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48. The Agreement between Plaintiffs and the City is a valid,
binding, andenforceable contract.
49. The City has breached the Agreement by the City Council
voting, andauthorizing its Acting City Manager and City Attorney,
to cancel the Agreement.
50. The City's failure to comply with the Agreement, including
the Council voteof June 10,2015, has caused, is causing, and will
continue to cause substantial andirreparable harm to Plaintiffs in
multiple respects that cannot be adequately addressed by
damages, including without limitation, the following:a. Harm to
Plaintiffs' reputation, brand, and exposure;b. Harm to Plaintiffs'
goodwill and reputation;c. Harm to the continued viability and
stability of the hockey team;d. Harm to the hockey team's
competitive standing within the NHL;e. Harm to the Coyotes' ability
to schedule and promote home games
for the 2015-16 NHL hockey season;f. Harm to Plaintiffs' ability
to maintain and attract fans, players, staff,
sponsors, ticket holders, and vendors;
g. Interference with events, such as the2015-2016 NHL Regular
SeasonSchedule, concerts, and other events abeady scheduled and
booked
by Plaintiffs;h. Harm to Plaintiffs' relationships with
sponsors;i. Harm to Plaintiffs' ability to bid to host the
International Ice Hockey
Federation's World Junior Championship; andj. Harm to
Plaintiffs' ability to attract and book new events for the
Arena.
No adequate remedy at law exists that can adequately compensate
Plaintiffs for these
harms. Accordingly, Plaintiffs are entitled to equitable relief
in the form of injunctive
relief, and specific performance of the Agreement.
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No adequate remedy at law exists that can adequately compensate
Plaintiffs for theseharms. Accordingly, Plaintif are entitled to
equitable relief in the form of injunctiverelief and specific
performance of the Agreement.
64. Although Plaintiffs will eventually seek to recover from the
City all of theirdamages (estimated in excess of $200,000,000), due
to the emergency nature of thematter, Plaintif, at this time, only
seek equitable relief as a result of the City's breach ofcontract
and other wrongful acts, including Plaintiffs' requests for a
temporary restrainingorder, preliminary injunction, permanent
injunction, and specific performance.
65. Plaintif are entitled to recover attorneys' fees, costs, and
expenses,pursuant to A.R.S. $ 12-341.01 and Section 24.16 of the
Agreement.
F'IFTH CAUSE OF ACTION(Injunctive Relief)
(Against All Defendants)66. Plaintiffs hereby incorporate by
reference the preceding paragraphs as if
fully set forth herein.67 . Defendants can only cancel the
Agreement under A.R.S. $ 38-51 l(A) if Mr.
Tindall, or other employees of Plaintiffs, were "significantly
involved in initiating,negotiating, securing, drafting, or creating
the fAgreement] on behalf of [the City] . . ."
68. Defendants failed to provide any evidence showing that Mr.
Tindall, orother employee of the Coyotes, was "significantly
involved" in the initiating, negotiating,securing, drafting, or
creating the Agreement.
69. Plaintiffs are unaware of any of their employees who were
significantlyinvolved in initiating, negotiating, securing,
drafting, or creating the Agreement.
70. As a result, A.R.S. $ 38-51 I does not authorize the City
(a) to cancel theAgreement, or (b) effectuate the cancellation of
the Agreement.
71. The City's failure to comply with the Agreement, including
the Council voteof June I0,2015, has caused, is causing, and will
continue to cause substantial and
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irreparable harm to Plaintiffs in multiple respects that cannot
be adequately addressed bydamages, including without limitation,
the following:
a, Harm to Plaintif' reputation, brand, and exposure;b. Harm to
Plaintif' goodwill and reputation;c. Harm to the continued
viability and stability of the hockey team;d. Harm to the hockey
team's competitive standing within the NHL;e. Harm to the Coyotes'
ability to schedule and promote home games
for the 2015-16NHL hockey season;f. Harm to Plaintiffs' ability
to maintain and altract fans, players, staff,
sponsors, ticket holders, and vendors;g. Interference with
events, such as the 2015-2016 NHL Regular Season
Schedule, concerts, and other events already scheduled and
booked
by Plaintiffs;h. Harm to Plaintiffs' relationships with
sponsors;i. Harm to Plaintif' ability to bid to host the
International Ice Hockey
Federation's World Junior Championship; andj. Harm to
Plaintiffs' ability to attract and book new events for the
Arena.
No adequate remedy atlaw exists that can adequately compensate
Plaintif for theseharms. Accordingly, Plaintiffs are entitled to
equitable relief in the form of injunctiverelief, and specific
performance of the Agreement.
72. Accordingly, this Court should preliminarily and permanently
enjoin andrestrain Defendants from carrying out any further steps
to cancel the Agreement.
73. Plaintiffs are entitled to recover attorneys' fees, costs,
and expenses,pursuant to A.R.S. 12-341.01 and Section 24.16 of the
Agreement.
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SIXTH CAUSE OF ACTION(Declaratory Relief)
(Against All Defendants)74. Plaintiffs hereby incorporate by
reference the preceding paragraphs as if
fully set forth herein.75, Plaintiffs seek a declaratory
judgment pursuant to the Uniform Declaratory
Judgment Act, A.R.S. $$ 12-1831 et seq.76, For the reasons set
forth above, Plaintiffs are entitled to and request a
j udici al determination and declaratory j udgment that:a.
Neither Mr. Tindall, nor any other employee of Plaintiffs was
"significantly involved in initiating, negotiating, securing,
drafting or creating the contracton behalf of [the City] . .
.";
b. Even if Mr. Tindall was significantly involved in
initiating,negotiating, securing, drafting, or creating the
Agreement, Defendants waived their abilityto claim that any
conflict of interest associated with Mr. Tindall cancels the
Agreement byvirtue of the fact that in the Severance Agreement with
Mr. Tindall, "[t]he City, withinformed consent from its attorneys .
. . waive[d] any conflict of [Mr. Tindall] regardingtransactional
matters previously handled by Employee for the City;"
c. Defendants waived its rights under A.R.S. $ 38-511 because
theywaited in excess of nineteen (19) months after Mr. Tindall
started working for Plaintiffs toinvoke A.R.S. $ 38-511 as an
alleged justification to cancel the Agreement;
d. Defendants abused their discretion in approving the
cancellation ofthe Agreement or agreeing to cancel the
Agreement;
e. Defendants denied Plaintiffs due process and provided
unreasonablenotice of the June 10, 2015 Special Voting Meeting;
f. The vote to approve and authorizethe cancellation of the
Agreementis null and void and of no effect; and
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and (b) provided unreasonable notice of the June 10, 2015
SpecialVoting Meeting;
d. The vote to approve and authorize the cancellation of the
Agreementis null and void and of no effect; and
e. Any notice of cancellation of the Agreement arising out of
the June10, 2015 Special Voting Meeting or based on A.R.S. $ 38-51
I is nulland void and of no effect.
D. Reasonable costs and attorneys' fees pursuant to any and all
applicable legalauthority; and
E. Such other and further relief as this Court deems just and
proper under thecircumstances.
DATED this 12th day of June, 2015.SNELL & WILMER r.r.p.
By tJames R. CondoPatricia Lee RefoAdam E. LangOne Arizona
Center400 E. Van BurenPhoenix, AZ 85004-2202Attorneys for
Plaintif
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EXHIBIT A
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t TITY TLfiKORIGI$AL
c-841904t0u2013
SEVERANCE AGREEMENTTHIS AGREEMENT made this First day of April,
2013, by and between Craig D.
Tindall ("Employee") and the City of Glendale, an Arizona
municipal corporation ("City"),which will be in effect as of the
date of approval by the City Council.
RncumA. Employee was appointed f City Council and serve
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b. The City's obligation to continue Employee's compensation and
benefrts throughthe Separation Date is independent of any other
right or obligation set forth hcreinand may not be diminished or
terminated at any time.
3' On July 7,2013, City will remit for the benefit of Employee
deferred compensation equalto 521,787.00, which will be paid and
benefit Employee consistent with the manner inwhich the City has
previously paid Employee's deferred compensation.
4. Within five business days of the date of this Agreement, City
will pay to Employee forother benefits due the amount of $5,250.00
and Employee will retain his cell phone andphone number.
5. On thc Separation Date, Ernployee will be paid for personal
time, and accrued vacationand sick leave as of the Separation Date,
but in no event less than $48,097.29 ("AccruedBenefits
Payment").
a, At Employce's option, Employee may retire from the City as of
the SeparationDate, in which case City will deposit tax-free the
Accrued Benefits Payment intoa Retiree Health Savings Account
established for the benefit of Employee andadministered consistent
with the City's polioies and other applicable regulationsgoverning
the City's Retiree Health Savings Accounts.
b. Should Employee choose to retire from the City as of the
Separation Date,Employee will have all the rights and benefits of
other City retirees.
c, Notwithstanding $ 5(a), Employee may choose to retire but
have the amount duefor personal time, $8,202.16, paid directly to
employee and the remainder of theAccrued Benefits Payment deposited
by the City into a Retiree Health SavingsAccount established for
the benefit of Employee.
6. The City, with informed consent from its attomeys, hereby
waives any conflict ofEmployee or a law firm with which Employee
may become affiliated regardingtransactional matters previously
handled by Employee for the City.
7. The City and Employee, as consideration for this Agreement,
hereby mutually releaseeach other from any and all claims, causes
of action, complaint(s), charge(s) ordemand(s) related to
Employee's service to the City. This release is not intended
toaffect, diminish or eliminate (nor are the following enumerations
intended to create orincrease):
a. any right or claim Employee may have in relation to payments
or benefitsprovided, or to be paid or provided, by the City to
Employee pursuant to the termsof this Agreement;
b. any right or claim Employee may have under the terms of any
health insurancepolicy or health insurance contribution right.
under COBRA; or
c. any vcsted rights Employee may have under any retirement or
defcrredcompensation plan.
