LEASE AGREEMENT
THIS LEASE AGREEMENT made as of this 22nd day of December, 1995, by
and between DARIEN LAKE THEME PARK AND CAMPING RESORT, INC., a New York
corporation having its principal office at 0000 Xxxxxxxxx Xxxx, Xxxxxx
Xxxxxx, Xxx Xxxx 00000 (hereinafter "Darien"), and THE METROPOLITAN
ENTERTAINMENT CO., INC., a New Jersey corporation having its principal
office at 0 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter
"Metropolitan").
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Metropolitan is a promoter and sponsor of live concerts and
entertainment events.
Darien is the owner and operator of Darien Lake Theme Park and Camping
Resort in the Town of Darien Center, New York (the "Theme Park"). The
Theme Park includes approximately 12 acres of improved land more
specifically described on Schedule A on which is located an outdoor
amphitheater known as the Darien Lake Performance Arts Center, which land,
including all improvements thereto and expansions thereof now existing or
hereafter made, is hereinafter referred to as the "Center."
Metropolitan desires to lease from Darien, and Darien desires to lease
to Metropolitan, the Center on the terms and conditions hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, and in further
consideration of the mutual covenants and agreements herein contained, the
parties hereto, intending to be legally bound, hereby covenant and agree as
follows:
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1. Lease of Center
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1.1 Subject to all of the terms and conditions hereof, Darien
hereby leases to Metropolitan the Center during each of the Seasons during
the Term hereof, and Metropolitan does hereby take and lease from Darien
the Center during such Seasons. Metropolitan agrees that, during such
Seasons, the Center shall be used and occupied by it exclusively for the
booking, promotion and production of Concerts, the performance by
Metropolitan of its obligation hereunder and for no other purpose. Any
other use of the Center by Metropolitan during the Term shall require the
prior written consent of Darien, which may be withheld in its sole
discretion. As used herein, the term "Concerts" shall mean live stage
musical concerts, comedy performances, Broadway shows and other family-
oriented musical shows and productions. Except as otherwise explicitly
provided herein, during each Season, Metropolitan shall book, promote and
produce no less than twenty Concerts featuring nationally-recognized
performers or shows (the "Minimum Concerts").
1.2 In the event that Darien receives at any time during the
Term any inquiry or proposal regarding production of a Concert at the
Center during any Season of the Term, Darien shall refer the party making
such inquiry or proposal to Metropolitan. Darien may approach persons or
entities representing performers or shows to ascertain their interest in
presenting a Concert at the Center during any such Season, provided that,
if any such person or entity shall indicate interest in any such Concert,
Darien shall refer such party to Metropolitan. Metropolitan shall promptly
notify Darien in writing as to any Concert referred to Metropolitan by
Darien pursuant to this Section 1.2 that Metropolitan has determined not to
produce at the Center (a "Rejected Concert").
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Notwithstanding any provision of this Lease, Darien shall have the
right to enter and use the Center during each Season of the Term to produce
at its expense any such Rejected Concert in accordance with Section 4.2, it
being understood that Darien shall not contract with any third party to
produce any Rejected Concert on Darien's behalf. Darien shall also have
the right at its expense to produce or arrange the production of (i) magic
shows, wild west shows, musical reviews, fireworks, laser light shows and
other live shows and performances at the Theme Park of a type generally
consistent with the type of live shows and performances then staged at the
theme parks (the "Premier Parks") owned and operated by Premier Parks Inc.,
the parent company of Darien, or other theme parks comparable to the
Premier Parks, provided that such shows or productions do not include
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events that would constitute Concerts (as such term is defined in Section
1.1) featuring nationally-recognized performers who are then performing at
Comparable Facilities, outdoor stadiums or indoor arenas with attendance
capacities comparable to the Center and (ii) subject to the provisions of
Section 4.2, events at the Center that do not constitute Concerts (the
events listed in clauses (i) and (ii), collectively with all Rejected
Concerts produced by Darien, being referred to as the "Darien Events").
Except for the Usage Fee (as hereinafter defined) with respect to Darien
Events at the Center, Metropolitan shall have no interest in the revenue,
income or profits generated by any Darien Event by virtue of its lease of
the Center hereunder. As used herein, the term "Concert" shall not include
any Darien Event. Metropolitan shall not have the right to book, promote
or produce fireworks or laser light shows at the Center, provided that this
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sentence shall not be deemed to prohibit the booking of a Concert which
features fireworks as an ancillary part of such Concert. All Rejected
Concerts produced by
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Darien shall be produced in all material respects consistent with then
generally prevailing industry standards in the United States ("Industry
Standards") for first class amphitheaters in the United States having
similar attendance capacities as the Center, located in or near
metropolitan areas generally comparable in population to the population
contained within a 90-mile radius of the Center, and featuring events
similar to the Concerts "Comparable Facilities"). Darien shall use (and
Metropolitan shall provide the use of) such number of Metropolitan
employees as Darien shall request to provide production, xxxxx and internal
security services for Rejected Concerts. Metropolitan shall be solely
responsible for paying the wages of such employees, withholding any taxes
therefrom, maintaining required worker's compensation insurance with
respect thereto and providing such employees all other benefits to which
they are entitled (by operation of law or otherwise). Darien will
reimburse Metropolitan for its cost of such wages, salaries and benefits
with respect to periods during which Darien uses such employees.
2. Term
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2.1 The initial term of this Lease shall commence on the date
hereof and expire on October 15, 2020, unless earlier terminated according
to the provisions hereof. Thereafter, this Lease shall be automatically
renewed for one additional renewal term of ten years, unless earlier
terminated in accordance herewith, on the same terms and conditions as are
set forth herein if the average annual paid attendance at Concerts produced
by Metropolitan hereunder during the three consecutive Seasons preceding
the end of such initial term shall have exceeded 140,000 persons. As used
herein, "Term" shall mean the initial term and, if applicable, the renewal
term.
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2.2 As used herein, the term "Season" means the period
commencing on the earlier of (i) the first day in a calendar year on which
the Theme Park is open to the public or (ii) May 15, and ending on October
15 of each calendar year. The first Season of the Term hereof will be the
1996 Season.
3. Capital Improvements
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3.1 (a) On the date hereof, Darien, Metropolitan and Xxxx Marks
& Xxxxx LLP, as escrow agent (the "Escrow Agent") have entered into an
escrow agreement (the "Escrow Agreement") pursuant to which Metropolitan
will deposit with the Escrow Agent an amount equal to $2,500,000 (the
"Escrow Funds") no later than ten business days following the date hereof.
If such deposit is not made prior to the close of business on such tenth
business day, this Lease shall thereupon terminate and the obligations of
the parties hereunder shall thereupon be of no further force or effect,
other than the obligations of the parties under Section 6 hereof which
shall survive such termination. The Escrow Funds will be used to pay for
the hard and soft costs of the real and personal property improvements to
the Center described on Exhibit A (the "Improvements") and shall be
disbursed as provided in the Escrow Agreement, provided that no portion of
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the Escrow Funds will be payable to Metropolitan or its affiliates. The
Improvements shall be completed by Metropolitan prior to June 1, 1996,
except to the extent that the failure to so complete the Improvements is
caused by (i) delays arising out of Darien's failure to provide consents or
approvals required of it hereunder or (ii) delays arising out of a Force
Majeure Event (as defined below), provided, however, that the if roof
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referred to in Exhibit A and the other Improvements incorporated in the
roof structure (collectively, the "Roof") shall not have been completed by
June 1, 1996, but
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all other Improvements are completed in accordance with this sentence, then
Metropolitan shall not be deemed to have breached its obligations contained
in this sentence if and only if, (a) Metropolitan shall have used its best
efforts to complete the Roof by such date and (b) Metropolitan shall
continue to use its best efforts to complete the Roof as soon as
practicable following such date until the Roof is completed. Promptly
following the date hereof, Metropolitan shall retain a licensed
architectural firm acceptable to Darien to prepare drawings, plans and
specifications (collectively, "Specifications") for the Improvements, which
shall include a description, in reasonable detail, of the design and other
aesthetic aspects of the Improvements and a detailed estimate of the cost
of each Improvement. Immediately following its receipt thereof,
Metropolitan shall deliver a copy of such Specifications to the Chairman of
the Board, the President and the General Manager of Darien, it being
understood that Metropolitan shall use good faith efforts to obtain such
Specifications as soon as practicable after the date hereof. Darien and
Metropolitan shall jointly approve in writing all aspects of the proposed
Specifications. Deviation from the approved Specifications shall require
the prior written approval of Darien, which shall be deemed approved by
Darien if Darien does not object to such deviation within thirty days
following its receipt of written notice thereof from Metropolitan. As used
herein, "Force Majeure Event" shall mean an act of God, blizzard, fire,
flood, explosion, war, action or inaction of governmental authority,
accident, labor trouble or shortage, or any other circumstances of a
similar nature beyond the reasonable control of Metropolitan, in each case
arising out of reasons other than the adverse financial condition of any
party (other than Darien). If a Force Majeure Event shall occur,
Metropolitan shall diligently attempt to remove the cause or causes
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thereof and shall promptly notify Darien of the existence thereof and its
probable duration.
(b) Prior to January 15, 1996, the parties shall jointly
prepare a list of all governmental and regulatory licenses, filings,
notifications, permits, authorizations and approvals (collectively,
"Approvals") required or desirable in connection with the Improvements.
