hlsr stadium lease agreement

J
HLSR STADIUM LEASE AGREEMENT
by and between
HARRIS COUNTY SPORTS & CONVENTION CORPORATION,
as Landlord,
and
HOUSTON LIVESTOCK SHOW AND RODEO, INC.,
as Tenant
The Harris County Stadium
Houston, Texas
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TABLE OF CONTENTS
ARTICLE 1
GENERAL LEASE TERMS;
REPRESENTATIVES
OF THE PARTIES ..................................
Section 1.1
Definitions ..............................................
Section 1.2
Rules as to Usage .........................................
Section 1.3
Landlord Representative ....................................
Section 1.4
Tenant Representative ......................................
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ARTICLE 2
GRANTOF LEASEHOLDESTATE ......................................
Section 2.1
Grant ...................................................
2.1.1 Grant of Leased Premises .............................
2.1.2 Grant of Tenant’s Facilities, Joint Club/RodeoStore
and Tenant’s Parking Spaces ...............
............
2.1.3 No Warranty of Title ................................
Section 2.2
Delivery_ of Possession and Acceptance; Covenantof Quiet
Enjoyment ...............................................
2.2.1 Delivery_ of Possession and Acceptance ..................
2.2.2 Covenant of Quiet Enjoyment .........................
Section 2.3
Leasehold Priority .........................................
Section 2.4
Exclusive Right to Exhibit Livestock, Equestrian and RodeoEvents ...
Section 2.5
Right to Use .............................................
2.5.1 Year-Round Use ....................................
2.5.2 Use During Certain Periods ...........................
2.5.3 Scheduling ........................................
2.5.4 Tenant’s Parking ...................................
2.5.5 Suites, Club Level and Business Center .................
2.5.6 Charges for Tenant Event Day Parking .................
2.5.7 Landlord’s Parking Spaces ...........................
Section 2.6
Stadium Sign; ComplexGrounds Informational Signs; Statues ......
2.6.1 Stadium Sign .....................................
2.6.2 ComplexGrounds Informational Signs ..................
2.6.3 Statues ..........................................
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ARTICLE 3
LEASE TERM......................................................
Section 3.1
Lease Term .............................................
Section 3.2
Delay Option ............................................
Section 3.3
CommencementExtension Option ...........................
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4.1.1 Amount .........................................
4.1.2 Timing of Payment of Guaranteed Payment ..............
Section 4.2
Additional Payments ......................................
4.2.1
Staffing Expenses ..................................
4.2.2 Utilities
.........................................
4.2.3 Promptness of Billing ...............................
Section 4.3 Place and Method of Payment ...............................
Section 4.4 Tenant’s Audit Rights .....................................
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ARTICLE 5
USE AND OCCUPANCY;PERMITTEDUSES .............................
Section 5.1
Permitted Uses ..........................................
Section 5.2
Prohibited Uses ..........................................
5.2.1 General .........................................
5.2.2 Complex Grounds .................................
Section 5.3
Covenant as to Recurring Events .............................
Section 5.4
Compliance with Governmental Rules ........................
5.4.1 Tenant ..........................................
5.4.2 Landlord ........................................
Section 5.5 Rights of Tenant to Revenues ...............................
Section 5.6 Advance Ticket Sales; Ticket Policies .........................
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ARTICLE 6
OPERATION, MAINTENANCE,AND REPAIR ............................
Section 6.1
Operating Covenant ......................................
6.1.1 Reserved Rights ...................................
6.1.2 Staffing .........................................
6.1.3 Tenant’s Negligence ................................
6.1.4 Restocking .......................................
6.1.5 Cleaning .........................................
6.1.6 Security for ComplexGrounds ........................
Section 6.2
Maintenance and Repairs ...................................
6.2.1 Landlord’s Obligation ...............................
6.2.2 Readiness of the Performance Area ....................
Section 6.3
Changes, Alterations and Additional Improvements ..............
Section 6.4
Mechanics’ Liens and Claims ................
...............
6.4.1 Tenant ..........................................
6.4.2 Landlord ........................................
Section 6.5 Tenant’s Remedial Work ...................................
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TABLE OF CONTENTS
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Section 6.6 Landlord’s Remedial Work .................................
Section 6.7
Utilities
................................................
6.7.1 Landlord’s Liability for Interruption of Utilities ...........
6.7.2 Landlord’s Covenants Regarding Utilities ................
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ARTICLE 7
CONCESSION~BRANDING, POURAGE~AND SERVICE RIGHTS ............
Section 7.1
Concessions ............................................
7.1.1 Grant ...........................................
7.1.2 Terms of Grant ....................................
Section 7.2
Branding ...............................................
Section 7.3
Pourage ................................................
Section 7.4
Service Rights ...........................................
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ARTICLE 8
CAPITAL REPAIR AND REPLACEMENT
COSTS .........................
Section 8.1
Capital Repair Reserve Fund ................................
Section 8.2
Landlord’s Capital Repair Reserve Fund Deposits ................
Section 8.3
Use of Capital Repair Reserve Fund ..........................
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ARTICLE 9
IMPOSITIONS......................................................
Section 9.1
Taxes and Assessments ....................................
9.1.1 Impositions on Leased Premises .......................
9.1.2 Impositions on Tenant OwnedPersonalty ................
9.1.3 Future Taxes or Impositions ..........................
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ARTICLE 10
INSURANCEANDINDEMNIFICATION.................................
Section 10.1 Policies Required ........................................
10.1.1 Landlord’s Property Insurance Policy ...................
10.1.2 Policies Required For Additional Landlord WorkBuilder’s All Risk Policy ............................
10.1.3 Additional Policies Required by Landlord During the
Lease Term ......................................
10.1.4 Policies Required by Tenant ..........................
Section 10.2 Sure_ty Bonds ............................................
Section 10.3 Blanket or Master Policy ...................................
Section 10.4 Failure to Maintain .......................................
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Section 10.5
Additional Policy Requirements .............................
10.5.1 Insurers; Certificate and Other Requirements.............
10.5.2 Delivery_ of Evidence of Insurance .....................
10.5.3 Waiver of Right of Recovery .........................
Section 10.6 Proceeds of Insurance .....................................
Section 10.7 Indemnification ........................................
10.7.1 Tenant’s Agreement to Indemnify_ ......................
10.7.2 Tenant’s Exclusions . ...............................
10.7.3 Landlord’s Agreement to Indemnify ....................
10.7.4 Landlord’s Exclusions ..............................
10.7.5 No Third Party Beneficiary ..........................
10.7.6 Conduct of Claims .................................
10.7.7 Survival .........................................
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ARTICLE 11
OWNERSHIPOF LEASEDPREMISES; ACCESS ..........................
Section 11.1 Title to the Leased Premises ................................
11.1.1 Ownership .......................................
11.1.2 Sale or Disposal of Equipmentor Other Personal Property_ ...
Section 11.2 Access to the Leased Premises by Landlord ....................
11.2.1 Leased Premises ...................................
11.2.2 Tenant’s Facilities ..................................
11.2.3 Emergency Situations ...............................
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ARTICLE 12
ENFORCEABLE
CONTRACTS.........................................
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ARTICLE 13
CASUALTYDAMAGE
...............................................
Section 13.1 Damageor Destruction ....................................
Section 13.2 Insurance Proceeds ............................
...........
13.2.1 Requirements for Disbursement .......................
13.2.2 Disbursements of Excess Proceeds .....................
13.2.3 Uninsured Losses/Policy Deductibles ...................
13.2.4 Application of Insurance Proceeds .....................
Section 13.3 Option to Terminate ......................................
13.3.1 Damageor Destruction of Substantially All of the
Improvements .........................
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13.3.2 Distribution of Capital Repair Reserve Account ...........
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13.3.3 Definition of Substantially All of the Improvements.......
13.3.4 Landlord’s Intent to Rebuild ...............
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Section 13.4 Survival ...............................................
ARTICLE 14
CONDEMNATION
...................................................
Section 14.1 Temporaw Taking .......................................
Section 14.2 Condemnationof Substantially All of the Improvements...........
14.2.1 Termination Rights ................................
14.2.2 Definition of Substantially All of the Improvements.......
Section 14.3 Condemnation Repair Work ................................
Section 14.4 Application of CondemnationAwards;Distribution of
Capital Repair Reserve Account .............................
14.4.1 Obligation to Rebuild ...............................
14.4.2 No Obligation to Rebuild ............................
14.4.3 Distribution of Capital Repair Reserve Account...........
14.4.4 Limitation on Distribution of Capital Repair Reserve
Account .........................................
Section 14.5 Condemnation Proceedings .................................
Section 14.6 Notice of Condemnation ...................................
Section 14.7 Survival ...............................................
Section 14.8 Rodeo Land .............................................
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ARTICLE 15
ASSIGNMENT;SUBLETTING.........................................
Section 15.1 Assignments of Tenant’s Interest; Subleasing ...................
Section 15.2 Permitted Transfers .......................................
Section 15.3 Release of Tenant ........................................
Section 15.4 Space Leases ............................................
Section 15.5 Transfers by Landlord .....................................
Section 15.6 Release of Landlord ......................................
Section 15.7 Estoppel Certificate .......................................
Section 15.8 Bond Insurer Consent to Landlord Transfer .....................
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ARTICLE 16
FACILITY MORTGAGES
.............................................
Section 16.1 Facility Mortgages .......................................
Section 16.2 Pledge of Payments .......................................
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ARTICLE 17
TENANTMORTGAGES
..............................................
Section 17.1 Tenant Mortgages ........................................
Section 17.2 Tenant Mortgagee Protection ...............................
17.2.1 Acknowledgmentand Agreement by Landlord ............
17.2.2 Foreclosure and Sale ...............................
ARTICLE 18
DEFAULTSANDREMEDIES..........................................
Section 18.1 Events of Default ........................................
18.1.1 Tenant Default ....................................
18.1.2 Landlord Default ..................................
Section 18.2 Landlord’s Remedies .........
, .............................
18.2.1 Bond Insurer Remedies .............................
Section 18.3 Tenant’s Remedies for Landlord Default .......................
Section 18.4 Termination ............................................
18.4.1 Transfer of Stadium Lease to Astrodome ................
18.4.2 Bond Insurer ComplexManager Replacement Option ......
Section 18.5 Tenant’s Self-Help Remedy.................................
Section 18.6 Tenant’s Remediesfor Impaired Tenantability ........
~ ..........
Section 18.7 Tenant’s Remedies for Untenantable Condition ..................
18.7.1 Tenant Event .....................................
18.7.2 Continuing Obligations .............................
Section 18.8 Cumulative Remedies .....................................
Section 18.9 Indirect Damages ...........................
.............
Section 18.10 Declaratory_ or Iniunctive Relief .............................
Section 18.11 Interest on OverdueObligations and Post-Judgment Interest ........
Section 18.12 No Waivers .............................................
18.12.1 General .........................................
18.12.2 No Accord and Satisfaction ..........................
18.12.3 No Waiver of Termination Notice .....................
Section 18.13 Effect of Termination .....................................
Section 18.14 Waiver of Liens .........................................
Section 18.15 Consumer Rights ...............................
..........
Section 18.16 Court Proceedings ........................................
Section 18.17 Attorneys’ Fees ..........................................
ARTICLE 19
SURRENDEROF POSSESSION; HOLDINGOVER........................
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Section 19.1
Section 19.2
Surrender of Possession ....................................
Removal of Personalty ....................................
19.2.1 Tenant’s Obligation to Remove.......................
19.2.2 Landlord’s Right to Remove..........................
Section 19.3 Holding Over ...........................................
Section 19.4 Survival .........
......................................
ARTICLE 20
DISPUTE RESOLUTION
..............................................
Section 20.1 Settlement By Mutual Agreement ............................
Section 20.2 Arbitration .............................................
Section 20.3 Emergency Relief ........................................
Section 20.4 Bond Insurer ..................................
..........
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ARTICLE 21
TIME, DELAY, APPROVALSAND CONSENTS...........................
Section 21.1 Time ..................................................
Section 21.2 Delays and Effect of Delays ................................
21.2.1 Excusable Tenant Delay .............................
21.2.2 Excusable Landlord Delay ...........................
21.2.3 Continued Performance/Mitigation/Exceptions ...........
Section 21.3 Approvals and Consents; Standards for Review ..................
21.3.1 Review and Approval or Consent Rights ................
21.3.2 No Implied Approval or Consent ......................
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ARTICLE 22
MISCELLANEOUS
PROVISIONS ......................................
Section 22.1 No Broker’s Fees or Commissions ............................
Section 22.2 Covenants Running with the Estates in Land ....................
Section 22.3 Relationship of the Parties ..................................
Section 22.4 Representations of Landlord and Tenant .......................
22.4.1 Power and Authority ...............................
22.4.2 Tenant’s Representations ............................
22.4.3 Landlord’s Representations ...........................
Section 22.5 Waiver of Immunity ......................................
Section 22.6 Non-Merger of Estates ....................................
Section 22.7 Notices ................................................
22.7.1 Bond Insurer .....................................
Section 22.8 Severability .............................................
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Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
22.9 Entire Agreement, Amendmentand Waiver ....................
22.10 Incorporation of Appendices and Exhibits ...................
22.11 Table of Contents; Headings ................................
22.12 Parties in Interest; Limitation on Rights of Others ................
22.13 Method and Timing of Payment ..................
...........
22.14 Counterparts ............................................
22.15 Governing Law ..........................................
22.16 Interpretation and Reliance .................................
22.17 Recording of Memorandumof Lease .........................
22.18 Prohibited Use of Tenant’s Intellectual Property_ .................
22.19 NFLClub Lease .........................................
22.20 Prime Lease ............................................
22.21 ’Principal Project Documents................................
22.22 Non-Relocation Covenant ..................................
22.22.1 Major Event ......................................
22.22.2 Injunction ........................................
APPENDICES AND EXHIBITS
APPENDICES:
’
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
Appendix G
Definitions
Rules of Usage
Booked Spring Rodeo Dates
Address for Paymentsand Notices
Insurance Plan Additional Requirements
Arbitration Procedures
Business Interruption Insurance Values Calculation
EXHIBITS:
Exhibit A- 1
Exhibit A-2
Exhibit A-3
Exhibit A-4
Exhibit A-5
Exhibit A-6
Exhibit A-7
Exhibit A-8
Exhibit A-9
Exhibit A-10
Exhibit A- 11
Exhibit A-12
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Depiction of AstrodomainProper
Depiction of Landlord’s Land
Depiction of NFLClub’s Parking Spaces
Depiction of NFLClub’s Facilities
Depiction of Performance Area
Depiction of Rodeo Land
Depiction of Tenant’s Administrative Parking Spaces
Depictionof Tenant’sFacilities
Depiction of Tenant’s Meeting Parking Spaces
Depiction of Joint Club/RodeoStore
Depiction of Chute Club
Depiction of Landlord’s Exhibition Hall Parking Spaces
...
Vlll
...
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Exhibit A- 13
Exhibit A- 14
Exhibit B
Exhibit C-1
Exhibit C-2
Exhibit D
Exhibit E
Exhibit F
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Depiction of Landlord’s Stadium Parking Spaces
Depictionof Landlord’sFacilities
Permitted Encumbrances
Event Staffing and Additional Staffing
Landlord Staffing
Assignment and Assumption Agreement
’ Form of Memorandum
of Lease
Existing Rodeo Lease
1X
HLSR STADIUM LEASE AGREEMENT
THIS HLSRSTADIUM
LEASEAGREEMENT
is made and entered into effective as of
the 17th day of May, 2001 (the "Effective Date") by and between HARRISCOUNTY
SPORTS
& CONVENTION
CORPORATION,
a local government corporation organized under the laws
of the State of Texas ("Landlord") and HOUSTON
LIVESTOCK
SHOWANDRODEO,INC.,
a not-for-profit Texas corporation ("Tenant"). Tenant and Landlord collectively are sometimes
referred to herein as the "Parties," and each of Tenant and Landlord individually is sometimes
referred to as a "Party."
RECITALS
A.
Landlord leases the AstrodomainComplexand the Additional Parking Land, among
other property, from the Countypursuant to the Prime Lease.
B.
The project known as "The Harris County Stadium" includes the design,
development,construction and furnishing of the Stadiumpursuant to the Project Agreement,the
lease and use thereof by Tenant pursuant to this StadiumLease and the other Principal Project
Documentsand the operation thereof by Landlord pursuant to this StadiumLease and the other
Principal Project Documents.
C.
In conjunction with the timely design, development,construction and furnishing of
the Stadiumpursuant to the Project Agreementand in light of the required use thereof by Tenant,
Tenant desires to lease the Leased Premises from Landlord for the purposes and uses permitted
hereunder, on, subject to and in accordancewith the terms hereof.
AGREEMENTS
For and in consideration of the respective covenantsand agreementsof the Parties
herein set forth, and other goodand valuable consideration, the receipt and sufficiency of whichare
herebyacknowledgedby the Parties, the Parties do hereby agree as follows:
ARTICLE 1
GENERAL LEASE TERMS;
REPRESENTATIVES OF THE PARTIES
Section 1.1
Definitions. Unless the context otherwise requires, capitalized terms used
in this StadiumLease have the meaningsset forth on AppendixA attached hereto or otherwise
assigned to them in this StadiumLease.
Section 1.2
Rules as to Usage.The rules set forth on AppendixB attached hereto shall
be followed whenconstruing words used in this Stadium Lease.
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Section 1.3
LandlordRepresentative.Onor before thirty (30) days after the Effective
Date, Landlord shall designate an individual to be the Landlord Representative (the "Landlord
Representative")and provide Tenant and, during the BondInsurance Period, BondInsurer with
written notice of the identity of the individual so designated. Landlordshall havethe right, from
time to time, to change the Landlord Representative by giving Tenant and, during the Bond
Insurance Period, BondInsurer written notice thereof. With respect to any action, decision or
determination which is to be taken or madeby Landlord under this StadiumLease, the Landlord
Representative maytake such action or makesuch decision or determination or shall notify Tenant
in writing of an individual responsible for such action, decision or determinationand shall forward
any communications and documentation to such individual for response or action. Actions,
decisions or determinations by the LandlordRepresentative on behalf of Landlordshall be done in
his or her reasonable business judgmentunless express standards or parameterstherefor are included
in this StadiumLease or the other Principal Project Documents,in whichcase, actions taken by the
Landlord Representative shall be in accordance with such express standards or parameters. Any
consent, approval, decision or determination hereunder by the LandlordRepresentative shall be
binding on Landlord; provided, however, the Landlord Representative shall not have any right to
modify, amendor terminate this StadiumLease.
Section 1.4
TenantRepresentative.Onor before thirty (30) days after the Effective
Date, Tenant shall designate an individual to serve as the Tenant Representative (the "Tenant
Representative")and provide Landlord and, during the BondInsurance Period, BondInsurer with
written notice of the individual so designated. Tenantshall have the right, fromtime to time, to
changethe Tenant Repres entative by giving Landlordand, during the B ond Insurance Period, Bond
Insurer written notice thereof. Withrespect to any action, decision or determinationto be taken or
madeby Tenant under this StadiumLease, the Tenant Representative maytake such action or make
such decision or detellnination or shall notify Landlordin writing of an individual responsible for
such action, decision or determination and shall forward any communicationsand documentation
to such individual for response or action. Actions, decisions or determinations by the Tenant
Representativeon behalf of Tenant shall be done in his or her reasonable business judgmentunless
express standards or parameterstherefor are included in this StadiumLease or the other Principal
Project Documents,
in whichcase, actions taken by the TenantRepresentativeshall be in accordance
with such express standards or parameters. Anyconsent, approval, decision or determination
hereunderby the Tenant Representative shall be binding on Tenant; provided, however,the Tenant
Representative shall not have any right to modify, amend,or terminate this StadiumLease.
ARTICLE 2
GRANT OF LEASEHOLD ESTATE
Section 2.1
Grant.
2.1.1 Grant of Leased Premises. In consideration of and subject to the
covenants, agreements,and conditions set forth herein and in the other Principal Project Documents,
Landlorddoes herebylease, let, demiseand rent unto Tenant, and Tenantdoes herebylease and rent
fromLandlord,the following(collectively, together with all property leased, let, demisedor rented
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under Section 2.1.2, the "LeasedPremises") on Tenant Event Daysand for BookedTenant NonEvents, each in accordance with this StadiumLease and the StadiumTri-Party Agreement:
(a)
TheStadium(excluding the NFLClub’s Facilities and Landlord’sFacilities)
(b) The Complex Grounds;
(c) The Landlord’s
FF&E;
(d)
TheIntellectual Property Rights, including an exclusive, royalty free license
to use such Intellectual Property Rights;
(e)
All air rights and air space above the Stadiumand the ComplexGrounds;
(f)
The right to utilize all improvementslocated beneath the Stadium and
Complex Grounds; and
(g)
Uninterrupted access to and egress from the Stadium and the Complex
Grounds.
Landlord and Tenant recognize that the ComplexGroundsare also a part of the "LeasedPremises"
as described in the Existing RodeoLease and agree that Landlord’s obligations hereunder with
respect to the ComplexGroundsmaybe fulfilled by Landlord’s performance under the Existing
RodeoLease or the other Principal Project Documents
to the extent the term of the Existing Rodeo
Lease coincides with the Lease Term.
2.1.2 Grant of Tenant’s Facilities,
Joint Club/RodeoStore and Tenant’s
ParkingSpaces. In addition to the provisions of Section 2.1.1 and in consideration of and subject
to the covenants,agreementsand conditionsset forth in this StadiumLeaseand in the other Principal
Project Documents,(a) Landlorddoes herebylease, let, demiseand rent unto Tenanton an exclusive
basis at all times during the Lease Term,and Tenant does herebyso lease and rent from Landlord,
Tenant’sFacilities and Tenant’sParkingSpaces, (b) Landlorddoes herebylease, let, demiseand rent
unto Tenant at all times during the Lease Term, and Tenant does hereby so lease and rent from
Landlord, the Joint Club/RodeoStore on an exclusive basis, except that during the term of the NFL
Club Lease, on a joint basis with the NFLClub as co-tenant, and (c) to the extent reasonably
necessary or otherwise appropriate for the use and enjoymentof Tenant’s Facilities, the Joint
Club/RodeoStore or Tenant’s Parking Spaces as contemplatedin this StadiumLease and the other
Principal Project Documents,Landlorddoes hereby(i) lease, let, demiseand rent unto Tenanton
exclusive basis (except as to the Joint Club/Rodeo
Store whichshall be on a joint basis with the NFL
Club as co-tenant during the term of the NFLClub Lease) at all times during the Lease Term,and
Tenantdoes hereby so lease and rent from Landlord, Landlord’sFF&E
and the Intellectual Property
Rightsand (ii) grants to Tenantuninterruptedaccess to and egress fromTenant’sFacilities, the Joint
Club/RodeoStore and Tenant’s Parking Spaces. For all purposesunder this StadiumLease, the term
"LeasedPremises"shall include all of the foregoing.
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2.1.3 No Warrantyof Title. Without limiting or reducing any of Landlord’s
covenantscontainedin Section 2.2 or Section 2.3 of this StadiumLease, Tenantagrees that Landlord
is leasing to Tenantall of Landlord’sright, title and interest in and to the LeasedPremiseswithout
warrantyof title.
Section 2.2
Delivery of Possession and Acceptance; Covenantof Quiet Enjoyment.
2.2.1 Delivery of Possession and Acceptance. Landlord covenants andwarrants
that it is the ownerof a leaseholdestate in the LeasedPremisespursuantto a grant directly fromthe
only fee simple ownerthereof. Landlordfurther covenants and warrants that on the Commencement
Date, Landlordwill deliver to Tenant(i) exclusive possessionand occupancyof Tenant’sFacilities,
the Joint Club/Rodeo
Store (except that it shall be on a joint basis with the NFLClub as co-tenant
during the term of the NFLClub Lease) and Tenant’s Parking Spaceson and subject to the terms and
conditions set forth in this StadiumLease and in the other Principal Project Documentsand (ii)
possession and occupancyof the remainderof the LeasedPremises if, as and whenrequired under
the terms of this Stadium Lease and the other Principal Project Documents.As and whenso
delivered, the LeasedPremisesshall be (i) in First Class Conditionand (ii) subject only to
Permitted Encumbrances,any Encumbrancesarising by, through or under Tenant and the terms of
the Principal Project Documents.For purposesof this Section 2.2.1 only, the LeasedPremisesshall
be deemedto be in a First Class Condition on the Commencement
Date if the Leased Premises are
constructed and delivered to Tenantin accordancewith the terms of the Project Agreementand this
StadiumLease. Theforegoing shall not require Landlordto repair or clean any conditions caused
by occupancyof any of the Leased Premises prior to the Commencement
Date by Tenant pursuant
to the Project Agreementor this Stadium Lease. Only whenthe Landlord has madeall of such
deliveries to Tenant in accordancewith this Section 2.2.1 shall Tenantbe deemedto have accepted
delivery of any of the LeasedPremises.Tenantshall havethe fight to obtain a title insurancepolicy
insuring its LeaseholdEstate and any fight of reversion in or to the RodeoLandat Tenant’sexpense.
Landlordshall not permit or allow any renewal, modification, extension, amendment
or supplement
of any Permitted Encumbrancethroughout the Lease Termwithout the prior written approval of
Tenant, whichapproval shall not be unreasonablywithheld.
2.2.2 Covenantof Quiet Enjoyment. Landlord covenants for the Lease Term
that Tenant, upon paying the Paymentsand upon keeping, observing and performing the terms,
covenants and conditions of this StadiumLease and the other Principal Project Documentsto be
kept, observedand performedby Tenant, shall and mayquietly and peaceablyhold, occupy, use and
enjoy Tenant’s Facilities, the Joint Club/Rodeo
Store and Tenant’sParking Spacesat all times, and
the remainderof the LeasedPremises at such times as required under this StadiumLease or any of
the other Principal Project Documents,without ejection or interference by or from Landlordor any
other Person (other than Persons claiming by, through or under Tenant), subject only
Encumbrances
arising by, through or under Tenant, rights of SpaceTenants arising by, through or
under Tenant, the Permitted Encumbrances,and as otherwise providedor allowedunder this Stadium
Lease or any of the other Principal Project Documents;provided, however,with respect to the air
rights and air space abovethe LeasedPremises, the covenantof quiet enjoymentcontained in this
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Section 2.2.2 shall only applyto the extent that Landlordhas the right and poweras of the Effective
Date to makesuch covenant.
Section 2.3
LeaseholdPriority. Landlord covenants that the Leasehold Estate shall
be senior and prior to any Lien or other Encumbrance
(other than the Permitted Encumbrances
and
any other Encumbrances
arising by, through or under Tenant or permitted in this StadiumLease or
the other Principal Project Documents).Further, Landlordagrees that all other tenants and users of
the LeasedPremises, or any portion thereof, whoserights are granted after the Effective Date shall
expressly subordinatetheir rights in the LeasedPremisesto the rights of Tenantas set forth in the
Principal Project Documents
pursuant to a written statement in the lease, contract, license or other
agreemententered into betweensuch tenant or user and Landlord. This Section does not extend to
any Lien or other Encumbrances
arising by, through or under Tenant or its agents acting in such
capacity.
Section 2.4
Exclusive Right to Exhibit Livestock, Equestrian and RodeoEvents.
As part of the consideration for this StadiumLease and the other Principal Project Documents,and
anything herein or in any of the other Principal Project Documents
to the contrary notwithstanding,
it is agreedthat during the LeaseTerm,Tenantshall havethe sole and exclusive right and privilege
of exhibiting and conducting the following types of events in the AstrodomainComplex,the
Stadium and the ComplexGrounds (each a "Restricted Event"):
(a)
Anymulti-dayevent opento the public that features both (i) agricultural exhibits
competitionand (ii) entertainment; and
(b)
Anyevent open to the public that has a "rodeo-like component"or a "livestock or
equestrian component,"unless such event has been consented to by Tenant, which
consent maybe withheld in Tenant’s commerciallyreasonable judgment.
Theforegoingis not intendedas a grant of a right to use the LeasedPremiseson any dates other than
Tenant Event Daysand those days on which Tenant Non-Eventsare Bookedin accordance with the
terms of this StadiumLease and the other Principal Project Documents.In addition, Landlord, the
Countyand any CountyAffiliate each agrees that it will not enter into a lease or other contractual
arrangementwith any other Person for, or that allows, the exhibition or conductingof Restricted
Events at the AstrodomainComplex,the Stadium or the ComplexGroundsduringthe Lease Term.
For purposesof this StadiumLease and havingno legal effect other than with respect to this Stadium
Lease and the Principal Project Documents,(i) events that include the presentation of, or any
competitioninvolving, bull riding, saddle or bare-backbronc riding, timed roping of cattle, chuck
wagonraces, barrel racing, teampenningof cattle, steer wrestling/bull doggingand events on or with
animals that are scored based on time will be deemedto havea "rodeo-like component,"(ii) except
as providedin the next succeedingclause (iii) hereof, events that include the exhibition or holding
of any livestock or equestrian event or competition, including an event in whichdomesticatedanimal
that are ordinarily raised on farmsor ranches, or kept for profit, are exhibited, shownin competition
or used in competitionshall be deemedto have a "livestock or equestrian component,"and (iii) the
following componentsof an event will not be considered to be a "livestock or equestrian
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5
component":(a) events in which animals competeand are judged strictly on the basis of their
confirmationor athletic ability, such as events similar to the Pin OakCharity HorseShowand (b)
the exhibition, whetheras part of a competitionor otherwise, of canines or felines. Thehereinabove
stated provisions of this Section 2.4 shall constitute restrictive covenantswhichrun with and bind
the Leased Premises, including the AstrodomainComplex,the Stadium and the ComplexGrounds
during the entire LeaseTermand Tenantshall be deemedthe beneficiary of the aforesaid restrictive
covenants.
Notwithstanding anything to the contrary contained in this Stadium Lease or the other
Principal Project Documents,Tenant’s sole and exclusive remedyfor any violation of this Section
2.4 by Landlord, Countyor any CountyAffiliate, shall be as follows: (a) the right to obtain
injunction prohibiting any such violation, (b) for so long as any such violation exists, the continuing
rights (i) to abate all payments(excluding the GuaranteedPayment)to be paid under this Stadium
Lease and any other paymentsunder any of the other Principal Project Documents(the "Exclusivity
AbatementRight") or (ii) to terminate this Stadium Lease and the other Principal Project
Documents(other than the Existing RodeoLease unless permitted pursuant thereto and except the
obligation of Tenant to pay the GuaranteedPaymentsin accordancewith this StadiumLease and the
other Principal Project Documents)(the "Exclusivity Termination Right") and (c) subject
Section 18.9, sue Landlord, the Countyor any CountyAffiliate for damages,including lost Net
Revenuesincurred as a direct result of such violation. In connection with any injunction
proceedings, Tenant shall also have the right to require Landlord, the County or any County
Affiliate, as the case maybe, to join in any such injunction proceeding,to the extent any of them
are a necessaryparty to obtain injunctive relief. If Tenantexercises its Exclusivity Termination
Right, notwithstanding any other provisions of this Stadium Lease or the Principal Project
Documents,
Tenantshall then (i) be free, at its sole option, to relocate the Spring Rodeoand Rodeo
Festival, or any portion thereof, to any other location whetherwithin or outside the limits of Harris
Countywithout any accountability or liability to Landlordor any Person whomsoever
and (ii)
deemedreleased fromall obligations under this StadiumLease and the Principal Proj ect Documents,
except the obligation to pay the GuaranteedPaymentas if this StadiumLease and the Principal
Project Documentshad not been terminated as a result of Tenant’s exercise of the Exclusivity
Termination Right.
In connectionwith the rights grantedto Tenantin this Section 2.4, each of Landlord,the County,and
any CountyAffiliate:
(a)
recognizes that Tenant has (x) contributed significant capital costs to the
construction of the Stadiumand related infrastructure; and
(b)
acknowledgesand agrees that monetarydamagescould not be calculated to
compensateTenant for any violation by the Landlord, the Countyor any
CountyAffiliate of the covenants, duties and obligations contained in this
Section 2.4.
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Accordingly,Landlord, the Countyand each CountyAffiliate agrees that (i) Tenantmayrestrain
enjoin, as providedabovein this Section 2.4, any violation or threatened violation of any covenant,
duty or obligation contained in this Section 2.4 without the necessity of posting a bondor other
security andwithoutany further showingof irreparable harm,balance of harms, consideration of the
public interest or the inadequacyof monetarydamagesas a remedy,(ii) the administration of
order for injunctive relief wouldnot be impracticable and, in the event of any violation of any
covenant, duty or obligation contained in this Section 2.4 the balance of hardships wouldweighin
favor of entry of injunctive relief, (iii) Tenantmayenforce any such covenant, duty or obligation
containedin this Section 2.4 throughspecific performanceif so awardedpursuant to the Arbitration
Procedures and (iv) Tenant mayseek injunctive or other form of relief from a court of competent
jurisdiction in order to maintainthe status quoand enforce the termsof this Section2.4 on an interim
basis pendingthe outcomeof arbitration of the applicable Disputeor Controversyin connectionwith
this Section 2.4 pursuant to the Arbitration Procedures. Each of Landlord, the Countyand any
CountyAffiliate further agreesand irrevocablystipulates that the rights of Tenantto injunctive relief
pursuant to this Section 2.4 shall not constitute a "claim" pursuant to Section 101(5) of the United
States BankruptcyCodeand shall not be subject to discharge or restraint of any nature in any
bankruptcyproceeding involving the Landlord, the Countyor any CountyAffiliate.
Section 2.5
Right to Use.
2.5.1 Year-RoundUse. Tenant will have exclusive use of Tenant’s Facilities,
the Joint Club/NFL
Store (except that it shall be on a joint basis with the NFLClub as co-tenant
during the term of the NFLClub Lease) and Tenant’s Parking Spaces and the Intellectual Property
Rights attendant thereto, at all times during the LeaseTerm,subject only to the provisions of this
StadiumLease and the other Principal Project Documents.Tenant shall also have uninterrupted
access to such areas of the LeasedPremises(including ingress and egress) on a year-roundbasis,
shall be reasonablynecessary to use and enjoy Tenant’s Facilities, the Joint Club/RodeoStore and
Tenant’sParking Spacesas permitted or allowedunder this StadiumLeas e and the StadiumTri-Party
Agreement.
2.5.2 Use During Certain Periods.
2.5.2.1 TenantEvents. During the Spring Rodeo Dates andthe Rodeo
Festival Dates that are Bookedduring Tenant’s Six-MonthPeriod in accordance with the terms of
this StadiumLease and the other Principal Project Documents,Tenantwill have the sole, continuous
and exclusive right to use, occupy,possess, enjoy and control the LeasedPremisesfor any Permitted
Usefor the purpose of holding Tenant Eventson each entire Tenant Event Day, subject only to the
provisions of this StadiumLease and the other Principal Project Documents.Onany Tenant Event
Day,subject to the restrictions set forth in Section 5.2.2, (i) Tenantmaystage activities attendant
to TenantEvents anywhereon the LeasedPremises(including the Parking Facilities) as part of any
TenantEvent, whetheror not under the sameadmissionticket, (ii) Tenant’sguests and invitees shall
be permitted to cook and otherwise prepare and consumefood and beverages in the Parking
Facilities and (iii) Tenantmayset up tents, boothsand temporaryfacilities of any kind or nature
the ComplexGrounds. OnTenant Event Days, the roof shall be open or closed in Tenant’s sole
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discretion, it beingunderstoodby the Parties that as of the Effective Dateit is anticipated that the
roof will be closed at all times duringthe SpringRodeoin order to allowfor the installation and use
of the SoundBaffles in the Stadium.
2.5.2.2
Tenant Non-Events.
(a) Use. At any time during the LeaseTerm,but subject to the provisions
of this StadiumLease, including Section 2.5.2, and the other Principal Project Documents(the
following collectively being "Tenant Non-Events"), (a) Tenant, and any Affiliate of Tenant
controlled by Tenant, shall have the right to use and occupythe Stadium(excluding the Business
Center and the NFLClub’s Facilities) for membership, committee, board and staff meetings,
functions and banquets(i) havingup to five hundred(500) attendees with no limits on the number
of events per year other than the Bookingrequirementsset forth herein and (ii) havingbetweenfive
hundred (500) attendees and one thousand two hundred(1,200) attendees on no morethan five
occasions in any calendar year ("TenantIncidental Events"), (b) Suite licensees shall have
right (by, through and under Tenant’s rights in this StadiumLeaseand the other Principal Project
Documents)to use and occupytheir respective Suites and (c) Suite licensees and Stadiumsponsors
shall have the right (by, through and under Tenant’s rights in this StadiumLease and the other
Principal Project Documents)to use and occupythe Club Level (the foregoing paragraphs (b)
(c) collectively being "Patron Incidental Events"). Subject only to the rights of Landlordand the
NFLClub to conduct Landlord Events, NFLClub Events and NFLClub Tenant Non-Events,
respectively, previously Bookedfor the sametime, Tenantshall be entitled to Bookany such Tenant
Non-Eventby notifying Landlordin writing of such Tenant Non-Eventwithin ninety (90) days prior
to the date thereof or such longer period as mutuallyagreed betweenthe Parties and the NFLClub.
(b) Tenant Incidental Event Costs and Revenues. Tenant shall (i) have
the right to occupythe Stadium(excluding the Business Center), or portion thereof Booked,for
Tenant Incidental Events without charge other than reimbursementas providedherein of Landlord’s
actual and reasonable expenses(including Utilities but excludingLandlordStaffing) directly caused
by such use and occupancyand (ii) be permitted to sell admissiontickets to attendees of any Tenant
Incidental Eventsand receive all revenuestherefromso long as such tickets are not for a Commercial
Profit. Further, Tenantmaysell or provide Concessionsto attendees of all TenantIncidental Events
and receive one hundred percent (100%) of any revenues derived by Tenant from the sale
provision of such Concessions;provided,however,that (i) Tenant maynot receive a percentage
participation in the revenues received by the concessionaire that has been licensed to conduct
concession operations in the Stadium pursuant to the Stadium Tri-Party Agreementfrom such
concessionaire’s sale of Consumable
Concessionsat Tenant Incidental Events and (ii) Tenant may
not receive the revenues derived from the sale of ConsumableConcessionsat Tenant Incidental
Eventsto the extent such revenuesare for a Commercial
Profit. In the event the revenuesfromthe
sale of ConsumableConcessions at a Tenant Incidental Event is for a CommercialProfit, then
Landlordshall be entitled to receive one hundredpercent (100%)of any net profits derived fromthe
sale of such ConsumableConcessionsat such Tenant Incidental Event.
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(c) Patron Incidental Event Costs and Revenues. Tenant shall have the
right to occupythe Stadium,or portion thereof Booked,for Patron Incidental Events without cost
or charge of any kind; provided, that the Suite licensee or Stadiumsponsor holding such Patron
Incidental Event shall be required to reimburse Landlord for its operating expenses (including
Utilities but excludingLandlordStaffing) and, in the event of the use of the ClubLevel, a reasonable
fee, each as provided in Section 8.7 of the StadiumTri-Party Agreement.Tenant shall be entitled
to one hundredpercent (100%)of any revenuesderived by Tenantfrom the sale or provision of NonConsumableConcessions at any Patron Incidental Event and Landlord shall be entitled to one
hundredpercent (100%)of any net profits derived from the sale of ConsumableConcessionsat any
Patron Incidental Event.
2.5.3
Scheduling.
2.5.3.1
Priority. Tenant will have the absolute and unconditionalfirst
priority preferential schedulingof the LeasedPremisesfor the purposeof holding the Spring Rodeo
each year during the Spring RodeoDates and the RodeoFestival each year during the RodeoFestival
Dates in accordancewith the provisions of this Section 2.5.3.1. TheSpring RodeoDates for each
year’s Spring Rodeomust fall within the Spring RodeoWindow
and the RodeoFestival Dates for
each year’s RodeoFestival must fall within the RodeoFestival Window.OnceTenant has reserved
the Spring RodeoDates for each year’s Spring Rodeoand the RodeoFestival Dates for each year’s
RodeoFestival in accordancewith this Section 2.5.3.1, such dates shall be deemedTenant Event
Daysand each such Tenant Event (including any and all portions thereof comprisinga Spring Rodeo
Event or RodeoFestival Event)shall be deemedBookedfor all purposes under this StadiumLease
and the other Principal Project Documents.
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(a)
Spring Rodeo.In order to reserve the LeasedPremisesfor the
holding of the Spring Rodeoin any year and for such Spring
Rodeo to be a Booked Tenant Event, Tenant must give
Landlordfive (5) years advancewritten notice of the Spring
Rodeo Dates (within the Spring Rodeo Window)on which
such year’s Spring Rodeois to be held (each notice being
"Spring Rodeo Booking Notice"); provided, however, that
Landlordacknowledgesthat Tenant has previously Bookedthe
Spring RodeoDates specified on AppendixC.
(b)
RodeoFestival. In order to reserve the LeasedPremises for
the holding of the RodeoFestival in any year and for such
Rodeo Festival to be a BookedTenant Event, Tenant must
give Landlord (i) twenty-three (23) months advance written
notice for the 2003and 2004RodeoFestivals, (ii) thirty-five
monthsadvance written notice for the 2005, 2006, 2007 and
2008 RodeoFestivals, (iii) forty-seven (47) monthsadvance
written notice for the 2009and 2010RodeoFestivals and (iv)
fifty-nine (59) monthsadvance written notice for the 2011
9
RodeoFestival and all subsequent RodeoFestivals of the
RodeoFestival Dates (within the RodeoFestival Window)
which a RodeoFestival is to be held (each notice being
"RodeoFestival BookingNotice").
(c)
ChangingRodeoFestival Dates. Tenant shall have fight to
changethe RodeoFestival Window
to be any other thirty-two
(32) day period during Tenant’s Six-MonthPeriod, provided
Landlord approves such change, such approval not to be
unreasonablywithheld. Uponreceipt of Landlord’s approval,
the Rodeo Festival Windowshall be deemedto be the new
period consented to by Landlord for all purposes under this
Stadium Lease; provided, however, any such change in the
RodeoFestival Window
must be madeat least (i) twenty-three
(23) months in advance for the 2003 and 2004 Rodeo
Festivals, (ii) thirty-five monthsin advancefor the 2005,2006,
2007and 2008 RodeoFestivals, (iii) forty-seven (47) months
in advance for the 2009 and 2010 RodeoFestivals and (iv)
fifty-nine (59) monthsin advancefor the 2011RodeoFestival
and all subsequent RodeoFestivals
2.5.3.2 BookingNoticeChanges.Tenant shall be allowedto revise any
Spring RodeoBookingNotice or RodeoFestival BookingNotice (insofar as the revised dates are
within the Spring RodeoWindowand the RodeoFestival Window,respectively) by delivering
written notice to Landlordof its election to do same. Notwithstandingthe foregoing, Tenant shall
only be allowed to revise a Spring RodeoBooking Notice or a RodeoFestival BookingNotice
insofar as the revised dates do not create a conflict with any LandlordEventor NFLClub Eventthat
has been previously Bookedin accordancewith the terms of the Principal Project Documents.
2.5.3.3 Canceled Tenant Events. If any Booked Tenant Event, or
portion thereof comprisinga Spring RodeoEvent or RodeoFestival Event, is postponedor canceled
(each being a "CanceledEvent"), Tenant shall have the right to re-Booksuch CanceledEvent, or
a replacement or substitute event thereto, on another date within Tenant’s Six-MonthPeriod on
which no conflicting Landlord Event or NFLClub Event is then Booked at the Astrodomain
Complex,subject to the provisions of the Principal Project Documents.Nothingcontained in this
StadiumLease or any other Principal Project Document
shall give Tenant the right to (i) Bookany
Tenant Event on a date on which a conflicting NFLClub Event or Landlord Event is Bookedin
accordancewith the Principal Project Documentsor (ii) conductor hold a Tenant Event or Tenant
Non-Eventthat has not been Booked.
2.5.3.4 Cooperation with Landlord. In connection with Tenant’s
administration of Tenant Events, Tenant agrees that it will reasonably cooperate with Landlordso
as to maximizethe availability of the LeasedPremisesfor BookingLandlordEvents in areas of the
LeasedPremises not neededby Tenant during Tenant Events, at its discretion. Further, on Tenant
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Event Daysoccurring at the beginning and end of the Spring RodeoDates or the RodeoFestival
Dates, Tenant shall allow reasonable move-inaccess and move-outegress of LandlordEvents held
at the AstrodomainComplexand the Additional Parking Land, provided the samedoes not interfere
with any Spring RodeoEventor RodeoFestival Event occurring at such time nor reduce or interfere
with parking, ingress/egress, operations or other activities permitted under this StadiumLeaseon
Tenant Event Days.
2.5.3.5 Notice Under this Stadium Lease and the Existing Rodeo
Lease. The Parties acknowledgeand agree that (i) any "Spring RodeoBookingNotice" or "Rodeo
Festival Booking Notice" (as such terms are defined in the RodeoLease Amendment)
delivered
pursuant to the terms of the Existing RodeoLease shall constitute delivery of a Spring Rodeo
BookingNotice or RodeoFestival BookingNotice, as applicable, pursuant to the terms of this
Stadium Lease and (ii) any Spring Rodeo Booking Notice or Rodeo Festival Booking Notice
delivered pursuant to the terms of this StadiumLease shall constitute delivery of a "Spring Rodeo
BookingNotice" or "RodeoFestival BookingNotice" (as such terms are defined in the RodeoLease
Amendment),
as applicable, pursuant to the terms of the Existing RodeoLease.
2.5.4 Tenant’s Parking.
2.5.4.1 TenantEventDayUse. Withoutlimiting Tenant’s rights to use
the LeasedPremises for any Permitted Use and subject to the provisions of the Principal Project
Documents,on each and every Tenant Event Day, Landlord shall provide to Tenant at no cost or
charge, other than the Parking Taxand the parking charge as provided in Section 2.5.6, adequate
parking spaces on the Complex
Groundsfor the exclusive use of Tenant and its patrons, attendees,
invitees and guests, including any officials, Tenant’sservice people, staff or volunteers, members
of the press or any other media, radio, television or advertising representatives, and any other
Persons as Tenant maydesire, in connection with any Tenant Event. In no event will the number
of such adequateparking spaces be less than 22,000(less the numberof parking spaces in Tenant’s
Parking Spaces, Landlord’s Parking Spaces and the NFLClub’s Parking Spaces) or morethan 25,000
(less the numberof parking spaces in Astroworld’s Parking Spaces, Tenant’s Parking Spaces,
Landlord’sParking Spacesand the NFLClub’s Parking Spaces). In fulfilling its parking obligations
under this StadiumLease to Tenant with respect to the provisions to Tenant of parking spaces on
Tenant EventDays, Landlordwill makeavailable to Tenant such parking spaces that are the closest
parking spaces on the Complex
Groundsto the Stadium,subject to the location of Tenant’s Parking
Spaces, Landlord’s Parking Spaces, Astroworld’s Parking Spaces and the NFLClub’s Parking
Spaces. Oncemorethan 22,000 parking spaces (less Tenant’s Parking Spaces, Landlord’s Parking
Spacesand the NFLClub’s ParkingSpaces) (but in no event greater than 25,000parking spaces, less
Tenant’s Parking Spaces, Landlord’s Parking Spaces and the NFLClub’s Parking Spaces) are
available at the ComplexGroundson a consistent basis for Tenant Events, Landlord shall not
provide to Tenant for any Tenant Event less than such amountof parking spaces. Landlord and
Tenantrecognize that the foregoing obligation of Landlordis also contained in the Existing Rodeo
Lease and maybe fulfilled by Landlord’s performanceunder the Existing RodeoLease during the
Lease Termto the extent the term of the Existing RodeoLease coincides with the Lease Term.
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2.5.4.2 Tenant Non-Event Use. During Tenant Non-Events that are
Bookedin accordance with the terms of this StadiumLease and subject to the provisions of the
Principal Project Documents,Tenant shall have the right to use such parking spaces on the Complex
Groundsas are necessary for the holding of such Tenant Non-Eventand as are required to be
provided by Landlord in accordance with this Section 2.5.4.2 (the "Tenant Non-EventParking
Spaces") but subject to the applicable provisions of the Principal Project Documents.The Tenant
Non-EventParkingSpacesshall be (i) for the use of Tenantand the patrons, attendees, invitees and
guests of such TenantNon-Event,(ii) at no cost or charge of any kind, including the Parking Tax
or any parkingsurcharge, to Tenantor the users of such parkingspaces for TenantIncidental Events
and (iii) provided on a non-discriminatory basis; provided, however,in all circumstancesTenant
shall be entitled to the sole use and occupancyof Tenant’sParking Spacessubject to the Principal
Project Documents.Landlord’s obligation to provide the Tenant Non-EventParking Spaces on a
non-discriminatorybasis shallbe (i) subject to Landlord’sobligations to the NFLClub under Section
2.5.5(c) of the NFLClub Lease regarding parking for "Tenant Events" (as such term is defined in
the NFLClub Lease) and (ii) satisfied so long as Landlordshall not exclude attendees of Tenant
Non-Eventsfrom the Parking Facilities unless the Parking Facilities are full. Notwithstanding
anything herein to the contrary, if another Eventis occurring at the AstrodomainComplexat such
time as a TenantIncidental Eventis occurring, Tenantacknowledges
that in order to ensure that such
Tenant Incidental Event Parking is provided at no cost or charge, Tenant mayhave to issue
ComplimentaryParking Passes in accordance with Section 2.5.4.5.
2.5.4.3 Busing. At such times during the Lease Term as Tenant is
entitled to occupythe LeasedPremises pursuant to the terms of this StadiumLease, Tenant shall
havethe uninterruptedright to transport its employees,staff, volunteers,invitees, guests, patrons and
attendees into and out of the AstrodomainComplex,at no cost or charge of any kind, including the
Parking Tax, by (i) bus or any other high occupancyvehicle and (ii) any form of masstransit
is, or maybe in the future, connectedto, adjacent to or serve the AstrodomainComplex.
2.5.4.4 Year-Round Use. At all times during the Lease Term, but
subject to the terms of the Principal Project Documents,Tenant shall have the sole and exclusive
right to use and occupyTenant’sParking Spaces, at no cost or charge, including the Parking Taxor
any parking surcharge, to Tenant or the users of such parking spaces. Tenant’s MeetingParking
Spacesshall be for (i) the use of the patrons, attendees, invitees and guests of TenantNon-Events
under both the Existing RodeoLease and this StadiumLease and (ii) Tenant’s use of Tenant’s
Office/MeetingSpace pursuant to the terms of the Existing RodeoLease. Tenant’s Administrative
Parking Spaces shall be for the use of officers, staff, executive committee,employees,guests,
visitors, invitees, Tenant’sservice people, membersof the press and other media, radio, television
and advertising representatives and all other Persons as Tenant maydesire. Further, Tenant shall
have the right, in its sole discretion, to identify specific parking spaces within Tenant’s
Administrative Parking Spaces that shall be markedand designated for the sole use and occupancy
of Tenant’s officers, membersof Tenant’s executive committeeand certain membersof Tenant’s
senior staff. Tenant’s WarehouseParking Spaces shall be for (i) Tenant’s use of Tenant’s
Office/MeetingSpacein Tenant’s Warehouseand (ii) storage, including the storage of earth moving
equipment,each pursuant to the terms of the Existing RodeoLease. At all times during the Lease
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Term,but subject to the terms of the Principal Project Documents,Tenant shall have the right to
fence or rope off Tenant’s Parking Spaces; provided, however,that in the event that Tenant shall
desire to place any permanentfencing aroundTenant’s Parking Spaces, Tenantshall (a) coordinate
with Landlordto insure that such permanentfencing will not interfere with Landlord’s right to
relocate Tenant’s Parking Spaces pursuant to Section 4.1 of the StadiumTri-Party Agreementand
(b) coordinate with the NFLClub to insure that such permanentfencing will not interfere with the
NFLClub’s right to reduce Tenant’s ParkingSpacespursuant to Section 4.3 of the StadiumTri-Party
Agreement.
