LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease Agreement") is made and entered into this
__ day of March 2001, by and between OFT, LTD, a Missouri corporation with
offices at 0000 Xxxx Xxxxxxx 00, Xxxxxxx, Xxxxxxxx 00000 (hereinafter referred
to as "OFT" or the "Landlord) and ON STAGE ENTERTAINMENT, INC., a Nevada
corporation with offices at 0000 Xxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000
(hereinafter referred to as "On Stage" or the "Tenant").
RECITALS
WHEREAS, On Stage is an entertainment company and an official licensee of
the live theatrical rights to Xxxxxx'x Believe it or Not(R) (the "Show"); and
WHEREAS, OFT is the fee simple owner of the property formerly known as THE
OSMOND FAMILY THEATER located at 0000 Xxxx Xxxxxxx 00, Xxxxxxx, Xxxxxxxx, 00000
(the "Theater"); and
WHEREAS, On Stage and OFT have agreed upon certain terms and conditions
under which On Stage would lease OFT's Theater so as to publicly present its
Show and/or another of its entertainment productions at the Theater; and
WHEREAS, On Stage and OFT have agreed to reduce these terms and conditions
to writing and to enter into this Lease Agreement with the terms hereinafter set
forth.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS ALONG WITH THE
MUTUAL PROMISES AND UNDERSTANDINGS HEREIN CONTAINED AND FOR OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY
ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
WITNESSETH
1. DEMISED PREMISES. OFT does hereby lease and demise unto On Stage,
subject to the reservations and conditions set forth herein, and On Stage hereby
agrees to take and lease from OFT, for the Term hereinafter specified, the
Theater and the premises on which it is located and more particularly described
on Exhibit "A", a copy of which attached hereto and incorporated herein by this
reference, (hereinafter referred to as the "Demised Premises"). OFT hereby
grants to On Stage the exclusive right to use of all personal property,
equipment, light and sound equipment, concession equipment, ticketing system and
other leasehold improvements currently in and around the Theater, as is more
fully described on Exhibit "B" and incorporated herein by this reference
(collectively, the "Equipment"). On Stage hereby agrees not to remove any of the
Equipment from the Theater without the prior written consent of OFT.
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2. TERM. This Lease shall remain in full force and effect for a period of
thirty three (33) months, specifically commencing on April 1, 2001 and
continuing through and including December 31, 2003 (the "Term").
3. RENT. On Stage agrees to pay OFT the sum of FOUR HUNDRED THOUSAND
DOLLARS ($400,000.00) per year for the rental of the Demised Premises and the
use of the Equipment located therein, in exchange for the quiet use and
enjoyment of the Demised Premises during the Term of this Lease Agreement (the
"Rental Amount"). The Rental Amount shall be paid in monthly installments of
THIRTY THREE THOUSAND THREE HUNDRED THIRTY THREE and 33/100 DOLLARS
($33,333,333.33), which On Stage shall cause to be received by OFT by no later
than the first (1st) day of each calendar month throughout the Term of the Lease
Agreement. On Stage hereby agrees to pay OFT a one-time flat fee of TWENTY
THOUSAND DOLLARS ($20,000) for the early use of the Demised Premises during
March of 2001. All rent due hereunder is to be paid in lawful money of the
United States of America, which shall be legal tender at the time of payment.
Any and all rent payments made after the tenth (10th) day of any given month
shall be subject to a late payment penalty of five percent (5%), which will be
in addition to any other rights of OFT.
4. TELEPHONE LINES. On Stage hereby recognizes the fact that OFT has an
interest in maintaining its current telephone lines and numbers and agrees to
assist OFT with keeping and maintaining said numbers, which specifically are as
follows: (000) 000-0000; (000) 000-0000; (000) 000-0000; and (000) 000-0000.
5. TAXES. On Stage shall be responsible for any and all real estate taxes,
personal property, asset taxes, admission taxes, sales taxes, resale taxes and
all other taxes related to the Theater and the operation of On Stage's business
which are incurred during the Term of this Lease Agreement. On Stage agrees that
in the event any taxes are not paid in a timely manner, that OFT shall have the
right to pay the unpaid taxes directly, for which On Stage shall promptly
reimburse OFT for, together with costs, penalties (if any) and interest. In the
event any of the above-mentioned tax bills are sent directly to OFT, OFT hereby
agrees to promptly forward the same on to On Stage and On Stage hereby agrees to
satisfy the same on or before the respective due dates thereof. OFT shall be
responsible for any and all taxes levied against the Theater and/or its
operations, which occur either before or after the Term of this Agreement and
OFT agrees to pro-rate any tax liability accordingly. More specifically, OFT
shall pro-rate each parties tax liability for 2001 and estimate the taxes which
may be due during the 2003.
