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11-1558
PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: Denis M. Dunn, Esquire Attorney I.D. #34583 The William Penn Building 109 Chesley Drive Media, PA 19063 (610) 565-2670 SILVER SPRING SQUARE II, L.P. One Independent Drive, Suite 114 Jacksonville, FL 32202-5019 Plaintiff vs. Jeff Roberts and Angela Roberts, h/w 11 Blacksnake Road Duncannon, PA 17020 and Rebecca Richmond 22 Blacksnake Road Duncannon, PA 17020 and Jessica Sabetian 450 Newport Center Drive Newport Beach, CA 92660 and Jean Claude Eenshuistra 277 Woodcrest Aliso Viejo, CA 92656 Defendants Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION N0.1)_15S? ', rnC0 ?i ' z r r-- cor I Ga = ?O x is C:) Mi 4 a NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. CS) Qm+ VIA00 Ta4?vr CA k It d& 63S? et, ASY .76.2 IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 (717) 249-3166 PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: Denis M. Dunn, Esquire Attorney I . D. #34583 The William Penn Building 109 Chesley Drive Media, PA 19063 (610) 565-2670 Attorney for Plaintiff SILVER SPRING SQUARE II, L.P. One Independent Drive, Suite 114 Jacksonville, FL 32202-5019 Plaintiff vs. Jeff Roberts and Angela Roberts, h/w 11 Blacksnake Road Duncannon, PA 17020 and Rebecca Richmond 22 Blacksnake Road Duncannon, PA 17020 and Jessica Sabetian 450 Newport Center Drive Newport Beach, CA 92660 and Jean Claude Eenshuistra 277 Woodcrest Aliso Viejo, CA 92656 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION NO. COMPLAINT FOR MONEY JUDGMENT 1. Plaintiff named above is a Delaware limited partnership Plaintiff's address is as stated in the caption. 2. Defendants named above are adult individuals who reside at the addresses referenced in the caption. 3. Plaintiff is the landlord owner of premises located at Silver Spring Square, 6416 Carlisle Pike, Space # H-11, Silver Spring Township, Cumberland County, Pennsylvania (the "Property"). 4. On or about May 17 2007, Defendants Jeff Roberts and Angela Roberts, h/w and Rebecca Richmond absolutely unconditionally guaranteed a Lease ("Lease") for the Property between an entity named ZPizza International, Inc ("Tenant") and Plaintiff. A true and correct copy of the original Lease is attached hereto, marked Exhibit "A" and made part hereof. 5. That absolute and unconditional guaranty is attached as part of the Lease as Exhibit "D" thereto. 6. On or about November 30, 2008, the Tenant assigned the Lease for the Property to BreTon, LLC. A true and correct copy of the original Assignment is attached hereto, marked Exhibit "B" and made part hereof. 7. On or about November 30, 2008, the remaining Defendants absolutely unconditionally guaranteed a Lease ("Lease") for the Property between an entity named ZPizza International, Inc ("Tenant") and Plaintiff. A true and correct copy of that guaranty is attached to Exhibit "B" as Exhibit "A" thereto and made part hereof. 8. The Tenant is and has been in default of the Lease and Assignment for having failed to make payments as and when required under both. 2 9. The Tenant has vacated the Property and, pursuant to the Lease terms, Plaintiff accelerated the balance owed under the Lease in accordance with the calculations set forth on Exhibit "C" attached hereto and made part hereof. 10. The amount currently due and owing and unpaid under the Lease is $499,801.71. 11. In addition, the Tenant is obligated under the Lease for Plaintiff's reasonable attorney's fees. Plaintiff has already incurred $3,531.00 in attorney's fees and estimates an additional $5,000 for preparing and filing this suit, taking a default judgment and executing on assets to satisfy the judgment. Plaintiff reserves the right to amend this demand in the event any Defendant contests liability or resists execution proceedings in any way. 12. Tenant has not paid the money owed as set forth above. 13. Defendants are liable to Plaintiff, absolutely and unconditionally, in the amount due under the Lease, i.e. $508,332.71. WHEREFORE, Plaintiff demands money judgment against Defendants, jointly and severally, in the amount of $508,332.71, together with costs and interest as allowed by law. tWELLM N, ICO, BROWN ROS BY: DENIS M. DUNN, ESQUIRE Attorney for Plaintiff 3 TABLE OF CONTENTS ARTICLE 1. INTRODUCTORY PROVISIONS .............................................................................................1 ARTICLE 2. PREMISES ......................................................................................................................... ......4 ARTICLE 3. TERM .................................................................................................................................. ......4 ARTICLE 4. RENT .................................................................................................................................. ......4 ARTICLE 5. TAXES AND ASSESSMENTS ........................................................................................... ......7 ARTICLE 6. TENANT'S CONDUCT OF BUSINESS ............................................................................. ......7 ARTICLE 7. USE OF PREMISES ........................................................................................................... ......7 ARTICLE 8. COMMON AREAS ............................................................................................................. ......7 ARTICLE 9. HAZARDOUS SUBSTANCES ........................................................................................... ......8 ARTICLE 10. ALTERATIONS TO PREMISES ...................................................................................... ......9 ARTICLE 11. LIABILITY, INDEMNITY AND INSURANCE ................................................................... ......9 ARTICLE 12. DESTRUCTION ................................................................................................................ ....11 ARTICLE 13. MAINTENANCE OF PREMISES ..................................................................................... ....12 ARTICLE 14. UTILITIES AND GARBAGE DISPOSAL ......................................................................... ....12 ARTICLE 15. LIENS ............................................................................................................................... ....13 ARTICLE 16. SIGNAGE ......................................................................................................................... ....13 ARTICLE 17. ASSIGNMENT AND SUBLETTING ................................................................................. ....13 ARTICLE 18. DEFAULTS BY TENANT ................................................................................................. ....14 ARTICLE 19. LIMITATION OF LANDLORD'S LIABILITY .................................................................... ....16 ARTICLE 20. SUBORDINATION AND ATTORNMENT ........................................................................ ....16 ARTICLE 21. ESTOPPEL CERTIFICATES ........................................................................................... ....17 ARTICLE 22. QUIET ENJOYMENT ....................................................................................................... ....17 ARTICLE 23. SURRENDER AND HOLDING OVER ............................................................................. ....17 ARTICLE 24. CONDEMNATION ............................................................................................................ ....17 ARTICLE 25. MISCELLANEOUS ........................................................................................................... ....18 ARTICLE 26. LANDLORD'S RIGHT TO RELOCATE PREMISES ....................................................... ....21 ARTICLE 27. RADIUS RESTRICTION ................................................................................................... ....21 ARTICLE 28. EXCLUSIVE ..................................................................................................................... ....21 ARTICLE 29. OPTION TO EXTEND ...................................................................................................... ....21 ARTICLE 30. ADDITIONAL MAINTENANCE REQUIREMENTS .......................................................... ....22 ARTICLE 31. ADDITIONAL REQUIREMENTS FOR RESTAURANT USE IN PREMISES .................. .... 22 .ARTICLE 32. TENANT ALLOWANCE ................................................................................................... ....23 ARTICLE 33. LANDLORD'S SUBORDINATION OF LIEN ................................................................... ....23 ARTICLE 34. LANDLORD'S LIEN ......................................................................................................... ....23 ARTICLE 35. TENANT'S FINANCIAL STATEMENTS .......................................................................... ....24 os/oa/o? R BGEivt ?. CENTER', ARTICLE 36. SECURITY DEPOSIT ...........................................................................................................24 EXHIBIT A ...................................................................................................................................................26 EXHIBIT B ...................................................................................................................................................31 EXHIBIT B ...................................................................................................................................................31 EXHIBIT B ...................................................................................................................................................32 EXHIBIT C ...................................................................................................................................................32 EXHIBIT C ...................................................................................................................................................33 EXHIBIT C-1 ................................................................................................................................................35 EXHIBIT C-2 ................................................................................................................................................36 EXHIBIT D ...................................................................................................................................................37 EXHIBIT E ...................................................................................................................................................40 EXHIBIT F ...................................................................................................................................................41 EXHIBIT G ...................................................................................................................................................42 EXHIBIT 1 ....................................................................................................................................................44 ? os/oa/o? NI i2RGFi?;A ?. CENTFkS SILVER SPRING SQUARE SHOPPING CENTER LEASE THIS LEASE, made as of the day of k4-11A4 . 2007, by and between Silver Spring Square II, LP, a Delaware limited partnership (herein called "Landlord") nd ZPizza International, Inc. , corporation (herein called'Tenant'). In consideration of the obligations of Tenant to pay rent and other charges as herein provided and in consideration of the other terms, covenants and conditions hereof, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the premises described herein for the term and subject to the terms and conditions set forth herein. ARTICLE 1.INTRODUCTORY PROVISIONS 1.1 FUNDAMENTAL LEASE PROVISIONS. Certain fundamental provisions are presented in this Section in summary form to facilitate convenient reference by the parties hereto: (a) Tenant's Trade Name ZPiaa (Section 7.1) (b) Term One Hundred Twenty (120) months (Section 3.1) (c) Premises Space Number H-11 (Exhibit "B" - Part 2) (d) GLA in Premises 1,600 square feet (Section 1.5) (e) GLA in Landlord's Building 347,817 square feet (Section 1.5) (f) Tenant's Proportionate Share Tenant's proportionate share shall be defined as the percentage that the gross leasable area ("GLA") of the Premises bears to the entire gross leasable area of Landlord's Building except as hereinafter provided. In determining Tenant's Proportionate Share of Common Area Costs and contribution for Taxes and Insurance, Landlord may exclude from the GLA of the Landlord's Building any premises containing 7,500 or more square feet of GLA if the lease for such premises does not require the applicable tenant to pay a prorata share of Common Area Costs, Taxes or Insurance, but in that event, Landlord shall deduct from the Common Area Costs, Taxes or Insurance any amounts payable by any such tenants specifically for items included in the Common Area Costs, Taxes or Insurance. (g) Minimum Annual Rent: Months Minimum Rent Minimum Rent Minimum Rent (Monthly) (Per Sq. ft. of (Annual) GLA) 1-60 $4,666.67 $35.00 $56,000.00 61 - 120 $5,226.67 $39.20 $62,720.00 plus applicable sales tax (Section 4.2) (h) Percentage Rent See Section 4.4 (i) Commencement Date The earlier of (i) ninety (90) days after the date of Landlord's delivery of the Premises to Tenant, or (ii) the date on which Tenant first opens for business in the Premises. (Section 3.1) (j) Use Subiect to receipt of Wearnans' waiver. Tenant shall use space for the purpose of operating a restaurant selling pizza, salads, sandwiches and pasta as well as other items typically sold in other ZPtzza locations. Tenant cannot chance its name or use without Landlord's or Wecmans' consent. (Article 7) (k) Guarantor(s) (if none, so state) (Exhibit D) Jeff Roberts. Anoela Roberts & Rebecca Richmond (1) Default Rate: The lesser of twelve percent (12%) per annum or the maximum lawful rate of interest permitted by applicable law (m) Security Deposit $5,108.00 (n) Brokers Regency Realty Group and Brandon Anapol, Metro Commercial Real Estate, Inc. representing Landlord and David Nicholson, Bennett Williams Realty, Inc. representing 1 ]ax Legal 2779 v] 4/I0/07 R F.,01:NCY C ENTFR. s (o) Estimated Common Area Costs for 2007 $2.35 per square foot per annum (Article 8) (Subject to annual adjustment) (p) Estimated Taxes for 2007 $0.76 per square foot per annum (Article 5) (Subject to annual adjustment) (q) Estimated Insurance for 2007 $0.20 per square foot per annum (Article 11) (Subject to annual adjustment) (r) Advertising and Promotion Fund (if none, so state) N/A (s) Estimated Initial Monthly Payments Required Minimum Rent $4,666.67 Additional Rent Common Area Costs $313.33 Taxes $101.33 Insurance $26.67 Advertising and Promotion Fund (if none, so N/A state) Pylon Signage Fee (if none, so state) N/A Satellite Fee (if none, so state) N/A Total Monthly Additional Rent $441.33 State and County Sales Tax N/A Total Monthly Payment at Commencement Date $5,108.00 (t) Address for Notice To Landlord c/o Regency Centers Corporation 121 West Forsyth Street Suite 200 Jacksonville, Florida 32202 Attention: Lease Administrator With a copy to: c/o Regency Centers Corporation 121 West Forsyth Street Suite 200 Jacksonville, Florida 32202 Attention: Legal Department With a copy to: c/o Regency Centers Corporation 150 Monument Road, Suite 406 Bala Cynwyd, PA 19004 Attention: Property Management To Tenant: (u) Tenant Allowance $5.00 per square foot of the Premises; subject, however, to the terms and conditions of the Tenant Allowance provision of this Lease 2 Jax Legal 2779 vt 4/10/07 ` CENTER c LEASE PROVISIONS 1.2 REFERENCES AND CONFLICTS. References appearing in Section 1.1 are to designate some of the other places in this Lease where additional provisions applicable to the particular Fundamental Lease Provisions appear. Each reference in this Lease to any of the Fundamental Lease Provisions contained in Section 1.1 shall be construed to incorporate all of the terms provided for under such provisions, and such provisions shall be read in conjunction with all other provisions of this Lease applicable thereto. If there is any conflict between any of the Fundamental Lease Provisions set forth in Section 1.1 and any other provision of this Lease, the latter shall control. 1.3 EXHIBITS. The following drawings and special provisions are attached hereto as exhibits and hereby made a part of this Lease: (a) Exhibit "A" Legal Description of the Shopping Center Land as presently constituted (b) Exhibit "B" Part 1 - Site plan of Shopping Center Land; and Part 2 - Leasing Plan. (The Premises is identified on the Leasing Plan.) (c) Exhibit "C" Description of Tenant's Work and Work to be performed by Landlord, if any, in the Premises; and "C-1" Shopping Center Signage Criteria; and "C-2" Landlord's Work and (d) Exhibit "D" Guaranty Agreement (not an exhibit unless Guarantor is named in Section 1.1). "Guarantor" means the guarantor or guarantors named in Section 1.1 (e) Exhibit "E" Requirements i£ Restrictions (f) Exhibit "F" Tenant Improvements (g) Exhibit "G" IML-RtioRally Om Shopping Center Exclusives (h) Exhibit "H" Intentionally Omitted (i) Exhibit "I" Landlord Waiver Agreement 1.4 THE SHOPPING CENTER; LANDLORD'S BUILDING. The "Shopping Center" means the land described in Exhibit "A" and improvements thereon constituting an integrated retail shopping center, as the same may be modified from time to time throughout the Term of this Lease. The Shoaoina Center consists of that oortion of the Shoooina Center owned by Landlord set forth in the OEA (as defined in Section 1.6). The structure or structures shown on Exhibit "B" as "Landlord's Building," as the same may be altered, reduced or expanded from time to time throughout the Term of this Lease, is hereinafter called the "Landlord's Building." Landlord may at any time and from time to time change the shape, size, location, number, height and extent of the improvements in the Shopping Center and eliminate or add any improvements to any portion of the Shopping Center and add land thereto or eliminate land therefrom. 1.5 GROSS LEASABLE AREA. At the Commencement Date, GLA means, with respect to the Premises, the number of square feet set forth in Section 1.1(d) and, with respect to the Landlord's Building, the number of square feet set forth in Section 1.1(e). GLA will change with additions or deletions to the Landlord's Building and/or the Premises. The GLA is measured from the exterior face of exterior walls, the exterior face of service corridor walls and the centerline of interior demising walls. No deduction shall be made for columns, stairs, elevators or any internal construction or equipment. Unless another provision of this Lease expressly grants to Tenant a right to certify and/or remeasure the GLA of the Premises, Tenant shall have no such right to certify and/or remeasure or otherwise dispute the GLA of the Premises set forth in Section 1.1(d) above. included in Common Area Costs. .lax Legal 2779 vl 4/10/07 REGENCN, CENTERS f 1.6 DOCUMENTS OF RECORD The term "OEA" shall mean the Operation and Easement Agreement Between__ Tarqet Corporation and ARTICLE 2. PREMISES 2.1 LEASE OF PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises for the Term, at the rent, and upon the terms, covenants and conditions herein set forth. 2.2 PREMISES DEFINED. The term "Premises" means the space situated in the Landlord's Building in the location marked on Exhibit "B" and shall consist of the space thereat within the walls, structural floor and the bottom of the roof of Landlord's Building. 2.3 DELIVERY OF PREMISES. Landlord agrees to deliver to Tenant, and Tenant agrees to accept from Landlord, possession of the Premises when Landlord advises Tenant in writing that the Landlord's Work in the Premises (if any) has been sufficiently completed to permit Tenant's Work to begin or when Tenant takes possession of the Premises, whichever first occurs. Landlord's notice thereof shall constitute delivery of the Premises without further act by either party. Landlord will deliver possession of the Premises to Tenant in its current "as-is" condition with the addition of only those items of work (if any) described on Exhibit "C". If Landlord encounters delays in delivering possession of the Premises to Tenant, this Lease will not be void or voidable, nor will Landlord be liable to Tenant for any loss or damage resulting from such delay. If the delay in possession is caused by Tenant (including delays caused by Tenant's failure to supply the information referred to in the following sentence), then the date of Landlord's delivery of the Premises to Tenant shall be deemed to be the date such delivery would have occurred but for Tenant's delay. Notwithstanding the foregoing, Landlord will not be obligated to deliver possession of the Premises to Tenant until Landlord has received from Tenant all of the following: (i) a copy of this Lease fully executed by Tenant, and a Guaranty, if any, executed by the Guarantor(s); (ii) the Security Deposit and the first installment of Minimum Annual Rent; and (iii) copies of policies or certificates of insurance as required under Article 11 of this Lease. If Tenant occupies the Premises prior to the Commencement Date, such early occupancy shall be subject to all of the terms and conditions of this Lease, and Tenant will not interfere with Landlord in the completion of Landlord's Work (if any). Landlord will give Tenant access for locks to be changed upon: (i) Tenant's acceptance of the Premises, (ii) Landlord's receipt of two sets of plans and specifications set forth in Exhibit "C", and (iii) Landlord's receipt of a copy of the contractor's insurance certificate. Tenant will pay all expenses associated with changing the locks. 2.4 OPENING OF PREMISES. On or before ten (10) days after delivery of possession of the Premises to Tenant, Tenant shall commence the Tenant's Work specified in Exhibit "C", diligently and continually proceed to completion, and open for business on or before the Commencement Date specified in Section 11(i). In relation to Tenant's Work, Tenant shall execute the Notice of Commencement as Owner identifying Landlord only as the fee simple titleholder for purposes of permitting. 13y epeRiRg fGF bUSiRess, Tenant shall he deemed to ARTICLE 3. TERM 3.1 TERM OF THIS LEASE. The Term of this Lease shall commence on the Commencement Date specified in Section 1.1(i) and shall continue for the number of months set forth in Section 1.1(b). ARTICLE 4. RENT 4.1 TENANT'S AGREEMENT TO PAY RENT. Tenant hereby agrees to pay Minimum Annual Rent, Percentage Rent and Additional Rent. The term "Rent" includes the Minimum Annual Rent, Percentage Rent and Additional Rent. 4.2 MINIMUM RENT. The minimum amount of rent Tenant shall pay Landlord for each Lease Year is the amount set forth in Section 1.1(g) (the "Minimum Annual Rent"). Minimum Annual Rent for the period from the Commencement Date to the first day of the month following such date shall be prorated on a daily basis and shall be payable with and in addition to the first installment of Minimum Annual Rent. The Minimum Annual Rent for each Lease Year (as defined below) shall be payable in twelve (12) equal monthly installments, in advance, on the first day of each calendar month. The first installment of Rent shall be due on Tenant's execution and delivery of this Lease to Landlord. 4.3 LEASE YEAR DEFINED. The "First Lease Year" means the period beginning on the Commencement Date and ending on the last day of the twelfth full calendar month thereafter. "Lease Year" means each successive twelve (12) month period after the First Lease Year occurring during the Term. Jan Legal 2779 vt 4/10/07 REGENCY CfiNTFRc 4.4 PERCENTAGE RENT. In addition to Minimum Annual Rent, Tenant agrees to pay to Landlord as percentage rent ("Percentage Rent") for each Lease Year an amount equal to the stated percentage times the amount of Gross Sales made during the stated Lease Year in excess of the stated dollar amount (the "Lease Year Breakpoint") as more particularly set forth below: Lease Year Percentage Breakpoint 1-10 41/6 $1,400,000.00 If any Lease Year is less than twelve (12) months, the Lease Year Breakpoint shall be proportionately reduced. 4.5 MONTHLY PAYMENT OF PERCENTAGE RENT; YEAR-END ADJUSTMENT. (a) Tenant shall furnish to Landlord within twenty (20) days after the end of each calendar month during the Term a complete statement, certified by Tenant (or a responsible officer thereof if Tenant is a corporation or limited liability company), of the amount of Gross Sales made from the Premises during said month, the statement to be in such form and style and contain such details and breakdown as Landlord may require. Tenant shall also furnish to Landlord with each such monthly statement a copy of any sales tax report filed with any taxing authority. Tenant shall pay to Landlord simultaneously with each said monthly statement the amount which is equal to the percentage set forth in Section 1.1(h) times the amount of Gross Sales made during the month represented by said statement, minus the Minimum Annual Rent paid for such period. (b) Tenant will also furnish to Landlord within sixty (60) days after the end of each Lease Year a complete statement certified by Tenant (or a responsible officer thereof if Tenant is a corporation or limited liability company), showing in reasonable detail the amount of Gross Sales made during the preceding Lease Year and the amount paid to Landlord pursuant to Section 4.5(a) in such Lease Year. An adjustment shall thereupon be made with respect to the Percentage Rent as follows: If Tenant has paid to Landlord an amount greater than Tenant is required to pay as Minimum Annual Rent and Percentage Rent under the terms of Sections 4.2 through 4.4, Tenant shall receive a credit of such difference or, if the Lease has terminated, Landlord will refund such difference to Tenant within thirty (30) days after receipt of Tenant's statement. If it is determined that Tenant has paid an amount less than was required to be so paid, then Tenant shall forthwith pay such difference within thirty (30) days after notice from Landlord. (c) If any reports of Gross Sales required hereunder are not received by Landlord or Landlord's designee within ten (10) days following the due date for such report and such failure continues for an additional three (3) days after notice from Landlord of such failure, Tenant will pay to Landlord the sum of One Hundred Dollars ($100.00). Acceptance of such late charge shall not constitute a waiver of Tenant's default with respect to the submittal of any such report nor prevent Landlord from exercising any of the other rights and remedies available to Landlord under this Lease, at law or in equity. The parties hereby agree that such charge represents a fair and reasonable estimate of the cost which Landlord will incur by reason of the late submittal of the report. 4.6 GROSS SALES. (a) "Gross Sales" means the actual prices of all goods, wares, internet based sales and merchandise sold and the actual charges for all services performed by Tenant or by any subtenant, licensee, concessionaire or other person in, at, from, or arising out of the use of the Premises, whether wholesale or retail, whether for cash or credit, or otherwise, and includes the value of all consideration received or promised for any of the foregoing, without reserve or deduction for inability or failure to collect, including, but not limited to, sales and services: (i) where the orders therefor originate in, at, from or arising out of the use of the Premises, whether delivery or performance is made from the Premises or from some other place and regardless of the place of bookkeeping for, payment of, or collection of any account; or (ii) made or performed by mail, telephone, or telecopy orders received or filled in, at or from the Premises; or (iii) made or performed by means of mechanical and other vending devices in the Premises; or (iv) which Tenant, or any subtenant, licensee, concessionaire or other person, in the normal and customary course of its business, would credit or attribute to its operation at the Premises or any part thereof. Any deposit not refunded shall be included in Gross Sales in the month in which such deposit is received. (b) The following shall be excluded from Gross Sales: (i) any exchange of merchandise between stores of Tenant when such exchange is made solely for the convenient operation of Tenant's business and not for the purpose of consummating a sale made in, at or from the Premises; (ii) returns to shippers or manufacturers; (iii) cash or credit refunds to customers on transactions previously reported as Gross Sales; (iv) sales of fixtures, machinery and equipment, which are not stock in trade, after use thereof in the conduct of Tenant's business; and (v) amounts which are separately stated and collected from customers and which are paid by Tenant to any government for any sales or excise tax. No franchise, capital stock tax, tax based upon assets or net worth or gross receipts tax, and no income or similar tax based on income or profits shall be deducted from Gross Sales. 4.7 TENANT'S RECORDS AND STATEMENTS OF GROSS SALES. lax Legal 2779 0 4/10W CENTER .1 (a) The business of Tenant and of any subtenant, licensee, concessionaire or other person upon the Premises shall be operated so that an accurate and verifiable record of Gross Sales can be maintained and reported to Landlord. Furthermore, Tenant shall keep at all times during the Term, at the Premises or at a location in the vicinity of the Premises made known to Landlord, full, complete and accurate books of account and records in accordance with generally accepted accounting practices with respect to all operations of the business conducted in or from the Premises, including the recording of Gross Sales and the receipt of all merchandise into and the delivery of all merchandise from the Premises during the Term. Tenant shall retain such books and records, copies of all tax reports and tax returns submitted to taxing authorities, as well as copies of contracts, vouchers, checks, inventory records, dated cash register tapes, and other documents and papers in any way related to the operation of such business for at least three (3) years from the end of the period to which they are applicable, or, if any audit is required or if a controversy should arise between the parties hereto regarding the Rent payable hereunder, until such audit or controversy is terminated, even though such retention period may be after the expiration of the Term or earlier termination of this Lease. All such books and records shall be open at all reasonable times during the aforesaid retention period to the inspection of Landlord or its duly authorized representatives, who shall have full and free access to such books and records and the right to require of Tenant, its agents and employees such information or explanation with respect to such books and records as may be necessary for a proper examination and audit thereof. (b) The statements provided for in Sections 4.5(a) and (b) shall be accompanied by a certificate signed by Tenant (or, if Tenant is a corporation or limited liability company, by a responsible officer of Tenant) stating specifically that Tenant and/or such person has read the definition of "Gross Sales" contained in this Lease, has examined the report for the period in question, and that such report accurately represents the Gross Sales of such period. Landlord shall be permitted to divulge the contents of any of the statements provided for in Sections 4.5(a) or (b) only if such disclosure is made in connection with any financing arrangements or assignments or other transfers of Landlord's interest in the Premises or in connection with any administrative or judicial proceedings in which Landlord is involved. In the event Tenant is delinquent in furnishing to Landlord monthly Gross Sales statements for two (2) consecutive months, Landlord shall have the right to conduct an examination or audit of Tenant's books and records and Tenant agrees to pay the cost thereof, together with any deficiencies in Percentage Rent disclosed thereby, as Additional Rent upon demand, together with interest at the Default Rate. The monthly and annual statements required by Section 4.5 shall be delivered to Landlord at the place to which notices are to be sent to Landlord pursuant to Section 25.3, whether or not any Percentage Rent is due. For the purposes of this Article, the term "responsible officer of Tenant" means the Chief Executive Officer or the Chief Financial Officer of Tenant or such other person reasonably acceptable to Landlord. 