2.5.4.5 Complimentary
Passes. For any or all Tenant Event Days and
during all Tenant Events and Tenant Incidental Events, Tenant shall have the fight to (i) issue
complimentary
parkingpasses, with in and out privileges, to any employee,staff, director, officer,
member,volunteer, committeemember,VIP (excluding Suite licensees), sponsors (irrespective
whether such sponsor is a Suite licensee), contestant or exhibitor ("Complimentary
Parkino
Passes") that Tenant in its reasonable judgment deemsnecessary, consistent with Tenant’s
operational needs and historical practice but recognizingthe effect on Landlord’sparking revenue
and (ii) subject to the termsof the Principal Project Documents,
designate specific entrances to and
locations on the Complex
Grounds(except as providedin Section 5.2.2 hereof) that shall be for the
reserveduse or occupancyofthe holders of Complimentary
Parking Passes; provided, however, that
irrespective of whetherTenantelects to so designate specific entrances or reserved parkingareas,
the holders of ComplimentaryParking Passes mayenter or park on the ComplexGroundsat any
locations that the general public shall be entitled to enter or park on the Complex
Grounds.Any
vehicles entering the Leased Premises on Tenant Event Days or during Tenant Events or Tenant
Incidental Events and presenting a Complimentary
Parking Pass shall not be subject to a parking
charge of any kind, including the Parking Tax or any parking surcharge. Landlordand the Complex
Managershall coordinate with Tenant for the implementation and issuance of the Complimentary
Parking Passes and the establishment of reserved parking areas on Tenant Event Daysand during
Tenant Events and Tenant Non-Eventspursuant to this Section 2.5.4.5.
2.5.5 Suites, Club Level and Business Center. Certain additional rights and
obligations of the Parties and users of the Suites, the ClubLevel and the BusinessCenter are set
forth in the StadiumTri-Party Agreement,including Tenant’s right to use the BusinessCenter.
2.5.6 Charges for Tenant Event Day Parking. Subject to the terms of this
StadiumLease and the Existing RodeoLease regarding any free or complimentaryparking rights,
whetherpursuant to ComplimentaryParking Passes or otherwise, Landlord will have the fight on
Tenant Event Daysand during Tenant Non-Eventsto impose, collect and receive a parking charge
or fee for vehicles entering the ComplexGroundsfor purposes of attending Tenant Events and
TenantNon-Eventsheld at the LeasedPremises. For the first Spring Rodeoand RodeoFestival held
subsequent to the Commencement
Date and for all Tenant Non-Eventsheld during such period of
time, the average amountchargedper vehicle on any particular day for parking spaces available for
parking use (i.e., not used by Tenantfor other uses or for reserved or complimentary
parking) (the
"AverageParkingRate") shall not exceed Eight and No/100 Dollars ($8.00) per vehicle. For
Tenant Events and Tenant Non-Eventsheld subsequent to such Spring Rodeoand RodeoFestival,
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Landlordshall have a reasonable right to increase the AverageParking Rate on an annual basis to
reflect market changes, recognizing the effect that any such increase will have on the level of
attendance at Tenant Events.
2.5.7 Landlord’s Parking Spaces During Tenant Events, Landlord shall have
the fight to use Landlord’s Parking Spaces
Section 2.6
StadiumSign; ComplexGroundsInformational Signs; Statues.
2.6.1 StadiumSign. Tenant, at Tenant’s sole cost and expense and subject to
Landlord’s reasonable consent (which consent shall be permitted to take into consideration
Landlord’sdesire to maintaina certain degree of aesthetic conformitywith respect to such types of
signs), shall havethe fight to place a marqueeor sign on the exterior of the Stadiumidentifying the
Stadium as the homeof Tenant (i.e., "Homeof HoustonLivestock Showand Rodeo"or "Homeof
RodeoHouston"). Tenant consents to the similar rights granted to the NFLClub in the NFLClub
Lease.
2.6.2 ComplexGroundsInformational Signs. Tenant, at Tenant’s sole cost and
expenseand subject to Landlord’sreasonable consent(whichconsent shall be permitted to take into
considerationLandlord’sdesire to maintaina certain degree of aesthetic conformitywith respect to
such types of signs), shall havethe right to install such directional or informationalsignageon the
ComplexGroundsas Tenant deemsreasonably necessary to adequately identify Tenant’s Facilities
and "Tenant’s Facilities" as defined in the Existing RodeoLease. Tenant consents to the similar
rights granted to the NFLClub in the NFLClub Lease.
2.6.3 Statues. As of the Effective Date, there are certain statues and sculptures
located on the ComplexGrounds,including, the AmericanIndian statue located to the west of Gate
5, that were installed on the ComplexGroundsby Tenant pursuant to the Original RodeoLease (or
the oral consent of Landlord’spredecessor) (collectively, the "Statues"). The Parties acknowledge
and agree that these Statues will be subject to the followingprovisions:
(a)
The Statues are and shall remainthe property of Tenant;
(b)
Landlordmayrequest that the Statues be relocated to another location in
the AstrodomainComplex(other than Landlord’s Landor the RodeoLand)
to the extent future renovations of, or improvementsto, the Astrodomain
Complex(as permitted pursuant to the Existing Rodeo Lease) shall
necessitate such relocation;
(c)
Anyrelocation of the Statues pursuant to this Section 2.6.3 shall be (i)
Tenant’ssole cost and expenseand (ii) to a location within the Astrodomain
Complex(other than Landlord’s Landor the RodeoLand) mutually agreed
upon by Tenant and Landlord; and
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(d)
Prior to the Exposition Delivery Date (as defined in the Existing Rodeo
Lease) and any replacementof the Astroarena(as permitted by the Existing
RodeoLease), Tenant shall have the right to relocate any or all of the
Statues to another location within the AstrodomainComplex(other than
Landlord’s Landor the RodeoLand) mutually agreed upon by Tenant and
Landlord.
ARTICLE 3
LEASE TERM
Section 3.1
Lease Term. The term of this Stadium Lease (the "Lease Term") shall
commence
at 12:01 a.m on the first day following the Substantial CompletionDate and acceptance
of the LeasedPremises by Tenant (as the samemaybe extended pursuant to Section 3.2 or Section
3.3, the "Commencement
Date"), but in no event earlier than August 11 2002, and, unless (a)
sooner terminated in accordancewith the provisions of this StadiumLease or (b) extended due
a Stub Period as describedbelowin this Section3. I, end at 11:59p.m. on the datethat is thirty (30)
years after the Commencement
Date. Prior to the Commencement
Date, Tenant shall not have the
right to use or occupythe LeasedPremisesexcept as providedunder the terms of the Existing Rodeo
Lease, which use or occupancyshall not be deemedto be acceptance of the Project Improvements
Workor commencement
of the Lease Term. If a Tenant Event is in progress on the expiration of
the Lease Term,then the Lease Termshall be automatically extended so as to end at 11:59 p.m. on
the first day followingthe earlier of(a) the last day of Tenant’sSix-Month
Period or (b) the last
of the Spring RodeoDates or RodeoFestival Dates, as applicable, for the Tenant Event then in
progress(such period of extension of the Lease Termbeing referred to herein as the "Stub Period").
Section 3.2
Delay Option. Notwithstanding the provisions of Section 3.1 to the
contrary, in the event that at anytimeafter one hundredeighty (180) days before the first day of any
Spring RodeoDates or RodeoFestival Dates that are Bookedin any calendar year, starting with the
2003 Spring Rodeo Dates, Tenant reasonably determines that the Commencement
Date will not
occur prior to the first day of such Spring RodeoDates or RodeoFestival Dates, as applicable,
Tenant shall have the option (the "Delay Option") to commence
the Lease Termon any date prior
to the beginningof the latter of the first day of the next SpringRodeoDatesor RodeoFestival Dates
that are Bookedafter the Commencement
Date (as determined pursuant to Section 3.1), provided
Tenant delivers written notice to Landlord of its exercise of such Delay Option prior to the
Commencement
Date (as determined pursuant to Section 3.1). In the event Tenant exercises the
DelayOption, the Lease Termshall commence
at 12:01 a.m on the date specified by Tenant for the
commencement
of the Lease Termin a notice to be delivered by Tenant within twenty (20) days
followingthe Commencement
Date (as determinedpursuant to Section 3.1), but in all events the date
specified by Tenantshall be no later than the latter of the first day of the next SpringRodeoDates
or RodeoFestival Dates Bookedafter the Commencement
Date (as determined pursuant to Section
3.1). In the event that Tenantdoes not exercise any such DelayOptionby delivering either of the
foregoing written notices to Landlord, the DelayOption shall automatically expire and be of no
further force or effect and the Lease Termshall commence,subject to Section 3.3, on the
Commencement
Date (as determined pursuant to Section 3.1). Notwithstandinganything seemingly
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to the contrary set forth herein, Tenant’sexercise of, or failure to exercise, the DelayOptionshall
not operate as a waiverof Tenant’s remediesor damagesas set forth in the Project Agreement,the
FundingAgreementor this StadiumLease arising from the failure of the Stadiumto be completed
by the date required thereunder.
Section 3.3
Commencement
Extension Option. Notwithstanding the provisions of
Section 3.1 to the contrary and providedTenanthas not exercised the DelayOption, in the event the
Commencement
Date (as determined pursuant to Section 3.1) occurs during the period of any
BookedTenant Event in any calendar year, beginning in 2003, Tenant shall have the option (the
"Commencement
ExtensionOption") to commencethe Lease Termon any date prior to the latter
of the first day of the next Spring RodeoDates or RodeoFestival Dates that are Bookedfollowing
the Commencement
Date (as detemainedpursuant to Section 3.1) by delivering written notice to
Landlord that Tenant has exercised such Commencement
Extension Option and specifying the date
on which the Lease Term is to commence.In the event Tenant exercises the Commencement
Extension Option, the Lease Termshall commence
at 12:01 a.m. on the date specified by Tenant
in such notice for the commencement
of the Lease Term, but in all events the date specified by
Tenant shall be no later than the latter of the first day of the next Spring RodeoDates or Rodeo
Festival Dates Bookedafter the Commencement
Date (as determinedpursuant to Section 3.1.). In
the event that Tenant does not exercise any such Commencement
Extension Option by delivering
written notice to Landlord, within twenty (20) days after the Commencement
Date (as determined
pursuant to Section 3.1), the Commencement
Extension Option shall automatically expire and be
of no further force or effect and the Lease Termshall commence
on the Commencement
Date (as
determinedpursuant to Section 3.1). Notwithstandinganything seeminglyto the contrary set forth
herein, Tenant’s exercise of, or failure to exercise, the Commencement
ExtensionOption shall not
operate as a waiver of Tenant’s remedies or damagesas set forth in the Project Agreement,the
FundingAgreementor this StadiumLease arising from the failure of the Stadiumto be completed
by the date required thereunder.
ARTICLE 4
PAYMENTS
Section 4.1
Guaranteed Payments.
4.1.1 Amount. For each Lease Year in the Lease Term, Tenant covenants and
agrees to pay to Landlord an annual payment and certain other payments (collectively, the
"Payments")as follows and without offset or deduction other than as expressly provided in this
Stadium Lease:
(a)
Anamountequal to $1,500,000 for each such Lease Year of the
Lease Term (the "Guaranteed Payment"), which Guaranteed Payment shall be due and
payiable as providedin Section 4.1.2; and
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(b) The Additional Paymentsattributable to each such Lease Year,
provided in Section 4.2, which Additional Paymentsshall be calculated, and shall be due
and payable, as providedin Section 4.2.
4.1.2 Timing of Payment of Guaranteed Payment.
4.1.2.1 General. Tenant shall pay the Guaranteed Payment for each
Lease Year of the Lease Term in advance and in accordance with Section 4.3, commencingon
February 15, 2003 and continuing on the same day of each calendar year thereafter until and
including February 15, 2032 for the Lease Term(each such date a "Guaranteed
PaymentDate").
The Guaranteed Paymentfor any Stub Period at the end of the Lease Termshall be paid at the
beginningof the Stub Period and pro-rated based uponthe actual numberof days involved and paid
by Tenant at the beginningof the Stub Period.
4.1.2.2 Returnof PrepaidGuaranteedPayments.In the event (i) this
StadiumLease is terminated pursuant to Section 13.3, Section 14.2.1, Section 18.4 or Section 18.7
or any other provision of the Principal Project Documents
(other than due to a Tenant Default and
excludingSection 2.4 hereof) or (ii) in the event Tenantis entitled to exercise the remedyprovided
for in Section 18.3(b) of this StadiumLease(the earlier of the foregoingoccurrencesbeing herein
referred to as the "RefundDate"), and any GuaranteedPaymentshave been paid by Tenant for all
or any portion of a Lease Year subsequent to the RefundDate, Landlordshall on the RefundDate
refund to Tenant all amountspaid by Tenant as GuaranteedPaymentsfor all or any portion of any
Lease Year subsequent to the RefundDate to the extent the samehas not been previously paid to
Tenant by the Sports Authority or Landlord.
Section 4.2
Additional Payments. Tenant covenants and agrees to pay only the
additional costs, expenses,liabilities, obligations and other paymentsdescribed in this Section 4.2
and any other payments,including charges for labor, services or materials, whichTenanthas agreed
to pay Landlordunder the provisions of this StadiumLeaseor the other Principal Project Documents
(collectively,
the "Additional Payments"). The Additional Payments do not include the
Guaranteed Payments.
4.2.1 Staffing Expenses. In accordance with Section 6.1.2, Tenant shall
reimburse Landlord for the expenses actually incurred by Landlord (without mark-up)for Event
Staffing and Additional Staffing for whichTenantis responsible to pay.
4.2.2 Utilities. In accordancewith the provisions of Section 6.7.1, Tenant shall
pay or cause to be paid the costs of Utilities used or consumedby Tenant at or in the Stadiumin
holdingTenantIncidental Events. Landlordshall pay the cost of all other Utilities used or consumed
at the LeasedPremises.
4.2.3 Promptnessof Billing. Notwithstanding anything in the Principal Project
Documentsto the contrary, Landlord acknowledgesand agrees that the prompt performance of
repairs for which Tenant is responsible hereunder and submission of invoices to Tenant promptly
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following the completionthe Spring Rodeoand the RodeoFestival is essential to the operations of
Tenant. As such, Landlordand Tenant agree that Tenantwill not be responsible for any Additional
Paymentsto be paid for by Tenant pursuant to this StadiumLease, regardless of whether such
Additional Paymentsare actually owedby Tenant, unless (i) an invoice for any Additional Payments
relating to a particular SpringRodeoor RodeoFestival, as the case maybe, is receivedwithin thirty
(30) days of the last day of the Spring RodeoDates or RodeoFestival Dates for such Spring Rodeo
or RodeoFestival and (ii) with respect to any repairs to the LeasedPremisesresulting from a Tenant
Event and for whichTenant is obligated to reimburseLandlordfor under the terms of this Stadium
Lease only, a punch-list of such repairs shall be mutually established between the Landlord
Representativeand the TenantRepresentative within the earlier of(X) seven (7) days from the
Spring Rodeo Event of the Spring Rodeoor Rodeo Festival Event of the RodeoFestival, as
applicable, is held at the LeasedPremises, (Y) the date uponwhichTenant has concludedits moveout followingthe completionof the Spring Rodeoor the RodeoFestival, as applicable or (Z) prior
to the move-inof any other Eventor NFL-Club
TenantNon-Eventafter the completionof the Spring
Rodeoor RodeoFestival or pursuant to Section 2.5.3.4, as applicable; provided, however, that
Tenant shall not be relieved of its obligation to reimburseLandlordfor any repairs to the Leased
Premisesresulting froma TenantEvent and for whichTenantis obligated to reimburseLandlordfor
under the terms of this StadiumLeasein the event that the punch-list is not established within the
foregoing time period and such failure is caused solely by the Tenant Representative’s failure to
reasonably cooperate with the Landlord’sRepresentativeto establish such punch-list.
Section 4.3
Place and Methodof Payment.All Guaranteed Payments shall be paid
without additional notice or demandto the Personspecified pursuant to the FundingAgreementand
all AdditionalPaymentsshall be paid to Landlordwithin thirty (30) days of the date Tenantreceives
an invoice therefor as set forth in Section 22.13 and AppendixD to this StadiumLease. ThePerson
to receive such paymentsand the address for paymentmaybe changedfrom time to time by notice
to Tenant from Landlordor such payeeas Landlordshall so designate by written notice to Tenant.
Section 4.4
Tenant’s Audit Rights. Landlord shall maintain books and records
showingall operating expenses of the LeasedPremises, including all staffing expenses, costs of
Utilities, costs of Tenant Event Day Admissions Taxes and Parking Taxes charged, costs of
Maintenanceand Capital Repair Workfor the Leased Premises and distributions to and from the
Capital Repair Reserve Fund, in accordance with sound accounting and managementpractices,
consistently applied. ByApril 1 of each calendar year during the LeaseTerm(including the calendar
year followingthe year in whichthe LeaseExpirationDate occurs), Landlordshall furnish to Tenant
a statement of costs of (i) Event Staffing or Additional Staffing (to the extent payable
reimbursableby Tenant), (ii) cost of Utilities chargedto Tenant,(iii) costs of Capital Workfor
Leased Premises and distributions to and from the Capital Repair ReserveFundor (iv) any other
costs payable by Tenant under this StadiumLease, each for the prior calendar year prepared by a
qualified, independent certified public accountant. Tenant and/or its representative, which
representative mustbe a qualified, independentcertified public accountant, shall havethe right to
examineLandlord’s books and records ("’Audit") with respect to such operating expenses during
normalBusinessHours, uponwritten notice, delivered at least ten (10) BusinessDaysin advance;
provided, however, that on each Tenant Event Day, Tenant shall have the fight to examine
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Landlord’sbooksand records regarding EventStaffing, Additional Staffing (to the extent payable
or reimbursable by Tenant) or any other costs payable by Tenant under the Existing RodeoLease
for the SpringRodeoor RodeoFestival then being held. If it is determinedas the result of Tenant’s
Audit that costs of (i) EventStaffing or AdditionalStaffing (to the extent payableor reimbursable
by Tenant), (ii) cost of Utilities charged to Tenant, (iii) costs of Capital Workfor the Leased
Premises and distributions to and from the Capital Repair Reserve Fundor (iv) any other costs
payable by Tenant under this StadiumLease were overstated by three percent (3.0%) or moreand
Landlorddoes not disagree with such determination then Landlordshall reimburse Tenant for the
reasonable costs of such Audit. If, however, Landlord disagrees with such determination, then
Landlord shall be entitled to arrange for a second audit ("Second Audit") by a qualified,
independent certified public accountant (which accountant maynot be the sameaccountant that
preparedthe statementof operatingexpensesin dispute). If it is determinedas the result of any such
SecondAudit that costs of (i) Event Staffing or Additional Staffing (to the extent payable
reimbursableby Tenant), (ii) cost of Utilities chargedto Tenant,(iii) costs of Capital Workfor
LeasedPremises and distributions to and from the Capital Repair ReserveFundor (iv) any other
costs payable by Tenantunder this StadiumLease hereunderwere overstated by three percent (3.0%)
or more,then Landlordshall reimburseTenantfor the reasonablecosts of the Audit and pay the costs
of the SecondAudit; otherwise Tenant shall pay for the cost of the Audit and reimburse Landlord
for the reasonable costs of the SecondAudit. In either event, Landlordor Tenant, as the case may
be, shall reimbursethe other Party for (or in the case of Capital Workfor the LeasedPremisesand
distributions to and from the Capital Repair Reserve Fund, deposit or withdrawinto or from the
Capital Repair ReserveAccount,as applicable) the amount,if any, of the disputed items whichwere
incorrectly stated, overstated or understatedby Landlordto the extent required to be paid by either
Party to the other under the applicable provisions of this StadiumLease.
ARTICLE 5
USE AND OCCUPANCY~ PERMITTED USES
Section 5.1
Permitted Uses. During the Lease Term,Tenant shall have the right to use
and occupythe LeasedPremises during the periods and to the extent provided in Article 2 and as
limited or provided elsewhere in the Principal Project Documentsfor the following purposes
(collectively, the "Permitted Uses"):
(a)
Offices for Tenant’s business and operations;
(b) The exhibition, production, presentation and broadcasting (or other
transmission or electronic distribution) of Tenant Events and Tenant Non-Events, and
activities related thereto, including meetings, fund-raisers, barbeques, social events,
communityand public relations, the exhibition of advertising, marketingof Tenant Events
and TenantNon-Events,ticket sales and Suite licensing, sale of food and beveragesand any
and all other activities which,fromtime to time, are customarilyconductedby or are related
to the business and operations of Tenant or to any Tenant Events or Tenant Non-Events;
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(c)
Sale of Consumable Concessions and Non-Consumable
Concessions,including food and alcoholic and non-alcoholic beverages, souvenirs and other
items customarily sold and marketedin sports and multi-purposeentertainment facilities;
(d) Parking in the Parking Facilities;
(e) Retail uses, including such uses located in (i) the concourses,plazas
and mezzaninesof the Stadium,(ii) along the street level or abovethe street level of the
LeasedPremises, (iii) in kiosks, carts and similar permanent,movableor temporaryretail
facilities and (iv) in the ClubLevel;
(f)
Entertainment;
(g)
Staging, productionand storage operations by Tenantand any of its
Affiliates, sub-tenants, licensees and concessionaires;
(h) Useand operation of Tenant’s or its contractor’s studio and related
facilities for radio, television, intemet, cable, satellite and any other broadcast and
entertainment media within the Leased Premises during Tenant Events and Tenant
Non-Events, including Tenant’s or its contractor’s support and production facilities,
transmissionequipment,antennas and other transceivers and related facilities and equipment
primarily for the broadcast, production or other transmission of Tenant Events and Tenant
Non-Events,and activities related thereto, and for the creation of commercials,television
shows,in-Stadiumand in-gamevideos, including the fight to sublease or license such studio
or related facilities to a third party whichmayor maynot be an Affiliate of Tenantfor all or
a portion of such purposes;
(i)
Thesole and exclusive fight to broadcast, disseminate, reproduce
and/or transmit by telephone,movies,radio, television, tape, disk, cassette, cable, satellite,
dish, direct beam,pay television broadcasts, intemet distribution or any other methodof
reproduction and/or otherwise, any part of all of TenantEvents and Tenant Non-Events,and
activities related thereto, including pre-show, intermission or mid-showand post-show
features and/or events and any and all visual or oral communications
relating thereto, and
Tenantshall retain for its ownuse and benefit all revenues,proceedsand receipts therefrom;
(j)
Storage of Maintenance equipment, performance equipment and
supplies used in connectionwith the operation of the LeasedPremisesand all other Permitted
Uses;
(k)
Theuse and enjoymentof the fights and licenses granted to Tenant
under the RodeoLicense Agreement; and
(1)
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Otheruses reasonablyrelated or incidental to any of the foregoing.
20
Section 5.2
Prohibited Uses.
5.2.1 General. Tenant shall not use, or permit the use of, the Leased Premises
for any other or additional purposesthat is not a PermittedUsewithoutfirst obtaining the consent
of Landlord, whichconsent shall not be unreasonablywithheld. Notwithstandingthe Permitted Uses
hereunder, Tenantagrees that it shall not use, or permit the use of, the LeasedPremisesfor the
following purposes (collectively, the "Prohibited Uses"):
(a)
Subject to the provisions of the StadiumTri-Party Agreement
as to Additional
Tenant Work(but only during the performanceof any such Additional Tenant Work),create,
cause, maintainor permit any public or private nuisancein, on or about the LeasedPremises;
(b) Anypurpose which is violative of any GovemmentalRule or any Permitted
Encumbrance;
(c) As (i) a sexually-oriented business (defined as an "enterprise" in Section
121 of the City of HoustonCodeof Ordinances, as hereafter amendedfrom time to time),
(ii) an industrial site, or (iii) a wastedisposalsite;
(d) the operation of a NFLfranchise or the exhibition of football games.
Theprovisions of this Section 5.2.1 shall inure to the benefit of, and be enforceable by Landlord.
Noother Person, including any invitee, patron or guest of the LeasedPremises or the NFLClub,
shall have any right to enforce the prohibitions as to the Prohibited Uses; provided, however,the
NFLClub shall have the right to enforce the prohibitions set forth in (d) aboveas long as the NFL
ClubLeaseis in effect.
5.2.2 ComplexGrounds. Without first obtaining the consent of Landlord, which
consent shall not be unreasonablywithheld, Tenant agrees that its use of certain portions of the
Complex
Groundsshall be limited as provided in this Section 5.2.2.
5.2.2.1 Additional Parking Land and Landlord’s Land. Subject to
Tenant’s right to use the Additional Parking Landand Landlord’s Landfor any Permitted Use as
provided in Section 72(g) of the StadiumTri-Party Agreement,Tenant agrees that during Tenant
Events it shall not have the right to use the Additional Parking Landor Landlord’s Landfor any
purposeother than parking for the general public attending Tenant Events and passenger vehicles
holding Rodeoissued parking passes or permits, including Complimentary
Parking Passes; provided,
however,that Tenant shall not be entitled to designate any portion of the Additional Parking Land
or Landlord’sLandas reserved parking or to instruct any holders of Complimentary
Parking Passes
to park solely in a particular area of the Additional Parking Landor Landlord’sLand.
5.2.2.2 RodeoLand.Subject to Tenant’s right to use the RodeoLandfor
any Permitted Useas provided in Section 7.2(g) of the StadiumTri-Party Agreement,Tenant agrees
that during Tenant Events it shall not have the right to use the RodeoLandfor any purposeother
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21
than parking for (i) the general public attending Tenant Events, (ii) passenger vehicles holding
Rodeoissued parking passes or permits, including Complimentary
Parking Passes and (iii) exhibitors
or performersfor TenantEvents, providedTenant shall be entitled to designate any or all of the
RodeoLandas reserved parking.
5.2.2.3 RodeoFestival. Tenant agrees that during the RodeoFestival it
shall not have the right to use the Complex
Groundsfor any purposeother than parking for (i) the
general public attending TenantEvents, (ii) passenger vehicles holding Rodeoissued parking passes
or permits, including Complimentary
Parking Passes and (iii) exhibitors or performersfor Tenant
Events,providedTenant shall be entitled to designate a reasonable portion of the Complex
Grounds
(other than the Additional Parking Landand Landlord’sLand)as reserved parking. Notwithstanding
the foregoing, Tenant shall have the right during the RodeoFestival to use such portion of the
ComplexGrounds (other than the Additional Parking Land and Landlord’s Land) as Tenant
determines is reasonably necessary for any operations incidental to the conducting of the Rodeo
Festival, including ConcessionOperations;provided,however,Tenant’s use of the ComplexGrounds
for such ConcessionOperationsshall not be permitted to reduce parking by morethan ten percent
(10%).
Theprovisions of this Section 5.2.2 shall inure to the benefit of, and be enforceableby, Landlord.
Noother person, including any invitee, person or guest of the Leased Premises or the NFLClub,
shall havethe right to enforce the provisionsof this Section5.2.2.
Section 5.3 Covenantas to Recurring Events. Tenant agrees that during the Lease
Term,Tenantwill not solicit the producersor sponsors of a RecurringEventto cause any Recurring
Event to occur on a Tenant Event Day.
Section 5.4 Compliance with Governmental Rules.
5.4.1 Tenant. Withoutlimiting Landlord’s obligations set forth in the Principal
Project Documents,Tenant shall, throughout the Lease Term, within the time periods permitted by
applicable Governmental Rules, comply or cause compliance with all Governmental Rules
applicable to Tenantand, except as providedto the contrary in Section 5.4.2 below, Tenant’suse or
occupancyof the Leased Premises in accordancewith the Principal Project Documentsother than
GovernmentalRules requiring Capital Repairs or upgrades to the Leased Premises. Tenant shall
have the right to contest the validity or application of any such Governmental
Rule, and if Tenant
promptly so contests while preventing the imposition of any Liens on the Leased Premises, then
Tenant maypostpone compliancewith such GovernmentalRule during such contest, provided that
such contest is prosecuted with diligence, except that Tenant shall not so postpone compliance
therewith in such a manneras to, or if doing so would,impair the structural integrity of the Leased
Premises, materially limit any right of Landlordto groundlease, operate, maintain, repair, use or
occupythe LeasedPremises(subject to the Principal Project Documents),or subject Landlordto any
liability or prosecutionfor a criminal act or cause the LeasedPremisesto be condemned
or vacated.
Landlordshall not, nor shall Landlordallow any other tenant or any third party within Landlord’s
control to, prevent Tenant from complyingwith any such GovernmentalRules.
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5.4.2 Landlord. Withoutlimiting Tenant’s obligations set forth in the Principal
Project Documents,Landlordshall, throughout the Lease Term,within the time periods permitted
by applicable Governmental Rules, comply or cause compliance with all GovernmentalRules
applicable to the lease, operation, maintenance,repair, use and occupancyof the LeasedPremises
to the extent not caused by Tenant’s use or occupancyof the Leased Premises. Landlord shall,
however, have the right to contest the validity or application of any GovernmentalRule, and if
Landlordpromptlyso contests while preventing the imposition of any Liens on the LeasedPremises,
then Landlord may postpone compliance with such Governmental Rule during such contest,
providedthat such contest is prosecutedwith diligence, except that Landlordshall not so postpone
compliancetherewith in such a manneras to, or if doing so would,impair the structural integrity of
the Leased Premises defer any Maintenanceor Capital Repair Workrequired to keep the Leased
Premisesin First Class Condition, limit any right of Tenant under this StadiumLease or the other
Principal Project Documents
or subject Tenantto any liability or prosecutionfor a criminal act or
cause the LeasedPremisesto be condemned
or vacated. Tenantshall not, nor shall Tenantallow any
third party within Tenant’s control to, prevent Landlord from complying with any such
GovernmentalRules.
Section 5.5 Rights of Tenantto Revenues.Subject to the terms of the’Principal Project
Documents,
Tenantshall be entitled to, and is herebygranted (subject to Sections 5.2.1 and 5.4.. 1)
the exclusiveright to contract for, collect, receive andretain all gross incomeand revenuesand other
consideration of whateverkind or nature realized by, from or in connection with Tenant’s use or
occupancyof the LeasedPremises,including, all gross revenues, royalties, license fees, concession
fees and incomeand receipts of any nature arising from the rights of Tenant under the Principal
Project Documents.
Section 5.6 AdvanceTicket Sales; Ticket Policies. Tenant’s rights with respect to
advance ticket sales and ticketing policies as provided in the Original RodeoLease shall be
incorporatedherein as if fully set out in this StadiumLeaseand shall apply to the Stadiumand the
Highly Restricted Area.
ARTICLE 6
OPERATION, MAINTENANCE, AND REPAIR
Section 6.1 Operating Covenant. During the Lease Term and except as provided in
Section 6.2.1 with respect to Tenant’sFacilities, Landlordcovenantsto (i) operate and Maintainthe
Leased Premises, or cause the Leased Premises to be operated and Maintained, in a First Class
Condition, (ii) perform, or cause to be performed, all Maintenanceand Capital Repair Workwith
respect to the LeasedPremises in accordance with this Article 6, (iii) perform, or cause to
performed, all Casualty Repair Workin accordancewith Article 13, (iv) perform, or cause to
performed, all Condemnation
Repair Workin accordancewith Article 14, (v) provide Utilities
accordancewith Section 6.7 and (vi) subject to any right of reimbursementby Tenant under this
StadiumLease, bear, pay and be responsible for all costs and expensesnecessary for Landlordto
fulfill the obligations of Landlordunder this StadiumLease.
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6.1.1 Reserved Ri~,hts. Subject to the terms set out in the Principal Project
Documentsto the contrary, including Landlord’s operating, Maintenanceand repair covenants and
standardsset forth in Section6.1 and Section6.2, Tenantreserves the sole and exclusive right, power
and authority to operate TenantEventsand TenantNon-Events.Subject to the terms of the Principal
Project Documents,
Tenantshall also havesuch discretion in the use, operation and control of(i) the
Leased Premises on Tenant Event Days, (ii) the portion of the StadiumBookedfor a Tenant NonEventand (iii) Tenant’sFacilities, the Joint NFL/Club
Store (except that it shall be on a joint basis
with the NFLClub as co-tenant during the term of the NFLClub Lease) and Tenant’s Parking Spaces
at all times during the Lease Term,as maybe neededto fully recognize the benefits and perform
efficiently its responsibilities under this StadiumLeaseand the other Principal Project Documents,
but subject to the terms thereof.
6.1.2 Staffing.
6.1.2.1 EventStaffing. Subject to Section 6.1.2.7 below, Landlord, at
Tenant’s reasonable expense,shall staffthe LeasedPremiseswith reasonable levels of staff similar
to the staffing of Comparable
Facilities for TenantEventsand TenantNon-Events,such levels to be
mutually agreed on betweenthe Parties (the "Event Staffing"). AnypredeterminedEvent Staffing
to whichLandlordand Tenant agree maybe increased, decreased or modified from time to time only
with the prior approvalof Landlordand Tenant, whichapproval shall not be unreasonablywithheld;
provided, however, if Landlord and Tenant cannot agree on Event Staffing or any modification
thereto, then Event Staffing will be (i) based on the staffing of ComparableFacilities in similar
circumstances, adjusted to take into account differences between the Leased Premises, the
ComparableFacilities and the Tenant Event in question, and (ii) at the level that, in Landlord’s
reasonable discretion, is necessary to provide a safe environmentfor the attendees of the Tenant
Events, Tenant Non-Eventsor such other use by Tenant, as applicable. The types of personnel
described in Exhibit C-1attached hereto are the types of personnelcontemplatedas EventStaffing.
Withregard to certain security personnelidentified by Tenant, Landlordwill cooperatein goodfaith
with Tenant to maintain continuity of individual personnel whomeet Tenant’s reasonable approval.
Landlord and Tenant also shall cooperate in good faith to develop and implement a traffic
management
plan to facilitate the ingress and egress of traffic to and fromthe LeasedPremisesfor
TenantEvents. Notwithstanding
anythingherein to the contrary, (i) all EventStaffing shall be staff
related to and necessitated by the use and occupancyof the Leased Premises by Tenant during
Tenant Events and Tenant Non-Eventsand (ii) any staff falling into the category of personnel
described on Exhibit C-1 as Event Staff but whoare part of Landlord’sregular staff (as described
on Exhibit C-2.) shall not be part of Event Staffing and shall instead be a portion of Landlord
Staffing.
6.1.2.2 AdditionalStaffing. Staffing in addition to Event Staffing of the
types of personnel described in Exhibit C-1 attached hereto (the "AdditionalStaffing") maybe
providedby Landlord,at Landlord’sexpense, subject to the provisions of Section 6.1.2.7; provided
that to the extent, and only the extent, such AdditionalStaffing is (i) requested by Tenantor (ii)
necessaryin Landlord’sreasonablediscretion in order to providea safe environmentfor the attendees
of the Tenant Event or Tenant Non-Event,proximately caused by the holding of the Tenant Event
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or Tenant Non-Event(and not as a result of a Force Majeure, Emergency
or failure of Landlordto
fulfill its Maintenanceand Capital Repair obligations under this StadiumLease), and Landlordhas
provided Tenantwith prior written notice of the necessity of providing such Additional Staffing,
the cost of such Additional Staffing shall be reimbursedby Tenant. Landlordshall not be obligated
to provide Additional Staffing requested by Tenant, unless Tenantand Landlordsubsequentlyagree
as to whichParty will be responsible for the expensethereof.
6.1.2.3 LandlordStaffing. In addition to the Event Staffing and any
Additional Staffing, Landlordshall staff, at Landlord’ssole cost and expense,the LeasedPremises
including the Stadium,throughoutthe Lease Termwith reasonablelevels of the staff similar to the
staffing by operators of ComparableFacilities (the "LandlordStaffing"). Event Staffing and
Additional Staffing for whichTenant pays as providedin Sections 6.1.2.1 and 6.1.2.2 are excluded
from LandlordStaffing. The types of personnel described in Exhibit C-2 attached hereto are the
types of personnel contemplatedas LandlordStaffing.
6.1.2.4 StaffParking.Landlordwill use good faith efforts to prevent any
personnelof LandlordStaffing and Additional Staffing for whichTenantshall not pay from parking
in the Leased Premises on Tenant Event Days.
6.1.2.5 Conductof Staff; Replacement.Landlordwill ensure that all staff
membersemployedby Landlord or the ComplexManagerfor any Tenant Event, Tenant Non-Event
or other use by Tenant shall conduct themselvesprofessionally. In the event that Tenant, in its
reasonable discretion, deemsany staffmember,whetherapart of Event Staffing, Additional Staffing
or Landlord Staffing, to be unfit for duty as a memberof the staff, Landlord or the Complex
Manager,as appropriate, will immediately removeany such memberof the staff and, subject to
Section 6.1.2.7 below, replace such position with a staff memberreasonably approvedby Tenant.
Likewise,Tenant will ensure that all individuals selected by Tenantto substitute for and replace
membersof Landlord’s Event Staffing and Additional Staffing pursuant to Section 6.1.2.7 hereof
shall conductthemselvesprofessionally. In the event that Landlord,in its reasonable discretion,
deemsany individuals selected by Tenantto substitute for and replace membersof Landlord’sEvent
Staffing and Additional Staffing to be unfit to perform the duty for which such individual was
selected, Landlordshall have the right to request, and Tenant will immediatelyremoveany such
individual from the position selected and replace such individual with another whomeets the
requirementsof this Section 6.1.2.5.
6.1.2.6 Staffing Expenses.The Parties agree that (i) Landlordwill charge
Tenantonly Landlord’sactual cost for any stafffor whichTenantis obligated to reimburseLandlord,
without mark-up,and Landlordshall not pass-throughto Tenantits corporate or other overhead,(ii)
all compensationand benefits to staffwill be at marketrates (adjusted for each personnelposition
no moreoften than on an annual basis, subject to review by the Management
Committeeestablished
under the StadiumTri-Party Agreement)and (iii) no overtimewill be chargedexcept as is necessary
due to an Emergency.
It is the intent of the Parties that Landlordshouldnot makeany profit through
staffing, but seek to recover fromTenantonly Landlord’sactual costs for such staff that Tenantis
obligated to reimburseLandlord. To the extent EventStaffing or Additional Staffing, the cost of
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25
whichTenant ordinarily wouldbe liable to reimburseLandlord, is not only used for a TenantEvent
or Tenant Non-Event,but also for any other Event or NFLClub Tenant Non-Event,expenses for
such Event Staffing and such Additional Staffing will be fairly and equitably allocated among
Tenant, the NFLClub and Landlord, to the extent such expenses were incurred in regard to their
respective Events, Tenant Non-Eventsor NFLClub Tenant Non-Eventsand for which under the
terms of the Principal Project Documents
they are obligated to pay.
6.1.2.7 Tenant’s ReplacementStaff. Other than the personnel indicated
on Exhibit C-1 attached hereto as not being able to be providedby Tenant, Tenantshall at all times
be entitled to substitute and replace any member
of EventStaffing or AdditionalStaffing (for which
Tenantis obligated to pay the cost of in accordancewith the terms of this Section 6.1) with its own
members,staff, employees,volunteers or hired staff in connectionwith any Tenant Event, Tenant
Non-Eventor PerformancePreparation S ervices and thereby incur no charge from Landlordfor such
replaced staffmembers. Notwithstandingthe foregoing, each of Tenant’s replacement staffmember
must meet the qualifications that would have been imposedon such staff memberhad they been
hired or obtained by Landlordto performthe particular duty that they will be performing.
6.1.3 Tenant’s Negligence. Notwithstanding anything to the contrary contained
in this StadiumLease, Tenant agrees to reimburseLandlordfor all reasonable costs and expenses
incurred by Landlordfor Maintenanceand repairs whichdirectly result fromTenant’s(or its agent’s
or contractor’s) negligenceor willfulmisconduct;provided, however,Tenantshall not haveany such
obligation to reimburse Landlordwith respect to repairs or Maintenancenecessitated by ordinary
wear and tear or any repairs necessitated by any Casualty or Condemnation,nor shall Tenant be
liable for those matters described in Section 10.7.2 hereof.
6.1.4 Restocking. Tenant shall pay Landlord’scost to restock (including the cost
of such supplies) hand soap, hand towels and toilet paper used during Tenant Eventsand such hand
soap, handtowels and toilet paper supplies the use of whichare attributable to TenantNon-Events.
Notwithstanding
the foregoing,in lieu of payingfor the cost of the handsoap, handtowels and toilet
paper used during Tenant Events and Tenant Non-Eventsin accordancewith the foregoing sentence,
Tenantshall havethe option of providingsuch supplies to Landlordsubject to the qualifications set
forth in the next succeedingsentence hereof and providedthat such supplies shall be of a similar
kind and quality to the supplies that Landlord would have otherwise obtained. Notwithstanding
anything in this StadiumLease or the other Principal Project Documents
to the contrary, Landlord
covenants and agrees that after the first two (2) Lease Years and for the remainderof the Lease
Term, in the event the equipment, fixtures and fittings installed in the Leased Premises for
dispensing hand soap, hand towels and toilet paper are not of a nature that they are capable of
accepting and dispensing handsoap, handtowels and toilet paper that are of a generic size and type
and that are commonly
available from different suppliers or manufacturers, Tenant’s responsibility
to reimburse Landlordfor hand soap, hand towels and toilet paper used during Tenant Events and
Tenant Non-Eventsshall be limited to the actual cost of such supplies for equipment,fixtures and
fittings for dispensing hand soap, hand towels and toilet paper that are capable of accepting and
dispensing hand soap, hand towels and toilet paper of a generic size and type and commonly
available from different suppliers or manufacturers; provided, howeverthat Tenant shall not be
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permitted to provide such supplies to Landlordin lieu of paying for the cost of such supplies and
shall be responsible for Landlord’sactual cost of such supplies in the event that (i) Landlordhas
entered into a contract for supply of handsoap, hand towels and toilet paper whichdoes not allow
Tenantto provide such supplies and to whichLandlordhas obtained Tenant’s prior written consent
of such provision or (ii) Tenantand the NFLClub have entered into a contract for supply of hand
soap, hand towels and toilet paper through the AstrodomainJoint MarketingTermsand Conditions
(as defined in the StadiumTri-Party Agreement),the supply of such items being a Service Right,
whichcontract does not allow Tenant to provide such supplies.
6.1.5 Cleaning. Notwithstandinganythingherein to the contrary, (i) Landlordshall
deliver the Leased Premises to Tenant in a clean condition, the level of such cleanliness to be
mutually agreed upon by Landlord and Tenant but in all events to be no less than the state of
cleanliness in similar circumstancesfor Comparable
Facilities, on the first day of the Spring Rodeo
Dates (and after havinginstalled the RodeoDirt in accordancewith Section 6.2.2.) and the first day
of the RodeoFestival Dates Bookedin each calendar year at Landlord’ssole cost and expense, (ii)
Landlordshall clean the LeasedPremisesduring the Spring Rodeoand the RodeoFestival, the level
of such cleaning to be mutuallyagreed uponby Landlordand Tenant on an annual basis but in all
events to be no less than the level of cleaning in similar circumstancesfor Comparable
Facilities,
at Tenant’ssole cost and expenseand as part of EventStaffing (other than any area of the Stadium
operated by the Stadium’sconcessionaire during the Spring Rodeoor RodeoFestival in question or
any portion of the ComplexGroundswhere Landlord derives parking revenues, which shall be
cleaned at Landlord’ssole cost and expenseand as part of LandlordStaffing) ("Event Cleaning")
and (iii) after the last Spring RodeoEventor RodeoFestival Eventis held in each calendar year,
Landlord shall (a) perform the normal Event Cleaning that wouldotherwise be performedafter
Spring RodeoEvent or RodeoFestival Event, (b) clean the PerformanceArea (after removing
RodeoDirt in accordancewith Section 6.2.2), any area of the Stadiumoperated by the Stadium’s
concessionaire during the Spring Rodeoor RodeoFestival in question and the ComplexGrounds,
all at its sole cost and expenseand as part of LandlordStaffing and (c) clean the remainderof the
LeasedPremisesat Tenant’s sole cost and expenseand as part of Event Staffing and as necessaryto
retumthe remainderof the LeasedPremisesto the samelevel of cleanliness as delivered to Tenant
on the first day of the SpringRodeoor RodeoFestival in question(the foregoingclauses (a), (b)
(c) collectively being the "Post-Event Cleaning"). Landlordand Tenant agree that Landlordshall
not commencePost-Event Cleaning, including the thorough and overall cleaning of the Leased
Premises as necessary to return the LeasedPremisesto the samelevel of cleanliness delivered to
Tenant on the first day of the Spring Rodeoor RodeoFestival in question and any cleaning for any
future Event, until four (4) hours after the last Spring RodeoEventor RodeoFestival Eventis held
in each calendar year. Further, prior to the commencement
of any Post-Event Cleaning, Landlord
shall submitto Tenant,for Tenant’sconsent,aproposalsetting forth Tenant’sentire cost for the PostEvent Cleaningfor such Spring Rodeoor RodeoFestival, as applicable. In the event that Landlord
and Tenantare unable to mutuallyagree as to Tenant’s entire cost for the Post-EventCleaningfor
the Spring Rodeoor RodeoFestival in question, Tenantshall only be responsible for the reasonable
and actual costs of Landlordin performingthe Post-EventCleaningin accordancewith this Section
6.1.5.
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6.1.6 Security for ComplexGrounds.At all times during the Lease Termand on
a twenty-four(24)hourbasis, Landlordshall provide, at its sole cost and expense,security personnel
for the ComplexGrounds(other than Landlord’s Land, the RodeoLandand the Additional Parking
Land).
Section 6.2 Maintenance and Repairs.
6.2.1 Landlord’sObligation. Landlord shall, throughout the Lease Term, do the
following (collectively, the "Maintenanceand Capital Repair Work"):
(a)
Keep and Maintain the Leased Premises, taken as a whole, and each
componentthereof, respectively taken as awhole,in a First Class Conditionand performall
Maintenanceand all Capital Repairs, or cause the performanceof all Maintenanceand all
Capital Repairs, necessary to accomplishthe foregoing;
(b)
Maintainand keep, or cause to be Maintainedand kept, the LeasedPremises,
taken as awhole,and each component
thereof, respectively taken as awhole,in a clean, neat
and orderly condition given the nature and use of the LeasedPremises; and
(c)
Agreement.
Upgradethe Leased Premises if and as provided in the Stadium Tri-Party
Neither Section 6.1 nor this Section 6.2 shall apply to, and Landlordshall haveno obligation with
respect to, cleaningor janitorial services for Tenant’sFacilities or the Joint Club/Rodeo
Store and
Tenant, at its owncost and expense, shall provide such cleaning and janitorial services as maybe
necessary or appropriate to keep Tenant’s Facilities and the Joint Club/RodeoStore clean and in
goodorder for the purposesfor whichTenanthas been granted the right to use and occupythe same.
6.2.2 Readinessof the PerformanceArea. Landlord, at Landlord’s sole expense,
shall provide the Spring RodeoPreparation Services for each BookedSpring Rodeoand the Rodeo
Festival Preparation Services for each BookedRodeoFestival (except the installation and removal
of the SoundBaffles for the RodeoFestival, if necessary,shall be paid for by Tenantas part of Event
Staffing) and tender the PerformanceArea in a First Class Conditionfor any such TenantEvent and
other activities. For each Spring Rodeo,Tenantwill use reasonable, goodfaith efforts to obtain a
donation of the use of the equipmentnecessaryto removeand install the RodeoDirt as part of the
Spring RodeoPreparation Services, for Landlord’suse in connectiontherewith, but Tenant’s failure
to so obtain such equipmentshall not relieve Landlordof its obligation to so install and removethe
RodeoDirt in accordance with this Section 6.2.2. Notwithstanding anything to the contrary
containedin this Section 6.2.2, nothingin this Section 6.2.2 is meantto, or shall be deemedto, (i)
imposeany requirement on Landlord to upgrade the Stadiumor makeCapital Repairs except for
such upgradesand Capital Repairs as are required pursuant to other Sections of this StadiumLease
or pursuant to the StadiumTri-Party Agreement,(ii) imposeany requirementor liability on Landlord
to maintain the RodeoDirt during the Spring Rodeoafter it has been installed by Landlord in
accordancewith the requirementsof this Section 6.2.2 or (iii) subject to the terms of this Stadium
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Lease or the StadiumTri-Party Agreement,prohibit Tenant from undertaking and performing any
and all other services necessary to prepare the Leased Premises for any Tenant Event.
Notwithstandinganything in the Principal Project Documentsto the contrary, any RodeoDirt not
used by Landlord in satisfying its obligations under the Existing RodeoLease and this Stadium
Leaseshall be madeavailable for Tenant’s use, at no cost or charge to Tenant, provided that (i)
Tenant uses such RodeoDirt in connection with a Tenant Event and (ii) Tenant returns such Rodeo
Dirt to Landlordwithin five (5) days after the conclusionof the SpringRodeoor RodeoFestival then
in question.
Section 6.3
Changes, Alterations and Additional Improvements. The rights of
Tenant and Landlord to makechanges, alterations and additional improvementsto the Leased
Premises are set forth in the StadiumTri-Party Agreement.
Section 6.4
Mechanics’Liens and Claims.
6.4.1 Tenant. If any Lien or claim of Lien, whether choate or inchoate
(collectively, any "Mechanic’s
Lien")shall be filed against the interest of Landlordor Tenantin
the LeasedPremises, or against Landlordor any Property of Landlord,by reason of any work,labor,
services or materials supplied or claimedto have been supplied on or to the LeasedPremisesby or
on behalf of Tenant, subject to Landlordtimely fulfilling its paymentobligations under the Project
Agreement
and Article 6 of this StadiumLease, Tenant, at its sole cost and expense,after notice of
the filing thereof but in no event less than fifteen (15) days prior to the foreclosure of any such
Mechanic’sLien, shall cause the sameto be satisfied or dischargedof record, or effectively prevent,
to the reasonable satisfaction of Landlordby injunction, payment,deposit, bond, order of court or
otherwise, the enforcementor foreclosure thereof against the Leased Premises, Landlord or any
Property of Landlord.If Tenantfails to satisfy or discharge of record any such Mechanic’sLien, or
effectively prevent the enforcementthereof, by the date whichis fifteen (15) days prior to the
foreclosurethereof, then Landlordshall havethe right, but not the obligation, to satisfy or discharge
such Mechanic’sLien by paymentto the claimant on whosebehalf it was filed and, subject to
Landlordtimely fulfilling its paymentobligations under the Project Agreement
and Article 6 of this
StadiumLease, Tenant shall reimburseLandlordwithin fifteen (15) days after demandtherefor for
amountspaid, together with interest on such amountsat the Interest Rate fromthe date such amounts
are paid by Landlorduntil reimbursedby Tenant, together with reasonableattorneys’ fees, costs and
expensesso incurred by Landlord, without regard to any defense or offset that Tenant has or may
have had against such Mechanic’sLien claim.
6.4.2 Landlord. If any Mechanic’s Lien shall be filed against the interest of
Tenant or Landlordin the LeasedPremises, or against Tenant or any Property of Tenant by reason
of any work, labor, services or materials supplied or claimed to have been supplied on or to the
Leased Premises by or on behalf of Landlord, subject to Tenant timely fulfilling its payment
obligations under the Project Agreementand Article 6 of this StadiumLease, if any, Landlord, at
its sole cost and expense,after notice of the filing thereof but in no event less than fifteen (15) days
prior to the foreclosure of any such Mechanic’sLien, shall cause the same to be satisfied or
dischargedof record, or effectively prevent, to the reasonablesatisfaction of Tenantby injunction,
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payment,deposit, bond, order of court or otherwise, the enforcementor foreclosure thereof against
the LeasedPremises, Tenantor any Property of Tenant. If Landlordfails to satisfy or discharge of
record any such Mechanic’sLien, or effectively prevent the enforcementthereof, by the date which
is fifteen (15) days prior to the foreclosure thereof, then Tenantshall havethe right, but not the
obligation, to satisfy or discharge such Mechanic’sLien by paymentto the claimant on whosebehalf
it wasfiled and, subject to Tenant timely fulfilling its paymentobligations under the Project
Agreementand Article 6 of this StadiumLease, if any, Landlord shall reimburse Tenant within
fifteen (15) days after demandtherefor for amountspaid, together with interest on such amounts
the Interest Rate from the date such amountsare paid by Tenant until reimbursed by Landlord,
together with reasonable attorneys’ fees, costs and expensesso incurred by Tenant, without regard
to any defense or offset that Landlordhas or mayhave had against such Mechanic’sLien claim.
