease to Tenant ...............35 Section 18.29 . ................ Acknowledgement........ ................................... ................................................35 .... EXHIBIT A: PLAN OF THE SHOPPING CENTER ...................... ................................... ... 35 EXHIBIT B: UTILITIES ......... ................................................... ,.............................................. EXHIBIT C: HEATING ............................ ...••""'•••••.'•'.••••••••••• VENTILATING AND 36 , , AIR-CONDITIONI EXHIBIT D: GUARANTEE OF LEASE ...................... ................ NG . .............................................................................. 38 ......... MobilOPros-CapkalCiry-Kiosk-Final.doc May 21, 2008 \ AirsVjTF 2 THIS LEASE AGREEMEVF("Lease") Is made this day of PR CAPITAL CITY LIMITED PARTNERSHIP, a Pennsylvania errtiisdespis artni'rship , 2008, by and between I-andord") ad JAS COMMUNICATIONS, LLC, a Pennsylvania corporation ('Tenant"). The located d in Ca arti Hill, Pennsylvania ("Shopping Center"). pitallCi y Mall in Camp 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) (e) Premis : Unit No. K006, a kiosk containing approximately 120 square feet of floor area. Rent Term and Expiration Date: 36 months, expiring on June 30, 2011. Minimum Rent: Time Period Annual Amount Rent Commencement Date through the end of the Term $60,000.00 Percentage Rent: Time Period Annual Break Point Rent Commencement Date through the end of the Term $750,000.00 Rent Common 4111iO •t Date; July 1, 2008 (the "Required Opening Date"). MonthIV Amount $5,000400 Percerltaae Rate Eight percent (8%) (f) Marketing Smice 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 $1.68 per square foot of GLA of the Premises. The dollar amount set forth herein is an initial amount only for the first Accounting Period. i (g) HVAC Charge: N/A HVAC Eauigment ontribution ate: N/A Sprinkler hams: N/A (h) Taxes: For each "Tax Year" (as defined in Section 5.01), Tenant shah pay td 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 $1.72 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 $7.60 per square foot of GLA of the Premises. Security Cosh: For each "Accounting Period" (as defined in Section 1.02)+ Tenant shall pay to Landlord on account of Tenant's share of any "Security Costs" an amount subject to adjustments as set forth in the Lease. Landlord estimates Tenant's share of Security Costs for the first Accounting Period to be $$0.71 per square foot of GLA of the Premises. G) Tenant's Securlty Deposit: N/A (k) Trade Name: Mobile Pros (1) Permitted Use: Only for the retail sale of cellular phones, service and accessories, including T-Mobile service and for no other use or purpose whatsoever. (m) Plan Submittal Date: April 15, 2008 (n) Construction Cormrnen ment ate: June 1, 2008 (o) Tenant Con n??±tl^n iin?aP. N/A (P) Radius: 5 miles (q) Gua__ntor: N/A MobilePros-CapitalCity-Kiosk-Final.doc May 21, 2008 1 Airst/JTF 3 Landlord: (s) (t) PR Capital City Limited Partnership Go PREIT Services, LLC 200 South Broad Street The Bellevue, Third Floor Philadelphia, PA 19102 Attn: Director, Legal Tenant: Joe Hathiramani JAS Communications, LLC 132 Strawberry Square Harrisburg, PA 17101 Tenant's Billing Address: Copy to: PR Capital City Limited Partnership Management Office 3506 Capital City Mall Drive Camp Hill, PA 17011 Attn: General Manager Copy to: Joe Hathiramani JAS Communications, LLC 132 Strawberry Square Harrisburg, PA 17101 Landd 's Rent Payment address: PR Capital City Associates LP P.O. Box 92406 Cleveland, OH 44193 Section 1.02 D n n . "Accounting Period" means the period consisting 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, Accounting Period shall be a January 1 through December 31 calendar year period. Thip 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 pr errant, at and or in the connection with the Shopping Center from time to time for the non-exclusive common use of Landlord, Tenant, 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, road*ays, 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, beam, 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 exiles, corridors, and malls. "Excluded Areas" means portions of the Shopping Center designated as a department store or major tenant or by a trade name on Exhibit "A" attached hereto or used for or for use in connection *Ith 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 mail 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 an specifically, or other food service operations situated in the Shopping Center, ud ng thei iind v dual premises and an small 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. "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 measured from the exterior face of exterior walls and the exterior face of service corridor walls, the line along the front of ithe Premises where the Premises abuts the enclosed mall (which is commonly known as the "Lease Line") and the center line of any wall Tenant shares with other tenants or occupants. With respect to all leasable areas other than Tenant's Premises, the measurement of 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. "Lease" means the Fundamental Lease Provisions, the Lease Agreement, and tihe Exhibits attached hereto. MobilePros-CapitalCity-Kiosk-Fi I na .doc May 21, 2008 1 Airst/JTF 4 "Lease Year, means the twelve (12) full calendar months of the `Term with January immediately following the Rent Commencement Date and ending December 318t uchc'calendar tyear and each succeeding twelve (12) month period; provided, however, that the first Lease Yeah 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). Rente 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" 2lttached 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 or that Landlord owns all of the land ;and improvements as shown on Exhibit A. 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 change in the shape, size, location, number, height, or extent of the improvements to the Sho m 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. "Taxes" has the meaning set 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 Exhlbfts. 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 B Utility Consumption and Payment Exhibit. Exhibit C Tenant Heating, Ventilating and Air Conditioning Exhibit. Exhibit D Deleted. ARTICLE 2: PREMISES, TENANT'S WORK, AND RELOCATION Section 2.01 Pi, 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 reserves the right to install, maintain, use, repair, and replace pipes, ductwork, cables' conduits, plumbing, and wires in, through, above and below the Premises, In the column space, and 10 and under the floor s ab,sexcep that Landlord shall not materially adversely interfere with Tenant's business Notwithstanding that the kiosk shall for some purposes be deemed Qperatnl s within the Premises. ess scifi provided for, whenever in this Lease the words "Premises" is used in this Lease,?shall includetthe kiosk withinaits meaning. Section 2.02 Delivery of Promises. (a) A 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 or what items, If any, the prior occupant of the Premises is required to or may leave therein. (b) Notices of Avail ility Tenant receives and PosseQ????, The Premises shall be considered available to Tenant when Landlord's written notice of availability of the Premises ("Notice of Avallabiii of the Notice of Availability, Tenant shall have only limited access to the Premises for purpo es)of Upon ands space t verification. The Notice of Availability shall not constitute delivery of the Premises and Landlord shall retain possession of MobilePros-CapitalCity-Kiosk-Final.doc May 21, 2008 1 AirsVJTF 5 I UIV r-laimues until the earlier ofl?date Landlord delivers possession to T i`?;, t by a,notice of possession ("Notice of Possession) or upon the Construction Commencement Date, at for all purposes set forth in this Lease. In the event Landlord has dI which time sall have access to the vered a NoticetofhAva lab lity to Tenant but hs ?of 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) Delav. 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 anq install the kiosk and to adapt the same for the Permitted Use (herein called 'Tenant's Work"). Tenant shall commend 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 co has received, and comply with all requirements set forth therein. In the event of any i tco bf Tenant acknowlges it s sit nc es between hetext of this Lease and the Tenant Design Criteria, the Tenant Design Criteria shall prevail. Tenant's Work shall be commenced on or before June 1, Date") and shall be completed on or before July 1, 2008 (the "Rent Commenc2008 ement bate"s). tTe nt s Work shall be in accordance with its Final Plans (as hereinafter defined) as approved by Landlord. Tenant shall include the following work to the entire. Premises: 1. Install new internally illuminated storefront sign. Tenant's Work shall be performed (1) 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), (111) 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 monner 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, coordinator (herein called "Tenant Coordinator") for Landlord's approval, plans Tenant s? all submit to Landlord's tenant aspect of Temant's Work, including the following items: (i) a colored rendering called " Plana") specifying each including an internally-illuminated, individually lettered sign (or other type of sign as specified g of tie proposed storefront and signs, storefront and professionally lettered Trade Name signs and sign shop drawings, (i simple materials tol used in the kiosk and signs, (iii) photographs of fixtures to be used, (iv) the floor plan of the Premises, and (v) mec chanis call, plumbing, sprinkler, and electrical drawings, if any. Tenant shall prepare Its Plans in accordance wlith 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". 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 notetl", Tenant need not resubmit the Plans, but Tenant shall revise such. Plans to incorporate Landlord's required changes a6d Tenant covenants that Tenant's Work shall comply with the notes disclosed on such "approved as noted" Plans. (c) Plan Review Fee. Deleted. (d) Insurance/Buildino Permit. On or before the Construction Commen ' ant 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 Pommencement Date at Tenant's sole cost and expense. Such remodeling shall include, refinishing, renewing and/or re lacing 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. M Alterations by Tenant. Tenant shall not perform any construction oo make any alterations (including painting, decorating, changing the architectural treatments, fixtures, decor, or applance of an part penetration through any roof, floor or exterior or corridor wall) in or to any a n of the kiosk, obtaining Landlord's written approval and will remove promptly, upon La dlord srf ec4uest, any such al eerationsumade MobilePros-CapitalCity-Kiosk-Final.doc May 21, 2008 1 AirWJTF 6 i i WWI K1011 approvw Tenant shall not, without having obtain - andJorr?'s prior written consent any work whatsoever to the kiosk, or to areas reserved to Landlord or excluded from Tenant in the Tenant Design Criteria or ;;hopping Center regulations. Any damage to the kiosk or to an perform y person or property occurring as a res a of this provision shall be the sole responsibility, cost, and expense of Tenant. Notwith tared ng the fore net oTe breach shall be permitted to make nonstructural alterations to the kiosk, which alternations comply with Landlord's then current Tenant Design Criteria, not to exceed Five Thousand Dollars ($5,000.00) g g? Want shall written approval, but with at least ten (10) days written notice toLaduring ndlord,npro twelve (12) month wut ided that Tenantpprovdes waivers and/or releases as set forth in Section 2.04 below. sand/or Furthermore, Tenant shall make, at Tenant's own cost and expense, ali 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 Cons ructlon Liens. (a) G nerall . 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 (arid any subcontractors and sub-subcontractors, execute and file in the Clerk's or Prothonotary's Office for the County In which the Shopping Ce if so r) to ter sl located agwaiver of the right to file mechanic's liens against the Premises and the Shopping Center in a legally enforceable form a Landlord ("Waiver of Liens"). The Waiver of Liens shall provide, to the extend PProved by general contractor for itself and all of its subcontractors, sub-subcontractors, permitted under applicable law, that the all lien rights that it may have against Landlord's estate, right, title and in errestanman and suppliers waives any and Shopping Center. any part of the Premises and/or (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) Di r 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, de osit, any such event, Landlord shall be entitled if p or bonding proceedings and, in permitted by the foreclosure of the Lien or claim of Lien by the fie orrpwith? interest, costs and expenthe ses. s. Allutco is and expens or 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 Op rate. (a) ' Opening of Premises. Tenant agrees 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 publiic in the Premises no later than the Required Opening Date (as specified In the Fundamental Lease Provisions). (b) Failure to Open/Operate. If Tenant fails to open its business to the p'blic 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 (1/30 ) 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 arid shall in no way relieve Tenant from any of its obligations under this Lease, including the obligation to open and op Landlord shall have all other rights and remedies under this Lease, at law and inequityits buiness in the Promises, and , ar sing 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 sell 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"), which shall contain approximately same number of square feet as the Premises. Landlord shall advise Tenant in writing ("Relocation NOW) co ttthe vAtlon of the Relocated Premises and the date by which Landlord will require Tenant to complete such relocation. Within thirty MobilePms-CapitalCity-Kiosk-Finai.doc May 21, 2008 1 AimVJTF 7 %-,w nays oT l enanrs receipt oldiord's Relocation Notice, Tenant shall`" ` ise Landlord in writing whether Tenant a, rPes It relocate to the Relocated Premises in accordance with the provisions of this Section. (b) Rioht to Can ar. 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 u sixty (60) days prior written notice to Tenant ("Cancel atlon 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 on 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-link 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 Lenoth of Term. The term of this Lease (sometimes herein called the "Tenn") means the period of the "Interim Term" followed immediately by the period of the "Rent Tenn." The "Interim Term" means the period commencing on the date of this Lease and ending on the date immediately preceding the Rent Commencement Date. The "Rent Tenn" means the period commencing on the Rent Commencement Date and ending on the Expiration Date (both as defined in Fundamental Lease Provisions), as extended pursuant to Section 3.03 or by agreement executed by Landlord and Tenant, or as sooner terminated as provided herein, as the case may be. If not sooner germinated 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 upm Tenn 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 Effi of Holding Over. (a) Holover. If Tenant or any party claiming under Tenant remains in part thereof after the Expiration Date or earlier termination of this Lease (a "holdovor")eno tenancy o 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 holdover, Tenant shall pay liquidated rent to Landlord upon demand in an amount equal to all Percentage Rent and Additional Rent plus double the Minimum kent 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) SSood Faith Neaotiatienc, Notwithstanding the foregoing, in the conducting good faith negotiations to extend the Term or to enter into a newease forte event and Tenant are Pre ses,IT nant shall continue making all payments at one hundred percent (100%) of the Rent (including Additional Dent) 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 an 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 s any pas claiming obtains possession of the Premises from Tenant. uch time as Landlord MobilePros-CapitalCity-Kiosk-Final.doc May 21, 2008 \ AirsVJTF 8 ! ARTICLE 4: RENT Section 4.01 Tenants Aaraement To Pay Rant For the right of use and occupancy of the Premises during the Rent Teasrm ", Rent") Tenant at the hereby times agrees and to in pay Minimum Rent, Percentage Rent, and Additional Rent (collectively referred to herein 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 any check accepted by Landlord or any statement in correspondence accompany ngtsuch check that acceptance of such lesser amount is payment in full shall be given no effect. Section 4.02 Minimum Rent (a) Minimum ent. Tenant shall pay to Landlord a guaranteed annual mir)imum rent ("Minimum Rent") as set forth in the Fundamental Lease Provisions, which shall be due and payable in twely 12) equal in advance,. on the first day of each calendar month of the Rent Term at Landlord's Rent pa monthly installments, pay the first installment on the Rent Commencement Date whether or not such date is thf3 first aytof adcalendarr month. (b) Proration. In the event that the Rent Commencement Date shall be aI day other than the first day of a calendar month, Tenant's first payment of Minimum Rent shall be prorated for the fnActional month between the Rent Commencement Date and the first day of the first full calendar month in he 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 determlining 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 or if the Shopping Center is expanded by more than 50,000 square feet, Tenant agrees 'that Tenant's Minimum Re t 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 Marketina Scrvice. At Landlord's discretion, Landlord may allocate a Minimum Rent to fund the Marketing service (as described in Article 10) which ma portion of Tenant's 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 Minimum 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 Sales made during such Lease Year in excess of the applicable Break Point (set Jforth 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 hen fixed for the payment of Minimum Rent, together with Tenant's Monthly Rieport 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 Mirhimum 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. i (c) Payment. In each Lease Year or Partial Lease Year, as the case mar be, Tenant shall be obligated to pay Percentage Rent on tenth (10"') 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 he date on which any such adjustment is to occur (hereafter referred to as the Renta 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 s, 11 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 and he 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 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 Gros Sales. The term "Gross Sales" means the amount of the sales price of all merchandise, wares and other goods sold (including gift and merchandise certificat rented or licensed, and the actual charges for all services performed, conduct when redeemed), leased, by Tenant a subtenant, licensee, concessionaire and other occupant in, at, frrom orr arising out of he use of the Premises by any 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 MobilePros-CapitalCity-Kiosk-Final.doc May 21, 2008 1 Aimt/JTF 9 . (i) where the order, originate in, at, from or arise out of the use of the Premises, whether performance is made from the Premises orelsewhere; or delivery (ii) made or performed by mail, telephone, Internet, telecopy, fax, webs orders received, filled or delivered in, at or from the Premises; or ite or similar means and for the Premises; or (iii) made or performed by means of telephonic, mechanical or other vending means or devices in or Ov) customary course of its business which Te , would or does ant, and any csubtenant redit or attrib liven o, Its or other occupant, in the normal and s 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 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 ant 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: V) 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 inicluded 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 (vi) sales to employees at a discount, not to exceed one er of sale; (vii) cash from permitted pay telephone and vending machine for) he exclusive use by ?Teand employees. nant's Section 4.05 Reuortina of Gross Sal-so: Year End Adjustment. (a) Monthly Reoort. 