Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
10-5680
W W 3 QxNQU 6~ m c~ ~~ V ~~ TABLE OF CONTENTS ARTICLE 1: FUNDAMENTAL LEASE PROVISIONS AND DEFINITIONS ............................:........................:...................3 .Section 1.01 Fundamental Lease Provisions ...............................................................:................... ........................3 :Section 1.02 Definitions ..........................:................................................................:......................... ........................4 .Section 1:03 Exhibits .................................:.........:........................................................,....................: ....................:...5 ARTICLE 2: PREMISES, TENANT'S WORK, AND RELOCATION ...............................:....:.......:............... ........................ S 'Section 2:01 Premises ...............................................................................................:...:....,.,.............. ..:..:...:.............5 :Section 2.02 Delivery of Premises ............................................................... ..:..::...:....:............... ...... :...........5 Section 2:113 .Tenant's Work and tenant's Ptans: ..................................:.....:.....::..... .::..:.. ::: .:.... .:.:..:.....6 Section- 2.04 Mechanic's and Construction Ltens ................................:.....................::...::............:.: ..... ...:....:.:.7 Section 2.05 Opening of Rremises: Failure to Open/Operate.:...:...: ......... .: ..:.... :.:...... .:.: ..:.. ..:..:::...:7 Section 2:08 Reloaationof Premises.........: ................::............................... .....:....:....:.:......... .:.:..::...:7 ARTICLE 3: TERM .............: ....::... ...:.............................:........:........:...........:.. ..:......: ::...... ...:_:..: .,::..:::..:8 Section 3:01 Length. of Term.:....,.: .................:.............................................. .:.,..... ...:..... .:::....: ......::::..8 Section 3.02 Delivery upon Term Expiration...:......:.....: ........................:.... :.. .:..:. :::....:. ...::...: .::..:..:.::8 Section 3.03 Effect of Molding Over .......:..................................................... ..:....:. ...:..... ..::...:: ::.::.:.:...8 ARTICLE 4: RENT. .....:,. .: ...:... ........: .:..:....:.........:..................:. :.::... ...:...:: .::::.... :.:. Section 4:01 Tenant's Agreement To'Pay Rent : : : : ....: .....:::....9 : 9 Section 4.02 .........................................:.:. ::.. .. :. :..,.. .:..:. : . .....,;... Minimum Rent.:. ......... :.....:..: ..................................:........ ...:..:.. ......... ..:::..:. ::......:...9 Section 4:03 Percentage Rent :.:.....: ::.....:.......:.: :......:............. ........ ......:..... ::..'.. ..... ...:.:.: ........9 Section 4:04 Oross Sales...:,.. .....:.:. ......:...:.:..........: ..................::.......: ' :....:....:.:...:: .:. ...:.: .......:.... g Section 4:05 Reporting of Gross Sales; YearEnd Adjustment.,. .:.,:::.. .;:..:... .:..:.:.....:: ...:............:..10 Section 4;Qb -Tenant's RecorBs and Audit..:.:::.. .:: ::.................. ..:::.::. .:..::.:: ..:!:.:.:` .:.. ....................10 Section 4.07 Additional Rent. ....:.:.: ::....:.: .:.................:..: .::....:..... :::.: .:::.:,.: ..:... . ...:..:..........11 Section 4:08 Late/lrtsufftcient Funds Charge.;:, .:...: ................. .:.:::... ......:.: :.::.:..: ':.... :. .......:.........11 Section 4.09 Where Rent Payable and to Whom; No Deductions ...:::::. ..::.:.:: ...: ::.:. :.. ....................:11 Section 4.10 !Security Deposit .....: ::: ........ ..:...................:...:.............:..._...:... ,..:. .......::.... .....................11 ARTICLE 5: REAL ESTATE TAXES AND ASSESSMENTS.....: .:......_ ....::.:. ...: :.:.. ......:..::.:..... .......,.........:...11 5ectlon 5:01 Taxes :.:............................. ..:,:.;. ' ,........................ ::. .........:.................:.:............ ...... _........,11 Sectlan5.02 Tenant's Tax Charge::.:.. ....:.:...:.: .:......................... '..:.....:...,................................ ...... .::..:..:.12 Section. 5.03 Tenant's Additional Tax Obligations: ....................... ..:.........:................................. .....................12 ARTICLE 6: UTILITIES ::.:........:.......... ...:..... ......:.:...:......:... ..:...... ...:,... .:..:..:............:........:.. ....... .:.:.:..12 Section 6.01 '.Services .............. ..:...... .....:,..,......,..................... ..:....:. .....:::........................ .........:...........12 Seaton 6:02 Service Charges............:.. ..:...: .:....:........................ ........:.:..:..:......................., ......:....:,........13 ARTICLE T: USE flF PREINISES .................:.. .:..:.:....,......... .,.:.:.:, ...:..... ....::......:................... ..........._........:13 Section 7:.01 Sole Use attd Trade Name ..:.:.::: ....:...................: :.....:. ::.................:............ ...........:.........13 Section 7.02 Hours .....................:......:.... ...:.: ,.. ....:.................:. :::;..... .....:.............:.......... .....:...............14 SeclLon 7.03 OperetlonalRequirements ...:..:: ............................. :.._..:.:..........:................. ... .:...:........:..:...14 .Section 7.04 I~nlployee'Parking Areas. ' .: ...:............................... ..:.....: ... .......:.............:....... ........:............15 Section i.05 'Signs and Advertising ..... ....::...: ..:.:.... ......::.....::........::.......:..:........................ .:..:: :.....:...15 'Sectlan 7.06 Radlus!Restriction ......:. ...:.:..: ..::::......: ............ ...::.,...........:........:..............., ....................:15 Section 7.07 Compltarlce with Laws; HazaMous Substances..... ..: :::... ....:.:::.....................:. ...... ..:..:...:16 ARTICLE 8: COMMON AREAS AND OPERATING COSTS.::: ... ..:...:.. ..:.,.,.: .....::..:...................... ................:....16 Section 8.01 i,andio-d's Control and Maintenance of Common Areas...:. ...::.:..:.:.: ................. .....................16 Section 11,02 .!Changes by landlord ..............:.:............:.:..: ......... .:.:..... .., ..:.:: :.... ............ ...... .....:..:.17 Sectlon8.03 -Rules and Regulations ................::........:...... .......:. ..:....:. .::....::......:............... .........._:.........17 Section 8.04 Tenant's, !tights and bbligatlonss .::..: .:. ......... :....:.: '.::....::.....:...:............ .....,.....:.........17 Section 8.05 Operating Costs . ......... ...:..... ........ .....: .17 Section $A6 :Tenant's Share of Operating Costs ....:.... .....:... ......... .. .:.:::: _.::.. ............ ..:..........:.,....17 ARTICLE 8: MAINTENANCE ANl) REPAIR; ALTERATIONS .... :..::.... :.:..: ..: ..:.....:....................... ..:....::...........17 Section 9.01 $tructyral Repairs by landlord: .:: ...:.::....:.......:..: ..._.:.:. .......:....................... ...... .......:.17 Section 9.02 Repalt and MMaintenance by Tenant. ...:.a.. .::...:.. ..:...::. ,;:;..:..> ...................... ....: ' ..,,. ..:18 Section 5.03 'Landlord's Right to Access fhe Premises ................ ...:..... ...:.:.....:................... . ..:...:.............18 Section 9.04 No Rent AbatementorDamages... ,,.,,., ,---,.,..18 ARTICLE 10: PROMOTION OF THE SHOPPING CENTER., ...... ......:.. .....::.. ................................ ................:...18 Section -10.01 ! Criarketing Service. Deleted.......... .::..::.. ..:..: ::........:...:.......,..::.....................,-...,. .,,.................18 Section'10.02 'Marketing Service Charge. Deleted .;...::.. ......... .:.......................:................... ..........:......... ]8 ARTICLE 11: 1N5 . URANCE,INDEMNITY, WAIVER OF SUBROGATION:...: ..........................................:.... ....................19 Section 11.0'1 Tenant's Fnsurance ......... _ ....:........................::..... .:._....::.:.. ........................:.. ....: :....::..19 Section 11.02 Landlord's Insurance:.:..: :°:...:: .:............:............:. ;.::.:::.. :.:..:...........:.........:.. :.... :.::. .::19 Section 11.03 Effect on Landlord's Insurance. .....:........................:.. ....:...: .. .....:. ::....: ::......... , ..... ......'.::20 Section 11:04 Indemnfficatfon and Waiver of Claim ....................:..... ,..:...:. :::..:..: .......:;......... ........::..........20 .`Section 11A5 Mutual Waivers,'... ....:...; ' .,.....:............: ..........:..:.... .....:...:............ ........:...:..... ....................21 ARTICLE 12: DAMAGE OR DESTRUCTION, .: ..:.....................:.............. ..:::........,.,........ ,....... :... ....................21 Section 12.01 'Landlord's Duty to Reconstruct fhe Premises ................:.:.................:......:.:..... ....:.. . ...:........._.21 Section 12:02 Tenant's Duty to Reconstruct the Pcemiaes ...............:......: -.....:.., ..:.;...:......... .........:..........21 Section 12.03 Option to Terminate .: ....... .:...:... ..............:..:...... ..:.:..:. :...:.:.. .:.::..::......... ....................21 Sect[on 12:04 Abatement of Rent ....:::.. ..:.::::. ..:::.... ..::...:. .,::.:.: ..::: .:.. .....:... ..:. ....:.........:.::.22 ARTICLE 18: CONDEMNATION .:....:,, ..:.... ........................ .....:..: :...:..:. .:...:.: ...: ..... :.. :::.................22 Section 13.01 Total Condemnation of the Premises .:: ...:...........:.... ...::...:.....:...:.... :::..,::.. ,. ::..:.....:.........22 Section 13.02 Partial Condemnation ofahe Premises ...................... .:.....:: :.::.... :::.._... ... :.,,...__.,,,,,,.-,.22 Section 13.03 Condemnation of the Shopping Center ....... .......:. :....:. ........: ....::::. :::.. .... ........:22 Section 13.04 Damages ........: ....:..: .. .......:......22 ARTICLE 14: FIXTURES AND PERSONAL I~ROPI=R~'1( ....:..:. ..: ..:.:: .:...:... .:::....: ..:...:.. .... ...............:...22 Section 14.01 -improvements to Premises; Removal.: .....:. .:....:.. :.::..... _.:.:.:.: !.....::. ... .:.:.:.....::.......22 Sect[on 14:02 Tenant's Personal Property; Removal.........: ......... .:: ...... ..:...... ...::.::. .._ ...::: .... . ..23 ARTICLE 15: ASSIGNMENT AND SUBLETTING :.: ..........:..:......: .:..:..:. ....::.:. ...:...:. ...,..,.. :.:. . . .::.. ..::..... 23 Section 15.01. Assfgnntent and Subletting ...:..: ...:............ .:...:... .::....:. :.....::: :..:..:.. ... ..:::: :.:..:... 23 Da~enportsitalianOven-CapitelCity-Final. June 17, 2008 '1 TrachtmenlGO 1 Section 15:02 Assignment to Parent, Subsidiary, Affiliated Corporation of Tenant ...........................................24 ARTICLE 16: EVENTS OF DEFAULT AND BANKRUPTCY .............................:...................................................... .........24 Section 16.01 Events of Default .....................................................................:.............................:................... .:.......24 Section 16.02 Landlord's Remedies ................................................................................................................. ........ 25 Section 16.03 Damages ...................................................................................................................................... ........28 Section 16.04 Landlord's Self-Help .......................................................................................................:........... ........27 Section 16.05. Landlord's t)efauk .......................................:.:.....................:............................:....................:.... ........27 Section 18.06 Legal isxpenses .....................................................................:..................................................... ........27 Section 16.07 Landlord's Right to Assume Lease and Purchase Tenant's Leasehold Interests ............... ........27 Section 16.08 Shopping Center Lease. .............. ..........:....:...:.........................................28 Section 16.09 Rejection of the Leasa.:: ....:: .. ......... ........ ..::... ............_. ...28 ARTICLE 17: SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE .. ......... ......... ......;.. . ,.. ,:,,.,,2t3 Section 17.01 Subordination of Lease. .::.:.::. ,.:.:..: . :..................:.... :........ ......... ..:....:. .:.. ..::_:::28 Section 97:02 Tenartt'sAttornment...:.. :: ....... ..........::........................,. ......... ,.:,...:. ......:.. ,,,. ,...:,,28 Section 17.08 instrumerrts to Carry Out intent . :..................................... ......:.: .....:::.' ...:..... .... ::......213 Section 17.Od Estoppel Certificate......:. ....: ..... :............. ,,, 28 Section 17.05 Landlord's Rights of Alienation ... :... ........ ..:....:. : ......:............... .... :.......29 ARTICLE 18: MISCELLANEOUS ................................ .::...:..........:................: .: .. . : 29 Section t8:01 . .... .. ........................ ...: Interpretation . : : ..... .. Section 18,02 ................. ......:. .:.:..... .:.. .:.:............... ,:.: Quiet enjoyment ............ ....:.:.: ....::.................. ..:,.:.., .:...,... ....:..:....:...........: ..: .:..:...29 ..:.....29 Section 48:03. Section 18.04 Notices ......... ......... .... ...:..:.. ... Real Estate Investment Trust : : : : ..:::...29 ' Section 4.8.45 : .,.:,.... .. ........ ......... .... ...! ....:..:. ...~..... .... Reciprocal Easement Agreement ':...::.. ..:. ...:29 29 Section 18.06. Relationship of Parties : :: :; : :: : ,. Section 18.07 . ....: . ..,.,, . ,,....:.. ....... ..... .. .,.:::,:: :.. .::::. . __.. Successors....... ..:.... ..!....30 ...30 Section 18:08 Survival of Obligations.. ....:;: .: ..:.:.... ......... ...:..:.: ........: ....,..':: '..:..... ..:. .6......30 Section. 18.09 Broker's Commission :::. ......... ....:.... .....:.. ......:'.:. ....:;: ....,.,. ...',..:., :... .:.....:30 Section 18.10 InvaAdky; Severabliity._: ...::::.. .::.... .. .:...... ......::. ....:...: ::.:.::,: ...::.... .:. .:.:....30 Section 18.11 Time of the Essence.::.,. :...:: ................. ..:...... ;.,...:,. , .: ;. :: : : :: 30 Sectbn 18.12 . .. .,. , , . .......... ... Applicable Law : : . : : : : : : .... :. Section 18.13 ..:.. ... . .. . : .............. ...:....: ... ..... :...... . ..:. :::. ...:.:... .... Waiver . .....:... .......:.. .....:;,...........:.. ,,...::. :,,:::::. :..,..:... .::.... ` :.,.:,..: .... .:;.:...30 ..!::,..34 Section 18.14 Accord and 5atisfactlon. :........::............ ..:.:..:...:.: .... ............:.. .....:... .:....... .... 1::.....30 Section 18.15 Corporate Tenants .....<.:. ... ..:.:: .............. ..:..::.. .......:............:.. ..:..::.. .::::... :... ........31 Section 18.18 :Recording ..;:.:.:. ..::...;..,,.....:.::. .::..::.. ::.: .::............................... ....:.....::.:..:.:,.:. :...,:31 Section 18.17 .Agent of Landlord; Service Providers...... ..., .......::....................................... ....:.:::: .... .......31 Section 18.16 Finalization of Charges................ ..::..:. . ..: .::.. ..........:............................ ...:..:.......... ..:.,..31 Section 18.19 Financial information., . ............................... :....::.: _:.................................... ...:.............. .... 31 Section 18,20 Tenant's Guarantor. ..............................:..... ' ...::.:.::.......................................... : ... 31 Sectlan 18:21 .......... ............. Notice to Mortgagee; Performance of Landlord's Obligations ....... 31 Section 18.22 ..... .......................................... Unavoidable Delays .::::::............................. :....:..:...................:............................:.................. ....... .......32 Section 18:23 PNor Lease......,. _ .............. .................................................................:. .......32 Section 48.24 Anti-Tercorism'Law.....:.:: ...................... .::...:........:............................................................ .......32 Section 18:25 Waiver of Jury Trial ....:... ::..................... :::...,...::...,......::........,---.:..................................... ..,....33 Section 18:26 Confidentiality.:. ............................ ................................:.......................... . .33 Section 18.28 . ..... Liquor License.. , ..:.....:...:....................... ..................................:.............................. .... ...... .. . 33 Section 18:29 Storage Space ... ..........................................:...................... ............................................... ... . ... :34 Section 18.30 Oii Storage Tanks ..............:..................:...........................:...::............................................ . ..... ... :: . 34 Section 1$.31 . . Asset!Purchase Agreement .........:...........................................:.:...............................:... . ... . : 34 Section 18.32 .. .......... Entire Agreement ........................................:......................................::..........................:... ..... . : 34 Section 18.33 .......... Submission of Leasa to Tenant.....: ..:...............:..................:. :........,.......--...,,.,,,,,,.. ..... . 34 EXHIBIT A: PLAN ,,,., OF THE SHOPPING CENT)=R ................................................ ............................... -,,.,,. 3g ......... fXH1BIT B: UTILITIES ........ ........ ....... ......:.. ....................................: .............................::..... . ....... .. . 37 'EXHIBIT C: HEAT . ING, VENTILATINp, AND AIR CONDITIONiNG ....................::.:.........::...................... . : . .. . 38 . ....... ....... EXHIBIT D: GUARANTEE OF LEASE : : : : ....... . .. .... ........ ... .........,.,..._... .::.,....:........._.:...:................................... .....:.39 Davenports)..taNanOven-Gapital~ky-Final June 17, 2008 l TractHman/GO ,2 THIS LEASE AGREEMENT ("Lease") is made this ,,day of _~ 2008, by end between and PR CAPITAL CITY LIMITED PARTNERSHIP, a Pennsylvania limited partners p ("Landlord")and DAVENPORTS ITALIAN OVEN, INC., a Pennsylvania Corporation ("Tenant ). The Premises is boated In Capital City Mali in Camp Hilt, Pennsylvania ("Shopping Center"}. ARTICLE 1: FUNDAMENTAL LEASE PROVISIONS AND DEFINITIONS Section 1.09 Fundamental Lease Provisions. Certain Fundamental Lease Provisions are presented In this .Section and represent the agreement of Landlord and'fenant, subject to definttbn and elaboration elsewhere to this Lease.. (a) Premises; Unit No. 0800. containing approximately 6,004 square feet of floor area. (b) Rent Term and)~~iration Date: One Hundred Txrenty (12p). months commenting on the Rent Commencement Date. The Rent Term expires on the last day of January immediately following, the one-hundred twentieth (120"') month foAowing, the RantCommenoameM Date (the "Expirattan Date"). (c) ttllibimum Rent: Time Period 9nnual Anwurrt 'Monthly Atnount Rant Commencement Date through he 36"' month $90,000.00 $7,501:83 From rile 37"' month. through the 84"' month $110,000.00 $g,t 74.00 From the 85"' month through the end of the Terrn $120,000.00 $90,008::00 (d) FerceMaae Rent: Time Period Annual freak Point Percentane Rate Rent Commencement Data . through he 36'" month 32,250;000.00 _ Four Percent {496) From the 37m month through the 84'" month 52,750.000.00. !Four Percent (4%) From the 85s" month ahrough the end of the Term $3,000,000.00 Four Percent (4%) {e) Rent Com~ylcAment Dates The earlier of (i} the date on which Tenant initially opens tts business to fhe ..public intha Premises or (ii) October 1, 2008.(the "Required Opening Date'. (f) Marketing Service Champ: WA (g) HYACCharaa'N/A HVAC Eauibmertt Contt'ib~itton Rate: WA Stxinkler~ha-Qe: WA (h) Taxes: For each "Tax Year"{as defined in Section 5.01), Tenant shall Pay to Landlord on acx»unt of Tenant's share of any '"faxes" (as def(rted in 5eation 5.01) an amount sub)ect to adjustments as aet forth in this Lease. t=andlord estimates Tenant's silSre of Taxes for the first Tex Year t0 t7e 31.80 per square foot of C3LA of fhe Premises. (i) Operating Costs N/A (j) Tenant's Securkv Denosft: NfA (k) Trade'Name: Davenport's Italian Oven, Inc. •- (I) Pennitted Use: A sit down ftalian restaurant serving substantially all ftems set forth on the menu attached hereto, (m) Pian Submktal Date:. Apritl@, 2008: (n) :Construction Commencemenf Date: June 2, 2008 (o) 'TenantConstructton Allowance: WA {P) Radius:... O miles (q) Guarantor: :Henryli. Davenpoq RavenportsltalianOven-Capi~ICiCy-Final '' ...June 9Z, 2008 1 Trat:htmanNGp 3 Guarantor's Social Security Number: 334-34-2809 Address: 5220 Simpson Ferry Road Mechanicsburg, PA 17050 (r). Notice Addresses: Landlord: PR CAPITAL CITY LIMITED PARTNERSHIP c% PREIT Services, LLC 200 South Broad Street The Bellevue, Third Floor Philadelphia, PA 19102 Attn: Director, Legal Tenant: (s) +(t) Kell Davenport 5220 Simpson Ferry Road Mechanicsburg, PA 17060 Copy to: PR CAPITAL CITY LIMITED PARTNERSHIP Management Office 3506 Capital City Mall Drive Camp Hill, PA 17011 Attn: General Manager Copy to: Tenant`s Bill[Q4 Address: Henry H. Davenport 5220 Simpson Ferry Road Mechanicsburg, PA 17050 Landlord's Rent Pavmen Atldress: PR Capital City Associates LP P.O. Box 92406 Cleveland, bW 44193 Sec#iotr 1D2 Definitions. "Accounting Period" means the period consisting of twelve (12) consecutive months (except for the first and last Acxx~untirag Period as set forth bebw), commenting on a date sdely determined by Larxtlord from time to time and each sueceading twelve (12) calendar month period during the -Plant Term. 'Until notified by Landlord in writing of a change, Accounttng Period shall be a January 1 through December$1 calendar yearperlod. The first and last Accounting Period of the Rent Tecm shall be prorated, if less than [waive (12) consecutive calendar months: `"Additional Remf" has the meaning set forth in Section 4.07. "Agent" has the meaning set forthtn Section #8.1.7. "Marketing Serv[ce,Charge" fins the meaning set forth in Section 10.02. "common Areas" means ail areas, facilities and improvements operated or provided at or in connection with the Stropping Center from tune to time for tha nctn-exWustve common use of Landlord, Tenant, and the other :tenants and occupants of the Shopping Center and their employees, agents, subtenants, concessionaires, Ik~nsees, customers and other invitees as -designated, made available or mafntained by Landlord In or near the Shopping Center including, but npt limited to, parking areas, parking tacNlties; approaches;: trafitc oorttrols and signs, roadways, sidewalks, open and cbsed pedestr[an walkways, Curbs, storm drainage faclitles, retaining walls, :driveways, publ~ transportation loading areas; d~ivery areas and loading platforms, Parcel pickup stations,. ramps, tunnels, canopies, landscaped areas, community rooms and.. auditoriums, offices, eleYators, escalators, exits„ entrances, roofs, beams, public restrooms, first-aid and comfort stations, lounges and shelters, sprinkler mains, fight fadNties and skylights, telecom facilities, •uttltty lines, utility rooms, sanitary systems, water fNtratlon andkutreatmemt facilities, service areas, fire exits, coMdors, and malts. "Excluded /lreas" means potions of the Shopping Center desigr~ted as a department store or major tenant or by a trade name on Bxhibit A attached hereto or used for or for use inconnection with the operation of a department stone (whetlier occupied or vacant); premises of at least 15,000 square feet of GLA teased to or ocxnrpied by a single tenarrt; all office space including mall management office space; aN basement space; .all storage spaces; aq out parcels and pact sites; premises without an interior entrance to the mall; all kiosks, retail merd~andising units or other temporary occupants under an agreement for a term of one (1) year or less; and all buildings shown on Exhibit A which are labeled as "Excluded Area". "Food .Court" means the area or areas now or in the future, if any, specifically designated by Landlord for small restaun3nt or other food service operations situated in .the :Shopping center, including the individual premises and any seating areas located therein and the maintenance and housekeeping areas primarily serving the Food Court. The tern "Food court" includes the same as reduced, expanded ar otherwise altered from time to time. [If Food Court tenant, attach Food Court exhibttJ "Governmental Requirements" has the meaning. set forth in Section 7.07. "GLA" means the square feet of floor area in fully entiosed buildings which are erected on portions of the Shopping Center (other than F_xduded 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 shag be measured from the exterior face of exterior walls and the exterior face of service corridor walls, the tine along the front of the Premises where the Premises abuts the enclosed mall (which is commonly known as the "Lease L1ne") and the center tine of any wall Tenant shares with other tenants or occupants. With respect to all leasable areas other than Tenant's Premises, the measurement of DavenportsltalianOven-CapitalCity-Final June 17, 200t3 1 Trachtman/G0 4 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 constructbn or equipment. "Gross Sales" has the meaning set forth in Section 4.04. "Lease" means the. Fundamental Lease Provisions, the Lease Agreement, and the Exhibits attached hereto. "Lease Year" means the twelve {12) full calendar months of the Term commencing w8h the January 1'r immediately fdlowing the Rent Commencement Date and ending December 31'~ of such calendar year and each succeeding .twelve {12) month period; provided, however, that the first Lease Year shall comment:e on the Rent Commeecement Date and terminate orrthe immediately following thirty first (31") day of December in fife Term and the last tease Year shall terminate on the last day of the Term. "Partial Lease Year" means that portion of-the Lease Tenn .prior to the'first full Lease Year or fotlowing 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 Rertit" !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 5eciion 1:01{d): "#tent" has the meaning set forth fn Sectbn 4.01. "Rent Term" has the meaning set forth'in Section 3.01. "Shopping Center" means the land. and improvements shown. on Extrlbtt A attached hereto, as the same- may herea@er be reduced, expanded or ofhetwise altered from time to time. The:purpcae of the plan attached 'her®tp as Exhlb[t A is solely to show the approximake tocatlon 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 conflguratfon 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 ta or substitute for land of the Shopping Center or any part thereof, or eliminate, add, relooate or substltute any Srtprovements, or ohar~ge, enlarge or consent to a change in khe shape, size, location, number, height, or extent of the improvements to the Shopping Canter ar any part lfiereof ',including, without lirr>katibn, adding additional levels to any existing buildings therein, and altering buildings, parking areas, and other Common Areas. "'faxes" has the' meaning set forth In Section 5.01. "TaxYear" has the meaning set forth In Section 5.01, "Tenant's Work" has the meaning setforth in Section 2.03. "Term" fias the meaning set forth in Section 3.01. Section 1.03 Exhibits. The following plans and special provisions are attached hereto as Fxttibits, are incorporated. herein and are hereby made apart of this Lease. Exhlbk 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 UtilityGonsumption and Payment Exhibit. Exhibit C Tenant Heating, Ventilating. and Afr Conditioning Exhibit. Exhibit l3 Guarantee of Lease {the "Guarantee"), if applicable. Exhibit E Tenant's Menu ARTICLE 2: PREMISES, TENANTS WORK, AND:RELOCATIbN Section 2:01 re Ises. - Landlord hereby demises and leases: to Tenant and Tertant hereby rants from Landlord those certain Premises now existing w hereafter to be erected in the: Shopping Center as Shown on Exhibit A attached fiereta: 'the Premises (s 'llmNed vertically to the ceiling height above the atructuret floor. In'the event-the Premises is a corner location, the Premises shall exclude any rights with respect to the exterior of the extenw side waN of the Premises. Landlord shelf h8vethe exGusiue right to use the exterior face of the exterii~r Wails of-the Premises and tl~e roof of the Shopping Center, uiiles5 otherwise granted ko Tenan# in rvriting~ Landlord reserves the right to tnstaU, :maintain, use, repair, and replace :pipes, ductwork, cables,.. conduits, plumbing, ver-ts, utility lines and Wires in, through, atx>ve and t~elow the Premises, in the column space, and in and under the floor slab, except ihat Landlord :shall -not materially adversely interfere with Tenant's business operations within the Premises. Except where. necessary, as determined by Landlord's arctiite~, no pipes, `conduits, utility lines, or wires instailed by Landlord shall be exposed in the-sates area of the Premises. :Section 2:02 Delivery of )'remises: l7avenportsltaUanOVen-CaptalCity-Final June 17,'2008 '1 TrachtmanlGO 5 (a) ~. 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 rums 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) Notlces of Availability and Possession. The Premises shall be considered available to Tenant when Tarrant receivesiandlord's written notice of availability of the Premises ("Notice of Availability"). Upon Tenant's receipt of the Notice of Availability Tenant shall have only limited access to the Premises for purposes of inspection and space verification. The Notice of AvaNabNity shall not constitute delivery of the Premises and Landlord shall. retakr possession of the Premixes until the earlier of the. date Landlord delivers possesson to Tenant by a notice of possession ("Notice of Possession") or upon the Construction Commencement Date, at which time Tenant shall have access to the Premises for all purposes set forttr in this Lease. In the event Landlord has delivered a Notice of Availability to Tenant taut has not approved Tenant's. Plans, delivery of possession of the Premises to Tenant shall not occur until Landlord has delivered to Tenant a Notice of Possession. (c} jay. 