EXHIBIT 10.5
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") made and entered into
effective as of the 21st day of May, 2002, as revised on the 8
day of February, 2007, by and between XXXXXXXX X. XXXXXX, TRUSTEE
OF THE XXXXXXXX X. XXXXXX REVOCABLE TRUST, hereinafter referred
to as "Landlord," and XXXXXX ENTERPRISES, INC., hereinafter
referred to as "Tenant."
RECITALS:
WHEREAS, Landlord owns, controls, and holds the legal right
to lease real property located west of Valley, Nebraska, on the
Platte River which he desires to lease; and
WHEREAS, the parties on or about August 1, 1994, entered
into a Lease Agreement granting Tenant a non-exclusive,
restricted right to erect and maintain a sporting clay and trap
range on the area; and
WHEREAS, on or about August 1, 1994, said Lease was amended
pursuant to a written Addendum providing for a twenty (20) year
lease term from August 1, 1994; and
WHEREAS, Tenant desires to obtain the use of a suitable
hunting lodge located on the premises; and
WHEREAS, Tenant is willing to construct a hunting lodge in a
form acceptable to Landlord according to the terms and conditions
set forth herein; and
WHEREAS, the parties desire to terminate the Lease Agreement
dated the 1st day of August, 1994, as amended on August 1, 1994,
and to incorporate the premises leased therein in this Lease; and
WHEREAS, the parties desire to retroactively clarify and
revise this Lease as set forth herein to delete certain
provisions relating to certain contiguous property owned by
Landlord.
NOW THEREFORE, in consideration of the covenants, rents and
agreements contained within this Lease, the parties agree as
follows:
1. The Premises. Landlord agrees to lease the following
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described real property to Tenant and Tenant agrees to lease the
real property from Landlord, according to the terms and
conditions of this Lease.
a. Sporting Clay and Trap Range Area. Landlord leases the
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real property for the purpose of constructing, maintaining
and using a hunting lodge (the "Lodge"), and a sporting clay
and trap range on an area, the boundaries of which have been
determined by Landlord and Tenant, hereinafter referred to
as the "Lodge Premises" upon the real property described in
Exhibit "A" hereto. Tenant shall have access to the Lodge
Premises for purposes of constructing, maintaining, and
using a Lodge and a sporting clay and trap range thereon;
however, the right to use the Lodge Premises for all other
purposes, including, but not limited to, farming, animal
husbandry, stocking and hunting of game birds, is reserved
by Landlord. Landlord also grants to Tenant the
non-exclusive right to travel on the road maintained by
Landlord across Landlord's contiguous property, the
approximate location of which is shown on Exhibit "B"
attached hereto, for purposes of ingress and egress from the
Lodge Premises.
b. Hunting Lodge. Tenant will construct the Lodge at the
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location outlined on the attached Exhibit "B" drawing. The
building shall be approximately 24,000 square feet of floor
space. The entire Lodge shall be for the exclusive use of
Tenant, its agents, servants, and invitees for any lawful
purpose including, but not limited to, conducting hunting,
shooting, and fishing activities for Tenant and its
invitees. Tenant will also, at its expense, remove the
existing lodge structure from the Lodge Premises.
The Lodge Premises include the caretaker's dwelling, the
kennel building, the existing metal storage building, all
appurtenances, easements and rights-of-way related to it.
2. Lease Term. The Term of this Lease shall be for a
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period of ten (10) years, unless sooner terminated under the
terms of this Lease, and shall commence on the 1st day of June,
2002, and extend for a period of ten (10) years thereafter.
3. Rent. Tenant shall pay the Landlord as Rent for the
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Lodge Premises an amount of One Dollar ($1.00) per year. In
addition thereto, Landlord shall, as rental, receive the non-
exclusive right to use the Lodge, the sporting clay and trap
range constructed and maintained by Tenant and all equipment
relating thereto for Landlord's personal use. Rent shall be
payable without demand on or upon the first day of each Lease
Year. Any payment not received by the 15th day of the month when
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due shall be subject to a four percent (4%) late fee.
