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RES 2011-0307 - Addition of sidewalk café to Twin Peaks ,04µs`srgr , 1 RECEIVED �' _ ~ STATE OF NEBRASKA ' NEBRASKA LIQUOR CONTROL COMMISSION yt�:!�'�,;'��%! yak� Dave Heineman I I MAR © B tyM\, Governor P1 A R - � 9: 00 Hobert B. Rupe it\\Ai9A cil` 86�= Executive Director 301 Centennial Mall South, 5th Floor CITY CL-7Rf, P.O.Box 95046 Lincoln,Nebraska 68509-5046 C M Q,H A, N F a P,G c it ll Phone(402)471-2571 Fax(402)471-2814 February 28, 2011 TRS USER 800 833-7352(TTY) web address:http://www.lcc.ne.gov/ City Clerk of Omaha 1819 Farnam LC1 Omaha, NE 68183 RE: Addition/Reconstruction to Premise for License Class 176079 Dear Clerk: The licensee Old Market Ventures LLC DBA Twin Peaks located at 17330 W Center Road, Omaha, NE 68130 (Douglas County) has requested an addition to premise/reconstruction. (See Attached Diagram). The description for the new license will be read as follows unless changed by State Patrol: One story building approx 80 x 80 including sidewalk cafe approx 15 x 45. Please review the enclosed description diagram and present this reconstruction to premise request to the Council for consideration and return the results to the Nebraska Liquor Control'Commission office. If you should have any questions, please feel free to give me a call at (402) 471-4881. Sincerely, a 6Ie Jackie B. Matulka Licensing Division Enclosure pc: File • Janice M.Wiebusch Bob Logsdon Robert Batt Commissioner Chairman Commissoner An Equal Opportunity/Affirmative Action Employer Printed with soy ink on recycled paper LICENSE TO ANY SCHOOL,CHURCH,OR CITY PARK: b 4" DISTANCE OF PROPOSED LICENSE TO ANY EXISTING LICENSE: bJ (State Law) DISTANCE OF PROPOSED LICENSE TO ANY CHURCH d'.4. SCHOOL /9 t'L—.,HOSPITAL ©'C--HOME FOR THE AGED,INDIGENT OR VETERANS 6 COLLEGE OR UNIVERSITY G -' J J ICE- (Authorized Signature) (Date) n er W " .Daniel G. Pankow Chief Finatc►al Officer President & CEO . . • .' • . . . . .. . , ,. • . . • \I\ CD • 0 .. . . . . \ . . . -I • . . 1 . . .CO • . " • .. .... . . . . . . • . .. .. .•• - . I- - • • • . - . . . . . . .. . . . . . . . ... .. . . . (.1) • . . . . . . . . . . . . . • X, . . . . . . ....------>4:‘ • . I LI]. ' • . . , . . . . \ .. . . . . . . .\ <,.:.7 7:• .1 CI . • . . , . . . 11,. . . . . . - • . 1 . . . , . . . . . • . . . 1 . LIQUOR LICENSED ESTABLISHMENT HISTORY LICENSE #I 76079 OLD MARKET VENTURES, LLC 17330 WEST CENTER ROAD :68130 333-8001 DBA TWIN PEAKS MAIL: 13305 BIRCH DRIVE#201 68164 NLCC ORDERS 01-13-11 -TRADE NAME CHANGED FROM FAMOUS DAVE'S * OTHER ACTIVITIES 04-03-07 -TRANSFER FROM BBQ VENTURES OF NEBRASKA, L.L.C., CLASS "C/K"* RES #398 GRANT*03-22-11 -REQ ADD OF A SIDEWALK CAFE APPROX 15'X 45' TO THE NORTH * LICENSED PREMISES 1 STY BLDG APPROX 80' X 80' OFFICERS: MEMBER/MGR-GREGORY(MOLLY) CUTCHALL, 7303 NORTH 151ST CIR, BENNINGTON NE 68007 (H)402-965-4135 * CORP ADDRESS & PHONE#-13305 BIRCH DRIVE#201, 68164 #558-3333 � G BY: CARMAN JOHNSON, LIQUOR CLERK APPLICATION FOR ADDITION TO LIQUOR LICENSE Office Use RECEIVED NEBRASKA LIQUOR CONTROL COMMISSION 301 CENTENNIAL MALL SOUTH FEB 2 4 2011 PO BOX 95046 LINCOLN,NE 68509-5046 PHONE:(402)471-2571 FAX:(402)471-2814 NEBRASKALIQUOP Website www.lcc.ne.eov CONTROL COMRAISRIn Application: • Must include processing fee of$45.00 made aityable to Nebraska Liquor Control Commission • Must include a copy of the lease or deed showing ownership of area to be added • o This is still required even if it's the same as on file with our office • Must include simple sketch showing existing licensed area and area to be added,must include outside dimensions in feet(not square feet),direction north. No blue prints. • May include a letter of explanation 76079- LIQUOR LICENSE# Old Market Ventures,LLC LICENSEE NAME TRADE NAME I17330 West Center Rd. PREMISE ADDRESS _ O CITYmaha...-_.-._........ ....... _-__._ __._..• __ _._--__.._ ..- ��_- _ Bill Nervig CONTACT PERSON __ -------------- 402-558-3333 ext 16 PHONE NUMBER OF CONTACT PERSON .-_ Complete the following questions: 1) Are you adding on to your building? L Yes ® No • Include a sketch of the area to be added showing: o existing building o outside dimensions(in feet) o direction north 2 Are you addingan outdoor area? I Yes ® No If an outdoor area(check one of the following) 0 012.07"Beer garden"shall mean an outdoor area included in licensed premises,which is used for the service and consumption of alcoholic liquors,and which is contained by a fence or wall preventing the uncontrolled entrance or exit of persons from the premises,and preventing the passing of alcoholic liquors to persons outside the premises. (examples may include,but are not restricted to sand volleyball,horseshoe pits...) C V a OZ -j I • E. 1100002233 CE- (Authorized Signature) (Date) n er W " .Daniel G. Pankow Chief Finatc►al Officer President & CEO . . • .' • . . . . .. . , ,. • . . • \I\ CD • 0 .. . . . . \ . . . -I • . . 1 . . .CO • . " • .. .... . . . . . . • . .. .. .•• - . I- - • • • . - . . . . . . .. . . . . . . . ... .. . . . (.1) • . . . . . . . . . . . . . • X, . . . . . . ....------>4:‘ • . I LI]. ' • . . , . . . . \ .. . . . . . . .\ <,.:.7 7:• .1 CI . • . . , . . . 11,. . . . . . - • . 1 . . . , . . . . . • . . . 1 . G W o v. W � 1 ar c ., c (A(? 0£189 3Nr 6ynw40 Cr co Le ¢' p� .•at'"a) 1 f" OE LI Cr - 1m 1-Z0 51/bad NIM1 /"id 4j'�aON plop D vi. bJ.111. }<X X J'Il' son fuan 1.JVti14 p10 a D = Nb'1d 100.1: OD S- I[ ee,Ih___r I!!®II r Ii 111 I Jr It1 Ai ' �� .10 ° e O 0 : : femur I.mo) i rN311011)1 x3 N' NI is PI ° >] II. 111 In el 1 '1 11E1111111 °ti. ,1E_ J - � _ I 00 00 � �, iU 4J� ° I 0© ©n lrol I C1�! Ll Cl ] z © n n ;, o7,1 'Liz co , © If='�0 O'� 9 Q0 O ®, 411 piyilH ��:,iiIIIIIIIIIIIIUI It s ar .i '� �Pig' . 'In ® ® ® � , 1♦ ■ f0 . 1 w�.L9M \ 1 DE I [ =A= A.' i 7 +•°+17 1411E i�Ei c_� V 11 - wooe1.93S fe1 .. w L �!�..:Agxt dNh1S iij` I\� 4 \q q/ \q p/ r ♦ Tsai MEIN I O� 1 141P ' ♦ I:F.' • mR1M^d /q �\ '. \ /q �S O Vr,'°` 4% h 1 t 31(IBI s xa IJ "' I _or unapt �aiiiiiI■ itilii nia[ii .`;;iii r:�i liiilli TII* II, li,r - P9V4 Ol 1111:1177b Warn 11111 .' 2100C1�116DC3 3�AYt�V21J3zi H�11 „ •••4V031V3A0 H91H , I■ ■I is ■I i■ ... ■II■ ■I � u� �I '� 0 1 0 '1 Wig. . �- . lio' oar-I .. r it Iii ®I Im m I� , io iI 1;; I mom.i��II 1, NI, i 4lII��H!lila it I!l mi llbl all f .• I__�1 a:�_lar illy L tiP"4c72 Y •x �1J`9-x -9`FX' x`t • ' - - . sh 9 .. . , ,. • . . • \I\ CD • 0 .. . . . . \ . . . -I • . . 1 . . .CO • . " • .. .... . . . . . . • . .. .. .•• - . I- - • • • . - . . . . . . .. . . . . . . . ... .. . . . (.1) • . . . . . . . . . . . . . • X, . . . . . . ....------>4:‘ • . I LI]. ' • . . , . . . . \ .. . . . . . . .\ <,.:.7 7:• .1 CI . • . . , . . . 11,. . . . . . - • . 1 . . . , . . . . . • . . . 1 . 0 012.08"Sidewalk cafe"shall mean an outdoor area included in licensed premises,which is used by a restaurant or hotel with a restaurant license,for the service of meals as well as alcoholic liquors,and which is contained by a permanent fence,wall,railing,rope or chain,defining the licensed area,provided that one open entrance not to exceed eight(8)feet shall be allowed. • What type of permanent fencing will you be using? Cyprus railing wall 4'tall with 2-36'gates . 1---- — _ __-- .---,--- _....---.`, r-- -c. . . : • Include a,sketch of the area to be added showing: • o existing building RECE \IFi . o outside dimensions(in feet) o direction north FEB 242011 NEBRRSKI L%QLu • • CONTRO1 .+r"'" G t e5 C'�-I-c rc 11 Print Name of Signature , \\I 14,.\\ , . Signature o Licensee or Officer • State of Nebraska • County of D(L9 (Q V The forgoing instrument was acknowledge before me this t-2•--2 3—I ) Date 1 u Pblic si a re ry gn to Affix Seat DIANE TNOMSEN Gonaat Notary Nate of Nebraska My Contmltton Explr♦s Rob 21. 2012 • 2 V 11 - wooe1.93S fe1 .. w L �!�..:Agxt dNh1S iij` I\� 4 \q q/ \q p/ r ♦ Tsai MEIN I O� 1 141P ' ♦ I:F.' • mR1M^d /q �\ '. \ /q �S O Vr,'°` 4% h 1 t 31(IBI s xa IJ "' I _or unapt �aiiiiiI■ itilii nia[ii .`;;iii r:�i liiilli TII* II, li,r - P9V4 Ol 1111:1177b Warn 11111 .' 2100C1�116DC3 3�AYt�V21J3zi H�11 „ •••4V031V3A0 H91H , I■ ■I is ■I i■ ... ■II■ ■I � u� �I '� 0 1 0 '1 Wig. . �- . lio' oar-I .. r it Iii ®I Im m I� , io iI 1;; I mom.i��II 1, NI, i 4lII��H!lila it I!l mi llbl all f .• I__�1 a:�_lar illy L tiP"4c72 Y •x �1J`9-x -9`FX' x`t • ' - - . sh 9 .. . , ,. • . . • \I\ CD • 0 .. . . . . \ . . . -I • . . 1 . . .CO • . " • .. .... . . . . . . • . .. .. .•• - . I- - • • • . - . . . . . . .. . . . . . . . ... .. . . . (.1) • . . . . . . . . . . . . . • X, . . . . . . ....------>4:‘ • . I LI]. ' • . . , . . . . \ .. . . . . . . .\ <,.:.7 7:• .1 CI . • . . , . . . 11,. . . . . . - • . 1 . . . , . . . . . • . . . 1 . RECEIVED APPENDIX B FEB 24 2011 FOURTHADDENDUM TO LEASE NEBRASKALIQUOt' CONTRO, COMM ' 'IRRp This Fourth Addendum to Lease,dated January 25,2011 is entered into between Lakeside Plaza,L.P.,a Nebraska limited partnership,("Owner"),and Old Market Ventures,LLC,successor in interest to BBQ Ventures of Nebraska,LLC,a Nebraska limited liability company,d/b/a Famous Dave's Restaurant("Tenant"). RECITALS A. On the 7"'of April,2010,the parties entered into a Third Addendum to Lease pursuant to a Second Addendum to Lease dated the 3' day of February,2009,pursuant to an Addendum to Lease dated the 3111 day of December, 2001, pursuant to a certain Indenture of Lease dated September 15, 2600("Lease")with respect to premises therein described situated In Lakeside Plaza in the City of Omaha,Douglas County, Nebraska to which this Addendum is attached and incorporated as a part thereof(the"Premises"). B. Owner acknowledges that Tenant has agreed to operate a Restaurant at the Premises pursuant to Tenant's Franchise Agreement (the "Franchise Agreement") with Twin Restaurant Franchise, LLC("TRF") under the name"Twin Peaks"or other name designated by TRF(the"Restaurant"). C. The parties desire to amend the Lease In accordance with the terms and conditions contained in this Addendum to provide TRF the opportunity to preserve the Premises as a Twin Peaks branded restaurant as provided herein. AGREEMENT Owner and Tenant agree as follows: '. 1. Remodeling and Decor. Owner agrees that Tenant has the right to remodel, equip, paint and decorate the interior of the Premises, provided the modifications are non-structural, and to display such proprietary marks and signs on the interior of the Premises as Tenant is reasonably required to do pursuant to the Franchise Agreement and any successor Franchise Agreement under which Tenant may operate a Restaurant on the Premises. Any remodel of the building and/or its signs shall be subject to Owner's prior and reasonable approval. The sign requires city and association approval. 2. Assignment. Tenant does not have the right to sublease or assign the Lease to any third party r� without TRF's and Owner's written approval. Tenant has the right to assign all of its right, title and interest in the Lease to TRF, its affiliates or its parent company, at any time during the term of the Lease, including any extensions or renewals, without first obtaining Owner's consent. No assignment will be effective, however, until TRF or its designated affiliate gives Owner written notice of its acceptance of the assignment. TRF or its parent company will be responsible for the lease obligations under the Lease. If TRF elects to assume the Lease under this subparagraph or unilaterally assumes the lease as provided for in subparagraph 3(a) or 4(a), Owner and Tenant agree that (i) Tenant will remain liable for the responsibilities and obligations, including amounts owed to Owner, prior to the date of assignment and assumption, and (ii)TRF will have the right to sublease the Premises to another franchisee with Owner's prior approval based on proposed new franchisee's related business experience, net worth, assets and credit history,and . . . . .\ <,.:.7 7:• .1 CI . • . . , . . . 11,. . . . . . - • . 1 . . . , . . . . . • . . . 1 . FEB 24 2011 NESRASKALiQUOFi "ONTRni f',nnAmIcR1(ik any other criteria Owner uses to underwrite tenants, provided the franchisee meets TRF's then-current standards and requirements for franchisees and agrees to operate the Restaurant as a Twin Peaks restaurant pursuant to a Franchise Agreement with TRF. Upon receipt by Owner of an assumption agreement satisfactory to Owner pursuant to which the assignee agrees to assume the Lease and to observe the terms, conditions and agreements on the part of Tenant to be performed under the Lease, the TRF Entity(defined below) shall thereupon be released from all liability as tenant under the Lease from and after the date of assignment. 3. Default and Notice. (a) Owner shall send TRF copies of all notices of default it gives to Tenant concurrently with • giving such notices to Tenant. If Tenant fails to cure any defaults within the period • specified in the Lease, Owner shall promptly give TRF written notice thereof, specifying the defaults Tenant has failed to cure. TRF has the right to unilaterally assume the Lease if Tenant fails to cure. TRF shall have 15 days from the date TRF receives such notice to exercise, by written notice to Owner and Tenant, its right for TRF or its designee (the "TRF Entity") to assume the Lease, TRF shall have an additional 15 days from the expiration of Tenant's cure period in which to cure the default or violation. (b) All notices to TRF must be sent by registered or certified mail, postage prepaid, to the following address: Twin Restaurant Franchise, LLC 4803 Broadway Street Addison,Texas 75001 Attention: President Telephone: (972)941-3150 Facsimile: (972) 385-8700 Electronic Mail: randy.dewitt@jfbrest.com TRF may change its address for receiving notices by giving Owner written notice of the new address. Owner agrees that it will notify both Tenant and TRF of any change in Owner's mailing address to which notices should be sent. 4. Termination,Non-Renewal, Expiration, (a) If the Franchise Agreement is terminated for any reason during the term of the Lease or any extension thereof, TRF has the right, but not the obligation, to unilaterally assume the Lease by giving Owner written notice. Within 30 days after receipt of such notice, Owner shall give a TRF Entity written notice specifying any defaults of Tenant under the Lease. (b) If the Lease contains term renewal or extension right(s) and if Tenant allows the term to expire without exercising said right(s), Owner shall give TRF written notice thereof, and a TRF Entity shall have the option, for thirty (30) days after receipt of said notice, to exercise the Tenant's renewal or extension right(s) on the same terms and conditions as are contained in the Lease. If a TRF Entity elects to exercise such right(s), it shall so notify Owner in writing,whereupon Owner and the TRF Entity shall promptly execute and deliver an agreement whereby the TRF Entity assumes the Lease, effective at the commencement of the extension or renewal term, (c) Upon the expiration or termination of the Lease, Owner will cooperate with and assist TRF in gaining possession of the Premises and If a TRF Entity does not elect to enter into a • . . , . . . 11,. . . . . . - • . 1 . . . , . . . . . • . . . 1 . new lease for the Premises with Owner on terms reasonably acceptable to the TRF Entity, Owner will allow TRF to enter the Premises, without being guilty of trespass and without incurring any liability to Owner, except for any damages caused by TRF, to remove all signs,awnings, and all other items identifying the Premises as a Twin Peaks®Restaurant and to make such other modifications(such as repainting)as are reasonably necessary to protect the Twin Peaks® marks and system. In the event TRF exercises its option to purchase assets of Tenant, Owner must permit TRF to remove all such assets being purchased by TRF. Provided, however, Owner may give TRF written notice that any removal or alteration pursuant to this section must be completed within ten (10) days. In the event TFR has not completed such removal or alteration within ten(10)days of such written notice TRF waives such right. 5. Additional Provisions. (a) Owner hereby acknowledges that the provisions of this Addendum to Lease are required pursuant to the Franchise Agreement under which Tenant plans to operate its business and the Tenant would not lease the Premises without this Addendum. (b) Owner further acknowledges that Tenant is not an agent or employee of TRF and the Tenant has no authority or power to act for, or to create any liability on behalf of,or to in any way bind TRF or any affiliate of TRF, and that Owner has entered into this Addendum to Lease with full understanding that It creates no duties, obligations or liabilities of or against TRF or any affiliate of TRF, unless and until the Lease is assigned to, and accepted in writing by,TRF or its parent company. (c) TRF Entity may elect not to assume or be bound by the terms of any amendment to the Lease executed by Tenant without obtaining TRF's prior written approval, which shall not be unreasonably withheld or delayed. 6. Sales Reports.If requested by TRF, Owner will provide TRF with whatever information Owner has regarding Tenant's sales from the Restaurant. 7. Modification. No amendment or variation of the terms of this Addendum is valid unless made in writing and signed by the parties and the parties have obtained the written consent of TRF. B. Reaffirmation of Lease. Except as amended or modified in this Addendum, all of the terms, conditions and covenants of the Lease remain in frill force and effect and are incorporated by reference and made a part of this Addendum as though copied herein in full. In the event of any conflict between the terms of this Addendum and those in.the Lease, the terms of this Addendum shall control. 9. Permitted Use. Section 6.01 of the Lease shall be amended to reflect a change from "a full service Famous Dave's Barbeque Restaurant with the incidental sale of alcoholic beverages for on premises consumption (sales not to exceed 40% of total sales" to "a full service Twin Peaks Restaurant with the incidental sale of alcoholic beverages for on premises consumption (sales not to exceed 40%of total sales". 10. Owner's Prior Approval. Tenant will obtain Owner's prior written approval for any changes to the permitted use, improvements, signage and name. 11. penefidary. Owner and Tenant expressly agree that TRF is a third party beneficiary of this Addendum. oes not elect to enter into a • . . , . . . 11,. . . . . . - • . 1 . . . , . . . . . • . . . 1 . IN WITNESS WHEREOF, the parties have executed this Addendum as of the dates written below. Attest: LAKESIDE PLAZA,L.P.,a Nebraska limited Partnership By: Lakeside Plaza,Inc.,a Nebraska oration, General Partner - (r/D- BY: By: . Witness: Old Market Ventures,LLC,a Nebraska Limited liability company,d/b/a Fam s Dave's Restaurant By: *NONA/ (6 By, Its: M 4. Federal Tax ID: 0 f"' 0 7 LI S 9 5 3 03 NORTH 151ST CIR, BENNINGTON NE 68007 (H)402-965-4135 * CORP ADDRESS & PHONE#-13305 BIRCH DRIVE#201, 68164 #558-3333 � G BY: CARMAN JOHNSON, LIQUOR CLERK RECEfl/ 1 FEB 2 4 2011 NEBRASKA LiUUL CON T Onr evmois•,- STATE OF NEBRASKA ) )ss. COUNTY OF DOUGLAS ) _F9pDRE ME th der/signed Notary Public in and for said coun ersonaily app re l2Pr-r- r/f,L ,to me known to be a ,0llv//L /" of Lakeside Plaza, Inc., a Nebrkska corporation and general partner to Lakeside Plaza, L.P., and whose signature is affixed to the foregoing Addendum to Lease as Owner,and being first duly sworn acknowledged execution of the same to be his voluntary act and deed and the voluntary act and deed of said partnership. Dated this 1 day of r�%i"/l2�'�/�/ ,2011. . . Notary Pubic My Commission expires: /--2414 j GENERAL NOTARY-State of Nebraska -�:F - My COMM.E USAN A. Deo 2KETT STATE OF NEBRASKA ) )ss. • COUNTY OF DOUGLAS ) BEFORE ME the undersigned Notary Public in and for said county personally appeared Greg Cutchall to me known to be a Manager of Old Market Ventures, LLC, a Nebraska limited liability company,and whose signature Is affixed to the foregoing Addendum to Lease as Tenant,and being first duly sworn acknowledged execution of the same to be his voluntary act and deed and the voluntary act and deed of said company. Dated this 2g ,day of r ,2011. -/f SI_a W///UWS t lNotary Public My Commission expires: 12 �'U/2 GENERAL NOY State of ressicawmcTAR owsev Nebraska �, My Comm.Ems•12/SW12 in writing by,TRF or its parent company. (c) TRF Entity may elect not to assume or be bound by the terms of any amendment to the Lease executed by Tenant without obtaining TRF's prior written approval, which shall not be unreasonably withheld or delayed. 6. Sales Reports.If requested by TRF, Owner will provide TRF with whatever information Owner has regarding Tenant's sales from the Restaurant. 7. Modification. No amendment or variation of the terms of this Addendum is valid unless made in writing and signed by the parties and the parties have obtained the written consent of TRF. B. Reaffirmation of Lease. Except as amended or modified in this Addendum, all of the terms, conditions and covenants of the Lease remain in frill force and effect and are incorporated by reference and made a part of this Addendum as though copied herein in full. In the event of any conflict between the terms of this Addendum and those in.the Lease, the terms of this Addendum shall control. 9. Permitted Use. Section 6.01 of the Lease shall be amended to reflect a change from "a full service Famous Dave's Barbeque Restaurant with the incidental sale of alcoholic beverages for on premises consumption (sales not to exceed 40% of total sales" to "a full service Twin Peaks Restaurant with the incidental sale of alcoholic beverages for on premises consumption (sales not to exceed 40%of total sales". 10. Owner's Prior Approval. Tenant will obtain Owner's prior written approval for any changes to the permitted use, improvements, signage and name. 11. penefidary. Owner and Tenant expressly agree that TRF is a third party beneficiary of this Addendum. oes not elect to enter into a • . . , . . . 11,. . . . . . - • . 1 . . . , . . . . . • . . . 