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 Camrnencement Date and the Required Opening bate specifed herein for a period equal to the Number of days between the Construction Commencement Dats and the-date the former occupant vacates; provided that if physical possession of the Premises: not available ray 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 shaN'be null and void and neither party shall have any liabNlty hereunder to the other. Furthermore, Tenant releases Landkxd and Landlord's contractors from: any claim for damages against Landlord or Landlord's contractors for any delay Irr the date an which the Premises. shall be ready for de~very to Tenant. Section 2.03 Tenant's tiVork and Tenant's'Pians: ' (a) Tenant's Work. Tenant shall perform all work regaired to remodel the Premises fully and completely and to adapt. the same for the Permitted Use (herein called "TenanNs Work"). Tenant shall commence Tenant's Work on or before the Construction Commencement Date. Tenant shalt des~n the Premises and Tenant's Plans in accordance wHh Landlord's .current store design criteria booklet (herein called "T"enant Design Criteria j, a copy of which :Tenant acknowledges it has received, and comply with aN requirements set forth therein. M the event of any inconsistencies between the text of this Lease and the Tenant;Design Criteria,ahe Tenant Design Criteria hall prevail. Tenant's Work shall. be performed (i) in accordance with ap necessary governmental approvals .and permits, which Tenant shall obtain at its sole expense; (if) in accordance with Landlord's Tenant Design Criteria. and all applicable Governmental Requirements (as deflned 1n Seetlon 7:07), (Hi) without Interfering with the use; occupancy or enjoyment of any part of the Shopping Center, (iv) witMOut obstructing access to the premises of any other occupant of the Shopping Center or obstructing Common AreBS, and (v) in a good and workmaMike manner and dNigently prosecuted to completion. Tenant shall repair aN kerns damaged as a result of the performance of Tenant's Work promptly upon the occurrence of such damage and shah at all: times keep all poitfohs 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 pertormed by Tenant without Landlord's, consent shah be returned tb its original. condition. at Tenant's expense upon Landlord's request. (b) Tenant's Plans, On or before the Plan 'Submittal Date, Tenant shall submtt to Landlord's tenant coordinator {herein called "Tenant Coordinator") for Landlord's approval, plans {herein calved "Plans") specifying each aspect of Tenant's Work, including the foNowing items; (i) a colored rendering of the .proposed storefront and signs, including an Interhally-illuminated, indtvidualiy lettered Sign (or other type of sign as specified by Landlord) above the storefront and professionally lettered Trade Name signsfior Tenant's service doors, and sign shop drawings, (li) sample materials to i>e used in the Premises and signs, (iii), photographs of fixtures to tae used, (iv) the'floor,plan and furniture plan of the Premises, and (v) mechanical, plumbing, sprinidder, and electrioai drawings. Tenant shah prepare its Plans in accordance with the Tenant Design Criteria and in conipUance 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, Lanford shall return the Plans to Tenant marked "approved," "approved as noted," or "not approved". K marked "not approved", Landlord shall note the reasons for disapproval. On or laefore-ten (10),days after Tenant's receipt of the "not approved" Plans, Tenant shall resubmit to Tenant Coordinator revised Plans addressing the objections. Landlord shah return the Plans to Tenant marked as set foctfi'~bove:and Tenanf Shall, within an addffionaf ten (1D) day period, resutxnit revised Plans until the same have been "approved as noted" or "approved". If Landlord acx;epts Tenant's'Plans as "approved":or "approved as noted"; Tenant need :not resubmit the Plans, but Tenant shall revise such Plans to incorporate Landlord's required changes and Tenant covenants that Tenants Work shall camplywtth the notes disclosed on such "approved as noted" Plans. (c) Plan Review Fee. Deleted. (d) Ir~surencefl3uildina Permit. On or before the Construction Commencement Date, Tenant shalt deposit with Landlord certificates of insurence as required in Article 11 and the Tenant Design Criteria, as well as a copy of Tenant's building permit. Tenant shalt be responsitale for any damage resuking front Tenants Work, Including damages to the Shopping Center, the .Premises, and -the premises of other tenants. Landlord shah not be required to insure, .reconstruct, or reinstall any of Tenants Work. (e): Mandator4'Remodel. Deleted. (f) A~ iterations by Tenant Tenant shalt not perform any construction or make any' alteraftons (including painting, decorating, changing the architectural treatments, fixtures, decor, or appearance of any part of the Premises; penetration ttrrough any roof, flow or.extertor or corridor wall} in onto any part of the Premisesat any time wl~out flrsY obtaining Landlord's. written .approval. and wNF remove promptly, upon Landlord's request, arty such alterations made without landlord's written approval. Tenant shall not, without having obtained Landlord's :prior wrtten consent, pertorm OavenpoirLgltalianOvers-CapitalCity:Final June 17, 2~t58 1 TrachtmanlGO g : any work whatsoever to the roof, exterior walls, and structural portions of the Premises or Shopping Center, or to areas reserved to Landlord or excluded from Tenant in the Tenant Design Criteria or Shopping Center regulations. Any damage to the Premises or to any person or property occurring as a result of a breach of this provision shall be the sole responsibility, cost, and expense of Tenant. Notwithstanding the foregoing, Tenant shall be permitted to make nonstructural alterations to the interior of the Premises, which alterations comply with Landlord's then current Tenant Design Criteria, not to exceed Ten Thousand Dollars (310,1)00.00) during any twelve (12) month period without Landlord's written approval, but with at least ten (10) days written notice to Landlord. Furthermore, Tenant shall make, at Tenant's-own cost and expense, all additions and alterations to the Premises ordered or required by any Governmental Requirements, whether in order to meet the special needs of Tenant, or by reason of-the occupancy of Tenant or Tenant's. Permuted lJse, or otherwise; provided, however, Tenant shall not be required to metre structural alterations to the Premises or the buNding in which the Premises is located unless mad® necessary by reason of the nature of Tenant's business; or the manner of dperetion thereof, or work performed in the Premises by orvn behalf of Tenant. (g) The provisions of this Article 2 shalt apply with respect to Tenant's Work, any remodel or auerations, or any otherworlc performed by Tenant in or about the Premises at any time during the Term. Section 2:04 Mechanic's and Construction Liens. {aj Generally. Tenant shall not permit; end in no 8vent shell Landlord yr Landlord's interest in the Premises andlor the Shopping Center be liable for or subject to any mechanic's, matertalman's, :taborets, 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 behaff of Tenant ("Ltenable Work") at any time during the. Term. (b) Prior Waiver of Lien. Tc the extent permitted under applicable law, Tenant, for itself and all those parties providing Lienabfe Work, hereby waives the right tv hold, claim; assert, fife or enforce any Lien whatsoever against the Premises andlor the Shopping Center. Prior to the commencement of any Lienable Work(inoluding delivery of:materials); Tenant shall cause us general contractor (and any stbcontractors and sub-sutxrontractors, if landlord so requests) to execute and file in the Cferk's or Prothonotary's Office for. the County In which the Shopping Center is located a waiver of the right to file mechanic+s liens againsf the Premises and the Shopping Center in a legally enforceable form approved by Landlord (:"Waiver of Llens~. The Waiver of Liens shag provide, to the extend permitted under applicable law; that the general contractor for useff and alt of its subcontractors, sub-subcontractors; materta{men, and suppliers weaves any and all lien rights that it may have :against Landlord's estate, righl, title and interest in any part of the Premises andlor Shopping Center: (c) Postino of ' -Resnonsibiluv: Landlord shall have the right to poet or keep posted at or near the Premises notices of'rion-responsibility for any constructon, alteration, or repair of the Premises by Tenant. {d) Disct~ar9e or Sattsiaction of Llen. 1n'the event a Lienis made orfifed, Tenant sFtall',causethe Liento be satisfied or discharged of record, :whether by bond or otherwise, within fifteen (}5) days after written request by Landlord,. Yf Tenant. shalt fall to cause such lien or claim of lien to be satisfied a discharged within the period:aforesaid,. such failure shaH'be deemed an Cweni of Default and, in addition to any other rights or remedies Landlord may have underthis Lease,'- ; i~ndbrd may, but shalt not be obligated to, satisfy or discharge the Lfen either bypaying the amount claimed to be'due or by procuring the satisfaction or discharge. of the Lien or daim of Lien by,paymertt, deposit; or bonding proceedings and, in any such event, Landlord shall be entitled (if permitted by applicable state law) to compel the prosecution of any action for the foreclosure of the Li®n or claim of Lien by the lienor with interest, costs and expenses:' AN costs,and expenses incurred (including, but not ttmued to, reasonable attorneys' fees) andlor amounts paid by Landlord in eonneation 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 #rom he respeotfve dates of Landlord's making. the payment and/or incurring the cost and expense, shall constitute Add;tianai Rent payabie'by Tenant tv Landlord on demand. :Section 2.05 'Opening of Premises; Failure to:Ogen/Operate, (a) Oaenina of Rremi~gs. 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 public in the Prerrrises no later than the.. Required Opening Date (asspecffied in the Fundamental Lease Provisions). (b) Failure to OoenlQperate. If Tenant fails to open its business to the public fn the:Premises on or before tfie Required Opening Date, or fails to continuously operate its business in accordance wuh the #erms of this Lease, or :.vacates the Premises priorto the expiration of the Terrn, Landlord will'suffer damages in an amountwhich are not readily ascertainable and in any such event, Landlord shall. have the right to collect {as Hquidated damages and riot as a penaity) one-thirtieth (1f30~') of an amount equal to the monthly inafaiiment of Minimum Renf for each day tfrat Tenant fails to operate, in adduon to all other Rent and charges wMoh are :due hereunder. Any and all sums payable by Tenant to Landlord pursuantto the immediately preceding sentence shall. be paid on demand and- shah in no way relieve Tenant from any of its obligatton3 under this .Lease, including ittie obligation to open. and operate ks bus)ness in the Premises, and Landlord shall have ail other rights and remedies under this Lease, at law and in equity, arising from Tenant's failure to .open and operate pursuant to this Section: Section 3.06 Relocat`<on of Premises. (a) ~iaht to Relocate, Motwithstanding anything to the contrary contained in flits Lease, to cxar-neaion with any expansion, renovation, re-merchandising, rearrangement or change in size or configuration of any part of the 3hbpping Center, Landlord shall have the right on one or more otxasions to require Tenant to relocate from the Premises to a location designated by Landlord {"Relocated prerriisas"), whit:h shall contaM approximately the same number. of square feet as the Premises. Larxlford shall advise-Tenant in wrJting ("Relocation Notice") as to the:-location of file _. Relocated Premises and :the date by which Landlord will regUlre Tenant to contplete:such relocation. Within thirty (30) days of Tenant's receipt of Landlord's Relocation Notice, Tenant shaA advise: Landlord fi writirrg whether Tenant agrees to Davenperf3ltalianOven-CapitalCfty-Final June 1i, 200a \ Tradrtman/GO 7 relocate to the Relocated Premises in accordance with the provisions of this Section. (b) F~oht to Cancel. In the event Tenant fails to notify Landlord that Tenant will or will not relocate within the aforesaid time frame or Tenant refuses to relocate, then, at any time thereafter, Landlord may cancel this Lease upon sixty (60) days prior written notice to Tenant ("Cancellation Notice"), in which event this Lease will expire on such date as set forth in the Cancellation Notice ("Cancellation bate") as though the Cancellation Oate was fixed as the expiration date of this Lease. Tenant shall vacate the Premises and surrender possession to Landlord on or before the Cancellation Oate in accordance with the terms of this Lease, and Landlord shall have no liability to Tenant as a result of such cancellation, except as sal forth in this Section. If Landlord sends the Cancellation Note 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 Rased on straighMine depreciation over the Rent Term ("tJnamortized NeC Cost"). Tenant shall deliver to Landlord reasonably detailed evidence substantiating the Unamortized Net Cost and, upon :Landlord's request, any additional informaSon as Landlord may reasonably require in connection with he determination of the Unamortized tJet Costs. Landlord will pay to Tenant the Wnamortized 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, ff .andlord requests such information, so long as Landlorcl 1s in agreement with Tenant with regard to the amount of such payment. (e) $~Nd-out- of Relocated Premises: 'If Tenant. agrees to relocate pursuant to the Relocation Notice, landlord shall pay the cost of (j prepartng the Rekcated Premises so that ttte same will be reasonably comparable in leasehold improyetnents artd finish to the Premises as ff existed immediately prierto Tenant's vacating the same; and (ii) moving and ceinstailing Tenant's trade fixtures, equipment; and storefront sign. Tenant. shall be responsible for moving its inventory. (d) Tsmoorarv or PartialcRelor t.~ion, in the event Tenant is required io relocate temporarily (i.e., for no more than eight months), tenant shall accept the Relocated Premises 'as is' and Landlord shall not be required to perform any work therein. In addition, LandloM wilt reimburse Tenant for fts reasonable and substantiated expenses- incurred in moving from the Premises to the Relocated Premises (and returning to the origitiai Premises, ff applicable) which reimbursement shall be made within forty-five (45} days fogowing Tenant's submission of fts documented expenses. In the event Tenant is required to surrender only a portion of the Premises to Landbrd, but is able to operate in the remainder of the Prem ses; Rent.-shall abate on a proportionate -basis from ':the date. Tenant surrenders to Landlord possession of the affectedportion of the Premises. {e) 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'•Mihimum Rent and Percentage Rent. Break Point shalt be amended automatically to bear theisame'telationship to the:Minimum Rant and Percentage Rent Break Point presently _. set forth in this Lease as the existing-.area of the Premises bears to the area of the Relocated Premises. (f) Remedv: Tenant agrees ttrat-the execution of the lease amendment or its receiptof the Unamortized-Net Cost payment shall txe Tenant's sole remedy in the event Tenant is required to surrender possession of the Premises as provided inthis Section. - ARTICLE 3; TERM Section 3:01 Length +q~?8rm. The. tenn of this tease (sometimes herein called the 'Term") means the period: of the "Interim Tent" followed immediately by the period of the "Rent Term:" The 'Interim Term" means the period commencing on he date of this.' Lease. and ending on the date immediately preceding the Rent Commencement bate. The "Rent Term" means the period commenting on the Rent Commencement Date and ending on the Expiation 'bate (both as defiged to 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 oase maybe: H not soonerterminated as herein provided, this Lease shall terminate on the Expiration Date. without the necessity of not~ce'fram Landlord or Tenant. Entry by Tenant to the Premises prior to the Rent Commencement Date shall txe subject to all of the provisions ofthis Lease other than the duty to pay Rent, except that Tenant shall pay for all utilities and ervices supplied to it during such period. Section 3.92 Deltverv uacn Term Expiration. .Tenant shall deliver up-and surrenderto Landlord possession of the Premises upon the Expiration Y7ate or earlier termination of Ehe Term, broom .clean, free df :debris, in good. order, condition. and state of repair, and in compiiance with Article 14 (excep3ing Landlord's obligations under. this Lease, damage isy casualty, and ordinary wear and .tear): Furthermore, Tenant shag deliver the: keys to the Premises to the Shopping Center management office of to such othe- place as Landlord may designate and shall notify Landlord in wNUng of all-combinations of locks, safes and vaults in the Premises.: t3ection 3:A~3 Effect of tioltlina Over. (a) Holdover. # Tenant or any party claiming under Tenant remains in :possession of the Premises or any part thereof after the Expiration Date or earlier termination of this Lease (a "holdover"), rto tenancy or interest in the Premises shall result therefrom, such holdover shall 'be an unlawful detainee, :and all such parties shall :bB 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 Rkts double the Minimum. Rent for such holdover period; and Tenant shall indemnify and ftofd harmless Landlord: from all loss; cost, expense and liab~ity whatsoever resulting from such holdover Including any claims made by any succeeding: tenant due. in whale or in part to Tenant`s !holdover. oavenportaitalianOver--~pitatCiiy-Final June 17, 2008 1 'TrachtmaNC3O 8 (b) Good Faith Neootiations. Notwithstanding the foregoing, in the event Landlord and Tenant are conducting good faith negotiations to extend the Term or to enter into a new lease for the Premises, Tenant shall continue making ail payments at one hundred percent (100%) of the Bent (including Additional Rent) payable as of the fast month of the Term. Upon execution of an agreement to extend the Term or upon the executron of a new lease for the Premises, Tenant shat{ 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 ttte event Landlord in Landlord's sole discretion decides not to renew the Term, and ff upon ten (10) days notice from Landlord, Tenant (or any party claiming under Tenant) refuses to surrender the Premises to Landlord, Landlord shall have the option to charge Tenant the liquidated rent set forth in paragraph (a) above from the expiration of such ten (10) day notice untU such time as Landlord obtains possession of the Premises from Tenant. ARTICLE 4: RENT Section 4.01 ,T~nan~ Agreement To Pav Rent. -For the tight of use and occupancy of the Premises during the Rent Tenn, Tenant hereby agrees to pay Minimum Rent, Percentage Rent, and Additional Rent (collectively referred to herein as "Rent") at the times and in the manner provided in'this Lease. All Rent shalt be paid in Untted States currency and shall, N 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 wittwut prejudice to any rights or remedies which Landlord may have against Tenant. Any endorsement or statement on any check accepted by Landlord or any statement in correspondence acx:ompanying such check that acx~ptanr~ of such lesser amount is payment fr- full shall be given no effect. Section 4.03 MinimumRent. (8) Minimum R®nt. Tenant shall pay to Landlord a guaranteed annual minimum rent (`Minimum Rent") as set forth in the Fundamentai Lease Provisions, which shall be due and payable in twelve (f 2) equal monthly installments, In advance, on the rust day of eatsh calendar month of the Rent Term at Landlord's Rent Payment Address. Tenant shall pay the first installment on the Rent Commencement Date whether or not such date is the tkst day of a calendar month. {b} Pr ra o . In the event that the Rent Commencement Daie shall be a day other than the first:day of a calendar month, Tenant's first payment of Minimum Rent shall be prorated for the fractional month between ttte Rent Commencement Date and the first day of the first futl calendar month in the Rent Term, on a per diem ~sfs (ceiculated on: the ectual number of days in the month), and Tenant shall pay such amount in advance on the Rent Commencement Date. 1f the Minimum Rent increases during the Rent Term, for the purpose of determining fhe date on which Minimum Rent increase(s) trecome effective, a partiai month shall be disregarded. (c) Exoan ion-Irtg{ease. Deleted. {ci) location to Mark llg Service. At Landlord's discretion, Landlord may allocate a portion of Tshanf s Minimum Rent to fund the Marketing: Service (as described in Article 10) which may be in operatbn at the Shopping. Center, regardless of whether Tenant pays a Marketing Service Charge, at no increase in Minimum Rent to Tenant. Section d:03 Per>3e~r fade 12ent. . (a) Percentage RentRent In addition io Minimum Rent, during the Rent Term, Tenant snail pay to Landlord percentage rent ("Percentage Rehf"} as determined try this Article 4. Perc~n#age Renf for each Lease Year shall be an amount equal to the Percentage Rate (set forth in the Fundamental Lease: Provisbns} multiplied t>y ttie amount of Gross Sates made during such Lease Year in excess of the applicable Break -Point (set forth in the Fundamental Lease- -Provisions}. Each payment of Peroentage .Rant shall ire paid by Tenant to Landlord at the times set forth herein, at the place then fixed for the payment of Mintmurn Rent, together with Tenant's Monthly Report of Gross Sales (as defined below)..- (b), Proration: In the euent,that the first or last Lease Year shall consist of fewer than twelve (T2}full calendar months or if during a oerteln Lease Year or Partial Lease Year Minimum Rent has been wholly abated for a period oftime, then the applfoabie Break. Point sef forth to the Fundamental Lease Provisions shall be multiplied by a fraction, the numerator of which-is the number of days in such Partial Lease Year for which the Minimum Rent was payable and the denominator of which is three hundred sixty-five {365). In the event the Minimum Rent strati be partiatiy abated{rather then wholly abated) for a period of time in any Lease Year or Partial Lease Year, the Break Point shall be reduced proportionately. (c} a e to each Lease Year or Partial Lease Year, as the case may be, Tenant shall be obligated to pay Percentage Rent ontenth (10"'} day of the month immediately following the month during whk:h Tenant's Gloss 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) f'ercantasre ggrr Ar~,justment. In the event the Break Point is subject to adjustment during the Term and the date on which any such adjustment is to occur (hereafter referred to as the "Rental Adjustment Bate") is other than the first day of a Lease Year, the Break Point for the Lease Year in which the Rental Adjustment Date shall fah shall be the sum of: {t) the initial Break Point multiplied by a fractkrn the numerator of which shall be the number of days in the period commencing on the .first day of the Lease Year in which the Rental Adjustment Date shall fall and ertdtng on the day immediately prior to the'Rental Adjustment Date and the denominator of which shall be three hundred sixty~ve (3{35), plus (ii) the later freak Point multiplied by a fraction, the numerator of which shall be the number of days in the period commencing on the Rental Adjustment Date and ending on the last day of the Lease Year in which the Rental Adjustment Date snail fall and the denominator of which shah be three hundred sixty-five (365). Section 4.04 Gross Sales. DavenportslteiianOven-CaWtaiCity-Final June 17, 200ti ~ Trachtman/GO (a) Definition of Gross Sales. The term "Gross Sales" means the amount of the sales price of all merchandise, wares and other goods sold (including gift and merchandise certiticateslcards when redeemed), leased, rented or licensed, and the actual charges for all services performed, business conducted by Tenant and by any subtenant, licensee, concessionaire and other occupant in, at, from, or arising out of the use of the Premises., whether wholesale or retail, whether for cash or credit, or otherwise, and including the value of ail consideration other than money received for any of the foregoing, without reserve or deduction for inabHity or failure to collect, including but not limited to '.safes„ [eases and services: (i) where the oMers originate in, at, from or arise out of the use of the Premises, whether delivery or performance is:made from the Premises or elsewhere; or {fi) made or performed by mail, telephone, Internet, telecopy, fax, webstte or similar means and .orders received; fHled or delivered in, at or from the Premises; or (iii) made or performed by means of telephonic, mechanical or other vending means or devices in or for the Premises; er (iv) which Tenant, and any subtenant, licenses, concessionaire or .other occupant, In the normal. and custbm2ry course of its. business, would or does credit or attribute to its operations at the Premises or any part thereof. Gross Sales shelf Mictude any deposit accepted and .retained by Tenant. Each installment or credk sate shag be treated as a sale for the full price in'the month during which such sate is made, regardless of whether or when Tenant receives payment. tVo franchise, value added tax, capital stock tax, tsx based upon assets or net worth or gross receipt tax, .and no ineorne:or similar tax based on income or profits shall be deducted from Gross Sates. (b) s Sales ExGusions. Only the following shall be excluded from Gross Sales, provided that Tenant .supplies records to Landlord, in form and substance reasonabiy acceptable to Landlord, which adequately support such exdusions (fj exchanges of merchandise between Tenants stores made solely for the convenienYoperation of Tenant's business and not to'consummate a sate made in, at or rpm the Prem~es; (ii) returns to suppliers; shippers or:manufacturers; (fit) cash or credkrefunds to customers on transactions otherwise included in Gross Sales; {iv) sales of fixtures, machinery-and equipment, which are not stock for sale or trade, after use in the conduct of Tenants basin. ess in the Premises; (v) amounts separately stated in the sales receipt and cx~llected from customers which are paid by Tenant to any government for any sales ar excise tax imposed bylaw at the point. of sale; {vi} sales to employees at a discount, not to exceed one percent (19'x) of annual Gross Sates; and (vii) cash-from permitted pay telephones and vending machines not located in the sales :area and primarily for use by Tanent's empbyees. Section 4.U5 Reportina!of Gross Sales: Year End Adlustment. (a) Monthly Resort. Tenant shall furnish to Landbrd wkhin ten (10) days after-the end of each calendar monfh during the Rent Term.a carnptete statement. (the "Monthly Report"), certrYled by Tenant. (or a responsible financial officer of Tenant if Tenant is a c>orporation), setting forth (i) the amount of iitoss 'Safes during such month, {ii) the aggregate amount. of Gross Sales during such-Lease Year (or 'Partial Lease Year; as the case may be), including such month, (ilf) the amount, if any, by which such aggregate amount of-Gross Safes exceeds the Break Point, .and (iv) the .amount of Percentage Rent. paid by Tenant to tarxilord for such'Lease Year (or Partial Lease Year, as the case may tie). ff the Rent Commencement Date shall not tie .the fast day of a calendar month, the .period between the Rent Commencement Date and-the first flay of the first fulLcalendar month in the Rent Term and Tenant's Gross'Sales during such period shall be added to the first calendar month for both the purpose of the computation of Percentage Rent and the purpose of reporting of Gross Sates. (b) Yearly Report. Tenant wilt also famish to Landlord. within sixty (t30) -days after the end of each Lease Year a complete statement {the "Y$ady :Report"} .certkied as a full; complete; aril accurate report by Tenant's chief financial officer; showing in reasonable detail the amount of Gross Sales during such Lease Year and the amount of Percentage Rent .paid to.Landiord for such Leas® Year. Tenant shall npt be permitted to modify the Yearly Report once .furnished to Landlord. (c) Delivery of Repents. The reports required by this '.Section shall be delivered to Landlord's Notice Addresses or to another person andlor place as Latidlord may designate from time to time. if Tenant shat! tad to deliver any Monthly Report andlor Yearly Report when due; lrraddttion to all pf.Landlord's other rights and remaclies hereunder, Tenant shalt pay to Landlord, as Addttional Rent, an amount-squat to One Fiundred'Dollars (x100.00) per day.#or each - dsy such statement is overdue. Section. 4:06 Tenants Records and Audit %a) ~gnant's Recscitds. Tenant covenants and:. agrees. that Tenant's business. records and:. those of any subtenant;.licensee or concessionaire upon the Premises shag be maintained in accordance wKh generally accepted .accounting principles. Tenant Shall keep, at the Premises or at Tenants home or regional office, complete and accurate books of accounts and records wtth respect to all operations of fife busirresS conducted in or from the Premises, including the recording of Gross Sales and :the receipt of all merchandise anti-other goods into and the delivery of all merchandise and other goods from tide. Premisesduring the Term.. Tenant hail'retainsuch books and records, copies of all tax reports and tax returns submitted: to taxing autFxxitfes, as well as copies of contracts; vttuehers, .checks, inventory records and other documents and papers in any way relating to the aparatfon of such twsiness for at least three (3) years from -the end of the period to vfilch they are appiit~ble or, if any audtt is ct;'mmenced oc 1t a controversy shpuld arise between the parties hereto regarding Rent, until .such audtt or controversy is terminated even though Tenant's retention period may :continue after the.expiration of the Term or earlier termination: offhis Lease: (b) Landlord's Riaht So inspect. Landlord's acceptance of Percentage. Rent payments shall t>e without DavenpvrtsitatianOven-CapitalCitlr-Final June t7, 2f108 i TrachtmanlGO 10 prejudice to Landlord's examination and audit rights. Tenant's books and records (inGuding the books and records of any subtenant, licensee, concessionaire and other occupant) shall be open at alt reasonable times during the aforesaid retention period to the Inspection of Landlord or its duly authorized representatives, upon ten (10) days prior notice to Tenant, and Tenant shall make such books, records and other materials available at the Premises for such examination and audit at Landlord's request. Landlord and its representatives shall have full and free access to such books and records and the right to require explanation from Tenant, its agents and employees. (c) Tenant's Failure to_Comoly. ii such audR shall disGose that (i) any of the Yearly Reports understate dross Sales during the reporting period of the report to the extent of two percent (2%) or more; or (H) Tenant has not racArded Gross Sales or kept books of accounts and records for the:period required by Artk:le 4; or (iii) if Tenant shall be delinquent in delivering to Landlord the Yearly Report or Monthly Repots for two {2) consecutive months or more than twice in any Lease Year, then such understatement, f allure or delinquency shall be an "Event of Default" (as .defined in Section-1.6.01). In addition, in the event of such understatement or failure, Landlord shall have the right to bHl Tenant the amount of any Percentage Rent deficiency and the reasonat~le cyst of -said audit, .ail of which shall be paid by Tenant within ten (1 t7) days after demand. Such deficiency wilt bear interest at the "Default Rate" (defined in Section 16.03) from and after the date it should have been paid until paid. (d) Remedv. In the event Tenant violates the provisions'of Sections 4.06(a) or (b) and, as a result of such violation; Landkxd or its authorized representative is unable to conduct a proper examination and/or audit, the parties agree4hat Landlord shall have been deprNed of an important right under thts Lease and, as a result, will suffer damages in an amount which is not. readNy ascertainable. Therefore,' Pn such event, Landlord shall have the right to coiled and Tenant :agrees to pay,. as liquidated damages and not as a penalty, an amount equal to twenty percent (20%) of the greater of (i) Percentage .Rent reported for.the- period' or periods in questbn; or (li) the annual Minimum Rent. payable for the period or periods in question. Such liquidated damages are in additbnzto and not in lieu of eny otherremedies (at law or in equity) which Landlord may have underthis Lease. Section 4.07 AddiNonai'Rent. Tenant shall pay to Landlord or a third party,designated by Landlord, as additional rent ail sums of any nature required to be paid by Tenant pursuant to this Lease other than Minimum RenYand'Percentage Rent (herein sometimes collectively called "Additional (tent"), whether or not'expressly called "Additional Rent". Section d.p8 LateJlnsufflcient'Funds Charge. in the event Tenant fails'to pay when due.any installment of Rent or other sum- payable by Tenant under this Lease, Laruikxd may charge Tenant, as Addtional Rent, a "Late Charge" in the amount of,the greater of (i}Two hundred F'rfty Dollars {$250:00) or (it) five cents (3:05)-per doll8r overdue for the purpose of defraying Landlord's administrative expenses incident to the handling of such overdue payments. 