LEASE AGREEMENT
[Walnut Creek Amphitheater]
STATE OF NORTH CAROLINA )
)
COUNTY OF WAKE )
This Lease Agreement ("Agreement") is entered into effective as of this
1st day of December, 1990, by and between the CITY OF RALEIGH, NORTH CAROLINA
("CITY"), a municipal corporation duly organized and existing under and by
virtue of the constitution and laws or the State of North Carolina, and SONY
MUSIC/PACE PARTNERSHIP ("TENANT"), a New York general partnership whose sole
general partners are YM Corp., a Delaware corporation, and PACE Concerts, Inc.,
a Texas corporation.
WITNESSETH:
1.0 DEFINITIONS AND OTHER GENERAL PROVISIONS
1.1 Definitions
Unless the context otherwise requires, the capitalized terms used herein
shall, for all purposes of this Agreement, have the following specified
meanings:
(a) "Amphitheater" shall mean the outdoor entertainment facility to
be known as "Walnut Creek Amphitheater" which is to be constructed on the
Amphitheater Site by WAAC pursuant to, and as contemplated by, the
provisions of the Lease Purchase Agreement and the Development Agreement.
The term "Amphitheater" shall include within its definition the
Amphitheater Site and all buildings, fixtures, parking lots and other
improvements which are constructed or placed on the Amphitheater Site as a
part of or related to such outdoor entertainment facility.
(b) "Amphitheater Season" shall mean a continuous period of time
during any calendar year running from May 1 to October 31 of such calendar
year.
(c) "Amphitheater Site" shall mean that certain tract of land out of
the Property being more fully described by metes and bounds in Exhibit
"A-2" attached hereto.
(d) "Deed of Trust" shall mean that certain Leasehold Deed of Trust
to be executed by WAAC as contemplated by the provisions of the Trust
Agreement, pursuant to which WAAC's leasehold interest in the Amphitheater
created pursuant to the Ground Lease shall be encumbered by a lien in
order to secure its obligations under the Trust Agreement and the
certificates of participation to be issued thereunder.
(e) "Development Agreement" shall mean that certain Development
Management Agreement entered into of even date herewith by and among
TENANT, CITY and WAAC relating to, among other things, (i) the development
consulting services to be provided by TENANT in connection with the
construction and design of the Amphitheater and (ii) the contribution of
$3,500,000.00 by TENANT towards payment of construction and design costs
associated with the construction of the Amphitheater.
(f) "Gross Revenues" shall have the meaning assigned to it pursuant
to the provisions of Section 3.3 of this Agreement.
(g) "Ground Lease" shall mean that certain Ground Lease Agreement
currently contemplated to be entered into by and between CITY and WAAC
pursuant to which, among other things, CITY shall lease to WAAC the
Amphitheater Site in its currently unimproved state.
(h) "Lease Purchase Agreement" shall mean that certain
Lease/Purchase Agreement currently contemplated to be entered into by and
between WAAC and CITY pursuant to which, among other things, WAAC shall
agree to construct the Amphitheater on the Amphitheater Site and sublease
the completed Amphitheater to CITY.
(i) "Parking Facilities" shall collectively mean:
(i) that portion of the Amphitheater Site on which CITY shall
construct approximately 2,500 parking spaces and being appropriately
designated on the plat attached hereto as Exhibit "B" ("South
Parking Lot");
(ii) that portion of the Property on which CITY shall
construct approximately 1,000 parking spaces and being appropriately
designated on the plat attached hereto as Exhibit "B" ("Softball
Parking Lot");
(iii) the property located near the Property which is
currently used as a parking lot by the North Carolina Department of
Transportation, containing approximately _____ parking spaces and
being appropriately designated on the plat attached hereto as
Exhibit "B" ("NCDOT Parking Lot"); and
(iv) that portion of the Amphitheater Site on which CITY shall
construct approximately 2,500 parking spaces and being appropriately
designated on the plat attached hereto as Exhibit "B" ("Additional
Parking Facilities").
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(j) "Permitted Encumbrances" shall mean, (i) the liens and security
interests created by the Deed of Trust, (ii) liens for general ad valorem
taxes and assessments, if any, not then delinquent, (iii) the estates,
interests and rights created pursuant to the Ground Lease and the Lease
Purchase Agreement, (iv) any right or claim of any mechanics, laborers,
materialmen, supplers or vendors not filed or perfected in the manner
prescribed by law and (v) the easements, rights-of-way, mineral rights,
drilling rights and other rights, reservations, covenants, conditions or
restrictions which are specifically listed or referred to in the policy of
title insurance provided to TENANT pursuant to the provisions of Section
16.1(c)(iv) hereof.
(k) "Previous Amphitheaters" shall collectively mean all other
outdoor entertainment facilities which are currently owned (either
directly or indirectly) or managed by TENANT anywhere in the United States
including, without limitation, Xxxxxxx Xxxxx Xxxxxxxx Pavilion (The
Woodlands, Texas), StarPlex Amphitheater (Dallas, Texas), Lakewood
Amphitheater (Atlanta, Georgia), Mud Island Amphitheater (Memphis,
Tennessee), Starwood Amphitheater (Nashville, Tennessee) and Star Lake
Amphitheater (Pittsburgh, Pennsylvania).
(l) "Property" shall mean that certain tract of land located in Wake
County, North Carolina and being more particularly described by metes and
bounds in Exhibit "A-1" attached hereto and appropriately depicted on the
plat attached hereto as Exhibit "B".
(m) "WAAC" shall mean Walnut Creek Amphitheater Financing Assistance
Corporation, a nonprofit corporation duly organized and existing under and
by virtue of Chapter 55A of the general statutes of North Carolina.
(n) "Trust Agreement" shall mean that certain Trust Agreement to be
entered into by and between Trustee and WAAC relating to the issuance of
certain Certificates of Participation to investors for the purpose of
raising money for funding the construction and design costs of the
Amphitheater.
(o) "Trustee" shall mean First Union National Bank of North
Carolina, Charlotte, North Carolina.
1.2 Lease of the Amphitheater
Subject to the terms and conditions contained in this Agreement, and in
consideration of the covenants and payment and performance set forth in this
Agreement, CITY leases and demises unto TENANT, and TENANT rents and accepts
from CITY, the Amphitheater and the Parking Facilities together with use of all
rights, easements, privileges, and appurtenances thereto.
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Except as expressly provided to the contrary herein, TENANT shall be entitled to
receive and retain, as its own property, all of the revenues, royalties and
income which may be generated from its possession, use, control and operation of
the Amphitheater and the Parking Facilities pursuant to the terms of this
Agreement.
1.3 Compliance with Law
Except as otherwise provided herein, TENANT shall, during the term of this
Agreement at its sole cost and expense, promptly comply with all material laws,
ordinances, orders, rules, regulations and requirements of all federal, state
and municipal governmental agencies which may be applicable to the use or
occupancy of the Amphitheater. TENANT shall likewise observe and comply with the
material requirements of all policies of public liability, fire, and other
insurance at any time in force with respect to the Amphitheater.
Notwithstanding the foregoing, should CITY pass, enact or amend any
ordinances, laws, orders, rules, regulations or requirements after the date
hereof which relate specifically and only to the Amphitheater and which would
have the effect of requiring TENANT to expend sums in connection with the
operation or use of the Amphitheater in order to comply therewith, then such
amounts shall be paid by CITY, as owner of the Amphitheater. TENANT shall have
the express right to offset any amounts due from CITY to TENANT pursuant to the
immediately preceding sentence against payments due from TENANT to CITY pursuant
to the terms of this Agreement.
CITY agrees and acknowledges that the Amphitheater shall be used as a
commercial outdoor concert facility in a manner consistent with the manner in
which the Previous Amphitheaters have been and are being operated. Without
derogating from the generality of the immediately preceding sentence, CITY
agrees and acknowledges that the Amphitheater may be used for performing with or
without amplified sound, popular and contemporary music, rock and roll,
pyrotechnic shows, and other similar sound-intensive and light-intensive
activities; provided that TENANT acknowledges that it may be required to obtain
permits from Wake County or other governmental entities as a condition precedent
to conducting any pyrotechnic shows.
2.0 TERM
2.1 Initial Term
The initial term of this Agreement shall (i) commence upon substantial
completion of construction of the Amphitheater and the Parking Facilities and
the issuance of a certificate of occupancy for the Amphitheater and (ii) end on
the nineteenth (19th) anniversary of the last day of the first Amphitheater
Season of the initial term of this Agreement. If construction of the
Amphitheater and the Parking Facilities is substantially completed and a
certificate of occupancy is issued for the Amphitheater prior to July 15 of a
particular calendar year, then the Amphitheater Season during such calendar year
shall be deemed to be, for all purposes of this Agreement,
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the "first" Amphitheater Season of the initial term of this Agreement. If
construction of the Amphitheater and the Parking Facilities is substantially
completed and a certificate of occupancy is issued for the Amphitheater after
July 15 of a particular calendar year, then the Amphitheater Season during the
next succeeding calendar year shall be deemed to be, for all purposes of this
Agreement, the "first" Amphitheater Season of the initial term of this
Agreement; provided, however, if construction of the Amphitheater and the
Parking Facilities is substantially completed and a certificate of occupancy is
issued for the Amphitheater between July 15 and October 31 of a particular
calendar year, then TENANT's right to use and operate the Amphitheater pursuant
to this Agreement shall commence upon substantial completion of construction and
issuance of the certificate of occupancy and the rental obligation described in
Section 3.2 hereof shall commence with such use and operation even though the
"first" Amphitheater Season of the initial term of this Agreement shall be the
Amphitheater Season occurring during the next calendar year.
2.2 Option to Renew
CITY hereby grants to TENANT the right and option to renew and extend this
Agreement for an additional term of twenty (20) Amphitheater Seasons commencing
on the expiration of the initial term. The renewal must be exercised by the
TENANT giving written notice to CITY of its intent to renew on or before sixty
(60) days after the end of the fifth (5th) Amphitheater Season of the initial
term of this Agreement. Simultaneously with the commencement of the renewal
term, TENANT shall pay to CITY The sum of One Million Five Hundred Thousand
Dollars ($1,500,000.00) as a renewal fee. TENANT may exercise the option
provided for in this Section 2.2 only if the original Agreement is in full force
and effect on the date the option is exercised.
3.0 RENTAL PAYMENTS
3.1 Tenant's Capital Investment
As partial consideration for CITY's agreement to enter into this Agreement
with TENANT, TENANT shall pay Four Million Five Hundred Thousand Dollars
($4,500,000.00) to CITY in the following installments:
(a) Pursuant to the terms and provisions of the Development
Agreement TENANT has agreed to pay Three Million Five Hundred Thousand
Dollars ($3,500,000.00) to be applied towards the construction, financing
and design costs associated with construction of the Amphitheater.
(b) TENANT shall be unconditionally and irrevocably obligated to pay
to CITY a rental payment of One Million Dollars ($1,000,000.00) on the
last day of the twentieth (20th) Amphitheater Season of the initial term
of this Agreement.
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3.2 Monthly Rentals
TENANT shall also pay rentals to CITY, in monthly installments as provided
for in Section 3.4 of this Agreement, in the amount of seven percent (7%) of
all Gross Revenues actually received by TENANT during the term of this
Agreement.
