New York-Tuxedo Agreement of Lease and License Agreement - Sterling Forest Corp. and Creative Faires Ltd.
AGREEMENT OF LEASE AND
LICENSE AGREEMENT
STERLING FOREST CORPORATION, LANDLORD/LICENSOR
WITH
CREATIVE FAIRES LTD., TENANT/LICENSEE
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS
ARTICLE 2 PREMISES AND TERM
ARTICLE 3 RENT
ARTICLE 4 USE OF INSURANCE PROCEEDS
ARTICLE 5 CONDEMNATION
ARTICLE 6 ASSIGNMENT AND SUBLETTING
ARTICLE 7 MAINTENANCE AND REPAIRS
ARTICLE 8 SFC'S RIGHT OF REVIEW AND APPROVAL OF
IMPROVEMENTS
ARTICLE 9 REQUIREMENTS OF GOVERNMENTAL AUTHORITIES
AND OF INSURANCE UNDERWRITERS AND POLICIES
ARTICLE 10 SECURITY DEPOSIT
ARTICLE 11 DISCHARGE OF LIENS
ARTICLE 12 NO REPRESENTATIONS BY SFC
ARTICLE 13 SFC NOT LIABLE FOR INJURY OR DAMAGE
ARTICLE 14 INDEMNIFICATIONS
ARTICLE 15 RIGHT OF ACCESS AND INSPECTION
ARTICLE 16 PERMITTED USE; NO UNLAWFUL OCCUPANCY
ARTICLE 17 EVENTS OF DEFAULT, CONDITIONAL LIMITATIONS,
REMEDIES, ETC.
ARTICLE 18 NOTICES
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ARTICLE 19 ESTOPPEL CERTIFICATES
ARTICLE 20 SURRENDER AT END OF TERM
ARTICLE 21 ENTIRE AGREEMENT; NO ORAL MODIFICATIONS
ARTICLE 22 QUIET ENJOYMENT
ARTICLE 23 INVALIDITY OF CERTAIN PROVISIONS
ARTICLE 24 NO RECORDING OF MEMORANDUM OF LEASE
ARTICLE 25 LIMITATION OF LIABILITY
ARTICLE 26 MISCELLANEOUS
ARTICLE 27 HAZARDOUS MATERIALS
ARTICLE 28 WAIVER OF TRIAL BY JURY AND COUNTERCLAIMS
IN SUMMARY PROCEEDINGS; JURISDICTION
AND VENUE; SERVICE OF PROCESS
ARTICLE 29 FEES AND EXPENSES
ARTICLE 30 WAIVER OF REDEMPTION
ARTICLE 31 SUBORDINATION
ARTICLE 32 INSURANCE
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AGREEMENT OF LEASE AND LICENSE AGREEMENT made as of the day of
June, 1996 between STERLING FOREST CORPORATION, a corporation established
under the laws of the State of Delaware, as Landlord and Licensor, having an
office at Rural Road 1, Sterling Lake Road, Tuxedo, New York 10987 and
CREATIVE FAIRES LTD., a corporation established under the laws of the State of
New York with an address at P.O. Box 1688, Westhampton Beach, New York 11978,
as Tenant and Licensee.
W I T N E S S E T H
It is hereby mutually covenanted and agreed by and between the
parties hereto that this Lease and License Agreement ("Agreement") is made
upon the terms, covenants and conditions hereinafter set forth.
ARTICLE 1
DEFINITIONS
SECTION 1.01. The terms defined in this Article shall, for all
purposes of this Agreement and all supplemental agreements, have the
following meanings:
(a) "Agreement" or "this Agreement" means this Agreement of Lease and
License Agreement, and all amendments and modifications.
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(b) "CFL" means Creative Faires Ltd., its agents, representatives,
employees, contractors, successors and assigns.
(c) "Commencement Date" means the date of commencement of the Term
(hereinafter defined), as set forth in Article 2.
(d) "Default" means any condition or event which constitutes or would,
after notice or lapse of time, or both, constitute an Event of Default
(hereinafter deemed).
(e) "Event of Default" shall have the meaning provided in Section 17.01.
(f) "Expiration Date" means the date of the expiration of the Term as
set forth in Article 2.
(g) "Faire" means CFL's Renaissance-theme craft production, conducted
over an approximately eight-week period during July, August and September.
(h) "Forest of Fear" means CFL's Halloween-oriented production,
conducted over an approximately six-week period subsequent to the conclusion
of the Faire, during September and October.
"Leased Premises" means the parcel of SFC's real property and the
improvements and fixtures thereon covered by this Agreement, as depicted in
Schedule "A". The Leased Premises constitute a portion of tax lot 1-1-52 on
the tax map of the Town of Tuxedo.
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(j) "Licensed Premises" means SFC's real property, improvements and
fixtures that CFL may use under the terms of this Agreement ancillary to its
use of the Leased Premises, at the times and on the conditions set forth
below in section 2.02, as generally depicted in Schedule "A".
(k) "Operating Days" means the days of actual operation of the Faire and
the Forest of Fear.
(l) "Person" means an individual, corporation, partnership, joint
venture, estate, trust, unincorporated association, any Federal, State,
County or municipal government or any bureau, department or agency thereof,
or any other legally cognizable entity.
(m) "Premises" means the Leased Premises and the Licensed Premises, or
any portion thereof.
(n) "Rent" shall mean all amounts periodically payable by CFL pursuant
to the Terms of this Agreement, together with such other items designated as
Additional Rent in this Agreement.
(o) "SFC" means Sterling Forest Corporation, or its utility
subsidiaries, South County Services Company, Inc., South County Water
Corporation, and South County Sewer Corporation, their agents,
representatives, employees, contractors, successors and assigns.
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(p) "Special Permit" means the resolution of the Zoning Board of Appeals
of the Town of Tuxedo adopted October 27, 1976, granting to SFC a special
permit to use a portion of SFC's lands, including the Premises, as a
social/recreation/visitor center and outdoor recreational facility, a copy of
which is annexed as Schedule "B".
(q) "Term" means the term of this Agreement as set forth in Article 2.
ARTICLE 2
PREMISES AND TERM
SECTION 2.01. (a) SFC hereby leases to CFL, and CFL hereby takes from
SFC, the Leased Premises, for the uses permitted in this Agreement, TO HAVE
AND TO HOLD unto CFL, its successors and assigns, for a term of four (4)
years and seven (7) months (the "Term"); covering five (5) operating seasons
of the Faire and the Forest of Fear. The Term shall commence as of the 1st
day of May, 1996 (the "Commencement Date") and shall expire on the 31st day
of December, 2000 (the "Expiration Date"), or on such earlier date upon
which this Agreement may be terminated.
SECTION 2.02. SFC grants a license to CFL to use the Licensed Premises
ancillary to CFL's permitted use of the Leased Premises, as follows: (i) on
Operating Days, CFL shall have the exclusive use of the parking areas
designated on Schedule "A"; (ii) from May 15 to November 1 of each year
during the Term, CFL shall have the non-exclusive
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use of SFC's Gardens Administration Building, as administrative office space
for the Faire and the Forest of Fear, and for no other purpose; (iii) SFC's
Ski Rental Shop may be used on a non-exclusive basis by CFL during the Faire
only and not during the Forest of Fear, as a dressing area and for no other
purpose. If used by CFL, the Ski Rental Shop will be completely vacated by
CFL within two weeks following the final Operating Day of the Faire, but in no
event later than October 15, in condition for use by SFC. The general
location of the aforementioned areas is indicated on Schedule "A". SFC's Ski
Center Cafeteria, and Pavilion are specifically excluded from this
Agreement and may not be used by CFL.
SECTION 2.03. Provided CFL is not then in default of any of its
obligations under this Agreement, at the end of the third year of the Term
SFC will discuss with CFL the possibility of extending the Term.