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 (f) the amount of Gross Sales during such month, (if) 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 Commencement Date and the first day of the first full calendar month in the Rent Term and Ten ant's Gros Sales dung 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 eac Year a complete statement (the "Yearly Report") certified as a full, t' Lease financial officer, showing in reasonable detail the amount of Gross Sales during such Lease Year and thenamount'of Percentage Rent paid to Landlord for such Lease Year. Tenant shall not be permitted ;to modify the Yearly Report once furnished to Landlord. (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;ln 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, voucheirs, 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 Riaht to Iner?,..? Landlord's prejudice to Landlord's examination and audit rights. Tenant'acceptance and records (n Percentage cludin9 'Rent without books payments and shall be 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 da d 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 (10) to such prior books and records and the right to require explanation from Tenant, its nation agents and employees. (c) MobilePros-CapitalCity-Kiosk-Final.doc May 21, 2008 1 AIrsVJTF Tenant's Failure to Comply. If such audit shall disclose that (f) any !of the Yearly Reports understate 10 Gross Sales during the reportin O recorded Gross Sales or kept ingoks of of the report to the extent of two perc?it (2% or more; or Tenant has not accounts and records for the period required by Article 4; or (I)ii)f Tenant shall be delinquent in delivering to Landlord the Yearly Report or Monthly Reports for two (2) consecutive months or more twice in any Lease Year, then such understatement, failure or delinquency shall be an "Event of Default" as d than 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. ( efined in within ten (10) days after demand. Such deficiency will bear interest at the "Default Rate" (defined in S ct on16-03) from and after the date it should have been paid until paid. from . (d) 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/o o) 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 Addition, 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 Charae. 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 Charg " Fifty Dollars ($250.00) or (ii) five cents ($.05) per dollar overdue for the ?nu the amount of the greater of (i) Two Hundred expenses incident to the handling of such overdue p rpose of defraying Landlord s administrative check is returned for insufficient funds or other reasons payments. the fault of Landlord, then mTenant hallbpay Landlord,uon 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 PavaWe an +.. wi........?_ ^ UM^na 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 counterclims 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 Viand/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 Deooit. 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 thereon or an ) pact to the Shopping Center and all improvements any part thereof. Such taxes and assessments, including Landlord's reasonable costs and expenses (including statutory interest, if any) in obtbining or attempting to obtain any refund, reduction or deferral of such taxes are collectively called the "Taxes" in this Lease. (b) Tax . "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 315t of such calendar year and each succeeding twelve (12) month period thereafter commencing in the Term provided, however, shall commence on the Rent Commencement Date and terminate on the immediately succeeding December 31s. axIthe the first T Year 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 harae. (a) Tax Qharae. Tenant's share of the Taxes in each Tax Year (the 'Tax Charge") shall be an amount to the amount obtained by multiplying the total of all Taxes payable during such Tax Year for the Shopping Center less equal 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 tot all amount of square feet of the GLA of the Shopping Center In effect on the last day o each calendar month of the Tax Year. MobilePros_CapitalCity-Kiosk-Final.doc ?avment of Tax Ch?arae. Tenant shall pa the , in advance, without demand or setoff, in an amount equal to one-1(h) Tax Charge as Additional Rent during the Rent Term in equal Charge as monthly calculated installments above in paragraph (a). Landlord estimates Tenant's Tax Charge for t he amount set forth in Section 1.01 (h) of this Lease multiplied by the GLA of the Premises. Lan twelfth (1/12th) of the Tax first Tax Year to be the and may adjust such monthly 1( and payment at the end of any calendar month. The first such installment shall be due 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 Onsuin9 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 Charge shall include Tenant's share of such Taxes on or before the Rent Commencement Date. Lan Tenant an invoice setting forth Tenant's share of such Taxes, together with copies of receipted bills evid Tenant's Tax payment of such Taxes. dlord shall send to encing Landlord's (c) ?tffication of Tax ChA=. After Landlord has received the Tax bills for each calendar year, notify Tenant of (i) the amount of Taxes on which the Tax Charge is based, (ff) the amount of any refund r deferral expenses, (iii) the total GLA of the Premises and the Shopping Center (less the Excluded Ara Landlord will Tax Charge is based and (iv) the amount of the Tax. Charge. If the aforesaid monthly,' pa eduction or Charge for a given calendar year are greater than Tenants share of the Taxes payable!for a given calendar s) on which the shall receive a credit from Landlord for the excess against installments of the Tax Chargpayments on account of the Tax and if said t year, Tenant becom payments are less than Tenants share, Tenant shall forthwith pay Landlord the difference ing due to Landlord; Section 5.03 Tenant's Additional Tax Obligations (a) Additional Tax bliaations. Tenant shall pay, before delinquent, any and all taxes a impositions, excises, fees (including any impact fees) and other charges ssessments, 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, improvements (including, but not limited to, those required to be made pursuant to Tenant's Work) alterations, changes and additions made b Tenant, equipment, leasehold by merchandise and personal property of any kind owned, installed or used by Tenant in, from or upon the Premises. If the property of Landlord is included In any of the foregoing items, the aforesaid taxes, assessments, impositions, excises, fees and other charges shall nonetheless be paid by Tenant as herein provided. Tenant shall pay, when due and payable, any sales tax or other tax, assessment, impo?sitlon, or other e now or hereafter levied, assessed or imposed upon or against this Lease or any Rent or other suims pad or oabe 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) I u In . 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 gross 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 rvi (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, system, and any other utility facility and/or service) supplied to or for the Premisesby,Lalndlo d ort the applicable utility company, municipally and/or other governmental body or authorfty 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 re uire as as for the installation of all such meters or other devices. q well (b) _4u2 ply. 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 "Altemate Service 'Provider") or continue to contract for service from the current utility service provider. Landlord may, after thirty any one or more of the utility services to the Premises without any responsibility to Ten'antte cept to connect, attTenant s 0 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. (c) C i . 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. MobilePros-CapitalCity-Kiosk-Final.doc , May 21, 2008 1 AirsVJTF 12 '?; ?nera?eme vstem. --?._ Deleted. Section 6.02 Service Charaes. (?) Service Charaes. In the event any utilities used In the Premises are supplied b Landlord, pay to Landlord as Additional Rent at times and in the manner hereinafter set forth, charges for ventilation and/or air-conditioning services as set forth herein. Such charges are collective) Tenant shall Charges'". certain utility and heating, y called the "Service (b) Failure t_pav, If Tenant fails to make an such payment payment is due, or upon failure of Tenant to pay any other sums of Rent ortcharges du utnder thislL ease ) days in full, Landlord from the date may, without limitation, cut off and discontinue any water, energy and sanitary services furnished to or for the P 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 remises by (c) Interruption of Services: N., W- . . Landlord shall not be liable or responsible for any loss, dam expense Tenant may sustain or incur by reason of any change, failure, curtailment, interruption, disruption, "brown out" age or defect in the supply or character of any utility supplied to the Shopping Center or Premises or if the quantity or character or 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 Tenantto any abatement or diminution Rent or relieve Tenant from any of its obligations under this Lease. Tenant shall operate the Premises in such a manner of as shall not waste energy or water or burden or harm sanitary service. Landlord may cease to furnish any one or more said services without responsibility to Tenant except to connect the service facilities with such other nearby source as may be available for the services so discontinued. (d) Sprinkler Charoe. Deleted. (e) Trash and GarbaakRAm„"..1. 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 u the containers provided by Landlord or Landlord's trash removal service. he eve 0. Landlord Provided, , s to Tenant shall utilize In t 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 a third-party vendor, directory to such vendor (the "Refuse Handling Charge"). The failure to pay timely any third-pa rtvendor 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 it 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 an trash facilities provided by Landlord; rather, Tenant shall arran y removed from the Premises and Shopping Center in accordanc Section 7.07). ge, at e with all Govemmehtal Requirements (as definednin (f7 Telehong. All telephone service required by Tenant for it 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. y ARTICLE 7: USE OF PREMISES Section 7.01 Solo Use and Trade Name. Tenant covenants and agrees that throughout the Rent Term Premises for the Permitted Us , Tenant shall continuously use and operate all of the e 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 it expense, procure any and all governmental licenses and business in or from the Premises and shall at all times comply with the requirementpof each such )licensee and permit. Landlord does not represent or warrant that it will obtain for Tenant or that Tenant will be able to obtain any license or permit. Section 7.02 Hours. Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously operate, conduct its business within and otherwise use the Premises in accordance with the terms and conditions of this Lease (unless the Premises is rendered unfit for occupancy by reason of fire or other casualty, in which event Article 12 shall control). Tenant will keep the Premises open for business to the public at least every Monday through Saturday from 10:00 until 9:30 pm and every Sunday from 11:00 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 sho in r to a majority of retail tenants in the Shopping Center.p Theequ ementdof this that Sswch ection are changes subject applied Governmental Requirements. to any and all MobilePros-CapitalCity-Kiosk-Final.doc May 21, 2008 1 AiMVJTF 13 S"lon 7.W, 1qW em Operat(onal Reaufrents. (a) S_ a_ les. Tenant will not conduct or permit to be conducted any auction, fire, bankruptcy, business, or similar sale or utilize any unethical business methods; however, this provis?on shall Of periodic:, seasonal, promotional or clearance sales. going-out-of- all not preclude the conduct (b) Nuisance Uses. Tenant will not distribute or cause to be distributed it or in the Shopping handbills, notices, or other advertising. Tenant will not conduct or any which are prurient, or otherwise generally not considered appropriate in accordance with Landlord's s ti's s Center any operation for the Shopping Center. Notwithstanding anythin ? permit any activities, that might constitute a nuisance, of prohibited from selling or distributing any of the followin g ntained herein to this contrary, Tenant is specifically marijuana smoking (e.g. "water pipes" or "bongs"), "roachc I( SI) pipes of the type and nature commonly associated with items, materials or paraphernalia which are or may reasonably bconstrued to ben nt?endedefor use in connection with narcotics or other unlawful substances; (ii) sexually explicit merchandise; and (iii) over m types of smoker's novelty nature. merchandise of an offensive (c) nsor ff nses. Tenant will not use or transmission including loudspeakers, phonographs, radios,tel vi sions, or any musical instrument in suichtm nner thatn or sounds shall be audible beyond the interior of the Premises. Tenant will keep all mechanical apparatus free of vibration the and noise which may be transmitted beyond the confines of the Premises; will not cause or permit strong, unusual, offensive, or objectionable sound, sights, odors, fumes, dust, or vapors to emanate oO be dispelled from the Premise 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. s. (d) Shi>aoing and Recei Ina. Tenant will not receive or ship articles of anX kind except through the facilities provided for that purpose by Landlord and will not permit any delivery of goods, supplies, merchandise, or fixtures to from the Promises. 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. an Common Areas or any pedestrian or vehicular use. y (e) QvanLinofs. 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 bum 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 deems appropriate for its licensees, Invitees and employees. Tenant will also provide adequate lighting during such periods as the Premises is open for business. i (g) Disolavs and S (icitationc, Tenant will not use or the display or sale or offering for sale of any merchandise or for any other bus ness, o0cupation,tord ndertak ng. Tenant will not permit the use of any portion of the Premises or Common Areas for solicitationt, 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. (i) Labor Relatignc 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 abo4 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. G) Grease T and Exhaust. Deleted. (k) Plumbing. Tenant will not use the plumbing facilities for any constructed and will not dispose of any-damaging or injurious substance therinu?ose tither than that for which they were (1) Vendinc Machines. Tenant will not install, operate, or permit to be instolled or operated any coin or token operated vending machine, game machine, pinball machine, pay telephone sl, amusement device, or machine for the sale of beverages, foods, candy, cigarettes or othep temsCkexcept so?ely?forcusee by Tenant's employees in non-sales areas and not to exceed collectively two (2) machines or devices. (m) Lawful Puroom. 