1 . MIRD ADDENDUM TO LEASE „A April, THIS THIRD ADDENDUM TO LEASE Is entered into this j day of Mom,2010,by and between Lakeside Plaza, LP.,a Nebraska limited partnership,as Owner and Old Market Ventures,LLC,successor in interest to BBQ Ventures of Nebraska, LLC,a Nebraska limited liability company,d/b/a Famous Dave's Restaurant, as Tenant. WHEREAS heretofore on the 3rd day of February, 2009 the parties entered Into a Second Addendum to Lease, pursuant to an Addendum to Lease dated the 3" day of December,2001, pursuant to a certain Indenture of Lease dated September 15,2000("Lease")with respect to premises therein described situated in Lakeside Plaza in the City of Omaha, Douglas County, Nebraska to which this Addendum Is attached and Incorporated as a part thereof;and WHEREAS, the said parties desire and intend to adopt certain modifications and alternatives to said original Indenture of Lease as more particularly set forth below; NOW, THEREFORE, for and In consideration of the monies hereinafter provided for to be paid, the mutual covenants hereinafter undertaken,the monies provided for to be paid in said original Indenture of Lease,the sufficiency of which consideration is by the said parties hereby acknowledged,the said parties hereby and herewith adopt the following as Addenda to the said original Indenture of Lease. The following terms and conditions shall commence April 1, 2010 and shall be In full force and effect for the remainder of the term defined herein. I. Section 1.03 Commencement and Ending Date of Term shall be amended to reflect a five(5)year and nine (9)month extension(In lieu of Tenant exercising Tenant's option to renew)of the original Lease Term commencing April 1, 2010 and ending March 31,2016. IX. Section 2.01 Minimum Rent shall be amended to reflect a change in the Minimum Rents,to wit: (a) the sum of$8,000.00 in advance upon the first day of each calendar month from April 1, 2010 through March 31,2016. IIlI. Section 24.20 Amortization of Improvements shall be amended to reflect a change in the terms of Tenant's repayment of the Tenant Improvement Allowance. IV. Waiver of Note. The Owner and Tenant agree the balance of the note for Tenant Improvement Allowance set forth In 24.20 Is$ 51 ,459.03 the Owner shall waive such amount provided Tenant satisfies all conditions set forth in paragraph V herein. V. Default. In the event Tenant defaults on any of the terms and conditions set forth herein or the Lease,in addition to all other remedies available at law or in equity,the amount waived above for Tenant Improvements payable by Tenant through the term of this Lease shall be immediately due,including all Interest accrued on both balances,and interest shall accrue thereafter at a default rate of the maximum interest chargeable under the laws of the State of Nebraska. VI. Personal Guaranty The personal guaranty executed by William Theisen for the full performance of the obligations set forth In the Lease, and any amendments thereto, shall terminate on February 28, 2010. Provided, however, Greg Cutchall shall personally guaranty the waived Tenant Improvement Allowance in the event of a default on the lease. VII. Section 5.02 of the lease shall be deleted In its entirety. Except as hereinbefore specifically provided and set forth,each and every other term,provision,and condition in and of said original Indenture of Lease thereto shall remain in full force and effect. This Addendum shall be binding upon and Inure to the benefit of its said parties,their successors and assigns,and no modifications of or alterations to the same shall be valid unless In writing and signed by both parties. (Signature page to follow.) MOoaamMssd SW400SVezaAmtteaf Se1GgacraponvyInternet RlestOIDUakes)*•Famous Dave's 3AD 031210(2).dnc 4,02,2010 IN WITNESS WHEREOF,the said partles have caused these present to be executed this I day of March,2010. Avis. Attest LAKESIDE PLAZA,L.P.,a Nebraska Limited Partnership By: Lakeside Plaza,Inc.,a Nebraska corporation General Partner Witness: Old Market Ventures,LLC,a Nebraska Limited liability company,d/b/a ram us Dave's Restaurant By: AILCGL }41- 1S1JJ By: \tL\• Its: rN oe Federal Tax ID: lS i -074 5 9 6w3 OOmnrrmsaa Setlingslpahnaccal SetUnKierroraryIMO,ttRes10LR3EUYakeslda-Ferrous Dads 3RD 031210(2),loc AM2.2010 2 � G BY: CARMAN JOHNSON, LIQUOR CLERK RECEIVED FEB 24 2011 STATE OF NEBRASKA ) )ss. NEBRASKALIQUOr COUNTY OFDOUGLAS ) CONTROL r!nihMlUlcC" BEFORE ME the undersigned Notary Public in and for said county personally appeared i\M.0 ELwr ". . ... ,to me known to be a i:eC L�.11. * of Lakeside Plaza, Inc., a Nebraska corporation and genera!partner to Lakeside Plaza,L,P,,and whose signature Is affixed to the foregoing Addendum to Lease as Owner, and being first duly sworn acknowledged execution of the same to be his voluntary act and deed and the voluntary act and deed of said partnership. �± Dated thIs7"day of A.JI ,201Q. ( r 0004 NOr Notary Public CHANDRA N.S18bomig ska My Commission expires. `='= M¢CoRm, STATE OF NEBRASKA ) )ss. COUNTY OF DOUGLAS ) BEFORE ME the undersigned Notary Public in and for said county personally appeared Greg Cutchall to me known to be a Manager of Old Market Ventures,LLC,a Nebraska limited liability company,and whose signature is affixed to the foregoing Addendum to Lease as Lessee,and being first duly sworn acknowledged execution of the same to he his voluntary act and deed and the voluntary act and deed of said company. Dated this 5 day of A pr1 ,2010. OtEBtL OOMARY-5ub of Walla si opv" : tart' u t VMtircitIV3``, c My Commission expires: i Z /3g /i 2. armaments and SeltIngsVagionVocal Sett ATeirpwary tnhimx f9eskO K3E0\lakeside-r2mou,Dews 3RD 031210(2).6oc Apr12,2010 - 3 nd nine (9)month extension(In lieu of Tenant exercising Tenant's option to renew)of the original Lease Term commencing April 1, 2010 and ending March 31,2016. IX. Section 2.01 Minimum Rent shall be amended to reflect a change in the Minimum Rents,to wit: (a) the sum of$8,000.00 in advance upon the first day of each calendar month from April 1, 2010 through March 31,2016. IIlI. Section 24.20 Amortization of Improvements shall be amended to reflect a change in the terms of Tenant's repayment of the Tenant Improvement Allowance. IV. Waiver of Note. The Owner and Tenant agree the balance of the note for Tenant Improvement Allowance set forth In 24.20 Is$ 51 ,459.03 the Owner shall waive such amount provided Tenant satisfies all conditions set forth in paragraph V herein. V. Default. In the event Tenant defaults on any of the terms and conditions set forth herein or the Lease,in addition to all other remedies available at law or in equity,the amount waived above for Tenant Improvements payable by Tenant through the term of this Lease shall be immediately due,including all Interest accrued on both balances,and interest shall accrue thereafter at a default rate of the maximum interest chargeable under the laws of the State of Nebraska. VI. Personal Guaranty The personal guaranty executed by William Theisen for the full performance of the obligations set forth In the Lease, and any amendments thereto, shall terminate on February 28, 2010. Provided, however, Greg Cutchall shall personally guaranty the waived Tenant Improvement Allowance in the event of a default on the lease. VII. Section 5.02 of the lease shall be deleted In its entirety. Except as hereinbefore specifically provided and set forth,each and every other term,provision,and condition in and of said original Indenture of Lease thereto shall remain in full force and effect. This Addendum shall be binding upon and Inure to the benefit of its said parties,their successors and assigns,and no modifications of or alterations to the same shall be valid unless In writing and signed by both parties. (Signature page to follow.) MOoaamMssd SW400SVezaAmtteaf Se1GgacraponvyInternet RlestOIDUakes)*•Famous Dave's 3AD 031210(2).dnc 4,02,2010 GUARANTY FOR VAWE RECEIVED, and in consideration for and as an inducement to Owner making the within Lease(and Assignment), each of the undersigned, on their own behalf, their legal representatives, heirs, successors, and assigns, unconditionally guarantees to Owner,Owner's successors and assigns,the full performance and observance of all provisions In the within described Lease(and Assignment)provided to be performed and observed by Tenant,Including the rules and regulations, without requiring any notice of non-payment, non-performance or non-observance, or proof, or demand, whereby to charge the undersigned therefore, all of which the undersigned expressly agrees that the validity of this agreement and the agreement obligations of the guarantor hereunder shall in no wise be terminated,affected or impaired by reason of the assertion by Owner against Tenant of any of the rights or remedies reserved to Owner pursuant to the provisions of the within described Lease(and Assignment). The undersigned further agrees that this Guaranty shall remain and continue in full force and effect as to any renewal,modification,or extension of the said Lease(and Assignment). As a further inducement to Owner to make said Lease and in consideration thereof,Owner and the undersigned agree that in any action or proceeding brought by either Owner or the undersigned against the other on any matters whatsoever arising out of, under,or by virtue of the terms of said Lease, or of this Guaranty, that Owner and the undersigned shall and do hereby waive trial by jury. Witness !^ Greg�Atchall • STATE OF NEBRASKA ) )ss. COUNTY OF DOUGLAS ) BEFORE ME the undersIgned Notary Public in and for said county personally appeared Greg Cutchall to me known,and whose signature is affixed to the foregoing,and being first duly.sworn acknowledged execution of.the same to be his voluntary act and deed. Dated this 5 day of A.pri f ,2010. UiFAIN.HDTMT-Ote of Aebrasks comm.m.morn ALWl. Mt/OVA No Public My Commission expires: (2 I30/t a =ceme tsadSeIDntn)PaltAt=e15CWn4t1TaK y Internet fieStOWEwekes'de•Paa=Wes 3Rd 031710 Wen Ap07,2010 4 he Owner and Tenant agree the balance of the note for Tenant Improvement Allowance set forth In 24.20 Is$ 51 ,459.03 the Owner shall waive such amount provided Tenant satisfies all conditions set forth in paragraph V herein. V. Default. In the event Tenant defaults on any of the terms and conditions set forth herein or the Lease,in addition to all other remedies available at law or in equity,the amount waived above for Tenant Improvements payable by Tenant through the term of this Lease shall be immediately due,including all Interest accrued on both balances,and interest shall accrue thereafter at a default rate of the maximum interest chargeable under the laws of the State of Nebraska. VI. Personal Guaranty The personal guaranty executed by William Theisen for the full performance of the obligations set forth In the Lease, and any amendments thereto, shall terminate on February 28, 2010. Provided, however, Greg Cutchall shall personally guaranty the waived Tenant Improvement Allowance in the event of a default on the lease. VII. Section 5.02 of the lease shall be deleted In its entirety. Except as hereinbefore specifically provided and set forth,each and every other term,provision,and condition in and of said original Indenture of Lease thereto shall remain in full force and effect. This Addendum shall be binding upon and Inure to the benefit of its said parties,their successors and assigns,and no modifications of or alterations to the same shall be valid unless In writing and signed by both parties. (Signature page to follow.) MOoaamMssd SW400SVezaAmtteaf Se1GgacraponvyInternet RlestOIDUakes)*•Famous Dave's 3AD 031210(2).dnc 4,02,2010 • AMENDMENT TO LEASE WHEREAS heretofore on the 15th day of September, 2000, Lakeside Plaza L.P., a Nebraska limited partnership, "Owner" and BBQ Ventures of Nebraska LLC, a Nebraska limited liability company D/B/A Famous Dave's Restaurant, hereinafter "Tenant" entered into a certain Lease, with respect to premises therein described situated in Lakeside Plaza Shopping Center in the City of Omaha, Douglas county, Nebraska to which .this Amendment is attached and incorporated as a part thereof; anti WHEREAS, the said parties desire and intend to adopt certain modifications and alternatives to said original Lease as more particularly set forth below; NOW, THEREFORE, for and in consideration of the monies hereinafter provided for to be paid, the mutual covenants hereinafter undertaken, the monies.provided for to be paid in said original Lease, the sufficiency of which consideration is by the said parties hereby acknowledged, the said parties hereby and herewith adopt the following as an; amendment to the said original Lease. I. Exhibit "A" is deleted in its entirety and replaced with the attached Exhibit "A". Except as hereinbefore specifically provided and set forth, each and every other term, provision, and condition in and of said original Lease thereto shell remain in full force and effect. This Amendment shall be binding upon and inure to the benefit of its said parties, their successors and assigns, and no modifications of or alterations to the same shall be valid unless in writing and signed by both parties. IN WITNESS WHEREOF, the said parties have caused these present to be executed this day ofNovember, 2001. • Lakeside Plaza L.P. , a Nebraska . limited partnership By: Lakeside Plaza, Inc. , a • Nebraska corporation, "Owner" • By: 64121° Title: -eiP D6 • • BBQ Ventures o£ Nebraska LLC, a : Nebraska limited liability . company D/B/A Famous Dave's Restaurant • • By: William Theisen, member mprovement Allowance set forth In 24.20 Is$ 51 ,459.03 the Owner shall waive such amount provided Tenant satisfies all conditions set forth in paragraph V herein. V. Default. In the event Tenant defaults on any of the terms and conditions set forth herein or the Lease,in addition to all other remedies available at law or in equity,the amount waived above for Tenant Improvements payable by Tenant through the term of this Lease shall be immediately due,including all Interest accrued on both balances,and interest shall accrue thereafter at a default rate of the maximum interest chargeable under the laws of the State of Nebraska. VI. Personal Guaranty The personal guaranty executed by William Theisen for the full performance of the obligations set forth In the Lease, and any amendments thereto, shall terminate on February 28, 2010. Provided, however, Greg Cutchall shall personally guaranty the waived Tenant Improvement Allowance in the event of a default on the lease. VII. Section 5.02 of the lease shall be deleted In its entirety. Except as hereinbefore specifically provided and set forth,each and every other term,provision,and condition in and of said original Indenture of Lease thereto shall remain in full force and effect. This Addendum shall be binding upon and Inure to the benefit of its said parties,their successors and assigns,and no modifications of or alterations to the same shall be valid unless In writing and signed by both parties. (Signature page to follow.) MOoaamMssd SW400SVezaAmtteaf Se1GgacraponvyInternet RlestOIDUakes)*•Famous Dave's 3AD 031210(2).dnc 4,02,2010 STATE OF 1"015 1V— ) COUNTY OF 9091.14 ) BEFORE ME the undersigned Notary Public in and for said county personally appeared C,VW D th✓ It-geld, to me known to be President of Lakeside Plaza Inc. , general partner of Lakeside Plaza L.P., a Nebraska limited partnership and whose signature is affixed to the foregoing Amendment to Lease as "Owner", and being first duly sworn acknowledged. execution of the same to be his voluntary act and deed and the voluntary act and deed of said limited partnership. Dated this 1 day of November, 2001. , AUMENTIMndeobmta: 4.0. Ni6=-7 USA A.NAYIDN My Comm.y.Noy.28,2CO3 z Notary Public • • My Commission expires: i f ��'� V STATE OF I ,hragiCA ) )ss. COUNTY OF IQS ) , BEFORE ME the undersigned Notary Public in and for said county personally appeared William Theiseh, to me known to be a member of BBQ Ventures of Nebraska LLC d/b/a Famous Dave's Restaurant and whose signature ;is affixed to the foregoing Amendment to Lease as "Tenant",' and being first duly sworn acknowledged execution of the same !to be his voluntary act and deed and the voluntary act and deed of said limited liability company. Dated this day of bectimbLX , 2001. • A OENERAl.iVDTARY-State of Nebraska a-9(51v III BRANDIE RAGAN k•ITYZ•a MyConwn.64.MylL,2004 Notary Public • My Commission expires: ..-UN 2C04 • • • 2 1 s. IN WITNESS WHEREOF, the said parties have caused these present to be executed this day ofNovember, 2001. • Lakeside Plaza L.P. , a Nebraska . limited partnership By: Lakeside Plaza, Inc. , a • Nebraska corporation, "Owner" • By: 64121° Title: -eiP D6 • • BBQ Ventures o£ Nebraska LLC, a : Nebraska limited liability . company D/B/A Famous Dave's Restaurant • • By: William Theisen, member mprovement Allowance set forth In 24.20 Is$ 51 ,459.03 the Owner shall waive such amount provided Tenant satisfies all conditions set forth in paragraph V herein. V. Default. In the event Tenant defaults on any of the terms and conditions set forth herein or the Lease,in addition to all other remedies available at law or in equity,the amount waived above for Tenant Improvements payable by Tenant through the term of this Lease shall be immediately due,including all Interest accrued on both balances,and interest shall accrue thereafter at a default rate of the maximum interest chargeable under the laws of the State of Nebraska. VI. Personal Guaranty The personal guaranty executed by William Theisen for the full performance of the obligations set forth In the Lease, and any amendments thereto, shall terminate on February 28, 2010. Provided, however, Greg Cutchall shall personally guaranty the waived Tenant Improvement Allowance in the event of a default on the lease. VII. Section 5.02 of the lease shall be deleted In its entirety. Except as hereinbefore specifically provided and set forth,each and every other term,provision,and condition in and of said original Indenture of Lease thereto shall remain in full force and effect. This Addendum shall be binding upon and Inure to the benefit of its said parties,their successors and assigns,and no modifications of or alterations to the same shall be valid unless In writing and signed by both parties. (Signature page to follow.) MOoaamMssd SW400SVezaAmtteaf Se1GgacraponvyInternet RlestOIDUakes)*•Famous Dave's 3AD 031210(2).dnc 4,02,2010 RECEIVED FEB• 2 4o11 NEBRAS KALIQUOR CQNTROtCOMMISSIO � • • • Page 1 of 7.i • _jr; . j. 2A6 9: thir .• 5f OEWALK �rhT'Willi" . ..'i .. _i' Tsr '��/�jCJ';iitlilWYfiil � `` `+�ewiwv�'' ,,i iris �ii aii . ----"-- ''''' '!c H tH--011-, q1714) . "Irdifb.. :44144 . •Pr;' C D I i ii n 1 II L • • 43 CARS • 9. .� I . • a .[88 ACRES •. .,.,• 0.11. -4'L 0°0 J. i n, . • iTAsTT • C. P. • . j'ti ,92.bb' • TTr \ r � \ • • ►LOT 8 , REPLA'T . 1 . 11ILD N ENVELOPE 1 I. • m.o: 152,01' 0 rant and whose signature ;is affixed to the foregoing Amendment to Lease as "Tenant",' and being first duly sworn acknowledged execution of the same !to be his voluntary act and deed and the voluntary act and deed of said limited liability company. Dated this day of bectimbLX , 2001. • A OENERAl.iVDTARY-State of Nebraska a-9(51v III BRANDIE RAGAN k•ITYZ•a MyConwn.64.MylL,2004 Notary Public • My Commission expires: ..-UN 2C04 • • • 2 1 s. IN WITNESS WHEREOF, the said parties have caused these present to be executed this day ofNovember, 2001. • Lakeside Plaza L.P. , a Nebraska . limited partnership By: Lakeside Plaza, Inc. , a • Nebraska corporation, "Owner" • By: 64121° Title: -eiP D6 • • BBQ Ventures o£ Nebraska LLC, a : Nebraska limited liability . company D/B/A Famous Dave's Restaurant • • By: William Theisen, member mprovement Allowance set forth In 24.20 Is$ 51 ,459.03 the Owner shall waive such amount provided Tenant satisfies all conditions set forth in paragraph V herein. V. Default. In the event Tenant defaults on any of the terms and conditions set forth herein or the Lease,in addition to all other remedies available at law or in equity,the amount waived above for Tenant Improvements payable by Tenant through the term of this Lease shall be immediately due,including all Interest accrued on both balances,and interest shall accrue thereafter at a default rate of the maximum interest chargeable under the laws of the State of Nebraska. VI. Personal Guaranty The personal guaranty executed by William Theisen for the full performance of the obligations set forth In the Lease, and any amendments thereto, shall terminate on February 28, 2010. Provided, however, Greg Cutchall shall personally guaranty the waived Tenant Improvement Allowance in the event of a default on the lease. VII. Section 5.02 of the lease shall be deleted In its entirety. Except as hereinbefore specifically provided and set forth,each and every other term,provision,and condition in and of said original Indenture of Lease thereto shall remain in full force and effect. This Addendum shall be binding upon and Inure to the benefit of its said parties,their successors and assigns,and no modifications of or alterations to the same shall be valid unless In writing and signed by both parties. (Signature page to follow.) MOoaamMssd SW400SVezaAmtteaf Se1GgacraponvyInternet RlestOIDUakes)*•Famous Dave's 3AD 031210(2).dnc 4,02,2010 t i RECE‘Y • FEB 24 2Q11 • • NESRAS"U(1°°r, . f-f\t Tonl ..naao'ec' • • • • • • • .w _ EXHIBIT 'A" Page 2 of 2 • • ' _- • = �� - '-� -.rim /_ l:� ` t,14 ' ' Y {, mod ikifq .,..—1 u f 1`:L, r • I Li I gr ;~ .'111 y O ' -'_ „�1 .. '. ..1 1 I ' i k elliiir ir •.; • • ''• Iiiiii —, mipinow_lA\_______. f; t Q •' j _ Q � I . �, i1 ge!i' ._ . • QOQ l QQQQQQ9QOQOQQis I - 6i'� ;{� ` _;:� I i { _ ffEMEMICE • id sill' =•! 4 • .!/1.P ntr,"4:11 I r— IIIIIIF IIIIIIVii i / I ;,_. . i.:$. .�. ,_....7.11.:01, • r.... II � .,lw mn �r. .nnt a.``� I'r Gr . T.'" !. r ii :,.,.j, -1 0 -1...keillit ....;.- •- , \ 76._ - • 1 1,„,r ,.-i-r; . _7_7. 0 m .\\ . _ . • • IIIIII`Pi ` - WEIDE Puy,• REVISED MIXED USE PAN • • var aoa ma oapelr e an`•emuul• wvINER'13.2001 mission expires: ..-UN 2C04 • • • 2 1 s. IN WITNESS WHEREOF, the said parties have caused these present to be executed this day ofNovember, 2001. • Lakeside Plaza L.P. , a Nebraska . limited partnership By: Lakeside Plaza, Inc. , a • Nebraska corporation, "Owner" • By: 64121° Title: -eiP D6 • • BBQ Ventures o£ Nebraska LLC, a : Nebraska limited liability . company D/B/A Famous Dave's Restaurant • • By: William Theisen, member mprovement Allowance set forth In 24.20 Is$ 51 ,459.03 the Owner shall waive such amount provided Tenant satisfies all conditions set forth in paragraph V herein. V. Default. In the event Tenant defaults on any of the terms and conditions set forth herein or the Lease,in addition to all other remedies available at law or in equity,the amount waived above for Tenant Improvements payable by Tenant through the term of this Lease shall be immediately due,including all Interest accrued on both balances,and interest shall accrue thereafter at a default rate of the maximum interest chargeable under the laws of the State of Nebraska. VI. Personal Guaranty The personal guaranty executed by William Theisen for the full performance of the obligations set forth In the Lease, and any amendments thereto, shall terminate on February 28, 2010. Provided, however, Greg Cutchall shall personally guaranty the waived Tenant Improvement Allowance in the event of a default on the lease. VII. Section 5.02 of the lease shall be deleted In its entirety. Except as hereinbefore specifically provided and set forth,each and every other term,provision,and condition in and of said original Indenture of Lease thereto shall remain in full force and effect. This Addendum shall be binding upon and Inure to the benefit of its said parties,their successors and assigns,and no modifications of or alterations to the same shall be valid unless In writing and signed by both parties. (Signature page to follow.) MOoaamMssd SW400SVezaAmtteaf Se1GgacraponvyInternet RlestOIDUakes)*•Famous Dave's 3AD 031210(2).dnc 4,02,2010 RECEWELD • FEB 24 2011 • • • • NESRASKALIQUOb CONTROL COMMiSSiOts • STANDARD SHOPPING CENTER LEASE LAKESIDE PLAZA, L.P. a Nebraska Limited Partnership r • • • • TENANT BBO Ventures of Nebraska LLC, a Nebraska • • Limited Liability Company D/B/A Famous Dave's Restaurant DATE 9/12/00 • • • • • • • C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 ' : CARMAN JOHNSON, LIQUOR CLERK • • INDEX TO SHOPPING CENTER LEASE • ARTICLE I -- GRANT AND TERM • Section 1.01 Leased Premises Section 1.02 Use of Additional Areas Section 1.03 Commencement :and Ending Date of Term Section 1.04 Lease Year Defined Section 1.05 Failure of Tenant to Open Section 1.06 Excuse of Owner's Performance ARTICLE II -- RENT Section 2.01 Minimum Rent Section 2.02 Percentage Rent Section 2.03 Gross Receipts Section 2.04 Real Estate Taxes • Section 2.05 Additional Rent Section 2.06 Past Due Rent and Additional Rent ARTICLE III -- RECORDS AND BOOKS OF ACCOUNT Section 3.01 Tenant's Records Section 3.02 Reports by Tenant ARTICLE IV -- AUDIT • Section 4.01 Right to Examine Books Section 4.02 Audit . • ARTICLE V -- CONSTRUCTION, ALTERATION, ;RELOCATION AND FINANCING OF IMPROVEMENTS AND ADDITIONS THERETO Section 5.01 Owner's Obligation Section 5.02 Parking Facilities Section 5.03 Changes and Additions to Buildings Section 5.04 Financing Section 5.05 Right to Relodate ARTICLE VI -- CONDUCT OF BUSINESS BY TENANT Section 6.01 Use of Premises Section 6.02 Operation of Business Section 6.03 Storage, Office Space • • ARTICLE VII -- OPERATION OF CONCESSIONS Section 7.01 Consent of Owner • ARTICLE VIII -- PARKING AND COMMON USE :AREAS AND FACILITIES- Section 8.01 Control of Conimon Areas by Owner ARTICLE IX -- COST OF MAINTENANCE OF COMMON AREAS Section 9.01 Tenant to Bear Pro Rata Share of Expenses ARTICLE X -- SIGNS, AWNINGS, CANOPIES, FIXTURES, ALTERATIONS Section 10.01 Installation by Tenant Section 10.02 Removal and Restoration by Tenant Section 10.03 Tenant Shall Discharge all Liens Section 10.04 Signs, Awnings, and Canopies Section 10.05 Roof Maintenance • ARTICLE XI -- MAINTENANCE OF LEASED PREMISES Section 11.01 Maintenance by Tenant Section 11.02' Surrender of Premises Section 11.03 Access for Repair Section 11.04 Access for Inspection Section 11.05 Rules and Regulations ARTICLE XII -- INSURANCE AND INDEMNITY C:\COFFEY\LEASE\LAXESIDE.FAMOUSDAVES\9100 2 et forth in paragraph V herein. V. Default. In