1f Tenant pays any installment of teem by check and such check is returned for insufficient funds or other reasons .not .the fault. of Landlord, then Tenant shall pay Landlord, on demand, a.processing fee of One Hundred Dollars (3100.00) per returned cheek 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 eithera tertlfied or cashier s check. Section 4.09 tNhere Rent Ravable and;to Whom: No Deductions. -Rent payable by Tenant under this Lease shalt be paid when due without prior demand (unless such prior demand is expressly provided for in this Lease), shall be payatNe without any dedtlottons or setoffs or counterclaims whatsoever (except for credos expressly permitted by this Lease), and shall be paid by Tenant tv Landiord at Landlord's 'Rent PaymenbAddress set forth. in the Fundamental Lease Provisbns or to such payee and/or at such other place as may. be designated from time to time by notice from Landlord to Tenant. At the end of the Term, provkied 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 SecuritX,;Deaosit, .The sum referred: to as the security deposit in the Fundamental Lease:Pravisians is herein Called the "Security Deposit". The Security Deposit shall be deemed the sole property of Landlord and wilt be-held by landlord, without interest accruing in favor of Tenant, as security for Tenant's faithful performance of alt of the terms and condHions of ttus Lease for and during the Term. Provided Tenant is not in default under this Lease,. Landlord shall return: the Security Deposit to Tenant at the expiration of the Term. In no instance shall the amount of fhe Security Deposit be Considered a measure of liquidated or other damages. Landlord, to its sole discretion, may apply all or any part of the Security:Deposit in total or partial cure of any breach or other default or obligation of Tenant. Such. appiioation shaft not deprive Landlord. of any other rights or remedies Landlord may'have and shall. tort constitute a waiver or assu-nption by Landlord. In the event flf such application, Landlord shall nave the right to retttlire Tenant to res#ore the Secur~y Deposit to its original amount by giving notice to Tenant, and Tenant. shall irrrmed"rately restore the SeCUSity Deposit to its: origiral amount. In the event Landlord transfers its interest in this lease, the Security Deposit may be .fumed over by Landlord to Landlord's grantee or other transferee, and-upon any. such turnover of the Security Deposit,: Tenant hereby :releases Landlord and its Agent of any andall liabilityor other obligation with respect Ebth6 Security l~epos~, its application artrl return, and Tenant agreestu look solely to such grantee or other transferee. The prov'-sions of this Section shall also apply to subsequent .grantees and transferees. ARTICLE 5: REAL ESTATE 'AXES AND ASSESSMENTS. Section-5.01 Taxes. (a) Taxes. Tenant shall pay to Landlord In each Tax Year, as Additional Rent, Tenant's snare of all -teat estate and other ad valorem taxes and. other assessments, imposHions, excises and other governmental or quasi- govemmentat charges of every kind. and nature. (Including, tort not limited to, general .and-special assessments, special. DavenportsitalianOven-CapkalCity-Final June 17, 2Q08 l Trachtman/GO 11 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) wkh respect to the Shopping Center and all improvements thereon or any part thereof. Such taxes and assessments, including Landlord's reasonable costs and expenses (including statutory interest, if any) in obtaining or attempting to obtain any refund, reduction or deferral of such taxes are collectively called the "faxes" in this Lease. (b) ~ Tax Year. "Tax Year" shall mean the twelve (12) full calendar months of the Rent Term commencing with .the January 1 immediately following the Rent Commencement Date and ending December 31"' of such calendar year and each succeeding twelve (12) month period thereafter commencing in the Term; provided, however, the first Tax Year -shall commence on the Rent Commencement Date and terminate on thelmmediately succeeding December 31°x. If the Rent Term commences or terminates (other than by reason of Tenant's default) on a day other than the first or last day of a Tax Year, Tenant's Tax Charge for such Tax Year shall be equitably prorated. Landlord shall have the right to change the structure of the Tax Year to reflect the local billing customs. 5ectlon 5.02 Tenant's Tax Chame. (a) Tax Charge. Tenant's share of the Taxes In each Tax Year (the "Tax Charge") shall be an amount equal to the amount obtained by multiplying the total of all Taxes payable during-such Tax Year for the Shopping Center less all ,amounts paid as Taxes to Landlord byYhe occupants of any Excluded Areas (as defined in Section 1.02) by a fraction, the :numerator of which shall be the GLA of the Premises and the denominator of which shall be the average of the total amount of square feet of the GLA of the Shopping Center In effect on the last day of each calendar month of the Tax Year. (b) Payment of Tex Charfle. Tenant shall pay the Tax CMahge as AddRfonal Rent during the Rent Term in equal monthly installments, in advance, without demand or setoff, In an amount equal to one-twelfth (1112'") of the Tax :Charge as calculated above in paragraph (a). Landlord estimates t'enant's Tax Cfiarge for the first Tax Year to be the amount set-forth in Beckon 1.01(h) of this lease multiplied by the GLA of the Premises. Landlord may revise its estimate end may adjust such montfdy payment at the end of any calendar month. The frst such installment shall be due and payable by Tenant on the Rent Commencement Date {prorated for- the remaining number of days in the Tax Year). Thereafter, subsequent installments-shall be due and payable at the beginning of each ensuing calendar month during the Rent Term. In :addition to -the payments provitled for in the immediately preceding sentences, if Landlord shall have prepaid all or a portion of the Taxes applicable to the Rent Term prior to the Rent :Commencement Date, Tenant's Tax Charge :shall include Tenant's share of such Taxes on or before the Rent Commencement Date. Landlord shall send to Tenant.an invoice setting forth Tenant's share of such Taxes, together with copies of receipted bills evidencing Landlord's payment of such Taxes. {c) 1Votificatbn of Tax Charge, After Landlord has received the Tax bills for each calendar year, Landlord will notify Tenant of (i) the amount of Taxes on which the Tax Charge is based, (k) the amount of any refund, reduction or deferral -expenses, (iii) the total GLA of the Premises and the Shopping Center (less the Excluded Areas) on which the Tax Charge is teased and (iv) the amount of the flax Charge. kthe-aforesaid monthly payments on accxyunt of the Tax Charge for a given calendar year are greater than Tenant's share of the Taxes payable for a given calendar year, Tenant shall receive a credit from Landlord for the excess against installments of the Tax Charge next becoming due to Landlord; and if said payments are less than Tenants share, Tenant shall forthwith pay Landlord the difference. Section 5.03 Tefrant's Ad~Iitionai Tax Obpaations. (a) Additional Tax Obi' a tense, Tenant shall pay, before delinquent, any and aA taxes, assessments, impositions, excises, fees (Including;any impact fees) and other charges•levied, assessed or imposed by governmental or quasi-governmental autttoritiQS upon Tenant or its business operation, or based upon the use or occupanq of the Premises, or.upon Tenant'sieasehold interest, trade fixtures, furnishings, equipment, leasehold improvements {including, but not Limited to, those required to be made .pursuant to Tenant's Work) alterations, changes and additions made by Tenant, merchandise and personal property of any kind owned, lnstaked oa used by Tenant in, from or upon the Premises. tf the property of Landlord is included in any of the foregoing kerns, the aforesaid taxes, assessments, imposkions, excises, fees and other ctrarges shall nonetheless be paki by Tenant as herein provided. Tenant shall pay, when due and payable, any sales tax or other tax, assessment, imposition, excise ar other charge now o[ hereafter levied, assessed or imposed upon or against-this Lease or any Rent. or other sums paid or to be paid hereunder, or Tenant's, Landlord's or .Agent's interest in this Lease or any Rent or ether sums paid or to tie paid hereunder. Should the appropriate taxing authority require that any tax, .assessment, imposkion, excise or outer charge referred to in this Seotion 5.03(a) be cdlected by Landlord or Agent on behak of -the taxing authorky, then such tax, assessment, imposition, excise or other .charge shale be paid by Tenant to Landlord or Agent monthly as Addkfonal 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 Beckon 5.03(a) shat! be the obligation of Tenant-and not Landlord or Agent and, if imposed on Landlord or Agent, Tenant shalt pay the same to Landlord within thirty (30) days after receipt of each bill. ARTICLE 6: UTILITIES Section 6.01 derv ces. (a) Utilities and HVAC. Tenant agrees to connect to and use the utilities, facigties, and/or services (including electricity, sewer, water treatment, water, heating, ventilation and/or air condkioning, gas, telephone, A.D.T, or other alarm system, and any other utility facilky and/or service) supplied to or for the Premises by Landlord or the applicable utility company, municipality and/or other governmental body or authority supplying the utlky service and to pay Landlord or the applicable utkity company or other supplier thereof for such utilities. Exhibk B sets forth those utilities and Exhibit C sets forth those heating, ventilation and/or air condkfoning services which shale be provided to the Premises by Landlord as well as the manner in which charges for their consumptan shall be determined and paid by Tenant. Unless otherwise provided in €xhtbit B or C, .Landlord shall not be responsible for providing any utility or heating, ventilation and/or air condkioning service to the Premises or for providing meters or other devk:es for the measurement of utilities supplied to the Premises, and Tenant shall arrange for the furnishing. to the Premises of such utility services as it may require, as well DavenportsltalianOven-CapitalCity-Final June 17, 20U8 t Trachtman/GO 12 as for'the installation of all such meters or other devices. (b) Suoolv. Notwithstanding the foregoing, if permitted by law, Landlord shall have the right at any time and from time to time during the Term to either contract for service from a different company or companies providing utility service (each such company shall hereinafter be referred to as an "Alternate Service Provider") or continue to contract for service from the current utility service provider. Landlord may, after thirty (30) days notice to Tenant, cease to furnish any one or more of the utility services to the Premises without any responsibility to Tenant except to connect, at Tenant's sole cost and expense, Tenant's distribution facilities with another source for the utility service discontinued. Landlord :shall incur no liability to Tenant and this Lease shall not be affected in the event that any utility becomes unavailable from any source of supply or for any reason. Landlord, in Its sole discretion, shall have the right from time to time to alter the method and source of supply to-the Premises of electricity or any other utility, and Tenant agrees to execute and deliver to Landlord such documentation as may be required to effect such alteration. (c) Caoacity. Tenant shall not at any time overburden or exceed the capacity of the mains, feeders, duets, cx>nduits, or other faciities by which such utilities are supplied to, distributed in or serve the Premises. (d) Enerov Management Svstem.. Landlord has installed or may install an Energy Management System to efficiently conserve utNity usage and, if installed, Tenant agrees to pay monthly the sum of Sixty Dollars ($80.00) as Tenanf's~share of the- Energy Management System purchase, installation, maintenance and upgrade costs. Section 6~IZ Service Gharoes. (a) Service Charoes. In the event. any utilities used in the Premises are supplied by Landlord, Tenant shall pay to Landlord as Additional -Rent at times and'in the manner hereinafter set forth, charges for certain utility and heating, ventNation and/or alt-conditioning services as set forth herein. Such charges are collectively called the "Service Charges". (b) Failure to Pav. ff Tenant fails to make any such payment to Landlord within ten (10) days from the date payment is dus, or upon failure of Tenant to pay any other sums of Rent or charges due under this :Lease in full; Landlord may, without limitation, cut-off and discontinue anywater, energy and sanitary services famished to or for the Premises by Landlord, without any liability to Landord. Any action by Landlord pursuant to the provis(ons of this`Set~ion 6.02 shall not be construed as an eviction or disturbance of possession or an election by Landlord to terminate this lease. (c)' Interrun#ion of 5ervises: No Waste. Landlord shall not be liable or responsible for any bss, damage or 'expense Tarrant may sustain or incurby Cason of any change, failure, curtailment, interruption, disruption, "broom out" or .defect in the supply or character of any utility supplied to the Shopping :Center or Premises or ff the quantity or character of the utility suppNed by Lanford or sny service provider is no longer available or suitable for Tenant's requirements. and none of the foregoing shall constitute an actual or constructive eviction or entitle Tenant m any abatement ordiminution of Rent or relieve Tenant from any of its obtigaUons under this Lease. Tenant shall operate the Premises in such a manner as shall noY waste energy er water or burden ~ harm sanitary service. Landlord may cease to fumfsh any one or more of said services without responsibility !o Tenant except to connect the service facilities with such other nearbysource as may tae avaNable for the services so discontinued. {d) Sorinkler Charge. Tenant agrees to pay Landlord the Sprinkler Charge as set forth in Section 1.07(8) of taus lease. Charges wIN tie based bn a per square foot basis. (e) Trash and Garbaoe;Removal. Tenant shall be solely responsibiefortrash and:garbage remowat from the Premises, including the placing of aH trash and garbage in containers for such purpose. if provided, Tenant shah utNize the containers provided by Landlord or Landlord's trash removal service. In the •event Landlord elects to furnish-.such service to Tenant itseH or by contracting with athird-party vendor, Tenant agrees to use Doty' the service provided ' by Landlord or Its contractor, as applicable, and to pay for such service (including, without (imitation; both the cost of teasing containers and fhe cost of removal) monthly, either as Additional Rent paid to Landlord in aecoMarrce with a schedWie of charges to t>e established by Landlord (which Landlord may include among the Services Charges) or, ff billed directly by a third-party vendor, directly to such vendor {the "Refuse Handling Charge"). The failure to pay thrrely any third-party vendor for the Refuse Handling Charge shall be an Event of Default. In no event shall Tenant be obligated to pay Landlord -more for such trash and garbage removal service (if Landlord is providing such servk~e) than the prevaNing competitive :rates of reputable independent trash removal cxmtractors for service similar to that provided by Landlord. Tenant shall, at fts expense, comply with all trash recycling procedures in effect from time to time. Tenant shall not dispose of any Hazardous 3ubstanoes or items regulated by Environmental Laws (tjoth as defined in Section 7 fl7) in any trash' faciNties provided by landlord; rather, Tenant shall arrange, at its sole cost and expense, to haue all such .items removed from the Premises and Shopping Center to accordance with all Governmental Requirements (as defrned in 'Section 7.07): (f) Telephone. AN telephone service required by Tenant for its Premises shall be obtained by Tenant and shall be installed by the appropriate utNity company. All charges for telephone service (indwding the Installation) shall be bNted directly to Tenant by the utility compa-fy providing the service. Tenant shall pay to the appropriate utility company all charges as and when they become due and payable. ARTICLE 7: USE OF PREMISES Section 7.01 Sate Use and trade Name. Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously use and operate all of the Premises for the Perinittetl Use and under the Trade Name set forth in the Fundamental Lease Provisions. Tenant agrees that if the Premises is used for a use or under a trade name not set forth in the Fundamental Lease Provisions without Landlord's prior written consent, such conduct shall constitute an Event of Default. Tenant shall, at its expense, procure any and ail governmental licenses and permits required for the conduct of pavenportsltalianOven-CapitalCity-Final June 77, 2006 1 Trachtman/GO 13 business in or from the Premises and shall at all times comply with the requirements of each such license and permit. Landlord does not represent or warrant that it will obtain for Tenant or that Tenant wilt be able to obtain any license or permit. Section 7.02 ors. Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously operate, conduct its business within and otherwise use the Prem[ses in accwrdance 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 watt keep the Premises open for business to the public at least every Monday through Saturday from 10:00 am until g:30 pm and every Sunday from 11:00 am until 8:00 pm, or as ottrenaise 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 shalt be the amount of the applicable Break Point divided by three hundred sixty-flue (365) for each violation. Tenant agrees that Landlord may change the business hours from time to time to reflect local custom or seasonal shopping patterns provided that such changes are uniformly applied to a majority of retaN tenants in the Shopping Center. The requirements of this Section are subject to any and all Govenamentat Requirements. Section 7.03 Qoeratfonal Reauiremen (a) .Sales. Tenant will not conduct or permit to Ge conducted any auction, fire, bankruptcy, going-out-of- business, or simriar sale or utilize any unethical business methods; however, this provision shall not preclude the conduct of periodic, seasonal, promotional or clearance sales. {b) Nuis n Uses. Tenant will not distribute or cause to be distributed at or in the Shopping Center any handbills, notices, or other advertising. Tenant will not conduct or permit any activities that might constitute a nuisance, which are prurient, or otherwise generally not considered appropriate in . ao~rdance with Landlord's standards of operatkur for the Shopping Center. Notwithstanding anything contained herein to the contrary, Tenant is specifically prohibited from-:setting or distributing any of the following: (i) pipes of the type at'id nature commonly essodated wrih marijuana smoking (e.g. "vwdter pipes" or "bongs"), "roach dips", "cocaine spoons", and all other types of smoker's novelty hems, materials 'or paraphernalia which are w -may reasonably be construed to be intended for use in connection with narcotics or other unlawful substances; (ii) sexually explkit merchandise; and (iti) other merchandise of an offensive nature. {c) Sensory Orfenses. Tenant will not use or permit the use of any apparatus for sound/lighf reproduction or transmission including loudspeakers, phonographs, radios, televisions, or any musical instrument in such manner that the sounds ,shall be audible beyond the interior of the Premises. Tenant will keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the confines of the Premises; wiN not .cause or permit strong, unusual, offensive, or objectionable sound, sights, odors, fumes, dust, or vapors to emanate or be disperied from the Premises. Tenant will rwt install any antennae or other communication equipment anywhere other than in the interior of the Premises wRhout Landlord's prior written consent. {d) Shiooina and Recelvina. Tenant will not receive or ship articles of any kind except through the facNities provided for that purpose by Landlord .and will not permit any deNvery of goods, supplies,. merchandise, or fixtures to or from the :Premises through any portion of the enclosed mall unless the Premises has no entrance other than on the .enclosed-mall, in which case Tenant shall use its best efforts to schedule deliveries outside Shopping Centet<business hours, except as otherwise approved in writing by Landlord. Tenant viii not permri the parking or standing of trucks, trailers, or other vehicles or equipment engaged in loading/unloading in a manner wh~tr may interfere wrih the-use of any Common Areas or any pedestrian or vehicular use. (e) Cleanliness. Tenant will keep clean the inside end outside of all glass in the doors-and windows of the Premises and wtU replace any cracked or broken glass with glass of the same kind, size and quality. Tenant wtil maintain the Premises at its own expense in 'a dean, orderly and sanitary oondttlon, free of insects, rodents, vermin, and other pests, and vwlll use an exterminator designated by Landlord and at times designated by Landlord. Tenant wNl not burn or permit undue accumulation of garbage, trash, rubbish and other refuse, will -keep such refuse in proper containers in the interior of he 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 Liahtlna. Tenant will provide or cause to be provided aN security within the Premises as ii deems appropriate for Ks licensees, invitees and employees. Tenant will also provide- adequate Ilghtlng during such periods as the Premises is open for business. (g) Dj~plavs and Solidtations. Tenant will not use or permN to be used any space outside of the Premises for Ehe display or sale or offering for sale of any merchandise or for any other business, ocx;upatkur, or undertaking. Tenant writ not permit the use of any portion of the Premises or Common Areas for solicitations, demonstrations or any activities inconsistent with reasonable standards of a first lass shopping maN, in Landlord's reasonable determinatton. (h) Siff 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 Relations and Hand-Biltina. Tenant wiN conduct its tabor relations and its relations with employees in such a manner as to avoid all strikes, picketing, boycotts or hand-billing at or about the Premises and the Stropping Center. Tenant further agrees that if to connection wrih any work done by or for Tenant in or abou# the iremises there is a strike, picketing, boycotting, hand-billing or other acthrity 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. (j) Grease Trap and Exhaust. Tenant will, if applicable, install, properly maintain and routinely dean out a RavenportsttalianOven-CapitalCity-Final June 17, 2008 1 Trachtman/GO 14 grease trap and either a "black iron duct" or other sell-contained venting and exhaust system acceptable to Landlord. Such items shall be installed in a manner, of materials, and at a location approved in advance by Landlord and shall, at Landlord's option, connect to trunk facilities, ff any, supplied by Landlord. (k) Plumbing. Tenant will not use the plumbing facilities for any purpose other than that for which they were constructed and will not dispose of any damaging or injurious substance therein. (t) Vending Machines. Tenant wilt not install, operate, or permit to be installed or operated any coin or token operated vending machine, game machine, pinball machine, pay telephone, pay locker, pay toilet, scale, amusement device, or machine for the sale of beverages, foods, .candy, cigarettes or other items, except solely for use by Tenant's employees in non-sales areas and not to exceed collecWeiy two (2} machines or devices. (m) La I Purposes. Tenant covenants that the Premises shall be used only and exclusively for lawful purposes. Tenant will comply with and observe all rules and regulations established by Landlord from time to time and will conduct its business in the Premises in a dignffied manner. (n) ~udioNideo Cassettes. Tenant will not store, display, rent, or sell any audio or video cassettes or compact discs. (o) Rare iodel -First Class. Condition: Tenant shall maintain the Premises in first-class condition throughout the Term of this tease and shall refurbish ad worn surtaxes to bring the same to like new condition, at Tenant's sole cost and expense, as same is reasonably necessary during the Term. (p) Shopping Carts. Tenant will not permit-any shopping carts owned or leased by Tenant in the Common Areas, -even if taken there by customers. (q) Sm a .Tenant will not permit smoking in the Premises. - (r} a 'n Tenant will participate in any recycling programs implemented by Landlord at the Shopping Center. Section TA4 Emoloyee Parking Areas, landlord, from time to time, may designate that particular .portions of the Shopping Center parking, areas (the "Employee Parking :Areas") are to be used by Tenant and its employees, or other indivkfuals working at or from the Premises and, in such event, such employees/individuals shelf park their vehities only in the Employee :Parking Areas. Tenant s'hatt Burnish Larxiford with er list of Tenants and employees' vehideaicense numt~ers within fifteen (1S) days after Tenant opens for iwsness in the Premises and thereafter, at Landlord's request and wthin five (5) days of suxh request, Tenant st-ati notify Landlord in writing of any addition, deletion m other change to or from such list. Tenant shall notify each employee of the provisions of this Section prbr to eat%h empfayee commerx:iing employment or wotic at or from the Premises. '=1f Tenants employees do not parr their vehicles ,In the Employee Parking Areas as requked; Landlord may give Tenant notice of such violation. ff Tenant does not act to correct such violation within two (2) days'after Landkud's notice of violation is given, Tenant shall pay to Landlord, as Addftional Rent, an amount equal to One Hundred Dollars ($1©O.DO):per day per violating vehicle. For any subsequent vitiations, said charge shall commence. without the necessity of further notice and Landlord shalt have the right to have the violating vehities tooted at Tenants expense. Section 7.05 Signs:and Adverb ing, Tenant shall not .place or permit to be planed on the 'roof, the-exteckx of the :Premises, or on the glass of any window or door of the Premises, any sign, canopy, banner, 'decoration, :lettering or advertising matter (vtilectively a "si8n") without Landlord's prior written approval. Tenant shah submit to Landlord reasonably detailed drawings of its pro¢osed signs #or review and approval by Landlord :prior to utilizing same; however, Tenant may, without Landlord's approval, use in the storefront professionally made, feasor-ably sized signs indicating prices, stales, and tike information. Atl signs shall be insured and maintained Lty Tenant in good condtion,.operating: order, and.-repair. Flashing signs are prohibited. Landlord shall have the right, after Mrenryfiour {24) hours .prior written votive-to Tenant and without liability for damage to tine Premises reasonably caused thereby, to remove any items displayed oraffrxed in or tv the Premises or Shopping Center which Landlord determines (tn ate reasonable judgment) to be in violaton 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 forthirty (30) minutes after required business hours and for such other periods as reasonably required by Shopping Center rules and regulat'rons. Section i.t16 Radius Restrictbn. (a) Radius Restriction. Tenant covenants and agrees that during the Term neither Tenant nor any ~liate of Tenant" (hereinafter defined) shall directly or indirectly own, operate, manage or have a financial interest in any business within the "Radius" (as defined in the fundamental Lease Prov~bns) whfvh is stntitar to that of Tenant or which sells or displays, directly or indirectly, merchandise or other goods or services similar to those sold, offered, or displayed by Tenant at or from the Premises (the "Competing Store") as measured from the property line .of the Shopping Center nearest to the Competing Store in a straight. kne without regard for road mileage (the foregoing covenant hereinafter calved the "Radius Restriction"). "Affiliate cf'Tenant" means a proprietorship, corporation, partnership, uninccsrporated association., or other person or entty "controlling," "controlled" by, or under common "control" with Tenant or any person or entity serving as Guarantor, y any, of this Lease. The words °controltfng," "controlled; and "cont¢ol" shall have the meanings given them under the Securities Exchange Act of 1934, as amended. {b) Vi 'on. If Tenant vitiates the Radius ResViction, then, in addition to Landlord's other rights and DavenportsltalianOven-CapitalCity-Final .tune 17, 2008 1 TrachtmanlGO 15 remedies, Landlord shall have the right to (i) add the Gross Sales of the Competing Store to the Gross Sales made by Tenant at the Premises for the purpose of computing Percentage Rent or (ii) increase the annual amount of Minimum Rent payable thereafter by an amount equal to the highest Percentage Rent payable by Tenant in any calendar year prior to the opening of such Competing Store. The Gross Sales of the Competing Store shall be determined by applying the definition of Gross Sales in this Lease to the Competing Store. Landlord shall have all rights of inspection of books and records with respect to Competing Stores as it has wHh respect to the Premises, and Tenant shall furnish to Landlord such Monthly Reports and Yearly Reports from the Competing Stores as it is required to furnish with respect to the Premises. (c) Existi 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 to Landlord the existence of the Competing Store prior to execution of this Lease. 