EXHIBIT 10.8
LEASE
THIS LEASE, dated for reference purposes only, the 1st day of June, 1998,
is made by and between STEER ENTERPRISES, INC. ("Lessor") and MISSOURI
DEVELOPMENT COMPANY, a Nebraska corporation ("Lessee").
1. PREMISES LEASED. Subject to the terms and conditions hereinafter set
forth, Lessor hereby leases to Lessee and Lessee hereby leases from Lessor
that certain real property, including all improvements located thereon,
located at 00000 Xxxxxx Xxxxxx in the City of Omaha, County of Xxxxxxx, State
of Nebraska, and legally described on EXHIBIT A attached hereto and
incorporated by reference herein (the "Premises").
2. TERM. The term of this Lease shall be as follows:
(a) EFFECTIVE DATE. The effective date of this Lease shall be as of 1st
day of June, 1998 (the "Effective Date");
(b) TERM. The term of this Lease shall be five (5) year(s) commencing on
the Effective Date.
(c) RENEWAL OPTION. So long as Lessee is not then in default of any of
its obligations under this Lease, Lessee shall have the option to
renew and extend this Lease three (3) additional term(s) of five (5)
year(s) each, upon the same terms and conditions, except rental, as
provided herein, by giving Lessor notice of Lessee's election to
renew or extend this Lease at least 180 days prior to the expiration
of the then current primary or renewal term.
3. RENTAL. Lessee shall pay to Lessor at the location identified in
Section 23 below as rental for the Premises during the primary or any renewal
term of this Lease, the sum of $6,800.00 monthly (the "Base Rent"), in
advance. The first Base Rent payment shall be due on the Effective Date and
successive monthly Base Rent payments shall be due and payable on the first
day of each successive month thereafter during the term of this Lease. Base
Rent for any portion of a calendar month shall be prorated on a per diem
basis. In the event Lessee validly exercises any of its option to renew the
term of the Lease as provided in Section 2(b) above, the monthly Base Rent
during the first renewal term shall be $7,310.00; during the second renewal
term shall be $7,858.25 and during the third renewal term shall be $8,447.62.
4. USE AND OCCUPATION OF PREMISES; COMPLIANCE WITH LAW. Lessee, by taking
possession of the Premises, accepts the same in their existing condition
without any representation or warranty, express or implied (except as
otherwise provided in this Lease), as to the condition of the Premises or any
improvements thereon or as to the use that may be made thereof. Lessee may
only use the Premises for the operation of a steakhouse restaurant and Lessee
shall not use the Premises for any other purpose without obtaining the prior
written consent of Lessor. During the term of this Lease, the Premises shall
be kept in a clean and wholesome condition, free from any disorderly conduct,
noise, odor or nuisance.
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Lessee shall at all times during the term of this Lease, at Lessee's own
cost and expense, perform and comply in all respects with all laws (including
all Environmental Laws), statutes, rules, orders, ordinances, regulations and
requirements now or hereafter enacted or promulgated, of every government and
municipality having jurisdiction over the Premises and of any agency thereof
and any applicable judgments, decrees, injunctions, writs, orders or like
actions of any court, arbitrator or administrator, or agency of competent
jurisdiction (collectively, "Applicable Laws") relating to the Premises or
any of the facilities or equipment therein, and Lessee shall so perform and
comply, whether or not such Applicable Laws shall now exist or shall
hereafter ben enacted or promulgated. Lessee shall also observe and comply in
all material respects with the requirements of any permits relating to the
Premises and all public liability, fire or other policies of insurance at
anytime enforced wit respect to the Premises.
Lessor hereby represents that the Premises is, or on the commencement
date of this Lease shall be, in material compliance with all laws (including
all Environmental Laws), statutes, rules, orders, ordinances, regulations,
and requirements now in existence of every government and municipality having
jurisdiction over the Premises and of any court, arbitrator, or
administrator, or agency of competent jurisdiction (collectively, "Applicable
Laws") relating to the Premises or any of the facilities of equivalent
therein. Lessor further represents that it, and Lessee has observed and
complied in all material respects with the requirements of any permits
relating to the Premises.
5. SECURITY DEPOSIT. Upon execution of this Lease by Lessee, Lessee
shall pay to Lessor a security deposit in the amount of $6,800.00 which shall
be held by Lessor, without interest, as security for the faithful performance
by Lessee of all the terms of this Lease by Lessee to be observed and
performed. Lessor shall have the right to commingle said security deposit with
its other funds.
If Lessee fails to pay any rent reserved or any other sum payable by
Lessee to Lessor pursuant to this Lease, or if Lessee should fail to perform
any other term of this Lease, then Lessor may, at its option and without
prejudice to any other remedy which Lessor may have on account thereof, apply
all or any portion of said security deposit toward the payment of rent or
other charges due or less or damage sustained by Lessor due to such breach on
the part of Lessee. In the event any proceedings are commenced by or against
Lessee under any chapter of the Bankruptcy Act, said security deposit shall
be deemed to be applied first to the payment of rent and other charges due
Lessor for all periods prior to the filing of such proceedings.