Section 6.5
Tenant’sRemedialWork. Tenant shall be responsible for paying the cost
of performing,any and all corrective or remedialactions required by applicable Governmental
Rules
to be performedwith respect to (i) any Environmental
Event causedby Tenant, or any of its agents,
contractors or subcontractors, guests or invitees at any time and (ii) any HazardousMaterials that
are introduced to the LeasedPremiseson or after the Commencement
Date by Tenant, or any of its
agents, Space Tenants, contractors or subcontractors, guests or invitees ("Tenant’s Remedial
Work"). Tenant shall promptly inform Landlord and all applicable GovernmentalAuthorities of
any EnvironmentalEvent or HazardousMaterials discovered by Tenant (or any agent, SpaceTenant,
contractor or subcontractor of Tenant) in, on or under the Leased Premises and promptly shall
furnish to Landlordany and all reports and other information available to Tenant concerningthe
matter. Landlordand Tenant shall promptlythereafter meet to discuss the steps to be taken to
investigate and, if necessary, remedysuch matter, including mutual selection of an independent
environmentalconsultant to evaluate the condition of the LeasedPremisesand materials thereon and
therein. Ifitis determinedpursuant to an evaluation conductedby the mutuallyselectedindependent
environmentalconsultant that remediationof the sameis required by this Section 6.5, then Tenant
shall pay the costs of such evaluation and Landlord shall perform Tenant’s RemedialWorkat
Tenant’scost and expenseand with due diligence. Alternatively, if it is determinedpursuant to an
evaluation conducted by the mutually selected independent environmental consultant that
remediation of the same is required by Section 6.6, then Landlord shall pay the costs of such
evaluation and shall performLandlord’s RemedialWorkat its owncost and expense and with due
diligence.
Section 6.6
Landlord’s RemedialWork.
Landlord shallbe responsible for performing
or causingto be performed,and for payingthe cost of performing,any and all corrective or remedial
actions required by applicable GovernmentalRules to be performed with respect to (i) any
EnvironmentalEvent causedby Landlordor any of its agents, contractors or subcontractors, guests
or invitees, other tenants or licensees or their agents, contractorsor subcontractors,guestsor invitees,
(ii) any HazardousMaterials at the Leased Premises as of the Commencement
Date and (iii)
HazardousMaterials that are introduced to the LeasedPremiseson or after the Commencement
Date,
except HazardousMaterials introduced by Tenant, or any of its agents, SpaceTenants, contractors
or subcontractors, guests or invitees ("Landlord’s RemedialWork"). Landlord shall promptly
inform Tenant and all applicable GovernmentalAuthorities of any such EnvironmentalEvent or any
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HazardousMaterials discovered by Landlord(or any agent, contractor, subcontractor, other tenant
or licensee of Landlord)in, on or under the LeasedPremisesand promptlyshall furnish to Tenant
any and all reports and other informationavailable to Landlordconcerningthe matter. Landlordand
Tenantshall promptlythereafter meetto discuss the steps to be taken to investigate and, if necessary,
remedysuch matter, including mutual selection of an independent environmental consultant to
evaluate the condition of the Leased Premises and any materials thereon and therein. If it is
determinedpursuant to an evaluation conductedby the mutually selected independentenvironmental
consultant that remediationof the sameis required by this Section 6.6, then Landlordshall pay the
costs of such evaluation and shall perform Landlord’s RemedialWorkat its owncost and expense
and with due diligence. Alternatively, if it is determinedpursuant to an evaluation conductedby a
mutuallyselected independentenvironmentalconsultant that remediationof the sameis required by
Section 6.5, then Tenantshall pay the costs of such evaluation and shall performTenant’s Remedial
Workat its owncost and expenseand with due diligence.
Section6.7 Utilities. Landlordshall, at its sole cost and expense,causethe Utilities to
be supplied as maybe necessaryor appropriate for the operation of the LeasedPremisesand Tenant’s
use and occupancythereof in accordance with the terms of this Stadium Lease and which, with
respect to electrical utilities is sufficient to operate (i) the Scoreboardand computerfacility aspects
of the Scoreboard,including powerused to light interior and exterior advertising panels and (ii)
the locations and within the capacity limits of the electrical componentsof the Stadiumdescribed
in the Final Plans, all electricity consumingequipment,fixtures and outlets, including any and all
stage lighting and audio/visual equipment(including pyrotechnics) necessary for the holding of
concert or other performanceon the PerformanceArea. Landlordshall pay the cost of any tap fees,
special equipment,line extensionor other hookupchargesof any kind relating to any of the Utilities
and Tenant shall not be responsible for any such hookupcharges. Notwithstandingthe foregoing
in this Sectionto the contrary, (i) Tenantshall be s 01elyresponsiblefor obtainingservice at the point
of consumptionof, and for the paymentof all charges (including deposits), programming
fees and
service charges, for Tenant’s use of telephone service and cable television service in Tenant’s
Facilities, providedthat no hookupcharges shall be imposedby Landlordfor such purposeand (ii)
Tenantshall be responsible for reimbursingLandlordfor the actual cost of Utilities in the portion
of the Stadiumbeing used by Tenant during a Tenant Incidental Event and that are incurred as a
direct result of the holdingof such TenantIncidental Event.
6.7.1
Landlord’sLiability for Interruptionof Utilities. Except for Tenant’s
right of abatementand termination as providedin Article 18 hereof and except as providedelsewhere
in this Section 6.7, Landlordshall incur no liability to Tenanton account of any interruption or
stoppage of any Utilities to the Leased Premises if such interruption or stoppage is beyondthe
reasonable control of Landlord, provided Landlord immediatelycommences
reasonable efforts, in
goodfaith to (a) mitigate the effects of such interruption or stoppageand (b) restore full service
any of such Utilities. For purposesof the preceding sentence (without limiting the meaningof the
phrase "beyond the reasonable control of Landlord"), it shall not be deemedthat any such
interruption or stoppagewasbeyondthe "reasonable control of Landlord"if(i) the principal reason
for such interruption or stoppage was the failure or refusal of Landlord to pay a monetarysum
(unless this StadiumLease requires Tenantto pay such sumand Tenant has failed to pay such sum)
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or (ii) such interruption of or stoppagewascausedby (a) faulty design of the LeasedPremises,
Project or the chilled water plant serving the LeasedPremises, (b) failure of the LeasedPremises,
the Project or the chilled water plant serving the LeasedPremisesto be constructed in accordance
with the Principal Project Documents,or with respect to the chilled water plant, the applicable
design and construction documents,(c) the act or omission of Landlord, the Countyor a County
Affiliate or any of their contractors, subcontractors, laborers or materialmenor (d) the failure
Landlordto enter into a contract or agreementfor providingsuch Utility with (X) a provider with
adequatecapacity to provideany of such Utilities, unless the provider of such Utilities is selected
by Tenant and the NFLClub pursuant to the BrandingRights, PourageRights or Service Rights held
by themunder the Principal Project Documentsand Landlordhas not approvedthe identity of such
provider, such approval not to be unreasonablywithheld by Landlordand (Y) a requirementin such
contract or agreementthat such Utilities be providedon a firm and uninterruptable basis, unless the
provider of such Utilities is selected by Tenantand the NFLClub pursuant to the BrandingRights,
Pourage Rights or Service Rights held by them under the Principal Project Documentsand such
provider refuses to contract to providesuch Utilities on a firm and uninterruptable basis.
6.7.2 Landlord’s Covenants Regarding Utilities.
agrees as follows regardingUtilities at the LeasesPremises:
Landlord covenants and
(1)
Tenant shall have the right to review and approve the Utility service
metering plans for the portion of the Leased Premises where Tenant is
obligated to pay Utility costs (including maintenance,calibration, auditing
and calculating corrections);
(2)
Tenant shall have the right to participate in negotiation of key Utility
service provider agreementsin accordancewith the terms of the Stadium
Tri-Party Agreement;
(3)
Landlordshall use reasonable efforts to insure that the provider of the
Utility service in question shall have adequate capacity to provide the
necessaryutilities to the LeasedPremisesfor the term of such agreement,
unless the providerof such Utilities is selected by Tenantand the NFLClub
pursuant to the BrandingRights, PourageRights or Service Rights held by
themunder the Principal Project Documentsand such provider refuses to
contract to providesuch Utilities on a firm and uninterruptable basis; and
(4)
Theagreementto providethe Utility service in question shall providethat
such Utility service be providedon a firm and uninterruptable basis, unless
the provider of such utilities is selected by Tenant and the NFLClub
pursuant to the BrandingRights, PourageRights or Service Rights held by
them under the Principal Project Documentsand such provider refuses to
contract to providesuch Utilities on an firm and uninterruptable basis.
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ARTICLE 7
CONCESSION, BRANDING, POURAGE, AND SERVICE RIGHTS
Section 7.1
Concessions.
7.1.1 Grant. During Tenant Events, Tenant shall have the exclusive right to
license, sell, display, distribute, cater and store (as to storage, in locations reasonablyconvenientto
Tenant or its Concessionaireand reasonably designated by Landlord) the Concessions, and effect
all ConcessionsOperations, within the areas of the LeasedPremises, each as designated in this
Section 7.1.1.
7.1.1.1
Stadium.
(a)
Halo Suites, Sky Box Suites and Director’s Club. During Tenant
Events,Tenantshall have(i) the exclusivefight to license, sell, display, distribute, cater and store
(as to storage, in locations reasonably convenientto Tenant or its Concessionaireand reasonably
designated by Landlord) all Concessions, and effect the ConcessionsOperations regarding same,
within the Halo Suites, SkyBoxSuites and Director’s~ Club, and (ii) the right to receive all
Concession Revenuestherefrom.
(b)
Suites, Club Level and RodeoClub’s. DuringTenant Events, Tenant
shall have(i) the exclusive right, subject to the termsof this Section7.1.1. l(b), to license, sell,
display, distribute, cater and store (as to storage, in locations reasonablyconvenientto Tenantor its
Concessionaire and reasonably designated by Landlord) all non-alcoholic and alcoholic beverages
(including beer, wine and all liquor), and effect the ConcessionsOperationsregarding same, within
the Suites (that are not HaloSuites or SkyboxSuites), the Club Level(including the north and south
portions of this level of the Stadium)and the RodeoClubs in the Stadium, and (ii) the right
receive all ConcessionRevenuestherefrom. Additional rights in favor of Tenant regarding the
Suites, the ClubLevel (including the north and south portions of this level of the Stadium)and the
RodeoClubs are provided for in Section 5.6 of the StadiumTri-Party Agreement.Notwithstanding
anythingherein to the contrary, the foregoingshall not preclude the concessionairefor the Stadium
licensed pursuant to the StadiumTri-Party Agreement
from beinggranted the right to sell beer, wine
and non-alcoholic beveragesat such locations within the Club Level (including the north and south
portions of this level of the Stadium)as such concessionaire shall be entitled to sell its other
ConsumableConcessionspursuant to the concession agreemententered into in accordancewith the
Stadium Tri-Party Agreement.
7.1.1.2 ComplexGrounds. During Tenant Events and subject to Section
5.2.2.3 with respect to the RodeoFestival only, Tenantshall have(i) the exclusiveright to license,
sell, display, distribute, cater and store all Concessions(other than alcoholic beverages,including
beer, wine and all liquor), and effect the Concessions Operations regarding same, within the
ComplexGrounds (including the Highly Restricted Area and any Rodeo Clubs on the Complex
Grounds), and (ii) the right to receive all Concessionrevenues therefrom. Notwithstanding
forgoing, the followingshall apply:
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(a)
Tenantshall havethe fight to license, sell, display, distribute and
store alcoholic beverages, including beer, wine and liquor, and
effect the ConcessionsOperations regarding same, (x) at certain
events held by Tenant at the ComplexGrounds (including the
Highly Restricted Area) on Tenant Event Days, such as the "World
Championship
Barbeque"(and any other barbequeheld by Tenant),
the "Chili Cook-off’(and any other cook-off held by Tenant), the
"Food Festival," the "Hide Out" and the "WineCompetition"(and
any other winecompetitionor tasting held by Tenant)and (y) in
Rodeo Clubs on the ComplexGrounds; and
(b)
At such time as the Rodeo’s AramarkAgreementshall expire or
otherwise terminate and only at such time, the concessionaire for
the Stadiumlicensed pursuant to the StadiumTri~Party Agreement
shall be permitted to sell only beer and wine at the Complex
Grounds(including the Highly Restricted Area) on Tenant Event
Daysand only (i) in areas designated by Tenant, in Tenant’s sole
discretion, but in all eventsto be not less than four (4) such areas
and (ii) by renting such designated areas from Tenant at a fair
market rate to be negotiated between Tenant and such
concessionaire on annual basis, unless agreed otherwise.
7.1.1.3 Leased Premises.
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(a)
Tenant Event Days. OnTenant Event Days and subject to Section
5.2.2.3 with respect to the use of the ComplexGroundsduring the
RodeoFestival only, Tenantshall have (i) the exclusive right
license, sell, display, distribute and store all Non-Consumable
Concessions that are comprised of entertainer merchandise or
Houston Livestock Showand Rodeo namedand logo merchandise,
and effect the ConcessionsOperations regarding same, within the
entire LeasedPremises(including the Joint Club/Rodeo
Store), (ii)
the right to receive all ConcessionRevenuestherefromand (iii) the
right to designatethe locations for the sale of such items withinthe
Leased Premises, in its sole and absolute discretion. OnTenant
Event Days, Landlord shall makeavailable to Tenant for its
exclusive use and control one-half of all merchandise/novelty
booths and stands equally disbursed throughout the Stadium for
purposesof effectuating its rights under this Section7.1.1.3(a).
(b)
Lease Term.At all times during the Lease Term,Tenant shall have
(i) the exclusiveright to license, sell, display, distribute and store
all Non-Consumable
Concessionsthat are comprisedof entertainer
merchandise or Houston Livestock Show and Rodeo named and
34
logo merchandise,and effect the ConcessionsOperationsregarding
same,within the Joint Club/Rodeo
Store and (ii) the fight to receive
all Concession Revenuestherefrom.
7.1.1.4 PrivateCatering/Self-Service. Tenantshallhavethenon-exclusive
right to privately cater or self-serve all Consumable
Concessions,and shall not be required to use
the concessionaire for the Stadiumlicensed pursuant to the StadiumTri-Party Agreementonly, (i)
at any TenantIncidental Event, (ii) to any entertainers, performers,supportcrew, staff, technicians
or stage crew at any Tenant Event or Tenant Non-Eventor (iii) pursuant to Tenant’s Concession
Rights.
7.1.2 Termsof Grant.Tenant shall have the exclusive right to (i) solicit, select
and contract with one or moreConcessionaires to operate the ConcessionOperations within the
ConcessionRights Area, (ii) negotiate and enter into agreementswith Concessionairesto administer
any such concessionagreementsand (iii) to determinethe location of all concessionfacilities within
the ConcessionRights Area. Neither Tenant nor any of its subtenants, licensees, Concessionaires,
employeesor agents shall conduct or permit any ConcessionOperations outside of the Concession
Rights Area, except with the prior written consentof Landlord,whichright to consentis subject to
the terms of the StadiumTri-Party Agreement.Landlord agrees to complywith all provisions of
Tenant’sconcessionagreementsentered into pursuant to this Section 7.1, including any exclusives
or priorities granted to ConcessionairesduringTenantEvents. Tenant and the Concessionaireshall
at all times complywith all Governmental
Rules and shall procure any and all permits or licenses
required by any Governmental Authority relating to the Concession Rights and Concession
Operations.
Section 7.2 Branding.Tenant shall retain, and Landlord hereby grants Tenant, on an
exclusive basis all ComplexGroundsBrandingRights during TenantEvents and the right to receive
all revenues derived therefrom. The holder of the ComplexGrounds Branding Rights shall be
permittedto display its product, service and retail rights identification, including, its trademark,
tradenameand logos associated therewith, in all areas of the ComplexGroundswheresuch product,
service or retail right is sold, delivered or providedwithoutany such identification constituting
Advertising. A ComplexGrounds Branding Rights holder shall, at the election of Tenant, be
permitted to identify itself as the "official provider" to TenantEventsof the applicable product,
serviceor retail right.
Section 7.3 Pourage. Tenant shall retain, and Landlord hereby grants Tenant, on an
exclusive basis all ComplexGroundsPourageRights during Tenant Events and the right to receive
all revenues derived therefrom. The holder of the ComplexGrounds Pourage Rights shall be
permitted to display its product identification, including, its trademark, tradenameand logos
associated therewith, in all areas of the ComplexGroundswheresuch product sold or dispensed,
including on namebrands, dispensing equipment,drink containers, cups and beveragetrays, napkins
and similar items used to dispense such products, without any such identification constituting
Advertising. A ComplexGrounds Pourage Rights holder shall, at the election of Tenant, be
permittedto identify itself as the "official provider" to TenantEventsof the applicable product.
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Section 7.4 Service Ri~,hts. Tenant shall retain, and Landlord hereby grants Tenant, on
an exclusive basis, all ComplexGroundsService Rights during Tenant Events and the right to
receive all revenues derived therefrom. The holder of the ComplexGroundsService Rights shall
be permitted to display its service identification, including without limitation, its trade name,
trademarksand logos associated therewith, in all areas of the Complex
Groundswheresuch services
are provided without such display constituting Advertising. The ComplexGroundsService Rights
holdersshall, at the election of Tenant,be permittedto identify itself as the "official provider"to the
TenantEvents of the applicable service.
ARTICLE 8
CAPITAL REPAIR AND REPLACEMENT COSTS
Section 8.1 Capital Repair ReserveFund. Landlord shall (i) establish and maintain the
Capital Repair ReserveAccountfor the purposeof holding, applying, investing and transferring the
Capital Repair ReserveFund,and (ii) hold and disburse the funds required to be deposited in the
Capital Repair Reserve Fund, all in accordance with the StadiumTri-Party Agreement.
Section 8.2 Landlord’sCapital Repair Reserve FundDeposits. Landlord shall deposit,
or cans e to be deposited, the aggregate amountof TwoMillion Five HundredThousandand No/100
Dollars ($2,500,000.00) into the Capital Repair Reserve Accounteach Lease Year pursuant to the
FundingAgreement.Subject to the provisions of Article 13 and Article 14 and the StadiumTriParty Agreement,the Capital Repair Reserve Fundmay3nly be used to pay the costs of Capital
Repairs and maynot be pledged, mortgaged,encumberedor otherwise used as security for any debt
without the prior written consent of Tenant and the NFLClub. The Capital Repair Reserve Fund
shall be invested only in PermittedInvestmentsand all earnings and interest thereon shall accrue to
the Capital Repair ReserveFundand shall be available as part of the Capital Repair ReserveFund
for the uses permitted by the StadiumTri-Party Agreement.
Section 8.3 Use of Capital Repair Reserve Fund. The Capital Repair Reserve Fund
shall be utilized only as set out in this StadiumLease and the StadiumTri-Party Agreement.
ARTICLE 9
IMPOSITIONS
Section 9.1 Taxes and Assessments.
9.1.1 Impositionson LeasedPremises. Landlord and Tenant agree thatthe Leased
Premises and Landlord’s FF&Eare governmentally ownedand should not be subject to Taxes and
Impositions (other than the Parking Tax and AdmissionsTax). The Parties agree to reasonably
cooperate with each other and the Sports Authority in order to keep the Leased Premises and
Landlord’s FF&Efree from Taxes and Impositions (other than the Parking Tax and Admissions
Tax), which cooperation mayinclude the acquisition of the Leased Premises and Landlord’s FF&E
by the Sports Authority with a lease back to Landlord. Nevertheless, throughout the Lease Term,
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in the event that Taxes or Impositions (excluding the Parking Tax and Admissions Tax, but
including amounts payable by the "operator" under Section 334.044(d) of the Texas Local
GovernmentCode, as amended)are levied on, or payable with respect to, the Leased Premises and
Landlord’s FF&E
or the LeaseholdEstate, Tenant shall not be responsible for such.
9.1.2 Impositions on Tenant OwnedPersonalty. Throughout the Lease Term,
Tenant shall pay, or cause to be paid, all Taxesand other Impositionslevied on, or payable with
respect to, Tenant’s FF&E
that is ownedby Tenant or that is used by Tenantand is not part of the
Leased Premises. Tenant shall pay all such Taxes and other Impositions directly to the taxing
authority or other payeethereof.
9.1.3 Future Taxes or Impositions. Tenant shall not be responsible for any
Parking Tax or AdmissionsTax, whether nowexisting or hereafter levied, other than Admissions
Tax or Parking Tax that, whencombinedwith any surcharge related thereto that constitutes
MiscellaneousRevenues,is within the limits specified in the definition of MiscellaneousRodeo
Revenues.Additionally, no Targeted Taxshall be imposed.If any Targeted Taxis imposedduring
the LeaseTerm,Tenantshall, in addition to any other rights or remediesavailable at law orin equity,
receive a credit against the GuaranteedPaymentor any other paymentsowedby Tenant hereunder,
in the amountof the TargetedTax(a) paid by Tenant or (b) otherwise paid to the extent any
Targeted Tax is imposedin connection with a Tenant Event. Notwithstanding anything herein to
the contrary, Tenantagrees that a Parking Taxthat is not otherwisea TargetedTaxpursuant to the
terms of this StadiumLease and the Principal Project Documents
shall not be considered a Targeted
Tax merely because it is imposedon cars entering the Complex
Groundsfor Tenant Events that are
not in the Stadium.
ARTICLE 10
INSURANCE AND INDEMNIFICATION
Section 10.1 Policies Required.
10.1.1 Landlord’s Property Insurance Policy.
Commencing on the
Commencement
Date, and at all times during the Lease Term,Landlordshall, at its sole cost and
expense, obtain, keep, and maintain, or cause to be obtained, kept and maintained, an "All Risk"
property insurance policy (the "Landlord’sPropertyInsurancePolicy") providing for coverage
of the Leased Premises (including any Additional Landlord Workor Additional Tenant Work)
against loss or damagedue to Insured Casualty Risks on commerciallyreasonable terms from time
to time available with respect to improvementsin Houston, Harris County, Texas similar to the
LeasedPremises, and affording coverage for, amongother things, demolition and debris removal,
namingLandlord as the first namedinsured, Tenant and the NFLClub as additional insureds, and
any Facility Mortgageeor Tenant Mortgageeas a mortgagee, as their respective interests may
appear, for a sumat least equal to one hundredpercent (100%)of the insurable replacementcost
the Leased Premises, to be determined annually during the Lease Term, and with any deductible,
which shall be paid by Landlord, not exceeding OneHundredFifty Thousandand No/100Dollars
($150,000.00) per loss, unless not available on commercially reasonable terms in which
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circumstance the lowest deductible in excess of One HundredFifty Thousandand No/100Dollars
($150,000.00)available on commerciallyreasonable terms shall be obtained, but in all events the
deductible, which shall be paid by Landlord, shall not exceed TwoHundredFifty Thousandand
No/100Dollars ($250,000.00). TheLandlord’sProperty Insurance Policy shall provide for business
interruption insurance in an amountcalculated in accordancewith the provisions of AppendixG of
this StadiumLease. The Landlord’s Property Insurance policy shall additionally complywith all
requirementsapplicable to it set forth in the Insurance Plan Additional Requirementsto the extent
not inconsistent with this Article 10.
10.1.2 Policies RequiredFor Additional LandlordWork- Builder’s All Risk
Policy. In the event the reasonably anticipated total cost of any Additional Landlord Work
(calculated so as to include, but not be limited to, all sumspayableunder any Additional Landlord
Workconstruction contracts related thereto) is equal to or exceedsOneMillion and No/100Dollars
($1,000,000.00)and such Additional LandlordWorkis not coveredduring the course of construction
by the Landlord’s Property Insurance Policy, then prior to the commencement
of any Additional
LandlordWorkand at all times during the performanceof such Additional LandlordWork,Landlord
shall obtain, keepand maintain or cause to be obtained, kept and maintained, builder’s "all risk"
insurance policies (collectively, the "Landlord’s
Builder’sAll Risk Policies") affording coverage
of such Additional LandlordWork,whetherpermanentor temporary, and all materials intended for
incorporationinto the LeasedPremises,whetherstored on-site or off-site, related thereto, against
loss or damagedue to Insured Casualty Risks on commerciallyreasonable terms from time to time
available with respect to similar workin Houston,Harris County,Texas. TheLandlord’sBuilder’s
All Risk Policies shall be written on an occurrencebasis and on a "replacementcost" basis, insuring
one hundred percent (100%)of the insurable value of the cost of the Additional LandlordWork,
using a completedvalue form (with permission to occupyupon completion of workor occupancy),
namingLandlordas the first nameinsured, Tenant and the NFLClubas additional insureds, and any
Facility Mortgageeor Tenant Mortgageeas a mortgagee,as their respective interests mayappear,
and with any deductible, which shall be paid by Landlord, not exceeding One HundredFifty
Thousandand No/100Dollars ($150,000.00) per loss; provided, however, that, in the case of
demolition and debris removalcoverage, Landlordshall carry coverage in not less than the full
amountnecessary to demolishthe Additional LandlordWorkand to removeall debris that mayexist
after the occurrence of any Insured Casualty Risks. The Landlord’s Builder’s All Risk Policies
additionally shall complywith all requirementsapplicable to themset forth in the Insurance Plan
Additional Requirementsto the extent not inconsistent with this Article 10. The cost of any
Landlord’sBuilder’s All Risk Policy shall be considered a cost of the Additional LandlordWork.
10.1.3 Additional Policies Required by Landlord During the Lease Term.
Commencing
on the Commencement
Date, and at all times during the Lease Term, Landlord shall,
at its sole cost and expense,obtain, keepand maintainor causeto be obtained, kept and maintained,
the followinginsurance policies:
(a)
CommercialGeneral Liability Policy. A commercialgeneral liability
insurance policy ("Landlord’sGLPolicy"), no morerestrictive than the current standard
ISOCommercial
Liability occurrenceform policy in use in the State of Texas, written on an
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occurrence basis and covering the entire AstrodomainComplexand the Additional Parking
Land(but havingsub-limits that are site-specific to the LeasedPremises), namingLandlord
as the namedinsured (with the effect that Landlordand its employeesare covered) and any
Facility Mortgagee,any Tenant Mortgagee,Tenant and the NFLClub as additional insureds,
affording protection against liability arising out of personal injury, bodily injury and death
and/or property damageoccurring, in, uponor about the LeasedPremisesor resulting from,
or in connectionwith, the construction, use, operation or occupancyof the LeasedPremises
and containing provisions for severability of interests. TheLandlord’sGLPolicy shall be
primary and noncontributory to any policies carried by Tenantor the NFLClub except that
Tenant’s GLPolicy shall be primary and noncontributory to the Landlord’s GLPolicy as to
(i) Tenant’sFacilities and the Joint Club/Rodeo
Store (whichshall be jointly primarywith
NFLClub’s "Tenant’s GLPolicy" as defined in the NFLClub Lease) at all times during the
Lease Term,(ii) the portion of the LeasedPremises comprisingthe PerformanceArea, the
Suites, the ClubLevel (including the north and south portions of such level of the Stadium),
the RodeoClubs and the ComplexGrounds(other than the portion where Landlord derives
parkingor any other revenues)all on TenantEventDaysand (iii) the portion of the Stadium
being used in connection with a Tenant Non-Eventduring the holding of a Tenant NonEvent. The Landlord’s GLPolicy shall be in sugh amountand such policy limits so that
(i) the coverageand limits are adequateto maintain the Landlord’sExcess/UmbrellaPolicy
without gaps in coverage between the Landlord’s GL Policy and the Landlord’s
Excess/UmbrellaPolicy and (ii) the minimum
policy limits set forth in the Insurance Plan
Additional Requirementsare satisfied. TheLandlord’s GLPolicy additionally shall comply
with all requirementsapplicable to it set forth in the InsurancePlan AdditionalRequirements
to the extent not inconsistent with this Article 10.
(b)
Workers’ CompensationPolicy. A workers’ compensationinsurance
policy and any and all other statutory forms of insurance nowor hereafter prescribed by
applicable law, providing statutory coverageunder the laws of the State of Texasfor all
Persons employed by Landlord in connection with the Leased Premises and employers
liability insurance policy (collectively, the "Landlord’s Workers’Compensation
Poliey")
affording protection of not less than OneMillion and No/100Dollars ($1,000,000.00) for
bodily injury by accident (each accident), not less than OneMillion and No/100Dollars
($1,000,000.00)for bodily injury by disease (each employee)and not less than OneMillion
and No/100Dollars ($1,000,000.00)bodily injury by disease (policy limit), TheLandlord’s
Workers’ CompensationPolicy shall have an Alternate EmployerEndorsementin favor of
Tenant and the NFLClub and additionally shall complywith all requirementsapplicable to
it set forth in the InsurancePlan AdditionalRequirements
to the extent not inconsistent with
this Article 10. If requested by Tenant, every five (5) years during the Lease Termthe
amountof Landlord’s Workers’CompensationPolicy shall be adjusted by the CPI Fraction
as of the end of such fifth year by multiplying the initial OneMillion and No/100Dollar
($1,000,000.00) amountof such policy by the then CPI Fraction.
(c)
Excess/UmbrellaPolicy. Anexcess or umbrella liability insurance
policy ("Landlord’s Excess/Umbrella Policy"), written on an occurrence basis, in an
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amountnot less than SeventyMillion and No/100Dollars ($70,000,000.00) per occurrence
and in the aggregate for personal injury, bodily injury and death and/or property damage
liability combined,such policy to be written on an excess basis abovethe coveragesrequired
hereinabove(specifically listing such underlying policies) and following the form of such
underlying policies and namingLandlord as an insured and any Facility Mortgagee, any
Tenant Mortgagee,Tenant and the NFLClub as additional insureds. Every five (5) years
during the Lease Termthe amountof Landlord’s Excess/UmbrellaPolicy shall be adjusted
by the CPIFractionas of the end of such fifth year by multiplyingthe initial SeventyMillion
and No/100Dollar ($70,000,000.00) amountof such policy by such CPI Fraction.
(d)
ComprehensiveAutomobileLiability. A comprehensiveautomobile
liability policy, written on an occurrence basis, in an amountnot less than TwoHundred
Fifty Thousandand No/100Dollars ($250,000.00) per person, Five HundredThousandand
No/100Dollars ($ 500,000.00)per occurrence, with property damagecoverage in an amount
not less than OneHundredFifty ThousandandNo/100Dollars ($100,000.00) per occurrence
for all automobiles operated or .used by Landlord or the ComplexManageron the Leased
Premises(the "Landlord’sAutoPolicy"). Landlord’sAutoPolicy shall be (i) on a standard
form written to cover all owned,hired and non-ownedautomobiles,(ii) endorsedto include
Tenantand the NFLClubas additional insureds, (iii) contain cross-liability and severability
of interest endorsements
and (iv) state that this insuranceis primaryinsuranceas regards any
other insurance carried by Tenant.
10.1.4 Policies Required by Tenant. Commencingon the Commencement
Date,
and at all times during the LeaseTermand continuingthereafter until Tenanthas fulfilled all of its
obligations under Article 18 (unless otherwise providedbelow), Tenantshall, at its sole cost and
expense, obtain, keep and maintain or cause to be obtained, kept, and maintained, the following
insurance policies:
(a)
Commercial General Liability Policy. A commercial general
liability insurance policy ("Tenant’s GLPolicy"), no morerestrictive than the current
standard ISO CommercialLiability occurrence form policy in use in the State of Texas,
written on an occurrence basis and limited to the LeasedPremises (or if not so limited,
havinga general aggregatelimit, if any, that shall be site-specific to the LeasedPremises),
namingTenant as the namedinsured (with the effect that Tenant and its employeesare
covered) and any Facility Mortgagee, any Tenant Mortgagee, the NFLClub and Landlord
as additional insureds, affording protection against liability arising out of personal injury,
bodily injury and death and/or property damageoccurring, in, upon or about the Leased
Premisesor resulting from, or in connectionwith, the use, operation or occupancyof the
LeasedPremises and containing provisions for severability of interests. The Tenant’s GL
Policy shall be primaryand noncontributoryto the Landlord’sGLPolicy as to (i) Tenant’s
Facilities and the Joint Club/RodeoStore (which shall be jointly primary with NFLClub’s
"Tenant’sGLPolicy" as defined in the NFLClub Lease) at all times during the Lease Term,
(ii) the portion of the Leased Premisescomprisingthe Performance
Area, the Suites, the Club
Level (including the north and south portions of such level of the Stadium),the RodeoClubs
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and the ComplexGrounds(other than the portion where Landlord derives parking or any
other revenues)all on TenantEvent Daysand (iii) the portion of the Stadiumbeing used
connection with a Tenant Non-Eventduring the holding of a Tenant Non-Event,otherwis e
the Landlord’s GLPolicy shall be primary and noncontributory to any policies carried by
Tenant. TheTenant’sGLPolicy shall be in such amountand such policy limits so that (i) the
coverage and limits are adequate to maintain the Tenant’s Excess/UmbrellaPolicy without
gaps in coverage betweenthe Tenant’s GLPolicy and the Tenant’s Excess/UmbrellaPolicy
and (ii) the minimum
policy limits set forth in the Insurance Plan Additional Requirements
are satisfied. TheTenant’sGLPolicy additionally shall complywith all other requirements
applicable to it set forth in the InsurancePlan Additional Requirementsto the extent not
inconsistent with this Article 10.
(b)
Workers’ CompensationPolicy. Aworkers’compensationinsurance
policy and any and all other statutory forms of insurance nowor hereafter prescribed by
applicable law, providing statutory coverageunder the laws of the State of Texasfor all
Persons employedby Tenant in connectionwith the LeasedPremises and employersliability
insurance policy (collectively, the "Tenant’s Workers’CompensationPolicy") affording
protection of not less than OneMillion and No/100Dollars ($1,000,000.00)for bodily injury
by accident (each acciden0, not less than OneMillion and No/100Dollars ($1,000,000.00)
for bodily injury by disease (each employee)and not less than OneMillion and No/100
Dollars ($1,000,000.00) bodily injury by disease (policy limit). The Tenant’s Workers’
CompensationPolicy shall have an Alternate EmployerEndorsementin favor of Landlord
and the NFLClub and additionally shall complywith all other requirementsapplicable to
it set forth in the InsurancePlan AdditionalRequirements
to the extent not inconsistent with
this Article 10. If requested by Landlord, every five (5) years during the Lease Termthe
amountof Tenant’s Workers’Compensation
Policy shall be adjusted by the CPIFraction as
of the end of such fifth year by multiplying the initial OneMillion and No/100Dollar
($1,000,000.00) amountof such policy by the then CPIFraction.
(c)
Excess/UmbrellaPolicy. Anexcess or umbrella liability insurance
policy ("Tenant’s Excess/UmbrellaPolicy"), written on an occurrence basis, in an amount
not less than Twenty-FiveMillion and No/100Dollars ($25,000,000.00)per occurrence and
in the aggregatefor personalinjury, bodily injury and death and/or propertydamageliability
combined,such policy to be written on an excess basis abovethe coveragesrequired under
this Section 10.1.4 (specifically listing such underlyingpolicies) and followingthe form
such underlying policies and namingTenant as insured and any Facility Mortgagee, any
Tenant Mortgagee,the NFLClub and Landlordas additional insureds. Everyfive (5) years
during the Lease Termthe amountof Tenant’s Excess/umbrellaPolicy shall be adjusted by
the CPI Fraction as of the end of such fifth year by multiplying the initial Twenty-Five
Million and No/100Dollar ($25,000,000.00) amountof such policy by such CPI Fraction.
(d)
Builder’s All Risk Policy. In the event the reasonably anticipated
total cost of any AdditionalTenantWork(calculated so as to include, but not be limited to,
all sumspayable under any Additional Tenant Workconstruction contracts related thereto)
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is equal to or exceeds OneMillion andNo/100Dollars ($1,000,000.00) and such Additional
Tenant Workis not covered during the course of construction by the Landlord’s Property
Insurance Policy, then prior to the commencement
of any Additional Tenant Workand at all
times during the performanceof such Additional TenantWork,Tenant shall obtain, keep and
maintainor cause to be obtained, kept and maintained,builder’s "all risk" insurancepolicies
(collectively, the "Tenant’s Builder’s All Risk Policies") affording coverage of such
Additional Tenant Work,whether permanentor temporary, and all materials intended for
incorporation into the LeasedPremises, whetherstored on-site or off-site, related thereto,
against loss or damagedue to Insured Casualty Risks on commerciallyreasonable terms
from time to time available with respect to similar workin Houston,Harris County,Texas.
TheTenant’s Builder’s All Risk Policies shall be written on an occurrence basis and on a
"replacementcost" basis, insuring one hundredpercent (100%)of the insurable value of the
cost of the Additional Tenant Work, using a completed value form (with permission to
occupyupon completionof workor occupancy), namingTenant as the first namedinsured,
Landlord and the NFLClub as additional insureds, and any Facility Mortgageeand any
Tenant Mortgageeas mortgagee, as their respective interests mayappear, and with any
deductible, which shall be paid by Tenant, not exceeding OneHundredFifty Thousandand
No/100Dollars ($150,000.00)per loss; provided, however,that, in the case of demolition
and debris removalcoverage, Tenantshall carry coverage in not less than the full amount
necessary to demolish the Additional Tenant Workand to removeall debris that mayexist
after the occurrenceof any Insured CasualtyRisks. TheTenant’sBuilder’s All Risk Policies
additionally shall complywith all requirementsapplicable to themset forth in the Insurance
Plan Additional Requirementsto the extent not inconsistent with this Article 10. Thecost
of any Tenant’sBuilder’s All Risk Policy shall be considereda cost of the AdditionalTenant
Work.
(e)
ComprehensiveAutomobile
Liability. A comprehensiveautomobile
liability policy, written on an occurrence basis, in an amountnot less than TwoHundred
Fifty Thousandand No/100Dollars ($250,000.00) per person, Five HundredThousandand
No/100Dollars ($500,000.00) per occurrence, with property damagecoverage in an amount
not less than OneHundredFifty Thousandand No/100Dollars ($100,000.00) per occurrence
for all automobiles operated or used by Tenant on the Leased Premises ("Tenant’s Auto
Policy"). Tenant’s AutoPolicy shall be (i) on a standard form written to cover all owned,
hired and non-ownedautomobiles, (ii) endorsed to include Landlord and the NFLClub
additional insureds, (iii) contain cross-liability and severability of interest endorsements
and
(iv) state that this insurance is primaryinsuranceas regards any other insurancecarried
Landlord.
Section 10.2 Surety Bonds. Prior to the commencement
of any Additional Landlord Work
(other than Maintenance) costing in excess of TwoHundredFifty Thousandand No/100Dollars
($250,000.00)and at all times during the performanceof such Additional LandlordWork(other than
Maintenance),Landlord shall cause the Additional Landlord Workcontractor to obtain, keep and
maintain such performanceand paymentbonds as are required by applicable GovernmentalRule or
if not required by applicable GovernmentalRule, as are commerciallyreasonable in light of the
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circumstances. The cost of any such paymentand performancebonds shall be considered a cost of
the Additional Landlord Work.Prior to the commencement
of any Additional Tenant Workcosting
in excess of TwoHundredFifty ThousandandNo/100Dollars ($250,000.00)and at all times during
the performance of such Additional Tenant Work,Tenant shall cause the Additional Tenant Work
contractor to obtain, keep and maintain such performanceand paymentbonds as are required by
applicable Governmental Rule or if not required by applicable Governmental Rule, as are
commercially reasonable in light of the circumstances. The cost of any such payment and
performancebondsshall be considered a cost of the Additional Tenant Work.
Section 10.3 Blanket or Master Policy. Any one or more of the types of insurance
coverages required in this StadiumLease (except for the Tenant’s GLPolicy whichshall have
general aggregate limit that shall be site-specific to the LeasedPremises, and the Landlord’sGL
Policy whichshall have a general aggregate limit that shall be site-specific to the Astrodomain
Complexand the Additional Parking Landand sub-limits specific to the Leased Premises) maybe
obtained, kept and maintainedthrough a blanket or master policy insuring other entities (such as
parent corporation of Tenant, Affiliates of Tenantor the general partner(s) thereof), providedthat
(a) such blanket or master policy and the coverage effected thereby complywith all applicable
requirements of this StadiumLease and (b) the protection afforded under such blanket or master
policy shall be no less than that whichwouldhavebeenafforded under a separate policy or policies
relating only to the LeasedPremises. If any excess or umbrellaliability insurancecoveragerequired
pursuant hereto is subject to an aggregate annual limit and is maintainedthrough such blanket or
masterpolicy, and if such aggregateannual limit is impairedas a result of claims actually paid by
morethan fifty percent (50%), the Party whocarries such policy hereundershall immediatelygive
notice thereof to the other Party and, within ninety (90) days after discoveryof such impairment,
the fullest extent reasonably possible, cause such limit to be restored by purchasing additional
coverage if higher excess limits have not been purchased.
Section 10.4 Failure to Maintain.If at any time and for any reason Tenant or Landlord
fails to provide, maintain,keepin force andeffect, or deliver to the other Party proof of, any of the
insurancerequired underthis StadiumLeaseand such failure continues for ten (10) days after notice
thereof fromthe other Party to Tenantor Landlord,as the case maybe, the other Party may,but shall
have no obligation to, procuresingle interest insurancefor such risks covetingthe other Party (or,
if no moreexpensive, the insurance required by this StadiumLease), and Tenantor Landlord,as the
case maybe, shall, within ten (10) days following the other Party’s demandand notice, pay and
reimbursethe other Party therefor.
Section 10.5 Additional Policy Requirements.
10.5.1 Insurers; Certificate and Other Requirements.
(a)
All insurance policies required to be procured under this Stadium
Leaseshall be effected under valid policies issued by insurers whichhavean Alfred M.Best
Company,
Inc. rating of"A-"or better and a financial size category of not less than "X" (or,
if Alfred M. Best Company,Inc. no longer uses such rating system, then the equivalent or
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most similar ratings under the rating systemthen in effect, or if Alfred M.Best Company,
Inc. is no longer the most widely accepted rater of the financial stability of insurance
companies providing coverage such as that required by this Stadium Lease, then the
equivalent or most similar rating under the rating system then in effect of the mostwidely
accepted rater of the financial stability of such insurance companiesat the time); provided
that Landlord and Tenant mayutilize insurers with lower Alfred M. Best Company,Inc.
ratings with the prior written consentof the other Party.
(b)
Eachand every policy required to be carried hereundershall provide
for blanket waivers of subrogation by endorsementor other meansif required by contract
whichwaivers of subrogationshall be effective as to any Party.
(c)
Eachand every insurance policy required to be carried hereunder
or on behalf of any Party shall provide(and any certificate evidencingthe existence of each
such insurance policy shall certify) that such insurance policy shall not be canceled, nonrenewedor coverage thereunder materially reduced unless the other Party (and the NFL
Club, if applicable) shall have received written notice of cancellation, non-renewalor
material reduction in coverage, in each such case (except for notice of cancellation due to
non-paymentof premiums)such written notice to be sent to the other Party (and the NFL
Club, if applicable) not less than ninety (90) days (or themaximum
period of days permitted
under applicable law, if less than ninety (90) days) prior to the effective date of such
cancellation, non-renewalor material reduction in coverage, as applicable. In the event any
insurance policy is to be canceled due to non-payment
of premiums,the requirementsof the
precedingsentenceshall apply except that the written notice shall be sent tO the other Party
(and the NFLClub, if applicable) on the earliest possible date but in no event less than ten
(10) daysprior to the effective date of such cancellation.
10.5.2 Delivery of Evidenceof Insurance. With respect to each and every one of
the insurance policies required to be obtained, kept or maintainedunder the terms of this Stadium
Lease, on or before the date on whicheach such policy is required to be first obtained and prior to
the expiration of any policy required hereunder previously obtained, Tenant and Landlord, as the
case maybe, shall deliver to the other Party (and the NFLClub, if applicable) evidenceshowingthat
suchinsuranceis in full force and effect. Suchevidenceshall include certificates of insuranceissued
by a ResponsibleOfficer of the issuer of such policies, or in the alternative, a ResponsibleOfficer
of an agent authorized to bind the namedissuer, setting forth the nameof the issuing company,the
coverage, limits, deductibles, endorsements,term and termination provisions thereon. Byno later
than (i) thirty (30) days after the effective date of any insurancepolicy required under this Stadium
Lease, Tenant and Landlord, as the case maybe, shall provide the other Party (and the NFLClub,
if applicable) with reasonable evidence that premiumshave either been paid or are payable in
installments and (ii) one hundredtwenty(120) days after the effective date of any insurancepolicy
required under this StadiumLease, Tenantand Landlord, as the case maybe, shall provide the other
Party (and the NFLClub, if applicable) with a copy of such insurance policy.
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10.5.3 Waiverof Right of Recovery. Notwithstandingthe provisions of Section
10.7 to the contrary, to the extent permitted by law and without affecting the insurance
coverage required to be maintainedhereunder, Landlordand Tenanteach waive all rights of
recovery, claim, action or cause of action against the other for any damageto Property
(including the LeasedPremises), to the extent that such damage(i) is covered(andonly to
exte/lt of such coveragewithout regardto deductibles) by insurance actually carried by the
Partyholdingor asserting such right of recovery, claim, action or cause of action or (ii) would
be insured against underthe terms ofanyinsurancerequired to be carried underthis Stadium
Leaseby the Partyholdingor asserting such right of recovery, claim, action or cause of action.
This provision is intendedto (i) restrict each Party(if andto the extent permittedby law)
recoveryagainst insurancecarriers to the extent of such coverageand to waive(to the extent
of such coverage), for the b enefit of each Party, rights and/orclaims whichmightgive rise to
a right of subrogationin any insurance carrier and (ii) give each Party the benefit of the
foregoing notwithstandingany failure by the other Party to maintainthe insurance required
underthis StadiumLease or the Project Agreement.Theprovisions of this Section 10.5.3 are
not intended to limit the claims of Landlordor Tenantto the face amountor coverage of the
insurancepolicies herein providedfor or to evidence the waiverby either Party of any claim
for damagesin excess of the face amountor coverageo~anyof such insurancepolicies. Neither
the issuance of any insurancepolicy required under, or the minimum
limits specified in, this
StadiumLease with respect to Tenant’s or Landlord’sinsurance coverage shall be deemedto
limit or restrict in any wayTenant’s or Landlord’sliability arising underor out of this
Stadium Lease.
Section 10.6 Proceeds of Insurance Without limiting Landlord’s obligations under
Article 13 with respect to Casualty Repair Work,any Insurance Proceedspaid under the Landlord’s
Property InsurancePolicy or the Landlord’sBuilder’s All Risk Policies shall be payable to Landlord
and deposited into the Insurance Fundto be held and distributed pursuant to Article 13. Likewise,
any Insurance Proceeds paid under the Tenant’s Builder’s All Risk Policies shall be payable to
Tenant and deposited into the Insurance Fund. Landlord shall (i) establish and maintain the
Insurance Accountfor the sole purposes of holding, applying, investing and transferring the
Insurance Fundand (ii) hold and disburse the InsuranceProceedsdeposited into the InsuranceFund
under this StadiumLease, all in accordancewith this Article 10 and Article 13. All funds in the
Insurance Fundshall be held in escrowby Landlordfor application in accordancewith the terms of
this StadiumLease and the StadiumTri-Party Agreementand Landlordshall account to Tenant for
the sameon a monthlybasis. Thefunds in the Insurance Fundshall be invested in the mannerset
forth in the StadiumTri-Party Agreement.Neither Landlordnor Tenant shall create, incur, assume
or permit to exist any Lien on the Insurance Fundor any proceedsthereof.
Section 10.7 Indemnification.
10.7.1 Tenant’s Agreement to Indemnify. TENANTSHALL, EXCEPTAS
PROVIDED IN SECTION 10.7.2
OR OTHERWISE EXPRESSLY PROVIDED IN THE
PRINCIPAL PROJECT DOCUMENTS, DEFEND, PROTECT, INDEMNIFY AND HOLD
LANDLORD, THE SPORTS AUTHORITY, THE COUNTY, AND THEIR RESPECTIVE
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AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, HARMLESSFROM
AND AGAINST ANY AND ALL LIABILITIES,
DAMAGES, SUITS, CLAIMS AND
JUDGMENTS OF ANY NATURE (INCLUDING REASONABLEATTORNEYS’ FEES AND
EXPENSES), ARISING FROMOR IN CONNECTIONWITH ANYINJURY TO OR DEATHOF
A THIRD PERSON OR ANY DAMAGETO PROPERTYOF A THIRD PERSON (INCLUDING
LOSS OF USE) RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH
(i) TENANT’S USE OR OCCUPANCYOF THE PORTION OF THE LEASED PREMISES
COMPRISING (X)THE PERFORMANCE AREA, THE SUITES, THE CLUB LEVEL
(INCLUDING THE NORTHAND SOUTHPORTIONSOF SUCH LEVEL OF THE STADIUM),
THE RODEO CLUBS AND THE COMPLEX GROUNDS (OTHER THAN THE PORTION
WHERELANDLORDDERIVES PARKING ORANYOTHER REVENUES) DURING TENANT
EVENTDAYS AND(Y) THE PORTION OF THE STADIUMBEING USED IN CONNECTION
WITH A TENANTNON-EVENT DURING THE HOLDING OF A TENANT NON-EVENTOR
(ii)
THE NEGLIGENCEOR WILLFUL MISCONDUCTOF (A) TENANT, (B) TENANT’S
CONTRACTORS,EMPLOYEES,OFFICERS, DIRECTORS, AGENTS, INVITEES OR SPACE
TENANTS(BUT ONLYIF SUCH SPACE TENANTIS LICENSED DIRECTLYANDSOLELY
BY TENANT) OR (C) ANYINDIVIDUAL APPOINTEDBY TENANTTO SUBSTITUTE
AND REPLACE MEMBERS OF LANDLORD’S EVENT STAFFING AND ADDITIONAL
STAFFING PURSUANTTO SECTION 6.1.2.7
WHILEACTING IN SUCHCAPACITY.
10.7.2 Tenant’s Exclusions. Notwithstanding the provisions of Section 10.7.1,
Tenant shall not be liable for any liabilities, damages,suits, claims and judgmentsof any nature
(including reasonable attorneys’ fees and expenses)arising from or in connectionwith:
(a)
Anyinjury to or death of a Personor any damageto property (including loss
of use) to the extent of the negligence or willful misconduct of Landlord, the Sports
Authority, the County,any CountyAffiliate, any of Landlord’sother tenants, including the
NFLClub, or their respective employees,officers, directors, contractors, agents, invitees or
SpaceTenants(other than SpaceTenantsthat are licensed directly and solely by Tenant),
the negligence or willful misconduct of any Person other than those referenced in
clause (ii) of Section10.7.1;
(b)
Landlord’sviolation of any provisions of this StadiumLeaseor any applicable
Governmental
Rules or deed restriction or insurance policy, nowor hereafter in effect and
applicable to Landlord;
(c)
Theexistence of any HazardousMaterials in, on or under the LeasedPremises
prior to the Commencement
Date, but the foregoing shall not apply to any Hazardous
Materials that are introduced to the LeasedPremises by Tenant, or any of its employees,
officers, directors, contractors, agents, invitees or SpaceTenants(but only if such Space
Tenantis licensed directly and solely by Tenant); or
(d) AnyEnvironmental Event caused by Landlord, the Sports Authority, the
County,any of Landlord’sother tenants, including the NFLClub, or any of their respective
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employees,officers, directors, contractors, agents, invitees or SpaceTenants(other than
SpaceTenantsthat are licensed directly and solely by Tenant), or by any other Personother
than those referencedin clause (ii) of Section 10.7.1.