SECTION 2.04. The Licenses granted hereunder are in all respects
incidental to and contingent upon CFL's use of the Leased Premises only for
the purposes permitted under this Agreement, and on the continuation in full
force and effect of the leasehold created by this Agreement. In the event the
leasehold expires or is terminated for any reason, the Licenses granted
hereunder shall expire simultaneously.
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SECTION 2.05. The Licenses granted hereunder are revocable in whole or
in part by SFC on reasonable notice to CFL, (a) in the event SFC enters into
an agreement to convey title to the Licensed Premises to a third party who
objects to continuation of the Licenses, or (b) in the event SFC requires
exclusive possession of the Licensed Premises for its own purposes
(including, but not limited to, development thereof), or (c) if for any
reason beyond SFC's reasonable control (including, but not limited to acts of
God or condemnation or destruction of the improvements on the Licensed
Premises) the Licensed Premises or any portion thereof shall become
unavailable or unsuitable for CFL's permitted uses; PROVIDED, however, that
(i) no such revocation by SFC shall materially reduce the area available to
CFL for parking, unless SFC offers CFL commercially reasonable substitute
parking facilities, and (ii) if SFC revokes CFL's License to use the SFC
Gardens Administration Building, the Rent reserved in Section 3.02 for each
remaining year in the Term shall be reduced by ten thousand dollars
($10,000.00) per year, and the remaining Rent payment installments in Section
3.02 shall be adjusted proportionately to reflect the reduction. SFC agrees
that it will not revoke CFL's License to use the SFC Gardens Administration
Building so that the effective date of the revocation would fall during the
actual operation of a Faire or a Forest of Fear.
SECTION 2.06. CFL may request, and SFC may in its discretion grant
permission to CFL, to erect and maintain temporary signs relating to the
Faire or the Forest of Fear on
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SFC's property other than the Premises. SFC may require CFL to erect and
maintain directional signage at designated locations on SFC's property other
than the Premises, to control traffic flow through SFC's property during
operation of the Faire and the Forest of Fear. CFL is solely responsible for
all aspects of advertising, marketing or promoting the Faire and the Forest
of Fear. All permitted or required signage shall be provided, installed,
maintained and removed at CFL's sole cost and expense, and shall in every
respect comply with all applicable laws and regulations.
ARTICLE 3
RENT
SECTION 3.01. CFL shall pay to SFC, without notice or demand, Rent as
set forth herein. Acceptable forms of payment of Rent include cash, money
order, cashier's or certified check payable to the order of SFC, CFL's check
drawn on a New York Clearing House Member bank or bank, savings bank or trust
company that maintains an office in Orange or Rockland County, New York, or
Bergen or Passaic County, New Jersey, payable to the order of SFC, or a wire
transfer of immediately available funds to an account designated by SFC.
Third party checks endorsed to SFC's order are not acceptable.
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SECTION 3.02. CFL shall pay a total of one million four hundred thirty-
three thousand seven hundred fifty-four and 00/100 dollars ($1,433,734.00) to
SFC, in five (5) annual payments, as follows:
Year 1 - $270,000.00
Year 2 - $270,000.00
Year 3 - $283,500.00
Year 4 - $297,675.00
Year 5 - $312,559.00
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Total Rent Reserved $1,433,734.00
Each annual payment shall be paid by CFL in four installments, on or before
May 1, July 30, August 30 and September 30 of each year during the Term as
follows:
Year 1 Rent Payment Installment
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on or before June 15, 1996 $45,000.00
on or before July 30, 1996 $45,000.00
on or before August 30, 1996 $90,000.00
on or before September 30, 1996 $90,000.00
Year 2
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on or before May 1, 1997 $45,000.00
on or before July 30, 1997 $45,000.00
on or before August 30, 1997 $90,000.00
on or before September 30, 1997 $90,000.00
Year 3
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on or before May 1, 1998 $47,250.00
on or before July 30. 1998 $47,250.00
on or before August 30, 1998 $94,500.00
on or before September 30, 1998 $94,500.00
Year 4
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on or before May 1, 1999 $49,612.50
on or before July 30, 1999 $49,612.50
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on or before August 30, 1999 $99,225.00
on or before September 30, 1999 $99,225.00
Year 5
on or before May 1, 2000 $ 52,093.16
on or before July 30, 2000 $ 52,093.17
on or before August 30, 2000 $104,186.33
on or before September 30, 2000 $104,186.34
Late payment of Rent shall entitle SFC to collect from CFL, as
Additional Rent, a late fee on all overdue Rent for each day the Rent
remains unpaid, equal to eighteen percent (18%) PER ANNUM, prorated for the
number of days the Rent remains unpaid. In no event, however, will the rate
charged exceed the legally permissible interest rate under the usury laws of
the State of New York. In addition to such late charges, SFC will charge a
$50.00 administrative fee for each check not honored by SFC's bank, including
each check returned to SFC as drawn on insufficient funds.
SECTION 3.03. Rent shall be absolutely net to SFC without any abatement,
deduction, counterclaim, set-off or offset whatsoever, so that this Agreement
shall yield, net to SFC, the fUll amounts payable as Rent. The Security
Deposit may not be applied by CFL towards payment of the Rent.
SECTION 3.04. CFL shall pay to SFC, as Additional Rent, all increases in
real property taxes that result from increases in assessed valuation of the
Leased Premises attributable to CFL's improvement thereof, over and above the
assessed valuation and real property taxes paid by SFC in the base year of
1995. SFC will notify CFL of all
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amounts to be paid by CFL pursuant to this paragraph, including the
calculation thereof, on or before October 1, of each year during the Term.
CFL will pay all such Additional Rent to SFC within fourteen (14) days of the
notice.
SECTION 3.05. The Rent and all Additional Rent reserved under this
Agreement are premised upon CFL's operation of the Faire for eight weekends
during July, August and September, and of the Forest of Fear for
approximately six weeks during September and October. Any significant
increase in the number of Operating Days will require an upwards adjustment
of the Rent and Additional Rent to be paid by CFL, in amounts and on terms to
be agreed upon between SFC and CFL prior to the institution of any such
expanded operating schedule. For purposes of this section, CFL's scheduling
of "make up" Operating Days due to adverse weather conditions, or of a
reasonable number of special promotions that may require additional Operating
Days within the period from July through October, shall not constitute a
"significant increase in the number of Operating Days."
ARTICLE 4
USE OF INSURANCE PROCEEDS
SECTION 4.01. If all or any part of SFC's or CFL's improvements
on the Leased Premises shall be substantially destroyed or damaged in whole
or in part by fire or other
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casualty of any kind or nature, ordinary or extraordinary, foreseen or
unforeseen, CFL shall give to SFC immediate notice thereof. Except as
otherwise provided below in Section 4.02, CFL shall repair, restore, replace
or rebuild the damaged improvements, subject to the provisions hereinafter
set forth, and only with SFC's approval of the plans for the reconstruction,
which approval shall not be unreasonably withheld. Notwithstanding the
foregoing, if within ten (10) days of CFL's notice to SFC set forth above in
this Article, SFC gives notice to CFL that it does not wish CFL to restore
the improvements destroyed, CFL shall not restore the improvements and CFL
shall not be under any obligation to do so. In the event SFC gives notice to
CFL that it does not wish CFL to restore the improvements destroyed, and as a
result CFL is unable to continue operation of the Faire, then this notice
shall be deemed to be an early termination by SFC in accordance with the
provisions of Article 17 of this Agreement.
SECTION 4.02. CFL may elect not to restore, replace or rebuild CFL
improvements that are substantially destroyed or damaged beyond repair;
provided, however, that no such election by CFL shall relieve CFL of its
obligations to pay Rent or from any of its other obligations under this
Agreement.