6. TAXES. Lessee covenants and agrees to pay, at the time of payment of
the monthly rent, as additional rent any privilege, sales, gross income or
other tax imposed upon or measured by the rentals from the Premises and the
appurtenances thereof. Lessee shall also pay during the term of this Lease,
within 30 days prior to delinquency, all real estate and personal property
taxes and assessments imposed upon the Premises, and the land upon which it
is situated and any furniture, fixtures or equipment located on or about the
Premises.
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7. UTILITIES. Lessee agrees to pay before delinquency all charges for all
utilities used at the Premises, including, but not limited to, water ,gas,
heating, cooling, electricity, telephone and power, and Lessee agrees not to
permit any charges of any kind to accumulate or become a lien against the
Premises.
8. INSURANCE; INDEMNITY. (a) Lessee will, at its own expense, carry and
maintain "all risks" insurance coverage, on a per occurrence basis, against
all hazards, including, but not limited to, fire, theft, and extended
coverage insurance naming Lessor and Lessor's lender or lenders as loss
payees thereunder. Such policies of insurance shall be in an amount not less
than the full replacement value of the Premises as determined by Lessor,
written by a financially sound and reputable insurer reasonably acceptable to
Lessor, and shall provide for at least 30 days written notice of cancellation
or material alteration to Lessor. Lessee shall furnish certificates as proof
of such insurance upon execution of this Lease by Lessee and within 10 days
after request therefore by Lessor. Any fire, theft and extended coverage
insurance with respect to the Premises shall name Lessor as loss payee and
any proceeds from such insurance received by Lessor shall be applied in
accordance with the terms and provisions of Section 11 hereof. Any such
deductible under such policy shall not exceed $1,000.00 per occurrence and
Lessee shall be responsible for the payment for all deductibles and repairs
falling within such deductible.
(b) Lessee shall maintain during the term of this Lease, at its expense,
a commercial general public liability insurance policy, for injury, death or
damage which might result from Lessee's occupation of the Premises or
business either to persons or property, in amounts not less than
$2,000,000.00 as to injury or loss of life of one person, $2,000,000.00 as to
injury and loss of life to all persons arising out of a single accident or
disaster, and $100,000.00 for accident or property damage liability. Lessee
shall also maintain during the term of this Lease, at its own expense,
insurance covering all plate glass in the Premises in an amount equal to
their full replacement value from time to time insuring the same against
breakage and other damage. Lessee shall also maintain during the term of this
Lease, at its expense, insurance covering all of Lessee's improvements,
fixtures, merchandise and other property.
(c) All such insurance to be maintained by Lessee pursuant to Section
8(b) above shall be for the mutual benefit and protection of Lessor and
Lessee shall name Lessor as coinsured and shall additionally contain a
provision to the effect that Lessor, although coinsured, shall be entitled to
recovery under said insurance for any loss or damage occasioned to it or its
servants, agents, employees, customers, visitors or licensees. Each insurance
policy shall provide that it may not be cancelled without giving Lessor
thirty (30) days prior written notice thereof. A copy of each insurance
policy and any renewals thereof shall be furnished by Lessee to Lessor.
(d) Lessee agrees to indemnify and hold harmless Lessor from and against
all third-party claims of whatever nature arising from any act, omission or
negligence of Lessee, or Lessee's officers, agents or employees, or arising
from any accident, injury or damage whatsoever caused to any third person,
or to the property of any such person, occurring during the term of this
Lease in or about the Premises or arising from any accident, injury or
damage occurring outside the Premises where such accident, damage or
injury results from an act or
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omission on the part of Lessee or Lessee's officers, agents or employees.
Lessee does also hereby indemnify Lessor against any expense, loss or
liability paid, suffered or incurred as the result of any breach by Lessee,
its servants, against, employees, customers, visitors or licensees, of any
covenant or condition contained in this Lease or as a result of Lessee's use
or occupation on the Premises or the careless, negligent or improper conduct
of Lessee, its servants, agents, employees, customers, visitors or licensees.
9. ALTERATIONS. Lessee shall not make any improvements, alterations,
additions, or changes to the Premises without obtaining the prior written
consent of Lessor. If Lessee desires to make any improvements, alterations,
additions or changes to the Premises, Lessee shall furnish Lessor with plans
and specifications for same, together with a written bid from a licensed
contractors reasonably acceptable to Lessor. All costs of construction shall
be borne by Lessee. Notwithstanding the foregoing, Lessee shall not make any
improvements, alterations, additions or changes of any nature to the exterior
or roof of the Premises. All alterations, additions or improvements installed
in the Premises at any time, either by Lessee or by Lessor on behalf of
Lessee, shall become the property of Lessor shall become the property of
Lessor and shall remain upon and be surrendered with the Premises unless
Lessor, by notice to Lessee not later than twenty (20) days prior to the
termination of this Lease, elects to have them removed by Lessee, in which
event, the same shall be removed from the Premises by Lessee forthwith at
Lessee's expense. Nothing contained herein shall be construed to prevent
Lessee's removal of trade fixtures, but upon removal of any such trade
fixtures from the Premises, or upon removal of other installations as may be
required by Lessor, Lessee shall immediately, and at is expense, repair and
restore the Premises to the condition existing prior to installation and
repair any damage to the Premises due to such removal. All property permitted
or required to be removed by Lessee at the end of the term remaining in the
Premises after Lessees removal shall be deemed abandoned and may, at the
election of Lessor, either be retained as Lessor's property or may be removed
from the Premises by Lessor at Lessee's expense.