6. USE. On Stage shall use the Theater for the presentation of a live
theatrical version of Xxxxxx'x Believe it or Not(R). However, in the unlikely
event the Ripley's show does not prove to be financially successful, in On
Stage's sole discretion, On Stage hereby reserves the right to change the show
at the Theater for the remaining portion of the Term of the Lease Agreement. On
Stage shall maintain creative control of the Show including the exclusive right
to modify and/or alter any and all aspects of the same at its sole discretion,
and shall retain all rights to the Show. On Stage warrants that the Show will be
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in the nature of a live theatrical family entertainment show which shall involve
no offensive language, gestures or unreasonably offensive: (i) language; (ii)
gestures; or (iii) the exposure of body parts not suitable for children under
the age of ten to view. On Stage shall not utilize the Osmond's name or the
Osmond Family Theater name on any signage and/or billboards in or around the
Theater, without the prior written consent of OFT.
7. QUIET ENJOYMENT. On Stage, upon paying the Rental Amount and performing
all of the other terms of this Lease Agreement, shall quietly have and enjoy the
Theater and use of the Equipment throughout the Term of this Lease Agreement,
without hindrance or interference by OFT or its guests, licensees, invitees
and/or prior Lessee's.
8. REPAIR, MAINTENANCE AND ASSESSMENT. OFT represents and warrants that the
Theater and all essential equipment in the Theater including, but not limited to
the Theater's light system, sound system, curtains, riggings, staging, seating,
concession and gift areas, fire safety systems and the like are in good working
order and are at present fully operable and serviceable. OFT further represents
and warrants that to the best of its knowledge, there are no latent defects with
the Theater, the Demised Premises, the building or its equipment which would
materially impair On Stage's ability to open and operate its theatrical
production(s
9. PERSONAL PROPERTY. On Stage may supply and install its personal property
in and around the Theater, including but not limited to; sound equipment,
lighting equipment, furniture, sets, props, curtains, etc. ("On Stage Personal
Property"). OFT hereby agrees that such On Stage Personal Property will at all
times remain the sole property of On Stage which On Stage shall have the right
to remove, without obstruction, upon the termination of this Lease Agreement and
any extensions hereunder. However, it should be noted that On Stage shall repair
any damage done to the Theater as a result of the installation and/or removal of
the On Stage Personal Property upon the termination of this Lease Agreement.
10. CONDEMNATION/DESTRUCTION. If the whole of the Theater, or such portion
thereof as will make the Theater unsuitable for the purposes herein leased, are
taken by condemnation or eminent domain, this Lease Agreement shall expire on
the date when the Theater shall be so taken, and the Monthly Rental shall be
apportioned as of that date. If the whole or a portion of the Theater are
damaged or destroyed by fire or other casualty, and the same cannot reasonably
be repaired within one hundred twenty (120) days following the date thereof,
either On Stage or OFT can terminate this Lease Agreement by written notice to
the other party. If this Lease Agreement is not so terminated, the Monthly
Rental payable by On Stage shall be proportionately abated for that portion of
the Theater that is rendered untenable as a result of the fire or other casualty
for so long as the same shall remain untenable.
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11. SURRENDER. Upon the termination of this Lease Agreement (whether by the
natural expiration of time or otherwise) On Stage shall immediately surrender
the Theater in as good condition as it was in at the beginning of this Lease
Agreement, reasonable use and wear and damages excepted. If there is a question
as to whether On Stage has unlawfully terminated the Lease Agreement, OFT agrees
to use its good faith best efforts to relet the Theater in an effort to mitigate
any damages OFT may sustain as a result of On Stage's alleged breach.
