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RES 2010-0486 - Addition of area to Brix Wine & Spirits Emporium RECEIV EgiATE OF NEBRASKA {i/ �iC1'00. ;','" Dave Heineman �g p NEBRASKA LIQUOR CONTROL COMMISSION �'� r 'aj_'' Governor 1Q AI "8 8 53 Hobert B. Rupe �,- = \yR� li. e^._� Executive Director 301 Centennial Mall South, 5th Floor CITY CLERK P.O. Box 95046 C M A H A, N E Lincoln, ska 79-5046 7151 OMAHA CITY CLERK �RnSk,�' Phone(402)471-2571 1819 FARNAM STREET, SUITE FC-1 Fax(402)471-2814 TRS USER 800 833-7352(TTY) OMAHA NE 68183 web address:http://www.lcc.ne.gov/ Dear.Clerk The above licensee has requested a/an ADDITION: LICENSE #: C-86041 LICENSEE NAME: Brixco Inc TRADE NAME: Brix Wine & Spirits Emporium ADDRESS: 255 N 170th St Omaha NE 68118- Douglas County - CONTACT PHONE: 402-880-8857-Dan Matuszek DESCRIPTION One story Irregular shaped bldg approx 157' x 36' READS: ADDING: New area approx 131' x 31' NEW LICENSE One story irregular shaped bldg approx 157' x 67' WILL READ: Please present this request to your CITY/ VILLAGE / COUNTY BOARD and send us a copy of their recommendation. If recommendation of denial or no recommendation is made, the Commission has no alternative but to cease processing this request. Sincerely, NEBRASKA LIQUOR CONTROL COMMISSION VOU Kristina Radicia Licensing Division Cc: file Janice M.Wiebusch Bob Logsdon Robert Batt Commissioner Chairman Commissoner An Equal Opportunity/Affirmative Action Employer Printed with soy ink on recycled paper 04-14-'10 10:02 FROM- 402-397-1293 T-049 P0001/0001 F-589 KELLEY&JERRAM,P.C. 7134 Pacific Street Omaha,Nebraska 68106 (402)397-1898 /(402)397-1293 Fax facsimile transmittal To: Liquor Control Commission Fax: 402-471-2814 City of Omaha 402-444.5263 From: Ginger Guilfoyle Date: 4/14/2010 Re: Brix Wine&Spirits Pages: 1 Please be advised that a error°curred on the recent Application for Addition submitted for Brix Wine& Spirits. The correct address is 225 North 170th Street, Omaha, Nebraska. THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS ATTORNEY PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF YOU ARE NOT THE • INTENDED RECIPIENT,OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR,PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ADDRESS VIA THE U.S.POSTAL SERVICE. end us a copy of their recommendation. If recommendation of denial or no recommendation is made, the Commission has no alternative but to cease processing this request. Sincerely, NEBRASKA LIQUOR CONTROL COMMISSION VOU Kristina Radicia Licensing Division Cc: file Janice M.Wiebusch Bob Logsdon Robert Batt Commissioner Chairman Commissoner An Equal Opportunity/Affirmative Action Employer Printed with soy ink on recycled paper LIQUOR LICENSED ESTABLISHMENT HISTORY LICENSE #C 86041 BRIXCO, INC 225 NORTH 170TH STREET 68116 991-9463 DBA BRIX WINE & SPIRITS EMPORIUM NLCC ORDERS OTHER ACTIVITIES 7-14-09- RES#745 GRANT WITH WAIVER OF BEER GARDEN FENCING REQUIREMENT VOTE 6-0-1 PASS *4-27-10-REQ ADD OF AN AREA APPROX 131'X 31'TO THE NORTH* LICENSED PREMISES 1 STY IRREGULAR SHAPED BLDG APPROX 157'X36' OFFICERS: PRES/MGR-DANIEL (KERRY) MATUSZEK, 5222 NORTH 193RD STREET, 68022 (H) 333- 3244 *SHRHLDRS -ROBERT CARLISLE; MICHAEL CASSLING; BES INVESTMENTS, LLC/BRADLEY (CHRISTINE) GOSCH; DAVID (LYNNE) POTTER; DARYL (PATRICIA) WITTSTRUCK; ANN EDMUNDS; JOHN (JANE) SHOOK; NIEL(CAROL) EDMUNDS; WILLIAM (KATHLEEN) GERBER & UNIVERSAL REAL ESTATE, LLC/KENNETH (BRIDGET) GORDMAN *CORP PHONE & FAX#'S -880-8857-FAX-445-4334 *ATTY-MIKE KELLEY-397-1898 Print Form APPLICATION FOR ADDITION TO LIQUOR LICENSE office Use NEBRASKA LIQUOR CONTROL COMMISSION 301 CENTENNIAL MALL SOUTH RECEIVED PO BOX 95046 •LINCOLN,NE 68509-5046 PHONE:(402)471-2571 2010 FAX:(402)471-2814 • Website: www.lcc.ne.gov SKA LIQUOR NEtappA Application: OON ' COM11(tISSlOC� TW • Must include processing fee of$45.00 made payable 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 • C 86041 LIQUOR LICENSE# - - - -. BRIXCO INC LICENSEE NAME — -- - -- -, IBRIX WINE&SPIRITS EMPORIUM TRADE NAME - -- — _ - - -- PREMISE ADDRESS • • • k2s5 NO 170TH ST • CITYOMAHA CONTACT PERSON DAN MATUSZEK PHONE NUMBER OF CONTACT PERSON,402-880-8857 y — • _ e ` Complete the following questions: • 1) Are you adding on to your building? L . Yes pg No • Include a sketeh.of the area to be added showing: • o existing building • O outside dimensions(in feet) o direction north 2) Are you adding an.outdoor area? L Yes L 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...) 1 • . • �� received • • 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? '._ - • Include a sketch of the area to be added showing: o existing building o outside dimensions (in feet) • o direction north MICHAEL KELLEY Print Name of Signature Signature of ' Rtgtik State ofNebrask'a gal represen ive of Licensee (approved by M. Messman) County of ✓eVe 4z..i, • The forgoing j strument was acknowledge before me this /5`r-S.. ot 016/e, Date /.A.diSI .ii• Ili . f77ture /Af x -'HHere GENERAL NOTARY-State of Nebraska GINGER GUILFOYLE - My Comm.Exp.Aug.15,2011. 2 IBRIX WINE&SPIRITS EMPORIUM TRADE NAME - -- — _ - - -- PREMISE ADDRESS • • • k2s5 NO 170TH ST • CITYOMAHA CONTACT PERSON DAN MATUSZEK PHONE NUMBER OF CONTACT PERSON,402-880-8857 y — • _ e ` Complete the following questions: • 1) Are you adding on to your building? L . Yes pg No • Include a sketeh.of the area to be added showing: • o existing building • O outside dimensions(in feet) o direction north 2) Are you adding an.outdoor area? L Yes L 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...) 1 • . • �� received • i I\--\-",1 , : --2"-- ! ..1 1 3() 9 . 7..-..., •,., • 1 N. r - - . --. ....,, Ii _. \ )9 \0., s \ . ., s. g ..\\n \, \ i ,....,1 ......._ . , . . \ 1 ... Rs, 1\ .., CA \,1 , \\ .. ,. _• . ...— -• p • • \: ' • _' `-`—.----------77-.'--------.7—.7--''• - -.- ' -7 7'':. ' -1'.Y.':----J-.---:- "'-4<:i . 14 a k, \ . \ , ....,,...t •.. .. . • \ \ i 1 . _•— 4 kik' I ,,,. : \ L.:‘,... t- li.11'44•1iihibh.\ Ns. , \ .., s ' 4 # ',, \ . d. ' d it i ,., , 4 i ... . . .. _ ...._ . ....._ __ . . .. kk \ - -• -- - T ,411 _ 1. • 0 , [ 1' . ..,_ • .... se-, ...1.). --- c.) , a) 4— --,—, r-- rrl . • . _ . f\.....1.,1:. ..... I ....... ,. _ . 1 r.-...1) ,..—. ,,,,...., , ._. ' 1 i ..i. 1 4.,i6 —:4__ .4 ...... ...,„„., ....... 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...) 1 • . • �� received • VILLAGE POINTE SHOPPING CENTER LEASE AGREEMENT By and Between 168th and Dodge, L.P., as Landlord and Brixco, Inc., as Tenant C ORDERS OTHER ACTIVITIES 7-14-09- RES#745 GRANT WITH WAIVER OF BEER GARDEN FENCING REQUIREMENT VOTE 6-0-1 PASS *4-27-10-REQ ADD OF AN AREA APPROX 131'X 31'TO THE NORTH* LICENSED PREMISES 1 STY IRREGULAR SHAPED BLDG APPROX 157'X36' OFFICERS: PRES/MGR-DANIEL (KERRY) MATUSZEK, 5222 NORTH 193RD STREET, 68022 (H) 333- 3244 *SHRHLDRS -ROBERT CARLISLE; MICHAEL CASSLING; BES INVESTMENTS, LLC/BRADLEY (CHRISTINE) GOSCH; DAVID (LYNNE) POTTER; DARYL (PATRICIA) WITTSTRUCK; ANN EDMUNDS; JOHN (JANE) SHOOK; NIEL(CAROL) EDMUNDS; WILLIAM (KATHLEEN) GERBER & UNIVERSAL REAL ESTATE, LLC/KENNETH (BRIDGET) GORDMAN *CORP PHONE & FAX#'S -880-8857-FAX-445-4334 *ATTY-MIKE KELLEY-397-1898 LEASE AGREEMENT Name of Tenant: Brixco, Inc. Name of Shopping Center: Village Pointe Table of Contents Article Page 1. LEASE OF PREMISES; RIGHT TO REMEASURE; RESERVATION OF RIGHTS 1 2. OPTION TERMS; OBLIGATION TO OPEN AND CONTINUOUSLY OPERATE 2 3. RENT. 3 4. PAYMENT OF RENT 4 5. COMMON AREAS; CONTROL OF COMMON AREAS; OPERATING COSTS. 4 6. TENANT ADVERTISING; MARKETING FUND 6 7. GROSS SALES: RECORDS AND REPORTING 7 8. TAXES; INSURANCE 8 9. LATE CHARGE 9 10. LIENS 10 11. NO OUTSIDE SALES; LOADING AREAS; PARKING 10 12. CONSTRUCTION OF THE PREMISES 11 13. ALTERATIONS; ROOF PENETRATION; SIGNS............ 11 14. REPAIR AND MAINTENANCE. 13 15. INSPECTIONS; SELF HELP; CONSTRUCTION IN THE SHOPPING CENTER 14 16. UTILITIES/METERS; INTERRUPTION OF SERVICE 15 17. INSURANCE AND INDEMNITY. 16 ' 4 # ',, \ . d. ' d it i ,., , 4 i ... . . .. _ ...._ . ....._ __ . . .. kk \ - -• -- - T ,411 _ 1. • 0 , [ 1' . ..,_ • .... se-, ...1.). --- c.) , a) 4— --,—, r-- rrl . • . _ . f\.....1.,1:. ..... I ....... ,. _ . 1 r.-...1) ,..—. ,,,,...., , ._. ' 1 i ..i. 1 4.,i6 —:4__ .4 ...... ...,„„., ....... 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...) 1 • . • �� received • 18. THIRD PARTY CLAIMS; TENANT'S RISK 18 19. ASSIGNMENT AND SUBLETTING 19 20. LANDLORD TRANSFER. 21 21. PERMITTED USE; EXCLUSIVES; FUTURE RESTRICTION; ECR; LEGAL REQUIREMENTS; RADIUS RESTRICTION 21 22. BANKRUPTCY AND OTHER ACTIONS. 24 23. TENANT'S PROPERTY; LEASEHOLD IMPROVEMENTS 25 24. EMINENT DOMAIN 26 25. DEFAULT 27 26. SUBORDINATION; ESTOPPELS. 30 27. NOTICES... 30 .28. SURRENDER OF PREMISES. 31 29. HOLDING OVER 32 30. CASUALTY. 32 31. WAIVER. 33 32. ANNOUNCEMENTS 33 33. QUIET POSSESSION. 33 34. BROKER'S COMMISSION. 33 35. ASBESTOS AND OTHER HAZARDOUS MATERIALS 34 36. SECURITY DEPOSIT; CONFLICTS;ACCESS; RELATIONSHIP; HEADINGS & MISCELLANEOUS 35 OPPING CENTER 14 16. UTILITIES/METERS; INTERRUPTION OF SERVICE 15 17. INSURANCE AND INDEMNITY. 16 ' 4 # ',, \ . d. ' d it i ,., , 4 i ... . . .. _ ...._ . ....._ __ . . .. kk \ - -• -- - T ,411 _ 1. • 0 , [ 1' . ..,_ • .... se-, ...1.). --- c.) , a) 4— --,—, r-- rrl . • . _ . f\.....1.,1:. ..... I ....... ,. _ . 1 r.-...1) ,..—. ,,,,...., , ._. ' 1 i ..i. 1 4.,i6 —:4__ .4 ...... ...,„„., ....... 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...) 1 • . • �� received • LIST OF EXHIBITS EXHIBIT A SITE PLAN EXHIBIT B-I WORK AGREEMENT EXHIBIT B-II CONSTRUCTION GUIDELINES EXHIBIT C-I SHOPPING CENTER RULES AND REGULATIONS EXHIBIT C-II GIFT CERTIFICATE/GIFT CARD PROGRAM EXHIBIT D FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT EXHIBIT E EXCLUSIVES EXHIBIT F FORM OF COMMENCEMENT DATE MEMORANDUM EXHIBIT G FORM OF LEASE GUARANTY EXHIBIT H PROHIBITED USES iii Y) MATUSZEK, 5222 NORTH 193RD STREET, 68022 (H) 333- 3244 *SHRHLDRS -ROBERT CARLISLE; MICHAEL CASSLING; BES INVESTMENTS, LLC/BRADLEY (CHRISTINE) GOSCH; DAVID (LYNNE) POTTER; DARYL (PATRICIA) WITTSTRUCK; ANN EDMUNDS; JOHN (JANE) SHOOK; NIEL(CAROL) EDMUNDS; WILLIAM (KATHLEEN) GERBER & UNIVERSAL REAL ESTATE, LLC/KENNETH (BRIDGET) GORDMAN *CORP PHONE & FAX#'S -880-8857-FAX-445-4334 *ATTY-MIKE KELLEY-397-1898 LEASE AGREEMENT This Lease Agreement ("Lease") is made and entered into this t2�day of ,2009(the"Effective Date"),which shall be the last date of execution of this Lease by Landlord or Tenant (as applicable) as set forth in the signature page hereof. The following is incorporated into and forms a part of the Lease: COVER SHEET LANDLORD NAME: 168TH and Dodge, L.P. a Nebraska limited partnership . TENANT NAME: Brixco, Inc., a Nebraska corporation ("Brixco") TENANT ADDRESS: 5222 No. 193`d Street Elkhorn, Nebraska 68022 Attn: Dan Matuszek TRADE NAME: Brix Wine & Spirits Emporium and Brix by the Glass ITEM 1. PREMISES: The"Premises"consist of certain premises containing approximately 21,148 square feet of"Floor Area" (defined in Item 13 below), located in Village • Pointe Shopping Center (the "Shopping Center"), Omaha, Nebraska. The approximate layout of the Shopping Center and the location of the Premises therein are shown on the site plan attached as Exhibit A hereto (the "Site Plan"). ITEM 2. LEASE YEAR: For purposes of this Lease, the term "Lease Year" shall mean a period of twelve (12)full, consecutive calendar months. The first Lease Year shall commence on the Commencement Date and shall end on the last day of the twelfth full calendar month following the Commencement Date. If the Commencement Date occurs on a date other than the first day of the month,then the first Lease Year shall include the partial month between the Commencement Date and the last day of the month during which the Commencement Date occurs, and the Minimum Rent and other charges payable during such partial month shall be appropriately prorated based on the number of days in such month. Any Lease Year which is for any reason shorter than a full 12-month calendar year is sometimes herein referred to as a"partial"Lease Year. For purposes of calculating and paying the Minimum Rent, Percentage Rent and all recurring Additional Rent payable under this Lease during any partial Lease Year, such charges shall be appropriately prorated based on the number of days in such partial Lease Year. ITEM 3. TERM: 10 Lease Years and 3 months. ITEM 3(a). OPTIONS: 2 Option Terms of 5 Lease Years each. ITEM 3(b). COMMENCEMENT DATE: Subject to the provisions of this Lease, the Commencement Date shall be the earlier of: (I) the date that Tenant opens for business to the public in the Premises; or (ii) the date that is 120 days after the A' Delivery Date. Unless specifically provided otherwise,the Commencement Date for the Term and the Commencement Date for the purposes of Tenant's obligation to • pay Rent coincide. Within 30 days after the Commencement Date has been determined, Landlord and Tenant shall execute and deliver to each other a Commencement Date Memorandum in the form attached hereto as Exhibit F and incorporated herein by this reference setting forth the Delivery Date, the Commencement Date, the Floor Area of the Premises, the dates by which Tenant must exercise its option(s)to extend the Term for the Option Term(s), the dates of commencement of the Option Term(s) and the expiration date of the Lease. ITEM 3(c) DELIVERY DATE:The"Delivery Date"shall be the date 45 days after the earlier of (i)the License Contingency Date; or(ii) receipt of written waiver from Tenant of the Liquor License Contingency set forth in Section 108 of this Lease. ITEM 4. MINIMUM RENT: Annual Monthly Months Per Sq. Ft. Minimum Rent Minimum Rent Base Term: 1-27 $13.50 $285,498.00 $23,791.50 28-39 $13.77 $291,207.96 $24,267.33 40-51 $14.05 $297,129.36 $24,760.78 52-63 $14.33 $303,050.88 $25,254.24 64-75 $14.61 $308,972.28 $25,747.69 76-87 $14.91 $315,316.68 $26,276.39 88-99 $15.20 $321,449.64 $26,787.47 100-111 $15.51 $328,005.48 $27,333.79 112-123 $15.82 $334,561.32 $27,880.11 1st Option Term: 1-12 $16.13 $341,117.28 $28,426.44 13-24 $16.46 $348,096.12 $29,008.01 25-36 $16.79 $355,074.96 $29,589.58 37-48 $17.12 $362,053.80 $30,171.15 49-60 $17.46 $369,244.08 $30,770.34 2nd Option Term: 1-12 $17.81 $376,645.92 $31,387.16 13-24 $18.17 $384,259.20 $32,021.60 25-36 $18.53 $391,872.48 $32,656.04 37-48 $18.90 $399,697.20 $33,308.10 49-60 $19.28 $407,733.48 $33,977.79 ITEM 5. PERCENTAGE RENT: 3% of all Gross Sales (hereafter defined) in excess of an amount(the"Breakpoint")equal to the quotient obtained by dividing the Minimum Rent payable during such Lease Year by 3%. ITEM 6. PERMITTED USE:Subject to the other provisions of this Lease,the Premises shall be used for the retail sale of wine, beer and spirits for off-premises consumption (it being understood that seventy percent(70%)or more of Tenant's Gross Sales shall consist of the retail sale of wine, beer and spirits for off-premises consumption), a limited gourmet grocery store, the on-premises consumption of beer, wine and spirits(including the sale of wine for on-premises consumption utilizing an Enomatic Wine Serving System or other automated smartcard system) and tapas foods, B together with a small meeting space facility with full food service (including a kitchen), and for no other use or purpose, and under the Trade Name set forth above and under no other trade name. ITEM 7. SHOPPING CENTER FLOOR AREA: The total Floor Area of all buildings and structures in the Shopping Center from time to time (including the Premises). ITEM 8. CONSTRUCTION ALLOWANCE: A maximum of$40.00 per square foot of Floor Area in the Premises. ITEM 9. GUARANTOR: Dan Matuszek Address 5222 No. 193`d Street Elkhorn, Nebraska 68022 Phone Number: (402) 880-8857 Social Security#: GUARANTOR: Kerry Matuszek Address 5222 No. 193`d Street Elkhorn, Nebraska 68022 Phone Number: (402) 880-8857 Social Security#: • ITEM 10. SECURITY DEPOSIT: Provided Tenant has not terminated this Lease in accordance with the terms and conditions of Section 108, $25,000.00 to be paid within five (5) days of the License Contingency Date (as defined herein). ITEM 11. TENANT'S EXCLUSIVE: See Section 57.1. ITEM 12. TENANT'S STORE PLANNING CONTACT PERSON: Name: Trisha Otto Address: Purdy& Slack 11919 Grant Street, Suite 200 Omaha, Nebraska 68164 Telephone: (402)496-4448 ITEM 13. FLOOR AREA: "Floor Area", with respect to each building or structure on the Shopping Center, means the number of square feet of Floor Area intended for exclusive occupancy at each level or story lying within the exterior faces of exterior walls thereof(except party walls, as to which the center line, not the exterior faces, shall be used), whether or not leased or occupied. C $17.12 $362,053.80 $30,171.15 49-60 $17.46 $369,244.08 $30,770.34 2nd Option Term: 1-12 $17.81 $376,645.92 $31,387.16 13-24 $18.17 $384,259.20 $32,021.60 25-36 $18.53 $391,872.48 $32,656.04 37-48 $18.90 $399,697.20 $33,308.10 49-60 $19.28 $407,733.48 $33,977.79 ITEM 5. PERCENTAGE RENT: 3% of all Gross Sales (hereafter defined) in excess of an amount(the"Breakpoint")equal to the quotient obtained by dividing the Minimum Rent payable during such Lease Year by 3%. ITEM 6. PERMITTED USE:Subject to the other provisions of this Lease,the Premises shall be used for the retail sale of wine, beer and spirits for off-premises consumption (it being understood that seventy percent(70%)or more of Tenant's Gross Sales shall consist of the retail sale of wine, beer and spirits for off-premises consumption), a limited gourmet grocery store, the on-premises consumption of beer, wine and spirits(including the sale of wine for on-premises consumption utilizing an Enomatic Wine Serving System or other automated smartcard system) and tapas foods, B • ITEM 14. MARKETING CHARGE: An initial amount equal to$0.50 per square foot of Floor Area in the Premises per annum. ITEM 15. Intentionally Deleted. ITEM 16. CITY: The City of Omaha. ITEM 17. STATE: The State of Nebraska. D STURBANCE AND ATTORNMENT AGREEMENT EXHIBIT E EXCLUSIVES EXHIBIT F FORM OF COMMENCEMENT DATE MEMORANDUM EXHIBIT G FORM OF LEASE GUARANTY EXHIBIT H PROHIBITED USES iii Y) MATUSZEK, 5222 NORTH 193RD STREET, 68022 (H) 333- 3244 *SHRHLDRS -ROBERT CARLISLE; MICHAEL CASSLING; BES INVESTMENTS, LLC/BRADLEY (CHRISTINE) GOSCH; DAVID (LYNNE) POTTER; DARYL (PATRICIA) WITTSTRUCK; ANN EDMUNDS; JOHN (JANE) SHOOK; NIEL(CAROL) EDMUNDS; WILLIAM (KATHLEEN) GERBER & UNIVERSAL REAL ESTATE, LLC/KENNETH (BRIDGET) GORDMAN *CORP PHONE & FAX#'S -880-8857-FAX-445-4334 *ATTY-MIKE KELLEY-397-1898 LEASE AGREEMENT ARTICLE 1 Lease of Premises; Right to Remeasure; Reservation of Rights 1. Lease of Premises; Right to Remeasure. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises. Within 30 days after the Delivery Date, either party shall have the right to cause the Floor Area of the Premises to be measured by an architect at the cost of the electing party. If the Floor Area of the Premises differs from the Floor Area set forth in ITEM 1 of the Cover Sheet and the non-electing party agrees with such measurement, the Minimum Rent and all other charges and allowances(including the Construction Allowance, if any) payable hereunder based upon the Floor Area of the Premises shall be appropriately adjusted. If the other party disputes the determination of the Floor Area based on the measurement,and if such party shall so notify the measuring party within 5 days after receipt of the measurement, the disputing party shall have the right, at its own cost, to have the Premises remeasured by an architect. If the two measurements differ, the parties shall select an independent third architect, whose measurement of the Floor Area in the Premises shall control. If Tenant does not notify Landlord of any defects in any of Landlord's Work within 30 days after the Delivery Date, Tenant shall be deemed to have accepted the Premises in its "As-Is"condition. 2. Outdoor Patio Area: Subject to Tenant obtaining from the applicable authority having jurisdiction all requisite permits, approvals, consents, authorizations and the like (collectively, the "Outdoor Patio Area Approvals")to operate and use an outdoor patio(the"Outdoor Patio")with a fire pit in the location(the"Outdoor Patio Area")depicted on Exhibit A,Tenant shall be entitled, at its sole cost and expense,to exclusively operate and use the Outdoor Patio solely for purposes of providing outdoor seating and table service to its customers; provided, however, (i) any such operation and use shall be subject to such reasonable rules and regulations as Landlord may promulgate from time to time regarding access to and use of the Outdoor Patio, including, without limitation, rules and regulations regarding operating hours, location and relocation of personal property, areas of operation, and such other matters as Landlord deems appropriate for the best interests of the Shopping Center; (ii) any such operation and use of the Outdoor Patio shall be subject to the ECR, the Handbook (as defined in Exhibit B-II), and all governmental laws, ordinances and regulations and Tenant shall comply with the same and furnish Landlord with evidence reasonably satisfactory to Landlord that all necessary Outdoor Patio Area Approvals have been obtained as a condition to commencing any operation or use of the Outdoor Patio; (iii)Tenant shall pay all costs and expenses of operating, maintaining, repairing and replacing the Outdoor Patio Area; (iv)Tenant shall maintain the Outdoor Patio Area in a first class manner,consistent with the balance of the Shopping Center;(v)Tenant's furnishings or other fixtures for the Outdoor Patio shall be provided to Landlord for review and approval, and (vi) all of the terms, covenants and conditions of this Lease, other than Tenant's obligation to pay Rent,shall apply with respect to the Outdoor Patio and the Outdoor Patio Area,and Tenant's indemnity obligations set forth in Article 17 shall extend to the Outdoor Patio and the Outdoor Patio Area. The Outdoor Patio Area shall be installed and maintained at Tenant's sole cost and expense,in accordance with all applicable laws. If Tenant does not obtain the Outdoor Patio Area Approvals,then this Lease shall continue in full force and effect, except that Tenant shall have no right to operate or use the Outdoor Patio or the Outdoor Patio Area and all references to the Outdoor Patio and/or the Outdoor Patio Area shall be disregarded. 1 3. Landlord's Reservation of Rights. Landlord reserves"AS-IS":(i)the exclusive use of the exterior walls (other than the storefront), the roof, the airspace above the roof and the space below the floor slab; and (ii)the right to install, maintain, use, repair and/or replace pipes, ducts, conduits and wires in the space above the interior surfaces of the ceilings, below the finished floor, within the demising walls of the Premises and in all of the Common Areas of the Shopping Center; provided, however, Landlord shall use reasonable efforts not to interfere with Tenant's business operations in the Premises in connection with any work contemplated by subsection (ii) above, except that nothing contained herein shall require Landlord to perform such work outside of normal business hours. ARTICLE 2 Option Terms; Obligation to Open and Continuously Operate 4. Option Terms. Provided:(i)Tenant is fully operating its business for the Permitted Use in all portions of the Premises; and (ii) no Event of Default exists on the date Tenant exercises its right or on the date that the Option Term would otherwise commence,Tenant shall have the right to extend the Term of this Lease for the Option Term(s) by notice ("Option Notice") delivered to Landlord not less than 180 days, nor more than 360 days, prior to the end of the initial Term or the then existing Option Term, as the case may be ("Exercise Window"). The right to exercise an Option Term is.personal to the named Tenant herein and may not be exercised by any person or entity other than Tenant or a permitted assignee. Provided Tenant has properly and timely exercised the applicable Option Term, prior to the expiration of the Exercise Window,the Term shall be extended for the period of the Option Term,and all terms,covenants and conditions of the Lease shall remain unmodified and in full force and effect, except that Minimum Rent payable by Tenant during each Option Term shall be as set forth in ITEM 4 of the Cover Sheet. The Term of this Lease, including any Option Terms, is herein referred to as the "Term". 5. Tenant Obligation to Open and Continuously Operate. Tenant agrees to use its best efforts to open for business to the public in the Premises for purposes of retail sales on the Commencement Date (and, in any event, Tenant shall open for business to the public in the Premises within 30 days of the Commencement Date) and to continuously operate thereafter throughout the remainder of the Term on all business days during Tenant's business hours set forth below. Tenant covenants that it will,from and after the Commencement Date,continually operate in the Premises for the Permitted Use and under the Trade Name, fully stocked and staffed and consistent with the operations of Tenant's other stores operated under the Trade Name in first class retail centers if any. Tenant agrees to operate with diligence and in accordance with the best standards of operation for retail businesses.Tenant acknowledges that the Shopping Center is an interdependent enterprise and its success is dependent upon the opening and continued operation of Tenant's business in accordance with the terms of this Lease. Tenant shall maintain in the Premises all suitable furniture, fixtures, equipment and other personal property necessary for the conduct of Tenant's business therein, and shall install and maintain at all times displays of merchandise in the display window(s) (if any) of the Premises. During such periods as Tenant is required to operate its store hereunder,Tenant shall keep the display window(s)and signs,if any,in the Premises well lit during business hours and daily until at least 11:00 p.m., at Landlord's discretion. Tenant shall not remove a substantial portion of Tenant's Property or inventory without replacing it,except in the event of Force Majeure,temporary remodeling(not to exceed 10 business days in any 1 Lease Year) or casualty as provided in this Lease. Anything in this Lease to the contrary notwithstanding, Landlord agrees that Tenant shall not be required to open that portion of the Premises dedicated to the wine bar and meeting space until the date thirty(30)days following 2 the Commencement Date. Notwithstanding anything to the contrary herein regarding the Shopping Center business hours, Landlord acknowledges and consents to the following hours of operation of Tenant: Monday—Thursday, Retail 10am—9pm/Wine Bar 3—11 pm; Friday, Retail 10am—10pm /Wine Bar 3— 12pm; Saturday, Retail 9am—10pm/Wine Bar 3— 12pm; and Sunday, Retail 12— 6pm /Wine Bar—Closed. ARTICLE 3 Rent 6. Rent. The term"Rent"shall mean all amounts required to be paid by Tenant under this Lease and the obligation to pay such sums shall be independent of any obligations required to be performed by Landlord pursuant to this Lease. Tenant shall pay Landlord the following amounts as Rent: 6.1 Minimum Rent. Commencing as of the Commencement Date and continuing throughout the Term, Tenant shall pay to Landlord the Minimum Rent in equal monthly installments as set forth in ITEM 4 of the Cover Sheet, in advance, on the first day of each month,without prior notice or demand, setoff or deduction. Minimum Rent shall be prorated for any partial calendar month. If the Commencement Date is a date other than the first day of a calendar month: (i) Minimum Rent for the month containing the Commencement Date shall be prorated based upon the ratio that the number of days in the Term within such month bears to the total number of days in such month; and (II)the initial monthly rental period shall include the month in which the Commencement Date occurs and the following full calendar month (unless the Commencement Date is the first day of a calendar month, in which event the initial monthly rental period shall include only the month containing the Commencement Date); Anything in this Lease to the contrary notwithstanding, Tenant shall have no liability for Minimum Rent for the first three (3)full calendar months of the Term; provided, however, that the entire amount of the monthly installment of Minimum Rent otherwise due and payable for the first three (3)full calendar months of the Term shall be reinstated and shall become immediately due and payable upon any Event of Default by Tenant under this Lease occurring during the first three (3)full calendar months of the Term. 6.2 Percentage Rent. In addition to the Minimum Rent, from and after the twenty-eighth(28th)full calendar month of the Term,Tenant covenants and agrees to pay to Landlord, without prior notice, demand, setoff or deduction, for each Lease Year, Percentage Rent in an amount equal to 3% of Gross Sales during such Lease Year in excess of the applicable Breakpoint as set forth in ITEM 5 of the Cover Sheet. Percentage Rent shall be due and payable no later than 30 days after the end of each Lease Year in which Tenant's aggregate Gross Sales for such Year exceed the Breakpoint. If the Minimum Rent for any Lease Year is reduced or abated for any reason,the Breakpoint for determining Percentage Rent will be reduced proportionately for so long as the reduction or abatement of Minimum Rent continues. 6.3 Additional Rent. "Additional Rent"means all amounts required to be paid by Tenant to Landlord hereunder,other than Minimum and Percentage Rent,whether or not such amount is specifically designated Additional Rent. 3 ain at all times displays of merchandise in the display window(s) (if any) of the Premises. During such periods as Tenant is required to operate its store hereunder,Tenant shall keep the display window(s)and signs,if any,in the Premises well lit during business hours and daily until at least 11:00 p.m., at Landlord's discretion. Tenant shall not remove a substantial portion of Tenant's Property or inventory without replacing it,except in the event of Force Majeure,temporary remodeling(not to exceed 10 business days in any 1 Lease Year) or casualty as provided in this Lease. Anything in this Lease to the contrary notwithstanding, Landlord agrees that Tenant shall not be required to open that portion of the Premises dedicated to the wine bar and meeting space until the date thirty(30)days following 2 ARTICLE 4 Payment of Rent 7. Payment of Rent. Tenant shall pay all sums required to be paid to Landlord, without prior notice, demand, setoff or deduction, at the office of Landlord 168th and Dodge, L.P. d/b/a Village Pointe, P.O. Box 414923, Kansas City, MO 64141-4923, or at such other place or places as Landlord may designate from time to time. The obligation of Tenant to pay any amount due to Landlord hereunder shall be independent of any obligation of Landlord under this Lease. ARTICLE 5 Common Areas; Control of Common Areas; Operating Costs 8. Common Areas. Landlord agrees throughout the Term of this Lease to manage, maintain and operate all parking areas and other common areas and facilities for the Shopping Center and to keep them in good order and condition. The term "Common Areas" means all areas,space,equipment and services in or serving the Shopping Center and the Premises provided for the common or joint use and benefit of Landlord, Tenant and the occupants of the Shopping Center and their employees, agents, servants, customers and other invitees, including, without • limitation, customer and employee parking areas and parking lot improvements, access roads, corridors, balconies, stairs, driveways, retaining walls, exterior boundary walls and fences, water, sanitary and storm sewers (including, without limitation, any on or off-site sewer lines), water retention and drainage facilities which Landlord is required to maintain(however, Landlord will only maintain as part of the Operating Costs, sanitary sewers up to the building in which the Premises are located (the."Building"),gas,electric,telephone and other utilities lines,systems,conduits and facilities to the perimeter walls of any building (even though intended for the use of only 1 or a limited number of occupants)and those serving'more than 1 premises within a building,and any of the foregoing which serve the Common Areas, plantings, landscaped areas, truck service ways, loading dock areas and facilities,courts,ramps,sidewalks,any drinking fountains,and the facilities appurtenant to the foregoing. 9. Control of Common Areas. It is agreed that: (I)all Common Areas shall be subject to the exclusive control and management of Landlord and subject to the "ECR" (as defined in this Lease), and Landlord shall have the right at any time (either before, during or after the initial arrangement of the entrances,access roads,parking areas and other Common Areas),to construct buildings and other improvements thereon and therein,and to permit the owners and occupants of land located outside the Shopping Center and Premises and their invitees to use the Common Areas; (ii) Landlord shall have the right to demolish and make alterations and additions to the buildings in the Shopping Center(including the construction of additional buildings therein),and to add and exclude areas from the Shopping Center,and to relocate improvements;and(III)Landlord shall have the right to do and perform such other acts in and to the Common Areas as Landlord shall determine to be advisable, in its sole and absolute discretion. The rights of Landlord as reserved in this Lease shall be subject to the condition that no exercise of such rights by Landlord shall alter the physical dimensions of the Premises,or change their location or relative proximity to other stores,or otherwise materially or unreasonably interfere with the conduct of Tenant's business in the Premises. 4 periods as Tenant is required to operate its store hereunder,Tenant shall keep the display window(s)and signs,if any,in the Premises well lit during business hours and daily until at least 11:00 p.m., at Landlord's discretion. Tenant shall not remove a substantial portion of Tenant's Property or inventory without replacing it,except in the event of Force Majeure,temporary remodeling(not to exceed 10 business days in any 1 Lease Year) or casualty as provided in this Lease. Anything in this Lease to the contrary notwithstanding, Landlord agrees that Tenant shall not be required to open that portion of the Premises dedicated to the wine bar and meeting space until the date thirty(30)days following 2 10. Operating Costs. The term"Operating Costs"shall mean the total cost and expense incurred in managing, operating, maintaining, replacing, equipping, inspecting, protecting, and repairing the Common Areas. Operating Costs shall not include the "Uncontrollable Costs" (as defined in this Article),which shall be separately billed to and payable by Tenant as provided below in this Article. If Landlord elects, at Landlord's sole discretion, to provide security services to the Common Areas, the security services shall be intended solely for the operation and benefit of the Common Areas and not for the benefit or protection of the Premises or any other premises occupied by tenants or occupants of the Shopping Center, and Landlord shall not be liable in any manner whatsoever to Tenant or any third party by reason of any act or omission of Landlord in providing or maintaining security services(or electing not to provide or maintain security services)in the Common Areas. Additionally, if Tenant elects to remain open for business after normal operating hours,Tenant shall pay its proportionate share(based upon the Floor Area of all tenants so electing to remain open after normal operating hours)of any additional costs incurred during the additional hours that the Premises remain open. 11. Tenant's Operating Costs Contribution. Commencing as of the Commencement Date, Tenant shall pay Landlord a contribution toward the Operating Costs("Tenant's Operating Costs Contribution") equal to: (a)during the 2009 and 2010 calendar years, an amount equal to $2.50 per square foot of Floor Area in the Premises; (b)as of January 1, 2011,an amount equal to $2.58 per square foot of Floor Area in the Premises; and (c) as of January 1 during each subsequent calendar year during the Term (including the Option Terms, if exercised by Tenant),an amount equal to 103% of Tenant's Operating Costs Contribution for the immediately preceding calendar year. Tenant shall pay Tenant's Operating Costs Contribution in equal monthly installments, in advance,on the first day of each month during the Term.Tenant's Operating Costs Contribution shall be appropriately prorated for any partial calendar month based upon the ratio that the number of days in such month within the Term bears to the total number of days in such month. For the calendar year in which this Lease commences, expires or terminates,Tenant's Operating Costs Contribution shall be prorated, if applicable, on a per diem basis. Tenant waives, releases and remises any right Tenant may now have or hereafter acquire to audit Landlord's books and records with respect to Tenant's Operating Costs Contribution. 12. Uncontrollable Costs.In addition to Tenant's Operating Costs Contribution,Tenant shall pay Landlord a proportionate share of snow removal costs (the "Uncontrollable Costs"). 