10.7.3 Landlord’s Agreement to Indemnify. LANDLORD
SHALL,EXCEPTAS
PROVIDED IN SECTION 10.7.4
OR OTHERWISE IN THE PRINCIPAL PROJECT
DOCUMENTS, DEFEND, PROTECT, INDEMNIFY AND HOLD TENANT AND ITS
AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEESAND AGENTS HARMLESSFROM
AND AGAINST ANY AND ALL (A) LIABILITIES,
DAMAGES, SUITS, CLAIMS AND
JUDGMENTS OF ANY NATURE (INCLUDING REASONABLEATTORNEYS’ FEES AND
EXPENSES), ARISING FROMOR IN CONNECTIONWITH ANYINJURY TO OR DEATHOF
A THIRD PERSON ORANYDAMAGETO PROPERTY OF A THIRD PERSON (INCLUDING
LOSS OF USE) RESULTINGFROM, ARISING OUT OF OR IN CONNECTION
WITH (i)
LEASE, OPERATION, USE, OCCUPANCY,MAINTENANCE
OR REPAIR OF THE LEASED
PREMISES BY LANDLORD, THE COUNTY, ANY OF LANDLORD’SOTHER TENANTS,
INCLUDING THE NFL CLUB, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS,
DIRECTORS, CONTRACTORS,AGENTS, INVITEES OR SPACE TENANTS(OTHER THAN
SPACE TENANTS THAT ARE LICENSED DIRECTLY AND SOLELY BY TENANT), OR
(ii)
THE NEGLIGENCEOR WILLFUL MISCONDUCTOF LANDLORD,THE COUNTY,
THEIR RESPECTIVE LICENSEES, TENANTS(OTHER THAN TENANT), CONTRACTORS,
EMPLOYEES,OFFICERS, DIRECTORS, AGENTS, INVITEES OR SPACE TENANTS(OTHER
THAN SPACE TENANTSTHAT ARE LICENSED DIRECTLY AND SOLELY BY TENANT)
OR (B) LIABILITIES OF ANY NATURERESULTINGFROM, ARISING OUT OF OR
CONNECTIONWITH ANY FINANCIAL RESPONSIBILITY OF TENANT CONTRARYTO
THE PROVISIONSOF SECTION9.1.1.
10.7.4 Landlord’sExclusions. Notwithstanding theprovisions of Section 10.7.3,
Landlordshall not be liable for any liabilities, damages,suits, claims and judgmentsof any nature
(including reasonable attorneys’ fees and expenses) arising from or in connectionwith:
(a)
Anyinjury to or death of a Person or any damageto property (including loss
of use) to the extent of the negligenceor willful misconductof Tenant, or its Affiliates,
employees,officers, directors, contractors, agents, invitees or SpaceTenants(but only if such
SpaceTenantis licensed directly and solely by Tenant);
(b) Tenant’s violation of any provisions of this StadiumLease or any applicable
GovernmentalRules or deed restriction or insurance policy, nowor hereafter in effect and
applicable to Tenant;
(c)
AnyHazardous Materials that are introduced to the Leased Premises
Tenant, or any of its employees,officers, directors, contractors, agents, invitees or Space
Tenants(but only if such SpaceTenant is licensed directly and solely by Tenant);
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(d) AnyEnvironmentalEvent caused by Tenant, or any of its employees,officers,
directors, contractors, agents, invitees or SpaceTenants(but only if such SpaceTenantis
licensed
directly and solely by Tenan
0.
10.7.5 NoThirdParty Beneficiary. The provisions of this Section 10.7 are solely
for the benefit of Landlordand Tenantand are not intendedto create or grant any rights, contractual
or otherwise, to any other Person.
10.7.6 Conductof Claims. The Party entitledto indemnification under this Section
10.7 (the "IndemnifiedParty") shall reasonablypromptlyafter the receipt of notice of any legal
action or claim against such IndemnifiedParty in respect of whichindemnification maybe sought
pursuant to this Section 10.7, notify the other Party (the "IndemnifyingParty") of such action or
claim. The Indemnifying Party shall not be obligated to indemnify the Indemnified Party with
respect to any such action or claim if the Indemnified Party knowingly fails to notify the
IndemnifyingParty thereof in accordancewiththeprovisionsofthis Section 10.7.6in sufficient time
to permit the Indemnifying Party to defend against such matter and to makea timely response
thereto, including any responsive motionor answerto a complaint, petition, notice or other legal,
equitable or administrativeprocessrelating to the action or claim, but only in so far as such knowing
failure to notify the Indemnifying Party has actually resulted in prejudice or damageto the
Indemnifying Party. In case any such action or claim shall be madeor brought against the
IndemnifiedParty, the IndemnifyingParty may,or if so requested by the IndemnifiedParty shall,
assumethe defense thereof with counsel of its selection reasonably acceptable to the Indemnified
Party and which shall be reasonably competentand experienced to defend the Indemnified Party.
In such circumstances,the IndemnifiedParty shall (i) at no cost or expenseto the IndemnifiedParty,
cooperate with the IndemnifyingParty and provide the IndemnifyingParty with such information
and assistance as the IndemnifyingParty shall reasonablyrequest in connectionwith such action or
claimand (ii) at its ownexpense,havethe right to participate and be represented by counselof its
ownchoice in any such action or with respect to any such claim. If the IndemnifyingParty assumes
the defense of the relevant claim or action, (a) the IndemnifyingParty shall not be liable for any
settlement thereof whichis madewithout its consent and (b) the IndemnifyingParty shall control
the settlement of such claim or action; provided, however,that the IndemnifyingParty shall not
Conclude any settlement which requires any action or forbearance from action or paymentor
admission by the Indemnified Party or any of its Affiliates without the prior approval of the
IndemnifiedParty. Theobligations of an IndemnifyingParty shall not extend to any loss, damage
and expenseof whateverkind and nature (including all related costs and expenses)to the extent the
sameresults from the taking by the Indemnified Party of any action (unless required by law or
applicable legal process) after the assertion of any claim which gave rise to the obligation to
indemnifywhichprejudices the successful defense of the action or claim, without, in any such case,
the prior written consentof the IndemnifyingParty (such consent not to be required in a case where
the IndemnifyingParty has not assumedthe defense of the action or claim). The IndemnifiedParty
agrees to afford the IndemnifyingParty and its counsel the opportunity to be present at, and to
participate in, conferenceswith all Persons, including Governmental
Authorities, asserting any claim
or action against the IndemnifiedParty covered by the indemnitycontained in this Section 10.7 or
conferenceswith representatives of or counsel for such Person.
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10.7.7 Survival. The indemnities contained in this Section 10.7 shall survive the
expiration or earlier termination of this StadiumLease, but only insofar as such indemnitiesrelate
to any liabilities, damages,suits, claims or judgmentsthat arose prior to the expiration or earlier
termination of this StadiumLease.
ARTICLE 11
OWNERSHIPOF LEASED PREMISES~ ACCESS
Section 11.1 Title to the Leased Premises.
11.1.1 Ownership.Fee title to the Leased Premises shall be and remain in the
County, subject to the Permitted Encumbrances,but the County’srights and powerswith respect
thereto are subject to the terms and limitations of this Stadium Lease and the Recognition,
Non-Disturbanceand AttommentAgreements.Leasehold title to the Leased Premises shall be and
remain in Landlord pursuant to the Prime Lease, but Landlord’s rights and powerswith respect
thereto are subject to the terms and limitations of this StadiumLease. All Tenant’sFF&E
and other
personal Propertyinstalled on, affixed to or placed or used in the operation of the LeasedPremises,
by or on behalf of Tenant throughoutthe Lease Termshall be and remain the property of Tenantat
all times and shall not be considered part of the Leased Premises, except for Landlord’s FF&E
installed, affixed, attached or supplied by Landlord pursuant to the Project Agreementor any
Landlord’s FF&E
paid for out of the Capital Repair ReserveFundor the Insurance Fund, and all
repairs to, replacementsof, and substitutions therefor.
11.1.2 Sale or Disposal of Equipment
or OtherPersonalProperty. Provided that
no LandlordDefault then exists, Landlordshall havethe right at any time and fromtime to time, to
sell or dispose of any Physically Obsoleteor FunctionallyObsoleteequipment,fixtures, machinery,
furniture, furnishings and other personal property that constitutes a part of the LeasedPremises
(collectively, "Personalty") and deposit the proceeds thereof into the Capital Repair Reserve
Account; provided, however, that if such Personalty is necessary for operation of the Leased
Premisesin accordancewith the requirementsof Section 6.1, Landlordshall then or prior thereto or
as reasonablynecessarythereafter substitute for the sameother Personalty, not necessarily of the
samecharacter but capable of performingthe samefunction as that performedby the Personalty so
disposedof, and of goodquality and suitable for its intended purposeand title to such substitute
Personalty shall vest in Landlordsubject only to this StadiumLease and any encumbrances
arising
by, through or under Landlord; provided that Landlord will not replace Functionally Obsolete
Personalty with Physically Obsolete Personalty.
Section 11.2 Access to the Leased Premises by Landlord.
11.2.1 LeasedPremises.Landlordshall be entitled to uninterrupted access to the
LeasedPremises(excludingTenant’s Facilities) at all times during the LeaseTermexcept on Tenant
Event Days and days on which Tenant Non-Eventsoccur. OnTenant Event Daysand days on which
Tenant Non-Eventsoccur, Landlord’s reasonably necessary authorized representatives mayhave
access to the Leased Premises provided such authorized representatives have proper credentials
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issued by Landlordand further providedthat such access is for the purposeof(a) inspection, (b)
performance of (i) any Maintenanceand repair to be performed by Landlord, (ii) any Landlord
RemedialWorkor Tenant RemedialWorkor (iii) other workin the Leas ed Premisesmadenecess ary
by reason of Tenant’s Default, (c) Landlord’soperation of the LeasedPremisesunder Section 6.1 and
Section 18.2, as applicable or (d) reasonableexhibition of the LeasedPremisesto others during the
last twelve (12) monthsof the Lease Term;provided, however,if reasonablypossible the foregoing
items (a), (b) and (d) shall be performedby Landlordon days other than TenantEventDaysand
on whichTenantNon-Eventsoccur; andfurtherprovidedthat if the foregoing items (a), (b) and
must be performedon a Tenant Event Dayor a day on whicha Tenant Non-Eventoccurs, such entry
shall be conductedin such a manneras to minimizeinterference with the Tenant Event or Tenant
Non-Eventtaking place on such Tenant Event Dayor a day on which a Tenant Non-Eventoccurs,
or the enjoymentthereof by Tenant’s guests.
11.2.2 Tenant’s Facilities. During the Lease Term, Landlord and its reasonably
necessaryauthorizedrepresentatives, bearing proper credentials issued by Landlord,shall only have
access to Tenant’s Facilities providedLandlorduses reasonable efforts given the totality of the
circumstancesto deliver to Tenant notice twenty-four (24) hours in advanceof such contemplated
access and providedsuch access is for the purposeof(a) inspection, (b) the performanceof(i)
Maintenanceand repair to be performedby Landlord, (ii) any Landlord RemedialWorkor Tenant
RemedialWorkor (iii) other workin Tenant’s Facilities madenecessary by reason of Tenant’s
Default, (c) Landlord’s operation of Tenant’s Facilities under Section 6.1 and Section 18.2, as
applicable, or (d) reasonableexhibitionof the Tenant’sFacilities to others duringthe last twelve(12)
monthsof the LeaseTerm;provided, however,if reasonablypossible the foregoingitems (a), (b)
(d) shall be performedby Landlordon days other than Tenant Event Days; andfurtherprovidedthat
if the foregoingitems (a), (b) and (d) mustbe performedon a TenantEventDaysuch entry shall
conducted in such a manneras to minimizeinterference with the activities being conducted in
Tenant’s Facilities. DuringnormalBusinessHoursand uponwritten notice to Landlord,Tenantshall
have the right to review any records maintainedby Landlord, or otherwise available to Landlord,
regarding access by any Persons to and from Tenant’s Facilities.
11.2.3 EmergencySituations. NotwithstandingSection 11.2.1 and Section 11.2.2,
Landlordand its reasonably necessary authorized representatives, bearing proper credential issued
by Landlord,will haveaccess to the LeasedPremisesand Tenant’sFacilities in any circumstancein
whichLandlordin goodfaith believes that an Emergency
exists. In such circumstances, Landlord’s
activities on the LeasedPremisesor Tenant’sFacilities shall be limited to taking reasonableaction
in order to safeguard lives, property or the environment(including any repair or Maintenance
necessary under such Emergencycircumstances).
ARTICLE 12
ENFORCEABLE CONTRACTS
Landlordand Tenant’s rights and obligations with regard to EnforceableContracts are set
forth in the StadiumTri-Party Agreement.
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ARTICLE 13
CASUALTY DAMAGE
Section 13.1 Damageor Destruction. If, at any time during the Lease Term, there is any
Casualtyto the LeasedPremisesor any part thereof, then Landlordshall (i) use all reasonableefforts
to promptly secure the area of damageor destruction to safeguard against injury to Persons or
Property and remediate any hazard, and promptly thereafter, notify Tenant in writing of the
estimated time to remedysuch Casualty and restore the LeasedPremisesto a safe condition whether
by repair or by demolition, removalof debris and screening from public view, and (ii) Landlord
shall, to the extent allowed by law, promptly commence
and thereafter proceed with reasonable
diligence (subject to a reasonabletime allowancefor the purposeof adjusting the insurance loss and
subject to ExcusableLandlordDelay)to repair, restore, replace or rebuild the LeasedPremisesas
nearly as practicable to a condition whichis at least substantially equivalent to that existing
immediatelyprior to such damageor destruction, subject to the terms of Section 13.3 below. Such
repair, restoration, replacementor rebuilding, includingtemporaryrepairs for the protectionof other
Property pendingthe completionof any such work, remediation of hazards and restoration of the
LeasedPremises to a safe condition or any demolition and debris removalrequired are sometimes
referred to in this Stadium Lease as the "Casualty Rep.air Work."To the extent any Casualty
Repair Workis not performed by Landlord’s employees, such Casualty Repair Workmust be
performedon an arms length, bona fide basis by Persons whoare not Affiliates of Landlordand on
commercially reasonable terms given the totality of the then existing circumstances. If an
UntenantableConditionexists as a result of a Casualty, in addition to any other remediesavailable
to Tenant on account thereof under this StadiumLease, the GuaranteedPaymentshall be reduced
during the existence of such UntenantableCondition in accordanceSection 18.7.
Section 13.2 Insurance Proceeds.
13.2.1 Requirementsfor Disbursement.Insurance proceeds paid pursuant to the
policies of insurance for loss of or damageto the LeasedPremises(herein sometimesreferred to as
the "InsuranceProceeds")shall be paid and delivered to the Persons specified in Section 10.6.
Exceptas providedin Section 13.2.2, the InsuranceFundshall be applied to the paymentof the costs
of the Casualty Repair Workand shall be paid out to or for the account of Landlordfrom time to
time as such Casualty Repair Workprogresses. Insurance Proceeds paid or disbursed to Landlord,
whetherfrom the Insurance Fund,the issuers of any insurance policies or otherwise, shall be held
by Landlordin trust for the purposes of paying the cost of the Casualty Repair Workand shall be
applied by Landlordto such Casualty Repair Workor otherwisein accordancewith the terms of this
Section 13.2. Landlord shall from time to time as requested by Tenant provide an accounting to
Tenantof the Insurance Proceedsin detail and format reasonably satisfactory to Tenant.
13.2.2 Disbursements of Excess Proceeds. If the Insurance Proceeds (and other
funds, if any) received by Landlord shall exceed the entire cost of the Casualty Repair Work,
Landlord shall deposit the amountof any such excess proceeds into the Capital Repair Reserve
Accountand thereupon such proceeds shall constitute part of the Capital Repair Reserve Fund.
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13.2.3 UninsuredLosses/PolicyDeductibles. As CasualtyRepairWorkprogresses
during the Lease Term,Landlordshall be obligated to pay for all costs and expenses of any such
Casualty Repair Workthat are not covered by Insurance Proceeds or for which Insurance Proceeds
are inadequate (such amountsbeing included within the term "Casualty Expenses").
13.2.4 Application of Insurance Proceeds.
13.2.4.1 StadiumLease Terminated.In the event this StadiumLease shall
be terminated pursuant to the provisions of Section 13.3.1, Insurance Proceeds, if any, payable in
respect of such damageor destruction shall be payable to, and held and distributed by, Landlord.
Landlordshall distribute such InsuranceProceedsas follows and in the followingorder of priority
(i) first, to Landlordfor the paymentof all reasonable costs of CasualtyRepairWorkto rebuild
(a) Landlordhas an obligation to the NFLClubunder the NFLClub Lease to rebuild or (b) Landlord
has elected to rebuild, except that in either circumstance, any Insurance Proceeds of business
interruption insurance in an amountequal to GuaranteedPaymentsthat wouldhave otherwise been
payable hereunder notwithstandingsuch termination shall be segregated and applied towardpayment
of such GuaranteedPayments,(ii) second, if Landlordhas elected not to rebuild or is not obligated
to rebuild, to Landlordfor paymentof all reasonable costs necessary to demolishany of the Leased
Premises and to remediate any hazards caused by such Casualty, (iii) third, to pay the amount
outstanding principal and accrued interest under any PuNicDebt and any reimbursementobligation
by the Sports Authority to the BondInsurer related to any Public Debt that remains unsatisfied,
(iv) fourth, to pay the amountof outstandingprincipal and accruedinterest to any Facility Mortgagee
under a Facility Mortgage,(v) fifth, only if Landlordhas elected not to rebuild, to Tenant the
product of the Tenant’s Casualty ProceedsRatio multiplied by the remainingInsurance Proceedsand
(vi) sixth, to Landlord,the remainder.
13.2.4.2 StadiumLeaseNotTerminated.Notwithstanding anything in this
StadiumLease, including the foregoingSection 13.2.4.1, to the contrary, in the event this Stadium
Lease is not terminated pursuant to the provisions of Section 13.3.1, Insurance Proceeds, if any,
payable in respect of such damageor destruction shall be payable to, and held and distributed by,
Landlord. Landlordshall distribute such Insurance Proceedsas follows and in the following order
of priority (i) first, if Tenanthas elected pursuantto a right granted herein to offset or otherwise
reduce the amountof any GuaranteedPayment,Landlord shall use such Insurance Proceeds to pay
the portion of any GuaranteedPaymentwhich Tenant has so elected not to pay pursuant to such
offset or other reduction, (ii) second,to rebuild, if Landlordhas an obligation to rebuild, and (iii)
third, to Landlordthe remainder.
Section 13.3 Option to Terminate.
13.3.1 Damageor Destruction of Substantially All of the Improvements.In the
event that Substantially All of the Improvements
are damagedor destroyedby a Casualtythat is not
the result of the willful misconductof Tenantor any of its agents, employees,SpaceTenants (but
only those SpaceTenantslicensed directly and solely by Tenant) or contractors, Tenantmay,at its
option (exercised with reasonable promptnessin the circumstances, but in all events within ninety
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(90) days after the date Tenantreceives the written notification of the estimatedtime to remedysuch
Casualty), terminate this StadiumLease and all other Principal Project Documents
(other than the
Existing RodeoLeaseunless permitted pursuant thereto) by (y) serving uponLandlordnotice within
such period setting forth Tenant’selection to terminate this StadiumLease and all other Principal
Project Documents(other than the Existing RodeoLease unless permitted pursuant thereto) as
result of such Casualty as of the end of the calendar monthin whichsuch notice is delivered to
Landlordand (z) payingto Landlord, concurrentlywith the service of such notice, all the Payments
which wouldotherwise have been payable up to the effective date of such termination. Uponthe
service of such notice and the makingof such Paymentswithin the foregoing time period, this
StadiumLease and all other Principal Project Documents(other than the Existing RodeoLease
unless permitted pursuant thereto) shall cease and terminate with respect to Tenant on the date
specified in such notice with the sameforce and effect as if such date werethe date originally fixed
as the Lease Expiration Date. Failure to terminate this StadiumLease within the foregoing time
period shall constitute an election by Tenantto keepthis StadiumLeasein force. If Tenantelects
to so keep this StadiumLease in full force and effect, Landlordshall commence
to performthe
Casualty Repair Workand prosecute such Casualty Repair Workto completionas provided in this
Article 13, unless the Casualty occurs at any time during the last four (4) years of the LeaseTerm
in which event Landlord mayelect to terminate this StadiumLease by written notice to Tenant
within one hundredtwenty (120) days after such Casualty, with such termination to be deemed
termination by Tenantunder the terms of this Section 13.3.1.
13.3.2 Distribution of Capital Repair Reserve Account.
13.3.2.1 Dis tribution. In the event this StadiumLeaseis terminatedpursuant
to the provisionsof Section13.3.1 and Landlorddoes not rebuild, Tenantshall be entitled to receive
one-third (1/3) of any amountsremainingin the Capital Repair ReserveAccountas of the date
the Casualty;provided,however,that if Landlordhas an obligation to NFLClub under the NFLClub
Lease to performany Casualty Repair Work,Tenant shall be entitled to receive one-third (1/3)
any amountsremainingin the Capital Repair Reserve Accountat such time as the NFLClub Lease
shall terminate or expire, whether by its ownterms or otherwise, but in no event greater than
one-third (1/3) of the amountin the Capital Repair ReserveAccountat the time of the Casualty.
13.3.2.2 Limitationon Distribution. Notwithstandinganything in Section
13.3.2.1 to the contrary, during the BondInsurance Period and at such time as Tenantor the NFL
Clubare entitled to receive their share of the Capital RepairReserveAccountas providedin Section
13.3.2.1, the Capital Repair ReserveAccountshall first be used to pay the outstandingPublic Debt
of the Sports Authorityor any reimbursementobligation by the Sports Authorityto the BondInsurer
related to the Public Debt that remains unsatisfied, and then the balance of the Capital Repair
Reserve Accountshall be allocated to Tenant and the NFLClub as provided in Section 13.3.2.1.
13.3.3 Definition of Substantially All of the Improvements.
For the purposes of
this Section 13.3, "Substantially All of the Improvements"
shall be deemedto be damagedor
destroyedif such Casualty causes an UntenantableConditionto exist, or be reasonably expectedto
exist, for morethan two (2) years from the date of the Casualty. Thedeterminationof whetherthe
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LeasedPremises can be rebuilt, repaired and/or reconfigured in order to remedysuch Untenantable
Conditionwithin such two (2) year period shall be madewithin sixty (60) days of the date of
Casualty by an independentarchitect mutually selected by Landlord, Tenant and the NFLClub and,
if during the BondInsurancePeriod, after consultation with the BondInsurer at least ten (10) days
prior to selection.
13.3.4 Landlord’sIntent to Rebuild. For the purpose of Section 13.2.4, Landlord
shall be deemedto haveelected not to rebuild if Landlordhas not (i) given the notice required
Section 13.1 (i), (ii) within nine (9) monthsafter the date of the Casualty, passed a resolution
indicating its intent to rebuild and commenced
discussions with a construction contractor to perform
the rebuilding, (iii) within eighteen(18) monthsafter the date of the Casualty,signed a contract
a construction contractor to performthe Casualty Repair Work,(iv) commenced
the Casualty Repair
Workwithin one hundredtwenty (120) days after the date of the signing of the contract with the
construction contractor and (v) following such commencement,
diligently continued to performand
cause the performanceto completion of the Casualty Repair Work.
Section 13.4 Survival. Theprovisions contained in this Article 13 shall survive expiration
or earlier termination of this StadiumLease, but only insofar as such provisions relate to any
Casualty that occurredprior to the expiration or earlier termination of this StadiumLease.
ARTICLE 14
CONDEMNATION
Section 14.1 Temporary
Taking. If at any time during the Lease Term,title or possession
to the whole or any part of the Leased Premises or the Leasehold Estate shall be taken in a
CondemnationAction for a temporary use or occupancy that does not encompasstwo (2) full
BookedSpring Rodeos,the Lease Termshall not be reduced, extended or affected in any way, but
if an UntenantableConditionexists as a result of such temporarytaking, in addition to any other
remedies available to Tenant on account thereof under this StadiumLease, the GuaranteedPayment
shall be reduced during the existence of such UntenantableCondition in accordancewith Section
18.7, less the amountof the Condemnation
Awardreceived by Tenant pursuant tO this Article 14.
Section 14.2 Condemnationof Substantially All of the Improvements.
14.2.1 TerminationRights. If at any time during the LeaseTerm,title or possession
to the whole of the Leased Premises, the entire Leasehold Estate or Substantially All of the
Improvements shall be taken in any CondemnationAction (or conveyed in lieu of any such
CondemnationAction), other than for a temporary use or occupancythat does not encompasstwo
(2) full BookedSpring Rodeos,then Tenantmay,at its option (exercised with reasonable promptness
in the circumstances, but in all events within ninety (90) days after Tenant receives written
notification of the estimatedtime required to remedythe taking of the wholeof the LeasedPremises,
the entire LeaseholdEstate or Substantially All of the Improvements),terminate this StadiumLease
and all other Principal Project Documents(other than the Existing RodeoLease unless permitted
pursuant thereto) by (i) serving upon Landlordnotice within such period setting forth Tenant’s
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election to terminate this StadiumLeaseand all other Principal Project Documents
(other than the
Existing RodeoLease unless permitted pursuant thereto) as a result of such taking (or conveyance)
as of the end of the calendar monthin whichsuch notice is delivered to Landlordand (ii) paying
Landlord,concurrentlywith the service of such notice, all the Paymentswhichwouldotherwisehave
beenpayable up to the effective date of such termination. Uponthe service of such notice and the
makingof such Paymentswithin the foregoing time period, this Stadium Lease and all other
Principal Project Documents
(other than the Existing RodeoLeaseunless permitted pursuant thereto)
shall cease and terminate with respect to Tenanton the date specified in such notice with the same
force and effect as if such date werethe date originally fixed as the LeaseExpirationDate. Failure
to terminate this StadiumLease within the foregoing time period shall constitute an election by
Tenantto keepthis StadiumLease in force. If Tenant elects to so keep this StadiumLeasein full
force and effect, Landlordshall commence
to performthe Condemnation
Repair Workand prosecute
such CondemnationRepair Workto completion as provided in this Article 14, unless the
Condemnation
Action (or conveyancein lieu of any such CondemnationAction) occurs at any time
during the last four (4) years of the LeaseTermin whichevent Landlordmayelect to terminate this
StadiumLease by written notice to Tenant within one hundredtwenty (120) days after such taking
(or conveyance),with such termination to be deemeda termination by Tenantunder the terms of this
Section 14.2.1.
14.2.2 Definition of Substantially All of the Improvements.
For purposes of this
Article 14, "Substantially All of the Improvements"shall be deemedto have been taken if, by
reason of the taking of title to or possession of the LeasedPremises or any portion thereof by
Condemnation
Actions, an UntenantableConditionexists, or is reasonably expectedto exist, for a
period of time encompassingtwo (2) full BookedSpring Rodeosor morebeginning from the date
of such taking (or conveyance),including any temporarytaking of such length. Thedetermination
of whetherthe LeasedPremisescan be rebuilt, repaired and/or reconfigured in order to remedysuch
UntenantableCondition within such time shall be madewithin sixty (60) days of the date of the
taking (or conveyance)by an independentarchitect mutuallyselected by Landlord, Tenant and the
NFLClub and, if during the BondInsurancePeriod, after consultation with the BondInsurer at least
ten (10) days prior to selection.
Section 14.3 Condemnation
Repair Work.In the event of (i) Condemnation Action
affecting less than the wholeof the LeasedPremises, less than the entire LeaseholdEstate or less
than Substantially All of the Improvements
or (ii) a Condemnation
Actionaffecting the wholeof the
LeasedPremises, the entire LeaseholdEstate or Substantially All of the Improvementsand Tenant
or Landlorddo not exercise their respective options to terminate this StadiumLease pursuant to
Section 14.2.1 of this StadiumLease, then the Lease Termshall not be reducedor affected in any
way, and Landlord shall, with reasonable diligence (subject to Excusable Landlord Delay),
commence
and thereafter proceed to repair, alter and restore the remaining part of the Leased
Premisesto substantially their former condition to the extent that the samemaybe feasible and
necessary so as to constitute a completemultipurpose complexusable for its intended purposes,
including professional rodeo competitions, livestock shows and major music concerts, and as
otherwise contemplatedunder this StadiumLease and the NFLClub Lease, to the extent practicable
and permitted by applicable Governmental
Rules. Suchrepairs, alterations or restoration, including
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temporary repairs for the protection of Persons or Property pending the completion of any part
thereof, are sometimes referred to in this Article 14 as the "Condemnation
Repair Work."
Landlord shall be obligated to pay for the entire cost of all CondemnationRepair Work
("CondemnationExpenses") irrespective of the amount of Landlord’s CondemnationAward.
Amountspaid to Landlordas Landlord’sCondemnation
Awardshall be held in trust for the purpose
of paying CondemnationExpenses and shall be applied by Landlord to any such Condemnation
Expenses or otherwise in accordance with the terms of this Section 14.3. To the extent any
CondemnationRepair Workis not performed by Landlord’s employees, such CondemnationRepair
Workmust be performedon an arms length, bona fide basis by persons whoare not Affiliates of
Landlordand on commerciallyreasonableterms given the totality of the then existing circumstances.
All CondemnationExpenses in excess of Landlord’s Condemnation Awardshall be paid by
Landlord,except as providedin this Article 14.
Section 14.4 Application of CondemnationAwards;Distribution of Capital Repair
Reserve Account.
14.4.1 Obligationto Rebuild.In the event that (i) Tenanthas not terminated this
StadiumLease pursuant to Section 14.2.1 of this StadiumLease or (ii) Landlordhas an obligation
to the NFLClub under the NFLClub Lease to perform any CondemnationRepair Work, then
Landlord’s CondemnationAwardand any CondemnationAwardpaid to Tenant for the Leasehold
Estate (not including any portion of such CondemnationAwardfor Tenant’s movingexpenses or
Tenant’sseparate Property)shall be distributed in the followingorder of priority: (a) to Landlord
the payment of all reasonable CondemnationRepair Workand (b) any amounts left over after
applying such Condemnation
Awardsin accordancewith the foregoing clause (a) shall be returned
to the Party originally entitled to receive such Condemnation
Award;provided,however,during the
BondInsurance Period, if as a result of such Condemnation
Tenant has elected pursuant to a right
granted herein to offset or otherwise reduce the amount of any Guaranteed Payment, such
CondemnationAwardsshall be used first to pay the portion of any Guaranteed Paymentwhich
Tenanthas so elected not to pay pursuant to such offset or other reduction and then any balance of
such Condemnation
Awardshall be used in the order of priority established under clauses (a) and
(b) above.
14.4.2 NoObligation to Rebuild. In the event that Tenant has terminated this
StadiumLease pursuant to Section 14.2.1 of this Stadium Lease and Landlord does not have an
obligation to the NFLClub under the NFLClub Lease to perform any CondemnationRepair Work,
then Landlord’s CondemnationAwardshall be applied (i) as necessary, to pay the amount
outstanding principal and accrued interest under any PuNicDebt and any reimbursementobligation
by the Sports Authorityto the BondInsurer related to any Public Debt that remainsunsatisfied, and
(ii) any excess shall be retained by Landlord,and Tenantshall be entitled to its full Condemnation
Award.
14.4.3 Distribution of CapitalRepairReserveAccount.In the event this Stadium
Lease is terminated pursuant to Section 14.2.1 of this StadiumLease and Landlord does not have
an obligation to the NFLClub under the NFLClub Lease to perform any CondemnationRepair
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Work,Tenantshall be entitled to receive one-third (1/3) of any amountsremainingin the Capital
Repair ReserveAccountas of the date of the date of the taking (or conveyance);provided, however,
that if Landlorddoes have an obligation to the NFLClub under the NFLClub Lease to performany
CondemnationRepair Work,Tenant shall be entitled to receive one-third (1/3) of any amounts
remainingin the Capital Repair ReserveAccountat such time as the NFLClub Leaseshall terminate
or expire, whetherby its ownterms or otherwise, but in no event greater than one-third (1/3) of the
amountin the Capital Repair ReserveAccountat the time of the taking (or conveyance).
14.4.4 Limitation on Distribution of Capital Repair Reserve Account.
Notwithstandinganything in Section 14.4.3 to the contrary, during the BondInsurance Period and
at such time as Tenant or the NFLClub are entitled to receive their share of the Capital Repair
ReserveAccountas providedin Section 14.4.3, the Capital Repair ReserveAccountshall first be
used to pay the outstanding Public Debt of the Sports Authority and any reimbursementobligation
by the Sports Authorityto the BondInsurer related to any Public Debtthat remainsunsatisfied, and
then the balance of the Capital Repair ReserveAccountshall be allocated to Tenant and the NFL
Club as providedin Section 14.4.3.
Section 14.5 CondemnationProceedings. Notwithstanding any termination of this
StadiumLease, (i) Tenant and Landlordeach shall havethe right, at its ownexpense,to appear
any Condemnation
Actionand to participate in any and all hearings, trials and appeals therein and
(ii) subject to the other provisions of this Article 14, Tenant shall have the right in any
Condemnation
Action to assert a claim for, and receive all Condemnation
Awardsfor, the loss in
value of the LeaseholdEstate, or any of Tenant’sseparate Property taken or damaged
as a result of
such Condemnation
Action, and any damageto, or relocation costs of, Tenant’s business as a result
of such CondemnationAction. In the event of the commencement
of any CondemnationAction,
(i) Landlordshall undertakeall commerciallyreasonable efforts to defendagainst, and maximizethe
Condemnation
Awardfrom, any such Condemnation
Action, (ii) Landlordshall not accept or agree
to any conveyancein lieu of any condemnationor taking without the prior consent of Tenant, which
consent shall not be unreasonablywithheld and (iii) Landlordand Tenantshall cooperate with each
other in any such Condemnation
Action and provide each other with such informationand assistance
as each shall reasonably request in connection with such Condemnation
Action.
Section 14.6 Notice of Condemnation.
In the event Landlord or Tenant receives notice
of any proposedor pendingCondemnation
Actionaffecting the LeasedPremises, the Party receiving
such notice shall promptlynotify the other Party.
Section 14.7 Survival. The provisions contained in this Article 14 shall survive the
expiration or earlier terminationof this StadiumLease, but only insofar as such provisionsrelate to
any CondemnationActions or CondemnationAwardsthat arose prior to the expiration or earlier
termination of this StadiumLease.
Section 14.8 RodeoLand.In the event that all or any portion of the RodeoLandshall be
subject to a Condemnation
Actionand as a result Landlordis unableto fulfill its parkingobligations
to Tenant under the Existing RodeoLease, including Section 2.5.4 of this Amendment,
Tenant
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agrees to contribute the proceeds of its condemnationaward for such CondemnationAction
towards
Tenant’s acquisition of real property to be used as part of the Additional Parking Landand as a
replacementfor the RodeoLand, or such portion taken by the Condemnation
Action. Tenant further
agrees that any real property so acquired shall be conveyedby Tenantto Landlord(or the County,
if so requested) under the sameterms and conditions as to which the RodeoLandwas conveyedto
the Countyas of the Effective Date.
ARTICLE 15
ASSIGNMENT~ SUBLETTING
Section 15.1 Assignments of Tenant’s Interestl Subleasing. Except as otherwise
permitted by this Article 15 or Section 17.1, Tenantmaynot (and Tenantagrees that it will not),
voluntarily, involuntarily, by operation of law or otherwise (including by way of merger or
consolidation), sell, assign, transfer, sublease, pledge, mortgageor encumberthis StadiumLeaseor
the LeaseholdEstate (each, a "Transfer"), without (i) first obtaining the consent of Landlord
during the BondInsurancePeriod, BondInsurer pursuant to this Article 15, whichconsent shall not
be unreasonablywithheldand (ii) unless such Transfer is a PermittedTransfer, a concurrenttransfer
of all of Tenant’srights and obligations under all of the Principal Project Documents
in accordance
with the terms of the Principal Project Documents.For purposes of this StadiumLease, the term
"Transfer" shall also include any issuanceor transfer of any securities or interests havingordinary
voting powerfor the election of directors (or other comparablecontrolling body)of Tenant or any
transfer of an equity or beneficial interest in Tenant that results in either (x) a changeof the
Controlling Person, if any, of Tenant, or (y) the creation of a Controlling Personof Tenant, where
none existed before. Landlord and Tenant agree that notwithstanding the foregoing, the term
"Transfer" shall not include, and Landlord’s consent shall not be required for, any grant of a
mortgage,pledge, assignmentand/or other security interest or Lien in or on any of Tenant’strade
fixtures, equipment,personalPropertyor general intangibles that are not part of the LeasedPremises.
Section 15.2 PermittedTransfers. Although the following shall constitute a Transfer
under this Stadium Lease (each, a "Permitted Transfer"), Landlord’s and, during the Bond
Insurance Period, BondInsurer’s consent to such Permitted Transfer shall be deemedto have been
obtained provided no uncured Tenant Default for which Landlord or, during the BondInsurance
Period and with respect to an Eventof Default under Section 18.1.1 (a), Section 18.1.1(c) or Section
18.1.1 (d), BondInsurer has delivered notice to Tenantshall then exist:
(a) AnyTransfer to a Person that (i) is a 501(c)(3) Entity, (ii) succeeds
as the sponsor or licensee of the SpringRodeoand RodeoFestival and (iii) succeedsTenant’s
interest underthe Existing RodeoLease(but only to the extent in force and applicable) (the
"TenantTransferee");
(b) AnySpace Lease, provided such Space Lease is subject and subordinate
this StadiumLease;
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(c)
Anysublease or license to any Person for the purpose of the exhibition,
presentation, broadcasting (or other transmission) or operation of a Tenant Event;
(d) Anyassignment, transfer, mortgage, pledge or encumbranceof any of the
Tenant’s receivables, accounts or revenue streams from the Leased Premises provided the
sameis subject and subordinate to this StadiumLease and the other Principal Project
Documents; and
o
(e)
Anyissuance or transfer of any securities, interests or membership
having
ordinary voting powerfor the election of directors.
Section 15.3 Release of Tenant. No Transfer shall relieve Tenant from any of its
obligations under this StadiumLease except that Tenant shall be relieved from any obligations
arising under this StadiumLeaseafter the date of a PermittedTransfer if, and only if, all of the
following occur:
(a)
Tenant has notified Landlordand, during the BondInsurance Period, Bond
Insurer of the nameand address of the TenantTransfereeand the Controlling Person, if any,
of such Tenant Transferee by the time of the Permitted Transfer;
(b)
TheTenant Transferee must also be the successor by assignmentof Tenant’s
rights underthe Existing RodeoLease(but only to the extent in force and applicable) and the
other Principal Project Documents;
(c)
Such Transfer is a Permitted Transfer described in Section 15.2(a) or such
Transfer has been approvedin accordancewith Section 15.1 hereof;
(d)
The Tenant Transferee shall have assumedresponsibility for performance
of all of the obligations of Tenantunder the Principal Project Documents
arising on and after
the date of the Transfer pursuant to an instrumentof assignmentand assumptionsubstantially
in the form of the Assignmentand AssumptionAgreementattached hereto as Exhibit D or
if not substantially in such form, then in a formapprovedby Landlordand, during the Bond
InsurancePeriod, BondInsurer, whichapproval shall not be unreasonablywithheld and shall
be limited to the question of whethersuch instrument, whenduly executed, will accomplish
its intended purposes under this Stadium Lease (the "Assignment and Assumption
Agreement"); and
(e)
Duringthe seven (7) years precedingthe date of the PermittedTransfer,
Tenant Transferee or any Person whois a Controlling Person of the Tenant Transferee as of
the date of the Transfer, shall not havebeenconvictedin a federal or state felony criminal
proceeding(including a convictionentered on a plea of nolo contendere)of a crime of moral
turpitude, unless the same shall have been subsequently reversed, suspended, vacated,
annulled, or otherwise rendered of no effect under applicable GovernmentalRule (the
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163268.24 5/9/01
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requirementspecified in this Subparagraph
(e) being hereinreferred to as the "Controllin~
Person Requirement").
(f)
As of the date of the PermittedTransfer(after givingeffect to the Transfer),
the Net Worthof the TenantTransferee shall be no less than an amountequal to TenMillion
and No/100Dollars ($10,000,000.00) (the "Financial Test"); provided, ’however, that the
foregoingrequirementto meet the Financial Test shall only apply during the BondInsurance
Period.
(g)
TheTenantTransferee’s satisfaction of the Financial Test, if necessary,
of the date of the Transfer(after giving effect to the Transfer) shall be evidencedby, and
deemedsatisfied by, (i) representations to that effect by the Tenant Transferee in the
Assignment and Assumption Agreement and (ii) a letter addressed and delivered
Landlordand, during the BondInsurance Period, BondInsurer, and Tenant (at Tenant’s or
the Tenant Transferee’s expense)from a firm of independentcertified public accountantsof
recognizednational standing and stating that, based uponan audit of the TenantTransferee
up to and including the date of the Transfer (after giving actual or proformaeffect to the
Transfer) madein accordancewith generally accepted auditing standards, in such firm’s
opinionthe FinancialTest is/was metas of the date of the Transfer, suchletter to be subject
to such qualifications and assumptionsas are usual and customary.at such time for opinions
of auditing firms.
In the event within the thirty (30) days after the date transferring Tenantor the TenantTransferee
delivers to Landlordand, during the BondInsurance Period, BondInsurer the accountant’s letter
described in Subparagraph(g) above, Landlordor, during the BondInsurance Period, BondInsurer
deliver to transferring Tenantand the TenantTransferee a request that such requesting Landlordor
BondInsurer be provided an opportunity to inspect and review the workpapers used by such
accountingfirm in the preparation of such letter (all costs of any such inspection and reviewto be
at such requesting Landlord’sor BondInsurer’s expense), the transferring Tenant and the Tenant
Transferee shall cause such accountingfirm to makesuch workpapers available for inspection and
review (but not retention or copying) by an individual designated by such requesting Landlord
BondInsurer whois reasonably acceptable to the transferring Tenant. Such inspection and review
by the individual designated by such requesting Landlordor BondInsurer shall take place during
the thirty (30) day period following the later of the delivery of such request by :such requesting
Landlordor BondInsurer or the approvalby the transferring Tenantof the individual designatedby
such requesting Landlordor BondInsurer and shall be at a reasonable location designated by such
accountingfirm. Suchrequesting Landlordor BondInsurer and the individual so designated by such
requesting Landlordor BondInsurer for the inspection and review of such workpapers shall agree
to maintainthe confidentiality of such workpapers, except as required by applicable Governmental
Rule, and shall enter into such confidentiality agreementwith respect to the sameas the transferring
Tenant, the TenantTransferee or such accountingfirm shall reasonably request consistent with the
foregoing.
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Section 15.4 Space Leases. Tenant shall have the right to enter into Space Leases and
engage such third party vendors and contractors and enter into such other agreements or
arrangementswith other Persons as Tenant deemsnecessary, advisable or desirable to fully enjoy
and exploit its rights as to the Leased Premises on Tenant Event Days, and as to the Tenant’s
Facilities at all times during the Lease Term, subject to the terms of the Stadium Tri-Party
Agreement,provided that each such Space Lease shall be subject and subordinate to this Stadium
Leaseand to the rights of Landlordhereunderand shall expressly so state and shall complywith the
terms of the StadiumTri-Party Agreement.Notwithstandingany such subletting, Tenantshall at all
times remainliable for the performanceof all of the covenantsand agreementsunder this Stadium
Lease on Tenant’s part to be so performed.
Section 15.5 Transfers by Landlord.Except with respect to a Landlord Transfer to the
Countyor a CountyAffiliate and Facility Mortgagespermitted pursuant to the terms of Article 16,
Landlordshall not (and Landlordagrees that it will not) voluntarily, involuntarily, by operation
lawor otherwise,sell, assign or otherwisetransfer this StadiumLeaseor any of its rights, obligations
or duties under this StadiumLease (a "Landlord Transfer"), without first obtaining the consent
of Tenant, whichconsent maybe withheld, delayed or conditioned in Tenant’s sole discretion. The
followingconditions must be compliedwith prior to, or simultaneouslywith, any LandlordTransfer,
(i) Landlord must notify Tenant of the nameand address of the Person whoLandlord desires
succeed to the rights and obligations of Landlord under this Stadium Lease (a "Landlord
Transferee"),(ii) Tenant’s consent must be obtained with regard to any Landlord Transfer other
than a Landlord Transfer to the County or a CountyAffiliate or Facility Mortgagespermitted
pursuant to the terms of Article 16, (iii) the LandlordTransferee shall have (x) received,
acknowledgedreceipt of, the collected balance of the Capital Repair ReserveFundand Insurance
Fund, if any, established a newCapital Repair ReserveAccountand Insurance Accountin its name,
and deposited such amountsinto escrow in such newCapital Repair Reserve Accountand Insurance
Account,as appropriate, for the benefit of Tenantand the NFLClub and to be held and distributed
in accordancewith this StadiumLease and the StadiumTri-Party Agreementas part of the Capital
Repair ReserveFundand Insurance Fund, as appropriate, and (y) assumedall of the obligations
Landlord under the Principal Project Documentsarising on and after such Landlord Transfer and
agreed to be boundby all of the terms, conditions and provisions of the Principal Project Documents,
all pursuant to an instrument in form and substance approved by Tenant and, during the Bond
Insurance Period, BondInsurer, which approval shall not be unreasonably withheld and shall be
limited to the question of whethersuch instrument, whenduly executed, will be legally adequateto
accomplish its intended purpose under this Stadium Lease if the Landlord Transferee is a
governmentalentity, but otherwise maybe withheld in Tenant’s or, during the BondInsurance
Period, BondInsurer’s discretion, (iv) with respect to any LandlordTransferthat occurs prior to the
Substantial CompletionDate, Landlord shall have provided Tenant and, during the BondInsurance
Period, BondInsurer with evidence, reasonablyacceptable to Tenantand, during the BondInsurance
Period, BondInsurer that the LandlordTransferee has the financial wherewithalto performall of
Landlord’sobligations under this StadiumLeaseand the other Principal Project Documents
and that
such Landlord Transfer complies with all applicable GovernmentalRules, and (v) following the
Landlord Transfer, the Landlord Transferee must own, lease or otherwise control all of the
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AstrodomainComplexand the Additional Parking Land in a mannerthat permits such Landlord
Transferee to fulfill all of Landlord’sobligations under the Principal Project Documents.
Section 15.6 Release of Landlord.No Landlord Transfer shall relieve Landlord from
any of its obligations under this StadiumLease except that Landlordshall be relieved from any
obligations arising underthis StadiumLeaseon and after the date of a LandlordTransferif, and only
if (i) Tenant and, during the BondInsurance Period, BondInsurer consents to such Landlord
Transfer or (ii) Tenant’sconsentto such LandlordTransfer is not required pursuantto Section 15.5.
Section 15.7 EstoppelCertificate. In connection with any Permitted Transfer, Transfer
to which Landlordhas provided its consent, permitted LandlordTransfer or financing by Tenant,
Landlordor the Sports Authority, Tenant and Landlordagree to execute and deliver to each other
an estoppel certificate intended to be relied uponby Tenant, Landlordand any transferee or assignee
pursuant to such PermittedTransfer, Transfer to whichLandlordhas providedits consent, permitted
LandlordTransfer or financing by Tenant, Landlordor the Sports Authority, as the case maybe, or
any third party lender stating:
(a)
Whetherthis StadiumLease is unmodifiedand is in full force and effect (or,
if there have been modifications, that this StadiumLease is in full force and effect as
modifiedand stating the modifications);
(b)
To the knowledgeof Landlordor Tenant, as the case maybe, whetherthere
are any Tenant Defaults or any Landlord Defaults (and specifying each such default or
potential default as to whichLandlordor Tenant, as the case maybe, has knowledge);and
(c)
Landlord’sor Tenant’s current address, as the case maybe, for purposes
giving notice.
Section I5.8 BondInsurer Consent to LandlordTransfer. During the Bond Insurance
Period and in addition to Landlord’scompliancewith all of the terms and conditions of this Article
1_55with respect to any LandlordTransfer, Landlordcovenantsand agrees that Landlordwill (i)
deliver a copyof the notice required to be deliveredto Tenantpursuant to clause (i) of Section15.5
to the BondInsurer and (ii) obtain the consentof the BondInsurer to the identity of any Landlord
Transferee that is not the Countyor a CountyAffiliate, each prior to any such LandlordTransfer.
In connectionwith a LandlordTransfer during the BondInsurance Period to a LandlordTransferee
whois a CountyAffiliate, Landlord must provide to the BondInsurer a legal opinion reasonably
satisfactory to the BondInsurer stating that such CountyAffiliate is subject to Chapter9 of the
United States BankruptcyCode, as amended.
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ARTICLE 16
FACILITY MORTGAGES
Section 16.1 Facility Mortgages.Landlord maygrant Liens against or with respect to
its interest in the Leased Premises to secure a Project Financing and no other debt, provided,
howeverthat (i) any and all such Liens (including but not limited to, Facility Mortgages)placed
suffered by Landlordcoveting Landlord’sinterest in the LeasedPremisesshall be,expressly subject
and subordinate in any and all respects to this StadiumLease and the other Principal Project
Documents,
all of the obligations of Landlordhereunderand thereunder,and all of the rights, titles,
interests and estates of Tenant (and those claiming by, through and under Tenant, including Space
Tenants)created or arising under this StadiumLease, (ii) any judicial or non-judicial foreclosure
sales under any such Liens and any conveyancesin lieu of foreclosure under any such Liens shall
constitute a LandlordTransferthat is subject to the termsand conditionsof Section15.5 and (iii) for
so long as the BondInsurer has any obligation or commitment
under any insurance policy covering
any outstandingPublic Debt of the Sports Authority with respect to the Stadium,Landlordshall not
be entitled to grant any Lien otherwisepermittedpursuant to the terms of this Section 16.1 against
or with respect to Landlord’s interest in the Stadium. Notwithstandingthe foregoing, Landlord
covenantsand agrees that contemporaneously
with granting any Liens against or with respect to its
interest in the LeasedPremises to secure a Project Financing, Landlord will cause any Facility
Mortgageeto enter into a recordable non-disturbance agreementin form and substance reasonably
acceptable to Tenant containing non-disturbance provisions reasonably acceptable to Tenant
protecting Tenant’s rights under this StadiumLease and the other Principal Project Documents(a
"Facility Mortgage Non-Disturbance Agreement"). Any such Facility Mortgage NonDisturbance Agreementshall include, but need not be limited to, an agreement by the Facility
Mortgageethat (i) the rights of Tenantunderthis StadiumLease, and all termsand conditionsof this
StadiumLease, shall not be affected or disturbed by the Facility Mortgageein the exercise of any
of its rights underthe Facility Mortgage,(ii) if any judicial or non-judicial foreclosuresale occurs
under the Facility Mortgageor any conveyancein lieu of foreclosure occurs under the Facility
Mortgage,this StadiumLease shall continue in effect and shall not be terminated and the purchaser
of the LeasedPremisesshall becomeboundto Tenantto performall of Landlord’sobligations under
this StadiumLeaseand (iii) any judicial or non-judicial foreclosure sales under any such Facility
Mortgageand any conveyances in lieu of foreclosure under any such Facility Mortgageshall
constitute a LandlordTransfer that is subject to the terms and conditions of Section 15.5.
Section 16.2 Pledge of Payments.Notwithstanding anything to the contrary in Section
16.1, but subject to the prohibition on pledging the Capital Repair ReserveFundset forth under
Article 8, Landlordmaypledge the GuaranteedPaymentpayable pursuant to this StadiumLease to
the paymentof one or moreobligations of Landlordor the Sports Authority, including the Public
Debt, provided that no such pledge maycreate a Lien covering Landlord’s interest in the Leased
Premisesother than as authorized pursuant to Section 16.1.
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ARTICLE 17
TENANT MORTGAGES
Section 17.1 TenantMortgages.Tenant maygrant Liens against or with respect to its
interest in the LeasedPremisesto secure a Tenant Financingand no other debt, provided, however
that any and all such Liens (including but not limited to, TenantMortgages)placed or suffered
Tenantcovering Tenant’sinterest in the LeasedPremisesshall be expressly subject and subordinate
in any and all respects to the provisions of this StadiumLease and the other Principal Project
Documents
and all of the obligations of Tenanthereunderand thereunder,and all of the rights, titles,
interests and estates of Landlord(and those claiming by, through and under Landlord)created
arising under this StadiumLease and the other Principal Project Documents
and the rights, titles,
interests and estates of the NFLClub (and those claiming by, through and under the NFLClub)
created or arising under the Principal Project Documents.Duringthe BondInsurance Period, Tenant
shall not enter into any contract in whichit expressly agrees that any of its obligations to make
paymentsthereunder are senior in right of paymentto its obligation to pay each GuaranteedPayment
as due, providedthat the existence, fromtime to time and at any time, of collateral or other credit
enhancementor security in respect to any Tenant obligation other than such obligation to pay each
GuaranteedPayment
as due shall not constitute a breachof, or result in a default under, the foregoing
Tenant undertakingor any other provision of this StadiumLease(subject to the requirementswith
respect to Lienson the LeasedPremisesset forth in this Section 17.1) or any other Principal Project
Document.