SECTION 4.03. Except as set forth above, no destruction of or damage to
the Premises, or to any improvements on the Premises or any part thereof
shall relieve CFL of its obligations to pay Rent or from any of its other
obligations under this Agreement.
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ARTICLE 5
CONDEMNATION
SECTION 5.01. If the whole of the Leased Premises shall be acquired or
condemned by eminent domain for any public or quasi-public use or purpose, or
if less than the whole of the Leased Premises shall be acquired or condemned
by eminent domain for any public or quasi-public use or purpose but the
portion of the Leased Premises remaining is not sufficient in size to permit
CFL to continue to conduct the Faire, then and in that event, the Term of
this Agreement shall expire on the date of the commencement of such
proceeding, the Rent apportioned and paid to the Expiration Date, and CFL
shall have no claim for the value of any unexpired term of said Agreement and
assigns to SFC CFL's entire interest in any such award. Nothing contained
herein shall be deemed a waiver by CFL of its right to present a claim in the
condemnation proceedings for loss of business profits, loss of goodwill or
moving expenses, should these items then be compensable as long as the
ultimate compensability of those items to CFL does not diminish any award to
SFC for the taking of the Leased Premises.
SECTION 5.02. If less than the whole of the Leased Premises shall be
acquired or condemned by eminent domain for any public or quasi public use or
purpose, and if the portion of the Leased Premises remaining is sufficient in
size to permit CFL to continue to conduct the Faire, then and in that event,
this Agreement shall continue on the balance
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of the Leased Premises with no adjustment in Rent, and CFL shall have no
claim for the value of any unexpired term of this Agreement on the portion of
the Premises acquired or condemned, and assigns to SFC CFL's entire interest
in such award.
SECTION 5.03. Notwithstanding the provisions of Section 5.01 above, if
an eminent domain proceeding for the whole of the Leased Premises is
commenced within sixty (60) days prior to the commencement of a Faire, or
while a Faire is in progress, and SFC remains in possession of the Leased
Premises, SFC shall permit CFL to continue in use and occupancy of the Leased
Premises notwithstanding the expiration of the Agreement, for a period not to
exceed six (6) months, for the sole purpose of concluding that one Faire and
Forest of Fear.
ARTICLE 6
ASSIGNMENT AND SUBLETTING
CFL and its successors and assigns shall not assign or sublet (whether
voluntarily or involuntarily) this Agreement, in whole or in part, without
SFC's prior written consent, which SFC may withhold in its sole discretion;
provided, however, that if the proposed assignment is to Renaissance
Entertainment Corporation, the guarantor hereof, SFC's consent may not be
unreasonably withheld. Nothing in this Article 6 shall prevent CFL from
entering into temporary license agreements with vendors or exhibitors to
occupy the
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Leased Premises and participate in the Faire or the Forest of Fear; provided,
however, (i) that no such agreement shall purport to convey any leasehold in
the Premises to any such vendor or exhibitor, (ii) that each such agreement
shall be in all respects consistent with and subject to CFL's obligations in
respect of the Premises as set forth in this Agreement, (iii) that no such
agreement shall relieve CFL of any liability under this Agreement, and (iv)
CFL shall use commercially reasonable efforts to ensure that neither the
Leased Premises, nor the Licensed Premises when CFL is in occupancy thereof,
are used by third parties for the purpose of disseminating information or
materials in opposition to SFC's Comprehensive Plan or other proposed land
uses by SFC. The consent of SFC to any assignment or sublease shall not
relieve CFL from any liability hereunder.
ARTICLE 7
MAINTENANCE AND REPAIRS
SECTION 7.01. CFL shall not commit or suffer, and shall use all
commercially reasonable precaution to prevent, waste, damage, or injury to
the Premises. CFL, at its sole cost and expense throughout the Term, shall
maintain in good order and repair, to SFC's reasonable satisfaction, all
improvements, all fixtures and other structures on the Leased Premises;
provided, however, that all repairs to and maintenance of water and
wastewater utilities infrastructure must be performed by SFC and CFL will pay
to SFC,
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on demand, the cost of such repairs, as Additional Rent. CFL shall have all
duties of complying with all laws, rules and regulations, ordinary and
extraordinary applicable to CFL's activities on the Premises, whether
foreseen or unforeseen. CFL will pay to SFC, as Additional Rent, the cost of
any damage to SFC property or equipment arising out of or in connection with
CFL's operations at or occupancy of the Premises, including but not limited
to damage caused to the Premises or adjacent areas by CFL personnel,
exhibitors, subcontractors or attendees. Damages assessed by SFC during the
Term will be Additional Rent immediately due from and payable by CFL upon
demand by SFC.
SECTION 7.02. CFL, at its sole cost and expense, shall keep the Leased
Premises, and the Licensed Premises when CFL is in occupancy thereof, clean
and free from rubbish and obstructions to access.
SECTION 7.03. For a separate fee, during the Term SFC will prepare and
repair, as requested by CFL, toilet and drinking facilities at the Premises.
In consideration for such services, CFL will pay SFC a fee equal to: SFC's
direct labor costs, payroll taxes and fringe benefits, plus 100%; plus the
invoice cost plus 20% of any materials furnished by SFC. SFC will present
CFL with an itemized statement for services rendered and materials provided
pursuant to this paragraph, and SFC's fee shall constitute Additional Rent
hereunder and shall be due and payable upon presentation of the statement.
Nothing
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in this paragraph shall obligate or require SFC to provide such services to
CFL, or to keep a maintenance crew on call on Operating Days.
SECTION 7.04. The annual installation and removal of the tent cover for
the Peacock Patio on the Leased Premises shall be the sole responsibility of
CFL. This tent cover is the property of SFC and will remain on the Leased
Premises after the end of the Term.
SECTION 7.05. SFC will arrange for Orange and Rockland Utilities to
activate electric meter service and the main electric service panel for each
meter service activated at the Premises for CFL's operations. CFL shall be
responsible for the installation of all electrical connections, outlets and
distribution required by CFL beyond the main service panels. CFL shall pay
all charges for all utilities (including installation charges, if any)
incurred by reason of CFL's operations or occupancy of the Premises during
the Term, including but not limited to electricity, water, sewer and
telephone.
(a) SFC shall render monthly invoices, and CFL shall pay for
electricity on a monthly basis from May through October each
year during the Term. Charges for electricity will be computed
as follows:
(i) CFL will pay to SFC the difference in dollars between
the actual billings to SFC by Orange & Rockland Utilities,
Inc. ("O&R") during the Term, for each of the meters listed on
Schedule "C" to this Agreement; and
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(ii) the "Comparable Billing" for each meter during the "Base Period".
The Base Period is the billing period that ended June 28, 1978;
and the Comparable Billing for each meter is the billing
attributable to that meter reflected in Schedule "C".
(b) All "demand charges" resulting from CFL's operations billed to SFC
by O&R in respect of the meters listed in Schedule "C" will be
reimbursed by CFL. This obligation of CFL will survive beyond the
end of the Term.
(c) SFC will render invoices and CFL will pay for water consumption
and sewer charges on a monthly basis from May through October each
year during the Term, (i) for water, SFC's cost, based upon actual
meter readings of water consumed for July, August and September,
and October, and at one half (1/2) SFC's cost for May and June;
and (ii) for sewer, SFC's cost (as of the date of this Agreement,
$3,900.00 per month), as the same may be adjusted from time to
time, for July, August and September, and October, and at one half (1/2)
SFC's cost for May and June; PROVIDED, however, that for sewer
charges for May, 1996 only, CFL shall pay one-third (1/3) of SFC's
cost.