10. MAINTENANCE OF PREMISES. Lessee shall, at its sole expense, keep and
maintain the exterior and interior of the Premises, including but not limited
to all plumbing, heating and air-conditioning equipment serving the Premises,
all fixtures and equipment therein and all window casements or frames, plate
glass, doors and door frames, locks, closing devices and Lessee's signs, and
the walls, roofs, foundations and all parking lots, driveways and landscaped
areas in good condition and repair during the term of this Lease. Lessee
shall keep the Premises in the condition required from time to time by all
applicable municipal, county, state and federal ordnances, law, rules and
regulations.
If Lessee refuses or neglects to timely make repairs or otherwise
maintain the Premises in accordance with the provisions hereof and in a
manner satisfactory to Lessor, Lessor shall have the right, but shall not be
obligated, to make any or all such repairs or perform any or all such
maintenance on behalf of and for the account of Lessee upon giving ten (10)
days written notice to Lessee of its intention to do so. In such event, all
sums expended and all expenses incurred by Lessor in connection with the
foregoing shall be additional rent hereunder, payable
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on demand, and bearing interest from the date of such expenditure or
occurrence at the highest legal rate permitted by law.
No exercise by Lessor of any rights reserved herein shall entitle Lessee
to any damages for any injury to the property or business of Lessee or
inconvenience occasioned thereby nor to any abatement of rent.
11. DAMAGE OR DESTRUCTION TO PREMISES. In the event of substantial
damage, unless this Lease is terminated as hereinafter provided, Lessor shall
with all due diligence commence to repair the Premises to the same condition
as existed immediately prior to such damage, and Lessor shall complete such
repair with due diligence and dispatch, and this Lease shall remain and
continue in full force and effect; provided, that such loss is insured and
that all proceeds of such insurance coverage are made available to Lessor and
are not subject to any superior right thereto of any other party; provided,
further that Lessee shall repair all damage caused by the acts or omissions of
Lessee or Lessee's officers, employees, agents or contractors and further
provided, that Lessee shall, at its sole expense, diligently repair, restore
or replace all damage or destroyed leasehold improvements, fixtures,
furniture, equipment and other property of Lessee in, on or at the Premises.
Lessor repair responsibilities hereunder shall be limited to available
insurance proceeds, and Lessee shall be responsible for all repair costs in
excess of available insurance proceeds. There shall be no abatement of rent
during any such repair period. If the damage is not repaired within ninety
(90) days after the date the damage occurs, Lessee shall have the right to
terminate this Lease by giving Lessor written notice. Upon such termination,
any unearned rent or other payments paid in advance beyond the date of damage
shall immediately be refunded to Tenant.
In the event the damage to the Premises by fire or any other casualty (but
not including any damage caused by the acts or omissions of Lessee or
Lessee's officers, employees, agents, contractors or employees) equals or
exceeds fifty percent (50%) of the replacement value thereof as of the date
such damage occurs, either Lessee or Lessor may elect to terminate this Lease
by giving notice in writing of such election to the other party within thirty
(30) days from the date the damage occurs. Upon such termination, any
unearned rent or other payments paid in advance beyond the date of damage
shall immediately be refunded to Lessee.
If Lessor and Lessee cannot agree whether damage or destruction of the
Premises is "minor damage" or "substantial damage" or whether the damage to
the Premises equals or exceeds fifty percent (50%) of its replacement value,
then the parties agree to submit such disputed issue or issues to binding
arbitration. Within forty-five (45) days of such damage or destruction, each
party shall select an arbitrator who is a duly licensed general contractor in
the State of Nebraska. If these arbitrators are unable to agree upon the
issue or issues submitted to them within ten (10) days following their
appointment, then such arbitrators shall elect a third arbitrator of like
qualification, and the decision of the third arbitrator shall be controlling.
Each party to this Lease shall pay for the services of its selected
arbitrator. The decision of the arbitrators or arbitrator in regard to any
issue or issues submitted shall be final and binding upon the parties.
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12. CONDEMNATION. Should the Premises or any portion thereof be taken
for public use by right of eminent domain with or without litigation, any
award for compensation and/or damages, whether attained by agreement prior to
or during the time of trial, or by judgement or verdict after trial, applying
to the leasehold estate created hereby other than that portion of said award,
if any, based upon a taking of Lessee's movable trade fixtures shall belong
and be paid to Lessor, and Lessee hereby assigns, transfers and sets over to
Lessor all of the right, title and interest which it might otherwise have
therein. In the event the portion of the Premises so taken shall be more than
fifteen percent (15%) of the floor area of the Premises, Lessee shall have
the option, to be exercised by written notice given to Lessor within thirty
(30) days after the date of such taking, to terminate this Lease. In the
event that more than fifteen percent (15%) of the floor area of the Premises
shall be so taken and Lessee does not so elect to terminate this Lease, or if
less than fifteen percent (15%) of the floor area of the Premises is so
taken, then the minimum monthly rent payable under this Lease shall be
reduced in the same proportion as the amount of said floor area is reduced by
such taking and Lessor shall make such reconstruction of the Premises as may
be required to the extent of the aforesaid award.