8. No Council guideline or City policy, rule, regulation, or
procedure will be deemed topreclude a Council Member or other
employee of the City providing Employee with a
2
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recommendation related to Employee's service for the City.9. The
Effective Date of this Agreement shall be the date of approval by
City Council. The
City Manager upon Council authorization shall execute and return
a fully executedAgreernent to Employee within two business days of
approval by the Council,
10. Upon the Effective Date of this Agreement, the City Manager
shall issue a press releaseconcerning Employec as set forth at
Attachment A.
11. In the event an asserted breach of this Agreement by
Employee, the City may only seekspecific performance of $1 and
waives any right of termination of this Agreement, offset,or
monetary damages.
12. In the event of any controversy, claim or dispute between or
among the parties arisingfrom or relating to this Agreement, the
prevailing party or parties will be entitled torecover reasonable
costs, expenses, court costs, expert witness fees,
litigation-relatedexpenses and attorneys' fees.
13, This Agreement may only be modified or altered by a
subsequent writing to be signed byall parties.
IN WITNESS WIIEREOF, the parties have hereunto set their hands
to be effective as of theEffective Date,Employee:
Craig D. Tindall
City:an Arizona municipal corporation
City Manager
Pam City Clerk Attorney
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Attachment APRESS RELEASE:
Craig Tindall has resigned as City Attomey of the City of
Glendale and will serve theCity as Special Counsel for the next six
months. His continued service will assist the City as ittransitions
several major issues requiring complex legal guidance to a new City
Attorney.
Mr. Tindall has been City Attorney since February 2005 and
served as Acting CityAttorney for many months prior to that date.
During this period, Mr. Tindall provided theleadership and legal
guidance that was critical during a time of dynamic change for the
City.Through his efforts, the City has entered into several major
public-private partnerships necessaryfor the development of major
infrastructure and facilities that provide benef,icial amenities
andenhancement not just to the City, but the state and region as
well. As a result of Mr. Tindallexcellent skills and dedicated
service, the City has received international acclaim.
The City of Glendale thanks Mr. Tindall for his many years of
service to it and itscitizens and wishes him wcll as he pursues new
opportunities.
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EXHIBIT B
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When recoded, ieturri to:
City ClerkCity of Glendale5850 West Glendale AvenueGlendale,
Arizona 85301
CIY CTERKORIGINAT
c-8s320710812013
PROF'ES SIONAL MANAGEMENT SERVICESAND ARENA LEASE AGREEMENT
by and among
CITY OF' GLENDALE,an Arizona municipal oorporation (the
"City')
and
rcEARrzoNA MANAGER CO., LLC,a Delaware limited liability company
(the "Arena Manager")
and
ICEARTZONA HOCKEY CO., LLC,a Delaware limited liability company
(the "Team Owner")
Dated as ofJuly 8,2013
t73t9,L6.14
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TABLE OF'CONTENTS
Page
I. STATEMENT OF INTENT; DEFINITIONS; INTERPRETATION
...........,,41.1 STATEMENT OF INTENT.........,.1.2 Denitions1.3
Terms...,.... 2t
2- PARTY REPRESENTATTVES 222.1 City Representative... 222.2
Arena Manager Representative 22
22
.45
2.3 Team Owner Representative ..............3 TERM.......
3.1 Binding Effect; ClosingDate .3,2 Renewal ..233.3 Early
Termination by fuena Manager/Team Owner .......23
4. ARENA MANAGER .,,.,...244.1 Engagemnt of Arena Manager....
.............,.24
.23
.23
5
4.2 CompliancewithManagementPerformance StandadsDEMISE OF ARENA
A{D USE RIGHTS....5.1 Demise ofArena....5.2 Grant of Use Rights5.3
Compliance with Law....,
6. LEASEHOLD INTEREST
,24.25
.25
.26
6.1
6.26.3
6.46.56.66.76.86.9
..2626
Lease of Exclusive Team Spaces....... 26Sublease of Exclusive
Team Spaces....... ......27Further Sublease Agreements
.........,............. .28Rights and Obligations of Team Owner as
SubtenantTeam SalesBase Rent.. 29T
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TABLE OX'CONItsNTS(continued)
Page
7. LICENSES 307.2 Negotiations.,. 30
..307.4 Execution and Performance........... ..30
7.6 CityRevenue Events .....7.7 Enforcement of Licenses7.8
Collection and Allocation of Revenues................
8.2 Management and Operation of Parking8.3 Event
Requirements.................8.4 Quality Standad....... 368.5
Concessions 378.6 Advertising and Media 39
428.7 Suites8.8 Premium Seat Agreements 438.9 Scheduling .448.10
Arena Accounts ......468,1I Impositions8.L2 Contracts and
Agreements..........,.........8.13 Accounting Procedures.. .49
8.15 Revisions and Reallocations.........8.16 Financial
Reports......8.17 Audits........8.18 Litigation 548.19 Use by the
Team and Occurrence of Home Games..... ........,..,..........55
34
31
3232
35
47
5253
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TABLE OF CONTENTS(continued)
Page
9, CHARGES ANID FEES
9-2 Separate Statement of Fees on Tickets10. MANAGEMENT FEE;
TAXATION
l0.t ManagementFee..........,..
11.
55
6t
.,...,.,.57
.........58
.........s810,2 Talration of Transactions and Activities at
Arena 58CAPITAL IMPROVEMENTS.....,.,11.1 Arena Manager's
Obligation
59
..59lI.2 Renewal and Replacement Schedule s9I 1.3 Funding of
Capital Improvements.....,....... 59ll.4 Budgeting for Capital
Improvements ............. .................5911.5 Renewal and
Replacement AccountI 1.6 Emergencies..............,..ll.7
CityRights 6tI1.8 Exclusive Team Spaces1 L9 Non-Budgeted Capital
Improvements .............11,10 Ownership of the Capital
Improvements..........1 1.1 I Compliance with City Code;
Procurement.......
62
6262
11,12 Arena Manager or Team Owner-Caused Lien 6212.
LENDERPROTECTION.............
l2,l Team Orvner Lenders' Protection.. ...............6312.2
Arena Manager Lenders' Protection.. ...........6512,3 Assignment of
Arena Manager's RightsL2.4 Estoppel Certificates for City12.5
Subordination to City Encumbrance
13. rNSURANCE...................,..13.1 Arena Manager
Insurance...
13.3 Team Owner Insurance.,.13,4 Waiver of Recovery
63
6s6768
68
6868
,...,.,....68..........69
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TABLE OF'CONENTS(continued)
Page
13.5 Failure to Maintain lnsurance..13.6 Notice........13,7
Provisions13.8 Periodic Review and Adjustment
T4, DAMAGE OR DESTRUCTION14.l Terms,....,...............14,2
Adequately Inswed Damage14.3 lnsurance Deficiency and
Termination,...,.14.4 Damage or Destruction Near End of Term14.5
Abatement of Certain Team Owner ObligationsEMINENTDOMAIN..15.1
Terms.15.2 SubstantialTaking15.3 Partial
Taking..........;........15.4 Partial Taking Nea End of Term15.5
Abatement of Certain Team Owner Obligations ....,.......r......
16. REPRESENTATIONS, WARRANTIES AND COVENA}ITS .............16.1
Arena Manager Representations and Warranties16.2 Team Owner
Representations and Waranties1 6.3 City Representations and
Warrarties ...............L6.4 Team Owner Covenant16.5 City
Covenants16.6 Other Covenants of the Parties
1,7. DUE DILIGENCE; CONDITIONS TO CLOSING17.l Due Diligence17.2
Conditions to Closing
69
70
70
707070
71
15.
18.
19.
7l73
73
73
73
73
74
75
75
75
75
7677
7979
7980
80
CHALLENGE(S)80
83
84
84
REMEDIESl9.l Team Owner Remedies ...19.2
ArenaManagerRemedies
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TABLD OF CONTTNTS(oontinued)
Page
19.3 City Remedies.............. 86Rights and Remedies are
CumulativeCosts, Expenses and FeesAcceptance of Legal
Process......
20. INDEMNIFICATION 8920.I Arena Manager Indemnifrcation of City
8920.2 Team Owner Indemnification of C .........8920.3
Citylndemnifications 89
21. DISPUTERESOLUTION........... 892l.l Altemative Dispute
Resolution-Mediation.....21.2 Mediation Procedure..2'1,.3 Equitable
Litigation ..;......,.............
19.4l9.s19.6
22,1 Arena Manager Assignment22.2 Teacr Owner Assignment...,
.....8888
.88
............,.89
..............90
..............90
9t
929292
23.24.
93
93
93
93
93
9s9s
.95
9lINTENTIONALLY DELETED..........MISCELLANEOUS ...-......24.I
Amendment; Waiver.....,24.2 Consents and Approvals24.3 Additional
Documents and Approval24,4 LimitedSeverability24.5 Binding
Effect.24.6 Relationship of Parties..........24.7 Notices24.8
Applicable Law; Jurisdiction................24.9 Time is of the
Essence24.L0 Antidiscrimination Clause24.L|
Counterparts.......24.12 Entire Agreement: Conflict .......9524.13
Conflicts of Interest ....-..,,...........96
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TABLE OF CONTENTS(continued)
Satrda Sunday or Holiday.Page
24.1424.1524.1624.t724.r824.1924.2024.2124.2224.2324.24
.97
.97
96
96
97
979798
99
Confi dentiality of Proprietary Infomrion.........,.Attorneys'
Fees...,.......Force Majerrre.....Agreed
Extensions.....SurvivalThird-Party Benefi
ciariesRecordationProvisions That Are Subject to Other
AgreementsImmigration Law ComplianceIran and Sudan Prohibitions
........