'Section 7.07 Compliance wkh Laws: Hazardous Substances. (a) Compliance with Laws. Tenant agrees, at its own expense, to comply with all applicable federal, state and local laws, rules, regulations, ordinances, guidelines, judgments and orders and all recommendations and requirements of any public or private agency having authority over insurance and/or its rates (including insurance underwriters and insurance rating bureaus), now In .effect or hereafter enacted or passed during the Term insofar as the Premises and any of Tenant's Permitted Use, signs, operations, or occupancy of the Premises by Tenant are concerned including, wHhout Ifmltation, ail Environmental Laws, the Americans with Disabilities Ad, zoning ordinances and related land use restrictions, building codes, and fire codes (collectively, the "Governmental Requirements"). As used herein, "Environmental Laws" means any existing or future federal, state or local law, rule, regulatbn, order or directive pertaining to the environment, human heath or safety, Worker protection, or Hazardous Substances. (b) Hazardous Substances. Tenant shall not use the Premises or the Shopping Center for the generation, manufacture, refining, treatment, transportation, storage, handling, release, or disposal of hazardous materials, hazardous v/aste, hazardous substances, pollutants, toxic materials (including, without limitation, asbestos, polychlorinated biphenyls, petroleum products, hydraulic oils, radon gas, :urea formaldehyde, flammable explosives, propane, radioactive materials, and teed-based. paint), or any other substances or materials which are now or hereafter regulated under any Environmental Laws (such materials, collectively, "Hazardous Substances"). Tenant may bring to and use at the Aremises Hazardous Substances incidentaFto its normal business operations in solely de minimis quantities and strictly in accordance with ail Environmental Laws. Tenant-shall store :and handle such substances in strict compliance with all Environmental laws. (c) Storave Tanks. Tenant will not, without obtaining Landlord's prior written approval, which approval may be witt-held in Landlord's sole discretion, instail'anystorage enk (including,. butnot limited to, any tank designed to store Hazardous Substances, liquid or compressed gas of anydtlnd), whetherabove or underground, at the Premises or in the Shopping Center. ff Landlord consents to swish instaliatkm, Tenant wYl comply with all Governmental Requirements and underwriter requirements cont:ernirig the InstaHatbn, operation, and closure of suds storage tank. Upon termination of this Lease, Landlord -shall have the option of requiring th8t Tenant, at Tenant's- sae cost end expense, perform tests relating to the condition of such storage tank arxl/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 _: agem, or contractor. At Landlord's request, Tenant shall relocate such storage tank at Tenant's expense to another tooatlon acceptable to Landlord. (d) Release Notification. Tenant shall notify Landlord Jmmediately upon learning that any provision of this Section 7.07 has been violated or that there has tieen a release, discharge or disposal of any Hazardous Substances at the Premises or at the Shopping Center. Tenant shall provkie promptly to Landlord copies of ail correspondence to or from third parties regarding Hazardous Substances in or originating from Tenant's operations at the Premises or at the Shopping Center. (e) Right to inspect. Landlord shall have the right at ail times during the Term of this Lease to inspect the Premises and conduct tests and investigations and'take samples to determine whether Tenant is in compliance wish the provisions of this Section 7.07, and to request lists of all Hazardous Substances used, stored, or located at the Premises. The cost of ail such inspections, tests, and investigations shall be borne by Landlord unless such inspections, tests, and investigations reveal a violation of any Environmental Laws by Tenant, its invitees or licensees, in which case such costs shall be borne byTenant. (f) Cooperation in Renard to Environmental 1:aws. Tenant shall cooperate with Landlord in obtaining approval of any transfer of the Shopping Center under Environmental Laws. Specifically, Tenant agrees that it shall (i) execute and deliver all affidavits, reports, responses to questions, applications or other filings required by Landlord and related to Tenant's activities at the Premises, (ii) allow inspections and testing of the Premises during normal business hours, and (iii) with respect to the Premises, perform any requirement reasonably requested by Landlord necessary for the receipt of approvals under Environmental Laws, provided the foregoing shah be at no out~of-pocket cost or expense to Tenant (except for dean-up and remediation costs arising from Tenant's violation of this Section 7.07). (g) Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in suffident quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Addttional information regarding radon and radon testing may be obtained from the county heath department. ARTICLE 8: COMMON AREAS AND OPERATING COSTS Section 8.01 Landlord's Control and Maintenance of Corn on Areas. (a) Landlord's Control. All Common Areas in or about the Shopping Center shall be subject to Landlord's exclusive control and management. Landlord shall operate, manage, equip, police, light, surface, maintain, repair and QavenportsitelianOven-CapitalCity-Final June 17, 2008 i TnlchtmanKiO '!6 replace (or cause all of the same to occur to) the Common Areas in good and reasonable condition and manner and Landlord shall have the sole right and exGuslve authority to employ and discharge alt personnel with respect thereto andlor hire independent contractors to perform the same. In addition, Landlord may provide (or cause to be provided) security in the Common Areas at a level determined by Landlord. (b) Flight to Close Common Areas. Landlord may at any Ume and from time to Ume dose ail or any portion of -the Common Areas to make repairs or changes or to such extent as may, in Landlord's opinion, be necessary to prevent a dedication thereof or the accxual of any rights to any person or to the pubi'~c therein, and dose temporarily any or all portions of the Common Areas. and perform such other acts in and to Common Areas as, in the exercise of good business judgment, Landlord shall determine to be advisable with a view to the improvement of the conven~nce and use thereof by occupants and tenants, their employees and invftees. Landlord may at any time and from'Ume to time exclude and restrain any .person. from use or occupancy of any of the Common Areas excepting, however, Tenant,. other tenants of Landlord, and bona fide invitees: of either who make use of these areas for their intended .purposes and in accordance with'the rules and regulations established by Landlord. (c) Landlord's lJse. Landlord sha0 at aN times have the right to utilize the Common Areas for promotions, exhibits, camivel-type. shows, rides, indoor or outdoor shows, displays, automoblie and. other stwws or events; the leasing or ik~nsing of k'rosks, push carts and food facilities; landscaping; seating areas; seasonal display8 and decorative items; and any other use :which, in Landlord's judgment, tends to attract customers to or benefit the customers of the Shopping. .Center.. Section 8;02 Chances by Landlord. As between Landlord and Tenant; .Landlord (or others entitled to) shall at ail times and from Ume to time have he right and privNege of determirring the nature and extent of the Common Areas acid of making such changes, rearrangements, additions or reductions in and to the Common Areas which, in its opinion, are deemed to be desirable or which are made as a result of any'Covernmental Requirements, Such rights shall inGude, Out not be limited to, the following (i) changing or modifying and adding to or subtracting from the sizes, locations, shapes and arrangements of parking areas, entrances, exfls, driveways, parking aisle alignments, and other Common Areas; (ii) altering the. direction and tiow of traffic; (iii) restricting parking by Tenant's employees tb designated areas; {iv) constructing surface, sub-surface or elevated parking areas and facilities; (v) establishing and charxting the level or grade of parking surfaces; (vf) 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'buUdings inthe Shopping Center, including building additionalatones on anytz'uildings; (ix) constructing roofs, wails, and anyotherimprovements 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 Iarxis or Improvements added thereto; and (xi) doing and performing such-tither sets 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 Reanlations. Landlord shall have the right, from time o Ume, to establish, modify and enforce reasonable rules acid regulations with respect to the use, operation and maintenance of aIi Common. Areas provided that ail such-rules and regulations affecting Tenant and its invitees and employees shell apply equally anri without discrimination to substantially ail of the retail tenants in the. bulkling kn which the Premises. is located rsr substantially all retail tenants engpgb~g in certain acts or of a certain user The rules and .regulations may include, but shat) not be limited to, the hours during which the Common Areas shall be'open for use. 'Tenant agrees to comply with all such rules and regulations. Section 8.04 Tenant's: Rights and Obligations. Tenant's rights In and to the use of ttte Common Areas shall at ati times be subject #o the rights of others to use the .same in common with Tenant, and it shall t>e Tenants duty to keep the Common .Areas #ree and clear of any obstructions or interferences created or permitted by Tenant or resuMing from. Tenant's opefaUrrns. Tenant and its employees and invitees are, except as otherwise. provided in this Lease, authorized and privileged during the Term to use the Common Areas for their respective intended purposes in common with other persons. Tenant's right to use any meeting room or auditorium In the Common Areas shall be subject to such schedules and payment oftses-or charges as Landlord may from time to lime adopt. Section 8:fl5 Operatlttst Costs. Deleted. Section't3.06 Te~arrt's Share of . oeratinsr'Costs: Deletedr AFtTtCLE 9: MAINTENANCE AND'R1=PAIR; ALTERATIONS Section 9.01' StrucfuraF Reuairs by Landlord: Landlord wih keep in good repair structural columns, structural portionsbf the floors (excluding tk~orUle, carpeting, terrazzo or other floor coverings); the. roof of the Shopping Center, and the exterior face of sorvice corridor waNs, provided- DavanportsltalianC)ven-CapitalCity-Final June t7, 2008 1 TrachtmanlGA 1'7 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 constructbn of an expansion joint or strip In the. floor slab shall not be deemed a structural detect requiring repair by Landlord, but, rather, a normal construction practice: which shall be Tenant's responsibility to appropriately plan for in its construction and use of the Premises. K Landlord is required to make any repairs to such portions of the Premises or Shopping Center by reason, in whole or In part, of he negligent act or failure to act by Tenant or Tenant's agent, servants, employees, contractors or subcontractors, or by reason of anyuse of the Premises by Tenant which is not normal wear and tear, Landlord may collect the cosYof such repars upon demand as Additional Rent. Landlord shall not be liable for repair, maintenance, alteration, improvement, reconstniction, renewal or any other action with respect to any part of the Premises or any plumbing, elecgical, HVAG, 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, of-its :own expense, maintain and keep in good repak in a neat, dean and orderly' conditioq, a0 portions of the Premises rxrt required to be maintained by Landlord pursuant to Section 9:04. Tenant's obigation under this Section 9.02 shall indude, twt not be {invited to, reasonable peradic painting and making ah non-structural ordinary and extraordinary, fioreseen and unforeseen maintenance, • repairs, and ,replacements to the Premises and its systems. Such obligation shalt include repairing; replacing, and maintaining, without Nmltation, ail entrances to the Premises, the storefronts},doors and doorframes, the glass in all doors and windows of the Premises, ail wails (except to the extentsei forth in Section 9:01), all interior portions of the Premises, escalators and elevators {ii any), all trade flxiures, fixtures, equipment, signs, veHings, as well as any plumbing, electrical, sprinkler, and HVAC systems, mechanical systems, ufNity meters, and sewer lines within the Premises, or under the floor slab of the Premises, provided, if under the floor slab, that the sut~ject systems or components of such systems exclusively serve the Premises: utNlty meters, pipes, and conduits outside the Premises whiri- are installed by or demised to Tenant :or which exclusively serve the Premises; HVAC equipment installed by or demised to or used solely by Tenant (regardless of wtteresuch HVAG equipment is located); and security grNles or similar enclosures, locks and dosing devices. IVOtwlthstanding the foregoing, Tenant shall make no adjustment, alteration or repair to any-part of any sprinkler; tie safety or other detection or suppression system in or serving the Premises without Landlord's prior approval (b) No Overload. Tenant will not overload the eieotricat caking or other systems serving the Premises of within the 'Premises, and will install of its expense, but only :after obtaining landlord's written approval, any additional electrical wiring or other Items vdhk:h may be required in connection with Tenant's apparatus. (c) Damage to the Premises. Tenant vwll repair promptly at'its own expense any damage{whether structural. or nonstructural) to the Premises caused by any construction or alterations performed by Tenant or b-inging into the Premises any property for Tenarrt'suse; or by the installation or removal, such property, regardless of fault or by whom such damage was caused, unless and then to the extent caused by the negligence of 'Landlord, its. servants or employees. Section 9.03 Landlord's Right to Access the Premises. Landlord and its authorized representatives may enter the Nr~ises at any and alt times during usual business hours for the purpose of inspecting ttte-same, and at any time and for any purpose in the case of emergency. Landlord may also enter the Premises at alt-times during usual business- hours for the purpose of showing the Premises to prospective purchasers, mortgagees and tenants. Tenant further agrees that Landlord may from time to time go upon the Premises and make any additions, alterations, repairs or replacements and do other work to the Premises on to any utilities, systems or equipment located in, above or-under the Premises which Landlord -may deem necessary or'desiraWe to comply with any Governmental Requirements, recanvmendations of an insurance rating bureau or any similar public or private body, or that Landlord may deem necessary or desirable to prevent waste or deteriorat'bn in connection with the Premises if Tenant does not make such additions, aiterations, repairs or other work promptly after receipt of wrttten demand from Landlord. Nothing herein shat imply any obligation by Landlord to do any work which under this Lease. Tenant may be required to do, and LandloM'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 t>e performed, Tenant shall pay the cast thereof to Landord as Additional Rent upon demand. :ln additbn, landlord may install, use; repair or replace any and aN materials, toots and equipment, and pipes, :ducts, conduits, columns, foundations; footings, wires and other mechanical equipment serving otherportions, 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 constnrctive eviction. of Tenant. Furthermore; notwithstanding anything in this Lease to ttie contrary, Landlord may erect additlonal stories or other structures over all of any part of the Premises and/or Shopping Center. In connection therewith, Landlord may relocate Tenant (in accordance with Section 2.06) andlor Tenant's signage and equipment and may erect temporary scaffolds and other aids:to such construction at Landlord's sole cost and expense. Section'8.04 ~g,;Rent Abatement or aces. Tenant shall not be entided'to any abatement of Rent or to any. damages for inconvenience, disturbance, loss of business or otherdamage to Tenant occasioned by Landlord's exercise of any rights provid~t in Section 9.01 or 9.03. ARTICLE 10: PROMOTION 0l' THE:SHOPPING CENTER Scotian 10.01 Marketlnsr.Service. :Deleted. :Section 40.02 MarketinsrService Charge. Deleted. DavenpartsRatlanOven~apitalclty-Final June i7, 2008 1 TrachtrnanlGO 18 ARTICLE 11: INSURANCE, INDEMNITY, WAIVER OF SUBROCiAT10N Section 11.01 Tenant's Insurance. {a) Recuired CQveraoe. Tenant will keep in force, at Tenant's expense, at all times during the Term and during such other times as Tenant oxupies the Premises or any part thereof and without limiting any IiabNities or any other obligations of Tenant, the minimum insurance coverage listed below. Coverage will be provided with forms and insurers acceptable to Landlord until ail obligatwns 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, ff unlicensed, be an admitted surplus lines insurer. (i) Commercial General Ltablltty Insurance. Commercial generaLliabNity insurance with respect to the Premises, the sidewalks, if any, abutting and adjoining. the. Premises, and the business operated by Tenant and any subtenants; 1'x~nsees and concessionaires of Tenant in or~from the Premises with a minimum onmbined singleJimit of Three lvliNton ibllars (x3;000;000,00) per occurrence, .including Insurance against assumed or contractual HabiRty under this Lease, on account of bodily inJwry, death, property damage or personal injury as the resul# of any one acseident or disaster, which .policy sfiall not include any exclusions for any property to Tenant's care, custody and control.. Such fiabitity insurance also shall extend o any liability of Tenant arising out of the indemnities provided, tn'Section 11 04. below. (ii) Property Insurance. Special perN all risk. property insurance covering (x) all of Tenants stock in trade, trade' fixtures, fumtture, furnishings; such equipment not affixed to the Premises,. and (y) Tenants interest 1n all of the improvements and betterments .installed in the Premises by Tenant; in each case to the extent of at least eighty percent (80°Io)bf the collective replacement value without coinsurance. (fit) CommercialtBusiness Automobile Liability Insurance. CommerGaUBusiness Automobile LiabiNty insurance with a comtNned single limit for tx~dily injury and .property damage of net less hen One Million Dollars ($i,000,000.00) each occurrence with respect to Tenant's owned, hired and non-owned vehicles; assigned to or used in performance of this Lease. (iv) Workers' Compensation. and Occupational Disease Insurance. tf the nature of Tenant's operation is such as to place any or all of its employees under tfie coverage of local workers' compensation ar similar statutes, 'Lenart shait also keep in force, at its awn expense, Vflorkers'Gompensation and Ocxtipationat Disease or similar insurance affording statutory-coverage and corrtaining statutory limits in accordance with lire laws of the stale in which: the - Shopping' Center is located and. FanployeWs Liability Insurance .with limits of not less than One Million l7ollars ($1,000,000.00) per occurrence. (v) i.iquor Liability insurance. ff Tenant salts or dispenses alcoholic beverages; ,Tenant shelf maintain liquor liability insurance ,(Dram Shop or'Nost coverage) with timfts of -not less than. Orte MNion t~llars- {vi) Other Insurance. Such othe- types of knsurance (excluding renf insurance in favor. of Landlord) and such additional amounts of insurance as;. fn Landlord's judgment, are necessitated by good business practice. or as . maybe standard.and customary in the industry, (b) The limits of insurance coverage required by this Lease or as carried by Tenant shall not-limit Tenants 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 inGude Landlord, Agent, Mortgagees and. any other entities as may be from time to time requested by Landlord and its respectAre agents, representatives, officers, directors, officials, -and employees as addltiona) insureds and shall require that the insurance provided by Tenant shall:be primary insurance and that any Insurance cabled byLandiord. 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 t)e excess andnotrAntributory:Insurance to that pr~yvided by Tenant. (d) A .certificate. of insurance aceptable to landlord shall be issued to Landlord by Tenant prior to commencement of this Lease (and thereafter :as renewed) as evidence that policies providing the required coverages; named insureds, endorsements, condftions and limits are in fuN force and effect Such ceriflcate shall Identify this Lease and contain provisions that coverage afforded under the polcies wilt not be canceled, terminated, or materiaNy akered until at least thirty (30) days prior written notice has been given to Landlord antl at(additional insureds,. {e) Upon request, Tenant will deposit with Landlord policies of insurance required by the provisions of this Section 11.01;. or certiL-c~tes thereof, together t>Jith satisfactory evidence of the payment of the requred premium or premiums thereof. The insurance required hereby: may (>e maintained by mans of a policy or policies of blanket or excess insurance so tong- as the provisions .of-this Section are fully satisf(ed and: provided that such policies spscifeally name Tenant's business at the Premises. and Tenant provides landlord with a certificate of such insurance. (f) Such policies of insurance with mere .than one Ensured shall contain a provisioasubstantially as foNows: "It is understood and agreed that the insurance afforded by this policy rir policies for more than one named insured shall not operate to increase the limits of the companies' IiabNlty, but otherwise shall not operate to limit or void the coverage of .any one named insured as respects claims against the same -named ;insured by any other named insured or the employees of such other named insured". (g) If for any reason whatsoever Tenant fails to .provide and keep in force any or ail of the insurance polieles sQt forth in Section 1 L01(a), then,. in such event, Tenant shall indemnify and hold landlord harmless against any loss which would-have been covered by such insurance. 5ectlan-11.02 Landlord's Insurance. (a) Landlord shall at all times during the Term carry and maintain the.types of insurance iisted below to the. arripurtts and forms specked. (i) Commercial General LlabiHty Insurance. Commercial general liability insurance against claims 'for property damage and bodily injury or death, such insurartee to afford proteeUon to the Hmft of not less than Five Million Dollars (x5,000,000.00) fn respect to property damage; injury or death to any number of persons. arising out of any one occurrence. Davenrro!rtsitaNanOverrCapitalCiry-Final June 17;:21Hi8 1 TrachtmanfGO 19 (ii) Landlord's Real and Personal Property. Insurance covering those portions of the Shopping Center owned by Landlord [exclusive of any tenant improvements and betterments and property required to be insured by Tenant pursuani to Section 11.01(a)(ii) or requred to be insured by other occupants of the Shopping Center] in an amount not less than one hundred percent (100°k) of full replacement cost (exclusive of the cost of excavations, foundations and footings), from time to time during the Term, providing protection against perils Included within the standard ISO form of .special form coverage insurance poky, together with insurance against sprinkler damage, vandalism and malicious mischief, and such other risks as Landlord may from time to time determine and with any such deductibles as Landlord may from time to time determine. (iii) Rent Insurance. Rent insurance with respect to the premises of the tenants in the Stropping Center ff available at a cost wh~h Landlord in Its sole judgment deems reasonable, against loss of rents in an aggregate amount equal to not more than twenty four {24} times the sum of (i) the monthly requirement of Minimum Rent of such tenants, plus (ii) the average monthly amount estimated from time to time by Landlord to be payable by such tenants as Percentage Rent and as Additional Rent pursuant to their leases. (b) Any insurance provided for in Section 11.02(a) may be maintained by means of a policy or policies of blanket 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 tv be named an insured thereunder by reason of payment or othewise. Section 11.03 Effect on Landlord's Insurangg. Tenant will not do, omit to do, suffer to be done, keep, or suffer to be kept anything in, upon, or about the Premises which will violate the provisions of Landlord's policies insuring against loss or damage by fire or other hazards {including, but not limited to, public (lability), which will adversely affect Landlord's property or liablliry Insurance premium rating or which wNl prevent Landlord from procudrig such poNdes in companies acceptable to Landlord, provided Tenant is first given adequate notice of the requirements of such policies. If anything done, omitted to be done, suffered to be done by Tenant, kept or suffered by Tenant to be kept in, upon, or about the Premises shall cause, by itself or in combination with other circumstances existing aY the Shopping Center, the premium rate of specal 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 permltted under this Lease or to such other property in the Shopping Center for the use or uses made thereof, Tenant wiN pay the amount of such increase or, in the event that other circumstances existing. at the Shopping Center shall have-contritwted to such Merease, such equitable .portion of such increase as reasonably determined by Landlord, as Additional Rent upon t.andbrd's demand and wiN thereafter pay the amount of such increase, as the same may vary from time to time, with -respect to every premium relating to coverage of the Premises during a period falling within the Term until such increase is eliminated. in addition, ff applicable, Landlord may at its option rectify the condltion existing on-the Premises which caused or was a contributing cause of the increased :premium rate in the event that 7enanl should faN to do so and may charge fhe cost of such action to Tenant as Addtional Rent, payable on demand. In determining whether increased piremiums are the result of Tenant's use of the Premises, a schedule, issued by the organization making the insurance rate on the Premises, showing the various components of such rate, shall be conclusive evidence of the several items and charges which make up the Properly Insurance rate on the Premises. Section f 1.04 Indemnification and YtLaiwer of :C (a} Tenant agrees to defend, tndemnl#y, and Sava harmless Landlord, Agent, and any ground and underlying lessor(s) and mortgagee(s) of the Premises and Shopping Center from and agathst any and all claims, actions:, demands, liability, costs and expenses (incud[ng, but -not ifmlted to, reasonable attorney's fees and disbursements) connected with the loss of life, personal injury or damage to property or business arising from, related to, or in connection with the pertormance of Tenant's Work, the occupancy of fhe Premises, or occasioned wholly or in part by act or omission of Tenant, its contractors, subcontractors, subtenants, Ilasnsees, or concessionaires, or lts or their respective agents, servants, or employees on any part of Landlord's property or the Shopping Center, or by reason a( Tenant's breach of any of the provisions of this Lease, Tenant shall not, however, be liable for damages or injury occasioned by the negligence or willful misconduct of Landlord, Agent, or any such ground of underlying lessor(s) or mortgagee(s), or their agents, employees, contractors, or servants, unless such damage or injury arises from perils against which Tenant is required by this Lease to assume or insure. Tenant's obltgattons under the aforesaid indemnity shall not be limited to the amount of commercial general IiabiNty insurance coverage which Tenant is required to carry and, ff Tenant flails 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 Ilabllities including, but not Ilmlted to, dean up costs, remedial and monitoring costs, damages to the environment, attorneys' fees, and costs of litigation, arising out of Tenant's installation of any hazardous substances or violation of any Environmental Laws (as defined in Section 7.07). In the event insurance coverage is available or becomes available for the tosses or Nabillties described in this paragraph, Tenant sha{I furnish evidence of such coverage for the protection of both Tenant and Landlord (and any designees of Landlord). (c} Unless and then solely to the extent such damage is caused by the negligent acts or omissions of Landlord, Agent, or their respective agents, servants, and employees, nelther Landlord, nor Agent, nor their respective agents, servants, employees or contractors shall be liable for, and Tenant, [n consideration of Landlord's execution of this Lease, hereby releases all claims for, loss of Iffe, personal injury or damage to property or business sustained by Tenant or any person claiming through Tenant resulting from any fire, accident, occurrence, or oondttion in or upon the Shopping Center or any part thereof (including, without Ilmitation, 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-condi8oning equipment, electrical wiring or Instaiiation thereof, water pipes, stairs, railings or walks; (ii) any equipment or appurtenances being out of repair; (iii) the bursting, leaking, or running of any tank, DavenportsttaiianOven-CapitaiCity-Flnel June 17, 2008 t TrachtmaniGO 20 washstand, water closet, waste pipe, drain, or any other pipe or tank in, upon, or about the Shopping Center; (iv) the backing up of any sewer pipe; (v) the escape of steam or hot water; (vi) water, snow, or ice being upon or coming through the roof or any other place upon or near the Premises or the building of which the Premises is a part or otherwise; (vii) the falling of any fixture, plaster, ceiling the 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 daims, actions, demands, Nobility, costs and expenses (inducting, but not limited to, reasonable attorney's fees and disbursements) in connection with the loss of Iffe, personal injury or damage to property arising from, related to, or in connection .with Landlord's wiliful misconduct a' negligent acts or omissions in the Common Areas. Landlord shall not be liable for damages or injury occasioned by the negligence or wiliful misconduct of Tenant, its agents, contractors, servants or employees, or damages and .injury attributable to terrorism, viraUbacterblogical pandem~s, or other catastrophic events beyond Landlord's reasonable control. (e) This Section 11.04 shad survive the expiration or earlier termination of this Lease. Section 11.05 Mutual Waivers. in he event the Premises or its contents are damaged or destroyed by fire or other insured casualty, (i) Landlord, tothe extent covered by its policies of special cause of loss form property Insurance, hereby waives Its rights, ff any, against Tenant with respect to such damage or destruction, even if said fNe or other casualty shall have been caused, in whole or in part, by the negflgence or willful misconduct of Tenant, lts agents, servants, or employees, and (il) Tenant, to -the extentcovered by its policies of special cause of bss form property Insurance, hereby waives its rights, if any, against Landbrd<with respect to such damage or destn~ction, even ff said fire or other casualty shall have teen caused, in whole or in part, by the negligence or willful misconduct of Landlord, its agents, servants, or empbyees. The ;parties hereto, on behalf of their respective insurance companies insuring the properly of eittrer Landlord or Tenant against any such bss, 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 12101 Landlord's Duty to Reconstruct the P In the event he Premisesis damaged or destroyed by any of the perils Yeferred to in Section 11.02(axfi) against which Landlord is obligated to procure insurance, unless Landlord or Tarrant terminates this Lease pursuant to Section 12.03, Landlord shad (sub)ect to being-able to obtain all necessary permits and approvals), within one hundred twenty (120) days after sudt damage or destruction, canmence to repair or reconstruct the structural boor slab, demising wail studs (without drywall) artd roof (orfkxx slab above, as the case may be) of the Premises. Landlord shall prosecute all such work diNgently to completion. in no event shall Landlord be liable for Interruption to Tenant's business or for damage to or repair or reconstn~ction of any of fhose things which Tenant is required to insure pursuant to Seetlon 11.01(a)(ii). Landlord wifl not expend more forgny repair or reconstruction pursuant to this Section than the net amount of insurance proceeds actually receNed by Landlord (after deduction of Landlord's reasonable expenses In obtaining such proceeds and any amounts required to be paid to Landlord's mortgagee) and allocable to the Premises on a square foot basis. Section 12.02 Tenant's Dutvto Reconstruct the Premts If any item which Tenant is required to insure pursuant to Section 11.01(axli) is damaged or destroyed by fire or other casuaky, uittess Larrdiord,or Tenant terminates this Lease pursuant to Section 12.03, Tarrant shalt {sub)erd to being ante 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 reconstnict pursuant to Section 12.01, commence to repair or rersonstruct such damaged or destroyed items to at least substantially the same oondltion in which they were prior to such damage or destruc~ian and prosecute the same diligently to completion. tiectian 12~OS Opylgn ~7emlinate. (a) Landlord's Option to Terminate. Landlord shall have the option to terminate this Lease upon giving written notrce to Tenant within sixty (t'i0) days after the Shopping Center is damaged or destroyed If: (i) the Premises is rendered wholly unfit for the carrying on of Tenant's twsiness after damage to or destruction.thereof from arty 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(axli); 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. (b) Tenants Ootion to Terminate. Tenant shall have the option to terminate this Lease upon giving written :notice to Landord within thirty (30) days after the Shopping Center or Premises is damaged or destroyed if the Premises is rendered wholly unfit for the carrying on of Tenant's business after damage to or destruction of the Premises which occurs within the Iasi three (3) Lease Years of the Term. (c) F_ffective Date. With regard to termination as set forth in (a) and (b) above, such termination shall take affect ninety (90) days from and after the receipt of such notice by the other party and, in such evert, this Lease shalt DavenportsitalianOven-CapitalGty-Final June 17, 20013 1 Trachtman/GO 21 terminate. as of the aforesaid date (except that such termination shall not affect the obligations of the parties which have accrued and remain unpaid). Section .12.04 ~tement of Rent. If Landlord or Tenant does not terminate this Lease pursuant to Section 12.03 and if the Premises is rendered wholly or partially unfit-for the carrying on of Tenant's business by such damage or destruction, then the Minimum Rent and Additional Rent payable by Tenant shall abate proportionately as to the portion of the Premises rendered unfit for that period from the date the. Premises is rendered unfit until the earlier of (i) sixty (60) days after Landlord re-delivers possession of the Premises to Tenant or ((i) the date Tenant reopens fa business. iVothing in this Section shall be construed to penrtit any abatement of Percentage Rent, and the calculation of Percentage -Rent shall be governed solely by Section 4.03. ARTICLE 13: CONDEMNATION Section 13.01 Total Condemnation of the Premises. If the entire Premises shall be taken or condemned either permanently or temporarily.. by any public or_quasi- public-authority under the power of eminent domain, condemnation or exproprlaUorror by conveyance in Lieu thereof or by agreement (hereinafter "Condemnation"), then this Lease shall terminate as of the date possession is required to be surrendered to the condemning authority. Tenant-shall have no claim against Landlord or the condemning authority for the value of the unexpired Term. 