MUTUAL RECOGNITION AGREEMENT
[Walnut Creek Amphitheater]
STATE OF NORTH CAROLINA )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF WAKE )
THIS MUTUAL RECOGNITION AGREEMENT ("Agreement") is entered into effective
as of this 1st day of December, 1990 by and among (i) WALNUT CREEK AMPHITHEATER
FINANCING ASSISTANCE CORPORATION ("WAAC"), a non-profit organization duly
organized and existing under and by virtue of Chapter 55A of the General
Statutes of North Carolina, as amended, (ii) FIRST UNION NATIONAL BANK OF NORTH
CAROLINA ("Trustee"), a national banking association, (iii) CITY OF RALEIGH,
NORTH CAROLINA ("City"), a municipal corporation duly organized and existing
under and by virtue of the constitution and laws of the State of North Carolina
and (iv) SONY MUSIC/PACE PARTNERSHIP ("Pace"), a New York general partnership
whose sole general partners are Pace Concerts, Inc., a Texas corporation, and YM
Corp., a Delaware corporation. For and in consideration of the mutual covenants
and agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto do
hereby agree as follows:
1. Definitions. Unless the context otherwise requires, the capitalized
terms used herein shall, for all purposes of this Agreement, have the following
specified meanings:
(a) "Amphitheater" shall mean the outdoor entertainment facility to
be known as "Walnut Creek Amphitheater" which is to be constructed on the
Amphitheater Site pursuant to, and as contemplated by, the provisions of
the Lease Purchase Agreement. The term "Amphitheater" shall include within
its definition the Amphitheater Site and all buildings, fixtures and other
improvements which are constructed or placed on the Amphitheater Site as a
part of or related to such outdoor entertainment facility.
(b) "Amphitheater Site" shall mean (i) that certain tract of land
("Tract") located in Wake County, North Carolina and being more fully
described by metes and bounds in Exhibit "A-2" attached hereto and (ii)
certain parking facilities located on the Property and certain access ways
across the Property between and among the Tract, such parking facilities
and the public rights-of-way abutting the Property and the Tract as more
fully described in the Operating Lease.
(c) "Deed of Trust" shall mean that Leasehold Deed of Trust executed
effective of even date herewith by WAAC, pursuant to which WAAC's
leasehold interest in the Amphitheater created pursuant to the Ground
Lease has been mortgaged and assigned to Trustee in order to secure the
payment of WAAC's obligations
under the Trust Agreement and to secure the taxable certificates of
participation issued thereunder.
(d) "Ground Lease" shall mean that certain Ground Lease Agreement
executed effective of even date herewith by and between City and WAAC
pursuant to which, among other things, City has leased to WAAC the
Amphitheater Site in its currently unimproved state.
(e) "Lease Purchase Agreement" shall mean that certain
Lease/Purchase Agreement executed effective of even date herewith by and
between WAAC and City pursuant to which, among other things, WAAC agreed
to construct the Amphitheater on the Amphitheater Site and sublease the
completed Amphitheater to City.
(f) "Operating Lease" shall mean that certain Lease Agreement
executed effective of even date herewith by and between City and Pace
pursuant to which, among other things, City sub-subleased the
Amphitheater to Pace.
(g) "Property" shall mean that certain tract of land located in Wake
County, North Carolina and being more fully described by metes and bounds
in Exhibit "A-1" attached hereto.
(h) "Termination Event" shall mean the occurrence of either of the
following events:
(i) City's right to possession of the Amphitheater under the
terms and provisions of the Lease Purchase Agreement being
terminated for any reason whatsoever without the Lease Purchase
Agreement itself actually being terminated ("Event of Possession
Termination"); or
(ii) the Lease Purchase Agreement being terminated for any
reason whatsoever ("Event of Agreement Termination");
provided, however, if the Lease Purchase Agreement is terminated as a
result of City acquiring WAAC's interest in the Amphitheater pursuant to
the provisions of Sections 7.2(b) or 7.3 of the Lease Purchase Agreement,
then a "Termination Event" shall not be deemed to have occurred.
(i) "Trust Agreement" shall mean that certain Trust Agreement
executed effective of even date herewith by and between Trustee and WAAC
relating to the issuance of certain taxable certificates of participation
to investors for the purpose of raising money for funding the construction
and design costs of the Amphitheater.
2. [Intentionally Deleted].
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3. Pace's Rights Regarding Lease Purchase Agreement.
(a) WAAC and City shall each provide to Pace copies of all notices
sent to the other under or pursuant to the Lease Purchase Agreement. Any
notice given by City or WAAC to the other shall not be effective or
considered given for purposes of the Lease Purchase Agreement until it or
a copy thereof is also given to Pace.
(b) Upon the occurrence of a Termination Event, WAAC or Trustee
shall provide written notice thereof to Pace ("Termination Notice") within
thirty (30) days after the occurrence of the Termination Event. Following
the occurrence of a Termination Event, Pace or the then tenant under the
Operating Lease shall have the following rights:
(i) If the Termination Event occurs as the result of an Event
of Agreement Termination, then Pace or the then tenant under the
Operating Lease shall have the right to receive from WAAC a new
lease ("Substitute Lease") of the Amphitheater for the unexpired
balance of the term of the Lease Purchase Agreement (assuming for
purposes of this Paragraph 3(b)(i) that the Lease Purchase Agreement
has not been terminated) on the same terms and conditions set forth
in the Lease Purchase Agreement, including without limitation the
purchase option contained therein.
