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R-99-02-25-13A2 - 2/25/1999RESOLUTION NO. 99-02-25-13A2 WHEREAS, on January 20, 1999 the City entered into a Convention Center Complex Lease Agreement ("Lease"), and WHEREAS, the legal name of the lessee of the Lease was incorrectly stated to be RSR Sports, Inc., when in fact it should have been Ryan Sanders Ryan, Inc., and WHEREAS, the City and Ryan Sanders Ryan, Inc. now wish to correct the Lease to correct the mistake, Now Therefore, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a corrected Convention Center Complex Lease Agreement showing the name of the tenant as Ryan Sanders Ryan, Inc., a copy of same being attached hereto and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended, and the Act. RESOLVED this 25th day of Febru HARLES CULPEPPR, r Myor A EST: n City of Round Rock, Texas ,P% LAND, City Secretary K:\WPDOCS\RESOLUTI\R90225A2.WPD/sls ASSIGNMENT OF CONVENTION CENTER LEASE AGREEMENT AND MASTER AGREEMENT REGARDING CONVENTION CENTER COMPLEX DEVELOPMENT Reference is here made to (i) that certain Convention Center Complex Lease Agreement dated January 20, 1999 (the "Lease Agreement") between the City of Round Rock, Texas ("City"), as lessor, and Ryan Sanders Ryan, Inc., a corporation ("Assignor"), as lessee, and (ii) that certain Master Agreement Regarding Convention Center Complex Development ("Master Agreement") dated February 25, 1999 and executed by and between the City and Assignor. For and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and confessed, Assignor hereby assigns, sets over and delivers unto Round Rock Baseball, Inc., a Texas corporation ("Assignee") all of Assignor's rights, titles, and interests in and to both the Lease Agreement and the Master Agreement. Assignee represents that it is an entity in which Lynn N. Ryan (a/k/a Nolan Ryan), Reid Ryan or Don Sanders, singularly or in the aggregate, have at least a 51% ownership interest. Assignee, by its execution hereinbelow, hereby accepts such assignment and assumes all of the obligations, covenants, and agreements of Assignor under both the Lease Agreement and the Master Agreement. EXECUTED effective as of the 29th day of March, 1999. RYAN SANDERS RYAN, INC., a corporation By: Reid Ryan, resident ROUND ROCK BASEBALL, INC., a corporation By: Reid Ryan President The City executes and delivers this instrument solely to evidence its consent to the assignment of the Lease Agreement and the Master Agreement as aforesaid. CITY OF RD RO ' XAS By: 95A:332961.1 017324;0001 C: \ W PDOCS\ACITY\PR0134\LEASES\ASMNT. W PD/sls Robert L. BennettQ., City Manager EXHIBIT "A" The Land will be approximately forty (40) acres out of that one certain 88.411 acre tract of land situated in the P.A. Holder Survey, Abstract Number 297 in Williamson County, Texas, being all of tracts Two, Three and Four conveyed to Arnold Telander by instrument recorded in Volume 2129, Page 744 of the Official Records of Williamson County, Texas. The boundaries of said forty (40) acre tract to be agreed upon by Lessee and Lessor and surveyed by a registered surveyor. Upon completion of said survey, a metes and bounds description of the forty (40) acre tract will be attached to the original copies of this Lease Agreement and substituted for this Exhibit "A". 29 ASSIGNMENT OF CONVENTION CENTER LEASE AGREEMENT AND MASTER AGREEMENT REGARDING CONVENTION CENTER COMPLEX DEVELOPMENT Reference is here made to (i) that certain Convention Center Complex Lease Agreement dated January 20, 1999 (the "Lease Agreement") between the City of Round Rock, Texas ("City"), as lessor, and Ryan Sanders Ryan, Inc., a corporation ("Assignor"), as lessee, and (ii) that certain Master Agreement Regarding Convention Center Complex Development ("Master Agreement") dated February 25, 1999 and executed by and between the City and Assignor. For and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and confessed, Assignor hereby assigns, sets over and delivers unto Round Rock Baseball, Inc., a Texas corporation ("Assignee") all of Assignor's rights, titles, and interests in and to both the Lease Agreement and the Master Agreement. Assignee represents that it is an entity in which Lynn N. Ryan (a/k/a Nolan Ryan), Reid Ryan or Don Sanders, singularly or in the aggregate, have at least a 51% ownership interest. Assignee, by its execution hereinbelow, hereby accepts such assignment and assumes all of the obligations, covenants, and agreements of Assignor under both the Lease Agreement and the Master Agreement. EXECUTED effective as of the 29th day of March, 1999. RYAN SANDERS RYAN, INC., a corporation By: ei . Ry .• resident ROUND ROCK BASEBALL, INC., a corporation By: Reid Ry. resident The City executes and delivers this instrument solely to evidence its consent to the assignment of the Lease Agreement and the Master A:reement as aforesaid. CITY OF R By: 95A:332961.1 017324;0001 C:\W PDOCS\ACITY\PRO134\LEASES\ASMNT. W PD/sIs • EXAS Robe - . Ben , Jr., City Manager MASTER AGREEMENT REGARDING CONVENTION CENTER COMPLEX DEVELOPMENT Dated as of February 25, 1999 between CITY OF ROUND ROCK, TEXAS as the City and RYAN SANDERS RYAN, INC., as RSR TABLE OF CONTENTS ARTICLE 1 Page GENERAL TERMS 1 Section 1.1 Definitions and Usage 1 ARTICLE 2 REPRESENTATIVES OF THE PARTIES 1 Section 2.1 The City Representatives. 1 Section 2.2 RSR Representatives. 2 ARTICLE 3 TERM 2 Section 3.1 Term 2 ARTICLE 4 PROJECT DESIGN 2 Section 4.1 Design. 2 ARTICLE 5 LEASED COMPONENTS AND SERVICE CONTRACTS 2 Section 5.1 Equipment Lease and Service Contract Covenants 2 Section 5.2 RSR's Rights Under Equipment Leases and Service Contracts 2 ARTICLE 6 CONDITIONS 3 Section 6.1 Conditions to RSR's Obligations to Perform 3 Section 6.2 Termination for Failure of RSR's Conditions 3 ARTICLE 7 PROJECT COSTS Section 7.1 Section 7.2 Section 7.3 Section 7.4 ARTICLE 8 3 Pre -financial Close Project Costs 3 Financing Related Project Costs 4 City's Contribution to Project Costs 4 RSR's Contribution to Project Costs 4 SCOPE OF DEVELOPMENT Section 8.1 Section 8.2 Section 8.3 Section 8.4 Section 8.5 Section 8.6 Section 8.7 Section 8.8 ARTICLE 9 4 Project Improvements 4 Completion Dates 5 Record Drawings and Other Documents 5 Contract Requirements and Warranty Claims 6 Access to the Project 6 Construction Cooperation/Coordination 7 Liquidated Damages 8 Project Change Orders 8 RSR OBLIGATIONS 8 Section 9.1 RSR Requested Additions or Modifications 8 Section 9.2 Project Costs 9 9 Section 9.3 Concession Build Out ARTICLE 10 RSR'S CONTRIBUTION 9 Section 10.1 RSR's Contribution 9 ARTICLE 11 APPROVALS AND RELATED MATTERS 9 Section 11.1 Items and Matters to be Reviewed and Confirmed and/or Approved by the City 9 Section 11.2 Items and Matters to be Reviewed and Confirmed and/or Approved by RSR 9 ii ARTICLE 12 PROJECT CHANGES/APPLICATION OF PROJECT SAVINGS 9 Section 12.1 Project Savings 9 Section 12.2 Application of Project Savings 9 ARTICLE 13 CONDEMNATION 10 Section 13.1 Condemnation 10 Section 13.2 Condemnation of Part 10 Section 13.3 Condemnation Proceedings 10 Section 13.4 Notice of Condemnation 11 Section 13.5 Condemnation by the City 11 ARTICLE 14 DEFAULTS AND REMEDIES 11 Section 14.1 Events of Default 11 Section 14.2 RSR's Remedies 12 Section 14.3 The City's Remedies 13 Section 14.4 Termination 13 Section 14.5 Cumulative Remedies 13 Section 14.6 No Indirect Damages 13 Section 14.7 Declaratory or Injunctive Relief 14 ARTICLE 15 ASSIGNMENT 14 Section 15.1 Assignments of RSR's Interest 14 Section 15.2 Transfers by the City 14 ARTICLE 16 DISPUTE RESOLUTION 14 Section 16.1 Dispute Resolution 14 iii ARTICLE 17 GENERAL PROVISIONS 15 Section 17.1 Relationship of the Parties 15 Section 17.2 Certificates Regarding Project Documents 15 Section 17.3 Approvals and Consents; Standards for Review 15 Section 17.4 Incorporation of Appendices, Schedules and Exhibits 16 Section 17.5 Interest on Overdue Obligations 16 Section 17.6 Definitions 16 Section 17.7 Survival 16 Section 17.8 Notices 16 Section 17.9 Severability 17 Section 17.10 Entire Agreement; Amendment and Waiver 17 Section 17.11 Table of Contents; Headings 17 Section 17.12 Parties in Interest; Limitation on Rights of Others 17 Section 17.13 Method of Payment 18 Section 17.14 Counterparts 18 Section 17.15 Governing Law 18 Section 17.16 Court Proceedings 18 Section 17.17 Time 18 Section 17.18 Interpretation and Reliance 18 Section 17.19 Attorneys' Fees 18 Section 17.20 Insurance Proceeds 19 APPENDICES: APPENDIX A APPENDIX B EXHIBITS: EXHIBIT "A" EXHIBIT "B" APPENDICES AND EXHIBITS Rules of Usage and Glossary of Defined Terms Addresses for Payments and Notices Pre -financial Close Project Costs Financing Related Project Costs iv MASTER AGREEMENT REGARDING CONVENTION CENTER COMPLEX DEVELOPMENT THIS MASTER AGREEMENT REGARDING CONVENTION CENTER COMPLEX DEVELOPMENT (this "Master Agreement") is made and entered into effective as of the 25th day of February, 1999, (the "Effective Date") by and between the CITY OF ROUND ROCK, TEXAS, a Texas home rule municipal corporation (the "City") and RYAN SANDERS RYAN, INC., a Texas corporation ("RSR"). The City and RSR collectively are referred to herein as the "Parties." RECITALS A. On January 20, 1999, the City and RSR entered into that one certain Convention Center Complex Lease Agreement ("Lease") whereby the City agreed to lease to RSR a convention center complex (the "Project") . B. The Project is to be designed by RSR and RSR is to pay for and construct the Project Improvements (Package A). The City is to construct the Project Improvements (Package B). C. The City and RSR are executing and entering into this Master Agreement to set forth certain agreements of the City and RSR with respect to the convention center complex, including the terms, conditions and provisions pursuant to which RSR shall design, and RSR and the City shall develop and construct their respective portions of the Project. AGREEMENTS For and in consideration of the respective covenants and agreements of the Parties herein set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the City and RSR do hereby agree as follows: ARTICLE 1 GENERAL TERMS Section 1.1 Definitions and Usage. Unless the context shall otherwise require, capitalized terms used in this Master Agreement shall have the meanings assigned to them in the Glossary of Defined Terms attached hereto as Appendix A, which also contains rules as to usage that shall be applicable herein. ARTICLE 2 REPRESENTATIVES OF THE PARTIES Section 2.1 The City Representatives. City hereby designates Robert L. Bennett and James R. Nuse, P.E. to be the City Representatives (the "City Representatives.") Any consent, approval, decision or 1 determination hereunder by either of the City Representatives shall be binding on City; provided, however, the City Representatives shall not have any right to modify, amend or terminate this Master Agreement. Section 2.2 RSR Representatives. RSR hereby designates Reid Ryan and R.D. Sneed to serve as the RSR Representatives (the "RSR Representatives.") Any consent, approval, decision or determination hereunder by either of the RSR Representatives shall be binding on RSR; provided, however, the RSR Representatives shall not have any right to modify, amend or terminate this Master Agreement. ARTICLE 3 TERM Section 3.1 Term. The term of this Master Agreement shall commence on the Effective Date and except as otherwise expressly provided herein shall expire on the Substantial Completion Date (the "Project Term.") ARTICLE 4 PROJECT DESIGN Section 4.1 Design. RSR has entered into the Architect's Contract and shall be solely responsible for the payment of all fees and reimbursable expenses due and payable from time to time under the Architect's Contract notwithstanding any contrary provision hereof. RSR shall be responsible for the timely completion of the design of the Project. RSR shall also be responsible for ensuring that the Project Plans are in compliance with rales and regulations of the Sanctioning Association, as defined in the Lease. ARTICLE 5 LEASED COMPONENTS AND SERVICE CONTRACTS Section 5.1 Equipment Lease and Service Contract Covenants. The City covenants and agrees that prior to entering into any Equipment Lease or Service Contract, the City shall obtain RSR's approval of any such Equipment Lease or Service Contract Section 5.2 RSR's Rights Under Equipment Leases and Service Contracts. The City covenants and agrees that, without the prior consent of RSR, the City will not sell, assign, transfer, amend, modify or terminate any of the Equipment Leases or Service Contracts to any Person other than RSR. Further, the City agrees that RSR is a third -party beneficiary of the Equipment Leases and Service Contracts and hereby irrevocably and unconditionally conveys, transfers and assigns to RSR the nonexclusive right to enforce any and all of the respective obligations of any Person under the Equipment Leases and Service Contracts, including, but not limited to, any and all representations and warranties thereunder. RSR shall have no obligation whatsoever to enforce any Equipment Lease or Service Contract. 2 ARTICLE 6 CONDITIONS Section 6.1 Conditions to RSR's Obligations to Perform. It shall be a condition precedent to the performance of RSR's obligations under this Master Agreement that on or before March 31, 1999, Financial Close shall have occurred in accordance with the Debt Plan approved by RSR . Section 6.2 Conditions to City's Obligations to Perform. As provided for in Article 10 below, concurrent with Financial Close and satisfaction of the other requirements set forth therein, RSR is to contribute to the City the RSR Contribution which sum is to be used by the City in constructing the Project Improvements (Package B). The RSR Contribution shall be in the form of an irrevocable letter of credit in the form and substance acceptable to the City. It shall be a condition to the City's obligations to construct the Project Improvements Work, Package B, that Financial Close will occur on or before March 31, 1999 and that RSR will make the RSR Contribution to the City concurrent with Financial Close. Section 6.3 Termination for Failure of Conditions. (a) If for any reason the condition set forth in Section 6.1 of this Master Agreement has not been fully and timely satisfied, this Master Agreement shall terminate at the option of either Party by written notice to the other Party and upon such termination, notwithstanding anything herein contained to the contrary, the Parties shall have no further rights, obligations or liabilities under this Master Agreement or otherwise relating to this Master Agreement. - Furthermore, upon such termination, the Lease shall also automatically terminate and be of no further force or effect. (b) If for any reason the condition set forth in Section 6.2 of this Master Agreement has not been fully and timely satisfied, this Master Agreement shall terminate at the sole option of the City by written notice to RSR and upon such termination by City, notwithstanding anything herein contained to the contrary, the Parties shall have no further rights, obligations or liabilities under this Master Agreement or otherwise relating to this Master Agreement. Furthermore, upon such termination, the Lease shall also automatically terminate and be of no further force or effect. ARTICLE 7 PROJECT COSTS Section 7.1 Pre -Financial Close Project Costs. The City agrees to contribute up to $300,000.00 toward the payment of Project Costs that are incurred by the City prior to Financial Close ("Pre -Financial Close Project Costs"). The Parties agree that the Pre -Financial Close Project Costs include, but are not necessarily limited to the costs shown on Exhibit "A," attached hereto and incorporated herein. Any Pre - Financial Close Project Costs in excess of the $300,000.00 City contribution shall be paid in the same manner as Post Financial Close Project Costs are paid. 3 Section 7.2 Financing Related Project Costs. The City agrees to pay for the Project Costs related to the public debt financing for the Project (the "Financing Related Project Costs.") The Financing Related Project Costs are limited to the items as shown on Exhibit "B," attached hereto and incorporated herein. Section 7.3 City's Contribution to other Project Costs. All Project Costs other than Pre - Financial Project Costs and Financing Related Project Costs are referred to herein as "Post Financial Close Project Costs." The City's sole contribution to all. Post Financial Close Project Costs is the sum of $7,350,000.00 (herein referred to as the "City's Contribution.") The Parties understand and agree that the source of a portion of the City's Contribution will be from the interest earnings on the bond proceeds during the construction period. RSR agrees and understands that under no circumstances whatsoever shall the City be expected or required to contribute any sum of money in excess of said $ 7,350,000.00 for Post Financial Close Project Costs; it being the understanding of the Parties that ALL liability for Post Financial Close Project Costs in excess of the City's Contribution, including but not limited to, cost overruns, Project Construction Change Orders, unforeseen contingencies, additions, modifications, etc. shall be the sole responsibility of RSR. Notwithstanding the foregoing, RSR will not be responsible for Project Costs resulting from the default by the City under the Project Construction Contract or any of the other Project. Construction Documents (unless the same is caused by RSR, its agents, contractors, or employees or results from a failure of the Architect to perform its obligations under the Architect's Contract in timely and complete manner). Further, it is neither the intent nor desire of the City or RSR to incur costs or fees under the Project Construction Contract in excess of the Project Contract Sum. The City and RSR agree to cooperate with one another in taking actions reasonably necessary tc minimize the risks of Project Change Orders or any other change orders under the Project Construction Contract. In the event it appears likely that the Project Contractor will he entitled to change orders under the Project Construction Contract increasing the contract sum to be paid thereunder above the original contract sum set forth in such contract, the City and RSR will prepare and submit to the Project Contractor proposed change orders effecting value engineering as to eliminate, to the maximum extent. practicable, such increases. Section 7.4 RSR's Contribution to Project Costs. RSR agrees to pay for all Pre -Financial Close Project Costs in excess of $300,060.00 and for all Post Financial Close Project Costs that exceed the City's Contribution. ARTICLE 8 SCOPE OF DEVELOPMENT Section 8,1 Project Improvements. The City shall enter into a Project Construction Contract with the lowest responsible bidder for the Project Improvements Work for the Project Improvements (Package B), (including, but not limited to the development, construction, and placement in service of the Project Improvements (Package B), at and within the Land and in accordance with this Master Agreement, the Project Submission Matters and all applicable Governmental Rules). All modifications to the Project prior to the execution of the Project Construction Contract for the Project Improvements (Package B) must be approved by the City and RSR. 4 RSR shall enter into a Project Construction Contract for the Project Improvements Work for the Project Improvements (Package A), (including, but not limited to the development, construction, and placement in service of the Project Improvements (Package A), at and within the Land and in accordance with this Master Agreement, the Project Submission Matters and all applicable Governmental Rules). All modifications to the Project prior to the execution of the Project Construction Contract for the Project Improvements (Package A) must be approved by the City and RSR. The Project Plans (including detailed plans and specifications) are the responsibility of RSR and shall be developed and prepared by the Architect at RSR's expense and direction and in cooperation with the City and submitted by RSR to the City for its approval. Any changes in the Project Plans shall be subject to the prior approval of RSR and the City. Any termination and replacement of the Project Contractor following a default by the Project Contractor shall be subject to the approval of RSR. Section 8.2 Completion Dates. Subject to extensions for Force Majeure, RSR shall cause Substantial Completion of the Project Improvements Work for the Project Improvements (Package A)1 to occur as follows: all work in the area of the convention center and stadium between grid lines U and 18 as shown on the Architect's plans shall be completed cio later than June 8, 1999. The remainder of the work in Package Al shall be completed no later than June 29, 1999. Subject to extensions for Force Majeure, RSR shall cause Substantial Completion of the Project Improvements Work for the Project Improvements (Package A)2 to occur no later than June 29, 1999..In the event RSR fails to substantially complete either Project Improvements Package Al or A2, the sole remedy for the City shall be an extension, on a day for day basis, of the Deadline for Substantia Completion. Subject to extensions for Force Majeure, the City shall cause Substantial Completion of all of the Project Improvements Work for Project Improvements (Package B) to occur on or before April 1, 2001 (such date, as so extended, being the "Deadline for Substantial Completion"). Notwithstanding anything to the contrary contained in this Master Agreement, in the event Substantial Completion of all of the Project Improvements Work for Project Improvement, Package B does not occur on or before the Deadline for Substantial Completion, for any reason other than failure of RSR to perform (or delay by RSR in performing) any of its material obligations under this Master Agreement, RSR shall have the option of terminating this Master Agreement by delivery of written notice thereof to the City. Upon any such termination, RSR's sole remedy shall be to receive a full refund of RSR's Contribution. In lieu of termination hereof, RSR shall have the right (but not the obligation) to enter the Land and direct completion of the Project Improvements (Package B) and the City agrees to provide to RSR the unutilized proceeds from the debt incurred under the Debt Plan to pay the costs and expenses incurred by RSR in completing the Project Improvements Work. Section 8.3 Record Drawings and Other Documents. Upon Substantial Completion of the Project Improvements Work for Project Improvements (Package A), RSR shall furnish to City (i) one (1) copy of the marked drawings that the Project Contractor is obligated to deliver to RSR under the Project Construction Contract. Upon Substantial Completion of the Project Improvements Work for Project Improvements (Package B), the City shall furnish to RSR (i) one (1) copy of the marked drawings that the Project Contractor is obligated to deliver to the City under the Project Construction Contract, together with all applicable permits, authorizations, and licenses necessary for RSR to use the same fully for purposes of 5 the operation, maintenance, and occupancy of the Project Improvements, (ii) two (2) copies of the operating and maintenance data binders required to be supplied by the Project Contractor under the Project Construction Contract, and (iii) certified true copies of all approvals, permits and certificates, including (if applicable), but not limited to, a certificate of occupancy or its equivalent, which shall then be required by any Governmental Authority in order for RSR to use and occupy the Leased Premises in accordance with the Lease. Section 8.4 Contract Requirements and Warranty Claims. The City shall ensure that the Project Construction Contract for the Project Improvements (Package B) and all subcontracts for the supply of equipment or systems to the Project Contractor for the Project Improvements (Package B) shall provide for the assignment of all warranties, maintenance agreements thereunder to RSR and give RSR the independent right to enforce the same, and permit RSR to use (but not own) any plans and specifications to which the City is then entitled pursuant to any such contracts. The City and RSR shall cooperate with each other in prosecuting any and all warranty and similar claims under any and all contracts or other agreements with third parties for the design or construction of. the Project Improvements Work, including, but not limited to any and all such claims under the Project Construction Contract (each a "Warranty Claim"). All recoveries from any Warranty Claim shall be applied first to the costs and expenses incurred in effecting such iecovery and then to the costs and expenses incurred in order to repair, restore, or replace any part of the Project improvements to which such Warranty Claire relates. Section 8.5 Access to the Project. RSR and its agents, contractors, sublessees, licensees, and concessionaires shall have the right of access, for themselves and their authorized representatives, to the Land and the Project Improvements and all portions thereof for the following purposes, without charges or fees or the commencement of rent under the Lease, and at normal construction hours during the construction period, provided RSR and all such agents, contractors, sublessees, licensees, and concessionaires (i) notify the City Representatives in advance of such proposed entry by any of RSR's subtenants, licensees or concessionaires, (ii) do not hinder or interfere with the Project Improvements Work or the activities of the City's contractors, and (iii) take such reasonable protective precautions or measures as the City or the Project Contractor may reasonably request, given the stage of the Project Improvements Work at the time of such entry and (iv) comply with the provisions of the Project Construction Contract relating to the City's rights to access: (a) Conducting inspections for purposes of determining compliance with this Master Agreement; (b) Construction and installation of any Concession Improvements and any other improvements permitted by the Lease so long as, in either case, RSR does not unreasonably interfere with the construction of the Project Improvements Work by the Project Contractor; (c) Construction and installation of any interior tenant finish work required pursuant to Space Leases, construction and installation of offices for RSR, use of its offices for ticket sales and 6 promotions and other normal and customary business, and equipping locker room and related facilities for RSR; (d) Installation of any additional fixtures or equipment; (e) Tours of the Land and Project Improvements sponsored by RSR; and (f) The erection and maintenance of billboards and signs during the construction period consistent with RSR's naming rights and advertising rights under the Lease. Subject to compliance with the City's ordinances related to occupancy of buildings, RSR shall have the right to take possession of its offices (subject to the terms hereof) and use the same for the conduct of RSR's normal and customary business. Any entry, access or occupancy provided to RSR pursuant to the terms of this Section 8.5 shall not be deemed to be acceptance of the Project Improvements Work or commence the Lease Tern. RSR shall be responsible for all utility and other costs associated with taking possession of its offices. Section 8.6 Construction Cooperation/Coordination. The City agrees that at all times during the Project Improvements Work for the Project improvements (Package B), the City will do the following: (a) Conduct the Project Improvements Work, and require all of its contractors, subcontractors and agents to conduct the Project Improvements Work, in cooperation with RSR so that (1) RSR will be kept reasonably apprized of all aspects of the Project Improvements Work, (ii) RSR can minimize the risk of any Project Change Orders, and (iii) RSR can coordinate the installation of any improvements, fixtures or equipment by RSR or any of its sublessees, licensees or concessionaires; (b) Make a reasonable effort to deliver to RSR a copy of all notices and correspondence, including, but not limited to, any notice of default, sent or received by the City under any Project Construction Documents, relating to the Project Improvements Work or the Leased Premises, unless directed otherwise by RSR or any such notice or correspondence received by the City shows that a copy has been delivered to RSR; (c) Instruct the Project Contractor and all other contractors and consultants engaged by the City with respect to the Project Improvements Work to provide RSR with a duplicate copy of all notices, correspondence, reports, drawings or specifications, and other documentation delivered or received by either of them simultaneously with their delivery to the City, including, but not limited to, advance notice of weekly progress meetings; and (d) Allow RSR and its representatives to attend meetings relating to the Project Improvements Work or the Leased Premises, including, but not limited to, weekly progress meetings and design review meetings. 7 Each party hereto agrees that all Project Construction Contract(s) will contain a provision stating that RSR and the City is a third party beneficiary of the agreements with such parties. RSR has entered into the Architect's Contract (as described above) and agrees to notify the Architect that the City is a third party beneficiary of the agreements of the Architect under the Architect's Contract. RSR agrees to cause the Architect to deliver to the City a copy of all notices, correspondence, reports, drawings, specifications and other documentation received by RSR from the Architect. Section 8.7 Liquidated Damages. The City agrees to include in the Project Construction Contract a provision whereby the Project Contractor agrees to pay liquidated damages (i) in the amount of $1,000 per day for each day beyond the date established therefor that the Project Contractor fails to achieve Substantial Completion, and (ii) in the amount of $100,000 for each scheduled home baseball game on or after April 16, 2000, which RSR is unable to conduct in the Project Improvements due to the failure of the Project Contractor to have achieved Substantial Completion in accordance with the Project Construction Contract. The City shall diligently in good faith by appropriate proceedings attempt to collect all liquidated damages from the Project Contractor to which the City may be entitled under the Project Construction Contract. The City agrees that all liquidated damages to which the City may be entitled with respect to the events described in clause (ii) of this Section 8.7 are for the sole and exclusive benefit of and shall be paid to RSR promptly upon receipt of the same by the City (through offset under the Project Construction Contract or otherwise), less the amount of attorneys' fees and other reasonable collection costs actually paid by the City in connection therewith. The City agrees that RSR is a third party beneficiary of the obligations of the Project Contractor to pay liquidated damages arid hereby conveys and assigns to RSR the non-exclusive right to enforce the obligations of the Project Contractor to pay the same. Section 8.8 Project Change Orders. It is anticipated that the scope and size of the Project will probably require Project Change Orders. As a result, the Project Fund will include $100,000 for Project Change Orders (such amount herein referred to as the "Project Change Order Fund.") No further deposits need to be made to the Project Change Order Fund unless and until proceeds are disbursed therefrom for Project Change Orders to the extent that less than $25,000.00 is left in said Fund, in which case subsequent deposits shall be made by RSR so as to restore such balance to $100,000. Regardless of the foregoing, no subsequent deposit shall be required of RSR if there are interest earnings from the RSR Contribution which are sufficient to restore the balance to at least $100,000. Any excess funds left in the Project Change Order Fund after completion of the Project shall be refunded to RSR. RSR shall be solely responsible for the cost of any and all Project Change Orders that in the aggregate exceed the Project Change Order Fund, subject to the provisions of Section 7.3 above. ARTICLE 9 RSR OBLIGATIONS Section 9.1 Section 9.1 RSR Requested Additions or Modifications. In the event that RSR determines that it desires any additions or modifications to the Project ("RSR Requested Modifications,") it shall submit a written request along with plans and specifications for the RSR Requested Modifications to the City for its approval, which approval shall not be unreasonably withheld. A RSR Requested 8 Modification will not be considered as a Project Change Order. In the event that the RSR Requested Modification results in an increase in the Project Cost, such increase shall be the sole responsibility of RSR, and it will be the responsibility of RSR to pay the cost of the RSR Requested Modifications and to make appropriate arrangements with the Project Contractor to perform the same. Section 9.2 Project Costs. RSR agrees to pay when due all Pre -Financial Close Project Costs in excess of $300,000 and Post Financial Close Project Costs in excess of the City Contribution. RSR shall pay such costs within fifteen (15) days after the receipt of a request from the City. The failure of RSR to pay such costs within thirty (30) days after receipt of the request shall he a RSR Default. Section 9.3 Concession Build Out. RSR covenants and agrees that RSR shall design, construct, and place in service the Concession Improvements, or cause the same to be designed, constructed, and placed in service in accordance with applicable Governmental Rules, all at RSR's sole cost and expense. RSR agrees that when complete the Concession Improvements will be comparable to concession facilities contained in comparable baseball facilities. ARTICLE 10 RSR'S CONTRIBUTION Section 10.1 RSR's Contribution. Concurrent with Financial Close, RSR agrees to deposit with the City an irrevocable letter of credit in the amount of $7,500,000.00. After bids are received but prior to the City's entering into the Project Construction Contract to construct the Project Improvements (Package B,) RSR agrees to replace the aforesaid letter of credit with its cash contribution, herein referred to as the "RSR Contribution." On the effective date hereof, it is currently estimated that the RSR Contribution will be approximately $7,400,000.00 less its costs to construct the Project Improvements (Package A.) ARTICLE 11 APPROVALS AND RELATED MATTERS Section 11.1 Items and Matters to be Reviewed and Confirmed and/or Approved by the City. All Project Submission Matters and any issuance of, changes to, or modifications of, the Project Submission Matters must be approved by the City. Section 11.2 Items and Matters to be Reviewed and Confirmed and/or Approved by RSR. The City must obtain the prior approval of RSR, acting through the RSR Representative, of the Project Submission Matters and any issuance of or changes to, or modifications of, the Project Submission Matters. 