Section 17.2 Tenant Mortgagee Protection.
17.2.1
AcknowledgmentandAgreementbyLandlord.
Landlord acknowledges
and agrees that:
(a)
During the Lease Term, in the event of any act or omission
Tenantwhichwouldgive Landlordthe right, either immediatelyor after the lapse of time,
to terminatethis StadiumLeaseor Tenant’sright of occupancyof all or any part of the Lease
Premises, or to claim a partial or total eviction, Landlordwill not exercise any such right
until:
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(i)
it has given written notice of such act or ’omissionto any
Tenant Mortgageeof which Landlord has notice; and
(ii)
the period of time as is given to Tenantunder this Stadium
Leaseto cure such act or omissionplus an additional period
of sixty (60) days(except, only with respect to a failure
Tenant under Section 18.1.1 (a) during the BondInsurance
Period, such additional period shall be thirty (30) days)
shall have elapsed following such giving of notice to any
Tenant Mortgagee, it being understood that any Tenant
Mortgageeshall havethe opportunity, but not the obligation
64
to cure Tenant’s act or omission. AnyTenant Mortgagee
shall keep the BondInsurer (during the BondInsurance
Period) reasonably and promptly informed concerning its
course of action in effecting a cure of any such Tenantact
or omission.
(b)
It shall send a copy of any notice or statement under this Stadium
Lease to any Tenant Mortgageeof whomLandlord has notice at the sametime such notice
or statementis sent to Tenant.
(c) It shall not (i) grant to any Personor permit any Person,in each
other than Tenant, the right or opportunityto cure any such act or omissionduring any period
that any Tenant Mortgageeshall have the opportunity to cure such Tenant act or omission
or (ii) exercise its rights under Section18.4 until all such opportunity-to-cureperiods shall
have ceased.
17.2.2 Foreclosure and Sale. In the event of foreclosure of any Tenant Mortgage,
or upona sale of the LeaseholdEstate pursuant to the trustee’s powerof sale containedtherein, or
upona transfer of the LeaseholdEstate by conveyancein lieu of foreclosure, then providedthat the
purchaseror other transferee of such LeaseholdEstate cures all defaults of Tenantunder the Stadium
Lease and other Principal Project Documents:
(a) This StadiumLeaseshall continuein full force and effect as a direct
lease betweenthe succeeding ownerof the LeaseholdEstate and Landlord, upon and subject
to all of the terms, covenantsand conditions of this StadiumLeaseand the other Principal
Project Documents,for the balance of the term of this StadiumLease. Landlord hereby
agrees to accept any such successor ownerof the Leasehold Estate as Tenant under this
StadiumLease, providedthat such successor ownerof the LeaseholdEstate (i) succeedsthe
Tenantas the sponsoror licensee of the SpringRodeoand RodeoFestival, (ii) is a 501(c)(3)
Entity, (iii) is the successorunder the Existing RodeoLease(but only to the extent in force
and applicable) and (iv) meets the Controlling Person Requirement;
(b) Anysuccessor owner of the Leasehold Estate shall not be bound
any agreementor modification of this StadiumLease or any of the other Principal Project
Documentsmadewithout the written consent of the Tenant Mortgagee; and
(c)
Uponthe written request of such Tenant Mortgagee,Landlord or,
during the BondInsurance Period, BondInsurer given to the others at the time of any
foreclosure, trustee’s sale or conveyance in lieu thereof, Landlord and such Tenant
Mortgageeagree to execute a newlease of the Leased Premises upon the sameterms and
conditions as this StadiumLease and the other Principal Project Documents,which lease
shall cover any unexpired term of this StadiumLease existing prior to such foreclosure,
trustee’s sale or conveyance
in lieu of foreclosure.
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ARTICLE 18
DEFAULTS AND REMEDIES
Section 18.1 Events of Default.
18.1.1 TenantDefault. The occurrence of any of the following shall be an "Event
of Default" by Tenant or a "TenantDefault":
(a)
The failure of Tenant to pay any of the GuaranteedPaymentwhen
due and payable under this StadiumLease if such failure continues for morethan ten (10)
days after Landlord or, during the BondInsurance Period, BondInsurer gives notice to
Tenant that such amountwas not paid whendue;
(b) The failure of Tenant to pay any of the Additional Paymentswhen
due and payableunder this StadiumLeaseif such failure continuesfor morethan thirty (30)
days after Landlordgives notice to Tenant that such amountwas not paid whendue;
(c)
The failure of Tenant to perform each and every covenant and
agreementof Tenant with respect to insurance policies and coverages to be maintained by
Tenantpursuant to and in accordancewith Article 10 and AppendixE attached hereto if such
failure is not remediedwithin five (5) days after Landlordor, during the BondInsurance
Period, BondInsurer gives notice to Tenantof such failure;
(d) Anymaterial representation or warranty confirmed or madein this
StadiumLease by Tenantor in any certificate required to be delivered by Tenant pursuant
to this StadiumLease shall be found to have been incorrect in any material respect when
madeor deemedto have been madeif such failure is not remediedwithin thirty (30) days
after Landlordor, during the BondInsurancePeriod, BondInsurer gives notice to Tenantof
suchfailure;
(e)
If any "RodeoDefault" occurs under the Project Agreementand
remainsuncuredafter the lapse of the applicable notice and cure period, if any, providedfor
under the terms of the Project Agreement;
(f)
If any "Licensee Default" occurs under the ,Rodeo License
Agreementand remains uncuredafter the lapse of the applicable notice and cure period, if
any, provided for under the terms of the RodeoLicense Agreement;
(g) If any "Event of Default" of the "Rodeo"occurs under the Stadium
Tri-Party Agreementand remainsuncuredafter the lapse of the applicable notice and cure
period, if any, providedfor under the terms of the StadiumTri-Party Agreement;
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(h)
If any "Event of Default" by Tenant occurs under the Funding
Agreementand remainsuncuredafter the lapse of the applicable notice and cure period, if
any, provided for under the terms of the FundingAgreement;
(i)
Thefailure of Tenantto keep, observe or performany of the terms,
covenants or agreements contained in this Stadium Lease on Tenant’s part to be kept,
performed
or observed(other than those referred to in clauses(a), (b), (c), (d), (e),
(h) above)if: (i) such failure is not remediedby Tenantwithin thirty (30) daysafter
from Landlordof such default or (ii) in the case of any such default whichcannot with due
diligence and goodfaith be cured within thirty (30) days, Tenantfails to commence
to cure
suchdefault withinthirty (30) days after notice fromLandlordof such default or Tenantfails
to prosecute diligently the cure of such default to completionwithin such additional period
as maybe reasonablyrequired to cure such default with diligence and in goodfaith; it being
intended that, in connectionwith any such default whichis not susceptible of being cured
with due diligence and in goodfaith within thirty (30) days, the time within whichTenant
is required to cure such default shall be extended for such additional period as maybe
necessaryfor the curing thereof with due diligence and in goodfaith; provided,however,that
if such default is not cured withinninety (90) days after notice fromLandlordof suchdefault
(notwithstandingTenant’sdiligent prosecutionof curative efforts), then such failure shall
constitute an Event of Default under this StadiumLease; or
(j)
The(1) filing by Tenant of a voluntary petition in bankruptcy;
(2) adjudication of Tenantas a bankrupt;or (3) the filing of any petition or other pleading
in any action seeking reorganization, rearrangement,adjustment, or compositionof, or in
respect of Tenant under the United States BankruptcyCodeor any other similar state or
federal law dealing with creditors’ rights generally, unless within sixty (60) days after such
filing such proceedingis discharged;or (4) appointmentofareceiver, trustee or other similar
official of Tenantor its Property.
18.1.2 Landlord Default. The occurrence of any of the following shall be an
"Event of Default" by Landlord or a "Landlord Default":
(a)
Thefailure of Landlordto pay any of its monetaryobligations
Tenant under this StadiumLeasewhendue and payable if such failure continues for fifteen
(15) Business Daysafter Tenant gives notice to Landlord that such amountwas not paid
when due;
(b)
Themisapplication by Landlord of any material amountof monies
deposited into the Capital Repair Reserve Account or Insurance Account if such
misapplicationcontinues for, or is not cured within, fifteen (15) BusinessDaysafter Tenant
gives notice to Landlordthat such misapplication occurred;
(c)
Anymaterial representation or warrantyconfirmedor madein this
StadiumLease by Landlord shall be found to have been incorrect in any material respect
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whenmadeor deemedto have been madeif such failure is not remediedwithin thirty (30)
days after Tenantgives notice to Landlordof such failure;
(d) The failure of Landlord to perform each and every covenant and
agreementof Landlordwith respect to insurance policies and coveragesto be maintainedby
Landlordpursuant to and in accordancewith Article 10 and AppendixE if such failure is
not remediedwithin five (5) days after Tenantgives notice to Landlordof such failure;
(e)
If any "HCSCC
Default" occurs under the Project Agreementand
remainsuncuredafter the lapse of the applicable notice and cure period, if any, providedfor
under the terms of the Project Agreement;
(f)
If any "Licensor Default" occurs under the Rodeo License
Agreementand remainsuncuredafter the lapse of the applicable notice and cure period, if
any, provided for under the RodeoLicense Agreement.
(g)
If any "Event of Default" of the "Landlord" occurs under the
StadiumTri-Party Agreementand remains uncuredafter the lapse of the applicable notice
and cure period, if any, providedfor under the terms of the StadiumTri-Party Agreement;
(h) If any "Event of Default" by the Sports Authority or Landlordoccurs
under the FundingAgreementand remains uncuredafter the lapse of the applicable notice
and cure period, if any, provided for under the FundingAgreement;
(i)
Thefailure of Landlordto operate, Maintainand repair the Leased
Premisesas required by this StadiumLease if: (i) such failure is not remediedby Landlord
withinthirty (30) daysafter notice fromTenantof such failure or (ii) in the case of any
failure whichcannot with due diligence and goodfaith be cured within thirty (30) days,
Landlordfails to commence
to cure such failure within thirty (30) days after notice from
Tenantof such failure or Landlordfails to prosecute diligently the cure Of such failure to
completionwithin such additional period as maybe reasonablyrequired to cure such failure
with diligence and in goodfaith; it beingintended that, in connectionwith any such failure
whichis not susceptible of being cured with due diligence and in goodfaith within thirty
(30) days, the time within whichLandlordisrequired to cure such failure Shall be extended
for such additional period as maybe necessaryfor the curing thereof with due diligence and
in goodfaith; provided, however,that if such failure is not cured within one hundredfifty
(150) days after notice from Tenant of such failure (notwithstanding Landlord’s diligent
prosecutionof curative efforts), then suchfailure shall constitute an Eventof Default under
this StadiumLease;providedfurther, however,any failure of Landlordto Operate, Maintain
and repair as aforesaid shall be subject to the provisionsfor Fast-TrackArbitration(set forth
in AppendixF of this StadiumLease) without regard to any grace or cure period provided
herein; or
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(j)
Thefailure of Landlordto keep, observeor performany of the terms,
covenants or agreementscontained in this StadiumLease on Landlord’s part to be kept,
performed
or observed(other thanthose referredto in clause(a), (b), (c), (d), (e), (f),
or (i) above)if: (i) such failure is not remediedby Landlordwithin thirty (30) days
notice from Tenantof such failure or (ii) in the case of any such failure whichcannot with
due diligence and goodfaith be cured within thirty (30) days, Landlordfails to commence
to cure such failure within thirty (30) days after notice from Tenant Of such failure
Landlordfails to prosecute diligently the cure of such failure to completionwithin such
additional period as maybe reasonablyrequired to cure such failure with diligence and in
good faith; it being intended that, in connection with any such failure which is not
susceptible of being cured with due diligence and in goodfaith within thirty (30) days, the
time within which Landlord is required to cure such failure shall be extended for such
additional period as maybe necessaryfor the curing thereof with due diligence and in good
faith; provided,however,that if suchfailure is not curedwithin ninety (90) days after notice
from Tenant of such failure (notwithstanding Landlord’s diligent prosecution of curative
efforts), then such failure shall constitute an Event of Default under this StadiumLease;
provided further, however,an Event of Default becauseof the breach of the covenantsand
agreementsunder Section 2.4 by Landlord, the Countyor any CountyAffiliate shall entitle
Tenantto exercise only those remediesset out in Section 2.4 as limited therein.
Section 18.2 Landlord’s Remedies. Upon the occurrence of any Tenant Default,
Landlordmay,in its sole discretion, pursue any one or moreof the following remedieswithout any
notice or demandwhatsoever, other than any notice expressly provided in this StadiumLease:
(a)
Landlord mayterminate this Stadium Lease and other Principal Project
Documents(other than the Existing RodeoLease) pursuant to Section 18.4, and uponsuch
termination Landlord mayforthwith reenter and repossess the Leased Premises by entry,
forcible entry, detainer suit or otherwise, without demandor notice of any kind and be
entitled to recover, as damagesunder this StadiumLease, a sumof moneyequal to the total
of the following, less any GuaranteedPaymentspreviously paid for periods subsequent to
the date of termination to the extent the samehas not been previouslypaid to Tenantby the
Sports Authorityor Landlord(i) the reasonable and necessarycost of recovering the Leased
Premises, (ii) the reasonable and necessary cost of removingand storing Tenant’sproperty,
(iii) the unpaid GuaranteedPaymentsand any other sumsaccrued hereunder at the date
termination, (iv) a sumequal to the amount,if any, by whichthe present value (calculated
based on the then existing blended rate on the Public Debt secured by the Guaranteed
Payments,taking into accountany synthetic fixed rate associated with an interest rate swap)
of the total Guaranteed Paymentswhich would have been payable by Tenant to Landlord
under this StadiumLease for the remainderof the LeaseTerm,if the terms of this Stadium
Lease had been fully compliedwith by Tenant, exceedsthe present value (calculated based
on the then existing blended rate on the Public Debt secured by the GuaranteedPayments,
taking into accountany synthetic fixed rate associated with an interest rate swap)of the total
fair market rental value of the LeasedPremisesfor the balance of the Lease Term,(v) any
increase in insurance premiumscaused by the vacancyof the Leased Premises and (vi) any
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other sum of moneyor damagesowedby Tenant to Landlord. In the event Landlord shall
elect to terminate this StadiumLease, Landlordshall at oncehaveall the rights of reentry
uponthe LeasedPremises, without becomingliable for damagesor guilty of trespass.
(b) Landlordmayterminate Tenant’s right of occupancyof all or any part of the
LeasedPremises and reenter and repossess the Leased Premises by entry, forcible entry,
detainer suit or otherwise, without demandor notice of any kind to Tenant and without
terrninating this StadiumLease, withoutacceptanceof surrender of possession of the Leased
Premises, and without becomingliable for damagesor guilty of trespass. Landlordshall be
obligated to attemptto relet the LeasedPremisesfor the accountof Tenantfor a period equal
to or greater than the remainderof the Lease Termon terms and conditions similar to the
terms and conditions of this StadiumLease whether Landlordhas electedto proceed under
Section 18.2(a) or Section 18.2(b) hereof. Tenant shall be liable for and shall pay to
Landlord all Guaranteed Paymentspayable by Tenant under this Stadium Lease plus an
amountequal to (i) the reasonable and necessarycost of recoveringpossession of the Leased
Premises, (ii) the reasonable and necessary cost of removingand storing any of Tenant’s
propertyleft on the LeasedPremisesafter reentry, (iii) the reasonableand necessarycost
any increase in insurance premiumscaused by the termination of possession of the Leased
Premises and (iv) any other sumof moneyor damagesowedby Tenant to Landlord at law,
in equity or hereunder, all reducedby any sumsreceived by Landlordthrough any reletting
of the LeasedPremises;provided, however,that in no event shall Tenantbe entitled to any
excess of any sumsobtained by reletting over and above the GuaranteedPaymentsprovided
in this StadiumLease to be paid by Tenant to Landlord. For the purpose of such reletting
Landlordis authorized to makeany reasonable repairs, changes, alterations or additions in
or to the LeasedPremises that maybe reasonably necessary to relet the LeasedPremises.
Landlordmayfile suit to recover any sumsfalling due under the terms of this Section18.2(b)
fromtime to time. Noreletting shall be construedas an election on the part of Landlordto
terminate this StadiumLeaseunless a written notice of such intention is given to Tenantby
Landlord. Notwithstanding any such reletting without termination, Landlord mayat any
time thereafter elect to terminate this StadiumLeasefor such TenantDefault and exercise
its rights under Section 18.2(a) of this StadiumLease subject to Tenantreceiving a credit
under Section 18.2(a) of this StadiumLease for any sumsobtained by such reletting.
(c)
Landlord mayenter upon the Leased Premises and do whatever Tenant
obligated to do under the terms of this Stadium Lease; and Tenant agrees to reimburse
Landlord on demandfor any reasonable expenses which Landlord mayincur in effecting
compliancewith Tenant’s obligations under this StadiumLease, and Tenant further agrees
that Landlordshall not be liable for any damagesresulting to Tenantfrom such action. No
action taken by Landlordunder this Section 18.2(c) shall relieve Tenant from any of its
obligations under this StadiumLeaseor fromany consequencesor liabilities arising from the
failure to performsuch obligations.
(d)
Landlordmayexercise any and all other remediesavailable to Landlordat law
or in equity, but subject to any limitations thereon set forth in this StadiumLease.
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18.2.1 Bond Insurer Remedies.
(a)
Uponthe occurrence of any Tenant Default during the Bond
InsurancePeriod, the BondInsurer (or its agents or designees)may,in its sole discretion but
subject to Section 17.2.1, enter upon the Leased Premises and do whatever Tenant is
obligated to do under the terms of this StadiumLease(it beingagreedthat BondInsurer shall
have no right by virtue hereof to select the managementof Tenant or otherwise make
decisionswith regardto the operationof Tenant,includingthe exercise of any dominion
[i. e.,
the exercise of ownershiprights] or control over Tenant’s assets), and Landlordagrees to
accept such performanceby the BondInsurer, and Tenantagrees that the BondInsurer shall
not be liable for any damagesresulting to Tenant fromsuch action. Noaction taken by the
BondInsurer under this Section 18.2.1 shall relieve Tenantfromany of its obligations under
this StadiumLease or fromany consequences
or liabilities arising fromthe failure to perform
such obligations.
(b) Uponthe occurrence of a Tenant Default under Section 18.1.1 (a)
during the BondInsurancePeriod, Landlordshall not exercise any rights or remediesunder
this Section 18.2 that will result in a termination of this StadiumLease without first
obtaining the written consent of the BondInsurer, whichconsent will not be unreasonably
withheld.
Section 18.3 Tenant’s Remediesfor LandlordDefault. Upon the occurrence of any
LandlordDefault, Tenantmay,at its sole discretion, have the option to pursue any one or moreof
the following remedies (subject to the provisions of Section 2.4) without any notice or demand
whatsoever,other than any notice expressly provided in this StadiumLease:
(a)
Tenant mayterminate this Stadium Lease and the other Principal Project
Documents(other than the Existing RodeoLease unless permitted pursuant
thereto) with respect to Tenantpursuant to Section 18.4, but subject to the
applicable limitations in Section 2.4;
(b)
In the circumstance described in Section 18.4.1, Tenant mayexercise the
remedies described in Section 18.4.1; and
(c)
Tenant mayexercise any and all other remedies available to Tenant at law
or in equity, but subject to any limitations thereon set forth in this Stadium
Lease.
Section 18.4 Termination. Upon the occurrence of a Landlord Default or a Tenant
Default, or as permittedin Section 18.6, the non-defaultingParty, in addition to its other remedies
at law or in equity, shall havethe right to give the defaulting Party notice (a "Final Notice")of the
non-defaultingParty’s intention to terminate this StadiumLeaseafter the expiration of a period of
thirty (30) days fromthe date such Final Noticeis deliveredunless the Eventof Defaultis cured, and
uponexpiration of such thirty (30) day period, if the Event of Default is not cured, this Stadium
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Lease and other Principal Project Documents
(other than the Existing RodeoLease unless permitted
pursuant thereto) shall terminate as betweenthe Parties (and not the NFLClub) withoutliability
the non-defaultingParty. If, however,within such thirty (30) day period the defaulting Party cures
such Event of Default, then this StadiumLeaseand the other Principal Project Documents
shall not
terminate by reason of such Final Notice. Notwithstandingthe foregoing, in the event there is an
Actionor Proceedingpendingor commenced
betweenthe Parties with respect to the particular Event
of Default coveredby such Final Notice, the foregoingthirty (30) day period shall be tolled until
final non-appealablejudgmentor award, as the case maybe, is entered with respect to such Action
or Proceeding. Additionally, in the event the Substantial CompletionDate does not occur on or
before the deadlinespecified in the Project Agreement,
Tenantshall also havethe option to terminate
this StadiumLease in accordancewith the Project Agreementor exercise the remedies described in
Section 18.4.1. Additional termination rights are set forth in Section 2.4, Section 13.3, Section
14.2.1, Section 18.6 and Section 18.7 of this StadiumLease.
18.4.1 Transfer of Stadium Lease to Astrodome.In the event prior to the
Commencement
Date (as determinedin accordancewith Section 3.1) Tenant has exercised its fight
to terminate the Project Agreementpursuant to Section 8.2 of the Project Agreement, then,
notwithstandinganythingto the contrary containedin the Principal Project Documents,(a)until such
time as Tenant receives all amountspayable to Tenant under Section 4.1.2.2, the other Principal
Project Documents
(except the FundingAgreement)shall remain in full force and effect and shall
be automatically modified to substitute the Astrodomefor the Stadiumanywheresuch Principal
Project Documentsrefer to the Stadium(other than the Existing RodeoLease) and the Guaranteed
Paymentshall be reducedto Tenand No/100Dollars ($10.00) and (b) after Tenantreceives all
amountspayable to Tenantunder Section 4.1.2.2, the other Principal Project Documents
(other than
the Existing RodeoLease) shall terminate, and Tenant’s use of the Astrodomeshall be governedby
the Existing RodeoLease, including Section 8.1.4 thereof.
18.4.2 Bond Insurer ComplexManagerReplacementOption. In the event that
during the BondInsurance Period Tenantdelivers its secondFinal Notice within any three (3) year
period that is based upon any Landlord Default caused by the failure of the ComplexManagerto
performits obligations under its management
agreementwith Landlord, the BondInsurer shall have
the fight, at its option and at the expenseof Landlord,to require Landlordto replace the Complex
Managerwith a qualified managerpursuant to the terms of Section 2.5 of the StadiumTri-Party
Agreement(the "ReplacementOption"). Further, Tenant agrees that if during the BondInsurance
Period, (i) any Final Noticeis delivered to Landlordpursuantto whichthe BondInsurer has the right
to exercise the ReplacementOptionin accordancewith this Section 18.4.2 and (ii) the BondInsurer
has delivered written notice to Tenantwithin twenty(20) days of the date of such Final Notice that
the BondInsurer has elected to exercise the ReplacementOption, then the thirty (30) day period
during whichLandlordhas the right to cure the LandlordDefault in accordancewith Section 18.4
aboveshall be automatically extendedfor an additional sixty (60) days.
Section 18.5 Tenant’s Self-Help Remedy.In the event Landlord fails to timely keep,
observe or perform any of the terms, covenants or agreementscontained in this StadiumLease or
any of the other Principal Project Documents
on Landlord’spart to be kept, performedor observed,
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regardless of whether such failure has becomeor is a Landlord Default (any such event,
circumstanceor failure by Landlordbeing herein referred to as a "LandlordFailure"), Tenantshall
havethe right, but not the obligation, uponsatisfaction of the requirementsand conditionsset forth
in this Section 18.5, to enter the LeasedPremisesand take all commerciallyreasonableefforts and
measuresto remedyand cure Landlord’sFailure (such rights of Tenant being herein referred to as
"Tenant’sSelf-Help Rights"). Prior to exercising Tenant’s Self-Help Rights, Tenant shall deliver
notice to Landlord, the NFLClub and, during the BondInsurance Period, the BondInsurer of
Landlord’sFailure and Tenant’sintention to exercise Tenant’s Self-HelpRights. In the event all of
the followingdo not occur prior to ten (10) days after the date Tenantdelivers to Landlordand the
NFLClub such notice of Tenant’s intention to exercise Tenant’s Self-HelpRights on the basis of a
LandlordFailure, Tenant shall have the right to enter the LeasedPremises and exercise Tenant’s
Self-Help Rights:
(a)
Landlordmust deliver to Tenant a commerciallyreasonable remedial plan
fully remedyand cure such Landlord Failure (a "RemedialPlan"), such RemedialPlan to
include reasonable assurances to Tenant that Landlord will fully remedyand cure such
LandlordFailure on or before the earliest reasonably possible date, and with a priority of
fully completingsuch remedyand cure by a date that is no later than the next TenantEvent
Dayscheduled in accordancewith this StadiumLease and the StadiumTri-Party Agreement;
and
(b)
Landlord must have (i) commencedgood faith efforts to fully cure
remedysuch LandlordFailure in accordancewith the RemedialPlan so that such failure is
fully curedand remediedat the earliest reasonablypossible date withoutregard to Landlord’s
access to, or the availability of, fundsfor sameand with a priority of fully completingsuch
remedyand cure by a date that is no later than the next Tenant Event Dayscheduled in
accordancewith this StadiumLeaseand the StadiumTri-Party Agreementand (ii) thereafter
continuously and diligently prosecuted the full cure and remedyof such LandlordFailure.
Notwithstandingthe foregoing, in the event of (i) an Emergencyduring a Tenant Event, Tenant
Non-Event
or affecting Tenantor its Propertyor (ii) the existenceof a conditionor circumstancethat
is capable of being cured before the next Tenant Event or Tenant Non-Eventand if not cured
immediatelywouldmaterially and adversely affect a Tenant Event or Tenant Non-Event,Tenant’s
Self-HelpRights shall not be conditioneduponsatisfaction of the aboverequirementsor conditions,
except that in all circumstances Tenant shall use reasonable efforts to notify Landlord or the
ComplexManagerby telephone of any such Landlord Failure. Landlord shall promptly reimburse
Tenant for all reasonable costs and expenses incurred by Tenant in exercising Tenant’s Self-Help
Rights and (i) to the extent such costs and expensesare for Capital Repair Work,Tenant shall
entitled to reimbursementfor such costs and expenses out of the Capital Repair ReserveAccount
and (ii) to the extent such costs and expenses constitute Casualty Repair Workor Condemnation
Repair WorkTenant shall be entitled to reimbursementout of Landlord’sshare of any Condemnation
Awardor Insurance Proceeds, as the case maybe. Landlord shall promptlyreplenish the Capital
Reserve Account for any amounts distributed to Tenant pursuant to this Section 18.5 as
reimbursementto Tenant for the costs and expenses of Capital Repair Workincurred by Tenant in
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exercising Tenant’s Self-Help Rights. Uponexercising its rights to remedyand cure a Landlord
Failure pursuant to this Section 18.5, Tenantshall thereafter continuouslyand diligently prosecute
the full cure and remedyof such Landlord Failure. Except for damagesresulting from Tenant’s
negligenceor willful misconduct,Tenantshall not be liable to Landlordor any other Personfor any
losses, damagesor expensesarising as a result of Tenant’s exercise of Tenant’sSelf-Help Rights.
Tenant’s exercise of Tenant’s Self-HelpRights shall not relieve Landlordfrom any consequencesor
liabilities arising as a result of any LandlordFailure. Theexercise by Tenantof Tenant’sSelf-Help
Rights shall not affect any other right or remedyTenantmayhave, nor shall the existence of Tenant’s
Self-Help Rights or the exercise thereof relieve Landlord of any duty or obligation under this
StadiumLease or any other Principal Project Document.
Section 18.6 Tenant’s Remediesfor ImpairedTenantability. In the event Landlord
fails to performany of its obligations under this StadiumLeaseor any of the other Principal Project
Documents,
regardless of whethersuch failure has becomeor is a LandlordDefault, and such failure
is not the direct result of a Casualty or Condemnation,in addition to the rights of Tenant under
Section 18.3 and Section 18.5:
(a)
If the failure results in the reduction of Tenant’sreasonablyprojected gross
revenues(whichincludes the imputedvalue of SpaceLeases) by less than ten percent (10%)
for only one (1) Spring RodeoEvent or RodeoFestival Event, then Tenant mayexercise any
and all remedies available to Tenant therefor under this StadiumLease, including bring a
cause of action against Landlordfor damages,including lost Net Revenuesincurred as a
direct result of Landlord’s failure, pursuant to Section 18.3 above, but subject to any
limitations thereon set forth in this StadiumLease.
(b) If the failure results in the reduction of Tenant’s reasonably projected gross
revenues (which includes the imputedvalue of Spaces Leases) by ten percent (10%)or
for only one (1) Spring RodeoEvent or RodeoFestival Event, then Tenant shall have the
right, in addition to Tenant’srights underSection 18.6(a) above,to offset the full amountof
Tenant’s damages,including lost Net Revenuesincurred as a direct result of Landlord’s
failure, against all paymentsdue or thereafter becomingdue from time to time under or in
connection with this Stadium Lease and the other Principal Project Documents(which
includes all Additional Payments), except reimbursementsdue to Landlord for staffing
expenses as described in Section 6.1.2 hereof and the GuaranteedPayment.
(c)
If the failure results, or the failure, together with subsequentfailures
Landlordto perform any of its obligations under this StadiumLease or any of the other
Principal Project Documents
result, in the reduction of Tenant’sreasonably projected gross
revenues(which includes the imputedvalue of SpaceLeases) by an amountthat is equal
twenty-five percent (25%)or morein the aggregate (regardless of the numberof Tenant
Events) or $750,000,whicheveris less, then Tenant shall have the right, in addi,tion to
Tenant’srights under Section 18.6(a) and Section 18.6(b) above, to offset the full amountof
Tenant’s damages,including lost Net Revenuesincurred as a direct result of Landlord’s
failure, against the GuaranteedPayment.
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(d) If the failure results, or the failure, together with subsequent failures
Landlordto perform any of its obligations under this StadiumLease or any of the other
Principal Project Documents
result, in the reduction of Tenant’sreasonablyprojected gross
revenues(which includes the imputedvalue of Space Leases) by an amountthat is equal
thirty-five percent (35%)or morein the aggregate (regardless of the numberof Tenant
Events) or $1,500,000, whicheveris less, then Tenant shall havethe right, in addition to
Tenant’s other rights under Section 18.6(a), Section 18.6(b) and Section 18.6(c) above, to
terminate this Stadium Lease and the other Principal Project Documents(other than the
Existing RodeoLease unless permitted pursuant thereto) with respect to Tenant pursuant to
Section 18.4 hereof.
Interest at the Interest Rate shall accrue on the amountof the damagesdue to Tenant
describedin this Section 18.6 from the day of the TenantEventapplicable thereto until the
time Landlord pays the amountof such damagesto Tenant or Tenant recovers such amount
through offsets or otherwise. Anysuch paymentby Landlord or recovery by Tenant shall
be applied (A) first, towardthe expensesof Tenant, including attorneys’ fees, incurred
enforcing Tenant’s rights with respect to the breaches or defaults by Landlordunder this
Section 18.6, (B) second, to reimburse Tenant for Tenant’s costs incurred in exercising
Tenant’s rights to do whateverLandlordis obligated to do under Section 18.5 abovewith
respect to such failures, (C) third, to pay Tenantthe interest on the damagesto Tenantat the
Interest Rate as described abovein this Section 18.6, and (D) fourth, to pay Tenant the
amountof such damages,in the order such damagesbecamedue from Landlord to Tenant.
If Tenant withdrewor was paid any funds from the Capital Repair ReserveAccountfor use
in the exercise of Tenant’srights underSection18.5, Tenantshall not be required to replenish
the Capital Repair Reserve Accountexcept out of the remainingbalance of such payments
by Landlordor such recovery through offsets or otherwise after the applications described
in clauses (A) through (D) of this paragraph, and otherwisethe Landlordshall so replenish
the Capital Repair Reserve Accountin accordancewith the requirements of Section 18.5.
In the event of anyfailure describedin clauses (a), (b), (c) or (d) aboveand the Tenant
is re-Bookedand conducted,then Tenantshall return to Landlordor other Personentitled under this
StadiumLease any sumsoffset or otherwise received by Tenant pursuant to a right of Tenantunder
this StadiumLease or any other Principal Project Documentwhich constitute damagesthat were
mitigated by the re-Bookingand conducting of such Tenant Event.
Section 18.7 Tenant’s Remedies for Untenantable Condition.
18.7.1 TenantEvent. In the event any Untenantable Condition shall exist, in
addition to any other remediesafforded to Tenant on account thereof under this StadiumLease and
the other Principal Project Documents,the GuaranteedPaymentsshall be reducedfor the period that
such condition exists or existed by an amountequal to $75,000.00 for each Tenant Event Dayon
which(i) all of the Spring RodeoEvents or RodeoFestival Events scheduledfor such Tenant Event
Daydo not occur due to such condition or (ii) any major componentof the Spring Rodeoor Rodeo
Festival scheduledfor such Tenant Event Day, including a concert, bar-b-que, carnival, livestock
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auction or "rodeo-like component" (each a "Major Component")does not occur due to such
condition (not to exceed $1,500,000.00in any full Lease Year). If such UntenantableCondition
not the result of a Casualtyor Condemnation
Actionand continues for a period longer than three (3)
consecutive Tenant Event Days, Tenant may,at its option, terminate this StadiumLease by giving
Landlordwritten notice of such election within thirty (30) days after the expiration of such period.
Tenant’s rights to terminate due to a Casualty or CondemnationAction are governedby Section
13.3.1 and Section 14.2.1 respectively. In the event any such Tenant Event is re-Bookedand held
in the Stadiumand a GuaranteedPaymentwasreducedas a result of the failure of such TenantEvent
to occur, then Tenant shall pay to Landlord the sumby whichthe GuaranteedPaymentwas reduced
less the damagesincurred by Tenantas a result of such failure and re-Booked.
18.7.2 Continuing Obligations. Anyperiod ofuntenantability shall not relieve
Tenantof any of its obligations under this StadiumLease, except as providedin this Article 18 or
under Article 13 or Article 14.
Section 18.8 Cumulative Remedies. Subjecttotheprovisions of this Article 18 and any
express provisions of the Principal Project Documentsto the contrary, each right or remedyof
Landlordand Tenant providedfor in this StadiumLease and the other Principal Project Documents
shall be cumulativeof and shall be in addition to every other right or remedyof Landlordor Tenant
provided for in this StadiumLease and the other Principal Project Documents,and the exercise or
the beginningof the exercise by Landlordor Tenant of any one or moreof the rights or remedies
providedfor in this StadiumLease or the other Principal Project Documents
shallnot preclude the
simultaneousor later exercise by Landlordor Tenantof any or all other rights or remediesprovided
for in this StadiumLeaseand the other Principal Project Documents
or hereafter existing at law or
in equity, by statute or otherwise. Tenantacknowledges
that it has no abatement,offset or self help
rights or remediesexcept as expressly providedfor in this StadiumLeasein Section 2.4, Section
18.5, Section 18.6 and Section 18.7, and does herebywaiveall such rights not expressly set out in
this StadiumLease in these Sections.
Section 18.9 Indirect
Damages IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY UNDER ANY PROVISION OF THIS STADIUM LEASE
FOR LOST OR PROSPECTIVE PROFITS, OR FOR ANY OTHER SPECIAL, INDIRECT,
INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, IN
CONTRACT, TORT OR OTHERWISE,
WHETHER OR NOT CAUSED BY OR
RESULTING FROM SUCH PARTY’S OWN, SOLE OR CONCURRENT NEGLIGENCE
OR THE NEGLIGENCE OF ITS AFFILIATES OR RELATED PARTIES, INCLUDING
CLAIMS OF THE OTHER PARTY ARISING OUT OF THIRD PARTY CLAIMS;
PRO VIDED, HOWEVER, THAT THE FOREGOINGIN THIS SECTION 18.9 SHALL NOT
BE CONSTRUEDTO LIMIT LANDLORD’S LIABILITY FOR (A) ACTUAL DAMAGES,
(B) LOST NET REVENUESUNDERSECTION 2.4 AND SECTION 18.6 AND (C) ALL
OFFSETS AND ABATEMENTS TO WHICH TENANT IS ENTITLED UNDER THIS
STADIUM LEASE.
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Section 18.10 Declaratoryor Injunctive Relief. In addition to the remedies set forth in
this Article 18, the Parties shall be entitled, in any circumstances they maydeemappropriate,
without the necessity of proving irreparable harm, balance of claims, consideration of the public
interest, establishing that monetarydamagesare inadequate or the posting of a bond, to seek
(i) injunctive relief, whetherprohibiting or mandating,action by the other Party for any Event
Default of the other Party or as otherwiseexpressly providedherein or (ii) declaratory relief with
respect to any matter under this StadiumLease or the other Principal Project Documents.Eachof
the Parties herebyagrees and irrevocablystipulates that the rights of each Party to injunctive relief
pursuant to this StadiumLease, including this Section 17.10, and the other Principal Project
Documents
shall not constitute a"claim"pursuant to Section 101(5) of the UnitedStates Bankruptcy
Codeand shall not be subject to discharge or restraint of any nature in any bankruptcyproceeding
involving the Party to whichany such injunctive relief applies.
Section 18.11 Interest on OverdueObligations and Post-JudgmentInterest. If any
sumdue hereunderis not paid by the due date thereof, the Party hereto owingsuch obligation to the
other Party shall pay to the other Party interest thereon at the Interest Rate concurrentlywith the
paymentof the amount, such interest to begin to accrue as of the date such amountwas due. Any
paymentof such interest at the Interest Rate pursuant to this StadiumLeaseshall not excuseor cure
any default hereunder. All paymentsshall first be applied to the paymentof accrued but unpaid
interest. Theamountof any judgmentor arbitration awardobtained by one Party against the other
Party in any Actionor Proceedingarising out of a default by such other Party under this Stadium
Leaseshall bear interest thereafter until paid at the Interest Rate.
Section 18.12 No Waivers.
18.12.1 General. Nofailure or delay of any Party, in any one or moreinstances,
(i) in exercising any power,right or remedyunder this StadiumLease or (ii) in insisting upon
strict performanceby the other Party of such other Party’s covenants, obligations or agreements
underthis StadiumLease, shall operate as a waiver, dischargeor invalidation, thereof, nor shall any
single or partial exercise of any such right, poweror remedyor insistence on strict performance,or
any abandonment
or discontinuanceof steps to enforce such a right, poweror remedyor to enforce
strict performance,preclude any other or future exercise thereof or insistence thereuponor the
exercise of any other right, poweror remedy. The covenants, obligations, and agreements of a
defaulting Party and the rights and remediesof the other Party upona default shall continue and
remainin full force and effect with respect to any subsequentbreach, act or omission.
18.12.2 No Accord and Satisfaction. Without limiting the generality of
Section 18.12.1, the receipt by Landlordof the Paymentswith knowledgeof a breach by Tenant of
any covenant, obligation or agreementunder this StadiumLease shall not be deemedor construed
to be a waiver of such breach (other than as to the Paymentsreceived). Thepaymentby Tenant
the Paymentswith knowledgeof a breach by Landlord of any covenant, obligation or agreement
under this Stadium Lease shall not be deemedor construed to be a waiver of such breach. No
acceptance by Landlordor Tenantof a lesser sumthan then due shall be deemedto be other than on
account of the earliest installment of the amountsdue under this StadiumLease, nor shall any
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endorsementor statement on any check, or any letter accompanying
any check, wire transfer or other
payment, be deemedan accord and satisfaction. Landlord and Tenant mayaccept a check, wire
transfer or other paymentwithoutprejudice to its right to recover the balanceof such installment or
pursue any other remedyprovided in this StadiumLease.
18.12.3 No Waiver of Termination Notice. Without limiting the effect of
Section 18.12.1, the receipt by Landlordof any Paymentspaid by Tenantafter the termination in any
mannerof the Lease Term,or after the giving by Landlordof any notice hereunderto effect such
termination, shall not, except as otherwise expressly set forth in this StadiumLease, reinstate,
continue or extend the Lease Term,or destroy, or in any mannerimpair the efficacy of, any such
notice of termination as mayhave been given hereunderby Landlordto Tenant prior to the receipt
of any such Paymentsor other consideration, unless so agreed to in writing and executed by
Landlord. Neither acceptance of the keys nor any other act or thing done by Landlord or by its
agents or employeesduring the Lease Termshall be deemedto be an acceptance of a surrender of
the Leased Premises, excepting only an agreementin writing executed by Landlord accepting or
agreeing to accept such a surrender.
Section 18.13 Effect of Termination.If Landlord or Tenant elects to terminate this
StadiumLeasepursuant to Section 2.4, Section 13.3, Section l4.2.1, Section 18.4, Section 18.6 or
Section 18.7 of this StadiumLease, this StadiumLease, and to the extent applicable to Tenant, the
Principal Project Documents,
shall, on the effective date of such termination, terminate with respect
to all future rights and obligations of performancehereunderby the Parties (except for the rights and
obligations herein that expressly are to survive such termination hereof). Termination of this
StadiumLeaseshall not alter the then existing claims, if any, of either Party for breachesof this
StadiumLease occurring prior to such termination and the obligations of the Parties hereto with
respect thereto shall survive termination.
Section 18.14 Waiver of Liens. Landlord does hereby waive, release and discharge all
Liens and rights (constitutional, statutory, consequential or otherwise) that Landlordmaynow
hereafter haveon any Property of Tenantof any kind, and all additions, accessionsand substitutions
thereto (except for judgmentliens whichmayhereafter arise in favor of Landlord). This Section
18.14 shall be self-operative and no further instrumentor waiverneedbe required by any lien holder
on such Property. In confirmation of such waiver, however,Landlordshall, at Tenant’s request,
execute promptlyany appropriate certificate or instrument that Tenant mayreasonably request.
Tenant does hereby waive, release and discharge all Liens that Tenant may have under
Section 91.004 of the Texas Property Code, as amended.
Section 18.15 Consumer Rights. THE PARTIES AGREE THAT THE TEXAS
DECEPTIVE TRADE PRACTICES - CONSUMERPROTECTIONACT, SECTION 17.41 ET
SEQ., BUSINESS & COMMERCE
CODE DOES NOT APPLY TO EITHER LANDLORDOR
TENANTSINCE NEITHER QUALIFIES AS A "CONSUMER"UNDERSECTION 17.45(4)
THEREOF.
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Section 18.16 CourtProceedings. Subject to the agreement of the Parties contained in
this StadiumLeaseregardingarbitration and other alternative proceduresfor dispute resolution, any
suit, action or proceedingagainst any Party arising out of or relating to this StadiumLeaseor any
transaction contemplatedhereby or any judgmententered by any court in respect thereof maybe
brought in any federal or state court located in the City of Houston,Texas, and each Party hereby
submits to the nonexclusivejurisdiction of such courts for the purposeof any such suit, action or
proceeding.To the extent that service of process by mail is permitted by applicable law, each Party
irrevocably consents to the service of process in any such suit, action or proceedingin such courts
by the mailingof such process by registered or certified mail, postage prepaid, at its address for
notice providedfor herein. EachParty irrevocablyagrees not to assert any objection that it mayever
haveto the laying of venueof any suchsuit, action or proceedingin any federal or state court located
in the City of Houston,Texas, and any claim that any such suit, action or proceedingbroughtin any
such court has been brought in an inconvenient forum. EachParty agrees not to bring any action,
suit or proceedingagainst the other Party arising out of or relating to this StadiumLease or any
transaction contemplatedhereby except in a federal or state court located in the City of Houston,
Texas.
Section 18.17 Attorneys’Fees. Ifany Party places the enforcement ofthis StadiumLease,
or any part thereof, including Section 2.4, or the exercise of any other remedyherein providedfor
such default, including Section 2.4, in the hands of an attorney whoinstitutes an Action or
Proceedinguponthe same(either by direct action or counterclaim), the non-prevailingParty shall
pay to the prevailingParty its reasonableattorneys’ fees and costs related thereto. In addition to the
foregoingawardof attorneys’ fees to the prevailingParty, the prevailingParty shall be entitled to its
attorneys’ fees incurred in any post-judgmentproceedingto collect or enforce the judgment.This
provision is separate and several and shall survive the expiration or earlier termination of this
StadiumLease or the mergerof this StadiumLease into any judgmenton such instrument.
ARTICLE 19
SURRENDER OF POSSESSION~ HOLDING OVER
Section 19.1 Surrender of Possession. Tenant shall, on the Lease Expiration Date,
peaceablyand quietly leave, surrender and yield up to Landlord(i) the LeasedPremises, free
subtenanciesand, as to Tenant’sFacilities, in a reasonablyclean conditionand free of debris, (ii) the
Landlord’sFF&E
in Tenant’spossession installed, affixed, attached or supplied by Landlordpursuant
to the Project Agreementor any Landlord’s FF&Ein Tenant’s possession paid for by Landlord or
paid for out of the Capital Repair ReserveFundor the Insurance Fundand all replacementsof and
substitutions therefor and (iii) all keys for the LeasedPremisesin Tenant’s possession. Uponsuch
LeaseExpirationDate, Tenantshall assign, withoutwarrantyor recourse, to Landlordall of its right,
title and interest in and to any EnforceableContracts, subject to Tenant’srights with respect to any
claims pendingthereunder.
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Section 19.2 Removal of Personalty.
19.2.1 Tenant’sObligationto Remove.All of Tenant’s trade fixtures, appliances,
furniture, equipment(including kitchen, concession, exercise and field maintenanceequipment),
furnishings, and other personal Property that is not part of the LeasedPremises (as providedin
Section 11.1.1) shall be removedby Tenantwithin sixty (60) days after the Lease Expiration Date,
provided that Tenant shall promptly repair any damageto the Leased Premises caused by such
removal.
19.2.2 Landlord’s Right to Remove.Anyof Tenant’s trade fixtures, appliances,
furniture, equipment,furnishings or other personal Property whichremainsin the LeasedPremises
sixty (60) days after the LeaseExpiration Date may,at the option of Landlord,be deemedto have
been abandonedby Tenantand mayeither be retained by Landlordas its Property or be disposedof,
without accountability, in such manner as Landlord maydetermine necessary, desirable or
appropriate, and Tenant, upondemand,shall pay the cost of such disposal, together with interest
thereon at the Interest Rate from the date such costs were incurred until reimbursedby Tenant,
together with reasonableattorneys’ fees, chargesand costs.
Section 19.3 Holdim, Over. In the case of any holding over or possession by Tenant
after the Lease Expiration Date without the consent of Landlord, Tenant shall makepaymentsto
Landlordof $60,000.00per month( "Hold-OverPayment").Further, in the event Tenant shall hold
over beyondany date for surrender of the LeasedPremises set forth in Landlord’swritten demand
for possessionthereof, Tenantshall reimburseLandlordfor all actual reasonableexpensesand loss es
(but not any indirect damageswhich are excluded pursuant to Section 18.9 hereof) incurred by
Landlord by reason of Landlord’s inability to deliver possession of the Leased Premises to a
successor tenant, together with interest on such expenses at the Interest Rate from the date such
expensesare incurred until reimbursedby Tenant, together with Landlord’s reasonable attorneys’
fees, charges and costs. Theacceptance of Hold-OverPaymentsunder this Section 19.3 by Landlord
shall not constitute an extension of the term of this StadiumLease or afford Tenantany right to
possession of the Leased Premises beyondany date through which such Hold-OverPaymentshave
been paid by Tenant and accepted by Landlord. Such Hold-OverPaymentsshall be due to Landlord
for the period of such holdingover, whetheror not Landlordis seekingto evict Tenant;and, unless
Landlordotherwise then agrees in writing, such holding over shall be, and shall be deemedand
construedto be, withoutthe cons ent of Landlord,whetheror not Landlordhas accepted any sumdue
pursuant to this Section 19.3.
Section 19.4 Survival. The provisions contained in this Article 19 shall survive the
expiration or earlier termination of this StadiumLease.
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ARTICLE 20
DISPUTE RESOLUTION
Section 20.1 Settlement By Mutual Agreement. In the event any dispute, controversy
or claim betweenthe Parties arises under this StadiumLeaseor is connectedwith or related in any
wayto this StadiumLeaseor any right, duty or obligation arising herefromor the relationship of the
Parties hereunder (a "Dispute or Controversy"), including, but not limited to, a Dispute or
Controversyrelating to the effectiveness, validity, interpretation, implementation,termination,
cancellation or enforcementof this StadiumLease, the Parties shall first attempt in goodfaith to
settle and resolve such Dispute or Controversyby mutual agreementin accordancewith the terms
of this Section 20.1. In the event a Disputeor Controversyarises, either Party shall havethe right
to notify the other that it has elected to implementthe proceduresset forth in this Section 20.1.
Within fifteen (15) days after delivery of any such notice by one Party to the Other regarding
Dispute or Controversy, the Landlord Representative and Tenant Representative shall meet at a
mutuallyagreed time and place to attempt, with diligence and goodfaith, to resolve and settle such
Dispute or Controversy. Shoulda mutual resolution and settlement not be obtained at the meeting
of the Landlord Representative and Tenant Representative for such purpose or should no such
meetingtake place within such fifteen (15) day period, then either Party mayby notice to the other
Party submitthe Dispute or Controversyto arbitration in accordancewith the provisions of Section
20.2 and AppendixF. Uponthe receipt of notice of referral to arbitration hereunder, the receiving
Party shall be compelledto arbitrate the Disputeor Controversyin accordancewith the terms of this
Article 20 and AppendixF without regard to the justiciable character or executory nature of such
Dispute or Controversy.
Section 20.2 Arbitration. Each Party hereby agrees that any Dispute or Controversy
which is not resolved pursuant to the provisions of Section 20.1 shall be submitted to binding
arbitration hereunderand if submittedshall be resolvedexclusively and finally throughsuch binding
arbitration in accordancewith the Arbitration Procedures; provided, however,that no decision or
ruling of an arbitration shall imposea requirementfor a Party to give notice or a cure period where
no such requirement or cure period is established by this Stadium Lease. This Article 20 and
AppendixF constitute a written agreementby the Parties to submit to arbitration any Dispute or
Controversyarising after the Effective Date within the meaningof Section 171.001 of the Texas
Civil Practice and RemediesCode. In the event any Action or Proceedingis pendingthat involves
a Disputeor ControversyunderwhichTenantclaims it has a right to offset, reduceOr fail to pay any
GuaranteedPayment,Tenantshall not exercise such claimed right to offset, reduce or fail to pay
such GuaranteedPaymentuntil such Action or Proceedingis conductedand then only in accordance
with the result of such Action or Proceeding.
Section 20.3 EmergencyRelief. Notwithstanding any provision of this Stadium Lease
to the contrary, any Party mayseek injunctive relief or other formof ancillary relief at any time from
any court of competent jurisdiction in Harris County, Texas. In the event that a Dispute or
Controversy requires emergencyrelief before the matter maybe resolved under the Arbitration
Procedures, notwithstanding the fact that any court of competentjurisdiction mayenter an order
providing for injunctive or other form of ancillary relief, the Parties expressly agree that the
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Arbitration Procedureswill still govern the ultimate resolution of that portion of the Dispute or
Controversynot resolved pursuant to said court order.
Section 20.4 BondInsurer. During the BondInsurance Period, the BondInsurer shall
have the right to (i) be present at and observe any Regular Arbitration proceeding or Fast-Track
Arbitrationproceedingand (ii) receive copiesof all materialsdeliveredto the Parties as part of such
Regular Arbitration proceeding or Fast-Track Arbitration proceeding. Notwithstanding the
foregoing, nothingcontained in this Section 20.4 or in the Principal Project Documents
is intended
to allowthe BondInsurer to participate in or be party to any RegularArbitration proceedingor FastTrack Arbitration proceeding.
