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EXHIBIT 10.5
ASSIGNMENT AND ASSUMPTION OF GROUND LEASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE AGREEMENT (this "Agreement") is
dated this 1st day of February, 2000 and is by and between Scout Development
Corporation, a Missouri corporation ("Scout") and Fitzgeralds Reno, Inc., a
Nevada corporation ("Fitzgeralds").
SECTION I
RECITALS
1.1 On or about March 1, 1978, Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx") entered
into a written agreement entitled "Ground Lease", (the "Original Ground Lease")
with South Pacific Transportation Company, a Delaware corporation ("Southern
Pacific" or "SP") wherein Xxxxxxxxx leased from Southern Pacific certain real
property (the "Land") in the City of Reno, County of Washoe, State of Nevada. A
true and correct copy of the Original Ground Lease is attached hereto as Exhibit
"A" and made a part hereof by reference.
1.2 On or about February 22, 1979, Southern Pacific and Xxxxxxxxx entered
into a "Supplemental Agreement" (the "First Supplemental Agreement") amending
the Original Ground Lease. A true and correct copy of the First Supplemental
Agreement is attached hereto as Exhibit "B" and made a part hereof by reference.
1.3 On or about August 22, 1979, Xxxxxxxxx exercised his option under
Section 2.02 of the Original Ground Lease to extend the term under the Original
Ground Lease and First Supplemental Agreement. By exercise of that option, the
term was extended for an additional period of ten (10) years, for a total term
of forty-five (45) years, which term expires on the 28th day of February 2023.
1.4 On or about September 27, 1979, Southern Pacific and Xxxxxxxxx executed
a "Memorandum of Ground Lease Agreement" (the "Lease Memorandum") giving public
notice of the execution and effect of the Original Ground Lease and Supplemental
Agreement. The Lease Memorandum was recorded in the official records of the
Washoe County Recorder on the 27th day of February 1980 as instrument number
659260.
1.5 On or about December 19, 1979, Xxxxxxxxx and BMA Corporation, a
Missouri corporation ("BMA Corporation") formerly known and then known as BMA
Properties, Inc., a Missouri corporation, formed a general partnership under the
laws of the state of Nevada, under the name of Plaza Investments ("Plaza
Investments"). On the same day, December 19, 1979, Xxxxxxxxx assigned his entire
interest in the Original Ground Lease and First Supplemental Agreement to Plaza
Investments (the "Xxxxxxxxx/Plaza Investments Assignment"). On the same day,
Xxxxxxxxx and Plaza Investments entered into a "Memorandum of Assignment of
Lease" (the
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"Xxxxxxxxx/Plaza Investments Assignment Memorandum") dated December 19, 1979
and recorded the same on January 9, 1980 in the official records of the Washoe
County Recorder as instrument no. 651035. The Xxxxxxxxx/Plaza Investments
Assignment Memorandum was thereafter re-recorded on February 27, 1980 in the
official records of the Washoe County Recorder as instrument no 659261.
1.6 On or about July 16, 1984, Southern Pacific and Plaza Investments (by
and through Xxxxxxxxx) entered into a "Supplemental Agreement" (the "Second
Supplemental Agreement") wherein Southern Pacific and Plaza Investments
adjusted the minimum annual rent under Section 3.01 and 3.02 of the Ground
Lease for a period of five (5) years commencing January 1, 1984 and terminating
on December 31, 1988. A true and correct copy of the Second Supplemental
Agreement is attached hereto as Exhibit "C" and made a part hereof by reference.
1.7 By virtue of an agreement dated January 1, 1989, Southern Pacific and
Plaza Investments entered into a "Memorandum Confirming Rent Adjustment" (the
"Third Supplemental Agreement") wherein Southern Pacific and Plaza Investments
adjusted minimum annual rent under Sections 3.01 and 3.02 of the Original Ground
Lease for a period of five (5) years commencing January 1, 1989 and terminating
on December 31, 1993. A true and correct copy of the Third Supplemental
Agreement is attached hereto as Exhibit "D" and made a part hereof by reference.
