OPERATING AGREEMENT
OF
COUNTRY TONITE THEATRE, L.L.C.
THIS OPERATING AGREEMENT (the "Agreement") among CRC OF TENNESSEE, INC., a
Tennessee corporation ("CRCT"), and XXXXXXXX VENTURES, LLC, a Tennessee
limited liability company ("BV"; CRCT and BV are collectively referred to
herein as the "Members"), is made and entered into as of the 24 day of
September, 1996.
ARTICLE I
FORMATION
1.1 FORMATION. The Members hereby form a limited liability company pursuant
to the Tennessee Limited Liability Company Act (the "Act").
1.2 NAME. The name of the limited liability company shall be Country Tonite
Theatre, L.L.C. (the "Company").
1.3 ARTICLES OF ORGANIZATION. The Articles of Organization (the "Articles")
dated as of September 19, 1996, hereof are hereby adopted and ratified by the
Members. In the event of a conflict between the terms of this Agreement and
the terms of the Articles, the terms of the Articles shall prevail.
1.4 DEFINITIONS. Capitalized terms not otherwise defined herein shall have
the meaning set forth in the Act.
1.5 PLACE OF BUSINESS. The principal place of business of the Company shall
be at 0000 Xxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxx 00000, or at such other place(s)
as all Members shall from time to time select.
1.6 PERCENTAGE INTERESTS. The Percentage Interest of each Member shall be
as follows:
BV 40%
CRCT 60%
The term "Percentage Interest" with respect to each Member shall mean the
percentage interest of such partner in the profits, losses, distributions,
capital, and assets of the Company. The term "Membership Interest" means a
Member's entire interest in the Company, which when expressed as a percentage
of all Membership Interests in the Company shall be equal to such Member's
Percentage Interest. Membership Interests shall not be altered by any
subsequent changes in the capital account(s) of any Member, and
notwithstanding any other provision of this Agreement to the
contrary, all distributions (except as specifically provided herein) shall be
based upon each member's Percentage Interest and not the relative capital
accounts at any given time.
ARTICLE II
PURPOSE AND POWERS
2.1 PURPOSE. The purpose of the Company is to engage in the business of
contracting for, producing, managing, and marketing a country music show and
related activities to be presented at the music theater building owned by X.
XxxXxxxxx Xxxxxxxx, M.D. located at 0000 Xxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxx
00000.
2.2 POWERS. In furtherance of the foregoing purpose, the Company shall have
the full power and authority to conduct its business as provided by the Act
and applicable law.
2.3 INITIAL CONTRACTS, COMMENCEMENT OF OPERATIONS. The Company shall enter
into a certain Lease Agreement with X. XxXxxxxx Xxxxxxxx, M.D., a copy of
which is attached hereto as EXHIBIT 1 (the "Lease"), to lease the theater
location for the proposed country music show referred to above, and shall
enter into a contract with Country Tonite Enterprises ("CTE"), an affiliate
of CRCT, to acquire the performance artists and proprietary interests
required to present the show, a copy of which is attached hereto as EXHIBIT 2
(the "Contract"). The Members agree to use their good faith best efforts to
cause the Company to initiate 1997 marketing efforts in September 1996; to
assume pre-opening operation of the theater on or before January 15, 1997;
and to open the theater to the public on such date as CRCT deems appropriate
in the best interests of the Company, which date is expected to be in the
first half of March, 1997.
2.4 ASSUMPTION OF EQUIPMENT LEASES. The Company shall also assume and
acquire all interest in certain leases for equipment as provided in Section
15 of the Lease.
ARTICLE III
CAPITAL
3.1 CAPITAL ACCOUNTS. A capital account shall be established on the books
of the Company for each Member. Each such capital account shall be credited
with the amount of the respective Member's capital contributions as and when
they are made and with the respective Member's share of Company income,
gains, and profits allocated in accordance with the Member's proportionate
Percentage Interest. Each Member's capital account shall be debited with the
Member's respective share of losses and distributions in accordance with the
Member's proportionate Percentage Interest. Such capital accounts shall be
maintained in accordance with the requirements of Section 704 of the Internal
Revenue Code of 1986, as amended (the "IRC"), and the regulations promulgated
thereunder.
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3.2 CAPITAL CONTRIBUTIONS.
(a) As their initial capital contributions, CRCT shall contribute $300,000
to the Company and BV shall contribute $200,000 to the Company, the total of
which capital contributions shall be used to establish an operating account
for the use of the Company in facilitating the operations of the Company,
including the pre-opening activities, management, and marketing of the
theater. Such capital contributions shall be made in accordance with and at
the times provided in the promissory notes of CRCT and BV to the Company
dated as of the date of this Agreement.
(b) By January 1, 1997, each of the Members hereby agree to arrange for
and guarantee a line of credit for the use and benefit of the Company, if
needed, in an amount up to $300,000 with regard to CRCT and $200,000 with
regard to BV. If it is necessary for the Company to use such credit lines,
the respective credit lines of both Members shall be drawn upon pro rata in
proportion to their Percentage Interests and simultaneously to meet such need.
3.3 ADDITIONAL CAPITAL CONTRIBUTIONS. Neither Member shall be required to
make any further capital contributions or loans to the Company except as
permitted herein, and any such contributions or loans shall be subject to the
prior written approval of all Members except as permitted herein.
3.4 NO RIGHT TO WITHDRAW CAPITAL. No Member shall have the right to demand
the return of, or otherwise withdraw his capital or to receive any specific
property of the Company, except as specifically provided in this Agreement.
No Member shall have the right to demand and receive property other than cash
in return for his capital. Provided, however, BV shall have an option to
acquire certain equipment related to the stone sign in accordance with
paragraph 11 of the Lease, and BV may elect to receive such equipment towards
any capital or other distribution to which BV is otherwise entitled.
3.5 RETURN OF CAPITAL. All capital contributions and loans made by the
Members shall be repaid as provided in ARTICLE XI hereof. Other than as
stated in ARTICLE XI, no interest shall be paid on capital contributions or
on balances in capital accounts.
ARTICLE IV
ALLOCATION OF PROFITS AND LOSSES
4.1 ALLOCATIONS OF PROFITS AND LOSSES.
(a) All Company net profits and net losses, and each item of income and
expense related thereto, from whatever source derived (except such items with
respect to property contributed to the Company by a Member, which shall be
allocated pursuant to IRC Section 704(c) and the regulations thereunder),
shall be allocated to the Members pro rata based upon their respective
Percentage Interests as set forth in SECTION 1.6 above.
(b) Notwithstanding the above or any other term or condition contained in
this Agreement to the contrary, the capital accounts of the Members shall, in
all events, be maintained
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in accordance with IRC Section 704(b) and the regulations promulgated
thereunder, now existing or hereafter enacted, including, without limitation,
the regulations set forth in Treasury Regulations Section 1.704-1(b)(20(iv)
as well as the requirements set forth in IRC Section 704(c) and regulations
promulgated thereunder, as to the allocation of the Company's income, loss,
gain, deductions and other items to be allocated between the Members.
4.2 REVENUES CALCULATED IN DETERMINING NET PROFITS. In calculating net
profits, all revenues of the Company from ticket sales, gift shop sales,
concessions sales, sale of videos, tapes and compact discs, entertainer's
sundries for resale, and any other revenues from theater operations shall be
included, provided, however, that revenues shall not include sales and use
taxes, insurance proceeds relating to the assets of the Company, promotional
non-cash revenues (such as complimentary tickets) and uncollectible
receivables. Pre-paid revenues and costs associated with the same shall be
acknowledged by the Company when earned.
ARTICLE V
MANAGEMENT
5.1 MANAGEMENT BY MEMBERS. The Company shall be a "member-managed" limited
liability company as such term is defined in the Act. The business and
affairs of the Company shall be managed by the Members. All powers of the
Company as a limited liability company under the Act shall be exercised by or
under the direction of the Members.
5.2 MANAGEMENT OF DAY-TO-DAY OPERATIONS. The Members hereby agree, in the
mutual exercise of their right of control, that CRCT shall have the
responsibility for day-to-day management of the Company, including
responsibility for the operation, management and marketing of the theater and
for paying from the Company's assets all sales and use taxes, payroll taxes,
state and federal income taxes, worker's compensation insurance, liability
and business interruption insurance, and all other operating expenses arising
in the course of the Company's business. CRCT acknowledges that its
affiliate, CTE, is a party to the contract with the Company attached hereto
as EXHIBIT 2, and CRCT shall arrange for the use (but not the ownership) by
the Company of the "Country Tonite Show" and all proprietary and intellectual
material associated with the same. Furthermore, CRCT covenants and agrees
with BV as follows:
(a) CRCT agrees to use its best efforts to operate the Company and manage
the theater in a profitable manner through the use of its expertise and
experience in the music theater industry.
(b) CRCT will operate the Company and the theater in substantially the
same manner as it operates other theaters presenting the "Country Tonite"
concept and shall cause CTE, subject to the limitations of the Contract, to
present such number of shows as will maximize the net profit of the Company.
(c) CRCT shall use its best efforts to operate the Company and make
Company expenditures in each fiscal year in accordance with the budget with
respect to such fiscal year provided to the Members pursuant to SECTION 8.3
below.
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(d) CRCT shall at all times operate in a manner with respect to the
Company and its assets and property which is for the sole benefit of the
Company, and shall refrain from any activity contrary to the best interest of
the Company, including among other things, the utilization of Company funds
or assets for the sole benefit of CRCT or its affiliates;
(e) (i) CRCT shall not make or approve any transfer of any type of
property from the Company to CRCT or any of its affiliates at other than fair
market value and only after the prior written consent of BV; (ii) CRCT shall
not permit the Company to enter into a loan, lease, purchase, sale or
contract with Casino Resource Corporation ("CRC") or any subsidiary, parent
or related person or entity of CRC, other than the Contract, without the
written consent of BV; (iii) CRCT shall not permit the Company to make any
payment or loan for the benefit of CRC or any subsidiary, parent or related
person or entity of CRC directly or indirectly without BV's written consent
other than the Contract; or (iv) CRCT shall not permit the Company to modify,
alter or amend the Contract without BV's written consent; provided that
notwithstanding the foregoing, CRCT may in the course of managing the Company
make payments to CTE to the extent permitted in the Contract;
(f) no loans may be made by the Company to CRCT or any of its affiliates
nor is CRCT authorized to incur indebtedness, nonrecourse or otherwise, on
behalf of the Company except as otherwise permitted herein; and
(g) advance payments to CRCT or any of its affiliates are prohibited.
5.3 NO MUTUAL AGENCY OF THE MEMBERS. Neither Member is authorized or
empowered to obligate the other, or to incur any costs on behalf of the
other, except that CRCT may obligate the Company and incur costs on behalf of
the Company as necessary to operate the theater. The employees or agents of a
Member are not, and shall not be considered as, the employees or agents of
the other Member.
5.4 ACTIONS REQUIRING THE APPROVAL OF ALL OF THE MEMBERS. Unless authorized
by all of the Members, no single Member or group of less than all of the
Members shall have authority in the name of or on behalf of the Company to:
(a) dispose of the goodwill of all the business;
(b) do any other act which would make it impossible to carry on the
ordinary business of the Company;
(c) confess a judgment on behalf of the Company;
(d) submit a claim or liability to arbitration or reference;
(e) sell, lease, exchange or otherwise dispose of any of the assets of the
Company or enter into any agreement to do the same, except for sales of
assets in the ordinary course of business in an amount less than 10% of the
Company's net assets (as shown on the Company's balance sheet as of the end
of its most recently completed fiscal year) in any single transaction or
series of related transactions;
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(f) purchase, lease or otherwise acquire any assets, or enter into any
agreement to do the same, except for the acquisitions of assets in the
ordinary course of business in an amount less than 10% of the Company's net
assets (as shown on the Company's balance sheet as of the end of its most
recently completed fiscal year) in any single transaction or series of
related transactions;
(g) borrow money or incur indebtedness or other liabilities or pledge the
assets of the Company to secure such borrowing, except that if at any time
the amounts available from the initial capital contributions of $500,000 and
the lines of credit described in SECTION 3.2 have been expended, the Members
may, by unanimous consent, make loans to the Company in increments of
$200,000, with CRCT contributing $120,000 and BV contributing $80,000 per
increment. If CRCT votes to make such loans and BV votes not to, then CRCT
may at its option make the entire additional $200,000 loan. If BV votes to
make such loan and CRCT votes not to, then BV may at its option make the
entire additional $200,000 loan. If one of the Members, but not both, makes
the additional $200,000 loan, the Member making the loan shall be entitled to
interest on such loan at the prime rate of interest in effect from time to
time as published in the WALL STREET JOURNAL. The principal and interest on
any such loan(s) shall be payable as provided in SECTION 11(d) hereof. Such
loan shall be unsecured and nonrecourse as to the other Member(s).
(h) declare or make any distribution to Members except pursuant to ARTICLE
XI of this Agreement;
(i) enter into or agree to enter into any other transaction outside of the
ordinary course of business of the Company;
(j) take any other action that would require the consent of all of the
Members pursuant to this Agreement or the Articles; or
(k) amend, modify, or alter this Agreement.
5.5 LIMITATION ON LIABILITY. A Member shall not be liable for any action
taken as a Member, or any failure to take action as a Member, except to the
extent that such Member's conduct fails to comply with its obligations under
this Agreement or the standards set forth in Section 00-000-000 of the Act or
to the extent that such Member may be liable for wrongful distributions under
Section 00-000-000 of the Act no later than three years after the
distribution.
5.6 COMPENSATION AND REIMBURSEMENT. Except as specifically provided herein,
no Member nor any affiliate of any Member shall have any right to
compensation for any services performed on behalf of the Company except the
following: (a) payments of the Company to CTE under the Contract; (b)
documented reasonable expenses of officers of CRC and its affiliates, which
may include travel, meals and lodging expenses, incurred directly in
connection with the business of the Company, but not wages or compensation;
(c) reasonable wages and documented reasonable expenses of non-officer
employees of CRC and its affiliates (including employees in the production
staff, marketing department, reservations management, giftware purchasing and
other operating personnel who will hire and train the staff at the Theater)
incurred while such employees are in Pigeon Forge, Tennessee for a purpose
directly related to the business of the Company and a proportionate share of
reasonable wages and documented reasonable expenses for such persons when
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attending trade shows or sales meetings that directly benefit the Company.
Certain persons may be employees of both the Company or CRCT and CRC or an
affiliate of CRC if it is cost efficient to do so and such employees' duties
relate directly to the business of the Company, and in such event such
employees' wages shall be allocated proportionately to the Company based upon
the percentage of time that such employees' devote to the business of the
Company. CRCT shall report to BV in its monthly operating statements the
rate, amount and purpose of all wages paid and expenses reimbursed pursuant
to this section. Any wages charged to the Company shall be reasonable and at
a rate not greater than the rate paid by CRC or its affiliates. CRCT shall
cause any such employees to account for all time and expenses charged to the
Company, and such records and receipts shall be provided to BV at its
request. All professional entertainment staff, as described in the Contract,
including the producer, director, performers and choreographers of CTE's
production, shall be the entire financial responsibility of CTE.
5.7 MANAGERS. The Company shall at all times have at least two officers,
those being the Chief Manager and the Secretary. The Company may have
additional officers who shall perform such duties as may be prescribed by the
Members upon their election. Any other officer elected by the Members need
not be a Member. The initial Chief Manager of the Company shall be Xxxx X.
Xxxxxx and the initial Secretary of the Company shall be Xxxxxx Xxxxxxx. The
Company, and each of the Members, will use their best efforts to place Xx.
Xxx Xxxxxxxx in a suitable position of employment with the Company, if he so
desires.
5.8 DUTIES OF THE PERSON HOLDING THE OFFICE OF CHIEF MANAGER. The Chief
Manager shall have the duty to manage the day-to-day operations of the
Company and to perform other duties customarily performed by a chief
executive officer.
5.9 DUTIES OF THE PERSON HOLDING THE OFFICE OF SECRETARY. The Secretary
shall have the duty to maintain the records of all proceedings of the Members
and to perform other duties customarily performed by a secretary.
5.10 ELECTION OF MANAGERS. All Managers, including the Chief Manager and
the Secretary, shall be elected by the Members.
5.11 COMPENSATION OF OFFICERS. No officer, manager, or any Member of the
Company or any affiliate shall receive any compensation from the Company
without the prior approval of all Members except as provided herein.
5.12 REMOVAL AND RESIGNATION OF OFFICERS. The Members may remove any
officer, including the Chief Manager and the Secretary, with or without
cause. The Members may eliminate any officer position other than that of the
Chief Manager and the Secretary. Any officer may resign upon thirty (30) days
prior written notice to the Members. Upon the death, resignation or removal
of the Chief Manager, the Members shall immediately vote to appoint another
Chief Manager. Upon the death, resignation or removal of the Secretary, the
Members shall immediately vote to appoint a substitute Secretary.
5.13 NO EXCLUSIVE DUTY; OTHER ACTIVITIES.
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(a) The Members shall devote such time and attention to the business and
affairs of the Company as may be necessary for the proper performance of
their duties and the conduct of the business and affairs of the Company. It
is recognized that each of the Members is otherwise engaged in commercial and
business activities which require a substantial part of their time,
expertise, talent and efforts.
(b) The Members may engage and hold interests in other business ventures
of every kind and description for their own account including, but without
limitation, ventures such as those undertaken by the Company. No Member shall
incur any liability to the other Member or the Company as a result of
engaging in any other business or venture. Neither the Company nor either of
the Members shall have any right, by virtue of this Agreement, in and to any
of such independent business ventures or the income or profits derived
therefrom. Notwithstanding the foregoing, during the term of this Agreement,
neither Member shall compete with the Company, directly or indirectly, within
Xxxxxx County, Tennessee or any adjoining county. Operation of a restaurant
or hotel facility (that does not have a show which charges admission) shall
not be considered to be competing with the Company.
ARTICLE VI
MEMBERS AND VOTING RIGHTS
6.1 MEMBERSHIP VOTING POWER. Each Member shall have voting power equal to
such Member's Percentage Interest. At any meeting of the Members, each Member
present (in person or by proxy) and entitled to vote shall have a number of
votes equal to such Member's Percentage Interest. At any meeting of the
Members at which a quorum is present (in person or by proxy), a majority of
the Membership voting power present (in person or by proxy) at the time the
vote is taken is required to take action on a matter unless a vote of greater
proportion is otherwise required by this Agreement, the Articles or the Act.
6.2 MEETINGS. Meetings of all Members may be called by the Chief Manager,
Secretary or any Member by mailing notice to all Members no fewer than ten
(10) days nor more than two (2) months before the meeting date, stating the
purpose or purposes of such meeting. Any such meetings shall be held at the
principal place of business of the Company or such other place as may be
designated in the notice. When any notice is required to be given to any
Member, a waiver thereof in writing signed by the person entitled to such
notice, whether before, at, or after the time stated therein, shall be
equivalent to the giving of such notice. Attendance by a Member at a meeting
is a waiver of notice of such meeting, except if the Member objects at the
beginning of the meeting to the transaction of business because the meeting
is not lawfully called or convened and does not otherwise participate in the
consideration of any matter at the meeting. A meeting may take place by
telephone conference call or any other form of electronic communication
through which the Members may simultaneously hear each other. Such meeting
shall be deemed to be held at the principal executive office of the Company
or at the place properly named in the notice calling the meeting.
6.3 QUORUM REQUIREMENTS FOR MEETINGS. The Members present (in person or by
proxy) and holding a majority of the Membership voting power at any meeting
shall constitute a quorum for the transaction of business. Once a Member is
represented at any meeting, such Member is
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deemed to be present for the remainder of that meeting and for any
adjournment. A meeting may be adjourned, and notice of an adjourned meeting
is not necessary if the date, time and place to which the meeting is
adjourned are announced at the meeting at which the adjournment is taken.
6.4 ACTION WITHOUT A MEETING. Action required or permitted to be taken at a
meeting of the Members may be taken without a meeting if the action is
evidenced by written consents describing the action taken, signed by all
Members and delivered to the Secretary of the Company for filing with the
Company records.
6.5 ADMISSION OF NEW MEMBERS. No other person shall be made a Member
without the written approval of all of the Members.
ARTICLE VII
INDEMNIFICATION
Except for acts of malfeasance, gross negligence or misrepresentation, the
Company shall indemnify all Responsible Persons (as that term is defined in
Section 48-243-101(7) of the Act) to the fullest extent of the Act as now in
effect or hereafter amended; provided that any indemnification under this
Article shall be paid only out of and to the extent of Company assets.
ARTICLE VIII
FISCAL MATTERS
8.1 BOOKS AND RECORDS. At all times during the existence of the Company,
CRCT shall keep, or cause to be kept, full and true books of account on a
fiscal year basis (such fiscal year ending on September 30 of each year) in
which all transactions of the Company shall be entered fully and accurately,
using generally accepted accounting principles ("GAAP"), consistently
applied. As soon as practical after the end of each fiscal year of the
Company (but in no event later than sixty (60) days after the end of such
fiscal year), a general accounting and review shall be taken and made by an
independent accounting firm selected by CRCT, covering the assets,
properties, liabilities, and net worth of the Company, and its dealings,
transactions, and operations during the preceding fiscal year, and a copy of
such accountant's report shall be promptly provided to both Members. Such
books and records shall contain sufficient. information to permit calculation
of the amounts distributable to the Members pursuant to this Agreement.
8.2 RIGHT TO INSPECTION. Each Member shall have the right to examine and
inspect, at any and all reasonable times, the books, records, and accounts of
the Company, and the Company shall provide monthly operating statements to
both Members, which shall show revenues and expenditures of the Company for
such month within twenty (20) days after the end of such month. BV shall have
the right to have the books and records audited by an independent certified
public accountant with the cost of such audit being an expense of BV unless
such audit reveals appropriate adjustments in excess of $5,000 in BV's favor,
in which case, CRCT shall be solely responsible for such costs, including
reasonable travel expenses, or for reimbursing BV therefore. Such books of
account, together with this Agreement and any amendments hereto, shall at all
times be maintained
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at the principal office of the Company or CRCT and shall be open to
reasonable inspection and examination by the Members or their duly authorized
representatives.
8.3 REPORTS TO BV. Each of the following reports shall be prepared by CRCT
at the Company's expense, and shall be delivered to the Members:
(a) at least thirty (30) days prior to the commencement of each fiscal
year, an annual operating budget for such fiscal year;
(b) within forty-five (45) days after the end of each fiscal quarter, an
operating statement showing revenues and expenditures of the Company for such
fiscal quarter;
(c) within one hundred twenty (120) days after the end of each fiscal
year, an annual report of the activities of the Company, including a balance
sheet, income statement and a statement of cash flow; and
(d) within ninety (90) days after the close of the taxable year or period
of the Company for which such return is prepared, income tax returns for the
Company and a report indicating each respective Member's share of the net
profits or losses and capital gains or losses and other items required by
federal tax law to be separately allocated to each Member, all as defined and
reflected on said Company income tax return.
It is a acknowledged and understood that the Company, through CRCT, will be
sharing certain confidential financial, organizational, and administrative
records, trade secrets, and other materials pursuant to this SECTION 8.3.
During the term of this Agreement, each Member agrees to keep all such
information and materials in the strictest confidence and shall refrain from
disclosing such information or any portion thereof to any third party except
to any lender or professional advisor to the Company or either Member.
8.4 COMMENT PERIOD REGARDING BUDGET. After reviewing the budget provided
pursuant to SECTION 8.3(a), BV shall have twenty (20) days to provide CRCT
with any objections or comments to such budget or individual line entries
which are a part of such budget. CRCT must either revise the budget to
correspond with BV's objections and comments or provide BV with a written
response to such objections and comments within five (5) days of CRCT's
receipt thereof. After providing such response, CRCT may adopt such budget as
the budget for the Company.
8.5 FISCAL YEAR. The fiscal year of the Company shall end on September 30
of each year.
8.6 TAX STATUS. Solely for purposes of the United States federal income tax
laws, each of the Members hereby recognizes that the Company will be subject
to all provisions of Subchapter K of Chapter 1 of Subtitle A of the IRC.
However, the filing of U.S. Partnership Returns of Income shall not be
construed to extend the purposes of the Company or expand the obligations of
liabilities of the Members.
8.7 ACCOUNTING SERVICES. The selection of an accountant or accounting firm
for the purposes of preparation of income tax returns, financial statements,
or similar financial services to
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the Company shall require the mutual agreement of the Members. Until further
agreement, the Members shall use the services of B.D.O. Xxxxxxx.
8.8 TAX MATTERS MEMBER. CRCT shall be the initial Tax Matters Member
("TMM"). The TMM shall promptly give notice to all Members of any
administrative or judicial proceeding pending before the Internal Revenue
Service involving any Company item and the progress of any such proceeding.
The TMM shall have all the powers provided to a tax matters partner in
Sections 6221 through 6233 of the IRC, including the specific power to extend
the statute of limitations with respect to any matter which is attributable
to any Company item or affecting any item pending before the Internal Revenue
Service and to select the forum to litigate any tax issue or liability
arising from Company items. The TMM may resign its position by giving thirty
(30) days written notice to all Members, whereupon the Members shall promptly
vote to designate a new TMM. The Members may, without cause, remove the TMM,
whereupon the Members shall promptly vote to designate a new TMM. The TMM
shall be entitled to reimbursement for any and all reason able expenses
incurred with respect to any administrative and/or judicial proceedings
affecting the Company.
8.9 ELECTIONS. All elections required or permitted to be made by the
Company under any applicable tax laws shall be made by Members as directed by
the Company's auditors.
ARTICLE IX
TERMINATION OF MEMBERSHIP INTEREST
9.1 TERMINATION OF INTEREST. A Member's Membership in the Company shall
terminate upon the:
(a) withdrawal of the Member;
(b) acquisition of the Member's complete Membership Interest by the
Company;
(c) assignment of the Member's Governance Rights which leaves the Member
with no Governance Rights.
(d) bankruptcy of the Member;
(e) dissolution of the Member; or
(f) a merger in which the Company is not the surviving organization.
9.2 WITHDRAWAL OF A MEMBER. Notwithstanding the foregoing, a Member shall
not have the right to withdraw from the Company, to assign its Governance
Rights except as provided in ARTICLE X hereof, to dissolve, or to otherwise
terminate its Membership Interest by any means, including by declaring or
allowing itself to be declared bankrupt, other than in the manner provided in
SECTION 11.4 and 12.2(B) and (D) hereof, though it does have the power under
the Act to terminate its membership by withdrawing at any time.
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9.3 GENERAL EFFECT OF TERMINATION OF INTEREST. The termination of a
Member's interest causes dissolution and termination of the Company unless,
in cases where the termination is wrongful, the existence and business of the
Company is continued by the unanimous consent of the remaining Members
provided that such consent is obtained no later than ninety (90) days after
the termination of the continued membership. If the termination of a Member's
interest is not wrongful, the Company shall be dissolved, terminated and
wound up in accordance with Article XII hereof.