13. Tenant's Share of Uncontrollable Costs. Commencing as of the Commencement Date, Tenant shall pay to Landlord a proportionate share of the Uncontrollable Costs during each calendar year. Tenant's Proportionate Share of Uncontrollable Costs shall be equal to the total Uncontrollable Costs for such calendar year(minus the contributions of any Excluded Premises[as defined in this Section]to the Uncontrollable Costs)multiplied by a fraction,the numerator of which is the Floor Area of the Premises and the denominator of which is the Floor Area of all tenants and occupants in the Shopping Center (including Tenant), minus the Floor Area of any Excluded Premises. For the purposes of this Lease,"Excluded Premises"shall mean any tenant or occupant operating on the"Theatre Parcel"or the"Scheels Parcel"depicted on the Site Plan. Tenant shall pay Tenant's Proportionate Share of Uncontrollable Costs to Landlord in equal monthly installments on the first day of each calendar month, in advance, in an amount reasonably estimated by Landlord from time to time and shall be prorated for any partial calendar month based upon the ratio that the number of days in such month within the Term bears to the total number of days in such month. For the calendar year in which this Lease commences, expires or terminates, Tenant's Proportionate Share of Uncontrollable Costs shall be prorated, if applicable, on a per diem basis. 14. Intentionally Deleted. 5 15. Summary. Upon receipt of the statements for the Uncontrollable Costs,Real Estate Taxes and Landlord's Insurance for each year, Landlord shall compute the share thereof due from Tenant, and an itemized statement shall be furnished to Tenant reflecting the amount due for the Uncontrollable Costs, Real Estate Taxes,and Landlord's Insurance. If the amounts paid by Tenant during the preceding year were in excess of its Proportionate Share of Uncontrollable Costs, Proportionate Share of Real Estate Taxes, and Proportionate Share of Landlord's Insurance, the excess shall be credited against the next ensuing payments due from Tenant, and if the amount paid by Tenant is less than its Proportionate Share of Uncontrollable Costs, Proportionate Share of Real Estate Taxes, and Proportionate Share of Landlord's Insurance, Tenant shall pay the deficiency within 30 days after receipt of notice thereof. If the notice furnished to Tenant includes a computation of the estimated sums that are due from Tenant each month for the current year,the monthly payment shall be adjusted accordingly. Upon five (5) days prior written notice, Landlord hereby agrees to make available to Tenant for its inspection, copying and examination during normal business hours at Landlord's office for a period of sixty(60)days following the date Landlord provides to Tenant the itemized statement,the invoices that relate to Tenant's Proportionate Share of Uncontrollable Costs, Proportionate Share of Real Estate Taxes, and Proportionate Share of Landlord's Insurance as referenced in the itemized statement for the prior Lease Year. ARTICLE 6 Tenant Advertising; Marketing Fund 16. Tenant Advertising. In the event Tenant advertises locally, Tenant, at its sole expense, agrees to refer to the Shopping Center by name in any such local newspaper,telephone book and other local advertising. 17. Marketing Fund. Landlord and Tenant acknowledge that there is or may be a fund established and used by Landlord for the promotion of the Shopping.Center (the "Marketing Fund"). Tenant agrees to pay to Landlord, in monthly installments, as Additional Rent, a contribution to the Marketing Fund (the "Marketing Charge") on the first day of each calendar month during the Term. Tenant's Marketing Charge for the first Lease Year shall be as set forth in ITEM 14 of the Cover Sheet and shall increase 5%on January 1,2011 and as of January 1 of each calendar year during the Term thereafter(including any Option Term(s), if exercised by Tenant). 18. Merchants'Association. At no additional cost to Tenant, Tenant shall become a member of,and participate fully and remain in good standing in,any merchants association formed by Landlord and tenants occupying premises in the Shopping Center. 19. Gift Certificate/Gift Card Program. If Landlord elects to institute a "Gift Certificate/Gift Card Program" at the Shopping Center, Tenant agrees to participate in such program as directed by Landlord to the extent Tenant's participation in such program is permitted by applicable law, at no additional cost to Tenant. A copy of the initial Gift Certificate Program is attached hereto as Exhibit C-II,which"Program"Landlord reserves the right to change or modify from time to time and to add a Gift Card Program if it so desires. Landlord,from time to time, shall designate one or more banking institutions to administer the Program. ARTICLE 7 6 cluding Tenant), minus the Floor Area of any Excluded Premises. For the purposes of this Lease,"Excluded Premises"shall mean any tenant or occupant operating on the"Theatre Parcel"or the"Scheels Parcel"depicted on the Site Plan. Tenant shall pay Tenant's Proportionate Share of Uncontrollable Costs to Landlord in equal monthly installments on the first day of each calendar month, in advance, in an amount reasonably estimated by Landlord from time to time and shall be prorated for any partial calendar month based upon the ratio that the number of days in such month within the Term bears to the total number of days in such month. For the calendar year in which this Lease commences, expires or terminates, Tenant's Proportionate Share of Uncontrollable Costs shall be prorated, if applicable, on a per diem basis. 14. Intentionally Deleted. 5 . t Gross Sales: Records and Reporting 20. Gross Sales Records and Reporting. Whether or not Tenant is required to pay Percentage Rent, on or before the last day of each calendar month, Tenant shall furnish to Landlord, at the place where the Rent is payable, a written statement of Gross Sales for the preceding calendar month, such statement to be in a form reasonably acceptable to Landlord. On or before January 31st of each year, Tenant shall furnish to Landlord a statement, certified by an officer of Tenant,of Gross Sales for the preceding Lease Year and will tender therewith the balance of Percentage Rent due, if any,for such Lease Year. If the installments of Percentage Rent paid by Tenant for any Lease Year exceed the amount thereof due for such Lease Year, Landlord will credit the amount of the overpayment, first to the payment of Rent due and unpaid, and the rest, if any, shall be applied to Percentage Rent payments next falling due.Tenant shall keep at its home office during the Term hereof,for a period of 3 years after the close of each Lease Year, or longer if there is an ongoing dispute regarding such Gross Sales, a complete record of Gross Sales from the Premises in accordance with generally accepted accounting principles consistently applied. 21. Percentage Rent Sales Reports/Audit. Upon not less than 7 days prior notice, Landlord may, no more often than once each Lease Year, cause an audit of Tenant's Gross Sales for any of the prior 3 Lease Years to be made by an accountant to be selected by Landlord, or by a qualified member of Landlord's staff. If Tenant disputes the results of such audit,Tenant shall notify Landlord within 30 days after receipt of a copy of the audit and shall have the right, at its own cost, to cause an audit to be made by an accountant selected by Tenant(which accountant shall not be compensated on a contingency fee basis). If the two audits differ, the parties shall select an independent third accountant (which accountant shall not be compensated on a contingency fee basis and whose fee shall be split evenly between the parties),whose audit results shall control. If the audit reveals a difference in the Gross Sales reported by Tenant to Landlord, Tenant shall pay any Percentage Rent payable by Tenant to Landlord as a result of an understatement of Gross Sales within 30 days after the audit is finalized. If the audit reveals a difference of greater than 3%, Tenant shall pay to Landlord the cost of the audit, within 30 days after receipt of an invoice therefore. Any audit shall be performed at Tenant's home office and shall cause as little interference with Tenant's operations as reasonably possible. The provisions of this paragraph shall survive the expiration of the Term of this Lease. • 22. Definition of Gross Sales. "Gross Sales"shall mean the aggregate gross amount of all sales of beverages and merchandise transacted or made and all charges for services performed on or from the Premises (including gift and merchandise certificates), any amounts received by Tenant with respect to sales of food on the Premises, rental of equipment and all business (including, but not limited to, all sales by telephone or mail, vending machines, all other merchandising dispensing equipment, receipts from pay telephones,interest,time-price differential; finance charges, service charges, credit and lay-away sales) transacted in, upon or from the Premises by Tenant, its subtenants, licensees, contractors,franchisees or any other occupants of the Premises, including all sales made from cash or upon credit, or partially for cash and partially upon credit and upon any other money transfer procedure accomplished by electronic transfer or similar method, or by barter or exchange, regardless of collection of charges for which credit is given and all sales,charges or unreturned deposits for services and business transacted for which orders are taken in, upon or from the Premises regardless of whether or not the merchandise sold is delivered wholly or in part,the services are rendered or the business is transacted in, upon or from the Premises.Each sale,charge or business transacted upon installments or contracts thereof shall be treated as a Gross Sale for the full price or charge to the customer in the month in which such sale, charge or contact shall be made.Gross Sales shall not include: (i)any fee(including,without 7 limitation, impact fees), license fee, license tax, business license fee, commercial rental tax, levy, charge, assessment (whether general or special), penalty or tax(including, without limitation, any speculative builder's tax, however described)imposed by any taxing or judicial authority against the Shopping Center or land upon which the Shopping Center is located; (ii) interstore transfers of merchandise where such transfer is made solely for the convenient operation of the business of Tenant and not for purpose of consummating a sale which has theretofore been made in or from the Premises and/or for the purpose of depriving Landlord of the benefit of a sale which otherwise would be made in or from the Premises; (iii) cash or credit refunds; returns to suppliers or manufacturers; (iv) any penalty charged by Tenant for a returned check; (v) reimbursement of amounts for postage, express or delivery services, including, but not limited to, United Parcel Service, incurred in delivering merchandise to customers, provided that such charges are at all times properly segregated from amounts includable in Gross Sales and so identified on Tenant's records; (vi) any sale at a discount of greater than 25% to a bona fide employee of Tenant to the extent that such sales do not exceed 2% of the total Gross Sales in any Lease Year; (vii)any sale of fixtures or equipment not in the regular course of Tenant's business or after use thereof;(viii)gift certificates,or like vouchers, until such time as they have been converted into a sale by redemption at the Premises;(ix)catalog sales where the payment for the item purchased does not occur at the Premises;(x)layaway sales until the merchandise is delivered to the customer at the Premises;and (xi)the amount of any special discount to customers for damaged or defective merchandise, and bad debt expense with respect to merchandise sold on credit or purchased by check, provided, if the amount thereof is subsequently collected, it shall be included in Gross Sales in the year of collection. ARTICLE 8 Taxes; Insurance 23. Taxes. Tenant covenants and agrees to pay to Landlord, in monthly installments and as Additional Rent, its Proportionate Share of all Real Estate Taxes, whether federal, state, county or municipal, levied or assessed against the Premises,the Shopping Center, and buildings of the Shopping Center and all other taxes and assessments attributable to the Shopping Center and the operation thereof. Tenant shall pay Landlord, on the first day of each calendar month during the Term,amounts reasonably estimated by Landlord to be Tenant's monthly installment of its Proportionate Share of such Real Estate Taxes. "Real Estate Taxes" include: (i)any fee, license fee, license tax, business license fee, commercial rental tax, levy, charge, assessment (whether general or special), penalty or tax imposed by any taxing or judicial authority against the Shopping Center or land upon which the Shopping Center is located;(ii)any tax on Landlord's right to receive, or the receipt of, rent or income from the Shopping Center or against Landlord's business of leasing the Shopping Center; (iii) any tax or charge for fire protection, streets, sidewalks, road maintenance, refuse or other services provided to the Shopping Center by any governmental agency;(iv)any tax imposed upon this transaction,or based upon a re-assessment of the Shopping Center due to a change in ownership or transfer of all or part of Landlord's interest in the Shopping Center; (v) any charge or fee replacing any tax previously included within the definition of Real Estate Taxes; (vi) costs, including reasonable attorneys', appraisers' and consultants' fees, incurred in contesting and Real Estate Taxes; and (vii) that certain special assessment implemented or to be implemented pursuant to a so-called Sanitary Improvement District(the"SID"),which Landlord represents will be payable over ten(10)years with interest at the then current rate of interest established by the applicable Douglas County, Nebraska taxing authority. The term Real Estate Taxes shall not include any income, gross income, franchise, personal property, devolution, estate and inheritance or gift taxes. 8 rice or charge to the customer in the month in which such sale, charge or contact shall be made.Gross Sales shall not include: (i)any fee(including,without 7 24. Tenant's Proportionate Share of Real Estate Taxes. Tenant's Proportionate Share of Real Estate Taxes shall be an amount equal to the Real Estate Taxes on the"Shopping Center Tax Parcel"(as defined below) multiplied by a fraction,the numerator of which is the Floor Area of the Premises and the denominator of which is the total Floor Area of the buildings within the Shopping Center Tax Parcel, including the Premises, but excluding the Floor Area of the Excluded Premises. The term "Shopping Center Tax Parcel"shall be defined as land owned by Landlord improved for use as part of the Shopping Center(which may be comprised of one or more individual tax parcels), but excluding any portions thereof which are separately assessed and taxed or are the subject of records maintained by the taxing authority from which the amount of tax allocable to such portions may be separately determined and: (i) billed to any entity other than Landlord or paid directly by that entity; and/or (ii) billed to Landlord but paid by another entity. Landlord shall be entitled, at any time and from time to time during the Term, to change or modify the Shopping Center Tax Parcel in the exercise of its reasonable discretion. In the event the Premises are or become separately assessed for tax purposes, Tenant covenants and agrees to pay Landlord, as its proportionate share of Real Estate Taxes, (a)all Real Estate Taxes assessed with respect to the Premises, plus (b) a proportionate share (as set forth above) of the Real Estate Taxes levied or assessed against the Common Areas in the Shopping Center. Landlord's non-binding estimate of Tenant's Proportionate Share of Real Estate Taxes for the first calendar year is approximately Four and 50/100 Dollars($4.50) per square foot of Floor Area of the Premises, on an annualized basis, but nothing in this Section 24 shall be construed as diminishing Tenant's obligation and covenant to pay Tenant's Proportionate Share of Real Estate Taxes, notwithstanding that Tenant's liability with respect thereto may exceed the estimate set forth above. 25. Insurance. Landlord shall, at all times during the Term, carry a policy or policies of commercial general liability insurance covering the Common Areas of the Shopping Center and special form causes of loss insurance covering at least eight percent(80%)of the replacement cost of Landlord's improvements to the Shopping Center(excluding foundation,grading and excavation costs), all in such forms and amounts and with such deductibles as Landlord reasonably deems appropriate (collectively, "Insurance"). Tenant covenants and agrees to pay to Landlord, in monthly installments as Additional Rent, its proportionate share of all the costs to Landlord of such insurance. Notwithstanding any contribution by Tenant to the costs of insurance premiums as provided in this Lease, Landlord shall not be required to carry insurance of any kind on Tenant's Property, and Tenant hereby acknowledges and agrees that Tenant shall have no right to receive any proceeds from any insurance policies carried by Landlord. 26. Tenant's Proportionate Share of Insurance. Tenant's Proportionate Share of Insurance shall be computed by multiplying the cost of such Insurance by a fraction,the numerator of which shall be the Floor Area of the Premises and the denominator of which shall be the total Floor Area of the buildings within the Shopping Center, including the Premises, but excluding the Floor Area of the Excluded Premises. Landlord's non-binding estimate of Tenant's Proportionate Share of Insurance for the first calendar year is approximately None and 20/100 Dollars($0.20)per square foot of Floor Area of the Premises, on an annualized basis, but nothing in this Section 26 shall be construed as diminishing Tenant's obligation and covenant to pay Tenant's Proportionate Share of Insurance, notwithstanding that Tenant's liability with respect thereto may exceed the estimate set forth above. ARTICLE 9 Late Charge 9 terest established by the applicable Douglas County, Nebraska taxing authority. The term Real Estate Taxes shall not include any income, gross income, franchise, personal property, devolution, estate and inheritance or gift taxes. 8 rice or charge to the customer in the month in which such sale, charge or contact shall be made.Gross Sales shall not include: (i)any fee(including,without 7 27. Late Charge. Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent or any other sums due under this Lease will cause Landlord to incur various expenses not contemplated by this Lease, the exact amount of which are presently difficult to ascertain. Accordingly, if any payment of Minimum Rent, Percentage Rent,if any,Additional Rent or any other amount due from Tenant under this Lease shall not be received by Landlord prior to delinquency, then, in addition to the required payment,Tenant shall also pay to Landlord a"Late Charge"equal to$0.05 for each$1.00 past due, plus interest at the lesser of(i) 18%per annum,or(ii)the highest rate allowed by law(the"Interest Rate").Tenant agrees that the Late Charge represents a fair and reasonable estimate of the expenses that Landlord will incur by reason of a late payment by Tenant. Acceptance of the Late Charge by Landlord shall not constitute a waiver of Tenant's default with respect to any past due amounts, nor prevent Landlord from exercising any other rights and remedies granted to Landlord under this Lease or at law or in equity. The Late Charge and the interest on past due amounts shall constitute Additional Rent. ARTICLE 10 Liens 28. Liens. In no event shall any material or equipment, which is subject to any lien, encumbrance or security interest, be incorporated in or affixed to the Premises. Notice is hereby given that Landlord shall not be liable for any work or materials furnished to Tenant on credit and that no mechanic's or other lien for any such work or materials shall attach to or affect Landlord's interest in the Premises based on any work or material supplied to Tenant or anybody claiming through Tenant. Tenant shall not permit any lien to be filed against the Premises or any portion of the Shopping Center for labor, services or materials claimed to have been performed for or furnished to Tenant,its contractors and subcontractors. Tenant acknowledges that the filing of any lien by Tenant's contractor on the Shopping Center could place Landlord in default of its loan agreements and/or cause draws for completed work to be delayed. If such a lien is filed, Tenant shall discharge the lien within 30 days after notice thereof(the "Lien Cure Period"). In addition, should Tenant fail to pay or"bond over"any liens within the Lien Cure Period, Landlord may(but shall not be obligated to)"bond over"such lien or pay the lien claimant and obtain a release of the lien without inquiring into the validity thereof and without liability to Landlord for any such payment, and offset any costs so incurred against any amount owed Tenant,and Tenant shall,upon demand and as Additional Rent, reimburse Landlord for the amount so paid together with all reasonable attorneys fees incurred by Landlord. Nothing in this Lease shall be construed as a consent or request by Landlord,express or implied,to any contractor,subcontractor,laborer or materialman for the performance of any labor at or the furnishing of any materials to the Premises. ARTICLE 11 No Outside Sales; Loading Areas; Parking 29. No Outside Sales; Loading Areas. Tenant agrees not to use any area outside the Premises, other than the Outdoor Patio Area, for sale or display of any merchandise or any other business,occupation, undertaking or solicitation of customers and further agrees to receive or ship articles of any kind only through loading areas as designated by Landlord. 30. Parking. Tenant's customers and invitees (but not Tenant or its employees) may have the non-exclusive right, together with Landlord and all other tenants and occupants of the 10 s, but nothing in this Section 26 shall be construed as diminishing Tenant's obligation and covenant to pay Tenant's Proportionate Share of Insurance, notwithstanding that Tenant's liability with respect thereto may exceed the estimate set forth above. ARTICLE 9 Late Charge 9 terest established by the applicable Douglas County, Nebraska taxing authority. The term Real Estate Taxes shall not include any income, gross income, franchise, personal property, devolution, estate and inheritance or gift taxes. 8 rice or charge to the customer in the month in which such sale, charge or contact shall be made.Gross Sales shall not include: (i)any fee(including,without 7 Shopping Center, to use the parking spaces in the Shopping Center. Tenant and its employees may have the non-exclusive use, along with other tenants and their employees, to use those parking spaces from time to time designated by Landlord for employee parking,and neither Tenant, nor its employees shall use any other parking spaces in the Shopping Center.Tenant shall,within 5 days after request from Landlord, furnish to Landlord the automobile license numbers of all automobiles owned or used by Tenant or its employees. If there is a violation of the foregoing requirement by any employee of Tenant, Landlord shall give Tenant notice thereof, and if such violation continues following notice to Tenant, Landlord shall have the right,at Landlord's option,to tow any vehicle parked in violation of the terms hereof. Tenant agrees to indemnify, defend and hold Landlord harmless from all claims, suits, actions, damages, liability and claims (including reasonable attorneys'fees) resulting from the violation by Tenant's employees of the provisions of this Section. Landlord may designate certain portions of the parking areas as reserved for use of certain tenants or customers of certain tenants. All parking rights are also subject to ordinances of the City. Anything in this Lease to the contrary notwithstanding, Landlord acknowledges that Tenant's Permitted Use is parking sensitive and Landlord agrees not to lease space in the building in which the Premises is located to a tenant whose parking requirements, as dictated by City code, exceed 10 spaces per 1,000 square feet of Floor Area. In addition, Landlord agrees not to designate parking for employees within the "No Designated Parking Area" depicted on the Site Plan. ARTICLE 12 Construction of the Premises 31. Construction of the Premises. Landlord and Tenant agree that the Premises shall be constructed in accordance with the terms and provisions of Exhibit B-I and Exhibit B-II hereto. Landlord agrees to use its reasonable efforts to complete Landlord's Work and to deliver possession of the Premises to Tenant with all such work substantially completed on or before the Delivery Date. Landlord has made no representations or warranties regarding the condition of the Premises or the Shopping Center, except as expressly set forth in this Lease (including the Work Agreement). ARTICLE 13 Alterations; Roof Penetration; Signs 32. Interior Non-Structural Alterations. Tenant shall have the right to make interior, non-structural alterations or additions to the Premises without Landlord's consent. Tenant shall provide 30 days prior notice to Landlord before the commencement of any non-structural alterations or additions to be made to the Premises. 33. Structural and Exterior Alterations. Tenant shall not make any structural or exterior modifications, improvements,alterations,additions or installations in or to the Premises(the "Alterations")without Landlord's prior consent. Along with any request for Landlord's consent and before commencement of any Alterations or delivery of any materials to be used in any Alterations, Tenant shall furnish Landlord with a complete set of plans and specifications,names and addresses of contractors,copies of permits and licenses,and an indemnification in such form and amount as 11 ndertaking or solicitation of customers and further agrees to receive or ship articles of any kind only through loading areas as designated by Landlord. 30. Parking. Tenant's customers and invitees (but not Tenant or its employees) may have the non-exclusive right, together with Landlord and all other tenants and occupants of the 10 s, but nothing in this Section 26 shall be construed as diminishing Tenant's obligation and covenant to pay Tenant's Proportionate Share of Insurance, notwithstanding that Tenant's liability with respect thereto may exceed the estimate set forth above. ARTICLE 9 Late Charge 9 terest established by the applicable Douglas County, Nebraska taxing authority. The term Real Estate Taxes shall not include any income, gross income, franchise, personal property, devolution, estate and inheritance or gift taxes. 8 rice or charge to the customer in the month in which such sale, charge or contact shall be made.Gross Sales shall not include: (i)any fee(including,without 7 may be reasonably satisfactory to Landlord and a performance bond executed by a commercial surety reasonably satisfactory to Landlord,and in an amount equal to the cost of the Alterations and the payment of all liens for labor and material arising therefrom. Tenant agrees to indemnify, defend and hold Landlord harmless from and against any and all claims and liabilities of any kind and description, which may arise out of or be connected in any way with Tenant's Alterations. All Alterations shall be done only by licensed, bondable contractors or subcontractors reasonably approved by Landlord and at such time and in such manner as Landlord may from time to time reasonably designate. Tenant shall pay the cost of all Alterations (including a reasonable charge for Landlord's services and for Landlord's inspection and engineering time), and also the cost of painting, restoring or repairing any portion of the Premises and the Shopping Center required because of Tenant's Alterations. Upon completion of the Alterations,Tenant shall furnish Landlord with contractor's affidavits and full final, unconditional waivers of liens and receipted bills covering all labor and materials employed in the Alterations. All Alterations shall comply with all insurance requirements and all laws, ordinances, rules and regulations of all governmental authorities (including,without limitation,the Americans With Disabilities Act)and shall be constructed in a good and workmanlike and lien-free manner. Tenant shall permit Landlord to inspect construction operations in connection with any Alterations. Tenant shall not be allowed to make any modifications, improvements,Alterations, additions or installations if such action results or would result in a labor dispute or otherwise would materially interfere with Landlord's operation of the Shopping Center. Subject to applicable federal and state law, in the event any Alterations result in a labor dispute,Tenant shall cause work to be halted immediately, remove the workers,contractors or mechanics responsible for such dispute and replace them with workers, contractors and mechanics acceptable to Landlord and whose work will not(in the sole and absolute discretion of Landlord) result in a labor dispute. 34. Roof Penetration. Tenant must obtain prior approval from Landlord before accessing the roof of the Premises for any type of roof puncture/penetration or attaching any items to the roof, and such work must be performed by Landlord's roofing contractor at a competitive market price or by a contractor approved by Landlord. Tenant shall be responsible for any damage to the Premises,the roof or the building containing the Premises or the Shopping Center caused by Tenant, its agents or contractors, including, but not limited to, any roof puncture/penetration. 35. Tenant's Signs. Tenant shall comply at all times with the provisions of Exhibit C-I with respect to Tenant's interior signs. Tenant's sign plans for any sign to be installed on the exterior of the Premises shall be prepared by Tenant in accordance with the Sign Criteria of the Shopping Center set forth in the Handbook and submitted to Landlord for Landlord's prior written approval. All of Tenant's signs shall comply with all Legal Requirements (defined in this Lease). Tenant shall be responsible for the costs of designing, manufacturing, installing, illuminating, operating and maintaining its signs. Subject to the terms and conditions of this Section 35,Tenant shall have the right to place its signage on the east,west and south exterior walls of the Premises. In addition to the foregoing,and subject to the terms and conditions of this Section 35,Tenant shall have the right to place a blade sign at the northwest corner of the Premises. Upon the termination of this Lease,Tenant shall remove its signs and restore and repair all parts of the Premises and the Building affected by the installation or removal of its signs, to the condition existing prior to installation or to a condition reasonably acceptable to Landlord. If Tenant fails or refuses to remove its sign as herein required, Landlord may, but shall not be obligated to, remove such signs and repair and restore all damage caused by their removal, and Tenant shall pay to Landlord the costs of all such removal, repair and restoration within 10 days after receipt of an invoice therefor. ARTICLE 14 12 g,without 7 Repair and Maintenance 36. Landlord Repairs to Common Areas. Landlord agrees to make the following repairs(which shall include replacements, if necessary)(collectively, "Landlord.Repairs")within a reasonable period of time after receipt of notice from Tenant of the need therefor: 36.1 Structural and non-structural deficiencies of the roof and structural portions of the Premises ("structural portions" consisting only of the foundation and members supporting the roof), the cost of which shall be included in Operating Costs; and 36.2 All repairs to and replacements of utility systems and sewer lines up to the point of the meters located in the mechanical room or, if there is no mechanical room,to the point at which they are stubbed to the Premises, the cost of which shall be included in Shopping Center Operating Costs; PROVIDED, HOWEVER, in the event any damage is caused by one or more acts or omissions of Tenant, its agents, employees, customers or invitees, or any other person (with the exception of Landlord), or if a damaged utility line exclusively serves the Premises,Tenant shall pay the cost of such repairs within 20 days after receipt of an invoice therefor,to the extent the cost of such repairs are not covered by insurance proceeds. Additionally, Landlord shall include in Operating Costs the costs of repair(s) to plumbing and utility lines from the entrance points of the utility lines into the Shopping Center to the mechanical room(s)or, if there is no mechanical room, to the point at which they are stubbed to the Premises. 37. Tenant Repairs. Except as is Landlord's obligation under this Article, Tenant agrees, at its own cost and expense, to take good care of the Premises and Tenant's trash area and to keep them in good and first-class order, condition and state of repair. Tenant's obligation hereunder shall include, but not be limited to, the following: • 37.1 Interior Repairs. Any and all interior repairs, including but not limited to all repairs to its trade fixtures and electrical equipment and fixtures,plumbing fixtures,lines and equipment and other utility lines (including sewer and utility lines within the Premises, and exclusively serving the Premises,from the point of the meters in the mechanical room or,if there is no mechanical room, to the point at which they are stubbed to the Premises), elevators, if any, wiring (including that within walls or ceilings, or under flooring or floor covering, or in or under the slab). In no event shall Landlord be responsible for repair or replacement of or under the floor,slab or floor covering in the Premises,unless such repair or replacement is necessary as a result of a casualty. 37.2 Storefront Repairs. All storefront repairs, including glass and doors, door frames, locks, lifts, openers and hardware; 37.3 Window Repairs. All repairs to windows (including sashes,frames, locks and hardware), and all Tenant's signs (including replacement of signs). 37.4 Maintenance Repair. All the maintenance, repair and replacement of the heating,ventilating and air conditioning system("HVAC System")located in and exclusively of all fixtures, equipment, ducts, machinery, the Premises, including maintenance machinery controls, utilitylines as are used for, in connection with or which appliance and are part of the electrical,plumbing, heating,air conditioning,ventilation or other mechanical 13 t and south exterior walls of the Premises. In addition to the foregoing,and subject to the terms and conditions of this Section 35,Tenant shall have the right to place a blade sign at the northwest corner of the Premises. Upon the termination of this Lease,Tenant shall remove its signs and restore and repair all parts of the Premises and the Building affected by the installation or removal of its signs, to the condition existing prior to installation or to a condition reasonably acceptable to Landlord. If Tenant fails or refuses to remove its sign as herein required, Landlord may, but shall not be obligated to, remove such signs and repair and restore all damage caused by their removal, and Tenant shall pay to Landlord the costs of all such removal, repair and restoration within 10 days after receipt of an invoice therefor. ARTICLE 14 12 g,without 7 systems in and exclusive to the Premises. Tenant shall, within 30 days after the Delivery Date, enter into and provide Landlord a copy of, and thereafter maintain a preventative maintenance contract on the HVAC System in the Premises,which contract shall provide for periodic maintenance in accordance with the manufacturer's specifications. In the event Tenant fails to maintain such preventative maintenance contract, Landlord, at its option, may arrange for such a preventative maintenance contract for the HVAC System; PROVIDED, HOWEVER, Landlord has notified Tenant of this failure of Tenant to comply with the maintenance requirements set forth herein and Tenant has failed to cure such noncompliance within 30 days after receipt by Tenant of Landlord's notice, in which event the cost of such preventative HVAC System maintenance shall be billed directly to Tenant and shall be paid within 10 days after receipt of an invoice therefor. Landlord covenants to Tenant that the roof of the Building and all mechanical electrical and plumbing systems serving the Premises and all systems and equipment located within the Premises that are part of Landlord's Work will be in good working order on the Delivery Date, but makes no representations, covenants or warranties with respect to the condition or continued operation thereof after the Delivery Date. ARTICLE 15 Inspections; Self Help; Construction in the Shopping Center 38. Inspections. Landlord shall have the right, upon reasonable prior notice,except in cases of emergency, (in the event of an emergency, only such notice as is practicable shall be required),to enter upon the Premises for any purpose,including to determine Tenant's compliance with this Lease or to maintain and repair any pipes and/or conduits and/or ducts whether used in the supply of services to Tenant or to other occupants of the Shopping Center. Landlord shall further have the right, on at least 48 hours prior notice to enter the Premises in connection with: (I) construction on the Premises;and(ii)completing any work, repairs,alterations,or improvements in and about the Premises; provided, however, that Landlord shall use reasonable efforts not to unreasonably interfere with Tenant's business operations in the Premises in connection with such work, except that nothing contained herein shall require Landlord to perform such work outside of normal business hours. 