4. Construction.
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Tenant shall, at its sole cost and expense, construct the
Lodge on the Lodge Premises at a location mutually agreed by the
parties in accordance with the plans and specifications prepared
by Tenant and approved by Landlord, Landlord's consent and
approval not to be unreasonably withheld; all the foregoing to be
done at Tenant's risk and cost except for Landlord's default or
negligence. Tenant agrees that it will not encumber by
conditional sales agreements, chattel mortgages or any other
security instrument, any work performed or materials installed by
Tenant, excluding Tenant's trade fixtures, without the prior
consent of Landlord. Tenant agrees, with respect to any
activities by Tenant within the Lodge prior to occupancy date,
that it will comply with all reasonable procedures and
regulations prescribed by Landlord. Landlord agrees that title
to the Lodge and to all improvement work performed on the Lodge
Premises and materials installed on the Lodge Premises by Tenant
shall remain the property of Tenant.
Tenant does and shall cause the contractor, all
subcontractors and all materialmen to waive and release any and
all liens, intention to file liens and rights of liens with
respect to the Lodge Premises now existing or that may hereafter
arise and, as a condition precedent to the commencement of work,
shall deliver to Landlord a duplicate original of the instrument
in writing whereby contractor, subcontractors, and materialmen so
waive such rights. Tenant shall, at its own cost and expense,
cause any liens filed against the Lodge Premises by Tenant's
contractor, subcontractor or materialmen, to be discharged of
record within twenty (20) days after notice to Tenant of the
filing thereof. If any mechanic's lien has been filed against
the Lodge Premises or building or tract of which the Lodge
Premises is part, within the statutory period for filing
mechanic's liens and remains of record after notice to Tenant,
and Tenant fails to comply, Landlord shall have the right to
discharge any such liens by payment or otherwise, and Tenant
shall reimburse Landlord therefor and for all reasonable costs
and expense incurred in connection therewith, including
reasonable attorney fees.
Commencing with the date Tenant performs any work on the
Lodge, Tenant shall be covered for public liability insurance in
the amounts set forth in Section 18 hereof, covering Landlord and
any designee of Landlord and workers' compensation insurance
affording applicable statutory coverage and containing statutory
limits, all such liability insurance policies to comply with the
requirements of Section 18 hereof. As permitted under Nebraska
Law, Tenant may self-insure the workers' compensation risk.
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Tenant agrees that it will, on request from Landlord,
comply with any and all reasonable requirements of Landlord or
any title company and the requirements of any mortgagee of the
Lodge Premises with respect to the work performed or materials
furnished by Tenant, or its agents, contractors and
subcontractors, on the Lodge Premises.
Any access or possession by Tenant prior to the
commencement date shall, except for the payment of Rent, as
hereinafter defined, be on and subject to all the other terms,
provisions, covenants and conditions of this Lease.
5. Acceptance and Alteration of Lodge Premises. Upon
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completion and acceptance of the Lodge, Tenant accepts the Lodge
Premises "as is" and has the right to make alterations thereto
when approved by the Landlord, which approval shall not be
unreasonably withheld. If, at the termination of the ten (10)
year Term of this Lease, or any renewal period, Tenant has not
exercised the option provided in Section 8 hereof, the Lodge and
all alterations, additions, fixtures, improvements and furniture,
whether temporary or permanent in character, shall become
Landlord's property, without compensation to Tenant. If the
Lease is terminated before the tenth (10th) year, for any reason
except for breach of the terms and conditions hereof by Tenant,
and Tenant does not elect to exercise its option provided by
Section 8 hereof, Landlord agrees to pay to Tenant the original
cost of the Lodge together with all improvements, fixtures,
machinery, furniture, and general furnishings to or on the Lodge
Premises by Tenant, less accumulated depreciation calculated on a
straight-line method over the Term of the Lease (ten [10] years).
6. Taxes and Special Assessments. Tenant will pay all
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real property taxes and special assessments levied against the
Lodge Premises during the Term of the Lease. Tenant shall pay or
reimburse Landlord for any personal property taxes, if any,
arising by virtue of the installation of the said equipment on
the Lodge Premises.
