RES 2018-0608 - Modern Love requests change of loc of class C liq lic E-MAILED TO NLCC e
of,,,,` ,,' 'HIVED
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STATE OF NEBRASKA
? t i�F,�r 3 �5
:gyp— ^I 3 26 t a` i j I A M 9 5 NEBRASKA LIQUOR CONTROL COMMISSION
d.. •7: :•k. `� Pete Ricketts
''q o •- "•If Governor Hobert B. Rupe
4 Executive Director
,
CITY C( E K 301 Centennial Mall South,5th Floor
P.O.Box 95046
OMAHA, fv'! S IC A Lincoln,Nebraska 68509-5046
Phone(402)471-2571
• Fax(402)471-2814 or(402)471-2374
TRS USER 800 833-7352(TIY)
May 30, 2018 web address:http://www.lcc.ne.gov/
Omaha City Clerk
1819 Farnam Street LC-1
Omaha, Ne 68183-0001
Dear Clerk; •
Please present this request to your board and send us the results of that action.
RE: CHANGE OF LOCATION
LICENSE #: C-110002
LICENSEE:: RITA PARK LLC
TRADE NAME: MODERN LOVE
CURRENT ADDRESS: 1319 S 50TH STREET
CITY/COUNTY: OMAHA/DOUG LAS
CONTACT PERSON: TAMES WALMSLEY
CONTACT PHONE NO: 586-214-7593
EMAIL: MODERNLOVEOMAHA@GMAIL.COM
NEW ADDRESS: 3157 FARNAM STREET SUITE 7113, OMAHA
NEW DESCRIPTION: SINGLE STORY BLDG APPROX 63.5 X 70
APPROVED: DENIED NO RECOMMENDATION
Sincerely,
TRACY BURMEISTER
Licensing Division
NEBRASKA LIQUOR C NTROL COMMISSION
tic 3AY\1 dlp a0) 1K
CC: file � �
to I2:3-/L R
6A)A7:12 ' P .176
Janice M:Wiebusch Robert Batt Bruce Bailey
Commissioner ' Chairman Commissioner
• An Equal Opportunity Employer
APPLICATION FOR CHANGE OF
LOCATION TO LIQUOR LICENSE Office Use
. RECEIVED
NEBRASKA LIQUOR CONTROL COMMISSION
301 CENTENNIAL MALL.OUTH
PO BOX 95046 MAY 1 6 2018
LINCOLN,NE 68509-5046
PHONE:(402)471-2571
FAX:(402)471-2814 NEBRASKA LI UOR
website. www.Icc.nebrnska gov CONTROL CO., MISSION
Application:
• Must include proces '•g fee of$45.00 checks made payable to Neb ka Liquor Control
Commission(NLCC) • you may pay online at www.ne.gov/go CCpavport
• Must include a copy of th lease,deed or purchase agreem• •t showing ownership of new location.
This document must read' the name liquor license is' •ed to,i.e.if license is issued to a
corporation must read corpo to name
• Must include simple hand drawn ketch of new 11 :tion,must include outside dimensions in feet
(not square feet),showing directio orth •
NO BLUE PRINTS
• May include approval from the local gov '• : body;new location shall not be approved unless
endorsed by the local governing body
• Check with your local governing • • • for any dditional requirements that may be necessary in
making this request for addition
• Change of location application • ill not be accepted • moving to a different jurisdiction(i.e.city or
county); a new application '• need to be filed.
LIQUOR LICENSE# I I g 0 d Z LASS TYPE C
LICENSEE NAME R( L . park
L G
TRADE NAME M oc C,r n
CURRENTLY LICENS " I ADDRESS I 3 1 1 S 5.0-th S
CITY 01 I1 1 • ZIP CODE C v I d(n COUNTY ' 0 La
CONTACT PERS I -Sam 5 U V a I rrt S I e-
\i
PHONE NUMB r ' OF CONTACT PERSON (.5 SRO Z 1 LI-1 5 1 3
EMAIL ADD' ESS OF CONTACT PERSON ([. UVe;O ea @ r 16,. . o I
c 1800007149 FORM 111
V/y) REV APR 2015
Page 1 of 3
APPLICATION FOR CHANGE OF
LOCATION TO LIQUOR LICENSE Office Use
. RECEIVED
NEBRASKA LIQUOR CONTROL COMMISSION
301 CENTENNIAL MALL SOUTH
Po Box 95046 MAY 1 6 2018
LINCOLN,NE 68509-504,5
PHONE:(402)471-2571
FAX:(402)471-2814 NEBRASKA LIQUOR
Website: www.lec.nebraskagov CONTROL COMMISSION
Application:
• Must include processing fee of$45.00 checks made payable to Nebraska Liquor Control
Commission(NLCC)or you may pay online at www.ne.gov/go/NLCCpavDort
• Must include a copy of the lease,deed or purchase agreement showing ownership of new location.
This document must read in the name liquor license is issued to,i.e.if license is issued to a
corporation must read corporate name •
• . Must include simple hand drawn sketch of new location,must include outside dimensions in feet
(not square feet),showing direction north
NO BLUE PRINTS
• May include approval from the local governing body;new location shall not be approved unless
endorsed by the local governing body
• Check with your local governing body for any additional requirements that may be necessary in
making this request for addition
• Change of location application will not be accepted if moving to a different jurisdiction(i.e.city or
county); a new application will need to be filed.
LIQUOR LICENSE# I I 0 DO Z CLASS TYPE C
LICENSEE NAME R( L a P r k L L C
TRADE NAME M l0cicrn Lcvc.
CURRENTLY LICENSED ADDRESS 13 11 S 5 Oth 5 `
CITY Uill 2 r l a ZIP CODE U I d(n COUNTY I--)o� La S
CONTACT PERSON, aIYI S [Al a,I n15 led
PHONE NUMBER OF CONTACT PERSON (.5 8(D) 2-1 j -1 5 1q
3
EMAIL ADDRESS OF CONTACT PERSON }Tf rvitY t1 I o U e,U rn a Q j m a f (Y coin
f .31cZ
` I 1800007149 FORM 11
r ‘WO 1800007149
APR 2015
�-li Page 1 of 3
Street Address#1 3 1 5 -1 Fa rn aiii St rwE s 3
Street Address#2 Oma S KlF
Zip Code (0 3 ) 3 l New Premise Phone Number TB ))
Business e-mail address I/l OCI C rn/Q Uft o ni eh 2 e.j ii'l'�I ( • corn
m
MAILING.AI)bRESS FORNEW L(�OCATION tf.Street Address#1 3 ) 5� r aa.rn�m S-rrci S Gu (I 3
•
Street Address#2
City U 1112 h 1c. State NE Zip Code ( 8 ) 3
1. Describe the new building to be licensed
✓ Include sketch of building to be licensed with length&width in feet
✓ If outdoor area to be licensed include on sketch with length&width
✓ Indicate the direction north
I Indicate single story building or give number of floors,how many are Icensed
✓ Indicate if there is a basement to be included in the licensed description
2. Include proof of ownership(must be in the name liquor license is issued under)
✓ deed
I purchase agreement Z O
I lease; date lease expires m a rG 2 15
3. Is the new premise location within 150 feet of a church,school,hospital,home for the aged or
indigent persons or for veterans,their wives,and children;or within 300 feet of a college or university
campus?
YES ❑ NO
If yes,provide name and address of such institution and where it is located in relation to the premises
(Neb.Rev.Stat.53-177)(1).
Must include supplemental Form 134 found at this link: http://www.lcc.ne.gov/formsdiv.html
Frst On hrfan Churck Orhaha 3IN 51-. omaJa NE (ee713
If proposed location is within 300 feet of a campus,the Commission may waive this restriction upon 3 rCC
written approval from the governing body of the college or university.(Rev.Stat.53-177)(1).
Must include supplemental Form 135 found at this link: http://www'.lcc.ne.gov/formsdiv.html
4. : When do you expect on moving into the new location? �) Ul I 2_U )
FORM 111
REV APR 2015
Page 2 of 3
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CITY OF OMAHA THE DAILY RECORD
PUBLIC HEARING NOTICE..
NOTICE IS HEREBY GIVEN that the City. OF OMAh A
Council of the City of Omaha;Nebraska,will
hold public hearings on June 26, 2018, at, LYNDA K. HENNINGSEN, Publisher
2:00 PM in Legislative. Chambers, 18191
• Farnam Street,Omaha,Nebraska 68183.The. - PROOF OF PUBLICATION
purpose of these hearings is to consider
approval of: •
Class"C/K"Liquor License for RCIC,LLC,' UNITED STATES OF AMERICA, .
•
dba "Stock& Bonds", located at 8528 Park The State of Nebraska, SS.
Drive. District of Nebraska,
Class "I" Liquor License for Scout Dry i County of Douglas,
Goods and Trade,Inc.,dba"Scout Dry Goods
and Trade", located at 5018 Underwood , City of Omaha, -
Avenue.'
Change of Location of the Class "C" J.BOYD
Liquor License.for Rita Park, LLC, dba
"Modern Love", 1319 South.50t"Street to be being duly sworn,deposes and says that she is
located at 3157 Farnam Street,Suite 7113.
Anyone interested in these matters or LEGAL EDITOR
desiring to give evidence in support of or in of THE DAILY RECORD, of Omaha, a legal newspaper,printed and
protest against the issuahce of such license ;
should be in attendance at this meeting. published daily in the English language, haying a bona fide paid
Elizabeth Butler,CMC circulation in•Douglas County in excess of 300 copies, printed in
City Clerk Omaha,in said County of Douglas,for more than fifty-two weeks last
City of Omaha • past; that the printed notice hereto attached was published in THE
6-18-18 • DAILY RECORIMfeCligalithr
That said Newspaper during that time was .•: •ublished and
in general circulation in the County of Dou: ,to of Nebraska.
GENERAL NOTARY-State of Nebraska 0.
ELL EN FREEMAN
My Comm.Exp. bD 7ci i,2021 Subscribed in nw
l `�� ce and sworn to before
Publisher's Fee $ t June idgay of
Additional Copies 20
LO.9U
Total $
Ti":: Public in and for Douglas County,
State of Nebraska
(Please publish in the Daily Record on June 18, 2018)
Please charge to General Order NO. 2447 H
CITY OF OMAHA
PUBLIC HEARING NOTICE
NOTICE IS HEREBY GIVEN that the City Council of the City of Omaha, Nebraska, will hold a
public hearing on June 26, 2018, at 2:00 PM in Legislative Chambers, 1819 Farnam Street,
Omaha, Nebraska 68183. The purpose of this hearing is to consider approval of a Change of
Location of the Class "C" Liquor License for Rita Park, LLC, dba "Modern Love", 1319 South
50th Street to be located at 3157 Farnam Street, Suite 7113.
Anyone interested in this matter or desiring to give evidence in support of or in protest against
the issuance of such license should be in attendance at this meeting.
Elizabeth Butler, CMC
City Clerk
City of Omaha
JUNE 26, 2018 —RES # MOTION BY TO GRANT
SECONDED BY
APPROVED
SUPPLEMENTAL FORM FOR APPLICATION RECEIVED
WITHIN 150' OF CHURCH Office Use
NEBRASKA LIQUOR CONTROL COMMISSION MAY 1 6 2018
301 CENTENNIAL MALL SOUTH,5"1 FLOOR
PO BOX 95046
LINCOLN,NE68509-5046 NEBRASKA LIQUOR
PHONE: 71-2814 CONTROL COMMISSION
FAX:(402)471-2814
Website:www.lcc.nebraska.gov
§53-177(2)If a proposed location for the sale at retail of any alcoholic liquor is within 150' of any
church, a license may be issued if the commission gives notice to the affected church and holds a hearing
as prescribed in §53-133
PREMISE INFORMATION
License number(if currently licensed) 1 0 0 0 Z.
Premise Name: 11 0 Qr a C R ik a Park L L)
Address: J 1 5 Ea r n a rrt S- re c t- S a l tic 1113
city: o r h a
CHURCH INFORMATION
Name of Church: Fir 51 LA n i kar l a r C ku rc-k o F O m ai a
Address of Church: 3 1111 H2,rne3 S rca o nl a ha) E S /31
CONTACT PERSON(if available)
Phone Number—(if available) L( 0 2 — 3115 - 3031
DISTANNCE FROM AFOREMENTIONED CHURCH
13 FEET (closest corner of licensed premise to closest corner of church)
Neb Rev Stat§53-177
AMOUNT AND FREQUENCY OF SERVICES HELD AT CHURCH(if known)
FORM 134
REV JULY 2015
PAGE 1
•
As president of the board at the First Unitarian Church of Omaha it is my pleasure to
welcome Modern Love to the mid-town neighborhood. We have several vegan members and
it win be very convenient for us to carry food from your new location to ours for events.
On May 8,2018 the board of directors voted unanimously to support your application for
liquor license. r
Good luck in your new location, •
a644'/ ' 0 •_,
Alan Vovolka
President of the Board
First Unitarian Church of Omaha, .
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I acknowledge under oath that the premises into which such move is made comply in all respects with the
requirements of the act. Neb Rev Stat 03-129
, ignature of Licensee or Officer
State of Nebras 4
County of 1, 0 The foregoing instrument was acknowledged before me this
by 1-C4W\ < C [AiOittvfS e\j
Date name of person acknowledged(individual(s)signing d ment)
Affix Seal
f� 1 �
�� \Y. '+ Chary-WINAo8
General Notary•Stag ort Nebraska
'11• tary Public signature My CommissionSokos'!o''t 2D20
•
•
•
•
•
FORM 111
REV APR 2015
Page 3 of 3
MIDTOWN CROSSING AT TURNER PARK
LEASE .
BY AND BETWEEN
EAST CAMPUS REALTY,LLC
AND
RITA PARK,LLC,DB/A MODERN LOVE
DATED MARCH Z' ,2018
DOCSl1923301.6
LEASE BETWEEN EAST CAMPUS REALTY,LLC
AND RITA PARK,LLC,DB/A MODERN LOVE
GENERAL PROVISIONS OF THE LEASE.
TABLE OF CONTENTS.
ARTICLE 1:. BASIC PROVISIONS 1
ARTICLE 2: ADDITIONAL DEFINITIONS 3
ARTICLE 3: PREMISES, TERM AND COMMENCEMENT DATE 7
ARTICLE 4: RENT 7
4.1 MINIMUM RENT 7
4.2 [INTENTIONALLY OMITTED] 8
4.3 RECORDS 8
4.4 REPORTS 8
4.5 AUDITS 8
4.6[INTENTIONALLY OMITTED] 8
ARTICLE 5: TAXES,LANDLORD'S INSURANCE AND OPERATING COSTS 8
ARTICLE 6: SECURITY DEPOSIT 9
ARTICLE 7: PAYMENT OF RENT, OTHER CHARGES AND PRORATIONS 9
7.1 RENT 9
7.2 LATE CHARGES AND INTEREST 9
7.3 PRORATIONS 10
ARTICLE.8: CONDITION OF PREMISES; OPENING FOR BUSINESS 10
ARTICLE 9: TRADE FIXTURES,ALTERATIONS AND LIENS 10
9.1 APPROVAL 10
9.2 CONDITIONS 10
9.3 PERFORMANCE OF WORK 11.
9.4 LIENS 11
9.5 ELECTRICAL INSTALLATIONS 11
ARTICLE 10:USE AND OPERATING REQUIREMENTS 11
10.1 USE;COMPLIANCE WITH LAWS 11
0OCS/1923301. 6i
10.2 REQUIRED HOURS 12
10.3 REQUIRED OPERATIONS 12
10.4 PRIOR VACATION 12
ARTICLE 11: MARKETING FUND OR MERCHANTS' ASSOCIATION 12
ARTICLE 12: UTILITIES AND SERVICES 13
12.1 UTILITY PAYMENTS 13
12.2 METERING OR PRO RATA ALLOCATIONS 13
12.3 TERMINATION OF UTILITIES 13
ARTICLE 13: MAINTENANCE AND REPAIR OF PREMISES 13
13.1 TENANT MAINTENANCE AND REPAIRS 13
13.2 MAINTENANCE 13
13.3 LANDLORD.MAINTENANCE AND REPAIRS 14
ARTICLE 14: COMMON AREAS 14
14.1 USE OF COMMON AREAS 14
14.2 COMMON AREA MAINTENANCE AND CONTROL 14
ARTICLE 15: INSURANCE, SUBROGATION,AND WAIVER OF CLAIMS 14
15.1 REQUIRED INSURANCE 14
15.2 CERTIFICATES,SUBROGATION AND OTHER MA 11 hRS 15
15.3 WAIVER OF CLAIMS 15
ARTICLE 16: CASUALTY DAMAGE 16
16.1 RESTORATION BY LANDLORD 16
16.2 RESTORATION BY TENANT 16
16.3 ABATEMENT OF RENT 16
16.4 TERMINATION OF LEASE 16
ARTICLE 17: RETURN OF POSSESSION 16
ARTICLE 18: HOLDING OVER 17
ARTICLE 19: ASSIGNMENT, SUBLEASE OR CHANGE OF MANAGEMENT
CONTROL 17
19.1 CONSENT TO TRANSFER 17
19.2 REQUEST FOR APPROVAL 17
DOCS/1923301.6ii
_ _ _
19.3 LANDLORD'S ELECTION 17
19.4 NONCOMPLIANCE 17
19.5 ASSUMPTION OF LEASE 18
19.6 SUCCESSORS;JOINT LIABILITY 18
19.7 PROCESSING CHARGE • 18
19.8 LANDLORD'S CONSIDERATION 18
ARTICLE 20: LANDLORD'S REMEDIES 19
20.1 DEFAULT 19
20.2 REMEDIES 19
20.3 MITIGATION OF DAMAGES 20
20.4 RELETTING 20
20.5 COLLECTION OF RENT AND ACCELERATION 20
20.6 L,AINTDLORD'S CURE OF TENANT DEFAULTS 20
20.7 BAD RENT CHECKS 21
20.8 OTHER MATTERS 21
ARTICLE 21: LANDLORD'S LIABILITY 21
ARTICLE 22: PROPERTY REMOVAL 21
22.1 TENANT'S PROPERTY 21
22.2 LANDLORD'S PROPERTY • 22
ARTICLE 23: LANDLORD'S LIEN,WAIVER AND SECURITY AGREEMENT 22
23.1 LANDLORD'S LIEN 22
23,2 OPTIONAL WAIVER 22
23.3 NON-WAIVABLE SECURITY INTEREST 22
ARTICLE 24: EMINENT DOMAIN 23
24.1 EFFECTS OF CONDEMNATION 23
24.2 AWARDS 23
ARTICLE 25: SALE AND MORTGAGE OF THE PREMISES 23
25.1 MORTGAGE 23
25.2 SALE OF PREMISES 24
25.3 ESTOPPEL CERTIFICATES 24
25.4 QUIET POSSESSION 24
DOCS/1923301.6iii
ARTICLE 26: INDEMNIFICATION 24
ARTICLE 27: NOTICES AND SERVICE 24
27.1 RECEIPT OF NOTICE 24
27.2 CONSENT TO SERVICE 25
ARTICLE 28: TIME AND UNAVOIDABLE DELAY 25
28.1 FORCE MAJEURE 25
28.2 TIMELY PERFORMANCE 25
ARTICLE 29: SAFETY AND SECURITY DEVICES, SERVICES AND PROORAMS 25
ARTICLE 30: ACCESS TO PREMISES; ALTERATIONS • 25
30.1 ACCESS TO PREMISES 25
30.2 ALTERATIONS AND IMPROVEMENTS 26
ARTICLE 31: HAZARDOUS SUBSTANCES 26
ARTICLE 32: RULES 27
ARTICLE 33: PERSONAL PROPERTY TAXES 27
•
ARTICLE 34: AMERICANS WITH DISABILITIES ACT 27
ARTICLE 35: REAL ESTATE LEASING COMMISSIONS 27
ARTICLE 36: RELOCATION OF PREMISES 28
ARTICLE 37: PARKING 28
ARTICLE 38: PATRIOT ACT 29
ARTICLE 39: INTERPRETATION AND CONSTRUCTION 29
39.1 REASONABLE DEFINED 29
39.2 WAIVER 29
39.3 No ACCORD AND SATISFACTION 29
39.4 SEVERABILITY 29
39.5 SURVIVAL OF TENANT'S OBLIGATIONS 30
39.6 No PARTNERSHIP 30
39.7 GOVERNING LAW AND VENTUE 30
39.8 NON-BINDING EFFECTS AND AMENDMENTS 30
39.9 HEADINGS 30
DOCS/1923301. 61V
•
39.10 ENTIRE AGREEMENT;AMENDMENTS 30
39.11 INTEGRATION 30
39.12 WAIVER OF JURY TRIAL 30
39.13 DECLARATION 31
39.14 DEVELOPMENT MATTERS • 31
39.15 GUARANTY 31
39.16 FINANCIAL STATEMENTS 31
39.17 EXHIBITS 31
39.18 COUNTERPARTS 8
Attachments
Special Provisions Rider
Exhibit A—Site Plan
Exhibit B—Construction Exhibit
Exhibit C—Rules
Exhibit D—Exclusives
Exhibit E—Prohibited Uses
Exhibit F—Guaranty of Lease
Exhibit G—Existing FF&E
Schedule 1 ACH Authorization Form
DOCS/1923301.6v
RETAIL LEASE
Sit
THIS RETAIL LEASE("Lease")is entered into this Z i day of March,2018,by and between East Campus
Realty, LLC, a Nebraska limited liability company ("Landlord"), and Rita Park, LLC, a Nebraska limited liability
company,d/b/a Modern Love("Tenant").
ARTICLE 1: BASIC PROVISIONS
1.1. CENTER: Midtown Crossing at Turner Park in Omaha,Nebraska.
1.2. TENANT: Trade Name:Modgnp Love i��
Fed.Tax I.D.: /�(�
Home Office Address:3157 Famam Street,Suite 7113,Omaha,Nebraska
1.3. PREMISES: Building 7 Space 13, with the address of 3157 Farnam Street, Suite 7113, Omaha,
Nebraska, which is approximately 3,930 square feet of Gross Rentable Area which is
comprised of:(a)that certain portion of the Premises to the east of the stairwell consisting
of approximately 2,830 square feet("Main Premises");and(b)that certain portion of the
Premises west stairwell and comprised of approximately 1,100 square feet
("Additional Space").
Subject to the Election to Expand (set forth in the Special Provisions Rider), Base Rent
(defined below) and Tenant's Proportionate Share (defined below) shall be calculated
based on the Main Premises only. Should Tenant exercise the Election to Expand,then
Base Rent and Tenant's Proportionate Share shall be calculated based on the entire
Premises (Main Premises and the Additional Space together). Upon Landlord demising
the Additional Space from the Main Premises, the Additional Space shall thereafter no
longer be considered part of the Premises for purposes of this Lease.
1.4. TERM: A. Length: Seven(7)Lease Years,as defined in Section 2.18.
B. Commencement Date: The earlier to occur of the following dates: (a) the
Delivery Date (defined below); and (b) September 1, 2018; provided, however, in no
instance shall the Commencement Date occur earlier than March 1,2018.
C. Rent Commencement Date: The date one hundred twenty (120) days
following the Commencement Date.
D. Expiration Date: The date seven (7) Lease Years following the
Commencement Date,unless sooner terminated or extended pursuant to the terms of this
Lease.
E. Extension Option(s): One(1)five(5)year option,at the then prevailing market
rates,as set forth in the Special Provisions Rider,so long as Tenant is not in default of
this Lease.
DOCS/1923301.6 1
1.5. RENT: Minimum Rent*:
(See Article 4)
Period Per S4.Ft.Amount Monthly Amount Annual Amount
Rent Commencement
Date to expiration of
Lease Year 1 $15.00 $3,537.50 $42,450.00
Lease Year 2 $15.45 $3,643.63 $43,723.56,
Lease Year 3 $15.91 $3,752.11 $45,024.32
Lease Year 4 $16.39 $3,865.31 $46,383.72
Lease Year 5 $16.88 $3,980.87 S47,770.44
Lease Year 6 $17.39 $4,101.14 $49,213.68-
Lease Year 7 to $17.91 $4,223.78 $50,685.36
Expiration Date
*Subject to the terms and conditions"set forth in Section 1.3 above and the Special
Provisions Rider
1.6. JNITIAL $3,537.50 as non-interest bearing Security Deposit(See Article 6).
RECEIPTED
SUMS:.
1.7. PERMITTED. Tenant shall use the Premises for the operation of a vegan restaurant and for no other use
USE: or purpose,subject to the terms and conditions hereinafter set forth,including,without.
limitation,Section 10.1.
1.8. MARKETING Dues or assessments imposed pursuant to Article 11 are referred to in this Lease as the
FUND: "Marketing Fund Charge." Tenant's initial Marketing Fund Charge for the calendar
year in which the Rent Commencement Date occurs shall be an amount equal to $1.00
per square foot of Gross Rentable Area in the Premises,subject to the terms of Article 11.
1.9. GUARANTOR(S): Isa Chandra Moskowitz and James Walmsley
1.10. BASELINE Monday:closed
HOURS: Tuesday:5 p.m.—9 p.m.
Wednesday:5 p.m.—9 p.m.
Thursday:5 p.m.—9 p.m.
Friday:5 p.m.—10 p.m.
Saturday:4 p.m.—10 p.m.
Sunday:4 p.m.—9 p.m.,
1.11. RENT East Campus Realty,LLC,c/o Mutual of Omaha Insurance Company,Mutual of Omaha
PAYMENT Plaza, Omaha,Nebraska 68175, Attn: Executive Vice President, Corporate Services, or
ADDRESS: to such other address as Landlord may from time to time designate in writing.
1.12. RENT East Campus Realty, LLC, or such other party as Landlord may from time to time
PAYABLE TO: designate in writing.
1.13. INSURANCE Commercial General Liability $1,000,000.00 per occurrence, $2,000,000.00 aggregate,
• LLMITS: and $4,000,000.00 umbrella/excess coverage, subject to adjustment pursuant to Section
15.1.
The foregoing provisions shall be interpreted and applied in accordance with the other provisions of this Lease
set forth below. The terms in this Article 1, and the terms defined in Article 2, shall have the meanings specified
therefor, herein or therein,when used as capitalized terms in other provisions of this Lease, otherwise the terms in this
Lease and the Exhibits attached hereto and made a part hereof, shall have the meanings specified therefor, herein or
DOCSf I923301.'62
•
therein,when used as capitalized terms in other provisions of this Lease or in the Exhibits attached hereto and made a
part hereof.
ARTICLE 2: ADDITIONAL DEFINITIONS
2.1 "ADA"shall have the meaning set forth in Article 34.
2.2 "Anchor Tenant Premises"shall mean the premises comprised of the hotel space and the premises
leased to.Prairie Life Midtown Fitness,LLC.
2.3 "Assignment"shall have the meaning set forth in Section.19.1. •
2.4 "Building"shall mean the building in the Center in which the Premises are located. When used in
the plural tense, `Buildings" refers to buildings in the Center, and references to Buildings by
number refer to the Buildings as numbered on the site plan attached hereto as Exhibit A.
2.5 "Center" shall mean the shopping center,business park, commercial district or other designated
property owned or operated by Landlord within geographic areas defined by Landlord from time
to time, generally depicted on Exhibit A attached hereto, including (without limitation) all.
buildings, improvements and parking facilities (including any off-site or satellite parking
facilities),private drives,sidewalks and alleys,but excluding residential apartment and residential
condominium units and common areas and common elements which exclusively serve residential
apartment or residential condominium units, if any,public streets, rights-of-way, utility lines,
easements and public parks adjacent to the Center. The Center may also include an offsite
roadway to the north. The Center shall also include any and all fountains, statuary, monument
markers and entryways, towers, kiosks, murals and art works (if any), together with all private
courtyards,lawns,median strips and parks within geographic areas defined by Landlord from time
-to time.
2.6 "Common Areas"shall mean all areas of the Center which are now or hereafter made available by
Landlord from time to time for the general use or benefit of Landlord,Tenant,other tenants at the.
