LEASE AGREEMENT
Between
CROSSROADS PROPERTIES, INCORPORATED
Landlord
and
PACE ENTERTAINMENT GROUP, INC.
Tenant
TABLE OF CONTENTS
Page
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Section 1. GRANT AND TERM 1
A. Property 1
B. Easements 1
C. Initial Term 2
D. Permitted Encumbrances 3
E. Renewal Option 5
F. Quiet Enjoyment 5
G. Right of Special Termination 5
Section 2. USE, RESTRICTIONS ON LANDLORD, LANDLORD COOPERATION 8
A. Tenant's Use of Property 8
B. Tenant's Exclusive Use 8
C. Restrictions on Landlord 8
D. Landlord Cooperation 8
Section 3. RENT 9
A. Minimum Rent 9
B. Percentage Rent 10
C. Tenant's Duty to Keep Records 12
D. Additional Rental 12
E. Fixed Rental 13
F. Payment of Rental 13
Section 4. TENANT IMPROVEMENTS 13
A. Amphitheater and Parking Area 13
B. Tenant to Complete Construction 13
C. Improvements 13
D. Alterations and New Construction 14
E. Protection of Property 14
X. Xxxx 14
G. Liens 14
H. Removal of Property 15
I. Government Grants 15
Section 5. LANDLORD'S WORK 15
A. Landlord's Obligation 15
B. Plans 16
C. Excess Costs 16
Section 6. PARKING 16
Section 7. TAXES AND OTHER IMPOSITIONS 16
A. Taxes Based Upon the Property 16
B. Taxes Arising with Respect to Business 17
C. Tax Contest 17
Section 8. GENERAL REQUIREMENTS UPON TENANT 17
A. Compliance with Laws 17
B. Repair 17
C. Utilities 17
D. Costs and Expenses 18
E. Corporate Box 18
Section 9. INSURANCE AND INDEMNIFICATION 18
A. Liability Insurance 18
B. Property Insurance 19
C. Builder's Risk Insurance 19
D. Other Insurance 19
E. Policies 20
F. Named Insured; Adjustment of Losses 20
G. Indemnity of Landlord 21
Section 10. CASUALTY AND CONDEMNATION 21
A. Casualty 21
B. Insurance Proceeds 22
C. Condemnation 23
Section 11. MORTGAGES 24
A. Tenant's Right to Encumber 24
B. Mortgage Protection 25
C. No Merger 28
D. Limitation on Personal Liability of
Mortgagee Parties 00
X. Xxxxxx of Landlord's Lien 28
F. Mortgagee Benefitted 29
Section 12. DEFAULT 29
A. Interest Conditional 29
B. Events of Default by Tenant 29
C. Remedies of Landlord 31
D. Events of Default by Landlord 31
E. Remedies of Tenant 33
Section 13. TENANT FIRST REFUSAL AND CONSULTATION RIGHTS 34
A. Tenant's Right 34
B. Procedure 34
Section 14. TENANT CONCESSIONS, SUBLETTING AND ASSIGNMENT 36
A. Concessions, Subletting and Assignments 36
B. Other Assignments by Tenant 36
Section 15. LANDLORD'S REPRESENTATIONS, WARRANTIES AND COVENANTS 37
A. Organization 37
B. Warranty of Title 37
C. Binding Obligation 37
D. Landlord's Work 37
E. Hazardous Wastes 37
Section 16. TENANT'S REPRESENTATIONS, WARRANTIES AND COVENANTS 39
A. Organization 39
B. Binding Obligation 39
C. Pittsburgh Symphony 39
D. Tenant's Improvements 39
E. Taxes and Assessments 39
F. Repairs 39
G. Waste and Nuisance 39
H. Zoning 40
I. Hazardous Material 40
Section 17. CESSATION OF OPERATIONS 40
Section 18. MISCELLANEOUS 40
A. Waiver 40
B. No Benefits to Others 40
C. Entire Agreement 40
D. Force Majeure 40
E. Notices; Approvals and Consents 41
F. Captions and Section Numbers 42
G. Construction of Language 42
H. Broker's Commission. 42
I. Interest 43
J. Persons Indemnified 43
K. Governing Law 43
L. Venue. 43
M. Rights Are Cumulative 43
N. Saving Clause 43
0. Attorney's Fees 43
P. Injunctive Relief 43
Q. "Affiliate" Defined 44
R. Estoppel Certificate 44
S. Confidentiality 44
T. Lease Intended 44
Section 19. NON-DISCRIMINATION. 45
Section 20. SUCCESSORS AND ASSIGNS 45
Section 21. RECORDING OF LEASE 45
Section 22. MULTIPLE COUNTERPARTS 45
Section 23. LETTER OF CREDIT OR GUARANTY 45
A. Letter of Credit 45
B. Guaranty 46
C. Delivery of Letter of Credit or Guaranty 46
EXHIBIT "A" -- Description of _______ Acre Tract
EXHIBIT "B" -- Description of Leased Easements
EXHIBIT "C" -- Description of Landlord's Lands
EXHIBIT "D" -- Description of Easement Areas
EXHIBIT "E" -- Permitted Encumbrances
EXHIBIT "F" -- Rates for Landlord's Work
EXHIBIT "G" -- Form of Memorandum of Lease
EXHIBIT "H" -- Form of Letter of Credit
EXHIBIT "I" -- Form of Landlord's Certification for Letter of Credit
EXHIBIT "J" -- Form of Guaranty Agreement
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is executed as of _____________, 1989 (the
"Effective Date") between CROSSROADS PROPERTIES, INCORPORATED ("Landlord") and
PACE ENTERTAINMENT GROUP, INC. ("Tenant")
In consideration of the mutual covenants and agreements herein contained
and with the intent to be legally bound hereby, the parties hereto agree as
follows:
Section 1. GRANT AND TERM
A. Property. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, subject to the terms and conditions set forth herein, all of
Landlord's right, title and interest in and to (i) that certain tract of land
("______ Acre Tract") consisting of approximately three hundred (_______) acres,
located at the southwest intersection of U.S. Route 22 and Pennsylvania Route 18
in Hanover Township, Washington County, Pennsylvania, the _______ Acre Tract
being described in Exhibit "A" attached hereto and made a part hereof for all
purposes, (ii) those certain tracts of land ("Leased Easements") consisting of
approximately _______________ (___) acres in the aggregate, being described in
Exhibit "B" attached hereto and made a part hereof for all purposes, and (iii)
any and all improvements currently located on the _______ Acre Tract and Leased
Easements ("Existing Improvements"), the _______ Acre Tract and the Leased
Easements being sometimes hereinafter referred to as the "Land", the Land,
Existing Improvements and Improvements (defined in Subsection 4.C below) being
sometimes hereinafter collectively referred to as the "Property", the Land being
out of tracts of land owned by Landlord and described in Exhibit "C" attached
hereto and made a part hereof for all purposes, and containing approximately
_____ acres ("Landlord's Lands").
B. Easements.
(i) Upon and subject to the terms and conditions contained in this
Lease, Landlord agrees to grant unto Xxxx of Pennsylvania, and/or Peoples
Natural Gas Company, and/or West Penn Power Company, and/or Pennsylvania
American Water Company, their successors and assigns, the easements ("Third
Party Easements") over and across portions of Landlord's Lands ("Easement
Areas"), the Easement Areas being more particularly described in Exhibit "D"
attached hereto and made a part hereof for all purposes, for the benefit of Xxxx
of Pennsylvania, and/or Peoples Natural Gas Company, and/or West Penn Power
Company, and/or Pennsylvania American Water Company, and/or Tenant, their
respective successors and assigns, and/or for the benefit of all sublessees,
licensees, invitees, guests and occupants of the Property or any portion or
portions thereof, including any and all persons or entities
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providing utility services to the Property, in, over, through, beneath and
across Landlord's Lands, for the following purposes, and any of them, to-wit:
(a) To establish, install, construct, lay, operate, maintain, repair,
remove, demolish and reconstruct all such pipes, wires, conduits, equipment,
apparatus and facilities as shall be necessary or appropriate for the provision
of utility services to the Property or any portion thereof, including, but not
limited to, water, electricity, steam, natural gas, telephone, sanitary sewer,
storm sewer and oil;
(b) For vehicular and pedestrian ingress and egress to and from the
Property from one or more of the public rights-of-way abutting the Landlord's
Lands, together with the right to grade, level, fill, drain, pave, construct,
maintain, repair, expand (but only within the Easement Areas), rebuild and
replace such roads, ramps, drives, stairways, bridges and passages as shall be
necessary or appropriate to provide such ingress and egress; and
(c) For the purpose of entry thereon, passage there-over, deposit of
materials and equipment thereon, erection of structures therein or thereon, and
for all such other purposes and uses as are directly related to and made
necessary by the construction, demolition, reconstruction, repair, replacement
or alteration of any improvements now or hereafter erected in, over, through or
upon the Property or any portions thereof.
(ii) The Third Party Easements shall be non-exclusive and shall
benefit and be appurtenant to the Property and shall be binding upon, burden,
and run with Landlord's Lands in perpetuity, or on such terms or for such period
of time as requested by the grantee of said Third Party Easement. Landlord
agrees to execute appropriate instruments evidencing the grant of said Third
Party Easements to Xxxx of Pennsylvania, and/or Peoples Natural Gas Company,
and/or West Penn Power Company, and/or Pennsylvania American Water Company, as
Tenant and Xxxx of Pennsylvania, and/or Peoples Natural Gas Company, and/or West
Penn Power Company, and/or Pennsylvania American Water Company, may reasonably
request, (joined in by Tenant, if requested by Landlord), and Tenant may at
Tenant's sole expense, file same of record in the appropriate public records of
Washington County, Pennsylvania. During the Lease Term, Landlord shall not
permit any utilization of the Landlord's Lands which would interfere with the
proper exercise of Tenant's rights in and to the Property and Easement Areas. If
one or more Leased Easements, or any portion thereof, is taken pursuant to
condemnation proceedings, and if Landlord owns property adjoining the Land or
otherwise is in a position to grant Tenant additional easements, Landlord will
cooperate with Tenant in a good faith effort to replace any such Leased
Easements so taken upon the conditions and under the terms set forth in Section
10.
C. Initial Term. The initial term of this Lease ("Initial Term") shall be
for a period of forty-five (45) years, plus the Stub Period (hereinafter
defined) commencing at 12:01 a.m. (Eastern Standard Time) on __________________
("Commencement Date"), and
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terminating at 11:59 p.m. (Eastern Standard Time) on December 31 of the Lease
Year which is forty-five (45) years plus the Stub Period from that date, unless
terminated prior thereto by either party pursuant to the provisions of this
Lease. The term "Lease Year" shall mean any full calendar year during the Lease
Term. The period of time between the Commencement Date and December 31 of that
calendar year is the "Stub Period". The first Lease Year shall commence on the
first day of the calendar year following the Stub Period. Each successive twelve
(12) month period following the first Lease Year shall be a separate and
successively numbered Lease Year.
D. Permitted Encumbrances.
(i) The Property is subject to the encumbrances set forth in Exhibit
"E" attached hereto and made a part hereof for all purposes.
(ii) Landlord certifies to Tenant that, as to Landlord's Lands,
Landlord has the surface estate and has not granted any waiver of surface
support or waiver of surface damages. Landlord and Tenant agree that, during the
entire Lease Term, as to Landlord's Lands, Landlord shall not grant any waiver
of surface support or waiver of surface damages without Tenant's express written
consent thereto which such express written consent shall not be unreasonably
withheld. Landlord and Tenant further agree that, if any person or entity who
has or who may succeed to or otherwise acquire or derive right, title and
interest in and to any rights excepted and reserved, by and to Xxxxxxxxx
Industries, Incorporated and Xxxxxxxxx Charities, Inc., in Deeds to Landlord,
both Deeds being dated June 19, 1989 and recorded in the Office of the Recorder
of Deeds of Washington County at Deed Book Volume 2371, page 220 and Deed Book
Volume 2371, page 225, respectively, (all of such parties, persons or entities
being hereinafter collectively referred to as "Operator") conducts any digging,
mining, coking, draining, ventilating or carrying away coal in and underlying
Landlord's Lands ("Mining Activities") in such manner as to cause, in whole or
in part, any effect upon or injury or damage to and at Tenant's Property, then
Tenant shall pursue its remedies there for, in law and/or in equity, first
against the Operator, if, at that time, investigation by Tenant indicates that
such Operator has, and shall continue to have, the financial resources and
ability to fully and to completely satisfy and to pay any judgment, if entered
against Operator, for any effect upon or injury or damage to and at Tenant's
Property.
(iii) Landlord and Tenant further agree that if (a) such
investigation by Tenant indicates that such Operator does not have, or shall not
continue to have, such financial resources and ability, or (b) a Court of
competent jurisdiction: (1) determines that Tenant has no cause of action and/or
no remedy, in law and/or in equity, against such Operator for such effect,
injury or damage, or (2) determines that Tenant has no right of recovery, in law
and/or in equity, against such Operator for such effect, injury or
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damage, or (3) awards and enters a judgment against such Operator for such
effect, injury or damage caused, in whole or in part, by Mining Activities, but
Tenant is thereafter unable to satisfy and to collect upon any such judgment;
then, in any such event, Landlord shall pay Tenant, within thirty (30) days of
notice from Tenant of any one of the foregoing, the amount of the actual damages
sustained or incurred by Tenant caused, in whole or in part, by Mining
Activities, or the amount of the judgment awarded to and entered in favor of
Tenant, as the case may be. If Landlord shall not have paid Tenant within such
thirty (30) day period, Landlord's failure to do so shall be an Event of Default
(as such term is defined in Subsection 12.D below) by Landlord, and,
notwithstanding the provisions of Subsection 12.D(i), if Landlord so fails to
pay Tenant, Tenant shall notify Landlord of such failure, but for purposes of
this Subsection 1.D, Landlord shall have only ten (10) days within which to cure
such Event of Default prior to Tenant having the right to exercise its remedies
under this Lease. Landlord and Tenant agree that it is the intent of the parties
hereto that Tenant be compensated for any injury or damage to Tenant's Property,
caused, in whole or in part, by Mining Activities, regardless of whether the
Operator was negligent in causing such injury or damage, and that Landlord's
obligation under this Subsection 1.D is limited to such injury or damage.
(iv) Landlord agrees to notify Tenant, within ten (10) days of any
notice whatsoever to Landlord, whether required by statute or otherwise, that
any Operator has applied to the Department of Environmental Resources of the
Commonwealth of Pennsylvania for a permit to mine under Landlord's Lands or is,
in fact, conducting any Mining Activities under Landlord's Lands and Tenant, on
its part, agrees to notify Landlord, within ten (10) days of any notice
whatsoever to Tenant, whether required by statute or otherwise, that any
Operator has applied to the Department of Environmental Resources of the
Commonwealth of Pennsylvania for a permit to mine under Landlord's Lands or is,
in fact, conducting any Mining Activities under Landlord's Lands. In either
event and (a) as to any coal or mining rights under Landlord's Lands as held by
or as vested in Landlord as of the Commencement Date hereof, Landlord agrees
that, if Landlord itself intends to or is, in fact, conducting any Mining
Activities under Landlord's Lands with respect to any such rights, Landlord
shall leave and/or cause to be left in place, under Landlord's Lands and without
any compensation to be paid to it by Tenant or by Tenant's successors or
assigns, adequate coal such as to prevent any subsidence damage to the Property;
(b) as to any coal or mining rights under Landlord's Lands as held by or as
vested in Xxxxxxxxx Industries, Incorporated or in Xxxxxxxxx Charities, Inc. as
of the Commencement Date hereof, Landlord agrees that, if Xxxxxxxxx Industries,
Incorporated or Xxxxxxxxx, Charities, Inc. intends to or is, in fact, conducting
any Mining Activities under Landlord's Lands with respect to any such rights,
and if Landlord has not previously acquired the complete right of surface
support, Landlord shall timely cause to be paid, to Xxxxxxxxx Industries,
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Incorporated or to Xxxxxxxxx Charities, Inc., as the case may be, such
compensation as agreed or determined to be just and necessary so that adequate
coal shall be left in place to prevent any subsidence damage to the Property; or
(c) as to any coal or mining rights under Landlord's Lands as held by or as
vested in any other person or entity as of the Commencement Date hereof or as to
any such rights under Landlord's Lands as acquired, in any manner and subsequent
to the Commencement Date hereof, by Landlord, by Xxxxxxxxx Industries,
Incorporated or by Xxxxxxxxx Charities, Inc., Landlord agrees to timely notify
the owners of the economic interests in such coal or the operator of any such
mine, in writing, of Tenant's possible desire to acquire protection for surface
structures upon the land overlying the coal and, further, to timely take any and
all actions necessary to provide Tenant with the opportunity to timely purchase
and/or cause to be paid, to the owners of the economic interests in any such
coal or mining rights or to the operator of any such mine, any compensation as
agreed or determined to be just and necessary so that adequate coal shall be
left in place to prevent any subsidence damage to the Property.
E. Renewal Option. Provided that Tenant is not in default under any of the
terms and conditions of this Lease, Tenant shall have the right to renew this
Lease ("Renewal Option") for one twenty-five (25) year term ("Renewal Term"),
with the Renewal Term commencing upon the expiration of the Initial Term, such
that, if Tenant exercises the Renewal Option, this Lease shall expire at 11:59
p.m. (Eastern Standard Time) on December 31 of the Lease Year which is seventy
(70) years plus the Stub Period after the Commencement Date hereof. The total
term of this Lease, consisting of the Initial Term plus the Renewal Term, unless
terminated prior to the expiration of the Initial Term or the Renewal Term
pursuant to the terms hereof, shall hereinafter be sometimes referred to as the
"Lease Term". Should Tenant wish to exercise the Renewal Option, Tenant must
deliver written notice to Landlord of the exercise of the option on or before
December 31 of Lease Year forty-three (43).
F. Quiet Enjoyment. Landlord covenants to secure and maintain for the
benefit of Tenant the quiet and peaceful possession and enjoyment of the
Property for the full Lease Term, without hindrance, claim or molestation by
Landlord or any other person acting by, through or under Landlord.
G. Right of Special Termination.
(i) Conditions Justifying Exercise of Right. Tenant shall be
permitted to exercise a Right of Special Termination when any one or more of the
following situations shall exist:
(a) The Commonwealth of Pennsylvania, Department of Transportation shall
fail to provide the necessary highway funds in the amount of TWO
MILLION DOLLARS
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($2,000,000.00), or such lesser amount as is required, to complete
the highway improvements necessary to provide proper ingress and
egress to the Amphitheater Project; and/or
(b) The Pennsylvania Department of Environmental Resources, the United
States Environmental Protection Agency, and/or any other federal,
state, county or local government and/or their respective agencies,
shall fail to grant or to approve all necessary permits or approvals
for completion of the Amphitheater Project, provided that Tenant has
timely and in good faith applied for, complied with and processed
all permit and approval applications and conditions; and/or
(c) Tenant and/or any federal, state, county or local government and/or
their respective agencies, has identified on Landlord's Land the
presence of any Hazardous Waste(s), as such term is defined in
Section 15.E. of this Lease, and Tenant has given Landlord immediate
notice as provided in Section 18.E. of this Lease, of such Hazardous
Waste(s), and Landlord is unwilling and/or unable to cure said
condition within sixty (60) days of notice thereof, or is unable to
propose a cure which will be timely, effective and acceptable for
Tenant's use of the Property within the same sixty (60) day period;
and/or
(d) Landlord shall not commence within thirty (30) days of execution of
this Lease an action to quiet title to Landlord's land in the Court
of Common Pleas of Washington County to remove the encumbrance on
the title created by the Xxxxxxxx-Xxxxx Agreement of Sale dated
October 11, 1939 and/or Landlord is unable to and/or fails to remove
said encumbrance within one (1) year of execution of this Lease;
and/or
(e) Any deep mine subsidence causes damage or injury to the surface of
the Property, Leased Easements and/or other Easement Areas, or to
any building or improvement now or hereafter constructed thereon,
and, within sixty (60) days of notice thereof from Tenant, as
provided in Section 18.E. of this Lease, Landlord is unable and/or
unwilling to remedy the subsidence and/or to repair or otherwise
remedy any and all damage caused thereby; and/or
(f) Tenant shall determine that, because of cost overruns, the
construction budget shall exceed $8.3 Million plus any road funding
from the Commonwealth.
(ii) Tenant's Exercise of the Right. If Tenant shall
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choose to exercise the Right of Special Termination after expiration of any cure
period provided in Section 1.G.(i) of this Lease, Tenant shall provide notice
thereof to Landlord in the manner set forth in section 18.E. hereof. Tenant's
exercise of the Right of Special Termination shall be effective upon receipt of
said notice by Landlord.