7. Maintenance and Repairs. Tenant will, at its sole cost
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and expense, keep the Lodge Premises clean, presentable and
provide all maintenance, repairs, and replacements, including but
not limited to structural repairs, as and when needed to preserve
the Lodge Premises in good working order and repair. Further,
Tenant will be responsible for major repairs and replacements to
the heating, ventilating, air conditioning, mechanical,
electrical, plumbing systems and the fixtures and appurtenances
to the Lodge Premises as and when needed to preserve them in good
working order and condition, reasonable wear and tear excepted.
Tenant will also provide all grounds and landscape upkeep, and
maintenance on the Lodge Premises.
8. Option.
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a. Tenant's Option. At any time during the term of this
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Lease or any renewal thereof, Tenant shall have the option
to purchase the Lodge Premises by giving written notice of
its intention to do so to Landlord. The option price shall
be the market price for the property without considering
the value of the Lodge, shooting fields' equipment, and/or
caretaker's home. If the parties are unable to agree as to
the market price, each party may appoint an appraiser who
shall in turn jointly appoint a third appraiser to
determine the market value. The average of all three
appraisals will be determinative of the market value. The
parties agree that the sum of One Hundred Thousand and
No/100 Dollars ($100,000.00) will be added to the value of
the Lodge Premises for the value of the existing lodge
structure which will be removed by Tenant pursuant to
Section 1.c. above.
Upon delivery of written notice to Landlord of Tenant's
intent to exercise the option, the parties will have thirty
(30) days to negotiate the fair market value of the
property. If the parties are unable to agree, each party
shall appoint an appraiser as described above, and all
appraisals shall be completed within sixty (60) days from
the date notice was given by Tenant. Closing shall occur
within thirty (30) days after the market value of the
property has been determined. Landlord agrees to convey the
property by warranty deed, free and clear of all easements,
mortgages, liens, restrictions, and covenants, except those
of record as of the date of this Lease, and any created by
Tenant. Tenant agrees to pay cash at closing.
In the event of the exercise of this option, the parties
agree to enter into a permanent easement for access over the
currently existing road or any mutually-agreeable road
determined by the parties after the date hereof. The
easement will provide that the cost of maintenance of said
road shall be borne by Tenant and will be considered part of
the sale price.
b. Landlord's Option. At any time during the term of this
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Lease or any renewal thereof, Landlord shall have the option
to demand that Tenant exercise the option to purchase the
Lodge Premises by giving written notice to do so to Tenant.
The option price shall be the market price for the property
without considering the value of the Lodge, Shooting Fields
equipment, and/or the caretaker's home. If the parties are
unable to agree as to the market price, each party may
appoint an appraiser who shall in turn jointly appoint a
third appraiser to determine the market value. The average
of all three appraisals will be determinative of the market
value. The parties agree that the sum of One Hundred
Thousand and No/100 Dollars ($100,000.00) will be added to
the value of the Lodge Premises for the value of the
existing lodge structure which will be removed by Tenant
pursuant to Section 1.c. above.
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Upon delivery of the written notice to Tenant of Landlord's
demand that Tenant exercise the option, the parties will
have thirty (30) days to negotiate the fair market value of
the property. If the parties are unable to agree, each
party shall appoint an appraiser as described above, and all
appraisals shall be completed within sixty (60) days from
the date notice was given by Landlord. The closing shall
occur within thirty (30) days after the market value of the
property has been determined. Landlord agrees to convey the
property by warranty deed, free and clear of all easements,
mortgages, liens, restrictions, and covenants except those
of record as of the date of this lease, and any created by
Tenant. Tenant agrees to pay cash at closing.
In the event of the exercise of this option, the parties
agree to enter into a permanent easement for access over the
currently existing road or any mutually-agreeable road
determined by the parties after the date hereof. The
easement will provide that the cost of maintenance of said
road shall be borne by Tenant and will be considered part of
the sale price.
Should Tenant not exercise the option as provided herein
upon demand by Landlord, the option granted Tenant by
Section 8.a hereof shall become null and void. The Right of
First Refusal granted Tenant pursuant to Section 21 hereof
shall remain in full force and effect during the balance of
the Lease term or any renewal thereof.