3.3 Gross Revenues
As used in this Agreement, the term "Gross Revenues" shall mean the total
amount of revenues actually received by Tenant from time to time and during any
particular period of time during the term of this Agreement, which revenues
arise out of or relate to TENANT's possession, control, use or operation of the
Amphitheater and the Parking Facilities, including, without limitation, (i) the
gross revenues actually received from the sale of tickets to performances,
events and shows held or presented by TENANT at the Amphitheater (net of all
state, county and local sales taxes which are payable in connection with the
sale of such tickets); (ii) the gross revenues actually received by TENANT from
TENANT's direct sales of food, beverages, artist-related merchandise and any
other product or services at the Amphitheater (net of all state, county and
local sales taxes which are payable in connection with the sale of such
merchandise); (iii) gross revenues actually received by TENANT on account of or
pursuant to any license, concession or other agreement executed by TENANT which
grants to another person the right to sell food, beverages, artist-related
merchandise and any other products or services at the Amphitheater; and (iv) all
other gross revenues actually received by TENANT from the operation of the
Amphitheater such as advertising revenues, sponsorship revenues, and revenues
from the granting of telecast, broadcast, video, or audio rights relating to any
performance or show at the Amphitheater; provided, however, notwithstanding the
foregoing, the term "Gross Revenues" as used in this Agreement shall be adjusted
and modified in accordance with the following terms and provisions:
(a) The value of complimentary or promotional tickets (including the
tickets provided to CITY pursuant to Section 5.11 hereof) shall not be
included within Gross Revenues unless TENANT receives in exchange for the
distribution of such complimentary or promotional tickets specific goods
or services other than advertising time or space.
(b) All payments or grants received by TENANT from any
concessionaire or sponsor which are either (i) ultimately repayable by
TENANT to such concessionaire or sponsor or (ii) are "capital" in nature
shall not be included within Gross Revenues.
(c) The first $2,000,000.00 of revenue received during each of the
first and second Amphitheater Seasons of the initial term of this
Agreement, which would otherwise be Gross Revenues, shall be excluded from
Gross Revenues.
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(d) The first $1,000,000.00 of revenue received by TENANT during the
third Amphitheater Season of the initial term of this Agreement, which
would otherwise be Gross Revenues, shall be excluded from Gross Revenues.
(e) Revenues received by TENANT from the sale of tickets to any
show, performance or event to be presented at the Amphitheater shall be
deemed to have been received as Gross Revenues by TENANT for purposes of
this Agreement during the calendar month in which such show, performance
or event is actually presented. All other items of revenue received by
TENANT which are included within Gross Revenues shall be deemed to have
been received within the calendar month of its collection.
(f) Gross Revenues shall be reduced by the amount of any "admission
taxes", "entertainment taxes" or similar types of taxes (collectively
"Special Entertainment Taxes") which may be payable by TENANT in
connection with its operation of the Amphitheater, if such Special
Entertainment Taxes are applicable only to outdoor entertainment
facilities similar to the Amphitheater. Gross Revenues shall not be
reduced by any Special Entertainment Taxes which may be payable by TENANT
in connection with its operation of the Amphitheater, if such taxes are
equally applicable to other types of entertainment venues such as football
stadiums and indoor entertainment facilities.
(g) Any revenues or reimbursements which may be received by TENANT
during CITY's (or its designee's) use of the Amphitheater pursuant to
Sections 5.8, 5.9 or 5.10 of this Agreement shall be specifically excluded
from Gross Revenues for purposes of this Agreement.
3.4 Payment Procedures for Rent
During the term of this Agreement, TENANT shall pay, as provided herein,
to CITY, in monthly payments, commencing with the first full calendar month
after the final completion of the Amphitheater and issuance of a certificate of
occupancy for the Amphitheater, seven percent (7%) of the Gross Revenues for the
immediately preceding calendar month. TENANT shall accompany each such monthly
payment with an itemized report setting forth the amount of Gross Revenues for
the prior month, which statements shall be certified to by an officer of TENANT
as to the accuracy thereof to the best of his knowledge, information and belief.
All payments shall be made no later than fifteen (15) days after the end of the
month for which the payment is due. The payment shall be paid without notice or
demand, and without any abatement, deduction, or set-off except as may be
expressly permitted pursuant to the terms hereof. All rental payments hereunder
shall be made to the City of Raleigh and delivered to:
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City of Raleigh
c/o Finance Director
X.X. Xxx 000
000 Xxxx Xxxxxxx Xx.
Xxxxxxx, X.X. 00000
All taxes, charges, costs, and expenses which TENANT is required to pay
hereunder, together with all interests and penalties that may accrue thereon in
the event of the TENANT's failure to pay such amounts, and all damages, costs,
and expenses which CITY may incur by reason of any default of TENANT or failure
by TENANT to comply with the terms of this Agreement, shall be deemed to be
additional rental due in the event of nonpayment by TENANT. CITY shall have all
the rights and remedies provided for herein or by law with respect thereto as
CITY has for the nonpayment of any other payment due pursuant to this Agreement.
3.5 Annual Reconciliation
Within sixty (60) days after the close of each calendar year, an annual
reconciliation of Gross Revenues for such calendar year shall be provided to
CITY by TENANT for determination of compliance with this Agreement and determine
what, if any, remaining funds are due and owing CITY based upon the provisions
of this Agreement. If such reconciliation reflects an overpayment, then that
amount shall be deducted from the next payment due CITY from TENANT under this
Agreement. If it is determined that TENANT underpaid CITY during such calendar
year, then, in that event, TENANT shall forthwith pay CITY said funds, and if
such underpayment was the result of fraud, gross negligence or willful neglect
on the part of TENANT, then TENANT shall additionally pay to CITY such
underpayment amount together with interest at twelve percent (12%) per annum,
calculated from the date the reconciliation reflects such funds are due.
Each annual reconciliation provided by TENANT to CITY pursuant to the
provisions of this Section 3.5 shall be accompanied with an "Opinion as to
Accuracy and Sufficiency" prepared by a national accounting firm retained by
TENANT based upon a review of TENANT's books, records and accounting procedures.
3.6 Books and Records
TENANT shall maintain accurate and complete books and records, including
income and sales tax returns and audit trails for complimentary tickets, in a
form which is consistent with the form of the books and records maintained by
TENANT at the Previous Amphitheaters, showing all Gross Revenues and shall, to
the extent possible, require all licensees, concessionaires, or others occupying
the Amphitheater or in any way doing business with TENANT at the Amphitheater to
do the same, for a period of not less than three (3) years after the expiration
of the year to which such records relate. Such records shall show all Gross
Revenues supported by documents of original entry such as sales slips, cash
register tapes, purchase invoices and tickets issued.
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In the case of admission charges, TENANT shall either: (i) issue serially
numbered tickets for each paid admission and keep accurate records of said
serial numbers issued and of those unused; (ii) record admission charges by
means of a cash register system which automatically issues a customer's receipt;
or (iii) any other method specifically approved by CITY in writing (such
approval not to be unreasonably withheld). CITY hereby approves the use of
Ticketron or comparable computerized ticket distribution system for purposes of
issuing tickets for Amphitheater events. TENANT shall make available to CITY and
shall retain for not less than three (3) years copies of all ticket
reconciliation statements and other ticket sale documentation produced by the
ticket agent selected by TENANT. TENANT shall have no obligation to retain
actual ticket stubs for more than ten (10) business days following a particular
performance. All sales and rentals of merchandise and services rendered, other
than T-shirts and other concert merchandise sold at mobile concessionaire units
which cannot reasonably have cash registers, shall be reported by means of a
cash register system. All said cash register systems shall have a lock-in,
accumulating, printed transaction counter which cannot be reset, and/or printed
detailed audit tape located within the register. Complete beginning and ending
cash register readings shall be made a matter of daily record. TENANT shall
retain sales tax returns for all merchandise and services and shall also retain
event inventory sheets for all T-shirt and other concert merchandise sales sold
at the mobile concessionaire units which cannot reasonably have cash registers.
TENANT shall retain for a period of three (3) years and make available to CITY
these above-referenced records and supporting documents. The books and records
shall be kept or made available at TENANT's place of business within Wake
County, North Carolina.
3.7 Right to Audit
CITY shall have the right to examine and audit from time to time, at the
discretion of CITY, TENANT's records of Gross Revenues, books of account and all
supporting documents relating to Gross Revenues. Notwithstanding the foregoing,
CITY shall not have the right to examine and audit the books and records of
TENANT pursuant to the right created in the immediately preceding sentence for a
second (2nd) time during any calendar year unless the first audit during such
calendar year uncovered a deviation from reported results in excess of three
percent (3%). TENANT shall use its reasonable efforts to include in each license
or concession agreement or any other agreement with anyone doing business with
respect to the Amphitheater or any part thereof, a provision giving CITY the
right of examination and audit by an independent certified public accountant or
such other person as CITY desires, at CITY's discretion, of such licensees' and
concessionaires' books and records in the same manner as provided in this
Section 3.7 with respect to Tenant's books and records.
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4.0 TAXES AND UTILITIES
4.1 Payment of Taxes, Assessments, etc.
TENANT shall pay and discharge, before any fine, penalty, interest or cost
may be added thereto for the nonpayment thereof, all taxes, and assessments of
any kind or nature whatsoever, general and special, ordinary and extraordinary,
foreseen and unforeseen, which at any time during the term of this Agreement may
be assessed, levied, confirmed or imposed upon, or become a lien on, the
Amphitheater or the Parking Facilities, or any part thereof or any appurtenance
thereto, or any tax assessed or levied as a result of any use or occupation of
the Amphitheater or Parking Facilities; provided, however, TENANT shall have the
right to contest in good faith in accordance with statutory procedures all taxes
and assessments which may be made with respect to the Amphitheater or Parking
Facilities.
4.2 Public Utility Charges
TENANT shall, at its sole cost and expense, pay or cause to be paid all
charges for gas, water, sewer, electricity, telephone or other service or
services furnished to the Amphitheater during the term of this Agreement to the
extent that such charges directly relate to TENANT's use of the Amphitheater.
CITY shall, at its sole cost and expense, pay or cause to be paid all charges
for gas, water, sewer, electricity, telephone or other service or services
furnished to the Amphitheater during the term of this Agreement to the extent
that such charges relate to the use of the Amphitheater by CITY, including,
without limitation, use of the Amphitheater pursuant to the provision of
Sections 5.8, 5.9 and 5.10 of this Agreement. Nothing contained in this Section
4.2 shall imply that TENANT or CITY shall be required to separately meter
utility charges associated with their respective use of the Amphitheater. In
that regard, it is acknowledged that TENANT shall develop standard rates to
reasonably approximate the charges for utility usage for each use of the
Amphitheater.
5.0 USE OF PREMISES
5.1 Use of Amphitheater
TENANT shall use and occupy the Amphitheater pursuant to this Agreement
solely for the operation of a quality amphitheater presenting cultural and
entertainment performances, permitting the holding of general meetings and
permitting other uses incidental to or customarily related to such uses. The
Amphitheater shall not be otherwise occupied without the prior written consent
of CITY.
TENANT shall not use or occupy the Amphitheater or permit the same to be
used or occupied in a manner which is contrary to the general manner in which
the Previous Amphitheaters are being currently, or have been previously, used
and occupied.
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TENANT shall use its reasonable skill and diligence in the conduct of the
operation of the Amphitheater and Parking Facilities, exercise sound business
judgment and undertake such commercially reasonable acts as may be reasonably
necessary so as to produce the maximum volume of trade and patronage reasonably
obtainable from the operation of the Amphitheater in a commercially reasonable
manner.
