of the unpaid rent.

Tenant: Clinical Laboratory Services Dba Physicians Medical Laboratory 363 & 365 E. Economy road Morristown, TN 37814 Angie Petett - 865-805-0781 John Mazzei - President Physicians Medical Laboratory 5846 Distribution Drive Memphis, TN 38141 Premises: 363 & 365 E. Economy Road Morristown, TN 37814 2,640 sq. ft. 08/0 I /08-07/31/0 II 08/01111-07/31/12 08/01/12-07131113 08/01/13-07131/14 08/0 I/14-07/31/15 08/01/15-07/31/15 $3,025.00 per month/$36,300.00 annual $3,176.25 per month/$38,115.00 annual $3,271.54 per month/$39,258.45 annual $3,369.68 per month/$40,436.20 annual $3,470.77 per month/$41,649.27 annual $3,574.90 per month/$42,898. 75 annual Term: Option: CAM & Taxes: Security Deposit: Assignment Fee: Late Fee: Return Check Fee: Repairs: Prorated -- $2.50 per square foot estimate $3,025 $1,000 $50 or 5% per month of the unpaid rent. $15 or 5%, whichever is greater. Landlord responsible for roof, foundation, exterior walls, (exclusive of all glass and exterior doors) and underground utilities and sewer pipes outside the exterior walls of the Premises. None Percent Rent: Tenant's Liability Insurance: Each Occurrence Bodily Injury Property General Aggregate Expires $ $ $ $ RETAIL LEASE TAYMARK MORRISTOWN, LLC "Landlord" CLINICAL LABORATORY SERVICES Dba PHYSICIANS MEDICAL LOSORATORY "Tenant" ................................................................................................................................................................. j1 TABLE OF CONTENTS ARTICLE REFERENCE PAGES 1. TERM 2. RENT AND SECURITY DEPOSIT 3. SALES REPORTS AND RECORDS 4. ADDITIONAL RENT 5. USE OF PREMISES; TENANT COVENANTS 6. COMMON AREAS 7. ALTERATIONS 8. REPAIR 9. LIENS 10. ASSIGNMENT AND SUBLETTING 11. INDEMNIFICATION 12. INSURANCE 13. WAIVER OF SUBROGATION 14. SERVICES AND UTILITIES 15. HOLDING OVER 16. SUBORDINATION 17. REENTRY BY LANDLORD 18. DEFAULT 19. REMEDIES 20. TENANT'S BANKRUPTCY OR INSOLVENCY 21. QUIET ENJOYMENT 22. DAMAGE BY FIRE, ETC. 23. EMINENT DOMAIN 24. SALE BY LANDLORD 25. ESTOPPEL CERTIFICATES 26. SURRENDER OF PREMISES 27. NOTICES 28. TAXES PAYABLE BY TENANT 29. RELOCATION OF TENANT 30. WAIVER OF TRIAL BY JURY 31. DEFINED TERMS AND HEADINGS 32. TENANT'S AUTHORITY 33. COMMISSIONS 34. TIME AND APPLICABLE LAW 36. SUCCESSORS AND ASSIGNS 36. ENTIRE AGREEMENT 37. EXAMINATION NOT OPTION 38. RECORDATION 39. LIMITATION OF LANDLORD'S LIABILITY 40. ENFORCEABILITY 41. CROSS·DEFAULT 42. RADON 43. RENEWAL OPTION 44. FORCE MAJEURE 45. WAIVER OF RIGHTS 46. NO ESTATE IN LAND 47. HOMESTEAD 48. INDEMNITIES 49. INTERPRETATION 50. JOINT LIABILITY 51. INDEPENDENT COVENANTS 52. SPECIAL STIPULATIONS EXHIBIT "A" • SITE PLAN THAT DESCRIBES THE SHOPPING CENTER AND SHOWS THE PREMISES WITH CROSS-HATCH MARKS EXHIBIT "A-1" - LEGAL DESCRIPTION OF SHOPPING CENTER EXHIBIT "A-2" - SHOPPING CENTER REA EXHIBIT "B-1" - INITIAL ALTERATIONS - Landlord Construction EXHIBIT "B-2" - INITIAL ALTERNATIONS - Tenant Construction EXHIBIT "B-3"- TENANT CONSTRUCTION EXHIBiT "C" - SUPPLEMENTAL NOTICE EXHIBIT "0" - RULES AND REGULATIONS EXHIBIT "E" - SIGN CRITERIA ii VI RETAIL LEASE REFERENCE PAGE SHOPPING CENTER: The Land, Building and Common Areas together with the Access Easement Area and the Parking Easement Area shall be collectively referred to as the "Shopping Cente~'. The Land, Access Easement Area and Parking Easement Area are each depicted on the Site Plan, as hereafter defined. Notwithstanding any provision of the Lease to the contrary, Landlord may add or delete property from the Shopping Center so long as the same does not materially and adversely affect Tenant's right of ingress and egress, or parking spaces for Tenant's customers and employees, and so long as the replacement parking for that contained in the Parking Easement Area is not materially further from the Land than the Parking Easement Area shown on the Site Plan, LANDLORD: LANDLORD'S ADDRESS: Taymark Morristown, LLC, or its assigns C/o LeBel Commercial Realty PO Box 1600 Morristown, TN 37816 TENANT: TENANTS ADDRESS: Clinical Laboratory Services, dba Physicians Medical Laboratory 363 & 365 E. Economy Rd. Morristown, TN 37814 LEASE REFERENCE DATE: PREMiSES: May 27,2008 Approximately 2640 square feet of ground floor area of a building as shown on the site plan (the "Site Plan") attached hereto as Exhibit A and by this reference made a part hereof together with the non-exclusive right to use the Common Areas, including the Access Easement Area and the Parking Easement Area, for their intended use. The building in which the Premises are located shall be referred to herein as the "BUilding" and the parcel of land upon which the Building is located, as more particularly described in the legal description attached hereto as Exhibit "A-1", shall be referred to herein as the "Land." Approx. 2640 Subject to all restrictions of record and the terms and conditions of the REA (defined below), the Premises shall be use only for medical office use (the "Permitted Use") and for no other use. Physicians Medical Laboratory August 1. 2008 PREMISES AREA: PERMITIED USE: TENANTS TRADE NAME: SCHEDULED DELIVERY DATE: TENANT IMPROVEMENT COMPLETION DATE: RENT COMMENCEMENT DATE: TERM OF LEASE: August 1, 2008 December 1, 2008 three ill years and approximately zero ill months beginning on the Delivery Date and ending upon the expiration of the three (3) Lease Year (as said term is defined in Section 31) following the Rent Commencement Date (the "Expiration Date"), unless sooner terminated pursuant to the Lease. LEASE YEAR 1-3 ANNUAL RENT MONTHLY INSTALLMENT OF RENT $3,025 $3,176.25 $3,271.54 $3,369.68 $3,470.77 $3,574.90 INITIAL ANNUAL RENT (Article 2): $36,300 $38,115 $39,258.45 $40,436.20 $41,649.27 $42,898.75 OPTIONS: 1 2 3 4 5 PERCENTAGE RENT N/A iii ,'{} ADDITIONAL CHARGES(Article 52) November 1, 2009 December 1, 2009 November 1, 2010 December 1, 2010 $2.50 per sq.ft. $3,025 $3485.00 $3485.00 $4010.00 $4010.00 ESTIMATE OF TENANT'S PROPORTIONATE SHARE: SECURITY DEPOSIT: PREPAID RENT: Tenant has prepaid to Landlord the 1st month's rent, In the amount of $3,025 receipt whereof, If by check subject to collection, Is hereby acknowledged. $1000 plus amounts due under Section 10.6 ASSIGNMENT/SUBLETTING FEE: REAL ESTATE BROKERS DUE COMMISSIONS: Landlord and Tenant acknowledge that Tenant is represented In this transaction by LeBel Commercial Realty ("Tenant's Broke~') and that Landlord is represented in this transaction by LeBel Commercial Realty ("Landlord's Broke~'). A. Except as otherwise permitted by Seller in writing, in Selle~s sole discretion, no portion of the Premises shall'be used for a funeral partor; flea market; Discotheque; skating rink; the sale or distribution of alcoholic beverages (except as incidental to the business being operated on the Property); bar (a bar being defined for purposes of this Agreement as an establishment offering the sale of alcoholic beverages for consumption on the premises where such sales are not incidental to the sale of food for onpremises consumption in a bona fide fast food restaurant); game room or amusement arcade; movie theater; automobile dealership or repair shop; automotive repair shop which replaces automotive engines or transmissions; billiard partor; bowling alley; industrial manufacturing; truckstop; adult bookstore or establishment selling, exhibiting or distributing pomographic or obscene materials; massage partor; so-called "head shop"; body and fender shop; off·track betting partor; health spa; "social encounte~' type restaurant; or any promotion, entertainment, or amusement activities such as traveling camivals, fairs, auctions, shows, kiosks, booths for the sale of fire works, sales by transient merchants utilizing vehicles or booths, or other promotions of any nature. The sale of alcoholic beverages shall be deemed incidental if the gross sales derived from such alcoholic beverages are less than ten percent (10%) of the total gross sales derived from the business operated on the Property; No portion of the Premises shall be used for the sale, display, lease or distribution of lumber, hardware items, plumbing supplies, electrical supplies, paint, wallpaper and wallcoverings, hard and soft flooring (Including, without limitation, tile, wood flooring, rugs and carpeting), interior design services, kitchens or bathrooms or components thereof (including, PROHIBITED USE: B. without limitation, tubs, sinks, faucets, mirrors, cabinets, showers, vanities, countertops and related hardware), indoor and outdoor lighting, window treatments (including, without limitation, draperies, curtains and blinds), cabinets, siding, ceiling fans, gardening supplies, nursery products, pool supplies, barbecue or gas grills, patio furniture and patio accessories, non· patio furniture (including, without limitation, home entertainment centers), kitchen appliances (including, without limitation, countertop small appliances and cookware), closet organizing systems, pictures or picture framing, or Christmas trees, except for the incidental sale of such items. An "incidental sale of such items" is one in which there is no more than the lesser of (i) 5% of the total square footage of the floor area of such business of sales and/or display area relating to such items, individually, or in the aggregate, (ii) 1,000 square feet of sales and/or display area relating to such items, individually or in the aggregate, or (iii) 5% of the total gross proceeds derived from the sale of such item indiVidually, or in the aggregate. For purpose of calculating the sales or display area in connection with the preceding sentence, the floor area upon which the display cases are located, plus one half of the adjacent aisle space shall be included. REA: That certain Reciprocal Easement and Agreement recorded in Book 717, Page 211 in the Registe~s Office of Hamblen County (the "Original REA"), and that certain Restrictive Covenants and Easement Agreement dated August 31, 2004 made between Landlord and Home Depot, U.S.A., Inc., recorded in the Register's Office of Hamblen County (the "Shopping Center REA" a copy of which is attached hereto as Exhibit "A-2" and incorporated herein by reference) (the Original REA together with the Shopping Center REA are hereinafler collectively referred to as the "REA"). This Lease and all rights of Tenant hereunder are and shall be subject and subordinate to the REA, or other iv r\ instrument in the nature thereof which may now or hereafter affect landlord's fee title to the Premises or landlord's interest hereunder and to any modifications, renewals, consolidations, extensions, or replacements of any of the foregoing. Tenant hereby covenants and agrees that it shall comply with the tenms of the REA throughout the tenm of this lease and indemnifies, defends and holds hanmless landlord against any claims, actions, liabilities and expenses (including without limitation, attomey's fees and expenses) arising or incurred with respect to any violation of the REA by or caused by Tenant. Ilthere is a conflict between the original REA and the Shopping Center REA, the more restrictive provision shall control. Home Depot Store: That certain Home Depot Store located on the land adjacent to the Shopping Center. The parcel of land upon which the Home Depot Store is located shall be referred to herein as the "Home Depot Parcel" which is shown as lots 1-B and 1A on that certain Final Plat of Morristown Plaza Subdivisions (Replat of lot 1) for Home Depot U.S.A., Inc., recorded on June 8, 2004 in Plat Book IPLAT, page 146 olthe Registers Office for Hamblen County, Tennessee. The Reference Page infonmation is incorporated into and made a part of the lease. In the event of any conflict between any Reference Page infonmation and the lease, the lease shall control. This lease includes Exhibits A through E, all of which are made a part of this lease. v Vi- RETAIL LEASE By this Retail Lease (this "Lease") Landlord leases to Tenant and Tenant leases from Landlord the Premises in the Shopping Center as set forth and described on the Reference Page. The Reference Page, Including all terms defined thereon, is incorporated as part of this lease. 1. TERM. 1.1 The Term of this Lease shall begin (the "Commencement Date") on the Delivery Date (as said term is hereinafter defined) and expire on the Expiration Date. Landlord shall tender possession of the Premises with all the work, if any, to be performed by Landlord pursuant to Exhibit "8-1" to this Lease substantially completed (the date that the Premises are 50 tendered is hereinafter referred to as the "Delivery Date"). Tenant shall deliver a punch fist of items not completed within thirty (30) days after the Delivery Date, and Landlord agrees to proceed with due diligence to perform its obligations regarding such items. Promptly after the Commencement Date. Landlord or Landlord's agent shall send to Tenant a Supplemental Notice in the form of Exhibit "e" attached hereto and by this reference made a part hereof, specifying the Commencement Date and the Expiration Date. The information contained within said Supplemental Notice shall be binding upon Tenant, and may be materially relied upon by Landlord, and all third parties with an interest in this Lease including Landlord's successors and assigns and all lenders, unless Landlord actually receives a written objection from Tenant to the information contained within the Supplemental Notice within thirty (30) days from the date that the Supplemental Notice is delivered by Landlord to Tenant. 1.2 Tenant agrees that in the event of the inability of Landlord to deliver possession of the Premises on the Scheduled Delivery Date, Landlord shall not be liable for any damage resulting from such Inability. No such failure to give possession on the Scheduled Delivery Date shall affect the other obligations of Tenant under this Lease, except that if landlord is unable to deliver possession of the Premises within three hundred and sixty-five (365) days following the Scheduled Delivery Date (other than as a result of strikes, shortages of materials or similar matters beyond the reasonable control of landlord and Tenant is notified by Landlord in writing as to such delay), Tenant and Landlord shall each have the option to terminate this Lease, by providing written notice of termination adually received by the other prior to the Delivery Date, except that Tenant shall not have the right to so terminate the Lease if said delay is as a result of. (a) Tenant's failure to agree to plans and specifications; (b) Tenant's request for materials, finishes or installations other than Landlord's standard except those, if any, that Landlord shall have expressly agreed to furnish without extension of time agreed by Landlord; (c) Tenant's change in any plans or specifications; or, (d) performance or completion by a party employed by Tenant, and if Landlord so terminates the Lease, Landlord shall pay to Tenant the sum of One Hundred 00/100 Dollars ($100.00) as addttional consideration to Tenant for entering into this Lease and for granting this right of termination. 1.3 In the event Landlord shall permit Tenant to occupy the Premises prior to the Commencement Date, such occupancy shall be subject to atl the provisions of this Lease. Said early possession shaH not advance the Expiration Date. Tenant agrees that promptly following the Delivery Oate, Tenant will, with due diligence, proceed to construct the initial Tenant improvements described in Exhibit "B-2" to this Lease (the "Initial Tenant Improvements") and to install such trade fixtures and equipment as shall be necessary or appropriate in order to prepare the Premises for the opening of business. Subject to Force Majeure (as said tenn is hereinafter defined), in the event that Tenant does not open the Premises for buslness by the Tenant Improvement Completion Oate, Landlord, in addition to all other remedies hereunder, shall have the option of terminating this Lease by giving Tenant written notice of such termination, whereupon this Lease shall be terminated, unless by the date of giving of said written notice Tenant shall have opened the Premises for the conduct of its business, or charge Tenant the sum of One Hundred Dollars (S1 00.00) per day as Landlord's damages arising out of such breach. Tenant agrees to submit to Landlord within thirty (30) days from the execution of this Lease plans and specifications covering all work which Tenant proposes to do at Tenant's sole cost and expense in the Premises. Such plans and specifications shall be prepared in such detail as Landlord may require and Tenant agrees not to commence work upon any of the aforesaid Tenant's work until Landlord has approved such plans and specifications in writing, all required permits for such Tenant's work have been issued, and all of Tenant's contingencies described in this Lease, if any, that must be satisfied or waived prior to the Commencement Date, have been satisfied or waived. Landlord agrees to act with reasonable promptness with respect to such plans and specifications. Tenant agrees to perform such work in accordance with all of the terms and provisions of this Lease, inclUding, without limitation, the terms and provisions described in Exhibit "B-3" to this Lease. By occupying the Premises as a tenant, or by installing fixtures, facilities or equipment or performing finishing work and interior improvements, Tenant shall be deemed to have accepted the Premises and to have acknowledged that the Premises are in the condition required by this Lease. 2. RENT AND SECURITY DEPOSIT. 2.1 Beginning with the Rent Commencement Date, Tenant agrees to pay to Landlord the Annual Rent in effect from time to time by paying the Monthly Installment of Rent then in effect on or before the first day of each full calendar month during the Term, except that the first month's Monthly Installment of Rent shall be paid upon the execution of this Lease. The Monthly Installment of Rent in effect at such time shall be onetwelfth of the Annual Rent in effect at such time. Rent for any period during the Term which is less than a full month shall be a prorated portion of the Monthly Installment of Rent based upon a thirty (30) day month. Said Annual Rent shall be paid to Landlord, without deduction or offset and without notice or demand, at the Landlord's address, as set forth on the Reference Page, or to such other person or at such other place as Landlord may from time to time designate in writing. 2.2 Intentionally Deleted. 2.3 Intentionally Deleted. 2.4 During the Term, Tenant agrees that neither Tenant nor any person, firm or corporation who or which controls or is controlled by Tenant shall, directly or indirectly, individually or as a partner, stockholder or otherwise, own, operate or become financially interested in any competing business within a radius of five miles from the outside boundary of the Shopping Center. In the event of any violation of such restriction and in addition to Landlord's other remedies, the gross sales of any such business within the restricted radius shall be included in Tenant's Gross Sales for purposes of computing Percentage Rent. 2.5 Tenant shall pay, as additional rent, all taxes on rent directly or indirectly imposed by any governmental authority. 