13. ASSIGNMENT AND SUBLETTING. Lessee shall not assign this Lease or any
interest herein, or mortgage or hypothecate this Lease or any interest
herein, or sublet the Premises in whole or in part, without obtaining the
written consent of Lessor, which consent will not be unreasonably withheld.
If Lessee is a corporation, the issuance or a transfer of any of the shares
of stock of said corporation (except to member of transferor's immediate
family by gift, devise or bequest) which results in a change in the ownership
of the majority of the issued and outstanding shares of stock of said
corporation as of this Lease, shall be deemed to be an assignment prohibited
hereby.
Lessor shall have the right to assign, transfer and convey all or any
part of its interest in this Lease or in the Premises at any time. Lessor's
obligations to Lessee shall cease wholly or partly, as the case may be, as of
the effective date of such assignment, transfer or conveyance and Lessee
shall thereafter look solely to the assignee, transferee or purchaser thereof.
In the event of any such assignment, transfer, or conveyance of all or any
part of Lessor's interest herein, either voluntarily or involuntarily, as a
result of a foreclosure of any mortgage or deed of trust, or otherwise,
Lessee hereby agrees to attorn to, and become the Lessee of any assignee,
successor in interest or purchaser of Lessor's interest here.
14. DEFAULT BY LESSEE AND REMEDIES.
a. DEFAULT. The occurrence of any one or more of the following events
shall constitute a material default and breach of this Lease by Lessee;
(i) The failure by Lessee to make any payment of rent, additional
rent or any other payment required to be made by Lessee
hereunder within five (5) days after the same shall be due.
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(ii) The failure by Lessee to observe or perform any other
covenant, condition or provision of this Lease to be observed
or performed by Lessee where such failure shall continue for a
period of thirty (30) days after written notice thereof is
given by Lessor to Lessee.
(iii) The abandonment of the Premises by Lessee for a period of
thirty (30) days.
(iv) Lessee makes an assignment for the benefit of creditors or a
receiver is appointed to take possession of substantially all
of Lessee's assets located in the Premises or of Lessee's
interest in this Lease, or a petition is filed by or against
Lessee under any section of the Bankruptcy Act which is not
dismissed within sixty (60) days thereafter, or substantially
all of Lessee's assets located in the Premises of Lessee's
leasehold interest in the Premises are attached or taken by
other judicial seizure.
b. REMEDIES. In the event of any such material default or breach by
Lessee, Lessor shall have the right, at its election, adhering to applicable
legal processes without further notice or demand, to re-enter upon the
Premises and take possession of the same and of all equipment and fixtures
therein, including the right to change door locks and suspend utilities and
services and expel or remove Lessee and all other parties occupying the
Premises using such force as may reasonably be necessary to do so without
being liable to Lessee for any loss or damage occasioned thereby; such
property may be removed and stored in any place for the account of and at the
expense and risk of Lessee, and Lessee will pay to Lessor on request any and
all expenses incurred in such removal and any storage charges therefore; or
Lessor may, at its option, without notice to Lessee, sell said property for
such price and upon such terms as Lessor may determine, applying the proceeds
of such sale upon any amounts due under this Lease, including the expenses of
removal and sale.
Should Lessor elect to re-enter as herein provided or should it take
possession pursuant to legal proceedings, it may terminate this Lease or it
may, from time to time, without terminating this Lease, relet the Premises or
any part thereof for such term or terms and at such rental or rentals and
upon such other terms and conditions as Lessor in its sole discretion may
deem advisable with the right to make alterations and repairs to the Premises
at the expense of Lessee, or it may avail itself of any other right or remedy
granted by law or equity, to be exercised cumulatively or successively as the
law permits. In the event that Lessor relets the Premises from time to time,
Lessee shall have no right or authority whatever to collect any rentals
received thereunder and rentals so received by Lessor shall be applied first
to the payment of any indebtedness, other than rent, due hereunder from
Lessee to Lessor, then to the payment of any cost of such reletting,
including attorney's fees and leasing commissions which Lessor may have paid
or incurred in connection with such repossession and reletting, then to the
payment of the cost of any alteration or repair to the Premises to make them
tenantable or acceptable to a new tenant, then to the payment of rent due and
unpaid hereunder, and the
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residue, if any, shall be held by Lessor and applied in payment of future
rent as the same may become due and payable thereafter.