9 ARTICLE 12 PROJECT CHANGES/APPLICATION OF PROJECT SAVINGS Section 12.1 Project Savings. The total of all Project Savings, as and when realized and however realized, shall be reinvested by the City in the Project Improvements in the manner and in the priority specified in Section 12.2. Section 12.2 Application of Project Savings. The City agrees that all Project Savings will be applied to the Project Improvements Work and shall be applied in the following order of priority: (a) First, to amounts payable to the Project Contractor as increases in the Project Contract Sum due to Project Change Orders approved by the City ; and (b) Second, to amounts payable to the Project Contractor as increases in the Project Contract Sum due to RSR Requested Modifications. ARTICLE 13 CONDEMNATION Section 13.1 Condemnation. 13.1.1 Condemnation of Substantially All of the Leased Premises and the Improvements. if, at any time prior to the Lease Commencement Date, title to the whole or Substantially All of the Leased Premises shall be taken in Condemnation Actions or by any right of eminent domain (or conveyed in lieu of any such proceeding), other than for a temporary use or occupancy that is for less than twelve (12) months in the aggregate, this Master Agreement and the Lease shall terminate and expire on the date of such taking (or conveyance). Upon any termination hereunder all sums, amounts or other compensation for the Leased Premises paid or payable to RSR or the City (herein referred to as the "Condemnation Award") shall be distributed, first in pro -rata shares to the City and RSR in proportion to their respective contributions to the Project Costs, provided however that the said distribution to RSR shall not exceed its total contribution to the Project Costs. After RSR is reimbursed in full for its total contribution to the Project Costs, any remainder of the Condemnation Award shall be paid to the City. Any separate condemnation award to RSR for its leasehold interests shall be paid directly to RSR. 13.1.2 Definitions of Substantially All of the Leased Premises and the Improvements and Condemnation Proceedings. For purposes of this Article 13, "Substantially All of the Leased Premises and the Improvements" shall be deemed to have been taken if, by reason of the taking of title to the Leased Premises and the improvements or any portion thereof by Condemnation Actions, an Untenantable Condition (as such term is defined in the Lease) exists, or is reasonably expected to exist, for longer than twelve (12) months. For purposes of this Master Agreement, the term "Condemnation Actions" shall include a taking by any Governmental Authority (or other Person with power of eminent domain) by exercise of any 10 right of eminent domain or by appropriation and an acquisition by any Governmental Authority (or other Person with power of eminent domain) through a private purchase in lieu thereof. Section 13.2 Condemnation of Part. In the event of a Condemnation Action affecting less than the whole or Substantially All of the Leased Premises, the Project Term shall not be reduced or affected in any way. Section 13.3 Condemnation Proceedings. The City, RSR, each shall have the right, at its own expense, to appear in any Condemnation Action and to participate in any and all hearings, trials and appeals therein. In addition, notwithstanding anything to the contrary contained in this Master Agreement, RSR shall have the right to claim, prove and receive in the Condemnation Action any award allowed for RSR's separate Property or damage to or relocation costs of RSR's business. Section 13.4 Notice of Condemnation. In the event RSR or the City shall receive notice of any proposed or pending Condemnation Action affecting the Project Improvements Work or Leased Premises, the Party receiving such notice shall promptly notify the other Party. Section 13.5 Condemnation by the City. The provisions of this Article 13 for the allocation of any Condemnation Awards are not intended to be, and shall not be construed or interpreted as, any limitation on or liquidation of any claims or damages (as to either amount or type of damages) of RSR against the City in the event of a condemnation by the City of any portion or all of the Leased Premises. ARTICLE 14 DEFAULTS AND REMEDIES Section 14.1 Events of Default. 14.1.1 City Default. The occurrence of any of the following shall be an "Event of Default" by the City or a "City Default": (a) The failure of the City to pay any of its monetary obligations under this Master Agreement when due and payable under this Master Agreement if such failure continues for thirty (30) days after RSR gives notice to the City that such amount was not paid when due; (b) Abandonment of the Project by the City or any termination, in whole or in part, of any of the Project Construction Contract or any of the work thereunder by the City without the consent of RSR. unless pursuant to a right of termination based upon the existence of an event of default under such Project Construction Contract; (c) Any suspension of the Project Improvements Work by the City for longer than sixty (60) consecutive days or one hundred twenty (120) days in any three hundred sixty-five (365) day period for any reason other than Force Majeure; or 11 (d) The failure of the City to substantially perform or substantially observe any of the obligations, covenants or agreements to be performed or observed by City under this Master Agreement within thirty (30) days after notice from RSR of such failure; provided however, that if such performance or observance cannot reasonably be accomplished within such thirty (30) day period, then no Event of Default by the City shall occur unless the City fails to commence such performance or observance within such thirty (30) day period and fails to diligently prosecute such performance or observance to conclusion thereafter; provided further, however, that if such performance or observance has not been accomplished within one hundred twenty (120) days after notice from the RSR to the City of such failure (notwithstanding the City's diligent prosecution of its curative efforts), then such failure shall constitute an Event of Default by the City hereunder. 14.1.2 RSR Default. The occurrence of the following shall be an "Event of Default" by RSR or a "RSR Default": (a) The failure of RSR to pay any of its monetary obligations to the City under this Master Agreement when due and payable if such failure continues for thirty (30) days after the City gives notice to RSR that such amount was not paid when due; (b) The failure of RSR to substantially perform or substantially observe any of the obligations, covenants or agreements to be performed or observed by RSR under this Master Agreement within thirty (30) days after notice from the City of such failure; provided, however, that if such performance or observance cannot reasonably be accomplished within such thirty (30) day period, then no Event of Default by RSR shall occur unless RSR fails to commence such performance or observance within such thirty (30) day period and fails to diligently prosecute such performance or observance to conclusion thereafter; provided further, however, that if such performance or observance has not been accomplished within one hundred twenty (120) days after notice from the City to RSR of such failure (notwithstanding RSR's diligent prosecution of its curative efforts), then such failure shall constitute an Event of Default by RSR hereunder; or (c) The (i) filing by RSR of a voluntary petition in bankruptcy; or (ii) adjudication of RSR as a bankrupt; or (iii) approval as properly filed by a court of competent jurisdiction of any petition or other pleading in any action seeking reorganization, rearrangement, adjustment, or composition of, or in respect of RSR under the United States Bankruptcy Code or any other similar state or federal law dealing with creditors' rights generally; or (iv) appointment of a receiver, trustee or other similar official for RSR or its Property, unless within thirty (30) days after such approval of' filing or appointment RSR causes such proceeding or appointment to be stayed or discharged. Section 14.2 RSR's Remedies. Upon the occurrence of any City Default, RSR may, at its sole discretion, have the option to pursue any one or more of the following remedies without any notice or demand whatsoever, other than any notice expressly provided in this Master Agreement: 12 (a) RSR may terminate this Master Agreement and the Lease, as provided in Section 14.4; (b) In the case of a City Default described in either of Section 14.1(b) or (c), RSR may (but shall not be obligated) enter the Land and direct completion of the Project Improvements Work and the City agrees to provide to RSR the unutilized proceeds from the debt incurred under the Debt Plan to pay the costs and expenses incurred by RSR in completing the Project Improvements Work; and (c) RSR may exercise any and all other remedies available to RSR at law or in equity, but subject to any limitations thereon set forth in this Master Agreement. Section 14.3 The City's Remedies. Upon the occurrence of any RSR Default, the City may, at its sole discretion, have the option to pursue any one or more of the following remedies without any notice or demand whatsoever, other than any notice expressly provided in this Master Agreement: (a) The City may terminate this Master Agreement and the Lease as provided in Section 14.4; and (b) The City may exercise any and all other remedies available to the City at law or in equity, but subject to any limitations thereon set forth in this Master Agreement. Section 14.4 Termination. Upori the occurrence of a City Default as described in Section 14.1.1 or a RSR Default as described in Section 14.1.2, the non -defaulting Party, in addition to its other remedies at law or in equity, shall have the right to give to the defaulting Party notice (a "Final Notice") of the non - defaulting Party's intention to tenninate this Master Agreement and the Lease, after the expiration of a period of thirty (30) days from the date such Final Notice is delivered unless the Event of Default is cured, and upon expiration of such thirty (30) day period, if the Event of Default is not cured, this Master Agreement and the Lease shall terminate without liability to the non -defaulting Party. If, however, within such thirty (30) day period the defaulting Party cures such Event of Default, then this Master Agreement and the Lease shall not terminate by reason of such Final Notice. In the event of a termination of this Master Agreement and the Lease by either Party under this Section 14.4, then notwithstanding anything to the contrary set forth in this Master Agreement and the Lease all obligations of the Parties hereunder and under the Lease automatically shall terminate also, without liability to the other Party. Section 14.5 Cumulative Remedies. Subject to the provisions of Section 14.6, each right or remedy of RSR and the City provided for in this Master Agreement shall be cumulative of and shall be in addition to every other right or remedy of RSR or the City provided for in this Master Agreement, and the exercise or the beginning of the exercise by RSR or the City of any one or more of the rights or remedies provided for in this Master Agreement shall not preclude the simultaneous or later exercise by RSR or the City of any or all other rights or remedies provided for in this Master Agreement or any other Project Document or hereafter existing at law or in equity, by statute or otherwise. The City expressly agrees that 13 in the event of termination hereof by RSR, RSR shall have the right to seek and obtain and full refund from the City of the $ RSR Contribution made by RSR to the City in accordance with this Master Agreement. Section 14.6 No Indirect Damages. IN NO EVENT SHALL RSR OR THE CITY BE LIABLE UNDER ANY PROVISION OF THIS MASTER AGREEMENT OR OTHERWISE FOR LOST PROFITS, INCLUDING 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 THE SOLE OR CONCURRENT NEGLIGENCE OF RSR OR THE CITY OR ANY OF THEIR AFFILIATES OR RELATED PARTIES; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT AFFECT ANY LIABILITY THAT THE City MAY OTHERWISE HAVE UNDER THIS MASTER AGREEMENT IN RESPECT TO LIQUIDATED DAMAGES. WITHOUT LIMITING THE FOREGOING, THIS LIMITATION OF LIABILITY SHALL APPLY TO CLAIMS OF RSR OR THE CITY ARISING OUT OF THIRD PARTY CLAIMS AGAINST RSR OR THE CITY FOR ANY OF THE FOREGOING. Section 14.7 Declaratory or Injunctive Relief. In addition to the remedies set forth in this Article 14 and subject to the provisions of Article 17, the Parties shall be entitled, in any circumstances they may deem appropriate, to seek injunctive relief prohibiting (rather than mandating) action by the other Party for any Event of Default of the other Party or declaratory relief with respect to any matter under this Master Agreement. ARTICLE 15 ASSIGNMENT Section 15.1 Assignments of RSR's Interest. RSR shall not sell, assign or transfer its rights under this Master Agreement (each, a "Transfer") without the prior written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned. The City's consent to a Transfer shall not be required for a Transfer to a transferee that RSR is entitled to and concurrently does Transfer under the Lease to the same transferee. Section 15.2 Transfers by the City. The City shall not sell, assign or otherwise transfer this Master Agreement or any of its rights, obligations or duties under this Master Agreement , without first obtaining the prior written consent of RSR. pursuant to this Article 15, which consent shall not be unreasonably withheld, delayed or conditioned. ARTICLE 16 DISPUTE RESOLUTION Section 16.1 Dispute Resolution. In the event any dispute, controversy or claim between or among the Parties arises under this Master Agreement or any right, duty or obligation arising therefrom or the relationship of the Parties thereunder (a "Dispute or Controversy"), including, but not limited to, a Dispute 14 or Controversy relating to the effectiveness, validity, interpretation, implementation, termination, cancellation or enforcement of this Master Agreement, the Parties shall first attempt in good faith to settle and resolve such Dispute or Controversy by mutual agreement in accordance with the terms of this Article 16. In the event a Dispute or Controversy arises, either Party shall have the right to notify the other that it has elected to implement the procedures set forth in this Article 16. Within fifteen (15) days after delivery of any such notice by one Party to the other regarding a Dispute or Controversy, the City Representatives and RSR Representative shall meet at a mutually agreed time and place to attempt, with diligence and good faith, to resolve and settle such Dispute or Controversy. ARTICLE 17 GENERAL PROVISIONS Section 17.1 Relationship of the Parties. The relationship of RSR and the City under this Master Agreement is that of independent parties, each acting in its own best interests, and notwithstanding anything in this Master Agreement to the contrary, no partnership, joint venture or other or additional business relationship is established or intended hereby between RSR and the City. Section 17.2 Certificates Regarding Project Documents. Each Party agrees, at any time and from time to time upon riot less than thirty (30) days prior written notice from the other Party, to execute, acknowledge and deliver to such other Party, or to any Person designated by the other Party, a statement certifying that this Master Agreement are unmodified and in full force and effect (or, if there have been modifications, that the Master Agreement are in full force and effect as modified and stating the modifications), and stating whether or not, to the knowledge of the Party making the statement, the other Party is in default hereunder or thereunder in keeping, observing or performing any of the terms, covenants or conditions contained in this Master Agreement to be kept, observed or performed by the other Party (or whether there is a potential RSR Default or a potential City Default) and, if in default, specifying each such default of which the Party making the statement is aware, it being intended that any such statement delivered pursuant to this Section 17.2 shall be relied upon by the other Party or any Person designated by such other Party. Section 17.3 Approvals and Consents; Standards for Review. 17.3.1 Review and Approvals or Consent Rights. The provisions of this Section 17.3 shall be applicable with respect to all instances in which it is provided under this Master Agreement that the City or RSR exercises Review and Approval or Consent Rights; provided, however, that if the previsions of this Section 17.3 specifying time periods for exercise of Review and Approval or Consent Rights shall conflict with other express provisions of this Master Agreement providing for time periods for exercise of designated Review and Approval or Consent Rights, then the provisions of such other provisions of this Master Agreement shall control. As used herein, the term "Review and Approval or Consent Rights" shall include, without limiting the generality of that term, all instances in which one Party (the "Submitting Party") is permitted or required to submit to the other Party or to the representative of that other Party any document, notice or determination of the Submitting Party and with respect to which the other Party or its representative 15 (the "Reviewing Party") 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 Master Agreement specifically provides that the Review and Approval or Consent Rights may be exercised in the sole and absolute discretion (or a similar standard) of the Reviewing Party, in connection with exercising its Review and Approval or Consents rights under any provision of this Master Agreement and whether or not specifically provided in any such provision, the Reviewing Party covenants and agrees to act in good faith, with due diligence, and in a commercially reasonable manner with regard to each and all of such Review and Approval or Consent Rights and to not unreasonably withhold, condition or delay its approval of or consent to any submission. 17.3.2 Standard for Review. The Submitting Party shall use reasonable efforts to cause any matter submitted to the Reviewing Party by the Submitting Party and with respect to which the Reviewing Party has Review and Approval or Consent Rights under this Master Agreement to be submitted under cover of a request which (i) contains the heading or caption "TIME SENSITIVE - REQUEST FOR REVIEW/APPROVAL OR CONSENT" (or similar phrase), and (ii) states the date by which a response is required under the terms of this Master Agreement. 17.3.3 Deemed Approval or Consent If no response from the Reviewing Party is delivered to the Submitting Party within thirty (30) days after the submission, or such shorter time as may be required hereby. 17.3.4 Key Elements of the Project. Notwithstanding the other provisions of this Section 17.3, RSR and the City agree that RSR may, in its sole and absolute discretion, withhold its approval or consent to any Project Submission Matters and any changes to, or modifications of, any Project Submission Matters that result in or are likely to result in (i) any extensions of, or any inability to achieve, the schedules and deadlines contained in this Master Agreement, including, but not limited to, the Deadline for Substantial Completion, (ii) an increase in Operating Expenses, (iii) a failure of the Project Improvements to conform to minor league baseball rules and regulations, (vi) any violation of applicable Governmental Rule or (viii) subject to the provisions of Section 7.3 above, any material change in the Project Plans. Section 17.4 Incorporation of Appendices, and Exhibits. All Appendices, and Exhibits attached to this Master Agreement are incorporated herein by this reference in their entirety and made a part hereof for all purposes. Section 17.5 Interest on Overdue Obligations. If any sum due hereunder is not paid on the due date thereof, the Party hereto owing such obligation to the other Party shall pay to the other Party interest thereon at the Default Rate, concurrently with the payment of the amount from the date such amount was due until paid. Any payment of interest at the Default Rate pursuant to this Master Agreement shall not excuse or cure any default hereunder. 16 Section 17.6 Definitions. Except as otherwise expressly provided in the Master Agreement, capitalized terms used in the Master Agreement and all appendices, schedules and exhibits thereto shall have the respective meanings given in Appendix A to the Master Agreement. Section 17.7 Survival. Except as otherwise expressly provided in the Master Agreement or in any other Project Document, the representations, warranties. covenants and agreements of the Parties contained or provided for in such instruments and the Parties' obligations under any and all thereof shall survive the execution and delivery of such instruments. Section 17.8 Notices. All notices, consents, directions, approvals, instructions, requests and other communications given to a Party under the Master Agreement shall be given in writing to such Party at the address set forth in Appendix B to the Master Agreement or at such other address as such Party shall designate by written notice to each of the other Party to the Master Agreement and may be delivered personally (including delivery by private courier services) or by telecopy (with a copy of such notice sent by private courier service for overnight delivery or by registered or certified mail) to the Party entitled thereto, and shall be deemed to be duly given or made when delivered by hand unless such day is not a Business Day, in which case such delivery shall be deemed to be made as of the next succeeding Business Day or in the case of telecopy (with a copy of such notice sent by private courier service for overnight delivery or by registered or certified mail), when sent, so long as it was received during normal business hours of the receiving Party on a Business Day and otherwise such delivery shall be deemed to be made as of the next succeeding Business Day. Section 17.9 Severability. If any term or provision of the Master Agreement, or the application thereof to any Person or circumstances, shall to any extent be invalid or unenforceable in any jurisdiction, as to such jurisdiction, the remainder of the Master Agreement, or the application of such term or provision to the Persons or circumstances other than those as to which such term or provision is held invalid or unenforceable in such jurisdiction, shall not be affected thereby, and each term and provision of the Master Agreement shall be valid and enforceable to the fullest extent permitted by applicable law and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the Parties to the Master Agreement hereby waive any provision of law that renders any provision thereof prohibited or unenforceable in any respect. Section 17.10 Entire Agreement; Amendment and Waiver. The Master Agreement, constitutes the entire agreement of the Parties thereto with respect to the subject matter thereof and supersedes all prior written and oral agreements and understandings with respect to such subject matter. Neither the Master Agreement nor any of the terms thereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing signed by the Party against which the enforcement of the termination, amendment, supplement, waiver or modification shall be sought. 17 Section 17.11 Table of Contents; Headings. The table of contents and headings of the various articles, sections and other subdivisions of the Master Agreement are for convenience of reference only and shall not modify, define or limit any of the terms or provisions hereof. Section 17.12 Parties in Interest; Limitation on Rights of Others. The terms of the Master Agreement shall be binding upon, and inure to the benefit of, the Parties and their permitted successors and assigns. Nothing in the Master Agreement, whether express or implied, shall be construed to give any Person (other than the Parties and their permitted successors and assigns and as expressly provided therein) any. legal or equitable right, remedy or claim under or in respect of such instrument or any covenants, conditions or provisions contained therein or any standing or authority to enforce the terms and provisions of such instrument. Section 17.13 Method of Payment. All amounts required to be paid by any Party to the other Party or any Person, either under the Master Agreement or under any other Project Document, shall be paid in such freely transferable coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts, by wire transfer, or other acceptable method of payment, of immediately available federal funds to the account set forth in Appendix B to the Master Agreement or to such other account located in the United States as such Party may specify by notice to the other Parties. If any payment under this Master Agreement is required to be made on a day other than a Business Day, the date of payment shall be extended to the next Business Day. Section 17.14 Counterparts. The Master Agreement may be executed by the Parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same Master Agreement. All signatures need not be on the same counterpart. Section 17.15 Governing Law. The Master Agreement and the actions of 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 17.16 Court Proceedings. Subject to the agreement of the Parties regarding arbitration and other alternative procedures for dispute resolution, any suit, action or proceeding against any Party to such instrument arising out of or relating to the Master Agreement, any transaction contemplated thereby or any judgment entered by any court in respect of any thereof may be brought in state court located in the City of Georgetown, Texas, and each Party hereby submits to the nonexclusive jurisdiction of such courts for the purpose of any such suit, action or proceeding. Section 17.17 Time. Times set forth in such instrument for the performance of obligations shall be strictly construed, time being of the essence of such instrument. However, in the event the date specified or computed under such instrument for the performance, delivery, completion or observance of a covenant, agreement, obligation or notice by either Party, hereto or for the occurrence of any event provided for therein, shall be a Saturday, Sunday or Legal Holiday, then the date for such performance, delivery, 18 completion, observance or occurrence shall automatically be extended to the next calendar day that is not a Saturday, Sunday or Legal Holiday. Section 17.18 Interpretation and Reliance. No presumption will apply in favor of any Party in the interpretation of the Master Agreement or in the resolution of any ambiguity of any provision thereof. Section 17.19 Attorneys' Fees. If Party defaults in the performance of any covenants, obligations or agreements of such party contained herein and the other Party places the enforcement of such instrument, or any part thereof, or the exercise of any other remedy therein provided for such default, in the hands of an. attorney who files suit or institutes an action or proceeding upon the same (either by direct action or counterclaim), the non -prevailing Party shall pay to the prevailing Party its reasonable attorneys' fees and costs of court. In addition to the foregoing award of attorneys' fees to the prevailing Party, the prevailing Party shall be entitled to its attorneys' fees incurred in any post judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of the Master Agreement into any judgment on such instrument. Section 17.20 Insurance Proceeds. Insurance proceeds paid or disbursed to the City, whether from the issuers of any insurance policies or otherwise, shall be held by the City in dust for the purposes of paying the cost of the Casualty Repair Work and shall be applied by the City to such casualty repair work. The City shall be obligated to make payment, disbursement, reimbursement or contribution toward the costs of the casualty repair work that exceed the amount of the insurance proceeds. IN WITNESS WHEREOF, this Master Agreement has been executed by the City on February 25, 1999. CITY 0 ROUND ROCK, TEXAS RYAN SANDERS RYAN, INC. By. Charles Culpepper, Mil}/or 19 APPENDIX A TO MASTER AGREEMENT RULES AS TO USAGE AND GLOSSARY OF DEFINED TERMS Rules as to Usage 1. The terms defined below have the meanings set forth below for all purposes, and such meanings are equally applicable to both the singular and plural forms of the terms defined. 2. "Include," "includes" and "including" shall be deemed to be followed by "without limitation" whether or not they are in fact followed by such words or words of like import. 3. "Writing," "written" and comparable terms refer to printing, typing, lithography and other means of reproducing in a visible form. 4. Any agreement, instrument or Governmental Rule defined or referred to below or in any agreement or instrument that is governed by this Appendix means such agreement or instrument or Governmental Rule as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of Governmental Rules) by succession of comparable successor Governmental Rules and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein. 5. References to a Person are also to its permitted successors and assigns. 6. Any term defined below by reference to any agreement, instrument or Governmental Rule has such meaning whether or not such agreement, instrument or Governmental Rule is in effect. 7. "Hereof," "herein," "hereunder" and comparable terms refer to the entire agreement or instrument in which such terms are used and not to any particular article, section or other subdivision thereof or attachment thereto. References in 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 schedules, exhibits or appendices in any agreement or instrument that is governed by this Appendix are to schedules, exhibits or appendices attached to such instrument or agreement. 20 8. Pronouns, whenever used in any agreement or instrument that is governed by this Appendix and of whatever gender, shall include natural persons, corporations, limited liability companies, partnerships, and associations of every kind and character. 9. References to any gender include, unless the context otherwise requires, references to all genders. 10. The word "or" will have the inclusive meaning represented by the phrase "and/or." 11. The phrase "and/or" when used in a conjunctive phrase, shall mean any one or more of the Persons specified in or the existence or occurrence of any one or more of the events, conditions or circumstances set forth in that phrase; provided, however, that, when used to describe the obligation of one or more Persons to do any act, it shall mean that the obligation is the obligation of each of the Persons but that it may be satisfied by performance by any one or more of them. 12. "Shall" and "will" have equal force and effect. 13. Unless otherwise specified, all references to a specific time of day in any agreement or instrument that is governed by this Appendix shall be based upon Central Standard Time or Central Daylight Savings Time, as applicable on the date in question in Houston, Texas. 14. References to "$" or to "dollars" shall mean the lawful currency of the United States of America. Glossary of Defined Terms "Architect" means HKS, INC. "Architect's Contract" means the services contract between RSR and the Architect for, among other things, the design of the Project Improvements, the preparation of the Project Plans, and construction administration services, as the same may be amended, supplemented, modified, renewed, extended or replaced from time to time with the consent of the City and RSR. "Business Day" shall mean a day of the year that is not a Saturday, Sunday, or Legal Holiday . "City" shall mean the City of Round Rock, Texas, a Texas municipal corporation and home rule city. "City's Contribution" shall mean the sum of $7,350,000 as set forth in Section 7.1. "City Representatives" shall have the meaning given to it in Section 2.1 of the Master Agreement. 