LEASE AGREEMENT
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THIS LEASE AGREEMENT (the "Lease") is made and entered into the ______
day of ______________, 1999, by and between TREASURE LAKE R.V. RESORT CAMPING
CLUB, INC., a Missouri non-profit corporation of Branson, Missouri ("Lessor")
and ITEC ATTRACTIONS, INC., a Nevada corporation, successor to INTERNATIONAL
TOURIST ENTERTAINMENT CORPORATION, a U.S. Virgin Islands corporation,
("Lessee").
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree as follows:
1. LEASE GRANT. The Lessor hereby leases to the Lessee and the Lessee
does hereby take as Lessee from the Lessor, the real property, located in
Branson, Missouri and more particularly described in Exhibit A, attached hereto
and made a part hereof by reference (the "Premises") together with improvements
now or hereafter to be constructed on said real property.
2. TERM. The term of this Lease shall begin on the _____ day of
____________, 1999 (the "Effective Date"), and shall continue for a period
coextensive with the term, or any extension or reduction thereof, set forth in
that certain Ground Lease Agreement entered into between Lessor and Lessee on
the 16th day of February, 1993 (the "Original Ground Lease"), unless terminated
under any other provision of this Lease.
3. RENT. Lessee shall pay to Lessor during the term of this Lease the
amount of Twenty Thousand Dollars ($20,000.00) per calendar year (the "Base
Rent"), in equally amortized monthly installments payable, without demand, in
advance on the first day of each calendar month at Xxx Xxxxxxxx Xxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000. The first monthly installment shall be payable on the
first day of the seventh (7th) month after the execution of this Lease
Agreement. Time is of the essence in the payment of rent. Rent for any partial
year shall be prorated at the rate of one twelfth (1/12) of the annual rent for
each month of such partial year and rent for any partial month shall be prorated
on a per diem basis.
Lessee shall pay to Lessor, as additional rent, for any area of the
Premises exceeding 1.5 acres, a sum equal to the same rate per square foot as
the Base Rent of Twenty Thousand Dollars ($20,000.00) per year relates to 1.5
acres. Said additional rent shall be payable at the same time and in the same
manner as the Base Rent.
Lessee has contracted with Surrey Vacation Resorts, a Missouri
corporation ("Surrey"), whereby Surrey has committed to furnish sufficient fill
dirt (currently estimated at approximately 42,900 cubic yards) to the Premises
in order to permit Lessee to construct a parking lot on the Premises (the
"Parking Lot"). In the event that Surrey shall breach its obligations to Lessee
and fail to provide sufficient fill dirt to permit Lessee to construct and
complete the Parking Lot within the first six (6) months of this Lease, then the
Base Rent shall be reduced beginning with the seventh month from the scheduled
Twenty Thousand Dollars ($20,000.00) per year to Five Thousand Dollars
($5,000.00) per year (prorated in equally amortized monthly installments) until
the earlier of (i) the first month following completion or use of the Parking
Lot, or (ii) the third anniversary of the execution of this Lease.
4. CONDITION. Lessee has fully inspected the Premises and accepts the
same in an "AS IS" condition, acknowledging that Lessor has no duty to make any
changes, alterations or repairs to the Premises prior to or during this Lease,
other than those resulting from the negligence or omissions of Lessor, its
agents, employees or contractors.
5. LESSEES PROPERTY. Lessee agrees that any furnishings, fixtures,
equipment, merchandise and other personal property of Lessee or persons claiming
under Lessee which may be on the Premises shall be at the sole risk and hazard
of Lessee. Lessee shall pay all taxes levied, imposed or assessed against the
furniture, fixtures, leasehold improvements, equipment, signs and any other of
Lessee's personal or other property located in or upon the Premises and any and
all sales and use taxes levied, imposed or assessed against the business
transactions of Lessee.
6. EXPENSES. Lessee shall pay for any and all utility services and
expenses required for the operation of or furnished to or consumed on the
Premises including, without limitation, all gas, water and electric utilities,
telephone, janitor, maintenance and trash removal expenses. Lessor shall pay all
property taxes associated with the Premises during the Term, and Lessee shall on
demand, reimburse Lessor for such payment. It is intended that during the term
of this Lease, the Base Rent, together with any additional rent as set forth
elsewhere herein, shall be absolutely net to Lessor of all expenses incident to
the Premises and this Lease.