The parties will jointly make and obtain such Approvals and, in that
connection, (i) each party will provide the other party a copy of any
proposed filing or submission to any governmental or regulatory bodies,
agencies or authorities ("Authorities") no less than 72 hours prior to such
filing or submission, and will not make any such filing or submission to
which such other party objects in writing during such 72-hour period,
(ii) each party shall deliver to the other party reasonable prior written
notice of any proposed conferences (including scheduled telephonic
conferences) with Authorities with respect to such Approvals and such other
party shall have the right to be present thereat, and (iii) each party
shall forthwith provide to the other party copies of any correspondence (or
written summaries of any oral communications) between any Authority and
such party with respect to any aspect of the Improvements.
(c) At all times during the construction of the
Improvements, Metropolitan shall maintain or cause to be maintained owners
and contractors insurance in an amount of at least $5,000,000 (naming
Darien as an additional insured party) with respect to the construction of
the Improvements in form and substance acceptable to Darien. Metropolitan
shall retain contractors (including one or more general contractors for
Improvements, it being understood that the manufacturer/assembler of the
Roof over
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the permanent seating will act as general contractor with respect thereto)
reasonably acceptable to Darien to construct the Improvements. All such
contractors will maintain at all relevant times worker's compensation
insurance as prescribed by the laws of the State of New York and shall
deliver to Darien a certificate evidencing such insurance coverage.
Metropolitan shall regularly consult with the designated representative of
Darien (who, in the absence of any contrary designation, shall be Darien's
Director of Maintenance) with regard to all aspects of the Improvements and
shall not take any material action with respect thereto to which Darien
reasonably objects in writing. Metropolitan shall deliver written reports
with respect to the Improvements to Darien at least weekly prior to the
completion thereof, which reports shall include a description of the
progress to date, the status of Approvals, the costs incurred and any
proposed deviation from the Specifications. In the event the total cost of
the Improvements shall exceed the amount of the Escrow Funds, (i) the
Improvements listed as Items 1 and 2 on Exhibit A shall be completed at the
sole cost and expense of Metropolitan, (ii) the balance of the Improvements
shall be completed out of Escrow Funds in the order in which they appear on
Exhibit A, and (iii) any Improvements (other than Items 1 and 2 on Exhibit
A) not completed out of the Escrow Funds shall be leased or otherwise
provided by Metropolitan at its sole cost and expense. Promptly following
completion of the Improvements, Metropolitan shall deliver to Darien "as
built" plans and specification with respect thereto.
3.2 During the Term, Metropolitan shall, at its sole expense,
make such repairs to (whether or not such repairs would constitute an
ordinary or capital expense under generally accepted accounting
principles), and maintenance of, the Center
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required or desirable in order to maintain the Center at all times in good
operating condition consistent with Comparable Facilities in accordance
with then Industry Standards. In that connection, on or before each
March 15 preceding any Season, commencing with the 1997 Season,
Metropolitan shall submit to the Chairman of the Board, the President and
the General Manager of Darien an operating plan, including a schedule in
reasonable detail of anticipated operating expenses (the "Operating Plan")
and a capital budget (the "Budget") for the Center in respect of such
Season. The Budget shall include drawings, plans and specifications for
any proposed capital improvements to the Center (including a detailed
description of the design and other aesthetic aspects of such improvements
and a detailed estimate of the cost of each such improvement). The Budget
shall also include a description of any other proposed change in the
appearance or use of the Center. All aspects of the Budget shall require
the prior written approval of Darien, which shall not be unreasonably
withheld in the case of any repairs or maintenance specified therein,
provided that any such aspect as to which Darien shall not have objected in
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writing within 30 days following its receipt of the Budget and all
supporting materials shall be deemed approved by Darien. If Metropolitan
shall propose to make any improvements, repairs or maintenance not
contemplated by any Budget, Metropolitan shall notify Darien in writing of
such proposal and shall not take any action with respect thereto to which
Darien objects (in the case of capital improvements) or reasonably objects
(in the case of repairs or maintenance) in writing within seven days
following its receipt of such notice (or in the case of any proposed action
which Metropolitan indicates in such notice is to be taken in response to
any emergency situation, within 48 hours following Darien's receipt of such
notice).
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3.3 During the Term, Metropolitan, at its sole cost, shall
provide such operating supplies, equipment and other personal property
("Metropolitan Equipment") to the Center required in order to conduct the
Concerts and perform its obligations hereunder. The Metropolitan
Equipment, to the extent readily movable and not otherwise affixed to the
Center, shall remain the property of Metropolitan and, after the Term,
Metropolitan shall be entitled to remove such Metropolitan Equipment from
the Center, provided such removal will not result in any structural or
other damage to the Center.
3.4 Metropolitan shall have the right to enter the Center during
periods other than the Seasons, at any reasonable time after the giving of
at least twenty-four hours prior written notice to Darien, to the extent
reasonably required to perform its obligations under this Lease.
3.5 If Metropolitan fails to perform in any material respect any
of its obligations under Section 3.2 to make repairs to, and maintenance
of, the Center, upon fifteen days' prior written notice to Metropolitan by
Darien, or in the case of an emergency, immediately, Darien may enter the
Center, perform such obligations on Metropolitan's behalf and recover the
cost of such performance, together with interest thereon at the prime rate
of Chemical Bank then in effect at its principal office in New York City,
as additional rent from Metropolitan, payable within thirty days of
Metropolitan's receipt of an invoice therefor.
4. Concerts
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4.1 Prior to February 1 preceding each Season, Metropolitan
shall provide Darien with a preliminary list of Concerts booked or
tentatively booked for such
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Season, and Darien will consult with Metropolitan in connection with the
inclusion of such list in any promotional mailing done by Darien.
Metropolitan shall give to each of the General Manager of the Theme Park
and the Darien Coordinator, as soon as practicable, telephonic notice and
written notice delivered on a business day in accordance with Section 27,
of any Concert Metropolitan then proposes to book and produce at the Center
and will not book or produce any such Concert with respect to which Darien
has objected in writing no later than the close of business on the business
day next succeeding the business day on which Metropolitan delivered such
written notice. In the event Darien shall object to any such proposed
Concert involving a nationally-recognized performer, performers or show,
which is during the applicable Season conducting a tour involving
performances in the northeastern United States and eastern Canada at
amphitheaters generally comparable to the Center (which tour may also
include selected performances at indoor arenas having attendance capacities
at least equal to the Center and featuring events similar to the Concerts)
(a "Non-approved Concert"), the number of Minimum Concerts during such
Season shall be reduced by a number equal to the number of Non-approved
Concerts during such Season; furthermore, if, during any Season, there
shall be in excess of two Non-approved Concerts, the rent payable by
Metropolitan to Darien under Section 5 hereunder shall be reduced by
$25,000 for each such Non-approved Concert during such Season in excess of
two. The times of all Concerts will be in accordance with Industry
Standards, and no Concert shall continue beyond one calendar day.
Metropolitan will use its best efforts to cause all Concerts to end prior
to 11:00 P.M. Metropolitan shall provide to Darien not less than 25
complimentary tickets to each Concert. Metropolitan shall have the right
to
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provide to any party complimentary tickets to any Concert in accordance
with then Industry Standards, including tickets provided to sponsors of the
Concerts and performers or used in connection with the promotion of such
Concert; provided that (i) Metropolitan shall not use complimentary tickets
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to pay or otherwise discharge wages, salary or benefits of any full or
part-time personnel employed by or on behalf of Metropolitan in connection
with the operation of the Center and (ii) the aggregate number of
complimentary tickets for any Concert used by Metropolitan to satisfy or
discharge Metropolitan Concert Expenses (other than media trades) shall not
exceed 500.
4.2 No later than November 1 of each year prior to each Season,
commencing with the 1997 Season, Darien shall send Metropolitan written
notice of the dates (which shall not exceed four calendar days) on which
Kingdom Bound shall have the exclusive use of the Center (the "KB Event").
During the 1996 Season the KB Event shall have the exclusive use of the
Center on August 21 - August 24, inclusive. Metropolitan shall have the
right to schedule Concerts on all dates during the Season not so reserved
by Darien, provided that, during any Season, Darien may schedule a Darien
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Event for any date which is less than thirty days from the date on which
written notice of such Darien Event is delivered to Metropolitan and on
which no approved Concert is then scheduled. No later than thirty days
following any Darien Event (other than the KB Event or any Rejected
Concert), Darien shall deliver to Metropolitan an amount equal to $2,500
for each day on which such Darien Event used the Center (the "Usage Fee").
5. Rent
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During each year of the Term, Metropolitan shall pay annual rent
to Darien in an amount equal to $250,000, adjusted as provided below,
payable in five equal
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installments on the first day of May, June, July, August and September of
each such year. In addition, no later than five business days following
the date of any Concert, Metropolitan shall pay to Darien as additional
rent an amount equal to (i) $1.00, adjusted as provided below, for each
paid attendee (which term as used in this Lease shall include all persons
who paid for tickets to such Concert, whether or not attending) at such
Concert, or (ii) if the aggregate number of paid attendees at all Concerts
during such Season shall then exceed 100,000, $3.00, adjusted as provided
below, for each paid attendee in excess of 100,000. The dollar amount of
rent specified in this Section 5 (i.e., the annual rent of $250,000 and the
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$1.00 or $3.00 per attendee rental) to be paid shall be increased (but not
decreased) for each fourth season of the Term (i.e., 1999, 2002, 2005, et.