4.8 ADDITIONAL AUDIT RIGHTS. The acceptance by Landlord of payments of Percentage Rent shall not prejudice Landlord's right to examine Tenant's books, records and accounts in order to verify the amount of Gross Sales. Landlord or its representatives may, at any reasonable time, upon ten (10) days' prior written notice to Tenant, cause a complete or partial audit to be made of Tenant's books, records and other documents relating to the Premises (including the books and records of any subtenant, licensee or concessionaire) for all or any part of the three (3) year period immediately preceding the day of the giving of such notice by Landlord to Tenant. If such audit discloses that any of Tenant's monthly or annual statements of Gross Sales understates Gross Sales made during the reporting period of the statement to the extent of two percent (2%) or more, Tenant shall pay to Landlord, as Additional Rent on demand, the cost of said audit in addition to the deficiency in Percentage Rent, which deficiency shall be payable in any event, together with interest at the Default Rate. 4.9 ADDITIONAL RENT. Tenant shall pay, as additional rent (herein sometimes collectively called "Additional Rent"), all sums of money or charges of whatsoever nature (except Minimum Annual Rent and Percentage Rent) required to be paid by Tenant to Landlord pursuant to this Lease, whether or not the same is designated as "Additional Rent.- 4.10 WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTION; LATE CHARGE. Rent payable by Tenant under this Lease shall be paid to Landlord on or before the first day of each month without prior notice or demand therefor (except where such prior demand is expressly provided for in this Lease), without any deductions, set offs or counterclaims whatsoever, at the place to which notices are to be sent to Landlord or to such payee and at such place as may be designated by Landlord to Tenant in writing at least ten (10) days prior to the next ensuing Minimum Annual Rent installment payment date. Tenant acknowledges that, in addition to interest costs, the late payments by Tenant to Landlord of any Rent due under this Lease will cause Landlord to incur costs not contemplated by this Lease, the exact amount of such costs being extremely difficult and impractical to fix. Such other costs include, without limitation, processing, administrative and accounting charges and late charges that may be imposed on Landlord by the terms of any mortgage, deed of trust, related loan documents or other documents encumbering or otherwise affecting the Premises, Landlord's Building or the Shopping Center. Accordingly, if any payment of Rent or other charges due hereunder is not received by Landlord in good funds on its due date, Tenant will pay to Landlord a late charge of five percent (5%) of the amount due. The parties agree that such late charge (as well as any other late charge under this Lease) represents a fair and reasonable estimate of the costs that Landlord will incur by reason of any late payment as hereinabove referred to by Tenant, and the payment of late charges and interest are distinct and separate in that the payment of interest is to compensate Landlord for the use of Landlord's money by Tenant, while the payment of late charges is to compensate Landlord for Landlord's processing, administrative Jax Legal 2779 v l 4/10107 RI-GF Nr CENTERS' I? and other costs incurred by Landlord as a result of Tenant's delinquent payments. Acceptance of a late charge or interest shall not constitute a waiver of Tenant's default with respect to the overdue amount nor prevent Landlord from exercising any of the other rights and remedies available to Landlord under this Lease, at law or in equity. If Tenant fails in two (2) consecutive months to make rental payments within ten (10) days after the due date, Landlord, in order to reduce its administrative costs may require, by giving written notice to Tenant (and in addition to the late charge stated herein, as well as any other rights and remedies accruing pursuant to Article 18, or any other term, provision or covenant of this Lease at law or in equity) that Minimum Annual Rent is to be paid quarterly in advance instead of monthly and that all future rental payments are to be made on or before the due date by cash, cashier's check or money order, and that the delivery of Tenant's personal or corporate check will no longer constitute a payment of Rent as provided in this Lease. ARTICLE 5. TAXES AND ASSESSMENTS 5.1 TENANT'S PROPORTIONATE SHARE OF TAXES AND PAYMENT. Tenant shall pay to Landlord, as Additional Rent, Tenant's Proportionate Share of all real estate taxes, current and future, and other ad valorem taxes and assessments of every kind and Tenant's Proportionate Share of any reasonable costs and expenses (such as real estate tax consultant fees) that are incurred by Landlord in a good faith effort to reduce the amount assessed by the taxing authority provided Landlord's efforts result in a tax savings to Tenant with respect to the Shopping Center ("Taxes"). In the event any assessments may be paid in annual installments, only the amount of such annual installment and statutory interest shall be included within the computation of the annual Taxes for the Lease Year in question. Tenant shall pay its Proportionate Share of Taxes at the times and in the manner provided in Section 8.6. 5.2 RENT TAX. Should any governmental taxing authority acting under any present or future law, ordinance or regulation levy, assess or impose a tax, excise or assessment (other than an income or franchise tax) upon or against or measured by the Rent, or any part of it, Tenant shall pay such tax, excise and/or assessment when due or shall on demand reimburse Landlord for the amount thereof, as the case may be. 5.3 PERSONAL PROPERTY TAXES. Tenant shall be liable for, and shall pay before delinquency, all taxes and assessments (real and personal) levied against (a) any personal property or trade fixtures placed by Tenant in or about the Premises (including any increase in the assessed value of the Premises based upon the value of any such personal property or trade fixtures), and (b) any Tenant improvements or alterations in the Premises (whether installed and/or paid for by Landlord or Tenant). If any such taxes or assessments are levied against Landlord or Landlord's property, Landlord may, after written notice to Tenant (and under proper protest if requested by Tenant), pay such taxes and assessments, and Tenant shall reimburse Landlord therefor within ten (10) days after demand by Landlord; provided, however, Tenant, at its sole cost and expense, shall have the right, with Landlord's cooperation, to bring suit in any court of competent jurisdiction to recover the amount of any such taxes and assessments so paid under protest. ARTICLE 6. TENANT'S CONDUCT OF BUSINESS 6.1 HOURS. Tenant agrees that, from and after the Commencement Date, Tenant will continuously and uninterruptedly keep open and operate its entire store in the Premises for the purpose specified in Section 1.10) and under the trade name specified in Section 1.1(a) with the public daily during such hours as are customary in the Shopping Center. ARTICLE 7. USE OF PREMISES 7.1 SOLE USE AND TRADE NAME. Tenant shall use the Premises for the purpose specified in Section 1.16) and for no other purpose whatsoever and shall conduct its business in the Premises solely under the trade name specified in Section 1.1(a). Nothing in this Lease shall be construed to grant Tenant an exclusive right to the purpose specified in Section 1.10) or any other purpose or use. Tenant shall procure, at Tenant's sole expense, any permits or licenses required for the transaction of business in the Premises. 7.2 REQUIREMENTS AND RESTRICTIONS. Tenant agrees to comply with the Requirements and Restrictions set forth on Exhibit "E" attached hereto. Tenant shall not violate any of the restrictions set forth in the OEA or the Declaration including without limitation, those set forth in Exhibit "G" attached hereto. ARTICLE 8. COMMON AREAS 8.1 MAINTENANCE. Landlord agrees to maintain, as part of Common Area Costs, the Common Areas including the roof in good condition; provided, however, that the manner in which the Common Areas shall be maintained shall be solely determined by Landlord. If any owner or tenant of any portion of the Shopping Center Jm Legal 2779 vl 4/10107 (Z f'CiEiV FN7FRS maintains Common Areas located upon its parcel or premises (Landlord shall have the right, in its sole discretion, to allow any purchaser or tenant to so maintain Common Areas located upon its parcel or premises and to be excluded from participation in the payment of Common Area Costs), Landlord shall not have any responsibility for the maintenance of that portion of the Common Areas and Tenant shall have no claims against Landlord arising out of any failure of such owner or tenant to so maintain its portion of the Common Areas except as provided in the Target OE A. 8.2 COMMON AREAS DEFINED. "Common Areas" means all areas, facilities, and improvements provided in the Shopping Center for the convenience and use of patrons of the Shopping Center, and shall include, but not be limited to, all areas, all parking areas and facilities, sidewalks, stairways, service corridors, truckways, ramps, loading docks, delivery areas, landscaped areas, access and interior roads, lighting facilities and similar areas and facilities situated within the Shopping Center which are not reserved for the exclusive use of any Shopping Center occupants. 8.3 LANDLORD'S CONTROL. Landlord shall at all times have the sole and exclusive control, management and direction of the Common Areas and the right to make reasonable changes to the Common Areas, and may at any time exclude and restrain any person from use or occupancy thereof. The rights of Tenant in and to the Common Areas are subject to the rights of others to use the same in common with Tenant. Landlord may at any time and from time to time close all or any portion of the Common Areas to make repairs, improvements, alterations or changes and, to the extent necessary in the opinion of Landlord, to prevent a dedication thereof or the accrual of any rights to any person or to the public therein. 8.4 EMPLOYEE PARKING. Landlord may from time to time designate a particular parking area or areas to be used by its tenants and their employees. If Tenant or any of its employees fail to park their vehicle in any such designated parking areas, Landlord, in its sole discretion, may give Tenant notice of such violation and, if the violation is not corrected within two (2) days after said notice is given, Tenant shall pay to Landlord an amount equal to Ten Dollars ($10.00) per day for each violating vehicle calculated from and including the day on which notice was given, to and including the day when all violations by Tenant and its employees cease. In no event, however, shall Landlord be required to enforce any parking obligation stated herein. 8.5 COMMON AREA COSTS. "Common Area Costs" means all costs incurred in a manner deemed by Landlord to be reasonable and appropriate and for the best interests of the Shopping Center in connection with the management, operation, maintenance, replacement and repair of the Common Areas, including but not limited to security, landscaping, utilities, painting, striping, lighting, management fee four percent (4%) of gross revenues and pest control among other items. In addition, the term "Common Area Costs" may also 8.6 TENANT'S PROPORTIONATE SHARE OF COMMON AREA COSTS, TAXES AND INSURANCE. Tenant agrees to pay to Landlord, as Additional Rent, Tenant's Proportionate Share of Common Area Costs, Taxes and Insurance (as hereinafter defined) in the following manner: (a) Tenant shall pay Landlord on the Commencement Date and on the first day of each calendar month of the Term thereafter an amount estimated by Landlord to be Tenant's monthly Proportionate Share of the Common Area Costs, Taxes and Insurance. Landlord may adjust said amount at the end of any calendar month on the basis of Landlord's experience and reasonably anticipated costs. (b) Within ninety (90) days following the end of each calendar year, or as soon as reasonably possible thereafter, Landlord shall endeavor to furnish Tenant a statement covering such year just ended, showing the Common Area Costs, Taxes and Insurance and the amount of Tenant's Proportionate Share of such costs for such year and the payments made by Tenant with respect to such year. If Tenant's Proportionate Share of such costs is less than Tenant's payments so made, Tenant shall be entitled to a credit of the difference or, if such share is greater than Tenant's said payments, Tenant shall pay Landlord the difference within thirty (30) days after receipt of such statement. (c) Any failure or delay by Landlord in delivering any estimated or final statement pursuant to this Section 8.6 shall not constitute a waiver of Landlord's right to receive Tenant's payment of Tenant's Proportionate Share of Common Area Costs, Taxes and Insurance. ARTICLE 9. HAZARDOUS SUBSTANCES 9.1 RESTRICTION ON USE. Tenant shall not use or permit the use of the Premises for the generation, storage, treatment, use, Jax Legal 2779 v1 4/10/07 C N-1 E:R,C transportation, handling or disposal of any chemical, material or substance which is regulated as toxic or hazardous or exposure to which is prohibited, limited or regulated by any governmental authority, or which, even if not so regulated, may or could pose a hazard to the Premises, Shopping Center or property adjacent thereto or to the health or safety of persons on the Premises or other tenants or occupants of the Shopping Center or property adjacent thereto, and no such chemical, material or substance shall be brought onto the Premises without the Landlord's express written approval. Tenant agrees that it will at all times observe and abide by all laws and regulations relating to the handling of such materials and will promptly notify Landlord of (a) the receipt of any warning notice, notice of violation, or complaint received from any governmental agency or third party relating to environmental compliance, and (b) any release of hazardous materials on the Premises and/or Shopping Center. Tenant shall, in accordance with all applicable laws, carry out, at its sole cost and expense, any remediation required as a result of the release of any hazardous substance by Tenant or by Tenant's agents, employees, contractors or invitees, from the Premises and/or Shopping Center. In addition, Tenant shall immediately notify Landlord concerning any water intrusion or leakage in the Premises. Tenant shall provide Landlord with immediate access to the Premises in order to assess the damage. Repairs to the Premises shall be made by the party responsible. Should Tenant be responsible for the repairs and fail to correct immediately, Landlord shall make the repairs at Tenant's expense. Notwithstanding the foregoing, Tenant shall have the right to bring on to the Premises reasonable amounts of cleaning materials and the like necessary for the operation of Tenant's business, but Tenant's liability with respect to such materials shall be as set forth in this Article. 9.2 INDEMNIFICATION. To the fullest extent permitted by law, Tenant agrees to promptly indemnify, protect, defend and hold harmless Landlord and Landlord's partners, officers, directors, employees, agents, successors and assigns (collectively, "Landlord Parties") from and against any and all claims, damages, judgments, suits, causes of action, losses, liabilities, penalties, fines, expenses and costs (including, without limitation, clean-up, removal, remediation and restoration costs, sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees and court costs) which arise or result from any environmental contamination on, in, under or about the Premises, Landlord's Building or any other portion of the Shopping Center and which are caused or permitted by Tenant or any of Tenant's agents, employees, subtenants, assignees, licensees, contractors or invitees (collectively, "Tenant Parties"). 9.3 SURVIVAL. The provisions of this Article shall survive the termination of this Lease. ARTICLE 10. ALTERATIONS TO PREMISES 10.1 ALTERATIONS; DAMAGES. Tenant shall make no structural alterations, additions or changes in or to the Premises without Landlord's prior written consent and subject to the conditions and requirements for alterations attached hereto as Exhibit "F". 10.2 COMPLIANCE WITH LAWS. Any permitted changes, alterations and additions made by Tenant shall be performed strictly in accordance with applicable laws, rules, regulations, the OEA, the Declaration and building codes relating thereto including, without limitation, the provisions of Title III of the Americans with Disabilities Act of 1990. Throughout the performance of Tenant's alterations, Tenant shall obtain, or cause its contractors to obtain, workers compensation insurance and commercial general liability insurance in form and substance satisfactory to Landlord and naming Landlord as an additional insured thereunder. All imorovements and alterations shall be subiect to the OEA and the Declaration. ARTICLE 11. LIABILITY. INDEMNITY AND INSURANCE 11.1 LANDLORD'S LIABILITY. Landlord shall not be liable for any damage or liability of any kind or for any injury to or death of any persons or damage to any property on or about the Premises from any cause whatsoever, except to the extent any such matter is not covered by insurance required to be maintained by Tenant under this Lease and is attributable to Landlord's gross negligence or willful misconduct. 11.2 INDEMNIFICATION BY TENANT. Tenant hereby agrees to indemnify and save Landlord harmless from all claims, actions, judgments, suits, losses, fines, penalties, demands, costs and expenses and liability whatsoever, including reasonable attorneys' fees, expert fees and court costs ("Indemnified Claims") on account of (i) any damage or liability occasioned in whole or in part by any use or occupancy of the Premises or by any act or omission of Tenant or the Tenant Parties, (ii) the use of the Premises and Common Areas and conduct of Tenant's business by Tenant or any Tenant Parties, or any other activity, work or thing done, permitted or suffered by Tenant or any Tenant Parties, in or about the Premises, Landlord's Building or elsewhere on the Shopping Center; and/or (iii) any default by Tenant of any obligations on Tenant's part to be performed under the terms of this Lease. In case any action or proceeding is brought against Landlord or any Landlord Parties by reason of any such Indemnified Claims, Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by counsel approved in writing by Landlord, which approval shall not be unreasonably withheld. Tenant shall not be liable for damage or injury occasioned by the gross 9 Jax Legal 2779 vt 4/10/07 R I?GI: NC, ti. <YF'N? -ER S negligence or willful acts of Landlord or its agents, contractors, servants or employees unless such damage or injury arises from perils against which Tenant is required by this Lease to insure and then only to the extent of such insurance. Tenant's indemnification obligation under this Section 11.2 shall survive the expiration or earlier termination of this Lease. Tenant's covenants, agreements and indemnification in Sections 11.1, 11.2 and 11.7, are not intended to and shall not relieve any insurance carrier of its obligations under policies required to be carried by Tenant pursuant to the provisions of this Lease. 11.3 INSURED'S WAIVER. In the event of loss or damage to the property of Landlord or Tenant, each party will look first to its own insurance before making any claim against the other. To the extent possible, each party shall obtain, for all policies of insurance required by this Lease, provisions permitting waiver of subrogation against the other party, and each party, for itself and its insurers, hereby waives the right to make any claim against the other (or its agents, employees or insurers) for loss or damage covered by the insurance requirements of this Lease. 11.4 TENANT'S INSURANCE. (a) Tenant agrees that, from and after the date of delivery of the Premises to Tenant, Tenant will carry at its sole cost and expense the following types of insurance, in the amounts specified and in the form hereinafter provided for: 1. Public Liability and Property Damage Insurance covering the Premises and Tenant's use thereof against claims for personal injury or death and property damage occurring upon, in or about the Premises, such insurance to afford protection to the limit of not less than $1,000,000.00 in respect of injury or death of any number of persons arising out of any one occurrence and such insurance against property damage to afford protection to the limit of not less than $500,000.00 in respect to any instance of property damage. The insurance coverage required under this Section 11.4(a)1 shall, in addition, extend to any liability of Tenant arising out of the indemnities provided for in Section 11.2; and 2. Tenant Improvements and Property Insurance covering all of the items included in Tenant's Work, Tenant's leasehold improvements, heating, ventilating and air conditioning equipment, trade fixtures, signage and personal property from time to time in, on or upon the Premises and, to the extent not covered by Landlord's similar insurance, alterations, additions or changes made by Tenant pursuant to Article 10, in an amount not less than their full replacement cost, providing protection against perils included within standard forms of all risk coverage insurance policy, together with such other coverage the Landlord deems appropriate (i_e. flood and/or earthquake). Any policy proceeds from such insurance shall be held in trust by Tenant for the repair, reconstruction, restoration or replacement of the property damaged or destroyed, unless this Lease shall cease and terminate under the provisions of Article 12. (b) All policies of insurance provided for in Section 11.4(a) shall be issued in form acceptable to Landlord by insurance companies with general policyholder's rating of not less than A and a financial rating of Class VI as rated in the most currently available "Best's Insurance Reports" and qualified to do business in the state in which the Premises is located. Each such policy shall be issued in the names of Landlord and Tenant and any other parties in interest from time to time designated in writing by notice by Landlord to Tenant. Said policies shall be for the mutual and joint benefit and protection of Landlord and Tenant and executed copies of each such policy of insurance or a certificate thereof shall be delivered to Landlord upon delivery of possession of the Premises to Tenant and thereafter within thirty (30) days prior to the expiration of each such policy. As often as any such policy shall expire or terminate, renewal or additional policies shall be procured and maintained by Tenant in like manner and to like extent. All such policies of insurance shall contain a provision that the company writing said policy will give Landlord at least thirty (30) days' notice in writing in advance of any cancellation, or lapse, or the effective date of any reduction in the amounts, or insurance. All such public liability, property damage and other casualty policies shall be written as primary policies which do not contribute to any policies which may be carried by Landlord. All such public liability and property damage policies shall contain a provision that Landlord, although named as an insured, shall nevertheless be entitled to recover under said policies for any loss occasioned to it, its servants, agents and employees by reason of the negligence of Tenant. Any insurance provided for in Section 11.4(a) may be effected by a policy of blanket insurance, covering additional items or locations or insureds; provided, however, that (i) Landlord shall be named as an additional insured thereunder as its interest may appear; (ii) the coverage afforded Landlord will not be reduced or diminished by reason of the use of such blanket policy of insurance; (iii) any such policy or policies (except any covering the risks referred to in Section 11.4(a)(1) shall specify therein (or Tenant shall fumish Landlord with a written statement from the insurers under such policy specifying) the amount of the total insurance allocated to the "Tenant Improvements and Property" more specifically detailed in Section 11.4(a)(2); and (iv) the requirements set forth herein are otherwise satisfied. Tenant agrees to permit Landlord at all reasonable times to inspect the policies of insurance of Tenant covering risks upon the Premises for which policies or copies thereof are not delivered to Landlord. 11.5 LANDLORD'S INSURANCE. (a) Landlord shall, as part of the Common Area Costs, at all times during the Term maintain in effect a policy or policies of insurance covering the Landlord's Building and the Common Areas (excluding Tenant improvements and property required to be insured by Tenant pursuant to Section 11.4(a)) in an amount not less than the full replacement cost (exclusive of the cost of excavations, 10 lax Legal 2779 v1 4110/07 ILUI-IW R 1 ?Cil?.?i i CEN'r'FiR c foundations and footings), providing protection against perils included within standard forms of fire and extended coverage insurance policies, 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 and public liability insurance in such amounts as Landlord deems to be reasonable. Any insurance provided for in Sections 11.5(a) or (b) may be effected by a policy or policies of blanket insurance, covering additional items or locations or insureds, provided that the requirements of Section 11.5(a) are otherwise satisfied. In addition, at Landlord's option, Landlord may elect to self-insure all or any part of such required insurance coverage. Landlord may, but shall not be obligated to, carry any other form or forms of insurance as Landlord or the mortgagees or ground lessors of Landlord may reasonably determine is advisable. All insurance required hereunder may be referred to as "Insurance". (b) Landlord may carry rent insurance with respect to the Premises in an aggregate amount equal to eighteen (18) or more times the sum of (i) the monthly requirement of Minimum Annual Rent, plus (ii) the sum of the amounts estimated by Landlord to be payable by Tenant for Additional Rent and Percentage Rent for the month immediately prior to the month in which the policy is purchased or renewed. (c) Tenant agrees to pay Tenant's Proportionate Share of premiums for the Insurance provided pursuant to Section 8.6 of this Lease. Tenant shall have no rights in any Insurance maintained by Landlord nor shall Tenant be entitled to be a named insured thereunder. 11.6 COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REQUIREMENTS. Tenant agrees at its sole cost and expense, to comply with all reasonable recommendations and requirements with respect to the Premises, or its use or occupancy, of the insurance underwriters and any similar public or private body, and any governmental authority having jurisdiction over insurance rates with respect to the use or occupancy of the Shopping Center. Tenant shall not do or suffer to be done anything upon or in the Premises which will contravene Landlord's policies of insurance or cause an increase in Landlord's insurance rates. 11.7 =LIMIT OF LANDLORD'S RESPONSIBILITY. Except to the extent such matter is not covered by the insurance required to be maintained by Tenant under this Lease and is attributable to the gross negligence or willful misconduct of Landlord, Landlord shall not, without limiting the generality of Section 11.1 hereof, be responsible or liable to Tenant or the Tenant Parties for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying space in any other part of the Shopping Center, or for any loss or damage resulting to the Tenant or its property from bursting, stoppage or leaking of water, gas, sewer or steam pipes or for any damage caused by water leakage from any part of the Premises or from the pipes, appliances or plumbing works or from the roof, street or subsurface or from any other places or by dampness or by any other cause of whatsoever nature, or loss of property within the Premises from any cause whatsoever or any damage caused by other tenants or persons in the Premises, occupants of adjacent property of the Shopping Center, or the public, or caused by construction of any private, public or quasi-public work. ARTICLE 12. DESTRUCTION 12.1 DESTRUCTION. Subject to the provisions of 12.2, 12.3 and 12.4 below, if the Premises shall be damaged by any casualty, Landlord shall promptly restore same to their condition immediately prior to the occurrence of the damage to the extent of insurance proceeds received, and the Minimum Rent and other charges shall be abated proportionately as to that part of the Premises rendered untenantable. 12.2 LANDLORD'S ELECTION. If the Premises (i) are rendered wholly untenantable; (ii) are substantially damaged (i.e., the cost to repair or replace exceeds 50% of their value) as a result of a risk which is not covered by Landlord's insurance; (iii) are substantially damaged during the last year of the term or of any renewal term hereof, regardless of insurance coverage; (iv) or the building of which they are a part (whether the Premises are damaged or not), or all of the buildings which then comprise the Shopping Center, are damaged to the extent of fifty percent (50%) or more of the value thereof, so that the Shopping Center cannot in the reasonable judgment of Landlord be operated as an integral unit; or (v) are damaged and the holder of any mortgage, deed of trust or other lien requires the use of all or any part of Landlord's insurance proceeds in satisfaction of all or a part of this indebtedness secured by any such mortgage, deed of trust or other lien, then or in any of such events, Landlord may either elect to repair the damage to the extent of insurance proceeds received or may cancel this Lease by notice of cancellation within ninety (90) days after such event (whereupon this Lease shall expire and Tenant shall vacate and surrender the Premises to Landlord). Tenant's liability for rent, subject to the provisions regarding abatement of minimum rent contained above, shall continue until the date of termination of this Lease. 12.3 TENANT'S ELECTION. If Landlord fails to commence the restoration within one hundred twenty (120) days after the casualty and such delay is not caused by Tenant (or any Tenant Parties) or any events of force majeure, Tenant shall have the right to terminate this Lease by notice to Landlord given prior to Landlord's commencement of construction. In addition, Tenant shall have the right to terminate this Lease by giving written notice to Landlord of exercise thereof within one hundred twenty (120) days after the date Landlord's Building is 11 lax Legal 2779 vl 4/10/07 damaged or destroyed if: (a) no part of the Premises remains tenantable after damage or destruction thereof from any cause; or (b) the damage or destruction of the Landlord's Building occurs within the last twelve (12) months of the Term. 12.4 REPAIR. ETC. In the event Landlord elects to repair the damage, any abatement of rent shall end the earlier of (i) sixty (60) days after notice by Landlord to Tenant that the Premises have been repaired or (ii) the date Tenant reopens the damaged Premises for business. Unless this Lease is terminated by Landlord, Tenant shall refixture the Premises in a manner and to a condition equal to that existing prior to its destruction or casualty, and the proceeds of all insurance carried by Tenant on its property and improvements shall be held in trust by Tenant for the purpose of said repair and replacement. ARTICLE 13. MAINTENANCE OF PREMISES 13.1 LANDLORD'S DUTY TO MAINTAIN. Landlord will, as part of the Common Area Costs, keep the exterior walls, structural columns and structural floor or floors (excluding outer floor and floor coverings, walls installed at the request of Tenant, doors, windows and glass) in good repair. Notwithstanding the foregoing provisions of this Section, Landlord shall not in any way be liable to Tenant on account of its failure to make repairs unless Tenant shall have given Landlord written notice and afforded Landlord a reasonable opportunity to effect the same after such notice. 13.2 TENANT'S DUTY TO MAINTAIN. Tenant will, at its own cost and expense, maintain the Premises (except that part Landlord has agreed to maintain) in good and tenantable condition, and make all repairs to the Premises and every part thereof as needed. Tenant's obligations under this Section shall include, but not be limited to, modifying, repairing and maintaining items as are required by any governmental agency having jurisdiction thereof (whether the same is ordinary or extraordinary, foreseen or unforeseen), interior walls and glass, and the interior portions of exterior walls, ceilings, utility meters, pipes and conduits within the Premises, and all utility meters, and all pipes and conduits outside the Premises between the Premises and the service meter, all fixtures, HVAC equipment (whether such HVAC equipment is located inside or outside the Premises) in compliance with all Laws including environmental, sprinkler equipment and other equipment within the Premises, the store fronts and all exterior glass, all of Tenant's signs, locks and closing devices, and all window sashes, casement or frames, doors and door frames.; provided that Tenant shall make no adjustment, alteration or repair of any part of any sprinkler or sprinkler alarm system in or serving the Premises without Landlord's prior approval. Tenant shall contract with a service company approved by Landlord for the preventive maintenance of the HVAC and a copy of the service contract (which contract shall be subject to Landlord's approval) shall be furnished by Tenant to Landlord within ten (10) days after Tenant's opening for business, and a copy of any subsequent contract shall be furnished by Tenant to Landlord within ten (10) days after the same becomes effective. Such service contract must provide for at least four (4) visits, inspections and services each year and the regular changing of filters. All broken glass, both exterior and interior, shall be promptly replaced by Tenant with glass of the same kind, size and quality. Tenant shall permit no waste, damage or injury to the Premises. and Tenant shall initiate and carry out a program of regular maintenance and repair of the Premises, including the painting or refinishing of all areas of the interior and the store front, so as to impede, to the extent possible, deterioration by ordinary wear and tear and to keep the same in attractive condition. Tenant will not overload the electrical wiring serving the Premises and will install, at its expense, with Landlord's written approval, any additional electrical wiring required in connection with Tenant's apparatus. Landlord shall be under no obligation to make any repairs, replacements, reconstruction, alterations, or improvements to or upon the Premises or the mechanical equipment exclusively serving the Premises except as expressly provided for herein. 