39. Landlord's Right to Self Help. If Tenant neglects or refuses to make repairs or to maintain the Premises in good condition or to fulfill any other obligation any,or any part thereof,as required by the terms of this Lease, or to fulfill any other obligation under the terms of this Lease, Landlord or its agents shall have the right, upon giving Tenant at least ten (10)days written notice of its election to do so(except in cases of emergency,in which case only such notice as is practical shall be necessary) to make the repairs or perform the maintenance on behalf of and for the account of Tenant. The work so done by Landlord or its agents shall be paid for by Tenant promptly upon receipt of a bill therefore. If Tenant fails to pay such amount within 30 days,the amount shall accrue interest at the prime rate(as published by the Wall Street Journal),plus 4%from the date of demand until paid. Nothing herein shall imply any duty on the part of Landlord to do any work which Landlord is not specifically and expressly required to perform under this Lease or which,under any provisions of this Lease, Tenant is required to perform, and the performance of such work by Landlord shall not constitute a waiver of Tenant's default.Landlord shall have no liability to Tenant for any loss or damage which may result to its stock or business by reason of such repairs, replacements or actions 14 affected by the installation or removal of its signs, to the condition existing prior to installation or to a condition reasonably acceptable to Landlord. If Tenant fails or refuses to remove its sign as herein required, Landlord may, but shall not be obligated to, remove such signs and repair and restore all damage caused by their removal, and Tenant shall pay to Landlord the costs of all such removal, repair and restoration within 10 days after receipt of an invoice therefor. ARTICLE 14 12 g,without 7 40. Construction in the Shopping Center. In connection with any construction, excavation or other building operations related to changes to the Shopping Center, Landlord, its agents, employees and contractors shall have the right of access to enter the Premises and to strengthen, add to or shore the foundations,walls, columns or supporting members thereof,and to erect scaffolding and/or protective barricades around and about the Premises (but not so as to preclude entry thereto) and to do any act or thing necessary for the safety or preservation of the Premises, in Landlord's sole discretion, and Landlord shall use its reasonable efforts to complete all (considering in the Premises as promptly as possible ( g the nature and extent of the construction and subject to prudent construction practices) and shall use reasonable efforts not to unreasonably interfere with Tenant's business operations in the Premises in connection with such work, except that nothing contained herein shall require Landlord to perform such work outside of normal business hours. Tenant's obligations under this Lease shall not be affected by any such changes, construction, excavation or other building operations, and so long as Landlord acts loss of business or an for anyinconvenience, disturbance, Y reasonably, Landlord shall not be liable other annoyance arising therefrom. ARTICLE 16 Utilities/Meters; Interruption of Service 41. Utilities/Meters. Landlord shall provide utility lines to the Premises as set forth in Exhibit B-I. Tenant agrees to obtain and pay all charges for electricity, gas, water, trash pickup, sanitary sewer and other utility bills from and after the Delivery Date. If any utility services are not r ortion to be as Additional Rent, a reasonable o metered to Tenant, Tenant shall payproportion separately determined by Landlord of all charges jointly metered with other premises. Tenant shall provide at its own expense air conditioning and heating and shall pay any tap, connection and hook-up fees, and security and other deposits, payable in connection with the utilities serving the Premises. All utilities shall be transferred into Tenant's name immediately upon possession and if Tenant fails to do so Landlord shall have the right to have the utility service to the Premises terminated. Tenant shall be required to share trash dumpsters with other tenants and/or occupants of the Shopping pa y joint trash disposal and Center and in connection therewith Tenant compactor costs p directly to the provider of the trash removal services at the Shopping Center. If Tenant installs any electrical equipment that overloads the lines in the Premises, Tenant shall, at its own expense, make whatever changes are necessary to comply with the requirements of codes and ordinances of the City or any governing body having jurisdiction. 42. Interruption of Service. Landlord shall not be liable to Tenant or to any other party occupying any part of the Premises or otherwise,for any failure,interruption,or defect in the supply, pressure or character of water,electric energy or any other utility service furnished to the Premises or to the Common Areas (whether furnished by Landlord or by others) by reason of any requirement, act or omission of the public utility company serving the Shopping Center with electricity, water, or other utility service, or because of necessary repairs or improvements. If any service or utility furnished by the utility company directly to the Premises is interrupted by reason of the grossly negligent act or willful misconduct of Landlord or its agents,then in addition to any other rights and remedies available to Tenant under this Lease and provided further that such service is not restored within 5 days after the occurrence of such failure or inability (which period shall be extended by Force Majeure), Tenant's sole remedy shall only be a proportional abatement of the Minimum Rent to the extent such failure interferes with the conduct of Tenant's business for each full business day thereafter that such service is not furnished until the date that such service is restored. 15 restoration within 10 days after receipt of an invoice therefor. ARTICLE 14 12 g,without 7 ARTICLE 17 Insurance and Indemnity 43. Tenant's Insurance. Tenant, at its sole expense, shall obtain and keep in force during the Term the following insurance with an insurance company authorized to do business in the state in which the Premises are located and which has a general policy rating of A-or better and a financial class of VI or better by A.M. Best Company, Inc. (or if a rating of A.M. is no longer available, a similar rating from a similar or successor service): 43.1 "Special Form Causes of Loss" property insurance (including vandalism and malicious mischief coverage)covering all of Tenant's property located in the Premises (i.e.,including furniture,fixtures,equipment, merchandise and any other personal property located in the Premises) (collectively, "Tenant's Property"), plate glass and all Leasehold Improvements(as defined in this Lease)in the Premises made and paid for by Tenant,in an amount equal to the full replacement cost thereof; 43.2 Business Interruption. Business interruption insurance in an amount that will reimburse Tenant for direct or indirect loss of earnings attributable to all perils insured against under the subsection immediately above or attributable to the prevention of access to the Premises by civil authority; and sufficient to reimburse Tenant for Rent in the event of a casualty to, or temporary taking of, the Shopping Center or the Premises; 43.3 Commercial General Liability Insurance. Commercial general liability insurance, including Dram Shop or host liquor liability (if alcoholic beverages are sold or served in, from or about the Premises),written on an occurrence basis including personal injury, bodily injury, broad form property damage, operations hazard, owner's protective coverage, contractual liability, with a cross liability clause and a severability of interests clause to cover Tenant's indemnities set forth herein, and products and completed operations liability,and including specific coverage for Tenant's security guards,in limits not less than $3,000,000.00 inclusive per occurrence and $5,000,000.00 annual aggregate; 43.4 Employer's Liability Insurance. Employer's Liability insurance, with a waiver of subrogation endorsement,with a limit of not less than$500,000.00 per accident, and Worker's Compensation, in form and amount as required by applicable law; 43.5 Builder's Risk Insurance. In the event Tenant performs any repairs or alterations in the Premises, Builder's Risk insurance on a "Special Form"basis(including collapse) on a completed value (non-reporting)form for full replacement cost covering all work incorporated in the Shopping Center and all materials and equipment in or about the Premises; and 43.6 Insurance Changes. Any other form or forms of insurance or any changes or endorsements to the insurance required herein as Landlord,or any mortgagee or lessor of Landlord may require, from time to time, in form or in amount. 44. Policies of Insurance. Tenant shall have the right to include the insurance required by this Article under Tenant's policies of"blanket insurance," provided that no other loss which may also be insured by such blanket insurance shall affect the insurance coverages required 16 by others) by reason of any requirement, act or omission of the public utility company serving the Shopping Center with electricity, water, or other utility service, or because of necessary repairs or improvements. If any service or utility furnished by the utility company directly to the Premises is interrupted by reason of the grossly negligent act or willful misconduct of Landlord or its agents,then in addition to any other rights and remedies available to Tenant under this Lease and provided further that such service is not restored within 5 days after the occurrence of such failure or inability (which period shall be extended by Force Majeure), Tenant's sole remedy shall only be a proportional abatement of the Minimum Rent to the extent such failure interferes with the conduct of Tenant's business for each full business day thereafter that such service is not furnished until the date that such service is restored. 15 restoration within 10 days after receipt of an invoice therefor. ARTICLE 14 12 g,without 7 hereby and further provided that Tenant delivers to Landlord a certificate specifically stating that such coverages apply to Landlord, the Premises and the Shopping Center. All such policies of insurance or certificates thereof shall name Landlord, Landlord's manager, and all mortgagees of Landlord, as additional insured's, as their respective interests may appear. Tenant shall deliver to Landlord certificates evidencing the required insurance by the Delivery Date and, with respect to renewals of such policies, not later than 30 days prior to the end of the expiring term. All policies of insurance carried by Tenant shall be primary and Tenant shall not carry any separate or additional insurance concurrent in form or contributing in the event of any loss or damage with any insurance required to be maintained by Tenant under this Lease. All policies and certificates shall contain an agreement by the insurers that the policies will not be invalidated as they affect the interests of Landlord and:. Landlord's mortgagees by reason of any breach or violation of warranties, representations,declarations or conditions contained in the policies and that the insurers shall notify Landlord and any mortgagee of Landlord, by certified U.S. mail, return receipt requested, not less than 30 days before any lapse, material change or cancellation, including cancellation for nonpayment of premium, or other termination thereof or change therein and shall include a clause or endorsement denying the insurer any rights or subrogation against Landlord. If Tenant shall serve, dispense or sell alcoholic beverages of any kind in the Premises, Tenant shall comply with the Dram Shop requirements of the laws of the state in which the Premises are located and shall obtain insurance for such protection as required by Landlord. 45. Uses Which Affect Insurance. Tenant shall not knowingly conduct or permit to be conducted in the Premises any activity, or place any equipment in or about the Premises or the Shopping Center, which will invalidate the insurance coverage in effect or increase the rate of insurance on the Premises or the Shopping Center, and Tenant shall comply with all requirements and regulations of Landlord's property and liability insurers. If any invalidation of coverage or increase in the rate of insurance occurs or is threatened by any insurance company due to any act or omission by Tenant,or its agents,employees, representatives, or contractors,such statement or threat shall be conclusive evidence that the increase in such rate is due to the act of Tenant, and Tenant shall be liable for the increase and such amount shall be considered Additional Rent payable with the next monthly installment of Minimum Rent due under this Lease. 46. Waiver of Subrogation. Each party hereby releases the other party (and their respective agents, officers and employees) from any liability, right of recovery, claim, action or cause of action the other party may have on account of loss,cost damage or expense which arises from any peril that is or would be covered by any policy of property insurance required to be carried under this Lease(regardless of whether such insurance is actually being carried)regardless of the negligence of the party being released or its agents,contractors,officers or employees,and waives any right of subrogation which might otherwise exist in or accrue to any person on account thereof, including that of the insurance carriers of the other party. Landlord and Tenant shall give their respective insurance carriers written notice of the terms of the above mutual waivers and the parties' respective insurance policies shall be properly endorsed, if necessary, to prevent the Invalidation of said policies by reason of such waivers. - 47. Indemnification. Tenant hereby waives all claims against Landlord for damage to any property or injury to, or death of, any person in, upon, or about the Shopping Center, including the Premises, arising at any time and from any cause, except to the extent caused by or arising from the breach or default by Landlord in the performance of any obligation of Landlord under this Lease or the gross negligence or willful misconduct of Landlord, its agents, employees, or contractors. Tenant shall, and hereby agrees to, indemnify, defend and hold Landlord harmless from any damage to any property or injury to, or death of, any person arising from the use or occupancy of the Premises by Tenant, its agents, employees, contractors, successors, assigns, 17 licensees, or invitees,except to the extent such damage is caused by the gross negligence or willful misconduct of Landlord, its agents,employees,or contractors. Without limiting the generality of the foregoing, Landlord shall not be liable for any injury or damage to persons or property resulting from the condition or design of, or any defective, Shopping Center or its mechanical systems or equipment which may exist or occur or matters arising out of the provision or lack of provision of security, or the action or inaction of any third party security contractor, or from any fire, explosion, falling plaster, steam, gas, electricity, water, rain, flood, snow, or leaks from any part of the Premises or from the pipes, appliances, plumbing works, roof, or subsurface of any floor or ceiling, or from the street or any other place, or by dampness or by any other similar cause, except to the extent caused by or arising from the breach or default by Landlord in the performance of any obligation of Landlord under this Lease or the gross negligence or willful misconduct of Landlord,its agents, employees, or contractors. Landlord shall not be liable for any such damage caused by other tenants or persons in the Shopping Center or by occupants of property adjacent thereto,or by the public,or caused by construction,except to the extent caused by the gross negligence or willful misconduct of Landlord, its agents, employees, or contractors or by any private,public or quasi- public work. Tenant's foregoing indemnity shall include attorneys'fees, investigation costs and all other reasonable costs and expenses incurred by Landlord in any connection therewith. The provisions of this Section shall survive the expiration or termination of this Lease with respect to any damage, injury or death occurring before such expiration or termination. If Landlord is made a party to any litigation commenced by or against Tenant or relating to this Lease or to the Premises, and provided that in any such litigation Landlord is not finally adjudicated to be at fault,then Tenant shall pay all costs and expenses, including attorneys'fees and court costs, incurred by or imposed upon Landlord because of any such litigation, and the amount of all such costs and expenses, including attorneys' fees and court costs, shall be a demand obligation owing by Tenant to Landlord. Landlord reserves the right to retain counsel of its choice, at Tenant's expense, to defend against any such claims or actions. Notwithstanding anything in this Section to the contrary, Landlord shall • not be liable to Tenant for any claims resulting from the gross negligence or willful misconduct or any other act or omission of Landlord, its agents, employees, or contractors to the extent such claims are covered by the types of insurance Tenant is to maintain pursuant to this Lease, and under no circumstances shall Landlord ever be liable for consequential damages or special damages; and all liability of Landlord for damages for breach of any covenant,duty or obligation of Landlord may be satisfied only out of the interest of Landlord in the Shopping Center existing at the time any such liability is adjudicated in a proceeding as to which the judgment adjudicating such liability is non-appealable and not subject to further review. Subject to Section 10 hereunder, Landlord hereby waives all claims against Tenant for damage to any property or injury to, or death of, any person in, upon, or about the Common Areas, except to the extent caused by the gross negligence or willful misconduct of Tenant, its agents, employees,or contractors. Except to the extent such damage is caused by the gross negligence or willful misconduct of Tenant, its agents, employees, or contractors, Landlord shall, and hereby agrees to, indemnify,defend and hold Tenant harmless from any damage(excluding consequential, punitive, special, incidental and similar type damages)to any property or injury to,or death of,any person on the Common Areas, provided Tenant tenders defense of any claim made against Tenant which is subject to Landlord's indemnity to Landlord in sufficient time to avoid prejudice to Landlord for handling by counsel of Landlord's selection and reasonably acceptable to Tenant. ARTICLE 18 Third Party Claims; Tenant's Risk 18 hereby agrees to, indemnify, defend and hold Landlord harmless from any damage to any property or injury to, or death of, any person arising from the use or occupancy of the Premises by Tenant, its agents, employees, contractors, successors, assigns, 17 48. Third Party Claims. Landlord shall have no liability to Tenant in the event of damage to or loss of personal property (including Tenant's Property) within the Premises arising from any act or omission of co-tenants or other occupants of the Shopping Center, or of their employees, or of other third parties. 49. Tenant's Risk. All personal property in the Premises shall be at Tenant's sole risk, and Landlord shall not be liable for any damage done to, or loss of, such personal property, or for damage or loss suffered by the business income or occupation of Tenant arising from any act of neglect of third parties, or from bursting, overflowing, or leaking of water, sewer or steam pipes, rain,wind,tornadoes,floor or other surface or subsurface water,from overflow of drainage facilities or backup or stoppage of any drain,sewer or other water runoff facility or device or from the heating or plumbing fixtures, noise,dust, or from electric wires, or from gas, odors, natural disaster, riot or act of violence, leaking roofs or caused in any other manner, except to the extent caused by the gross negligence or willful misconduct of Landlord, its agents, employees, or contractors. Tenant shall give Landlord prompt notice of any accident to, defect in or problem in the Premises or Building housing the Premises of which Tenant has knowledge or notice. ARTICLE 19 Assignment and Subletting 50. Consent of Landlord. Tenant shall not assign this Lease or sublet the Premises or any part thereof or mortgage, pledge or hypothecate its leasehold interest or grant any concession or license within the Premises or sublease any operating department therein, whether by sale, assignment,death, incompetency,mortgage,deed of trust,trust,operation of law or otherwise,and whether voluntary or involuntary. Any attempt to do any of the foregoing shall be void and of no force or effect. This prohibition shall be construed to include a prohibition against an assignment or subletting by operation of law. Notwithstanding anything to the contrary in this Lease, Landlord acknowledges and consents to the license by Tenant of a portion of the Premises, not to exceed 10%of the Floor Area of the Premises,to a third party for catering purposes. Any fees payable by such third party caterer to Tenant for the use of the Premises and the equipment therein shall be retained by Tenant and shall not be included in Gross Sales; provided,however,the total amount of any proceeds received by Tenant with respect to food and beverage sales or other sales generated by such third party caterer shall be included in Gross Sales. 51. Corporate,Partnership or Limited Liability Company Transfer. Any transfer of Tenant's interest in this Lease by merger, consolidation or dissolution or any change in ownership or power to vote a majority of the voting stock or majority in interest in Tenant, if Tenant is a corporation or limited liability company, or any transfer of this Lease by transfer of any other ownership interest of Tenant, or any Guarantor, during the Term of this Lease shall constitute an assignment for the purpose of this Lease, and shall not be permitted unless Tenant obtains the express consent of Landlord. For purposes of this paragraph the term"voting stock"shall refer to shares of stock or interest of any kind, regularly entitled to vote for the election of directors, managing partners, or managers or their equivalent of the corporation, limited liability company, partnership or other entity involved. 52. Assignment, Pledging. If this Lease is assigned or if the Premises are subleased • (whether in whole or in part) or in the event of the mortgage, pledge or hypothecation of the leasehold interest or grant of any concession or license within the Premises or if the Premises are occupied in whole or in part by anyone other than Tenant in violation of this Article:(i)Landlord may 19 ommon Areas, provided Tenant tenders defense of any claim made against Tenant which is subject to Landlord's indemnity to Landlord in sufficient time to avoid prejudice to Landlord for handling by counsel of Landlord's selection and reasonably acceptable to Tenant. ARTICLE 18 Third Party Claims; Tenant's Risk 18 hereby agrees to, indemnify, defend and hold Landlord harmless from any damage to any property or injury to, or death of, any person arising from the use or occupancy of the Premises by Tenant, its agents, employees, contractors, successors, assigns, 17 nevertheless collect rent from the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated,concessionee or licensee or other occupant and apply the net amount collected to the Rent payable hereunder without being deemed to have approved or consented to such action by Tenant; or(ii) Landlord shall have the right to re-enter the Premises, assume and take possession of the whole or any part thereof, and remove all persons or personal property therefrom, by direct or summary action,or in a different type of suit or proceeding,by force, or otherwise,without being deemed guilty of trespass or other actionable wrong by reason thereof, and without being liable for damages therefore or in connection therewith, and after demand made therefore, Tenant or anyone in possession claiming under Tenant shall be deemed guilty of unlawful detainer and subject to such summary or other action as may be provided by law. 53. Event of Assignment or Subletting. If Tenant wishes to assign this Lease or sublet all or any part of the Premises, it shall first give notice (by certified mail or by personal delivery) of such intention to Landlord, furnishing Landlord with a copy of the final proposed assignment or sublease document and with full information as to the identity and financial status of the proposed assignee or subtenant. Within 30 days after receipt of such notice and documentation from Tenant, Landlord shall have the right, by notice to Tenant,to either: (i)terminate this Lease,in which case Tenant will be relieved of further liability hereunder and under the proposed assignment or sublease; or(ii)approve or reject such assignment or subletting; or(iii)convert the assignment or sublease into a direct lease between Landlord and such proposed assignee or sublessee and receive all of the rents. If no such response is given, Landlord shall be deemed to have elected to disapprove the assignment or subletting. 54. Related Entities. Notwithstanding anything herein to the contrary,Tenant,without Landlord's prior consent but otherwise subject to the conditions set forth in the preceding Section, may assign this Lease or sublet the whole of the Premises to a legal entity which is either: (I)the successor, by merger or otherwise,to all or substantially all of Tenant's assets and liabilities; or(ii) controls or is controlled by or is under common control with Tenant. Any such assignment or subletting shall be otherwise subject to and upon all of the terms, provisions and covenants of this Lease. However, any assignment, including(i)or(ii)above,shall not in any way relieve Tenant of liability as to any term or condition of this Lease without the express approval of Landlord. Landlord agrees to give an estoppel letter to any assignee or sublessee to which Landlord consents or for which Landlord's consent is not required,upon request from such assignee or sublessee. Any sale, assignment, mortgage, transfer or subletting of this Lease which is not in compliance with the provisions of this Article shall be void and of no further force or effect. All rentals paid to Tenant by an assignee or sublessee shall be received by Tenant in trust for Landlord and forwarded immediately to Landlord without offset or reduction,or,at Landlord's election,such rentals shall be paid directly to Landlord (to be applied as a credit and offset to Tenant's Rent obligations). Except as specifically set forth in Section 50 of this Lease, all consideration paid to Tenant for an • assignment,sublease or other right to use the Premises which is in excess of the amount required to be paid over to Landlord for the use of the Premises(or pro rata portion of the amount required to be paid to Landlord in the case of a sublease of a portion of the Premises)shall be paid to Landlord by Tenant upon receipt. Tenant shall pay all costs incurred by Landlord in connection with any proposed assignment or sublease and shall pay any brokerage commission incurred by reason of any such proposed assignment or sublease. 55. No Release or Waiver. Notwithstanding any provision of this Article or this Lease, no consent or action by Landlord, and no assignment or subletting permitted by Landlord, shall be deemed a waiver or a release of Tenant from the performance by Tenant of its covenants, duties and obligations hereunder. All obligations and duties shall continue notwithstanding any such consent, assignment or subletting. 20 the Premises by Tenant, its agents, employees, contractors, successors, assigns, 17 • ARTICLE 20 • Landlord Transfer 56. Landlord Transfer. Landlord reserves the right to sell or otherwise assign its interest in this Lease or the Premises and the acquisition of title or of Landlord's interest in this Lease by a subsequent owner shall not affect or impair this Lease, including a transfer by reason of foreclosure. If Landlord conveys or transfers its interest in the Premises, upon such conveyance or transfer, Landlord(and in the case of any subsequent conveyances or transfers,the then grantor or transferor) shall be released from all liability with respect to the performance of any obligations on the part of Landlord to be performed hereunder from and after the date of such conveyance or transfer. Upon notice of such transfer(including a transfer by foreclosure), Tenant shall attorn to the new owner as landlord. ARTICLE 21 Permitted Use; Exclusives; Future Restriction; ECR; Legal Requirements; Radius Restriction 57. Permitted Use. It is understood and agreed between the parties hereto that during the Term of this Lease, the Premises shall be used and occupied only for the Permitted Use as defined in ITEM 6 of the Cover Sheet and for no other purpose or purposes without the prior written consent of Landlord. In addition to Tenant's agreement to operate only for the Permitted Use as hereinabove provided, Tenant expressly covenants and agrees that it shall not operate or.permit any operation in the Premises so as to violate or permit the violation of any of the exclusives and/or restrictions which have been negotiated to date(collectively,the"Exclusives"),which are set forth in Exhibit E attached hereto and incorporated herein by this reference. Additionally,without in any . way expanding upon the Permitted Use defined herein,Tenant expressly agrees that Tenant shall not use the Premises or permit the Premises to be used for any of the uses or purposes prohibited in or reserved by any other tenant pursuant to the Exclusives. In the event that Tenant's use conflicts with any use protected by the Exclusives,Landlord shall give Tenant written notice of same and Tenant shall immediately cease the use.of the Premises for the prohibited use within 5 days thereafter. In the event Tenant fails to cease such prohibited use aforestated,then Tenant agrees to indemnify, defend, and hold harmless Landlord from and against any and all claims, demands, actions, causes of action, losses (including, but not limited to, loss of rents resulting from the termination by another tenant of its lease), damages, costs, and expenses, including court costs and attorneys'fees,and including any cost or legal expenses of Landlord in enforcing the restriction as and against Tenant and otherwise arising from or related to wholly or in part, the use of the Premises for any purpose prohibited or listed in Exhibit E. Tenant shall promptly comply with'the "ECR"(defined below),the Exclusives,all encumbrances of record affecting the Premises,all laws, ordinances and lawful orders,regulations and any rules and regulations of the Shopping Center,as may be amended or promulgated in the future,affecting the Premises and the cleanliness, safety, occupation and use of the same. In addition to other restrictions on the use of the Premises, the Premises are expressly prohibited from all uses set forth on Exhibit H attached hereto and incorporated herein by this reference and the Premises are subject to, and Tenant shall abide by, the Shopping Center Rules and Regulations attached hereto as Exhibit C-1. Further,Tenant shall not violate any future exclusive or restriction that is negotiated by Landlord and applicable to the • 21 . )shall be paid to Landlord by Tenant upon receipt. Tenant shall pay all costs incurred by Landlord in connection with any proposed assignment or sublease and shall pay any brokerage commission incurred by reason of any such proposed assignment or sublease. 55. No Release or Waiver. Notwithstanding any provision of this Article or this Lease, no consent or action by Landlord, and no assignment or subletting permitted by Landlord, shall be deemed a waiver or a release of Tenant from the performance by Tenant of its covenants, duties and obligations hereunder. All obligations and duties shall continue notwithstanding any such consent, assignment or subletting. 20 the Premises by Tenant, its agents, employees, contractors, successors, assigns, 17 Premises or the Shopping Center("Future Restriction"); provided that Landlord has given written notice of such Future Restriction to Tenant. Landlord agrees that any restriction granted after the date of this Lease which would in any way limit or restrict Tenant's right to use the Premises for the Permitted Use shall have no application whatsoever to Tenant's conduct of said Permitted Use in the Premises so long as this Lease is in full force and effect. In the event Tenant violates any of the provisions of this Section, Landlord shall have all rights and remedies provided in this Lease, in addition to all rights and remedies available to Landlord at law or in equity, including, but not limited to, injunctive relief. 57.1 Exclusive. Landlord agrees that during the time that Brixco is the Tenant under the terms of this Lease and has not assigned or otherwise transferred its interest in this Lease or sublet the Premises or any part thereof, and so long as Brixco is conducting as a primary business in the Premises off-premises retail wine sales under the trade name Brixco Wine&Spirits Emporium and Brix by the Glass, Landlord shall not lease any space in the Shopping Center to (i) any future tenant or occupant for the permitted purpose of conducting as a primary business off- premises retail wine sales, and (ii) to any future tenant or occupant utilizing an enomatic wine servingsystem or other automated smartcard system for on-premises wine sales; provided, Y Yp , however: (i)the terms and provisions of this Section 57.1 shall not apply to nor be of any force or effect with respect to (a)any existing tenant or occupant of the Shopping Center(i.e. any tenant or occupant under an executed lease or occupancy or purchase agreement), or any successor, assignee or sublessee of such existing tenant or occupant,for so long as any such existing tenant's lease or any renewal, extension or replacement (in connection with a bankruptcy or leasehold mortgage foreclosure proceeding)thereof,or any such existing occupant's occupancy agreement, is in effect, or to the Premises demised thereunder; provided, however, if any existing tenant or occupant proposes to change its present use or enter into an assignment or sublease transaction, and the proposed use of the premises is different from the present use of such premises, then to the extent Landlord's consent or approval is required for any such change in use, Landlord shall not consent to any such change in use if such change would violate the exclusive rights of Tenant hereunder unless (x) such change in use is for a purpose presently permitted by such lease or occupancy agreement which does not require the consent of Landlord thereunder, (y) Landlord is not permitted pursuant to the terms of such lease or occupancy agreement to enforce Tenant's rights hereunder in connection with such change in use, or (z) Landlord's failure to approve or consent to a change in use would be unreasonable under the terms of any such lease or occupancy agreement for which Landlord's consent is required to be reasonable, (b)any future national tenant or occupant of the Shopping Center leasing or occupying more than 40,000 square feet of space in the Shopping Center, provided such tenant or occupant does not derive thirty percent (30%) or more of its revenues from off-premises retail wine, beer and liquor sales,or(c)any premises leased or owned by any of the foregoing; and (ii)the terms of this Section 57.1 shall expire without further act of the parties if Landlord terminates Tenant's right to possession of the Premises (with or without a termination of the Lease) or Tenant fails to conduct the Permitted Use subject to and in accordance with the conditions and limitations contained herein for a period of sixty (60) consecutive days. For purposes hereof, off-premises retail wine, beer and liquor sales as a primary business shall mean seventy percent (70%) or more of Tenant's Gross Sales consists of the operation of such primary business. For purposes hereof, off-premises retail wine sales as a primary business shall mean that the greater of fifteen percent (15%) or more of any future tenant's or occupant's revenues from the operation of such primary business conducted at such future tenant's or occupant's premises consist of, or fifteen percent (15%) or more of the retail Floor Area of such future tenant's or occupant's premises is dedicated to the operation of such primary business. Notwithstanding the foregoing, Landlord shall refrain from leasing to any future tenant or occupant 22 that derives any revenue or devotes any retail Floor Area to the use of an enomatic wine serving system or other automated smartcard system for on-premises wine sales. This agreement of Landlord shall operate only to the extent Landlord's covenants and agreements are not contrary to public policy or contrary to law. In the event Landlord violates the provisions of this Section 57.1, and such violation continues for a period of more than 30 days after receipt of written notice thereof from the Tenant, then Tenant shall have the right (as its sole and exclusive remedy for such violation) to pay an amount("Exclusive Alterative Rent")equal to one-half(1/2)of Minimum Rent in lieu of Minimum Rent,commencing as of the expiration of such 60 day period and continuing thereafter. During any period that Exclusive Alternative Rent is payable,Tenant shall continue to pay Percentage Rent and Additional Rent and all other charges otherwise payable under this Lease at the times specified herein. If such violation continues for a period of eighteen (18)full consecutive calendar months, Tenant shall, as its sole and exclusive remedy, either(y)terminate this Lease by giving Landlord written notice of such election (if at all)within 30 days after expiration of such 18 month period, or (z)resume payment of full Minimum Rent plus Additional Rent commencing on the date which is 30 days after expiration of such 18 month period. Failure of Tenant to terminate this lease within the time period prescribed above shall constitute a waiver of the termination right provided herein. In the event(i)any tenant or occupant conducts as a primary business off-premises retail wine sales in violation of the terms and provisions of such tenant's or occupant's lease or occupancy agreement, or (ii) any tenant or occupant utilizes an enomatic wine serving system or other automated smartcard system for on-premises wine sales in violation of the terms and provisions of such tenant's or occupant's lease or occupancy agreement,then Landlord shall use commercially reasonable, good faith efforts, including, without limitation, commencing litigation proceedings for injunctive relief to cause such tenant or occupant in the Shopping Center to cease conducting as a primary business off-premises retail wine sales, or to cease utilizing an enomatic wine serving system or other automated smartcard system for on-premises wine sales, as the case may be, in violation of the terms and provisions of such tenant's or occupant's lease or occupancy agreement. The exclusive rights granted under this Section 57.1 are personal to Brixco, and shall not be assigned to nor inure to the benefit of any other party. 