ARTICLE 21
TIME~ DELAY~ APPROVALS AND CONSENTS
Section 21.1 Time. Times set forth in this Stadium Lease for the performance of
obligations shall be strictly construed, time being of the essencein such instrument. All provisions
in this Stadium Lease which specify or provide a methodto computea numberof days for the
performance, delivery, completion or observance by a Party hereto of any action, covenant,
agreement,obligation or notice hereundershall meanand refer to calendar days, unless otherwise
expressly provided. However,in the event the date specified or computedunder this StadiumLease
for the performance, delivery, completionor observanceof a covenant, agreement, obligation or
notice by either Party hereto, or for the occurrence of any event providedfor herein, shall be a
Saturday, Sundayor Legal Holiday, then the date for such performance, delivery, completion,
observanceor occurrenceshall automaticallybe extendedto the next calendar day that is a Business
Day.
Section 21.2 Delays and Effect of Delays.
21.2.1 ExcusableTenantDelay. Anydeadline or obligation (otherthan payment
of the GuaranteedPayment)imposedon Tenant pursuant to this StadiumLease shall be adjusted as
appropriate to reflect the delay in the achievementthereof by the appropriate ExcusableTenant
Delay Period resulting from each occurrence of Excusable Tenant Delay, but only to the extent
Tenant complies with its obligations under Section 21.2.3 with respect to such ExcusableTenant
Delay.
21.2.2 Excusable Landlord Delay. Any deadline or obligation imposed on
Landlordpursuant to this StadiumLease shall be adjusted as appropriate to reflect the delay in
achievement thereof by the appropriate Excusable Landlord Delay Period resulting from each
occurrence of Excusable Landlord Delay, but only to the extent Landlord complies with its
obligations under Section 21.2.3 with respect to such ExcusableLandlord Delay.
21.2.3 Continued Performance/Mitigation/Exceptions. upon the occurrence
of any Tenant Delay or LandlordDelay, the Parties shall endeavor to continue to perform their
obligations under this StadiumLease so far as reasonablypracticable. Towardthat end, the Parties
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hereby agree that they shall makeall reasonable efforts to prevent and reduce to a minimum
and
mitigate the effect of the event or circumstancegiving rise to any Tenant Delayor LandlordDelay
and they shall use their best efforts to ensure resumptionof performanceof their obligations under
this StadiumLease after the occurrence of the event or circumstancegiving rise to any Excusable
Tenant Delay or Excusable Landlord Delay. The Parties shall use and continue to use all
commercially reasonable endeavors to prevent, avoid, overcomeand minimize any Tenant Delay
or LandlordDelay.Nothingherein shall obligate either Party to mitigate the effect of the event or
circumstanceif any action so required wouldbe in violation of any GovernmentalRule.
Section 21.3 Approvals and Consents; Standards for Review.
21.3.1 Reviewand Approvalor ConsentRights. The provisions of this Section
21.3 shall be applicable with respect to all instances in whichit is providedunder this StadiumLease
that Landlordor Tenant exercises Reviewand Approvalor ConsentRights. As used herein, the term
"Reviewand Approvalor ConsentRights" shall include all instances in which one Party (the
"Submitting
Party") is permitted or required to submitto the other Party or to the representative
of that other Party any document,notice or determinationof the SubmittingParty and with respect
to whichthe other Party or its representative (the "ReviewingParty") has a right or duty hereunder
to review, comment,consent, approve, disapprove, dispute or challenge the submission or
determination of the Submitting Party. Unless this StadiumLease specifically provides that the
Reviewand Approvalor ConsentRights maybe exercised in the sole and absolute discretion (or
similar standard) of the ReviewingParty, in connectionwith exercising its Reviewand Approvalor
Consent Rights under any provision of this StadiumLease or of the StadiumTri-Party Agreement
and whetheror not specifically providedin any such provision, the ReviewingParty covenantsand
agrees to act in goodfaith, with due diligence, and in a commerciallyreasonablemannerwith regard
to each and all of such Reviewand Approvalor ConsentRights and, unless otherwise provided for
elsewhereherein, to not unreasonablywithhold,condition or delay its approvalof or consentto any
submission.
21.3.2 NoImplied Approvalor Consent. Wheneverused in this Stadium Lease,
"approval," "approve," "approved," "consent" or "consented" shall not include any implied or
imputedapproval or consent.
ARTICLE 22
MISCELLANEOUS PROVISIONS
Section 22.1 No Broker’s Fees or Commissions. Each Party hereby represents to the
other Party that such Party has not created any liability for any broker’s fee, broker’s or agent’s
commission,finder’s fee or other fee or commissionin connectionwith this StadiumLease.
Section 22.2 CovenantsRunningwith the Estates in Land. The Parties covenant and
agree that all of the conditions, covenants,restrictions, exclusives, agreements,rights, privileges,
obligations, duties, specifications and recitals containedin this StadiumLease, except as otherwise
expressly stated herein, shall be construedas covenantsrunningwith title to the LeasedPremisesand
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the LeaseholdEstate hereunder,respectively, whichshall extendto, inure to the benefit of and bind,
Landlord and Tenant, and their permitted successors and assigns, to the sameextent as if such
successors and assigns were namedas original parties to this StadiumLease, such that this Stadium
Lease shall always bind the ownerand holder of any fee or leasehold interest in or to the Leased
Premises, or any portion thereof, and shall bind predecessorsthereof except as otherwiseexpressly
provided herein.
Section 22.3 Relationship of the Parties. The relationship of Tenant and Landlord
under this StadiumLease is that of independentparties, each acting in its ownbest interests and
notwithstandinganything in this StadiumLease or any of the other Principal Project Documents
to
the contrary, no partnership, joint venture or other business relationship is established or intended
hereby between Tenant and Landlord.
Section 22.4 Representations of Landlord and Tenant.
22.4.1 Powerand Authority. Each individual executing and delivering this
StadiumLeaseon behalf of a Party herebyrepresents to the other Party that such individual has all
requisite powerand authority to execute and deliver the sameand to bind such Party hereunder.
22.4.2 Tenant’sRepresentations.As an inducementto Landlord to enter into this
StadiumLease, Tenant hereby represents and warrants to Landlord, as of the Effective Date, as
follows:
(a)
Tenant is a Texasnot-for-profit corporation, duly organized and
validly existing under the laws of the State of Texas,with all necessarypowerand authority
to enter into this StadiumLease and to consummate
the transactions herein contemplated.
Tenantis qualified to do business in Texas.
(b) Neither the execution and delivery of this StadiumLease by Tenant
nor the performanceby Tenant of its obligations hereunderwill (i) violate any statute,
regulation, rule, judgment,order, decree, stipulation, injunction, charge,or other restriction
of any Governmental
Authority, or court to whichTenantis subject or any provision of the
articles of incorporationor by-lawsof Tenantor (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify,or cancel, or require any notice under any contract, lease,
sublease, license, sublicense, franchise, permit, indenture, agreementor mortgagefor
borrowedmoney,instrument of indebtedness, security interest, or other agreementto which
Tenantis a party or by whichTenant or its assets are bound.
(c)
All proceedings required to be taken by or on behalf of Tenant
authorize Tenant to execute and deliver this StadiumLease and to performthe covenants,
obligations and agreementsof Tenant hereunder have been duly taken. Noconsent to the
execution and delivery of this StadiumLeaseby Tenantor the performanceby Tenant of its
covenants, obligations and agreementshereunder is required from any partner, board of
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directors, shareholder, creditor, investor, judicial, legislative or administrative body,
Governmental
Authority or other Person, other than any such consent whichalready has been
given.
(d)
This Stadium Lease constitutes the valid and legally binding
obligation of Tenant, enforceablein accordancewith its terms and conditions, except as such
enforcementmaybe limited by bankruptcy,ins olvency, reorganization, moratoriumor other
similar laws presently or hereafter in effect, affecting the enforcementof creditors’ rights
generally and by general principles of equity whetherapplied in a proceedingat law or in
equity.
(e)
To the best knowledgeof Tenant, there is no action, suit, claim,
proceedingor investigation pendingor currently threatened against Tenantthat questions the
validity of this StadiumLeaseor the transactions contemplatedherein or that could either
individually or in the aggregate have a material adverse effect on the assets, conditions,
affairs or prospects of Tenant, financially or otherwise.
22.4.3 Landlord’sRepresentations.As an inducementtoTenant to enter into this
StadiumLease, Landlordrepresents and warrants to Tenant, as of the Effective Date, as follows:
(a) Landlord is a local governmentcorporation duly formedand validly
existing under Subchapter D, Texas Transportation Corporation Act, TEX.TRANSP.
CODE
ANN.§ 431.101, et seq. and TEX. LOC.GOV’TCODE
ANN.§ 394.001,et seq., with all
necessary powerand authority to enter into this Stadium Lease and to consummatethe
transactions herein contemplated.
(b) Neither the execution and delivery of this Stadium Lease
Landlordnor the performanceby Landlordof its obligations hereunderwill (i) violate any
statute, regulation, rule, judgment,order, decree, stipulation, injunction, chargeor other
restriction of any GovernmentalAuthority or court to whichLandlord is subject, or any
provision of the articles of incorporationor bylawsof Landlordor (ii) conflict with, result
in a breachof, constitute a default under,result in the accelerationof, create in anyparty the
right to accelerate, terminate, modifyor cancel, or require any notice under any contract,
lease, sublease, license, sublicense, franchise, permit, indenture, agreementor mortgagefor
borrowedmoney,instrument of indebtedness, security interest or other agreementto which
Landlordis a party or by whichLandlordor its assets are bound.
(c)
All proceedingsrequired to be taken by or on behalf of Landlord
authorize Landlordto execute and deliver this StadiumLeaseand to performthe covenants,
obligations and agreementsof Landlordhereunder have been duly taken. Noconsent to the
execution and delivery of this StadiumLease by Landlordor the performanceby Landlord
of its covenants, obligations and agreementshereunderis required from any partner, board
of directors, shareholder, creditor, investor, judicial, legislative or administrative body,
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Governmental
Authority or other Person, other than any such cons ent whichalready has been
given.
(d)
This Stadium Lease constitutes the valid and’ legally binding
obligation of Landlord, enforceable in accordancewith its terms and conditions, except as
such enforcementmaybe limited by bankruptcy, insolvency, reorganization, moratoriumor
other similar laws presently or hereafter in effect, affecting the enforcementof creditors’
rights generally and by general principles of equity whetherapplied in a proceedingat law
or in equity.
(e) To the best knowledgeof Landlord, there is no action, suit, claim,
proceedingor investigation pendingor currently threatened against Landlordthat questions
the validity of this StadiumLeaseor the transactions contemplatedherein or that could either
individually or in the aggregate have a material adverse effect on the assets, conditions,
affairs, or prospects of Landlordfinancially or otherwise.
(f)
A true, correct and complete copy of the Prime Lease, and any
amendmentsor supplementsthereto, has been delivered by Landlord to Tenant. The Prime
Leaseis valid and enforceableaccordingto its terms, is currently in full force and effect, and
has not been modified either orally or in writing except as specified in such documents
delivered to Tenant. To the best knowledgeof Landlord, neither Landlord nor the County
is in default under any terms of the PrimeLease, nor has any event occurredwhich,with the
passage of time (after notice, if any, required by the PrimeLease), wouldbecomean event
of default under the PrimeLease.
(g) There are no currently existing leases, licenses, contracts,
agreements or other documents affecting the Astrodomain Complexor any Additional
Parking Land ownedor leased by Landlord, the County or a County Affiliate as of the
Effective Date, or any portion thereof, whichgrant to any other tenant, licensee or user of
the AstrodomainComplexand such Additional Parking Land, or any portion thereof, any
right that is inconsistent with, or conflicts in any mannerwith, any of the rights granted to
Tenantunder this StadiumLeaseor any of the other Principal Project Documents,except the
Permitted Encumbrances.
Section 22.5
Waiverof Immunity.Eachof the Parties unconditionally and irrevocably:
(a)
Agreesthat the execution, delivery and performanceby it of this
StadiumLease constitute private, proprietary and commercialacts rather than public or
governmentalacts;
(b) Agrees that should any Actions or Proceedings be brought against
it or its assets in relation to this StadiumLeaseor any transaction contemplatedhereunder,
no immunity(sovereign or otherwise) from such Actions or Proceedings (which shall
deemedto include suit, attachment prior to judgment, other attachment, the obtaining of
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judgment,executionor other enforcement)shall be claimedby or on behalf of itself or with
respect to its assets;
(c)
Waivesany such right of immunity(sovereign or otherwise) which
it or its assets nowhas or mayacquire in the future; and
(d)
Consents to the enforcement of any arbitral award or judgment
against it in any suchproceedingsand to the giving of any relief or the issue of any process
in connection with any such proceedings.
Section 22.6 Non-Mergerof Estates. The interests of Landlord and Tenant in the
Leased Premises shall at all times be separate and apart, and shall in no event be merged,
notwithstanding the fact that this StadiumLease or the LeaseholdEstate created hereby, or any
interest therein, maybe held directly or indirectly by or for the accountof the samePersonwhoshall
ownthe fee title to the LeasedPremisesor any portion thereof; and no such mergerof estates shall
occur by operation of law, or otherwise, unless and until all Personsat the time havingany interest
in the LeasedPremises, including any Facility Mortgagee,shall join in the execution of a written
instrument effecting such mergerof estates.
Section 22.7 Notices. Subject to Section 18.16, all notices, consents, directions,
approvals, instructions, requests and other communicationsgiven to a Party under this Stadium
Leaseshall be given in writing to such Party at the address set forth in AppendixDto this Stadium
Leaseor at such other address as such Party shall designate by written notice to the other Party to
this StadiumLeaseand maybe (i) sent by registered or certified U.S. Mail, return receipt requested,
(ii) delivered personally (including delivery by private courier services) or (iii) sent by telecopy
(with confirmationof such notice) to the Party entitled thereto. Suchnotices shall be deemedto
duly given or made(i) three (3) BusinessDaysafter if mailedas provided, (ii) whendelivered
hand unless such day is not a BusinessDay, in whichcase such delivery shall be deemedto be made
as of the next succeedingBusinessDayor (iii) in the case of telecopy (with confirmationof such
notice), whensent, so long as it wasreceived during normalBusinessHoursof the receiving Party
on a BusinessDayand otherwise such delivery shall be deemedto be madeas of the next succeeding
BusinessDay. EachParty hereto shall have the right at any time and from time to time to specify
additional parties ("Additional Addressees") to whomnotice hereunder must be given,
delivering to the other Party five (5) days notice thereof setting forth a single address for eachsuch
AdditionalAddressee;provided, however,that no Party hereto shall havethe right to designate more
than two (2) such Additional Addressees.
22.7.1 BondInsurer. During the BondInsurance Period, if any Party delivers any
notice required under Article 18 or Article 20, such Party shall also contemporaneously
deliver a
copy of such notice to the BondInsurer at 113 KingStreet, Armonk,NewYork10504, Attention:
Insured Portfolio Management
- PF, Facsimile Number:(914) 765-3799. The BondInsurer shall
have the right at any time and from time to time to changesuch address for notice by giving all
Parties at least five (5) days prior written notice of such changeof address.
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Section 22.8 Severability. If any term or provision of this Stadium Lease, or the
application thereof to any Personor circumstances,shall to any extent be invalid or unenforceable
in any jurisdiction, as to such jurisdiction, the remainderof this StadiumLease, or the application
of such term or provision to the Persons or circumstancesother than those as to whichsuch term or
provision is heldinvalidor unenforceablein such jurisdiction, shall not be affected thereby, and each
term and provision of this StadiumLease shall be valid and enforceable to the fullest extent
permittedby applicable law and any such invalidity or unenforceabilityin any jurisdiction shall not
invalidate or render unenforceablesuch provision in any other jurisdiction. To the extent permitted
by applicable law, the Parties to this StadiumLeaseherebywaiveany provision of law that renders
any provision thereof prohibited or unenforceablein any respect.
Section 22.9 Entire A~reement, Amendment
and Waiver. Except for the Interlocal
Agreement
(the latter being limited to the relationship betweenthe Sports Authorityand Landlord)
and the ParkingLetter, each of whichshall survive the executionand delivery of this StadiumLease
in accordancewith the termsthereof, this StadiumLease, together with the other applicable Principal
Project Documents,constitutes the entire agreementof the Parties hereto and thereto with respect
to the subject matter hereof and supersedesall prior written and oral agreementsand understandings
with respect to such subject matter, including the Existing Letter Agreement.Neither this Stadium
Leasenor any of the terms hereof, including this Section 22.9, maynot be amended,supplemented,
waivedor modifiedorally, but only (i) by an instrumentin writing signed by the Party against which
the enforcementof the amendment,supplement, waiver or modification shall be sought, and (ii)
with the written consent of BondInsurer, if such amendment,supplement, waiver or modification
is madeor given during the BondInsurance Period and (w) impairs in any material respect the
obligation of Tenant to make the Guaranteed Payments on the Guaranteed Payment Dates,
(x) modifies any rights of either of the Parties to terminate this StadiumLease beyondwhat
expressly providedin this StadiumLease, (y) modifiesany rights of BondInsurer or any obligations
to BondInsurer expressly providedin this StadiumLease, or (z) without limiting clauses (w),
and (y), amends, supplements, waives or modifies any provision of this Stadium Lease or any
defined terms used in or relating to such provisions other than Sections 1.3 or 1.4, Sections 2.1.2,
2.1.3, 2.5 or 2.6, Section4.2, .Section4.4 (exceptfor the first sentencethereof), Sections5.1,5.2, 5.3
5.5 or 5.6, Sections6.1.1,6.1.2, 6.1.3, 6.1.4, 6.1.5, 6.1.6, 6.2.2, 6.3 or 6.7, Article 7, Sections11.1.2
or 11.2, Article 12, Section14.8., Section15.4 (except for the last sentencethereof), Section18.4.1,
Article 19, Section 21.3, Sections 22.1, 22.3, 22.7 (but not 22.7.1), 22.14, 22.18, 22.19, or 22.20,
AppendixC, AppendixD, Exhibits A-3, A-4, A-7, A-8, A-9, A-10, A-11, A-12, A-13 or A-14,
Exhibits C-1 or C-2, Exhibit E or any defined terms or rules of usage used in or relating to such
provisions, Appendicesor Exhibits, which provisions maybe amended,supplemented, waived or
modifiedwithoutBondInsurer’s consent. Withrespect toany consent required under the preceding
clause (z), the BondInsurer agrees not to unreasonablywithholdits consent.
Section 22.10 Incorporation of Appendices and Exhibits. All Appendices and
Exhibits attached to this StadiumLeaseare incorporatedherein by this reference in their entirety and
madea part hereof for all purposes.
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Section 22.11 Table of Contents;Headings.The table of contents, if any, and headings,
if any, of the various articles, sections and other subdivisions of this StadiumLease are for
convenienceof reference only and shall not modify,define or limit any of the terms or provisions
hereof.
Section 22.12 Parties in Interest; Limitation on Rights of Others. The terms of this
StadiumLease shall be binding upon, and inure to the benefit of, the Parties and their permitted
successors and assigns. Nothing in this Stadium Lease, whether express or implied, shall be
construedto give any Person(other than the Parties and their permitted successors and assigns and
as expresslyprovidedherein) any legal or equitable right, remedyor claimunderor in respect of this
Stadium Lease or any covenants, conditions or provisions contained herein or any standing or
authority to enforce the terms and provisions of this StadiumLease. Notwithstandingthe foregoing,
the Countyshall be entitled to enforce the obligations of Tenantunder this StadiumLease in the
event a Tenant Default occurs and remains uncured and, during the BondInsurance Period, Bond
Insurer mayexercise its rights and enforce its rights and any obligations to BondInsurer expressly
providedin this StadiumLeaseand shall also be an express third-party beneficiary to exercise its
rights and to enforceits rights and obligations to BondInsurer expressly providedfor in this Stadium
Lease, including Section 22.9. The BondInsurer, during the BondInsurance Period, shall also be
an express third-party beneficiary with respect to Sections 10.1, 10.2, 10.3, 10.4, 10.5 and 10.6
entitled to enforcethe provisionstherein as if a party hereto.
Section 22.13 Methodand TiminRof Payment.All amounts required to be paid by any
Party to the other Party or Personunder this StadiumLeaseshall be paid in such freely transferable
currency of the United States as at the time of paymentshall be legal tender for the paymentof
public and private debts, by check or another methodof paymentacceptable to the payee delivered
to the addresseesset forth in Appendix
D or to such other addresseeslocated in the UnitedStates as
such payee mayspecify by notice to the other Party. If any paymentunder this StadiumLease is
required to be madeon a day other than a Business Day, the date of paymentshall be extended to
the next Business Day.
Section 22.14 Counterparts. This Stadium Lease may be executed by the Parties in
separate counterparts, each of whichwhenso executedand deliveredshall be an original, but all such
counterparts shall together constitute one and the sameStadiumLease. All signatures need not be
on the samecounterpart.
Section 22.15 Governing Law. THIS STADIUMLEASE, ANDTHE ACTIONSOF
THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS
(EXCLUDING PRINCIPLES OF CONFLICT OF LAWS).
Section 22.16 Interpretation and Reliance. No presumption will apply in favor of any
Party in the interpretation of this StadiumLeaseor any of the Principal Project Documents
or in the
resolution of any ambiguityof any provisions hereof or thereof.
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Section 22.17 Recording of Memorandum
of Lease. The Parties shall execute a
Memorandum
of Lease in the form attached hereto as Exhibit E attached hereto and Tenant mayfile
the samein the Official Public Recordsof Real Property of Harris County, Texas. Uponthe Lease
Expiration Date, Tenant shall execute such instruments reasonably requested by Landlord in
recordableform whichare sufficient to release of record any rights or interests of Tenantin and to
the LeaseholdEstate.
Section 22.18 Prohibited Use of Tenant’s Intellectual Property. Except as expressly
authorized in writing by Tenant, Landlordshall not use any trademark, service mark, logo, trade
name,copyrighted or copyrightable material, artwork or symbolsrelated to the foregoing or other
intellectual property whichis ownedfrom time to time by Tenant or any Affiliate of Tenant.
Section 22.19 NFLClub Lease. In the event of the termination of the NFLClub Lease
or in the event that the NFLClub, the Franchise or the Teamceases to conduct its normal and
anticipated events at the Stadiumprior to the expiration of the NFLClub Lease, Landlordshall
provide detailed information to Tenant explaining howLandlordintends to meet all Capital Repair
and Maintenanceobligations required by this StadiumLease. In addition, all references in this
StadiumLease to the NFLClub Leaseshall apply only so long as the NFLClubLeaseis in full force
andeffect.
Section 22.20 Prime Lease. Subject to the terms and conditions of the Rodeo
Recognition, Non-Disturbanceand AttornmentAgreement,this StadiumLease is and shall remain
subordinate to the PrimeLease.
Section 22.21 PrincipalProjectDocuments. ThisStadiumLeaseandthe other Principal
Project Documents
are mutuallyinterdependent and are meantto be read together, but in the event
of any inconsistency or conflict amongthis StadiumLease, the StadiumTri-Party Agreementand/or
any of the other Principal Project Documents,the terms of the StadiumTri-Party Agreementshall
control. NoPrincipal Project Documentmaybe modified or amendedin any respect, without the
prior written approval of Tenant and Landlord.
Section 22.22 Non-Relocation Covenant.
22.22.1 MajorEvents. Tenant covenants and agrees that itwill nothold any of the
following (each being a "Major Event") at a location other than the AstrodomainComplexduring
the Lease Term: (i) any Major Componentof the Spring Rodeoheld at the AstrodomainComplex
as of the Effective Dateor (ii) except to the extent there is not available at the Astrodomain
Complex
adequate, suitable space, any Major Componentof the RodeoFestival. Notwithstanding anything
in this Section22.22to the contrary, if, duringthe LeaseTerm,either (i) an UntenantableCondition,
(ii) a Casualty, not caused by the gross negligence of Tenantor the willful misconductof Tenant,
its agents, employees,or contractors, (iii) a Condemnation,
(iv) an event of Force Majeure,(v)
LandlordDefault or (vi) a LandlordFailure (whichhas not beenremediedafter Tenanthas initiated
commerciallyreasonable steps to exercise Tenant’s Self-Help Rights, to the extent practicable)
occurs, which Untenantable Condition, Casualty, Condemnation,event of Force Majeure, Landlord
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Default or LandlordFailure (as providedabove)prevents Tenantfrom utilizing the LeasedPremises
for any MajorEvent, then Tenantshall first attempt to re-Booksuch MajorEvent(s) at the Leased
Premisesto a date or dates satisfactory to Tenant and then be entitled to makearrangementsfor
alternate sites and Tenantshall be entitled to hold such MajorEvent(s) at such alternate sites but
only during the period of time that any such UntenantableCondition, Casualty, Condemnation,
event
of Force Majeure,LandlordDefault or LandlordFailure (as providedabove)shall exist and provided
that Tenantuses, subject to events of Force Majeure,commerciallyreasonableefforts to mitigate and
overcomesuch UntenantableCondition or other condition to the extent such is within the control
of Tenant. In no event shall the obligation to use commerciallyreasonable efforts to mitigate and
overcomesuch UntenantableConditionor other such condition (other than as set out abovein this
Section 22.22.1) require Tenantto performany obligation of Landlordunder the Principal Project
Documents.The limitation on MajorEvents provided for in this Section 22.22 shall not include
Major Events held outside the LeasedPremises due to a goodfaith dispute over the existence of
(i) an UntenantableCondition, (ii) a Casualtynot caused by the gross negligence of Tenantor
willful misconductof Tenant, its agents, employees,or contractors, (iii) a Condemnation,
(iv)
event of Force Majeure, (v) a Landlord Default or (vi) a Landlord Failure (which has not
remediedafter Tenant has initiated commerciallyreasonable steps to exercise Tenant’s Self-Help
Rights, to the extent practicable), which excuses Tenant from holding such Major Events at the
Leased Premises.
22.22.2
Injunction. Tenant (i) recognizes that the Stadium is being
constructed, certain taxes are being imposedby the Sports Authority and the Public Debt is being
incurred in order to construct the Stadiumas a homefor Major Events and NFLFootball Gamesheld
by the NFLClub and (ii) acknowledgesand agrees that monetarydamageswouldnot be sufficient
to compensateLandlordfor any breach by Tenant of the covenantsand agreementscontained in this
Section 22.22. As such, the Parties agree that (i) Landlordmayrestrain or enjoin any breach
threatened breach of any covenant, duty or obligation of Tenant contained in this Section 22.22
without the necessity of posting a bond or other security and without any further showingor
irreparable harm, balance of harms, consideration of the public interest or the inadequacyof
monetarydamagesas a remedy,(ii) the administration of an order for injunctive relief wouldnot
impractical and, in the event of any breach of any covenant, duty or obligation contained in this
Section 22.22, the balanceof hardships wouldweighin favor of entry of injunctive relief and (iii)
Landlordmayenforce any such covenant, duty or obligation of Tenant contained in this Section
22.22 through specific performancein the courts of the State of Texas.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS
WHEREOF,
this Stadium Lease has been executed by the Parties as of the Effective
Date.
HARRIS COUNTY SPORTS &
CONVENTION CORPORATION
.y
Michael
Chairman
Surface~
HOUSTON LIVESTOCK
AND RODEO, INC.
President
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SHOW
APPENDIX A
TO
STADIUM LEASE
DEFINITIONS
"501(c)(3) Entity" meansany organization whichis exemptfromtaxation under § 501 (c)(3)
of the Code.
"AcceptableBank"has the meaninggiven such term in the Stadium Tri-Party Agreement.
"Actionsor Proceedings"meansany lawsuit, proceeding, arbitration or other alternative
resolution process, GovernmentalAuthority investigation, hearing, audit, appeal, administrative
proceedingor judicial proceeding.
"AdditionalAddressees" is defined in Section 22.7.
"Additional LandlordWork"has the meaning given such term in the Stadium Tri-Party
Agreement.
"AdditionalParkingLand" means(i) all land currently ownedby the County within the
boundarycreated by MainStreet, MurworthDrive, Lantern Point and McNee
Street, (ii) all land not
currently ownedby the County within the boundary created by Main Street, MurworthDrive,
Lantern Point and McNeeStreet, all of whichland Landlordcurrently contemplatesit, the County
or a CountyAffiliate will acquire, but only to the extent so acquired and (iii) any land now
hereafter acquired or leased by Landlord,the Countyor a CountyAffiliate, in each instance for the
purposeof satisfying the parking requirementsof Landlordto Tenant under the Principal Project
Documentsor any other agreementbetweenLandlord, Tenant and the NFLClub, all of which land
shall be located within the boundarycurrently created by U.S. Interstate 610, Fannin Street, Old
Spanish Trail and MainStreet. Theidentity of the Additional Parking Landmaychangefrom time
to time so long as such land is located within the boundariesset out herein and the location of which
is reasonablyacceptable to Tenantand the NFLClub. All of the land described in clauses (i), (ii)
and (iii) aboveshall be improvedand used only for parking, except as providedin the StadiumTriParty Agreement.
"AdditionalPayments"is defined in Section 4.2.
"AdditionalStaffing" is defined in Section 6.1.2.2.
"Additional TenantWork"has the meaning given such term in the Stadium Tri-Party
Agreement.
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"AdmissionsTax" meansany Taxes imposedpursuant to Chapters 334 or 335 of the Texas
Local GovernmentCodeon any tickets sold as admission to any Event, Tenant Non-Eventor NFL
Club Tenant Non-Event.
"Advertising" has the meaninggiven such term in the Stadium Tri-Party Agreement.
"Affiliate" of any Personmeansany other Persondirectly or indirectly controlling, directly
or indirectly controlled by or under direct or indirect common
control with such Person. As used
in this definition, the term "control," "controlling" or "controlled by" meansthe possession,directly
or indirectly, of the powerto vote no less than thirty percent (30%)of the securities, interests
membershipshaving ordinary voting power for the election of directors (or other comparable
controlling body) of such Personand (ii) direct or cause the direction of the actions, management
or policies of such Person, whether through the ownershipof voting securities, interests or
memberships,by contract or otherwise, excluding in each case, any lender of such Person or any
affiliate of suchlender.
"ArbitrationProcedures"meansthose procedures set forth in ADpendixF
of this Stadium
Lease.
"Assignment and AssumptionAgreement"is defined in Section 15.3(d).
"Astroareana" means the arena building located on the ComplexGrounds as of the
Effective Dateadjacent to, and to the southeast of, the Astrohall, and any replacementbuilding or
facility thereto including any expansionof the Exposition Center.
"Astrodomain Complex"meansthe multi-purpose sports, entertainment and exhibition
complexlocated in Harris County, Texas on (i) the land depicted on Exhibit A-1 to this Stadium
Lease and the improvementsthereon, including the Astrodome,Astroarenaand the Exhibition Hall,
and which will include the Stadiumonce constructed (the "AstrodomainProper"), (ii) the Rodeo
Land,(iii) Landlord’sLandand (iv) all buildings, structures, parking areas and other improvements
nowor hereafter located on any portion of the land described in clauses (i), (ii) and (iii).
AstrodomainComplexdoes not include the Additional Parking Land.
"AstrodomainProper" is defined in the definition of AstrodomainComplex.
"Astrodome" means the domed stadium located at the Astrodomain Complex and
commonly
referred to by such name,and any replacementbuilding or facility thereto (but not the
Stadium).
"Astrohall" meansthe exhibition building located on the ComplexGrounds as of the
Effective Date adjacent to, and south of, the Astrodome.
"Astroworld’sParkin~Spaces" means(i) until August16, 2005 not morethan the number
of parking spaces on the Complex
Groundsto whichSix Flags, Inc. currently is entitled to use under
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Appendix A, Page 2
the AstroworldParking Sublease and (ii) after August16, 2005 no parking spaces on the Complex
Grounds.
"Astroworld Parking Sublease" meansthat certain Parking Area Sublease dated May16,
1975, betweenAstropark, Inc. and Astrodome-AstrohallStadiumCorporation, as amendedby that
certain First Amendment
to Parking Area Sublease dated November3, 1978, between Astropark,
Inc. and Astrodome-AstrohallStadiumCorporation, as assigned pursuant to that certain Assignment
of Lease dated November3, 1978, by and amongAstrodomainCorporation, AstroworldUSA,Inc.,
o Astrodome-AstrohallStadiumCorporation, Astropark, Inc. and Six Flags, Inc., andanyamendments
thereto or modifications thereof approvedby Tenant and the NFLClub.
"AverageParking Rate" is defined in Section 2.5.6.
"Audit" is defined in Section 4.4.
"BondInsurance Period" meansthe period of time during which (i) the BondInsurer has
any obligation or commitment
under any insurance policy covering any outstanding Public Debt of
the Sports Authority or (ii) any reimbursementobligation by the Sports Authority to the Bond
Insurer related to the Public Debtremainsunsatisfied.
"BondInsurer" means MBIA
Insurance Corporation, or any successor thereto, or other
insurer of the Sports Authority Revenue Bonds (as defined in the Funding Agreement)
Miscellaneous RevenueBonds(as defined in the Funding Agreement).
"Book" and other forms of that term when used in reference to an Event, a Tenant
Non-Eventor a NFLClub Tenant Non-Eventmeansthe condition when(i) a Landlord Event,
"Tenant Event" as defined in the NFLClub Lease, a Tenant Non-Eventor a NFLClub Tenant NonEvent has been scheduled on a particular date at the Leased Premises in accordance with the
applicable terms of the Principal Project Documents
and, to the extent they do not conflict with the
express rights granted to Tenantor the NFLClubunder the Principal Project Documents,Landlord’s
bookingpolicies, applied uniformly and non-discriminately to all Events, Tenant Non-Eventsand
NFLClub Tenant Non-Eventson a first-reserved basis and (ii) a Tenant Event or a Football Home
Gamehas been scheduled on a particular date at the Leased Premises in accordance with the
applicable terms of the Principal Project Documents.
"Brandin.o Ri.ohts" has the meaninggiven such term in the StadiumTri-Party Agreement.
"Business Center" has the meaninggiven such term in the StadiumTri-Party Agreement.
"Business Day"meansany day of the year that is not a Saturday, Sunday, Legal Holiday
or a day on which commercialbanks are not required or authorized to close in Houston,Texas.
"Business Hours" means 9:00 am. through 5:00 p.m. on Business Days.
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"CanceledEvent" is defined in Section 2.5.3.3.
"CapitalRepair"meansany work(including all labor, supplies, materials and equipment)
reasonablynecessaryto repair, restore, refurbish or replaceany equipment,facility, structure or other
componentof the LeasedPremises, if such workis necessitated by:
(1) Anydefects (whetherlatent or patent) in design, construction or installation
of the LeasedPremises by or on behalf of Landlord;
(2) Physical Obsolescence (including replacement necessitated by repeated
breakdown
of a component
of the LeasedPremisesdespite efforts to repair or restore it short
of such replacement); or
(3)
Modifications required by applicable GovernmentalRule.
The term "Capital Repair" shall not include (i) Maintenance,(ii) Casualty Repair Work,
(iii) Condemnation
Repair Workand (iv) the portion of any contract for the perfomaanceof any
the foregoingin clauses(i), (ii) and(iii) of this sentence.
"Capital Repair Expenses"means any reasonable, third party expenses incurred in
connection with Capital Repairs, whichmayinclude reasonable, actual overtime expensesincurred
by Landlord or the ComplexManagerfor Landlord’s or the ComplexManager’s employees in
connection with performinga Capital Repair.
"Capital Repair Reserve Account"means a separate depository account maintained by
Landlordat an AcceptableBankunder the terms of the StadiumTri-Party Agreementfor the purpose
of holding, applying, investing and transferring the Capital Repair Reserve Fund. The Capital
Repair ReserveAccountshall be separate from, and shall not be a part of, the VenueProject Fund
or any other fund or account.
"CapitalRepairReserveFund"meansthe segregated capital repair and replacement fund
held in the Capital Repair ReserveAccount.
"Casualty" meansany damage,destruction or other property casualty resulting from any
fire or any Force Majeureor other sudden, unexpectedor unusual cause. Casualty shall not include
any damage,destruction or other property casualty resulting from Landlord’sfailure to performits
Capital Repair or Maintenanceobligations.
"CasualtyExpenses" meansall costs and expenses required to be borne by Landlord or
Tenant, as the case maybe, pursuant to Article 13.
"CasualtyRepair Work"is defined in Section 13.1.
"Chute Club" meansthe area of the Stadiumdepicted on Exhibit A-1 1 hereto.
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"City" meansthe City of Houston,Harris County, Texas, a Texasmunicipalcorporation and
HomeRule City.
"Club Level" has the meaninggiven such term in the Stadium Tri-Party Agreement.
"Code" meansthe Intemal Revenue Code of 1986, as amended.
"Commencement
Date" is defined in Section 3.1.
"Commencement
Extension Option"is defined in Section 3.3.
"Commercial
Profit" meansthat the proceeds of the tickets or ConsumableConcessions,
as applicable, sold at a TenantIncidental Eventare not directly related to the general fund-raising
or charitable purpose of Tenant or the Affiliate controlled by Tenant for whomsuch Tenant
Incidental Eventis being held, as an organization described in §501(c) of the Code.
"ComparableFacilities" meansone or more stadiums in which NFLFootball Gamesare
playedand events (such as concerts, family shows,conventionsand other public events) are held that
(i) are comparablein size to the Stadium,(ii) havebeenconstructedwithin the time period extending
fromthe date that is five (5) years before the Commencement
Dateuntil the date that is five (5) years
after the Commencement
Date and (iii) are located in the United States. Notwithstanding the
foregoing,to the extent the subject matter of this StadiumLeaserelates to or is affected by whether
or not the Stadiumor comparablestadiumis air-conditioned, openair or has a retractable roof, the
term "ComparableFacilities" shall meanand refer to any such comparablestadium that is air
conditionedand has a retractable roof.
"ComplexGrounds" means (i) all of the parking lots, driveways, walkwaysand other
access ways,curbs, fences and other barriers, directional and informationalsignage, ticket booths,
parking lot lighting and light fixtures, landscapinglocated within the Astrodomain
Complex
and the
AdditionalParkingLandand (ii) all other appurtenantfixtures, structures and improvements
relating
to such items describe in the foregoingclause (i).
"ComplexGroundsBrandin~Rights" means the exclusive right to designate those
products,services and retail rights that maybe sold or deliveredon an exclusivebasis to, at or in the
ComplexGrounds(including the Highly Restricted Area) during Tenant Events, excluding Pourage
Rights.
"Complex
GroundsPourageRights" meansthe exclusive right to designate the exclusive
or non-exclusiveprovider of beveragebrands to, at or in the Complex
Grounds(including the Highly
Restricted Area) during Tenant Events.
"Complex Grounds Services" means vending machines, temporary telephones, long
distance service, automatic teller machines,shoe shine stands, novelty sales, commercialexhibit
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Appendix A, Page 5
booths, janitorial/waste services, temporaryequipment(i.e., portable generators and lighting),
decorating, fencing and utility access or connections(i.e., plumbingor electricity connectionsfor
exhibitor booths on the ComplexGrounds).
"ComplexGroundsService Rights" meansthe exclusive right to designate the exclusive
provider of the ComplexGroundsServices to, at or in the ComplexGrounds(including the Highly
Restricted Area) during Tenant Events.
"ComplexManager"has the meaninggiven such term in the StadiumTri-Party Agreement.
"Complimentary
ParkingPasses" is defined in Section 2.5.4.5.
"ConcessionOperations" meansthe exercise of all Concession Rights in the Concession
Rights Area.
"Concession Revenues" means all revenues generated or derived from the sale of
Concessions in the Concession Rights Area pursuant to the Concession Rights, less applicable
Impositions, expenses, fees and commissionspayable to the Concessionaires.
"ConcessionRights" means,collectively, the rights granted to Tenant under Article 7 to
license, sell, display, distribute, cater and store the Concessionsin the ConcessionRights Area
during Tenant Events.
"Concession Rights Area" means the areas within the Leased Premises designated in
Article 7 in which Tenant is granted the ConcessionRights.
"Concessionaires" meansany Person operating the Concession Operations.
"Concessions" means, collectively,
any and all Consumable Concessions and NonConsumableConcessions but excluding Pourage Rights and Branding Rights.
"Condemnation
Actions" meansa taking by any GovernmentalAuthority (or other Person
with powerof eminentdomain)by exercise of any right of eminentdomainor by appropriation and
an acquisition by any GovernmentalAuthority (or other Person with power of eminent domain)
througha private purchasein lieu thereof.
"Condemnation
Award"means all sums, amounts or other compensation for the Leased
Premisespayable to Landlord, Tenant or the NFLClub (as their interests mayappear in accordance
with the terms of this StadiumLease and the NFLClub Lease) as a result of or in connectionwith
any CondemnationAction.
"Condemnation
Expenses" is defined in Section 14.3.
"CondemnationRepair Work"is defined in Section 14.3.
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"ConsumableConcessions" means, collectively, the sale and service of food and nonalcoholic beverages, the sale and service of alcoholic beverages (subject to procurementof all
necessary licenses and permits required by any GovernmentalAuthority) and catering and banquet
sales and services (including, but not limited to, catering service with respect to any Suites or the
Club Level.
"Controlling
Person"of any Personmeansany individual that directly or indirectly controls
such Person. As used in this definition, the term "control" means(i) the possession, directly
indirectly, of the powerto vote no less than thirty percent (30%)of the securities, interests
membershipshaving ordinary voting power for the election of directors (or other comparable
controlling body) of such Personand (ii) direct or cause the direction of the actions, management
or policies of such Person, whether through the ownership of voting securities, interests or
memberships,by contract or otherwise, excluding in each case, any lender of such Person or any
Affiliate of such lender.
"Controlling Person Requirement"
is defined in Section 15.3(e).
"County"meansHarris County, Texas, a body corporate and politic under the laws of the
State of Texas.
"CountyAffiliate" meansany entity created by the Countyor Landlordin whichthe County
or Landlordhas the powerto appoint the board of directors or the legal authority to control the
actions of suchentity.
"CPI Fraction" means, as of any particular date called for under this StadiumLease, a
fraction, the denominatorof whichis the index value of the DesignatedIndex for the calendar month
in which the Commencement
Date occurs and the numerator of which is the index value of the
DesignatedIndex for the calendar monthwhichis two (2) full calendar monthsprior to the calendar
monthin whichsuch date specified under this StadiumLease occurs. If the CPI Fraction cannot be
determinedat any particular time becausethe index value of the DesignatedIndex for the specified
month(or the index period during whichsuch monthoccurs, if the index period is longer than one
month) is not then known,the CPI Fraction shall be determined using the then most recently
reported index value of the DesignatedIndex and, whenthe index value of the DesignatedIndex for
the specified month is known,the CPI Fraction and any calculation based thereon shall be
redeterminedusing the index value of the DesignatedIndex for the specified month(or the index
period during which such monthoccurs, if the index period is longer than one month).
"Delay Option" is defined in Section 3.2.
"Designated Index" means the United States Consumer Price Index for all Urban
Consumers (also known as the CPI-U) for the Houston Metropolitan Statistical
Area
=
(1982-1984 100), as published monthly(or if sameshall no longer be published monthly, on the
most frequent basis available) by the Bureauof LaborStatistics, U.S. Departmentof Labor(but
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such is subject to adjustmentlater, the later adjusted index, together with any correlation factor
necessaryto relate the later adjusted indexto the earlier index, as publishedby the entity publishing
the index, shall be used), or if such publication should be discontinued, the DesignatedIndex shall
then refer to such comparablestatistics on changesin the cost of living for urban consumersas the
samemaybe computedand published (on the most frequent basis available) by an agency of the
United States or by a responsible financial periodical of recognized authority, as selected in
accordance with the terms of the StadiumTri-Party Agreement.
"Director’s Club" meansthe entire upper press level area of the Stadium.
"Dispute or Controversy" is defined in Section 20.1.
"Effective Date" is defined in the first paragraphof this StadiumLease.
"Emergency"meansany circumstance in which Tenant or Landlord in good faith believes
that immediateaction is required in order to safeguardlives, property or the environment.
"Encumbrances"meansany defects in, easements, covenants, conditions or restrictions
affecting, or liens or other encumbrances
on, the title to the LeasedPremisesor otherwiseaffecting
Tenant’s rights hereunder, whetherevidencedby written instrument or otherwise evidenced.
"Enforceable Contracts" has the meaningassigned to such term in the StadiumTri-Party
Agreement.
"Environmental Event" means (i) the spill, discharge, leakage, pumpage, drainage,
pourage, interment, emission, emptying,injecting, escaping, dumping,disposing, migrationor other
release or any kind of HazardousMaterials whichcauses a threat or actual injury to humanhealth,
the environment,plant or animallife, (ii) the occurrenceof any Actionsor Proceedingspursuant
any EnvironmentalLawsarising out of any of the foregoingand (iii) any claims, demands,actions,
causes of actions, remedialand/or abatementresponse, remedialinvestigations, feasibility studies,
environmentalstudies, damages,judgmentsor settlements arising out of any of the foregoing.
"EnvironmentalLaws"meansany and all federal, state and local statutes, laws (including
commonlaw tort law, commonlaw nuisance law and commonlaw in general), regulations,
ordinances, rules, judgments,orders, decrees, permits, concessions, grants, franchises, licenses,
agreementsor other govemmental
restrictions relating to the environment,or to handling, storage,
emissions, discharges, releases or threatened emissions, discharges or releases of Hazardous
Materials into the environment,including ambient air, surface water, ground water or land, or
otherwise relating to the manufacture,processing, distribution, use, treatment or disposal of any
HazardousMaterials, including, but not limited to, the CleanAir Act, the CleanWaterAct, the Safe
Drinking Water Act, the Federal Solid WasteDisposal Act (including, but not limited to, the
Resource Conservation and RecoveryAct of 1976), the ComprehensiveEnvironmental Response,
Compensation
and Liability Act of 1980, the Toxic SubstancesControl Act, the HazardousMaterials
Transportation Act, the Federal Insecticide, Fungicide and Rodenticide Act and the Emergency
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Planningand Community
Right-to-Know
Act, and any other federal, state or local laws, ordinances,
rules, regulations and publications and similar restrictions nowor hereafter existing relating to any
of the foregoing.
"Event" meansany Tenant Event, Landlord Event or NFLClub Event, including amateur
or professional sporting events, exhibitions, tournaments, musical or theatrical performancesand
other forms of live or broadcastedentertainment, public ceremonies,conventionmeetings, markets,
fireworks displays, showsor other public or private exhibitions and activities related thereto, but
excluding Tenant Non-EventsandNFLClub Tenant Non-Eventsheld in the Leased Premises and/or
any buildings in the AstrodomainComplex.
"EventCleaning" is defined in Section 6.1.5.
"Event of Default" is defined in Section 18.1 and Section 18.2.
"EventStaffing" is defined in Section 6.1.2.1.
"Exclusivity AbatementRight" is defined in Section 2.4.
"Exclusivity TerminationRight" is defined in Section 2.4.
"ExcusableLandlordDelay" meansany Landlord Delay which is caused by or attributable
to (but only to the extent of) (i) ForceMajeure,(ii) failure of Tenantto perform(or delay by
in performing)any of its material obligations underthis StadiumLeasewithin the time or by the date
established by or pursuant hereunderfor performancethereof, (iii) negligenceor willful misconduct
by Tenant, (iv) any direct or indirect action or omissionby or attributable to Tenant(including,
not limited to, acts or omissions of any Person employedby Tenant or any agent, contractor or
subcontractor of Tenant) which unreasonablyand materially interferes with or delays Landlord’s
performanceof its obligations under this StadiumLease or (v) any unreasonable delay by Tenant
in approvingor consenting or in refusing to approveor consent to any matter that requires the
approval or consent of Tenant under this Stadium Lease unless permitted hereunder.
Notwithstandingthe foregoing, "Excusable Landlord Delay" shall not include economichardship
or inability to pay debts or other monetaryobligations in a timely manner.
"ExcusableLandlordDelay Period"meanswith respect to any particular occurrence of
Excusable Landlord Delay, that numberof days of delay in the performance by Landlord of its
obligations under this StadiumLease actually resulting from such occurrence of an Excusable
Landlord Delay.
"ExcusableTenantDelay" meansany Tenant Delay which is caused by or attributable to
(but only to the extent of) (i) Force Majeure, (ii) failure by Landlordto perform(or delay
Landlordin performing)any of its material obligations under this StadiumLeasewithin the time or
by the date established by or pursuantto this StadiumLeasefor performancethereof, (iii) negligence
or willful misconductby Landlord,(iv) any direct or indirect action or omissionby or attributable
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to Landlord(including, but not limited to acts or omissionsof any Person employedby Landlordor
ComplexManageror of any agent, contractor or subcontractor of Landlord or ComplexManager)
whichunreasonablyinterferes with or delays Tenant’s performanceof its obligations hereunderor
(v) any unreasonable delay by Landlord in approving or consenting or in refusing to approve
consent to any matter that requires the approval or consent of Landlordunder this StadiumLease.
Notwithstandingthe foregoing, "Excusable Tenant Delay" shall not include economichardship or
inability to pay debts or other monetaryobligations in a timely manner.
"ExcusableTenantDelay Period" means with respect to any particular occurrence of
Excusable Tenant Delay, that numberof days of delay in the performance by Tenant of its
obligations under this StadiumLeaseactually resulting from such occurrenceof an ExcusableTenant
Delay.
"Exhibition Hall" meansthe Astrohall or, following the completionof the construction of
the proposedHarris CountyExposition Center (regardless of the nameactually used therefor), such
Harris CountyExposition Center.
"Existing Letter Agreement"
meansthat certain Letter Agreementamongthe City, the
County, Tenant, the NFLClub, the Sports Authority and METRO,
dated October 19, 1998, as
assigned to Landlordby the Countypursuant to that certain Assignmentof Rights dated April 7,
1999, as amendedand extended pursuant to that certain Letter Agreement-Approvalof Budget
& Procedures-NFL/Rodeo
Stadium dated February 16, 2000, amongthe Parties, the NFLClub and
the Sports Authority.
"Existing Rodeo Lease" means the Original Rodeo Lease and the Rodeo Lease
Amendment,
collectively, as the samemaybe further amended,modified, supplemented, renewed
or extended from time to time not in conflict with the Principal Project Documents.
"Facility Mortgage"meansa Mortgagecovering and encumberingLandlord’s rights, titles
and interests in the LeasedPremises(but not the LeaseholdEstate) that secures a Project Financing
and no other debt and is otherwisepermitted by, and is madein accordancewith and subject to, the
provisions of the Principal Project Documents.
"Facility MortgageNon-DisturbanceAgreement"
is defined in Section 16.1.
"Facility_ Mortgagee"meansany holder, or trustee or agent for holders, of any component
of the Project Financingwhois the Mortgageenamedin any Mortgagethat is a Facility Mortgage,
the beneficiary namedin any deed of trust that is a Facility Mortgageor the holder of any lien or
security interest namedin any other security instrumentthat is a Facility Mortgage.
"Facility Use Tax" meansany Tax imposedpursuant to Chapters 334 or 335 of the Texas
Local GovernmentCodeon any memberof a Major League Teamthat plays a professional sports
gameor event in the Stadium,including any participant, competitor or performerof or in a Tenant
Event.
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"Fast-Track Arbitration" is defined in Section 1.2 of AppendixF.
"Fast-Track Arbitrator" is defined in Section 1.2 of AppendixF.
"Final Notice" is defined in Section 18.4.
"Final Plans" has the meaningassigned to such term in the Project Agreement.
"FinancialTest" is defined in Section 15.3(f).
"First Class Condition"means,subject to any express limitations to the contrary in the
Principal Project Documents,
the condition satisfying each of the following: (i) being in compliance
with all applicable Governmental
Rules, (ii) being in goodcondition and repair and (iii) meeting
exceedingthe standards of ComparableFacilities.
"Football HomeGames"meansany NFLFootball Gamein which the Teamacts as the host
team for its opponent.