(ii) If the Termination Event occurs as the result of an Event
of Possession Termination, then Pace or the then tenant under the
Operating Lease shall have the right to enter into an amended and
reinstated Lease Purchase Agreement ("Reinstated Lease") with WAAC
in which Pace or the then tenant under the Operating Lease shall be
in all respects the "Lessee" (assuming for purposes of this
Paragraph 3(b)(ii) that the City's right to possession has not been
terminated) on the same terms and conditions set forth in the Lease
Purchase Agreement, including without limitation, the purchase
option contained therein.
As used herein, the term "New Lease" shall refer to any Substitute Lease
or any Reinstated Lease.
(c) In order to validly exercise its right to receive a New Lease
pursuant to the provisions of Paragraph 3 hereof, Pace or the then tenant
under the Operating Lease must provide WAAC and Trustee written notice
("New Lease Notice") of such election within sixty (60) days after receipt
of the Termination Notice; provided, however, WAAC shall not have any
obligation to execute a New Lease with Pace unless Pace satisfies each of
the following conditions within thirty (30) days after Pace gives WAAC the
New Lease Notice:
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(i) Any uncured event of default under the Lease Purchase
Agreement which can be cured by the payment of money is cured. For
purposes of the preceding sentence, all income collected or received
by or for the account of WAAC from the Amphitheater subsequent to
the date of a Termination Event, less all reasonable expenses
incurred by WAAC in managing and operating the Amphitheater, shall
be applied against rent which would at the time of the execution and
delivery of the New Lease be due under the Lease Purchase Agreement
but for such Termination Event.
(ii) Pace delivers evidence reasonably satisfactory to WAAC
and Trustee indicating that Pace was and continued to be the
"Tenant" under the Operating Lease until the occurrence of the
Termination Event and that the Operating Lease had not been validly
terminated prior to the occurrence of the Termination Event.
(d) Subject to satisfaction of the conditions contained in clauses
(i) and (ii) of Paragraph 3(c) hereof, WAAC shall enter into the New Lease
(x) with Pace within thirty (30) days after Pace gives WAAC the New Lease
Notice or (y) if Pace does not timely deliver a New Lease Notice, with a
Mortgagee which is entitled to a New Lease pursuant to the provisions of
Paragraph 3(f) hereof within thirty (30) days after such Mortgagee has
provided written notice to WAAC pursuant to Paragraph 3(f) hereof of its
election to obtain a New Lease directly. The New Lease shall contain the
same terms and conditions as are contained in the Lease Purchase Agreement
currently in force and effect (it being agreed that modifications to the
Lease Purchase Agreement made after the effective date hereof shall not be
enforceable against Pace), with (i) the minimum amount of modifications as
may be necessary to accommodate the fact that Pace is a corporation
instead of a municipality and (ii) such modifications as may be necessary
to incorporate into the New Lease provisions substantially similar to
those contained in Article 10.0 of the Operating Lease.
(e) Pace shall reimburse WAAC for all out-of-pocket expenses
incurred by WAAC (including reasonable attorney's fees) in performing its
obligations under this Paragraph 3.
(f) If, following the occurrence of a Termination Event, Pace or
the then tenant under the Operating Lease fails to exercise its right to
obtain a New Lease within sixty (60) days after receipt of the Termination
Notice, then each Mortgagee (as such term is defined in Section 10.2 of
the Operating Lease) which has provided notice to the other parties hereto
pursuant to the provisions of Paragraph 9(b) of this Agreement shall be
entitled to an additional thirty (30) day period thereafter, commencing
upon the expiration of said sixty (60) day period, to directly exercise
the rights created in favor of Pace pursuant
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to Paragraph 3(b) hereof by providing written notice of such election
within such additional thirty (30) day period. If more than one Mortgagee
makes the election referred to in the immediately preceding sentence, then
the one whose lien is superior in priority shall be entitled to the rights
associated with such election. If any Mortgagee should exercise its right
to directly obtain a New Lease pursuant to the foregoing provisions, then
the New Lease shall provide that such Mortgagee shall thereafter have a
one-time right to assign its leasehold interest under such New Lease to an
experienced operator of permanent outdoor entertainment facilities
substantially similar to the Amphitheater without the prior written
consent of WAAC or Trustee and that such Mortgagee shall be released from
its obligations under the New Lease upon completing such permitted
assignment if the experienced operator assignee expressly assumes all
obligations of the "Lessee" under the New Lease.
(g) Without limiting the generality of the provisions contained in
Paragraph 10 hereof, it is specifically understood, agreed and
acknowledged that the rights of Pace created pursuant to the provisions of
this Agreement shall be (x) enforceable by any assignee of Pace who
validly acquires its rights, titles and interests created under the
Operating Lease and any Mortgagee (as such term is defined in Section 10.2
of the Operating Lease) and (y) enforceable against any assignee of WAAC's
interest in the Lease Purchase Agreement or the Ground Lease including,
without limitation, Trustee.