58. ECR. It is understood by the parties that this Lease is subject to and governed by, and Tenant hereby agrees to promptly remedy, upon receipt of notice, any failure to comply with that certain Declaration of Reciprocal Easement, Covenants and Restrictions Agreement dated June 23, 2003 by and between 168th Dodge, L.P. and Scheel's All Sport, Inc. (as it may be supplemented, amended or modified from time to time,the"ECR"). Tenant acknowledges receipt of a copy of the ECR. In addition, this Lease is subject to the restrictions specifically set forth therein. Landlord,as Developer under the ECR,covenants to use commercially reasonable efforts to enforce Section 10.15 of the ECR in accordance with its terms against any party violating the terms of said Section 10.15 of the ECR. Landlord also agrees,as Developer under the ECR,not to amend the ECR to permit the operation of a bar,tavern or nightclub in the Shopping Center except as currently permitted by Section 10.15. 59. Legal Requirements. Tenant shall be obligated (and shall be responsible) for complying with any Legal Requirements, which pertain to Tenant's use and occupancy of the Premises, whether such Legal Requirements are structural or nonstructural in nature. The term "Legal Requirements" means all applicable current or future statutes, ordinances, orders, rules, regulations, judgments and requirements of public authorities with jurisdiction and all applicable requirements of Landlord's insurance carriers relating to the Premises(to the extent made known to the party responsible for complying therewith). Tenant shall not do or permit anything to be done in or about the Premises, nor bring or keep anything therein which is not within the Permitted Use of 23 such primary business. Notwithstanding the foregoing, Landlord shall refrain from leasing to any future tenant or occupant 22 the Premises which will in any way increase the existing rate of or affect any fire or other insurance , upon the Premises or the Shopping Center or any of its contents, or cause a cancellation of any insurance policy covering said Premises or the Shopping Center or any part thereof or any of its contents. Further, Tenant shall furnish and maintain an adequate number of fire extinguishers in good operating condition as may be reasonably required by Landlord or any governmental authority, and in any event,not less than 1 such extinguisher for each floor or level of the Premises. 60. Radius Restriction. Tenant agrees that if during the Term of this Lease, either Tenant or any person, corporation, partnership,joint stock association, trust or other firm or entity which controls Tenant or is controlled by Tenant or is under common control with Tenant(and also, in the event Tenant is a corporation, if any officer or director thereof or shareholder directly or indirectly owning more than 10%of the outstanding stock thereof,or parent,subsidiary or related or affiliated corporation) either directly or indirectly, commences operation of or operates any store selling or otherwise sells any merchandise or services of the type to be sold by Tenant in the Premises as provided herein or similar or related items, or in any other manner competes with the business provided herein to be conducted by Tenant at the Premises,within a radius of 5 air miles of the Premises,which Tenant acknowledges is a reasonable area for the purpose of this provision, then in such event,the Rent payable by Tenant hereunder shall be adjusted as follows: during the period of such other store's operation, the monthly Minimum Rent shall be the greater of: (i) 150% of the amount stipulated in this Lease for each calendar month during the Term hereof during which such operations are conducted; or(ii)the aggregate of Minimum Rent when added to Percentage Rent, calculated as if 100% of all amounts sold at such other store are added to Gross Sales from the Premises. Such adjustment reflects the agreement of the parties as to the damages, which Landlord would likely incur by reason of the diversion of business and customer traffic from the Premises and Shopping Center to such other store within such radius, as a proximate result of the operation of such other store. Tenant shall provide statements of Gross Sales with respect to sales from such other store in the manner and at the times set forth in this Lease,and Landlord shall have the same rights with respect to such statements as Landlord has under this Lease. ARTICLE 22 Bankruptcy and Other Actions 61. Bankruptcy Event. Any Event of Default of the type described in the subsection entitled"Bankruptcy"under the Default provisions of this Lease(a"Bankruptcy Event")shall be deemed in material breach of Tenant's obligations hereunder and this Lease shall thereupon automatically terminate. Landlord does, in addition,reserve any and all other remedies provided in this Lease or in the law in connection with any Bankruptcy Event. 61.1. No default of this Lease by Tenant, either prior to or subsequent to the happening of any Bankruptcy Event,shall be deemed to have been waived unless expressly done so in writing by Landlord. 61.2. It is understood and agreed that this is a lease of real property in a shopping center as such a lease is described in Section 365(b)(3) of the Bankruptcy Code, that Landlord is entitled to ail rights and benefits of a landlord thereunder, and that nothing contained herein shall be deemed a waiver of any such right or benefit. 61.3. Subject to applicable federal and state law,included within and in addition to any other conditions or obligations imposed upon Tenant or its successor in the event of 24 gal Requirements are structural or nonstructural in nature. The term "Legal Requirements" means all applicable current or future statutes, ordinances, orders, rules, regulations, judgments and requirements of public authorities with jurisdiction and all applicable requirements of Landlord's insurance carriers relating to the Premises(to the extent made known to the party responsible for complying therewith). Tenant shall not do or permit anything to be done in or about the Premises, nor bring or keep anything therein which is not within the Permitted Use of 23 such primary business. Notwithstanding the foregoing, Landlord shall refrain from leasing to any future tenant or occupant 22 • assumption and/or assignment of this Lease in connection with any Bankruptcy Event are the following:(i)the cure of any monetary defaults and the reimbursement of pecuniary loss within not more than 30 days of assumption and/or assignment; (ii) the deposit of an additional sum equal to 3 months of Minimum Rent and Additional Rent to be held as security; (iii) the use of the Premises as set forth in this Lease with the quality, quantity and/or lines of merchandise of any goods or services required to be offered for sale unchanged with a covenant of continuous operation by Tenant or its successor; (iv) the reorganized debtor or assignee of such debtor in possession or Tenant's trustee demonstrates in writing that it has retailing experience in shopping centers of comparable size and financial ability to operate a retail establishment out of the Premises in the manner contemplated in this Lease and meets all other reasonable criteria of Landlord as did Tenant upon execution of this Lease; (v)the prior written consent of any mortgagee to which this Lease has been assigned as collateral security; and(vi)the Premises,at all times, remains a single store and no physical changes of any kind may be made to the Premises unless in compliance with the applicable provisions of this Lease. ARTICLE 23 Tenant's Property; Leasehold Improvements 62. Tenant's Property. Upon the expiration or earlier termination of this Lease,Tenant shall remove all of Tenant's Property from the Premises. Tenant shall repair any damage to the Premises or Shopping Center caused by the removal of Tenant's Property and all utility lines shall be professionally capped or plugged and Tenant shall leave the Premises in broom clean condition. If Tenant shall fail to remove any of Tenant's Property,such Property shall become the property of Landlord and Landlord shall have the right to dispose of such Property as it deems appropriate,and Tenant shall reimburse Landlord for any costs thereby incurred on demand. This requirement shall survive the Term of this Lease to the extent necessary to give effect hereto. 63. Leasehold Improvements Remain. Notwithstanding anything to the contrary set forth in this Lease, all alterations, decorations, installations, additions or improvements upon or to the Premises attached or affixed to the real estate by either party, including, but not limited to, all paneling, millwork, decorations, partitions, air conditioning units, heating equipment, hot water heaters, light fixtures, railings, mezzanine floor,galleries,elevators,stairways,vault doors and the like (collectively, the "Leasehold Improvements"), shall immediately become the property of Landlord upon installation and shall remain upon, and be surrendered with the Premises, as a part thereof, at the termination of this Lease. The value or cost of the Leasehold Improvements constructed by Tenant shall in no way constitute a substitute for or a credit against any obligation of Tenant under this Lease to pay Rent. Notwithstanding the foregoing, Landlord may, at its option, require, by giving notice to Tenant within a reasonable time after the termination of the Lease by expiration of the Term, cancellation of the Lease, default or otherwise, that any or all of the Leasehold Improvements made by Tenant upon or to the Premises be removed by Tenant,in which case such Leasehold Improvements shall be removed, and the Premises and Building shall be restored,to the condition in which it was delivered by Landlord. Tenant shall repair any damage to the Premises or Shopping Center caused by the removal of such Leasehold Improvements. If Tenant shall fail to either(i)properly remove any of Tenant's Property as required under this Lease, and/or(ii)repair any damage caused by the removal of any alterations or property which Tenant is required or entitled to remove from the Premises pursuant to this Lease, and such failure shall continue for more than 5 days after Tenant's receipt of written notice of such failure, then and in either of such events, Landlord may(but shall not be obligated to) remove any such alterations or 25 y responsible for complying therewith). Tenant shall not do or permit anything to be done in or about the Premises, nor bring or keep anything therein which is not within the Permitted Use of 23 such primary business. Notwithstanding the foregoing, Landlord shall refrain from leasing to any future tenant or occupant 22 property and dispose of the same and/or repair such damage and restore the Premises to the condition required under this Lease, and Tenant shall reimburse Landlord for all costs and expenses incurred in connection with such disposal and/or repairs within 10 days after receipt of an invoice therefor from Landlord. In the event Tenant fails to pay Landlord all or any portion of the amount requested in such invoice within such 10-day period, Tenant shall be obligated to pay Landlord the Late Charge and Interest provided in Article 9 with respect to such overdue amount. ARTICLE 24 Eminent Domain 64. Definition/General. In the event of a taking of all or any part or of any interest in the Premises,the Building,the Shopping Center Buildings,the Common Areas or any other part of the Property by reason of any exercise of the power of eminent domain, or if there is a transfer thereof or of any interest therein, made in avoidance of an exercise of the power of eminent domain (all of the foregoing being hereinafter collectively referred to as a"Taking"),the following provisions shall apply. Landlord shall notify Tenant of any pending or threatened Taking and of all related proceedings including the settling of any award. 64.1 Total Taking. In the event of a Taking of all of the Premises, the Shopping Center, this Lease shall terminate as of the date of such Taking and all of Tenant's • obligations hereunder, including its obligation to pay Rent accruing from and after the date of the Taking shall terminate as of the date of such Taking. 64.2 Partial Taking. In the event of a Taking of: (i) more than 20% of the Premises; (ii) more than 40% of the Building or the Shopping Center buildings; (ill) more than 35% of the Common Areas (including the parking areas); or(iv) more than 2 of the accessways serving the Shopping Center without replacement thereof, then Tenant or Landlord may terminate this Lease by notice to the other within 60 days after possession is . taken by the condemning authority; PROVIDED, HOWEVER, in the event Tenant elects to terminate this Lease pursuant to clause (iii) above, Landlord shall have the right to nullify such election by giving Tenant notice of its election to promptly restore the Common Areas so taken or furnish substitute facilities which are functionally equivalent to or better than the Common Areas so taken and within a reasonable distance from those portions taken. 65. Restoration. In the event this Lease is not canceled as herein provided, then: 65.1 Landlord's Option. Landlord shall restore the affected portion and, if applicable,so much of the remainder of the Premises to a complete architectural unit to the extent that they existed on the date physical delivery thereof was initially delivered to Tenant prior to the Commencement Date(in any event subject to then existing Code); and(Ii)turn over to Tenant (for restoration purposes by Tenant) that portion of Landlord's award applicable to Tenant's Work initially installed by Tenant and additional Tenant improvements that was awarded to Landlord(rather than to Tenant)and not otherwise received by Tenant from the condemning authority or pursuant to the Section entitled "Award"below for such element of damage; PROVIDED, HOWEVER, Landlord may terminate this Lease, if no condemnation award proceeds are available or the condemnation award proceeds are insufficient to restore such affected portion or remainder of the Premises as provided above, by written notice to Tenant within sixty (60) days after the date the condemning authority notifies Landlord of the amount of the condemnation award proceeds(if any). Following the 26 s Property as required under this Lease, and/or(ii)repair any damage caused by the removal of any alterations or property which Tenant is required or entitled to remove from the Premises pursuant to this Lease, and such failure shall continue for more than 5 days after Tenant's receipt of written notice of such failure, then and in either of such events, Landlord may(but shall not be obligated to) remove any such alterations or 25 y responsible for complying therewith). Tenant shall not do or permit anything to be done in or about the Premises, nor bring or keep anything therein which is not within the Permitted Use of 23 such primary business. Notwithstanding the foregoing, Landlord shall refrain from leasing to any future tenant or occupant 22 physical delivery of the Premises to Tenant, Tenant shall commence and complete restoration of the Premises to at least the extent of Tenant's Work initially Installed by Tenant and additional Tenant improvements. During the period of restoration in the Premises only, the Rent shall be equitably abated in accordance with this Lease. 65.2 Rent Abatement. During the period of restoration in the case of either of the foregoing occurrences in this Section,the Rent shall be equitably abated in according to the nature and extent that Tenant's use and enjoyment of the Premises has been affected. 66. Award. All damages awarded for any taking under the power of eminent domain shall belong to and be the property of Landlord, Tenant hereby assigning to Landlord its interest, if any, in said award. Notwithstanding the foregoing, Tenant shall have the right to prove in any condemnation proceedings and to receive any separate award which may be made for damages to or condemnation of Tenant's movable trade fixtures and equipment and for moving expenses; PROVIDED, HOWEVER, Tenant shall in no event have any right to receive any award for its interest in this Lease or for loss of leasehold, and any such award shall not reduce amounts that would otherwise be available to Landlord. Notwithstanding the foregoing provisions of this Article, Landlord may terminate this Lease with no further liability to Tenant in the event that following any taking of any part of the Shopping Center by right of eminent domain, or any conveyance in lieu thereof, any party holding a mortgage, trust deed or similar lien on Landlord's interest in the Shopping Center elects to require the application of an award or payment for the taking or conveyance in lieu thereof to reduce the indebtedness secured by such mortgage, trust deed or similar lien. ARTICLE 25 Default • 67. Default Definition. The occurrence of all or any of the following shall constitute an "Event of Default" by Tenant: 67.1 Non-payment of Rent or other sums. Any installment of Minimum Rent, Percentage Rent, Additional Rent or any other sum(s) required to be paid by Tenant hereunder, or any part thereof,shall at any time be in arrears and unpaid following the due date thereof as herein provided, or . 67.2 Non-performance. There is any default or breach on the part of Tenant in the observance or performance of any of the other covenants, agreements,or conditions of this Lease on the part of Tenant to be kept and performed or Tenant shall fail to promptly remedy,after notice, any failure to comply with the ECR,any exclusives therein,any future exclusives as to which Landlord has provided notice to Tenant, all Exclusives, all encumbrances of record affecting the Premises, all laws, ordinances and lawful orders, regulations and any rules and regulations of the Shopping Center, as may be amended or promulgated in the future, affecting the Premises and the cleanliness, safety, occupation and use of same, and said default or breach shall continue for a period of 25 days after notice thereof from Landlord to Tenant (unless such default cannot reasonably be cured within 25 days and in such case, Tenant shall have commenced to cure the default within the 25 days and thereafter diligently pursues the cure to completion, but in no event in excess of 60 days); PROVIDED, HOWEVER, Landlord shall have no obligation to provide Tenant more than 2 notices of default in any Lease Year pursuant to this Subsection, and 27 r the date the condemning authority notifies Landlord of the amount of the condemnation award proceeds(if any). Following the 26 s Property as required under this Lease, and/or(ii)repair any damage caused by the removal of any alterations or property which Tenant is required or entitled to remove from the Premises pursuant to this Lease, and such failure shall continue for more than 5 days after Tenant's receipt of written notice of such failure, then and in either of such events, Landlord may(but shall not be obligated to) remove any such alterations or 25 y responsible for complying therewith). Tenant shall not do or permit anything to be done in or about the Premises, nor bring or keep anything therein which is not within the Permitted Use of 23 such primary business. Notwithstanding the foregoing, Landlord shall refrain from leasing to any future tenant or occupant 22 t . Tenant shall be in default with respect to the second and each subsequent default hereunder if such default has not been cured within the above-referenced 25-day period,or 67.3 Bankruptcy. If: (i)Tenant or any Guarantor of Tenant's obligations under this Lease shall become insolvent, or shall make a transfer in fraud of creditors, or shall make an assignment for the benefit of creditors; (ii) Tenant or any Guarantor of Tenant's obligations under this Lease shall file a petition under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar law or statute of the United States or any State thereof, or an order for relief relating to Tenant or any Guarantor of Tenant's obligations under this Lease is granted in proceedings filed against Tenant or any guarantor of Tenant's obligations under this Lease; or (iii) a receiver or trustee shall be appointed for the Premises or for all or substantially all of the assets of Tenant or any guarantor of Tenant's obligations under this Lease. 68. Remedies. Upon an Event of Default of Tenant hereunder Landlord, at its option, may: 68.1 Terminate.Cancel and terminate this Lease or Tenant's right to possession, and/or 68.2 Demand of Payment. Demand and enforce its demand for the payment of Rent,Additional Rent,other charges as and when due under this Lease or cure of any non- monetary defaults in this Lease, and/or its demand for possession of the Premises, and/or 68.3 Take Possession. Re-enter,take possession of the Premises and remove all persons and property therefrom(such property as may be removed may be disposed of by Landlord at Tenant's expense) all without notice or legal process and without being deemed guilty of trespass, or liable for any loss of damage occasioned thereby, and/or 68.4 Expel/Remove Tenant. Enter upon and take possession of the Premises and expel or remove Tenant and any other occupant therefrom, with or without having terminated the Lease, and/or 68.5 Locks/Security Devices. Alter locks and other security devices at the Premises, and/or 68.6 Construction Allowance. Withhold payment of any unpaid portion of the Construction Allowance, if any, even if Tenant has already paid for all or a portion of the cost of the work, and/or 68.7 Injunctive Relief. Without limitation, exercise any other right at law or in equity, including specifically, but not by way of limitation, the pursuit of temporary or permanent injunctive relief. 69. Exercise of Landlord Remedies. Exercise by Landlord of any 1 or more remedies hereunder granted or otherwise available,including those with regard to the Security Deposit,if any, shall not be deemed to be an acceptance of surrender of the Premises by Tenant, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. Upon the occurrence of an Event of Default, Landlord shall not be obligated to give any notice (written or oral) regarding alteration of locks or other security devices at the Premises,or notice(written or oral)to vacate the Premises or notice of 28 25 days and in such case, Tenant shall have commenced to cure the default within the 25 days and thereafter diligently pursues the cure to completion, but in no event in excess of 60 days); PROVIDED, HOWEVER, Landlord shall have no obligation to provide Tenant more than 2 notices of default in any Lease Year pursuant to this Subsection, and 27 r the date the condemning authority notifies Landlord of the amount of the condemnation award proceeds(if any). Following the 26 s Property as required under this Lease, and/or(ii)repair any damage caused by the removal of any alterations or property which Tenant is required or entitled to remove from the Premises pursuant to this Lease, and such failure shall continue for more than 5 days after Tenant's receipt of written notice of such failure, then and in either of such events, Landlord may(but shall not be obligated to) remove any such alterations or 25 y responsible for complying therewith). Tenant shall not do or permit anything to be done in or about the Premises, nor bring or keep anything therein which is not within the Permitted Use of 23 such primary business. Notwithstanding the foregoing, Landlord shall refrain from leasing to any future tenant or occupant 22 liability for Landlord's attorneys'fees prior to Landlord's alteration of such locks or security devices or institution of proceedings in forcible detainer. In the event Landlord exercises its rights to alter the locks at the Premises, Landlord shall only be required to provide Tenant with a new key during Landlord's regular business hours, provided that in no event shall Landlord be required to provide Tenant a new key until such time as Tenant cures all defaults under the Lease and, if required by Landlord, Tenant increases the amount of the Security Deposit, if any, being held under the terms of this Lease by an amount equal to twice the monthly Minimum Rent and Additional Charges due hereunder. Tenant hereby waives (to the extent legally permissible)any and all notices otherwise required under common law, as same presently exist or may be hereafter amended (or any subsequent similar statute relating to notice prior to instituting such action or proceeding). If Tenant should fail to make any payment or cure any default hereunder within the time herein permitted, Landlord,without being under any obligation to do so and without thereby waiving such default,may make such payment and/or remedy such other default for the account of Tenant (and enter the Premises for such purpose), and thereupon,Tenant shall be obligated to,and hereby agrees to pay Landlord, upon demand, all costs,expenses and disbursements incurred by Landlord in taking such remedial action. Notwithstanding the foregoing, in the event of termination of this Lease or repossession of the Premises, Landlord shall use reasonable efforts to relet all or any part of the Premises for any period,to any tenant,and for any use and purpose. Landlord's reasonable efforts as used in the immediately preceding sentence shall be deemed to mean and be limited to (a) listing the Premises'availability for lease with a broker, (b)advertising the Premises'availability for lease in a trade publication, and (c) posting a "For Lease" sign at the Premises. 70. Additional Remedies. If Tenant shall after default voluntarily give up possession to Landlord, deliver to Landlord the keys to the Premises,or both,such actions shall be deemed to be in compliance with Landlord's rights and the acceptance thereof by Landlord shall not be deemed to constitute a surrender of the Premises. Should Landlord elect to re-enter, as herein provided, or should Landlord take possession pursuant to legal proceedings or pursuant to any notice provided for by law or by this Lease, Landlord may either cancel this Lease pursuant to the rights reserved elsewhere in this Lease, or Landlord may, from time to time, without canceling 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 Landlord in its sole discretion may deem advisable;upon each such reletting all rentals received by Landlord from such reletting shall be applied first, to the payment of any indebtedness other than Rent due hereunder from Tenant to Landlord,second,to the payment of any costs and expenses of such reletting, including brokerage fees and reasonable attorneys' fees, third, to the payment of Rent or Additional Rent due and unpaid hereunder, and the residue, if any, shall be held by Landlord and applied in payment of future Rent or damage as such amounts may become due and payable hereunder during the entire term of the Lease. 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 Landlord. No such re-entry or taking possession of said Premises by Landlord shall be construed as an election on its part to cancel this Lease unless a notice of such intention is given to Tenant or unless the cancellation thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 (without legal process) all or any portion of such furniture, fixtures, equipment and other property located thereon and place same in storage at any premises elected by Landlord,and in such event, Tenant shall be liable to Landlord for costs incurred by Landlord in connection with such removal and storage,together with interest thereon at the Interest Rate. Landlord shall also have the right to relinquish possession of all or any portion of such furniture,fixtures,equipment and other property to any person ("Claimant") claiming to be entitled to possession thereof, without the necessity of making any investigation or inquiry as to the basis upon which Claimant purports to act. Tenant stipulates and agrees that the rights set forth in this subsection are commercially reasonable. ARTICLE 26 Subordination; Estoppels 71. Subordination. This Lease is subject and subordinate to the lien of any existing mortgage and Landlord reserves the right to subject and subordinate this Lease to the mortgage, deed of trust, ground or master lease, sale-leaseback transaction or other security instrument (individually or collectively called an "Encumbrance") placed on the Premises and each renewal, modification, extension and restatement thereof, except the upon the request of any Tenant, Landlord shall exercise reasonable efforts to obtain from the holder of the Encumbrance a non- disturbance and attornment agreement in recordable form which provides that in the event of any foreclosure,sale under a power of sale,ground or master lease termination or transfer in lieu of any of the foregoing or the exercise of any other remedy pursuant to such Encumbrance,Tenant's use, possession and enjoyment of the Premises shall not be disturbed and this Lease shall continue in full force and effect so long as Tenant is not in default hereunder. Tenant shall, upon request, attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as Landlord under this Lease. Tenant, upon Landlord's request, shall execute, acknowledge and deliver such instruments as are required to affect the intent of this Section. 72. Estoppel. Within 20 days after the request of the other party at any time and from time to time, each of Landlord and Tenant agree to execute, acknowledge and deliver to the other party a written instrument in form reasonably acceptable to Landlord and Tenant,duly executed and acknowledged: (a) certifying that this Lease has not been modified except as set forth in such certificate and is in full force and effect as modified; (b)specifying the dates to which the minimum Rent, Percentage Rent,Additional Rent and other charges hereunder have been paid; (c)stating whether or not,to the knowledge of the party executed such instrument,the other party is in default and, if so,stating the nature of such default;(d)stating the Commencement Date;(e)stating which options to extend the Term have been exercised, if any, and how many unexercised extension options remain; (f) affirming such other factually accurate matters pertaining to the provisions or subject matter of this Lease as may be required by the other party. ARTICLE 27 Notices 73. Notices. Whenever under this Lease a provision is made for notice of any kind,or for approval or consent or any other communication between the parties, such notice or other communication shall, to be effective, be in writing and addressed to the appropriate party at the address hereafter set forth (or to such other address as either party may from time to time 30 of the Lease. 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 Landlord. No such re-entry or taking possession of said Premises by Landlord shall be construed as an election on its part to cancel this Lease unless a notice of such intention is given to Tenant or unless the cancellation thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 designate in the manner herein required) and sent by registered or certified United States mail,or by a nationally recognized overnight mail service, such as UPS or Federal Express, in either case with postage prepaid and return receipt requested. Any such notice or other communication shall be deemed to have been received as of the date of acceptance, rejection, or inability to deliver as indicated on the receipt. Any notice from counsel for either party shall be deemed an official notice from such party. Each party may designate a new address for notice by sending a written notice to the other party of its new address at least 10 days prior to the effective date: If to Tenant: Brixco, Inc. 5222 No. 193rd Street Elkhorn, Nebraska 68022 Attn: Dan Matuszek with a copy to: Woods &Aitken LLP 301 South 13th Street, Suite 500 Lincoln, Nebraska 68508 Attn: Jennifer J. Strand If to Landlord: 168th and Dodge, L.P. do RED Development Attn: Director of Development, Legal 6263 N. Scottsdale, Suite 330 Scottsdale, AZ 85250 with a copy to: 168th and Dodge, L.P. c/o RED Development Attn: General Counsel 4717 Central Kansas City, MO 64112 And a copy to: Daspin &Aument 227 W. Monroe Street Suite 3500 Chicago, Illinois 60606 Attn: Nicole Rudman Brown ARTICLE 28 Surrender of Premises 74. Surrender of Premises. Tenant shall surrender the Premises in broom clean condition and in good order, condition and repair, reasonable wear and tear excepted, and shall surrender all keys for the Premises to Landlord at the place then fixed for the payment of Rent and shall inform Landlord of all combinations on locks, safes and vaults, if any, in the Premises. Tenant's obligation to observe or perform this covenant shall survive the expiration or other termination of this Lease. ARTICLE 29 31 t, upon Landlord's request, shall execute, acknowledge and deliver such instruments as are required to affect the intent of this Section. 72. Estoppel. Within 20 days after the request of the other party at any time and from time to time, each of Landlord and Tenant agree to execute, acknowledge and deliver to the other party a written instrument in form reasonably acceptable to Landlord and Tenant,duly executed and acknowledged: (a) certifying that this Lease has not been modified except as set forth in such certificate and is in full force and effect as modified; (b)specifying the dates to which the minimum Rent, Percentage Rent,Additional Rent and other charges hereunder have been paid; (c)stating whether or not,to the knowledge of the party executed such instrument,the other party is in default and, if so,stating the nature of such default;(d)stating the Commencement Date;(e)stating which options to extend the Term have been exercised, if any, and how many unexercised extension options remain; (f) affirming such other factually accurate matters pertaining to the provisions or subject matter of this Lease as may be required by the other party. ARTICLE 27 Notices 73. Notices. Whenever under this Lease a provision is made for notice of any kind,or for approval or consent or any other communication between the parties, such notice or other communication shall, to be effective, be in writing and addressed to the appropriate party at the address hereafter set forth (or to such other address as either party may from time to time 30 of the Lease. 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 Landlord. No such re-entry or taking possession of said Premises by Landlord shall be construed as an election on its part to cancel this Lease unless a notice of such intention is given to Tenant or unless the cancellation thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 Holding Over 75. Holding Over. If Tenant remains in possession of the Premises after the expiration of the Term of this Lease, without the execution of a new Lease,then, at Landlord's option,Tenant shall be deemed to be occupying the Premises as a month-to-month holdover Tenant,subject to all the provisions of this Lease insofar as they are applicable to a month-to-month tenancy, but at a daily rental of 1.5 times the per day Rent provided under this Lease, computed on the basis of a 30 day month, plus a likely daily amount of Percentage Rent. ARTICLE 30 Casualty 76. Removal of Debris. In the event of a casualty,Tenant shall be responsible for the prompt removal of all debris resulting from Tenant improvements installed in the Premises by Tenant, including Tenant's furniture and fixtures. 