'Tenant shall pay Rent and perform all obligations under this Lease up to such date-.and Landtord shall refund to Tenant any Rent which Tenant shall have. paid In advance for-the Period subsequent to such date. Section 13.02 Partial Condemnation of the (a) If any part of the Premises shall be taken by Condemnation which renders the remainder of the Premises unsutable for the canying on of Tenant's business; #hen this Lease shad terminate as of the date possession is required to be surrendered to the condemning authority. 7enanYshell have no daim against Landlord or the oondiemning authority for the value of the unexpired Term. Tenant shall pay Rent and perform all oMigatbns under this Lease up to such date and Landlord shall refund to Tenant anyRent which Tenant shall have paid in advance forthe period subsequent to such date. (b) In the event the partial Condemnation does not render: the Premises unsuitable for the carrying on of Tenant's twsfness, this. Lease shall terminate only with respect to the :parts Of the Premises taken as of the date possession 7s required to be surrendered to the condemning authority. Tenant shall pay Rent and perfonn all obligations under this Lease up to such date and Landlord shall refund to Tenant any Rent which Tenant shall .have paid in advance for the period subsequent to such date. As of such date, Minimum Rent and the Percentage Rent Break Point shall each he reduced in the same proportion that thee. GtA of'the premises condemned bears to the GLA of the Premises immediately prior to the Condemnation, suoh reduction commenting: ap of the date Tenant Fs requred to sun•ender .possession of such portion and, with respect to the days during which the Premises is rwt open for business, the calculation of Percentage Rent shalt be ad)usted in accordance with Section 4.03 Landlord shall restore the Premises as soon as reasonably possible to a complete unit of simUar quality and character as existed `prior to the Condemnation (to the extent feasible), provided that Landlord Shall not be required to .expend more on such restoration than an_amount equal to the condemnation award received by Landlord (less all expenses, costs, legal. fees and spurt costs incun•ed by. Landlord in connection with such award and amounts due to any mortgagee of Landlord) and allocable to the Premises. Tenant shall promptly make all necessary -repairs, restoration and alterations of Tenant's fixtures, equipment and furnishings and shell promptly reenter the Premises and commence doing business in accordance with the provisions of this Lease. Section 13.03 Condemnafksn of the 5ho~oina Center. If any part of the Shopping Center is taken by Condemnation so as to render, in Landlord's judgment, the remainder unsuitable for use as an enclosed mall shopping center, Landlord ghall-have the right to terminate this Lease upon notice in wniing to Tenant within one hundred twenty (120) days after possession is taken by such Condemnalbn. H Landord terminates this'Lease, it shad terminate as of the day possession is taken by the condemning authority, and Tenant shalt pay Rent and perform: ail of its other obligations under this !.ease up to tt-at date with a proportionate refund by Landlord of any Rent which Tenant may-have paid in advance for any period subsequent to such possession, Tenant - shall have no claim against Landtord or the condemning authority for the value of the unexpired Term. Section 13.04 Damasres, All damages in the event of any Condemnation are to belong to Landlord and any mortgagee of Landlord whether such damages are awarded as compensation for diminution in value of the leasehold reversion or fee of the Premises, orr Tenant's leasehold improvements. Tenant-shall have the right to claim and reoover'from the condemning authority; bu# not-from Landlord or its mortgagee, such compensation as may be separately awarded or recoverable by Tenant in Tenant's own right for or on account of any cosi or expense which Tenant might incur in removing Tenant's merchandise; furniture and frxtures, provided such compensation does not in any way diminish fire compensation otherwise available to Landlord. In the event the condemning authority makes a single damages award .on acx:ount of ail damages to both Landlord and Tenant, landlord wiU cooperate with Tenant in inducting Tenant's damages in the claim Landlord submits to the <wntlemning authority, but Tenant shah be entitled only to suds portion of the award as remains after Landlord is fully compensated for'itS damages; ARTICLE 14: FIXTURES AND PERSONAL PROPERTY Section 14:01 Jmbravenfents to Prrimises• Removal. DavenporlsltailanUven-CapitalCity-Final June 17, 20Q6 1 TtacllitrriarVGO 22 All leasehold improvements made to the Premises by Tenant including, but not limited to, the items furnished pursuant to Tenant's Work, alterations, changes and additions by Tenant, light fixtures, floor coverings and partitions, heating, ventilating and air-conditioning equipment, mechanical and plumbing equipment (but excluding Personal Property 2s defined below) shall, when installed, attach to the fee and become and remain the property of Landlord. However, Landlord may designate by written notice to Tenant those alteratons, changes, and addHions made in the Premises during the Term which shall be removed by Tenant at the expiration or termination of this Lease, and Tenant shall, at 1'enanYs cote cost and expense, promptly remove the same and repair any damage to the Premises caused by such removal or by the installation of such alterations, changes or additions. Section 14 02 Tenant's P~essanal PsQaerty: Remit. Any of Tenant's personal property not permanently affixed to the Premises (including trade fixtures, signs, counters, .shelving; showcases, mircors, inventory and other personal. property and her®fnatter called "Personal Property") shall remain the property of Tenant throughout the Term. Prov{ded Tenant is not in default under this Lease, Tenant-shall have the right at any time during the Term to remove its Personal Property stored or installed in the Premises. Ii Tenant is in default under this Lease, Landlord shall have the right to take exclusive possession of the Personal Property and to use the Personal Property without rent or charge, and Landbrd, whether or not it takes possession of the Persona{ Property, shall have-the benefit of any lien thereon permitted under the laws of the state in which the Shopping Center is located. ff Landlord takes possession or asserts such lien Irt any manner, Tenant shall not remove or permit the removal of the Personal Property untiF possession is relinquished by Landlord or the Uen is removed, as the case may be. Nothing in this Seciion shall be construed to pemnit Tenantto remove the Personal Property. prior to the end of the Term wftltout Tenant's immediate replacement with similar Personal Property of comparable yr better quality, or otherwise to render the Premises unsuitablefor the eontinwed conduct of Tenant's Permitted Use. Tenant; at its expense, shall immediately repair any damage to the Prentises or Shopping Center byreason of installation or removal of any Personal Property_unless the damage is caused by Landlord pursuant to Sectors 9.03. N Tenant-fails to remove the Personal Property from the Premises upon expiration Or earner termination of 1his:Lease, tlten`such Personal Property shall become Landktrd'sproperty without further act ,by Landlord or Tenant unless Landlord elects to require aN or a portion of such Personal Property to be removed by Tenant, in which case Tenant shall promptly remove the items designated by Landlord and restore the Premises to i4s prior condition at Tenant's expense. Tenant hereby agrees to indemnrfy and hold harmless Landlord from any liability, claim, expense or Judgment arising from or related to Tenant's Personal Property'lett in the Premises after expiraton or cattier termination of this Lease; except for liability arising from Landlord's willfuLmisconduct. ARTICLE'45: ASSIGNMENfiANfO SUBLETTING Section 15:01 ASSignmr3nS-and-SLib Tenant shah-not permit anyone other than Tenant to occwpy-the Premises or-:any part thereofand'shall not transfer, assign, sublet, enter into any license, concession, or other occupancy or use agnsements, or mortgage or hypothecate this Lease or Tenants interest in>and fo this .Lease or the Premises or arty part thereof (herein collectively referred to as 'Transfer') without first obtaining in each and :every instance thee. prior. written txtttsent of Landlord, which Landlord may vrithhold in its sole discretion.. Any. attempted Transfer without.such prior writterrconsentshall be an Event of Default, shall not be binding upon Landlord, shall confer no sights upon, any third.person and shall not relieve Tenant of its obligations :under this :Lease.. Any transfer by merger, consolidation, liqutdatlon or otherwise by operation of .law, including, but not limited 'to, an assignment for the benefit of creditors, as well' as arty transfer, assignment, or hypothecation of any stock or general partnership or:membership interact in T'ertantso as to result In a change of .the control thereWf, shall be included in the terra :'Transfer" for the purposes of this Lease and shat! be a vioiationof this. Section 15.07 an[i an Event of Default, except as c-therwise spedfically provided in Sect[on 15.02. Consent by Landlord to any Transfer shall not consttiute a waiver of he necessity for sudt consent to anysubsequent Transfer. In the event of a permitted Transfer, Tenant agrees nevertheless to and shall remain-fully liable for the full performance of eadt .and every obligation under this Lease to bs performed by Tenant .and the assignee: shall be deemed to have assumed, and agreed to be bound by ail of the'terms of this Lease. in the event of any proposed Transfer, Tenant shall deliver to Landlord written nptlce :(the "Request Notice") .requesting .landlord's consent to-the proposed Transfer atteast thirty (30) days prior to the date on which, vuith Landlord's prior written consent; the Transferwould be effective. The Request Notice shelf ~ntain. without ilrititatlon, at least: (i) the full ktentification df the proposed transferee; (ii) the most recent financi2l statements and..other evWence of the transfen~e's financlal responsiM'1[ty end business performance; {iii) the transferee's proposed specific use and business proposed to be conducted at the Premises; (iv) the scope of arty proposed alterations to the storefront of and within the Premises;. and (v) the monetary and non-monetary terms and condittons of the proposed Transfer: Landlord shall have the right and option (the "'rake-back t)ption"), exercisable by. Landlord giving Tenant written :notice within thirty(30}days aRer Landlord's receipt of the Request Notice, of reacquirMg the Premises or portion thereof which is the subject of the proposed Transfer and terminating this Lease, whtdi terminatlon shalt be .effective on a date speciRecl'.by i.andlortl in its notice of exercise of the fake-bade Qption: if Landlord elects: not to exercise the Take=back Option and elects to give written consent to the proposed Transfer, .then Tenant shall.'pay .to Landlord upon Tenants receipt, as Additional Rent; all sums and other economic csgnskleration (whether by :lump sum payment or athe-wise) received by Tenarrt in any month as a result of or related to the "transfer whether Or not denominated rent whkh exceed in -the aggregate the sums which Tenant is obligated to pay and does pay Landlord under tftls Lease in the same .month (prorated to:ref~ect obligations allocable to Thatportion of the Premises which.is the subject of the Transfer): N:Landlord gives Landlord's written consent to the proposed Transfer .and Tenant does not consummate-the Transfer (incloilirtg; without limitation; delivery of.possession by:Tenant to and occupancy by the approved proposed transferee) within thirty 430) days after the date Landlord gives its written consent to the proposed Transfer, titers landlord's written consent and the Transfer shall be automatically void and of no force br effect whatsoever. Tenant agrees that Landlord (and-any assignee or transferee of Landlord's right, title and interest in this Lease) shat! have the right to exercise the Take-bade Qption 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, DBVenportsltalianOven-CapitatCity-Final June 17, 2008 \ TrachtmanfGO 23 and the period for Landlord to exercise the Take-back Option shall be extended by the number of days between Landlord's request for and Landlord's receipt of such additional information. Tenant shall pay to Landlord the sum of Five Thousand Dollars ($5000.00) {"Transfer Fee"), as Additional Rent, to defray Landlord's administrative costs, ovefiead and oounsel fees (n connection with the consideration, review and document preparation of any proposed assignment or subletting, such sum to be paid at the time Tenant delivers to Landlord for Landlord's execution the assignment and assumption agreement executed by the assignee and assignor. Section 15.02 ~ssianment to Parent, Subsidiary. Q,fftliat~,Comoration of Tenant. Plotwithstanding the provisions of Section 15.01, Tenant shat) have the right, without Landlord's consent and free of the Take-back Option, to assign this Lease to the following entitles (each an "Affiliated Corporation"): (a) Tenant's parent corporation, (b) Tenant's subsidiary, or (c) a corporation (i) wh~11 owns more than a fifty percent (50°x) Interest in Tenant or (ii) in which Tenant owns more than a fifty percent (50°!0) interest; provided that Tenant shall deliver#o Landlord within ten (1i))-days after the date of such assignment (x) an executed copy of the assignment wherein such Affiliated Corporation assumes for the benefit of Landiorl all of Tenant's obligatwns under this Lease without releasing .Tenant from IjabNtty for any of the terms, conditions and covenants of this !.ease {including the payment of Rent), {y) a statement certifed by a certified public axountant that the Affiliated Corporation's net worth is at least fifty million dollars ($50,OOO,t100),-:and (z) the Transfer Fee. After the date of the assignment, in'ihe event such Affiliated Corporation shalt no bnger be Tenant's Affiliated Corporation as defined above,. ther- such an -event shall constkute a Transfer and shall be subject to the provisions of Section 15:x1. - 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 fulfiN aN of the covenants, conditions and agreements by it to be perfomtad as set forth in this Lease. In addition to events elsewhere stated in this lease as Events of Default, the foltovrfrtg shall be deemed to be an Event of Defauk (each of which is sometimes referred to as an "Event of Default"): {a) Tenant's failure to pay Minimum Rent=andlstr Percentage Rent and/or Additional Rent or arty installment or year-end adjustrment ff such failure continues for ten (;10):days after written notice by Landtorcl to Tenant; or (b) Tenant's failure to submit Plans on or before the Plan Submittal Date and in acoordar-ce with Section 2.03, or to correct deficiencies in tts Plans and timelyresubmif any "disapproved" Plans, or to commence Tenant's-Work on or before the Construction Gr3n-mencement Date and in accordance with the terms and conditions of this Lease; or (c) Tenant's failure to open its business to the public in the Premises on or .prior to the Required Opening Date, or to open-the Premises or to keep the Premises open an the manner and on the days and hours required by this Lease, or 'rf Tenant vacates or abandons the Premises; ar (d) Tenant's failure to observe or perform any of :the covenants, terms or conditions set forth in Artide 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 evels -and employee staff in accordance with the provisions of Article 7; or (g) Tenants 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 covenants, terms, or conditions of this Lease 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, Tenants failure to observe or perform any of the other tease .covenants, terms, or conditions for a period of twenty (ZO) days after written notk:e thereof from Landlord to Tenant {unless such failure cannot reasonably be cured within twenty (20) days acid Tenant shall have commenced to cure said failure within twenty (20) days and continues diiigentlyto pursue the curing of the same until completed); or (j) the commencement of levy, .execution, or attachment proceedings against Tenant or Guarantor or a substantial portion of Tenant's or Guarantors assets;'the commencement of levy, execution; attachment or other process of law upon os against Tenant's leasehold estate.; the applicatton for or the appointment of a fiqu(dator, receiver, custodian, sequestrator, conservator, trustee, or other similar judicial officer frx Tenant or Guarantor or for alt or any substantial part of the property of Tenant or Guarantor (and such appointment continues for a period of thirty (30) days); the insdvency of Tenant or Guarantor of Tenant in bankruptcy or equity sense; any assignment by Tenant or Guarantor for the benefit of creditors; or QavenportsitalianOven~apitalCity-Final June 17, 2008 l TrachtmanfGO 24 (k) the commencement of a case by or against Tenant a Guarantor under any insolvency, bankruptcy, creditor adjustment or debtor rehabilitation laws, state or federal; or the determination by Tenant or Guarantor to request rr;lief 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 t,andlo~d' (a) Landlord's Remedies. Landlord may treat any Event of Default as a material breach of ihis Lease. Landlord's failureto insist upon strict performance of any covenant, term, or condition of this Lease tx to exercise any right. or :remedy shall not ti'e deemed a waiver or relinquishment for the future of such .performance, right, or remedy. In addition to any and'. all other rights orremedies of Landlord. in this Lease or at law or in equity, Landlord shall have the following rights and remedies ff there shall-occur any (vent of Defauk (none of which shah t>e construed as an election ko forego any ofthe other remedies then or in the future), ail without being liable to prosecutbn or fordamages: (t) Eo accelerate the whole balance or any part of Rent and all other sums payable under this Lease by Tenantfor the entire balance of the Tenn; and/or (ii) to terminate: this Lease,- re-.enter and take possesson of the Premises, and remove all persons and contents therefrom, :all without daim or right for Tenant, as allowed by law; and/or (iii), to $ring suit for the collection of Rent and-.damages. without entering into possession of the Premises or terminating this Lease; andlor (Iv) to terminate Tenant's right of possession of the Premises by summary proceedings (or otherwise, as allowed by law} without. terminating this-Lease and, in the event of re-entry and termination of possession, Landlord shall have,the right to remove any personal property from the Premises and either treat such property as abandoned or place the same in storage at Tenant's sole cost, expense, and risk; and/or (v) to :the extent'legaily permitted, 20 enter the Rremises and, without further demand or notice; proceed to distress and sale of the goods, chhtteis, personal property, and other contents of the Premises and:to levy the _ Rent andlor to cause issuance of and levy of'dlstress writ for Renkuponthe contents of the•Premises. Tenant shall pay all .costs and officers' commissions including watchmen's wages and: sumschargeable by Landlord and charges which landlord may impose by statute as commissions to the constable or other persons making-.the It3vyand, in such cases, all costs, officers' commissions, ante other charges shall lmmediataiy attach and become .part of landlord's. claim for Rent; any tender of Rent without said costs; commissions, and charges made after the issuance of a warrant of distress shalt not be sufficient to satisfy Landlord's claim. (b) Confession of Judtlment -Rent. Tenant covtinants and agrees that ff there is an Event of Default, then Landlord may, without limitation, cause- judgments for money to be entered against. Tenant and, for those purposes, Tenant hereby .grants the following warrant of attorney: Tenant hereby irrevocably. authorizes and empowers any prothonotary, Berk of court, attorney of anycour~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 otl~r amounts to be paid to Landlord 6y Tenant to appear for Tenant, assess damages, and confessor ottuarnrise enter judgment against Tenant-.for ail. or any part of-.the Rent andlor other amounts o be paid to Landlord by 'tenant-incuding, Without limitation, sums under Section 16 U2(a), together with interest, costs,: and an attorneys' corrtmisskui of five percent (596) of the full amountof such Rent, amounts. and sums. Thereupon, writs of execution as well as attachment mayforthwith issue and be served without any prbr note, writ, or proceeding whatsoever:exeept as may otherwise:be required byapplieable law. The warrant of attorney herein granted shall not be exhausted by one or.more exerdses of it; sutxx3ssive actions may he commenced: and successive judgments may be confessed or otherwise entered against Tenant, from time to time, as often as any of the Rent and/or other amourns and sums shall fall or be due or:be in arrears. This warrant of attorney may be exercised during tfie Term of this Lease, any extensiod or renewals thereof, and/or after the termination or expiratkm of the Term. The provisions of Section 18.02(d) are ineorporated:heteirrbythfs reference.- (c) Confession of Judgment -Possession: Tenant covenants and agfees that ~ there is an Event of Default, this Lease is terminated, or the Tenn or anyeztertsionsorrenewalS thereof is terminated or expires, then; and in addftian to the rights and remedies set forth in Section i6.02(b), Landlord .may, without:limitation, cause: judgments in ejectment. and/or for possession of the Rremises to be entered against Tenant and, for those purposes, Tenant'hereby .grants the following warrant of attorney: Tenant hereby irrevocably:authorizes and empowers any prothonotary, clerk of court, attorney of any court of record antUOr Landlord (as well as someone acting -for Landlord) in any and all actions commenced for recovery of possesson of the. Premises to.appear for Tenant and confess t>r otherwise enter judgment in ejectment andlor far possession of the Premises against Tenant and all parsons chiming: directly or indirectly by; through,, or under Tenant. Thereupon, writ of :possession may forihwfth Issue and be served, without-any prior notice; writ, or proceeding whatsoever except as may otherwtse be eequired by applicable law. tf, for any reason after the foregoing. action or actions shall have been commenced, li shalt be determined that possession of the Rremises should remain in or be restored to Tenant, Landlord-shall have the right to commence one or more further actions as set forth heraln to- secover possession of the Prerxiises including, without limkation, appearing for Tenant and confessing or otherwise entering. judgment for possession. of the Premises. The provisions of Section 1 t3.02(d) are intxxpaated herein by this : reference. (d) el se. In any action or prpceedlrtg described.in or in connection with Section 16.02(b) andlor Seaton 16.02(c), ffa copy of this Lease is verified by Landlord (or someone acttng for Landlorc4) to be a teas and correct copy of this Lease- (and such copy.shalt be conclusively presumed. to be true and correct by virtue of such vertficatton), then. the. f~gng of the original of this Lease shall not t~ necessary, notwithstanding any statute; rule of txfurt of law, custom or practice to the contrary. Tenant hereby. releases to LandloM, anyone acting. for Landlord, and all attorneys wluo may... appear for'1'enant all errors in protx~dure regarding the entryof judgment or judgments by confession or ctlaaerwtse and atl liability therefor. The right to enter judgment or judgments by confessinn or otherwise by virtue of the warrants of attorney contained-In this Lease .and to enforce alt of the other provisans of this Lease :may be exercised by any assignee of Landlord's-right, title, and interest in this: Lease in such: assignee's-:own name, notwithstanding any statute,. ruts of court or .law, custom or practice !o the contrary. (e) Waiver. Tenant expressly waives (to the extent legally permitted to be waived): Davenportslt0lianOven-eapttalCity-Final June 17, 2008 1 Trat#-tman/C30 25 (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 anytights under this Lease; (ii) the benefit of all laws (now or hereinafter in force) regarding any limitation as to the goods upon or time, wHhin which distress is to be made after the removal of goods, and Tenant further relieves Landlord of the obligation of proving or identifying such goods, it being agreed that all goods of Tenant, whether or not upon the Premises, shall be liable to distress for rent; (iii) the right to issue a writ of replevin for the recovery of any goods seized under a distress for Rent or Levy or seek. to recover any goods attached upon an execution for Rent, damages, or otherwise; (iv) the right to delay execution on any real estate that may be levied upon to collect any amount which may become due under the terms and conditions of this Lease and any right to have the same appraised; Tenant hereby authorizing the Prothonotary or Clerk of Court at Landlord's instance to enter a writ of execution or other process upon Tenant's voluntary waiver and agreeing that said real estate may be gold on a writ of execution pr other process; (v) ail' rights under applicable law authorizing the sale of any goods. distralned for rent aY any time .after seven {7) days (or other applicable statutory period) from said distraint without-any appraisement and condemnation thereof; {vi) the right to any spedfic notice required under certain dreumstances, or anyother notice required or otherwise provided by statute as a condition to commencing summary proceedings or an action for possession, or to terminating this Lease or retaking of possession, Tenant hereby agreeingthat the respective notice periods provided for in this Lease. shall be suffident in any such case; and {vii) all rights of redemption under applicable law. (f) Insolvency. Notwithstanding Tenant's obligation to pay Minimum'Rent, Percentage Rent,'and Additional Rent as of the first day of each month during the Term, in the event that an ingolvency, bankruptcy or similar proceeding is filed by or against Tenant or Guarantor {rf any), Tenant shall be obligated. to'pay ail: such Minimum ReM, Percentage Rent; and Additional Rent on a ratable basis from the date of the commencement ofany such proceeding through- the end of the month in which such proceeding is commenced. Furthermore, notwithstanding anything cenfained herein to the ~ntrary, in the event that a bankruptcy or similar insolvency proceeding is filed by or against Tenant, anil Landlord is subjected' ko any avoidance'or similar claim under Chapter 5 of the Bankruptcy Code (as defined herein) of otherwise in or connection:.. with such. proceeding, Landlord sha8 have or may assert any and alt-claims against Tenant or its trustee (or similar representative) to the fullest extent permitted by this Lease. Section 16.03 m `s. (a) .Damages.. If Landlord elects to terminate Tenant's right to possession under this Lease but .not to terminate #his Lease, Landlord may relet the Premises (or any part thereof) for the account of Tenant at such rentals: and upon such terms and conditions as ILandlord shall deem appropriate (which maybe less than or exceed the balance of the Term) and, to the extent Landlord receives the Rent therefor, Landlord shall apply the Rent first to the paymentof such' expenses' as Landlord may have incurred in recovering possession of the Premises-(Mduding, w8hout-limitation;.legal expenses and attorneys' fees) and for putting. the Premises into good ostler and repaMng or remodeling or altertng the same for reletting; and any other expenses, rent concessions; commissions, ar-d Changes paid, assumed, or incurred by or on behalf of Landlord in connedJcn with reletting-the Premises.{collectively, "Coats of Reletting"), and thento the fulflNment of Tenant's covenants under: this Lease. Tenant covenants topay to Landlord Rent up to the time of termination of Tenant's right to possession under this Lease and, thereafter and untiLthe end_of the Term, the equivalent of the amount of Rent under this Lease less the net avails of such reletting (if any) during tFte Game period, and the same shall be due and .payable by Tenant on the dates Rent is.due under this Lease.. Any celetting 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 Legge, Landkxd may at any time thereafter elect to terminate this Lease.. In any event, Landlord shall not be liable for,. and Tenants 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 net in excess of Rent provided for in this Lease. Landlord mayfile suit to recover any sums falling due under the arms of this subsection from time to time,. and no soft. or recovery:of any sums due Landlord hereunder shall be a defense to-any subsequent action brought for anyamount not Yeduced to judgment in favor of Landbrd. Notwithstanding anythirrgto the contrary contained herein, Landlord shall have no-duty tp mitigate damages irl: the event Landlord terminates this lease (unless prohibited by applicable state law).