2.6 Tenant recognizes that late payment of any rent or other sum due under this Lease will result in administrative expense to Landlord, the extent of which additional expense is extremely difficult and economically impractical to ascertain. Tenant therefore agrees that if rent or any other sum is not paid within five (5) days after same is due and payable pursuant to this Lease, a late charge shall be imposed in an amount equal to the greater of: (a) Fifty Dollars (S50.00), or (b) a sum equal to five percent (5%) per month of the unpaid rent or other payment. The amount of the late charge to be paid by Tenant shall be reassessed and added to Tenant's obligation for each successive monthly period until paid, The provisions of this Section 2.5 in no way relieve Tenant of the obligation to pay rent or other payments on or before the date on which they are due, nor do the terms of this Section 2.5 in any way affect Landlord's remedies pursuant to Article 19 of this Lease in the event said rent or other payment is unpaid after date due. If Tenant fails in two consecutive months to make rental payments within five (5) days after due, Landlord, in order to reduce its administrative costs, may require, by giving written notice to Tenant (and in addition to any interest accruing, as well as any other rights and remedies, or any other provision or covenant of this Lease), that Monthly Installments of Rent are to be paid quarterly in advance instead of monthly and that aU 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 rental as provided in this Lease. Any acceptance of a monthly rental payment or of a personal or corporate check thereafter by Landlord shall not be construed as a subsequent waiver of said rights nor as Landlord's waiver of any previous default. In the event any check in payment of moneys due Landlord is not honored by the financial institution upon which such check was drawn and is returned to Landlord for any reason whatsoever, Landlord may impose, as additional rent, a returned check service charge of $15.00 or five percent (5%) of the amount of the returned check, whichever is greater, each time a check is not honored and returned to Landlord. Such returned check service charge shall not preclude Landlord from imposing a charge as provided in above. Tenant hereby further covenants and agrees that if any two (2) checks in payment moneys due Landlord are not honored by the financial institution upon which such checks are drawn and are .0 returned to landlord for any reason whatsoever, Landlord may require upon written notice to Tenant, that any and all subsequent payments of the rent or additional rent as provided herein, for the balance of the term of this lease or renewal or extension thereof, be made by either cash, money order or cashier's check. 2.7 Tenant shall deposit the Security Deposit with landlord upon the execution of this lease. Said sum shall be held by landlord as security for the faithful performance by Tenant of all the terms, covenants and conditions of this Lease to be kept and performed by Tenant and not as an advance rental deposit or as a measure of landlord's damage in case of Tenant's default. If Tenant defaults with respect to any provision of this Lease, Landlord may use any part of the Security Depostt for the payment of any rent or any other sum in default, or for the payment of any amount which Landlord may spend or become obligated to spend by reason ofTenanfs defautt, or to compensate Landlord for any other loss or damage which Landlord may suffer by reason of Tenant's default. If any portion is so used, Tenant shall within five (5) days after written demand therefor, deposit with landlord an amount sufficient to restore the Security Deposit to its original amount and Tenant's failure to do so shall be a material breach of this lease. Except to such extent, if any, as shall be required by law, landlord shall not be required to keep the Security Deposit separate from its general funds, and Tenant shall not be entitled to interest on such 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 at such time after termination of this lease when landlord shall have determined that all of Tenant's obligations under this lease have been fulfilled. 3. SALES REPORTS AND RECORDS. 3.1 3.2 3.3 Intentionally Deleted. Intentionally Deleted. Intentionally Deleted. 4. ADDITIONAL RENT. 4.1 Beginning with the Rent Commencement Date, Tenant shall pay as additional rent for each lease Year Tenant's Proportionate Share (as said term is hereinafter defined in Section 31) of CAM and Taxes for such lease Year. 4.1.1 "CAM" shall be defined as: all direct costs of operation, maintenance, repair, use, and management of the Shopping Center, as determined in accordance with generally accepted accounting principles, including the following costs by way of illustration, but not limitation: insurance charges relating to all insurance policies and endorsements deemed by landlord to be reasonably necessary or desirable for the protection, preservation or operation of all or any part of the Shopping Center; utility costs for all parts of the Shopping Center shared in common by tenants of the Shopping Center and tenants' utility costs to the extent not separately metered such as heat, light, power, steam, gas, waste disposal, water and sewer; the cost of patrol and alarm services (including any central station signaling system); the cost of maintaining, repairing and replacing any heating, ventilating and air conditioning systems not otherwise being paid for by tenants; the cost of landscaping and seasonal decorations; the cost of maintaining and repairing any exterior stairway, truck way, loading dock, package pick-up station, pedestrian sidewalk and ramp; the cost of maintaining, repairing, operating and policing the buildings and improvements in the Shopping Center and their appurtenances and equipment, including, without limitation, the roof, common signage, the garage and/or parking lot and any driveway areas, including the construction and maintenance of lighting facilities therefor, storm water retention, comfort stations and first aid stations; exterior window cleaning costs; labor costs; aU management costs, including management fees, if any; employee benefits and payroll taxes; accounting and legal fees; material costs; equipment costs, including the cost of service agreements on equipment; tool costs; the costs of licenses, permits and inspedion fees, and any sales, use or service taxes incurred in connedion therewith; and the cost to utilize and/or to maintain any easement benefitting the Shopping Center. Excluded are amounts chargeable to specific tenants of the Shopping Center and amounts resulting from strudural replacements to the exterior of any individual store buildings of the Shopping Center which are normally chargeable to capital account under sound accounting principles. CAM shall not include depreciation or amortization of the Shopping Center or equipment in the Shopping Center except as provided herein, loan principal payments, costs of alterations of tenants' premises, leasing commissions, interest expenses on long-term borrowings, advertising costs or management salaries for executive personnel other than personnel located at the Shopping Center. In addttion, Landlord shall be entttied to amortize and Include as an addttional rental adjustment: (i) an allocable portion of the cost of capital improvement items which are reasonably calculated to reduce operating expenses; (ii) fire sprinklers and suppression systems and other life safety systems; and (iii) other capital expenses which are required under any govemmentallaws, regUlations or ordinances which were not applicable to the Shopping Center at the time it was construded. All such costs shall be amortized over the reasonable lite of such improvements in accordance with such reasonable life and amortization schedules as shall be determined by Landlord in accordance with generally accepted accounting principles, with interest on the unamortized amount at one percent (1 %) in excess of the prime lending rate announced from time to time as such by the main office of Bank of America, or its successor, located in Atlanta, Georgia. 4.1.2 'Taxes" shall be defined as: Real estate taxes and any other taxes, charges and assessments which are levied with respect to the Shopping Center or the land appurtenant to the Shopping Center, or with respect to any improvements, fixtures and equipment or other property of landlord, real or personal, located in the Shopping Center and used in connedion with the operation of the Shopping center and said land, any payments to any ground lessor in reimbursement of tax payments made by such lessor: and all fees, expenses and costs incurred by Landlord in investigating, protesting, contesting or in any way seeking to reduce or avoid increase in any assessments, levies or the tax rate pertaining to any Taxes to be paid by Landlord in any lease Year. Taxes shall not include any corporate franchise, or estate, inheritance or net income tax, or tax upon any transfer by landlord of its interest in this lease or the Shopping Center. 4.2 The annual determination of CAM shall be made by landlord and certified to Tenant. Tenant may review the books and records supporting such determination in the office of landlord, or landlord's agent, during normal business hours, upon giving landlord five (5) days advance written notice within sixty (60) days after receipt of such determination, but in no event more often than once in anyone year period. 4.3 Prior to the actual determination thereof for a lease Year, landlord may from time to time estimate Tenant's liability for CAM and/or Taxes for the lease Year or portion thereof. landlord will give Tenant written notification of the amount of such estimate and Tenant agrees that it will pay, together with its Monthly Installments of Rent due in such Lease Year, additional rent in the amount of one--twelfth (1/12th) of such estimate. Any such increased rate of Monthly Installments of Rent pursuant to this Section 4.3 shall remain in effect until further written notification to Tenant pursuant hereto. 4.4 When the above mentioned actual determination of Tenant's liability for CAM andlor Taxes is made in any lease Year and when Tenant is so notified in writing, then: 4.4.1 If the total additional rent Tenant actually paid pursuant to Section 4.3 on account of CAM and/or Taxes for the Lease Year is less than Tenant's liability for CAM andlor Taxes, then Tenant shall pay to landlord such deficiency as additional rent in one lump sum within thirty (30) days of receipt of landlord's bill therefor; and 4.4.2 If the total additional rent Tenant actually paid pursuant to Section 4.3 on account of CAM and/or Taxes for the lease Year is more than Tenant's liability for CAM andlor Taxes, then landlord shall credit the difference against the then next due payment(s) to be made by Tenant under this Article 4. 4.5 If the Rent Commencement Date is other than January 1 or if the Expiration Date is other than December 31, Tenant's liability for CAM and Taxes for the lease Year in which said Date occurs shall be prorated based upon a three hundred sixty (360) day year. 5. USE OF PREMISES; TENANT COVENANTS. 5.1 Tenant shall in good faith continuously following the earlier of the Rent Commencement Date and the Tenant Improvement Completion Date, and thereafter throughout the Term of this lease conduct and carry on in the entire Premises under Tenant's Trade 2 ~(}/ Name the type of business described on the Reference Page and shall not conduct or carry on any other business. 5.2 Tenant shall comply with all govemmentallaws, ordinances and regulations applicable to the use of the Premises and its occupancy and shall promptly comply with all governmental orders and directions for the correction, prevention and abatement of any violations in or upon, or in connection with, the Premises, all at Tenant's sole expense. 5.3 Tenant shall operate its business in a dignified manner and in accordance with high standards of a store operation so as to maintain a character in keeping with the rest of Shopping Center, and so as to produce the maximum Tenant's Gross Sales and shall, at all times when the Premises are open for business to the pUblic, keep the Premises properly equipped with fixtures, stocked with an adequate supply of merchandise and attended by adequate personnel. 5.4 Tenant shall keep the Premises open for business with the public on the days and during the hours as from time to time may be reasonably determined by Landlord to be consistent with the days and hours of other tenants in the Shopping Center. In no event shall any Tenant be open for business less than 10:00 a.m. to 8:00 p.m. Monday through Saturday and 1:00 p.m. to 6:00 p.m. on Sunday. Notwithstanding the provisions of this Section, Tenant shall not be required to keep its Premises open for business at any time prohibited by applicable law, ordinance or governmental regulations and Tenant shall be permitted to close the Premises during reasonable periods for repairing, cleaning or decorating the Premises, with the prior written permission from Landlord. 5.5 In the event that at any time during the Term, or any extension or renewal thereof, Tenant should vacate, abandon, or desert the Premises or cease operating the store therein, then, in any such event, Tenant shall be in default hereunder and landlord shall have, in addrtion to all rights and remedies provided under Article 19, the right to collect not only the Annual Rent, but also addrtional rental in lieu of any Percentage Rent that might have accrued during such period calculated pursuant to the terms of Section 19.8, prorated on a daily basis for each day that Tenant shall fail to do business within the Premises in accordance with the terms of this Article 5, subject in any case to the provisions of Article 22. 5.6 Tenant shall install and maintain at all times displays of merchandise in display windows in the Premises. Tenant will light any electric signs and keep the display windows in the Premises well lighted during such times as the level of light outside the Premises is less than 10foot candles of natural light, and shall keep such signs and display windows lit until at least 10:00 p.m .. Tenant shall not, without Landlord's prior written consent: (i) make any changes to the store front of the Premises; (ii) install any exterior lighting, decorations, painting, awnings, canopies and the like: or (iii) erect or install any signs, window or door lettering, placards, decoration or advertising media of any type which is visible from the exterior of the Premise, excepting only dignified displays of customary type for its display windows. No handwritten signs shall be permitted. 5.7 Tenant agrees to comply with and observe the rules and regulations shown on Exhibit "0". Tenant's failure to keep and observe said rules and regUlations shall constitute a breach of the terms of this Lease as if the same were contained herein as covenants. Landlord reserves the right from time to time to amend or supplement said rules and regulations. Notice of such amendments and supplements shall be given to Tenant and Tenant agrees to comply with and observe all such rules and regUlations, as revised. 5.8 Tenant shall not do or pennit anything to be done in or about the Premises which will in any way obstruct or interfere with the rights of other tenants or occupants of the Shopping Center or injure, annoy, or disturb them or allow the Premises to be used for any improper, immoral, unlawful, or objectionable purposes. Tenant shall not do, permit or suffer in, on, or about the Premises the sale of any alcoholic liquor or, without Landlord's prior consent, lottery tickets or other like games of chance, without the written consent of Landlord first obtained, or the commission of any waste. Tenant shall not do or permit anything to be done on or about the Premises or bring or keep anything into the Premises which will in any way increase the rate of, invalidate or prevent the procuring of any insurance protecting against loss or damage to the Shopping Center or any of its contents by fire or other casualty or against liability for damage to property or injury to persons in or about the Shopping Center or any part thereof; and shalt cooperate with Landlord's insurance representatives. 5.9 Tenant may install at Tenant's expense an exterior sign conforming to the general appearance of other signs in the Shopping Center and the sign criteria described in Exhibit liE" of MExhibit A-2- to this Lease. Tenant shall at all times keep all sIgns in accordance with Landlord's sign criteria and in good condition, proper operating order and in accordance with all applicable government regUlations. Use of the roof of the Premises is reserved to Landlord and Landlord may install upon the roof equipment. signs, antenna, displays and other objects and may construct additional stories above the Premises, provided any such use does not unreasonably interfere with Tenant's occupancy of the Premises. Upon termination of this Lease, Tenant shall remove any signs and repair any damage to the Shopping Center caused by the installation and removal thereof, or, at Landlord's option, such signs shall become part of the realty and belong to Landlord without compensation to Tenant with title passing to Landlord under this Lease as by a bill of sale. 5.10 Tenant shall not, and shall not direct, suffer or permit any of its agents, contractors, employees, licensees or invitees to at any time handle, use, manufacture, store or dispose of in or about the Premises or the Shopping Center any (collectively "Hazardous Materials") flammables, explosives, radioactive materials, hazardous wastes or materials, toxic wastes or materials, or other similar substances, petroleum products or derivatives or any substance subject to regulation by or under any federal, state and local laws and ordinances relating to the protection of the environment or the keeping, use or disposition or environmentally hazardous materials, substances, or wastes, presently in effect or hereafter adopted, all amendments to any of them, and all rules and regulations issued pursuant to any of such laws or ordinances (collectively "Environmental Laws"), nor shall Tenant suffer or permit any Hazardous Materials to be used in any manner not fully in compliance with all Environmental Laws, in the Premises or the Shopping Center and appurtenant land or allow the environment to become contaminated with any Hazardous Materials. Notwithstanding the foregoing, and subject to Landlord's prior written consent, Tenant may handle, store, use or dispose of products containing small quantities of Hazardous Materials (such as aerosol cans containing insecticides, toner for copiers, paints, paint remover and the like) to the extent customary and necessary for general office purposes; provided that Tenant shall always handle, store, use, and dispose of any such Hazardous Materials in a safe and lawful manner and never allow such Hazardous Materials to contaminate the Premises, Shopping Center and appurtenant land or the environment. Tenant shall protect, defend, indemnify and hold each and all of the Landlord Entrties (as defined in Article 31) harmless from and against any and all loss, claims, liability or costs (including court costs and attorney's fees) incurred by reason of any actual or asserted failure of Tenant to fUlly comply with all applicable Environmental Laws, or the presence, handling, use or disposition in or from the Premises of any Hazardous Materials (even though permissible under all applicable Environmental Laws or the provisions of this Lease), or by reason of any actual or asserted failure of Tenant to keep, observe, or perform any provision of this Section 5.10, which obligation shall survive the termination and expiration of this Lease. 