(h) Any New Lease which may be entered into pursuant to the
provisions of this Paragraph 3 shall be of equal priority to the Lease
Purchase Agreement and shall in all events be prior and superior to any
liens, leases or other encumbrances created after the date hereof.
4. Trustee's Recognition and Non-disturbance Agreement.
(a) The holding of a foreclosure sale, conveyance in lieu of
foreclosure, or other exercise by Trustee of any of its rights under the
Deed of Trust or any other security documents executed in connection
therewith shall not (i) terminate the Lease Purchase Agreement or any New
Lease previously created pursuant to the provisions of Paragraph 3(b) of
this Agreement or (ii) terminate the continuing rights created in favor of
Pace pursuant to the provisions of Paragraph 3 hereof.
(b) Upon the acquisition of WAAC's interest in the Amphitheater by
any person or entity, including Trustee (herein any such person or entity,
including Trustee, being called "New Owner"), whether such acquisition
occurs through purchase at a foreclosure sale, conveyance in lieu of
foreclosure or any other exercise by Trustee of any of its rights under
the Deed of Trust or any other document executed in connection therewith,
New
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Owner shall be (i) subject to the rights created in favor of Pace pursuant
to the provisions of Paragraph 3 hereof and (ii) bound to the tenant under
the Lease Purchase Agreement or the tenant under any New Lease previously
created pursuant to the provisions of Paragraph 3 of this Agreement under
all of the terms, covenants and conditions of the Lease Purchase Agreement
or such New Lease; provided, however, that New Owner shall not be:
(i) liable for any act or omission of any prior lessor
(including WAAC);
(ii) subject to any offsets or defenses which the tenant under
the Lease Purchase Agreement or any such New Lease might have
against any prior lessor; or
(iii) bound by any amendment or modification of the Lease
Purchase Agreement or any such New Lease made without its consent
and written approval.
5. Attornment Agreement. Upon the acquisition of WAAC's interest in the
Amphitheater by a New Owner, whether such acquisition occurs through purchase at
a foreclosure sale, conveyance in lieu of foreclosure or any other exercise by
Trustee of any of its rights under the Deed of Trust or any other document
executed in connection therewith, the following provisions shall apply:
(a) If, at the time New Owner acquires WAAC's interest in the
Amphitheater, the Lease Purchase Agreement is still in full force and
effect, then City shall be deemed to have attorned (and does hereby
attorn) to the New Owner, as the new landlord under the Lease Purchase
Agreement; provided, however, that City shall be under no obligation to
pay rent to the New Owner until City receives written notice from New
Owner that it has succeeded to the interest of WAAC under the Lease
Purchase Agreement.
(b) If, at the time New Owner acquires WAAC's interest in the
Amphitheater, a New Lease has been previously entered into pursuant to the
provisions of Paragraph 3(b) of this Agreement, then Pace shall be deemed
to have attorned (and does hereby attorn) to New Owner, as the new
landlord under such New Lease; provided, however, that Pace shall be under
no obligation to pay rent to New Owner until Pace receives written notice
from New Owner that it has succeeded to the interest of WAAC under such
New Lease.
6. Agreements of City in Favor of Pace.
(a) City hereby specifically agrees and acknowledges that all of the
rights and privileges created under the Operating Lease in favor of Pace
shall be fully and completely recognized
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by City and enforceable against City regardless of whether the Ground
Lease is in existence or not and regardless of whether City's possessory
interest in and to the Amphitheater exists pursuant to (i) its rights
under the Lease Purchase Agreement, (ii) the purchase or other acquisition
of WAAC's interest in and to the Amphitheater under the Ground Lease,
(iii) its fee simple estate in the Amphitheater Site or (iv) any other
legal reason or means whatsoever.
(b) By way of clarification of the foregoing provisions, but not by
way of limitation, should (x) the Operating Lease ever terminate as a
result of City having lost its possessory interest in and to the
Amphitheater because of a termination of the Lease Purchase Agreement or
for any other reason, (y) Pace continue to use and operate the
Amphitheater continuously thereafter pursuant to a New Lease or otherwise
and (z) City subsequently obtain a possessory interest in and to the
Amphitheater as a result of a termination of the Ground Lease or for any
other reason, then City shall be obligated to reinstate the Operating
Lease in favor of Pace at the time of such acquisition of a possessory
interest in and to the Amphitheater by City for its then remaining term in
the same manner as if the Operating Lease had been in force and effect and
fully performed since termination thereof and as if it had been renewed
pursuant to its terms.