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 Caccat?o? compact discs. • Tenant will not store, display, rent, or sell 'any audio or video cassettes or (o) Remodel -First cac? dit , 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 sol MobilePros-CapitalCity-Kiosk-Final.doc a cost May 21, 2008 1 Alrst/JTF 14 °1 QAPense, as same is reasonabIFecessary during the Term. (P) Shoooing k- Tenant will not permit any shopping carts ow Areas, even if taken there by customers. owned or leased by Tenant in the Common (q) 502k-1-0 -9. Tenant will not permit smoking in the Premises. (r) Summon 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 A DeareM, enant specif icall both the genera manner in which Tenant's merchandisers d splayed s allymeeert thetstandards of a fi st I? a ppearance of the kiosk and the the event that Landlord shall give written notice to Tenant of Landlord's objection wlt:6 respect aforesaid matters and Tenant, within si -class regional shopping center. In to either satisfaction, Landlord shall have the right, i x (60) days of such wrien n addition to all other rights and reined es set forth objection to bLandlo d's to ? cure the be in default of the Lease. herein, to declare Tenant to (t) R din . Tenant will participate in any recycling programs implemented b La Center. y Landlord at the Shopping Section 7.04 Em Ip me Parkins Areas. Landlord, from time to time may designate that particular portions of the Shopping Center "Employee Parking Areas") are to be used by Tenant and its employees, or other individuals working at or from th Premiss and, in such event, such employees/individuals shall park their vehicles onl ' in the Employee areas (the the Tenant shall famish Landlord with a list of Tenant's and empto yeas' vehicle license numybers within fifteen (15) days after Tenant opens for business in to Premises and thereafter, at Landlord's request and within fv nyee Parking Areas. Tenant shall notify Landlord in writing of any addition, deletion or other cha nge a lidays of such request, each employee of the provisions of this Section prior to each employee to or ebm such list. days shall notify Premises. If Tenant's employes do not park their vehicles In te mEmployee Parking 4iea asnt or work at or from the give Tenant notice of such violation. If Tenant does not act to correct such violation required, Landlord may within two (2) days after Landlord's notice of violation is given, Tenant shall pay to Landlord, as Additional Rent, an amo nt equal to One Hundred ($100.00) per day per violating vehicle. For any subsequent violations, said charge shall commence without the necesls ty of further notice and Landlord shall have the right to have the violating vehicles towed at;Tenant's expense. y Section 7.05 ins and AdYertisina. Tenant sail not lace or permit advertising matter (collectively a "sign") t withouILan lord's the prior kwrittnsapprovalop l e anteshall sub decoration it lettering or reasonably detailed drawings of its proposed signs for review and approval by Landlor? prior to utilizing to Landlord Tenant may, without Landlord's approval, use in the storefront professionally made, ?easonablys zed signs ? ndicatinr prices, styles, and like information. All signs shall be insured and maintained by Tenant in good condition, operating order, and repair. Flashing signs are prohibited. Landlord shall have the right, after twenty-four (24) hours prior written notice to Tenant and without liability for damage to the Premises reasonably caused thereby, to remove any items displayed Or affixed in or to the Premises or Shopping Center which Landlord determines (in its reasonable judgment) to be in Violation of the provisions of this Section. Tenant will keep the storefront sign and display windows in the Premises lighted during all periods that the Shopping Center is open to the public and for thirty (30) minutes after required business hours and for such other period's as reasonably required by Shopping Center rules and regulations. Section 7.06 Radius Restriction. (a) Radius Restri .tip.,. Tenant covenants and agrees that during the Term neither Tenant nor an " of Tenant" (hereinafter defined) shall directly or indirectly own operate, manage or have a financial interest in an business within the "Radius" (as defined in the-Fundamental Lease Provisions) which i$ similar to that of any Affiliate sells or displays, directly or indirectly, merchandise or other goods Tenant s which by Tenant at or from the Premises (the "Competing Store ")easur services om?theara those sold, offered, or displayed Shopping Center nearest to the Competing Store in a straight line without regard for road mileage property line foregoing of the covenant hereinafter called the "Radius Restriction"). "Affiliate of Tenant" means a proprietorship, corporbtion, partnership, unincorporated association, or other person or entity "controlling," "controlled" by, or under common "control" with Tenant or an or entity serving as Guarantor, if any, of this Lease. The words "controlling," "control h person meanings given them under the Securities Exchange Act of 1934, as amended." and "control" shall have the (b) Mo ation. If Tenant violates the Radius Restriction, then, in addition to Landlord's other rights and remedies, Landlord shall have the right to (i) add the Gross Sales of the Competing Store to the Gross Sales made b Tenant at the Premises for the purpose Rent payable thereafter by an a mount equal to he highest se Percentage Rent playable by! Tenant inua l amount calendar r Minimum to the opening of such Competing Store. The Gross Sales of the Competing Store shall be determined by applying th definition of Gross Sales in this Lease to the Competing Store. Landlord shall have sill rights of inspection year prior records with respect to Competing Stores as it has with resp to the , and the r furnish books and such Monthly Reports and Yearly Reports from the Competiing Stores as it i se required to a furnish shall with resto ct to lord Premises. Pe the (c) Existing Stores. This Section shall not apply to any'such Competing Stores open and operating within the Radius as of the date of execution of this Lease provided Tenant has disclosed Landlord the existence Competing Store prior to execution of this Lease. of the MobilePms-CapltalCit Iosk-Final.doc May 21, 2008 1 AirsNJTF 15 1W W, Section 7.07 irp m?liance with Laws• VXaWWs Substances, (a) and loc Com_ olian Q itch s Tenant agrees, at its own expense, to comply with all applicable federal, state al laws, rules, regulations, ordinances, guidelines, judgments and orders: and all recommendations requirements of any public or private agency having authority over insurance passer its rates (incl d nsofaruraahned underwriters and insurance rating bureaus), now in effect of hereafter enacted or passed during the Term ins ce Premises and any of Tenant's Permitted Use, signs, operations, or occupancy of the Premises b Tenant including, without limitation, all Environmental Laws, the Americans with Disabilities Act, zoning ordinances ofar as lan d use restrictions, building codes, and fire codes (collectively, the "Governmental Requirements"). are concerned and related "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 Subctanr? 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, waste, hazardous substances, hazardous asteyf petroleum pollutants, toxic materials (including, without limitation, asbestos, polychlorinated biphen, P 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 an 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 shall store and handle such substances in strict compliance with Environmental Laws. all (c) Storage Tanks. Tenant will not, without obtaining Landlord's prior written approval, which approval may be withheld in Landlord's sole discretion, install any storage tank (including, but not limited 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 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 Notifi±!^ Tenant shall notify Landlord immediately upon learnin that any provision of ts 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 I MM9.1. 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 whethef Tenant is in compliance with the provisions of his 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 uhless 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 Fn •.... , , „= I Laws. approval of any transfer of the Shopping Center under Environmental nLaws. Scoopeete with Landlord in obtaining execute and deliver all affidavits, reports, responses to questions, applications or o hcIrlfli gsnrequired ytLandlo daand related to Tenant's activities at the Premises, (11) 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 nb 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. Deleted. ARTICLE 8: COMMON AREAS AND OPERATING COSTS Section 8.01 Landlord's Control and u.+..t..n ace of mmm.... w (a) Landlord's ontrol. All Common Areas in or about the Sho exclusive control and management. Landlord shall operate, manage pping Center shall be subject to Landlord's replace (or cause all of the same to occur to) the Common Areas in g d and lr asb able co ditionaandnmanner and , , 16, surface, , repair and Landlord shall have the sole right and exclusive authority to employ and discharge all personnel with r .and/or hire independent contractors to perform the same. In addition, Landlord ma aspect thereto security in the Common Areas at a level determined by Landlord. Y provide (or cause to be provided) (b) Right to lose Common Areas. Landlord may at any time and from time to time close all or an the Common Areas to make repairs or changes or to such extent as may, in Landlord's opinion, be necessary prevent a dedication thereof or the accrual of any rights to an any portion of portions of the Common Areas and perform such other acttssin anor to the p therein,l d to Commoln A eas as, n hel exercise of temporarily busin all judgment, Landlord shall determine to be advisable with a view to the improvement of tNe convenience and use occupants and tenants, their employees and invitees. Landlord may at any time and from time good mess restrain any person from use or occupancy of any of the Common Areas excepting, however, ' thereof by Landlord, and bona fide invitees of either who make use of these areas for their intended purposes to and time in exclude and with the rules and regulations established by Landlord. Tenant, other tenants of accordance MobilePros-CapitalCitY-Kiosk-Final.doc May 21, 2008 1 Airst/JTF 16 (c) Lndlord's Use. Wdlord shall at all times have the right to Mize the Common or Areas f events; the leasing exhrbi s carnival-type shows, rides, indoor or outdoor shows, displays, automobile and other haws or lice;ising of kiosks, push carts and food facilities, or promotions, s landscaping; seating areas; seasonal displays and decorative items; and Center. aeany .y other use which, in Landlord's judgment, tends to attract customers to or benefit the customers of the Shopping Section 8.02 Chances by Landlord. As between Landlord and Tenant, Landlord (or others entitled to) shall at all times and from. time to time right and privilege of determining the nature and extent of the Common Areas and of making such rearrangements, additions or reductions in and to the Common Areas which, in its opinion, are deemed to be have the which are made as a result of any Governmental Requirements. Such rights shall ihclude b changes, following: desirable or ut not be limited to, the (I) changing or modifying and adding to or subtracting from the sizes, locations, shapes and arran emen parking areas, entrances, exits, driveways, parking aisle alignments, and other Common Areas; g is of (ii) altering the direction and flow of traffic; (iii) restricting parking by Tenant's employees to designated areas; (iv) constructing surface, sub-surface or elevated parking areas and facilities; I v) establishing and changing 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: 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 Are" shall be open for use. Tenant agrees to comply with all such rules and regulations. Section 8.04 Tenant's Rlahta 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 u the same in common with Tenant, and it shall be Teniant'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 u meeting room or auditorium in the Common Areas shall be subjectr to such schedules and pn ayment ofTenant's fees right c use any Landlord may from time to time adopt. or charges as Section 8.05 Operatina Costs. I (a) Landlord, subject to reimbursement by Tenant as set forth in Section 8.08, 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 thoseexpenses, capital and non-capital costs, and any other cost or expense of whatever kind or nature related to operating, repairing, managing, insuring, 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 expenses (including taxes thereon), whether expended or incurred, of the following: (I) operating, repairing, replacing, lighting, cleaning pain limited to, preventive maintenance) the Common Areas and the Shopping C nterng, and maintaining (including, but not (ii) removing snow, ice, rubbish, and debris; (iii) inspecting, policing, providing security (including surveillance equipment), and regulatin traffi (iv) licensingirenting of sweepers, trucks and other equipment; g c' (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 which the Shopping Center or any part thereof is constructed or other mechanic or physical components of the (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 MobilePros-CapitalCRy-Kiosk-Final.doc May 21, 2008 1 AirsVJTF 17 pPrtai^ V to samme ° • °° ng t Mvrice costs, costs a?ciated with any change in provider, av ility: and standby fees and charges (i) providing uniforms and replacement of uniforms; (x) the licensingtrenting or purchase of music programs, services and loudspeaker, ttelevision and/or similar audio and video systems including the furnishing of electricity therefor; therefor; (xi) providing seasonal displays and holiday decorations, including the furnishing of electricity (xii) complying with any environmental or other similar laws, rules, r including acquisition costs of licenses or permits and the cost of removing Hazardous Substances from the Sh Center; regulations, guidelines or orders, opping (xiii) obtaining and operating public transportation or shuttle bus 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, benefits of the Shopping Center manager, assistant manager, bookkeepers and nnts, i uniforms, and fringe personnel, the Shopping Center office personnel and all other personnel, office equipment and other expense required tto supervise and accomplish the foregoing; (xvi) cost of Landlord's policy or policies to insure the Common Areas, Premises, and the Shoi 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, special cause of loss form property liability insurance covering personal injury, deaths and property damage with aran rso business interruption insurance; false arrest, detention or imprisonment, malicious prosecution, libel and slander, and wronal injury ngful entry oroev tion; worker's compensation insurance; plate glass insurance; contractual liability insurance, " damage 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 retntions or deductibles; commercial general liability and automobile liability and losses paid ©ut 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); and (xvii) 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. (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 contractmrs 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 replacements with identical improvements, but that Landlord may elect to change thena urre implement of he des vn, app, repairs, materials, or quality of such improvements so long as such changed improvements! serve the same purposeaasnthe 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 respect 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 One Ina Cog, (a) Share of ODeratlnd Coctc, Tenant's share of the Operating Costs in each Accounting Period of the Rent Term shall be an amount aqual 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 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. (b) Reimbursement of Landlnrrl, Tenant shall pay Tenant's share of the 0 during the Rent Term in equal monthly installments, in advance without demand ors off, g noamountegiual to one- twelfth (1/12th) of Tenant's share of the Operating Costs as calculated above in paragraph (a). Landlord estimates Tenant's share of the Operating Costs for the first Accounting Period to be the amount set forth in Section 1.01(i) of this MobilePros-CapkalCity-Kiosk-Final.doc May 21, 2008 1 AlmUiTF 18 waa ?nuluptrea by the i;LA of thp%mises. The first such payment shall be'' cmrnencement Date. If the Rent Commencement Date shall n C not be the first day of its snare of Operating Costs for the fractional month between t,ue and payable month, Tenant on the Rent first full calendar month in the Rent Term shall be prorated on a per diem basis (calculat a calendar month, Tenant's payment of the f the month) and shall paid together with the first a en the Rent Comrr? (cal cued lated ent on Date the and actual the first number day of days p Ym t of Minimum Rent. (c) Adjustments. After the first Accounting Period, Tenant shall continue to pay to Landlord such amount of Tenant's share of Operating Costs on the first day of each month, in advance, without demand estimated setoff or deduction, but the estimated amount of Tenants share of Operating Costs may be adjusted and any Landlord after the end of each Accounting Period during the Rent Term on the basis of the projected Operating and without without Costs for by the subject Accounting Period, within Landlord's reasonable business judgment. Upon Landlord furnishing to revised Tenant a statement setting forth the revised estimated Operating Costs, Tenant shall pay to Landlord the revised estimated equal monthly installments, each installment to be a sum equal to one-twelfth (1112th) of the revised estimated Operating Costs, in advance, on the first day of each calendar month thereafter until the next succeeding revision in such share in estimate. (d) t tem nt. 