- Furihe-xnore, (I) Landlord is under no affirmative duty to maximize rent collected from .any replacement tenam or otherwise mitigate Landlord's damages, (ii) Tenant waives any legal w equitable fight or defense that Landlord mitigateits damages,:and (tit)xegardless of whether Landlord takes any action to mitigate Landlord's-damages, such termination shall operate to.accelera~:the entire balance of Rent due over the errtire tease Term, whidt shall become immediately due and payable by 'Gertant; abng with. all overdue Rent and charges. `the foregoing sentences shall survive the errnination of this Lease. (b) Benefit of the Bargain Damag If Landlord elects to terminate this Lease instead of terminating only Tenants 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 she. Bargain 'Damages" (as reasonably determined by .Landlord): - (i) the present value of the projected Rent payable. by Tenant under this Lease that would have accrued for the balance ofi the Term (Additional Rent projections to be based on the Additional Rent which wouki have been. payable pursuant to this Lease for the full calendar year prior to the calendar year in .which the default occurred, increasing annually. on the first of :each year after such calendar year at the rate of six percent (&°k} per annum compounded if any such increase is not otherwise set forth kr this Lease),. plus (lip any other arnountg necessary to compensate Landlord for all detriments proximately caused' by Tenant's failure to per#orm its obligations underthis Lease, indudingreasonabte attorneys' fees, plus (iii} interest on all sums due Landlord at the Default f2ate (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' condttion, market conditions, the period of time the Premises may remain vacant before Landlord is able to relet it to a suitable replacement tenant, and: the Costs of Relettkrg that Landlord may incur in orderto enter into a replacement lease). DavenportsttalianOven-GapttalGity-Final June ~7, 2fit18 i TrachtmarUGO 26 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 subsectbn (b), Landlord relate the Premises for an effective -Rent higher or lower than the Rent assumed for purposes of calculating the Benefit of the Bargain Damages, the Benefit of the Bargain Damages shall not be recalculated and Landlord shall be entitled to retain all of the proceeds of such reletting. (c) Default Rate. The "Default Rate" means the highest amount allowed by applicable law. Any amount of Rent which is notpaid by Tenant to Landlord wkhin five (5) calendar days after it Is due shall t-earinterestat the Default Rate. Section 16.04 1andt~d's Self-H In addition to Landlord's rights to self-help set forth elsewhere in this Lease,. (t at any time:Tenant fails to perform any of its obligations under this Lease in a manner reasonably satisfactory to Landlord, Landlord shall have the right to perform such obligations on behalf of and for the account of Tenant Landlord shall give Tenant atJeast three (3) days priorwritten notice of its election to self-help except in the event of emergency, for which no priornotke shall be required. tlcon demand by Landlord, Tenant shelf reimburse Landlord for its costs and expenses incurred in exercising sz3lf-help, -plus interest at the Default Rate from the dale Landlord performs such oWfgatiom..Landbrd's performance of any of ' Tenant's obligations shall not constitute a release or waiver of Tenant from such of>Agation. Section 16.05 Landlord's Defeuk. Except as otherwise provkled in this Lease,. Larxilord shalt be in default under this Lease If Landlord fails to perform any of its Lease obligatkns and said failure continues for a period of thirty (30) days after written notice frrom Tenant to Landlord ..(unless such failure cannot reasorrabty:t>e cured within thirty (30) days and Landlord shall have. commenced to cure said failure within thirty (30) days and continues diligently to pursue the curing of the same). ff Landford shall be to default :under this Lease. and,: If as a consequence of such default, Tenant shall recover a money Judgment against Landlord, such judgment shall tre satisfied only out of the proceeds of sale received upon execution of such Judgment and levied thereon against the right, title, grid interest of Landlord in the Shopping Center(as the Shopping Center may then t>e encurnbered) and: Landlord shall not. be liable for any deficiency. In no event shall Tenant!have the right to levy execution against any property of Landlord oflier than L2ndkxrl's right, UUe, and interest in the Shopping Center. In rro event shall Landlord be responsible for or be Uableto Tenant for any obnsequsntial or special damages that occur as a result :of Landkxd'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 obtigation to pay Rent are irxlependent covenants in all respects. irl the event that Landlord transfers tts interest in the-Shopping Center, tfie transferorLandlord shall rx>f have any further liabiliFy or obligations under this Lease after the date of the transfer and Temant-shall look solely to Landlord's successor for performance of the conditions; obltgat[ons and covenants set forthln this Lease. Section 16.06 Leaa! lacnsn~gs. (a) Imthe event that (i) Landlord retains counsel and/or institutes any suit against Tenant for violatbn of or to enforce any of fire covenants or conditions of this Lease, or {li) Tarrant Institutes any action against Landlord for violation of any covenants or condition. s of this.. Lease, or (Ut} either party insUfutes a suit against the other fora dedaretion of rights hereumder; or (iv) either party irtten+enes In any suit.tn wh~h the other is a party to enforce or protect fts interests or rights hereunder; then the prevailing patty in any such suit shall be entftled to all its costs, expenses and t~sonabie attorneys' fees in connection therew4th. (b) In the event a proceeding is f8ed by or against Tenant under any chapter of the United States Bankruptcy Code, as presently existing or as may be amended (the "Bankruptcy Coda"), or Tenant makes-an assignment for the . benefit of :creditors, or commences or otherwise becomes the subject. of any insolvency, receivership, or similar proceeding, Landlord shall tre entitled to recover from Tenant or any trustee, custodian, receiver, assignee, or other. representative acting on Tenant's behaB, all of Landlord's costs,. expenses, arxJ reasonable attorneys' fees incurred in or in connection with any such proceeding. In addition to any other sums due and owing by Tenant undehthis Lease, such costs, expenses, and reasonable .attorneys' fees shall constitute (1) an obligation of Tenant .hereunder and (ti) a component of any cure claim assertat>le by. Landlord under 11 U.S.C. § 365(b) oc otherwise. Section 16.67 Landlord's Right to Assume Lea~ge and Purchase Tenant's Leasehold1nterssts. As a specifically Barg;§ined for right hereunder, 7 Tenant makes i3n assignment forttte ber-efit of creditors, files of suffers the filing against it of a petition under any chapter of the Bankruptcy Code, or if proceadirtgs far reorganization or composition with creditors under any federal qr state law are instRuted 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 to this :Lease pursuant to 11 U.S.C. §365 or otherwise, Landlord shall have the right of first refusal tp purchase and assume this Leaseand 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 "Thud Party Offe~'). which Third Party Offer Tenamt:or Tenar-t'a trustee (as the case niay be) deems acceptable, Tenant or Tenant's trustee shall first delivers copy to Landlord ("Landlord's 12FR:Mofice"). Landlord shad thereafterhave the,right.. to assume and acquire Tenant's .Leasehold Interests described in L'andlord's RFR Notice an the satire terms and conditions as setforth in the Third Party Offer: {b) Within thirty (30) daysfiollowing Landlord's receipt of Landlord's RFR Notice, Landlord shah 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 refuse[ with respect to the transactbn described in Landlord's RpR Notice. 1f 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 Leassitold Interests exclusively to Landlord 13avenportslt>1ii8nOvem-CapitalCity-Fnai , June 17; 2l)0$ 1 Trachtman/GO 87 in accordance with the terms and conditions set forth in the Third Party Offer. K Landlord fails timely to respond to Landlord's RFR Notice or declines to ezerdse 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 Tenants Leasehold Interests described in Landlord's RFR Notice to the proposed purchaser (the "ThiM Party Purchaser") on the same terms and conditions set forth to 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 subjectto Phis right of first refusal provision, such that any future assignment of this Lease by the Third Party Purchaser orany successor thereto, shall be and remain subject to the right of refusal herein granted to Landlord. (c) The parties hereby specifically acknowledge and agree that the right of first refusal granted to Landlord herein is not intended to operate, and sha0 .not be construed, as a provisbn that prohibits, restrkts; or conditions the assignment of this Lease within the meaning of 11 U:S:C. § 985(f) or any similarstatutory provision. ,action-16.08 Shooalna Cie t~t„Lease. Tenant agrees that this Lease is a "lease of real property in a Shopping Center" as such term is used in the Bankruptcy Code, and that neither Tenant's interest in this Lease nor in any estate: created hereby shall pass to :any trustee,.. receiver, assignee for the. benefit of credftors, or otherwise except as may be specifically provided therein. Nothing contained in this Section 16:08 shall be deemed n any manner to Iimif Landbrd's rights and remedies under the Bankruptcy Code. Section -16:09 Resection of the Lease. tdotwithstanding any other provision of this Lease, in the event Tenant rejects this Lease under the applicable provisions of the Bankruptcy Cade, :Landlord shall be entitled to a claim for damages: under this -Lease tct the full extent provided bySection 502(b}(6) of the Bankruptcy Cod9; without reduction based on Landlord's failure to mitigate damages, and Tenant hereby specfically waives any rights {i) to assert that Landlord has a duty to mitigate damages, (ii) to otsject to any claim filed or asserted by Landlord in Tenant's bankruptcy proceeding on the grounds that Landlord figs a duty to mitgate damages and-has txeached such duty; in whole or in part, andlcx (iii} #o assert the existence of any such duty to mitigate-.against Landlord in any tankruptcy or hon-bankruptcy proceeding involy#r-g the part#es to this Lease or the Guarantor (if any). ARTICLE 17: SUBORDINATION; ATTORNMi~NT; ESTOPPEL CERTIFICATE Sect#on -17:01 Suboedfnation gf lease. F~ccept as hereinafter provided, Tenant. agrees that this Lease fs 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 bf trust, and to the #merest thereon, .(ili):all modifications, consolidatbns, renewals, replacements and extensions and futureadvances made thereunder {(ii) and (fii) are oofiectivery referred Eo as "Mortgage"). Such sutxxdination shall apply regardless of whether such lease or Mortgage now exists or may hereafter be created with regard to all or anypart of'the Shopping Center.: Such subord#nation shall be effective without the execution of any further instrument. Tenant also agrees. fihat any holtler of such tease or Mortgage ("Mortgagee") may elect to have this Lease prior tc any lease or lien of i~ Mortgage and, in the event of such election and upon notification by such Iessoror Mortgagee to Tenant to that effect, thisLease shah 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 andlor Mortgage. Section 17x)2 Tenants ~t,~o_rnment. In the event of any foreclosure of or the exercise of a power of sale under any Mortgage covering the Premises or: in the event of the termination of any lease referred to in Section 17.01 wheretn Landlord is the lessee, Tenant shall:attom to 9nd recognize he 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 l.zndlord, Landlord's essor, or Mor9egee, Tenant shall execute and deliver whatever instruments>may be required to carry out the intent of Sections 17.01 and 17.02, ar-d In the event Tenant fails to do so within: fifteen. (15) days after demand in ~vrttir-g, Tenant shall be deemed to have committed an Event of Default. - Any document executed by Tenant evideneing subordination of this Lease. shall provide that LandloM's Mortgages, or such purchaser of Landlord's interest, or Landlord's lessor shall not be (i} liable for any action or omtsslon of any prior landlord (including Landlord} underthis:Lease, (i#) su#jeot to any off sets, :claims or deferues which Tenant might have against prior landlord (including Landlord), (iu) bound by any.Rent which Tenant might have paid for more th8n the current month to any prior landlord (including Landlord}, (iv) bound by:any amendment or modification of this lease or any other agreement concerning this Lease:made without Mortgagee's or purchaser's written consent, andlor (v) responsible in any way for any Securlry Deposit which:was delivered to Landlord but was not subsequently delivered to Mortgagee ofpurchaser. Section 17.04 F,.atoowel Certificate: t/Vithin fifteen {15) days afterwriften request try Landlord, Mortgagee, or any purd~aser of Landlord's interest in this Lease; Tarrant shall execute and. deliver to Candled, Mortgagee; purchaser, or to such other.. addressee(s) as Landlord may designate (and Landlord, Mortgage, purchaser, and any such addressee(s) may rely thereon), a statement #n writing in form and substance satisfactory. to Landlord; korgagee, and/or purchaser (herein called "Estoppel Certificate"), certifying as to such matters as may be reasonably requested by Landlord,.:Mortgagee, andlor purchaser. Tenant expressly agrees that, at arty time, Landlord may assign its interest #n the Estoppel Certifk:ate to its prospective or existing transferee of all of any part cf Landlord's Mterest in the Shopping Center or this Lease, or to any of Landlord's oavenportsitaliBnOven-Capaalcity-Final : ilune 17,2008 1 Trachtman/G0 28 lenders, who may act in material reliance thereon. Tenant's fa~ure to provide timely an Estoppel Certificate shall constitute an acknowledgment by Tenant that the statements contained in such cert~cate are true and correct without exception and my be relied upon by Landlord, Mortgagee, and any prospective or existing transferee of all or any part of Landlord's interest in the Shopping Center or this Lease, and may also be deemed an Event of Default by Landlord. Section 17.05 LandioM's Rl4hts of Alienation. Landlord reserves the right to sell, lease or sever the ownership of or Utle tv the various sections of the Shopping Center andlor to place separate Mortgageson said sections. Tenant shall execute from dme to time such instruments reasonably. required by Landord and Mortgagee to effectuate'the provisions of this Section. ARTICLE 18: MISCELLANEOUS Section 18.01. Interpretation. - (a) do s. The captions, table of contents, .and index of defined terms appearing in this Lease are inserted only as a makter of convenience and in no way define, limit, construe, or describe the scope. or intent of such Sections or Articles of this Lease. (b) Landlorcl:and Tenant: Defined. If more than one person or corporation is named as Landlord or Tenant in ::this Lease and executes ;the same as such: or becomes Landlord or Tenant, :then the words "Landlord" or "Tenant" wherever used are intended to refer to all such persons or corporations,. and the liability of such persons or corporations for compliance with and perlormanoe of aN the terms, onvenants, and: provisions of this Lease shall be Joint and severel. (c) Use. of Pronoun. 7'he 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 indNiduais or corporations. l"he ttieoessary grammatical changes required to matte tlleprovisions of this Lease apply -in ttie plural number where there is more them one `Landlord or Tenant and to corporations, associations, partnerships, or individuals; mates'or females, shall in all instances be assumed.as thoughi in eachcese fullyexpressed. {d) Construction:of_Lease. Although the printed provisions of this Lease weredrawn by Landlord, this Lease shall-not be construed for or against Landlord or Tenant;:rather, this: Lease shall be interpreted in accordance with the general tenor of the language tn;an effort to reach the intended result. Section 18:02 -Quiet Enloe 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 rxmditfons on Tenant's part to ba observed and performed, Tenant shaft peaceably and quietly hold and enjoythe Premises forthe Term without hindrance or interruption by Landlord or any other person or persons lavrfully claiming by, through, Or under Landlord, subject, nevertheless, to the terms and conditions of this Lease, and any Mortgage, teases and other matters to whicfi this :Lease is subject or subordinate. Section 18>03 N©t~, ices. - Any notice, demand, request, approval, conssnt, or other instrument which may be or is required to be given under this Lease ("Notice") shag be in writing and sent to the:address{$s) set forp~ inthe Fundamental Lease:Provislons by postage prepaid, registered or certified :mail (return receipt .requested), or bynationally recognized expedited delivery. service which provides proof of delivery. if mailed, Notice shall t>e deemed to have been given onthe date vrhen actually recehred or refused. or, in the case of Not[ce delivered by natianaNy recognized expedited delivery sQrviCe, when received, Landlord may also deliver any such Notice to Tenant by deNvery in parson at-such notice address or at the Premises and, in such event, Notice shall t>e deemed to have been giver wheh so delfYerBd, the affidavit of the persa~n making personal delivery shall be conducive proof of delivery and of the delnrsry time artrt dater Nvtices:given by Landlord maybe given on Rs behai# by Agent or by any attorney for Landlord or Pi9ent. AnyNotiCe.property sent to Tenant-shall be deemed effective whether or not a copy is sent to the address designated In the fundamental Lease Provisions to receive a copy. Alt Changes of notice address requested by TenanC shall only be valid' and.binding on Landlord if executed by a duly authorized officer,'partner, or owner. of Tenant. Section 18.04 Re if fhe ownership of the Shopping Center is in a -Real -Estate Investment Trust ("12EI7"'), Landbrd and Tenant agree that aN Rent shalhquatifyas "rents from real properfy" within the meaning of Section 858(4) of the Internal Revenue Code of .19813; as amended (the "Code") .and :the. U.S. [?epartn-ent of Treasury Regulations promulgated thereunder (the "Regulations"). Should the Code, or the Regulations, or :interpretations thereof by .the Internal Revenue Service contained in the Revenue Rulings, be changed so. that any-Rent nO longer qual8fes as 'rent from .real property" for the purposes of Section 85S(d) of the Code: and the Regulations, other than by reason of the appl~ation of Section 856(dx2xB) or 856(d)(t5) of the Code or the related Regulations; such Rent shall be adjusted so that if will so qustify; provided, however,'that-any adjustments required pursuant to this Section shall be made so as to,produce the equivalent (in economic terms) Rent as payable prior to such adjustment and that such:adjustnlents shall not result in any increase in Tenant's Rent. 3ectlon18:06 $ecigrocal: Easement Asrreement: Tenant understands and agrees with Landlord that, notwithstar-ding anything to the contrary. contained in this Lease, the Shopping Center (induding, without limitation, ifis Common Areas and ttte Premises) is and shall be subject; _. :subordinate, and otherwise junior to any teciprocal 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 DavenportsltaliaaOven-CelstalCfty-Final Jane 17, ^s008 1 Trachtman/G0 29 (such easement agreements herein collectively called the "REA"). Section 18.06 Retatbnship of Parties. Nothing contained in this Lease shall be deemed or construed as creating the relationship of principal and agent, .partnership, or joint venture between the parties hereto or cause Landlord to be responsible in any way for Tenant's acts, debts, or obligations. Section 18.07 Successors. Except as otherwise specifically set forth in this Lease, all rights, obligations, and liabilities herein given to or imposed upon Landlord, Agent, Tenant, and Guarantor shall extend to and bind the several respective heirs, executors, administrators, trustees, receivers, legal representatives, successors and assigns of such parties; .however, no rights shall inure to the benefit of any assignee, legal representative, trustee, mcefver, {agates, or other personal representative of ?anent unless he assignment to such party has been consented to by Landlord in writing. Suction 18.08 Survival of Obligations. Ali of Tenant's obligations accruing during the Term pursuant to Sections 4.04, 4.05, 4.06, 5.01, 5.02, 7.03, 7.07, 8:08, 1.1.03, 11,05, 11.06, 16.03, 18.08, and as otherwise specifically set forthin this Lease,.shall survive the expiration or earlier termination of the Term. Sectbn 18:09 $rok_er'~CQmmLs Landbrd and:Tenant represent and warcank that they have had no dealings, negotiations, or consultations with respect to the Premises, the Shopping Center or this transaction with any broker or finder except Agent and that, with the exception of Agent, no Ixoker or flnder called the Premises or any other space in the Shopping Center to Tenant's attention for lease. fn the event that any broker orfinder other than Agent daims to have submitted the Premises or any other space in the Shopping Center to Tenant, to have induced Tenant to lease the-Premises, or to-.have taken part in any Beatings, negotiatbns, or consultations with respect to the Premises, the Shopptng Cerit~, or this transaction, tttan'the party having failed to disclose such contact will be responsible for and`wiH defend, indemnify, and :save the other party~and Agent harmless from and against all costs, fees :(including attorneys' fees), expenses, IiabHtties, and daims incurred or suffered by such party and/or Agent as a result thereof. Such agreement shalt survive the expiratbn or earlier termJnatbn of this Lease. Section 18.10- nvalidity: SeveratHlity. It is the intention of the parties hereto thatrf any provtsbn of this Lease is capable of two cronsWctions, one of which would render'the provision invalid and the .other of whidr would render the. provision valid, then the provision shall have the meaning or meanings which would render it valid. ff any term, condition, or covenant of this Lease or the application thereof Eo any persons or circumstances shall, to any extent, be invaNd or unenforceable, the remainder of'this Lease or the application of such term or provlsk-n to the persons or circximstatx~s, other than those as Ito whk:h it is held invalid or unenfomeabie, shall not ba affected thereby, and each term, condition, and covenant shall be valid and enforced to the fiullest extent permitted by law. Furthermore, each covenant, agreement, obligation and other provision contained In .this :Lease is and shall be deemed and cwnstrued as a separate and indepent9eM covenant of the party txwnd by, undertaking, ormaking the same, and not dependent on any other provision of this Lease unless:expressly so provided.. Section 18:'11 Tune of.tha Essence. Time is of the essence wRh respect to the perrormance of the respective obligations of Landlord and Tenant set forth in thts :Lease. Section 9897 4ipalicable.Law. The: laws of the state in which the Shopping Center is located sha11 govern the validity, performance,. and enforcement of :this Lease. Any party to this Lease instituting legal suH 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 YYaiver. 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 wanner of any tx~eaoh of .any Lease covenant, term, agreement, or condition sha11 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 nr>t be deemed to be a waiver of any preceding breach by Tenant of any Lease covenant, temp, agreement, or condition, -other :than the fatlure of Tenant to pay the particular Rent so accepted, regardless of Landlord's knowledge of such preceding txeach at the time of its acceptance of the Rent. Landlord's waiver with rasped to one or more tenants or occupants of the Shopping Center shall not constitute a waiver in favor of any other. Landlord's consent kt any act by Tenant requiring Landbrd'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 18.74 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 shalt not 6e bound by any endorsement or statement on any check orany letter accompanying any check or payment and no such endorsement, statement or letter shall be deemed an accord and satisfaction, :whether suds check or letter is forwarded to Landlord's lode box or directly to LandioM, Agent or elsewhere. Furthermore, Landlord or-Landlord's bank may accept such check or payment without prejudice to Landlord's rights and remedies to recover the balance of Rent or pursue any DavenportsMalianOven-CapitalCity-Final June 17, 2008 1 TrechtmanlGO 30 other right or remedy available to it. Section 18.15 Corporate Tenants. If Tenant's form of organization is as an entity (rather than a natural person), the persons executing this Lease on behalf of Tenant hereby covenant and warrant that: Tenant is a duly constkuted entity qualified to do business in the state in which the Shopping Center is located; all Tenant's franchise, corporate and other Ifenable taxes have been paid to date; ail future forms, reports, fees, and documents necessary for Tenant to comply with applicable laws wHl be filed by Tenant when due; and such persons are duly authorized by the governing body of such entity to execute and deliver this Lease on behalf of the entity. t3ection 18.16 Recording. This Lease shall not be recorded and Tenant shall not record a short form or memorandum of lease; however, Landlord shall have the right to record a short form or memorandum of lease, at Landlord's expense, at any time during the Term, and Tenant shall execute same. Section 18.17 Astent of Landlord• Service Providers. (a) Agent. of Landlord. PREIT Services, LLC and/or PREIT-Rubin, Inc. has acted as Landlord's agent ("Agent") in connection with the execution of this Lease and shall not in any event be held liable to Landlord or to Tenant for the fulfillment or ran-fulfillment- of any of the terms, covenants, or conditions of this Lease or -for .any action or proceeding that may be taken by Landlord against Tenant or by Tenant. against Landlord. Any waiver of Landlord's liability hereunder (including any waiver of subrogation rights) shall apply with equal force and =effect as a waiver of <Agent's liability. (b) Servir~ Providers. Any services which Landlord is required to furnish pursuant to this Lease may, at Landlord's option; be furnished from Nme to timer in whole or in part, by employees of Larrdtortl or Agent or its employees or by one or more third persons heed by Landlord or Agent. =Tenant agrees that upon Landlord's written request, it wNl enter into direct agreements wtth Agent or other parties designated by Landkxd for the fum~hing of env such services required. m be furnished by Landlord, inform and content approved by Lsndbrd, provided, however, that no such contract shall result on an estimated basis in Tenant having to-pay in the aggregate more money on account of Its•occupancy of the Premises under rite terms of this Lease, or having to receive fewer services or senrkses of a Lesser quality than ii is presently entitled to receive under this Lease. Section 18.18 finalization of Chames. Notwithstanding anything to the contrary contained in this Lease, Tenant's failure to ob)ect to any statement, invoice, or bill rendered by Landord within a period of one hundred eighty (180) days after Tenant's receipt shall constftute Tenants acquiescence with respect thereto and shell render such statement; invokae, or billing a-final and bind'mg account 'between Landlord and Tenant. The foregokrg provision shall supersede any right ~to audit or .request supporting documentation from landlord which may otherwise be provided by this Lease -and IS ncsi interxled to grant any such right to Tenant not otherwise expressly provided elsewhere.ln this Lease. Section 18.49 financial lnformatlon. Within twenty (20) days of Landlord's written request, Tenant agrees (i) to delNer to Landlord such financial information concerning Tenant, Guarantor and Tenant's and 6uarantats business ,operatiocis as Landkxd, any Mortgagee, prospective mortgagee;-purchaser, or prospective purchaser, may request and in a form acceptable to such requester; and/or (ti) to provide Landlord with written authorization to perform a credit check of Tenant and>or Guarantor on a forrn acceptable to Landlord. If the financial or credit rating of 'tenant and/or Guarantor is not acx:eptabie to Landlord, Landlord shall have .the right to cancel this Lease ff Tepant refuses to execute or supply such addtional assurances and/or guarantors as Landkxd shall require within thirty (30) days after Landlord's request, which request may not be made -after Landord delivers possession of the Premises to Tenant. After Landlord delhrers possession of the Premises to Tenant, tenant's failure to provide Landlord with a financial statement:and/or credit check authorization shall constitute an Event of Default. If Landlord exercises its cancetlatlon right, this Lease shall be deemed null arrd void, each of the parties shah be released from any other or further liability, any Security peposit shall be refunded to Tenant without interest, and neither party shaft have any liability to the other by reason of such caraeliation. Section 18.20 Tenant's Guarantor. Attached hereto as Exhibit i3 is a Guarantee of Lease executed by Henry W. Davenport {"Guarantor"). Tenant acknowledges that Landlords would not have executed tt~ris Lease wig Tenant unless Guarantor agreed to execute the Guarantee. Landlord and Tenant further agree that in the event. Landlord, in its reasonable Judgment, detenrr{nos at any time that Guarantor's credit worthiness, economic strength; or financial status falls below an acceptable level, or if Guarantor breaches or otherwise repudiates its obligations under the Guarantee, or ff any bartlwptcy or other simNar proceeding is filed by or against Guarantor and not dismissed withkr sixty (tit?) days thereafter; or ff Guarantor is an individual and Guarantor dies or becomes incompetent, then Landlords may, upon written demand to Tenant, require Tenant within thirty (30) days thereafter to deliver to Landlord alternative or additional security In a form end substance .reasonably satisfactory to Landlord so that Landlord will not be deprived of adequate assurance of Tenant's financial ability to comply with its obligations imposed by Lease. Failure to submit timely such. alternative or additional security shall be deemed an Event of Default. Section 18.21 Notice to Mortoaaee: performance of Landlord's Ubliaations. If Landlord or Mortgagee fonnrards to Tenant written notice of the existence of a Mortgage, then Tenant shall, so long as the Mortgage is outstanding, be required to give to Mortgagee the same notice and opportunity to correct env DavenportsftaNanoven-CapitalCity-Final June 17, 2008 \ TrachtrnaNGO 31 default as is required to be given to Landlord under this Lease, but Tenant may issue its notice of default to Landlord and Mortgagee concurrently. Tenant shall accept performance of any of Landlord's obligations hereunder by Mortgagee. Section 18:22 Unavoidable Delay,. 