5.11 Tenant shall not install any equipment that exceeds the capacity of the utility lines serving the Premises or the building of which the Premises are a part. 5.12 It is expressly understood and agreed that nothing herein contained shall be construed as a grant or rental of or a conveyance of: any rights in the roof or exterior of the building or buildings of which the Premises constitute a part: the air space (occupied or not) above a horizontal elevation plane conterminous with the bottom edge of the structural steel frame work supporting the roof of the Premises; the air space (occupied or not) below a horizontal elevation plane conterminous with the finished floor level of the Premises; or of the land upon which the Premises is located. COMMON AREAS. SUbject to Landlord's rights under Article 17 and the rules and regulations set forth In Exhibij "D", as may be amended from time to time by Landlord in its discretion, Tenant, and its licensees, concessionaires, employees and customers (for purposes of this Article, collectively ''Tenant") shall have the non-exclusive right to use the "Common Areas" (which shall be defined as the automobile parking areas, driveways, truck and service courts, walls and other facilities designated for common use, as constituted from time to time), in common with Landlord, other tenants of the Shopping Center and other persons entitled to use the same. Landlord may require that automobiles operated by Tenant or its employees be parked in specific portions of the Common Areas or other parking areas outside the Shopping Center which are in reasonable proximity thereto. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close parts of the Common Areas for such periods of time as may be necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any utility type facilities, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other ads as 6. 3 ~ in the use of good business judgment Landlord shall detennine to be appropriate for the Shopping Center; provided, however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant's business. Landlord shall have the right at any time to change the dimensions and location of any buildings in the Shopping Center and the arrangement and/or locations of entrances, parking areas, sidewalks, landscaped areas, passageways or other parts of the Common Areas and to erect additional buildings and other structures in the Shopping Center, and to change the name, number or designation by which the Shopping Center is commonly known. 7. ALTERATIONS. 7.1 Except for those, if any, specifically provided for in Exhibit "B-2" to this Lease, Tenant shall not make or suffer to be made any alterations, additions, or improvements, including, but not limited to, the attachment of any fixtures (except trade fixtures in the ordinary course of the Tenant's business) in, on, or to the Premises or any part thereof or the making of any improvements as required by Article 8, without the prior written consent of Landlord. When applying for such consent, Tenant shall, if requested by Landlord, furnish complete plans and specifications for such alterations, additions and improvements. 7.2 In the event Landlord consents to the making of any such atteration, addition or improvement by Tenant, the same shall be made using a contrador approved by Landlord, at Tenant's sale cost and expense. If such contractor or any subcontrador of such contractor shall employ any non-union labor or supplier, Tenant shall be responsible for and hold Landlord hannless from any and all delays, damages and extra costs suffered by Landlord as a result of any dispute with any labor unions concerning the wage, hours, terms or conditions of the employment of any such labor. In any event Landlord may charge Tenant a reasonable charge to cover its overhead as it relates to such proposed wol1<. 7.3 All alterations, additions or improvements proposed by Tenant shall be constructed in accordance with all government laws, ordinances, rules and regUlations and Tenant shaU, prior to construction, provide the additional insurance required under Article 12 in such case, and also all such assurances to Landlord, including but not limited to, waivers of lien, surety company performance bonds and personal guaranties of individuals of substance as Landlord shall require to assure payment of the costs thereof and to protect Landlord and the Shopping Center and appurtenant land against any loss from any mechanic's, materialmen's or other liens. Tenant shall pay in addition to any sums due pursuant to Article 4, any increase in real estate taxes attributable to any such alteration, addition or improvement for so long, during the Term, as such increase is ascertainable; at Landlord's election said sums shall be paid in the same way as sums due under Article 4. 7.4 All alterations, additions, and improvements in, on, or to the Premises made or installed by Tenant, including carpeting, shall be and remain the property of Tenant during the Term but, excepting furniture. furnishings, movable partitions of less than full height from floor to ceiling and other trade fixtures, shall become a part of the realty and belong to Landlord without compensation to Tenant upon the expiration or sooner termination of the Term, at which time title shall pass to Landlord under this Lease as by a bill of sale, unless Landlord elects otherwise. Upon such election by Landlord, Tenant shall upon demand by Landlord, at Tenant's sole cost and expense, forthwith and with all due diligence remove any such alterations, additions or improvements which are designated by Landlord to be removed, and Tenant shall forthwith and with all due diligence, at its sale cost and expense, repair and restore the Premises to their original condition, reasonable wear and tear and damage by fire or other casualty excepted. 7.5 Tenant may not file a ~Notice of Commencement- with resped to such alterations, additions, or improvements without Landlord's prior written approval. 8. REPAIR. 8.1 Landlord shall have no obligation to alter, remodel, improve, repair, decorate or paint the Premises, except as specified in Exhibit "B-1" if attached to this Lease and except that Landlord shall repair and maintain the strudural portions of the roof, foundation and exterior walls of the Premises (exclusive of all glass and exclusive of all exterior doors), and underground utility and sewer pipes outside the exterior walls of the Premises, except repairs rendered necessary by the negligence of Tenant, its agents, employees, contractors, guests, or invitees. By taking possession of the Premises, Tenant accepts them as being in good order, condition and repair and in the condition in which Landlord is obligated to deliver them. It is hereby understood and agreed that no representations respecting the condition of the Premises or the Shopping Center have been made by Landlord to Tenant, except as specifically set forth in this Lease. Landlord shall not be liable for any failure to make any repairs or to perfonn any maintenance unless such failure shall persist for an unreasonable time after written notice of the need of such repairs or maintenance is given to Landlord by Tenant. Landlord shall not be liable for any damages or injury to the person, business (or any loss of income therefrom), goods, wares, merchandise or other property of Tenant, Tenant's employees, invitees, customers or any other person in or about the Premises or the Shopping Center, whether such damage or injury is caused by or results from: (a) fire, steam, eledricity, water, gas or rain; (b) the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances. plumbing, air-conditioning or lighting fixtures or any other cause; (c) conditions arising in or about the Premises or upon other portions of any building or buildings of which the Premises is a part, or from other sources or places; or (d) any ad or omission of any other tenant of any building or buildings of which the Premises is a part. Landlord shall not be liable for any such damage or injury even if the cause of or the means of repairing such damage or injury are not accessible to Tenant. The provisions of this Sedion 8.1 shall not exempt Landlord from liability for Landlord's gross negligence or willful misconduct. 8.2 Except as expressly provided herein to the contrary, Tenant shall, at all times during the Term, keep the entire Premises in good condition and repair, including windows, glass and plate glass, doors, skylights and special store entries, interior walls and finish work, floors and floor coverings, electrical systems and fixtures, plumbing work and fixtures and heating, ventilating and air conditioning equipment, excepting damage by fire, or other casualty, and in compliance with all existing and future applicable govemmentallaws, ordinances and regulations, promptly complying with all governmental orders and directives for the correction, prevention and abatement of any violations thereof in or upon, or conneded with, the Premises, and in compliance with all rules, orders and regulations of the National Board of Fire Underwriters of Landlord's fire insurance rating organization or other bodies exercising similar functions in connection with the prevention of fire or the corredion of hazardous conditions which apply to the Premises, aU at Tenant's sole expense. Tenant shall, at its own cost and expense, enter into a regularly scheduled preventive maintenance/service contract with a maintenance contractor approved by Landlord for servicing aU heating and air conditioning s)lstems and equipment serving the Premises (and a copy thereof shall be furnished to Landlord). The service contract must include all services suggested by the equipment manufadurer in the operation/maintenance manual and must become effective within thirty (30) days of the date Tenant takes possession of the Premises. Landlord may, upon notice to Tenant, enter into such a maintenance/service contract on behalf of Tenant or perform the work and in either case, charge Tenant the cost thereof along with a reasonable amount for Landlord's overhead. 8.3 Except as provided in Article 22, there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant's business arising from the making of any repairs, alterations or improvements in or to any portion of the Shopping Center or the Premises or to fixtures, appurtenances and equipment in the Shopping Center. Except to the extent, if any, prohibited by law, Tenant waives the right to make repairs at Landlord's expense under any law, statute or ordinance now or hereafter in effect. 8.4 Tenant shall not enter into any contract for work in the Premises without Landlord's prior written approval. All persons dealing with Landlord are hereby put on notice that the interest of Landlord in the Premises shall not be subject to mechanic's liens based upon Tenant's failure to pay any contractor. sub-contractor, laborer, materialman or supplier in connection with any improvement of the Premises. 8.5 If Tenant refuses or negleds to make repairs as required under this Article 8, Landlord shall have the right, but not the obligation, to make such repairs without liability to Tenant for any loss or damage that may occur to Tenant's merchandise, fixtures or other property, or to Tenant's business by reason thereof, and upon completion thereof Tenant shall pay as additional rent Landlord's cost of making such repairs plus twenty percent (20%) for overhead, upon presentation of a bill therefor by Landlord, together with interest thereon from the date of completion of such repairs at the rate of eighteen percent (18%) per annum or the highest rate permitted by law, whichever is greater. 8.6 Upon the termination of this Lease, Tenant shall surrender the Premises in good condition and repair, reasonable wear and tear and casualty excepted, and Tenant shall surrender the keys for the Premises to Landlord at the place then fixed for payment of rent, and shatt inform Landlord of aU combinations on locks, safes, and vaults, if any, in the Premises. Any personalty remaining in the Premises after the terminC;ltion of this Lease shall be deemed abandoned, and Landlord shall have the right to dispose of it as Landlord chooses. Tenant's obligation to observe and 4 .(;\, perform this covenant shall survive the expiration or other termination of this Lease. 9. LIENS. Tenant wfIJ pay all costs of construction done by it or caused to be done by it on the Premises as permitted by this Lease. Tenant will keep the Shopping Center free and clear of all construction, mechanic's, materialmen's, laborer's and supplier's liens, resulting from construction done by or for Tenant. Landlord and Tenant acknowledge and agree that any alterations, additions, or improvements made by Tenant to the Premises are made on behalf of Tenant, not Landlord, and that Tenant is not acting as agent of Landlord and, thus, the interest of Landlord in the Premises and the Shopping Center shall not be subject to liens for improvements made by Tenant. Any lien filed by any contractor, materialman, laborer or supplier performing work for Tenant shall attach only to Tenant's interest in the Premises. Tenant agrees to indemnify, defend (by counsel reasonably acceptable to Landlord) and hold harmless Landlord from and against any and all cost and liabilities and any and all mechanic's, materialmen's or laborer's liens arising out of or pertaining to any improvements or construction done by Tenant. All persons and entities contracting or otherwise dealing with Tenant relative to the Premises or the Shopping Center are hereby placed on notice of the provisions of this Paragraph, and Tenant shall further notify in writing such persons or entities of the provisions of this Paragraph prior to commencement of any Tenant work in the Premises. If any construction, mechanic's, materialmen's or laborer's lien is ever claimed, fixed or asserted against the Premises or any other portion of the Shopping Center in connection with any such Tenant work, Tenant shall, within ten (10) days after receipt by Tenant of notice of such lien, discharge same as a lien either by payment or by posting of any bond as permitted by law. If Tenant shall fail to discharge any such lien, whether valid or not. within ten (10) days after receipt of notice from Landlord, Landlord shall have the right, but not the obligation, to discharge such lien on behalf of Tenant and all costs and expenses incurred by Landlord associated with the discharge of the lien, including without limitation, attorney's fees. shall constitute additional rent hereunder and shall be immediately due and payable by Tenant. 10. ASSIGNMENT AND SUBLETTING, 10.1 Tenant shall not have the right to assign or pledge this Lease or to sublet the whole or any part of the Premises whether voluntarily or by operation of law, or permit the use or occupancy of the Premises by anyone other than Tenant. and shall not make, suffer or permit such assignment, subleasing or occupancy, without the prior written consent of Landlord, and said restrictions shall be binding upon any and all assignees of the Lease and subtenants of the Premises. In the event Tenant desires to sublet. or permit such occupancy of, the Premises, or any portion thereof, or assign this Lease, Tenant shall give written notice thereof to Landlord at least sixty (60) days but no more than ninety (90) days prior to the proposed commencement date of such subletting or assignment, which notice shall set forth the name of the proposed tenant or assignee, the relevant terms of any sublease or assignment and copies of financial reports and other relevant financial reports and other relevant financial information of the proposed subtenant or assignee. 10.2 Notwithstanding any assignment or subletting, permitted or otherwise, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of the rent specified in this Lease and for compliance with all of its other obligations under the terms, provisions and covenants of this Lease. Upon the occurrence of an Event of Default, if the Premises or any part of them are then assigned or sublet. Landlord, in addition to any other remedies provided in this Lease or prOVided by law, may, at its option, collect directly tram such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant under this Lease, and no such collection shall be construed to constitute a novation or release of Tenant from the further performance of Tenant's obligations under this Lease. 10.3 In addition to Landlord's right to approve of any subtenant or assignee, Landlord shall have the option. in its sale discretion, in the event of any proposed subletting or assignment, to terminate this Lease, or in the case of a proposed subletting of less than the entire Premises, to recapture the portion of the Premises to be sublet, as of the date the subletting or assignment is to be effective. The option shall be exercised, if at all, by Landlord giving Tenant written notice given by Landlord to Tenant within thirty (30) days following Landlord's receipt of Tenanfs written notice as required above. If this Lease shall be terminated with respect to the entire Premises pursuant to this Section, the Term of this Lease shall end on the date stated in Tenant's notice as the effective date of the sublease or assignment as if that date had been originally fixed in this Lease for the expiration of the Term. If Landlord recaptures under this Section only a portion of the Premises, then rent to be paid from time to time during the unexpired Term shall abate proportionately based on the proportion by which the approximate square footage of the remaining portion of the Premises shall be less than that of the Premises as of the date immediately prior to such recapture. Tenant shall, at Tenant's own cost and expense, discharge in full any outstanding commission obligation on the part of Landlord with respect to this Lease, and any commissions which may be due and owing as a result of any proposed assignment or SUbletting, whether or not the Premises are recaptured pursuant to this Section 10.3 and rented by Landlord to the proposed tenant or any other tenant. In the event that Tenant sells, sublets, assigns or transfers this Lease, Tenant shall pay to Landlord as additional rent an 10.4 amount equal to one hundred percent (100%) of any Increased Rent (as defined below) when and as such Increased Rent is received by Tenant. As used in this Section, "Increased Rent" shall mean the excess of (i) all rent and other consideration which Tenant is entitled to receive by reason of any sale, sublease, assignment or other transfer of this Lease, over (li) the rent otherwise payable by Tenant under this Lease at such time. For purposes of the foregoing, any consideration received by Tenant in form other than cash shall be valued at its fair market value as determined by Landlord in good faith. 