98
98
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PRO'ESSIONAL MANAGEMENT SERYICES ANI)ARENA LEASE AGREEMENT
THIS PROI'ESSIONAL MANAGEMENT SERVICES AND ARENA LEASEAGREEMENT
(this r'Agreenent") is dated as of July 8,2013 (the "Effective
Date'), and isentered into by and among the City of Glendale, an
Arizona municl corporation (the..City',);IceArizona Manager Co.,
LLC, a Delaware limited liability company (the rrArena
Managertt),and IceArizona Hockey Co., LLC, a Delaware limited
liability company (the *Team Ownerr).Each of City, Arena Manager
and Team Owner may be referred to in this Agreementindividually as
a'?arty," and collectively as the "Parfies."
RECITALSAs background to this Agreemen! the 'Parties recite,
state and acknowledge the
following, each of which Recitals is firlly incorporated into
this Agreement and expressly made amaterial tenn and condition of
this Agreement. The following Recitals shall constitute
jointrepresentation of the Parties, except where a statement or
funding is specifically athibuted to oneParty:
A. The City is the owner of a sports and entertainment arena
presently known asJobing.com Arena (the "Arena') which has been the
home to the Phoenix Coyotes (the "Team")National Hockey League
("lHL") club since the opening ofthe Arena on December26,2003.
B. The Arena Manager and Team Owner have represented to the City
thaq followingthe bankruptcy of a pfevious owner of the Team (the
"Previous Team Owner"), and anaffrliated entity that previously
managed the Arena (the "Previous Arena Manager" andtogether with
the Previous Team Owner, the'"Previous Owners') certain assets of
the Team,including the Team's NHL franchise (the "X'ranchise") and
the Previous Team Owner'smembership rights in the NHL, were
acquired by Coyotes Newco, LLC, a Delaware limitedliability company
affrliated with the NHL ("Coyotes Nerrco") and certain rights with
respect tocertain assets of the Previous Arena Manager were
acquired by Arena Newco, LLC, a Delawarelimited liability company
affliated with the NHL ("Arena Newco'). However, neither
CoyotesNewco nor Arena Newco assumed the obligations of the
Previous Owners arising under thatcertain "Amended and Restated
Arena Management, Use and Lease Agreement" datedNovember 29,2001,
by and among the C, the Previous Owners and certain other parties,
filedwith the Glendale City Clerk as Document No. C-4416 (the
"Former AMULA'), and theFormer AMULA has since been terminated by
the C.
C. The City has informed the other Parties that, in the City's
judgment, it has notwaived any of its rights against the Previous
Owners with respect to the Former AMULA,including the Previous Team
Owner's covenant to cause the Team to play all of the Team'shome
games at the Arena in accordance with section 9.5 of the Former
AMULA.
D. The NHL has notified the City and all interested entities
that, if the NHLfranchise for the operation of the Team (the
"Franchise") is not sold to a new ownership groupthat is committed
to keeping the Team in Glendale, the NHL will allow the franchise
to be sold
17319116.t4
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to a group that will be permitted to relocate the Team to
another city. The NHL has also notifiedthe City that it will not
continue as the manager of the Arena.
E. The Arena Manger and Team Owner have further represented to
the Crty asfollows: (1) the Team Owner's parent entity, IceArizona
AcquisitionCo. LLC, has negotiated anagleement with the entity that
owns all the Coyotes Newco and Arena Newco (the (\HLPurchase
Agreement') for the purchase of all of the membership interests in
each of CoyotesNewco and Arena Newco; (2) substantially
concurrently with the closing under the NHLPurchase Agreemen!
Coyotes Newco will be merged with the Team Owner, as a result of
whichthe Team Owner will become a member of the NHL and will hold
the Franchise for theoperation of the Team as an NHL hockey team
bearing the designation '?hoenix Coyotes" andthereafter the Team's
designation will be changed to "Arizona Coyotes" as soon as
possiblepursuant to applicable NHL rules; (3) Team Owner
accordingly is the only person that can assurcthe continued use of
the Arena by a NHL hockey team; and (4) subsequent to their
execution ofthis Agreement, Team Owner and Arena Manager,
respectively, hay be involved in (i) certainaffiliated merger
tansactions with Coyoes Newco and Arena Newco, respectively, and
(ii)tansactions that involve converting the surviving entities into
limited parrerships, with suchtansactions not requiring the consent
of the City upon the assumption by such surviving entitiesof all
obligations of Arena Manager and Team Owner in this Agreement, such
survivingentities therafter being Arena Manager and Team Owner,
respectively, for all purposes of thisAgreement and the
Non-Relocation Agreement.
F. Subject to the closing under the NHL Purchase Agreement the
City and the TeamOwner desire that the Team will play all of its
home games, commencing on the Closing Dateand continuing for the
tei:n specified in this Agreement (together with any additional
completeNHL hockey serisons as may occur dwing any extension of the
Term pursuant to thisAgreement), at the Arena subject to the terms
and conditions set forth in this Agreement and theterms of the
Non-Relocation Agreement, executed contemporaneously with ttris
Agreement.
G. The Team Owner has an exclusive agreement with Arena Manager
requiring theTeam Owner to.maintain the Team in Glendale for a
period of years coincident with the Term of,this Agreement, and
requiring Aena Manager to make the Arena available to the Team as
its"home" ice facility for the prrpose of playing the Team's
exhibitior regular and post-seasongames, guaranteeing the City the
additional revenue associated with having an NHL hockey teamuse the
Arena as its home ice facility.
H. As a result of the use of the Arena by the Tean as its "home"
ice facility, the Citywill realize the direct financial benefits
associated with having, at a minimum, forty-one (al)home hockey
games at the Arena, which benefits the City would not receive if
any Person otherthan the Arena Manager (as a result of its express,
contacfual obligations to the Team Owner)was to be is selected to
manage the Arena for the City.
L The City, acting through its City Council and Staff, has
determined that theservices to be provided by Arena Manager
pursuant to this Agreement are 'rofessionalseryices." This
Agreement requires the Arena Manager to provide professional
manageme,nt andconsulting services, in accordance with the City's
Code of Ordinances (Part [, Chapter 2, ArticleV, Division 2,
Section 2-138).
-2-t73t9 I 16.14
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J. The City, acting through its C Council and Stafl further has
determined thatAena Manager is the only Person that has the ability
not only to provide the professionalmanagement and consulting
services and expertise required by the City in connection with
theCity's ownership of the Arena, but to also assure the continued
use of the Arena by the Team.As such, engagement of Aena Manager
trough a sole source procurement is appropriate as noother
potential vendor could provide the same services, benefits and
assuances to the City. Sucha sole source procurement is authorized
by the City's Code of Ordinances (Part II, Chapter 2,Article V,
Division 2, Section 2-148), !f the procuement provisions of the
Code of Ordinancesare applicable to this Agreement notwithstanding
the professional natrre of the management andconsulting sewices to
be provided to the City by Arena Manager pusua$ to this
Agreement.The City's determination in this regard is supported by
the witten findings of the CityProcr:ement Officer and City Manager
as provided in the City's Code of Ordinances and in CityManager
Directive No. 30 (3-19-01).
K. The City, acting through its City Council and Staff, further
ha.s determined thatthe professional management and consulting
services and other benefits (including but notlimited to the
maintenance of the Franchise in the City and playing at the Arena,
the periodic useof the Aena for City Sponsored Events, the
opportunity to receive additional revenues as a resultof City
Revenue Souces and the City's avoidance of certain losses
antcipated if no NHL teamplayed its home gimes at the Arena) to be
received by the City as a result of its entering into thisAgreement
and Arena Manager's and Team Owner's performance prrsuant to and
rmder theterms and conditions of this Agreemen! have a value in
excess of equivalent to or, at aminimum, not grossly
dsproportionate to, the benefits conferred upon oi provided to
AenaManager and Team Owner by the City pursuant to this
Agreement.
L. The City has determined that it is in the best interest of
the City and its residentsto provide for the lease, professional
management, and us of the Arena Facility, and to providefor
professional consulting services to be provided by the Are,na
Manager, in the mannerdescribed in this Agreement. Such lease,
professional management, management consultationand use will
benefit the C and its residents by providing a substantial,
regular, and continuingutilization of the Arena Facility by the
Team Owner, by providing additional employmentopportunities within
the City, by increasing the City's tan base, by stimulating
additionaldevelopment on properties in the vicinity of the Aena
Facility, and otherwise.
M. The respective obligations of each of the Arena Manager and
the Team Ownerunder this Agreement and the Related Agreements,
including the Tean Owner's obligation toplay all of the Team's home
games at the Arena Facility, are unique and ae important to
thedevelopment and operation of properties in the vicinity of the
Arena Facility and to the well-being of the City and its residents
generally, and, with respect to the Team Owner, are personalto the
Team Owner and may be discharged only by the Team Owner.
N. In reliance upon and in consideration of the City's
obligations under thisAgreement and the Related Agreements, subject
to the closing of the NHL Purchase Agreementon or before August 5,
2013, ( the Arena Manager will require the Team Owner to
agree,pursuant to the Non-Relocation Agreement, to play all of its
home games at the Aena Facility,and (ii) the Arena Manager and the
Team Owner have undertaken their respective obligationsunder this
Agreement and the Related Agreements.
-3-173191 16.14
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AGREEMENTNO\ry THEREFORE, in consideration of the premises,
covenants, agreements and
obligations contained herein, the Paties enter into this
Agreement and agree as follows:
1. STATEMENT OF INTENT; DEFINITIONS; INTERPRETATTON.1.1
STATEMENT OF INTENTThe Parties agree that the following Statement
of Intent reflects the objectives and certain
of the principal eonomic terms of this Agreement which are more
particularly described in thisAgreement. In the event of any
inconsistency between a specific provision of this Agreementand
this Statement of Intent, the provisions of the specific provisions
of this Agreement shallcontrol. Unless the context otherwise
requires, capitalized terms used herein shall have themeanings
ascribed to such terms in Section 1.2 of this Agreement, or
otherwise parenthetically inthis Agreement.