7. MAINTENANCE. Lessee shall keep the Premises free from refuse and
shall maintain the Premises in a clean, safe and presentable condition, free
from nuisance and hazardous materials, as required by all applicable laws,
ordinances, codes and regulations. Lessee shall also repair all damage of any
kind to the Premises occurring during this Lease, provided, however, Lessee will
be permitted to determine in its sole discretion whether to repair or replace
any damaged or destroyed Improvements (as defined below). Lessee shall not
suffer or permit any lien or encumbrance (except for inchoate liens) to attach
to the Premises by reason of any work done or performed or any material or
materials furnished by or to the Lessee. Lessee covenants to indemnify, hold
harmless and defend Lessor, its successors and assigns, from any and all such
claims.
8. IMPROVEMENTS. Lessee may, but shall not be required to construct
upon the Premises, at such time or times as Lessee shall deem it to be
appropriate, such improvements as Lessee shall determine to be most appropriate
for its economic use of the Premises. All such improvements shall be constructed
in accordance with applicable insurance requirements, legal requirements, and in
a good and workmanlike manner. Such improvements shall comply with all
applicable code requirements from the public authorities with jurisdiction over
the Premises. Lessee shall comply with any requirements of the City of Branson,
Missouri regarding the replacement of trees which are removed to construct
improvements. To the fullest extent permissible by the City of Branson,
Missouri, Lessee shall place any replacement trees on property controlled by
Lessor, at such locations as Lessor may designate. "Improvements" means the
building or buildings, signs, other structures, site work, pavement and
landscaping currently in place or to be erected, constructed or placed upon or
to become a part of the Premises and all replacements thereof, and additions and
improvements thereto. All improvements made for or installed in the Premises by
Lessee shall become the property of Lessor upon the expiration or earlier
termination of this Lease.
Lessor shall, at Lessee's sole cost and expense, cooperate with Lessee
to enable Lessee to obtain all permits, zoning changes, approvals of
governmental entities or other parties, easements, utilities and other matters
reasonably necessary to enable Lessee to construct and operate the Improvements.
9. MECHANIC'S LIEN. Lessee will not permit any mechanic's lien or liens
to be placed upon the Premises (except for inchoate liens). Nothing in this
Lease shall be deemed or construed in any way as constituting the request of
Lessor, expressed or implied, to any person, for the performance of any labor or
the furnishing of any materials for all or part of the Premises. If any lien is
claimed against the Premises for services or materials provided at the request
or for the benefit of Lessee, then, in addition to any other right or remedy of
Lessor, if (1) Lessee has not caused such lien to be discharged of record or
bonded within ninety (90) days after it receives written notice from Lessor of
the filing of such lien or (2) Lessee has not contested by appropriate
proceedings, the amount, validity, or application of any such lien which suspend
the collection thereof pending final determination of such proceedings, then
Lessor may notify Lessee that such continuing lien constitutes an event of
default.
10. LIABILITY. Lessor shall not be liable to Lessee or Lessee's
customers, licensees, agents, guests or employees for any injury or damages to
its, his or their persons or property by any cause except the direct and active
negligence of or intentional acts of Lessor.
11. INSURANCE. At all times during this Lease, Lessee shall, at its
sole cost and expense, (i) maintain, in full force and effect, a policy of
commercial general liability insurance, including contractual liability
coverage, on an occurrence form, providing coverage against claims for bodily
injury, death and property damage, with coverage of a minimum of One Million
Dollars ($1,000,000.00) per occurrence, naming Lessor as an additional insured,
and (ii) maintain, in full force and effect, a policy of workers' compensation
insurance providing full statutory coverage for the employees of Lessee under
the Missouri Workers' Compensation Law, including employers' liability coverage
with a minimum limit per occurrence of Five Hundred Thousand Dollars
($500,000.00).
Compliance with the above insurance requirements shall not limit
Lessee's liability in any way.