10.5 Notwithstanding any other provision hereof, Tenant shall have no right to make (and Landlord shall have the absolute right to refuse consent to) any assignment of this Lease or sublease of any portion of the Premises if at the time of either Tenant's notice of the proposed assignment or sublease or the proposed commencement date thereof, there shall exist any uncured default of Tenant or matter which will become a default of Tenant with passage of time unless cured, or rt the proposed assignee or sublessee is an entity: (a) with which Landlord is already in negotiation as evidenced by the issuance of a written proposal; (b) is already an occupant of the Shopping Center unless Landlord is unable to provide the amount of space required by such occupant; (c) is a governmental agency; (d) is incompatible with the character of occupancy of the Shopping center; (e) would reduce the amount of Gross Sales generated at the Premises; or (1) would subject the Premises to a use which would: (i) involve increased personnel or wear upon the Shopping Center; (ii) violate any exclusive right granted to another tenant of the Shopping Center; (iii) require any addition to or modification of the Premises or the Shopping Center in order to comply with building code or other governmental requirements; or, (iv) involve a violation of Section 5.10. Tenant expressly agrees that Landlord shall have the absolute right to refuse consent to any such assignment or sublease and that for the purposes of any statutory or other requirement of reasonableness on the part of Landlord such refusal shall be reasonable. 10.6 Upon any request to assign or sublet, Tenant will pay to Landlord the AssignmenUSubletting Fee plus, on demand, a sum equal to all of Landlord's costs, including attorney's fees, incurred in investigating and considering any proposed or purported assignment or pledge of this Lease or sublease of any of the Premises, regardless of whether Landlord shall consent to, refuse consent, or determine that Landlord's consent is not required for, such assignment, pledge or sublease. Any purported sale, assignment, mortgage, transfer of this Lease or subletting which does not comply with the provisions of this Article 10 shall be void. 10.7 If Tenant is a corporation, partnership trust, limited liability company. or other entity or association, any transfer or transfers of or change or changes within any twelve (12) month period in the number of the outstanding voting shares of the corporation, the general partnership interests in the partnership or the identity of the persons or entities controlling the activities of such partnership trust, limited liability company, or other entity or association, resulting in the persons or entities owning or controlling a majority of such shares, partnership interests or activities of such partnership trust. limited liability company, or other entity or association, at the beginning of such period no longer having such ownership or control shall be regarded as equivalent to an assignment of this Lease to the persons or entities acquiring such ownership or control and shall be SUbject to all the provisions of this Article 10 to the same extent and for all intents and purposes as though such an assignment. 11. INDEMNIFICATION. None of the Landlord Entities shalt be liable and Tenant hereby waives all claims against them for any damage to any property or any injUry to any person in or about the Premises or the Shopping Center by or tram any cause whatsoever (including without limiting the foregoing, rain or water leakage of any character from the roof, windows, walls, basement, pipes, plumbing works or appliances, the Shopping Center not being in good condition or repair, gas, fire, oil. electricity or theft), except to the extent caused by or arising from the sale gross 5 , O. negligence of Landlord or its agents or employees. Tenant shall protect, indemnify and hold the Landlord Entities harmless from and against any and all loss, claims, liability or costs (including court costs and attorney's fees) incurred by reason of (a) any damage to any property (including but not limited to property of any Landlord Entity) or any injury (including but not limited to death) to any person occurring in, on or about the Premises or the Shopping Center to the extent that such injury or damage shall be caused by or arise from any adual or alleged act, neglect, fault, or omission by or of Tenant, its agents, servants, employees, invitees, visitors, guests, or contractors to meet any standards imposed by any dUty with respect to the injury or damage; (b) the conduct or management of any work or thing whatsoever done by the Tenant in or about the Premises or from transactions of the Tenant concerning the Premises; (c) Tenant's failure to comply with any and all governmental laws, ordinances and regulations applicable to the condition or use of the Premises or its occupancy; or (d) any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of the Tenant to be perfonned pursuant to this Lease. The provisions of this Article shall survive the tennination of this Lease with respect to any claims or liability accruing prior to such termination. 12. INSURANCE. 12.1 Tenant shall keep in force throughout the Tenn: (a) a Commercial General Liability insurance policy or policies to protect the Landlord Entities against any liability to the public or to any invitee of Tenant or a Landlord Entity incidental to the use of or resulting from any accident occurring in or upon the Premises with primary coverage limits of not less than $1,000,000.00 per occurrence and not less than $1,000,000.00 in the annual aggregate, plus excess coverage limits of not less than $2,000,000.00 per occurrence and not less than 52,000,000.00 in the annual aggregate, such that the total coverage limits are not less than $1,000,000.00 per occurrence and not less than 52,000,000.00 in the annual aggregate, or such larger amount as Landlord may prudently require from time to time, covering bodily injury and property damage liability and $1,000,000.00 products/completed operations aggregate, with such contractual liability endorsement and such endorsements deleting from such policies the "Care, Custody and Control", the "Alterations and Extraordinary Repairs", and the "Contract Liability" exclusions and all other exclusions of similar import or effed, as Landlord may require; (b) a Business Auto Liability insurance policy or policies covering owned, non-owned and hired vehicles with limits of not less than $1,000,000.00 per accident; (c) an insurance policy or policies protecting against liability under Wol1<:er's Compensation Laws with limits at least as required by statute; (d) an Employers liability insurance policy or policies with limtts of $500,000.00 per accident, $500,000.00 disease policy limit, S500,000.00 disease· each employee; (e) All Risk or Special Fonn insurance coverage protecting Tenant against loss of or damage to Tenant's atterations, additions, improvements, carpeting, floor coverings, panelings, decorations, fixtures, inventory, plate glass and other business personal property situated in or about the Premises to the full replacement value of the property so insured. Tenant agrees, at its own expense, to comply with all rules and regulations of the Fire Insurance Rating Organization having jurisdiction of the Premises and to comply with all requirements imposed by Landlord's insurance carriers, if any; and, (f) a Business Interruption Insurance policy or policies with limits of liability representing loss of at least approximately six months of income. 12.2 Each of the aforesaid policies shall (a) be provided at Tenant's expense; (b) name the Landlord Entities as additional insureds, such that the loss payee clauses of said policies for additional insureds shall read as follows: "[ Landlord name] their successors and assigns and employees and agents"; (c) be issued by an insurance company authorized to transact business in the state in which the Shopping Center is located and rated at least "A Class VII" by Best's Insurance Reports during the Tenn; and (d) provide that said insurance shall not be canceled unless thirty (30) days prior written notice (ten days for non-payment of premium) shall have been given to Landlord; and said policy or policies or certificates thereof shall be delivered to Landlord by Tenant no later than the earlier of the Commencement Date or the date that Tenant first occupies the Premises, and at least thirty (30) days prior to each renewal of said insurance. 12.3 Whenever Tenant shall undertake any atterations, additions or improvements in, to or about the Premises ('Work") the aforesaid insurance protection must extend to and include injuries to persons and damage to property arising in connection with such Work, without limitation, including liability arising under any applicable structural work act, and such other insurance as Landlord shall require; and the policies of or certificates evidencing such insurance must be delivered to Landlord prior to the commencement of any such Work. 13. WAIVER OF SUBROGATION. So long as their respective insurers so permit, Tenant and Landlord hereby mutually waive their respective rights of recovery against each other for any loss insured by fire, extended coverage, All Risks or other insurance now or hereafter existing for the benefrt of the respective party but only to the extent of the net insurance proceeds payable under such policies. Each party shall obtain any special endorsements required by their insurer to evidence compliance with the aforementioned waiver. Notwithstanding anything contained herein to the contrary, on or prior to the Commencement Date, Tenant shall cause its insurer to agree to a waiver of subrogation of its claims against Landlord. 14. SERVICES AND UTILITIES. Tenant shall pay for all water, gas, heat, light, power, telephone, sewer, sprinkler system charges and other utilities and services used on or from the Premises, together with any taxes, penalties and surcharges or the like pertaining thereto and any maintenance charges for utilities. If any such services are not separately metered to Tenant, Tenant shall pay such proportion of all charges jointly metered with other premises as determined by Landlord, in its sole discretion, to be reasonable. Any such charges paid by Landlord and assessed against Tenant shall be immediately payable to Landlord on demand and shall be additional rent hereunder. Landlord shalt in no event be liable for any interruption or failure of utility services on or to the Premises. 15. HOLDING OVER. Tenant shall pay Landlord for each day Tenant retains possession of the Premises or part of them after termination of this Lease by lapse of time or otherwise at the rate rHoldover Rate") which shall be 200% of the greater at. (a) (i) the amount of the Annual Rent for the last period prior to the date of such tennination plus (ii) Percentage Rent under Article 2 plus (iii) Tenant's Proportionate Share of CAM and Taxes under Article 4; or, (b) the then market rental value of the Premises as determined by Landlord assuming a new lease of the Premises of the then usual duration and other tenns, in either case prorated on a daily basis, and also pay all damages sustained by Landlord by reason of such retention. If Landlord gives notice to Tenant of Landlord's election to that effect, such holding over shall constitute renewal of this Lease for a period from month to month or one year, whichever shall be specified in such notice, in either case at the Holdover Rate, but if the Landlord does not so elect, no such renewal shall result notwithstanding acceptance by Landlord of any sums due hereunder after such termination; and instead, a tenancy at sufferance at the Holdover Rate shall be deemed to have been created. In any event, no provision of this Article 15 shall be deemed to waive Landlord's right of reentry or any other right under this Lease or at law. 16. SUBORDINATION. Without the necessity of any additional document being executed by Tenant for the purpose of effecting a subordination, this Lease shall be subject and subordinate at all times to any ground or underlying leases and to the lien of any mortgages, deeds to secure debt or deeds of trust now or hereafter placed on, against or affecting the Shopping Center, or Landlord's interest or estate in the Shopping Center; provided, however, that if the lessor, mortgagee, trustee, or holder of any such mortgage, deed to secure debt or deed of trust elects to have Tenant's interest in this Lease be superior to any such instrument, then, by notice to Tenant, this Lease shall be deemed superior, whether this Lease was executed before or after said instrument, and, provided, however, that if any ground or underlying leases terminate for any reason or any mortgage or deed to secure debt is foreclosed or a conveyance in lieu of foreclosure is made for any reason, Tenant shall, notwithstanding any subordination, attorn to and become the Tenant of the successor in interest to Landlord at the option of such successor in Interest. Notwithstanding the foregoing. Tenant covenants and agrees to execute and deliver upon demand such further instruments evidencing such subordination or superiority of this Lease as may be required by Landlord. 17. REENTRY BY LANDLORD. Landlord reserves and shall at all times have the right to re-enter the Premises to inspect the same, to supply any service to be provided by Landlord to Tenant under this Lease, to show said Premises to prospective purchasers, mortgagees or tenants, to display a "For Rent" sign (after notice from either party of intent to terminate this Lease or at any time within the three (3) months prior to the Expiration Date), and to alter, improve or repair the Premises and any portion of the Shopping Center, without abatement of rent. and may for that purpose erect, use and maintain scaffolding, pipes, conduits and other necessary structures and open any wall, ceiling or floor in and through the Shopping Center and Premises where reasonably required by the character of the work to be performed, provided entrance to the Premises shall not be blocked thereby, and further provided that the business of Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim for damages for any injUry or inconvenience to or interference with Tenanrs business, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned by any action of Landlord authorized by this Article 17. Tenant agrees to reimburse Landlord, on demand, as additional rent. for any expenses which Landlord may incur in thus effecting compliance with Tenant's obligations under this Lease. 6 .(). 18. DEFAULT. 18.1 Except as otherwise provided in Article 20, the following events shall be deemed to be Events of Default under this Lease: 18.1.1 Tenant shall fail to pay when due any sum of money becoming due to be paid to Landlord under this Lease, whether such sum be any installment of the rent reserved by this Lease, any other amount treated as additional rent under this Lease, or any other payment or reimbursement to Landlord required by this Lease, whether or not treated as additional rent under this Lease, and such failure shall continue for a period of five (5) days after written notice that such payment was not made when due, but if any such notice shall be given for the twelve (12) month period commencing with the date of such notice. the failure to pay within five (5) days after due any additional sum of money becoming due to be paid to Landlord under this Lease during such period shall be an Event of Default without notice. 18.1.2 Tenant shall fail to comply with any term, provision or covenant of this Lease which is not provided for in another Section of this Article and shall not cure such failure within twenty (20) days (forthWith, if the failure involves a hazardous condition) after written notice of such failure to Tenant. 18.1.3 business therein. 18.1.4 Tenant shall fail to vacate the Premises immediately upon termination of this Lease, by lapse of time or otherwise, or upon termination ofTenan!'s right to possession only. 18.1.5 Tenant shall become insolvent, admit in writing its inability to pay its debts generally as they become due, file a petition in bankruptcy or a petition to take advantage of any insolvency statute, make an assignment for the benefit of creditors, make a transfer in fraud of creditors, apply for or consent to the appointment of a receiver of itsetf or of the whole or any substantial part of its property, or file a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws, as now in effect or hereafter amended, or any other applicable law or statute of the United States or any state thereof. 18.1.6 A court of competent jurisdiction shall enter an order, jUdgment or decree adjudicating Tenant bankrupt, or appointing a receiver of Tenant, or of the whole or any substantial part of its property, without the consent of Tenant, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under the bankruptcy laws of the United States, as now in effect or hereafter amended, or any state thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within thirty (30) days from the date of entry thereof. 18.1.7 Tenant's effects are levied upon or attached under process against Tenant, which is not satlsfied or dissolved within thirty (30) days after written notice from Landlord to Tenant to obtain satisfaction thereof. Tenant shall abandon or vacate any substantial portion of the Premises or cease continuously operating its 19. REMEDIES. 19.1 Except as otherwise provided in Article 20, upon the occurrence of any of the Events of Default described or referred to in Article 18, Landlord shall have the option to pursue anyone or more of the following remedies without any notice or demand whatsoever, concurrently or consecutively and not alternatively: 19.1.1 terminating the Lease. 19.1.2 Upon any termination of this Lease, whether by lapse of time or otherwise, or upon any tennination of Tenant's right to possession without termination of the Lease, Tenant shall surrender possession and vacate the Premises immediately, and deliver possession thereof to Landlord, and Tenant hereby grants to Landlord full and free license to enter into and upon the Premises in such event and to repossess Landlord of the Premises as of Landlord's former estate and to expel or remove Tenant and any others who may be occupying or be within the Premises and to remove Tenant's si9ns and other evidence of tenancy and all other property of Tenant therefrom. In the event of any entry by Landlord after an Event of Default on the part of Tenant, Landlord shall not in any manner be deemed guilty of trespass, eviction or forcible entry or detainer, and Landlord shall not Incur any liability for any damage resulting therefrom, as Tenant waives any right to claim damages for such re-entry and expulsion. Any such entry by landlord shall not and does not relinquish Landlord's right to rent or any other right given to Landlord under this Lease or by operation of law. 19.1.3 Upon any termination of this Lease, whether by lapse of time or otherwise, Landlord shall be entitled to recover as damages, all rent, including all abated rent, if any, and any amounts treated as additional rent under this Lease, and other sums due and payable by Tenant on the date of termination, plus rent as it becomes due for the remainder of the Tenn unless and until the Premises are relet. 