CLOSING AGREEMENT
This Closing Agreement dated as of the 31st day of January, 2001 is by,
between and among Country Tonite Branson, LLC, a Nevada limited liability
company ("CTB"), On Stage Entertainment, Inc., a Nevada corporation ("On
Stage"), Bounceback Xxxxxxxxxxxx.xxx, Inc., a Minnesota corporation ("BBT"),
Country Tonite Enterprises, Inc., a Nevada corporation ("CTE") and CRC of
Branson, Inc., a Missouri corporation ("CRCB" and together with CTE, the
"Selling Entities" and individually a "Selling Entity").
BACKGROUND
Effective the close of business on January 31, 2001, the above named
Parties will close upon that certain Asset Purchase Agreement dated as of
January 25, 2001 among the Parties (the "Agreement").
The Parties are desirous of further memorializing various miscellaneous
issues that are material to the Transactions and the Transaction Documents.
The Parties agree that the use of terminology contained in this Closing
Agreement shall have the same meanings ascribed to such terminology in the
Agreement and other Transaction Documents.
The execution and delivery of this Closing Agreement is a condition
precedent to the Closing under the Agreement and other Transaction Documents
and, notwithstanding anything to the contrary in any of the same, to the extent
the items set forth below are in addition to or amend any provision of the
Agreement or other Transaction Documents, the provisions hereof shall pertain
and control and shall survive the Closing under the Agreement and the other
Transaction Documents.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the Parties hereto agree as follows:
1. As a condition to consenting to the Assignment of the Lease for the
Branson Country Tonite Theatre (the "Lease") from Ahab Properties, LLC
("Landlord"), Landlord required BBT and CRCB to guarantee the obligations of the
"Tenant" under the Lease through and including September 30, 2002. In connection
therewith, CTB agrees to pay or perform all obligations of "Tenant" under the
Lease as and when the same become due and, should CTB fail to pay or perform any
of such obligations, it will give prompt notice thereof to BBT in accordance
with Section 17 of the Agreement. In the event BBT or CRCB is required to pay or
perform any obligation of "Tenant" under the Lease, CTB shall promptly repay to
BBT or CRCB any amount paid by either of them to Landlord and any costs incurred
in connection therewith (including reasonable attorneys' fees) (all of the same
are hereinafter referred to as the "Repayment Obligations"). The Repayment
Obligations shall be secured by the Security Agreement and are referred to in
Paragraph 1 thereof. Any default under the Lease by CTB as "Tenant" shall
constitute a default under the $650,000 Secured Short Term Note, the $2,800,000
Secured Promissory Note and the Security Agreement.
2. As of the date hereof, CTE has filed with Network Solutions the
documentation necessary to transfer the domain name xxx.xxxxxxxxxxxxx.xxx to
CTE, but the same has not yet been effective. Promptly after the effectiveness
of such transfer, CTE will transfer such ownership to CTB. CTE agrees to
promptly and continuously pursue such transfers and execute and deliver such
instruments and documents as are necessary or appropriate in order to effect
such transfers.
3. Section 2.2 of the Agreement provides that accounts receivable are
"Excluded Assets" as defined therein. CTB agrees that the Country Tonite finance
department in Branson will continue to use efforts in accordance with past
practices to collect the receivables listed and described on Schedule A,
attached hereto and made a part hereof. CTB agrees that any payments received
from the companies listed on Schedule A shall be applied first to repay the
balance due on Schedule A. To the extent CTB receives any checks or drafts made
payable to CTE or CRCB, it will promptly deliver the same to BBT in kind. To the
extent any such checks or drafts are made payable to CTB, CTB shall endorse the
same to BBT and promptly deliver such endorsed items to BBT. To the extent CTB
receives an electronic transfer of funds or a cash or other payment with respect
to such balances, it shall promptly remit such funds, by electronic transfer, to
BBT.
4. CTE and On Stage agree that the Closing Statement, attached hereto and
made a part hereof, is correct. CTB agrees to transfer to BBT, by wire transfer,
the net amount of $30,001.56 on or before 2:00 Central Standard Time on February
5, 2001.
5. The parties hereto agree that the Agreement and other Transaction
Documents shall be held by Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx, LLP (the "Escrow
Agent") pending the payment in full of the $650,000.00 Secured Short Term Note.
In the event $150,000 due under the $650,000.00 Secured Short Term Note is not
paid in full on or before February 15, 2001 or the balance thereof is not paid
on or before March 15, 2001, or such later date if the same is extended in the
sole and absolute discretion of BBT, the Escrow Agent shall promptly return the
Agreement and all other Transaction Documents to BBT and, from and after such
date, all of the Purchased Assets and the Business shall revert to the ownership
of CRCB and CTE; provided, however, CTB shall be entitled to all income with
respect to the period February 1, 2001 to the date of such return and shall be
responsible for the payment of all expenses during such period with respect to
the Business. In the event of such return, the parties shall execute and deliver
such instruments and documents as may be necessary or appropriate in order to
effect the foregoing.
6. This Closing Agreement shall be governed by and construed in accordance
with the internal laws (and not the law of conflicts) of the State of Nevada.
7. This Closing Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns and
may not be changed or amended in any manner whatsoever except in writing signed
by the parties sought to be charged therewith.
8. This Closing Agreement may be executed in any number of copies and by
the different parties hereto on the same or separate counterparts each of which
shall be deemed to be one and the same original instrument.
IN WITNESS WHEREOF, the above-named parties have executed this Closing
Agreement as of the date and year first above-written.
COUNTRY TONITE BRANSON, LLC.
By: ______________________________
Name:
Title:
ON STAGE ENTERTAINMENT, INC.
By: ______________________________
Name: Xxxxxxx X. Xxxxxxx
Title:President and CEO
BOUNCE BACK XXXXXXXXXXXX.XXX, INC.
By: ______________________________
Name: Xxxx X. Xxxxxx
Title:CEO
COUNTRY TONITE ENTERPRISES, INC.
By: ______________________________
Name: Xxxx X. Xxxxxx
Title:Pres.
CRC OF BRANSON, INC.
By: ______________________________
Name: Xxxx X. Xxxxxx
Title:Pres.
