EX-10.18
LEASE AGREEMENT
by and between
WYANDOTTE COUNTY, KANSAS
and
WYANDOTTE COUNTY PARKS BOARD
as Landlord
and
SANDSTONE AMPHITHEATER JOINT VENTURE
as Tenant
DECEMBER 13, 1992
TABLE OF CONTENTS
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ARTICLE 1 - DEFINITIONS.......................................................1
1.1 Defined Terms....................................................1
ARTICLE 2 - PREMISES AND TERM OF LEASE........................................4
2.1 Lease............................................................4
2.2 Term of Agreement................................................4
ARTICLE 3 - RENT..............................................................4
3.1.a. Base Rent.....................................................5
3.1.b. Abatement of Base Rent........................................5
3.1.c. Method for Payment of Base Rent...............................6
3.2.a. Additional Rent...............................................6
3.2.b. Procedure for Payment of Additional Rent......................6
3.2.c. Landlord's Authority to Audit Ticket Revenue..................7
3.3 Interest on Unpaid Base Rent.....................................8
3.4 Interest on Percentage Rent......................................9
3.5 Tenant's Agreement to Maximize Ticket............................9
ARTICLE 4 - INDEMNIFICATION AND INSURANCE.....................................10
4.1 Indemnification..................................................10
4.2 Insurance........................................................12
4.3 Permissible Deductible...........................................14
4.4 Application of Insurance Proceeds................................14
4.5 Lien Upon Insurance Proceeds.....................................15
ARTICLE 5 - CONDEMNATION......................................................15
5.1.a. Termination of Lease..........................................15
5.1.b. Application of Condemnation Proceeds..........................16
5.1.c. Covenant to Execute Documents.................................16
5.1.d. Definition of Significant Portion.............................16
5.2 Effect of Election Not to Terminate..............................17
5.3 Effect of Partial Taking.........................................17
5.4 Landlord's Covenant..............................................17
ARTICLE 6 - Taxes.............................................................17
6.1 Payment of Taxes.................................................17
ARTICLE 7 - ASSIGNMENT, SUBLETTING, TRANSFER..................................18
7.1.a. Prohibition Against Changes in Ownership, Management
and Control of Tenant.........................................18
7.1.b. Assignment....................................................19
7.1.c. Indemnification for Violations of Article.....................20
7.2 Restrictions Regarding Transfer or Sublease.....................20
7.3 Landlord's Right to Collect Subrent.............................22
7.4 Tenant Assignment of Subleases..................................23
7.5 Attornment......................................................24
7.6 Sublessee Compliance............................................24
7.7 Tenant Obligation for Sublessee Acts or Omission................24
7.8 Freedom from Lien...............................................25
7.9 Leasehold Mortgages.............................................25
7.10 Restriction on Transfer to Prior Operator.......................25
ARTICLE 8 - CONSTRUCTION OF IMPROVEMENTS......................................26
8.1.a. Required Capital Improvements.................................26
8.1.b. Tenant's Use of Premises and/or Facilities....................26
8.1.c. Verification of Capital Improvements..........................27
8.2 Covenant to Keep Premises Free of Liens..........................27
ARTICLE 9 - CHANGES, ALTERATIONS AND ADDITIONS................................27
9.1 Approval of Changes, Alterations and Additions...................27
9.2 Signage..........................................................28
ARTICLE 10 - DISCHARGE OF LIENS; BONDS........................................29
10.1 Tenant's Covenant Not to Lien Interest of Landlord..............29
10.2 Discharge of Mechanic's Liens...................................30
10.3 Landlord's Duty to Discharge Liens..............................30
ARTICLE 11 - HOLDING OVER.....................................................31
11.1 Effect of Holding Over..........................................31
ARTICLE 12 - QUIET POSSESSION.................................................31
12.1 Covenant Granting Quiet Possession..............................31
ARTICLE 13 - REPRESENTATIONS BY LANDLORD......................................32
13.1 Landlord's Representations......................................32
13.2 Delivery of Possession of Premises..............................33
ARTICLE 14 - LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS...................34
14.1 Landlord's Authority to Perform Tenant Covenants................34
14.2 Payment as Additional Rent.....................................34
ARTICLE 15 - SEPARATE AND INDEPENDENT COVENANTS...............................35
15.1 Separate and Independent Covenants.............................35
ARTICLE 16 - EVENTS OF DEFAULT................................................35
16.1 Event of Default...............................................35
16.2 Notice of Monetary Default.....................................35
16.3 Landlord's Recourse Upon Default...............................36
16.4 Tenant's Obligation to Discharge Liens and Encumbrances........37
ARTICLE 17 - NAME OF FACILITY.................................................37
17.1 Authority to Change Names......................................37
ARTICLE 18 - NOTICES..........................................................37
18.1 Notices........................................................37
ARTICLE 19 - CERTIFICATES BY LANDLORD AND TENANT..............................39
19.1 Tenant Certificate.............................................39
19.2 Landlord Certificate...........................................39
ARTICLE 20 - SURRENDER OF POSSESSION..........................................40
20.1 Surrender of Premises..........................................40
ARTICLE 21 - SEASON TICKET HOLDERS FROM PAST SEASON...........................40
21.1 Tenant's Commitment to Prior Season Ticket Holders.............40
ARTICLE 22 -- MISCELLANEOUS...................................................40
22.1 Entire Agreement...............................................40
22.2 Headings and Captions..........................................41
22.3 Context of Terms...............................................41
22.4 Lease Controlled by Kansas Law.................................41
22.5 Prohibition Against Commissions and Finders Fee................41
22.6 Attornment.....................................................41
22.7 Time is of the Essence.........................................42
22.8 Landlord's Assignment of Interest..............................42
22.9 Recording of Memorandum of Lease...............................42
22.10 Tenant's Authority to Execute Lease............................42
22.11 Agreement Shall Not Constitute Creation of Partnership or
Joint Venture..................................................42
22.12 Effect of Invalidity of Provisions.............................43
22.13 Obligation to Refrain from Discrimination......................43
22.14 Conflict of Interest...........................................44
22.15 Tenant's Financial Statements..................................45
ARTICLE 23 - CANCELLATION RIGHTS..............................................45
23.1 Tenant Cancellation Rights.....................................45
ARTICLE 24 - RENEWAL OPTIONS..................................................46
24.1 Term and Adjustments in Rent During Option Period..............46
24.2 Exercise of Renewal Option.....................................46
ARTICLE 25 - LANDLORD'S OBLIGATIONS...........................................47
25.1 Initial Repair of Parking Lots.................................47
25.2 Improvement of Roads...........................................48
25.3 Payment of Real Estate Taxes...................................48
25.4 Landlord's Covenants to Perform Under Bond Obligation..........48
25.5 Indemnification for Warranties.................................48
25.6 Possession of Premises and Facility............................49
25.7 Landlord's Maintenance Obligation for Parking..................50
ARTICLE 26 - CONDITIONS PRECEDENT.............................................50
26.1 Conditions Precedent...........................................50
26.2 Right to Termination...........................................52
ARTICLE 27 - EXCLUSIVE RIGHTS.................................................53
27.1 Tenant's Exclusive Rights......................................53
ARTICLE 28 - COMMUNITY EVENTS.................................................53
28.1.a. Provision for Community Events...............................53
28.1.b. Approval of Community Events by Park Board...................54
28.1.c. Scheduling of Community Events...............................54
28.1.d. Rescheduling of Community Events.............................54
28.1.e. Parking for Renaissance Festival.............................55
28.1.f. Admission Fees for Community Events..........................55
28.2 Conditions for Usage for Community Events......................56
28.3 Parking end Concessions........................................57
28.4 Indemnity for Tenant...........................................57
28.5 Exclusion of Renaissance Festival From Definition
of Community Event.............................................57
ARTICLE 29 - TENANT'S OBLIGATIONS.............................................58
29.1 Maintenance of Premises and Facilities.........................58
29.2 Utilities......................................................58
ARTICLE 30 - PROHIBITED ACTS BY LANDLORD......................................58
30.1 Legislative, Administrative or Judicial Actions.................58
30.2 Validity of Lease...............................................59
30.3 Enforcement of Prohibition......................................59
ARTICLE 31 - TENANT'S REMOVAL RIGHTS..........................................60
31.1 Tenant's Removal Rights.........................................60
LEASE
THIS LEASE (the "Lease") is made and entered into this 13th day of
December, 1992, by and between the COUNTY OF WYANDOTTE, KANSAS, a political
subdivision of the State of Kansas and the WYANDOTTE COUNTY PARKS BOARD, a
statutorily created entity (collectively and independently, the "Landlord) and
SANDSTONE AMPHITHEATER JOINT VENTURE (the "Tenant"), a Missouri General
Partnership, exclusively consisting of Xxxxx Entertainment Services, Inc., a
Delaware corporation, authorized to do business in the State of Kansas and
Contemporary Investments of Kansas, Inc., a Kansas corporation.
WITNESSETH:
It is mutually covenanted and agreed by and between the parties that this
Lease is made upon the terms, covenants and conditions hereinafter set forth.