1.1.1 Subject to an early termination right exercisable afrer
five (5) years(and on specified terms and conditions) and only upon
the occurrence of subsntial post-ClosingDate operating losses (.see
Section 3.3) and payment to the City of the amounts specified
inSection 3.3. of this Agreement, the Team shall play all of its
Home Games in the Aena Facility(seg Section 8.3.1(a).
l.l'.2 With respect to the Arena Facility and Arena Parking
Area,professional management and consulting services shall be
provided by the Arena Manager, theArena Sub-Manager or their
approved subcontractors Gee section 8.1 and 8.2).
1.1,3 Except for capital expenditr.ues to maintain and improve
the Aena(see Section 11.3), all Operating Expenses shall be the
responsibility of and strall be paid by theArena Manager (seq
Section 8.1).
t.1.4 The City shall pay the Management Fee to the Aena Manager
dwingthe Term (see Section 10.1).
1.1.5 The City shall receive (or, where noted, share in) certain
anticipatedrvenues. The revenues to be received by the City include
revenues derived from the followingsources and activities:
(a) A City Surcharge of not less than $3.00 on each
QualifiedTicket for a Hockey Event at the Arena Facil, with
increases in the City Srucharge based uponattendance (see Section
9, 1 .2(a)(i));
O) A City Surcharge of $5.00 on each qualified Ticket for a
non-Hockey event (ssg Section 9.1.2ft));
(c) A Supplemental Surcharge of $1.50 per Qualified
Ticketthroughout the Term applicable to all Events to be placed in
an escrow account which may bedawn upon by City to fund certain
revenue deficits on a Fiscal Year basis (see Section 9.1.3);
-4-l7319r 16.14
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(d) Parking revenues of$10 per car for each Hockey Event (abovea
$20,000 per-Event base payable ro the Aena Manager) (see section
s.2.1(e));
(e) Seventy five percent (75%) of parking revenues of $15 pel
carfor each non-Hockey Event ) (see Section 8,2.1(e));
( Rent-free use of the Arena for certain C Sponsored Eventsand
CommunityEvents (See Sections 8.9.2 and 8.9.3);
(g) All revenues (net only of Event-specific operating
expenses)for C Sponsored Events and Community Events (see Sections
8.9.2(e) and S.9.3(c));
(h) Twenty percent QlW of all income eamed by Arena Manageror
Team Owner, on or after the Effective Date, from the past and/or
fiture sale of ArenaNamingRiehts Gs Section 8.6.a@)O);
(i) All income received from the sale of naming rights for a
netv,smaller stage/theatre venue that may be constructed and used
within the bowl (main seating area)of the Arena Facility (see
Section 8.6.a&Xii)); and
) Annual fixed rent to be paid to the City in connection with
theuse by the Arena Manager and/or Team Owner of the use of the
Arena Facility and AenaParking Area in an initial amount of
$500,000 per year (scE section 6.6.1)-
The foregoing revenues are in addition to sales/tansaction
privilege taxes received onadmissions, concessions, constructiog
etc., relating to the Arena' as well as additionalsales/trarsaction
privilege ta,res and "bed taxes" generated by Westgate area
businesses or otherbusinesses vrithin the city and enhanced
employment opportunities.
1.2 Dpfinitions. As used in this Agreement, the following terms
shall have themeanings indicated unless a different meaning is
provided parenthetically or otherwise in theAgreement or unless the
context otherwise requires:
'.Account Recordstt means accurate records relating to the
maagement and operation ofthe Aren4 including records establishing
all arnounts received by the Arena Manager (whetheras Operating
Revenues or othenvise) and all amounts paid by the Arena Manager
(whether asOperating Expenses or otherwise) and records relating to
the Arena Accounts, including anyrecords maintained by aoy Arena
Sub-Manager and including records of all sums payable and/orpaid to
the City.
'rAdvertising' means all permanent and temporary mnorncements,
acknowledgments,banners, liquid electonic displays, monument and
other signs, show bills and other audio orvisual commercial
messages of any nature displayed, announced, delivered (for
exarnple, by ri-Fi or similar transmissions to phones, tablets or
other portable devices) or otherwise presented alin or on the Arena
or any portion thereo{, provided that Advertising shall not include
(a) anyAdvertising contained in the broadcasts, reproductions or
transmittals of Team games in anymedium or any Advertising of the
broadcasts, reproductions or tansmittals of Team games inany
medium, (b) the Naming Rights, (c) Arena announcements during the
course of Team
-5-l73l9tt6.l4
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games, or (d) the C's program advertisements. For clarity, (i)
under this AgreementAdvertising does not include any advertising
relating to the Team or the events occurring in theArena Facility
which are published, displayed, amounced or tansmitted in any
mediun otherthan by displa announcement or presentation a! in or on
the Arena or any portion thereof and(ii) any Advertising content
tansmitted on computers or other electronic oommunication
devicesowned by the Team Owner or Arena Manager shall not, by
virtue of the fact that such computersor devices ae Personal
Propefy, be deemed to Advertising "displayed, announced or
otherwisepresented at, in or on the Aena Facility or any portion
thereof " for purposes of this definition.
ttAdvertisins Agreementtt means any contract or agreement
entered into by or on behalfof the Arena Manager for
Advertising.
"@'' of a specified Person means a Person who (a) controls, is
directly orindirectly controlled by, or is under common control
with, the specified Person; (b) owns,directly or indirectly , l0o/o
or more of the equity interests of the specified Person; (c) is a
generalpartter (if the specified Person is a partrership), managing
member or manager (if the speciflredPerson is a limited liability
company), officer, director, non-financial institution trustee
orfiduciaryof the specified Person or of any Person described in
clause (a) or (b) above; or (d) is amember of the Irnmediate Family
(gg- any spouse, son, daughter or parent of any individual
(byblood, adoption or by marriage), or any trust, estate,
parErership, joint venture, limited liabilitycompany, corporation,
or any other legal entity directly or indirectly contolled by such
spouse,son, daughter or parent) ofthe specified Person or the
Person described in clauses (a) through (c)above. A Person shall be
deemed to control another Person for the purposes of this
definition ifthe fist Person possesses, directly or indirectly, the
power to direct, or cause the direction of, themanagement and
policies of the second Person, whether through the owneship of
votingsecurities, equitable interests, common directors, tnstees or
ofrcers, by contact or otherwise.
rrAnnual Budget" means an annual budget repared by the Arena
Manager in the formprovided in Exhibit "G" and zubmitted to the
City and the Tean Owner for their reasonableapproval as stated
herein) for a given Fiscal Year or pafal Fiscal Year, as
applicable, projectingin reasonable detail for such Fiscal Year (i)
the Operating Revenues and Operating Expensesestimated in good
faith by the Arena Manager; ( expindtures for Capil
Impnrvementsestimated in good faith by the Arena Manager; (iii)
cash flows and timing of cash flowsestimated in good faith by the
Aena Manager; (iv) projected revenues to be disibuted to theCity,
and (v) such other amounts or information as may from time to time
be reasonably requiredby the City within reasonable time limits
while any Manageme,lrt Fee is payable hereunder.
ttApplicable, Lawt' means any law, statute, ordinance, rule,
regulation, order ordeterrrination of any Govenrmental Authority,
or any recorded restictive covenant or deedrestriction, affecting
the Arena, including those applicable to environmental, mning,
buildingcode, health and safety and other simila matters, as the
same may be amended from time-to-time.
rsArenaD means, collectively, the Arena Facility and Arena
Parking Areas.ttArena Accguntt'means any one or more of the
accounts described in Section 8.10.
t73l9l I 6.14
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"4Ig4g-&gi!i[" shall mean the building in the City cunently
known as'Tobing.comAena" and all foundations, strucflual elements,
interior aleas, all improvements, furnishings,fixtures and
equipment (excluding all Personal Property and all fumishings and
equipmentowned by suite holders and temporary furnishings owned by
Persons stgng Events at theArena) of whatever natue located therein
or thereon and all exterior axeas, including the plazaand other
exterior areas adjacent to the Arena Facility, and located on Lot 9
of Westgate, andexclusively serving patons attending Events at the
Arena Facitity, all as shown on Exhibit."A"and Exhibit "B" to this
Agreement. The cooling plant serving the Arena is specifically
includedas part of the Arena Facil.
"Arenr Mintenance Standard'means a standard of maintenance tha!
as of the time ofapplication, meets or exceeds the quality of the
maintenance of (i) the multi-purpose facilcnrrently known as "US
Airways Aena" in Phoenix, Aizona (to the extent that
personalobservations and./or records ae available to the Parties
for the pqpose of detersrining the qualityof maintenalce; to the
extent not availablo, ffiy other compaable multi-prrrpose arena for
whichsuch records are available); or (ii) such other multi-purpose
arena to which the Parties may fromtime to time, in their
respective sole discretion, agtee in v'trriting. In the event of a
conflictbetween the Management Performace Standads set foith on
Exhibit "C" to this Agreement andany Arena Maintenance Standard,
Exhibit "C" shall control.
r'Arena Manaser Afliliate Contract" means any contract or
agreement relating to theArena to which both the Arena Manager and
an Afliate of the Arena Manager or the TeamOwner are parties, other
than this Agreement, the Non-Relocation Agreement and the
RelatedAgreements. For clarity, agteements on the contributions of
capital by owners, allocations ofdistibutions among owners, the
allocations of intemal rights and control among the managersand
owners with respect to the Arena Manager or the Team Owner shall
not be Arena ManagerAffiliate Contacts, and no payments by Arena
Manager pursuant to such agreernents orcontracts shall be deemed
Operating Expenses.
"Aren Manaeer Assignee'' shall have the meaning set forth in
Section 12.3.