9. Assignment or Sublettinq. Tenant may not assign or
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sublet any or all of the Lodge Premises without the prior written
consent of Landlord. In the event Landlord sells or otherwise
transfers ownership of the Lodge Premises, this Lease shall
survive the transfer of ownership and Landlord shall take all
steps prior to sale to ensure that Tenant suffers no restriction
or loss of use of the Lodge Premises.
10. General Indemnification. Tenant shall indemnify and
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hold harmless Landlord from and against loss, damage and expense
(including reasonable attorneys' fees and legal expenses) for
bodily injury (including death) to persons and damage to property
proximately caused by the negligent acts or omissions of Tenant
or Tenant's intentionally wrongful actions and arising from
Tenant's performance under this Lease, except to the extent that
any such loss or damage or expense is caused by or arises from
the negligence or intentionally wrongful acts or omissions of
Landlord or Landlord's invitees.
Landlord shall indemnify and hold harmless Tenant from and
against loss, damage and expense (including reasonable attorneys'
fees and legal expenses) for bodily injury (including death) to
persons and damage to property proximately caused by the
negligent acts or omissions of the Landlord or the Landlord's
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intentionally wrongful actions and arising from Landlord's
performance under this Lease, except to the extent that any such
loss or damage or expense is caused by or arises from the
negligence or intentionally wrongful acts or omissions of Tenant
or Tenant's invitees.
11. Quiet Enjoyment. Landlord covenants and agrees with
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Tenant that so long as Tenant pays the rent and is not in default
of its obligations under this Lease, Tenant may peaceably and
quietly enjoy the Lodge Premises subject to the terms and
conditions of this Lease. Landlord further covenants that
Tenant's possession and use of the Lodge Premises will not be
disturbed by anyone claiming by, through, or under Landlord.
12. Environmental Representations and Warranties.
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Landlord warrants to Tenant that the Lodge Premises are free from
the presence of hazardous materials and that the handling, use,
generation, treatment, storage, disposal or release of hazardous
materials has not occurred on the Lodge Premises. Landlord
further warrants that the Lodge Premises are in full compliance
with all environmental laws. Landlord further warrants that it
has not received notice of any pending or threatened action,
claim or proceeding under environmental laws or otherwise arising
out of the condition of the Lodge Premises. All warranties of
Landlord in this paragraph shall be "Environmental Warranties."
13. Environmental Indemnity. Landlord agrees to
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indemnify, save and hold harmless Tenant, its present and future
affiliates and subsidiaries, if any, their respective employees,
representatives, officers, directors and agents from and against
any and all costs, losses, liabilities, damages, lawsuits,
expenses, interest, and penalties incurred in connection with,
arising out of, resulting from or incident to a breach of any
environmental warranty contained herein. The provisions of this
paragraph shall survive the Term of this Lease.
14. Surrender and Holding Over. Tenant shall, upon the
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expiration or termination of this Lease surrender to Landlord the
Lodge Premises, including all alterations, improvements and
additions on the Lodge Premises, other than as provided herein,
without any damage, injury or disturbance thereto, except normal
wear and tear. Tenant shall leave the Lodge Premises in a neat
and clean condition, free of debris.
15. Utilities. Tenant shall pay the appropriate suppliers
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for all water, gas, electricity, light, heat, telephone, power,
cable, and other utilities and communication services used by
Tenant on the Lodge Premises during the Term of this Lease.
16. Damage or Destruction. In the event that the Lodge
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Premises are partially damaged by fire, explosion or other
casualty, Tenant shall commence repair, restoration or rebuilding
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thereof within sixty (60) days following such damage, or promptly
after issuance of all necessary building permits. If the Lodge
Premises are rendered wholly untenantable, then either party may
terminate this Lease or upon agreement of the parties the Lease
may continue with the rent being abated until the Lodge Premises
are again ready for Tenant's occupancy. If the Lodge Premises
are made wholly untenantable and the parties elect to continue
this Lease, then Landlord and Tenant shall agree at such time as
to the schedule for reconstruction and repair and Landlord shall
commence said repair, restoration and rebuilding thereof within
sixty (60) days after the occurrence causing such damage and
shall complete such repair, restoration and rebuilding with all
due diligence. For purposes of this Lease the Lodge Premises
shall be deemed untenantable when the fire department with
jurisdiction over the Lodge Premises determines that the Lodge
Premises are wholly untenantable or partially untenantable, as
the case may be.