(c) If Pace or a Mortgagee should obtain a New Lease following a
Termination Event pursuant to the rights created in Paragraph 3 of this
Agreement, then upon reinstatement of the Operating Lease with City
pursuant to the provisions of Paragraph 6(b) hereof following termination
of the Ground Lease, the tenant under such reinstated Operating Lease
shall not be obligated to make payment of rental payments, renewal fees or
other amounts otherwise payable under such reinstated Operating Lease
until the balance of the Excess Payment Account (hereinafter defined) has
been reduced to zero, it being agreed that the tenant under such
reinstated Operating Lease shall receive a dollar for dollar credit
against its obligation to make rental payments, renewal fees and other
amounts payable under such reinstated Operating Lease to the extent of any
positive balance in the Excess Payment Account. As used herein the
following terms shall have the meanings indicated:
(i) "Excess Payment Account" shall mean a bookkeeping account
only which shall have an initial balance of zero. The balance of the
Excess Payment Account shall be increased on the last day of each
and every calendar year following the entering into of a New Lease
by (A) the Excess Payment Amount (hereinafter defined) for such
calendar year and (B) an amount equal to the product of (x) the
prime rate of interest then charged by large U.S. money center banks
and (y) the then balance of the Excess
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Payment Account as of the last day of such calendar year following
the increase made pursuant to clause (A) for such calendar year (if
any) and following the decrease made pursuant to clause (C) for such
calendar year (if any). The balance of the Excess Payment Account
shall be decreased (C) on the last day of each and every calendar
year following the entering into of a New Lease by the Deficit
Payment Amount (hereinafter defined) for such calendar year and (D)
on the due date of each rental payment under the Operating Lease
after it has been reinstated with City pursuant to the provisions of
Paragraph 6(b) hereof by an amount equal to such rental payment or
such portion of such rental payment which will have the effect of
reducing the balance of the Excess Payment Account to zero.
(ii) "Excess Payment Amount" shall mean, for any calendar
year, the amount by which all rental payments due during such
calendar year under a New Lease exceed (if any) the aggregate amount
of rental payments which would have been payable under the Operating
Lease during such calendar year if it had not been previously
terminated.
(iii) "Deficit Payment Amount" shall mean, for any calendar
year, the amount by which all rental payments due during such
calendar year under a New Lease are less than (if any) the aggregate
amount of rental payments which would have been payable under the
Operating Lease during such calendar year if it had not been
terminated.
(d) Without limiting the generality of the provisions of Paragraph
10 hereof, it is specifically understood, agreed and acknowledged that (i)
the obligations undertaken by City in this Paragraph 6 shall be
enforceable against any and all assignees of all or any portion of City's
interest in the Amphitheater and (ii) the rights created in favor of Pace
and Mortgagee pursuant to this Paragraph 6 shall inure to the benefit of
Pace, Mortgagee and their respective successors and assigns.
(e) Pace shall have the specific right and authority, as tenant
under the Operating Lease, to perform any obligation of City under the
Lease Purchase Agreement on behalf of City. Any payment made or sum
expended by Pace in fulfilling any obligation of City under the Lease
Purchase Agreement shall be credited against rental obligations due from
Pace to City under and pursuant to the terms of the Operating Lease.
(f) City hereby specifically covenants and agrees with Pace that it
will apply all rental amounts received by City under and pursuant to the
terms of Operating Lease from Pace, to the extent of amounts so received,
towards payment of its rental obligations under the Lease Purchase
Agreement.
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7. Satisfaction of Section 16.1(c)(i) and (ii) of the Operating Lease.
Pace hereby specifically acknowledges, agrees and stipulates that this
Agreement, upon full execution and delivery hereof by all of the parties hereto,
shall satisfy the conditions to Pace's obligations under the Operating Lease set
forth in clauses (i) and (ii) of Section 16.1(c) of the Operating Lease.
8. Representations, Warranties and Covenants.
(a) Trustee hereby unconditionally warrants and represents to the
other parties hereto as follows:
(i) Trustee is a national banking association, duly organized,
validly existing and in good standing.
(ii) The execution, delivery and performance by Trustee of
this Agreement are within Trustee's powers and have been duly
authorized.
See (iii) Attached
(b) WAAC hereby unconditionally warrants, represents and covenants
to the other parties hereto as follows:
(i) WAAC (x) is a non-profit corporation duly organized and
existing under and by virtue of Chapter 55A of the General Statutes
of North Carolina duly organized, validly existing and in good
standing and (y) has all requisite power and governmental
certificates of authority, licenses, permits, qualifications and
documentation to own, lease and operate its properties as now being
conducted.
(ii) The execution, delivery and performance by WAAC of this
Agreement (x) are within WAAC's powers and have been duly authorized
by WAAC's board of directors, (y) have received all (if any)
requisite prior governmental approval in order to be legally binding
and enforceable in accordance with its terms against WAAC and (z)
will not violate, be in conflict with, result in a breach of or
constitute a default under, any legal requirement or result in the
creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of WAAC's assets.
(iii) WAAC is currently the owner of a leasehold estate in and
to the Amphitheater created pursuant to the terms of the Ground
Lease, subject only to the liens created by the Deed of Trust and
the subleasehold estate in favor of City created pursuant to the
terms of the Lease Purchase Agreement.
(iv) WAAC shall not sell, transfer or assign its right, title
or interest in and to the Amphitheater in a
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manner which would be in violation of or otherwise in derogation of
the terms, provisions, agreements and conditions contained in this
Agreement.
(c) City hereby unconditionally warrants, represents and covenants
to the other parties hereto as follows:
(i) City (x) is a municipal corporation existing under and by
virtue of the constitution and laws of the State of North Carolina
duly organized, validly existing and in good standing under the laws
of the State of North Carolina and (y) has all requisite power and
governmental certificates of authority, licenses, permits,
qualifications and documentation to own, lease and operate its
properties as now being conducted.