Upon execution of this Lease, annually at policy renewals, and any
other time upon written or oral request by Lessor, Lessee shall deliver
certificates of insurance evidencing insurance coverages to be maintained
hereunder. Each certificate shall provide that the insurer will not cancel or
materially amend such policies except after thirty (30) days written notice to
Lessor.
12. INDEMNIFICATION. Lessee shall indemnify and hold Lessor, its
members, officers, directors, employees, agents, successors and assigns,
harmless from any and all liabilities, losses, damages, costs, expenses
(including reasonable attorneys' fees and expenses) causes of action, suits,
claims, demands or judgments of any nature arising from (a) injury to or death
of any person, or damage to or loss of property on the Premises or connected
with the use, condition or occupancy of the Premises, (b) Lessee's violation of
this Lease, (c) any act or omission of Lessee or their agents or invitees, or
(d) Lessee's use, generation, storage, release or disposal of any hazardous
materials or environmentally threatening condition or material on the Premises.
Lessee shall also indemnify and hold Lessor harmless from any and all liability,
cost or expense arising out of or connected with the business of Lessee.
13. ASSIGNMENT AND SUB-LETTING. Lessee shall have no right to assign or
sub-let the Premises, or any part thereof, without the written consent of
Lessor, which consent shall not be unreasonably withheld. Notwithstanding the
foregoing, Lessee may assign or sub-let the Premises in conjunction with any
assignment or sublease permitted under Section 14 of the Original Ground Lease.
14. USE OF THE PREMISES. The Premises shall not be used for any illegal
purposes or in violation of any legal requirement of any public authority, or in
any manner to create any nuance or trespass, or to make void or voidable any
insurance on the Premises. The Lessee shall not permit the Premises, or any part
thereof, to be used in any business having as its primary source of income, the
sale of alcoholic beverages.
15. CARE OF THE PREMISES BY LESSEE. Lessee shall not commit or allow
any waste to be committed on any portion of the Premises and at the termination
of this Lease, Lessee shall deliver the Premises to Lessor in as good condition
as at the commencement date, ordinary wear and use excepted. Lessee will, at
Lessee's sole expense, take good care of the Premises and the appurtenances
therein. Subsequent to the execution of this Lease, the Lessor shall have no
right or obligation to make any repairs, improvements or alterations whatsoever
to the Premises except for repairs of latent defects not discoverable by Lessee
in the exercise of reasonable diligence. The Lessee shall service, keep and
maintain the Premises and all installed fixtures and systems, including, without
limitation, all driveways, parking lots, walkways, landscaped areas, plumbing,
wiring, piping, fixtures, doors, equipment, heating, air conditioning and
electrical systems and appurtenances serving the Premises in good order and
repair during the lease term.
16. CONDEMNATION. If all of the Premises shall be taken in a
condemnation proceeding, or if a portion thereof shall be taken which materially
interferes with the use and operation of the Premises by Lessee, this Lease
shall terminate as of the date of such taking. If less than all of the Premises
shall be taken in a condemnation proceeding, but such taking does not materially
interfere with the use of the Premises by Lessee, then this Lease will continue
and the rights under this Lease shall not change, provided, however, the amount
of rent that Lessee is thereafter required to pay to Lessor shall be reduced for
any area of the Premises taken in such condemnation by an amount equal to the
same rate per square foot as the Base Rent of Twenty Thousand Dollars
($20,000.00) per year relates to 1.5 acres. Lessee shall have no right to any
proceeds of any condemnation award.
17. INSPECTION OF PREMISES BY LESSOR. Lessor shall have the right to
enter the Premises at all reasonable times for the purpose of inspecting the
same, or for exhibiting the Premises for purposes of appraisal, inspection,
sale, mortgage or re-letting or for repair in the event of loss.
18. REPRESENTATIONS AND WARRANTIES OF LESSOR. The following
representations and warranties set forth in the Original Ground Lease are hereby
made by Lessor with respect to the Premises as if set forth in haec verba:
6.1(a), 6.1(b), 6.1(c), 6.1(f), 6.1(g) and 6.1(h).