the event Tenant defaults on any of the terms and conditions set forth herein or the Lease,in addition to all other remedies available at law or in equity,the amount waived above for Tenant Improvements payable by Tenant through the term of this Lease shall be immediately due,including all Interest accrued on both balances,and interest shall accrue thereafter at a default rate of the maximum interest chargeable under the laws of the State of Nebraska. VI. Personal Guaranty The personal guaranty executed by William Theisen for the full performance of the obligations set forth In the Lease, and any amendments thereto, shall terminate on February 28, 2010. Provided, however, Greg Cutchall shall personally guaranty the waived Tenant Improvement Allowance in the event of a default on the lease. VII. Section 5.02 of the lease shall be deleted In its entirety. Except as hereinbefore specifically provided and set forth,each and every other term,provision,and condition in and of said original Indenture of Lease thereto shall remain in full force and effect. This Addendum shall be binding upon and Inure to the benefit of its said parties,their successors and assigns,and no modifications of or alterations to the same shall be valid unless In writing and signed by both parties. (Signature page to follow.) MOoaamMssd SW400SVezaAmtteaf Se1GgacraponvyInternet RlestOIDUakes)*•Famous Dave's 3AD 031210(2).dnc 4,02,2010 f } Section 12.01 Liability Insurance Section 12.02 Tenant to Bear .ProRata Share of Expense Section 12.03 Indemnification of Owner & Tenant Section 12.04 Plate Glass • Section 12.05 Inventory Insurance ARTICLE XIII -- UTILITIES Section 13.01 Utility Charges ARTICLE XIV -- OFFSET STATEMENT, ATTORNMENT, SUBORDINATION Section 14.01 Offset Statement Section 14.02 Subordination • Section 14.03 Attornment ARTICLE XV -- ASSIGNMENT AND SUBLETTING Section 15.01 Consent .Required Section 15.02 Corporate Ownership ARTICLE XVI -- WASTE, GOVERNMENTAL REGULATIONS Section 16.01 Waste or Nuisance Section 16.02 Governmental Regulations • ARTICLE XVII -- TENANT NAME & SOLICITATION Section 17.01 Change of Name Section 17.02 Solicitation of Business Section 17.03 Promotional Fund • ARTICLE XVIII -- DESTRUCTION OF LEASED PREMISES Section 18.01 Total or Partial Destruction Section 18.02 Partial Destruction of Shopping Center ARTICLE XIX -- EMINENT DOMAIN • Section 19.01 Total and Partial Condemnation of Leased Premises Section 19.02 Tenants Damage Section 19.03 Owner's Damage ARTICLE XX -- DEFAULT OF THE TENANT Section 20.01 Right to Re-Enter Section 20.02 Right to Relet Section 20.03 Legal Expenses, • ARTICLE XXI -- TENANT'S PROPERTY Section 21.01 Taxes on Leasehold Section 21.02 Anti-Subrogation • Section 21.03 Notice by Tenant • ARTICLE XXII -- HOLDING OVER Section 22.01 Holding Over Section 22.02 Successors ARTICLE XXIII -- QUIET ENJOYMENT • Section 23.01 Owner's Covenant ARTICLE XXIV -- MISCELLANEOUS Section 24.01 Waiver Section 24.02 Accord & Satisfaction o• Section 24.03 Entire Agreement Section 24.04 No Partnership Section 24.05 Other Tenants • • Section 24.06 Force Majeure , Section 24.07 Notices Section 24.08 Captions and Section Numbers Section 24.09 Tenant Defined, use of Pronoun Section 24.10 Broker's Commission C:\COFFEY\LEASE\LAKESTDE.FAHOUSDAVES\9100 3 epair Section 11.04 Access for Inspection Section 11.05 Rules and Regulations ARTICLE XII -- INSURANCE AND INDEMNITY C:\COFFEY\LEASE\LAXESIDE.FAMOUSDAVES\9100 2 et forth in paragraph V herein. V. Default. In the event Tenant defaults on any of the terms and conditions set forth herein or the Lease,in addition to all other remedies available at law or in equity,the amount waived above for Tenant Improvements payable by Tenant through the term of this Lease shall be immediately due,including all Interest accrued on both balances,and interest shall accrue thereafter at a default rate of the maximum interest chargeable under the laws of the State of Nebraska. VI. Personal Guaranty The personal guaranty executed by William Theisen for the full performance of the obligations set forth In the Lease, and any amendments thereto, shall terminate on February 28, 2010. Provided, however, Greg Cutchall shall personally guaranty the waived Tenant Improvement Allowance in the event of a default on the lease. VII. Section 5.02 of the lease shall be deleted In its entirety. Except as hereinbefore specifically provided and set forth,each and every other term,provision,and condition in and of said original Indenture of Lease thereto shall remain in full force and effect. This Addendum shall be binding upon and Inure to the benefit of its said parties,their successors and assigns,and no modifications of or alterations to the same shall be valid unless In writing and signed by both parties. (Signature page to follow.) MOoaamMssd SW400SVezaAmtteaf Se1GgacraponvyInternet RlestOIDUakes)*•Famous Dave's 3AD 031210(2).dnc 4,02,2010 f i Section 24.11 Partial Invalidity • RECEIVED Section 24.12 No Option Section 24.13 Recording FEB 24 2011 Section 24.14 Rider Section 24.15 Exhibits NEBRASKALIQUOr ,ntMtTonr rvvismtectni • • • C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 4 TENANT BBO Ventures of Nebraska LLC, a Nebraska • • Limited Liability Company D/B/A Famous Dave's Restaurant DATE 9/12/00 • • • • • • • C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 ' : CARMAN JOHNSON, LIQUOR CLERK , 0 • • • THIS INDENTURE OF LEASE, made on the _ day of 20_, by LAKESIDE PLAZA, L.P. , a Nebraska limited partnership hereinafter called "OWNER" and BBO Ventures of Nebraska LLC, a Nebraska Limited Liability Comfill5 Famous Dave's Restaurant hereinafter called "TENANT", ({\ Iva) W I T N E S E T H: Article rticle I GRANT AND TERM NEBRASKALIQUOh SECTION 1.01 Leased Premises. cONTROI connnsIgSI(' • In consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of Tenant to be observed and performed, the Owner demises and leases to the Tenant, and Tenant rents from Owner, those certain premises now or hereafter' to be erected in the LAKESIDE PLAZA SHOPPING CENTER, hereinafter called the "Shopping Center" in Omaha, Douglas County, Nebraska, which premises consist of a BBQ Restaurant having exterior measurements of 75 feet in width and 80 :feet in depth and containing an area of approximately 6,000 square feet, herein called the "leased premises". The boundaries and location of the leased premises are outlined in red on the site plan of the Shopping Center, which is marked Exhibit "A", attached hereto and by specific reference made a.part hereof. SECTION 1.02 Use of Additional Areas. . a• The use and occupation by the Tenant of the leased premises shall include the use in common with others entitled thereto of the common areas, employee's parking areas, service roads:, loading facilities, sidewalks and customer car parking areas, shown and ;depicted on Exhibit "A", and other facilities as may be designated from time to time by the Owner, subject to restrictions of record. • SECTION 1.03 Commencement and Ending Date of Term. The term of this lease and Tenant's obligation to pay rent hereunder shall commence upon the earlier of the date Tenant opens for business to the public or March 1, 2001. The term this. lease shall end on the last day of the tenth (10t1) consecutive full lease' year as said term "lease year" is• hereinafter defined. On or before the .aforesaid commencement of the lease term, Tenant shall, and hereby covenants to, accept the leased premises and acknowledge such acceptance in writing, ' in form acceptable to Owner. SECTION 1.04 Lease Year Defined. The term "lease year" as used herein shall mean a period of twelve (12) consecutive full calendar months. The first lease year shall begin on the date of commencement the term hereof if the date of commencement of the term hereof shall occur on the first day of a calendar month; if not, then the first lease year shall commence upon the'first day of the calendar month next following the date of commencement of the term hereof. Each succeeding lease year shall commence upon the anniversary.date of the first lease year. SECTION 1.05 Failure of Tenant to Open. In the event that the Owner notifies the Tenant that the leased premises are ready for occupancy as herein defined and. the Tenant fails to take possession and to open the leased premises for business fully fixtured, stocked and staffed within the time herein provided, then the Owner shall have in addition to. any and all remedies herein provided the right at its option to collect the minimum rent herein provided. C:\COFFEY\LEASE\LAKESIDE.FARMOUSDAVES\9100 5 thereto shall remain in full force and effect. This Addendum shall be binding upon and Inure to the benefit of its said parties,their successors and assigns,and no modifications of or alterations to the same shall be valid unless In writing and signed by both parties. (Signature page to follow.) MOoaamMssd SW400SVezaAmtteaf Se1GgacraponvyInternet RlestOIDUakes)*•Famous Dave's 3AD 031210(2).dnc 4,02,2010 SECTION 1.06 Excuse of Performance. Anything in this agreement to the contrary notwithstanding, providing such.cause is not due to the willful act or neglect of Owner or Tenant, the party affected shall not be deemed in default with. respect to the performance of any of the terms, covenants and conditions of this Lease if same shall be due to any strikes, lockouts, civil coninotion, war-like operation, invasion, rebellion, hostilities, military or usurped power, sabotage, governmental regulations or controls, inability to obtain any material, or service, through Act of God or other cause beyond the control of said party. ARTICLE II RENT SECTION 2.01 Minimum Rent. Tenant agrees to pay to Owner at the office of Owner, or at such other place designated by Owner, without any prior demand therefor and without any deduction or set-off whatsoever, and as fixed minimum rent. • (a) the sum of $9.250.00 in advance upon the first day of each calendar month of the first lease year through third inclusive; and (b) the sum of $9,750.00 'in advance upon the first day of each calendar month of the fourth lease year (the fourth lease year inclusive) ; and (c) the sum of $9,945.00 in advance upon the first day of each calendar month of the fifth lease year' (the fifth lease year inclusive) ; (d) the sum of $10,145.00 in advance upon the first day of each calendar month of the sixth lease year (the sixth lease year inclusive) ; (e) the sum of $10,345.00 in advance upon the first day of each calendar month of the seventh lease year (the seventh lease year inclusive) ; (f) the sum of $10,655.00 in advance upon the first day of each calendar month of the eighth. lease year (the eighth lease year inclusive) ; (g) the sum of $10,975.00 in advance upon the first day of each calendar month of the ninth lease year (the ninth lease year inclusive) ; and (h) the sum of $11,195.00 in advance upon the first day of each calendar month of the tenth: lease year (the tenth lease year inclusive) ; If the term shall commence upon a. day other than the first day of a calendar month, then Tenant shall pay,' upon the commencement date of the term, a pro-rata portion of the fixed monthly rent described in the foregoing clause (a) prorated on a per diem basis with respect to the fractional calendar month preceding the commencement of the first lease year hereof. SECTION 2.02 Percentage Rent. THIS SECTION HAS BEEN INTENTIONALLY OMITTED. 6 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 a calendar month; if not, then the first lease year shall commence upon the'first day of the calendar month next following the date of commencement of the term hereof. Each succeeding lease year shall commence upon the anniversary.date of the first lease year. SECTION 1.05 Failure of Tenant to Open. In the event that the Owner notifies the Tenant that the leased premises are ready for occupancy as herein defined and. the Tenant fails to take possession and to open the leased premises for business fully fixtured, stocked and staffed within the time herein provided, then the Owner shall have in addition to. any and all remedies herein provided the right at its option to collect the minimum rent herein provided. C:\COFFEY\LEASE\LAKESIDE.FARMOUSDAVES\9100 5 thereto shall remain in full force and effect. This Addendum shall be binding upon and Inure to the benefit of its said parties,their successors and assigns,and no modifications of or alterations to the same shall be valid unless In writing and signed by both parties. (Signature page to follow.) MOoaamMssd SW400SVezaAmtteaf Se1GgacraponvyInternet RlestOIDUakes)*•Famous Dave's 3AD 031210(2).dnc 4,02,2010 f I • SECTION 2.03 Gross Receipts Defined. . THIS SECTION HAS BEEN INTENTIONALLY OMITTED. . SECTION 2.04 Real Estate Taxes and Assessments. Owner will pay in the first instance all real property taxes which may be assessed or levied by any lawful authority against the land and improvements of the Shopping Center. Beginning at the commencement of the term hereof, Tenant shall reimburse Owner, as additional rent, Tenant's ProRata share of said real property taxes assessed against both land and improvements located on Lot 5 of the Shopping Center. Tenant's ProRata share for taxes shall be determined and computed by multiplying such total by a fraction, the numerator of which shall be the square feet of the leased premises and the denominator of which shall be the gross leasable area of the building located on' Lot 5 of the Shopping Center. The additional rent provided for in this Section 2.04 . shall be paid in equal monthly installments, in advance (as the same may be subsequently increased or decreased) if the amount of such monthly payment paid by Tenant exceeds the actual amount thereafter due, the overpayment shall be credited on Tenant's next succeeding payment period. If the amount of such monthly payment paid by Tenant shall be less than the actual amount due, Tenant shall pay to Owner the difference between the• amount paid .by Tenant and the actual amount due, within ten (10) days after written demand from.Owner. If on the first day of the month in question, the amount of real estate taxes payable during the then current tax year shall not have been determined by the taxing authority, the payment due hereunder this Section 2.04 shall be estimated by Owner based upon the amount paid for the immediately preceding tax year or based upon Owner's knowledge of current assessment :values. A tax statement submitted by Owner to Tenant shall be sufficient evidence of the amount of taxes assessed or levied against the parcel or real property to which such adjustment billing relates. In addition to the real estate tax reimbursement as above provided, Tenant shall pay to Owner within thirty (30) days after the same shall be payable by Owner and as additional rent:for the lease year in which the same shall be so payable, a proportionate amount, as determined hereinabove this Section 2.04, of any special assessment or installment thereof for public betterment or improvements constructed after the date of this Lease which may be levied upon the Shopping Center. Owner shall take the benefit of the provisions of any statute or ordinance permitting any such assessment to be paid over a period of time, and Tenant shall be obligated to pay only the prorated amount of the installments of any such assessments which shall become due and payable each lease year during the term of this lease. SECTION 2.05 Additional Rent. • The Tenant shall pay as additional rent any money required to be paid pursuant to Sections 2.04, 9.01, 12.02 and 24.20, and all other sums of money or charges required to be paid by Tenant under this Lease, whether or not the same be designated "Additional Rent." ; If such amounts or charges are not paid at the time provided in this Lease, they shall nevertheless, if not paid when due, be collectable as additional rent with the next installment of rent thereafter falling due hereunder, but nothing herein contained shall be deemed to suspend or delay the payment hereunder, or limit any other remedy of the Owners. • SECTION 2.06 Past Due Rent and Additional Rent. If Tenant shall fail to pay, when the same is due and payable, any rent or any additional rent, or amounts or charges of the character described in Section 2.05 hereof, such unpaid amounts shall bear interest from the due date thereof to the date of payment at the maximum rate permissible by state law. Should Tenant fail to pay Owner. the minimum and additional rental described hereinabove by the 10th day of each calendar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 • pay as a late charge fee the amount equal to ten percent (10%) of the amount which is due and payable to Owner. Acceptance of 'such late charges by Owner shall in no event constitute a waiver: of Tenant's default with respect to such overdue amount, nor prevent Ownbr from exercising any of the other rights and remedies granted hereunder.' • ARTICLE III RECORDS AND BOOKS OF ACCOUNT SECTION 3.01 Tenant's Records. THIS SECTION HAS BEEN INTENTIONALLY OMITTED. SECTION 3.02 Reports by Tenant. On or before the fifteenth (15th) day of the calendar month following the month in which the term of this Lease commences, and on or before the fifteenth (15th) day of each calendar month thereafter to and including the calendar month following the termination of the term of this lease, Tenant shall prepare and deliver to" Owner at the place where rent is payable a written ' statement signed by Tenant, and certified by it to be true and correct showing in reasonably accurate detail the amount of gross receipts for each preceding month and fractional month, if any, prior to the cbmmencement of the first lease year. Tenant shall submit to the Owner on or before the sixtieth (60th) day following the end of each lease year at the place then fixed for the payment of .rent a written statement signed by Tenant, and certified to be true and correct showing in reasonably accurate detail the amount of gross receipts during the preceding lease year, and duly certified by a certified public accountant of recognized standing, or if Tenant is a corporation, by an authorized officer of Tenant, such statement to be delivered whether or not percentage rental is applicable. Tenant is providing these reports solely for Owner's internal use and the information contained therein shall not be disclosed to any third party. ARTICLE IV AUDIT SECTION 4.01 Right to Examine Books. • THIS SECTION HAS BEEN INTENTIONALLY OMITTED. SECTION 4.02 Audit. THIS SECTION HAS BEEN INTENTIONALLY OMITTED. ARTICLE V !. CONSTRUCTION, ALTERATION, RELOCATION AND FINANCING IMPROVEMENTS AND ADDITIONS THERETO SECTION 5.01 Owner's Obligation. Owner shall at its cost and expense construct the leased premises for Tenant's use and occupancy in accordance with plans and specifications prepared by Owner or Owner's architect,: incorporating in such construction all items specifically enumerated in said Exhibit "B" attached hereto and made a part hereof. Tenant shall construct Tenant's improvements in accordance with Tenant's plans and specifications and in accordance with Exhibit "B" of this Lease. Any work :in addition to any of the items specifically enumerated in said Exhibit ''B" shall be performed by the Tenant at its own cost and expense unless otherwise provided hereinafter. C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 8 Tenant shall pay as additional rent any money required to be paid pursuant to Sections 2.04, 9.01, 12.02 and 24.20, and all other sums of money or charges required to be paid by Tenant under this Lease, whether or not the same be designated "Additional Rent." ; If such amounts or charges are not paid at the time provided in this Lease, they shall nevertheless, if not paid when due, be collectable as additional rent with the next installment of rent thereafter falling due hereunder, but nothing herein contained shall be deemed to suspend or delay the payment hereunder, or limit any other remedy of the Owners. • SECTION 2.06 Past Due Rent and Additional Rent. If Tenant shall fail to pay, when the same is due and payable, any rent or any additional rent, or amounts or charges of the character described in Section 2.05 hereof, such unpaid amounts shall bear interest from the due date thereof to the date of payment at the maximum rate permissible by state law. Should Tenant fail to pay Owner. the minimum and additional rental described hereinabove by the 10th day of each calendar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 SECTION 5.02 Parking Facilities. The Owner shall construct upon the Shopping Center site at its own cost, access roads, footways and parking lois or facilities as shown on Exhibit "A". The parking lots or facilities located on Lots 5, 10, 11 and 12 shall remain substantially the same as shown on Exhibit "A" during the term of this Lease and any extensions thereto. SECTION 5.03 Changes and Additions to;Buildings. Owner hereby ,reserves the right at any time to make alterations or additions to and to build additional stories on the building in which the premises are contained and to build adjoining the same. Owner also reserves the right to construct other building or improvements in the Shopping Center from time to time and to make alterations thereof or additions thereto and to build additional stories on any such building or buildings and to build adjoining same and to construct double-deck or elevated parking facilities so long as there remains four (4) parking stalls per thousand square feet of the gross leasable area of the Shopping Center. Section 5.04 Financing THIS SECTION HAS BEEN INTENTIONALLY OMITTED SECTION 5.05 Right to Relocate. The purpose of the site plan attached hereto as Exhibit "A" is to show the approximate location of the leased premises. Owner reserves the right at any time to relocate the various buildings, automotive parking areas, and other common areas shown on said site plan. ARTICLE VI CONDUCT OF BUSINESS BY TENANT SECTION 6.01 Use of Premises. Tenant shall use the leased premises solely for the purpose of conducting the business of: A full service Famous Dave's Barbecue Restaurant with the incidental sale of alcoholic beverages for on premises consumption (sales not to exceed 40% of. total sales) . Tenant shall occupy the leased premises within sixty (60) days after the date of the notice provided for in Section 1.03 hereof, and shall conduct continuously in the leased premises thebusiness above stated. Tenant will not use or permit, or suffer the use of, the leased premises for any other business or purpose. Tenant shall not conduct catalogue sales in or from the leased premises except of merchandise which Tenant is permitted to sell "over the counter" in or at the leased premises pursuant to the provisions of this Section 6.01. Tenant shall not conduct' auction sales, fire sales, vacancy sales, or "going out of business" sales in or from the leased premises, nor shall Tenant use or permit the use of any vending machines outside the demised premises. . SECTION 6.02 Operation of Business. Tenant shall operate all of the leased premises during the entire term of this lease with due diligence and efficiency so as to produce all of the gross sales which may be produced by such manner of operation, unless prevented from doing so by causes beyond Tenant's control. Subject to inability by reason of strikes or labor 'disputes, Tenant shall carry at all C:\COFFEY\LEASEVLAKESIDE.FAMOUSDAVES\9100 9 nt to Sections 2.04, 9.01, 12.02 and 24.20, and all other sums of money or charges required to be paid by Tenant under this Lease, whether or not the same be designated "Additional Rent." ; If such amounts or charges are not paid at the time provided in this Lease, they shall nevertheless, if not paid when due, be collectable as additional rent with the next installment of rent thereafter falling due hereunder, but nothing herein contained shall be deemed to suspend or delay the payment hereunder, or limit any other remedy of the Owners. • SECTION 2.06 Past Due Rent and Additional Rent. If Tenant shall fail to pay, when the same is due and payable, any rent or any additional rent, or amounts or charges of the character described in Section 2.05 hereof, such unpaid amounts shall bear interest from the due