12. MAINTENANCE, ALTERATIONS AND IMPROVEMENTS. On Stage shall, at its own
expense, keep and maintain in good repair and condition the interior of the
Theater, including but not limited to all glass and doors, the sound system,
lighting systems, stage fixtures, electrical service and plumbing inside the
Theater. On Stage further covenants and agrees that if On Stage makes any
material repairs or alterations to the Theater, that it shall first obtain the
written consent of OFT, which OFT agrees not to unreasonably withhold, and that
On Stage will pay for the same in full and fully protect and indemnify OFT from
any liens or encumbrances of any kind or nature whatsoever on account of such
work. OFT has requested that On Stage cause the OFT marquee sign to be removed
from the existing structure(s) at On Stage's own expense. On Stage hereby agrees
to remove said sign at its own expense contingent upon the understanding that
OFT will not hold On Stage responsible for any damage done to the sign during
said removal. On Stage shall work closely with the City of Branson to ensure the
removal of the OFT marquee and replacement of On Stage's sign is done in such a
fashion so as to preserve the sign ordinance grandfather clause the Theater
currently falls under with respect to the placement of the marquee as it
currently stands. OFT shall cause the sign to be removed at its own cost and
expense within seventy two (72) hours of being notified by On Stage that the
sign has been taken down. The above notwithstanding, On Stage may remove upon
termination all signage installed by On Stage upon termination of this Lease
Agreement, provided On Stage works with OFT to once again ensure that On Stage's
removal of its marquee does not jeopardize the grandfather clause which allows
the current marquee to lawfully sit as it currently stands.
OFT shall, at all times throughout the Term of this Lease Agreement,
maintain and repair, or cause to be maintained and repaired, as would a prudent
owner of a reasonably similar Theater, the structure of the Theater, including,
without limitation, the foundations, parking lot, exterior wall assemblies
including weather walls, sub-floor, roof, bearing walls, and structural columns
and beams of the Theater, electrical and plumbing systems located outside of the
Theater but which serve the Theater and the HVAC systems and equipment that
serve the Theater. If OFT refuses or neglects to carry out any maintenance,
repairs and replacements properly as required pursuant to this Lease Agreement
to the reasonable satisfaction of On Stage, On Stage may, but shall not be
obligated to, perform any such maintenance, repairs and replacements without
being liable for any loss or damage that may result to OFT's fixtures or other
property after first procuring three (3) independent bids to fix any such repair
to be made on OFT's behalf. Upon completion thereof, On Stage shall have the
affirmative right set off the average amount of said bids, plus a sum equal to
fifteen percent (15%) thereof representing On Stage's overhead for coordinating
and overseeing said repairs, directly against any and all future Monthly Rental
payments due to OFT hereunder. Notwithstanding the above, On Stage hereby agrees
to promptly reimburse OFT the first Twenty Thousand Dollars ($20,000) per year
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toward any mutually agreed upon repairs required of OFT pursuant to the terms of
this Paragraph. It should be noted that On Stage's annual $20,000 repair
commitment shall be cumulative. In the event the entire amount of these funds is
not utilized for any given year of the Term, any and all remaining funds may be
used toward the cost of required OFT repairs during subsequent years. In other
words, OFT shall not be obligated to make any repairs required under this
Agreement until On Stage has contributed an average of $20,000 in required OFT
repairs per year.
13. UTILITIES. On Stage shall be responsible for payment to the respective
utility companies for all electric, telephone, water, sewer, and other utility
service provided to the Theater. Any and all such utility services shall be
placed in On Stage's name.
14. REPRESENTATIONS AND WARRANTIES.
(a) On Stage.
(i) On Stage hereby represents and warrants to OFT that it has full
power and authority to execute and deliver this Lease Agreement. At the
time of the execution of this Lease Agreement, no consent, authorization or
approval of any third party is required to enable On Stage to enter into
and perform any of the respective obligations under this Lease Agreement,
and neither the execution or acceptance of the Theater nor the consummation
of the Lease Agreement will constitute a breach of any agreement to which
On Stage is a party or by which it is bound.
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(ii) If proceedings shall be commenced against On Stage in any Court
under the Bankruptcy Act or for the appointment of a trustee or receiver of
On Stage's property either before or after the commencement of the lease
Term, or if in the performance of any other covenant, agreement or
conditions herein contained on the part of On Stage for more than thirty
(30) days after written notice of such default by OFT, this Lease Agreement
(if OFT so elects), shall thereupon become null and void, and OFT shall
have the right to terminate this Lease Agreement, without being liable for
any prosecution therefore.
(b) OFT.
(i) OFT represents and warrants to On Stage that it has full power and
authority to execute and deliver this Lease Agreement and to deliver the
Theater for On Stage's quiet use and enjoyment. At the time of the
execution of this Lease Agreement, no consent, authorization or approval of
any third party is required to enable OFT to enter into and perform any of
the respective obligations under this Lease Agreement, and neither the
execution and delivery of the Theater nor the consummation of the
transaction will constitute a breach of any evidence of indebtedness or
agreement to which OFT is a party or by which it is bound.