9.4 EFFECT OF TERMINATION OF MEMBERSHIP ON GOVERNANCE RIGHTS. If for any
reason the Membership Interest of a Member is terminated, unless such
termination is wrongful under this Agreement at, then:
(a) if the business of the Company is continued pursuant to SECTION 12.2,
the Member whose Membership is terminated loses any and all Governance Rights
and will be considered merely an assignee of the Financial Rights owned
before the termination; and
(b) if the business of the Company is not continued pursuant to SECTION
12.2, the Member whose Membership terminated retains all Governance Rights
owned before such termination and may exercise these through the dissolution
and winding up of the Company.
9.5 ADDITIONAL EFFECTS IF TERMINATION OF MEMBERSHIP IS WRONGFUL. If a
Member withdraws in violation of this Agreement, in particular SECTION 9.2
above, then such withdrawal has the following additional effects:
(a) The Member who has wrongfully withdrawn forfeits Governance Rights in
the winding up and termination process or in the continued business.
(b) The Member who has wrongfully withdrawn is liable to all the other
Members and to the Company to the extent damaged, including the loss of
foregone profits, by the wrongful withdrawal.
(c) In lieu of establishing damages for lost profits, those Members who
have not wrongfully withdrawn may, by the affirmative vote of all of such
Members, elect to reduce the value of the interest of the Member who
wrongfully withdrew by the goodwill and going concern value attributable to
such interest.
(d) If the existence and business of the Company is not continued, the
Member that wrongfully Withdrew is entitled to that Member's distribution
provided for with respect to dissolution and termination of the Company under
ARTICLE XII hereof, provided that the Company may offset against such
distribution the amount of damages caused to the Company, including the loss
of foregone profits caused by the wrongful withdrawal or, if the Members who
have not wrongfully withdrawn have made the election contemplated by
subsection (c) above, the Company may reduce such distribution by the
goodwill and going concern value attributable to the Member who has
wrongfully withdrawn.
12
(e) If the existence and business of the Company is continued, the Member
who has wrongfully withdrawn has the right against the Company to have paid
in cash, at the option of the Company, (i) the value of such Member's
Membership Interest less any damages caused to the other Members and the
Company, or (ii) the value of the Membership Interest less good will and
going concern value. The value of such Member's Membership Interest shall be
an amount equal to the fair market value of the Company multiplied by the
withdrawing Member's Percentage Interest, and such amount shall be paid to
the withdrawing Member in equal quarterly installments over a period of three
(3) years. The portion of such price remaining unpaid shall accrue interest
at the prime rate published in THE WALL STREET JOURNAL. Interest accrued
since the previous payment date shall be paid with each quarterly installment
payment.
ARTICLE X
ASSIGNMENT OF MEMBERSHIP INTEREST
10.1 RESTRICTIONS ON ASSIGNMENT. No Member shall assign its Membership
Interest, Financial Rights, or Governance Rights except as expressly
permitted in this Article.
10.2 DEFINITION OF "ASSIGNMENT". For purposes of this Article, the words
"assign" or "assignment" shall include any transfer, alienation, sale,
assignment, pledge or other encumbrance or other disposition of a Membership
Interest, Financial Rights, or Governance Rights, whether voluntarily or by
operation of law.
10.3 PERMITTED ASSIGNMENTS. The following assignments are permitted under
this Article: (a) any Member may transfer all or any part of its Membership
Interest in the Company to or for the benefit of the other Member of the
Company, (b) CRCT may convey all or a portion of its interest to Casino
Resource Corporation or any entity that acquires a majority of the stock or
substantially all of the assets of Casino Resource Corporation or any entity
controlled by either of the foregoing or (c) BV may transfer all or any
portion of its Membership Interest to any of the Members of BV, any family
member of X. XxxXxxxxx Xxxxxxxx, to his personal representative, to a trust
created by him, or to any entity which he controls directly or indirectly. BV
may also pledge its interest as collateral or security for a loan. A
conveyance of a portion of CRCT's Membership Interest pursuant to this
SECTION 10.3(B) above may be for any purpose, including, but not limited to,
the creation of an additional member of the Company immediately prior to an
acquisition by CRCT of the Membership Interest of BV or the wrongful
termination of the Membership Interest of BV pursuant to ARTICLE IX hereof in
order to preserve any tax or organizational benefits belonging to the Company
and its members. Transfers permitted under this SECTION 10.3 are subject to
the requirement that such transferee signs this Agreement and agrees to be
bound by the terms hereof.
10.4 OTHER TRANSFERS - RIGHT OF FIRST REFUSAL. Except as provided in
SECTION 10.3 above, in the event that a Member desires to assign, directly or
indirectly (during life or at death), any of its Membership Interest, whether
now owned or hereafter acquired, the transferring Member must first offer to
sell the Membership Interest involved to the other Member in accordance with
the following provisions:
13
(a) RIGHT OF FIRST REFUSAL. The transferring Member shall first offer to
sell the Membership interest to the other Member for an amount stated in the
offer to sell, and the other Member shall have the right to accept such offer
under the terms provided in this section. The right to accept such offer,
which shall constitute the right of first refusal referenced in this section,
shall be exercisable at any time prior to the expiration of thirty (30) days
following the receipt of the offer and the purchase price shall be paid
either in cash at the closing or in quarterly installment payments as
provided below.
(b) MANNER OF EXERCISE OF RIGHT OF FIRST REFUSAL. The right of first
refusal described in this SECTION 10.5 shall be exercised by mailing by
certified mail written acceptance by the purchaser of the offer to the
transferring Member within the particular period involved.
(c) PAYMENT OF PURCHASE PRICE. Unless the Members agree otherwise, payment
shall be made in twelve (12) equal, successive quarterly installments
containing principal and interest on the unpaid balance computed at a rate
equal to the Applicable Federal Rate with respect to such installment
obligation under Section 1274(d) of the IRC at the time the right of first
refusal is exercised, said indebtedness to be evidenced by a promissory note
signed by the purchaser and secured by either a mortgage or deed of trust
lien on all of the Company's real property (except where the creation of such
lien or mortgage would result in the acceleration of Company indebtedness
secured by prior mortgages or deeds of trust on such properties) or by a lien
on all of the Membership Interests in the Company owned by the purchasing
Member, as the case may be. The purchaser shall have the right to prepay the
whole or any part of the amount that it owes to the transferring Member at
any time or times, and no penalty for the early payment will be imposed.
(d) CLOSING. The purchase of any Membership interest pursuant to the
exercise of the right of first refusal described in this SECTION 10.4 shall
be closed within thirty (30) days after expiration of the 30 day period
described in SECTIONS 1O.4(A) above.
(e) PERMITTED TRANSFERS IF RIGHT FIRST REFUSAL NOT EXERCISED. In the event
the non-transferring Member elects not to purchase the Membership Interest
offered by the transferring Member, then the transferring Member may transfer
the Membership interest to such transferees and on such terms as he or she
sees fit; provided that the transfer must be made only at a price and on
terms which are not more favorable to the transferee than the price and terms
at which the Membership Interest was offered to the non-transferring Member.
The transfer shall constitute only an assignment of the transferring Member's
Financial Rights in the Company unless: (i) the admission of the transferee
as a Member is approved by the other Member; and (ii) the transferee signs
this Agreement and agrees to be bound by the terms hereof.
10.5 VALUATION OF PROPERTIES. When it is necessary under this Article to
determine the fair market value of any properties in which the Company has an
interest, whether directly or indirectly, the provisions of this Section
shall be controlling. In the event the parties are unable to agree upon the
fair market values of such properties, such values shall be as determined by
a competent appraiser mutually selected by the Members. The appraised value
so determined shall be deemed to be the fair market value of the properties
in question. All costs incurred shall be treated as an expense of the Company
and shall be borne by the Members according to their respective Percentage
Interests.
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ARTICLE XI
DISTRIBUTION OF CASH FLOW;
RIGHT OF MEMBERS TO TERMINATE ON FAILURE OF
COMPANY TO PAY CERTAIN AMOUNTS
11.1 DISTRIBUTION OF CASH FLOW. Subject to the payment of the expenses of
the Company, including payments to CTE under the Contract and to the Lessor
under the Lease, and retention of any amount of cash operating reserves which
CRCT reasonably deems necessary to be retained for tie benefit of the
Company, all cash flow from the operations of the Company shall be allocated
and paid to the Members in the following order of priority:
(a) REPAYMENT OF LINE OF CREDIT OBLIGATIONS. To reduce the principal
amount of the lines of credit described in SECTION 3.2(B) above, unless CRCT
determines that such reduction is rot in the best interests of the Company.
(b) PAYMENT OF INTEREST ON INITIAL CAPITAL CONTRIBUTIONS. To each of the
Members, interest on their initial capital contributions made under SECTION
3.2(A) above, accruing from the date of this Agreement, at the prime rate of
interest in effect from time to time as published in the WALL STREET JOURNAL,
payable quarterly, in arrears. If cash flow is not available to the Company
to make a payment or payments in accordance with the above schedule, such
unpaid amounts shall be paid as funds become available and prior to the
payment of items subsequently listed in this SECTION 11.1.
(c) RETURN OF INITIAL CAPITAL CONTRIBUTIONS. To each of the Members, their
initial capital contributions made under SECTION 3.2(A) above.
(d) REPAYMENT OF LOANS UNDER SECTION 5.4(G). To pay accrued interest and
principal due under any loans made to the Company by a Member or Members
pursuant to SECTION 5.4(G) above.
(e) DISTRIBUTION OF REMAINDER TO MEMBERS. To the Members in proportion to
their Percentage Interests; provided, however, that any rent received by BV
under the Lease which is in excess of $30,000 per month shall be deemed to be
a distribution of cash flow under this Agreement (except for purposes of
Section 11.2 hereof) and any distributions to the Members under this Section
11.1(e) shall be adjusted to reflect the treatment of such rent payments as
distributions of cash flow.
In any event, and notwithstanding any other provision of this Article to
the contrary, the Company shall distribute cash to each Member in an amount
equal to such Member's distributive share of the Company's taxable income (as
shown on IRS Form 1065) multiplied by the highest federal income tax rate
applicable to such income as received by the Company or any of the Members.
For example, if BV's distributive share of the Company's taxable income for
1997 is $40,000.00, and the highest federal income tax rate is 39.6% (35% for
CRCT and 39.6% for the owners of BV), then the Company shall distribute
$15,840 to BV (40,000 x 39.6 % = $15,840). Such amount shall be payable on or
before March 15 of each year based on the income for the preceding fiscal
year.
15
11.2 RIGHT OF BV TO TERMINATE.
(a) Notwithstanding any provision herein to the contrary, BV shall have
the option, in its sole discretion, to terminate the Company upon written
notice to CRCT, between January 15, 1999 and January 25, 1999, if the
distributions of cash flow with respect to the period ending December 31,
1998 have not resulted in BV receiving the following on or before January 15,
1999: (i) return of $100,000 of BV's initial capital contribution of $200,000
together with all accrued interest on BV's entire initial capital
contribution, (ii) full and final payment of the principal amount and all
accrued interest on BV's line of credit described in SECTION 3.2(B) and
termination thereof, and (iii) payment of all rent due through such date
under the Lease.
(b) Notwithstanding any provision herein to the contrary, BV shall have
the option, in its sole discretion, to terminate the Company upon written
notice to CRCT, between January 15, 2000 and January 25, 2000, if the
distributions of cash flow with respect to the period ending December 31,
1999 have not resulted in BV receiving the following on or before January 15,
2000: (i) return of the remaining $100,000 of BV's initial $200,000 capital
contribution together with all accrued interest thereon, (ii) payment of all
rent due through such date under the Lease, and (iii) the amount of $540,000
through distributions under SECTION 11.1(E) above.
(c) BV shall have the option, in its sole discretion, to terminate the
Company upon written notice to CRCT, between the January 15 and January 25
that follows the end of the initial five year term of the Company or the end
of any Renewal Term (as defined in SECTION 12.1 below), if it has not
received all rent due during such Renewal Term under the Lease (regardless of
whether such rent is deemed to be a distribution of cash flow for purposes of
SECTION 11.1(E) above), and, in addition to such rent payments, BV has not
received distributions of cash flow under SECTIONS 11.1(E) above in the
amounts set forth below for the term or Renewal Term specified:
YEAR DISTRIBUTION
1/1/2000 through 12/31/2001 $480,000
1/1/2002 through 12/31/2003 $960,000
1/1/2004 through 12/31/2005 $1,440,000
1/1/2006 through 12/31/2007 $1,920,000
1/1/2008 through 12/31/2009 $2,400,000
All distributions of cash flow with respect to any period ending on a
December 31 shall be made no later than the following January 15.
(d) If BV does not terminate the Company pursuant to and during the time
periods allowed by either SECTIONS 11.2(A), (B) OR (C) above, then such right
to terminate shall lapse and the Company shall continue in existence until
BV's next option to terminate or until the expiration of, in the case of BV's
right to terminate under SECTIONS 11.2(A) AND (B), its initial five year term
as set forth in SECTION 12.1 below, or, in the case of BV's right to
terminate under SECTION 11.2(C), until expiration of the applicable Renewal
Term.
16
(e) Notwithstanding any other provision herein to the contrary, either
Member shall have the option, in its sole discretion, to terminate the
Company in the event the other Member breaches its obligations hereunder and
such breach is not cured within thirty (30) days after written notice of such
breach is given to the breaching Member.
11.3 RIGHT OF CRCT TO TERMINATE.
(a) Subject to SECTION 11.3(B) below, CRCT shall have the option, in its
sole discretion, to terminate the Company upon one hundred eighty (180) days
written notice, given prior to the expiration of the initial five year term,
or upon ninety (90) days written notice given prior to the expiration of any
Renewal Term. If CRCT does not terminate the Company pursuant to and during
the time periods allowed by this SECTION 11.3(A), then such right to
terminate shall lapse and the Company shall continue in existence until
expiration of the succeeding Renewal Term.
(b) Notwithstanding, the provisions of SECTION 11.3(A) above, upon the end
of the initial five year term, CRCT shall be obligated, at the option of BV,
to extend the term of the Company for an additional three year period, and to
renew the term of the Lease for such three year period, which extension the
lessor shall agree to under the Lease, on the condition that BV's Percentage
Interest shall decrease from 40% to 33.33% effective as of the first day of
such three year period. If the term of the Company is extended under this
SECTION 11.3(b), BV shall not have the right to terminate the Company as
provided in Section 11.2(c), but instead shall have the right to terminate
the Company only upon the end of any of the Renewal Terms set forth below, or
for thirty days thereafter, and only if it has not received all rent due
during such Renewal Term under the Lease (regardless of whether such rent is
deemed to be a distribution of cash flow for purposes of SECTION 11.1(E)
above) and, in addition to such rent payments, has not received distributions
of cash flow under SECTION 11.1(E) above in the amounts set forth below for
the Renewal Terms specified:
YEAR DISTRIBUTION
1/1/2004 through 12/31/2005 $1,040,000
1/l/2006 through 12/31/2007 $1,440,000
1/l/2008 through 12/31/2009 $1,840,000
ARTICLE XII
TERM, TERMINATION, WINDING UP
12.1 TERM. The initial term of the Company shall be a period of five (5)
years, beginning March 1, 1997. Provided that the Lease and the Contract
shall remain in effect throughout such time and subject to the rights of the
parties to terminate the Company under SECTIONS 11.2 and 11.3 above, either
Member shall have the option to extend the term of the Company for four (4)
consecutive two (2) year periods (each a "Renewal Term"), beginning with the
expiration date of the initial term. Such renewal option(s) may be exercised
by written notice from one Member to the other Member not less than one
hundred eighty (180) days prior to the expiration of the preceding term.
17
12.2 EVENTS CAUSING DISSOLUTION. The Company shall be dissolved and its
affairs wound up upon:
(a) any event that terminates the continued membership of any Member
(unless the remaining Member continues the Company as provided in SECTION
9.3);
(b) an election to dissolve the Company made in writing by all Members;
(c) the bulk sale, exchange, or other disposition of all or substantially
all of the assets of the Company and the distribution of the net proceeds
therefrom;
(d) the election of either Member to terminate the Company pursuant to
SECTION 11.2 OR 11.3 hereof;
(e) the termination of the Lease;
(f) the termination of the Contract; or
(g) as may be otherwise provided by law.
12.3 PROCEDURE UPON THE OCCURRENCE OF AN EVENT OF DISSOLUTION. Upon the
occurrence of an event of dissolution as set forth in SECTION 12.2, the
provisions of SECTION 12.4 hereof shall apply. Such consent must be obtained
no later than thirty (30) days after the occurrence of the event of
dissolution.
12.4 WINDING UP AFFAIRS UPON DISSOLUTION. Upon a termination of the
Company, the remaining Member(s) shall promptly wind up the business and
affairs of the Company. The assets of the Company shall be applied as follows:
(a) To the setting up of any reserves which the Members deem reasonable
for any contingent or unforeseen liabilities or obligations of the Company
arising out of or in connection with the conduct of the Company's business or
the termination thereof. Any such reserves may be paid over to a bank or to
an attorney at law as escrow agent, to be held for the purposes of disbursing
such reserves in payment of the aforementioned contingencies and, at the
expiration of such period as shall have been deemed advisable, to distribute
the balance thereof in the manner provided in this Section;
(b) To the repayment of Company obligations as provided in ARTICLE XI
hereof;
(c) To the repayment of the Members' capital accounts.
(d) The remainder shall be distributed based upon each Member's Percentage
Interest.
18
(e) In the event the assets of the Company are insufficient upon
termination to return to the members all or any part of their respective
capital contributions, neither Member shall have any claim or recourse
against the other Member, except for losses caused by the intentional or
negligent actions or the bad faith of such Member.
12.5 TERMINATION. When a winding up of the Company is required, a
reasonable time, but not to exceed two (2) months, shall be allowed for the
orderly liquidation of such of the assets of the Company as are to be
liquidated and the discharge of all liabilities to its creditors, all so as
to enable the Company to minimize any losses attendant upon liquidation. The
Company shall be terminated when its affairs have been wound up and the
distribution of its assets has been completed.
12.6 LIQUIDATION STATEMENT. Each of the Members shall be furnished with a
statement which shall set forth the assets and liabilities of the Company as
of the date of complete liquidation an in the manner in which the assets of
the Company are to be or have been distributed.
12.7 VALUATION OF PROPERTIES. In the event of a liquidating distribution of
any of the Company's property in kind, the fair market value of such Property
shall be determined by an independent appraiser, approved by the Members,
engaged in appraisal work in the immediate vicinity of the Property, selected
by the Members, and each Member shall receive an undivided interest in such
assets or assets of the Company, as determined by agreement of the Members,
equal in value to the portion of the proceeds to which it would be entitled
if such asset or assets were sold or otherwise converted to cash at such
appraisal price and the cash were then distributed.
12.8 WAIVER OF RIGHT TO PARTITION. As a material inducement to each Member
to execute this Agreement, each Member covenants and represents to each other
Member that, during the existence of the Company, no Member, nor his heirs,
representatives, successors, transferees or assigns, shall attempt to make
any partition of any Company assets, whether now owned or hereafter acquired,
and each Member waives all rights of partition provided by statute or
principles of law or equity, including partition in kind or partition by sale.
12.9 CERTAIN PROHIBITIONS. BV agrees not to (a) during the term hereof or
for one year thereafter, produce at the theater, either directly or
indirectly, or rent the theater to any person or entity producing a country
and western music variety show which uses the word "Country" in its name or
in any trade name or trademark; (b) during the term hereof or for one year
thereafter, hire any person who was an employee of the Company, CRCT, CTE or
any affiliated entity within the one-year period prior to the termination of
the Company; or (c) at any time, violate any copyright, trademark or common
law intellectual property rights of CRCT, CTE or any affiliated entity.
ARTICLE XIII
MISCELLANEOUS
19
13.1 NOTICES. The address for each Member for all purposes shall be the
address set forth on the signature page to this Agreement, or such other
address of which the Company and other Members shall have received written
notice. Any notice, demand or request required or permitted to be given shall
be considered made when personally delivered or when deposited, postage
prepaid, by certified mail or registered mail, return receipt requested, to
such Member at such address or sent by facsimile transmission to such Member
at such address. If any notice is sent by facsimile transmission, a copy of
such notice shall also be mailed. Copies of any notices required or permitted
hereunder shall also be sent to the following addresses:
If to the Lessor: Xxxxxxx X. XxXxxxxx, Esq.
Gentry, Tipton, Xxxxx & XxXxxxxx, P.C.
000 X. Xxx Xxxxxx, Xxxxx 0000
P.O. Box 1990
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy Number: 000-000-0000
If to the Lessee: G. Xxxx Xxxxxxxx, Esq.
Bass, Xxxxx & Xxxx PLC
000 X. Xxx Xxxxxx, Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Telecopy Number: 000-000-0000
13.2 INTEGRATION. This Agreement embodies the entire agreement and
understanding among the Members and supersedes all prior agreements and
understandings, if any, among and between the members relating to the subject
matter hereof.
13.3 APPLICABLE LAW. This Agreement and the rights of the Members shall be
governed by and construed and enforced in accordance with the laws of the
State of Tennessee.
13.4 SEVERABILITY. In case any one or more of the provisions contained in
this Agreement or any application thereof shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and any other application thereof
shall i lot in any way be affected or impaired thereby.
13.5 BINDING EFFECT. Except as herein otherwise provided to the contrary,
this Agreement shall be binding upon, and inure to the benefit of, the
Members and their respective heirs, executors, administrators, successors,
transferees and assigns.
13.6 LITIGATION COSTS. The Members agree that in the event of litigation
between them with respect to any alleged breach of this Agreement, the
prevailing party shall be entitled to recover its costs of such litigation,
including reasonable attorneys' fees, in addition to any damages for such
breach.
20
13.7 ARBITRATION. The Members agree that any dispute between them arising
under or with respect to this Agreement shall be settled, if possible, by
mutual consultation and negotiation within thirty (30) days after written
notice of such dispute or claim has been given by the complaining Member to
the other Member. Should the Members fail to resolve the dispute within such
period of time, they hereby agree to submit the matter for arbitration in
Knoxville, Tennessee, under the then prevailing rules of the American
Arbitration Association, before a panel of three arbitrators, one appointed
by each Member, and the third appointed by the American Arbitration
Association. The decision or award of a majority of the arbitrators shall be
final and binding upon the parties, and may be entered as a judgment or order
in any court of competent jurisdiction.
13.8 SPECIFIC PERFORMANCE. Notwithstanding any provision herein to the
contrary, either Member may be irreparably damaged if this Agreement is not
specifically performed. Therefore, if any dispute should arise concerning the
obligations of a party to this Agreement, an injunction may be issued
restraining such action that is in contravention of this Agreement pending
the termination a of such controversy, and the obligations of any party shall
be enforceable in a court of equity by a decree of specific performance;
provided, however, such remedy shall be cumulative and not exclusive and
shall be in addition to any other remedy which the Members may have.
13.9 TERMINOLOGY. As the context may require, all personal pronouns used in
this Agreement, whether used in the masculine, feminine, or neuter gender,
shall include all other genders, and the singular shall include the plural,
as appropriate. Titles of Articles and Sections are for convenience only and
neither limit nor amplify the provisions of this Agreement itself.
13.10 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original agreement, and all of
which shall constitute but one agreement. Any Member may record a memorandum
of agreement of this Agreement and each Member agrees to sign a memorandum of
agreement evidencing this Agreement.
13.11 AMENDMENT. This Agreement may be amended, modified or supplemented
only by a writing execited by all Members.
IN WITNESS WHEREOF, this Agreement is executed effective as of the date
first set forth above.
CRC OF TENNESSEE, INC.,
A TENNESSEE CORPORATION
By: /s/ XXXX X. XXXXXX
-----------------------------------
Its: PRES.
-----------------------------------
ADDRESS:
21
0000 Xxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxxxxxxxx 00000-0000
(Telecopy number: 601/374-5935)
XXXXXXXX VENTURES, LLC.,
A TENNESSEE LIMITED LIABILITY COMPANY
By: /s/ X. XXXXXXXXX XXXXXXXX
-----------------------------------
Its: CHIEF MANAGER
-----------------------------------
ADDRESS:
0000 Xxxxxx Xxxxxx
000 Xxxxxxx Xxxxxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
(Telecopy number: 423/546-2625)
22
EXHIBIT 1
LEASE AGREEMENT
LEASE AGREEMENT
THIS LEASE AGREEMENT entered into this 24th day of September, 1996, by and
between X. XXXXXXXXX XXXXXXXX, M.D. ("Lessor"), and COUNTRY TONITE THEATRE,
L.L.C., a Tennessee limited liability company ("Lessee").
W I T N E S S E T H:
THAT IN CONSIDERATION of the payment of the rents set forth below, and of
the keeping of the mutual terms and covenants set forth herein, the parties
hereby enter into this Lease Agreement (the "Lease"), by which Lessor leases
to Lessee, and Lessee takes as a tenant, the property described on EXHIBIT A
hereto which has been improved for use as a theater and parking therefor (the
"Premises"), which exhibit is incorporated fully herein by reference, and all
of the furniture, equipment, and fixtures which are owned by Lessor and
currently used on the Premises, as more particularly described on EXHIBIT B,
which exhibit is incorporated fully herein by reference (the "Equipment"),
for a term beginning on the 15th day January, 1997 (the "Starting Date"), and
ending on the 31st day of December, 2001, unless sooner terminated or
extended in accord with the provisions herein. The "Premises" and the
"Equipment" are collectively referred to herein as the "Leased Property".
TO HAVE AND TO HOLD the Leased Property, with all rights, privileges and
appurtenances thereto belonging, unto Lessee for and during the term as above
provided; and Lessor covenants with Lessee to keep Lessee in quiet possession
of the Leased Property during the term of the Lease, unless sooner terminated
pursuant to any provision of the Lease, provided that Lessee shall promptly
pay the rent and keep and perform the covenants and agreements of this Lease.
1
1. POSSESSION OF LEASED PROPERTY: Lessee acknowledges that it has conducted
an inspection of the Leased Property, and the acceptance of possession by
Lessee shall be conclusive evidence that the Leased Property is in acceptable
condition and fit for Lessee's purposes. Lessee shall have the right of
possession of the Leased Property as of the Starting Date and Lessor shall
not permit the condition of the Leased Property to deteriorate between the
date hereof and the Starting date, ordinary wear and tear excepted. In
addition, upon the prior, written consent of Lessor, which shall not be
unreasonably withheld and subject to the rights of third parties, Lessee
shall have the right of access to and entry on the Leased Property prior to
the Starting Date, if and to the extent necessary to allow Lessee to prepare
for the performance of its obligations as stated herein and consistent with
Lessor's rights and obligations to the current tenant and other third parties.