date thereof to the date of payment at the maximum rate permissible by state law. Should Tenant fail to pay Owner. the minimum and additional rental described hereinabove by the 10th day of each calendar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 • times in said premises a stock of merchandise of such size, character and quality as shall be reasonably designed to produce the maximum return to Owner and Tenant. Tenant shall conduct its business in the leased premises during the regular customary days and hours for such type of business in the City or trade area in which the Shopping Center is located, and will keep the leased premises open for business during the same days, nights, and hours as the majority of tenants in the shopping center are open for business. SECTION 6.03 Storage, Office Space. Tenant shall warehouse, store and/or stock in the leased premises only such goods, wares and merchandise as Tenant intends to offer for sale at retail at, in, from or upon the leased premises. This shall not preclude occasional emergency transfers of merchandise to the other stores of Tenant, if any, not located in the Shopping Center. Tenant shall use for office, clerical or other non-selling purposes only such space in the leased premises as is from time to time reasonably required for Tenant's business in the leased premises. ARTICLE VII • OPERATION OF CONCESSIONS SECTION 7.01 Consent of Owner. Tenant shall not permit any business to be operated in or from the leased premises by any concessionaire or licensee without the prior written consent of Owner which consent shall not be unreasonably withheld. In the event Owner does give such consent, each concession shall be subject to the terms and conditions of this Lease; and a minimum of ninety-five percent (95%) of the sales floor area of the .demised premises shall be directly operated by Tenant. ARTICLE VIII PARKING AND COMMON USE AREAS AND FACILITIES SECTION 8.01 Control of Common Areas by Owner. All automobile parking areas, driveways, entrances and exits thereto, and other facilities furnished by Owner in or near the Shopping Center, including employee' parking areas, the truck way or ways, loading docks, package pick-up stations, pedestrian sidewalks, and ramps, landscaped areas, exterior stairways, and other areas and improvements provided by Owner for the general use, in common„ of tenants,; their officers, agents, employees, and customers, shall at all times be subject to the exclusive control and management of Owner, and Owner shall have the right from time to time to establish, modify and enforce reasonable rules and regulations with respect to all facilities and areas mentioned in this Article. Owner shall have the right to construct, maintain and operate lighting facilities on all said areas and improvements; to police the same; from time to time to change the area, level, location and arrangement of parking areas and other facilities hereinabove referred to; to restrict parking by Tenants, their officers, agents and employees to employee parking areas; to close all or any portion of said areas or facilities to such extent as may, in the opinion of Owner's counsel be legally sufficient to prevent a dedication thereof or the accrual of any rights to any person or the public therein; to close temporarily all or any portion of the parking areas or facilities to said areas and improvements as, in the use of good business judgement, the Owner shall determine to be advisable with a view to the improvement of the convenience and use thereof by Tenants, their officers, agents, employees and customers. Owner will operate and maintain the common facilities referred to above in such manner as Owner, in its sole discretion, shall in good faith determine from time to time. Without limiting the scope of such discretion, Owner C:\COFFEY\LEASE\LAKESIDE.FAMODSDAVES\9100 10 npaid amounts shall bear interest from the due date thereof to the date of payment at the maximum rate permissible by state law. Should Tenant fail to pay Owner. the minimum and additional rental described hereinabove by the 10th day of each calendar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 • shall have the full right and authority to employ all personnel and to make all reasonable rules and regulations .pertaining to and necessary for the proper operation and maintenance of the common areas and facilities. ARTICLE IX COST OF MAINTENANCE OF COMMON AREAS SECTION 9.01 Tenant to Bear Pro Rata Share of Expense. (a) In each lease year, Tenant will pay to Owner, in addition to the rentals specified in Article II hereof, as further additional rent, a proportion of the Shopping Center's operating cost, hereinafter defined, based upon the ratio of the square feet of the leased premises to the gross leasable area of the Shopping Center, as may be maintained by Owner. (b) For the purpose of this Section 9.01 the "Shopping Center's Operating Cost" means the .total cost and expense incurred in operating and maintaining the common facilities, hereinafter defined actually used or available for use by Tenant and the employees, agents, servants, customers, and other invitees of Tenant, excluding only items of expense commonly known and designated as carrying charges and those costs which would ordinarily be required to be capitalized under Generally Accepted Accounting Principles (GAAP) , but specifically including without limitation gardening and landscaping, fire protection charges, utilities including gas, water, sewer, electricity and Public authorities tax as it applies to said utilities, repairs, line painting, lighting, sanitary control, hydrants, marque lease, removal of snow, trash, rubbish, garbage and other refuse, the cost of personnel to implement such services, to direct parking, and to police the common facilities (including Workman's Compensation, Liability, Unemployment Insurance and Social Security payments) , the cost of supplies and utilities necessary to provide such services, and: charges for administrative and professional services as performed for Owner by management or consulting companies specifically for the benefit of the Shopping Center. "Common Facilities" means all. areas, space, equipment, and special services provided by Owner for the Common or joint use and benefit of the occupants of the Shopping Center, their employees, agents, servants, customers, and other invitees. (c) The additional rent provided to be paid in this Section 9.01 shall be paid in equal monthly installments, in advance (as the same may be subsequently increased or decreased) . During the period for the first accounting period, Tenant shall pay Owner monthly, in advance, on the first day of each month, the sum in such amount as are billed to Tenant, by Owner, as an estimate of Tenant's proportionate share of such costs. Within ninety (90) days following the end of the first accounting period and each subsequent accounting period, Owner shall furnish tenant a written statement covering the accounting period just expired, showing in reasonable detail a general breakdown of the total operating costs, the amount of Tenant's Common Area Charge for such accounting period and the payment made by Tenant with respect to such accounting period. If Tenant's Common Area Charge exceeds Tenant's payment with respect to such accounting period, Tenant shall pay Owner the deficiency within ten (10) days after the furnishing of said statement, and if said payment exceeds Tenant's Common Area Charge, Tenant shall be entitled to a credit for such excess against payments next thereafter to become due. If the term hereof has expired, Owner shall refund the excess, if any, to Tenant within ten (10) days after the annual accounting period adjustments have been determined. Tenant shall have the right to conduct an audit of the common Area Changes provided that such audit shall not occur more often than every two (2) calendar years. Tenant may not have the audit performed by any firm which is 1 1 C:\COFFEY\LEASE\LAKESIDE.FAMOOSDAVES\9100 tal described hereinabove by the 10th day of each calendar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 t i • compensated wholly or in part on a percentage of recovery basics. In the event that the Audit discloses a change of 5% or more, Owner shall, in addition, reimburse Tenant for the reasonable cost of such audit. ARTICLE X SIGNS, AWNINGS, CANOPIES•, FIXTURES, ALTERATIONS SECTION 10.01 Installation by Tenant.. Unless otherwise provided hereinafter, Tenant shall fully equip the demised premises with all trade equipment, lighting fixtures, furniture, operating equipment, floor coverings and exterior signs. All such fixtures, signs, equipment, furniture and floor coverings shall be new or completely reconditioned. Tenant shall not make ;or cause to be made any alterations, additions or improvements or install 'or cause to be installed any trade fixture, exterior sign, floor coverings, interior or exterior lighting, plumbing fixtures, shades or awnings or make any changes to the store front without first obtaining Owner's written approval of Tenant's plans and specifications for such work at the tithe approval is sought, which approval shall not be unreasonably withheld, subject to the further approval of Lakeside Hills Association when necessary. SECTION 10.02 Removal and Restoration by Tenant. All alterations, decorations, additions, and improvements made by Tenant or made by the Owner on the Tenant's behalf by agreement under this lease shall remain the property of the Tenant for the term of the Lease, or any extension or renewal thereof. Such alterations, decorations, and improvements shall not be removed from the premises prior to the end of the term hereof without prior consent in writing from the Owner. Upon expiration of this lease or any renewal term thereof, Tenant shall remove all such alterations, decorations, additions, arid improvements, as agreed upon with Owner, and restore the leased premises as provided in Section 11.02 hereof. If the Tenant fails to remove such alterations, decorations, additions, and improvements and restore the leased premises, then upon the expiration of this lease, or any renewal thereof, and upon the Tenant's removal from the premises, all such alterations, decorations, additions and improvements shall become the property of the Owner. SECTION 10.03 Tenant shall Discharge all Liens. Tenant shall promptly pay all contractors and material men, so as to minimize the possibility of a lien attaching to the leased premises, and should any such lien be made or filed, Tenant shall bond against or discharge the same within ten (10) days after written request by Owner. Failure to comply within the time herein specified ;shall constitute a default of lease. SECTION 10.04 Signs, Awnings and Canopies. Tenant will not place or suffer to be placed or maintained on any exterior door, wall or window of the leased premises any sign, awning, or canopy or advertising matter or other thing of any kind, and will not place or maintain any decoration, lettering or advertising matter on the glass of any window or door of the leased premiSes without first obtaining Owner's written approval and consent, which approval shall not be unreasonably withheld, subject to the further approval of Lakeside Hills Association when necessary. Tenant further agrees to maintain such sign, awning, canopy, decoration, lettering, advertising matter or other thing as may be approved in good condition and repair at all times. SECTION 10.05 Roof Maintenance. In event Tenant installs additional :air conditioning, or other equipment 1 2 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 ting period adjustments have been determined. Tenant shall have the right to conduct an audit of the common Area Changes provided that such audit shall not occur more often than every two (2) calendar years. Tenant may not have the audit performed by any firm which is 1 1 C:\COFFEY\LEASE\LAKESIDE.FAMOOSDAVES\9100 tal described hereinabove by the 10th day of each calendar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 0 • • on the roof, Tenant shall not violate the terms and conditions of any roofing bond and shall, if so determined, be liable for the maintenance of the roof above the leased premises resulting' from the placement 'and continuing presence of Tenant's additional equipment. ARTICLE AI MAINTENANCE OF LEASED PREMISES SECTION 11.01 Maintenance by Tenant. Tenant agrees, at all times during the term hereof or any renewal thereof and at its own expense, to (a) maintain in good condition, and promptly and diligently repair or replace any damage to the leased premises (except as hereinafter provided in respect to Owner's obligations), including, without limitations, doors, :door locks, door closers, plate glass and other glass installed therein, window moldings and casements, heating, ventilation and air conditioning (HVAC) equipment, plumbing, pipes, light tubes, bulbs and ballasts, electrical, wiring, conduits, transformers and devices; (b) maintain and promptly and diligently repair, improve or reconstruct, the leased premises in order to meet the requirements from time to time of any governmental authority :having jurisdiction thereof; and (c) maintain in good condition, and promptly and diligently repair any damage to (or replace if reasonably necessary in the circumstances), any trade fixtures installed in or attached to the leased premises; PROVIDED HOWEVER, that Owner shall be required to repair, restore, or reconstruct the building to correct damage thereto or destruction thereof :caused by a casualty to the extent covered by standard fire and extended coverage insurance; provided further, that Owner shall maintain and repair: the roof, marquee, exterior walls (except the interior faces, window glass, and doors) , and other structural parts, including the structural floor (but excluding the floor coverings) , and the fire sprinkler system of the leased premises. Tenant further agrees to paint the interior of the leased premises at such reasonably periodic times. Tenant further agrees that it. will employ, at its own expense, a reputable firm which is engaged in the business of maintaining HVAC equipment and, to regularly inspect and'maintain 'the HVAC equipment in good condition and in accordance with its original design performance. Owner shall assign to Tenant all manufacturer's equipment Warranties as they apply to equipment installed within the leased premises. SECTION 11.02 Surrender of Premises. Upon any termination or expiration of this lease under any of the provisions of this Section, Tenant shall surrender the leased premises in the condition as the leased premises were after initial improvements had been completed by Owner and Tenant in accordance with Exhibit "B" and at the commencement date of Lease, reasonable wear and tear excepted, and damage by unavoidable casualty excepted, and shall surrender all keys for the leased premises to Owner at the place then fixed for the payment of rent and shall inform Owner of all combinations on locks, safes, and vaults, if any, in the leased premises. Tenant shall remove all its trade fixtures and any alterations or improvements as provided in Section 10.02 hereof, before surrendering the premises as aforesaid and shall repair any damage to the leased premises caused thereby. Tenant:'s obligation to observe or perform this covenant shall survive the expiration of this Lease. SECTION 11.03 Access for Repair. • Owner shall be entitled, at all reasonable times, and' upon 24 hours prior written notice except in the case of emergency, to enter onto and upon the leased premises and shall have all rights as may enable it promptly, efficiently and economically to carry on work of repair, reconstruction, or restoration as to which it is obligated hereunder. Owner shall use its best efforts to refrain from interfering with Tenant's conduct of business while C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 13 ndar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 . • • RECEIVED makingrepairs FEB 24 2011 p pursuant to this Section. SECTION 11.04 Access for Inspection. : NEERASKALIQUOI' Tenant agrees to permit Owner and its authorized reprgrKTREVegilMMISSION enter the demised premises at all reasonable times during usual business hours for the purpose of inspecting the same and exhibiting the same to prospective tenants, purchasers, or lenders. Tenant further covenants and agrees that Owner may go upon the demised premises and make any necessary repairs to the demised premises and perform any work therein which may be necessary to comply with any laws, ordinances, rules, or regulations of any public authority or of the Board of Fire Underwriters or of any similar body or that Owner may deem necessary to: prevent waste or deterioration in connection with the demised premises if Tenant does not make or cause such repairs or work to be made or performed promptly after receipt of written demand from Owner. Nothing herein contained shall imply any duty on the part of Owner to do any such work which under any provision of this lease Tenant may be required to do, and Owner's doing such work shall not constitute a waiver of Tenant's default in failing to do the same. No exercise by Owner of any rights herein reserved shall entitle Tenant to any damage for any injury to inconvenience occasioned thereby nor to any abatement of rent. SECTION 11.05 Rules and Regulations. The rules and regulations appended to this lease are hereby made a part of this lease, and Tenant agrees to comply with and observe the same. Tenant's failure to keep and observe said rules and regulations shall constitute a breach of the terms of this lease in the manner as if the same were contained herein as covenants. Owner reserves the right from time to time to amend or supplement said rules and regulations and to adopt and promulgate additional rules 'and regulations applicable to the leased premises and the Shopping Center. Notice of such additional rules and regulations, and amendments, if any, shall be given to Tenant, and Tenant agrees thereupon to comply with and observe all such rules and regulations, and amendments thereto and supplements thereof, provided the same shall apply uniformly to all tenants of the Shopping Center. ARTICLE XII INSURANCE AND'. INDEMNITY SECTION 12.01 Liability Insurance. Tenant shall, during the entire term hereof, keep in full force and effect a policy of public liability 4nd property damage insurance with respect to the leased premises, and the.business operated by Tenant and any subtenants of Tenant in the leased premises in which the limits of public liability shall be not less than $3,000, 000.00. The policy shall name Owner, any person, firms or corporations having'an insurable interest and designated by Owner, and Tenant as insured, and shall contain a clause that the insurer will not cancel or change the insurance.• without first giving the Owner ten (10) days prior written notice. The insurance shall be with an insurance company with an "A" credit rating and a. copy of the policy or a certificate of insurance shall be delivered to Owner. Said policy or policies of public liability and property damage ,insurance shall likewise insure Tenant and Owner, as a named insured, against any and all claims and demands whether for injuries to persons or loss of' life, or, damage to property, arising out of acts or omissions by the Tenant or by any subtenants of Tenant or any of its licensees arising out of the use of the Common Facilities or Common Areas as defined in this lease. SECTION 12.02 Tenant to Bear Pro Rata Share of Expense. (a) Owner covenants that it will keep or cause to be kept the leased C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 14 gated hereunder. Owner shall use its best efforts to refrain from interfering with Tenant's conduct of business while C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 13 ndar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 • premises and all buildings in said Shopping Center as shown on Exhibit "A" insured against loss or damage by fire and the hazards including earthquake and flood covered by the extended coverage endorsement of the standard fire insurance policy ("all risk") to at least ninety percent • (90%) of the replacement value thereof and will furnish Lessee with certificates of such insurance upon request. (b) In each lease year Tenant shall pay over to and reimburse Owner, in addition to the rentals as specified in Article II hereof, as future additional rent, a proportion of the premiums paid by Owner for and on account of fire and extended coverage policy or policies of insurance insuring that portion of the Shopping Center .owned and/or controlled by the Landlord, including liability insurance, rental loss, and sign insurance. Tenant's proportionate share shall be determined by multiplying such total insurance premium or premiums by a fraction, the numerator of which shall be the square foot area of the leased premises, and the denominator of which shall be the gross leasable area of the Shopping Center owned and/or controlled by the Landlord. • (c) Any additional rent provided to be paid in this Section 12.02 shall be paid in equal monthly installments, in advance (as the same may be subsequently increased or decreased) . During the period for the first accounting period, Tenant shall pay Owner monthly, in advance, on the first day of each month, the sum in such amount as are billed to Tenant, by Owner as an estimate of Tenant'.s proportionate share of such costs. Within ninety (90) days following the end of the first accounting period and each subsequent accounting period, Owner shall furnish Tenant a written statement covering the accounting period just expired, a copy of Owner's insurance invoice, the amount of Tenant's proportion for such accounting period, and the payment made by Tenant with respect to such accounting period. If Tenant's proportion exceeds Tenant's payment with respect to such accounting period, Tenant shall pay Owner the deficiency within ten (10) days after the furnishing of said statement, and if said payment exceeds Tenant's proration, Tenant shall be entitled to a credit for such excess against payments next thereafter to become due.: SECTION 12.03 Indemnification of Owner. Tenant will indemnify and save Owner harmless from and against any and all claims, actions, damages, liabilityand expense in connection with loss of life, personal injury and/or damage to property arising from or out of any occurrence, in, upon or at the leased premises or any part thereof, or the occupancy or use of the Common Facilities or Common Areas as defined in this lease, or occasioned wholly or in part by any act or omission of Tenant, its agents, contractors, employees, servants, lessees, or concessionaires unless such claims arise from the gross negligence or wrongful acts of Owner. In case Owner shall, without fault on its part, be made a party to any litigation commenced by or against Tenant , then Tenant shall protect and hold Owner harmless and shall pay all costs, expenses, and reasonable attorney's fees incurred or paid by Owner in connection with such litigation.. SECTION 12.04 Plate Glass. Tenant shall replace, at the Tenant's expense, any and all plate and other glass damaged, cracked or broken from any cause whatsoever in and about the leased premises, unless such replacement is due to the negligence of . Owner, its agents, employees, or subcontractors. SECTION 12.05 Inventory, Fixture, Leasehold Improvement Insurance. Tenant shall, during the entire term hereof, keep in full force and effect a policy insuring the inventory end stock in trade of Tenant against loss or damage whether by reason of fire,'. water, including sprinkler leakage, C:\COFFEY\LEASE\LAKESIDE.FAMOOSDAVES\9100 15 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 13 ndar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 theft, vandalism, riot, breakage or any other cause. Tenant shall also during the entire term hereof, keep in full force and effect a policy or policies of insurance insuring the trade fixtures and equipment of Tenant as well as such items of leasehold improvements, alterations, or decor which Tenant may, during the term hereof, place in