(ii) If proceedings shall be commenced against OFT in any Court under
the Bankruptcy Act or for the appointment of a trustee or receiver of OFT's
property either before or after the commencement of the lease Term, or if
in the performance of any other covenant, agreement or conditions herein
contained on the part of OFT for more than thirty (30) days after written
notice of such default by OFT, this Lease Agreement (if On Stage so
elects), shall thereupon become null and void, and On Stage shall have the
right to terminate this Lease Agreement, without being liable for any
prosecution therefore.
(iii) OFT hereby warrants that that the Theater and Equipment are
fully operational and will provide On Stage with a current certificate of
occupancy from the respective governmental authorities as a condition
precedent to the consummation of this Lease Agreement.
15. INSURANCE. On Stage shall keep the Theater insured at its sole cost and
expense against claims for personal injury or property damage under a single
limit policy of not less than ONE MILLION DOLLARS ($1,000,000.00) per person.
Such policy shall be issued by a financially responsible insurer and shall name
OFT as an additional insured. On Stage shall provide OFT with a copy of said
policy and all replacements thereto. At all times hereunder, OFT shall keep the
Theater insured under a General Property, Casualty and Comprehensive Risk
insurance policy with fire, windstorm, theft, loss of business income and
associated coverage's with policy limits of not less than FOUR MILLION DOLLARS
($4,000,000.00) on the building, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) on
the contents and Equipment and TWO HUNDRED THOUSAND DOLLARS ($200,000.00) in
loss of business income. Such policy shall list OFT and On Stage as loss payees
as their interests may appear. OFT agrees to provide On Stage with evidence of
such insurance upon request therefore. On Stage hereby agrees to reimburse OFT
the premium for said building, contents and loss of business insurance on a
monthly basis, but reserves the right to procure a replacement policy, with
identical coverage from a similarly rated insurance company, in the event said
premium is excessive, in the sole discretion of On Stage.
16. COMPLIANCE WITH APPLICABLE LAWS. OFT hereby warrants that the Theater
is not in violation of any city, county, state or federal statute, ordinance,
law or rule which prohibits the Theater to be open for business to the public.
On Stage, at its sole expense, shall comply with all laws, orders and
regulations of any governmental authority and shall, at its own expense, obtain
all the normal required licenses or permits for the occupancy of the Theater and
the Theater. In addition to the above, On Stage warrants that it will procure
and solely remain responsible for any and all musical licensing, including, but
not limited to BMI, ASCAP and SESAC fees, if required for its Show.
17. ON STAGE'S RIGHTS AS TO BUSINESS SIGNS. On Stage may at its own risk
and expense erect or place in a lawful manner, signs concerning its business on
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the Demised Premises and the Theater, it being understood between the parties
hereto that the maintenance of such signs shall be kept in good state of repair
and On Stage shall repair any damage that may have been done to the Demised
Premises and/or Theater by the erection, existence, or removal of such signs.
Upon the expiration of this Lease Agreement or any renewal thereof, On Stage
shall remove the signs at its expense. All designs shall be in good taste and in
conformity with the regulations of all applicable Governmental Sign Codes.
18. ASSIGNMENT AND SUBLEASING. On Stage may sublet and/or assign this Lease
Agreement, provided it receives the prior written consent of OFT, which consent
shall not be unreasonably withheld. OFT hereby acknowledges its consent for On
Stage to sublet the Theater and Demised Premises to Xxxxxxx Enterprises, Inc.
and further acknowledges that On Stage shall be entitled to any and all
revenues/losses associated therewith, without OFT's involvement of any kind. On
Stage further agrees to assume all liability for the agreement between OFT and
Xxxxxxx Enterprises, Inc. dated January 19, 2001, as amended on March 7, 2001
and again on March 19, 2001 (hereinafter the agreement and the two amendments
thereto shall be collectively referred to as the "Agreement"), a true and
correct copy of each is attached hereto as Exhibit C.
19. INDEMNIFICATION. On Stage agrees to fully indemnify and hold OFT
harmless for any personal injury, death or property damage which might be
suffered by OFT, its agents, employees or any third parties legally coming in or
upon the Theater during the Term of this Lease Agreement or from On Stage's
operations in, on or around the Demised Premises. OFT shall defend, indemnify,
save and otherwise hold On Stage free, clear and harmless from and against any
claim, liability, loss, expense or damage to any person or property in or upon
the Theater, arising out of OFT's use or occupancy of said premises or any act
or neglect of OFT or its servants, employees or agents, or any change,
alteration or improvement made by OFT to the Theater.