19. REPRESENTATIONS AND WARRANTIES OF LESSEE. The following
representations and warranties set forth in the Original Ground Lease are hereby
made by Lessee with respect to the Premises as if set forth in haec verba:
6.2(a) and 6.2(b).
20. RIGHT OF FIRST REFUSAL AND PURCHASE. If Lessor determines to sell
the Premises to a third party, Lessee shall have the right of first refusal to
acquire the Premises from Lessor. Lessee's right of first refusal to acquire the
Premises under this Section shall be upon the same terms and conditions as are
set forth in Section 27 of the Original Ground Lease.
21. EVENTS OF DEFAULT. The happening of any one or more of the
following events (if Lessee shall fail to cure, remedy or correct such event
within thirty (30) days after written notice from Lessor) shall constitute a
breach of this Lease by Lessee: (a) the failure of Lessee to pay any rent or any
other sums of money due hereunder; (b) the failure of Lessee to comply with any
provision of this Lease; (c) the failure to comply with any provision of the
Ground Lease Agreement dated the 16th day of February, 1993 entered into by the
parties; (d) the taking of the leasehold in execution or other process of law in
any action against Lessee; (e) the filing of any bankruptcy or similar
proceeding by or against Lessee under any applicable law; (f) the appointment of
a receiver or trustee for Lessee's leasehold interest in the Premises or for all
or a substantial part of the assets of Lessee; and, (g) any other act or
omission designated as an event of default in this Lease.
22. REMEDIES ON DEFAULT. Upon the occurrence of any event of default by
Lessee, Lessor shall have the option, upon written notice to Lessee, to declare
this Lease to be terminated and upon such termination, all unpaid rental for the
remainder of the Lease term shall be immediately due and payable. Further, upon
such termination, Lessee shall remove all of Lessee's personal property
(including movable equipment and trade fixtures) and Lessee shall repair all
injury done by or in connection with the installation or removal of said
property and surrender the Premises (together with all keys and other access
devices to the Premises) in as good a condition as they were at the beginning of
the Lease term, reasonable wear and tear excepted. All property of Lessee
remaining on the Premises thereafter shall be deemed conclusively abandoned and
may, at the election of Lessor, either be retained as Lessor's property or be
removed and disposed of by Lessor. In the event of termination of the Lease,
Lessee's interest in this Lease shall be forfeited and Lessee shall be
considered a tenant from month to month for purposes of an action by Lessor to
recover rent and possession. If Lessor is required to utilize the courts to
enforce this agreement, Lessor shall be entitled to recover reasonable attorney
fees and court cost, in addition to any other relief sought.
23. RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided by
this Lease are cumulative and the use of any one right or remedy by either party
shall not preclude or waive its right to use any or all other remedies. Said
rights and remedies are given in addition to any other rights the parties may
have by law, statute, ordinance or otherwise.
24. RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall be
deemed or construed by the parties hereto, nor by any third party, as creating
the relationship of principal and agent or of partnership or of joint venture
between Lessor and Lessee, it being understood and agreed that no provision
contained herein, nor any acts of the parties herein shall be deemed to create
any relationship between the parties other than the relationship of Lessor and
Lessee.
25. WAIVER OF DEFAULT. No waiver by the parties hereto of any default
or breach of any term, condition or covenant of this Lease shall be deemed to be
a waiver of the same or any other term, condition or covenant contained herein.
26. ENTIRE AGREEMENT. This agreement represents the entire agreement
between the parties and no other agreements, warranties or representations of
any kind are made by either party except as expressly contained or referenced
herein. This agreement can only be amended in writing by a document signed by
both Lessor and Lessee.
27. GOVERNING LAW AND VENUE. This Lease and the rights and obligations
of the parties hereto are governed by the laws of the State of Missouri. Each
party agrees that any cause of action which may arise from this Lease or the
rights and obligations of the parties hereto, shall be brought in the Court of
the State of Missouri in Taney County, Missouri.
28. ATTORNEYS' FEES. The prevailing party in any action arising under
the terms of this Lease shall be entitled to recover the costs and a reasonable
attorneys' fees, at trial, in all administrative proceedings and appeals, and in
all post judgment enforcement and collection actions, and any judgment so
entered shall reserve jurisdiction for purposes of assessing such post judgment
costs and attorneys' fees.