ARTICLE 1 - DEFINITIONS
1.1 Defined Terms. The terms defined in this Article 1 shall, for all
purposes of this Lease, have the following meanings:
a. Default shall mean any condition or event, action or failure to
act which constitutes or, after notice or lapse of time, or both, would
constitute an Event of Default.
b. Event of Default shall mean those events set forth in Section
16.1 of this Lease.
c. Facility shall mean the amphitheater located on the Premises and
all other improvements now or hereafter
located on the Premises and all fixtures and personal property now or hereafter
located on the Premises.
d. Fee Mortgage or Fee Mortgagee shell mean any mortgage, or, the
mortgagee thereof, or trust indenture which now or hereafter is a lien on the
fee title to the Premises, or any part thereof, as the same may be renewed,
modified, extended and/or consolidated from time to time.
e. Governmental Authority shall mean the United States of America,
the State of Kansas, the City of Xxxxxx Springs, Kansas, the Wyandotte County
Parks Board, the County of Wyandotte, Kansas, and any agency, department,
commission, board, bureau, instrumentality or political subdivision of any of
the foregoing, now existing or hereafter created, having jurisdiction over the
Premises, the Facility and/or any portion of either the Premises or the
Facility.
f. Hazardous Materials shall mean and include those elements,
wastes, materials, substances or compounds which are now or at any time
hereunder contained in the list of hazardous substances adopted by the United
States Environmental Protection Agency (the "EPA") or the list of toxic
pollutants designated by Congress or the EPA or defined by any statute, law,
ordinance, code, rule, regulation, order or decree of any Governmental Authority
regulating, relating to, or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material,
including, without
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limitation, asbestos, PCB's, radioactive substances, methane, volatile
hydrocarbons and industrial solvents.
g. Landlord shall collectively and independently mean the County of
Wyandotte, Kansas and the Wyandotte County Parks Board. Except where certain
rights, obligations or duties are specifically identified to the County of
Wyandotte, Kansas or the Wyandotte County Parks Board, each reference to
Landlord contained in this Agreement shall apply to both entities and any and
all rights, duties or obligations owing to or to be performed by Landlord shall
be delegated to the appropriate department or political subdivision or unit
constituting a portion thereof.
h. Permitted Exceptions shall mean the matters set forth in Exhibit
B annexed hereto and made a part hereof.
i. Premises shall mean the land described in Exhibit A annexed
hereto and made a part hereof.
j. Project shall mean the improvements set forth in Section 8.1 of
this Lease.
k. Ticket Agent shall mean any person or entity charged with the
obligation for receiving payment for tickets sold for all events held by Tenant
at the Facility.
l. Ticket Revenue shall mean the gross revenue collected from the
sale of tickets to events held at the Facility during the term of this Lease
less all sales tax and excise tax payable with respect to said tickets sold. The
term ticket revenue shall not include any portion of said revenue which is
refundable by Tenant and/or Ticket Agent to ticket purchasers.
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Ticket Revenue means only revenue generated from the sale of tickets for
admission to events and does not include revenue generated from any other
source, including but not limited to parking, concession or novelties. The term
ticket revenue shall only include ticket revenues that are the property of the
Tenant and shall not include ticket revenues that are property of the Landlord
or other persons or entities that may use the Facility as hereinafter provided.
1. Unavoidable Delays shall mean delays incurred by Tenant due to
strikes, lockouts, acts of God, enemy action, civil commotion, governmental
restrictions or preemption, fire or other casualty or other causes beyond the
reasonable control of Tenant (not including Tenant's insolvency or financial
condition or any action by Tenant or any affiliate of Tenant).
ARTICLE 2 - PREMISES AND TERM OF LEASE
2.1 Lease. Landlord, for and in consideration of the rents, covenants and
agreements hereinafter mentioned and hereby agreed to be paid, kept and
performed by Tenant, does lease to Tenant and Tenant does lease from Landlord
the Premises and the Facility, subject to the Permitted Exceptions to have and
to hold unto Tenant, its successors and assigns as provided for herein.
2.2 Term of Agreement. The Term of this Agreement shall commence on the
date first above written (hereinafter referred to as "Commencement Date") and
continue thereafter for a term of approximately ten (10) years (herein referred
to as the "Term") which shall expire on December 31, 2002 or on such
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earlier date upon which this Lease may be terminated as hereinafter provided
(hereinafter referred to as "Expiration Date" )
ARTICLE 3 - RENT
3.1.a. Base Rent. Tenant shall pay to Landlord, without offset or
deduction, except as provided below, and without notice or demand, the annual
sum of Two Hundred Thousand Dollars ($200,000.00) in five (5) equal monthly
installments of Forty Thousand Dollars ($40,000.00) each (herein referred to as
"Base Rent") in advance on or before the fifteenth (15th) day of every March,
April, May, June and July during the Term commencing on March 15, 1993 and
continuing thereafter through the Term of this Agreement.
3.1.b. Abatement of Base Rent. Notwithstanding any other provision herein,
if Tenant is not able to obtain an occupancy permit by May 28, 1993 due to
unavoidable delay, then the first year's base rent only shall be pro-rated as
follows: Total amount of base rent payable for the first year of the Lease shall
be equal to Two Hundred Thousand Dollars ($200,000.00) multiplied by a fraction,
the numerator of which is the days between the date on which the Facility
obtains an occupancy permit and September 30, 1993 and the denominator is the
number of days between May 28, 1993 and September 30, 1993. To the extent that
Tenant is entitled to abatement of rent as hereinabove calculated, such
abatement shall be paid Out of Landlord's percentage rent as herein provided. If
the Landlord's
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percentage rent is not sufficient to rebate to Tenant the amount to which it is
entitled, then Tenant shall be entitled to xxxxx the following year's base rent
until it has received the full benefit of the abatement.
3.1.c. Method for Payment of Base Rent. Base Rent shall be payable by
federal wire transfer of immediately available funds to a bank account or
accounts designated from time to time by Landlord, or by good checks drawn,
payable at the office of Landlord set forth in Article 18 or at such other place
as Landlord shall direct by notice to Tenant. All Rent (whether Base Rent and/or
Percentage Rent) shall be paid in currency which at the time of payment is legal
tender for public or private debts in the United States of America.
3.2.a. Additional Rent. In addition to the Base Rent, Tenant agrees to pay
Landlord percentage rent or additional rent (hereinafter referred to as
"Percentage Rent" or "Additional Rent") calculated in the manner described in
this paragraph. Percentage Rent shall be equal to three percent (31) of Ticket
Revenue on the first Four Million Dollars ($4,000,000.00) of Ticket Revenue for
a calendar year and shall be equal to five percent (5%) of all Ticket Revenue
for a calendar year that is in excess of Four Million Dollars ($4,000,000.00).
3.2.b. Procedure for Payment of Additional Rent. Tenant shall provide
Landlord with a calculation of Ticket Revenue for each event held by Tenant at
the Facility within seven (7) business days of settlement of each event. Said
calculation
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shall be accompanied by a check payable to Landlord for the Percentage Rent
payable with respect to said Ticket Revenue. Tenant shall use its best efforts
to include as a term of any existing ticket agent agreement or future agreement,
escrow instructions directing Ticket Agent to pay over to Landlord directly
Landlord's Percentage Rent. The provisions contained in the Ticket Agent
Agreement and/or escrow instruction letter shall be in a form acceptable to
Landlord acting reasonably.
3.2.c. Landlord's Authority to Audit Ticket Revenue. Landlord shall have
the right at Landlord's expense to audit Tenant's Ticket Revenue records on an
annual basis after November 15th of each year. Tenant's Ticket Revenue
calculations for a year shall be final and not subject to review if Landlord has
not commenced an audit by December 31st of that year. If an audit is commenced
before year end, Tenant's calculations of Ticket Revenue for any year shall be
conclusive unless Landlord files a claim with Tenant relating to such
calculations within sixty (60) days after year end. Tenant agrees to request the
Ticket Agent to permit Landlord to audit Ticket Agent's books regarding Tenant's
Ticket Revenues and will provide whatever authorization and waiver to permit
such audit. Tenant shall use reasonable business efforts to include as a term of
any existing Ticket Agent Agreement or future Agreement a provision authorizing
Landlord's audit of Ticket Agent's books regarding Tenant's Ticket Revenues.
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In the event of any disagreement between Landlord and Tenant over the
amount of Percentage Rent due, the parties shall meet and attempt in good faith
to resolve their disagreements provided that, in the event (i) the Ticket Agent
is not affiliated with Tenant, the Ticket Revenues as shown to have been
collected by the Ticket Agent as revealed by any audit as provided for herein
shall be conclusively deemed to be Ticket Revenues, or (ii) the Ticket Agent is
affiliated with the Tenant, then the Ticket Revenues as shown to have been
collected by the Ticket Agent shall be conclusively deemed Ticket Revenue if
either such amounts are calculated in the same manner as such amounts would have
been calculated by an unaffiliated Ticket Agent or Tenant can demonstrate that
such method is not fraudulent or improper in its accounting for gross revenues
from the sale of tickets. Any audit of Tenant's Ticket Revenue records or Ticket
Agent's records shall be conducted in a manner so as not to unduly disrupt the
business of Tenant or Ticket Agent. All of Tenant's records are extremely
confidential and Landlord and its auditors shall preserve the confidentiality of
all Tenant records and Ticket Agent records. The provisions requiring
confidentiality contained herein shall not prevent diclosure of the total amount
of percentage rent or its method of calculation which shall become public record
or Landlords disclosure of pursuant to court order or subpoena.
3.3 Interest on Unpaid Base Rent. Interest at one and one-half percent (1
1/2%) per month will be charged retroactively
8
to the fifteenth (15th) day of the month for Base Rant not paid by the
twenty-fifth (25th) day of the month. No failure by Landlord to insist upon the
strict performance by Tenant of its obligations to pay late charges shall
constitute a waiver by Landlord of its right to enforce the provisions of this
Section 3.3 in any instance thereafter occurring. The provisions of this Section
3.3 shall not be construed in any way to extend the grace periods or notice
periods provided for in Article 16.
3.4 Interest on Percentage Rent. All Percentage Rent shall be paid when
due and prior to delinquency. If paid subsequent to delinquency, interest at one
and one-half percent (1 1/2%) per month will be charged retroactively to the
date due.
3.5 Tenant's Agreement to Maximize Ticket Revenue. Tenant agrees to use
its best efforts to maximize ticket revenue and shall not in any manner engage
in the conduct of its business and operation of Facility in such a manner to
decrease or defeat the maximization of Percentage Rent payable as provided for
herein. Tenant shall only provide complimentary tickets or reduce the price of
tickets only in reliance upon prudent business judgment and in furtherance of
Tenant's obligation to maximize ticket revenue. Notwithstanding the foregoing,
Landlord acknowledges and understands that for good business reason, including,
but not limited to, building the image of the facility, assuring sufficient
attendance at any given event to prevent its cancellation, protecting the image
of the artist, satisfaction of artist requirements, developing community
9
awareness of the Facility, and developing goodwill for the Facility and the
community, Tenant may, from time to time, provide complimentary tickets or
reduced tickets shall be considered in the furtherance of Tenants obligation to
maximize Ticket Revenue.