"Are,na Manaser DefaultD means the occurrence of any of the
following events:
(a) If the Arena Manager fails to make any payment or
distributionto be i'nade by the Arena Manager hereunder at the time
and in the manner required by thisAgreement, and such failure is
not cured within 30 days after the Arena Manager's receipt ofnotice
of such failure from any other Party to this Agreement;
(b) If any representation or warranty made by the Arena
Managerin this Agreement at any time proves to have been incorrect
in any material respect a.s of the timemade, and if the Aena
Manager fails to cause such representation or \ilarranty to become
correct\vithin 30 days after the Arena Manager's receipt of notice
from any other Party o thisAgreement that such representation or
waranty was incorrect; provided however, that if it isreasonably
possible to cause such representation or warranty to become correct
but it is notreasonably ossible to cause such representation or
warranty to become correct within suchthirty-day period, then such
cure period shall be for a period of time not to exceed 180 days
solong as the Arena Manager (i) commences to cause such
representation or waranty to become
-7-r73 l9l t6. 4
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colrect within 30 days after the Arena Manager's rece of such
notice, and (ii) thereafterdiligently continues to cause such
representation or warranty to become conect; or
(c) If the Arena Manager materially breaches any covenant
orprovision of this Agreemenf and such breach is not crued within
30 days after the Are,naManager's receipt from any other Party to
this Agreement of notice of such breach; provided,however, that if
it is reasonably possible to cure such breach but it is not
reasonably possible tocwe such breach within such thirtyday period,
then such crue period shall be for a period oftime not to exceed
180 days so long as the Arena Manager (i) commences to cure such
breachwithin 30 days after the Arena Manager's receipt of such
notice, and (ii) thereafter diligentlycontinues to cre'such
breach.
'Aren Manaser Eventtt means an Event other than a Hockey Event
or a CitySponsored Event that the Arena Manager secures for the
Arena.
rAIena Manaeei Withdrawalt'means any of the following
events:
(a) The Arena Manager resigns;(b) The fuena Manager is
dissolved;G) An Arena Manager Default or Team Owner Default
exists
urder this Agreement o a Team Default exists under the
Non-Relocation Agreement, and theCity elects to sectue a
Replacement Arena Manager or the C elects to act as
ReplacementArena Manager, subject to the Team Owner's first right
to secure a Replacement Aena Manageras set forth under Section
19.3.3;
(d) The Arena Manager commences, or has commenced against it,any
case, proceeding or other action under the United States Brkrupy
Code, or any otherApplicable Law relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking(i) to have
an oder for relief entered with respect to the Arena Manager; (ii)
to adjudicate theAena Manager bantnupt or insolvent or seeking
reorganization, winding up, liquidation,dissolution, discharge,
composition, or other relief with respect to the Arena Manager or
thedebts of the Aena Manager; or (iii) the appointment of a
receiver, tustee, custodian, or similaofhcial for the Arena Manager
and such action is not discharged within one-hundedtwenty(l2O) days
of having been filed; provided, however, such action shall not
constitrfe anAena Manager Withdrawal fo so long as Arena Manager is
paying the Base Rent and othersums required to be paid under this
Agreement and is performing all of its other covenants,agreemrts,
obligations, liabilities and duties under this Agreement; or
G) The Arena Manager is determined by a court order to
beinsolvent; provided, however, such action shall not constitute an
Arena Manager Withdawal forso long as Arena Manager is pag the Base
Rent and all other sums required to be paid underthis Agreement and
is performing all of its other covenants, agreements, obligations,
liabilitiesand duties rurder this Agreement; provided however that
the City does not waive any right orremedy with respect to any Aena
Manager Default.
l73l9t 16.14
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r(Arena Namins Rights" means the right to name the building (and
not any componentsthereof) in the City currently known as
"Jobing.com Arena".
"Arena Parkine Ares" means the aeas shown on Exhibit "4" and
Exhibit "B" to thisAgt.rot"ffie no ress than 5,500 purking-qpace,
lo"ated wittrin 2,640 feet ofany point on the exterior of the Arena
Facil which shall be used for parking of the vehicles ofArena
patrons for each Event during the Term.
"Arena Parkinq Area R 'means as described in Section
S.2.1(e).r(Arena Parkine Riehts" means (i) the right to directly
charge for parking in any space
or area which is a part of the Arena Parking Arca (ii) the right
to negotiate and enter intoagteements for the sale or license of
Parking Advertising the Arena Parking Area; and (i) theright to
negotiate and enter into agreements for the sale or license of
Naming Rights inconnection with all or part of that portion of the
Arena Parking Area.
"Arena Sub-Managert' means a qualified arena manager acceptable
to and approved bythe City in its reasonable discretion, to whom
the Arena Manager may, from time to time,delegate all or a portion
of its duties and responsibilities under this Agreement.
"Arena Theatef'means as defined in Section S.6.4(b).rBusiness
DavD means any day other than a Saturda a Sunday or a public or
bank
holiday or the equivalent for banks under the laws of the State
of Anzona or observed by theCity of Glendale. Use of the word
"day", as opposed to "Business Day'', means a calendar day.
r.eapital Improvements'means any or all installations,
alterations or improvements ofor to, and all purchases of
additional or replacement fu:niture, fixfures, machinery or
equipmentfor, the Aena Facility, the depreciable life of which,
according to GAAP, is in excess of one (1)yeat.
ttCitv Defaullt" means the occuffence of any of the following
events:
( If the City fails to pay when due, for any reason, any
amountpayable by the City hereunde including any portion of the
Management Fee, and such failwe isnot crued within 30 days after
the City's receipt of notice of such faihe from any other Party
tothis Agreement;
( , *, representation or waranty made by the City herein atany
time proves to have been incorrect in any material respect as of
the time made, and if theCity fails to cause such representtion or
warranty to become correct within 30 days after theCity's receipt
of notice from any other Party to this Agteement that such
representation orwarranty was incorrect; provided, however, that if
it is reasonably possible to cause suchrePrsentation or warranty to
become correct but it is not reasonably possible to cause
suchreptesentation or \atranty to become correct within such
thirtyday period, then such cure periodshall be for an unlimited
period of time so long as the City ( cormences to cause
suchrepresentation or vvarrrity to become correct within 30 days
afrer the City's receipt of such
l73l 91 l6_14
-9-
-
notice, and (ii) thereafter diligently continues to cause such
representation or wananty to becomecorrect;
(h) If the City commences a proceeding under Chapter 9 of
theUnited States Bankruptcy Code; or
( If the City materially breaches any covenant or provision
ofthis Agreement, and such breach is not cured within 30 days after
the City's receipt from anyother Parfy to this Agleement of notice
of such breach; provided, however, that if it is reasonablypossible
to cure such breach (excluding any failure to pay any portion of
the Management Fees,which shall only be subject to subpart a.
above) but it is not reasonably possible to crue suchbreach within
such thirty-day period, then such cure period shall be for an
untimited period oftime so long as the City (i) commences to cue
such breach within 30 days afrer the City's receiptof such notice,
and (ii) thereafter diligently continues to cure such breach.
"@" shall have the meaning set forth in Section 7.6."@'means (i)
the receipts from the City Surcharge, (ii) the receipts
from the Supplemental Surcharge arnounts to which City is
entitled purswu to the terms of thisAgreemen! (i) the City's share
of Arena Parking Area Revenue, (iv) the City's portion ofrevenues
received by the Arena Manager with respect to the sale or license
of Naming Rightspursuant to Section 8.6.4; and (v) revenues derived
fiom City Sponsored Events.
"Citv Sponsored Eventt shall mean a City Revenue Event or a
Community Event.
" ' means those expenses that are directly attributable toCity
Sponsored Events, l'.e., those that would not have been incu:red
but for the C SponsoredEvents, including the cost and expense of
utilities, insurance, cleaning, repairs and personnel, butnot
including rent or other charges relating to the use of the Arena
Facilities. For clarity, onlypayments or other considerations to be
made or provided by the Arena Manager that (i) arecalculated solely
on the basis of sales made or transactions completed during a City
SponsoredEvent directly relating to suoh City Sponsored Event or
(ii) are payable solely because a givenCity Sponsored Event is held
shall be "directly attributble" to such City Sponsored Event.
'rCity Shorffall" means as defined in Section 3.3.t'@SurgI"
shall have the meaning set fof in Section 9.1,tt@'means an account
established and maintained for tlre beneft
of the Crty as one or more ttxt accounts that require the
signature of only the City forwithdawals at a federally-insured
institution(s) having offices in the Sta of Arizona for thedeposit
and disbusement of City Surcharge.
sCity's KnowledeeD means the actual knowledge of the City
Manager, the Acting CityManager (if applicable), or the Glendale
City Council as a whole.
[email protected] means any claim, cost darnage, domand, judgment,
award, expense,loss, obligation or other liability (including
reasonable attorneys' fees), including those relating
-10-1?3191 l6-14
-
to property, injury to or death of persons, loss of income and
losses under workers'compensation laws and benefits.
rClosingD is the occunence of the satisfaction or waiver of all
conditions to closing setfortlr in Section 17.2, as evidenced by a
written acknowledgement of all Parties.
r'Closing DateD means the date of Closing.
"eeu unitv Event'means an Event at the Aena Facility (i) which
is sponsored or co-sponsored by the City; (ii) which is conducted
or presented as a service to the City, its residents,or a
non-profit organization; ot (iii) which does not feature performers
or performances normallybooked in arenas comparable to the Aena
Facility; or (iv) which the furancial benefits (if any) ofwhich e
received or distributed to the C or to a non-profit, civic or other
communityorganization r to the City for commrnity-oriented programs
or puq)oses; and (v) which in allcases are reasonably approved by
the Arena Manager.