SECTION 7.06. Except as otherwise expressly provided in this Article 7,
SFC 341 shall not be required to furnish any services, utilities or
facilities whatsoever to the
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Premises. During the Term, SFC shall have no duty or obligation to make any
alteration, change, improvement, replacement, restoration or repair to, or to
demolish, the Premises or the improvements thereon.
ARTICLE 8
SFC'S RIGHT OF REVIEW AND APPROVAL OF IMPROVEMENTS
CFL has previously constructed improvements on the Leased Premises.
During the Term of this Agreement and subject to all laws, regulations and
guidelines applicable to the Leased Premises, and in each case subject to
SFC's prior review and written approval, CFL may construct additional or
replacement improvements on the Leased Premises, consistent with CFL's
permitted uses of the Leased Premises and all other terms of this Agreement.
Prior to the construction of any improvement, CFL shall furnish SFC with plans
and specifications prepared by licensed professionals. All such plans and
specifications must be approved by SFC. CFL may alter, repair or reconstruct
any of the improvements it installs on the Leased Premises, however such
alteration, repair or reconstruction shall also be subject to the provisions
of this Article concerning the submittal of plans and the approval by SFC. It
shall be the obligation of CFL to secure the approval of all governmental
authorities as may be necessary for any construction on
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the Leased Premises, including securing such permits as may be applicable to
the construction.
ARTICLE 9
REQUIREMENTS OF GOVERNMENTAL AUTHORITIES
AND OF INSURANCE UNDERWRITERS AND POLICIES
SECTION 9.01. CFL, at its sole cost and expense, shall promptly comply
with all present and future laws, rules, orders, ordinances, regulations,
statutes, requirements and codes of all governental authorities now
existing or hereafter created, applicable to CFL's activities on the Leased
Premises, without regard to the nature of the work required to be done
whether or not the same involve or require any structural changes or
additions in or to the improvements now or hereinafter on the Leased
Premises, CFL also shall comply at its sole cost with any and all provisions
and requirements of any casualty, liability or other insurance policy
required to be carried by CFL under this Agreement.
SECTION 9.02. Without limiting the generality of the foregoing, CFL will
at all times abide by the terms and conditions of the Special Permit, and
will not, without SFC's prior written consent, take or permit any action or
fail to perform any obligation
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applicable to CFL's activities on the Premises in contravention of the
Special Permit. CFL agrees that it will promptly provide SFC with copies of
all notices of violation of any law, rule, ordinance, regulation, statute,
requirement or code and of all notices of inspection received by CFL or any
of CFL's contractors, vendors or exhibitors. CFL further agrees that it will
not submit or permit submittal of any application for any type of building or
land use determination (including, but not limited to, interpretation or
variance of the Special Permit) to any administrative or legislative body of
the Town of Tuxedo, without SFC's prior knowledge and written consent.
ARTICLE 10
SECURITY DEPOSIT
CFL has previously deposited with SFC the sum of $40,000.00 (together
with the additional sums to be deposited with SFC as provided below, the
"Security Deposit"), which shall be held by SFC as security for CFL's
performance of this Agreement. CFL agrees to deposit with SFC an additional
$35,000.00 to augment the Security Deposit, on or before August 1, 1997,
making the total Security Deposit to be held by SFC $75,000.00, which SFC
agrees to deposit in an interest-bearing account. Except as otherwise
provided below in the case of CFL's default, interest that accrues on the
Security Deposit shall be paid to CFL annually. If CFL defaults in respect of
any of its
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obligations under this Agreement, SFC may use, apply or retain all or any
part of the Security Deposit and interest accrued thereon to any sum as to
which CFL is in default, or to reimburse SFC for any amount which SFC may
expend or may be required to expend by reason of CFL's Default. CFL agrees to
provide SFC with a fully completed and signed form W-9 and any other form(s)
required by the bank holding the Security Deposit.
ARTICLE 11
DISCHARGE OF LIENS
SECTION 11.01 CFL will not, directly or indirectly, create or permit to
be created, or to remain, any lien of any kind, including but not limited to
mechanic's, vendor's, laborer's, materialmen's, or supplier's liens, which
are or may become an encumbrance upon the Premises or any portion thereof.
SECTION 11.02. CFL shall, with reasonable promptness, but in any event
within sixty (60) days after notice of any lien, remove any mechanic's,
laborer's or materialman's lien or any other lien, encumbrance or charge upon
the Premises or any part thereof, which arises out of any action or omission
by or on behalf of CFL, or any subtenant, licensee agent, employee or
representative of CFL.
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SECTION 11.03. Nothing in this Agreement shall be deemed or construed in
any way as constituting the consent or request of SFC, express or implied, by
inference or otherwise, to any contractor, subcontractor, laborer or
materialman for the performance of any labor or the furnishing of any
materials for any specific improvement, alteration to or repair of the
Premises or any part thereof, nor as giving CFL or its vendors or exhibitors
any right, power or authority to contract for or permit the rendering of any
services, or the furnishing of materials that would give rise to the filing
of any lien against any assets of SFC. Notice is hereby given, and CFL shall
cause all construction agreements to provide, that SFC shall not be liable
for any work performed or to be performed at the Premises for CFL or of any
materials furnished or to be furnished at the Premises for any of the foregoing.
ARTICLE 12
NO REPRESENTATIONS BY SFC
CFL has previously had possession of and has inspected the Premises and
all improvements thereon and accepts them in "as is" condition. CFL
acknowledges that no representations, statements or warranties, express or
implied, have been made by or on behalf of SFC with respect to the Premises
or this transaction or the laws applicable to this transaction, SFC or the
Premises; that CFL has relied on no such representations,
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statements, or warranties; and that SFC shall not in any event whatsoever be
liable by reason of any such claimed misrepresentation or breach of warranty.
ARTICLE 13
SFC NOT LIABLE FOR INJURY OR DAMAGE
SECTION 13.01. SFC shall not in any event whatsoever be liable for any
injury or damage to CFL (unless caused by a negligent act or omission of SFC,
its agents, servants, or employees) or to any other Person happening on, in
or about the Leased Premises, or the Licensed Premises when CFL is in
occupancy thereof and as a result of an act or omission of CFL, nor for any
injury or damage to the Premises or to any property belonging to CFL or to
any other Person (unless caused by a negligent act or omission of SFC, its
agents, servants or employees).
SECTION 13.02. SFC shall not be liable to CFL (unless caused by a
negligent act or omission of SFC, its agents, servants or employees) or to
any other Person for any failure or interruption of water supply, sewerage,
gas or electric current, nor for any injury or damage to any property of CFL
(unless actually caused by a negligent act or omission of SFC, its agents,
servants or employees) or to any Person or to the Premises caused by or
resulting from gasoline, oil, steam, gas, electricity, fire or hurricane,
tornado, flood, wind or similar storms or disturbances, or water, rain or
snow which may leak or flow from the
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street, sewer, gas mains or subsurface area or from any part of the Premises,
or leakage of gasoline or oil from pipes, appliances, tanks, sewer or
plumbing works therein, or from any other place, nor for interference with
light or other incorporeal hereditaments by anybody, or caused by any public
or quasi-public work.
ARTICLE 14
INDEMNIFICATIONS
SECTION 14.01. CFL agrees to defend and fully indemnify SFC against any
and all liability and costs, including but not limited to reasonable
attorneys' fees (whether incurred in a proceeding between SFC and CFL or
between SFC and a third party), incurred by SFC, resulting directly or
proximately from CFL's activities on the Premises. Without limiting the
generality of the foregoing, CFL shall promptly pay all of SFC's engineers',
architects' and reasonable attorneys' fees and disbursements, which may be
imposed upon or incurred by or asserted against SFC by reason of CFL's
actions or omissions during the Term. SFC agrees to defend and fully
indemnify CFL against any and all liability and costs, including but not
limited to reasonable attorneys' fees, incurred by CFL, resulting from the
negligent acts of SFC's agents or employees on the Premises.