13.3 LANDLORD'S RIGHT OF ENTRY AND USE. Landlord and its authorized representatives may enter the Premises at any and all times during usual business hours of the Shopping Center occupants for the purpose of inspecting or repairing the same. Landlord has the right to lock any tenant space that has begun construction without Landlord's authority or approval. 13.4 CONFLICTS. If there is a conflict between the provisions of this Article 13 and Article 12, the provisions of Article 12 shall govern. ARTICLE 14. UTILITIES AND GARBAGE DISPOSAL 14.1 GAS, GARBAGE DISPOSAL, WATER, SANITARY SEWER, TELEPHONE AND ELECTRIC SERVICE. Tenant shall pay for all utilities and sanitary services used within the Premises and make such deposits or pay such permits required by the utility or sanitary service company providing the same. Landlord shall not be liable for any interruption or failure whatsoever in utility services, nor shall any such failure or 12 lax Legal 2779 vl 4/10/07 ` NT; R ,3F-0 interruption constitute an actual or constructive eviction of Tenant from the Premises or result in or give rise to any abatement in any Rent reserved hereunder. Upon written request from Landlord, Tenant will, at Tenant's expense, contract with the service company designated by Landlord for the disposal of all trash and garbage from the Premises. Tenant will furnish to Landlord a copy of such contract prior to opening for business, and a copy of each renewal of such contract shall be furnished to Landlord at least seven (7) days prior to the expiration of the existing contract. Landlord shall have the right to designate vendors to provide utility services and garbage collection services to the Premises, provided that the cost of such service is generally competitive in the vicinity of the Shopping Center. Should Landlord provide utilities to the Shopping Center, Tenant shall pay its proportionate share for the use of the utilities in the manner described in Section 8.6 hereof. Tenant agrees to pay all EDUs required for its use. ARTICLE 15. LIENS 15.1 NO LIENS PERMITTED; DISCHARGE. Landlord's property shall not be subject to liens for work done or materials used on the Premises made at the request of, or on order of or to discharge an obligation of, Tenant. This paragraph shall be construed so as to prohibit, in accordance with the provisions of State law, the interest of Landlord in the Premises or any part thereof from being subject to any lien for any improvements made by Tenant or any third party on Tenant's behalf (except Landlord) to the Premises. If any lien or notice of lien on account of an alleged debt of Tenant or any notice of lien by a party engaged by Tenant or Tenant's contractor or materialmen to work on the Premises shall be filed against the Shopping Center or any part thereof, Tenant, within ten (10) days after notice of the filing thereof, will cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. If Tenant shall fail to cause such lien or notice of lien to be discharged and released of record within the period aforesaid, then, in addition to any other right or remedy, Landlord may discharge the same either by paying the amounts claimed to be due or by procuring the discharge of such lien by deposit or by bonding procedures. Any amount so paid by Landlord and all costs and expenses, including attorneys' fees and court costs, incurred by Landlord in connection therewith, and including interest at the Default Rate, shall constitute Additional Rent and shall be paid by Tenant to Landlord on demand, or be deducted from Tenant Allowance or Construction Allowance monies owed to Tenant by Landlord, if any. ARTICLE 16. SIGNAGE Tenant shall at its own expense erect a sign on the exterior sign band of the Premises, which sign shall: (i) conform to the general material, size and appearance of other tenants' signs at the Shopping Center, (ii) be in strict conformity with any guidelines or sign criteria adopted by Landlord with respect to the Shopping Center, including, without limitation, the sign criteria set forth in Exhibit "C-1" attached hereto and made a part hereof, (iii) be in accordance with all applicable laws, (iv) be installed by a contractor or other party which meets with Landlord's prior approval, and-(v) be otherwise subject to Landlord's prior written approval and (vi) be subject to the OEA and the Declaration. Landlord will not be liable to Tenant or any Tenants contractor or city requirements pertaining to signage. 11 at any time duFiRg the TeFrR, ARTICLE 17. ASSIGNMENT AND SUBLETTING 17.1 RESTR14CTIONS ON ASSIGNMENT. Tenant shall have no right to transfer, assign, sublet, enter into license or concession agreements, or mortgage or hypothecate this Lease or the Tenant's interest in the Premises or any part thereof without Landlord's consent. Any attempted transfer, assignment, subletting, license or concession agreement, or hypothecation shall be void and confer no rights upon any third person and shall be a violation of this Section. Any transfer of this Lease from Tenant by merger, consolidation, liquidation or otherwise by operation of law, including, but not limited to, an assignment for the benefit of creditors, shall be included in the term "assignment" for the purposes of this Lease and shall be a violation of this Section. Landlord may deny its consent to assignment without cause or justification and may impose such conditions upon the granting of its consent as it may deem appropriate, including, without limitation, requiring the assignee to agree to new or different terms. To review any proposed assignment Landlord will require sixty (60) days to review tenant's submission of (i) the name of the entity receiving such transfer (the'Transferee"); (ii) a detailed description of the business of the Transferee; (iii) audited financial statements of the Transferee; (iv) all written agreements governing the transfer; (v) if the Transferee is an individual, a true and correct copy of the Transferee's driver's license; (vi) any information reasonably requested by the Landlord with respect to the transfer or the Transferee; and (vii) a fee of fifteen hundred dollars ($1,500.00) to compensate Landlord for legal fees, costs of administration, and other expenses incurred in connection with the review and processing of such documentation. Notwithstanding the foregoing, Landlord's consent will not be deemed unreasonably withheld should Tenant request an assignment of this Lease within the first eighteen (18) months of the initial lease term. 172 NO RELEASE. No Transfer will release Tenant of Tenant's obligations under this Lease or alter the primary liability of Tenant to pay the Rent and to perform all other obligations to be performed by Tenant hereunder. Consent by Landlord to one transfer will not be deemed consent to any subsequent Transfer. In the 13 Jax Legal 2779 A 4/10/07 VC C:3 t::?.; event of default by any Transferee of Tenant or any successor Tenant in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such Transferee or successor. 17.3 CONSIDERATION PAID BY SUBLESSEE OR ASSIGNEE: In the event that Landlord consents to a sublease and the rental due and payable by the sublessee (or a combination of the rent payable under such sublease plus any bonus or other consideration therefore or incident thereto) exceeds the Rent payable under this Lease, or if with respect to an assignment, permitted license or other transfer by Tenant permitted by Landlord, the consideration payable to Tenant by the assignee, licensee or other transferee exceeds the Rent payable under this Lease, then Tenant shall be bound and obligated to pay Landlord all such excess rental and other excess consideration within ten (10) days following receipt thereof by Tenant from such sublessee, assignee, licensee or other transferee as the case may be plus Tenant shall pay to Landlord on an ongoing basis the Percentage Rent paid by Tenant for the immediate 12 month period prior to the transfer of this Lease Agreement. Finally, in the event of any assignment or subletting, it is understood and agreed that all rentals paid to Tenant by an assignee or sublessee shall be received by Tenant in trust for Landlord, to be forwarded immediately to Landlord (to be applied as a credit and offset to Tenant's Rent obligations). 17.4 CHANGE OF OWNERSHIP. If Tenant or any Guarantor is a corporation, unincorporated association or partnership, a transfer, assignment or hypothecation of any stock or interest in such corporation, limited liability company, association or partnership by any stockholder or partner so as to result in a change in the control thereof by the person, persons or entities owning a majority interest therein as of the date of this Lease, shall be deemed to be an assignment of this Lease. This provision shall not be applicable to Tenant or to any Guarantor if it is a corporation whose voting stock is listed on a national securities exchange (as defined in the Securities Exchange Act of 1934, as amended) or is traded in any recognized over-the-counter market. ARTICLE 18. DEFAULTS BY TENANT 18.1 EVENTS OF DEFAULT. The following shall each be deemed to be an event of default (each of which is sometimes referred to as an "Event of Default") in this Lease: (a) any part of the Rent required to be paid by Tenant under this Lease shall at any time be unpaid; (b) Tenant fails in the observance or performance of any of its other covenants, agreements or conditions provided for in this Lease, and said failure shall continue for a period of ten (10) days after written notice thereof from Landlord to Tenant (unless such failure cannot reasonably be cured within ten (10) days and Tenant shall have commenced to cure said failure within said ten (10) days and continues diligently to pursue the curing of the same, which cure shall occur no later than sixty (60) days from the date of such notice from Landlord); (c) Tenant fails, after the date on which it is required by this Lease to open the Premises for business with the public, to be open for business as required by this Lease, or vacates or abandons the Premises; (d) the estate created in Tenant or any Guarantor hereof is taken in execution or by other process of law, or all or a substantial part of the assets of Tenant or any Guarantor hereof is placed in the hands of a liquidator, receiver or trustee (and such receivership or trusteeship or liquidation continues for a period of thirty (30) days), or Tenant or any such Guarantor makes an assignment for the benefit of creditors, or admits in writing that it cannot meet its obligations as they become due, or is adjudicated a bankrupt, or Tenant or any such Guarantor institutes any proceedings under any federal or state insolvency or bankruptcy law, or under any other act relating to the subject of bankruptcy wherein the Tenant or any such Guarantor seeks to be adjudicated as bankrupt, or to be discharged of its debts, or to effect a plan of liquidation, composition or reorganization, or should any involuntary proceedings be filed against Tenant or any such Guarantor under any such insolvency or bankruptcy law and such proceeding not be removed within ninety (90) days thereafter. If any insolvency proceedings, such as those referred to in this Section 18.1(d), are instituted against Tenant, the Premises shall not become an asset in any such proceedings; 18.2 LANDLORD'S REMEDIES. If any Event of Default occurs, Landlord may treat the occurrence of such event as a breach of this Lease and, in addition to any and all other rights or remedies of Landlord in this Lease or by law or in equity provided, Landlord shall have the option and right without further notice or demand to Tenant or any other person to: 14 Jax Legal 2779 vi 4/10/07 (Tl\'7', RS (a) declare the Term ended and to enter the Premises and take possession thereof and remove all persons therefrom, and Tenant shall have no further claim thereon or thereunder; (b) bring suit for the collection of Rent as it accrues pursuant to the terms of this Lease and damages including consequential damages without canceling this Lease, and with or without entering into possession of the Premises; (c) retake possession of the Premises from Tenant by summary proceedings or otherwise, either with or without terminating this Lease, and to sue Tenant for an amount equal to the remaining Rent to become due during the Term (or any extension period then in effect) discounted to its present value at a discount rate equal to the U.S. Treasury Bill or Note rate with the closest maturity to the remaining term of the Lease as selected by Landlord. Landlord's damages shall include the actual or estimated costs of reletting and alteration, leasing commissions and other costs of Landlord in connection therewith. Alternatively, Landlord may, after such retaking of possession, relet the Premises or any portion thereof. Tenant shall pay to Landlord all monthly deficits in Rent after any such re-entry in monthly installments as the amounts of such deficits from time to time are ascertained. Such deficiency shall be calculated and paid monthly; Tenant shall have no right to any excess. Tenant shall also pay to Landlord any costs and expenses, including, but not limited to, brokerage commissions and attorneys' fees, incurred by Landlord in such reletting or in making such alterations and repairs not covered by the rental received from such reletting. Should Landlord enter or take possession of the Premises as aforesaid, Landlord shall have the right, but not the obligation, to remove all or any part of the personal property located therein and may place the same in storage at a public warehouse at the expense and risk of the owner or owners thereof. 18.3 ATTORNEYS' FEES AND COSTS. In the event that any action, suit or other proceeding is initiated concerning or arising out of this Lease, the prevailing party shall recover all of such party's costs and attorneys' fees incurred in each and every action, suit or other proceeding, including any and all appeals or petitions therefrom from the non- prevailing party. As used herein, "attorneys' fees" shall mean the full and actual costs of any legal services actually rendered in connection with the matters involved, calculated on the basis of the usual fee charged by the attorney performing such services. 18.4 CONFESSION OF JUDGMENT AGAINST TENANT. THE FOLLOWING SECTION SETS FORTH WARRANTS OF AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT AND TO EXECUTE UPON SAID JUDGMENTS. IN GRANTING THESE WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT, AND TO EXECUTE UPON SAID JUDGMENTS AGAINST TENANT, TENANT HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TENANT HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING TO DETERMINE ITS RIGHTS AND LIABILITIES UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES. TENANT FURTHER KNOWINGLY, INTELLIGENTLY, VOLUNTARILY AND UNCONDITIONALLY ACKNOWLEDGES THAT LANDLORD MAY, UNDER THE CIRCUMSTANCES SET FORTH BELOW, OBTAIN A JUDGMENT AGAINST TENANT FOR POSSESSION OF THE LEASED PREMISES WITHOUT THE PRIOR KNOWLEDGE OR CONSENT BY TENANT AND WITHOUT OPPORTUNITY OF TENANT TO RAISE ANY DEFENSE, SET OFF, COUNTERCLAIM OR OTHER CLAIM TENANT MAY HAVE. THIS KNOWING, INTELLIGENT AND VOLUNTARY WAIVER APPLIES TO THE JUDGMENT BEING ENTERED BY CONFESSION AS WELL AS TO THE EXECUTION OF THAT JUDGMENT AGAINST TENANT. UPON THE FAILURE OF TENANT TO PAY ANY RENT OR PLACE SUCH RENT IN A SEGREGATED ESCROW ACCOUNT IN THE NAME OF LANDLORD AND TENANT WITH A BANK THAT IS ACCEPTABLE TO BOTH LANDLORD AND TENANT, IT SHALL BE LAWFUL FOR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT, AND TO SIGN FOR AND/OR FILE ANY ACTION OR ACTIONS IN EJECTMENT IN ANY COMPETENT COURT AGAINST TENANT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT AND THEREIN CONFESS JUDGMENT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE LEASED PREMISES, FOR WHICH A COPY OF THIS LEASE, VERIFIED BY AFFIDAVIT, SHALL BE ITS SUFFICIENT WARRANT. THEREUPON, IF LANDLORD SO DESIRES, A WRIT OF POSSESSION OR OTHER APPROPRIATE WRIT UNDER THE RULES OF CIVIL PROCEDURE THEN IN EFFECT MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS. LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT FAILURE OF TENANT TO PAY ANY RENT OR PLACE SUCH RENT IN A SEGREGATED ESCROW ACCOUNT IN THE NAME OF LANDLORD AND 15 Jax legal 2779 v14/10/07 TENANT WITH A BANK THAT IS ACCEPTABLE TO BOTH LANDLORD AND TENANT TO BRING ONE OR MORE FURTHER ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE LEASED PREMISES AND CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE LEASED PREMISES AS HEREINABOVE PROVIDED. IN ANY ACTION OF EJECTMENT, LANDLORD SHALL FIRST CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY HIM OR SOMEONE ACTING FOR HIM, SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE ENTRY OF JUDGMENT, AND, IF A TRUE COPY OF THIS LEASE (OR A TRUE COPY OF SUCH AFFIDAVIT) BE FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY, ANY RULE OF COURT, CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING. TENANT THEREBY RELEASES TO LANDLORD AND TO ANY AND ALL ATTORNEYS WHO MAY APPEAR FOR TENANT ALL ERRORS IN SUCH PROCEEDINGS AND ALL LIABILITY THEREOF. IF PROCEEDINGS SHALL BE COMMENCED BY LANDLORD TO RECOVER POSSESSION UNDER THE ACTS OF ASSEMBLY AND RULES OF CIVIL PROCEDURE, EITHER AT THE END OF THE TERM OR UPON THE EARLIER TERMINATION OF THIS LEASE, OR FOR NON-PAYMENT OF RENT OR ANY OTHER REASON, TENANT, SPECIFICALLY WAIVES THE RIGHT TO THE THREE (3) MONTHS NOTICE AND TO THE FIFTEEN (15) OR THIRTY (30) DAYS' NOTICE REQUIRED BY THE LANDLORD AND TENANT ACT OF 1951, AND AGREES THAT FIVE (5) DAYS NOTICE SHALL BE SUFFICIENT IN EITHER OR ANY SUCH CASE. ARTICLE 19. LIMITATION OF LANDLORD'S LIABILITY 19.1 LANDLORD'S DEFAULT. Except as otherwise provided in this Lease, Landlord shall be in default under this Lease if Landlord fails to perform any of its obligations hereunder and said failure continues for a period of thirty (30) days after written notice thereof from Tenant to Landlord (unless such failure cannot reasonably be cured within thirty (30) days and Landlord shall have commenced to cure said failure within said thirty (30) days and continues diligently to pursue the curing of the same). If Landlord defaults under this Lease and if, as a consequence of such default, Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of such judgment against the right, title and interest of Landlord in the Shopping Center as the same may then be constituted and encumbered, and Landlord shall not be liable for any deficiency. In no event shall Tenant have the right to levy execution against any property of Landlord other than its interest in the Shopping Center. Upon any such uncured default by Landlord, Tenant may exercise any of its rights provided in law or at equity; provided, however: (a) Tenant shall have no right to offset or abate rent in the event of any default by Landlord under this Lease, except to the extent offset rights are specifically provided to Tenant in this Lease; (b) Tenant shall have no right to terminate this Lease without a court order; and (c) Tenant's rights and remedies hereunder shall be limited to the extent (i) Tenant has expressly waived in this Lease any of such rights or remedies and/or (ii) this Lease otherwise expressly limits Tenant's rights or remedies. Notwithstanding anything contained in this Lease to the contrary, the obligations of Landlord under this Lease (including any actual or alleged breach or default by Landlord) do not constitute personal obligations of the individual partners, directors, officers, members or shareholders of Landlord or Landlord's partners, and Tenant shall not seek recourse against the individual partners, directors, officers, members or shareholders of Landlord or against Landlord's partners or any other persons or entities having any interest in Landlord, or any of their personal assets for satisfaction of any liability with respect to this Lease. . 19.2 TRANSFER OF LANDLORD'S INTEREST. In the event of the sale or other transfer of Landlord's interest in the Premises (except in the case of a sale-leaseback financing transaction in which Landlord is the lessee), Landlord shall transfer and assign to such purchaser or transferee the Security Deposit whereupon Landlord shall be deemed released from all liability and obligations hereunder arising out of any act, occurrence or omission relating to the Premises or this Lease occurring after the consummation of such sale or transfer. Tenant agrees to attorn to any successor, assignee, mortgagee or ground lessor of Landlord. ARTICLE 20. SUBORDINATION AND ATTORNMENT 20.1 SUBORDINATION OF LEASE AND TENANT'S ATTORNMENT. This Lease is subordinate to the lien of all mortgages, deeds of trust, security instruments, ground leases, easement agreements and any covenants, conditions and restrictions (collectively, "Superior Interests") now or hereafter covering all or any part of the Shopping Center, and to all amendments, modifications, consolidations, renewals, replacements and extensions thereof. Tenant also agrees that, if any mortgagee elects to have this Lease prior to the lien of its mortgage and signifies such election in the instrument creating its lien, or by separate recorded instrument, this Lease shall be prior in dignity to such mortgage. In the event of any proceedings brought for the enforcement of any instrument of any Superior Interest holder (including but not limited to a mortgage or lease), Tenant shall, upon demand by the Superior Interest holder, attorn to and recognize such Superior Interest holder as Landlord under this Lease. In the event of a sale or assignment of Landlord's interest under this Lease or in the Premises, Tenant shall attorn to and recognize such purchaser or assignee as Landlord under this Lease without further act by Landlord or such purchaser or assignee. 16 lax Leo 2779 v 14110/07 <ij?N(I)r i2ii? (T N7'gRS sat-- 20.2 INSTRUMENTS TO CARRY OUT INTENT. Tenant agrees that, in order to confirm the provisions of this Article, but in no way limiting the self- operative effect of said provisions, Tenant shall execute and deliver whatever instruments may be required for such purposes within ten (10) days following Landlord's written request. Should Tenant fail to sign and return any such instruments within said ten (10) day period, Tenant shall be in default hereunder without the benefit of any additional notice or cure periods specified in this Lease. ARTICLE 21. ESTOPPEL CERTIFICATES 21.1 TENANT'S AGREEMENT TO DELIVER. Within ten (10) days after request therefor from Landlord, Tenant agrees to execute and deliver to Landlord, or to such other addressee or addressees as Landlord may designate (and any such addressee may rely thereon), a statement in writing certifying (if true) that the Lease is in full force and effect and unmodified or describing any modifications; that Tenant has accepted the Premises; that Landlord has performed all of its obligations under the Lease arising prior to the date of the certificate; that there are no defenses or offsets against the enforcement of this Lease or stating with particularity those claimed by Tenant; stating the date to which Rent has been paid; and making such other true representations as may be reasonably requested by Landlord. ARTICLE 22. QUIET ENJOYMENT 22.1 FAITHFUL PERFORMANCE. Upon payment of the Rent herein provided for and the observance and performance of all of the agreements, covenants, terms and conditions to be observed and performed by the Tenant, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term without hindrance or interruption by Landlord or any other person or persons lawfully or equitably claiming by, through or under Landlord. Tenant's rights under this Lease shall be subiect to all documents of record, whether recorded prior to or after the date of this Lease, including but not limited to the OEA and the Declaration. The Lease is ARTICLE 23. SURRENDER AND HOLDING OVER 23.1 DELIVERY AFTER TERM. Tenant shall deliver up and surrender to Landlord possession of the Premises upon the expiration or earlier termination of the Term, broom clean, free of debris, in good order, condition and state of repair (except as may be Landlord's obligation under this Lease and ordinary wear and tear), and shall deliver the keys at the office of Landlord in the Shopping Center or to Landlord at the address to which notices to Landlord are to be sent. If not sooner terminated as herein provided, this Lease shall terminate at the end of the Term as provided for in Article 3 without the necessity of notice from either Landlord or Tenant to terminate the same, Tenant hereby waiving notice to vacate the Premises and agreeing that Landlord shall be entitled to the benefit of all provisions of law respecting the summary recovery of possession of premises from a tenant holding over. 23.2 EFFECT OF HOLDING OVER; RENT. If Tenant or any party claiming under Tenant remains in possession of the Premises, or any part thereof, after any termination or expiration of this Lease, no tenancy or interest in the Premises shall result therefrom, but such holding over shall be an unlawful detainer and all such parties shall be subject to immediate eviction and removal, and Tenant shall upon demand pay to Landlord, as liquidated damages, a sum equal to all Percentage Rent, if any, and Additional Rent provided for in this Lease during any period which Tenant shall hold the Premises after the Term has expired, plus an amount computed at the rate of double the Minimum Annual Rent for such period. In addition, Tenant shall indemnify, protect, defend (by counsel approved in writing by Landlord) and hold Landlord harmless from and against any and all claims, judgments, suits, causes of action, damages, losses, liabilities and expenses (including attorneys' fees and court costs) resulting from such failure to surrender, including, without limitation, any claim made by any succeeding tenant based thereon. The foregoing indemnity shall survive the expiration or earlier termination of this Lease. The foregoing provisions of this Section 23.2 are in addition to, and do not affect, Landlord's right of re-entry or any other rights of Landlord hereunder or otherwise provided by law or equity. ARTICLE 24. CONDEMNATION 24.1 ALL OF PREMISES TAKEN. If the whole of the Premises shall be taken either permanently or temporarily by any right of eminent domain or conveyance in lieu thereof (each being hereinafter referred to as "condemnation"), this Lease shall terminate as of the day possession shall be taken by the condemning authority. 24.2 LESS THAN ALL OF PREMISES TAKEN. 17 lax Legal 2779 v1 4/10/07 If twenty percent (20%) or more of the GLA in the Premises is taken by condemnation or if (regardless of the percentage of the GLA in the Premises which is taken) the remainder of the Premises is divided in two (2) or more units, then in either event Landlord and Tenant shall have the right to terminate this Lease upon ninety (90) days written notice after possession is taken by such condemnation whereupon the Lease shall terminate as of the day possession shall be taken by such condemning authority. Tenant shall pay Rent and perform all of its other obligations under this Lease up to that date. If this Lease is not so terminated, the GLA of the Premises shall be accordingly adjusted as of the date of the taking, Rent shall be accordingly adjusted and any pre-paid Rent shall be proportionately credited or debited to Tenant. Thereafter, the Rent shall be based on the square footage of GLA in the Premises. Landlord agrees, at Landlord's cost and expense, as soon as reasonably possible, to restore the Premises on the land remaining to a complete unit of like quality and character as existed prior to such appropriation or taking, provided that Landlord shall not be required to expend more on such restoration than the condemnation award received by Landlord (less all expenses, costs, legal fees and court costs incurred by Landlord in connection with such award). 24.3 SHOPPING CENTER TAKEN. (a) If any part of the Shopping Center (including any easement appurtenant to Landlord's interest therein) is taken by condemnation so as to render, in Landlord's judgment, the remainder unsuitable (in Landlord's discretion) for use as a retail shopping center, Landlord shall have the right to terminate this Lease upon notice in writing to Tenant within ninet (4-296A90) days after possession is taken by such condemnation. If Landlord so terminates this Lease, it shall terminate as of the day possession is taken by the condemning authority, and Tenant shall pay Rent and perform all of its obligations under this Lease up to that date with a proportionate refund by Landlord of any Rent as may have been paid in advance for a period subsequent to such possession. (b) If title to (i) twenty percent (20%) or more of the GLA of Landlord's Building or (ii) twenty percent (20%) or more of the parking required to be maintained in the Shopping Center is so taken, and if Landlord within eee-ninety days (190) year after such taking has not substituted an equivalent number of parking spaces in a location reasonably accessible to the Shopping Center, then either party may terminate this Lease by notice to the other given within thirty (30) days after the taking or after the expiration of such one (1) year period, as the case may be. 24.4 OWNERSHIP OF AWARD. All damages for any condemnation of all or any part of the Shopping Center, including, but not limited to, all damages as compensation for diminution in value of the leasehold, reversion and fee, shall belong to the Landlord without any deduction therefrom for any present or future estate of Tenant, and Tenant hereby assigns to Landlord all its right, title and interest to any such award. Although all damages in the event of any condemnation are to belong to the Landlord, Tenant may have the right to claim and recover from the condemning authority, but not from Landlord, such compensation as may be separately awarded or recoverable by Tenant in Tenant's own right on account of any and all damage to Tenant's business by reason of the condemnation and for or on account of any cost or loss which Tenant might incur in removing Tenant's merchandise, furniture, fixtures, leasehold improvements and equipment. 24.5 CONFLICTS. If there is a conflict between the provisions of this Article 24 and Article 13, the provisions of Article 24 shall govern. ARTICLE 25. MISCELLANEOUS 25.1 INTERPRETATION. (a) The captions appearing in this Lease are inserted only as a matter of convenience and in no way amplify, define, limit, construe or describe the scope or intent of such sections of the Lease. The neuter, feminine or masculine pronoun when used herein shall each include each of the other genders and the use of the singular shall include the plural. (b) The printed provisions of this Lease were drawn together by Tenant and Landlord, so that this Lease shall not be construed for or against Landlord or Tenant, but this Lease shall be interpreted in accordance with the general tenor of the language in an effort to reach the intended result. (c) Notwithstanding any other provision of this Lease, if the state in which the Premises is located recognizes a distinction between an estate for years and a "usufruct," it is the intention of the parties for this instrument to create a usufruct and not an estate for years. 25.2 RELATIONSHIP OF PARTIES. Nothing herein contained shall be construed as creating any relationship between the parties other than the relationship of Landlord and Tenant, nor cause either party to be responsible in any way for the acts, debts or obligations of the other. 25.3 NOTICES. 18 Jax Legal 2779 vl 4/I0/07 C F','vT Ffl s' (a) Any notice, demand, request, approval, consent or other instrument which may be or is required to be given under this Lease shall be in writing and shall be deemed to have been given when delivered to the party to be notified or when mailed by United States certified mail, return receipt requested, postage prepaid, or when delivered by a courier such as Federal Express, addressed to the party to be notified at the address of such party set forth in Section 1.1(t), or to such other address as such party may from time to time designate by notice to the other in accordance with this Section. (b) No notice required to be given to Landlord shall be effective for any purpose unless and until a true copy thereof is given to each mortgagee of Landlord's estate, provided Tenant has previously been given written notice of the name and address of such mortgagee. (c) Notices required hereunder may be given by an attorney acting on behalf of Landlord or Tenant. 