2. USE OF LEASED PROPERTY: Lessee shall use the Leased Property solely for
the purpose of operating theatrical and musical productions including the
"Country Tonite Show" solely for the exclusive benefit of the Lessee, and
also including complimentary morning and afternoon musical and theatrical
shows, and celebrity shows, and for no other purposes without the prior,
written consent of Lessor. The parties acknowledge and agree that Lessee has
entered into or will enter into a contract with Country Tonite Enterprises
providing for performance of the "Country Tonite Show" on the Premises
throughout the term of this Lease Agreement, as provided in such contract, a
copy of which is attached hereto as EXHIBIT C (the "CTE Contract"). Lessee
shall comply, at its own expense, with all present and future federal, state,
and local laws, rules, regulations, ordinances, and/or orders concerning the
use of the Leased Property, provided, however, Lessor shall be responsible
for correcting any existing violations of such laws existing as of the
Starting Date. Lessee shall do nothing, and shall permit nothing to be done,
on or about
2
the Leased Property which constitutes waste, nuisance, or interference with
the peaceful, quiet enjoyment or use of adjoining or neighboring property.
Lessee shall do nothing which would make void or voidable any insurance on
the Leased Property. Lessee shall not damage the Leased Property and Lessee
shall exercise due care in and around the Leased Property. Lessee shall
preserve and protect the Leased Property and shall be responsible for keeping
the Premises clean. Notwithstanding anything herein, Lessee shall not be
liable for the cost of any damage actually reimbursed by insurance or any
damages that Lessor is required to insure hereunder.
3. RENT: Lessee shall pay Lessor rent on the first day of each month during
the term of this Lease, beginning on March 1, 1997 and on the first day of
each succeeding month. The amount of such rental shall be as follows:
(a) for the period beginning March 1, 1997 and ending on February 28,
1998, the total sum of Three Hundred Sixty Thousand Dollars
($360,000.00) payable in twelve (12) equal installments of Thirty
Thousand Dollars ($30,000.00) each;
(b) for the period beginning on March 1, 1998 and ending on February 28,
1999, the total sum of Four Hundred Eighty Thousand Dollars
($480,000.00) payable in twelve (12) equal installments of Forty
Thousand Dollars ($40,000.00) each;
(c) for the period beginning on March 1, 1999 and ending on February 28,
2000, the total sum of Eight Hundred Forty Thousand Dollars
($840,000.00) payable in twelve (12) equal installments of Seventy
Thousand Dollars ($70,000.00) each; and
(d) for each subsequent year during the term of this Lease (beginning on
each successive March 1 and ending on the following February 28,
unless terminated sooner in accordance with the terms of this Lease),
the total sum of Eight Hundred Forty Thousand Dollars ($840,000.00)
per year, payable in equal monthly installments of Seventy Thousand
Dollars ($70,000.00) each.
Rent shall be due and payable on the first day of each month without
further notice as to the due date and without set-off or deduction except as
otherwise expressly provided herein, at the address of Lessor specified on the
signature page of this Lease, or at such other address as the Lessor may from
time to time specify by written notice to Lessee.
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4. TAXES, UTILITIES, MORTGAGE PAYMENTS, PROPERTY INSURANCE, AND
ASSESSMENTS: Lessor shall be responsible for all mortgage paymerts (if any),
property taxes, and assessments (if applicable), and commercial property
insurance and his own commercial general liability insurance, if any, as to
the Leased Premises. Lessee shall be responsible for all other costs and
expenses, including utilities and all other insurance, including its own
commercial general liability insurance, connected with or relating to the
Leased Property during the term of this Lease Agreement, beginning on the
Starting Date, except to the extent expressly provided herein, as additional
rent.
5. REPAIRS AND MAINTENANCE: Lessor warrants that as of the Starting Date,
the Equipment will be in good operating condition, and Lessee's acceptance of
possession shall be conclusive evidence of such good condition. Lessor
assumes responsibility for major repairs that are essential and required as
to the roof and structure of the building located on the Premises and for
major repairs (not maintenance or minor repairs) as to the HVAC system
utilized in such theater building. Lessee shall be responsible for all other
repairs, maintenance, upkeep, and Cleaning as to the Leased Property. It
shall be the responsibility of Lessee to maintain the Leased Property and any
and all improvements thereto in good condition, repair, and working order,
ordinary wear and tear excepted, and except to the extent Lessor is obligated
to make a major repair as required above.
6. INSURANCE: Lessor shall purchase and maintain, at its expense, during
the term of the Lease, commercial property insurance covering the Leased
Property against at least those risks covered by the Insurance Services
Office Special Cause of Loss Form or its equivalent for the full replacement
value thereof with an agreed amount endorsement so as to avoid any
coinsurance penalty, with a deductible of not more than Twenty-five Thousand
Dollars
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($25,000.00). The risks of flood and earthquake shall also be insured against
either by endorsement to said commercial property policy or by a separate
policy specifically insuring against those risks.
Lessee shall purchase and maintain, at its expense, during the term of the
Lease commercial general liability insurance covering Lessee's legal
liability as respects the Leased Property and any adjacent property which
serves the Leased Property. Said insurance shall have limits of not less than
Ten Million Dollars ($10,000,000.00) per occurrence for bodily injury
including death, property damage and personal injury. Lessee agrees to name
Lessor as an Additional Insured -- Lessee of Premises.
In the event that both Lessor and Lessee agree, the commercial property and
commercial general liability required to be carried hereunder by both parties
pursuant to this PARAGRAPH 6 may be provided by one or more policies insuring
both Lessor, Lessee, and their respective owners. In such event, the total
limit of the commercial property policy shall be equal to the sum of the
limit required to be carried by Lessor and Lessee and the policy shall carry
a deductible not to exceed Twenty-Five Thousand Dollars ($25,000.00). The
limits of the commercial general liability policy shall not be less than Ten
Million Dollars ($10,000,000.00) per occurrence and general aggregate. The
premiums for said policy(ies) shall be paid by Lessor and Lessee based on the
respective charges made by the insurance company(ies) providing such
coverage, with Lessor paying the premiums related to the commercial property
insurance on the Leased Property and loss of rental income and landlord's
liability if Lessor decides to carry such insurance and with Lessee paying
the premiums related to the commercial general liabibility policy (other than
landlord's liability), loss of income insurance and commercial property
insurance on Lessee's own property. In the event of a loss under the
commercial property policy that is subject to a
5
deductible, Lessor and Lessee shall each bear that portion of the deductible
that is equal to a fraction of which the numerator is the amount of their
respective insured loss and the denominator of which is equal to the total
insured loss incurred. If either party elects to maintain their individual
policies for any policy period, they shall notify the other party at least
ninety (90) days prior to the expiration of the current policy(ies) period.
Both Lessor and Lessee will be named insureds on all said insurance policies.
All insurance required to be maintained by either Lessor or Lessee shall be
written by insurance companies licensed to do business in the State of
Tennessee and that have A.M. Best Ratings of A-VII or better and such
companies must be reasonably acceptable to Lessor. Lessor and Lessee shall
each provide the other with certificates of insurance evidencing the
insurance required by this PARAGRAPH 6 which must contain provisions that
require the insurer to give the certificate holder at least thirty (30) days
notice of cancellation or renewal.
7. WAIVER OF SUBROGATION: Lessor and Lessee hereby release the other from
any and all liability or responsibility to the other or anyone claiming
through or under them by way of subrogation or otherwise for any loss or
damage to property caused by fire or any other covered casualties, even if
such fire or other casualty shall have been caused by the fault or negligence
of the other party, or anyone for whom such party may be responsible,
PROVIDED, HOWEVER, that this release shall be applicable and in force and
effect only with respect to loss or damage fully covered by insurance and
occurring during such time as the releasor's insurance policies shall contain
a clause or endorsement to the effect that any such release shall not
adversely affect or impair said policies or prejudice the right of the
releasor to recover thereunder.
Lessor and Lessee each agrees that they will request their insurance
carriers to include in their policies a waiver of subrogation clause or
endorsement. If extra cost shall be charged
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therefor, each party shall advise the other thereof and of the amount of the
extra cost, and the other party, at its election, may pay the same, but shall
not be obligated to do so.
8. DAMAGE TO LEASED PROPERTY: In case of damage to the Leased Property or
any subsequent improvements by fire or other casualty, Lessee shall give
immediate written notice to Lessor, who shall elect to cause the damage to be
repaired with reasonable speed (unless the Lease is terminated as provided
below, subject to delays beyond the reasonable control of Lessor, and to the
extent the Premises are rendered unfit for Lessee's purpose, the rent shall
proportionately xxxxx beginning on the date of such damage. In the event that
the damage shall be so extensive that in the written opinion of an
independent architect selected by Lessor and reasonably acceptable to Lessee
that it is not reasonable for Lessor to repair or rebuild within one (1) year
from the date of such damages, this Lease shall be terminated as of the date
of such damage by written notice from Lessor to Lessee, given within ninety
(90) days after the date of such damage, and the rent shall be adjusted to
the date of such damaged and Lessee shall promptly vacate the Premises. In
the event that the Lease is not terminated in accordance with the terms of
this Agreement, and if Lessee reasonably ceases its use of the Premises as a
direct result of damage caused by fire or other casualty, then rent shall be
abated from the date of the damage until Lessee reasonably may resume use of
the Leased Property.
9. CONDEMNATION: If the whole or substantially whole of the Premises
shall be lawfully condemned or taken in any manner for any public or quasi-
public use or purpose, this Lease shall terminate as of the date of the taking.
If less than the whole or substantially the whole of the Premises shall be so
condemned or taken, then Lessor or Lessee may, at its option, terminate this
Lease as of the date of the taking if such taking materially interferes with
Lessee's
7
operations on the Premises. Upon any such condemnation or taking and the
continuation of this Lease as to any part of the Premises, the base rental
shall be diminished by an amount representing the part of the said rent
properly applicable to the portion of the Premises which may be so condemned
or taken. Lessor shall be entitled to receive the entire award in any
condemnation proceeding, except as provided below, and Lessee shall have no
claim against Lessor or against the proceeds of the condemnation. However,
Lessee shall not be prohibited from making an appropriate claim against the
condemning authority for the value of the unexpired term of the Lease and/or
for any displacement award to which Lessee may be entitled.
10. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS: Lessor shall not be
responsible for the making of any decorations, alterations, additions, or
improvements to the Leased Property. Lessee may not make decorations,
alterations, additions, or improvements (except required repairs,
maintenance, and cleaning and except for initial decorations, signs,
marquees, and additions deemed reasonably necessary by Lessee to make the
Premises operable as a County Tonite Theatre and which shall not cause any
structural, permanent or significant damage to the Leased Property or require
any cost or expense to Lessor upon termination of this Lease) on or to the
Leased Property without the prior consent of Lessor in writing. All permitted
decorations, alterations, additions, and improvements shall become the
property of Lessor and shall remain with the Leased Property as a part
thereof upon the termination of this Lease (except that Lessee may remove its
trade fixtures and personal property upon such termination). Further, Lessor,
at his option, may require Lessee to remove any decorations, signs, marquees,
trade fixtures, personal property and/or additions, at Lessee's sole expense,
and require Lessee to promptly and fully repair any damages caused by the
removal of any such item(s).
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11. SIGNS: Lessor consents to Lessee's use of the stone sign aid electronic
message reader currently used on the Premises (the "Message Reader") subject
to the following terms and conditions:
(a) Lessee shall not display any additional signs or any other outdoor
advertising materials on the Premises (except to the extent permitted
by PARAGRAPH 10 above) or relocate the existing stone sign, without
the prior, written consent of Lessor as to location, size, design,
and content. Lessee shall provide Lessor with reasonable
specifications, drawings, and descriptions when seeking such consent.
Such consent shall not be unreasonably withheld. Lessee shall bear all
expenses associated with any signs except for lease payments due in
connection with the Message Reader. Any such sign(s) placed upon the
Premises in accordance with this provision, shall:
(i) be in compliance with all federal, state, and local laws,
regulations, and ordinances;
(ii) not cause any damage to the Premises; and
(iii) promptly be removed by Lessee upon termination of the Lease;
(b) Lessee's use of the stone sign and Message Reader, and any permitted
modifications, shall not result in any damage to such sign or Message
Reader;
(c) Lessee may acquire an electronic sign or message reader for its use in
lieu of the existing Message Reader. In such event, Lessor shall have
the right to remove the existing Message Reader and Lessor shall have
no further obligation to provide an electronic sign or Message Reader
to Lessee. Lessee shall use its best efforts to assist Lessor in
selling, trading, or exchanging the Message Reader on terms
financially advantageous to Lessor. In that regard, Lessee shall
negotiate in good faith with Xxx Xxxx Industries, Inc. regarding the
acquisition of a replacement electronic sign or message reader,
including a possible trade of the existing Message Reader, but
notwithstanding the foregoing, Lessee shall not be required to
purchase a replacement electronic sign or message reader from Xxx Xxxx
Industries, Inc. if Lessee determines that it is in its best interests
to purchase a replacement electronic sign or message reader from
another vendor;
(d) If Lessee acquires a replacement electronic sign or message reader for
its use, Lessor shall have the option to acquire such sign and related
equipment from Lessee upon termination of this Lease for an amount
equal to the lower of:
(i) Lessee's adjusted tax basis in such equipment; or
(ii) sixty percent (60%) of the fair market value of such equipment.
9
Lessor shall have ninety (90) days following the termination of this
Lease to exercise any option provided hereunder and thirty (30) days
thereafter to pay the purchase price as computed above.
12. ACCESS BY LESSOR: Lessor and/or its authorized agents shall have the
right to enter the Premises at all reasonable times for inspection. Lessor
and/or its authorized agents shall have the right to enter the Premises to
show the Leased Property to prospective purchasers, tenants, or for any other
reasonable purpose upon twenty-four (24) hours advance notice.
13. ASSIGNMENT AND SUBLETTING: Lessee shall not assign, sell, mortgage, or
otherwise transfer this Lease, in whole or in part, or sublet all or part of
the Premises (except for limited licenses to third-parties for the purposes
of entertainment activities and vendors of items such as souvenirs,
refreshments and similar items that compliment the authorized uses of the
Premises, that provide revenue solely for the benefit of Lessee, and provided
such licenses have terms that are consistent with the terms of this Lease),
without the prior, written consent of Lessor, which consent may be withheld
for any reason, reasonable or unreasonable, in Lessor's sole discretion.
14. PARKING: Lessor agrees and covenants that throughout the term of the
Lease it shall provide on or adjacent to the Premises one (1) parking space
for every three (3) theater seats, togethr with reasonably sufficient tour
bus spaces. Lessee agree that a total of three hundred fifty (350) parking
spaces now exist; provided, however, that Lessor shall correct any drainage
problems that prevent the reasonable use of existing parking spaces prior to
the Starting Date. Lessor shall provide and gravel a total of one hundred
fifty (150) additional such parking spaces prior to March 1, 1997 in an
unpaved area until such time as Lessor and Lessee mutually agree that
additional paved parking spaces are reasonably required. Such parking spaces
need not be on the Premises but shall be located on the property currently
owned by the Lessor which
10
adjoins the Premises; the location of such spaces within that adjoining
property shall be at the discretion of Lessor but such parking area shall be
adjacent to the Premises or connected to the boundary of the Premises by a
walkway not to exceed twenty-five (25) feet in length. Such parking spaces
shall be in an area reasonably accessible to the theater and the utilities,
security, and maintenance of such spaces shall be the duty of Lessee. Such
parking, as located from time to time, shall become a part of the Premises
for purposes of this Lease Agreement. In the event Lessor fails to construct
and gravel such additional parking spaces on or before Xxxxx 0, 0000, Xxxxxx
may construct and gravel such parking spaces and may deduct the cost thereof,
with interest ther eon at the prime rate published in the WALL STREET JOURNAL
(the "Prime Rate"), from the rents payable hereunder.
15. ASSUMPTION OF EQUIPMENT LEASES: As of March 1, 1997, Lessee shall
assume all of Lessor's obligations under the equipment leases attached hereto
as COLLECTIVE EXHIBIT D which is incorporated herein by reference (the
"Leased Equipment"). Durinc the term of this Lease, Lessee shall have the
right to use the Leased Equipment.
Upon termination of this Lease, regardless of the cause of such
termination, all rights associated with the lease of sound and light
equipment (Pearson Leasing & Financial Corporation d/b/a Citizens National
Leasing), including title to such equipment if the Lease and any purchase
option has been paid in full, shall be the sole and exclusive property of
Lessor. Lessee shall use its best faith efforts to facilitate and arrange for
a reasonable sale of the video equipment currently leased by Pro Lease
Funding Group, Inc. to Xxxxxxxx Farms, LLC.
Lessee is not assuming any obligations under a lease between Xxx Xxxx
Industries, Inc. and Xxxxxxxx Farms, LLC in connection with the Message Reader.
Provided, however, Lessee shall have the right to use the Message Reader in
accordance with the terms set forth in
11
PARAGRAPH 11 hereof, and Lessor shall cause Xxxxxxxx Farms, LLC to make such
Message Reader available to Lessee.
16. EXTENSION AND TERMINATION OF TERM: Provided Lessee is not then in
default, and provided that the term of this Lease has not otherwise
terminated, and provided that the existence of Lessee has not been dissolved
as a result of the wrongful action of eitier member, Lessee shall have the
right, at the expiration of the initial five (5) year term of this Lease, to
a series of four (4) consecutive renewal options, each for a term of two (2)
years, and each beginning upon the date of expiration of the proceeding term.
Lessee shall exercise such option by written notice to Lessor, given in
accord with the notice provisions of this Lease, not less than one hundred
eighty (180) days prior to the expiration of the initial term and not less
than ninety (90) days prior to the expiration of any renewal term. In the
event the Lessee is dissolved in violation of Lessee's Operating Agreement,
this Lease shall terminate at the option of Lessor if Casino Resource
Corporation of Tennessee, Inc. caused such dissolution or by Lessee if
Xxxxxxxx Ventures, LLC caused such dissolution. Otherwise, if Lessee
terminates as a limited liability company in accordance with the terms of its
Operating Agreement and such termination is not wrongful, then this Lease
shall terminate.
17. DEFAULT: Any of the following shall constitute an event of default by
Lessee:
(a) Failure by Lessee to pay, in full, on the dates due, any rental or
other sums payable hereunder, including Lessee's obligation to pay for
insurance. TIME IS OF THE ESSENCE. Provided, however, Lessee shall
have five (5) days following written notice from Lessor to cure such
default.
(b) Failure by Lessee to observe or perform any of the terms, covenants,
agreements, or conditions contained in this Lease, other than payment
of rental, additional rental, or other sums due, for a period of
thirty (30) days after written notice from Lessor specifying such
default, provided, if any such default cannot be completely cured
within such thirty (30) day period, despite Lessee's diligent, best
faith effort, commenced immediately, then Lessee shall have a
reasonable time to complete the cure of such default, for a period not
to exceed ninety (90) days.
12
(c) The filing by Lessee of a voluntary petition in bankruptcy or a
voluntary petition or answer seeking reorganization, arrangement,
readjustment of debts, or any other relief under the bankruptcy act,
or any other insolvency act, or any action by Lessee indicating
consent, approval, or acquiescence in any such proceeding; the making
by Lessee of any general assignment for the benefit of its creditors;
or the inability of Lessee, or the admission by Lessee of the
inability to pay its debts.
(d) The filing of any involuntary petition in bankruptcy or similar
proceeding against Lessee, and the continuation of such proceeding for
a period of ninety (90) days undismissed, unbonded, or undischarged.
(e) The insolvency of Lessee.
(f) The desertion or abandonment, or failure to use the Leased Property as
the "Country Tonite Theatre" for any period (during the contemplated
annual operating season) exceeding seven (7) consecutive days,
regardless of whether Lessee continues to pay all stipulated rental,
unless Lessor provides written consent, which shall not be
unreasonably withheld, or unless caused by damage or destruction of
the Leased Property.
(g) The occurrence of any unlawful activity on the Premises permitted or
tolerated by the Lessee.
(h) Attachment of the Leased Property or Lessee's interest therein, if not
satisfied or dissolved within ten (10) days.
(i) The attempted assignment, subletting, or mortgaging of the Leased
Property without the prior, written consent of Lessor.
(j) Any construction, change, or alteration to the Leased Property by
Lessee or Lessee's agent without the prior, written consent of Lessor
unless permitted by this Lease.
The following shall constitute an event of default by Lessor under this
Lease:
(a) Failure by Lessor to observe or perform any of the terms, covenants,
agreements, or conditions contained in this Lease for a period of
thirty (30) days after written notice from Lessee specifying such
default. Provided, however, if Lessor has a repair obligation
pursuant to PARAGRAPH 5, such repair shall be commenced within ten
(10) days after written notice from Lessee and shall be completed as
promptly as possible.
18. REMEDIES: Lessor, to the extent permitted by law, may take any one or
more of the remedial steps set forth below, when there exists an event of
default by Lessee:
13
(a) Lessor may, at its option, declare the present value of all
installments of rent as determined at the time of default for the
remainder of the Lease term to be immediately due and payable, less
the present value of the reasonably foreseeable rental income from the
Leased Property for the remainder of the term.
(b) Lessor may re-enter and take possession of the Leased Property without
terminating this Lease, and re-lease the Leased Property in its
entirety for the account of Lessee, holding Lessee liable for the
difference in rent and other amounts actually paid by the new tenant,
and the rents and other amounts payable by Lessee hereunder.
(c) Lessor may terminate the Lease, exclude Lessee from possession of the
Leased Property, and use its best efforts to lease the same to another
for the account of Lessee, holding Lessee liable for all rent and
other amounts payable by Lessee hereunder.
(d) Lessor may take whatever action at law or in equity it may deem
necessary or desirable to collect the rent and other amounts then due
and thereafter to become due, or to enforce performance of any
obligation, agreement, or covenant of the Lease, and in connection
with such action, may recover all damages to Lessor for Lessee's
violation or breach of the Lease.
(e) No remedy reserved to Lessor hereunder is intended to be exclusive,
and each and every remedy shall be cumulative. No delay or omission
to exercise any right or power accruing to Lessor upon any default by
Lessee shall impair any such right or shall be construed to be a
waiver thereof.
(f) Lessee shall pay Lessor as additional damages in the event of breach
the reasonable fees of any attorneys employed by Lessor for the
collection of rent or the enforcement or performance of the Lease, and
all other expenses incurred by Lessor in connection therewith,
including but not limited to litigation expenses, court costs, and
court reporter's fees.
If an event of default by Lessor shall occur hereunder, in addition to any
other remedies granted or permitted by law, Lessee may cure such default and
may deduct the cost of such cure, plus interest thereon at the Prime Rate,
from the rents payable hereunder, provided, however, Lessee has first
provided written notice of such alleged default and Lessor has not commenced
to cure such alleged default within thirty (30) days following such notice.
Provided, if any such default cannot be completely cured within such thirty
(30) day period, despite Lessor's diligent,
14
best faith effort, commenced immediately, then Lessor shall have a reasonable
time to complete the cure of such default for a period not to exceed ninety
(90) days.
19. NOTICES: All notices required or permitted hereunder shall be given in
writing and shall either be personally delivered, sent by facsimile or mailed
to the addresses/facsimile numbers of the parties set forth on the signature
page of this Lease, or to such other addresses/facsimile numbers as may be
designated from time to time by either party, by notice given pursuant to
this paragraph. When notice is by mail, it shall be sent certified with
postage pre-paid and shall be complete upon its deposit in the U.S. mail.
Notices personally delivered or sent by facsimile shall be effective upon
delivery or transmission. If notices are sent by facsimile, a copy shall also
be mailed. Copies of any notices required or permitted hereunder shall also
be sent to the following:
If to Lessor: Xxxxxxx X. XxXxxxxx, Esq.
Gentry, Tipton, Xxxxx & XxXxxxxx, P.C.
000 X. Xxx Xxxxxx, Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
If to Lessee: G. Xxxx Xxxxxxxx, Esq.
Bass, Xxxxx & Xxxx, PLC
000 X. Xxx Xxxxxx, Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
20. SUBORDINATION: This Lease shall be subordinate to any mortgage now or
hereafter placed upon the Leased Property and to any and all renewals,
replacements, and extensions of any such mortgage, but only if Lessor shall
deliver to Lessee within ninety (90) days of the date any such mortgage is
executed a nondisturbance agreement from any such mortgagee of the Leased
Property in a form reasonably satisfactory to Lessee. Lessor also covenants to
provide Lessee within thirty (30) days of the date hereof a nondisturbance
15
agreement from any existing mortgagees in a form reasonably satisfactory to
Lessee. In the event of foreclosure of any such mortgage, exercise of power
of sale thereunder, or deed in lieu of foreclosure, Lessee shall attorr to
the purchaser under such foreclosure, exercise of power of sale, or deed in
lieu of foreclosure, and recognize such purchaser as the Lessor, provided
that such purchaser does not disturb Lessee's right to possession as long as
Lessee observes and performs all of the terms and conditions of this Lease.
21. WAIVER: No waiver by Lessor at any time of the breach of any covenant
by Lessee shall impair Lessor's rights for any subsequent breach, and
acceptance by Lessor of a portion of all rent last due shall not constitute a
waiver of the breach of any covenant or condition, or of any damages due to
Lessor by Lessee. No waiver of any provision of this Lease shall be binding
upon Lessoi unless in writing signed by Lessor. This provision may not be
orally waived.
22. CERTIFICATE OF GOOD STANDING: Lessor and Lessee agree, at any
reasonable time, and from time to time, upon not less than five (5) days
notice by the other party, to execute, acknowledge, and deliver to the other
party a statement in writing certifying that the Lease is unmodified and in
full force and effect, and certifying the dates to which the rent, rent
adjustments, and other charges have been paid, and stating whether or not to
the best knowledge of the signers of such certificate, that the other party
is in default in performance of any obligation under this Lease, and if so,
specifying such default, it being intended that such Statement be delivered
to and relied upon by any prospective purchaser, tenant, mortgagee of the
Premises or any lender to or investor in Lessee. If the other party fails or
refuses to provide such certificate within the time allowed, it will be
conclusively presumed that the Lease is in full force and effect in accord
with its terms and that the other party is not in default.
16
23. AMENDMENT OF LEASE: This Lease may not be altered, changed, or amended,
except by a document in writing, signed by Lessor and Lessee. This Lease
contains the entire agreement between the parties as to the Leased Property.
24. RECORDING: Upon the request of either party, the parties will execute a
memorandum of lease which may be recorded by either party, at the expense of
the party desiring such recordation.
25. GOVERNING LAW: This Lease shall be governed by the substantive,
internal laws of the State of Tennessee.
26. SEVERABILITY: If any provision of this Lease be invalid or
unenforceable in law, it shall not affect the validity of any other
provisions hereof.
27. CAPTIONS: The captions in this Lease are for convenience only, and
shall not be construed as a part of the Lease.
28. COUNTERPARTS: This Lease may be executed in several counterparts, each
having the full force and effect of an original.
29. SUCCESSORS AND ASSIGNS: This Lease shall be binding upon Lessor's
successors and assigns, and upon Lessee's successors and assigns, in the
event of any permitted assignment by Lessee.