or upon or affix to the said leased premises. Tenant shall provide Owner, upon Owner's request, a' certificate of insurance evidencing the coverage outlined in this Section 12.05. ARTICLE XIII UTILITIES . SECTION 13.01 Utility Charges. Tenant shall be solely responsible• for and promptly pay all charges for heat, water, gas, electricity or any other utility used or consumed in the leased premises. Utilities shall be separately metered and located within the leased premises or in a common utility area. All meters including the cost of installation shall be Tenant's sole expense. In no event shall Owner be liable for an interruption or failure in the supply of any such utilities to the leased premises. ARTICLE XIV OFFSET STATEMENT, ATTORNMENT, SUBORDINATION • SECTION 14.01 Offset Statement. . Within ten (10) days after request therefor by Owner, or in the event that upon any sale, assignment, or hypothecation of the leased premises and/or the land hereunder by Owner, an offset statement or estoppel certificate shall be required from Tenant; Tenant agrees to deliver in recordable form a certificate to any proposed mortgagee or purchaser, or to Owner certifying (if such be the case) that this lease is in full force and effect and that there are no defenses Or offsets thereto, or stating those claimed by Tenant. SECTION 14.02 Subordination. Owner and Tenant, agree that this Lease be and the same is subject and subordinate at all times to all covenants, restrictions, easements and ground and underlying leases now or hereafter affecting the fee title of the Shopping Center property and to all modifications, amendments and supplements thereto. This Lease be and the same is subject and subordinate at all times to all mortgages or any other method of financing or refinancing in any amounts, and all advances thereon, which may now or hereafter be placed against or affect any or all of the land and/or the leased premises and/or any or all of the buildings and improvements now or at any time hereafter constituting a part of or adjoining the Shopping Center, and to all renewals, modifications, consolidations,. participation, replacement and extensions thereof. The term "mortgages" as used herein shall be deemed to include trust indentures and deeds of. trust. The aforesaid provisions shall be self-operative and no further instrument of subordinations shall be necessary .unless required by any such ground or> underlying lessors or mortgagees. Should Owner or any ground or underlying lessors or mortgagees desire confirmation of such subordination, the Tenant, within ten (10) days following Owner's written request therefor, agrees to execute and deliver, without charge, any and all documents (in form acceptable to such ground or underlying lessors or mortgagees) subordinating this Lease and the Tenant's rights hereunder. Should any such ground, or underlying lessors or mortgagees request that this Lease be made superior, rather the subordinate, to any such ground or underlying Lease and/or mortgage, then Tenant, within ten (10) days C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 16 , its agents, employees, or subcontractors. SECTION 12.05 Inventory, Fixture, Leasehold Improvement Insurance. Tenant shall, during the entire term hereof, keep in full force and effect a policy insuring the inventory end stock in trade of Tenant against loss or damage whether by reason of fire,'. water, including sprinkler leakage, C:\COFFEY\LEASE\LAKESIDE.FAMOOSDAVES\9100 15 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 13 ndar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 • following Owner's written request therefor, agrees to execute and deliver, without charge, any and all documents °(in form acceptable to such ground or underlying lessors or mortgagees) effectuating such priority. Any such ground or underlying lease or mortgage shall provide that a nondisturbance agreement be entered into between the ground or underlying lessor and/or mortgagee and Tenant provided that Tenant is not in default hereunder. SECTION 14.03 Attornment. Tenant agrees that in the event df a sale, transfer, or assignment of the Owner's interest in the Shopping Center or any part thereof, including the leased premises, or in the event that any proceedings are brought for the foreclosure of or for the exercise of any power of sale under any mortgage made. by Owner's covering the Shopping Center or any part thereof, including the leased premises, or in the event of. a cancellation or termination of any ground or underlying lease covering the Shopping Center or any part thereof, including the leased premises, to attorn to and to recognize such transferee, purchaser, ground or underlying lessor or mortgagee as Owner under this Lease provided that such transferee, purchaser, ground or underlying lessor or mortgagee enters into as standard nondisturbance agreement with Tenant. ARTICLE XV ASSIGNMENT AND SUBLETTING SECTION 15.01 Consent Required. • Tenant will not assign this lease in whole or in part, nor sublet all or any part of the leased premises, without the prior written consent of Owner in each instance which consent shall not: be unreasonably withheld unless such assignment or subletting shall violate any other leases in the Shopping Center or violate the "use" provision provided in Section 6.01 of the Lease. The consent by Owner to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. This prohibition against, assigning or subletting shall be construed to include a prohibition against any assignment or subletting by operation of law. If this Lease be assigned, or if the leased premises or any part thereof be underlet or occupied by anybody other than Tenant, Owner may collect rent from the assignee, under-Tenant or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, underletting, occupancy or collection : shall be deemed a waiver of this covenant, or the acceptance of the assignee, under-Tenant or occupant as Tenant, or a release of Tenant from further performance by Tenant of covenants on the part of Tenant herein contained. Notwithstanding any assignment or sublease, Tenant shall remain fully liable on this Lease and shall not be released from performing any of the terms, covenants, and condition of this Lease. SECTION 15.02 Corporate Ownership. • If at any time during the term of this lease any part or all of the corporate share of Tenant shall be transferred by sale, assignment, bequest, inheritance, operation of law or other disposition so as to result in a change in the present effective voting control of Tenant by the person or persons owning a majority of said corporate shares on the date of this lease, Tenant shall promptly notify Owner in writing of such change, and Owner may terminate this Lease upon thirty (30) days written notice to Tenant of Owner's election to so terminate. ARTICLE XVI C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 17 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 16 , its agents, employees, or subcontractors. SECTION 12.05 Inventory, Fixture, Leasehold Improvement Insurance. Tenant shall, during the entire term hereof, keep in full force and effect a policy insuring the inventory end stock in trade of Tenant against loss or damage whether by reason of fire,'. water, including sprinkler leakage, C:\COFFEY\LEASE\LAKESIDE.FAMOOSDAVES\9100 15 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 13 ndar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 • WASTE, GOVERNMENTAL REGULATIONS SECTION 16.01 Waste or Nuisance. • Tenant shall not commit or suffer to be committed any waste upon the leased premises or any nuisance or• other act or thing which may disturb the quiet enjoyment of any other tenant in the building in which the leased premises may be located, or in the Shopping Center, or-which may disturb the quiet enjoyment of any person within Five Hundred (500) feet of the boundaries of the Shopping Center. SECTION 16.02 Governmental Regulations. Tenant shall, at Tenant's sole cost and expense, comply with all of the requirements of all county, municipal,* state, federal and other applicable governmental authorities, now in force, or which may hereinafter be in force, pertaining to Tenant's use and occupancy of said premises, and shall faithfully observe in the use of the; premises all municipal and county ordinances and state and federal statutes now in force. ARTICLE.XVII TENANT NAME AND SOLICITATION SECTION 17.01 Change of Name. s• Tenant agrees not to change the advertised name of the business operated in the leased premises without the written permission of Owner, which permission shall not be unreasonably withheld. SECTION 17.02 Solicitation of Business.. Tenant and Tenant's employees and agents shall not solicit business in the parking or other common areas, nor shall Tenant distribute any handbills or other advertising matter in automobiles parked in the parking area or in other common areas, nor use any loudspeakers or other audio devices which shall be audible outside the leased premises. SECTION 17.03 Promotional Fund. This Section has been intentionally omitted. ARTICLE XVIII DESTRUCTION OF LEASED PREMISES SECTION 18.01 Total or Partial Destruction. If the leased premises shall be damaged by fire, the elements, unavoidable accident or other casualty, but are not thereby rendered untenantable in whole or in part, Owner shall, at its own expense cause such damage to be repaired, and the rent shall not be abated. If by reason of such occurrence, the premises shall be rendered untenantable only in part, Owner shall at its own expense cause the damage to be repaired, and the fixed minimum rent meanwhile shall be abated proportionately as to the portion of the premises rendered untenantable. If the premises shall be rendered wholly untenantable by reason of such occurrence, the Owner shall, at its own expense, cause such damage to be repaired, and the fixed minimum rent meanwhile shall abate until the Owner shall, at its own expense, cause such damage to be repaired, and the fixed minimum rent meanwhile shall abate until the leased premises have been restored and rendered tenantable, or Owner may, at its election, terminate this lease and the tenancy hereby created by giving to Tenant within sixty (60) days following the date of said occurrence written notice of Owner's election so' to do and in the event of such termination, rent shall be adjusted as of such date. C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 18 ntrol of Tenant by the person or persons owning a majority of said corporate shares on the date of this lease, Tenant shall promptly notify Owner in writing of such change, and Owner may terminate this Lease upon thirty (30) days written notice to Tenant of Owner's election to so terminate. ARTICLE XVI C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 17 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 16 , its agents, employees, or subcontractors. SECTION 12.05 Inventory, Fixture, Leasehold Improvement Insurance. Tenant shall, during the entire term hereof, keep in full force and effect a policy insuring the inventory end stock in trade of Tenant against loss or damage whether by reason of fire,'. water, including sprinkler leakage, C:\COFFEY\LEASE\LAKESIDE.FAMOOSDAVES\9100 15 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 13 ndar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 • Owner's responsibility to repair a-s above provided shall be limited to restoring the leased premises to the condition extant at the inception of this lease as specified in Exhibit "B': hereto, and shall not extend to the repair of any alteration, leasehold improvements, or items of decor added or installed by Tenant nor to the repair or replacement of any of Tenant's furnishings, trade fixtures, or inventory. SECTION 18.02 Partial Destruction of Shopping Center. In the event that fifty percent (50%) or more of the rentable area of the Shopping Center shall be damaged or destroyed by fire or other cause, notwithstanding that the leased premises may be unaffected by such fire or other cause, Owner may terminate this lease and the tenancy hereby created by giving to Tenant five (5) days prior written notice of Owner's election so to do which notice shall be given if at all, within the sixty (60) days following the date of said occurrence. ,Rent shall be adjusted as of the date of such termination. ARTICLE XIX EMINENT DOMAIN • SECTION 19.01 Total and Partial Condemnation of Leased Premises. If the whole of the leased premises shall be taken by any public authority under the power of eminent domain, then the term of this lease shall cease as of the day possession shall be taken by such authority, and the rent shall be paid up to that date with a proportionate refund by Owner of such rent as shall have been advanced. In the event more than twenty percent (20%) in area of the land hereinabove described in Exhibit "C"' of this Lease be so taken, the Owner shall have the right to terminate this lease at the time and with the rent adjustment as above in this Section 19.01 provided, by giving Tenant written notice of termination within thirty (30) days after the taking of possession by such public authority. SECTION 19.02 Tenant's Damages. If any of the floor area of the leased premises or twenty percent (20%) of the parking areas shall be so taken', then Tenant shall have full right either to terminate this lease or subject to Owner's right of termination as set forth in Section 19.01 of this Article, to continue in possession of the remainder of the leased premises upon notice in writing to Owner of Tenant's intention within ten (10) days after such taking of possession. In the event Tenant elects to remain in possession, and Owner does not so terminate, all of the terms herein provided shall continue in effect except that the rent shall be proportionately and equitably abated, and Owner shall make all necessary repairs or alterations to the basic building, store front and interior work. SECTION 19.03 Owner's Damages. All damages awarded for such taking under the power of eminent domain, whole or apart of the leasedpremises, shall be the property whether for the ho of Owner, whether such damages shall be awarded as compensation of diminution in value of the leasehold or to the fee of the leased premises; provided, however, that Owner shall not be entitled to the award made to Tenant for loss of business, depreciation to and cost of removal of stock and fixtures. ARTICLE XX DEFAULT OF THE TENANT SECTION 20.01 Right to Re-Enter. C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 19 n writing of such change, and Owner may terminate this Lease upon thirty (30) days written notice to Tenant of Owner's election to so terminate. ARTICLE XVI C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 17 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 16 , its agents, employees, or subcontractors. SECTION 12.05 Inventory, Fixture, Leasehold Improvement Insurance. Tenant shall, during the entire term hereof, keep in full force and effect a policy insuring the inventory end stock in trade of Tenant against loss or damage whether by reason of fire,'. water, including sprinkler leakage, C:\COFFEY\LEASE\LAKESIDE.FAMOOSDAVES\9100 15 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 13 ndar month, Tenant shall 7 C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 o. • • i In the event of any failure of Tenant to pay any rental or submit any sales tax report due hereunder within ten (10) days after the same shall be due, or any failure to perform any kother of the terms, conditions or covenants of this lease to be observed' or performed by Tenant for more than thirty (30) days after written notice of such default shall have been given to Tenant, or if Tenant or any agent of Tenant shall falsify any .report required to be furnished to Owner pursuant to the terms of this lease, or if Tenant or any guarantor of this lease small become bankrupt or insolvent, or file any debtor proceedings or take or have taken against Tenant or any guarantor of this lease in any court pursuant to any statute either of the United States or of any State a petition in bankruptcy or insolvency or for the reorganization of for the appointment of a receiver or trustee of all, or a substantial portion of Tenant's or any such guarantor's property and fails to cause the same to be dismissed within 60 days after such proceedings, or if Tenant or any such guarantor makes a .general assignment for the benefit of creditors, or petitions for or enters into an arrangement, or if Tenant shall abandon said premises, or suffer this lease to be taken under any writ of execution, then Owner besides other rights or remedies it may have, shall have the immediate right of re-entry and may remove all persons and property from the leased premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant, all without service of notice or resort tb legal process and without being deemed guilty of trespass, or becoming.liable for any loss or damage which may be occasioned thereby. SECTION 20.02 Right to Relet. Should Owner elect to re-enter, as herein provided, or should it take possession pursuant to legal proceedings orpursuant to any notice provided for by law, it may either terminate this lease or it may from time to time without terminating this lease, make such alterations and repairs as may be necessary in order'to relet the premises, and relet said premises or any part thereof for such term or terms' (which may be for a term extending beyond the term of this lease and at such rental or rentals and upon such other terms and conditions as Owner in its sole disdretion may deem advisable; upon each such subletting all rentals received by the Owner from such reletting shall be applied, first, to the payment of any indebtedness other than rent due hereunder from Tenant to Owner; second, to the payment of any costs and expenses of such reletting, including brokerage fees and attorney's fees and of costs of such alterations and repairs; third, to the payment of rent due • and unpaid hereunder, and the residue, if any, shall be held by Owner and applied in payment of future rent as the same may become due and payable hereunder. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Owner. Such. deficiency shall be calculated and paid monthly. In no event'shall Tenant be entitled to receive any excess rentals after Owner has elected to reenter. No such re-entry or taking possession of said premises by Owner shall be construed as an election on its part to terminate this lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Owner may at any time thereafter elect to terminate this lease for such previous breach. Should Owner at any time terminate this lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the leased premises, reasonable attorney's fees, and including the amount of rent and charges. equivalent to rent reserved in this lease for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant• to Owner. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • e • • • • • SECTION 20.03 Legal Expenses. In case suit shall be brought for recovery of possession of the leased premises for the recovery of rent or any other amount due under the provisions of this lease, or because of the breach of any other covenant herein contained on the part of Tenant to be kept or performed, and a breach shall be established, attorney fees shall be awarded to the adjudged party by the court of jurisdiction. • ARTICLE XXI TENANT'S PROPERTY SECTION 21.01 Taxes on Leasehold. Tenant shall be responsible for and shall pay before delinquency all municipal, county, or state taxes assessed during the term of this lease against any leasehold interest or personal property of any kind, owned by or placed in, upon or about the leased premises by Tenant. SECTION 21.02 Anti-Subrogation. Owner and Tenant hereby release the other from any and all liability or responsibility to the other or anyone claiming through or under them by way of subrogation for any loss or damage to property caused by fire or any of the extended coverage or supplementary contract casualties, even if such fire or other casualties shall have been caused by the fault or negligence of the other party, or anyone for whose acts or omissions such party may be legally responsible; provided, however, that this release shall be applicable and in force and effect only with respect to loss or damage occurring during such time as the releaser's policy shall not prohibit any such release and such release does not adversely affect or impair such policies or prejudice the right of the releaser to recover thereunder. If any insurer shall impose an extra charge for such release, each party shall advise the other thereof and the amount of such extra charge, and the other party at such other parties election, may pay the same, but shall not be obligated to do so. SECTION 21.03 Notice by Tenant. • Tenant shall give immediate notice to Owner in case of fire or accidents in the leased premises or in the building of which the premises are a part of defects therein or in any fixtures or equipment. ARTICLE XXII HOLDING OVER, SUCCESSORS • SECTION 22.01 Holding Over. Any holding over after the expiration of the term hereof, with the consent of the Owner shall be construed to be a tenancy from month to month at one hundred twenty-five percent (125%) of the rents herein specified (pro-rated on a monthly basis) and shall otherwise be on the terms and conditions herein specified, so far as applicable. SECTION 22.02 Successors. All right and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind the several respective heirs, executors, administrators, successors and assigns of the said parties and if there shall be more than one tenant, they shall be bound jointly and severally by the terms, covenants, and agreements herein. No rights, however, shall inure to the benefit of, any assignee of Tenant unless the assignment to such assignee has been approved by Owner in writing as provided 2 1 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 to receive any excess rentals after Owner has elected to reenter. No such re-entry or taking possession of said premises by Owner shall be construed as an election on its part to terminate this lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Owner may at any time thereafter elect to terminate this lease for such previous breach. Should Owner at any time terminate this lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the leased premises, reasonable attorney's fees, and including the amount of rent and charges. equivalent to rent reserved in this lease for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant• to Owner. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • • RECEIVE "FEB 2 4 2011 in Section 15.01 hereof. • ARTICLE- XXIII NEBRASKA LICK, • QUIET EN;TOYMENT CONTCMI r`/IAARINO r"° SECTION 23.01 Owner's Covenant. • Upon payment by the Tenant of the rents herein provided, and upon the 'observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the leased premises for the term hereby demised without hindrance or interruption by Owner or any other person or persons lawfully or equitably claiming by, through or under the Owner, subject, nevertheless, to the terms and conditions of this lease. ARTICLE'XXIV • • MISCELLANEOUS SECTION 24.01 Waiver. The waiver by Owner of any breach of any term, covenant or condition herein contained .shall not be deemed to •be a waiver of such term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by Owner shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this lease, other than• the failure of Tenant to pay the particular rental '•so accepted, regardless of Owner's knowledge of such preceding breach at the time of acceptance of such rent. No covenant, term or condition of this lease shall be deemed to have been waived by Owner unless such waiver be in writing by Owner. SECTION 24.02 Accord and Satisfaction.. No payment by Tenant or receipt by Owner of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check or any letter accompany any check or payment as rent be deemed an accord and satisfaction, and Owner may accept such check or payment without prejudice to Owner's right to recover the balance of such rent or pursue any other remedy in this lease provided. SECTION 24.03 Entire Agreement. This lease and the Exhibits and Rider, if any, attached hereto and forming a part hereof, set forth all the covenants, promises, agreements, conditions and understandings between Owners and Tenant concerning the leased premises and there are no covenants, promises, agreements, conditions, or understandings, either oral or written between them other than are herein set forth. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this lease shall be binding upon Owner or Tenant unless reduced to writing and signed by them. SECTION 24.04 No Partnership. Owner does not, in any way or for any purpose, become a partner of Tenant in the conduct of its business, or otherwise, joint venture or a member of a joint enterprise with Tenant. The provisions of this lease relating to the percentage rent payable herein are included solely for the purpose of providing a method whereby the rent is to be measured and ascertained. C:\COFFEY\LEASE\LAXESIDE.FAMOUSDAVES\9100 22 ASE\LAKESIDE.FAMOUSDAVES\9100 to receive any excess rentals after Owner has elected to reenter. No such re-entry or taking possession of said premises by Owner shall be construed as an election on its part to terminate this lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Owner may at any time thereafter elect to terminate this lease for such previous breach. Should Owner at any time terminate this lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the leased premises, reasonable attorney's fees, and including the amount of rent and charges. equivalent to rent reserved in this lease for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant• to Owner. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • • • SECTION•24.05 Other Tenants. - Nothing contained in this lease or•any exhibit or rider attached hereto, shall be construed, deemed, or interpreted to be a warranty, representation or agreement on the part of Owner that any department store or regional or national chain store or other merchant shall remain open for business or continue to occupy any premises in or adjoining the Shopping Center during the terms of this lease or any renewal or extension thereof. SECTION 24.06 Force Majeure. • In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any,act required hereunder by reason of strikes, lock-outs, labor troubles, inability to procure materials, failure of power, restrictive governmental laws• or regulations, riots, insurrection, war, civil commotion, or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this lease, then performance of such acts shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. The provisions of this Section 24.06 shall not operate-to excuse Tenant from prompt payment of rent, percentage rent, additional rent or any other payments required by the terms of this lease. SECTION 24.07 Notices. • • Any notice, demand, request or other instrument which may be or are required to be given under this lease shall be delivered in person or sent by United States certified mail, postage prepaid, and shall be addressed (a) if to Owner at the address first hereinabove given or at such other address as Owner may designate by written notice and (b) if to Tenant at the leased premises or at such other address as Tenant shall designate by written notice. • SECTION 24.0E Captions and Section Numbers. The captions, section numbers, article numbers, and index appearing in this lease are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of such sections or articles of this lease nor in any way affect this lease. SECTION 24.09 Tenant Defined,. Use of Pronoun. The word "Tenant" shall be deemed and taken to mean each and every person or party mentioned as a Tenant herein, be the same one or more; and if there shall be more than one Tenant, any notice required or permitted by the terms of this lease may be given by or to any one thereof, and shall have the same force and effect as if given by or to all thereof. The use of the neuter singular pronoun to refer to Owner or Tenant shall be deemed a proper reference even though Owner or Tenant may be an individual, a partnership, a corporation, or a group of two or more individuals or corporations. The necessary grammatical changes required to make the provisions of this lease apply in the plural sense where there is.more than one Owner or Tenant and to either corporations, associations, partnerships, or individuals, males or females, shall in all instances be assumed as though in each case fully expressed. SECTION 24.10 Broker's Commission. • 4• Each of the parties represents and warrants that there are no claims for brokerage commissions or finder's fees in connection with the execution of this lease, except as listed below, and each of the parties agrees to C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 23 ed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Owner may at any time thereafter elect to terminate this lease for such previous breach. Should Owner at any time terminate this lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the leased premises, reasonable attorney's fees, and including the amount of rent and charges. equivalent to rent reserved in this lease for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant• to Owner. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • • indemnify the other against, hold it harmless from, all liabilities arising from any such claim (including without limitation, the cost of counsel fees in connection therewith) except as follows: The Mega Corporation, Dennis Hoth and Dean Hokanson represent Owner and PJ Morgan, Larry Meyerson represent Tenant and will be compensated under the terms of a separate written agreement. . SECTION 24.11 Partial Invalidity. If any terms, covenants or conditions of this lease or the application thereof to any person or circumstance :shall, to any extent, be invalid or unenforceable, the remainder of this lease, or the application of such term, covenant or condition to persons or circumstances other than those as to Which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this lease shall be valid and be enforced to the fullest extent permitted by law.. SECTION 24.12 No Option. The submission of this lease for examination does not constitute a reservation of or option for the leased premises and this lease becomes effective as a lease only upon execution and delivery thereof by Owner and Tenant. SECTION 24.13 Recording. • Tenant shall not record this lease without the written consent of Owner, however, upon the request of either party hereto the other party shall join in the execution of a memorandum or so-called "short form" of this lease for the purposes of recordation. Said memorandum or short form of this lease shall describe the parties, the leased premises and the term of this lease and shall incorporate this lease by reference. SECTION 24.14 Major Tenant Assessments. . (This Section has been intentionally omitted.) SECTION 24.15 Exhibit "B". • SECTION 24.16 Rider. A rider consisting of two pages, with sections numbered consecutively 24.18 through 24.25 is attached hereto and made a part hereof. SECTION 24.17 Exhibits. The following exhibits are attached hereto and by this reference made a part hereof: Exhibit A: Shopping Center Plot Plan Exhibit B: Owner and Tenant's Work Provisions Exhibit C: Legal Description Exhibit D: Rules and Regulations Exhibit G: Sign Criteria • 2 4 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 word "Tenant" shall be deemed and taken to mean each and every person or party mentioned as a Tenant herein, be the same one or more; and if there shall be more than one Tenant, any notice required or permitted by the terms of this lease may be given by or to any one thereof, and shall have the same force and effect as if given by or to all thereof. The use of the neuter singular pronoun to refer to Owner or Tenant shall be deemed a proper reference even though Owner or Tenant may be an individual, a partnership, a corporation, or a group of two or more individuals or corporations. The necessary grammatical changes required to make the provisions of this lease apply in the plural sense where there is.more than one Owner or Tenant and to either corporations, associations, partnerships, or individuals, males or females, shall in all instances be assumed as though in each case fully expressed. SECTION 24.10 Broker's Commission. • 4• Each of the parties represents and warrants that there are no claims for brokerage commissions or finder's fees in connection with the execution of this lease, except as listed below, and each of the parties agrees to C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 23 ed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Owner may at any time thereafter elect to terminate this lease for such previous breach. Should Owner at any time terminate this lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the leased premises, reasonable attorney's fees, and including the amount of rent and charges. equivalent to rent reserved in this lease for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant• to Owner. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • Iriticovr FEB 2 4 2011 ��++ryry1^1P NI , EBRASKAWalu �f IN WITNESS WHEREOF, Owner and Tenant have signed and sealed S]L"1"UII""+' as of the day and year first above written. • LAKESIDE PLAZA, L.P. , a Nebraska limited partnership By: . LAKESIDE PLAZA, INC. , A Nebraska Corporation General Partner Attest: By: lQy?Crk L. Wtt.Sktv,G;, WeSi004" BBQ ,Ventures of Nebraska LLC, a Nebraska Limited Liability Company D/B/A Famous Dave's Restaurant Attest: ?&14,eV • By: • GUARANTY FOR VALUE RECEIVED, and in consideration for and as an inducement to Owner making the within Lease, each of the undersigned, on behalf of themselves, their legal representatives, heirs, successors, and assigns, unconditionally guarantees to Owner, Owners' successors and assigns, the full performance and observance of all provisions in the within described Lease provided to be performed and observed by Tenant, including the rules and regulations, without requiring any notice of nonpayment, nonperformance, or nonobservance, or proof, or demand, whereby to charge the undersigned therefor, all of which the undersigned expressly agrees that the validity of this agreement and the agreement obligations of the guarantor hereunder shall in no wise be terminated, affected or impaired by reason of the assertion by Owner against Tenant of any of the rights of remedies reserved to Owner pursuant to the provisions of the within described Lease. The undersigned further agrees that this Guaranty shall remain and continue in full force and effect as to the initial term hereof only. As a further inducement to Owner to make said Lease and in consideration thereof, Owner and the undersigned agree that in any action or proceeding brought by either Owner or the undersigned against the other on any matters whatsoever arising out of, under, or by virtue of the terms of said Lease, or of this Guaranty, that Owner and the undersigned shall and do hereby waive trial by jury: Dated: 9"-f S _ d' C.' • Witne es: /1 By: William Thiesen C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 25 be deemed and taken to mean each and every person or party mentioned as a Tenant herein, be the same one or more; and if there shall be more than one Tenant, any notice required or permitted by the terms of this lease may be given by or to any one thereof, and shall have the same force and effect as if given by or to all thereof. The use of the neuter singular pronoun to refer to Owner or Tenant shall be deemed a proper reference even though Owner or Tenant may be an individual, a partnership, a corporation, or a group of two or more individuals or corporations. The necessary grammatical changes required to make the provisions of this lease apply in the plural sense where there is.more than one Owner or Tenant and to either corporations, associations, partnerships, or individuals, males or females, shall in all instances be assumed as though in each case fully expressed. SECTION 24.10 Broker's Commission. • 4• Each of the parties represents and warrants that there are no claims for brokerage commissions or finder's fees in connection with the execution of this lease, except as listed below, and each of the parties agrees to C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 23 ed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Owner may at any time thereafter elect to terminate this lease for such previous breach. Should Owner at any time terminate this lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the leased premises, reasonable attorney's fees, and including the amount of rent and charges. equivalent to rent reserved in this lease for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant• to Owner. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • • LEASE RIDER SECTION 24.18 Option to Renew. Provided Tenant is not otherwise in default under any of the terms and conditions of this Lease. Tenant shall have a single option to extend the initial term of this Lease upon the same terms and conditions as those herein specified for three additional renewal•periods of five (5). years each from the expiration of the initial term by delivering to Owner written notice of Tenant's exercise of said option at ,least six (6) months prior to the expiration of such initial term, and if Tenant gives such notice within the time prescribed, this Lease shall be extended automatically, without execution of an extension or renewal lease. PROVIDED, HOWEVER, the minimum rent as specified hereinbefore under Section 2.01 of the Lease, shall be adjusted upward at the beginning of the first renewal period and each subsequent lease year during each renewal period in the proportion that the Consumer Price Index for that month in which the prior lease year, or renewal lease year, whichever may apply, expires has increased over said Index for the month in which said lease year commenced. The Index referred to shall be the Consumer Price, "All Urban Consumer's" as published by the United States Department of Labor, Bureau of Labor Statistics, based on all items for the period 1982-84=100. If there shall be no Consumer Price Index, the Statistical Index most similar thereto shall be used and any necessary adjustments shall be made in order to carry out the intent and purpose of this paragraph. SECTION 24.19 Prohibited Uses. Owner shall not directly or indirectly, own, operate or grant any lease or permit any assignment or sublease for, a store (or any portion of a store) in the Shopping Center or on any real estate owned by Landlord or any Affiliates, and located within one (1) mile of the Shopping Center (the "Restricted Area")'. which permits the sale or offering for sale of groceries including, without limitation, food products, alcohol, dry groceries such as household products and paper goods (such as toilet paper, napkins, paper towels arid refuse bags) , and other items typically and primarily sold in supermarkets, such 'as meats, poultry, seafood, dairy products, fruits, vegetables or baked goods (the. "Restricted Products"), provided that the foregoing shall not prohibit the operation of (i) a convenience store not to exceed 5,000 square feet outside of the Real Property, or (ii) specialty stores of ,000 square feet or less primarily carrying one or more of .such products such as bagels, ice cream or coffee shops. In addition, the foregoing shall not prohibit the sale of Restricted Products (other than alcohol, the sale of which for off-site consumption by any part other than Baker's on the Real Property is prohibited) by a business within the Restricted Area if the Restricted Products are displayed for sale in an area which does not exceed the lesser of (i) 1,500 square feet or (ii) ten percent (10%) of the area of such business. SECTION 24.20 Amortization of Improvements Upon completion of Tenant's improvements in accordance with the provisions, Owner shall advance to the Tenant Five Hundred Thousand Dollars ($500,000.00) . Tenant shall repay Owner the sums advanced together with interest thereon amortised over the initial term of this Lease as Additional Rent pursuant to Section 2.05. The rate of interest shall be the greater of 10.5%. or Owner's cost of funds, as such sli'all be determined. Owner shall notify Tenant when and if the rate of interest adjusts. SECTION 24.21 Signage Tenant shall have the right to place a monument sign on Lot 5 at Tenant's sole cost and expense subject to restrictions of record and approval of Owner and the Lakeside Hills Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • the date Tenant erected the sign until Tenant receives payment before any such sign can be posted, which signs will be. Tenant's monument sign will be ' allowed to be at least as tall as the First National Bank of Omaha monument sign. If Tenant's sign is 15 feet tall or less, then only one other tenant sign will be allowed below Tenant's sign (in which case, that tenant would reimburse Tenant for 50% of Tenant's cost) . If Tenant is able to have a sign in excess of 15 feet, then two other .tenant signs would be allowed below Tenant's sign, and costs prorated accordingly. Additionally, Tenant will be allowed to have marquee signs on the north, west and south upper exterior walls of the leased premises, subject to Owner's approval of their design. SECTION 24.21 Customer Pickup Parking Five parking spaces at curbside convenient to the main entrance of the premises shall be designated as fifteen minute parking. Tenant shall provide appropriate signage. SECTION 24.23 Provided Tenant is not :in default pursuant to the terms of this lease, Owner shall not lease to any other tenant, the primary use of which is the same as that set forth in Section 6.01 above. . SECTION 24.24 Provided Tenant has delivered details of Rooftop HVAC unit size and location, store front design and utility plans to Owner not later than September 22, 2000, Tenant shall be allowed access to the premises to commence Tenant's work not later than November 1, 2000. SECTION 24.25 Entire Agreement. Except as hereinbefore specifically amended, all the provisions of said Indenture of Lease referred to hereinabove shall remain in full force and effect. LAKESIDE PLAZA, L.P. , a Nebraska limited partnership By: LAKESIDE PLAZA, INC., A Nebraska Corporation Attest: General Partner Title: I CSiCCa�l{ BBQ Ventures of Nebraska LLC, a Nebraska limited liability company D/B/A Famous Dave's Restaurant Attest a-se ' � ' � � By: C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 27 s, paper towels arid refuse bags) , and other items typically and primarily sold in supermarkets, such 'as meats, poultry, seafood, dairy products, fruits, vegetables or baked goods (the. "Restricted Products"), provided that the foregoing shall not prohibit the operation of (i) a convenience store not to exceed 5,000 square feet outside of the Real Property, or (ii) specialty stores of ,000 square feet or less primarily carrying one or more of .such products such as bagels, ice cream or coffee shops. In addition, the foregoing shall not prohibit the sale of Restricted Products (other than alcohol, the sale of which for off-site consumption by any part other than Baker's on the Real Property is prohibited) by a business within the Restricted Area if the Restricted Products are displayed for sale in an area which does not exceed the lesser of (i) 1,500 square feet or (ii) ten percent (10%) of the area of such business. SECTION 24.20 Amortization of Improvements Upon completion of Tenant's improvements in accordance with the provisions, Owner shall advance to the Tenant Five Hundred Thousand Dollars ($500,000.00) . Tenant shall repay Owner the sums advanced together with interest thereon amortised over the initial term of this Lease as Additional Rent pursuant to Section 2.05. The rate of interest shall be the greater of 10.5%. or Owner's cost of funds, as such sli'all be determined. Owner shall notify Tenant when and if the rate of interest adjusts. SECTION 24.21 Signage Tenant shall have the right to place a monument sign on Lot 5 at Tenant's sole cost and expense subject to restrictions of record and approval of Owner and the Lakeside Hills Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • • STATE OF ``�Q-9 k COUNTY of l/OC 10-5) )s s. 'BEFORE ME the ^^u``n__derddsigned Notary Public in and for said county personally appeared '�c`D 'T . vAl-c 1 to me known to be\1L� e5 dfl It LAKESIDE PLAZA, INC., a Nebraska Corporation, and whose signature is affixed to the foregoing Lease as Owner, and being first duly sworn acknowledged execution of the same to be his voluntary act and deed and the voluntary act and deed of said corporation. Dated this IS • day of -5.;:, " - , 2000. G{- I tat„" Notary Public My Commission expires: I.�2��3 • • LISA A.NAYLCN i h' .,..� my Comm.6A;Nov.2&.2 STATE OF ite494Ca44' ) , )ss COUNTY OF ,,'—�"eeff .',z~'" ) BEFORE ME the undersigned Notary Public in and for said County personally appeared ��"� '�` �`��''' -'—' , to me known to be a member of BBO Ventures of Nebraska LLC, a Nebraska limited liability company, and signature is affixed to the foregoing agreement as Tenant, and he, being first duly sworn, acknowledged execution of the same to be his voluntary act and deed and the voluntary act and deed of said company. . IN WITNESS WHEREOF, I have hereunto affixed my hand and Notarial Seal this /`=Yx','day of -�' J ' , 20 'CC . GENERAL NORRY B of Nebraska' a !::.. INISJ.4fOTif k t/j( rs;�/�Ye/. ) I" ' My Cawn� k AN.21,200! i • NOTARY POkIC My commission Expires: • • • C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 8 a Nebraska limited partnership By: LAKESIDE PLAZA, INC., A Nebraska Corporation Attest: General Partner Title: I CSiCCa�l{ BBQ Ventures of Nebraska LLC, a Nebraska limited liability company D/B/A Famous Dave's Restaurant Attest a-se ' � ' � � By: C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 27 s, paper towels arid refuse bags) , and other items typically and primarily sold in supermarkets, such 'as meats, poultry, seafood, dairy products, fruits, vegetables or baked goods (the. "Restricted Products"), provided that the foregoing shall not prohibit the operation of (i) a convenience store not to exceed 5,000 square feet outside of the Real Property, or (ii) specialty stores of ,000 square feet or less primarily carrying one or more of .such products such as bagels, ice cream or coffee shops. In addition, the foregoing shall not prohibit the sale of Restricted Products (other than alcohol, the sale of which for off-site consumption by any part other than Baker's on the Real Property is prohibited) by a business within the Restricted Area if the Restricted Products are displayed for sale in an area which does not exceed the lesser of (i) 1,500 square feet or (ii) ten percent (10%) of the area of such business. SECTION 24.20 Amortization of Improvements Upon completion of Tenant's improvements in accordance with the provisions, Owner shall advance to the Tenant Five Hundred Thousand Dollars ($500,000.00) . Tenant shall repay Owner the sums advanced together with interest thereon amortised over the initial term of this Lease as Additional Rent pursuant to Section 2.05. The rate of interest shall be the greater of 10.5%. or Owner's cost of funds, as such sli'all be determined. Owner shall notify Tenant when and if the rate of interest adjusts. SECTION 24.21 Signage Tenant shall have the right to place a monument sign on Lot 5 at Tenant's sole cost and expense subject to restrictions of record and approval of Owner and the Lakeside Hills Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. 