Center,other parties to whom the right to use the Common Areas has been or is hereafter granted,
and their employees and invitees,as such areas currently exist and as they may be changed from
time to time. Without limiting the generality of the foregoing,the Common Areas may include,as
designated by Landlord from time to time,any parking areas and structures(whether in tiers or at,
above or below grade),mall enclosures and roofs covering Center buildings,entrances,sidewalks,
streets or roadways,passageways,concourses,courts,arcades,service corridors,loading platforms
and truck docks,delivery areas, escalators and elevators, ramps, stairs, landscaped and vacant
areas, public bathrooms, information and telephone booths, directory signs and equipment,
common lighting facilities, drainage areas, lounges and shelters, package pick-up stations,
drinking fountains, public comfort and first aid stations,public meeting rooms, auditoriums,bus
stops,taxi stands,and all furniture,decorations,fixtures,improvements, Systems and Equipment,.
and other facilities,located in or serving any of the foregoing,except to the extent reserved for use
by one or more designated tenants.
2.7 "Customer Parking Fees"shall have the meaning set forth in Article 37.
2.8 "Declaration"shall have the meaning set forth in Section 39.13
2.9 "Delivery Date" shall be the date on which Landlord delivers possession of the Premises to
Tenant, by notice or otherwise, with all of Landlord's Work (as defined in Exhibit B)
"substantially complete" (i.e., complete to the extent that Tenant may commence Tenant's Work
(as defined in Exhibit B) in the Premises without substantial interference from Landlord or its
contractors).
DOCS/1923301.63
2.10 "Default"shall have the meaning set forth in Section 20.1.
2.11 "Default Rate" shall mean eighteen percent (18%) per annuni from the original due date and
continuing until all delinquent sums are paid in full..
2.12 "Gross Rentable Area"of the Premises shall mean the aggregate main floor areas measured to the
extreme_exterior faces of the exterior walls,but only to the interior face of interior Building walls
such as stair well and elevator walls that serve the entire Building, and only to the centerline of •
any common party walls between two leasable areas,excluding the mezzanines and upper floors,
if any,with no reductions or exclusions for stairways,elevators,escalators,support columns,floor
openings,interior partitions or other improvements or equipment of any kind. Any changes in the
Gross Rentable Area of the Premises occurring during any calendar month shall become effective
on the first day of the following month. The Gross Rentable Area of the Center shall mean all
similar areas within the Center owned by Landlord and,constructed for occupancy bytenants,and
the mezzanine and upper floor retail areas in Building 6 currently operated by Marcus Theatres,
but will not include any outdoor patio area provided for the exclusive use of a tenant under the
terms of a lease of interior building space in the Center and not included in the calculation the
Gross Rentable Area leased to a tenant under the terms of a tenant's lease. The Gross Rentable
Area of the Center is subject to change in.the event that Landlord expands or reduces the size of
the Center. Prior to the Commencement Date,Tenant may,at its option,engage,at Tenant's sole
cost and expense, an independent certified architect or surveyor to measure the actual Gross
Rentable Area of the Premises. Tenant's architect or surveyor shall determine the Gross Rentable
Area by measuring from the outside of any exterior walls to the center of any interior demising
walls. If the architect's or surveyor's measurement of the Gross Rentable Area (which
measurement must be certified in writing to Landlord)differs by more than two percent(2%)from
the Gross Rentable Area set forth in Section 1.3 of this Lease, the Rent,and any other charges
determined on the basis of the rentable square footage of the Premises, Tenant's Proportionate.
Share and the amount of the Tenant Improvement Allowance, if any, shall be adjusted
accordingly, subject to Landlord's right to verify Tenant's measurement. Landlord shall have the
right to remeasure the Premises to verify the accuracy of Tenant's measurement within sixty(60)
days after Tenant notifies Landlord that the Gross Rentable Area shown in Section 1 3 of this
Lease differs from the Gross Rentable Area determined by Tenant's architect or surveyor by more
than two percent (2%). In the event that Landlord's remeasurement differs from the
remeasurement done by Tenant, then Landlord and Tenant shall do the following: (i).reach an
agreement as to the measurement which will control within thirty(30)days after Landlord notifies
Tenant of the results of Landlord's measurement(and the Rent and any other charges determined
on the basis of the rentable square footage of the Premises,Tenant's Proportionate Share and the
amount of the Tenant Improvement Allowance, if any, shall be adjusted accordingly); or (ii)
appoint, within twenty (20) days after the expiration of such 30 day period, an independent
certified architect or surveyor mutually agreeable to both parties ("Final Measurer") who shall
remeasure the Gross Rentable Area of the Premises. The cost of the remeasurement by the Final
Measurer shall be shared equally between Landlord and Tenant,and the Rentable Area determined
by the Final Measurer shall control(and the Rent and any other charges determined on the basis of
the rentable square footage of the Premises, Tenant's Proportionate Share and the amount of the
Tenant Improvement Allowance, if any,_shall be adjusted accordingly). In no event will the
remeasurement process herein provided delay or affect the length of the Term or any obligations
of the parties as set forth in this Lease. If Tenant does not exercise the remeasure right as herein
provided, the Gross Rentable Area of the Premises as shown in Section 1.3 of this Lease shall
control,unless the parties shall agree otherwise in writing.
2.13 "Gross Sales" shall mean the entire amount of the actual sale price, whether for cash, credit or
otherwise, of all sales of goods and services and all other income and receipts whatsoever of all
business conducted at,on or from the Premises.
2.14 "Hazardous Substance"shall have the meaning set forth in Article 31.
DOCS/1923301.64
2.15 "1-IVAC"shall mean heating,ventilating and air-conditioning.
2.16 "Landlord's Insurance" shall mean insurance maintained by Landlord applicable to the Center,
which may include, without limitation, commercial liability insurance for personal injury, death,
property damage, defamation and false arrest, "all risk" insurance on the Center, including,
without limitation, earthquake, flood, boiler and rent loss coverage, automobile, worker •
compensation and employer liability insurance.
2.17 "Law"or"Laws"shall mean all federal,state,county and local governmental and municipal laws,
statutes, ordinances, rules, regulations, codes, decrees, orders and other such requirements,
applicable equitable remedies and decisions by courts in cases where such decisions are binding
precedents in the state in which the Center is located,and decisions of federal courts applying the
Laws of such state,at the time in question.
2.18 "Lease Year" shall mean a period of twelve (12) full, consecutive calendar months,. except as
provided below. 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.
2.19 "Lender" shall mean the holder of any mortgage, deed of trust or security interest at the time in
question,and where a ground lease is used as a security device,such term shall refer to the ground
lessor.
2.20 "Minimum Rent"shall have the meaning set forth in Section 4.1.
2.21 "Operating Costs" shall mean all expenses, costs and amounts of every kind and nature which
Landlord shall pay during any Lease Year in connection with the maintenance, repair,
replacement,management and operation of the Center, including all facilities, improvements and
areas determined by Landlord from time to time to comprise the Center.
2.22 "Parking Fee"shall have the meaning set forth in.Article 37.
2.23 "Parking Garage"shall have the meaning set forth in Article 37.
2.24 "Required Hours"shall have the meaning set forth in Section 10.2.
2.25 "Rent"shall have the meaning set forth in Section 7.1.
2.26 "Rider"shall mean the Special Provisions Rider attached to this Lease and made an integral part of
this Lease.
2.27 "Rules"shall have the meaning set forth in Article'32.
2.28 "Sublease"shall have the meaning set forth in Section 19.1.
2.29 "Systems and Equipment"shall mean any plant,machinery,transformers,ducts,cables,wires and
other equipment,facilities and systems designed to supply light,heat,ventilation,air conditioning
and humidity or any other services or utilities, or comprising or serving as any component or
portion of any electrical, gas, steam; plumbing, water, sewer, sprinkler, communications, alarm,
security or fire/life/safety systems or equipment, or any other mechanical, electrical, electronic,
computer or other systems or equipment for the Premises or Center,as applicable.
DOCS0923301.65
2.30 "Taxes" shall mean users fees, taxes, assessments, special assessments, substitution taxes, gross
receipts taxes, taxes on rents and other governmental charges, whether levied by federal, state,
county; Municipal or any other taxing authority which are charged against the Center, or are
charged to the Center and other property and are allocated to the Center pursuant to a recorded
instrument containing easements,restrictions and/or covenants,or by Landlord pursuant to Article
5,,real property,street lights,fixtures,personal property,rents on the right or privilege of owning
or leasing real estate or collecting rents thereon, and any other taxes„assessments and fees
attributable to.the Center or its operation, whether now or hereafter assessed, and any,fees and
other costs associated with any action taken by Landlord. to protest any such fees, taxes,
assessments or charges,it being understood that Tenant shall not contest Taxes.In addition to the
foregoing"Takes"shall also include,without limitation;
(i)general ad valorem real estate taxes levied against the-Center. General ad valorem real estate
taxes which become delinquent in a calendar year will be considered to be current for that calendar
year and for the first and'last calendar years of,the Term shall be,prorated on a daily basis for
purposes of calculating Tenant's Proportionate Share;
(ii) special assessments imposed upon the Premises or Center by a governmental authority for
improvements directly or indirectly benefiting the Premises or Center, including, without
limitation, assessments for utility improvements serving the Premises or Center, transportation
assessments, impact fees for public improvements; and benefit assessments for such things as
flood control, street and sidewalk improvements, and refuse and sewer treatment (excluding,
• however, other capital expenditures relating to new improvements, the net effect of which is to
finance or construct other commercial.developments for or on behalf of Landlord, or which
expand or increase the Gross Rentable Area of the Center, and sewer hook-up fees or similar
charges assessed to one specific user);
•
(iii)taxes which may,or are required to;be paid in installments over a period longer than one(1)
year and shall be deemed paid in installments over the maximum period permitted by the,taxing
authority, with Tenant's obligation to pay Tenant's'Proportionate Share of such taxes for any one
(I)tax fiscal year applying only to those installments which actually become due and payable(i.e.,
failing which,payment of the same would become delinquent),together with the interest charged
thereon by the taxing authority, during that same fiscal year, excluding, however, any portion of
taxes or installments thereof which actually become due and payable during any period prior or
subsequent to the Term;and
(iv)substitution taxes,including,without limitation,any fee,charge or levy which is'enacted on a
Substitution Basis (as defined below), following a change in a method of taxation or assessment
related to real property, or the granting of tax benefits or reductions for the property, including;
without limitation, payments in lieu, of taxes following approval of plans for tax increment
financing,urban redevelopment or other tax benefits (a change in such methods may refer to an
event or combination of events by which real estate taxes,assessments or valuations are."frozen"
(i.e., no longer increased), and/or reduced or"rolled back," and/or future increases are limited in
amount, by statute). If, following such change and as a result thereof, there shall be levied,
assessed or imposed: (a) a tax on the rents received from the Premises; (b) a license fee or other
tax measured by or based wholly or partially upon the Premises or any portion thereof, and which
taxes are expressly declared by the taxing legislation, legislative history or taxing authority to be
imposed as a result of the foregoing limitations on real estate taxes, or in substitution therefor,
then such resultant enactment shall be on a"Substitution Basis"
2.31 "Tenant's Financial Statements"shall have the meaning set forth in Section 39.16.
2.32 [Intentionally Omitted]
2.33 "Tenant's Proportionate Share" shall be a fraction the numerator of which is the Gross Rentable
Area of the Premises set forth in Article l (or as adjusted pursuant to Section 2.12) and the
DOCS/I923301. 66
•
denominator of which is the total Gross Rentable Area of the Center, excluding the Gross
Rentable Area of any Anchor Tenant Premises. Tenant's Proportionate Share is subject to change
in the event that Landlord expands or reduces the size of the Anchor Tenant Premises or the
Center. Landlord may elect, from time to time, to have Operating.Costs, Taxes or Landlord's
Insurance or Uncontrollable Operating Costs.for any portion of the Center calculated and paid
separately from the remainder of the Center. Upon such election by Landlord, Tenant's
Proportionate Share of Operating Costs, Taxes or Landlord's Insurance or Uncontrollable
Operating Costs shall be calculated without reference to any excluded portion of the Center
(notwithstanding that Tenant's Proportionate Share for other purposes hereunder may then be
calculated on a basis which includes such excluded portion).
2.34 "Tenant's Records"shall have the meaning set forth in Section 4.3.
2.35 "Tenant's Work"shall have the meaning set forth in Exhibit B.
2.36 "Term"shall have the meaning set forth in Article 3.
2.37 "Unavoidable Delays" shall mean delays due to strikes, lockouts, labor troubles, inability to
procure labor or materials or reasonable substitutes therefor, failure of power, governmental
requirements, restrictions or Laws, fire or,other casualty damage, war or civil disorder, or other
causes beyond the reasonable control .of the party delayed; provided, however, Unavoidable
Delays hereunder shall not include delays resulting from changes in economic or market
conditions,or financial or internal problems of the parties or problems that can be satisfied by the
payment of money.
2.38 "Work"shall have the meaning set forth in Section 9.1.
ARTICLE 3: PREMISES.FF&E.TERM AND COMMENCEMENT DATE
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises for the Term set
. forth in Article I (the "Term") commencing on the Commencement Date and ending on the Expiration Date set
forth in Article 1,unless sooner terminated as provided herein,subject to the provisions herein contained. Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord the Premises, including all existing fixtures,
furnishings, equipment and other items set forth on Exhibit G,attached hereto (collectively,the"Existing FF&E")
for the Term. If Landlord delays delivering possession of the Premises or substantial completion of Landlord's
Work, if any, this Lease shall not be void or voidable and Landlord shall have no liability for loss or damage
resulting therefrom. In such case, the Commencement Date shall be postponed for a period equal to the delay,
except to the extent that such delays arise from the acts or omissions of Tenant or Tenant's employees, agents or
contractors. If the Commencement Date is postponed,the Rent and other obligations of Tenant, and the Term and
initial Lease Year hereunder shall all commence on the Rent Commencement Date as postponed,and the Expiration
Date shall be extended so that the Term of this Lease is as stated in Section 1.4. Landlord and Tenant shall confirm
in writing any adjustment to the Commencement Date upon written request by either party. Tenant hereby
acknowledges and agrees that THE EXISTING FF&E IS USED AND TENANT SHALL TAKE THE EXISTING
FF&E IN ITS 'AS IS, WHERE IS' CONDITION. LANDLORD MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESS OR
IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, MERCHANTABILITY,
CONDITION OR QUALITY OF THE EXISTING FF&E. TENANT SPECIFICALLY WAIVES ALL RIGHT TO
MAKE CLAIM AGAINST LANDLORD FOR BREACH OF ANY WARRANTY OF ANY KIND
WHATSOEVER RELATED TO THE EXISTING FF&E.
ARTICLE 4: RENT
4.1. Minimum Rent. Tenant shall pay Landlord Minimum Rent each month in equal installments as set forth
in Section 1.5., commencing on the Rent Commencement Date and on or before the first day of each month
throughout the Term of this Lease(prorated on a daily basis for any partial month).
DOCS/1923301. 67
4.2 [Intentionally Omitted]
4.3 Records. Tenant shall keep accurate records ("Tenant's Records") of all Gross Sales each day of the
Lease Term, which records and all supporting documentation shall be verifiable under generally accepted
accounting practices,consistently applied,and shall include(but not be limited to)such documentation as:(a)daily
cash register tapes or copies of numbered sales slips; (b)daily sales reports; (c)journals of original entry,including
the sales journal,purchase journal, cash receipts journal, cash disbursements journal and general ledger; (d) bank
statements and deposit slips; (e)local, state and/or federal sales and income tax returns; (f)certified statements of
annual sales;(g)annual profit and loss statements;(h)originals of all mail and telephone orders taken at or delivered
to the Premises;(i)settlement and gross receipt reports and sheets of transactions with subtenants,concessionaires,
licensees,contractors and other occupants of the Premises;and(j)other records which would normally be examined
by an accountant pursuant to generally:accepted accounting and auditing standards in performing audits of Tenant's
Gross Sales: For purposes of establishing the records required to be kept pursuant to this Lease,Tenant agrees to
install in the Premises and to'consistently use cash registers or point-of-sale computers for all transactions in order to
produce daily cash register tapes and/or other verifiable documentation of sales. Tenant further agrees to retain and
preserve all of the above described records for at least three(3).years following the expiration of the Lease Years to
which they relate,or, if any audit is required or a controversy should arise between the parties,until such audit or
controversy is terminated, even though such retention period may be after the expiration of the Term or earlier
termination of this Lease.
4.4 Reports. Tenant also shall submit electronically to Landlord, or to Landlord's designated third party
vendor, on or before the tenth (10th) day of each month, a statement showing in reasonable detail the amount of
Gross Sales during the preceding month. Tenant shall further electronically submit an annual statement within sixty
(60) days after the end of each Lease Year. Said statement shall show the total amount of Gross Sales for such
Lease Year. If any of the foregoing described statements are not submitted to Landlord when due,Tenant shall pay
as additional Rent the sum of One Hundred and 00/100 Dollars($100.00)per day to be assessed from the due date
of the statement to the date the statement is submitted to Landlord.
4.5 Audits. Upon forty-eight(48)hours prior written notice, but not more than once in any Lease Year and
once within one(1)year following termination or expiration of this Lease,Landlord may cause an audit of Tenant's
business on the Premises by an accountant selected by Landlord for any Lease Year(s).
4.6. [Intentionally Omitted]
ARTICLE 5: TAXES,LANDLORD'S INSURANCE AND OPERATING COSTS
In addition to the Minimum Rent, Tenant agrees that, commencing on the Rent.Commencement Date,
Tenant shall pay Tenant's Proportionate Share of Operating Costs,Taxes,Landlord's Insurance and "Uncontrollable
Operating Costs" (taking into account any contribution to Operating Costs, Taxes, Landlord's Insurance or
Uncontrollable Operating Costs made by the operator of any Anchor Tenant Premises)prorated on a daily basis for
any partial Lease Year. For purposes hereof,"Uncontrollable Operating Costs" shall mean costs associated with
snow and ice removal and related activities. Tenant's Proportionate Share of Operating Costs, Taxes, Landlord's
Insurance and Uncontrollable Operating Costs shall be estimated at the beginning of the Term and annually
thereafter within ninety(90)days after the end of each calendar year. Tenant shall pay Tenant's Proportionate Share
of Operating.Costs,Taxes,Landlord's Insurance and Uncontrollable Operating Costs in equal monthly installments
on or before the first day of each month throughout the Lease Term; provided, that the amount of installments for
Operating Costs, Taxes,Landlord's Insurance.and Uncontrollable Operating Costs may be changed upon not less
than thirty (30)days'notice if Landlord's estimate thereof changes. Within ninety(90) days after the end of each
calendar year,Landlord shall determine the actual amount of Operating Costs, Taxes, Landlord's Insurance and
Uncontrollable Operating Costs for the previous calendar year(and Tenant's Proportionate Share thereof)and shall
furnish an itemized statement of such costs in writing to Tenant. If the relevant taxing authority levies Taxes against
the Center which are combined with other taxes(including fees,assessments and other charges of the type included
in the definition of Taxes in Section 2.30)levied against the other portions of the Midtown Crossing at Turner Park
mixed-use project of which the Center is a part, Landlord shall allocate an equitable portion of the total combined
tax levy to the Center, and Landlord's determination shall be conclusive provided that it is made in good faith and
not arbitrarily. If the estimated monthly payments made by Tenant for the previous calendar year exceed the actual
DOCS/1923301.68
amount of Tenant's Proportionate Share of Operating Costs, Taxes, Landlord's Insurance, and Uncontrollable
Operating Costs, Landlord shall rebate the excess to Tenant; but if the actual amount of Tenant's Proportionate
Share of Operating Costs, Taxes, Landlords Insurance and Uncontrollable Operating Costs exceeds the estimated
monthly payments made by Tenant for the previous calendar year,Tenant shall pay the difference within thirty(30).
days after the annual adjustment billing by Landlord. Tenant's obligation to pay Tenant's Proportionate Share of
Operating Costs,Taxes,Landlord's Insurance and Uncontrollable Operating Costs in excess of those estimated shall
survive the expiration of this Lease,together with Tenant's obligation to pay all other accrued sums due hereunder.
ARTICLE 6: SECURITY DEPOSIT
Concurrently with the execution of this Lease,Tenant shall deliver to Landlord the Security Deposit(as set
forth in Section 1.6) as security for the prompt and complete performance of all of the terms, covenants and
agreements contained in this Lease. Landlord shall retain the Security Deposit without interest to Tenant,and may
commingle it with other accounts, and under no circumstances shall the Security Deposit be construed•or held as a
trust of any kind. In the event Tenant defaults under this Lease,Landlord may,at its option,expend,apply or retain
the whole or any part of the Security Deposit for the payment of any sum of money required to be paid by Tenant
under this Lease,including,but not limited to,Minimum Rent,Operating Costs,utilities,audit fees,late charges,the
costs of repairs or clean-up costs for damage to or cleaning of the Premises, damages, repairs, Marketing Fund
Charges, amounts required to discharge any construction, mechanic's or materialman's lien or any other obligation.
that may become due and payable by Tenant under the terms of this Lease. If all or any part of the.Security Deposit
is so applied,Tenant also shall deposit with Landlord, upon demand,a sum sufficient to replenish the amount of the
Security Deposit to the full original amount. If all or any part of the Security Deposit shall be applied to cure a
default on the part of Tenant, such application shall not constitute a waiver of such default or deprive Landlord of
any other remedy that may be available on account of such default,nor shall the amount so applied be considered
liquidated damages to any extent. In the event Tenant shall fully and faithfully comply with all of the covenants and
conditions of this Lease, then the Security Deposit shall be returned to Tenant,within ninety (90) days after
expiration or earlier termination of this Lease in compliance with this Lease and upon written request by Tenant.
Tenant acknowledges that the Security Deposit is not a prepayment of Rent or any other charges and that Landlord
shall not be obligated to apply the Security Deposit to any unpaid Rent or charges,but may do so in its discretion.
ARTICLE 7: PAYMENT OF RENT,OTHER CHARGES AND PRORATIONS
7.1 Rent: Minimum Rent,Tenant's Proportionate Share of Uncontrollable Operating Costs, Operating Costs,
Taxes and Landlord's Insurance, the Marketing Fund Charges and any other amounts which Tenant is or becomes
obligated to pay Landlord under this Lease are sometimes herein referred to collectively as"Rent,"and all remedies
applicable to the non-payment of Rent shall be applicable thereto. Rent shall be paid without any prior demand or
notice therefor, and shall in all events be paid without any deduction, recoupment, set-off or counterclaim, and
without relief from any valuation or appraisement laws. Tenant shall pay any rent tax,sales tax,service tax,transfer
tax,value added tax or any other applicable tax on the Rent,utilities or services herein or otherwise respecting this
Lease or any other document entered in connection herewith, to the extent the same are not included in Operating
Costs. Landlord may apply payments received from Tenant to any obligations of Tenant then accrued, without
regard to such obligations as may be designated by Tenant.
Tenant shall submit all payments due hereunder electronically via Automatic Clearing House("ACH")pursuant to
the terms contained in the attached Schedule 1 entitled"ACH Authorization Form"and all Federal Regulations, or
any other means of electronic funds transfer approved by Landlord. In the case of an ACH Transaction being
rejected for Non-Sufficient Funds ("NSF"), Tenant understands that Landlord's Managing Agent (The Lund
Company)may charge an additional fee for each returned NSF in addition to any late charges as provided for herein,
which will be initiated as a separate transaction from the authorized recurring payment.
7.2 Late Charges and Interest. 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,other Rent as described above,or any other amount due from Tenant under this Lease shall not be received by
Landlord when due,then,in addition to the required payment,Tenant shall also pay to Landlord a late charge equal
to five (5%) percent of the amount past due, plus interest from the due date at the Default Rate until payment is
DOCS/1923301. 69
received by Landlord. Acceptance of such late charges and interest payments shall not.be deemed consent by
Landlord to late payments,nor a waiver of Landlord's right to insist upon timely payments at any time,nor a waiver
of any remedies to which Landlord is entitled as a result of the late payment of Rent.
7.3 Prorations. If the Tenn commences on a day other than the first day of a calendar month or ends on a day
other than the last day of a,calendar month,the Minimum Rent,Tenant's Proportionate Share of Operating Costs,
Taxes, Landlord's Insurance and Uncontrollable Operating Costs, Marketing Fund Charge and any other amounts
payable on a monthly basis shall be prorated on a per diem basis for such partial calendar months. If the.Minimum
Rent is scheduled to increase under Article 1 other than on the first day of a calendar month, the amount for such
month shall be prorated on a per diem basis to reflect the number of days of such month.at the then current and
increased-rates,respectively. If the Term commences other than on January 1, or ends other than on December 31,
Tenant's obligations to pay its Proportionate Share of actual Operating Costs, Taxes, Landlord's Insurance and
Uncontrollable Operating Costs,the Marketing Fund Charge and any other amounts payable hereunder for such first
or final calendar years shall be prorated on a per diem basis to reflect the portion of such years included in the Term.
ARTICLE 8: CONDITION OF PREMISES;OPENING FOR BUSINESS
Notwithstanding any other provisions of this Lease,Landlord and Tenant agree to perform their respective
obligations set forth in Exhibit B attached hereto and by this reference incorporated herein (the "Construction
Exhibit"). To the extent any provisions of the Construction Exhibit conflict with the provisions of Article 9 hereof,
the provisions of the Construction Exhibit shall control. Subject to Landlord's compliance with its obligations under
the Construction Exhibit,Tenant agrees to accept the Premises,Center and any Systems and Equipment serving the
Premises on the Delivery Date"as is,"without any agreements,representations,understandings or obligations on the
part of Landlord to perform any alterations,repairs or improvements except as set forth in the Construction Exhibit,
and to open the Premises for business to the.public on or before the Rent Commencement Date,fully in compliance
with all provisions of this Lease, including, without limitation,Article 10. During any period that Tenant shall be
permitted to enter the Premises prior to the Commencement Date,Tenant shall comply with all terms and provisions
of this Lease,except those provisions requiring the payment of Rent.
ARTICLE 9: TRADE FIXTURES,ALTERATIONS AND LIENS
9.1 Approval. Tenant shall not attach any fixtures, equipment or other items to the Premises or make any
additions, changes,alterations or improvements to the Premises or the Systems and Equipment serving the Premises
(all such work referred to collectively herein as the "Work"), without the prior written consent of Landlord which
may be granted or withheld in Landlord's sole discretion. The procedure for obtaining Landlords approval of
Tenant's Initial Work (as defined in the Construction Exhibit) shall be as set forth in the Construction Exhibit.
Notwithstanding the foregoing, Landlord acknowledges that all Existing FF&E shall remain in the Premises for the
use and benefit of Tenant, and that Landlord consents to the continued installation and use of the Existing FF&E,
subject to the terms and conditions of this Lease.
9.2 Conditions. Landlord reserves the right to impose reasonable requirements as a condition of such consent
or otherwise in connection with the Work,including, without limitation, requirements that Tenant: (i) submit for
Landlord's prior written approval detailed plans and specifications prepared by licensed and competent architects
and engineers; (ii) submit for Landlord's prior written approval the names, addresses and background information
concerning all contractors, subcontractors and suppliers; (iii) obtain and post permits, bonds and additional
insurance; (iv) submit contractor, subcontractor and supplier lien waivers; and (v) comply with such other
requirements as Landlord reasonably may impose concerning the manner and times in which such Work shall be
done and other aspects of the Work. If Landlord consents or supervises,or recommends any suppliers,contractors,
architects or engineers,the same shall not be deemed a warranty as to the adequacy of the design,workmanship or
quality of materials,or compliance of the Work with any Laws. Landlord's review of any of the foregoing shall be
for its sole purpose and shall not imply Landlord's review of the same,or obligate Landlord to review the same,for
quality,design,compliance with Laws or other like matters. Accordingly,notwithstanding that any of the foregoing
are reviewed by Landlord or its space planner, architect,engineers and consultants and notwithstanding any advice
or assistance which may be rendered to Tenant by Landlord or Landlord's space planner, architect, engineers and
consultants,Landlord shall have no liability whatsoever in connection therewith and shall not be responsible for any
•
DOCS/1923301.610
•
omissions or errors contained in any ofthe foregoing and Tenant's waiver and indemnity set forth in this Lease shall
specifically apply thereto.