19.1.4 Upon any termination of Tenant's right to possession only without termination of the Lease: landlord may, at its election, tenninate this Lease or tenninate Tenant's right to possession only, without 19.1.4.1 Neither such termination of Tenant's right to possession nor Landlord's taking and holding possession thereof as provided in Section 19.1.2 shall terminate the Lease or release Tenant, in whole or in part, from any obligation, including Tenant's obligation to pay the rent, including any amounts treated as additional rent. under this Lease for the full Tenn, and if Landlord so elects Tenant shall pay forthwith to Landlord the sum equal to the entire amount of the rent, including any amounts treated as additional rent under this Lease. for the remainder of the Term plus any other sums provided in this Lease to be paid by Tenant for the remainder of the Term. 19.1.4.2 Landlord may, but need not, relet the Premises or any part thereof for such rent and upon such terms as Landlord, in its sole discretion, shall determine (including the right to relet the Premises for a greater or lesser term than that remaining under this Lease, the right to relet the Premises as a part of a larger area, and the right to change the character or use made of the Premises). In connection with or in preparation for any reletting, Landlord may, but shall not be required to, make repairs, alterations and additions in or to the Premises and redecorate the same to the extent Landlord deems necessary or desirable, and Tenant shall, upon demand, pay the cost thereof, together with Landlord's expenses of reletting, including, without limitation, any commission incurred by Landlord. If Landlord decides to relet the Premises or a duty to relet is imposed upon Landlord by law, landlord and Tenant agree that nevertheless Landlord shall at most be required to use only the same efforts Landlord then uses to lease premises in the Shopping Center generally and that in any case that Landlord shall not be required to give any preference or priority to the showing or leasing of the Premises over any other space that Landlord may be leasing or have available and may place a suitable prospective tenant in any such other space regardless of when such other space becomes available. Landlord shall not be required to observe any instruction given by Tenant about any reletting or accept any tenant offered by Tenant unless such offered tenant has a credit...worthiness acceptable to Landlord and leases the entire Premises upon terms and conditions including a rate of rent (after giving effect to all expenditures by Landlord for tenant improvements, broker's commissions and other leasing costs) all no less favorable to Landlord than as called for in this Lease, nor shall Landlord be required to make or permit any assignment or sublease for more than the current term or which Landlord would not be required to permit under the provisions of Article 9. Except as may be required by law, Landlord shall have no duty to mitigate its damages. 19.1.4.3 Until such time as Landlord shall elect to terminate the Lease and shall thereupon be entitled to recover the amounts specified in such case in Section 19.1.3, Tenant shall pay to Landlord upon demand the full amount of all rent, including any amounts treated as additional rent under the Lease and other sums reserved in this Lease for the remaining Tenn, together with the costs of repairs, alterations, additions, redecorating and Landlord's expenses of reletting and the collection of the rent accruing therefrom (including attorney's fees and broker's commissions), as the same shall then be due or become due from time to time, less only such consideration as Landlord may have received from any reletting of the Premises: and Tenant agrees that Landlord may file suits from time to time to recover any sums falling due under this Article 19 as they become due. Any proceeds of reletting by landlord in excess of the amount then owed by Tenant to Landlord from time to time shall be credited against Tenant's future obligations under this Lease but shall not otherwise be refunded to Tenant or inure to Tenant's benefit. 7 ~ 19.2 Landlord may, at Landlord's option, enter into and upon the Premises with, or If Tenant shall have vacated the Premises, without five (5) days notice, if Landlord detennines in its sale discretion that Tenant is not acting within a commercially reasonable time to maintain, repair or replace anything for which Tenant is responsible under this Lease and correct the same, without being deemed in any manner guilty of trespass, eviction or forcible entry and detainer and without incurring any liability for any damage or interruption of Tenant's business resulting therefrom. If Tenant shall have vacated the Premises, Landlord may at Landlord's option re-enter the Premises at any time during the last six months of the then current Term of this Lease and make any and all such changes, alterations, revisions, additions and tenant and other improvements in or about the Premises as Landlord shall elect, all without any abatement of any of the rent otherwise to be paid by Tenant under this Lease. 19.3 If, on account of any breach or default by Tenant in Tenant's obligations under the terms and conditions of this Lease, it shall become necessary or appropriate for landlord to employ or consult with an attorney concerning or to enforce or defend any of Landlord's rights or remedies arising under this Lease, Tenant agrees to pay all Landlord's reasonable attorney's fees. 19.4 Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the other remedies provided in this Lease or any other remedies provided by law (all such remedies being cumulative), nor shall pursuit of any remedy provided in this Lease constitute a forfeiture or waiver of any rent due to Landlord under this Lease or of any damages accruing to landlord by reason of the violation of any of the terms, provisions and covenants contained in this Lease. 19.5 No act or thing done by Landlord or its agents during the Term shall be deemed a termination of this Lease or an acceptance of the surrender of the Premises, and no agreement to terminate this Lease or accept a surrender of said Premises shall be valid, unless in writing signed by Landlord. No waiver by Landlord of any violation or breach of any of the terms, provisions and covenants contained in this Lease shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions and covenants contained in this Lease. Landlord's acceptance of the payment of rental or other payments after the occurrence of an Event of Default shall not be construed as a waiver of such default, unless Landlord so notifies Tenant in writing. Forbearance by Landlord in enforcing one or more of the remedies provided in this Lease upon an Event of Default shall not be deemed or construed to constitute a waiver of such default or of Landlord's right to enforce any such remedies with respect to such default or any subsequent default. 19.6 To secure the payment of all rentals and other sums of money becoming due from Tenant under this Lease, Landlord shall have and Tenant grants to Landlord a first lien upon the leasehold interest of Tenant under this Lease, which lien may be enforced in equity, and a continuing security interest upon all goods, wares, equipment, fixtures, furniture, inventory, accounts, contract rights, chattel paper and other personal property of Tenant now or hereafter situated on the Premises, and such property shall not be removed therefrom without the consent of Landlord until all arrearages in rent as well as any and all other sums of money then due to Landlord under this Lease shall first have been paid and discharged. In the event of a default under this Lease, Landlord shall have, in addition to any other remedies provided in this Lease or by law, all rights and remedies under the Uniform Commercial Code, includin9 without limttation the right to sell the property described in this Section 19.6 at public or private sale upon five (5) days' notice to Tenant. Tenant shall execute all such financing statements and other instruments as shall be deemed necessary or desirable in Landlord's discretion to perfect the security interest hereby created. 19.7 Any and all property which may be removed from the Premises by Landlord pursuant to the authority of this Lease or of law, to which Tenant is or may be entitled, may be handfed, removed and/or stored, as the case may be, by or at the direction of Landlord but at the risk, cost and expense of Tenant, and Landlord shall in no event be responsible for the value, preservation or safekeeping thereof. Tenant shall pay to landlord, upon demand, any and all expenses incurred in such removal and all storage charges against such property so long as the same shall be in Landlord's possession or under Landlord's control. Any such property of Tenant not retaken by Tenant from storage within thirty (30) days after removal from the Premises shall, at landlord's option, be deemed conveyed by Tenant to Landlord under this Lease as by a bill of sale without further payment or credit by Landlord to Tenant. 19.8 For the purposes of determining the amounts payable under this Article, Percentage Rent shall be included as additional rent on the basis of the average gross receipts for the thirty-siX (36) months (or such less number of months since the date Tenant first opened for business from the Premises) preceding Tenant's default. 20. TENANrs BANKRUPTCY OR INSOLVENCY. 20.1 If at any time and for so long as Tenant shall be subjected to the provisions of the United States Bankruptcy Code or other law of the United States or any state thereof for the protection of debtors as in effect at such time (each a "Debtor's law"): 20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or receiver of Tenant's assets (each a ''Tenant's Representative") shall have no greater right to assume or assign this Lease or any interest in this Lease, or to sublease any of the Premises than accorded to Tenant in Article 10, except to the extent Landlord shall be required to pennit such assumption, assignment or sublease by the provisions of such Debtor'S law. Without limitation of the generality of the foregoing, any right of any Tenant's Representative to assume or assign this Lease or to sublease any of the Premises shall be SUbject. to the conditions that: 20.1.1.1 Such Debtor's Law shall provide to Tenant's Representative a right of assumption of this Lease which Tenant's Representative shall have timely exercised and Tenant's Representative shall have fully cured any default of Tenant under this Lease. 20.1.1.2 Tenant's Representative or the proposed assignee, as the case shall be, shall have deposited with Landlord as security for the timely payment of rent an amount equal to the larger of: (a) three month's rent and other monetary charges accruing under this Lease; and (b) any sum specified in Article 5; and shall have provided Landlord with adequate other assurance of the Mure performance of the obligations of the Tenant under this Lease. Without limitation, such assurances shall include, at least, in the case of assumption of this Lease, demonstration to the satisfaction of the Landlord that Tenant's Representative has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure landlord that Tenant's Representative will have sufficient funds to fulfill the obligations of Tenant under this Lease; and, in the case of assignment, submission of current financial statements of the proposed assignee, audited by an independent certified pubHc accountant reasonably acceptable to Landlord and showing a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future perfonnance by such assignee of all of the Tenant's obligations under this Lease. 20.1.1.3 The assumption or any contemplated assignment of this Lease or subleasing any part of the Premises, as shall be the case, will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound. 20.1.1.4 Landlord shall have, or would have had absent the Debtor's Law, no right under Article 10 to refuse consent to the proposed assignment or sublease by reason of the identity or nature of the proposed assignee or sublessee or the proposed use of the Premises concerned. 21. QUIET ENJOYMENT. Landlord represents and warrants that it has full right and authority to enter into this Lease and that Tenant, while paying the rental and perfonning its other covenants and agreements contained in this Lease, shall peaceably and quietly have, hold and enjoy the Premises for the Term without hindrance or molestation from Landlord SUbject. to the tenns and provisions of this Lease, subject to the terms of any mortgages, security deeds, other security interests, ground or underlying leases, agreements and encumbrances that affect: the Shopping Center as of the date of this Lease. Landlord shall not be liable for any interference or disturbance by other tenants or third persons, nor shall Tenant be released from any of the obligations of this Lease because of such interference or disturbance. 8 '-.U- 22. DAMAGE BY FIRE, ETC. 22.1 In the event the Premises or the Shopping Center are damaged by fire or other cause and in Landlord's reasonable estimation such damage can be materially restored within ninety (90) days, Landlord shall forthwith repair the same and this Lease shall remain in full force and effect, except that Tenant shaH be entitled to a proportionate abatement in rent from the date of such damage. Such abatement of rent shall be made pro rata in accordance with the extent to which the damage and the making of such repairs shall interfere with the use and occupancy by Tenant of the Premises from time to time. Within forty~five (45) days from the date of such damage, landlord shall notify Tenant, in writing, of Landlord's reasonable estimation of the length of time within which material restoration can be made, and Landlord's determination shall be binding on Tenant. For purposes of this Lease, the Shopping Center or Premises shall be deemed "materially restored" if they are in such condition as would not prevent or materially interfere with Tenant's use of the Premises for the purpose for which it was being used immediately before such damage. 22.2 If such repairs cannot, in Landlord's reasonable estimation, be made within ninety (90) days. Landlord shall have the option of giving Tenant, at any time within sixty (60) days after such damage, notice terminating this Lease as of the date of such damage. In the event of the giving of such notice, this Lease shall expire and all interest of the Tenant in the Premises shall terminate as of the date of such damage as if such date had been originally fixed in this Lease for the expiration of the Term. In the event that Landlord does not exercise its option to terminate this Lease, then Landlord shall repair or restore such damage, this Lease continuing in full force and effect, and the rent hereunder shall be proportionately abated as provided in Section 22.1. 22.3 Landlord shall not be required to repair or replace any damage or loss by or from fire or other cause to any panelings, decorations, partitions, additions, railings, ceilings, floor coverings, office fixtures or any other property or improvements installed on the Premises or belonging to Tenant. Any insurance which may be carried by Landlord or Tenant against loss or damage to the Shopping Center or Premises shall be for the sale benefit of the party carrying such insurance and under its sale control. Tenant covenants and agrees to reopen for business in the Premises within thirty (30) days after notice from Landlord that Landlord has substantially completed its work with respect to the restoration of the Premises. 22.4 In the event that Landlord should fail to complete such repairs and material restoration within sixty (60) days after the date estimated by Landlord therefor as extended by this Section 22.4, Tenant may at its option and as its sale remedy terminate this Lease by delivering written notice to Landlord, within fifteen (15) days after the expiration of said period of time, whereupon the Lease shall end on the date of such notice or such later date fixed in such notice as if the date of such notice was the date originally fixed in this Lease for the expiration of the Term; provided. however, that if construction is delayed because of changes, deletions or additions in construction requested by Tenant, strikes, lockouts, casualties, Acts of God, war, material or labor shortages, government regulation or control or other causes beyond the reasonable control of Landlord, the period for restoration, repair or rebuilding shall be extended for the amount of time Landlord is so delayed. 22.5 Notwithstanding anything to the contrary contained in this Article: (a) Landlord shall not have any obligation whatsoever to repair, reconstruct, or restore the Premises when the damages resulting from any casualty covered by the provisions of this Article 22 occur during the last twenty four (24) months of the Term or any extension thereof, but if Landlord determines not to repair such damages Landlord shall notify Tenant and if such damages shall render any material portion of the Premises untenantable Tenant shall have the right to terminate this Lease by notice to Landlord within fifteen (15) days after receipt of Landlord's notice; and (b) in the event the holder of any indebtedness secured by a mortgage or deed of trust covering the Premises or Shopping Center requires that any insurance proceeds be applied to such indebtedness, then Landlord shall have the right to terminate this Lease by delivering written notice of termination to Tenant within fifteen (15) days after such requirement is made by any such holder, whereupon this Lease shalt end on the date of such damage as if the date of such damage were the date originally fixed in this Lease for the expiration of the Term. 22.6 In the event of any damage or destruction to the Shopping Center or Premises by any peril covered by the provisions of this Article 22, it shall be Tenant's responsibility to properly secure the Premises and upon notice from Landlord to remove forthwith, at its sole cost and expense, such portion of all of the property belonging to Tenant or its licensees from such portion or all of the Shopping Center or Premises as Landlord shall request. 23. EMINENT DOMAIN. If all or any substantiai part of the Premises shall be taken or appropriated by any public or quasi-public authority under the power of eminent domain, or conveyance in lieu of such appropriation, either party to this Lease shall have the right, at its option. of giving the other, at any time within thirty (30) days after such taking, notice terminating this Lease, except that Tenant may only terminate this Lease by reason of a taking or appropriation, if such taking or appropriation shall be so substantial as to materially interfere with Tenanrs use and occupancy of the Premises. If neither party to this Lease shall so elect to terminate this Lease, the rental thereafter to be paid shall be adjusted on a fair and equitable basis under the circumstances. In addition to the rights of Landlord above, if any substantial part of the Shopping Center shall be taken or appropriated by any public or quasi-public authority under the power of eminent domain or conveyance in lieu thereof, and regardless of whether the Premises or any part thereof are so taken or appropriated, Landlord shall have the right, at its sale option, to terminate this Lease. Landlord shall be entitled to any and all income, rent, award, or any interest whatsoever in or upon any such sum, which may be paid or made in connection with any such public or quasi· public use or purpose, and Tenant hereby assigns to Landlord any interest it may have in or claim to all or any part of such sums, other than any separate award Which may be made with respect to Tenanrs trade fIXtures and moving expenses; Tenant shall make no claim for the value of any unexpired Term. 24. SALE BY LANDLORD. In event of a sale or conveyance by Landlord of the Shopping Center, the same shall operate to release Landlord from any future liability upon any of the covenants or conditions, expressed or implied, contained in this Lease in favor of Tenant, and in such event Tenant agrees to look solely to the responsibility of the successor in interest of Landlord in and to this Lease. Except as set forth in this Article 24, this Lease shall not be affected by any such sale and Tenant agrees to attorn to the purchaser or assignee. If any security has been given by Tenant to secure the faithful performance of any of the covenants of this Lease, Landlord may transfer or deliver said security, as SUCh, to Landlord's successor in interest and thereupon Landlord shall be discharged from any further liability with regard to said security. 