20. LANDLORD'S RIGHT OF ENTRY. OFT and its representatives may, upon twenty
four (24) hours prior written notice to On Stage, enter the Theater, during
normal business hours, for the purpose of inspecting the Theater, performing any
work OFT is to perform hereunder or elect to undertake because of On Stage's
failure to do so, or for exhibiting the property to perspective purchasers,
lessees, or mortgagees, as long as this entry does not interfere with the Show
or with On Stage's patrons. On Stage shall have the right to provide an escort
during such entries hereunder. Any violation of this paragraph shall be deemed a
material breach hereof.
21. NOTICES. Any notice, consent, approval, request, demand or other
communication required or permitted hereunder must be in writing to be effective
and shall be deemed delivered and received when: (a) Personally delivered or if
delivered by facsimile, when electronic confirmation is actually received by the
party to whom notice was sent, or (b) If delivered by mail whether actually
received or not, at the close of business on the third (3rd) business day
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following a day when placed in the United States Mail, postage prepaid,
certified or registered mail, return receipt requested, at the addresses set
forth below (or to such other address as any party shall specify by written
notice so given), and shall be deemed to have been delivered as of the date so
personally delivered or mailed. The address of On Stage for purposes of this
paragraph is as follows: On Stage Entertainment, Inc., c/o: Xxxxxxx X. Xxxxxxx,
0000 X. Xxxxx, Xxxxx 0, Xxx Xxxxx, XX 00000, with a courtesy copy to: Silver
State Legal, c/o Xxxxxxxxxxx X. Xxxxx, Esq., 0000 Xxxx Xxxxx Xxxxx, Xxxxx 0, Xxx
Xxxxx, Xxxxxx 00000. Address for OFT shall be as follows: c/o Xxxxx Xxxxxx, 0000
Xxxx Xxxxxxx 00, Xxxxxxx, Xxxxxxxx 00000, with a courtesy copy to: Carnahan,
Evans, Xxxxxxxx & Xxxxx, P.C., c/o Xxxx X. Xxxxxxxx III, 0 Xxxxxxxxx Xxxxxx,
Xxxxx 000, 1949 East Sunshine, X.X. Xxx 00000, Xxxxxxxxxxx, Xxxxxxxx 00000-0000.
22. VENUE; CHOICE OF LAW. The validity, performance and construction of
this Lease Agreement shall be governed by, and be interpreted in accordance with
the laws of the State of Missouri. The County of Taney, Missouri, shall be the
only county which shall be a proper county with respect to any litigation
involving this Lease Agreement. On Stage and OFT waive their respective rights
to have any court proceeding or any other litigation filed or tried in any
county other than Taney County, Missouri.
23. BINDING AGREEMENT. The covenants, terms, conditions, provisions and
undertakings in this Lease Agreement shall extend to and be binding on the
heirs, executors, administrators, successors and assigns to the respective
parties hereto, as if they were in every case named and expressed and shall be
construed as covenants running with the land; and wherever reference is made to
either of the parties hereto, it shall be held to include and apply also to the
heirs, executors, administrators, successors and assigns of such party as if and
in each and every case so expressed.
24. ENTIRE AGREEMENT. This Lease Agreement contains the entire agreement
between the parties and shall not be modified in any manner except by an
instrument in writing executed by the parties. If any term or provision of this
Lease Agreement or the application of such term or provision to persons or
circumstances other than those to which is held invalid or unenforceable, shall
not be affected thereby and each term or provision of this Lease Agreement shall
be valid and be enforced to the fullest extent permitted by law.
25. CONFIDENTIALITY. OFT agrees to keep confidential, except as On Stage
may otherwise consent to in writing, and not to disclose, or make use of except
for the benefit of On Stage, at any time either during or subsequent to the Term
of this Lease Agreement, any information about the terms and/or conditions of On
Stage's license with Xxxxxx'x Believe it or Not. OFT further agrees not to
deliver, reproduce or in any way allow any such confidential information or any
documentation relating thereto, to be delivered or used by any third parties,
including, but not limited to video or audio taping of any aspect of the Show,
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without specific direction or consent in writing of On Stage. OFT may disclose
this Lease Agreement with its advisors, provided OFT ensures each advisor agrees
to keep this Lease Agreement confidential.