9.3 Performance:of Work. All Work shall be performed (i) in a thoroughly first class, professional and
workmanlike manner; (ii) only with materials that are new, high quality and free of material defects; (iii) in
accordance with plans and specifications approved by Landlord in advance in writing;(iv)not to adversely:affect the
Systems and Equipment, roof, exterior walls, or any other structural element of the Building; (v) diligently to
completion and so as to cause the least possible;interference With other tenants and the operation of the Center, (vi)
in accordance with Landlord's Design Criteria, which has previously been delivered to Tenant, and construction
requirements;and(vii)in compliance with all Laws and other provisions of this Lease,including,without limitation,
the Rules attached hereto as Exhibit C. If Tenant fails to perform the Work as required-herein or the materials
supplied fail to comply herewith or with.the specifications approved by Landlord, and Tenant fails to cure such
failure within forty-eight (48) hours after notice by Landlord (except that notice shall not be required in
emergencies), Landlord shall have the right to stop the Work until such failure is cured (which shall not be,in
limitation.of Landlord's other remedies and shall not serve to abate the Rent or Tenant's.other obligations under this.
Lease).
9.4 Liens. Tenant shall keep the Center; Premises and its interest in this Lease free from any mechanic's,
niaterialman's or similar liens or encumbrances,and any claims therefor,in connection with any Work. Tenant shall
give Landlord notice at least ten(10)days prior to the commencement of any Work(or such additional time as may
be necessary under applicable Law, to afford Landlord the opportunity of posting and recording appropriate notice
of non-responsibility). Tenant shall remove any such claim,lien or encumbrance by bond or otherwise within thirty
(30)days after notice by Landlord. If Tenant fails to do so,Landlord may pay the amount or take such other action
as Landlord deems necessary to remove such claim, lien or encumbrance, without being responsible for
investigating the validity.thereof. The amount so paid and costs incurred by Landlord shall be deemed additional
Rent under this Lease payable upon demand,without limitation as to other remedies available to Landlord. Nothing
contained in this Lease shall authorize Tenant to do any act which shall subject Landlord's title to the Center or
Premises to any such notices, liens or encumbrances, whether claimed by operation of statute or other Law or
express or implied contract. Any claim to a lien or encumbrance upon the Center or Premises arising in connection
with any Work shall be null and void, or at Landlord's option shall attach only against Tenant's interest in the
Premises and shall in all respects be subordinate to Landlord's title to the Center and Premises.
9.5 Electrical Installations. hi the event Tenant installs any electrical equipment or fixtures that overload the
lines in the Premises, Tenant shall, at its own expense, make the changes necessary to comply with'Landlord's
requirements and those of insurance underwriters and applicable local governmental code administrators. Tenant
agrees not to use any electric irons, electric grills or other equipment that contains an electric heating element,
unless such electrical equipment also includes a red pilot light, connected and operated in compliance with
Underwriters'Laboratory specifications.
ARTICLE 10: USE AND OPERATING REQUIREMENTS
10.1 Use; Compliance with Laws. Tenant shall use the Premises only for the purposes specified in Article 1
(and Tenant shall use the Premises for all the purposes specified therein), and for no other purpose whatsoever, .
subject to and in compliance with all other provisions of this Lease,including,without limitation,the Rules attached
as Exhibit C. In addition to the foregoing, Tenant expressly covenants and agrees that it shall not permit any
operation in the Premises which would violate: (a) any of the exclusives or restrictions set forth in Exhibit D
attached hereto and incorporated herein by this reference; or (b) any of the prohibited uses set forth in Exhibit E
attached hereto and incorporated herein by this reference. In connection with Tenant's covenant to not permit any
operation in the Premises which would violate the exclusives, if there is a claim made by a tenant or occupant that
Tenant is operating in violation of such tenant's or occupant's exclusive based upon Tenant's sales or revenue
derived from the Premises,then Tenant agrees that within fifteen(15)days of Landlord's request(which request will
set forth the claimed violation of the exclusive), Tenant shall deliver to Landlord a statement (the "Exclusives
Statement"), which shows Tenant's computation of the amount of revenue derived and sales made from the
Premises with respect to the particular item or service over which the violation of the exclusive is claimed, and
which computation shall be in a form that Landlord is able to demonstrate the amount of cumulative revenue derived
from the Premises for the certain service or sale of the certain item over which the violation of the exclusive is
DOCS/1923301.611
claimed. The results of the Exclusives Statement shall be subject to Landlord's independent verification and Tenant
agrees that the Exclusives Statement May be shared with the tenant or occupant claiming,the violation of its
exclusive. Tenant agrees to cooperate with Landlord and assist Landlord in obtaining any further documentation as
may be required to enable.Landlord to enforce the exclusives. Tenant shall comply with all Laws relating to the
Premises and Tenant's use thereof,including,.without limitation,Laws,if any,requiring the Premises to be closed
on any certain days or hours,health,safety and building codes,and any permit or license requirements.Tenant shall
not dispose of any grease or oils on the Premises or:any other part of the Center other'than in the Grease Trap.
Landlord makes no representation that the Premises are'suitable for Tenant's purposes. No auctions, fire sales,
truckload sales; sidewalk sales, inventory reduction sales, liquidation sales, bankruptcy sales; "going out of
business"sales or sales of similar import may be conducted on or about the Premises except upon Landlord's prior
written consent in each instance.. Tenant Shall not display any signs advertising the foregoing anywhere in or about
the Premises: Tenant shall'not conduct wholesale,factory outlet or warehouse business on the Premises,or operate
as a discount store,or otherwise engage in heavily discounted sales from the Premises. For of this Lease,
"heavily discounted"sales shall mean those advertised or promoted at reductions of greater than fifty percent(50%)
from retail prices. The foregoing restrictions also shall apply to Tenant's creditors. During the Term of this Lease,
Tenant shall not own or Operate,nor shall Tenant permit any entity related to or affiliated with Tenant or Guarantor.
to own or operate any Modern Love or any vegan restaurant or other restaurant of the same or similar nature within
the city limits of the City of Omaha("Radius Area").
10.2 Baseline.Hours. Tenant agrees to continuously operate and conduct its business in one hundred percent
(100%) of the Premises during the Baseline Hours. `Baseline Hours"herein Shall mean those hours established
from time to time by Landlord for the Center in general,or for categories or classes of Center tenants that includes
Tenant, in Landlord's sole discretion, which Required Hours initially shall be as shown in Section 1.10:
Notwithstanding anything to the contrary herein.contained,Tenant shall not be required to.be'open for business on
the following days Easter Day,Memorial Day,Labor Day,Thanksgiving Day and.Christmas Day. If there is more
than one"legal"holiday for any day set forth in the preceding sentence,the day the Center closes,if any,will be the
day which Tenant is not required to'be open, and if the Center is not closed either day, then Tenant shall not be .
required to be open on that day which is observed by the Federal government as the"legal"holiday. If Tenant fails
to open for business on any day on which Tenant is required under this Lease to be open or Tenant's business is'not
conducted during the Required Hours,Tenant shall pay Landlord as additional Rent a charge equal to fifty percent
(50%)of the calculated Rent on a.per diem basis for every day or part thereof that.Tenant shall be in violation of this.
Section 10.2.
10.3 Required Operations. Tenant shall conduct its business at all times in a first-class professional and
businesslike manner consistent-with reputable business standards and practices, and such that a high reputation of
the.Center is developed and enhanced. Tenant shall operate the Premises continuously, actively and diligently in a
good faith manner designed to maximize Gross Sales. Tenant shall keep the Premises adequately staffed with well •
-
trained personnel for efficient first-class service, and, where appropriate,'adequately stocked with new "in season"
merchandise in good condition and displayed in a professional and tasteful manner. Tenant.agrees that storage and
office space in the Premises shall be limited to that necessary for, and used in conjunction with, the business use.
designated in Article 1 to be conducted in the Premises. Sales and services permitted under Article I shall be.
provided only on a retail basis to the general public. Tenant shall not use the Premises for catalogue sales.
10.4 Prior Vacation. In the event that Tenant ceases to operate a business on the Premises for the purpose
authorized herein and as described in this Article 10,or if Tenant surrenders the keys to the Premises,then Landlord
shall have all'rights.and remedies under Article 20 below. In case of any such prior vacation of the Premises,this
Lease shall continue in effect unless or until terminated by express action of Landlord pursuant to Article 20 or until
its Term expires, and Tenant shall remain liable for the payment ofRRent,notwithstanding Landlord's acceptance of
the keys or its attempts to re-let the Premises.
ARTICLE 11: MARKETING FUND OR MERCHANTS'ASSOCIATION
If Landlord at any time during the Lease Term organizes or approves the organization of an association of
merchants or tenants of the Center, Tenant agrees to maintain a membership in said association. Tenant
acknowledges that Landlord has established a marketing fund for the Center and Tenant agrees to actively
participate in and contribute Tenant's Marketing Fund Charge to such marketing fund. Tenant's Marketing Fund
DOCS/1923301.612
Charge for the calendar year in which the Rent Commencement Date occurs is set forth in Section 1.8'above and
each January 1st thereafter,Tenant's Marketing Fund Charge shall increase five percent(5%)(cumulatively)during
the Term. Tenant's Marketing Fund Charge shall also be additional Rent hereunder,and Tenant's failure to.pay the
same when due-shall constitute a default under this Lease, whether payable,directly to Landlord or to a separate
association or marketing fund administrator.
ARTICLE 12: UTILITIES AND SERVICES
12.1 `Utility Payments. Tenant agrees to pay for all electricity, gas, water and other utility services, whether
furnished to the Premises by utility companies or by Landlord. Such utility services (if any) actually furnished by
Landlord shall be billed at rates not exceeding.those charged.by applicable utility companies for the same size meter
serving Tenant;provided that Landlord may allocate such billings on a square-foot basis unless service is separately
metered or submetered.
12.2 Metering or Pro Rata Allocations. Landlord.or Tenant may install separate meters or submeters.on or
about the Premises; or Tenant shall utilize existing separate meters or submeters (if any) already in place; and
Tenant shall pay any'such separately metered utility charges attributable to the 'Premises, including (without
limitation)charges for electricity,gas.and water,directly to the appropriate municipality,utility or service company,
or shall reimburse Landlord for such charges based on submeter readings,
12.3 Termination of Utilities. Landlord shall not in any way be responsible or liable to Tenant,or to any other
party occupying any part of the Premises,for any failure or defect in the supply or character of water,electricity or
any other utility service furnished to the Premises or to the Common Areas (whether furnished by Landlord or by
others), or by reason of any requirement, actor omission of the public utility company serving the Premises, the
Building or the Center with electricity, water or other 'utility service, or because of necessary repairs or
improvements or the lack thereof.
ARTICLE 13: MAINTENANCE AND REPAIR OF PREMISES
13.1 Tenant Maintenance and Repairs. Tenant shall keep the Premises in good working order,,repair and
"condition'(which condition also shall be clean, sanitary, sightly'and free of odors, pests and rodents, and'which
repairs shall include necessary replacements and capital expenditures and compliance with all Laws now or hereafter
adopted), except to the extent provided to the contrary in Article 16 respecting casualty damage. Tenant's
obligations hereunder shall include, but not be limited to, Tenant's trade fixtures and equipment, security gates,
security locks, ceilings, walls, storefront entrances, signs, interior decorations, floor-coverings, wall-coverings,
windows, entry and interior doors,exterior and interior glass,plumbing fixtures, light fixtures and bulbs,keys and
locks, fie extinguisher and fire protection systems, and equipment and lines for water, sewer.(including, when
applicable to the Premises,free flow up to the(common sewer line and common grease trap line),HVAC,electrical,
gas, steam, sprinkler and mechanical facilities, and other Systems and Equipment which serve the Premises
exclusively, whether located within or outside the Premises), and all alterations and improvements to the Premises
(whether installed by Landlord or Tenant) and'the Existing.FF&E. Tenant also shall reimburse Landlord for any
repairs, maintenance and replacements to areas of the Center outside the Premises caused as a result of moving any
furniture,fixtures or other property to or from the Premises,or otherwise caused by Tenant or any other occupant,of
the Premises, or any of their employees, agents, invitees. or contractors. Any repairs or other work by Tenant
hereunder shall be deemed "Work" under Article 9 and shall be subject to all of the requirements thereunder,
including;without limitation,Landlord's priorwritten approval.
13.2 Maintenance. If the Premises are served exclusively by any HVAC units or other Systems or Equipment,
Tenant shall enter annual, written maintenance contracts with competent, licensed and insured contractors
reasonably approved or designated by Landlord. Such contracts shall include, and Tenant shall require that such
contractors provide: (i) inspection, cleaning and testing at least semi-annually for HVAC units and for other
Systems and Equipment(or'more frequently if required by applicable Law or if reasonably required by Landlord);
(ii) any servicing, maintenance,repairs and replacements of filters,belts or other items determined to be necessary
or appropriate as a'result of such inspections and tests, or by the manufacturer's warranty, service manual or
technical bulletins, or othenvise required to ensure proper'and efficient operation, including emergency work; (iii)
all other work as shall be reasonably required by Tenant,Landlord or Landlord's insurance carriers; (iv)a detailed
DOCS11923301.613
record of all services performed; and (v) an annual service report at the end of each calendar year. Tenant shall
provide Landlord with a copy of such annual service reports. Not later than thirty (30) days prior to the
Commencement Date and annually thereafter, Tenant shall provide Landlord with a copy of all maintenance
contracts required hereunder and written evidence reasonably satisfactory to Landlord that the annual fees therefor
have been paid. Such maintenance contracts represent part of Tenant's obligations under this Article and shall not
be deemed to limit Tenant's general obligations to keep any HVAC equipment and other Systems and Equipment
hereunder in good working order,repair and condition as further described in Section 13.1 above.
13..3 Landlord Maintenance and Repairs. Landlord shall keep the roof, foundation,exterior walls other than
the storefront,common utility lines to the point of connection for Tenant,and structural portions of the Premises in
good working order and repair,provided that Tenant shall give Landlord reasonable prior notice of the necessity for
such repairs, and further provided that, subject to the waiver of subrogation set forth in Article 15, if any damage
thereto shall have been caused by any act or omission of, or violation of this Lease by Tenant or any other occupant
of the Premises claiming by, through or under Tenant, or any of their employees, agents or contractors,Landlord
shall perform such repairs as provided above(without limiting Landlord's other remedies therefor) and, subject to
the waiver of subrogation set forth in Article 15 below, Tenant shall reimburse Landlord for the cost and expense
thereof within thirty(30)days after receipt of any invoice.
ARTICLE 14: COMMON AREAS
14.1 Use of Common Areas. Tenant may use the Common Areas to which, and for the purposes for which,
other tenants at the Center are given access during the Term,subject to the following conditions:
(a) The Common Areas shall be used by Tenant and Tenant's employees and invitees on a non-exclusive
basis in common with employees and invitees of Landlord and other tenants and parties to whom the right
to use the Common Areas has been or is hereafter granted.
(b) Tenant shall not directly or indirectly conduct business in the Common Areas or make any use of the
Common Areas which interferes in any way with the use of the Common Areas by other parties.
(c) Tenant's use of the Common Areas shall be subject to the other provisions of this Lease, including
without limitation,the Rules attached hereto as Exhibit C.
(d) Tenant's right to use the Common Areas shall terminate upon the expiration or earlier termination of
this Lease or Tenant's right to possession of the Premises.
14.2 Common Area Maintenance and Control. Landlord shall administer,operate,clean,maintain and repair
the Common Areas. Landlord reserves the right at all times to determine the nature and extent of all Common Areas
and shall have exclusive control and management thereof. Landlord shall have the right to close all or a portion of
the Common Areas to discourage non-customer parking,to prevent a dedication thereof to public use or otherwise to
prevent the acquisition of public rights in such areas. Landlord reserves the right.to use or permit the use of the.
Common Areas for any purpose which, in Landlord's sole opinion, may be in the best interests of the Center,
including,without limitation,promotions,events,exhibits,displays and shows.
ARTICLE 15: INSURANCE,SUBROGATION,AND WAIVER OF CLAIMS
15,1 Required Insurance. Tenant shall maintain during the Term: (i)commercial general liability insurance,
with a contractual liability endorsement covering Tenant's indemnity obligations under this Lease,and with limits of
not less than $1,000,000.00 per occurrence and $2,000,000.00 aggregate; (ii) umbrella/excess coverage liability
insurance of no less than $4,000,000.00 per occurrence and in the aggregate, (iii)workers'compensation insurance,
including employer's liability insurance, as required by statute; (iv)plate glass insurance covering all plate glass.in
the Premises and the storefront therefor; and (v) Special Form property damage insurance covering Tenant's
inventory, personal property, business records, furniture, floor coverings, fixtures and equipment, and all Work
installed by or for Tenant,including but not limited to any Tenant's Initial Work constructed or installed pursuant to
the Construction Exhibit(if any),whether or not paid for out of the Improvement Allowance(if any),for damage or
DOCS/1923301.614
other loss caused by fire or other casualty or cause,including,but not limited to;vandalism and malicious mischief,
theft, explosion, business interruption, and water damage of any type, including sprinkler leakage; bursting and
stoppage of pipes. 'In addition to the foregoing, if alcoholic beverages are sold or served in, from or about the
Premises,Tenant shall maintain Dram Shop and host liquor liability insurance in accordance with Nebraska law:All
insurance required hereunder shall be provided by responsible insurers and have a policyholder rating of at least"A"
and be assigned a-financial category of at least"Class X in the then current edition of Best's Insurance Guide and
shall be licensed in the state of Nebraska. Tenant's property damage insurance shall include full replacement cost
coverage, and the amount shall satisfy any coinsurance requirements under the applicable policy. Tenant's.
insurance shall be primary, and any insurance maintained by Landlord or any other additional insureds hereunder
shall be excess and noncontributory. Landlord shall have the right to reasonably increase the amount or expand the
level of insurance to be maintained by Tenant hereunder from time to time.
During:the Term, Landlord shall maintain property damage insurance covering the Building in which the Premises
are located. Tenant expressly acknowledges that Tenant understands that such insurance maintained by Landlord
will not cover any leasehold improvements installed•at Tenant's expense or any of Tenant's personal property.
During the Term,Landlord shall also maintain commercial general liability insurance covering the Common Areas
in the amounts of not less than $1,000;000.00 per occurrence and $2,000,000.00 in the aggregate, and
umbrella/excess coverage liability insurance of no less than $4,000,000.00 per occurrence and in the aggregate.
Tenant will not be insured under such liability insurance policies. All such insurance shall be maintained with
financially responsible insurers licensed in the State of Nebraska.
15:2 Certificates, Subrogation and Other Matters. Tenant shall provide Landlord with certificates
evidencing the insurance coverage required hereunder(and,with kespect to liability coverage showing Landlord and
others designated by Landlord as additional insureds,and with respect to leasehold improvements showing:Landlord
as an additional insured). Tenant shall provide such certificates prior to the Commencement.Date or the date Tenant
takes possession of the Premises (whichever first.occurs). Tenant shall provide renewal certificates to.Landlord at
least thirty(30) days prior to expiration of such policies. Such certificates shall state that the coverage may not be
changed or cancelled without at least thirty(30) days' prior written notice to Landlord. Each party hereto 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 such loss, cost, damage or expense which
arises from any peril that would be covered by a Special Form replacement cost policy of insurance regardless of the
insurance actually carried by such party,the extent of any recovery thereunder or 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. All
insurance policies carried by either party with respect to its property located within or constituting a part of the
Center or the Premises or with respect to Landlord's or Tenant's respective businesses(which shall include,without
limitation,loss of earnings and loss or damage with respect to Tenant's leasehold interest in the case of Tenant and
loss of rents in the case of Landlord),whether or not required to be carried by this Lease,shall permit the waiving of
any right of recovery on the part of the insured against the other party for any loss or damage to the extent such
rights have been waived by the insured prior to the occurrence of such loss or damage. For the purpose of the
foregoing waiver, the amount of any deductible applicable to any loss or damage shall be deemed covered by the
insured under the insurance policy to which such deductible relates.
15.3 Waiver of Claims. Tenant waives all claims against Landlord for injury or death to persons, damage to
property or to any other interest of Tenant sustained by Tenant or any party claiming through or under Tenant
resulting from (i) any occurrence in or upon the Premises; (ii) leaking of roofs, bursting, stoppage or leaking of
water, gas,sewer or steam pipes or equipment, including sprinklers; (iii) wind, rain,.snow, ice, flooding, freezing,
fire, explosion, earthquake, excessive heat or cold, fire or other casualty; (iv) the Center, Premises, .Systems.or
Equipment being defective, out of repair, or failing; and (v) vandalism, malicious mischief, theft or other acts or
omissions of any other parties,including, without limitation; other,tenants, contractors and invitees at the Center.
Tenant agrees that Tenant's property loss risks shall be borne by Tenant, and.Tenant agrees to look solely to and
seek recovery only from its insurance carriers,if any,in the event of such losses. For purposes of this Section,any
deductible amount shall be treated as though it were recoverable under such policies:
DOCS/1923301.615
ARTICLE 16: CASUALTY DAMAGE
16.1 Restoration by Landlord. If the Premises shall be damaged by fire or other casualty,Landlord shall use
available insurance proceeds to repair the Premises, except that Landlord shall not be required to repair or replace
any of the Exiting FF&E or Tenant's furniture,furnishings,fixtures or equipment,and Landlord's obligations shall
be subject to any governmental requirements or requirements of any Lender and such Lender's right to control,.
apply or Withhold such insurance proceeds. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or its visitors, or injury to Tenant's business resulting in any way from such damage or the repair thereof
Landlord shall notify Tenant Within pine(9)months after the casualty whether or not Landlord intends to restore the
Premises. If Landlord does not provide such written notice, then and in that event, Landlord shall be required to
restore the Premises to the extent required hereby. -
16.2 Restoration by Tenant. If Landlord repairs the Premises as provided herein, Tenant shall repair and
replace Tenant's Work,all items required to be insured by Tenant hereunder,and all other items required to restore
the Premises to the condition required under Article 9 of this Lease. Tenant shall commence such work within ten
(10) days following substantial completion by Landlord of any repairs required by Landlord hereunder and shall
proceed diligently therewith to completion. Tenant's work hereunder shall constitute"Work" under Article 9 and
shall be subject to all of the provisions thereof Tenant mayclose the Premises for business to the extent reasonably
required in connection with such Work.
16.3 Abatement of Rent. Landlord shall allow Tenant a proportionate abatement of Rent from the date.of the
casualty through the date Landlord substantially completes Landlord's repair obligations hereunder(or the date that
Landlord would have substantially completed such repairs,but for delays by Tenant,its agents,employees, invitees,
transferees and contractors),provided such abatement shall(i)apply only to the extent the Premises are untenantable
for the purposes permitted under this Lease and not used by Tenant as a result thereof,based proportionately on the
square footage of the Premises so affected and not used, and (ii) not apply if Tenant or any other occupant of the
Premises,or any of their employees,agents,invitees or contractors caused the damage.
16.4 Termination'of Lease. Notwithstanding the foregoing to the contrary, Landlord may elect to terminate
this Lease,if the Center is damaged by fire or other casualty or causes such that(a)more than twenty-five percent
(25%)of the Premises is affected by the damage,(b)the damage occurs less than one(1)year prior to the end of the
Term, (c) any Lender requires that the insurance proceeds or any portion thereof be applied to the debt (or
terminates.the ground lease, as the case may be), or the damage is not fully covered by Landlord's insurance
policies, or (d) in Landlord's reasonable opinion, the cost of the repairs, alterations, restoration or iinprovement
work would exceed twenty-five percent.(25%) of the replacement value of the Center or of the portion thereof.
owned or ground leased by Landlord (whether or not the Premises are affected). In any such case, Landlord may
terminate this Lease by notice to Tenant within one hundred twenty (120) days after the date of damage (such
termination notice to include a termination date providing at least thirty(30)days for Tenant to vacate the Premises).
Tenant agrees that Landlord's obligation to restore,.and the abatement of Rent provided herein, shall be Tenant's
sole recourse in the event of such damage, and Tenant waives any other rights Tenant may have under any
applicable Law to terminate this Lease by reason of damage to the Premises or Center,except as expressly set forth
herein.
ARTICLE 17: RETURN OF POSSESSION.
At the expiration or earlier termination of this Lease or Tenant's right of possession,Tenant shall surrender
possession of the Premises in broom-clean condition and good repair,free of debris,and otherwise in the condition
required under Article 13, and shall ensure that all signs, movable trade fixtures and personal property have been
removed therefrom and that any damage caused thereby has been repaired, including, without limitation, patching
all holes in the walls so that the walls are in a "paint-ready" condition, capping any electrical wiring and ensuring
that no electrical wiring is exposed. Landlord and Tenant acknowledge and agree that the Existing FF&E shall
remain in the Premises and Tenant shall not be required to remove such Existing FF&E upon vacating the Premises.
All leasehold improvements and other fixtures affixed to the Building or Premises as more particularly described in
Section 22.2 shall be Landlord's property and shall remain,all without compensation,allowance or credit to Tenant.
However, if in connection with any Work after the Tenant's initial Work,Landlord has notified Tenant in writing
(which notice shall be at the time of plan approval if plan approval is required) that Tenant shall be required to
DOCS/1923301.616
remove any leasehold improvements at the end of the Term, then Tenant shall promptly remove such of the
foregoing items as are designated and repair any damage to the Premises caused by such removal. If Tenant shall
fail to perform any repairs or restoration, or fail to remove any items from the Premises as required hereunder,
Landlord may do so,and Tenant shall pay Landlord the cost thereof upon demand. All property removed from the
Premises by Landlord hereunder may be handled, discarded or stored by Landlord at Tenant's expense, and
Landlord shall in no event be responsible for the value,preservation or safekeeping thereof. All such property shall,
at Landlord's option, be conclusively deemed to have been conveYed by Tenant to Landlord in"as is" condition, •
without any warranty, as if by bill of sale, without payment by Landlord. If Landlord arranges for storage,of any
such property,Landlord shall have a lien.against such property for costs incurred in removing and storing the same:
ARTICLE 18: HOLDING OVER
Tenant shall pay Landlord one hundred fifty percent(150%) of the amount of Rent applicable during the
preceding month prorated on a per diem basis for each day Tenant shall retain possession of the Premises or any part
thereof after expiration or earlier termination of this Lease, together with all damages sustained.by Landlord on
account thereof. The foregoing provisions shall not serve as permission for Tenant to hold over,nor serve to extend
the Term (although Tenant shall remain a tenant at sufferance, bound to.comply with all provisions of this Lease
until Tenant vacates the Premises). Landlord shall have the right, at any time after expiration or earlier termination •
of this Lease or Tenant's right to possession, to re-enter and possess the Premises and remove all property and
persons therefrom,and Landlord shall have such other remedies for holdover as may be available to Landlord under
Other provisions of this Lease or applicable Laws.
•
ARTICLE 19: ASSIGNMENT,SUBLEASE OR CHANGE OF MANAGEMENT CONTROL
19.1 Consent to Transfer. Except upon Landlord's written consent in each instance,Tenant shall not directly
or indirectly,voluntarily,by operation of law,or otherwise: (a)sell,assign,encumber,pledge or otherwise transfer
or hypothecate all or any part of this Lease,the Premises or Tenant's leasehold interests hereunder,nor(b)allow or
permit any sale or transfer(including by consolidation,merger or reorganization)of a majority of the voting stock or
management control of Tenant, if Tenant is a corporation or limited liability company;nor(c)allow or permit any
sale or other transfer of controlling general partnership interests in Tenant,if Tenant.is a partnership; pot(d)allow
or permit a change of present controlling executive Management by management contract, license, franchise
agreement or other arrangement(all of the foregoing items(a), (b),(c)and(d)are hereafter collectively referred to
as an "Assignment");nor(e)permit subtenants, concessionaires, licensees or others to occupy all or any portion of
the Premises; nor (f) sublease the Premises or any portion thereof(items (e) and (f) are hereafter collectively
referred to as a"Sublease").