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 s Accounting Period, the amount of Tenant's share thereof and a ucll subsequent monthly payments on account of Tenant's share of Operating Costsdmade by Te a ti dur ngpsuch Accountin II• Period after receipt of such statement shall be applied by Landlord as payment on account of share of Operating Costs for the next ensuing Accounting Period andsha shall not redute Tena tes obl gation to'opa o 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 any Accounting Period, Tenant shall pay to Landlord the deficiency within thirty the at of with respect to the the statement from Landlord; if Tenant's payments exceed Tenant's share of the) Operating after Costs, Landlord shall credit ing of 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 full peormd of its 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 b Tenant. y (17 Pr j n. If the Rent Term commences or terminates (other than by reason of Tenant's default) 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 Ren-1- 6v 1 -- - 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 Preimises. 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. 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 peric ainting and making all non- structural ordinary and extraordinary, foreseen and unforeseen maintenance, repairs, ind replacements to the kiosk and its systems. Such obligation shall Include repairing, replacing, and maintaining the ent?e kiosk, all interior of kiosk, all trade fixtures, fixtures, equipment and signs within the Premises; utility portions t the Premises which are installed by or demised to Tenant or which exclusivelyseerve eth44 Prremises; and sec conduits security g ide the similar enclosures, locks and closing devices. ty grilles or (b) No Overload, Tenant will not overload the electrical wiring or other systems y s 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 Tenants apparatus. serving the kiosk or within (c) Damaae to the Premi¢pc, oTenant will r nonstructural) to the kiosk caused by any construction por? aterat o0 saperformed by Tenant orbringing (into theether structural kiosk any property for Tenant's use, or by the installation or removal of such property, regardless' of fault or by whom such dams was caused, unless and then to the extent caused by the negligence of Landlord, its servants or employees. MobilePros-CapitalCt Kiosk-Final.doc May 21, 2008 1 AimUJTF 19 Landlord's Rlaht,,ccess 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 utility systems or equipment located in, above or under the Premises which Landlord may deem necessary or de ' comply with any Governmental Requirements, recommendations of an insurance ratinb bureau or any similar public to any private body, or that Landlord may deem necessary or desirable to prevent waste or deterioration in connection suable to or operation of the Premises if Tenant does not make such additions, alterations, repairs or other work promptly after receipt th the of written demand from Landlord. Nothing herein shall imply any obligation s, repairs Landlord*to do of any work which wi 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 this Lease, is Tenant's responsibility Tenant shall pay the cost thereof to Landlord as Additional Rent upon demand. of 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 stori structures over all or any part of the Premises and/or Sho es or other ppin Center. In connection therewith, Ldlord may relocate Tenant (in accordance with Section 2.06) and/or Tenant's gnage and equipment and ay erect temporary scaffolds and other aids to such construction at Landlord's sole cost and expense. Section 9.04 No Rent Abatement or 9amanes. Tenant shall not be entitled to any abatement of Rent or to any damages for inconveniene, disturbance, loss of business or other damage to Tenant occasioned by Landlords exercise of any rights provided iri 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 discretion and without limitation, advertising placement and production, websites, s pro'2ram may include, at Landlord's seasonal events, advertising for the Shopping Center promotional pecFal events, shows, displays, signs, other activities, equipment and supplies needeto marketthe Shoppiln Center, and shervices of a ateralmarketing director and all related staff and outside consultants deemed necessary by Landlord to carry out, the without limitation all payroll, payroll taxes and employee benefits of any such director and staff. Marketing Service, including (b) Ceasing rvics. 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 name. (a) Marketina Service Charo . 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 amount of Tenants Marketing Service Charge shall be increased automatically on the 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 Assecsmo . In the event that during the Rent Term there is (i) any renovation of th Center which involves the renovation of the storefronts of o e Shopping "Storefront Renovation"), or (ii) any expansion of the Shopping Center w?hich increases the leasable area by ten per ena ) or more,of the existing tenants' sp (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 Re Tenant shall pay to Landlord a special assessment (the "Special Assessment") in an amount positioning, 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 b the Speb Assessment will e advertising and/or special events to promote the Storefront Renovation, the Building Expains on, or the Reposition ng.d for MobilePms-CapitaiCity-Kiosk-Final.doc May 21, 2008 1 Airst/JTF 20 of M?ifn?? Aase?fafrn., ;'? If a merchants' association for the Shopping Center exists, Tenant agrees that :Landlord shall right to take any steps required to dissolve such association and/or to replace it with a marketing service, advertising fund, or any other similar fund or service designated by Landlord. In such event an have the unilateral Promotion fund, 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 i and upon notice to Tenant, is dissolution. ARTICLE 11: INSURANCE, INDEMNITY, WAIVER OF SUBROGATION Section 11.01 Tenant's Insurance. (a) Require overage. 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 therf and or any other obligations of Tenant, the minimum insurance coverage lie eda be ow.aCoverawge will be Iprovided Iwithitfo ms 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. (i) 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 an 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 liability insurance also shall extend to any liability of Tenant arising oue in Tenant's care, custody and conrol. Such indemnities provided In Section 11.04 below. (ii) Property Insurance. Special peril all risk property insurance covering Tenant's stock in trade, trade fixtures, furniture, furnishings, such r x) the kiosk and all of ( interest in all of the improvements and betterments installed in the Premises n by Tenant, in h each case to the (ext nt 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 pro($1,000,000.00) each occurrence with respect PertY damage of not less than One Million Dollars performance of the Lease. to Tenant's owned, hired and non-owned vehicles, assigned to or used in (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 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 resp representatives, officers, directors, officials, and employees as additional insureds aro 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 limits are in full force and effect. Such, certificate shall identify this Lease and contain provisions that coverage afforded unddr 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. (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 a premiums thereof. The insurance required hereby may be maintained by means of aepolcytor 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 al 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 falls to provide and keep in force any or all of the in 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, insurance policies MobilePms-CapitalCity-Kiosk-Final.doc May 21, 2008 1 AlrsUJTF 21 U«vwra s Ins#-e , (a) Landlord shall at all times during the Term carry and maintain the types of insurance listed amounts and forms specified. below in the (I) Commercial General Liability Insurance. Commercial general liability insurance against for property damage and bodily injury or death, such Insurance to afford protection to the limit of not less than F' Dollars ($5,000,000.00) in respect to claims occurrence. property damage, injury or death to any number of uve Million persons arising out of any one (ii) Landlord's Real and Personal Proe Center owned by Landlord [exclusive of any tenant improvements and betterments and property prequired to be insured Insurance g those of the Tenant pursuant to Section 11 .01 (a)(11) or required to be insured by other occupants of the Shopping Center in an amount not less than one hundred by mount 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 special form coverage insurance policy, together with insurance against sprinkler am min the standard ISO form of mischief, and such other risks as Landlord may from time to time determine and with any such dedulctiblesn as Lalnd ord 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 Effect on Landlord's Insurance. Tenant will not do, omit to do, suffer to be done, keep, which will violate the provisoes of Landlord's policies or suffer to be kept anything in, upon, or about the damage by fire u other hazards (including, but not limited to, public liability), which will adversely affect9 andlo d'sp rop oior rating or which will prevent Landlord from procuring such policies in companies acceptable to liability Landlord, rovided T nuant 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 date 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 ping Center for the use or uses made thereof, Tenant will pay the amount of such increase or, in the evtthattothenccipcu stances existing at the Shopping Center shall have contributed to such increase, such equitiable portion of such as determined by Landlord, as Additional Rent upon Landlord's demand and' will thereafter pay henamount 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, applicable, at its option rectify the condition existing on the Premises which caused or was a cdntributi g cause of he Landlord 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 changes which make up the Property Insurance rate on the Premises. Section 11.04 Indemnification and Waiver of Claim. (a) Tenant agrees to defend, indemnify, and save harmless Landlord A ent and an lessor(s) and mortgagee(s) of the Premises and Shopping 9 y ground and underlying Center from and a any and all claims, , demands, liability, costs and expenses (including, but not limited to, reasonable attornegy'sainst fees and disbursements)t 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, servants, or employees on an t of Landlrd's property or its or their respective agents, of the provisions of this Lease pTe ant shall not, howe er? be ell ble for damages or n ury occasioned bt th reach of any or willful misconduct of Landlord, Agent, or any such ground of underlying lessor(s) or mort? y t negligence employees, contractors, or servants, unless such damage or injury arises from gnena or their agents, this Lease to assume or insure. Tenant's obligations under the aforesaid indemn ty shall not be which limited to the amour of commercial general liability insurance coverage which Tenant is required to ca and, if Tenant ils 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 cosks remedial and monitoring costs, damages to the environment, attorneys' fees, and costs of litigation ' substances or violation of any Environmental Laws (as defined in, Section 7.07) T. Ina the a etntl n1 insurance coverage us 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). MobilePros-CaptalCty Iosk-Final.doc May 21, 2008 1 AlmUJTF 22 (c) Unless and the olely to the extent such damage is causd 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 corsideratibn of Landlord's execution of this Lease, hereby releases all claims for, loss of life, personal injury or damage to nant or any person claiming through Tenant resulting from any fire, accident, property or business sustained by Tenant Center or an occurrence, or condition in or upon the Shopping 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 (i) 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; (ill) 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 Shop Center; v) the ping 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 waiver 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. (d) Landlord agrees to defend, indemnify and save harmless Tenant 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 dandemics, or other catastrophic events beyond Landlord's reasonable control. (e) This Section 11.04 shall survive the expiration or earlier termination of this Lease. Section 11.05 Mutual Waivers. In the event the Premises or its contents are dama to the extent covered by its policies of special cause of loges form destroyed by fire or other insured casualty, (i) Landlord, property insurance, hereby waives its rights, if any, against Tenant with respect to such damage or destruction, even tf 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 R nstruct the Pn nlees'. 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 terminatis 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 TTe ant's Duty to Reconstruct the Promises. 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 Ootion 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 MobilePros-CapitalCity-Kiosk-Final.doc May 21, 2008 1 Airst/JTF 23 (VI) LandlorWeets not to permit kiosks in the Commons F?reas of the enclosed mall. (b) T n n ' Option to Terminaro Tenant shall have the option :o terminate this Lease upon giving notice to Landlord within thirty (30) days after the Shopping Center or Premises is damaged or destroyeif the written 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 Term. remises (c) Effective pats 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). all Section 12.04 Abatement of Rent. If Landlord or Tenant does not terminate this Lease pursuant to Section 12.0 and if the Premises rendered wholly or partially unfit for the carrying on of Tenant's business by such damage or destruction, hen 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 possession of the Premises to Tenant or (ii) the date Tenant reopens for business. . Nothing inrth snSecttiion s alll 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 premise . If the entire or any part of the Premises shall be taken or condemned either permanently or temporarily by ay public or quasi-public authority under the power of eminent domain, condemnation or expropriation or by conveyance in lieu thereof or by aWeement (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 subsequent to such date. Tenant shall remove the kiosk at the time of termination and id in for the condemnation award which may be payable. shallll not participate ineany Section 13.02 Partial Condemnation of the Premises. Deleted. Section 13.03 Condmmnation of the Shonnine nter. 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 Landl of any Rent ich Tenant may have hall havord no claim age n?L and lord or he condemning authority for for any the value subsequent to such possession. Tenant ?Y fo of the unexpired Term. Section 13.04 Damages. All damages in the event of any Condemnation are to belong to Landlord and arty 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. ARTICLE 14: FIXTURES AND PERSONAL PROPERTY Section 14.01 Imurovements to Premises. Removal The kiosk and all improvements made to the kiosk by Tenant including, but rot 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, written Tenant those alterations, changes, and additions made to the Premises during Landlord the Term wh ch shalltbe re oved bytTenant at the expiration or termination of this Lease, and Tenant shall, at Tenant's sole cost and expense, the sam and repair any damage to the Premises caused by such removal or by the installation of such ate) at ons,vch nges 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, shelvin showcases, mirrors, inventory and other personal property and hereinafter called Personal Pro g' property of Tenant throughout the Term. Provided Tenant is not in default under this Lease, Tenants all have the right at any time during the Term to remove its Personal Property atored or ln3talled in the Klooh, If Tenant 15 in default under this Lease, Landlord shall have the right to take exclusive possession of the Personal Property and to use the Personal MobilePros-CapitalCity-Kiosk-Final.doc May 21, 2008 1 AirstfJTF 24 r-FL wnrY ul rent or charge, W rmitted under the laws of the stateknswhich th Shopping Center is located. 