(iii) Liability Upon Exercise of Right. In the event that Tenant
shall exercise the Right of Special Termination, Tenant shall be responsible
for:
(a) Reimbursing Landlord for all reasonable sums expended by Landlord in
preparation of the Land and Leased Easements for the Amphitheater
Project, including the costs of Landlord's Work, as defined in this
Lease. Landlord shall provide, upon Tenant's request, verification
of all expenditures for which reimbursement is sought; and
(b) Returning the Land and Leased Easements, as nearly as possible, to
their pre-Lease condition; and
(c) In the event of exercise of the Right of Special Termination for
either or all of the reasons provided in Sections 1.G(i)(a)(b) or
(f), reimbursing Landlord for any transfer taxes incurred in
obtaining title to Landlord's land, and for any tax liability
ultimately incurred by Landlord as a result of the loss of "Clean
and Green" status for the Property, said liability to include
payment of back taxes as required under the "Clean and Green"
statute and future taxes; provided, however, that Landlord shall: 1)
immediately notify the Board of Assessment that the proposed use for
the Property is abandoned; 2) immediately take any and all steps
necessary, in good faith, to return the Property to "Clean and
Green" status; and 3) take no action inconsistent with "Clean and
Green" status for the Property. It is specifically understood and
agreed to by the parties hereto that the tax liability of Tenant as
provided herein shall be limited to no more than $50,000.00.
(iv) Other Liabilities Released. In the event Tenant shall exercise
the Special Right of Termination, Tenant and Landlord hereby agree that, with
the exception of the responsibilities outlined in Section 1.G.(iii)(a-c), Tenant
and Landlord hereby fully release and discharge the other from all rights,
claims, actions, causes of action, demands, damages, costs, loss of services,
expenses, compensation, and all consequential damages each now has, has had or
may in the future have against the other arising out of or in connection with
the Amphitheater Project and/or this Lease.
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(v) Term of Right. Tenant's Right of Special Termination shall
expire eighteen (18) months after the effective date of this Lease.
Section 2. USE, RESTRICTIONS ON LANDLORD, LANDLORD COOPERATION
A. Tenant's Use of Property. Tenant shall have the right to use the
Property for live entertainment; for commercial concert, amphitheater and arena
activities; for fairs, festivals and events related thereto; for picnic areas;
for recreational and leisure sports; as an educational center or conference
center; including, without limitation, for the vending of food, of beverages
(including alcoholic beverages) and of merchandise in connection with any of the
foregoing; for roads, parking and utility purposes and for uses related to all
of the foregoing.
B. Tenant's Exclusive Use. Tenant shall have the sole and exclusive right
to use, occupy, and enjoy the Property.
C. Restrictions on Landlord. During the entire Lease Term, without the
prior written consent of Tenant, which consent may be withheld by Tenant in its
sole and absolute discretion, neither Landlord nor any person deriving rights
from Landlord shall use any portion of Landlord's Lands to engage in any
activities, at any time, which are similar to, or competitive with, the types of
activities which, at the particular time, are normal and customary for live
entertainment, for commercial concert, amphitheater and arena facilities, for
fairs, festivals, and events related thereto, for recreational and leisure
sports, or as an educational center or conference center. In addition, neither
Landlord nor any person deriving rights from Landlord shall engage in any
conduct on any portion of the Landlord's Lands which materially interferes with
Tenant's conduct of business or Tenant's use of, enjoyment of, or operations on,
the Property. No portion of Landlord's Lands will be developed or utilized in
such a manner as would cause the Tenant's activities on the Property to be in
violation of any law, ordinance, regulation or other land-use restriction,
including, without limitation, any sound emission restriction or ordinance. The
rights of Landlord, its successors and assigns in and to the Landlord's Lands
shall at all times be subject to the rights of Tenant under this Lease. Landlord
recognizes that it is of the utmost importance that Tenant be free from any
competitive activities upon the Landlord's Lands and from any interference with
Tenant's activities. Accordingly, all prohibitions contained in this Subsection
2.C shall be construed to prohibit all activities upon the Landlord's Lands
which are competitive with, or interfere with, Tenant's activities on the
Property. The provisions of this Section 2.C shall be included in the Memorandum
of Lease described in Section 21 hereof.
D. Landlord Cooperation. If and to the extent that Tenant has not
previously done so, Tenant shall be entitled to apply for
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all zoning approvals, changes or variances, including, without limitation, for
zoning certificates, building permits and zoning occupancy permits, and for
variances, for special exceptions and for non-conforming use, all for such
purposes as, without limitation, utilities, off-site road improvements and other
state and local governmental participation and/or approvals, as are necessary,
in the exercise of Tenant's sole judgment and discretion, for the utilization of
the Property for the purposes intended by Tenant. Without derogating from the
generality of Landlord's other obligations hereunder, Landlord hereby agrees to
cooperate and assist Tenant with the development of the Land for Tenant's
intended purposes, including causing Landlord's personnel, if necessary, to give
assistance in obtaining such zoning approvals, changes or variances, including,
without limitation, zoning certificates, building permits, zoning occupancy
permits, or variances, special exceptions and non-conforming use for such
purposes as, without limitation, utilities, off-site road improvements and other
state and local governmental participation and/or approvals, for the Property as
may be necessary for the operation of the Amphitheater, by taking such
reasonable actions as reasonably requested by Tenant, including, without
limitation, by signing properly prepared applications, by appearing at regularly
scheduled meetings held by government authorities regarding the applications,
certificates and permits, and by processing the applications, certificates and
permits in Landlord's name, if required. Any and all applications for zoning
approvals, changes or variances, as set forth above, may be filed by either
Landlord (if requested by Tenant) or by Tenant, as appropriate, and any and all
applications for zoning occupancy permits shall be filed by Tenant. Landlord's
agreement to so cooperate with and assist Tenant shall not require Landlord to
hire additional personnel solely for such purpose, and all costs incurred in
acquiring any zoning approvals, changes or variances shall be paid by Tenant,
including Landlord's expenses paid to third parties and Landlord's
out-of-pocket expenses (but Tenant shall not reimburse or otherwise compensate
Landlord for the time or services of Landlord's employees).
Section 3. RENT
A. Minimum Rent. Unless prepaid pursuant to Subsection 3.B below, on or
before the fifteenth (15th) day of the first month following the Commencement
Date, and on or before the fifteenth (15th) day of each succeeding month
thereafter until the expiration of the Lease Term, Tenant shall pay to Landlord
one-twelfth (1/12) of the Minimum Rent ("Monthly Minimum Rent Payment"), which
Monthly Minimum Rent Payment will be for that month. During Lease Years one
through eight, the Minimum Rent shall be Sixty Thousand ($60,000.00) Dollars per
annum. During the balance of the Initial Term, the Minimum Rent shall be One
Hundred Thousand ($100,000.00) Dollars per annum. During the Renewal Term, the
Minimum Rent shall be One Hundred Twenty Thousand ($120,000.00) Dollars per
annum.
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If there is a Stub Period, the Minimum Rent for such Stub period will be an
amount equal to $60,000.00 times a fraction, the numerator of which is the
number of months in the Stub Period and the denominator of which is 12, payable
in equal monthly installments for the number of months in the Stub Period.
B. Percentage Rent.
(i) On a cumulative annual basis (meaning the accumulation commences
with the beginning of the Stub Period, terminates at the end of the Stub Period
and each Lease Year, and the accumulation again commences at the beginning of
each subsequent Lease Year) Tenant also shall pay rent ("Percentage Rent") to
Landlord equal to a percentage (stipulated herein) of the Gross Receipts
(defined below) in excess of the Minimum Rent for the Stub Period or Lease Year,
as applicable, payable as described below.
(ii) Commencing with the Stub Period and continuing until the
commencement of Lease Year Nine, the Percentage Rent shall be one percent (1%)
of Gross Receipts; during the balance of the Initial Term, the Percentage Rent
shall be one and one-half percent (1-1/2%) of Gross Receipts; and during the
Renewal Term, the Percentage Rent shall be two and one-quarter percent (2-1/4%)
percent of Gross Receipts.
(iii) The term "Gross Receipts" shall refer to all gross operating
revenue from any operations in any manner conducted on the Property during a
particular period of the Lease Term, whether such operations are conducted by
Tenant or any other entity; provided, however, that the following shall not be
included in Gross Receipts:
(a) Up to three percent (3%) of the total tickets available for each event
and used by Tenant for promotional, artist contracts or sponsorship purposes;
(b) Taxes paid to governmental authorities which are based upon or
measured by gross receipts or other activities or are added to the price of a
ticket, entry fee, food, beverage, merchandise, sales price, or parking in
connection with Tenant's business activities, including sales, excise, seat,
entertainment or similar taxes, but not net income taxes;
(c) Sums paid to Tenant by concessionaires, subtenants or licensees, if
the gross revenues received by such concessionaires, subtenants or licensees are
included within Gross Receipts;
(d) Funds received by Tenant which are not operating revenue from
operations associated with the Property, such as condemnation awards, casualty
proceeds, refinancing of loans, capital expenditures on the Property, or sales
of fixtures, furniture or equipment;
(e) Revenue attributable to ticket sales or other revenue for events
conducted at the Property by third party charitable or non-profit organizations,
so long as Tenant has agreed that Tenant will not receive compensation relative
to such ticket sales or other revenue (it being agreed that Landlord shall be
entitled to
10
its applicable Percentage Rent with respect to any compensation paid to Tenant
in connection with such events, such as rental fees or revenue derived from
concessionaires).
(iv) For the first and second months of the Stub Period and for the
first and second months of every Lease Year thereafter, Tenant shall make the
applicable Monthly Minimum Rent Payment on the 15th of such month, as provided
above in Subsection 3.A. Commencing with the last day of the second month of the
Stub Period and of every Lease Year thereafter, for each month during which
there shall be operations on the Property which generate Gross Receipts, Tenant
shall pay to Landlord, no later than the last day of the following month, the
applicable Percentage Rent, if and to the extent, on a cumulative basis, there
shall be such Percentage Rent in excess of previously paid Minimum Rent due and
owing to Landlord. During any month in which there are activities on the
Property which generate Gross Receipts, Tenant shall furnish to Landlord
financial information relative to such Gross Receipts, even if the Percentage
Rent, on such a cumulative basis, is less than the Minimum Rent previously paid
for such Lease Year. All payments of Percentage Rent (being sums in excess of
Minimum Rent) which are paid pursuant to Subsection 3.B shall entitle Tenant to
a credit towards the next Monthly Minimum Rent Payment(s) due, so that, in the
event that Tenant has paid to Landlord, prior to the last month of such Lease
Year, rents (in Percentage Rent payments or a combination of Percentage Rent
payments and Monthly Minimum Rent Payments) in an aggregate amount equal to the
applicable annual Minimum Rent for a Lease Year, no further Monthly Minimum Rent
Payments shall be due from Tenant for such Lease Year.
(v) Within sixty (60) days following the end of any Lease Year
(including the Stub Period), or of any partial Lease Year if this Lease is
terminated in accordance with the terms hereof prior to the end of a Lease Year,
during which Tenant received or should have received any Gross Receipts, Tenant
shall provide financial reports to Landlord prepared in accordance with
generally accepted accounting principles (provided, however, that the financial
information furnished to Tenant by concessionaires or other third parties may
not be so prepared) and certified by an officer or other authorized
representative of Tenant as having been so prepared (delivery of any financial
reports to Landlord being a certification as to the accuracy of the reports by
Tenant), including, but not limited to, statements showing the amount of actual
annual Gross Receipts and actual annual Percentage Rent ("Actual Percentage
Rent") due with respect to the particular period being reported. To the extent
that the Actual Percentage Rent due under this Lease exceeds Percentage Rent
paid to Landlord during any Lease Year or any partial Lease Year, as the case
may be, the amount by which the Actual Percentage Rent exceeds the Percentage
Rent already paid under the Lease ("Under Payment") shall be paid by Tenant to
Landlord at the same time the certified financial statement is delivered to
Landlord, but in no event later than sixty (60) days following the end of the
applicable Lease Year or partial Lease Year, together with interest at the
Penalty Rate
11
(hereinafter defined) on the Under Payment, accruing from the date such Under
Payment should have been paid and until paid to Landlord. Notwithstanding the
foregoing, if the Under Payment is without fault by Tenant, such interest shall
accrue only as of the date the Tenant knew of the Under Payment. For example, if
a concessionaire incorrectly reports the amount of its Gross Receipts to Tenant
and that incorrect report is the cause of the Under Payment, then interest shall
not accrue until the Tenant knows of the Under Payment and the amount thereof.
To the extent that the Percentage Rent paid to Landlord during any Lease Year,
or any partial Lease Year, as the case may be, exceeds the Actual Percentage
Rent found to be due under this Lease, that amount shall be paid by Landlord to
Tenant, without interest, within thirty (30) days following receipt of the
financial statement by Landlord.
C. Tenant's Duty to Keep Records. Tenant shall maintain complete and
accurate records with respect to all matters relevant to the computation of
Percentage Rent, including cash records and receipts for Tenant and for all
concessionaires or subtenants operating at the Property, and shall keep such
records for at least five (5) years from the end of the Lease Year to which such
records relate. Landlord shall have the right to make inquiries or informal
inspections of Tenant's books and records relative to the Property and the
operations conducted thereon ("Tenant's Records") at any time during normal
business hours, but under no circumstances may Landlord use this right to
disrupt Tenant's business in any manner. During the period from April 1 to
November 1 of each Lease Year, Landlord may, not more than two (2) times,
inspect Tenant's Records, provided that Landlord shall give Tenant two (2)
working days' prior notice and shall not, under any circumstances, use this
right to disrupt Tenant's business in any manner. On no more than two (2)
occasions in any one (1) Lease Year and only during the period from November 1
of one Lease Year to April 1 of the following Lease Year, at Landlord's expense,
Landlord may have an independent auditor ("Landlord's Auditor") audit Tenant's
Records, provided that Landlord shall give Tenant two (2) working days' prior
notice and shall not, under any circumstances, use this right to disrupt
Tenant's business in any manner. Upon Landlord's exercise of such right, Tenant
shall make all such books, records, compilations or other information or forms
of information, including notes and compilations of accountants, sales tax
records and all such other information relating to Tenant's operations at the
Property or, if in Tenant's possession, any subtenant's operations at the
Property, as reasonably requested by Landlord's Auditor, available to Landlord
at a location designated by Tenant within Washington County, Commonwealth of
Pennsylvania.
D. Additional Rent. As additional rent ("Additional Rent"), Tenant agrees
to:
(i) Pay those taxes, assessments or other governmental charges
levied or assessed against the Property and described in
12
Subsection 7.A below; and
(ii) Obtain the insurance policies described in Section 9 below.
E. Fixed Rent. In addition to all other Rent set forth in this Lease,
Tenant shall pay to Landlord, as Fixed Rent ("Fixed Rent"), one-eighth (1/8) of
the total amount of Landlord's Work, as defined and described in Section 5
below, beginning on the earlier to occur of (a) thirty (30) days from the
completion of Landlord's Work, or (b) the date on which Tenant opens the
Amphitheater to the public, and a like amount on the same day of every year
thereafter for the next seven (7) years; provided, however, that if Landlord has
not completed Landlord's Work by one (1) year from the commencement thereof by
Landlord, then Tenant shall commence payment of Fixed Rent beginning one (1)
year from the commencement of the work by Landlord, by payment to Landlord of an
amount equal to one-eighth (1/8) of the cost of the work performed to such date,
and, upon completion of Landlord's Work, the additional amount owing
(representing work performed from the period beginning one (1) year from the
commencement date of such work and ending on the date on which such work is
completed) shall be divided by the number of remaining payments and shall be
added to each such payment; and provided further, however, that if Landlord has
not completed Landlord's Work on or before one (1) year from the date of the
first payment of Fixed Rent, there will be annual adjustments of the amount of
Fixed Rent until Landlord's Work is completed. Such additional sums will also
constitute Fixed Rent. Fixed Rent and Additional Rent shall not reduce or in any
way be applied toward reduction or diminishment of Percentage Rent.
F. Payment of Rent. All rent amounts shall be paid to Landlord at 000
Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxxxxxx 00000, without demand and without
any set-off or deduction by Tenant except as (i) specifically set out in
Subsection 3.B(iv) concerning Minimum Rent, or (ii) may be expressly provided by
orders, regulations or other directives of any governmental agencies.
Section 4. TENANT IMPROVEMENTS
A. Amphitheater and Parking Area. Tenant intends to construct a first
class outdoor performance amphitheater, related facilities and a parking area on
the Land sufficient for the needs of Tenant's use of the Property. The term
"Amphitheater" refers to the aforementioned amphitheater and related facilities
as constructed on the Property. The term "Parking Area" refers to the
aforementioned parking area as constructed on the Land.
B. Tenant to Complete Construction. Tenant will construct the
Amphitheater, commencing no later than November 1, 1990 and complete all
construction no later than June 15, 1991.
C. Improvements. The term "Improvements" shall mean all
13
improvements, betterments, facilities and the like which now exist or are at any
time constructed or placed upon the Land, whether by Landlord or Tenant. Title
to all Improvements, and any and all depreciation and investment tax credits
generated thereby or available in connection therewith, shall belong to, and
accrue to the benefit of, Tenant during the Lease Term. Upon the expiration or
termination of this Lease, title to all Improvements shall automatically vest in
the Landlord at such time as the Property is surrendered to Landlord, provided,
however, that all removable trade fixtures or equipment installed in or located
at the Property at the expense of Tenant, and all of Tenant's personal property
which has been removed from the Property on or before the termination of the
Lease, shall remain the property of Tenant. Any property not so removed shall,
at the expiration of the Lease Term, be considered abandoned property and
Landlord shall have the right, if it wishes, to claim such property, provided,
however, that if this Lease terminates for any reason other than the expiration
of the Initial Term or the Renewal Term, Tenant shall have thirty (30) days from
the date of the termination of this Lease within which to remove such trade
fixtures, equipment or other personal property.
D. Alterations and New Construction. Tenant shall have the right, from
time to time, to alter or modify the Existing Improvements, to construct new
Improvements and to demolish any Improvements if such actions are necessary or
appropriate, in Tenant's business judgment, exercised in good faith.
E. Protection of Property. While any excavation, demolition or
construction is being performed on the Land or any portion thereof, Tenant shall
protect all the Land, any portion of Landlord's Lands which may be thereby
affected and any other land owned by Landlord, Xxxxxxxxx Industries,
Incorporated or Xxxxxxxxx Charities, Inc. which may be thereby affected from all
adverse effects of such excavation, demolition or construction.
X. Xxxx. Tenant shall provide for Landlord's benefit, prior to any site
work, except site work to be performed solely by Landlord or its subcontractors,
a Bond in the amount of $150,000.00 to secure Tenant's completion of all work
relative to the initial construction of the Amphitheater, which bond shall be
released upon thirty (30) days' prior notice following completion of such
construction work.
G. Liens. With respect to all contracts entered into by Tenant for labor
or materials furnished for construction, alteration or repair of Improvements on
the Land, for work to be performed or materials to be furnished in amounts in
excess of $10,000.00, where non-payment for same could result in a lien being
filed against Landlord's interest in the Land, Tenant shall take all reasonably
necessary steps to ensure such liens are not so filed, such procedures presently
including execution of no lien
14
contracts, to be filed in the Office of the Prothonotary of Washington County,
Pennsylvania, prior to the commencement of construction or delivery of any
material to the Land.
H. Removal of Property. Tenant and other persons claiming under Tenant
shall have the right to remove from the Property all or any of the items which,
pursuant to Subsection 4.C above, are specified as being subject to Tenant's
retained ownership and Tenant's right to remove. The removal of such items, to
the extent that Tenant elects to do so, may be accomplished at any time and from
time to time but only during the Lease Term, except as set forth in Subsection
4.C above.
I. Government Grants. Landlord hereby agrees to cooperate in obtaining,
whenever possible, governmental grants providing funds for the construction of
the Amphitheater, other Improvements and off-site improvements designed to
improve access to or otherwise enhance the value of the Property by taking such
reasonable actions as reasonably requested by Tenant including, without
limitation, by signing properly prepared applications and by processing said
applications. Any funds obtained through governmental grants, including any
construction reimbursements, shall, whenever possible, be obtained in Tenant's
name and not in Landlord's name and shall be for use of, or for reimbursement
to, Tenant for the cost of construction of the Improvements and, thereafter, for
the cost of off-site improvements designed to improve access to the Land, or to
otherwise enhance the value of the Property, including, without limitation, for
the construction of traffic controls, highways, access roads and ramps relative
to such access, and water and sewer lines and any extension thereof to the
Property. In the event that any governmental grant shall require payment to
Landlord, the parties hereto expressly agree that such funds shall be
transferred to Tenant for Tenant's use, or, at Tenant's option, in the
alternative, shall be expended by Landlord on behalf of Tenant pursuant to this
Subsection 4.I. Tenant hereby indemnifies Landlord for any and all liability of
Landlord or its Affiliates resulting from (i) any representations made by
Landlord at Tenant's request (to the extent based upon information furnished by
Tenant), (ii) taxes upon the funds received, provided such taxes constitute a
one-time charge, such as excise or income taxes, and (iii) reasonable attorney's
fees, accounting costs and engineering fees paid to third parties if incurred by
Landlord at the request of Tenant.