19.2 Request for Approval. If Tenant desires at any time to enter into an.Assignment or Sublease as described
above, it shall first give written notice to Landlord of its desire to do so, which notice shall contain or include: (a)
the name of the proposed successor,assignee, subtenant or occupant (hereafter referred to as the"transferee"); (b)
the nature of the proposed transferee's business to be conducted in the Premises; (c) the terms, provisions and
economic considerations of the proposed Assignment or Sublease; (d)the identity of proposed principals and lease
guarantors (if any); (e) signed current financial statements of the proposed transferee and guarantors (if any),
reviewed or prepared by a major local or national certified public accounting firm; and(f)the business plan of the
proposed transferee or other written statements of purpose, proposed operating policies and the background and
experience of the principals.
19.3 Landlord's Election. Many time within thirty(30) days after receipt of the notice specified in Section
19.2 above,Landlord may request additional information or may, in its sole and absolute discretion, by written
notice to Tenant: (a) consent to the Sublease or Assignment; or (b) disapprove the Sublease or Assigtmnent. If
Landlord consents to the Sublease or Assignment within said thirty(30)day period,Tenant shall within thirty(30)
days thereafter enter into such Sublease or Assignment of the Premises or portion thereof, upon the terms.and
conditions set forth in the notice previously furnished by Tenant to Landlord pursuant to Section 19.2 above;
otherwise,Landlord's consent shall be void and of no force or effect.
19.4 Noncompliance. No consent by Landlord to any Assignment or Sublease by Tenant shall release Tenant
front any of its obligations hereunder or relieve Tenant of any obligation to be performed by Tenant under this
DOCS/1923301.617
Lease, whether arising before or after the Assignment or Sublease, including, without limitation, the payment of
Rent. Landlord's consent to any Assignment or Sublease shall not relieve Tenant; or the transferee, from the
obligation to obtain Landlord's express prior written consent to any other Assignment or Sublease. Following
Landlord's consent to an Assignment or Sublease,said Assignment instrument or Sublease shall not be subsequently
amended or modified without prior written notice to and the consent.of Landlord, if Landlord would have been
entitled to notice thereof in the first instance pursuant to Section 19.2. Any purported Assignment or Sublease not in
compliance with this Article shall be void and, at the option of Landlord,shall constitute a default by Tenant under
this Lease. The acceptance of Rent by Landlord from a proposed transferee shall not constitute Landlord's consent
to:any such Assignment or Sublease.
195 Assumption of Lease.. Each transferee..shall expressly assume.all,obligations of Tenant under this Lease,
and shall be and remain jointly and severally liable with Tenant for the payment of Rent and for the performance of
all the terms, covenants, conditions and agreements herein contained with respect to that portion of the Premises
which is subject to the Assignment or'the Sublease. No Assignment or Sublease shall be binding on Landlord,.
unless the transferee or Tenant shall deliver to Landlord an executed counterpart of the Assignment or Sublease
which contains covenants of assumption'satisfactory in substance and form to.Landlord; and consistent with the
requirements of this Article; 'provided that the failure or refusal Of such party to execute such instrument of
assumption shall not release or discharge the transferee from its liability as forth above.
19:6 Successors;Joint Liability. All rights and liabilities herein given or imposed upon the:respective parties
hereto shall, except as may be otherwise herein provided, extend to and. bind the respective heirs, executors,
administrators,successors and assigns of the said parties;and if there shall be more than one(1)tenant,they shall all
be bound jointly and severally by the terms,covenants and agreements herein contained. No rights;however,shall
inure to the benefit of any transferee or assignee of Tenant unless the Assignment or Sublease has been made in
accordance with the provisions in this Article.
19.7 Processing Charge. Tenant agrees to reimburse Landlord for reasonable attorneys' fees incurred by
Landlord in connection with'the 'processing, review and documentation of any Assignment, Sublease, license;
concession, creation of.a security interest, granting of a collateral assignment, change of ownership or transfer for
which Landlord's consent is required or sought under this Article. Landlord shall not be required to take any action
thereon until Tenant pays such amounts.
19.8 Landlord's Consideration. Whenever its consent to a proposed Assignment or Sublease is required
hereunder,Landlord may request additional supporting documentation and assurances and may consider all relevant
factors,including(without.limitation):
(a) Whether the use of the Premises and trade name of the proposed transferee will be identical to(or
substantially the same as) those of Tenant, or will otherwise be compatible with Landlord's efforts to enhance the
image,reputation,trade name and long-term profitability of the Center;
•
(b) Whether the addition of the proposed new tenant or subtenant will be compatible with the tenant
mix of the Center generally and specifically among business operators specializing in particular kinds of
merchandise, services and products; or conflict with Landlord's marketing plans for the Center and the consumer
groups being targeted by Landlord and its leading tenants in the Center;
(c) Whether the quantity, kind, variety and quality of the merchandise sold will remain substantially
the same;
(d) Whether the level and quality of customer services on the Premises will be consistent with those •
of the leading tenants of the Center and will remain high;
•
(e) Whether the net worth and liquidity of the proposed transferee and lease guarantors (if any) are
adequate in relation to the assets held and to current and anticipated future financial obligations, as revealed by
current signed financial statements reviewed by a major local or national certified public accounting firm;
DOCS/1923301.618 •
(f) Whether the proposed transferee and its principals, affiliates and guarantors (if any) have a
sufficient credit history and reputation for honesty and fair dealing;
(g) Whether the business plan and operating procedures for the business on the Premises are
reasonably coherent,lucid,credible and economically feasible;
(h) Whether the proposed transferee and its management team have sufficient education, specifically
applicable business experience,and successful track records in marketing and Managing businesses similar in size,
scope and scale to that on the Premises together with any other stores,offices or businesses proposed to be acquired
by the transferee and its affiliates;and
(i) Whether the amounts to be invested in the business on the Premises are actually invested, and
whether the proposed transferee and its principals and guarantors(if any)have sufficient personal financial interests
and potential personal liabilities to assure proper motivation for success.
ARTICLE 20: LANDLORD'S REMEDIES
20.1 Default. The occurrence of any one or more of the following events shall constitute a"Default"by Tenant
and shall give rise to Landlord's remedies set forth in Section 202 below: (i) failure to make when due any
payment of Rent or other sums to be paid hereunder,unless such failure is cured within ten (10) days after written
notice;(ii)failure to observe or perform any term or condition of this Lease other than the payment of Rent or other
sums to be paid hereunder, unless such failure.is cured within thirty (30) days after written notice, provided,
however,if it_shall reasonably take more than thirty (30) days in which to cure, and Tenant begins punctually and
proceeds diligently to effect a cure,the thirty (30) day period shall be extended by a reasonable period in which
Tenant may cure(or'such additionaltirrie as may required due to Unavoidable Delays as described in Article 28);
(iii) (a)making by Tenant or any Guarantor of this:Lease of any general assignment for the benefit of creditors,(b)
filing by or against Tenant or any Guarantor of a petition to have Tenant or such Guarantor adjudged a bankrupt or a
petition for reorganization or'arrangement under any Law relating to bankruptcy or insolvency(unless,in the case of
a petition filed against Tenant or such Guarantor,the same is dismissed within sixty(60)days),(c)appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets located in the Premises or of Tenant's
interest in this Lease,where possession,is not restored to Tenant within thirty(30)days,(d)attachment,execution or
other judicial seizure of substantially all of Tenant's assets located on the Premises or of Tenant's interest in this
Lease,(e)Tenant's or any Guarantor's convening of a meeting(Ails creditors or any class thereof for the purpose of
effecting a moratorium upon or.composition or restructuring of its debt,(I)Tenant's or any Guarantor's insolvency
or admission Of an inability to pay its debts as they mature; or(iv) failure by Tenant to open for business in the
entire Premises by the date which is thirty(30)days:from the Commencement Date. Notwithstanding the foregoing,
failure by Tenant to comply with the same term or condition of this Lease on two (2) occasions during any twelve
(12)month period shall,at Landlord's option,constitute an incurable Default. The notice and cure.periods provided
herein are in lieu of,and not in addition to,any notice and cure periods provided by Law.
20.2 Remedies: If a Default occurs;Landlord shall have the right to terminate Tenant's right of possession;re-
enter and repossess the Premises by detainer suit, summary proceedings or other lawful means, with or without
terminating this Lease(and if applicable Law permits, and Landlord shall not have expressly terminated this Lease
in writing, any such action shall be deemed a termination of Tenant's right of possession only). In such event,
subject to the limitations of Section 20.3 below, Landlord may recover from Tenant: (i) any unpaid Rent as of the
date Tenant's right of possession is terminated, (ii)any unpaid Rent which accrues during the Term from the date
Tenant's right of possession is terminated through the time of judgment(or which may have accrued from the time
of any earlier judgment:obtained by Landlord),less any consideration received from replacement tenants as further
described and applied pursuant to Section 20.8 below, (iii)any unamortized portion of the real estate commissions
paid by Landlord related to this Lease and based upon the then remaining Term of the Lease, (iv)any unamortized
portion of the Tenant Improvement Allowance paid by Landlord and based on the then remaining Term of the
Lease, and (v) any other amounts necessary to compensate Landlord for all damages proximately caused by
Tenant's failure to perform its obligations under this Lease, including,without limitation, all Costs of Reletting(as
defined in Section 20.8 below). Tenant shall pay any such amounts to Landlord as the same accrue or after the same
have accrued from time to time upon demand. At any time after terminating Tenant's right to possession as
provided herein, Landlord may terminate this Lease by written notice to Tenant, and Landlord may pursue such
DOCS/1923301.619
other remedies as may be available to Landlord under this Lease or applicable Law. For purposes of computing the
amount of Rent herein that would have accrued after the termination date, and Tenant's obligations for Tenant's
`Proportionate Share. of Operating Costs, Taxes and Landlord's Insurance and Marketing Fund Charges shall be
projected,based upon the average rate of increase, if any, in such items from the Commencement Date through the
termination date. The amounts computed in accordance with the foregoing subclauses (i) and (ii) shall both be
discounted in accordance with accepted financial practice at the rate of six percent(6%) per annum to the then
present value.
20.3 Mitigation of Damages. If Landlord terminates this Lease or Tenant's right to possession, (a) Landlord
shall be required only to use reasonable good faith efforts to mitigate Landlord's damages, which shall not exceed
such efforts as Landlord generally uses to lease other space at the Center,(b)Landlord will not be deemed to have
failed to mitigate if Landlord leases any other comparable portions of the Center before reletting all or any portion of
the Premises,and(c)any failure to mitigate as described herein with respect to any period of time shall only reduce
the Rent and other amounts to which Landlord is entitled hereunder by the reasonable rental value of the Premises
during such period,taking into account the factors described in Section 20.2 above. In recognition that the value of
the Center depends on the rental rates and terms of leases therein,Landlord's rejection of a prospective replacement
tenant based on an offer of rentals below Landlord's published rates for new leases of comparable space at the
Center at the time in question, or at Landlord's option,below the rates provided in this Lease, or containing terms
less favorable than those contained herein, shall not give rise to a claim by Tenant that Landlord failed to mitigate
Landlord's damages.
20.4 Reletting. If this Lease or Tenant's right to possession is terminated, or Tenant vacates or abandons the
Premises, Landlord may: (i) enter and secure the Premises, change the locks, install barricades, remove any
improvements,fixtures or other property of Tenant therein,perform any decorating,remodeling,repairs,alterations,
improvements or additions and take such other actions as Landlord shall determine in Landlord's reasonable good
faith discretion to prevent damage or deterioration to the Premises or prepare the same for reletting,and(ii)relet all
or any portion of the Premises (separately or as part of a larger space), for any rent, use or period of time(which
may extend beyond the Term hereof), and upon any other terms as Landlord shall determine in Landlord's sole
discretion, directly or as.Tenant's agent (if permitted or required by applicable Law). The consideration received
from such reletting shall be applied pursuant to the terms of Section 20.8 hereof, and if such consideration, as so
applied, is,not sufficient to cover all Rent and damages to which Landlord may be entitled hereunder,Tenant shall
pay any deficiency to Landlord as the same accrues or after the same has accrued from time to time upon demand,
subject to the other provisions hereof.
20.5 Collection of Rent and Acceleration. Landlord shall,at all times have the right, without prior demand or
notice except as required by applicable Law, to (i) seek any declaratory,injunctive or other equitable relief, or
restrain or enjoin a violation of any provision hereof, and Tenant hereby waives any right to require that Landlord
post a bond in connection therewith, and (ii) sue for and collect any unpaid Rent which has accrued.
Notwithstanding anything to the contrary contained in this Lease, but subject to the provisions of Section 20.2
above, to the extent not expressly prohibited by applicable Law, in the event of any Default by Tenant, Landlord
may terminate this Lease or Tenant's right to possession and accelerate and declare that all Rent reserved for the
remainder of the Term shall be immediately due and payable (in which event, Tenant's obligations for Tenant's
Proportionate Share of Operating Costs, Taxes and Landlords Insurance and Marketing Fund Charges herein that
would have accrued thereafter shall be projected in the manner described in Section 20.2 above);provided the Rent
so accelerated shall be discounted in accordance with generally accepted financial practices at the rate of six percent
(6%)per annum to the then present value,and Landlord shall,after receiving payment of the same from Tenant,be
obligated to turn over to Tenant any actual net reletting proceeds (net of all Costs of Reletting) thereafter received
during the remainder of the Term,up to the amount so received from Tenant pursuant to this provision.
20.6 Landlord's Cure of Tenant Defaults. If Tenant fails to perform any obligation under this Lease within
any applicable notice and cure periods herein required (except that no notice shall be required in emergencies),
Landlord shall have the right(but not the duty)to perform such obligations on behalf and for the account of Tenant.
In such event, Tenant shall reimburse Landlord upon demand, as additional Rent, for all expenses incurred by
Landlord in performing such obligation together with an amount equal to fifteen percent (15%) thereof for
Landlord's overhead, and interest thereon at the Default Rate from the date such expenses were incurred.
DOCSl1923301.620
Landlord's performance of Tenant's obligations hereunder shall not be deemed a waiver or release of Tenant
therefrom.
20.7 Bad Rent Checks. If during the Term(and any extension(s)thereof),Landlord receives two (2) or more
checks from Tenant which are returned by Tenant's bank for insufficient funds,Landlord may require that all checks
thereafter be bank certified or cashier's checks (without.limiting Landlord's other remedies). All bank service
charges resulting from any bad checks shall be borne by Tenant. In addition, Tenant shall immediately pay
Landlord, upon demand, the sum of Fifty and 00/100 Dollars ($50.00) for each bad check to cover Landlord's
administrative costs for processing bad checks. Said sum shall be deemed additional Rent hereunder.
20.8 Other Matters. No re-entry or repossession, repairs, changes, alterations and additions; reletting,
acceptance of keys from Tenant,or any other action or omission by Landlord shall be construed as an election by
Landlord(to the extent Landlord has such an election)to terminate this Lease or,subject to the provisions of Section
20.2 above, Tenant's right to possession, or as an acceptance of a surrender of the Premises, nor shall the same
operate to release Tenant in whole or in part from any of Tenant's obligations hereunder, unless express written
notice of such intention is sent by Landlord or its agent to Tenant. Landlord may, subject to the overall limitation
provided herein,bring suits for amounts owed by Tenant hereunder or any portions thereof, as the same accrue or
after the same have accrued, and no suit or recovery of any portion due hereunder shall be deemed 'a waiver of
Landlord's right to collect all amounts to which Landlord.is entitled hereunder,nor,except as provided in the overall
limitations, shall the same serve as any defense to any subsequent suit brought for any amount not theretofore
reduced to judgment. Landlord may pursue one or more remedies against Tenant and need not make an election of
remedies until findings of fact are made by a court of competent jurisdiction. All rent and other consideration paid
by any replacement tenants shall be applied, at Landlord's option, as follows: first, to the Costs of Reletting;
second,to the payment of all costs of enforcing this Lease against Tenant or any Guarantor;third,to the payment of
all interest and service charges accruing hereunder;fourth,to the payment of Rent, subject to the overall limitations
provided herein;and the residue,if any,shall be held by Landlord and applied to the payment of other obligations of
Tenant to Landlord as the same become due(with any remaining residue to be retained by Landlord). "Costs of
Reletting"shall include,without limitation,all reasonable costs and expenses incurred by Landlord for any repairs,
maintenance,changes,alterations and improvements to the Premises(whether to prevent damage or to prepare the
Premises for releuing),brokerage commissions,advertising costs,attorneys' fees,any economic incentives given to
enter leases with replacement tenants, and costs of collecting rent.from replacement tenants. Landlord shall be
under no obligation to observe or perform any provision of this Lease on its part to be observed or performed which
accrues after the date of any termination.by Landlord of the Lease or Tenant's right to possession of the Premises.
The times set forth herein for the curing of violations by Tenant are of the essence of this Lease. Tenant hereby
irrevocably waives any right otherwise available under any Law to redeem or reinstate this Lease or Tenant's right
to possession after this Lease or Tenant's right to possession is terminated based on a Default by Tenant.
ARTICLE 21:LANDLORD'S LIABILITY
Anything in this Lease to the contrary notwithstanding,Tenant agrees that Tenant shall look solely to the
estate and property of Landlord in the land and buildings comprising the Center of which the Premises forma part
and the rentals therefrom for the collection of any judgment (or other judicial process) requiring the payment of
money by.Landlord in the event of any default or breach by Landlord with respect to any of the terms, covenants
and conditions of this Lease;subject,however,to the prior rights of any ground or underlying lessor or the holder of
any mortgage, deed of trust or prior lien covering the Center, and no other assets of Landlord shall be subject to.
levy,execution or other judicial process for the satisfaction of Tenant's claims.
ARTICLE 22: PROPERTY REMOVAL
22.1 Tenant's Property. For the purpose of this Article 22, the following shall be deemed to be Tenant's
property: (a)all furniture,trade fixtures, equipment and movable personal property,other than those installed by or
at the expense of Landlord; and(b)all inventory and stock in trade furnished by or at the expense of Tenant. Such
property may be removed from the Premises by Tenant at any time,provided that items essential to the conduct of
Tenant's business shall be replaced with items of similar purpose and quality during the Lease Term. Tenant shall
only replace or dispose of the Existing FF&E with Landlord's prior written approval, which Landlord shall not
unreasonably withhold, condition, or delay; provided, further, in event that Tenant replaces any Existing FF&E
DOCS/1923301. 621
under such circumstances, the Existing FF&E item will be returned to Landlord or disposed of by Tenant, at
Landlord's election, and replacement item shall become the property of Tenant. All of Tenant's property, except
those items, if any, which Landlord may have given Tenant specific written permission to leave in the Premises,
shall be removed upon expiration or termination of this Lease,and Tenant shall repair any damage to the Premises
caused by such.removal.
22.2 Landlord's Property. Regardless of which party may have installed or paid for them,or may own or have
insurable interests in them during the Term, any and all improvements, betterments,'materials, fixtures and
equipment,.affixed in any manner to the Building or the Premises(except trade fixtures and equipment installed and
paid for by Tenant) shall become Landlord's sole property upon expiration or termination of this Lease. No such
property may be removed from the Premises except upon the express written consent of Landlord; provided that
Landlord shall have the right,at its option upon expiration or termination of the Lease Term,to demand that.Tenant
remove any specific improvements,betterments or other items previously:installed and paid for by Tenant and to
restore the Premises to substantially the same condition as existed prior to Tenant originally taking possession of the
Premises, all at Tenant's cost and expense; and Tenant shall promptly comply. By way of illustration and not in
limitation, the following kinds of fixtures, improvements, betterments and other items shall be deemed to be
Landlord's property unless otherwise determined by Landlord:.attached carpeting and floor coverings;paneling;
woodwork and moldings; doors and windows; attached mirrors; fixed walls and partitions; pipes, faucets, sinks,
disposals,commodes,plumbing lines and plumbing fixtures of all kinds;lighting fixtures of all kinds and electrical
outlets; HVAC ductwork, compressors, condensers, furnaces, boilers and other equipment; hot water heaters; fire
suppression and sprinkler systems; floors, decks and mezzanines;built-in ovens, stoves, walk-in or non-moveable
freezers or refrigerators and other kitchen equipment; suspended and fixed ceilings; fixed cabinetry and shelving;
wall coverings; ceiling and attic fans and:humidifiers; blinds, drapes, curtain rods and other window treatments;
gazebos,gates,fences,trellises,trees, shrubs and plantings of all kinds; all similar items and all improvements and
betterments to the Building,the Premises and any appurtenant tract.
ARTICLE 23: LANDLORD'S LIEN.,WAIVER AND SECURITY AGREEMENT
23.1 Landlord's Lien. All property of Tenant which is now or hereafter may in or upon the Premises,
whether or not exempt from execution, shall be bound by and subject to a lien and also to the encumbrance of a
security interest in said property, which Tenant hereby grants to Landlord in accordance with the provisions of the
Uniform Commercial Code("UCC")in the state in which the Premises are located,for the payment of all rents and
charges herein reserved and for payment of any damages arising from Tenant's breach of any of the covenants or
agreements of this Lease; provided that the provisions hereof shall:not apply to inventory stock-in-trade kept.by
Tenant, but the lien and security interest hereby created shall apply as 'to all other property of Tenant now or
hereafter in or upon said Premises. Tenant hereby appoints Landlord as its-agent and attorney-in-fact to execute any
and..all financing statements,amendments'and extensions thereof on UCC forms on behalf of Tenant, and to file the
same on behalf of Tenant or without Tenant's signature, at Landlord's option. In case of default in the payment of
Rent when the same becomes due, which default continues for a period-of ten (10)days:after written notice from
Landlord to.Tenant,Landlord may take possession of all or any parts of such property and sell or cause the same to
be sold at public or private sale,with or without notice,to the highest bidder for cash,and apply the proceeds of said
sale toward the costs thereof and then toward the debt and/or damages as aforesaid. Landlord's exercise of the
security interest herein created shall.cause Landlord's interest in said property to be senior to Tenant's interest
therein for purposes of any replevin action brought against Landlord by Tenant.
23.2 Optional Waiver. Landlord may'elect,in its sole discretion,to release or subordinate any and all rights it
may have to claim a lien or other rights in or to Tenant's property. All Lenders claiming a security interest in any or
all of Tenant's property may give Landlord written notice of their security interests upon or prior to expiration or
termination of this Lease;and Landlord will contact said Lender if any such items remain in the Premises following
expiration or termination of this Lease, provided that the Lender promptly removes the same upon demand by
Landlord. Any items not so removed by Tenant or the Lender shall be deemed abandoned,:and Landlord shall
dispose of the same as it sees fit and retain all proceeds(if any).
23.3 Non-Waivable Security Interest. Regardless of who may have installed or paid for them, or who may
own or have insurable interests in them during the Lease Term,Landlord hereby affirms and asserts its lien rights in
and to full ownership of all Landlord's property described in Section 22.2 above upon expiration or termination of
DOCSi1923301.622
•
this Lease, together with all replacements thereof and substitutions therefor. The provisions of this Lease shall
constitute a security agreement under the Uniform Commercial Code in the state in which the Premises are located,
for the payment of all rents and other charges reserved hereunder and for damages.arising from the breach(if any)
by Tenant of the covenants,terms or conditions of this.Lease;and such security interest shall attach and apply to any
and all improvements,betterments,equipment and other items installed by Tenant in the Preinises.(except Tenant's
property described in Section 22.1 above),or otherwise comprising.Landlord's property as described in Section 22.2
above; In the event of default by Tenant.in the payment of Rent or performance of any other covenant of this Lease,
then Landlord shall have all.rights and remedies prescribed in Article 20 above. Further,if Tenant fails to timely
cure any such default after written notice from Landlord,then Landlord or its successors or assigns also shall have
the further right to take possession of the encumbered property or any part thereof and sell or cause the same to be
sold at any public or private sale,with or without further notice to Tenant,to the highest bidder-for cash.-•Landlord-
thereupon may apply the proceeds of such sale toward'the costs of sale and then to Tenant's Rent obligations and
Landlord's damages as aforesaid. Landlord's security interests herein created shall be first and paramount over the
interests of Tenant and any Lender of Tenant and specifically shall be senior to any claim by Tenant or its Lenders
for replevin of such property brought against Landlord. No action of Landlord in expressly waiving any security or
lien,rights against Tenant's propertyshall ever be deemed to extend such waiver to.Landlord's property as described
in Section 22.2 above. Nothing herein, however, is intended to preclude Tenant from any proper financing of
Tenant's property; provided that upon expiration or termination of this Lease, Landlord's property shall remain
Landlord's,free and clear of any encumbrance on the part of Tenant or its Lenders.
ARTICLE 24: EMINENT DOMAIN
24.1 Effects of Condemnation. If all or any part of the Premises shall be taken by any public or quasi-public
authority under the power of eminent domain, or conveyed to a public or quasi-public authority under the threat of
the power of eminent domain, then the terms of this Lease shall cease as to that-part.of the Premises so taken or
conveyed (hereafter referred to as the "condemned portion") from the date possession of the condemned portion
shall be taken by the condemning authority. Unless this Lease is cancelled as hereafter provided,the Rent shall be
. reduced in proportion to the amount of the Premises taken,commencing with.the date possession is acquired by the
condemning authority. If the loss of the condemned portion will, based upon generally accepted standards
applicable to Tenant's business on the Premises, have a significantly impairing effect on such business as to render
the Premises.unfit for its intended use; then Tenant may cancel this entire Lease. Such right to cancel may be
exercised by Tenant only:
(a) If Tenant gives Landlord at least ten(10)days'prior written notice of such cancellation;
(b) The effective date of such cancellation Of the entire Lease is the same as the date possession was
obtained of the condemned portion by the condemning authority;and
(c) Rent is paid.in full to the effective date of such cancellation.
24.2 Awards. All damages awarded for any such taking shall belong.to Landlord as its property,whether such
damages shall be awarded as compensation for diminution in value to the leasehold or to the fee interest in the
Premises;provided,however,that Landlord shall not be entitled to any portion of the award made to Tenant for Ioss
of business, damage and depreciation to its inventory, stock, furnishings and trade fixtures, and the costs of
removing and relocating the same.
ARTICLE 25: SALE AND MORTGAGE OF THE PREMISES
25.1 Mortgage. Landlord reserves the right to_subject and subordinate this Lease at:all times to the lien of any
mortgage or deed of trust loan now or hereafter placed upon Landlord's interest in the Premises or on the Center and
land of which the Premises form a part. Upon the written request of any Lender,Tenant shall subordinate its rights
under this Lease to the lien of any mortgage or deed of trust. Notwithstanding the foregoing, if the Lender elects to
have this Lease superior to its mortgage or deed of trust, then upon.Lender's request, Tenant shall execute;
,acknowledge and deliver an instrument, in the form used by said Lender, effecting such priority. In the event
proceedings are brought for foreclosure of, or the exercise of a power of`sale under any such mortgage or deed of
trust,Tenant shall,upon request,attorn to the purchaser at any such foreclosure or-sale and recognize such purchaser
DOCS/1923301.623
•
as Landlord under this Lease. Upon Landlord's request, Tenant shall promptly execute, acknowledge and deliver
such instruments as are required to effect the intent of this section.
25.2 Sale of Premises. Landlord further reserves the right to sell or otherwise assign its interests in this Lease
or the,Premises,and no such action shall affect or otherwise impair.this Lease. If Landlord conveys ownership of
the Center or Premises or if Landlord assigns its interests in this Lease,then upon such conveyance or assignment,
Landlord(and the grantor or assignor, in the case of any subsequent conveyances or assignments)shall be entirely
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 assignment; subject, however, to the new Landlord
accepting the responsibility for the performance of all obligations of this Lease to be performed by Landlord.