30. MODIFICATIONS REQUIRED BY MORTGAGEE: Lessee agrees that in the event
that Lessor's mortgagee requires modifications or amendments to this Lease
(exclusive of economic modifications or amendments), Lessee shall execute
such changes and amendments which may be reasonably required.
31. UTILITY EASEMENTS: Lessor shall be entitled to enter into such
easements or agreements with utility companies which are required in order to
provide service to any portion
17
of the Premises. Lessee hereby consents to the execution of such easements by
Lessor, and agrees to execute any necessary documents and to take such action
necessary in order to consummate same.
32. ALL GENDERS AND NUMBERS INCLUDED: Whenever the singular or plural, or
masculine, feminine, or neuter is used in this Lease it shall equally apply
to, extend to and include the other.
33. NO PARTNERSHIP: Nothing contained herein shall be deemed or construed
by the parties or by any third party as creating the relationship of
principal and agent or a partnership or of a joint venture between the
parties hereto, it being understood and agreed that the sole relationship
between the parties hereto is that of Lessor and Lessee. Lessee shall be
solely responsible for all taxes and expenses arising out of the use and
occupancy of the theater except as expressly provided herein.
34. ESTATE OF LESSOR: Lessor represents and warrants to Lessee that it has
full right and lawful authority to enter into this Lease; that the Leased
Property is free and clear of all liens, exceptions, restrictions and
encumbrances except those shown on EXHIBIT E attached hereto; and that Lessor
will defend the title to the Leased Property against the claims of all
persons. The mechanic's lien filed by Creative Structures, Inc. will be
removed by Lessor on or before December 31, 1996.
35. QUIET POSSESSION: Lessor covenants that Lessee, upon performing and
observing the covenants to be observed and performed by Lessee under this
Lease, shall peaceably hold, occupy and enjoy the Leased Property during the
term of this Lease without interference by Lessor or by any other person
claiming by, through or under Lessor.
18
36. HAZARDOUS SUBSTANCES: Lessor represents and warrants that it has not
placed or disposed of any Hazardous Substances on the Premises and
furthermore represents and warrants that, to the best of its knowledge, no
such Hazardous Substances have been placed or disposed of by any other person
on the Premises.
"Hazardous Substance" means gasoline, motor oil, fuel oil, waste oil, other
petroleum or petroleum-based products, asbestos, polychlorinated biphenyls
("PCBs") and any chemical, material or substance to which exposure is
prohibited, limited or regulated by any federal, state, country, local or
regional authority or which, even if no so regulated, is known to pose a
hazard to health and safety, including but not limited to substances and
materials defined or designated as "hazardous substances", "hazardous
materials" or "toxic substances" under applicable law.
37. NO LIENS: Lessee shall not attempt to encumber the Leased Property in
any manner and Lessee shall not permit any mechanics', materialmen's, or other
lien to be placed upon the Leased Property in connection with any permitted
improvements, additions, or any required repairs and maintenance by Lessee.
IN WITNESS WHEREOF, the parties hereto have executed this Lease Agreement
as of the day and year first written above.
LESSOR:
X. XxxXXXXXX XXXXXXXX, M.D.
ADDRESS:
601 Xxxxxxx Professional Building
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
LESSEE:
COUNTRY TONITE THEATRE, L.L.C., A
TENNESSEE LIMITED LIABILITY COMPANY
19
By: /s/ XXXX X. XXXXXX
Its: Chief Manager
ADDRESS:
c/o Casino Resource Corporation
0000 Xxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
20
STATE OF TENNESSEE
COUNTY OF XXXX
Personally appeared before me, Notary Public of said County, X. XxxXXXXXX
XXXXXXXX, M.D., the within named bargainor, with whom I am personally
acquainted (or proved to me on the basis of satisfactory evidence), and who
acknowledged that he executed the within instrument for the purposes therein
contained.
Witness my hand, at office, this day of , 1996.
------------------------------
Notary Public
My Commission Expires:
---------------
STATE OF MISSISSIPPI
---------------
COUNTY OF XXXXXXXX
--------------
Before me, a Notary Public of the state and county aforesaid, personally
appeared Xxxx X. Xxxxxx with whom I am personally acquainted (or proved to me
on the basis of satisfactory evidence), and who, upon oath, acknowledged
himself to be President (or other officer authorized to execute the
instrument) COURTRY TONITE THEATRE, L.L.C., the within named bargainor, a
Tennessee limited liability company, and that he as such President executed
the foregoing instrument for the purpose therein contained, by signing the
name of the limited liability company by himself as President.
Witness my hand, at office, this 24 day of September, 1996.
/s/ XXXXXX X. XXXXXX
------------------------------
Notary Public
My Commission Expires: 6/6/2000
-------------------------
21
UNCONDITIONAL GUARANTY OF LEASE
Casino Resource Corporation ("CRC"), a Minnesota corporation, is the sole
owner of CRC of Tennessee, Inc., a Tennessee corporation ("CRCT"). CRCT is a
Member of Country Tonite Theatre, L.L.C., a Tennessee limited liability
company ("Lessee"), and CRCT owns sixty percent (60%) of the membership
interests of the Lessee. As an inducement for the execution of the foregoing
Lease Agreement (the "Lease"), and as an additional consideration to X.
XxxXxxxxx Xxxxxxxx, M.D. ("Lessor"), CRC covenants and agrees as follows:
1. CRC hereby unconditionally and absolutely guarantees the prompt and
full payment of Lessee's rental obligations described in paragraph 3
of the Lease Agreement but only to the extent of Thirty Thousand
Dollars ($30,000.00) per month and only through the initial five (5)
year term of the Lease.
2. CRC agrees that this Guaranty may be enforced by Lessor without first
resorting to or exhausting any other remedy, security, or collateral.
Lessor shall provide notice to CRC of any nonpayment of rent and
within five (5) days, CRC shall pay to Lessor Thirty Thousand Dollars
($30,000.00) for such month less any partial rental payments for such
month timely paid by Lessee. CRC agrees that its obligations pursuant
to this Guaranty shall not be impaired, modified, changed, released or
limited in any manner whatsoever by any impairment, modification,
change, release, or limitation of the liability of Lessee or its
estate in bankruptcy (including without limitation any rejection of
the Lease by Lessee or by any trustee or receiver in bankruptcy
resulting from the operation of any present or future provisions of
the United States Bankruptcy Code or any similar statute or decision
of any court.) The liability of CRC shall not be affected by any
repossession of the Leased Property by Lessor.
3. CRC agrees that in the event this Guaranty is placed in the hands of
an attorney for enforcement, CRC shall reimburse Lessor for any and
all expenses incurred, including reasonable attorney's fees and
litigation expenses.
4. CRC agrees that this Guaranty shall inure to the benefit of and may be
enforced by Lessor, his successors and assigns, and any mortgagee(s)
of the Leased Property, and shall be binding and enforceable against
CRC and CRC's successors, and assigns.
5. The execution of this Guaranty by Xxxx X. Xxxxxx, President of CRC,
has been duly authorized by an appropriate action of the Board of
Directors of CRC but no director, officer, or employee of CRC shall
have any personal liability for this Guaranty. A copy of the
corporate resolution authorizing the execution of this Guaranty shall
be promptly delivered to Lessee.
6. This Guaranty contains the entire agreement between the parties hereto
with respect to the transactions contemplated by this Guaranty and
supersedes all prior written or unwritten arrangements or
understandings with respect thereto. This Guaranty shall be governed
by and in accordance with the substantive, internal laws of the State
of Tennessee. CRC hereby submits to the jurisdiction and venue
of the state and federal courts located in Xxxx County, Tennessee. The
parties agree they have jointly prepared this Guaranty. This Guaranty
may not be modified, amended or revoked, except in a writing signed by
all parties. This provision may not be orally waived.
IN WITNESS WHEREOF, CRC has executed this Guaranty this 24 day of September,
1996.
CASINO RESOURCE CORPORATION, a
Minnesota corporation
By:/s/ XXXX X. XXXXXX
---------------------------------
Xxxx X. Xxxxxx
Its: President
STATE OF MISSISSIPPI
----------------
COUNTY OF XXXXXXXX
---------------
Before me, a Notary Public of the state and county aforesaid, personally
appeared XXXX X. XXXXXX, with whom I am personally acquainted (or proved to
me on the basis of satisfactory evidence), and who, upon oath, acknowledged
himself to be President (or other officer authorized to execute the
instrument) of CASINO RESOURCE CORPORATION, the within named bargainor, a
corporation, and that he as such President, executed the foregoing instrument
for the purpose therein contained, by signing the name of the corporation by
himself as President.
Witness my hand and seal, at office, this 24 day of September, 1996.
/s/ XXXXXX X. XXXXXX
--------------------------------------
Notary Public
My Commission Expires: 6/6/2000
----------------------
EXHIBIT A
The "Premises" is a portion of the real property owned by Lessor. The entire
tract owned by Lessor is more particularly described on EXHIBIT A-1 attached
hereto. The "Premises" is that portion improved as a theater building and the
parking therefor. The shaded area on the map attached hereto as EXHIBIT A-2
is an approximate depiction of the Premises.
EXHIBIT A-1
Diagram of Property Boundary
SITUATED in the Fifth (5th) Civil District of Xxxxxx County, Tennessee, and
within the corporate limits of the City of Pigeon Forge, Tennessee, and being
a 10.165 acre tract located on the eastern side of U. S. Highway 441, and
being more particularly bounded and described as follows:
BEGINNING at an iron pin set in the eastern right-of-way of U. S. Highway
441, said iron pin being 300 feet, more or less, in a northerly direction
from the intersection of the eastern right-of-way of U. S. Highway 441 with
the northern right-of-way of Sugar Hollow Road; thence with the right-of-way
of U. S. Xxxxxxx 000 Xxxxx 00 deg. 42 min. 48 sec. East passing an iron pin
at 55.38 feet, a total distance of 178.16 feet to an iron pin marking the
southwestern corner of Xxx 0 xx Xxxx Xxxxx Xxxxx (Map Book 21, Page 173);
thence leaving the right-of-way of U. S. Highway 441 and with the line of
Pine Grove Plaza the following two calls and distances: North 67 deg. 32 min.
43 sec. East 829.56 feet to an iron pin; North 48 deg. 13 min. 38 sec. East
169.07 feet to an iron pin, corner to Xxxxxx Xxxxx, Inc. (Deed Book 282, Page
15); thence with the line of Xxxxxx Xxxxx, Inc. the following two calls and
distances: South 54 deg. 40 min. 24 sec. East 349.54 feet to an iron pin;
North 43 deg. 24 min. 19 sec. East 247.69 feet to an iron pin, corner to Xxxx
and Xxxx Xxxxxxx (Deed Book 132, Page 88); thence with the line of Xxxxxxx
and a fence the following two calls and distances: South 56 deg. 20 min. 12
sec. East 136.66 feet to an iron pin; South 51 deg. 15 min. 57 sec. East
21.10 feet to an iron pin, corner to R. XxXxxx Xxxxxxx, et al. (Deed Book
522, Page 642); thence with the line of R. XxXxxx Xxxxxxx, et al., the
following six calls and distances: South 40 deg. 26 min. 51 sec. West 621.24
feet to an iron pin; thence running with the arc in a curve to the left in a
circle having a radius of 332.34 feet, a tangent of 60.39 feet, a chord call
and distance of North 83 deg. 26 min. 38 sec. West 118.84 feet to an iron
pin; thence South 86 deg. 15 min. 24 sec. West 97.00 feet to an iron pin;
thence running with the arc in a curve to the right in a circle having a
radius of 184.40 feet, a tangent of 76.99 feet, a chord call and distance of
North 71 deg. 04 min. 59 sec. West 142.09 feet to an iron pin; thence North
48 deg. 25 min. 23 sec. West 20.64 feet to an iron pin; thence running with
the arc in a curve to the left in a circle having a radius of 75.13 feet, a
tangent of 28.51 feet, a chord call and distance of North 69 deg. 12 min. 15
sec. West 53.31 feet to an iron pin, corner to BGA Associates (Deed Book 485,
Page 177) ; thence with the line of BGA Associates the following two calls
and distances: North 89 deg. 59 min. 25 sec. West 425.32 feet to an iron pin;
South 65 deg. 12 min. 05 sec. West 261.88 feet to an iron pin in the
right-of-way of U. S. Highway 441, the POINT OF BEGINNING, as shown by survey
of Xxxx X. Xxx, RLS #78O, ETE Consulting Engineering, Inc., 000 Xxx Xxxxx
Xxxxxxxx, Xxx Xxxxx, Xxxxxxxxx 00000, dated April 28, 1995, bearing Job No.
00-000-00.
THERE IS SPECIFICALLY RESERVED from the above-described property an exclusive
sign easement which is reserved by the First Parties named herein for the use
and benefit of the First Parties, their heirs, devisees and assigns over the
following described parcel of property:
SITUATED in the Fifth (5th) Civil District of Xxxxxx County, Tennessee, and
within the corporate limits of the City of Pigeon Forge, Tennessee, being
located on the eastern side of U. S. Highway 441, and being more particularly
described as follows:
TO FIND THE POINT OF BEGINNING start at an iron pin set in the eastern
right-of-way of U. S. Highway 441, said iron pin being 300 feet, more or
less, in a northerly direction from the intersection of the eastern
right-of-way of U. S. Highway 441 with the northern right-of-way of Sugar
Hollow Road; thence running with the eastern right-of-way of U. S. Highway
441 and the
western terminus of a 50 foot joint permanent non-exclusive easement North 00
deg. 42 min. 48 sec. East 55.38 feet to an iron pin lying in the northern
line of said 50 foot joint permanent non-exclusive easement, said iron pin
marking the place of beginning of the sign easement area; thence leaving the
right-of-way of U. S. Highway 441 and with the northern line of a 50 foot
joint permanent nonexclusive easement North 65 deg. 12 min. 05 sec. East
20.00 feet, more or less, to a point; thence leaving the rigbt-of-way of a 50
foot joint permanent non-exclusive easement North 00 deg. 42 min. 48 sec.
East 20.00 feet, more or less, to a point; thence South 65 deg. 12 min. 05
sec. West 20.00 feet, more or less, to a point in the eastern right-of-way of
U. S. Highway 441; thence with the eastern right-of-way of U. S. Xxxxxxx 000
Xxxxx 00 deg. 42 min. 48 sec. West 20.00 feet, more or less, to an iron pin,
the POINT OF BEGINNING, as shown on survey of Xxxx X. Xxx, RLS #780, ETE
Consulting Engineering, Inc., 000 Xxx Xxxxx Xxxxxxxx, Xxx Xxxxx, Xxxxxxxxx
00000, dated April 28, 1995, bearing Job No. 00-000-00.
The Second Party by joining in the execution of this Correction Warranty
Deed, does hereby grant, bargain, sell and convey unto First Parties the
exclusive sign easement aforementioned, which sign easement was erroneously
omitted from that prior deed of record in Deed Book 522, Page 646, in the
Xxxxxx County Register's office. The spouse of Second Party, Xxxx X.
Xxxxxxxx, joins in the execution of this Correction Warranty Deed for the
sole purpose of conveying any marital interest which she may have in the
above-described property, to First Parties for the purpose of said sign
easement.
THERE IS SPECIFICALLY RESERVED by the First Parties named herein a 50 foot
wide joint permanent non-exclusive easement for ingress, egress and utilities
running over, across and under the above-described 10.165 acre tract of
property, said 50 foot wide joint permanent nonexclusive easement being more
particularly bounded and described as follows:
SITUATED in the Fifth (5th) Civil District of Xxxxxx County, Tennessee, and
within the corporate limits of the City of Pigeon Forge, Tennessee, and being
more particularly bounded and described as follows:
BEGINNING at an iron pin in the eastern right-of-way of U. S. Highway 441,
said iron pin being located 300 feet, more or less, in a northerly direction
from the intersection of the eastern right-of-way of U. S. Highway 441 with
the northern right-of-way of Sugar Hollow Road; thence with the right-of-way
of U. S. Xxxxxxx 000 Xxxxx 00 deg. 42 min. 48 sec. East 55.38 feet to an iron
pin; thence leaving the right-of-way of U. S. Highway 441 and running along
the northern right-of-way line of the 50 foot wide joint permanent
non-exclusive easement the following calls and distances: North 65 deg. 12
min. 05 sec. East 249.02 feet to an iron pin; thence South 89 deg. 59 min. 25
sec. East 436.32 feet to an iron pin; thence running with an arc in a curve
to the right in a circle having a radius of 125.13 feet, a tangent of 47.49
feet, a chord call and distance of South 69 deg. 12 min. 15 sec. East 88.79
feet to an iron pin; thence South 48 deg. 25 min. 23 sec. East 20.64 feet to
an iron pin; thence running with an arc in a curve to the left in a circle
having a radius of 134.40 feet, a tangent of 56.11 feet, a chord call and
distance of South 71 deg. 04 min. 59 sec. East 103.56 feet to an iron pin;
thence North 86 deg. 15 min. 24 sec. East 97.00 feet to an iron pin; thence
running with the arc in a curve to the right in a circle having a radius of
382.34 feet, a tangent of 80.69 feet, a chord call and distance of South 81
deg. 49 min. 36 sec. East 157.90 feet to an iron pin in the line of R. XxXxxx
Xxxxxxx, et al. (Deed Book 522, Page 642); thence with the line of R. XxXxxx
Xxxxxxx, et al. the following six calls and distances: South 40 deg. 26 min.
51 sec. West 53.90 feet to an iron pin; thence running with the arc in a
curve to
the left in a circle having a radius of 332.34 feet, a tangent of
60.39 feet, a chord call and distance of North 83 deg. 26 min. 38 sec. West
118.84 feet to an iron pin; thence South 86 deg. 15 min. 24 sec. West 97.00
feet to an iron pin; thence running with an arc in a curve to the right in a
circle having a radius of 184.40 feet, a tangent of 76.99 feet, a chord call
and distance of North 71 deg. 04 min. 59 sec. West 142.09 feet to an iron
pin; thence North 48 deg. 25 min. 23 sec. West 20.64 feet to an iron pin;
thence running with an arc in a curve to the left in a circle having a radius
of 75.13 feet, a tangent of 28.51 feet, a chord call and distance of North 69
deg. 12 min. 15 sec. West 53.31 feet to an iron pin, corner to BGA Associates
(Deed Book 485, Page 177); thence with the line of BGA Associates the
following two calls and distances: North 89 deg. 59 min. 25 sec. West 425.32
feet to an iron pin; thence South 65 deg. 12 min. 05 sec. West 261.88 feet to
an iron pin in the eastern right-of-way line of U. S. Highway 441, the POINT
AND PLACE OF BEGINNING, as shown by survey of Xxxx X. Xxx, RLS #780, ETE
Consulting Engineering, Inc., 000 Xxx Xxxxx Xxxxxxxx, Xxx Xxxxx, Xxxxxxxxx
00000, dated April 28, 1995, bearing Job No. 00-000-00.
The Second Party named herein joins in the execution of this deed to grant,
bargain, sell and convey to First Parties, their heirs, devisees and assigns,
a joint permanent non-exclusive easement for ingress, egress and utilities
over, across and under the aforedescribed easement area so as to correct the
description of the easement area previously described in Deed Book 522, Page
646, in the Xxxxxx County Register's Office. The easement rights reserved to
First Parties named herein are non-exclusive rights and the Second Party, his
heirs, devisees and assigns shall have the joint use of said easement area
for the purpose of ingress, egress and utilities.
There is further conveyed with the 10.165 acre tract property described above
and there is specifically reserved herein an additional joint permanent
non-exclusive easement for ingress, egress and utilities running over, across
and under the following described property:
SITUATED in the Fifth (5th) Civil District of Xxxxxx County, Tennessee, and
within the corporate limits of the City of Pigeon Forge, Tennessee, and being
a 50 foot wide right-of-way immediately north of and running parallel with
the following described line, which line marks the southern right-of-way line
for said 50 foot wide joint permanent non-exclusive easement for ingress,
egress and utilities:
TO FIND THE POINT OF BEGINNING start at an iron pin set in the eastern
right-of-way line of U. S. Highway 441, said iron pin being 300 feet, more or
less, in a northerly direction from the intersection of the eastern
right-of-way of U. S. Highway 441 with the northern right-of-way of Sugar
Hollow Road and said iron pin being corner to BGA Associates (Deed Book 485,
Page 177); thence running with the line of BGA Associates the following two
calls and distances: North 65 deg. 12 min. 05 sec. East 261.88 feet to an
iron pin; thence South 89 deg. 59 min. 25 sec. East 425.32 feet to an iron
pin, corner to R. XxXxxx Xxxxxxx, et al.; thence with the line of Xxxxxxx, et
al. the following five calls and distances: Running with the arc in a curve
to the right in a circle having a radius of 75.131 feet, a tangent of 28.513
feet, a chord call and distance of South 69 deg. 12 min. 18 sec. East 53.315
feet to an iron pin; thence South 48 deg. 25 min. 23 sec. East 20.64 feet to
an iron pin; thence running with the arc in a curve to the left in a circle
having a radius of 184.400 feet, a tangent of 76.985 feet, a chord call and
distance of South 71 deg. 05 min. 00 sec. East 142.085 feet to an iron pin;
thence North 86 deg. 15 min. 24 sec. East 97.00 feet to an iron pin; thence
running with the arc in a curve to the right in a circle having a radius of
332.340 feet, a tangent of 67.162 feet, a chord call and distance of South 82
deg. 19
min. 07 sec. East 131.662 feet to an iron pin, the POINT OF BEGINNING; thence
running with the arc in a curve to the right in a circle having a radius of
345.332 feet, a tangent of 96.499 feet, a chord call and distance of South 55
deg. 16 min. 53 sec. East 185.877 feet to an iron pin; thence South 39 deg.
40 min. 08 sec. East 193.90 feet to an iron pin, being corner to property of
Xxxxxxx Xxxxxx, said iron pin marking the terminus of the easement area and
being according to the survey of Xxxxxx X. Xxxx, Tennessee Registered Land
Surveyor No. 683, 0000 Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, dated
December 20, 1994 and last revised on April 19, 1995.
There is further conveyed with the 10.165 acre tract described above and
specifically reserved a joint permanent non-exclusive easement for ingress,
egress and utilities running over, across and under the following described
parcel of property:
SITUATED in the Fifth (5th) Civil District of Xxxxxx County, Tennessee, and
within the corporate limits of the city of Pigeon Forge, Tennessee, beginning
at an iron pin marking the southeastern terminus of the aforementioned
easement described above, and which iron pin lies in the southwestern
right-of-way line of the 50 foot wide joint permanent non-exclusive easement
area; thence leaving said point and place of beginning and running with the
southern terminus of the 50 foot wide joint permanent non-exclusive easement
for ingress, egress and utilities aforedescribed, North 50 deg. 19 min. 51
sec. East 50.00 feet to an iron pin; thence South 39 deg. 40 min. 08 sec.
East 132.93 feet to an iron pin; thence North 79 deg. 28 min. 09 sec. East
110.87 feet to an iron pin; thence running with the arc in a curve to the
right in a circle having a radius of 50.01 feet, a tangent of 39.94 feet, an
arc distance of 67.40 feet to an iron pin lying in the northern right-of-way
line of Sugar Hollow Road; thence running with the northern right-of-way line
of Sugar Hollow Road and running with the arc in a curve to the left in a
circle having a radius of 498.40 feet, a tangent of 25.03 feet, an arc
distance of 50.03 feet to an iron pin, being corner to property of X. X.
XxXxxxxx (Plat Book 5, Page 72); thence running with the line of XXXxxxxx
South 79 deg. 28 min. 09 sec. West 140.25 feet to an iron pin, being corner
to property of Xxxxxxx Xxxxxx; thence running with the line of Xxxxxxx Xxxxxx
North 39 deg. 40 min. 08 sec. West 162.30 feet to an iron pin, marking the
POINT AND PLACE OF BEGINNING, and being according to the survey of Xxxxxx X.
Xxxx, Tennessee Registered Land Surveyor No. 683, 0000 Xxxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, dated December 20, 1994 and last revised on
April 19, 1995.
BEING part of the same property conveyed to R. XxXxxx Xxxxxxx and Xxxx Xxxxxx
Xxxx by Quit Claim Deed from R. XxXxxx Xxxxxxx, Trustee, dated June 16, 1994,
of record in Deed Book 522, Page 642, in the Xxxxxx County Register's Office.
EXHIBIT A-2
Diagram of Property Boundary
EXHIBIT B
Furniture, equipment, and fixtures
--------------------------------------------------------------------------------------------
TAKEN BY: Xxxx Xxxxxxx TITLE Con. Manager
DEPARTMENT: Concessions DATE: 2-26-96
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Popcorn Popper Serial # 1
EP-1412781A
--------------------------------------------------------------------------------------------
Popcorn Popper Serial # 1
EP-1412768A
--------------------------------------------------------------------------------------------
Popcorn Warmer Serial # 1
CW-3265
--------------------------------------------------------------------------------------------
TEC Cash Register Serial # 1
5D201659
--------------------------------------------------------------------------------------------
TEC Cash Register Serial # 1
5D201700
--------------------------------------------------------------------------------------------
TEC Cash Register Serial # 1
5D201645
--------------------------------------------------------------------------------------------
TEC Cash Register Serial # 1
5H200668
--------------------------------------------------------------------------------------------
TEC Cash Register Serial # 1
4S200153
--------------------------------------------------------------------------------------------
Pretzel Cooker Serial # 1
PWH-00271
--------------------------------------------------------------------------------------------
Prestzel Cooker Serial # 1
PWH-00287
--------------------------------------------------------------------------------------------
Hot Dog Cooker Serial # 1
9505010389
--------------------------------------------------------------------------------------------
Hot Dog Cooker Serial # 1
9505010390
--------------------------------------------------------------------------------------------
Microwave Serial # 1
139972
--------------------------------------------------------------------------------------------
Cookie Oven Serial # 1
3915
--------------------------------------------------------------------------------------------
Bread Warmer Serial # 1
45903654
--------------------------------------------------------------------------------------------
Bread Warmer Serial # 1
45903655
--------------------------------------------------------------------------------------------
Standing Freezer Serial # 1
951070088
--------------------------------------------------------------------------------------------
Standing Freezer Serial # 1
951070488
--------------------------------------------------------------------------------------------
3-Tub Sink Serial # 1
94-3-54
--------------------------------------------------------------------------------------------
Prep Table Stainless Steel 1
--------------------------------------------------------------------------------------------
Shelves Shelving Units 7 Steel
Shelves
--------------------------------------------------------------------------------------------
Tables Concession Area 15
--------------------------------------------------------------------------------------------
??? Steam-Xxxxx 4
???