Section 5. LANDLORD'S WORK
A. Landlord's Obligation. Upon the request of Tenant, Landlord shall
provide or cause to be provided concrete, slag and equipment in an aggregate
amount or value of not more than $800,000.00 for the purpose of making
Improvements to the Property in accordance with the plans and specifications
prepared by Tenant ("Landlord's Work"). It is the intention of Landlord and
Tenant
15
that Landlord shall provide such materials and services at the rates and in
accordance with the terms set forth on Exhibit "F" to this Lease. Prior to the
commencement of any work by Landlord, but subsequent to the execution of this
Lease, Landlord and Tenant shall enter into a contract ("Contract"), on the
standard 1987 AIA Fixed Price Contract form, and the terms of such Contract
shall govern the relationship of Landlord, as "Contractor", and Tenant, as
"Owner", for purposes of such work to be performed by Landlord, including a
normal construction timetable, and Landlord shall enter into a subcontract with
Xxxxxxxxx Industries, Incorporated ("Xxxxxxxxx") wherein Xxxxxxxxx agrees (i) to
perform, through its employees or its subcontractors, the work Landlord is
obligated to perform under the Contract, and (ii) that Tenant shall be a third
party beneficiary of any such subcontracts.
B. Plans. Tenant shall prepare such site plans, designs, plans and
specifications ("Plans") as deemed necessary and appropriate by Tenant for the
construction of the Improvements and furnish a copy of same to Landlord, in
accordance with the terms of the Contract.
C. Excess Costs. In the event that the costs of Landlord's Work exceed
$800,000.00, the difference shall be paid to Landlord by Tenant in accordance
with the terms of the Contract.
Section 6. PARKING
Tenant shall have exclusive use and occupancy of the Parking Area during
the entire Lease Term. The gross income realized by Tenant or by anyone claiming
through Tenant from the Parking Area will be included in the computation of
Percentage Rent.
Section 7. TAXES AND OTHER IMPOSITIONS
A. Taxes Based Upon the Property. To the extent that Tenant is permitted
by the appropriate authorities to do so, Tenant agrees that Tenant will cause
the Property to be separately assessed. Landlord hereby agrees to sign, to file
and to process such subdivision documents with the appropriate authorities
and/or in the appropriate records for Washington County, Pennsylvania, all as
may be reasonably requested by Tenant to obtain such separate assessment of the
Property and, further, to cooperate with Tenant in satisfying any additional
requirements relative thereto. Tenant shall pay all taxes and assessments
imposed by any governmental entity to the extent the foregoing are measured by
or based upon the Land or by any Improvements and any transfer taxes caused by
(i) the execution of this Lease, (ii) a transfer of Tenant's interest therein,
(iii) grant of the Third Party Easements or any other easement granted by
Landlord to a third party at Tenant's request, or (iv) construction of any
improvements on the Land. Tenant shall also pay all taxes, assessments, license
fees, excises, imposts, and fees and charges of any other kind imposed
16
by any governmental entity upon Tenant's personal property of any kind,
including sound equipment, lighting equipment, stage equipment, kitchen and
commissary equipment, seating and benches, concessionaires kiosks and similar
installations, and all Tenant's trade fixtures located on the Property. Any tax
or other imposition upon the Land or Improvements which is payable with respect
to a period of time which falls partly within and partly outside the Lease Term
shall be pro-rated between Landlord and Tenant.
B. Taxes Arising with Respect to Business. Tenant shall pay, before
delinquency, any sales tax, gross receipts tax, other tax, license fee, excise,
impost or fee or charge of any other kind which is based upon the business or
activities of Tenant or of any person or entity deriving rights from Tenant
during the Lease Term.
C. Tax Contest. Tenant may, at no cost or expense to Landlord, dispute and
contest any particular tax, assessment or other charge and, in such case, such
item need only be paid if and to the extent that the laws or regulations
governing such contest do not permit postponement of payment; provided, however,
that if the non-payment thereof places Landlord or its property at any risk,
Landlord may require Tenant to post such reasonable security as Landlord may
require. If Landlord must nevertheless join in any protest or contest, Landlord
shall do so, provided that all cost and expense of the protest or contest,
including Landlord's reasonable attorney's fees, are borne by Tenant and the
joinder does not place Landlord or its property at any risk for which reasonable
security has not been furnished to Landlord.
Section 8. GENERAL REQUIREMENTS UPON TENANT
A. Compliance with Laws. Subject to the provisions of Subsection 15.E
below, during the Lease Term, Tenant shall obey and comply with all present and
future laws, ordinances, rules and regulations of all governmental entities
which, in any way, affect the Property. Tenant shall have the right, at its sole
cost and expense, to contest the validity of any of the foregoing in good faith.
If necessary, Landlord agrees to join in any such protest or contest; provided,
however, that the cost thereof, including the Landlord's reasonable attorney's
fees, shall be borne by Tenant. Tenant hereby agrees to indemnify Landlord from
all loss or damage whatsoever, including Landlord's reasonable attorney's fees,
from Tenant's failure to abide by any such laws, ordinances, rules and
regulations.
B. Repair. Tenant shall, during the Lease Term and at Tenant's sole cost
and expense, keep and maintain the Amphitheater and all other Improvements in
good and sanitary order, condition and repair, ordinary wear and tear excepted.
C. Utilities. Tenant shall, during the Lease Term, pay for
17
all utilities to the extent used in and on the Property, and Landlord, in its
capacity as Landlord under this Lease (and not in its capacity as a third
party), shall have no responsibility for any interruptions in the supply of such
utilities.
D. Costs and Expenses. Except as otherwise provided in this Lease, Tenant
shall, during the Lease Term, bear all costs and expenses pertaining to the
Property, including, without limitation, the costs and expenses arising out of
the activities of Tenant and of any concessionaires and sublessees of Tenant.
E. Corporate Box. At no expense to Landlord, during the Lease Term,
Landlord shall be entitled to a corporate box of six seats and to all tickets
for such box for each event, together with all amenities associated with
ownership of a box, as set forth in Tenant's standard boxholder contract in
effect from time to time.
Section 9. INSURANCE AND INDEMNIFICATION
A. Liability Insurance. Tenant shall obtain public liability insurance in
an amount not less than $3,000,000.00, but Tenant shall, with due diligence,
attempt to obtain such additional dollar limits as will adequately cover the
insured perils, with responsible insurance companies legally authorized to
transact business in the Commonwealth of Pennsylvania. The liability insurance
obtained by Tenant shall name Landlord as a named insured to cover Landlord
against liability to third parties for bodily injury or property damage
occurring at the Property resulting from Landlord's negligence or, at Tenant's
option, Tenant may obtain a separate policy in the form described herein naming
Landlord as the insured thereunder. Landlord agrees that it shall not cancel or
request, from the issuing insurance company, any changes to any insurance policy
obtained by Tenant hereunder. Tenant shall not conduct or allow to be conducted
upon the Property any activity which is expressly excluded from the coverage
under the insurance policy described above, unless Tenant shall obtain
additional insurance covering such activity; provided, however, that if Landlord
believes that Tenant has failed to comply with the provisions of this Subsection
9.A with respect to an activity which previously has been conducted at the
Property, such that same would constitute an Event of Default (hereinafter
defined) which cannot be cured (because said activity was conducted without such
additional insurance coverage), Landlord shall not be entitled to declare same
an-Event of Default or exercise any of Landlord's remedies unless Tenant's
failure to obtain such additional insurance coverage was an intentional
violation of this Lease; and provided further, that if Landlord in good faith
believes that Tenant intends to conduct an activity on the Property which is not
insured, Landlord shall be entitled to send Tenant written notice at least five
(5) days prior to the occurrence of such activity, specifying such activity and
the insurance which Landlord believes Tenant is required to obtain pursuant to
this Lease, and, if Tenant
18
fails to acquire such insurance after such notice from Landlord, such failure
shall be deemed to be "intentional" for purposes of this Subsection 9.A.
B. Property Insurance. At all times during the Lease Term, Tenant shall at
its expense keep all Improvements on the Property insured against loss or damage
from all such risks and in such amounts as Tenant, in the exercise of Tenant's
reasonable judgment and discretion, shall deem appropriate, but not less than
the replacement cost of the Improvements, with responsible insurance companies
legally authorized to transact business in the Commonwealth of Pennsylvania;
provided, however, that during the last ten (10) years of the Initial Term or,
if Tenant exercises the Renewal Option, during the last ten (10) years of the
Renewal Term, Tenant may, at its option, keep the Improvements insured for their
actual cash value. The Landlord shall be named therein as an additional insured
as its interest may appear. If any property insurance policy contains a
co-insurance clause, Tenant will obtain, if available and if the cost is not
excessive, an agreed amount endorsement or any other provision, endorsement or
coverage available and cost efficient, or take such other actions as are
reasonable and cost efficient, which are intended to provide assurance to
Tenant, as the insured, that Tenant will not become a co-insured on such policy.
C. Builder's Risk Insurance. During any period of construction on the
Property, Tenant shall maintain, or cause to be maintained, Builder's Risk
Insurance in an amount not less than the total amount of the insurable
Improvements being constructed, with responsible insurance companies legally
authorized to transact business in the Commonwealth of Pennsylvania.
D. Other Insurance.
(i) Tenant shall maintain worker's compensation and automobile and
vehicular liability insurance as required by the laws of the Commonwealth of
Pennsylvania.
(ii) If Tenant requires any concessionaire or other party conducting
activities on the Property to name Tenant in its liability insurance policy,
Tenant will also require such party to name Landlord as an additional insured
thereunder. If any performer or artist participating in any events at the
Property names Tenant as an additional insured under its liability insurance
policy, Tenant will use all reasonable efforts to cause such performer or artist
also to name Landlord as an additional insured thereunder.
(iii) Notwithstanding the provisions hereof regarding the types and
limits of insurance required to be carried by Tenant, if Tenant believes that it
is economically impossible or infeasible to obtain a particular type of
insurance, or the required amount of insurance, Tenant shall be entitled to so
notify Landlord, requesting Landlord's approval of Tenant's failure to obtain a
19
particular policy or of Tenant's ability to obtain a particular policy in a
lesser amount, and Landlord agrees not to unreasonably withhold its consent to
such actions, in the exercise of its reasonable business discretion; provided,
however, that if, pursuant to Subsection 9.F below, Tenant attempts to cause a
Registered Mortgagee to be named as an insured under any of the insurance
policies required to be obtained by Tenant under this Lease, and the insurer
levies an additional charge to do so, Tenant agrees that, to the extent that
Tenant believes such extra charge causes it to be economically impossible or
infeasible to obtain such insurance, Tenant nevertheless shall not be entitled
to request that Landlord waive obtaining such insurance pursuant to this
Subsection 9.D(iii).
(iv) If, in the course of planning for future events, Tenant
determines that Tenant will be unable to obtain any insurance coverage required
by this Lease, Tenant will so notify Landlord.
E. Policies. Tenant's coverage under all insurance policies shall commence
as of the Effective Date of this Lease. All insurance policies shall provide for
at least ten (10) days' written notice to the Landlord before cancellation and
copies or certificates of policies of insurance shall be delivered to the
Landlord upon commencement of each policy. If any blanket general insurance
policy insuring Tenant otherwise complies with all of the terms of the
provisions of this Section 9, the (i) naming of the Landlord therein as a named
insured, (ii) specification of the Land as a scheduled location, and (iii)
specification that the full policy amount is available for losses incurred at
the Land regardless of the amount of losses incurred at other locations, shall
be deemed compliance with the requirements for the insurance coverage.
F. Named Insured; Adjustment of Losses. At the request of Tenant, any
Registered Mortgagee (hereinafter defined) may be named as an insured under any
of the said insurance policies required under this Section 9, as its interest
may appear. If any loss under any such insurance policy required hereunder is
less than $100,000.00 (as adjusted, as hereinafter provided) or more, it may be
adjusted with, approved by and paid to Tenant and a Registered Mortgagee, if
any, or, if there is no Registered Mortgagee, then it may be adjusted with,
approved by and paid to (a) Tenant in absence of any default hereunder or (b)
Tenant and Landlord in the case of the existence of an Event of Default or with
respect to a loss occurring during the last sixty (60) days of the Lease Term.
Subject to the provisions of Subsection 10.B, losses in the amount of
$100,000.00 or more (as adjusted, as hereinafter provided) shall be paid to
Tenant and all named or additional insureds as their interests may appear, and
Landlord's interest in the proceeds shall be assigned to Tenant upon proof that
the destroyed Improvements have been repaired, replaced or rebuilt. The
$100,000.00 limitation set forth herein shall be adjusted upwards or downwards
20
for each year of the Lease Term by a percentage equal to any increase or
decrease from the Effective Date hereof in the CPI, "CPI" being defined as the
Consumer Price Index for All Urban Consumers, U.S. City Average, All Items
(1982-84=100), or if said Index ceases to exist in substantially its current
form, a reasonably comparable substitute index.
G. Indemnity of Landlord. During the Lease Term and except as arising out
of or occurring in connection with (i) the provisions of Subsection 15.E below,
or (ii) the use and occupancy of the Property or Easement Areas by the Landlord
or its employees, agents, contractors, or visitors, the Landlord shall not be
liable to Tenant or Tenant's employees, agents, sub-tenants, contractors or
visitors, or any other person whatsoever, and Tenant will indemnify, defend and
hold harmless the Landlord of and from all fines, suits, claims, demands, losses
and actions (including any and all attorney's fees) for any injury to persons or
damage to or loss of property arising out of Tenant's use of the Property or
Easement Areas.
Section 10. CASUALTY AND CONDEMNATION
A. Casualty. With respect to any loss or damage to the Amphitheater or to
any other Improvements on the Property as a result of fire or other casualty,
and:
(i) such loss occurs during the last ten (10) years of the Initial
Term, or occurs after Tenant has exercised its Renewal Option, but during the
last ten (10) years of the Renewal Term:
(a) if such loss is a Substantial Loss (hereinafter defined),
whether or not such loss is an Insured Loss, Tenant shall have the
right to terminate the Lease;
(b) if such loss is not a Substantial Loss and is an Insured
Loss (hereinafter defined), Tenant shall be obligated to rebuild or
repair the Improvements;
(c) if such loss is neither a Substantial Loss nor an Insured
Loss, and the cost to rebuild or repair the damaged Improvements
will be equal to or greater than the Repair Amount (hereinafter
defined), Tenant shall have the right to terminate the Lease;
(d) if such loss is neither a Substantial Loss nor an Insured
Loss, and the cost to rebuild or repair the damaged Improvements
will be less than the Repair Amount, Tenant shall be obligated to
rebuild or repair the Improvements;
(ii) such loss occurs prior to the last ten (10) years of the
Initial Term, or occurs after Tenant has exercised its Renewal Option, but prior
to the last ten (10) years of the Renewal Term:
(a) if such loss is an Insured Loss, whether or nor
21
such loss is a Substantial Loss, Tenant shall be obligated to
rebuild or repair the Improvements;
(b) if such loss is not an Insured Loss, and the cost to
rebuild or repair the damaged Improvements will be less than the
Repair Amount, Tenant shall be obligated to rebuild or repair the
Improvements;
(c) if such loss is not an Insured Loss, and the cost to
rebuild or repair the damaged Improvements will be equal to or
greater than the Repair Amount, Tenant may, but shall not be
obligated to, rebuild or repair the Improvements, and, if Tenant
elects not to rebuild or repair the Improvements, Tenant shall
continue to be obligated to pay the Minimum Rent and Additional
Rent; if, after five (5) years following the loss, the Improvements
have not been rebuilt or repaired, Landlord shall have the right to
notify Tenant of Landlord's intention to terminate the Lease, and
Tenant shall have a period of six (6) months to elect to rebuild or
repair the Improvements, and, if Tenant commences such rebuilding or
repairs within said six (6) month period, the Lease shall not be
terminated.
B. Insurance Proceeds.
(i) If, under any of the circumstances described above, Tenant
elects to rebuild or repair the Improvements, Tenant shall be entitled to the
insurance proceeds for use in such rebuilding or repair, unless Tenant is
obligated pursuant to a Mortgage to pay any such proceeds over to a Mortgagee.
(ii) If the Lease is terminated by Tenant following a casualty loss,
Tenant shall be obligated to remove any and all debris from the Land.
(iii) If Tenant terminates the Lease and does not rebuild or repair
the Improvements, the insurance proceeds shall be allocated between Landlord and
Tenant as follows:
(a) First, an amount necessary to remove any and all debris from the
Land shall be paid to Tenant for such purpose;
(b) The remainder of the insurance proceeds shall be divided between
Landlord and Tenant as follows:
(1) In the event that the Lease is terminated during the
Initial Term and prior to the exercise by Tenant of the Renewal
Option, Tenant shall receive a portion of the insurance proceeds
equal to the total insurance proceeds times a fraction, the
numerator of which is the number of years or partial years which
remains on the Lease Term, and the denominator of which is 45, with
the balance of the insurance proceeds to be paid to Landlord, being
the total insurance proceeds times a fraction, the numerator of
which is the number of years which have expired on the Initial Lease
Term,
22
and the denominator of which is 45;
(2) In the event that the Lease is terminated during the
Renewal Term (or during the Initial Term, but subsequent to the
exercise by Tenant of the Renewal Option), Tenant shall receive a
portion of the insurance proceeds equal to the total insurance
proceeds times a fraction, the numerator of which is the number of
years or partial years which remains on the Lease Term, and the
denominator of which is 70, with the balance of the insurance
proceeds to be paid to Landlord, being the total insurance proceeds
times a fraction, the numerator of which is the number of years
which have expired on the Lease Term, and the denominator of which
is 70.
(iv) For purposes of this Section 10:
(a) "Substantial Loss" shall mean a loss where the Improvements are
damaged to the extent that it would cost more than $2,000,000.00 to repair
or replace same;
(b) "Insured Loss" shall mean any casualty loss which is covered by
an insurance policy either obtained by Tenant or required to be obtained
by Tenant pursuant to the terms of this Lease; and
(c) "Repair Amount" shall mean, for the Stub Period and the First
Lease Year, the sum of $200,000.00 and, for every Lease Year thereafter,
the Repair Amount for the prior Lease Year, increased by one and one-half
percent (1-1/2%).
C. Condemnation.
(i) If, at any time during the Lease Term, the entire Property
and/or Amphitheater is condemned or taken by any body having the power of
eminent domain, then the Lease shall automatically terminate on the date that
the condemning authority takes possession.
(ii) If there is a condemnation or taking of a portion of the
Property which does not result in an automatic termination of this Lease
pursuant to Subsection 10.C(i), and such condemnation or taking will result in a
substantial impairment of Tenant's use and enjoyment of the Property, at any
time up to the date upon which the condemning authority takes possession and for
one hundred eighty (180) days thereafter, Tenant shall have the right to
terminate the Lease by notice to Landlord; provided, however, that upon Tenant's
notice to Landlord of Tenant's intention to terminate the Lease, Landlord shall
have a period of sixty (60) days in which to propose to Tenant that Tenant and
Landlord amend the Lease to substitute other land for all or a portion of the
Land condemned, and to make such other amendments to the Lease as are necessary
or appropriate. If Landlord and Tenant agree to such amendments, all expenses of
same, including, without limitation, survey costs, transfer taxes, engineering
fees, and title insurance premiums, shall be borne equally by Landlord and
Tenant, and Landlord and Tenant shall each pay its own attorneys' fees. Further,
if one or
23
more of the Leased Easements is taken and Tenant does not terminate the Lease,
Landlord agrees that, if Landlord owns property adjoining the Land or otherwise
is in a position to grant to or obtain for Tenant additional easements, Landlord
will cooperate with Tenant in a good faith effort to replace any of the Leased
Easements so taken, provided that (a) Tenant pays all expenses of same,
including, without limitation, survey costs, transfer taxes, engineering fees,
title insurance premiums and Landlord's attorney's fees, and (b) notwithstanding
any provision to the contrary in Subsection 10.C(iii) below, Landlord shall be
entitled to that portion of the total condemnation award allocable to the land
taken, and Tenant shall receive that portion of the total condemnation award
allocable to any Improvements thereon, including, without limitation, paving in
the case of a Leased Easement used as a road and utility lines in the case of a
Leased Easement used as a utility easement, as well as Tenant's leasehold
interest therein, and Tenant shall be entitled to expend all or such portion of
said award for the rebuilding of said road or the replacing of said utility
lines, with any remaining funds to be paid to Landlord.