Whether or not the Premises are relet, Lessee shall pay Lessor all
amounts required to be paid by Lessee up to the date of Lessor's re-entry,
and thereafter Lessee shall pay Lessor until the end of the term of this
Lease the amount of all rentals and other charges required to be paid by
Lessee hereunder, less the proceeds of such reletting during the term hereof,
if any, after payment of the foregoing. Such payments by Lessee shall be due
at such times as we are provided in this Lease, and Lessor need not delay any
action to recover such payments until the termination of this Lease. Lessor
shall not by such re-entry or other act be deemed to have terminated this
Lease or the liability of Lessee for the total rent reserved hereunder unless
Lessor shall give to Lessee written notice of Lessor's election to terminate
this Lease as provided herein, and Lessor shall thereupon be entitled to
recover from Lessee the worth, at the time of such termination, of the
excess, if any, of the rent and other charges required to be paid by Lessee
hereunder for the balance of the term of this Lease (if this Lease has not
been so terminated) over the then reasonable rental value of the Premises for
such period.
In addition to any other remedy provided to Lessor herein, and regardless
of which remedy or remedies are exercised by Lessor, upon any default or
breach of this Lease by Lessee which is not cured within the time period
provided in Section 14.a above, Lessor shall have the option to purchase, and
Lessee hereby grants Lessor the option to purchase, all furniture, fixtures
and equipment located in or about the Premises, which Lessor shall pay a
purchase price therefore equal to the amount of the existing loan debt
against such furniture, fixtures and equipment. Upon the exercise of such
option, Lessee shall, within 15 days after request therefore from Lessor,
convey said furniture, fixtures and equipment to Lessor by xxxx of sale.
15. RULES AND REGULATIONS. Lessee agrees and covenants that it shall
comply with all rules and regulations regarding the use and occupancy of the
Premises as Lessor shall in its sole discretion establish from time to time.
Upon the (10) days written notice to Lessee, Lessor shall have the right to
repeal, amend, alter or supplement such rules and regulations.
16. ACCESS TO PREMISES. Lessor shall have the right to enter upon the
Premises at all reasonable times for the purpose of examining or inspecting
the Premises or showing the same to prospective purchasers or tenants or
lenders. Lessor shall have the right to place a sign upon the Premises
indicating that the Premises are for rent, lease or sale sixty (60) days
prior to the expiration of the term of this Lease.
17. SURRENDER OF THE PREMISES. Upon the expiration or sooner termination
of this Lease, Lessee shall quit and surrender to Lessor the Premises and all
improvements thereon, in good order and condition, ordinary wear excepted.
18. HOLDING OVER. If Lessee shall remain in possession of the Premises
after the expiration or sooner termination of this Lease, such occupancy
shall, at the sole option of
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Lessor, be a tenancy from month to month upon all of terms and provisions
hereof. Said monthly tenancy may be terminated by Lessor upon giving Lessee
prior written notice.
19. SUBORDINATION. Lessee's interest under this Lease at the option of
Lessor is and shall be subject, subordinate and inferior to the lien of any
mortgage or deed of trust now or hereafter placed by Lessor upon the Premises
and to all renewals, modifications, consolidations, replacements or
extensions thereof. The parties hereto intend that the foregoing provision
shall be self-operative and that no further instrument shall be required to
effect such subordination, but Lessee shall, within 10 days after request
from Lessor, at any time or times execute and deliver any and all instruments
that may be reasonably necessary or proper to effect such subordination or
to conform or evidence the same.
20. CERTIFICATE OF LEASE. At any time and from time to time Lessee
agrees, within 10 days after request from Lessor, to execute, acknowledge and
deliver to Lessor a statement in writing and in recordable form certifying
that this Lease is in full force and effect and setting forth such other
matters and information as may be reasonably required from a prospective
mortgagee or purchaser of the Premises. Lessee agrees that any such statement
delivered pursuant to this section may be relied upon by any prospective
purchaser, mortgagee or assignee of any mortgagee of the Premises.
21. WAIVER. Lessee hereby releases and waives, on behalf of itself and
any company, firm or individual insuring Lessee or Lessee's property, any
claim or right of subrogation against Lessor which would otherwise arise in
favor of any such party. Lessee agrees that, to the extent that such
endorsement is available, it will obtain for the benefit of Lessor a waiver of
any right of subrogation from Lessee's insurers.
22. NOTICES. All notices under this Lease must be in writing and either
hand-delivered or sent by United States certified or registered mail, postage
prepaid, addressed as follows, except that any party may by written notice
given as aforesaid change its address for subsequent notices to be given
hereunder:
(a) Lessor: Steer Enterprises, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
(b) Lessee: Missouri Development Company
0000 "X" Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx
23. TIME OF ESSENCE. Time shall be of the essence of this Lease and
each of the provisions herein.
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24. CUMULATIVE REMEDIES. No remedy or election given by any provision in
this Lease shall be deemed exclusive unless so indicated but it shall,
wherever possible, be cumulative with all other remedies in law or equity,
except as otherwise herein specifically provided.
25. WAIVER. No waiver by Lessor of any provision of this Lease shall be
effective except by an instrument in writing signed by Lessor and shall not
be deemed to be a waiver of any other provisions hereof or of any subsequent
breach by Lessee of the same or any other provision. If Lessor consents to or
approves of any act by Lessee, such consent or approval shall not be deemed
to be a waiver of any requirement of Lessor's consent to or approval of any
subsequent act of Lessee, whether or not similar to the act so consented to
or approved. No act or thing done by Lessor or Lessor's agents during the
term of this Lease shall be deemed an acceptance of a surrender of the
Premises and no agreement to accept such a surrender shall be valid unless in
writing and signed by Lessor. No employee of Lessor, or of Lessor's agents,
shall have any power to accept the keys to the Premises prior to the
termination of this Lease and the delivery of the keys to any such employee
shall not operate as a termination of this Lease or a surrender of the
Premises.