13ossession or asserts such lien in any manner, Tenant shall not possession of the Personal Property, shall have the Property until possession is relinquished by Landlord r, the lien is remove . If Landlord shall t)e construed s permit Tenant to remove the Personal Property prior to remove or permit the removal of the Personal Section immediate replacement with similar Personal Property d, as thethe case end of may thbe. e he Term Nothing in without this Tenant's Premises unsuitable for the continued conduct of Te ant's Perm tt dIUse. Tenant,uattits expense, shall i mmediately or better , or otherwise to render the repair any damage to the Premises or Shopping Center by reason of installation or removal of any Personal Pr unless the damage is caused by Landlord pursuant to Section 9.03. If Tenant fails to remove the Personal Property the Premises upon expiration or earlier termination of the Lease, then such Personal Property shall become Property property without further act by Landlord or Tenant unless Landlord elects to require all or a portion of such er from Property to be removed by Tenant, in which case Tenant shall promptly remove the items designated b Landlord's restore the Premises to its prior condition at Tenant's expense. Tenant hereby agrees to indemnify an Personal and Landlord from any liability, claim, expense or judgment arising from or related to Tenant's Personal Property by left Landlord at the Premises after expiration or earlier termination of the Lease, except for liability arising from and hold harmless Landlord's willful misconduct. ARTICLE 15: ASSIGNMENT AND SUBLETTING Section 15.01 Assignment and Subletting. Tenant shall not permit anyone other than Tenant to occupy the Premises r an transfer, assign, sublet, enter into any license, concession, or other occupancy or use g eementsBOor mortgagenor hypothecate this Lease or Tenant's interest in and to the Lease or the Premises or a 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 an third its obligations under this Lease. Any transfer b merger, y person and shall not relieve Tenant of including, but not limited to, Y consolidation, liquidation or otherwise by operation of law, 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 written consent, the Transfer would be effective. The Request Notice sall prior contain,hwithout I mitation, at eaLandlord's st (I) he 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 the P emises; t nd v) the mo etary a drnon mes; onetary terms and conditions of helter oseto the storefront of and within the propposed; Transfer. Landlord shall have the right and option (the 'Take-back Option"), exercisable Tenant notice within thirty (30) days after Landlord's receipt of the Request Notice, of reacquiring by Landlord the Premises iior portion teirteof 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 shad pay to Landlord upon Tenant's receipt, as Additional Rent, all sums and other economic consideration (whether by lum sum payment received by Tenant in any month as a result of or related to the Transfer whether or not denominated rent which exceed n) 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 to Transfer). 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 b the approved (30) days after the date Landlord gives its written consent to the proposed Transfer, th proposed transferee) within thirty consent and the Transfer shall be automatically void and of no force or effect whatsoever. Tenant agrees hat VL 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 Landlord's request for and Landlord's receipt of such additional information. by the number of days between Tenant shall pay to Landlord the sum of Five Thousand Dollars ($5000.00) ('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, Landlord for Landlord's execution the assignment and assumption agrsuch sum to pWd at time Tenant delivers eement xecuted by thetassignee and assignor. to Section 15.02 Assignment to Parent, Subai larv Affiliated Corporation of Tenant; Notwithstanding the provisions of Section 15.01, Tenant shall have the right, 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 MobilePros-CapitalCity-Kiosk-Final doc May 21, 2008 1 Airst/JTF 25 of fifty Parvent (ar%) interest, provided that Tenant shall deliver to Landlord within ten (10) days after the date of such ;assignment (x) an executed co of the assignment wherein such Affiliated Corporation assumes for the benefit of Landlord all of Tenant's obli ations under this Lease without releasing Tenant from liability for any of the terms, conditions and covenants of this L ease (including the payment of Rent), (y) a statement certified by a certi ied 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 Co Tenant's Affilie Corporation as defined above, then such an event shall constitute a Tras fertand sshall no hall belonger Section 15.01. subject to he prow s ons of 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 all covenants, conditions and agreements by it to be performed as set forth In this Lease,, In addition to event Ilelseof the stated in this Lease as Events of Default, the following shall be deemed to be an Event of Default (each of which e 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" Plano, 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 it 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 (i) except as otherwise provided in this Lease, Tenant's failure to observeor perform any of the other Lease covenants, terms, or conditions for a period of twenty (20) days after written notices thereof from Landlord to Tenant (unless such failure cannot reasonably be cured within twenty (26) 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 G) 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 days); the insolvency of Tenant or Guarantor of Tenant in bankruptcy or equity sense; any assignment y Tenant 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 Rem_ ies. (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: . W 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 MobilePms-CapitalCity-Kiosk-Final.doc May 21, 2008 1 AlrWJTF 2e 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 Premises or terminating this Lease; and/or (iv) to terminate Tenant's right of Possession of the shall have the right to remove an summary proceedings (or otherwise, as allowed by law) without terminating this Lease and, in hey event of re-entry and termination of Possession, Landlord 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 n ot?ce proceed to distress and sale of the goods, chattels, personal property, and other contents of the Premises and levy the Rent and/or to cause issuance of and levy of distress writ for Rent upon the contents of the Premises. Tenant , pay all costs and officers' commissions Including watchmen's wages and sums chargeable by Landlord and charges Landlord may impose by statute as commissions to the constable or other persons making the levy and, ? .n such shall cases, all costs, officers' commissions, and other charges shall immediately attach and become part of Landlord's es which Any tender of Rent without said costs, commissions, and charges made after the issuance of a warrant of distress shall not be sufficient to satisfy Landlord's claim. claim for Rent; (b) Confession of Judgment 12 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 a 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 b Tenant to appear for Tenant, assess damages, and confess or otherwise enter judgment against Tenant for all or an 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 an of the Rent and/or other amounts and sums shall fall or be due or be in arrears. This warrant of attorney may be exercise 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 Posy ==r n Tenant covenants and agrees that if there is a 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 ca an Event of 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, court, attorney of any court of record and/or Landlord (as well as someone acting foe Landlord) in any and all act o sf 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 or under Tenant. Thereupon, writ of possession may forthwith issue sanpons claiming directly d be served,' without any indirectly by, through, proceeding whatsoever except as may otherwise be. required by applicable law. If, fbr any reasonpafter the for g?oi g action or actions shat) 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) R leg, In any action or proceeding described in or in connection with Section 16.02(b) an 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 of such and/or Section filing of the original of this Lease shall not beneces ary, notwithstanding any statute,urule of court of awncu to m n the 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 ma a 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) We Tenant expressly waives (to the extent legally permitted to be waived): (I) the benefit of all laws (now or hereinafter In force) exempting any goods in the Premises or elsewhere from distraint, levy, or sale in any legal proceedings taken by Landlord to enforce any rights under this Lease; (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 th Premises, shall be liable to distress for rent; the (III) the right to issue a writ of replevin for the recovery of an or levy or seek to recover any goods attached upon an execution for Rent, damages, or otherwisender a distress for Rent (iv) the right to delay execution on any real estate that may be levied upon to collect any amount which may become due under the terms and conditions of this Lease and any right to have the same appraised; Tenant hereby authorizing the Prothonotary or Clerk of Court at Landlord's instance to enter a ;writ of execution or other upon Tenant's voluntary waiver and agreeing that said real estate may be sold on a writ bf execution or other process; process (v) all rights under applicable law authorizing the sale of an after seven (7) days (or other applicable statutory y golds distrained for rent at any time thereof, and period) from said distraint without any appraisement and condemnation (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 summa terminating this Lease or retakin of summary Proceedings or an action for possession or to g possession, Tenant hereby agreeing that the respective notice periods provided for in MobilePros-CapitalCl"iosk-Final.doc May 21, 2008 1 Airst/JTF 27 at all ue sumclent in aM%uch case; vi all rights of redemption au der applicable law. (f) Inso? Iv_y Notwithstanding. Tenant's obligation to pay Minimum Rent,; Percentage Rent, as of the first day of each month during the Term, in the event that an insolvenc flied by or against Tenant or Guarantor (if any), Tenant shall be obligated to pay all such;Minimum R and Additional proceeding is and Additional Rent on a ratable basis from the date of the commencement of any y? such pbankruptcyroceeding or through similar the end of the Rent, Percentage Rent, month in which such proceeding is commenced. Furthermore, notwithstanding anything contained herein in the event that'a bankruptcy or similar insolvency proceeding Is filed by or against Teant, and Landlord is the contrary, any avoidance or similar claim under Chapter 5 of the Bankruptcy Code (as defined herein) or otherwise in or connection r with such proceeding, Landlord shall have or may assert any and all claims against Tenant or its trustee (or subjected t similar representative) to the fullest extent permitted by this Lease. nection Section 16.03 Damaaes. (a) Dam- If Landlord elects to terminate Tenant's riht to terminate this Lease, Landlord may relet the Premises or an g possession under this Lease but not to upon such terms and conditions as Landlord shall deem appropriate (which may be l an or eX a th uch rentals and Term) and, to the extent Landlord receives the Rent therefor, a balance of the expenses as Landlord may have incurred in recovering Landlord shall apply the Rent first to the payment of such expenses and attorneys' fees) and for putting the Premises Into goodf order and repaCinguornremodelingliorl a terin legal he same for reletting, and any other expenses, rent concessions, commissions, and charges paid, assumed, or incurred b or on behalf of Landlord in connection with reletting the Premises (collectively, "Costs of Relettin " funiment of Tenant's covenants under this Lease. Tenant covenants to pay to Landlord Rent up to the time of g )m and then to the termination of Tenant's right to possession under this Lease and, thereafter and until the end of the of the amount of Rent under this Lease less the net avails of such reletting (if any) during the same Term, the equivalent 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 event Landlord terminates this Lease (unless prohibited by applicable state law). Furthermore, (1) Landlord is under no t affirmative duty to maximize rent collected from any replacement tenant or 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 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 Damaged" (as reasonably determined by Landlord): y W the present value of the projected Rent payable by Tenant under this Lease that would have accrued for the balance of the Term (Additional Rent 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 compounded if any such increase is not otherwise set forth in this Lease), plus percent (6%) per annum (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 Coots 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 reilets the Premises for an effective Rent higher or lower than the Rent assumed for purposes of calculating the Benefit of the Bargain Damages, the Ben of the Bargain Damages shall not be recalculated and Landlord shall be entitled to retain all of the proceeds of sue f reletting. h (c) Default Rate. The "Default Rate" means the highest amount allowed by applicable law. A Rent which is not paid by Tenant to Landlord within five (5) calendar days after it is due shall bear interest at he unt Rate. Default Section 16.04 ii.andiord's 3e -Heln, 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 perform such obligations on behalf of and for the account of Tenant. Landlord shall give Tenant at least three to prior written notice of its election to self-help except in the event of emergency, for which no prior notice shall eq days Upon demand by Landlord, Tenant shall reimburse Landlord for Its costs and expenses incurred in exercising s-help, MobilePros-CapitalClty-Kiosk-Finai.doc 9 help, May 21, 2008 1 AirWJTF 28 Pius interest at the Default Ralom the date Landlord performs such obf?g ion. Landlord's performance of Tenant's obligations shall not constitute a release or waiver of Tenant from such obligation. any of 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 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 (30) days after written notice from Landlord shall be in default under this Lease and, if as a consequence of such default, Tenant shall recover a money pursue the curing of the same). If judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of f such judgment and levied thereon against the right, title, 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 he 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 or be liable to Tenant for any consequential or special damages tht occur as a result of Landlord's breach of a term, covenant, obligation or condition 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 a 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 Leaal 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, (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 parry 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 insolvenc, proceeding, Landlord shall be entitled to recover from Tenant or antrustee, custodian, reyce ver, 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 (1) 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 Riaht to Assume Lease and Purchase 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 to assign this Lease or Tenant's interests in this Lease pursuant to 11 U.S.C. § 365 or otherwise, Landlord shall have the right of first refusal to purchase and assume this Lease and Tenant's interests thereunder (collectively, "Tenant's Leasehold Interests") upon the following terms and conditions: (a) If Tenant receives a bona fide, arm's length offer to purchase Tenant's Leasehold Interests (the 'Third Party Offer"), which Third Party Offer Tenant or Tenant's trustee (as the case may be) deems acceptable, Tenant or Tenant's trustee shall first deliver a copy to Landlord ("Landlord's RFR Notice"). Landlord shall thereafter have the right to assume and acquire Tenant's Leasehold Interests described in Landlord's RFR Notice on the same terms and conditions as set forth in the Third Party Offer. . (b) Within thirty (30) days following Landlord's receipt of Landlord's RFR Notice, Landlord shall notify Tenant or Tenant's trustee (as the case may be) in writing of Landlord's intention to exercise the right of refusal to acquire Tenant's Leasehold Interests or be deemed to have waived such right of first refusal with respect to the transaction described in Landlord's RFR Notice. If Landlord timely exercises Landlord's right of first refusal, Tenant or Tenant's trustee shall be deemed to be contractually bound to sell and assign Tenant's Leasehold Interests exclusively to Landlord in accordance with the terms and conditions set forth in the Third Party Offer. If Landlord fails timely to respond to Landlord's RFR Notice or declines to exercise the right of first refusal granted hereunder in such instance, then Tenant or Tenant's trustee (as the case may be) shall be free to sell and assign 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 ranted to 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(fl or any similar statutory provision. Section 16.08 Shop Ana -enter 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 ass to trustee, receiver, assignee for the benefit of creditors, or otherwise except as may be specificall p any MobilePros-CapitalCity-Kiosk-Final.doc y provided therein. May 21, 2008 1 AirsVJTF 29 rooming contained in this Sectio.08 shall be deemed in any manner to limb Landlord's rights and remedies Bankruptcy Code. under the Section 16.09 Refection 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 exgtent provided by Section 502(b)(6) of the Bankruptcy Code, without reduction based on Landlord's failure to mitigate dama es and Tenant hereby specifically waives any rights (i) to assert that Landlord has a duty to mitigate damages, (ii) to object to any claim filed or asserted by Landlord in Tenants bankruptcy mitigate damages and has breached such duty, in whole or in part , and oir (iii) on grounds that Landlord has a du to to tas ert 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). 