25. ESTOPPEL CERTIFICATES. Within ten (10) days following any written request which Landlord may make from time to time, Tenant shaH execute and deliver to Landlord or mortgagee or prospective mortgagee a sworn statement certifying: (a) the date of commencement of this Lease; (b) the fact that this Lease is unmodified and in full force and effect (or, if there have been modifications to this Lease, that this Lease is in full force and effect, as modified, and stating the date and nature of such modifications); (c) the date to which the rent and other sums payable under this Lease have been paid; (d) the fact that there are no current defaults under this Lease by either Landlord or Tenant except as specified in Tenant's statement; and (e) such other matters as may be requested by Landlord. Landlord and Tenant intend that any statement delivered pursuant to ttiis Article 25 may be relied upon by any mortgagee, beneficiary or purchaser and Tenant shall be liable for all loss, cost or expense resulting from the failure of any sale or funding of any loan caused by any material misstatement contained in such estoppel certificate. Tenant irrevocably agrees that if Tenant fails to execute and deliver such certificate within such ten (10) day period Landlord or Landlord's beneficiary or agent may execute and deliver such certificate on Tenant's behalf, and that such certificate shalf be furry binding on Tenant. 26. SURRENDER OF PREMISES. 26.1 Tenant shall, at least thirty (30) days before the last day of the Term, arrange to meet Landlord for a joint inspection of the Premises. In the event of Tenant's failure to arrange such joint inspection to be held prior to vacating the Premises, Landlord's inspection at or after Tenant's vacating the Premises shall be conclusively deemed correct for purposes of determining Tenant's responsibility for repairs and restoration. 9 ,0, 26.2 At the end of the Term or any renewal of the Term or other sooner termination of this Lease, Tenant will peaceably deliver up to Landlord possession of the Premises, together with all improvements or additions upon or belonging to the same, by whomsoever made, in the same conditions received or first installed. broom clean and free of all debris, excepting only ordinary wear and tear and damage by fire or other casualty. Tenant may, and at Landlord's request shall, at Tenanrs sole cost, remove upon termination of this Lease, any and all furniture, furnishings, movable partitions of less than full height from floor to ceiling, trade fIXtures and other property installed by Tenant, title to which shall not be in or pass automatically to Landlord upon such termination, repairing all damage caused by such removal. Property not so removed shall, unless requested to be removed, be deemed abandoned by the Tenant and title to the same shall thereupon pass to Landlord under this Lease as by a bill of sale. All other alterations, addnions and improvements in, on or to the Premises shall be deall with and disposed of as provided in Article 7 hereof. 26.3 All obligations of Tenant under this Lease not fully performed as of the expiration or earlier termination of the Term shall survive the expiration or earlier termination of the Term. In the event that Tenant's failure to perform prevents Landlord from releasing the Premises, Tenant shall continue to pay rent pursuant to the provisions of Article 15 until such performance is complete. Upon the expiration or eartier termination of the Term, Tenant shaH pay to Landlord the amount, as estimated by Landlord, necessary to repair and restore the Premises as provided in this Lease andlor to discharge Tenant's obligation for unpaid amounts due or to become due to Landlord. All such amounts shall be used and held by Landlord for payment of such obligations of Tenant, with Tenant being liable for any additional costs upon demand by Landlord, or with any excess to be returned to Tenant after all such obligations have been determined and satisfied. Any otherwise unused Security Deposit shall be credited against the amount payable by Tenant under this Lease. 27. NOTICES. Any notice or document required or permitted to be delivered under this Lease shall be addressed to the intended recipient, shall be transmitted personally, by fully prepaid registered or certified United States Mail return receipt requested, or by reputable independent contract courier or overnight delivery service furnishing a written record of attempted or actual delivery, and shall be deemed to be delivered when tendered for delivery to the addressee at its address set forth on the Reference Page, or at such other address as it has then last specified by written notice delivered in accordance with this Article 27, or if to Tenant at either its aforesaid address or its last known registered office or home of a general partner or individual owner, whether or not actually accepted or received by the addressee. 28. TAXES PAYABLE BY TENANT. In addition to rent and other charges to be paid by Tenant under this Lease, Tenant shall reimburse to Landlord, upon demand, any and all taxes payable by Landlord (other than net income taxes) whether or not now customary or within the contemplation of the parties to this Lease: (a) upon, allocable to, or measured by or on the gross or net rent payable under this Lease, including without limitation any gross income tax or excise tax levied by the State, any political subdivision thereof, or the Federal Government with respect to the receipt of such rent; (b) upon or with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy of the Premises or any portion thereof, including any sales, use or service tax imposed as a result thereof; (c) upon or measured by the Tenant's gross receipts or payroll or the value of Tenant's equipment, furniture, fixtures and other personal property of Tenant or leasehold improvements, alterations or additions located in the Premises; or (d) upon this transaction or any document to which Tenant is a party creating or transferring any interest of Tenant in this Lease or the Premises. In addition to the foregoing, Tenant agrees to pay, before delinquency, any and all taxes levied or assessed against Tenant and which become payable during the term hereof upon Tenant's equipment, furniture, fixtures and other personal property of Tenant located in the Premises. 29. RELOCATION OF TENANT. Landlord, at no expense to Tenant. on at ieast ninety (90) days prior written notice, may require Tenant to move from the Premises to other space of comparable size and decor as selected by Landlord, in Landlord's reasonable judgment. In the event of any such relocation, Landlord will pay all expenses of preparing and decorating the new premises so that they will be SUbstantially similar to the Premises from which Tenant is moving, and Landlord will also pay the expense of moving Tenant's trade fixtures, inventory and equipment to the relocated premises. In such event this Lease and each and all of the terms and covenants and conditions hereof shall remain in full force and effect and thereupon be deemed applicable to such new space except that a revised Reference Page and a revised Exhibit "A" shall become part of this Lease and shall reflect the location of the new premises. 30. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITIED BY LAW, IT IS MUTUALLY AGREED BY AND BETWEEN LANDLORD AND TENANT THAT THE RESPECTIVE PARTIES HERETO SHALL, AND THEY DO HEREBY, WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BETWEEN THE PARTIES HERETO OR THEIR SUCCESSORS OR ASSIGNS ON ANY MATIERS ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, AND/OR TENANrS USE OF, OR OCCUPANCY OF, THE PREMISES. TENANT FURTHER AGREES THAT IT SHALL NOT INTERPOSE ANY COUNTERCLAIM OR COUNTERCLAIMS IN A SUMMARY PROCEEDING OR IN ANY ACTION BASED UPON NON·PAYMENT OF RENT OR ANY OTHER PAYMENT REQUIRED OF TENANT HEREUNDER. THIS WAIVER IS MADE FREELY AND VOLUNTARILY, WITHOUT DURESS, AND ONLY AFTER EACH OF THE PARTIES HERETO HAS HAD THE BENEFIT OF ADVICE FROM LEGAL COUNSEL ON THE SUBJECT. 31. DEFINED TERMS AND HEADINGS. The Article headings shown in this Lease are for convenience of reference and shall in no way define, increase, limit or describe the scope or intent of any provision of this Lease. Any indemnification or insurance of Landlord shall apply to and inure to the benefit of all the following "Landlord Entities", being Landlord, Landlord's investment manager, and the trustees, boards of directors, officers, general partners, beneficiaries, stockholders, employees and agents of each of them. Any option granted to Landlord shall also include or be exercisable by Landlord's trustee, beneficiary, agents and employees, as the case may be. In any case where this Lease is signed by more than one person, the obligations under this Lease shall be joint and several. The terms ''Tenant" and "Landlord" or any pronoun used in place thereof shall indicate and include the masculine or feminine, the singular or plural number, individuals, firms or corporations, and their and each of their respective successors, executors, administrators and permitted assigns, according to the context hereof. Tenant hereby accepts and agrees to be bound by the figures for the square footage of the Premises shown on the Reference Page. The term ''Tenanrs Proportionate Share" shall be that fraction, the numerator of which shall be the square footage of the Premises set forth on the Reference Page, and the denominator of which shall be the total rentable square footage of all space located within buildings existing upon the Shopping Center (or, in the case of the payment of Taxes, the total square footage of all space located within buildings existing upon the tax parcel which includes the Premises). Tenant's Proportionate Share may change from time to time as the rentable square footage and/or configuration of the Shopping Center is changed. The term ~Lease Year" is deemed to be each twelve (12) month period during the Term commencing on the Rent Commencement Date: if the Rent Commencement Date is not on the first day of a month, then the first Lease Year will be deemed to end on the last day of the twelfth (12th) full month after the Rent Commencement Date, and each subseQuent Lease Year will commence on the first day of the month following the end of the preceding Lease Year. 32. TENANrS AUTHORITY. If Tenant signs as a corporation. each of the persons executing this Lease on behalf of Tenant represents and warrants that Tenant has been and is qualified to do business in the state in which the Shopping Center is located, that the corporation has full right and authority to enter into this Lease, and that all persons signing on behalf of the corporation were authorized to do so by appropriate corporate actions. If Tenant signs as a partnership, trust or other legal entity, each of the persons executing this Lease on behalf of Tenant represents and warrants that Tenant has complied with all applicable laws, rules and governmental regulations relative to its right to do business in the state and that such entity on behalf of the Tenant was authorized to do so by any and all appropriate partnership, trust or other adions. Tenant agrees to furnish promptly upon request a corporate resolution, proof of due authorization by partners, or other appropriate documentation evidencing the due authorization of Tenant to enter into this Lease. 33. COMMISSIONS. LANDLORD SHALL BE RESPONSIBLE FOR THE REAL ESTATE COMMISSIONS PAYABLE TO BOTH TENANrS BROKER AND LANDLORD'S BROKER, WITH SAID COMMISSIONS TO BE DOCUMENTED BY AN AGREEMENT WHICH SHALL BE SEPARATE FROM THIS LEASE. Except for Tenant's Broker and Landlord's Broker, each of the parties hereto represents and warrants to the other that it has not dealt with any broker or finder in connection with this Lease. Each party hereto hereby indemnifies the other, and holds the other harmless, from and against any and all loss, cost, damage or expense, including, but not limited to, court costs and attorneys' fees, incurred by a party hereto as a result of or in connection with a claim for a brokerage fee or a commission due, if such claim Is made by, through or under the other party hereto, which obligation shall survive the termination of this Lease. 34. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and all of ns provisions. This Lease shall in ali respects be governed by the laws of the state in which the Shopping Center is located. 10 \~ , 35. SUCCESSORS AND ASSIGNS. Subject to the provisions of Miele 10. the terms. covenants and conditions contained in this Lease shall be binding upon and inure to the benefit of the heirs. successors. executors. administrators and assigns of the parties to this Lease. 36. ENTIRE AGREEMENT. This Lease. together with its exhibits. contains all agreements of the parties to this Lease and supersedes any previous negotiations. There have been no representations made by the Landlord or understandings made between the parties other than those set forth in this Lease and its exhibits. This Lease may not be modified except by a written instrument duly executed by the parties to this Lease. 37. EXAMINATION NOT OPTION. Submission of this Lease shall not be deemed to be a reservation of the Premises. Landlord shall not be bound by this Lease until it has received a copy of this Lease duly executed by Tenant and has delivered to Tenant a copy of this Lease duty executed by Landlord. and until such delivery Landlord reserves the right to exhibit and lease the Premises to other prospective tenants. Notwithstanding anything contained in this Lease to the contrary, Landlord may withhold delivery of possession of the Premises trom Tenant until such time as Tenant has paid to Landlord the first month's rent and any security deposit required by Article 2 and any other sum owed pursuant to this Lease. 38. RECORDATION. Tenant shall not record or register this Lease or a short form memorandum hereof without the prior written consent of Landlord, and then shall pay all charges and taxes incident to such recording or registration. 39. LIMITATION OF LANDLORD'S LIABILITY. Redress for any claims against Landlord under this Lease shall be limited to and enforceable only against and to the extent of Landlord's interest in the Shopping Center. The obligations of Landlord under this Lease are not intended to and shall not be personally binding on, nor shall any resort be had to the private properties of, any of its trustees or board of directors and officers, as the case may be, its investment manager, the general partners thereof, or any beneficiaries, stockholders, employees, or agents of Landlord or the investment manager. 40. ENFORCEABILITY. If for any reason whatsoever any of the provisions hereof shall be vold, unenforceable or ineffedive, aU of the other provisions shall be and remain in full force and effect. 41. CROSS·DEFAULT. If, on the Commencement Date or thereafter during the Term, Tenant shall be in default in the payment of rent under the terms of another lease or leases with Landlord or with Landlord's predecessor in interest, Landlord may, at landlord's option and without notice to Tenant, add the amount of such arrearages to the rent payable hereunder and the same shall be payable by Tenant to landlord as additional rent. Any default under such other tease or leases with landlord or landlord's predecessor in interest shall be an Event of Default hereunder. 42. RADON. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who Bre exposed to it over time. levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from the county public health unit. 43. RENEWAL OPTION. Provided that Tenant has not been in default at anytime under this Lease, and provided that all other conditions and terms of this Lease have been properly and fully complied with by the Tenant, then Tenant shall have the Number of Option(s) to extend the Term of this Lease each for the Number of Years (as the "Number of Options" and the "Number of Years" are defined in the Reference Page to this Lease), on the same terms and provisions as are described in this Lease, except that Annual Rent and the Monthly Installment of Rent during such option(s) period shall be as described in the Reference Page, and except that there shall be no additional renewal options beyond those described in this Article of the Lease. The Tenant shall exercise such renewal option(s) granted hereby giving written notice thereof to the Landlord by registered or certified mail, return receipt requested, at the address of the Landlord set forth hereinabove (or at such other address hereafter designated by the Landlord), at least six (6) months prior to the expiration of the then current Term hereof. It is further understood and agreed that if such written notice of renewal, as provided herein, is not given by Tenant and received by Landlord by six (6) months prior to the expiration of the term of this Lease, said renewal option shall be null and void and of no further force or effect. 44. FORCE MAJEURE. Each party shaii be excused for the period of any delay in the performance of any obiigations hereunder when prevented from doing so by cause or causes beyond such party's absolute control which shall include, without limitation, all labor disputes, civil commotion, civil disorder, riot, civil disturbance, war, war·like operations, invasion, rebellion, hostilities, military or usurped power, sabotage, governmental regulations, orders, moratoriums or controls, fire or other casualty, inability to obtain any material, seNices or financing or Acts of God, provided, however, that such delay shall not be excused if due to the finandal condition of the party obligated to perform for any reason, and provided, however, that such delay shall not be excused for more than one hundred and eighty (180) days for any reason. 45. WAIVER OF RIGHTS. No failure of Landlord to exercise any power given Landlord hereunder, or to insist upon strict compliance by Tenant of its obligations hereunder, and no custom or practice of the parties at variance with the terms hereof, shall constitute a waiver of Landlord's right to demand exact compliance with the terms hereof. 46. NO ESTATE IN LAND. This Lease shall create the relationship of Landlord and Tenant between the parties hereto. No estate shall pass out of Landlord. Tenant has only a usufruct, not subject to levy and sale, and not assignable by Tenant except pursuant to the express terms of this Lease. 47. HOMESTEAD. Tenant waives all homestead rights and exemptions which it may have under any tawas against any obligation owing under this Lease. Tenant hereby assigns to Landlord its homestead exemption. 48. Lease. INDEMNITIES. All indemnity obligations created by virtue of this Lease shall survive the expiration or the earlier termination of this 49. INTERPRETATION. No provision of this Lease shall be construed against or interpreted to the disadvantage of either Landlord or Tenant by any court or other governmental or judicial authority by reason of either Landlord or Tenant having or being deemed to have drafted, structured, or dictated such provision. 