26. ENTIRE AGREEMENT. This Lease and the covenants and agreements set
forth herein are and shall constitute the entire agreement between the
parties. No prior agreement or understandings, verbal or otherwise, of the
parties, their agents, servants, employees or attorneys shall be valid or
enforceable unless embodied in this Lease. Each party to this Lease hereby
acknowledges and agrees that the other party has made no warranties,
representations, covenants and agreements, express or implied, to such party
other than those expressly set forth herein, and that each party in entering
into and executing this Lease has relied upon no warranties, representations,
covenants, or agreements other than those expressly set forth herein. This
lease may not be altered or amended in any respect except by an agreement in
writing executed by Lessor and Lessee.
27. BENEFITS. This Lease shall be binding upon and inure to the benefit
of the parties hereto and their representatives, successors and permitted
assigns.
28. ENVIRONMENTAL INDEMNITY.
(a) (i) Lessee shall keep and maintain the Premises in compliance with,
and shall not cause or permit the Premises to be in violation of, applicable
environmental laws (below defined). Lessor shall have the right, at all
reasonable times, to inspect the Premises to confirm Lessee's compliance with
the foregoing.
(ii) Lessee will promptly notify Lessor of any changes in the
Lessee's operations and shall likewise promptly notify Lessor upon Lessee's
receipt of any warning, notices, notices of violations, lawsuits or the like
received by Lessee from any governmental or similar agency relating to
lawsuits filed by third parities relating to environmental impacts and/or
releases of hazardous materials, hazardous wastes, hazardous substances or
substances having a negative
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environmental impact on the Premises, or the discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Premises
of which Lessee becomes aware which might cause the Premises or any portion
thereof to be in violation of any environmental law or subject to any
restriction on ownership, occupancy, transferability or use under any
environmental law.
(b) (i) If any investigation, site monitoring, containment, cleanup,
removal, restoration or other remedial work of any kind or nature
(collectively, the "Remedial Work") is required reasonably necessary or
desirable under any applicable environmental law because of or in connection
with the current or future presence, suspected presence, release or
suspected release of a hazardous substance into the air, soil, ground water,
surface water, or soil vapor on, under or about the Premises or any portion
thereof, Lessee shall promptly commence and diligently prosecute to
completion all such Remedial Work. In all events, such Remedial Work shall be
commenced within twenty (20) days after any demand therefor by lessor, or
such shorter period as may be required under any applicable environmental law.
(ii) All Remedial Work shall be performed by contractors, and under
the supervision of an independent consulting engineer, each approved in
advance by Lessor. All costs and expenses of such Remedial Work and Lessor's
monitoring or review of such Remedial Work (including reasonable attorneys
fees) shall be paid by Lessee. If Lessee does not timely commence and
diligently prosecute to completion the Remedial Work, Lessor may (but shall
not be obligated to) cause such Remedial Work to be performed, and all costs
and expenses thereof (including reasonable attorneys fees) shall be
considered as rental and shall, together with interest thereon, be paid by
Lessee to Lessor immediately upon demand.
(iii) Except with Lessor's prior consent, Lessee shall not commence
any Remedial Work (unless required to be immediately commenced by
governmental authorities and after immediate notice thereof to Lessor) or
enter into any settlement agreement, consent decree or other compromise
relating to any hazardous substances or environmental laws which might, in
Lessor's sole judgment, impair the value of Lessor's security hereunder.
Lessor's prior consent shall not be required, however, if the presence or
threatened presence of hazardous substances on, under or about the Premises
poses an immediate threat to the health, safety or welfare of any person or
is of such a nature that an immediate remedial response is necessary, and it
is not possible to obtain Lessor's prior consent. In such event, Lessee shall
notify Lessor as soon as practicable of any action taken.
(c) Lessee shall provide annual certifications to Lessor that it is in
compliance with the environmentally related restrictions of this Lease.
(d) Lessee shall protect, indemnify and hold Lessor and Lessor's
directors, officers, employees, agents, successors and assigns harmless from
and against any and all loss, damage, cost, expense and liability (including
reasonable attorneys fees) directly or indirectly arising out of or
attributable to the installation, use, generation, manufacture, production,
storage, release, threatened release, discharge, disposal or presence of a
hazardous substance on, under or about
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the Premises or any portion thereof including (i) all foreseeable
consequential damages, (ii) the costs of any required or necessary repair,
cleanup or detoxification, and (iii) the costs of the preparation and
implementation of any closure, remedial or other required plans. This
indemnity shall survive the termination or other ending of this Lease.
Notwithstanding anything herein to the contrary, the liability of Lessee for
the indemnity in this paragraph shall be limited to environmental matters
which arise, regardless of how caused, after the Effective Date hereof and
prior to the latter of the termination of this Lease or the discovery of
Lessee's noncompliance with the terms of this Section.