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 all such lease or Mortgage now exists or may hereafter be created with regard to all or an apply regardless of whether Such subordination shall be effective without the execution of any further instrument. Tenant als agrees thatlany oCenter. lder 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 an in the event of the termination of any lease referred to in Section 17.01 wherein Landlord sgthe lessee, Tenant ha l attom 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, deliver whatever instruments may be required to carry out the intent of Sections 1or Mortgee ' T shall execute and 7.01 and 17.02eandtin 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 Mortgagee, or such purchaser of Landlord's interest, or Landlord's lessor shall not be (1) liable for any actiontor omission of any prior landlord (including Landlord) under the Lease, (if) subject to any off sets, iclaims or defenses which Tenant might have against prior landlord (including Landlord), (Ili) 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 Certlflcete, 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 Landlord, Mortgagee, Landlord may designate (and Landlord, Mortgage, purchaser, and any such a daessee(s) may rely thereon)ra 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, pective exis ing or any th srtLease, and may al osbe d emed an tE vent Default by Landlord art of Landlord's Interest in the Sho y pping Center or Section 17.05 Landlord's Richts of AlierisVon 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 6,om time to time such instruments reasonably required by Landlord and Mortgagee to effectuate the provisions of this Section. MobilePros-CapitalCity-Kiosk-Final. doc May 21, 2008 \ Airst/JTF 30 ® ARTICLE 18: MISCELLANEOUS- Section 18.01 Interpretation. (a) The captions, table of contents, and index of defined terms appearing in this inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or in' Sections or Articles of this Lease. Lease are tent of such (b) Landlord and Twnan+ nefin a If more than one person or corporation is named as Landlord this Lease and executes the same as such or becomes Landlord or Tenant, then the words "Landlord" or ' or Tenant in wherever used are intended to refer to all such persons or corporations, and the liability of such persons or r corporations Tenant" 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 grammatical changes required to make the provisions of this Lease apply in the plural number where there is more than one Landlord or Tenant and to corporations, associations partnerships, or individuals, males or females, shall in all instances be assumed as though in each case fully expressed. (d) ConstryLction 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, is 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 Enloyment 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 national) recognized Landlord may also deliver any such Notice to Tenant by delivery in expedited delivery service, when received. dress in such event, Notice shall be deemed to have been given when so delivered, the Ada it of the or at the Premises and, making person 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 do Landlord if executed by a duly authorized officer, partner, or owner of Tenant. Section 18.04 Real Estate Investment Tnist, 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" of 1986, as amended (the "Code") and the U. S. ptartment of T ea ury egulat bns) promulgated of the thereunue Code nder (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 ro for the purposes of Section 856(d) of the Code and the Regulations, other than by reason of the applica tion of "Section 836(d)(2)(B) or 856(d)(5) of the Code or the related Regulations, such Rent shall be adjusted so that It will so qual' ; provided, however, that any adjustments required pursuant to this Section shall be made so as to produce the (in economic terms) Rent as payable prior to such adjustment and that such adjustments shall not result in any inc eases nt Tenant's Rent. Section 18.05 Reciprocal Easement Aar ment. 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, or otherwise modified from time to time) between' Landlord and each party thereto (such easement agreements herein collectively called the "REA"). Section 18.06 RelatIRNWn ? Parties. Nothing contained in this Lease shall be deemed or construed as creating the relationship of partnership, or joint venture between the parties hereto or cause Landlord to be responsible in any wayr for?Te ant's acts, debts, or obligations. Section 18.07 &22"22012- Except as otherwise specifically set forth in this Lease, all rights, obligations( and liabilities herein given t imposed upon Landlord, Agent, Tenant, and Guarantor shall extend to and bind the several respective heirs to or 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, ar other executors, MobilePros-CapkalCity-Kiosk-Final.doc personal representative of May 21, 2008 1 AirsUJTF 31 - u.a rv ignment Mich party has been consented to by Landlor in writing. Section 18.08 Su ai of OblleAtt....e All of Tenant's obligations accruing during the Term pursuant to Sections 4.04 4.05 8.06, 11.03, 11.05; 11.06, 16.03, 18.09, and as otherwise specifically set forth in this Leese, shall survive the 02, expiration 7.07, earlier termination of the Term. tion or Section 18.09 Broker's Comrm["Io . 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 th exception of Agent, no broker or finder called the Premises or any other space in the Shopping Center to Tenant' attention for lease. In the event that any broker or finder other than Agent claims to have submitted the Premises or the other space in the Shopping Center to Tenant, to have induced Tenant to lease the Premises, or to have taken art i s dealings, negotiations, or consultations with respect to the Premises, the Shoping Center or transactio, any party having failed to disclose such contact will be responsible for and will de end' ndeminify,,andtsave the other arty the rty Agent harmless from and against all costs, fees (including attorneys' fees), expenses, liabilities, and claims incurred or and suffered by such party and/or Agent as a result thereof. Such agreement shall survive the expiration or termination of this Lease. earlier Section 18.10 invalidity: verabyity. 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 cotenant shall be valid and enforced to the fullest extent permitted by law. Furthermore, each covenant, this Lease is and shall be deemed and construed as a separate and ndependentocovenant oft he party bound bin undertaking, or making the same, and not dependent on any other provision of this Lease unless expressly so provided. y 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 forth in this Lease. set Section 18.12 A2Riicabie Law. The laws of the state in which the Shopping Center is located shall govern the validity, 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 precedin breach at the time of its acceptance of the Rent. Landlord's waiver with res g the Shopping Center shall not constitute a waiver in favor of any other. Landlord's to one or more or occupants consent to anytact by Tenant requirin of 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 a check or and no such endorsement, statement or letter shall be deemed an accord and satisfaction, hethr such check ore ee st 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 an other right or remedy available to it. any Section 18.15 Corporate Tenants. If Tenant's form of organization is as an entity behalf of Tenant hereby covenant and warrant that: Tenant Its a dul y ? y constitutteedreentit q persons executing this Lease to in which the Shopping Center Is located; all Tenant's franchise, corporate ualed to do business in the state all future forms, reports, fees, and documents necessary for Tenant to comply with applicable laws will be filed b Tenant when due; and such persons are duly authorized by the goveminbode and other lienable taxes have been paid to date; on behalf of the entity. 9 y of such entity'to execute and deliver this Lease Section 18.16 Recce. This Lease shall not be recorded and Tenant shall not record a short form or'memorandu MobilePros-CapblCit Iosk-Final.doc m of lease; however, May 21, 2008 1 A mVJTF 32 ' the Term, and Tenant shale execute same. ?•a uw n' nt to 7C'od a short form or memorandum of lease, at Landlord's expense, at any time during Section 18.1'r ,4 ent of Landlord• Service p. Quid ra. (a) /1c e t of ndl rd. PREIT Services, LLC and/or PREIT-Rubin, Inc. ("Agent") in connection with the execution of this Lease and shall not in any event be held liable to L for the fulfillment or non-fulfillment of any of the terms, covenants, or conditions has acted as Landlord's agent proceeding that may be taken by Landlord against Tenant or by Tenant against Landlord, Any Landlord or to Tenant liability hereunder (including any waiver r subrogation rights) shall apply against Landlord. of this Lease or for any action 's Agent's liability, with equal' force and effect eas a Lwaverdof (b) Service Providers. Any services which Landlord is required to furnish pursuant to this Lease may, option, be furnished from time to time, in whole or in part, by employees of Landlord or Agent or its or by one or more third persons hired by Landlord or Agent. Tenant agrees that upon' Landlord's written request, at es 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 h it will shall result on an estimated basis in Tenant having to pay in the aggregate more money on account of its occupancy than itt is the Premises under the terms of this Lease, or having to receive fewer services or services of a lesser quality it is presently entitled to receive under this Lease. of Section 18.18 Finalization of haraes. Notwithstanding anything to the contrary contained in this Lease, invoice, or bill rendered by Landlord within a Tenant's failure to object to any statement, eighty (180) plays after Tenant's receipt shall period Tenant's acquiescence with respect thereto o and shall render. such statement, invoice, or billing binding account between Landlord and Tenant. The foregoing ng a final and supporting documentation from Landlord which may otherwise t pr provided by this Leas and synot intended auditto rr nt any such right to Tenant not otherwise expressly provided elsewhere in this Lease. g any 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, an 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/or Guarantor is not acceptable to Landlord, Landlord shall have right to cancel this Lease if Tenant refuses to execute or supply such additional. assurances and/or guarantors as t 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 failure to provide Landlord with a financial statement and/or credit check authorizations all con ti'tute an Eventtof Default. If Landlord exercises its cancellation right, this Lease shall be deemed from any other or further liability, any Security Deposit shall be refuned tlol Tand , each enantiwithd t interest, aand neither party y shallll have any liability to the other by reason of such cancellation. • party Section 18.20 Tenant's Guarantor. Deleted. Section 18.21 Notice to Mort aae?a• performan of Landlerr S O 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 o default as is required to be given to Landlord under this Lease, but Tenant may issue its notice of default otLandlo dt any Mortgagee concurrently. Tenant shall accept performance of any of Landlords obligations hereunder b Morta d Section 18.22 Unavoidable Daiavs. Y 9 gee. In the event that Landlord, Agent, or Tenant shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, inability to procure labor v materials, failure r power, restrictive governmental laws or regulations, pandemic or viral/bacteriological outbreak, riots, insurrection, war actual or threatened), lack of access to the Shopping Center or Premises due to evacuation or tempos closure (including evacuation or temporary closure of the Shopping Center or Premises by Landlord, government (whether due to a perceived, threatened, or actual unsafe condition as determined by Landlord, government, or police ), mage a or governmental order, fire or other casualty , or police order or nature the of the party delayed in performing work or doing acts requi required u derrthe deerms fof this Leasey an "Unavoidable reasonable of then performance of such act, but not Tenants obligation to pay Rent, shall be excused for the Delay. The occurrence of an Unavoidable Delay shall not operate to excuse Tenant from ( completing construction Delay"), Premises within tirneframe set forth in Article 2 of the Lease-unless Tenant gives written no period of the Unavoidable of the and claimed number of days of the Unavoidable Delay within ten (10) days of its occurrence, and Landlor, reasonable satisfaction, shall extend the tics to Landlord of the nature Tenant's Wrk delay. After the Rent Commencement Dateran Unavoidable Delay shall of excuse Tenant from d, upon its equivalent to the number of days of actual Rent and other sums due by Tenant under this Lease, and such Unavoidable Delay shall not extend the Ter failures to perform resulting from lack of funds or the unavailability of a particular contractor or personnel the timely payment of deemed Unavoidable Delays. Term. Delays or shall not be MobilePros-CapitaiCity-Kiosk-Final.doc May 21, 2008 1 Airst/JTF 33 (a) Pri r e. Tenant is present) occupying ,agreement with Landlord (the aforesaid agreement and any amendments hereto being Premises hereinafter ur Pursuant to a lease Prior Lease"). referred to as the (b) mbawn. Unless the Prior Lease has been terminated prior to the Rent Commencement execution of this Lease shall be deemed to satisfy he requirements with res anywhere in the Prior Lease and, therefore, the Prior Lease shall terminate on the da Date, the forth Date of this Lease without the necessity of any other or further notice to or from Pda sltoither notice party, of termination set Notwithstanding the foregoing, in the event Tenant is relocating and Tenant holds over under the Prior Le y prior to the Rent Commencement Prior Lease, Tenant will be subject to all holdover obligations pursuant to he terms of the Pr oor Lease incl nation of the limited to, the payment of all rent and other charges set forth therein. including, but not (c) Failure to Comply, In the event Tenant has failed to comply with any, of its obligations under the Lease and such failure is continuing, Landlord may treat such failure as having occurred under this Lease and the right to exercise any and all of Landlord's rights and remedies set forth in this Lease and/or available to it a Prior equity, shall have t law or in (d) R le se. As an inducement to Landlord to execute this Lease, Tenant hereby releases and forever discharges Landlord from all manner of action, causes of action, suits, covenants, damages, claims, and demands, at law or in equity, which Tenant has or may have against Landlord ar sin out of Prior Lease. ,promises, 9 the Section 18.24 Anti-Terrorism (a) Tenant represents and warrants to Landlord as follows: i (i) neither Tenant, its constituents or affiliates nor any of their respective "Tenant Parties") are in violation of any law relating to terrorism or money laundering inclluding, 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 is 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: (i) conduct any business or transaction or make or receive any contribution of funds, services in violation of any Anti-Terrorism Law; or goods, or (ii) engage in or conspire to engage in any transaction that eve evading or avoiding or attempts to violate any of the prohibitions of any Ant -Terrorishm Law. or avois, has purpose of (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 _ftiver of Jury Trish Landlord and Tenant hereby waive all right to a trial mandatory counterclaim or cross claim. Section 18.26 Confidentiality. by jury in any litigation related to this Lease including any It is agreed and understood that Tenant may acknowledge only the existence of this Lease by and Landlord and Tenant and that Tenant may not disclose any of the terms and provisions contained in t tenant or other occupant in the Shopping Center or to any agent, employee, subtenant, or taro nee of y between occupant. Tenant acknowledges that any breach by Tenant of the agreements set forth in t his Lease to any Landlord irreparable harm. The terms and provisions of this Section shall survive the termination of such tenant or his Section shall cause MobilePros-CapitalCity-Kiosk-Final.doc this Lease (whether May 21, 2008 1 Alrst1JTF 34 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 letters of intent, brochures, representations, promises, warranties, agreements, and understandings whether oral or written, between the parties hereto and their representatives, are merged herein and extinguished, d negotiations, , this Lease supersedes and cancels the same. Except as otherwise provided and amendment, change, or addition to this Lease shall be binding upon Landlord or Tenant unless reduced writing and executed by the party against which such subsequent alteration, amendment herein, no subsequent alteration, change, or addition is to be enforced. (b) Tenant hereby acknowledges that (i) this Lease contains no restrictive covenants or exclusives ' Tenant; (ii) this Lease shall not be deemed or interpreted to contain, by implication or o tgional ,any warranty, representation, or agreement on the part of Landlord that any department store, major tenant, or r Tonal orin favor of store or any other merchant shall open for business or occupy or continue to occu an adjoining Center during the Term or an national chain any part thereof, or that Tenant shall generate a certain amount of Grosses the r that any reimbursable amount payable by Tenant shall be an specific claims with respect to the foregoing and acknowledges that T nant not relying on any such warranty, expressly representationwaives, or all agreement by Landlord as a matter of inducement in entering into this Lease, as conditio by Landlord. on of this Lease, or as a covenant Section 18.28 Submission of Lease to Tenant. THE SUBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHAL EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR LEASING OF THE PREMISES, AND L HAVE NO BINDING FORCE OR ANY RIGHTS OR IMPOSE ANY OBLIGATIONS UPON EITHER PARTY UNTIL THE EXE THE DELIVERY OF AN EXECUTED ORIGINAL COPY TO TENANT OR ITS REPRES NTCUTION BY LANDLORD AND Section 18.29 Ackement. ATIVE. THE UNDERSIGNED ACKNOWLEDGES THAT IT FULLY UNDERST JUDGMENT CONTAINED IN SECTION 16.02 AND THAT THE LANDLORD-TENANT,' RELATIONSHIP THIS LEASE IS COMMERCIAL' IN NATURE. TENANT WAIVES ANY RIGHT UNDERSTANDS THE CONFESSIONS OF WOULD BE A CONDITION TO LANDLORD OBTAINING THE JUDGMENTS AUTHORIZED CREATED BY AND AGREES THAT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT TO A ,HEARING WHICH OTHERWISE JUDGMENT AGAINST DL BY SUCH SECTIONS TENANT WITHOUT FURTHER PRIOR NOTICE TO TENANT, ANDD MAY OBTAIN A THEREAFTER GARNISH OR ATTACH AND PLACE A LIEN ON TENANT'S ASSETS PRIOR NOTICE OR OPPORTUNITY FOR A HEARING. TENANT HAS CONSULTED LANDLORD MAY WITHOUT REGARDING THE RIGHTS BEING WAIVED HEREUNDER, HAS BEEN FULLY ADVISED OR OF THOSE PROPERTY RIGHTS, AND KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS' • ' OR WITH AN ATTORNEY OPPORTUNITY TO CONSULT WITH AN ATTORNEY AND KNOWIN WAIVES THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY REGARDING I TENANT HAS HAD THE AND NONETHELESS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES;SUCH RIGHTS. THESE RIGHTS IN WITNESS WHEREOF, Landlord and Tenant, personally or by their duly authorized a ents hav as of the date first above written. g e executed this Lease PR CAPITAL CITY LIMITED BY: PREIT SERVICES, LLC, BY: BRUCE GNQL EXECUTIVE MobilePros-CapitalCttY-Kiosk-Final.doc May 21, 2008 1 Air*JTF T NA T. JAS C MUNICATIONS, LLC By: Title: l Attest: ll.L Title: ?P..tsv ri??l NAV 35 ZIMMERMAN DRIVE ? e A f? /o- U v Ai p ---11 n ? a n v° Z Z CITY MALL ORIVE CAPITAL ® r i far R9.1 m .?.? SIR Hi %< ?m s tiC p g 15, M111az fill, 1 ?a aj? 3+? 