17. Compliance with Laws. The parties agree to comply with
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all laws, ordinances, orders, rules, regulations, and other
governmental requirements relating to the use, condition or
occupancy of the Lodge Premises. The parties further agree that
in the event that at any time during the Term of this Lease the
Tenant's intended use of the Lodge Premises is in conflict with
any law, ordinance, order, rule, regulation or other governmental
requirement (including without limitation zoning ordinances),
either party shall have the option of terminating this Lease upon
providing the other party with at least thirty (30) days prior
written notice.
18. Insurance. At all times during the Term of this Lease,
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Tenant shall carry and maintain, at Tenant's expense, the
following insurance in the amounts specified below or such other
amounts as Landlord shall, from time to time, reasonably request,
with insurance companies and in form satisfactory to Landlord:
a. Public Liability and Property Damage Liability Insurance
with a combined single limit of not less than $5,000,000;
b. Fire and Extended Coverage Insurance covering all
structures and leasehold improvements and all of Tenant's
equipment, trade fixtures, appliances, furniture,
furnishings, and personal property from time to time in or
upon the Lodge Premises, in an amount of not less than full
replacement cost without deduction for depreciation,
providing protection against all perils included within the
classification of fire, extended coverage, vandalism,
malicious mischief, special extended peril (all risk), flood
and sprinkler leakage. All policy proceeds will be used for
the repair or replacement of the property damaged or
destroyed;
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c. Workers' Compensation Insurance insuring against and
satisfying Tenant's obligations and liabilities under the
Workers' Compensation laws of the State of Nebraska. Tenant
may self-insure its Workers' Compensation liability to the
extent allowed by Nebraska law.
19. Alterations and Improvements. After completion of the
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construction as described in Section 4, Tenant will not make any
alterations, additions, or improvements to the Lodge Premises
without the prior written consent of Landlord. Landlord will not
unreasonably withhold its consent to minor, non-structural
alterations and improvements, provided that all such improvements
and alterations shall be at the sole expense of Tenant and at no
expense to Landlord. Tenant shall promptly pay all costs and
expenses of any alteration, addition or improvement. Tenant
shall procure and pay for all permits and licenses required in
connection with any alteration, addition or improvement. Any such
improvements shall become the property of the Landlord upon
termination of this Lease either due to early termination as
allowed under this Agreement or upon the termination date of this
Lease, reasonable wear and tear excepted.
Tenant may, without Landlord's consent and at Tenant's
expense, install, assemble or place upon the Lodge Premises any
items of machinery, equipment or furniture used or useful in
Tenant's use of the Lodge Premises. Such machinery, equipment or
furniture shall be and remain the property of Tenant. Tenant may
remove the machinery, equipment, or furniture from the Lodge
Premises at any time, provided that Tenant shall be required to
repair any damage to the Lodge Premises resulting from such
removal; however, at the termination of the Lease, all such
machinery, equipment or furniture then in existence shall become
the property of Landlord.
20. Term - Option to Extend. So long as Tenant is not in
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default under this Lease, either at the time of exercise or at
the time the extended Term commences, Tenant will have the option
to extend the initial ten (10) year Term of this Lease for two
additional periods of five (5) years (the "Option Periods") on
the same terms, covenants, and conditions of this Lease. Tenant
will exercise its option by giving Landlord written notice
("Option Notice") at least one hundred eighty (180) days, but not
more than three hundred sixty (360) days prior to the expiration
of the initial Term or the first Option Period.