1.7A On or about March 18, 1999, G and S Investment and Scout agreed to
adjust the minimum annual rent under Section 3.02 of the Ground Lease for a
period of five (5) years commencing January 1, 1999, and terminating on
December 31, 2003. A true and correct copy of this Agreement is attached hereto
as Exhibit "D-1" and made a part hereof by reference.
1.8 On or about January 26, 0000, Xxxxx Xxxxxxx Xxxxxxxx Company, a
Delaware corporation ("Union Pacific"), a successor to Southern Pacific, Scout
and G and S Investment Company entered into a "Deed of Correction and
Reformation and Boundary Line Adjustment Agreement" wherein the legal
description of the Land and the rights which should have been included in the
Original Ground Lease was corrected. The Deed of Correction and Reformation and
Boundary Line Agreement was recorded in the official records of the Washoe
County Recorder on the 26 day of January, 2000 as instrument no. 2417486 and
the "Record of Survey" referenced therein was recorded in the official records
of the Washoe Country Recorder on the 26 day of January, 2000 an instrument no.
2417487. The Deed of Correction and Reformation and Boundary Line Adjustment
Agreement and the Record of Survey are herein referred to as the "Fourth
Supplemental Agreement".
1.9 As used herein, the following terms have the following meanings:
A. The term "Subject Lease" means the Original Ground Lease between
Southern Pacific and Xxxxxxxxx, as supplemented by the First
Supplemental Agreement, the Second Supplemental Agreement, the
Third Supplemental Agreement, and the Fourth Supplemental
Agreement, and as identified in the Ground Lease Memorandum
recorded February 27, 1980 in the official records of the Washoe
County Recorder as instrument no. 659261; and
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B. The term "Leasehold Improvements" means all improvements
constructed by Plaza Investments, or any other lessee under the
Subject Lease, on the land.
1.10 On or about May 2, 1989, Xxxxxxxxx and BMA Corporation dissolved Plaza
Investments Under the Plaza Investment Partnership Dissolution Agreement, which
dissolved Plaza Investments, the entire right, title, and interest of Plaza
Investments in and to the Subject Lease, and in and to the Leasehold
Improvements, was transferred to BMA Corporation. On September 29, 1989 a "Deed"
dated the same date, which transferred to BMA Corporation the entire interest of
Plaza Investments in the Leasehold Improvements and in the Subject Lease (the
"Plaza/BMA Corporation Deed") was recorded in the official records of the
Washoe County as instrument no. 1352951.
1.11 By virtue of an "Assignment of Leasehold Interest" dated August 9,
1990 (the "BMA Corporation/Scout Assignment") recorded October 26, 1990, BMA
Corporation transferred its leasehold interest under the Subject Lease and its
ownership interest in the Leasehold Improvements to Scout. The BMA Corporation/
Scout Assignment was recorded October 26, 1990 in the official records of the
Washoe County Recorder as instrument no. 1437239.
1.12 By virtue of a "Grant, Bargain, Sale Deed" dated June 15, 1990 (the
"BMA Corporation/Scout Deed") BMA Corporation transferred its Interest in the
Leasehold Improvements, subject to the Subject Lease, to Scout. The BMA
Corporation/Scout Deed was recorded on October 26, 1990 is the official records
of the Washoe County Recorder as instrument no. 1437240.
1.13 Scout is presently the lessee under the Subject Lease, and Scout is
presently the owner of the Leasehold Improvement. G and S Investment is
presently the lessor under the Subject Lease. Scout and G and S Investment
acknowledges that the Subject Lease is in full force and effect as of the date
of the execution of this instrument.
1.14 By virtue of a "Grant, Bargain and Sale Deed" dated August 10, 1990,
(the "SP/Lake Trust Deed") recorded August 24, 1990. Southern Pacific
transferred its interest in the Land and its leasehold interest (as lessor) in
the Subject Lease to Xxxxxx X. Xxxxx, Xx. and Xxxxxx X. Xxxxx, as trustees of
The Lake Trust (hereafter "The Lake Trust"). The SP/Lake Trust Deed was
recorded August 24, 1990 in the official records of the Washoe County Recorder
as instrument no. 1422684.