50. JOINT LIABILITY. To the extent that there is more than one Tenant, each such Tenant shall be jointly and severally liable for all obligations of Tenant contained within this Lease. 51. INDEPENDENT COVENANTS. Tenant agrees that Tenant's covenants and obligations under this Lease shall be independent of Landlord's covenants and obligations under this Lease and that each such covenant and obligation is independent of any other covenant and obligation. Landlord's breach or non-performance of any of landlord's covenants or obligations under this Lease shall not excuse Tenant of Tenant's covenants and obligations under this Lease, and shall not be the basis for any defense of any kind or nature whatsoever to any suit by Landlord for Tenant's breach or non-performance of any of Tenant's covenants or obligations under this Lease (including, without limitation, Tenant's failure to pay rent hereunder.). 52. SPECIAL STIPULATIONS. The special stipulations attached hereto and made a part hereof. Wany. shall control Win conflict with 52.1 Additional Charges: Tenant shall pay the following additional charges: any of the foregoing provisions of this Lease. November 1. 2009 December 1. 2009 November 1. 2010 December 1, 2010 $3485.00 $3485.00 $4010.00 $4010.00 11 &- IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed under seal. effective as of the Lease Reference Date set forth on the Reference Page. WITNESSES: TENANT: / J I I • J ,,1,1'/ By: 2J&\.-[,..(h1-1.~ -y..-A I Name: I Title Dated: ~ VQ.~'7 \ j..,..~ i fi 1-1' "J..,e'S '\ Tenant's Federal Employer L, 7- -1"2-(; 2-1- C'(Lf Identification Number: . LANDLORD: Taymark Morristown, LLC Umited Uability Company I By: By: Taylor Samuels Its: Dated: 12 ,fJI IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed under seal, effective as of the Lease Reference Date set forth on the Reference Page. WITNESSES: TENANT: By: Name: Title Dated: Tenant's Federal Employer IdentifICation Number: _ ~- ~~ -~~? LANDLORD: Taymark Morristown, LLC Limited Liability Comp~fty By: By: / '1.---/ Tayfor Samuels Its" / Daied:. b(3(o ~ .. 1":4n~J <.'1 12 \0 EXHIBIT"A-l" LEGAL DESCRIPTION Page 1 of! Bcing a parcel ofland located in the First Civil District of Hamblen County, City of Morristown, State ofTennessee and beiDg more particularly described as followsj Commencing at a point located at tho intecaoclion of tho western right-of way line of Economy Rd.. (Variable RIW) and tho nartbcm rlaht-of·way lina oC Andrew Jowan Hwy. (100' RlW); thence with tho .aid rlaht-el--way or Andrew JobmiOD. Hwy. S 81'43'04OW a distance of30.00' to. "'.. OpCU top pipo fouDd; thQQOO loaving ,.Id rigbtpor·way with. commontinc ofOrecne County Bauk(WD. 717,Ps. 207) and Prater, Bukor, Funy It. Spain (WI). 343, Pg. 311) N 01'19'33- B. cn.tancc of J98.25' to .'/,. rebarw/eap found. said pin being' The T ruo Point ofBegJoning; thence S 88'.53'26 10 W a d.i!tanco of 118.25' to B. PK nail set passing through. RR.lplkc at 97.98'; thence N OI'05f53 1t W a di:ltanc:c or 42702' to a PK nail set; thencCl N 88'-45'25- B • diltanco DC 164.50' to a PK nail set aloog the westem right.-oC-way line o{Eut Economy B.d. (Variable RlW)i thcnce wiUt said rightof·way S 04'29'01" W a distance of52..89' to I %0, "rcbae set; thence leaving said rlght·o(· way with a common linc ofPieter. Barker, Fony & Spain (WD. 343. Pg. 371) N 87' 11'04" W a di:sbmcc of 25.00' to a!Jar rebllt w/cap found; tb8ltce continuing with laid common line S 01'20'28" W adi.taoco of376.78' to & Y." rebarw/cap found, said pin being The True Point of Beginning. Said Parcel described above being Lot I-C (l Plat. PI 146) baving.n. area of 55798 square feet 11,28 acres. The above-described property is shown on and described according to that certain ALTA/ACSM Land ntlc Survey for Ewing Morristown, LLC. Chicago Titlc Insurance Company and Plantcnfirst Bank dated August 2004, last revised August • 2004, prepared by MSP & Associates Land SurveyJng, Inc.,. bcuing the .eal and certification of a,F. Mclaughlin, Tennwec ProfeaioDll Land Surveyor No. 2425. which certain survey is ir.e.orporated herein by this reference and made a part of this description. a, ~ MHllSU "A-l." SHOPPING CENTER REA PAGE 1 OF 17 Document prepared by and return to: _ ---..,; BK/PG:I062/455-47I 04J..22932 l' Pm J At. _ 1U:ST...u:r.l:OIlS ------ L%L &Areal "43 . . . . . . 0'(13/2004 • 0':31 AN 'lALVI: 0.00 0.00 0.00 _ .-raue tn rlLlUl3r1:lt r.u:: Hartman. Simons. Spielman & Wood, LLP Attn: Heather L. Darden, Esq. 6400 Powers Feny Road. NW. Suite 400 Atlanta, Georgia 30339 _ ~ tECOaUlIQ rez: 15.00 %.00 Dr ~ aEQZsrza', rec 0.00 - TorM. AnOUItt Ill.aa &Al'I8C.n COO1l'r:r STArJ: 01: t~". JIM CLAWSON ucann or .caDS RESTRICTIVE COVENANTS AND EASEMENT AGREEMENT THIS RESTRICTIVE .cOVENANTS AND EASEMENT AGREEMENT (this "Agreement") is made as of August 2J., 2004 by and between EWING MORRISTOWN, LLC, a Georgia limited liability company, whose mailing address is 10 Piedmont Center, Suite 135, Atlanta, Georgia 30305 ("Ewing"), .and HOME DEPOT U.S.A., INC., a Delaware corporation, whose mailing address is 2455 Paces Ferry Road, Atlanta, Georgia 30339 ("Home D~o~. . W ! T N E §. §. E T H: WHEREAS, by virtue of a conveyance from Home Depot by special warranty deed of even date herewith, Ewing is the owner of that certain tract of land more particularly known as Lot I-C of the Final Plat of Morristown Plaza Subdivision (Replat of Lot I) for Home Depot U.S.A., Inc., recorded on June 8, 2004 in Plat Book IPLAT, page 146 ofthe Register's a.ffice for Hamblen County, Tennessee (the "Plan, and "being referred to herein as the "Ewing Property"; and WHEREAS, Home Depot is the owner of tllOse certain tracts of land more particularly k.nown as "Lot I-B" and "Lot I-A" of the Plat, said lands being contiguous to the Ewing Property (said Lot I-B and Lot I-A ):>eing hereinafterreferred to collectively as the "Home Depot Property") (the Ewing Property and the Home Depot ·Property being referred to collectively as the "Properties" and each a "Property"); and . WHEREAS, Home Depot desires to impose certain restrictions on the Ewing Property for the benefit ofthe Home Depot Property; and . WHEREAS.' Home Depot has agreed· to grant a parking easement and an access easement for the benefit of the Ewing Property; and WHEREAS, Ewing has agreed to grant an access easement for the benefit of the Home Depot Property; and WHEREAS, the creation, use and maintenance of the easements and restrictions granted herein will be beneficial to tlle Properties: . .: 696158.4 16)0.'''0)01 ~ SHOPPING CENTER REA PAGE 2 OF 17 NOW, THEREFORE, for and in consideration ofTen and No/IOO Dollars ($10.00) and other good and valuable consideration in hand paid by each party hereto to the other (including, with respect to Ewing, Home Depot's conveyance to it of the Ewing Property), the receipt and suffiCiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows: ARTICLE I - GRANT OF EASEMENTS .Section 1.01. Grant of Parking Easement to Ewing. Home Depot hereby grants and conveys to Ewing and to its employees, licensees and permittees, for the benefit of the Ewing Property, a perpetual, non-exclusive parking easement, right and privilege, appurtenant to and l1Ilming with title to the Ewmg Property, in' and to that portion of the Home Depot Property labeled "Parking Easement Area" on Exhibit A, for the purpose ofnsing and enjoying the thirtyfive (35) parking spaces therem (the "Ewing Parking Easement Area"), which Ewmg Parking Easement Area is more particularly described as the area labeled "Cross Esmt for Parking" on the PIal. Home Depot, at Home Depot's option, shall have the right to relocate the Ewing Parking Easement Area (the "Relocation Right") to another portion of the Home Depot Property npon twenty (20) days' prior written notice to Ewing, provided a reasonable alternative parking area consisting of a minimum of thirty-five (35) parking spaces is provided that has been approved in writing by Ewing, which approval shall not be unreasonably withheld, conditioned, or delayed, provided that such alterative parking area is not materially further from the Ewing Property than the Ewing Parking Easement Area (the "Relocated Parking Area"). In the event Home Depot exercises the Relocation Right, all references herein to the Ewing Parking Easement Area shall be deemed to refer to the Relocated Parking Area. Section 1.02. Reciprocal Access Easement. Home Depot and Ewing hereby grant and convey each to the other and to their employees. licensees and permittees, for the benefit of the Home Depot and Ewing Properties, a perpetual, non-exclusive access easement, right and privilege appurtenant to and running with title to the Properties, for the purpose of vehicular and pedestrian ingress. and egress between the Properties and the adjace)lt public rights of way of West Andrew Jolmson Highway and North Economy Road, over, across,. upon and through those portions of the respective Properties shown on Exhibit B as the "Access Easement Area" (the "Access Easement Area"), which Access Easement Area is more particularly described as the . area labeled "Access Esmt / Area" on the Plat, such passage and use to be in common with each Property; provided, however, the easement rights granted in this Section 1.02 shall not include or otherwise grant any parking rights or parking easements. Section 1.03. Signage Easement. Ewing, as grantor, hereby grants and conveys to Home Depot, as grantee, for tile benefit ofLo!' I-A, a non-exclusive easement under, through and across that portion of the Ewing Property as reasonably necessary for Home Depot's operation, maintenance, repair and replacement of a free-standing sign in the location shown on Exhibit "e" attached hereto, and all utility lines appurtenant thereto, which sign shall be used to display the identification only of a business or. businesses operated on Lot I-A. Home Depot shall be responsible for maintaining and repairing the sign structure in a good; first class condition, and' shall be -responsible for the cost of illuminating the sign structure and the identification signs -2G96158·4 16)0,2170301' ~ 4-U ..... ~ ~ ~ ..... -~ SHOPPING CENTER REA PAGE 3 OF 17 thereon. Home Depot shall have the right to make changes to and/or replace sign structure from time to time; provided, however, that any replacement signage structure shall be placed in substantially the same'location as the existing sign structure, and any change to the design or shape of such new sign shall be subject to the prior consent of Ewing, which consent shall not be unreasonably withheld, conditioned or delayed. Ewing hereby agrees that it will not construct any improvements on the Ewing Property so as to obstruct the view of the signage structure from adjacent drives, accessways and rights of way. Home Depot shall use the access easement granted herein in a manner designed to minimize, to the extent reasonably practicable, interference with or disruption of the businesses that shall operate from time to time on the Ewing Property and shall promptly repair any damage caused to the Ewing Property in exercising the rights granted herein. ARTICLE II • MAINTENANCE RESPONSIBILITIES Section 2.01. Maintenance Obligations. ' (A) The Ewing Parking Easement Area shall be kept and maintained by the owner of. Lotl-B of the Home Depot Property (i) in good condition and repair, and (ii) in compliance with all applicable laws, rules, regulations and ordinances. On or before January I of each calendar year, Ewing shall deliver to the Owner of Lot 1-B an amount equal to Three Hundred Eighty and NollOO Dollars ($380.00) (subject to adjustment as hereinafter provided), as Ewing's. annual contribution toward the cost of such owner's maintenance of the Ewing Parking Easement Area (as the same may b~ increased from time to time in accordance with this Agreement, the "Parking Maintenance Fee"). (B) The Access Easement Area shall be kept and maintained by the owner of Lot I-A of the Home Depot Property (i) in good condition and repair, and (ii) in compliance with all applicable laws, rules, regulations and ordinances. On or before January I of each calendar year, Ewing shall deliver to such owner an amount equal to Six Hundred Forty and NollOO Dollars ($640.00) (subject to adjustment as hereinafter provided), as Ewing's armual contribution toward the 'cost of such owner's maintenance of the Access Easement Area (as the same may be increased from time to time in accordance with this Agreement, the "Access Maintenance Fee"). The initial Parking Maintenance Fee and Access, Maintenance Fee shall each be increased by five percent (5%) as of January 31, 2006, and five percent (5%) lIS of January 31 of each successive second (2nd) anniversary thereafter. Notwithstanding any other provisions hereof, if Ewing, or any of its successors or assigns or their respective agents, representatives, invitees, guests, tenants or licensees, damages the Ewing Parking Easement Area or the Access Easement Area, Ewing shall reimburse the owner responsible for maintenance of such Easement Area for the costs and expenses for the repair and restoration of such damage within thirty (30) days after receipt of an invoice from such owner, and in the event Ewing fails to make such payment within such 3D-day period, Ewing shall be required to pay interest on the amount due at the lesser of (a) the maximum rate allowed by law or (b) fifteen percent (15%) per annum until payment is made. (e) -36961SS·4 16]0,2170]01 &-- ~HUPPlNG CENTER REA PAGE 4 OF 17 ARTICLE III - EWING PROPERTY COVENANTS Sectiou 3.01. Restrictious on Ewing Property. The Ewing Property shall be owned and used subject to the following restrictive covenants ("Restrictions"), which shall run with the land and be binding upon Ewing and each of Ewing's tenants, subtenants and other occupants, and its and their respective successors and assigns; provided, liowever, that such Restrictions shall not affect the rights of any .tenants occupying space within the Ewing Property as of the date of this Agreement pursuant to valid executed lease or other .occupancy agreement, and provided that such Restrictions shall terminate upon the later of either (i) the date upon which Home Depot ceases to own in fee the land known as Lot I-A, or (ii) such Lot I-A ceases to be used for purposes of a home improvement retail store: (A) No more than one (1) building or other structure shall be located on the Ewing Property at any time. No building or structure of any kind located on the Ewing Property shall exceed eighteen (18) feet iil height (including parapet walls or any other projections of any kind other than rooftop mechanical equipment) or contain more than twelve thousand four hundred forty-one (12,441) square feet under roof, which may include not more than two thousand six hundred forty (2,640) square feet under rooffor restaurant or other food service uses. (B) Any building or structure on the Ewing Property sl1all, where reasonably p'ossible, orient its main entrance away from the parking areas located on the Home Depot Property. (C) Ally construction on the Ewing Property shall be conducted in a manner which will limit, to the maximum extent reasonably practicable,. any interference with the operation of the Home Depot Property. (D) Readerboard signs shall not be permitted on the Ewing Property. (E) Self contained parking sufficient to comply with applicable rules and regulations of applicable governmental authorities (without variance) shall be provided by the owner of the Ewing Property with respect to the Ewing Property at all times; provided, however, that in no event shall the Ewing Property contain less than five (5) parking spaces per one thousand (1,000) square feet of improvements. The parking spaces contained within the Ewing Parking Easement Area shall be included in the total count of parking spaces for the Ewing Property for purposes 0 f . detemlining compliance of the Ewing Property with the requirements in this subsection (E). Notwithstanding the foregoing, no less than twenty-eight (28) parking spaces shall be maintained on the ..Ewing Property.at alltinles,. exclusive of the.. parking spaces in the Ewing Parking Easement Area. (F) No portion of the Ewing Property shall be used for a business or use which creates slrong, unusual or offensive odors, fumes, dust or vapors; is a public or private nuisance; emits noise or sounds which are objectionable due to intermittence, beat, frequency, shrilhless or loudness; or creates unusual fire, explosive or other hazards. (G) Except as otherwise permitted by the owner of Lot I-A in writing, in such owner's sole discretion, no portion of the Ewing Property may be leased, used or occupieq as or for a -4696158-4 1630.2170301 &- SHOPPING CENTER REA PAGE50Fl7 funeral parlor; flea market; discotheque; skating rink; the sale or distribution of alcoholic beverages (except as incidental to the business being operated'on the Ewing Property); bar (a bar being defined for purposes of this Agreement as an establishment offering the sale of alcoholic beverages for consumption on the pr~mises where such sales are not incidental to the sale of food for on-premises consumption in a bona fide fast food restaurant); unsupervised game room or amu,sement arcade; movie theater; automobiie dealership or repair shop; automotive repair shop which replaces automotive engines or transmissions; billiard parlor; bowling alley; industrial manufacturing; truckstop; adult bookstore or establishment selling, exhibiting or distributing pomographic or obscene materials; massage parlor; so-called "head shop"; body and fender shop; off-track betting parlor; health spa; or any promotion, entertainment, or amusement activities such as traveling camivals, fairs, auctions, shows, kiosks, booths for the sale of fire works, sales by transient merchants utilizing vehicles or booths, or other promotions of any nature, excluding promotions that are incidental to the operation of a business of an occupant of a building located on the Ewing Property. The sale of alcoholic beverages shall be deemed incidental if the gross sales derived from such alcoholic beverages are less than ten (10%) of the total gross sales derived from the business operated on the Ewing Property. (H) No portion of the Ewing Property shall be used for the sale, display, lease or distribution of lumber, hardware items, plumbing supplies, electrical supplies, paint, wallpaper and wallcoverings, hard and soft flooring (including, without limitation, tile, wood flooring, rugs and carpeting), interior design services, kitchens or bathrooms or components thereof (including, without limitation, tubs, sinks, faucets, mirrors, cabinets, showers, vanities, countertops and related hardware), indoor and outdoor lighting, window treatments (including, without limitation, draperies, curtains and blinds), cabinets, siding, ceiling fans, gardening supplies, nursery products, pool supplies, barbecue or gas grills, patio furniture and patio accessories, non-patio fumiture (including, without limitation, home entertainment centers), kitchen appliances (including, without limitation, countertop small appliances and cookware), closet organizing systems, pictures or picture framing, or Christmas trees, except for the incidental sale of such , . items. An "incidental sale of such items" is one in which there is no more than the lesser of (1) five percent (5%) of the total squ'are footage of floor area of such business, (ii) 1,000 square feet of sales and/or display area, relating to such items' individually or in the aggregate, or (iii) five percent (5%) of the total gross proceeds derived from any such business attributable to such items individually or in the aggregate. (1) Prior to constructing any buildings, signage, or other improvements on the·Ewing Property, Ewing shall deliver to the owner of Lot I-A a grading plan, utility plan, site plan, exterior building elevations, drainage plan,' signage plan and landscape plan for the Ewing Property (collectively, the "Plans"). The.Plans shall be subjectto the prior approval by the owner of Lot I-A, in such owner's sole discretion, and which approval shall not be required with respect to interior improvements. Notwithstanding the foregoing, in the event of any casualty or other damage or destmction of the building and/or improvements located on the Property, the owner of Lot I-A shall be deemed to have consented to any repair, rebuilding or reconstruction of a building and other iInprovements in substantially the same form and appearance as existed prior to such casualty or damage. Horne Depot, as the owner of Lot ;l-A hereby approves the following sigtiage, for which Ewing shall not be required to obtain additional consent from the owner of Lot I-A: (i) the signage. currently located on the building on the Ewing Property in the -5696J5S~ 1630.2170301 \ 0, .A...UU.ll.Ull 11..