--------------------------------------------------------------------------------------------
Small Chopper Onion Chopper 1
--------------------------------------------------------------------------------------------
Bun ??? Coffee maker 1
--------------------------------------------------------------------------------------------
??? Cholate Choc-o-jet 1
Maker
--------------------------------------------------------------------------------------------
Cappaccino Maker ???/Cappaccino 1
--------------------------------------------------------------------------------------------
Coca Cola Clock Quartz Pewndulum 1
--------------------------------------------------------------------------------------------
*NOTE: Most of the items listed herein are served by vendors (i.e. Cola)
--------------------------------------------------------------------------------------------
TAKEN BY: Xxx Xxxxxxxx TITLE
DEPARTMENT: Concessions DATE:
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Desk ??? 90 degree 1
--------------------------------------------------------------------------------------------
Computer Monitor 1 #14516
Harddrive 1 #BCS1066
Keyboard 1
#59522202931
--------------------------------------------------------------------------------------------
Chair APC ??? 1
Roll-maroon 1
xxxx-desk
--------------------------------------------------------------------------------------------
Calculator Sharp 1
EL-71926
--------------------------------------------------------------------------------------------
ATT Phone MLS-18D 1
--------------------------------------------------------------------------------------------
Refrigerator 1 Coke Cola 1
sld door (glass)
--------------------------------------------------------------------------------------------
Self Serve System 64 nit. stack 1
sugar-xxxxxxx
stirs & ***
--------------------------------------------------------------------------------------------
Rack Potato Chip 2
--------------------------------------------------------------------------------------------
Dispenser Stainless- 1
Mustard Catsup 3 center onion-
pepper-relish
--------------------------------------------------------------------------------------------
??? Audio Central S/N 3050 1
???
--------------------------------------------------------------------------------------------
??? ??? DN514 2
--------------------------------------------------------------------------------------------
Composer Audio Module 5
Interactive MDX 2100
Dynamics ???
--------------------------------------------------------------------------------------------
??? Equalizer YDC 2006 2
Yamaha
--------------------------------------------------------------------------------------------
Sonic Maximizer BBE-862 2
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Clock Spartus 1
Battery/plug
--------------------------------------------------------------------------------------------
Chairs High/xxxx ??? 3
--------------------------------------------------------------------------------------------
5280 - Wearer
Metal Scoops - 4
--------------------------------------------------------------------------------------------
TAKEN BY: Xxx Xxxxxxx TITLE:
DEPARTMENT: Mail Center/??? DATE:
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
1 UPS Scale
--------------------------------------------------------------------------------------------
1 Xxx ???
T1-5022
Calculator
--------------------------------------------------------------------------------------------
1 8510 Postage
Weight Machine
--------------------------------------------------------------------------------------------
1 Neopost mail meter
--------------------------------------------------------------------------------------------
1 mail box system
--------------------------------------------------------------------------------------------
1 letter tray
--------------------------------------------------------------------------------------------
1 postage meter
carrier
--------------------------------------------------------------------------------------------
wood/??? chairs maroon chairs w/ 7 maroon/ 2
pattern, wheels wood office
door
--------------------------------------------------------------------------------------------
desk chairs swivel maroon and 3
xxxx, adjustable
--------------------------------------------------------------------------------------------
cabinet 4 drawer file 1
cabinet
--------------------------------------------------------------------------------------------
??? white ??? 5' tall 1
w/paper
--------------------------------------------------------------------------------------------
pc 486, monitor, ??? 1 #J9509?234 #RCS1064-
printer, keyboard, harddrive
APC 280 hookup #USFB168196-
--------------------------------------------------------------------------------------------
Desk/wall Wood (maroon) 1
system desk/credenza
w/shelves
--------------------------------------------------------------------------------------------
Side table table for ??? (used 1
ok'd printer)
--------------------------------------------------------------------------------------------
??? ??? 1
--------------------------------------------------------------------------------------------
PC monitor- 1 ???
keyboard- 1 ???
harddrive 1 ???
APC280 1 ???
Printer 1 ???
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
INVENTORY SHEET
PAGE OF
--- ---
TAKEN BY XXXX XXXXXX TITLE
----------------------------- -----------------------------------------
DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Equalizer sraphic klark 2
teknik dh360
--------------------------------------------------------------------------------------------
Remote Controller 1
Lexicon HRC HiDi
Remote 1838/
--------------------------------------------------------------------------------------------
Receiver Constream 1
Audio DR200 Digital
--------------------------------------------------------------------------------------------
Casset JVCTDW217 1
Deck Double
--------------------------------------------------------------------------------------------
Xxxxxx Power 2
PL8 Conditioners,
Light Module
--------------------------------------------------------------------------------------------
PROCO PM 148 3
--------------------------------------------------------------------------------------------
Auto JVCXLF108 1
Changer Compact Disc
--------------------------------------------------------------------------------------------
Converter A7-Hi Density 2
Sony Linear A/B B/A
--------------------------------------------------------------------------------------------
Pro Audio Alesis Adat 2
Receiver 8 Tract
--------------------------------------------------------------------------------------------
Remote Alesis-BRC 1
Control ADAT Hasters
--------------------------------------------------------------------------------------------
Xxxxxx Conditioner AC
Power Line Reg
--------------------------------------------------------------------------------------------
Xxxxxx Power Model RA 117 1
--------------------------------------------------------------------------------------------
Hi-Current 1
Linear Power
Supply JBL
SSG1
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
INVENTORY SHEET
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
Sound Craft 1 (w/one
Vienna II power
supply)
--------------------------------------------------------------------------------------------
Avolites 1
Diamond II
--------------------------------------------------------------------------------------------
Fusinon Robotics for 3
EPT-SE Camera
10D
--------------------------------------------------------------------------------------------
Cameras JVC - 3CCD KY 3
27B
--------------------------------------------------------------------------------------------
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--- ---
--------------------------------------------------------------------------------------------
Yammaha Professional multi effect processor SPX990 (4)
Lexicon LXP-15II Digital effects processor (1)
--------------------------------------------------------------------------------------------
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
YELLOW WET flax 1
--------------------------------------------------------------------------------------------
red/black shop vac 1.25 h.p. 1
--------------------------------------------------------------------------------------------
white hand towels 20
--------------------------------------------------------------------------------------------
blue/red Ryobi model IDZ21R 1
SS 95332
--------------------------------------------------------------------------------------------
Emergency lint system 1
Quantum Powered
--------------------------------------------------------------------------------------------
Safco-Red Dolly 1
--------------------------------------------------------------------------------------------
Dust scop black 1
--------------------------------------------------------------------------------------------
Philips reflector 1 case 300
light sign
--------------------------------------------------------------------------------------------
philips-fluorescent 2 cases
long bulbs
--------------------------------------------------------------------------------------------
150 xxxxx hako-reflector 8 bulbs
lamps
--------------------------------------------------------------------------------------------
88009 sylvania 6 bulbs
reflector lights
--------------------------------------------------------------------------------------------
25 watt hako 8 bulbs
incandescent
lamps
--------------------------------------------------------------------------------------------
sylvania par lamps 1 bulb
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
INVENTORY SHEET
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
chiller juice 3 4 liter 1 20 lter
molecular fluid water base
xxxx fluid
--------------------------------------------------------------------------------------------
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----------------------------- -----------------------------------------
DEPARTMENT STAGE CLOSET DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
concrete stone 5 cans
--------------------------------------------------------------------------------------------
floor lamp 1
adjustable neck
yellow
--------------------------------------------------------------------------------------------
11 gallon air 1
compressor
--------------------------------------------------------------------------------------------
tornado-buffer 1
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
INVENTORY SHEET
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Shure SM91
Indirect
condensed MK
--------------------------------------------------------------------------------------------
Shure 1
--------------------------------------------------------------------------------------------
Shure LP-1 4 (Sm98
Codenser Preamps)
Microphone
preamp
--------------------------------------------------------------------------------------------
PAR 64Q FFP 12
--------------------------------------------------------------------------------------------
PAR 64Q NSP 6
--------------------------------------------------------------------------------------------
Pyropak I
#24350
--------------------------------------------------------------------------------------------
Pyropak II
#3265
--------------------------------------------------------------------------------------------
Stage Gerb 10x12 Gold 6 cans
--------------------------------------------------------------------------------------------
Stage Gerb 10x12 Silver 8 cans
--------------------------------------------------------------------------------------------
Air Burst Flash Power As 2.5 Box
--------------------------------------------------------------------------------------------
Air Burst Flash Power Bs 2.5 Box
--------------------------------------------------------------------------------------------
Gerb Fan 3 Prong Fan
--------------------------------------------------------------------------------------------
New 4
Used 4
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
INVENTORY SHEET
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
INVENTORY SHEET
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
White back 65' 1
drop
--------------------------------------------------------------------------------------------
Flag American 1
--------------------------------------------------------------------------------------------
Wood White Slats 5 multi
--------------------------------------------------------------------------------------------
Curtains Black legs 10
--------------------------------------------------------------------------------------------
65' Border Black 3
--------------------------------------------------------------------------------------------
65' Main-Red 1
--------------------------------------------------------------------------------------------
65' Main-Red 1
--------------------------------------------------------------------------------------------
Misc folding xxxx 5
Chairs
--------------------------------------------------------------------------------------------
chairs folding xxxxx 2
--------------------------------------------------------------------------------------------
folding 5
--------------------------------------------------------------------------------------------
white plastic 3
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Equalizer Xxxxx Xxxxx 4
Graphic
--------------------------------------------------------------------------------------------
DN 3601 16646
DN 3601 16645
--------------------------------------------------------------------------------------------
DN 3601 161
DN 3601
--------------------------------------------------------------------------------------------
XXXXXX Power 1
Coditioner and
Light Module
--------------------------------------------------------------------------------------------
Composer Dynamic
Processor
--------------------------------------------------------------------------------------------
T80740004 1
Model
--------------------------------------------------------------------------------------------
Shore SC4 Receiver 1
86DD45G4
--------------------------------------------------------------------------------------------
Shore WA 404
Antenna Power
--------------------------------------------------------------------------------------------
Distributor 2
System
--------------------------------------------------------------------------------------------
Multigate 1400 Interactive 1
Module Guad 51186510
--------------------------------------------------------------------------------------------
Crown Macro Tech 1
36x12
352566
--------------------------------------------------------------------------------------------
Crossover TDM24CX2 1
Stireo
--------------------------------------------------------------------------------------------
Pigtail TOA Processor 5
--------------------------------------------------------------------------------------------
Crown Macro 19
Tech 2400
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
TDM Quad 2
Crossover 2
--------------------------------------------------------------------------------------------
Horizon Microphone 1
in put Box
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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AWP 300 Personnel Lift1
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Sound Sound 10'
Cord
--------------------------------------------------------------------------------------------
Sound 50'
--------------------------------------------------------------------------------------------
1 Con-Cord 100'
--------------------------------------------------------------------------------------------
1 electric Con 47
Lights
--------------------------------------------------------------------------------------------
2 Elec-can 36
lights
--------------------------------------------------------------------------------------------
Cybers 4
--------------------------------------------------------------------------------------------
3 Elec Can 33
--------------------------------------------------------------------------------------------
Cyber 2
--------------------------------------------------------------------------------------------
4 Elec-can 44
--------------------------------------------------------------------------------------------
Cyber 2
--------------------------------------------------------------------------------------------
5 Elec-Can 32 8 Lekos
6 cyc-lights
(4 each)
--------------------------------------------------------------------------------------------
Floor Cyber 4
--------------------------------------------------------------------------------------------
Floorcans 24
--------------------------------------------------------------------------------------------
floor 4-light 6
clusters
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Misc. Xxxx Camera 3
--------------------------------------------------------------------------------------------
Yellow 25'
Extension cord
--------------------------------------------------------------------------------------------
WYB-Con 100'
Auto Pilot
--------------------------------------------------------------------------------------------
Orange Traffice 18
Cones
--------------------------------------------------------------------------------------------
Xxxxxx Power
Conditioner
--------------------------------------------------------------------------------------------
AR-117 1
--------------------------------------------------------------------------------------------
Yamaha LHO-1135
PX 990 LHO-1525
--------------------------------------------------------------------------------------------
Effect Processor 2
--------------------------------------------------------------------------------------------
Stage Lights
EAW 200
--------------------------------------------------------------------------------------------
Stage Monitor 4
--------------------------------------------------------------------------------------------
149
1478
3591
3595
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
TOTAL COST OF PAGE OF $
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--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Fall wreaths RSAFS 26
--------------------------------------------------------------------------------------------
Fall Tree's 5
--------------------------------------------------------------------------------------------
Xmas Tree Stand 2
--------------------------------------------------------------------------------------------
Water Trough 1
--------------------------------------------------------------------------------------------
Xxxx Stands 16
--------------------------------------------------------------------------------------------
Antenna 4
--------------------------------------------------------------------------------------------
Yamaha Mixer 1
MC3210M
Console
--------------------------------------------------------------------------------------------
Table White 6' 1
--------------------------------------------------------------------------------------------
Fan 16" Lasio 2
--------------------------------------------------------------------------------------------
Fog Machine 2
Lamattie G3000
0507
0589
--------------------------------------------------------------------------------------------
Clear Com with 4
Headset
Ad51560
AD5156
Ad51572
Ad5171
--------------------------------------------------------------------------------------------
Clear Com 1
Phone AD51557
--------------------------------------------------------------------------------------------
Stage Monitor 2
EAW
--------------------------------------------------------------------------------------------
1486
1480
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Stage EAW 6
Monitor 1489
1489
1477
1484
3593
3596
--------------------------------------------------------------------------------------------
Side Fill PX 1560B 1601-1
--------------------------------------------------------------------------------------------
PX1560B 1062(1)
--------------------------------------------------------------------------------------------
Cable To stagecart 32 (input
Auto pilot and snake
console
--------------------------------------------------------------------------------------------
Clear Com 577241
SB412A
Switch Board
--------------------------------------------------------------------------------------------
Xxxxxxxx
XXX 000 -
X0000
--------------------------------------------------------------------------------------------
DFT Xmas 2
Tree's
--------------------------------------------------------------------------------------------
Flowers Poinsettas 11
--------------------------------------------------------------------------------------------
Microphones N/D 757B 3
--------------------------------------------------------------------------------------------
Sure Shore Beta 87 1
--------------------------------------------------------------------------------------------
Sm 58-L32 2
--------------------------------------------------------------------------------------------
Electrovoice 1
RC 20
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Microphone shore A98MK 1
--------------------------------------------------------------------------------------------
Microphone Stand 25900-57755 5
--------------------------------------------------------------------------------------------
21020-57755 4
--------------------------------------------------------------------------------------------
Direct Boxes Countryman 5
Associates
--------------------------------------------------------------------------------------------
EV ND757B 3
--------------------------------------------------------------------------------------------
Shore SM 87 1
--------------------------------------------------------------------------------------------
SM91A 1
--------------------------------------------------------------------------------------------
ADLS 12
--------------------------------------------------------------------------------------------
MicroP 1000
Par G4Q
--------------------------------------------------------------------------------------------
NSP Par Can Bulbs 38
--------------------------------------------------------------------------------------------
MFL Bulbs 5
--------------------------------------------------------------------------------------------
WFL 5
--------------------------------------------------------------------------------------------
TG Microphone 1
Beta 87 Wireless
--------------------------------------------------------------------------------------------
Xxxxxx 1
Beta 57 Wireless
--------------------------------------------------------------------------------------------
Spare Beta 87 2
Wireless
--------------------------------------------------------------------------------------------
Spare Beta 87 2
Wiureless
--------------------------------------------------------------------------------------------
Microphone 5
Mikropfon Stat IV
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
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AIC Adaptor by Shure PS30-6
Mic-Antenna-Wireless Systems - 16 units
PRSII Power Pack
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Cable #44 Super 25'
--------------------------------------------------------------------------------------------
14x13 Type
Sow A 90 o/c
--------------------------------------------------------------------------------------------
Triangle PWC-1LC 25'
--------------------------------------------------------------------------------------------
12/3 Type So 25'
P123
Xxx0X #00
--------------------------------------------------------------------------------------------
Cable #40 100'
--------------------------------------------------------------------------------------------
#41 100'
--------------------------------------------------------------------------------------------
#48 10'
--------------------------------------------------------------------------------------------
#61 6'
--------------------------------------------------------------------------------------------
#52 6'
--------------------------------------------------------------------------------------------
#44 6'
--------------------------------------------------------------------------------------------
#54 6'
--------------------------------------------------------------------------------------------
Pigtail Cable 5Q 1
--------------------------------------------------------------------------------------------
#63 1
#44 1
--------------------------------------------------------------------------------------------
#62 1
#45 1
--------------------------------------------------------------------------------------------
#47 1
#48 1
--------------------------------------------------------------------------------------------
#61 1
#60 1
--------------------------------------------------------------------------------------------
Cable Horizon Y 125'
Conductor cord
snake
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
INVENTORY SHEET
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
TOTAL COST OF PAGE OF $
--- ---
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
INVENTORY SHEET
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Snake Cable Horizon 4 1-50'
Conductor
Speaker
--------------------------------------------------------------------------------------------
1 Horizon 4 1-50'
Conductor
Speaker
--------------------------------------------------------------------------------------------
1 - xxx Horizon 1-50'
Conductor -
speaker
--------------------------------------------------------------------------------------------
Horizon 4 1-10'
Conductor
Speaker
--------------------------------------------------------------------------------------------
Horizon 4 1-30'
Conductor
Speaker
--------------------------------------------------------------------------------------------
2 - Horizon 1-30'
Conductor
Speaker
--------------------------------------------------------------------------------------------
1213 Type So 1-9'
P-123-Msha
--------------------------------------------------------------------------------------------
#53 Type Ms-HQ 1-10'
--------------------------------------------------------------------------------------------
#61 S-L 1-25'
Floor Acc
--------------------------------------------------------------------------------------------
#56 Type 1213 1-25'
Slow A-90C
--------------------------------------------------------------------------------------------
P123-70HS 1-25
HQ #61
--------------------------------------------------------------------------------------------
PigTail #58 1
--------------------------------------------------------------------------------------------
#57 1
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
#59 1
--------------------------------------------------------------------------------------------
Cable 2 Xxx-Horizon 1-25' 6
Y conductor chanel
snake
--------------------------------------------------------------------------------------------
Rapco OL Dea +4 1-10'
conductor
--------------------------------------------------------------------------------------------
Horizon Guitar 1-7'
Instrument
--------------------------------------------------------------------------------------------
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--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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----------------------------- -----------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Cable Cable sound flex red-yellow-
by rapco blue
--------------------------------------------------------------------------------------------
3-6' 18'
--------------------------------------------------------------------------------------------
Pro-plex
PC22G1
--------------------------------------------------------------------------------------------
22-Ang 125'
Low Cap
--------------------------------------------------------------------------------------------
#43 Tree 25'
--------------------------------------------------------------------------------------------
#63 10'
--------------------------------------------------------------------------------------------
#50 10'
--------------------------------------------------------------------------------------------
#52 10'
--------------------------------------------------------------------------------------------
#49 ACL - N.C. 10'
--------------------------------------------------------------------------------------------
#47 10'
--------------------------------------------------------------------------------------------
#45 Toner 10'
--------------------------------------------------------------------------------------------
#62 10'
--------------------------------------------------------------------------------------------
Horizon 4 100'
conductor
speaker
--------------------------------------------------------------------------------------------
#45 4'
--------------------------------------------------------------------------------------------
#60 4'
--------------------------------------------------------------------------------------------
Horizon 4 25'
Conductor
speaker
--------------------------------------------------------------------------------------------
Horizon 4 60'
conductor
speaker
--------------------------------------------------------------------------------------------
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--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
INVENTORY SHEET
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Cable Rapco Quad
RG-Plus
--------------------------------------------------------------------------------------------
Four Conductor 33' 20 pieces
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
UP Stage Left F1 63'
Cybex1
--------------------------------------------------------------------------------------------
Stage rights - DW 50'
--------------------------------------------------------------------------------------------
PSR Floor Cybeer
--------------------------------------------------------------------------------------------
TO AFL Cyber EX 150'
--------------------------------------------------------------------------------------------
Floor Cyber ASL 150'
--------------------------------------------------------------------------------------------
1273 25'
Type So
--------------------------------------------------------------------------------------------
DSR Cyber 50'
12/3 Pype So
NCOPERME
--------------------------------------------------------------------------------------------
#1-upstage L. 69'
Flcyber Ex
--------------------------------------------------------------------------------------------
#63 50'
PE, So, 90 o/c
--------------------------------------------------------------------------------------------
Dyna Peeme
3 Conn-12
--------------------------------------------------------------------------------------------
Type 50'
So #62
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
#54 12/3 Type 10'
SoP123-HSH
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
15 A250V
20GA-W1
--------------------------------------------------------------------------------------------
Plug-125V 50'
--------------------------------------------------------------------------------------------
#47-500V 7'
Supercord
--------------------------------------------------------------------------------------------
#48 Type-So 10'
P123-MSHA
--------------------------------------------------------------------------------------------
Xxxxx 1413 50
Type-Sow
A-Cul7
--------------------------------------------------------------------------------------------
Xxxxx 12/3 2 7' 14'
Type Sow
90% PL127
70 MSHA
--------------------------------------------------------------------------------------------
Pigtail 1
F20 P Conn
2420
--------------------------------------------------------------------------------------------
12/3 25'
Type S1
--------------------------------------------------------------------------------------------
Pro-Plex
Pg 22512
--------------------------------------------------------------------------------------------
22 Aw7 125'
3 Pair
--------------------------------------------------------------------------------------------
WY Bon 50'
Auto-Pilot
--------------------------------------------------------------------------------------------
Cord Mil-12-3ST 50'
Style-Ext
--------------------------------------------------------------------------------------------
CSA Type
20-90E
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
INVENTORY SHEET
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
FT 2 Xxxxx 30'
12/3
--------------------------------------------------------------------------------------------
Sound Cords Sound 7'
--------------------------------------------------------------------------------------------
" 7'
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
TOTAL COST OF PAGE OF $
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--------------------------------------------------------------------------------------------
*Miscellaneous, Assorted Microphone Cables
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Sony A-7 Density 1
QX0040 A/DD/A
76 Conductor #
--------------------------------------------------------------------------------------------
Xxxxxx Power Conditioner 1
PL8 Conditioner and
Light Module
--------------------------------------------------------------------------------------------
Klark Teknik 2
DN 514 Quad
Auto Gate
--------------------------------------------------------------------------------------------
Behringer Composer 5 House
Audio 1 Monitor
Interactive
--------------------------------------------------------------------------------------------
Dynamic Pro 5
MDX 2000
--------------------------------------------------------------------------------------------
Yamaha Parametric (2)
Equalizer
YOP2006
--------------------------------------------------------------------------------------------
862 Sonic 2
Maximizer BBF
--------------------------------------------------------------------------------------------
Xxxxxx PL8 Poner 1
Conditoner
and Light Module
--------------------------------------------------------------------------------------------
Xxxxxx Regulation AC LINE 1
Module AR-117
--------------------------------------------------------------------------------------------
Eventide Harmonizer Model 1
Ultra H3000-Disk
--------------------------------------------------------------------------------------------
Yamaha Multi-Effect 4
SPX990 Processor
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Lexicon Pigtail Effect 1
LXP15 Processor
--------------------------------------------------------------------------------------------
Audio Control 1
Industrial SA-3050
Real Time Analyzer
--------------------------------------------------------------------------------------------
Hackie CR 1604 16
Design Channel
--------------------------------------------------------------------------------------------
Micline 1
Mixer
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Desk Organizer Dark Plastic Desk 2
Organizer
--------------------------------------------------------------------------------------------
PaperClip Holder Plastic Paper Clip 1
Holder
--------------------------------------------------------------------------------------------
paperclip holder Dark Plastic Pencil 1
Holder
--------------------------------------------------------------------------------------------
tape dispenser Scotch Tap Tan 2
Dispenser
--------------------------------------------------------------------------------------------
wastebasket Ivory Plastic 5
Wastebasket
--------------------------------------------------------------------------------------------
36x48 cork Bulletin Board 1
--------------------------------------------------------------------------------------------
24x36 cork Bulletin Board 1
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
KeyTranc VeryBoard 1
V950900231
--------------------------------------------------------------------------------------------
computer and ATT 1
keyboard JVP71341
--------------------------------------------------------------------------------------------
3099-K440 8004 1
ATT keyboard
--------------------------------------------------------------------------------------------
hardrive 480 Globalyst 1
ATT 515
--------------------------------------------------------------------------------------------
desk xxxx/90 degree 2
--------------------------------------------------------------------------------------------
filing 2 drawer file 2
cabinets cabinets
--------------------------------------------------------------------------------------------
refrig. bar style 3.5 foot 1
white
--------------------------------------------------------------------------------------------
back up for APC 280 1
computer
--------------------------------------------------------------------------------------------
power stick Multi plug unit 1
surge
--------------------------------------------------------------------------------------------
surge arrest 1
--------------------------------------------------------------------------------------------
shelf standing metal 1
(2 shelf) unit
--------------------------------------------------------------------------------------------
garbage can 2.5 feet square 1
metal creme plastic 1
--------------------------------------------------------------------------------------------
chair adjustable office 1
chair
-------------------------------------------------------------------------------------------
grey metal padded 1
seats
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
INVENTORY SHEET
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
phone MT multi line 2
information
center mls-18D
--------------------------------------------------------------------------------------------
paper trays plastic/desk top 9
desk plastic organizer 1
directory
--------------------------------------------------------------------------------------------
file holder metal/black 9
coffee maker westbend 10 cup 1
--------------------------------------------------------------------------------------------
intercom clear com (model 1
system 500)
2/headset
--------------------------------------------------------------------------------------------
SLIK Typed for 1
Extension cord autolights
6ft xxxxx 1
--------------------------------------------------------------------------------------------
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Chair Maroon Fabric 2
Grey Charco
frame
--------------------------------------------------------------------------------------------
Chair Maroon fabric 1
Xxxx Frame
--------------------------------------------------------------------------------------------
Chair Xxxx Plastic 2
Stack Chair
--------------------------------------------------------------------------------------------
Phone AT&T 1
--------------------------------------------------------------------------------------------
Waste yellow basket 1
------------------------------------------------------------------------------------------
10 foot white cabinet 1
--------------------------------------------------------------------------------------------
6 fold chair padded 6 3 grey
3 xxxxx