25.4 SUCCESSORS. This Lease shall inure to the benefit of and be binding upon Landlord, its successors and assigns, and shall be binding upon Tenant, its successors and assigns, and shall inure to the benefit of Tenant and only such assigns of Tenant to whom the assignment by Tenant has been made and consented to in accordance with the provisions of this Lease. 25.5 BROKER'S COMMISSION. Landlord has entered into an agreement with the real estate broker specified in Section 1.1(n) of the Lease as representing Landlord ("Landlord's Broker"), and Landlord shall pay any commissions or fees that are payable to Landlord's Broker with respect to this Lease in accordance with the provisions of a separate commission contract. Landlord shall have no further or separate obligation for payment of commissions or fees to any other real estate broker, finder or intermediary. Tenant represents that it has not had any dealings with any real estate broker, finder or intermediary with respect to this Lease, other than Landlord's Broker and the broker specified in Section 1.1(n) of the Lease as representing Tenant ('Tenant's Broker"). Any commissions or fees payable to Tenant's Broker with respect to this Lease shall be paid exclusively by Landlord's Broker. Each party represents and warrants to the other, that, to its knowledge, no other broker, agent or finder (a) negotiated or was instrumental in negotiating or consummating this Lease on its behalf, or/and (b) is or might be entitled to a commission or compensation in connection with this Lease. Any broker, agent or finder of Tenant whom Tenant has failed to disclose herein shall be paid by Tenant. 25.6 UNAVOIDABLE DELAYS. In the event that either party shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure labor or materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war, fire or other casualty or other reason of a similar or dissimilar nature beyond the reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. The provisions of this Section shall not operate to excuse Tenant from prompt payment of Rent or any other payments required by the terms of this Lease and shall not extend the Term. Delays or failures to perform resulting from lack of funds shall not be deemed delays beyond the reasonable control of a party. 25.7 ENTIRE AGREEMENT. There are no oral agreements between the parties hereto affecting this Lease, and this Lease supersedes and cancels any and all previous negotiations, arrangements, letters of intent, lease proposals, brochures, agreements, representations, promises, warranties and understandings between the parties hereto or displayed by Landlord to Tenant with respect to the subject matter thereof. This Lease, including the Exhibits and any addenda, sets forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning the Premises and the Shopping Center. No alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced in writing, signed and mutually delivered between them. 25.8 APPLICABLE LAW. The laws of the state in which the Premises are located shall govern the validity, performance and enforcement of this Lease. 25.9 WAIVER. Failure of either party to insist upon the strict performance of any provision of this Lease or to exercise any option or enforce any rules and regulations shall not be construed as a waiver in the future of any such provision, rule or option. 25.10 ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any such check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided for in this Lease or available at law or in equity. 19 Jax Legal 2779 v1 4/10/07 25.11 LANDLORD'S SELF-HELP. In addition to Landlord's rights of self-help set forth elsewhere in this Lease, if Tenant at any time fails to perform any of its obligations under this Lease in a manner reasonably satisfactory to Landlord, Landlord shall have the right, but not the obligation, upon giving Tenant at least ten (10) days' prior written notice of its election to do so (in the event of an emergency, no prior notice shall be required), to perform such obligations on behalf of and for the account of Tenant and to take all such action necessary to perform such obligations without liability to Tenant for any loss or damage which may result to Tenant's stock or business by reason of such repairs. In such event, Landlord's costs and expenses incurred therein shall be paid for by Tenant as Additional Rent, forthwith upon demand therefor, with interest thereon from the date Landlord performs such work at the Default Rate. The performance by Landlord of any such obligation shall not constitute a release or waiver of Tenant therefrom. 25.12 RECORDING. Tenant agrees that it will not record the Lease, nor a short memorandum thereof. 25.13 JOINT AND SEVERAL LIABILITY. If two or more individuals, corporations, partnerships or other business associations (or any combination of two or more thereof) shall sign this Lease as Tenant, the liability of each of them shall be joint and several. In like manner, if the Tenant named in this Lease shall be a partnership or other business association, the members of which are, by virtue of statute or general law, subject to personal liability, the liability of each such member shall be joint and several. 25.14 EXECUTION OF LEASE. The submission of this Lease for examination does not constitute a reservation of or option for the Premises or any other space within the Shopping Center and shall vest no right in either party. This Lease shall become effective as a Lease only upon execution and legal delivery thereof by the parties, together with the execution and delivery to Landlord of a Guaranty in the form annexed hereto by the Guarantor(s), if any, named in Section 1.1(k) and the delivery by Tenant to Landlord of any documents and monies (if any) required to be delivered by Tenant to Landlord upon Tenant's execution and delivery of this Lease to Landlord. This Lease may be executed in more than one counterpart, and each such counterpart shall be deemed to be an original document. 25.15 WAIVER OF JURY TRIAL. Tenant and Landlord hereby waives trial by jury in any action, proceeding, or permissive counterclaim involving any matters whatsoever arising out of or in any way connected with the Lease, the relationship of Landlord and Tenant, Landlord's and Tenant's use or occupancy of the Premises, or claim for injury or damage. 25.16 TIME OF THE ESSENCE. Time is of the essence of each and every obligation under this Lease. 25.17 TENANT'S AUTHORITY. If Tenant executes this Lease as a limited liability company, partnership, or corporation, then Tenant and the persons and/or entities executing this Lease on behalf of Tenant represent and warrant that: (a) Tenant is a duly organized, authorized and validly existing partnership, corporation or limited liability company, as the case may be, and is qualified to do business in the state in which the Premises is located; (b) such persons and/or entities executing this Lease are duly authorized to execute and deliver this Lease on Tenant's behalf in accordance with the Tenant's operating agreement (if Tenant is a limited liability company), Tenant's partnership agreement (if Tenant is a partnership), or a duly adopted resolution of Tenant's board of directors and the Tenant's by-laws (if Tenant is a corporation), and (c) this Lease is binding upon Tenant in accordance with its terms. Concurrently with Tenant's execution and delivery of this Lease to Landlord and/or at any time during the Term within ten (10) days of Landlord's request, Tenant shall provide to Landlord a copy of any documents reasonably requested by Landlord evidencing such qualification, organization, existence and authorization. 25.18 ANTI-TERRORISM AND MONEY LAUNDERING REPRESENTATION AND INDEMNIFICATION. Tenant certifies that: (i) neither it nor its officers, directors or controlling owners is acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order, the United States Department of Justice, or the United States Treasury Department as a terrorist, "Specially Designated National or Blocked Person," or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control ("SDN"); (ii) neither it nor its officers, directors or controlling owners is engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation; and (iii) neither it nor its officers, directors or controlling owners is in violation of Presidential Executive Order 13224, the USA Patriot Act, the Bank Secrecy Act, the Money Laundering Control Act or any regulations promulgated pursuant thereto. Tenant hereby agrees to defend, indemnify, and hold harmless Landlord from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorneys fees and costs) arising from or related to any breach of the foregoing certification. Should Tenant, during the term of this Lease, be designated an SDN, Landlord may, at its sole option, terminate this Lease. 20 ,?+.?,LNC aim Lepi znv w anam ?`` :?VTF)? c ARTICLE 26. LANDLORD'S RIGHT TO RELOCATE PREMISES 26.1 CONDITIONS ON LANDLORD'S RIGHT TO RELOCATE PREMISES. Landlord shall have the right at any time to require Tenant to surrender the Premises and accept substitute premises (the "New Premises") in the Shopping Center provided the following conditions are met: The New Premises shall be comparable in size, configuration, utility and location to the Premises. 2. Landlord will, at Landlord's sole cost and expense, prepare the New Premises to as nearly the same condition as the Premises as is practical under the circumstances including using Tenant's existing trade fixtures. 3. Landlord will pay all reasonable moving, telephone installation and stationery reprinting costs actually paid for by Tenant in connection with such relocation. 4. Landlord will give Tenant not less than thirty (30) days' notice of Landlord's intention to exercise its rights under this Article. Tenant agrees to cooperate with Landlord in finding the New Premises which are reasonably acceptable to Tenant and in planning improvements, if any, required to the New Premises. 26.2 LANDLORD AND TENANT'S RIGHT TO TERMINATE. If Landlord meets the criteria set forth in Section 26.1 hereof and is unable to provide New Premises which are reasonably acceptable to Tenant, then Landlord or Tenant shall have the right to terminate this Lease by providing aiaety-sixty (9960) days' written notice to the other party. ARTICLE 27. RADIUS RESTRICTION If, during the Term, Tenant or any person, firm or corporation who or which controls or is controlled by Tenant shall directly or indirectly, either individually or as a partner or stockholder or otherwise, owns, operates or becomes financially interested in any business similar to or competing with the business for which Tenant is authorized to use the Premises as provided in Section 1.1 within a radius of five (5) miles from the outside boundary of the Shopping Center as presently constituted, the "Gross Sales" (as defined in this Lease) of any such business or businesses within said radius shall, without limiting Landlord's other remedies under this Lease including holding Tenant in default, be included in the Gross Sales made from the Premises for all purposes of this Lease and the Percentage Rent hereunder shall be computed upon the aggregate of the Gross Sales made from the Premises and by any such other business or businesses then conducted within said radius. This Article shall not apply to any such business or businesses which is owned by Tenant and is open and in operation within said radius prior to the date of this Lease. ARTICLE 26. EXCLUSIVE Landlord will not lease in the future to any tenant in the Landlord's Building for the purpose of conducting within the Landlord's Building as its principal business the sale of: pizza It is understood that this exclusive shall not apply to any existing tenants. It is further understood that other tenants or occupants in the Landlord's Building may sell one or more of the restricted items as an incidental part of their business, and permission heretofore or hereafter granted by the Landlord to conduct such incidental sales shall not be deemed to violate this covenant. It is further understood that should Tenant fail to reach its percentage rent break point in any twelve (12) month period after the first lease year or should Tenant become in default under any provision of the Lease, then this exclusive shall immediately terminate and be of no further force or effect. This exclusive shall terminate should this Lease be assigned and, as a result of such assignment, the use of the Premises is changed from the primary use set forth in Section 1.10) of the Lease or if the use of the Premises is otherwise changed from the primary use set forth in Section 1.10) of this Lease. Landlord reserves the right to lease (or consent to the use of) any space in the Landlord's Building without imposing any restriction on the use of such space to any tenant whose principal business at the time the lease is made (or consent is given) is that of department store, junior department store, variety store, grocery store, drug store, or to any tenant initially occupying more than 20,000 square feet of GLA, it being understood that Landlord shall not be obligated to restrict the use of any of such space in any manner whatsoever. ARTICLE 29. OPTION TO EXTEND Tenant shall have the option, exercisable by written notice to Landlord, by certified mail, return receipt requested, given not later than six (6) months prior to the expiration of the initial Term or the extended option, if any, as the case may be, to extend the Lease for two (2) further terms of sixty (60) months each 21 Jax Legal 2779 vl 4/I0/07 on the same terms and conditions as provided in this Lease, except that: (a) Landlord shall have no obligation to make any improvements to the Premises; and (b) Minimum Annual Rent for the first extended term shall be as set forth below: Months $ Per Square Foot Per Annum 121 -132 $40.38 133 - 144 $41.59 145 - 156 $42.83 157 - 168 $44.12 169 - 180 $45.44 (c) Minimum Annual Rent for the second extended term shall be as set forth below: Months $ Per Square Foot Per Annum 181 -192 $46.81 193 - 204 $48.21 205 - 216 $49.66 217 - 228 $51.15 229 - 240 $52.68 and (d) there shall be no option to further extend the term. Notwithstanding the foregoing, this Option to Extend this Lease shall be deemed null and void if one or more of the following has occurred: 1. Tenant has been late in the payment of rent on three (3) or more occasions within any twelve (12) month period. For this purpose, a payment shall be deemed to be late if it is received by Landlord after the second day of the month in which such rent is due. P Tt-Annt hAr been late on !hFee (3) or more GGGaSiORS WithiR aRY twelve (12) MeRth shall be deemed to be late is FeeeiyeEl by !he Lapd'Wd on OF alteF the 24 Gt Elay of thein%-,?.th: 2. Tenant is in default in the performance of any of its obligations under the Lease. 3. Tenant has failed to give written notice by certified mail, return receipt requested, to Landlord six (6) months prior to the expiration of the initial term. 4. The Lease has ever been assigned. ARTICLE 30. ADDITIONAL MAINTENANCE REQUIREMENTS If Tenant uses the Premises for the purpose of operating a restaurant, hair salon, nail salon, barber shop or similar use, Tenant shall, at its sole cost and expense, clean all plumbing and sewer lines up to the main sewer line on a regular basis, no less often than quarterly and provide Landlord with written evidence thereof. Tenant shall also be responsible and shall pay for any repairs to the roof and other components of the Shopping Center caused by grease vented from the Premises. In addition, Tenant shall at its sole cost and expense, install a venting or exhaust system approved by Landlord in writing in order to remove any noxious fumes or odors caused by Tenant's use of the Premises. ARTICLE 31. ADDITIONAL REQUIREMENTS FOR RESTAURANT USE IN PREMISES 31.1 REQUIREMENTS FOR WASHDOWN AREAS. Landlord requires that the following materials be furnished and installed for all Tenant kitchen/food preparation areas where a wash down procedure takes place: 1. All areas must contain a minimum of one (1) floor drain. 22 Jax Legal 2779 Y1 4/10/07 0?I?f;?;??,,? IN r.. IV r r tc 2. All floor surfaces must be covered with a waterproof/cleanable surface that extends a minimum of six (6) inches up the wall. 3. The next two (2) vertical feet of wall surface treatment above the base material should be waterproof, i.e. a marlite fiberglass reinforced panel. These requirements are in-place to prevent water from entering the drywall partitions contained within the Tenant space. ARTICLE 32. TENANT ALLOWANCE Tenant agrees to accept the Premises "as is". Unless otherwise stated in this Article, Landlord agrees to reimburse Tenant the amount stated in Section 1.1(u) of this Lease as a tenant finish allowance. Said allowance shall be due and payable to Tenant within thirty (30) days after the following conditions have been met: (a) Tenant is open for business with the public in the entire Premises and has paid the first month's rent due in advance and security deposit, if any. (b) Tenant has furnished to Landlord original affidavits, original lien waivers on Regency's standard waiver form and paid receipts for physical improvements performed within and for the Premises from Tenant's general contractor, and all sub-contractors and material suppliers. This support provided to Landlord should be reasonably satisfactory in establishing payment in full for all labor and materials, which may form a predicate for a claim of lien against the Premises. The actual amount of the reimbursement will be the lesser of the sum total of all the receipts or the amount stated in Section 1.1(u) of this Lease. (c) A certificate of occupancy (or an equivalent) from the governmental authority having jurisdiction has been delivered to Landlord. (d) Landlord has received and approved a copy of a HVAC maintenance agreement as required by Section 13.2. (e) Landlord has received a certificate of insurance as required by Section 11.4. (f) Receipt by Landlord of evidence that Tenant has paid its utility deposits and local government impact fees. (g) Receipt by Landlord of Tenant's As Built plans confirming compliance with the Americans with Disabilities Act. (h) Receipt by Landlord of a Form W-9, Request for Taxpayer Identification Number and Certification, executed by Tenant. (i) Tenant is not in default. (j) Tenant has installed its permanent signage on the exterior of the Premises. If Tenant fails to request reimbursement of the tenant finish allowance within one hundred eighty (180) days of receiving its certificate of occupancy for the Premises, then this Section shall be deemed terminated and null and void. Tenant may request an extension of the one hundred eighty (180) day period with thirty (30) days prior written notice to Landlord. ARTICLE 33. LANDLORD'S SUBORDINATION OF LIEN Landlord agrees to subordinate its Landlord's lien to the lien, operation and effect of any security interest granted by Tenant to an institutional lender encumbering all or part of Tenant's personal property, trade fixtures or inventory on the Premises pursuant to the Landlord Waiver Agreement attached hereto as Exhibit "I". ARTICLE 34. LANDLORD'S LIEN TO SECURE THE PAYMENT OF ALL RENTAL AND OTHER SUMS OF MONEY DUE OR TO BECOME DUE HEREUNDER AND THE FAITHFUL PERFORMANCE OF THIS LEASE BY TENANT, TENANT HEREBY GRANTS TO LANDLORD AN EXPRESS FIRST AND PRIOR CONTRACTUAL LIEN AND SECURITY INTEREST ON ALL PROPERTY (INCLUDING, BUT NOT LIMITED TO, FURNITURE, FIXTURES, EQUIPMENT, INVENTORY, CHATTELS AND MERCHANDISE AND ALL ACCESSORIES THERETO AND ALL PROCEEDS THEREOF) WHICH MAY BE PLACED ON THE PREMISES, AND ALSO UPON ALL PROCEEDS OF ANY INSURANCE WHICH MAY ACCRUE TO TENANT BY REASON OF DESTRUCTION OF OR DAMAGE TO ANY SUCH PROPERTY. SUCH PROPERTY SHALL NOT BE REMOVED FROM THE PREMISES WITHOUT THE WRITTEN CONSENT OF LANDLORD UNTIL ALL 23 Ja Legal 2779 v1 4/10/07 IN ARREARAGES IN RENTAL AND OTHER SUMS OF MONEY THEN DUE TO LANDLORD HEREUNDER SHALL FIRST HAVE BEEN PAID. ALL EXEMPTION LAWS ARE HEREBY WAIVED IN FAVOR OF SAID LIEN AND SECURITY INTEREST. THIS LIEN AND SECURITY INTEREST IS GIVEN IN ADDITION TO LANDLORD'S STATUTORY LIEN AND SHALL BE CUMULATIVE THERETO. UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT, THIS LIEN MAY BE FORECLOSED WITH OR WITHOUT COURT PROCEEDINGS, BY PUBLIC OR PRIVATE SALE, PROVIDED LANDLORD GIVES TENANT AT LEAST TEN (10) DAYS NOTICE OF THE TIME AND PLACE OF SAID SALE, AND LANDLORD SHALL HAVE THE RIGHT TO BECOME THE PURCHASER UPON BEING THE HIGHEST BIDDER AT SUCH SALE. CONTEMPORANEOUSLY WITH THE EXECUTION OF THIS LEASE (AND IF REQUESTED HEREINAFTER BY LANDLORD), TENANT SHALL EXECUTE AND DELIVER TO LANDLORD UNIFORM COMMERCIAL CODE FINANCING STATEMENTS IN SUFFICIENT FORM SO THAT, WHEN PROPERLY FILED, THE SECURITY INTEREST HEREBY GRANTED SHALL THEREUPON BE PERFECTED. IF REQUESTED HEREAFTER BY LANDLORD, TENANT SHALL ALSO EXECUTE AND DELIVER TO LANDLORD UNIFORM COMMERCIAL CODE FINANCING STATEMENTS IN SUFFICIENT FORM TO REFLECT ANY AMENDMENT OR MODIFICATION IN OR EXTENSION OF THE AFORESAID CONTRACTUAL LIEN AND SECURITY INTEREST HEREBY GRANTED. TENANT HEREBY GRANTS TO LANDLORD TENANT'S POWER-OF-ATTORNEY TO EXECUTE SAID FINANCING STATEMENTS IN TENANT'S NAME, PLACE AND STEAD. SAID POWER IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE. LANDLORD SHALL, IN ADDITION TO ALL OF LANDLORD'S RIGHTS HEREUNDER, HAVE ALL OF THE RIGHTS AND REMEDIES OF A SECURED PARTY UNDER THE UNIFORM COMMERCIAL CODE AS ADOPTED IN THE STATE IN WHICH THE PREMISES ARE LOCATED. A COPY OF THIS LEASE MAY BE FILED AS A NOW STANDARD FINANCING STATEMENT. ARTICLE 35. TENANT'S FINANCIAL STATEMENTS Upon ten (10) days prior written request from Landlord (which Landlord may make at any time during the Term but no more often than two (2) times in any calendar year), Tenant shall deliver to Landlord (a) a current financial statement of Tenant and any Guarantor of this Lease (if any), and (b) financial statements of Tenant and any such Guarantor for the two (2) years prior to the current financial statement year. Such statements shall be prepared in accordance with generally acceptable accounting principles and certified as true in all material respects by Tenant (if Tenant is an individual) or by an authorized officer of Tenant (if Tenant is a corporation or limited liability company) or a general partner of Tenant (if Tenant is a partnership). ARTICLE 36. SECURITY DEPOSIT 36.1 SECURITY. As security for the faithful performance by Tenant of all of the terms and conditions of this Lease on the Tenant's part to be performed, Tenant shall concurrently with Tenant's execution and delivery of this Lease to Landlord, deposit with Landlord the Security Deposit required by Section 1.1(m). The Security Deposit shall be held by Landlord as security for the full and faithful performance by Tenant of all of the terms, covenants and conditions of this Lease to be performed by Tenant during the Term. The Security Deposit is not, and may not be construed by Tenant to constitute Rent for the last month or any portion thereof. If Tenant defaults with respect to any of its obligations under this Lease, Landlord may (but shall not be required to) use, apply or retain all or any part of the Security Deposit for the payment of any Rent or any other sum in default, or for the payment of any other amount, loss or damage which Landlord may spend, incur or suffer by reason of Tenant's default. If any portion of the Security Deposit is so used or applied, Tenant shall, within ten (10) days after demand therefor, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to its original amount. Landlord shall not be required to keep the Security Deposit separate from its general funds, and Tenant shall not be entitled to interest on the Security Deposit. If Tenant shall fully and faithfully perform every provision of this Lease to be performed by it, the Security Deposit or any balance thereof shall be returned to Tenant within two (2) weeks following the expiration of the Lease Term, provided that Landlord may retain the Security Deposit until such time as any amount due from Tenant under this Lease has been determined and paid in full. 36.2 TRANSFER OF DEPOSIT. In the event of a sale of the Landlord's Building or lease of the Landlord's Building or the land on which it stands, subject to this Lease, the Landlord shall have the right to transfer this Security Deposit to the vendee or lessee and the Landlord shall thereupon be released from all liability for the return of such Security Deposit, and Tenant shall look to the new landlord solely for the return of the said Security Deposit. This provision shall apply to every transfer or assignment made of the Security Deposit to a new landlord. The Security Deposit deposited under this Lease shall not be mortgaged, assigned or encumbered by the Tenant without the written consent of the Landlord. In the event of any authorized assignment of this Lease, Landlord shall have no further liability with respect to the return of said Security Deposit to the Tenant or assignee. 24 lax Legal 2779 v1 4/10/07 /.rF aN IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the day and year first above written. ss Witness ess ness LANDLORD: SILVER SPRING SQUARE II, L_P1 a Delaware 6limited Ppartnership By: Regency Realty Group, Inc. a Florida Ccorporation Its: Gerte-§iPartner _ n I J By: I J?.- Its: VICE PRESIDIFNIT TENANT: ZPIZZA INTERNATIONAL, INC., a corpor tion ?F r By: Its' Attest: Its: ( ` Tax I.D.#: 20/ $tjgO$FIO Execution: Corporate: This Lease must be executed for Tenant, if a corporation, by the president or vice president and attested by the secretary or assistant secretary, unless the bylaws or a resolution of the Board of Directors shall otherwise provide, in which event, a certified copy of the bylaws or resolution, as the case may be, must be furnished. Also, the corporate seal of Tenant, if Tenant has such a seal, must be affixed. Individual: This Lease must be executed by each individual whose name appears under the signature lines. Their execution must be witnessed by two (2) disinterested persons who must sign as witnesses in the space provided. 25 Jm Legal 2779 vl 4/10/07 INI Z' R EXHIBIT A LEGAL DESCRIPTION OF SHOPPING CENTER KREITZER / SPEEDWAY TRACT PREMISES "A" ALL THAT CERTAIN piece or parcel of land, hereditaments and appurtenances, situate in Silver Spring Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point in the center line of Market Place, said point being North 5 degrees res 27 minutes East 364.48 feet from the Northern right-of-way line of U.S. Route No. I I (the Carlisle PikeL thence along the center line of Market Place. North 5 degrees 27 minutes East 319 plus or minus feet to a point; thence along land now or formerly of Donald Carter. South 89 degrees 0 minutes West 495.34 feet to a point; thence along land of Silver Spring Theaters. Inc., North 1 degree 0 minutes West 71 feet to a point; thence along the same, North 89 degrees 21 minutes West 789.10 feet to a point; thence along land of Pennsylvania Supply Company, North 12 degrees 15 minutes West 686 plus or minus feet to a point; thence along land now or formerly of Snyder, North 79 degrees 15 minutes East 1,574 plus or minus feet to a point; thence along land now or formerly of Harry E. Horton, South 67 degrees 45 minutes East 230 feet to a point; thence along the same North 78 degrees 45 minutes East 143 feet to a point: thence along land now or formerly of Franklin Shaeffer, South 43 degrees 30 minutes East 767.25 feet to a point in the Lambs Gap Road-, thence along the same South 12 degrees 0 minutes East 50 plus or minus feet to apoint, thence along land now or formerly of Percy S. Williams, South 85 degrees 0 minutes West 240.50 feet to a point: thence along the same, South 6 degrees 48 minutes East 150.07 feet to a point; thence along the same, North 85 degrees 0 minutes East 195 plus or minus feet to a point on the Westerly dedicated right-of-way line of Lambs Gap Road; thence along the same, South 11 degrees 15 minutes 45 seconds East 82 plus or minus feet to a point; thence along the same Southwardly by a curve to the left having a radius of 2,332.01 feet, an arc length of 50.54 feet to an iron pin at the Northeastern corner of Lot No. 4 on that certain Plan of Lots of Silver Spring Businesses, Inc., dated November 18. 1988, prepared by Whittock & Hartman Engineers & Surveyors, and recorded in Cumberland County Plan Book 57. Page 8; thence along the Northern line of the aforesaid Lot No. 4, South 77 degrees 29 minutes 45 seconds West 156.25 feet to a point; thence along the same, North 6 degrees 2 minutes 30 seconds West 72.38 feet to a point; thence along the same, South 83 degrees 57 minutes 30 seconds West 125 feet to a point; thence along the Western boundary of the aforesaid Lot No. 4. South 4 decrees 2 minutes 30 seconds East 195 feet to a point- thence along the same and along the Western boundary of Lot No. 3 on the aforesaid Plan of Silver Spring Businesses, Inc., dated November 18, 1988, and recorded as aforesaid South 22 degrees 25 minutes East 126.20 feet to a point on the Northern line of lands of Silver Spring Mobile Home Park; thence alone the same. South 73 degrees 46 minutes West 403.96 feet to a point, thence along the same, South 18 degrees 26 minutes East 110 feet to a point, thence along the same, South 85 degrees 9 minutes West 374 feet to a point in the center line of Market Place, the place of BEGINNING. CONTAINING approximately 53 plus or minus acres. BEING the same premises which Silver Springs Businesses, Inc. a Pennsylvania Corporation, by Indenture dated December 21, 1988 and recorded in the Recorder of Deeds in and for the County of Cumberland. aforesaid in Plan Book S33 page 769 &c granted and conveyed unto Silver Spring Speedway Inc a Pennsylvania Corporation in fee BEING Parcel No. 38-07-0457-00-8 EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE PREMISES "B" ALL THAT CERTAIN piece or parcel of land hereditaments and appurtenances Situate in Silver Spring Township, Cumberland County, Pennsylvania more particularly bounded and described as follows, to wit, 05/08/07^ ,-?i BEGINNING at a point on the Western right-of-way line of Lambs Gap Road at the Northeastern corner of lands of Robert Yentzer thence along the Northern line of lands of Robert Yentzer, South 66 degrees 58 minutes 30 seconds West 68.78 feet to a point on the Northeast corner of lands of Silver Spring Mobile Home Park: thence along the Northern line of lands of Silver Spring Mobile Home Park, South 80 degrees 40 minutes 30 seconds West 185 feet to a point; thence along the same, North 22 degrees 25 minutes West 116.86 feet to a point; thence along the same, South 73 degrees 46 minutes West 32.10 feet to a point at the Southeastern corner of other lands of Silver Springs Businesses, Inc.: thence along the same, North 22 degrees 25 minutes West 29.11 feet to a point at the Southwestern corner of Lot No. 4 on the hereinafter mentioned Plan of Lots: thence along the Southern line of Lot No. 4, North 63 degrees 56 minutes East 296.36 feet to a point on the Western right-of-way line of Lambs Gap Road; thence along Western right-of-wav line of Lambs Gap Road Southwardl,y on a curve to the left having a radius of 2,332.01 feet, an arc length of 210.07 feet to a point, the place of BEGINNING. CONTAINING 1.12 acres, more or less. BEING Lot No. 3 on that certain Plan of Lots of Silver Springs Businesses Inc dated November 18, 1988, prepared by Whittock & Hartman Engineers & Surveyors recorded in Cumberland County Plan Book 57, Pape 8. BEING part of the same premises which Silver Springs Businesses. Inc. (a Pennsylvania Corporation), by Indenture bearing date the 21st day of December A.D. 1988 and recorded in the Office of the Recorder of Deeds in and for the County of Cumberland, aforesaid, in Deed Book S-33 page 774 &c., granted and conveyed unto Alan G. Kreitzer, in fee. BEING 38-07-0457-013 EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE PREMISES "C" ALL THAT CERTAIN piece or parcel of land hereditaments and appurtenances, Situate in Silver Spring Township, Cumberland County Pennsylvania more particularly bounded and described as follows to wit: BEGINNING at a point on the Western right-of-way line of Lambs Gap Road at the Northeastern corner of Lot no. 3 on the hereinafter mentioned Plan of Lots; thence along the Northern line of Lot No. 3, South 63 degrees 56 minutes West 296.36 feet to a point on the Eastern line of other lands of Silver Springs Businesses Inc : thence along the same North 22 degrees 25 minutes West 97.09 feet to a point thence along the same North 4 degrees 2 minutes 30 seconds West 195 feet to a point thence along the same North 83 degrees 57 minutes 30 seconds East 125 feet to a point thence along the same South 6 degrees minutes 30 seconds East 72.38 feet to a point thence along the same North 77 degrees 29 minutes 45 seconds East 156.25 feet to a point on the Western right-of-way line of Lambs Gap Road; thence along the Western right-of-way line of Lambs Gap Road Southwardly on a curve to the left having a radius of 2,332.01 feet an arc length of 133 10 feet to a point. the place of BEGINNING. CONTAINING 1.37 acres, more or less. BEING Lot No. 4 on that certain Plan of Lots of Silver Springs Businesses Inc dated November 18, 1988, prepared by Whittock & Hartman Engineers & Surveyors and recorded in Cumberland County Plan Book 57, Page 8 BEING part of the same premises which Silver Springs Businesses Inc (a Pennsylvania Corporation), by Indenture bearing date the 21 st day of December A.D. 1988 and recorded in the Office of the Recorder of Deeds in and for the County of Cumberland aforesaid in Deed Book S-33 page 774 &c., granted and conveyed unto Alan G Kreitzer, in fee BEING 38-07-0457-014. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE ` PREMISES "D" 1 os/oeio?ea,?efeae4fe6{,??ea{ea{a+e? ?- ALL THAT CERTAIN tract or parcel of land, Hereditaments and Appurtenances, Situate in Silver Spring Township, Cumberland County, Pennsylvania, more particularly described as follows, to wit: BEGINNING at a point on the North side of the Carlisle Pike, said point being in the center line of Market Place; thence along the center line of Market Place, North 5 degrees 27 minutes East, 364.48 feet to a point; thence along Lot No. 1, North 85 degrees 9 minutes East, 374 feet to a point; thence alone same. North 18 degrees 26 minutes West, 110 feet to a point; thence along same, North 73 degrees 46 minutes East, 436.06 feet to a point; thence along same, South 22 degrees 25 minutes East, 116.86 feet to a point; thence along same, North 80 decrees 40 minutes 30 seconds East. 185 feet to a point; thence along land of Robert Yentzer, South 24 degrees 38 minutes East, 200.68 feet to a point: thence alone same, South 17 degrees 33 minutes West, 186.70 feet to a point; thence along same, South 12 degrees 31 minutes 35 seconds West, a distance of 137.26 feet to a point on the North side of Carlisle Pike: thence along same, South 89 degrees 0 minutes West, 32.21 feet to a point; thence along land of Wilbert E. Kreitzer, Jr., North 8 degrees 27 minutes West, 126.07 feet to a point: thence along same and land of Margaret Garver, South 89 degrees West 263.63 feet to a point; thence along land of Margaret Garver, South I degree East, 155 feet to a point on the North side of Carlisle Pike; thence along same. South 89 degrees West, 704.42 feet to a point, the place of beginning. CONTAINING approximately 10.43 acres. BEING Lot No. 2 on the Final Subdivision Plan for Ray Garver, Inc., recorded in the Office of the Recorder of Deeds in and for Cumberland County. Pennsylvania, in Plan Book 37 page 86. BEING the same premises which Jean Mover and Robert A. Mover, by Indenture dated Mauch 13, 1989 and recorded in the Recorder of Deeds in and for the County of Cumberland. aforesaid, in Deed Book V-33 page 614 &c., granted and conveyed unto Alan G. Kreitzer, in fee. BEING Parcel #38-18-1325-001 EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following cleed: NONE PREMISES "E" ALL THAT CERTAIN piece or parcel of land Hereditaments and Appurtenances Situate in Silver Springs Township Cumberland County Pennsylvanil more particularly bounded and described as follows, to wit: BEGINNING at an iron stake on the Northerly side of U.S. Route #11, commonly known as the Carlisle Pike, said iron stake being 643 feet Westwardly of the intersection of the Northerly side of U .S. Route #11 and the center line of Legislative Route #21051 • thence along the Northerly side of U.S. Route #11 North 82 degrees 15 minutes West 127 feet to an iron pin: thence along other land now or late of Rav Garver Inc North 7 degrees 45 minutes East 180 feet to an iron pin- thence along other land now or late of Ray Garver, Inc. South 82 degrees 15 minutes ast 127 feet to an iron pin thence along other land now or late of Ray Garver, Inc. South 7 degrees 45 minutes West 180 feet to an iron stake, the place of beginning. KNOWN AND NUMBERED as 6408 Carlisle Pike. Mechanicsburg. BEING the same premises which Margaret E Garver, widow by Indenture dated September 21, 2001 and recorded in the Recorder of Deeds in and for the County of Cumberland aforesaid, in Deed Book Volume 248 page 4360 &c granted and conveyed unto Alan G. Kreitzer, in fee. UNDER AND SUBJECT to valid building, zoning deed and plan restrictions right of the public and others in the roads streets and alleyways adjoining the described premises and easement of record and apparent BEING Parcel #38-18-1325-002. I os/oe/o? E EXCEPTING thereout and therefrom (if any) the premises as more fullxdescribed in the following deed: NONE PREMISES "F" ALL THAT CERTAIN lot or piece of around with the buildings and improvements thereon erected, Hereditaments and Appurtenances, SITUATE in Silver Spring Township, County of Cumberland and State of Pennsylvania, bounded and described as follows, to wit: BEGINNING at an iron stake on the Northerly side of U.S. Route No. 11, commonly luiown as the Carlisle Pike, said iron stake being a distance of 480 feet Westwardly of the intersection of the Northerly side of U.S. Route No. I 1 and the center line of Legislative Route No. 21051; thence along the Northern side of U.S. Route No. I I Notch 82 degrees 15 minutes West, a distance of 163 feet to an iron pin: thence along land now or formerly Margaret E. Garver North 7 degrees 45 minutes East a distance of 180 feet to an iron pin; thence along lands now or formerly of Ray Garver, Inc., South 82 degrees 15 minutes East a distance of 136.63 feet to an iron pin; thence South 0 degrees 25 minutes West a distance of 181.92 feet to an iron stake, the point and place of beginning. HAVING thereon erected a ranch-type dwelling house known and numbered as 6406 Carlisle Pike. BEING the same premises inter alia which Alan G. Kreitzer and Sherry E. Kreitzer, husband and wife, by Indenture dated September 12, 2003 and recorded in the Recorder of Deeds, ill and for the County of Cumberland, aforesaid, in Deed Book 259 page 1475 &c., granted and conveyed unto Alan G. Kreitzer, in fee. UNDER AND SUBJECT to valid building, zoning, deed and. Plan restrictions, right of the public and others in the roads, streets and alleyways adjoining the described premises and easements of record and apparent. BEING Parcel #38-18-1325-003. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE PREMISES "G" ALL "THAT CERTAIN piece, parcel or tract of land, Hereditaments and Appurtenances, Situate in Silver Spring Township, Cumberland county, Pennsylvania, bounded and described as follows, to wit: BEGINNING at an iron pin said pin being the Northeast corner of the Garver Tract No. I ; thence South 43 degrees 30 minutes East 150 feet more or less to a point near the bank of a dam; thence South 78 degrees 45 minutes West along a new wire fence 143 feet more or less, to a post on an old fence line; thence along an old fence line North 67 degrees 45 minutes West 230 feet to a post on the boundary line between the Garver Tract No. 1 and the Charles Weary Estate land; thence along the Weary Estate North 79 degrees 15 minutes East 251 feet, more or less to an iron pin place of BEGINNING GRANTING AND CONVEYING to the Grantee his heirs and assigns a right-of-way over the abandoned Township road on the South side of the Silver Spring stream. BEING the same premises inter alia which Alan G Kreitzer and Sherry E Kreitzer husband and wife, by Indenture dated September 12, 2003 and recorded in the Recorder of Deeds, in and for the County of Cumberland, aforesaid in Deed Book 259 page 1475 &c., granted and conveyed unto Alan G Kreitzer, in fee. BEING Parcel No. 38-18-1325-005. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE CARTER TRACT PREMISES A " C? 3F ALL THAT CERTAIN lot of land, hereditaments and appurtenances, Situate in the "Township of Silver Spring, County of Cumberland and State of Pennsylvania bounded and described as follows: BEGINNING at a point on the Northerly right-of-way line of State Highway U.S. Route 11, the Carlisle Pike, at the Easterly line of land of Silver Spring Theaters, lnc.; thence North degree West along said land of Silver Spring Theaters, Inc., 200 feet to an iron pin at the Southerly line of land now or late of Donald L. Carter; thence along said Carter land North 89 degrees East 441.19 feet to a PK nail on the Westerly line of lands now or late of Ray Garver, htc.; thence South 5 degrees 27 minutes West along said Garver lands 201.27 feet to a point marked by a PK nail on the Northerly right-of-way line of Carlisle Pike; thence by the latter line South 89 degrees West 418.58 feet to the iron pin at the place of BEGINNING. CONTAINING 1.97 acres and being lot number 2 on the final subdivision plan for Stanley Armitage approved by Supervisors of Silver Spring Township on September 29. 1976, dulv recorded in the Cumberland County Recorders Office, subject to a right-of-way along the Eastern boundary thereof 30 feet in width for the common use of the parties entitled by prior recorded conveyances and of the public as indicated on said Plan. BEING the same premises which West Shore Public Library Association, a Pennsylvania non-profit corporation, by Indenture dated June 22, 1981 and recorded in the Recorder of Deeds, in and for the County of Cumberland, aforesaid, in Deed Book L29 page 627 &c., granted and conveyed unto Donald L. Cater and Marian E. Carter, husband and wife, in fee. BEING Parcel #38-19-1608-004. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE PREMISES B ALL THAT CERTAIN lot of ground, Hereditaments and Appurtenances. Situate in Silver Spring Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at a point on the Easterly line of land now or formerly of Silver Spring Theaters, Inc., said point being located 200 feet measured Northwardly along said line fi'om an iron pin at the Northern right-of-wav line of the State Highway, U.S.Route 11. the Carlisle Pike; thence North 01 degree West along said land of Silver Spring Theaters Inc 479 feet to an iron pin on the Southerly line of land of Ray Garver Inc ' thence by the latter land, North 89 degrees East 495.34 feet to a railroad spike: thence by other land of Ray Garver, Inc., South 05 degrees 27 minutes West 481 feet more or less to a Northwardiv from the said Carlisle Pike, and along other property of Stanley N Armitage 445 feet more or less to the place of Beginning. BEING the same premises which Commonwealth National Bank Executor of the Will of Stanley N. Armitage, by Indenture dated May 6 1997 and recorded in the Recorder of Deeds, in and for the County of Cumberland aforesaid in Miscellaneous Book D27 page 781 &c., granted and conveyed unto Donald L. Carter, in fee TOGETHER with and subject to the right to use the private road along the East part of the premises described in the deed above referred t as set forthin agreement dated Februay 8 1954• recorded in Miscellaneous Book 106, gage 85 BEING Parcel #38-19-1608-004A. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE ®/_). CARLISLE 1`11M (US ROUfE 11) ?".? Building The site plan is pmunted wWy%,the page.. d idemirying d+e apprvimah 1-tim and:itc aFtha WWig pnsarNy<ene 6:d hythe a- cats, see dimenti.ns, aceessand p+Adrig areal, ezeeng tevnt bcatiara and identm art aAl ctto ehmge aithcN naive end atth. -di-6- it Unit n.mben u indiaa4d art not nrsesadly the actual vile nunker, an! art inendad /er us as • m:ertnce pny. Jvvhnrra nip ¢cr tnp z Ph:ladelphiaOffice National Reach. Local Expertise. F '\r 610.747.1200 866.256.2058 mgencycentels.com QUALITY cNOn ri H,: crn re ns R.W A Beat Act 30.038 3a FT. R@W1a Ol0.e Mu Z IS.W0Sa FT. R C Flew Ore.. t., W. 31,187 Safi. Rrap00 8d Odh aad Bayurd 30,800 XFF. RaY:1 E1 UM R17pa1 7.820 Sa FT. Raml E2 URp 10.000 Sa FT. Rob l1 F Wgmns 130.000 M FT. Roo:: C Taut :30.377 Sa F7. N7 ChasWiprCMrtarpr 3,280 St F7. N0 Cdaay tM 160050. FE Fet?t: Ya.. 1,600 Sa FT. N75 Qtpla WMlr. 2,000 Sa FT. Rat I ttt.BMa SiWrMaaa. 5,623 Sa fT. Raa C IiN81 8.000 $& FT. Bask E Wade a 5,800 Sa FT. Rapt F CS:chJ94 3.000 X FT. Bad 1 PING mad 3.000 $a FE 0003 8d- /tla Park 6,750 Sa FT. ® N Rev. 04124/07 M X 2 W Silver Spring Square Carlisle Pike (US Route 11) & Lambs Gap Road (SR 1101) Silver Spring Township, Pennsylvania 17050 -h r \ z CARLISLE PIKE NS ROUTE 11) + Thi::iw plan is plumed Willy %, the puTm of ideablyin3 do apprmim.te 1.4m and sift d the W i Urj p-dy,."1aad by the caner. 6uild?n[:ee:.:d. dimendon; ores and paAerty areal eaiwrg bent localnns am identities art ¢b*t ta eh.rW •itW netke and at the omen diocretiaa. Unit numken as indiuW n not-allahly ar. aM.l vik nonben ani - intended fore as a refennce any. ROWA But Bay 1"B 100 Mu ROMIC IWs Otass br1.. RdidB BW 620&W Beyaed Rawl E1 RaYN E3 kilt RnWIF WWOM ® N 40 Philadelphia Office 610.747.1200 866.256.2058 regencycentets.cotn National Reach. Local Expertise 30.010 S0 F7. 10.00030. ET. x.ahmn, nine at?F QUALITY :Warren;: oe.rena Rev. 04124!07 V a N r M a N Z L1 V r D Z M x x Silver Spring Square Carlisle Pike (US Route 11) & Lambs Cap Road (SR 1101) Silver Spring Township, Pennsylvania 17050 RWII Lett g- feaUtt... 3,02330 FT. Bat C C"s 5.00040 Fi. BaA E Yhatom 5.00050 FT. RM F CWck-F04 3.000 SO. FT. Bank I PNC hat 3.000 30 FT. 0003 A:Itoac- Ants Parts 0.7so 30 F7. EXHIBIT C DESCRIPTION OF TENANT'S WORK AND WORK TO BE PERFORMED BY LANDLORD A. Procedure for the Preparation and Approval of Working Drawings and Specifications. Tenant shall, within ten (10) days after the date of execution of this Lease, deliver to the Landlord for its review and approval two (2) sets of drawings and specifications for the Tenants proposed improvements to the Premises. One set will be returned to the Tenant and one set will be retained by the Landlord. Such drawings shall consist of at least a site plan (if sitework changes to utilities, paving, landscaping, mechanical, electrical, or plumbing systems etc. are proposed), a floor plan, and exterior building elevations (if any modifications are proposed to the storefront or exterior walls) done at a reasonable scale, which will convey detail and intent, as well as an indication of color selection and graphics. Storefront elevations shall include specification of materials and color scheme. The following conditions, as applicable, are to be clearly detailed on the drawings: New roof penetrations, including plumbing penetrations for vent stacks, or any modifications to the roof system New equipment (satellite dishes, HVAC, etc.) installed on the roof Underground utility changes and pavement demolition/replacement Modifications to exterior walls to include new doors, windows, finishes, etc. Anything to be mounted on the exterior walls Changes to electrical, water, or gas service Changes to the concrete floor slab Grease trap location If Landlord does not, within fourteen (14) days after receipt of the Tenant's preliminary plans, indicate its disapproval, the same shall be deemed approved. However, Landlord shall not be responsible for items noted or inferred to be furnished and installed by Landlord unless item is specifically noted in paragraph I or Exhibit C-2. If Tenant fails to submit its plans and specifications within the 10-day period provided in paragraph 1, the Landlord may, at its option, in addition to all other remedies available for Tenant's default, have the sole right to cancel this Lease. Indulgences granted to Tenant shall not be construed to be a waiver of the provisions of this paragraph. Time is of the essence of this agreement. Tenant shall have access to change locks upon Landlord's receipt of two (2) sets of plans, contractor's insurance and Tenant's acceptance of space. Tenant will pay costs of lock change and must make appointment with Landlord. B. Landlord's Work LANDLORD HAS NO OBLIGATION TO PERFORM ANY WORK WITHIN THE PREMISES OR THE SHOPPING CENTER UNLESS STATED IN EXHIBIT "C-2". IF NO EXHIBIT "C-2" IS ATTACHED (AND SIGNED BY BOTH LANDLORD AND TENANT), TENANT AGREES TO ACCEPT THE PREMISES IN ITS CONDITION "AS IS" AND SHALL BE OBLIGATED TO PERFORM SUCH WORK AS IS NECESSARY TO RENDER THE PREMISES USEFUL FOR THE PURPOSES LEASED. C. Tenant's Work All work not specifically described as Landlord's obligation in Exhibit "C-2" shall be the obligation of Tenant and shall be performed in accordance with approved plans and specifications at the sole cost of Tenant. The following work shall be at the sole expense of the Tenant and shall be subject to the approval of the Landlord, unless otherwise expressly provided herein: 1. Furniture and Fixtures - all furniture, furnishings, trade fixtures and related parts, all of which shall be new unless otherwise approved by Landlord. 2. Fixture and Equipment Connections - electrical and mechanical connection of all merchandising, lighting, floor and wall fixtures or equipment and related parts, including kitchen and food service equipment and other equipment peculiar to Tenant's occupancy. 3. Outdoor seating plan if local ordinance allows. 4. Approved Fire Protection Devices - approved fire extinguishers or fire protection devices in size, type and quantity throughout the Premises as required by code and standards of governing insurance rating boards. 5. All Signs and Graphics - the design, installation and location of all signs, exit signs and emergency lighting. Landlord must approve all signs prior to any installation. Signage will be solely Tenant's responsibility. Landlord will not be responsible for compliance with city ordinances or liable for Tenant's contractor actions. o5/oa/07 6. Ceilings - all ceilings, including lighting coves and other special effects. Ceiling to include insulation no less than R 19 installed no lower than the storefront glass. Requests for sheetrock ceilings must be approved by Landlord. Sheetrock ceilings will be allowed when installing a thirty inch (30") opening access panel within Tenant space. 7. Show Window Backgrounds - all show window backgrounds, show windows, show window floors, show window ceilings and show window lighting installations. 8. Walls and Wall Finishes - all interior partition walls within the Premises and all finishes on walls, including placing the finishes and installing the insulation on and within the partitions erected by Landlord. 9. Doors - all doors and hardware within the Premises. Service doors to exterior are provided by Landlord. 10. Floor Coverings - all floor coverings and floor finishes. it. Interior Final Finishes - all interior painting, papering, paneling and decoration. 12. Plumbing - all plumbing, including connections to utility systems. 13. Electrical and Telephone Systems and Equipment - furnishing and installation of all interior distribution panels, lighting panels, power panels, conduits, outlet boxes, switches, outlets, wiring, lighting fixtures and lamping; furnishing and installation of conduit and outlets as required for Tenant's telephone service. 14. Tenant will be responsible for costs of installing a rear door unless a rear door already exists or is required by Code. 15. Exterior conduits for utility lines and boxes must be painted to match fascia of building. D. General. 1. Landlord, Tenant or utility company shall have the right, subject to Landlord's approval, to run utility lines, pipes, roof drainage pipes, conduit, wire or duct work, where necessary, through attic space, column space or other parts of the Premises, and to maintain same in a manner which does not interfere unnecessarily with Tenant's use thereof. 2. The Tenant shall prepare all its plans and perform all its work to comply with all governing statutes, ordinances, regulations, codes and insurance rating boards; take out all necessary permits and obtain certificates of occupancy for the work performed by Tenant - all subject to Landlord's approval. Tenant shall further pay all utility deposits and government impact fees. 3. The concrete floor will be designed to a support a uniformly distributed load. Should the Tenant desire a heavier loading, Tenant agrees to pay the cost of engineering and the cost of providing such heavier loading capacity. 4. All work done on the Premises by Tenant must be performed by licensed contractors approved by Landlord. Tenant's contractors shall be required to waive all lien rights against Landlord's interest in the Shopping Center. 5. Meters - All meters required for utility services and utility deposits shall be furnished and installed at Tenant's expense. os/08/o? sa 3t ?'l,?jy IN AUGUST 31, 2005 4-1 SILVER SPRING SQUARE SIGNAGE STANDARDS OWNER Regency Centers 150 Monument Road, suite 406 Bala Cynwyd, PA 19004 PH (610) 747-1200 FX (610) 664-1098 REGENCY CONTACT Marge Evers 150 Monument Road, suite 406 Bale Cynwyd, PA 19004 PH (610) 747-1200 FX (610) 664-1098 GOVERNING AGENCY Silver Spring Township 6475 Carlisle Pike Mechanicsburg, PA 17050 Planning & Zoning PH (717) 766-0178 TABLE OF CONTENTS 01 Cover Sheet 02 Directory 03 Anchor Tenant Specifications 04 Storefront Sign Specifications 05 Non-anchor sign Specifications 06 Design Guidelines 07 Prohibited Signage 08 Submittals 09 Fabrication Guidelines ?. THIS DOCUMENT IS OWNED BY, AND THE INFORMATION CONTAINED IN ITS PROPRIETARY TO REGENCY CENTERS, BY THE RECEIPT HEREOF THE HOLDER AGGRESS NOT TO USE THE INFORMATION, DISCLOSE IT TO ANY THIRD PARTY, NOR REPRODUCE THIS DOCUMENT WITHOUT THE PRIOR `? • WRITTEN CONSENT OF REGENCY CENTERS. HOLDER ALSO AGREES TO IMMEDIATELY RETURN THIS DOCUMENT UPON REQUEST OF REGENCY CENTERS. 2 of 10 ANCHOR TENANT StGNAGE (For one use containing more than 150 lineal feet of storefront with minimum 75,000 square feet Gross Leaseable Floor Area) Materials: A variety of wall sign treatments is encouraged. Signs may use any acceptable treatment as provided for in the Tenant Sign Criteria, except as restricted below. Copy: Tenant name / logo. Sign Area: The maximum allowable letter height is not to exceed sixty inches (60") as depicted below for anchor tenants. The maximum allowable sign area is not to exceed one and one half square feet (1.5 sf) per lineal foot of tenant store frontage up to a maximum of two hundred seventy five square feet (275 st). Each anchor tenant is allowed one sign per side facing the street, with a maximum of two (2) signs. Signs must maintain a twelve inch (12") buffer between architectural features (i.e. cornices, arches, and expansion joints). Requests for additional signs and / or square footage shall be submitted to the Landlord for approval, if approved, then to the Silver Spring Township for a variance. Colors: Custom logo type or colors with Owner approval. Lighting: Signs will be internally illuminated with neon, L.E.D. or fluorescent lamps; or externally illuminated by gooseneck lamps, compact spot lighting or equal as approved by Regency Centers. Exposed neon is prohibited. Maximum of 60" High Letters THIS DOCUMENT IS OWNED BY, AND THE INFORMATION CONTAINED IN ITS PROPRIETARY TO REGENCY CENTERS, BY THE RECEIPT HEREOF THE HOLDER AGGRESS NOT TO USE THE INFORMATION, DISCLOSE IT To ANY THIRD PARTY, NOR REPRODUCE THIS DOCUMENT WITHOUT THE PRIOR a-t WRITTEN CONSENT OF REGENCY CENTERS. HOLDER ALSO AGREES TO IMMEDIATELY RETURN THIS DOCUMENT UPON REQUEST OF REGENCY CENTERS. izj 3 of 10 w MINI ANCHOR TENANT SIGNAGE (20,000 through 75,000 square feet of Gross Leasable Floor Area) Materials: A variety of wall sign treatments is encouraged. Signs may use any acceptable treatment as provided for in the tenant sign criteria, except as restricted below Copy: Tenant name / logo. Sign Area: The maximum allowable letter height is not to exceed forty-eight inches (48") as depicted below for mini anchor tenants. The maximum allowable sign area is not to exceed one hundred fifty square feet (150 sf). Each anchor tenant is allowed one sign per side facing the street, with a maximum of two (2) signs. Signs must maintain a twelve inch (12") buffer between architectural features (i.e. cornices, arches, and expansion .joints). Requests for additional signs and / or square footage shall be submitted to the Landlord for approval, if approved, then to the Silver Spring Township for a variance. Iffrontage is not one hundred.fifty lineal feet (150 If) signage shall conform to criteria for Store Front Tenant. Maximum sign length not to exceed seventy-five percent (75%n) of storefront. Tenants with recognized logo graphics may use their business identity graphics. If a logo symbol is used on the shop tenant sign, the logo will be included in the calculation of overall signage square footage. Colors: Custom color logotype / or colors with owner approval. Lighting: Signs will be internally illuminated with neon, L.E.D. or fluorescent lamps; or externally illuminated with gooseneck lamps, compact spot lighting, or equal. Exposed neon is prohibited. THIS DOCUMENT IS OWNED BY, AND THE INFORMATION CONTAINED IN ITS PROPRIETARY To REGENCY CENTERS, BY THE RECEIPT HEREOF THE HOLDER AGGRESS NOT TO USE THE INFORMATION, DISCLOSE IT TO ANY THIRD PARTY, NOR REPRODUCE THIS DOCUMENT WITHOUT THE PRIOR WRITTEN CONSENT OF REGENCY CENTERS. HOLDER ALSO AGREES TO IMMEDIATELY RETURN THIS DOCUMENT UPON REQUEST OF REGENCY CENTERS. 4 of 10 Total Store Front -- Not to exceed 75% of storefront Maximum of 48" High Letters STORE FRONT TENANT SIGNAGE (For one use containing un to 150 lineal feet of storefront with less than 20.000 square feet of Gross Leasable Floor Areal Materials: A variety of wall sign treatments is encouraged. Signs may use any acceptable treatment as provided for in the tenant sign criteria, except as restricted below Copy: Tenant name / logo. Sign Area: The maximum allowable letter height is not to exceed twenty eight inches (28") for a single line. Maximum sign length not to exceed seventy-five percent (75%) of storefront. Tenants with recognized logo graphics may use their business identity graphics. If a logo symbol is used on the shop tenant sign, the logo will be included in the calculation of overall signage square footage. The maximum allowable sign area is not to exceed two square feet (2 sf) per lineal foot of tenant store frontage, up to a maximum of seventy five square feet (75 sf). A maximum of one (1) sign is allowed per tenant. Signs must maintain a six inch (6') buffer between architectural features (i.e. cornices and arches). Requests for additional signs and / or square footage shall be submitted to the landlord for approval, if approved, then to the Silver Spring Township for a variance. Colors: Custom color logotype / or colors with owner approval. Lighting: Signs will be internally illuminated with neon, L.E.D. or fluorescent lamps; or externally illuminated with gooseneck lamps, compact spot lighting, or equal. Exposed neon is prohibited. (_. "' THIS DOCUMENT IS OWNED BY, AND THE INFORMATION CONTAINED IN ITS PROPRIETARY TO REGENCY CENTERS, BY THE RECEIPT HEREOF THE HOLDER AGGRESS NOT TO USE THE INFORMATION, DISCLOSE IT TO ANY THIRD PARTY, NOR REPRODUCE THIS DOCUMENT WITHOUT THE PRIOR WRITTEN CONSEN-r OF REGENCY CENTERS. HOLDER ALSO AGREES To IMMEDIATELY RETURN THIS DOCUMENT UPON REQUEST OF REGENCY CENTERS. 5 of 10 V NON-ANCHOR SIGN (for principal free _standing_uses _sharing common ingress and egress to planned center) Materials: A variety of wall sign treatments is encouraged. Signs may use any acceptable treatment as provided for in the tenant sign criteria, except as restricted below Copy: Tenant name / logo. Sign Area: The maximum allowable letter height is not to exceed twenty eight inches (28"). Maximum sign length not to exceed seventy-five percent (75%r.) of storefront. Tenants with recognized logo graphics may use their business identity graphics. If a logo symbol is used on the shop tenant sign, the logo will be included in the calculation of overall signage square footage. The maximum allowable sign area is not to exceed seventy five square feet (75 sf), not exceeding 20 percent of the wall area to which sign is attached. A maximum of two (2) signs are allowed per tenant. One allowed per wall. Signs must maintain a six inch (6") buffer between architectural features (i.e. cornices and arches). Requests for additional signs and 1 or square footage shall be submitted to the landlord for approval, if approved, then to the Silver Spring Township for a variance. Colors: Custom color logotype / or colors with owner approval. Lighting: Signs will be internally illuminated with neon, L.E.D. or fluorescent lamps; or externally illuminated with gooseneck lamps, compact spot lighting, or equal. Exposed neon is prohibited. v. THIS DOCUMENT IS OWNED BY, AND THE INFORMATION CONTAINED IN ITS PROPRIETARY TO REGENCY CENTERS, BY THE RECEIPT HEREOFTHE HOLDER AGGRESS NOTTO USE THE INFORMATION, DISCLOSE IT TO ANY THIRD PARTY, NOR REPRODUCE THIS DOCUMENT WITHOUTTHE PRIOR F- WRITTEN CONSENT OF REGENCY CENTERS. HOLDER ALSO AGREES TO IMMEDIATELY RETURN THIS DOCUMENT UPON REQUEST OF REGENCY CENTERS. t` Ate.' r+? r- 6 of 10 DESIGN REOUB2EMENTS The purpose of establishing these design guidelines is to ensure that each tenant sign will contribute to the center's success. High quality signage which reflects the integrity of the architecture will be encouraged. Individual tenant signs should incorporate a diversity of sign styles, icons and materials to create "retail drama" for the restaurant, entertainment and retail visitors. A. MIXED MEDIA FORMS & EMBELLISHMENTS Encouraged sign treatments include: 1. Dimensional, geometric shapes or icon representing a tenant's product or service. 2. Sculpted wood, metal, or sign foam signs. 3. Painted polished, etched, patina or abraded metals. 4. Etched or sandblasted glass or acrylic. 5. Screens, grids or mesh. 6. Glazed ceramic tile pattern or mosaic designs. 7. Cut or fabricated steel. 8. Dimensional letter forms with seamless edges. 9. Opaque acrylic materials with matte finishes. 10. Faux stone effect finish. 11. Mixed media / 3-dimensional signs using icons, images, logos, etc. 12. Front or halo illuminated channel letters. 13. Halo illuminated letters, a minimum of 3" depth. 14. Dimensional, geometric shapes. 15. Sandblasted, textured, and / or burnished metal leaf faces dimensional letters pin mounted from fagade. 16. Signs mounted to hard canopies, eyebrows or other projecting architectural elements. For Example: a. Prismatic face letter forms with full strokes. b. Rounded face letterforms with radius faces and eased edges. c. Layered letterforms with face and liner. Letter face must be at least I" thick, and the liner must be a minimum of 1/2" thick. B. ILLUMINATION Tenant signage should incorporate one (1) or more of the following acceptable lighting methods: 1. Reverse / Halo channel neon. 2. Channel letters with neon. 3. Silhouette illumination. 4. Bud light sculptures or rope lighting. 5. Fiber optics. 6. Internal and / or external illumination. 7. Custom light fixtures and / or seamless opaque faces with "backed up" or "push-thru" letters. 8. L.E.D. All font lighting should be baffled and obscured in channels where possible. Any exposed fixtures, shades or other elements should be designed to contribute to the design of the storefront. The following are prohibited: 1. Exposed conduits and raceways. 2. Electrified neon attached to glass tubing surrounds or crossbars. 3. Front lighting fixtures that compete with storefront design. 4. Can signs and cabinet signs. SIGN COLORS AND FINISHES All tenant's colors must be approved by owner prior to fabrication. To assist achieving a harmonious blend of color throughout the center, the following guidelines shall be adhered to: I. Colors within each sign should be compatible. 2. Sign colors should be selected to provide sufficient contrast against building background colors and be compatible with them. 3. Sign colors should provide variety and excitement. Interior and open channel letters be painted dark, where against light backgrounds. D. TYPESTYLES The use of logos and distinctive typestyles is encouraged for all tenant signs. Tenants may adapt established typestyles, logos, and / or icons, which are used on similar locations operated by them within Pennsylvania and / or the U.S. These images must be architecturally compatible and approved by the owner. Type may be arranged in one (1) or two (2) lines of copy. Copy may consist of upper and / or lower case letters. E. SIZE AND QUANTITIES Sizes and quantities for tenant signs shall be outlines in his criteria for each type of sign. Notwithstanding the maximum square footage specified for copy area allowances, adequate amounts of visual open space shall be provided around wall signs, so that they appear balanced and in scale in relation to their backgrounds. THIS DOCUMENT IS OWNED BY, AND THE INFORMATION CONTAINED IN ITS PROPRIETARY To REGENCY CENTERS, BY THE RECEIPT HEREOF THE HOLDER AGGRESS NOT TO USE THE INFORMATION, DISCLOSE IT TO ANY THIRD PARTY WRITTEN CONSENT OF REGENCY CENTERS. HOLDER ALSO AGREES TO IMMEDIATELY RETURN THIS DOCUMENT UPON REQUEST OF REGENCY CENTERS. 7of10 NOR REPRODUCE THIS DOCUMENT WITHOUT THE PRIOR ?: j PROHIBITED SIGNS Only those sign types provided herein and specifically approved in writing by the owner will be allowed. The following signs are prohibited: 1. Outdoor advertising or advertising structures. 2. Freestanding signs, except as provided in this text. 3. Animated, audible or moving signs: a. Signs which move, swing, rotate and flash. 