25.3 Estoppel Certificates. Tenant agrees to execute,acknowledge,and deliver to and in favor of any Lender or
purchaser of the Premises or Center, within fifteen (15) days after written request by Landlord, any estoppel
certificate that may be requested. If such certificate is not returned during that period of time,then commencing on
the sixteenth (16th) day and continuing each day thereafter, Tenant agrees to pay as additional Rent, the sum of
Twenty-Five Dollars($25.00)per day,until such certificate is returned. The..estoppel certificate shall state, among
other things: (a)whether this Lease is in full force and effect;(b)whether this Lease has been modified or amended ,
and,if so,identifying and describing any such modification or amendment;(c)the date to which rents and any other
charges have been paid; and (d) whether,Tenant knows of any default on the part of Landlord or has any claim
against Landlord and,if so,specifying the nature of such default or claim.
25.4 Quiet Possession. All other provisions of the Lease notwithstanding, so long as Tenant shall not be in
default in the payment of rents or performance of the covenants of this Lease, Landlord shall not disturb Tenant's
possession of the Premises.
ARTICLE 26: INDEMNIFICATION
Except to the extent arising from the intentional misconduct or negligent acts of Landlord or Landlord's
agents or employees,but subject to the waiver of subrogation set forth herein,Tenant shall defend, indemnify and
hold harmless Landlord from and against any and all claims, demands, liabilities, damages, judgments, orders,
decrees,actions, proceedings, fines, penalties, costs and expenses, including, without limitation, court costs and
attorneys' fees, arising from or relating.to any violation of Law by Tenant, loss of life, diminution in value of the
Center,damage or injury to persons,property or business occurring in the Premises,or directly or indirectly caused
by or in connection with any violation of this Lease or use of the Premises or Center by,or any other negligent act or
omission of,Tenant,any other occupant of the Premises,or any of their respective agents,employees or contractors.
Without limiting the generality of the foregoing,Tenant specifically acknowledges that the indemnity undertaken
herein shall apply to claims in connection with or arising out of any"Work"as described in Article.9, the use or
consumption of any utilities in the Premises under Article 12, any repairs or other work by or for Tenant under
Article 13 and the transportation, use,storage, maintenance, generation,manufacturing,handling,disposal,release
or discharge of any"Hazardous Substance"as described in Article 31 (whether or not such matters shall have been
theretofore approved by Landlord),except to the extent that any of the same arises from the intentional misconduct
or negligent acts of Landlord or Landlord's agents,contractors or employees.
Except to the extent arising from the intentional misconduct or any negligent act or omission of Tenant or
Tenant's agents, employees or contractors but-subject to the waiver of subrogation set forth herein, Landlord shall
defend (with counsel selected by Landlord and reasonably acceptable to Tenant), indemnify and hold harmless
Tenant from and against any and all claims, demands, liabilities, damages,judgments, orders, decrees, actions,
proceedings,fines,penalties,costs and expenses,including,without limitation,court costs and reasonable attorneys'
fees, arising from any violation of Law by Landlord, or loss of life, damage or injury to persons or property
occurring in the Common Areas.
ARTICLE 27: NOTICES AND SERVICE
27.1 Receipt of Notice. Any notice which either party desires or is required to deliver to the other shall be in .
writing and shall be effective and deemed received, (a) one (I) business day after deposit with a nationally
recognized overnight courier service; or(b) upon delivery to Landlord or to Tenant or Tenant's manager in person;
DOCS/1923301.624
or (c)upon receipt or refusal, after being delivered by certified United States mail, postage prepaid, return receipt
requested,addressed as follows:
To Tenant: At Tenant's home office address shown in Section l.2 or at the last known post
office address of Tenant or at the address of the Premises
To Landlord: East Campus Realty LLC
c/o Mutual of Omaha Insurance Company
Mutual of Omaha Plaza
Omaha,Nebraska 68175
• Attn:President,East Campus Realty LLC
or to such other or additional addresses of which either party may, from time to time, give written notice to the
other.
27.2 Consent to Service. Tenant agrees that any action brought in connection with this Lease may be
maintained in any court of competent jurisdiction in the county and state where the Premises are located. Tenant
hereby appoints Landlord as agent for the purpose of accepting service of any legal process, subject only to the.
condition that Landlord promptly send notice of such process to Tenant as provided in Section 27.1 above or at such
other address of Tenant as set forth elsewhere in this Lease or of which Tenant may give Landlord notice at a later
date.
ARTICLE 28: TIME AND UNAVOIDABLE DELAY
28.1 Force Majeure. In the event either party shall be delayed,hindered or prevented from performing any act
required under this Lease by reason of Unavoidable Delay which is not the fault of the party delayed in performing,
then performance of such act shall be excused for the reasonable period of the Unavoidable Delay, and the period
for the performance of any such act shall be extended for a period equivalent to the reasonable period of such
Unavoidable Delay.
28.2 Timely Performance. TIME IS OF THE ESSENCE OF THIS LEASE. All other provisions of this Lease
notwithstanding,no Unavoidable Delay or other circumstance shall justify or excuse a delay or failure to make any
payment required hereunder in a timely manner; provided that the commencement of the Lease or opening of the
Premises for business maybe postponed as provided in Article 3 above.
ARTICLE 29: SAFETY AND SECURITY DEVICES,SERVICES AND PROGRAMS
Landlord shall have no obligation to provide any safety or security devices,services or programs for Tenant
or the Center-and shall have no liability for failure to provide the same or for inadequacy of any measures provided.
However,Landlord may institute or.continue such safety or security devices, services and programs as Landlord,in
its sole discretion, deems necessary. The parties acknowledge that safety and security devices, services and
programs provided by Landlord,if any,while intended to deter crime and enhance safety,may not in given instances
prevent theft or other injurious acts or ensure safety of parties or property. The risk that any safety or security
device, service or program may not be effective, or may malfunction, or be circumvented, is assumed by Tenant
with respect to Tenant's property and interests, and Tenant shall obtain insurance coverage to the extent Tenant
desires protection against such acts and other losses,beyond that described in Article 15. Tenant agrees to cooperate
in any safety or security program developed by Landlord or required by Law.
ARTICLE 30: ACCESS TO PREMISES:ALTERATIONS
30.1 Access to Premises. Landlord shall have the right,if it so elects,to enter upon the Premises at reasonable
hours, with advance notice to Tenant except in emergencies, for the purpose of inspecting the same, determining
Tenant's compliance with this Lease, repairing or maintaining any pipes, conduits or ducts (whether the same are
used in the supply of services to Tenant or to other occupants of the Building or adjacent buildings)or in connection
with construction work or any other improvements, repairs or alterations in and about the Building. If Landlord
DOCS/1923301.625
deems it necessary to make any repairs or replacements for which Tenant is responsible under this Lease,Landlord
may demand in writing that Tenant make the same, and if Tenant refuses or neglects to commence such repairs or
replacements in good faith or fails to complete the same with reasonable dispatch,Landlord may make or cause such
repairs or replacements to be made; and, in so doing, Landlord shall not be responsible to Tenant for any loss or
damage that may accrue to Tenant's business by reason thereof. If Landlord makes or causes such repairs or
replacements to be made,Tenant shall forthwith pay Landlord upon demand the full costs thereof as additional Rent
hereunder with late charges and interest as prescribed in Section 7.2 above; and if Tenant shall default in such
payment,Landlord shall have all the remedies provided in Article 20 and elsewhere in this,Lease.
30.2 Alterations and Improvements. Landlord reserves the right at any time to build additional stories upon
and/or to otherwise expand the Building or the Center. Landlord further reserves the right to close skylights,
windows or doors of the Premises and to run pipes,conduits,ducts or electrical lines through the Premises; and to
alter the size, area and location of hallways, entrances, parking areas, Common Areas reserved for general usage,
driveways, sidewalks, landscaped areas and all other portions of the Center. Landlord also shall have the right to
close the..Premises,the Building or any other portions of the Center whenever necessary to comply with any Laws,
in cases of public disturbance or for any other reasons which Landlord deems, in its discretion, appropriate, and
Tenant hereby waives all claims for damage or inconvenience caused by any such closings.
ARTICLE 31: HAZARDOUS SUBSTANCES
Tenant shall not use or allow the Premises or any portion of the Building or Center to be used for the
Release, storage, use, treatment,disposal or other handling of any Hazardous Substance, without the prior written
consent of Landlord. The term "Release" shall have the same meaning as is ascribed to it in the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq., as amended ("CERCLA").
The term"Hazardous Substance"means(i)any substance defined as a"hazardous substance"under CERCLA; (ii)
petroleum,petroleum products,natural gas,natural gas liquids,liquefied natural-gas,and synthetic gas;and(iii)any
other substance or material deemed to be hazardous,dangerous,toxic or a pollutant under any Laws.
Tenant shall(a)give prior notice to Landlord of any activity or operation to be conducted by Tenant at the
Premises or anywhere in the Building or Center which involves the Release,,use, handling, generation,treatment,.
storage,or disposal of any Hazardous Substance("Tenant's Hazardous Substance Activity");provided,however,
nothing herein shall permit the conduct of any Tenant's Hazardous Substance Activity without the prior written
consent of Landlord; (b)comply with all Laws, permits and licensing conditions governing the Release,discharge,
emission, or disposal of any Hazardous Substance and prescribing methods for or other limitations on storing,
handling or otherwise managing Hazardous Substances; (c) at its own expense, promptly contain and remedy any
Release of Hazardous Substances arising from or related to Tenant's Hazardous Substance Activity in the Premises,
the Building, the Center, any area in the vicinity of the Center or the environment and remedy and pay for any
resultant damage to property,persons and/or the environment;(d)give prompt notice to Landlord and all appropriate
regulatory authorities of any Release of any Hazardous Substance in the Premises, Building,the Center,any area in
the vicinity of the Center or the environment arising from or related to Tenant's Hazardous Substance Activity,
which Release is not made pursuant to and in conformance with the terms of any permit or license duly issued by
appropriate governmental authorities(any such notice shall include a description of measures taken or proposed to
be taken by Tenant to contain and remedy the Release and any resultant damage to property, persons or the
environment); (e) at Landlord's request, which shall not be more frequent than once per calendar year, retain an
independent engineer or other qualified consultant or expert acceptable to Landlord,to conduct,at Tenant's expense,
an environmental audit of the Premises and immediate surrounding areas,and the scope of work to be performed by
such engineer,consultant or expert shall be approved in advance by Landlord,and all of the engineer's,consultant's
or expert's work product shall be made available to Landlord; (f) at Landlord's request from time to time, execute
affidavits, representations and the like concerning Tenant's best knowledge and belief regarding the presence of
Hazardous Substances in the Premises; (g)reimburse to Landlord,upon demand,the reasonable cost of any testing
for the purpose of ascertaining if there has been any Release of Hazardous Substances in the Premises, Building,
Center, any area in the vicinity of the Center or the environment, if such testing is required by any governmental
agency or Landlord's Lender; and (h) upon expiration or termination of this Lease, surrender the Premises to
Landlord free from the presence and contamination of any Hazardous Substance.
DOCS/1923301.626
•
Tenant agrees to and shall indemnify, defend and hold harmless Landlord,its successors and assigns from
and against any and all liability, loss or expense,;including, but not limited to, reasonable attorneys' fees, arising •
from or connected with any contamination, claim of contamination, violation of Laws,judgment, loss or damage
related to Tenant's Hazardous Substance Activity. This provision shall survive termination of this Lease. Tenant
agrees that the indemnity herein contained shall extend to any actions caused by Tenant and its agents,employees,
contractors or invitees.
ARTICLE 32: RULES
Tenant shall comply with,all of the rules which are set forth in Exhibit C attached to this Lease,as the same
may be amended or supplemented hereunder(the"Rules"). Landlord shall have the right by notice to Tenant to
reasonably amend such Rules and supplement the same with other reasonable Rules relating to the Center or the
promotion of safety,care,cleanliness or good order therein. Nothing herein shall be construed to give Tenant or any
other party any claim against Landlord arising out of the violation of such Rules by any other tenant, occupant or
visitor of.the Center, or out of the enforcement, modification or waiver of the.Rules by Landlord in any particular
instance.
ARTICLE 33: PERSONAL PROPERTY TAXES
Tenant shall pay before delinquent all taxes, assessments, license fees, charges or other governmental
impositions assessed against or levied or imposed upon.Tenant's business operations, Tenant's leasehold interest or
based on Tenant's use or occupancy of the Premises, or Tenant's fixtures, furnishings, equipment, leasehold
improvements, inventory, merchandise, and personal property located in the Premises (whether or not title shall
have vested in Landlord pursuant to any provision hereof). Whenever possible,Tenant shall cause all such items to
be assessed and billed separately from the property of Landlord and other parties. If any such items shall be
assessed and billed with the property of Landlord or another party,Landlord shall include the same or an appropriate
portion thereof in Taxes,or shall reasonably allocate the same or an appropriate share thereof between Tenant and
such other party(and Tenant shall promptly pay the amount so allocated to Landlord).
ARTICLE 34: AMERICANS WITH DISABILITIES ACT
The parties acknowledge that the Americans With Disabilities Act of 1990(42 U.S.C. § 12101 et seq.)and
regulations and guidelines promulgated thereunder,as all of the same may be amended and supplemented from time
to time (collectively referred to herein as the "ADA") establish requirements for business operations, accessibility
and barrier removal, and that such requirements may or may not apply to the Premises and'Center depending on,
among other things, (1) whether Tenant's business is deemed a"public accommodation"or"commercial facility,"
(2) whether such requirements are "readily achievable," and (3) whether a given alteration affects a "primary
function area" or triggers " path of travel" requirements. The parties hereby agree that (a) Landlord shall be
responsible for ADA Title III compliance in the Common Areas, except as provided below; (b) Tenant shall be
responsible for ADA Title III compliance in the.Premises, including any leasehold improvements or other work to
be performed in the Premises under or in connection with this Lease;and(c)Landlord may perform,or require that
Tenant perform, and Tenant shall be responsible for the cost of, ADA Title III "path of travel" requirements
triggered by alterations in the Premises. Tenant shall be solely responsible for requirements under Title I of the
ADA relating to Tenant's employees.
ARTICLE 35: REAL ESTATE LEASING COMMISSIONS
Tenant represents•and warrants to Landlord that Tenant has had no dealings with any broker or agent in
connection with this Lease,other than CBRE I MEGA and Tenant agrees to indemnify and hold Landlord harmless .
from and against any and all claims, liabilities and expenses (including, but not limited to, reasonable attorneys'
fees)imposed upon,asserted or incurred by Landlord as a consequence of any breach of this representation. Tenant
further agrees that Landlord shall have no obligation to pay (or reimburse Tenant) for any real estate commission,
finder's fee or other remuneration payable to any broker,consultant or lawyer contacted or retained by Tenant or its
affiliates in connection with the renewal or extension of this Lease.
DOCS!1923301.627
ARTICLE 36: RELOCATION OF PREMISES
In the event of an expansion,renovation or remerchandising of the Center in the vicinity of the Premises,
Landlord may elect,by giving notice of such election to Tenant, to cause Tenant to.relocate its business during the
Term of this Lease at Landlord's reasonable expense, within ninety (90) days after notice to do so, to another
location within the Center, comparable in size to the Premises, mutually agreed upon by Landlord and Tenant.
Within sixty (60) days after any such notice shall be given, Landlord and Tenant shall execute and deliver an
amendment to this.Lease which shall substitute a description of the premises to which Tenant is to be_relocated for
the description of the Premises contained herein and shall modify Tenant's Gross Rentable Area accordingly;
otherwise all of the terms and conditions of this Lease shall be applicable to Tenant's occupancy of the new
premises.
If'Landlord and Tenant cannot agree on a new location within such sixty (60) days after notice of the
exercise by Landlord of its relocation option described in the preceding paragraph, then.Landlord may elect to
withdraw its notice requiring Tenant to relocate its business,in which event Tenant shall remain in possession of the
Premises and this Lease shall remain in full force and effect. If Landlord shall not elect to withdraw its notice
requiring Tenant to relocate its business,the Term shall terminate on the ninetieth (90th) day after such notice, in
which event Landlord agrees to pay to Tenant, provided Tenant is not in default under this Lease,and, provided
Tenant shall have furnished Landlord with the statement referred to in the last sentence of this paragraph,an amount
equivalent'to the unamortized value of Tenant's.leasehold improvements which were installed in the Premises at
Tenant's sole cost and expense. Said amortization shall be determined on the straight line depreciation method
allowed by the Internal Revenue Code of 1986(as amended) assuming a depreciation period commencing with the
placement in service of such leasehold improvements and ending on the Termination Date. Payment of the amount
equivalent to the unamortized value of Tenant's leasehold improvements will be made to Tenant within thirty(30)
days after Tenant shall have vacated the Premises in accordance with the terms of this Lease,provided that Landlord
shall have the right to deduct therefrom any amounts due Landlord from.Tenant pursuant to this Lease. For
purposes of this.Section,"Tenant's leasehold improvements"shall include partitioning,electrical wiring,plumbing
(other than plumbing fixtures),painting,wallpaper, storefront and other permanent improvements installed, affixed
or attached in or to the Premises, but shall not include (x) Tenant's inventory or stock in trade. (y) such trade
fixtures,electrical fixtures,equipment or apparatus as are removable by Tenant at the expiration of the Term,or(z)
Landlord's fixtures or other improvements installed by or at the expense of Landlord. In order for Tenant to be
entitled to payment of the unamortized value of its leasehold improvement as set forth in this paragraph, Tenant
shall, within sixty (60) days'after commencement of the Term, furnish to Landlord a statement, signed by an
independent certified public accountant,setting out in detail the cost of Tenant's leasehold improvements.
If this Lease shall be terminated pursuant to this Article,the rights and obligations'of the parties hereunder
shall cease as of the date specified herein. No further documentation shall be required to effect the termination of
this Lease,but each party agrees that,upon the request of the other party to:do so,it shall execute,acknowledge and
deliver an appropriate instrument evidencing such termination prepared by or at the expense of the party requesting
the same.
ARTICLE 37: PARKING
Tenant and its employees shall park their cars and other motorized vehicles in areas as designated by
Landlord or Landlord's agent from time to time. Landlord or Landlord's agent shall furnish Tenant with a map of
available parking areas and charges,if any,therefor,which charges shall be based upon the location of the selected
parking areas and are subject to change from time to time. Anything in this Lease to the contrary notwithstanding,
in the event Tenant desires that Tenant's employees park in one of the parking garages serving the Center
(collectively,the"Parking Garage"), then Tenant.shall provide Landlord written notice thereof,which notice shall
contain the name(s)and vehicle license number(s)of any Tenant employees which intend to use the Parking Garage.
Landlord shall provide monthly parking to such Tenant's employees and Tenant shall pay to Landlord a fee
("Parking Fee") for each Tenant employee vehicle parking in the Parking Garage. For the first Lease Year, the
Parking Fee shall be equal to Ninety-Five and 00/100 Dollars ($95.00)per calendar month,per vehicle. For each
Lease Year thereafter, the monthly Parking Fee shall be the then current annual Parking Fee for similar parking
spaces in the Center; provided, however, in no event shall the Parking Fee for such Lease Year be less than the
Parking Fee payable by Tenant immediately prior to commencement of the applicable Lease Year. Notice of any
DOCS/1923301.628
such increase shall be given by Landlord to Tenant not later than, ninety (90) days prior to the beginning of the
ensuing Lease Year,and if no such notice is given,the parking charge for the ensuing Lease Year shall remain the
same as for the preceding Lease Year. The Parking Fee shall be payable as additional Rent and shall be payable at
the same time and in the same manner as Rent set forth in Section 7.1, or at Landlord's election, the Parking Fee
shall be payable directly to the management company operating the Parking Garage. Tenant also shall furnish to
Landlord or its designated agent the state automobile license numbers assigned.to Tenant's vehicles and those of all
its employees. Following at least one(1)prior written notice of violation,Landlord.or Landlord's designated agent
shall have the right to bill Tenant a fee of Twenty Five and.00/100 Dollars ($25.00)per day per vehicle parked in
violation of this Section, which charge shall be deemed to be additional Rent. In addition, Landlord or its
designated agent shall have the right to cause such cars parked in violation of this Section to be towed from the
Center at the sole cost and expense of Tenant. Tenant shall use Tenant's best efforts-to keep its employees, during
their working hours, from parking in the diagonal metered parking spaces on Farnam Street between Turner
Boulevard and 34th Street,or in the diagonal Metered parking spaces in the Turner Park ring road.
Tenant agrees and acknowledges that Tenant's customers and invitees shall have the non-exclusive right,
subject to payment of fees ("Customer Parking Fees"), and subject to the rules and regulations established by
Landlord from time to time,to use the Parking Garage. Tenant:acknowledges that the Customer Parking Fees are •
subject to change and may require Tenant to participate in a validation program. Except as expressly provided
above,neither Tenant,nor its employees shall use any parking spaces in the Parking Garage marked or designated as
reserved parking spaces:
ARTICLE 38: PATRIOT ACT
Tenant hereby represents and warrants to Landlord that neither Tenant nor any of its respective.officers,
directors,shareholders,partners,members or affiliates is or will be an entity or person:(i)that is listed in the annex
to,or is otherwise subject to the provisions of,Executive Order 13224 issued on September 24,2001 ("EO 13224");
(ii)whose name appears on the United States Treasury Department's Office of Foreign Assets Control ("OFAC")
most current list of"Specifically Designated National and Blocked Persons"(which list may be published from time
to time in various mediums including, but not limited to, the OFAC website,http:www.treas.gov/ofac/tl Isdn:pdf)
(the "OFAC List"); (iii) who commits, threatens to commit or supports"terrorism,"as that term is defined in EO
13224;or(iv)who is otherwise affiliated with any entity or person'listed above.
ARTICLE 39: INTERPRETATION AND CONSTRUCTION
39.1 Reasonable Defined. Whenever a party under this Lease must act reasonably or with reasonableness,
reasonableness under all such circumstances shall mean on the basis of rational,'objective facts and information
sought and considered in good faith in order to make a decision on the matter at hand which adequately protects the
interests of the party making the decision. Moreover,it is the intent and purpose of the parties that no judge,hearing
examiner or arbitrator shall substitute his or her judgment for that of Tenant or Landlord hereunder,unless clear and
convincing evidence exists which shows that such party is not acting:in good faith.
39.2 Waiver. The waiver by Landlord or Tenant of the breach of any term,covenant or condition in this Lease
shall not be deemed to be a waiver of any subsequent breach of the same or any other term,covenant or condition.
No covenant,term or condition of this Lease shall be deemed to have been waived,unless such waiver-is in writing
signed by the party charged therewith.
39.3. No Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser amount than the
actual Rent and other charges herein reserved shall be deemed to be a compromise or agreement to accept such
lesser sum in full satisfaction,nor shall any endorsement or statement on any check,or in any letter accompanying a
check be deemed an accord and satisfaction as to such lesser amount.
39.4 Severability. If any term, covenant or condition of this Lease or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, the remainder of this Lease or the application of such
term, covenant or condition to persons or circumstances other than those as to which it is held invalid or
DOCSl1923301.629
•
unenforceable,shall not be affected thereby;and each term,covenant and condition of this Lease shall be severable,
valid and enforceable independently to the fullest extent permitted by law.
39.5 Survival of Tenant's Obligations. All obligations of Tenant which by their nature involve performance,
in any particular,after the end of the.Term,or which cannot be ascertained to have been fully performed until after
the end of the Term,shall survive the expiration or termination of this Lease. Likewise,utility bills,Taxes and other
items payable by Tenant hereunder,the amounts of which may not have been ascertained or billed to Tenant upon
the expiration or termination date,shall nonetheless be payable in full by Tenant within ten(10) days after written
notice thereof from Landlord.
39.6 No Partnership. Nothing in this Lease shall be deemed or construed by the parties hereto,nor by any third
party,to create a relationship between the parties hereto other than that of Landlord and Tenant,nor does Landlord
in any way or for any purpose become a partner in the conduct of Tenant's business, nor a joint venturer or a
member of a joint enterprise of any kind with Tenant.
39.7 Governing Law and Venue. This Lease shall be governed by and construed under the laws of the state in
which the Premises are located,and any proceeding arising out of this.Lease shall be brought in a court located in
the state in which the Premises are located and having jurisdiction for the city and county where the Premises are
located. By executing and delivering this Lease, Tenant hereby irrevocably and unconditionally submits to the
personal jurisdiction of such court and agrees not to assert in any proceeding before any such court, by way of
motion,as a defense or otherwise,any claim contesting or challenging the personal jurisdiction of such court.
39.8 Non-Binding Effects and Amendments. The submission of this Lease for examination or execution shall
not constitute a reservation or an option for the Premises,and this Lease shall become effective only upon execution,
delivery and acceptance hereof by both parties. Except as otherwise expressly provided herein, no subsequent
alteration, amendment, change or addition to this Lease, nor any surrender of the Premises, shall be binding upon
Landlord or Tenant unless reduced to writing and signed by them.
39.9 Headings. The article and section headings used throughout this Lease are for convenience of reference
only and shall in no way be held to-explain,modify,amplify or aid in the interpretation,construction or meaning of
the provisions of this Lease.
39.10 Entire Agreement; Amendments. This Lease comprises the entire agreement and understanding of the
parties; and all prior negotiations, correspondence,proposals,verbal understandings and other prior documents are
hereby merged into this Lease, which shall not be amended or modified except by 'a formal written instrument
executed by both parties. Tenant hereby acknowledges that: (a) this Lease contains no restrictive covenants or
exclusives in favor of Tenant; and (b)this Lease shall not be deemed or interpreted to contain,by implication or
otherwise, any warranty, representation or agreement on the part of Landlord that Tenant has any exclusive use
rights or that any department store,regional or national chain store,or any other merchant shall open for business or
occupy or continue to occupy any premises in or adjoining the Center during the Term of this Lease or any part
thereof, and Tenant hereby expressly waives all claims with respect thereto and acknowledges that Tenant is not
relying on any such warranty,representation or agreement by Landlord either as a matter of inducement in entering
into this Lease or as a condition of this Lease or as a covenant by Landlord.
39.11 Integration. It is the expressed intent of each party that the provisions of this Lease be construed and
interpreted in harmony as an integrated whole to the maximum extent possible. However,in the event of an.
irreconcilable conflict between the language in the Special Provisions Rider,if any,and the language in the General
Provisions of this Lease,the Special Provisions Rider shall govern.
39.12 Waiver of Jury Trial. LANDLORD AND TENANT HEREBY WAIVE THE RIGHT TO TRIAL BY
JURY IN ANY ACTION,PROCEEDING OR.COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES.
HERETO AGAINST THE OTHER WITH RESPECT TO ANY MATTER WHATSOEVER ARISING OUT OF
• OR IN ANY WAY CONNECTED WITH THIS LEASE,THE RELATIONSHIP OF LANDLORD AND TENANT
HEREUNDER, TENANT'S USE OR OCCUPANCY OF THE PREMISES AND/OR ANY CLAIM OF INJURY
OR DAMAGE.
•
DOCS/1923301.630
39.13 Declaration.Tenant agrees and acknowledges that(i)Landlord intends to subject the Center to the terms
and conditions of a Declaration of Covenants, Conditions and Restrictions or similar recorded document (as
amended from time to time, the "Declaration") providing for, among other things, certain covenants; conditions,
restrictions and easements,and(ii)notwithstanding the later execution and recordation of the Declaration,:this Lease
and Tenant's interest in and to the Premises is and shall be subject and subordinate to the.Declaration.
39.14 Development Matters. Tenant hereby acknowledges and agrees that Landlord shall have the right to
improve or cause to be improved or to convey to or lease to third parties for improvement or otherwise(without the
necessity of obtaining Tenant's consent) certain portions of the Center to which legal or equitable title is held by
Landlord at any time during the Term hereof,as separate and independent developments from the remainder of the
Center, and the same May (at Landlord's sole election) be .excluded from the Center (and the covenants and
restrictions contained herein)for purposes of this Lease,provided that such portions and the remainder of the Center.
shall nevertheless constitute an integrated shopping center. In the event of a sale, transfer or other conveyance of
any portion of the Center,Landlord may enter into an agreement with the transferee granting appropriate easement
and other rights(which may be in addition to,or in substitution of,such rights granted pursuant to the Declaration),
and containing.such other matters as Landlord and such.transferee may agree,to the extent not inconsistent with this
Lease.