--------------------------------------------------------------------------------------------
xxxx stack chair 1
-----------------------------------------------------------------------------------------
Xxxxxxx Ref. Freezer 1
LA3402584
--------------------------------------------------------------------------------------------
Soapdispenser 1
--------------------------------------------------------------------------------------------
Towel holder 1
--------------------------------------------------------------------------------------------
Coffee Maker Yellow 1
--------------------------------------------------------------------------------------------
Yellow waste basket 2
--------------------------------------------------------------------------------------------
48x48 bulletin board 1
--------------------------------------------------------------------------------------------
First Aid 1
Blue/Red Wall Kits
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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----------------------------- -----------------------------------------
DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Lasko-Fan 16 inches 1
oscillating fan
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
INVENTORY SHEET
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
land carts for 1
moving
--------------------------------------------------------------------------------------------
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
wood benches oak four leg 17
3 m
cryroom
--------------------------------------------------------------------------------------------
xxxxx steel aggregate panels 7
--------------------------------------------------------------------------------------------
KF 776 wood 15
--------------------------------------------------------------------------------------------
xxxxxx xxxx with xxx 60
--------------------------------------------------------------------------------------------
custom made formica 1
--------------------------------------------------------------------------------------------
lower 310 side chairs 25
--------------------------------------------------------------------------------------------
burgundy velvet ropes 16
--------------------------------------------------------------------------------------------
gas logs 6' 1 set
--------------------------------------------------------------------------------------------
xxxxxx xxxx ticket/door 2
--------------------------------------------------------------------------------------------
plants and large 17 inch 12
containers med 14 inch 5
--------------------------------------------------------------------------------------------
small 10 inch 18
4
--------------------------------------------------------------------------------------------
utility lobby) wet floor yellow 7
--------------------------------------------------------------------------------------------
mops mop bucket mops 2
1
--------------------------------------------------------------------------------------------
dust pale dust pale and small broom 1
--------------------------------------------------------------------------------------------
?? 1
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
?? 2
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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--------------------------------------------------------------------------------------------
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DEPARTMENT DATE
---------------------------- -----------------------------------------
--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
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Shampoo Tornado carpet shampoo 1
--------------------------------------------------------------------------------------------
Husuoina 1
140B
--------------------------------------------------------------------------------------------
gas container red plastic gas tank 1
--------------------------------------------------------------------------------------------
shampoo machine Thermas 1
large shampoo
--------------------------------------------------------------------------------------------
vacuum cleaner sharp-EC-12 TXC 1
Sharp-EX-12-TXC 1
Sharp-EC-12TXT7 1
--------------------------------------------------------------------------------------------
dolly red/two wheel metal 1
--------------------------------------------------------------------------------------------
paper towel prefile #56700 5 (1 uncased)
dispenser
--------------------------------------------------------------------------------------------
toilet seat profile 7
dispenser #74250 1 cover
#74250 1 case low
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ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
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stove VB503GV 1
--------------------------------------------------------------------------------------------
refrig. GE GM759104 1
--------------------------------------------------------------------------------------------
Couch Tan Leather 1
3 pillow 2 dec. pillow
--------------------------------------------------------------------------------------------
chair oversize floral green-pink 1
leaf
--------------------------------------------------------------------------------------------
chair straight purple back chair 1
--------------------------------------------------------------------------------------------
table oval glasstop iron legs 1
--------------------------------------------------------------------------------------------
table side table made of iron 1
--------------------------------------------------------------------------------------------
rug oriental rug pink floral 1
--------------------------------------------------------------------------------------------
table Inntadf 1
1 draw maple
--------------------------------------------------------------------------------------------
table 4 foot x 1 foot 1
maple table wood
--------------------------------------------------------------------------------------------
lamps table lamps 3
black/gold, green/white;
rust/white
--------------------------------------------------------------------------------------------
lamp floor lamp gold and navy 1
--------------------------------------------------------------------------------------------
table iron/glass wall table 1
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stool bar stool leather/gold 2
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ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
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tv magnavox color 20" 44168723 1
--------------------------------------------------------------------------------------------
DSS Satelite RCA #527353228 1
--------------------------------------------------------------------------------------------
TV Magnavox with remote 1
30008717
--------------------------------------------------------------------------------------------
DMX Com stream DR200 Digital Audio 1
Receiver
--------------------------------------------------------------------------------------------
Couch Green with Oak wood 1
Chair 1
--------------------------------------------------------------------------------------------
Table Inntable Oak 1
--------------------------------------------------------------------------------------------
Table Coffee Table Oak 1
--------------------------------------------------------------------------------------------
Chair maroon/Black 2
--------------------------------------------------------------------------------------------
Lamp Green/yellow 1
--------------------------------------------------------------------------------------------
wastebasket 1
--------------------------------------------------------------------------------------------
towel 1
dispenser
--------------------------------------------------------------------------------------------
Bulletin 24x24 1
Board cork
--------------------------------------------------------------------------------------------
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ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
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Desk Xxxx wall unit desk with shelf 2
--------------------------------------------------------------------------------------------
xxxxx xxxxxx XE 1950 #2127397 1
--------------------------------------------------------------------------------------------
2 drawer letter size cabinets 2
--------------------------------------------------------------------------------------------
jiffy steamer J39450 1
--------------------------------------------------------------------------------------------
double wall shelf 2
metal and press board
--------------------------------------------------------------------------------------------
two step-stool 1
#1001 kickstep
--------------------------------------------------------------------------------------------
sharp (2 color) 1
#50014815
--------------------------------------------------------------------------------------------
CTX 14516 1
BCS computer (keybaord, monitor,
APC 280, surge protector
--------------------------------------------------------------------------------------------
Rubbermaid M70-4212-00 1
--------------------------------------------------------------------------------------------
Formica/wood 8
2 door wallcases
--------------------------------------------------------------------------------------------
woodstone base
glass cube display cases
--------------------------------------------------------------------------------------------
12 cube large 2
12 cube small 2
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PER COST RETAIL
UNIT PRICE
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30 cube small 2
8 cube small 2
--------------------------------------------------------------------------------------------
40 cube small oval 2
40 cube glass display 1
--------------------------------------------------------------------------------------------
circular glass display 2
4 cubes high
--------------------------------------------------------------------------------------------
vertical glass display 6 cubes 2
--------------------------------------------------------------------------------------------
formica wood display cases 13
(diff. sizes) 2 back case
--------------------------------------------------------------------------------------------
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ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
Tables Pressboard top metal base 35
--------------------------------------------------------------------------------------------
Chairs material (maroon) 29
grey (metal)
--------------------------------------------------------------------------------------------
Christmas supplies
--------------------------------------------------------------------------------------------
Gian Christmas Green Christmas Wreath Ribbons 10
Wreaths
--------------------------------------------------------------------------------------------
Small Tree and stands Green 4 kg stand 3
--------------------------------------------------------------------------------------------
Candle candle arrangement 2
--------------------------------------------------------------------------------------------
New Year's party favors 13
--------------------------------------------------------------------------------------------
boxes of decoration 6
--------------------------------------------------------------------------------------------
ribbons for tree toppers 2
--------------------------------------------------------------------------------------------
country garden plow with dec. 4
--------------------------------------------------------------------------------------------
bags of tree ornaments 8
--------------------------------------------------------------------------------------------
shepherd boys and chimney 2
--------------------------------------------------------------------------------------------
lights 1
--------------------------------------------------------------------------------------------
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--------------------------------------------------------------------------------------------
ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
M/M E03600QL 2
CTX color 2
--------------------------------------------------------------------------------------------
APC 280 3.5 and tape
250mm (BES) 1
--------------------------------------------------------------------------------------------
plug and power supply 2
--------------------------------------------------------------------------------------------
65 robotics 2
fax modem
--------------------------------------------------------------------------------------------
HP Laser Jet 4L 1
--------------------------------------------------------------------------------------------
USCC 659254
serial #
--------------------------------------------------------------------------------------------
computer DCS 280 1
Colorado 350
3.5 dish/cd drive
--------------------------------------------------------------------------------------------
calculator sharp 2 color 1
E1-26306II
--------------------------------------------------------------------------------------------
calculator Xxxxxx 1560 1
--------------------------------------------------------------------------------------------
back machine paymaster hand crank 1
--------------------------------------------------------------------------------------------
speakers computer lab tec LCS-150 2
--------------------------------------------------------------------------------------------
speakers Bose wall speakers (black) 2
--------------------------------------------------------------------------------------------
Infotran. Universal Communications 1
Interface
--------------------------------------------------------------------------------------------
File cabinet 4 draws 1
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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UNIT PRICE
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DEPARTMENT DATE
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ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
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Computer Model E447AU 1
KeyGuard 4225A001200306 1
930055107
--------------------------------------------------------------------------------------------
Computer Keyboard 4225A00121893 1
930037040 1
--------------------------------------------------------------------------------------------
Computer Keyboard 422A001200295 1
930036326 1
--------------------------------------------------------------------------------------------
Computer Keyboard 422A001200295 1
93003626 1
--------------------------------------------------------------------------------------------
1BM Lexmark Pr.Nier FCC:Bj1 1
2380-001
--------------------------------------------------------------------------------------------
1BM Lexmark Printer FRR: BJ1 1
2380-001
--------------------------------------------------------------------------------------------
1BM Lexmark Printer FCC-BJ1 1
2380-001
--------------------------------------------------------------------------------------------
1BM FCC BJ1 1
Lexmark 2380001
Printer
--------------------------------------------------------------------------------------------
Chair adjustable rust/material 3
grey frame
--------------------------------------------------------------------------------------------
stands ticket stands for printers 4
--------------------------------------------------------------------------------------------
easy computer to operate ticket
systems computers
--------------------------------------------------------------------------------------------
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ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
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4 5010073
3 5010072
--------------------------------------------------------------------------------------------
2 5010071
1 5010074
--------------------------------------------------------------------------------------------
Pencil electric 9781647 1
sharpner
--------------------------------------------------------------------------------------------
4 phones white mls 1bd att 4
4 headgear black KS 23529-L10 4
--------------------------------------------------------------------------------------------
Quick card machine check 67000190 680001898 (2)
printer 250 veriphone 56 6 (2)
011510357 017125230
--------------------------------------------------------------------------------------------
Texas Instruments T15032 1
0395C
--------------------------------------------------------------------------------------------
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Trash canscreme plastic (3)
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ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
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Desk Freestanding workstation desk 3
(phone booths)
--------------------------------------------------------------------------------------------
chair task chair 790166 3
maroon fabric/xxxx frame
--------------------------------------------------------------------------------------------
chair vinyl upholstered stacking 1
chairs/xxxxx
--------------------------------------------------------------------------------------------
phone A77 telephone 3
--------------------------------------------------------------------------------------------
headset walk and talk portable headset ATT 3
--------------------------------------------------------------------------------------------
computers monitors CTX color 3
Keyboards - C168036004 3
harddrive 486/60 3.5 drive 3
APC 286 Backups 3
--------------------------------------------------------------------------------------------
mouse 3
--------------------------------------------------------------------------------------------
headset multiline 3
--------------------------------------------------------------------------------------------
word processor 1
XE 1950
--------------------------------------------------------------------------------------------
Boards cork oak bulletin boards 2
--------------------------------------------------------------------------------------------
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ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
--------------------------------------------------------------------------------------------
safe xxxxx/tan floor 1
safe 2x2x3.5
--------------------------------------------------------------------------------------------
free standing 2
desk with
cabinets at top
and the drawer
at bottom
--------------------------------------------------------------------------------------------
desk chair 1
material wood
--------------------------------------------------------------------------------------------
straight chair 1
xxxxx material
back and seat
--------------------------------------------------------------------------------------------
2 drawer file 1
cabinet (grey)
--------------------------------------------------------------------------------------------
monitor (CTX 1
color
--------------------------------------------------------------------------------------------
keyboard 1
411019024
--------------------------------------------------------------------------------------------
hard drive 1
424190275
--------------------------------------------------------------------------------------------
printer lexmark 1
item 2380
--------------------------------------------------------------------------------------------
quick check 1
verfione printer
250 1
--------------------------------------------------------------------------------------------
sharp E1-21026 2
EL-263OGII
--------------------------------------------------------------------------------------------
ATI MLS 8D 1
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
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ITEM DESCRIPTION UNITS COST TOTAL UNIT
PER COST RETAIL
UNIT PRICE
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display chrome glass 4
racks circular display
racks
--------------------------------------------------------------------------------------------
glass 4 shelf enclosed 1
display case
case
--------------------------------------------------------------------------------------------
postcard black 2
stand creme
--------------------------------------------------------------------------------------------
display large 2
shelf shelf/drawers
cubes behind
counter
--------------------------------------------------------------------------------------------
large shelf 1
behind counter
--------------------------------------------------------------------------------------------
jewelry cases 3
formica counters 2
--------------------------------------------------------------------------------------------
cash TEC MA 1300 2
register 5D201634
5D201696
--------------------------------------------------------------------------------------------
storage shelves 1 double
room metal/wood 2 single
shelves
--------------------------------------------------------------------------------------------
chair chair with boot 1
rest xxxx maroon
917AC
--------------------------------------------------------------------------------------------
chair office chair in 1
office
xxxx/maroon
11335
--------------------------------------------------------------------------------------------
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ITEM DESCRIPTION UNITS COST TOTAL UNIT
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TV JVC mts 1
(surround code
TIN 208450)
--------------------------------------------------------------------------------------------
logs gas logs 6' 1 set
--------------------------------------------------------------------------------------------
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Headphones ATT KS23529- 3 Joys office
L10
#KS23822-L7
#KS23529-L10
--------------------------------------------------------------------------------------------
Calculator Sharp EL21926 1
--------------------------------------------------------------------------------------------
Desk module 38852 1
grey/laminated
cherry
--------------------------------------------------------------------------------------------
speaker clear com 1
speaker station
KB112
--------------------------------------------------------------------------------------------
desk module 38080 1
grey
metal/laminated
cherry top
--------------------------------------------------------------------------------------------
phone ATT MLS 18D 1
--------------------------------------------------------------------------------------------
footstool black/wheels 2
--------------------------------------------------------------------------------------------
microphones shore sm87 3
--------------------------------------------------------------------------------------------
beta 87 1
sm81 2
--------------------------------------------------------------------------------------------
sm57 3
sm58 2
--------------------------------------------------------------------------------------------
sennheiser/black 2
md4210/nr1156
85
md
4210/nr115936
--------------------------------------------------------------------------------------------
EV n/o 757B 3
shore sm91 1
--------------------------------------------------------------------------------------------
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ITEM DESCRIPTION UNITS COST TOTAL UNIT
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UNIT PRICE
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shure A98SPM 4
Shure Beta 87 4
wireless
--------------------------------------------------------------------------------------------
sCrown CM 4
312E
--------------------------------------------------------------------------------------------
Direct Count Type 85 Fet 4
Boxes Associates
--------------------------------------------------------------------------------------------
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EXHIBIT C
Copy of contract with Country Tonite Enterprises providing for
performance of the "Country Tonite Show" on the Premises throughout
the term of this Lease Agreement.
EXHIBIT 2
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
CONTRACT TO PRODUCE SHOW
BETWEEN
COUNTRY TONITE ENTERPRISES, INC.
AND
COUNTRY TONITE THEATRE, L.L.C.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
This contract to Produce Show ("Contract") is by and between Country
Tonite Theatre, L.L.C., hereinafter referred to as "Theater," and Country
Tonite Enterprises, Inc., hereinafter referred to as "Producer." Producer
agrees to produce and present for Theater a show known as "Country Tonite"
hereinafter referred to as "Show" in the Country Tonite Theatre located at
2249 Parkway in Pigeon Forge, Tennessee. Said show will be produced and
presented under the terms and conditions of this Contract.
RECITALS
1. CONTRACT TERM. Producer agrees to produce and present the Show for
a term that is coextensive with the existence of Country Tonite Theatre,
L.L.C., a Tennessee limited liability company, pursuant to its Operating
Agreement, dated as of September 24th, 1996 (the "Operating Agreement").
2. THE "SHOW" DEFINED. The Show will have a running time of
one-and-one-half to two hours. It will consist of at least five singers,
eight dancers and one or two specialty acts performing in a structured
Country & Western music variety show. The Show will also consist of live
music with a seven to a twelve-piece band. In addition to performers and
artists, CTE will provide one (1) administrative person and one (1) wardrobe
attendant to facilitate the production of the show (collectively "Producer
Personnel.") The Show shall be a first rate production consistent with the
quality of other variety shows currently being performed by CTE. Producer
may vary the format from time to time in the best interest of the Show and
the Theater.
3. WEEK DEFINED. A "week" is herein defined as a six-day period of a
calendar week (Sunday through Saturday) plus one nonperformance dark night to
be designated by Theater. It is hereby acknowledged that a week will include
up to twelve (12) performances per week. The Show times and days will be
designated in writing by Theater, provided that Producer shall not be
required to present the show between January 1 and March 1 of each year.
Producer shall not be required to present the show a minimum number of times
per week, but Producer shall be required to present the show an average eight
(8) times per week for the period from March 15 through December 31 in each
year. Theatre agrees not to do over twelve (12) shows per week without
Xxxxxxxx Ventures, LLC's consent, which shall not be unreasonably withheld.
If show is presented more than twelve (12) times in one week, Producer shall
be paid $3,750.00 for each show in a week over twelve (12).
4. RIGHTS IN THE PRODUCTION. Producer will own and retain all rights
in and to the title, format, logo, script continuity, choreography, and all
other elements of the Show. Notwithstanding the foregoing, Producer grants
to Theater a license for the Term of this
Contract, including any extensions thereof to utilize the Show's title, logo,
video, or audio excerpts or any other reference to or description of the Show
in the Theater, promotion, marketing or public relations materials.
5. EXCLUSIVITY. Producer agrees that during the Term of this
contract, and any extensions thereof, Producer shall not compete with the
Theater directly or indirectly within Xxxxxx County, Tennessee or any
adjoining county. However, from time to time, it is hereby understood that
Producer may be airing certain excerpts from the Show for the purpose of
marketing, merchandising and advertising the Show. If a taped excerpt of the
Show is utilized on television, for purposes other than marketing and
advertising, for profit, Producer shall pay a fee of $5,000.00 to Theater.
6. CONSIDERATION AND METHOD OF PAYMENT.
a. Theater shall pay Producer a fee of $42,500 per week during
the term, provided that if less than six (6) shows are presented in any week,
subject to the next sentence, the amount paid to Producer for such week shall
be reduced by $7,083.33 for each show less than six (6) that is presented.
If the show is presented for any partial week at the beginning or end of a
performance season, such fee shall be pro-rated based on days performed, but
in no event shall any payment be made between January 1 and March 1 of any
year. Payment shall be made on a weekly basis to Producer and made available
to Producer each Monday morning before 10:00 a.m., Knoxville time, following
the week's performance. Theater will be in default if payment is not made in
full within ten (10) days of written notice of such nonpayment as provided
herein.
b. The fee provided for in subparagraph (a) of this paragraph
shall be adjusted as of March 1 of each year, beginning March 1, 1998, for
"cost of living" changes in accord with the Consumer Price Index for Urban
Wage Earners and Clerical Workers (all items) for the Southern United States
published by the Southern Office of the United States Department of Labor,
Bureau of Labor Statistics (the "index"). Each adjustment shall be made by
multiplying the weekly payment for the last full week of the prior calendar
year by a fraction, the numerator which shall be the most recent index in
effect at the time of such adjustment, and the denominator of which shall be
the index for January, 1997. The product shall be the adjusted weekly payment
until the next adjustment occurs. If the index changes so that the base
(denominator) differs from that originally used, the index shall be converted
in accordance with the conversion factor published by the United States
Department of Labor, Bureau of Labor Statistics. If the index is
discontinued or revised during the term hereof, such other government index
or computation with which it is replaced shall be used in order to obtain
substantially the same result as would have been obtained if the index had
not been discontinued or revised.
c. As further consideration hereunder, Producer shall have the
exclusive right to film and/or video tape the Show or excerpts thereof and
shall make such film and/or video tape available to Theatre at Producer's
actual cost. All income from sales or rental of such film or video tape sold
in Xxxxxx County shall inure to the benefit of the Theater.
7. PRICE AND REVENUE. Theater shall establish the admission price for
the Show and the cost to the audience of any and all beverage and food
service and shall retain all revenues therefrom. Theater agrees to pay all
taxes on admissions to Show, plus cabaret taxes and sales taxes as well as
ASCAP, SESAC and BMI licensing fees.
8. CERTAIN PRODUCTION COSTS.
a. Theater shall provide, at its expense, lighting and sound
systems, stage sets, house equipment, related equipment, wardrobe maintenance
including storage for same for Show's performers, stage configuration,
dressing rooms, and projection system and screen. Theater shall provide the
necessary personnel to handle stage functions, including but not limited to
stage manager, assistant stage manager, spotlight operators, and lighting and
sound technicians. Producer acknowledges that the facilities and equipment
located at 2249 Parkway in Pigeon Forge, Tennessee are suitable for the
production of the show in accordance with the terms of this Agreement.
b. Producer shall provide, at its sole expense:
(1) All props required for the Show;
(2) All costumes for the Show's performers;
(3) All special effects for the Show which are not standard and
ordinarily existent in the Theater's showroom.
9. REHEARSAL AND AUDITIONS.
a. Theater shall make the showroom available to Producer for
rehearsals and auditions upon reasonable notice by Producer and shall make such
stage lighting and sound personnel as may be reasonably necessary thereto
available in connection therewith.
b. The Theater reserves the right to utilize the showroom for
entertainment and other purposes during all daytime hours and during any
evenings or other times the Show is not presented or when the auditorium is not
in use during mutually agreed rehearsal and audition times described in the
preceding subparagraph.
c. Theater agrees to make the auditorium available for rehearsal and
taping of television commercials.
10. TERMINATION. The Producer may terminate this Agreement if any of the
following events shall occur.
a. Failure by Theatre to pay, in full, on the dates due, any
payment due hereunder, provided, however, that Theatre shall have ten (10)
days following written notice from Producer to cure such default.
b. Failure by Theatre to observe or perform any of the other
terms, covenants, agreements or conditions contained in this Agreement for a
period of thirty (30) days after written notice from Producer specifying such
default, provided, if any such default cannot be completely cured within such
30-day period, despite Theatre's diligent, best-faith effort, commenced
immediately, then Theatre shall have a reasonable time to complete the cure
of such default, for a period not to exceed ninety (90) days.
c. Either the Lease dated as of the date hereof between X.
XxxXxxxxx Xxxxxxxx, M.D., and the Theatre or the Operating Agreement of the
Theatre is terminated.
The Producer's right to terminate this Agreement under this
paragraph is in addition to such other rights that the Producer may have at
law or equity.
The Theatre may terminate this Agreement if any of the following
events shall occur.
a. Failure by Producer to observe or perform any of the other
terms, covenants, agreements or conditions contained in this Agreement for a
period of thirty (30) days after written notice from Theatre specifying such
default, provided, if any such default cannot be completely cured within
such 30-day period, despite Producer's diligent, best-faith effort, commenced
immediately, then Producer shall have a reasonable time to complete the cure
of such default, for a period not to exceed ninety (90) days.
b. Either the Lease dated as of the date hereof between X.
XxxXxxxxx Xxxxxxxx, M.D., and the Theatre or the Operating Agreement of the
Theatre is terminated.
The Theater's right to terminate this Agreement under this paragraph is
in addition to such other rights that the Theater may have at law or equity.
Any notices given hereunder shall also be given to Xxxxxxxx Ventures,
LLC, in the manner and at the address provided in the Operating Agreement.
10. CERTAIN PROHIBITIONS. Upon the termination of this Agreement
Theatre agrees not to:
a. for a period of one (1) year after termination of this
Agreement, produce either directly or indirectly or rent its property to any
person or entity producing, a country and eastern rock music variety shown
which uses the word "County" in its name or in any trade name or trademark.
b. for a period of one (1) year after termination of this
Agreement, hire any person who was an employee of the Producer or any
affiliated entity within the one-year period prior to the termination of this
Agreement; or
c. violate any copyright, trademark or common law intellectual
property rights of CTE or any affiliated entity.
The provisions of this paragraph shall survive the termination of this
Agreement.
12. PRODUCER PERSONNEL. Producer shall require and assure that all
Producer Personnel shall at all times perform his/her services in a highly
professional manner. While on the premises of the Theatre, Producer
Personnel shall conduct themselves in an appropriate and dignified manner,
using professional discretion at all times. Producer is responsible for
assuring that Producer Personnel and all persons performing services for
Producer in connection with this agreement are subject to, and comply fully
with, all terms and conditions of this Agreement.
13. CANCELLATION OF PERFORMANCE BY THEATRE. Theatre shall have the
right to cancel any performance of the Show, or any portion thereof, should
extraordinary
conditions exist which include, but are not limited to: riot, civil disorder,
act(s) of God, strike, act of any federal, state or local instruments,
rebellions, bomb threats, or any natural disaster.
14. PUBLICITY. Producer shall require all performers in the Show to be
available to Theater when requested from time to tome, for, among other
things, publicity photographs and interview . All such services shall be
rendered without any kind of cost or charge to Theater except that the
Theater shall reimburse for travel, as required by the Theater or may pay the
entertainer a fair market hourly rate for any material time. Producer
agrees, for itself and on behalf of all performers in the Show, that such
photographs and interview material may be used by Theater for any promotional
and publicity purposes as Theater shall determine for the term of this
agreement in its sole and absolute discretion; and Producer, for itself and
on behalf of its performers, completely releases, Theater from any liability
resulting from the use of such material. All promotional and publicity
materials created at the expense or through the effort of Theater and
approved by the Producer shall be the sole property of Theater, and Producer
agrees to sign and to require its performers to sign, as may be reasonably
determined, any and all releases, acknowledgements or such other
documentations as Theater may request from time to time in connection with.
15. TAXES AND INSURANCE. Producer shall be solely responsible for and
shall pay when due all federal income tax withholding, FICA, social security,
payment of workers' compensation where required by law and payroll taxes on
behalf of Producerj Personnel. Producer shall provide evidence satisfactory
to Theater that worker's compensation insurance coverage is being carried by
Producer and, when requested by Theater, evidence satisfactory to Theater
that payment of all the foregoing payroll burden has been made. Each party
to this contract hereby waives its right to subrogation.
16. INDEPENDENT CONTRACTOR. Producer is and shall be in the
performance of all work, services and activities under this Agreement an
independent contractor. No term or condition under this Agreement nor any
method or manner of payment hereunder shall create any relationship between
Theater and Producer other than as expressed in this paragraph. Producer
personnel shall not in any way, at any time, or under any circumstances, be
or be construed to be employees, agents, representatives or personnel of
Theater.
17. INDEMNIFICATION. Producer shall defend, indemnity, and hold
Theater completely free and harmless from and against any and all claims,
demands, suits and actions which are the result of negligence by anyone not a
party to this Agreement for loss, injury, damage, or liability from bodily
injury and property damage arising directly or indirectly out of Producer's
negligence with respect to performance of the Show or of this Agreement.
Producer shall carry commercial liability insurance to insure against such
risks.
18. PARKING. Theatre shall make parking available for the show to the
full extent that parking is available to the Theatre under its lease of the
property under which the Show will be permitted.