SECTION 14.02. CFL represents and warrants that it has dealt with no
broker in connection with this Agreement. Without limiting the generality of
the foregoing Section
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14.01, CFL shall pay SFC's reasonable attorneys' fees if the foregoing
representation and warranty with respect to brokerage should be breached.
Section 14.03. The provisions of this Article 14 shall survive the
expiration of this Agreement for the applicable Statute of Limitations for
any claim made.
ARTICLE 15
RIGHT OF ACCESS AND INSPECTION
SECTION 15.01. CFL shall permit SFC and its agents or representatives to
enter the Premises at all reasonable times and (except in an emergency when
no prior notice shall be required) upon reasonable notice for the purpose of
(a) inspecting the same, and (b) if SFC so elects, making any necessary
repairs to the Premises.
SECTION 15.02. Nothing in this Article 15 or elsewhere in this Agreement
shall imply any duty or obligation upon the part of SFC to do any work on the
Premises and performance thereof by SFC shall not constitute assumption of
such a duty or obligation.
SECTION 15.03. Provided that it does not materially interfere with CFL's
operation of the Faire or the Forest of Fear, SFC may enter the Leased
Premises in non-emergency situations to operate or to effect repairs to or to
maintain water or wastewater utilities infrastructure on the Premises, or to
gain access to or egress from SFC's adjacent lands or
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improvements (including, but not limited to, access and egress in connection
with SFC's timber harvesting operations.)
ARTICLE 16
PERMITTED USE; NO UNLAWFUL OCCUPANCY
SECTION 16.01. Subject to the provisions of law and this Agreement, CFL
shall use the Leased Premises only for the purpose of conducting the Faire
and the Forest of Fear, and the Licensed Premises only for the incidental
purposes enumerated in Article 2.02, and for no other purposes. Anything in
the foregoing sentence that may be construed to the contrary notwithstanding,
no living accommodations shall be permitted on or about the Premises, except
that camping for CFL personnel is permitted on the Leased Premises in the
rear, near the Portomod Building, subject to all applicable laws, rules and
regulations that govern such use.
SECTION 16.02. CFL shall not use or occupy, and shall use commercially
reasonable efforts to prohibit the use or occupancy of any part of the Leased
Premises, and of the Licensed Premises when CFL is in occupancy thereof,
other than as permitted in Section 16.01, or in such manner as to constitute
a nuisance of any kind (public or private). CFL shall immediately take all
necessary steps, legal and equitable, to abate any nuisance at the Premises
resulting from CFL's use or occupancy thereof.
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ARTICLE 17
EVENTS OF DEFAULT, CONDITIONAL LIMITATIONS, REMEDIES, ETC.
SECTION 17.01. Each of the following events shall be an "Event of Default"
hereunder:
(a) if CFL shall fail to pay the Rent, Additional Rent or any other
payment required to be paid by CFL when the same shall become due and payable;
(b) if CFL shall fail to acquire and maintain in effect insurance
coverage in the types and amounts required by this Lease;
(c) if CFL shall abandon the Leased Premises or cease operating the
Faire;
(d) if CFL fails to maintain the Premises in a neat and clean condition
and in good repair; or
(e) failure by CFL to timely and fully perform any other obligation
under this Agreement on CFL's part to be performed.
SECTION 17.02. If an Event of Default shall occur, SFC may elect to (a)
perform the obligations of CFL in accordance with the provisions of Article 29,
or (b) proceed by appropriate judicial proceedings, either at law or in
equity, to enforce performance and observance by CFL of the applicable
provisions of this Agreement, or to recover damages for breach thereof, or
both.
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SECTION 17.03. If an Event of Default shall occur, SFC may at any time
thereafter give written notice to CFL stating that this Agreement and the
Term shall expire and terminate on the date specified in such notice, which
date shall be not less than ten (10) days after the giving of such notice (or
three (3) days after the giving of such notice if the Event of Default is the
failure to pay Rent), if on or before such date CFL shall have failed to cure
the default which was the basis for the Event of Default. If the Default
shall remain uncured as of the date specified in the notice, or if CFL shall
not be diligently pursuing the cure of an Event of Default that is inherently
incapable of being cured within the ten (l0) day cure period, then this
Agreement shall terminate without further notice, and SFC may proceed by
summary proceeding or other action at law or in equity to recover possession
of the Leased Premises.
SECTION 17.04. If this Agreement shall be terminated as provided in
Section 17.03 hereof CFL shall pay to SFC (a) all Rent and Additional Rent
payable under this Agreement to the date of such termination, and (b) on
demand, all costs and expenses, including, without limitation, reasonable
attorneys' fees and disbursements, incurred by SFC in any action or
proceeding to recover possession of the Leased Premises.
SECTION 17.05. Each right and remedy of SFC provided for in this
Agreement shall be cumulative and in addition to every other right or remedy
provided for this Agreement or now or hereafter existing at law or in equity
or by statute or otherwise. The exercise or
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beginning of the exercise by SFC of any one or more of the rights or
remedies provided for in this Article 17 or elsewhere in this Agreement, or
now or hereafter existing at law or in equity or by statute or otherwise
shall not preclude the simultaneous or later exercise by SFC of any or all
other rights or remedies provided for in this Article 17, this Agreement, or
now or hereafter existing at law or in equity or by statute or otherwise.
ARTICLE 18
NOTICES
SECTION 18.01. Whenever it is provided herein that notice, demand,
consent, approval, or other communication shall or may be given to or served
upon either of the parties, or whenever either of the parties shall desire to
give or serve upon the other any notice, demand, request, consent, approval,
or other communication with respect hereto, or to the Premises, each such
notice, demand, request, consent, approval, or other communication shall be
in writing and, any law or statute to the contrary notwithstanding, shall be
effective for any purpose if given or served as follows:
(a) If by CFL, by personal delivery to SFC; by recognized overnight
delivery service; by fax, followed by mailing as hereinafter set forth; or by
mailing the same to SFC by certified mail, postage prepaid, return receipt
requested, addressed to SFC at the
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address shown on the first page hereof, with a copy thereof to such other
address(es) and such other Persons as SFC may from time to time designate by
notice given to CFL.
(b) If by SFC, by personal delivery to CFL at the Premises; or by
recognized overnight delivery service; by fax, followed by mailing as
hereinafter set forth; or by mailing the same to CFL by certified mail,
postage prepaid, return receipt requested, addressed to CFL at the
Premises or at the address shown on the first page hereof, or to such other
address(es) and Persons as CFL may from time to time designate by notice
given to SFC.
SECTION 18.02. Every notice, demand, request, consent, approval, or
other communication hereunder shall be deemed to have been given or served at
the earliest of (a) the time that the same is personally delivered to or
actually received by the other party; (b) delivery by the recognized
overnight delivery service; or (c) three (3) days after being deposited in
the United States mails, postage prepaid, in the manner aforesaid.
ARTICLE 19
ESTOPPEL CERTIFICATES
CFL agrees that, at any time and from time to time upon not less than
ten (1O) days' prior notice by SFC, CFL shall execute, acknowledge and
deliver to SFC or any other Person specified by SFC, a statement in writing
certifying that this Agreement is
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unmodified and in full force and effect (or if there have been modifications,
that the same, as modified, is in full force and effect, stating the
modifications) and the date to which each item payable by CFL hereunder has
been paid, and stating whether or not to the best knowledge of the signer of
such certificate SFC is in default in performance of any covenant, agreement
or condition contained in this Agreement, and, if so, specifying in detail
each such default of which CFL may have knowledge.