26. NON-CIRCUMVENTION. Provided that On Stage is not in any material breach
of any of the terms hereof, or in the event that On Stage is in breach yet fails
to cure said breach within thirty (30) days of notice duly given, OFT agrees,
that during the continuance of this Lease Agreement and for a period of five (5)
years thereafter, OFT, along with its stockholders, directors, officers, agents
and/or employees will not, on behalf of OFT or on behalf of any other person,
company, corporation, partnership, or other entity or enterprise, directly or
indirectly, as an employee, proprietor, stockholder, partner, consultant or
otherwise, enter into any agreement, whether directly or indirectly, with
Xxxxxx'x Believe it or Not, Wonderworks, or any other entity that showcases the
oddities of human behavior through live entertainment. This paragraph shall
remain in full force and effect for a period of five (5) years beyond the
termination of this Lease Agreement.
27. VIOLATION OF COVENANTS. If any of the covenants or agreements contained
in Paragraphs 25 and/or 26 hereof are violated, OFT agrees and acknowledges that
such violation or threatened violation will cause irreparable injury to On Stage
and its Show(s) and that the remedy at law for any such violation or threatened
violation would be inadequate, and that On Stage will be entitled, in addition
to any other remedies, to injunctive relief without the necessity of proving
actual damages. OFT agrees that the provisions of this Paragraph shall survive
the expiration or termination of this Lease Agreement or any part thereof,
without regard to the reason therefore. On Stage would be entitled to an
injunction to be issued by any court of competent jurisdiction, restraining OFT
from committing or continuing any such violation of this Lease Agreement.
28. REMEDIES. It is agreed and stipulated that in case On Stage fails to
promptly make the Monthly Rental payments and/or keep any of the covenants,
agreements, terms and conditions of this Lease Agreement, and On Stage fails to
cure said material breach within thirty (30) days after receipt of written
notice by OFT informing On Stage of said material breach and the nature thereof,
OFT shall have the right to terminate this Lease Agreement and to re-enter and
take possession of the Theater and hold, enjoy and re-rent the same without such
re-entry working a forfeiture of the rents. In addition to any other remedies
OFT may have at law or in equity or under this Lease Agreement, On Stage shall
pay upon demand all OFT's costs, expenses, consequential and liquidated damages,
attorney's fees, etc. in connection with any and all disputes arising out of
this Lease Agreement or because of any breach of the terms of this Lease
Agreement by On Stage. Any other provision of this Lease Agreement to the
contrary notwithstanding, neither On Stage nor OFT shall be in default of its
respective obligations hereunder until after written notice of such default
shall be given to the defaulting party and such party fails to remedy the same
within ten (10) days of the receipt of such notice in the case of non-monetary
default or not to exceed thirty (30) days of the receipt of such notice in the
case of a monetary default.
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29. COMPLIANCE WITH ENVIRONMENTAL LAWS. On Stage shall not generate,
manufacture, store, release, discharge or dispose of on, in or under the Demised
Premises, or transport to of from the Demised Premises any "Hazardous
Materials," or allow any other person or entity to do so. As used in this Lease
Agreement, "Hazardous Materials" shall mean: (i) "hazardous substances" or
"toxic substances" as those terms are defined by the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.ss.9601, et. seq.
or the Hazardous Materials Transportation Act, 49 U.S.C.ss.1801, all as amended
and amended after this date; (ii) "hazardous wastes", as that term is defined by
the Resource Conservation and Recovery Act ("RCRA"), 42 X.X.X.xx. 6901, et.
seq., as amended and amended after this date; (iii) any pollutant or contaminant
or hazardous, dangerous or toxic chemicals, materials or substances within the
meaning of any other applicable federal, state or local law, regulation,
ordinance or requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste substance or material, all as amended or
amended after this date; (iv) crude oil or any fraction thereof which is liquid
at standard conditions of temperature and pressure (60 degrees Fahrenheit and
14.7 pounds per square inch absolute); (v) any radioactive material, including
any source, special nuclear or by-product material as defined at 42 X.X.X.xx.
2011, et. seq., as amended and amended after this date; (vi) asbestos in any
form or condition; and (vii) polychlorinated biphenyls (PCBS) or substances or
compounds containing PCBS.