(iii) If, following a condemnation or taking, the Lease Term is not
terminated, Tenant shall be entitled to any separate award for any loss of
Tenant's leasehold interest, and any consequential or severance damages suffered
by it. Subject to the foregoing, and whether or not the Lease is terminated, the
amount of any awards for any condemnation or taking of the Improvements shall be
divided between Landlord and Tenant using the formula set forth in Subsection
10.B(iii) above, and any awards for any condemnation or taking of the Land and
Tenant's leasehold estate therein shall be made separately to Landlord and
Tenant to provide each with just and adequate compensation for each of their
respective interests therein and such awards shall be made with reference to and
consideration of the termination of Tenant's interest in this Lease.
Section 11. MORTGAGES
A. Tenant's Right to Encumber. Tenant shall have the right from time to
time to encumber by Mortgage or Mortgages all or any portion of Tenant's rights
and interests hereunder including, without limitation, all or any portion of
Tenant's rights and interests in and to the Property. In all respects, however,
any Mortgagee's interests shall be subordinate, inferior, and junior to
Landlord's right, title, privileges, liens and interests as provided in this
Lease.
(i) The term "Mortgage" means any deed to secure debt, deed of
trust, mortgage, security agreement or other instrument in the nature thereof at
any time from time to time constituting a lien upon Tenant's interest in this
Lease and/or Property or Improvements and/or any portion of any of the foregoing
and/or any other rights of Tenant and which is recorded and appropriately
included in the Office of the Recorder of Deeds of Washington
24
County, Pennsylvania.
(ii) "Mortgagee" means a holder of record or, collectively, the
holders of record of a Mortgage or Mortgages.
B. Mortgage Protection. Upon execution and recordation in the Office of
the Recorder of Deeds of Washington County, Pennsylvania, of any Mortgage,
notwithstanding anything to the contrary contained in this Lease, so long as
such recorded Mortgage is a lien on the interest of the Tenant created by this
Lease, Landlord and Tenant agree as follows:
(i) A "Registered Mortgagee" shall be defined as any Mortgagee which
(a) delivers or causes to be delivered to Landlord a notice setting forth the
address for notice purposes of such Mortgagee, (b) causes to be recorded, with
reference to its recorded Mortgage, a recorded Addendum, Notice or statement of
the Mortgagee, such information for notices being contained therein, (c) holds a
recorded Mortgage which is not satisfied, (d) consents in writing to Subsection
11.B(xi) hereof, and (e) has made a loan secured by the Mortgage in an amount
equal to $750,000.00 or more, unless said Mortgagee is a person or entity, other
than MCA Inc. or an Affiliate of MCA Inc., which owns more than fifty percent
(50%) of the voting or decision making power of Tenant, in which event such loan
must be in an amount equal to $2,000,000.00 or more. Any Registered Mortgagee
may change its address by notice to Landlord and by recording an Addendum to the
mortgage, Notice or statement (with or without the joinder of Tenant) containing
the new address. Landlord shall deliver to each Registered Mortgagee, in the
same manner as delivered to Tenant, a copy of any notice required under this
Lease at the time of giving such notice to Tenant. No termination of this Lease
or termination of Tenant's rights of possession of any portion of the Property
or reletting of any portion of the Property by Landlord predicated on the giving
of any notice to Tenant shall be effective as to any rights of any Registered
Mortgagee unless Landlord gives to that Registered Mortgagee notice (or a copy
of the notice to Tenant) as required by this Subsection 11.B(i).
(ii) If Tenant shall default under any of the provisions of this
Lease, each Registered Mortgagee will have the same concurrent grace periods as
are given Tenant for remedying such default or causing it to be remedied, plus,
in each case, an additional period of thirty (30) days after the expiration of
Tenant's period to cure, and such thirty (30) day period ("Cure Period") to cure
shall not start until Landlord has served a notice or a copy of a notice of
default upon such Registered Mortgagee.
(iii) If Tenant shall default under any of the provisions of this
Lease, each Registered Mortgagee, without prejudice to its rights against
Tenant, shall have the right to cure such default within the Cure. Period
whether the same consists of the failure to pay rent or the failure to perform
any other matter or thing which Tenant is hereby required to do or perform, and
Landlord shall accept such performance on the part of any Registered Mortgagee
as
25
though the same had been done or performed by Tenant; for such purpose, Landlord
and Tenant hereby authorize any Registered Mortgagee to enter upon the Property
and to exercise any of the Tenant's rights and powers under this Lease,
including those set forth in Subsection 12.B(ii) below.
(iv) If Tenant shall default under any of the provisions of this
Lease, Landlord shall not terminate or take any action to effect a termination
of this Lease or reenter, take possession of or relet the Property or similarly
enforce performance of this Lease in any manner if, within the Cure Period, any
Registered Mortgagee either (i) cures such default; or (ii) if such default
cannot reasonably be cured within the Cure Period, promptly commences and then
proceeds with reasonable diligence to cure such default; or (iii) if physical
possession of the Property is required to cure such default, promptly commences
and then proceeds with reasonable diligence to acquire the interest of Tenant by
foreclosure or otherwise and thereafter performs all other obligations of Tenant
under this Lease. The provisions of the prior sentence shall apply only if any
Registered Mortgagee shall have fully cured any default in the payment of any
monetary obligation of Tenant within the Cure Period and shall continue to pay
currently such monetary obligations as and when the same are due. If a default
is such that it cannot be reasonably cured by a Registered Mortgagee without
possession of the Property, then Landlord shall not terminate or take any action
to effect a termination of this Lease or reenter, take possession of or relet
the Property, or similarly enforce performance of this Lease in any manner if,
within the Cure Period, any Registered Mortgagee shall promptly commence and
then proceed with reasonable diligence to acquire the interest of Tenant by
foreclosure or otherwise; provided, however, that the provisions of this
sentence shall apply only if any Registered Mortgagee shall have fully cured any
default in the payment of any monetary obligation of Tenant within the Cure
Period and shall continue to pay currently such monetary obligations as and when
the same are due and, after gaining possession of the Property, any such
Registered Mortgagee performs all other obligations of Tenant here-under as and
when the same are due and, subject to Subsection 11.D, agrees in writing to be
bound as Tenant under this Lease.
(v) If this Lease is terminated by Landlord on account of a default
by Tenant or if Tenant's interest under this Lease shall be sold, assigned or
transferred pursuant to the exercise of any remedy of any Registered Mortgagee,
or pursuant to judicial proceedings, and if (a) no rent or other charges shall
then be due and payable by Tenant under this Lease, and (b) any Registered
Mortgagee shall have cured any default of Tenant under this Lease of the type
capable of cure by any such Registered Mortgagee, then Landlord, within thirty
(30) days after receiving a request therefor, which shall be given within thirty
(30) days after such termination or transfer, will execute and deliver to any
Registered Mortgagee (if there is more than one Registered Mortgagee, the
Registered Mortgagee of the highest priority shall be entitled to
26
such new Lease), its nominee or the purchaser at a foreclosure sale, or a
transferee in lieu thereof, a new Lease for the Property for the remainder of
the Lease Term of this Lease containing the same covenants, agreements, terms,
provisions and limitations contained herein. Any new Lease made pursuant to this
Subsection 11.B(v) shall have the same priority as this Lease. All liens,
charges or other consensual encumbrances on the interest of the Landlord in the
Property which are created by Landlord shall contain express provisions to the
effect that (1) such lien, charge or encumbrance shall be subject to such new
Lease to the same extent as such lien, charge or encumbrance was to this Lease,
and (2) the mortgagee or other beneficiary thereof shall, upon request, confirm
to Tenant and any Registered Mortgagee such status.
(vi) If any Registered Mortgagee is prohibited by any process or
injunction issued by any court or by reason of any action by any court having
jurisdiction of any bankruptcy or insolvency proceeding involving the Tenant or
the Property from commencing or prosecuting foreclosure or other appropriate
proceedings in the nature thereof, the Cure Period specified above for
commencing or prosecuting such foreclosure or other proceedings shall be
extended for the period of such prohibition; provided, however, that any
applicable Registered Mortgagee shall have fully cured any default of payment of
any monetary obligations of Tenant under this Lease and shall continue to pay
currently such monetary obligations as and when the same fall due and there are
no other uncured defaults, except as such Registered Mortgagee is reasonably
prohibited from or incapable of curing.
(vii) If a default under any Mortgage shall have occurred, Landlord
shall not object to any Registered Mortgagee exercising, with respect to the
Property, any right, power or remedy under the Mortgage which is not in conflict
with the provisions of this Lease.
(viii) This Lease may be assigned, without the consent of the
Landlord, to or by any Registered Mortgagee or its nominee, pursuant to
foreclosure or similar proceedings, or pursuant to the sale, assignment or other
transfer of this Lease in lieu thereof, or pursuant to the exercise of any other
right, power or remedy of any Registered Mortgagee. The Registered Mortgagee and
any assignee of this Lease, and any purchaser or transferee of the type
described above in this Subsection 11.B(viii), is herein referred to as a
"Mortgagee Party". No such assignment shall release Tenant.
(ix) No surrender by Tenant to Landlord of any interest in this
Lease (except a surrender upon expiration of the Lease Term) and no surrender by
Tenant of the Property or any part thereof, or any interest therein, and no
termination or rejection of this Lease by Tenant, shall be valid or effective,
and neither this Lease, nor any of the terms hereof, may be amended, modified,
changed, rejected or cancelled by Tenant without the prior written consent of
each Registered Mortgagee.
(x) Notwithstanding any provisions hereof to the contrary, if Tenant
exercises its right, as set forth in Subsection
27
12.B(ii) below, to institute appropriate legal proceedings to dispute the
existence of a default, and should the Court determine that a default exists and
Tenant does not cure same, a Registered Mortgagee will have an additional period
of thirty (30) days to cure such default following such Court determination, as
set forth in Subsection 11.B(ii) above, but said Registered Mortgagee will not
have the right to again institute legal proceedings regarding the same default,
any such Registered Mortgagee being bound by the judgment of the Court.
(xi) Landlord, Tenant, and each Registered Mortgagee, as a condition
of becoming a Registered Mortgagee, hereby agree that all lawsuits hereunder
shall be filed in the Court of Common Pleas of Washington County, Pennsylvania
or, if the law permits, the Federal District Court for the District in which the
Property is located (said local or Federal court, as applicable, hereinafter
called the "Court"), and shall upon demand by any party submit to the Court any
document reasonably required by such adverse party to satisfy the Court
concerning its jurisdiction.
C. No Merger. There shall be no merger of this Lease nor of any interest
in this Lease nor of the interest created hereby with the interest of Landlord
or the fee estate of the Property by reason of the fact that this Lease or such
interest therein or such interest of Landlord may be directly or indirectly held
by or for the account of any person who shall hold directly or indirectly, in
whole or in part, the interest of Landlord or the fee estate in the Property, or
any interest in either such interest or estate.
D. Limitation on Personal Liability of Mortgagee Parties. Notwithstanding
the provisions of Section 14 below regarding assignment and subletting, no
Mortgagee Party shall be or become personally liable to Landlord as an assignee
of this Lease or otherwise unless it expressly assumes such liability by written
instrument, in which event the Mortgagee Party's liability shall be limited to
the period of time it is the owner of the interest created by this Lease, and no
assumption shall be inferred from or result from foreclosure or other
appropriate proceedings in the nature thereof or as the result of any other
action or remedy provided for by such Mortgage or other instrument or from a
conveyance from Tenant pursuant to which the purchaser at foreclosure or grantee
shall acquire the rights and interest of Tenant under the terms of this Lease;
provided that nothing in this Subsection 11.D shall be deemed to prevent
Landlord from exercising its remedies in accordance with Section 12 (as
qualified by this Section 11) if the obligations of Tenant under this Lease are
not subsequently performed as provided in this Lease. The provisions of this
Subsection 11.D shall apply notwithstanding that any Mortgage may provide for a
present assignment of Tenant's rights under this Lease to the Mortgagee.
E. Waiver of Landlord's Lien. Landlord hereby subordinates all right,
title and interest in and to any Landlord's lien,
28
statutory or otherwise, upon the Tenant's personal property or fixtures and
arising by virtue of this Lease, to any bona fide Mortgage held by any
Registered Mortgagee.
F. Mortgagee Benefitted. The provisions of this Section 11 are for the
benefit of, and are to be enforceable by, any bona fide Registered Mortgagee.
Section 12. DEFAULT
A. Interest Conditional. The Tenant's interest created by this Lease is
granted on the condition that should any Event of Default occur and be
continuing, then Landlord may terminate this Lease and Tenant's interest as
provided in this Section 12.
B. Events of Default by Tenant. The following conditions and events shall
constitute "Events of Default" by Tenant for purposes of this Lease:
(i) Tenant fails to make or pay any rents, fees, taxes, charges or
other payments required hereunder when due to Landlord or others, within thirty
(30) days after receipt of written notice from Landlord of non-payment thereof;
(ii) Tenant fails to keep, perform and observe each and every
promise, covenant, warranty and condition set forth in this Lease on its part to
be kept, performed or observed for sixty (60) days after receipt of written
notice of such failure from Landlord, except where fulfillment of such
obligation requires activity over a period of time and Tenant has commenced to
perform whatever may be required within thirty (30) days after receipt of such
written notice from Landlord and continues such performances without
interruption, except for causes beyond its control. Notwithstanding the
foregoing, if Tenant, within forty-five (45) days after the receipt of such
written notice of default, shall in good faith dispute the existence of any such
default by both written notice to Landlord and shall also in good faith
institute appropriate legal proceedings in the Court, naming each Registered
Mortgagee as a party and requesting declaratory relief or another appropriate
remedy for the resolution of such dispute, then, so long as such proceedings
have not been finally determined and Tenant is diligently prosecuting same,
Landlord shall not have the right to terminate this Lease or exercise any other
remedy of Landlord hereunder on account of the alleged default; provided,
however, that the foregoing provisions of this Subsection 12.B(ii) shall not be
construed to preclude a Court of competent jurisdiction from entering temporary
orders or otherwise exercising its equitable powers to protect the interests of
the parties during the pendency of the above described proceedings. If it shall
be finally determined in such proceedings that Tenant is in default, then the
time within which Tenant shall have to remedy the same as set forth above shall
be computed from the date of such determination but Tenant and each Registered
Mortgagee shall have
29
no further right under this Subsection 12.B(ii) to dispute such default. No such
dispute by Tenant or the filing or prosecution of any such proceedings shall
operate to relieve Tenant from or permit Tenant to defer the performance of any
of its obligations hereunder not specifically under dispute, and Tenant shall
not be relieved of any liability to Landlord for actual damages (including any
consequential damages to the extent Landlord promptly notifies Tenant of the
same as soon as Landlord could reasonably be expected to be aware that such
damages may occur) suffered by Landlord if Tenant contests the existence of the
Event of Default by appropriate proceedings as provided above but fails to
prevail in such proceedings. If the Court in which such proceedings have been
instituted determines that such proceedings have not been brought by Tenant in
good faith, such court shall make an award of damages therefor, including
attorney's fees, costs and all expenses.
(iii) The levy of any attachment or execution, or the appointment of
any receiver, or the execution of any other process of any court of competent
jurisdiction which is not vacated, dismissed or set aside within a period of
sixty (60) days from its inception and which interferes or may interfere with
Tenant's use of the Amphitheater or with Tenant's operations under this Lease.
(iv) Tenant becomes insolvent, or takes the benefit of any present
or future insolvency statute, or makes a general assignment for the benefit of
creditors, or files a voluntary petition in bankruptcy, or a petition or answer
seeking an arrangement for reorganization or for the readjustment of
indebtedness under the federal bankruptcy laws or under any other law or statute
of the United States, or of any state law, or consents to the appointment of a
receiver, trustee or liquidator for all or substantially all of its property
located within the Property.
(v) By order or decree of Court, Tenant is adjudged bankrupt, or an
order is made approving a petition filed by any of the creditors or stockholders
of Tenant seeking the reorganization or the readjustment of its indebtedness
under the federal bankruptcy laws, or under any law or statute of the United
States, or any state thereof.
(vi) A petition under any part of the federal bankruptcy laws or an
action under any present or future insolvency law or statute is filed against
Tenant and is not dismissed within one hundred twenty (120) days from the date
of filing.
(vii) By, pursuant to, or under authority of (a) any legislative
act, resolution or rule, or (b) any order or decree of any court, governmental
board, agency or officer having jurisdiction, a receiver, trustee or liquidator
takes possession or control of all or substantially all of the property of
Tenant, and such possession or control continues in effect for a period of sixty
(60) days from the date of such possession or control.
(viii) If a default under any Mortgage shall have occurred, Tenant
shall not object to any Registered Mortgagee exercising, with respect to the
Property, any right, power, or remedy under the Mortgage which is not in
conflict with the
30
provisions of this Lease.
C. Remedies of Landlord. Upon the occurrence of any Event of Default by
Tenant, and, subject to the provisions of Subsection 12.B(ii) hereinabove, the
continuance of same beyond the applicable notice period, Landlord shall have the
option to pursue any one or more of the following remedies, in addition to any
remedy provided by law, provided Tenant has been given the proper notice as
required in Section 12.B above:
(i) Terminate this Lease, in which event Tenant shall immediately
surrender the Property to Landlord. Tenant shall pay to Landlord on demand the
amount of all rent due and owing to Landlord for the period prior to such
termination and all damage and loss Landlord may suffer by reason of such
termination.
(ii) Enter upon and take possession of the Property without
terminating this Lease. Landlord may relet the Property and receive the rent
therefor. Tenant agrees to pay to Landlord any deficiency that may arise.
Landlord's reasonable expenses, including any brokerage commission, attorney's
fees, remodeling expenses and other reasonable costs of reletting, shall be
subtracted from the amount of rent received under such reletting.
(iii) Enter upon the Property without terminating this Lease, and
perform Tenant's obligations under the terms of this Lease. Tenant agrees to pay
Landlord for expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease. Landlord shall not be liable for any
damages resulting to the Tenant from such action.
(iv) Declare due and owing all Rent due or to become due under this
Lease. Such acceleration shall include all Minimum Rent, all Fixed Rent, and all
Additional Rent. Additional Rent may be estimated by Landlord. No future
Percentage Rent is to be included. However, all Percentage Rents after suit and
prior to the entry of judgment hereunder shall be included to the extent that it
increases the amount due hereunder.
(v) Bring an action against Tenant for specific performance of
Tenant's obligations under this Lease.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law or
in equity so long as same are not inconsistent with the provisions of this
Lease. All of Landlord's rights hereunder may be exercised concurrently or
consecutively at Landlord's option. However, Landlord, in exercising its rights
as set forth above, shall be required to reasonably mitigate its damages in
accordance with the laws of the Commonwealth of Pennsylvania.
D. Events of Default by Landlord. The following conditions and events
shall constitute "Events of Default" by Landlord for purpose of this Lease:
(i) Landlord fails to keep, perform and observe each and
31
every promise, covenant, warranty and condition set forth in this Lease on its
part to be kept, performed or observed for sixty (60) days after receipt of
written notice of such failure from Tenant, except where fulfillment of such
obligation requires activity over a period of time and Landlord has commenced to
perform whatever may be required within thirty (30) days after receipt of such
written notice from Tenant and continues such performance without interruption,
except for causes beyond its control. Notwithstanding the foregoing, if
Landlord, within forty-five (45) days after the receipt of such written notice
of default, shall in good faith dispute the existence of any such default by
both written notice to Tenant and shall also in good faith institute appropriate
legal proceedings in the Court, and request declaratory relief or another
appropriate remedy for the resolution of such dispute, then, so long as such
proceedings have not been finally determined and Landlord is diligently
prosecuting same, Tenant shall not have the right to terminate this Lease or
exercise any other remedy of Tenant hereunder on account of the alleged default;
provided, however, that the foregoing provisions of this Subsection 12.D(i)
shall not be construed to preclude a Court of competent jurisdiction from
entering temporary orders or otherwise exercising its equitable powers to
protect the interests of the parties during the pendency of the above described
proceedings. If it shall be finally determined in such proceedings that Landlord
is in default, then the time within which Landlord shall have to remedy the same
as set forth above shall be computed from the date of such determination but
Landlord shall have no further right under this Subsection 12.D(i) to dispute
such default. No such dispute by Landlord or the filing or prosecution of any
such proceedings shall operate to relieve Landlord from or permit Landlord to
defer the performance of any of its obligations hereunder not specifically under
dispute, and Landlord shall not be relieved of any liability to Tenant for
actual damages (including any consequential damages to the extent Tenant
promptly notifies Landlord of the same as soon as Tenant could reasonably be
expected to be aware that such damages may occur) suffered by Tenant if Landlord
contests the existence of the Event of Default by appropriate proceedings as
provided above but fails to prevail in such proceedings. If the Court in which
such proceedings have been instituted determines that such proceedings have not
been brought by Landlord in good faith, such court shall make an award of
damages there for, including attorney's fees, costs, and all expenses.