77. Termination. If at any time during the Term, more than fifty percent (50%) of the value of the Premises (excluding the Leasehold Improvements)or the Shopping Center should be destroyed or damaged by fire or other casualty, Landlord shall have the election to repair and reconstruct the damaged portion of the Premises and/or the Shopping Center to substantially the condition which existed at the time of Landlord's tender of possession of the Premises to Tenant or alternatively,to terminate this Lease. Landlord will notify Tenant of its election within 60 days after such damage or destruction. 78. Repair. If Landlord elects to repair and restore the Premises: (I) this Lease shall continue in full force and effect;(ii)such repairs will be made by Landlord within a reasonable time; (iii) Minimum Rent shall abate proportionately only during the period and to the extent that the Premises are unfit for use, and are not otherwise used, by Tenant for any purpose; and (iv) for purposes of computing the Percentage Rent, if any, due hereunder during any such period, the computation shall be based upon the proportionately abated Minimum Rent provided for in the preceding sentence. Notwithstanding the foregoing,if the damage is due to the gross negligence or willful misconduct of Tenant or its employees, there shall be no abatement of Rent. If Landlord elects to repair and restore the Premises, Tenant hereby covenants and agrees to restore the interior of the Premises,pursuant to Landlord's standard construction procedures,and reopen fully stocked and staffed in the Premises promptly thereafter. Anything in this Lease to the contrary notwithstanding, if, based upon Landlord's estimate, such casualty repairs cannot reasonably be made within one hundred eighty (180) days of the date of such damage or destruction, Landlord shall notify Tenant of the same in writing and Tenant may terminate this Lease upon written notice to Landlord delivered within thirty(30) days of the date of such written notice from Landlord. 79. Notice. Tenant shall give notice to Landlord within 2 days after Tenant learns of any accident, damage or destruction at the Premises. In the event of a termination of this Lease pursuant to this Article, Rent shall be apportioned on a per diem basis and be paid to the date of termination. ARTICLE 31 • 32 a provision is made for notice of any kind,or for approval or consent or any other communication between the parties, such notice or other communication shall, to be effective, be in writing and addressed to the appropriate party at the address hereafter set forth (or to such other address as either party may from time to time 30 of the Lease. 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 Landlord. No such re-entry or taking possession of said Premises by Landlord shall be construed as an election on its part to cancel this Lease unless a notice of such intention is given to Tenant or unless the cancellation thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 • Waiver 80. Waiver. One or more waivers of any covenant or condition of this Lease by Landlord shall not be construed as a waiver of a further breach of the same covenant or condition, and the consent or approval by Landlord to or of any act by Tenant requiring Landlord's consent or approval shall not be deemed to waive or render unnecessary Landlord's consent or approval to any subsequent similar act by Tenant. No receipt of money by Landlord after a Tenant default has been declared shall,without the consent of Landlord, in any way reinstate,continue or extend the Term of this Lease. Receipt by Landlord of Tenant's keys to the Premises shall not constitute an acceptance of surrender of the Premises without Landlord's acknowledgment thereof. ARTICLE 32 Announcements 81. Announcements. The parties agree that the terms and conditions regarding this Lease are confidential and neither party shall disclose any terms or conditions of this Lease,except to their agents,employees,prospective assigns,contractors,professional advisors,lenders,buyers and brokers, without the prior approval of the other party, unless compelled to do so by judicial order. The parties agree to cooperate in issuing a press release or other public statement with respect to this Lease. Any press release or other public statement may only be issued with the prior consent of the other party, which consent shall not be unreasonably withheld. ARTICLE 33 Quiet Possession 82. Quiet Possession. Landlord agrees that,so long as Tenant fully complies with all of the terms, covenants and conditions herein contained on Tenant's part to be kept and performed, Tenant shall peaceably and quietly have, hold and enjoy the Premises free from molestation by Landlord or any party claiming by, through or under Landlord. ARTICLE 34 Broker's Commission 83. Broker's Commission. Each party hereto warrants to the other that no agent,finder or broker other than The Lund Company, Inc. and RED Realty Advisors, LLC (hereinafter collectively, referred to as "Broker"), whose fees and commissions, if any, are to be paid by Landlord, have been involved with the introduction of Tenant and Landlord and/or the lease of the Premises. In the event of a breach of the foregoing warranty, the breaching party agrees to indemnify,defend and hold harmless the other party from and against any claims,losses,damages, liabilities and expenses, including, but not limited to, reasonable attorneys'fees. The parties are aware and acknowledge that Daniel H. Lowe and Michael N. Helmuth, members of Landlord, are real estate brokers or agents licensed in the State of Missouri, Scott Rehom, Fred Collings and Mike Ebert, members of Landlord,are real estate brokers or agents licensed in the State of Arizona. 33 from Landlord. 79. Notice. Tenant shall give notice to Landlord within 2 days after Tenant learns of any accident, damage or destruction at the Premises. In the event of a termination of this Lease pursuant to this Article, Rent shall be apportioned on a per diem basis and be paid to the date of termination. ARTICLE 31 • 32 a provision is made for notice of any kind,or for approval or consent or any other communication between the parties, such notice or other communication shall, to be effective, be in writing and addressed to the appropriate party at the address hereafter set forth (or to such other address as either party may from time to time 30 of the Lease. 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 Landlord. No such re-entry or taking possession of said Premises by Landlord shall be construed as an election on its part to cancel this Lease unless a notice of such intention is given to Tenant or unless the cancellation thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 The parties hereto acknowledge that this disclosure notice, either verbally or in writing, was previously given to Tenant. ARTICLE 35 Asbestos and Other Hazardous Materials 84. Definition. For purposes of this Article, "Hazardous Materials"means any matter giving rise to liability under the Resource Conservation and Recovery Act,42 U.S.C. Section 6901 et seq., the Comprehensive Environmental Response, Compensation and Liability Act, U.S.C. Section 9601 et seq. (including the so-called "Superfund" amendments thereto), any other applicable federal,state or local statute, law,ordinance,rule or regulation governing or pertaining to anyhazardous materials, hazardous wastes, chemicals or other materials, including, without g, limitation,asbestos, polychlorinated biphenyls, radon, petroleum and any derivative thereof or any common law theory based on nuisance or strict liability. Notwithstanding any provision of this Lease to the contrary, Tenant shall have no obligation to make any repairs, alterations or improvements to the exterior of Premises or incur any costs or expenses as a result of the existence of Hazardous Materials as to the exterior of the Premises or any pre-existing Hazardous Materials as of the date of execution of this Lease. Landlord shall be solely responsible for any changes to the exterior of the Premises relating to Hazardous Materials or as required by any present or future laws,ordinances and regulations of any governmental authority,insurance carrier or any similar body; PROVIDED, HOWEVER, that the Hazardous Materials were not installed by Tenant or its contractors. 85. Exposure. Tenant, its employees, contractors or agents, shall not use, generate, release, manufacture, refine, produce, process, store, or dispose of any Hazardous Materials on, under, or about the Premises, or the transportation to or from the Premises of any Hazardous Materials. Tenant shall not cause, suffer or permit any Hazardous Material to be brought upon, kept,used,generated, manufactured,stored,disposed of,handled, released or emitted in or about the Premises or Shopping Center by Tenant, its agents, employees or contractors, except that construction materials (other than asbestos or polychlorinated biphenyls), office equipment, cleaning solutions and other maintenance materials that are or contain Hazardous Materials may be used, handled or stored on the Premises, provided such is in de minimis amounts only and is incidental to and reasonably necessary for the operation and maintenance of the Premises for the permitted use hereunder and is at all times in compliance with all environmental statutes and all other applicable governmental requirements. 86. Tenant Requirements. Tenant shall,at Tenant's own expense,comply with all laws regulating the use,generation,storage,transportation,or disposal of Hazardous Materials("Laws"). Tenant shall, at Tenant's own expense, make all submissions to, provide all information required by,and comply with all requirements of all governmental authorities(collectively,"Authority")under the Laws with respect to Hazardous Materials introduced or installed in the Premises by Tenant or Tenant's employees,agents or contractors. Should any Authority or any third party demand that a clean-up plan be prepared and that a clean-up be undertaken because of any deposit, spill, discharge, or other release by Tenant of Hazardous Materials that occurs during the Term of this Lease, at or from the Premises, or which arises at any time from Tenant's use or occupancy of the Premises,then Tenant shall,at Tenant's own expense,prepare and submit the required plans;and Tenant shall carry out all such clean-up plans. Tenant shall promptly provide all information regarding the use, generation, storage, transportation, or disposal of Hazardous Materials that is requested by Landlord. If Tenant fails to fulfill or begin to fulfill any duty imposed under this Section 34 ess the cancellation thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 within 30 days after notice from Landlord, Landlord may, in its sole discretion, abate such Hazardous Materials from the Premises; and in such case,Tenant shall cooperate with Landlord in order to prepare all documents Landlord deems necessary or appropriate to determine the applicability of the Laws to the Premises and Tenant's use thereof, and for compliance therewith, and Tenant shall execute all documents promptly upon Landlord's request. Tenant shall pay Landlord all reasonable expenses incurred by Landlord in fulfilling Tenant's obligations set forth in this Section within 10 days after receipt of an invoice therefor. Additionally, in any such event covered by this Section,the parties agree Tenant shall be responsible for any and all Rent due and that no abatement of Rent shall apply. 87. Tenant Indemnification. Tenant shall indemnify, defend and hold Landlord harmless from and against all liabilities, costs, damages and expenses which Landlord may incur (including, without limitation, reasonable attorneys' fees and disbursements) as a result of the presence of Hazardous Materials introduced or installed in the Premises by Tenant or Tenant's officers, employees, agents, contractors, or other invitees. ARTICLE 36 Security Deposit; Conflicts; Access; Relationship; Headings & Miscellaneous 88. Security Deposit. Within 5 days of the License Contingency Date, Tenant shall deposit with Landlord the sum specified in ITEM 10 of the Cover Sheet(the "Security Deposit"). The Security Deposit shall be held by Landlord without liability for interest as security for the faithful performance by Tenant of all of its obligations under this Lease. The Security Deposit shall not be mortgaged, assigned, transferred or encumbered by Tenant without the prior written consent of Landlord and any such act on the part of Tenant shall be without force and effect and shall not be binding upon Landlord. If any of the Rent or any other sum payable by Tenant to Landlord hereunder shall be overdue and unpaid or paid by Landlord on behalf of Tenant, or if Tenant shall fail to perform any of its obligations under this Lease,then Landlord may, at its option and without prejudice to any other remedy which Landlord may have on account thereof,appropriate and apply said entire Security Deposit, or so much thereof as may be necessary to compensate Landlord for Minimum Rent,Percentage Rent,Additional Rent,loss or damage sustained by Landlord as a result thereof, and Tenant shall forthwith upon demand restore the Security Deposit to the original sum deposited. Should Tenant comply with all of said obligations and promptly pay all the rentals when due and all other sums payable by Tenant to Landlord, said Security Deposit shall be refunded in full to Tenant at the expiration or earlier termination of this Lease. In the event of bankruptcy or other debtor-creditor proceedings against Tenant, as specified in Article 22,the Security Deposit shall be deemed to be applied first to the payment of rental and other charges due Landlord for the earliest periods prior to the filing of such proceedings. Landlord may delivery the Security Deposit to the purchaser or assignee of Landlord's interest in the Premises in the event that such interest is transferred and thereupon Landlord shall be discharged from any further liability with respect to the Security Deposit. This Section shall also apply to any subsequent transfer of Landlord's interest in the Premises. 89. Governing Item. Notwithstanding anything contained in the Lease to the contrary,in the event of a conflict between Tenant's Approved Construction Documents,as set forth in Exhibit B_II,and the terms and conditions of this Lease, including,but not limited to, Exhibits B-I and BB-II, Tenant's Approved Construction Documents,as approved by Landlord in accordance with Exhibit B_II, shall govern. 35 duty imposed under this Section 34 ess the cancellation thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 90. Landlord Access to Rent. Landlord may, at any time during the last 6 months of the Term, upon reasonable notice to Tenant, enter the Premises at all reasonable hours for the purpose of offering them for rent and may place and keep on the windows and doors of the Premises signs advertising the Premises for rent. 91. Relationship. Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating a relationship between the parties hereto other than the relationship of landlord and tenant. 92. Submission. The submission of this Lease for examination does not constitute a reservation or any option for the Premises and this Lease becomes effective only upon its execution and delivery by both parties hereto. 93. Headings. The article headings used throughout this Lease are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Lease. 94. Shopping Center Rules and Regulations. In addition to the restrictions contained in this Lease and the ECR, Landlord may from time to time, promulgate reasonable and non- discriminatory rules and regulations which further govern the operation of Tenant's business in the Premises and in and about the Shopping Center. Tenant agrees to abide by and comply with all such reasonable and non-discriminatory rules and regulations. A copy of the Shopping Center Rules and Regulations currently in effect for the Shopping Center is attached hereto as Exhibit C-I and incorporated herein by this reference. 95. independent Covenants. The doctrine of independent covenants will apply in all matters relating to this Lease including,without limitation, all obligations of Landlord and Tenant to perform their respective obligations under this Lease. All obligations of Tenant which by their nature involve performance after the end of the Term,or which cannot be ascertained to have been performed until after the end of the Term of this Lease, shall survive the expiration or earlier termination of this Lease. 96. Holiday Lights. Tenant agrees to allow Landlord's representative to install and maintain holiday lights on the Premises during the holiday season, as long as such lights shall not interfere with Tenant's signs or obstruct Tenant's entrance. During the holiday season, holiday lights shall be placed upon the outline of the roofline of the buildings located at the Shopping Center. 97. Financial Statements. Upon Landlord's request,Tenant agrees to provide Landlord with true and correct financial statements of Tenant and any Guarantors of the Lease within 20 days after Landlord's request of such financial statements. As long as Tenant is a publicly traded company, copies of its annual report and proxy statement delivered to its stockholders shall be deemed to be Tenant's financial statements for purposes of this Section. 98. Time of Essence&Binding Nature. Time is of the essence of all of the terms and provisions of this Lease, and the terms and conditions hereof shall extend to and be binding upon the heirs,executors,successors and assigns of the parties hereto and mention of the singular shall include the plural and the plural shall include the singular. 99. Memorandum of Lease. At the request of either party,the parties shall execute and deliver a recordable memorandum of lease in a form reasonably acceptable to Landlord and 36 ase to the contrary,in the event of a conflict between Tenant's Approved Construction Documents,as set forth in Exhibit B_II,and the terms and conditions of this Lease, including,but not limited to, Exhibits B-I and BB-II, Tenant's Approved Construction Documents,as approved by Landlord in accordance with Exhibit B_II, shall govern. 35 duty imposed under this Section 34 ess the cancellation thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 Tenant. The requesting party shall be responsible for all recording costs. Neither party shall record any memorandum of this Lease, except in accordance with the foregoing provisions. 100. Trial Waiver. THE PARTIES HERETO IRREVOCABLY WAIVE TRIAL BY JURY IN ANY ACTION,PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON • ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE,THE RELATIONSHIP OF LANDLORD AND TENANT, OR TENANT'S USE AND OCCUPANCY OF THE PREMISES. 101. Governing Law. This Lease shall be subject to the laws of the State where the Premises are located. 102. Force Majeure. In the event either party hereto shall be delayed or hindered in or prevented from the performance of any act required under this Lease by reason of strikes,lockouts, labor troubles, acts of God, inclement weather, including periods of rain, inability to procure materials,failure of power, restrictive governmental law or regulations,the inability to attain permits (for reasons other than failure to timely apply), riots, insurrections, war 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 ("Force Majeure"), then performance of such act shall be excused for the period of the delay, and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. No delay under this Section shall be effective unless Landlord or Tenant shall have notified the other of the delay within 10 days after cessation of the event giving rise to such delay setting forth the nature of such Force Majeure and the duration of such delay. The provisions of this Section shall not: (a) operate to excuse Tenant from prompt payment of Minimum Rent, Percentage Rent or any other payment required by the terms of this Lease;and(b)be applicable to delays resulting from the inability of a party to obtain financing or to proceed with its obligations under this Lease because of a lack of funds. 103. Guaranty. This Lease is guaranteed by the parties(if any)set forth in ITEM 9 of the Cover Sheet, and such Guarantor(s) shall execute a Guaranty in the form attached hereto as Exhibit G. 104. Tenant Liability; Authority. If this Lease is executed by more than 1 person or entity as"Tenant", each such person or entity shall be jointly and severally liable hereunder. It is expressly understood that any 1 of the parties who have executed this Lease as"Tenant" (herein individually referred to as "Signatory") shall be empowered to execute any modification, amendment, exhibit, floor plan, or other document ("Future Instrument") and bind each such Signatory who has executed this Lease regardless of whether each Signatory, in fact, executes such Future Instrument. If Tenant is a corporation or partnership, each individual executing this Lease on behalf of such entity represents and warrants that he/she is duly authorized to execute and deliver this Lease on behalf of said entity, in accordance with the organizational documents of said entity, and that this Lease is binding upon said entity. • 105. Legal Representation of the Parties. This Lease was negotiated by the Parties hereto with the benefit of legal representation and any rules of construction or interpretation 37 er party,the parties shall execute and deliver a recordable memorandum of lease in a form reasonably acceptable to Landlord and 36 ase to the contrary,in the event of a conflict between Tenant's Approved Construction Documents,as set forth in Exhibit B_II,and the terms and conditions of this Lease, including,but not limited to, Exhibits B-I and BB-II, Tenant's Approved Construction Documents,as approved by Landlord in accordance with Exhibit B_II, shall govern. 35 duty imposed under this Section 34 ess the cancellation thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 otherwise requiring this Lease to be construed or interpreted against any party shall not apply to any construction or interpretation hereof or thereof. 106. Agreement; Amendment. This Lease(including all Riders, Exhibits,Addenda and Guaranty, if any) is the complete agreement between Landlord and Tenant concerning the Premises and the Shopping Center. There are no oral agreements, understandings, promises or representations between Landlord and Tenant affecting this Lease. All prior negotiations and understandings, if any, between the parties hereto with respect to the Premises and the Shopping Center, shall be of no force or effect and shall not be used to interpret this Lease. This Lease shall not be amended, changed or extended except by written instrument signed by both parties hereto. This Lease shall be considered to have been executed by a person if there exists a photocopy, facsimile copy, or a photocopy of a facsimile copy of an original hereof or of a counterpart hereof which has been signed by such person. Any photocopy, facsimile copy, or photocopy of facsimile copy of this Lease or a counterpart hereof shall be admissible into evidence in any proceeding as though it were an original. 107. Subsequent Commencement. This Lease shall be effective as of the day and year first above written notwithstanding that the Term will commence at a date subsequent thereto and Landlord and Tenant intend that each shall have vested rights immediately upon the full execution signing of this Lease and that this Lease shall be fully binding and in full force and effect from and after execution hereof by the last to sign of Landlord and Tenant. 108. Liquor License Contingency. Within five(5)business days of the execution of this Lease by both parties,Tenant shall apply to the City of Omaha and/or State of Nebraska for a class C liquor license("License")and shall use diligent efforts to secure the License.Tenant shall comply in all respects with all applicable'codes, ordinances, statutes, rules and regulations and any other laws affecting the submission of any required documentation necessary to obtain the License and shall provide Landlord with copies of its application and evidence of compliance with all such applicable laws. If Tenant has complied with the foregoing and does not obtain the License within 70 days of the execution of this Lease by both parties("License Contingency Date"),then Tenant shall have the right to terminate this Lease by written notice given to Landlord on or before the License Contingency Date effective as of the License Contingency Date. Landlord agrees to reasonably cooperate with Tenant in obtaining the License, provided Tenant reimburses Landlord for any out-of-pocket costs incurred in connection with such cooperation. Failure of Tenant to give written notice to Landlord on or before the License Contingency Date shall constitute a waiver of the termination right provided herein. Tenant agrees that,within five(5)days following issuance of the License,Tenant shall provide Landlord with copies of the License and written notice of the date on which the License was issued. 109. Incorporation of Exhibits. All Exhibits identified in this Lease, including, but not limited to the following listed Exhibits, shall be and are hereby incorporated into this Lease by this reference: EXHIBIT A SITE PLAN • EXHIBIT B-I WORK AGREEMENT EXHIBIT B-II CONSTRUCTION GUIDELINES EXHIBIT C-I SHOPPING CENTER RULES AND REGULATIONS EXHIBIT C-II GIFT CERTIFICATE/GIFT CARD PROGRAM EXHIBIT D FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT EXHIBIT E EXCLUSIVES 38 ut not limited to, Exhibits B-I and BB-II, Tenant's Approved Construction Documents,as approved by Landlord in accordance with Exhibit B_II, shall govern. 35 duty imposed under this Section 34 ess the cancellation thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 EXHIBIT F FORM OF COMMENCEMENT DATE MEMORANDUM EXHIBIT G FORM OF LEASE GUARANTY EXHIBIT H PROHIBITED USES [SIGNATURE PAGE FOLLOWS] 39 EM 16. CITY: The City of Omaha. ITEM 17. STATE: The State of Nebraska. D STURBANCE AND ATTORNMENT AGREEMENT EXHIBIT E EXCLUSIVES EXHIBIT F FORM OF COMMENCEMENT DATE MEMORANDUM EXHIBIT G FORM OF LEASE GUARANTY EXHIBIT H PROHIBITED USES iii Y) MATUSZEK, 5222 NORTH 193RD STREET, 68022 (H) 333- 3244 *SHRHLDRS -ROBERT CARLISLE; MICHAEL CASSLING; BES INVESTMENTS, LLC/BRADLEY (CHRISTINE) GOSCH; DAVID (LYNNE) POTTER; DARYL (PATRICIA) WITTSTRUCK; ANN EDMUNDS; JOHN (JANE) SHOOK; NIEL(CAROL) EDMUNDS; WILLIAM (KATHLEEN) GERBER & UNIVERSAL REAL ESTATE, LLC/KENNETH (BRIDGET) GORDMAN *CORP PHONE & FAX#'S -880-8857-FAX-445-4334 *ATTY-MIKE KELLEY-397-1898 IN WITNESS WHEREOF, the undersigned parties have executed this Lease the day and year first above written. TENANT: BRIXCO, INC. an Nebraska corporation By: Name: Ai-,i e l Al, i`t .r Z.: C Title: PiZ ; Date Executed: 6�/ (G`; LANDLORD: 168TH AND DODGE, L.P., a Nebraska limited partnership By:, RED Village Pointe, LLC, a Missouri limited liability company, Manager By: E&R Holdings, LLC, an Arizona limited liability com•a Manag g Member By: of Li-- is ael L. Ebert, Manager • 40 LLIAM (KATHLEEN) GERBER & UNIVERSAL REAL ESTATE, LLC/KENNETH (BRIDGET) GORDMAN *CORP PHONE & FAX#'S -880-8857-FAX-445-4334 *ATTY-MIKE KELLEY-397-1898 EXHIBIT A SITE PLAN Tenant hereby acknowledges that the attached Site Plan is intended to show the approximate layout of the Shopping Center and location of the Premises,and Landlord has the right at any time to expand, reduce, remove, demolish, renovate or construct any existing or new improvements in the Shopping Center, including, without limitation, the right to change the shape, size, configuration, number, design or extent of such improvements, provided the approximate location, size and configuration of the Premises shall not be materially changed. • • A-9 By: of Li-- is ael L. Ebert, Manager • 40 LLIAM (KATHLEEN) GERBER & UNIVERSAL REAL ESTATE, LLC/KENNETH (BRIDGET) GORDMAN *CORP PHONE & FAX#'S -880-8857-FAX-445-4334 *ATTY-MIKE KELLEY-397-1898 1 J 111 gg .0 E Ili : ‘v .S'', .. . - 1. i :•.' = :-. • . • .'. 1 :rmitr_-. :. I) _ \ . .,. . ). ;,,,,,,,,i i �(j,��uiL'1��7�t'1III1I1�1�1�tn -t ...to •..'• 1 C'1iI1i�I1ll1TITjTJiffTifI•ITT•ITFJ UTtU �J1+f111+�7� •0 a xi a4{1 \\ OfHINHfNIHf{HIHf4{1 • �t� mNI 0 ( f� iiulii s . •I ti ? ® I/, GdffffNfffflf , • m71 I t . .. ;I; .... .' lilt 41 I . OHNfH6 .....1 16 • • • 11 1f/ ° d : :' f} . ..- i . am -- "..,: 1..,....., r.,„,,,,...: . ...,,,.,.. 1 , . " , "a., 1 • ft .. il • .','.T.,1 . . .�,. ,, il.., • a. !': '..v.:. I;! tee.l: ., ' 0.. fN0 _� Jfa U • 0 OffffffNNflp 4118 ,.1JIfHHfffNIHIO ..:.. •1 'a • / . ' • 'QHfff�f OfHIf111R9 : . . .•R 4, :/ ' ` ONNf ff jQ i. / r fi r U; 8. aS ...ONfff4�i TuI►I►1IiffU • Fs aof� . + ( tio ONHff0 ). ® •`! '`' ftnmm,o 11 n y . .. I 1 11. Offfflf{f}ffff0� !". - -:1 z '. 8 * ;:' I:-'I 1 : . IIBINN �J r Mx ' ( A-2 L of this Lease by both parties,Tenant shall apply to the City of Omaha and/or State of Nebraska for a class C liquor license("License")and shall use diligent efforts to secure the License.Tenant shall comply in all respects with all applicable'codes, ordinances, statutes, rules and regulations and any other laws affecting the submission of any required documentation necessary to obtain the License and shall provide Landlord with copies of its application and evidence of compliance with all such applicable laws. If Tenant has complied with the foregoing and does not obtain the License within 70 days of the execution of this Lease by both parties("License Contingency Date"),then Tenant shall have the right to terminate this Lease by written notice given to Landlord on or before the License Contingency Date effective as of the License Contingency Date. Landlord agrees to reasonably cooperate with Tenant in obtaining the License, provided Tenant reimburses Landlord for any out-of-pocket costs incurred in connection with such cooperation. Failure of Tenant to give written notice to Landlord on or before the License Contingency Date shall constitute a waiver of the termination right provided herein. Tenant agrees that,within five(5)days following issuance of the License,Tenant shall provide Landlord with copies of the License and written notice of the date on which the License was issued. 109. Incorporation of Exhibits. All Exhibits identified in this Lease, including, but not limited to the following listed Exhibits, shall be and are hereby incorporated into this Lease by this reference: EXHIBIT A SITE PLAN • EXHIBIT B-I WORK AGREEMENT EXHIBIT B-II CONSTRUCTION GUIDELINES EXHIBIT C-I SHOPPING CENTER RULES AND REGULATIONS EXHIBIT C-II GIFT CERTIFICATE/GIFT CARD PROGRAM EXHIBIT D FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT EXHIBIT E EXCLUSIVES 38 ut not limited to, Exhibits B-I and BB-II, Tenant's Approved Construction Documents,as approved by Landlord in accordance with Exhibit B_II, shall govern. 35 duty imposed under this Section 34 ess the cancellation thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 EXHIBIT B-I WORK AGREEMENT Landlord's Work shall be limited to the following: Landlord shall install a demising wall to demarcate the Premises from the adjacent premises. Installation of the demising wall shall include batt insulation and sheetrock-taped, sanded and ready for paint. Separate utilities (gas, electrical & HVAC) to exclusively serve the Premises. Restripe and complete necessary asphalt repairs to parking lot adjacent to the Premises, including repairs to the 8-10 parking spots in the parking lot adjacent to the Premises. Any work to be performed with respect to the Premises which is not set forth above as part of Landlord's Work, including,without limitation, any work required by any governmental authority, shall be performed by Tenant as a part of Tenant's Work, subject to and in accordance with the conditions set forth in the Lease and Exhibit B-II. B-I-1 EXHIBIT B-II CONSTRUCTION GUIDELINES THIS EXHIBIT B-II (the"Construction Guidelines") supplements the Lease to which it is attached and is incorporated therein as if set out in full. In the event of a conflict between the terms of this Exhibit B-II and the Lease, this Exhibit B-II shall control. Capitalized terms not defined in this Exhibit B-II shall have the meanings given to such terms in the Lease. 1. Landlord's Work.On or before the Delivery Date, Landlord shall,at its own cost and expense, perform only the work described as"Landlord's Work"in the Work Agreement attached as Exhibit B-I hereto. Landlord has made no representations or warranties regarding the condition of the Premises or the Shopping Center except as expressly set forth in this Lease. Provided that the License Contingency has been satisfied or waived, for a period of thirty (30)days prior to completion of Landlord's Work,Tenant shall have the right to enter the Premises for the sole and exclusive purpose of commencing the construction and installation of the Leasehold Improvements; provided, however, that (i) such entry shall not interfere with performance of Landlord's Work, (ii)any such entry shall be subject to such rules and regulations as Landlord may promulgate and Tenant shall fully cooperate with Landlord to facilitate performance of Landlord's Work, (iii) all the terms, covenants and conditions of this Lease, including, without limitation, Tenant's covenants in this Exhibit B-II,shall apply in full force and effect to such entry(other than Tenant's covenant to pay rental amounts hereunder), (iv) any such entry shall be at Tenant's risk and Landlord shall have no liability for any loss, damage or injury to Tenant's personal property, equipment,employees or agents which may be on or about the Premises during the period of such entry and Tenant hereby releases Landlord from any claim with respect thereto from whatever cause,and(v)to the extent any such entry delays completion of Landlord's Work,such delay shall constitute an event of Force Majeure and Tenant shall be responsible for Landlord's costs,including lost rent, resulting therefrom. 2. Tenant's Work. Tenant shall, at its own cost and expense, perform all work not described as Landlord's Work in the Work Agreement necessary to complete the Premises and to prepare them for the operation of Tenant's business therein ("Tenant's Work"). Landlord agrees that Tenant, as part of Tenant's Work and subject to and in accordance with the terms and conditions of this Exhibit B-II,shall have the right to(i)paint(and change the color of)the façade of the Premises, (ii)paint(and change the color of) the eaves located above the vestibule on the west side of the Premises, (iii) paint (and change the color of) the awnings on the west side of the Premises, (iv)install an access door on the east side of the Premises, (v)install additional windows on the north side of the Premises, (vi) remove the masonry clad grocer cart screen located at the northwest corner of the Premises, (vii) construct the Outdoor Patio Area subject to and in accordance with Section 2 of the Lease, consisting of an approximate 20 foot by 25 foot enclosed and gated area with a fire pit; and(viii)install an additional wood trellis system(consistent with the existing wood trellis above the vestibule) near the Outdoor Patio Area, all as shown on the approved Tenant's Drawings and all in accordance with applicable laws and the Handbook. Tenant agrees that all Leasehold Improvements to the Premises shall, upon installation, become the property of Landlord and shall remain upon the Premises upon the expiration or earlier termination of this Lease. Tenant shall not do anything upon or in connection with the Premises or the construction of any part thereof which interferes in any way with, or results in a work stoppage in connection with, construction of any part of the Shopping Center or any other tenant's space. B-II-1 is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 3. Tenant Handbook. Landlord has delivered to Tenant a copy of the Tenant Design Criteria Handbook and Tenant acknowledges receipt thereof and agrees to comply with all applicable provisions thereof, including the schedule for the submission and resubmission of plans unless another schedule is set forth in the body of this Lease. Notwithstanding the foregoing, the following shall control with respect to the timing of the submission and approval of plans and specifications for the construction of Tenant's Work in the Premises: 4. Plans and Specifications. 4.1 Preliminary Plans.Within 30 days after the date of this Lease,Tenant shall prepare and furnish to Landlord,at Tenant's sole cost and expense, in accordance with the requirements set forth under the heading "Preliminary Design Phase"in Section II of the Handbook, and in compliance with applicable laws, statutes, ordinances and codes, a complete set of store finish drawings ("Tenant's Drawings"). 4.2 Approval of Preliminary Plans. Landlord shall have 10 days after receipt to approve or disapprove Tenant's Drawings, specifying in detail any reasons for disapproval. If Tenant's Drawings are disapproved, Tenant shall incorporate Landlord's comments and resubmit Tenant's Drawings to Landlord within 5 business days. Landlord shall have 5 business days after receipt of the resubmitted Drawings to approve or disapprove them, and, in the event of disapproval, the procedures set forth herein shall be repeated until Landlord has approved Tenant's Drawings. 