21. Right of First Refusal.
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x. Xxxxx. Landlord grants Tenant a right of first refusal to
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purchase the Lodge Premises pursuant to this section.
b. Applicable Transactions. If Landlord receives an offer to
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sell the Lodge Premises, or any part thereof, and it intends
to accept the offer, or if Landlord decides to make an offer
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to sell the Lodge Premises, or any part thereof, Landlord
will give a written copy of the offer to Tenant. Tenant will
have the right to accept said offer by written notice to
Landlord given within fifteen (15) days after Tenant's
receipt of the offer, or, in the alternative, to exercise
the option granted Tenant in Section 8 hereof by giving
notice as required therein. If Tenant accepts the offer,
Tenant will be bound to purchase the Lodge Premises strictly
in accordance with the terms of the offer. So long as
Landlord's rights are not affected, Tenant has the right to
bid at any foreclosure sale of the Lodge Premises.
c. Excluded Transactions. Tenant does not have the right of
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first refusal to purchase the Lodge Premises if the sale of
the Lodge Premises is to a related entity (as that term is
defined in this paragraph). The term "related entity" means
any corporation, LLC, or Partnership eighty percent (80%) or
more of whose voting stock or control is owned by Landlord.
d. Conditions. Tenant does not have the right of first
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refusal to purchase the Lodge Premises if, at the time
Landlord receives the offer or decides to make the offer,
(i) Tenant is in default under this Lease, or (ii) an event
has occurred that would be a default under this Lease after
either notice or the passage of time, or (iii) tenant has
assigned all or part of this lease or has sublet all or part
of the Lodge Premises.
e. No Assignment. The rights granted to Tenant in this
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section are personal and may not be assigned by Tenant in
connection with an assignment of this lease or otherwise,
and Tenant's rights in this paragraph may not be exercised
by anyone other than Tenant. Any attempted assignment of
Tenant's rights in this paragraph will be of no effect, and
will terminate these rights as of the date of the purported
assignment.
f. Apportionment of Rent. If Tenant purchases the Lodge
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Premises, prepaid rent will be credited against the purchase
price.
g. Time of the Essence. Time is of the essence of each and
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every agreement and condition in this paragraph.
h. Sale Subject to Option. Any sale of this property by
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Landlord during the term of this Lease or any extension
thereof will be subject to the option granted to Tenant
pursuant to Section 8 hereof.
22. Right to Cure Default.
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a. If Tenant shall default with respect to any of Tenant's
obligations hereunder, if Landlord shall have given to
Tenant notice as required herein, and if after thirty (30)
days in which to cure said default Tenant shall not have
cured such default, Landlord may, but need not, attempt to
cure such default and the reasonable, actual net costs and
expenses incurred or paid by Landlord in so doing shall be
deemed to be additional rent hereunder and shall be payable
by Tenant to Landlord within ten (10) days after notice by
Landlord to Tenant making demand therefor.
b. If Landlord shall default with respect to any of
Landlord's obligations hereunder and if Tenant shall have
given to Landlord notice as required hereunder and thirty
(30) days in which to cure, and if after the expiration of
such period, if any, as may be provided herein for the
curing of such default Landlord shall not have cured such
default, Tenant may but need not attempt to cure such
default and the reasonable, actual net costs and expenses
incurred or paid by Tenant in so doing shall be payable by
Landlord to Tenant within ten (10) days after notice by
Tenant to Landlord making demand therefor or at Tenant's
option shall be deductible by Tenant from the rent payable
hereunder.
c. The rights and remedies afforded to Landlord and to
Tenant under paragraphs a and b, respectively, of this
Section 22, as well as those elsewhere provided herein or by
law shall be cumulative and shall not be deemed exclusive of
any other right or remedy provided herein or by law.
d. In the event that either Landlord or Tenant shall bring
any action or proceeding, whether at law or in equity or in
arbitration or otherwise, claiming a failure or default on
the part of the other to perform any covenant or agreement
contained in this Lease, the party who shall not prevail in
such action or proceeding shall pay to the party who shall
prevail therein the reasonable attorneys' fees and/or
expenses incurred by the prevailing party and the amount
thereof may be recovered, by counterclaim or otherwise, in
such action or proceeding.
e. Irrespective of any default by Landlord or Tenant, Tenant
may exercise the option granted by Section 8 hereof at any
time.