ARTICLE 4 - INDEMNIFICATION AND INSURANCE
4.1 Indemnification.
(a) The Tenant shall indemnify and save the Landlord harmless from
and against any and all liabilities, suits, obligations, fines, damages,
penalties, claims, costs, charges and expenses, including property damage,
personal injury and wrongful death and further including, without limitation,
architects' and attorneys' fees and disbursements, which may be imposed upon or
incurred by or asserted against the Landlord or the Premises by reason of any of
the following occurring during the Term unless caused by the active negligence
or misconduct of the Landlord, its agents or employees or a failure to act by
the Landlord, its agents or employees when a duty to act is present:
(i) construction of the Facilities or any other work or thing done
in, on or about the Premises or any part thereof by the Tenant or its
agents;
(ii) any use, non-use, possession, occupation, alteration, repair,
condition, operation, maintenance or management of the Premises or any
nuisance made or suffered thereon which is the Tenant's responsibility
hereunder or any failure by the Tenant to keep the Premises in a safe
condition or any part thereof;
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(iii) any acts of the Tenant or any Sublessee or any of its or their
respective agents, contractors, servants, employees, licensees or
invitees;
(iv) any fire, accident, injury (including death) or damage to any
person or property occurring in, or about the Premises or any part
thereof;
(v) any encumbrance, lien or claim which may be alleged to have
arisen against or on the Premises or any part thereof or any of the assets
of, or funds appropriated to, the Landlord or any liability which may be
asserted against the Landlord with respect thereto to the extent arising,
in each such case, out of the acts of the Tenant, its contractors, agents,
sublessees;
(vi) any failure on the part of the Tenant to keep, observe, comply
with and perform any of the terms, covenants, agreements, provisions,
conditions or limitations contained in the Subleases or other contracts
and agreements affecting the Premises or any part thereof, on the Tenant's
part to be kept, observed or performed;
(vii) any tax, including any tax attributable to the execution,
delivery or recording of this Agreement, with respect to events occurring
during the term of this Agreement, except as otherwise described in this
Agreement.
The provisions hereof shall survive the expiration or earlier termination
of this Agreement.
(b) The Tenant will hold all goods, materials, furniture, fixtures,
equipment, machinery and other property whatsoever on the Premises at the sole
risk of the Tenant and save the Landlord harmless from any loss or damage
thereto by any cause unless caused by the active negligence of the Landlord, its
agents or employees or a failure to act by the Landlord, its agents or employees
when a duty to act is present.
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(c) The obligations of the Tenant under this Section shall not in
any way be affected by the absence in any case of covering insurance or by the
failure or refusal of any insurance carrier to perform any obligation on its
part to be performed under insurance policies affecting the Premises.
(d) If any claim, action or proceeding is made or brought against
the Landlord by reason of any event for which the Tenant is responsible under
this Section, then, upon demand by the Landlord, the Tenant, at its sole cost
and expense, shall resist or defend such claim, action or proceeding in the
Landlord's name, if necessary, by the attorneys for the Tenant's insurance
carrier (if such claim, action or proceeding is covered by insurance), otherwise
by such attorneys as the Landlord shall approve, which approval shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, the Landlord
may engage its own attorneys to defend it or to assist in its defense at the
Landlord's expense.
(e) Notwithstanding any other provision herein, section 4.1 (a)
shall not apply to any situation which are covered by any other provision in
this lease which requires the Landlord to indemnify the Tenant or which provides
the Tenant is not responsible for specific matters.
4.2 Insurance. Tenant shall, as reasonably requested by Landlord
throughout the Term, and at no cost to Landlord, keep or cause to be kept the
Premises and the Facility insured against the following in the following
amounts:
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(a) Casualty Insurance. Loss or damage by fire and those other
perils included from time to time in the so-called extended coverage insurance
endorsement ("All Risk") generally issued in the State of Kansas, in an amount
equal to the full replacement cost of that portion of the Facility that is
insurable from time to time existing on the Premises. During construction, such
insurance shall be completed value non-reporting builder's risk insurance
coverage; and
(b) Liability Insurance. Comprehensive public liability and
property damage insurance in a minimum amount equivalent to Five Million Dollars
($5,000,000.00) combined single limit coverage.
All insurance shall be with reputable insurance companies reasonably
satisfactory to Landlord and qualified to do business in Kansas. Such insurance
shall name Landlord as an additional insured for the full amount of the
insurance herein required and may name the holder of any leasehold interest on
the Premises granted by Tenant, by means of a standard mortgagee endorsement.
At all times during the Term, Tenant shall keep all required
insurance current and deliver or cause to be delivered to Landlord a
certificate(s) of insurance evidencing such coverages, naming the insured
parties and stating that such coverages may not be canceled, modified or altered
without at least thirty (30) days advance written notice to all insured. Should
Tenant fail to procure and maintain any such insurance
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coverages, Landlord may (without any obligation so to do), after giving Tenant
ten (10) days notice and Tenant failing to procure same, cause such insurance to
be procured and maintained at the cost of Tenant. Any cost incurred by Landlord
in so doing shall bear interest at the rate set forth in Section 3.4 hereof
until paid in full. The insurance required of Tenant hereunder shall be subject
to modification as reasonably requested by a lender of Tenant for the
construction of improvements on the Premises.
4.3 Permissible Deductible. All insurance provided for under this Article
may contain loss deductible clauses in such maximum amounts as Tenant shall
reasonably approve.
4.4 Application of Insurance Proceeds. If all or any part of the Project
shall be destroyed or damaged in whole or in part by fire or other casualty
(including any casualty for which insurance was not obtained or obtainable) of
any kind or nature, ordinary or extraordinary, foreseen or unforeseen, Tenant
shall give to Landlord prompt notice thereof, and (i) Tenant may cancel this
Lease (in which case all obligations to pay for the period of time after
cancellation of this Lease shall immediately cease), and Tenant shall receive a
portion of the insurance sufficient to repay the unamortized cost, calculated
using the straight line method, of all capital improvements that were not
separately scheduled for insurance coverage purposes it has made to the
Premises, and Landlord shall receive the balance of any such insurance proceeds,
which shall not include insurance proceeds paid with respect to scheduled
property. If such event
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occurs in the last year of the initial term or the last year of any renewal term
and provided Tenant does not elect to excercise it's option to renew as provided
herein, Landlord may elect to cancel this Lease: or (ii) Tenant may use the
insurance proceeds to repair, alter, restore, replace and rebuild (collectively,
"Restore"), the Facility, as nearly as practicable to the character of the
Facility existing immediately prior to such occurrence, and Landlord agrees to
release its interest and any claims of Landlord in any insurance proceeds to
permit Tenant to use said proceeds for Restoration. Each Restoration shall be
done in accordance with the provisions of this Lease.
4.5 Lien Upon Insurance Proceeds. Landlord warrants that no person now
holding a lien on the Premises has a right to or control over the insurance
proceeds from the Premises, and in the event that any such lienholder prevents
use of insurance proceeds in accordance with Section 4.4, Landlord shall pay to
Tenant a sum of money equal to the amount of insurance proceeds Tenant was
entitled to receive under Section 4.4.
ARTICLE 5 - CONDITION
5.1.a. Termination of Lease. If at any time during the Term, the whole or
any significant portion (hereinafter defined) of the Premises and/or the
Facility shall be taken (excluding a taking of the fee interest in the Premises
if after such taking Tenant's rights under this Lease are not affected) for any
public or quasi-public purpose by any lawful power or authority by the exercise
of the right of condemnation or eminent
15
domain or by agreement among Landlord, Tenant, and those authorized to exercise
such right, this Lease and the Term shall terminate and expire on the date of
such taking at Tenant's option and the Rent payable by Tenant hereunder shall be
apportioned as of the date of such taking.
5.1.b. Application of Condemnation Proceeds. If the whole or any portion
of the Premises and Facility shall be taken or condemned there shall first be
paid to Tenant from condemnation proceeds an amount equal to the sum of: (a) the
unamortized cost of all non-removable improvements Tenant has made to the
Premises, (b) plus the value of Tenant's remaining leasehold estate including
renewal periods, and the balance of the award shall be paid to Landlord.
5.1.c. Covenant to Execute Documents. Each of the parties shall execute
and deliver any and all documents that may be reasonably required in order to
facilitate collection by them of such awards in accordance with the provisions
of this Article 5.
5.1.d. Definition of Significant Portion. For purposes of this Article 5,
a "significant portion" of the Premises and/or the Facility shall be deemed to
mean such portion of the Premises and/or Facility as, when so taken or
condemned, would leave remaining a balance of the Premises and/or Facility
which, due either to the area so taken or condemned, or the location of the part
so taken or condemned in relation to the
16
part not so taken or condemned, significantly impairs the activities of the
Facility.
5.2 Effect of Election Not to Terminate. If Tenant elects not to exercise
the option to cancel this Lease pursuant to Section 5.1(a) hereof, this Lease
and the Term shall continue with an equitable abatement of the Rent and Tenant's
obligations hereunder and Tenant shall restore the improvements and Premises as
is reasonably practicable.
5.3 Effect of Partial Taking. If less than a significant portion of the
Premises and/or Facility are taken, this Lease and the Term shall continue with
no abatement of Rent.
5.4 Landlord's Covenant. Landlord agrees not to use the power of
condemnation to cancel this Lease.
ARTICLE 6 - TAXES
6.1 Payment of Taxes. Tenant shall pay or cause to be paid when due, all
personal property taxes to the extent applicable to the Facility, and Landlord
shall pay from the funds received for rent as provided for herein or such other
funds as are necessary, when due, all real property taxes and assessments
applicable to the Premises and/or the Facility. No provision contained in
Article 6.1 shall alter or amend Tenant's rent obligations as provided elsewhere
herein.
17
ARTICLE 7 - ASSIGNMENT, SUBLETTING, TRANSFER
Section 7.1.a. Prohibition Against Changes in Ownership, Management and
Control of Tenant.
The Tenant represents and agrees that its use of the Facilities and
its undertakings pursuant to this Agreement are, and will be, used for the
purpose of operation of the Premises and/or Facility. The Tenant further
recognizes that, in view of:
(i) the importance of the development of the Premises and/or
Facility to the general welfare of the community;
(ii) the substantial financing and other public aids that have been
made available by law and by the government for the purpose of making such
development possible;
(iii) the fact that a change in ownership or of the Tenant or of a
substantial part thereof, or any other act or transaction involving or
resulting in a significant change in ownership or with respect to the
identity of the parties in control of the Tenant or the degrees thereof,
is for practical purposes a transfer or disposition of the Premises; and
(iv) the property is not to be used for speculation, but only for
operation by the Tenant in accordance with this Agreement;
18
the qualifications and identity of the Tenant, and its partners and principals,
are of particular concern to the Landlord.