On Stage shall indemnify, defend (with counsel reasonably acceptable to OFT
and at On Stage's sole cost) and hold OFT and OFT's affiliates, shareholders,
directors, officers, employees and agents free and harmless from and against all
losses, liabilities, obligations, penalties, claims, litigation, demands,
defenses, costs, judgments, suits, proceedings, damages (including consequential
damages), disbursements or expenses of any kind (including, without limitation,
attorneys' and experts' fees and expenses, and fees and expenses incurred in
investigating, defending or prosecuting any litigation, claim or proceeding)
that may at any time be imposed upon, incurred by, asserted or awarded against
OFT or any of them in connection with or arising from or out of a violation of
On Stage's covenants of this Paragraph 29. It is specifically understood and
agreed to by On Stage that the indemnity contained in this paragraph shall
survive the expiration or earlier termination of this Lease Agreement.
30. MODIFICATION. No change or modification of this Lease Agreement shall
be valid unless the same is in writing and signed by all parties hereto.
31. BINDING EFFECT. The Lease Agreement shall be binding upon the heirs,
executors, administrators, and assigns of OFT and any successors in interest of
On Stage.
32. CAPTIONS. The captions contained herein are not a part of this Lease
Agreement. They are only for the convenience of the parties and do not in any
way modify, amplify or give full notice of any of the terms, covenants or
conditions of this Lease Agreement.
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33. COUNTERPARTS. This Lease Agreement may be executed in any number of
counterparts and any facsimile signatures hereon shall be deemed original for
all purposes.
34. TIME IS OF THE ESSENCE. Time is of the essence in this Lease Agreement.
35. ATTORNEYS' FEES. In the event of any litigation involving this
Agreement between the parties hereto, the prevailing party shall be entitled to
an award of its reasonable court costs and attorneys' fees at all trial and
appellate levels from the non-prevailing party.
36. RELATIONSHIP OF PARTIES. It is understood between the parties that On
Stage and OFT are performing hereunder as independent and sovereign parties and
that no other relationship besides a conventional Landlord and Tenant
relationship including, but not limited to, joint venture, employer-employee or
partnership, exists between them and the same are expressly disavowed and each
party hereto is an independent entity separate and distinct from the other. In
addition, both parties agree to comply with all applicable provisions of the
Internal Revenue Code and any other applicable laws, rules and regulations
relative to their respective performances hereunder. Neither party shall be
liable to the other for paying withholding taxes or the payment of any other
taxes imposed by any taxing authority. 37. SEPARABILITY. In the event that any
term or condition or provision in any paragraph of this Lease Agreement is held
by a court of competent jurisdiction from which there is no appeal to be invalid
or illegal or contrary to public policy, this Lease Agreement will be construed
as though that provision or term or condition did not appear therein and the
remaining provisions of this Lease Agreement will continue to full force and
effect.
38. CONSTRUCTION. For purposes of this Lease Agreement, the language of the
contract shall be deemed to be the language of both parties and neither party
shall be construed as the drafter.
39. SUBORDINATION; ATTORNMENT. OFT hereby warrants that this Lease
Agreement and On Stage's rights under the same are and shall remain superior to
the operation and effect of the lien of any mortgage, Deed of Trust or any lien
resulting from any other method of financing or refinancing, entered into prior
to or subsequent to the time that this Lease Agreement is executed. If,
subsequent to the execution of this Lease Agreement, any person shall succeed to
all or any part of OFT's interest in the Theater, whether by purchase,
foreclosure, deed in lieu of foreclosure, power of sale or otherwise, the
successor in interest shall take the Theater subject to the terms of this Lease
Agreement and OFT shall remain liable for all responsibilities under this Lease
Agreement, until such time as the successor in interest expressly agrees to
assume OFT's responsibilities under this Lease Agreement, in writing, and has a
net worth of at least $5,000,000.
40. ESTOPPEL CERTIFICATE; TENANT'S STATEMENT. Within ten (10) days after
written request, On Stage shall at any time and from time to time, upon request
in writing by OFT, execute, acknowledge and deliver to OFT, OFT's actual or
11
proposed mortgagee, ground lessee, master lessor, successor lessee, purchaser,
or other party, as OFT may from time to time direct, a statement in writing
and/or certificate in recordable form (a) certifying that this Lease Agreement
is unmodified and in full force and effect (or, if modified, stating the nature
of such modification and certifying that this Lease Agreement as so modified is
in full force and effect), and the date to which the rental and other charges
are paid in advance, if any, (b) acknowledging that there are not, to On Stage's
knowledge, any uncured defaults on the part of any party hereunder, or
specifying such defaults if any are claimed, (c) setting forth the date of
commencement of rents and expiration of the Term, and (d) any other matters
which OFT, such mortgagee, lessee, lessor, purchaser or other party may require.