4. Vehicle signs - affixed or on trucks, automobiles, trailers and other vehicles which advertise, identify or provide direction to a use or activity not related to its rightful use. 5. Off premise signs (other than directional signs) installed for the purpose of advertising a project, event, person or subject not related to the premises upon which said sign is located. Such sign may be allowed upon owner's approval. 6. No billboard signs. 7. Open or exposed neon. 8. No cabinets or can signs. 9. No window signs (Note: box signs hanging in display windows are not allowed), except for hours of operation which is limited to a maximum of one inch (1") high letters. 10. Unadorned rectangular cabinets signs with translucent or opaque faces. 11. Temporary wall signs, pennants, banners, inflatable displays, or sandwich boards (A-frames). 12. Gold leaf treatments on windows, box signs, and exposed neon window displays without owner's written approval. (Note: approval is at owner's sole discretion.) Off-the-shelf signs are discouraged. 13. Exposed junction boxes, wires, plug in wires on window signs, transformers, lamps, tubing, conduits, raceways or neon crossovers of any type. 14. Signs using trim cap retainers that do not match the color of the logo returns. Pre-manufactured signs, such as franchise signs, which have not been modified to meet this criteria. 15. Exposed fasteners, unless decorative fasteners are essential to the sign design concept. 16. Simulated materials such as wood grained plastic laminates or wall covering. 17. Rooftop signs or signs projecting above roof lines or parapets. 18. Signs on mansard roofs or equipment screens 19. Exposed raceway, unless it forms a creative design element of the sign. 20. Sign company decals in full view (limited placement only). ,21. Letters with clearplex, that give the affect of exposed neon are prohibited. 22. No sign located within three hundred (300) feet of any traffic light shall be illuminated with red, green, or yellow lights or neon tubing. 23. Any sign, banner (except as a special event sign), pennant, balloon, valance, or advertising display constructed of cloth fabric, cardboard or other light material, intended to be display for a short period of time. THIS DOCUMENT IS OWNED BY, AND THE INFORMATION CONTAINED IN ITS PROPRIETARY To REGENCY CENTERS, BY THE RECEIPT HEREOF THE HOLDER AGGRESS NOT TO USE THE INFORMATION, DISCLOSE IT TO ANY THIRD PARTY, NOR REPRODUCE THIS DOCUMENT W ITHOUr THE PRIOR WRITTEN CONSENT OF REGENCY CENTERS. HOLDER ALSO AGREES TO IMMEDIATELY RETURN THIS DOCUMENT UPON REQUEST OF REGENCY CENTERS. 8 of 10 " c . C SUBMITTALS AND APPROVALS There is a formal process for the creation, review and approval of tenant signs at Silver Spring Square. All tenant's signage is subject to the owner's and the governing agent's written approval. Approval will be granted based on the following: 1. Design, fabrication, and method of installation of all signs shall conform to this signage program. 2. Proposed signage is in harmony with the adjacent signage conditions and conforms to this sign program. SUBMITTAL TO OWNER Tenant shall submit three (3) color copies of detailed sign shop drawings for wner approval prior to submittal or sign fabrication WITHIN 30 DAYS AFTER LEASE EXECUTION (email preferred). Sign drawings are prepared by a licensed sign contractor. All signs must conform to the requirements of the Silver Spring Township planning and building department. Approval of plans by owner shall not constitute a waiver from tenant requirements to comply with the sign program. Failure to correct any deviation with five (5) days of Landlords request will be corrected by Landlord at the tenant expense. Submittals shall include the following; 1. Storefront elevation - scaled elevation of the tenant's storefront depicting the proposed sign design and all the dimensions as they relate to the tenant's storefront. Shop Drawings - fully dimensional and scaled shop drawings specifying exact dimensions, copy layout, type styles, materials, colors, means of attachment, illumination, electrical specifications, and all other details of construction. Section drawing through letter and / or sign panel showing dimensioned projection of the face of the letter or sign panel with illumination. If the shop drawings are rejected, tenant must then resubmit revised plans until the owner's approval is obtained. Requests to implement designs that vary from the provisions of this sign program will be submitted to the owner for approval, and then submitted to Silver Spring Township for approval. The owner may approve signs that depart from SDeciftc Drovisions and constraints of this Droeram in order 1. Encourage exceptional design 2. Accommodate imaginative, unique, and tasteful signs, which capture the spirit and intent of this sign program to SUBMITTAL TO SILVER SPRING TOWNSHIP A full set of plans must be approved and stamped by the owner prior to permit application. Tenant or tenant's sign contractor must submit to Silver Spring Township, and will be responsible for applications and permits fees for the planning board and building departments. Tenant and his sign contractor will not be permitted to commence installation of exterior sign unless all of the following conditions have been met: 1. A stamped set of final drawings reflecting the owner's and the Silver Spring Township approval shall be on file at the owner's and Silver Spring office. 2. All sign contractors must be fully licensed, insured and approved by the landlord prior to sign installation. Landlord must receive the sign contractor's certificate of insurance prior to sign installation. 3. The owner must be notified forty-eight (48) hours in advance, prior to sign installation. C. Tenant's sign contractor shall install the required signage within forty-five (45) days after approval of shop drawings or as soon the fagade is ready for sign installation. If signage is not in place by that date, owner may order sign fabrication and installation on tenant's behalf and at the tenant's expense. D. The owner may, at the sole discretion and at the tenant's expense, correct, replace, or remove any sign that is installed without written approval and / or that is deemed unacceptable pertaining to this sign program. Tenant is responsible for sign maintenance. Failure to do so empowers Landlord to maintain at tenant's expense. E. If the tenant chooses to change his exterior sign at anytime during the term of his lease, the tenant must comply with requirements set forth herein and any future modifications, revisions of changes which have been made to the sign program for this center after the execution of his lease agreement. F. Tenant shall ultimately be responsible for the fulfillment of all requirements and specifications, including those of the owner, Silver Spring Township, UL, and the Uniform Electrical Code. TENANT'S RESPONSIBILTY Tenant shall be responsible for the following expenses relating to the signage of his store: 1. Design consultant fees (if applicable) 2. 100% of permitting costs and application fees 3. All costs relating to sign installation, removal and including the repair of any damage to the building 4. If tenant's sign goes dark, tenant must remove signs at owner's request 5. All roof penetrations must be repaired by owner's roofer at tenant's expense. 6. Damage to the existing building (i.e. fascia) must be repaired to its original state at the cost of the tenant. If sign is removed tenant shall repair fascia to new. THIS DOCUMENT IS OWNED BY, AND THE INFORMATION CONTAINED IN ITS PROPRIETARY To REGENCY CENTERS, BY THE RECEIPT HEREOF THE HOLDER AGGRESS NOT TO USE THE INFORMATION, DISCLOSE IT TO ANY THIRD PARTY, NOR REPRODUCE THIS DOCUMENT WITHOUT THE PRIOR W R17TEN CONSENT OF REGENCY CENTERS. HOLDER ALSO AGREES TO IMMEDIATELY RETURN THIS DOCUMENT UPON REQUEST OF REGENCY CENTERS. 9 of 10 f ?i Z V FABRICATION REQUIREMENTS The fabrication and installation of all signs shall be subject to the following restrictions: 1. All signs and related lighting components shall be fabricated and installed with UL approved components in compliance with all applicable building and electrical codes. 2. Sign manufacturer shall supply a UL label, if required by local authorities, in an inconspicuous location. In no case shall any manufacturer's label be visible from the street from normal viewing angles. 3. Sign permit stickers shall be affixed to the bottom edges of signs, and only that portion of the permit sticker that is legally required to be visible shall be exposed. 4. Signs shall be made of durable rust inhibited materials that are appropriate and complementary to the building. 5. All formed metal (i.e.: letterforms) shall be fabricated using weld construction. 6. All signs shall be fabricated and installed with no visible screws, seams, rivets, or fastenings devices. Finished surfaces shall be free from "oil canning" or warping. 7. Separate all ferrous and non-ferrous metals. Stainless steel fasteners shall be used to secure ferrous to non-ferrous metals. 8. Threaded rods or anchor bolts shall be used to mount sign letters that are spaced off from the wall or background. Mount consists of all thread post and spacer sleeves for consistency. Spacers painted to match building color. All bolts and mounting devices shall consist of porcelain finish iron, stainless steel, aluminum or carbon bearing steel with painted finish. No black iron will be permitted. Angle clips attached to letter sides will not be permitted. Mounting shall include PVC sleeve with blocking behind the parapet or wall. 9. Paint colors and finishes must be reviewed and approved by the owner. Color coatings will match exactly the specified colors on the approval plans. 10. Surfaces with color hues prone to fading (i.e.: pastels, fluorescent, intense reds, yellows, and purples) shall be coated with ultraviolet inhibiting clear coat in a matte, gloss or semi-gloss finish. 11. All sign finishes shall be free of dust, orange peel, drips, and runs. Finishes should have uniform coverage and be of the highest quality. 12. Neon tubing shall be 12-15mm EGL or equal. Neon transformers shall be 30MA and / or 60MA. Fluorescent lamps shall be single pin (slimline) with a minimum of 12" center to center lamp separation. All lighting must match the exact specifications of the approved shop drawings. 13. Surface brightness of all illuminated materials shall be consistent in all letters and components of the sign. Light leaks will not be permitted. LANDLORD TO PROVIDE CONDUIT FROM THE BACKSIDE OF THE SIGN BAND TO TENANT PANEL AND TIME CLOCK. LANDLORD TO PROVIDE J-BOX, CONDUIT AND TIMER. TENANT TO PROVIDE ACTUAL HARDWIRING SIGNAGE AND INSTALLATION. THIS DOCUMENT IS OWNED BY, AND THE INFORMATION CONTAINED IN ITS PROPRIETARY TO REGENCY CENTERS, BY THE RECEIPT HEREOF THE HOLDER AGGRESS NOT TO USE THE INFORMATION, DISCLOSE IT TO ANY THIRD PARTY, NOR REPRODUCE THIS DOCUMENT WITHOUT THE PRIOR WRITTEN CONSENT OF REGENCY CENTERS. HOLDER ALSO AGREES TO IMMEDIATELY RETURN THIS DOCUMENT UPON REQUEST OF REGENCY CENTERS. 10 of 10 EXHIBIT C-2 LANDLORD'S WORK Regency Centers Vanilla Shell November 21, 2005 This work is to be completed exclusively by the Landlord at the Landlord's expense, according to the Landlord's specifications. Any changes made to the Landlord's standard specifications initiated by the tenant will be at the expense of the tenant. Layout & Construction 1. Demising walls shall be either 3 5/8" or 6" metal studs, non-insulated, with 5/8" fire rated gypsum board to roof deck; taped, spackled and sanded. Back wall is unpainted block. 2. Roof system shall be a single ply ballasted membrane roof or built up roof, to be determined at the Landlords discretion. 3. Storefront shall be 1/4" thick plate glass in an aluminum frame with 1/4" tempered glass in doors and as otherwise required by local codes. Storefront shall extend from floor to a height of 10'. A single entry door will be provided. 4. Rear service door(s) shall be provided, providing that the space depth exceeds 50'. Service door(s) to be 20 gauge painted with building standard hardware to include lock set and storm chain. Standard Finishes 5. Floors: All floors to be a minimum of 4" thick reinforced concrete with a poly vapor barrier. Concrete floors to be smooth trowel finish, no paint, hardener or sealer. 6. Ceiling: Ceiling (10'- 0") ten feet in height, 2'-0" x 4'-0" non-combustible lay-in acoustical ceiling tiles. 7. Plumbing: Landlord to provide one (1) toilet room, or additional as required by code, ventilated, with one water closet , one lavatory. one drinking fountain, one mop sink and hot water heater to meet ADA and local codes. 8. Heating, _C_ Cooling, Ventilation: Landlord will provide a combination heatina and coolina unit(s complete with duct work, diffusers and thermostat. Cooling design shall be based on the minimum requirements set forth by the American Society of Heating and Air Conditioning Engineers (ASHRAE) and/or a minimum of one ton cooling capacity per 350 sauare feet of sales area 9. Fire Protection: Landlord will install a complete automatic sprinkler system (wet) for the demised Premises, as required by local governing codes. The design of such system and the number and location of sprinkler heads to be installed shall be in accordance with the Landlord base interior design Anv modifications to base design required by Tenants interior design or proposed use or occupancy shall be at Tenants sole cost and expense 10. Electrical Power: Power to be individually metered_ by the local utilitv companv. Landlord shall provide one 24 circuit. 200 amp panel Convenience outlets (120/208) will be provided on the side perimeter walls. two per side wall four total. 11. Lighting: Landlord will provide one (1) 3-lamp 2'-0" x 4'-0" recessed fluorescent fixture with acrylic lense per 100 square feet of sales area. Tenant to provide wiring to meet signage voltage requirements Connection and wiring for the sign by tenant Toilet room to receive a combination exhaust fan/light Exit signs and emergency lights will be provided per local code 12. Telephone: PVC conduit stubbed out at rear wall adiacent to electrical panel Tenant to provide all wiring, backboards, connections and equipment. 13. Tenant Signage: Landlord to provide conduit from the backside of the sign band to tenant panel and time clock. Landlord to provide J-Box, conduit and timer. Tenant to provide actual hardwiring, signage and installation. 14. Store Address Letters: Landlord to provide permanent specified uniform suite identifying number that will be attractive for the life of the proiect ITZ '.N .l, T EXHIBIT D ABSOLUTE UNCONDITIONAL GUARANTY AGREEMENT KNOW ALL MEN BY THESE PRESENCE: That, THIS Absolute Unconditional Guaranty Agreement (the "Guaranty") is executed and delivered this 14- day of 206R: by Jeff Roberts , Angela Roberts, individual. and Rebecca Rich d , jointly and severally (herein collectively, "Guarantor") in favor of Silver Spring Square II, LP, a Delaware limited partnership, ("Landlord"). RECITALS: ZPizza International, Inc. , a corporation organized and existing under the laws of the State of ("Tenant"), and Landlord are party to that certain Shopping Center Lease dated In order to induce Landlord to enter into the Agreement, Guarantor agreed to execute and deliver to Landlord this Guaranty. Guarantor acknowledges that Landlord would not have entered into the Agreement without the execution and delivery by Guarantor of this Guaranty. NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Guarantor, Guarantor hereby agrees in favor of Landlord (and Landlord's successors and assigns) as follows: Guarantor absolutely, unconditionally and irrevocably guarantees the prompt and complete payment and performance when due, whether by acceleration or otherwise, of all obligations, liabilities and covenants, whether now in existence or hereafter arising, of Tenant to Landlord, and arising under the Agreement, including without limitation all amounts due to the Landlord as rent or otherwise under the Agreement (the "Obligations"). The Guarantor hereby agrees to pay and/or perform punctually, upon written demand by the Landlord, each such Obligation which is not paid or performed as and when due and payable by the Tenant, in like manner as such amount is due from the Tenant. For purposes hereof, the Obligations shall be performed and/or due and payable when due and payable under the terms of the Agreement notwithstanding the fact that the collection or enforcement thereof as against the Tenant may be stayed or enjoined under Title 11 of the United States Code or similar applicable law. This Guaranty is one of payment and not of collection. The Guarantor's obligations under this Guaranty are absolute and unconditional and shall not be affected by the genuineness, validity, regularity or enforceability of the Obligations or the Agreement, or by any other circumstance relating to the Obligations or the Agreement which might otherwise constitute a legal or equitable discharge of or defense of a guarantor or surety. Guarantor hereby irrevocably waives any and all suretyship defenses, defenses that could be asserted by Tenant (except payment) and all other defenses that would otherwise be available to Guarantor. All payments by the Guarantor pursuant to this Guaranty shall be made without setoff. The Landlord shall not be obligated to file any claim relating to the Obligations in the event that the Tenant becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Landlord so to file shall not affect the Guarantor's obligations under this Guaranty. The Guarantor irrevocably waives any right to require the Landlord to pursue any other remedy in the Landlord's power whatsoever, whether against the Tenant or any other obligor principally or secondarily obligated with respect to the Obligations. The Guarantor irrevocably waives any defense arising by reason of any disability, bankruptcy, reorganization or similar proceeding involving the Tenant. In the event that any payment in respect of any Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable under this Guaranty in respect of such Obligations as if such payment had not been made. The Guarantor agrees that the Landlord may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of the Guarantor, extend the time of payment of, or performance of, or renew, any of the Obligations, and may also make any agreement with the Tenant or with any other party to or person liable on any of the Obligations, or interested therein, for the extension, renewal, payment, compromise, waiver, discharge or release thereof, in whole or in part, or for any amendment or modification of the terms thereof or of the Agreement or any other agreement between the Landlord and the Tenant or any such other party or person, without in any way impairing, releasing or affecting the liabilities of the Guarantor under this Guaranty. The Guarantor will not exercise any rights which it may acquire by way of subrogation until all of the Obligations to Landlord shall have been indefeasibly paid in full, or performed in its entirety. Any amount paid to the Guarantor in violation of the preceding sentence shall be held in trust for the benefit of the Landlord and shall forthwith be paid to the Landlord to be credited and applied to the Obligations, whether matured or unmatured. Guarantor hereby subordinates any and all liabilities and indebtedness to Guarantor to the prior indefeasible payment in full of the Obligations. I TI 2007 (the "Agreement"). This Guaranty shall remain in full force and effect and be binding upon the Guarantor, its successors and assigns until all of the Obligations have been satisfied in full and the Agreement shall have been terminated or fully performed. This Guaranty may not be modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by Landlord and Guarantor. This is a continuing Guaranty relating to all Obligations, including any arising during any holdover term or arising under transactions renewing or extending the term of the Agreement, changing the terms of any Obligations, or creating new or additional Obligations after prior Obligations have in whole or in part been satisfied, regardless of any lapse of time. If any of the present or future Obligations are guaranteed by persons, partnerships, corporations or other entities in addition to the Guarantor, the death, release or discharge, in whole or in part, or the bankruptcy, liquidation or dissolution of one or more of them shall not discharge or affect the liabilities of the Guarantor under this Guaranty. The obligations of the Guarantor hereunder shall be additional to, and not in substitution for, any security or other guarantee or indemnity at any time existing in respect of Tenant's obligations, liabilities and covenants under the Agreement. No failure on the part of the Landlord to exercise, and no delay in exercising, any right, remedy or power under this Guaranty shall operate as a waiver thereof, nor shall any single or partial exercise by the Landlord of any right, remedy or power under this Guaranty preclude any other or future exercise of any right, remedy or power under this Guaranty. Each and every right, remedy and power granted to the Landlord under this Guaranty or allowed it by law or by the Agreement or any other agreement shall be cumulative and not exclusive of any other, and may be exercised by the Landlord from time to time. The Guarantor hereby waives notice of acceptance of this Guaranty and notice of any obligation or liability to which it may apply, and waives presentment, demand for payment, protest, notice of dishonor or non-payment of any such obligation or liability, suit or the taking of other action by Landlord against, and all other notices whatsoever to, the Tenant, the Guarantor or others. Landlord may at any time and from time to time without notice to or consent of the Guarantor and without impairing or releasing the obligations of the Guarantor hereunder: (a) take or fail to take any action of any kind in respect of any security for any obligation, covenant or liability of the Tenant to Landlord, (b) exercise or refrain from exercising any rights against the Tenant or others, (c) compromise or subordinate any obligation or liability of the Tenant to Landlord including any security therefor, (d) consent to the assignment by Tenant of its interest in the Agreement, or (e) consent to any other matter or thing under or relating to the Agreement. Guarantor waives trial by jury in any action, proceeding or counterclaim, involving any matters whatsoever arising out of or in any way connected with the Guaranty. Guarantor agrees to reimburse Landlord for the costs and attorney's fees incurred by reason of Landlord having to enforce this Guaranty. Guarantor represents and warrants to Landlord that (a) the Agreement has been duly authorized, executed and delivered by Tenant and is a legal, valid and binding instrument enforceable against Tenant in accordance with its terms, and (b) this Guaranty has been duly authorized, executed and delivered by Guarantor and is a legal, valid and binding instrument enforceable against Guarantor in accordance with its terms. The Guarantor may not assign its rights nor delegate its obligations under this Guaranty, in whole or in part, without prior written consent of the Landlord, and any purported assignment or delegation absent such consent is void. This Guaranty shall remain in full force and effect notwithstanding (a) any assignment or transfer by Tenant of its interest in the Agreement (in which case this Guaranty shall apply, from and after such assignment or transfer, to all of the obligations, liabilities and covenants of the assignee or transferee under the Agreement), or (b) any assignment or transfer by Landlord of its interest in the Agreement (in which case Guarantor's obligations under this Guaranty shall inure to the benefit of Landlord's assignee or transferee), in each case irrespective of whether Guarantor has notice of or consents to any such assignment or transfer. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. GUARANTOR AND LANDLORD JOINTLY AND SEVERALLY AGREE TO THE EXCLUSIVE JURISDICTION OF COURTS LOCATED IN THE COMMONWEALTH OF PENNSYLVANIA, UNITED STATES OF AMERICA, OVER ANY DISPUTES ARISING OR RELATING TO THIS GUARANTY. ? os/oe/o?o? IN WITNESS WHEREOF, this Guaranty has been executed and delivered as of the date and year first above written. Signed, sealed and delivered in the presence of: Witness fitness erts pp Address: S.S. #: -- 191-56-9911 PIZO Witness Witness I4 . Witness Witness der ---_ C, Angela Roberts Q ,? Y3?4r P') Address: 11 S.S. #: 184-56-3229 PA- V70- 7,e-Rebecca Richmond' n ?t? W?G• `•• Address: LL S.S. #: 162-50-0627 Guarantor acknowledges its address and will notify Landlord of any changes thereto. os/oa/o?ea-F?eFe?s¢/s5,?e?e4{s4-/e?o?a: A`. r- I T E EXHIBIT E REQUIREMENTS AND RESTRICTIONS Tenant: 1. will not, without Landlord's consent, conduct or permit to be conducted any auction, fire, bankruptcy or going-out-of-business sales, or similar type sale, in connection with the Premises; provided, however, that this provision shall not restrict the absolute freedom of Tenant to determine its own selling prices nor shall it preclude the conduct of periodic seasonal, promotional or clearance sales; 2. will not use or permit the use of any apparatus for sound reproduction or transmission or of any musical instrument in such manner that the sounds so reproduced, transmitted or produced shall be audible beyond the interior of the Premises; will not utilize an advertising medium within the Shopping Center which can be seen, heard or experienced outside the Premises, including, but not limited to, flashing lights, searchlights, loudspeakers, phonographs, radio or television; will not display, paint or cause to be displayed, painted or placed, any handbills, bumper stickers or other advertising devises on any vehicle parked in the parking area of the Shopping Center; will not distribute, or cause to be distributed, in the Shopping Center any handbills or other advertising devices; and will not conduct or permit any activities that might constitute a nuisance; 3. will keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the confines of the Premises; will not cause or permit strong, unusual, offensive or objectionable noise, odors, fumes, dust or vapors to emanate or be dispelled from the Premises; will not bum trash or store or permit accumulations of any trash, garbage, rubbish or other refuse outside of the Premises except in compactors or other receptacles approved by Landlord; 4. will not load or permit the loading or unloading of merchandise, supplies or other property, nor ship, nor receive, outside the area and entrance designated therefor by Landlord from time to time; will not permit the parking or standing, outside of said area, of trucks, trailers or other vehicles or equipment engaged in such loading or unloading in a manner to interfere with the use of any Common Areas or any pedestrian or vehicular use and good shopping center practice; will use its best efforts to complete or cause to be completed all deliveries, loading, unloading and services to the Premises prior to 10:00 a.m. each day; 5. will not paint or decorate any part of the exterior of the Premises, or change the architectural treatment thereof, or install any visible protective devices such as burglar bars or security shutters or window tinting, without first obtaining Landlord's written approval; and will remove promptly upon order of Landlord any paint, decoration or protective device which has been applied to or installed upon the exterior of the Premises without Landlord's prior approval, or take such other action with reference thereto as Landlord may direct; 6. will keep the inside and outside of all glass in the doors and windows of the Premises clean; will not place or maintain any merchandise, vending machines or other articles in the vestibule or entry of the Premises, on the footwalks adjacent thereto or elsewhere on the exterior thereof; will maintain the Premises at its own expense in a clean, orderly and sanitary condition and free of insects, rodents, vermin and other pests; and will keep refuse in proper containers on the interior of the Premises until removed from the Premises; 7. will comply (at its sole cost and expense) with all laws, rules, regulations, orders and guidelines now or hereafter in force relating to or affecting the use, occupancy, alteration or improvement of the Premises, including parking requirements ("Laws") and will not use or permit the use of any portion of the Premises for any unlawful purpose or in violation of any recorded covenants, conditions and restrictions affecting the Shopping Center; 6. will not place, permit or maintain on the exterior walls or roof of the Premises any sign, advertising matter, decoration, lettering, insignia, emblems, trademark or descriptive material (herein called "Signs") and will not permit any Signs to remain or be placed on any window or door of the Premises unless the same have been approved in writing by Landlord; and will maintain any and all Signs as may be approved in good condition and repair at all times, Landlord reserving the right to do so at Tenant's expense if Tenant fails to do so after five (5) days' notice from Landlord; Tenant acknowledges that it will install its approved Signs within thirty (30) days from date of possession of the Premises; 9. will keep the display windows in the Premises electrically lighted and any and all electric signs lighted during all other periods that a majority of tenants are open for business in the Shopping Center; and 10. will not use the sidewalks adjacent to the Premises, or any other space outside of the Premises, for the sale or display of any merchandise or for other business, occupation or undertaking. EXHIBIT F TENANT'S IMPROVEMENTS In no event shall Tenant make or cause to be made any penetration through any roof, floor or exterior or corridor wall without the prior written consent of Landlord. Should Landlord consent to Tenant's penetration through the roof, Tenant shall use Landlord's roofing contractor to repair or re-flash Tenant's roofing penetrations. Tenant shall deliver to Landlord a certification letter from this roofing contractor stating that all roof repairs and penetrations have been made in compliance with the roof warranty. This certification is required in order for Landlord to release any Tenant Allowance monies. Tenant shall be responsible for any and all damages resulting from any alteration, addition or change Tenant makes, whether or not Landlord's consent therefor was obtained. Any and all alterations, additions and changes made to the Premises which are consented to by Landlord shall be made under the supervision of a licensed architect or licensed structural engineer and in accordance with plans and specifications approved in writing by the Landlord before the commencement of the work and all necessary governmental approvals and permits, which approvals and permits Tenant shall obtain at its sole expense. All contractors and subcontractors utilized by Tenant shall be subject to Landlord's prior written approval. All work with respect to any alterations, additions and changes must be done in a good and workmanlike manner and diligently prosecuted to completion to the end that the Premises shall at all times be a complete unit except during the period of the work. COMPLIANCE WITH LAWS. Any permitted changes, alterations and additions made by Tenant shall be performed strictly in accordance with applicable laws, rules, regulations, building codes and architectural review boards relating thereto including, without limitation, the provisions of Title III of the Americans with Disabilities Act of 1990. Tenant shall have the work performed (i) in such a manner so as not to obstruct the access to the Premises or to the premises of any other tenant or obstruct the Common Areas, (ii) so as not to interfere with the occupancy of any other tenant of the Shopping Center and (iii) at such times, in such manner and subject to such rules and regulations as Landlord may from time to time reasonably designate. Throughout the performance of Tenant's alterations, Tenant shall obtain, or cause its contractors to obtain, workers compensation insurance and commercial general liability insurance in form and substance satisfactory to Landlord and name Landlord as an additional insured thereunder. INSURANCE AND RECONSTRUCTION. In the event Tenant shall make any alterations, additions or changes to the Premises, none of such alterations, additions or changes need be insured by Landlord under such insurance as Landlord may carry upon the Landlord's Building, nor shall Landlord be required under any provisions of this Lease to reconstruct or reinstall any such alterations, additions or changes in the event of casualty loss, it being understood and agreed that all such alterations, additions or changes shall be insured by Tenant pursuant to Article 11 and reconstructed by Tenant (at Tenant's sole expense) in the event of a casualty loss pursuant to Article 12. 