21 "Component" means any item that is incorporated into the Project Improvements, or any portion thereof, including, by way of illustration and not limitation, all ancillary systems included in the Project Improvements, the structure and all structural members, concrete, controls, instrumentation, engines and motors, dynamos, cabling, wheels, transformers, capacitors, load centers, fuses, circuit breakers, gears, bearings, valves, pipes, joints, covers, seats, electronic and mechanical parts, subcomponents, and other equipment. "Condemnation Action" shall have the meaning given to it in Section 13.1.2 of the Master Agreement. "Condemnation Award" shall have the meaning given to it in Section 13.1.1 of the Master Agreement. "Deadline for Substantial Completion" shall have the meaning given to it in Section 8.3 of the Master Agreement. "Debt Plan" means the City's debt plan for financing the City's Contribution to the Project Costs. The Debt Plan shall be subject to the approval of RSR. "Default Rate" means the lesser of (i) the Prime Rate , or (ii) the maximum rate of interest permitted to be charged by applicable law. "Dispute or Controversy" shall have the meaning given to it in Article 16 of the Master Agreement. "Effective Date" shall have the meaning given to it in the first paragraph of the Master Agreement. "Equipment Lease" means any lease whereby a Component of the Project Improvements is to be leased (whether combined with a purchase option or not). "Event of Default" shall have the meaning given to it in Sections 14.1.1 and 14.1.2 of the Master Agreement. "Final Completion" means, when used with respect to the work to be performed under the Project Construction Contract, "final completion" as defined in the Project Construction Contract, and with respect to the balance of the Project Improvements Work or any Component of the balance of the Project Improvements Work (such as the Development Work), the final completion of all aspects of such work and improvements in accordance with all Governmental Rules and in accordance with the requirements for the same contained in the Master Agreement and Project Construction Documents, including, but not limited to, the completion of the punch -list type items referred to in the definition of the term "Substantial Completion". Substantial Completion of such work and improvements is a prerequisite to Final Completion of the same. 22 "Final Notice" shall have the meaning given to it in Section 14.4 of the Master Agreement. "Financial Close" means the closing by the City of financial arrangements with third parties whereby such parties agree to loan to the City funds in the amount specified in the Debt Plan approved by RSR. "Financing Related Project Costs" shall have the meaning given to it in Section 7.2. "Fiscal Year" means the twelve (12) month period from time to time established by the City as its fiscal year, which is currently the twelve (12) month period from October 1 through September 30 of each calendar year. "Force Majeure" means Acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, orders of any kind of the government of the United States of America, or of any state thereof, or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, tornadoes, storms, floods, washouts, droughts, arrests, restraining of government and people, civil disturbances, explosions, nuclear accidents, wars, part or entire failure of utilities, shortages of labor, material, supplies or transportation, or any other cause not reasonably within the control of the party claiming inability to perform due to such cause. "Force majeure" shall not, however, include economic hardship. "Governmental Authority" means any federal, state, local , court, tribunal, regulatory commission or other body, whether legislative, judicial or executive (or a combination or permutation thereof), and any arbitrator to whom a dispute has been presented under Governmental Rule or by agreement of the parties with an interest in such dispute. "Governmental Rule" means any statute, law, treaty, rule, code, ordinance, regulation, permit, interpretation, certificate or order of any Governmental Authority, or any judgment, decision, decree, injunction, writ, order or like action of any court, arbitrator or other Governmental Authority. . "Land" shall mean the real property described on Exhibit A to the Lease. " Lease" means the Lease dated as January 20, 1999, between the City, as lessor, and RSR, as lessee, and covering the Land and Project Improvements, as the same may be amended, supplemented, modified, renewed or extended from time to time with the consent of RSR and the City. Lease. " Lease Commencement Date" means the "Commencement Date," as such term is defined in the "Lease Term" shall mean the "Term" as defined in the Lease. "Leased Premises" shall have the meaning given to it in the Lease. 23 "Legal Holiday" means the day, other than a Saturday or Sunday, on which the City's administrative offices are closed for business. "Master Agreement" means the Master Agreement Regarding Convention Center Complex Development dated as of the Effective Date between the City and RSR, as the same may be amended, supplemented, modified, renewed or extended from time to time with the consent of the City and RSR. "Operating Expenses" shall mean the costs to operate, repair, and maintain the Project Improvements. "Parties" shall have the meaning given to it in the first paragraph of the Master Agreement. "Person" shall mean any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, Governmental Authority or any other form of entity. "Pre -Financial Close Project Costs" shall have the meaning given to it in Section 7.1. "Post Financial Close Project Costs shall have the meaning given to it in Section 7.3. "Prime Rate" means the rate of interest from time to time published by the Wall Street Journal as the "prime rate". "Project" means the convention center complex defined in the Lease and this Master Agreement. "Project Budget" shall mean the total project budget, as from time to time amended, for all Project Costs, broken down in reasonable detail by "hard" and "soft" cost categories, including, but not limited to, separate line items for debt service requirements (net of earned interest on invested funds), the amount payable under each of the Project Construction Documents, allowances, contingencies, and pre -opening expenses. "Project Completion Date" means the later of (i) the date of Final Completion of all of the Project Improvements Work in accordance with all of the requirements of the Master Agreement and other transaction documents, (ii) payment in full of all Project Costs, and (iii) the Lease Commencement Date. "Project Construction Contract(s)" means the construction contract(s) approved by RSR and the City between the City or RSR and the Project Contractor for the construction of the Project Improvements, as the same may be amended, supplemented, modified, renewed, extended or replaced from time to time with the consent of the City and RSR. "Project Change Order Fund" shall mean a sum of money equal to $100,000.00. 24 "Project Change Orders" shall mean any changes in plans or specifications which are necessary after the performance of the Project Construction Contract is begun or if it is necessary to decrease or increase the quantity of work to be performed or of materials, equipment, or supplies to be furnished. The approval of Project Change Orders shall be in accordance with Section 252.048 Local Government Code. "Project Contract Sum" shall mean and refer to the "Contract Sum," as said term is used and defined in the Project Construction Contract. "Project Contractor" means the general contractor approved by the City. "Project Construction Documents" means any and all contracts, documents or other instruments entered into by or on behalf of the City or RSR for the performance of the Project Improvements Work, including, but not limited to, the construction contracts and the Architect's Contract, but excluding the Project Documents. "Project Costs" means all of the following costs incurred or to be incurred by the City in order for the City to fulfill its obligations under the Master Agreement, the Project Construction Documents, and cause Final Completion of the Project Improvements Work: (a) acquisition costs; (b) all amounts payable under any of the Project Construction Documents; (c) costs to obtain necessary easements or rights of way; (d) the following City development costs and fees: structural steel inspection fee, oversize fee, regional detention fee, and water meter fee; (e) legal costs; (f) costs for project management services; (g) all other costs incurred by the City and paid to third parties in accordance with the Master Agreement and Project Construction Documents to develop, construct, or furnish the Project including management fees and fees and expenses of architects, engineers, testing firms, accountants, attorneys, and other consultants necessary to complete the design, development, construction, and furnishing of the Project Improvements (Package B), including Project Change Orders; (h) all other costs in connection with the operation and maintenance of the Land prior to the Lease Commencement Date, including all remediation and abatement costs arising from removal of Hazardous Materials or addressing Environmental Conditions; and (i) all insurance premiums on all policies of insurance required to be carried by the City; provided however, that other costs incurred by the City in order to fulfill its aforesaid obligations, but not specifically enumerated herein shall be Project Costs subject to the approval of RSR, which approval shall not be unreasonably withheld, delayed or conditioned. "Project Fund" means the amount of money equal to the Project Contract Sum to complete the Project Improvements (Package B) plus the Project Change Order Fund. "Project Improvements" means the convention center complex, the parking improvements, all improvements thereto or comprising a part of any of the same and all appurtenances and amenities relating to any of the same, all as described more fully in the Project Construction Contract. Project Improvements are divided into the following two packages, which are further defined below: "Project Improvements (Package A)," and "Project Improvements (Package B)." 25 "Project Improvements (Package A)" means the following: Package Al Site grading including the installation of limited parking base, excavation and rough grading of the seating bowl and playing field area, and installation of the drilled, structural concrete piers. Package A2 Installation of the underground site utilities, including the fire loop, wastewater, storm drainage, 24 inch reinforced concrete pipe at road aprons, water service, electrical service, telephone service, gas service, parking and road base. "Project Improvements (Package B)" means the following: Package B1 Shop drawings and steel material for the structural steel framing. Package B2 All remaining work not described in Project Improvements (Package A), including receipt and erection of structural steel framing, foundations, construction and finish out of stadium and concessions, restrooms; total construction for the clubhouse, batting cage, conference center, commissary and team offices, and remainder of site improvements. "Project Improvements Work" means the design, development, construction, furnishing, and placement in service and Final Completion of the Project Improvements at and within the Land in accordance with the Master Agreement, the Project Submission Matters, all applicable Governmental Rules and the Project Plans. "Project Plans" means individually and collectively, the concept drawings, schematic drawings, design development drawings and detailed working drawings and specifications for the Project Improvements prepared by the Architect in the form approved by RSR and the City. "Project Savings" means the amount by which Project Costs are less than the amount of the Project Fund and shall include, without limitation, the amount of all reductions in the Project Contract Sum (after execution of the Project Construction Contract), and all other savings or reductions in the amounts payable by the City under any Construction Document. "Project Submission Matters" means each and all of the following, the issuance or completion thereof, and any changes to, or modifications of, any of the following: (a) The Project Budget and the Debt Plan; (b) The Project Improvements Construction Schedule; 26 (c) The Project Plans; (d) The Project Construction Contract; (e) Any Project Change Orders, the cost of which would exceed the Project Change Order Fund, or any other change order to which the Project Contractor may be entitled under the Project Construction Contract ; (f) Any of the following under the Project Construction Documents: (g) (i) Changes in scope or systems; (ii) Changes in quantity, kind, brand, manufacturer or quality of materials, finishes or equipment; (iii) Changes in schedule; (iv) Selection of, and/or changes in, allowance items; (v) Changes in overall appearance or amenities; and Equipment Leases; (h) Service Contracts; and (i) Any contract or agreement for inspection of the Project Improvements or other agreement the cost of which would constitute a Project Cost. "Project Term" shall have the meaning given to it in Section 3.1 of the Master Agreement. "Review and Approval or Consent Rights" shall have the meaning given to it in Section 17.3.1 of the Master Agreement. "Reviewing Party" shall have the meaning given to it in Section 17.3.1 of the Master Agreement. "RSR" means Ryan Sanders Ryan, Inc., a Texas corporation. "RSR's Contribution" means the sum of money equal to the difference between the Project Fund and the City's Contribution. "RSR Default" shall have the meaning given to it in Section 14.1.2 of the Master Agreement. 27 "RSR Representatives" shall have the meaning given to it in Section 2.2 of the Master Agreement. "Service Contract" means each and every contract or agreement with respect to the provision of services to the Leased Premises which will, or is intended to, survive the Lease Commencement Date including, without limitation, maintenance contracts, contracts for the provision of utility services, landscaping contracts, and refuse disposal contracts. "Submitting Party" shall have the meaning given to it in Section 17.3.1 of the Master Agreement. "Substantial Completion" shall have the meaning given to it in the Project Construction Contract. "Substantial Completion Date" shall mean the date on which Substantial Completion of all of the Project Improvements Work occurs. "Substantially Ail of the Leased Premises and Improvements" shall have the meaning given to it in Section 13.1.2 of the Master Agreement. "Transfer" shall have the meaning given to it in Section 15.1 of the Master Agreement. "Warranty Claim" shall have the meaning given to it in Section 8.6 of the Master Agreement. 28 APPENDIX B TO Master Agreement ADDRESSES FOR NOTICES (1) All notices to the City shall be sent to: City of Round Rock 221 E. Main St. Round Rock, Texas 78664 Attention: Robert L. Bennett, City Manager Facsimile Number: 512-218-7097 with copies being sent to: Stephan L. Sheets City Attorney 309 E. Main St. Round Rock, Texas 78664 Facsimile Number: 512-255-8986 (2) All notices to RSR shall be sent to: Ryan Sanders Ryan, Inc. P.O. Box 5309 Round Rock, Texas 78683 Attention: Reid Ryan Fax: (512) 255-1558 With copy to: Nolan Ryan 2900 South Gordon Alvin, Texas 77512 Fax: (281) 585-2238 EXHIBIT "A" TO Master Agreement PRE -FINANCIAL CLOSE PROJECT COSTS Category Schedule of Services cost 1 Engineering, surveying, testing $ 52,401 2 Legal services 82,970 3 Appraisal services 750 4 Agrarian services 1,000 5 Feasibility studies 40,500 6 Architectural services 75,000 7 Media services 20,075 8 Travel, transportation 500 9 Miscellaneous 26,804 $ 300,000 30 EXHIBIT "B" TO Master Agreement FINANCING RELATED PROJECT COSTS Deposit to Debt Service Reserve Fund Deposit to Capitalized Interest Fund Underwriter Discount Original Issue Discount Costs of Issuance (City) 31 CONVENTION CENTER COMPLEX LEASE AGREEMENT by and between CITY OF ROUND ROCK, TEXAS as Lessor and RYAN SANDERS RYAN, INC. as Lessee Dated: January 20, 1999 C:\WPDOCS\ACITY\PROJ34\LEASES\FINAL_EX.WPD/sle TABLE OF CONTENTS ARTICLE I DEFINITIONS 1 Section 1.1. Definitions 1 ARTICLE II REPRESENTATIONS AND WARRANTIES 4 Section 2.1. Representations and Warranties by Lessor 4 Section 2.2. Representations and Warranties by Lessee 5 ARTICLE III LEASE OF Section 3.1. Section 3.2. Section 3.3. Section 3.4. Section 3.5. Section 3.6. Section 3.7. Section 3.8. • LEASED PREMISES 6 Grant 6 Term 6 Rent 6 Option to Extend; Rentals Beyond Term 6 Permitted Uses 7 Compliance with Laws 7 Construction of Convention Center. 8 Obligations of Lessee Unconditional 8 ARTICLE IV BEGINNING CONDITION, ALTERATIONS AND IMPROVEMENTS 8 Section 4.1 Beginning Condition 8 Section 4.2. Alterations 8 Section 4.3. Compliance with Regulatory Requirements 8 Section 4.4. Ownership of Improvements 9 Section 4.5. Lessor's Right of Inspection 9 Section 4.6. Performance and Payment Bonds 9 ARTICLE V ADDITIONAL COVENANTS OF LESSOR AND LESSEE 9 Section 5.1. Maintenance and Operation Expenses of the Leased Premises 9 Section 5.2. Taxes and Other Charges 10 Section 5.3. Liens and Encumbrances 11 Section 5.4. Maintenance and Warranty Contracts 11 Section 5.5. Surrender of Possession 11 Section 5.6. Operation 11 Section 5.7. Right of Lessee to Revenues 11 Section 5.8. Naming and Other Rights 12 Section 5.9. Advertising Content. 12 Section 5.10. Notification of Events of Default 12 Section 5.11. Right of First Refusal. 12 Section 5.12. Capital Repair Account; Capital Improvement Program Account. 12 Section 5.13. Lessee to Provide Scoreboard. 13 Section 5.14. Lessor's Right of Entry and Inspection. 13 11 Section 5.15. Lessor's Use of Leased Premises. 14 Section 5.16. Sales Taxes; Location of Ticket Office. 14 Section 5.17. Obligation to Provide Professional Baseball Team. 14 Section 5.18. Letter of Credit for Debt Payments Shortfall. 14 Section 5.19. Concession Improvements; Access. 14 ARTICLE VI INSURANCE AND CONDEMNATION 14 Section 6.1. Lessee's Insurance 14 Section 6.2. Workers' Compensation Insurance. 14 Section 6.3. Employers' Liability Insurance. 15 Section 6.4. Commercial General Liability: Bodily Injury/Property Damage. 15 Section 6.5. Comprehensive Automobile Liability. 15 Section 6.6. Garagekeeper's Liability. 15 Section 6.7. Umbrella Excess Liability Insurance 15 Section 6.8. Lessor's Property 15 Section 6.9. Evidence of Insurance 16 Section 6.10. Insurance Requirements for Lessee's Contractors and Subcontractors 15 Section 6.11. Release and Waiver 16 Section 6.12. Insurers and Policies 16 ARTICLE VII INDEMNIFICATION 17 Section 7.1. Indemnification 17 Section 7.2. Indemnification Procedures. 18 Section 7.3. Survival Right to Enforce 18 ARTICLE VIII ASSIGNMENTS; LEASEHOLD MORTGAGES; LEASEBACK 19 Section 8.1. Assignment and Subleasing 19 Section 8.2. Notice of Intent 19 Section 8.3. Conditions Upon Lessor's Consent to Assignment 19 Section 8.4. Subleases and Concession Arrangements 20 Section 8.5. Leasehold Mortgages 20 ARTICLE IX DEFAULT Section 9.1. Section 9.2. Section 9.3. Section 9.4. Section 9.5. Section 9.6. Section 9.7. 20 Events of Default 20 Remedies of the Lessor on Default 21 The Lessee To Remain Liable for Payments; Reletting 21 Remedy on Lessor's Default 21 No Remedy Exclusive 21 No Additional Waiver Implied By One Waiver; Consents to Waiver 22 Delay not a Waiver 22 ARTICLE X DAMAGE AND CONDEMNATION 22 Section 10.1. Damage and Destruction 22 Section 10.2. Condemnation. 23 iii ARTICLE XI MISCELLANEOUS 24 Section 11.1 Amendments, Changes and Modification 24 Section 11.2 Applicable Law 24 Section 11.3 Severability 24 Section 11.4 Notices and Demands 24 Section 11.5 References 25 Section 11.6 Successors and Assigns 25 Section 11.7 Multiple Counterparts 25 Section 11.8 Recordation 25 Section 11.9 Attorneys' Fees 25 Section 11.10 Time is of the Essence. 25 Section 11.11 Landlord / Tenant Relationship. 26 Section 11.12 Lessee's Remedial Work. 26 Section 11.13 Lessor's Remedial Work. 26 Section 11.14 Abatement of Rent 26 Section 11.15 Settlement By Mutual Agreement 26 Section 11.16 Covenants Running with the Estates in Land 27 Section 11.17 Non -Appropriation 27 Section 11.18 Conflicts 27 EXHIBIT A DESCRIPTION OF THE LAND iv CONVENTION CENTER COMPLEX LEASE AGREEMENT This Convention Center Complex Lease Agreement ("Lease") is made and entered into as of January 20, 1999, by and between the City of Round Rock ("Lessor"), a Texas home rule municipal corporation, and Ryan Sanders Ryan, Inc. ("Lessee"), a corporation organized and existing under the laws of the State of Texas; WITNESSETH: WHEREAS, Lessee has purchased the controlling interest in the Jackson Generals Double A Texas League baseball team and has expressed its desire to relocate the team to Round Rock; and WHEREAS, Lessor has a need for a convention center complex to hold conventions, meetings, trade shows, exhibitions, concerts, sporting events, and similar functions; and WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to lease from Lessor, the Leased Premises (as herein defined), to be used as a convention center complex, subject to and upon the terms and conditions set forth herein; NOW THEREFORE, in consideration of the rents herein required to be made by Lessee, and the covenants and agreements hereinafter contained to be kept and performed by Lessee, Lessor does by these presents demise, lease and let unto Lessee, for the term and upon the conditions hereinafter stated, the Leased Premises; and SUBJECT to the following terms and conditions: ARTICLE I DEFINITIONS Section 1.1. Definitions. In addition to terms defined elsewhere in this Lease, the following terms, for the purposes of this Lease, shall have the meanings set forth below: (a) "Act of Bankruptcy" means the commencement of a bankruptcy or similar proceeding by or against Lessee or Lessor, including, but not limited to, the following: the making of a general assignment for the benefit of creditors, the commencing of a voluntary or involuntary case under the Federal Bankruptcy Code or the filing of a petition thereunder, petitioning or applying to any tribunal for the appointment of, or the appointment of, a receiver, or any trustee for a substantial part of the assets of such person, commencing any proceeding under any bankruptcy, reorganization, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect. (b) "Agreements" means this Lease and the Master Agreement. (c) "Authorized Representatives" means such officers or employees of Lessee and Lessor, respectively, authorized by such party to act on its behalf under this Lease as certified to the other in writing. (d) "Business Day" means any day which is not a Sunday, a Saturday, a legal holiday or a day on which national banking institutions in the City of Round Rock, Texas, are authorized by law or executive order to close. (e) "City" means the City of Round Rock, Texas, a home -rule city organized and existing under the laws of the State. (f) "Commencement Date" means the thirtieth (30th) day following the Substantial Completion Date (as defined in the Master Agreement) or the date on which Lessee opens the Leased Premises to the public, whichever first occurs. (g) "Concession Improvements" means the interior improvements and build out for concession operations. (h) "Convention Center" means the convention center complex, meeting space and the baseball stadium to be constructed on the Land. It is intended that the Convention Center will be used and managed as a "convention center complex" as defined in Chapter 351 of the Texas Tax Code. (i) "County" means the County of Williamson, Texas. (j) "Force Majeure" means Acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, orders of any kind of the government of the United States of America, or of any state thereof, or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, tornadoes, storms, floods, washouts, droughts, arrests, restraining of government and people, civil disturbances, explosions, nuclear accidents, wars, part or entire failure of utilities, shortages of labor, material, supplies or transportation, or any other cause not reasonably within the control of the party claiming inability to perform due to such cause. "Force majeure" shall not, however, include economic hardship. (k) "Governmental Authority" means any federal, state or local government, agency, court, commission or other body with jurisdiction of the matter in question. (1) "Hazardous Materials" means any substance or material, including asbestos, now or hereafter defined or listed by any Governmental Authority as a regulated or hazardous substance, material, or waste and shall include, without limitation, petroleum products. (m) "Land" means the land described in Exhibit "A" hereto. (n) "Leased Premises" means (i) the Land; (ii) the Convention Center; and (iii) any other buildings, structures, additions, improvements, fixtures and facilities directly related to the Convention Center, and all appurtenances to the same, which are in the future constructed on the Land, pursuant to the terms and conditions of Section 4.Z. (o) "Lessee" means Ryan Sanders Ryan, Inc., a corporation duly organized and validly existing under the laws of, and authorized to do business in the State, or any successor thereto or assignee thereof permitted by this Lease. (p) "Lessor" means the City of Round Rock, a Texas home rule municipality. (q) "Master Agreement" means that certain Master Agreement Regarding Convention Center Complex Development to be entered into by and between Lessor and Lessee. (r) Person" means any association, individual, corporation, governmental entity, partnership, joint venture, business association, estate or any other organization or entity. (s) "Rentals" shall have the meaning ascribed thereto in Section 3.3. 2 (t) "Sanctioning Association" means the Texas League, and the National Association of Professional Baseball Leagues, Inc., their respective successors, if any, and any replacement or additional baseball association that Lessee certifies to Lessor is a nationally recognized professional baseball association that sanctions professional baseball. (u) "State" means the State of Texas. (v) "Subsidiary" means, as to any Person, any corporation, association or other business entity in which such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such entity, and any partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned by such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries. (w) "Targeted Tax" means any admission tax, parking tax, facility use tax and any other tax not in effect as of the date hereof that either by its terms or effect of its application is not of general application but is applicable to Lessee, the revenues from Lessee's conduct of its business, the activities on the Leased Premises, or the Lessee's personnel. (x) "Term" shall have the meaning ascribed thereto in Section 3.2. (y) "Untenantable Condition" shall mean the existence of any one of the following conditions but only to the extent the same is not the result of the failure of Lessee to perform it obligations as required under the Lease: (i) The Leased Premises are not in compliance with rules and regulations of the applicable Sanctioning Association for any reason, the result of such non-compliance is that the Sanctioning Association, or its rules, prohibit Lessee from conducting sanctioned games or authorizes the Sanctioning Association to assess fines or penalties, and the Lessor fails to cause the same to be placed into compliance within a reasonable time following Lessor's receipt of written notice of such non-compliance (Lessor hereby agreeing to perform such work as necessary to keep the Leased Premises in compliance); (ii) The use or occupancy of the Leased Premises for baseball games is not permitted under applicable governmental rule or is restricted in any material respect under applicable governmental rule, including, but not limited to, denial of access; or (iii) The use or occupancy of thirty percent (30%) or more of any of the public seating areas, other public areas, or parking areas, within the Leased Premises are materially restricted or are unusable for a period of ninety (90) consecutive days or ninety (90) days out of any consecutive one hundred eighty (180) day period; or (iv) The use or occupancy of fifteen percent (15%) or more of the private suites or concession areas within the Leased Premises are materially restricted or are unusable for a period of sixty (60) consecutive days or ninety (90) days out of any consecutive one hundred eighty (180) day period. 3 ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1. Representations and Warranties by Lessor. Lessor makes the following representations and warranties as the basis for the undertakings on its part herein contained: (a) Lessor is a home rule municipal corporation, existing and in good standing under the laws of the State, and has the power to enter into the transactions contemplated by each of the Agreements to which it is a party and to carry out its obligations thereunder. By written resolution, the City has duly approved the execution and delivery by Lessor of each of the Agreements to which Lessor is a party. (b) Lessor has taken all action and has complied with all provisions of law with respect to the execution, delivery and performance of each of the Agreements to which it is a party and the due authorization of the consummation of the transactions contemplated thereby, and each of the Agreements to which it is a party has been duly executed and delivered by, and constitutes the valid and legally binding obligation of, Lessor, enforceable against Lessor in accordance with their respective terms. (c) Neither the execution and delivery of any of the Agreements to which it is a party, the consummation of the transactions contemplated thereby, nor the fulfillment of or compliance with the terms and conditions of the Agreements, violate any law or regulation, or any judicial order, judgment, decree, or injunction, conflict with or results in a breach of any of the terms, conditions or provisions of any restriction, ordinance or any agreement or instrument to which Lessor is now a party or by which it is bound, or constitute a default under any of the foregoing, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of Lessor under the term of any instrument or agreement. (d) There is no litigation now pending or, to Lessor's knowledge, threatened challenging the powers of Lessor or in any way affecting any of the Agreements to which it is a party. (e) The execution and delivery of any of the Agreements, the consummation of any of the transactions contemplated thereby or compliance with the terms and provisions thereof do not and will not (i) violate any law or regulation or any order or decree of any court or governmental instrumentality applicable to Lessor, which violation would materially and adversely affect the ability of Lessor to perform its obligations under any of the Agreements; (ii) conflict with or would result in the breach of, or constitute a default under, any of the Agreements, or any other contract, lease, indenture, loan agreement, mortgage, deed of trust or other agreement or instrument to which Lessor is a party or by which Lessor or its property may be bound, which conflict, breach or default would materially and adversely affect the ability of Lessor to perform its obligations under any of the Agreements; or (iii) violate the charter, articles of incorporation or bylaws of Lessor. No consent, approval authorization or order of any governmental or regulatory authority, agency, commission or board of arbitration was or will be required in connection with the execution and delivery by Lessor of any of the Agreements or the consummation of the transactions contemplated thereby or compliance with the terms and provisions thereof, except such as have been obtained and are in full force and effect. (f) To the best of Lessor's knowledge, no event has occurred and no condition currently exists, which constitutes or may, with the passage of time or the giving of notice, or both, constitute an Event of Default with respect to or on the part of Lessor under any of the Agreements or that could materially adversely affect the ability of Lessor to perform its obligations thereunder. 