ARTICLE 20
SURRENDER AT END OF TERM
On the Expiration Date CFL shall surrender and deliver up to SFC the
Leased Premises in good order, condition and repair, reasonable wear and tear
excepted, free and clear of all CFL improvements to the Leased Premises
(other than alterations to or fixtures installed in SFC-owned improvements,
which shall be the property of SFC) and of all liens and encumbrances other
than those, if any, existing as of the date hereof. Without limiting the
generality of the foregoing, CFL will remove all CFL improvements from the
Leased Premises, and will deliver the Leased Premises to SFC restored,
regraded and reseeded. Unless otherwise expressly agreed to the contrary by
SFC in writing, all approved repairs, improvements, fixtures or additions
made by CFL to the Licensed Premises or to any other SFC-owned property or
improvements shall be the
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property of SFC, and shall remain at the Premises after the Expiration Date,
free and clear of all liens and encumbrances.
ARTICLE 21
ENTIRE AGREEMENT, NO ORAL MODIFICATIONS
This Agreement contains all the promises, agreements, conditions,
inducements and understandings between SFC and CFL relative to the Premises
and to their respective rights and obligations, and there are no promises,
agreements, conditions, understandings, inducements, warranties or
representations, oral or written, expressed or implied, between them other
than as herein set forth. This Agreement may not be orally modified, waived,
changed, canceled or amended. All such alterations of this Agreement require
a writing signed by both SFC and CFL.
ARTICLE 22
QUIET ENJOYMENT
Subject to the rights of any fee mortgagee and the rights of access
herein reserved, SFC covenants that if and as long as CFL shall faithfully
perform the agreements, terms, covenants and conditions hereof, CFL shall and
may peaceably and quietly have, hold and enjoy the Leased Premises for the
term hereby granted without molestation or disturbance by or from SFC and
free of any encumbrance created or suffered by SFC.
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ARTICLE 23
INVALIDITY OF CERTAIN PROVISIONS
If any term or provision of this Agreement or the application thereof to
any Person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such
term or provision to any Person or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
ARTICLE 24
NO RECORDING OF MEMORANDUM OF AGREEMENT
This Agreement or a Memorandum thereof shall not be recorded by either
party to the Agreement.
ARTICLE 25
LIMITATION OF LIABILITY
SECTION 25.01.
(a) SFC's liability hereunder (including, for purposes of this Section,
any parent or subsidiary of SFC) for damages or otherwise, if any, shall in
all events be limited to
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SFC's interest in the Leased Premises, this Agreement, the Rent, proceeds of
any insurance policies covering or relating to the Leased Premises, and any
awards payable to SFC in connection with a condemnation of the Leased
Premises. Neither SFC nor any of the directors, officers, employees,
shareholders, agents or servants of SFC shall have any liability (personal or
otherwise) hereunder except as set forth herein. No other property or asset
of SFC, or any property or asset of the directors, officers, employees,
shareholders, agents or servants of SFC, is subject to levy, execution or
other enforcement procedure for the satisfaction of CFL's remedies hereunder.
The provisions of this Section 25.01(a) shall survive the expiration of the
Term or other termination of this Agreement.
SECTION 25.02. When a party exercises any of the rights or renders or
performs any of its obligation hereunder, it hereby acknowledges that it
shall do so at its sole cost and expense, except to the extent this Agreement
expressly provides to the contrary.
ARTICLE 26
MISCELLANEOUS
SECTION 26.01. The captions of this Agreement are for convenience of
reference only and in no way define, limit or describe the scope or intent of
this Agreement or in any way affect this Agreement.
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SECTION 26.02. The Table of Contents is for the purpose of convenience
of reference only and is not to be deemed or construed in any way as part of
this Agreement or as supplemental thereto or amendatory thereof.
SECTION 26.03. The use herein of the neuter pronoun in any reference to
SFC or CFL shall be deemed to include any individual landlord or licensor and
tenant or licensee, and the use herein of the words "successors and assigns"
or "successors or assigns" of SFC or CFL shall be deemed to include the
heirs, legal representatives and assigns of any individual landlord or
licensor or tenant or licensee.
SECTION 26.04. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 26.05. The agreements, terms, covenants and conditions herein
shall be binding upon and shall inure to the benefit of, SFC and CFL and
their respective successors and assigns.
SECTION 26.06. All references in this Agreement to "Articles" or
"Sections" shall refer to the designated Article(s) or Section(s), as the
case may be, of this Agreement.
SECTION 26.07. The unconditional guarantee of CFL's obligations under
this Agreement by Renaissance Entertainment Corporation is a material
inducement for SFC to enter into this Agreement. This Agreement shall not be
binding upon SFC (i) unless and until it shall be executed by the parties
hereto and unconditionally delivered by SFC
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to CFL, and (ii) the guarantee hereof is fully and properly executed and
delivered to SFC by the guarantor, Renaissance Entertainment Corporation. A
copy of the duly adopted resolution of the board of directors of Renaissance
Entertainment Corporation accepting and agreeing to the terms and authorizing
the execution thereof must be affixed to the executed guarantee.
SECTION 26.08. This Agreement may not be orally modified, waived,
changed, canceled or amended.
ARTICLE 27
HAZARDOUS MATERIALS
SECTION 27.01.
(a) CFL shall be responsible for Hazardous Materials (as defined in
subparagraph (d) below) that come to be located on the Leased Premises during
the Term or on the Licensed Premises during CFL's occupancy thereof, as a
result of CFL's acts or omissions.
(b) CFL agrees that CFL shall not cause, suffer or permit any Hazardous
Material (as defined in subparagraph (d) below) to come to be located on and
then be stored on or about, be used in or about, or be discharged from the
Premises during the Term, except as legally and properly used or stored in
the normal course of CFL's
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permitted uses under this Agreement. CFL shall comply with the laws, rules,
regulations and orders of any federal, state or local authority or other
governmental authority in the storage and use of, and in promptly removing
any such Hazardous Materials and otherwise promptly complying with the laws,
rules, regulations and orders (collectively called "Government Requirements")
of such authority, all at the sole cost and expense of CFL. Without limiting
the foregoing, CFL agrees to remove and clean-up the Premises of all such
Hazardous Materials of the nature described in Section 27.01 above in
compliance with the Governmental Requirements, upon the earlier to occur of:
(i) the Expiration Date or earlier termination of this Agreement, or (ii)
CFL's ceasing to conduct permitted activities at the Premises.
(c) In the event of any storage, use or disposal of Hazardous Materials
for which CFL is responsible under paragraphs (a) and (b) of Section 27.01,
CFL shall defend, indemnify and hold SFC harmless from and against any and
all claims, loss, damage and expense, including, but not limited to,
reasonable attorney's fees and costs, that SFC may incur as a result of or
arising out of: (i) any such alleged storage, use or discharge of such
Hazardous Materials from the Premises; (ii) the removal and disposal of any
such Hazardous Material on, about or from the Premises; (iii) compliance with
any Governmental Requirements relating to the presence or removal of such
Hazardous Materials from the Premises; or (iv) any combination of the
foregoing.
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(d) As used herein, "Hazardous Materials" means any hazardous or toxic
material, substance or waste which is defined by those or similar terms or is
regulated as such under any Governmental Requirements, including, but not
limited to, any material, substance or waste which is (a) defined as a
hazardous substance under Section 311 of the Federal Water Pollution
Control Act (33 U.S.C. Section 1317) as the same has been and may be amended;
(b) defined as a hazardous waste under Section 1004 of the Federal Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et. seq.) as the same
has been and may be amended; or (c) defined as a hazardous substance under
Section 101 of the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9601 et. seq.) as the same has been and may
be amended.
(e) Any costs, penalties, fines, and/or expenses paid or incurred by SFC
arising out of CFL's failure to comply with the foregoing provisions shall
constitute, at SFC's option, Additional Rent under the Agreement, and shall
be paid to SFC by CFL on demand. The provisions hereof shall survive the
expiration or early termination of the Agreement and are intended to
supplement SFC's rights and remedies against CFL at law with respect to
Hazardous Materials.