7.1.b. Assignment. This Agreement may not be assigned by the Tenant,
and none of the partners of the Tenant shall make a transfer of a
significant interest in the Tenant, other than the following permitted
transfers which shall remain subject to the restrictions contained in
Article 7.10:
(i) a direct or indirect transfer by one or more of the
partners of all or a portion of their respective interests in the
Tenant or an assignment by Tenant of this Lease to Xxxxxx Xxxxxxxxx
and/or Xxxxxx Xxxxxxxxx, or an entity controlled by Xxxxxx Xxxxxxxxx
and/or Xxxxx Xxxxxxxxx, or to an existing partner of the Tenant
provided that Xxxxxx Xxxxxxxxx and/or Xxxxx Xxxxxxxxx, or an entity
controlled by Xxxxxx Xxxxxxxxx and/or Xxxxx Xxxxxxxxx retains
majority voting control of the Transferee;
(ii) a direct or indirect transfer of Xxxxx Entertainment
Services, Inc.'s interest in the Tenant to any entity that is
controlled by or is affiliated with Xxxxx Entertainment Services,
Inc. either as a brother-sister entity or a parent or subsidiary
arrangement or other business arrangement in which a member of Xxxxx
Corporation's family of entities retains majority voting control;
19
(iii) a transfer of a partner's interest in the Tenant (or of
any outstanding stock or other equity interest in such partner) occasioned by
the death, incapacity, or adjudication of bankruptcy of such partner (or of a
shareholder or other owner of an equity interest in such partner);
(iv) a transfer permitted pursuant to Section 7.2.
7.2.
7.1.c. Indemnification for Violations of Article 7 The Tenant agrees to
and shall indemnify and hold the Landlord harmless from or against all claims,
demands and obligations asserted by or from any party claiming a right, interest
or ownership to this Agreement, through or with the Tenant and its partners
arising out of or in connection with relationships the Tenant or its partners
have entered into with such other party in violation of this Agreement.
7.2 Restrictions Regarding Transfer or Sublease. The Tenant shall not,
except as permitted by this Article 7, assign or attempt to assign this
Agreement, or any right herein, nor make any total or partial conveyance,
assignment, sublease or transfer in any other mode or form of the whole or any
part of the Premises, or of its parking rights under this Agreement, without
prior written approval of the Landlord which consent shall not be unreasonably
withheld. Such approval shall be given by the Landlord if the proposed conveyee,
assignee, sublessee or transferee has, in the reasonable opinion of the
Landlord, the financial capability and overall competence to operate the
20
conveyed, assigned, subleased or transferred obligations and Premises and/or
Facility. Approval by the Landlord of any conveyance, assignment, sublease or
transfer shall be conditioned upon such conveyee, assignee, sublessee or
transferee agreeing in writing to assume the rights and obligations thereby
conveyed, assigned, subleased or transferred and to keep and perform all
covenants, conditions and provisions of this Agreement which are applicable to
the rights acquired.
In the event of a conveyance, assignment or transfer of the Agreement by
the Tenant approved by the Landlord, the Tenant shall, effective on such
assignment or transfer, be released of any and all further liability with
respect to obligations arising or to be performed after the assignment or
transfer.
The Tenant shall only convey, assign, sublease or transfer the Premises
and/or Facility and the Tenant's rights as a whole and, except as described
herein, is not permitted to subdivide the Premises and/or Facility and its
rights for the duration of the Agreement without the prior approval of the
Landlord.
The limitations on transfer contained hereinabove shall not be deemed to
prevent the granting of easements or permits to facilitate the development of
the Premises, nor shall it prohibit granting any security interests expressly
described or permitted in this Agreement for financing the operation of the
Premises and/or the Facility, nor shall it prohibit subleasing space for
occupancy consistent with the uses and practices of facilities of
21
the types permitted by this Agreement, subject to the terms, covenants and
conditions of this Agreement and the rights of the Landlord as grantor.
Notwithstanding anything contained herein to the contrary, the Tenant
shall have the right to freely grant concessions rights, novelty rights, use
rights, leases, subleases, and permits for the use of portions of the Premises
and/or the Facility related uses, activities, and operations, specifically
including (without limitation) the sale of food and/or beverages, the
organization and control of parking, tickets and the sale of novelties,
merchandise, souvenirs, and programs. The term "Subleases" as used herein
includes grantees of such rights.
7.3. Landlord's Right to Collect Subrent. The Landlord, after default by
the Tenant and expiration of any applicable cure period with Tenant failing to
cure such default, may collect subrent and all other sums due under all
contracts, concession agreements, leases or subleases concerning the Premises
and/or the Facility (the "Subleases"), and apply the net amount collected to the
Base Rent and/or Percentage Rent or such other additional payments payable by
the Tenant hereunder, but no such collection shall be, or be deemed to be, a
waiver of any agreement, term, covenant or condition of this Agreement or the
acceptance by the Landlord of any Sublessees as the Tenant hereunder, or a
release of the Tenant from performance by the Tenant of its obligations under
this Agreement.
22
7.4. Tenant Assignment of Subleases. To secure the prompt and full payment
by the Tenant of the Base Rent and the Percentage Rent and the faithful
performance by the Tenant of all the other terms and conditions herein contained
on its part to be kept and performed, the Tenant hereby assigns, transfers and
sets over unto the Landlord, subject to any secured financing and the conditions
hereinafter set forth, all of the Tenant's right, title and interest in and to
all Subleases and hereby confers upon the Landlord, its agents and
representatives, a right of entry in, and sufficient possession of, the Premises
and the Facility to permit and insure the collection by the Landlord of the
rental and other sums payable under the Subleases, and further agrees that the
exercise of said right of entry and qualified possession by the Landlord shall
not constitute an eviction of the Tenant from the Premises and/or the Facility
and/or any portion of either and that should said right of entry and possession
be denied the Landlord, its agent or representative, the Landlord, in the
exercise of said right, may use all requisite force to gain and enjoy the same
without responsibility or liability to the Tenant, its servants, employees,
guests or invitees, or any person whomsoever; provided, however, that such
assignment shall become operative and effective only if (a) a default shall
occur and Tenant fails to timely cure: (b) this Agreement and the Term shall be
canceled or terminated pursuant to the terms, covenants and conditions hereof;
or (c) there occurs repossession under a dispossess
23
warrant or other re-entry or repossession by the Landlord under the provisions
hereof. From time to time upon the Landlord's demand, the Tenant shall promptly
deliver to the Landlord a schedule of all Subleases, setting forth the names of
all Sublessees.
7.5. Attornment. The Tenant covenants and agrees that all Subleases
affecting the Premises and/or the Facility shall provide that (a) they are
subject to This Agreement, (b) Tenant will use its best efforts to include a
provision that on the termination of this Agreement as a result of Tenants
Default, the Sublessees will attorn to, or enter into a direct lease on
identical terms with the Landlord, subject to the terms of Section 7.8 hereof,
and shall furnish at the Landlord's request confirmation from any Sublessee of
the existence of such provisions.
7.6. Sublessee Compliance. The Tenant shall cause the Sublessees to comply
with their obligations under their Subleases and shall diligently enforce all of
the rights of the Landlord in accordance with the terms thereof.
7.7. Tenant Obligation for Sublessee Acts or Omission. The fact that a
violation or breach of any of the terms, provisions or conditions of this
Agreement results from or is caused by an act or omission by any of the
Sublessees shall not relieve the Tenant of the Tenant's obligation to cure the
same. The Tenant shall take all necessary steps to prevent any such violation or
breach.
24
7.8. Freedom from Lien. The Landlord agrees that personal property and
trade fixtures of Sublessees shall remain the property of Sublessees, free from
any lien rights of the Landlord for debts or obligations under this Agreement.
Tenant will use its best efforts to inform the Landlord in writing of the
specific items to be brought upon the Premises which are to remain the property
of the Sublessee in question. The Landlord agrees to waive any lien or similar
rights to such property and to confirm such waiver in writing to any sublessee
upon request.
7.9 Leasehold Mortgages. Anything contained in this Lease to the contrary
notwithstanding, Tenant, without the consent of Landlord, shall have the right
at any time to (i) assign this Lease and any and all subleases of the Premises
to any mortgagee as collateral security for the obligation of Tenant under a
mortgage made in accordance with this Article 7, and (ii) enter into subleases
or licenses of portions of the Premises for actual use.
7.10 Restriction on Transfer to Prior Operator. Tenant and the respective
partners of Tenant covenant and agree that they shall at no time transfer,
assign, sell, lease, sublease or convey any interest in Tenant, the Premises
and/or Facility or its operation to any partner or principal of World
Entertainment Services, Kansas L.P. or any other prior operator or tenant of the
Premises and/or Facility.
25
ARTICLE 8 - CONSTRUCTION OF IMPROVEMENTS
8.1.a. Required Capital Improvements. Tenant has agreed prior to the
commencement and/or during the first season and provided Tenant is able to
obtain all necessary building permits on or before January 1, 1993 or such later
date to which Tenant consents to provide capital improvements (the "Project") to
the Premises and/or Facility that cost at least Two Million Dollars
($2,000,000.00). Up to $500,000.00 of the required capital improvements may
consist of the cost of furniture, fixtures and equipment for the Premises and/or
Facilities. No provision contained in this section shall in any manner restrict
Tenant from undertaking expenditures for capital improvements to the Premises
and/or Facility in excess of the cost of the required improvements. The actual
improvements to be made are subject to finalization of all architectural and
engineering plans with respect to the Facility.
8.1.b. Tenant's Use of Premises and/or Facility. Tenant will not make or
permit to be made any use of the Premises and/or the Facility which is forbidden
by law, ordinance or governmental regulation or which may be dangerous or which
may invalidate the insurance policies covering the Premises and/or the Facility
required to be maintained by Tenant hereunder. Tenant, without cost to Landlord,
shall cause the Premises and/or the Facility to comply at all times with laws,
regulations and ordinances applicable to the Premises, the improvements or
Tenant's use thereof from time to time; provided,
26
however, any violations of laws, regulations and ordinances applicable to the
Premises which occurred prior to the Commencement Date, shall be cured at
Landlord's cost and expense.