".CoocessigE" means the sale, furnishing or renting of foods,
beverages (includingalcoholic beverages), apparel, souvenirs,
programs (excluding progrrm Advertising) or othergoods or
merchandise by a Peson (other than the Team Owner at the Team
Retail Stores) in, atfrom or in connection with the operation of
the Arena, whether sold, fumished or rented fromshops, kiosks or by
individual vendors circulating in or about the Arena" including any
restaurant(whether open to the public or restricted to members
thereoQ, club, membership dining room orother facility for the sale
of food and beverages, and including sales to fill orders for any
suchitems by any Person other than the Team Owner at the Aena
Facility (whether received by mail,facsimile, telephone or other
medium of communication).
"Concesions Agreement' means any agreement or contact for the
rigt to engage in orconduct one or more Concessions.
"DsficitAmqU" means as defined in Section 9,1.3.
"Early Termination DateD means as defined in Section
3.3.rEmersency' means any condition or situation that presents an
imminent and significant
threat (or if not immediately acted upon will present an
imminent and signifrcant tbreat) to thehealth or safety of u.sers
of the Arena or to the shuctural integrity of the Arena Facil.
rrEvent' meau any revenue or non-revenue producing sports,
entertainmen! culfural orcivic event or other activity (including
related event set-up and take-down) which is either (i)presented or
held in the bowl (main seating) portion of the Arena Facility or
any part thereof, or(ii) presented or held in aoy other portion of
the Aena Facility in a marrer that precludes the useof the bowl
(main seating) portion of the Arena Facility for other events o
activities; or (iii) heldwithin any portion of the Arena and which
involves a Fee activity, any form of entry (1.e., ticketsales,
admissions), the sale of goods, displays or gatherings (such as
conventions, tade shows,etc.) even if they do not involve use of
the bowl aea. If such event or activity is presented in itsentirety
more than once dtring a given day, all such presentations durng
such day shall bedeemed one Event. If such event or activity is
presented in its entirety on more than one
l73l91 16.14
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consecutive day, each day on which such event or activity is
presented shall be deemed aseparate Event. For purposes of this
paragraph, any event or activity that commences on a givenday and
is completed within the four hows immediely fotlowing the end of
such day shall bedeemed to have been presented in its entirety on
the day such event or activity commenced.
"Dvent of Defagl!' means a Team Owner Default, Arena Manager
Default, or CityDefault and refers to an event that exists after
the expiration of all applicable notice and cueperiods and periods
of Force Majeure.
Exclusive Arena Manaqer Revenuestt means revenues that ae not
Exclusive CityRevenus or derived from City Revenue Sowces, and that
are (i) revenues from or in connectionwith Concessions at Hockey
Events and, as applicable, other Events, (ii) revenues from or
inconnection with food and beverage services provided by Arena
Manager at Hockey Events and,as applicable, other Events, (iii)
revenues from or in connection with Naming Rights other
thanrevenues to be distributed to the City purzuant to Section
8.6.a); (iv) revenues from or inconnection with any Advertising,
(v) Suite License Revenues and revenues from the licensing
ofPremium Seats, including any "premium,"'remium fee," or'ersonal
seat license fee", (vi) butare not Exclusive Team Revenues or
Exclusive City Revenues.
sExclusive Citv Revenues' means ( all Impositions of the City,
(i City Srucharge,(iii) the Supplemental Swcharge receipts to which
C is entitled pursuant to the terms of thisAgreement, and (iv)
interest or other income derived from the inveshnent of any of
theforegoing.
sExclusive Team Revenues" means all ( Hockey Ticket Reces (minus
CitySurcharge and Impositions); (ii) revenues from or in connection
with the operation of TeamSales generated by Tean Retail Stores;
and (i) sponsorship revenues and recets, includingtelevision and
radio broadcasting, promotional and other sponsorship fees received
or collectedin connection with the conduct of Hockey Events
(excluding, for clarity, the Naming Rights); allofwhich shall be
excluded from Operating Revenues.
"Exqlusve Team Spacestt means the portions of the Arena Facility
designed andconstructed for the exclusive use by the Team Owner,
including the Team locker room (the qpacein the Aena Facility
designed and constructed for the exclusive use by the Team Owner as
ahome team locker room, including dressing, locker, shower, lounge,
taining, exercise and videocoaching areas), the Team Owner's
offrce, the Team's storage areas, and the Tearn Retail Stores.
"Exculpatory Laneuage" means the following language:
[Insert narne of exculpating Person] acknowledges and agees that
(i) this [inserttitle of contract or agreement] imposes
no'contactual obligation on the City ofGlendale; (iD in the event
of a default under this [insert title of contact oragteement], of
any kind or nature whatsoever, [insert name of exculpating
Person]shall look solely to [insert name of the Aena Manager or the
Team Owner, asapplicablel at the time of the default for remedy or
relief; and (iii) no electedoffrcial, officer, employee, agent,
independent contactor or consultant of the Cityof Glendale shall be
liable to [insert name of exculpating Person], or any
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t73lgtl6.t4
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successor n interest to [insert name of exculpating Person],
with respect to this[insert title of contact or agreement].rrEee
ActivitvD means any Event or other activity at the Arena Facility,
the admiSsion to
which is contolled by a Ticket.
"Eiscal Oua{tertt means a thee month period commencing on the
fust day of January,April, July or October, and ending on the last
day of March, Jwre, Septenrber or December,respectively
"!!ge' means a 12 month period commencing on July I and ending
on June 30.ttEetce Maieure" means any of the following that
prohibits, materially interferes with or
delays the occupancy of the Arena Facility or prohibits or
materially interferes with theoccupancy, operation or use of the
Arena Facility or any material portion thereof or theperformance of
any applicable duty of a Party under this Agrenent after the
Effective Date:NHL Players strikes and labor disputes; lock-outs;
acts of the public enemy; the enactment,imposition or modification
of any Applicable Law which occlus afrer the Effective
Date;confiscation or seizure by any government or publio authority;
injunctior restaining order orother court order or decree,
initiative or referendum action, wars or war-like action
(whetheractual and pending or expected, and whether de jure or de
facto); blockades; insurrestions; riots;civil disturbances; unusual
or extraordinary governmental resictions; epidemics;
landslides;earthquakes; fires; hurricanes; floods; wash-outs;
explosions; failure of major equipment ormachinery (other than that
cause by ordinary wea and tear or faihre of adequate maintenanceand
repair), or shortages of material or labor (excluding those caused
by lack of firnds), wheresuch equipment or machinery, material or
labor is critical to the occupancy, operation or use ofthe Arena
Facility for its intended pqposes; nuclear raction or radiation;
radioactiveoontamination; or any other cause, whether of the kind
herein enumerated or otherwise, which isnot reasonably within the
contol of the Party claiming the right to alter, delay or
postponeperformance on account of such occurrence, but specifically
excluding any furancial condition,lack of finds, lack of furancing,
insolvency or bankruptcy of such Party.
(GAAP" means Generally Accepted Accounting Principles as
determined by theFinancial Accounting Standards Board and the
Governmental Accounting Standards Board.
t'@tt means any federal, sate, and local agency,
departmen!commission, board brueag administrative or regulatory
body or other govemmentalinstumentality having juisdiction over the
Arena Facil (or any portion thereof) and ttretransactions
contemplated by this Agreement.
"Hazardous Materialtt means any chemical, element, compound,
mixfure, solution, orother substance that is prohibited, limited,
governed, or regulated by any applicable federal, stateor county,
municipal, local or other stafute, law, ordinance or regulation
that related to or dealswith the protection of human health, safety
or the environment, and any rules, regulations orguidelines adopted
or promulgated pursuant to any of the foregoing as they may be
amended orreplaced as of the Effective Date or the Closing Date,
including by way of example and notlimitation substances designated
as "hazardous" or 'toxic" under Section 102 of the
-13-t7319t16.14
-
Comprehensive Environmental Response, Compensation, and
Liability Act; any hazardoussubstance or toxic pollutant designated
under Section 31I(bX2Xa) or Section 307(a) of the CleanWater Act;
and any imminently hazardous chemical substance or mixture with
reqpect to whichthe Environmental Protection Agency Administator
has "taken action uder" Section 7 of theToxic Substances Conhol
Act.
"gfgyg4lD means any of the following when played or conducted al
the AenFacility: (i) any Home Game (including any related wann-up
sessions); (ii) any All-Star Gane(including any related wann-up
sessions); or (iii) any Hockey-Related Event, including pre-season
games, exhibitions, games between two visiting teams, playoff
games, other post-seasonhockey games.
6lHockw Event Permitted Uses" include the following:
(t) Hockey Events;(k) The use by the media for watching,
broadcasting, an6 reporting
on Hockey Events and other Team Owner activities; and
(l) The sale and distribution of Hockey Tickets."Eockey Event
Spaces' means all .portions of the Arena Facility, other than
the
Exclusive Team.Spaces.rllockev-Related Event" means any Event
(other than a Pre-season Game, Regular
Season Gate, Play-off Game or All-Star Game) conducted,
authorized, permitted, sponsored orco-sponsored by the Team Owner,
including any award ceremony, championship celebration,promotional
perfonnance or festival, breakfast,luncheon, dinner, ball,
demonsation, exhibition,instruction or workshop. Notwithstanding
the foregoing the Hockey-Related Events describedin this defnition
sball not exceed four (4) such Hockey-Related Events in any Fiscal
Yearwilhout the consent of the City (which consent may not be
nnreasonably withheld), and shall besubject to the Scheduling
Procedures.
"Egg[glqt means all then applicable NHL policies, procedures,
provisions, rules,regulations, by-laws, contracts and directives
that govern the rights, duties, privileges andobligations of
members of the NHL.
"EqgBggg" means a period beginning on the date ofcially
promulgated by theNHL as the first day of aining camp for a given
NHL hockey season and ending on the date onwhich the last NHL P-off
Game is played for such season.