---- --
seq.) by an amount equal to the product (rounded to the nearest tenth of a
---
cent in the case of attendee rental) obtained by multiplying the amount of
such rent in effect during the immediately preceding Season by the
aggregate percentage increase (rounded to the nearest tenth of a percent)
in the CPI during the three calendar years immediately preceding the date
of such increase. For example, if the CPI for 1995, 1996, 1997 and 1998
were 140, 142, 145 and 149, the percentage increase in the CPI for the
period 1996 through 1998 would equal 6.4%. Accordingly, the annual rent
for the 1999 Season would equal $266,000 and the per attendee rental for
that year would be $1.064 and $3.192, respectively. For the 2002 Season
the annual rental of $266,000 and the per attendee rent of $1.064 and
$3.190 would be similarly adjusted. The CPI shall mean the United States
Department of Labor, Bureau of Labor Statistics, Consumer Price Index (All
items; Buffalo-Niagara Falls, NY MSA) (1982 = 100) or if no such index
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is so published, by any other nationally-recognized publisher of similar
statistical information selected by Darien and Metropolitan.
6. Releases
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On the date hereof the parties have executed and delivered a
settlement agreement in the form annexed hereto as Exhibit B.
7. Noncompetition
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7.1 During the Term, Metropolitan and its affiliates will not
(i) book, promote or produce any Concerts in any outdoor amphitheater
located within 90 miles of the Center, (ii) have any interest, direct or
indirect, in the ownership, management or operation of any such
amphitheater, provided that Xxxxx Corporation may provide food, beverage
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and parking services to any such amphitheater, or (iii) book, promote or
produce any Concert during any Season at any indoor arena located within
such 90-mile radius if Metropolitan shall not have negotiated in good faith
to book such Concert at the Center or if the amount of the guaranteed
payment to be made by Metropolitan in respect of such Concert at such arena
shall be in excess of the amount of the guaranteed payment offered by
Metropolitan with respect to that Concert at the Center, provided that if
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the only available date for a proposed Concert shall be a date on which
(a) a Darien Event is then scheduled, Metropolitan shall so notify Darien
in writing and if Darien shall not have notified Metropolitan in writing
that it has rescheduled the Darien Event within two business days following
its receipt of such notice from Metropolitan, or (b) a Concert is then
scheduled at the Center and Metropolitan shall have failed (after using its
best efforts) to reschedule either such booked Concert or such proposed
Concert at the Center to avoid such conflict, then, in either case,
Metropolitan shall be entitled to book, promote and
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produce such proposed Concert on such date at an indoor arena within such
radius. Metropolitan acknowledges that a breach of its obligations under
this Section 7 would result in irreparable injury to Darien for which
monetary damages would not be an adequate remedy. Therefore, Metropolitan
consents to issuance of injunctive relief in the event of a breach of its
obligations under this Section 7, in addition to any other remedies to
which Darien is otherwise entitled.
7.2 During the Term, none of Darien, Premier Parks Inc. or their
respective subsidiaries will have any interest, direct or indirect, in the
ownership, management or operation of any outdoor amphitheater (other than
the Center) located within 90 miles of the Center.
8. Advertising
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At its expense, Metropolitan shall provide advertising and
marketing promotion for the Concerts of a type and, when aggregated with
such promotions as are provided by or on behalf of the performers thereof
or the shows constituting such Concerts, are in amounts consistent with
advertising and marketing for events comparable to the Concerts located at
Comparable Facilities in accordance with then Industry Standards. With
respect to all advertising and marketing placed by or on behalf of
Metropolitan, it will provide Darien with advance copies of such
advertising or the story boards thereof and a description of all other
material aspects of such advertising and marketing programs and will not
implement any such advertising or program (or portion thereof) to which
Darien reasonably objects in writing. Without limiting the foregoing,
(i) all ticket outlets for any Concert shall have available for sale
tickets for admission to both the Concert and the Theme Park ("Combo
Tickets"), (ii) Metropolitan shall use reasonable good faith efforts to
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cause all radio and television advertising relating to the Concert to
include a tag relating to the availability of Combo Tickets, and use
reasonable good faith efforts to cause such tag, in the case of radio
advertising, to last at least 5 seconds during any 60 second ad (or, in the
case of shorter or longer ads, a tag of proportional duration),
(iii) Metropolitan shall use reasonable good faith efforts to cause all
print advertising to contain at least three lines relating to the
availability of Combo Tickets, and (iv) no tickets to any Concert shall be
available for sale at any grocery store or chain of grocery stores other
than the grocery store or chain that then sells admission tickets to the
Theme Park. The provisions of clause (i) of the preceding sentence shall
not be applicable at any time during which Metropolitan is prevented from
complying with the provisions of such clause (i) by virtue of any agreement
or arrangement entered into by Darien.
9. Third Party Agreements/Control
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Metropolitan may enter into concession or other agreements with
reputable (in Metropolitan's reasonable opinion) third parties to provide
to it services required by it in order to perform its obligations
hereunder, provided that (i) the term of any such agreement shall not
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exceed the Term of this Lease and (ii) Metropolitan shall not assign to, or
contract with any other party in respect of, its obligation to book,
promote and produce Concerts hereunder. During the Term, Metropolitan
shall not permit any person, entity or group (as such term is defined in
the regulations promulgated under Section 13 of the Securities Exchange Act
of 1934) (other than the shareholders of Metropolitan on the date of this
Lease) to obtain or exercise "control" over Metropolitan. As used herein,
the terms "control" and "affiliates" shall have the meaning ascribed to
that term in the rules and regulations promulgated by the Securities and
Exchange Commission.
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10. Other Responsibilities of Metropolitan
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10.1 At all times during each Season of the Term and all other
times during which Metropolitan shall have access to the Center hereunder,
Metropolitan shall use and maintain the Center so as to avoid (i)
unreasonable fire and health hazards, (ii) material damage to the Center,
(iii) any violation (other than those existing on the date hereof) of
applicable laws, statutes, ordinances, rules, regulations, judicial
decisions, orders, existing recorded and enforceable covenants and
restrictions and other requirements of any Authority (collectively,
"Laws"), (iv) any nuisance or unsafe condition at the Center and (v) any
violation of the requirements of any applicable insurance policy maintained
by Metropolitan or Darien.
10.2 Without limiting any other duties and responsibilities of
Metropolitan under this Lease, Metropolitan shall have the following duties
and responsibilities with respect to the Concerts:
(a) Contract with all talent, staging companies and
contractors; and contract for all merchandise and promotion;
(b) Secure any necessary financing;
(c) Produce and stage the Concerts;
(d) Exercise control over all aspects of the Concerts
except to the extent control of any such aspect is to be exercised by
Darien according to the express provisions hereof;
(e) Arrange for all ticket refunds in the event of
cancellation of a Concert;
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(f) Except as otherwise provided herein, hire, supervise
and coordinate all personnel required for the Concerts;
(g) Conduct the day-of-the Concert settlements with the
talent and other contracting parties;
(h) Receive, record, pay out and account for monies, and
otherwise handle Concert finances, in a business-like manner in accordance
with the provisions hereof;
(i) Devise plans and provide for security within the Center
for the Concerts and coordinate with all appropriate Authorities with
respect thereto;
(j) Conduct all aspects of the Concert operation in a
manner consistent with then Industry Standards for Comparable Facilities;
(k) Except with respect to the limited maintenance to be
specifically provided by Darien in accordance with Section 11, take such
actions as are necessary to maintain the Center in good operating condition
during each Season in a manner consistent with then Industry Standards for
Comparable Facilities; and
(l) Pay all costs and expenses incurred in connection with
the presentation of the Concerts, including, but not limited to, sales
taxes, fees to artists, advertising and promotional costs, insurance costs,
costs of equipment and utilities (pursuant to separate meters for the
Center), including power generators and other equipment leased for any
Concert.
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11. Responsibilities of Darien
--------------------------
11.1 Without limiting any other duties and responsibilities of
Darien under this Lease, Darien shall have the following duties and
responsibilities with respect to the Concerts and the Center;
(a) Pay all real estate and personal property taxes with
respect to the Theme Park, which taxes shall not constitute Darien
Expenses, as hereinafter defined, except to the extent allocable to the
Center;
(b) Maintain and operate the parking area specified in
Schedule A (the "Concert Parking Area") and provide parking lot personnel;
(c) Permit access to the Concert Parking Area in connection
with the Concerts, subject to the provisions of this Lease, provided,
however, no such access shall constitute an easement, right-of-way or
license with respect to any part of the Theme Park;
(d) Provide in a first class manner for plumbing, electric,
water, sewer, garbage removal, lawn maintenance and ambulance services for
the Center;
(e) Select from among its management employees an
individual who shall act as "Darien Coordinator," and who shall assist
Metropolitan in the performance of its obligations hereunder; and
(f) Maintain the Center and provide security and utilities
therefor during periods other than the Seasons.
11.2 Subject to the provisions of Section 11.3, Darien shall be
solely responsible for paying the wages of all Darien employees,
withholding any taxes therefrom, maintaining required worker's compensation
with respect thereto and
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providing such employees all other benefits to which they are entitled (by
operation of law or otherwise).