"ForceMajeure"
meansthe occurrence of any of the following, for the period of time, if
any, that the performanceof a Party’s material obligations under this StadiumLease is actually,
materially and reasonably delayed or prevented thereby: acts of God;acts of a public enemy;the
confiscation or seizure by any GovernmentalAuthority; insurrections; wars or war-like action
(whetheractual, pendingor expected); arrests or other restraints of government
(civil or military);
blockades;embargoes;
strikes, labor unrest, labor disputes or unavailability of labor or materials(any
of whichare not causedby a Party’s or, in the case of Landlord,the Complex
Manager’sworkforce);
lock-outs (not caused or implementedby a Party or, in the case of Landlord,the Complex
Manager);
epidemics; landslides; lightning; earthquakes; fires; hurricanes; storms; floods; wash-outs;
explosions; any delays occasioned by arbitration actions and proceedings under the Arbitration
Procedures specified in this StadiumLease; civil disturbance or disobedience; riot; sabotage;
terrorism, threats of sabotageor terrorism; or any other cause, whetherof the kind herein enumerated
or otherwise,that is not withinthe reasonableanticipation or control of the Party claimingthe fight
to delay performanceon account of such occurrenceand which, in any event, is not a result of the
negligence or willful misconductof the Party claiming the right to delay performanceon account
of such occurrence. As to Landlord, actions of the Countyor any CountyAffiliate shall not be
considered actions of a GovernmentalAuthority for purposes of Force Majeure. Notwithstanding
the foregoing, "ForceMajcure" shall not include economichardship or inability to pay debts or other
monetaryobligations in a timely manner.
"FunctionalObsolescence"and "Functionally Obsolete" meansany equipment, fixture,
furnishing, facility, surface, structure or any other componentof the LeasedPremisesthat is not
dysfunctional(and thus not Physically Obsolete),but is no longer reasonablyoptimalfor its intended
purposes, by reason of (i) material innovations, inventions or improvementsin the design,
manufacture, operation or production of comparableequipment,systems or facilities whichrender
moreefficient, moresatisfactory or moretechnologically advancedservice or (ii) business patterns
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or practices (such as methodsfor selling tickets or admitting patrons to the LeasedPremises)that
require the modificationor addition of equipmentor facility.
"Fundin~Agreement"means that certain Funding Agreementdated as of the Effective
Date by and amongTenant, the NFLClub, Landlord and the Sports Authority, as the samemaybe
amended,supplemented,modified, renewedor extended from time to time in accordance with the
terms thereof.
"GAAP"
meansgenerally accepted accountingprinciples, applied on a consistent bas is, as
set forth in Opinionsof the AccountingPrinciples Board of the AmericanInstitute of Certified
Public Accountantsand/or in statements of the Financial AccountingStandards Boardand/or their
respective successors and whichare applicable in the circumstancesas of the date in question.
Accountingprinciples are applied on a "consistent basis" whenthe accountingprinciples observed
in a current period are comparablein all material respects to those accountingprinciples applied in
a precedingperiod.
"GovernmentalAuthority" meansany federal, state, local or foreign governmentalentity,
authority or agency, court, tribunal, regulatory commissionor other body, whetherlegislative,
judicial or executive(or a combinationor permutationthereof), and any arbitrator to whom
a dispute
has been presented under Governmental
Rule or by agreementof the Parties with an interest in such
dispute.
"GovernmentalRule" meansany statute, law, treaty, rule, code, ordinance, regulation,
permit, interpretation, certificate or order, whethernowor hereafter existing, of any Governmental
Authority, or any judgment,decision, decree, injunction, writ, order or like action of any court,
arbitrator or other GovernmentalAuthority, whethernowor hereafter existing.
"GuaranteedPayment"is defined in Section 4.1.1.
"GuaranteedPaymentDate"is defined in Section 4.1.2.1.
"Halo Suites" has the meaninggiven such term in the Stadium Tri-Party Agreement.
"HazardousMaterials" means(i) any substance, emission or material including, but not
limited to, asbestos, nowor hereafter defined as, listed as or specified in a Governmental
Ruleas a
"regulated substance," "hazardous substance," "toxic substance," "pesticide," "hazardous waste,"
"hazardousmaterial" or any similar or like classification or categorization under any Environmental
Lawincluding by reason of ignitability, corrosivity, reactivity, carcinogenicity or reproductiveor
other toxicity of any kind, (ii) any products or substances containing petroleum, asbestos
polychlorinated biphenyls or (iii) any substance, emissionor material determinedto be hazardous
or harmful.
"Highly Restricted Area"has the meaning given such term in the Stadium Tri-Party
Agreement.
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"Hold-OverPayment"is defined in Section 19.3.
"Impositions" meansall real estate Taxes, all personal property Taxesand all possessory
interest Taxes,all use and occupancyTaxes,all excises, assessmentsand levies, general and special,
ordinary and extraordinary, foreseen and unforeseen(including assessmentsfor public improvements
and betterment,and any masstransit, park, child care and art contributions, assessmentsor fees), that
are, with respect to this StadiumLeaseand the LeasedPremises, or any portion thereof, assessed,
levied, charged, confirmed or imposedupon or with respect to or becomingpayable out of or
becominga lien on the LeaseholdEstate and the LeasedPremises, or the appurtenancesthereto, or
for any use or occupationof the LeasedPremises, or such franchises, licenses and permits as may
be appurtenant or related to the use of the LeasedPremises, this transaction or any documentsto
which Landlordis a party; provided, however,"Impositions" shall not include Taxes on personal
property not leased from Landlord.
"IndemnifiedParty" is defined in Section 10.7.6.
"Indemnifying
Party" is defined in Section 10.7.6.
"InsuranceAccount"meansa separate depository account maintained by Landlord at an
Acceptable Bank under the terms of this Stadium Lease, the NFLClub Lease and the Stadium
Tri-Party Agreementfor the purposeof holding, applying, investing and transferring the Insurance
Fund.The Insurance Accountshall be separate from, and shall not be a part of, the VenueProject
Fund.
"InsuranceFund" meansthe segregated fund established for the Insurance Proceeds and
held in the Insurance Account.
"Insurance Plan Additional Requirements"means, in addition to the insurance and
policies set forth in Article 9, the insurance policy and coverage requirements set forth in
AppendixE of this Stadium Lease.
"InsuranceProceeds"is defined in Section 13.2.1.
"InsuredCasualty Risks" meansphysical loss or damagefrom fire, acts of God, lightning,
windstorm, hail, flooding, tomado, earth movement(including, but not limited to, earthquake,
landslide, subsidenceand volcanic eruption), collapse, water damage,leakage from fire protection
equipment or sprinkler systems, explosion (except steam boiler explosion), smoke, aircraft
(including objects falling therefrom), motorvehicles, riot, riot attending a strike, civil commotion,
sabotage, terrorism, vandalism,maliciousmischief, theft, civil or military authority and all other
perils (including resultant loss or damagearising from faulty materials, workmanship
or design).
"Intellectual PropertyRights"meansany licenses, permits, franchises, trade secrets,
intellectual property rights, trademarks,patents or copyrights ownedby, or licensed to, Landlord,
the County or a County Affiliate with respect to the usage of any product, process, method,
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substance, material or technologynecessary for the use, operation, maintenanceand enjoymentof
the LeasedPremises. Notwithstandingthe foregoing, the term Intellectual Property Rights shall not
include any of the Intangible Property Licenses, Intangible Property Rights, Existing Intangible
Property Rights, Existing Intellectual Property Rights (as such terms are defined in the License
Agreementsand the RodeoLease Amendment)
or any other intellectual property rights ownedor
separately licensed by Tenant, the NFL,the NFLClub, or their respective Affiliates.
"Interest Rate"meansthe lesser of (i) The Wall Street Journal prime rate or (ii) the
maximum
rate of interest permitted to be charged by applicable law.
"Interloeal Agreement"has the meaning given such term in the Funding Agreement.
"Joint Club/RodeoStore" meansthe store(s) and storage areas contained within the
Stadiumand designed, constructed and finished in accordancewith the Project Agreement,and as
depicted on the Project Plans and generally depicted on Exhibit A-10attached hereto as the Joint
Club/RodeoStore.
"Landlord"meansthe Landlordnamedin the first paragraphof this StadiumLease and, in
accordancewith Section 15.5 hereof, any LandlordTransferee.
"LandlordDefault" is defined in Section 18.1.2.
"LandlordDelay" meansany delay by Landlord in achieving any deadlines for performance
of obligations under this StadiumLease.
"Landlord Event" is defined in the Stadium Tri-Party Agreement.
"LandlordFailure" is defined in Section 18.5.
"Landlord Representative" is defined in Section 1.3.
"LandlordStaffing," is defined in Section 6.1.2.3.
"Landlord Transfer" is defined in Section 15.5.
"Landlord Transferee" is defined in Section 15.5.
"Landlord’s Auto Policy" is defined in Section 10.1.3(d).
"Landlord’sBuilder’s All Risk Policies" is defined in Section 10.1.2.
"Landlord’sCondemnation
Award"means the award payable to Landlord, including all
compensationfor the damages,if any, to the parts of the LeasedPremises not so taken, that is,
damagesto the remainder, but excluding (i) the value of Tenant’s or the NFLClub’s separate
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Property taken or damaged,(ii) the value of the LeaseholdEstate or the "LeaseholdEstate" under
the Existing RodeoLease, (iii) the value of the "LeaseholdEstate" under the NFLClub Lease and
(iv) any damageto, or relocation costs, of Tenant’s or the NFLClub’s business.
"Landlord’sExcess/UmbrellaPolicy" is defined in Section 10.1.3(c).
"Landlord’s
ExhibitionHall ParkingSpaces"meansthe thirty (30) parking spaces located
in the area depicted on Exhibit A-12hereto, the exact location of such parking spaces in such area
° to be mutually agreed upon by the Parties.
"Landlord’sFacilities" meansLandlord’s year-round office and storage space in the
Stadiumas described on Exhibit A-14hereto.
"Landlord’sFF&E"meansall furniture, fixtures, equipment, furnishings, machineryand
all other componentsand personal property ownedby, or leased to, Landlordthat is from time to
time located on the LeasedPremises,together with all additions, alterations and replacementsthereof
(whether replaced by either Party), including all fumiture, fixtures, equipment, fumishings,
’ machinery,displays, Signage, Scoreboardsand other per]onal property installed, affixed, attached
or supplied to the LeasedPremisesby Landlordpursuant to the terms of the Project Agreementand
any additions, changesor alterations thereto or replacementsor substitutions therefor. Landlord’s
FF&Edoes not include Tenant’s FF&E,the NFLClub’s FF&Eor any personal property ownedor
leased by any SpaceTenants(or sub-tenants or licensees of Tenantor the NFLClub permitted under
this StadiumLease or the NFLClub Lease), licensees or invitees that mayfrom time to time be
brought onto the Leased Premises.
"Landlord’sGLPolicy" is defined in Section 10.1.3(a).
"Landlord’sLand"means(i) all of the land currently boundedby Kirby Drive, Murworth
Drive, LanternPoint and WestridgeStreet and (ii) all of the land currently boundedby KirbyDrive,
McNee
Street, Lantern Point and MurworthDrive, except the "Practice Facilities Land"(as defined
in the NFLClub Lease) situated within such boundary, all as depicted on Exhibit A-2 attached
hereto.
"Landlord’sParkingSpaces" means, collectively, (i) ninety (90) parking spaces on
ComplexGroundsat a location to be mutually agreed to by Tenant and Landlordduring each Spring
Rodeoand RodeoFestival, (ii) Landlord’s Exhibition Hall Parking Spaces and (iii) Landlord’s
Stadium Parking Spaces.
"Landlord’sPropertyInsurancePolicy" is defined in Section 10.1.1.
"Landlord’sRemedialWork"is defined in Section 6.6.
"Landlord’sStadiumParkingSpaces"meansthe thirty (30) parking spaces locatedin the
area depicted on Exhibit A-13hereto.
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"Landlord’sWorkers’Compensation
Policy" is defined in Section 10.1.3(b).
"LeaseExpirationDate" means11:59 p.m. on the last day of the Lease Termas determined
in accordancewith Article 3.
"LeaseTerm"is defined in Section 3.1.
"LeaseYear" meansa period of twelve (12) consecutive calendar months. Thefirst Lease
Year shall begin on the first day of the first monthafter the Commencement
Date unless the
Commencement
Date occurs on the first day of a month,in whichevent the first Lease Year shall
begin on the Commencement
Date.
"LeasedPremises"is defined in Section 2.1.1. Anyreference to the "Leased Premises"
shall include any part or portion thereof unless the context otherwiserequires.
"LeaseholdEstate" meansthe leasehold estate in the Leased Premises granted to Tenant
under this StadiumLease and all other rights, titles, and interest granted to Tenant under this
Stadium Lease.
"LegalHoliday" meansany day, other than a Saturday or Sunday, on which the City’s or
County’sadministrative offices are closed for business.
"License Agreements"means, collectively,
Club License Agreement.
the Rodeo License Agreement and the NFL
"Lien" means,with respect to any Property, any mortgage,lien, pledge, charge or security
interest, and with respect to the LeasedPremises,the termLien shall also include any liens for taxes
or assessments, builder, mechanic, warehouseman,materialman, contractor, workman,repairman
or cartier lien or other similar liens, including, but not limited to, Mechanic’sLiens.
"Maintain"and "Maintenance"
meansall work(including all labor, supplies, materials
and equipment)whichis of a routine, regular and predictable nature and reasonably necessary for
the cleaningand routine upkeepof any property, structures, surfaces, facilities, fixtures (including
media plug-ins and cable and all wiring attendant thereto), equipment, furnishings, and
improvementsthat form any part of the Leased Premises (including machinery, pipes, plumbing,
wiring, gas and electric fittings, elevators, escalators, showers,toilets and restroomfacilities, first
aid facilities, spectator and other seating, access to the Stadiumor any other componentof the
LeasedPremises) in order to preserve such items in a First Class Condition. Maintenanceshall
include the following: (i) preventative or routine maintenancethat is stipulated in the operating
manualsfor the componentsas regular, periodic maintenanceprocedures; (ii) periodic testing
building systems, such as mechanical,card-key security, fire alarm, lighting and soundsystems;
(iii) ongoing trash removal; (iv) regular maintenanceprocedures for heating, ventilating
air-conditioning, plumbing,electrical, roof and structural systemsand vertical lift systems(e.g.,
escalators and elevators), such as periodic cleaning of the LeasedPremises,lubrication and changing
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air filters and lights; (v) painting ofaroutine, regular and predictablenature; (vi) cleaning,including
restocking as described in Section 6.1.4 prior to, during and following, and necessary as a direct
result of, all Events, Tenant Non-Eventsand NFLClub Tenant Non-Events; (vii) Performance
PreparationServices; (viii) changingof light bulbs, ballasts, fuses and circuit breakers, as they burn
out; (ix) replacementof all PerformanceArea light bulbs as maybe or becomenecessary for proper
lighting of the PerformanceArea and the seating area around the PerformanceArea, both for day
events and night events; (x) all renewalsand replacementsof equipmentparts and components,that
are not Capital Repairs, as maybe necessary to maintain the Stadiumand Landlord’s FF&Ein a
First Class Condition;(xi) the labor required to performCapital Repairsif performedby Landlord’s
or the Complex
Manager’semployeeson a "non-overtime"basis; (xii) any other workof a routine,
regular and generally predictable nature that is necessaryto keepthe LeasedPremisesin a First Class
Condition; and (xiii) any workreasonably necessary to repair, restore, refurbish or replace any
equipment, facility, structure or other componentof the Leased Premises that has become
dysfunctional as a result of Landlord’sfailure to performits maintenanceobligations under this
StadiumLease or Landlord’snegligenceor other breach of its obligations under this StadiumLease.
Maintenanceshall not include cleanup and janitorial services for Tenant’sFacilities.
"Maintenanceand Capital Repair Work"is defined in Section 6.2.1.
"Major Component"is defined in Section 18.7.1.
"Major Event" is defined in Section 22.22.
"Major League Team"means(i) any team that is a memberof the NFLor any successor
organization or (ii) any team or organization whois, or whosemembersare, membersof any
organization sanctioning professional rodeo events or any of their successor organizations and any
other professional teams or organizations involved in any rodeo, riding or similar events.
"Management
Committee" has the meaning given such term in the Stadium Tri-Party
Agreement.
"Mechanic’sLien" is defined in Section 6.4.1.
"Memorandum
of Lease" meansthe short form memorandum
of this Stadium Lease in the
form attached hereto as Exhibit E containing (amongother information) the namesof the Parties,
a description of the LeasedPremises and the Lease Term.
"METRO"
means the Metropolitan Transit Authority of Harris County, Texas.
"MiscellaneousRevenues" has the meaning given such term in the Funding Agreement.
"Miscellaneous Rodeo Revenues" has the meaning given such term in the Funding
Agreement.
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"Mortgage"meansa mortgage, a deed of trust, a security agreementor any other type of
security instrument pursuant to whicha Lien is granted to secure debt.
"Mortgagee" meansthe trustee and beneficiary under, and the party secured by, any
Mortgage.
"Net Revenues" meansexcess revenue over expenses with respect to any Tenant Event,
Spring RodeoEvent or RodeoFestival Event (projected or otherwise) as determined by Tenant
accordance with GAAP.
"Net Worth" means, for any Person on any date of its determination, such Person’s
consolidatedtotal unrestricted assets on such date minussuch Person’sconsolidatedtotal liabilities
on such date, all determinedin accordancewith GAAP
after giving effect to the Transfer to such
Person.
"NFL"meansthe National Football League, a not-for-profit association having its chief
executive office currently located at 280 Park Avenue, NewYork, NewYork 10017, and any
successorthereto.
"NFLClub" means Houston NFLHoldings, L.P., a Delaware limited partnership having
its principal offices 711 Louisiana Street, Suite 3300, Houston, Texas 77002-2716, and any
successor thereto or permitted assignee under the NFLClub Lease.
"NFLClub Event" meansany "Football HomeGame"or "Tenant Event," as each of those
terms are defined in the NFLClub Lease.
"NFL Club Lease" means the NFLClub Stadium Lease Agreement dated as of the
Effective Date by and between Landlord and the NFLClub, as the same may be amended,
supplemented, modified, renewed or extended from time to time in accordance with the terms
thereof and the StadiumTri-Party Agreement.
"NFLClub License Agreement" means that certain NFLClub License Agreement dated
as of the Effective Date by and betweenLandlord,as licensor, and the NFLClub, as licensee, as the
same maybe amended, supplemented, modified, renewed or extended from time to time in
accordance with the terms thereof and the StadiumTri-Party Agreement.
"NFLClub Tenant Non-Event"has the meaning of a "Tenant Non-Event"as that term is
defined in the NFLClub Lease.
"NFL Club Recognition, Non-Disturbance and Attornment Agreement" means that
certain NFLRecognition, Non-Disturbanceand AttornmentAgreementas of the Effective Date by
and amongLandlord, the NFLClub and the County, as the same maybe amended,supplemented,
modified, renewedor extended from time to time.
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"NFLClub’ s Facilities" meansthe NFLClub’s offices, administrative space, locker rooms,
workoutrooms, training rooms, dressing rooms, showerspace and ancillary facilities contained
within the Stadium and designed, constructed and finished in accordance with the Project
Agreement,and as depicted on the Project Plans and generally depicted on Exhibit A-4 attached
hereto.
"NFLClub’s FF&E"meansthe furniture, fixtures, equipment, furnishings, machineryand
all other componentsand personal property ownedby, or leased to, the NFLClub (other than leased
to the NFLClubby Landlordunder the NFLClubLease), together with all additions, alterations and
replacements thereof (whether replaced by Landlord or the NFLClub), but excluding Landlord’s
FF&E,Tenant’s FF&Eand any furniture, fixtures, equipment, furnishings, machineryand other
componentsand personal property ownedor leased by any Space Tenants (as such term is defined
in the NFLClub Lease) (or sub-tenants or licensees of the NFLClub permitted under the NFLClub
Lease), licensees or invitees that mayfrom time to time be brought onto the LeasedPremises.
"NFLClub’s Parking Spaces" means the two hundred (200) parking spaces depicted
Exhibit A-3attached hereto, as the samemaybe reducedor relocated in accordancewith the terms
of Article 4 of the StadiumTri-Party Agreement.
"NFL Football Game" means any pre-season, regular season, post-season, World
Championship(Super Bowl) or other professional football gameplayed (including any Pro-Bowl
Game)under NFLFootball Rules and Regulations in which any NFLteam is a participant or teams
madeup of NFLplayers are participants.
"NFLFootball Rules and Regulations" meansthe constitution, bylaws, rules, regulations
and practices of the NFLin effect at the time in question.
"Non-ConsumableConcessions" means the sale of souvenirs, apparel and merchandise
(including, without limitation, HoustonLivestock Showand Rodeonovelties and licensed items)
and other non-edible items, goods, services, equipmentand wares.
"Original RodeoLease" meansTenant’s lease relating to its use and occupancyof the
AstrodomainComplexembodiedin the documentsidentified on Exhibit F attached hereto.
"Parkino, Facilities" meansthe parking spaces situated on the ComplexGroundsthat
Landlordis required to furnish Tenantpursuant to Section 2.5.4 of this StadiumLeaseor any other
agreement amongthe Landlord, Tenant and the NFLClub, all of which parking spaces shall be
located (i) within the boundarycurrently created by U.S. Interstate 610, FanninStreet, Old Spanish
Trail and MainStreet, and (ii) within those parking spaces owned,leased or otherwise within the
control of Landlord, the Countyor a CountyAffiliate whichare closest to the Stadium.
"Parking Letter" meansthat certain Letter Agreement- Additional Parking Facilities and
Tenant’s Practice Facilities Landdated May17,2001, betweenLandlord, Tenant and the NFLClub.
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"ParkingTax" meansany Taxes imposed pursuant to Chapter 334 or 335 of the Texas
Local GovernmentCode on any motor vehicles parking on the ComplexGrounds.
"Parties" is defined in the first paragraphof this StadiumLease.
"PatronIncidental Events" is defined in Section 2.5.2.2.
"Payments"is defined in Section 4.1.1.
"Performance
Area"meansthe areawithin the Stadium upon which Tenant Events are held
and as delineated on Exhibit A-5 attached hereto, as the samemaybe removed,replace or covered
for other Events.
"Performance
PreparationServices" means, collectively,
Services and the RodeoFestival Preparation Services.
the Spring RodeoPreparation
"PermittedEncumbrances"
meansthose Encumbranceslisted in Exhibit B attached hereto
to the extent, and only to the extent, such Encumbrances
are valid, subsisting and affect the Leased
Premises as of the Effective Date. In addition, Permitted Encumbrancesincludes (i) any Liens
securing any Project Financingso long as such Liens conformto the requirementsof Article 16 of
this StadiumLeaseand (ii) any utility easementsgrantedto third parties after the Effective Date,
the ordinary course of business, to service the AstrodomainComplex,providedthat such easements
do not adversely effect the rights of Tenantunder the Principal Project Documents
or the intended
use of the LeasedPremises. Except as permitted pursuant to Section 2.2.1 of this StadiumLease,
Permitted Encumbrances
shall not include any renewals, modifications, extensions, amendments
or
supplementsto any of the Encumbrances
listed on Exhibit B.
"Permitted Investments" means:
(i)
Obligationsof, or guaranteedas to interest and principal by, the UnitedStates
of America or agencies thereof maturing not more than ninety (90) days after such
investment;
(ii) Open market commercialpaper of any corporation incorporated under the
laws of the United States of Americaor any State thereof and not an Affiliate of Tenant,
whichpaper is rated "P-I" or its equivalent by Moody’sInvestors Service or "A-l" or its
equivalent by Standard & Poor’s Ratings Group;
(iii) Banker’s acceptances and certificates of deposit issued by any bank or trust
companyhaving capital, surplus and undivided profits of at least $500,000,000.00whose
long-term debt is rated "A" or better by Standard & Poor’s Ratings Groupand A2or better
by Moody’sInvestors Service and maturing within ninety (90) days of the acquisition
thereof;
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(iv) Moneymarket funds consisting solely (except that no morethan 10%thereof
maybe held in cash) of obligations of the type describedin clauses (i) through(iii)
and the shares of such moneymarketfunds can be convertedto cash within ninety (90) days;
and
(v)
Suchother obligations or investments as maybe jointly approvedin writing
by the Parties and the NFLClub.
Paymentsunderthe instrumentsdescribedin clauses (i), (ii), (iii) and (iv) abovemaynot be
to any variable other than the principal amountthereof and the fixed or floating interest rate thereon.
"Permitted Transfer" is defined in Section 15.2.
"Permitted Uses" is defined in Section 5.1.
"Person" meansany individual, corporation, partnership, joint venture, association, joint
stock company,trust, limited liability company,unincorporated organization, Governmental
Authorityor any other formof entity.
"Personalty" is defined in Section 11.1.2.
"Physical Obsolescence" and "Physically Obsolete" means any equipment, fixture,
furnishing, facility, surface, structure or any other componentof the LeasedPremiseswhichdoes
not complywith applicable GovernmentalRules or has becomedysfunctional due to defects in
design, materials or workmanship
or ordinary wear and tear other than as a result of Landlord’s
failure to performits Maintenanceobligations under this StadiumLease or Landlord’snegligence
or other breach of its obligations under this StadiumLease. For purposesof determiningPhysical
Obsolescenceor Physically Obsolete,any equipment,fixture, furnishing, facility, surface, structure
or any other componentshall be deemeddysfunctional if such equipment, fixture, furnishing,
facility, surface, structure or any other componenthas deteriorated to a degree that cannot be
remediedthroughMaintenance,unless due to Landlord’snegligenceor other breachof its obligations
under this StadiumLease.
"Post-Event Cleanine" is defined in Section 6.1.5.
"PourageRights" has the meaninggiven to such term in the StadiumTri-Party Agreement.
"Prime Lease" means the Second Amendedand Restated Lease Agreement dated
April 7, 1999, by and betweenthe County, as lessor, and Landlord, as lessee, wherebyLandlord
leases the AstrodomainComplexand the Additional Parking Land, amongother property, from the
County, as amendedby that certain First Amendmentto Second Amendedand Restated Lease
Agreementdated May17,2001, by and between the County and Landlord, and as the same maybe
amended,supplemented,modified, renewedor extended from time to time in accordance with the
Recognition, Non-Disturbance and Attornment Agreements.
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"Principal Project Documents"means the Project Agreement, this Stadium Lease, the
Existing Rodeo Lease, the NFLClub Lease, the License Agreements, the Non-Relocation
Agreement, the Recognition, Non-DisturbanceandAttornmentAgreements,the Funding Agreement
and the Stadium Tri-Party Agreement, as the same maybe amended, supplemented, modified,
renewedor extended from time to time.
"ProhibitedUses" is defined in Section 5.2.
"Project" has the meaninggiven such term in the Project Agreement.
"ProjectA~reement"
meansthat certain Project Agreementdated as of the Effective Date,
by and amongLandlord, Tenant and the NFLClub, as the same maybe amended, supplemented,
modified, renewedor extended from time to time.
"Project Financing"means one or more loans and/or debt issues, together with all
modifications, renewals, supplements,substitutions and replacementsthereof, the proceedsof which
are used to finance or refinance the costs of the Project for whichLandlord,the Sports Authorityor
the Countyis responsible under the Project Agreement,remainingafter taking into account the
proceedsof the Public Debt.
"Project ImprovementsWork"has the meaninggiven such term in the Project Agreement.
"Project Plans" has the meaninggiven such term in the Project Agreement.
"Property" meansany interest in any kind of property or asset, whetherreal, personal or
mixed,or tangible or intangible.
"Public Debt" means the taxable and tax-exempt notes, bonds or other indebtedness
incurred or to be incurred fromtime to time prior to or on or aboutthe Effective Dateto finance the
costs of designingand constructing the Project, and any refinancings or refundings of such notes,
bondsor indebtedness. Public Debt is not secured by a Lien on any of the LeasedPremises.
"Recognition, Non-Disturbanceand AttornmentAgreements"means, collectively, the
RodeoRecognition, Non-Disturbance and Attornment Agreementand the NFLClub Recognition,
Non-Disturbance and AttommentAgreement.
"RecurringEvents" meanstractor pull events, automobileor motorcycleevents and similar
"dirt" events held at the Stadiumand other events at the Stadiumthat recur fromyear to year or at
regularly scheduledintervals; provided(i) that any such event shall haveeither actually occurred
be under contract to occur in the Stadiumin any three (3) years during a five (5) year period
commences
no earlier than five (5) years before the date in question and ends no later than five (5)
years after the date in questionand (ii) TenantEvents,concerts and other events historically held
the Rodeoshall never constitute RecurringEvents.
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"Regular Arbitration" is defined in Section 1.1 of AppendixF.
"RemedialPlan" is defined in Section 18.5.
"Replacement
Option"is defined in Section 18.4.1.
"Responsible Officer" meanswith respect to the subject matter of any certificate,
representation or warrantyof any Personcontainedin this StadiumLease, a vice president or higher
corporate officer of such Person(or, in the case of the Sports Authorityor Landlord,a member
of
the Board of Directors thereof, in the case of the County, a Countyofficial whohas been duly
delegated duties by the Commissioner’s
Court and, in the case of a partnership, an individual who
is a general partner of such Personor such an officer of a general partner of suchPerson)who,in the
normalperformanceof his operational responsibility, wouldhaveknowledgeof such matter and the
requirementswith respect thereto.
"RestrictedEvent" is defined in Section 2.4.
"Reviewand Approval or Consent Rights" is defined in Section 21.3.1.
"ReviewingParty" is defined in Section 21.3.1.
"RodeoClubs" means, collectively, (i) in the Stadium, the Director’s Club and the Chute
Club and (ii) on the Complex
Grounds,any area that Tenant shall designate as a club.
"Rodeo
Dirt" meansa dirt surface placed on the PerformanceArea floor that is of a quality
and thickness suitable for professional rodeo competition and capable of supporting Tenant’s
entertainer stage, and all appurtenantequipment,and whichshall be providedat Landlord’ssole cost
and expense.
"RodeoFestival" meansan annual event composedof RodeoFestival Events and held by
Tenant during the RodeoFestival Dates.
"RodeoFestival BookingNotice" is defined in Section 2.5.3. l(b).
"RodeoFestival Dates" meansa consecutive eighteen (18) day period during the Rodeo
Festival Window.
"RodeoFestival Events" means, collectively, such livestock, equestrian, rodeo, concert,
carnival, parade, barbeque, educational, competition, exhibition, performance,concert and other
entertainment events, and, individually, each such event, from time to time held by Tenant during
the RodeoFestival Dates.
"RodeoFestival PreparationServices"means(i) the installation and removalof the Sound
Baffles in the Stadium,if requested by Tenantand if not already installed, (ii) the removalof the
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grass playing field and the installation of a hard surface on the PerformanceArea capable of
supporting Tenant’s entertainer stage and all appurtenant equipmentand (iii) the installation
removalof seating, including temporaryseating, as directed by Tenant and in Tenant’s reasonable
discretion (providedthat Landlordshall not be obligated to removeany seating that is permanently
affixed to the Stadium).
"RodeoFestival Window"
means the thirty-two (32) day period each calendar year
beginning June 23 and ending July 24 of such calendar year during Tenant’s Six-MonthPeriod.
"RodeoLand" meansthe land depicted on Exhibit A-6 attached hereto.
"RodeoLease Amendment"
means that certain HLSR2001 Amendmentto Lease by and
between Tenant, Landlord and the County dated as of the Effective Date as the same maybe
amended,supplemented,modified, renewedor extended from time to time not in conflict with the
Principal Project Documents.
"RodeoLicense Agreement"
meansthat certain HLSRLicense Agreementdated as of the
Effective Date by and betweenLandlord, as licensor, and Tenant, as licensee, as the samemaybe
amended,supplemented,modified, renewedor extended from time to time in accordance with the
terms thereof and the StadiumTri-Party Agreement.
"RodeoRecognition, Non-Disturbanceand AttornmentAgreement"means that certain
HLSRRecognition, Non-Disturbanceand Attornment Agreementdated as of the Effective Date by
and amongLandlord, Tenant and the County, as the samemaybe amended,supplemented,modified,
renewedor extended from time to time.
"Rodeo’s AramarkAgreement"means that certain Letter Agreement between Aramark
Corporation and Tenant dated February 14, 1996.
"Sales and Use Tax" meansany sales and use taxes imposedby the City, METRO
or any
other GovernmentalAuthority throughout their jurisdictions.
"Scoreboards" has the meaninggiven such term in the Stadium Tri-Party Agreement.
"SecondAudit" is defined in Section 4.4.
"Service Rights" has the meaninggiven such term in the StadiumTri-Party Agreement.
"~" has the meaning given such term in the Stadium Tri-Party Agreement.
"Sky Box Suites" has the meaninggiven such term in the Stadium Tri-Party Agreement.
"SoundBaffles" meansthe soundbaffles for the Stadiumthat are a componentof the Final
Plans.
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"SpaceLease"meansa lease, sublease, license, concession or other occupancyagreement
for the use or occupancyof space or the location of any business or commercialoperations in or on
the LeasedPremisesor any part thereof on a Tenant EventDay, but excluding any lease or sublease
of the entire LeasedPremisesthat gives the SpaceTenantexclusive possessoryrights to the same.
"SpaceTenant" meansa tenant, occupant, licensee or concessionaire under or pursuant to
a Space Lease.
"Sports Authority" means Harris County - Houston Sports Authority, a sports and
communityvenue district created under Chapter 335 of the Texas Local GovernmentCode.
"Spring Rodeo" means an annual event composedof Spring Rodeo Events and held by
Tenant during the Spring RodeoDates.
"Spring RodeoBookingNotice" is defined in Section 2.5.3.1 (a).
"Spring RodeoDates"meansa consecutive forty (40) day period during the Spring Rodeo
Window.
"Sprin~, RodeoEvents" means,collectively, such livestock, equestrian, rodeo, concert,
carnival, parade, barbeque, educational, competition, exhibition, performance,concert and other
entertainment events, and, individually, each such event, from time to time held by Tenantduring
the Spring RodeoDates.
"Spring Rodeo Performance Equipment" has the meaning given such term in the Rodeo
Lease Amendment.
"Spring RodeoPreparationServices" means(i) the installation and removal of all Sound
Baffles in the Stadium,(ii) the installation and removalof the RodeoDirt in the PerformanceArea
as directed by and to the satisfaction of Tenant; providedthat the installation and approval must
occur at least seven (7) days prior to the first day of rodeo competitionfor each Spring Rodeoand
(iii) the installation or removalof seating, including temporaryseating, as directed by Tenantand
in Tenant’s reasonable discretion (provided that Landlord shall not be obligated to removeany
seating that is permanentlyaffixed to the Stadium).
"Spring RodeoWindow"
meansthe fifty-four (54) day period each calendar year beginning
February 3 and ending March28 of such calendar year during Tenant’s Six-MonthPeriod.
"Stadium"
meansthe approximately69,250-seat, retractable roof, natural grass or palletized
grass football stadium currently knownas "The Harris CountyStadium"whichis to be constructed
by Landlord within the AstrodomainComplex,in accordance with the Project Agreementand the
Project Plans. Anyreference to the Stadiumshall include any part or portion thereof unless the
context otherwiserequires.
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"StadiumLease" meansthis HLSRStadium Lease Agreementdated as of the Effective
Date by and betweenLandlord and Tenant, as the samemaybe amended,supplemented, modified,
renewedor extended from time to time in accordance with the terms hereof and the terms of the
Stadium Tri-Party Agreement.
"StadiumTri-Party Agreement"meansthat certain Stadium Tri-Party Agreementdated
as of the Effective Date, by and amongLandlord, Tenant and the NFLClub, as the samemaybe
amended,supplemented, modified, renewedor extended from time to time.
"Statues" is defined in Section 2.6.3.
"Stub Period" is defined in Section 3.1.
"Submittin~ Party" is defined in Section 21.3.1.
"Substantial Completion"has the meaninggiven such term in the Project Agreement.
"Substantial CompletionDate" has the meaninggiven such term in the Project Agreement.
"Substantially All of the Improvements" has the meanings given such term in (i)
Section 13.3.3 of this StadiumLease with respect to any Casualty and (ii) Section 14.2.2 of this
StadiumLease with respect to any CondemnationAction.
"Suites" meansthe private, enclosed suites to be constructed by Landlord within the
Stadiumin accordancewith the Project Plans (including any and all of the Halo Suites and the Sky
BoxSuites), each comprisedof a furnished, enclosed, climate-controlled lounge area, a private
restroom(in somecases) and an open, covered, private deckwith seats facing the PerformanceArea.
"Targeted Tax" means(i) any AdmissionsTax or Pal’king Tax that, whencombinedwith
any surchargerelated thereto that constitutes MiscellaneousRevenues,exceedsthe limits specified
in the definition of MiscellaneousRodeoRevenues,(ii) any Parking Tax that does not conform
the restrictions containedin Section 7.7 of the FundingAgreement,(iii) any Facility UseTaxand
(iv) any Taxby the Sports Authorityor Countynot in effect on the Effective Datethat, either by its
termsor the effect of its application,is not of generalapplicationbut rather is directedat (a) Tenant,
(b) the NFLClub, (c) any Major League Teamor any Major League Team’sspectators, members
or participants with respect to activities at or related to any VenueProject that includes the Leased
Premisesor (d) the activities on the LeasedPremises,Practice Facilities (as such term is defined
the NFLClub Lease) or any VenueProjects that includes the Leased Premises or the revenues
derivedtherefrom.Notwithstandingthe foregoing, Sales andUseTaxesshall not constitute Targeted
Taxes.
"Tax" meansany tax, assessment, levy or similar charge.
"Team"has the meaninggiven that term in the NFLClub Lease.
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"Tenant" has the meaninggiven such term in the first paragraph of this StadiumLease or
any successor owner of the Leasehold Estate pursuant to the requirements of Article 15 or
Section 17.2.2 of this StadiumLease.
"TenantDefault" is defined in Section 18.1.1.
"Tenant Delay" meansany delay by Tenant in achieving any deadlines for performanceof
obligations under this StadiumLease.
"TenantEvents" means, collectively, the Spring RodeoEvents and RodeoFestival Events
and, individually, each Spring RodeoEvent or RodeoFestival Event.
"Tenant Event Day" means any day on which a Tenant Event is Booked.
"Tenant Financing" means one or more loans and/or debt issues, together with all
modifications, renewals, supplements,substitutions and replacementsthereof, the proceedsof which
are used to finance or refinance the costs of any of Tenant’s FF&Eor the operations of Tenant.
Tenant Financing includes a Tenant Mortgage.
"Tenant Incidental Events"is defined in Section 2.5.2.2.
"Tenant Mort~aee" means a Mortgage covering and encumbering all or a portion of
Tenant’srights, title and interests in the LeaseholdEstate.
"Tenant Morteagee" means the Mortgagee named in any Mortgage that is a Tenant
Mortgage,the beneficiary namedin any deed of trust that is a TenantMortgageor the holder of any
lien or security interest namedin any other security instrument that is a TenantMortgage.
"Tenant Non-Events"is defined in Section 2.5.2.2.
"Tenant Non-EventParkingSpaces" is defined in Section 2.5.4.2.
"Tenant Representative" is defined in Section 1.4.
"Tenant Transferee" is defined in Section 1 5.2.
"Tenant’s AdministrativeParking SDaces"meansthe two hundred (200) parking spaces
located in the area depicted on Exhibit A-7attached hereto, the exact location of suchparkingspaces
in such area to be mutuallyagreed uponby the Parties; provided, however,that such parking spaces
shall be adjacent to, and as close as possible to, the mostdirect access to Tenant’sOffice/Meeting
Space.
"Tenant’s AutoPolicy" is defined in Section 10.1.4(e).
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"Tenant’s Builder’s All Risk Policies" is defined in Section 10.1.4(d).
"Tenant’sCasualty Proceeds Ratio" means(i) the sum of all amounts applied to the
principal of the Public Debt from the GuaranteedPaymentsplus all other amountscontributed or
paid by or on behalf of Tenantand used in the development,construction or improvement
of any part
of the AstrodomainComplex,including FF&E
and soft costs, divided by (ii) the sumof all costs
development, construction and improvementof the AstrodomainComplexrelated to the Stadium,
including FF&E
and soft costs, but excludingfinancing costs, costs incurred in the issuance of the
Public Debt, capitalized interest and legal expenses.
"Tenant’sExcess/UmbrellaPolicy" is defined in Section 10.1.4(c).
"Tenant’sFacilities" meansTenant’s audio/visual control and storage roomscontained
within the Stadium and designed, constructed and finished in accordance with the Project
Agreement,and as depicted on the Project Plans and generally depicted on Exhibit A-8 attached
hereto.
"Tenant’s FF&E"meansthe furniture, fixtures, equipment,furnishings, machineryand all
other componentsand personal property ownedby, or leased to Tenant, including the Spring Rodeo
PerformanceEquipment(other than that leased to Tenantunder this StadiumLease), together with
all additions, alterations and replacementsthereof (whetherreplaced by either Party), but excluding
Landlord’s FF&E,the NFLClub’s FF&E,and any furniture, fixtures, equipment, furnishings,
machineryand other componentsand personal property ownedor leased by any Space Tenants (or
sub-tenants or licensees of Tenantpermitted under this StadiumLease), licensees or invitees that
mayfrom time to time be brought onto the Leased Premises.
"Tenant’s GLPolicy" is defined in Section 10.1.4(a).
"Tenant’s MeetingParkingSpaces" meansthe one hundred (100) parking spaces located
in the area depictedon Exhibit A-9attached hereto, the exact location of such parkingspaces in such
area to be mutuallyagreed uponby the Parties~ provided, however,that such parking spaces shall
be adjacent to, and as close as possible to, the mostdirect access to Tenant’sOffice/MeetingSpace.
"Tenant’s Office/Meeting Space" has the meaning given such term in Rodeo Lease
Amendment.
"Tenant’s Parking Spaces" means, collectively, (i) Tenant’s Administrative Parking
Spaces, (ii) Tenant’s MeetingParking Spaces and (iii) Tenant’s WarehouseParking Spaces, as
of the foregoing maybe reduced or relocated in accordance with the terms of Article 4 of the
Stadium Tri-Party Agreement.
"Tenant’sRemedial Work"is defined in Section 6.5.
"Tenant’s Self-Help Rights" is defined in Section 18.5.
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"Tenant’s Six-MonthPeriod" meansthe period of time commencingon February 1st of
any calendar year and ending on July 31 st of the samecalendar year, except in regard to Tenant’s
Six-MonthPeriod commencingin the year 2004, if the Super Bowl(as defined in the NFLClub
Lease) is held in the Stadiumin 2004, Tenant’s Six-MonthPeriod for the year 2004shall commence
on February 9, 2004 and shall end on August8, 2004.
"Tenant’s WarehouseParking Spaces" has the meaning given such term in the Rodeo
Lease Amendment.
"Tenant’sWorkers’Compensation
Policy" is defined in Section 10.1.4(b).
"TexasGeneralArbitration Act"is defined in Section 1. l(b) of AppendixF.
"Transfer"is defined in Section 15.1.
"Untenantable
Condition"meansthe existence of any one of the following conditions but
only to the extent the sameis not the direct proximateresult of the negligence or the willful
misconductof Tenantor its agents or contractors or the failure of Tenantto performits obligations
as required under this StadiumLease:
(i)
Thecondition of the Stadiumis such that the holding of any MajorComponent
of a
Tenant Eventis not permitted under the rules of any organization sanctioning such
Major Component
or any of their successor organizations;
(ii)
The use or occupancyof the Stadium for a Major Componentof a Tenant Event is
not permitted under applicable GovernmentalRule or is restricted in any material
respect under applicable Governmental
Rule or as a result of a Condemnation
Action,
including, but not limited to, denial of access;
(iii)
Theuse or occupancyof thirty-five percent (35%)or moreof any of the manifested
seating areas within the Stadiumby Tenantis restricted or such seats are unusableor
are subject to a material restriction on access, whetheras a result of a Condemnation
Action or otherwise;
(iv)
Less than 22,000 parking spaces (less Tenant’s Parking Spaces, Landlord’s Parking
Spaces and the NFLClub’s Parking Spaces) are available to Tenant within the
ComplexGroundson a Tenant Event Dayfor Tenant’s exclusive use; or
(v)
A MajorComponent
of a Tenant Event is not able to be held by reason of a lock-out
implemented by Landlord, the County, any County Affiliate or the Complex
Manager,or a strike causedby Landlord’s,the County’s,any CountyAffiliate’s or the
ComplexManager’s work forces.
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"Utilities" meanswaterand sewer, electricity, gas, chilledwater, telephone,cable, datalines
and other utility services customarilysupplied to or used fromtime to time in Comparable
Facilities.
"Venue Project" means any "approved venue project," "sports and communityvenue
project" or "venue project" under Chapters 334 or 335 of the Texas Local GovernmentCode.
"VenueProject Fund" meansthe venue project fund established by the Sports Authority
for the Leased Premises pursuant to Chapter 335 of the Texas Local GovernmentCode.
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Appendix A, Page 30
APPENDIX B
TO
STADIUM LEASE
RULES AS TO USAGE
(1)
"Include," "includes" and "including" shall be deemedto be followed
"without limitation" whetheror not they are in fact followedby such wordsor wordsof like
import.
(2)
"Writing," "written" and comparableterms refer to printing, typing and other
meansof reproducingin a visible form.
(3) Anyagreement, instrument or GovernmentalRule defined or referred to
this StadiumLease meanssuch agreementor instrument or GovernmentalRule as from time
to time amended, modified or supplemented, including (in the case of agreements or
instruments) by waiveror consent and (in the case of GovernmentalRules) by succession
comparable successor GovernmentalRules and’ includes (in the case of agreements or
instruments) references to all attachmentsthereto and instruments incorporatedtherein.
(4)
Referencesto a Personare also to its permitted successorsand assigns.
(5)
Anyterrn defined in this StadiumLeaseor any of the other Principal Project
Documentsby reference to any agreement, instrument or GovernmentalRule has such
meaningwhether or not such agreement, instrument or GovernmentalRule is in effect.
(6)
"Hereof," "herein," "hereunder"and comparableterms refer, unless otherwise
expressly indicated, to the entire agreementor instrument in whichsuch terms are used and
not to any particular article, section or other subdivision thereof or attachmentthereto.
Referencesin an instrument to "Article," "Section," "Subsection"or another subdivision or
to an attachment are, unless the context otherwise requires, to an article, section,
subsection or subdivision of or an attachment to such agreement or instrument. All
references to exhibits or appendicesin any agreementor instrument that is governedby this
AppendixB are to exhibits or appendices attached to such instrument or agreement.
(7)
Pronouns, wheneverused in any agreementor instrument that is governed
this AppendixB and of whatevergender, shall include natural Persons, corporations, limited
liability companies,partnerships and associations of every kind and character.
(8)
References to any gender include, unless the context otherwise requires,
references to all genders.
(9)
"and/or."
The word"or" will have the inclusive meaningrepresented by the phrase
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Appendix B, Page 1
(10) "Shall" and "will" have equal force and effect.
(1 1) Unless otherwisespecified, all references to a specific time of day shall
based upon Central Standard Timeor Central Daylight Savings Time, as applicable on the
date in question in Houston,Texas.
(1 2) Referencesto "$" or to "dollars" shall meanthe lawful currencyof the United
States of America.
(13) The words "unreasonably withheld" shall mean unreasonably withheld,
conditioned or delayed.
(14) Wheneverthe context mayrequire, the singular form of nouns, pronounsand
verbs shall include the plural, and vice versa.
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Appendix B, Page 2
APPENDIX C
.TO
STADIUM LEASE
BOOKED SPRING
I
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RODEO DATES
SPRING
YEAR
RODEO
2003
February 10 - March 21
2004
February 16 - March 26
2005
February 14 - March 25
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Appendix C, Page 1
APPENDIX D
TO
STADIUM LEASE
ADDRESSES FOR PAYMENTS AND NOTICES
A.
LANDLORD: HARRIS COUNTY SPORTS & CONVENTION CORPORATION
(1)
Landlord’sAddressfor Payments:Except as provided in the FundingAgreementwith
respect to the GuaranteedPayment,all paymentsto Landlordshall be delivered to
Landlordat the following address:
Harris County Sports & Convention Corporation
8400 Kirby Drive, Gate 5
Houston, Texas 77054
Attention: Executive Director
with sufficient informationto identify the source and application of such funds
(2)
Landlord’sAddressfor Notices: All notices to Landlordshall be sent to:
Harris County Sports & Convention Corporation
8400 Kirby Drive, Gate 5
Houston, Texas 77054
Attention: Executive Director
Facsimile Number:(713) 799-9839
with copies of all notices to Landlordbeing sent to:
City of Houston, Texas
Office of City Attorney
900 Bagby, 4th Floor
Houston, Texas 77002
Attention: City Attorney
Facsimile Number:(713) 247-1017
and
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Appendix D, Page 1
Harris County, Texas
Office of County Attomey
1019 Congress, 15th Floor
Houston, Texas 77002
Attention: County Attorney
Facsimile Number:(713) 755-8924
B.
.TENANT: HOUSTONLIVESTOCK SHOWAND RODEO, INC.
(1)
Tenant’s Addressfor Payments:All paymentsto Tenant shall be delivered to Tenant
at the followingaddress:
Houston Livestock Showand Rodeo, Inc.
Astrohall
2000 South Loop West
Houston, Texas 77054
Attention: Mr. Dan A. Gattis, General Manager
with sufficient informationto identify the source and application of such funds.
(2)
Tenant’sAddressfor Notices: All notices to Tenantshall be sent to:
Houston Livestock Showand Rodeo, Inc.
Astrohall
2000 South Loop West
Houston, Texas 77054
Attention: Mr. DanA. Gattis, General Manager
Facsimile Number:(713) 794-9587
with copies of notice to Tenantbeing sent to:
Houston Livestock Showand Rodeo, Inc.
Astrohall
2000 South Loop West
Houston, Texas 77054
Attention: P. MichaelWells, President
Facsimile Number:(713) 794-9587
and
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Appendix D, Page 2
Bracewell& Patterson, L.L.P.
711 Louisiana Street
Suite 2900
Houston, Texas 77002
Attention: Mr. ThomasO. Moore, III
Facsimile Number:(713) 221-1212
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Appendix D, Page 3
APPENDIX E
TO
STADIUM LEASE
INSURANCE PLAN ADDITIONAL REQUIREMENTS
1.
Landlord’sProperty_ Insurance Policy
a.
Coverageshall also include, as obtainable on commerciallyreasonable terms:
i.
Courseof construction
ii.
Property in course of construction, renovation, installation,
assembly
iii.
Businessinterruption including loss of rents
iv.
Building ordinance
and
construction/demolition
v.
Propertyin transit
vi.
Foundations,retaining walls, fences
vii.
Building glass
viii.
Signs, flagpoles, light standards, outdoorfixtures
ix.
Improvementsand betterments
x.
Mobileequipmentand all property for maintenanceor service of the property
xi.
Pollutant clean up and removal
xii.
Off premises power/utility coverage
xiii.
Sinkhole collapse
xiv.
Ingress/Egress
xv.
Valuable papers and records
xvi.
Accounts receivable
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~aw
Appendix E, Page 1
coverage/increased
erection,
cost
of
xvii.
Broad form namedinsured
xviii. Unintentional errors and omissionsin application, reporting, description
2.
Electrical data processing equipment,media and extra expense
xx.
Boiler and machinery Coverage
Landlord’sand Tenant’s Builder’s All Risk Policies
a.
3.
xix.
Coverageshall also include, as obtainable on commerciallyreasonable terms:
i.
Demolitionand removal of debris (including from demolition occasioned by
condemnationand any other enforcement of GovernmentalRules)
ii.
Inland transit
iii.
Automaticreinstatement of sum insured
iv.
False work
v.
Change of Governmental Rules
vi.
Permission to Occupyendorsement broad enough to permit Tenant and the
Rodeoto occupy the Stadium.
vii.
Soft Costs
viii.
Testing
ix.
Loss of Rents
Landlord’s GLPolicy and Tenant’s GLPolicy
a.
Coverageshall also include, as obtainable on commerciallyreasonable terms, the
following endorsements:
i.
Premisesand operations coveragewith no exclusions for explosion, collapse
and underground property damage
ii.
Owners’and contractors’ protective coverage
iii.
Blanket contractual liability coverage with the personal injury exclusion
deleted
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Appendix E, Page 2
b.
iv.
Personal injury and advertising injury
v.
Host/liquorlegal liability
vi.