TENANT shall use its reasonable efforts to prohibit the sale of any
merchandise or services at the Amphitheater or in the Parking Facilities unless
such selling is conducted by TENANT or a licensee of TENANT.
5.2 Signs and Advertising
The location and size of any advertising signs which are visible from a
public right-of-way must receive the prior written approval of CITY as being in
compliance with all applicable laws, ordinance, rules and regulations governing
the location and size of advertising signs which are visible from public
rights-of-way. Notwithstanding anything to the contrary contained herein, it is
hereby specifically agreed and acknowledged that the location, design and size
of all signs located at the Amphitheater which are not visible from any public
right-of-way may be erected and maintained by TENANT without the obtaining of
any prior consent from CITY, except for CITY's approval of the location of such
signs which approval may only be withheld on the basis of safety concerns or
pedestrian movement problems.
5.3 Operation
TENANT shall use recognized modern business practices to provide efficient
and competent services to the public. If, at any time on or after the end of the
second (2nd) Amphitheater Season of the initial term of this Agreement, subject
to the provisions of Section 17.3 hereof, the average number of shows or events
presented at the Amphitheater by TENANT over the immediately preceding two (2)
Amphitheater Seasons is less than twenty (20) per Amphitheater Season, then
TENANT shall be deemed to have breached its obligations under this Agreement
unless TENANT pays to CITY a lump sum payment in an amount equal to the
additional rental payments which CITY would have received under this Agreement
over such two (2) year period if enough additional shows or events had been
presented at the Amphitheater by TENANT to cause the average number to equal
twenty (20). For purposes of calculating the amount of additional rental
payments which CITY would have received hereunder for shows or performances
which were not presented at the Amphitheater over a particular period of time as
required by the provisions of the immediately preceding sentence, the amount of
Gross Revenues which would have been generated at each such show or performance
shall be deemed to be equal to the average amount of Gross Revenues generated by
each performance or show which was actually presented at the Amphitheater over
such period of time.
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5.4 Handicapped Accessibility
TENANT shall operate the Amphitheater in such a manner as to assure that
it complies fully with all state, federal, and local standards for handicapped
accessibility. By way of clarification, it is hereby expressly acknowledged and
agreed that the obligation contained in the immediately preceding sentence shall
in no way impose upon TENANT an obligation to make any design or construction
changes to the Amphitheater to comply with any state, federal or local standards
for handicapped accessibility, it being agreed and acknowledged that the
foregoing provision relates solely to the manner in which the Amphitheater is
operated.
5.5 Balanced Programming
Part of the consideration inherent in CITY entering into this Agreement is
the fact that CITY considers the Amphitheater a significant community asset, but
only so long as programming at the Amphitheater is balanced in substantially the
manner hereinafter provided. As a result, it is the stated goal of the parties
hereto to each use their reasonable best efforts to cause Amphitheater
programming to be balanced so as to ensure a reasonably proportioned blend of
cultural experiences, recognizing and accepting the fact that some (e.g., so
called, "high arts") may not be as profitable as others (e.g., "rock and roll").
For purposes of this Agreement, "balance" shall mean a reasonable assortment of
varied tastes of the general population including, without limitation, popular,
rock and roll, blues, soul, jazz, folk, classical, country and western music,
comedy and theater. CITY and TENANT acknowledge that the examples contained in
this section, though applicable to 1990 tastes in entertainment, may not be
indicative of general tastes during the entire term of this Agreement. It is the
intent of the parties throughout this Agreement's term to appeal to the varied
entertainment tastes of the general public as such tastes may change over time.
CITY shall have the right to provide notice to TENANT at any time following the
end of any Amphitheater Season of any specific suggestions which it may have
with respect to future Amphitheater Seasons in order to comply with the intent
and purpose of this Section 5.5; provided, however, in no event shall the
provisions of this Section 5.5 ever be made the basis for declaring TENANT to be
in default under this Agreement because of the inherently subjective nature of
these provisions.
5.6 Traffic, Crowd Control and Cleanup
TENANT, at its expense, shall be responsible for, on those days and nights
on which TENANT presents a performance or show at the Amphitheater, cleanup of
the Amphitheater and Parking Facilities, crowd control, security, and traffic
control; provided, however, in no event shall TENANT be responsible for any
cleanup services related to trash generated by non-Amphitheater use of the
Amphitheater Site or the Parking Facilities.
TENANT shall provide adequate trash collection and cleaning service to
assure that the refuse of the patrons of the Amphitheater does not litter any
adjoining property. TENANT shall be responsible for providing such temporary
barriers and sufficient security personnel as are reasonably
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necessary to prevent patrons of the Amphitheater from parking on, walking on, or
otherwise trespassing upon adjoining properties. If it is determined by CITY
that the temporary barriers provided by TENANT pursuant to the foregoing
provisions are insufficient to prevent patrons of the Amphitheater from parking
on, walking on, or otherwise trespassing upon adjoining properties, then CITY
shall, at its sole cost and expense, provide permanent fences or other permanent
barriers as may be required in CITY's discretion.
CITY shall assist TENANT in working with the CITY Police Department to
arrange for uniformed police officers to provide traffic control on public
streets on the days and nights of Amphitheater performances or shows.
5.7 Scheduling
On or before April 1 of each calendar year, TENANT shall submit, for
informational purposes, to CITY its proposed schedule of events for the upcoming
Amphitheater Season insofar as the schedule may be known at that time. The
submission required by this Section 5.7 is in no way intended to limit or
prohibit the booking by TENANT of other events or shows during the Amphitheater
Season as dates and opportunities become available.
5.8 City Use
TENANT agrees that the CITY shall have the right to use the Amphitheater,
free of any rent, from time to time on such dates as may be approved by TENANT,
but not to exceed fourteen (14) events during each Amphitheater Season. It is
the intent of the parties that TENANT and the CITY shall jointly select the
dates to be utilized for the CITY's benefit as well as the nature of the
programs and events to occur on such dates. Without limiting the generality of
the foregoing, it is hereby specifically understood and acknowledged that TENANT
shall have the right to reject any program or event proposed by CITY pursuant to
this Section 5.8 which includes a "headline" entertainment act which has been,
in the immediately preceding twelve calendar months, or is currently, during the
next twelve calendar months, booked to perform more than eight (8) dates at
outdoor entertainment facilities having 4,000 or more seats. TENANT shall be
responsible for the presentation of such CITY events.
When the CITY presents an event pursuant to this Section 5.8, it shall be
obligated to pay to TENANT only an amount sufficient to reimburse TENANT for
actual expenses incurred for operating the Amphitheater in connection with such
event. Actual expenses shall include, but not be limited to, cleaning,
stagehands, allocable share of liability insurance premiums, security,
housestaff and public utility charges as described in Section 4.2 hereof.
CITY will receive all net income (after payment of artist costs,
advertising costs and other costs associated with the production and promotion
of a CITY event), if any, generated from the events presented by it pursuant to
this Section 5.8 after paying to TENANT the expenses determined as set out in
this section.
See Addendum A
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Addendum A to Lease Agreement
between City of Raleigh and
Sony Music/Pace Partnership ("Lease")
The following paragraph is hereby inserted at the end of Section 5.8 of
the lease:
Notwithstanding anything to the contrary contained herein, CITY shall have
the right to use the Amphitheater, free of rent, at any time during that portion
of any calendar year which is not included within an Amphitheater Season;
provided, however, that any such use of the Amphitheater by CITY shall be
conducted by CITY at its sole cost and risk and without any requirement or
obligation upon TENANT to assist in the presentation of any events to which such
use relates.
5.9 Third Party Use
CITY and TENANT agree that the CITY, with the prior approval of TENANT,
may designate that a third party non-profit organization may use one or more of
the fourteen (14) dates referred to in Section 5.8 hereof for the benefit of
such organization. Any event designated as a third-party non-profit event
pursuant to this Section 5.9 shall in all other respects be governed by the
provisions of Section 5.8 of this Agreement.
5.10 Non-Gated Use
In addition to the events described in Section 5.8 hereof, TENANT agrees
that CITY may use the Amphitheater or a portion thereof for non-gated,
non-profit events (a) up to eight (8) times per Amphitheater Season by providing
no more than thirty (30) days advanced written request to TENANT and (b) an
unlimited number of times per Amphitheater Season by providing not more than ten
(10) days advanced written request to TENANT; provided, however, that if TENANT
has otherwise scheduled or is then currently expecting to schedule an event for
the Amphitheater or otherwise has contracted with others for the use of the
Amphitheater or such portion thereof for such time as the CITY shall have
requested use of the Amphitheater or such portion thereof, then CITY shall not
be entitled to use the Amphitheater for such non-gated non-profit event.
All events presented pursuant to this Section 5.10 shall in all other
respects be governed by the provisions by the second and third paragraphs of
Section 5.8 of this Agreement.
5.11 Professional Concessionaire.
If any food, beverage or other concessions are to be sold at any event,
show, performance or presentation to be held at the Amphitheater pursuant to the
provisions of Section 5.8, Section 5.9 or Section 5.10 of this Agreement, then
no third party professional vendor or concessionaire may be used without the
prior written consent of TENANT (which consent may be withheld for any reason
whatsoever), other than the professional vendors or concessionaires which
provide services at the events and performances presented by TENANT at the
Amphitheater. In no event may the concession and vending equipment owned by
TENANT or TENANT'S concessionaires or vendors be used in connection with the
sale or dispensing of any food, beverage or merchandise at any event, show,
performance or presentation held at the Amphitheater pursuant to Section 5.8,
Section 5.9 or Section 5.10 of this agreement without the express consent of the
owner of such equipment.
5.12 City Tickets
At each event or show presented at the Amphitheater by TENANT pursuant to
this Agreement, TENANT shall provide to CITY, at no charge to CITY, twenty (20)
complimentary tickets in no less than ten (10) groups of two (2) each.
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6.0 CONSTRUCTION BY TENANT
6.1 Tenant's Right to Build
TENANT shall have the right, at any time and from time to time during the
term of this Agreement, to erect, maintain, alter, remodel, reconstruct,
rebuild, replace and remove buildings and other improvements on the Amphitheater
Site and correct and change the contour of any of the buildings and other
improvements on the Amphitheater Site subject to the following conditions:
(a) The cost of any such construction, reconstruction, demolition,
or of any change, alteration or improvement shall be borne and paid by
TENANT.
(b) The Amphitheater Site shall be at all times kept free of
mechanic's and materialman's liens.
(c) At least sixty (60) days prior to the anticipated commencement
of such remodeling, construction, replacement or other improvement, TENANT
shall submit to CITY detailed plans and specifications for the proposed
change. TENANT shall not commence work until written approval of the plans
and specifications is received from CITY, such consent not to be
unreasonably withheld or delayed. Any variations in the exterior,
landscaping, sound reducing or other structural portions of the buildings
or other improvements located on the Amphitheater Site shall require the
prior written consent of the CITY, such consent not to be unreasonably
withheld or delayed.
(d) TENANT shall comply with all applicable governmental laws,
ordinances, statutes, regulations, and codes that are applicable to any
construction work conducted pursuant to this Section 6.1.
Notwithstanding the foregoing, should CITY pass, enact or amend any ordinances,
laws, orders, rules, regulations or requirements after the date hereof which
would have the effect of requiring TENANT to erect, maintain, alter, remodel,
reconstruct, rebuild, replace or remove buildings and other improvements on the
Amphitheater Site or to correct or change the contour of the buildings and other
improvements on the Amphitheater Site, then CITY shall be solely responsible for
payment of all sums required to be expended for such construction work.