Notwithstanding any other provision contained in this Lease, if the nature of
Landlord's default is such that the failure to immediately cure same would
result in Tenant being unable to utilize the Property for the operation of the
Amphitheater and related facilities, then Tenant shall have the right, at
Tenant's option and with prior notice to Landlord, to immediately cure said
default on Landlord's behalf, and Landlord shall reimburse to Tenant any
expenses reasonably incurred by Tenant after Landlord's default within fifteen
(15) days after Landlord's receipt of a statement from Tenant setting forth such
expenses.
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(ii) The levy of any attachment or execution, or the appointment of
any receiver, or the execution of any other process of any court of competent
jurisdiction which is not vacated, dismissed, or set aside within a period of
sixty (60) days from its inception and which interferes or may interfere with
Landlord's ability to perform its obligations under this Lease.
(iii) Landlord becomes insolvent, or takes the benefit of any
present or future insolvency statute, or makes a general assignment for the
benefit of creditors, or files a voluntary petition in bankruptcy, or a petition
or answer seeking an arrangement for reorganization or for the readjustment of
indebtedness under the federal bankruptcy laws or under any other law or statute
of the United States, or of any state law, or consents to the appointment of a
receiver, trustee or liquidator for all or substantially all of its property.
(iv) By order or decree of Court, Landlord is adjudged bankrupt, or
an order is made approving a petition filed by any of the creditors or
stockholders of Landlord seeking the reorganization or the readjustment of its
indebtedness under the federal bankruptcy laws, or under any law or statute of
the United States, or any state thereof.
(v) A petition under any part of the federal bankruptcy laws or an
action under any present or future insolvency law or statute is filed against
Landlord and is not dismissed within one hundred twenty (120) days from the date
of filing.
(vi) By, pursuant to, or under authority of (a) any legislative act,
resolution or rule, or (b) any order or decree of any court, governmental board,
agency or officer having jurisdiction, a receiver, trustee or liquidator takes
possession or control of all or substantially all of the property of Landlord,
and such possession or control continues in effect for a period of sixty (60)
days from the date of such possession or control.
(vii) Landlord fails to timely pay all state corporate and federal
income taxes, and any and all other taxes, assessments, or impositions of any
kind whatsoever, assessed or imposed against, and becoming due and payable by
Landlord to any federal, state or local governmental entity or agency or
division thereof, to the extent that such obligation constitutes a lien on any
or all of the Property.
E. Remedies of Tenant. Upon the occurrence of any Event of Default by
Landlord, and, subject to the provisions of Subsection 12.D(i) hereinabove, the
continuance of same beyond the applicable notice period, Tenant shall have the
option to pursue any one or more of the following remedies, in addition to any
remedy provided by law or in equity, provided Landlord has been given the proper
notice as required by Subsection 12.D above:
(i) Terminate this Lease, preserving Tenant's rights to pursue any
and all remedies provided by law or in equity, including, but not limited to,
actions for damages or mandamus, and claims for reliance damages, such as lost
revenues, by reason
33
of the default by Landlord hereunder, in which event Tenant shall immediately
surrender the Property to Landlord, and all of Tenant's obligations under this
Lease, including the obligation to pay rent, shall terminate. Landlord shall pay
to Tenant on demand the amount of all loss and damage which Tenant may suffer by
reason of such termination.
(ii) Perform the Landlord's obligations under this Lease which were
not performed by Landlord, in which event Landlord shall reimburse Tenant for
any and all charges incurred by Tenant as the result of Tenant's performance of
Landlord's obligations within thirty (30) days after Landlord's receipt of a
statement and/or invoice from Tenant setting forth the type and amounts of such
charges.
(iii) Bring an action against Landlord for specific performance by
Landlord of its obligations under this Lease.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
other remedies herein provided or any other remedies provided by law or in
equity so long as same are not inconsistent with the provisions of this Lease.
All of Tenant's rights hereunder may be exercised concurrently or consecutively
at Tenant's option.
Section 13. TENANT FIRST REFUSAL AND CONSULTATION RIGHTS
A. Tenant's Right. During the Lease Term, Tenant shall have the right of
first refusal to purchase the Property.
B. Procedure. Before accepting a bona fide offer with respect to any
transaction which would result in the sale or transfer to a third party of an
interest of Landlord in the Property, except for coal, mining rights, oil, gas,
or drilling rights, or a transfer of the stock of Landlord which would result in
a transfer of control of Landlord to another person or entity (it being agreed
that a transfer of stock of an Affiliate of Landlord is not intended to be
covered by the provisions of this Subsection 13.B), Landlord shall first notify
Tenant of the offer and forward to Tenant either (i) a copy of said offer, which
offer shall include all terms of the proposed sale or transfer, or (ii) an
outline of the important terms of such proposed sale or transfer, including the
identity of the purchaser or transferee and such party's representation and
warranty (for Tenant's reliance as well as Landlord's reliance) that such
purchaser or transferee is not acting on behalf of any other party and does not
intend to immediately resell the Property, or for whom such purchaser or
transferee is acting or to whom such purchaser or transferee intends to resell
the Property, the purchase price, terms of seller financing, if applicable,
allocation or proration of closing costs or expenses, time periods, and any
unusual terms. Landlord and Tenant each agree to hold in confidence all such
information furnished by any proposed purchaser or transferee. Tenant shall have
thirty (30) days following receipt of such written notification within which to
elect to acquire the interest in the
34
Property which is the subject of the transaction upon the same terms and
conditions (or upon any alternative terms and conditions, if any agreed to by
Landlord and Tenant) specified in the Landlord's notice. Notwithstanding any
other provision herein contained, Landlord and Tenant hereby agree that, in the
event any offer received by Landlord covers not only the Property but also an
interest in all or any portion of the Landlord's Lands or any other property, it
shall not be a condition to Tenant's right to acquire the Landlord's interest in
the Property that Tenant also acquire a portion of Landlord's Lands or any other
property that is also subject to the offer, but rather, Tenant shall be required
to acquire only Landlord's interest in the Property upon the same terms and
conditions (equitably prorated as to the Property) as are contained in any offer
to be accepted by Landlord. Landlord and Tenant further expressly agree that, in
the event any offer received by Landlord provides for non-cash consideration to
be paid to Landlord which Tenant is unable to furnish (such as a specific tract
of land to be exchanged for the Property), Tenant shall be entitled to offer
cash in lieu of such substitute consideration, in an amount equal to the fair
market value of such non-cash consideration. Upon Tenant's election to so
acquire the interest in the Property, Tenant shall have the right to designate
any one (1) or more of Tenant's Affiliates (hereinafter defined) to take title
to the interest being acquired. If Tenant does not so notify Landlord of
Tenant's election to purchase the interest in the Property, Landlord shall be
free to complete the transaction with the third party specified in the Notice
upon the terms as specified in Landlord's Notice, or upon terms and conditions
which are more favorable, as a whole, to Landlord than such terms and
conditions, as a whole, which were specified in the notice to Tenant; provided,
however, that if such transaction does not close within nine (9) months from the
date upon which Landlord gives notice to Tenant of such transaction, the same
notice procedure shall again be required prior to Landlord's conveyance of any
interest in the Property. Further, Tenant expressly agrees that Landlord shall
not be obligated to send another notice to Tenant each time, in the course of
negotiations with a prospective purchaser or transferee, minor changes in the
terms of the transaction are agreed upon which were not included in Landlord's
notice to Tenant, so long as the terms of the final transaction are
substantially the same as, or are more favorable, as a whole, to Landlord, as
the terms and conditions as set forth in Landlord's notice to Tenant. Tenant's
unwillingness or inability to exercise its right of first refusal as to any
particular transaction shall not constitute a waiver of Tenant's right of first
refusal for any subsequent transactions affecting the Property, and Tenant shall
continue to have such right regardless of the number of successive transactions
which occur as to which Tenant does not exercise its right. The parties
expressly reserve all remedies, judicial or otherwise, if a dispute should arise
concerning whether the terms and conditions of any transaction with any third
party under this Subsection 13.B are, in fact, substantially the same as or more
favorable to Landlord
35
than those specified in any notice to Tenant. In the event Tenant elects not to
exercise its right of first refusal as to any particular transaction, the terms
and provisions of this Lease shall nevertheless remain in full force and effect,
and any purchaser or transferee of an interest in the Property shall, as a
condition to said purchase or transfer, be notified by Landlord of the existence
and enforceability of this Lease.
Section 14. TENANT CONCESSIONS, SUBLETTING AND ASSIGNMENT
A. Concessions, Subletting and Assignments. Tenant shall have the
unrestricted right at any time to grant concessions and/or to sublease all or
any portion of the Property and/or to assign this Lease to any party, provided
that Tenant (i) so notifies Landlord, and (ii) shall not be relieved of any
obligation under this Lease.
B. Other Assignments by Tenant.
(i) This Lease may be assigned by Tenant, upon thirty (30) days'
prior written notice to Landlord, to an assignee ("Assignee") (a) whose net
worth (exclusive of the value of this Lease) is at least $2,500,000.00, (b) who
has the expertise to carry out all of Tenant's obligations hereunder, and (c)
who accepts all the terms and conditions of this Lease and assumes all of
Tenant's duties, covenants and obligations under this Lease (such acceptance and
assumption to be expressly stated in the assignment, the notice to Landlord or
other written instrument signed by the Assignee).
(ii) In the event that the Lease is so assigned to an Assignee who
qualifies in accordance with Subsection 14.B(i) above, then Tenant's obligations
to fulfill all duties and obligations hereunder shall cease, and the Assignee's
obligations shall commence, as of the effective date of such assignment;
provided, however, that Tenant shall not be relieved from any obligations,
duties or liabilities which have accrued hereunder prior to the date of such
assignment; and provided further that, for a period of three (3) months
following the effective date of such assignment, the Assignee shall be liable
for all obligations of Tenant under this Lease. If Landlord intends to hold the
Assignee liable for any pre-assignment default, Landlord agrees to so notify
Tenant and Assignee, specifying in detail the claimed pre-assignment default.
(iii) The written notice to Landlord described above shall be
accompanied by audited financial statements of the Assignee, prepared in
accordance with generally accepted accounting principles, containing the
certification of the certified public accountant, given in accordance with the
then current standards of the American Institute of Certified Public
Accountants, and certified by the Assignee as accurate, complete, correct and
having been prepared in accordance with generally accepted accounting
principles.
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(iv) The delivery of the written notice to Landlord described above
also shall be the agreement by the Assignee that the Assignee (a) shall be bound
by all of the terms of this Lease, and (b) has the necessary expertise as
required by Subsection 14.B(i) above.
Section 15. LANDLORD'S REPRESENTATIONS, WARRANTIES AND COVENANTS
A. Organization. Landlord hereby represents and warrants to Tenant that it
is a corporation duly organized under the laws of the Commonwealth of
Pennsylvania, that it has full corporate power and authority to enter into this
Lease and to engage in the transactions contemplated hereby, and that the
joinder, consent or approval of no other person or entity is required to
properly consummate the transactions herein contemplated.
B. Warranty of Title. Landlord hereby represents and warrants to Tenant
that, as of the Effective Date hereof, the Landlord has good and indefeasible
fee simple title in and to the Landlord's Lands, subject to the matters set
forth in Exhibit "E", and that this Lease has priority over any and all liens
against Landlord's Lands. Landlord agrees to cause the holder of any lien
against Landlord's Lands to release such lien or to execute a subordination
agreement, in form reasonably satisfactory to Tenant, for the benefit of Tenant,
subordinating such lien to this Lease. Landlord shall have the right to encumber
the Land or any portion thereof, so long as the interest of any such lienholder
remains subordinate to this Lease.
C. Binding Obligation. Landlord hereby represents and warrants that this
Lease is a valid obligation of the Landlord and is binding upon the Landlord in
accordance with the terms hereof.
D. Landlord's Work. Landlord represents and warrants that it has the
capability to fulfill its obligations relative to the Landlord's Work pursuant
to the terms of this Lease and that Landlord will be able to fulfill such
obligations in a timely manner and without delay to the construction of the
Amphitheater.
E. Hazardous Wastes.
(i) Landlord represents and warrants that, to the best of its
knowledge, the Property is not currently in violation of or subject to any
investigation by any governmental authority under any applicable laws, rules
and/or regulations pertaining to health or to the environment and, further,
represents and warrants that, to the best of its knowledge, no hazardous wastes
have been disposed of or otherwise released on, to or under the Property and
Landlord shall not dispose of or otherwise release on, to or under the Property
subsequent to the signing of this Lease any such hazardous wastes. For purposes
of this Subsection 15.E, "hazardous wastes" shall be defined to be those
substances listed in
37
Identification and Listing of Hazardous Wastes, 40 C.F.R. ss.ss.261.30, 261.31,
261.32 and 261.33 (1987), as amended ("Federal Statute"), as of the date of this
Lease.
(ii) If any such hazardous wastes have been disposed of or otherwise
released on, to or under the Property prior to the Effective Date hereof, then
Landlord hereby agrees that Tenant shall not be liable to Landlord or Landlord's
employees, agents, subagents, contractors or any other person whatsoever, and
Landlord will indemnify, defend and hold harmless Tenant of and from all fines,
suits, claims, demands, losses and actions (including any and all attorneys'
fees) for any injury to persons or damage to or loss of property on or about the
Property arising in connection with any condition of the Property existing prior
to the Effective Date of this Lease, which violates any laws, ordinances, rules
and regulations of any governmental entities, as same currently exist, which in
any way affect the Property, resulting from any hazardous wastes which have been
disposed of or otherwise released on, to or under the Property, and Landlord
shall comply with any of said laws, ordinances, rules and regulations requiring
the remedy of any such pre-existing condition.
(iii) If any substance has been disposed of or otherwise released
on, to or under the Property prior to the Effective Date hereof which, as of the
Effective Date of this Lease, is not included in the Federal Statute, but which
is subsequently included in the Federal Statute (or if, during the ten (10) year
period following the Effective Date hereof, the federal laws are amended such
that an equivalent list of hazardous wastes is no longer contained therein, but
is set forth in another federal statute or regulation, then reference to
"Federal Statute" shall mean such other federal statute or regulation), but only
for a period of ten (10) years from the Effective Date of this Lease, Landlord
hereby agrees that Tenant shall not be liable to Landlord or Landlord's
employees, agents, subagents, contractors or any other person whatsoever, and
Landlord will indemnify, defend and hold harmless Tenant of and from all fines,
suits, claims, demands, losses and actions (including any and all attorneys'
fees) for any injury to persons or damage to or loss of property on or about the
Property arising in connection with any condition of the Property existing prior
to the Effective Date of this Lease, which violates any laws, ordinances, rules
and regulations of any governmental entities, as same currently exist, which in
any way affect the Property, resulting from any such hazardous wastes which have
been disposed of or otherwise released on, to or under the Property, and
Landlord shall comply with any of said laws, ordinances, rules and regulations
requiring the remedy of any such pre-existing condition.
(iv) After the expiration of such ten (10) year period, if any
substance not included in the Federal Statute is determined to have been
disposed of or otherwise released on, to or under the Property prior to the
Effective Date hereof, and the presence of such substance shall cause Tenant to
be unable to utilize the Property for Tenant's intended purposes, Tenant may
notify Landlord
38
of such condition. If Landlord is unable or unwilling to remedy such condition
within sixty (60) days of such notice, Tenant shall be entitled to terminate
this Lease upon thirty (30) days' prior written notice to Landlord.
Section 16. TENANT'S REPRESENTATIONS, WARRANTIES AND COVENANTS
A. Organization. Tenant hereby represents and warrants to Landlord that it
is a corporation duly authorized under the laws of the State of Delaware, that
it has full corporate power and authority to enter into this Lease and to engage
in the transactions contemplated hereby, and that the joinder, consent or
approval of no other person or entity is required to properly consummate the
transactions herein contemplated.
B. Binding Obligation. Tenant represents and warrants that this Lease is a
valid obligation of the Tenant and is binding upon the Tenant in accordance with
the terms hereof.
C. Pittsburgh Symphony. During the first two (2) years of the Lease Term,
Tenant shall use its reasonable efforts to obtain performances of the Pittsburgh
Symphony at the Amphitheater, provided that Tenant shall have no obligation to
expend any sums of money whatsoever in its efforts to obtain such performances.
D. Tenant's Improvements. Tenant represents and warrants that it has the
capability to fulfill its obligations relative to the Amphitheater pursuant to
the terms of this Lease and that it will be able to fulfill such obligations in
a timely manner and without delay to the construction of the Amphitheater and
other Improvements.
E. Taxes and Assessments. During the Lease Term, Tenant shall timely pay
all state, corporate and federal income taxes, and any and all other taxes,
assessments or impositions of any kind whatsoever, assessed or imposed against
and becoming due and payable by Tenant to any federal, state or local
governmental entity, or any agency or division thereof.
F. Repairs. Tenant shall make, at Tenant's expense, all reasonably
necessary repairs to the Property.
G. Waste and Nuisance. Tenant will not commit any waste on the Property.
Tenant will not allow any nuisance to exist on the Property; provided, however,
that Landlord agrees that, for purposes of this Lease, so long as Tenant is not
violating the provisions of Subsection 2.A regarding use of the Property, and is
conducting its business as is customarily done by other parties conducting
similar operations, Tenant shall not be in default under this Subsection 16.G.
Further, if any third party makes any claims against Tenant alleging a nuisance
or similar cause of action, regardless of the outcome of any such proceedings,
Tenant shall not
39
be in default under this Subsection 16.G unless Tenant is deliberately violating
an injunction issued by a court of appropriate jurisdiction; provided, however,
that, if a governmental body or agency makes any claims against Tenant alleging
a nuisance or similar cause of action, so long as Tenant is contesting or
appealing in good faith any governmental order or judgment of a Court, Tenant
shall not be in default under this Subsection 16.G, but once a final
determination or non-appealable judgment is rendered against Tenant, Tenant
agrees it will comply with the terms thereof.
H. Zoning. Tenant, at Tenant's expense, will comply with all zoning and
changes in zoning during the Lease Term.
I. Hazardous Material. To the extent prohibited by law, Tenant shall not
permit any hazardous materials or wastes to be deposited upon the Land or
released onto, on, or under the Land.
Section 17. CESSATION OF OPERATIONS
Tenant shall have the absolute right at any time during the Lease Term to
cease operations of any kind, so long as Tenant shall continue to pay to
Landlord the full amount of the Minimum Rent due to Landlord in accordance with
Subsection 3.A of this Lease, together with all Additional Rent, Fixed Rent, and
other sums becoming due to Landlord hereunder, and further provided that Tenant
otherwise complies with all the terms and provisions of this Lease.
Section 18. MISCELLANEOUS
A. Waiver. The waiver by either party of any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or of any other term,
covenant or condition herein contained.
B. No Benefits to Others. This Lease does not confer any rights or
benefits upon any person or entity other than Landlord and Tenant and, to the
extent consistent with this Lease, their respective successors and assigns.
There are no third party beneficiaries.
C. Entire Agreement. This Lease sets forth all the covenants, promises,
agreements, conditions and understandings between Landlord and Tenant, oral or
written, relating to the subject matter of this Lease. Neither party has made
any representations or promises not expressly contained in this Lease. No
subsequent alterations, amendments, changes or additions to this Lease shall be
binding upon Landlord and Tenant unless reduced to writing and signed by each
party.
40
D. Force Majeure. If either party hereto shall be delayed or hindered in
or prevented from the performance of any act required hereunder by reason of
unavoidable delays caused by fire, catastrophe, acts of God, strikes, lockouts,
labor troubles, inability to procure materials, failure of power, restrictive
governmental laws or regulations, riots, insurrection, civil commotion, war or
other reason of a like nature not the fault of the party delayed in performing
work or doing acts required under the terms of this Lease, then performance of
such act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay.
Neither party shall in any event be liable in damages or otherwise, nor
shall the other party be released from any obligations hereunder because of the
interruption of any service, or a termination, or disturbance (except to the
extent, if any, expressly provided elsewhere in this Lease) attributable to
strike, lockout, breakdown, accident, war, or other emergency, order or
regulation of or by any governmental authority, failure of supply, inability to
obtain supplies, parts or employees, or any cause beyond such party's reasonable
control.
The provisions of this Subsection shall not operate to excuse Tenant from
the prompt payment of rents, or from any other payments required from either
party to the other by the terms of this Lease.
E. Notices; Approvals and Consents.
(i) All notices required or permitted to be given under this Lease
shall be in writing and shall be delivered in person, by courier service, or by
certified or registered mail, postage prepaid, return receipt requested, to the
parties at the addresses set forth hereinbelow or such other address as either
party may from time to time designate in writing to the other.
The current addresses for notices are as follows:
If to Landlord: Crossroads Properties, Incorporated
c/o Starvaggi Industries, Incorporated
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxxxxxx 00000
Attention: G. Xxxxxxx Xxxx
With a copy to: XxXxxxxxx, Xxxxxxxx & Xxxxxxxx
000 Xxxxxxxxxx Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Xx.
If to Tenant: Pace Entertainment Group, Inc.