29. FURTHER ASSURANCES. Lessor and Lessee agree that they will, from
time to time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered such supplements hereto and such further instruments
as may be reasonably required for correcting any inadequate or incorrect
description of the Premises hereby leased or intended so to be or for carrying
out the intention hereof.
30. NOTICES. Any and all notices or other communication required or
desired to be given hereunder by any party shall be in writing. A notice shall
be validly given or made to another party if delivered either personally or upon
receipt if deposited in the United States mail, certified or registered, postage
prepaid and if addressed to the applicable party as set forth below.
If to Lessor: TREASURE LAKE R.V. CAMPING CLUB
0 Xxxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
With a copy (which shall not constitute notice) to:
XXXXXX & XXXXXX, L.L.P.
ATTORNEYS AT LAW
Attention: Xxx X. Xxx
0000 Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
If to Lessee: ITEC ATTRACTIONS
0000 Xxxxxxxx xx xxx Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
With a copy (which shall not constitute notice) to:
XXXXXXX, XXXXX & XXXXXXXX, P.C.
Attention: Xxxxxx X. O'Dell
0000 Xxxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
31. DUPLICATE ORIGINALS. This Lease may be executed in duplicate and
each such executed duplicate shall constitute an original.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day
and date first above written.
TREASURE LAKE R.V. RESORT
CAMPING CLUB, INC., a Missouri
Non-Profit Corporation
By: __________________________
Title: _______________________
"LESSOR"
ITEC ATTRACTIONS, INC., a
Nevada Corporation, successor
to INTERNATIONAL TOURIST
ENTERTAINMENT CORPORATION
By: __________________________
Title: _______________________
"LESSEE"
Lease Area No. 3 Description:
A Parcel of land situated in the N 1/2 of the SE 1/4 of the NW 1/4 of Section
35, Township 23 North, Range 22 West, in the City of Branson, Taney County,
Missouri, Being more particularly described as follows: Beginning at a 5/8" iron
pin set by RLS 2190 marking the Northwest corner of the SE 1/4 of the NW 1/4,
said point being the Northwest corner of the Replat Commerce Park West Plat Book
22, at Page 42, a commercial subdivision plat recorded in Plat Book 26, at Pages
76 through 79 of the records of Taney County, Missouri, Thence S OO 05'34" E,
along the West line of said Replat Commerce Park West Plat Book 22, at page 42,
a distance of 538.60 feet to a point on the North right-of-way line of the
Shepherd of the Hills Expressway; Along the North right-of-way line of the
Shepherd of the Hills Expressway as follows: Thence S 87 34'48" W, a distance of
317.00 feet; Thence Westerly along a 2.2228 degree curve to the right, 43.79
feet (said curve having a radius of 2455.00 feet); Thence S 88 36'07" W, a
distance of 287.25 feet; Thence Westerly along a 1.6632 degree curve to the
left, 11.97 feet (said curve having a radius of 3445.00 feet) to a point of the
East line of the ITEC Property Lease; Then N 08 45'26" W, leaving the North
right-of-way line of the Shepherd of the Hills Expressway and along the East
line of the ITEC Property Lease, a distance of 109.85 feet to the New Point of
Beginning; Along the East line of the ITEC Property Lease as follows: Thence
continuing N 08 45'26" W, a distance of 14.07 feet, Thence N 05 55'39" E, a
distance of 131,93 feet; Thence N 20 46'01" W, a distance of 106.73 feet; Thence
N 08 45'26" W, a distance of 96.80 feet; Thence S 88 34'53" E, leaving the East
line of the ITEC Property Lease, a distance of 101.49 feet; Thence S 20 29'32"
E, a distance of 252.72 feet; Thence Southerly along a 66.6230 degree curve to
the right, 125.18 feet (said curve having a radius of 86.00 feet); Thence S 62
54'26" W, a distance of 98.06 feet; Thence Southwesterly along a 89.5247 degree
curve to the left, 1.13 feet (said curve having a radius of 64.00 feet) to the
New Point of Beginning; Containing 0.98 acres of land, more or less, Subject to
all easements and restrictions of record.