1.15 By virtue of a "Quitclaim Deed" dated October 8, 1992, (the "Lake
Trust/G and S Investment Deed") recorded October 13, 1992. The Lake Trust
quitclaimed to G and S Investment its interest in and to the property which was
conveyed to The Lake Trust in the SP/Lake Trust Deed. The Lake Trust/G and S
Investment Deed was recorded October 13, 1992 in book 3927, pages 160-169
inclusive in the official records of the Washoe County Recorder as instrument
no. 1613410.
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1.16 By virtue of an "Assignment of Lease and Assumption Agreement" dated
October 8, 1992 (the "Lake Trust/G and S Investment Assignment") recorded
October 13, 1992, The Lake Trust assigned its interest in the Subject Lease to G
and S Investment and G and S Investment assumed all obligations of The Lake
Trust/G and S Investment Assignment. The Lake Trust/G and S Investment
Assignment was recorded October 13, 1992 in the official records of the Washoe
County Recorder as instrument no. 1613411.
1.17 On or about October 11, 1999, Scout and Fitzgeralds entered into a
Purchase Agreement (the "Purchase Agreement") for the sale and purchase of the
Land and Leasehold Improvements. The purpose of this instrument is to accomplish
certain transfers contemplated by the Purchase Agreement, namely (a) the
assignment to Fitzgeralds of the entire rights, title and interest of Scout as
lessee under the Subject Lease, (b) the sale by Scout to Fitzgeralds of the
Leasehold Improvements, and (c) the assumption by Fitzgeralds of the obligations
of Scout under the Subject Lease.
SECTION 2
ASSIGNMENT AND CONVEYANCE
IN CONSIDERATION of $10.00 (ten dollars) paid by Fitzgeralds to Scout, and
for other good and valuable consideration, the parties agree as follows:
2.1 Assignment. Pursuant to the Purchase Agreement referenced in Section
1.17 hereof, Scout hereby assigns, conveys, transfers, sets over and delivers to
Fitzgeralds (a) all of Scout's rights, title and interest as lessee under the
Subject Lease, and all of Scout's rights, title and interest in and to the
leasehold estate created under the Ground Lease, and (b) all of its fee simple
interest in and to the Leasehold Improvements, subject to matters now appearing
of record and the rights of the Lessor under the Subject Lease. The parties
agree that from and after the date hereof Scout shall have no further right,
title or interest in and to the Subject Lease, the leasehold estate thereunder,
or such Leasehold Improvements. Fitzgeralds shall be and become the lessee
under the Subject Lease and the owner of the fee simple title to the Leasehold
Improvements; provided, however, this Agreement is conditional upon the
assumption by Fitzgeralds under Section 2.2 hereof of all obligations of Scout
under the Subject Lease and the consent by G and S Investment to this
Agreement.
2.2 Acceptance of Assignment and Assumption of Obligations. Fitzgeralds
hereby expressly accepts the assignment of Scout's leasehold interest under the
Subject Lease and the conveyance of Scout's fee simple interest in the Leasehold
Improvements. Fitzgeralds hereby expressly assumes all of Scout's obligations
under the Subject Lease arising from and after the date that each party hereto
has executed this Agreement and that G and S investment has consented to this
Agreement (the "Effective Date"). Fitzgeralds hereby agrees to defend,
indemnify, and hold Scout harmless from and against any and all claims which may
hereafter arise under and by virtue of the Subject Lease and Fitzgeralds'
ownership of the Leasehold Improvements from and after the Effective Date. Scout
hereby agrees to defend, indemnify and hold Fitzgeralds harmless
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from and against any and all claims which may arise or have arisen under and by
virtue of the Subject Lease and Scout's ownership of the Leasehold Improvements
prior to the Effective Date.