6.2 Tenant's Furniture, Fixtures & Improvements
TENANT shall have the right at any time and from time to time during the
term of this Agreement to install in or upon the Amphitheater, furniture,
movable trade fixtures, and equipment and make repairs thereto and additions
thereto. All such furniture, movable trade fixtures and
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equipment shall be and remain the property of TENANT during the term of this
Agreement, and TENANT shall bear all cost, loss, and expense for any casualty or
theft risk in connection with such furniture, movable trade fixtures, and
equipment. Upon the termination or expiration of this Agreement, all such
furniture, movable trade fixtures and equipment shall be removed by TENANT.
6.3 CITY's Right to Inspect Premises
CITY shall have the right to inspect the Amphitheater at all reasonable
times upon prior notice to TENANT, so long as such inspections do not limit or
interfere with the presentation or preparation for presentation of any
performance or show at the Amphitheater.
7.0 REPAIRS AND RESTORATION
7.1 Repair and Maintenance
The obligation to cause the Amphitheater and all equipment and fixtures
used in connection with the operation of the Amphitheater to be maintained and
repaired shall be borne jointly by TENANT and CITY in accordance with the
following provisions:
(a) TENANT shall be responsible, at its sole cost and expense, to
provide all normal and routine day-to-day maintenance and repair work.
(b) CITY shall be responsible, at its sole cost and expense, to
provide all major repairs and replacements.
In the event there should be any doubt as to whether a particular item of
maintenance or repair is the responsibility of TENANT or CITY, the parties shall
be guided by generally accepted accounting principles such that TENANT shall be
responsible for payment of all items and matters which would be deductible or
expensed for accounting purposes in accordance with generally accepted
accounting principles and CITY shall be responsible for payment of all matters
which would be capitalized for accounting purposes in accordance with generally
accepted accounting principles.
7.2 Advances for Capital Improvements
If TENANT elects to extend the term of this Agreement for an additional
twenty (20) Amphitheater Seasons pursuant to the right created in Section 2.2 of
this Agreement, then, at all times after TENANT's exercise of such extension
option, TENANT shall be obligated to make advances to CITY each time CITY is
required to expend funds for capital improvements in accordance with the
provisions of section 7.1(b) of this Agreement. Each advance extended by TENANT
pursuant to the obligation contained in the immediately preceding sentence shall
(i) accrue interest at a fixed rate equal to the then average of CITY's cost of
obtaining borrowed funds, compounded annually, (ii) be repayable from CITY to
TENANT
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on the commencement of the first (1st) Amphitheater Season of the extended
twenty (20) Amphitheater Season renewal term and (iii) be payable by TENANT
offsetting against its $1,500,000.00 renewal fee obligation to CITY as set forth
in Section 2.2 of this Agreement. If the aggregate amount due and owing pursuant
to all such loans exceeds such $1,500,000.00 renewal fee payment, then TENANT
shall be authorized to continue to thereafter recoup all such amounts
outstanding, together with such continuing accrued interest thereon, from future
rental payments due under Section 3.2 of this Agreement during the renewal term.
Notwithstanding anything to the contrary contained herein, CITY is not pledging
its full faith and credit or taxing authority to the obligation to repay the
advances from TENANT to CITY hereunder, and TENANT's only recourse for repayment
of any such advanced sums shall be to offset against rental payments otherwise
payable hereunder from TENANT to CITY.
7.3 Drive Approaches
The obligation to repair, maintain and upkeep the driveways and other
vehicular approaches between the public right of ways and the various Parking
Facilities shall be the joint responsibility of Owner and CITY in accordance
with the following provisions:
(a) TENANT shall be responsible, at its sole cost and expense, to
provide the normal and routine maintenance of all driveways and drive
approaches including, without limitation, filling all potholes thereon.
(b) CITY shall be responsible, at its sole cost and expense, to
resurface all driveways and drive approaches at the same time, and in the
same manner, as CITY causes the adjacent public right of ways and streets
to be resurfaced in accordance with its standard resurfacing procedures.
7.4 Maintenance and Repair of Parking Facilities
The responsibility for upkeep, repair and maintenance of the Parking
Facilities shall be divided between CITY and TENANT in accordance with the
following provisions:
(a) CITY shall be responsible, at its sole cost and expense, for all
maintenance, repair and upkeep as may be necessary to maintain the
Softball Parking Lot, the Additional Parking Facilities and the NCDOT
Parking Lot in a good state of appearance and repair.
(b) TENANT shall be responsible, at its sole cost and expense, for
all maintenance, repair and upkeep as may be necessary to maintain the
South Parking Lot in a good state of appearance and repair during each
Amphitheater Season during the term of this Agreement. CITY shall be
responsible, at its sole cost and expense, for all maintenance, repair and
upkeep as may be necessary to maintain the South Parking Lot in a good
state
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of appearance and repair at all times other than the Amphitheater Seasons.
7.5 Damage or Destruction
In the event the Amphitheater is damaged or destroyed from any casualty,
CITY shall to the extent of available insurance proceeds, repair the damage and
restore the Amphitheater to the extent reasonable and practical under the
circumstances then existing; provided, however, CITY shall not be required to so
repair and restore the Amphitheater and shall be entitled to terminate this
Agreement by written notice to TENANT in the event (a) the Amphitheater is
damaged or destroyed from any casualty of a type then generally excluded from
conventional property insurance and if, as a result, no insurance proceeds are
available or (b) in the reasonable discretion of CITY there is an insufficient
amount of insurance proceeds available to permit adequate reconstruction and
repair of the Amphitheater and neither TENANT nor CITY agree to provide
sufficient funds to cover the amount of the deficiency. Any funds advanced by
TENANT to cover the deficiency referred to in clause (b) of the immediately
preceding sentence shall be deemed to have been advanced by TENANT to CITY
pursuant to the provisions of Section 7.2 hereof and shall be governed by the
repayment provisions thereof.
CITY shall be entitled to all of the insurance proceeds payable by reason
of any such damage or destruction; provided, however, if CITY elects not to
repair the damage and restore the Amphitheater as a result of there being an
insufficient amount of insurance proceeds, then CITY shall be obligated to pay
or cause to be paid to TENANT twenty-four percent (24%) of such insurance
proceeds. If any Mortgagee has provided notice to CITY of its existence pursuant
to the right created in the third grammatical paragraph of Section 10.2 hereof,
then any amounts payable to TENANT pursuant to this Section 7.5 shall be paid to
such Mortgagee.
All rental payments due from TENANT to CITY required hereunder shall xxxxx
in full until completion of the repair and restoration. In case of a casualty to
the Amphitheater resulting in damage or destruction, TENANT will immediately
give written notice thereof to CITY.
7.6 Condemnation
If all or substantially all of the Amphitheater and the Parking Facilities
shall be taken in condemnation proceedings, this Agreement shall terminate as of
the taking and the rental payments due hereunder from TENANT to CITY shall be
paid to the date of such taking. For purposes of this section 7.7,
"substantially all of the Amphitheater and the Parking Facilities" shall be
deemed to have been taken if the untaken portion cannot be practically and
economically used or converted for use by TENANT, in TENANT's sole opinion, for
the purposes for which the Amphitheater and the Parking Facilities are being
used immediately prior to such taking.
Except as provided below, if only a part of the Amphitheater and the
Parking Facilities are taken in condemnation proceedings, this Agreement
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shall remain in effect as to that part of the Amphitheater and Parking
Facilities not taken; however, TENANT shall have the option by notice to CITY
within a reasonable time after such taking to restore or repair the portion of
the Amphitheater, if any, then on the Amphitheater Site to the extent TENANT
determines to be reasonable and practical under the circumstances then
obtaining. If TENANT elects to so repair or restore, TENANT shall be entitled to
the recovery of all of the award made or damages granted to the extent necessary
for such repair and restoration. In the event TENANT elects not to repair or
restore, then this Agreement shall terminate as of the taking of the part of
the Amphitheater or the Parking Facilities in question, and the rental payments
due hereunder shall be abated during the unexpired portion of this Agreement,
effective on the date of such taking. CITY and TENANT shall be entitled to each
make claim for and receive such damages in accordance with the loss and damage
suffered by each, taking into consideration all the relevant facts and
circumstances.
In any condemnation proceedings CITY and TENANT agree to cooperate in
obtaining the highest award possible. Any compensation which may be awarded on
account of the taking of all or a part of the Amphitheater or the Parking
Facilities by condemnation proceedings shall be fairly allocated between the
ownership interest of CITY and the rights, titles and interests of TENANT in and
to the Amphitheater and the Parking Facilities under this Agreement with the
loss and damage suffered by CITY and TENANT, taking into consideration all of
the relevant facts and circumstances.
8.0 TITLE IMPEDIMENTS
8.1 Prohibitions
TENANT shall not at any time suffer or permit any mechanic's liens or
other liens to be filed against the fee of the Amphitheater nor against CITY's
leasehold interest in the Amphitheater by reason of any work, labor, services,
or materials supplied or claimed to have been supplied to TENANT or anyone
holding the Amphitheater or any part thereof through or under TENANT. TENANT
will not in any way cloud the title to the Amphitheater, or any part thereof,
and will promptly pay and discharge any and all debts contracted by it in
reference thereto for labor, material, or services, to the end that no liens
shall attach to the Amphitheater.
Likewise, CITY shall not at any time suffer or permit any mechanic's liens
or other liens to be filed against the fee estate of the Amphitheater nor
against CITY's leasehold interest in the Amphitheater by reason of any work,
labor, services or materials supplied or claimed to have been supplied to CITY
or anyone holding the Amphitheater or any part thereof through or under CITY.
CITY will not in any way cloud the title to the Amphitheater, or any part
thereof and will promptly pay and discharge any and all debts contracted by it
in reference thereto for labor, material, or services, to the end that no liens
shall attach to the Amphitheater.
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TENANT and CITY each hereby stipulate, acknowledge and agree that nothing
contained in this Section 8.1 shall impose any obligation on either party hereto
to remove or cure any Permitted Encumbrance affecting title to the Amphitheater
or the Parking Facilities.
8.2 Removal of Liens
If any mechanic's or materialman's lien or any other lien shall be
recorded against the Amphitheater, or any part thereof, TENANT or CITY, as
appropriate, shall, at such party's sole cost and expense, and within sixty (60)
days after the filing thereof, cause the same to be removed. In the alternative,
if TENANT or CITY, as appropriate, in good faith desires to contest the same,
such party shall be entitled to do so but in such a case such party hereby
agrees to indemnify and save the other party harmless from all liability of a
judgment or foreclosure upon said mechanic's lien, and cause the same to be
discharged and removed prior to the execution of such judgment.
9.0 INSURANCE
9.1 Insurance Coverage
During the initial and any renewal term of this Agreement, TENANT shall,
at its sole cost and expense, carry and maintain for the mutual benefit of
itself and the CITY, a policy of fire and extended coverage insurance insuring
all improvements at any time located upon the Amphitheater Site and all
additions, alterations and improvements to the same, against damage and
destruction by all causes generally insured against in policies of fire and
extended coverage insurance written on real property. The Amphitheater Site
shall be insured for 100% of the replacement cost of all improvements located
thereon. The TENANT's furniture, movable trade fixtures, and equipment shall
also be insured for 100% of the replacement cost thereof. Such insurance shall
be written with a company authorized to engage in the business of casualty
insurance in the State of North Carolina and approved in writing by CITY, which
approval will not be unreasonably withheld or delayed. Upon commencement of the
term of this Agreement and thereafter not less than fourteen (14) calendar days
prior to the expiration date of any policies required by this section,
certificates of insurance satisfactory to CITY evidencing the payment of the
premiums shall be delivered by TENANT to CITY.