(ii) The execution, delivery and performance by City of this
Agreement (x) are within City's powers and have been duly authorized
in accordance with City's charter, other documents or instruments
governing or controlling the existence and operation of City and all
laws, rules, regulations and statutes which affect or relate to the
governance, existence or operation of City, (y) have received all
requisite prior governmental approval in order to be legally binding
and enforceable in accordance with its terms and (z) will not
violate, be in conflict with, result in a breach of or constitute a
default under, any legal requirement or result in the creation or
imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of City's property or assets.
(iii) City is currently the owner of fee simple title to the
Amphitheater and Property, subject only to the leasehold estate
created in favor of WAAC pursuant to the terms of the Ground Lease.
(iv) City is currently the owner of a valid subleasehold
estate in and to the Amphitheater created pursuant to the terms of
the Lease Purchase Agreement, subject only to the sub-subleasehold
estate created in favor of Pace pursuant to the terms of the
Operating Lease.
(v) City shall not sell, transfer or assign any of its right,
title or interest in and to the Amphitheater in a manner which would
be in violation of or otherwise in derogation of the terms,
provisions, agreements and conditions contained in this Agreement.
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(d) Pace hereby unconditionally warrants, represents and covenants
to the other parties hereto as follows:
(i) Pace (x) is a New York general partnership, duly organized
and validly existing under the laws of the State of New York and (y)
has all requisite power and governmental certificates of authority,
licenses, permits, qualifications and documentation to own, lease
and operate its properties as now being conducted.
(ii) The execution, delivery and performance by Pace of this
Agreement (x) are within Pace's powers and have been duly authorized
by Pace's general partners, (y) have received all (if any) requisite
prior governmental approval in order to be legally binding and
enforceable in accordance with its terms against Pace and (z) will
not violate, be in conflict with, result in a breach of or
constitute a default under, any legal requirement or result in the
creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of Pace's assets.
(iii) Pace is currently the owner of a valid sub-subleasehold
estate in and to the Amphitheater created pursuant to the Operating
Lease.
(iv) Pace shall not sell, transfer or assign its right, title
and interest in and to the Amphitheater in a manner which would be
in violation of or otherwise in derogation of the terms, provisions,
agreements and conditions contained in this Agreement.
9. Notices.
(a) All notices or other communications hereunder between or among
any of the parties hereto shall be sufficiently given and shall be deemed
to have been received three business days after deposit in the United
States Mail in certified form, postage prepaid, addressed to the party to
receive such notice at the following addresses:
Trustee: First Union National Bank of
North Carolina
2 First Union Center - XXX-0
Xxxxxxxxx Xxxxx Xxxxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Corporate Trust Department
TRST-4
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WAAC: Walnut Creek Amphitheater Financing
Assistance Corporation
c/o City of Raleigh
Xxxx Xxxxxx Xxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: City Manager
City: City of Raleigh, North Carolina
X.X. Xxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: City Manager
Pace: c/o Pace Entertainment Group, Inc.
000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
and
c/o Sony Music Entertainment Inc.
If by mail: X.0. Xxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
If by courier or other personal delivery:
000 Xxxxx Xxxxxx
Sony Music Entertainment
Xxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President,
Business Affairs and
Administration
with copy to: Sony Music Entertainment Inc.
Law Department
Attention: Senior Vice President and
General Counsel
Any party hereto, by notice properly given hereunder, may designate a
different address to which subsequent notices, certificates or other
communications shall be sent.
(b) Should any Mortgagee (as such term is defined in Section 10.2 of
the Operating Lease) desire to receive copies of any and all notices which
any party hereto may give or is required to give to Pace hereunder, any
such Mortgagee may give the other parties hereto written notice thereof,
which notice shall include Mortgagee's address for notice. Thereafter, the
other parties to this Agreement shall, concurrently with the giving of any
notice to Pace hereunder, give like notice or a copy thereof to any such
Mortgagee.
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10. Covenants Running with Land and Binding Effect. The covenants and
agreements contained herein shall be deemed to run with all ownership interests
in and to the Amphitheater. This Agreement shall inure to the benefit of and
shall be binding upon all of the parties hereto and each of their respective
successors and assigns including, but without limitation, any (i) New Owner
which acquires an interest in the Amphitheater by, through or under any judicial
foreclosure or private sale proceedings pursuant to the Deed of Trust, or deed
in lieu of such foreclosure or proceedings, or otherwise and (ii) any assignee
of an ownership interest in and to the Amphitheater.
11. Severability. In the event any provision of this Agreement shall be
held invalid or unenforceable by a court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof.
12. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
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In witness whereof, this Agreement has been executed by the parties hereto
effective as of the date and year first above written.