11.3 The term "Darien Expenses" shall mean all reasonable direct
expenses and other expenses to the extent approved in writing by
Metropolitan, in each case actually incurred by Darien in performing its
duties and responsibilities hereunder, including, without limitation,
wages, salaries and benefits of Darien employees payable with respect to
periods during which Darien has provided Metropolitan the use thereof,
excluding (i) wages, salaries and benefits of Darien's management
personnel, (ii) wages, salaries and benefits of other Darien employees
payable with respect to any period other than periods during which Darien
has provided Metropolitan the use thereof, (iii) expenses incurred in
performing Darien's obligations under Section 11.1(f) hereof, and (iv) all
costs and expenses arising out of any Darien Event. Metropolitan shall
reimburse Darien for all Darien Expenses within 30 days following receipt
of any invoice therefor.
12. Joint Responsibilities.
----------------------
12.1 The parties shall jointly:
(a) Obtain all necessary Approvals for the Concerts; devise
plans for security for areas adjacent to the Center and coordinate such
plans with all appropriate Authorities;
(b) Devise plans for traffic control;
(c) Procure and maintain at all times during the Term all
Approvals required to operate the Center.
-20-
12.2 Each party shall cooperate with the other party in
connection with the joint responsibilities specified in this Section 12,
shall not make any filing or submission to any Authority to which the other
party objects in writing, shall provide the other party an opportunity to
be present at any proposed conference with Authorities and shall not take
any other material action regarding items of joint responsibility to which
the other party objects in writing.
13. Sponsorships
------------
Metropolitan shall not enter into any sponsorship agreements or
arrangements relating to any Concert or series of Concerts except with the
prior written consent of Darien, which shall not be unreasonably withheld,
except that no such consent shall be required with respect to any
sponsorship agreement or arrangement (i) relating to alcoholic beverages if
on the date of such agreement or arrangement the Theme Park does not have
any sponsorship arrangement relating to alcoholic beverages and (ii) that
Metropolitan is required to enter into an order to book a Concert, which
agreement or arrangement is applicable only to such Concert and provides
for no payment thereunder to Metropolitan. Metropolitan shall at least
thirty days prior to the execution of any sponsorship agreement provide
Darien with written notice thereof, including the identity of the proposed
sponsor. If any such proposed sponsor is then engaged in a business that
is competitive with the business conducted by any then existing sponsor of
the Theme Park, Darien shall promptly so notify Metropolitan in writing and
Metropolitan will promptly provide to Darien a written description of the
principal terms of such proposed agreement. Thereupon, Darien shall
promptly notify in writing such existing sponsor, shall specify in such
notice the principal business terms of
-21-
such proposed agreement and shall offer such existing sponsor the right to
match the terms specified in such notice. If such existing sponsor shall
agree in writing to match such terms within fifteen days following its
receipt of such notice, Metropolitan shall, in lieu of entering into any
such agreement with the proposed sponsor, enter into a sponsorship
agreement with such existing sponsor on such terms. Notwithstanding the
foregoing, Metropolitan shall not enter into any sponsorship agreement with
any entity engaged in the business of owning, managing or operating grocery
stores, or negotiate with any such entity in connection therewith, other
than the grocery store entity that is then a sponsor of the Theme Park.
14. Food and Beverage
-----------------
Metropolitan acknowledges that Darien and Canteen Corporation
("Canteen") are parties to a License and Concession Agreement, dated as of
May 3, 1993, as amended (the "Canteen Agreement") pursuant to which Canteen
provides food and beverage services at the Center. Darien has heretofore
provided Metropolitan a true and correct copy of the Canteen Agreement.
Metropolitan acknowledges that the rights of Canteen under the Canteen
Agreement shall be binding upon Metropolitan in respect of any Concert.
Metropolitan may agree to terminate or otherwise amend the Canteen
Agreement provided that (i) any amount payable to Canteen with respect to
--------
any such termination shall be borne solely by Metropolitan and (ii) no such
amendment shall extend the term of the Canteen Agreement beyond the end of
the Term. All amounts received by Darien under the Canteen Agreement in
respect of any Concert shall be promptly delivered to Metropolitan. Upon
written request of Metropolitan, Darien shall
-22-
use good faith efforts to cause the Canteen Agreement and the rights and
obligations of Darien thereunder to be assigned by Canteen to Metropolitan.
15. Receipts; Net Receipts
----------------------
15.1 Except as otherwise explicitly provided herein, during the
Term, Metropolitan shall be entitled to all Receipts derived from the
Concerts and shall bear the sole responsibility with respect to, and the
economic risk of, any Shortfall. "Receipts" shall mean all receipts
derived, directly or indirectly, from the following, computed on a cash
basis (including receipts payable to either party).
(a) Ticket sales for Concerts, excluding and deducting
therefrom, however, any ride or combo charge reflected in the cost of any
Combo Tickets;
(b) Facility or parking charges from the Concert Parking
Area for Concerts;
(c) Sale of Concert merchandise;
(d) Food and beverage revenues at the Center during
Concerts and ticketing rebates;
(e) Sponsorship fees to the extent attributable to the
Center (other than any such fees attributable to a Darien Event); and
(f) Any other sums received by Metropolitan with respect to
a Concert or Concert series, provided, however, Receipts shall not include
--------
sales taxes.
Notwithstanding the foregoing, any concession items as to which
either Metropolitan or Darien is entitled only to receive a percentage of
the receipts shall be included in Receipts only to the extent of the amount
actually paid to Metropolitan or Darien in respect thereto.
-23-
15.2 The term "Net Proceeds" shall mean Receipts less Concert
Expenses (as hereinbelow defined). If Receipts are less than Concert
Expenses, the difference shall be referred to as the "Shortfall".
15.3 The term "Concert Expenses" shall mean the aggregate of
Metropolitan Concert Expenses (as such term is hereinbelow defined) and
Darien Expenses.
15.4 The term "Metropolitan Concert Expenses" shall mean all
expenses actually incurred by Metropolitan in performing its obligations
and responsibilities under this Lease, excluding, however, wages, salaries
and other costs of Metropolitan's management employees (other than one
management employee located at the Center), the amount of the Escrow Funds
and all other amounts expended for capital improvements to the Center by
Metropolitan pursuant to Section 3.2.
15.5 Promptly after each Concert, but in no event later than
twenty-four (24) hours thereafter:
(a) Metropolitan shall furnish to Darien a true and correct
statement of the Receipts for and paid attendees at such Concert, which
statement shall contain reasonable detail and support for all figures
therein and shall be certified by the chief financial officer, or other
executive officer, of Metropolitan, and shall deliver to Darien the amount
of all ride or combo charges in respect of all Combo Tickets sold for such
Concert; and
(b) Darien shall furnish to Metropolitan a true and correct
statement of the Darien Expenses for such Concert, which statement shall
contain
-24-
reasonable detail and support for all figures therein and shall be
certified by the chief financial officer, or other executive officer, of
Darien.
15.6 Within thirty (30) days after the end of each Season,
Metropolitan shall furnish Darien with a summary profit and loss statement
relating to the operation of the Center by Metropolitan during such Season,
which statement shall be certified by the chief financial officer, or other
executive officer, of Metropolitan, which shall include, without
limitation, aggregate totals of the following for such Season: (i)
Receipts, (ii) Concert Expenses, (iii) Metropolitan Concert Expenses and
(vi) Net Proceeds (or Shortfall).
15.7 Except as otherwise provided herein, all accounting terms
shall have the meaning assigned to it in accordance with generally accepted
accounting principles, except that the Escrow Funds will be amortized on a
straight-line basis over 25 years, notwithstanding any different
amortization method provided in such accounting principles. Metropolitan
shall maintain its books and records and conduct its business in accordance
with customary internal financial and accounting controls.
16. Condemnation
------------
If any part of the Center is condemned or otherwise taken under
the power of eminent domain, or conveyed in lieu of condemnation, and the
condemnation or taking materially and adversely affects Metropolitan's use
of the Center, Metropolitan shall have the right to terminate this Lease by
written notice to Darien delivered within 90 days after such condemnation
or taking. In such event, Metropolitan shall forthwith pay to Darien all
rent and other amounts payable in respect of any period prior to the date
of such termination, and Darien shall not be required to pay Metropolitan
any
-25-
amount except as provided in this Section 16. In the event of such a
termination, the parties shall jointly select an investment banking firm or
other entity which is regularly engaged in the valuation of businesses (the
"Appraiser"). Using generally accepted methods of valuation, the Appraiser
shall deliver a written report to the parties specifying the value as of
the date of (but without giving effect to) such termination of each party's
interest in the Center, and any award that may be paid in connection with
such condemnation or taking shall be divided between the parties in
proportion to the respective value of the parties' interests in the Center
as specified in the report of the Appraiser. If part of the Center is
condemned or taken, and Metropolitan does not elect to terminate this
Lease, this Lease shall be unaffected thereby, Metropolitan shall pay all
rent and other amounts payable hereunder and Darien shall not have any
obligation to repair or restore any part of the Center. If the Center is
temporarily condemned or taken, this Lease shall be suspended for such
period, and Metropolitan shall have no obligation to pay rent and other
amounts payable under this Lease during such period, provided, however,
-------- -------
that in such case, Metropolitan shall not be entitled to receive any
portion of any award that represents compensation for the use or occupancy
of the Center during any applicable portion of any Season.