5 EXHIBIT "A" PAGE 1 OF 2 s~ P 0 0 m r e ?? (7n r i D s D r ? Spy EXHIBIT "A" PAGE 2 OF 2 ? 'C d O '* ? ID O ^? n m m ? 3 a m??? ° a a=r czD c? ?p ? y cn ° o a ° a to°<o a?oa°.Z-C: m 'may-, cn? mf O p O?i m m ° C x C<D v, 3 o W? m a m ? cD n <• Oi aDy a-3 o o r- RL ff e oimNZm :3-=i3 M x CD N lD 3 c °. Er- 41 W CD ? 0 3 = c m N s n n , CD y m D m v m 3 a o o y m d m s' N 'v o M v, m y Cc m 0?1 tQ n GS `< ` o < ? 0 a o c gav, °- -"n5m? am3 CL CD 0' 0 CD N W (D X 3 X y CI. CD 0 =r o w 1-1 10 0) --3 0 N D) y ? N CL to 0 0 ID a fD m N y m H 3 (n D 0 (D 8 w 0? v, y >?N= Q o=>?D? CL O ~ o a ?' -gym x 8: 0 CD COD a3) °w :. ° 1W EXHIBIT B: UTILITIES Section 6.01 of the Lease provides for the inclusion of this used by Tenant in the Premises Exhibit as the basis for the determination of utilities and the monthly payment therefor. I (a) Elec-- t?• 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 I in such utility. Landlord reserves the right from time to time to designate an alternative electric Y pp Y g generation have the right from time to time toc ange the identify such suppliieri as Landlord deems appmiro priate. and To the Landlord shall extent Landlord receives electric service from an alternative electric 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 (154/0) of Tenant's electricity char e described above. Such administrative charge shall be subject to an increase of up to three percent 3% g Tenant shall also be responsible for any taxes, surcharges, ( )per Lease Year. Impositions, attributable to the utility service being supplied, provided tha such axes, surcharges, irnpostonshand 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) Sher 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, or the Sho based in connection with the use, consution, ppmg Center, pursuant to law, order or regulation made or or supply of gas, sprinklerlor water and sprinkler or water or sewerage connection or system. maintenance gas, shall pay all charges for services used by et and d' or the 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 sole cost and expense, install a meter of a type and at a location approved in advance y Landlord.t of such request, at its MobilePros-CapitalCit 10$k-Final.doc May 21, 2008 1 Airst/JTF 37 EXHWC; HEATING, VENTILATING, AND AIR-jNDITIbNING Section 6.01 of the Lease provides for the inclusion of this Exhibit as the basis f r the determination of uti HEATING, VENTILATING, AND AIR-CONDITIONING (°HVAC," as defined, may include any or all elements ofliheS and ventilating and/or air-conditioning) used by Tenant in the Premises and the monthly eating, 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. Tenant shall not at any time overburden or exceed the capacity of the HVAC systems and Premises. If Tenant desires or if Landlord deems'necessa equipment serving the design of the existin ry installation of any additional equipment or revision of the g 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 andlor 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 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 sastem5 when necessary. Premises will operate ventilation so that the relative air pressure in the Premises will be slightly loss than in the d oiningamall as required by Landlord. Mobilepms-CapitalCity-Kiosk-Final.doc May 21, 2008 1 AirsUJTF 38 EXHIBIT D; GUARANTEE OF LEA?7 Intentionally Omitted. MobilePros-CapltalCity-Kiosk-Final.doc May 21, 2008 1 A1rst/JTF 39 ?xti, b-, t ?-- O M O ? r OD n a o O Nn Y . Q a a Q g J 0 N w a a O r 0 O O r p N m W ? N o N r h W W W °m M O Y 75 Z r 0 M r ? O N 8 r m O r ^ n N O N N O M Uf ro n M 1f7 p ( O n M M 1q N N W W O N p O O O I O 8 n ro m ?; C h Yf ? o N °o ° N g n m ? ad vi n v N G U q O ?NNy o p p a .ON.. oO N 8 m p p8 N O O m Ol ppO N 6 N O N O p? O E N A A N 00 A n ' N O 1` n O A YD N aC of N Z O O O O O O O O O O O O O O N N O N O H 01 C O N O f0 W O N C W 07 O w) N 8 ' N O O N W h h V F r N a N N N r N N r N N W O W O W O W W Q O O O O O O O O 8 O O O O O O O O O O O O 9 O Q O 8 o o e g o W 03 O o 8 8 °o °o °o O O O O O o o O O o rl ? o r {Yy ? .t ?p ? a' a? ? a? as as a a a ? N N N N N N e9 N N N N N N N N /7 i?f {h N N N N 1? A n n n n n n ? rN. n n n rN. ? ? 1N. ? ? ? ? n n ? ? O ? N N N N N N N N N N N N N N N N N N N N N N N ? J row O pO C OO $ O O gQ QO O pO O O O pO O O O O O O O O CO pO o o o Q O `? `? O O O O O O O O O O O O O O V v W F W ix ir U m N y g K K U ai ..] K ti WZ V y 0 a c $ ??8 0 0 0 0 8 8 s" o "s 8 8 s s 8 8 o "0 -0 g a o 8 s 10 ?: N h N N OMD N YWf N YOf N N N N N N h h N n h N W) I Q O W W Ol W 'I r O W . w . Y Y ._ ._ C E g $ g N W W 10 W W M A A 1. n n W W ED dp M p O a j A A A A A h P f. P P n n h r n n A A A a O Q: E Z 7 N N N N N N N N N N O O O O O O O O O O O E a o , v o ° ° 0 in z o 0 0 0 o z o 0 0 a N C4 0 0 0 0 o a z ci 0 cc Ix Ix Ir Ir Ix w 0 O ? N n EG O O ? pA C a a Z v co J N W o a a 0 No S O M p- N ? W O O If) O m O b m Vf Y Y M O e?f C U v c .- E Q c O v c ell .2 O o D U .1 o? C J ? $I U S Co ?I m N c E v ci ? ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. JAS COMMUNICATIONS, LLC, Defendant. CIVIL DIVISION No. to AM Clv i lTe -M n o 0 ' co - Cn 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 Defendant JAS Communications, LLC trading and doing business as The Mobile Pros is JAS Communications, LLC, 132 Strawberry Square, Harrisburg, PA 17101, ATTN: Joe Hathiramani. Date: March 2010 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 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. JAS COMMUNICATIONS, LLC Defendant. CIVIL DIVISION No. 10 - Ab0 Civc ITerM1 NOTICE OF ENTRY OF CONFESSED JUDGMENT FOR MONEY TO: JAS COMMUNICATIONS, LLC Please take notice that a judgment for money in the amount of$1 b(o, 5go1. IS has been entered against you by confession on the date below in favor of the Plaintiff. Date: -SPB AD )- -; 0 ((? Prothonotary, Court of Common Pleas of Cumberland County IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, CIVIL ACTION -LAW Plaintiff, v. JAS COMMUNICATIONS, LLC. Defendant, V. COMMERCE BANK, Garnishee. 1411'~~P~l~i ~4 INTERROGATORIES IN ATTACHMENT TO: Commerce Bank, Garnishee ~ , ~ a -~, _,,,. W _, f~ { ~ ....i~~ ~L.+` +%' ~. /+~ V t...~ r~.. ~;.. '' `= ~ t y. 4 ~..f . ^ -+.~ YOU ARE REQUIRED TO FILE ANSWERS TO THE FOLLOWING INTERROGATORIES WITHIN TWENTY (20) DAYS AFTER SERVICE UPON YOU. FAILURE TO DO SO MAY RESULT IN JUDGMENT AGAINST YOU: 1. At the time you were served or at any subsequent time did you owe the defendant any money or were you liable to defendant on any negotiable or other written instrument, or did defendant claim that you owed it any money or were liable to it for any reason? Defendant has account 538395450 with a balance of $4973.80 Defendant did not receive $300 exemption. 2. At the time you were served or at any subsequent time was there in your possession, custody or control or in the joint possessian, custody or control of yourself and one or more other persons any property of any nature owned solely or in part by the defendant? No. 10-1902 No 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in party by the defendant or in which defendant held or claimed any interest? no 4. At the time you were served or at any subsequent time did you hold as fiduciary any property in which the defendant had an interest? no 5. At any time before or after you were served did the defendant transfer or deliver any property to you or to any person of place pursuant to your direction or consent and if so what was the consideration therefor? no 6. At any time after you were served did you pay, transfer or deliver any money or property to the defendant or to any person or place pursuant to their direction or otherwise discharge any claim of the defendant against you? no 7. At any time before or after you were served did defendant hold any funds in a bank account at the Commerce Bank, including any bank accounts in Pennsylvania? If yes, please state the amounts presently held in each account, and the amounts held on March 18, 2010 in each account. See answer to question 1 8. If you are a bank or other financial institution, at the time you were served or at any subsequent time did the defendant have funds on deposit in an account in which funds are deposited electronically on a recurring basis and which are identified as being funds that upon deposit are exempt from execution, levy or attachment under Pennsylvania or federal law? If so, identify each account and state the reason for the exemption, the amount being withheld under each exemption and the entity electronically depositing those funds on a recurring basis. No 2 9. If you are a bank or other financial institution, at the time you were served or at any subsequent time did the defendant have funds on deposit in an account in which the funds on deposit, not including any otherwise exempt funds, did not exceed the amount of the general monetary exemption under 42 Pa.C.S. § 81237 If so, identify each account. no 10. If your answer to any of the above is in the affirmative, please state the amount or value of the property you are holding. - ~~ . 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 Counsel for Plaintiff, PR Capital City Limited Partnership VERIFICATION The undersigned does hereby verify subject to the penalties of 18 PA. C.S. § 4904 relating to unsworn falsifications to authorities, that he/she is Jennifer Hilbish (Name) _ Levy Specialist of Metro Bank, garnishee herein, (Title) (Company) that he/she duly authorized to make this verification, and that the facts set forth in the foregoing Answers to Interrogatories are true and correct to the best of his/her knowledge, information and belief. (SI ATURE) IN THE COURT OF COMMON~~LEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, CIVIL ACTION -LAW Plaintiff, v. JAS COMMUNICATIONS, LLC, No. 10-1902 PRAECIPE FOR ENTRY OF JUDGMENT AGAINST GARNISHEE ON ADMISSIONS Defendant, v. M&TBANK, Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Garnishee. {A0183770.1 } Stephen S. Zubrow PA ID No. 43523 Moira Cain-Mannix Pa. I.D. No. 81131 MARCUS & SHAPIRA LLP Firm No. 145 One Oxford Centre, 35t1i Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 t~ ^' _. ~> ~, ~-~ ~ # `~ r •~' _. . -_ ~? s _ _. _ - ~._.." ~.- N ;:::~ ~~ 4.~ ~.~- -G s~y~aai~~y a~~ X16 yak ~e-~2 ~~ 79G /Y~7<r~ ~~ l~~f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, v. JAS COMMUNICATIONS, LLC, Defendant, v. M&TBANK, Garnishee. CIVIL ACTION -LAW No. 10-1902 PRAECIPE FOR ENTRY OF JUDGMENT AGAINST GARNISHEE ON ADMISSIONS TO: PROTHONOTARY Pursuant to Pa.R.Civ.P. 3146(b), please enter judgment against Garnishee, M & T Bank in the amount of $3,313.53 based on the admissions in the answers to interrogatories attached hereto, plus interest and costs to be determined. This garnishment does not exceed the amount of the judgment ($107,520.82) Amount on Writ: $ 3,313.53 Costs: Interest and Costs to be determined Respectfully submitted, Dated: May ~J_, 2010 I ~ f Stephen S. Zubrow Pa. I.D. No. 43523 Moira Cain-Mannix Pa. I.D. No. 81131 MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership ~~P17 Q 1VI&TBa,nk May 21, 2010 Marcus & Shapira LLP One Oxford Centre, 35`~ Floor 301 Grant Street Pittsburgh, PA 15219 s~~ ~~ ~ ~~ Legal Document Processing Phone # 716-635-7711 Fax # 716-635-7725 Re: Garnisiiment Summons on Garnis~lee received by Manufacturers and Traders Trust Company PR Capital City Limited Partnership vs. JAS Communications , LLC Case: 10-1902 Pursuant to the above Garnishment Summons, Manufacturers and Traders Trust Company has searched its records and has identified the following open accounts with balances due its customer(s). cct No. Balance Acct No. Balance 842012404 • $3,313.53 If the Writ of Garnishment and Interrogatories also sought to restrain access to safe deposit boxes, then any safe deposit boxes identified at any of our branches are listed below. ranch Number afe Deposit Boz Number one With respect to all safe deposit boxes, an order directing the drilling of the box must first be obtained and Manufacturers and Traders Trust Company must be reimbursed for the cosE of drilling and replacing the lock on the box. Pa.RC.P. No. 3110, 42 Pa.C.S.A. Sincerely, Cathy S. Fisher Legal Document Analyst.. .. ._ _ . (716)635-7711 Enclosure: Responses to Interrogatories _ _ Manufacturers and Traders Trust Compaay P.O. Box #844, Buffalo, New York 14240 ~~~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, CIVIL ACTION -LAW Plaintiff, v. JAS COMMUNICATIONS, LLC. Defendant, v. M&T BANK, Garnishees. No. 10-1902 INTERROGATORIES IN ATTACHMENT TO: M & T Bank, Garnishee YOU ARE REQUIRED TO FILE ANSWERS TO THE FOLLOWING INTERROGATORIES WITHIN TWENTY (20) DAYS AFTER SERVICE UPON YOU. FAILURE TO DO SO MAY RESULT IN JUDGMENT AGAINST YOU: 1. At the time you were served or at any subsequent time did you owe the defendant any money or were you liable to defendant on any negotiable or other written instrument, or did defendant claim that you owed it any money or were liable to it for any reason? ~~2 5 2. At the time you were served or at any subsequent time was there in your possession,. custody or control or in the joint possession, custody or control of yourself and one or more other persons any property of any nature owned solely or in part by the defendant? Jl)~ 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in party by the defendant or in which defendant held or claimed any interest? rJV.4- 4. At the time you were served or at any subsequent time did you hold as fiduciary any property in which the defendant had an interest? N~ 5. At any time before or after you were served did the defendant transfer or deliver any property to you or to any person of place pursuant to your direction or consent and if so what was the consAideration therefor? f ~W 6. At any time after you were served did you pay, transfer or deliver any money or property to the defendant or to any person or place pursuant to their direction or otherwise discharge any claim of the defendant against you? ~~ 7. At any time before or after you were served did defendant hold any funds in a bank-account at the M & T Bank, including any bank accounts in Pennsylvania? If yes, please state the amounts presently held in each account, and the amounts held on March 18, ~10 in each account. MAY not ~~s pro Re vi ~~ ~ ~ ~' 13 ~~~ a`C~ ~( ~ 3 ~~ i 3 • ~~ 4octrm~n~ cti n~oU~Ao ed p"pcesS~~e9a/ 8. If you are a bank or other financial institution, at the time you were served or at 9 Fees any subsequent time did the defendant have funds on deposit in an account in which funds are deposited electronically on a recurring basis and which are identified as being funds that upon deposit are exempt from execution, levy or attachment under Pennsylvania or federal law? If so, identify each account and state the reason for the exemption, the amount being withheld under each exemption and the entity electronically depositing those funds on a recurring basis. ~~ 2 9. If you are a bank or other financial institution, at the time you were served or at any subsequent time did the defendant have funds on deposit in an account in which the funds on deposit, not iacluding any otherwise exempt funds, did not exceed the amount of the general monetary exemption under 42 Pa.C.S. § 8123? If so, identify each account. ~~ 10. If your answer to any of the above is in the affirmative, please state the amount or value of the property you are holding. - Stephen ~S. Zubmw (Pa. I.D. No. 43523) Moira Cain-Mannix (Pa. ID No. 81131) MARCUS & SHAPIItA LLP One Oxford Centre, 35th Floor 301 Grant Street ~'~~~~`~ S FlS~i~f~ Pittsburgh, PA 15219 ~t~~'T ~~`~~~ ~fi~~ ~ ~ ~~#~ (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, v. JAS COMMUNICATIONS, LLC, Defendant, v. M & T BANK, Garnishee. CIVIL ACTION -LAW No. 10-1902 NOTICE OF ENTRY OF JUDGMENT ON GARNISHEE ADMISSIONS To: M & T BANK, Garnishee Please take notice that a judgment on admissions has been entered against you in the above action arising out of your answers to Interrogatories Directed to Garnishee under Pa.R.Civ.P. 3146(b) on the date listed below. Date: l7 2010 Prothonotary CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe for Entry of Judgment Against Garnishee on Admissions was forwarded by United States Mail, postage prepaid, to counsel of record listed below thig~y of May, 2010: Ms. Cathy S. Fisher Legal Document Analyst M & T Bank P.O. Box #844 Buffalo, New York 14240 M & 'I' Bank 5219 Simpson Ferry Road Mechanicsburg, PA 17050-3515 JAS Communications, LLC 132 Strawberry Square Harrisburg, PA 17101 Attention: Mr. Joe Hathiramani l Moira Cain-Mannix 4 ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED ) CIVIL ACTION -LAW PARTNERSHIP, ) No. 10-1902 Plaintiff, ) ~. ) PRAECIPE FOR ENTRY OF JUDGMENT AGAINST JAS COMMUNICATIONS, LLC, ) GARNISHEE ON ADMISSIONS Defendant, ) ~) ~ Filed on Behalf of the Plaintiff, ~' ~ ) PR Capital City Limited Partnership COMMERCE BANK, ) Counsel of Record for this Party: Garnishee. ) ) Stephen S. Zubrow PA ID No. 43523 ) Moira Cain-Mannix ) Pa. I.D. No. 81131 ) MARCUS & SHAPIIZA LLP ) Firm No. 145 ~ One Oxford Centre, 35~' Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 n ~ , ,~ ~,` ~ - -T _ ~ it __ j• --° ) r ~ t`J ~ ~`~ ) --~.t f ~ ., _.