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 or materials, failure of power, restrictive governmental laws or regulations, pandemic or viral/bacteriological outbreak, riots, insurcection, war (whether actual or threatened), leak of acx;ess to the Shopping Center or Premises due to evacuation or temporary closure ;(including evacuation or temporary closure of the Shopping Center or Premises by Landlord, government, or.police order due to a perceived, threatened, cx actual unsafe condition as determined by Landlord, government, or police), damage or governmeritai order, fire or other casualty or other reason of a similar or dissimilar nature beyond the reasonable control df the party delayed in performing -work or doing acts required under the terms of this lease (an "Unavoidable Delay"), tthen performance of such act, but not Tenant's obligation. to pay Rent, shall be excused for the.period of the Unavoidable l7eiay. The occurcene of :an Unavoidable.Delay shalt not operate to excuse Tenant from completing construction of the Premises within timeframe set forth in Article 2 of this Lease unless Tenant-gives written notice to Landlord of the nature and claimed number of days of the Unavoidable Delay within ten (10j days of its occurrence, and Landlord, upon its reasonable atisfactbn, shall extend the period of time for Tenant's Work equivalent to the number of days of actual delay. After -the Rent Commencement Date;. an Unavoidable Delay shall riot excuse Tenant from the timely .payment of Rent and other sums due by Tenant under this Lease, and such Unavoidable-Delay shall not extend the Term. Delays or failures to -perform resuftiryg from adc of funds or the unavailability of-a particular contractor or personnel shall not be - deemed' Unavoidable Delays. Section 18.23 Pr1or Lease. {a) Prior Lease.. Tenant (s presently occupying the Premises pursuant to a lease agreement with Landlord {the aforesaid agreement and any amendments thereio beingherelnafterreferred to as the "Prior Lease'). (b) Termination: Unless the Prior Lease has teen terminated prior to the Rent'Gommencement Date, the execution of this Lease shalt be deemed to satisfy the .requirements with-respect to notice of terrrrination set forth anywhere in the f'nor Lease and, therefore, the Prior Lease shall terminate on the day pror to the Rent Commencement Date of ttUS Lease. without the necessity of any other or further notice to or from eittoer party. Notwithstanding the foregoing, in the: event Tenant is relocating and Tenant holds over under the Prtor Lease beyond the termination of the Prior Lease, Tenant will tie subject to all holdover obligations pursuanCto,the terms of the-Prior Lease including, but hot limited to, the payment of all rent and other charges set forth thereto. (c) failure io Cplnoly. In the event Tenant has failed to'comply with any of its obligations under the Prior Lease and such faNure is continuing, Landlord may treat such failure as having occurced antler this. Lease and shall have. the right to exercise any and all of landlord's nghts and remedies setforth in'this Lease and/or avaNeble o it at law or in equity. (d) Release. As an inducement to Landlord to execute this Lease, Tenant hereby releases and forever discharges landlord from aA manner of action, causes of action, suits, covenants, controversies, agreements, promises, damages,. claims, and demands, at Jaw or In equity, which Tenant has or may have: against Landlord arising out of the : Prior Lease: Sectio»:'16.24 A»ti-Terrarisr~ Law. (a) Tenant represents and warrants to Landlord as follows:. (i) neither .Tenant, its constituents or affiliates .nor any of Jheir respective agents (collectively, the 'Tenant Parties") are in violation of any law relating to tercorism' or money laundering inducting, but not Limited to, Facecutive' Order No. 13224 on Terrorist FJroancing, the IJ.S: 'Bank Secrecy Act, as amended by the Patriot Act, the Trading wKh the Enemy Act, the International Emergency Economic Powers Act and all regulafons txomulgated thereunder, a~ as amended from time to time (collectively, "Anti-Terrorism LBw"); - (tt) no action, proceeding, investigation, charge, claim, report, or notice-has been filed, commenced, or threatened against any of the Tenant Patties alleging any vitiation of any Anti-Terrorism Law; (iii) none of the Tenant Parties has, eRer due inquiry, knowledge of-any fact, event, dreumstance, skuation or condition which could reasonably t>e expected to result in any action, .proceeding, investigation, large; claim, report, notice. or penalty being filed, commenasd, threatened or imposed against any of them relating to any'vblation of or failure to comply wRh any Anti- Terrorism Law; (iv) none of the Tenant Parties is a "Prohibited t'erscn": A Prohibited Person means any of the following:. a. a person or entity that is "specialty designated" on the most current itst published by the U.S: Treasury Department Otl'ice of Foreign Assets Control or which is owned, controlled by or eating for or on behalf of any such person or entity; b. a person or: entity vrtth whom Landlord M proh~ited from deaBng by any Anti-Terrorism Law: or c. a person or entity that commits„tFrreatens, or conspires o cornmi! or supports "terrorism" (as defined. in any AnU-Tercortsrn 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-Terrorisrn Law; or b. Engages in or conspires to engage in any transaction that evades oravoids, has the purpose of evading or avoiding pr attempts to violate any of the prohibitions of any Anti- Terrorism Law. - . DaverrportsitalfanOVen.GapitalClty-FinaF -June 17, 2009 1 Trachtrnan/GO 32 (b) Tenant covenants that It shall not: (q conduct any business or transaction or make or receive any contributbn of funds, goods, or services in violation of any Anti-Terrorism Law; or (ii) engage in or conspire to engage in any transaction that evades or avoids, has the purpose of evading or avoiding or attempts to violate any of the prohibitions of any Anti-Terrorism Law. (c) Tenant agrees to promptly deliver to Landlord (but in any event within ten (10) days of Landlord's written request) any certification or other evidence requested from time to time by Landlord, in its reasonable distxetion, confirming Tenant's compliance with the foregoing requirements. Section 18.25 NVaiver of Jurv Trial Landlord and Tenant hereby waive all right to a Uial by jury in any litigation related to this Lease including any mandatory counterclaim or cross claim. Section i$:25 Confidentiality. It is agreed and understood that Tenant may acknowl@dge :only the existence of this Lease by and tf@tween Landlord and Tenant and that Tenant may not disclose any, of the terms and provisions contained in this Lease to any tenant or other occupant to the Shopping .Center or to any .agent, employee, subtenant, or assignee of such tenant or occupant. Tenant acknowledges that any! breach by Tenant 'of the, agreemens set forth fn this Section shall cause Landlord irreparable harm. The terms and provisions of this Section .shall survive. the termination. of this tease {whether by lapse of time or otherwise). Seation 18.27 Renewal AOtions. (a) Provided that Tenant Is not in default •hereuntler at the time of (each] exercise, Tenant shall have and is hereby granted two (2) sep8rate options to extend the Term of this Lease upon-the terms, covenants; conditions and :,,. provisions. set forth fierein for two (2) periods of five (5) years each; provkfed that at the time an option to renew is exE•trcised, the Term of this Lease shall t>e in effects - (b) 'Such options shall be exerclsaLNe by Tenant giving written notice to Landlord of its Intention to exercise the same at least seven (7) months prior to the expiration of the then current Term: Upon receipt by Landlord of'such notice, provided that Tenant shall then have the right to exercise. sucfi option, the Term of this Lease shall be extended in accordance with the provisions thereof, without the necessity of any further actor documentation by Landlord or Tenant. In the event Tenant faits to exercise any such option within the time and in the manner aforesaid.(regardless of whether such failure shall be a result of Tenant's not having the right to :exercise such option), then this right and option shall terminate and be null and void without the necessity of any further act or docx,rnentation by Landlord or Tenant, and the Term of'the Lease shall terminate in accordance with the provisons set forth elsewhere herein. (c) During the option terms; Tenantshall pay Landlord Minimum Rent as follows: Time Period Annual Amount ~o„Qthiv 4~mount From the 121'r month through the 1.80"' month $130,000.00 $:10,833.33 From the 181" month through the 240th month $140,Q00.00 $11;868.67 (b) During the option terms, Tenant shall pay Percentage:Rent asfoltows: Ttme Perioi) #3reak POtnt P@rCeniaae Rate From the 121°im0»th through the 180"' month $3,250,000.00 Four Percent{4%) From the 181't month through the 240"' month.- $3,500:000!00 Four Percent (4%) Section 18.28 tfauor License. Landlord is in the priycess of acquringa tetaN Liquor License {License No.'R-20526) {"Liquor Lic@nse") for use in the Premise. The acquisition of the Liquor License -shall be concluded by use of an entity affiliated with Landlord ar Pennsylvania Reaf Estate Investment Trust but Landlord will permk Tenant and its employees to be designated as the operator of such company along with such officers as Landlord may choose to designate, so that Tenant's employees will be authorized to dispense alcoholic beverages in the operation pf its restaurant on the Premises by means of using such entity. eenefiotal ownership-and control of such entity shall remain wholly with Landlord or an entity related to Ft. Tenant's uSe of such Liquor LK:ense shall ba coterminous with the term of this tease. [)wring its use of the liquor License, Tenant shall comply with all app0cabie laws, rules, and regulations required to Utilize th@ same and payall applicable fees, costs, and expenses relating to such use. If Landlord is able to acquire the tiquorLicense, Landlord and Tenant shall enter info agreements prepared by Landlord's counsel, which shall provide that the license shall only be used on the Prr3rnises and shall be returned fo Landlord upon terminaton, or earlier expiratlon of the Lease. The execution of such agreements shall be a condition. precedent 1o the use by Tenant of the Liquor License. In the event Landlord lies been unablet0 acquire the Liquor License by September 30, 2008, Tenant may delay its opening for business In the Premises until such acquisition has been made. tf such acquisition has not been mad@ by Decemt~er 31, 2008, T@nant may elect;o terminate this Lease. Tenant represents the Landlord that its officals da not have a criminal record and otherwis@ wsi meet all appt'x;able requirements -for operating. a retail liquor flcense in the state of Pennsylvania.. Tenant will use' its best efforts to timely execute any agreements required to Implement the foregoing paragrapfi. In operating the Premises, Tenant shall at its expense cause the complete: safisfaetion of any citaations that-maybe issued as a resuk of non-oompliarrce byTenant with DavenportsltaganOven-CapitalCity-Fine[ June 17, 2t>Q8 \ TrachtmaNGO 33 the appropriate use of the Liquor License. Section 18.29 Storage Space Landlord hereby grants to Tenant for the term (referred to as "Licensee" for the provisions of this Section) for the Term a license io occupy storage space number _ (the "Storage Space") as shown on Exhibit "A" attached hereto and containing approximately 17 square feet by 7 square feet. Landlord shall have no construction obligation wkh respect to the Storage Space and Tenant shall take possession of such Storage Space on or before the Required Opening date in "as-is" condition. Tenant shall pay Landlord a fee for the License in the amoum of Three Thousand Six Hundred Dollars (53,600) per+Lease Year (the "License Fee") payable in equal monthly installments on w before the first day of the month. In addition Tenant shall pay Landlord a proportionate share of Taxes pursuant to Sectlon 5.02 of this Lease based an the GLA of the Storage Space. Licensee shall pay such sums on or before the first day of the month. Tenant shall pay the cost of all utilRies consumed in accordance with the provisions of Article 6 of this Lease. Tenant's failure to make any of the payments set forth in this paragraph shall be considered an Event of Default and Landlord shall be entitled to all the right and remedies at law and in equity and as provided in Article 16 of the Lease. .Landlord and Tenant acknowledge that, except as spedficaily set forth in this Section, the Storage Space shall be deemed a part of the Premises and ail other references in the Lease to the PremLses shah mean and refer to and be deemed to Include the Storage Space. Notwithstanding the foregoing, restrictions on Landlord's management of Commpn Areas (including, but not limited to, restrictions affectlng visibility of the Premises and restrictons on the locaton of kiosks) and Tenant's signage rights shall not apply with respect to the Storage Space. Section'18.30 OI1 Storage Tanks. Tenant shall fiave the right, at a location reasonably approved by Landlord, to install one or more soy bean oil storage tanks for use by Tenant in the Premises. Such tanks shall be installed by Restaurant Technologies, Inc. in a - means and .manner approved In advanced by Landlord.Tenant shall toe sdely responsible for any leakage or spillage of oil from such tanks and Tenant will at its sole costs and expense promptly dean up any such spillage and shall indemnify, defend and hold Landlord harmless from the consequences of the use of such tanks including spilage or leakage therefrom. Such oWlgation shall survive the expiration or earlier termination of this Lease. Upon the termination of this Lease Tenant shall remove Uie oil storage tanks at fts sole costs and expense. Section 18.31 Asset Pwrchase Agreement. Pursuant to an asset purchase agreement executed between Landlord w its Agent and Tenant, Landlord has sold to Tenant for use in :the Premises certain equipment abandoned in place by the prior occupant of the Premises.. Suds agreement requires Tenant to make certain payments to Landlord and Tenant agrees to make she same, as additional rent under the provisions of this Lease. Among other items, the equipment and furniture being acquired by Tenant pursuant to such agreement includes the existing bar, storefront and tin oeiNng in the Premises. In the event Tenant vacates the Premises prior to the expiration of this Lease or this Lease is otherwise terminated prbr to its stated expiration date, or upon the expiration of the Term, Tenant agrees not to remove such items from the Premises but rather will convey to Landlord by means of a bill of sale, all Tenant's right, title and interest in and to the her and the tin ceiling which items .shall be valued at Thirty Five Thousand Dollars (535,000.00) and for which landlord shall pay Tenant:the -then unamortized portion of that value (amortized over the initial term of the Lease). Landlord shall make such paymentto Tenant within ten (10) days after Tenant executes such b111 of sale provided however to the event Tenant-owes any sums pursuant to the terms of this Lease, rather than making such payment Landlord may offset the amount :due Tenant pursuant to this Section against the amount owed by Tenant tv landlord. Section 18.32 Entire Aare ent. (a) Ti-is -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,;negotiatbns, arrarigements, 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, and this Lease supersedes and- cancels the same. Except as otherwise .provided herein, no subsequent alteration, amendment, change, or addition to this Lease shag toe binding upon Landkxd or Tenant unless reduced to wrking and executed by the party against which such subsequent alteration, amendment, change, or addition is to tae enforced. (b) Tenant hereby acknowledges that (i) this Lease contains no restrictive covenants or exclusives in favor of Tenant; (ii) this Leese shall not be deemed w interpreted to contain, by implication w otherwise,. any warranty, representation, or agreement on the part of Landlord that any department store, major tenant, w regional or national chain store or any other merchant shall open for business or occupy or continue to ocx;upy any premises in or adjoining the Shopping Center during the Term or any part thereof, w that Tenant shall generate a certain amount of Gross Sales, w that any feimtwrsable amount payable by Tenant shall be any specific amount; and Tenant hereby expressly waives all Balms with respect to the foregoing and acknowledges that Tenant is not relying on any such warranty, representation, or agreement by Landlord as a matter of inducement in entering into this Lease, as condition of this Lease, w as a covenant by Landlord. 'Section 18.33 Submission of Lease to Tenant. THE SLiBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHALL HAVE NO BINDING FORCE OR EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR LEASING OF THE PREMISES, AND SHALL NOT CONFER ANY RIGHTS OR IMPOSE ANY OBLIGATIONS UPON EITHER PARTY UNTIL THE EXECUTION BY LANDLORD AND THE DELIVERY'OF AN EXECUTED ORIGINAL COPY TO TENANT OR ITS REPRESENTATIVE. Section 18.3-0 Aeknowledoement. Davenportsltagan Wen.CepitaiCity-Final June 17, 2008 \ Tract-trnan/GO 34 THE UNDERSIGNED ACKNOWLEDGES THAT IT FULLY UNDERSTANDS THE. CONFESSIONS OF JUDGMENT CONTAINED IN SECTION 18.112 AND THAT THE LANDLORD-TENANT RELATIONSHIP CREATED BY THIS LEASE IS COMMERCIAL IN NATURE. TENANT WAIVES ANY RIQHT TO A HEARING WHICH OTHERWISE WOULD BE A CONDITION TO LANDLORD OBTAINING THE JUDGMENTS AUTHORIZED BY SUCH SECTIONS AND AGREES THAT UPON THE OCCURitENCE OF AN EVENT OF DEFAULT LANDLORD MAY OBTAIN A .:JUDGMENT AGAINST TENANT WITHOUT FURTHER PRIOR NOTICE TO 1"ENANT, AND LANDL012D MAY THEREAFTER GARNISH OR ATTACH AND. PLACE A LIEN ON TENANT'S ASSETS OR PROPERTY WRHOUT PRIOR NOTICE- OR OPPORTUNITY FOR A HEARING. TENANT HAS CONSULTED WITH 'AN ATTORNEY REGARDING THE RIGHTS BEaNG WAIVED HEREUNDER, HAS BEEN FULLY At)VISED OF THOSE RIGHTS, AND KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS; OR TENANT :HAS HAD THE OPPtJRTUNITY TO CONSUULT WITH AN ATTORNEY AND KNOWINGLY, INTEI.LI~sENTLY AND VOLUNTARILY WAIVES THE OPPORTIlNfTY TO CONSULT WITH AN ATTORNEY REGARDING THE WAVER OF THESE RIGHTS AND NONETHELESS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGFITS. IN WITNESS WHEREOF, Landlord and Tenant, personally or by their duly authorized agents, have exeeuted this Leasa as of the date first-above written. LANDLORD: - PREIT SERVICES, LLC, Agent for PR GAt'ITAL CITY LIMITED PARTNERSHIP 8Y: pREIT SERVICES -< ,_ Authorized A9 _, " BY: BRUGEGpLDMAN EXECiTCIYE'VICE.PRESIDENT TENANi?: : DAVENPORTS ITALIAN O N, 1NC. By: Titls: Attest:: Title: Dav~peartslkNianO~r6ei-C6pitalE'.ity-Final. Julie l7, X408 1 TrachtrnanlGO 35' Z d0 l 3Odd .du 1191HX3 T ~-~. ~ ~ ~e. ~~ ~ ~ ~ ~.. ~~~' ~ ~ ~~ ~ ~ g ~_ ~ ~ . ~~~ ~ ~_ ~~~~~$~~~~~~W~ E J ~~~ ~~~ ~~~ ~~~~ ,,~ .~, ~--~ ~ f._._. Z ----~ ~ e --.~, Z d0 Z ~ J`dd ~~b'~~ 1181 HX~ V ~.-. ~ ~ w m~~ a~im~`° ~~ ~ ~' ~~~~ 8 ca r~ QE«. g ~ yTo ~~ c~`~ m ~~ Q E c E y~ }~ ~~ H rn L' 0.a~Y~.Q C C N y~ ~, ~ro ~mEm~~~'oo~ m~-`~~~ c ~ m a~ ~~~ a~~~~~~~~~ J q y~~ W ~~a~ m ~~ n m y N "O 9pp7 .~ N N ~y y C O ~ tz7 ~! r~ G _ _ ~ ~ m:~ 3 ~ ~ ~ a E ~ t35 > ~ .~ ,~ m ~ vi 3 ~ m ~o &ti m ~~~ g ~U y c mtQ ~~ U ~ ~~~s ti~S: w 0 D b SC r Y EXHIBIT B: UTILITIES Section 6.01 of the Lease provides for the inclusion of this Exhibii as the basis for the determination of utilities used by Tenant in the Premises and the monthly payment therefor. (a) Electricity. Landlord w(II provide, or cause to he 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;. pcovkied that Tenant shall rrot be obligated to pay to Landlord an amount In excess of the amount which Tenant would otherwise be obligated to pay N Tenant were served directly by the incumbent public utility, municipality andfor governmental body or authority supplying suoh utlity. Landlord reserves the right from time to time to designate an alternative electrik generation supplier to serve-.the Shgpping Gaoler and the Premises, and Landlord shall have the right from time to time to change tl~e identify of sut:tt supplier as Landlord deems appropriate. To the extent Landlord receives electric service from an alternative •eleCtrlc generation suppfler, landlord's charges to Tenant for electric service shall not in any event be below Landbrd`s aatuat oust to provide such servfoe fo Tenant. Landlord reserves the right to collect an additional administrative Charge not to exceed fifteen percent (1b95) of Tenant's electricity charge described above. Such administrative charge shall be subject to an Increase of.up to three perCeM (39'0) per Lease Year. Tenant shall also be responsible for any taxes,. surcharges, impositions; penahies and. other additional charges attributable to the utility service being supp{fed, provided that . taxes, surcharges, impositions end other dtarges are required by law to be collected from Tenant or are pajd by Landlord to its supplier of the utiiftysenrice in question. (b) Qther_lJtilities. In the event Landlord shall provide .gas, sprinkler or water and sewer servkx+ to the Premises, Tenant .covenants and agrees tb pay the gas, sprinkler or water and .setae( Charge (both minimum acrd otherwise) and any other tax, rent,. levy, connection fee or meter or other charge whtch now or hereafter is assessed, Imposed'or may become a Nan upon the Premises, or the Shopping Center, pursuant to law, order or regulatkxt made or' based In connection with the use, consumption, maintenance or supply of gas, sprinkler or water and sewage, or the gas, sprinkler or water or sewerage connect~n or'system. Tenant shall pay aU charges for services used by ii and supplied by Landlord, a public utiity or public authority, or any other person, firm or corporation. Tenant shall pay the fixed amounts shown in 1.fkl(g) of the Lease, or if not speciflcallyset forth, at rates determined by Landlord#rom time to time, which'shafl opt exceed the -rate charged by the local utjlitY for simtlar service. (c) Meter. in the event the Premises does not presently contain an electric or other utility meter, Landlord may instatl such. meter or at Landlord's request Tenant shall, within forty-flue (45) days attar receipt of such. request, at its sole cost and expense, install a meter of a type and at a kicatfon approved in advance by Landlord. davenportei;aNanOven=CapHalGity~Fins9F June 17, 24oti \ Trachtman/G0 37 EXHIBIT C: HEATING, VENTILATING, AND AIR-CONDITIONING Section 6.07 of the Lease provides for the inclusion of this Exhibit as the basis for he determination of utilities and HEATWG, VENTILATING, AND AIR-CONDITIONING ("HVAC; as defined, may include any or all el®ments of heating, ventilating andlor air-conditioning) used by Tenant fn the Premises and the monthly payment therefor. Landlord shall not supply: HVAC to the Premises and Tenant shall use the existing HVAC unit In the Premises, or install anew unit ff none ex(sts. Landlord, in its sole discretion, shall have the right, from time to time, to attar the HVAC systerrts and equipment serving the Shopping Center orany part, thereof, including the Rrernisea, and'Tenant agrees to execute and deliver to landlord such documentation as may be required to e[fect such alteration: Tenant shall not at pny time. overtwrden or exceed the capacity of the HVAC systems and equipment .serving the Premises. tf Tenant ,desires or if Landbrd deems necessary installation of any additional equipment or revision of the design Wf the existing equipment -because-crf intemtal loading causing the temperature in the Premises #o exceed the temperature in the Common Areas or other tenant spaces, such installation of addttional equipment or revisions of design shall be subject to Landlord's prior approval of Tenant's plans and specifications and shah be at Tenant's sole-cost and expense. If Landlord approves such additional equipment or revised design andlor ff Landlord provides such additional :equipment or revised design, Tenant agrees to pay. Landlord, on demand, the cost for providing such additional equipment or revised design.. tenant shall operate its heating and air conditioning so that the occupied space temperature of the Premises wilt be the same as that in the adjoining mall, and so :that the non~occupled space temperature of the: Premises will be sufflcient to Insure adequate freeze protection of domestic water and sprinkler systems when necessary. Tenant shall operate. ventUatbn so that the relative air pressure In the Premises wNl tae slightly less than-in the'adJolning mall as ,required by Landlord. Dever-portslteNandven-GepttalGriy-Final June 17, 2QOti \ TrachtmanlGO ~g EXHIBIT D: GUARANTEE OF LEASE THIS GUARANTEE made this day of , 2008, by Henry H. davenport, having an address at 5220 Simpson Ferry Road, Mechanicsburg, Pennsylvania 17050 ("Guarantor") in favor of PR CAPITAL CITY LIMITED PARTNERSHIP, having an address at Go PREIT-Services, LLC, The Bellevue, 200 South Broad Street, 3'" Floor, Ptuiadelphia, PA 19102 ("Landlord"). Back rg ound ~n the day of , 2008, Landlord entered into an Agreement of Lease. (hereinafter, together with ail prxx amendments thereto are .collectively referred tows the "Lease") wkh DAVSNPORT"S ITALIAN OVF_N,1NC. ("Tenant")for certain premises in the CAPITAL CITY MALL, as more par#icularly described in the Lease (the "Premises"). Landlord would not -have entered into the Lease unless Guarantor fled agreed to guarantee to Landlord all obligations of Tenant pursuant to the Lease,. NOW, THEREFORE, in consideration of the execution of the Lease and other-good and valuable consklerations, and` intending to be legally bound, the undetsigned hereby absolutely uncondiUonaliy and irrevocably becomes surety to Landlord,. its- suocessors, eodorsees or assigns, for 4he full, faithful and. punctual performance of each and ali of the terms, covenants, agreements and conditions of the Lease to be kept and performed by Tenant, in accordance with and within the time prescribed- by the !:ease, whether at maturity or by declaration, :acceleration or otherwise, as well as other liabiflties now or hereafter contracted by Tenant to Larxltord, together wkh costs and expenses of oaNeetbn incurred by Landlord, including, wthout limi~tion, reasonable attorney's fees Incurred by Landlord in connection wkh any of the foregoing,{hiereioafter referred to as the "Llabil'rties"): The duration of this guarantee shall be determined by Section 18 below. Tfie undersigned further agrees as foNows: 1: The liability: of the undersigned ender this Guarantee. shalt be ;primary under any right. of action which shall accnae to :Landlord under the Lease, and landlord may, at ks option, proceed inklally sod dicectiy against the undersigned without having to commence any action or having obtained any judgment against Tenant. Guarantor ;hereby acknowledges that this Guarantee is an absolute,. irrevocable and unoonditional guaranty of payment and ;performance and not merely of collection. Landlord may join the undersigned in any aotbn or proceeding against 7enarit. 2. The undersigned waives (a) ati notices, including but: not limked to (i) notice of acceptance of this Guarantee; (ii) :notice of :presentment, demand fix .payment, or default py Tenant; (b) all defenses, .offsets -and counterclaims which the uniierslgned may at any time have jointly or severally to any of the Liabilities, (c) trial by jury and the right thereto in .any proceeding of any kind, whether arising on or out of, under or by reason of this. Guarantee, or any other agn3ement or transaction between the undersigned, Landlord andlor Tenant; and (d) all notices of a financial condtion or of any adverse or other change fn the financial condk(on of Tenant. 3. Landlord shall fiave the right from time to time, and:at-any time in its ole discretion, without notice to or consent from the undersigned, or without affecting, lmpalrirsg, or discharging, in whole or in :part, the Ilab~ities of tt+e undersigned hereunder,. to modify, change, extend, alter, amend, or supplement, in any respect whatever, the Lease or any agreement or transaction between Landlord cad Tenant or between Landlord and anyother party liable for the Liabilities; or anyportion or provision thereof; to granf extensions of time and other indulgence of any kind to Tenant; to compromise, release, substitute, exercise, enforce or fail or refuse to exercise or enforce any daims, rights, or remedies of any'kind which Landlord may have at any time against Tenant or any other partydiable for the Liabkkies,_ar any (hereof, or wi{h respect io any security of any kind held by Landlord at any time under any agreement or otherwise: Nor shall ttie Liabifkies of the undersigned be affected, impaired or discharged, in while or In part; by reason of any action whatsoever taken by Landlord including, without limitation; sale, lease, disposition, ltquldation or other reali~at'wn (which may be negligent, wil{tul or otherwise with respect to any security to which Landlord may at any time have: any interest or against any'other party liable for alt or any part of:the Liabilities). '4. 'This Guarantee shah be a continuing guarantee and the [iabilky of Guarantor hereunder shall in noway tie affected, modified, dimintstied, impaired or terminated by reason of any of the f©Ilowing, whether or trot notices thereof is given to Guarantor. (i) any subletting of all or any portion of the Premises. or any assignment or other transfer of Tenant's- interest in the iisase, (fi) any consent, approval,' waiver or other-action, naction'vr: omission under or concerning the- Lease, (Ili) any modifications, renewals, extensions or amendments of the Lease, (tv) any dealings. or transactions or matter or thing oax~rring between Landlord and Tenant; or any of therm, (v) any bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors,. rereivershlp or trusteeship affecting Tenant or ks successors or assigns, (vi) the release or discharge of Tenant from the performance or observance of any of the terms; covenants or conditions contained lrr the Lease pursuant to the terms thereof, by operation of law, by reason of any of the events descrtbed in Paragraph (v) above; or otherwise, (vti) :any change in :retatianship between Guarantor and Tenant,. (viii) the default or failure'of Guarantor to perform any of its'obllgations set forth in this Guarantee, (ix) any action which Landlord may take or fail to take against Tenant by reason:of any waiver of, or failure to enforce,. any. of the rights' or remedies reserved to landlord in the tease, or otherwise;„(x) arty failure or refusal of Landlord tp re-let the Premises or any part or parts thereof in the event that Landlord shall: obtain possession of:the Premises: after Tenant's insolvency or default, (xi) any failure to collect rent thereof under any such relettrng, and (xii) any other circumstance or condition that may result in a discharge, limitation or reduction of (lability of a'surety or guarantor: 5. If Landlord shall be obligated by any bankruptcy, insolvency ar other legal proceedings to repay to Guarantor or to Tenant, or to any trustee; receiver or other. representative of eitt-er of tt}em, any amounts previously paid by Guarantor pursuant to his' Guarantee,. this Guarantee .shall be deemed relnstatert to she extent of that repayment made by Landlord. Landlord shall not be required to litigate or othewise dispute ks obligation to make such repayments jf, in good faith and on the advice of counsel, Landlord believes that such obligation exists_ #~venportsttaNanOverr-CapitatCity-Final June 17, 2008 } Tract~trnarr/GO 39 6. GUARANTOR COVENANTS AND AGREES THAT IF THERE IS A DEFAULT BY TENANT UNDER THE LEASE, THEN GUARANTOR HEREBY EMPOWERS ANY PROTHONOTARY, CLERK OF COURT OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR GUARANTOR IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR ANY LIABILITIES, OR ANY GHARGES HEREBY RESERVED OR DESIGNATED AS LIABILITIES OR ANY OTHER SUM PAYABLE BY GUARANTOR TO LANDLORD UNDER OR BY REASON OF THIS GUARANTEE, AND TO SIGN FOR GUARANTOR AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTION OR ACTIONS FOR THE RECOVERY OF SAID LIABILITIES, CHARGES AND OTHER SUMS, AND IN SAID SUIT OR IN SAID ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST GUARANTOR FOR ALL OR ANY PART OF THE LIABILITIES SPECIFIED IN THIS GUARANTEE AND THEN UNPAID INCLUDING, AT LANDLORD'S OPTION, THE LIABILITIES .FOR THE ENTIRE UNEXPIRED .BALANCE OF THE TERM OF THE t1=ASE, AND ALL OR ANY PART OF ANY OTHER OF SAID CHARGES OR SUMS, AND FOR INTEREST AND COSTS'TOGETHER WITH REASONABLE ATTORNEY'S FEES OF 5%. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAYBE GONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF SAID LIABILITIES OR SUCH OTHER SUMS, CHARGES, PAYMENTS, COSTS ANb EXPENSES SHALL FALL DUE OR BE IN ARREARS, AND SUCH ROWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE TERM OR DURING ANY EXTENSION OR RENEWAL OF THE LEASE. in any:action to confess judgmentfor LiabUities in arrears, 4andlord shall first cause to be filed in such action an affidavit made by tt cu someone Scting for it setting forth the facts necessary to authorize the entry of judgment, of which. facts such affidavit -shall be conclusive evidence, and if a true copy of this Guarantee (and of the truth of the copy such affi~tavit shah be sufficient evidence] be filed in such action, it shalt not be Necessary to file the original as a warrant of attorney; any rut of Court, custom or practice to the contrary notwithstanding. (INITIAL). CyUARANI'OR WAIVER. GUARANTOR SPECIFICALLY ACKNQWLFDCsES THAT GUAR TOR HAS VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WANED CERTAIN DUE PROCESS RIGHTS TO A PREJUDGMENT HEARING BY AGREliING TO THE"TERMS iOF THE FOREGOING PARAGRAPHS- Rl'-'C3ARDING CONFES510N OF JUDGMENT. GUARANTOR- FURTHER SPECIFICALLY AGREES THAT IN THE EVENT OF DEFAULT, LANDLORD MAY PURSUE MULTIPLE REMEDIES INCLUDING OBTAINING A MONEY JUDGMENT FOR PAST DUE AND ACCELERATED L1At31LtTiES AND EXECUTING UPON SUCH JUDGMENT. FURTHERMORE, GUARANTOR SPECIFICALLY WAIVES ANY CLAIM AGAINST LANDLORD AND LANDLORD'S COUNSEL FOR VIOLATION OF GUARANTOR'S CONSTITt1TIONAL RIGHTS IN THE EVENT THAT JUDGMENT IS CONFESSED PURSUANT Tb THIS GUARANTEE: 7.. If Landlord shall'emplay counsel to enforce Guarantor's obligations under this Guarantee or any part thereof, Guarantor agrees to pay on demand all of CalxUord's costs in connectscn therewith, whether suit be brought or not; including, without limitation, reasonable attorney's fees and disbursements. $, The undersigned and each of them agree and consent to the exclusive junsdicCwn as set forth in the Lease in any and. all actions and -proceedings whether arising hereunder Or under any other agreement or undertaking. -The undersigned waives, and agrees not to assert,:¢y way of motion, as a defense, or otherwise, in any such sutt, action or proceeding brought Iri any such court, any.claim that Guarantor is slot subject personalty to the jurisdiction of such courts, that Guarantor's property.ls exemPE or immune from. attachment or execution, that the suit,: action Or ..proceeding is 'brought in an 'inconvenient forum, that the venue of the'sulE, action or proceeding is improper or that this Guarantee qr the subject matter hereof may not be,enforced in or by such court, and further agrees to waive, to the fullest extent permitted under .applicable law, the benefit of any defense that. would hinder, fetter or delay the levy, execution or collection of :any amount to which .Landlord. or its successors or assigns are. entitled pursuant to the final judgment of anycourt having junsdietion. 9. :Guarantor hereby consents to service of process by Certified ar registered mail at Guarantor's .address as provided in Section 15 belgw or in any other manner-permitted. by law. Guarantor agrees that service in the foregoing manner shalt be deemed, in every respect, effective service of process upon Guarantor and be taken and held to ba valid personal'service. upon, and persons delivery to, Guarantor. Guarantor agrees that Guarantor's sutxnissign to jurisdiction and consent 3o servtce of process by mailis made for the express benefit of Tenant. 10. The waiver of any right by Landlord or failure o exercise promptly any right shat) not be construed as the waiver of any other right to: exercise the same at any time thereafter. All rights and remedies of Landord are cumulative and -.not attema#Ive. {f :any .part hereof is determined to be illegal or unenforceable, such part shall be deemed strictcen (or reformed. as necessary to eUrnlnate such illegal or unenforceable part but no further) aril the remainder hereof shall be unaffected and shall remain in full force and effect. It this Guarantee in its entirety shall be held ineffective ar unenforceable by any. coi.,ri of competent jurisdiction then the undersigned shall be deemed to be a tenant under the Lease with thesame force and et7ect as tt the undersigned had executed the Lease as Tenant or were named as a.jointtenant therein andvrere jointly and severally liable with Tenant thereunder. This Guarantee shall be a continuing guarantee and security agreement and shall continue and remain in fuN force and effect until all of the Liabilities have been completely and satisfactorilyperformed or otherwise discharged by Tenant; the undersigned shall -not in any way be released of its obUgation to Landlord under this Guarantee so long as any claim of Larrdiord against Tenant4s'not satisfied, settled. or discharged in full: This Guarantee shall survive the expiration of the term of the Lease. Y 1. 'Guarantor represents and warrants to. Landlord that: (A) Guarantor has full power, authority and Jegai right io cause this Guarantee to be signed and delivered,. .and to perform and observe the provisions of #his Guarantee, including, without limitation, the payment of all moneys hereunder. {B) This Guarantee constitutes the legal, valid anct binding cbligatgon of Guarantor, and is enforceable in accordance with.Its farms, except as such enforceabUity may be fimtted'by reason of (i) any applicable bankruptcy,. insolvency, reorganization, moratorium or similar laws, ordinances, rules or regulations affecting the enforc~meM of creditors' rights.generally, or (fi) general prinaptes of equity. []avenportsltatianOven-CapitalCky-Final __ 3une t7, 2008 \ Trachtrnan/GO 40 (C) (i) Guarantor, as of the date hereof, is not In violation of any decree, ruling, judgment, order or injunction applicable to it nor any law, ordinance, rule or regulation of whatever nature, nor (ii) are there any actions, proceedings or investigations pending or threatened against or affecting Guarantor (or any basis therefor known to Guarantor) before or by any court, arbitrator, administrative agency or other. governmental authority or entity; any of which under (ij or{ii) above, if adversely decided, would materially or adversely affect Guarantor's ability to carty out any of the terms, covenants and conditions of this Guarantee. (D) Neither the execution and delivery of this Guarantee, nor the consummatbn of the transactions herein contemplated, nor compliance whh the terms and provisionshereof, oonfliot or will coMllot with or result in a breach of any of the terms, conditions or provisions of any order, writ, injunction or decxee of any court or governmental authority, or of - any agreement or instrument to which. Guarantor is a party or.bywhk~r Guarantor is :bound, or constitute or will constitute a default thereunder: 12. Landiord may, without notice, assign this Guarantee in whole or'in part. No assignment or transfer of the Lease or subletting of the Premises shall aker, eacUnguish or diminish the liability of the undersigned hereunder. 13. (Aj The liability of the undersigned shall be joint and severa-, shall bind the respective heirs, executors, administrators and personal representatives of the undersigned and shah inure to the benefit of Landlord, $s sucxessors and assigns. (6) No delay on the part of Landkxd in exercising any-right, power or privilege under this Guarantee, nor any far~ure to exercise the same, .shall operate. as a waiver of, or otherwise affect, any right, power or privNege of Landord under this Guarantee, nor shall any single or partial exercise tlaereof Prelude the further exercise of such, or the exercise of any other, right,.pawerorprivilege of Landlord under this Guarantee. (C) Neither any waiver or modification of any provisbn of this Guarentee, not any termination of this Guarantee, shall be effective unless in writing and signed by the Party against which the. waiver, modification or termination is sought to be_enforced, nor shall any waiver be applicable except in the specific.instance of which it is g(ven: (D) The validity and enforcement of the Guarantee shall tae governed by and construed in accordance with the Lease and such laws shall apply in any action. or proceeding arising ouf of or under this Guarantee. (E) AA remedies afforded to Landlord by reason of this Guarantee-are separate and cumulative remedies, and ft is agreed that no one remedy; whether. exercised by Landlord or not, shall be ..deemed to tae. in'exclusion of any .other remedy available to Landlord and shall not limit or prejudice any-other fegal or equitable remedy which Landlord may have: (F) If any provision of this Guarantee artt~e application thereof fo any person or circumstance shall to any extent be held veld, unenforceable ar invalid, then the remainder of this Guarantee or the application of such.provision to persons or circumstances other than those as to wtllda it is held void, unenforceable or invalid, shall not be affected thereby and each provision. of this Guarantee: sFaaR tae vaYd and enforceable to the fuAest extent permkted bylaw. Y4. Within fifteen (1S) days after written request from Landlorcl, the undersigned shall deliver to Landiord or its designee, an estoppel certificate in form satisfactory to Landlord and the undersigned executed by the undersigned confirming that this Agreement remains. in full force .and effect in accordance with its terms and ratifying the unde[signed's obligations hereunder. i5. All notices, demands, requests, consents, approvals or other commurfications (collectively, "Notices") desired or required to tae given under this-Guarantee shall be in writing, and, any law or statute to the contrary notwithstanding, shall be effective for .any purpose ff sent by recognised pvemight courier, prepaid, addressed as foilowS: If to Guarantor, to R'at; Henry H. Davenport 3220 Simpson Ferry Road Mechanicsburg, PA 17050 If to Landlord,'to R at: PREI'f SERVICES, GLC The Bellevue, Third Floor 200 South &oad Street. Philadelphia; PA 99102 Attention: General Counsel 1S: iJotwithstanding the foregoing the liability of the undersigned for Liabilities shell. be limited to those accruing during any twelve (12) month period during She Term of the Lease and attorneys fees and costs of coilectiort. All Notices shall tae deemed given or served on the -date on-which such Notice-has been received:. Any party to this Guarantee may change the..address. to which Notices shall be delivered to t and its representatives by notice in accordance with this Section 15. IN WITNESS WHEREOF, the ;undersigned has caused this Guarantee to be executed as of the day and year first above. written. Davenport&ItalianOveri-CatakaiCiEy-Final .lone 17, 20U8- \ Trat~-trr-aTr/G0 4f Witnesses: 7 DavenportsltalianOven-CapitalCity-Final June 17, 200$ ~ Trad-trnanfGO GUARANTOR: HENRY H. DAVENPORT Social Security #: 334342809 33 3 ~1- 42 EXHIBIT E: TENANT'S MENU DavenportsltalianOven-CapitalCity_Final June 77, 2008 1 T~trnaNGO 43 FIRST AMENDMENT OF LEASE RENT RESTRUCTURE AND EXTENSION THIS FIRST AMENDMENT OF LEASE (the "First Amendment"), made this ~~'' day of ~IAftid,ST , 2009, by and between PR CAPITAL CITY LIMITED PARTNERSHIP ("Landlord")and DAVENPORT'S ITALIAN OVEN, INC., t/a Davenport's Italian Oven, Inc. ("Tenant"). WITNESSETH: WHEREAS, by a lease dated July 2, 2008 (the "Lease"), Landlord leased to Tenant all those certain premises owned by Landlord situated in the Capital City Mall, bcated in Camp Hill, PA known and designated as Unit No. 0800 (the "Premises"), for a term of years upon certain terms and conditions as more fully set forth in the Lease; and WHEREAS, the Lease is scheduled to expire on January 31, 2019 (the "Original Expiration Date"); and WHEREAS, Tenant acknowledges that Tenant has failed to pay certain sums due and owing to Landlord of approximately Thirty-Four Thousand Five Hundred Sixty and 00/100 Dollars ($34,560.00) (such amount hereinafter the "Arrearages"); WHEREAS, LandloM and Tenant desire to modify the provisions of the Lease upon the terms and conditions hereinafter set forth, without limitation, the repayment of the Arrearages by Tenant to Landlord in accordance with the terms more specifically set forth in this First Amendment. NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties hereto, intending to be legally bound hereby, covenant and agree as follows: 1. Capitalized terms used herein but not defined herein shall have the meanings ascribed to such terms in the Lease unless otherwise modified in this First Amendment. 2. SETTLEMENT PAYMENT. In addition to Rent and all other payments required to be paid to Landlord by Tenant pursuant to the Lease, Tenant shall pay the DavenpoRsitaflanOven-CapCity-Amd-R2.DOC July 30, 2009 \ dmb ~ Arrearages to Landlord as follows (hereinafter the "Settlement Payment"): (i) Commencing as of July 1, 2010 and continuing June 30, 2013, Tenant shall pay, on the first (1") day of each calendar month, an amount equal to Nine Hundred Sixty and 00/100 Dollars ($960.00) per month. Tenants failure to make any Settlement Payment as provided in the preceding paragraph shall be deemed an Event of Default under the Lease, without the necessity of notice, and the entire Arrearages shall thereafter become immediately due and payable with interest at the Default Rate and Landlord shall have all rights and remedies granted to Landlord pursuant to the Lease at law and in equity. 3. Effective retroactively as of January 1, 2009 and continuing through December 31, 2009 (hereinafter "First Amendment Rent Reduction Period"), Tenant shall pay Landlord, in lieu of Minimum Rent and all Additional Rent and charges (excluding utilities and trash charges), gross annual Minimum Rent in an amount equal to Forty-Nine Thousand Five Hundred and Od/100 Dollars ($49,500.00), payable in equal monthly Installment payments of Four Thousand One Hundred Twenty-Five and 00/100 Dollars ($4,125.00). 4. Additionally, Tenant shall continue to pay Percentage Rent in accordance with the terms, covenants and conditions of the Lease; however, during the First Amendment Rent Reduction Period, Tenant's Percentage Rent Break Point shall be One Million Two Hundred Thirty-Seven Thousand Five Hundred and 00/100 Dollars ($1,237,500.00). 5. Thereafter, effective January 1, 2010 and continuing through the end of the Term, Tenant shall Minimum Rent, Percentage Rent and all Additional Rent and charges as provided in the Lease prior to the modification of the Lease in accorcJance with this First Amendment, however Tenant's Percentage Rent Break Point shall be One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00). 6 In the event at any time during the First Amendment Rent Reduction Period either (i) there is an assignment, pledge or hypothecation of the Lease, or sublease of the Premises, or other Transfer (as such term is defined in Section 15 of the Lease) of all or any part of Tenant's interest in the Lease or in the Premises (including, without DavenportaitaNanOven-CapCity-Amd-R2.DOC July 30, 2009 1 dmb 2 limitation, any change in control of Tenant or, if applicable, Guarantor, with or without Landlord's consent), or (ii) an Event of Default occurs, the First Rent Reduction Period shall end on the date immediately preceding the effective date of such assignment, pledge, hypothecation, sublease, Transferor the date of such default, whichever is applicable, and Tenant shall thereafter again be liable to pay to Landlord Rent, in the amounts set forth in the Lease prior to the modification of the Lease in accordance with this First Amendment. 7. Landlord is hereby granted the right to terminate the Lease by providing at least one hundred twenty (120) days' prior written notice to Tenant of its intention to do so ("Landlord's Notice"). In the event Landlord exercises its right to terminate, the Term of the Lease shall terminate on the date set forth in Landlord's Notice ("Early Termination Date"), as if said date was.the natural expiration date of the Term of the Lease. If Landlord exercises its termination right, the termination of the Lease pursuant to this First Amendment shall in no event release Tenant from any of its obligations applicable to the period prior to and including the Early Termination Date. Tenant shall fulfill all covenants and shall remain liable for all obligations under the Lease applicable to the period prior to and including the Early Termination Daie. Tenant shall also remain liable for all year-end adjustments with respect to Tax Rent, and the CAM Charge, if any, for that portion of the Year ending on the Early Termination Date, to the extent that such year-end adjustment(s) were not previously billed to, and/or paid by Tenant. Tenant shall pay all such adjustments within thirty (30) days after receipt of written demand thereof. In the event the Early Termination Date is a date other than the last day of any relevant time period set forth in the Lease, any amounts due and payable with respect to such time periods shall be appropriately prorated and such amounts shall be due and payable within thirty (30) days after the Early Termination Date. 8. The Term of the Lease is hereby extended for four (4) years, commencing February 1, 2019 and continuing through January 31, 2023 (the "Extension Period"). 9. During the Extension Period, Tenant shall pay annual Minimum Rent in an amount equal to One Hundred Forty-Two Thousand Five Hundred and 00/100 Dollars DavenportaltaNanOven-CapCity-Amd-R2.DOC July 30, 2009 1 dmb 3 ($142,500.00), payable in equal monthly installment payments of Eleven Thousand Eight Hundred Seventy-Five and 001100 Dollars ($11,875.00). 10. Additionally, Tenant shall continue to pay Percentage Rent in accordance with the terms, covenants and conditions of the Lease; however, during the Extension Period, Tenant's Percentage Rent Break Point shall be One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00) and Tenant shall continue to be Nable for the payment of all Additional Rent and charges, calculated from time-to-time, in accordance with the terms, covenants and conditions of the Lease. 11. The term of the Lease shall expire absolutely on January 31, 2023 without the necessity.for any notice whatsoever. On or before January 31, 2023, Tenant shall vacate and surrender possession of the Premises to Landlord in accordance with the provisions of the Lease. There shall be no holding over of the Premises by Tenant after January 31, 2023, unless Landlord and Tenant execute an agreement which provides for Tenant's occupancy after January 31, 2023. 12. It is agreed and understood that Tenant may acknowledge only the existence of an agreement between Landlord and Tenant pertaining to the Lease, and that Tenant may not disclose any of the terms and provisions contained in this First Amendment to any tenant or other occupant in the Shopping Center or to any agent, employee, subtenant or assignee of such tenant or occupant except as maybe required by law. Tenant acknowledges that any breach by Tenant of this paragraph shall cause Landlorci irreparable harm. The terms and provisions of this paragraph shall survive the termination of the Lease (whether by lapse of time or otherwise). 13. Except as herein provided to the contrary, all of the terms, covenants, conditions and stipulations contained in the Lease, including the confession of judgment contained therein and all other terms whether or not deemed personal covenants shall be continued with like effect and to all legal intents and purposes as if included in a new lease containing identical terms, covenants, conditions and stipulations as in the Lease except as herein modified, until the time of expiration of the term, and the same is hereby ratified and confirmed. DavenpoRBltalianoven-CapCHy-Amd-R2.DOC July 30, 2009 1 dmb 4 14. This First Amendment shall be binding upon and Inure to the benefit of the parties hereto and their respective heirs, successors, administrators, successors and assigns. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed on the day and year first above written. LANDLORD: PRER SERVICES, LLC, Agent for PR CAPITAL CITY LIMITED PARTNERSHIP _ BY• •~ JEFFREY A. LINN ~~ Executive Vice President TENANT: DAVENPORT'S ITALIAN OVEN, INC. By: Name Titte: ~'U^--'~-- Attest-.~~~////~~- Name•~~~ /~.~usi..CP/ Title: ~PJ7-Cfr4 ~ `/~7~fri,a4~c/~ DavenportsftaNenOven-CapClty-Amd-R2.DOC July 30, 2008 1 dmb 5 MARCUS & SHAPIRA r,~,r Ot~t13 OxFORn CeNrRe. 35'" FlAOR 301 QRAlCf S`17tBBT Plriseuaoli. PertrlsYWAaIA 152196401 (412)471J490 Du'leoe M. IJo~vat: Diroct Dial: (412) 33E~5214 By Certified and Regular Mail to: Kell Davenport 5220 Simpson Ferry Road Mechanicsburg PA 17050 Henry H. Davenport 5220 Simpson Ferry Road Mechanicsburg PA 17050 Fax: ({I2) 391-E758 June 21, 2010 By Hand Delivery to: Davenport's Italian Oven 3506 Capital City Mall Drive Camp Hill PA 17011 Re: Lease dated July 2, 2008 between PR Capital City Limited Partnership ("Landlord')and Davenport's Italian Oven ("Tenant') Dear Tenant: This Notice is being sent to you pursuant to Section 16.01 (a) and (g) of the above Lease dated July 2, 2008. Mr. Terly Kennedy and Mr. Mario Ventresca have referred this matter to us for collection. We represent PR Services LLC, the Managl.ng Agent for PR Capital City Limited Partnership, Landlord. As of June 18, 2010, Tenant is in default for failure to pay sums due under the Lease in an amount not less than $118,347.70 (due to Tenant's failure to comply with the First Amendment of Lease and Restructuring Agreement of August 26, 2009, this amount is subject to further adjustment). Unless the amount of $118,347.70 is received at the rent payment address (PR Capital City Associates LP, P.O. Box 92406, Cleveland OH 44193, or at the Capital City Mall Office) within ten (10) days from your receipt of this letter, we will proceed to take legal action to collect all amounts owing now and through the full term of the Lease, and all amounts due under the Guaranty of Henry H. Davenport, which is Exhibit D to the Lease. Very truly yours, arleae .Nowak Encl. CC: C. Uy T. McGrath Capital City Mall Davenport's Italian Oven, Inc. UNSWORN VERIFICATION UNDER 18 PA. C.S. ~ 4904 The undersigned hereby states subject to the penalties of 18 Pa. C.S. § 4904 regarding unsworn falsification to authorities as follows: I am a duly authorized representative of the Plaintiff identified in the attached Complaint in Confession of Judgment and that averments of fact contained in such Complaint are true and correct to the best of my knowledge, information and belief. Dated: ~'~"1~L ~ISf ~ 9 , 2010 By: ~-' De Lambert Senior Vice President -Legal PREIT SERVICES, LLC Agent for PR CAPITAL CITY LIMITED PARTNERSHIP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHII', Plaintiff, CIVIL DIVISION v. DAVENPORT'S ITALIAN OVEN, INC., Defendant. CERTIFICATION OF ADDRESSES ~ ~ ~ ~. ~ ~n ~_ ~ -~: Z~ ~ ~, ~+ ~ ;o ~i f f Darlene M. Nowak, 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 Davenport's Italian Oven is 5220 Simpson Ferry Road, Mechanicsburg, Pennsylvania, 17050. Date: August, 2010 ene M. owak CUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership l- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, v. DAVENPORT'S ITALIAN OVEN, INC., Defendant. CIVIL DIVISION No. 10 _~g0 ~,tVi t~~fw NOTICE OF ENTRY OF CONFESSED JUDGMENT FOR EJECTMENT TO: Davenport's Italian Oven, Inc. Please take notice that a judgment in ejectment has been entered against you by confession on the date below in favor of the Plaintiff for possession of property described as follows: Room 800 in Capital City Mall, located on the West side of Hartzdale Drive between Zimmerman Drive and Capital City Mall Drive, and bounded by U.S. Route 15 on the West and North. Date: RIo2~/o --T~-- Prothonotary, Court of Pleas of Cumberland C IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED ) PARTNERSHIP, Plaintiff, ) v. ) DAVENPORT'S ITALIAN OVEN, INC., ) Defendant. ) CIVIL DIVISION No. l0 - C 1 V i ! 7- ~1 COMPLAINT IN CONFESSION OF JUDGMENT FOR EJECTMENT Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow Pa. I.D. No. 43523 This Complaint concerns real property ) known as: ) Store No. 800, Capital City Mall ) Camp Hill, Pennsylvania ) Darlene M. Nowak PA ID No. 3 7093 MARCUS & SHAPIRA LLP Firm No. 145 One Oxford Centre, 35~' Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 r 1L? -07 ICE IN THE COURT OF COMMON-TI} ; S.?iA,, , OF CUMBERLAND COUNTY, PENN ?? t ? ;; JJ rr PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, `jl t{ No. 2010-05680 V. DAVENPORT'S ITALIAN OVEN, INC., Defendant. AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION THEREON Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow Pa. I.D. No. 43523 Darlene M. Nowak Pa. I.D. No. 37093 MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED CIVIL DIVISION PARTNERSHIP, Plaintiff, No. 2010-05680 V. DAVENPORT'S ITALIAN OVEN, INC., Defendant. AFFIDAVIT OF SERVICE OF NOTICES UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION THEREON 1. I, Darlene M. Nowak, hereby certify that I served upon Defendant a Notice Under Rule 2973.2 of Judgment and Execution Thereon in the within action by regular Mail, prepaid, and electronic mail, this 7th Day of October, 2010. 2. Attached hereto is a copy of the letter showing delivery to Defendant. Dated: November J, 2010 Respectfully submitted, S hen S. ubrow 'Darlene M. Nowak MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership Sworn to and su cribed before me this q?day of November, 2010. 0-y? Notary Public() COMMONWEALTH OF P`NNSYLVA"dIA Notarial Seal Kelly J. McDowell, Notary Public "tv, Of Pittsburgh, Allegheny County ^?rraission Expires Oct. 18, 2011 "ania Association of Notaries ar MARCUS & SHAPIRA U -P ONB OXFORD CBNTRB, 33" Pt om 301 GRANT STRBBT FTMOURGH, PENNSYLVANIA 13219-6401 (412) 471-3490 Fax: (412) 391-8738 Dwb"a M. Nowak. 6q. Dked Did (412) 338-3214 Bmail-. eowak@maro"a d pirs oom October 7, 2010 Mr. Kell Davenport clo Davenports Italian Oven 5220 Simpson Ferry Road Mechanicsburg, Pa 17050 Re: PR Capital City Limited Partnership v Davenport's Italian Oven Dear Mr. Davenport: Enclosed please find the letter that was mailed to you on September 28, 2010 to your home address, but which was returned as undeliverable to us today. A copy was sent to you by email today. Very truly yours, dene Nowak Encl. MARCUS & SHAPIRA Ux ONE OXFORD CENTRE, 35" Rom 301 GRANT STREET PITTAUROH, PENNSYLVANIA 15219-6401 (412) 471-3490 Dwie w M. Nowak DLed Dial: (412) 338-5214 Fax: (412) 391-1738 September 28, 2010 Mr. Kell Davenport 114 S. Lewisberry Road Mechanicsburg PA 17050 Re: PR Capital City Limited Partnership vs. Davenport's Italian Oven Cumberland County, PA; 2010-5681 and 2010-5680 Dear Mr. Davenport: I have enclosed a Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of Defendant's Rights regarding the Complaint In Confession of Judgment for Money; and a Notice Under Rule 2973.2 of Judgment and Execution Thereon, Notice of Defendant's Rights regarding the Complaint In Confession of Judgment for Ejectment. Please contact me if you would like to discuss this matter further. Very truly yours, arlene M. Nowak Dmn:srs Encl. cc: C. Uy (w/o encl.) Deborah A. Hughes, Esq. (w/encl.) 2080 Linglestown Rd. Suite 106 P.O. Box 961 Harrisburg PA 17108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. DAVENPORT'S ITALIAN OVEN, INC., Defendant. CIVIL TERM No. 2010-05680 NOTICE UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION THEREON Filed on Behalf of the Plaintiff. PR Capital City Limited Partnership Counsel of Reoord for this Party. Stephen S. Zubrow Pa. I.D. No. 43523 Darlene M. Nowak PA ID No. 37093 MARCUS & SHAPIRA LLP h Floor One Oxford Centre, 35 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 . . , . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. DAVENPORT'S ITALIAN OVEN, INC., Defendant. CIVIL TERM No. No. 2010-05680 NOTICE UNDER RAJLE 2973.2 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO: DAVENPORT'S ITALIAN OVEN, INC. A judgment for possession of real property has been entered against you and in favor of the Plaintiff without any prior notice and hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may remove you from the property at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your being removed from the property. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 800-990-9108 ~ Y J t September 2 2010 L? Stephen S. Zubrow Pa. I.D. No. 43523 Darlene M. Nowak PA ID No. 37093 MARCUS & SHAPHL64 LLP One Oxford Centro, 35m Floor 301 Chant Street Pittsburgh, PA 1521:9 out 471-3490 Attorneys for Plaintiff PR Capital City Limited Partnership CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION THEREON was served upon counsel of record listed below by United States mail, first class service, postage prepaid, this 9thday of November, 2010: Robert E. Chernicoff, Esq. Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg PA 17106-0457 aiadazt/aaz ene M.Nowak 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED ) CIVIL DIVISION PARTNERSHIP, ) Plaintiff, V. DAVENPORT'S ITALIAN OVEN, INC Defendant. No. 2010-05680 OF THELPROTHONOTARY 2010 DEC -6 AM 9= 30 CUMBERLAND COUNTY PENNSYLVANIA PRAECIPE FOR WRIT OF POSSESSION Filed on behalf of Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow Pa. I.D. No. 43523 Darlene M. Nowak PA ID No. 37093 MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Igq. av- ,L 44?? '21 zo .2 gl9 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, CIVIL DIVISION No. 2010-05680 V. DAVENPORT'S ITALIAN OVEN, INC. Defendant. PRAECIPE FOR WRIT OF POSSESSION To The Prothonotary: Please issue a writ of possession upon the judgment in ejectment entered by confession in the above matter for the following property: Davenport's Italian Oven, Inc. Store No. 800 at Capital City Mall 3506 Capital City Mall Drive Camp Hill PA 17011 CERTIFICATION I certify that: 1. This praecipe is based upon a judgment entered by confession; and 2. Notice pursuant to Rule 2973.2 was served on the Defendant on October 7, 2010 and more than 30 days have passed since service as evidenced by an Affidavit of Service filed of record. Dated: December Y , 2010 aY.ov - Cos4 ?s r, sa - ?a.co eo arlene M. Nowak MARCUS & SHAPIRA LLP Counsel for Plaintiff, PR Capital City Limited Partners CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe for Writ of Possession was served upon counsel of record listed below by United States mail, first class service, postage prepaid, this I" day of December, 2010: Robert E. Chernicoff, Esq. Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg PA 17106-0457 ene owak W2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP VS. No. 10-5680 Civil Term DAVENPORT'S ITALIAN OVEN, INC. Costs Attorney's $ 51.50 Plaintiff's $ Prothonotary $ 2.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) PR CAPITAL CITY LIMITED PARTNERSHIP being: (Premises as follows): DAVENPORT'S ITALIAN OVEN, INC., STORE NO. 800 AT CAPITAL CITY MALL 3506 CAPITAL CITY MALL DRIVE CAMP HILL, PA 17011 (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. _a-W D. Buell, Pro honotary, Common Pleas Court of Cumberland County, PA Date DEQ,E 6, 2010 .(Seal) 2 of 2 No 10-5680 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA. PR CAPITAL CITY LIMITED PARTNERSHIP VS. DAVENPORT'S ITALIAN OVEN, INC. STORE NO. 800 AT CAPITAL CITY MALL 3506 CAPITAL CITY MALL DRIVE CAMP HILL, PA 17011 WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att'y $ 51.50 Plff (s) $ Prothy $ 2.00 Sheriff $ Plaintiff (s) attorney name and address: DARLENE M. NOWAK, ESQ. MARCUS & SHAPIRA LLP ONE OXFORD CENTRE, 35TH FLOOR 301 GRANT STREET PITTSBURGH, PA 15219 412-471-3490 I.D. NO. 37093 Attorney for Plaintiff (s) By virtue of this writ, on the named appurtenances, and Where papers may be served day of . I caused the within _, to have possession of the premises described with the Sworn and subscribed to before me this Day of , So Answers, Sheriff' By Prothonotary Deputy