4.3 Construction Documents. Within 20 days after Landlord's approval of Tenant's Drawings,Tenant shall prepare and furnish to Landlord,at Tenant's sole cost and expense, in accordance with the requirements set forth under the heading "Construction Document Phase" in Section II of the Handbook, and in compliance with applicable laws, statutes, ordinances and codes, a complete set of construction plans and specifications ("Construction Documents"). 4.4 Approval of Construction Documents. Landlord shall have 10 days after receipt to approve or disapprove Tenant's Construction Documents,specifying in detail any reasons for disapproval. If Tenant's Construction Documents are disapproved,Tenant shall incorporate Landlord's comments and resubmit Tenant's Construction Documents to Landlord within 5 business days. Landlord shall have 5 business days after receipt of the resubmitted Construction Documents to approve or disapprove them, and, in the event of disapproval,the procedures set forth herein shall be repeated until Landlord has approved Tenant's Construction Documents. A complete set of Construction Documents shall be kept on the Premises at all times until Tenant opens for business therein. 5. Tenant's Contractor. All contractors engaged by Tenant shall be bondable, licensed contractors, having good labor relations, and capable of performing quality workmanship and working in harmony with Landlord's contractors and other contractors on the job. The term "contractors"as used in this Section shall be deemed to include subcontractors. 5.1 Insurance. On or before entry into the Premises, Tenant shall cause its contractor to obtain and to keep in force, with an insurance company authorized to do business in the state in which the Premises are located,until Tenant's Work is substantially completed, a policy of commercial general liability insurance, in the amount of at least -$2,000,000.00(combined single limit bodily injury and property damage)with respect to the B-II-2 the expiration or earlier termination of this Lease. Tenant shall not do anything upon or in connection with the Premises or the construction of any part thereof which interferes in any way with, or results in a work stoppage in connection with, construction of any part of the Shopping Center or any other tenant's space. B-II-1 is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 job site, such policy or policies to name Landlord and Landlord's lender as additional insureds, and Tenant shall furnish Landlord with certificates thereof. 5.2 Conditions to Commencement of Tenant's Work. On or before entry into the Premises, Tenant shall cause its contractor to: (i) review the plans and specifications (including all exhibits, addendums or riders thereto); (ii)review other related data including "technical data"; (iii) inspect the Premises; and (iv) obtain all governmental permits and approvals and pay any associated tax(including, but not limited to,excise tax)to complete Tenant's Work and forward copies to Landlord. 5.3 Construction of Tenant's Work. Tenant shall cause its contractor: (i) to construct Tenant's Work strictly in accordance with Landlord approved plans and specifications and changes thereto which are stamped approved by Landlord's architect,(ii) to advise Landlord immediately of any requested change from the plans and specifications, (iii)to keep a Landlord approved original set of plans and specifications at the job site at all times, and (iv) not to leave the job site until Landlord's and Tenant's punchlist items are complete, all damage is repaired and the site is free of debris and all unused materials are removed. Daily site clean up is required. 5.4 Contractor Deposit. Prior to commencement of construction, Tenant or Tenant's contractor shall deposit with Landlord the amount of$2,500.00 for the Premises as a damage/repair/clean-up deposit (the "Contractor Deposit"). Landlord may utilize the Contractor Deposit if Tenant's contractor does not repair damage to the property,damages the property, does not complete punchlist items or does not clean-up their construction site as required or otherwise fulfill the obligations of this Section. Should Landlord be required to complete any work to be completed by Tenant's contractor, including, but not limited to, cleanup,painting,punchlist items,etc.,Tenant will pay Landlord immediately for such work. Any items borrowed from Landlord shall be documented. 5.5 Damage to Equipment. Tenant agrees that Landlord shall not be liable and Tenant shall indemnify Landlord against any damage to Tenant's contractor or contractor's employee's property, or any equipment entrusted to Tenant's contractor by others, and for the loss of or damage to any of Tenant's contractor's property or equipment by theft or otherwise, unless caused by Landlord's gross negligence or willful misconduct. 5.6 Violations by Tenant's Contractors. In addition to application of the Contractor Deposit as provided above, and any and all remedies at law or equity, in the event Tenant's contractor violates the requirements of this Article, Landlord, upon 5 days notice, may order Tenant's contractors to remove themselves, their equipment and their employees from Landlord's property. Notwithstanding the foregoing, in the event Tenant's contractor violates the requirements of this Article on 2 occasions, as to the 3rd such occasion, Landlord shall not be required to give notice to Tenant and may order Tenant's contractors to remove themselves, their equipment and their employees from Landlord's property. 6. Allowance. In consideration of the performance by Tenant of Tenant's Work in the Premises and the timely fulfillment of all of the terms of this Lease, Landlord agrees to pay to Tenant the Construction Allowance,up to a maximum of$40.00 per square foot of FloorArea in the Premises, applicable to the hard costs for Tenant's permanent leasehold improvements for the Premises. The Construction Allowance shall be applicable only to Tenant's Work actually B-II-3 which interferes in any way with, or results in a work stoppage in connection with, construction of any part of the Shopping Center or any other tenant's space. B-II-1 is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 I � performed and completed to the Premises and shall be paid within 45 days after all of the following: 6.1 Opened. Tenant has opened for business in the Premises as required by this Lease; 6.2 Commencement Date Memorandum. Tenant has executed and delivered to Landlord a Commencement Date Memorandum in the form attached hereto as Exhibit F. 6.3 No Default. Tenant is not in default after notice and the lapse of any applicable cure period; 6.4 Work Completed.Tenant's Work is completed in accordance with Approved Construction Documents; 6.5 Debris. The Premises and the Common Areas surrounding the Premises are free of Tenant's debris,all contractor equipment and materials have been removed from the Premises, and any damage to the Shopping Center or the Common Areas caused by Tenant, its agents or contractors, has been repaired; 6.6 Liens, Judgments, Levies, or Tax Liens. The Premises, including all installations therein, are free and clear of all liens and there are no judgments, levies, attachments, liens or tax liens pending or in effect with respect to Tenant's Work in the Premises; and 6.7 Required Documentation. Tenant has submitted the following completed documentation to Landlord: 6.7.1 Lien Waivers. Full,final and unconditional lien waivers and releases in favor of Landlord, Landlord's lender, any proposed purchaser, or any other person/entity reasonably requested by Landlord, from Tenant's general contractor and from all Tenant's subcontractors having contracts in excess of$10,000.00; 6.7.2 Certificates. A copy of the permanent Certificate of Occupancy and any temporary Certificates of Occupancy; 6.7.3 Contractor's Final Billing. A copy of the final billing from Tenant's general contractor(broken down in reasonable detail and showing the cost of work performed at the Premises adequate to componentized for tax purposes under either generally accepted accounting principles or Internal Revenue guidelines;and 6.7.4 Architect Certificate. Landlord's has received Tenant's architect's certificate certifying that Tenant's Work is completed in accordance with the Approved Construction Documents, including all items on Landlord's representative's punch list. (Balance of this page intentionally left blank.) B-II-4 s of or damage to any of Tenant's contractor's property or equipment by theft or otherwise, unless caused by Landlord's gross negligence or willful misconduct. 5.6 Violations by Tenant's Contractors. In addition to application of the Contractor Deposit as provided above, and any and all remedies at law or equity, in the event Tenant's contractor violates the requirements of this Article, Landlord, upon 5 days notice, may order Tenant's contractors to remove themselves, their equipment and their employees from Landlord's property. Notwithstanding the foregoing, in the event Tenant's contractor violates the requirements of this Article on 2 occasions, as to the 3rd such occasion, Landlord shall not be required to give notice to Tenant and may order Tenant's contractors to remove themselves, their equipment and their employees from Landlord's property. 6. Allowance. In consideration of the performance by Tenant of Tenant's Work in the Premises and the timely fulfillment of all of the terms of this Lease, Landlord agrees to pay to Tenant the Construction Allowance,up to a maximum of$40.00 per square foot of FloorArea in the Premises, applicable to the hard costs for Tenant's permanent leasehold improvements for the Premises. The Construction Allowance shall be applicable only to Tenant's Work actually B-II-3 which interferes in any way with, or results in a work stoppage in connection with, construction of any part of the Shopping Center or any other tenant's space. B-II-1 is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 EXHIBIT C-I SHOPPING CENTER RULES AND REGULATIONS Landlord agrees to use its reasonable efforts to cause compliance by tenants of the Shopping Center with these Rules and Regulations, as they may be revised or amended by Landlord from time to time in its commercially reasonable discretion, but in no event shall Landlord be responsible for the violation or nonperformance of any of these Rules and Regulations by any other tenant. Unless otherwise provided,all terms used in these Rules and Regulations shall have the same meaning as set forth in this Lease. To the extent that the provisions of these Rules and Regulations are inconsistent with the provisions of this Lease, the provisions of the Lease shall control. 1. Business Hours. Unless otherwise specified in this Lease,Tenant agrees to remain open for the standard Shopping Center business hours as determined by Landlord from time to time. 2. Common Areas. Tenant shall not use the Common Areas,including areas adjacent to the Premises (except any outdoor seating area approved by Landlord pursuant to Paragraph 8 below),for any purpose other than ingress and egress, and in accordance with all other applicable provisions of this Lease, including these Rules and Regulations. Without limiting the generality of the foregoing, Tenant shall not use the Common Areas to canvass, solicit business or information from, or distribute any article or material to, other tenants, occupants or invitees of the Shopping Center,without the express written consent of Landlord. Tenant shall not allow anything to remain in or to obstruct any passageway, sidewalk, court, corridor, stairway, entrance, exit, elevator, shipping area, or other area outside the Premises (except as set forth in Paragraph 8 hereof). Janitorial closets,utility closets,telephone closets, broom closets,electrical closets,storage closets, and other such closets, rooms and areas shall be used only for the purposes and in the manner designated by Landlord, and may not be used by Tenant,or its contractors,agents,employees,or other parties without Landlord's prior written consent. 3. Deliveries. Deliveries of furniture,inventory and all other items shall be brought into the Shopping Center in compliance with all Legal Requirements and at Tenant's sole risk. Such deliveries shall be made only through the service entrances of Tenant's Premises and service entrances of the Shopping Center, when available. Landlord may inspect items brought into the Shopping Center or Premises with respect to weight or dangerous nature or compliance with this Lease or applicable laws. Tenant shall move all inventories, supplies, furniture, equipment and other items directly into the Premises immediately upon receipt. 4. Trash. All garbage, refuse, trash and other waste shall be kept in the kind of container, placed in the areas, and prepared for collection in the manner and at the times and places specified by Landlord, subject to the Section in the Lease concerning Hazardous Substances. Tenant shall not bum any trash or garbage of any kind in or about the Premises or Shopping Center. If Landlord designates a service to pick up such items, Tenant shall use the designated service at Tenant's cost, and Landlord may require Tenant to contract directly for such service with the designated service provider. Tenant acknowledges that there may be common and shared trash disposal containers. Landlord reserves the right to require that Tenant participate in any recycling program designated by Landlord. If Tenant is permitted under this Lease to handle foodstuffs, garbage and refuse shall be stored and daily removed from the Premises in leak proof, airtight containers. If any leakage occurs,Tenant shall promptly clean and remove any evidence of C-I-1 II-3 which interferes in any way with, or results in a work stoppage in connection with, construction of any part of the Shopping Center or any other tenant's space. B-II-1 is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 such leakage at its expense. Tenant shall immediately clean up and remove spills and debris in connection with its disposal of waste at or from the Premise. 5. Pest Control. Tenant shall keep the Premises in good and sanitary condition,free from waste at all times and keep the sidewalks and service-ways adjacent to the Premises neat, clean and in sanitary condition and free from dirt, rubbish, insects, pests, rodents, food and produce. Tenant shall, at its sole cost,arrange for pest control at such intervals as may reasonably be required by Landlord. Tenant shall provide Landlord with evidence of Tenant's compliance with this provision within 5 days after Landlord's written request. If, however, Landlord shall provide or arrange for such pest control, Landlord shall include such charges in Operating Costs. 6. Sign and Display Windows. Tenant shall not place any sign or any other item outside the Premises(including,without limitation, on the exterior walls and roof), or on the interior or exterior surfaces of doors or glass panes or windows, without the express written consent of Landlord. Tenant shall not install within the Premises any sign that is visible from outside the Premises or that is illuminated, without Landlord's prior written approval. If Landlord approves or requires illuminated signs, Tenant shall keep them illuminated each day during the hours designated by Landlord from time to time. All Tenant's signs shall be professionally designed, prepared and installed and in good taste so as not to detract from the general appearance of the Premises or the Shopping Center and shall comply with the sign criteria developed by Landlord as set forth in the Lease. The term"sign"for purposes of this provision shall mean any sign, placard, picture, name, direction, lettering, insignia, trademark, advertising material, advertising display, awning or other similar item, including Tenant's storefront sign. Blinds, shades, drapes and other such items shall not be placed in or about the windows in the Premises except to the extent, if any, that the character, shape, designs,color, material and make thereof is first approved by Landlord in writing. 7. Display of Merchandise. Tenant shall not place or maintain any permanent or temporary fixture or other item or display any merchandise outside of the Premises, except the Outdoor Patio Area. All interior displays of merchandise shall be tasteful and professional. 8. Intentionally Deleted. 9. Plumbing Equipment. The toilet rooms, urinals, wash bowls, drains and sewers and other plumbing fixtures, equipment and lines shall not be misused or used for any purpose other than that for which they were constructed, and no foreign substance of any kind shall be deposited therein. The expense incurred due to any breakage,stoppage or damage resulting from a violation of this provision shall be borne by Tenant, who shall, or whose employees, invitees or agents shall, have caused such breakage, stoppage or damage. 10. Exhaust System;Grease Traps;Odor Control. If Tenant operates a business on the Premises in which smoke and/or odor cannot be avoided by an exhaust termination location design, Tenant shall, at Tenant's sole cost and expense, provide an exhaust air pollution control system approved by Landlord. If Tenant operates a restaurant or utilizes a kitchen in the Premises, prior to opening for business,Tenant shall install and thereafter maintain,at Tenant's sole cost and expense, a grease containment system, approved by Landlord, and in compliance with Legal Requirements, on all roof exhaust fans serving the Premises. In addition, Tenant shall properly maintain, clean, repair and replace adequate grease traps. Tenant shall clean all grease interceptors no less than 4 times per year. Notwithstanding anything to the contrary contained in these Rules and Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 t � 11. Roof; Awnings and Projections. Tenant shall not install any aerial, antennae, satellite dish or any other device on the roof, exterior walls or Common Areas of the Shopping Center without obtaining Landlord's prior written consent,provided that Tenant shall be permitted to install, at Tenant's sole cost and expense, cable television service to the Premises. Tenant may install and have access to rooftop HVAC equipment only to the extent approved in writing or required by Landlord from time to time in connection with Tenant's obligations under this Lease. No awning or other projection shall be attached by or for Tenant to the exterior walls of the Premises or the Building. Any item set forth in this paragraph installed without the prior written consent of Landlord shall be subject to removal by Landlord without notice to Tenant all at Tenant's sole cost • and expense. 12. Overloading Floors. Tenant shall not overload any floor or part thereof in the Premises, Building or Shopping Center, including any public corridors or elevators therein, and Landlord may designate the location of safes, vaults and all other heavy articles and require supplementary supports of such material and dimensions as Landlord may deem necessary to properly distribute the weight at Tenant's expense (including expenses for structural review and engineering). 13. Locks and Keys. Upon termination of this Lease or Tenant's right to possession, Tenant shall:(I)return to Landlord all keys, parking stickers or key cards,and in the event of loss of any such items,shall pay Landlord therefore; and(ii)advise Landlord as to the combination of any vaults or locks that Landlord permits to remain in the Premises. 14. Unattended Premises. Before leaving the Premises unattended,Tenant shall close and securely lock all doors or other means of entry to the Premises and shut off all lights (except signs required to be illuminated hereunder),water faucets and other utilities in the Premises(except heat to the extent necessary to prevent the freezing or bursting of pipes). This provision shall not imply that Tenant may leave the Premises unattended in violation of the operating requirements set forth elsewhere in this Lease. 15. Heating Facilities. If the Premises are equipped with heating facilities separate from those in the remainder of the Shopping Center, Tenant shall keep the Premises at a temperature sufficiently high to prevent freezing of water in pipes and fixtures. 16. Food and Beverages; Game and Vending Machines. Except to the extent expressly permitted under this Lease, Tenant shall not: (I)use the Premises for the manufacture, preparation, display, sale, barter, trade, gift or service of food or beverages, including, without limitation, intoxicating liquors; or(ii)install, operate or use any video, electronic or pinball game or machine, or any coin or token operated vending machine or device to provide products, merchandise, food, beverages, candy, cigarettes or other commodities or services, including,but not limited to, pay lockers, pay toilets, scales and amusement devices; PROVIDED, HOWEVER, that Tenant may install vending machines for the sale of non-alcoholic beverages,food and candy in an area not visible from the sale area or exterior of the Premises for the exclusive use of Tenant's employees. 17. Labor Relations. Tenant shall conduct its labor relations and relations with employees so as to avoid strikes,picketing and boycotts of,on or about the Premises or Shopping Center. If any of Tenant's employees strike, or if picket lines or boycotts or other visible activities objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 remove or cause to be removed all such employees, agents, contractors and subcontractors until the dispute has been settled. - 18. Landlord's Trade Name and Trademarks. No symbol, design, name (other than the name of the Shopping Center in Tenant's advertising as permitted or required by this Lease), mark or insignia adopted by Landlord for the Shopping Center or picture or likeness of the Shopping Center shall be used by Tenant without the prior written consent of Landlord. 19. Prohibited Activities. Tenant shall not: (i) use strobe, flashing lights or rotating spotlights in or on the Premises (or other areas of the Shopping Center) or in any signs for the Premises; (ii) use, sell or distribute leaflets, handbills, bumper stickers, other stickers or decals, balloons or other such articles in the Premises(or other areas of the Shopping Center);(iii)operate any loudspeaker,telephone set, phonograph, radio, CD player or other musical or sound producing instrument or devise that can be heard outside the Premises, provided, however, Tenant shall be permitted to operate the foregoing items provided Tenant's operation of the same does not constitute a nuisance or disturb other tenants at the Shopping Center;(iv)operate any electrical or other device which interferes with or impairs radio,television, microwave,or other broadcasting or reception from or in the Shopping Center or elsewhere; (v) make or permit objectionable noise, vibration, smoke, fumes, vapors or odors to emanate from the Premises unless, in the case of smoke, fumes, vapors, or odors,Tenant installs and maintains a grease containment system or, if applicable, skin and hair salon odor control system, approved by Landlord in writing; (vi) do or permit anything in or about the Premises or any other areas of the Shopping Center that is unlawful, immoral, obscene, pornographic, or which tends to create or maintain a nuisance or do any act tending to injure the reputation of the Shopping Center; (vii) use or permit upon the Premises or other areas of the Shopping Center anything that violates the certificates of occupancy issued for the Premises or the Shopping Center, or causes a cancellation of Landlord's insurance policies or increases Landlord's insurance premiums (and Tenant shall comply with all requirements of Landlord's insurance carriers, the American Insurance Association, and any board of fire underwriters);(viii)use the Premises for any purpose,or permit upon the Premises or any areas of the Shopping Center anything that may be dangerous to parties or property (including, but not limited to,flammable oils,fluids, paints,chemicals,firearms or any explosive articles or material(s); (ix) cause, conduct, permit or advertise any auction or closing-out or wholesale business in the Shopping Center;or any distress sale,fire sale,bankruptcy sale,liquidation,relocation sale,closing sale,going-out-of-business sale,sheriffs sale, receiver's sale, or any other sale that, in Landlord's opinion, adversely affects the reputation of the Shopping Center or suggests that the business operations are to be discontinued in the Premises, nor(x)do or permit anything to be done upon the Premises or any other areas of the Shopping Center in any way tending to disturb, bother or annoy any other tenant at the Shopping Center or the occupants of neighboring property. 20. Responsibility for Compliance. Tenant -shall be responsible for ensuring compliance with these Rules and Regulations, as they may be amended from time to time, by Tenant's employees and, as applicable, by Tenant's agents, invitees,contractors, subcontractors and suppliers. C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 EXHIBIT C-II GIFT CERTIFICATE CHECK PROGRAM GUIDELINES: The Gift Certificate account will be handled by a third party. Such third party as well as the Shopping Center office on-site(if any)will sell Shopping Center Gift Certificates. The account is set up as a checking account with the Gift Certificates treated like checks. The Gift Certificates will be in the form of checks with customized amounts up to and including $100.00, never exceeding that amount. When you receive one of the Shopping Center Gift Certificates from a customer, please do the following: Verification. Verify the information on the certificate and the expiration date. 1. Digital Typed. Make sure there is a line of digital type directly below the$Amount line which shows the sum of dollars and cents. This should be the same amount of money written or typed on the $Amount line. 2. Redeeming Funds.The customer may spend all or a portion of the Gift Certificate in your store. Redeem the full amount on the Gift Certificate to the customer, (i.e. if the Gift Certificate is for$100.00 and the customer makes a purchase for$75.00, you will need to give them the additional amount in cash.) 3. Reimbursed. You will be reimbursed for the total amount on the Gift Certificate. 4. Endorsement.The Gift Certificates are handled like checks. The customer must endorse them on the back in your presence. Then, include them in your daily deposit and they will be treated like a check. Gift Certificates are valid for one year from the purchase date and cannot be replaced if lost or stolen. Photocopies or duplicates will not be accepted. C-II-1 andlord in writing; (vi) do or permit anything in or about the Premises or any other areas of the Shopping Center that is unlawful, immoral, obscene, pornographic, or which tends to create or maintain a nuisance or do any act tending to injure the reputation of the Shopping Center; (vii) use or permit upon the Premises or other areas of the Shopping Center anything that violates the certificates of occupancy issued for the Premises or the Shopping Center, or causes a cancellation of Landlord's insurance policies or increases Landlord's insurance premiums (and Tenant shall comply with all requirements of Landlord's insurance carriers, the American Insurance Association, and any board of fire underwriters);(viii)use the Premises for any purpose,or permit upon the Premises or any areas of the Shopping Center anything that may be dangerous to parties or property (including, but not limited to,flammable oils,fluids, paints,chemicals,firearms or any explosive articles or material(s); (ix) cause, conduct, permit or advertise any auction or closing-out or wholesale business in the Shopping Center;or any distress sale,fire sale,bankruptcy sale,liquidation,relocation sale,closing sale,going-out-of-business sale,sheriffs sale, receiver's sale, or any other sale that, in Landlord's opinion, adversely affects the reputation of the Shopping Center or suggests that the business operations are to be discontinued in the Premises, nor(x)do or permit anything to be done upon the Premises or any other areas of the Shopping Center in any way tending to disturb, bother or annoy any other tenant at the Shopping Center or the occupants of neighboring property. 20. Responsibility for Compliance. Tenant -shall be responsible for ensuring compliance with these Rules and Regulations, as they may be amended from time to time, by Tenant's employees and, as applicable, by Tenant's agents, invitees,contractors, subcontractors and suppliers. C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 EXHIBIT D FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT(this "Agreement")is made by and between TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York corporation with offices at 730 Third Avenue, New York, New York 10017 ("Lender") and Brixco, Inc., a Nebraska corporation, with its principal place of business at ("Tenant"). RECITALS: A. Lender has made or is about to make a loan (together with all advances and increases, the "Loan") to, 168th and Dodge, L.P., a Nebraska limited partnership ("Borrower"). B. Borrower,as landlord, and Tenant have entered into a Lease dated (the "Lease") which leased to Tenant Suite (the "Leased Space") located in the Property (defined below). C. The Loan is or will be secured by the Mortgage, Assignment of Leases and Rents, Fixture Filing Statement and Security Agreement recorded or to be recorded in the official records of the County of Douglas,State or Commonwealth of Nebraska(together with all advances, increases, amendments or consolidations, the "Mortgage") and the Assignment of Leases and Rents recorded or to be recorded in such official records (together with all amendments or consolidations,the"Assignment"),assigning to Lender the Lease and all rent,additional rent and other sums payable by Tenant under the Lease (the "Rent"). D. The Mortgage encumbers the real property,improvements and fixtures located at 168th Street and Dodge Street, in the City of Omaha,County of Douglas,State or Commonwealth of Nebraska,commonly known as Village Pointe Shopping Center,and described on Exhibit"A"(the "Property"). IN CONSIDERATION of the mutual agreements contained in this Agreement,Lender and Tenant agree as follows: 1. The Lease and all of Tenants rights under the Lease are and will remain subject and subordinate to the lien of the Mortgage and all of Lender's rights under the Mortgage and Tenant will not subordinate the Lease to any other lien against the Property without Lender's prior consent. 2. This Agreement constitutes notice to Tenant of the Mortgage and the Assignment and,upon receipt of notice from Lender,Tenant will pay the Rent as and when due under the Lease to Lender and the payments will be credited against the Rent due under the Lease. 3. Tenant does not have and will not acquire any right or option to purchase any portion of or interest in the Property. 4. Tenant and Lender agree that if Lender exercises its remedies under the D-1 t limited to,flammable oils,fluids, paints,chemicals,firearms or any explosive articles or material(s); (ix) cause, conduct, permit or advertise any auction or closing-out or wholesale business in the Shopping Center;or any distress sale,fire sale,bankruptcy sale,liquidation,relocation sale,closing sale,going-out-of-business sale,sheriffs sale, receiver's sale, or any other sale that, in Landlord's opinion, adversely affects the reputation of the Shopping Center or suggests that the business operations are to be discontinued in the Premises, nor(x)do or permit anything to be done upon the Premises or any other areas of the Shopping Center in any way tending to disturb, bother or annoy any other tenant at the Shopping Center or the occupants of neighboring property. 20. Responsibility for Compliance. Tenant -shall be responsible for ensuring compliance with these Rules and Regulations, as they may be amended from time to time, by Tenant's employees and, as applicable, by Tenant's agents, invitees,contractors, subcontractors and suppliers. C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 Mortgage or the Assignment and if Tenant is not then in default under this Agreement and if Tenant is not then in default beyond any applicable grace and cure periods under the Lease: (a) Lender will not name Tenant as a party to any judicial or non judicial foreclosure or other proceeding to enforce the Mortgage unless joinder is required under applicable law but in such case Lender will not seek affirmative relief against Tenant, the Lease will not be terminated and Tenant's possession of the Leased Space will not be disturbed; (b) If Lender or any other entity (a "Successor Landlord") acquires the Property through foreclosure, by other proceeding to enforce the Mortgage or by deed-in-lieu of foreclosure (a "Foreclosure"), Tenant's possession of the Leased Space will not be disturbed and the Lease will continue in full force and effect between Successor Landlord and Tenant; and (c) If, notwithstanding the foregoing, the Lease is terminated as a result of a Foreclosure, a lease between Successor Landlord and Tenant will be deemed created, with no further instrument required, on the same terms as the Lease except that the term of the replacement lease will be the then unexpired term of the Lease. Successor Landlord and Tenant will execute a replacement lease at the request of either. 5. Upon Foreclosure,Tenant will recognize and attorn to Successor Landlord as the landlord under the Lease for thebalanceTenant's of the term. Tenant s attornment will be self operative with no further instrument required to effectuate the attornment except that at Successor Landlord's request,Tenant will execute instruments reasonably satisfactory to Successor Landlord confirming the attornment. 6. Succ essor Landlord will not be: (a) liable for any act or omission of any prior landlord under the Lease occurring before the date of the Foreclosure except for repair and maintenance obligations of a continuing nature imposed on the landlord under the Lease; (b) required to credit Tenant with any Rent paid more than one month in advance or for any security deposit unless such Rent or security deposit has been received by Successor Landlord; (c) bound by any amendment, renewal or extension of the Lease that is inconsistent with the terms of this Agreement or is not in writing and signed both by Tenant and landlord; (d) bound by any reduction of the Rent unless the reduction is in connection with an extension or renewal of the Lease at prevailing market terms or was made with Lender's prior consent; (e) bound by any reduction of the term' of the Lease or any termination, cancellation or surrender of the Lease unless the reduction,termination, cancellation or surrender occurred during the last 6 months of the term or was made with Lender's prior consent; (f) bound by any amendment, renewal or extension of the Lease entered into 'For purposes of this subparagraph "the term of the Lease" includes any renewal term after the right to renew has been exercised. D-2 ion of the Shopping Center or suggests that the business operations are to be discontinued in the Premises, nor(x)do or permit anything to be done upon the Premises or any other areas of the Shopping Center in any way tending to disturb, bother or annoy any other tenant at the Shopping Center or the occupants of neighboring property. 20. Responsibility for Compliance. Tenant -shall be responsible for ensuring compliance with these Rules and Regulations, as they may be amended from time to time, by Tenant's employees and, as applicable, by Tenant's agents, invitees,contractors, subcontractors and suppliers. C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 without Lender's prior consent if the Leased Space represents 50%or more of the net rentable area of the building in which the Leased Space is located; (g)bound by any amendment,renewal or extension of the Lease entered into without Lender's prior consent, if Tenant is a major department store or anchor tenant; (h) subject to any credits, offsets, claims, counterclaims or defenses that Tenant may have that arose prior to the date of the Foreclosure or liable for any damages Tenant may suffer as a result of any misrepresentation, breach of warranty or any act of or failure to act by any party other than Successor Landlord; (i) bound by any obligation to make improvements to the Property, including the Leased Space, to make any payment or give any credit or allowance to Tenant provided for in the Lease or to pay any leasing commissions arising out of the Lease,except that Successor Landlord will be: (i) bound by any such obligations provided for in the Lender-approved form lease; (ii) bound by any such obligations if the overall economic terms of the Lease (including the economic terms of any renewal options)represented market terms for similar space in properties comparable to the Property when the Lease was executed; and (iii) bound to comply with the casualty and condemnation restoration provisions included in the Lease provided that Successor Landlord receives the insurance or condemnation proceeds; or (j) liable for obligations under the Lease with respect to any off-site property or facilities for the use of Tenant(such as off-site leased space or parking)unless Successor Landlord acquires in the Foreclosure the right, title or interest to the off-site property. 7. Lender will have the right, but not the obligation, to cure any default by Borrower, as landlord, under the Lease. Tenant will notify Lender of any default that would entitle Tenant to terminate the Lease or abate the Rent and any notice of termination or abatement will not be effective unless Tenant has so notified Lender of the default and Lender has had a 30-day cure period(or such longer period as may be necessary if the default is not susceptible to cure within 30 days) commencing on the latest to occur of the date on which (i)the cure period under the Lease expires; (ii) Lender receives the notice required by this paragraph; and (iii) Successor Landlord obtains possession of the Property if the default is not susceptible to cure without possession. 