2.3 Representations and Warranties. Scout represents and warrants to
Fitzgeralds that Scout has not previously assigned all or part of its leasehold
interest under the Subject Lease or its fee simple interest in the Leasehold
Improvements, that no portion of such lessee's interest or leasehold interest or
property interest has been the subject of any security interest, collateral
assignment or conveyance other than the Deed of Trust and related security
instruments in favor of Scout; and that the Subject Lease is still in full force
and effect in accordance with the original terms and conditions of the Subject
Lease. Scout further represents and warrants to Fitzgeralds that Scout has full
right, power and authority to execute this Assignment and the same does not
conflict with any agreement, judgment, order, decree, rule, regulation or other
legal obligation under which Scout is bound.
2.4 Payments to G and S Investment. Scout agrees to pay the minimum rental
due each month to G and S Investment together with such other amounts as may be
due in accordance with the terms of the Subject Lease; provided, however,
Scout's agreement to pay G and S Investment shall in no way be construed as a
release of Fitzgeralds' obligations hereunder and under the Subject Lease, and
Fitzgeralds shall pay the minimum rental due each month to Scout together with
such other amounts as may be due in accordance with the terms of the Subject
Lease. G and S Investment shall have the option at any time during the term of
the Subject Lease upon prior written notice thereof to require that the minimum
rental due each month together with such other amounts as may be due in
accordance with the terms of the Subject Lease be paid directly by Fitzgeralds
to G and S Investment.
SECTION 3
MISCELLANEOUS
3.1 Heirs, Successors and Assigns. This agreement shall be binding upon and
inure to the benefit of the legal representatives, heirs, successors, and
assigns of the parties hereto.
3.2 Entire Agreement. This Agreement and the Purchase Agreement are the
entire agreements of the parties in the matters covered hereby. The parties may
not alter, amend or modify this agreement, except by a written and acknowledged
instrument executed by both parties. This agreement includes all representations
of every kind and nature made by each party to the other.
3.3 Notices. Any notice which either party may or is required to give to
the other shall be given by mailing the same, postage prepaid, sent certified
mail, return receipt requested and deposited in a receptacle for U.S. mail
addressed as hereafter provided:
TO SCOUT: - with a copy to -
Scout Development Corporation Scout Development Corporation
0000 Xxxxx Xxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000 Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxx Attention: Xxxxxxx X. Xxxxxxxx
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TO FITZGERALDS: Fitzgeralds Reno, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000
Attention: Xxxxxxx X. XxXxxxxxx
- with a copy to -
Xxxxxx & Silver, Ltd.
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxx
Notice shall be deemed received by the person or entity to whom notice
is given within seventy-two (72) hours after the date of mailing of such notice
pursuant to this Section 3.3.
The addresses to which notices shall be given may be changed or
modified from time to time, by notice given by the party whose address is
changed or is being changed to the other parties in the manner provided in this
Section 3.3.
3.4 Applicable Law. The laws of the State of Nevada shall, in all
instances, govern the interpretation and effect of this Agreement.
ASSIGNOR: ASSIGNEE:
SCOUT DEVELOPMENT CORPORATION, FITZGERALDS RENO, INC.,
a Missouri corporation a Nevada corporation
By: /s/ XXXXXXX X. XXXXXXXX By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------ --------------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. XxXxxxxxx
Title: Executive Vice President Title: Executive Vice President
& Chief Financial Officer
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STATE OF TEXAS )
) ss:
COUNTY OF XXXXXX )
On this 1st day of November, 1999, before me, the undersigned, a Notary
Public, duly commissioned and sworn, personally appeared Xxxxxxx X. Xxxxxxxx,
the Executive Vice President of Scout Development Corporation, known to me to
be the person whose name is subscribed to the within instrument, and who
acknowledged to me that he/she executed the same freely and voluntarily for the
uses and purposes therein mentioned.
[NOTARY STAMP] /s/ XXXXX X. XXXXXXXXX
-----------------------------------
Notary Public, State of Texas
STATE OF NEVADA )
) ss:
COUNTY OF XXXXX )
On this 3rd day of November, 1999, before me, the undersigned, a Notary
Public, duly commissioned and sworn, personally appeared Xxxxxxx X. XxXxxxxxx,
the Executive Vice President of Fitzgeralds Reno, Inc., to me to be the person
whose name is subscribed to the within instrument, and who acknowledged to me
that he/she executed the same freely and voluntarily for the uses and purposes
therein mentioned.