000 Xxxx Xxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
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Attn: Xxxxx X. Xxxxxx
With a copy to: Xxxxxxxxxxxx XxXxxxx Xxxxxxx & Xxxxxx
322 Boulevard of the Allies, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: H. Yale Gutnick
(ii) All notices, demands and requests shall be deemed effective
when received or, if rejected, on the date of rejection thereof.
(iii) All approvals and consents given by any party pursuant to this
Lease shall be in writing and neither party shall rely upon an approval or
consent given by the other party which is not in writing. No party shall
unreasonably delay acting upon a request by the other party for an approval or
consent called for by this Lease.
(iv) Tenant shall be entitled to designate two (2) additional
parties to whom notices shall be sent, such designation to be made in accordance
with this Subsection 18.E.
F. Captions and Section Numbers.
(i) The captions and section numbers appearing in this Lease are
inserted only as a matter of convenience and, in no way, define, limit, construe
or describe the scope or intent of any section nor in any way affect this Lease.
(ii) Reference to section numbers are references to sections within
this Lease.
G. Construction of Language. The language in all parts of this Lease shall
be construed simply, according to its fair meaning, and not strictly for or
against either Landlord or Tenant, regardless of which party initiated or
drafted particular language of this Lease. This Lease was negotiated between
parties of equal bargaining power.
When the singular or plural number or masculine, feminine or neuter
gender is used in this Lease, it shall equally apply to, extend to, and include
the other.
H. Broker's Commission. Tenant shall be responsible for the payment of any
brokerage commission becoming due and owing to Gold & Company, Inc. ("Gold")
pursuant to that certain Commission Agreement by and between Tenant and Gold,
arising out of or as a result of this Lease. Except for Tenant's agreement with
Gold, both Landlord and Tenant each warrant that it has employed no broker or
finder in connection with this transaction. However, if claims for brokerage
commission or finders fees are asserted, each party will initially bear its own
costs and indemnify the other against and hold it harmless from any and all
claims or liabilities for such fees and/or commissions (including, without
limitation, the cost of attorney's fees in connection therewith) resulting from
the acts of such indemnitor in causing such commission, fee or
42
claim.
I. Interest. Interest, except as otherwise provided herein, shall accrue
on any sums owed by either party to the other, starting from the first date of
delinquency and continuing until the full amount including interest is paid, at
four percent (4%) per annum plus the announced prime rate of Pittsburgh National
Bank, which announced prime rate changes from time to time ("Penalty Rate").
J. Persons Indemnified. All agreements by either Tenant or Landlord to
indemnify or hold the other harmless contained in this Lease shall inure to the
benefit not only of the respective indemnitee but also to its Affiliates and, if
a party is a partnership, to the benefit of such party's partners, and to the
directors, officers, shareholders, employees and agents of any of the foregoing.
K. Governing Law. This Lease and all provisions hereof, irrespective of
the place of execution or performance, shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania applicable to
agreements which are executed by all parties and are performed or performable
wholly in Pennsylvania.
L. Venue. Any action brought by any party to enforce or interpret this
Lease shall be brought in the Court of Common Pleas of Washington County,
Pennsylvania or, if the law permits, the Federal District Court for the District
in which the Property is located.
M. Rights Are Cumulative. The rights and remedies conferred upon either
party in this Lease and by law or in equity are cumulative, unless and only to
the extent inconsistent with the provisions of this Lease.
N. Saving Clause. If any provision of this Lease shall be held to be
invalid or unenforceable to any extent, the same shall not affect in any respect
whatsoever the validity or enforceability of the other provisions of this Lease.
O. Attorney's Fees. If, on account of any breach or default by Landlord or
Tenant of their respective obligations under this Lease, it shall become
necessary for the other to employ an attorney to enforce or defend any of its
rights or remedies hereunder, then, in any action brought to enforce said rights
or remedies, the prevailing party in any such action, on trial or appeal, shall
be entitled to reasonable attorney's fees to be paid by the losing party as
fixed by the Court.
P. Injunctive Relief. In the event of a breach or threatened breach by
either party of any of the covenants or
43
provisions of this Lease, the other party shall, in addition to any remedies
expressly mentioned in this Lease, have the right to request injunctive relief
and the right to invoke any remedy allowed at law or in equity. More
particularly, Landlord and Tenant hereby agree that, upon an Event of Default
hereunder by Landlord or Tenant, the damages incurred by Landlord or Tenant
shall be difficult to ascertain, and, in light of the difficulty of ascertaining
such damages, injunctive relief, including the remedy of specific performance,
shall be available to Tenant against Landlord and Landlord against Tenant.
Q. "Affiliate" Defined. The term "Affiliate" means any person or entity
which, directly or indirectly, is controlled by, is in control of, or is under
common control with, the person or entity with reference to which the term
"Affiliate" is used. Ownership of fifty percent (50%) or more of the voting or
decision making power with respect to any person or entity shall be deemed
control, although ownership of less than fifty percent (50%) shall not
necessarily negate control.
R. Estoppel Certificate. Landlord and Tenant agree, at any time and from
time to time upon not less than ten (10) days prior request by the other, that
Landlord and Tenant, respectively, will execute, acknowledge and deliver to the
other an estoppel certificate in writing certifying (i) that this Lease (in the
form attached to the certificate) is unmodified and in full force and effect or,
if there have been modifications, that this Lease is in full force and effect as
modified and identifying the modifications, (ii) the date to which the
Percentage Rent and other charges have been paid, and (iii) that, so far as the
certifying party knows, there is not an uncured Event of Default or act or
omission which, with the passage of time, will ripen into an Event of Default,
other than any specified in the certificate. The party requesting the estoppel
certificate may accompany its request with a proposed certificate to be executed
by the other party. Estoppel certificates may be relied upon by any person or
entity proposing to acquire Landlord's or Tenant's interest hereunder, or any
portion thereof or interest therein, as the case may be, and by any mortgagee or
encumbrancer or prospective mortgagee or encumbrancer (or any assignee thereof)
now or hereafter having any present or prospective interest in the right, title
or interest of Landlord or of Tenant.
S. Confidentiality. Landlord and Tenant will not use for its own benefit
and will hold in confidence all information which it learns from the other and
from any of the other's officers, agents, licensees, employees and
concessionaires, which information is not clearly of a public nature.
T. Lease Intended. The parties hereto intend this instrument to be
construed as a lease and the fact that Landlord is paid in part by a percentage
of Gross Receipts shall not
44
establish between Landlord and Tenant a partnership or joint venture
relationship. The Tenant has been given exclusive use of the Property and
Landlord has reserved no rights to direct Tenant's "day to day" operations.
Section 19. NON-DISCRIMINATION
Neither Tenant nor any person or entity under Tenant's control will
discriminate against any customer, employee, or applicant for employment because
of race, color, religion, sex or national origin.
Section 20. SUCCESSORS AND ASSIGNS
This Agreement is binding upon and, subject to the other provisions of
this Lease, inures to the benefit of the successors and assigns of the
respective parties.
Section 21. RECORDING OF LEASE
Each party shall, upon request of the other party, execute and deliver a
Memorandum of Lease in substantially the form of Exhibit "G" attached hereto, to
be recorded in accordance with the laws and customs of the Commonwealth of
Pennsylvania.
Section 22. MULTIPLE COUNTERPARTS
This Lease may be executed by the parties hereto in multiple counterparts,
each of which shall be deemed an original and all of which shall together
constitute the same document. For convenience, each party may execute a separate
signature page and it is agreed that all of such pages may be collated together
with the body hereof to form the signature pages for this Lease.
Section 23. LETTER OF CREDIT OR GUARANTY
A. Letter of Credit. On or before the day on which Tenant requests that
Landlord commence performance of Landlord's Work, as set forth in Section 5
hereof, Tenant shall deliver to Landlord a letter of credit in the amount of
$800,000.00 ("Letter of Credit"), in substantially the form of Exhibit "H"
attached hereto, which shall be drawn upon a bank insured by the Federal Deposit
Insurance Corporation ("Issuer"). The right of Landlord to make draws against
the Letter of Credit shall be conditioned upon presentment by Landlord of the
original Letter of Credit, accompanied by Landlord's certification either (i)
stating (a) that Tenant is in default in the payment of Fixed Rent under this
Lease, and (b) the amount of Fixed Rent past due and payable, such certification
to be substantially in the form of Exhibit "I" attached hereto, or (ii) stating
that a substitute letter of credit has not been furnished to Landlord at least
five (5) business days prior to the expiration of the Letter of Credit, as
provided below. If less
45
than the full $800,000.00 shall be payable, Landlord shall be entitled only to
make a partial draw, in the amount of said past due Fixed Rent, and Landlord's
reasonable expenses, not to exceed $500.00. The term of the Letter of Credit may
be for the number of years or months of the period remaining during which Fixed
Rent shall be payable, or, at Tenant's option, the term may be for a lesser
period (such as one (1) year), so long as the Letter of Credit expressly states
either that (1) same shall be automatically renewed for periods which, from the
date of its issuance, will equal the remaining period during which Fixed Rent
shall be payable, or (2) Landlord may present the Letter of Credit if a
substitute letter of credit (in the amount of the Fixed Rent remaining unpaid)
is not furnished to Landlord at least five (5) business days prior to the
expiration date of the Letter of Credit. It is further agreed that, if Landlord
receives notice from the Issuer that the Issuer will not renew the Letter of
Credit, and there remains unpaid Fixed Rent, Landlord may present the Letter of
Credit if Tenant does not furnish a substitute letter of credit (in the amount
of the Fixed Rent remaining unpaid) at least five (5) business days prior to its
expiration. The Letter of Credit additionally shall provide that the amount
thereof shall automatically reduce by a sum equal to the amount of Fixed Rent
previously paid in accordance with the terms of this Lease.
B. Guaranty. At Tenant's option, either on the day which Tenant requests
that Landlord commence performance of Landlord's Work, or at any time thereafter
during the period when Tenant is required to furnish the Letter of Credit,
Tenant may furnish to Landlord, in lieu of the Letter of Credit, a guaranty
agreement, in substantially the form of Exhibit "J" attached hereto ("Guaranty
Agreement") of Pace Management, Corporation, guaranteeing the Fixed Rent then
remaining unpaid. Further, upon furnishing to Landlord of a letter of credit in
the amount of the Fixed Rent then remaining unpaid, and which otherwise complies
with the requirements of Subsection 23.A above, the Guaranty Agreement shall be
automatically terminated and of no further force and effect, and Landlord shall
execute a written release of such Guaranty Agreement.
C. Delivery of Letter of Credit or Guaranty. Landlord shall have no duty
to commence any of Landlord's Work until the Letter of Credit in appropriate
form and/or the Guaranty Agreement is delivered to Landlord.
46
EXECUTED on the dates set forth beneath the signatures hereto, but
effective for all purposes as of the Effective Date hereof.
CROSSROADS PROPERTIES, INCORPORATED
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx. By: /s/ G. Xxxxxxx Xxxx
------------------------------ ------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx. Name: G. Xxxxxxx Xxxx
Title: Secretary Title: President
Date: December 1, 1989
- LANDLORD -
PACE ENTERTAINMENT GROUP, INC.
ATTEST:
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------------ ------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
Title: Secretary Title: President
Date: November 29, 1989
- TENANT -
47
by Xxxxxxxxx Industries, Incorporated, as Grantor, to Crossroads Properties,
Incorporated, as Grantee, by Deed dated June 19, 1989 and recorded, in the
Office of the Recorder of Deeds of Washington County, at Deed Book Volume 2371,
Page 220, et seq.
EXHIBIT "C"
LANDLORD'S LANDS
All those certain pieces, parcels or tracts of land lying, being and situate in
the Township of Hanover, County of Washington, Commonwealth of Pennsylvania,
said pieces, parcels and tracts of land being more specifically and particularly
bounded and described as follows:
Beginning at a point at the Southwest corner of Reservation No. 1 Xxxxxxxxx
Charities, Inc., Tract VI, Deed Book Volume 989, Page 129 thence along the land
now or formerly of Pennsylvania Game Commission, Xxxxx Xxxx Xxxxx Xx. 000, Xxxxx
81(degrees) 32' 00" West 1478.75 feet to a point; thence along land now or
formerly of Pennsylvania Game Commission, Parcel 1, Deed Book Volume 1396, Page
18, South 34(degrees) 35' 50" West 1697.07 feet to a point common to this land
and to land of the Pennsylvania State Game Commission and to land now or
formerly of Xxxxx and Xxxx Xxxxxxx; thence along land now or formerly of Xxxxx
and Xxxx Xxxxxxx North 14(degrees) 53' 00" West 197.21 feet to a point; thence
along land now or formerly of Xxxxx and Xxxx Xxxxxxx North 81(degrees) 08' 00"
West 140.00 feet to a point; thence along land now or formerly of Xxxxx and Xxxx
Xxxxxxx North 80(degrees) 35' 00" West 991.14 feet to a point; thence along land
now or formerly of Xxxxx and Xxxx Xxxxxxx North 27(degrees) 44' 00" West 912.16
feet to a point; thence along land now or formerly of Xxxxx and Xxxx Xxxxxxx and
crossing Xxxxxxx Xxxxxxxx Xxxx 000 Xxxxx 00(xxxxxxx) 30' 00" West 2269.40 feet
to a point; thence generally following along the westerly side of Xxxxxxx
Xxxxxxxx Xxxx 000 and along land of Xxxxxxxxx Industries, Incorporated North
42(degrees) 45' 00" West 2723.20 feet to a point; thence along land now of
Xxxxxxxxx Industries, Incorporated North 24(degrees) 32' 20" West 207.24 feet to
a point; thence staying within the Right-of-Way of Hanover Township Road 400 and
along land now of Xxxxxxxxx Industries, Incorporated North 37(degrees) 32' 00"
West 1165.09 feet to a point on the southerly Right-of-Way line of U.S. Route
22; thence along that same Right-of-Way by a curve to the Right, which curve is
the arc of a circle having a radius of 3654.83 feet, a chord distance of 927.567
feet to a point, the chord for the curve being North 67(degrees) 28'35" East;
thence along that same Right-of-Way South 15(degrees) 14" East 20 feet to a
point; thence along that same Right-of-Way by a curve to the Right, which curve
is the chord of a circle having a radius of 3634.83 feet, a chord distance of
334.98 feet to a point, the chord for the curve being North 77(degrees) 24' 24"
East; thence along that same Right-of-Way North 80(degrees) 02' 49" East 1947.97
feet to a point; thence along that same Right-of-Way North 09(degrees) 57' 11"
West 35 feet to a point; thence along that same Right-of-Way, North 80(degrees)
02' 49" East 19.31 feet to a point; thence along that same Right-of-Way by a
curve to the Left, which curve is the arc of a circle having a radius of 5879.65
feet a chord distance of 386.49 feet, the chord for the curve being North
78(degrees) 09' 49" East; thence along that same Right-of-Way North 72(degrees)
36' 09" East 15.00 feet to a point; thence along that same Right-of-Way North
17(degrees) 23' 51" West 25.00 feet to a point; thence along that same
Right-of-Way North 72(degrees) 36' 09" East 492.00 feet; thence along
that same Right-of-Way South 17(degrees) 23' 51" East 35.00 feet to a point;
thence along that same Right-of-Way North 72(degrees) 36' 09" East 300.00 feet
to a point; thence along that same Right-of-Way North 17(degrees) 23' 51" West
35.00 feet to a point; thence along that same Right-of-Way North 72(degrees) 36'
09" East 1109.61 feet to a point; thence along that same Right-of-Way South
13(degrees) 57' 50" East 42.00 feet to a point; thence along that same
Right-of-Way North 76(degrees) 02' 10" East 332.06 feet to a point; thence along
that same Right-of-Way by a curve to the Right, which curve is the arc of a
circle having a radius of 537.27 feet, a chord distance of 57.25 feet to a
point, the chord for the curve being South 72(degrees) 58' 55" East; thence
along that same Right-of-Way South 20(degrees) 04' 20" West 100.00 feet to a
point; thence by a curve to the Right, which curve is the arc of a circle having
a radius of 437.27 feet, a chord distance of 241.76 feet to a point, the chord
of the curve being South 53(degrees) 52' 47" East; thence along that same
Right-of-Way South 65(degrees) 43' 13" East 243.01 feet to a point; thence
along that same Right-of-Way North 24(degrees) 16' 47" East 68.00 feet to a
point; thence along that same Right-of-Way South 65(degrees) 43' 13" East
164.02 feet to a point; thence along that same Right-of-Way by a curve to the
Left, which curve is the arc of a circle having a radius of 398.00 feet, a chord
distance of 364.59 feet to a point, the chord of the arc being North 87(degrees)
01' 11" East; thence along that same Right-of-Way South 30(degrees) 14' 23"
East 30.00 feet to a point; thence along that same Right-of-Way by a curve to
the Left, which curve is the arc of a circle having a radius of 428.00 feet, a
chord distance of 40.92 feet to a point, the chord of the curve being North
57(degrees) 01' 17" East; thence along that same Right-of-Way North 54(degrees)
16' 47" East 168.00 feet to a point; thence along that same Right-of-Way South
80(degrees) 43' 13" East 45.00 feet to a point; thence South 35(degrees) 43' 13"
East 560.00 feet to a point; thence along land now or formerly of X. X. Xxxxxx
and J. R. Xxxxxx South 17(degrees) 46' 00" West 66.00 feet to a point; thence
along land now or formerly of X. X. Xxxxxx and J. R. Xxxxxx North 77(degrees)
44' 00" East 160.00 feet to a point; thence to the centerline of Pennsylvania
State Route 18 North 74(degrees) 30' 00" East 63.84 feet to a point; thence
along the centerline of Pennsylvania State Xxxxx 00 Xxxxxxx Xxxxx 00(xxxxxxx)
14' 00" East 1971.67 feet to a point; thence leaving the centerline of
Pennsylvania State Route 18 and along land now or formerly of Bologna Coal
Company, South 53(degrees) 46' 00" West 518.80 feet to a point; thence along
land now or formerly of Bologna Coal Company, along land now or formerly Royal
Helicopter Service and along Reservation No. 1 Xxxxxxxxx Charities, Inc., Tract
VI, South 29(degrees) 43' 20" East 935.04 feet to the point of beginning.
Containing 558.365 Acres.
Being a part of all of those certain pieces, parcels and tracts of land conveyed
by Xxxxxxxxx Charities, Inc., as Grantor, to Crossroads Properties,
Incorporated, as Grantee, by Deed dated June 19, 1989 and recorded, in the
Office of the Recorder of Deeds of Washington County, at Deed Book Volume 2371,
Page 225, et seq. and
EXHIBIT "D"
EASEMENT AREA
All that certain piece, parcel and tract of land lying, being and situate in the
Township of Hanover, County of Washington and Commonwealth of Pennsylvania, said
piece, parcel and tract of land to be used for vehicular and pedestrian ingress
and egress to and from the 327.22 Acre Tract and being more completely bounded
and described as follows:
Beginning at a point within the Right-of-Way of Hanover Township Road Number
400, said beginning point being South 37(degrees) 32' 00" East 537.43 feet more
or less from the Northwest corner of land of Crossroads Properties,
Incorporated, identified as Tract No. 1 and as more fully described on the Deed
from Xxxxxxxxx Industries, Incorporated, as Grantor, to Crossroads Properties,
Incorporated, as Grantee, said Deed being dated June 19, 1989 and recorded, in
the Office of the Recorder of Deeds of Washington County, at Deed Book Volume
2371, Page 220; thence, from said point of beginning, North 79(degrees) 48' 21"
East 3584.25 feet to a point; thence along a portion of the land of the 327.22
Acre Tract, South 20(degrees) 10' 00" East 101.53 feet to a point; thence South
79(degrees) 48' 21" West 3550.13 feet to a point within the Right-Of-Way of
Hanover Township Road Number 400; thence from said point within the Right-Of-Way
of Hanover Township Road Number 400 North 37(degrees) 32' 00" West 112.57 feet
to the point of beginning.
Containing an area of 8.189 Acres.
Being a part of that certain piece, parcel and tract of land identified as Tract
No. 1 in the Deed from Xxxxxxxxx Industries, Incorporated, as Grantor, to
Crossroads Properties, Incorporated, as Grantee, dated June 19, 1989 and
recorded, in the Office of the Recorder of Deeds of Washington County, at Deed
Book Volume 2371, Page 220.