(e) Notwithstanding other provisions of this Lease, Lessor shall have
the right to terminate the Lease for Lessee's failure to comply with the
environmentally related provisions hereof, ten days following delivery of
notice by Lessor to Lessee thereof.
(f) "Environmental Law" shall mean, for purposes hereof, any federal,
state or local law, statute, regulation or ordinance, and any judicial or
administrative order or judgment thereunder, pertaining to health, industrial
hygiene or the environmental or ecological conditions on, under or about the
Premises, including each of the following as to date or hereafter amended:
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. Sections 9601-9657; the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. Sections 6901-6991(i); the Toxic Substances Control
Act, 15 U.S.C. Sections 2601-2629; the Water Pollution Control Act (also
known as the Clean Water Act), 33 U.S.C. Section 1251 ET SEQ., and the
Hazardous Materials Transportation Act, 49 U.S.C. Section 18 ET SEQ.
(g) "Hazardous Substance" shall mean for purposes hereof any material,
waste or substance which is:
(i) included within the definitions of "hazardous substances,"
"hazardous materials," "toxic substance," or "solid waste" in or pursuant to
any environmental law, or subject to regulation under any environmental law;
(ii) listed in the United States Department of Transportation
Optional Hazardous Materials Table, 49 C.F.R. Section 172.101, as to date or
hereafter amended, or in the United States Environmental Protection Agency
List of Hazardous Substances and Reportable Quantities, 40 C.F.R. Part 302,
as to date or hereafter amended; or
(iii) explosive, radioactive, asbestos, a polychlorinated biphenyl,
oil or a petroleum product.
(h) During the period that Lessor has owned the Premises, the Premises
has been owned, leased, and operated in material compliance with all federal,
state, or local laws, statutes, ordinances, regulations, rules, judgments,
orders, notice requirements, court decisions, permits, licenses, agency
guidelines or principles of law, which (i) regulate or relate to the
protection or cleanup of the environment, the use, treatment, storage,
transportation, handling, or disposal of hazardous, toxic or otherwise
dangerous substance, wastes or materials (whether
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gas, liquid, or solid), the preservation or protection of waterways,
groundwater, drinking water, air, wildlife, plants or other natural
resources, or the health and safety of persons or property, including without
limitation protection of the health and safety of employees or (ii) impose
liability with respect to any of the foregoing, including without limitation
the Federal Water Pollution Control Act (33 U.S.C. Section 1251 ET SEQ.),
Resource Conservation & Recovery Act (42 U.S.C. Section 6901 ET SEQ.)
("RCRA"), Safe Drinking Water Act (21 U.S.C. Section 349, 42 U.S.C. Section
201, 300f) Toxic Substances Control Act (15 U.S.C. Section 2601 ET SEQ.),
Clean Air Act (42 U.S.C. Section 7401 ET SEQ.), Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. Section 9601 ET SEQ.)
("CERCLA") or any other similar federal, state, or local law of similar effect,
each as amended ("Environmental Laws"). Lessor has not received any notice
that there is pending or threatened lawsuit, governmental action or other
legal action claiming that the Premises are in violation of the provisions of
any Environmental Law or in non-compliance or violation with the conditions
of any permit required under any Environmental Law.
Any handling, transportation, storage, treatment, or use of any quantity of
hazardous, toxic or otherwise dangerous substances, materials, or wastes,
whether solid, liquid or gas, including but not limited to asbestos in any
form, urea formaldehyde, PCB's, radon gas, crude radioactive substance, any
infectious reactive, corrosive, ignitable or flammable chemical or chemical
compound ("Hazardous Materials"), that has occurred on the Premises while
Lessor has owned the Premises has been in compliance with all Environmental
Laws and performed in a manner that will not result in liability of Lessor or
Tenant under any Environmental Law.
Lessor is not aware of any present or past Environmental Conditions (as
defined below) in any way relating to the Premises. "Environmental
Conditions" mean the introduction into the soil, groundwater, soil vapor or
environment of the Premises (through leak, spill, release, discharge, escape,
migration, emission, dumping, disposal or otherwise) of any chemical or
chemical compound, including without limitation any contaminant, irritant or
pollution or other Hazardous Material (whether gas, liquid, or solid)
(whether or not such introduction constituted at the time thereof a violation
of any Environmental Law), as a result of which Lessor or Lessee has or may
become liable to any person or entity.
Lessor agrees to indemnify, defend (with counsel approved by Tenant) and hold
Tenant and its directors, officers, employees, and agents harmless from any
and all claims, judgments, damages (including consequential damages),
penalties, fines, costs, liabilities (including sums paid in settlement of
claims) or loss including attorney's fees, consultant fees,and expert fees
(consultants and experts to be selected by Tenant) from or in connection with
(i) any Environmental Condition caused by Lessor (ii) any liability arising
under any Environmental Law on account of the conduct of Lessor, or (iii) the
breach of any of the representations or warranties contained in this Lease.
Without limiting the generality of the foregoing, the indemnification
provided by this paragraph shall specifically cover costs incurred in
connection with any investigation of site conditions or any cleanup,
remedial, removal or restoration work required by any federal, state or local
governmental agency or political subdivision because of any Environmental
Condition, unless the Environmental Condition is a direct result of the
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Tenant's use of the Premises or the acts or inactions or willful misconduct
of Tenant's officers, employees, agents, or invitees.