Broad form property damagecoverage
vii.
Incidental medicalmalpracticeliability
viii.
Cross liability endorsement
ix.
Hoists and elevators or escalators, if exposureexists
x.
Completed
operations and products liability coveragefor a period of five (5)
years after Final Completion(as defined in the Project Agreement)of all
Project ImprovementsWork(but only as to Landlord’s GLPolicy)
xi.
Pollution (fromhostile fire)
xii.
Blanket additional insured whererequired by written contract
xiii.
Inadvertent errors and omissionsin application, reporting, description
xiv.
Revisednotice of claim requirement(to risk manageror executive officer)
xv.
Broad form named insured
xvi.
Specific waiver of subrogation in favor of Tenant
Minimumlimits:
$1,000,000
$2,000,000
$5,000,000
$2,000,000
$50,000
Each Occurrence
Personal and Advertising Injury
CompletedOperations Aggregate
General Aggregate/all insureds
Fire Legal Liability
These limits may be provided by a combination of the GL Policy and the
Umbrella/ExcessPolicy.
c.
Deductibleor self-insured retention not to exceed:
$250,000any one accident for bodily injury, death and property damage
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AppendixE, Page 3
4.
Landlord’s Workers’ Compensation Policy and Tenant’s Workers’ Compensation Policy
(statutory workers’ compensationcoverage and employersliability)
a.
Extensions of coverage:
i.
Other States endorsement
ii.
Voluntarycompensation,if exposure exists
iii.
United States Longshoreman’sand Harbor Worker’sAct, if exposure exists
iv.
Jones Act, if exposureexists
v.
Ninety (90) day notice of cancellation, non-renewalor material change
coverage
vi.
Amendment
of notice of occun’ence
b.
Specific waiver of subrogation in favor of Landlordand Tenant.
c.
Deductibleor self-insured retention not to exceed:
$250,000any one accident for bodily injury, death or property damage
d.
Alternate EmployerEndorsementin favor of Tenant with respect to the workers
compensation policy
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Appendix E, Page 4
APPENDIX F
TO
STADIUM LEASE
ARBITRATION
Section 1.
PROCEDURES
Arbitration.
1.1. Regular Arbitration. Except for Disputes or Controversies that are required
to be resolved’by Fast-TrackArbitration (as set forth in Section 1.2 of this AppendixF), binding
arbitration of Disputes and Controversies shall be conducted in accordance with the following
procedures ("Regular Arbitration"):
(a)
TheParty seeking arbitration hereundershall request such arbitration
in writing, which writing shall be delivered to the opposing Party and include a clear
statementof the matter(s) in dispute. Ifa legal proceedingrelating to the matter(s) in dispute
has previously been filed in a court of competentjurisdiction (other than a proceedingfor
injunctive or ancillary relief) then such notice of election under this paragraphshall be
delivered within ninety (90) days of the date the electing Party receives service of process
in such legal proceeding. Exceptto the extent providedin this AppendixF, the arbitration
shall be conducted in accordance with the CommercialRules of the AmericanArbitration
Associationby a single arbitrator to be appointed uponthe mutualagreementof the Parties
within twenty(20) days of the date the written request for arbitration wasdelivered to the
opposingParty; provided,however,that during the BondInsurancePeriod, the Parties shall,
instead of selecting a single arbitrator by mutualagreement,agree to a list of three (3)
arbitrators within twenty (20) days of the date the written request for arbitration was
delivered to the opposing Party and submit such list to the BondInsurer, and the Bond
Insurershall then havethe right to select the single arbitrator fromsuchlist; providedfurther,
however,that in the event that the BondInsurer shall fail to select the single arbitrator from
suchlist withinten (10) daysfromthe date that the Parties shall havesubmittedtheir list
three (3) arbitrators to the BondInsurer, then the Parties shall be entitled to mutuallyagree
as to any single arbitrator withoutinvolvingthe BondInsurer. In order to facilitate any such
appointment,the Party seeking arbitration shall submit a brief description (no longer than
two (2) pages) of the Dispute or Controversyto the opposing Party and, during the Bond
InsurancePeriod, the BondInsurer. In the event the Parties are unable to agree on a single
arbitrator or, during the BondInsurancePeriod, a list of three (3) arbitrators within the
twenty (20) day period, then the arbitrator shall be appointed by the then-serving
administrative judge of the civil trial division of Harris County, Texasor any successor
thereto within the next ten (10) day period. TheParty seeking arbitration shall makethe
Parties’ request for appointmentof an arbitrator and furnish a copy of the aforesaid
description of the Dispute or Controversyto said judge. Each Party and, during the Bond
Insurance Period, the BondInsurer maysubmit, but shall not be required to submit, to said
judge a list of up to three (3) qualified individuals as candidates for appointmentas the
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AppendixF, Page 1
arbitrator whoseschedulespermittheir service as arbitrator within the time periods set forth
herein. Thearbitrator appointed by the judge need not be from such lists.
(b) Within thirty (30) days of the date the arbitrator is appointed,
arbitrator shall notify the Parties in writing of the date of the arbitration hearing, which
hearing date shall be not less than one-hundredtwenty (120) days from the date of the
arbitrator’s appointment.Thearbitration hearing shall be held in Houston,Texas. Except
as otherwise provided herein, the proceedings shall be conductedin accordance with the
procedures of the Texas General Arbitration Act, TEX. Cw. PRAC.& REMEDIES
CODE
§ § 171.001 et seq. (the "Texas General Arbitration Act"). Depositions maybe taken and
other discovery maybe made in accordance with the Texas Rules of Civil Procedure,
providedthat (i) depositions and other discoveryshall be completedwithin ninety (90)
of the appointmentof the arbitrator, (ii) there shall be no evidenceby affidavit allowed,and
(iii) eachParty shall disclose a list of all documentary
evidenceto be used and a list of all
witnessesand experts to be called by the Party in the arbitration hearingat least twenty(20)
daysprior to the arbitration hearing.Thearbitrator shall issue a final ruling withinthirty (30)
daysafter the arbitration hearing. Anydecisionof the arbitrator shall state the basis of the
awardand shall include both findings of fact and conclusions of law. Anyaward rendered
pursuant to the foregoing, whichmayinclude an awardor decree of specific performance
hereunder, shall be final and binding on, and nonappealableby, the Parties and judgment
thereon maybe entered or enforcementthereof sought by either Party in a court of competent
jurisdiction. Theforegoingdeadlines shall be tolled during the period that no arbitrator is
serving until a replacementis appointed in accordancewith this AppendixF.
(c)
Notwithstandingthe foregoing, nothing contained herein shall
deemedto give the arbitrator appointed hereunderany authority, poweror fight to alter,
change, amend,modify,waive, add to or delete from any of the provisions of this Stadium
Lease.
(d)
In determiningthe terms and conditions of the resolved subjects, the
arbitrators mayconsider (i) the terms and conditions applicable to other Persons sponsoring
events having "rodeo-like components,""livestock or equestrian components,"concerts or
other componentshistorically included in the Spring Rodeoor the RodeoFestival; (ii) the
physical capacityof the Stadium,(iii) the rights of the NFLClubor other tenants or licensees
to the Stadium; (iv) the objective of providing a high level of service and amenities
Tenant; (v) the interest of spectators in havinga modern,efficient, safe, comfortableand
convenientstadiumin whichto viewTenant Events; (vi) the cost of providingthe disputed
item and anticipated revenue therefrom, and howsuch cost is borne or shared and howsuch
revenueis shared by Comparable
Facilities and their tenants or licensees; and (vii) any other
similar factors.
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Appendix F, Page 2
1.2
Fast-Track Arbitration.
(a)
Within sixty (60) days following the Effective Date, Landlord
Tenantshall agree uponan independentthird party mutuallyacceptable to both Parties (the
"Fast-Track Arbitrator")and an alternate thirdparty (the "Alternate") to decide Disputes
or Controversies required by this StadiumLease to be resolved by Fast-Track Arbitration;
provided, however, that during the BondInsurance Period, the Parties shall, instead of
selecting the Fast-TrackArbitrator and the Alternate by mutualagreement,agree to a list of
five (5) arbitrators within sixty (60) days followingthe Effective Dateand submitsuch
to the BondInsurer, and the BondInsurer shall then have the right to select the Fast-Track
Arbitrator and the Alternate fromsuch list; providedfurther, however,that in the event that
the BondInsurer shall fail to select the Fast-TrackArbitratorand the Alternate fromsuch list
within twenty(20) days fromthe date that the Parties shall havesubmittedtheir list of five
(5) arbitrators to the BondInsurer, then the Parties shall be entitled to mutuallyagreeto any
Fast-Track Arbitrator and Alternate without involving the BondInsurer. Within sixty (60)
days of the fifth (Sth) anniversary of the Effective Date and each successive fifth (5th)
anniversary thereafter during the Lease Term,Landlordand Tenant shall again agree upon
independentthird parties to be the Fast-Track ’.Arbitrator and the Alternate; provided,
however,that the Parties shall earlier agree on a replacementFast-TrackArbitrator and/or
the Alternate if the existing Fast-Track Arbitrator and/or the Alternate shall become
unavailable in the reasonableopinion of a Party; providedfurther, however,that during the
BondInsurancePeriod, the Parties shall, instead of selecting the Fast-TrackArbitrator and
the Alternate, as applicable, by mutualagreement,agree to a list of five (5) arbitrators within
sixty (60) days of the fifth (5th) anniversary of this StadiumLease then in question
submitsuch list to the BondInsurer, and the BondInsurer shall then havethe right to select
the Fast-TrackArbitrator and the Alternate, as applicable, from such list and if the Bond
Insurer shall fail to select the Fast-TrackArbitrator and the Alternate, as applicable, from
suchlist withintwenty(20) daysfromthe date that the Parties shall havesubmittedtheir list
of five (5) arbitrators to the BondInsurer, then the Parties shall be entitled to mutuallyagree
to any Fast-Track Arbitrator and Alternate, as applicable, without involving the Bond
Insurer. If (i) the Parties are unable to agree on a third party to serve as the Fast-Track
Arbitrator or the Alternate, (ii) during the BondInsurancePeriod, the Parties are unable
agree on a list of five (5) arbitrators to submitto the BondInsurer or (iii) if the Fast-Track
Arbitrator or Alternateare unableor fail to act in suchcapacities, any Disputeor Controversy
shall be referred to RegularArbitration pursuant to Section 1.1 of this AppendixF.
(b) Arbitration knownas "Fast-Track Arbitration" shall be conducted in
accordance with the following procedures. If the Dispute or Controversy involves the
alleged failure, or alleged potential failure, of Landlordto operate, Maintainor repair the
LeasedPremisesas required under this StadiumLease, either Party mayrefer a Dispute or
Controversyto Fast-Track Arbitration instead of Regular Arbitration by providing written
notice to the Fast-Track Arbitrator and the other Party. Suchnotice shall include a clear
statementof the matter(s) in dispute and a brief description (no longer than two (2) pages)
of the Disputeor Controversy.Ifa Party gives written notice of the referral of such Dispute
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AppendixF, Page 3
or Controversyto Fast-TrackArbitration, the other Party shall be boundto enter into FastTrackArbitration as providedin this Section 1.2 and maynot resort to RegularArbitration
underthe proceduresof Section 1.1 of this AppendixF except for last sentence of 1.2(a) and
1.2 (c). TheParties mayalso mutuallyagree to Fast-TrackArbitration for any other Dispute
or Controversy(in addition to those involving operation, Maintenance
or repair of the Leased
Premises) by providingjointwritten noticeto the Fast-TrackArbitrator. Inthe event thatthe
Fast-Track Arbitrator is unavailable to resolve the Dispute or Controversywithin the time
period stated in the next sentence, the Dispute or Controversy shall be referred to the
Alternate. TheFast-TrackArbitrator or the Alternate, as the case maybe (the "arbitrator"),
shall be directed to resolve the Dispute or Controversywithin fifteen (15) days of the
referral. Thearbitrator shall diligently endeavorto resolve the Disputeor Controversywithin
such fifteen (15) day time period, taking into account the circumstances requiring
expeditious resolution of the matter. TheParties shall cooperatein goodfaith in providing
to the arbitrator any informationreasonably neededto resolve the Dispute or Controversy.
Thearbitrator’s decision shall be set forth in awritten decision. Unlessa Party gives written
notice of dissatisfaction with the decision (as permitted under Section 1.2(c) of this
AppendixF), the decision of the arbitrator shall be final and binding upon and nonappealable by the Parties and judgment thereon maybe entered or enforcement thereof
sought by either Party in a court of competentjurisdiction. Thecosts and expensesof the
arbitrator shall be shared equally by the Parties, and the additional incidental costs of
arbitration shall be paid for by the non-prevailingParty in the arbitration; provided,however,
that wherethe final decision of the arbitrator is not clearly in favor of either Party, such
incidental costs shall be shared equally by the Parties.
(c)
Thedecision of the arbitrator underthis Section1.2 shall be final and
bindingon the Parties unless written notice of dissatisfaction with the decision is given by
one Party to the other Party withinfifteen (15) days of the date of the written decision of the
arbitrator, in whichevent the Party giving such notice mustrefer the Disputeor Controversy
to Regular Arbitration pursuant to Section 1.1 of this AppendixF.
Section 2.
Further Qualifications of Arbitrators; Conduct.Every person nominatedor
recommended
to serve as an arbitrator shall be and remainat all times neutral and whollyimpartial,
shall be experiencedand knowledgeablein the substantive laws applicable to the subject matter of
the Disputeor Controversyand shall havesubstantial experiencewith leases of multi-purposepublic
sports and entertainmentfacilities by public entities to concert promotersand producersof events
having "rodeo-like components"and "livestock or equestrian components".All arbitrators shall,
uponwritten request by either Party, provide the Parties with a statement that they can and shall
decide any Dispute or Controversyreferred to themimpartially. Noarbitrator shall currently be
employedby either Party, the NFLClub, the City, the Sports Authority, the County, any County
Affiliate, the NFL,any memberteamof the NFLor the BondInsurer, or have any material financial
dependenceupon a Party, the NFLClub, the City, the Sports Authority, the County, any County
Affiliate, the NFL,any member
team of the NFLor the BondInsurer, nor shall any arbitrator have
any material financial interest in the Disputeor Controversy.Further, all arbitrators mustmeetthe
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Appendix F, Page 4
qualifications and adhere to the standards of Sections 154.052and 154.053of Chapter 154, TEXAS
CIVIL PRACTICE
ANDREMEDIES
CODE.
Section 3.
ApplicableLawand Arbitration Act. Theagreementto arbitrate set forth in
this AppendixF shall be enforceable in either federal or state court. The enforcementof such
agreementand all proceduralaspects thereof, including the construction and interpretation of this
agreementto arbitrate, the scope of the arbitrable issues, allegations of waiver,delay or defensesas
to arbitrability and the rules (except as otherwiseexpressly providedherein) governingthe conduct
of the arbitration, shall be governedby and construedpursuantto the TexasGeneralArbitration Act.
In deciding the substance of any such Dispute or Controversy, the arbitrator shall apply the
substantive laws of the State of Texas.Thearbitrator shall haveauthority, powerand right to award
damagesand provide for other remediesas are available at law or in equity in accordancewith the
laws of the State of Texas,except that the arbitrator shall have no authority to awardincidental or
punitive damagesunder any circumstances (whether they be exemplary damages, treble damages
or any other penalty or punitive type of damages)regardless of whether such damagesmaybe
available under the laws of the State of Texas. TheParties hereby waivetheir right, if any, to
recover punitive damagesin connection with any arbitrated Dispute or Controversy.
Section 4.
Consolidation. If the Parties initiate multiple arbitration proceedings, the
subject matters of whichare related by common
questions of law or fact and whichcould result in
conflicting awardsor obligations, then the Parties hereby agree that all such proceedingsmaybe
consolidatedinto a single arbitral proceeding.
Section 5.
Pendencyof Dispute; Interim Measures. The existence of any Dispute or
Controversyeligible for referral or referred to arbitration hereunder,or the pendencyof the dispute
settlement or resolution proceduresset forth herein, shall not in and of themselvesrelieve or excuse
either Party fromits ongoingduties and obligations under this StadiumLeaseor any right, duty or
obligation arising herefrom;provided, however,that during the pendencyof arbitration proceedings
and prior to a final award,uponwritten request by a Party, the arbitrator mayissue interim measures
for preservationor protection of the status quo.
Section 6.
CompleteDefense. The Parties agree that compliance by a Party with the
provisions of this Appendixshall be a completedefense to any suit, action or proceedinginstituted
in any federal or state court, or before any administrativetribunal by the other Party with respect to
any Disputeor Controversywhichis subject to arbitration as set forth herein, other than a suit or
action alleging non-compliancewith a final and binding arbitration awardrendered hereunder.
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Appendix F, Page 5
APPENDIX G
TO
STADIUM LEASE
BUSINESS INTERRUPTION INSURANCE VALUES CALCULATION
Duringeach Lease Year of the BondInsurance Period, Landlordshall be required to carry business
interruption insurance in an amountequal to the average of the sumof the MiscellaneousCounty
Revenues, Miscellaneous Rodeo Revenues and Club Guaranteed Payments (as defined in the
FundingAgreement)over the immediatelypreceding three (3) years (the "Base Amountof Rental
Interruption Insurance"), subject to adjustmentas providedin the next sentence. EachLease Year
during the BondInsurancePeriod, Landlordwillbe entitled to adjust downward
the amountof rental
interruption insurance required to be carried pursuant to the terms of this Agreement
by subtracting
from the Base Amountof Rental Interruption Insurance (as determinedpursuant to the immediately
preceding sentence without adjustment) an amountequal to the, positive result, if any, obtained
whenthe amountspecified below in subparagraph2 is subtracted from the amountspecified below
in subparagraph1:
1.
The average (over the immediatelypreceding three (3) years) of the sumof
Vehicle Rental TaxRevenues(as defined in the FundingAgreement)and the Hotel
OccupancyTax Revenues(as defined in the Funding Agreement) plus the rental
payments required to be made by Houston McLaneCompany,Inc. under the
principal project documentsbetweenHoustonMcLaneCompany,Inc. and the Sports
Authority and the rental paymentsrequired to be madeby RocketBall, Ltd. under
the principal project documentsbetweenRocketBall, Ltd. and the Sports Authority.
2.
Theregular debt service requirementsfor the immediatelypreceding year on all of
the Sports Authority’s bondsissued to finance EnronField, the Stadiumand/or the
new Houston/Harris County Arena.
If at the time Landlordis entitled to any such downward
adjustment,less than three (3) years figures
for the foregoing are available, the three (3) year average shall be based on the years for which
figures are available. Duringeach Lease Year after the BondInsurance Period, Landlordshall be
required to carry business interruption insurancein an amountthat is consistent with goodinsurance
practices for Comparable
Facilities.
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Appendix G, Page 1
EXHIBIT A-1
TO
STADIUM LEASE
DEPICTION
OF ASTRODOMAIN PROPER
[See Attached]
ERLIR.E042431\008001
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Exhibit A- 1, Page1
....
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RELayP~K
5/17/01
RODEO STADIUM
LEASE
EXHIBIT
.~H~
~
: ~’:"~,’-"’~"-
.;-. !HCJOSTOiq’,y
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DEPICTION OF
RODEO LAND
WAREHOUSE
t
IUIIITATIOH
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Abs~ot
A tract or parcel of land comaining
7.366acres out of Prentice W.RoseSurvey,
NO.645, HarrisCounty,Texas,also beinga poninnof the 13.0367acre estate of AmettC.
Smith,©t. el tract, as recorded;- Volume
5006,Page469and’Volume
1394,Page118of
the Harris CountyDeedRecords[H.C.D.R.),said7.366acre tract beingmoreparticuinsly
desm’bed
by metessad boundsas foUowi:(Thebasts of bear~gfor this descriptionis the
call S(~uth57deuces07minutes
28 seconds
Eastfor thes~athe~’~
line (~f the Idain/OST,
LIDparcel as recordedunderClerk’s File No.1293449of the Of~cia]Public Recordof
Real
Propertyof HarrisCounty
(O,P.R.R.P.H.C.)
I, Amlmo
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m
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BEGINNING
at a 5/B-inchiron rod foundat the Intersectionof the westriSht of wayline
of KirbyDrive,(I00 feet wide),recordedunderClerk’sFile No.B445532
if the
(O.P.R.R.P.H.C.)
and the northerlyfight-of-line of MeNee
Street (g0feet wide)l
l’¢corded~, Volume
4¢~7,Page33gof theB.C.D,R.,beingthe ~theast coraer of the
hereindescribedtract;
Z
Z
THENCE
SOUTH
86 degrees 48 m;-utes 40 secondsWest,36.07 feel along said northerly
line of MeNee
St. to a 5/8"ironrod foundat a point of curvatureanda southerlycomerof
the hereindescribed
tract;
~
IS
~
MURWORTH
througha central anginof 36dcsrees05 minutes00secondsto an axle foundat a santhery
comerof hereindescribedtract, said ctuwehavinga radiusof 1,001.00feet, an arc lengthof
630.40 feet, end a long chord bearingNORTH
75degrees08 minutes50 secondsWEST,
620.o4
feet; .
if"
RELIANT
HOLLY
HALL
ASTRODOME
:"
TH~CE
NORTH
57de~’ees
O6minutes
20r, eco.ds
WEST.
444.87
feetloogsaid
northerlylille of McNee
Street to a 5/8-inchiron rodfoundat the southwesterly
cornerof
the hereindescribedtract;
"fHENCE
NORTH
32 degrees 51 minutes01 secondsEAST;348.43feet alon~ the easterly
lille of the 2.94610acaeErnestA.M/tschketract, as recordedunderC~erk’sPoeNo.
0357660
of the O.P.R.R.P.H.C.
to the northwestcornerof the hereindescribedtract;
PARIQNO
RELIANT
STADIUM
y
PARIflNO
THENCE
SOUTH
57 degrees 07 mtnutes28 secondsPAST,965.11 feet along the
southerlyllne of the Matn/OST,
Ltd, Parcel,beingthe residueof the 13.0367acretract, os
recordedunderClerk’sFile No.1.293449
of the O.P.R.R.P.H,C.,
to the northeasterly
cornerof the hereindescribedtract;
~
--,
THENCE
SOUTH
03 degrees 11 minutes20 seconds EAST,10£10feet along raid west
line of KirbyDriveto an easterly comerof the hereindescribedtract;
THENCE
WEST5~.67feet t .....
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11
THENCE SOUTH 03
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20.00feet to an easterly intelSor comerof the herein describedtract;
610)
PROJECTNORTH
II
I
dsEAST,
41.51feet alongsald west
degrees
ll
minutes
20 .... containingT.366act’esofland.
lineofIGrbyDrivetothePOINTOFBEGINNING,
EXHIBIT A-7
TO
STADIUM LEASE
DEPICTION
OF TENANT’S
ADMINISTRATIVE
[See Attached]
ERLIRI\042431\008001
HOUSTON\1163268.24
5/9/01
Exhibit A-7, Page 1
PARKING SPACES
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RELIANTPARK[:,"H~ I ;~ " i! iil
RODEO STADIUM
LEASE EXHIBIT
DEPICTION OF
TENANTS
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[See Attached]
ERLIRI\042431\008001
HOUSTON\l163268.24
5/9/01
Exhibit A-8, Page 1
EXHIBIT A-9
TO
STADIUM LEASE
DEPICTION OF TENANT’S MEETING PARKING SPACES
[See Attached]
ERLIRI\04243
l\00S001
HOUSTON\1163268.24
5/9/01
Exhibit A-9, Page 1
RELIANT
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5/17/01
RODEO
STADIUM
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EXHIBIT A-10
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DEPICTION
OF JOINT
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[See Attached]
ERLIR.I\042431\008001
HOUSTON\I163268.24
5/9/01
Exhibit A-IO, Page 1
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ERLIRI\042431\008001
HOUSTON\l163268.24
5/9/01
Exhibit A-12, Page 1
HALL PARKING SPACES
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5117/01
RODEO STADIUM
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EXHIBIT A-13
TO
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DEPICTION
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[See Attached]
ERLIRI\04243
i\008001
HOUSTON\l163268.24
5/9/01
Exhibit A-13, Page 1
RELENT
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5/17/01
RODEO STADIUM
LEASE EXHIBIT
A-13
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[See Attached]
ERLIRI\042431\008001
HOUSTON\l163268.24
5/9/01
Exhibit A-14, Page 1
RELIANT STADIUM
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BUILDING
NORTH
EXHIBIT B
TO
STADIUM LEASE
PERMITTED
ENCUMBRANCES
1.
Anunobstructed easement 10 feet wide along a portion of the north property line, the
location
of which is shown on Houston Lighting & Power Company Sketch
No. AR-14810-Hattached to and made a part of instrument granting same, and an
unobstructed aerial easement5 feet wide from a plane 20 feet above the ground upward
located south of and adjoining said 10 foot wide easement,as granted to HoustonLighting
& Power Companyby instrument dated February 9, 1962, recorded in Volume4660,
Page 450 of the Deed Records of Harris County, Texas. [AS TO THEASTRODOMAIN
PROPER ONLY.]
2.
Anunobstructed easement10 feet wide, the locatidn of whichis shownon HoustonLighting
& Power CompanySketch No. AR-14810-Hattached to and made a part of instrument
granting same, as granted to Houston Lighting & Power Companyby instrument dated
February 9, 1962, recorded in Volume4660, Page 450 of the Deed Records of Harris
County, Texas. [AS TO THE ASTRODOMAIN
PROPERONLY.]
3.
Anunobstructed easement16 feet wide and 26 feet long for a ground type substation with
the right to fence same, the location of which is shownon Houston Lighting & Power
Company
Sketch No. AR-14810-Hattached to and madea part of instrument granting same,
as granted to HoustonLighting & PowerCompanyby instrument dated February 9,1962,
recorded in Volume4660, Page 450 of the DeedRecords of Harris County, Texas. [AS TO
THE ASTRODOMAINPROPER ONLY.]
4.
Anunobstructed easement20 feet wide, the location of whichis shownon HoustonLighting
& Power CompanySketch No. AR-16285-Hattached to and made a part of instrument
granting same, and an unobstructed aerial easementfrom a plane 20 feet above the ground
upward,the center line of whichcoincides with the center line of said 20 foot wideeasement,
a portion of said aerial easementbeing 50 feet wide and a portion being 75 feet wide, as
shown on said Sketch, as granted to Houston Lighting & PowerCompanyby instrument
dated January 29, 1964, recorded in Volume5433, Page 484 of the DeedRecords of Harris
County,Texas. Affected by Partial Release of Easementfiled for record under Clerk’s File
No. N663464of the Official Public Records of Real Property of Harris County, Texas. [AS
TO THE ASTRODOMAINPROPER ONLY.]
5.
Anunobstructedeasementcontaining 14,125 square feet for a substation site, the location
of which is shownon HoustonLighting & Power CompanySketchNo. AR-16285-Hrevised
January 25, 1964, as granted to Houston Lighting & PowerCompanyby instrument dated
ERLIRI\042431\008001
HOUSTONH163268.24
5/9/01
Exhibit B, Page 1
January 29, 1964, recorded in Volume5433, Page 484 of the Deed Records of Harris
County,Texas. Affected by Partial Release of Easementfiled for record under Clerk’s File
No. N663464of the Official Public Recordsof Real Property of Harris County, Texas. [AS
TO THE ASTRODOMAINPROPER ONLY.]
6.
Use of private roadways for ingress and egress granted to Houston Lighting & Power
Company
by instrument dated January 29, 1964, recorded in Volume5433, Page 484 of the
DeedRecords of Harris County, Texas. Affected by Partial Release of Easementfiled for
record under Clerk’s File No. N663464of the Official Public Recordsof Real Property of
Harris County, Texas. [AS TO THE ASTRODOMA1N
PROPERONLY.]
7.
Anunobstructed easementcontaining 0.082 acres of land for the enlargementof existing
substation site, the location of which is shownon Houston Lighting & PowerCompany
Sketch No. A-23233attached to and madea part of instrument granting samewith right to
enclose said easementwith a suitable fence, also unobstructedaerial easementsfroma plane
20 feet above the ground upward, the locations of which are shownon said Sketch, as
granted to Houston Lighting & Power Companyby instrument dated October 8,1970,
recorded in Volume8191, Page 349 of the DeedRecords of Harris County, Texas. [AS TO
THE ASTRODOMAINPROPER ONLY.]
8.
Anunobstructed easementcontaining 0.004 acres of land for the enlargement of existing
substation site, the location of which is shownon HoustonLighting & Power Company
Sketch No. A-23233datedApri127, 1970, revised December18, 1970, attachedto and made
a part of instrument granting same, as granted to HoustonLighting & PowerCompany
by
instrument dated March1, 1971, recorded in Volume8357, Page 483 of the DeedRecords
of Harris County, Texas. [AS TO THE ASTRODOMAIN
PROPERONLY.]
9.
Anunobstructed aerial easement20 feet wide from aplane 15 feet above the groundupward,
the location of which is shownon HoustonLighting & PowerCompanySketch No. 75-0028
attached to and madea part of instrument granting same, as granted to HoustonLighting &
PowerCompany
by instrument dated June 16, 1975, filed for record July 10, 1975 under
Clerk’s File No. FA81570
of the Official Public Recordsof Real Property of Harris County,
Texas. [AS TO THE ASTRODOMA1N
PROPER ONLY.]
10.
Anunobstructedeasementfor installation operation and maintenanceof electrical lines and
facilities, granted to Reliant EnergyHoustonLighting and PowerCompany,a Division of
HoustonIndustrial Inc., dated March9, 1999, filed for record under CountyClerk’s File
Nos. T677491, T677492and T677490of the Official Public Records of Real Property of
Harris County, Texas. [AS TO THE ASTRODOMAIN
PROPERONLY.]
11.
AnAerial easement for installation operation and maintenanceof electrical lines and
facilities, granted to Reliant EnergyHoustonLighting and PowerCompany,a Division of
HoustonIndustrial Inc., dated March9, 1999, filed for record under CountyClerk’s File
ERLIRI\042431\008001
HOUSTON~1163268.24
5/9/01
Exhibit B, Page 2
Nos. T677493of the Official Public Recordsof Real Property of Harris County,Texas. [AS
TO THE ASTRODOMAINPROPER ONLY.]
12.
Stadium Substation Access Easementdated December23, 1991, filed for record May11,
1992 under Clerk’s File No. N663463of the Official Public Records of Real Property of
Harris County, Texas, executed by Harris County to HoustonLighting & Power Company
for easement containing 0.018 acres of land described by metes and bounds in said
instrument.
[AS TO THE ASTRODOMAIN
PROPERONLY.]
13.
Easementfor sanitary sewerpurposesas set out in Dedicationdated May16, 2000, filed for
record under County Clerk’s File No. U403233of the Official Public Records of Real
Property of Harris County, Texas. [AS TO THE ASTRODOMAIN
PROPERONLY.]
14.
Easementfor the installation, operation and maintenanceof electrical lines and facilities
granted to Reliant EnergyHL&P
dated March6, 2001, filed for record under CountyClerk
File Nos. U922275
of the Official Public Recordsof Real Property of Harris County,Texas.
[AS TO THE ASTRODOMAIN
PROPER ONLY.]
15.
Easementfor the installation, operation, and maintenanceof electrical liens and facilities
granted to Reliant EnergyHL&P
dated March6,2001, filed for record under CountyClerk’s
File Nos. U922277
of the Official Public Recordsof Real Property of Harris County,Texas.
[AS TO THE ASTRODOMAIN
PROPER ONLY.]
16.
Aneasement10 feet wide along the most easterly and most westerly portions of the south
property line for sanitary sewer and storm sewer purposes, granted to the City of Houston
as reflected by instrument dated December30, 1977 filed for record under Clerk’s File
No. F456058of the Official Public Recordsof Real Property of Harris County, Texas. [AS
TO PORTION OF LANDLORD’SLAND BOUNDEDBY KIRBY DRIVE, MURWORTH
DRIVE, LANTERNPOINT AND WESTRIDGESTREET ONLY.]
17.
Aneasement10 feet wide along the south property line for sanitary sewer purposesgranted
to the City of Houstonas reflected by instrument dated December30, 1977filed for record
under Clerk’s File No. F 456058of the Official Public Recordsof Real Property of Harris
County, Texas.
[AS TO TRACT FOUR AS DESCRIBED IN THAT SPECIAL
WARRANTYDEED RECORDEDIN THE OFFICIAL PUBLIC RECORDS OF REAL
PROPERTY
OFHARRIS
COUNTY,
TEXAS
UNDER
CLERK’S
Free NO. R028450
ONLY.]
18.
Aneasement15 feet wide along the east property line and portions of the north and south
property lines for sanitary sewer purposes granted to the City of Houstonas reflected by
instrument dated January 29, 1987filed for record under Clerk’s File No. K 949831of the
Official Public Records of Real Property of Harris County, Texas. [AS TOPORTION
OF
LANDLORD’S LAND BOUNDED BY KIRBY DRIVE, MURWORTHDRIVE,
LANTERNPOINT AND WESTRIDGE STREET ONLY.]
ERLIRI\042431\008001
HOUSTON\l163268.24
5/9/01
Exhibit B, Page 3
19.
Aneasement 15 feet wide along the west property line and along a portion of the south
property lines for sanitary sewer purposes granted to the City of Houstonas reflected by
instrument dated January 29, 1987filed for record under Clerk’s File No. K949831of the
Official Public Records of Real Property of Harris County, Texas. Affected by Consentto
Encroachmentover City Easementfiled for record under Clerk’s File No. T660715of the
Official Public Records of Real Property of Harris County, Texas. [AS TOPORTION
OF
LANDLORD’S LAND BOUNDED BY KIRBY DRIVE, MURWORTHDRIVE,
LANTERNPOINT AND MCNEESTREET ONLY.]
20.
Aneasementand right-of-wayacross the south 487.61feet of subject property granted to St.
Catherine’s Montessori, Inc. by instrument dated February 2, 1989filed for record under
Clerk’s File No.M054096of the Official Public Recordsof Real Property of Harris County,
Texas. [AS TO TRACT FOUR DESCRIBED IN THAT SPECIAL WARRANTY
DEED
RECORDED IN THE OFFICIAL PUBLIC RECORDS OF REAL PROPERTY OF
HARRIS COUNTY,TEXAS UNDERCLERK’S FILE NO. R028450 ONLY.]
21.
OrdinanceNo. 62-646of the City of Houstonestablishing building lines along Kirby Drive,
a certified copy of said Ordinancebeing recorded in Volume4731, Page 607 of the Deed
Records of Harris County, Texas.
22.
Buildingset backline located 20 feet west of and parallel to the west propertyline of Kirby
Drive, as set forth in the instrument recorded in Volume4607Page 345 of the DeedRecords
of Harris County, Texas.
23.
Sublease dated September11, 1980 by and between HoustonSports Association, Inc. and
Astrodome-AstrohallStadium Corporation, as Landlord, and Harry M. Stevens, Inc., as
Tenant (to which ARAMARK
Corporation succeeded as Tenant) as evidenced by
Memorandum
of Lease dated September 11, 1980, filed for record March25, 1981 under
Clerk’s File No. G909293,Real Property Records of Harris County, Texas; Sublease and
Concession Agreementdated March2, 1990, by and between HoustonSports Association,
Inc. (HSA)and Astrodome-Astrohall Stadium Corporation, as Landlord, and Harry
Stevens, Inc., as Tenant (to which ARAMARK
Corporation succeeded as Tenant)
evidenced by Memorandum
of Lease dated March2, 1990, filed for record March12, 1990,
under Clerk’s File No. M546173,Real Property Records of Harris County, Texas.
24.
Terms,provisions and conditions of that certain Parking Area Subleasedated May16, 1975,
by and betweenAstrodome-AstrohallStadiumCorporation, as Lessor, and Astropark, Inc.,
as Lessee, as evidencedby a Memorandum
of Sublease dated May16, 1975, filed for record
May24, 1975, under Clerk’s File No. E 902086, Real Property Records of Harris County,
Texas, as amendedby First Amendment
to Parking Area Sublease dated November3, 1978,
as evidenced by a Memorandum
of Amendment
to Sublease dated November2, 1978, filed
for record November20, 1978, under Clerk’s File No. F 862516Real Property Records of
Harris County, Texas; provided, however, that (i) this Permitted Encumbranceshall not
affect Tenant’s rights or Landlord’sobligations under Section 2.5.4 of this StadiumLease
ERLIRP,042431\008001
HOUSTON\l163268.24
5/9/01
Exhibit B, Page 4
except as provided therein and (ii) this encumbranceshall not be a Permitted Encumbrance
from and after August 16, 2005 and for the remainder of the Lease Term. [AS TOTHE
ASTRODOMAINPROPER ONLY.]
25.
Deed Without Warranty from Houston Livestock Showand Rodeo, Inc. to Landlord dated
May17, 2001 and recorded under Harris County Clerk’s File No.
in the Real
Property Recordsof Harris County, Texas, and the restrictions contained therein. [AS TO
THE RODEO LAND ONLY.]
26.
DeedWithout Warranty to be executed by Cedarcrest Property L.L.C. to Landlord to be
recorded in the Real Property Recordsof Harris County, Texas, the form of whichis shown
as Exhibit "B-1" to the NFLClub Lease. [AS TO THE ADDITIONAL
PARKING
LAND
BOUNDED BY MAIN STREET, MCNEE STREET, LANTERN POINT AND
MURWORTH
DRIVE AND DESCRIBED IN SUCH DEED ONLY.]
ERLIRI\042431\008001
HOUSTON\l163268.24
5/9/01
Exhibit B, Page 5
EXHIBIT C-1
TO
STADIUM LEASE
EVENT STAFFING AND ADDITIONAL STAFFING
May NOT be
Provided
By Tenant
Position*
Ushers
Usher Supervisors
Ticket Takers
Ticket Taker Supervisors
Ticket Sellers
Ticket Seller Supervisors
Will Call Personnel
Will Call Supervisors
Box Office Vault Managers
Event Staff/Peer Security/Crowd Management
Attendants
Event Staff/Peer Security/Crowd ManagementAttendant Supervisors
Door Guards
Door Guard Supervisors
Police/Sheriffs/Constables/Law EnforcementPersonnel(other than (i) areas
on the ComplexGroundswhere Landlord derives revenues, including parking
revenues, and (ii) 24 hour security personnel)
Police/Sheriffs/Constables/Law EnforcementSupervisors (other than (i) areas
on the ComplexGroundswhere Landlord derives revenues, including parking
revenues, and (ii) 24 hour security personnel)
Unarmed
UniformedSecurity Personnel (other than (i) areas
on the ComplexGroundswhere Landlord derives revenues, including parking
revenues, and (ii) 24 hour secunty personnel)
Unarmed
UniformedSecurity Supervisors (other than (i) areas
on the ComplexGroundswhere Landlord derives revenues, including parking
revenues, and (ii) 24 hour security personnel)
Unarmed
Non-uniformedSecurity Personnel (other than (i) areas
on the ComplexGroundswhere Landlord derives revenues, including parking
revenues, and (ii) 24 hour secunty personnel)
Unarmed
Non-uniformedSecurity Supervisors (other than (i) areas
on the ComplexGroundswhere Landlord derives revenues, including parking
revenues, and (ii) 24 hour security personnel)
Stagehand Personnel
Stagehand Supervisors or Stewards
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Exhibit C-l, Page 1
[X]
[X]
[X]
Housekeeping Personnel
Housekeeping Supervisors
Post Event Housekeeping Personnel
Post Event Housekeeping Supervisors
Medical Personnel
Medical Supervisors
Electricians
Projectionists
° Public Address Operators
Score Board/Video Board Operators
Spotlight Operators
Telecommunications and Video Production Personnel
Any Technical or Technical Support Supervisors
Maintenance Personnel
Elevator Operators
Elevator Operator Supervisors
Elevator and Escalator Technicians
Personnel Required by Governmental Rule (except Gbvemmental Rule
promulgated by County that is not of general applicability to all property
ownedor leased by Landlord, the County or any County Affiliate)
IX]
IX]
*Noneof these are paid for or reimbursed by Tenant if they are (a) Landlord Staffing as set forth
Exhibit C-2, (b) Additional Staffing for which Landlord pays in accordance with Section 6.1.2.2 of
this Stadium Lease, or (c) not attributable to Tenant Events and Tenant Non-Events, and then Tenant
shall pay or reimburse them only to the extent they are attributable to Tenant Events and Tenant
Non-Events.
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Exhibit C-l, Page 2
EXHIBIT C-2
TO
STADIUM LEASE
LANDLORD STAFFING
Assistant Box Office Managers
Box Office Receptionist
Box Office Managers
Customer Service Attendants
Customer Service Concierges Including Suites and Club Seats
Customer Service Supervisors
Engineering Supervisors
Engineers
Facility Marketing/Public Relations Staff
Facility Senior Management Staff
Facility Event Managers
Fire Department Personnel
Fire Department Personnel Supervisors
Groundskeepers and Playing Field Personnel
Maintenance Personnel Supervisors
Operations Supervisors
Parking Lot Cashiers
Parking Lot Housekeeping Attendants (Event and Post Event)
Parking Lot Housekeeping Supervisors (Event and Post Event)
Police/Sheriffs/Constables/Law
Enforcement Personnel (including
parking lot and traffic control)
Regular Facility Security/Non-Event Security
Roof Operators
Switchboard Operator
All personnel that would be regular staffing of the Leased Premises during any week (to be
determined by mutual agreement between Landlord and Tenant and reviewed on an annual basis)
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Exhibit C-2, Page 1
EXHIBIT D
TO
STADIUM LEASE
ASSIGNMENT AND ASSUMPTION AGREEMENT
That [
, a
] ("Assignor"),
for and in consideration of the sum of TENand NO/100DOLLARS
($10.00) in hand paid
Assignor by [
, a
] ("Assignee"), and other good
and valuable consideration, the receipt and sufficiency of all of whichis herebyacknowledged
by
Assignor, has TRANSFERRED
and ASSIGNED,and by these presents does TRANSFER
and
ASSIGN
unto the said Assignee all of Assignor’s right, title and interest in, to and under the
following:
1.
The HLSRStadium Lease Agreement dated
., by and between
HoustonLivestock Showand Rodeo, Inc. ("Rodeo"), as Tenant, and Harris County
Sports & ConventionCorporation (the "Corporation"), as Landlord (the "Stadium
Lease");
[2.
The 2000 Amendmentto Lease dated
., by and between the
Rodeo and the Corporation, and the Original Lease referred to therein
(collectively, the "Existing RodeoLease");]
3.
TheCapital Repair ReserveFund(as said term is defined in the StadiumLease) and
Insurance Fund(as said term is defined in the StadiumLease [and the Existing
Rodeo LeaseD;
4.
The Rodeo License Agreementdated
by and between the Rodeo, as
Licensee, and the Corporation, as Licensor (the "RodeoLicense Agreement");
5.
The Project Agreementdated
by and amongthe Rodeo, Houston NFL
Holdings, L.P. (the "NFLClub") and the Corporation (the "Project Agreement");
6.
The Stadium Tri-Party Agreement dated
by and amongthe Rodeo
the NFLClub and the Corporation (the "StadiumTri-Party Agreement");
7.
The HLSRRecognition, Non-Disturbance and Attomment Agreement dated
by and amongthe Corporation, the Rodeoand Harris County, Texas.
(the "Recognition Agreement");and
8.
The Funding Agreementdated
by and amongHarris County-Houston
Sports Authority, the Corporation, the NFLClub and the Rodeo.
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Exhibit D, Page 1
ACCEPTANCE AND ASSUMPTION
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged
by Assignee, Assigneehereby (i) agrees to be boundby all of the terms, conditions
and provisions of the StadiumLease, [the Existing RodeoLease,] the RodeoLicense Agreement,
the Project Agreement, the Stadium Tri-Party Agreement, the Recognition Agreementand the
FundingAgreementand (ii) assumesfull responsibility, on and after the Effective Date, for the
performanceof all the duties and obligations of Assignor under the StadiumLease, [the Existing
Rodeo Lease,] the Rodeo License Agreement, the Project Agreement, the Stadium Tri-Party
Agreement, the Recognition Agreement and the Funding Agreementarising on and after the
Effective Date.
ASSIGNEE’S REPRESENTATIONS
For goodand valuable consideration, the receipt and sufficiency of whichis hereby acknowledged
by Assignee, Assigneehereby represents and warrants to Assignor and the Corporation, as of the
Effective Date, as follows:
] duly formed, valid existing, and in good
(a)
Assignee is a
], with all necessaryconstituent powerand
standing under the laws of [
authority to carry on its present business and to enter into this Assignmentand Assumption
Agreementand consummatethe transactions herein contemplated;
(b) Neither the execution and delivery of this Assignment and AssumptionAgreement
by Assigneenor the performanceby the Assigneeof its obligations hereunder or under the
Stadium Lease, [Existing Rodeo Lease,] Stadium Tri-Party Agreement, Rodeo License
Agreement,the Project Agreement,the Recognition Agreementor the Funding Agreement
will (i) violate any statute, rule, regulation, judgment,order, decree, stipulation, injunction,
charge, or other restriction of any Governmental
Authority (as said term is defined in the
StadiumLease) or court to whichAssigneeis subject or any provision of any charter or bylaws or constituent documents,as applicable, of Assigneeor (ii) conflict with, result in
breachof, constitute default under, result in the accelerationof, create in any party the fight
to accelerate, terminate, modifyor cancel or require any notice under any contract, lease,
sublease, license, sublicense, franchise, permit, indenture, agreementor mortgagefor
borrowedmoney,instrument of indebtedness, security interest or other agreementto which
Assigneeis a party or by whichAssigneeor its assets are bound;
(c)
All proceedings required to be taken by or in behalf of Assignee to authorize
Assignee to execute and deliver this Assignmentand AssumptionAgreementand to perform
the covenants, obligations and agreementof Assignee hereunder have been duly taken. No
consent to the execution or delivery of this Assignmentand AssumptionAgreementor the
performanceby Assigneeof its covenants, obligations, and agreementshereunderis required
fromany partner, board of directors, shareholder,creditor, investor, judicial, legislative or
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Exhibit D, Page 2
administered body, GovernmentalAuthority or any other Person, other than any such consent
whichhas already been unconditionally given.
(d)
This Assignment and AssumptionAgreement constitutes the valid and legally
binding obligation of Assignee, enforceable in accordancewith its terms and conditions,
except as such enforcement maybe limited by bankruptcy, insolvency, reorganization,
moratoriumor other similar laws presently or hereafter in effect, affecting the enforcement
of creditor’s rights generally and by general principles of equity whetherapplied in any
proceedingat law or in equity.
(e)
There is no action, suit, claim, proceeding or investigation pending or to the
Assignee’sknowledgecurrently threatened against Assigneethat questions the validity of
this Assignmentand AssumptionAgreementor the transactions contemplatedherein or that
could either individually or in the aggregate have material adverse effect on the assets,
conditions, affairs, or prospects of Assignee,financially or otherwise, or any changein the
current equity ownershipof Assignee,nor is Assigneeawarethat there is any basis for any
of the foregoing.
Further, Assignorand Assigneeherebyrepresent to the Corporationthat as of the Effective Date, this
Assignment and Assumption Agreementis to implement a Permitted Transfer as described in
Section 15.2(a) of the StadiumLease or a Transfer that has been approvedin accordance with
Section 15.1 of the StadiumLease.
EXECUTED
by Assignor as of[
,
] (the "Effective Date").
ASSIGNOR:
[
]
By:
Name:
Title:
EXECUTED
by Assignee as of the Effective Date.
ASSIGNEE:
[
By:
Name:
Title:
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Exhibit D, Page 3
]
EXHIBIT E
TO
STADIUM LEASE
FORM OF MEMORANDUMOF LEASE
THE STATE OF TEXAS §
§
COUNTY OF HARRIS
§
THIS MEMORANDUM
OF LEASE(this "Memorandum") is made and entered into
effective as of the 17th day of May, 2001, by and between HARRISCOUNTY
SPORTS&
CONVENTION
CORPORATION,
a local government corporation organized under the laws of
the State of Texas ("Landlord"),
and HOUSTON
LIVESTOCKSHOWANDRODEO,INC.,
a Texasnot-for-profit corporation ("Tenant").
RECITALS
A.
Landlord and Tenant have entered into that certain HLSRStadium Lease Agreement
(the "StadiumLease") dated effective as of May17, 2001, pursuant to which Landlord leased to
Tenant and Tenant leased from Landlord, amongother property, the Leased Premises, including
certain interests and rights in and to the land described on Exhibit "A" attached hereto and
incorporated herein, on and subject to the terms and conditions of the StadiumLease and the other
Principal Project Documents.
B.
Landlord and Tenant desire to execute this Memorandum
to provide notice of
Tenant’s rights, titles and interest under the StadiumLease and the other Principal Project
Documentsand in and to the Leased Premises.
For good and valuable consideration,
acknowledged,the Parties agree as follows:
the receipt and adequacy of which are hereby
Section 1.
Definitions and Usage. Unless the context shall otherwise require,
capitalized terms used in this Memorandum
shall have the meaningsassigned to themin the Stadium
Lease, whichalso contains rules as to usage that shall be applicable herein.
Section 2.
Lease. The LeasedPremises has been leased to Tenant pursuant to the terms
and conditions of the StadiumLease, whichis incorporated by reference in its entirety in this
Memorandum.
In the event of any conflict or inconsistency between this Memorandum
and the
StadiumLease, the StadiumLease shall control.
Section 3.
Lease Term. Landlord has leased the Leased Premises to Tenant for a term
commencingat 12:01 a.m. on the first day following the Substantial Completion Date and
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Exhibit E, Page 1
acceptance of the LeasedPremises by Tenant, or such later date as maybe specified by Tenant in
a written notice of exercise by Tenant of the Delay Option or Commencement
Extension Option,
and, unless (a) sooner terminated in accordance with the provisions of the Stadium Lease
(b) extended due to a Stub Period as described in Section 3.1 of the StadiumLease, ending at
11:59 p.m. on the date that is thirty (30) years after the Commencement
Date.
Section 4.
Successors and Assigns. This Memorandum
and the Stadium Lease shall
bind and inure to the benefit of the Parties and their respective successors and assigns, subject
however, to the provisions of the StadiumLease regarding assignment.
[SIGNATURE PAGE FOLLOWS]
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Exhibit E, Page 2
IN WITNESS
WHEREOF,
this Memorandumhas been executed by Landlord and Tenant
as of the date first abovewritten.
LANDLORD:
HARRIS COUNTY SPORTS &
CONVENTION CORPORATION
By:
Name:
Title:
TENANT:
HOUSTON LIVESTOCK
AND RODEO, INC.
By:,
Name:
Title:
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Exhibit E, Page 3
SHOW
STATE OF TEXAS
§
§
COUNTY OF HARRIS
§
This instrument was acknowledged before me on May
,2001 by Michael Surface,
Chairmanof Harris County Sports & Convention Corporation, a local government corporation
organizedunder the laws of the State of Texas, on behalf of said corporation.
Printed Name:
Notary Public in and for the
State of Texas
MyCommissionExpires:
{SEAL}
STATE OF TEXAS
§
§
COUNTY OF HARRIS
§
This instrument was acknowledgedbefore me on May
,2001 by P. Michael Wells,
President of HoustonLivestock Showand Rodeo,Inc., a Texasnot-for-profit corporation, on behalf
of said corporation.
{SEAL}
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Printed Name:
Notary Public in and for the
State of Texas
MyCommission Expires:
Exhibit E, Page 4
12.
Agreeme"nidated November21, 1989 by and between the County and Tenant.
13.
Agreementdated July 16, 1992 by and between Tenant and HSA.
14.
Letter Agreement dated March 6, 1996 by and between Tenant and Houston McLane
Company,Inc., a Texas corporation ("MeLane").
15.
Third Amendment
to Restated Lease andAmendments
dated May7, 1996 by and amongthe
County, AstrodomeU. S.A., a division of McLaneand a Texas corporation ("AUSA"),HSA,
AASC
and Tenant, a copy of said instrument being filed for record on May16, 1996 under
Clerk’s File No. R928153of the Real Property Recordsof Harris County, Texas.
16.
Agreementdated October 8, 1996 by and between Tenant and McLaned/b/a AUSA.
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Exhibit F, Page 2