1 05/0e/0?04f10e 0404fasfaaeaf94fe-7o2-/?a r r+ u` ITI EXHIBIT G RESTRICTIONS SET FORTH IN OEA Tenant shall not violate any of the restrictions set forth in the OEA including without limitation the following: but not limited to financial institutions real estate stock brokerage and title companies, travel and open to the general public shall not be considered Retail Office or Business Office for the purpose of this limitation No use shall be permitted in the Shoppina Center which is inconsistent with the operation of a first-class retail shopping center. Without limiting the generality of the foregoing the following uses shall not be permitted: (A) Any use which emits an obnoxious odor, noise or sound which can be heard or smelled outside of construction, reconstruction or maintenance. (E) Any dumping disposing incineration or reduction of garbage: provided however, this prohibition shall not be applicable to garbage compactors located near the rear of any Building (F) Any fire sale bankruptcy sale (unless pursuant to a court order) or auction house operation. (G) Any central laundrydry, cleaning plant or Laundromat provided however, this prohibition shall not be applicable to nominal supportive facilities for on-site service oriented to pickup and delivery by the ultimate consumer as the same may be found in retail shopping centers in the metropolitan area where the Shopping Center is located. (H) Any automobile, truck, trailer or recreational vehicle sales, leasing, display or body shop repair operation. (I) Any bowling alley or skating rink. (J_). Any movie theater or live performance theater. (K) Any hotel, motel, short or long term residential use, including but not limited to: single family dwellings townhouses, condominiums, other multi-family units, and other forms of living quarters, sleeping apartments or lodging rooms. (L) Any veterinary hospital or animal raising or boarding facility: provided, however, this prohibition shall not be applicable to pet shoos. Notwithstanding the foregoing exception, any veterinary or boarding services provided in connection with the operation of a pet shop shall only be incidental to such operation: the boarding of pets as a separate customer service shall be prohibited: all kennels, runs and pens shall be located inside the Building: and the combined incidental veterinary and boarding facilities shall occupy no more than fifteen percent (15%) of the Floor Area of the pet shop. (M) Any mortuary or funeral home. (N) Any establishment selling or exhibiting "obscene" material. (O) Any establishment selling or exhibitina drug-related paraphernalia or which exhibits either liver of of the gross revenues of such business. readino rooms, places of instruction or other operations catednq primarily to students or trainees rather than to customers: provided, however, this prohibition shall not be applicable to on-site employee training by an Occupant incidental to the conduct of its business at the Shopping Center. (T) Any gambling facility or operation, including but not limited to: off-track or sports betting parlor: applicable to: (A) the storage of shopping carts on the Target Unit or Unit #2: (B) the installation of an "ATM" banking facilRv within an exterior wall of any Building; C 1.'( Uc J . :Rs T HE (C) the seasonal display and sale of bedding plants on the sidewalk in front of any Building located on the Target Unit on Unit #2; (D) the placement of bicycle racks and landscaping planters on the sidewalk in front of any Building; (E) the placement of spherical bollards (Target's brand) on the sidewalk in front of any Building on the Target Unit; (F) temporary Shopping Center promotions except that no promotional activities will be allowed in the Common Areas without prior written approval of the Approving Parties; calendar year and the duration of such use shall be subject to the following limitations: during the period commencina on October 15th and ending on December 27th - no limitation on the number of days of consecutive use; during the period commencing February 15th and ending on July 10th - not more than one hundred twenty-five (125) consecutive days of use; and, during any other period - not more than thirty (30) consecutive days of use. The following use and occupancy restrictions shall also be applicable: (A) No Restaurant shall be located there on within three hundred (300) feet of the Building Area located on the Target Unit. (B) No toy store exceedina five thousand (5,000) square feet of Floor Area shall be permitted. (C) No drug store exceeding ten thousand (10 000) square feet of Floor Area shall be permitted an no store of any size selling or off erina for sale any pharmaceutical products reouiring the services of a licensed pharmacist shall be permitted: provided the foregoing restriction shall not apply to any located on the Target Unit. the Building Area on the Target Unit shall be permitted, not shall any liquor store offering off-premises sale of alcoholic beverages exceeding 12,000 square feet of Floor Area be permitted. The names 'Target'. "Greatland", "SuperTarget" or any variation using the name "Target" shall not be used to identify the Shopping Center or any business or trade conducted on the Shopping Center. C'1^i?7•L ? , EXHIBIT I LANDLORD WAIVER AGREEMENT THIS AGREEMENT, dated this day of , 20 (hereinafter "Landlord"), for a `Borrower"), in favor of , a (hereinafter "Lender'). Recitals: by , a (hereinafter whose address is WHEREAS, Landlord is the landlord under a certain lease (as at any time amended or assigned) (the "Lease") dated between Landlord and Borrower, covering certain business premises located at commonly known as Shopping Center (the "Leased Premises"); and WHEREAS, Lender will be extending loans and other accommodations to Borrower, and, as a condition to extending such loans and other financial accommodations, Lender has required, among other things, that Borrower grant to Lender a security interest in, among other things, all personal property, trade fixtures and inventory of Borrower in the Leased Premises, as more particularly described on Exhibit "A" attached hereto ("Collateral"). NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid to Landlord and in order to induce Lender to extend financial accommodations to or for the benefit of Borrower, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord hereby agrees with Lender as follows: Landlord consents to Lender's security interest in all of the Collateral. Lender's security interests in the Collateral shall be superior to any interest which the Landlord may at any time have therein during the term of the above-described Lease. Landlord will not assert against any of the Collateral any statutory, common law, contractual or possessory lien, including, without limitation, any right or levy or distraint for rent, during the term of the Lease, all of which Landlord hereby subordinates in favor of Lender except that should the Lease terminate and the Collateral remain on the Leased Premises it shall be deemed abandoned property subject to the provisions of the laws of the state in which the Leased Premises are located, unless otherwise provided in paragraph 2 herein. 2. Landlord agrees that Lender may enter upon the Leased Premises during the term of the Lease, during normal business hours, to inspect or remove any of the Collateral therefrom, without charge. Lender shall repair any physical damage directly caused to the Leased Premises by such removal. Landlord will not hinder Lender's actions in enforcing its liens and remedies with respect to the Collateral during the term of the Lease. Landlord agrees that Lender will be permitted access to the Leased Premises during normal business hours for the purpose of inspecting the Collateral. Should Lender take possession of the Leased Premises with Landlord's consent in order to remove the Collateral after the termination of the Lease, it shall be responsible for the payment of rent due under the Lease, which rent shall be prorated on a per diem basis determined on a thirty (30) day month for such time. Lender shall not be deemed to have assumed or be liable for any unperformed or unpaid obligations of Borrower under the Lease, other than for the payment of rent described in the preceding sentence. Lender hereby agrees to indemnify and hold Landlord harmless from any and all claims, actions or suits arising from Lenders acts to recover possession of the Collateral. 3. This Agreement shall be governed by the internal laws of the state in which the Leased Premises are located and shall remain in full force and effect during the term of the Lease or until all obligations of Borrower to Lender have been paid and satisfied in full, whichever occurs first. 4. The provisions of this Agreement may not be modified or terminated orally, and shall be binding upon the successors, assigns and representatives of the Landlord, and upon any successor owner or transferee of the Leased Premises, and shall inure to the benefit of the Lender and its successors and assigns. SIGNATURE PAGE TO FOLLOW. ? osloe/o?aa{-?eJ-eaeefe6faze?e?-/s-?e?{?sFea L' written. IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date first above Witness for Lender Witness for Landlord Witness for Landlord Lender: a By: Printed Name Its: Landlord: a By: Printed Name: _ Its: IT AtoRNEW A0Z9ffNNT AND ASSUMI1I0I4AGRE MENT AND FIRST MODIFICATION TO LEASE AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST MODIFICATION TO LEASE AGREEMENT (the "Agreement'), is made this 16day of November, 2008 ("the Effective Date % by and between ZPizza International, Inc., an "S"corporation, d/b/a 'Vizza", ("'marl" ), Jeff Roberts, Angela Roberts and Rebecca Richmond, as individuals, jointly and severally, whose address is 11 9limited ke Road, Duncannon, Pennsylvania 17020 and (collectively "Guarantors"), BreTon, L L C a liability corporation, whose address is 6416 Carlisle Pike, Suite 1100, Mechanicsburg, Pennsylvania 17050 {"Assignee") and Silver Spring Square II, LP, a Delaware limited partnership ("Landlord"). WITNESSFTH: WHEREAS, Landlord and Tenant entered into a Shopping Center Lease dated May 17, 2007, demising to Tenant certain space (approximately 1,600 square feet) in the Silver Spring Shopping Center, the address of which is known as 6416 Carlisle Pike, Mechanicsburg, Pennsylvania (herein the "Lease"); and WHEREAS, Guarantors executed that certain Absolute Unconditional Guaranty Agreement dated May 21, 2007 guaranteeing the faithful performance and payment of the obligations of the Lease; and WHEREAS, the parties desire to modify certain terms as of the date hereof ("Effective Date"); and WHEREAS, under the terms of the Lease, Tenant is prohibited from assigning its interest therein without Landlord's consent which Landlord is willing to grant on the terns and conditions herein set forth, but not otherwise. NOW, THEREFORE, for valuable considerations, the receipt and sufficiency of which is acknowledged, the parties agree as follows: 1. The above Recitals are hereby confirmed as true and correct and are reaffirmed herein. 2. As of the December 1, 2008, the Minimum Annual rent set forth in 1:1(g) shall be deleted and replaced with the following: 12/1/08 -11/3I109 $4,133.33 $31.00 $49,600.00 12!1/09-11/31/2012 $4,666.67 $35.00 $58,000.00 12/1/2012-8/31/2017 $5,226.67 $39.20 $62,720,00 3. Representation: Tenant and Assignee warrant to Landlord that there has been and will not be any transfer of funds with regard to this transaction. 4. A •si ent; Tenant hereby assigns and sets over to Assignee all of Tenant's right, title, interest, and claim in the Lease, including that certain security deposit in the amount of $5,108.00 (the "Assignment"). JT4MA*19,0. REGENCY EXHIBIT -- CENTERS 4- _ 5. Notice Address. As of the date hereof, the address for any notice to be provided to the Tenant under the Lease shall be: 11 Blacksnake Road, Duncannon, PA 17020 6. Assumption: Assignee hereby accepts the Assignment and assumes and agrees to perform each and every one of the Tenant's obligations under the Lease which accrue or become due after the date hereof. Assignee shall not by this Agreement succeed to any liability which Tenant shall owe to Landlord arising prior to the execution of this Agreement, except as set forth in paragraph 11. 7. Landlord's Consent: Landlord hereby consents to the Assignment of the Lease to Assignee. Pursuant to Article 17.1 of the Lease, Tenant agrees to pay Landlord an assignment fee of $1,500.00 "immediately upon Tenant's execution of this Agreement. In consideration of Landlord agreeing to this Assignment, Amir Sabetian, Jessica Sabetian and Jean Claude Eenshuisti-a have executed a Guaranty in a form attached hereto as Exhibit A agreeing to faithfully perform and pay all obligations under the Lease. The option to extend the term of the Lease set forth in Article 29 shall remain in place notwithstanding this assignment. Any further assignment shall result in the option terminating. The Landlord agrees to provide Tenant and the Guarantors written notice of any default(s) by the Assignee under the assigned Lease. 8. Guarantor's Consent: By its execution of this Agreement, Guarantor hereby consents to the Assignment of the Lease to Assignee. 9. Anti=Terrorism and Money Laundering_RMIMentation and Indemnification. Assignee certifies that: (i) neither it nor its officers, directors or controlling owners is acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order, the United States Department of Justice, or the United States Treasury Department as a terrorist, "Specially Designated National or Blocked Person," or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control ("SDN"); (ii) neither it nor its officers, directors or controlling owners is engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation; and (iii) neither it nor its officers, directors or controlling owners is in violation of Presidential Executive Order 13224, the USA Patriot Act, the Bank Secrecy Act, the Money Laundering Control Act or any regulations promulgated pursuant thereto. Assignee hereby agrees to defend, indemnify, and hold harmless Landlord from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorneys fees and costs) arising from or related to any breach of the foregoing certification. Should Assignee, during the term of the Lease, be designated an SDN, Landlord may, at its sole option, terminate the Lease. 10. Nothing herein shall be deemed to amend any provision of the Lease or release Tenant or any Guarantor of the Lease from any liability presently existing under the Lease, nor shall Tenant or any Guarantor be released from any prospective liability under the Lease arising out of Assignee's default which occurs after this Agreement is executed. 11. Tenant shall be liable and responsible for payment of the rent and all other sums due and payable tinder the Lease and hereunder. Landlord's consent to this Agreement is subject to payment in full of the aforementioned sums. Assignee agrees to pay for any and all sums found to be due and owing in relation to an annual reconciliation by Landlord for the common area expenses, insurance costs, real estate taxes and utility costs. 111926 d ID.R9.06 REGENCY _2_ CL-:NTLRS 12. Tenant hereby acknowledges that the Lease as modified is in full force and effect and there are no violations or defaults under any of the provisions of the Lease on the part of Tenant. 13. In the event of conflict between the terms and conditions of this Assignment and Assumption Agreement and First Modification 'to Lease Agreement and the Lease, this Assignment and Assumption Agreement and First Modification. to Lease Agreement shall control. 14. This Assignment and Assumption Agreement and First Modification to Lease Agreement shall be effective only when it is signed by both Landlord and Tenant. Tenant's submission of a signed Assignment and Assumption Agreement and First Modification to lease Agreement for review by Landlord does not give Tenant any interest, right or option. SIGNATURE PAGE TO FOLLOW ?+oxa ve ?o.xoa? REGENCY _3_ CENTERS FN WITNESS WHEIMOF, the parties have caused these presents to be exeouted as or the day and year first above written. SIGNED, SEALED, AND DELIVT.MED IN THE PRESENCE OF: 'T'ENANT: ZPIZZA INTER ZONAL, INC., an S Corporation By: Witness for Tenant Witness for Tenant Its: Presiden, tMess fpr Ass g e t ror Assigner By: tcbccca L. Rich tonri its: ??t -_...-- ------ --_-.__ Tax 1. D. iF ZQ:$5pQ) Lo ASSIGNED: BRETON, L U', Limitc ility company , B y: Its: L;k 1112C 4 ICU 6.0p rttc:itric?' CEiN'I'1;l25 -4- Witness for Guarantor Witness for Guarantor Witness for Guarantor i itness for Guarantor_ Witness for Guarantor Witness for Guarantor Witness for Landlord GUARANTORS: Jeff Roberts, Angela Roberts & Rebecca Richmond 3 By: Its: President r RTS tEBECCA RICI MOND By: P1 , 'I'l its: Vice President LANDLORD: RR1P Operating L.P a Delaware Limited Partnership By: Regency Realty Group, Inc. a Florida corporation Its: en •al Partner f-, By: _ ! - Its: John Hricko Vice President I492ea io.29m REGENCY CENTERS EXHIBIT "A' ABSOLUTE UNCONDITIONAL GUARANTY AGREEMENT KNOW ALL MEN BY THESE PRESENCE: That, THIS Absolute Unconditional Guaranty Agreement (the "Guaranty") is executed and delivered this _ n day of November, 2008 by Amir Sabetlan, Jessica Sabetian and Jean Calude Eenshuistra, individuals, jointly and severally (herein collectively, "Guarantor(s)"), in favor of RRP -Operating LP, a Delaware limited partnership ("Landlord"). RECITALS: A. BreTon Corporation, a corporation organized and existing under the laws of the State of PA_ ('Tenant"), and Landlord are party to that certain Shopping Center Lease originally by and between Z-Pizza International, Inc., predecessor to Tenant and Landlord dated May 17, 2008, demising certain premises in the Silver Spring Shopping Center located in Mechanicsburg, Pennsylvania which lease was assigned to Tenant pursuant to an Assignment and Assumption Agreement of even date herewith (the "Agreement'). a. In order to induce Landlord to enter into the Assignment and Assumption Agreement of even date herewith, Guarantor agreed to execute and deliver to Landlord this Guaranty. C. Guarantor acknowledges that Landlord would not have entered into the Assignment and Assumption Agreement of even date herewith without the execution and delivery by Guarantor of this Guaranty. NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Guarantor, Guarantor hereby agrees in favor of Landlord (and Landlord's successors and assigns) as follows: 1. Guarantor absolutely, unconditionally and irrevocably guarantees the prompt and complete payment and performance when due, whether by acceleration or otherwise, of all obligations, liabilities and covenants, whether now in existence or hereafter arising, of Tenant to Landlord, and arising under the Agreement, including without limitation all amounts due to the Landlord as rent or otherwise under the Agreement (the "Obligations"). The Guarantor hereby agrees to pay and/or perform punctually, upon written demand by the Landlord, each such Obligation which is not paid or performed as and when due and payable by the Tenant, in like manner as such amount is due from the Tenant. For purposes hereof, the Obligations shall be performed and/or due and payable when due and payable under the terms of the Agreement notwithstanding the fact that the collection or enforcement thereof as against the Tenant may be stayed or enjoined under Title 11 of the United States Code or similar applicable law. This Guaranty is one of payment and not of collection. 94M V2 1020.00 REGENCY CENTERS -6- 2. The Guarantor's obligations under this Guaranty are absolute and unconditional and shall not be affected by the genuineness, validity, regularity or enforceability of the Obligations or the Agreement, or by any other circumstance relating to the Obligations or the Agreement which might otherwise constitute a legal or equitable discharge of or defense of a guarantor or surety. Guarantor hereby irrevocably waives any and all suretyship defenses, defenses that could be asserted by Tenant (except payment) and all other defenses that would otherwise be available to Guarantor. All payments by the Guarantor pursuant to this Guaranty shall be made without setoff. The Landlord shall not be obligated to file any claim relating to the Obligations in the event that the Tenant becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Landlord so to file shall not affect the Guarantor's obligations under this Guaranty. The Guarantor irrevocably waives any right to require the Landlord to pursue any other remedy in the Landlord's power whatsoever, whether against the Tenant or any other obligor principally or secondarily obligated with respect to the Obligations. The Guarantor irrevocably waives any defense arising by reason of any disability, bankruptcy, reorganization or similar proceeding involving the Tenant. In the event that any payment in respect of any Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable under this Guaranty in respect of such Obligations as if such payment had not been made. 3. The Guarantor agrees that the Landlord may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of the Guarantor, extend the time of payment of, or performance of, or renew, any of the Obligations, and may also make any agreement with the Tenant or with any other party to or person liable on any of the Obligations, or interested therein, for the extension, renewal, payment, compromise, waiver, discharge or release thereof, in whole or in part, or for any amendment or modification of the terms thereof or of the Agreement or any other agreement between the Landlord and the Tenant or any such other party or person, without in any way impairing, releasing or affecting the liabilities of the Guarantor under this Guaranty. a. The Guarantor will not exercise any rights which It may acquire by way of subrogation until all of the Obligations to Landlord shall have been indefeasibly paid in full, or performed in its entirety. Any amount paid to the Guarantor in violation of the preceding sentence shall be held in trust for the benefit of the Landlord and shall forthwith be.paid to the Landlord to be credited and applied to the Obligations, whether matured or unmatured. Guarantor hereby subordinates any and all liabilities and indebtedness to Guarantor to the prior indefeasible payment in full of the Obligations. 5. This Guaranty shall remain in full force and effect and be binding upon the Guarantor, its successors and assigns until all of the Obligations have been satisfied in full and the Agreement shall have been terminated or fully performed. This Guaranty may not be modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by Landlord and Guarantor. This is a continuing Guaranty relating to all Obligations, including any arising during any holdover term or arising under transactions renewing or extending the term of the Agreement, changing the terms of any Obligations, or creating new or additional Obligations after prior Obligations have in whole or in part been satisfied, regardless of any lapse of time, If any of the present or future Obligations are guaranteed by persons, partnerships, corporations or other entities in addition to the Guarantor, the death, release or discharge, in whole or in part, or the bankruptcy, liquidation or dissolution of one or more of them shall not discharge or affect the liabilities of the Guarantor under this Guaranty. The obligations of the Guarantor * hereunder shall be additional to, and not in substitution for, any security or other guarantee or indemnity at any time existing In respect of Tenant's obligations, liabilities and covenants under the Agreement. s. No failure on the part of the Landlord to exercise, and no delay in exercising, any right, remedy or power under this Guaranty shall operate as a waiver thereof, nor shall any single or partial exercise by the Landlord of any right, remedy or power under this Guaranty preclude 86828 V! 10.24.08 REGENCY _7_ CENTERS ? C. any other or future exercise of any right, remedy or power under this Guaranty. Each and every right, remedy and power granted to the Landlord under this Guaranty or allowed it by law or by the Agreement or any other agreement shall be cumulative and not exclusive of any other, and may be exercised by the Landlord from time to time. 7. The Guarantor hereby waives notice of acceptance of this Guaranty and notice of any obligation or liability to which it may apply, and waives presentment, demand for payment, protest, notice of dishonor or non-payment of any such obligation or liability, suit or the taking of other action by Landlord against, and all other notices whatsoever to, the Tenant, the Guarantor or others. s. Landlord may at any time and from time to time without notice to or consent of the Guarantor and without impairing or releasing the obligations of the Guarantor hereunder: (a) take or fail to take any action of any kind In respect of any security for any obligation, covenant or liability of the Tenant to Landlord, (b) exercise or refrain from exercising any rights against the Tenant or others, (c) compromise or subordinate any obligation or liability of the Tenant to Landlord including any security therefor, (d) consent to the assignment by Tenant of its interest in the Agreement, or (e) consent to any other matter or thing under or relating to the Agreement. Guarantor waives trial by jury in any action, proceeding or counterclaim, involving any matters whatsoever arising out of or in any way connected with the Guaranty. Guarantor agrees to reimburse Landlord for the costs and attorney's fees incurred by reason of Landlord having to enforce this Guaranty. s. Guarantor represents and warrants to Landlord that (a) the Agreement has been duly authorized, executed and delivered by Tenant and is a legal, valid and binding instrument enforceable against Tenant in accordance with its terms, and (b) this Guaranty has been duly authorized, executed and delivered by Guarantor and is a legal, valid and binding instrument enforceable against Guarantor in accordance with its terms. lo. The Guarantor may not assign its rights nor delegate its obligations under this Guaranty, in whole or In part, without prior written consent of the Landlord, and any purported assignment or delegation absent such consent is void. This Guaranty shall remain in full force and effect notwithstanding (a) any assignment or transfer by Tenant of its interest in the Agreement (in which case this Guaranty shall apply, from and after such assignment or transfer, to all of the obligations, liabilities and covenants of the assignee or transferee under the Agreement), or (b) any assignment or transfer by Landlord of its interest in the Agreement (in which case Guarantor's obligations under this Guaranty shall inure to the benefit of Landlord's assignee or transferee), in each case irrespective of whether Guarantor has notice of or consents to any such assignment or transfer. ii. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF PENNSYLVANIA WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. GUARANTOR AND LANDLORD JOINTLY AND SEVERALLY AGREE TO THE EXCLUSIVE JURISDICTION OF COURTS LOCATED IN THE STATE 0 PENNSYLVANIA, UNITED STATES OF AMERICA, OVER ANY DISPUTES ARISING OR RELATING TO THIS GUARANTY. 114926 V2 10.2948 REGENCY _g- CENTERS IN WITNESS WHEREOF, this Guaranty has been executed and delivered as of the date and year first above written. Signed, sealed and delivered in the presence of: W itne W itn Witness witnees- f Witne W s Witness GUARANTORS: I'fAmtr Sabetian Address: a or br fi ?? S.S. ^1)-(6c-) Address: '?Q ''c (/? ?J Z G'V S.S. # 7 3 7 - '? t ?; Guarantor acknowledges its address and will notify Landlord of any changes thereto. 9926 V210.29.08 REGENCY CEiN`i'ERS -9- Zpizza analysis -Silver Spring Square Zpizza Lease: Arrearage as of 6/6/2010 1 7/1/10 to 12/31/12 2 1/1/13 to 8/31/17 3 Arrearage and accelerated rent Months base sf base/mo CAM 30.00 35.00 1,600.00 4,666.67 460.00 56.00 39.20 1,600.00 5,226.67 460.00 R.E. Tax Insurance Total Monthly Rent 1 67,626.62 275.00 45.33 5,447.00 163,409.90 275.00 45.33 6,007.00 336,391.81 499,801.71 r • VERIFICATION The Undersigned having read the attached pleading verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that he/she has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the pleadings are that of counsel, verifier has relied upon counsel in taking this Verification. This Verification is made subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification of authorities. BY: WILLIAM MADWAY DATED: 1 I ty III SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff FILE--" Ll) ±i ?u FED' 25 ABM o, r* P it-: ? 1 N S Y L W 11A Jody S Smith Chief Deputy Richard W Stewart Solicitor Silver Spring Square II, LP Case Number vs. Jeff Roberts (et al.) 2011-1558 SHERIFF'S RETURN OF SERVICE 02/14/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Jeff Roberts, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Perry County, Pennsylvania to serve the within Complaint and Notice according to law. 02/14/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Angela Roberts, but was unable to locate her in his bailiwick. He therefore deputized the Sheriff of Perry County, Pennsylvania to serve the within Complaint and Notice according to law. 02/15/2011 02:47 PM - Perry County Return: And now February 15, 2011 at 1447 hours I, Carl E. Nace, Sheriff of Perry County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Angela Roberts by making known unto herself personally, at 11 Blacksnake Road, Duncannon, Pennsylvania 17020 its contents and at the same time handing to her personally the said true and correct copy of the same. 02/22/2011 02:47 PM - Perry County Return: And now February 15, 2011 at 1447 hours I, Carl E. Nace, Sheriff of Perry County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Jeff Roberts by making known unto Angela Roberts, Wife of defendant at 11 Blacksnake Road, Duncannon, Pennsylvania 17020 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $53.44 February 22, 2011 SO ANSWERS, ? RON R ANDERSON, SHERIFF . CCU."ySi:iFrhe;rff. i2,......,.?'( 6?.. IN THE COURT OF COMMON PLEAS OF Silver Spring THE 41st JUDICIAL DISTRICT OF PENNSYLVANIA, Square II, LP PERRY COUNTY BRANCH Versus Angela Roberts and Jeff Roberts No. 2011-1558 Cumberland Co. SHERIFF'S RETURN And now February 15 , 2011 : Served the within name Angela Roberts the defendant(s) named herin, personally at her place of residence in Watts Twp-11 Blacksnake Rd. Duncannon, PA Perry County, PA, on February 15, 2011 at 2:47 o'clock PM by handing to Angela Roberts, Def. copy(ies) of the within Complaint 1 true and attested and made known to her the contents thereof Sworn and subscribed to before me this 74- day of , o? v< /7 All -r A A Prothonotary COMMONWEALTH OF PENIMSYLVANIA NOTMIAL SEAL r : E LICKIWER ,10ary rl,k: iu Btoomf.ld 8oro. Pernf Goijnty My O? mn--, ion Expires aba 6, 2012 So answers Alamo D. Houck An .,,-?adae #8-3 Sheriff of Perry County Silver Spring Square II, LP Versus Angela Roberts and IN THE COURT OF COMMON PLEAS OF THE 41st JUDICIAL DISTRICT OF PENNSYLVANIA, PERRY COUNTY BRANCH Jeff Roberts No. 2011-1558 Cumberland Co. SHERIFF'S RETURN And now February 15 , 2011 : Served the within name Jeff Roberts the defendant(s) named herin, personally at his place of residence in Watts Twp-11 Blacksnake Rd. Duncannon, PA Perry County, PA, on February 15, 2011 at 2:47 o'clock PM by handing to Angela Roberts, Def. wife 1 true and attested copy(ies) of the within Complaint and made known to her the contents thereof Sworn and subscribed to before me this So answ 2oll day of s? Prothonotary Deput Sheriff of Perry County COMMONWEALTH OF PENMSYLVANIA k1j',,jR,GAFET r. FLICKINGER, 110ary Ixclb4c Roomfiseld Bolo. Perm County N!y _00r311---i.%' ion Eac?oires 16,2012 Alan D. Houck midge #8-3 CGA LAW FIRM By: Lawrence V. Young, Attorney I. D. # CGA Professional Center 135 N. George Street York, PA 17401 (717) 848-4900 r_ PROTHONOTARY Esquire 2011 FEB 28 AM 11: 20 Attorney for Defendant,i,OHBERLANO COUNTY Rebecca Richmond PENNSYLVANIA SILVER SPRING SQUARE II, L.P Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION NO. 11-1558 Civil Term vs. Jeff Roberts and Angela Roberts, h/w and Rebecca Richmond and Jessica Sabetian and Jean Claude Eenshuistra Defendants ACCEPTANCE OF SERVICE The undersigned, with due authorization of Defendant, acknowledges and accepts service of the Complaint on behalf of Defendant, Rebecca Richmond. CGA LAW FIRM BY: LAWRENCE V. Y041`4G, ENQUIRE Attorney for Defenda , Rebecca Richmond Date: - ( (o (;4-0 t 1 r FILED-OFFICE" Ca THE PROTHONOTARY 7011 R-8 tm11: 16 rj'MDERLAND COUNTY PEtI!NSYLVAI4!A SILVER SPRING SQUARE II, L.P., Plaintiff V. JEFF ROBERTS and ANGELA No. 11-1558 Civil Term ROBERTS, REBECCA RICHMOND, JESSICA SABETIAN, and JEAN CLAUDE EENSHUISTRA, Defendants CIVIL ACTION - LAW NOTICE TO PLEAD To: Silver Spring Square II, L.P., by and through its attorneys Denis M. Dunn, Esquire, Petrikin, Wellman, Damico, Brown & Petrosa, The William Penn Building, 109 Chesley Drive, Media, PA 19063 Rebecca Richmond, 22 Blacksnake Road, Duncannon, PA 17020 Jessica Sabetian, 450 Newport Center Drive, Newport Beach, CA 92660 Jean Claude Eenshuistra, 277 Woodcrest, Aliso Viejo, CA 92656 You are hereby notified to file a written response to the enclosed New Matter and Cross- Claim within twenty (20) days from service hereof or a judgment may be entered against you. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA WIX, WENGEF A WrIDNER Date: 3/7 f' By: Jeffrey C. ark, I.D. 89277 508 Nortcon Street P.O. Box 8 5 Harrisburg, PA 17108-0845 (717)234-4182 Attorneys for Defendants Jeff Roberts and Angela Roberts 1 SILVER SPRING SQUARE II, L.P., Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA V. JEFF ROBERTS and ANGELA ROBERTS, REBECCA RICHMOND, JESSICA SABETIAN, and JEAN CLAUDE EENSHUISTRA, Defendants : No. 11-1558 Civil Term CIVIL ACTION - LAW ANSWER WITH NEW MATTER AND CROSS-CLAIM AND NOW, comes Jeff Roberts and Angela Roberts, by and through their attorneys, Wix, Wenger & Weidner, and files this Answer with New Matter and Cross- Claim, stating as follows: 1. Admitted upon information and belief. 2. Admitted upon information and belief. 3. Admitted upon information and belief. 4. The guaranty and lease are writings. Plaintiff's Paragraph 4 is denied to the extent that it does not fully comport with the writings. 5. The guaranty and lease are writings. Plaintiffs Paragraph 5 is denied to the extent that it does not fully comport with the writings. 6. The assignment is a writing. Plaintiffs Paragraph 6 is denied to the extent that it does not fully comport with the writing. 7. The guaranty and lease are writings. Plaintiffs Paragraph 7 is denied to the extent that it does not fully comport with the writings. 2 8. Plaintiff's paragraph 8 is a conclusion of law to which no answer is required. Moreover, the lease and assignment are writings. Plaintiff's paragraph 8 is denied to the extent that it does not fully comport with the writings. 9. Admitted in part with clarification and denied in part. It is denied that Tenant vacated the property, but admitted that Tenant no longer maintains possession of the premises. Upon information and belief, pursuant to an agreement with Plaintiff, possession of the premises, including all assets and equipment, was turned over to the Plaintiff. Accordingly, Plaintiff has chosen its remedy - possession of the premises - and is not entitled to acceleration of the rent obligation. It is therefore denied that Plaintiff was entitled to accelerate the balance owed under the Lease. 10. Denied. It is specifically denied that the amount of $499,801.71 is owed to Plaintiff. 11. Denied. It is specifically denied that Plaintiff is entitled to attorneys' fees, has incurred the fees alleged, or is entitled to its estimated figure. Strict proof is demanded. 12. Denied. It is specifically denied that Plaintiff is entitled to recover the amount alleged. 13. Denied. It is specifically denied that Plaintiff is entitled to recover the amount alleged. WHEREFORE, Defendants respectfully request that this Honorable Court enter an order dismissing the Complaint and granting such other relief as it deems just and appropriate. 3 NEW MATTER 14. Plaintiff's action is barred in whole or in part by the doctrine of estoppel. 15. Despite the requirement in Paragraph 7 of the Assignment, Defendants were not provided written notice of any defaults by the assignees under the Lease until approximately one year after they occurred. 16. The failure to provide written notice, as required, prevented Defendants from taking action to protect themselves from the default of assignee. 17. Upon information and belief, upon breach by the assignee, BreTon, LLC, Plaintiff accepted relinquishment of possession of the premises, along with all equipment, machinery, fixtures, inventory and furniture located at the premises. 18. By virtue of Plaintiff's re-possession of the premises upon default, Plaintiff has elected its remedy and, under Pennsylvania law, is not entitled to accelerate the remaining rent due under the lease. 19. Defendants are not liable to pay the accelerated rent balance under the lease because Plaintiff has elected its remedy by re-possessing the premises. 20. Upon information and belief, Plaintiff has had the opportunity to lease the premises to interested prospective tenants, but has refused to do so. 21. Accordingly, Plaintiff has failed to make reasonable efforts to mitigate its damages and is not entitled to recover. WHEREFORE, Defendants respectfully request that this Honorable Court enter an order dismissing the Complaint and granting such other relief as it deems just and appropriate. 4 CROSS-CLAIM VS. JESSICA SABETIAN AND JEAN CLAUDE EENSHUISTRA 22. Defendants assert this cross-claim pursuant to Pa.R.C.P. 1031.1 against Defendants Jessica Sabetian and Jean Claude Eenshuistra. 23. If Plaintiff establishes that it suffered injuries and damages as alleged in its complaint (which allegations answering Defendants deny), then Defendants Sabetian and Eenshuistra are liable over to Defendants Roberts by way of contribution or indemnification for all such damages that they may be required to pay to Plaintiff. WHEREFORE, Defendants Jeff Roberts and Angela Roberts respectfully requests that this Honorable Court, if there is a verdict entered in favor of Plaintiff, enter judgment against Defendants Sabetian and Eenshuistra by way of indemnification and/or contribution for the amount recovered by Plaintiff, plus such other relief as the Court deems just and appropriate. Respectfully Submitted, WIX, WENGER & WEIDNER Date: 3/7/(( By: Jeffr'?. Wk, I.D. 89277 508 h Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717)234-4182 Attorneys for Defendants Jeff Roberts and Angela Roberts 5 VERIFICATION We, Jeff Roberts and Angela Roberts, Defendants in the foregoing Answer with New Matter and Cross-Claim, have read the foregoing and hereby affirm and verify that it is true and correct to the best of our personal knowledge, information and belief. We verify that all of the statements made in the foregoing Answer are true and correct and that false statements made therein may subject us to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date: 7 b'l By: 7eWobert Date: 3--(o-11 to Roberts 6 SILVER SPRING SQUARE II, L.P., Plaintiff V. JEFF ROBERTS and ANGELA ROBERTS, REBECCA RICHMOND, JESSICA SABETIAN, and JEAN CLAUDE EENSHUISTRA, Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA No. 11-1558 Civil Term CIVIL ACTION - LAW Certificate of Service I hereby certify that the foregoing Complaint was sent by first class mail, postage prepaid this day to the following: Denis M. Dunn, Esquire Petrikin, Wellman, Damico, Brown & Petrosa The William Penn Building 109 Chesley Drive Media, PA 19063 Attorneys for Plaintiff Rebecca Richmond 22 Blacksnake Road Duncannon, PA 17020 With a courtesy copy to: Rees Griffiths, Esquire Tabitha D. Phillips, Esquire CGA Law Firm 135 North George Street York, PA 17401 Jessica Sabetian 450 Newport Center Drive Newport Beach, CA 92660 7 Jean Claude Eenshuistra 277 Woodcrest Aliso Viejo, CA 92656 ix, Wenger &Xeidne Date: 51-q-) 1 9'aufa Cribben( Paralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 IN T11E COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA SILVER SPRING SQUAR? II, L.P., Plaintiff, V. No. 11-1558 Civil Term JEFF ROBERTS and ANGELA ROBERTS, et. aI , CIVIL ACTION - LAW Defendants. NOTICE TO PLEAD To: SILVER SPRING SQUARE 11, L.P. Jessica Sabetian c/o Dennis M. Dunn, Esquire 450 Newport Center Dr. The William Penn Building Newport Beach, CA 92660 109 Chesley Drive Media, PA 19063 JEFF AND ANGELA ROBERTS c/o Jeffrey C. Clark, Esquire Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Jean Claude Eenshuistra 277 Woodcrest Aliso Viejo, CA 92656 M M a? C) -s You are hereby notified to file a written response to Defendant, Rebecca c? %D 31- LZ F-5 Richmond's New Matter and Cross Claim within twenty (20) days from service hereof or a judgment may be entered against you. CGA LAW FIRM Date: March 7, 2011 -a CD Tabitha D. Phillips, Esquire PA 309248 135 North George Street York, PA 17401 (717) 848-4900 (717) 843-9039 (f) tphillips@cgalaw.com Counsel for Rebecca Richmond (00456817/1} IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA SILVER SPRING SQUARE II, L.P., Plaintiff, V. JEFF ROBERTS and ANGELA ROBERTS, REBECCA RICHMOND, JESSICA SABETIAN, and JEAN CLAUDE EENSHUISTRA Defendants. No. 11-1558 Civil Term CIVIL ACTION - LAW DEFENDAN REBECCA RICHMOND'S ANSWER WITH N W MATTER AND CROSS CLAIM AND NOW, comes Defendant, Rebecca Richmond, by and through her counsel, CGA Law Firm, and files the within Answer with New Matter and Cross Claim, and in support thereof avers as follows: 1. Admitted upon information and belief. 2. Admitted upon' information and belief. 3. Admitted upon information and belief. 4. Denied. The alliegations set forth in this paragraph are characterizations of a written document, the terms of which speak for themselves. As such, the allegations are denied. 5. Denied. Paragraph 5 is a conclusion of law to which no response is required pursuant to the Penns lvania Rules of Civil Procedure. {00455737/1) 6. Admitted in part and denied in part. It is admitted upon information and belief that Tenant did assign the Lease for the Property to BreTon, LLC. To the extent that the allegations set forth in this paragraph are characterizations of a written document, they are specifically denied, as the terms speak for themselves. 7. Denied. Paragraph 7 is a conclusion of law to which no response is required. To the extent that a response is required, the allegations set forth in this paragraph are characterizations of a written document, the terms of which speak for themselves. As such, the allegations are denied. 8. Denied. Paragraph 8 is a conclusion of law to which no response is required. 9. Denied. Paragraph 9 is a conclusion of law to which no response is required. To the extent that a response is required, the allegations set forth in this paragraph are characterizations of a written document, the terms of which speak for themselves. As such, the allegations are denied. 10. Denied. Paragraph 10 is a conclusion of law to which no response is required. By way of further response, it is specifically denied that Defendant Richmond owes Plaintiff the sum of $49,807.71. 11. Denied. Paragraph 11 is a conclusion of law to which no response is required. To the extent that a response is required, it is specifically denied that Plaintiff is entitled to attorneys' fees and hat Plaintiff has incurred the fees alleged. Strict proof is demanded at trial. (00455737/1) 12. Denied. Paragraph 12 is a conclusion of law to which no response is required. 13. Denied. Paragraph 13 is a conclusion of law to which no response is required. By way of further response, it is specifically denied that Defendant Richmond owes Plaintiff damages in the !sum of $508.332.71. WHEREFORE, Defdndant, Rebecca Richmond, respectfully requests that this Honorable Court dismiss Plaintiff's Complaint in addition to granting such other relief as it deems just and proper. NEW MATTER 14. The Complaint fails to state a cause of action upon which relief can be granted. 15. Plaintiff fails to state a cause of action entitling it to recover against Defendant, Rebecca Richmond. 16. The Complaintlis barred in whole or in part by the doctrine of estoppel. IT Plaintiff's clainhs are precluded against Defendant Richmond, because the execution of the Guaranty Agreement was not an arms length transaction and was the result of undue influence. 18. Plaintiff insisted that it would not execute the Lease Agreement without Defendant Richmond's signature on the Guaranty Agreement. 19. Plaintiff knew that Defendant Richmond shared a close familial relationship with Defendants J ff Roberts and Angela Roberts. (00455737/1) 20. Knowing that ]befendant Richmond would not turn down her children's plea for help, Plaintiff intentionally utilized Jeff Roberts and Angela Roberts to obtain Defendant Richmond's signature on the Guaranty Agreement. 21. Defendant Richmond signed the Guaranty Agreement without reading it or understanding its import be,Cause of her relationship with Defendants Jeff Roberts and Angela Roberts. 22. Plaintiff's claim for recovery must be denied as any other result would be unconscionable. 23. Plaintiff's claims are barred in whole or in part because it knowingly made material misrepresentations 411, fact in order to induce Defendant Richmond to re-execute the Guaranty Agreement when the Assignment was executed. 24. Plaintiff threatened to sabotage the Assignment if Defendant Richmond refused to re-execute the Guaranty Agreement. 25. Plaintiff's misrepresented to Defendant Richmond that if she re-executed the Guaranty Agreement, she Would be released at a subsequent date. 26. Plaintiff's claims are barred because it unduly influenced and induced Defendant Richmond to re-ex?cute the Guaranty Agreement. 27. Plaintiff's claim must be denied for failure to join ZPizza International, Inc. and BreTon, LLC, which are indispensible parties to this litigation. 28. Plaintiff's Complaint seeks remedies disallowed by Pennsylvania law. (00455737/1) 29. Plaintiff accep?ed relinquishment of possession by BreTon, LLC and currently is in possession of the Property, including all fixtures, equipment, furniture and inventory therein. 30. Plaintiff sought possession in order to re-let he Property or so it represented in order to obtain possession 31. However, afters obtaining possession, Plaintiff failed to re let the Property even though prospective tenants have sought to lease the Property. 32. Plaintiff created an affirmative duty to mitigate damages under the Lease when it accepted repossession of the Property. 33. Plaintiff intentionally failed to mitigate damages by failing to lease the Property to bona fide prospective tenants. 34. Plaintiff's claims are barred by its failure to mitigate damages. 35. Under these citumstances, Plaintiff's claim for acceleration of the rent is barred because it is a penalty 4nd is unconscionable under Pennsylvania law. 36. Pennsylvania lbw requires a commercial lessor to elect between repossession or acceleration of the rent as its remedy. 37. Plaintiff elected its remedy by accepting repossession of the Property and is therefore estopped from see) ing acceleration of the rent. 38. Plaintiff s clai s are barred because recovery of both possession and acceleration of the rent would result in unjust enrichment. i (00455737/1) WHEREFORE, Defendant, Rebecca Richmond, respectfully requests that this Honorable Court dismiss Plaintiff's Complaint in addition to granting such other relief as it deems just and proper. CROSS CC FOR INDEMNITY AGAINST JEFF R BERTS AND ANGELA ROBERTS 39. Jeff Roberts and Angela Roberts induced Defendant Richmond to sign the Guaranty Agreement as a result of their close, confidential familial relationship. 40. To the extent that Defendant Richmond is found liable on Plaintiff's cause of action, Defendants Jeff Roberts and Angela Roberts are liable over to Defendant Richmond, as any such liability can only be a product of undue influence and abuse of confidence created by the familial relationship. WHEREFORE, to tho extent any judgment is entered against Defendant Richmond, Defendant, Rebecca Richmond, respectfully requests that the Court enter a judgment requiring Jeff Roberis and Angela Roberts to indemnify Defendant Richmond. A 41. Jessica Sabet4 and Jean Claude Eenshuistra are the parties primarily liable for the Assignment of the Lease. 42. Jessica Sabeti and Jean Claude Eenshuistra knowingly and willingly executed a Guaranty Agreement simultaneously with the Assignment. (00455737/1) 43. To the extent (that Defendant Richmond is found liable on Plaintiff's cause of action, Defendants Jessica Sabetian and Jean Claude Eenshuistra are liable over to Defendant Richmond, as any such liability can only be a product of their errors, omissions or negligence in tho execution of their duties. WHEREFORE, to the extent any judgment is entered against Defendant Richmond, Defendant, Rebecca Richmond, respectfully requests that the Court enter a judgment requiring Jessica Sabetian and Jean Claude Eenshuistra to indemnify Defendant Richmond. Respectfully Submitted, CGA LAW FIRM Date: March 7, 2011 By: Rees riffiths, Esquire P S p. Ct. # 21896 Ta ' a D. Phillips, Esquire PA Sup. Ct. # 309248 135 N. George Street York, PA 17401 P: 717-848-4900 F: 717-843-9039 Counsel for Rebecca Richmond (00455737/1) FROM : SUSQUEHANNA TRADING POST PHONE NO. : 7178344395 Mar. 05 2011 09:33PM P1 1, Rebecca Ric?mond, have read the foregoing Answer with New Matter and Cross Claims and verify tat the statements contained herein are true and correct to the best of my knowledge, int oration and belief. I understand that false statements made therein are made subject to the paWti% of IS Pa. C.S.A § 4904 relating to unswom falsification to authorities. Date: ??'l l1 I IU Rebecca Richmond coca MM) TE OF I hereby certify that o this 7`" day of March, 2011, I caused to be served on the persons listed below, by first lass mail postage prepaid, the foregoing Answer with New Matter and Cross Claims: Denis M. Dunn, Esquire Petrikin, Wellman, Damico, Brown & Petrosa The William Penn Building 109 Chesley Drive Media, PA 19063 Attorneys for Plaintiff Jeffrey C. Clark, Esquire Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Attorne?w for Jeff Roberts and Angela Roberts Jessica Sabetian 450 Newport Center Dr. Newport Beach, CA 92660 Jean Claude Eenshuistra 277 Woodcrest Aliso Viejo, CA 92656 Kat Teen Moyer, Paralegal T (00455737/1) CGA Law Firm Tabitha D. Phillips (PA #309248) 135 North George St. York, PA 17403 717-848-4900 .FILED-OFFICE OF THE PROTHONOT;"kRY 2011 MAR 28 PM 12: 49 CU PENNSYLVA A TY 717-843-9039 fax tphillipsOggalaw.com IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA SILVER SPRING SQUARE II, L.P., Plaintiff, V. JEFF ROBERTS and ANGELA ROBERTS, et. al., Defendants. No. 11-1558 Civil Term CIVIL ACTION - LAW PRAECIPE TO SUBSTITUTE VERIFICATON TO THE PROTHONOTARY: Please substitute the attached Verification with the one filed of record with Defendant Rebecca Richmond's Answer with New Matter and Cross Claims on March 9, 2011. CGA / FIRM L II// '? Tai a D. Phi i Attorneys for Re ecca Richmond {00463129/1) VERIFICATION I, Rebecca Richmond, have read the foregoing Answer with New Matter and Cross Claims and verify that the statements contained herein are true and correct to the best of my knowledge, information and belief. I understand that false statements made therein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Date: lu Rebecca Richmond (00455737/1) CERTIFICATE OF SERVICE I hereby certify that on this 25th day of March eon, a true and correct copy of the foregoing praecipe to substitute verification has been served via first-class mail, postage prepaid, upon the following: Denis M. Dunn, Esquire Petrikin, Wellman, Damico, Brown & Petrosa The William Penn Building io9 Chesley Drive Media, PA 19o63 Attorneys for Plaintiff` Jeffrey C. Clark, Esquire Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 171o8-o845 Attorneys for Jeff `Roberts and Angela Roberts Jessica Sabetian 45o Newport Center Dr. Newport Beach, CA 92660 Jean Claude Eenshuistra 277 Woodcrest Aliso Viejo, CA 92656 */? ) l Kat Teen Moyer, araleg for Tabitha D. Phillips (00463129/1) PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: Denis M. Dunn, Esquire Attorney I.D. #34583 The William Penn Building 109 Chesley Drive Media, PA 19063 (610) 565-2670 'F ?OTHONOTAR'y u1 I jl- 29 AM 10', 31 Attorney f SUP AND CO A TY PENNSYLVANI SILVER SPRING SQUARE II, L.P. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff CIVIL ACTION NO. 11-1558 Civil Term vs. Jeff Roberts and Angela Roberts, h/w Rebecca Richmond Jessica Sabetian and Jean Claude Eenshuistra Defendants RETURN AND AFFIDAVIT OF SERVICE OF COMPLAINT ON JEAN CLAUDE EENSHUISTRA TO THE PROTHONOTARY: Pursuant to the attached Return of Service Affidavit and Certificate of Due Diligence, please note on the docket that Defendant Jean Claude Eenshuistra was served with the re-instated Complaint in the above on June 8, 2011 at his residence at 277 Woodcrest, Aliso Viejo, California by handing the Complaint to his wife, an adult member of his family with whom he resides. DENIS M. DUNN, ESQUIRE Attorney for Plaintiff RETURN OF SERVICE Commonwealth of Pennsylvania County of Cumberland Court Case Number: 11-1558 CIVIL TERM Plaintiff: SILVER SPRING SQUARE 11, L.P. vs. Defendant: JEAN CLAUDE EENSHUISTRA, ET AL For: Denis Dunn PETRIKIN, WELLMAN, DAMICO, BROWN $ PETROSE 109 Chelsey Drive Media, PA 19063 Received by WS Process Servers Inc on the 26th day of May, 2011 at 3:36 pm to be served on Mrs. Jean Claude EEnshuistra, 277 WOODCREST, ALISO VIEJO, CA 92656. 1, Walter E. Stewart, do hereby affirm that on the 8th day of June, 2011 at 9:39 pm, SUBSTITUTE served by delivering a true copy of the NOTICE; N COMPLAINT FOR MONEY JUDGMENT; EXHIBITS A, B, C with the date and hour of service endorsed thereon by me, to: Uknown Uknown as Wife Of Jean C. Eenshuistra at the address of: 277 Woodcrest, Aliso Viejo, CA 92656, the within named person's usual place of Abode, who resides therein, who is fifteen (15) years of age or older and informed said person of the contents therein, in compliance with state statutes. Marital Status: Based upon inquiry of party served, Defendant is married. I certify that I am over the age of 18, have no interest in the above action, and am a Certified Process Server, in good standing, in the State of California. Walter E. Stewart PSC 2445 WS Process Servers Inc 31726 Rancho Viejo Road #121 San Juan Capistrano, CA 92675 (949) 489-7758 Our Job Serial Number: 2011000179 Service Fee: $115.00 Copyright 0 1992-2009 Database Services, Inc. - Process Servers Toolbox V6.3x CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Calif n?iiaa County of r Vt On 2o l before me, personally appeared Ago'l DEBBIE MADRIGAL C?ission # 1843007 Notary Public - California Riverside County Comm. Ex es A Pr 2, 2013 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and fficial Place Notary Seal Above Signature f/ Signature f Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relym on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Title or Type of Document: ?F (.)O t?? ff C {?? Document Date: 1 Number of Pages Signer(s) Other Tin Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Individual C' Corporate Officer - Title(s): _ ? Partner - ? Limited ? General 1-1 Attorney in Fact - _I Trustee 7?7 C_-' Guardian or Conservator Other: Signer Is Representing: Signer's Name: ? Individual ? Corporate Officer - Title(s): ? Partner - ? Limited ? General ? Attorney in Fact - • ? Trustee Top of thumb here ? Guardian or Conservator ? Other: Signer Is Representing: 4c. ©2007 National Notary Association- 9350 De Soto Ave., P.O. Box 2402 -Chatsworth, CA 91313-2402- www.NationalNotaryorg Item #5907 Reorder: Call Toll-Free 1-800-876-6827 2 u 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA The William Penn Building 109 Chesley Drive Media, PA. 19063 (610) 565-2670 Attorney for: Silver spring square II LP SUPERIOR COURT OF THE STATE OF CALIFORNIA OF THE COUNTY OF LOS ANGELES Plaintiff, SILVER SPRING SQUARE II, L.P. V Defendants Jeff Roberts And Angela Roberts, h/w et al CERTIFICATE OF DUE DILIGENCE I certify that I am, and was on the dates herein mentioned, over the age of 18 years and not a party to the action. After due and diligent effort, I have been unable to effect personal service on the within-named defendant: Jean Claude Eenshuistra Due to the following reasons: Residence Address - Date & Time Reason for Non Service 277 Woodcrest 5/29/2011 at 4 PM No answer at door Aliso Viejo CA. 92656 277 Woodcrest 5/31/2011 Lights inside saw shadow Aliso Viejo, CA. 92656 Nobody answered door 277 Woodcrest 6/01/2011 Aliso Viejo, CA 92956 No Answered 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 277 Woodcrest 6/07/2011 No lights at residence Aliso Viejo, CA. 92656 No answer 277 Woodcrest 6/08/2011 Substitute served Aliso Viejo, CA. 92656 Jean C Eenshuistra's Wife, She stated she was Jean's wife and he was not Home, she would give hirr The subpoena. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: June 9, 2011 ?J, a ..(/fir t/,? Walter E. Stewart CERTIFICATE OF DUE DELIGENCE 2 CERTIFICATE OF SERVICE I, Denis M. Dunn, Esquire, hereby certify that a true and correct copy of the above has been served upon the following persons via first class mail on the date noted below: Rees Griffiths, Esquire CGA Law Firm 135 North George Street York, PA 17401 Attorney for Defendant, Rebecca Richmond Jeffrey C. Clark, Esquire Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Attorney for Defendants, Jeff Roberts and Angela Roberts Thomas S. Gruenbeck, Esquire Gruenbeck Vogeler 9110 Irvine Center Drive Irvine, CA 92618 Attorney for Defendant, Jessica Sabetian Jean Claude Eenshuistra 277 Woodcrest Aliso Viejo, CA 92656 DATED: -? PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA DENIS M. DUNN, ESQ IRE Attorney for Plaintiff . 't l ?-1010TAi PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA 2012 AR 22 PE, 2: 69 By: Denis M. Dunn, Esquire Attorney I.D. #34583 AYbA%WfA tTY The William Penn Building 109 Chesley Drive Media, PA 19063 (610) 565-2670 SILVER SPRING SQUARE II, L.P. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff CIVIL ACTION NO. 11-1558 Civil Term vs. Jeff Roberts and Angela Roberts, h/w, Rebecca Richmond, Jessica Sabetian and Jean Claude Eenshuistra Defendants PRAECIPE TO DISMISS AS TO DEFENDANTS JEFF ROBERTS AND ANGELA ROBERTS ONLY TO THE PROTHONOTARY: Please mark the above-captioned action discontinued with prejudice as to Defendants Jeff Roberts and Angela Roberts only. PETRIKIN, WELLM MICO, BROWW"ETR SA By: DENIS M. DUNN, ESQUIRE Attorney for Plaintiff We hereby Consent to the above discontinuance: Jessica Sabetian PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: Denis M. Dunn, Esquire Attorney I. D. #34563 Attorney for Plaintiff The William Penn Building 109 Chesley Drive Media, PA 19063 (810) 565.2870 SILVER SPRING SQUARE II, L.P. : IN THE COURT OF COMMON PLEAS OF CUMBERLA14D COUNTY, PA Plaintiff CIYIL ACTION NO. 11-1558 Civil Term vs. Jeff Roberts and Angela Roberts, h/w, Rebecca Richmond, Jessica Sabetian and Jean Claude Eenshuistra Defendants PRAECIPE TO DISMISS AS TO DEFENDANTS JEFF ROBERTS AND ANGELA ROBERT ONLY TO THE PROTHONOTARY: Please mark the above-captioned action discontinued with prejudice as to Defendants Jeff Roberts and Angela Roberts only. PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: --- - - DENIS M. DUNN, ESQUIRE Attorney for Plaintiff We hereby Consent to the above discontinuance:... Sabetlan Jean Claude Eenshuistra PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA 16 Fri : I By: Denis M. Dunn, Esquire Attorney I.D. #34583 The William William Penn Building RI 109 Chesley Drive Media, PA 19063 (610) 565-2670 SILVER SPRING SQUARE II, L.P. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff CIVIL ACTION NO. 11-1558 Civil Term vs. Jeff Roberts and Angela Roberts, h/w, Rebecca Richmond, : Jessica Sabetian and Jean Claude Eenshuistra Defendants PRAECIPE TO DISMISS AS TO DEFENDANT JEAN CLAUDE EENSHUISTRA ONLY TO THE PROTHONOTARY: Please mark the above-captioned action discontinued with prejudice as to Defendant Jean Claude Eenshuistra only. PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA_ By: DENIS M. DUNN,-PSQUI Attorney for Plaintiff I hereby Consent to the above discontin Jessica Sabetian Gttu+ % Q. ? 00f D???9D d ? -a aT3875 PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: Denis M. Dunn, Esquire Attorney I.D. #34583 The William Penn Building 109 Chesley Drive Media, PA 19063 Attorney for Plaintiff SILVER SPRING SQUARE II, L.P. Plaintiff vs. Jeff Roberts and Angela Roberts, h/w, Rebecca Richmond, Jessica Sabetian and Jean Claude Eenshuistra Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION NO. 11-1558 Civil Term NOTICE Pursuant to Pa. R. Civ. P. 236 of the Supreme Court of Pennsylvania, you are hereby notified that a Judgment has been entered against you in the above proceedinc as indicated below. /_/ Judgment by Default (liability only) /X/ Money Judgment $551,540.94. Judgment on Award of Arbitrators $ Judgment on Verdict $ Judgment by Confession IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PLEASE CALL: ATTORNEY: Denis M. Dunn, ESQUIRE at this telephone number: 610-565-2670 PROTHONOTARY: J BY: F11 ED-OFFICE PETRIKIN, WELLMAN, DAM166, H- TROT"NOT'AFY BROWN & PETROSA 2012 JUL _5 PM 2: 42 By: Denis M. Dunn, Esquire Attorney I.D. #34583 CUMBERLAND C ?l? Ney for Plaintiff The William Penn Building PENNSYLVANIA 109 Chesley Drive Media, PA 19063 (610) 565-2670 SILVER SPRING SQUARE II, L.P. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff CIVIL ACTION NO. 11-1558 Civil Term vs. Jeff Roberts and Angela Roberts, h/w, Rebecca Richmond, Jessica Sabetian and Jean Claude Eenshuistra Defendants PRAECIPE FOR DEFAULT JUDGMENT TO THE PROTHONOTARY: Kindly enter a Judgment by Default in favor of Plaintiff SILVER SPRING SQUARE II, L.P. and against Defendant Jessica Sabetian only for want of an answer in the amount of $508,332.71 together with interest at the legal rate from February 9, 2011 in the amount of $43,208.23 for a total judgment of $551,540.94. Pursuant to Pa. R.C.P. 237.1, 1 certify that written notice of the intent to filet is Praecipe was mailed or delivered to the party against whom judgment is to be entered and to his/her Attorney of Record after the default occurred and at least ten (10) days prior to the date of the filing of this Praecipe. A true and correct copy of said notice is attached hereto and marked as Exhibit "A". R.C.P. 237.1 BY: DENIS M. DUNN, ESQUIRE Attorney for Plaintiffs a? CT7 s (?d MIVd? u ENTRY OF UDGMENT AND NOW, this day of ul , 2012, Judgment by Defa6lt in favor of Plaintiff SILVER SPRING SQUARE II, L.P. and against Defendant Jessi?a Sabetian only for want of an answer in the amount of $508,332.71 together with interost at the legal rate from February 9, 2011 in the amount of $43,208.23 for a total judgm of $551,540.94. PROTHON TARY: BY: PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: Denis M. Dunn, Esquire Attorney I.D. #34583 The William Penn Building 109 Chesley Drive Media, PA 19063 Attorney for Plaintiff SILVER SPRING SQUARE II, L.P. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff CIVIL ACTION NO. 11-1558 Civil Term vs. Jeff Roberts and Angela Roberts, h/w, Rebecca Richmond, Jessica Sabetian and Jean Claude Eenshuistra Defendants IMPORTANT NOTICE TO: Jessica Sabetian 450 Newport Center Drive Newport Beach, CA 92660 and Jean Claude Eenshuistra 277 Woodcrest Aliso Viejo, CA 92656 DATED: September 23, 2011 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTE APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILE IN WRITING WI1 THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORT AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THI NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARIN AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FOF BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRI A LAWYER. E H111911 T IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE AB 'E TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFF1R LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. i 1.U111UC11011U t- 32 Soutl Carlis 1-80 (717 cc: Thomas S. Gruenbeck, Esquire ERTIFICATE OF SERVICE I, Denis M. Dunn, Esquire, hereby certify that a complete, true and correct of the Praecipe for Entry of Judgment by Default for Failure to Plead has been served upon the following by first class mail, postage prepaid on the date set forth below. Jessica Sabetian 450 Newport Center Drive Newport Beach, CA 92660 Defendant Date: PETRIKIN, WELLMAK QAMICO, BR0Wf4A_PETR0$A BY: DENIS M. DUNN, ESQUIRE The William Penn Building 109 Chesley Drive Media, PA 19063 (610) 565-2670 PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: Denis M. Dunn, Esquire Attorney I.D. #34583 The William Penn Building 109 Chesley Drive Media, PA 19063 Attorney for Plaintiff SILVER SPRING SQUARE II, L.P. Plaintiff vs. Jeff Roberts and Angela Roberts, h/w, Rebecca Richmond, Jessica Sabetian and Jean Claude Eenshuistra Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION NO. 11-1558 Civil Term AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF DELAWARE The undersigned, being duly sworn according to law, deposes and says that lie is an authorized representative of the Plaintiff in the foregoing action, that he authorized to take this Affidavit, that to the best of his knowledge, the Defendant Jess Sabetian is not in the Military or Naval Service of the United States of America or Allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act Congress of 1940 as amended. Sworn to and Subscribed before me this J'rd day of v 2012. Notary Public DENIS M. DUNN, ESQUIRE NOTANALOM 1WA$A K AMKOK NIIIq FVhk T prtrwir? PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: Denis M. Dunn, Esquire Attorney I.D. #34583 The William Penn Building 109 Chesley Drive Media, PA 19063 Attorney for Plaintiff SILVER SPRING SQUARE II, L.P. Plaintiff vs. Jeff Roberts and Angela Roberts, h/w, Rebecca Richmond, Jessica Sabetian and Jean Claude Eenshuistra Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION NO. 11-1558 Civil Term CERTIFICATION OF ADDRESSES COMMONWEALTH OF PENNSYLVANIA COUNTY OF DELAWARE The undersigned, being duly sworn according to law, deposes and says that is an authorized representative of the Plaintiffs in the foregoing action, that he I is authorized to take this Affidavit, that to the best of his knowledge, the addresses of above-named parties are as follows: Plaintiff: SILVER SPRING SQUARE II, L.P. One Independent Drive, Suite 114 Jacksonville, FL 32202-5019 Defendant : Jessica Sab 450 Newpo C>dve Newport Be 0 l DENIS M . DUNN, ESQUIRE Sworn to and Subscribed before me this 3rd day of <::l -u l 2012. Notary Public owe T"4W wrmw O?N?ion