IN WITNESS WHEREOF, the parties hereto have executed this Lease in
duplicate the day and year first above written.
LESSOR LESSEE
STEER ENTERPRISES, INC. MISSOURI DEVELOPMENT COMPANY
By: /s/ illegible By: /s/ illegible
--------------------------------- -----------------------------
Title: President Title: Secretary
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EXHIBIT A
Lot 1, Xxxxx'x Addition, a Subdivision, as surveyed, platted and recorded in
Xxxxxxx County, Nebraska.
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GUARANTY
In consideration of Landlord's entering into the Lease dated June 1,
1998 between STEER ENTERPRISES, INC., as Landlord, and MISSOURI DEVELOPMENT
COMPANY, as Tenant (herein called the "Lease"), and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged by the
undersigned, a principal shareholder of Tenant (herein called "Guarantor").
Guarantor guarantees the full and punctual payment of rent and other charges,
rates, and sums to be paid by Tenant under the Lease and the performance by
Tenant of all of the terms and conditions thereof, and agrees:
(1) That, if Tenant shall default in the payment or performance of any
of its obligations under the Lease, Guarantor will pay to Landlord any
payment that may be due to Landlord or perform any obligation accruing by
reason of such default, together with all damages that may arise in
consequence thereof and all attorneys' fees that may be incurred by Landlord
in enforcing such covenants and agreements set forth in the Lease or in
enforcing the covenants and agreements of Guarantor herein, all without
requiring notice from Landlord of any default by Tenant, which notice is
hereby waived by Guarantor;
(2) That, at Landlord's option, the Guarantor may be joined in any
action or proceeding commenced by Landlord against Tenant in connection with
and based upon the Lease or any provision thereof, and that recovery may be
had against the Guarantor in any such action or proceeding or in any
independent action or proceeding against the Guarantor, without any
requirement that Landlord, its successors or assigns, first assert, prosecute
or exhaust, any remedy or claim against Tenant, its successors and assigns;
(3) That, in the event of any bankruptcy, reorganization, winding-up or
similar proceedings with respect to Tenant, no limitation on Tenant's
liability under the Lease which may now or hereafter be imposed by any
federal, state or other statute, law, regulation or judicial or
administrative determination applicable to such proceedings shall in any way
limit Guarantor's obligation hereunder, which obligation is co-extensive with
Tenant's liability as set forth in the Lease without regard to any such
limitation;
(4) That, this Guaranty shall be absolute and unconditional and shall
be in full force and effect notwithstanding any amendment, addition,
assignment, sublease, transfer, renewal, extension or other modification of
the Lease, whether or not Guarantor shall have knowledge or have been
notified of or agreed or consented thereto;
(5) That, the validity of this Guaranty and the obligations of
Guarantor hereunder shall not in any way be terminated, affected or impaired
by reason of any action which Landlord might take or be forced to take
against Tenant, or by reason of any waiver of or failure to enforce any of
the rights or remedies reserved to Landlord in the Lease, or otherwise, or by
reason of any extension of time or other forbearance granted to Tenant by
Landlord, or Landlord's compromise, settlement, release, discharge,
subordination or indulgence with respect to, or failure, neglect or omission
to collect or enforce, or to record, file, perfect, enforce or
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exercise any liens or rights with respect to any claims against Tenant,
Guarantor or any other person liable directly therefor;
(6) That, Guarantor hereby waives notice of any and all notices or
demands which may be given by Landlord to Tenant, whether or not required to
be given under the Lease and hereby waives any notice of acceptance of the
Guaranty by Landlord;
(7) Guarantor hereby warrants and represents that (i) Guarantor is
sufficiently knowledgeable and experienced in financial and business matters
to evaluate and understand the risks assumed in connection with the execution
of this Guaranty; (ii) Guarantor has had the opportunity to examine the
records, reports, financial statements, and other information relating to the
financial condition of Tenant; (iii) Guarantor has relied solely upon
investigations of Tenant's financial conditions conducted by Guarantor or
Guarantor's authorized representative to execute this Guaranty; and (iv)
Guarantor, or its authorized representatives, shall continue independently to
review, monitor and investigate the financial condition of Tenant while this
Guaranty is in effect, Guarantor specifically relieving Landlord of any duty,
obligation, requirement or responsibility of any nature whatsoever to advise
Guarantor of any change in Tenant's financial condition;
(8) If Landlord at any time is compelled to take action, by legal
proceedings or otherwise, to enforce or compel compliance with the terms of
the Guaranty, the Guarantor shall, in addition to any other rights or
remedies to which Landlord may be entitled hereunder or as a matter of law or
in equity, pay to Landlord all costs, including reasonable attorneys' fees,
incurred or expended by Landlord in connection therewith; and
IN WITNESS WHEREOF, Guarantor has executed this Guaranty, under seal, on
June 1, 1998.
AUSTINS STEAKS & SALOON, INC.
By /s/ illegible
-------------------------------
Its Secretary
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