(f) SFC shall be entitled to injunctive relief against CFL with respect
to any threatened storage, use or discharge of any Hazardous Material from,
on, about or in the
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Premises in violation of the provisions of subparagraphs (a) and (b) of
Section 27.01 herein.
(g) The provisions of Article 27 of this Agreement shall survive the
expiration of the Term or other termination of this Agreement.
(h) If either party to this Agreement becomes aware of any Hazardous
Material on the Premises, that party will immediately notify the other party
of possibility that Hazardous Materials are present.
(i) To the best of SFC's knowledge, and without SFC conducting an
environmental audit of the Premises, there are no Hazardous Materials
presently on the Premises in violation of any Governmental Requirements. CFL
represents and warrants that it has no knowledge of Hazardous Materials on
the Premises in violation of any Governmental Regulations, and that CFL has
not caused, or knowingly suffered or permitted any Hazardous Materials to
come to be located at the Premises in violation of any Governmental
Regulations during CFL's possessions of the Premises during the eighteen
years preceding this Agreement. At the expiration of the Term or other
termination of this Agreement, at CFL's option and sole expense, CFL may
cause an environmental audit of the Premises to be made by a qualified New
York State licensed Professional Engineer, satisfactory to SFC, to determine
the presence of any Hazardous Materials on the Premises. If CFL elects to
have the environmental audit performed in
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accordance with this provision, and if the environmental audit reveals there
are no Hazardous Materials on the Premises, or that any Hazardous Materials
found can conclusively be demonstrated to be attributable to an incident or
source other than one for which CFL would bear responsibility hereunder, then
upon SFC's written acceptance of and concurrence with such report CFL shall
have no continuing obligation under this Article following the expiration or
other termination of this Lease. If the environmental audit reveals the
presence of Hazardous Materials on the Premises for which CFL may be
responsible hereunder, CFL shall have the obligation to remediate the
Premises by the removal of the Hazardous Materials immediately following the
completion of the environmental audit. In the event CFL elects to cause such
environmental audit to be made, CFL will instruct the Professional Engineer
making the audit to provide a copy of the same to SFC at the same time that a
copy is provided to CFL.
ARTICLE 28
WAIVER OF TRIAL BY JURY
AND COUNTERCLAIMS IN SUMMARY PROCEEDINGS;
JURISDICTION AND VENUE; SERVICE OF PROCESS
SECTION 28.01. It is mutually agreed by and between SFC and CFL that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on
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ARTICLE 29
FEES AND EXPENSES
If CFL shall default in the observance or performance of any term or
covenant on CFL's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this Agreement, then, unless
otherwise provided elsewhere in this Agreement, SFC may immediately or at any
time thereafter and upon notice to CFL, perform the obligation of CFL
thereunder. If SFC, in connection with the foregoing or in connection with
any default by CFL in the covenant to pay Rent hereunder, makes any
expenditure or incurs any obligations for the payment of money, including but
not limited to reasonable attorney's fees, in instituting, prosecuting or
defending any action or proceeding, then CFL will reimburse SFC for all such
sums so paid or obligations incurred, with interest and costs. The foregoing
expenses incurred by reason of CFL's default shall be Additional Rent
hereunder and shall be paid by CFL to SFC on demand. If the Term shall have
expired at the time of making of such expenditures of incurring of such
obligations, such sums shall be recoverable by SFC as damages. If SFC
commences summary proceedings or other litigation to enforce this Agreement,
and such proceedings or actions are resolved on the merits in favor of CFL,
then SFC shall reimburse CFL for CFL's reasonable attorneys fees and cost
incurred in CFL's defense.
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ARTICLE 30
WAIVER OF REDEMPTION
CFL hereby expressly waives any and all rights of redemption granted by
or under any present or future laws (including, but not limited to, Section
761 of the Real Property Actions and Proceedings Law) in the event of CFL
being evicted or dispossessed for any cause, or in the event of SFC obtaining
possession of the Leased Premises by reason of the violation by CFL of any of
the covenants and conditions of this Agreement or otherwise.
ARTICLE 31
SUBORDINATION
This Agreement shall be subordinate to any mortgage or mortgages
hereinafter placed upon the Premises. SFC will attempt in good faith, and
will use all commercially reasonable efforts, to procure non-disturbance
ageement(s) in favor of CFL from the mortgagor or mortgagors.
ARTICLE 32
INSURANCE
SECTION 33.01. Throughout the Term CFL shall continually provide and
maintain in full force and effect general liability insurance and motor
vehicle insurance protecting
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against any and all liability or property damage whatever resulting directly
or proximately from CFL's operations or occupancy of the Premises, including,
but not limited to, liability arising out of or in connection with
products/completed operations, premises operations, contractual liability,
personal and advertising injury liability and all operations of CFL. Such
general liability insurance shall name SFC as an additional insured and have
a combined single limit of not less than $5,000,000 for personal injury and
property damage and no less than $5,000,000 for liquor law legal liability.
Such motor vehicle insurance shall name SFC as an additional insured and
shall have a combined single limit of not less than $1,000,000 for personal
injury and property damage. In addition, CFL will obtain and maintain in
effect throughout the Term business interruption insurance, in a form and
amount sufficient to ensure that CFL will be able to pay the Rent hereunder
if the operation of the Faire or the Forest of Fear is interrupted. Evidence
of all of the required insurance coverage, together with proof of the payment
of premiums, shall be provided to SFC no less than thirty (30) days prior to
the Commencement Date and the term of each such policy shall be no less than
one year from the Commencement Date. Each such policy be in a form and issued
by a company authorized to underwrite insurance in the State of New York and
approved by SFC, and shall further provide that it may not be canceled or
materially changed except upon thirty (30) days prior written notice to SFC.
Prior to the Commencement Date, CFL will also provide to SFC evidence
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of workers compensation insurance coverage for CFL's personnel, for not less
than one year from the Commencement Date, and CFL agrees to waive subrogation
in favor of SFC if SFC so requests. CFL shall make all policies of insurance
which CFL maintains pursuant to the provisions of this Article available to
SFC for SFC's inspection in the event SFC makes a request for such an
inspection.
IN WITNESS WHEREOF, SFC and CFL have executed this Agreement as of the
day and year first above written.
STERLING FOREST CORPORATION
By:
-----------------------------------------
Louis Heimbach, Chairman, President & CEO
CREATIVE FAIRES, LTD
By: /s/ DONALD C. GAITI
-----------------------------------------
Donald C. Gaiti, President
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GUARANTY
1. RENAISSANCE ENTERTAINMENT CORPORATION ("REC") is a corporation
organized under the laws of the State of Colorado, with its principal
offices at 4440 Arapahoe #26A, Bolder, Colorado. REC recognizes
that STERLING FOREST CORPORATION would not enter into the foregoing
Agreement with CFL dated June __, 1996 with CFL unless REC unconditionally
guarantees CFL's payment and performance of its obligations under the
Agreement. REC has requested SFC to enter into the Agreement with CFL.
REC has a substantial interest in making sure that SFC enters into the
Agreement with CFL, and recognizes that the Agreement shall not become
effective unless and until REC executes and delivers this Guaranty to SFC.
The resolution of the board of directors of REC accepting and agreeing to
the terms of this Guaranty and authorizing the execution of this Guaranty
is attached hereto as Exhibit "A".
2. The following is REC's Guaranty:
REC guarantees the full performance of the Agreement by CFL, including but
not limited to payment in full of all amounts to be paid by CFL under the
Agreement. This Guaranty is absolute and without any condition.
In addition, REC agrees to these other terms:
3. This Guaranty will not be affected by any change in the Agreement,
whatsoever. The Guaranty will bind REC even if REC is not a party to these
changes.