8.1.c. Verification of Capital Improvements. Tenant shall provide all such
documentation reasonably requested by Landlord in order to verify the cost and
nature of all improvements required or allowed pursuant to the provisions of
Article 8.1.a. All such documents and records shall be provided not later than
thirty (30) days after the commencement of the first season or thirty (30) days
after the completion of all capital improvements contemplated by Article 8.1.
a., whichever date is later.
8.2 Covenant to Keep Premises Free of Liens. The Premises and the assets
of Landlord shall be free and clear of all liens arising out of, or connected
with, the construction of the Project and the development of the Premises, other
than those incurred by Landlord, or prior owners and/or prior tenants, except
that the foregoing shall not modify Tenant's right to make a Mortgage in
accordance with the provisions of Article 7 hereof.
ARTICLE 9 - CHANGES, ALTERATIONS AND ADDITIONS
9.1 Approval of Changes, Alterations and Additions. Tenant has the right
to make those changes, additions and alterations to the Project, Facility and
Premises detailed on Exhibit "C", provided Tenant first submits to Landlord
final plans and specifications and such plans and specifications are
substantially consistent with Tenant's proposal attached hereto
27
as Exhibit "C and incorporated by this reference. Tenant shall also have the
right to make future changes, additions, improvements and alterations to the
Facility or Premises provided such changes, additions, improvements and/or
alterations shall be submitted to Landlord for reasonable review and approval,
and Landlord first approves such changes, additions, improvements and/or
alterations, such approval shall not be unreasonably withheld. Approval shall be
deemed to be granted thirty (30) days after the submission in writing of the
proposed changes, additions, improvements and alterations to the Facility and/or
the Premises if written objections and responses are not served upon Tenant with
said thirty (30) days. Further, no objections or responses shall be permitted if
the proposed changes, additions, improvements and/or alterations (i) increase
the value of the Facility and/or the Premises; and (ii) are consistent with the
Facility and its image as then in existence and are being made to maintain
and/or improve the Facility and/or Premises. Tenant shall at all times keep the
premises and assets of Landlord free of liens for labor and materials supplied
or claimed to have been supplied for capital improvements to the Premises and
Landlord's fee interest in the Premises shall in no way be encumbered.
9.2 Signange. Tenant shall have the right to use and make future changes,
additions, improvements and alterations to all existing signage for the Facility
(whether situated upon the Premises or otherwise situated) and shall further
have the right
28
to erect new or additional signage. All changes, additions, improvements and
alterations to existing signage or proposals for erecting new or additional
signage will be submitted to Landlord for reasonable review and approval, and
such approval shall not be unreasonably withheld. Approval shall be deemed to be
granted thirty (30) days after the submission in writing of the proposed
changes, additions, improvements and alterations, to the existing signage or
proposed new or additional signage, if written objections and responses are not
served upon Tenant within thirty (30) days. Further, no objections or responses
shall be permitted if the proposed changes or additions, improvements and
alterations of existing signage (i) increase the value of the Facility and/or
Premises; and (ii) are consistent with the Facility and its image as then in
existence and are being made to maintain and/or improve Facility and/or
Premises. Tenant shall at all times keep the Premises and assets of Landlord
free of liens for labor and material supplied or claimed to have been supplied
for capital improvements to the Premises and Landlord's fee interest in the
Premises shall in no way be encumbered.
ARTICLE 10 - DISCHARGE OF LIENS; BONDS
10.1 Tenant's Covenant Not to Lien Interest of Landlord. Tenant shall not
create or cause to be created, any lien, encumbrance or charge upon any assets
of Landlord or upon the estate, rights or interest of Landlord in the Premises
or any part thereof. Tenant shall have no power to do any act or make any
contract which may create or be the foundation for any lien,
29
mortgage or other encumbrance upon the estate or assets of Landlord, or of any
interest of Landlord in the Premises.
l0.2 Discharge of Mechanic's Liens. If any mechanic's, laborer's or
materialmen's lien at any time shall be filed against the Premises or any part
thereof, or against any assets of Landlord, arising from work performed for the
Premises, Project, Tenant or any other user of the Project by or on behalf of
Tenant, then Tenant, within thirty (30) days after actual notice of the filing
thereof, or such shorter period as may be required by any Mortgagee or Fee
Mortgagee, shall cause the same to be discharged by payment, deposit, bond,
order of court of competent jurisdiction or title insurance by a title insurer
chosen by Landlord at Landlord's sole discretion. If Tenant shall fail to cause
such lien to be discharged within the period aforesaid, and if such lien shall
continue for an additional ten (10) days after notice by Landlord to Tenant,
then, in addition to any other right or remedy, Landlord may, but shall not be
obligated to, discharge the same and charge Tenant for the same as Additional
Rent. Notwithstanding the foregoing provisions of this Section 10.2, Tenant
shall not be required to discharge any such lien if Tenant is in good faith
contesting the same and has furnished a cash deposit, an irrevocable letter of
credit, a surety bond, or title insurance as stated aforesaid in an amount
sufficient to pay such lien with interest and penalties.
10.3 Landlord's Duty to Discharge Liens. Landlord shall be responsible for
discharging any and all liens,
30
encumbrances or charges upon the Premises and/or the Facility created either by
Landlord or as the result of any work performed on or at the Premises or the
Facility prior to the date of this Lease.
ARTICLE 11 - HOLDING OVER
11.1 Effect of Holding Over. If Tenant retains possession of the Premises,
the Facility and/or any portion thereof after the termination or expiration of
the Term, as it may be extended, Tenant shall pay Landlord Base Rent in an
amount equal to the Base Rent payable hereunder multiplied by (one (1) plus two
(2) times the percentage of increase in the Consumer Price Index from the
Commencement Date to the commencement of such holding over) and this Lease shall
become a month-to-month tenancy, terminable in accordance with law. The Consumer
Price Index shall mean the Consumer Price Index published by the Bureau of Labor
Statistics, U.S. Department of Labor, all Urban Consumers, Kansas City Average,
1982-84 - 1000 Should publication of much index be discontinued, the parties
shall select a comparable index published by a recognized authority measuring
the value of the consumer dollar. In no event shall the Base Rent be reduced.
ARTICLE 12 - QUIET POSSESSION
12.1 Covenant Granting Quiet Possession. Landlord covenants and agrees
with Tenant that upon Tenant's observing and performing all of the terms,
covenants and conditions on Tenant's part to be observed and performed under
this Lease, Tenant shall
31
peaceably and quietly enjoy the Premises and the Facility throughout the Term,
as it may be extended, and without hindrance or molestation by anyone claiming
through or under Landlord. Tenant shall subordinate and attorn to all Fee
Mortgagees provided that said Fee Mortgagee enter into a non-disturbance
agreement with Tenant which shall state that if Tenant is not in Default under
this Lease and if such Fee Mortgagee shall become the fee simple owner of the
Premises, such Lender shall not disturb Tenant's use and quiet enjoyment of the
Premises and shall recognize Tenant's rights under this Lease on the condition
that Tenant shall recognize and attorn to such Fee Mortgagee or subsequent
purchaser as the owner of the Premises.
ARTICLE 13 - REPRESENTATIONS BY LANDLORD
13.1 Landlord's Representations. Landlord represents to Tenant that:
a. Water, sanitary and electric utilities are available for use at
the Facility and have sufficient capacity to serve a capacity crowd at the
Facility;
b. Landlord shall deliver to Tenant good and marketable leasehold
title to the Premises and/or Facility, subject to the Permitted Exceptions set
forth in Exhibit B attached hereto and incorporated herein by reference.
c. To the best of Landlord's actual knowledge, neither the Premises
or the Facility are currently and have never been subject to Hazardous
Materials, and there are no claims, litigation, administrative or other
proceeding, whether actual or
32
threatened regarding Hazardous Materials relating in any way to the Premises
and/or the Facility.
d. Landlord is not in default, and shall not be in default, under
any mortgage on the Premises and/or the Facility.
e. Landlord's governing body has approved his Lease and this Lease
is binding on Landlord and is enforceable in accordance with its terms
f. Tenant has good marketable leasehold title to the Premises.
g. The zoning for the Premises permits Tenant's contemplated use as
an amphitheater.
h. There are no conditions existing on or near the Premises that
would impair Tenant's contemplated use of the Premises as an amphitheater.
i. Landlord will have marketable title to all personal property
located on the Premises no later than May 15, 1993.
j. Landlord will perform all obligations necessary to keep the
Bonds, as more fully described hereinafter, in good standing and not in default
and to discharge all obligations created by such Bonds.
13.2 Delivery of Possession of Premises. Subject to Section 25.6, Landlord
will deliver possession of the Premises to Tenant on the Commencement Date.
Tenant may take physical possession of the Premises and Facility on the
Commencement Date
33
notwithstanding that Landlord has to obtain further orders from the prior
tenant's bankruptcy court as provided for in Section 25.6. Landlord agrees to
indemnify and hold harmless Tenant from any claim arising as the result of
Tenant taking physical possession of the Premises and Facility prior to Landlord
obtaining full rights to the Premises and the Facility.
ARTICLE 14 - LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
14.1 Landlord's Authority to Perform Tenant Covenants. If Tenant at any
time shall fail to perform any covenant or condition or requirement of this
Lease, then thirty (30) days after notice to Tenant of any Event of Default, if
Tenant is not then diligently working to cure said default, Landlord, without
waiving or releasing Tenant from any obligation of Tenant contained in this
Lease, may, but shall not be obligated to, cure said Event of Default and may
enter upon the Premises for such purpose and take all such action thereon as may
be necessary therefor.
14.2 Payment as Additional Rent. All sums paid by Landlord and all costs
and expenses incurred by Landlord in connection with the Landlord's performance
of any such obligation of Tenant, together with the interest thereon at the rate
set forth in Section 304 hereof, shall be paid by Tenant to Landlord on demand
as Additional Rent.
34
ARTICLE 15 - SEPARATE AND INDEPENDENT COVENANTS
15.1 Separate and Independent Covenants. The parties intend that the
obligations of Tenant hereunder shall be separate and independent covenants and
agreements and shall continue unaffected unless such obligations shall have been
modified or terminated pursuant to an express provision of this Lease.