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SECTION 24.21 Signage Tenant shall have the right to place a monument sign on Lot 5 at Tenant's sole cost and expense subject to restrictions of record and approval of Owner and the Lakeside Hills Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • • EXHIBIT "A" SITE PLAN • C:\COFFEY\LEASE\LAKESZDE.FAMOUSDAVES\9100 2 9 Section 24.13 Recording FEB 24 2011 Section 24.14 Rider Section 24.15 Exhibits NEBRASKALIQUOr ,ntMtTonr rvvismtectni • • • C:\COFFEY\LEASE\LARESIDE.FAMOUSDAVES\9100 4 TENANT BBO Ventures of Nebraska LLC, a Nebraska • • Limited Liability Company D/B/A Famous Dave's Restaurant DATE 9/12/00 • • • • • • • C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 ' : CARMAN JOHNSON, LIQUOR CLERK I v • EXHIBIT'IBI DESCRIPTION OF OWNER'S AND TENANT'S • WORK AND ALLOWANCE PROVISIONS • I. The following work shall be done for or by the Owner, except as otherwise specified. All work shall be performedin a competent and workmanlike manner and shall be in accordance with all: local, state and federal building requirements. • A. STRUCTURE: • 1. Frame: A structural frame of steel, concrete and/or masonry construction or any combination thereof, with a floor and roof design to carry live loads in accordance with applicable building codes. 2. Roof: The roof shall be E.P.D:M. or such other material as selected by Project Architect. 3. Exterior Walls: Exterior walls of the Shopping Center shall be of noncombustible construction and of finish as designed by Owner or Owner's architect. 4. Floors: Floors shall be concrete floors within the leased premises. Owner shall pour 10 foot along exterior walls according to plans provided to Tenant. Any additional cost shall be the responsibility of Tenant. 5. Ceiling: To be provided by Tenant, as required. 6. Exterior Rear Wall: Shall be glass storefront. B. COMMON AREA AND SERVICE: 1. Parking Lot, Rampways, Sidewalks: Such areas, as shown on Exhibit "A" shall be lighted, surfaced, and landscaped as determined by Landlord. C. UTILITIES: 1. Electrical Service: The Owner :shall provide an empty 1 ' " or larger conduit from meter center to Tenant space. Owner shall also provide a Separate meter panel to be located within a common utility room. The cost for meters and installation shall be Tenant's responsibility. 2. Water and Sanitary Sewer: The Owner shall bring to the leased premises a 3/4" valved and capped cold water pipe. Owner shall construct a 4" sanitary sewer line across the middle of Tenant's space. (See plans provided to Tenant. ) The lavatory and water closet fixtures and all additional improvements constructed shall be provided Tenant's responsibility. 3. Heating, Ventilating, and Air Conditioning (HVAC) service: Owner shall provide and install the required rooftop HVAC equipment and ducts through the roof. :Equipment will be sized to provide minimum of 1 ton per 400 square feet of cooling capacity within the leased premises. 4. Gas: Owner shall provide gas. main, and gas piping to the individual HVAC rooftops units only. The cost for any 3 0 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 1 It I lkiglikelo . . .g illi.1 1 kos\"*P. . ,11. . ',.,..•• i - I NE - Li I , 'Afiv, * •,--. ' , 7 el; •k •=1 • ._...A• • . •,-..,•-• ...,..„,.0 .t .. • A l, • • r---,- --.."." -----•I'''' • ......---- __ .,— 1 1 •• t •I•1 \ , • Z ,., , .. t• I • . • , " i • c• - • • . . • 111111.1/1 ; Iltigg6 • r SITE PUN . • LAKESIDE PIRA 7'• IIIIIII 111 Poe.vs....6041.1•••••NO....1.tea.6...66. • PM Pia KST 09M3 OD WM.IINOCIA .. . •• . • • • l notify Tenant when and if the rate of interest adjusts. SECTION 24.21 Signage Tenant shall have the right to place a monument sign on Lot 5 at Tenant's sole cost and expense subject to restrictions of record and approval of Owner and the Lakeside Hills Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • • • deviation from gas meters and installation shall be tenant's sole responsibility. D. STORE FRONT: • Store shall be designated by Project Architect and installed by Landlord. E. FIRE PROTECTION: Automatic sprinklers for fire protection shall be installed in the leased premises as required by applicable building codes with heads turned up. Any modification§ to the sprinkler system or heads turned up within the leased; premises required by Tenant's work shall be done by Owner's contractor, at the expense of Tenant. F. GENERAL: Owner shall have the right to run roof drainage lines, utility lines, pipes, conduits, duct:, work and/or component parts of all • mechanical and electrical systems where necessary or desirable through attic space, column space or other parts of the leased premises, to repair, alter, replace or remove the same, and to require Tenant to install 'and maintain proper access panels thereto. G. CONSTRUCTION CREDITS: If Tenant elects to accept construction credits in lieu of any Landlord's work as herein described, the amount of such credit shall be defined by letter from Owner's Tenant Finish Coordinator. II. Tenants Work: All work required to complete and place the leased premises in finished condition for opening for business, except that work described in Owner's Work, is to be completed by Tenant, at Tenant's expense. All work shall be done in accordance with all local, state and federal building requirements, A. FIELD VERIFICATIONS: It shall be the Tenant's responsibility to field verify all conditions. B. PARTITIONS BETWEEN TENANT AREAS: Partitions between leased areas shall be framed with metal studs and as approved by Owner C. INTERIOR WALLS: All interior walls (including partitions and curtain walls other than partitions separating leased premises) shall be framed with metal studs. D. INTERIOR PAINTING: All interior painting•and decoration including taping and spackling of all interior partitions where required. E. PLUMBING: All plumbing, water meter and plumbing fixtures shall be installed according to the Nebraska State Plumbing Code. 3 1 C:\COFFEY\LEASE\LAKESIDE_FAMOUSDACES\9100 ide minimum of 1 ton per 400 square feet of cooling capacity within the leased premises. 4. Gas: Owner shall provide gas. main, and gas piping to the individual HVAC rooftops units only. The cost for any 3 0 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 1 It I lkiglikelo . . .g illi.1 1 kos\"*P. . ,11. . ',.,..•• i - I NE - Li I , 'Afiv, * •,--. ' , 7 el; •k •=1 • ._...A• • . •,-..,•-• ...,..„,.0 .t .. • A l, • • r---,- --.."." -----•I'''' • ......---- __ .,— 1 1 •• t •I•1 \ , • Z ,., , .. t• I • . • , " i • c• - • • . . • 111111.1/1 ; Iltigg6 • r SITE PUN . • LAKESIDE PIRA 7'• IIIIIII 111 Poe.vs....6041.1•••••NO....1.tea.6...66. • PM Pia KST 09M3 OD WM.IINOCIA .. . •• . • • • l notify Tenant when and if the rate of interest adjusts. SECTION 24.21 Signage Tenant shall have the right to place a monument sign on Lot 5 at Tenant's sole cost and expense subject to restrictions of record and approval of Owner and the Lakeside Hills Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • C • • F. FURNISHING, FIXTURES AND SIGNS: All furnishings, trade fixtures, signs and related parts, shall be of new first quality material. Installation location and design of all signs are subject to prior written consent of Owner as provided in Paragraph III B. G. HOT WATER HEATER: Domestic hot water heater •where required shall be electric, automatic and less than 6 gallon capacity. If space use dictates a heater with a capacity ih excess of 6 gallons, Tenant must receive Owner's prior approval. All heaters shall be automatic, properly vented and with all necessary safety controls. The relief valve must be piped to an open drain. Special metering for any heater shall be included by Tenant if required by Owner. H. GREASE PAN: For tenants requiring a grease exhaust hood, the Tenant shall furnish and.install an appropriately sized grease pan around the roof opening to protect the Owner's roof from grease damage. Maintenance of this grease pan is Tenant's responsibility. I. FLOORS: • • All floor coverings and floor finishes. Tenant is permitted no depressions from the established floor level. J. ELECTRICAL WORK: • Tenant shall furnish and install all additional electrical work from the meter center into the leased premises except that work described in Owner's Work. Tenant shall provide electrical conduits wiring and boxes in the concrete floor slab as required to permit laying of concrete floor by Owner, in accordance with Owner's construction schedule. Tenant shall furnish and install all systems, where required, for telephones, inter-communication, music, antenna, material handling or conveyor, burglar alarm, vault wiring, fire protection alarm and clock, and time clocks, conductors and all necessary disconnect switches for all motors required by Tenant, including. exterior signage. All work shall be done in accordance with the 1984 National Electrical Code. K. GAS: Tenant shall install and furnish any resized gas meter or piping and any additional gas piping from the meter, or shall reimburse Owner the cost of said metering and additional piping. L. HEATING, VENTILATING, AND AIR-CONDITIONING (HVAC) SERVICE: Tenant shall furnish and install metal supply and return duct work throughout the leased premises, (the use of attic space as a return air plenum or duct board as supply and return duct work is not permitted) , and shall be responsible for locating and wiring any thermostat controls for the HVAC units as provided for by Owner. Any additional equipment, make-up systems, and/or exhaust systems shall be furnished. and installed by Tenant. M. TEMPORARY SERVICES: During Tenant's construction period Tenant shall provide and pay for heat, temporary connections and meters for water, gas, and electric service brought to such point. Tenant shall pay for all C:\COFFEY\LEASE\LAHESIDE.FAMOUSDAVES\9100 32 Z ,., , .. t• I • . • , " i • c• - • • . . • 111111.1/1 ; Iltigg6 • r SITE PUN . • LAKESIDE PIRA 7'• IIIIIII 111 Poe.vs....6041.1•••••NO....1.tea.6...66. • PM Pia KST 09M3 OD WM.IINOCIA .. . •• . • • • l notify Tenant when and if the rate of interest adjusts. SECTION 24.21 Signage Tenant shall have the right to place a monument sign on Lot 5 at Tenant's sole cost and expense subject to restrictions of record and approval of Owner and the Lakeside Hills Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • . t electricity, 'gas and water during this period. N. CHANGES AND ALTERATIONS: • Owner reserves the right to require changes in Tenant's work when necessary by reason of code requirements or directives of governmental authorities having jurisdiction over the leased premises. O. GENERAL PROVISIONS: All work done by Tenant shall be governed in all respects by, and shall be subject to the following: 1. Tenant agrees not to commence -Tenant's work until Tenant has secured Owner's written approval of the plans and specifications requiredto be submitted by Tenant to Owner. Owner agrees to notify; Tenant in advance of the day when Tenant must commence Tenant's Work and Tenant agrees that Owner may require Tenant, subject to such notice, to commence Tenant's Work before Owner's Work has been fully completed, provided that the leased premises and the building of which the leased premises are a part are completed to the extent that it is practicable for Tenant to commence Tenant's Work. Tenant Work shall be coordinated with the work being done by the Owner and/or other tenant's of Owner to such a degree that such work will not interfere with or delay the completion of work by Owner and/or other tenant's of Owner. Owner shall have the right to require Tenant, Tenant's Contractors, and Subcontractors to furnish a performance bond and other security in a form and in such amounts satisfactory to Owner for the prompt and faithful performance by Tenant of Tenant's Work. Such performance bond(s) shall name Owner or such other successors or assigns of Owner. The performance of Tenant's Work shall cause no interference whatsoever with the completion of Owner's Work in the leased premises or in the remainder of the Shopping Center. 2. Tenant's Work shall be performed in a first-class workmanlike manner and shall be in good and usable condition at the date of completion thereof. Tenant shall require any such party to be responsible for the replacement or repair without additional charge of any;and all work done or furnished by or through such party which shall become defective within one (1) year after substantial completion of the Work. The correction of such Work shall include without additional charge, all expenses and damages in connection with such removal, replacement, or repair of any part of the Work which may be damaged or disturbed thereby. All warranties or guarantees as to materials or workmanship on or with respect to Tenant's Work shall be contained in the contract or subcontract which shall be so written that•such guarantees or warranties shall inure to the benefit of both Owner and Tenant, as their respective interests appear, and can be directly enforced by either. Tenant covenants and agrees to give Owner any assignment or other assurances necessary to effect the same. 3. Owner shall have the right (but shall not be obligated) to perform by its own contractor or subcontractor, on behalf of and for the account of Tenant any Tenant's Work which Owner determines should be so performed. Specifically, such work shall include areas which affect any structural components of or the general utility systems for the building in which the leased premises are located. If Owner so determines, it shall • C:\COFFEY\LEASE\LAKESIDE.FAMOGSDAVES\9100 33 f the rate of interest adjusts. SECTION 24.21 Signage Tenant shall have the right to place a monument sign on Lot 5 at Tenant's sole cost and expense subject to restrictions of record and approval of Owner and the Lakeside Hills Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • , d so notify Tenant prior• to the commencement of such work. Tenant shall promptly, : on demand, reimburse Owner for all costs of planning and performing such work when and as incurred by Owner and for all permits in connection therewith. 4. Compliance with laws: All Tenant's Work shall conform to applicable statutes ordinances, regulations, codes and the requirements of Owner's fire underwriter. Tenant shall obtain and covey to Owner all approvals with respect to electrical, gas, water heating, and cooling, and telephone work, all as may be required by the utility company supplying the service. • 5. Approvals: No approvalsiby Owner shall be deemed valid unless the same shall be in writing signed by Owner or Owner's architect. 6. Insurance: Prior to commencement of Tenant's Work and until completion thereof, or commencement of the lease term, whichever is the last to occur, Tenant shall effect and • • maintain, and provide certificates for insurance policies of Builder's Risk Insurance covering Owner, Owner's Lender, Tenant and Tenant's contractors, as their interests may appear, against loss or damage by fire, vandalism and malicious, mischief and such other risks as are customarily covered by a so-called "extended coverage endorsement" upon all Tenant's Work in place and all materials stored at the site of Tenant's Work and all materials, equipment, supplies and temporary structures of all kinds incident to Tenant's Work and builder's machinery, tools and equipment, all while forming a part or contained in, such improvements or temporary structures, while on the leased premises or within 100 feet thereof, or when adjacent thereto while on malls, drives, sidewalks, streets or alleys, all to the full insurable value thereof at all times. I•n addition, Tenant agrees to require• all contractors and subcontractors engaged in the performance of Tenant's Work to effect and maintain and deliver to Tenant certificates evidencing the existence of, such policies prior to the commencement of Tenant's Work and until completion thereof. • III. Design Criteria for Tenant's architectural standards and Tenant's Sign; A. TENANT'S ARCHITECTURAL STANDARD: 1. Within thirty (30) days after the execution of this Lease, Tenant shall'submit to Owner for Owners approval the proposed design of Tenant's space along with Tenant's signing and materials to be utilized: • B. TENANT'S SIGNS: 1. Tenant shall erect a store identity sign only and use the following sign criteria: See Exhibit "F" IV. Allowances provided for by Owner. . A. Owner shall reimburse Tenant the total amount of $84,000.00 toward the cost of preparing the leased premises as set out in Section II and III hereof. B. All reimbursements are contingent on: Owner/Owner's architect approval of all designs, plans, and specifications, Owner receiving satisfactory proof that contractors, subcontractors and suppliers have been paid in full and that no liens or third party claims remain outstanding. • 3 4 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 _ ll include areas which affect any structural components of or the general utility systems for the building in which the leased premises are located. If Owner so determines, it shall • C:\COFFEY\LEASE\LAKESIDE.FAMOGSDAVES\9100 33 f the rate of interest adjusts. SECTION 24.21 Signage Tenant shall have the right to place a monument sign on Lot 5 at Tenant's sole cost and expense subject to restrictions of record and approval of Owner and the Lakeside Hills Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • P • C. Owner shall reimburse Tenant within thirty (30) days after the last occurrence of: 1. Commencement of the lease term. 2. Receipt of all final lien waivers evidencing Tenant's payment in full of all Tenant's•preparation costs. • • • • • • • • • • • • • • C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 • 35 • • • • C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 ' : CARMAN JOHNSON, LIQUOR CLERK REC.; W FEB242011 • EXHIBIt ,tC" NEBRASKPW%UU J rnurollr nhR�Roe*"' Lots 5, 10, 11, 12,13 and 14 inclusive •being a part of the replatting of all Lots •44 thru 47, inclusive, together with part of Lots 48 thru 54, inclusive, in Lakeside Hills, a subdivision as surveyed, platted and recorded in Douglas County, Nebraska. BBQ Ventures of Nebraska LLC, a Nebraska Limited Liability Company D/B/A Famous Dave's'Restaurant, Tenant • • • • • • • • • • C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 36 • RECEIVE EXHIBIT-"D" FEB 2 4 2011 RULES AND REGULATIONS • TENANT AGREES AS FOLLOWS: • NEBRASKA LiQU (1) All loading and unloading of goods shall be done only at such times, in the areas, and through the entrances, designated for such purposes by Owner. • (2) The delivery or shipping of Merchandise, supplies and fixtures to and from the leased premises shall be subject to such rules and regulations as in the judgement of Owner are necessary for the proper operation of the leased premises or Shopping Center. (3) All garbage and refuse shall be kept in the kind of container specified by Owner, and shall be placed outside of the premises prepared for collection in the manner and at the times and places specified by Owner. If Owner shall provide or designate a service for picking up refuse and garbage, Tenant shall use same at Tenant's cost. Tenant shall pay the cost of removal of any of Tenant's refuse or rubbish. (4) No radio, television, satellite dish, or other similar device shall be installed without first obtaining in each instance Owner's consent in writing. No aerial shall be erected on the roof or exterior walls of the premises, or on the grounds, without in each instance, the written consent of Owner. Any aerial so installed without such written consent shall be subject to removal without notice at any time. (5) No loud speakers, televisions, phonographs, radios or other devices shall be used in a manner so as .to be heard or seen outside of the leased premises without the prior .written consent of Owner. (6) If the leased premises are equipped with heating facilities separate from those in the remainder of the Shopping Center, Tenant shall keep the leased premises at a temperature sufficiently high to prevent freezing of water in pipes; and fixtures. (7) The outside areas immediately adjoining the leased premises shall be kept clean and free from snow and ice, dirt, and rubbish by Tenant to the satisfaction of Owner, and Tenant shall not place or permit any" obstructions or merchandise in such areas. (8) Tenant and Tenant's employees. shall park their cars only in those portions of the parking area designated for that purpose by Owner. Tenant shall furnish ' Owner with` State automobile license numbers assigned to Tenant's car or cars and cars of Tenant's employees, within five (5) days after taking possession of the premises and shall thereafter notify Owner of any changes within five (5) days after such changes occur. In the event that tenant or its employees fail to park their cars in designated parking areas as aforesaid, then Owner, at its option shall charge Tenant Ten Dollars ($10.00) per day per car parked in any area other than those designated, as and for liquidated damage. (9) The plumbing facilities shall not be used for any other purpose than that for which they are constructed, and no foreign substance of any kind shall be thrown therein, and the expense of any breakage, stoppage, or damage resulting from'.a violation of this provision shall be borne by Tenant, who shall, or whose employees, agents or invitees shall have caused it. (10) Tenant shall use at Tenant's cost such pest extermination contractor as Owner may direct and at such intervals as Owner may require. • • C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 37 IDE.FAMOGSDAVES\9100 33 f the rate of interest adjusts. SECTION 24.21 Signage Tenant shall have the right to place a monument sign on Lot 5 at Tenant's sole cost and expense subject to restrictions of record and approval of Owner and the Lakeside Hills Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • (11) Tenant shall not use the public or common area in the Shopping Center for business purposes. (12) Tenant shall not place displays, decorations or shopping carts in front of the leased premises or ifi any common areas. (13) Owner may amend or add new rules and regulations not inconsistent with the terms of Tenant's lease. • • FEB 24 2ui( NEimpisKALAQUOh CONTROL OOMMISAIm • • • • • 38 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 • • • • • C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 36 4 EXHIBIT "G" SIGN CRITERIA This criteria has been established for ithe purpose of assuring an outstanding shopping center and for the mutual benefit of all tenants. Conformance will be strictly enforced and any nonconforming installation or unapproved sign must be brought into conformance at the expense of the tenant. A. General Requirements 1. Each tenant shall submit or cause to be submitted to the landlord before fabrication, four (4) copies of detailed sign drawings for approval. Drawings shall include location, size, layout, method of attachment, design and color of the proposed sign including all lettering and/or graphics. Tenant should note that approval action may take one or two weeks. Notwithstanding, no manufacturing or installation will be permitted without proper approvals. 2. All permits for signs and their installation shall be obtained by the tenant or tenant's representative. Tenant is responsible for compliance with all governmental criteria and fees.. 3. All signs shall be constructed and installed, including electrical hook-up, at tenant's expense. 4. All signs will be reviewed by the landlord for conformance with this criteria and overall design quality. Approval or disapproval of sign submittal based on esthetics or design shall remain the sole right of the landlord. S. All signs and their installation shall comply with all local building and electrical codes. 6. No projections above or below the sign limits will be permitted. Signs must be within limits indicated. 7. No script will be permitted unless it is part of an established trademark or tenant. 8. Working on signs shall not include the product sold except as part of tenants trade name or insignia. 9. No signs with the face perpendicular to the face of the building or storefront will be permitted. No "can" signs will be permitted. 10. Tenant is required to maintain signs in good working order at all times. Upon the termination of the tenant's lease, the tenant will remove his sign and repair any damaged EIFS caused by the sign to a condition acceptable to the Landlord. All repairs to exterior EIFS (Exterior Insulation Finish System). must be performed by and EI£S contractor acceptable to the Landlord. 11. Except as provided herein, no advertising placards, banners, pennants, names, insignia, trademarks, or other descriptive material shall be affixed or maintained upon the glass panes and supports of the show windows and doors of upon the exterior walls of building or within 24 inches of the show windows. 