[NOTARY STAMP] /s/ XXXXX X. XXXXXXXXX
-----------------------------------
Notary Public
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CONSENT TO ASSIGNMENT
G and S Investment Company, a Nevada limited partnership, hereby consents
to the foregoing assignment and assumption in each, every, and all respects;
provided, however that such consent shall not release Scout Development
Corporation of and from any and all obligations under the Subject Lease, and
Scout Development Corporation shall remain liable to Lessor to perform all of
the obligations of Lessee under the Subject Lease.
Dated this 22nd day of November, 1999.
G and S Investment Company,
a Nevada limited partnership
By: /s/ XXXXXX X. XXXXX, XX.
------------------------------------
Name: XXXXXX X. XXXXX, XX.
----------------------------------
Title: A General Partner
---------------------------------
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
On this 22nd day of November, 1999 before me, a notary public, appeared
Xxxxxx X. Xxxxx, known to me to be General Partner of G and S Investment
Company, a Nevada limited partnership.
[NOTARY STAMP] /s/ XXXXXX X. XXXXXX
-----------------------------------
Notary Public
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EXHIBIT A
GROUND LEASE
A COPY OF THIS INSTRUMENT MAY BE REVIEWED IN THE OFFICES OF FITZGERALDS RENO,
INC. AND SCOUT DEVELOPMENT CORPORATION.
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EXHIBIT B
FIRST SUPPLEMENTAL AGREEMENT
A COPY OF THIS INSTRUMENT MAY BE REVIEWED IN THE OFFICES OF FITZGERALDS RENO,
INC. AND SCOUT DEVELOPMENT CORPORATION.
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EXHIBIT C
SECOND SUPPLEMENTAL AGREEMENT
A COPY OF THIS INSTRUMENT MAY BE REVIEWED IN THE OFFICES OF FITZGERALDS RENO,
INC. AND SCOUT DEVELOPMENT CORPORATION.
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EXHIBIT D
THIRD SUPPLEMENTAL AGREEMENT
A COPY OF THIS INSTRUMENT MAY BE REVIEWED IN THE OFFICES OF FITZGERALDS RENO,
INC. AND SCOUT DEVELOPMENT CORPORATION.
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EXHIBIT E
FOURTH SUPPLEMENTAL AGREEMENT
A COPY OF THIS INSTRUMENT MAY BE REVIEWED IN THE OFFICES OF FITZGERALDS RENO,
INC. AND SCOUT DEVELOPMENT CORPORATION.
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DESCRIPTION
All that certain lot, piece or parcel of land situate in the County of Washoe,
State of Nevada, described as follows:
PARCEL 1: (ADJUSTED PARCEL A)
A parcel of land situated within the NE 1/4 of Section 11, T19N, R19E, M.D.M.,
Reno, Washoe County, Nevada, being all of "Adjusted Parcel A" as shown on the
Record of Survey showing a boundary line adjustment for Union Pacific Railroad
Company, Scout Development Corporation, an G and S Investment Company, as
recorded on January 26, 2000 in the official records of Washoe County, Nevada,
File No. 2417487 and being further described as follows:
Beginning at the Northeast corner of Parcel A of Parcel Map Xx. 0000, Xxxx Xx.
0000000 of the Official Records of Washoe County, Nevada; thence S
13(degree)48'25"E, 105.50 feet along the Easterly line of said Parcel A; thence
S 76(degree)10'00"W, 300.64 feet; thence N 13(degree)47'50"W, 105.67 feet along
the Westerly line of said Parcel to the Northwest corner of said Parcel A;
thence N 76(degree)11'59"E, 300.62 feet along the Northerly line of said Parcel
A, to the Point of Beginning.
The above described parcel contains an area of approximately 31,743 sq. ft.
BASIS OF BEARINGS: Parcel Map No. 2461 for Southern Pacific Transportation
Company, File No. 1422392 of the Official Records of Washoe County, Nevada.