4 Section 2.2. Representations and Warranties by Lessee. Lessee makes the following representations and warranties as the basis for the undertakings on its part herein contained: (a) Lessee is a corporation duly organized under the laws of the State and duly qualified to do business in the State, is in good standing in the State, has power to execute and enter into each of the Agreements to which it is a party and by proper corporate action has been duly authorized to execute and deliver this Lease. (b) Each of the Agreements to which it is a party have been duly executed and delivered by duly authorized officers of the Lessee, and constitute valid and binding obligations of Lessee, enforceable against Lessee in accordance with their respective terms. (c) No approvals or consents, other than those that have been or will in normal course be obtained, are necessary in order for Lessee to execute and deliver any of the Agreements to which it is a party. (d) There is no litigation now pending or, to Lessee's knowledge, threatened, challenging the corporate existence of the Lessee and there is no pending, or to Lessee's knowledge, threatened action or proceeding before any court or administrative agency that individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material adverse effect on the financial condition of the Lessee or the ability of the Lessee to perform its obligations under any of the Agreements to which it is a party. (e) The execution and delivery of any of the Agreements, the consummation of any of the transactions contemplated thereby or compliance with the terms and provisions thereof do not and will not (i) violate any law or regulation or any order or decree of any court or governmental instrumentality applicable to Lessee or any of its Subsidiaries, which violation would materially and adversely affect the ability of Lessee to perform its obligations under any of the Agreements; (ii) conflict with or would result in the breach of, or constitute a default under, any of the Agreements, or any other contract, lease, indenture, loan agreement, mortgage, deed of trust or other agreement or instrument to which Lessee is a party or by which Lessee or its property may be bound, which conflict, breach or default would materially and adversely affect the ability of Lessee to perform its obligations under any of the Agreements; or (iii) violate the charter, articles of incorporation or bylaws of Lessee. No consent, approval authorization or order of any governmental or regulatory authority, agency, commission or board of arbitration was or will be required in connection with the execution and delivery by Lessee of any of the Agreements or the consummation of the transactions contemplated thereby or compliance with the terms and provisions thereof, except such as have been obtained and are in full force and effect. (f) Lessee has duly and validly obtained all material certificates, licenses and permits from all public authorities, both federal and state, required to enable Lessee to carry on its business as it is now conducted and to enter into any of the Agreements to which it is a party. (g) To the best of Lessee's knowledge, no event has occurred and no condition currently exists, which constitutes or may, with the passage of time or the giving of notice, or both, constitute an Event of Default with respect to or on the part of Lessee under any of the Agreements to which it is a party or that could materially adversely affect the ability of Lessee to perform its obligations thereunder. 5 ARTICLE III LEASE OF LEASED PREMISES Section 3.1. Grant. (a) In consideration of and pursuant to the covenants, agreements, and conditions set forth herein, Lessor does hereby lease, let, demise, and rent exclusively unto Lessee, and Lessee does hereby rent and lease from Lessor, the Leased Premises. On the Commencement Date, Lessor will give and deliver to Lessee exclusive possession and occupancy of the Leased Premises free of all tenancies and parties in possession of such Leased Premises (other than those arising by, through or under Lessee) and free of all Hazardous Materials. Lessor shall deliver the Leased Premises to Lessee on the Commencement Date in good condition and repair and in a clean and orderly condition. (b) Lessor covenants for the Term that Lessee, upon paying the Rentals and upon keeping, observing and performing the terms, covenants and condition of this Lease to be kept, observed and performed by Lessee, shall and may quietly and peaceably hold, occupy, use, and enjoy the Leased Premises without ejection or interference by or from Lessor, subject only to the terms and provisions set forth herein. (c) Lessor covenants that Lessee's leasehold interest in, and other rights to, the Leased Premises arising under this Lease shall be senior and prior to any lien existing, created or arising in connection with the acquisition, development, construction or financing of the Leased Premises or any portion thereof. The foregoing does not extend to any liens arising by, through or under Lessee or its agents acting in such capacity. Section 3.2. Term. The term (the "Term") of this Lease shall commence upon the Commencement Date and shall continue through the day which is sixty (60) days after the conclusion of the last home game (regular season or playoff, as the case may be) conducted by Lessee in the Leased Premises during the twenty-fifth (25th) full baseball season after the Commencement Date, or until the expiration of the option period if exercised under Section 3.4, unless earlier terminated in accordance with the terms hereof. Section 3.3. Rent. Lessee agrees to pay annual rental ("Rentals") for each year during the Term in the amount of One Dollar ($1.00), the first installment of such annual rent being due and payable on the Commencement Date and a like installment being due and payable on each anniversary thereof during the Term. Section 3.4. Option to Extend; Rentals Beyond Term. Lessee shall have the right and option to extend the Term of this Lease for one additional extended period of 10 years upon receipt of the following: (i) written notice delivered to the Lessor on or before September 30, 2023 stating the Lessee's intent to exercise the option and (ii) an opinion of bond counsel for the Lessor that the extension pursuant to the terms of this Lease will not adversely affect the tax exempt status of any debt issued related to the Convention Center. In the event the Lessee exercises such option, Lessee shall pay to Lessor an annual rental during the extended period without demand, in an amount equal to the annual fair market rental value, as of the first day of the extended period, of all buildings, fixtures, or other improvements then located upon the Land (excluding the equipment and fixtures installed by Lessee) as encumbered by the then existing improvements agreed upon by Lessor and Lessee. If Lessor and Lessee have failed to agree upon the annual fair market rental value within sixty (60) days after Lessee's delivery of such notice, the parties shall submit the dispute to mediation in accordance with the Section 11.14 below with each party submitting to the mediator such party's determination of the annual fair market rental value of the Land, and the mediator selecting from such submittals the annual fair market rental value. The mediator shall select either the Lessor's submittal or the Lessee's submittal, whichever, in the opinion of the mediator, is closest to the mediator's determination of fair market rental value. The decision of the mediator shall be final. 6 The annual rental during the extended period shall be adjusted annually, beginning on the first anniversary of the commencement of the extended period with a subsequent adjustment each anniversary of such date thereafter during the extended term, to an amount equal to the greater of (x) the annual rent in effect for the immediately preceding Lease year or (y) the CPI Adjusted Rent (defined below). The "CPI Adjusted Rent" means an amount equal to (i) the product obtained by multiplying the annual rent in effect immediately prior to such adjustment times (ii) one plus a fraction, the numerator of which is the difference between the Consumer Price Index (as defined below) most recently published at the time of calculation (the "Current CPI") minus the Consumer Price Index as published at the commencement of the extended term (the "Base CPI") and the denominator of which shall be the Base CPI (provided, however, in on event shall such fraction be less than zero). The CPI Adjusted Rent is illustrated by the following formula: Annual rent in effect times 1 plus [(Current CPI minus Base CPI)/Base CPI] = adjusted annual rent. The "Consumer Price Index" shall mean the Department of Labor, Bureau of Statistics, Consumer Price Index - U.S. City Average, All Items (1982-84=100). The Consumer Price Index for any year shall be that published most closely to the date of adjustment in the annual rent. If the manner is which the Consumer Price Index is determined by the Bureau of Labor Statistics shall be substantially revised, including, without limitation, a change in the base year index, an adjustment shall be made by the parties in such revised index which would produce results equivalent, as nearly as possible, to those which would have been obtained had the Consumer Price Index not been so revised. If the Consumer Price Index becomes unavailable to the public because publication is discontinued or otherwise, or if equivalent data is not readily available to enable the parties to make the calculations referred to herein, then the parties shall substitute therefor a comparable index based upon changes in the cost of living or purchasing power of the consumer dollar published by any other governmental authority or agency, or if no such index is available, then a comparable index published by a major, national bank or nationally recognized financial publication. Section 3.5. Permitted Uses. Throughout the Term, Lessee shall occupy and use the Leased Premises for the primary purposes of operating a "convention center complex" as defined by § 351.001 of the Texas Tax Code. The permitted uses shall include the conducting of conventions, meetings, trade shows, exhibitions, concerts, public entertainment events, professional minor league baseball games (including radio and television broadcasting [or other transmission] of the same), other baseball games and sporting events, and other similar functions that will encourage tourism in the City of Round Rock and/or promote the arts; and for purposes related and incidental thereto (including, without limitation, operation of concession facilities, sale of food and beverages [alcoholic and non-alcoholic], conducting tours, storage, and office uses), and for no other purpose without the prior written consent of Lessor. Section 3.6. Compliance with Laws. (a) Lessee shall, throughout the Term, and at no expense to Lessor, promptly comply or cause compliance with all laws, ordinances, orders, rules, regulations and requirements of duly constituted Governmental Authority, which may be applicable from time to time to its use of the Leased Premises and its operation, repair and alteration thereof. (b) Lessee shall not, however, be required to comply or cause compliance with such laws, ordinances, orders, rules, regulations or requirements, if Lessee is, after prior written notice to Lessor, contesting the same or the validity thereof in good faith, at Lessee's expense by appropriate proceedings; and provided further, such noncompliance will not have a material adverse effect on the Leased Premises or the Lessee or the performance of its obligations hereunder. Such contest may be made by Lessee in the name of Lessor or Lessee, or both, as Lessee shall reasonably determine, and Lessor shall, at Lessee's expense, cooperate with Lessee in any such contest to such extent as Lessee may reasonably request; provided, however, the Lessee may not contest in the name of Lessor any law, ordinance, rule, 7 regulation, order or requirement of Lessor, and the Lessor has no obligation to cooperate in any such contest against Lessor. Lessor shall not, however, be subject to any liability for the payment of any costs or expenses in connection with any such proceedings brought by Lessee, and Lessee covenants to pay, and to indemnify and save Lessor harmless from, any such costs or expenses, including, but not limited to, court costs and attorneys' fees. Section 3.7. Construction of Convention Center. Lessee acknowledges that the Lessor has not yet constructed the Convention Center. However, Lessor agrees to construct the Convention Center as expeditiously as possible for use by the Lessee pursuant to this Lease. The Convention Center is to be constructed in accordance with the Master Agreement. Section 3.8. Obligations of Lessee Unconditional. The obligation of the Lessee to pay the Rentals, to pay the premiums or charges necessary to maintain or cause to be maintained the insurance required by Article VI, and to provide the indemnity required set forth herein hereof shall be absolute and unconditional and shall not be subject to any defense (other than payment) or any right of set-off, counterclaim, abatement or otherwise except as expressly permitted by this Lease or the Master Agreement. ARTICLE IV BEGINNING CONDITION, ALTERATIONS AND IMPROVEMENTS Section 4.1 Beginning Condition. On the Commencement Date, Lessor shall deliver exclusive and vacant possession of the Leased Premises to Lessee with all improvements having been substantially completed and in good working order and condition. Section 4.2. Alterations. Any subsequent alterations, additions, or construction of new improvements on or in the Leased Premises must be consistent with the permitted uses of the Leased Premises as set forth in Section 3.5 and must be consistent with the then appearance of the Leased Premises and the uses being made thereof; and must be approved in advance in writing by Lessor, such approval not to be unreasonably withheld; provided, however, Lessee is not required to obtain Lessor's prior approval for (a) non-structural remodeling or installation or removal of trade fixtures and equipment; (b) temporary improvements or alterations to accommodate particular events; (c) alterations required to comply with any applicable law or any Sanctioning Association; (d) alterations resulting from restorations or repairs of existing facilities; or (e) any alterations (structural or non- structural) costing less than $100,000, with respect to any single alteration, or $500,000 in any calendar year with respect to a series of alterations. Notwithstanding the foregoing, Lessee shall have the right to construct additional facilities upon the Land so long as the same are consistent in exterior appearance with the architectural theme of the Convention Center, Lessee provides Lessor reasonable evidence of Lessee's ability to pay for the same, and so long as the same, when completed, will not have reduced the overall utility of the Leased Premises or weakened or impaired the structural integrity of the Leased Premises. Anything to the contrary herein notwithstanding, no such alterations, additions or improvements shall cause the facilities within the Leased Premises to cease to qualify as a "convention center complex" under § 351.001 of the Texas Tax Code. Section 4.3. Compliance with Regulatory Requirements. Lessee agrees that all additions and alterations on or to the Leased Premises constructed by it shall be constructed in accordance with all applicable ordinances and statutes of Governmental Authority as well as the codes of the Lessor. Lessee shall, at its sole cost and expense, procure or cause to be procured all necessary building permits, other permits, licenses and other authorizations required for the lawful and proper addition to or alteration, use, occupation, operation, and management of the Leased Premises (Lessor agrees to cooperate with Lessee's efforts with respect thereto). 8 Section 4.4. Ownership of Improvements. Provided and for so long as no Event of Default has occurred hereunder, title to and ownership of the Leased Premises during the Term of this Lease shall be and remain in Lessor, (except for trade fixtures, furniture, equipment, furnishings and other personal property installed in or affixed to the Leased Premises by or on behalf of Lessee [collectively, the "Removables"] all of which shall remain Lessee's sole property). At the expiration or other termination of the Lease, all alterations, additions, and improvements to the Leased Premises (except for the Removables) must remain upon and be surrendered with the Leased Premises. Section 4.5. Lessor's Right of Inspection. Prior to Lessor giving or withholding its consent to any proposed construction, alteration, or addition to the Leased Premises requiring such consent as set forth in Section 4.2, Lessor may review Lessee's conceptual design drawings and construction drawings for such construction work, the reasonable, out-of-pocket costs paid to third parties therefor to be paid by Lessee. Upon completion of any new construction or alteration or addition to existing improvements for which Lessor's approval is needed under the terms of this Lease, Lessee shall obtain a written certification addressed to Lessor from a licensed architect or engineer reasonably acceptable to Lessor stating that the construction has been completed substantially in accordance with the construction drawings and that, to the best of each professional's knowledge, the completed improvements are in compliance with all applicable ordinances, statutes, and the requirements of all Governmental Authority. Section 4.6. Performance and Payment Bonds. Prior to Lessee commencing any construction project estimated to cost greater than $500,000, Lessee shall provide a statutory form payment and performance bond for such project. ARTICLE V ADDITIONAL COVENANTS OF LESSOR AND LESSEE Section 5.1. Maintenance and Operation Expenses of the Leased Premises. Lessee shall, at its sole cost and expense, keep, maintain, and operate the Leased Premises, including the interior and exterior, structural and non- structural portions of the improvements, in as good repair as exists on the Commencement Date and in compliance with all applicable laws, regulations, orders and other governmental requirements of Governmental Authority applicable to the Leased Premises from time to time, subject to ordinary wear and tear, damage from casualty and events of condemnation. Lessor has no maintenance and repair obligations under this lease (but does have certain warranty obligations as described in the Master Agreement) and subject to the Lessor's obligations as set forth below. Lessor has no obligation to pay any operating expenses of the Leased Premises except as set forth in Section 5.15 below. Notwithstanding the foregoing or any contrary provision hereof, Lessee shall have no responsibility or obligation to make or perform any work necessary to repair, restore, replace, or refurbish any equipment, facility, structure or other component of the Leased Premises (collectively, "Capital Repair Work") if such Capital Repair Work is necessitated by (i) any defects in the construction of the improvements constructed under the Master Agreement (ii) the deterioration of such equipment, facility, structure or other component (for reasons other than Lessee's failure to perform routine maintenance with respect thereto) to the degree that the same is no longer suitable for the purposes intended and cannot reasonably be returned to a useful condition through regular maintenance, or (iii) modifications required by any Governmental Authority or any Sanctioning Association. Capital Repair Work shall not include regular or routine maintenance nor shall it include any work needed to the Removables or work to the Concession Improvements. Furthermore, Lessee shall have no obligation to perform any Capital Repair Work unless there are sufficient proceeds therefor in the Capital Repair Work Account or the Capital Improvement Program Account (defined below) and Lessor makes such proceeds available to Lessee therefor. However, in the event the need for the Capital Repair Work is attributable solely to Lessee's failure to perform its maintenance obligations hereunder, Lessee shall be solely responsible for performing and paying for 9 such Capital Repair Work. In all events Lessor shall be obligated to bear, pay and be responsible for the following ("Lessor's Expenses"): (a) The costs of Capital Repair Work attributable to any casualty or failure of any part or parts of the foundation, structure or structural support members of the Leased Premises; (b) All expenses of repair and restoration due to events of condemnation; and (c) All costs and expenses of Lessor's Remedial Work (defined below). The Lessor's Expenses may be paid from the Capital Repair Work Account, but the inadequacy of funds therein shall not release or relieve Lessor from its obligation to perform the work described in the foregoing clauses (a) through (c) nor from its obligation to pay all of the Lessor's Expenses. Section 5.2. Taxes and Other Charges. Lessee shall pay prior to delinquency, in addition to the payment of Rentals, each and every lawful cost, expense and obligation of every kind and nature, foreseen or unforeseen, by reason of Lessee's estate or interest in the Leased Premises or any portion thereof or by reason of or in any manner connected with or arising out of Lessee's possession, operation, maintenance, alteration, repair, rebuilding, use or occupancy of the Leased Premises, or any part thereof. Lessee shall pay and discharge, prior to the delinquency thereof, all lawful assessments, ad valorem taxes, sales taxes, business and occupation taxes, occupation license taxes, water charges, or sewage disposal charges, imposed on the Leased Premises and Lessee's use and occupancy of the Leased Premises, and all other governmental taxes, impositions, and charges of every kind and nature, ordinary or extraordinary, general or special, foreseen or unforeseen, whether similar or dissimilar to any of the foregoing, and all applicable interest and penalties, if any, which at any time during the Term becomes due and payable by Lessee because of its rights or obligations under this Lease and which is lawfully levied, assessed or imposed on Lessee or the Leased Premises under or by virtue of any present or future law, statute, ordinance, regulation or other requirement of any governmental authority, whether federal, state, county, city, municipal, school or otherwise. Lessee, upon written notice to Lessor, may contest in good faith any such tax, imposition, charge or assessment levied by any governmental authority (other than water charges or sewage disposal charges), and in such event may permit such tax, imposition, charge or assessment (other than water charges or sewage disposal charges) to remain unsatisfied during the period of such contest and any appeal, provided, however, that prior to the commencement of such contest Lessee shall demonstrate to Lessor either (a) that Lessee will have sufficient funds to pay such assessment if the contest is unsuccessful or (b) that Lessee has deposited into a separate escrow account funds equal to the contested amount, together with the anticipated interest and penalties, if any, that would be incurred in the event of an unfavorable disposition. Lessee also shall pay or cause to be paid all lawful charges for gas, water, sewer, electricity, light, heat, power, telephone, and other utilities and services used, rendered or supplied to, upon or in connection with the Leased Premises. Lessee shall furnish to Lessor promptly upon request, proof of the payment or timely contest of any such tax, assessment or other governmental or similar charge, or any utility charge which is payable by Lessee, or evidence of the deposit of such funds into a reserve account, all as set forth above. Notwithstanding the foregoing, in the event the Leased Premises is not exempt from property taxation due to any failure of Lessor, then Lessor shall be solely responsible for such tax. Furthermore, in the event a Targeted Tax is ever imposed by Lessor, then Lessee shall be entitled to a credit against all Rentals then due and thereafter becoming due so as to enable Lessee to recapture the amount of the Targeted Tax paid by Lessee; provided, that, in the event there are insufficient Rentals due and to become due hereunder to enable Lessee to recapture through offset against the Rentals the amount of Targeted Tax paid by Lessee, Lessor shall directly pay to Lessee the amount of such excess Targeted Tax within thirty (30) days following Lessee's submittal to Lessor of an invoice therefor. The provisions of this paragraph shall expressly survive the expiration or sooner termination of this Lease. 10 Section 5.3. Liens and Encumbrances. Lessee covenants and agrees that, except for this Lease, it will not create or suffer to be created by, through, or under Lessee any lien, encumbrance or charge upon the Leased Premises or Lessee's interest in this Lease. Lessee shall satisfy or cause to be discharged, or will make adequate provision to satisfy and discharge, within sixty (60) days after the same occurs, all such claims and demands for labor, materials, supplies or other items which, if not satisfied, might by law become a lien upon the Leased Premises or any part thereof. If any such lien is filed or asserted against Lessee or the Leased Premises by reason of work, labor, services or materials supplied or claimed to have been supplied on or to Lessee or the Leased Premises at the request or with the permission of Lessee or of anyone claiming under it, Lessee shall, within sixty (60) days after it receives notice of the filing thereof or the assertion thereof against the Leased Premises, cause the same to be discharged of record, or effectively prevent the enforcement or foreclosure thereof, by contest, payment, deposit, bond, order of court or otherwise. Section 5.4. Maintenance and Warranty Contracts. Lessor covenants and agrees that without the prior consent of Lessee, which consent shall not be unreasonably withheld, conditioned or delayed, Lessor will not (i) voluntarily, involuntarily, by operation of law or otherwise, sell, assign or transfer any of the maintenance and warranty contracts to any person other than Lessee; (ii) terminate any of the maintenance and warranty contracts; (iii) waive or release any of the respective obligations of any person under any of the maintenance and warranty contracts; or (iv) in any way voluntarily modify or amend any of the maintenance and warranty contracts. Further, Lessor agrees that Lessee is a third -party beneficiary of the maintenance and warranty contracts and hereby conveys, transfers and assigns to Lessee the nonexclusive right to enforce any and all of the respective obligations of any person under the maintenance and warranty contracts, including, but not limited to, any and all representations and warranties thereunder. Lessor and Lessee shall cooperate with each other in prosecuting any and all warranty and similar claims under any and all contracts or other agreements with third parties for the design, construction, supply, alteration, improvement, maintenance or renewal of the Leased Premises (each a "Warranty Claim"). All recoveries from any such Warranty Claims shall be applied, first, to the cost of collection, second, on a proportional basis to Lessor and Lessee to (x) reimburse Lessee for the cost and expenses incurred in order to repair, restore, renew or replace any part of the Leased Premises as to which such Warranty Claim relates and which have not been paid out of the Capital Repair Work Account or the Capital Improvement Program Account and (y) to reimburse Lessor for amounts paid to Lessee as Lessor's Expenses relating to such Warranty Claim. Section 5.5. Surrender of Possession. Upon the termination of this Lease, Lessee shall surrender the Leased Premises (including all improvements thereon) to Lessor in a condition which would have been in compliance with the maintenance requirements of Section 5.1 of this Lease had the Lease not terminated, reasonable wear and tear, and, damage by casualty and condemnation, excepted. Section 5.6. Operation. Lessee agrees to operate and maintain the Leased Premises throughout the Term in a condition necessary to conduct the permitted uses described in Section 3.5. Except as provided below, Lessee may not assign any rights, duties or obligations to operate and maintain the Leased Premises throughout the Term to any party, other than its corporate affiliates, without the prior written consent of Lessor. Lessor acknowledges that the foregoing does not prohibit Lessee from contracting with third parties to provide services such as concessions, security, janitorial, and similar services. Section 5.7. Right of Lessee to Revenues. Lessee shall be entitled to, and is hereby granted the exclusive right to, contract for, collect, receive and retain all gross income and revenues and other consideration of whatever kind or nature realized by, from or in connection with the Leased Premises, including, without limitation, all gross revenues, royalties, license fees, concession fees and income and receipts of any nature, including, without limitation, those arising from (a) all advertising rights, (b) all broadcast rights, (c) parking, (d) promotion of events at the Leased Premises, (e) the sale of food, beverages, merchandise, programs and other goods and wares of any nature whatsoever at the Leased Premises, (f) all naming rights, and (g) all telecommunications rights. 11 Lessee shall have the right, without the prior consent of Lessor, to sell or grant rights to purchase future tickets for reserved seats, club seats and luxury suites, including personal seat licenses (collectively, "Seat Rights"). All Seat Rights shall be subject and subordinate to the provisions of this Lease and shall not survive the termination or expiration of this Lease. The Lessee shall have no responsibility or obligation to sell Seat Rights and the Lessor shall not have any liability or responsibility to assure the sale of Seat Rights. Lessee shall be entitled to, and is hereby granted the exclusive right to, collect, receive and retain all gross income and revenues and other consideration of whatever kind or nature (but excluding any Targeted Taxes) realized by, from or in connection with the sale or other distribution of Seat Rights, tickets or passes (including general admission) for any seats in the Leased Premises. Section 5.8. Naming and Other Rights. Lessee shall have the full right to provide a name or names for the Convention Center during the Term of this Lease. It is provided, however, that Lessee shall display no reference to any county or to any city other than the City in any signage, advertising, and other identification monuments or visible media containing the name used by or identifying the Convention Center facility on the Leased Premises. Any advertising, documents or media information prepared by or within the control of Lessee describing any event at the Convention Center shall identify the City as the location of the Convention Center. Without limiting the foregoing, Lessee shall have the exclusive right to contract with any person with respect to use and enjoyment of such name for the Convention Center and the exclusive right to enter into agreements with others whereby such others may display names, logos, trademarks, advertisements, slogans, emblems, brand names, and the like in or about the Leased Premises. Lessee reserves the right to change the name of the Convention Center from time to time. Lessee also retains exclusive rights of control over, and the right to grant to others, the rights to broadcasts to and from the Leased Premises, regardless of the medium used (e.g., television, radio, interne, satellite) and all revenues therefrom. Section 5.9. Advertising Content. Lessee agrees that no advertising shall be allowed on the Leased Premises for sexually oriented businesses or for political candidates or issues. Section 5.10. Notification of Events of Default. Lessee covenants and agrees that it will promptly notify Lessor of the occurrence of an Event of Default specifying the details of such event or Event of Default and the action that Lessee proposes to take with respect thereto. Section 5.11. Right of First Refusal. During and for the Term of this Lease and any extension thereof, Lessor and Lessee agree that Lessee shall have the right of first refusal with respect to the lease, management, and/or operation of any future facility owned by Lessor which may serve as a competing venue with the Convention Center. The foregoing right shall only apply to facilities which are intended for conventions, outdoor concerts, and/or professional sports teams. Section 5.12. Capital Repair Account; Capital Improvement Program Account; Priority of Application of Hotel and Motel Occupancy Taxes. (a) The Lessor shall (i) establish and maintain an account for the sole purpose of serving as a segregated source of funds to be used to pay for Capital Repair Work (the "Capital Repair Work Account"), and (ii) establish and maintain an account for the sole purpose of serving as a segregated asset renewal and replacement fund for upgrades of and to the components of the Leased Premises (the "Capital Improvement Program Account") and (iii) hold and disburse the funds required to be deposited in the Capital Repair Work Account and the Capital Improvement Program Account, all in accordance with this Section 5.12. The Capital Repair Work Account shall be available to Lessor to pay the Lessor's Expenses, and shall be available to pay the costs of performing the Capital Repair Work. The Capital Improvement Program Account shall be available to pay the costs of upgrading from time to time components of the Leased Premises (the "Capital Improvement Work"). Funds deposited into either of such accounts shall be held by Lessor for the benefit of the Convention Center. 