41. GENERATOR. OFT hereby warrants that the generator located on the
Demised Premises is in good order and repair (the "Generator"). During the Term
of this Agreement, On Stage shall be responsible for maintaining the Generator
at its sole cost and expense. In consideration therefore, OFT shall assist On
Stage with procuring an agreement(s) with White River Valley Electric ("White
River") to sell electricity created by the Generator back to White River on
similar terms and conditions which OFT currently has in its agreement with White
River. In the unlikely event On Stage is unsuccessful with securing such a new
contract with White River, OFT hereby agrees to assign all of its rights, title
and interest to the income stream earned through its current contracts with
White River to On Stage for the Term of this Agreement. 42. MECHANICS LIENS. No
work performed by On Stage pursuant to this Lease Agreement, whether in the
nature of construction, alteration or repair, shall be deemed to be for the
immediate use and benefit of OFT as contained within this Lease Agreement so
that no mechanics liens, or other liens, shall be allowed against the estate of
OFT by reason of any consent given by OFT to On Stage to improve the Theater.
Where applicable, all work, labor, services, material and supplies performed or
furnished by On Stage shall be performed or furnished under no lien contracts.
On Stage shall promptly pay all persons furnishing labor or materials with
respect to any work performed by On Stage or its contractor(s) on or about the
Theater. In the event any mechanics lien shall at any time be filed against the
Theater or the real estate comprising a part of the Demised Premises by reason
of work, labor, services or material performed or furnished, On Stage shall
forthwith cause the same to be discharged to the satisfaction of OFT. If On
Stage shall fail to cause such lien forthwith to be discharged, OFT may, but
shall not be obligated to, discharge the same by paying the amount claimed to be
due and the amount so paid by OFT, including reasonable attorneys' fees incurred
by OFT in defending such lien, shall be due and payable by On Stage promptly
upon OFT's demand for payment thereof.
43. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement, or the breach and/or interpretation thereof, shall be settled by
arbitration administered by the American Arbitration Association under its
Commercial Arbitration Rules. Any judgment on the award rendered by the
arbitrator shall be binding and may therefore be entered in any court of
competent jurisdiction. Any arbitration proceeding brought forth pursuant to
this Paragraph shall be held in Branson, Missouri.
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IN WITNESS WHEREOF, the parties have executed this Lease Agreement the
day and year first above written.
NOTE: THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE
ENFORCED BY THE PARTIES.
ON STAGE ENTERTAINMENT, INC. OFT, LTD.
"On Stage" "OFT"
______________________________ __________________________
By: Xxxxxxx X. Xxxxxxx By: Xxxxx Xxxxxx
Its: Chief Executive Officer Its: President
EXHIBIT "A"
DESCRIPTION OF DEMISED PREMISES
All the real property and improvements situated in Section 2, Township 22 North,
Range 22 West, in Taney County, Missouri, described as follows: All that portion
of Xxxx 0 xx xxxx Xxxx 0 as shown on the official plat of Gateway Subdivision
and recorded in Plat Book 5 at Page 1, records of Taney County, Missouri, more
particularly described as follows: Beginning at the Northeast corner of said
Plot 1; thence South 524.00 feet along the East line of said Plot 1; thence
South 85 degrees 56'45"W, 335.33 feet parallel with the North line of said Plot
1; thence North 130.5. feet along the West line of said Plot 1; thence North 85
degrees 56'45"E, 35.33 feet; thence North 393.50 feet parallel with the West
line of said Plot 1; thence North 85 degrees 55'45"E, 300.00 feet to the point
of beginning. Except the following described tract: Begin at the Northeast
corner of Plot 1 of Gateway Subdivision, thence West along the North line
thereof a distance of 50.00 feet; thence South a distance of 524.00; thence East
a distance of 50.00 feet; thence North along the East line of said Plot 1 a
distance of 524.00 feet to the point of beginning.
EXHIBIT "B"
LIST OF PERSONAL PROPERTY, EQUIPMENT AND LEASEHOLD IMPROVEMENTS
CURRENTLY ON THE DEMISED PREMISES
EXHIBIT "C"
OFT, LTD and XXXXXXX ENTERPRISES, INC. AGREEMENT, AS AMENDED ON
MARCH 7, 2001 AND MARCH 19, 2001
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