~ i ` " c _ , `- -t'~ ~~ .. - r-.a _ `'-~i G:. ~_. :. ~ ~ ~-~~~ {A0183770.1 } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, v. JAS COMMUNICATIONS, LLC, Defendant, v. COMMERCE BANK, Garnishee. CIVIL ACTION -LAW No. 10-1902 PRAECIPE FOR ENTRY OF JUDGMENT AGAINST GARNISHEE ON ADMISSIONS TO: PROTHONOTARY Pursuant to Pa.R.Civ.P. 3146(b), please enter judgment against Garnishee, Commerce Bank a/k/a Metro Bank, in the amount of $4,973.80 based on the admissions in the answers to interrogatories attached hereto, plus interest and costs to be determined. This garnishment does not exceed the amount of the judgment ($107,520.82) Amount on Writ: $ 4,973.80 Costs: Interest and Costs to be determined Dated: May 2010 Respectfully submitted, Stephen S. Zubrow Pa. I.D. No. 43523 Moira Cain-Mannix Pa. I.D. No. 81131 MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership ~~~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, v. JAS COMMUNICATIONS, LLC. Defendant, CIVIL ACTION -LAW No. 10-1902 v. COMMERCE BANK, Garnishee. INTERROGATORIES INATTACHMENT TO: Commerce Bank, Garnishee YOU ARE REQUIRED TO FILE ANSWERS TO THE FOLLOWING INTERROGATORIES WITHIN TWENTY (20) DAYS AFTER SERVICE UPON YOU. FAILURE TO DO SO MAY RESULT IN JUDGMENT AGAINST YOU: C p ~,~, Mn_2 t- c~.~L 1. At the time you were served or at any subsequent time did you owe the defendant -any money or were you liable to defendant on any negotiable or other written instrument, or did defendant claim that you owed it any money or were liable to it for any reason? Defendant has account 538395450 with a balance of $4973.80 Defendant did not receive $300 exemption. 2. At the time you were served or at any subsequent time was there in your possession, custody or control or in the joint possession, custody or control of yourself and one or more other persons any property of any nature owned solely or in part by the defendant? ,~ C ~' ~.z~_,~ c~ : -'~ ~/ sr~s No ~q~~ ~~ 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in party by the defendant or in which defendant held or claimed any interest? no 4. At the time you were served or at any subsequent time did you hold as fiduciary any property in which the defendant had an interest? no 5. At any time before or after you were served did the defendant transfer or deliver- any property to you or to any person of place pursuant to your direction or consent and if so what was the consideration therefor? no 6. At any time after you were served did you pay, transfer or deliver any money or property to the defendant or to any person or place pursuant to their direction or otherwise discharge any claim of the defendant against you? no 7. At any time before or after you were served did defendant hold any fiords in a bank account at the Commerce Bank, including any bank accounts in Pennsylvania? If yes, please state the amounts presently held in each account, and the amounts held on March 18, 2010 in each account. See answer to question 1 8. If you are a bank or other financial institution, at the time you were served or at any subsequent time did the defendant have funds on deposit in an account in which funds are deposited electronically on a recurring basis and which are identified as being funds that upon deposit are exempt from execution, levy or attachment under Pennsylvania or federal law? If so, identify each account and state the reason for the exemption, the amount being withheld under each exemption and the entity electronically depositing those funds on a recurring basis. No 2 ' ,• 9. If you are a bank or other financial institution, at the time you were served or at any subsequent time did the defendant have funds on deposit in an account in which the funds on deposit, not including any otherwise exempt funds, did not exceed the amount of the general monetary exemption under 42 PaC.S. § 8123? If so, identify each account. no 10. If your answer to any of the above is in the affirmative, please state the amount or value of the property you are holding. Stephen S. Zubrow (Pa. I.D. No. 43523) Moira Cain-Mannix (Pa. ID No. 81131) MARCUS & SHAPIItA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership 3 VERIFICATION The undersigned does hereby verify subject to the penalties of 18 PA. C.S. § 4904 relating to unsworn falsifications to authorities, that he/she is Jennifer Hilbish (Name) Levy Specialist of Metro Bank, garnishee herein, (Title) (Company) that he/she duly authorized to make this verification, and that the facts set forth in the foregoing Answers to Interrogatories are true and correct to the best of his/her knowledge, information and belief. ~. / _ (S ATURE) ,'• ~r .._ «........ ~Q-__.. _. ___._._____......r'1 _ ~ m ~ 'I ~ ~ 4i -D Q p~ C X f~ p ', • 7 ~ ~ ~ i D~ ~ V ~ ~~.. y F•~• ~~{ ~~} i~• ~f ;~ t,~~ M~~ ~::f ~.. :... ~... .'"~~ .:.. :iw. .,~ ~~. m c a z n ~ m ~ N '~ N N -~ A , _a N f' - ~ m w r ~ m 'T'I c cn r -+ m v ~~. Mne oyosl a~~' ~ C V rl 3 ca ~ ~,. \ N D V ..a ~~ ~~ o ~i ^\\ _ m -' O ' O N ~w ~ o~ ~ O ~ ~ N (Q ~ ~ ~ Q~ ~~p„~ f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, v. JAS COMMUNICATIONS, LLC, Defendant, v. COMMERCE BANK, Garnishee. CIVIL ACTION -LAW No. 10-1902 NOTICE OF ENTRY OF JUDGMENT ON GARNISHEE ADMISSIONS To: COMMERCE BANK a/k/a Metro Bank, Garnishee Please take notice that a judgment on admissions has been entered against you in the above action arising out of your answers to Interrogatories Directed to Garnishee under Pa.R.Civ.P. 3146(b) on the date listed below. Date: ~ ~ 7 , 2010 Prothonotary CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe for Entry of Judgment Against Garnishee on Admissions was forwarded by United States Mail, ~/~Y'~-- postage prepaid, to counsel of record listed below this day of May, 2010: Jennifer Hilbish Levy Specialist Metro Bank 3801 Paxton Street Harrisburg, PA 17111 Commerce Bank 4860 Carlisle Pike Mechanicsburg, PA 17050-3026 JAS Communications, LLC 132 Strawberry Square Harrisburg, PA 17101 Attention: Mr. Joe Hathiramani < ~ ~ ` Moira Cain-Mannix ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. JAS COMMUNICATIONS, LLC, Defendant, V. COMMERCE BANK, Garnishee. CIVIL ACTION - LAW No. 10-1902 PRAECIPE TO SATISFY ATTACHMENT AGAINST GARNISHEE COMMERCE BANK A/K/A METRO BANK ONLY Filed on Behalf of the Plaintiff, FR Capitai City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow PAID No. 43523 Moira Cain-Mannix PA ID No. 81131 MARCUS & SHAPIRA LLP Firm No. 145 One Oxford Centre, 35th Fl oor 301 Grant Street Pittsburgh, PA 152 19 (412) 471-3490 C m emu` s ri r- O 7 *8-00 pl??ArN Cif DOD71 Of MgO9 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, CIVIL DIVISION No. 10-1902 V. JAS COMMUNICATIONS, LLC, Defendant, V. COMMERCE BANK, Garnishee. PRAECIPE TO SATISFY ATTACHMENT AGAINST GARNISHEE COMMERCE BANK A/K/A METRO BANK ONLY TO THE PROTHONOTARY: Kindly satisfy the Attachment against Garnishee Commerce Bank a/k/a Metro Bank only Dated: Augusd2010 Respectfully submitted, 7:_1 ?Iw Stephen S. Zubrow Moira Cain-Mannix MARCUS & SHAPIRA LLP 35th Floor, One Oxford Centre 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe to Satisfy Attachment Against Commerce Bank aka Metro Bank Only was served upon the following by United States mail, first class service, postage prepaid, this v 3 day of August, 2010: Jennifer Hilbish Le-=y Spec:-alist Metro Bank 3801 Paxton Street Harrisburg, PA 17111 JAS Communications, LLC 132 Strawberry Square Harrisburg, PA 17101 Attention: Mr. Joe Hathiramani Moira Cain-Mannix IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. JAS COMMUNICATIONS, LLC. Defendant. CIVIL DIVISION No. 10-1902 PRAECIPE FOR WRIT OF EXECUTION To the Prothonotary c ° ~ "U ~ --~ ='r'1 ~ O ~ ' ~ ~ ,? cnr' - -t _.. t7 Qcc~ ~v cn ~o .~ o -a p ~ p~ Z ~ ~ rv ~m ~ -< ~ '-' ~ -ti Kindly issue a Writ of Execution upon a judgment entered by Confession in the above matter. (1) directed to the Sheriff of Cumberland County, Pennsylvania; (2) against JAS Communications, LLC, Defendant, whose last known address is 132 Strawberry Square, Harrisburg, PA 17101; (3) against PNC Bank, Garnishee, with an address of 105 Noble Blvd., Carlisle, PA 17013-4109 (4) and index this writ against JAS Communications, LLC, Defendant, as a lis pendens against the real property of the Defendant. (5) Amount due: $ 106,592.15 Interest from March 18, 2010 at 6%: TOTAL AMOUNT: 50 e+g~ (sa.n,~) a~. so ~~ apt. so Iq. oo .. I~I.oo '~ 8 00 ~~ ~i~a.so - Po a-n-y c~ a7i~ `~--as~4r~a~ ~~~-~ ~ ~a.t~o Due (.o $ 928.67 $ 107,520.82 CERTIFICATION I certify that: a) This praecipe is based upon a judgment entered by confession, and b) Notice has been served pursuant to Rule No. 2958.1 at least thirty (30) days prior to the filing of this praecipe as evidenced by an Affidavit of Service filed of record. Date: October ~?, 2010 Stephen S. Zubrow (Pa. I.D. No. 43523 Moira Cain-Mannix (Pa. I.D. No. 81131) MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership PRAECIPE FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff of Cumberland County, for debt, interest and costs, as above, directing attachment against the above-named garnishees for the following property (if real estate, supply six copies of the description; supply four copies of lengthy personalty list) Any and all of defendants' bank accounts in the possession of PNC Bank, garnishees and all other property of the defendant(s) in the possession, custody or control of the said garnishee(s). I 1 ,~~- \`,% / \, Date: October ~~ 2010 1~~~G1.'~-l~VZVI,~ Stephen S. Zubrow (PA I.D. No. 43523) Moira Cain-Mannix (PA I.D. No. 81131) MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 10-1902 Civil CIVIL ACTION -LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff (s) From JAS COMMUNICATIONS, LLC., 132 Strawberry Square, Harrisburg, PA 17101 (1) You are directed to levy upon the property of the defendant (s)and to sell (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: PNC BANK, 105 Nobel Blvd, Carlisle, PA 17013-4109 and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $106,592.15 Interest from 3/18/10 at 6% -- $928.67 Atty's Comm Atty Paid $112.50 Plaintiff Paid Date: 10/15/10 L.L. Due Prothy $2.00 Other Costs Dav' well, Prothonotary (Seal) REQUESTING PARTY: Name MOIRA CAIN-MANNIX, ESQUIRE Address: MARCUS & SHAPIRA LLP ONE OXFORD CENTRE, 35~ FLOOR 301 GRANT STREET PITTSBURGH, PA 15219 Attorney for: PLAINTIFF By: Deputy Telephone: 412-471-3490 Supreme Court ID No. 81131 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~4~1~1Y' 0'f ~ill)l~Jt~f~~43 Jody S Smith Chief Deputy ~~ ~ ~~ i:~ Richard W Stewart Solicitor ~sFrE~s ~~ ` '' r = ~ ~ra~FF PR Capital City Limited Partnership Case Number vs. JAS Communications, LLC 2010-1902 SHERIFF'S RETURN OF SERVICE 10/28/2010 09:31 AM -Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on Octobe 28, 2010 at 0931 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: JAS Communications, LLC, in the hands, possession, or control of the within named garnishee, PNC Bank, 105 Noble Boulevard, Carlisle, Cumberland County, Pennsylvania17013, by handing to Susan Martinez -Financial Sales Consultant, personally three copies o interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to her. The writ of execution and notice to defendant was mailed on October 29, 2010 to JAS Communications, LLP at 132 Strawberry Square, Harrisburg, PA 17101. October 29, 2010 "~_ ~.- a ' ~r~ v ~ ~ ~a_ _ ;~= W ' f- ... c_.:: ~~ C Y SO ANSWERS, RON R ANDERSON, SHERIFF a is Deputy ;cj Ceun?ySuite Sh2ri'Y, Teeoso`t Inc. 1 _ ?- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, CIVIL ACTION No. 10-1902 Plaintiff, v. JAS COMMUNICATIONS, LLC. PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE AS TO GARNISHEE PNC BANK. ONLY Defendant, V. PNC BANK, Garnishees. c= Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow PA ID No. 43523 Moira Cain-Mannix PA ID No. 81131 MARCUS & SHAPIRA LLP Firm No. 145 One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 a?'1 ep IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. JAS COMMUNICATIONS, LLC. Defendant, V. PNC BAND, Garnishees. CIVIL ACTION No. 10-1902 PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE AS TO GARNISHEE PNC BAND ONLY TO THE PROTHONOTARY: Pursuant to Pa. R. Civ. P. 229, please mark the above action discontinued without prejudice as to Garnishee PNC Bank only. Plaintiff, PR Capital City Limited Partnership, reserves the right to reinstitute garnishment proceedings as necessary to collect on its judgment. Dated: November ?r' 2010 Respectfully submitted, Stephen S. Zubrow Moira Cain-Mannix MARCUS & SHAPIRA LLP 35th Floor, One Oxford Centre 301 Grant Street Pittsburgh, PA 1521,9 (412) 471-3490 Counsel for Plaintiff, PR Capital City. Limited Partnership A - 4W CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe to Discontinue "Without Prejudice as to PNC Bank Only was served upon the following by United States mail, first class service, postage prepaid, this day of November, 2010: Marlene M. Angelo Operations Analyst I/Record Services PNC Bank Firstside Center 500 First Avenue Pittsburgh, PA 15219 JAS Communications, LLC 132 Strawberry Square Harrisburg, PA 17101 Attention: Mr. Joe Hathiramani Moira Cain-Mannix WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 10-1902 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff (s) From JAS COMMUNICATIONS, LLC., 132 Strawberry Square. Harrisburg, PA 17101 (1) You are directed to levy upon the property of the defendant (s)and to sell (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: PNC BANK, 105 Nobel Blvd, Carlisle, PA 17013-4109 and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof, (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $106,592.15 Interest from 3/18/10 at 6% -- $928.67 Atty's Comm % Atty Paid $112.50 Plaintiff Paid Date: 10/15/10 (Seal) L.L. Due Prothy $2.00 Other Costs 2'DZW David. ell, Prothono ary By: Deputy REQUESTING PARTY: Name MOIRA CAIN-MANNIX, ESQUIRE Address: MARCUS & SHAPIRA LLP ONE OXFORD CENTRE, 35TH FLOOR 301 GRANT STREET PITTSBURGH, PA 15219 Attorney for: PLAINTIFF TRUE COPY FROM RECORD In Tistimm wl»rod. 1 horn unto sot wN hand and 110 ass] a oald court at Cw". Pa. Tf,r Telephone: 412-471-3490 Supreme Court ID No. 81131 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff «- Jody S Smith iioll Chief Deputy Richard W Stewart Solicitors ,'Jg PENNS (LVA NH PR Capital City Limited Partnership vs. Case Number JAS Communications, LLC 2010-1902 SHERIFF'S RETURN OF SERVICE 10/28/2010 09:31 ANI - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on Octobe 28, 2010 at 0931 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: JAS Communications, LLC, in the hands, possession, or control of the within named garnishee, PNC Bank, 105 Noble Boulevard, Carlisle, Cumberland County, Pennsylvania17013, by handing to Susan Martinez - Financial Sales Consultant, personally three copies c interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to her. The writ of execution and notice to defendant was mailed on October 29, 2010 to JAS Communications, LLP at 132 Strawberry Square, Harrisburg, PA 17101. 01/24/2012 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states this writ of execution is returned as STAYED per request of plaintiffs attorney. SHERIFF COST: $86.55 SO ANSWERS, January 24, 2012 RON R ANDERSON, SHERIFF 4X 7y 5? - /9 f ;?-7 0/37 cove?a e WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) NO 10-1902 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff (s) From JAS COMMUNICATIONS, LLC, 132 Strawberry Square, Harrisburg, PA 17101 (1) You are directed to levy upon the property of the defendant (s)and to sell (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: M&T BANK, 5219 Simpson Ferry Road, Mechanicsburg, PA 17050-3515 COMMERCE BANK, 4860 Carlisle, Pike, Mechanicsburg, PA 17050-3026 any and all of defendants' bank accounts in the possession of M&T Bank and Commerce Bank, and all other property of the defendants in the possession , custody or control of said garnishees. and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $106,592.15 Interest from 3118110 at 6% -- $928.67 Atty's Comm % Arty Paid 554.50 Plaintiff Paid Date: 5/11/10 L.L. $.50 Due Prothy $2.00 Other Costs David uell, Prothonot (Seal) By: Deputy REQUESTING PARTY: Name MOIRA CAIN-MANNIX, ESQUIRE Address: MARCUS & SHAPIRA LLP ONE OXFORD CENTRE, 35TH FLR 301 GRANT STREET PITTSBURGH, PA 15219 Attorney for: PLAINTIFF TRUE COPY FROM RECORD In Testimony whereof, i here unto set my hand and the seal of said at Carlisle, Pa. This day of , 20 LQ- V- " ` Q Prothonotary Telephone: 412-471-3490 Supreme Court ID No. 81131 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY PR Capital City Limited Partnership vs. JAS Communications, LLC .: A 2 JAS i 25 AM 9; 12 EVMS YU4M1 A Case Number 2010-1902 SHERIFF'S RETURN OF SERVICE 05114/2010 11:27 AM - Ronald E. Hoover, Deputy Sheriff, who being duly sworn according to law, states that on May 14, 2010 at 1126 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: JAS Communications, LLC, in the hands, possession, or control of the within named garnishee, M & T Bank, 5219 Simpson Ferry Road, Mechanicsburg, Cumberland County, Pennsylvania 17055, by handing to Barry Sheller, Bank Manager, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to him. 05/14/2010 12:45 PM - Ronald E. Hoover, Deputy Sheriff, who being duly sworn according to law, states that on May 14, 2010 at 1244 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: JAS Communications, LLC, in the hands, possession, or control of the within named garnishee, Commerce Bank, 4860 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17055, by handing to Kelly marks, Assistant Store Manager, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to her. The writ of execution and notice to defendant was mailed on May 17, 2010 to JAS Communications, LLC, 132 Strawberry Square, Harrisburg, PA 17101. 01/2412012 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states this writ of execution is returned as STAYED per request of plaintiffs attorney. SHERIFF COST: $312.70 January 24, 2012 SO ANSWERS, RON R ANDERSON, SHERIFF 043