12 (b) Both the Capital Repair Work Account and the Capital Improvements Program Account shall be funded with proceeds of hotel and motel occupancy taxes actually collected by Lessor, after payment of certain other obligations and the funding of certain obligations of Lessor as more fully described below. Hotel and motel occupancy taxes actually collected by Lessor during the Term shall be utilized by Lessor in the following order of priority and amount: 1. To establish and fund debt service requirements on the debt created under the Debt Plan; and 2. To establish a working capital fund in the amount of $125,000. The proceeds of the working capital fund may be used to pay costs of Capital Repair Work in the event there are insufficient funds in the Capital Repair Work Account to pay for needed Capital Repair Work. At such time as the working capital fund has a balance of $125,000, no further deposits need to be made thereto unless and until proceeds are disbursed therefrom to pay for Capital Repair Work in which case subsequent deposits shall be made to the working capital fund to replace the amounts so used to pay for Capital Repair Work; and 3. To fund the costs of tourism related events sponsored or conducted by Lessor in the amount of, on an annual basis, $260,000 (said $260,000 shall be adjusted upward each year by 3% on a compounded basis); and 4. To establish and fund, on an annual basis commencing on the Commencement Date, the Capital Repair Work Account in the amount of $250,000 (at such time as the Capital Repair Work Account has a balance of $250,000, no further deposits need to be made thereto unless and until proceeds are disbursed therefrom in which case subsequent deposits shall be made so as to restore such balance to $250,000); and 5. To establish and fund, commencing on the first day of the sixth (6th) year following the Commencement Date, the Capital Improvement Program Account with annual deposits of $100,000, such deposits to continue until the balance in such account reaches $500,000 at which time no further deposits thereto shall be made unless and until proceeds are disbursed therefrom in which case subsequent deposits shall be made so as to restore such balance to $500,000. (c) Lessee agrees to provide Lessor, not less often than annually during the Term, a proposed schedule for and budget of proposed Capital Improvement Work and Capital Repair Work for the upcoming year, or portion thereof, which schedule and budget shall be subject to the approval of Lessor, such approval not to be unreasonably withheld, conditioned or delayed. In the event Lessor has not disapproved the same in a writing to Lessee to such effect (which writing shall set forth with specificity the reasons for such disapproval) within thirty (30) days after Lessee's submission of the same, the proposed Capital Improvement Work and Capital Repair Work shall be deemed approved and Lessee shall have the right to require Lessor to cause such work to be performed and the funds in the Capital Improvement Work Account and Capital Repair Work Account, as the case may be, shall be available to Lessor to pay the budgeted costs for such work in accordance with the contracts for such work approved by Lessor and Lessee and executed by Lessor. Section 5.13. Lessee to Provide Scoreboard. Lessee shall provide and install, at its cost and expense, a double-A minor league quality scoreboard at the Convention Center. At the expiration of this Lease, the scoreboard shall become the property of Lessor. Section 5.14. Lessor's Right of Entry and Inspection. Upon twenty-four (24) hours notice to Lessee, Lessor shall have the unrestricted right to enter upon the Leased Premises, for the purpose of inspecting same. 13 Section 5.15. Lessor's Use of Leased Premises. Lessor shall be entitled to the use of the Leased Premises up to twenty (20) dates per year for the conduct of City sponsored programs. Lessor shall be responsible for all costs of operating the Convention Center for such events and for all damage caused thereby and all janitorial, security, traffic control, and other services needed as a consequence thereof. These dates shall be determined in advance through negotiation of Lessee and Lessor. It is agreed that home baseball games will be given priority if there is a conflict in dates (in no event shall Lessor have the right to use the same on any day during which a baseball game is scheduled). Additionally, Lessor shall be entitled to use the meeting facilities in the Convention Center at its sole cost and expense on an as available basis. Section 5.16. Sales Taxes; Location of Ticket Office. Lessor and Lessee intend for all municipal sales taxes arising from ticket sales for taxable amusement services at the Convention Center are to be allocated to the City, as specifically required by 34 Texas Administrative Code § § 3.298(a)(1)(C)(iv) and 3.3740; provided, however, nothing herein shall be deemed to prohibit or restrict Lessee for effecting sales of tickets through offices or services which are not located in the City. Should Lessee do so, Lessee shall in good faith attempt to do so in a manner which permits the City to collect the sales taxes generated therefrom. In all events, all telephone solicitations and sales shall be made in a manner which permits the City to collect the sales taxes generated therefrom. Section 5.17. Obligation to Provide Professional Baseball Team. Lessee agrees that during the Term of the Lease that it will ensure that a professional baseball team uses the Leased Premises for all of its home games. The team will be either a double-A or triple-A team (or a reasonable equivalent thereof sanctioned by the Sanctioning Association). All home games of the team during the Term shall be played at the Leased Premises. If Lessee shall lose or relinquish its baseball franchise, league affiliation, or player development contract, the Lessee shall continue to be obligated to field a team sanctioned by a Sanctioning Association at the Leased Premises. Failure to provide said team will be considered as an event of default pursuant to Section 9.10). Section 5.18. Concession Improvements; Access. Lessee shall cause the Concession Improvements to be constructed at Lessee's sole cost and expense. Lessor agrees that Lessee and its agents, contractors, sublessees, licensees, and concessionaires shall have the right of access, for themselves and their authorized representatives, to the Leased Premises, without charges or fees or the commencement of rent hereunder, and at normal construction hours during the construction period, for the purposes of determining compliance with this Master Agreement, construction and installation of any Concession Improvements, construction and installation of any interior tenant finish work, use of its offices for ticket sales and promotions and other normal and customary business, and equipping locker room and related facilities for Lessee. ARTICLE VI INSURANCE AND CONDEMNATION Section 6.1. Lessee's Insurance. Commencing on the Commencement Date, Lessee covenants that it shall maintain in effect at all times during the full Term of this Lease, insurance coverages with limits not less than those set forth below with insurers licensed to do business in the State of Texas and acceptable to Lessor and under forms of policies satisfactory to Lessor. Lessee shall maintain such insurance coverages at its sole cost and expense. Lessor shall be under no obligation to maintain any such insurance coverage should Lessee be found to be in default under this Article VI. None of the requirements contained herein as to types, limits or Lessor's approval of insurance coverage to be maintained by Lessee are intended to and none shall in any manner limit, qualify or quantify the liabilities and obligations assumed by Lessee under this Lease or otherwise provided by law. Section 6.2. Workers' Compensation Insurance. Commencing on the Commencement Date, Lessee shall provide Workers' Compensation insurance in the limits required by State statute. 14 Section 6.3. Employers' Liability Insurance. Commencing on the Commencement Date, Lessee shall provide Employers' Liability insurance in minimum coverage amounts of $100,000. This policy shall include a waiver of subrogation in favor of the Lessor. Section 6.4. Commercial General Liability: Bodily Injury/Property Damage. Commencing on the Commencement Date Lessee shall provide Commercial General Liability: Bodily Injury/Property Damage insurance coverage in the amount of $1,000,000 for each occurrence or equivalent; subject to a $2,000,000 aggregate. Such commercial general liability policy shall be on an occurrence form reasonably acceptable to Lessor, endorsed to include the Lessor as an additional insured, contain cross -liability and severability of interest endorsements, state that this insurance is primary insurance as regards any other insurance carried by Lessor, and shall include the following coverages: (a) Premises/Operations; (b) Independent Contractors; (c) Broad Form Contractual Liability specifically in support of, but not limited to, the Indemnification section of this Lease; and (d) Personal Injury Liability with the employee and contractual exclusions removed. Section 6.5. Comprehensive Automobile Liability. Commencing on the Commencement Date Lessee shall provide Comprehensive Automobile Liability insurance for bodily injury and property damage in the amount of $1,000,000 combined single limit of liability. This policy shall be on a standard form written to cover all owned, hired and non -owned automobiles. Section 6.6. Garagekeeper's Liability. Commencing on the Commencement Date Lessee shall provide Garagekeeper's insurance for physical damage to parked vehicles in the amount of $100,000 combined single limit for each occurrence. This policy shall be endorsed to include Lessor as an additional insured and include a waiver of subrogation in favor of Lessor. Section 6.7. Umbrella Excess Liability Insurance. Lessee shall provide Umbrella Excess Liability Insurance; Bodily Injury /Property Damage (Occurrence Basis) in the amount of $5,000,000 per occurrence and aggregate. This policy shall be written on a following form umbrella excess basis above for the coverages described in Sections 6.2. 6.3. 6.4. 6.5 and 6.6 above and shall be endorsed to include the Lessor as additional insured. Section 6.8. Lessor's Property. Lessor shall, at its expense, procure and keep in force, at all times during the term of this Lease with an insurer or insurers licensed to do business in the State a hazard and casualty insurance policy on the Leased Premises insuring it against loss and damage by fire, collapse, aircraft and all other perils which may be insured against under multi -peril policies available on commercially reasonable terms. Such policy shall be in an amount of not less than one hundred percent (100%) of the insurable replacement cost of the Leased Premises and all improvements therein (excluding, however, all of Lessee's personal property). Section 6.9. Evidence of Insurance. Evidence of the insurance coverage required under this Article VI, represented by Certificates of Insurance issued by the insurance carrier, must be furnished to the requesting party prior to the commencement of the Term of this Lease. Certificates of Insurance shall specify the additional insured status required above as well as the waivers of subrogation. Such Certificates of Insurance shall state that the parties will be notified in writing thirty (30) days prior to cancellation, material change or non -renewal of insurance. Each party shall provide to the other a certified copy of any and all applicable insurance policies upon request. Section 6.10. Insurance Requirements for Lessee's Contractors and Subcontractors. (a) General Requirements. Subject to Lessor's right to waive such requirements for a contractor or subcontractor at Lessor's sole discretion, insurance similar to that required of Lessee with limits reasonably 15 acceptable to Lessor shall be provided by or on behalf of all contractors and their subcontractors to cover their operations performed for Lessee. The Commercial General Liability policy outlined in Section 6.4 will be extended to include Completed Operations coverage for any contractor doing construction work on the Leased Premises. Lessee shall consult with Lessor with respect to such matters to determine if Lessor desires to waive such requirements for a contractor or subcontractor. Lessee shall maintain Certificates of Insurance from all contractors and their subcontractors enumerating, among other things, the waivers in favor of, and insured status of, Lessor as required herein, and Lessee shall provide to Lessor a copy of each Certificate of Insurance from each contractor and subcontractor if requested by Lessor. (b) Subcontractors. The term "subcontractor(s)" for the purposes of this Lease shall include subcontractors, consultants, or sub -operators of any tier. Section 6.11. Release and Waiver. TO THE EXTENT PERMITTED BY LAW, AND WITHOUT AFFECTING THE INSURANCE COVERAGE REQUIRED TO BE MAINTAINED HEREUNDER, THE LESSOR AND LESSEE EACH WAIVE ALL RIGHTS OF RECOVERY, CLAIM, ACTION OR CAUSE OF ACTION AGAINST THE OTHER FOR ANY (A) DAMAGES FOR INJURY OR DEATH OF PERSONS, (B) DAMAGE TO PROPERTY, OR (c) CLAIMS ARISING BY REASON OF ANY OF THE FOREGOING, TO THE EXTENT THAT SUCH DAMAGES AND/OR CLAIMS (i) ARE COVERED (AND ONLY TO THE EXTENT OF SUCH COVERAGE WITHOUT REGARD TO DEDUCTIBLES) BY INSURANCE ACTUALLY CARRIED BY THE PARTY HOLDING OR ASSERTING SUCH RIGHT OF RECOVERY, CLAIM, ACTION OR CAUSE OF ACTION OR (II) WOULD BE INSURED AGAINST UNDER THE TERMS OF ANY INSURANCE REQUIRED TO BE CARRIED UNDER THIS LEASE BY THE PARTY HOLDING OR ASSERTING SUCH RIGHT OF RECOVERY, CLAIM, ACTION OR CAUSE OF ACTION. THIS PROVISION IS INTENDED TO (i) RESTRICT EACH PARTY (IF AND TO THE EXTENT PERMITTED BY LAW) TO RECOVERY AGAINST INSURANCE CARRIERS TO THE EXTENT OF SUCH COVERAGE AND TO WAIVE (TO THE EXTENT OF SUCH COVERAGE), FOR THE BENEFIT OF EACH PARTY, RIGHTS AND/OR CLAIMS WHICH MIGHT GIVE RISE TO A RIGHT OF SUBROGATION IN ANY INSURANCE CARRIER AND (II) GIVE EACH PARTY THE BENEFIT OF THE FOREGOING NOTWITHSTANDING ANY FAILURE BY THE OTHER PARTY TO MAINTAIN THE INSURANCE REQUIRED UNDER THIS LEASE OR THE MASTER AGREEMENT. THE PROVISIONS OF THIS SECTION 6.11 ARE NOT INTENDED TO LIMIT THE CLAIMS OF THE LESSOR OR LESSEE TO THE FACE AMOUNT OR COVERAGE OF THE INSURANCE POLICIES HEREIN PROVIDED FOR OR TO EVIDENCE THE WAIVER BY EITHER PARTY OF ANY CLAIM FOR DAMAGES IN EXCESS OF THE FACE AMOUNT OR COVERAGE OF ANY OF SUCH INSURANCE POLICIES. NEITHER THE ISSUANCE OF ANY INSURANCE POLICY REQUIRED UNDER, OR THE MINIMUM LIMITS SPECIFIED IN, SECTION 6.11 WITH RESPECT TO LESSEE'S OR LESSOR'S INSURANCE COVERAGE SHALL BE DEEMED TO LIMIT OR RESTRICT IN ANY WAY LESSEE'S OR LESSOR'S LIABILITY ARISING UNDER OR OUT OF THIS LEASE. Lessee shall cause each of its contractors entering upon the Leased Premises for the purpose of conducting work thereon or therein to similarly waive its rights of recovery and subrogation against the Lessor. Section 6.12. Insurers and Policies. Each insurance policy required by Article VI shall be issued by an insurer (or insurers) which is financially responsible, of recognized standing and authorized to issue such policy of insurance in the State of Texas; (b) shall be in such form and with such provisions as are reasonably acceptable to Lessor and Lessee for the type of insurance involved; and (c) shall prohibit cancellation or substantial reduction of coverage by the insurer without at least thirty (30) days prior written notice to the parties. Evidence of these coverages represented by certificates of insurance issued by the insurance carrier must be furnished prior to commencement of the Term and must be kept current throughout the Term. None of the requirements contained herein as to types, limits or approval of insurance coverage are intended to and shall not in any manner limit, 16 qualify, or quantify the liabilities and obligations assumed by the parties under this Lease or otherwise provided by law. ARTICLE VII INDEMNIFICATION Section 7.1. Indemnification. (a) Lessee shall, except as provided in the following paragraph of this Section 7.1(a) defend, protect, indemnify and hold Lessor and its officers, directors, employees, and agents harmless from and against any and all liabilities, damages, suits, claims and judgments of any nature (including, without limitation, reasonable attorneys' fees and expenses), arising from or in connection with any injury to or death of a Person or any damage to property resulting from, arising out of or in connection with (i) the use or occupancy of the Leased Premises on or after the Commencement Date or (ii) the negligence or willful act of Lessee or Lessee's contractors, employees, officers, directors, agents or invitees. Notwithstanding the provisions of the preceding paragraph, Lessee shall not be liable for any liabilities, damages, suits, claims and judgments of any nature (including, without limitation, reasonable attorneys' fees and expenses) arising from or in connection with: (1) Any injury to or death of a person or any damage to property (including loss of use) to the extent of the negligence or willful act of Lessor, its employees, officers, directors, contractors, agents or invitees; (2) Lessor's violation of any provisions of this Lease or any applicable Governmental Authority or deed restriction or insurance policy, now or hereafter in effect and applicable to Lessor; (3) The existence of any Hazardous Materials in, on or under the Leased Premises prior to the Commencement Date; or (4) Any environmental event caused by Lessor or any of its employees, officers, directors, contractors, agents or invitees. (b) To the maximum extent permitted by applicable law, Lessor shall, except as provided in the following paragraph of this Section 7.1(b), defend, protect, indemnify and hold Lessee and its officers, directors, employees, and agents harmless from and against any and all liabilities, damages, suits, claims and judgments of any nature (including, without limitation, reasonable attorneys' fees and expenses), arising from or in connection with any injury to or death of a person or any damage to property resulting from, arising out of or in connection with (i) the use or occupancy of the Leased Premises prior to the Commencement Date or (ii) the negligence or willful act of Lessor or Lessor's contractors, employees, officers, directors, agents or invitees. Notwithstanding the provisions of the preceding paragraph, Lessor shall not be liable for any liabilities, damages, suits, claims and judgments of any nature (including, without limitation, reasonable attorneys' fees and expenses) arising from or in connection with: (1) Any injury to or death of a person or any damage to property (including loss of use) to the extent of the negligence or willful act of Lessee, its employees, officers, directors, contractors, agents or invitees; 17 (2) Lessee's violation of any provisions of this Lease or any applicable Governmental Rules or deed restriction or insurance policy, now or hereafter in effect and applicable to Lessee; (3) Any Hazardous Materials that are introduced to the Leased Premises after the Commencement Date by Lessee, or any of its employees, officers, directors, contractors, or agents; or (4) Any environmental event caused by Lessee or any of its employees, officers, directors, contractors, or agents. The provisions of this Section 7.1 are solely for the benefit of Lessor and Lessee and are not intended to create or grant any rights, contractual or otherwise, to any other person. Section 7.2. Indemnification Procedures. In case any claim shall be brought or, to the knowledge of any indemnitee, threatened against any indemnitee in respect of which indemnity may be sought, such indemnitee shall promptly notify the other in writing; provided, however, that any failure so to notify shall not relieve the indemnitor of its obligations under Section 7.1 unless (i) such failure so to notify precludes investigation and defense of such claims as a matter of law, and (ii) the indemnitor does not otherwise have knowledge, either actual or constructive, of such claim. The indemnitor shall have the right (and obligation, subject to the terms below) to assume the investigation and defense of all claims, including the employment of counsel and the payment of all expenses. Each indemnitee shall have the right to employ separate counsel in any such action and participate in the investigation and defense thereof, but the fees and expenses of such counsel shall be paid by such indemnitee unless (i) the employment of such counsel has been specifically authorized by indemnitor, in writing, (ii) indemnitor has failed after receipt of notice of such claim to assume the defense and to employ counsel, or (iii) the named parties to any such action (including any impleaded parties) include both parties, and the indemnitee, after consultation with its counsel, reasonably believes that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnitor (in which case, if such indemnitee notifies the indemnitor in writing that it elects to employ separate counsel at indemnitee's expense, indemnitor shall not have the right to assume the defense of the action on behalf of such indemnitee; provide, however, that indemnitor shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegation or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for the indemnitee, which firm shall be designated in writing by the indemnitees). Each indemnitee shall cooperate with the indemnitor in the defense of any action or claim. The indemnitor shall not be liable for any settlement of any action or claim without its consent, but if any such action or claim is settled with the consent of the indemnitor or there be final judgment or agreement for the plaintiff in any such action or with respect to any such claim, the indemnitor shall indemnify and hold harmless the indemnitees from and against any damages by reason of such settlement or judgment. Section 7.3. Survival Right to Enforce. The provisions of this Article VII shall survive the termination of this Lease. In the event of failure by an indemnitor to observe the covenants, conditions and agreements contained in this Article VII, any indemnitee may take any action at law or in equity to collect amounts then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the indemnitor under this Article VII. Except as otherwise provided in Article VIII below, the obligations of the parties under this Article VII shall not be affected by any assignment or other transfer of its rights, titles or interests under this Lease and will continue to inure to the benefit of the indemnitees after any such transfer. 18 ARTICLE VIII ASSIGNMENTS; LEASEHOLD MORTGAGES; LEASEBACK Section 8.1. Assignment and Subleasing. (a) Except as provided below, Lessee shall not assign or sublet its interest in this Lease or any of its rights or obligations hereunder without the prior written consent of Lessor, which consent may be granted or withheld if in Lessor's sole judgment such assignment or subletting might materially and adversely affect the financial condition or operations of the Convention Center. Notwithstanding the foregoing (but subject to the provisions of Section 8.1(b) below) Lessee shall have the right upon thirty (30) days prior written notice to Lessor to assign its interest in this Lease to (i) any entity in which Nolan Ryan, Reid Ryan, or Don Sanders, singularly or in the aggregate and whether directly or indirectly, have at least a 51% ownership interest, (ii) in connection with a merger or consolidation of Lessee with another so long as, following such transaction, the successor entity's financial creditworthiness is equal to or greater than that of Lessee as of the Commencement Date, or (iii) in connection with a sale by Lessee of all or substantially all of its assets, in a single transaction or a series of transactions, and where such purchaser's net worth (determined in accordance with generally accepted accounting principles) is, following such purchase, equal to or greater than $7,500,000. (b) Prior to December 31, 2007, Nolan Ryan shall not assign, sell, transfer, or convey any of his interest in the Lessee without the prior written consent of Lessor, which consent may be granted or withheld in Lessor's sole judgment; provided however that the consent of the City shall not be required for Nolan Ryan to assign, sell, transfer, or convey any of his interest to Don Sanders, Reid Ryan, or any trust created by Nolan Ryan for his benefit or the benefit of any of his family members. Section 8.2. Notice of Intent. If Lessee shall, at any time during the Term, desire to assign this Lease or sublet all or part of the Leased Premises to a party other than as permitted under Section 8.1, Lessee shall give notice thereof to Lessor, which notice shall be accompanied by: (a) a conformed or photostatic copy of the proposed assignment or sublease; (b) a statement setting forth, in reasonable detail, the identity of the proposed assignee or sublessee and the nature of its business; (c) current financial information with respect to the proposed assignee or sublessee, including its most recent financial statement (which may taken into account the effects of the transfer); and (d) banking and business references of the proposed assignee or sublessee. Section 8.3. Conditions Upon Lessor's Consent to Assignment. In the event that Lessee complies with all of the provisions of Section 8.2 and provided no Event of Default then exists, Lessor's consent to a proposed assignment shall not be withheld or delayed, provided and upon condition that: (a) The proposed assignee or sublessee is a reputable person or entity of good standing in the business community and with financial worth (after giving effect to the transfer) not less than that of Lessee as of the date hereof, and Lessor has been furnished with reasonable proof thereof; (b) The proposed assignment shall be in a form reasonably satisfactory to Lessor and shall comply with the provisions of this Lease; and (c) Lessee shall reimburse Lessor on demand for any costs and overhead that may be incurred and substantiated by Lessor in connection with said assignment or sublease, including the costs of making investigations as to the acceptability of the proposed transferee and reasonable legal costs incurred in connection with the granting or withholding of any requested consent. 19 If the foregoing conditions to an assignment are satisfied and the assignment is made, then upon such assignment the named Lessee herein shall be released herefrom with respect to obligations, covenants, and agreements to be observed and performed by the Lessee under this Lease after such date. Section 8.4. Subleases and Concession Arrangements. Notwithstanding the foregoing, Lessee shall have the right to enter into such subleases of portions of the Leased Premises and concession arrangements as Lessee may desire, all without consent from Lessor so long as each such sublease or concession arrangement provides that it is expressly subject and subordinate to this Lease and the matters to which this Lease is or shall be subordinate. Section 8.5. Leasehold Mortgages. Lessee shall have no right to encumber by mortgage, deed of trust, security agreement or other instrument in the nature thereof (collectively, a "Mortgage") or otherwise to encumber or affect in any way the titles, interests, or estates of Lessor in or to the Land or the Leased Premises or, unless consented to by Lessor, Lessee's right to use and occupy the Leased Premises, the leasehold estate created hereby, or any right, title and interest in and to any and all improvements constructed on the Leased Premises; provided, that, in all cases Lessee shall have the right to assign, mortgage, pledge, hypothecate or assign Lessee's receivables, accounts, or revenue streams from, and equipment and fixtures in, the Leased Premises, all without the need for obtaining Lessor's consent. ARTICLE IX DEFAULT Section 9.1. Events of Default. The occurrence of any of the following shall constitute an "Event of Default" by Lessee hereunder: (a) The failure of Lessee to pay when due any installment of Rentals pursuant to Section 3.2 hereof, provided such failure continues for more than five business days after Lessee receives written notice from Lessor that such installment is due. (b) The breach by Lessee of any other covenant, condition, or agreement required to be performed or observed hereunder or under any of the Agreements, if such breach has not been cured within thirty (30) days of delivery of notice of such breach to Lessee by Lessor, unless such breach, by its nature, cannot be cured within such thirty (30) day period, in which case so long as Lessee is diligently proceeding to cure such breach and is making reasonable progress in effectuating a cure, it shall not be deemed to be an Event of Default. (c) The occurrence of an Act of Bankruptcy, provided that with respect to the filing of an involuntary petition in bankruptcy or other commencement of a bankruptcy or similar proceeding against Lessee, such petition or proceeding shall remain undismissed for ninety (90) days. The occurrence of any of the following shall constitute a "Lessor Event of Default": (a) The failure of Lessor to pay when due any money owed to Lessee by Lessor hereunder provided such failure continues for more than five (5) business days after Lessor receives written notice thereof; or (b) The breach by Lessor of any other covenant, condition, or agreement required to be performed or observed hereunder or under any of the Agreements, if such breach has not been cured within thirty (30) days of delivery of notice of such breach to Lessor by Lessee, unless such breach, by its nature, cannot be cured within such thirty (30) day period, in which case so long as Lessor is diligently 20 proceeding to cure such breach and is making reasonable progress in effectuating a cure, it shall not be deemed to be an Event of Default. Section 9.2. Remedies of the Lessor on Default. (a) If any Event of Default shall have occurred and be continuing, Lessor may, in its own name and for its own account, without impairing the ability of Lessor to pursue any other remedy provided for in this Lease or now or hereafter existing at law or in equity or by statute, institute such action against Lessee as may appear necessary or desirable to collect such rentals and any other amounts then due under this Lease, or to enforce performance and observance of such covenant, condition or obligation of Lessee hereunder, or to recover damages for Lessee's non-payment, non-performance or non -observance of the same. (b) Upon the occurrence of any Event of Default and during the continuance thereof, Lessor may (i) by giving Lessee written notice upon the occurrence of any Event of Default described in Section 9.1(a) or (b) and without giving Lessee notice upon the occurrence of an Event of Default described in Section 9.1(c), declare this Lease to be terminated, (ii) exclude Lessee from possession of the Leased Premises and reenter the same; and (iii) take whatever action at law or in equity as may appear necessary or desirable to collect the Rentals and any other amounts then due, to enforce performance and observance of any covenant, condition or obligation of Lessee hereunder, or to recover damages for Lessee's non- payment, non-performance or non -observance of the same; provided that Lessor shall be required to mitigate its damages to the extent required by law and Section 9.3(b) hereof. (c) Lessee shall pay all of Lessor's reasonable fees and expenses, including reasonable attorneys' fees, in enforcing any covenant to be observed by Lessee or pursuing any remedy upon an Event of Default. Section 9.3. The Lessee To Remain Liable for Payments; Reletting. (a) Notwithstanding the exercise by Lessor of its remedies pursuant to Section 9.2 hereof, Lessee shall continue to be liable for the payment of all Rentals payable under Section 3.3 hereof and other amounts, if any, payable under this Lease and Lessee shall make such payments at the same times and in the same manner as provided in this Lease. (b) In the event Lessor elects to exclude Lessee from possession of the Leased Premises and re-enter same, then Lessor shall use reasonable efforts to relet the Leased Premises for the maximum rental it may reasonably obtain, provided, however, that Lessor shall have no obligation to relet the Leased Premises to any person who will not use the Leased Premises for the purposes set forth in Section 3.5 hereof. Any such rentals received prior to the stated termination date of this Lease shall be applied first to the payment of expenses incurred by Lessor in connection with such reletting and second, to the Rentals due hereunder. Section 9.4. Remedy on Lessor's Default. Upon the occurrence of a Lessor Event of Default, Lessee may elect to (i) terminate this Lease and (ii) exercise any and all other remedies available at law or in equity. Section 9.5. No Remedy Exclusive. No remedy herein conferred upon either party is intended to be exclusive of any other available remedy or remedies, and each such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default granted under this Lease shall impair any right or power or shall be construed to be a waiver thereof, and any such right or power may be exercised from 21 time to time and as often as may be deemed expedient, and the exercise of any one right or remedy shall not impair the right to any or all other remedies under this Lease. NOTWITHSTANDING ANY CONTRARY PROVISIONS HEREOF IN NO EVENT SHALL