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 CLARENCE L. WERNER,
TRUSTEE
OF THE CLARENCE L. WERNER REVOCABLE
TRUST, hereinafter referred
to as "Landlord," and WERNER 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:
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1.
The
Premises. Landlord
agrees to lease the
following
------------
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
----
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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<PAGE>
due shall be subject to a four percent (4%) late fee.
4.
Construction.
------------
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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<PAGE>
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
--------------------------------
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
-----------------------
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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<PAGE>
a.
Tenant's Option. At
any time during the term of this
---------------
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
------------------
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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<PAGE>
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
-----------------------
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 cause