17. Assignment and Subletting
-------------------------
17.1 The terms and conditions in this Lease were offered solely
by Darien to Metropolitan as an inducement to lease and use the Center as
provided herein. Metropolitan acknowledges and agrees that Darien would
not necessarily lease the Center to another party on such terms and
conditions, and Darien is specifically relying on the experience,
reputation and expertise of Metropolitan in booking Concerts in
-26-
agreeing to the provisions of this Lease. Therefore, Metropolitan shall
not voluntarily, involuntarily, or by operation of law, without the prior
written consent of Darien:
(i) sublet all or any part of the Center or, except as
explicitly permitted hereunder, allow it to be sublet, occupied or used by
any person or entity other than Metropolitan;
(ii) assign Metropolitan's interest under this Lease; or
(iii) amend or modify an assignment, sublease or other
transfer that has been previously approved by Darien.
17.2 Any action taken or proposed to be taken pursuant to Section
17.1 shall be collectively referred to as an Assignment, and any third
party succeeding to, or proposed to succeed to, all or a portion of
Metropolitan's interest under this Lease shall be referred to as an
Assignee. Any transfer of control of Metropolitan, by means of any
transfer or transfers of stock, assets or otherwise, shall be deemed an
Assignment. In the event of an Assignment arising out of any such transfer
of control of Metropolitan or any transfer of all or a substantial portion
of its assets, Darien shall not withhold its consent thereto if, in light
of the financial condition, business reputation, business experience and
prospects of the proposed assignee, the withholding thereof would be deemed
unreasonable. No Assignment shall be effective until Metropolitan has
delivered to Darien an executed counterpart of the document evidencing the
Assignment in form and substance satisfactory to Darien.
17.3 Notwithstanding any other provision of this Lease,
Metropolitan may assign this Lease to Xxxxx Corporation ("Xxxxx"), any
subsidiary of Metropolitan or Xxxxx or any entity controlled by
Metropolitan then engaged in the business of
-27-
producing Concerts, in each case without the consent of Darien.
Metropolitan shall give Darien 60 days' prior written notice of any such
Assignment. As used herein, the term "controlled" shall have the meaning
provided in the rules and regulations of the Securities and Exchange
Commission.
17.4 Except as provided in Section 17.3, any attempted Assignment
without Darien's consent shall constitute an Event of Default and shall be
voidable at Darien's option. Darien's consent to any one Assignment shall
not constitute a waiver of its rights hereunder with respect to any
subsequent Assignment or a consent to any subsequent Assignment.
ANY ASSIGNMENT, SUBLETTING, OCCUPANCY, OR USE WITHOUT THE PRIOR
WRITTEN CONSENT OF DARIEN OR WITHOUT FULL COMPLIANCE HEREWITH SHALL BE VOID
AND SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THIS LEASE.
18. Change in Laws
--------------
If any applicable Authority shall adopt any Law that prohibits
Concerts at the Center or that, by means of regulating maximum noise
levels, renders performance of Concerts at the Center impossible,
Metropolitan shall have the right, exercisable by written notice to Darien
delivered within 90 days following the date of such adoption, to terminate
this Lease. In such event, Metropolitan shall forthwith pay to Darien all
rent and other amounts payable in respect of any period prior to the date
of such termination, and Darien shall not be required to pay Metropolitan
any portion of the Unamortized Escrow Funds as of the date of such
termination.
19. Termination
-----------
-28-
19.1 Either party may terminate this Lease by written notice to
the other party either (i) without Cause or (ii) with Cause. Any
termination notice will specify whether the termination is with or without
Cause. Any termination without Cause shall be effective 60 days following
the date termination notice is given, provided, however, no notice of such
termination without Cause given during a Season or less than six months
prior to the first day of a Season shall be effective before the last day
of that Season. Any termination with Cause shall be effective on the date
termination notice is given.
19.2 "Cause" shall mean the occurrence of any Event of Default by
or relating to the non-terminating party under the provisions of Section 25
hereof.
19.3 (a) In the event this Lease is terminated with Cause by
Metropolitan or terminated without Cause by Darien, the parties agree that
the following shall constitute the sole remedy of Metropolitan in respect
of such termination:
(i) Darien shall forthwith pay to Metropolitan an
amount equal to the Unamortized Escrow Funds as of the effective date of
such termination.
(ii) Darien shall forthwith pay to Metropolitan an
amount equal to two times the average of the annual Net Proceeds from
Concerts during the three full Seasons preceding such termination (or, if
the termination shall occur prior to the end of the 1998 Season, the
average annual Net Proceeds for each full Season during the Term), it being
understood that such average will be determined by subtracting any
Shortfall for any applicable Season; and
(iii) Darien shall not book, promote or produce any
Concerts, or enter into any agreement with respect to the booking,
promotion or
-29-
production of any Concerts, in each case, at the Center during the Season
in which such termination occurs and the three Seasons following such
termination, it being acknowledged that Darien shall continue to have the
right to book, promote and produce during such period the KB Event and
Darien Events that would not constitute Concerts as such term is defined in
Section 1.1.
(b) In the event this Lease is terminated with Cause by
Darien or without Cause by Metropolitan, the following shall constitute the
sole remedy of Darien (except as otherwise provided in Section 7) in
respect of such termination:
(i) Darien shall have no obligation to pay to
Metropolitan any portion of the Unamortized Escrow Funds as of the
effective date of such termination;
(ii) the provisions of Section 7 hereof shall remain
in full force and effect during the Season in which such termination occurs
and the three Seasons following such termination; and
(iii) In the case of a termination with Cause by
Darien, Metropolitan shall forthwith pay to Darien an amount equal to two
times the average annual amount received by Darien under Section 5 hereof
(including rent based on paid attendees) for the three full Seasons
preceding such termination (or, if the termination shall occur prior to the
end of the 1998 Season, the average annual payment thereunder for each full
Season during the Term).
(c) The "Unamortized Escrow Funds" as of any date shall
mean an amount equal to the product obtained by multiplying the amount of
the Escrow Funds by a fraction, (i) the numerator of which shall equal 25
less the number of full Seasons in
----
-30-
the period commencing on the date of this Lease and ending on the effective
date of any termination hereof and (ii) the denominator shall equal 25.
19.4 Upon any termination of this Lease, Metropolitan shall, on
or before the effective date of such termination, vacate any part of the
Center used and/or occupied by Metropolitan, and subject to Section 3.3
and, except in the case of a termination under Section 26, surrender the
Center to Darien in a condition consistent with the then Industry Standards
for Comparable Facilities. Except as otherwise provided in Section 3.3,
upon any such termination, the Center, including the Improvements and other
capital and other improvements thereto made by Metropolitan, shall be the
sole and exclusive property of Darien. Metropolitan shall indemnify Darien
against any loss or liability resulting from any delay by Metropolitan in
surrendering the Center as provided in this Section 19.4, including,
without limitation, any claims made by any succeeding tenant, losses to
Darien arising out of lost opportunities to lease the Center or Darien's
inability to use the Center or any portion thereof for its own account.
19.5 The parties acknowledge and agree that in the event of a
termination of this Lease, damages will be difficult to ascertain and that
the payments and other remedies specified in this Section 19 constitute a
good faith estimate of liquidated damages, and shall not constitute a
penalty imposed upon any party.
19.6 The provisions of this Section 19 (other than Section 19.4)
shall not be applicable to any termination of this Lease pursuant to
Sections 16, 18 or 26 hereof.
20. Metropolitan Records
--------------------
All records of Metropolitan pertaining to this Lease shall be
kept on file by Metropolitan at its main office for a period of eight (8)
years from the date the record is
-31-
made, and Metropolitan shall, upon reasonable notice, give Darien and/or
its authorized representatives the right at reasonable times to inspect,
examine, audit and copy, during normal business hours, such of
Metropolitan's business books and records that are directly relevant to
determining and/or calculating Receipts, or are reasonably necessary in
order to determine whether Metropolitan has complied with the provisions of
this Lease. The cost of such inspection, examination, audit and copying
shall be at the sole expense of Darien and such inspection, examination,
audit and copying shall be conducted at Metropolitan's principal office.
The provisions of this Section 20 shall survive any termination of this
Lease except for a termination pursuant to Section 3.1(a).
21. Darien Records
--------------
All records of Darien pertaining to this Lease shall be kept on
file by Darien at its main office for a period of eight (8) years from the
date the record is made; and Darien shall, upon reasonable notice, give
Metropolitan and/or its authorized representatives the right at reasonable
times to inspect, examine, audit and copy, during normal business hours,
such of Darien's business books and records that are directly relevant to
determining and/or calculating Darien Expenses or are reasonably necessary
in order to determine whether Darien has complied with the provisions of
this Lease. The cost of such inspection, examination, audit and copying
shall be at the sole expense of Metropolitan and such inspection,
examination, audit and copying shall be conducted at the Darien location
where said records are normally maintained. The provisions of this Section
21 shall survive any termination of this Lease, except for a termination
pursuant to Section 3.1(a).
-32-
22. Indemnification; Insurance
--------------------------
22.1 Metropolitan shall indemnify and hold Darien, its officers,
directors, affiliates, agents, employees and shareholders harmless from and
against any loss, liability, damage, injury, death, cost or expense,
including, without limitations attorneys' fees and disbursements (including
those incurred in establishing liability under the indemnification), in all
cases, after giving effect to the receipt of any insurance proceeds
("Losses"), arising out of or resulting from (i) any Concert, or other
event produced by Metropolitan at the Center or any contract or other
agreement entered into by Metropolitan with respect to any such Concert or
other event (including, without limitation, nonappearance by any performer
and injury to any person at any Concert), (ii) noncompliance by
Metropolitan with all applicable Laws and Approvals or (iii) the breach of
any agreement, duty or obligation of Metropolitan contained in this Lease;
provided, however, that nothing contained herein shall require Metropolitan
-------- -------
to indemnify any party under this Section 22.1 for Losses arising out of
the willful misconduct or gross negligence of Darien, its employees (except
to the extent then under the direction of Metropolitan) or its agents.