ARTICLE 16 - EVENTS OF DEFAULT
16.1 Events of Default. Subject to the provision of Section 16.2
hereunder, the following shall severally be considered Events of Default under
this Lease:
a. If Tenant shall default in the payment of Base Rent and/or
Percentage Rent within ten (10) days of when due.
b. If any material warranty, representation or statement made or
furnished to Landlord by or on behalf of Tenant, or any guarantor of or surety
of Tenant, proves to have been false or untrue in any material respect when made
or furnished.
c. If there is a breach of any other term, covenant, or condition of
this Lease.
16.2 Notice of Monetary Default. Notwithstanding any other provision
hereof to the contrary, failure by Tenant to make any payment of any monetary
obligations under this Lease on the date such payment is due shall constitute an
Event of Default hereunder only upon the continuation of such failure for a
period of ten (10) days following the Landlord giving written notice to
35
Tenant that the payment was not received. Failure by Tenant to perform or
observe any other non-monetary covenant, term or provision of this Lease shall
constitute an Event of Default hereunder only upon the continuation of such
failure for a period of thirty (30) days following notice to Tenant by Landlord
of such failure to perform or observe, or, if such default is of a nature that
it is not susceptible to cure same within such thirty (30) day period, then
Tenant may have such longer period to effect a cure as is reasonable in the
circumstances, so long as Tenant is diligently attempting to effect such cure.
16.3 Landlord's Recourse Upon Default.
a. If an Event of Default shall occur, Landlord may elect to proceed
by judicial proceedings, either at law or in equity, to enforce performance or
observance by the Tenant of the applicable provisions of this Lease and/or to
recover damages for breach thereof.
b. In addition to Landlord's rights under Section 16.3(a), Landlord
may terminate this Lease and be entitled to recover, as damages, the amount
Landlord would receive if Tenant exercised its option to terminate this Lease.
No waiver of any Default by Tenant shall be implied from any omission by
Landlord to take any action on account of said Default, and no express waiver
shall affect any Default other than the Default specified in the express waiver
and then only for the time and to the extent therein stated. No failure of
Landlord to exercise any power given Landlord hereunder or to
36
insist upon strict compliance with any obligation hereunder and no customer
practice of the parties at variance with the terms hereof shall constitute a
waiver of Landlord's right to demand exact compliance with the terms hereof. The
provision of this Section 16.3 shall survive any termination of this Lease.
16.4 Tenant's Obligation to Discharge Liens and Encumbrances. Upon any
termination of this Lease, Tenant agrees to pay in full all liens and
encumbrances on the Premises incurred by Tenant.
ARTICLE 17 - NAME OF FACILITY
17.1 Authority to Change Names. Tenant shall have the right to select the
name for the Facility and to change said name from time to time, provided such
name is not offensive, and is in accordance with community standards. Tenant
agrees to advise Landlord in advance of any public notification of the change in
the name.
ARTICLE 18 - NOTICES
18.1 Notices. All notices or other communications required or permitted to
be given under this Lease shall be in writing and shall be given by personal
delivery against signed receipt or by registered or certified mail, return
receipt requested, postage prepaid:
37
a. If to Tenant:
Sandstone Amphitheater Joint Venture
c/o Contemporary Investments of Kansas, Inc.
One Landmark Place
0000 Xxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
with a copy to:
Xxxx X. Xxxxxx, Esq.
Riezman & Blitz, P.C.
000 Xxxxx Xxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
b. If to Landlord:
County of Wyandotte, Kansas
Wyandotte County Courthouse
000 Xxxxx 0xx Xxxxxx
Xxxxxx Xxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxxxx
and
Wyandotte County Parks Board
0000 Xxxx Xxxxx
Xxxxxx Xxxx, Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Executive Manager
with a copy to:
Xxxxxx X. Xxxxxxxx
XXXXX & XXXXXXXX, P.A.
Midland Bank of Lenexa - Ste. 220
00000 X. 00xx Xxxxxx
Xxxxxx, Xxxxxx 00000
Notices delivered by mail shall be deemed given on the third
business day following deposit in the United States mail, postage prepaid.
Either party may change its address for notice purposes by notice to the other
party given in accordance with the provisions of this paragraph.
38
ARTICLE 19 - CERTIFICATES BY LANDLORD AND TENANT
19.1 Tenant Certificate. At any time and from time-to-time upon not less
than twenty (20) days prior notice by Landlord, Tenant shall execute,
acknowledge and deliver to Landlord or any other party specified by Landlord, a
statement in writing certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is modified, is
in full force and effect and stating the modifications) and the date to which
each obligation constituting the Rent has been paid and stating whether or not
to the best knowledge of Tenant (a) there is a continuing Default by Landlord in
the performance or observance of any covenant, agreement or condition contained
in this Lease to be performed or observed by Landlord, or (b) there shall have
occurred any event which, with the giving of notice or passage of time or both,
would become such a Default, and, if so, specifying each such Default or
occurrence of which Tenant may have knowledge. This statement may be relied upon
by any Fee Mortgagee or prospective successor to Landlord's interest in this
Lease.
19.2 Landlord Certificate. Upon not less than twenty (20) days prior
notice by Tenant to Landlord, Landlord shall state the same as set forth in
Section 19.1 hereof. Such statement may be relied upon by any then existing or
prospective Mortgagee, assignee or purchaser of all or a portion of Tenant's
interest in this Lease.
39
ARTICLE 20 - SURRENDER OF POSSESSION
20.1 Surrender of Premises. Upon the expiration of the Term, as it may be
extended, Tenant shall surrender the Premises and all improvements thereon to
Landlord in good order, repair and condition, ordinary wear and tear and
casualty (if not required to Restore hereunder) excepted, and after paying all
encumbrances caused by Tenant on the Premises and/or the Facility, shall remove
from the improvements on the Premises all items of personal property located in
such improvements or on the Premises. Any such property remaining on the
Premises following expiration or termination of the Term, as it may be extended,
shall conclusively be deemed to have been abandoned and Landlord may dispose of
same without liability to Tenant or any other party.
ARTICLE 21 - SEASON TICKET HOLDERS FROM PAST SEASONS
21.1 Tenant's Commitment to Prior Season Ticket Holders. Tenant agrees to
provide those season ticket holders for the 1992 season with some form of credit
or accomodation in recognition of the loss occasioned by the prior season ticket
holders by the acts of the prior operators of the Premises and/or Facility and
Tenant agrees to advise Landlord of Tenant's provisions prior to announcement to
such season ticket holders.
ARTICLE 22 - MISCELLANEOUS
22.1 Entire Agreement. This Lease constitutes the entire agreement between
the parties with respect to the subject
40
matter hereof and may not be amended or modified except in writing signed by all
parties hereto.
22.2 Headings and Captions. Headings and captions are for convenience and
reference only.
22.3 Context of Terms. All terms used in this Lease shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the context
may require.
22.4 Lease Controlled by Kansas Law. This Lease shall be governed by and
enforced in accordance with the laws of the State of Kansas. The prevailing
party in any litigation to enforce this Lease shall in such litigation be
entitled to an award of the costs and expenses of such litigation, including
reasonable attorney's fees.
22.5 Prohibition Against Commissions and Finders Fee. Each of the parties
hereto warrants to the other that it has not obligated the other party for any
finder's, broker's or other agent's fees in connection with this Lease, and each
party shall indemnify and hold the other party harmless from and against any
claim or claims for a real estate brokerage commission or fee alleged to have
been incurred by the party giving such indemnity.
22.6 Attornment. If any purchaser at a foreclosure sale (including any Fee
Mortgagee by purchase or by deed in lieu of foreclosure) becomes the fee owner
of the Premises, Tenant will attorn to (provided it receives a non-disturbance
agreement) and recognize such entities becoming such owner for all purposes in
place of the Landlord named in this Lease and the new
41
purchaser shall have fee title subject to the terms of this Lease.
22.7 Time is of the Essence. Time is of the essence with respect to the
performance and observance of all the terms, covenants and conditions hereof by
Tenant and Landlord. 22.8 Landlord's Assignment of Interest. Landlord has the
right to transfer its interest in the Premises, and upon such transfer shall be
released from all obligations hereunder accruing after such transfer, and Tenant
shall attorn to the new owner of the Premises, provided the transferee assumes
in writing the obligations of Landlord.
22.9 Recording of Memorandum of Lease. This Lease shall not be recorded.
The parties shall execute and record a memorandum of this Lease in the form
attached hereto as Exhibit D.
22.10 Tenant's Authority to Execute Lease. Tenant represents to Landlord
that Tenant has the power and authority to execute and deliver this Lease and
that the execution of this Lease will not violate or constitute a default on the
part of Tenant under any agreement to which Tenant is a party or by which it is
bound.
22.11 Agreement Shall Not Constitute Creation of Partnership or Joint
Venture. This Lease shall not be construed to create a partnership or joint
venture between the parties, it being the intention of the parties only to
create a Landlord-Tenant relationship.
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22.12 Effect of Invalidity of Provisions. If any term or provision of this
Lease or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
22.13 Obligation to Refrain from Discrimination. There shall be no
discrimination against or segregation of any person, or group of persons, on
account of sex, marital status, race, color, creed, religion, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Premises and the Tenant itself or any person claiming under or
through it shall not establish or permit any such practice or practices of
discrimination, or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, sublicensees, sublessees, or
vender of the Premises or any portion thereof, and the Landlord shall be the
beneficiary of this provision and entitled to enforce it. The Tenant for itself
and its successors and assigns, agrees that in the construction and operation of
the improvements provided for in this Agreement, the following clause will be
required in all contracts, leases or subleases concerning the Premises: "Any
supplier, contractor or lessee in performing under this contract, shall not
discriminate
43
against any worker, employee or applicant, or any member of the public because
of race, creed, ancestry, color, religion, sex, marital status, or national
origin, nor otherwise commit an unfair employment practice. The supplier,
contractor or lessee will take affirmative action to ensure that applicants are
employed, and that employees are dealt with during employment without regard to
their race, creed, color, ancestry, religion, sex, marital status or national
origin. Such action shall include, but not be limited to the following:
employment, upgrading, demotion or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation;
and selection for training, including apprenticeship. The supplier, contractor
or lessee further agrees that this clause will be incorporated in all
subcontracts entered into with suppliers of materials or service, and all labor
organizations furnishing skilled, unskilled and union labor, or who may perform
any such labor or services in connection with this contract."