LESSOR OR LESSEE BE LIABLE UNDER ANY PROVISION OF THIS LEASE FOR LOST PROFITS, INCLUDING 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 THE SOLE OR CONCURRENT NEGLIGENCE OF LESSOR OR LESSEE OR ANY OF THEIR AFFILIATES OR RELATED PARTIES. WITHOUT LIMITING THE FOREGOING, THIS LIMITATION OF LIABILITY SHALL APPLY TO CLAIMS OF LESSOR OR LESSEE ARISING OUT OF THIRD PARTY CLAIMS AGAINST LESSOR OR LESSEE FOR ANY OF THE FOREGOING. Section 9.6. No Additional Waiver Implied By One Waiver; Consents to Waiver. The waiver of either party of any breach by the other party of any covenant, condition or obligation under this Lease shall not operate as a waiver of any subsequent breach of the same or a waiver of any breach of any other covenant, condition or obligation under this Lease, nor shall any forbearance by the non -defaulting party not breaching to seek a remedy for any breach by the other party be a waiver by such non -defaulting party not breaching any of its rights and remedies with respect to such breach or any subsequent breach of the same or with respect to any other breach. Section 9.7. Delay not a Waiver. No delay or omission in the exercise of any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or any acquiescence therein, and every power or remedy given by this Lease may be exercised from time to time and as often as may be deemed expedient. Either party may waive any default which in its opinion has been remedied before the entry of final judgment or decree in any suit, action or proceeding instituted by it under the provisions of this Lease or before the completion of the enforcement of any other remedies under this Lease. No such waiver shall extend to or affect any other existing or subsequent default or impair any rights or remedies consequent thereon. ARTICLE X DAMAGE AND CONDEMNATION Section 10.1. Damage and Destruction. (a) If the Leased Premises are destroyed (in whole or in part) or are damaged by fire or other casualty, Lessee shall promptly give written notice thereof to Lessor. All applicable insurance proceeds shall be applied by Lessor to repair, rebuild or restore the property damaged. Any remaining balance after payment for such repair, rebuilding or restoration shall be retained by Lessor. Lessee agrees to look solely to its insurance for the replacement and repair of the Removables and shall have all rights to all insurance with respect to, and shall be responsible for repair of, the concession areas to the extent, but no further, the same were equipped by Lessee or concessionaires contracting with Lessee. (b) Lessor will proceed promptly to repair, rebuild or restore the property damaged or destroyed to substantially the same condition as it existed prior to the event causing such damage or destruction, with such changes, alterations and modifications (including the substitution and addition of other property) as may be desired by Lessee and Lessor and which will not impair productive capacity or the character of the Leased Premises. If such damage results in an Untenantable Condition, all Rental shall abate during the period of repair and restoration. Notwithstanding the foregoing, in the event that (a) substantially all of the improvements shall be damaged or destroyed by casualty at any time during the final three (3) years of the Term or (b) any portion of the Leased Premises shall be damaged or destroyed by casualty at 22 any time during the Lease Term and the governmental rules then applicable to the Leased Premises do not permit the restoration of the Leased Premises so as to eliminate an Untenantable Condition, then Lessee may, at its option (exercised with reasonable promptness in the circumstances, but in all events within ninety (90) days after such damage or destruction), terminate this Lease by serving upon Lessor notice within such period setting forth Lessee's election to terminate this Lease as a result of such damage or destruction as of the end of the calendar month in which such notice is delivered to Lessor. Upon the service of such notice and the making of such payments within the foregoing time period, Lessor shall pay to Lessee the amount of the Unamortized Portion of the Lessee's Contribution (measured as of the date of termination) this Lease shall cease and terminate on the date specified in such notice with the same force and effect as of such date were the date originally fixed as the lease expiration date and Lessee shall have no further obligation hereunder. The term "Unamortized Portion of the Lessee's Contribution" means an amount equal to, as of the date of its determination, the product of "X" times the total number of days remaining in the scheduled 25 -year Term with "X" being determined as follows: "X" equals the sum obtained by subtracting from $5,825,000 the Applicable Amount. The term "Applicable Amount" shall be, as of the date of determination, the sum of the dollar amounts reflected in Column A for each period set forth opposite in Column B below which have expired prior to the date of determination plus a pro rated amount of the amount in Column A for the period in Column B below in which the date of determination falls: Column A Column 13 $500,000 1st year of the Term $400,000 2nd year of the Term $300,000 3rd year of the Term $200,000 4th year of the Term $100,000 5th year of the Term $ 15,000 For each year of the Term thereafter through and including the 20th year of the Term $ 5,000 For each of the 21st through the 25th year of the Term (As an example of the foregoing, if the date of determination is on the first day of the seventh month of the 3rd year of the Term, the Applicable Amount would be $1,050,000 [i.e., $500,000 plus $400,000 plus of $300,000). Section 10.2. Condemnation. (a) In the event that title to the Leased Premises or the leasehold estate of Lessee in the Leased Premises created by this Lease or any part of either thereof shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under Governmental Authority, or shall be conveyed in lieu thereof, this Lease shall terminate and Lessor shall pay to Lessee the Unamortized Portion of the Lessee's Contribution. Any condemnation award attributable to the temporary use or temporary condemnation of the Leased Premises or the leasehold estate shall be paid to Lessee. If only a part of the Leased Premises or leasehold estate is taken Lessor will cause any proceeds received by it from any award made in such eminent domain proceedings with respect to the Leased Premises, to be paid to the Lessee, to be applied in one or more of the following ways: (i) The restoration of the Leased Premises to substantially the same condition as existed prior to the exercise of the said power of eminent domain. 23 (ii) The acquisition, by construction or otherwise, by Lessee of other improvements suitable for Lessee's operations (which improvements shall be deemed a part of the Leased Premises and available for use and occupancy by Lessee without the payment of any rent other than the Rentals to the same extent as if such other improvements were specifically described herein and demised hereby). (iii) To Lessee if the condemned property is not essential to the normal operation of the Leased Premises. (b) Lessee shall notify the Lessor in writing as to which of the ways specified in this section Lessee intends to have the condemnation award applied. (c) Lessor shall cooperate fully with Lessee in the handling and conduct of any prospective or pending condemnation proceedings with respect to the Leased Premises or any part thereof and will, to the extent it may lawfully do so, permit Lessee to litigate in any such proceedings in the name and behalf of Lessor and for the purpose of seeking and obtaining a separate award for damage to the Removables, the value of Lessee's leasehold estate, and damage to Lessee's business. In no event will Lessor voluntarily settle, or consent to the settlement of, any prospective or pending condemnation proceeding with respect to the Leased Premises or any part thereof without the written consent of Lessee. Notwithstanding the foregoing, if as a result of any condemnation, an Untenantable Condition exists or if the damage caused thereby occurs during the last three (3) years of the Term, Lessee shall have the right and option to terminate this Lease by providing written notice to Lessor to such effect whereupon this Lease shall terminate as of the date set forth in such notice and Lessor shall pay to Lessee the Unamortized Portion of the Lessee's Contribution. The provisions of this Article X shall survive the termination of this Lease. ARTICLE XI MISCELLANEOUS Section 11.1. Amendments, Changes and Modification. No amendment, change, addition to or waiver of any of the provisions of this Lease shall be binding upon the parties hereto unless in writing signed by an Authorized Lessee Representative and the Mayor of Lessor. Section 11.2. Applicable Law. The Lease shall be governed exclusively by the provisions hereof and by the applicable laws of the State. Venue for any proceeding to enforce this Lease shall be in Williamson County, Texas. Section 11.3. Severability. If any provision of this Lease is held to be illegal, invalid, or unenforceable under present or future laws effective during the Term such provision shall be fully severable and this Lease shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof, and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Lease. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Lease a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and still be legal, valid, or enforceable. 24 Section 11.4. Notices and Demands. Any notices or other communications required or desired to be given to the other party hereto shall be given in writing and delivered by courier, overnight delivery service, facsimile transaction or through the U.S. postal service, postage prepaid and by certified mail, return receipt requested, at the following addresses: To Lessor: With copy to: To Lessee: City of Round Rock 221 E. Main St. Round Rock, Texas 78664 Attention: City Manager Fax: (512) 218-7097 City of Round Rock 221 E. Main St. Round Rock, Texas 78664 Attention: City Attorney Fax: (512) 255-8986 Ryan Sanders Ryan, Inc. P.O. Box 5309 Round Rock, Texas 78683 Attention: Reid Ryan Fax: (512) 255-1558 With copy to: Nolan Ryan 2900 South Gordon Alvin, Texas 77512 Fax: (281) 585-2238 Section 11.5. References. All references in this Lease to particular Articles or sections are references to Articles or sections of this Lease, unless otherwise indicated. Article and section headings are furnished for convenience only and do not constitute a part of this Lease. References in the singular number in this Lease shall be considered to include the plural, if and when appropriate, and vice versa. Any times referred to herein shall be deemed references to Round Rock, Texas, time. Any capitalized terms not specifically defined herein shall have the meanings ascribed to them in the Master Agreement. Section 11.6. Successors and Assigns. The terms and provisions of this Lease shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Section 11.7. Multiple Counterparts. This Lease may be executed in multiple counterparts, each of which shall be an original but all of which together shall constitute but one and the same instrument. Section 11.8. Recordation. Lessor and Lessee shall not record this Lease, but both parties agree, on request of the other, to execute a memorandum of lease in recordable form and complying with applicable laws of the State of Texas, which memorandum of lease may be recorded by the requesting party. Section 11.9. Attorneys' Fees. The prevailing party in any litigation related to this Lease shall be entitled to recover from the non -prevailing party or parties the reasonable attorneys' fees and costs incurred by such prevailing party in connection with such litigation. Section 11.10. Time is of the Essence. Time is expressly declared to be of the essence in this Lease. 25 Section 11.11. Landlord / Tenant Relationship. This Lease establishes a landlord/tenant relationship between the parties. It does not create any other type of relationship between the, such as one of agency, partnership, or joint venture. Section 11.12 Lessee's Remedial Work. Lessee shall be responsible for performing or causing to be performed, and for paying the cost of performing, any and all corrective or remedial actions required by applicable Governmental Authority to be performed with respect to any environmental event caused by Lessee's, or any of its agents, contractors, or subcontractors at any time ("Lessee's Remedial Work"). Lessee shall promptly inform Lessor and all applicable Governmental Authorities of any environmental event or Hazardous Materials discovered by Lessee (or any agent, contractor or subcontractor of Lessee) in, on or under the Leased Premises and promptly shall furnish to Lessor any and all reports and other information available to Lessee concerning the matter. Lessee shall thereafter promptly consult with Lessor as to the steps to be taken to investigate and, if necessary, remedy such matter. Lessee shall select an independent environmental consultant to evaluate the condition of the Leased Premises and materials thereon and therein, at Lessee's cost and expense. If it is determined pursuant to such evaluation that remediation of the same is required by this Section 11.12, then Lessee shall perform Lessee's Remedial Work at its own cost and expense and with due diligence. Section 11.13 Lessor's Remedial Work. Lessor shall be responsible for performing or causing to be performed, and for paying the cost of performing, any and all corrective or remedial actions required by applicable Governmental Authority to be performed with respect to (i) any environmental event caused by Lessor or any of its agents, contractors or subcontractors or (ii) any Hazardous Materials that were introduced to the Leased Premises on or before the Commencement Date (but excluding Hazardous Materials introduced by Lessee or its agents, contractors or subcontractors at any time) ("Lessor's Remedial Work"). Lessor shall promptly inform Lessee and all applicable Governmental Authorities of any such environmental event or any Hazardous Materials discovered by Lessor (or any agent, contractor or subcontractor of Lessor) in, on or under the Leased Premises and promptly shall furnish to Lessee any and all reports and other information available to Lessor concerning the matter. Lessor shall thereafter promptly consult with Lessee as to the steps to be taken to investigate and, if necessary, remedy such matter. Lessor shall select an independent environmental consultant to evaluate the condition of the Leased Premises and materials thereon and therein, at Lessor's cost and expense. If it is determined pursuant to such evaluation that remediation of the same is required by this Section 11.13, then Lessor shall perform, or cause to be performed, Lessor's Remedial Work at its own cost and expense and with due diligence. Section 11.14 Settlement By Mutual Agreement. In the event any dispute, controversy or claim between or among the parties arises under this Lease or is connected with or related in any way to this Lease or any right, duty or obligation arising herefrom or the relationship of the parties hereunder (a "Dispute or Controver y"), including, but not limited to, a Dispute or Controversy relating to the effectiveness, validity, interpretation, implementation, termination, cancellation or enforcement of this Lease, the parties shall first attempt in good faith to settle and resolve such Dispute or Controversy by mutual agreement in accordance with the terms of this Section 11.14. In the event a Dispute or Controversy arises, either Party shall have the right to notify the other that it has elected to implement the procedures set forth in this Section 11.14. Within fifteen (15) days after delivery of any such notice by one party to the other regarding a Dispute or Controversy, the Authorized Representative of the parties shall meet at a mutually agreed time and place to attempt, with diligence and good faith, to resolve and settle such Dispute or Controversy. Should a mutual resolution and settlement not be obtained at the meeting of the Authorized Representatives for such purpose or should no such meeting take place within such fifteen (15) day period, then either party may by notice to the other Party submit the Dispute or Controversy to mediation. Section 11.15 Covenants Running with the Estates in Land. The parties hereto covenant and agree that all of the conditions, covenants, agreements, rights, privileges, obligations, duties, specifications, and recitals contained in this Lease, except as otherwise expressly stated herein, shall be construed as covenants running with title to the Leased Premises, and the leasehold estate hereunder, respectively, which shall extend to, inure to the benefit of and bind, Lessor and Lessee, and their permitted successors and assigns, to the same extent as if such successors and 26 assigns were named as original parties to this Lease, such that this Lease shall always bind the owner and holder of any fee or leasehold interest in or to the Leased Premises, or any portion thereof, and shall bind predecessors thereof except as otherwise expressly provided herein. Section 11.16 Non -Appropriation. (a) Current Expenses. Except for the funds to be provided pursuant to Section 5.12, the obligations of the Lessor for payment and other monetary obligations under this Lease are each subject to an appropriation and, accordingly, (a) shall constitute a current expense of the Lessor in the fiscal year to which an obligation applies and (b) shall not constitute an indebtedness of the Lessor within the meaning of any applicable governmental rule. Nothing herein shall constitute a pledge by the Lessor of any funds, other than funds designated pursuant to Lawful appropriations from time to time to pay any money or satisfy any other monetary obligation under any provision of this Lease. (b) Result of Non -Appropriation. If a non -appropriation occurs in response to a request for a proposed Appropriation, the Lessor shall provide Lessee with written notice of such non -appropriation on or before the twentieth (20th) day after the non -appropriation. Any non -appropriation shall constitute a default hereunder by Lessor. Section 11.17. Conditions Precedent. Notwithstanding anything to the contrary contained herein, the following are conditions precedent to the effectiveness of this Lease and Lessor's and Lessee's obligations hereunder: (a) that the Lessee executes and delivers to Lessor that one certain Master Agreement Regarding Convention Center Complex Development in the form and substance acceptable to Lessor and Lessee; and (b) that the Debt Plan as defined in the Master Agreement be approved by Lessor and Lessee. Section 11.18. Conflicts. It is the intention of the parties that the Agreements comply with the provisions of Chapter 351 of the Tax Code, as amended, and in the event of a conflict between the applicable provisions of the Tax Code and the Agreements, Chapter 351 of the Tax Code shall govern. Additionally if any conflict exists between the Agreements and the Bond Documents, the Bond Documents shall govern. As used herein, the term "Bond Documents" means the Bond Ordinance, Trust Indenture and other documents and certificates approved by the Lessor in connection with the issuance of debt for the Convention Center. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 27 Executed this 20th day of January, 1999. LESSOR: CITY OF RO D ROCK, TEXAS By: Charles Culpepper, its LESSEE: RYAN SANDERS RYAN, INC. By: eid Ryan, i s Pr-.ident EXHIBIT "A" The Land will be approximately forty (40) acres out of that one certain 88.411 acre tract of land situated in the P.A. Holder Survey, Abstract Number 297 in Williamson County, Texas, being all of tracts Two, Three and Four conveyed to Arnold Telander by instrument recorded in Volume 2129, Page 744 of the Official Records of Williamson County, Texas. The boundaries of said forty (40) acre tract to be agreed upon by Lessee and Lessor and surveyed by a registered surveyor. Upon completion of said survey, a metes and bounds description of the forty (40) acre tract will be attached to the original copies of this Lease Agreement and substituted for this Exhibit "A". 29 EXECUTED DOCUMENT FOLLOWS ASSIGNMENT OF CONVENTION CENTER LEASE AGREEMENT AND MASTER AGREEMENT REGARDING CONVENTION CENTER COMPLEX DEVELOPMENT Reference is here made to (i) that certain Convention Center Complex Lease Agreement dated January 20, 1999 (the "Lease Agreement") between the City of Round Rock, Texas ("City"), as lessor, and Ryan Sanders Ryan, Inc., a corporation ("Assignor"), as lessee, and (ii) that certain Master Agreement Regarding Convention Center Complex Development ("Master Agreement") dated February 25, 1999 and executed by and between the City and Assignor. For and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and confessed, Assignor hereby assigns, sets over and delivers unto Round Rock Baseball, Inc., a Texas corporation ("Assignee") all of Assignor's rights, titles, and interests in and to both the Lease Agreement and the Master Agreement. Assignee represents that it is an entity in which Lynn N. Ryan (a/k/a Nolan Ryan), Reid Ryan or Don Sanders, singularly or in the aggregate, have at least a 51% ownership interest. Assignee, by its execution hereinbelow, hereby accepts such assignment and assumes all of the obligations, covenants, and agreements of Assignor under both the Lease Agreement and the Master Agreement. EXECUTED effective as of the 29th day of March, 1999. RYAN SANDERS RYAN, INC., a corporation By: ei . Ry .• resident ROUND ROCK BASEBALL, INC., a corporation By: Reid Ry. resident The City executes and delivers this instrument solely to evidence its consent to the assignment of the Lease Agreement and the Master A:reement as aforesaid. CITY OF R By: 95A:332961.1 017324;0001 C:\W PDOCS\ACITY\PRO134\LEASES\ASMNT. W PD/sIs • EXAS Robe - . Ben , Jr., City Manager MASTER AGREEMENT REGARDING CONVENTION CENTER COMPLEX DEVELOPMENT Dated as of February 25, 1999 between CITY OF ROUND ROCK, TEXAS as the City and RYAN SANDERS RYAN, INC., as RSR TABLE OF CONTENTS ARTICLE 1 Page GENERAL TERMS 1 Section 1.1 Definitions and Usage 1 ARTICLE 2 REPRESENTATIVES OF THE PARTIES 1 Section 2.1 The City Representatives. 1 Section 2.2 RSR Representatives. 2 ARTICLE 3 TERM 2 Section 3.1 Term 2 ARTICLE 4 PROJECT DESIGN 2 Section 4.1 Design. 2 ARTICLE 5 LEASED COMPONENTS AND SERVICE CONTRACTS 2 Section 5.1 Equipment Lease and Service Contract Covenants 2 Section 5.2 RSR's Rights Under Equipment Leases and Service Contracts 2 ARTICLE 6 CONDITIONS 3 Section 6.1 Conditions to RSR's Obligations to Perform 3 Section 6.2 Termination for Failure of RSR's Conditions 3 ARTICLE 7 PROJECT COSTS Section 7.1 Section 7.2 Section 7.3 Section 7.4 ARTICLE 8 3 Pre -financial Close Project Costs 3 Financing Related Project Costs 4 City's Contribution to Project Costs 4 RSR's Contribution to Project Costs 4 SCOPE OF DEVELOPMENT Section 8.1 Section 8.2 Section 8.3 Section 8.4 Section 8.5 Section 8.6 Section 8.7 Section 8.8 ARTICLE 9 4 Project Improvements 4 Completion Dates 5 Record Drawings and Other Documents 5 Contract Requirements and Warranty Claims 6 Access to the Project 6 Construction Cooperation/Coordination 7 Liquidated Damages 8 Project Change Orders 8 RSR OBLIGATIONS 8 Section 9.1 RSR Requested Additions or Modifications 8 Section 9.2 Project Costs 9 9 Section 9.3 Concession Build Out ARTICLE 10 RSR'S CONTRIBUTION 9 Section 10.1 RSR's Contribution 9 ARTICLE 11 APPROVALS AND RELATED MATTERS 9 Section 11.1 Items and Matters to be Reviewed and Confirmed and/or Approved by the City 9 Section 11.2 Items and Matters to be Reviewed and Confirmed and/or Approved by RSR 9 ii ARTICLE 12 PROJECT CHANGES/APPLICATION OF PROJECT SAVINGS 9 Section 12.1 Project Savings 9 Section 12.2 Application of Project Savings 9 ARTICLE 13 CONDEMNATION 10 Section 13.1 Condemnation 10 Section 13.2 Condemnation of Part 10 Section 13.3 Condemnation Proceedings 10 Section 13.4 Notice of Condemnation 11 Section 13.5 Condemnation by the City 11 ARTICLE 14 DEFAULTS AND REMEDIES 11 Section 14.1 Events of Default 11 Section 14.2 RSR's Remedies 12 Section 14.3 The City's Remedies 13 Section 14.4 Termination 13 Section 14.5 Cumulative Remedies 13 Section 14.6 No Indirect Damages 13 Section 14.7 Declaratory or Injunctive Relief 14 ARTICLE 15 ASSIGNMENT 14 Section 15.1 Assignments of RSR's Interest 14 Section 15.2 Transfers by the City 14 ARTICLE 16 DISPUTE RESOLUTION 14 Section 16.1 Dispute Resolution 14 iii ARTICLE 17 GENERAL PROVISIONS 15 Section 17.1 Relationship of the Parties 15 Section 17.2 Certificates Regarding Project Documents 15 Section 17.3 Approvals and Consents; Standards for Review 15 Section 17.4 Incorporation of Appendices, Schedules and Exhibits 16 Section 17.5 Interest on Overdue Obligations 16 Section 17.6 Definitions 16 Section 17.7 Survival 16 Section 17.8 Notices 16 Section 17.9 Severability 17 Section 17.10 Entire Agreement; Amendment and Waiver 17 Section 17.11 Table of Contents; Headings 17 Section 17.12 Parties in Interest; Limitation on Rights of Others 17 Section 17.13 Method of Payment 18 Section 17.14 Counterparts 18 Section 17.15 Governing Law 18 Section 17.16 Court Proceedings 18 Section 17.17 Time 18 Section 17.18 Interpretation and Reliance 18 Section 17.19 Attorneys' Fees 18 Section 17.20 Insurance Proceeds 19 APPENDICES: APPENDIX A APPENDIX B EXHIBITS: EXHIBIT "A" EXHIBIT "B" APPENDICES AND EXHIBITS Rules of Usage and Glossary of Defined Terms Addresses for Payments and Notices Pre -financial Close Project Costs Financing Related Project Costs iv MASTER AGREEMENT REGARDING CONVENTION CENTER COMPLEX DEVELOPMENT THIS MASTER AGREEMENT REGARDING CONVENTION CENTER COMPLEX DEVELOPMENT (this "Master Agreement") is made and entered into effective as of the 25th day of February, 1999, (the "Effective Date") by and between the CITY OF ROUND ROCK, TEXAS, a Texas home rule municipal corporation (the "City") and RYAN SANDERS RYAN, INC., a Texas corporation ("RSR"). The City and RSR collectively are referred to herein as the "Parties." RECITALS A. On January 20, 1999, the City and RSR entered into that one certain Convention Center Complex Lease Agreement ("Lease") whereby the City agreed to lease to RSR a convention center complex (the "Project") . B. The Project is to be designed by RSR and RSR is to pay for and construct the Project Improvements (Package A). The City is to construct the Project Improvements (Package B). C. The City and RSR are executing and entering into this Master Agreement to set forth certain agreements of the City and RSR with respect to the convention center complex, including the terms, conditions and provisions pursuant to which RSR shall design, and RSR and the City shall develop and construct their respective portions of the Project. AGREEMENTS For and in consideration of the respective covenants and agreements of the Parties herein set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the City and RSR do hereby agree as follows: ARTICLE 1 GENERAL TERMS Section 1.1 Definitions and Usage. Unless the context shall otherwise require, capitalized terms used in this Master Agreement shall have the meanings assigned to them in the Glossary of Defined Terms attached hereto as Appendix A, which also contains rules as to usage that shall be applicable herein. ARTICLE 2 REPRESENTATIVES OF THE PARTIES Section 2.1 The City Representatives. City hereby designates Robert L. Bennett and James R. Nuse, P.E. to be the City Representatives (the "City Representatives.") Any consent, approval, decision or 1 determination hereunder by either of the City Representatives shall be binding on City; provided, however, the City Representatives shall not have any right to modify, amend or terminate this Master Agreement. Section 2.2 RSR Representatives. RSR hereby designates Reid Ryan and R.D. Sneed to serve as the RSR Representatives (the "RSR Representatives.") Any consent, approval, decision or determination hereunder by either of the RSR Representatives shall be binding on RSR; provided, however, the RSR Representatives shall not have any right to modify, amend or terminate this Master Agreement. ARTICLE 3 TERM Section 3.1 Term. The term of this Master Agreement shall commence on the Effective Date and except as otherwise expressly provided herein shall expire on the Substantial Completion Date (the "Project Term.") ARTICLE 4 PROJECT DESIGN Section 4.1 Design. RSR has entered into the Architect's Contract and shall be solely responsible for the payment of all fees and reimbursable expenses due and payable from time to time under the Architect's Contract notwithstanding any contrary provision hereof. RSR shall be responsible for the timely completion of the design of the Project. RSR shall also be responsible for ensuring that the Project Plans are in compliance with rales and regulations of the Sanctioning Association, as defined in the Lease. ARTICLE 5 LEASED COMPONENTS AND SERVICE CONTRACTS Section 5.1 Equipment Lease and Service Contract Covenants. The City covenants and agrees that prior to entering into any Equipment Lease or Service Contract, the City shall obtain RSR's approval of any such Equipment Lease or Service Contract Section 5.2 RSR's Rights Under Equipment Leases and Service Contracts. The City covenants and agrees that, without the prior consent of RSR, the City will not sell, assign, transfer, amend, modify or terminate any of the Equipment Leases or Service Contracts to any Person other than RSR. Further, the City agrees that RSR is a third -party beneficiary of the Equipment Leases and Service Contracts and hereby irrevocably and unconditionally conveys, transfers and assigns to RSR the nonexclusive right to enforce any and all of the respective obligations of any Person under the Equipment Leases and Service Contracts, including, but not limited to, any and all representations and warranties thereunder. RSR shall have no obligation whatsoever to enforce any Equipment Lease or Service Contract. 