23. Condemnation.
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a. If the whole or any part of the Lodge Premises shall be
taken under the power of eminent domain, this Lease shall
terminate as to the part so taken on the date Tenant is
required to yield possession thereof to the condemning
authority. Landlord shall make such repairs and alterations
as may be necessary in order to restore the part not taken
to useful condition and the rent and other charges shall be
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reduced proportionately as to the portion of the Lodge
Premises so taken. If the amount of the Lodge Premises so
taken substantially impairs the usefulness of the Lodge
Premises for the permitted uses, either party may terminate
this Lease on the date when Tenant is required to yield
possession.
b. All compensation awarded for the taking of the fee and
the leasehold shall belong to and be the property of
Landlord provided, however, that Landlord shall not be
entitled to any award made to Tenant for loss of business,
fair value of, and cost of removal of stock and fixtures and
unamortized value of Tenant's improvements in the Lodge
Premises. The term "eminent domain" shall include the
exercise of any similar governmental power and any purchase
or other acquisition in lieu of condemnation.
24. Notices. Any notice or demand from Landlord to Tenant
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or Tenant to Landlord shall be in writing and shall be mailed by
prepaid United States registered or certified mail or personal
delivery addressed to Tenant and Landlord as follows or to such
other address as Tenant or Landlord shall have last designated by
notice in writing to the other party:
Tenant: Xxxxxx Enterprises, Inc.
00000 Xxxxxxxx Xxxx
X.X. Xxx 00000
Xxxxx, XX 00000-0000
Landlord: Xxxxxxxx X. Xxxxxx, Trustee
of the Xxxxxxxx X. Xxxxxx Revocable Trust
00000 Xxxxxxxx Xxxx
X.X. Xxx 00000
Xxxxx, XX 00000-0000
25. Amendment. This Lease can be amended only by a written
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document signed by authorized representatives of the Landlord and
Tenant.
26. Severability. If any provision of this Lease is found
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by a court of competent jurisdiction to be illegal, invalid or
unenforceable, such provision shall be struck from the Lease and
the remainder of this Lease will not be affected.
27. Binding Effect. This Lease shall inure to the benefit
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of and will be binding upon the successors and permitted assigns
of the parties.
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28. Entire Agreement. This Lease contains the entire
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agreement between the Landlord and Tenant with respect to this
subject matter. Except for those which are specifically set
forth in this Lease, no representations, warranties or agreements
have been made by Landlord or Tenant to one another with respect
to this Lease.
29. Duties of Tenant. Tenant will obey all laws and
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ordinances controlling use and occupancy of the Lodge Premises,
for the purposes intended and will institute or promulgate such
regulations as are necessary to insure the safe operation of the
sporting clay and trap range, the hunting fields and the Lodge.
Tenant shall keep the Lodge Premises clean and provide all
required maintenance to keep the facility in good operating, safe
condition.
30. Governing Law. This Lease shall be governed and
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construed by and in accordance with the laws of the State of
Nebraska.
31. Recision of Lease Agreement. Upon commencement of the
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Term of this Lease as described in Section 2 above, the parties
agree that the Lease Agreement entered into the 1st day of August
1994, shall be rescinded and each party be released from it's
obligations to perform any of the terms and conditions thereof
and that the terms and conditions of the Lease shall replace and
supercede said Lease Agreement.
32. Farming. During the term of this Lease, Landlord will
-------
use his equipment to seed and maintain the hunting cover, milo
crops, and any other crops located on the Lodge Premises. Tenant
will pay for seed and fertilizer. Farming will be conducted in
such a manner as to maximize hunting cover for pheasants and
other game birds. The proceeds from any crops, if any, shall be
the property of Landlord.
IN WITNESS WHEREOF, the parties hereto have executed this
Lease Agreement as of the day and year first above written.
LANDLORD:
XXXXXXXX X. XXXXXX, TRUSTEE OF
THE XXXXXXXX X. XXXXXX
REVOCABLE TRUST
/s/ Xxxxxxxx X. Xxxxxx
___________________________________
Xxxxxxxx X. Xxxxxx, Trustee
-13-
TENANT:
XXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
___________________________________
Xxxxxx X. Xxxxxxxxx, Xx.
Executive Vice President
STATE OF NEBRASKA )
)ss.