19. MISCELLANEOUS PROVISIONS
a. Time is of the essence of this Agreement and the performance
of each and every provisions hereof.
b. Except as otherwise provided herein, this Agreement shall be
binding upon and shall inure to the benefit of the parties, their permitted
successors and assigns.
c. Whenever the context so requires, the use of any gender shall
be applicable to all genders, the singular number shall include the plural
and the plural gender.
d. The law of the State of Tennessee shall govern the validity,
performance and enforcement of this Agreement.
e. If either party to this Agreement shall institute any action
or proceeding under the provisions of this Agreement, the prevailing party in
such action or proceeding shall be entitled to recover all of its costs and
reasonable attorney's fees.
f. The failure of Theater to insist upon performance of any of
the provisions of this Agreement in any one or more instances shall not be a
waiver thereafter of its right to full performance of all the provisions of
this Agreement when any performance is due. No waiver of a breach of any of
the covenants, conditions, terms of provisions of this Agreement shall be
construed to be a waiver of any succeeding breach of the same of any other
covenant, condition, term or provisions. All rights and remedies created by
this Agreement are cumulative and the use of one remedy shall not be taken to
exclude or waive the right to the use of another.
g. In case provision contained in this Agreement shall be held to
be illegal, invalid or unenforceable, the legality, validity and
enforceability of all remaining provisions shall not be in any way affected
of impaired thereby.
h. Captions and/or headings have been inserted for convenience of
reference only and are not to be construed or considered to be a part hereof
and shall not in any way modify, restrict or amend any of the terms or
provisions hereof.
Executed this 24th day of September, 1996.
COUNTY TONITE THEATRE, LLC. COUNTY TONITE ENTERPRISES, INC.
/s/ XXXX X. XXXXXX /s/ XXXX X. XXXXXX
-------------------------------- --------------------------------
Xxxx X. Xxxxxx, Chief Manager Xxxx X. Xxxxxx, Chief Manager
EXHIBIT D
LIST OF ASSUMED EQUIPMENT LEASES AND MONTHLY AMOUNTS DUE
LESSOR PURPOSE AMOUNTS DUE DATE
------ ------- ------- --------
Citizens National Sound & lighting $16,620.17 20th of month
Bank equipment
Citizens National Computers $ 510.16 27th of month
Bank
Associates Leasing Walkie-talkies $ 320.99 27th of month
AT&T Capital Fax/Copier $ 240.35 28th of month
Leasing Services,
Inc.
AT&T Credit Telephone $ 616.18 27th of month
Corporation
-----------------
* Lessee shall have no rights in the video equipment (recorders, cameras,
screens, and any and all related equipment) currently used in the theater.
EXHIBIT E
Encumbrances
1. All encumbrances listed in Lessor's title insurance policy issued by
Lawyers Title Insurance Corporation (Policy #113-00-997074) attached
hereto as EXHIBIT E-1.
2. A disputed lien asserted by Creative Structures, Inc. filed in the Xxxxxx
County Register of Deeds Office on July 2, 1996. Lessor covenants that
this item will be released or removed by bond by January 15, 1997.
3. A deed of trust in favor of SunTrust National Bank of East Tennessee and
a deed of trust in favor of Union Planters Bank.
EXHIBIT E-1
Lawyers Title
Insurance Corporation
National Headquarters
Richmond, Virginia
________________________________
Owner's Policy Number
113 - 00 - 997074
________________________________
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED
IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, LAWYERS TITLE INSURANCE
CORPORATION, a Virginia corporation, herein called the Company, insures, as of
Date of Policy shown in Schedule A, against loss or damage, not exceeding the
Amount of Insurance stated in Schedule A, sustained or incurred by the insured
by reason of:
1. Title to the estate or interest described in Schedule A being vested
other than as stated therein;
2. Any defect in or lien or encumbrance on the title;
3. Unmarketability of the title;
4. Lack of a right of access to and from the land.
The Company will also pay the costs, attorneys' fees and expenses incurred in
defense of the title, as insured, but only to the extent provided in the
Conditions and Stipulations.
IN WITNESS WHEREOF the Company has caused this policy to be signed and sealed,
to be valid when Schedule A is countersigned by an authorized officer or agent
of the Company, all in accordance with its By-Laws.
LAWYERS TITLE INSURANCE CORPORATION
Attest: By: /s/ Xxxxx X. Xxxxxx
Secretary President
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this
policy and the Company will not pay loss or damage, costs, attorneys' fees or
expenses which arises by reason of:
(a) Any law, ordinance or governmental regulation (including but not limited to
building and zoning laws, ordinances, or regulations) restricting,
regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment
of the land; (ii) the character, dimensions or location of any improvement
now or hereafter erected on the land; (iii) a separation in ownership or a
change in the dimensions or area of the land or any parcel of which the
land is or was a part; or (iv) environmental protection, or the effect of
any violation of these laws, ordinances or governmental regulations, except
to the extent that a notice of the enforcement thereof or a notice of a
defect, lien or encumbrances resulting from a violation or alleged
violation affecting the land has been recorded in the public records at
Date of Policy.
(b) Any governmental police power not excluded by (a) above, except to the
extent that a notice of the exercise thereof or a notice of a defect, lien
or encumbrances resulting from a violation or alleged violation affecting
the land has been recorded in the public records at Date of Policy.
Rights of eminent domain unless notice of the exercise thereof has been recorded
in the public records at Date of Policy, but not excluding from coverage any
taking which has occurred prior to Date of Policy which would be binding on the
rights of a purchaser for value without knowledge.
Defects, liens, encumbrances, adverse claims or other matter:
(a) created, suffered, assumed or agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records at Date of
Policy, but known to the insured claimant and disclosed in writing to the
Company by the insured claimant prior to the date the insured claimant
became an insured under this policy;
(c) resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy; or
(e) resulting in loss or damage which would not have been sustained if the
insured claimant had paid value for the estate or interest insured by this
policy.
Any claim, which arises out of the transaction vesting in the insured the estate
or interest insured by this policy, by reason of the operation of federal
bankruptcy, state insolvency, or similar creditors' rights laws.
CONDITIONS AND STIPULATIONS
1. DEFINITIONS OF TERMS
The following terms when used in this policy mean: (a) "insured": the
insured name in Schedule A, and, subject to any rights or defenses the
Company would have had against the named insured, those who succeed to the
interest of the named insured by, operation of law as distinguished from
purchase including, but not limited to, heirs, distributees, devisees,
survivors, personal representatives, next of kin, or corporate or fiduciary
successors.
(b) "insured claimant": an insured claiming loss or damage.
(c) "knowledge" or "known": actual knowledge, not constructive knowledge
or notice which may be imputed to an insured by reason of the public records
as defined in this policy or any other records which impart constructive
notice of matters affecting the land.
(d) "land": the land described or referred to in Schedule A, and
improvements affixed thereto which by law constitute real property. The term
"land" does not include any property beyond the lines of the area described or
referred to in Schedule A, nor any right, title, interest, estate or easement
in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but
nothing herein shall modify or limit the extent to which a right of access to
and from the land is insured by this policy.
(e) "mortgage": mortgage, deed of trust, trust deed, or the other
security instrument.
(f) "public records": records established under state statutes at Date of
Policy for the purpose of imparting constructive notice of matters relating
to real property to purchasers for value and without knowledge. With respect
to Section 1(a)(iv) of the Exclusions From Coverage, "public records" shall
also include environmental protection liens filed in the records of the clerk
of the United States district court for the district in which the land is
located.
(g) "unmarketability of the title": an alleged or apparent matter
affecting the title to the land, not excluded or excepted from coverage,
which would entitle a purchaser of the estate or interest described in
Schedule A to be released from the obligation to purchase by virtue of a
contractual condition requiring the delivery of marketable title.
2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE.
The coverage of this policy shall continue in force as of Date of Policy
in favor of an insured only so long as the insured retains an estate or
interest in the land, or holds an indebtedness secured by a purchase money
mortgage given by a purchaser from the insured, or only so long as the
insured shall have liability by reason of covenants of warranty made by the
insured in any transfer or conveyance of the estate or interest. This policy
shall not continue in force in favor of any purchaser from the insured of
either (i) an estate or interest in the land, or (ii) an indebtedness secured
by a purchase money mortgage given to the insured.
3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT.
The insured shall notify the Company promptly in writing (i) in case of
any litigation as set forth in Section 4(a) below, (ii) in case knowledge
shall come to an insured hereunder of any claim of xxxxxx or interest which is
adverse to the title to the estate or interest, as insured, and which might
cause loss or damage for which the Company may be liable by virtue of this
policy, or (iii) if title to the estate or interest, as insured, is rejected
as unmarketable. If prompt notice shall not be given to the Company, then as
to the insured all liability of the Company shall terminate with regard to
the matter or matters for which prompt notice is required; provided, however,
that failure to notify the Company shall in no case prejudice the rights of
any insured under this policy unless the Company shall be prejudiced by the
failure and then only to the extent of the prejudice.
4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE.
(a) Upon written request by the insured and subject to the options
contained in Section 6 of these Conditions and Stipulations, the Company, at
its own cost and without unreasonable delay, shall provide for the defense of
an insured in litigation in which any third party asserts a claim adverse to
the title or interest as insured, but only as to those stated causes of
action alleging a defect, lien or encumbrance or other matter insured against
by this policy. The Company shall have the right to select counsel of its
choice (subject to the right of the insured to object for reasonable cause)
to represent the insured as to those stated causes of action and shall not be
liable for and will not pay the fees of any other counsel. The Company will
not pay any fees, costs or expenses incurred by the insured in the defense of
those causes of action which allege matters not insured against by this
policy.
(b) The Company shall have the right, at its own cost, to institute and
prosecute any action or proceeding or to do any other act which in its
opinion may be necessary or desirable to establish the title to the estate or
interest as insured, or to prevent or reduce loss or damage to the insured.
The Company may take any appropriate action under the terms of this policy,
whether or not it shall be liable hereunder, and shall not thereby concede
liability or waive any provision of this policy. If the Company shall
exercise its rights under this paragraph, it shall do so diligently.
(c) Whenever, the Company shall have brought an action or interposed a
defense as required or permitted by the provisions of this policy, the
Company may pursue any litigation to final determination by a court of
competent jurisdiction and expressly reserves the right, it its sole
discretion, to appeal from any adverse judgment or order.
(d) In all cases where this policy permits or requires the Company to
prosecute or provide for the defense of any action or proceeding, the insured
shall secure to the Company the right to so prosecute or provide defense in
the action or proceeding, and all appeals therein, and permit the Company to
use, at its option, the name of the insured for this purpose. Whenever
requested by the Company, the insured, at the Company's expense, shall give
the Company all reasonable aid (i) in any action or proceeding, securing
evidence, obtaining witnesses, prosecuting or defending the action or
proceeding, or effecting settlement, and (ii) in any other lawful act which
in the opinion of the Company may be necessary or desirable to establish the
title to the estate or interest as insured. If the Company is prejudiced by
the failure of the insured to furnish the required cooperation, the Company's
obligations to the insured under the policy shall terminate, including any
liability or obligation to defend, prosecute, or continue any litigation,
with regard to the matter or matters requiring such cooperation.
5. PROOF OF LOSS OR DAMAGE.
In addition to and after the notices required under Section 3 of these
Conditions and Stipulations have been provided the Company, a proof of loss
or damage signed and sworn to by the insured claimant shall be furnished to
the Company within 90 days after the insured claimant shall ascertain the
facts giving rise to the loss or damage. The proof of loss or damage shall
describe the defect in, or lien or encumbrance on the title, or other matter
insured against by this policy which constitutes the basis of loss or damage
and shall state, to the extent possible, the basis of calculating the amount
of the loss or damage. If the Company is prejudiced by the failure of the
insured claimant to provide the required proof of loss or damage, the
Company's obligations to the insured under the policy shall terminate,
including any liability or obligation to defend, prosecute, or continue any
litigation, with regard to the matter or matters requiring such proof of loss
or damage.
In addition, the insured claimant may reasonably be required to submit
to examination under oath by an authorized representative of the Company and
shall produce for examination, inspection and copying, at such reasonable
times and places as may be designated by any authorized representative of the
Company, all records, books, ledgers, checks, correspondence and memoranda,
whether bearing a date before or after Date of Policy, which reasonably
pertain to the loss or damage. Further, if requested by any authorized
representative of the Company, the insured claimant shall grant its
permission, in writing, for any authorized representative of the Company to
examine, inspect and copy all records, books, ledgers, checks, correspondence
and memoranda in the custody or control of a third party, which reasonably
pertain to the loss or damage. All information designated as confidential by
the insured claimant provided to the Company pursuant to this Section shall
not be disclosed to others unless, in the reasonable judgment of the Company,
it is necessary in the administration of the claim. Failure of the insured
claimant to submit for examination under oath, produce other reasonably
requested information or grant permission to secure reasonably necessary
information from third parties as required in this paragraph shall terminate
any liability of the Company under this policy as to that claim.
6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY
In case of a claim under this policy, the Company shall have the
following additional options:
(a) TO PAY OR TENDER PAYMENT OF THE AMOUNT OF INSURANCE.
To pay or tender payment of the amount of insurance under this policy
together with any costs, attorneys' fees and expenses incurred by the insured
claimant, which were authorized by the Company, up to the time of payment or
tender of payment and which the Company is obligated to pay.
Upon the exercise the Company of this option, all liability and
obligations to the insured under this policy, other than to make the payment
required, shall terminate, including any liability or obligation to defend,
prosecute, or continue any litigation, and the policy shall be surrendered to
the Company for cancellation.
(b) TO PAY OR OTHERWISE SETTLE WITH PARTIES OTHER THAN THE INSURED OR
WITH THE INSURED CLAIMANT.
(i) to pay or otherwise settle with other parties for or in the name
or an insured claimant any claim insured against under this policy, together
with any costs, attorneys' fees and expenses incurred by the insured claimant
which were authorized by the Company up to the time of payment and which the
Company is obligated to pay; or
(ii) to pay or otherwise settle with the insured claimant the loss or
damage provided for under this policy, together with any costs, attorneys'
fees and expenses incurred by the insured claimant which were authorized by
the Company up to the time of payment and which the Company is obligated to
pay.
Upon the exercise by the Company of either of the options provided for in
paragraphs (b)(i) or (ii), the Company's obligations to the insured under
this policy for the claimed loss or damage, other than the payments required
to be made, shall terminate, including any liability or obligation to defend,
prosecute or continue any litigation.
7. DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE.
This policy is a contract of indemnity against actual monetary loss or
damage sustained or incurred by the insured claimant who has suffered loss or
damage by reason of matters insured against by this policy and only to the
extent herein described.
(a) The liability of the Company under this policy shall not exceed the
least of:
(i) the Amount of Insurance stated in Schedule A; or,
(ii) the difference between the value of the insured estate or
interest as insured and the value of the insured estate or interest subject
to the defect, lien or encumbrance insured against by this policy.
(b) In the event the Amount of Insurance stated in Schedule A at the Date
of Policy is less than 80 percent of the value of the insured estate or
interest or the full consideration paid for the land, whichever is less, or
if subsequent to the Date of Policy an improvement is erected on the land
which increases the value of the insured estate or interest by at least 20
percent over the Amount of Insurance stated in Schedule A, then this Policy
is subject to the following:
(i) where no subsequent improvement has been made, as to any partial
loss, the Company shall only pay the loss pro rata in the proportion that the
amount of insurance at Date of Policy bears to the total value of the insured
estate or interest at Date of Policy; or
(ii) where a subsequent improvement has been made, as to any partial
loss, the Company shall only pay the loss pro rata in the proportion that 120
percent of the Amount of Insurance stated in Schedule A bears to the sum of
the Amount of Insurance stated in Schedule A and the amount expended for the
improvement.
The provisions of this paragraph shall not apply to costs, attorneys'
fees and expenses for which the Company is liable under this policy, and
shall only apply to that portion of any loss which exceeds, in the aggregate,
10 percent of the Amount of Insurance stated in Schedule A.
(c) The Company will pay only those costs, attorneys' fees and expenses
incurred in accordance with Section 4 of these Conditions and Stipulations.
8. APPORTIONMENT.
If the land described in Schedule A consists of two or more parcels which are
not used as a single site, and a loss is established affecting one or more of
the parcels but not all, the loss shall be computed and settled on a pro rata
basis as if the amount of insurance under this policy was divided pro rata as
to the value on Date of Policy of each separate parcel to the whole,
exclusive of any improvements made subsequent to Date of Policy, unless a
liability or value has otherwise been agreed upon as to each parcel by the
Company and the insured at the time of the issuance of this policy and shown
by an express statement or by an endorsement attached to this policy.
9. LIMITATION OF LIABILITY.
(a) If the Company establishes the title, or removes the alleged defect,
lien or encumbrances, or cures the lack of a right of access to or from the
land, or cures the claim of of unmarketability of title, all as insured, in a
reasonably diligent manner by any method, including litigation and the
completion of any appeals therefrom, it shall have fully performed its
obligations with respect to that matter and shall not be liable for any loss
or damage caused thereby.
(b) In the event of any litigation, including litigation by the Company
or with the Company's consent, the Company shall have no liability for loss
or damage until there has been a final determination by a court of competent
jurisdiction, and disposition of all appeals therefrom, adverse to the title
as insured.
(c) The Company shall not be liable for loss or damage to any insured or
liability voluntarily assumed by the insured in settling any claim or suit
without the prior written consent of the Company.
10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY.
All payments under this policy, except payments made for costs,
attorneys' fees and expenses, shall reduce the amount of the insurance pro
rata.
11. LIABILITY NONCUMULATIVE.
It is expressly understood that the amount of insurance under this policy
shall be reduced by any amount the Company may pay under any policy insuring
a mortgage to which exception is taken in Schedule BV or to which the insured
has agreed, assumed, or taken subject, or which is hereafter executed by an
insured and which is a charge or lien on the estate or interest described or
referred to in Schedule A, and the amount so paid shall be deemed a payment
under this policy to the insured owner.
12. PAYMENT OF LOSS.
(a) No payment shall be made without producing this policy for
endorsement of the payment unless the policy has been loss or destroyed, in
which case proof of loss or destruction shall be furnished to the
satisfaction of the Company.
(b) When liability and the extent of loss or damaged has been definitely
fixed in accordance with these Conditions and Stipulations, the loss or
damage shall be payable within 30 days thereafter.
13. SUBROGATION UPON PAYMENT OR SETTLEMENT.
(a) THE COMPANY'S RIGHT OF SUBROGATION.
Whenever the Company shall have settled and paid a claim under this policy,
all right of subrogation shall vest in the Company unaffected by any act of
the insured claimant.
The Company shall be subrogated to and be entitled to all rights and
remedies which the insured claimant would have had against any person or
property in respect to the claim had this policy not been issued. If
requested by the Company, the insured claimant shall transfer to the Company
all rights and remedies against any person or property necessary in order to
perfect this right of subrogation. The insured claimant shall permit the
Company to xxx, compromise or settle in the name of the insured claimant and
to use the name of the insured claimant in any transaction or litigation
involving these rights or remedies.
If a payment on account of a claim does not fully cover the loss of the
insured claimant, the Company shall be subrogated to these rights and
remedies in the proportion which the Company's payment bears to the whole
amount of the loss.
If loss should result from any act of the insured claimant, as stated
above, that act shall not void this policy, but the Company, in that event,
shall be required to pay only that part of any losses insured against by this
policy which shall exceed the amount, if any, lost to the Company by reason
of the impairment by the insured claimant of the Company's right of
subrogation.
(b) THE COMPANY'S RIGHTS AGAINST NON-INSURED OBLIGORS.
The Company's right of subrogation against non-insured obligors shall
exist and shall include, without limitation, the rights of the insured to
indemnities, guaranties, other policies of insurance or bonds,
notwithstanding any terms or conditions contained in those instruments which
provide for subrogation rights by reason of this policy.
14. ARBITRATION.
Unless prohibited by applicable law, either the Company or the insured
may demand arbitration pursuant to the Title Insurance Arbitration Rules of
the American Arbitration Association. Arbitrable matters may include, but are
not limited to, any controversy or claim between the Company and the insured
arising out of or relating to this policy, any service of the Company in
connection with its issuance or the breach of a policy provision or other
obligation. All arbitrable matters when he Amount of Insurance is $1,000,000
or less shall be arbitrated at the option of either the Company or the
insured. All arbitratable matter when the Amount of Insurance is in excess of
$1,000,000 shall be arbitrated
only when agreed to by both the Company and the insured. Arbitration pursuant
to this policy and under the Rules in effect on the date the demand for
arbitration is made or, at the option of the insured, the Rules in effect at
Date of Policy shall be binding upon the parties. The award may include
attorneys' fees only if the laws of the state in which the land is located
permit a court to award attorneys' fees to a prevailing party. Judgment upon
the award rendered by the Arbitrator(s) may be entered into any court having
jurisdiction thereof.
The law of the situs of the land shall apply to an arbitration under the
Title Insurance Arbitration Rules.
A copy of the Rules may be obtained from the Company upon request.
15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT.
(a) This policy together with all endorsements, if any, attached hereto by
the Company is the entire policy and contract, between the insured and the
Company. In interpreting any provision of this policy, this policy shall be
construed as a whole.
(b) Any claim of loss or damage, whether or not based on negligence, and
which arises out of the status of the title to the estate or interest covered
hereby or by any action asserting such claim, shall be restricted to this
policy.
(c) No amendment of or endorsement to this policy can be made except by a
writing endorsed hereon or attached hereto signed by either the President, a
Vice President, the Secretary, an Assistant Secretary, or validating officer
or authorized signatory of the Company.
16. SEVERABILITY.
In the event any provision of the policy is held invalid or unenforceable
under applicable law, the policy shall be deemed not to include that
provision and all other provisions shall remain in full force and effect.
17. NOTICES, WHERE SENT.
All notices required to be given the Company and any statement in writing
required to be furnished the Company shall include the number of this policy
and shall be addressed to its Corporate-Headquarters, 0000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000. Mailing address: X.X. Xxx 00000, Xxxxxxxx, Xxxxxxxx
00000.
-------------------------------------------------------------------------------
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POLICY OF TITLE INSURANCE
A WORD OF THANKS . . .
As we make your policy a part of our permanent records, we want to express
our appreciation of this evidence of your faith in Lawyers Title Insurance
Corporation.
There is no recurring premium.
This policy provides valuable title protection and we suggest you keep it in a
safe place where it will be readily available for future reference.
If you have any questions about the protection provided by this policy, contact
the office that issued your policy or you may write to:
Consumer Affairs Department
LAWYERS TITLE INSURANCE CORPORATION
X.X. XXX 00000
XXXXXXXX, XXXXXXXX 00000
TOLL FREE NUMBER 0-000-000-0000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
LAWYERS TITLE
INSURANCE CORPORATION
NATIONAL HEADQUARTERS
RICHMOND, VIRGINIA
OWNER'S POLICY
SCHEDULE A
*******************
ENDORSEMENTS:
********************************************************************************
CASE DATE OF AMOUNT OF POLICY
NUMBER POLICY POLICY NUMBER
________________________________________________________________________________
June 17, 1994 $2,950,000.00 000-00-000000
________________________________________________________________________________
1. Name of Insured:
X. XxxXxxxxx Xxxxxxxx
2. The estate or interest in the land which is covered by this policy is;
fee simple
3. Title to the estate or interest in the land is vested in:
X. XxxXxxxxx Xxxxxxxx
4. The land referred to in this policy is described as follows:
SEE ATTACHED DESCRIPTION
NOTE: This property was conveyed to X. XxxXxxxxx Xxxxxxxx by warranty
deed of R. XxXxxx Xxxxxxx, a 3/4ths undivided interest as tenant in
common and Xxxx Xxxx, a 1/4th undivided interest as tenant in common,
dated June 16, 1994, filed for record on June 17, 1994, in Warranty
Deed Book 522, Page 646, in the Register's Office for Xxxxxx County,
Tennessee. Said warranty deed was corrected by Correction Warranty
Deed dated May 10, 1995, filed for record on May 10, 1995, in Warranty
Deed Book 544, Page 607, in the Register's Office for Xxxxxx County,
Tennessee.
XXXXXXX X. XXXXX
By: /s/ XXXXXXX X. XXXXX Sevierville, Tennessee
------------------------------ -------------------------
COUNTERSIGNATURE AUTHORIZED Issued At (Location)
OFFICER OR AGENT
Policy 136 - Form No. 000-0000-0000 -- This Policy is invalid unless the
cover sheet and Schedule B are attached. --- ALTA Owners Policy (10-17-92)
Lawyers Title
Insurance Corporation
NATIONAL HEADQUARTERS
Richmond, Virginia
OWNER'S POLICY
SCHEDULE B
********************************************************************************
CASE NUMBER: POLICY NUMBER: 113-00-997-074
********************************************************************************
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage (and the Company will not pay
costs, attorneys fees or expenses) which arise by reason of:
1. Special Exceptions:
(a) Taxes for the year 1995 and subsequent years.
2. The officials of the City of Pigeon Forge have represented that the 1993
City of Pigeon Forge Taxes have been paid in the amount of $3338.63, #2322,
and that there are no taxes owing for prior years. However, no opinion is
expressed and no liability is assumed with regard to these representations
since similar representations by officials of the City of Pigeon Forge have
proved unreliable in the past.
3. This property may be subject to an easement in respect to the old abandoned
roadbed adjoining Pine Grove Plaza along the northern boundary of the
property as shown on map of Xxxxxx X. Xxxx, RLS, dated June 8, 1994.
4. Subject to an existing asphalt encroachment along the northern boundary of
the property adjoining Pine Grove Plaza and Highway 441, as shown on map of
Xxxxxx X. Xxxx, RLS, dated Jun 8, 1994.
5. This property is subject to a deed of trust in favor of Third National Bank
of East Tennessee, dated June 16, 1994, of record in Trust Deed Book 523,
Page 220, in the said Register's Office. Said deed of trust was corrected
by Correction Tennessee Deed of Trust dated May 10, 1995, of record in
Trust Deed Book 557, Page 322, in the said Register's Office.
Policy 136 Litho in U.S.A. - Form No. 035-0-136-0001 --- ALTA Owners Policy
(10-17-92)
EXHIBIT A
TRACT I:
SITUATED in the Fifth (5th) Civil District of Xxxxxx County, Tennessee, and
within the corporate limits of the City of Pigeon Forge, Tennessee, and being a
10.165 acre tract located on the eastern side of U.S. Highway 441, and being
more particularly bounded and described as follows:
BEGINNING at an iron pin set in the eastern right-of-way of U.S. Highway 441,
said iron pin being 300 feet, more or less, in a northerly direction from the
intersection of the eastern right-of-way of U.S. Highway 441 with the northern
right-of-way of Sugar Hollow Road; thence with the right-of-way of U.S. Highway
441 North 00 deg. 42 min. 48 sec. East passing an iron pin at 55.38 feet, a
total distance of 178.16 feet to an iron pin marking the southwestern corner of
Xxx 0 xx Xxxx Xxxxx Xxxxx (Map Book 21, Page 173); thence leaving the right-of-
way of U.S. Highway 441 and with the line of Pine Grove Plaza the following two
calls and distances: North 67 deg. 32 min. 43 sec. East 829.56 feet to an iron
pin; North 48 deg. 13 min. 38 sec. East 169.07 feet to an iron pin, corner to
Xxxxxx Xxxxx, Inc. (Deed Book 282, Page 15); thence with the line of Xxxxxx
Xxxxx, Inc. the following two calls and distances: South 54 deg. 40 min. 24 sec.