2 ARTICLE 6 CONDITIONS Section 6.1 Conditions to RSR's Obligations to Perform. It shall be a condition precedent to the performance of RSR's obligations under this Master Agreement that on or before March 31, 1999, Financial Close shall have occurred in accordance with the Debt Plan approved by RSR . Section 6.2 Conditions to City's Obligations to Perform. As provided for in Article 10 below, concurrent with Financial Close and satisfaction of the other requirements set forth therein, RSR is to contribute to the City the RSR Contribution which sum is to be used by the City in constructing the Project Improvements (Package B). The RSR Contribution shall be in the form of an irrevocable letter of credit in the form and substance acceptable to the City. It shall be a condition to the City's obligations to construct the Project Improvements Work, Package B, that Financial Close will occur on or before March 31, 1999 and that RSR will make the RSR Contribution to the City concurrent with Financial Close. Section 6.3 Termination for Failure of Conditions. (a) If for any reason the condition set forth in Section 6.1 of this Master Agreement has not been fully and timely satisfied, this Master Agreement shall terminate at the option of either Party by written notice to the other Party and upon such termination, notwithstanding anything herein contained to the contrary, the Parties shall have no further rights, obligations or liabilities under this Master Agreement or otherwise relating to this Master Agreement. - Furthermore, upon such termination, the Lease shall also automatically terminate and be of no further force or effect. (b) If for any reason the condition set forth in Section 6.2 of this Master Agreement has not been fully and timely satisfied, this Master Agreement shall terminate at the sole option of the City by written notice to RSR and upon such termination by City, notwithstanding anything herein contained to the contrary, the Parties shall have no further rights, obligations or liabilities under this Master Agreement or otherwise relating to this Master Agreement. Furthermore, upon such termination, the Lease shall also automatically terminate and be of no further force or effect. ARTICLE 7 PROJECT COSTS Section 7.1 Pre -Financial Close Project Costs. The City agrees to contribute up to $300,000.00 toward the payment of Project Costs that are incurred by the City prior to Financial Close ("Pre -Financial Close Project Costs"). The Parties agree that the Pre -Financial Close Project Costs include, but are not necessarily limited to the costs shown on Exhibit "A," attached hereto and incorporated herein. Any Pre - Financial Close Project Costs in excess of the $300,000.00 City contribution shall be paid in the same manner as Post Financial Close Project Costs are paid. 3 Section 7.2 Financing Related Project Costs. The City agrees to pay for the Project Costs related to the public debt financing for the Project (the "Financing Related Project Costs.") The Financing Related Project Costs are limited to the items as shown on Exhibit "B," attached hereto and incorporated herein. Section 7.3 City's Contribution to other Project Costs. All Project Costs other than Pre - Financial Project Costs and Financing Related Project Costs are referred to herein as "Post Financial Close Project Costs." The City's sole contribution to all. Post Financial Close Project Costs is the sum of $7,350,000.00 (herein referred to as the "City's Contribution.") The Parties understand and agree that the source of a portion of the City's Contribution will be from the interest earnings on the bond proceeds during the construction period. RSR agrees and understands that under no circumstances whatsoever shall the City be expected or required to contribute any sum of money in excess of said $ 7,350,000.00 for Post Financial Close Project Costs; it being the understanding of the Parties that ALL liability for Post Financial Close Project Costs in excess of the City's Contribution, including but not limited to, cost overruns, Project Construction Change Orders, unforeseen contingencies, additions, modifications, etc. shall be the sole responsibility of RSR. Notwithstanding the foregoing, RSR will not be responsible for Project Costs resulting from the default by the City under the Project Construction Contract or any of the other Project. Construction Documents (unless the same is caused by RSR, its agents, contractors, or employees or results from a failure of the Architect to perform its obligations under the Architect's Contract in timely and complete manner). Further, it is neither the intent nor desire of the City or RSR to incur costs or fees under the Project Construction Contract in excess of the Project Contract Sum. The City and RSR agree to cooperate with one another in taking actions reasonably necessary tc minimize the risks of Project Change Orders or any other change orders under the Project Construction Contract. In the event it appears likely that the Project Contractor will he entitled to change orders under the Project Construction Contract increasing the contract sum to be paid thereunder above the original contract sum set forth in such contract, the City and RSR will prepare and submit to the Project Contractor proposed change orders effecting value engineering as to eliminate, to the maximum extent. practicable, such increases. Section 7.4 RSR's Contribution to Project Costs. RSR agrees to pay for all Pre -Financial Close Project Costs in excess of $300,060.00 and for all Post Financial Close Project Costs that exceed the City's Contribution. ARTICLE 8 SCOPE OF DEVELOPMENT Section 8,1 Project Improvements. The City shall enter into a Project Construction Contract with the lowest responsible bidder for the Project Improvements Work for the Project Improvements (Package B), (including, but not limited to the development, construction, and placement in service of the Project Improvements (Package B), at and within the Land and in accordance with this Master Agreement, the Project Submission Matters and all applicable Governmental Rules). All modifications to the Project prior to the execution of the Project Construction Contract for the Project Improvements (Package B) must be approved by the City and RSR. 4 RSR shall enter into a Project Construction Contract for the Project Improvements Work for the Project Improvements (Package A), (including, but not limited to the development, construction, and placement in service of the Project Improvements (Package A), at and within the Land and in accordance with this Master Agreement, the Project Submission Matters and all applicable Governmental Rules). All modifications to the Project prior to the execution of the Project Construction Contract for the Project Improvements (Package A) must be approved by the City and RSR. The Project Plans (including detailed plans and specifications) are the responsibility of RSR and shall be developed and prepared by the Architect at RSR's expense and direction and in cooperation with the City and submitted by RSR to the City for its approval. Any changes in the Project Plans shall be subject to the prior approval of RSR and the City. Any termination and replacement of the Project Contractor following a default by the Project Contractor shall be subject to the approval of RSR. Section 8.2 Completion Dates. Subject to extensions for Force Majeure, RSR shall cause Substantial Completion of the Project Improvements Work for the Project Improvements (Package A)1 to occur as follows: all work in the area of the convention center and stadium between grid lines U and 18 as shown on the Architect's plans shall be completed cio later than June 8, 1999. The remainder of the work in Package Al shall be completed no later than June 29, 1999. Subject to extensions for Force Majeure, RSR shall cause Substantial Completion of the Project Improvements Work for the Project Improvements (Package A)2 to occur no later than June 29, 1999..In the event RSR fails to substantially complete either Project Improvements Package Al or A2, the sole remedy for the City shall be an extension, on a day for day basis, of the Deadline for Substantia Completion. Subject to extensions for Force Majeure, the City shall cause Substantial Completion of all of the Project Improvements Work for Project Improvements (Package B) to occur on or before April 1, 2001 (such date, as so extended, being the "Deadline for Substantial Completion"). Notwithstanding anything to the contrary contained in this Master Agreement, in the event Substantial Completion of all of the Project Improvements Work for Project Improvement, Package B does not occur on or before the Deadline for Substantial Completion, for any reason other than failure of RSR to perform (or delay by RSR in performing) any of its material obligations under this Master Agreement, RSR shall have the option of terminating this Master Agreement by delivery of written notice thereof to the City. Upon any such termination, RSR's sole remedy shall be to receive a full refund of RSR's Contribution. In lieu of termination hereof, RSR shall have the right (but not the obligation) to enter the Land and direct completion of the Project Improvements (Package B) and the City agrees to provide to RSR the unutilized proceeds from the debt incurred under the Debt Plan to pay the costs and expenses incurred by RSR in completing the Project Improvements Work. Section 8.3 Record Drawings and Other Documents. Upon Substantial Completion of the Project Improvements Work for Project Improvements (Package A), RSR shall furnish to City (i) one (1) copy of the marked drawings that the Project Contractor is obligated to deliver to RSR under the Project Construction Contract. Upon Substantial Completion of the Project Improvements Work for Project Improvements (Package B), the City shall furnish to RSR (i) one (1) copy of the marked drawings that the Project Contractor is obligated to deliver to the City under the Project Construction Contract, together with all applicable permits, authorizations, and licenses necessary for RSR to use the same fully for purposes of 5 the operation, maintenance, and occupancy of the Project Improvements, (ii) two (2) copies of the operating and maintenance data binders required to be supplied by the Project Contractor under the Project Construction Contract, and (iii) certified true copies of all approvals, permits and certificates, including (if applicable), but not limited to, a certificate of occupancy or its equivalent, which shall then be required by any Governmental Authority in order for RSR to use and occupy the Leased Premises in accordance with the Lease. Section 8.4 Contract Requirements and Warranty Claims. The City shall ensure that the Project Construction Contract for the Project Improvements (Package B) and all subcontracts for the supply of equipment or systems to the Project Contractor for the Project Improvements (Package B) shall provide for the assignment of all warranties, maintenance agreements thereunder to RSR and give RSR the independent right to enforce the same, and permit RSR to use (but not own) any plans and specifications to which the City is then entitled pursuant to any such contracts. The City and RSR shall cooperate with each other in prosecuting any and all warranty and similar claims under any and all contracts or other agreements with third parties for the design or construction of. the Project Improvements Work, including, but not limited to any and all such claims under the Project Construction Contract (each a "Warranty Claim"). All recoveries from any Warranty Claim shall be applied first to the costs and expenses incurred in effecting such iecovery and then to the costs and expenses incurred in order to repair, restore, or replace any part of the Project improvements to which such Warranty Claire relates. Section 8.5 Access to the Project. RSR and its agents, contractors, sublessees, licensees, and concessionaires shall have the right of access, for themselves and their authorized representatives, to the Land and the Project Improvements and all portions thereof for the following purposes, without charges or fees or the commencement of rent under the Lease, and at normal construction hours during the construction period, provided RSR and all such agents, contractors, sublessees, licensees, and concessionaires (i) notify the City Representatives in advance of such proposed entry by any of RSR's subtenants, licensees or concessionaires, (ii) do not hinder or interfere with the Project Improvements Work or the activities of the City's contractors, and (iii) take such reasonable protective precautions or measures as the City or the Project Contractor may reasonably request, given the stage of the Project Improvements Work at the time of such entry and (iv) comply with the provisions of the Project Construction Contract relating to the City's rights to access: (a) Conducting inspections for purposes of determining compliance with this Master Agreement; (b) Construction and installation of any Concession Improvements and any other improvements permitted by the Lease so long as, in either case, RSR does not unreasonably interfere with the construction of the Project Improvements Work by the Project Contractor; (c) Construction and installation of any interior tenant finish work required pursuant to Space Leases, construction and installation of offices for RSR, use of its offices for ticket sales and 6 promotions and other normal and customary business, and equipping locker room and related facilities for RSR; (d) Installation of any additional fixtures or equipment; (e) Tours of the Land and Project Improvements sponsored by RSR; and (f) The erection and maintenance of billboards and signs during the construction period consistent with RSR's naming rights and advertising rights under the Lease. Subject to compliance with the City's ordinances related to occupancy of buildings, RSR shall have the right to take possession of its offices (subject to the terms hereof) and use the same for the conduct of RSR's normal and customary business. Any entry, access or occupancy provided to RSR pursuant to the terms of this Section 8.5 shall not be deemed to be acceptance of the Project Improvements Work or commence the Lease Tern. RSR shall be responsible for all utility and other costs associated with taking possession of its offices. Section 8.6 Construction Cooperation/Coordination. The City agrees that at all times during the Project Improvements Work for the Project improvements (Package B), the City will do the following: (a) Conduct the Project Improvements Work, and require all of its contractors, subcontractors and agents to conduct the Project Improvements Work, in cooperation with RSR so that (1) RSR will be kept reasonably apprized of all aspects of the Project Improvements Work, (ii) RSR can minimize the risk of any Project Change Orders, and (iii) RSR can coordinate the installation of any improvements, fixtures or equipment by RSR or any of its sublessees, licensees or concessionaires; (b) Make a reasonable effort to deliver to RSR a copy of all notices and correspondence, including, but not limited to, any notice of default, sent or received by the City under any Project Construction Documents, relating to the Project Improvements Work or the Leased Premises, unless directed otherwise by RSR or any such notice or correspondence received by the City shows that a copy has been delivered to RSR; (c) Instruct the Project Contractor and all other contractors and consultants engaged by the City with respect to the Project Improvements Work to provide RSR with a duplicate copy of all notices, correspondence, reports, drawings or specifications, and other documentation delivered or received by either of them simultaneously with their delivery to the City, including, but not limited to, advance notice of weekly progress meetings; and (d) Allow RSR and its representatives to attend meetings relating to the Project Improvements Work or the Leased Premises, including, but not limited to, weekly progress meetings and design review meetings. 7 Each party hereto agrees that all Project Construction Contract(s) will contain a provision stating that RSR and the City is a third party beneficiary of the agreements with such parties. RSR has entered into the Architect's Contract (as described above) and agrees to notify the Architect that the City is a third party beneficiary of the agreements of the Architect under the Architect's Contract. RSR agrees to cause the Architect to deliver to the City a copy of all notices, correspondence, reports, drawings, specifications and other documentation received by RSR from the Architect. Section 8.7 Liquidated Damages. The City agrees to include in the Project Construction Contract a provision whereby the Project Contractor agrees to pay liquidated damages (i) in the amount of $1,000 per day for each day beyond the date established therefor that the Project Contractor fails to achieve Substantial Completion, and (ii) in the amount of $100,000 for each scheduled home baseball game on or after April 16, 2000, which RSR is unable to conduct in the Project Improvements due to the failure of the Project Contractor to have achieved Substantial Completion in accordance with the Project Construction Contract. The City shall diligently in good faith by appropriate proceedings attempt to collect all liquidated damages from the Project Contractor to which the City may be entitled under the Project Construction Contract. The City agrees that all liquidated damages to which the City may be entitled with respect to the events described in clause (ii) of this Section 8.7 are for the sole and exclusive benefit of and shall be paid to RSR promptly upon receipt of the same by the City (through offset under the Project Construction Contract or otherwise), less the amount of attorneys' fees and other reasonable collection costs actually paid by the City in connection therewith. The City agrees that RSR is a third party beneficiary of the obligations of the Project Contractor to pay liquidated damages arid hereby conveys and assigns to RSR the non-exclusive right to enforce the obligations of the Project Contractor to pay the same. Section 8.8 Project Change Orders. It is anticipated that the scope and size of the Project will probably require Project Change Orders. As a result, the Project Fund will include $100,000 for Project Change Orders (such amount herein referred to as the "Project Change Order Fund.") No further deposits need to be made to the Project Change Order Fund unless and until proceeds are disbursed therefrom for Project Change Orders to the extent that less than $25,000.00 is left in said Fund, in which case subsequent deposits shall be made by RSR so as to restore such balance to $100,000. Regardless of the foregoing, no subsequent deposit shall be required of RSR if there are interest earnings from the RSR Contribution which are sufficient to restore the balance to at least $100,000. Any excess funds left in the Project Change Order Fund after completion of the Project shall be refunded to RSR. RSR shall be solely responsible for the cost of any and all Project Change Orders that in the aggregate exceed the Project Change Order Fund, subject to the provisions of Section 7.3 above. ARTICLE 9 RSR OBLIGATIONS Section 9.1 Section 9.1 RSR Requested Additions or Modifications. In the event that RSR determines that it desires any additions or modifications to the Project ("RSR Requested Modifications,") it shall submit a written request along with plans and specifications for the RSR Requested Modifications to the City for its approval, which approval shall not be unreasonably withheld. A RSR Requested 8 Modification will not be considered as a Project Change Order. In the event that the RSR Requested Modification results in an increase in the Project Cost, such increase shall be the sole responsibility of RSR, and it will be the responsibility of RSR to pay the cost of the RSR Requested Modifications and to make appropriate arrangements with the Project Contractor to perform the same. Section 9.2 Project Costs. RSR agrees to pay when due all Pre -Financial Close Project Costs in excess of $300,000 and Post Financial Close Project Costs in excess of the City Contribution. RSR shall pay such costs within fifteen (15) days after the receipt of a request from the City. The failure of RSR to pay such costs within thirty (30) days after receipt of the request shall he a RSR Default. Section 9.3 Concession Build Out. RSR covenants and agrees that RSR shall design, construct, and place in service the Concession Improvements, or cause the same to be designed, constructed, and placed in service in accordance with applicable Governmental Rules, all at RSR's sole cost and expense. RSR agrees that when complete the Concession Improvements will be comparable to concession facilities contained in comparable baseball facilities. ARTICLE 10 RSR'S CONTRIBUTION Section 10.1 RSR's Contribution. Concurrent with Financial Close, RSR agrees to deposit with the City an irrevocable letter of credit in the amount of $7,500,000.00. After bids are received but prior to the City's entering into the Project Construction Contract to construct the Project Improvements (Package B,) RSR agrees to replace the aforesaid letter of credit with its cash contribution, herein referred to as the "RSR Contribution." On the effective date hereof, it is currently estimated that the RSR Contribution will be approximately $7,400,000.00 less its costs to construct the Project Improvements (Package A.) ARTICLE 11 APPROVALS AND RELATED MATTERS Section 11.1 Items and Matters to be Reviewed and Confirmed and/or Approved by the City. All Project Submission Matters and any issuance of, changes to, or modifications of, the Project Submission Matters must be approved by the City. Section 11.2 Items and Matters to be Reviewed and Confirmed and/or Approved by RSR. The City must obtain the prior approval of RSR, acting through the RSR Representative, of the Project Submission Matters and any issuance of or changes to, or modifications of, the Project Submission Matters. 9 ARTICLE 12 PROJECT CHANGES/APPLICATION OF PROJECT SAVINGS Section 12.1 Project Savings. The total of all Project Savings, as and when realized and however realized, shall be reinvested by the City in the Project Improvements in the manner and in the priority specified in Section 12.2. Section 12.2 Application of Project Savings. The City agrees that all Project Savings will be applied to the Project Improvements Work and shall be applied in the following order of priority: (a) First, to amounts payable to the Project Contractor as increases in the Project Contract Sum due to Project Change Orders approved by the City ; and (b) Second, to amounts payable to the Project Contractor as increases in the Project Contract Sum due to RSR Requested Modifications. ARTICLE 13 CONDEMNATION Section 13.1 Condemnation. 13.1.1 Condemnation of Substantially All of the Leased Premises and the Improvements. if, at any time prior to the Lease Commencement Date, title to the whole or Substantially All of the Leased Premises shall be taken in Condemnation Actions or by any right of eminent domain (or conveyed in lieu of any such proceeding), other than for a temporary use or occupancy that is for less than twelve (12) months in the aggregate, this Master Agreement and the Lease shall terminate and expire on the date of such taking (or conveyance). Upon any termination hereunder all sums, amounts or other compensation for the Leased Premises paid or payable to RSR or the City (herein referred to as the "Condemnation Award") shall be distributed, first in pro -rata shares to the City and RSR in proportion to their respective contributions to the Project Costs, provided however that the said distribution to RSR shall not exceed its total contribution to the Project Costs. After RSR is reimbursed in full for its total contribution to the Project Costs, any remainder of the Condemnation Award shall be paid to the City. Any separate condemnation award to RSR for its leasehold interests shall be paid directly to RSR. 13.1.2 Definitions of Substantially All of the Leased Premises and the Improvements and Condemnation Proceedings. For purposes of this Article 13, "Substantially All of the Leased Premises and the Improvements" shall be deemed to have been taken if, by reason of the taking of title to the Leased Premises and the improvements or any portion thereof by Condemnation Actions, an Untenantable Condition (as such term is defined in the Lease) exists, or is reasonably expected to exist, for longer than twelve (12) months. For purposes of this Master Agreement, the term "Condemnation Actions" shall include a taking by any Governmental Authority (or other Person with power of eminent domain) by exercise of any 10 right of eminent domain or by appropriation and an acquisition by any Governmental Authority (or other Person with power of eminent domain) through a private purchase in lieu thereof. Section 13.2 Condemnation of Part. In the event of a Condemnation Action affecting less than the whole or Substantially All of the Leased Premises, the Project Term shall not be reduced or affected in any way. Section 13.3 Condemnation Proceedings. The City, RSR, each shall have the right, at its own expense, to appear in any Condemnation Action and to participate in any and all hearings, trials and appeals therein. In addition, notwithstanding anything to the contrary contained in this Master Agreement, RSR shall have the right to claim, prove and receive in the Condemnation Action any award allowed for RSR's separate Property or damage to or relocation costs of RSR's business. Section 13.4 Notice of Condemnation. In the event RSR or the City shall receive notice of any proposed or pending Condemnation Action affecting the Project Improvements Work or Leased Premises, the Party receiving such notice shall promptly notify the other Party. Section 13.5 Condemnation by the City. The provisions of this Article 13 for the allocation of any Condemnation Awards are not intended to be, and shall not be construed or interpreted as, any limitation on or liquidation of any claims or damages (as to either amount or type of damages) of RSR against the City in the event of a condemnation by the City of any portion or all of the Leased Premises. ARTICLE 14 DEFAULTS AND REMEDIES Section 14.1 Events of Default. 14.1.1 City Default. The occurrence of any of the following shall be an "Event of Default" by the City or a "City Default": (a) The failure of the City to pay any of its monetary obligations under this Master Agreement when due and payable under this Master Agreement if such failure continues for thirty (30) days after RSR gives notice to the City that such amount was not paid when due; (b) Abandonment of the Project by the City or any termination, in whole or in part, of any of the Project Construction Contract or any of the work thereunder by the City without the consent of RSR. unless pursuant to a right of termination based upon the existence of an event of default under such Project Construction Contract; (c) Any suspension of the Project Improvements Work by the City for longer than sixty (60) consecutive days or one hundred twenty (120) days in any three hundred sixty-five (365) day period for any reason other than Force Majeure; or 11 (d) The failure of the City to substantially perform or substantially observe any of the obligations, covenants or agreements to be performed or observed by City under this Master Agreement within thirty (30) days after notice from RSR of such failure; provided however, that if such performance or observance cannot reasonably be accomplished within such thirty (30) day period, then no Event of Default by the City shall occur unless the City fails to commence such performance or observance within such thirty (30) day period and fails to diligently prosecute such performance or observance to conclusion thereafter; provided further, however, that if such performance or observance has not been accomplished within one hundred twenty (120) days after notice from the RSR to the City of such failure (notwithstanding the City's diligent prosecution of its curative efforts), then such failure shall constitute an Event of Default by the City hereunder. 14.1.2 RSR Default. The occurrence of the following shall be an "Event of Default" by RSR or a "RSR Default": (a) The failure of RSR to pay any of its monetary obligations to the City under this Master Agreement when due and payable if such failure continues for thirty (30) days after the City gives notice to RSR that such amount was not paid when due; (b) The failure of RSR to substantially perform or substantially observe any of the obligations, covenants or agreements to be performed or observed by RSR under this Master Agreement within thirty (30) days after notice from the City of such failure; provided, however, that if such performance or observance cannot reasonably be accomplished within such thirty (30) day period, then no Event of Default by RSR shall occur unless RSR fails to commence such performance or observance within such thirty (30) day period and fails to diligently prosecute such performance or observance to conclusion thereafter; provided further, however, that if such performance or observance has not been accomplished within one hundred twenty (120) days after notice from the City to RSR of such failure (notwithstanding RSR's diligent prosecution of its curative efforts), then such failure shall constitute an Event of Default by RSR hereunder; or (c) The (i) filing by RSR of a voluntary petition in bankruptcy; or (ii) adjudication of RSR as a bankrupt; or (iii) approval as properly filed by a court of competent jurisdiction of any petition or other pleading in any action seeking reorganization, rearrangement, adjustment, or composition of, or in respect of RSR under the United States Bankruptcy Code or any other similar state or federal law dealing with creditors' rights generally; or (iv) appointment of a receiver, trustee or other similar official for RSR or its Property, unless within thirty (30) days after such approval of' filing or appointment RSR causes such proceeding or appointment to be stayed or discharged. Section 14.2 RSR's Remedies. Upon the occurrence of any City Default, RSR may, at its sole discretion, have the option to pursue any one or more of the following remedies without any notice or demand whatsoever, other than any notice expressly provided in this Master Agreement: 12 (a) RSR may terminate this Master Agreement and the Lease, as provided in Section 14.4; (b) In the case of a City Default described in either of Section 14.1(b) or (c), RSR may (but shall not be obligated) enter the Land and direct completion of the Project Improvements Work and the City agrees to provide to RSR the unutilized proceeds from the debt incurred under the Debt Plan to pay the costs and expenses incurred by RSR in completing the Project Improvements Work; and (c) RSR may exercise any and all other remedies available to RSR at law or in equity, but subject to any limitations thereon set forth in this Master Agreement. Section 14.3 The City's Remedies. Upon the occurrence of any RSR Default, the City may, at its sole discretion, have the option to pursue any one or more of the following remedies without any notice or demand whatsoever, other than any notice expressly provided in this Master Agreement: (a) The City may terminate this Master Agreement and the Lease as provided in Section 14.4; and (b) The City may exercise any and all other remedies available to the City at law or in equity, but subject to any limitations thereon set forth in this Master Agreement. Section 14.4 Termination. Upori the occurrence of a City Default as described in Section 14.1.1 or a RSR Default as described in Section 14.1.2, the non -defaulting Party, in addition to its other remedies at law or in equity, shall have the right to give to the defaulting Party notice (a "Final Notice") of the non - defaulting Party's intention to tenninate this Master Agreement and the Lease, after the expiration of a period of thirty (30) days from the date such Final Notice is delivered unless the Event of Default is cured, and upon expiration of such thirty (30) day period, if the Event of Default is not cured, this Master Agreement and the Lease shall terminate without liability to the non -defaulting Party. If, however, within such thirty (30) day period the defaulting Party cures such Event of Default, then this Master Agreement and the Lease shall not terminate by reason of such Final Notice. In the event of a termination of this Master Agreement and the Lease by either Party under this Section 14.4, then notwithstanding anything to the contrary set forth in this Master Agreement and the Lease all obligations of the Parties hereunder and under the Lease automatically shall terminate also, without liability to the other Party. Section 14.5 Cumulative Remedies. Subject to the provisions of Section 14.6, each right or remedy of RSR and the City provided for in this Master Agreement shall be cumulative of and shall be in addition to every other right or remedy of RSR or the City provided for in this Master Agreement, and the exercise or the beginning of the exercise by RSR or the City of any one or more of the rights or remedies provided for in this Master Agreement shall not preclude the simultaneous or later exercise by RSR or the City of any or all other rights or remedies provided for in this Master Agreement or any other Project Document or hereafter existing at law or in equity, by statute or otherwise. The City expressly agrees that 13 in the event of termination hereof by RSR, RSR shall have the right to seek and obtain and full refund from the City of the $ RSR Contribution made by RSR to the City in accordance with this Master Agreement. Section 14.6 No Indirect Damages. IN NO EVENT SHALL RSR OR THE CITY BE LIABLE UNDER ANY PROVISION OF THIS MASTER AGREEMENT OR OTHERWISE FOR LOST PROFITS, INCLUDING 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 THE SOLE OR CONCURRENT NEGLIGENCE OF RSR OR THE CITY OR ANY OF THEIR AFFILIATES OR RELATED PARTIES; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT AFFECT ANY LIABILITY THAT THE City MAY OTHERWISE HAVE UNDER THIS MASTER AGREEMENT IN RESPECT TO LIQUIDATED DAMAGES. WITHOUT LIMITING THE FOREGOING, THIS LIMITATION OF LIABILITY SHALL APPLY TO CLAIMS OF RSR OR THE CITY ARISING OUT OF THIRD PARTY CLAIMS AGAINST RSR OR THE CITY FOR ANY OF THE FOREGOING. Section 14.7 Declaratory or Injunctive Relief. In addition to the remedies set forth in this Article 14 and subject to the provisions of Article 17, the Parties shall be entitled, in any circumstances they may deem appropriate, to seek injunctive relief prohibiting (rather than mandating) action by the other Party for any Event of Default of the other Party or declaratory relief with respect to any matter under this Master Agreement. ARTICLE 15 ASSIGNMENT Section 15.1 Assignments of RSR's Interest. RSR shall not sell, assign or transfer its rights under this Master Agreement (each, a "Transfer") without the prior written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned. The City's consent to a Transfer shall not be required for a Transfer to a transferee that RSR is entitled to and concurrently does Transfer under the Lease to the same transferee. Section 15.2 Transfers by the City. The City shall not sell, assign or otherwise transfer this Master Agreement or any of its rights, obligations or duties under this Master Agreement , without first obtaining the prior written consent of RSR. pursuant to this Article 15, which consent shall not be unreasonably withheld, delayed or conditioned. ARTICLE 16 DISPUTE RESOLUTION Section 16.1 Dispute Resolution. In the event any dispute, controversy or claim between or among the Parties arises under this Master Agreement or any right, duty or obligation arising therefrom or the relationship of the Parties thereunder (a "Dispute or Controversy"), including, but not limited to, a Dispute 14 or Controversy relating to the effectiveness, validity, interpretation, implementation, termination, cancellation or enforcement of this Master Agreement, the Parties shall first attempt in good faith to settle and resolve such Dispute or Controversy by mutual agreement in accordance with the terms of this Article 16. In the event a Dispute or Controversy arises, either Party shall have the right to notify the other that it has elected to implement the procedures set forth in this Article 16. Within fifteen (15) days after delivery of any such notice by one Party to the other regarding a Dispute or Controversy, the City Representatives and RSR Representative shall meet at a mutually agreed time and place to attempt, with diligence and good faith, to resolve and settle such Dispute or Controversy. ARTICLE 17 GENERAL PROVISIONS Section 17.1 Relationship of the Parties. The relationship of RSR and the City under this Master Agreement is that of independent parties, each acting in its own best interests, and notwithstanding anything in this Master Agreement to the contrary, no partnership, joint venture or other or additional business relationship is established or intended hereby between RSR and the City. Section 17.2 Certificates Regarding Project Documents. Each Party agrees, at any time and from time to time upon riot less than thirty (30) days prior written notice from the other Party, to execute, acknowledge and deliver to such other Party, or to any Person designated by the other Party, a statement certifying that this Master Agreement are unmodified and in full force and effect (or, if there have been modifications, that the Master Agreement are in full force and effect as modified and stating the modifications), and stating whether or not, to the knowledge of the Party making the statement, the other Party is in default hereunder or thereunder in keeping, observing or performing any of the terms, covenants or conditions contained in this Master Agreement to be kept, observed or performed by the other Party (or whether there is a potential RSR Default or a potential City Default) and, if in default, specifying each such default of which the Party making the statement is aware, it being intended that any such statement delivered pursuant to this Section 17.2 shall be relied upon by the other Party or any Person designated by such other Party. Section 17.3 Approvals and Consents; Standards for Review. 