9.2 Liability Insurance
TENANT at all times during the term of this Agreement, shall procure and
maintain in full force and effect, general public liability insurance, insuring
TENANT against any and all claims, actions, causes of actions, costs and
expenses for or on account of any loss of, injury to or destruction of any
person or property, caused by or resulting from any act or omission occurring
on or about the Amphitheater Site or growing out of TENANT's use and occupancy
of the Amphitheater Site with limits, which limits may be increased upon the
mutual agreement of TENANT and CITY, of at
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least $300,000.00 for one person and at least $5,000,000.00 (if available at a
reasonable cost) for one accident for personal injury to or death of any person
or persons and at least $100,000.00 property damages on an "occurrence basis".
Such insurance shall be written with a company acceptable to CITY and authorized
to engage in the business of general liability insurance in the State of North
Carolina and shall name CITY and WAAC as additional insureds thereunder. Said
insurance shall provide that it may not be canceled without CITY's being given
fifteen (15) days notice prior to cancellation by the insurance company. TENANT
shall provide CITY with current certificates of insurance and shall also provide
CITY with paid receipts and other evidence satisfactory to CITY indicating
payment of the premium for said insurance policy or policies at least fourteen
(14) days prior to the expiration of the policy or policies of insurance.
9.3 Notice of Cancellation
Each insurance policy or certificate issued by the insurer shall contain
an agreement by the insurer that such policy shall not be canceled without at
least fifteen (15) days prior written notice to CITY and that any loss which
shall be payable to or on behalf of CITY as provided herein shall be so payable
notwithstanding any act or negligence of TENANT which might otherwise result in
a forfeiture of all or a part of such insurance.
9.4 Indemnification
TENANT covenants and agrees that it will indemnify, defend and hold CITY
and WAAC forever harmless against and from any penalty or damage or charges
imposed for any violation of any law or ordinance, whether occasioned by the act
or neglect of TENANT or those holding under TENANT (other than CITY or WAAC).
TENANT also covenants and agrees that it will indemnify, defend, and hold CITY
and WAAC harmless against and from all claims, losses, costs, damages or
expenses arising out of or from any accident or other occurrence occurring on or
about the Amphitheater premises while TENANT is in control of the use and
operation of the Amphitheater. TENANT also covenants and agrees that it will
indemnify, defend, and hold CITY and WAAC harmless against and from any and all
claims and against any and all losses, costs, damages or expenses arising out of
any failure of TENANT in any respect to comply with and perform all the material
requirements and material provisions of this Agreement.
CITY covenants and agrees that it will indemnify, defend and hold TENANT
forever harmless against and from any penalty or damage or charges imposed for
any violation of any law or ordinance, whether occasioned by the act or neglect
of CITY or those holding under CITY (other than TENANT). CITY also covenants and
agrees that it will indemnify, defend, and hold TENANT harmless against and from
all claims, losses, costs, damages or expenses arising out of or from any
accident or other occurrence occurring on or about the Amphitheater premises
while CITY is in control of the use and operation of the Amphitheater or any
portion of the Property. CITY also covenants and agrees that it will indemnify,
defend, and hold TENANT harmless against and from any and all claims and against
any and all losses, costs, damages or expenses arising out of any failure of
CITY in
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any respect to comply with and perform all the material requirements and
material provisions of this Agreement.
10.0 ASSIGNMENT AND MORTGAGES
10.1 Right to Assign
TENANT shall have the right to assign, convey or transfer TENANT's
interest in this Agreement to any affiliate of TENANT without the prior consent
of CITY, in which case such assignee shall in all respects be deemed to be the
"TENANT" for all purposes hereof from and after such assignment.
10.2 Right to Mortgage and Mortgagee Protection.
TENANT shall have the right, without the consent of CITY, at any time and
from time to time during the term hereof, to mortgage, pledge or otherwise
encumber or hypothecate, all or any part of or interest in TENANT's leasehold
estate created hereby; provided, however, any exercise of any such right shall
be made subject to all of the provisions hereof.
As used in this Section 10.2, the term "Mortgage" shall mean any deed of
trust, mortgage, security agreement, collateral assignment or other lien that
TENANT may hereafter affix or impose against the leasehold estate created hereby
and the term "Mortgagee" shall mean the owner of any indebtedness secured by any
Mortgage.
Should any Mortgagee desire to receive copies of any and all notices CITY
may give to TENANT hereunder, any such Mortgagee may give CITY written notice
thereof, which notice shall include Mortgagee's address for notice. Thereafter,
CITY shall, concurrently with the giving of any notice to TENANT, give like
notice or a copy thereof to any such Mortgagee. Any notice given to TENANT shall
not be effective or considered given for purposes of this Agreement until it or
a copy thereof is also given to each such Mortgagee who has requested CITY to
give it copies of notices CITY gives to TENANT.
Each Mortgagee shall have the right to perform any obligation of TENANT
hereunder, including without limitation, the obligation of TENANT to pay rent
hereunder, and CITY shall accept performance of any such obligation by any
Mortgagee. Any performance by a Mortgagee of any obligation of TENANT hereunder
shall have the same effect as and shall constitute performance of such
obligation by TENANT.
Notwithstanding anything to the contrary contained herein, any Mortgagee
shall have the right, without the prior consent or authorization of CITY, to (a)
conduct a foreclosure sale under its respective Mortgage and sell, transfer or
assign the leasehold estate of TENANT under this Agreement to the purchaser at
such foreclosure sale, (b) accept conveyance of TENANT's leasehold interest
under this Agreement in lieu of foreclosure under its respective Mortgage or (c)
assign, convey or transfer the
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leasehold estate created pursuant to this Agreement to a third party purchaser
following acquisition of the leasehold estate created hereunder by such
Mortgagee pursuant to the rights created in the foregoing clauses (a) or (b), so
long as the third party purchaser is an experienced operator of permanent
outdoor entertainment facilities substantially similar to the Amphitheater, in
which event such Mortgagee shall be released from all its obligations hereunder
if the third party purchaser expressly assumes all obligations of the TENANT
hereunder.
10.3 Acquisition of Tenant's Interest in the Leasehold Estate; New Agreement.
Upon the acquisition of any ownership interest in and to the leasehold
estate in the Amphitheater created by this Agreement by a Mortgagee or any other
person or entity (any such Mortgagee or other person or entity who acquires such
interest herein being called a "New Tenant", it being understood that a New
Tenant is also a TENANT for all purposes hereunder), regardless of how such
acquisition occurs, whether through foreclosure of liens created by a Mortgage
or assignment of such interest in such leasehold estate in lieu of foreclosure,
or otherwise, such New Tenant shall succeed to the rights of TENANT with respect
to such interest in such leasehold estate of the Amphitheater acquired by it,
with the same force and effect as if this Agreement had, with respect to such
interest in such leasehold estate, been originally entered into between CITY, as
landlord, and such Mortgagee or such person or entity, as TENANT, and this
Agreement shall remain in full force and effect. Notwithstanding the foregoing,
the acquisition of any such ownership interest in and to the leasehold estate
in the Amphitheater created by this Agreement by New TENANT shall not be
effective unless and until: (i) all rent payments hereunder then owing by TENANT
have been paid and (ii) CITY has been delivered a fully executed and
acknowledged counterpart of the instrument evidencing such acquisition which
contains an express assumption by New Tenant of this Agreement and of all the
obligations hereunder on the part of TENANT to be kept, observed or performed
after the effective date of such acquisition and which sets forth the mailing
address of the New Tenant for purposes of this Agreement. If, within thirty (30)
days after New Tenant acquires TENANT's interest in this Agreement, New Tenant
requests, by giving written notice to CITY, that CITY enter into a new lease
with New Tenant, then CITY, within thirty (30) days after such notice is given,
shall execute a new lease with New Tenant for the unexpired balance of the term
of this Agreement and on the same terms and conditions set forth in this
Agreement; provided, however, CITY shall not have any obligation to execute such
new lease with New Tenant unless and until such New Tenant satisfies each of the
following conditions:
(a) any uncured event of default is cured;
(b) New Tenant delivers evidence reasonably satisfactory to CITY
that such person or entity claiming to be a New Tenant is, in fact, a New
Tenant and is entitled to obtain a new Agreement from CITY pursuant to the
provisions of this Section 10.3; and
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(c) New Tenant (i) represents and warrants to CITY that it is
entitled to obtain a new lease from CITY pursuant to the provisions of
this Section 10.3 and (ii) agrees to indemnify and hold CITY harmless from
any claim, loss, cost, damage or expense (including court costs and
reasonable attorney's fees) arising out of any failure of such person or
entity actually being a New Tenant hereunder or any failure of such New
Tenant actually being entitled to obtain a new lease from CITY.
New Tenant shall reimburse CITY for all out-of-pocket expenses incurred by CITY
(including reasonable attorney's fees) in entering into a new lease with New
Tenant pursuant to the provisions of this Section 10.3.
10.4. Mortgagee's Right to a New Lease.
Upon termination of TENANT's right to possession of the Amphitheater or
upon termination of this Agreement pursuant to an exercise of CITY's remedies
following the occurrence of an event of default or upon termination of this
Agreement for any other reason, any Mortgagee who was holding a Mortgage
immediately prior to any such termination shall have the right to receive from
CITY a new lease of the Amphitheater for the unexpired balance of the term of
this Agreement (assuming for purposes of this Section 10.4 that this Agreement
has not been terminated and TENANT's right to possession has not been
terminated) on the same terms and conditions set forth in this Agreement by
giving CITY written notice ("New Agreement Notice") thereof within thirty (30)
days after the date of any such termination; provided, however, CITY shall not
have any obligation to execute such new lease with Mortgagee unless such
Mortgagee satisfies each of the following conditions within thirty (30) days
after Mortgagee gives CITY the New Agreement Notice:
(a) Any uncured event of default which can be cured by the payment
of money is cured. All income collected or received by or for the account
of CITY from the Amphitheater subsequent to the date of termination of
this Agreement or termination of TENANT's right to possession of the
Amphitheater, less all reasonable expenses incurred by CITY in managing
and operating the Amphitheater, shall be applied against rent which would
at the time of the execution and delivery of such new lease be due under
this Agreement but for such termination of this Agreement or termination
of TENANT's right to possession of the Amphitheater.
(b) Such Mortgagee delivers evidence reasonably satisfactory to CITY
that such person or entity claiming to be a Mortgagee is, in fact, a
Mortgagee and is entitled to obtain a new lease of the Amphitheater from
CITY pursuant to the provisions of this Section 10.4.
(c) Such Mortgagee (i) represents and warrants to CITY that it is a
Mortgagee and is entitled to obtain a new lease of the Amphitheater from
CITY pursuant to the provisions of this
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section 10.4 and (ii) agrees to indemnify and hold CITY harmless from any
claim, loss, cost, damage or expense (including court costs and reasonable
attorney's fees) arising out of any failure of such person or entity
actually being a Mortgagee hereunder or any failure of such Mortgagee
actually being entitled to obtain a new lease of the Amphitheater from
CITY.