39.15 Guaranty. This Lease is guaranteed by the parties set forth in.Section 1;9 above; and.such Guarantor(s)
shall execute a Guaranty in the form attached hereto as Exhibit F("Form of Lease Guaranty")..
39.16 Financial Statements. Within fifteen (15) days after Landlord's request, Tenant agrees to provide
Landlord with a true and correct Financial Statement(as defined in this Section)of Tenant and any Guarantors of
the Lease. If Tenant is a publicly traded company, copies of its annual report delivered to its stockholders shall be
deemed to be Tenant's Financial.Statement for purposes of this Section. Subject to the foregoing, for purposes of
this Section, Tenant's "Financial Statement" shall mean the following documents: (a) a balance sheet; (b) an
income statement; (c)a statement of cash flows; and(d) a statement of owner's equity, each as certified to be true
and correct by Tenant(if Tenant is an individual)or by an authorized representative of Tenant,if Tenant is an entity.
39.17 Exhibits. The exhibits referred to herein and attached hereto are incorporated herein and made an integral
part of this Lease.
39.18 Counterparts. This Lease may be executed in counterparts,all of which taken together shall be deemed
one original, and shall 'be effective upon electronic or physical execution thereof by Landlord or Tenant,
notwithstanding the fact that both of the parties hereto are not signatories to the original or same counterpart. Any
signature of Landlord or Tenant which is delivered by facsimile, photocopy or electronic means (scan and email)
shall be deemed to be an original signature and shall be effective upon receipt thereof.
[REMAINDER OF PAGE BLANK—SIGNATURE PAGE FOLLOWS]
DOCS/1923301.631
WITNESSING THEIR AGREEMENT and intending to be legally bound, the parties have executed this
Lease as of the day and year first above written.
LANDLORD: EAST C PU ALTY,LLC,
a Nebraska ' it 1' bili c m any
By:
Ke eth R.Cook,President
TENANT: RITA PARK, LLC, a Nebraska limited liability company,
DB/A MODERN LOV
By:
[sa C andra Mos tz
Title:
r1
By: ~--�
James'Walmsley
Title: C 0 _Q Ri ti t r
•
DOCS/1923301. 632
•
Special Provisions Rider
The provisions of this Special.Provisions Rider("Rider")arc incorporated as an integral part of that certain
Retail Lease ("Lease") dated March 2018, by and between EAST CAMPUS REALTY, LLC, a Nebraska
limited liability company ("Landlord"), and RITA .PARK'. LLC, a Nebraska limited liability company,
D/B/A MODERN LOVE("Tenant"). Capitalized terms used but not defined in this Rider shall have the meanings
ascribed to such terms elsewhere in the Lease. The rights granted to Tenant in this Rider are personal to Tenant and
shall not be assigned to nor inure to the benefit of any other party.
1. Extension Option. Provided: (a) Tenant is fully operating its business for the Permitted Use in all
portions of the Premises(except as such operation may be temporarily:excused by Force Majeure);and(b)no event-
of Default exists on the date Tenant exercises its right to extend the Term or on the date that the Extension Option
would otherwise commence,Tenant shall have the right to extend the Term for the Extension Option by delivering
notice(the "Option Notice")to Landlord not less than one hundred eighty(180)days prior to the end of the Term
("Exercise Window"). .Provided Tenant has properly and timely exercised the Extension Option prior to the
expiration of the Exercise Window, the Term shall be extended for the period of the Extension Option, and all
provisions of this Lease shall remain unmodified and in full force and effect; provided, however, the annual
Minimum Rent for the Extension Option shall be at the then current annual Minimum Rent rate for new leases for
similar space in the Center according to Landlord's then current rental rate schedule for new leases for prospective
tenants as in effect twelve (I2) months prior to commencement of the Extension.Option; provided, however, the
Minimum Rent rate for such Extension Option shall in no event be less than the Minimum Rent rate payable by
Tenant immediately prior to commencement of the Extension Option. Upon determination of the Minimum Rent.
rate for the Extension Option,at Landlord's option,the parties shall execute an amendment to this Lease to establish
and evidence such Minimum Rent rate. Failure by Tenant to timely exercise its right to the first Extension Option
shall constitute a waiver of the second Extension Option.
2. Improvement Allowance. In consideration of the performance by Tenant of Tenant's Initial Work in the
Premises and the timely fulfillment of all of the terms of this Lease,Landlord agrees to pay to Tenant an amount
(the "Improvement Allowance"), equal to Twenty Thousand and 00/100 Dollars ($20,000.00) toward the "hard
costs"(as defined below) expended by Tenant to construct the leasehold improvements for the Premises and for the
costs of plans and specifications for Tenant's Initial Work. For this purpose,"hard costs"shall mean only the cost
of labor and materials incorporated into the Premises as permanent leasehold improvements. In no event shall the
Improvement Allowance be used toward the cost of Tenant's property. The Improvement Allowance shall be paid
pursuant to those certain Midtown Crossing Tenant Allowance Payment Procedures dated as of April 1, 2011
("Payment Procedures"), which are attached hereto and incorporated herein by this reference. Tenant
acknowledges receipt of the Payment Procedures. Subject to Tenant's compliance with the Payment Procedures for
each and every request of the Tenant Improvement Allowance and provided.Tenant is not in default of the Lease,
the Tenant Improvement Allowance shall be paid to Tenant within thirty (30) days after Tenant's opening for
business, after Tenant has met the Completion/Closeout requirements of the Payment Procedures, and Landlord's
receipt of written request from Tenant,Landlord shall make the final progress payment to Tenant in an amount equal
to the balance of the Tenant Improvement Allowance. In addition to the Improvement Allowance described above,
the Landlord agrees to pay for the Tenant's exterior signage and awning. This shall include labor and materials for
said expense provided that the signage and awning chosen by the Tenant complies with the provisions contained
herein.
3. Additional Space: During the first twelve (12)calendar months following the Commencement Date,the
Additional Space shall not be included in the calculation of Minimum Rent or Tenant's Proportionate Share. If
Tenant elects to secure the Additional Space for the remainder of the Term of the Lease(the"Election to Expand"),
then Tenant shall give Landlord no less than ninety (90) days'written notice prior to expiration of the foregoing
12-month period. Should Tenant exercise the Election to Expand, then Minimum Rent and Tenant's Proportionate
Share shall be adjusted accordingly to include the Additional Space from the expiration of the 12th month for the
remainder of the Term. If Tenant does not timely exercise the Election to Expand, then Tenant shall be deemed to
have waived the Election to Expand and Landlord shall have the right,but not the obligation,at any time during the
remainder of the Term to recapture the Additional Space and to construct, at Landlord's expense, a demising wall
between the Premises and the Additional Space. Landlord shall provide Tenant with at least thirty(30)days prior
written notice prior to commencement of construction of the demising wall. If Tenant has waived the Election to
Rider- 1
DOCS/I 923301.6
•
Expand, the Additional Space shall not be included in the calculation of Minimum Rent or Tenant's Proportionate
Share,even if Landlord has not constructed the demising wall.
4. Exclusive Use. Landlord agrees that so long as Tenant is conducting as a primary business the operation of
a full-service vegan restaurant, Landlord will refrain from leasing any space in the Center to(i)any future tenant or
occupant for the permitted purpose of conducting as a primary business the operation of a full-service vegan
restaurant;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 Center(i.e.any tenant or occupant under an executed
lease, occupancy,purchase agreement or management 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 or management agreement,is in effect,or to the Premises demised thereunder,(b)any tenant
or occupant in the Center leasing or occupying more than 10,000 square feet,or(c)any premises leased or owned by
any of the foregoing;(ii)Landlord's covenant to refrain from leasing space as aforesaid shall expire without further
act of the parties by the date twelve (12) months prior to the expiration of the Term or any renewal or extension
thereof; and (iii) the terms of this Section 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) days. For purposes hereof, the operation of a full-service vegan restaurant as a primary business shall
mean that the greater of ninety percent (90%)or more of Tenant's Gross Sales consists of,or ninety percent(90%)
or more of the Gross Rentable Area of the Premises is dedicated by Tenant to the operation of such primary business
(or the greater of twenty percent(20%)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 twenty percent(20%)
or more of the Gross Rentable Area of such of such future tenant's or occupant's premises is dedicated to the
operation of such primary business).
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. Anything herein to the contrary notwithstanding, Tenant agrees to
indemnify,defend and hold harmless Landlord from and against any loss,cost,damage,expense(including,without
limitation,attorneys' fees and costs),liability,cause of action or settlement arising from or related to any claim that
Landlord's compliance, or attempted compliance, with the terms and conditions of this Section is contrary to any
antitrust or similar law or statute.
In the event Landlord violates the provisions of this Section, and such violation continues for a period of
more than 60 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, in lieu of Minimum Rent, an amount ("Exclusive Alternative
•
Rent")equal to fifty percent(50%)of Minimum Rent,which payment shall commence from and after the expiration
of such 60 day period and shall end on the date such breach is cured. Exclusive Alternative Rent shall be payable at
the same time and in the same manner as provided in this Lease for the payment of Minimum Rent. During any
period that Exclusive Alternative Rent is payable,Tenant shall continue to pay all other additional Rent and all other
charges otherwise payable under this Lease at the times specified herein.
LANDL RD• TENANT:
EAST C PUS REALTY, a Nebraska .mited RITA PARK,LLC,a Nebraska limited liability
liability mp y company,DB/A MO LOVE
By: B .
K nneth R.Cook,President Is handra M sk witz
Title: ()V
By: .
James Walmsley
•
Title: Cv — CU"' `t-Y
Rider-2
DOCS/1923301.6
1 ` '
Midtown Crossing Tenant Allowance_Payment Procedures
As of April 1,2011
Subject to the provisions of the tenant's lease, East Campus Realty LLC shall
advance tenant allowance monies subject to these procedures.
Communication
A copy of these procedures will be provided to each tenant not later than during the initial build out.
coordination meeting.
Project Documentation
As soon as the information is available, the tenant will provide the following information to Project
Advocates,the landlord's.coordinator:
Budget
Overall budget for work and activities needed for the tenant to open successfully,broken out by major line items
including at a minimum:
• Design,legal and other soft costs
• General Construction
• Furniture,Fixtures&Equipment
• Operating Supplies&Equipment
• Pre-opening Expenses
Sources and Uses
Sources and uses sheet,explaining the source of funding for these costs.
Schedule of Values
Schedule of values for the general construction costs.
Spend Projection
Projection of the estimated expenditure of funds over the project's duration.
Construction Documents
Complete set of final construction documents (i.e., .general construction,
architectural, and engineering agreements, plans, specifications, building permits,etc.).
Requests for Advance
Where
Requests for advances of allowance monies will be submitted to the landlord's
coordinator,Project Advocates as follows:
DOCS/1923301.6
Project Advocates
Attn:Rob Zimmerman
c/o East Campus Realty,LLC Mutual of Omaha
Plaza, 1st Floor
Omaha,NE 68175
When
The landlord processes advances on a monthly cycle. To be funded at the end
of a month,requests for advances containing all required documentation must be received by the first day of the
month. Out of cycle requests will be processed in the next month.
Required Documentation
Requests forr advances must include the following:
I. Signed acknowledgement by tenant stating that all amounts invoiced were properly paid or incurred as part
of the project and are eligible for funding pursuant to the lease.
2. A complete list of expenses to be funded,.along with supporting back-up(copies of invoices, paid
receipts, etc.). Documentation must provide sufficient itemization and/or detail to provide a clear
understanding of what work was performed and who performed it.
3. For general construction costs:
a. General contractor's sworn statement and schedule of values;and
b. Architects certification
4. Waivers of lien from contractors,architects and engineers.
5. Remittance address on the invoice(name and address).
6. Recap of previous payments, requested current payment and remaining allowance balance.
Failure to submit appropriate requested documentation could result in rejection of all or a portion of the submitted
amount.
Inspection of Premises
Landlord's representatives will inspect the tenant's premises on.a.regular basis in conjunction with each request
for advance received from tenant. The cost of such inspections (if any) shall be paid for by the tenant, if
permitted by lease.These inspections are for the landlord's benefit only and do not relieve the tenant from any
responsibility or obligation.
Completion/Physical Close-Out
Inspection/Punch List
1. The tenant will promptly notify the landlord when the premises has been substantially completed.
Promptly following receipt, the tenant shall provide the landlord's coordinator with copies of all
temporary and final certificates of occupancy for the premises.
2. Upon substantial completion,the landlord's representatives will inspect the premises to confirm that:
DOCS/1923301.6
• The space has been constructed substantially in conformance with the project's retail design
criteria and the landlord-approved construction documents.
• The quality of the construction is consistent with the overall quality of the project.
• The landlord may authorize its base building design consultants to inspect
specific components of the tenant's .construction. The cost of such inspections (if any) shall be.
paid for by the tenant, if permitted by lease.Inspections are for the landlord's benefit only and do not
relieve the tenant from any responsibility or obligation.
3. Landlord's coordinator shall produce a punch list of all non-conforming or incomplete tenant work: The
coordinator will communicate the punch'list to the tenant and will 'review all specific line items
with 'the tenant's representatives,establishing completion target dates where practical:
4. Landlord's coordinator shall continue to monitor tenant's punch list completion, and shall notify
Landlord of any continuing deficiencies. To the extent that the tenant continues to be non-
compliant after repeated communication from the coordinator, the landlord may notify its property
manager, who will provide tenant with a formal notice of default under terms of the lease.
5. For certain tenant uses that generate significant noise that may, in the opinion of landlord's
coordinator, disturb the residential use component in the floors above, the coordinator may authorize
acoustical monitoring by landlord's acoustician. In. the event any such acoustical monitoring
indicates the need for remedial action in the tenant's premises,Landlord's coordinator will notify the
tenant of the results of the acoustical testing and assist the tenant in developing a plan to bring
the space into an acceptable noise generation level. Thereafter, landlord's coordinator will monitor
the tenant's compliance in the same manner as punch list completion,including lease default
notice if necessary.
Completion/Financial Close Out
1. Upon final completion, the tenant shall submit all final financial close-out documentation to the
landlord's coordinator for review and filing with the landlord's property and accounting records.
2. Documentation requirements include,at a minimum:
a. Tenant's final statement of total project costs, broken out by major
line items,at a minimum: •
• General construction costs
• Design,legal and other soft costs
• Furniture,Fixtures&Equipment
• Operating Supplies&Equipment
• Pre-opening expenses
b. General contractor's final sworn statement and schedule of values,
showing the final value of the work,plus a final waiver of lien.
c. Schedules of values(or final invoices showing detail of work items)plus final waivers of
lien from all subcontractors, design consultants, etc. who have completed work valued
at least $5,000(or $10,000 where total build-out value of the. space exceeds
$500,000).
d. Architect's certification (either on the cover of general contractor's sworn statement or as a
separate statement in form satisfactory to landlord's coordinator) as to the completion of
the project in conformance with the approved construction documents.
e. A listing of all Furniture, Fixtures & Equipment purchased for the
DOCS/1923301.6
facility, including final invoices supporting the value of each item over$1000. Tenant
shall certify to the landlord that all items listed are in fact being utilized within the leased
premises. The landlord's coordinator shall confirm the presence of FF&E items in the
premises as appropriate.
f, If pursuant to the lease, budget and sources and uses outline,advances from the
allowance have funded items outside of or beyond general construction costs (e.g.,
design services, legal expenses, start-up payroll, training, travel, relocation expenses,
opening inventories and supplies, etc.), then the tenant shall provide final invoices and
(where applicable)lien waivers from each payee.
3. ECR.reserves the right to request additional documentation or information as required by internal
auditing requirements and to ensure that the appropriate documentation is maintained by ECR.
DOCS/1923301.6
•
•
EXHIBIT A •
SITE PLAN
DODGE•ST. • „tiW r DODGEST e-
r..Y '•..,4 �.':-�S: PROJECTCATI
ADVOCATES( .T. y>�q Y-- - -
^ SrT
WONINE NEWS HOTEL....__._ —j w,.J � ram:, fin �i7�`• _I" tr't, .+e
NEIGHDORHOOD r.te+• �i
"a
sill.
L DEII M. ,`- ~�: • ` '�- °
PROOC I Y/IHGS PArs 11 � .• ,v t:,G e
CANTINA - z! ; t.,� •y.• sy
11 {.AREDO
GARAGE PARKING �.`r= • l a ' 1!..�T-Pf" - _ fin? 3
3 HOURS FREE ••:Etx ►„ , , :`;k . ,e .:..{ y -7 "— ,;
5_ w J. f o C� r . y
A s! * xk -
THIRST TE4. _.i '' '1 ��� �� Q 1
•i � . ..,a. s'y,, ;� { o • spa
CRAVE} < S �`• " 'e.it t 6^:.no • ,F N y�r .4 t jY
b t�.Kr SLACK OAKI
9 .'+./.i+ y j '` r .., ' `n
PRAIRIE. GRILL ..=ry.or�-{7.Q4: !' - �$
LICE t �• ' T r
FASHION i" DELLA COSTA -t.R n fi n c ;;
APT.LEASING It CLEANERS Y }N• k-.. �� i�'
L MGMT.OT TICE' +mow/hit "77' ' -' ` . ,, , Lf Tye
COLD STONE/ j1 t ti 2 s•,t, Y • •
Tt ,Y
ROCKY 1 Y t'. A ''1'�.
M R4 CNOC t x
HUTCH' GARSO'S SALON 2 THE GREY I : t fF �' 'or ' •i 441,
FAR.NA�1 ST. ....-. C E PLUME T 3G 1 = x ? 1' r
E P! MAKOVICKA L f rS v <,I a j, CALLAHAN FINANCIAL# ••F!
n�' PHYSICAL THE 2 A o �Y j,9 - PLANNING i.
...............
•.. —_ COMINGi ( 1 i�� I CHICAGO DAWG•c
LE ADSEL LY ! 1lJnor
y,. F SOON J I 1 -i
C & •
II. ' i �3 j I --HOUSE .i
THE ACTERNOON' Q m'a •
-. i, g,
PICKLEMAMS * -.i MARCUS 24 C eO C 1 ___
III..+ CINEMA 31 iF.
1 FNTIAE T.DiLOM •
; a Z '
°GARAGE PARKING 3 HOURS FREE !m
•
DOCS/1923301.6 A-1
•
EXHIBIT B
CONSTRUCTION EXHIBIT
This Exhibit is attached to and forms a part of that certain Retail Lease("Lease")dated March 2,2018,
between East Campus Realty,LLC,("Landlord")and Rita Park,LLC,d/b/a Modern Love("Tenant"). This Exhibit
is subject to and shall be supplemented by the Design Criteria(defined below)for.the Center.All terms used in this
Exhibit but not defined in this Exhibit shall have the meanings provided for them in the body ofthe Lease:The term
"Tenant's Work" shall mean any work-performed by Tenant, whether Tenant's Initial.Work or work subsequent
thereto. The term"Tenant's Initial Work"shall mean work performed by Tenant prior to opening for business in the
Premises: The term"Lease Outline Drawing" shall mean the drawing described in Section III,paragraph 3 of this
Exhibit.
Attachment 2 hereto contains special provisions that pertain to most or all of the tenants in Building 7 in the
Center, or to certain types of tenants in the Center, or to tenants in certain locations in the Center, as noted in
Attachment 2.With respect to such tenants,the provisions on Attachment 2 shall govern in case of any conflict with
the other provisions of this Exhibit
SECTION I. DELIVERY OF PREMISES BY LANDLORD,
l. Except as may be otherwise specifically.set forth in this Lease,Tenant shall take the Premises in
an"as is"condition and all work to be performed at the Premises shall be performed by Tenant at Tenant's expense:
2. Landlord does not warrant any information Landlord may have furnished or will furnish Tenant
regarding the.Premises: It shall be Tenant's responsibility to verify existing field conditions of the Premises.
Tenant's failure to verify the existing conditions of the Premises shall not relieve Tenant of any expenses or
responsibilities resulting from such failure, nor shall Landlord have any liability or obligations to Tenant arising
from such failure.
•
3. Landlord has provided or will provide the current kitchen in the Premises in good working order at
Landlord's expense("Landlord's Work").
4. Tenant is responsible to obtain final Certificate of Occupancy and pay associated fees to the.City
of Omaha.
5. Tenant is directed to refer to Lease Outline Drawing for specific conditions.
SECTION II. TENANT'S WORK
PART ONE. General Criteria for Tenant's Work
1. Tenant shall construct improvements in the Premises as provided in this Exhibit and in as provided
in other relevant provisions of the Lease, including Articles 8 and 9. In the event of any conflict between the
provisions of this Exhibit and.other.provisions of this Lease,the provisions of this Exhibit shall control.
2. Tenant shall perform Tenant's Work,in accordance with all Laws including,without limitation,the
building, fire and life safety codes of the jurisdiction of the City of Omaha and all requirements of the Americans
with Disabilities Act.
3. Tenant shall prepare its plans and specifications for. its Work in accordance with this Exhibit,
Landlord's design criteria for the Center,as the same may be revised or supplemented from time to time,and such
other criteria as Landlord may furnish Tenant(such criteria herein referred to as the"Design Criteria").The Design
Criteria contains specific criteria for the design and performance of the Work, including the mechanical and
electrical work.The Design Criteria may contain"Standard Project Details"as issued from time to time with which
Tenant shall.comply.
DOCS/1923301.6 B-1
4. Tenant's Initial Work and, except to the extent as may be specifically otherwise provided in this
Lease, all subsequent work in the Premises which Tenant may wish to perform, shall be subject to the advance
Written approval by Landlord.
5. Tenant shall, prior to commencement of Tenant's Work, obtain all required building and other
permits at Tenant's expense and post said permits at the Premises as required.
6. The loads imposed by Work at the Premises (including dead and live loads)shall not exceed the
allowable load capacity of the existing structural systems and components thereof:Suspension or anchoring to the
upper floor deck above shall be limited to ceilings, conduit, and piping. All other loads shall be supported by the
Tenant's floor or by means approved by the Landlord's design engineer. -
7. Tenant shall use only new materials for the Work,including all improvements, equipment, trade
fixtures and all mechanical,plumbing and electrical systems and components.
8.. Tenant shall make no marks:or penetrations into the roof, upper floor decks, exterior walls, or
floors,unless approved by Landlord in advance.
9: If any Tenant's Work to connect to Landlord's utilities requires access through the premises'Of any
other tenant or otherwise will affect any other tenant and Landlord has approved such work, Tenant shall be
responsible for coordinating such Tenant's Work with such other tenant, restoring said tenant's premises to its
original condition following the Tenant's Work, and compensating said other tenant for any costs incurred by it on
account of such Tenant's Work.
10. If any of Tenant's Work necessitates any special work outside the Premises, such as, but not
limited to,increasing the size of electric conduit or adding or relocating water service or sanitary service,Landlord,
at Landlord's election, may perform such work and Tenant shall reimburse Landlord the cost•thereof plus 15%
thereof for administration,or require Tenant perform the work at Tenant's cost.
11. Tenant shall retain Landlord's identification signs or; at Tenant's cost, provide new signs for
Landlord's utilities;valves,and other such devices'in the Premises.
12. Landlord may at its election require any aspect.of Tenant's Work to be tested, and Tenant shall
cooperate with any such testing procedure.
13. No approval from Landlord with respect to any aspect of Tenant's Work shall be valid unless in
writing.
PART TWO, Certain Specific Criteria for Tenant's Work •
A. Walls;Partitions:Doors;Floors.
1. Tenant shall install floor covering in the Premises. Tenant shall•not use flooring,tile or adhesives
at the Premises containing asbestos or similar material.No vinyl flooring or similar'materials shall be allowed in the
sales area of the Premises.
2. Tenant shall paint all wall treatments.
3. Commercial grade finish hardware,labeled where required,shall be used throughout.
4. If Tenant has a door leading to the exterior or a service corridor,Tenant shall install on the door an
identification sign setting forth Tenant's name and address number.
B. Structural.
DOCS/1923361. 6B-2
1. Without limitation, any alterations, additions or reinforcements to Landlord's structure, piping,
conduit or duct work to accommodate Tenant's Work,or any work that may otherwise affect Landlord's structure,
including mezzanines,shall not be performed without in each instance the prior written approval of Landlord.
2. Upon completion of Tenant's Work,Tenant shall leave Landlord's structure as strong or stronger
than the original design and with finishes unimpaired.
3. Tenant shall submit detailed and certified engineering documents to show any proposed work
involving Landlord's structure, and Landlord may require said documents to be reviewed by Landlord's structural.
engineer at Tenant's cost. Further, Landlord may require Tenant to use, at Tenant's cost, Landlord's structural
engineer to design Tenant's structural modifications. Landlord may also elect to require that any structural
modifications proposed byTenant be performed by Landlord's contractor at Tenant's cost.
4. No welding to the building structure shall be permitted.
5. Channeling core drilling or cuffing of the suspended structural slabs shall not be permitted(except
coring of the slab shall be permitted subject to Landlord's prior written approval of core size and location).
6. Support of all mechanical equipment shall be subject to Landlord's advance written approval.If in
the Landlord's opinion structural analysis of the method of support is necessary, Tenant shall at Tenant's expense
utilize Landlord's structural engineer to evaluate or design the support.
C. Roofs.
1. Any work affecting or pertaining to the roof, including roof penetration and installation of
structural supports,curbing:and flashing on or to the roof,shall be subject to Landlord's prior written consent and,if
consented to, shall be performed only in the manner specifically approved by Landlord. All such approved work
(including;repair or maintenance of such work) shall be performed by Landlord's designated roofing contractor at
Tenant's expense.
D. Storefront.If Tenant desires to modify or alter the storefront provided by Landlord, Tenant may
do so consistent with the Design Criteria,provided Tenant has Drawings and specifications for such modifications
or alterations and obtained Landlord's prior written consent for the work described therein. If Tenant modifies the
storefront,Tenant's modified storefront shall be self supporting and shall be designed and constructed to transfer all
loads to the concrete slab in the manner so indicated in the.Design Criteria. Tenant shall install cloth awnings on
existing frames or canopies in conjunction with the Tenant's storefront construction as required by the Design
Criteria.
E. Furniture, Fixtures and Equipment. Tenant shall install its furniture, fixtures and equipment,
including,without limitation,Tenant's cash-wrap system,in the Premises.
F. Mechanical.
1. Gas Piping: Tenant shall provide gas piping required in the Premises downstream of the Landlord
provided service and shut off valve located in the Premises. The gas meter for the Premises shall be provided by the
Tenant. See the Lease Outline Drawings for location of the gas service to the Premises.
2. Fire Protection: The Tenant shall provide all piping, sprinkler heads, and other accessories
required to provide a fire protection system for the Premises in accordance with NFPA 13 and the authority having
jurisdiction. The Tenant shall connect to the Landlord provided fire sprinkler main located in the Premises. See the
Lease drawings for location of the fire sprinkler main. A sprinkler grid installed by Landlord may or may not exist
within the Premises.. If a sprinkler grid is installed,the Tenant shall be responsible for making all modifications to
it such that it will be adequate for the Tenant's use and that it is in compliance with all applicable codes and
requirements of the authority having jurisdiction. If a sprinkler grid is not installed by Landlord,Tenant shall install
DOCS/1923301.6B-3
a sprinkler grid that is adequate for the Tenant's use and in compliance with all applicable codes and requirements of
the authority having jurisdiction.
a. Tenant's fire sprinkler contractor shall be approved by the Landlord.
b. Restaurant tenants shall provide a kitchen exhaust hood fire extinguishing system in
accordance with NFPA 17A and the authority having jurisdiction.
c. All fire sprinkler work shall be done without interrupting service to the remainder of the
building_ All sprinkler work shall be coordinated with other tenants and residents of
the building.
d. All fire sprinkler work, including system design, equipment, materials, and installation
shall..be in accordance with the requirements of, and be approved by the.Landlord's
insurance underwriter and the authority having jurisdiction.
e. Tenant's fire sprinkler contractor shall prepare shop drawings and plans of the.proposed..
work, with appropriate calculations and submit them to the Landlord,Fire Marshall and
Landlord's insurance underwriter for approval prior to commencing work. Approved
shop drawings and plans shall be filed with the Landlord prior to commencement of fire
sprinkler system construction. Upon completion of work,copies of the material and test
certificates shall be filed with the Landlord and all required agencies prior to occupancy
of the Premises.
f. Should Tenant's Work or use of the Premises require a main larger than the main
provided by the Landlord, the Tenant shall be responsible for the cost of providing the
larger main to meet its requirements: See the Lease Outline Drawings for size of the.
existing fire sprinkler main in the Premises.
g. The introduction of stock, furniture,fixtures,equipment or other combustible material to
the Premises is prohibited until the fire sprinkler system is placed in service. Testing of
the fire sprinkler system as required by the Fire Marshall shall be completed before
Tenant opens for business in the Premises.
h. Landlord's insurance underwriter shall have the right to inspect the fire sprinkler system
and its component parts. The system shall, at all times, comply with the reasonable
requirements of the insurance underwriter. Any alterations, improvements, repairs, or
maintenance required by the underwriter shall be the Tenant's sole responsibility and
shall be performed promptly at Tenant's expense upon notice of the necessity for such
work.