22.14 Conflict of Interest. No member, official or employee of the
Landlord shall have any personal interest, direct or indirect, in this
Agreement, nor shall any member, official or employee participate in any
decision relating to this Agreement which affects his or her personal interest
or the interest of any corporation, partnership or association in which he or
she is directly or indirectly interested. No member, official or employee of the
Landlord shall be entitled to receive or eligible
44
to receive any complimentary goods, services or accommodations from Tenant,
including but not limited to complimentary parking, complimentary tickets to
events conducted by Tenant, concessions, novelties or any such other or
additional accommodations.
22.15 Tenant's Financial Statements. Tenant shall provide within a
reasonable time after the close of its tax year, audited financial statements
for Xxxxx Entertainment Services, Inc. or any entity affiliated with Xxxxx
Entertainment Services, Inc., to which its interest may hereafter directly or
indirectly be transferred. Should the interest currently owned by Xxxxx
Entertainment Services, Inc. be transferred to, or assigned, pursuant to Article
7.1 b (i), then the remaining partners of Tenant shall thereafter provide
reviewed financial statements within a reasonable time after the close of their
taxable year.
ARTICLE 23 - CANCELLATION RIGHTS
23.1 Tenant Cancellation Rights. Tenant shall have the right to cancel
this Lease after the end of a season in any year by giving Landlord written
notice prior to June 1 of that year of its intention to cancel this Lease as of
December 31 of such year (the "Termination Date"). In consideration for Tenant's
early cancellation of this Lease: (a) Landlord shall receive all sums owing by
Tenant under the Lease through the Termination Date (including Percentage Rent
for that year), and (b) all tenant improvements to the Premises owned by Tenant
shall become the property of the Landlord as of the Termination Date, excluding
those items described on Exhibit E hereto.
45
ARTICLE 24 - RENEWAL OPTIONS
24.1 Term and Adjustments in Rent During Option Period. At the end of the
initial term of this Lease, Tenant shall have the option to renew this Lease for
an additional five (5) year term on the same terms and conditions as apply
during the initial term, except that the Base Rent for each renewal period shall
be re-calculated and payable in an amount equal to the Base Rent payable
hereunder multiplied by (one (1) plus the percentage of increase in the Consumer
Price Index from the Commencement Date to the commencement of the renewal
period, provided that the percentage increase in the CPI for any single year
shall in no event be considered to be greater than 3%). The Consumer Price Index
shall mean the Consumer Price Index published by the Bureau of Labor Statistics,
U.S. Department of Labor, all urban consumers, Kansas City Average, 1982 through
1984 = 100. Should publication of said Index be discontinued, the parties shall
select a comparable Index published by a recognized authority measuring the
value of the consumer dollar. In no event shall Base Rent be reduced.
The percentages used for calculating Percentage Rent during the initial
renewal period as set forth in Section 3.2.a. shall be changed to four percent
(4%) of the First Four Million Dollars ($4,000,000.00) of Ticket Revenue and six
percent (6%) of all Ticket Revenue in excess of Four Million Dollars ($4,000,
000.00). If Tenant exercises its initial five (5) year renewal option Tenant
shall have a second five (5) year renewal
46
option at the end of the first five (5) year renewal period on the same terms
and conditions as apply during the initial term, except for the recalculation of
Base Rent as provided above and that the percentages used for calculating
Percentage Rent during said renewal period as set forth in Section 3.2.a. shall
be changed to four percent (4%) of the first Four Million Dollars
($4,000,000.00) of Ticket Revenue and seven percent (7%) of all Ticket Revenue
in excess of Four Million Dollars ($4,000,000.00).
24.2 Exercise of Renewal Option. Tenant may exercise any renewal option by
sending Landlord written notice at least six (6) months prior to the
commencement of a renewal period that it elects to renew the Lease. If Landlord
has given Tenant written notice that Tenant needs to elect whether or not to
renew the Lease, at least six (6) but not more than nine (9) months before the
renewal period commences, then all renewal rights shall terminate as of six (6)
months prior to the commencement of the next renewal period if Tenant has not
sent written notice to Landlord by that date electing to renew the Lease.
ARTICLE 25- LANDLORD'S OBLIGATIONS
25.1 Initial Repair of Parking Lots. Landlord shall on a one time basis at
Landlord's expense repair and restore the parking lots on the Premises so that
they are in such a condition as would be achieved by performing the customary
level of annual parking lot maintenance upon the Premises. Barring the
occurrence of unforeseen acts of man or nature, it is contemplated that no
further repairs and maintenance shall be
47
necessary until the normal annual maintenance prior to the commencement of the
1994 season. Said work shall be completed prior to the commencement of the 1993
season at the Facility end Landlord's obligation shall be limited to a maximum
expense of $25,000.00.
25.2 Improvement of Roads. Prior to commencement of the 1993 season at the
Facility the Landlord will, on a one time basis, at its expense, complete the
road repair work more fully described on Exhibit F.
25.3 Payment of Real Estate Taxes. Landlord agrees to pay when due all
real estate taxes and assessments that are assessed against the Premises from
time to time.
25.4 Landlord's Covenants to Perform Under Bond Obligation. Landlord is
the obligor on certain bonds (the "Bonds") that are secured by a mortgage on the
Premises. Landlord represents and warrants to Tenant that said Bond issue is not
currently in default. Landlord agrees to perform all obligations under the Bond
documents and to make all payments when due with respect to the Bonds so that no
default occurs with respect to the Bonds during the term of this Lease. At
Tenant's request, Landlord shall supply Tenant with a copy of the Bond documents
and such information concerning the Bonds as Tenant may request.
25.5 Indemnification for Warranties. Landlord shall indemnify and hold
Tenant harmless with respect to any damage
48
suffered by Tenant if any representations or warranties made by Landlord in this
Lease are not correct or are breached.
25.6 Possession of Premises and Facility. Landlord is obligated to deliver
full, possession of the Premises and Facility to Tenant on or before January 1,
1993 and to obtain all orders from the bankruptcy court or otherwise as may be
needed to terminate the rights of all persons in the Premises and/or Facility
including, but not limited to, prior tenants and prior concession providers.
Tenant acknowledges that allegations have been made that prior operators and
prior concession provider of the Facility, namely, World Entertainment Services
Kansas, L.P., and Service America Corporation, have filed for bankruptcy and may
allege an interest of some kind or nature in the Premises and Facility. Landlord
shall forthwith instigate and prosecute to resolution any and all actions
necessary in order to remove any alleged interest of these entities in an
expeditious manner. If such full possession is not delivered by said deadline,
Tenant may at its option extend this deadline or cancel the Lease. In the event
Tenant cancels the Lease pursuant to this paragraph, Landlord shall reimburse
Tenant for the cost of all improvements made to the Facility and/or Premises.
Landlord warrants that except for the rights granted to Tenant under this Lease
and those disclosed herein, no person has any possession rights with respect to
the Facility or Premises or any parking, concession or license rights of any
kind or any right to any revenues from any activities on the Premises and
Facility. Landlord agrees to
49
indemnify and hold Tenant harmless with respect to any claim by any person that
they have any such rights.
25.7 Landlord's Maintenance Obligation for Parking Lots. Landlord's use of
the parking lots for community events will contribute to the wear and tear on
the parking lots, therefore, Landlord agrees to pay thirty percent (30%) of the
annual maintenance cost of the parking lots, provided that its share of parking
lot maintenance will not exceed $5,000.00 on a noncumulative annual basis. In
lieu of paying cash for said maintenance obligation Landlord may provide "In
Kind" services to the Premises and Facility as agreed to by Tenant to be valued
at their cost to Landlord.
ARTICLE 26 - CONDITIONS PRECEDENT
26.1 Conditions Precedent. If the following conditions precedent are not
satisfied on or before January 1, 1993, Tenant shall have the right to cancel
this Lease and upon Tenant sending written notice of such cancellation, this
Lease shall be deemed canceled and Tenant shall have no liability hereunder. The
conditions shall not be deemed satisfied or waived unless Tenant sends written
notice of such satisfaction or waiver. In the event the conditions are not
satisfied by January 1, 1993, Tenant may extend the deadline for satisfying said
conditions by notifying Landlord of such extension provided Tenant is working
diligently on satisfying said conditions. The conditions precedent to this Lease
being effective are:
50
a. This Lease must be fully signed by both parties.
b. Tenant's partners must approve the terms of this Lease.
c. Tenant shall receive a legal opinion from Landlord's attorney in
form and substance satisfactory to tenant that the Lease is binding on Landlord,
is enforceable in accordance with its terms and is not subject to any statute
limiting governmental leases to a one (1) year term.
d. Tenant shall receive a leasehold title insurance policy in form
and substance satisfactory to Tenant insuring that it has a valid ten (10) year
leasehold estate.
e. Tenant at Tenant's expense may conduct such engineering and other
studies of the Facility as Tenant deems appropriate and must be satisfied that
Tenant can renovate the Facility so that it is in a condition satisfactory to
Tenant at a cost not in excess of Three Million Dollars ($3,000,000.00).
f. Tenant must receive all construction permits needed to construct
all desired improvements.
g. There shall be no pending or threatened litigation except as
provided herein involving the Facility or this Lease that would affect Tenant's
ability to operate the Facility on the terms set forth in this Lease.
h. Tenant shall receive a certified copy of all resolutions adopted
by Landlord's governing body authorizing execution of this Lease.
51
i. If requested by Tenant it shall receive a non-disturbance
agreement from the person holding a mortgage on the Premises.
26.2 Right to Termination. If the following conditions precedent are no:
satisfied on or before May 15, 1993, Tenant shall have the right to cancel this
Lease and upon Tenant sending written notice of such cancellation, this Lease
shall be deemed canceled and Tenant shall have (i) no liability hereunder; and
(ii) Landlord shall return to Tenant all Base Rent paid by Tenant together with
an amount equal to the cost of Tenants improvements to the Facility. The
conditions shall not be deemed satisfied or waived unless Tenant sends written
notice of such satisfaction or waiver. In the event the conditions are not
satisfied by May 15, 1993, Tenant may extend the deadline for satisfying said
conditions by notifying Landlord of such extension provided Tenant is working
diligently on satisfying said conditions. The conditions precedent to this Lease
being effective are:
a. Tenant must receive all permits and licenses needed to operate
the Facility in a manner satisfactory to Tenant.
b. Tenant shall have been able to complete such renovation work on
the Facility as desired by Tenant prior to opening for business.
c. The conditions precedent described in Section 26.1 shall remain
satisfied and there shall have been no change in said conditions since when they
were previously approved.