CITY shall enter into such new lease of the Amphitheater with such Mortgagee
within sixty (60) days after Mortgagee gives CITY the New Agreement Notice. If
CITY enters into such new lease with such Mortgagee as a result of TENANT's
right to possession of the Amphitheater being terminated, then upon the
execution and delivery of such new lease, this Agreement shall terminate and be
of no further force and effect. If more than one Mortgagee makes written request
upon CITY in accordance with the provisions of this Section 10.4, such new lease
shall be delivered pursuant to the request of the Mortgagee whose Mortgage is
prior in lien. The Mortgagee who obtains the new lease shall reimburse CITY for
all out-of-pocket expenses incurred by CITY (including reasonable attorney's
fees) in performing its obligations under this Section 10.4. Any new lease of
the Amphitheater created pursuant to the rights contained in this Section 10.4
shall be of equal priority to this Agreement and shall in all events be prior
and superior to any lease, lien or other encumbrance created after the date
hereof. Upon acquisition of a new lease pursuant to the provisions of this
Section 10.4, the Mortgagee so acquiring such new lease shall have a one-time
right to assign, convey or transfer the leasehold estate under such new lease to
an experienced operator of permanent outdoor entertainment facilities
substantially similar to the Amphitheater without the prior consent of CITY and
such Mortgagee shall be released from its obligations under such new lease if
the permitted assignee expressly assumes all obligations of the "Tenant" under
such new lease.
Upon written notice from TENANT, and as to any Mortgagee named in such
notice, CITY and TENANT covenant and agree (for the benefit of any and all
Mortgagees so named) that this Agreement will not be modified, altered or
amended in any way, nor will CITY accept a voluntary surrender of the
Amphitheater or this Agreement without the prior written consent of any such
Mortgagees.
11.0 DEFAULT
11.1 Events of Default by Tenant
Each of the following events shall constitute a default by TENANT:
(i) If TENANT shall fail to pay any installment of rent due to CITY
from TENANT pursuant to this Agreement. Such failure to make a payment
shall not constitute default until it has continued for at least ten (10)
days past the due date of the payment.
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(ii) If TENANT shall fail to provide any policy or certificate of
insurance required herein, or if TENANT shall fail to pay any premium,
installment or other charge due with respect to any such policy of
insurance, or if TENANT shall fail to pay any installment of any tax or
assessment required hereunder or if TENANT shall fail to provide any bond
required herein.
(iii) The failure by TENANT to comply with any of the requirements
of section 5 of this Agreement (except for the requirements of Section
5.5) including the restrictions on the use of the Amphitheater.
(iv) If TENANT shall fail to remove any lien filed against the
Amphitheater, as required by this Agreement.
(v) If TENANT shall assign its interest in this Agreement without
the consent of the CITY, unless such assignment is specifically permitted
pursuant to the provisions of Sections 10.1, 10.2 or 10.4 of this
Agreement.
(vi) Failure to (x) provide the annual reconciliation of financial
information required herein, (y) provide the Opinion as to Accuracy and
Sufficiency with respect to such annual reconciliation as required herein
or (z) maintain the books and records required herein.
(vii) The failure or refusal of TENANT to perform or comply with any
other term, condition or covenant contained in this Agreement. The
numeration and description of specific acts of default shall not be
construed so as to limit the generality of this subsection.
11.2 Time to Cure Default
In the event TENANT suffers or commits any act of default as defined
above, CITY shall give written notice thereof to TENANT.
TENANT shall have thirty (30) days from the date such notice is sent or
hand-delivered to cure the default described in the notice.
Notwithstanding the foregoing, if the default of TENANT consists of the
failure of TENANT to pay any installment of rent due to the CITY or the failure
of TENANT to obtain any policy of insurance required pursuant to this Agreement
or the failure to pay any insurance premium on or before its due date, the cure
period shall be ten (10) days, rather than thirty (30) days, from notice.
Provided further, that, if the default described in CITY's notice to TENANT
shall occur other than in the payment of money, and such default cannot with due
diligence be cured within a 30-day period and, TENANT, prior to the expiration
of such 30-day cure period, commences to eliminate the cause of such default,
and diligently pursues same to its reasonable completion, but in no event longer
than 180 days, then such action shall constitute cure of such default.
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11.3 Remedies Upon Default
If, at the expiration of the above-stated period for cure, TENANT has
failed or refused to cure such default, CITY may declare this Agreement
terminated and the TENANT shall surrender the Amphitheater and its improvements
to CITY.
No action or inaction by CITY shall constitute an implied waiver of
default.
11.4 Default by City.
In the event (i) CITY should fail or refuse to perform or comply with any
term, condition or covenant contained in this Agreement which is imposed upon
CITY and such failure or refusal continues uncured or unremedied for a period of
thirty (30) days after notice thereof is provided from TENANT to CITY (provided,
however, if the default described in TENANT's notice to CITY cannot with due
diligence be cured within a thirty (30) day period and, CITY, prior to the
expiration of such thirty (30) day cure period, commences to eliminate the cause
of such default, and diligently pursues same to its reasonable completion, but
in no event longer than 180 days, then such action shall constitute cure of such
default), (ii) CITY should enact, pass or otherwise implement any law, rule,
ordinance, statute or regulation which relates specifically and only to the
Amphitheater and which has the effect of substantially and materially adversely
affecting the ability of TENANT to conduct the business contemplated by this
Agreement or (iii) TENANT's ability to conduct the business contemplated by this
Agreement in the Amphitheater is substantially and materially adversely affected
as a result of any false or untrue representation or warranty made by CITY in
this Agreement, then, in any such event, CITY shall be deemed to be in default
under the terms of this Agreement. Upon the occurrence of a default by CITY
under the terms of this Agreement, TENANT shall have the right to pursue all
rights, remedies and recourses which may be available to it at law or in equity.
12.0 SURRENDER OF AMPHITHEATER
12.1 Peaceful Surrender
TENANT hereby acknowledges the CITY'S leasehold interest in the
Amphitheater and the TENANT also recognizes and acknowledges that upon
termination of this Agreement, title to all real property and fixtures on the
Amphitheater Site shall immediately vest in the CITY without the necessity of
any action by CITY or any deed or other relinquishment of title by TENANT.
Upon the expiration of the term of this Agreement or sooner termination of
this Agreement in accordance with the provisions hereof, TENANT will quietly and
peacefully surrender to CITY the Amphitheater and all real property improvements
and fixtures thereon.
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13.0 RIGHT TO PERFORM OTHER PARTIES' COVENANTS
13.1 Right to Perform Covenants
Each of the parties hereto shall have the right at any time, after thirty
(30) days notice to the other party hereto (or without notice in case of an
emergency or in case any fine, penalty, interest or cost may otherwise be
imposed or in the case of the lapse of any insurance coverage required by this
Agreement), to make any payment or perform any act required by such other party
by any provision of this Agreement, and in exercising such right, to incur
necessary and incidental costs and expenses. Nothing herein shall imply any
obligation on the part of either party hereto to make any payment or perform any
act required of the other party hereto and the exercise of the right to do so
shall not constitute a release of any obligation or a waiver of any default.
13.2 Reimbursement
All payments made and all costs and expenses incurred in connection with
any exercise of the right referred to in Section 13.1 shall be reimbursed by the
responsible party within ten (10) days after request for such payment.
14.0 PARKING FACILITIES
14.1 Existing Parking Facilities
CITY hereby represents and warrants that it is the owner of or otherwise
has exclusive right to possession and control of the South Parking Lot, the
Softball Parking Lot and the Additional Parking Facilities. CITY hereby
acknowledges that in order for the NCDOT Parking Lot to be effectively used in
conjunction with the operation of the Amphitheater, TENANT must have the right
to exclude entry into the NCDOT Parking Lot at all times following 5:00 p.m. on
each day of any Amphitheater performance. CITY hereby agrees that, to the extent
that the NCDOT Parking Lot is needed to provide sufficient parking for the
Amphitheater, it will use its best efforts to obtain the cooperation of the
owner of the NCDOT Parking Lot to permit TENANT the right to control the use of
the NCDOT Parking Lot after 5:00 p.m. every day.
14.2 Use of Parking Facilities; Access Easements
TENANT shall have the exclusive right to possess, control and use the
Parking Facilities (which shall include the right to charge and collect parking
fees from Amphitheater patrons) at all times during which any performance or
show is being presented at the Amphitheater by TENANT pursuant to the terms of
this Agreement. Notwithstanding the provisions contained in the immediately
preceding sentence, CITY shall have the right (i) to use up to 600 spaces in the
Softball Parking Lot to accommodate the
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use of the softball fields adjacent thereto at all times and (ii) to use all of
the Parking Facilities at times during which the Amphitheater is not in use by
TENANT in a manner which does not cause an unreasonable wear and tear on the
Parking Facilities. TENANT shall be responsible, at its sole cost and expense,
to provide all necessary traffic control, security and cleanup on the Parking
Facilities with respect to its use of the Parking Facilities in conjunction with
the use, operation and control of the Amphitheater, with the exception that
TENANT shall not be responsible for cleanup or security on the 600 spaces in the
Softball Parking Lot used by CITY for patrons of the softball facilities. CITY
shall be responsible, at its sole cost and expense, to provide all traffic
control, security and cleanup on the Parking Facilities in conjunction with any
use of the Parking Facilities by CITY including, without limitation, use of the
600 spaces in the Softball Parking Lot, with the exception that CITY shall not
be responsible for traffic control to the 600 spaces in the Softball Parking Lot
on the nights that a performance or show is being presented at the Amphitheater.
CITY does hereby grant and convey to TENANT throughout the entirety of the
term of this Lease an easement on, over and across the Property as may be
required or necessary to permit sufficient vehicular and pedestrian ingress and
egress to, from and among the Amphitheater Site, the Softball Parking Lot, the
NCDOT Parking Lot and the public rights of way which abut the Property and the
Amphitheater Site.
14.3 Number of Parking Spaces
CITY hereby acknowledges and agrees that it shall be responsible for
providing a sufficient number of parking spaces within reasonable walking
distance from the Amphitheater. If the number of parking spaces available for
use in the Parking Facility should ever be less than the number which may be
required by any applicable rule, law, ordinance or regulation, then CITY shall
be obligated, and hereby does covenant, to acquire additional land located
within a reasonable walking distance from Amphitheater for purposes of
constructing additional Parking Facilities thereon.
15.0 REPRESENTATIONS, WARRANTIES AND COVENANTS
15.1 Representations, Warranties and Covenants of City
CITY hereby unconditionally warrants, represents and covenants to TENANT
as follows:
(a) The execution, delivery and performance by CITY of this
Agreement (i) is within CITY's powers and has been duly authorized in
accordance with CITY's charter, other documents or instruments governing
or controlling the existence and operation of CITY and all laws, rules,
regulations and statutes which affect or relate to the governance,
existence or operation of CITY, (ii) has received all requisite prior
governmental approval in order to be legally binding and enforceable in
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accordance with its terms; and (iii) will not violate, be in conflict
with, result in a breach of or constitute a default under, any legal
requirement or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any CITY's property or assets.
(b) To the best of CITY's knowledge, all information, reports,
papers and data given to TENANT with respect to CITY or the Property are
accurate, complete and correct in all material respects and do not omit
any fact, the inclusion of which is necessary to prevent the facts
contained therein from being materially misleading.