EXHIBIT "D"
EASEMENT AREA
All that certain piece, parcel and tract of land lying, being and situate in the
Township of Hanover, County of Washington and Commonwealth of Pennsylvania, said
piece, parcel and tract of land to be used for vehicular and pedestrian ingress
and egress to and from the 327.22 Acre Tract and being more completely bounded
and described as follows:
Beginning at a point within the Right-of-Way of Hanover Township Road Number
400, said beginning point being South 37(degrees) 32' 00" East 537.43 feet more
or less from the Northwest corner of land of Crossroads Properties,
Incorporated, identified as Tract No. 1 and as more fully described on the Deed
from Xxxxxxxxx Industries, Incorporated, as Grantor, to Crossroads Properties,
Incorporated, as Grantee, said Deed being dated June 19, 1989 and recorded, in
the Office of the Recorder of Deeds of Washington County, at Deed Book Volume
2371, Page 220; thence, from said point of beginning, North 79(degrees) 48' 21"
East 3584.25 feet to a point; thence along a portion of the land of the 327.22
Acre Tract, South 20(degrees) 10' 00" East 101.53 feet to a point; thence South
79(degrees) 48' 21" West 3550.13 feet to a point within the Right-Of-Way of
Hanover Township Road Number 400; thence from said point within the Right-Of-Way
of Hanover Township Road Number 400 North 37(degrees) 32' 00" West 112.57 feet
to the point of beginning.
Containing an area of 8.189 Acres.
Being a part of that certain piece, parcel and tract of land identified as Tract
No. 1 in the Deed from Xxxxxxxxx Industries, Incorporated, as Grantor, to
Crossroads Properties, Incorporated, as Grantee, dated June 19, 1989 and
recorded, in the Office of the Recorder of Deeds of Washington County, at Deed
Book Volume 2371, Page 220.
EXHIBIT "E"
PERMITTED ENCUMBRANCES
TRACT NO. 1 -- Deed of Xxxxxxxxx Charities, Inc. to Crossroads Properties,
Incorporated dated June 19, 1989, recorded June 27, 1989 in the Recorder of
Deeds Office of Washington County, Pennsylvania, in Deed Book 2371, Page 225.
1. Any variation in location of lines or dimensions or other matters which
an accurate survey would disclose.
2. Provisions of local zoning and subdivision ordinances.
3. A right-of-way granted by Xxxxxxxxx Charities, Inc. to Peoples Natural
Gas Company for a three inch pipeline per instrument dated December 13, 1968,
recorded January 8, 1969 in Deed Book 1291, Page 596.
4. An easement for a limited access for a highway recorded in Deed Book
1274, Page 246.
5. Agreement by Xxxxx X. Xxxxxxxx with Xxxxxxx X. Xxxxx to convey property
on or before November 15, 1939. The Agreement is dated October 11, 1939. Only a
few days after this Agreement, Xxxxx X. Xxxxxxxx conveyed the property to the
Greensburg-Connellsville Coal & Coke Company. Nothing was found of record to
show that Xxxxxxx X. Xxxxx was acting on behalf of the said
Greensburg-Connellsville Coal & Coke Company. Landlord agrees to commence and
successfully complete, on or before October 24, 1990, an Action to Quiet Title
against Xxxxxxx X. Xxxxx or otherwise to appropriately acquire the interest of
Xxxxxxx X. Xxxxx.
6. An oil and gas lease dated April 24, 1908 granted to X.X. Xxxxxxxx per
instrument recorded in Deed Book 359, Page 440.
7. Timber on the property was conveyed to W.E. Xxxxxx under an Article of
Agreement dated April 6, 1933, recorded April 11, 1933 in Deed Book 591, Page
108.
8. NOTICE -- This document may not sell, convey, transfer, include or
insure the title to the coal and right of support underneath the surface land
described or referred to herein, and the owner or owners of such coal may have
the complete legal right to remove all of such coal, and, in that connection,
damage may result to the surface of the land and in any house, building, or
other structure on or in such land. (This notice is set forth in the manner
provided in Section 1 of the Act of July 17, 1957, P.L. 984.)
9. See Plan Book 21, Page 415.
10. Excepting and reserving all oil and gas as set forth in the Deed to
Crossroads Properties, Incorporated recorded in Deed Book 2371, Page 225 in the
following language: "EXCEPTING AND RESERVING to the Grantor herein all oil and
gas in and underlying said six tracts of land but without the right to use the
surface estate for any purpose whatsoever."
11. Excepting and reserving all the coal together with mining rights as
set forth in the deed to Crossroads Properties, Incorporated recorded in Deed
Book 2371, Page 225 as follows: "ALSO EXCEPTING AND RESERVING to the Grantor
herein all coal
within and underlying each of the six above-described premises together with,
for each and every vein of coal, the free and uninterrupted right-of-way into,
upon, and under said land at such points and in such manner as may be proper and
necessary for the purpose of digging, mining, coking, draining, ventilating, and
carrying away said coal, etc., together with the privilege of mining and
removing through the described premises other coal or materials belonging to the
Grantor herein, its successors or assigns, or which may hereafter be acquired.
The reserved rights herein shall not be interpreted to include use of the
surface.
Grantor and Grantee hereby expressly acknowledge their intention and agree
that the rights and privileges herein excepted and reserved to Grantor shall not
be construed to and do not, in fact, include and permit any surface use
whatsoever by bore holes, shafts, slopes, ventilation fans, hoists, pumps and
the like, of the Estate(s) hereby conveyed to Grantee.
Grantor and Grantee further hereby expressly acknowledge their intention
and agree that the rights, title and interest herein granted and conveyed to
Grantee shall be construed to grant and convey to Grantee, inter alia, the right
of surface support".
12. If a stream of water flows on or abuts the premises, then the premises
are subject to riparian rights of owners of ground abutting said stream.
TRACT NO. 2 - Deed of Xxxxxxxxx Charities, Inc. to Crossroads Properties,
Incorporated dated June 19, 1989, recorded June 27, 1989 in the Recorder of
Deeds Office of Washington County, Pennsylvania, in Deed Book 2371, Page 225.
1. Any variation in location of lines or dimensions or other matters which
an accurate survey would disclose.
2. Provisions of local zoning and subdivision ordinances.
3. A right-of-way granted by Xxxxxxxxx Charities, Inc. to Peoples Natural
Gas Company for a three inch pipeline per instrument dated December 13, 1968,
recorded January 8, 1969 in Deed Book 1291, Page 596.
4. An easement for a limited access for a highway recorded in Deed Book
1274, Page 246.
5. An oil and gas lease granted to Xxxxxxx X. Xxxxxxx per instrument dated
May 10, 1907 and recorded in Deed Book 351, Page 73.
6. A right-of-way granted to South Penn Oil Company per instrument dated
February 4, 1921 and recorded in Deed Book 489, Page 611.
7. A conveyance of 2.27 acres of coal made to Xxxxxx Creek Coal
Corporation per instrument dated April 23, 1934 and recorded in Deed Book 592,
Page 446.
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8. A lease of 11.86 acres of coal made to Xxxxxx Creek Coal Corporation
per instrument dated December 3, 1936, recorded December 4, 1936 in Deed Book
610, Page 134.
9. Various instruments in the chain of title providing that the property
is subject to a private right-of-way from the said Xxxxxxxx to Burgettstown
Public Road to the land now or late of Xxxxxx Xxxxxxx.
10. NOTICE -- This document may not sell, convey, transfer, include or
insure the title to the coal and right of support underneath the surface land
described or referred to herein, and the owner or owners of such coal may have
the complete legal right to remove all of such coal, and, in that connection,
damage may result to the surface of the land and in any house, building, or
other structure on or in such land. (This notice is set forth in the manner
provided in Section 1 of the Act of July 17, 1957, P.L. 984.)
11. See Plan Book 21, Page 415.
12. Excepting and reserving all oil and gas as set forth in the Deed to
Crossroads Properties, Incorporated recorded in Deed Book 2371, Page 225 in the
following language: "EXCEPTING AND RESERVING to the Grantor herein all oil and
gas in and underlying said six tracts of land but without the right to use the
surface estate for any purpose whatsoever."
13. Excepting and reserving all the coal together with mining rights as
set forth in the deed to Crossroads Properties, Incorporated recorded in Deed
Book 2371, Page 225 as follows: "ALSO EXCEPTING AND RESERVING to the Grantor
herein all coal within and underlying each of the six above-described premises
together with, for each and every vein of coal, the free and uninterrupted
right-of-way into, upon, and under said land at such points and in such manner
as may be proper and necessary for the purpose of digging, mining, coking,
draining, ventilating, and carrying away said coal, etc., together with the
privilege of mining and removing through the described premises other coal or
materials belonging to the Grantor herein, its successors or assigns, or which
may hereafter be acquired. The reserved rights herein shall not be interpreted
to include use of the surface.
Grantor and Grantee hereby expressly acknowledge their intention and agree
that the rights and privileges herein excepted and reserved to Grantor shall not
be construed to and do not, in fact, include and permit any surface use
whatsoever by bore holes, shafts, slopes, ventilation fans, hoists, pumps and
the like, of the Estate(s) hereby conveyed to Grantee.
Grantor and Grantee further hereby expressly acknowledge their intention
and agree that the rights, title and interest herein granted and conveyed to
Grantee shall be construed to grant and convey to Grantee, inter alia, the right
of surface support".
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14. If a stream of water flows on or abuts the premises, then the premises
are subject to riparian rights of owners of ground abutting said stream.
TRACT NO. 3 -- Deed of Xxxxxxxxx Charities, Inc. to Crossroads Properties,
Incorporated dated June 19, 1989, recorded June 27, 1989 in the Recorder of
Deeds Office of Washington County, Pennsylvania, in Deed Book 2371, Page 225.
1. Any variation in location of lines or dimensions or other matters which
an accurate survey would disclose.
2. Provisions of local zoning and subdivision ordinances.
3. A right-of-way granted by Xxxxxxxxx Charities, Inc. to Peoples Natural
Gas Company for a three inch pipeline per instrument dated December 13, 1968,
recorded January 8, 1969 in Deed Book 1291, Page 596.
4. An easement for a limited access for a highway recorded in Deed Book
1274, Page 246.
5. Oil and gas lease granted to Xxxxx Xxxxxxxx per instrument dated August
1, 1901 and recorded in Deed Book 231, Page 410.
6. Oil and gas lease granted to X.X. Xxxxxxxxx per instrument dated
December 26, 1900 and recorded in Deed Book 255, Page 498.
7. Deed to Greensburg-Connellsville Coal and Coke Company dated March 2,
1940 and recorded in Deed Book 634, Page 523. Excepting and reserving all oil
and gas leases heretofore conveyed and landowner's interest in the leases
reserved.
8. NOTICE -- This document may not sell, convey, transfer, include or
insure the title to the coal and right of support underneath the surface land
described or referred to herein, and the owner or owners of such coal may have
the complete legal right to remove all of such coal, and, in that connection,
damage may result to the surface of the land and in any house, building, or
other structure on or in such land. (This notice is set forth in the manner
provided in section 1 of the Act of July 17, 1957, P.L. 984.)
9. See Plan Book 21, Page 415.
10. Excepting and reserving all oil and gas as set forth in the Deed to
Crossroads Properties, Incorporated recorded in Deed Book 2371, Page 225 in the
following language: "EXCEPTING AND RESERVING to the Grantor herein all oil and
gas in and underlying said six tracts of land but without the right to use the
surface estate for any purpose whatsoever."
11. Excepting and reserving all the coal together with mining rights as
set forth in the deed to Crossroads Properties, Incorporated recorded in Deed
Book 2371, Page 225 as follows: "ALSO EXCEPTING AND RESERVING to the Grantor
herein all coal within and underlying each of the six above-described premises
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together with, for each and every vein of coal, the free and uninterrupted
right-of-way into, upon, and under said land at such points and in such manner
as may be proper and necessary for the purpose of digging, mining, coking,
draining, ventilating, and carrying away said coal, etc., together with the
privilege of mining and removing through the described premises other coal or
materials belonging to the Grantor herein, its successors or assigns, or which
may hereafter be acquired. The reserved rights herein shall not be interpreted
to include use of the surface.
Grantor and Grantee hereby expressly acknowledge their intention and agree
that the rights and privileges herein excepted and reserved to Grantor shall not
be construed to and do not, in fact, include and permit any surface use
whatsoever by bore holes, shafts, slopes, ventilation fans, hoists, pumps and
the like, of the Estate(s) hereby conveyed to Grantee.
Grantor and Grantee further hereby expressly acknowledge their intention
and agree that the rights, title and interest herein granted and conveyed to
Grantee shall be construed to grant and convey to Grantee, inter alia, the right
of surface support".
12. If a stream of water flows on or abuts the premises, then the premises
are subject to riparian rights of owners of ground abutting said stream.
TRACT NO. 4 - Deed of Xxxxxxxxx Charities, Inc. to Crossroads Properties,
Incorporated dated June 19, 1989, recorded June 27, 1989 in the Recorder of
Deeds Office of Washington County, Pennsylvania, in Deed Book 2371, Page 225.
1. Any variation in location of lines or dimensions or other matters which
an accurate survey would disclose.
2. Provisions of local zoning and subdivision ordinances.
3. A right-of-way granted by Xxxxxxxxx Charities, Inc. to Peoples Natural
Gas Company for a three inch pipeline per instrument dated December 13, 1968,
recorded January 8, 1969 in Deed Book 1291, Page 596.
4. An easement for a limited access for a highway recorded in Deed Book
1274, Page 246.
5. An oil and gas lease granted to Xxxxxxx X. Xxxxxxx per instrument dated
May 10, 1907 and recorded in Deed Book 351, Page 73.
6. NOTICE -- This document may not sell, convey, transfer, include or
insure the title to the coal and right of support underneath the surface land
described or referred to herein, and the owner or owners of such coal may have
the complete legal right to remove all of such coal, and, in that connection,
damage may result to the surface of the land and in any house, building, or
other structure on or in such land. (This notice is set forth
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in the manner provided in Section 1 of the Act of July 17, 1957, P.L. 984.)
7. See Plan Book 21, Page 415.
8. Excepting and reserving all oil and gas as set forth in the Deed to
Crossroads Properties, Incorporated recorded in Deed Book 2371, Page 225 in the
following language: "EXCEPTING AND RESERVING to the Grantor herein all oil and
gas in and underlying said six tracts of land but without the right to use the
surface estate for any purpose whatsoever."
9. Excepting and reserving all the coal together with mining rights as set
forth in the deed to Crossroads Properties, Incorporated recorded in Deed Book
2371, Page 225 as follows: "ALSO EXCEPTING AND RESERVING to the Grantor herein
all coal within and underlying each of the six above-described premises together
with, for each and every vein of coal, the free and uninterrupted right-of-way
into, upon, and under said land at such points and in such manner as may be
proper and necessary for the purpose of digging, mining, coking, draining,
ventilating, and carrying away said coal, etc., together with the privilege of
mining and removing through the described premises other coal or materials
belonging to the Grantor herein, its successors or assigns, or which may
hereafter be acquired. The reserved rights herein shall not be interpreted to
include use of the surface.
Grantor and Grantee hereby expressly acknowledge their intention and agree
that the rights and privileges herein excepted and reserved to Grantor shall not
be construed to and do not, in fact, include and permit any surface use
whatsoever by bore holes, shafts, slopes, ventilation fans, hoists, pumps and
the like, of the Estate(s) hereby conveyed to Grantee.
Grantor and Grantee further hereby expressly acknowledge their intention
and agree that the rights, title and interest herein granted and conveyed to
Grantee shall be construed to grant and convey to Grantee, inter alia, the right
of surface support".
10. If a stream of water flows on or abuts the premises, then the premises
are subject to riparian rights of owners of ground abutting said stream.
TRACT NO. 5 -- Deed of Xxxxxxxxx Charities, Inc. to Crossroads Properties,
Incorporated dated June 19, 1989, recorded June 27, 1989 in the Recorder of
Deeds Office of Washington County, Pennsylvania, in Deed Book 2371, Page 225.
1. Any variation in location of lines or dimensions or other matters which
an accurate survey would disclose.
2. Provisions of local zoning and subdivision ordinances.
3. A right-of-way granted by Xxxxxxxxx Charities, Inc. to Peoples
Natural Gas Company for a three inch pipeline per
E-6
instrument dated December 13, 1968, recorded January 8, 1969 in Deed Book 1291,
Page 596.
4. An easement for a limited access for a highway recorded in Deed Book
1274, Page 246.
5. An oil and gas lease granted to Xxxxxxx X. Xxxxxxx per instrument dated
May 10, 1907 and recorded in Deed Book 351, Page 73.
6. NOTICE - This document may not sell, convey, transfer, include or
insure the title to the coal and right of support underneath the surface land
described or referred to herein, and the owner or owners of such coal may have
the complete legal right to remove all of such coal, and, in that connection,
damage may result to the surface of the land and in any house, building, or
other structure on or in such land. (This notice is set forth in the manner
provided in Section 1 of the Act of July 17, 1957, P.L. 984.)
7. See Plan Book 21, Page 415.
8. Excepting and reserving all oil and gas as set forth in the Deed to
Crossroads Properties, Incorporated recorded in Deed Book 2371, Page 225 in the
following language: "EXCEPTING AND RESERVING to the Grantor herein all oil and
gas in and underlying said six tracts of land but without the right to use the
surface estate for any purpose whatsoever."
9. Excepting and reserving all the coal together with mining rights as set
forth in the deed to Crossroads Properties, Incorporated recorded in Deed Book
2371, Page 225 as follows: "ALSO EXCEPTING AND RESERVING to the Grantor herein
all coal within and underlying each of the six above-described premises together
with, for each and every vein of coal, the free and uninterrupted right-of-way
into, upon, and under said land at such points and in such manner as may be
proper and necessary for the purpose of digging, mining, coking, draining,
ventilating, and carrying away said coal, etc., together with the privilege of
mining, and removing through the described premises other coal or materials
belonging to the Grantor herein, its successors or assigns, or which may
hereafter be acquired. The reserved rights herein shall not be interpreted to
include use of the surface.
Grantor and Grantee hereby expressly acknowledge their intention and agree
that the rights and privileges herein excepted and reserved to Grantor, shall
not be construed to and do not, in fact, include and permit any surface use
whatsoever by bore holes, shafts, slopes, ventilation fans, hoists, pumps and
the like, of the Estate(s) hereby conveyed to Grantee.
Grantor and Grantee further hereby expressly acknowledge their intention
and agree that the rights, title and interest herein granted and conveyed to
Grantee shall be construed to grant and convey to Grantee, inter alia, the right
of surface support".
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10. If a stream of water flows on or abuts the premises, then the premises
are subject to riparian rights of owners of ground abutting said stream.
TRACT NO. 6 -- Deed of Xxxxxxxxx Charities, Inc. to Crossroads Properties,
Incorporated dated June 19, 1989, recorded June 27, 1989 in the Recorder of
Deeds Office of Washington County, Pennsylvania, in Deed Book 2371, Page 225.
1. Any variation in location of lines or dimensions or other matters which
an accurate survey would disclose.
2. Provisions of local zoning and subdivision ordinances.
3. A right-of-way granted by Xxxxxxxxx Charities, Inc. to Peoples Natural
Gas Company for a three inch pipeline per instrument dated December 13, 1968,
recorded January 8, 1969 in Deed Book 1291, Page 596.
4. An easement for a limited access for a highway recorded in Deed Book
1274, Page 246.
5. All of the coal under the tract conveyed to X.X. Xxxxxxx per Deed Book
207, Page 28. Note that this was the coal which was conveyed to Xxxxxx
Xxxxxxxxxx in a Family Agreement and then to be sold by him.
6. In the deed from the Xxxxxx Creek Coal Corporation to the Pennsylvania
Game Commission, all of the coal together with mining rights, waiver of surface
damage and oil and gas was excepted and reserved per instrument recorded in Deed
Book 658, Page 216. Also, Xxxxxx Creek Coal Corporation reserved the right to
mine by the strip mine method.
7. An oil and gas lease granted to X.X. Xxxxxxxx, et al. per instrument
dated August 16, 1890, recorded in Deed Book 161, Page 220.
8. An oil and gas lease granted to X.X. Xxxxxxxxx per instrument dated
December 12, 1900, recorded in Deed Book 255, page 494.
9. A right-of-way granted to Southwest Pennsylvania Pipelines Company per
instrument recorded in Deed Book 645, page 375.
10. A right-of-way granted to the Pennsylvania Game Commission for a road
per instrument recorded in Deed Book 654, page 620.
11. Deeds in the chain of title state that they except and reserve to the
lawful owners all of the rights-of-way and minerals previously excepted and
reserved per instrument recorded in Deed Book 1396, Page 11.
12. NOTICE - This document may not sell, convey, transfer, include or
insure the title to the coal and right of support underneath the surface land
described or referred to herein, and the owner or owners of such coal may have
the complete legal right to remove all of such coal, and, in that connection,
damage
E-8
may result to the surface of the land and in any house, building, or other
structure on or in such land. (This notice is set forth in the manner provided
in Section 1 of the Act of July 17, 1957, P.L. 984.)