G. Electrical
Tele/Comm: Tenant shall make arrangements with telephone carrier and provide all telephone system
panels, outlets and conduits within the Premises and wire to the distribution point within the Premises: All
tele/comm. wiring within the ceiling of the Premises shall be installed to conform to applicable requirements of the
Law for a ceiling return air plenum if one exists.
H: Security Devices. Tenant's freestanding security devices,if any, shall not be installed or placed in
operation unless the size,location and design of such security devices are shown on the Working Drawings(defined
in Section III, paragraph 1) and have specifically been approved by Landlord. Any such device installed without
such prior consent shall be subject to removal by Landlord without notice to Tenant or liability therefor.Landlord's
approval of the Working Drawings shall not be deemed as its approval of such security devices unless such devices
are specifically shown as approved on said Working Drawings. Surface mounted raceways or conduits will not be
allowed.
DOCS/1923301.6B-4
SECTION III. PROCEDURES AND SCHEDULES FOR THE COMPLETION OF PLANS AND
SPECIFICATIONS
1. All prints, drawing information, and other materials to be furnished by Tenant as required
hereinafter,shall be delivered.to Landlord in care of Project Advocates,Attn:Rob Zimmerman,do East Campus
Realty,Mutual of Omaha Plaza—1n Floor,Omaha,NE 68175,or such different address as Landlord may designate
to Tenant from time to time.Tenant's final drawings,specifications and finish schedule are herein referred to as the
"Working Drawings".The Working Drawings are sometimes referred to herein as the"Drawings"
2. Tenant shall, at its sole expense, utilize the services of an architect and engineer to prepare all
Drawings. Said architect and engineer shall be registered in Nebraska.All Drawings shall be submitted to Landlord
for approval in the form of two(2) sets of prints (1 full size and 1 half-size). In addition AutoCAD files shall be
submitted on.disk(CD or DVD). Tenant shall,with the Drawings,furnish sample boards indicating materials,color
selections and finishes to be used. Tenant shall also submit to Landlord such further information on Tenant's
planned electrical and mechanical usage at the Premises as requested by Landlord (herein referred to as
"Mechanical/Electrical Design Submittal Forms").
3. Landlord will furnish Tenant a drawing that shows the dimensions and square footage of the
Premises (the "Lease Outline Drawing"). The Lease Outline Drawing may also show the location of certain
existing base building improvements,such as utility lines. Landlord shall furnish Tenant the Design Criteria for the
Center. If,pursuant to the foregoing,Tenant is supposed to receive the Lease Outline Drawing and/or the Design
Criteria, and has not received the same by the date this Lease is fully executed, Tenant shall promptly notify
Landlord and Landlord shall furnish said item(s) to Tenant as soon as reasonably possible: Landlord does not
warrant the information shown on the Lease Outline Drawing,or on any other drawings it furnishes to Tenant with
respect to the Premises. .
4. Tenant shall submit the Working Drawings promptly at least thirty (30) days prior its intended
start date of its Work and, in no event, later than four(4) weeks after receipt of the Lease Outline Drawing and
Design Criteria. The Working Drawings shall show a general rendering of the storefront modifications, interior
layout, signage,and any other work Tenant intends to perform. With the Working Drawings Tenant shall submit a
color rendering of Tenant's storefront with any proposed modifications, Tenant's proposed signage, and a sample
board of the materials to be used in the interior of the Premises. Landlord shall use reasonable efforts to send
notification to Tenant that it approves or disapproves the Working Drawings within fourteen(14)days after receipt
thereof. If Landlord disapproves, Landlord shall specify the reasons for the disapproval. If Landlord disapproves,
Tenant shall within ten (10)days after receipt of Landlord's disapproval, send Landlord revised Working Drawings
addressing Landlord's comments. This procedure shall be repeated until Landlord has approved the Working
Drawings. Landlord may give approval "as noted"in which event the changes noted by Landlord shall be deemed
incorporated into the Working Drawings;provided,if Tenant notifies Landlord within five(5)days thereafter that it
does not accept said changes,then the Working Drawings shall be deemed disapproved on account of the changes
Working Drawings shall include,but not be limited to,the following:
a. Floor and fixture layout plans(Include security system devices)
b. Drawings to reflect any other work Tenant intends to perform(i.e.Additional Lighting)
c. Storefront and interior finish color sample board(maximum size 11"x 17")
d. Awning Drawings
•
e. Exterior Signage Drawings
5. The approval by Landlord or Landlord's agent of any Drawings or of Tenant's Work shall not
constitute an implication,representation or certification by Landlord or Landlord's agent that either said Drawings
or Tenant's Work is accurate, sufficient, efficient or in compliance with insurance and indemnity requirements, or
DOCS/192330i.6B-5
•
any Laws, including but not Iimited to code and the Americans with.Disabilities Act, the responsibility for which
belongs solely to Tenant.
6. In those instances where multiple standards and requirements apply with respect to Tenant's
Work,the strictest of such standards and requirements shall control unless prohibited by applicable Law.
SECTION IV. CONSTRUCTION
1. Tenant may not commence any Tenant's Work until this Lease has been fully executed, Landlord
. has approved Tenant's Working Drawings, all required insurance certificates have been furnished to Landlord, all
building permits have been obtained,and Tenant has complied with all other requirements herein and elsewhere in
this Lease.
2. A representative of Tenant shall meet with Landlord prior to start of construction to discuss
construction-related items. Tenant's representative:shall contact Landlord in advance to schedule said meeting at a
mutually satisfactory time.
3. Without limitation to any provision of this Lease,prior to commencement of any Tenant's Work at.
the Premises Tenant shall furnish Landlord the following:
a. The names, addresses, representatives and telephone numbers of Tenant's general
contractor. Additionally, Tenant shall use reasonable efforts to furnish Landlord such
information forall subcontractors("Tenant's Contractors").
b. Amounts of the general contract and each subcontract.
c. Certificates of Insurance evidencing the insurance required of Tenant and Tenant's
general contractor as provided in this Lease,including this Exhibit B.
•
d. A.copy of the building permit(s)as required.
e. A.detailed construction schedule.
f. If required by Landlord, a,deposit (the "Construction Deposit") to cover damage. to
Landlord's property during Tenant's construction and payment of any charges due from
Tenant. The amount of the Construction Deposit shall be as set forth in Attachment 2.
The Construction Deposit,or the balance remaining, if any, after application pursuant to
the following sentence,shall be returned to Tenant upon completion of all Tenant's Work
in accordance with the approved Working Drawings. Landlord shall have the right to
apply the Construction Deposit to pay for the repair of any damage to Landlord's property
caused by Tenant's contractors or subcontractors or the payment of any charges due from
Tenant.
4. All of Tenant's contractors shall be bondable, licensed contractors, having good labor relations,
capable of working in harmony with Landlord's general contractor and other contractors working in the.Center and.
in the Midtown Crossing at Turner Park residential construction.Tenant shall coordinate Tenant's Work with other
construction work at the Center and in the Midtown Crossing at Turner.Park residential development, if any.
Landlord specifically reserves the right to approve Tenant's contractors. If Landlord does not give Tenant such
approval with respect to any contractor(s) Tenant shall contract with another general contractor and/or
subcontractors(s),as the case may be,for the completion of Tenant's Work.
5. In addition to the items in paragraph 3 of this Section IV above,Landlord may require either or
both of the following:
DOCS/1923301.6B-6
a. Proof in form satisfactory. to Landlord.of Tenant's financial ability to cause Tenant's
Work to be completed and fully paid for prior to Opening for business.
b. A completion bond or an irrevocable letter of credit in Landlord's favor in the amount of
the cost of Tenant's Work which Landlord may draw upon in order to pay the Tenant's
contractors if Tenant fails to pay for:any of Tenant's Work.
6. Tenant's Work shall be subject to the inspection of Landlord's representative from'tinie to time
during the.period in which the Work is being performed.
7. The cost of any work permitted:or required to be performed by Landlord on behalf of:Tenant
under this Exhibit shall become due and payable in full within thirty(3.0) days after Tenant has been invoiced for
same by Landlord and said charges shall be deemed Rent under the Lease.
8. Upon completion of Tenant's Initial Work,Tenant shall notify the management office.Upon said
notification,Landlord's designated representative shall inspect the Premises and,if the Premises are constructed in
accordance with the approved Drawings, said representative shall issue a Letter of Acceptance for the Premises. If
Landlord believes the Premises have not been constructed in accordance with the approved Working Drawings,.
Landlord shall so notify Tenant or Tenant's Contractor. Tenant shall not open prior to Landlord's issuance of a
Letter of Acceptance. Tenant shall furnish Landlord a copy of a certificate of occupancy for the Premises before
Tenant opens for business.
9. All work performed by Tenant during its construction period,or otherwise during the Term,shall.
be performed so as to cause the least possible interference with other tenants, and the Landlord's construction
activities or operation of the property; and Landlord shall have the right to impose reasonable requirements with
respect to timing and performance of the Work in order to minimize such interference.Work causing noise,odor or
vibration outside the Premises shall be performed only during hours approved in advance by Landlord.Tenant shall
take all precautionary steps to protect its facilities and the facilities of others affected by the Work and shall police
same properly. Construction equipment and materials are to be located in confined areas and truck traffic is to be
routed to and from the site as directed by Landlord so as not to burden the construction or operation of the Center or
the residential portion of Midtown Crossing at Turner Park. All Work shall be confined to the Premises. Tenant's
Contractor shall coordinate with Landlord's on-site representative for the delivery and removal of its equipment and.
materials. Landlord shall have the right to order Tenant or any Tenant's contractor or subcontractor who willfully
violates the above requirements to cease work and to remove its equipment and employees from the building.
Tenant's Work shall be properly supervised by a qualified construction superintendent at all times when work is
being performed at the Premises.
10. Contractor Insurance. Tenant shall cause its general contractor and all subcontractors to maintain
during the'construction period the following insurance: (i)commercial general liability insurance,with limits of not
less than $4,000,000 per occurrence (the portion of such coverage over $1,000,000 may be provided under an
umbrella or excess liability policy), for personal injury,bodily injury or death, or property damage or destruction,
arising out of or relating to the contractor's work at or in connection with the Premises,(ii)workers' compensation
insurance with respect to each contractor's workers at the site or involved in the Work, in the amount required by
statute, (iii)employer's liability insurance in the amount of at least$500,000 per accident and at least$500,000 for
disease, each employee, (iv)comprehensive automobile liability insurance covering all owned,hired or non-owned
vehicles, including the loading and unloading thereof, with limits of not less than $2,000,000 per occurrence (the
portion of such coverage over $1,000,000 may be provided under an umbrella or excess liability policy), and (v)
builder's risk property insurance upon the entire Work to the full replacement cost thereof. Landlord, Landlord's
managing agent,and such other parties as are designated by Landlord,shall be additional insureds under(i),(iv)and
(v) above. All insurance required hereunder shall be provided by responsible insurers rated at least A and X in the
then current edition of Best's Key Rating Insurance Guide and shall be licensed in Nebraska. Tenant shall provide,
or cause its contractors to provide, such certificates prior to any Tenant's Work being performed at the Premises.
Such certificates shall state that the coverage may not be changed or cancelled without at least thirty(30)days'prior
written notice to Landlord.All such insurance shall provide for a waiver of subrogation by the insurance carriers.
•
DOCS/1923301. 6B-7
•
Attachment 2 to Exhibit B for
Midtown Crossing
1. Electrical. Landlord shall make available to Tenant electrical service within the Premises from an
electric service distribution and metering center located in a secured Landlord electric room. Service capacity shall
be based on tenant occupancy type as follows:
•
a. Maximum load of 20 watts per square foot of leasable area of the Premises for non=restaurant.
retail tenants.
b. Maximum load of 35 watts per square foot of leasable area of the Premises for restaurant tenants
with seating.
c. Maximum load of 40 watts per square foot of leasable area of the Premises for restaurant tenants
without seating.
If Tenant's total electrical power requirements exceed the maximum allowed service capacity, Landlord
may require Tenant to arrange to obtain power directly from the local utility company at Landlord's designated
location.
2. Sprinkler Drain down.Cost to Tenant per sprinkler drain down:$345.00
3. Construction Deposit. Upon Landlord's approval of the plans and specifications for any alterations
or improvements desired by Tenant in the Premises,a$3,000.00 construction deposit shall be required.
•
DOCS/I923301.613-8
Special Provisions.
Attachment 3 to Exhibit B for Midtown Crossing
1. Grease Trap. Notwithstanding anything contained herein to the contrary,Landlord shall install a
grease waste line from a common grease trap to a location beneath the slab of each restaurant space.Each restaurant
tenant shall connect to such grease waste line at its expense. Restaurants shall also be required to install an
individual grease trap within the Premises as required by the Design Criteria.
2. Waterproofing.Each tenant who has more than an incidental water usage shall be required to
contract with Landlord's designated slab waterproofing contractor to install a waterproof membrane system beneath
the Tenant's finished flooring,which such waterproofing system shall be in accordance with Landlord's standards
and requirements.
DOCSl1923301:6 B-1
EXHIBIT C
RULES
(1) Common Areas. Tenant shall not use the Common Areas, including areas adjacent to the
Premises, for any purpose other than ingress and egress, and any such use thereof shall be subject to the other
provisions of this Lease,including these rules. 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 Center. Tenant shall not allow anything to remain in any passageway,sidewalk,
court, corridor, stairway, entrance, exit, elevator, shipping area, or other area outside the Premises. 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.
(2) Deliveries. Furniture, inventory and all other deliveries may be brought into the Center only at •
times and in the manner designated by Landlord, in compliance with all Laws, and always at Tenant's sole risk.
Landlord may inspect items brought into the Center or Premises with respect to weight or dangerous nature or
compliance with this Lease or applicable Laws. Tenant's use of any freight elevators and loading and service areas
at the Center shall be subject to scheduling by Landlord. Tenant shall not take or permit to be taken in or out of
other entrances or elevators of the Center, any item normally taken, or which Landlord otherwise requires to be
taken,in or out through service doors or on freight elevators. Tenant shall move all inventory, supplies, furniture,
equipment and other items directly to the Premises as soon as the same are received. Any hand-carts used at the
Center shall have rubber wheels and side guards. No other material handling equipment may be brought upon the
Center except as Landlord shall approve in writing in advance.
(3) 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
Article 31 respecting Hazardous Substances. If Landlord designates a service to pick up such items, Tenant shall
use the same at Tenant's cost, and Landlord may require Tenant to contract directly for such service with the
designated service.provider. If Landlord shall provide or arrange for such service,Tenant shall pay to Landlord
Tenant's Proportionate Share of the cost thereof (or such other share as Landlord may fairly and reasonably
determine)on or before the first day of each calendar month in advance, or Landlord may include such charges in
Operating Costs. 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 food stuffs, garbage and refuse shall be stored and
daily removed from the Premises in leak proof containers; and, if there should be any leakage, Tenant shall clean
and remove any evidence of such leakage at its expense.
(4) Pest Control. Tenant shall,at Tenant's cost,select such pest and rodent extermination contractor,
and arrange for pest control at such intervals as may reasonably be required,but in no event less than monthly,or in
the alternative, from time to time. At Tenant's request, Landlord may arrange for pest control (in which case,
Tenant shall pay to Landlord Tenant's Proportionate Share of the cost thereof,or such other share as Landlord may
fairly and reasonably determine, on or before the first day of each calendar month in advance, or Landlord may
include such charges in Operating Costs). Tenant shall provide Landlord with evidence of Tenant's compliance
with this provision within five(5)days after Landlord's written request.
(5) Signs and Display Windows. Tenant shall not place any sign or other thing of any kind outside
:the Premises (including, without limitation, exterior walls and roof), or on the interior or exterior surfaces of glass
panes or doors, except such single sign as Landlord shall expressly approve in writing for or in connection with
Tenant's storefront. 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 the same illuminated each day of the Term 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 Center and shall comply with the Design Criteria
developed by Landlord and previously delivered to Tenant,as amended from time to time. The term"sign"in this
rule shall mean any sign, placard, picture, name, direction, lettering, insignia or trademark, advertising material,
advertising display,awning or other similar item,including Tenant's storefront sign. Blinds,shades,drapes or other
DOCS/1923301.6 C-1
such items shall not be placed in or about the windows in the Premises except to the extent,if any,that the character,
shape,design,color,material and make thereof is first approved by Landlord in writing.
(6) Display of Merchandise. Tenant shall not place or maintain any permanent or temporary fixture
or item or display any merchandise(i)outside the Premises,or(ii)anywhere inside the Premises within six(6)feet
of any entrance to the Premises(except that for any recessed entry of the Premises, Tenant shall not so place or
maintain fixtures within three (3) feet of such entrance). All displays of merchandise shall be tasteful and.
professional.
(7) 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 whatsoever shall be thrown therein.
(8) Grease Traps. Tenant shall properly maintain,clean,repair and replace adequate grease traps. If
Tenant shall operate a restaurant in the Premises, Tenant shall clean all grease interceptors no less than four (4)
times per year. 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. Notwithstanding anything to the contrary contained in these Rules 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. All restaurant tenants shall be required to install a roof protection system approved
by Landlord around all cooking exhaust fan equipment on the roof to protect the roof from grease damage. The
kitchen exhaust fan configuration,fan supports and location shall be subject to approval by Landlord.
(9) 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.Center. 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.
(10) Overloading Floors. Tenant shall not overload any floor or part thereof in the Premises,Building
or Center, including any public corridors or elevators therein,and Landlord may direct and control 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).
(II) 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 therefor, and (ii) advise Landlord as to the combination of any vaults or locks that Landlord permits to
remain in the Premises.
(12) 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.
(13) Energy Conservation. Tenant shall not waste electricity,water,heat or air conditioning,or other
utilities or services, and agrees to cooperate fully with Landlord and comply with any Laws to assure the most
effective and energy efficient operation of the Center.
(14) Food,Beverages,Game and Vending Machines. Except to the extent expressly permitted under
Article 1 of 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
DOCS/1923301.6B-2
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.
(15) 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 Center: If any 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 Center,Tenant shall
immediately close the Premises.and remove or cause to be removed all such employees, agents, contractors and
subcontractors until the dispute"has been settled.
(16) Landlord's Trade Name and Trademarks. No symbol,design,name,mark or insignia adopted
by Landlord for the Center or picture or likeness of the Center shall be used by Tenant without the prior written
consent of Landlord.
(17) Prohibited Activities. Tenant shall not: (i)use strobe,:flashing lights or rotating spotlights in or
on the Premises (or other areas of the 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 outside the Premises.(or other
areas of the Center); (iii)operate any loudspeaker,television set,phonograph,radio,CD player or other musical or
sound producing instrument or device so as to be heard outside the Premises; (iv) operate any electrical or other
device which interferes with or impairs radio, television, microwave,or other broadcasting or reception from or in
the Center or elsewhere;(v)bring or permit any bicycle or other vehicle or dog(except in the company of a blind
party)or other animal, fish or bird in the Center; (vi)make or permit objectionable noise,vibration,smoke,fumes,
vapors or odors to emanate from the Premises or any equipment serving the same; (vii)do or permit anything:in or
about the Premises or any other areas of the 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 Center;(viii)use or permit upon
the Premises or other areas of the Center anything that violates the certificates of occupancy issued for the Premises.
or the 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);(ix)use the Premises for any purpose,or permit upon the Premises
or any other areas of the 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 materials); nor (x) do or permit
anything to be done upon the Premises or any other areas of the Center in any way tending to disturb, bother or
annoy any other tenant at the Center or the occupants of neighboring property. Tenant agrees that Tenant is
responsible for controlling and using best efforts to reduce the noise emanating from its customers, employees and
invitees outside of the Premises, including, without limitation, having an employee of Tenant control the noise
emanating from any customers or invitees waiting outside of the Premises,leaving the Premises or smoking outside
of the Premises.
(18) Responsibility for Compliance. Tenant shall be responsible for ensuring compliance with these
Rules, 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.
•
DOCS/1923301.6B-3
•
•
EXHIBIT D
EXCLUSIVES
I.Crave Restaurant
Landlord shall not lease to, sell to,or permit any person or entity to sell sushi,provided,however,this prohibition
shall not apply to a restaurant provided that no more than 10%of such restaurant's food menu items are sushi.
2.:Coldstone Creamery
Landlord will refrain from leasing any space in the Center to (i)any ... tenant or occupant for the ... purpose'of
conducting as a primary business the sale of ice-cream, frozen yogurt or gelato, and (ii) any tenant or occupant
operating under the following tradenames:Maggie Moo's,Marble Slab Creamery,Brewsters,Baskin Robins,Ben&
Jerry's,Haagen.Dazs, Carvel,Friendly's Dairy Queen or Ted&Wally's ... for purposes hereof,the operation of an
ice-cream, frozen yogurt or gelato store as a primary business shall mean that greater of twenty percent(20%) or
more of any ... tenant's or occupant's revenues from the operation of such primary business conducted at such ...
tenant's or occupant's premises consist of, or twenty percent(20%) or more of the Gross Rentable Area of such of
such ...tenant's or occupant's premises is dedicated to the operation of such primary business.
3. Arlan's Barbershop
Landlord will refrain from leasing any space in the Center to any ... tenant or occupant for the ... purpose of
conducting as a primary business the operation of.a barber shop..for purposes hereof,the operation of a barber shop
as a primary business ... shall mean that the greater of twenty percent (20%) or more of any ... tenant's or
occupant's revenues from the operation of such primary business conducted at such ... tenant's or occupant's
premises consist of, or twenty percent (20%) or more of the Gross Rentable Area of such of such ... tenant's or
occupant's premises is dedicated to the operation of such primary business.
4.7-Wireless
Landlord will refrain from leasing any space in the Center to any... tenant or Occupant for the permitted purpose of
conducting as a primary business the retail sale of wireless telephone accessories and wireless communication
equipment and services ... for purposes hereof, the retail sale of wireless telephone accessories and wireless
communication equipment and services... shall mean that the greater of twenty percent(20%)or more of any ...
tenant's or occupant's revenues from the operation of such primary business conducted at such ... tenant's or
occupant's premises consist of, or twenty percent(20%)or more of the Gross Rentable Area of such future tenant's
or occupant's premises is dedicated to the operation of such primary business.
5.Definitive Vision
Landlord will refrain from leasing any space in the Center to any ... tenant or occupant for the ... purpose of
conducting as a primary business the operation of an optical store selling, at retail,prescription eyewear as well as
providing eye exams ... for purposes hereof,the Operation of a an optical store selling,at retail prescription eyewear
as well as providing eye exams as a primary business,with respect to any ... tenant or occupant shall mean that the
greater of twenty percent (20%) or more of any ... tenant's or occupant's revenues from the operation of such
primary business conducted at such ... tenant's or occupant's premises consist of,or twenty percent(20%)or more
of the Gross Rentable Area of such of such ...tenant's orr occupant's premises is dedicated to the operation of such
primary business.
6.NT Nails
•
Landlord will refrain from leasing any space in the Center to any ... tenant or occupant for the purpose of
conducting as a primary business the operation of a nail salon performing nail services ... for purposes hereof, the
operation of a nail salon as a primary business shall mean that ... the greater of twenty percent(20%)or more of any
... tenant's or occupant's revenues from the operation of such primary business conducted at such ... tenant's or •
occupant's premises consist of, or twenty percent (20%) or more of the Gross Rentable Area of such of such ...
tenant's or occupant's premises is dedicated to the operation of such primary business.
7.Corky's
DOCSl1923301.6 D-1
Landlord will refrain from leasing any space in the Center to any... tenant or occupant for the permitted purpose of
teaching painting and craft classes ... for purposes hereof,teaching painting and craft classes as a primary business, •
with respect to a ... tenant or occupant, shall meari that twenty percent (20%) or more of any ... tenant's or
occupant's revenues are derived from the operation of such primary business conducted at such ... tenant's or
occupant's premises
8. GNC
Landlord will refrain from leasing any space in the Center(including temporary leases;kiosks and carts)or on any
adjacent land owned by Landlord...for the permitted purpose of conducting as a primary business the sale of health
foods,vitamins,mineral and herbal supplements or sports nutrition supplements,provided,however...the terms and.
provisions of this ... shall not apply to nor be of any force or effect with respect to ... any existing tenant or
occupant of the Center ... or any successor.or assignee of such existing tenant Or occupant,for so long as any such
existing tenants lease or any renewal, extension Or replacement ...or to... any tenant or occupant in the Center
leasing or occupying more than 10;000 contiguous square'feet operating under a single trade name. For purposes
hereof,the retail sale of health foods,vitamins,mineral and herbal supplements or sports nutrition supplements as a
primary business shall mean selling the aforesaid.items by any future tenant's or occupant's within an area which
occupies in excess of the lesser of: (a)five percent(5%)of the future tenant's or occupant's floor space,or(b) one
hundred(100)square feet of the.future tenant's or occupant's floor space.
9. Thirst-Tea Cafe
Landlord will refrain from leasing any space in the Center ... to any tenant or occupant for the purpose of
conducting as a primary business the sale of tea (such that tea comprises more than 50%of sales); provided,
however... the terms and provisions of this ... shall not apply to ... any existing tenant or occupant of the Center
...or any successor,assignee or sublessee of such existing tenant or occupant..or to ... any tenant or occupant in the
Center leasing or occupying more than 10,000 square feet.
10. Makovicka Therapy
Landlord will refrain from leasing any space in the Center to any future tenant or occupant for the permitted purpose
of conducting business as a physical therapist (a person licensed to practice physical therapy) or as a physical
therapy practice,clinic or rehabilitation center,including as a hospital based physical therapy clinic. •
•
11. Callahan Financial
Landlord will refrain from leasing any space in the Center to any future tenant or occupant for the permitted purpose
of conducting, as a primary business, the operation of an independent service finn offering financial planning,
investment management,and related services.
12. Leadbelly •
•
Landlord will refrain from leasing any space in the Center to any tenant or occupant for the purpose of conducting as
its primary business the operation of a gourmet burger or build-your-own burger(such as,but not limited to,a tenant
or occupant operating as a Shake Shack, Smashburger, Zinburger, The Counter, or the Habit Burger Grill). For
purposes hereof, the operation of a fast casual or tableside service serving gourmet burgers or build your own
burgers as a primary business shall mean a tenant which has (i) gross revenues in excess of twenty five percent
(25%)or more from the operation of such primary business conducted at such future tenant's or occupant's premises,
or(ii)thirty-five percent(35%)or more of the Gross Rentable Area of such of such tenant's or occupant's premises
is dedicated to the operation of such primary business.
•
DOCSl1923301.6 D-2
•
13.Coin Postal •
Landlord will refrain from leasing any space in the Center to(i)any future tenant or occupant for the permitted purpose
of conducting as a primary business the sale of postal and shipping services, copying services, Mailbox rentals, and
shipping supplies ... For purposes hereof, conducting as a primary business the operation of a postal and packaging
store shall mean the greater of twenty percent(20%) 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 twenty
percent(20%)or more of the Gross Rentable Area of such of such future tenant's or occupant's premises is dedicated to
the operation of such primary business).