12. Each tenant who has a non-customer door for receiving merchandising may have, as approved by the landlord in 2 inch high block letters, the tenant's name and address. Where more than one tenant uses the same door, each name and address shall be applied. Color or letters will be as selected by the landlord. B. Materials 1. The height of the sign shall be maximum of 36 inches and the depth from the back of sign to face shall be a maximum of five inches. 2. All sign lettering shall be' internally illuminated, pan channel letters with 1" dark bronze trim. Returns' to be painted Dark Bronze. 3. All signs must be UL approved. 60 MA transformers on all mercury C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 39 Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • 0 • • (argon gas) tubing. 30 MA transformers May be used on red (neon) tubing. 4. The width of tenant's fascia sign shall not exceed 75 percent of the width of the store or shop and ,shall be centered within the tenant's .space. • 5. All signs shall be individual 'letter type mounted as required by this exhibit. 6. No exposed lamps, transformers, tubing, raceways, crossover, • conductors or conduit will be permitted.: 7. No audible, flashing of animated sighs will be permitted. B. Letter fastening clips are to be concealed and be of galvanized stainless or aluminum metals. • 9. No labels will be permitted oh the exposed surface of signs, except those required by local ordinance which shall be placed in an . inconspicuous location. 10. Tenant shall install., on the .storefront the numbers for the street address in exact location stipulated by the landlord. Size, type and color of number shall be as stipulated by the landlord. C. Installation 1. Landlord will approve exact location of sign in relation to tenant's storefront width prior to any installation. 2. Tenant shall be responsible fOr the installation and maintenance of his signs. 3. Electrical service and hook-up to all signs shall be from tenant's meter at tenant's expense. 4. Raceway, conduits, transformers - and other equipment must be concealed by the fascia. 5. Tenant's sign contractors shall repair any damage caused by said contractor's work or by its agents or employees. 6. Tenant shall be liable for the operations of tenant's sign contractor. 7. All penetrations of the building structure required for sign installation shall be sealed in a watertight condition and shall be patched to match the adjacent EIFS finish. See paragraph A10. 8. Access to the building fascia :(for Tenant sign installation purposes) shall be from the tenant space across the soffit (ceiling) on the walkways provided by the Landlord. • • • C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAvES\9100 40 eptable to the Landlord. All repairs to exterior EIFS (Exterior Insulation Finish System). must be performed by and EI£S contractor acceptable to the Landlord. 11. Except as provided herein, no advertising placards, banners, pennants, names, insignia, trademarks, or other descriptive material shall be affixed or maintained upon the glass panes and supports of the show windows and doors of upon the exterior walls of building or within 24 inches of the show windows. 12. Each tenant who has a non-customer door for receiving merchandising may have, as approved by the landlord in 2 inch high block letters, the tenant's name and address. Where more than one tenant uses the same door, each name and address shall be applied. Color or letters will be as selected by the landlord. B. Materials 1. The height of the sign shall be maximum of 36 inches and the depth from the back of sign to face shall be a maximum of five inches. 2. All sign lettering shall be' internally illuminated, pan channel letters with 1" dark bronze trim. Returns' to be painted Dark Bronze. 3. All signs must be UL approved. 60 MA transformers on all mercury C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 39 Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • RECEIVES LESSEE'S ESTOPPEL , 753095 . FEB 2 4 2011 ' To: Principal Commercial Funding,its successors and assigns("Lender") do Principal Capital Management,LLC �EU�ASKALI( UOh 801 Grand Avenue • Des Moines,Iowa 50392-1360 `'ONTRo1 f nliAl1AISgj' r Attn: Commercial Real Estate Re: Lease(the"Lease")dated September 15,2000 between Lakeside Plaza.L.P.,a Nebraska limited partnership,as landlord("Lessor"),and BBO Ventures of Nebraska LLC,a Nebraska limited liability company d/b/a Famous Dave's Restaurant,as tenant("Lessee")of certain real property in the county of Douglas,state of Nebraska,having a street address of 17330 West Center Road,Omaha,Nebraska 68130(the"Property"). Lessee hereby certifies the following representations with respect to the Lease are accurate and complete as of the date hereof with the understanding that the Lender will rely upon the representations in connection with a loan to Lessor(the"Loan")and accepting an assignment of the Lessor's interest in the Lease as additional security for making the Loan: 1. The following are the pertinent terms of the Lease: a. Current Monthly Base-Minimum Rent: $9,250 b. Commencement Date: February 5,2001 c. Termination Date: February 28,2011 2. Lessee bas accepted the Property and taken possession thereof without any existing condition or qualification. Both Lessor and Lessee have completed and complied with all required conditions precedent to such acceptance and possession. 3. The monthly rent due is continuing and is not past due or delinquent in any respect. Lessee has not and shall not prepay any of the rents under the Lease more than one(1) month in advance. As of the date hereof Lessee has no defense as to its obligations under the Lease and asserts no set-off,claim or counterclaim against Lessor. 4. Neither Lessee nor Lessor is in default under the Lease. The Lease is in full force and effect and has not been supplemented or amended,except:Amendment to Lease dated December 3,2001,nor has any portion of the Property leased by Lessee been sublet,except: none. IN WITNESS WHEREOF,this certificate has been duly exAecuted and delivered by the authorized officers of the undersigned as of December 18,2001 ,200 (iii Of 1,‘,...- By: Name: William M.Theisen Title: President All repairs to exterior EIFS (Exterior Insulation Finish System). must be performed by and EI£S contractor acceptable to the Landlord. 11. Except as provided herein, no advertising placards, banners, pennants, names, insignia, trademarks, or other descriptive material shall be affixed or maintained upon the glass panes and supports of the show windows and doors of upon the exterior walls of building or within 24 inches of the show windows. 12. Each tenant who has a non-customer door for receiving merchandising may have, as approved by the landlord in 2 inch high block letters, the tenant's name and address. Where more than one tenant uses the same door, each name and address shall be applied. Color or letters will be as selected by the landlord. B. Materials 1. The height of the sign shall be maximum of 36 inches and the depth from the back of sign to face shall be a maximum of five inches. 2. All sign lettering shall be' internally illuminated, pan channel letters with 1" dark bronze trim. Returns' to be painted Dark Bronze. 3. All signs must be UL approved. 60 MA transformers on all mercury C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 39 Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • .1401 ''' .1(( ilr America's o.ive.,n. CUTCHALL MANAGEMENT CO. F ADRECEIV�E Legendary B-Que February 23, 2011 FEB242011 Va"dye ...-.BAKERY ..CAF _- Nebraska Liquor Control Commission NEBRASKALIQUOk 'V -: °' 301 Centennial Mall South CONT,a Attn: Randy Seybert OE .flllAAeICQrr PO Box 95046 g Lincoln, NE 68509-5046 RE: Application for Addition on Liquor License#76079 So1;TH,AFST Gill Dear Randy: ___t-,,;�-,,;,,;1; Attached please find our application for adding a "Sidewalk Café" to our I[Ftocx•r3om-rori]) current licensed location. Please let me know if there are any questions. Sincerely, 711017 .5720( \ '9t -, 6A-----) Bill Nervig Old Market Ventures, LLC CFO 402-558-3333 ext16 , 0Ology ' bill@cutchallmanagement.com m Ssitd• . �� Ic.rma ha .CAM 13305 Birch Dr—Suite 201 Omaha, Nebraska 68164 402-558-3333 Fax 402-558-1512 www.cutchallmanagement.com www.cateromaha.com interest in the Lease as additional security for making the Loan: 1. The following are the pertinent terms of the Lease: a. Current Monthly Base-Minimum Rent: $9,250 b. Commencement Date: February 5,2001 c. Termination Date: February 28,2011 2. Lessee bas accepted the Property and taken possession thereof without any existing condition or qualification. Both Lessor and Lessee have completed and complied with all required conditions precedent to such acceptance and possession. 3. The monthly rent due is continuing and is not past due or delinquent in any respect. Lessee has not and shall not prepay any of the rents under the Lease more than one(1) month in advance. As of the date hereof Lessee has no defense as to its obligations under the Lease and asserts no set-off,claim or counterclaim against Lessor. 4. Neither Lessee nor Lessor is in default under the Lease. The Lease is in full force and effect and has not been supplemented or amended,except:Amendment to Lease dated December 3,2001,nor has any portion of the Property leased by Lessee been sublet,except: none. IN WITNESS WHEREOF,this certificate has been duly exAecuted and delivered by the authorized officers of the undersigned as of December 18,2001 ,200 (iii Of 1,‘,...- By: Name: William M.Theisen Title: President All repairs to exterior EIFS (Exterior Insulation Finish System). must be performed by and EI£S contractor acceptable to the Landlord. 11. Except as provided herein, no advertising placards, banners, pennants, names, insignia, trademarks, or other descriptive material shall be affixed or maintained upon the glass panes and supports of the show windows and doors of upon the exterior walls of building or within 24 inches of the show windows. 12. Each tenant who has a non-customer door for receiving merchandising may have, as approved by the landlord in 2 inch high block letters, the tenant's name and address. Where more than one tenant uses the same door, each name and address shall be applied. Color or letters will be as selected by the landlord. B. Materials 1. The height of the sign shall be maximum of 36 inches and the depth from the back of sign to face shall be a maximum of five inches. 2. All sign lettering shall be' internally illuminated, pan channel letters with 1" dark bronze trim. Returns' to be painted Dark Bronze. 3. All signs must be UL approved. 60 MA transformers on all mercury C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 39 Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • PLANNING DEPARTMENT REPOR DATE: MARCH 1,2011 DUE DATE: M RCH 10, 2011 CITY COUNCIL HRG MARCH 22,2011 LOCATION: 17330 WEST CENTER ROAD LEGAL DESCRIPTION: TO ADD A SIDEWALK CAFÉ APPROX. 15' X 45' TO THE NORTH APPLICANT: OLD MARKET VENTURES,LLC,DBA"TWIN PEAKS" REQUESTED LICENSE OR ACTION: ADDITION TO THEIR PRESENT CLASS "I" LIQUOR LICENSE LOCATION NEW LOCATION(X)NEW OWNERSHIP () TYPE OF FACILITY: RESTAURANT THIS REQUEST DOES(X) DOES NOT() PERTAIN TO AN OUTSIDE AREA IF SIDEWALK CAFE: R-O-W-LEASE 14.- PERMITS OBTAINED �4-- IF OUTSIDE: OUTSIDE AREA IS ��A4- FEET FROM THE NEAREST RESIDENCE THIS PROPERTY IS ( X ) IS NOT ( ) WITHIN 0 HA'S CORPORATE LIMITS (If not,do not proceed-Notify the City Clerk's Office and return this form) ******************************************************************* ************************************ ANNEXATION DATE: ORDINANCE NO. C(Oniy J within last 24 months) EXISTING ZONING: "I./t 0 - EXITING LAND USE. eTAA-02 1 ADJACE T AND USE AN NG• i U 7 ` NORTH:' ( k D 17, 95 2 t c.T MU �� - 1 iS NW SOUTH: M �C b- � �� rn EAST: kA(/ ..t> V c� ` 10 (�.1 1' i G r l WEST: P/P-,D (-Tr�1L1 M0 PARKING S ALLS PROV ED: LIB/�TY2 i p C,V/�I�Z EXISTING USE DOESi DOES NOT( )COMPLY WITHNING REGULATIONS PLUMBING FIXTUR ��('�,r�S PROVIDED: .WOMEN'S ` 5_ r (< 'MEN'S� ( O Ua l DATE SUBJECT PROPERTY WAS POSTED: 3" (Rule#7) DISTANCE OF PROPOSED LICENSE TO ANY SCHOO ,CHURCH,OR CITY PARK: A)(.` DISTANCE OF PROPOSED LICENSE TO ANY EXISTI G LICENSE: /3 (State L w) DISTANCE OFANDPOSED LICENSE O ANY CHURC 0J SCHOOL . v K HOSPITALE FO THE AGED,INDIGENT OR VETERANS O.. COLLEGE OR UNIVERSITY q. 6-- . 1 I (Authorized Signature) (Date) Lease. The Lease is in full force and effect and has not been supplemented or amended,except:Amendment to Lease dated December 3,2001,nor has any portion of the Property leased by Lessee been sublet,except: none. IN WITNESS WHEREOF,this certificate has been duly exAecuted and delivered by the authorized officers of the undersigned as of December 18,2001 ,200 (iii Of 1,‘,...- By: Name: William M.Theisen Title: President All repairs to exterior EIFS (Exterior Insulation Finish System). must be performed by and EI£S contractor acceptable to the Landlord. 11. Except as provided herein, no advertising placards, banners, pennants, names, insignia, trademarks, or other descriptive material shall be affixed or maintained upon the glass panes and supports of the show windows and doors of upon the exterior walls of building or within 24 inches of the show windows. 12. Each tenant who has a non-customer door for receiving merchandising may have, as approved by the landlord in 2 inch high block letters, the tenant's name and address. Where more than one tenant uses the same door, each name and address shall be applied. Color or letters will be as selected by the landlord. B. Materials 1. The height of the sign shall be maximum of 36 inches and the depth from the back of sign to face shall be a maximum of five inches. 2. All sign lettering shall be' internally illuminated, pan channel letters with 1" dark bronze trim. Returns' to be painted Dark Bronze. 3. All signs must be UL approved. 60 MA transformers on all mercury C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 39 Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • • • 1111111111111 -,..- • aliall111111111111111111111111111111111•1111111111111.11111111111111111111=1 - �� Itr�s.ew 0iTiii6 -.f.,.5vw�..! .e;e .7:1 7 7a� tw;f9 Iiiin:1 I� ll 1fi 1111 IN �WIl19 ; I�� 9il lil® i !" � �m ■ I I■ ■l le ■ ■ ■ U imam . lialli 1110 arm 1=4DABLE"°" a• .•„mi : . rplikiliwiw"d". l u • i„ „wi 1•r =,,' IN ■1 / IlE rirgrati . • to _� 1 . IX VESTIBULE �� <ilp� W \. ./ . i. O VaW Talk NEW HOSTII. w • • ' • • • • • • • • • •'`` `'.' STAND • ", ,11:. Ex.w41TING ' •.�P, .\i�/ Y'07/ \* �/' t.3 .-a -- '1<s me :�, Ilk 0EX® MFNS n ,, i RESTR0Cti •i n. --lr' 5`I . a 1.mar mown,' w...c �■ : IXdNENB2.,-WN II , , RESiF0G11 NEW BAR o II 111111111111111 : 1 i_ul mmmtr !a I r ® ® ® 411 MPt III g!. 1-..,. I i 11 ii 0 .] i.Ex KItcHEN`I��a�w�� lii1�c. - o .F. 0 Q rt I EX.KITCHEN .. '3133 l Ita ,w I 1 O°' _i © I: • f DO El 0 ant ,L1—_1 rM I eM3... al_S 6 '_i` _I_ sem ! wi ■ ■ ■ ■ k MEMNM MIMI 0 y1 I �I I I L � k f marNENE . •a ill a r.", P. fill Mt ' Ex KITCHEN 11111.11 IM �E1 ■: �_ © — . °' Io�I.:„„ :' ' EX DINING L____„. 0 . 3,, i 1111 1 III I NI. Q. Y .,n,r.�....,.:.vs. vu..°�" , a`s oi• aat;�v._ ..r..,... .. r ZM1 �k': I `is' ;r QQ PL00R P1.14N _..:,..;...:x t,.,;.,,.. ) ah�.. ,;, SCALE:I/B'•p.p• ) X)( Area +o udd Old Mar ked V en4uies . LLC North n Dsa/ TH40. Peaks z m T:10 I133o west. Ce.,4e.- Rd 0F. m rr ow,ahq , N.E b213o O� co C) sr- 4 0 I� . cember 18,2001 ,200 (iii Of 1,‘,...- By: Name: William M.Theisen Title: President All repairs to exterior EIFS (Exterior Insulation Finish System). must be performed by and EI£S contractor acceptable to the Landlord. 11. Except as provided herein, no advertising placards, banners, pennants, names, insignia, trademarks, or other descriptive material shall be affixed or maintained upon the glass panes and supports of the show windows and doors of upon the exterior walls of building or within 24 inches of the show windows. 12. Each tenant who has a non-customer door for receiving merchandising may have, as approved by the landlord in 2 inch high block letters, the tenant's name and address. Where more than one tenant uses the same door, each name and address shall be applied. Color or letters will be as selected by the landlord. B. Materials 1. The height of the sign shall be maximum of 36 inches and the depth from the back of sign to face shall be a maximum of five inches. 2. All sign lettering shall be' internally illuminated, pan channel letters with 1" dark bronze trim. Returns' to be painted Dark Bronze. 3. All signs must be UL approved. 60 MA transformers on all mercury C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 39 Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • co CityofOmaha, Webras&a 1I Met 1819 Farnam—Suite LC 1 Wulf r "l d Omaha, Nebraska 68183-0112 0� �� - Buster Brown (402) 444-5550 ° City Clerk FAX (402) 444-5263 o4TFD FBB05t►1- March 9, 2011 • Old Market Ventures, LLC Application for an addition to your present Class Dba"Twin Peaks" "I" Liquor License location to add a sidewalk 17330 West Center Road café approx. 15' x 45' to the north Omaha,NE 68130 Dear Liquor License Applicant: This letter is notification that a hearing before the Omaha City Council on your application for liquor license has been set for March 22, 2011 . The City Council Meeting begins at 2:00 P.M. in the Legislative Chamber, (LC-4), Omaha/Douglas Civic Center, 1819 Farnam Street, Omaha, Nebraska. City Council Liquor Rule No. 6 states, "Each applicant for any type of license shall be personally present in the Council Chambers, in order that the Council may make inquiries, on the date of public hearing of the application for said license". Failure to be present at this Council Meeting is grounds to recommend denial of your application to the Nebraska Liquor Control Commission. If you are making changes to the type of business or the type of activities that will be operated on the new premises. Please complete and return the attached. Ordinance No. 37046, passed June 7, 2005, requires each applicant to submit a written statement describing all types of business or activities that will be operated on the premises in conjunction with the proposed license. Attached is the statement to be signed and returned (hand deliver, mail or fax) to the City Clerk's Office 7 days in advance of the public hearing. Sincerely yours, 644•194.1 Buster Brown City Clerk BJB:clj NI. Q. Y .,n,r.�....,.:.vs. vu..°�" , a`s oi• aat;�v._ ..r..,... .. r ZM1 �k': I `is' ;r QQ PL00R P1.14N _..:,..;...:x t,.,;.,,.. ) ah�.. ,;, SCALE:I/B'•p.p• ) X)( Area +o udd Old Mar ked V en4uies . LLC North n Dsa/ TH40. Peaks z m T:10 I133o west. Ce.,4e.- Rd 0F. m rr ow,ahq , N.E b213o O� co C) sr- 4 0 I� . cember 18,2001 ,200 (iii Of 1,‘,...- By: Name: William M.Theisen Title: President All repairs to exterior EIFS (Exterior Insulation Finish System). must be performed by and EI£S contractor acceptable to the Landlord. 11. Except as provided herein, no advertising placards, banners, pennants, names, insignia, trademarks, or other descriptive material shall be affixed or maintained upon the glass panes and supports of the show windows and doors of upon the exterior walls of building or within 24 inches of the show windows. 12. Each tenant who has a non-customer door for receiving merchandising may have, as approved by the landlord in 2 inch high block letters, the tenant's name and address. Where more than one tenant uses the same door, each name and address shall be applied. Color or letters will be as selected by the landlord. B. Materials 1. The height of the sign shall be maximum of 36 inches and the depth from the back of sign to face shall be a maximum of five inches. 2. All sign lettering shall be' internally illuminated, pan channel letters with 1" dark bronze trim. Returns' to be painted Dark Bronze. 3. All signs must be UL approved. 60 MA transformers on all mercury C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 39 Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • /2 //d/( ems Q 7t-JJi/ // NOTICE OF LIQUOR LICENSE APPLICATION This notice is to inform you that OLD MARKET VENTURES, LLC DBA "TWIN PEAKS" has applied for an ADDITION TO THEIR PRESENT CLASS "I" [On Sale beer,wine and liquor] LIQUOR LICENSE LOCATION TO ADD A SIDEWALK CAFÉ APPROX. 15' X 45' TO THE NORTH located at 17330 WEST CENTER ROAD The Omaha City Council will hold a public hearing regarding this application on Tuesday, MARCH 22, 2011 at 2:00 P.M. in the Legislative Chambers, Omaha/Douglas Civic Center at 1819 Farnam Street. Testimony will be received from interested parties at this • meeting. You may submit written testimony to the City Clerk, 1819 Farnam Street, Omaha, NE 68183 prior to the hearing date. Buster Brown City Clerk ALL REQUESTS FOR SIGN LANGUAGE INTERPRETERS (SIGNERS) WILL REQUIRE A MINIMUM OF 48 HOURS ADVANCE NOTICE. IF ALTERNATIVE FORMATS ARE NEEDED, ALL REQUESTS WILL REQUIRE A MINIMUM OF 72 HOURS ADVANCE NOTICE. PLEASE NOTIFY BUSTER BROWN, CITY CLERK,444-5557,IF ARRANGEMENTS NEED TO BE MADE. Commission. If you are making changes to the type of business or the type of activities that will be operated on the new premises. Please complete and return the attached. Ordinance No. 37046, passed June 7, 2005, requires each applicant to submit a written statement describing all types of business or activities that will be operated on the premises in conjunction with the proposed license. Attached is the statement to be signed and returned (hand deliver, mail or fax) to the City Clerk's Office 7 days in advance of the public hearing. Sincerely yours, 644•194.1 Buster Brown City Clerk BJB:clj NI. Q. Y .,n,r.�....,.:.vs. vu..°�" , a`s oi• aat;�v._ ..r..,... .. r ZM1 �k': I `is' ;r QQ PL00R P1.14N _..:,..;...:x t,.,;.,,.. ) ah�.. ,;, SCALE:I/B'•p.p• ) X)( Area +o udd Old Mar ked V en4uies . LLC North n Dsa/ TH40. Peaks z m T:10 I133o west. Ce.,4e.- Rd 0F. m rr ow,ahq , N.E b213o O� co C) sr- 4 0 I� . cember 18,2001 ,200 (iii Of 1,‘,...- By: Name: William M.Theisen Title: President All repairs to exterior EIFS (Exterior Insulation Finish System). must be performed by and EI£S contractor acceptable to the Landlord. 11. Except as provided herein, no advertising placards, banners, pennants, names, insignia, trademarks, or other descriptive material shall be affixed or maintained upon the glass panes and supports of the show windows and doors of upon the exterior walls of building or within 24 inches of the show windows. 12. Each tenant who has a non-customer door for receiving merchandising may have, as approved by the landlord in 2 inch high block letters, the tenant's name and address. Where more than one tenant uses the same door, each name and address shall be applied. Color or letters will be as selected by the landlord. B. Materials 1. The height of the sign shall be maximum of 36 inches and the depth from the back of sign to face shall be a maximum of five inches. 2. All sign lettering shall be' internally illuminated, pan channel letters with 1" dark bronze trim. Returns' to be painted Dark Bronze. 3. All signs must be UL approved. 60 MA transformers on all mercury C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 39 Association. Owners shall provide plans and specifications for said sign, which shall accommodate additional Tenants provided, however, Tenant's signage shall be in the top position. Said additional Tenants shall reimburse 'Tenant for their prorata share of the cost of the sign plus interest thereon at the rate of 10.5% per annum from C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 26 er. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual minimum and percentage rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three full calendar years, whichever period is shorter. C:\CO vEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 2 0 • � tri r O ~ v� �• ow a o n X pa W IvCDL' ... ,-, A.. , N O C� L. n O 0 ¢ ti On 0 � 0 ' ' w n0 -1_,_ —,.cs ,.$5.,. re, " ,.. \ ' 0 CD CD C. up 0 CA �'0 r ' cr ccx o 0' � 'I . .., 0 .. CONTROL OOMMISAIm • • • • • 38 C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 • • • • • C:\COFFEY\LEASE\LAKESIDE.FAMOUSDAVES\9100 36