22.2 Darien shall indemnify and hold Metropolitan, its officers,
directors, affiliates, agents, employees and shareholders harmless from and
against any Loss arising out of or resulting from (i) any Darien Event or
any contract or other agreement entered into by Darien with respect to such
Darien Event (including nonappearance by any performance and injury to any
person at any Darien Event), (ii) noncompliance by Darien with all
applicable Laws and Approvals or (iii) the breach of any agreement, duty or
obligation of Darien contained in this Lease; provided, however, that
-------- -------
nothing contained
-33-
herein shall require Darien to indemnify any party under this Section 22.2
for Losses arising out of the willful misconduct or gross negligence of
Metropolitan, its employees (except to the extent then under the direction
of Darien) or its agents.
22.3 (a) Promptly after receipt by any indemnified party of
notice of any demand, claim or circumstance which would or might give rise
to a claim or the commencement (or threatened) commencement) of any action,
proceeding or investigation (an "Asserted Liability") that may result in a
Loss, such indemnified party shall give prompt notice thereof (the "Claims
Notice") to the indemnifying party. The Claims Notice shall describe the
Asserted Liability in reasonable detail and shall indicate the amount
(estimated, if necessary, and to the extent feasible) of the Loss that has
been or may be suffered by the indemnified party.
(b) The indemnifying party may elect to defend, at its own
expense and with its own counsel, any Asserted Liability unless (i) the
Asserted Liability seeks an injunction or other equitable or declaratory
relief against any indemnified party, (ii) any indemnified party shall have
reasonably concluded that there is a conflict of interest between such
indemnified party and the indemnifying party in the conduct of such defense
or (iii) any indemnified party shall have reasonably concluded that the
Asserted Liability may adversely affect, or result in an adverse effect
upon, the business, operations or prospects of such indemnified party. If
the indemnifying party elects to defend such Asserted Liability, it shall
within thirty days (or sooner, if the nature of the Asserted Liability so
requires) notify the indemnified party or parties of its intent to do so,
and the indemnified party or parties shall cooperate, at the expense of the
indemnifying party, in the defense of such Asserted Liability. If the
indemnifying party elects not to
-34-
defend the Asserted Liability, is not permitted to defend the Asserted
Liability by reason of the first sentence of this Section, fails to notify
the indemnified party or parties of its election as herein provided or
contests its obligation to indemnify under this Lease with respect to such
Asserted Liability, the indemnified party or parties may pay, compromise or
defend such Asserted Liability at the sole cost and expense of the
indemnifying party. Notwithstanding the foregoing, neither party may
settle or compromise any claim over the reasonable written objection of the
other, provided that any indemnified party may settle or compromise any
--------
claim as to which the indemnifying party has failed to notify such
indemnified party of its election under this Section, as to which the
indemnifying party is contesting its indemnification obligations hereunder
or involving an Asserted Liability of the type described in clause (iii) of
the first sentence of this Section. In any event, each party may
participate, at its own expense, in the defense of any Asserted Liability.
If the indemnifying party chooses to defend any Asserted Liability, each
indemnified party shall make available to the indemnifying party any books,
records or other documents within its control that are necessary or
appropriate for such defense. Any Losses of any indemnified party for
which indemnification is available hereunder shall be paid within 30 days
following written demand therefor. The provisions of Sections 22.1 - 22.3
shall survive the termination of this Lease.
(c) Each indemnified party acknowledges and agrees that
Losses shall be determined after giving effect to the receipt by such
indemnified party of any insurance proceeds covering all or any portion of
any Loss and that such party irrevocably waives any indemnification rights
it might otherwise have under this Section 22 in respect of any portion of
any Loss to the extent of such insurance proceeds. No
-35-
person or entity (including, without limitation, any insurance carrier)
shall have any rights (including by way of subrogation) to receive any
payment from the indemnifying party in respect of the portion of any Loss
covered by such insurance proceeds.
(d) As used in Section 22, the term "Losses" as it applies
to the nonappearance by any performer at a Concert shall not include any
damages of Darien arising out of any loss of attendance at the Theme Park
caused by such nonappearance.
22.4 During the Term, Metropolitan shall procure or cause to be
procured and maintain at all times the following insurance with insurers
reasonably acceptable to Darien:
(a) Worker's Compensation insurance as prescribed by the
laws of the State of New York; and
(b) Comprehensive general, automobile, fire and legal
liability insurance (including dramshop liability) with combined single
limits of not less than $1,000,000 for any one occurrence in which bodily
injury or property damage is alleged, provided, however, that Metropolitan
shall maintain at all times during the Term of this Lease an umbrella
insurance policy in an amount of at least $5,000,000 per occurrence with
respect to each type of claim for bodily injury or property damage referred
to in this Section.
22.5 Metropolitan shall furnish Darien copies of all applicable
insurance policies (which shall be reasonably acceptable in form and
substance to Darien) and Certificates of Insurance evidencing such coverage
which shall name Darien as an additional insured on each such policy (other
than worker's compensation polices) and
-36-
which will provide that such insurance would not be cancelled or modified
without at least thirty (30) days' prior written notice to Darien.
23. Relationship
------------
It is understood and agreed by the parties that only a
landlord/tenant relationship is established under the terms and conditions
of this Lease, that the parties are not partners or joint venturers; that
employees of Metropolitan are not, nor shall they be deemed to be,
employees of Darien, and that, except as otherwise provided herein,
employees of Darien are not, nor shall they be deemed to be, employees of
Metropolitan, and that neither party shall have the power or right to make
or create any representations, warranties, promises, obligations,
liabilities, commitments or agreements, whether orally or in writing, on
behalf of the other party, and, without limiting the foregoing, neither
party shall contract or attempt to contract on behalf of or in the name of
the other party or otherwise seek to bind the other party or render the
other party liable or responsible for the performance of any agreement or
other obligation. Each party shall pay, as and when due, all of its own
obligations and liabilities with respect to the Concerts, the Center and
this Lease.
24. Representations and Warranties
------------------------------
Each party warrants and represents to the other that it has the
corporate right and authority to enter into this Lease and perform its
obligations hereunder; that this Lease has been duly authorized, executed
and delivered and constitutes its legal, valid and binding obligations in
accordance with its terms. The execution, delivery and performance of this
Lease does not and will not conflict with, or constitute a default
-37-
under, any agreement to which such party is a party or by which it or its
assets may be bound.
25. Events of Default
-----------------
The following shall constitute Events of Default under this
Lease:
(a) If a party shall default in the making of a payment as and
when due hereunder and such default shall not be cured within fifteen (15)
days after the giving of written notice thereof by the other party;
(b) If Metropolitan shall fail to produce a number of Concerts
featuring nationally-recognized performers or shows during any three
consecutive Seasons equal to the sum of the Minimum Concerts for such
Seasons;
(c) If Metropolitan shall default in the performance of, or
otherwise fail to comply with, the provisions of Section 17 hereof;
(d) If a party shall default in the performance of, or otherwise
fail to comply with, any other term or condition of this Lease and such
default or failure shall continue uncured for more than thirty (30) days
after the giving of written notice thereof by the other party; provided,
however, that if such default or failure is curable and if the cure thereof
shall have been commenced within such 30-day period and the party in
default shall be diligently and continuously prosecuting such cure, the
cure period shall be extended for the period reasonably required for such
cure but not to exceed an additional ninety (90) days;
(e) If a decree or order is rendered by a court having
jurisdiction (i) adjudicating a party as bankrupt or insolvent, or (ii)
approving as properly filed a petition seeking reorganization,
readjustment, arrangement composition or similar relief
-38-
for a party under the federal bankruptcy laws or any similar state law, and
such decree or order continues undischarged for a period of sixty (60)
days;
(f) If a decree or order is rendered by a court having
jurisdiction (i) for the appointment of a receiver or liquidator or trustee
or assignee in bankruptcy or insolvency of a party or of a substantial part
or its property or for the winding up or liquidation of its affairs, and
such decree or order remains in force undischarged and unstayed for a
period of sixty (60) days, or (ii) for the sequestration or attachment of
any substantial part of the property of a party without its return to the
possession of such party or its release from such sequestration or
attachment within thirty (30) days thereafter; or
(g) If a party (i) institutes proceedings to be adjudicated a
voluntary bankrupt or an insolvent, or (ii) consents to the filing of a
bankruptcy proceeding against it, or (iii) files a petition or answer
seeking reorganization, readjustment, arrangement, composition or similar
relief under the federal bankruptcy laws or any other similar law or
practice, or (iv) consents to the filing of any such petition or to the
appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency or such party or a substantial part of its
properties; or (v) makes an assignment for the benefit of creditors, or
(vi) is unable to or admits in writing its inability to pay its debts
generally as they become due, or (vii) takes action in furtherance of any
of the aforesaid.