14.Hutch
Landlord will refrain from leasing any space in the Center to.(i)any future tenant or occupant for the permitted purpose.
of selling home.and business furniture.
15.Della COsta
Landlord will refrain from leasing any space in the Center to (i) any future tenant or occupant for the permitted
purpose of conducting, as a primary business,the operation a full-service Mediterranean restaurants..For purposes
hereof,the operation of a full service"Mediterranean"restaurant as a primary business shall mean operation of any
full service restaurant: (i)with the words "Mediterranean", "Spanish" or "Greek" in its name or specified in its
advertising or Marketing efforts; or (ii) where the sale of food in a "Mediterranean" style, or a combination of
"Spanish" or"Greek"styles with a "Mediterranean"theme as a primary part of the restaurant concept; provided,.
however, that nothing in this section shall prohibit Landlord from leasing space in the Shopping Center to a
restaurant which primarily serves French food,Italian food,pizza,pasta,or gyros.
16. Proof
Landlord will refrain from leasing any space in the Center to (i) any future tenant or occupant for the permitted
purpose of conducting,as a primary business,the operation of a prohibition style whisky bar.... For purposes hereof,
the operation of a prohibition-style whiskey bar as a primary business shall mean that ... the greater of twenty
percent (20%)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 twenty percent (20%) or more of the Gross
Rentable Area of such of such future tenant's or occupant's premises is dedicated to the operation of such primary
business.
17. Pickleman's
•
Landlord will refrain.from leasing any space in the Center to any future tenant or occupant for the permitted purpose
of conducting as a primary business the operation a fast casual sandwich restaurant including,but not limited to,a
lease to any Potbelly,Jimmy Johns,Jersey Mikes;Firehouse Subs,or Which Wich restaurant...For purposes hereof,
the operation of a fast casual restaurant selling sandwiches a's a primary business shall mean twenty-five percent
(25%)or more of any future tenant's or occupant's revenues from the operation of such primary business.
18. Rays Original Buffalo Wings
Landlord will refrain from leasing any space in the Center to (i) any future tenant or occupant for the permitted
purpose of conducting as a primary business the sale of chicken wings. For purposes hereof, the sale of chicken
wings as a primary business shall mean, that twenty-five percent (25%) or more of any such future tenant's or
occupant's revenues are from the sale of chicken wings.
•
DOCS/1923301.6 D-3
19. Long Dog Fat Cat
Landlord will refrain from leasing any space in the Center to (i) any future tenant or occupant for the permitted
purpose of conducting as a primary business the sale of pet supplies,grooming services,and baked goods for.pets.
For purposes hereof,primary business shall mean twenty percent(20%)or more of any future tenant's or occupant's
revenues:from the sale of pet supplies,grooming services,and baked goods for pets conducted at such future tenant's
or occupant's premises,or twenty percent(20%)or more of the Gross Rentable Area of such of such future tenant's
or occupant's premises is dedicated to the sale of pet supplies,grooming services,and baked goods for pets..
20.Culprit
Landlord will not allow leasing of any space in the Center to any future tenant or occupant that generates more than
twenty percent(20%)of its Gross Sales from coffee and bakery related goods.
•
D'OCS/1923301.6 D-4
EXHIBIT E
PROHIBITED USES
Tenant shall not use the Center in whole or in part,for any of the following purposes:.
(a) Flea market or swap show;
(b) So-called"off-track betting"operation,or any operation selling keno and pickle cards;
(c) Store specializing in the sale of drug paraphernalia;
(d) Store specializing in the display or sale of pornographic materials;
(e) Except as otherwise expressly permitted by Landlord,a theater,
(f) Except as otherwise expressly permitted by Landlord,a grocery store;
(g) Except as otherwise expressly permitted by Landlord,a bowling alley;
(h) Mobile home park, trailer court, labor camp,junkyard or stockyard (except the temporary use of
construction trailers during periods of construction);
(i) Dumping,disposing,incineration,or reduction of garbage(exclusive of dumpsters located in the
rear of any building);
(j) Fire sale or bankruptcy sale(unless pursuant to a court order);
(k) Except as otherwise expressly permitted by Landlord,.a central laundry, dry cleaning plant, or
laundromat;
(I) Automobile,truck,trailer,R.V. or motor vehicle sales,leasing,display or repair;
(m) Veterinary hospital or animal raising facilities (except that this prohibition shall not prohibit pet
shops);
(n) Mortuary or funeral parlors;
(o) Establishment renting, selling or exhibiting pornographic materials(this exclusion shall not apply
to (a)a Blockbuster Video or a Hollywood Video or any other video stores that are substantially similar to the
foregoing video stores as such stores operate as .of the date hereof in the State of Nebraska), or (b)a Barnes &
Noble,Borders,Half Price Books,or Books a Million or any other full line book stores that are substantially similar
to the foregoing book stores as such stores operate as of the date hereof in the State of Nebraska;
(p) Auditorium,meeting ball,school,church or other place of public assembly;
(q) Car wash or gas station;
(r} Carnival,amusement park or circus;
(s) Any use which emits an obnoxious odor,noise or sound which can be heard or smelled outside of
any building; and
(t) Except as otherwise expressly permitted by Landlord,a hotel, living quarters,sleeping apartments,
or lodging.room.
DOCS/1923301.6 E-I
EXHIBIT F
GUARANTY OF LEASE
S '
This Guaranty is made as of this Z? day of March,2018 by Isa Chandra Moskowitz;a single person, and
James Walmsley, a married person (collectively,jointly and,severally, the "Guarantor"), with the addresses set
forth in their respective signature blocks below, to and in favor of East Campus Realty, LLC, a Nebraska limited
liability company(hereafter"Landlord")with an address of c/o Mutual of Omaha Insurance Company,Mutual of
Omaha Plaza,Omaha,Nebraska 68175,Attn: President.
WITNESSETH:
WHEREAS,by Lease Agreement dated on or about the date hereof,Landlord has leased to Rita Park,LLC,
a Nebraska limited liability company, d/b/a Modem Love("Tenant") with the address of 3157 Farnam Street,
Suite 7113, Omaha,Nebraska (the"Premises") in the development known as Midtown Crossing at Turner Park in
Omaha,Nebraska(the"Lease")which term includes the same as it may hereafter be modified,amended, extended.
or renewed);and
WHEREAS, Landlord has required the Guarantor to execute.this Guaranty of Lease ("Guaranty") as a
condition to the.Landlord entering into the Lease with the Tenant;and
WHEREAS, Guarantor will receive direct or indirect benefit from the Landlord entering into the Lease
with the Tenant.
NOW,THEREFORE,in order to induce Landlord to enter into the Lease and for other good and valuable
consideration,the undersigned Guarantor hereby agrees as follows:
1. Guarantor hereby absolutely, unconditionally,and irrevocably jointly and severally guarantees to
Landlord the full and prompt payment of all Rent (as defined in Section 7.1 of the Lease), the reimbursement to
Landlord of the amount of any leasing commissions paid by Landlord or Improvement Allowance paid by Landlord
upon early termination of the Lease and any and all other sums and charges payable by Tenant under the Lease
(collectively, the "Payment Obligations") and.hereby further guarantees the full and timely performance and
observance of all of the covenants,terms,conditions and agreements therein provided to be performed and observed
by Tenant (the "Performance Obligations" and together with the Payment Obligations collectively, the
"Obligations"). In the event of a default under the Lease,Guarantor hereby covenants and agrees with Landlord:(i)
to make the due and full punctual payment of all Payment Obligations payable by Tenant under the Lease; (ii)to
effect prompt and complete performance of all and each of the Performance Obligations, contained in the Lease on
the part of Tenant to be kept,observed and performed; and(iii)to indemnify and save harmless Landlord from any
loss, costs or damages arising out of any failure by Tenant to pay or perform any Obligation including, without
limitation, reasonable attorneys' fees and costs of collection. This Guaranty is a continuing guaranty of payment
and performance and is not conditional or contingent upon any attempt to collect from Tenant or upon any other
condition or contingency.
2. In the event of a default under the Lease,Guarantor waives any right to require Landlord to first:
(i)proceed against Tenant or pursue any rights or remedies with respect to the Lease;(ii)proceed against or exhaust'
any security that Landlord holds from Tenant; or(iii)pursue any other remedy whatsoever. Landlord shall have the
right to enforce this Guaranty regardless of the acceptance of additional security from Tenant and regardless of the
release or discharge of Tenant or any guarantor by Landlord or by others,or by operation of law.
3. Guarantor hereby expressly waives: (a) any right of setoff, counterclaim or deduction against
amounts due under this Guaranty except as stated herein; (b)notice of the acceptance of this Guaranty and notice of
default of Tenant under the Lease;and(c)the right to interpose all substantive and procedural defenses of the law of
guaranty,indemnification and suretyship,except the defenses of prior payment or prior performance.
4. Without limiting the generality of the foregoing, the liability of Guarantor under this Guaranty
shall not be deemed to have been waived,released,discharged, impaired or affected by (a)reason of any waiver or
failure to enforce or delay in enforcing any of the Obligations,or(b) the granting of any indulgence or extension of
time to Tenant, or (c) the assignment of the Lease, or the subletting of the Premises by Tenant, with or without
Landlord's consent, or(d)the expiration of the term, or (e)if Tenant holds over beyond the term of the Lease, or
DOCS/1923301.6 F-1
(f)any merger or reorganization or the release or discharge of Tenant or any other guarantor in any voluntary or
involuntary receivership,bankruptcy,winding-up or other creditors'.proceedings,or(g)the rejection,disaffirmance
or disclaimer of the Lease by any patty in any action or proceeding,or(h)the release of any collateral held for the
Obligations or release of any.Guarantor or any other guarantor,or.(i)any defect or invalidity of the Lease,and shall
continue with respect to the periods prior thereto and thereafter. The liability of the Guarantor shall not be affected
by any repossession,re-entry or re-letting of the Premises by Landlord.
5. The liability of Guarantor under this Guaranty shall not be released by any modification or
amendment to the Lease(including any extension or renewal'of the term of the Lease),and in the case of any such
modification, the liability of Guarantor shall be modified.in accordance with the term of any such modification of
the Lease.
6. Guarantor shall pay Landlord's reasonable attorneys' fees. and all costs and other expenses
incurred in any collection or attempted collection of this Guaranty or in any negotiations relative to the Obligations
guaranteed under this Guaranty whether or not a lawsuit is commenced. All rights and remedies of Landlord under
this Guaranty shall be cumulative and may be exercised singly or,concurrently.
7. This Guaranty shall remain in full force and effect until the payment or performance of all
Obligations and the other amounts payable under this Guaranty (whether or not the Lease shall have been
terminated). Until the payment and performance of all Obligations and the amounts payable under this Guaranty,
Guarantor:
(a) Shall have no right of subrogation against Tenant by reason of any payments or acts of
performance by the Guarantor in compliance with the obligations of the Guarantor under this Guaranty;
(b) ' Waives any right to enforce any remedy which Guarantor now or hereafter shall have
• against Tenant by reason of any one or more payments or acts of performance in compliance with the
obligations of Guarantor under this Guaranty;and
(c) Subordinates any liability or indebtedness of Tenant now or hereafter held by Guarantor
to the obligations of Tenant to the Landlord under the Lease.
8. This instrument may not be changed, modified,discharged or terminated orally or in any manner
other than by an agreement in writing signed by Guarantor and the Landlord.
9. All of the terms, agreements and conditions of this Guaranty shall extend to and be binding upon
Guarantor, and the heirs, executors, personal administrators, and/or successors and assigns of Guarantor and shall
inure to the benefit of and may be enforced by Landlord,its successors and assigns,and the holder of any mortgage
to which the Premises may be subject at any time or from time to time.
:10. The use of the singular herein shall include the plural and the use of any gender shall include all
genders or neuter as the case may be. This Guaranty is entered into in the State of Nebraska and shall be governed
by and construed in accordance with the laws of the State of Nebraska. Guarantor agrees that the District Court of
Douglas County, Nebraska and the Federal District Court for the District of.Nebraska shall have jurisdiction over
any dispute arising out of this Guaranty.
l l.` If Guarantor consists of more than one person or entity,the liability of each such person or entity
under this Guaranty shall be joint and several.
12. This Guaranty has been executed and delivered by Guarantor and constitutes the valid, binding
and legal obligation of the Guarantor. Guarantor agrees that it will, from time to time, within ten (10) days of.
Landlord's request,execute and deliver a statement:certifying that this Guaranty is unmodified and in full force and
effect.
13. All notices under this Guaranty shall be delivered personally,by commercial courier service which
provides written evidence of delivery,or by United States certified mail,return receipt requested,postage prepaid to
the addresses of the parties rust set forth above. All notices shall be deemed given upon receipt or refusal at the
DOCSf1923301.6 G-2 •
•
addresses first set forth above. Any party may change its address for notice by giving notice in the manner set forth
herein.
14. If any provision of this Guaranty or the application thereof to any person or circumstances shall,
for any reason and to any extent,be invalid or unenforceable,the remainder of this Guaranty and the application of
that provision to other persons or circumstances shall not be affected but rather shall be enforced to the extent
permitted by law. This Guaranty shall be construed without regard to any presumption or other rule requiring
construction against the party causing this Guaranty to be drafted.
15. As a further inducement.to Landlord to enter into the Lease and to accept this Guaranty,Guarantor
hereby intentionally, knowingly and voluntarily waives any right to a trial by jury in any lawsuit, proceeding,
counterclaim, or any other litigation procedure based upon, or arising out of this Guaranty. In extension of the
foregoing,the Guarantor specifically consents to trial before a court respecting any such matter. Guarantor will not
seek to consolidate any such action in which a jury trial has been waived with any other action in which a jury trial
cannot be or has not been waived. This Guaranty may be executed in counterparts,all of which taken together shall
be deemed one original.
16. Notwithstanding anything to the contrary set forth in this Guaranty,Guarantor's 'ability under this
Guaranty shall not exceed: (a) any unamortized leasing commissions and Improvement o ance paid by
Landlord; t ,.` �.,,�'
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the date of execution of the
Lease by Tenant. •
By: `c SA-0—
lsa )Chandra i, [
�Moskowitz,' "t a single person
Address: `1 C/ A t ` 4 {~
f " 1E
Social Security Number: 10(9 5 2-- 1 2
•
By: (._.---7/1,U1ArrAat--)'c-A-A-'-"-----Noef •
James Walmsley,a married person
Address: 5 ' 7 .C� 0 b v� S-&
of to.�,y�t !VJivaloij
.
Social Security Number. 6 t i ''2 d5
THE UNDERSIGNED SPOUSE OF THE ABOVE-NAMED GUARANTOR HERBY
CONSENTS TO THE TERMS OF FOREGOING GUARANTY AND APPROVES THE
EXECUTION HEREOF BY THE GUARANTOR:
By: /Guvia InlGtO yl lY.ntj-
Printed: LaUP.a WalkYI C
Tide: Spouse of James Walmsley
DOCS/1923301.6 G-3
•
•
EXHIBIT G
EXISTING FF&E
Inventory
TABLES
4-4]"high x 30"diameter(hightop 3-seater rounds)
1 -41"high x 30"x 48"(hightop 4-seater rectangles)
I -41"high x 24"x 30"(hightop 2-seater squares)
5-29"high x 48"x 30"(low 4-seater:rectangles)
6 ft x 30"(low rectangle)
1.5-29"high x 24"x30"
1 -29"high x 30"x 30"
4-29"high x 36"x 36"
TOTAL 32
CHAIRS
Hightop chrome frame chairs 29"to pleather seat
Low chrome frame chairs 18"to pleather seat
Low wooden chairs w chrome legs 18"to seat
Children 30"wooden high,chairs
Wooden barstools 30"to seat
BAR ITEMS
2--37"high x 26"deep x 69"wide True 2-clear door refrigerators
1 -33"high x 30"deep x 48"wide steel bar prep table w 4 legs,no shelves
1 -36"high x 24"deep x 24"wide Danby Designer white mini fridge w 3 shelves&marker board
KITCHEN ITEMS •
4 dz-white twin dish ramekins
4 steel equipment leg extenders
General kitchen ware;mixing bowls,cooking utensils,tongs,plastic rectangular prep containers
l -36"wide x 31"deep Southbend 6-burner gas stove w lower oven
1 -Wells gas flat top griddle,on top of 25"high x 36"x 32"lower stainless stell table
1.-.American gas range 10-burner grill,on top of refrigerated 2-drawer True cabinet
3 -Frymaster gas 2-basket fryer units
1 -True 2-drawer freezer cabinet w flat table top 67"x 33"
1 -True 2-door refridgerator w flat table top 48"x 32"
1 -True 3-door refridgerator prep center unit w 2 work stations 72"x 34"
2-8 ft x 24"prep tables w 2 raised shelves(top shelf heated)
1 -wash table 60"long x 30"deep
1.-wash table 72"long x 30" deep
1 -food slicer(brand unknown,no label)
DOCS/1923301.6 G-1
(KITCHEN ITEMS,CONT.)
1 -30"x 23"deep well food prep sink
1 -wall mounted french fry cutter
5-16"x 16"hand sinks,serial#30.0004004
1-24"x 48"raised floor aluminum rack
1 -22"x 25"floor mop sink,model#F1916
1.-14"deep x 91"x 60"wire rack on wheels
2-.4ft.x.18"wall mounted stainless steel racks
1 -36"x 18"wall mounted stainless steel rack
1 -90"x 24"deep three well sink w 2 flat work stations on each end
1 -10 ft x 5 ft"L"-shape dish washing.station
9-711 x 3ft x 18"coated shelving unit
8-7ft x 4ft x 18"coated shelving unit
5-7ft x 5 11 x 18"coated shelving unit
I -stainless steel 30"x 30"prep table
2-Hamilton Beach commercial grade malt mixers w 26 steel malt cups. •
2-6ft rolling speed racks
MISC.
1 -Sentry Safe black tabletop safe with keypad(code 17500##)
"3-Vizio 28"flat screen TVs w remotes
SERVEWARE/PREP ITEMS/FLATWARE
20-stainless steel 3"tall mini fryer baskets
•
•
DOCS/1923301.6 G-2
The Lund Company
IIIIIII� CUSHMAN& LUND 450 Regency Parkway,Suite 220
Omaha,Nebraska 68114
0111► WAKEFI ELD® C O M P A NY 402.393.8811 • www.lundco.com
INDEPCNIXMLY OWNED AND ORWRIED
Schedule 1
ACH Authorization Form
Schedule your payment to be automatically deducted from your checking or savings account.
Just complete the lower section,sign this form, and submit to your financial institution to get started!
Landlord Name as it appears on Account: Landlord Bank Name:
The Lund Company c/o East Campus Realty, LLC Mutual of Omaha Bank
Landlord Address: 450 Regency Pkwy Ste.220 Bank Address: 3333 Farnam Street
Landlord City, State&Zip: Omaha, NE 68114 Bank City,State&Zip: Omaha, NE 68131
Landlord Telephone: 402-393-8811 Bank Telephone: 402-351-5118
Landlord Email Address: accountspayable@lundco.com Bank Account Number#9300024256
• Property Name: Midtown Crossing at Turner Park Bank Routing #104002894
Signature of Officer:
Ryan W. Hill, CFO,The Lund Company, as Agent for Date
East Campus Realty, LLC
Please complete the information below:
By signing this form I, , as the of
hereby authorize The Lund Company, as managing agent for the Landlord referenced above, to receive debit
entries from my financial institution into the above-referenced Bank Account on the first (i t) of each month for
payment of my monthly rent for the property located at
Street Address/Unit# City State Zip
Billing Address Phone#
City, State, Zip Email
I understand that this authorization will remain in effect until I cancel it in writing, and I agree to notify The Lund
Company in writing of termination of this authorization at least 30 days prior to the next billing date. If the above
noted periodic payment dates fall on a weekend or holiday, I understand that the payment may be executed on the
next business day.In the case of an ACH Transaction being rejected for Non-Sufficient Funds (NSF) I understand
that The Lund Company may charge an additional fee for each returned NSF which will be initiated as a separate
transaction from the authorized recurring payment. I acknowledge that the origination of ACH transactions to my
account must comply with the provisions of U.S. law. I agree not to dispute this recurring billing with my bank so
long as the transactions correspond to the terms indicated in this authorization form.
SIGNATURE DATE
Schedule-1
DOCSi 1923301.E
•
Jain
AS president of the board at the First Unitarian Church of Omaha it is my pleasure to
welcome Modem Love to the mid-town neighborhood. We have several vegan members and
•
it will be very convenient for us to carry food from your new location to ours for events.
On May 8,2018 the board of directors voted unanimously to support your application for
liquor license. -
•
Good ludo in your new location,
Alan Vovolka
President of the Board
First Unitarian Church of Omaha
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PUBLIC WORKS DEPARTMENT REPORT
DATE: JUNE 5,2018 DUE DATE: JUNE 14,2018
CITY COUNCIL HEARING JUNE 26,2018
APPLICANT: RITA PARK,LLC,DBA"MODERN LOVE"
LOCATION: 3157 FARNAM STREET,SUITE 7113
REQUESTED LICENSE OR ACTION: CHANGE OF LOCATION OF THEIR PRESENT
CLASS"C"LIQUOR LICENSE FROM 1319 SOUTH 50TH STREET
DESIGNATION OF ADJACENT STREET (LOCAL,COLLECTOR,MINOR OR MAJOR
ARTERIAL EXPRESSWAY): rYm i r r l4-r-/-e r
STREET WIDTH AND PROFILE: 3 ' ) -Lod S ) I) nd r v et,0c( mad )(t...,L
SPEED LIMIT: rn pin
AVERAGE DAILY TRAFFIC AND PEDESTRIAN FLOW: /,� C VllrS ICPj
We) Pds/,tom
ACCIDENT REPORT AT ADJACENT INTERSECTION: ./ t4.,en u a arr) %Oi J
ral/O rl/.3 ./‹)/3IJi, e1 Oe?:/d.c.,,-7S , ✓rYa rr vt- 77t_rn.t ( -1A0itle 1/0.Yd "-
4- Qc�rcUrri-S• . (nGtr1'1 ' d Sf-YE - / (6 .6,-+-
POTENTIAL TRAFFIC AND PARKING PROBLEMS: k) YiQ_
(Authorized gnature) (Date)
PLANNING DEPARTMENT REPORT
DATE: JUNE 5,2018 DUE DATE: JUNE 14,2018
CITY COUNCIL HEARING JUNE 26,2018
LOCATION: 3157 FARNAM STREET, SUITE 7113
APPLICANT: RITA PARK,LLC,DBA"MODERN LOVE"
REQUESTED LICENSE OR ACTION CHANGE OF LOCATION OF THEIR PRESENT
CLASS "C" LIQUOR LICENSE FROM 1319 SOUTH 50TH STREET
NEW LOCATION(X)NEW OWNERSHIP () TYPE OF FACILITY: RESTAURANT
THIS REQUEST DOES 0 DOES NOT(X) PERTAIN TO AN OUTSIDE AREA
IF SIDEWALK CAFE: R-O-W-LEASE PERMITS OBTAINED
IF OUTSIDE: OUTSIDE AREA IS FEET FROM THE NEAREST RESIDENCE
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) (Except Class D-1 Package Liquor License)
ANNEXATION DATE: ORDINANCE NO. (Only if within last 24 months)
EXISTING ZONING: MU-ACI-1(PL) EXITING LAND USE: RESTAURANT
ADJACENT LAND USE AND ZONING:
NORTH: COMMERCIAL MU-ACI-1(PL)
SOUTH: CIVIC CBD-ACI-1(PL)
EAST: EMPTY LOTS CBD-ACI-1(PL)
WEST: COMMERCIAL MU-ACI-1(PL)
PARKING STALLS PROVIDED: 7 LEVEL GARAGE + ON-STREET METERED
EXISTING USE DOES(X) DOES NOT( )COMPLY WITH ZONING REGULATIONS
PLUMBING FIXTURES PROVIDED: WOMEN'S LOCKED
MEN'S LOCKED
DATE SUBJECT PROPERTY WAS POSTED: JUNE 12. 2018
857IRST UNITARIAN CHURCH)
(Rule#7) DISTANCE OF PROPOSED LICENSE TO ANY SCHOOL,CHURCH,OR CITY PARK:95(TURNER PARK)
DISTANCE OF PROPOSED LICENSE TO ANY EXISTING LICENSE: 0'-CORKY CANVAS
(State Law) DISTANCE OF PROPOSED LICENSE TO ANY CHURCH 85'-FIRST UNIARIAN CHURCH
SCHOOL OK HOSPITAL OK HOME FOR THE AGED,INDIGENT
OR TERANS OK COLLEGE OR UNIVERSITY OK
•
(Authorized Signature) (Date)
HA, N
Cityo Omaha, [Are bras
.4roiv
r�,,
1819 Farnam —Suite LC 1 w e i t�r r,
Omaha, Nebraska 68183-0112 i
Elizabeth Butler (402) 444-5550
City Clerk FAX (402) 444-5263 p 4
TFD FEBR.A
June 12,2018
Rita Park, LLC Application for a Change of Location of
Dba"Modern Love" your present Class "C" Liquor License to
1319 South 50th Street 3157 Farnam Street, Suite 7113
Omaha,NE 68106
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 June 26, 2018 . 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 or his/her
representative 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 Mandatory statement that must 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,
Elizabeth Butler
City Clerk
EB:clj ,
City o Omaha, fAre 6��s o�OMAHA//N�4�
1819 Farnam —Suite LC 1 ettri„
i Jr' t,
Omaha, Nebraska 68183-0112 a52 ( ,,g
Elizabeth Butler (402) 444-5550
City Clerk FAX (402) 444-5263 o g�
9TFD FEBRUA
June 12, 2018
Rita Park, LLC Application for a Change of Location of your
Dba"Modern Love" present Class"C"Liquor License from 1319
3157 Farnam Street, Suite 7113 South 50th Street
Omaha,NE 68131
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 June 26, 2018 . 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 or his/her
representative 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.
Sincerely yours,
Elizabeth Butler
City Clerk
EB:clj
oNtAHA, ,v
City o Omaha, Ne bras a of „u ,,,,N
1819 Farnam —Suite LC 1 -
Omaha, Nebraska 681 83-01 1 2 c r_ hkr ''* lri ',
Elizabeth Butler (402) 444-5550 City Clerk FAX (402) 444-5263 o
9TFD FEBR�� ry
}icri .
JUNE 15, 2018 ./()
NOTICE OF REQUEST: To consider an APPLICATION FOR A CHANGE OF
LOCATION OF THE PRESENT CLASS "C" LIQUOR LICENSE, which allows the
sale of beer, wine and liquor, by the drink on the premises; package in the original
package for consumption off premises.
APPLICANT: RITA PARK, LLC
DBA MODERN LOVE
CURRENT LOCATION: 1319 SOUTH 50TH STREET
NEW LOCATION: 3157 FARNAM STREET, SUITE 7113
As an owner of property within 500 feet of the above referenced location, you are
being notified that the Omaha City Council will hold a meeting and public hearing
on this request on Tuesday, JUNE 26, 2018 in the Legislative Chambers — Level
LC of the Omaha/Douglas Civic Center, 1819 Farnam Street, Omaha, Nebraska.
The meeting begins at 2:00 PM.
A notice of this meeting published in the Daily Record JUNE 18, 2018 .
Anyone interested in the actions of the Omaha City Council should be in
attendance. To obtain additional information or to submit written testimony, please
contact Carman Johnson at 402-444-5324 or carman.johnsoncityofomaha.org.
ALL REQUESTS FOR SIGN LANGUAGE INTERPRETERS (SIGNERS) WILL REQUIRE A
MINIMUM OF 48 HOURS ADVANCE NOTICE. IF ALTERNATIVE FORMATS ARE NEEDED,
ALL REQUESTS WILL REQUIRE A MINIMUM OF 72 HOURS ADVANCE NOTICE.
PLEASE NOTIFY ELIZABETH BUTLER, (402) 444-5557, IF ARRANGEMENTS NEED TO BE
MADE.