(c) CITY is currently the owner of fee simple title to the Property
and the Amphitheater Site subject to no liens, claims, leasehold estates
or any other encumbrances. CITY has previously delivered to TENANT a true
and correct copy of CITY's Owners Policy of Title Insurance insuring its
fee simple title in and to the Property and the Amphitheater Site. CITY
shall not (x) sell, transfer or assign its right, title and interest in
and to the Property or the Amphitheater Site in a manner which would be in
violation of or otherwise in derogation of the exclusive rights created in
favor of TENANT hereunder or (y) enter into the Ground Lease with WAAC
except and unless each of the following documents and instruments are
executed and delivered simultaneously therewith:
(i) the Lease Purchase Agreement;
(ii) the Mutual Recognition Agreement more fully described in
Section 16.1(c)(i) of this Agreement; and
(iii) the Mutual Recognition Agreement more fully described in
Section 16.1(c)(ii) of this Agreement.
(d) CITY hereby represents and warrants to TENANT that it will own,
as of the commencement of the term of this Agreement, a valid and
enforceable leasehold estate in and to the Amphitheater pursuant to the
terms of the Lease Purchase Agreement subject to no liens, claims or other
leasehold estates.
(e) CITY hereby covenants and agrees to take all actions as may be
necessary to fulfill the obligations of WAAC under the Development
Agreement.
(f) CITY hereby specifically agrees and acknowledges that all of the
rights and privileges created under this Agreement in favor of TENANT
shall be fully and completely recognized by CITY and enforceable against
CITY regardless of whether CITY's possessory interest in and to the
Amphitheater is claimed
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pursuant to its interest under the Lease Purchase Agreement, its fee
simple estate in the Amphitheater Site or otherwise.
(g) CITY agrees and covenants with TENANT that it will cooperate in
expediting and obtaining all necessary zoning classification changes or
variances, special use permits, amendments to ordinances, alcoholic
beverage permits, building permits, certificates of occupancy and other
licenses and permits relating to the construction and operation of the
Amphitheater; provided, however, nothing herein constitutes a waiver by
CITY of its governmental powers or authority or a guaranty by CITY that
such matters can be accomplished to TENANT's satisfaction.
(h) CITY hereby represents and warrants that use and operation of
the Amphitheater is exempt from the provisions of CITY's Noise Ordinance
codified as Part 12, Chapter 5 of the Raleigh City Code.
(i) Upon commencement of the term of this Agreement in accordance
with the provisions hereof, CITY hereby warrants and represents to TENANT
the quiet enjoyment and peaceful possession of the Amphitheater and the
Parking Facilities in accordance with the terms, conditions and provisions
contained in this Agreement.
15.2 Representations, Warranties and Covenants of Tenant
TENANT hereby unconditionally warrants, represents and covenants to CITY
as follows:
(a) TENANT (i) is a New York general partnership, duly organized and
validly existing under the laws of the State of New York and (ii) has all
requisite power and governmental certificates of authority, licenses,
permits, qualifications and documentation to own, lease and operate its
properties as now being conducted.
(b) The execution, delivery and performance by TENANT of this
Agreement (i) are within TENANT's powers and have been duly authorized by
TENANT's general partners, (ii) have received all (if any) requisite prior
governmental approval in order to be legally binding and enforceable in
accordance with its terms against TENANT and (iii) will not violate, be in
conflict with, result in a breach of or constitute a default under, any
legal requirement or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of TENANT's
assets.
(c) To the best of TENANT's knowledge, all information, reports,
papers and data given to CITY with respect to TENANT are accurate,
complete and correct in all material respects and
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do not omit any fact, the inclusion of which is necessary to prevent the
facts contained therein from being materially misleading.
(d) TENANT hereby covenants and agrees with CITY that it will take
all actions as may be necessary to fulfill TENANT's obligations to WAAC
under the Development Agreement.
(e) TENANT hereby agrees and covenants to recognize the rights and
privileges of CITY under this Agreement regardless of whether CITY's
possessory rights in and to the Amphitheater Site are claimed under the
Lease Purchase Agreement or under its fee simple interest in the
Amphitheater Site.
16.0 CONDITIONS
16.1 Condition to Tenant's Obligations
The obligations, liabilities and requirements imposed upon TENANT pursuant
to the terms of this Agreement are conditioned upon the following conditions
precedent having been first fully and finally fulfilled:
(a) CITY shall have provided satisfactory evidence to TENANT that
this Agreement has been duly executed, authorized and delivered and is
enforceable against CITY in accordance with its terms, and, if requested
by TENANT, CITY shall have caused a legal opinion to be delivered to
TENANT from its City Attorney acceptable to TENANT in which the City
Attorney opines that this Agreement has been duly executed, authorized and
delivered by CITY and is enforceable against CITY in accordance with its
terms.
(b) The Amphitheater shall have been constructed in accordance with
its plans and specifications and otherwise in the manner contemplated by
the Development Agreement and a Certificate of Occupancy shall have been
issued with respect to the Amphitheater.
(c) CITY shall not execute or deliver the Ground Lease or the Lease
Purchase Agreement, unless the following shall have first occurred:
(i) A Mutual Recognition Agreement as originally executed and
acknowledged by an authorized officer of WAAC has been delivered to
TENANT pursuant to which, among other things, WAAC (x) agrees to
recognize the rights of TENANT under this Agreement and to be bound
by all of the terms, conditions, provisions and agreements contained
in this Agreement should WAAC acquire a possessory interest in and
to the Amphitheater for any reason during the term of
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this Agreement and (y) warrants and represents to TENANT that it
owns a valid leasehold estate in and to the Property and
Amphitheater burdened only by the liens created by the Deed of Trust
and the subleasehold estate created pursuant to the Ground Lease.
(ii) A Mutual Recognition Agreement fully executed and
acknowledged by an authorized officer of Trustee has been delivered
to TENANT pursuant to which, among other things, Trustee (x) agrees
to recognize the rights of TENANT under this Agreement and to be
bound by all of the terms, conditions, provisions and agreements
contained in this Agreement should Trustee acquire a possessory
interest in and to the Amphitheater for any reason during the term
of this Agreement and (y) warrants and represents to TENANT that it
owns a valid and first lien on WAAC's leasehold estate in and to the
Amphitheater.
(iii) A Memorandum of Lease Agreement as originally executed
and acknowledged by an authorized officer of CITY as contemplated by
the provisions of Section 17.11 of this Agreement.
(iv) A title insurer reasonably acceptable to TENANT which is
authorized to issue title policies in the State of North Carolina
shall have issued to TENANT a policy of title insurance insuring
TENANT as the owner of a valid leasehold estate created pursuant to
this Agreement subject to no liens, encumbrances, or prior leasehold
estates which are not acceptable to TENANT and in a coverage amount
deemed acceptable by TENANT.
(d) All the representations and warranties made by CITY pursuant to
the terms of this Agreement shall be true and correct in all material
respects as of the commencement date of the term of this Agreement and all
of the covenants and agreements contained in this Agreement which are
required to be fulfilled as of the commencement date of the term of this
Agreement shall have been fulfilled in all material respects.
16.2 Condition of City's Obligations
The obligations, liabilities and requirements imposed upon CITY pursuant
to the terms of this Agreement are conditioned upon the following conditions
precedent having been first fully and finally fulfilled:
(a) TENANT shall have provided satisfactory evidence to CITY that
this Agreement has been duly executed and delivered and is enforceable
against TENANT in accordance with its terms,
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and, if requested by CITY, TENANT shall have caused a legal opinion to be
delivered to CITY from outside legal counsel acceptable to CITY in which
such legal counsel opines that this Agreement has been duly executed and
delivered by TENANT and is enforceable against TENANT in accordance with
its terms.
(b) All of the representations and warranties made by TENANT
pursuant to the terms of this Agreement shall be true and correct in all
material respects as of the commencement date of the term of this
Agreement and all of the covenants and agreements contained in this
Agreement which are required to be fulfilled as of the commencement date
of the term of this Agreement shall have been fulfilled in all material
respects.
17.0 GENERAL PROVISIONS
17.1 No Waiver of Breach
No failure by either CITY or TENANT to insist upon the strict performance
by the other of any covenant agreement, term or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof, shall
constitute a waiver of any such breach or of such covenant, agreement, term or
condition. No waiver of any breach shall affect or alter this Agreement, but
each and every covenant, condition, agreement, and term of this Agreement shall
continue in full force and effect with respect to any other than existing or
subsequent breach.
17.2 Nondiscrimination
In consideration of the execution of this Agreement, the parties hereto
for themselves, their agents, officials, employees and servants agree not to
discriminate in any manner on the basis of race, color, creed, national origin,
sex, age, handicap, or sexual orientation with reference to the subject matter
of this Agreement, no matter how remote. The parties further agree in all
respects to conform with the provisions and intent of City of Raleigh Ordinance
1969-889, as amended. This provision is hereby incorporated into this Agreement
for the benefit of the City of Raleigh and its residents, and may be enforced by
an action for specific performance, injunctive relief, or other remedy as by law
provided. The parties also hereby agree to conform with the anti-apartheid
restrictions and regulations as enacted by the Raleigh City Council.
17.3 Unavoidable Delay
If either party shall be delayed or prevented from the performance of any
act required by this Agreement by reason of Acts of God, strikes, lockouts,
labor troubles, inability to procure materials, restrictive governmental laws
or regulations or other cause, without fault and beyond the reasonable control
of the party obligated, performance of such act shall be excused for the period
of the delay, and the period for the performance of any such act shall be
extended for a period equivalent to
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the period of such delay; provided, however, nothing in this section shall
excuse TENANT from the prompt payment of any rentals to CITY required of TENANT.
17.4 Binding Effect
Each and all of the covenants, conditions and restrictions in this
Agreement shall inure to the benefit of and shall be binding upon the successors
in interest of CITY, and assignees, transferees, licensees, and other successors
in interest of TENANT.
17.5 Entire Agreement
This Agreement contains the entire understanding of the parties with
respect to the matters covered by this Agreement and no other agreement,
statement, or promise made by any party or to any employee, officer, or agent of
any party which is not contained in this Agreement shall be binding or valid.
This Agreement may be modified only by writing signed by both CITY and TENANT.
The CITY and TENANT hereby agree to meet each calendar year after the
conclusion of the Amphitheater season and prior to December 31 of each year, to
discuss the operation of the Amphitheater and any problems, and will reduce any
agreement to writing as an addendum to this Agreement; provided, however, the
provisions of this paragraph shall in no way imply that either party hereto is
under any compulsion to enter into any amendment to this Agreement unless it
freely, willingly and voluntarily enters into such amendment.
17.6 Partial Invalidity
If any term, condition or provision of this Agreement or the application
thereof to any person or circumstance shall to any extent be held invalid or
unenforceable by a court of competent jurisdiction, the other provisions of this
Agreement, or the application of such provisions to persons or circumstances
other than those to which it is held invalid or unenforceable, shall not be
affected thereby and each provision of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
17.7 Gender
In this Agreement, the masculine gender includes the feminine and
masculine, and the singular number includes plural, and the word "person"
includes corporation, partnership, firm or association wherever the context so
requires.
17.8 Captions
Captions of the sections of this Agreement are for convenience and
reference only, and the words contained therein shall in no way be held to
explain, modify, amplify, or aid in the interpretation or meaning of the
provisions of this Agreement.
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17.9 Notices
(a) All payments, sums, notices, demands or requests from one party
to another may be personally delivered or sent by mail, certified or
registered, return receipt requested, postage prepaid to the addresses
below, and shall be deemed to have been given at the time of personal
delivery or at the time of receipt.
(b) All notices, demands or requests from TENANT to CITY shall be
given to CITY at:
City of Raleigh
c/o City Manager
X.X. Xxx 000
000 Xxxx Xxxxxxx Xx.
Xxxxxxx, X.X. 00000
(c) All notices, demands or requests from CITY to TENANT shall be
given to TENANT at:
c/o PACE Entertainment Group, Inc.