13. See Plan Book 21, Page 415.
14. Excepting and reserving all oil and gas as set forth in the Deed to
Crossroads Properties, Incorporated recorded in Deed Book 2371, Page 225 in the
following language: "EXCEPTING AND RESERVING to the Grantor herein all oil and
gas in and underlying said six tracts of land but without the right to use the
surface estate for any purpose whatsoever."
15. Excepting and reserving all the coal together with mining rights as
set forth in the deed to Crossroads Properties, Incorporated recorded in Deed
Book 2371, Page 225 as follows: "ALSO EXCEPTING AND RESERVING to the Grantor
herein all coal within and underlying each of the six above-described premises
together with, for each and every vein of coal, the free and uninterrupted
right-of-way into, upon, and under said land at such points and in such manner
as may be proper and necessary for the purpose of digging, mining, coking,
draining, ventilating, and carrying away said coal, etc., together with the
privilege of mining and removing through the described premises other coal or
materials belonging to the Grantor herein, its successors or assigns, or which
may hereafter be acquired. The reserved rights herein shall not be interpreted
to include use of the surface.
Grantor and Grantee hereby expressly acknowledge their intention and agree
that the rights and privileges herein excepted and reserved to Grantor shall not
be construed to and do not, in fact, include and permit any surface use
whatsoever by bore holes, shafts, slopes, ventilation fans, hoists, pumps and
the like, of the Estate(s) hereby conveyed to Grantee.
Grantor and Grantee further hereby expressly acknowledge their intention
and agree that the rights, title and interest herein granted and conveyed to
Grantee shall be construed to grant and convey to Grantee, inter alia, the right
of surface support".
16. If a stream of water flows on or abuts the premises, then the premises
are subject to riparian rights of owners of ground and abutting said stream.
TRACT NO. 1 - Deed of Xxxxxxxxx Industries Incorporated to Crossroads
Properties, Incorporated dated June 19, 1989, recorded June 27, 1989 in the
Recorder of Deeds Office of Washington County, Pennsylvania, in Deed Book 2371,
Page 220.
1. Any variation in location of lines or dimensions or other matters which
an accurate survey would disclose.
2. Provisions of local zoning and subdivision ordinances.
E-9
3. An easement or right-of-way in deed of Xxxxxxxxx Industries
Incorporated to Washington County dated June 27, 1983 and recorded in Deed Book
2118, Page 53.
4. An easement or right-of-way in deed of Xxxxxxxxx Industries
Incorporated to Washington County dated June 27, 1983 and recorded in Deed Book
2118, Page 45.
5. Deed of PennWeir Construction Company to Washington County dated May
25, 1967 and recorded in Deed Book 1264, Page 997.
6. Deed from PennWeir Construction Company to Washington County dated
March 5, 1968 and recorded in Deed Book 1274, Page 693.
7. A right-of-way granted by Pennweir to Xxxx Telephone Company per
instrument dated May 24, 1966 and recorded in Deed Book 1236, Page 432.
8. A right-of-way granted by PennWeir to West Penn Power Company per
instrument dated October 1, 1965 and recorded in Deed Book 1221, Page 71.
9. A right-of-way granted by PennWeir to Manufacturers Light and Heat
Company for a six and eight inch pipeline per instrument dated February 21,
1969, recorded in Deed Book l297, Page 1072.
10. An easement for a limited access highway from PennWeir as recorded in
Deed Book 1293, Page 1114.
11. Oil and gas leases were found of record as follows:
a. To Xxxx Xxxxx, et ux. per instrument dated August 6, 1900, and
recorded in Deed Book 231, Page 504.
b. To Xxxxxxx Xxxxxxx per instrument dated June 18, 1902, and
recorded in Deed Book 279, Page 345.
c. To Xxxxxxx X. Xxxxxxx & Co. per instrument dated May 15, 1907,
and recorded in Deed Book 351, Page 72.
d. To The Peoples Natural Gas Co. per instrument dated October 29,
1910, and recorded in Deed Book 380, Page 445.
e. To Peoples Natural Gas Company per instrument dated September 9,
1924, and recorded in Deed Book 528, Page 72.
12. A coal lease granted to Hanover Coal Company of Ohio per instrument
dated October 14, 1918, and recorded in Deed Book 460, Page 397 for a period of
twenty-five years or as much longer as it may be necessary to remove and mine
all of the coal.
13. Exception and reservations of the oil, gas, coal and mining rights by
deed of National Steel Corporation to Weirton Ice & Coal Supply Company per
instrument recorded in Deed Book 1056, Page 674. (See also Deed Book 1061, Page
380.) 19.
14. NOTICE -- This document may not sell, convey, transfer, include or
insure the title to the coal and right of support, underneath the surface land
described or referred to herein, and the owner or owners of such coal may have
the complete legal right to remove all of such coal, and, in that connection,
damage may result to the surface of the land and in any house, building,
E-10
or other structure on or in such land. (This notice is set forth in the manner
provided in Section 1 of the Act of July 17, 1957, P.L. 984.)
15. See Plan Book 21, Page 416.
16. Excepting and reserving all oil and gas as set forth in the Deed to
Crossroads Properties, Incorporated recorded in Deed Book 2371, Page 220 in the
following language: "EXCEPTING AND RESERVING to the Grantor herein all oil and
gas in and underlying said two tracts of land but without the right to use the
surface estate for any purpose whatsoever."
17. Excepting and reserving all the coal together with mining rights as
set forth in the deed to Crossroads Properties, Incorporated recorded in Deed
Book 2371, Page 220 as follows: "ALSO EXCEPTING AND RESERVING to the grantor
herein all coal within and underlying each of the two above-described premises
together with, for each and every vein of coal, the free and uninterrupted
right-of-way into, upon, and under said land at such points and in such manner
as may be proper and necessary for the purpose of digging, mining, coking,
draining, ventilating, mining and removing through the described premises other
coal or materials belonging to the Grantor herein, its successors or assigns, or
which may hereafter be acquired. The reserved rights herein shall not be
interpreted to include use of the surface.
Grantor and Grantee hereby expressly acknowledge their intention and agree
that the rights and privileges herein excepted and reserved to Grantor shall not
be construed to and do not, in fact, include and permit any surface use
whatsoever by Grantor including any surface use by Grantor for, inter alia, bore
holes, shafts, slopes, ventilation fans, hoists, pumps and the like, of the
Estate(s) hereby conveyed to Grantee.
Grantor and Grantee further expressly acknowledge their intention and
agree that the rights, title and interest herein granted and conveyed to Grantee
shall be construed to grant and convey to Grantee, inter alia, the right of
surface support."
18. If a stream of water flows on or abuts the premises, then the premises
are subject to riparian rights of owners of ground abutting said stream.
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EXHIBIT "F"
RATES FOR LANDLORD'S WORK
CONCRETE PRICE SCHEDULE
Delivered
Product Price/Yard
------- ----------
1988 1989 1990 1991
3000 PSI 49.10 53.03 57.27 61.85
4000 PSI 51.45 55.57 60.01 64.81
5000 PSI 52.05 56.21 60.71 65.57
5-Bag Mix 51.10 55.19 59.60 64.37
6-Bag Mix 54.05 58.37 63.04 68.09
7-Bag Mix 56.80 61.34 66.25 71.55
Floor Mix 51.65 55.78 60.24 65.06
Prices are for preparation and delivery. They do not include placement or
finishing. Prices set forth are subject to additional charges per yard for
additives. Orders of 3 yards or less are subject to a surcharge of $35.00 per
order.
PRICE SCHEDULE FOR ADDITIVES
Delivered
Product Price/Yard
------- ----------
1988 1989 1990 1991
Fibers 6.00 6.48 7.00 7.56
1% Calcium 1.75 1.89 2.04 2.20
2% Calcium 2.75 2.97 3.21 3.46
Retarder 2.00 2.16 2.33 2.52
EXHIBIT "F" - continued
SLAG PRICE SCHEDULE
Price Per
Product Ton
------- ---------
1988 1989 1990 1991
2" 1.60 1.73 1.87 2.02
1" Minus 2.50 2.70 2.92 3.15
The prices for slag do not include delivery on site. No quote for delivery could
be obtained past 1988. 1988 quote is $2.25/ton
EQUIPMENT RATE SCHEDULE
Equipment with Operator Rate/Hour
----------------------- ---------
1988 1989 1990 1991
Caterpillar D9 Bulldozer 95.00 102.60 110.81 119.67
Caterpillar D8 Bulldozer 85.00 91.80 99.14 107.08
Michigan 275 Loader 75.00 81.00 87.48 94.48
Michigan 175 Loader 65.00 70.20 75.82 81.88
Euclid Truck 65.00 70.20 75.82 81.88
Sheepsfoot Roller
(Per Day) 50.00 54.00 58.32 62.99
10 Ton Smooth Drum Roller 35.00 37.80 40.82 44.09
Road Grader 57.00 61.56 66.48 71.80
These prices are inclusive of all expenses, including without limitation,
fuel, insurance and operators' salaries and benefits.
ADDITIONAL PROVISIONS
A. Concrete. Landlord will supply one hundred percent of the Tenant's
concrete requirement for the Amphitheater shell, parking areas, pedestrian
walkways and access roads as the Tenant contemplates in its plans. Tenant agrees
to provide Landlord notice of its daily requirement not less than three (3) days
prior to the scheduled placement of the concrete. Landlord will have no
responsibility for placement or finishing the concrete once it is delivered to
the jobsite.
B. Slag. Landlord will supply Tenant's slag requirement subject to the
following limitations:
(i) That Tenant provide Landlord its proposed delivery schedule at
least thirty (30) days in advance in order to accommodate Landlord's lead
time to accumulate sufficient stockpiles of the materials contemplated in
the delivery schedule.
(ii) That Landlord is under no obligation to provide slag in amounts
greater than 1,500 tons per day.
C. Site Work and Equipment. Landlord shall provide certain equipment to
the jobsite for use by the Tenant for purposes of completing the site work rough
grading. Upon determination by Tenant of the scope and duration of the site work
to be performed, Landlord shall use its best efforts to make available the
equipment listed on the page attached hereto. Landlord is under no obligation to
rent, on the open market, equipment Landlord is unable to provide because of
scheduling conflicts arising with its mining, milling, reclamation, concreting
and river terminal activities.
D. Price Schedule. Landlord's rental rates for equipment in the foregoing
schedule are based on a Monday through Friday single daylight shift operation,
and are subject to surcharges for overtime and shift differential. All prices
are computed using the Landlord's prevailing wage scale. Adjustment will be made
in the event Landlord's employees must work under another wage agreement at the
Amphitheater site.
EXHIBIT "G"
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE, by and between CROSSROADS PROPERTIES,
INCORPORATED ("Landlord") and PACE ENTERTAINMENT GROUP, INC. ("Tenant"),
executed on _____________, 19__ ("Effective Date"), and concurrently with the
execution of a Lease Agreement ("Lease") by and between Landlord and Tenant,
sets forth certain provisions of that Lease as follows:
I. LANDLORD'S NAME Crossroads Properties, Incorporated
AND ADDRESS: c/o Xxxxxx X. Xxxxxxxx, Xx., Esquire
000 Xxxxxxxxxx Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
II. TENANT'S NAME Pace Entertainment Group, Inc.
AND ADDRESS: 000 Xxxx Xxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
III. DATE OF
LEASE AGREEMENT: ____________________________, 19__
IV. DESCRIPTION
OF PROPERTY: Pursuant to the terms of the Lease:
1. Landlord granted to Tenant the exclusive right to lease a tract of land
containing _______ acres ("_______ Acre Tract"), those certain tracts of Land
("Leased Easements") consisting of approximately _______________ (_____ ) acres
in the aggregate (the _______ Acre Tract and the Leased Easements collectively
called the "Land"), together with any and all improvements currently on the
Land, the Land and the improvements currently on the Land and all improvements
hereafter constructed thereon being hereinafter collectively referred to as the
"Property", all located within that certain tract of land ("Landlord's Lands")
consisting of approximately _____ acres and situate at the southwest
intersection of U.S. Route 22 and Pennsylvania Route 18 in Hanover Township,
Washington County, Pennsylvania. The Land is more fully identified in Exhibit
"A" attached hereto and made a part hereof for all purposes, and the Landlord's
Lands are more fully identified in Exhibit "B" attached hereto and made a part
hereof for all purposes.
2. Landlord granted to third parties designated by Tenant the right to
acquire certain easements ("Third Party Easements") in, over, through, beneath
and across Landlord's Lands ("Easement Areas"), said Easement Areas being more
particularly described in Exhibit "C" attached hereto and made a part hereof for
all purposes. Said Third Party Easements shall benefit and shall be appurtenant
to the Property, shall be binding upon, burden and run with the Land.
V. LEASE TERM:
1. Initial Term. The initial term of the Lease ("Initial Term") shall
commence on ____________________, 19__ and shall expire on December 31, ____,
unless terminated prior thereto by any party pursuant to the provisions of the
Lease.
2. Renewal Option. Tenant has the right to renew the Lease for one
twenty-five (25) year term ("Renewal Term"), with the Renewal Term commencing
upon the expiration of the Initial Term (the Initial Term, or the Initial Term,
as renewed to extend to the Renewal Term, herein called "Lease Term").
VI. TENANT'S RIGHT OF FIRST REFUSAL: During the Lease Term, Tenant shall have
the right of first refusal to purchase the Property, all in accordance with the
procedures as more fully set forth in the Lease.
VII. TENANT'S USE OF THE PROPERTY:
1. Tenant's Exclusive Use. Tenant shall have the sole and exclusive right
to use, occupy, and enjoy the Property.
2. Restrictions on Landlord. During the Lease Term, without the prior
written consent of Tenant, which consent may be withheld by Tenant in its sole
and absolute discretion, neither Landlord nor any person deriving rights
directly or indirectly from Landlord shall use any portion of Landlord's Lands
to engage in any activities, at any time, which are similar to, or competitive
with, the types of activities which at that particular time are normal and
customary for live entertainment, for commercial concert, amphitheater and arena
facilities, fairs, festivals, and events related thereto, for recreational and
leisure sports, as an educational center or conference center. In addition,
neither Landlord nor any person deriving rights from Landlord shall engage in
any conduct on any portion of the Landlord's Lands which materially interferes
with Tenant's conduct of business on or Tenant's use of, enjoyment of, or
operations on, the Property. No portion of Landlord's Lands shall be developed
or utilized in such a manner as would cause the Tenant's activities on the
Property to be in violation of any law, ordinance, regulation or other land-use
restriction, including, without limitation, any sound emission restrictions or
ordinance. The rights of Landlord, and its successors and assigns, in and to the
Landlord's Lands shall at all times be subject to the rights of Tenant under the
Lease. Landlord recognizes that it is of the utmost importance that Tenant be
free from any competitive activities upon the Landlord's Lands and from any
interference with Tenant's activities. Accordingly, all prohibitions as set
forth herein shall be construed to prohibit all activities upon the Landlord's
Lands which are competitive with, or interfere with, Tenant's activities on the
Property.
EXHIBIT "H"
Bank
IRREVOCABLE LETTER OF CREDIT
Reference No.
Date:
CROSSROADS PROPERTIES, INCORPORATED
a Pennsylvania corporation
c/o XxXxxxxxx, Xxxxxxxx & Xxxxxxxx
000 Xxxxxxxxxx Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Gentlemen:
We hereby establish our irrevocable letter of credit No. ___________,
dated _________________________________, 19__, in your favor for the account of
Pace Entertainment Group, Inc., 000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000, in an amount not to exceed ________________________________________
___________________________________________ DOLLARS ($________) available by
your draft or drafts at site, accompanied by:
(a) the original of this Letter of Credit; and
(b) your certification that with respect to the Lease between Pace
Entertainment Group, Inc., as Tenant, and Crossroads Properties,
Incorporated, as Landlord, dated __________________, 19__, [Pace
Entertainment Group, Inc. is in default with respect to payment of
"Fixed Rent" under said Lease and the amount to which you are then
entitled] or [a substitute letter of credit has not been furnished
to you at least five (5) days prior to the expiration of this Letter
of Credit, as provided in said Lease].
Your drafts must be marked "Drawn under Irrevocable Letter of Credit No.
_______, dated ______________, 19__."
This credit is subject to the Uniform Customs and Practice for Documentary
Credits (1983 revision), International Chamber of Commerce, Publication No. 400
and engages us in accordance with its terms.
We engage with you that all drafts drawn under and in compliance with the
terms of this Letter of Credit shall be duly honored by us when presented at
_________________________________ Bank on or before ___________________,19___.
Yours very truly,
Authorized signature
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Memorandum of Lease this ___ day of ____________,
1989.
CROSSROADS PROPERTIES, INCORPORATED
ATTEST:
By: _________________________________ By: ________________________________
Name: _______________________________ Name: ______________________________
Title: Secretary Title: President
Date: ___________, 19__
- LANDLORD -
PACE ENTERTAINMENT GROUP, INC.
ATTEST:
By: _________________________________ By: ________________________________
Name: _______________________________ Name: Xxxxx X. Xxxxxx
Title: Secretary Title: President
Date: ___________, 19__
- TENANT -
EXHIBIT "I"
CROSSROADS PROPERTIES, INCORPORATED
_______________________
Bank
_______________________
Address
IN RE: Irrevocable Letter of Credit No. ____________
Dated _____________, 19__.
Gentlemen:
With respect to the Lease between Pace Entertainment Group, Inc., as
Tenant and Crossroads Properties, Incorporated, as Landlord, dated _________,
19__, [Pace Entertainment Group, Inc. is in default with respect to payment of
"Fixed Rent" under said Lease and the amount due Crossroads Properties,
Incorporated is $_________ ] or [a substitute letter of credit has not been
furnished to us at least five (5) days prior to the expiration of the Letter of
Credit as provided in said Lease].
CROSSROADS PROPERTIES, INCORPORATED
By: _________________________________
President [or Vice President]
EXHIBIT "J"
GUARANTY AGREEMENT
TO INDUCE CROSSROADS PROPERTIES, INCORPORATED, a Pennsylvania corporation,
with an office for the transaction of business in the Xxxxxxxxxx Xxxxx Xxxxxxxx,
Xxxxxxxxxx, XX 00000 (hereinafter "Landlord") to enter into that certain Lease
Agreement dated ___________________, 19__ ("Lease") with PACE ENTERTAINMENT
GROUP, INC. (hereinafter "Tenant"):
1. The undersigned does hereby guarantee and become surety for, the prompt
and punctual payment when due of Fixed Rent, as defined and described in the
Lease, which Fixed Rent is in an original amount of up to $800,000.00.
2. Landlord shall not be required, as a condition of liability of the
undersigned to make any demand upon or to pursue any of its rights against
Tenant, or to pursue any rights which may be available to it with respect to any
other person who may be liable for the payment of Fixed Rent or any portions of
the Fixed Rent.
3. The undersigned does hereby waive any notice of the incurring by
Tenant, of additional Fixed Rent obligation to Landlord. The Undersigned also
waives notice of default with respect to any obligations of Tenant to Landlord,
and, until Landlord shall have been paid in full for Fixed Rent, any right it
might otherwise have to subrogation or the marshalling of Tenant's assets.
4. Landlord, without notice to the undersigned, shall have the right to
deal in any manner it shall see bit with the obligation of Tenant to pay Fixed
Rent to Landlord and with any security for such obligation, and may accept
partial payment on account of any obligation of Tenant, and may grant extensions
or renewals of all or any part of any such obligation, and may, at any time and
from time to time, demand or receive additional security for any such
obligation, and may accept substitutes for, or release, all or any security
which it holds or may hold for any obligation of Tenant.
5. In the event Tenant shall at any time fail to pay Landlord, when the
same shall become due, any Fixed Rent as defined under said Lease, or any
interest or penalty thereon, or any obligations in connection therewith, the
undersigned promises to pay such amount to Landlord forthwith.
6. This Guaranty Agreement shall continue in force in any event for so
long as Tenant shall owe any Fixed Rent or obligations in connection with Fixed
Rent to Landlord.
7. Landlord may, without notice to the undersigned, and without prejudice
to this Agreement, release and discharge from liability to it any of the
undersigned, if the undersigned be more than one, or any other guarantor of, or
surety for, the payment of any indebtedness for Fixed Rent or obligation of
Tenant to Landlord, or any letter or letters of credit, any of the undersigned
not so discharged agreeing to remain bound hereby notwithstanding.
8. No postponement or delay on the part of the Landlord in
the enforcement of any right hereunder shall constitute a waiver of such right.
9. As used herein, "undersigned", if there be more than one, shall mean,
"all of the undersigned, or each or any of them," and in such case they are
jointly and severally bound.
WITNESS the due execution and sealing hereof with the intent of being
legally bound hereby this _______ day of ________________ 198__.
PACE MANAGEMENT CORPORATION
______________________________________
Name
______________________________________
If Corporation, State of Incorporation
______________________________________
Address
______________________________________
Federal Employer Identification Number
___________________________________ ______________________________________
Secretary By: President (SEAL)