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, a national
Attest: banking association
/s/ Xxxxx X. Xxx
------------------------------
Name: Xxxxx X. Xxx By: /s/ Xxxxx X. Xxxxx
Title: Assistant Secretary -------------------------------------
[SEAL] Name: Xxxxx X. Xxxxx
Title: Ass't Vice President
WALNUT CREEK AMPHITHEATER
FINANCING ASSISTANCE CORPORATION,
a North Carolina non-profit
Attest: corporation
/s/ [ILLEGIBLE]
------------------------------
Name: By: /s/ [ILLEGIBLE]
------------------------- -------------------------------------
Title: Secretary Name:
[SEAL] ------------------------------
Title: President
Attest: CITY OF RALEIGH, NORTH
CAROLINA,
/s/ Xxxx Xxxxx a municipal corporation
------------------------------
Name: Xxxx Xxxxx
Title: City Clerk
Approved as to form: By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxx X. XxXxxxxxx, Xx. City Manager
-------------------------------
City Attorney
[SEAL]
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SONY MUSIC/PACE PARTNERSHIP,
Attest: a New York general partnership
/s/ Xxxxxx X. Xxxxx By: PACE Concerts, Inc., a Texas
------------------------------- corporation, and its general
Name: Xxxxxx X. Xxxxx partner
Title: ASST SEC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ACKNOWLEDGMENT OF EXECUTION ON BEHALF OF TRUSTEE
STATE OF NORTH CAROLINA ss.
ss.
COUNTY OF Mecklenburg ss.
Before me, the undersigned, a Notary Public in and for said County and
State, on this 14th day of January, 1991 A.D. personally appeared Xxxxx X.
Xxxxx, being and to me known to be a Asst. vice president of First Union
National Bank, who being by me duly sworn, says that by authority duly given by,
and as the act of, said corporation, the foregoing and annexed Mutual
Recognition Agreement, dated as of December 1, 1990, was signed by him as said
vice president on behalf and in the name of First Union National Bank, and
personally appeared, Xxxxx X. Xxx, being and to me known to be an assistant
secretary of First Union National Bank, who, being by me duly sworn, says that
by authority duly given by said First Union National Bank he impressed the
corporate seal of First Union National Bank upon the foregoing and annexed
Mutual Recognition Agreement in execution thereof for and on behalf of First
Union National Bank and that he attested the same as said assistant secretary by
affixing his signature in attestation thereof, and said vice president and
assistant secretary further acknowledged that the foregoing and annexed Mutual
Recognition Agreement is the act and deed of the First Union National Bank.
Given under my hand and seal the day and year above stated.
[SEAL]
/a/ Xxxx Xxxxxx [ILLEGIBLE]
-----------------------------------------
Notary Public
My Commission Expires: Oct 8, 1991
-15-
ACKNOWLEDGMENT OF EXECUTION ON BEHALF OF WAAC
STATE OF NORTH CAROLINA ss.
ss.
COUNTY OF WAKE ss.
Before me, the undersigned, a Notary Public in and for said County and
State, on this 14th day of January, 1991 A.D. personally appeared Xxxxx X.
Xxxxxxx, being and to me known to be the President of Walnut Creek Amphitheater
Financing Assistance Corporation, who being by me duly sworn, says that by
authority duly given by, and as the act of, said corporation, the foregoing and
annexed Mutual Recognition Agreement, dated as of December 1, 1990, was signed
by him as said President on behalf and in the name of Walnut Creek Amphitheater
Financing Assistance Corporation, and personally appeared, Xxxxxx X. XxXxxxxxx,
being and to me known to be the Secretary of Walnut Creek Amphitheater Financing
Assistance Corporation, who, being by me duly sworn, says that by authority duly
given, by said Walnut Creek Amphitheater Financing Assistance Corporation he
impressed the corporate seal of Walnut Creek Amphitheater Financing Assistance
Corporation upon the foregoing and annexed Mutual Recognition Agreement in
execution thereof for and on behalf of Walnut Creek Amphitheater Financing
Assistance Corporation and that he attested the same as said Secretary by
affixing his signature in attestation thereof, and said President and Secretary
further acknowledged that the foregoing and annexed Mutual Recognition Agreement
is the act and deed of the Walnut Creek Amphitheater Financing Assistance
Corporation.
Given under my hand and seal the day and year above stated.
[SEAL]
XXXXX X. XXXX /s/ Xxxxx X. Xxxx
-----------------------------------------
NOTARY Notary Public
PUBLIC My Commission Expires: 9-1-91
WAKE CO. N.C.
-16-
ACKNOWLEDGMENT OF EXECUTION ON BEHALF OF CITY
STATE OF NORTH CAROLINA )
)
COUNTY OF WAKE )
Before me, the undersigned, a Notary Public in and for said County and
State, on this 14th day of January, 1991 A.D. personally appeared Xxxxx X.
Xxxxxxxx being and to me known to be the City Manager of the city of Raleigh,
North Carolina, who, being by me duly sworn, says that by authority duly given
by the City Council of said City, and as the act and deed, of said City Council,
the foregoing and annexed Mutual Recognition Agreement, dated as of December 1,
1990, was signed by him as said Mayor on behalf and in the name of said City,
and personally appeared, Xxxx Xxxxx, being and to me known to be the City Clerk
of said City who, being by me duly sworn, says that by authority duly given by
said City Council she impressed the corporate seal of said City upon the
foregoing and annexed Mutual Recognition Agreement in execution thereof for and
on behalf of said City and that she attested the same as said City Clerk by
affixing her signature therein in attestation thereof, and said Xxxxxxx Xxxxxx
and Xxxx Xxxxx further acknowledged that said Mutual Recognition Agreement is
the act and deed of said City.