000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
and
c/o Sony Music Entertainment Inc.
If by mail: X.X. Xxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
If by courier or personal delivery:
000 Xxxxx Xxxxxx
Sony Music Entertainment Xxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President,
Business Affairs and
Administration
with a copy to: Sony Music Entertainment Inc.
Law Department
Attn: Senior Vice President and
General Counsel
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17.10 Relevant Law
This Agreement shall be governed by North Carolina law. All actions
relating to this Agreement shall be instituted and litigated in state or federal
courts sitting in North Carolina.
17.11 Memorandum of Lease Agreement
Concurrently with the execution of this Agreement, at the election of
TENANT or at such later time as TENANT may request, CITY shall execute and
deliver to TENANT, for recording in the real property records of Wake County,
North Carolina, a Memorandum of this Agreement in such form and containing such
provisions (not inconsistent with this Agreement) as TENANT may specify. Such
memorandum shall include a legal description intended to describe the
Amphitheater Site. If such memorandum is recorded pursuant to the foregoing
provisions, and if for any reason TENANT's rights and obligations under this
Agreement are terminated, then TENANT shall execute such documents (including
recordable documents) as may be reasonably provided CITY for purposes of
establishing that this Agreement is no longer of any force or effect.
IN WITNESS WHEREOF, this Agreement has been executed in quadruplicate on
behalf of CITY and TENANT as of the date set forth next to their respective
signatures.
DATE: 1-14-91 CITY OF RALEIGH
ATTEST: By: /s/ [ILLEGIBLE]
-------------------------------------
City Manager
/s/ Xxxx X. Xxxxx
-------------------------
City Clerk & Treasurer
Approved as to Form
/s/ [ILLEGIBLE]
-------------------------
City Attorney
(SEAL)
DATE: 1-14-91 SONY MUSIC/PACE PARTNERSHIP, a
New York general partnership
ATTEST: By: PACE Concerts, Inc., a
Texas corporation and its
/s/ Xxxxxx X. Xxxxx general partner
-------------------------
ASST. SEC. By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx ---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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EXHIBIT A-1
BEGINNING at a point, a new iron pin lying along the eastern right-of-way
line of Sunnybrook Road and at its point of intersection with the north bank of
Walnut Creek according to a reference line, thence N 4(degrees) 15' 51" W 511.40
feet to a point; thence along a curve in a clockwise direction, said curve
having an arc length of 373.35 feet, a radius of 4000.40 feet, chord bearing N
1(degrees) 35' 26" W, chord distance of 373.21 feet to a point; thence N
1(degrees) 18' 18" E 170.86 feet to a point; thence departing from the eastern
right-of-way line of Sunnybrook Road N 89(degrees) 15' 24" E 304.82 feet to a
point; thence S 15(degrees) 00' 00" W 200.00 feet to a point; thence along a
curve in a counterclockwise direction having an arc of 1134.46 feet, radius of
500.00 feet, chord bearing S 50(degrees) 00' 00" E a chord distance of 906.31
feet to a point; thence N 65(degrees) 00' 00" E 203.89 feet to a point; thence S
19(degrees) 28' 31" E 270.75 feet to a point situated on the west bank of Pace's
branch; thence along the west bank of Pace's branch the following courses and
distances of a reference line: S 8(degrees) 03' 00" E 155.34 feet to a point;
thence S 46(degrees) 38' 32" E 138.78 feet to a point; thence S 29(degrees) 24'
37" W 128.24 feet to a point; thence S 26(degrees) 01' 14" E 57.12 feet to a
point; thence S 2(degrees) 47' 31" W 75.75 feet to a point, the intersection of
the west bank of Pace's branch and the north bank of Walnut Creek, according to
reference lines; thence along the north bank of Walnut Creek the following
courses and distances of a reference line: N 84(degrees) 41' 45" W 114.51 feet
to a point; thence S 81(degrees) 32' 30" W 88.76 feet to a point; thence S
25(degrees) 04' 57" E 142.06 feet to a point; thence S 40(degrees) 59' 48" W
85.84 feet to a point; thence S 58(degrees) 42' 14" W 238.37 feet to a point;
thence S 89(degrees) 19' 23" W 118.59 feet to a point; thence N 28(degrees) 25'
58" W 170.64 feet to a point; thence N 35(degrees) 42' 13" W 126.29 feet to a
point; thence N 57(degrees) 39' 28" W 262.50 feet to a point; thence N
50(degrees) 02' 31" W 283.66 feet to a point; thence N 38(degrees) 15' 20" W
121.46 feet to a point; thence N 69(degrees) 54' 35" W 73.87 feet to the point
and place of BEGINNING, containing 24.3836 acres according to a survey of the
north portion of Walnut Creek Park dated 13 December 1989, prepared by Murphy
Yelle Associates, Registered Land Surveyors.
EXHIBIT A-2
A certain tract or parcel of realty lying and being in the City of
Raleigh, Wake County, North Carolina, more fully described by metes and bounds
as follows, viz:
BEGINNING at an iron pipe found in the eastern right of way line of the
Xxxxx Xxxxxx Beltline at the south bank of Walnut Creek, said pipe being the
northernmost corner of the lands of the City of Raleigh Walnut Creek Park (south
property); thence with the meanders of Walnut Creek, defined herein as a
traverse line along the southern and western bank:
S 23 deg 07' 04" E, a distance of 159.69 feet to a point on the bank of the
creek;
S l7 deg 09' 17" E, a distance of 152.70 feet to a point on the bank of the
creek;
S 06 deg 04' 12" W, a distance of 126.04 feet to a point on the bank of the
creek;
S 35 deg 38' 50" E, a distance of 126.39 feet to a point on the bank of the
creek;
thence departing the creek and the following eight (8) new lines through said
lands of the City of Raleigh:
1) S 58 deg 42' 51" W, a distance of 429.82 feet to a new corner;
2) S 01 deg 03' 14" W, a distance of 390.68 feet to a new corner;
3) S 55 deg l4' 52" W, a distance of 340.32 feet to a new corner;
4) S 00 deg 50' 42" W, a distance of 148.63 feet to a new corner;
5) N 89 deg 39' 17" E, a distance of 483.24 feet to a new corner;
6) S 56 deg 22' 45" E, a distance of 1077.23 feet to a new corner;
7) S l4 deg 2l' 54" E, a distance of 540.11 feet to a new corner;
8) S 00 deg 03' 36" E, a distance of 740.45 feet to a new corner;
thence with the line of Green Valley Subdivision S 89 deg 56' 24" W, a distance
of 200.41 feet to an existing iron pipe;
thence with the line of Green Valley Subdivision S 89 deg 43' 39" W, a distance
of 85.83 feet to an existing iron pipe;
thence with the line of Green Valley Subdivision S 89 deg 57' 25" W, a distance
of 214.69 feet to an existing iron pipe, the northwest corner of Green Valley
Subdivision and the northeast corner of Garden Acres Subdivision;
thence with the line of Garden Acres N 89 deg 44' 19" W, a distance of 841.02
feet to an existing iron pipe, the southeast corner of lands of Xxxxx and Xxxxx
Xxxxxxxxxxxxx;
thence with the line of Xxxxxxxxxxxxx; N 11 deg 15' 48" E, a distance of 209.52
feet to an existing iron pipe;
thence with the line of Xxxxxxxxxxxxx; N 89 deg 44' 07" W, a distance of 143.88
feet to an existing iron pipe in the eastern right of way line of Xxxxxxxx Road
(50' R/W)
thence with Xxxxxxxx Road along the arc of a counter-clockwise circular curve,
the delta angle being 07 deg 10' 02", the radius length being 262.48 feet for an
arc distance of 32.83 feet, said curve defined by chord bearing S 14 deg 50' 49"
W, and chord distance of 32.81 feet to an existing iron pipe;
thence with the line of Xxxxxxxx Road S 11 deg l5' 48" W, a distance of 177.17
feet to an existing iron pipe, Xxxxxxxxxxxxx'x southwestern corner;
thence crossing Xxxxxxxx Road N 89 deg 37' 48" W, a distance of 56.63 feet to an
existing iron pipe;
thence with the line of Xxxxxxx X. Xxxxxx and with Xxxxxxxx X. Xxxxxxxx N 89 deg
53' 38" W, a distance of 168.47 feet to an existing iron pipe;
thence continuing with the line of Xxxxxx and Xxxxxxxx N 89 deg 52' 45" W, a
distance of 879.06 feet to an existing Iron pipe, Xxxxxxxx' northwest corner;
thence with the line of Xxxxxxxx S 15 deg 59' 31" W, a distance of 628.49 feet
to an existing iron pipe on the northern right of way line of Rock Quarry Road
(60' R/W);
thence with the line of Rock Quary Road N 65 deg 53' 25" W, a distance of 202.02
feet to an existing iron pipe, corner for Xxxxx X. Xxxxxx III;
thence with the line of Xxxxxx N 15 deg 59' 31" E, a distance of 628.49 feet to
an existing iron pipe;
thence continuing with the line of Xxxxxx N 22 deg 21' 28" E, a distance of
2289.30 feet to an existing iron pipe;
thence continuing with the line of Xxxxxx S 83 deg 49' 11" W, a distance of
911.18 feet to an existing iron pipe at the eastern right of way line of
Sunnybrook Road;
thence with Sunnybrook Road along the arc of a counter-clockwise circular curve,
the delta angle being 14 deg 32' 27" the radius length being 969.28 feet for an
arc distance of 245.99 feet, said curve defined by chord bearing N 43 deg 20'
31" E, and chord distance of 245.33 feet to an existing iron pipe at the
southeastern intersection of the rights of way of Sunnybrook Road and the
Xxxxx Xxxxxx Beltline;
thence with the Beltline along the arc of a counter-clockwise circular curve,
the delta angle being 13 deg 11' 43" the radius length being 3,990.72 feet for
an arc distance of 919.06 feet, said curve defined by chord bearing N 64 deg 24'
29" E, and chord distance of 917.03 feet to an NCDOT concrete monument found;
thence with the line of the Beltline N 58 deg 05' 28" E, a distance of 313.85
feet to a NCDOT concrete monument found;
thence with the line of the Beltline N 48 deg 01' 38" E, a distance of 209.72
feet to a NCDOT concrete monument found;
thence with the Beltline along the arc of a counter-clockwise circular curve,
the delta angle being 07 deg 14' 41", the radius length being 3,990.72 feet for
an arc distance of 504.60 feet, said curve defined by chord bearing N 46 deg 41'
36" E, and chord distance of 504.26 feet to an existing iron pipe, the point and
place of beginning and containing 120.058 acres, more or less.
This description was prepared January 11, 1991 by Murphy Yelle Associates,
Registered Land Surveyors.
EXHIBIT "B"
Plat of Property and Parking Facilities
Addendum A to Lease Agreement
between City of Raleigh and
Sony Music/Pace Partnership ("Lease")
The following paragraph is hereby inserted at the end of Section 5.8 of
the lease:
Notwithstanding anything to the contrary contained herein, CITY shall have
the right to use the Amphitheater, free of rent, at any time during a calendar
year which is not included within an Amphitheater Season; provided, however,
that any such use of the Amphitheater by CITY shall be conducted by CITY at its
sole cost and risk and without any requirement or obligation upon TENANT to
assist in the presentation of any events to which such use relates.