26. Destruction of the Center.
-------------------------
If all or any portion of the Center shall be damaged by fire or
other casualty, and such damage materially and adversely affects
Metropolitan's use of the Center (a "Material Destruction"), Darien may
elect to repair and rebuild the Center by
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delivery of written notice to Metropolitan within 90 days after Darien
determines the amount of insurance proceeds available to it arising out of
the Material Destruction. If Darien elects not to repair and rebuild the
Center, this Lease shall terminate. In such event, Metropolitan shall
forthwith pay to Darien all rent and other amounts payable in respect of
any period prior to the date of such termination, and Darien shall not be
required to pay Metropolitan any amounts except as provided in this Section
26. In the event of such a termination, the parties shall jointly select
an Appraiser. Using then generally accepted methods of valuation, the
Appraiser shall deliver a written report to the parties specifying the
value as of the date of such termination (but without giving effect
thereto) of each party's interest in the Center, and any proceeds from fire
or other casualty insurance maintained by Darien shall be divided between
the parties in proportion to the respective value of the parties' interests
in the Center as specified in the report of the Appraiser. If Darien
elects to repair and rebuild the Center following a Material Destruction,
(i) Darien shall so repair and rebuild the Center to its condition
immediately prior to the Material Destruction, (ii) the rebuilding and
repair of the Center shall be completed within one year following such
election by Darien, provided that such one-year period will be extended by
--------
the duration of any Force Majeure Event (as so extended, the "Rebuilding
Period"), (iii) the rebuilding shall be funded by the proceeds of fire or
other casualty insurance maintained by Darien and, to the extent such
proceeds are insufficient to complete such rebuilding, by Darien and (iv)
the rights and obligations of the parties under this Lease will be
suspended during the Rebuilding Period and the Term hereof will be extended
by a period equal to the duration of the Rebuilding Period. During the
Term, Darien shall maintain fire and other casualty insurance in respect of
the
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Center. As used in this Section 26, the term "Force Majeure Event" shall
have the meaning provided in Section 3.1(a) except that references to
Metropolitan in such definition shall be deemed to be references to Darien
and references therein to Darien shall be deemed to be references to
Metropolitan.
27. Notices
-------
Any notice under or with respect to this Lease shall be in
writing and shall be personally delivered or sent by overnight courier
service, or by telecopy to the following addresses (or such other addresses
of which notice has been given in accordance with the provisions of this
Section):
If to Metropolitan:
The Metropolitan Entertainment Co., Inc.
0 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Fax #: (000) 000-0000
With a simultaneous copy to:
The Metropolitan Entertainment Co., Inc.
Xxx Xxxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Fax #: (000) 000-0000
and
Xxxxx Services Corp.
Xxx Xxxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax #: (000) 000-0000
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If to Darien:
Darien Lake Theme Park and Camping Resort, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000
Attention: General Manager
Fax #: (000) 000-0000
With a simultaneous copy to:
(i) Premier Parks Inc.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Fax #: (000) 000-0000
and
(ii) Xxxx Marks & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Fax #: (000) 000-0000
Any notice sent by overnight courier service shall be effective on the
business day on which delivery is made or transmitted by telecopier, on the
date confirmation of receipt thereof is received by the party giving such
notice. Any notice may be given by Darien's attorney on behalf of Darien
and by Metropolitan's attorney on behalf of Metropolitan.
28. General
-------
28.1 This Lease sets forth the entire agreement and understanding
of the parities in respect to the transactions contemplated hereby and
supersedes all prior agreements, arrangements, and understandings relating
to the subject matter hereof.
28.2 All the terms and conditions of this Lease shall be binding
upon, and inure to the benefit of, and be enforceable by, the parties and
their respective
-42-
successors. This Lease and the rights and obligations hereunder shall not
be assignable by either party, without the prior written consent of the
non-assigning party, except:
(a) As provided in Section 17;
(b) Darien shall have the absolute right to assign this
Lease and all rights and obligations hereunder to any wholly-owned
subsidiary of Premier Parks Inc. or any subsequent owner and/or operator of
the Theme Park, including, without limitation, any joint venture of which
Darien is a venturer; and
(c) No assignment referred to hereinabove shall be binding
upon or effective against the non-assigning party unless and until notice
of such assignment, with all relevant detail, is given to the non-assigning
party by the assigning party.
28.3 Darien and its agents may enter the Center during any Season
at any reasonable time after giving at least twenty-four (24) hours' prior
written notice to Metropolitan, or immediately in the case of any
emergency, for the purpose of: (i) inspecting the Center; (ii) posting
notices of non-responsibility; (iii) supplying any service to be provided
by Darien to Metropolitan hereunder; (vi) staging any Darien Event in
accordance with the terms hereof; (v) making improvements, repairs or
maintenance in the event of a default with respect thereto by Metropolitan;
or (vi) responding to an emergency. Darien shall have the right to use any
means it reasonably deems necessary and proper to enter the Center in an
emergency. Any entry into the Center by Darien in accordance with this
Section shall not be a forcible or unlawful entry into, or a detainer of,
the Center, or an eviction, actual or constructive, of Metropolitan from
the Center. Darien shall use reasonable efforts to avoid damage to
-43-
Metropolitan's property when entering the Center, and shall not
unreasonably interfere with Metropolitan's business or operations.
28.4 Darien reserves the right to grant easements, rights, and
dedications that Darien reasonably deems necessary or desirable, and to
record parcel maps and restrictions, so long as such easements, rights,
dedications, maps and restrictions do not interfere in any material respect
with or restrict in any material respect Metropolitan's use or operation of
the Center or the Parking Area or increase in any material respect
Metropolitan's obligations or limit in any material respect Metropolitan's
rights hereunder.
28.5 Except as otherwise provided in this Lease, Darien shall not
be liable to Metropolitan, nor shall Metropolitan be entitled to terminate
this Lease or to any abatement of rent, for any damage to the Center, any
injury to Metropolitan or any of its employees, agents or invitees, or any
loss to Metropolitan's business arising out of any cause.
28.6 As long as Metropolitan pays the rent and other amounts as
specified in this Lease and performs all its obligations under this Lease,
Darien will not disturb Metropolitan's peaceful and quiet enjoyment of the
Center during each Season of the Term.
28.7 If Metropolitan does not vacate the Center at the end of the
Term, the holding over shall constitute a month-to-month tenancy, and not a
renewal of this Lease, with rent payable equal to two (2) times the rent in
effect immediately prior to the holding over.
-44-
28.8 Both parties represent and warrant to each other that they
have not incurred or caused to be incurred any liability for real estate
brokerage commissions or finder's fees in connection with the execution of
this Lease. Each party agrees to indemnify, defend and hold the other, its
officers, directors, employees, agents and affiliated entities harmless
from and against any and all loss, cost, claim and expense incurred as a
result of the breach of this warranty.
28.9 All obligations of either party which by their nature
involve performance after the end of the Term, or which cannot be
ascertained to have been fully performed until after the end of the Term,
shall survive the expiration or sooner termination of this Lease.
28.10 The failure of either party at any time or times to
require performance of any provisions hereof shall in no manner affect the
right of such party to enforce the same at a later time. No waiver by
either party of any condition, or of the breach of any provision contained
in this Lease, whether by conduct or otherwise, in any one or more
instances shall be deemed to be or construed as a further or continuing
waiver of any such condition or breach or a waiver of any other condition
or breach of any other term of this Lease.
28.11 This Lease may be amended, modified, superseded or
canceled, and any of the terms and conditions hereof may be waived, only by
a written instrument duly executed by both parties hereto or, in the case
of a waiver, by the party making the waiver.
28.12 The validity, interpretation and legal effect of this
Lease shall be governed by, and the rights and liabilities of the parties
hereto shall be determined in
-45-
accordance with the law of the State of New York (without regard to
conflict of laws principles applied in such State).
28.13 No consent or approval given by Darien under this Lease
shall be effective unless given in writing by the General Manager of the
Theme Park or by the Chairman of the Board or President of Darien.
28.14 During the Term, Metropolitan and Darien shall execute
and deliver such other appropriate agreements, instruments and documents,
and take such other action, as shall be necessary or desirable to carry out
the intent and accomplish the purposes of this Lease.
28.15 (a) Any dispute, controversy or claim between the
parties arising out of or in connection with this Lease, any amendment
hereof or the performance hereof (collectively, the "Arbitrable Claims"),
shall be determined and settled by arbitration in New York, New York by a
panel of three arbitrators selected as provided below in accordance with
the rules of the American Arbitration Association. The Arbitrable Claims
shall be submitted to three arbitrators who are listed on the commercial
panel of the American Arbitration Association, one arbitrator being
selected by Darien, one arbitrator being selected by Metropolitan and the
third being selected by the two arbitrators so selected. In the event
that either party, within ten days after any notification of any demand for
arbitration hereunder, shall not have selected its arbitrator and given
notice thereof to the other, such arbitrator shall be selected by the
American Arbitration Association. The written decision of a majority of
such arbitrators shall be binding, final and conclusive upon the parties,
such decision may provide for equitable relief and judgment may be entered
on any such decision in any federal or state court
-46-
having jurisdiction. Unless the arbitrators determine otherwise, the party
against whom any such award is issued shall pay the expenses of the
arbitration, including, but not limited to, attorneys' fees and expenses
incurred by the prevailing party.
(b) No action at law or suit in equity based upon any
Arbitrable Claim shall be instituted by any party in any court except (i)
an action to compel arbitration pursuant to this Section; (ii) an action to
enforce the arbitration award rendered in accordance with this Section; or
(iii) an action brought in aid of arbitration pursuant to Article 75 of New
York's Civil Practice Law and Rules.