PARCEL 2: (ADJUSTED PARCEL B)
A parcel consisting of air rights situated within the NE 1/4 of Section 11,
T19N, R19E, M.D.M., Reno, Washoe County, Nevada, being all of "Adjusted Parcel
B" as shown on the Record of Survey showing a boundary line adjustment for Union
Pacific Railroad Company, Scout Development Corporation, and G and S Investment
Company, as recorded on January 26, 2000 in the official records of Washoe
County, Nevada, File No. 2417487 and being further described as follows:
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Parcel 2 Legal Continued
Beginning at a point on the Easterly line of Parcel A of Parcel Map Xx. 0000,
Xxxx Xx. 0000000 of the Official Records of Washoe County, Nevada; from which
the Northeast corner of said Parcel A bears N 13(degree)48'25"W, 105.50 feet
said point of beginning having an elevation of 4522.50 feet; thence S
13(degree)48'25"E, 53.65 feet said point having an elevation of 4522.50 feet;
thence S 76(degree)10'00"W, 300.65 feet said point having an elevation of
4525.1 feet; thence N 13(degree)47'50"W, 53.65 feet said point having an
elevation of 4525.1 feet, thence N 76(degree)10'00"E, 300.64 feet to the Point
of Beginning. Said surface shall be formed such that it maintains a constant
slope between the elevations described for the four corners.
The above described land parcel (above which the air rights are situated)
contains an area of approximately 16,130 sq. ft.
EXCEPTING THEREFROM a parcel of land situated within the NE 1/4 of Section 11,
T19N, R19E, M.D.M., Reno, Washoe County, Nevada, and being all that real
property located below a surface which has vertices defined as follows:
Beginning at a point on the Easterly line of Parcel A of Parcel Map Xx. 0000,
Xxxx Xx. 0000000 of the Official Records of Washoe County, Nevada; from which
the Northeast corner of said Parcel A bears N 13(degree)48'25"W, 106.30 feet
said point of beginning having an elevation of 4524.00 feet; thence S
13(degree)48'25"E, 52.05 feet said point having an elevation of 4524.00 feet;
thence S 76(degree)10'00"W, 300.65 feet said point having an elevation of
4526.6 feet; thence N 13(degree)47'50"W, 52.05 feet said point having an
elevation of 4526.6 feet, thence N 76(degree)10'00"E, 300.64 feet to the Point
of Beginning. Said surface shall be formed such that it maintains a constant
slope between the elevations described for the four corners.
BASIS OF BEARINGS: Parcel Map No. 2461 for Southern Pacific Transportation
Company, File No. 1422392 of the Official Records of Washoe County, Nevada.
BASIS OF ELEVATIONS: City of Reno benchmark No. 96, a nail and washer located
in the top of the curb at the Northeast corner of East Fourth Street and Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx0000.00 feet.
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PARCEL 3: (ADJUSTED PARCEL C)
A parcel of land situated within the NE 1/4 Section 11, T19N, R19E, M.D.M.,
Reno, Washoe County, Nevada, being all of "Adjusted Parcel C" as shown on the
Record of Survey showing a boundary line adjustment for Union Pacific Railroad
Company, Scout Development Corporation, and G and S Investment Company, as
recorded on January 26, 2000 in the official records of Washoe County, Nevada,
File No. 2417487 and being further described as follows:
Beginning at the Southeast corner of Parcel C of Parcel Map Xx. 0000, Xxxx
Xx. 0000000 of the Official Records of Washoe County, Nevada; thence
S 76(degree)10'00"W, 300.65 feet along the Southerly line of said Parcel C;
thence N 13(degree)47'50"W, 20.82 feet; thence N 76(degree)10'00"E, 300.65
feet; thence S 13(degree)48'25"E, 20.82 feet to the Point of Beginning.
The above described parcel contains an area of approximately 6,260 sq. ft.
BASIS OF BEARINGS: Parcel Map No. 2461 for Southern Pacific Transportation
Company, File No. 1422392 of the Official Records of Washoe County, Nevada.
PARCEL 4:
All buildings and improvements located on the real property described in
Parcels 1 through 3 above.
[STAMP]