"Hockev TicketD means a Ticket for a Hockey Event.t'Hockev
Ticket Receiptt means the gross amourit of money received by the
Team
Owner om the sale of Hockey Tickets, including Hockey Tickets
for Suis and for PremiwnSeats and any Clty Surcharge assessed on or
charged with respeot to any Hockey Ticket
l73l9l 16.14
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..@'meansanNHLPre-seasonGame,anNHLRegularSeasonGameoranNHL
Play-off Game in which the Team is designated as the'home
team".
rrlmnosition(s)' means all governmental assessments, franchise
fees, transactionprivilege and use taxes, excise taxes, license and
permit fees, levies, charges and tanes, generaland special,
ordinary and extraordinary, of every kind and nature whatsoever
(inespective of thenatwe thereof, including all such charges based
on the fact of a transaction, irresrective of howmeasured) wch at
any time dwing the Term may be assessed, levied, confirmed or
imposedupon: (a) the Arena or any portion thereof; and O) any
payments received by the Arena Manageror the Team Owner from any
Person using or occupying the Arena or any portion thereof.
r'Interest Ratett meaN the annual interest rate tlnt is
announced from time to time byWells Fargo Bank, N.A. or its
successor as its "prime" lending nte, pltx 2Yu If, at any
timeduring the Term, Wells Fargo Bank, N.A. or its successor no
longer announces a 'rime"lending rate, then the Interest Rate shall
be the arurual interest rate that is announced by anational bank
reasonably selected by the Paties and having an office in Phoenix,
Arizona assuch national bank's 'rime" lending rate, plus 2olo. The
lnterest Rate shall change and beadjusted upon each announosment by
Wells Fargo Bank, N.A. or its successor (or any substifutenational
bank selected by the Parties pursuant to this definition) of each
change in the 'rimetate" used to determine the Interest Rate in the
manner described in this definition. Except asotherwise expressly
required by the terms of this Agreement, all interest to be paid
prxsuant tothis Agreement shall be paid at the Interest Rate and
shall be computed on the basis of a 30-dayyear consisting of 12
months of 30 days each and the actual number of days in any partial
month.
rrland" shall mean the land parcels on which any portion of the
Aena Facility andArena Parking Area are located.
"L:icense'' means any agreement or contract (other than Tickets)
entered into by theAena Manager pursuant to the terms of this
Agteement for the use of the Arena Facility (or anyportion thereof)
with any Parfy (other than the Team Owner with respect to Hockey
Events andthe C with respect to C Sponsored Events) for a limited
period of time (no more than 14consecutive days), including any
agreement or contact with a promoter or sponsor for Events orother
activities at the Arena (other than Hockey Events and City
Sponsored Events), butexcluding the following: (i) this Agreement;
(ii) Concessions Agreements; (iii) Suite LicenseAgreements; (iv)
Premium Seat Ageements; (v) Advertising Agreements; and (vi)
NarningRights Agreements. tt!!ry'' means a Person entitled to use
the Arena or a portion thereofprrsuant to a License.
6Manasement tr'ee' shall mean Fifteen Million Dollars
($15,000,000) per Fiscal Yearpayable pursuant to Section 10,1,
subject to all other terms and conditions of this Agreement.
t'@ance Standards" shall mean the performance standards for
theArena Manager and any Arena Sub-Manager, as set forth and
described in Exhibit "C" attachedto this Agreement.
"MediationD means the process by which a mediation takes place
under this Agreementas provided in Section 2l below.
! 73 19l I 6.r4
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*!|!9g!!A!gf' means the individual selected by the Parties in
accodance with theMediation procedures established herein to
attempt to resolve a dispute.
"Nam!ng-Ri!g' means the exclusive rights to designate or assign
a brand, company,product or other name to, or have a name
association with or sponsorship of, the following: oneor more
portions (or all) of the Arena Facility and Aena Parking Area
including the fuenaFacility and fuena Parking Area; concourses
within the Arena Facility; the rink in the ArenaFacility; panels,
walls; media boards; scoreboards; equipment; entances; exits;
landscaping;pavilions; theaters, stages, atfractions; service
areas; Team Owner Retail Stores; clubs;seating; communicalion
systems; audio and video systems; Team mascots; Zambonis@;
Teamperformers; Team ticket stock; and directional signage.
Nqmine Rights Agreementtt means any contract or agreement
entered into by or onbehalf of the Aena Manager forNaming
Rights.
(NHL" means the National Hockey League, and any successor or
assignee of theNational Hockey League, or, if there is no National
Hockey League or successor or assignee thenoperating, any other
hockey-related associatior league or other group or entity with
which theTeam Owner is affiliated.
"Non-Relocation Aere ' means the Non-Relocation Agreemeng dated
as of theEffective Date, by and among the City, the Aena Manager
and the Team Owne.
r(Non-Hockev Events" means Events other than Hockey
Events,(Notice of Team Owner Assisnment" shall have the meaning set
forth in Section
12.1.3.
(rOperatinq Accounttt means one or more depository accounts
established andmaintained for the benefit of the Arena Manager, the
Team Owner, and the City at a federally-insured institution(s)
having offices in the State of Anzona for the deposit ard
disbursement ofOperating Revenues.
"Qperatinq Expensed'means all expenses or obligations paid
directly or incurred by oron behalf of the Arena Facility or the
Aena Manager with respect to, or which are reasonablyallocated to,
the management and operation of the Arena Facility during the Term
(all of whichshall be the responsibility of the Arena Manager
except to the extent specifically otherwise setforth herein),
including: costs incurred in performing agreements and conacts
pertaining to themanagement and operation of the Aena Facility;
Impositions; all expenses incured to obtainOperating Revenues;
salaries, wages and benefits of all personnel engaged in connection
with theoperation of the Arena Facility, including event staff and
temporary staff; human resourcesupport services and taining and
development expenses; contact labor expenses; maintenanceand repair
expenses; utility costs and expenses; deposits for utilities;
common area maintenanceexpenses payable prusuant to any covenants,
conditions or restictions applicable to the landupon which the
Arena Facility is located (as described in Exhibit "8") or any
portion thereofwhen used for Events; the Aena Parking Area or any
portion thereof; telephone expenses;expenses incurred under
Licenses; telescreen, video or scoreboad operation expenses;
dues,
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membership and subscription expenses; security expenses
(including expenses incuned under theSafety and Security
Agreement); management fees; audit fees; legal fees; other
professional fees;refuse removal expenses; cleaning expenses; sales
ta,xes; costs of offroe and other materials,supplies and equipment;
Ticket commissions (other than Ticket commissions for Hockey
Eventsand City Sponsored Events); insurance premiums and bond
charges (including premiums andcharges for fidelity/employee
dishonesty bonds); data and information processing and
storageexpenses; advertising, marketing and public relations
expenses; expenses and costs incrrred inthe production and
promotion of Events and other activities at the Arena Facility
(other thanexpenses and costs incuned in the promotion of Hockey
Events and City Sponsored. Events);pest contol expenses; Arena
Facility related entertainment experses; employment fees;
freightand delivery expenses; expenses for leasing, maintaining and
repairing equipmen! credit anddebit facility costs and expenses and
telecheck fees and expenses; tavel, lodging and related
out-of-pocket expenses properly allocable to the operation of the
Arena Facil, including promotionof the Arena Facility, conferences,
facility management seminars and classes; and any Claim orLoss
(other than as expressly set forth in this Agreement) relating to
the Aena Facility;provided, however, that amounts on account of the
Exclusive City Revenues or Exclusive TeamRevenues that are received
for and paid to the City or the Team'Owner respectively by the
AenaManager shall not be included as Operating E4penses; firther
provided that expenses orobligations, to the extent incured or paid
on behalf of Team Owner or to the extent reasonablyallocable to the
operation of the Team Owner's business, shall not be included as
OperatingExpenses. Operating Expenses do not include expenses
allocable to the Team Owner underGenerally Accepted Accounting
Principles or other reasonable allocation princples, includingbut
not limited to allocations pursuant to the NHL's Collective
Bargaining Agreeme,nt.
Any Operating Expenses that relate to a period of time after the
Termination Date shallbe prorated between the City and the Arena
Manager so that the City shall pay the portion of theOperating
Expenses applicable to the period after the Termination Date, and
the Arena Managershall pay, pursuant to this Agreement the portion
of the Operating Expenses applicable to theperiod drring the
Term.
"Operatins Revenuestt means all revenues collected or otherwise
received by the AenaManager from the management and operation of
the Arena Facility (including all ExclusiveArena Manager Revenues,
but excluding amounts received on account of the Exclusive
CityRevenues and Exchsive Tean Revenues and any interest earned on
any of the foregoing), asdetermined on an accrual basis in
accordance with GAAP, Operating Revenues do not includsrevenues
allocable to the Tean Owner rurder GAAP or other reasonable
allocation principles,including but not limited to allocations
pursuant to the NIIL's Collective Bargaining Agreement.
('Parking Advertisins" means advertising on all or part of the
Arena Parking Area.tt@i4gs'means the gross revenue received by
Arena Manager from the Aena
Parking Aeas om all revenue sources other than Parking
Advertising and Arena NamingRights governed by Section 8.6.4(b)
ofthis Agreement.
(6Person" means an individual, general or limited parErership,
corporation, joint stockcompany, tust (including a br:siness rrst),
unincorporated assosiation, joint ventwe, limitedliability company,
Govemmental Authority or other entity,
-17-r73l9l I 6.14
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'fPersonal Propertytt means all movable items (not fixtues)
owned by the ArenaManager, the Team Owner, any Afliate of the Arena
Manager or Team Owner, or the TeamOwner's players located vithin or
on any portion of the Arena Facility or Aena Parking Areas.