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IN WITNESS WHEREOF, the parties have duly executed this Lease as
of the date first above written.
DARIEN LAKE THEME PARK AND
CAMPING RESORT, INC.
By:
-------------------------------------
Xxxxxx X. Xxxxx, Chairman of the
Board
and Chief Executive Officer
THE METROPOLITAN ENTERTAINMENT CO., INC.
By:
-------------------------------------
Xxxx Xxxxx, Chief Executive Officer
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STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this ______ day of December, 1995, before me personally came
Xxxxxx X. Xxxxx, to me known, who being by me duly sworn, did depose and
say that he is the Chairman of the Board and Chief Executive Officer of
DARIEN LAKE THEME PARK AND CAMPING RESORT, INC., the corporation described
in and which executed the foregoing instrument, that he has been duly
authorized by the Board of Directors of said corporation to execute the
foregoing instrument on behalf of said corporation and that he executed the
foregoing instrument by order of said corporation for the purposes and uses
therein described.
-----------------------------------
Notary Public
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this ______ day of December, 1995, before me personally came Xxxx
Xxxxx, to me known, who being by me duly sworn, did depose and say that he
is the Chief Executive Officer of THE METROPOLITAN ENTERTAINMENT CO., INC.,
the corporation described in and which executed the foregoing instrument,
that he has been duly authorized by the Board of Directors of said
corporation to execute the foregoing instrument on behalf of said
corporation and that he executed the foregoing instrument by order of said
corporation for the purposes and uses therein described.
-----------------------------------
Notary Public
-49-
Exhibit A
I. Tensile Roof over permanent seating
II. Permanent bathrooms
III. Dressing rooms
IV. Support areas
V. Stage
VI. Sound delay system
Exhibit B
SETTLEMENT AGREEMENT
The Settlement Agreement, dated as of December 20, 1995, by and among
Metropolitan Entertainment Co., Inc., a New Jersey corporation
("Metropolitan"), Darien Lake Theme Park and Camping Resort, Inc., a New
York corporation ("Darien") and Funtime, Inc., an Ohio corporation
("Funtime").
--------------------
In November 1994, Metropolitan commenced an action (the "Action") in
the United States District Court for the Western District of New York (the
"Court") entitled Metropolitan Entertainment Co., Inc. v. Darien Lake Theme
---------------------------------------------------------
Park & Camping Resort, Inc. and Funtime, Inc.
---------------------------------------------
On the date hereof Metropolitan and Darien have entered into a Lease
Agreement (the "Lease Agreement") with respect to the Darien Lake
Performance Art Center.
In consideration of the execution and delivery of the Lease Agreement,
the parties hereto, represented by their separate respective counsel in the
Action, desire to settle amicably and resolve all claims (including
counterclaims) that have been or might have been asserted in the Action or
otherwise against one another, except for those expressly preserved in
Sections 3 and 4 hereof.
--------------------
NOW THEREFORE, the parties, intending to be legally bound, agree as
follows:
1. On the date hereof, Darien has paid to Metropolitan $50,000,
representing payment of outstanding amounts owed to Metropolitan under the
agreements between Metropolitan and Darien referred to in clause 14 of the
Complaint relating to the Action.
2. Effective as of the date of this Settlement Agreement, the
parties agree to discontinue the Action with prejudice. To this end, the
parties agree to cause a Stipulation of Discontinuance with respect to the
Action to be executed by their respective counsel on the date of this
Settlement Agreement and to be filed with the Clerk of the Court no later
than three (3) days following the date of this Settlement Agreement, so
that such stipulation may be "so ordered" by a judge of that Court.
3. Metropolitan hereby releases and discharges Darien, Funtime and
their respective officers, directors, employees, shareholders, affiliates,
agents, successors and assigns (collectively, the "Darien Releasees") from
and against all claims, actions, causes of action, claims for relief,
damages, liabilities, rights, accountings, reckonings, obligations, costs
and demands, known and unknown, of every nature and kind whatsoever,
against the Darien Releasees, which Metropolitan and its successors or
assigns ever had, now have or hereafter can, shall or may have, for, upon
or by reason of any matter, cause or thing whatsoever, from the beginning
of the world up to and
including the date hereof, excluding those arising out of the obligations
of any Darien Releasee under the Lease Agreement.
4. Each of Darien and Funtime hereby releases and discharges
Metropolitan and its officers, directors, employees, shareholders,
affiliates, agents, successors and assigns (collectively, the "Metropolitan
Releasees") from and against all claims, actions, causes of action, claims
for relief, damages, liabilities, rights, accountings, reckonings,
obligations, costs and demands, known and unknown, of every nature and kind
whatsoever, against the Metropolitan Releasees, which Darien, Funtime and
their respective successors or assigns ever had, now have or hereafter can,
shall or may have, for, upon or by reason of any matter, cause or thing
whatsoever, from the beginning of the world up to and including the date
hereof, excluding those arising out of the obligations of any Metropolitan
Releasee under the Lease Agreement.
5. All notices and other communications hereunder shall be given in
accordance with Section 27 of the Lease Agreement, provided that any notice
--------
to be sent to Funtime shall be sent to it in care of Darien at the
addresses indicated in the Lease Agreement.
6. Each party to this Settlement Agreement warrants and represents
to each other party to this Settlement Agreement as follows:
(a) Each party to this Settlement Agreement has made such
investigation, evaluation and analysis of the facts pertaining to the
settlement and this Settlement Agreement and the releases contained herein
and of all matters pertaining thereto as it deems necessary and
appropriate.
(b) A responsible officer of each party has read this Settlement
Agreement and understands the contents thereof.
(c) There has been no assignment, subrogation, encumbrance,
hypothecation, sale, conveyance, relinquishment, limitation upon, or any
other complete or partial transfer or disposition of all or any interest in
(nor does any third party assert or possess any lien against, any interest
in, or any right to) any claim, right, act, damage, demand, debt,
liability, accounting, reckoning, obligation, cost, right of action, claim
for relief or cause of action released or settled hereby.
(d) Each party is legally authorized and entitled to enter into
this Settlement Agreement, and this Settlement Agreement has been duly
authorized, executed and delivered by such party and constitutes legal,
valid, binding and enforceable obligations of such party.
7. Each party will promptly execute all further and additional
documents, and undertake such further acts, as shall be reasonable,
convenient, necessary or desirable to carry out the provisions of this
Settlement Agreement.
-2-
8. This Settlement Agreement shall be interpreted, enforced and
governed by the laws of the State of New York (without regard for the
conflict of laws principles applied by the courts of the State of New
York).
9. This Settlement Agreement may be executed in counterparts, and
each counterpart shall be deemed an original and, when taken together with
other signed counterparts, shall constitute one agreement which shall be
binding and effective as to all parties hereto.
10. This Settlement Agreement may not be amended orally, nor shall
any purported oral amendment or modification (even if accompanied by
partial or complete performance in accordance therewith) be of any legal
force or effect or constitute an amendment or modification of this
Settlement Agreement, but rather this Settlement Agreement may be amended
or modified only by an agreement in writing signed by all parties hereto.
11. Should any provision of this Settlement Agreement become legally
unenforceable, no other provision of this Settlement Agreement shall
thereby be affected, and this Settlement Agreement shall be construed as if
the Settlement Agreement had never included the unenforceable provision.
12. Each party shall bear its own attorneys' fees, costs of suit and
other expenses relating to the disputes referred to herein and to the
negotiation, preparation, execution, delivery and performance of this
Settlement Agreement.
-3-
IN WITNESS WHEREOF the parties have hereto signed their names as of
the ________ day of December, 1995.
THE METROPOLITAN ENTERTAINMENT
CO., INC.
By:
--------------------------------
Name:
Title:
DARIEN LAKE THEME PARK AND
CAMPING RESORT, INC.
By:
--------------------------------
Xxxxxx X. Xxxxx
Chairman of the Board
FUNTIME, INC.
By:
--------------------------------
Xxxxxx X. Xxxxx
Chairman of the Board
-4-
STATE OF _________________ )
) ss.:
COUNTY OF ______________ )
On this day of December, 1995, before me came
to me known and known to me to be the of
Metropolitan Entertainment Co., Inc. and who executed the foregoing
Settlement Agreement, and he duly acknowledged to me that he executed the
same and that he is authorized by Metropolitan Entertainment Co., Inc. to
execute the foregoing settlement Agreement on behalf of that corporation.
-----------------------------------
Notary Public
STATE OF _________________ )
) ss.:
COUNTY OF ______________ )
On this day of December, 1995, before me came Xxxxxx X. Xxxxx
to me known and known to me to be the Chairman of the Board of Darien Lake
Theme Park and Camping Resort, Inc. and who executed the foregoing
Settlement Agreement, and he duly acknowledged to me that he executed the
same and that he is authorized by Darien Lake Theme Park and Camping
Resort, Inc. to execute the foregoing settlement Agreement on behalf of
that corporation.
-----------------------------------
Notary Public
STATE OF _________________ )
) ss.:
COUNTY OF ______________ )
On this day of December, 1995, before me came Xxxxxx X. Xxxxx
to me known and known to me to be the Chairman of the Board of Funtime,
Inc. and who executed the foregoing Settlement Agreement, and he duly
acknowledged to me that he executed the same and that he is authorized by
Funtime, Inc. to execute the foregoing settlement Agreement on behalf of
that corporation.
-----------------------------------
Notary Public
-5-