8. All notices, requests or consents required or permitted to be given under this Agreement must be in writing and sent by certified mail, return receipt requested or by nationally recognized overnight delivery service providing evidence of the date of delivery, with all charges prepaid, addressed to the appropriate party at the address set forth above. 9. Any claim by Tenant against Successor Landlord under the Lease or this Agreement will be satisfied solely out of Successor Landlord's interest in the Property and Tenant will not seek recovery against or out of any other assets of Successor Landlord. Successor Landlord will have no liability or responsibility for any obligations under the Lease that arise subsequent to any transfer of the Property by Successor Landlord. 10. This Agreement is governed by and will be construed in accordance with the D-3 20. Responsibility for Compliance. Tenant -shall be responsible for ensuring compliance with these Rules and Regulations, as they may be amended from time to time, by Tenant's employees and, as applicable, by Tenant's agents, invitees,contractors, subcontractors and suppliers. C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 laws of the state or commonwealth in which the Property is located. 11. Lender and Tenant waive trial by jury in any proceeding brought by, or counterclaim asserted by, Lender or Tenant relating to this Agreement. 12. If there is a conflict between the terms of the Lease and this Agreement, the terms of this Agreement will prevail as between Successor Landlord and Tenant. 13. This Agreement binds and inures to the benefit of Lender and Tenant and their respective successors, assigns, heirs, administrators, executors, agents and representatives. 14. This Agreement contains the entire agreement between Lender and Tenant with respect to the subject matter of this Agreement, may be executed in counterparts that together constitute a single document and may be amended only by a writing signed by Lender and Tenant. IN WITNESS WHEREOF, Lender and Tenant have executed and delivered this Agreement as of , 2009. TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York corporation By: Name: Title: BRIXCO, INC., a Nebraska corporation By: Name: Title: D-4 executed; and (iii) bound to comply with the casualty and condemnation restoration provisions included in the Lease provided that Successor Landlord receives the insurance or condemnation proceeds; or (j) liable for obligations under the Lease with respect to any off-site property or facilities for the use of Tenant(such as off-site leased space or parking)unless Successor Landlord acquires in the Foreclosure the right, title or interest to the off-site property. 7. Lender will have the right, but not the obligation, to cure any default by Borrower, as landlord, under the Lease. Tenant will notify Lender of any default that would entitle Tenant to terminate the Lease or abate the Rent and any notice of termination or abatement will not be effective unless Tenant has so notified Lender of the default and Lender has had a 30-day cure period(or such longer period as may be necessary if the default is not susceptible to cure within 30 days) commencing on the latest to occur of the date on which (i)the cure period under the Lease expires; (ii) Lender receives the notice required by this paragraph; and (iii) Successor Landlord obtains possession of the Property if the default is not susceptible to cure without possession. 8. All notices, requests or consents required or permitted to be given under this Agreement must be in writing and sent by certified mail, return receipt requested or by nationally recognized overnight delivery service providing evidence of the date of delivery, with all charges prepaid, addressed to the appropriate party at the address set forth above. 9. Any claim by Tenant against Successor Landlord under the Lease or this Agreement will be satisfied solely out of Successor Landlord's interest in the Property and Tenant will not seek recovery against or out of any other assets of Successor Landlord. Successor Landlord will have no liability or responsibility for any obligations under the Lease that arise subsequent to any transfer of the Property by Successor Landlord. 10. This Agreement is governed by and will be construed in accordance with the D-3 20. Responsibility for Compliance. Tenant -shall be responsible for ensuring compliance with these Rules and Regulations, as they may be amended from time to time, by Tenant's employees and, as applicable, by Tenant's agents, invitees,contractors, subcontractors and suppliers. C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 ACKNOWLEDGMENT State of County of On this day of 2009 before me, personally appeared who acknowledged herself/himself to be the of , a , and that she/he, as such being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the by herself/himself as . In witness whereof I hereunto set my hand and official seal. Notary D-5 L epairs to the 8-10 parking spots in the parking lot adjacent to the Premises. Any work to be performed with respect to the Premises which is not set forth above as part of Landlord's Work, including,without limitation, any work required by any governmental authority, shall be performed by Tenant as a part of Tenant's Work, subject to and in accordance with the conditions set forth in the Lease and Exhibit B-II. B-I-1 • ACKNOWLEDGMENT State of County of On this day of 2009 before me, personally appeared who acknowledged herself/himself to be the of , a , and that she/he, as such being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the by herself/himself as In witness whereof I hereunto set my hand and official seal. Notary • D-6 the 8-10 parking spots in the parking lot adjacent to the Premises. Any work to be performed with respect to the Premises which is not set forth above as part of Landlord's Work, including,without limitation, any work required by any governmental authority, shall be performed by Tenant as a part of Tenant's Work, subject to and in accordance with the conditions set forth in the Lease and Exhibit B-II. B-I-1 EXHIBIT A To SNDA LEGAL DESCRIPTION OF THE PROPERTY [To be provided by Landlord] D A-1 dged herself/himself to be the of , a , and that she/he, as such being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the by herself/himself as In witness whereof I hereunto set my hand and official seal. Notary • D-6 the 8-10 parking spots in the parking lot adjacent to the Premises. Any work to be performed with respect to the Premises which is not set forth above as part of Landlord's Work, including,without limitation, any work required by any governmental authority, shall be performed by Tenant as a part of Tenant's Work, subject to and in accordance with the conditions set forth in the Lease and Exhibit B-II. B-I-1 EXHIBIT E EXCLUSIVES Tenant shall not violate,or cause Landlord to violate,any of the rights of exclusive use listed below. Tenant agrees that it shall be bound by each of such exclusives as though such exclusive were expressly applicable to Tenant. In addition to all rights and remedies Landlord may have pursuant to this Lease, at law or in equity, with respect to any such violation, Tenant hereby agrees that Landlord shall be entitled to injunctive relief with respect to any violation by Tenant of any exclusive set forth herein. Cheeseburger in Paradise Landlord will not operate or permit any other tenant in any portion of the Development to operate or permit ... (i)the operation of any other"tropical themed"restaurants in the Development or(ii) any other business in Buildings "B", "Q", and "R"to utilize live music in its premises unless such live music is incidental to its primary business. A "tropical themed" restaurant shall mean any restaurant: (i)with the word"tropical", "island", "paradise", or any variation thereof in its name or specified in its advertising or marketing efforts, or any other words that give a connotation of an island or tropical themed atmosphere in its name; (ii)where the sale of island or Caribbean food -or drinks collectively constitute twenty five percent (25%) or more of its menu items (including appetizers) or twenty five percent(25%) or more of its entrée sales computed on a dollar basis; (iii) any restaurant with a menu or theme atmosphere similar to Kahunaville or Bahama Breeze; and (iv) which utilizes live music in its premises (which live music is not incidental to the business). Bed, Bath & Beyond Landlord shall not lease ... any other premises in the Shopping Center... to be occupied ... by a "Primary Competitor"(hereinafter defined)or a"Secondary Competitor"(hereinafter defined). For purposes hereof,a"Primary Competitor"shall mean a home store(such as, by way of illustration only, Linens 'n Things, Home Goods and Strouds) whose primary use is the sale, rental or distribution, either singly or in any combination, of the following items (the "Exclusive Items"): linens and domestics, bathroom items, housewares,frames and wall art,window treatments,and closet, shelving and storage items; and a"Secondary Competitor"shall mean a store occupying more than five thousand(5,000)square feet of Floor Area whose primary use is the sale, rental or distribution, either singly or in any combination, of the Exclusive Items; provided, however, that any"Upscale Tenant" (hereinafter defined)shall not be deemed to be a Secondary Competitor. The term "Upscale Tenant" shall mean any first class specialty retail tenant normally found in regional malls and primarily selling their respective merchandise under private labels(such as, by way of illustration only, Eddie Bauer, Williams Sonoma, Talbots and Victoria's Secret). Notwithstanding the foregoing, any tenant, user, owner or subtenant of the Shopping Center... shall have the right to utilize its respective premises for the sale, rental or distribution of the Exclusive Items within an aggregate area (which shall include an allocable portion of the aisle space adjacent to such sales, rental and/or distribution area)not to exceed ten percent(10%)of the Floor Area of such tenant's or subtenant's premises. E-1 D-3 20. Responsibility for Compliance. Tenant -shall be responsible for ensuring compliance with these Rules and Regulations, as they may be amended from time to time, by Tenant's employees and, as applicable, by Tenant's agents, invitees,contractors, subcontractors and suppliers. C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 Cold Stone Landlord shall not ... lease space within the Shopping Center to any tenant whose Primary Use is the sale of ice cream,frozen yogurt and other related products. "Primary Use"shall be defined as in excess of twenty five percent (25%) of such other tenant's Gross Sales, as defined herein. Scheels All Sports Landlord shall not lease ...[to] any other premises on any Lot (other than the Scheels Lot)to be occupied,whether by a tenant... or any other occupant, (hereinafter"User")for a purpose which includes the sale of branded athletic specific apparel and/or sporting goods or equipment (hereafter, the "Scheels Exclusive"); provided, however, the foregoing restrictions shall in no event restrict (i) a department store (as defined herein)from containing a shoe department that sells athletic shoes and (ii) with the approval of [Landlord] only, one premises in the Shopping Center not to exceed five thousand (5,000)square feet which may be devoted primarily to athletic shoes such as Athletes Foot or Footlocker or (iii) any User who sells branded athletic specific apparel and/or sporting goods or equipment, provided that such User does not utilize in excess of 10% of gross leasable area of its space(including adjacent aisle space)for the sale or display of branded athletic specific apparel and/or sporting goods or equipment (considering all of such items in the aggregate). For purposes hereof, "department store"shall be defined as a traditional general merchandise store occupying at least 75,000 square feet such as Sears, May Company, Marshall Fields, or Nordstrom. Douglas Theatre Landlord shall not permit any portion of the Shopping Center to be used as a movie theatre; provided, however,the foregoing restriction is not intended, nor shall it in any way limit the use or display of films in any other premises within the Shopping Center to assist with the sale or rental of any products or services (e.g., video monitors). Coldwater Creek Landlord agrees that ... so long as Coldwater Creek, Inc. is conducting as a primary business in the Premises the retail sale of goods and services relating to or containing reproductions of copyrighted material or trademarks created, owned or licensed by Coldwater Creek, Inc., or any of its affiliated or subsidiary companies, including private label and branded goods and services relating to: (a) apparel; (b) bath and body products; (c) bed linens; (d) books; (e) cards and gift wrap; (f)collectibles(porcelain, ceramics, china,coins,statues,wood,and the like);(g)footwear; (h) giftware; (i) house wares; (j) jewelry and watches; (k) packaged biscuits, cookies and confections; (I) perfume and scents; (m) posters; (n) records and compact discs, laser discs, audio cassettes, videocassette tapes; (o) toys, including plush toys and play things; and accessories related to the merchandise listed above(the items set forth in clauses(a)through(o) are sometimes hereinafter collectively referred to as the"Primary Use Products")under the trade name Coldwater Creek, Landlord will refrain from leasing any space in the Shopping Center to any future tenant or occupant for the permitted purpose of conducting as a primary business the sale of Primary Use Products bearing the brand name or logo of Coldwater Creek; provided, however,for purposes hereof,the sale of Primary Use Products as a primary business of Tenant shall mean the conduct of business by Tenant within the Premises such that: E-2 ance with these Rules and Regulations, as they may be amended from time to time, by Tenant's employees and, as applicable, by Tenant's agents, invitees,contractors, subcontractors and suppliers. C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 a. seventy-five percent (75%) or more of the Gross Sales of Tenant from the Premises consist of the sale of Primary Use Products bearing the Coldwater Creek brand name, or b. seventy-five percent(75%) of the retail Floor Area of the Premises is dedicated to the sale of Primary Use Products bearing the Coldwater Creek brand name. Pier 1 Imports (US), Inc: Landlord shall not ... lease to any other store located within the Shopping Center, for the use or purpose of selling or displaying for sale wicker or rattan furniture, decorative household furnishings of an imported nature and intended for use in sunrooms, living, dining and kitchen areas and on patios, or housewares imported from the Far East or Europe ... unless such use is incidental ... to such business. As used herein, incidental use or purpose shall mean the sale of furniture, decorative household furnishings or housewares customarily sold in Tenant's retail stores which for any one (1) such product line does not exceed ten percent (10%) of the Floor Area for such business. This Section ... shall not apply to ... Scheels, Bed, Bath&Beyond,Cost Plus, Border's Books, Barnes & Noble, Murellis, Unique Accents, Z Gallerie, Wild Oats, Sur La Table, Anthropologie and Linen Gallery. Garbo's Salon &Spa, Inc. Landlord shall not lease space within the Shopping Center to any tenant whose Primary Use is the operation of a day spa/salon. "Primary Use"shall be defined as any use which occupies more than (i) five hundred (500) square feet of gross Floor Area, or (ii) ten percent (10%) of such tenant/user's sales area, whichever is less. For the purposes of this exclusive,the following are excluded ... any future tenant operating as a spa and occupying two thousand(2,000)square feet or less of GLA. The preceding shall in no way limit any tenant in the Shopping Center operating as a hair salon, such as"Super Clips". Periwinkles Landlord shall not lease space within the Shopping Center to any tenant whose Primary Use is the retail sale of"Brighton"accessories or products. "Primary Use"shall be defined as any use which occupies more than (i) five hundred (500) square feet of gross Floor Area, or (ii) ten percent (10%) of such tenant/user's sales area, whichever is less. For the purposes of this exclusive,any future tenant occupying four thousand(4,000)square feet or more of GLA shall be excluded. DSW For so long as Tenant is open and operating its business in the Leased Premises primarily for the sale of shoes, Landlord will not lease any space within the Center or permit any space within the Center to be used by any person, persons, partnership or entity who devotes five percent(5%)or more of its selling area to the sale of shoes and other footwear; provided, however that the foregoing restriction shall not apply to: E-3 se listed above(the items set forth in clauses(a)through(o) are sometimes hereinafter collectively referred to as the"Primary Use Products")under the trade name Coldwater Creek, Landlord will refrain from leasing any space in the Shopping Center to any future tenant or occupant for the permitted purpose of conducting as a primary business the sale of Primary Use Products bearing the brand name or logo of Coldwater Creek; provided, however,for purposes hereof,the sale of Primary Use Products as a primary business of Tenant shall mean the conduct of business by Tenant within the Premises such that: E-2 ance with these Rules and Regulations, as they may be amended from time to time, by Tenant's employees and, as applicable, by Tenant's agents, invitees,contractors, subcontractors and suppliers. C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 (a) Any tenants that are operating prototypical stores consistent with their national operations and floor-plans may devote up to ten percent (10%) of their selling area to the sale of shoes and other footwear, provided that such tenants shall not be permitted to operate an off-price branded, self-serve shoe and/or footwear store (such as the format used by DSW, Payless Shoes and similar brands); 1.1.1.1 (b) Scheels (located in Building "D" designated on the Site Plan) and any assignee or successor-in-interest of Scheels that is then operating in substantially all of Building "D"; 1.1.1.2(c) Those certain "Retail Fashion Tenants" (excluding any such tenants' subtenants, assignees, licensees and/or successors) identified below as "Retail Fashion Tenants", so long as such retail fashion tenants are operating prototypical stores consistent with the terms of their leases and consistent with the majority of such tenants' national operations and floor-plans in the Midwestern region of the United States; (d) Up to two (2) Center tenants each occupying less than 3,000 square feet of leasable space at the Center; and (e) one (1) Center tenant occupying no more than 5,000 square feet of leasable space at the Center. "Retail Fashion Tenants": 1. Anthropologie 2. Coldwater Creek 3. Chico's 4. White House/Black Market 5. Banana Republic 6. Jos A Bank 7. OshKosh 8. Christopher& Banks 9. Limited Too 10. Ann Taylor/Ann Taylor Loft 11. Talbot's 12. Gap/Gap Kids 13. Victoria's Secret 14. Brighton's 15. Aeropostale 16. Abercrombie and Fitch/Abercrombie 17. JCrew Scooter's Java Express Subject to the provisions of the Lease, Landlord will not lease any space in Buildings C, E or M in the Shopping Center"primarily" (as defined below) for the sale of fresh-brewed specialty coffee and/or espresso drinks. The term"primarily"shall mean the tenant or occupant of such premises utilizes more than fifty percent(50%)of such premises for the sale of fresh-brewed specialty coffee and/or espresso drinks. Notwithstanding anything in this Lease to the contrary, the foregoing E-4 I future tenant occupying four thousand(4,000)square feet or more of GLA shall be excluded. DSW For so long as Tenant is open and operating its business in the Leased Premises primarily for the sale of shoes, Landlord will not lease any space within the Center or permit any space within the Center to be used by any person, persons, partnership or entity who devotes five percent(5%)or more of its selling area to the sale of shoes and other footwear; provided, however that the foregoing restriction shall not apply to: E-3 se listed above(the items set forth in clauses(a)through(o) are sometimes hereinafter collectively referred to as the"Primary Use Products")under the trade name Coldwater Creek, Landlord will refrain from leasing any space in the Shopping Center to any future tenant or occupant for the permitted purpose of conducting as a primary business the sale of Primary Use Products bearing the brand name or logo of Coldwater Creek; provided, however,for purposes hereof,the sale of Primary Use Products as a primary business of Tenant shall mean the conduct of business by Tenant within the Premises such that: E-2 ance with these Rules and Regulations, as they may be amended from time to time, by Tenant's employees and, as applicable, by Tenant's agents, invitees,contractors, subcontractors and suppliers. C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 exclusive shall not apply to or be binding upon (a) any existing tenant or any party who has previously executed a lease, sublease or other agreement for occupancy in the Shopping Center; (b) any tenant or occupant which provides fresh-brewed specialty coffee to its customers free of charge; (c) any tenant over 20,000 square feet; or(d) any full service sit-down restaurant. Funny Bone Comedy Club Provided Tenant is fully open, staffed and operating its business for the Permitted Use in all portions of the Premises, Landlord shall not lease space within the Shopping Center to any tenant • whose Primary Use is the operation of a comedy club. Archiver's Landlord will not lease any space in the Shopping Center primarily for the sale of any or all of the following:photo albums,scrapbooks,scrapbook supplies,decorative and specialty papers generally used for craft purposes (however, the foregoing shall not restrict the sale of specialty paper generally used for writing purposes and not for craft purposes), rubber stamps or photograph storage and organizational products. Kona Grill Landlord shall not for the Term of this Lease lease space within the Shopping Center to any restaurant tenant whose Primary Use is the preparation and sale of sushi or which has a free- standing sushi bar. "Primary Use"shall be defined as(x)in excess of twenty-five percent(25%)of such other tenant's gross sales of sushi or(y)the operation of a free-standing sushi bar. For the purposes of Tenant's Exclusive,the following are excluded: (i)any tenant over 25,000 square feet of Floor Area, whether or not presently leasing or occupying the Shopping Center; and (ii) any tenant or user in the Shopping Center who has previously executed a lease or agreement,and any successor or assign or similar concept of the foregoing. • Best Buv Subject to existing tenant's within the Shopping Center, Landlord shall not permit any person or entity other than Tenant in space leased directly or indirectly from Landlord in the Shopping Center, as its primary business to sell, rent, service and/or warehouse (and, if applicable, install in motor vehicles) the following product categories (the "Tenant's Exclusive Use Items"): electronic equipment or appliances(including,without limitation,televisions,stereos,radios and dvd or video machines); major household appliances(including,without limitation,refrigerators,freezers,stoves, microwave ovens, dishwashers, washers and dryers); personal computers and peripherals, computer software; car radios, stereos, tape decks or phones; entertainment software, including compact discs, music videos,dvds and prerecorded tapes;accessories and connectors for products normally sold by Tenant(including, without limitation, cable connectors, surge protectors, cables; wires and batteries); telephones, telecopy, facsimile and photocopy machines; photographic cameras or equipment; office equipment, supplies or furniture; any substitutes for or items which are a technological evolution of the foregoing items,without Tenant's prior written consent,which may be granted or withheld in Tenant's sole and absolute discretion. Notwithstanding anything to the contrary, other tenants or users may sell Tenant's Exclusive Use Items identified above on an "Incidental Use" basis. "Incidental Use" shall mean the lesser of five percent (5%) of any such tenants' or users' Floor Area or 500 square feet devoted to the sale and display of Exclusive Use Items, but any Incidental Use shall be entitled to occupy a minimum of 150 square feet of Floor Area, and with respect to a tenant or user occupying twenty thousand (20,000) square feet or E-5 C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 more, not more than ten percent(10%) of such tenants'or users'square footage may be devoted to the sale and display of Exclusive Use Items. In addition to the foregoing,Tenant shall have the right to (a) non-exclusively sell books, magazines and sporting equipment, (b) sell gourmet and other food items in support of and incidental to the foregoing product categories, and (c) use up to seven percent (7%) of the Premises for a non-alcoholic beverage kiosk or bar, including seating area,with food,snack and bakery items incidental thereto,all categories in (a)(b)and(c)subject to and in accordance with restrictions set forth in the REA and further provided that such use shall not violate the Prohibited Uses or the Exclusives. Johnny's Italian Steakhouse Landlord shall not, for the Term of this Lease, lease, sublease or otherwise operate or contract, by sale, conveyance or otherwise, space within the Shopping Center to any restaurant or tenant under any of the following conditions: (a) any restaurant or tenant with over 25% of its gross sales from the sale of steaks; (b) any restaurant or tenant with over 40% of its gross sales from the sale of Italian food; (c) any restaurant or tenant with "steakhouse" in its name; (d) any restaurant or tenant with "Italian" in its name, unless such tenant has less than forty percent (40%) of its gross sales from the sale of Italian food; or the following restaurants/tenants: Biaggi's, Romano's Macaroni Grill, Olive Garden, Maggiano's Little Italy, Carrabba's Italian Grill, Outback Steakhouse, Fleming's Prime Steakhouse,Sullivan's, Morton's Steakhouse, Ruth's Chris Steakhouse,and Smith &Wolenski. The following are excluded: (i) any restaurant or tenant over 25,000 square feet of Floor Area, (ii) any tenant or user in the Shopping Center who has executed a lease prior to this Lease, (iii) any restaurant in the Shopping Center containing 2,500 square feet of Floor Area or less, (iv) any restaurant in the Shopping Center which primarily sells pizza from its premises (v)the restaurant commonly known as the"Firebird's Rocky Mountain Grill"provided such restaurant is only located on an outparcel identified on the Site Plan as "OP-2" or "OP-4" and (vi) the Shopping Center outparcels known as "OP-1" and "OP-3". Melting Pot Landlord shall not lease space within the Shopping Center to any restaurant tenant whose"Primary Use" is the preparation and sale of fondue. Primary Use shall be defined as in excess of five percent (5%) of such other tenant's gross sales of fondue at the Shopping Center. Outparcel Restriction ---"OP-4" So long as there is being operated a "Mimi's Cafe" from that real property identified as "OP-3", which outparcel is more particularly shown on the Site Plan attached to this Lease, then the Landlord will not lease,sublease or otherwise operate or contract,by conveyance or otherwise,the real property shown as"OP-4"on the Site Plan as a restaurant containing more than 3,500 square feet in size which serves breakfast, or for operation under any of the following trade names: Houlihan's, Friday's, Ruby Tuesday, Max& Erma's, Applebee's, BJ's or Red Robin. E-6 ntrary, other tenants or users may sell Tenant's Exclusive Use Items identified above on an "Incidental Use" basis. "Incidental Use" shall mean the lesser of five percent (5%) of any such tenants' or users' Floor Area or 500 square feet devoted to the sale and display of Exclusive Use Items, but any Incidental Use shall be entitled to occupy a minimum of 150 square feet of Floor Area, and with respect to a tenant or user occupying twenty thousand (20,000) square feet or E-5 C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 Paper Bizarre & Gifts Galore Subject to the limitations set forth in the lease, provided Tenant is the Tenant under this Lease and has not assigned or otherwise transferred its interest in this Lease or sublet the Premises or any part thereof, and so long as Tenant is selling greeting cards, invitations and stationary in the Premises and derives at least twenty-five-percent (25%) of gross sales from the sale of greeting cards, invitations and stationary (the "Primary Business") under the trade name "Paper Bizarre & Gifts" Landlord will refrain from leasing any space in the Shopping Center to any future tenant or occupant for the permitted purpose of conducting as a "Primary Use" the retail sale of greeting cards, invitations or stationary. • Finish Line Provided Tenant is the Tenant and has not assigned or otherwise transferred its interest in the Lease or sublet the Premises or any part thereof, so long as Tenant is conducting as a primary business in the Premises the retail sale of branded athletic shoes, branded athletic and licensed clothing and sporting goods under the Trade Name, Landlord will refrain from leasing any space in the Shopping Center to any future tenant or occupant for the permitted purpose of conducting as a primary business the retail sale of"Branded Athletic Footwear and Branded Athletic Clothing" (as such term is defined below); PROVIDED, HOWEVER, the aforementioned prohibition shall not apply to (i) any tenants occupying at least 15,000 square feet of Floor Area, or (ii) any existing tenant whose lease would permit the sale of the foregoing items without the consent of Landlord, (iii) any outparcel or(iv)The Gap, Inc. its affiliates and subsidiaries, with respect to self-branded and/or licensed shoes and apparel only. For the purposes hereof,the retail sale of branded athletic shoes, branded athletic and licensed clothing and sporting goods as a primary business shall mean at least (x) fifty-one percent (51%) of the sales area is used for the sale and display of branded athletic shoes, branded athletic and licensed clothing and sporting goods, or(y) fifty-one percent (51%)of the gross revenues are derived from the sale of branded athletic shoes, branded athletic and licensed clothing and sporting goods. Portrait Innovations • Landlord will not lease any space in the portions of the Shopping Center owned by Landlord operating "primarily as a photographic portrait studio" (as defined below). For purposes of this Section, "primarily.as a photographic portrait studio" shall mean that such tenant derives at least 20% of its Gross Sales from the sale of photographic portraits produced from photographs of subjects taken at the Premises(the"Exclusive Use"). Notwithstanding anything in this Lease to the contrary,the foregoing exclusive shall not apply to or be binding upon (a)any existing tenant or any party who has previously executed a lease, sublease or other agreement for occupancy in the Shopping Center, or a contract for the purchase of a parcel within the Shopping Center ... (b)any tenant or occupant of the Shopping Center that derives less than 20% of its Gross Sales from the sale of photographic portraits, (c) any existing or future tenant or occupant occupying more than 10,000 square feet of the Shopping Center, or(d) any of the"Outlots"shown on the Site Plan. Paradise Bakery Landlord agrees that during the time that Cutch, Inc. is the Tenant under the terms of this Lease• E-7 • Incidental Use shall be entitled to occupy a minimum of 150 square feet of Floor Area, and with respect to a tenant or user occupying twenty thousand (20,000) square feet or E-5 C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 and has not otherwise assigned or otherwise transferred its interest in this Lease or sublet the Premises or any part thereof, and so long as Cutch, Inc. is operating the Premises as a full service bakery offering delicatessen sandwiches under the Trade Name, Landlord will refrain from leasing space in the Shopping Center to a tenant that operates a business whose"Primary Business"is the operation of a full service bakery that offers delicatessen sandwiches. As used herein "Primary Business"shall mean a business that obtains more than 25% of its gross sales from its premises (x)from the operation of a bakery or(y)the sale of delicatessen sandwiches;provided,however:(i) the terms and provisions of this section shall not apply to nor be of any force or effect with respect to(a)any existing tenant or occupant of the Shopping Center(i.e. any tenant or occupant under an executed lease or occupancy or purchase agreement),or any successor,assignee or sublessee of such existing tenant or occupant, for so long as any such existing tenant's lease or any renewal, extension or replacement (in connection with a bankruptcy or leasehold mortgage foreclosure proceeding)thereof, or any such existing occupant's occupancy agreement, is in effect, or to the premises demised thereunder, (b)any future tenant or occupant of the Shopping Center leasing or occupying more than 15,000 square feet of space in the Shopping Center; (c)any outparcel or free- standing building; (d)the occupant of the Panchero's space shown on Exhibit A-I; or(e)The Gap, Inc., it's successors, assigns and affiliates; and (ii) the terms of this section shall expire without further act of the parties upon the occurrence of an Event of Default on the part of Tenant under this Lease or if Landlord rightfully terminates Cutch, Inc.'s right to possession of the Premises (with or without a termination of the Lease) or if Cutch, Inc.fails to operate from the Premises the Primary Business for a period of thirty (30) days. Water Dogs, LLC (d/b/a Three Doq Bakery) 1.1.2 Landlord agrees not to lease any part of the Shopping Center to a store whose Primary Use (as hereinafter defined)is the sale of gourmet pet treats or food, pet leashes, collars, pet clothing, and pet bowls. "Primary Use" is defined as the sale of gourmet pet treats or food, pet leashes, collars, pet clothing, and pet bowls representing more than 20% of a tenant's Gross Sales. Carters Landlord will refrain from leasing any space in the portion of the Shopping Center depicted as [Buildings B, 0 and Q on the Site Plan] to any ... tenant or occupant which tenant or occupant operates as a retail store displaying and/or selling apparel and footwear for infants,toddlers and/or children in more than 25%of its Floor Area(which shall include one-half of all adjacent aisle space). (Balance of this page intentionally left blank) • • E-8 y executed a lease, sublease or other agreement for occupancy in the Shopping Center, or a contract for the purchase of a parcel within the Shopping Center ... (b)any tenant or occupant of the Shopping Center that derives less than 20% of its Gross Sales from the sale of photographic portraits, (c) any existing or future tenant or occupant occupying more than 10,000 square feet of the Shopping Center, or(d) any of the"Outlots"shown on the Site Plan. Paradise Bakery Landlord agrees that during the time that Cutch, Inc. is the Tenant under the terms of this Lease• E-7 • Incidental Use shall be entitled to occupy a minimum of 150 square feet of Floor Area, and with respect to a tenant or user occupying twenty thousand (20,000) square feet or E-5 C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 EXHIBIT F FORM OF COMMENCEMENT DATE MEMORANDUM THIS COMMENCEMENT DATE MEMORANDUM ("Memorandum") dated as of , 20_, by and between, 168th and Dodge, L.P. ("Landlord"), and, Brixco, Inc. ("Tenant"). RECITALS: A. By that certain Shopping Center Lease dated as of between Landlord and Tenant (the "Lease"), Landlord leased to Tenant and Tenant leased from Landlord the Premises, subject to the conditions and limitations therein contained. B. Item 3(b)of the Cover Sheet of the Lease provides that, upon determination of the Commencement Date, Landlord and Tenant shall execute a memorandum which shall set forth, among other things,the actual Delivery Date,the Commencement Date,the exact Floor Area of the Premises,the date when Tenant may exercise its renewal option pursuant to Section of the Lease, and the date on which the initial term of the Lease shall expire (subject to Tenant's right, if any,to extend the Term of the Lease as provided therein),and shall evidence Tenant's acceptance of the Premises and agreement that Landlord has fully complied with Landlord's covenants and obligations. C. The Commencement Date and such other dates have been determined and, accordingly, the parties desire to enter into this Memorandum. D. Unless otherwise provided herein, all capitalized words and terms in this Memorandum shall have the same meanings ascribed to such words and terms in the Lease. NOW THEREFORE,in consideration of the mutual covenants and agreements hereinafter set forth,and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. The Delivery Date is . 