17.3.1 Review and Approvals or Consent Rights. The provisions of this Section 17.3 shall be applicable with respect to all instances in which it is provided under this Master Agreement that the City or RSR exercises Review and Approval or Consent Rights; provided, however, that if the previsions of this Section 17.3 specifying time periods for exercise of Review and Approval or Consent Rights shall conflict with other express provisions of this Master Agreement providing for time periods for exercise of designated Review and Approval or Consent Rights, then the provisions of such other provisions of this Master Agreement shall control. As used herein, the term "Review and Approval or Consent Rights" shall include, without limiting the generality of that term, all instances in which one Party (the "Submitting Party") is permitted or required to submit to the other Party or to the representative of that other Party any document, notice or determination of the Submitting Party and with respect to which the other Party or its representative 15 (the "Reviewing Party") 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 Master Agreement specifically provides that the Review and Approval or Consent Rights may be exercised in the sole and absolute discretion (or a similar standard) of the Reviewing Party, in connection with exercising its Review and Approval or Consents rights under any provision of this Master Agreement and whether or not specifically provided in any such provision, the Reviewing Party covenants and agrees to act in good faith, with due diligence, and in a commercially reasonable manner with regard to each and all of such Review and Approval or Consent Rights and to not unreasonably withhold, condition or delay its approval of or consent to any submission. 17.3.2 Standard for Review. The Submitting Party shall use reasonable efforts to cause any matter submitted to the Reviewing Party by the Submitting Party and with respect to which the Reviewing Party has Review and Approval or Consent Rights under this Master Agreement to be submitted under cover of a request which (i) contains the heading or caption "TIME SENSITIVE - REQUEST FOR REVIEW/APPROVAL OR CONSENT" (or similar phrase), and (ii) states the date by which a response is required under the terms of this Master Agreement. 17.3.3 Deemed Approval or Consent If no response from the Reviewing Party is delivered to the Submitting Party within thirty (30) days after the submission, or such shorter time as may be required hereby. 17.3.4 Key Elements of the Project. Notwithstanding the other provisions of this Section 17.3, RSR and the City agree that RSR may, in its sole and absolute discretion, withhold its approval or consent to any Project Submission Matters and any changes to, or modifications of, any Project Submission Matters that result in or are likely to result in (i) any extensions of, or any inability to achieve, the schedules and deadlines contained in this Master Agreement, including, but not limited to, the Deadline for Substantial Completion, (ii) an increase in Operating Expenses, (iii) a failure of the Project Improvements to conform to minor league baseball rules and regulations, (vi) any violation of applicable Governmental Rule or (viii) subject to the provisions of Section 7.3 above, any material change in the Project Plans. Section 17.4 Incorporation of Appendices, and Exhibits. All Appendices, and Exhibits attached to this Master Agreement are incorporated herein by this reference in their entirety and made a part hereof for all purposes. Section 17.5 Interest on Overdue Obligations. If any sum due hereunder is not paid on the due date thereof, the Party hereto owing such obligation to the other Party shall pay to the other Party interest thereon at the Default Rate, concurrently with the payment of the amount from the date such amount was due until paid. Any payment of interest at the Default Rate pursuant to this Master Agreement shall not excuse or cure any default hereunder. 16 Section 17.6 Definitions. Except as otherwise expressly provided in the Master Agreement, capitalized terms used in the Master Agreement and all appendices, schedules and exhibits thereto shall have the respective meanings given in Appendix A to the Master Agreement. Section 17.7 Survival. Except as otherwise expressly provided in the Master Agreement or in any other Project Document, the representations, warranties. covenants and agreements of the Parties contained or provided for in such instruments and the Parties' obligations under any and all thereof shall survive the execution and delivery of such instruments. Section 17.8 Notices. All notices, consents, directions, approvals, instructions, requests and other communications given to a Party under the Master Agreement shall be given in writing to such Party at the address set forth in Appendix B to the Master Agreement or at such other address as such Party shall designate by written notice to each of the other Party to the Master Agreement and may be delivered personally (including delivery by private courier services) or by telecopy (with a copy of such notice sent by private courier service for overnight delivery or by registered or certified mail) to the Party entitled thereto, and shall be deemed to be duly given or made when delivered by hand unless such day is not a Business Day, in which case such delivery shall be deemed to be made as of the next succeeding Business Day or in the case of telecopy (with a copy of such notice sent by private courier service for overnight delivery or by registered or certified mail), when sent, so long as it was received during normal business hours of the receiving Party on a Business Day and otherwise such delivery shall be deemed to be made as of the next succeeding Business Day. Section 17.9 Severability. If any term or provision of the Master Agreement, or the application thereof to any Person or circumstances, shall to any extent be invalid or unenforceable in any jurisdiction, as to such jurisdiction, the remainder of the Master Agreement, or the application of such term or provision to the Persons or circumstances other than those as to which such term or provision is held invalid or unenforceable in such jurisdiction, shall not be affected thereby, and each term and provision of the Master Agreement shall be valid and enforceable to the fullest extent permitted by applicable law and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the Parties to the Master Agreement hereby waive any provision of law that renders any provision thereof prohibited or unenforceable in any respect. Section 17.10 Entire Agreement; Amendment and Waiver. The Master Agreement, constitutes the entire agreement of the Parties thereto with respect to the subject matter thereof and supersedes all prior written and oral agreements and understandings with respect to such subject matter. Neither the Master Agreement nor any of the terms thereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing signed by the Party against which the enforcement of the termination, amendment, supplement, waiver or modification shall be sought. 17 Section 17.11 Table of Contents; Headings. The table of contents and headings of the various articles, sections and other subdivisions of the Master Agreement are for convenience of reference only and shall not modify, define or limit any of the terms or provisions hereof. Section 17.12 Parties in Interest; Limitation on Rights of Others. The terms of the Master Agreement shall be binding upon, and inure to the benefit of, the Parties and their permitted successors and assigns. Nothing in the Master Agreement, whether express or implied, shall be construed to give any Person (other than the Parties and their permitted successors and assigns and as expressly provided therein) any. legal or equitable right, remedy or claim under or in respect of such instrument or any covenants, conditions or provisions contained therein or any standing or authority to enforce the terms and provisions of such instrument. Section 17.13 Method of Payment. All amounts required to be paid by any Party to the other Party or any Person, either under the Master Agreement or under any other Project Document, shall be paid in such freely transferable coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts, by wire transfer, or other acceptable method of payment, of immediately available federal funds to the account set forth in Appendix B to the Master Agreement or to such other account located in the United States as such Party may specify by notice to the other Parties. If any payment under this Master Agreement is required to be made on a day other than a Business Day, the date of payment shall be extended to the next Business Day. Section 17.14 Counterparts. The Master Agreement may be executed by the Parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same Master Agreement. All signatures need not be on the same counterpart. Section 17.15 Governing Law. The Master Agreement and the actions of 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 17.16 Court Proceedings. Subject to the agreement of the Parties regarding arbitration and other alternative procedures for dispute resolution, any suit, action or proceeding against any Party to such instrument arising out of or relating to the Master Agreement, any transaction contemplated thereby or any judgment entered by any court in respect of any thereof may be brought in state court located in the City of Georgetown, Texas, and each Party hereby submits to the nonexclusive jurisdiction of such courts for the purpose of any such suit, action or proceeding. Section 17.17 Time. Times set forth in such instrument for the performance of obligations shall be strictly construed, time being of the essence of such instrument. However, in the event the date specified or computed under such instrument for the performance, delivery, completion or observance of a covenant, agreement, obligation or notice by either Party, hereto or for the occurrence of any event provided for therein, shall be a Saturday, Sunday or Legal Holiday, then the date for such performance, delivery, 18 completion, observance or occurrence shall automatically be extended to the next calendar day that is not a Saturday, Sunday or Legal Holiday. Section 17.18 Interpretation and Reliance. No presumption will apply in favor of any Party in the interpretation of the Master Agreement or in the resolution of any ambiguity of any provision thereof. Section 17.19 Attorneys' Fees. If Party defaults in the performance of any covenants, obligations or agreements of such party contained herein and the other Party places the enforcement of such instrument, or any part thereof, or the exercise of any other remedy therein provided for such default, in the hands of an. attorney who files suit or institutes an action or proceeding upon the same (either by direct action or counterclaim), the non -prevailing Party shall pay to the prevailing Party its reasonable attorneys' fees and costs of court. In addition to the foregoing award of attorneys' fees to the prevailing Party, the prevailing Party shall be entitled to its attorneys' fees incurred in any post judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of the Master Agreement into any judgment on such instrument. Section 17.20 Insurance Proceeds. Insurance proceeds paid or disbursed to the City, whether from the issuers of any insurance policies or otherwise, shall be held by the City in dust for the purposes of paying the cost of the Casualty Repair Work and shall be applied by the City to such casualty repair work. The City shall be obligated to make payment, disbursement, reimbursement or contribution toward the costs of the casualty repair work that exceed the amount of the insurance proceeds. IN WITNESS WHEREOF, this Master Agreement has been executed by the City on February 25, 1999. CITY 0 ROUND ROCK, TEXAS RYAN SANDERS RYAN, INC. By. Charles Culpepper, Mil}/or 19 APPENDIX A TO MASTER AGREEMENT RULES AS TO USAGE AND GLOSSARY OF DEFINED TERMS Rules as to Usage 1. The terms defined below have the meanings set forth below for all purposes, and such meanings are equally applicable to both the singular and plural forms of the terms defined. 2. "Include," "includes" and "including" shall be deemed to be followed by "without limitation" whether or not they are in fact followed by such words or words of like import. 3. "Writing," "written" and comparable terms refer to printing, typing, lithography and other means of reproducing in a visible form. 4. Any agreement, instrument or Governmental Rule defined or referred to below or in any agreement or instrument that is governed by this Appendix means such agreement or instrument or Governmental Rule as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of Governmental Rules) by succession of comparable successor Governmental Rules and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein. 5. References to a Person are also to its permitted successors and assigns. 6. Any term defined below by reference to any agreement, instrument or Governmental Rule has such meaning whether or not such agreement, instrument or Governmental Rule is in effect. 7. "Hereof," "herein," "hereunder" and comparable terms refer to the entire agreement or instrument in which such terms are used and not to any particular article, section or other subdivision thereof or attachment thereto. References in 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 schedules, exhibits or appendices in any agreement or instrument that is governed by this Appendix are to schedules, exhibits or appendices attached to such instrument or agreement. 20 8. Pronouns, whenever used in any agreement or instrument that is governed by this Appendix and of whatever gender, shall include natural persons, corporations, limited liability companies, partnerships, and associations of every kind and character. 9. References to any gender include, unless the context otherwise requires, references to all genders. 10. The word "or" will have the inclusive meaning represented by the phrase "and/or." 11. The phrase "and/or" when used in a conjunctive phrase, shall mean any one or more of the Persons specified in or the existence or occurrence of any one or more of the events, conditions or circumstances set forth in that phrase; provided, however, that, when used to describe the obligation of one or more Persons to do any act, it shall mean that the obligation is the obligation of each of the Persons but that it may be satisfied by performance by any one or more of them. 12. "Shall" and "will" have equal force and effect. 13. Unless otherwise specified, all references to a specific time of day in any agreement or instrument that is governed by this Appendix shall be based upon Central Standard Time or Central Daylight Savings Time, as applicable on the date in question in Houston, Texas. 14. References to "$" or to "dollars" shall mean the lawful currency of the United States of America. Glossary of Defined Terms "Architect" means HKS, INC. "Architect's Contract" means the services contract between RSR and the Architect for, among other things, the design of the Project Improvements, the preparation of the Project Plans, and construction administration services, as the same may be amended, supplemented, modified, renewed, extended or replaced from time to time with the consent of the City and RSR. "Business Day" shall mean a day of the year that is not a Saturday, Sunday, or Legal Holiday . "City" shall mean the City of Round Rock, Texas, a Texas municipal corporation and home rule city. "City's Contribution" shall mean the sum of $7,350,000 as set forth in Section 7.1. "City Representatives" shall have the meaning given to it in Section 2.1 of the Master Agreement. 21 "Component" means any item that is incorporated into the Project Improvements, or any portion thereof, including, by way of illustration and not limitation, all ancillary systems included in the Project Improvements, the structure and all structural members, concrete, controls, instrumentation, engines and motors, dynamos, cabling, wheels, transformers, capacitors, load centers, fuses, circuit breakers, gears, bearings, valves, pipes, joints, covers, seats, electronic and mechanical parts, subcomponents, and other equipment. "Condemnation Action" shall have the meaning given to it in Section 13.1.2 of the Master Agreement. "Condemnation Award" shall have the meaning given to it in Section 13.1.1 of the Master Agreement. "Deadline for Substantial Completion" shall have the meaning given to it in Section 8.3 of the Master Agreement. "Debt Plan" means the City's debt plan for financing the City's Contribution to the Project Costs. The Debt Plan shall be subject to the approval of RSR. "Default Rate" means the lesser of (i) the Prime Rate , or (ii) the maximum rate of interest permitted to be charged by applicable law. "Dispute or Controversy" shall have the meaning given to it in Article 16 of the Master Agreement. "Effective Date" shall have the meaning given to it in the first paragraph of the Master Agreement. "Equipment Lease" means any lease whereby a Component of the Project Improvements is to be leased (whether combined with a purchase option or not). "Event of Default" shall have the meaning given to it in Sections 14.1.1 and 14.1.2 of the Master Agreement. "Final Completion" means, when used with respect to the work to be performed under the Project Construction Contract, "final completion" as defined in the Project Construction Contract, and with respect to the balance of the Project Improvements Work or any Component of the balance of the Project Improvements Work (such as the Development Work), the final completion of all aspects of such work and improvements in accordance with all Governmental Rules and in accordance with the requirements for the same contained in the Master Agreement and Project Construction Documents, including, but not limited to, the completion of the punch -list type items referred to in the definition of the term "Substantial Completion". Substantial Completion of such work and improvements is a prerequisite to Final Completion of the same. 22 "Final Notice" shall have the meaning given to it in Section 14.4 of the Master Agreement. "Financial Close" means the closing by the City of financial arrangements with third parties whereby such parties agree to loan to the City funds in the amount specified in the Debt Plan approved by RSR. "Financing Related Project Costs" shall have the meaning given to it in Section 7.2. "Fiscal Year" means the twelve (12) month period from time to time established by the City as its fiscal year, which is currently the twelve (12) month period from October 1 through September 30 of each calendar year. "Force Majeure" means Acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, orders of any kind of the government of the United States of America, or of any state thereof, or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, tornadoes, storms, floods, washouts, droughts, arrests, restraining of government and people, civil disturbances, explosions, nuclear accidents, wars, part or entire failure of utilities, shortages of labor, material, supplies or transportation, or any other cause not reasonably within the control of the party claiming inability to perform due to such cause. "Force majeure" shall not, however, include economic hardship. "Governmental Authority" means any federal, state, local , court, tribunal, regulatory commission or other body, whether legislative, judicial or executive (or a combination or permutation thereof), and any arbitrator to whom a dispute has been presented under Governmental Rule or by agreement of the parties with an interest in such dispute. "Governmental Rule" means any statute, law, treaty, rule, code, ordinance, regulation, permit, interpretation, certificate or order of any Governmental Authority, or any judgment, decision, decree, injunction, writ, order or like action of any court, arbitrator or other Governmental Authority. . "Land" shall mean the real property described on Exhibit A to the Lease. " Lease" means the Lease dated as January 20, 1999, between the City, as lessor, and RSR, as lessee, and covering the Land and Project Improvements, as the same may be amended, supplemented, modified, renewed or extended from time to time with the consent of RSR and the City. Lease. " Lease Commencement Date" means the "Commencement Date," as such term is defined in the "Lease Term" shall mean the "Term" as defined in the Lease. "Leased Premises" shall have the meaning given to it in the Lease. 23 "Legal Holiday" means the day, other than a Saturday or Sunday, on which the City's administrative offices are closed for business. "Master Agreement" means the Master Agreement Regarding Convention Center Complex Development dated as of the Effective Date between the City and RSR, as the same may be amended, supplemented, modified, renewed or extended from time to time with the consent of the City and RSR. "Operating Expenses" shall mean the costs to operate, repair, and maintain the Project Improvements. "Parties" shall have the meaning given to it in the first paragraph of the Master Agreement. "Person" shall mean any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, Governmental Authority or any other form of entity. "Pre -Financial Close Project Costs" shall have the meaning given to it in Section 7.1. "Post Financial Close Project Costs shall have the meaning given to it in Section 7.3. "Prime Rate" means the rate of interest from time to time published by the Wall Street Journal as the "prime rate". "Project" means the convention center complex defined in the Lease and this Master Agreement. "Project Budget" shall mean the total project budget, as from time to time amended, for all Project Costs, broken down in reasonable detail by "hard" and "soft" cost categories, including, but not limited to, separate line items for debt service requirements (net of earned interest on invested funds), the amount payable under each of the Project Construction Documents, allowances, contingencies, and pre -opening expenses. "Project Completion Date" means the later of (i) the date of Final Completion of all of the Project Improvements Work in accordance with all of the requirements of the Master Agreement and other transaction documents, (ii) payment in full of all Project Costs, and (iii) the Lease Commencement Date. "Project Construction Contract(s)" means the construction contract(s) approved by RSR and the City between the City or RSR and the Project Contractor for the construction of the Project Improvements, as the same may be amended, supplemented, modified, renewed, extended or replaced from time to time with the consent of the City and RSR. "Project Change Order Fund" shall mean a sum of money equal to $100,000.00. 24 "Project Change Orders" shall mean any changes in plans or specifications which are necessary after the performance of the Project Construction Contract is begun or if it is necessary to decrease or increase the quantity of work to be performed or of materials, equipment, or supplies to be furnished. The approval of Project Change Orders shall be in accordance with Section 252.048 Local Government Code. "Project Contract Sum" shall mean and refer to the "Contract Sum," as said term is used and defined in the Project Construction Contract. "Project Contractor" means the general contractor approved by the City. "Project Construction Documents" means any and all contracts, documents or other instruments entered into by or on behalf of the City or RSR for the performance of the Project Improvements Work, including, but not limited to, the construction contracts and the Architect's Contract, but excluding the Project Documents. "Project Costs" means all of the following costs incurred or to be incurred by the City in order for the City to fulfill its obligations under the Master Agreement, the Project Construction Documents, and cause Final Completion of the Project Improvements Work: (a) acquisition costs; (b) all amounts payable under any of the Project Construction Documents; (c) costs to obtain necessary easements or rights of way; (d) the following City development costs and fees: structural steel inspection fee, oversize fee, regional detention fee, and water meter fee; (e) legal costs; (f) costs for project management services; (g) all other costs incurred by the City and paid to third parties in accordance with the Master Agreement and Project Construction Documents to develop, construct, or furnish the Project including management fees and fees and expenses of architects, engineers, testing firms, accountants, attorneys, and other consultants necessary to complete the design, development, construction, and furnishing of the Project Improvements (Package B), including Project Change Orders; (h) all other costs in connection with the operation and maintenance of the Land prior to the Lease Commencement Date, including all remediation and abatement costs arising from removal of Hazardous Materials or addressing Environmental Conditions; and (i) all insurance premiums on all policies of insurance required to be carried by the City; provided however, that other costs incurred by the City in order to fulfill its aforesaid obligations, but not specifically enumerated herein shall be Project Costs subject to the approval of RSR, which approval shall not be unreasonably withheld, delayed or conditioned. "Project Fund" means the amount of money equal to the Project Contract Sum to complete the Project Improvements (Package B) plus the Project Change Order Fund. "Project Improvements" means the convention center complex, the parking improvements, all improvements thereto or comprising a part of any of the same and all appurtenances and amenities relating to any of the same, all as described more fully in the Project Construction Contract. Project Improvements are divided into the following two packages, which are further defined below: "Project Improvements (Package A)," and "Project Improvements (Package B)." 25 "Project Improvements (Package A)" means the following: Package Al Site grading including the installation of limited parking base, excavation and rough grading of the seating bowl and playing field area, and installation of the drilled, structural concrete piers. Package A2 Installation of the underground site utilities, including the fire loop, wastewater, storm drainage, 24 inch reinforced concrete pipe at road aprons, water service, electrical service, telephone service, gas service, parking and road base. "Project Improvements (Package B)" means the following: Package B1 Shop drawings and steel material for the structural steel framing. Package B2 All remaining work not described in Project Improvements (Package A), including receipt and erection of structural steel framing, foundations, construction and finish out of stadium and concessions, restrooms; total construction for the clubhouse, batting cage, conference center, commissary and team offices, and remainder of site improvements. "Project Improvements Work" means the design, development, construction, furnishing, and placement in service and Final Completion of the Project Improvements at and within the Land in accordance with the Master Agreement, the Project Submission Matters, all applicable Governmental Rules and the Project Plans. "Project Plans" means individually and collectively, the concept drawings, schematic drawings, design development drawings and detailed working drawings and specifications for the Project Improvements prepared by the Architect in the form approved by RSR and the City. "Project Savings" means the amount by which Project Costs are less than the amount of the Project Fund and shall include, without limitation, the amount of all reductions in the Project Contract Sum (after execution of the Project Construction Contract), and all other savings or reductions in the amounts payable by the City under any Construction Document. "Project Submission Matters" means each and all of the following, the issuance or completion thereof, and any changes to, or modifications of, any of the following: (a) The Project Budget and the Debt Plan; (b) The Project Improvements Construction Schedule; 26 (c) The Project Plans; (d) The Project Construction Contract; (e) Any Project Change Orders, the cost of which would exceed the Project Change Order Fund, or any other change order to which the Project Contractor may be entitled under the Project Construction Contract ; (f) Any of the following under the Project Construction Documents: (g) (i) Changes in scope or systems; (ii) Changes in quantity, kind, brand, manufacturer or quality of materials, finishes or equipment; (iii) Changes in schedule; (iv) Selection of, and/or changes in, allowance items; (v) Changes in overall appearance or amenities; and Equipment Leases; (h) Service Contracts; and (i) Any contract or agreement for inspection of the Project Improvements or other agreement the cost of which would constitute a Project Cost. "Project Term" shall have the meaning given to it in Section 3.1 of the Master Agreement. "Review and Approval or Consent Rights" shall have the meaning given to it in Section 17.3.1 of the Master Agreement. "Reviewing Party" shall have the meaning given to it in Section 17.3.1 of the Master Agreement. "RSR" means Ryan Sanders Ryan, Inc., a Texas corporation. "RSR's Contribution" means the sum of money equal to the difference between the Project Fund and the City's Contribution. "RSR Default" shall have the meaning given to it in Section 14.1.2 of the Master Agreement. 27 "RSR Representatives" shall have the meaning given to it in Section 2.2 of the Master Agreement. "Service Contract" means each and every contract or agreement with respect to the provision of services to the Leased Premises which will, or is intended to, survive the Lease Commencement Date including, without limitation, maintenance contracts, contracts for the provision of utility services, landscaping contracts, and refuse disposal contracts. "Submitting Party" shall have the meaning given to it in Section 17.3.1 of the Master Agreement. "Substantial Completion" shall have the meaning given to it in the Project Construction Contract. "Substantial Completion Date" shall mean the date on which Substantial Completion of all of the Project Improvements Work occurs. "Substantially Ail of the Leased Premises and Improvements" shall have the meaning given to it in Section 13.1.2 of the Master Agreement. "Transfer" shall have the meaning given to it in Section 15.1 of the Master Agreement. "Warranty Claim" shall have the meaning given to it in Section 8.6 of the Master Agreement. 28 APPENDIX B TO Master Agreement ADDRESSES FOR NOTICES (1) All notices to the City shall be sent to: City of Round Rock 221 E. Main St. Round Rock, Texas 78664 Attention: Robert L. Bennett, City Manager Facsimile Number: 512-218-7097 with copies being sent to: Stephan L. Sheets City Attorney 309 E. Main St. Round Rock, Texas 78664 Facsimile Number: 512-255-8986 (2) All notices to RSR shall be sent to: Ryan Sanders Ryan, Inc. P.O. Box 5309 Round Rock, Texas 78683 Attention: Reid Ryan Fax: (512) 255-1558 With copy to: Nolan Ryan 2900 South Gordon Alvin, Texas 77512 Fax: (281) 585-2238 EXHIBIT "A" TO Master Agreement PRE -FINANCIAL CLOSE PROJECT COSTS Category Schedule of Services cost 1 Engineering, surveying, testing $ 52,401 2 Legal services 82,970 3 Appraisal services 750 4 Agrarian services 1,000 5 Feasibility studies 40,500 6 Architectural services 75,000 7 Media services 20,075 8 Travel, transportation 500 9 Miscellaneous 26,804 $ 300,000 30 EXHIBIT "B" TO Master Agreement FINANCING RELATED PROJECT COSTS Deposit to Debt Service Reserve Fund Deposit to Capitalized Interest Fund Underwriter Discount Original Issue Discount Costs of Issuance (City) 31