4. REC does not have to be informed about any default by CFL. REC waives
notice of nonpayment or other default.
5. If CFL defaults, SFC may require REC to perform CFL's obligations without
first demanding that CFL perform.
6. This Guaranty shall be governed by and construed in accordance with the
laws of the State of New York, without regard to New York's conflicts of
laws provisions. REC hereby waives its right to trial by jury in any claim
related to the Agreement or this Guaranty, consents and submits to the IN
PERSONAM jurisdiction of any United States court sitting in New York City
or White Plains, New York, or any court of the State of New York sitting in
Orange County, New York, having subject matter jurisdiction over the causes
of action asserted arising out of or in connection with this Guaranty or
the Agreement. REC irrevocably and waives all
<PAGE>
present and future objections to Orange County, New York, New York City or
White Plains, New York as the exclusive venue of any action or proceeding
arising out of or in connection with this Agreement. REC agrees to service
of process by certified mail, return receipt requested, in any proceeding
or action arising out of or in connection with this Agreement.
7. This Guaranty can be changed only by written agreement signed by all
parties to the Agreement and this Guaranty.
Dated: June 12, 1996 GUARANTOR:
RENAISSANCE ENTERTAINMENT CORP.
By: /s/ Miles Silverman
------------------------------
State of Colorado)
) ss.:
County of Boulder)
On the 12th day of June in the year 1996 before me personally came Miles
Silverman to me known, who, being by me duly sworn, did depose and say that
he resides in Boulder, Colorado; that he is the President of RENAISSANCE
ENTERTAINMENT CORPORATION, the corporation described in and which executed
the above instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the board of directors of said corporation, and that
he signed his name thereto by like authority.
/s/ Deborah K. Johnson
------------------------
Notary Public
<PAGE>
EXHIBIT "A"
"CORPORATE RESOLUTION
OF
RENAISSANCE ENTERTAINMENT CORPORATION"
<PAGE>
SCHEDULE "A"
[MAP]
<PAGE>
RESOLUTION
WHEREAS, Prospect Mountain Corporation, University Forest Corporation and
Fletcher Lake Corporation have made application to the Zoning Board of
Appeals of the Town of Tuxedo, New York for a special permit for the use of
their premises as a social/recreation/visitor center and outdoor recreational
facility pursuant to Section 5.2 of the Zoning Law of the Town of Tuxedo, and
WHEREAS, a portion of the applicants' premises consisting of about 471
acres of land is already used for the aforesaid purposes and is known as
Sterling Forest Gardens and Ski Center, and
WHEREAS, the lands already in use for such purposes are in R-1 and R-2
Zones of the Town in accordance with the aforementioned Town Zoning Law, and
WHEREAS, the applicants have requested a special permit to add to the
aforementioned land an additional parcel of land consisting of about 192
acres all of which are located in an R-O Zone under the Town Zoning Law to be
devoted exclusively to social/recreation/visitor center and outdoor
recreational facility uses as permitted under the Town Zoning Law, and
WHEREAS, the aforesaid two parcels of land for which the application has
been made consists in total of approximately 665.7 acres of land for which
applicant seeks a special permit as aforesaid, and
WHEREAS, the Planning Board of the Town of Tuxedo has given site plan
approval to the lands of the applicants already in use as a
social/recreation/visitor center and outdoor recreational facility, and
WHEREAS, it appears to the satisfaction of the Zoning Board
SCHEDULE "B"
<PAGE>
of Appeals that the structures, facilities, equipment and materials presently
in use by the applicants for such facilities: are readily accessible to fire
and police protection; are of such location, size and character so as to be
in harmony with the appropriate and orderly development of the districts in
which they are situated and not detrimental to the orderly development of
adjacent properties; are of such location and size and so laid out on the
site so that pedestrian and vehicular and the assembly of persons in
connection therewith is not hazardous or inconvenient to or incongruous with
the residential district in which the use is located and the location and
height of the buildings already in use together with the location, nature and
height of the walls and the fences and landscaping already in existence do not
hinder or discourage the appropriate development and use of adjacent lands and
buildings, and
WHEREAS, the Zoning Board of Appeals has held a public hearing on such
application on October 20, 1976 after giving due and proper notice thereof,
and
WHEREAS, the Zoning Board of Appeals has given due consideration to all
statements made at said public hearing and all communications received in
connection therewith and has given due deliberation to said application.
NOW, THEREFORE; BE IT RESOLVED as follows:
1. Pursuant to Section 3.2 and 8.2.3 of the Zoning Law of the Town of
Tuxedo, a special permit is hereby granted to the applicant for the use of
their premises presently used as a social/recreation/ visitor center and
outdoor recreational facility known as Sterling
-2-
<PAGE>
Forest Gardens and Ski Center and consisting of an occupying at the present
time approximately 471 acres of land.
2. The applicant is hereby granted a special permit pursuant to Section
3.2 and 8.2.5 of the Zoning Law to use the additional acreage consisting of
about 192 acres as part of the social/recreation/visitor center and outdoor
recreational facility presently in use by the applicants and known as
Sterling Forest Gardens and Ski Center.
3. This Resolution and the special permit hereby granted are subject to
the following terms and conditions:
a. The special permit herein granted is for a parcel of land consisting
of approximately 663 acres as bounded and described by the applicants in the
exhibits and documents attached to the application.
b. All future development on the lands covered by this permit shall be in
strict accordance with the Zoning Law of the Town of Tuxedo as amended and
except as the terms may have been duly varied.
c. The lands covered by the permit located in an R-O Zone under the Town
Zoning Law shall be used for parking facilities only.
d. All future development of the lands covered by this permit shall be
subject to site plan review by the Planning Board of the Town of Tuxedo and
no building permit shall be issued for any future facility or structure
requiring a building permit under the laws of the Town of Tuxedo unless and
until site plan approval has been granted by the said Planning Board.
e. All future development of the lands covered by this permit
-3-
<PAGE>
shall be in compliance with the provisions of Section 8.2.3.1 of the Town
Zoning Law and applicant will demonstrate in connection with such future
development that such development does not and will not have an unreasonably
adverse effect upon the ecology and environment of the site, the adjoining
properties and the Town of Tuxedo.
f. In the development of additional parking areas on the lands covered
by this permit applicant shall demonstrate that the existing public roads
required for access to such parking facilities and the lands of the applicant
are adequate to safely accommodate the estimated traffic which it is
anticipated will result from the expansion of such parking facilities and the
future development of applicants' lands.
g. No building permit shall be issued to the applicant for the
development of the land covered by this permit except in accordance with the
provisions of this permit and resolution.
The foregoing constitutes a true and complete copy of a resolution
duly made and adopted at a regular meeting of the Zoning Board of
Appeals of the Town of Tuxedo on October 27, 1976. The said resolution
was made by Mr. and seconded by Mr. and was adopted
by the following votes: Ayes 5 Nos
--- ---
/s/ John Hofmann
---------------------------
John Hofmann
Chairman
Zoning Board of Appeals
-4-
<PAGE>
STERLING FOREST CORPORATION
Schedule of Electric Meters
Billed to Creative Faires, Ltd.
Meter Location Base Month
and Number June 28, 1978
---------------- -------------
Upper Parking Lot 4.77
1530-5736-2960.1
Garden Sewer 251.26
1530-5736-3020.1
Garden Club 9.02
1530-5736-3440.1
Camel Barn 0.00
1530-5736-3450.1
Irrigation 221.53
1530-5736-3560.1
Peacock Patio 172.31
1530-5736-3620.4
Rt. 17A Traffic Light 169.82
1530-5736-3660.1
Warming Hut 94.45
1530-5736-3680.3 -------
$927.93
SCHEDULE"C"