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ARTICLE 27 - EXCLUSIVE RIGHTS
27.1 Tenant's Exclusive Rights. Tenant shall have the exclusive right to
all revenues from parking, the sale of merchandise, the sale of food and
beverages and from all other sources generated by the Premises and the Facility
during the term of this Lease, except that Landlord may retain ticket revenues
from a community event as described in Article 28 provided Landlord pays all
sales and excise taxes due on such Ticket Revenues. Tenant shall have sole
control over the Premises during the term of the Lease, and no person may charge
for parking or sell anything on the Premises at any time without the
authorization of Tenant.
ARTICLE 28 - COMMUNITY EVENTS
28.1.a. Provision for Community Events. Tenant in appreciation of
community support for the Facility has agreed to make the Facility available for
community events on the terms stated herein. Tenant agrees to make a minimum of
at least ten (10) days available per season for community events, provided that
as the months of June, July and August are the prime concert months and the
parties wish to maximize the concert opportunities in order for the Landlord to
maximize its opportunity for additional revenue, not more than two of such days
may fall within any single month during the months June, July or August. The
foregoing shall not prevent the parties from mutually agreeing to additional
days based on availability but is intended
53
to best enable the Wyandotte County Park Board ("the Park Board") to plan dates
for community events.
28.1.b. Approval of Community Events by Park Board. The Park Board shall
adopt rules and regulations for public use of the Facility consistent with this
Article 28. All applications for use of the Facility for community events shall
be screened by the Park Board before the Park Board forwards such applications
to Tenant for Tenant's approval. Such applications shall include a description
of the event, estimated attendance and the date desired.
28.1.c. Scheduling of Community Events. All events that receive
preliminary approval of the Parks Board after March 1 of any season shall be
immediately presented to Tenant for scheduling approval subject to the
availability of the Premises and/or Facility and the other restrictions provided
for herein. The Park Board will use its best efforts to request all community
event dates for a season by March 1st of that season.
28.1.d. Rescheduling of Community Events. Subject to the other provisions
herein, Tenant will advise Landlord in writing of the community events and dates
that have been approved by Tenant (the "Approved Date" ). In the event that
Tenant subsequently needs an Approved Date for a concert, Tenant may substitute
a new date for that community event (the "New Approved Date") ,provided that
Landlord receives notice of such change at least forty-five (45) days prior to
the Approved Date and at least forty-five (45) days prior to the New Approved
Date.
54
28.1.e. Parking for Renaissance Festival. Tenant further agrees to make
its parking lots available at no charge at any time after September 1st or the
Saturday of Labor Day Weekend, whichever date is earlier, and for six
consecutive weeks thereafter, for the use by the Renaissance Festival, provided
that all parkers shall be required to vacate the parking lots by 6:00 p.m. and
the parking lot shall be vacated not later than 7:15 p.m. The clearing of the
parking lots utilized by the Renaissance Festival will be achieved in such a
manner as not to unreasonably interfere with the rights of Tenant to provide for
the orderly ingress of all licensees, customers, and patrons of Tenant. Tenant
agrees to cooperate with Landlord and representatives of the Renaissance
Festival and Landlord agrees to cooperate with Tenant to cause and to be put
into effect and implemented on all days with overlapping presentations, a
traffic control plan with respect to the use of the Facility, if it is
determined that such a plan is necessary.
28.1.f. Admission Fees for Community Events. The Landlord may charge an
admission fee for an event only if the event is non-commercial in nature,
involving a non-profit organization, and non-commercial admission charges are
charged. Landlord shall pay all taxes applicable to ticket revenues collected
with respect to community events.
55
28.2 Conditions for Usage for Community Events. Landlord's use of the
Facility for community events is subject to the following terms and conditions:
a. Tenant may disapprove any application that is not for a
non-commercial community event, or that is not appropriate for the amphitheater,
or that would be competitive to Tenant's business, or that would otherwise
adversely affect the Facility or Tenant's business, or that would adversely
affect the casualty or liability insurance carried by Tenant with respect to the
Facility.
b. Landlord shall reimburse Tenant for any actual expenses incurred
by Tenant in connection with such event.
c. Landlord agrees to indemnify and hold Tenant harmless against any
claims for labor or materials supplied by any person with respect to the
community event.
d. Landlord agrees to reimburse Tenant for the cost of repairing the
Facility and replacing anything that has been stolen in the event that the
Facility is damaged during a community event or in the event property is stolen
from the Facility during a community event.
e. Landlord shall provide Tenant with satisfactory evidence that
Landlord has made adequate arrangements to staff the community event with
security and other necessary personnel.
56
28.3 Parking and Concessions. Tenant reserves the right but has no
obligation to provide and charge for parking and concessions services for
community events in which an admission charge is collected in a manner other
than that provided below. In the event that Tenant provides such services it
shall be entitled to retain all revenue generated by said services. Tenant shall
not be obligated to provide nor shall Tenant be entitled to charge for parking
at Community Events in which there is no charge for admission or the amount
charged for admission is primarily viewed as a charitable contribution (as an
illustration and in no manner a limitation, these events would include
graduation ceremonies for which no admission is charged and charitable fund
raising events for which the tickets necessary for admission are purchased for
$100 per couple).
28.4 Indemnity for Tenant. Landlord agrees to indemnify and hold Tenant
harmless against all liability claims for personal injury and property damage
occurring in connection with a community event at the Facility that was
requested by Landlord.
28.5 Exclusion of Renaissance Festival From Definition of Community Event.
The Renaissance Festival currently utilizes the parking lots located on the
Premises and no further usage of the Premises and/or Facility are contemplated
at this time. Provided that the contemplated usage is not substantially changed
or increased to more fully utilize the Premises and/or Facility,
57
the Renaissance Festival should not constitute a community event and shall not
be included as a community event days.
ARTICLE 29 - TENANT'S OBLIGATIONS
29.1 Maintenance of Premises and Facilities. Except as otherwise provided
herein, Tenant shall at its expense maintain in good repair all portions of the
Premises and/or Facility including but not limited to, all structural and
mechanical systems, including equipment and fixtures contained therein
(including replacement of all parts and components of said systems).
29.2 Utilities. Tenant shall pay for all utility services used on the
Premises.
ARTICLE 30 - PROHIBITED ACTS BY LANDLORD
30.1 Legislative, Administrative or Judicial Actions. Landlord agrees not
to take any legislative, administrative or judicial actions specifically
directed at Tenant or the Facility which would adversely affect: (a) Tenant's
operation of the Facility, (b) the cost and profitability of Tenant's operation
of the Facility, or (c) any of Tenant's rights under this Lease. Without
limiting the foregoing restrictions, Landlord agrees not to enact any
legislation or take any action that would cause this Lease to be terminated
(unless Tenant has not cured defaults under the Lease within applicable cure
periods), or which would create any new taxes on Tenant's revenues or operations
or which would increase any existing taxes applicable to Tenant, or which
58
would place any restrictions on Tenant's business operations which do not
currently exist.
30.2 Validity of Lease. Landlord agrees that this is a valid lease
notwithstanding that the term exceeds one (1) year. Landlord agrees that in the
event any court issues a final non-appealable order holding this Lease not to be
a valid and enforceable lease at the time of its execution, it will reimburse to
the Tenant the unamortized cost of all improvements Tenant has made to the
Premises and in addition pay Tenant liquidated damages in the amount of One
Million Dollars ($1,000,00.00).
30.3 Enforcement of Prohibition. If Landlord violates the restrictions in
this Lease including but not limited to the restrictions in Section 30.1, Tenant
may enforce those provisions by specific performance or may seek damages. In
addition, if Tenant is not able to enforce the restrictions, Tenant may force
Landlord to buy out Tenant's interest in this Lease by paying Tenant the
unamortized cost of the improvements Tenant has made to the Premises. If the
Lease is bought out, the Facility may not be used as an amphitheater during the
remaining term of the lease or renewal term if such periods shall have commenced
at the time of the buy out. If such buy out occurs during the final year of the
initial term or final year of the first renewal term and the time for the
exercise of the successive renewal term has not expired this prohibition shall
extend for such additional period if timely exercise of the option is tendered.
Nothing herein shall be construed as giving Landlord any right to buy out
59
Tenant's interest or as giving Landlord any right to violate the restrictions
this Lease.
ARTICLE 31 - TENANT'S REMOVAL RIGHTS
31.1 Tenant's Removal Rights. Subject to the next sentence, upon any
termination of this Lease for any reason, the Tenant shall have the right to
remove those items of property described on Exhibit E hereto. If this Lease
terminates before December 31, 2002, and if the cost to Tenant of all permanent,
non-removable improvements made by Tenant to the Premises and/or Facility is
less than Two Million Dollars ($2,000,000.00), then Tenant will on the
termination of this Lease deliver title to Landlord of sufficient sound,
lighting and video equipment located on the Premises so that Landlord is
retaining permanent improvements and personal property added to the Premises
and/or Facility by Tenant having an original cost to Tenant of Two Million
Dollars ($2,000,000.00)
IN WITNESS WHEREOF, the undersigned have caused this Lease to be signed,
sealed and delivered on their behalf as of the day and year first above written.
LANDLORD:
COUNTY OF WYANDOTTE, KANSAS
By /s/
--------------------------------
Title:
Date:
00
XXXXXXXXX XXXXXX XXXXX XXXXX
Xx /s/
--------------------------------
Title: President
Date: December 17, 1992
and
TENANT:
SANDSTONE AMPHITHEATER JOINT VENTURE,
A Kansas Joint Venture
By CONTEMPORARY INVESTMENTS OF
KANSAS, INC., its Partner
By /s/
-----------------------------
Title:
Date:
By XXXXX ENTERTAINMENT SERVICES,
INC., its Partner
By /s/
-----------------------------
Title: Vice President
Date:
61