Given under my hand and seal the day and year above stated.
[SEAL]
XXXXX X. XXXX /s/ Xxxxx X. Xxxx
-----------------------------------------
NOTARY Notary Public
PUBLIC My Commission Expires: 9-1-91
WAKE CO. N.C.
-17-
ACKNOWLEDGMENT OF EXECUTION ON BEHALF OF PACE
STATE OF NORTH CAROLINA )
)
COUNTY OF WAKE )
I, Xxxxx X. Xxxx, a Notary Public of Wake County, do hereby certify that
Xxxxxx X. Xxxxx personally came before me this day and acknowledged that he is
the Asst. Secretary of Pace Concerts, Inc., a corporation, and that by authority
duly given and as the act of the corporation, and as the act of SONY MUSIC/PACE
PARTNERSHIP, a New York general partnership (the "Partnership") in which the
corporation is a general partner (the "General Partner"), the foregoing
instrument was signed in its name by its Vice President, sealed with its
corporate seal and attested by himself as its Asst. Secretary.
Witness my hand and notarial seal, this 14th day of January, 1991.
[SEAL]
XXXXX X. XXXX /s/ Xxxxx X. Xxxx
-----------------------------------------
NOTARY Notary Public
PUBLIC
WAKE CO. N.C.
[NOTARY SEAL]
My Commission Expires:
9-1-91
-18-
EXHIBIT A-1
BEGINNING at a point, a new iron pin lying along the eastern right-of-way
line of Sunnybrook Road and at its point of intersection with the north bank of
Walnut Creek according to a reference line, thence N 4(degrees) 15' 51" W 511.40
feet to a point; thence along a curve in a clockwise direction, said curve
having an arc length of 373.35 feet, a radius of 4000.40 feet, chord bearing N
1(degrees) 35' 26" W, chord distance of 373.21 feet to a point; thence N
1(degrees) 18' 18" E 170.86 feet to a point; thence departing from the eastern
right-of-way line of Sunnybrook Road N 89(degrees) 15' 24" E 304.82 feet to a
point; thence S 15(degrees) 00' 00" W 200.00 feet to a point; thence along a
curve in a counterclockwise direction having an arc of 1134.46 feet, radius of
500.00 feet, chord bearing S 50(degrees) 00' 00" E a chord distance of 906.31
feet to a point; thence N 65(degrees) 00' 00" E 203.89 feet to a point; thence S
19(degrees) 28' 31" E 270.75 feet to a point situated on the west bank of Pace's
branch; thence along the west bank of Pace's branch the following courses and
distances of a reference line: S 8(degrees) 03' 00" E 155.34 feet to a point;
thence S 46(degrees) 38' 32" E 138.78 feet to a point; thence S 29(degrees) 24'
37" W 128.24 feet to a point; thence S 26(degrees) 01' 14" E 57.12 feet to a
point; thence S 2(degrees) 47' 31" W 75.75 feet to a point, the intersection of
the west bank of Pace's branch and the north bank of Walnut Creek, according to
reference lines; thence along the north bank of Walnut Creek the following
courses and distances of a reference line: N 84(degrees) 41' 45" W 114.51 feet
to a point; thence S 81(degrees) 32' 30" W 88.76 feet to a point; thence S
25(degrees) 04' 57" E 142.06 feet to a point; thence S 40(degrees) 59' 48" W
85.84 feet to a point; thence S 58(degrees) 42' 14" W 238.37 feet to a point;
thence S 89(degrees) 19' 23" W 118.59 feet to a point; thence N 28(degrees) 25'
58" W 170.64 feet to a point; thence N 35(degrees) 42' 13" W 126.29 feet to a
point; thence N 57(degrees) 39' 28" W 262.50 feet to a point; thence N
50(degrees) 02' 31" W 283.66 feet to a point; thence N 38(degrees) 15' 20" W
121.46 feet to a point; thence N 69(degrees) 54' 35" W 73.87 feet to the point
and place of BEGINNING, containing 24.3836 acres according to a survey of the
north portion of Walnut Creek Park dated 13 December 1989, prepared by Murphy
Yelle Associates, Registered Land Surveyors.