2. The Commencement Date is 3. The Floor Area of the Premises is square feet. 4. Tenant shall• exercise its right to the first Option Term, if at all, 'before , subject to the conditions and limitations set forth in of the Lease. 5. Tenant shall exercise its right to the second Option Term, if at all, before , subject to the conditions and limitations set forth in of the Lease. 6. The date on which the initial Term of the Lease shall expire, unless such Term is extended by Tenant as provided in the Lease, is F-1 rs Landlord will refrain from leasing any space in the portion of the Shopping Center depicted as [Buildings B, 0 and Q on the Site Plan] to any ... tenant or occupant which tenant or occupant operates as a retail store displaying and/or selling apparel and footwear for infants,toddlers and/or children in more than 25%of its Floor Area(which shall include one-half of all adjacent aisle space). (Balance of this page intentionally left blank) • • E-8 y executed a lease, sublease or other agreement for occupancy in the Shopping Center, or a contract for the purchase of a parcel within the Shopping Center ... (b)any tenant or occupant of the Shopping Center that derives less than 20% of its Gross Sales from the sale of photographic portraits, (c) any existing or future tenant or occupant occupying more than 10,000 square feet of the Shopping Center, or(d) any of the"Outlots"shown on the Site Plan. Paradise Bakery Landlord agrees that during the time that Cutch, Inc. is the Tenant under the terms of this Lease• E-7 • Incidental Use shall be entitled to occupy a minimum of 150 square feet of Floor Area, and with respect to a tenant or user occupying twenty thousand (20,000) square feet or E-5 C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 7. Tenant hereby acknowledges Tenant's acceptance of possession of the Premises and agrees that Landlord has fully complied with Landlord's covenants and obligations under the Lease. 8. Tenant acknowledges that all Rent is payable to Landlord at the following address, unless further noticed: 9. This Memorandum may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF,Landlord and Tenant have executed this Memorandum as of the day and year first above written. LANDLORD: 168TH AND DODGE, L.P., a Nebraska limited partnership By: RED Village Pointe, LLC, a Missouri limited liability company, Manager By: E&R Holdings, LLC, an Arizona limited liability company,Managing Member By: Michael L. Ebert, Manager TENANT: BRIXCO, INC., a Nebraska corporation By: Its: F-2 ment that Landlord has fully complied with Landlord's covenants and obligations. C. The Commencement Date and such other dates have been determined and, accordingly, the parties desire to enter into this Memorandum. D. Unless otherwise provided herein, all capitalized words and terms in this Memorandum shall have the same meanings ascribed to such words and terms in the Lease. NOW THEREFORE,in consideration of the mutual covenants and agreements hereinafter set forth,and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. The Delivery Date is . 2. The Commencement Date is 3. The Floor Area of the Premises is square feet. 4. Tenant shall• exercise its right to the first Option Term, if at all, 'before , subject to the conditions and limitations set forth in of the Lease. 5. Tenant shall exercise its right to the second Option Term, if at all, before , subject to the conditions and limitations set forth in of the Lease. 6. The date on which the initial Term of the Lease shall expire, unless such Term is extended by Tenant as provided in the Lease, is F-1 rs Landlord will refrain from leasing any space in the portion of the Shopping Center depicted as [Buildings B, 0 and Q on the Site Plan] to any ... tenant or occupant which tenant or occupant operates as a retail store displaying and/or selling apparel and footwear for infants,toddlers and/or children in more than 25%of its Floor Area(which shall include one-half of all adjacent aisle space). (Balance of this page intentionally left blank) • • E-8 y executed a lease, sublease or other agreement for occupancy in the Shopping Center, or a contract for the purchase of a parcel within the Shopping Center ... (b)any tenant or occupant of the Shopping Center that derives less than 20% of its Gross Sales from the sale of photographic portraits, (c) any existing or future tenant or occupant occupying more than 10,000 square feet of the Shopping Center, or(d) any of the"Outlots"shown on the Site Plan. Paradise Bakery Landlord agrees that during the time that Cutch, Inc. is the Tenant under the terms of this Lease• E-7 • Incidental Use shall be entitled to occupy a minimum of 150 square feet of Floor Area, and with respect to a tenant or user occupying twenty thousand (20,000) square feet or E-5 C-I-4 objectionable to Landlord are established,conducted or carried out against Tenant, its employees, agents, contractors or subcontractors in or about the Premises or Shopping Center, Tenant shall C-I-3 Regulations and the Lease, Tenant shall use reasonable and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 EXHIBIT G FORM OF LEASE GUARANTY LEASE GUARANTY In order to induce168th and Dodge, L.P., a Nebraska limited partnership, its successors and assigns, ("Landlord")to enter into that certain Lease Agreement dated ,2009, (the "Lease") between Landlord and Brixco, Inc., a Nebraska corporation, ("Tenant"), and in consideration of the benefits inuring to the undersigned (the "Guarantor") under said Lease, the receipt and sufficiency of which are represented by the Guarantor to Landlord to be sufficient and adequate, the Guarantor hereby unconditionally guarantees the performance of all of Tenant's obligations under the Lease, including,without limitation,the payment of rental as provided therein. This Guaranty shall remain in full force throughout the original lease term and any renewals thereof and any extension or renewal hereinafter agreed upon by Tenant and Landlord. . Guarantor hereby waives notice of acceptance of this Guaranty agreement and all other notices in connection herewith or in connection with the liabilities,obligations and duties guaranteed hereby, including notices to it of default by Tenant under the Lease, and hereby waives diligence, presentment,protest and suit on the part of Landlord in the enforcement of any liability,obligation or duty guaranteed hereby. Guarantor further agrees that Landlord shall not be first or concurrently required to enforce against Tenant or any other person, any liability, obligation or duty guaranteed hereby before seeking enforcement thereof against Guarantor. The liability of Guarantor shall not be affected by any indulgence,compromise,settlement,or variation of terms which may be extended to Tenant by Landlord, or agreed upon by Landlord or Tenant, and shall not be affected by any assignment or sublease by Tenant of its interest in the Lease,nor shall the liability of the Guarantor be affected by the insolvency, bankruptcy (voluntary or involuntary), or reorganization of Tenant, nor by the voluntary or involuntary liquidation,sale or other disposition of all or substantially all of the assets of Tenant or by action of Landlord, including but not limited to any assignment,pledge,conveyance or transfer of the Lease. Landlord and Tenant,without notice to or consent by Guarantor, may at any time or times enter into such modifications,extensions,amendments,or other covenants respecting the Lease as they may deem appropriate and Guarantor shall not be released thereby, but shall continue to be fully liable for the performance of all obligations and duties of Tenant under the Lease as so modified, extended or amended. Guarantor further agrees: (1)to indemnify, defend and hold Landlord harmless from and against any claims, damages, expenses or losses, including to the extent permitted by law, the reasonable fees of an attorney, resulting from or arising out of any breach of the Lease or any term of the Lease by Tenant or by reason of Tenant's failure to perform any of its obligations thereunder; and(2)to the extent permitted by law,to pay any costs or expenses,including the reasonable fees of an attorney, incurred by Landlord in enforcing this Guaranty or the Lease. The Guarantor acknowledges that Landlord will or may assign its rights under the Lease to anyone as security for a loan to be made by such institutional investor to Landlord OR FOR ANY OTHER REASON,and as long as any indebtedness of Landlord shall be outstanding AND/OR such assignment of the Lease shall exist,*such lender or any assignee shall be entitled to bring any suit, action or proceeding against the undersigned for the enforcement of any provision of this Guaranty and it shall not be necessary in any such suit,action or proceeding to make Landlord a party thereto. This Guaranty may not be modified or amended without the prior written consent of such assignee of Landlord's interest in the Lease and any attempted modification or amendment without such consent shall be G-1 le and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 void. This Guaranty shall be binding upon Guarantor, his heirs, legal representatives, successors • and assigns, and shall inure to the benefit of Landlord and its successors and assigns. This Guaranty shall be governed by and construed and enforced in accordance with the laws of the State of Nebraska. If there is more than one Guarantor,the liability of each Guarantor shall be joint and several. Anything in this Guaranty or in the Lease to the contrary notwithstanding, if, as of the date ("Release Date")sixty(60)full calendar months following the Commencement Date(a)no Event of Default has occurred under the Lease, (b) Guarantor has not been in default of the covenants, , agreements and obligations hereunder, (c)Tenant has provided Landlord a balance sheet prepared in accordance with generally accepted accounting principles, consistently applied and certified by an officer of Tenant, for Lease Years 2 and 3 of the Term evidencing that Tenant's cash and cash equivalents for such Lease Years exceeded Tenant's current and long-term liabilities for such Lease Years, and(d)Tenant deposited with Landlord an additional Security Deposit of Twenty-Five Thousand and 00/100 Dollars ($25,000.00) then, from and after the Release Date, Guarantor's liability arising from and after the Release Date shall expire and this Guaranty shall be of no further force or effect; provided, however, if as of the Release Date, an Event of Default shall have occurred or Guarantor has been in default of the covenants,agreements and obligations hereunder or under the Lease,then (a)the Guaranty shall continue in full force and effect, and (b) Guarantor shall remain liable for any liability arising before the Release Date. IN WITNESS WHEREOF,Guarantor has caused this instrument to be executed this day of , 200_. "GUARANTOR" Dan Matuszek, an individual residing in Elkhorn, Nebraska Address: 5222 No. 193r° Street Elkhorn, Nebraska 68022 SSN: Date Executed: Kerry Matuszek, an individual residing in Elkhom, Nebraska Address: 5222 No. 193rd Street Elkhorn, Nebraska 68022 SSN: Date Executed: G-2 sent by Guarantor, may at any time or times enter into such modifications,extensions,amendments,or other covenants respecting the Lease as they may deem appropriate and Guarantor shall not be released thereby, but shall continue to be fully liable for the performance of all obligations and duties of Tenant under the Lease as so modified, extended or amended. Guarantor further agrees: (1)to indemnify, defend and hold Landlord harmless from and against any claims, damages, expenses or losses, including to the extent permitted by law, the reasonable fees of an attorney, resulting from or arising out of any breach of the Lease or any term of the Lease by Tenant or by reason of Tenant's failure to perform any of its obligations thereunder; and(2)to the extent permitted by law,to pay any costs or expenses,including the reasonable fees of an attorney, incurred by Landlord in enforcing this Guaranty or the Lease. The Guarantor acknowledges that Landlord will or may assign its rights under the Lease to anyone as security for a loan to be made by such institutional investor to Landlord OR FOR ANY OTHER REASON,and as long as any indebtedness of Landlord shall be outstanding AND/OR such assignment of the Lease shall exist,*such lender or any assignee shall be entitled to bring any suit, action or proceeding against the undersigned for the enforcement of any provision of this Guaranty and it shall not be necessary in any such suit,action or proceeding to make Landlord a party thereto. This Guaranty may not be modified or amended without the prior written consent of such assignee of Landlord's interest in the Lease and any attempted modification or amendment without such consent shall be G-1 le and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 EXHIBIT H PROHIBITED USES The Premises shall not be used in whole or in part for any of the purposes set forth in this. Exhibit H. The uses of the Premises shall be consistent with and complimentary to uses by the other tenants of the Shopping Center as an upscale shopping center and, unless otherwise approved by Landlord in its sole discretion,Tenant shall limit the use of its Premises to the description set forth in the Lease. None of the following uses or operations, in addition to the restrictions set forth in the Lease and the exhibits and schedules attached thereto, shall be conducted or permitted on or with respect to all or any part of the Premises: a. Any public or private nuisance. b. Any noise or sound that is objectionable due to intermittence, beat, frequency, shrillness or loudness; and vibrations that can be felt outside of a premises. c. Any obnoxious odor or noxious odor that can be smelled outside of the premises. d. Any excessive quantity of dust, dirt, or fly ash; provided, however, this prohibition shall not preclude the sale of soils, fertilizers, or other garden materials or building materials in containers if incident to the operation of a home improvement or other similar store. e. Any fire, explosion or other damaging or dangerous hazard, including the storage, display or sale of explosives or fireworks. f. Any assembly, manufacture, distillation, refining, smelting, agriculture industrial, drilling or mining operations. g. Any mobile home or trailer court, labor camp, junkyard, mortuary, stock yard or animal raising. Notwithstanding the foregoing, pet shops shall be permitted. h. Any drilling for and/or removal of subsurface substances. i. Any dumping of garbage or refuse, other than in enclosed receptacles intended for such purpose. j. Any automobile, truck, trailer or recreational vehicle sales, rental, leasing or body and fender repair operation. k. Any pawn shop flea market and/or swap meet. 1. Any massage parlor,adult book shop, movie house or other establishment selling or exhibiting pornographic materials or other pornographic use; provided, however, that such restrictions shall not preclude the(i)showing of films in any first rate motion picture theater operated in the Shopping Center,so long as such motion picture theater does not show any picture that has received an "X-rating" from the Motion Picture Association of America or any successor to the Motion Picture Association of America which rates motion pictures, or any other pictures that are considered pornographic by the City of Omaha, and(ii)sale or rental of adult books, magazines or H-1 losses, including to the extent permitted by law, the reasonable fees of an attorney, resulting from or arising out of any breach of the Lease or any term of the Lease by Tenant or by reason of Tenant's failure to perform any of its obligations thereunder; and(2)to the extent permitted by law,to pay any costs or expenses,including the reasonable fees of an attorney, incurred by Landlord in enforcing this Guaranty or the Lease. The Guarantor acknowledges that Landlord will or may assign its rights under the Lease to anyone as security for a loan to be made by such institutional investor to Landlord OR FOR ANY OTHER REASON,and as long as any indebtedness of Landlord shall be outstanding AND/OR such assignment of the Lease shall exist,*such lender or any assignee shall be entitled to bring any suit, action or proceeding against the undersigned for the enforcement of any provision of this Guaranty and it shall not be necessary in any such suit,action or proceeding to make Landlord a party thereto. This Guaranty may not be modified or amended without the prior written consent of such assignee of Landlord's interest in the Lease and any attempted modification or amendment without such consent shall be G-1 le and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 { r l videos as an incidental part of the business of a general purpose bookstore normally found in a first class shopping center. m. Any gas or service station or automobile service facility or car-washing establishment. n. Any tattoo parlor or any establishment selling drug related paraphernalia. o. Any residential use other than temporary, elderly care facility or nursing home. p. The sale of alcoholic beverages shall not be permitted within two hundred(200)feet of the Designated Premises shown on the Site Plan attached as Exhibit A. q. Any abortion clinic or drug rehabilitation clinic. r. Any sales within an Outside Sales Area unless approved by Landlord. s. a bowling alley; a video or amusement arcade (other than as an incidental use); a movie theatre within five hundred(500)feet of the Designated Premises(other than a movie theater operating in Building A shown on the Site Plan; a fitness center, gymnasium, aerobics studio or . weightlifting center within five hundred (500)feet of the Designated Premises;a restaurant adjacent to the Designated Premises; a carnival or amusement park; storage (other than as an incidental use); a commercial laundry or dry cleaning plant; a laundromat;a veterinarian or veterinary hospital (other than as an incidental use); a mortuary or funeral establishment;the sale of coffins or caskets; or a shooting gallery. H-2 , refining, smelting, agriculture industrial, drilling or mining operations. g. Any mobile home or trailer court, labor camp, junkyard, mortuary, stock yard or animal raising. Notwithstanding the foregoing, pet shops shall be permitted. h. Any drilling for and/or removal of subsurface substances. i. Any dumping of garbage or refuse, other than in enclosed receptacles intended for such purpose. j. Any automobile, truck, trailer or recreational vehicle sales, rental, leasing or body and fender repair operation. k. Any pawn shop flea market and/or swap meet. 1. Any massage parlor,adult book shop, movie house or other establishment selling or exhibiting pornographic materials or other pornographic use; provided, however, that such restrictions shall not preclude the(i)showing of films in any first rate motion picture theater operated in the Shopping Center,so long as such motion picture theater does not show any picture that has received an "X-rating" from the Motion Picture Association of America or any successor to the Motion Picture Association of America which rates motion pictures, or any other pictures that are considered pornographic by the City of Omaha, and(ii)sale or rental of adult books, magazines or H-1 losses, including to the extent permitted by law, the reasonable fees of an attorney, resulting from or arising out of any breach of the Lease or any term of the Lease by Tenant or by reason of Tenant's failure to perform any of its obligations thereunder; and(2)to the extent permitted by law,to pay any costs or expenses,including the reasonable fees of an attorney, incurred by Landlord in enforcing this Guaranty or the Lease. The Guarantor acknowledges that Landlord will or may assign its rights under the Lease to anyone as security for a loan to be made by such institutional investor to Landlord OR FOR ANY OTHER REASON,and as long as any indebtedness of Landlord shall be outstanding AND/OR such assignment of the Lease shall exist,*such lender or any assignee shall be entitled to bring any suit, action or proceeding against the undersigned for the enforcement of any provision of this Guaranty and it shall not be necessary in any such suit,action or proceeding to make Landlord a party thereto. This Guaranty may not be modified or amended without the prior written consent of such assignee of Landlord's interest in the Lease and any attempted modification or amendment without such consent shall be G-1 le and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 PLANNING DEPARTMENT REPORT DATE: APRIL 12, 2010 DUE DATE: APRIL 15, 2010 CITY COUNCIL HRG APRIL 27,2010 LOCATION: 255 NORTH 170TH STREET LEGAL DESCRIPTION: ADDITION OF AN AREA APPROX. 131' X 31' TO THE NORTH APPLICANT: BRIXCO, INC.,DBA "BRIX WINE & SPIRITS EMPORIUM" REQUESTED LICENSE OR ACTION: ADDITION TO THEIR PRESENT CLASS "C" LIQUOR LICENSE LOCATION NEW LOCATION(X)NEW OWNERSHIP ( ) TYPE OF FACILITY: LIQUOR STORE THIS REQUEST DOES 0 DOES NOT(X) PERTAIN TO AN OUTSIDE AREA IF SIDEWALK CAFE: R-O-W-LEASE PERMITS OBTAINED THIS PROPERTY IS ( X ) IS NOT ( ) WITHIN OMAHA'S CORPORATE LIMITS (If not,do not proceed-Notify the City Clerk's Office and return this form) ANNEXATION DATE: ORDINANCE NO. (Only if within last 24 months) M EXISTING ZONING: 1 -1 U EXITING LAND USE: L i Q U D R ST D 4Z ADJACENTAANDJ USE A ZONING: V M Il NORTH:RTH: ��A I L 15E-0 �q'rN d- &,'ON _ 1" l t X D S� ` � SOUTH: (f G-7 R I p M A L t_ / ? ) X.-ED,� �t U s — �� V EAST: CCANe EN? SIOQg J6AS r �1—/`�)XED USC N-I l) WEST: 5HTPP. I /G L' ,EN `E1: - 1" i ) XGi7 Jse - 1" 1 L) PARKING STALLS PROVIDED: L 6 —7 EXISTING USE DOES DOES NOT( )COMPLY WITH ZONING REGULATIONS PLUMBING FIXTURES PROVIDED: WOMEN'S s T D o L S MEN'S Z � 4 ► Nat.s 2 5Toot...S DATE SUBJECT PROPERTY WAS POSTED: — t 4-4 I (Rule#7) DISTANCE OF PROPOSED LICENSE TO ANY SCHOOL,CHURCH,OR CITY PARK: fJ DISTANCE OF PROPOSED LICENSE TO ANY EXISTING LICENSE: 6' K (State Law) DISTANCE OF PROPOSED LICENSE TO ANY CHURCH C K SCHOOL 0 K HOSPITAL O 14 HOME FOR THE AGED,INDIGENT OR VETERANS 0 14 COLLEGE OR UNIVERSITY 42 14 4 (5 .2acv (Authorized Signature) (Date) ional vehicle sales, rental, leasing or body and fender repair operation. k. Any pawn shop flea market and/or swap meet. 1. Any massage parlor,adult book shop, movie house or other establishment selling or exhibiting pornographic materials or other pornographic use; provided, however, that such restrictions shall not preclude the(i)showing of films in any first rate motion picture theater operated in the Shopping Center,so long as such motion picture theater does not show any picture that has received an "X-rating" from the Motion Picture Association of America or any successor to the Motion Picture Association of America which rates motion pictures, or any other pictures that are considered pornographic by the City of Omaha, and(ii)sale or rental of adult books, magazines or H-1 losses, including to the extent permitted by law, the reasonable fees of an attorney, resulting from or arising out of any breach of the Lease or any term of the Lease by Tenant or by reason of Tenant's failure to perform any of its obligations thereunder; and(2)to the extent permitted by law,to pay any costs or expenses,including the reasonable fees of an attorney, incurred by Landlord in enforcing this Guaranty or the Lease. The Guarantor acknowledges that Landlord will or may assign its rights under the Lease to anyone as security for a loan to be made by such institutional investor to Landlord OR FOR ANY OTHER REASON,and as long as any indebtedness of Landlord shall be outstanding AND/OR such assignment of the Lease shall exist,*such lender or any assignee shall be entitled to bring any suit, action or proceeding against the undersigned for the enforcement of any provision of this Guaranty and it shall not be necessary in any such suit,action or proceeding to make Landlord a party thereto. This Guaranty may not be modified or amended without the prior written consent of such assignee of Landlord's interest in the Lease and any attempted modification or amendment without such consent shall be G-1 le and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 OMAHA, k City of Omaha, We6ras&a �� \\�� ', ,A.?° _ 1819 Farnam —Sue C it L 1 2grAtT1 I 74i' Omaha, Nebraska 68183-0112 0 } � Buster Brown (402) 444-5550 ti' City Clerk• FAX (402) 444-5263 oR'TED FEBR�r�� April 13, 2010 Brixco, Inc. Application for an addition to your present Class Dba "Breix Wine& Spirits Emporium" "C" Liquor License location of an area approx. 225 North 170th Street 131' x 31' to the north Omaha, NE 68116 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 April 27, 2010 . 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, .410 dor Buster Brown City Clerk BJB:clj l vehicle sales, rental, leasing or body and fender repair operation. k. Any pawn shop flea market and/or swap meet. 1. Any massage parlor,adult book shop, movie house or other establishment selling or exhibiting pornographic materials or other pornographic use; provided, however, that such restrictions shall not preclude the(i)showing of films in any first rate motion picture theater operated in the Shopping Center,so long as such motion picture theater does not show any picture that has received an "X-rating" from the Motion Picture Association of America or any successor to the Motion Picture Association of America which rates motion pictures, or any other pictures that are considered pornographic by the City of Omaha, and(ii)sale or rental of adult books, magazines or H-1 losses, including to the extent permitted by law, the reasonable fees of an attorney, resulting from or arising out of any breach of the Lease or any term of the Lease by Tenant or by reason of Tenant's failure to perform any of its obligations thereunder; and(2)to the extent permitted by law,to pay any costs or expenses,including the reasonable fees of an attorney, incurred by Landlord in enforcing this Guaranty or the Lease. The Guarantor acknowledges that Landlord will or may assign its rights under the Lease to anyone as security for a loan to be made by such institutional investor to Landlord OR FOR ANY OTHER REASON,and as long as any indebtedness of Landlord shall be outstanding AND/OR such assignment of the Lease shall exist,*such lender or any assignee shall be entitled to bring any suit, action or proceeding against the undersigned for the enforcement of any provision of this Guaranty and it shall not be necessary in any such suit,action or proceeding to make Landlord a party thereto. This Guaranty may not be modified or amended without the prior written consent of such assignee of Landlord's interest in the Lease and any attempted modification or amendment without such consent shall be G-1 le and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 City of Omaha, Webras&a �' °�� 1819 Farnam — Suite LC 1 z q--fQ; 1 r Omaha, Nebraska 68183-0112 0 4,. .` �' Buster Brown (402) 444-5550 1 �' City Clerk FAX (402) 444-5263 o '��D FEBRv��`� April 13, 2010 Mike Kelley, Attorney Application for an addition to the present Class "C" Kelley& Jerram PC Liquor License location for Brixco, Inc., dba"Brix 7134 Pacific Street Wine & Spirits Emporium", 225 North 170th Street Omaha, NE 68106 Dear Liquor License Applicant Attorney: This letter is notification that a hearing before the Omaha City Council on your application for liquor license has been set for April 27, 2010 . 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, 4/7, door Buster Brown City Clerk BJB:clj or Buster Brown City Clerk BJB:clj l vehicle sales, rental, leasing or body and fender repair operation. k. Any pawn shop flea market and/or swap meet. 1. Any massage parlor,adult book shop, movie house or other establishment selling or exhibiting pornographic materials or other pornographic use; provided, however, that such restrictions shall not preclude the(i)showing of films in any first rate motion picture theater operated in the Shopping Center,so long as such motion picture theater does not show any picture that has received an "X-rating" from the Motion Picture Association of America or any successor to the Motion Picture Association of America which rates motion pictures, or any other pictures that are considered pornographic by the City of Omaha, and(ii)sale or rental of adult books, magazines or H-1 losses, including to the extent permitted by law, the reasonable fees of an attorney, resulting from or arising out of any breach of the Lease or any term of the Lease by Tenant or by reason of Tenant's failure to perform any of its obligations thereunder; and(2)to the extent permitted by law,to pay any costs or expenses,including the reasonable fees of an attorney, incurred by Landlord in enforcing this Guaranty or the Lease. The Guarantor acknowledges that Landlord will or may assign its rights under the Lease to anyone as security for a loan to be made by such institutional investor to Landlord OR FOR ANY OTHER REASON,and as long as any indebtedness of Landlord shall be outstanding AND/OR such assignment of the Lease shall exist,*such lender or any assignee shall be entitled to bring any suit, action or proceeding against the undersigned for the enforcement of any provision of this Guaranty and it shall not be necessary in any such suit,action or proceeding to make Landlord a party thereto. This Guaranty may not be modified or amended without the prior written consent of such assignee of Landlord's interest in the Lease and any attempted modification or amendment without such consent shall be G-1 le and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 /( //6 -/09if/t e 7 NOTICE OF LIQUOR LICENSE APPLICATION This notice is to inform you that BRIXCO, INC. DBA "BRIX WINE & SPIRITS EMPORIUM" has applied for an ADDITION TO THEIR PRESENT CLASS "C" LIQUOR LICENSE LOCATION [On and Off Sale beer,wine and liquor] TO ADD AN AREA APPROX 131' X 31' TO THE NORTH located at 225 NORTH 170TH STREET The Omaha City Council will hold a public hearing regarding this application on Tuesday, APRIL 27, 2010 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 REQUESTS FOR SIGN-LANGUAGE INTERPRETERS (SIGNERS), REQUIRE A MINIMUM OF 48 HOURS. ADVANCE NOTICE. IF ALTERNATIVE FORMATS ARE NEEDED, REQUESTS REQUIRE A MINIMUM OF 72 HOURS ADVANCE NOTICE. IF YOU NEED ACCOMODATIONS, PLEASE NOTIFY BUSTER BROWN,CITY CLERK,AT 444-5557. il 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, 4/7, door Buster Brown City Clerk BJB:clj or Buster Brown City Clerk BJB:clj l vehicle sales, rental, leasing or body and fender repair operation. k. Any pawn shop flea market and/or swap meet. 1. Any massage parlor,adult book shop, movie house or other establishment selling or exhibiting pornographic materials or other pornographic use; provided, however, that such restrictions shall not preclude the(i)showing of films in any first rate motion picture theater operated in the Shopping Center,so long as such motion picture theater does not show any picture that has received an "X-rating" from the Motion Picture Association of America or any successor to the Motion Picture Association of America which rates motion pictures, or any other pictures that are considered pornographic by the City of Omaha, and(ii)sale or rental of adult books, magazines or H-1 losses, including to the extent permitted by law, the reasonable fees of an attorney, resulting from or arising out of any breach of the Lease or any term of the Lease by Tenant or by reason of Tenant's failure to perform any of its obligations thereunder; and(2)to the extent permitted by law,to pay any costs or expenses,including the reasonable fees of an attorney, incurred by Landlord in enforcing this Guaranty or the Lease. The Guarantor acknowledges that Landlord will or may assign its rights under the Lease to anyone as security for a loan to be made by such institutional investor to Landlord OR FOR ANY OTHER REASON,and as long as any indebtedness of Landlord shall be outstanding AND/OR such assignment of the Lease shall exist,*such lender or any assignee shall be entitled to bring any suit, action or proceeding against the undersigned for the enforcement of any provision of this Guaranty and it shall not be necessary in any such suit,action or proceeding to make Landlord a party thereto. This Guaranty may not be modified or amended without the prior written consent of such assignee of Landlord's interest in the Lease and any attempted modification or amendment without such consent shall be G-1 le and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 CO eii ► ab i � w �jcco = p a �� • � �� r' •Coo „.\ v C P- w �• • �� c, o C7 ° o C" o' " P '-6149• or D: 05 t tt.I' Pc s-a L ,,..,' n to t ,i ,,,. t \ c, CD '-',) cp 'G.: 1-,• 0 \A -P.. p ;:-.;• cA E 4 N ip ° CA •CA -r- ,''_F' • (D 1 • to to cn D-6 the 8-10 parking spots in the parking lot adjacent to the Premises. Any work to be performed with respect to the Premises which is not set forth above as part of Landlord's Work, including,without limitation, any work required by any governmental authority, shall be performed by Tenant as a part of Tenant's Work, subject to and in accordance with the conditions set forth in the Lease and Exhibit B-II. B-I-1 04-26-'10 13:51 FROM- 402-397-1293 T-074 130001/0001 F-641 (�("")) I(I E [ L.�..I 1 7134 Pacific St. • Omaha,NE 68105 LINCOLN OFFICE 6 ) ERRAM (402)397-1898•Fax(402)397-1293 625 South 14th St-,Suite B Tax(4 n,NE 66509 1-800-472-4529 (402)474-2303•Fax(402)474-4052 III P.C. T .r f�. www.kefleyandjerram.Cam L L MiSSOURIL,ne. 105 FFICE 656 Bayberry Lane,Suite t05 Attorneys At Law Lees Summit,MO 64064 (316)472-4529 IVIICHAEL A. KELLEY(NE) CHRISTOPHER D. JERRAM (NE,MO,(r Ks) TOM KELLEY(1919-lase) Apiil 26,2010 1 Nebraska Liquor Control Commission Licensing Division r� PO Box 95046 Lincoln NE 68509-5046 = r --c) r> _ 7 F = N.) CD City of Omaha c ; (1 r .- Office of the Cit Clerk - -- 1819 Farnam Street,Ste. LC1 r0 r.: = -"' ,y,-1 n't Omaha,NE 68183 : =. `�:a ::- cn 3. Ni Re: Addition to licensed premises Brixco, Inc. d/bla Brix Wine& Spirits 1 To Whom It May Concern: • Please be advised that the addition to licensed premises includes the outdoor patio area(20' x 33')on the west side of the building. The drawing previously submitted with the application was unclear and appeared to no include the patio. Sincer-. / % 1 , -A0001/ • -> . (C Ii/r Gruilf(i ant to i, . Ke11ey 4/7, door Buster Brown City Clerk BJB:clj or Buster Brown City Clerk BJB:clj l vehicle sales, rental, leasing or body and fender repair operation. k. Any pawn shop flea market and/or swap meet. 1. Any massage parlor,adult book shop, movie house or other establishment selling or exhibiting pornographic materials or other pornographic use; provided, however, that such restrictions shall not preclude the(i)showing of films in any first rate motion picture theater operated in the Shopping Center,so long as such motion picture theater does not show any picture that has received an "X-rating" from the Motion Picture Association of America or any successor to the Motion Picture Association of America which rates motion pictures, or any other pictures that are considered pornographic by the City of Omaha, and(ii)sale or rental of adult books, magazines or H-1 losses, including to the extent permitted by law, the reasonable fees of an attorney, resulting from or arising out of any breach of the Lease or any term of the Lease by Tenant or by reason of Tenant's failure to perform any of its obligations thereunder; and(2)to the extent permitted by law,to pay any costs or expenses,including the reasonable fees of an attorney, incurred by Landlord in enforcing this Guaranty or the Lease. The Guarantor acknowledges that Landlord will or may assign its rights under the Lease to anyone as security for a loan to be made by such institutional investor to Landlord OR FOR ANY OTHER REASON,and as long as any indebtedness of Landlord shall be outstanding AND/OR such assignment of the Lease shall exist,*such lender or any assignee shall be entitled to bring any suit, action or proceeding against the undersigned for the enforcement of any provision of this Guaranty and it shall not be necessary in any such suit,action or proceeding to make Landlord a party thereto. This Guaranty may not be modified or amended without the prior written consent of such assignee of Landlord's interest in the Lease and any attempted modification or amendment without such consent shall be G-1 le and diligent efforts to promptly resolve any odor problems arising from its use of the Premises during the Term. C-I-2 II ion, Landlord may at any time thereafter elect to cancel this Lease for such previous breach.Should Landlord at any time enforce the provision of this Section or any other Section of this Lease curing a Tenant's breach or default 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 Premises, storage costs on any of Tenant's personal property which was in the Premises as of the date of Landlord's gaining possession of the Premises and all reasonable attorneys' fees. In the event that Landlord shall have taken possession of the Premises, Landlord shall have the right to remove from the Premises 29 r 8 ! 7 A § § b / �,q 7 W� y- 2 p 0 . & \ k / a / R 0 CPC? 2 �' 2` % ° N) 0 0 to ° . ttioC Qo . n. = • . 0,00 § § k \ o Co _ w �' on: ,- , � . - ` & 7'1 / �� U o n - _ (it 0 \ / CD ƒ \ \ � C o@ \ » - t I i A )'/ . o o - 2 �'� 2 q CD \ o \ 3 R./ � � equired by any governmental authority, shall be performed by Tenant as a part of Tenant's Work, subject to and in accordance with the conditions set forth in the Lease and Exhibit B-II. B-I-1