East 349.54 feet to an iron pin; North 43 deg. 24 min. 19 sec. East 247.69 feet
to an iron pin, corner to Xxxx and Xxxx Xxxxxxx (Deed Book 132, Page 88); thence
with the line of Xxxxxxx and a fence the following two calls and distances:
South 56 deg. 20 min. 12 sec. East 136.66 feet to an iron pin; South 51 deg. 15
min. 57 sec. East 21.10 feet to an iron pin, corner to R. XxXxxx Xxxxxxx, et al.
(Deed Book 522, Page 642); thence with the line of R. XxXxxx Xxxxxxx, et al.,
the following six calls and distances: South 40 deg. 26 min. 51 sec. West 621.24
feet to an iron pin; thence running with the arc in a curve to the left in a
circle having a radius of 332.34 feet, a tangent of 60.39 feet, a chord call and
distance of North 83 deg. 26 min. 38 sec. West 118.84 feet to an iron pin;
thence South 86 deg. 15 min. 24 sec. West 97.00 feet, a tangent of 76.99 feet, a
chord call and distance of North 71 deg. 04 min. 59 sec. West 142.09 feet to an
iron pin; thence North 48 deg. 25 min. 23 sec. West 20.64 feet to an iron pin;
thence running with the arc in a curve to the left in a circle having a radius
of 75.13 feet, a tangent of 28.51 feet, a chord call and distance of North 69
deg. 12 min. 15 sec. West 53.31 feet to an iron pin, corner to BGA Associates
(Deed Book 485, Page 177); thence with the line of BGA Associates the following
two calls and distances: North 89 deg. 59 min. 25 sec. West 425.32 feet to an
iron pin; South 65 deg. 12 min. 05 sec. West 261.88 feet to an iron pin in the
right-of-way of U.S. Highway 441, the POINT OF BEGINNING, as shown by survey of
Xxxx X. Xxx, RLS #780. ETE Consulting Engineering, Inc., 000 Xxx Xxxxx Xxxxxxxx,
Xxx Xxxxx, Xxxxxxxxx 00000, dated April 28, 1995, bearing Job No. 00-000-00.
THIS CONVEYANCE IS SUBJECT TO an exclusive sign easement as reserved in
Correction Warranty Deed dated May 10, 1995, of record in Deed Book 544, Page
607, in the Xxxxxx County Register's Office, said easement encumbering the
following described parcel of property:
SITUATED in the Fifth (5th) Civil District of Xxxxxx County, Tennessee, and
within the corporate limits of the City of Pigeon Forge, Tennessee, being
located on the eastern side of U.S. Highway 441, and being more particularly
described as follows:
TO FIND THE POINT OF BEGINNING start at an iron pin set in the eastern right-of-
way of U.S. Highway 441, said iron pin being 300 feet, more or less, in a
northerly direction from the intersection of the eastern right-of-way of U.S.
Highway 441 with the northern right-of-way of Sugar Hollow Road; thence running
with the eastern right-of-way of U.S. Highway 441 and the western terminus of a
50 foot joint permanent non-exclusive easement North 00 deg. 42 min. 48 sec.
East 55.38 feet to an iron pin lying in the northern line of said 50 foot
joint permanent non-exclusive easement, said iron pin marking the place of
beginning of the sign easement area; thence leaving the right-of-way of U.S.
Highway 441 and with the northern line of a 50 foot joint permanent
non-exclusive easement North 65 deg. 12 min. 05 sec. East 20.00 feet, more or
less, to a point; thence leaving the right-of-way of a 50 foot joint
permanent non-exclusive easement North 00 deg. 42 min. 48 sec. East 20.00
feet, more or less, to a point; thence South 65 deg. 12 min. 05 sec. West
20.00 feet, more or less, to a point in the eastern right-of-way of U.S.
Highway 441; thence with the eastern right-of-way of U.S. Highway 441 South
00 deg. 42 min. 48 sec. West 20.00 feet, more or less, to an iron pin, the
POINT OF BEGINNING, as shown on survey of Xxxx X. Xxx, RLS #780, ETE
Consulting Engineering, Inc., 000 Xxx Xxxxx Xxxxxxxx, Xxx Xxxxx, Xxxxxxxxx
00000, dated April 28, 1995, bearing Job. No. 00-000-00.
THIS CONVEYANCE IS FURTHER SUBJECT TO a 50 foot wide joint permanent non-
exclusive easement for ingress, egress and utilities running over, across and
under the above-described 10.165 acre tract of property, as reserved in
Correction Warranty Deed dated May 10, 1995, of record in Deed Book 544, Page
607, in the Xxxxxx County Register's Office, said 50 foot wide joint permanent
non-exclusive easement being more particularly bounded and described as follows:
SITUATED in the Fifth (5th) Civil District of Xxxxxx County, Tennessee, and
within the corporate limits of the City of Pigeon Forge, Tennessee, and being
more particularly bounded and described as follows:
BEGINNING at an iron pin in the eastern right-of-way of U.S. Highway 441, said
iron pin being located 300 feet, more or less, in a northerly direction from the
intersection of the eastern right-of-way of U.S. Highway 441 with the northern
right-of-way of Sugar Hollow Road; thence with the right-of-way of U.S. Highway
441 North 00 deg. 42 min. 48 sec. East 55.38 feet to an iron pin; thence leaving
the right-of-way of U.S. Highway 441 and running along the northern right-of-way
line of the 50 foot wide joint permanent non-exclusive easement the following
calls and distances: North 65 deg. 12 min. 05 sec. East 249.02 feet to an iron
pin; thence South 89 deg. 59 min. 24 sec. East 436.32 feet to an iron pin;
thence running with an arc in a curve to the right in a circle having a radius
of 125.13 feet, a tangent of 47.49 feet, a chord call and distance of South 69
deg. 12 min. 15 sec. East 88.79 feet to an iron pin; thence South 48 deg. 25
min. 23 sec. East 20.64 feet to an iron pin; thence running with an arc in a
curve to the left in a circle having a radius of 134.40 feet, a tangent of 56.11
feet, a chord call and distance of South 71 deg. 04 min. 59 sec. East 103.56
feet to an iron pin; thence North 86 deg. 15 min. 24 sec. East 97.00 feet to an
iron pin; thence running with the arc in a curve to the right in a circle having
a radius of 382.34 feet, a tangent of 49 min. 36 sec. East 157.90 feet to an
iron pin in the line of R. XxXxxx Xxxxxxx, et al. (Deed Book 522, Page 642);
thence with the line of R. XxXxxx Xxxxxxx, et al. The following six calls and
distances: South 40 deg. 26 min. 51 sec. West 53.90 feet to an iron pin; thence
running with the arc in a curve to the left in a circle having a radius of
332.34 feet, a tangent of 60.39 feet, a chord call and distance of North 83 deg.
26 min. 38 sec. West 118.84 feet to an iron pin; thence South 86 deg. 15 min. 24
sec. West 97.00 feet to an iron pin; thence running with an arc in a curve to
the right in a circle having a radius of 184.40 feet, a tangent of 76.99 feet, a
chord call and distance of North 71 deg. 04 min. 59 sec. West 142.09 feet to an
iron pin; thence North 48 deg. 25 min. 23 sec. West 20.64 feet to an iron pin;
thence running with an arc in a curve to the left in a circle having a radius of
75.13 feet, a tangent of 28.51 feet, a chord call and distance of North 69 deg.
12 min. 15 sec. West 53.31 feet to an iron pin, corner to BGA Associates (Deed
Book 485, PGE 177); thence with the line of BGA Associates the following two
calls and distances: North 89 deg. 59 min. 25 sec. West 425.32 feet to an iron
pin; thence South 65 deg. 12 min. 05 sec. West 261.88 feet to an iron pin in the
eastern right-of-way line of U.S. Highway 441, the POINT AND PLACE OF BEGINNING,
as shown by survey of Xxxx X. Xxx, RLS #780, ETE Consulting Engineering, Inc.,
000 Xxx Xxxxx Xxxxxxxx, Xxx Xxxxx, Xxxxxxxxx 00000, dated April 28, 1995,
bearing Job No. 00-000-00.
TRACT II:
PARCEL A:
SITUATED in the Fifth (5th) Civil District of Xxxxxx County, Tennessee, and
within the corporate limits of the City of Pigeon Forge, Tennessee, and being a
50 foot wide right-of-way immediately north of and running parallel with the
following described line, which line marks the southern right-of-way line for
said 50 foot wide joint permanent non-exclusive easement for ingress, egress and
utilities:
TO FIND THE POINT OF BEGINNING start at an iron pin set in the eastern right-of-
way line of U.S. Highway 441, said iron pin being 300 feet, more or less, in a
northerly direction from the intersection of the eastern right-of-way of U.S.
Highway 441 with the northern right-of-way of Sugar Hollow Road and said iron
pin being corner to BGA Associates (Deed Book 485, Page 177); thence running
with the line of BGA Associates the following two calls and distances: North 65
deg. 12 min. 05 sec. East 261.88 feet to an iron pin; thence South 89 deg. 59
min. 25 sec. East 425.32 feet to an iron pin, corner to R. XxXxxx Xxxxxxx, et
al.; thence with the line of Xxxxxxx, et al. the following five calls and
distances: Running with the arc in a curve to the right in a circle having a
radius of 75.131 feet, a tangent of 28.513 feet, a chord call and distance of
South 69 deg. 12 min. 18 sec. East 53.315 feet to an iron pin; thence South 48
deg. 25 min. 23 sec. East 20.64 feet to an iron pin; thence running with the arc
in a curve to the left in a circle having a radius of 184.400 feet, a tangent of
76.985 feet, a chord call and distance of South 71 deg. 05 min. 00 sec. East
142.085 feet to an iron pin; thence North 86 deg. 15 min. 24 sec. East 97.00
feet to an iron pin; thence running with the arc in a curve to the right in a
circle having a radius of 332.340 feet, a tangent of 67.162 feet, a chord call
and distance of South 82 deg. 19 min. 07 sec. East 131.662 feet to an iron pin,
the POINT OF BEGINNING; thence running with the arc in a curve to the right in a
circle having a radius of 345.332 feet, a tangent of 96.499 feet, a chord call
and distance of South 55 deg. 16 min. 53 sec. East 185.877 feet to an iron pin;
thence South 39 deg. 40 min. 08 sec. East 193.90 feet to an iron pin, being
corner to property of Xxxxxxx Xxxxxx, said iron pin marking the terminus of the
easement area and being according to the survey of Xxxxxx X. Xxxx, Tennessee
Registered Land Survey No. 683, 0000 Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000, dated December 20, 1994 and the last revised on April 19, 1995.
PARCEL B
SITUATED in the Fifth (5th) Civil District of Xxxxxx County, Tennessee, and
within the corporate limits of the City of Pigeon Forge, Tennessee, beginning at
an iron pin marking the southeastern terminus of the aforementioned easement
described above, and which iron pin lies in the southwestern right-of-way line
of the 50 foot wide joint permanent non-exclusive easement area; thence leaving
said point and place of beginning and running with the southern terminus of the
50 foot wide joint permanent non-exclusive easement for ingress, egress and
utilities afore described, North 50 deg. 19 min. 51 sec. East 50.00 feet to an
iron pin; thence South 39 deg. 40 min. 08 sec. East 132.93 feet to an iron pin;
thence North 79 deg. 28 min. 09 sec. East 110.87 feet to an iron pin; thence
running with the arc in a curve to the right in a circle having a radius of
50.01 feet, a tangent of 39.94 feet, an arc distance of 67.40 feet to an iron
pin lying in the northern right-of-way line of Sugar Hollow Road; thence running
with the northern right-of-way line of Sugar Hollow Road and running with the
arc in a curve to the left in a circle having a radius of 498.40 feet, a tangent
of 25.03 feet, an arc distance of 50.03 feet to an iron pin, being corner to
property of X.X. XxXxxxxx (Plat Book 5, Page 72); thence running with the line
of XxXxxxxx South 79 deg. 28 min. 09 sec. West 140.25 feet to an iron pin, being
corner to property of Xxxxxxx Xxxxxx; thence running with the line of Xxxxxxx
Xxxxxx North 39 deg. 40 min. 08 sec. West 162.30 feet to an iron pin, marking
the POINT AND PLACE OF BEGINNING, and being according to the survey of Xxxxxx X.
Xxxx, Tennessee Registered Land Surveyor No. 683, 0000 Xxxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, dated December 20, 1994 and last revised on
April 19, 1995.
BEING the same property conveyed to X. XxxXxxxxx Xxxxxxxx from R. XxXxxx Xxxxxxx
and Xxxx Xxxxxx Xxxx by Deed dated June 16, 1994, of record in Deed Book 522,
Page 646, as corrected by Deed dated May 10, 1995, of record in Deed Book 544,
Page 607, both in the Xxxxxx County Register's Office.
EXHIBIT 2
CTE CONTRACT
EXHIBIT 2
CONTRACT TO PRODUCE SHOW
BETWEEN
COUNTRY TONITE ENTERPRISES, INC.
AND
COUNTRY TONITE THEATRE, L.L.C.
This contract to Produce Show ("Contract") is by and between Country Tonite
Theatre, L.L.C, hereinafter referred to as "Theater," and Country Tonite
Enterprises, Inc., hereinafter referred to as "Producer." Producer agrees to
produce and present for Theater a show known as "Country Tonite" hereinafter
referred to as "Show" in the Country Tonite Theatre located at 2249 Parkway in
Pigeon Forge, Tennessee. Said show will be produced and presented under the
terms and conditions of this Contract.
RECITALS
1. CONTRACT TERM. Producer agrees to produce and present the Show for a
term that is coextensive with the existence of Country Tonite Theatre, L.L.C., a
Tennessee limited liability company, pursuant to its Operating Agreement, dated
as of September 24th, 1996 (the "Operating Agreement").
2. THE "SHOW" DEFINED. The Show will have a running time of one-and-one-
half to two hours. It will consist of at least five singers, eight dancers and
one or two specialty acts performing in a structured Country & Western music
variety show. The Show will also consist of live music with a seven to a
twelve-piece band. In addition to performers and artists, CTE will provide one
(1) administrative person and one (1) wardrobe attendant to facilitate the
production of the show (collectively "Producer Personnel.") The Show shall be a
first rate production consistent with the quality of other variety shows
currently being performed by CTE. Producer may vary the format from time to
time in the best interest of the Show and the Theater.
3. WEEK DEFINED. A "week" is herein defined as a six-day period of a
calendar week (Sunday through Saturday) plus one nonperformance dark night to be
designated by Theater. It is hereby acknowledged that a week will include up to
twelve (12) performances per week. The Show times and days will be designated
in writing by Theater, provided that Producer shall not be required to present
the show between January 1 and March 1 of each year. Producer shall not be
required to present the show a minimum number of times per week, but Producer
shall be required to present the show an average eight (8) times per week for
the period from March 15 through December 31 in each year. Theatre agrees not
to do over twelve (12) shows per week without Xxxxxxxx Ventures, LLC's consent,
which shall not be unreasonably withheld. If show is presented more than twelve
(12) times in one week, Producer shall be paid $3,750.00 for each show in a week
over twelve (12).
4. RIGHTS IN THE PRODUCTION. Producer will own and retain all rights in
and to the title, format, logo, script continuity, choreography, and all other
elements of the Show. Notwithstanding the foregoing, Producer grants to Theater
a license for the Term of this Contract, including any extensions thereof to
utilize the Show's title, logo, video, or audio excerpts or any other reference
to or description of the Show in the Theater, promotion, marketing or public
relations materials.
5. EXCLUSIVITY. Producer agrees that during the Term of this contract,
and any extensions thereof, Producer shall not compete with the Theater directly
or indirectly within Xxxxxx County, Tennessee or any
adjoining county. However, from time to time, it is hereby understood that
Producer may be airing certain excerpts from the Show for the purpose of
marketing, merchandising and advertising the Show. If a taped excerpt of the
Show is utilized on television, for purposes other than marketing and
advertising, for profit, Producer shall pay a fee of $5,000.00 to Theater.
6. CONSIDERATION AND METHOD OF PAYMENT.
a. Theater shall pay Producer a fee of $42,500 per week during the
term, provided that if less than six (6) shows are presented in any week,
subject to the next sentence, the amount paid to Producer for such week shall be
reduced by $7,083.33 for each show less than six (6) that is presented. If the
show is presented for any partial week at the beginning or end of a performance
season, such fee shall be pro-rated based on days performed, but in no event
shall any payment be made between January 1 and March 1 of any year. Payment
shall be made on a weekly basis to Producer and made available to Producer each
Monday morning before 10:00 a.m., Knoxville time, following the week's
performance. Theater will be in default if payment is not made in full within
ten (10) days of written notice of such nonpayment as provided herein.
b. The fee provided for in subparagraph (a) of this paragraph shall
be adjusted as of March 1 of each year, beginning March 1, 1998, for "cost of
living" changes in accord with the Consumer Price Index for Urban Wage Earners
and Clerical Workers (all items) for the Southern United States published by the
Southern Office of the United States Department of Labor, Bureau of Labor
Statistics (the "index"). Each adjustment shall be made by multiplying the
weekly payment for the last full week of the prior calendar year by a fraction,
the numerator which shall be the most recent index in effect at the time of such
adjustment, and the denominator of which shall be the index for January, 1997.
The product shall be the adjusted weekly payment until the next adjustment
occurs. If the index changes so that the base (denominator) differs from that
originally used, the index shall be converted in accordance with the conversion
factor published by the United States Department of Labor, Bureau of Labor
Statistics. If the index is discontinued or revised during the term hereof,
such other government index or computation with which it is replaced shall be
used in order to obtain substantially the same result as would have been
obtained if the index had not been discontinued or revised.
c. As further consideration hereunder, Producer shall have the
exclusive right to film and/or video tape the Show or excerpts thereof and shall
make such film and/or video tape available to Theatre at Producer's actual cost.
All income from sales or rental of such film or video tape sold in Xxxxxx County
shall inure to the benefit of the Theater.
7. PRICE AND REVENUE. Theater shall establish the admission price for
the Show and the cost to the audience of any and all beverage and food service
and shall retain all revenues therefrom. Theater agrees to pay all taxes on
admissions to Show, plus cabaret taxes and sales taxes as well as ASCAP, SESAC
and BMI licensing fees.
8. CERTAIN PRODUCTION COSTS.
a. Theater shall provide, at its expense, lighting and sound
systems, stage sets, house equipment, related equipment, wardrobe maintenance
including storage for same for Show's performers, stage configuration, dressing
rooms, and projection system and screen. Theater shall provide the necessary
personnel to handle stage functions, including but not limited to stage manager,
assistant stage manager, spotlight operators, and lighting and sound
technicians. Producer acknowledges that the facilities and equipment located at
2249 Parkway in Pigeon Forge, Tennessee are suitable for the production of the
show in accordance with the terms of this Agreement.
b. Producer shall provide, at its sole expense:
(1) All props required for the Show;
(2) All costumes for the Show's performers;
(3) All special effects for the Show which are not standard and
ordinarily existent in the Theater's showroom.
9. REHEARSAL AND AUDITIONS.
a. Theater shall make the showroom available to Producer for
rehearsals and auditions upon reasonable notice by Producer and shall make such
stage lighting and sound personnel as may be reasonably necessary thereto
available in connection therewith.
b. The Theater reserves the right to utilize the showroom for
entertainment and other purposes during all daytime hours and during any
evenings or other times the Show is not presented or when the auditorium is not
in use during mutually agreed rehearsal and audition times described in the
preceding subparagraph.
c. Theater agrees to make the auditorium available for rehearsal and
taping of television commercials.
10. TERMINATION. The Producer may terminate this Agreement if any of the
following events shall occur.
a. Failure by Theatre to pay, in full, on the dates due, any payment
due hereunder, provided, however, that Theatre shall have ten (10) days
following written notice from Producer to cure such default.
b. Failure by Theatre to observe or perform any of the other terms,
covenants, agreements or conditions contained in this Agreement for a period of
thirty (30) days after written notice from Producer specifying such default,
provided, if any such default cannot be completely cured within such 30-day
period, despite Theatre's diligent, best-faith effort, commenced immediately,
then Theatre shall have a reasonable time to complete the cure of such default,
for a period not to exceed ninety (90) days.
c. Either the Lease dated as of the date hereof between X. XxxXxxxxx
Xxxxxxxx, M.D., and the Theatre or the Operating Agreement of the Theatre is
terminated.
The Producer's right to terminate this Agreement under this paragraph
is in addition to such other rights that the Producer may have at law or equity.
The Theatre may terminate this Agreement if any of the following
events shall occur.
a. Failure by Producer to observe or perform any of the other terms,
covenants, agreements or conditions contained in this Agreement for a period of
thirty (30) days after written notice from Theatre specifying such default,
provided, if any such default cannot be completely cured within such 30-day
period, despite Producer's diligent, best-faith effort, commenced immediately,
then Producer shall have a reasonable time to complete the cure of such default,
for a period not to exceed ninety (90) days.
b. Either the Lease dated as of the date hereof between X. XxxXxxxxx
Xxxxxxxx, M.D., and the Theatre or the Operating Agreement of the Theatre is
terminated.
The Theater's right to terminate this Agreement under this paragraph is in
addition to such other rights that the Theater may have at law or equity.
Any notices given hereunder shall also be given to Xxxxxxxx Ventures, LLC,
in the manner and at the address provided in the Operating Agreement.
10. CERTAIN PROHIBITIONS. Upon the termination of this Agreement Theatre
agrees not to:
a. for a period of one (1) year after termination of this Agreement,
produce either directly or indirectly or rent its property to any person or
entity producing, a country and eastern rock music variety shown which uses the
word "County" in its name or in any trade name or trademark.
b. for a period of one (1) year after termination of this Agreement,
hire any person who was an employee of the Producer or any affiliated entity
within the one-year period prior to the termination of this Agreement; or
c. violate any copyright, trademark or common law intellectual
property rights of CTE or any affiliated entity.
The provisions of this paragraph shall survive the termination of this
Agreement.
12. PRODUCER PERSONNEL. Producer shall require and assure that all
Producer Personnel shall at all times perform his/her services in a highly
professional manner. While on the premises of the Theatre, Producer Personnel
shall conduct themselves in an appropriate and dignified manner, using
professional discretion at all times. Producer is responsible for assuring that
Producer Personnel and all persons performing services for Producer in
connection with this agreement are subject to, and comply fully with, all terms
and conditions of this Agreement.
13. CANCELLATION OF PERFORMANCE BY THEATRE. Theatre shall have the right
to cancel any performance of the Show, or any portion thereof, should
extraordinary conditions exist which include, but are not limited to: riot,
civil disorder, act(s) of God, strike, act of any federal, state or local
instruments, rebellions, bomb threats, or any natural disaster.
14. PUBLICITY. Producer shall require all performers in the Show to be
available to Theater when requested from time to tome, for, among other things,
publicity photographs and interview . All such services shall be rendered
without any kind of cost or charge to Theater except that the Theater shall
reimburse for travel, as required by the Theater or may pay the entertainer a
fair market hourly rate for any material time. Producer agrees, for itself and
on behalf of all performers in the Show, that such photographs and interview
material may be used by Theater for any promotional and publicity purposes as
Theater shall determine for the term of this agreement in its sole and absolute
discretion; and Producer, for itself and on behalf of its performers, completely
releases, Theater from any liability resulting from the use of such material.
All promotional and publicity materials created at the expense or through the
effort of Theater and approved by the Producer shall be the sole property of
Theater, and Producer agrees to sign and to require its performers to sign, as
may be reasonably determined, any and all releases, acknowledgements or such
other documentations as Theater may request from time to time in connection
with.
15. TAXES AND INSURANCE. Producer shall be solely responsible for and
shall pay when due all federal income tax withholding, FICA, social security,
payment of workers' compensation where required by law and payroll taxes on
behalf of Producerj Personnel. Producer shall provide evidence satisfactory to
Theater that
worker's compensation insurance coverage is being carried by Producer and,
when requested by Theater, evidence satisfactory to Theater that payment of
all the foregoing payroll burden has been made. Each party to this contract
hereby waives its right to subrogation.
16. INDEPENDENT CONTRACTOR. Producer is and shall be in the performance
of all work, services and activities under this Agreement an independent
contractor. No term or condition under this Agreement nor any method or manner
of payment hereunder shall create any relationship between Theater and Producer
other than as expressed in this paragraph. Producer personnel shall not in any
way, at any time, or under any circumstances, be or be construed to be
employees, agents, representatives or personnel of Theater.
17. INDEMNIFICATION. Producer shall defend, indemnity, and hold Theater
completely free and harmless from and against any and all claims, demands, suits
and actions which are the result of negligence by anyone not a party to this
Agreement for loss, injury, damage, or liability from bodily injury and property
damage arising directly or indirectly out of Producer's negligence with respect
to performance of the Show or of this Agreement. Producer shall carry
commercial liability insurance to insure against such risks.
18. PARKING. Theatre shall make parking available for the show to the
full extent that parking is available to the Theatre under its lease of the
property under which the Show will be permitted.
19. MISCELLANEOUS PROVISIONS
a. Time is of the essence of this Agreement and the performance of
each and every provisions hereof.
b. Except as otherwise provided herein, this Agreement shall be
binding upon and shall inure to the benefit of the parties, their permitted
successors and assigns.
c. Whenever the context so requires, the use of any gender shall be
applicable to all genders, the singular number shall include the plural and the
plural gender.
d. The law of the State of Tennessee shall govern the validity,
performance and enforcement of this Agreement.
e. If either party to this Agreement shall institute any action or
proceeding under the provisions of this Agreement, the prevailing party in such
action or proceeding shall be entitled to recover all of its costs and
reasonable attorney's fees.
f. The failure of Theater to insist upon performance of any of the
provisions of this Agreement in any one or more instances shall not be a waiver
thereafter of its right to full performance of all the provisions of this
Agreement when any performance is due. No waiver of a breach of any of the
covenants, conditions, terms of provisions of this Agreement shall be construed
to be a waiver of any succeeding breach of the same of any other covenant,
condition, term or provisions. All rights and remedies created by this
Agreement are cumulative and the use of one remedy shall not be taken to exclude
or waive the right to the use of another.
g. In case provision contained in this Agreement shall be held to be
illegal, invalid or unenforceable, the legality, validity and enforceability of
all remaining provisions shall not be in any way affected of impaired thereby.
h. Captions and/or headings have been inserted for convenience of
reference only and are not to be construed or considered to be a part hereof and
shall not in any way modify, restrict or amend any of the terms or provisions
hereof.
Executed this 24th day of September, 1996.
COUNTY TONITE THEATRE, LLC. COUNTY TONITE ENTERPRISES, INC.
/s/ XXXX X. XXXXXX /s/ XXXX X. XXXXXX
------------------------------ -----------------------------------
Xxxx X. Xxxxxx, Chief Manager Xxxx X. Xxxxxx, Chief Manager