EXHIBIT A-2
A certain tract or parcel of realty lying and being in the City of
Raleigh, Wake County, North Carolina, more fully described by metes and bounds
as follows, viz:
BEGINNING at an iron pipe found in the eastern right of way line of the
Xxxxx Xxxxxx Beltline at the south bank of Walnut Creek, said pipe being the
northernmost corner of the lands of the City of Raleigh Walnut Creek Park (south
property); thence with the meanders of Walnut Creek, defined herein as a
traverse line along the southern and western bank:
S 23 deg 07' 04" E, a distance of 159.69 feet to a point on the bank of the
creek;
S l7 deg 09' 17" E, a distance of 152.70 feet to a point on the bank of the
creek;
S 06 deg 04' 12" W, a distance of 126.04 feet to a point on the bank of the
creek;
S 35 deg 38' 50" E, a distance of 126.39 feet to a point on the bank of the
creek;
thence departing the creek and the following eight (8) new lines through said
lands of the City of Raleigh:
1) S 58 deg 42' 51" W, a distance of 429.82 feet to a new corner;
2) S 01 deg 03' 14" W, a distance of 390.68 feet to a new corner;
3) S 55 deg l4' 52" W, a distance of 340.32 feet to a new corner;
4) S 00 deg 50' 42" W, a distance of 148.63 feet to a new corner;
5) N 89 deg 39' 17' E, a distance of 483.24 feet to a new corner;
6) S 56 deg 22' 45" E, a distance of 1077.23 feet to a new corner;
7) S l4 deg 2l' 54" E, a distance of 540.11 feet to a new corner;
8) S 00 deg 03' 36" E, a distance of 740.45 feet to a new corner;
thence with the line of Green Valley Subdivision S 89 deg 56' 24" W, a distance
of 200.41 feet to an existing iron pipe;
thence with the line of Green Valley Subdivision S 89 deg 43' 39" W, a distance
of 85.83 feet to an existing iron pipe;
thence with the line of Green Valley Subdivision S 89 deg 57' 25" W, a distance
of 214.69 feet to an existing iron pipe, the northwest corner of Green Valley
Subdivision and the northeast corner of Garden Acres Subdivision;
thence with the line of Garden Acres N 89 deg 44' 19" W, a distance of 841.02
feet to an existing iron pipe, the southeast corner of lands of Xxxxx and Xxxxx
Xxxxxxxxxxxxx;
thence with the line of Xxxxxxxxxxxxx; N 11 deg 15' 48" E, a distance of 209.52
feet to an existing iron pipe;
thence with the line of Xxxxxxxxxxxxx; N 89 deg 44' 07" W, a distance of 143.88
feet to an existing iron pipe in the eastern right of way line of Xxxxxxxx Road
(50' R/W);
thence with Xxxxxxxx Road along the arc of a counter-clockwise circular curve,
the delta angle being 07 deg 10' 02", the radius length being 262.48 feet for an
arc distance of 32.83 feet, said curve defined by chord bearing S 14 deg 50' 49"
W, and chord distance of 32.81 feet to an existing iron pipe;
thence with the line of Xxxxxxxx Road S 11 deg l5' 48" W, a distance of 177.17
feet to an existing iron pipe, Xxxxxxxxxxxxx'x southwestern corner;
thence crossing Xxxxxxxx Road N 89 deg 37' 48" w, a distance of 56.63 feet to an
existing iron pipe;
thence with the line of Xxxxxxx X. Xxxxxx and with Xxxxxxxx X. Xxxxxxxx N 89 deg
53' 38" W, a distance of 168.47 feet to an existing iron pipe;
thence continuing with the line of Xxxxxx and Xxxxxxxx N 89 deg 52' 45" W, a
distance of 879.06 feet to an existing iron pipe, Xxxxxxxx' northwest corner;
thence with the line of Xxxxxxxx S 15 deg 59' 31" W, a distance of 628.49 feet
to an existing iron pipe on the northern right of way line of Rock Quarry Road
(60' R/W);
thence with the line of Rock Quarry Road N 65 deg 53' 25" W, a distance of
202.02 feet to an existing iron pipe, corner for Xxxxx X. Xxxxxx III;
thence with the line of Xxxxxx N 15 deg 59' 31" E, a distance of 628.49 feet to
an existing iron pipe;
thence continuing with the line of Xxxxxx N 22 deg 21' 28" E, a distance of
2289.30 feet to an existing iron pipe;
thence continuing with the line of Xxxxxx S 83 deg 49' 11" W, a distance of
911.18 feet to an existing iron pipe at the eastern right of way line of
Sunnybrook Road;
thence with Sunnybrook Road along the arc of a counter-clockwise circular curve,
the delta angle being 14 deg 32' 27" the radius length being 969.28 feet for an
arc distance of 245.99 feet, said curve defined by chord bearing N 43 deg 20'
31" E, and chord distance of 245.33 feet to an existing iron pipe at the
southeastern intersection of the rights of way of Sunnybrook Road and the
Xxxxx Xxxxxx Beltline;
thence with the Beltline along the arc of a counter-clockwise circular curve,
the delta angle being 13 deg 11' 43" the radius length being 3,990.72 feet for
an arc distance of 919.06 feet, said curve defined by chord bearing N 64 deg 24'
29" E, and chord distance of 917.03 feet to an NCDOT concrete monument found;
thence with the line of the Beltline N 58 deg 05' 28" E, a distance of 313.85
feet to a NCDOT concrete monument found;
thence with the line of the Beltline N 48 deg 01' 38" E, a distance of 209.72
feet to a NCDOT concrete monument found;
thence with the Beltline along the arc of a counter-clockwise circular curve,
the delta angle being 07 deg 14' 41", the radius length being 3,990.72 feet for
an arc distance of 504.60 feet, said curve defined by chord bearing N 46 deg 41'
36" E, and chord distance of 504.26 feet to an existing iron pipe, the point and
place of beginning and containing 120.058 acres, more or less.
This description was prepared January 11, 1991 by Murphy Yelle Associates,
Registered Land Surveyors.