-;.' SHOPPlNG CENTER REA PAGE60F17 fonn in which such signage exists as of the date of this Agreement, (ii) an additional multi-tenant panel signage on such building, substantially as depicted in Exhibit "D" attached hereto and incorporated herein by reference, and (iii) other signage on such building which is in confonnance with the tenns and con~litions of this Agreement and the signage criteria shown on Exhibit "E" attached hereto and incorporated herein. ARTICLE IV - MISCELLANEOUS PROVISIONS Section 4.01. Time of the Essence. Time is of the essence of this Agreement. Section 4.02. Amendment. Ewing and Home Depot hereby agree that, except to the extent ()therwise set forth herein, only upon the written consent of the parties hereto may this Agreement be amended, modified or" terminated, or may any of the easements or easement areas be relocated, changed, altered, diminished or expanded. Section 4.03. Waiver. Each and every covenant and agreement contained herein shall be for any and all purposes hereof construed as separ~te and independent and the breach of any covenant by any party shall not release or discharge such party from its obligations hereunder. No delay or omission by any party to exercise its rights accruing upon any noncompliance or failure of perfonnance by any ,party shall impair any such right or be construed to be a waiver thereof. A waiver by any party hereto of any of the covenants, conditions or agreements to be perfonned by any other party shall not be construed to be a waiver of any succeeding breach or of any other covenants; conditions or agreements contained herein. Section 4.04. Severability. All rights, powers and remedies provided herein may be exercised only to the extent that the exercise thereof does not violate any then applicable law and shall be limited to the, extent necessarY to render the real covenants herein valid and enforceable. If any tenn, provision, covenant or agreement contained herein or the application thereof to any person, entity or circumstance shall be held to be invalid, illegal or unenforceable, the validity of the remaining, tenns, provisions, covenants or agreements or the application of such tenn, provision, covenant or agreement to persons, entities or circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby. Section 4.05. Binding Effect; Appurtenance. This Agreement shall be binding upon and inure to the benefit of Ewing and Home Depot and their resp'ective successors and assigns, including successors in title. 'Notwithstanding the foregoing, each of Ewing and Home Depot (each, an "Owner") shall be responsible only for the obligations, indemnities, duties, liabilities and responsibilities set forth in this Agreement that accrue during the period of time during which such Owner holds fee simple title to the Properties or portion thereof. Upon conveyance of the Properties or a portion thereof, the Owner making such conveyance shall be relieved from the obligations, duties, indemnities and responsibilities hereunder arising from and after the date of such conveyance as to such Property, or portion thereof conveyed, and the successor Owner shall become obligated hereunder for all matters arising from and after the date of conveyance. The rights privileges and easements granted and conveyed hereunder shall exist for the benefit of, 696158-4 1630.2170301 -6· ~o~ SHOPPING CENTER. REA PAGE 7 OF 17 and be a" burden upon, the Home Depot Property and the Ewing Property and shall run with title to, and be appurtenant to, such Properties. Section 4.06. Notices." All notices, requests, demands or other communications hereunder shall be in writing and shall be delivered by personal delivery, overnight mail or delivery service, facsimile (provided that a" copy thereof shall be sent concurrently to the intended recipient by one of the other methods provided herein), or United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows: !fto Ewing: Ewing Morristown, LLC 3495 Piedmont Road, Suite 135 Atlanta, Georgia" 30305 Attn: Mr. Andy Ewing Telephone Number: 404-467-6103 Facsimile Number: 404-467-6101 Fine and Block Attorneys 2060 Mount Paran Road, Suite 106 Atlanta, Georgia 30327 Attn: Bret L. Block, Esq. Telephone Number: 404-261-6800 Facsimile Number: 404-261-6960 Home Depot U.S.A., Inc. 2455 Paces Ferry Road Atlanta, Georgia 30339 Attention: Vice President - Real Estate Law Telephone Number: (770) 433-8211 Facsimile Number: (770) 384-3042 HD Store #744 Home Depot U.S.A., Inc." 2455 Paces Ferry Road Atlanta, Georgia 30339 Attention: Jeff A. Israel, Esq. Telephone Number: (770) 384-2908 Facsimile Number: (770) 384-3042 Hartman, Simons, Spielman & Wood LLP 6400 Powers Ferry Road; N.W., Suite 400 Atlanta, Georgia 30339 Attention: Gil Y. Burstiner, Esq. Telephone Number: 770-226-1339 Facsimile Number: 770-303-1115 with a copy to: If to Home Depot: with a copy to: and to: -7696151.... 1630.2170301 \£ ~", •.n ..U . u..I.l.&. n";, SHOPPING CENTER REA PAGE 8 OF 17 or to such other address as any party may from time to time designate by notice in writing to the other parties. Any such notice, request, demand or,communication shall be deemed to have been given on the date of mailing. The refusal to accept delivery by any party or the inability to deliver any communication because of a changed address of which no notice has been given in accordance with tIlis Section shall constitute delivery. Section 4.07. Remedies. III the event an Owner fails to perform the maintenance, repair or other work required by this Agreement, or fails to perform the work in accordance with the requirements of this Agreement, or otherwise breaches the terms of this Agreement, the nondefaulting Owner may notify the defaulting Owner and shall specify the deficiencies in the work or the breach. If such deficiencies are not corrected,. or the breacll not cured, within thirty (30) days after receipt of such notice, then such ngn-defaulting Owner shall have the right to correct such deficiencies or perform the work (even if such work must be undertaken on the defaulting Owner's Property) or cure the breach, and recover all actual costs and expenses related thereto from the defaulting Owner. Notwithstanding the foregoing, in the event that the failure to perfonn the work, or failure to perform the work in the manner required in this Agreement, or the breach of this Agreement, creates an imminent danger of damage to persons or properties, or jeopardizes the continuance of business operations on any Property, no notice shall be required prior to the non-defaulting Owner commencing such work or commencing a cure. Any monetary amounts due and payable to the non-defaulting Owner pursuant to this Agreement shall be paid within ten (10) days from the date the defaulting Owner is notified of the amounts due, and thereafter shall bear interest at the lesser of (a) the maximum rate allowed by law or (b)' fifteen percent (15%) per 3.lIDUm until payment is made. The failure to pay any amounts due pursuant to this Agreement shall not entitle such non-defaulting Owner to file a lien or claim of lien against the Property owned by the defaulting Owner. Section 4.08. Covenants Run With the Land. All the covenants, conditions, restrictions, easements, terms, and provisions hereof are and shall be deemed to be covenants nliming with the property described herein and shall burden and' benefit such property as desclibed herein and, with respect to such property, each Owner, the holders or owners of any mortgage, indenture, deed of trust or deed to secure debt encumbering any such property, any purchaser at a foreclosure sale, any other person or enti\}' a,cquiring any right, title or interest in such property, and their respective heirs, executors, administrators, representatives, successors . and assigns. Section 4.09. Continuation Notwithstanding Breach. It is expressly agreed that no breach 'bf this Agreement shall entitle any party hereto to cancel, rescind or otherwise tenninate this Agreement. Such limitation, however, shall not affect in any maImer any other rights or remedies which such party may have hereunder by reason of such breach. Section 4.10. Entire Agreement. This Agreement and the exhibits attached hereto contain the entire agreement between the parties hereto with respect to the subject matter hereof. Ally prior correspondence, memoranda or agreements are superseded ,in total by tllis Agreement and exhibits hereto. ' 6961 S3-4 1630.2170301 - 8- ~ SHOPPING CENTER. REA PAGE90F 17 Section .4.11. Coustruction. The provisions of this Agreement shall be construed as a whole according to their common meaning and not strictly fat or against any party hereto. Section 4.12. Governing Law. This Agreement shall be construed in accordance with the laws of the State in which the Properties are located, without regard to conflicts laws or choice oflaw rules thereof. Section 4.13. Estoppel Certificates. Upon the request of any party hereto, the ot)ler parties shall issue to any party designated by the requesting party an appropriate certificate certifying whether the party to whom the request is made knows of any· default under this Agreement or of any assignment, modification or amendment to this Agreement (and the nature and extent of any such default or other known matter) and whether, to that party's knowledge, this Agreement is in full force and effect. The certificate may be relied upon by a bona fide encumbrancer or purchaser for value without knowledge of facts to the contrary and shall constitute a waiver of any claim by the certifying party based upon facts contrary to the certificate of which that party had knowledge at the time of making the certificate. The certificate shall not subject the party furnishing the certificate to any liability for any inaccurate statement which such party in good faith believed was correct when made or any obligation to correct or disclose any change in the information certified. Section 4.14. Counterparts. This Agreement may be executed in any uumber of counterparts, each of which shall be deemed an original, ane;! all of which, when taken together, shall constitute one and the same document. [The remainder of this page is intentionally left blank.] . 6961$1-4 1630.2 (70)01 - 9- \.0. . EXHIBIT "A-2" SHOPPING CENTER REA PAGE 10 OF 17 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. EWING MORRISTOWN, LLC, Georgia limited liability company . By: a Ewing Southeast Realty, LLC, a Georgia limited liability company, its Manager . By: Name: Morris Ewing, Jr., its Vice President fYI "'- C ~ JJ STATEOF~ COUNTYOF~ PERSONALLY appeared before me, :::, I a Notary Public in and for said County and State, w, with whom I am personally ·acquainted (or proved to·me on the basis of satisfactory vidence), and who upon oath, acknowledged such person to be Vice President.ofEWING SOUTHEAST REALTY,LLC, a Georgia limited liability company, which entity is the manager of Ewing Morristown, LLC, a Georgia limited liability company, who acknowledged that he(she) executed the foregoing instrument for the purposes therein contained on behalf of Ewing Southeast Realty, LLC, in his capacity as Vice President ofsaid entity, which entity is the manager of Ewing Morristown, LLC. WTPNESS my hand, at office this 31$"day of -.M;vl '{. I,~ 4.f:::J~ , My CbmnllsslOn Exptres: ... -: ::.\ f'. _*_ .:- ,~ l-,y =~!~ OCT -:; ....".... .,:.. ~ ••_'\5810/ol~. I<' -:.. ~ ,"'.-..t,l'~"i. . ,,\\111111'", I'l. !uocEi ,2004~ oS/'" .-;.. <./. . -t. -;. :23 .*_ 2005:: ~\ ~.~~= ~ .. . . .,"II, )II'/Y 1'0 "", "'/1111\'" ~v.;%i~. ~.., O~···_·· ~v ~ .,!/ [NOTARY SEAL] - 10· 696158·4 1630,2110301 ~ :SHUPPlNU CENTER REA PAGE 11 OF 17 Delaware corp~J#;Y By: Name: Title: HOME DEPO .A., INC., a fJ'dllflJ;,{ / \ R . :> STATE OF GEORGIA COUNTY OF COBB ...J . a PERSONALLY appeared before. me, Notaly Public in and for said County and State, with whom I am personally acquainted (or proved to me on the basis of satisfacto evidence), and who upon. oath, acknowledged such person to be.$' 1r "L of HOME DEPOT \l.S.A., INC., a Delaware corporation, who acknowledged that be( executed the foregoing instrument for the purposes therein contained on behalf of the corporation in his capacity as .\r 'O,'w:/a r t:r(. . (herr WITNESS my hand, aJ,off~this 4 day of IIfd'J.I / .2004. My Commission Expires:, _ ~] 695 15!~1 1630,2170]0 I - 11 - ~ SHOPPING CENTER REA PAGE 12 OF 17 nt't"'J'I.,"u·.~t·.:J EXHIBIT "A" (Ewing Parking Easement Area) IIPm'lmIiIUllllll! "I 11111·r 'iii .' ,I 'I • "Il HW··"i ~ ., 'II : e~ ,.;i'sJC"rr'" ------ lI' 11~1 'k': ~-~\ ',:l~ Il::ll: ~.. - = \ 11'::5; %'--' ,! ~ --.-----_..--... '1'1', 11 '"1111111 '11111 I I, Ii I Ilie I I,I ! ! , I tl 1ilH~m l!lli'lllll' l;fl fJi,li! q liJ!llllJ I :t1,:l\lJ I~ ~ I flElll. Il,/nn ,- ~Iill, iii 1I "fi'ii "1 1°' "; I un!"1 \IWli tl: A~­ i~ 1i.lli I! 1%!: I .' IfI! 11 ... "" .'" .~ .:lIIt:::III.E!I~1ii1· i !jHl!W !I!:;'lj 'ill!l:j "" toJ = rIII I! Hg l"PIII HI 'gHii " I: ~i i.= ~ ~::::--'''' ....:::.. l---~l-·.. ~ ... ...... -;, -----_ ..........:-... I - 1......... - ------_.. ...... ~ t': _ 1:. {~ .------<.. - - - - - _.. p Iii I !. 1,1 Iii ,~Kit c l:§=!ii.a~~? '1_:..:·:<1 i ~~. q-i I~: ~ 1\0 h it; :S[l}_~£!.i'" ~ .. r & I l _ I ' i! (j --'II ------_ .. --------------------;1: ,yo; 1'\ ~ t;j~! '" ... ~ ~ /.'. ::'r;:.t,..-:-:::: • I ._.. \, '0\ .•-~\.. " ~ ':"" I "I '" ~ f ih -' I*",.. • - '/1; ° .". 1Tf~A"f:~~'" . .p.~' ~ \ ..,~~"~" ~ ..\. ... ,' '0. ..,., .. ~.". ,\ ·12· 696158-4 16)0,2170)0] \~ SHOPPING CENTER REA PAGE 13 OF 17 J~t'r"111·"-rU·'U·' :a , EXHIBIT uB" . (Access Easement Area) 'II 1lIInl'lmll'lllllfl'! '!Ir"r 1:li i! " ,I i I 'IIII'll :1,'\1: jl'!'ll, I' ! ~ 1illHllll I~ 1ll:lfIll llt!!l if 'llirllill .I 1,nj"l, 'II l 'IJlijJ ll,ill~ il,l:a: II! i~i!1 !i r·fJ.ll· 1 ' liilll ...... jl rr I ' 1l,Hlj "I ,. I1/1", ' ,I IHHffiHttr: fi1 !I1llj11111111 ~ll\ ltv, I ; I 1.\\1 1: 1 Fl:! II 11~li 1lilHHIJ ,!I':11l1 i.. .III i;& th!~ ~ ~ ~" ""' {+ {+ ~ ..... . . ..-* a . --.....,. _~a.l;c· il' 'I' J . .[1~ llml!!!i iib!!:l 1 '\!:1 '1 -.;;;- ::: ... !l{ ~!~ l~ ................. ~~~~l~~ :::.~t: Ifljlll! Jnt t~ ~ . . .:::.:-...... .. " ------ -- _ . <.----- II~ .. ------- ., it: I;! '1:lc"l"2b 10 ,",cso-ij' II' ." ~ I".,.!', i e II' hi ~~ 111"'l\oi~ ii'1t? J ... ).: f"w ",. I: '" ~ 'u ~ .. ~ ~ '5 f tt ~!l ------------------------":'--: • • 'I i ~I E I ~ ~~~t~ 'It I., n... ~ '" - 13 6\16151--4 1630.2170301 \'£t · --... . 0- --_ · --== == - --...-- --_ · ---! '==, -t~\I • I ~~"l I I I I I I I I I I I I I -- 1·- ' ~ I I I I • I I , I I I I ; , ,I:::. .. I I I I I .~. I § , I I I I lot JoB \ \ ,m l:i I .-< t- I &:: I I~~ < Po< U .-< '_r ........... _. __ =.:-.::;-....:;. II _ . . . : : . _. --;;::;::; ......... !!!fire:; -- -:!l;;..=: f!!;;;;:::'':~: ~-_::.?_::~_.. - __-_"_00------- ====- ----::;. .... FJrw/ Plat of: Morrlst~ Pial, StMMslorl (Rep/a! olLoi J) Tor Horn. Depot USA.• he UND SU/t~Y1NC ------._fl_. ~.-:--"" MSP &- ASSOCIATES ..._ _-....oc_ ---... _~ =-_:o':,,:;::~--=- _",._,,,,_"la .. __ ... - .. INC. d • V> I , . """""~~ ...... .IL-"'" SHOPPING CENTER REA PAGE 16 OF 17 EXHIBIT "E" (Signage Criteria) A. Each sign will be individually leltered, internally Illuminated and mounted on an electrical raceway. Individually lighted lelters shall be centered on the raceway. ' Sign to be centered in space allocated for sign, The raceway shall be the color of the building. The returns or sides of the lelters shall be duronic dark bronze or other similar color. The fascia shall be opaque plastic; provided no loud, outrageous or trendy colors shall be permitted, and shall not be the same color as any adjacent sign. The depth of letters shall not exceed four Inches. No unusual styles of lelterlng shall be permitted. Overall sign length sl1all not exceed 70% of the width of the respective tenant space in Ihe building localed on the Ewing Property. Actual sign area shall conform to the City of Morristown Siandards. If the width of the tenant space is 20 feet wide the sign may not exceed fourleen (14) feet in length. The heighl of the leltering of signs are as follows: B. C. i. On tenant ,spaces that are twenty feet in height in width, the overall heigh I of the sign shall not eliceed 24 Inches for a single row sign and 30 inches for a double row sign. On double row signs the letter height of the main row may not exceed 18 inches, and the letters for the secondary row may not exceed eight (8) inches in height. . On tenant spaces exceeding twenty feet in width, the overall height on the main line of the sign the capitol letters may not exceed thirty inches, the other letters of that row may not exceed twenty four (24) Inches. Secondary row letters may not exceed eight (8) inches In height. The overall area of the exterior sign, may not exceed ten (10) percent of the tenant's storefront. The height of the buildings are twenty (20) feet. A twenty foot store may not exceed forty (40) square feet of area. if: iii: D. Electrical raceways shall be seven (7) inches wide and eight (8) Inches high and made of .090 gauge aluminum (minimum). All internal bracing and/or supports shall be aluminum. All raceways shall be painted the color of the building. - 16696158-4 1630,2110301 ~ hXH1.l:IIT "A" SITE PLAN Page 1 of1 Exhibit A _ .. _.......-:--0 ," ,0.t - . ., Oi;, .'J , L.~~ I CROSS ESMT. FOR PARKING (35 SPACES) ACCESS'ESMT/ ARE!- . .. :::..... vnrl·:t I mm liltI II I I I ~ I I o t ~ I g I I tl I I iii , I .I , i' · I · • , ._ I _ I~ _ ~VEm!G ...~. ~. . '.'.w." . ' ..•.,.".",."';. I.'." ... " "." <... • ____ " .., .......':. ~",."I~lol \ V "\. _______ & ASSOClATE "1 "Nt> ,'. '" L S " .... ,!NC.! :... , . ...::: . .. L:.'::'" ::~ . _...'-' I • • • • I- • • • _ .. .; . .. ....... I I I I I ~ ' . I . ·1 __ :..... - ':.. ... . Wff- ANDREW JOHNSON HWY. sr __ - . i ,., . . I -lI I I \~ j > ~ \&.J ~ ; ""* t\ ::> . .1, SkI. ~ ~I , ~~ ./\ -' /.), ---r I ... -~~ .~ -0- ~~ II ~ .~ ( ) - 'E;:' <::> --l T .....3... ...r .A .-'1 :~. <::::> Q ".. , , ;, , \ \I /', , . /~ ",<7 ,/ ') /.' IN . .,..:.... . . ':J <9 """ P \ \ ( ? -p ~ c=:> 0 ; !i I!' a: !II 0 z f1l 0 z 1= 0 :J Z "" Ii' F ? <>