COUNTY OF SARPY )
The foregoing Lease Agreement was acknowledged before me
this 8 day of February, 2007, by Xxxxxxxx X. Xxxxxx, Trustee of
the Xxxxxxxx X. Xxxxxx Revocable Trust, on behalf of the Trust.
[SEAL]
/s/ Xxxxxxxx X. Xxxxxx
______________________________
Notary Public
STATE OF NEBRASKA )
)ss.
COUNTY OF SARPY )
The foregoing Lease Agreement was acknowledged before me
this 8 day of February, 2007, by Xxxxxx X. Xxxxxxxxx, Xx., the
Executive Vice President of Xxxxxx Enterprises, Inc., on behalf
of the corporation.
[SEAL]
/s/ Xxxxxxxx X. Xxxxxx
____________________________________
Notary Public
DOCS/777240.3
-14-
EXHIBIT A
LODGE PREMISES
LEGAL DESCRIPTION - XXXX XXXX FARM
That part of Government Lots 5 and 6, in the SE 1/4 of Section
16, together with that part of Government Lot 1 in the NE 1/4
of Section 21, all in T 16 N, R 9 E, of the 6th P.M., Xxxxxxx
County, Nebraska, together with part of the Platte River lying
East of the centerline of the Platte River (the centerline of
the Platte River hereafter being the geographical centerline
of the main channel of the river as indicated on various maps
and as established by setting points midway between the high
banks of the main channel of the Platte River) and adjoining
afore described Government Lots, all being more particularly
described as follows: Commencing at the Southeast corner of
the NE 1/4 of Section 22, T 16 N, R 9 E, of the 6th P.M.,
Xxxxxxx County, Nebraska; thence S 88 degrees 12'21" W (an
assumed bearing) for 1,409.50 feet along the South line of the
NE 1/4 of said Section 22 to the West right-of-way line of the
Union Pacific Railroad; thence N 54 degrees 06'51" W for
846.17 feet along said West right-of-way line; thence
continuing along said West right-of-way line and along a
11,659.22 foot radius curve to the right (having a chord
bearing N 47 degrees 48'39" W and a chord distance of 2,560.20
feet) for an arc distance of 2,565.36 feet to the intersection
of said West right-of-way line with the centerline of a gravel
road, (said point of intersection also being from the
Northeast corner of the SE 1/4 of said Section 16, S 87
degrees 54'29" W for 835.10 feet along the North line of the
SE 1/4 of said Section 16 to the West right-of-way line of the
Union Pacific Railroad; thence S 37 degrees 44'25" E for
2,958.81 feet along said West right-of-way line; thence
continuing Southeasterly along said West right-of-way line and
along an 11,659.22 foot radius curve to the left (having a
chord bearing S 39 degrees 37'26" E and a chord distance of
766.44 feet) for and arc distance of 766.58 feet to aforesaid
intersection of said West right-of-way line with the
centerline of a gravel road); thence N 51 degrees 38'54" W for
440.59 feet along said road centerline; thence continuing
Northwesterly along said road centerline and along a 3,486.69
foot radius curve to the left (having a chord bearing N
57 degrees 59'59" W and a chord distance of 771.42 feet) for
an arc distance of 773.02 feet; thence continuing along said
road centerline, N 64 degrees 21'04" W for 927.47 feet to the
True Point of Beginning; thence N 01 degrees 29'10" E for
227.72 feet; thence N 73 degrees 12'54" W for 1,189.07 feet;
thence S 64 degrees 21'46" W for 363.41 feet along a line
perpendicular to said centerline of the Platte River to said
centerline of the Platte River; thence S 25 degrees 38'14" E
for 48.47 feet along said centerline of the Platte River;
thence S 12 degrees 50'12" E for 1,180.99 feet along said
centerline of the Platte River; thence N 77 degrees 09'48" E
for 403.51 feet along a line perpendicular to the centerline
of the Platte River; thence S 71 degrees 21'34" E for 498.94
feet; thence N 47 degrees 17'43" E for 402.23 feet; thence N
01 degrees 29'10" E for 578.61 feet to the True Point of
Beginning.
EXHIBIT B
HUNTING LODGE
[MAP OF LODGE PREMISES AND FARM LAND APPEARS HERE]