"BElEL@" means any ice hockey game (i) in which the Team is a
participant; (ii)which, under the Hockey Rules, is classified as a
"play-off game for the NHL (Stanley Cup)ohampionship; and (iii)
which is, under the Hockey Rules, a 'home game" of the
Team,including, in the Team Owner's sole discretion, any related
pre-event, intermission or post-eventpromotion, competition,
performance, autograph session, show or other entefainment or
activitypresented at the Arena Facility for which there is no
admission charge other tban the price of therelated Hockey
Ticket.
sPremigm Seat'means any seat (excluding any seat in a Suite, but
inoluding restauan!bar and simila seating) in the Arena Facility
that has services or arenities that ae not availableto general
seating in the Arena Facility and for which the licensee thereof
pays a premium overthe price for general seating pr:rsuant to a
Premium Seat Agreement.
.rPrniqrn Seat Agreement' means written contracts or agreements
for (i) the use ofPremium Se(s) for Hockey Events, and (ii) the
first right to pr:rchase the use of such PremiumSeat(s) for all
other Events except Commnnity Events, during the Term.
"Pre-season Game" means any ice hockey game (i) in which the
Team is a partioipant;(ii) which is scheduled to be played prior to
the portion of the Hockey Season promulgated bythe NHL as the
regular season; and (iii) which is, under the Hookey Rules, a "home
game" of theTeam, including, in the Team Owner's sole discretion,
any related pre-event, intermission orpost-event promotion,
competition, performance, autograph sessior show or other
entertainmentor activity presented at the Arena Faoility for which
there is no admission charge other than theprice of the related
Hockey Ticket.
"Qualified Ticket" means a Ticket to a Fee Activity for which
(i) the Team Owner, witlrrespect to Hockey Events; (ii) the Arena
Manager ot sponsor or promoter, with respct to TeamRevenue Events,
City Revenue Events and other Fee Activities that ae not Events; or
(iii) theCity, with respect to City Sponsored Events, receives
valuable consideration (whether in moneservices, goods or other
value), Any Ticket for which (i) the Team Owner, with respect
toHockey Events; (ii) the Arena Manager or the sponsor or promoter
with respect to TeamRevenue Events, City Revenue Events and other
Fee Activities that arc not Events; or (iii) theCity wittt respect
to City Sponsored Events, (a) receives no value, or (b) receives
money (but notany other services, goods or other value) fot such
Ticket in an amount less than 25o/o of the rctaiIprioe stated on
the face of such Ticke! shall not be a "Qualified Tickef';
provided, however, that,if the average number of Tickets described
in the immediately preceding clauses (a) and (b) thatae distibuted
by the Team Owner for each Hockey Event (other than Hockey-Related
Events)in a given Hockey Season exceeds 1,000, then the number of
Tickets by which the averagenumber of Tickets described in the
immediately preceding clauses (a) and (b) disnibuted by theTeam
Owner for each Hockey Event in such Hockey Season exceeds the
average of 1,000Tickets per Hockey Event in such Hockey Season
shall be deemed "Qualified Tickets", unlessthe City and the Team
Ownermutually agree otherwise.
17319lL6,t4
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r(Regular Season Gamett means any ice hockey game (i) in which
the Team is aparticipant; (ii) which is scheduled to be played
druing the portion of the Hockey Seasonpromulgated by the NHL as
the regular season; and (iii) which is, under the Hockey Rules,
a'tome game" of the Team, including any related pre-event
intermission or post-eventpromotior competition, performance,
autograph session, show or other entertainment or activitypresented
at the Arena Facility for which there is no admission charge other
than the price of therelated Hockey Ticket.
(Related Asreements' means the Non-Relocation Agreement the
Safety and SecurAgreement, and any agreement that is included as an
Exhibit to this Agreement or othenvisespecifically contemplated by
this Agreement.
ttReriewal and Replacen tt means one or more accorutts,
requiring thesignatrues of the Arena Manager and the C for
withdrawals, maintained at a federally insrredinstitution(s) having
offices in the State of Arizona for the deposit of Capital
ImprovementContributions and disbursement of Capital Improvement
Expenditures as defined in Section 11.
Rep!cement Arena Managertt means, in the event of an Aena
Manager \ilithdrawal,a qualified arena manager designated by the
Tearn Owner or the City, as applicable underSection t9.3.3, that
agrees to assume the obligatiors of the Arena Manager under
thisAgreement.
rrSafetv and Securi8 Agreement' means that certain Safety and
Security Agreement inthe form attched to this Agreement as Exhibit
"E', to be entered into as of the Closing Date byand among the C,
the Aena Manager and the Tea:n Owner prior to the Closing Date.
*Schedulng Procedures' means the scheduling procedures for the
Arena Facilityatached to this Agreement as Exhibit "F", as the sane
may be amended, from time to time, byagreement among the City, the
ArenaManager and the Team Owner.
"fo!eg!!gU!4g" means a Taking of the Arena Facility tlnt, in the
reasonableestimation of fuena Manager, will render the Aena Facil
unsuitable for the Arena Manager'soperations as contemplated by
this Agreement.
*Suite'means any portion of the Aena Facility that is
constructed as a "suite" within theAena Facility and designated by
the Team Owner as a "suite", including specialty zuites, suchas
opera zuites, party zuites and '1nder stands" suites.
rt@nttt means written contacts or agreements for the license or
useof Suites.
rrSuite License RevenuesD meaN the revenues received by the Aena
Manager inconnection with the licensing or rental of Suites.
"Supplemental Surch 'means as defined in Section 9.1.3.tt
ountstt means as defined in Section 9.1.3
_19_
l73l9l t6.14
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"Supplemental Su{charge Procedures" means as defined in Section
9.1.3, to be enteredinto as of the Closing Date by and among the
City, Arena Manager and the "Escrovv Agent" tobe named therein,
(Takinst means the exercise of the right of eminent domain, with
or without litigation,or the tansfer in lieu or under the threat of
eminent domain.
ttTeam Owner Assignee" means a Person to which the Team Owner
intends to make anassignme,lrt in accordance with the terms and
conditions of this Agreement, including withoutlimitation Section
12 hereof.
3Team Owner l)efaultD means the occurrence of any of the
following events:
(m) If the Team Owner fails to pay when due any amount payableby
the Team Owner hereunder, and such failure is not cwed within 30
days after the TearnOwner's receipt of notice of such failure from
any other Party to this Agreement;
(n) If any representation or wananty made by the Team Owner
inthis Agreement at any time proves to have been inconect in any
material respect as of the timemade, and if the Team Owner fails to
cause such representation or warranty to become conectwithin 30
days afrer the Team Owner's receipt of notice from any other Party
to this Agreementthat such representation or warranty was inconect;
provided, however, that if it is reasonablypossible to cause such
representation or warranty to become conect but it is not
reasonablypossible o cause such representation or warranty to
become oorrect $ithin such thirty-dayperiod, then such cure period
sball be for a period of time (not to exceed 180 days), so long
asthe Team Owner (i) commences to cause such representation or
warranty to become correctwithin 30 days after the Team Owner's
receipt of such notice, and (ii) thereafter diligentlycontinues to
cause such representation or waranty to become correct;
(o) If the Team Owner is determined by a court order to
beinsolvent; or makes an assignment for the benefit of creditors;
or applies for or consents to theappointment of a receiver or
trustee for it or for a substantial part of its property or
business,provided, however, such action shall not constitute a Team
Owner Default for so long as TeamOwner is timely paying any sums
required to be paid under this Agreement and is performing allof
its other covenants, agreements, obligations, liabilities and
duties under this Agreement; or
(p) If the Team Owner materially breaches any covenant
orprovision of this Agreemen and such breach is not cued within 30
days after the TeamOwner's receipt from any other Party to this
Agreement of notice of such breach; provided,however, that if it is
reasonably possible to cure suoh breach but it is not reasonably
possible tocure such breach within such thirty-day period, then
such cure period shall be for a period oftime (not to exceed 180
days), so long the Team Owner (i) commences to cure such
breachwithin 30 days after the Team Owner's receipt of such notice,
and (ii) thereafrer diligentcontinues to oure such breach.
I 731 91 16. l4
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ttTeam Locker Room' means the space in the Arena Facility
designed and consuctedfor the exclusive use by the Team Owner as a
home team locker room, including dressing,locker, shower, lounge,
training, exercise and video coaching ueas.
rTeam Revenue Event' means a revenue-producing Even! other than
Hockey Events,Community Events, or City Sponsored Events, that is
sponsored or.co-sponsored by the TeamOwner or that is conducted
under, with, or in the Team's name.
('Ieam.ReJail Stores" means any the rtrea or areas in the Arena
facility designed andexclusive use by the Team Owner for Team
Sales, as described on Exhibit "A".
Team Sales" means sales by the Team Owner which result in
Exclusive TeamRevenues only.
rrTelm" means the period commencing on the Closing Date and
ending on theTermination Date or, if earlier, the date on which
this Agreement otherwise is terminated on theterms set forth
herein.
rsTermination Date" means the 30fr day afrer the last day of the
NHL hockey seasoncommencingin202S.
"Th!4!-EE' means a third party that is not the Team Owner, the
Arena Manager or anAffiliate of the Team Oqmer or the Arena
Manager.
rrTickett means the ticket or other indicia by which admission
to the Arena Facility foran Event or other activity at the Arena
Facility is permitted and contolled.
1.3 Ter.ms. Whenever the context shall so require, all words
herein in any gendershall be deemed to nclude the masculine,
feminine or neuter gender, and all singular words shallinclude the
plural, and all plural words shall include the singular.
1.3.1 The words 'hereif" "hereof," 'hereundet," "hereby,"
"thisAgreement" and other simila references shall mean and include
this Agreement and al1amendments to this Agreement and supplements
to this Agreement, unless the context clearlyindicates or requires
otherwise.
1.3.2 The words "include," "including," and other similar
references, shallmean "include, without limitation," and
"including, ulithout limitation," respectively.
1.3.3 The words "sole discretion" and other similar references
shall mean"sole, absolute and unfettered discretion."
1.3.4 Exhibits.. Each exhibit referred to herein shall be
considered a part ofthis Agreement as firlly, and with the same
force and effect, as i