easement agreement

8/7/2019 Easement Agreement

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K. David Lindner, Esq.

Squire, Sanders &Dempsey L.L.P.

40 North Central Avenue, Suite 2700

Phoenix, Arizona 85004~Cb· \'\I,p\l.\ 4 " ~

DECLARATION OF EASEMENTS

THIS DEC LARA TION OF EASEMENTS (this "Declaration" or "Agreement") is made

and entered into September 25, 2006, by and among COYOTE CENTER DEVELOPMENT,

LLC, a Delaware limited liability company (the "Declarant"), COYOTES HOCKEY, LLC, a

Delaware limited liability company (the "Team") and ARENA MANAGEMENT GROUP, LLC,

a Delaware limited liability company, acting in its capacity as "Arena Manager" under the

AMULA (as defined below) (the "Arena Manager").

RECITALS

A. Declarant holds title to the real property situated in the City of Glendale,

Maricopa County, Arizona, more particularly described on Exhibit "A" attached hereto (the

"Declarant Property").

B. The Declarant Property is part of a large, integrated mixed-use project which

when developed shall contain retail, entertainment, office, hotel and residential uses, commonly

referred to as Westgate (the "Project"). The Declarant Property is being developed pursuant to

rights granted to Declarant under the Mixed-Use Development Agreement, dated as of

November 29,2001 (as the same may be amended, modified, restated, supplemented, extended,

renewed, substituted, consolidated or replaced from time to time, the "MUDA"), by and among

the City of Glendale, an Arizona municipal corporation (the "City"), the Declarant and Glendale-

101 Development, LLC, a Delaware limited liability company ("Glendale-l01"). As of the date

hereof, Glendale-l O l has assigned all of its right, title, interest and obligations in, to and under

the MUDA to Declarant.

C. The Declarant Property is located within close proximity to a multi-purpose event

center (the "Arena") and other real property which is owned by the City and located on the real

property more particularly described on Exhibit "B" attached hereto (the "Arena Property").

D. Pursuant to that certain Arena Management, Use and Lease Agreement, dated as

of November 29, 2001 (as the same may be amended, modified, restated, supplemented,

extended, renewed, substituted, consolidated or replaced from time to time, the "AMULA"), byand among the City, the Arena Manager, the Team, Glendale-lOl, and Declarant, the Team

holds a leasehold interest and use and occupancy rights in certain portions of the Arena Property,

subject to certain limitations and conditions, and the Arena Manager holds certain use and

occupancy rights and is entitled to exercise certain other rights and is required to perform and

comply with certain obligations with respect to its duties as the manager of the Arena.

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E. Pursuant to that certain Parking Use License and Easement Agreement, dated asof the date hereof, which agreement has been or will be Recorded (as defined below) (as the

same may be amended, modified, restated, supplemented, extended, renewed, substituted,

consolidated or replaced from time to time, the "Parking Use License"), by and among the Teamand the Arena Manager, as licensees and grantees, and Declarant and Westgate Investments,LLC ("Westgate Investments"), as licensors and grantors, Declarant granted to the Team, theArena Manager and the Leasehold Estate Owner/Arena Manager Permittees (as defined below)certain exclusive parking rights and easements with respect to the real property described in suchParking Use License, which real property comprises a portion of the Declarant Propertydescribed in this Declaration.

F. Pursuant to that certain Agreement in Respect of Parking and Mixed-UseDevelopment Agreement, dated as of the date hereof, which agreement (or a memorandumthereot) has been or will be Recorded (as defined below) (as may be amended, modified,restated, supplemented, extended, renewed, substituted, consolidated or replaced from time totime, the "Parking Agreement"), by and among the Team, the Arena Manager, the Declarant,Westgate Investments, Glendale-101 and Arena Development, LLC, among other things, the

Declarant has made certain agreements affecting the Declarant Property, including withoutlimitation in respect of certain parking matters.

G. The rights and benefits accorded the Team and the Arena Manager under thisDeclaration are in addition to and not in lieu of the rights and benefits accorded the Team andArena Manager under the Parking Use License and the Parking Agreement.

• • Unofficial Document

H. The parties to this Declaration mtend that the Leasehold Estate Owner/ArenaManager Permittees attending Events (as defined in the AMULA) and Hockey Events (asdefined in the AMULA) shall be permitted (i) to have the non-exclusive right and easement toutilize the Private Thoroughfares (as defined below) now existing or hereafter constructed on the

Declarant Property for ingress and egress to and from Arena and Dedicated Thoroughfares (asdefined below) and to and from the parking areas now or hereafter located on the DeclarantProperty, (ii) to visit, shop, dine and attend other events at the Project as the Project is developed,and, (iii) to have the non-exclusive right and easement together with Declarant's Permittees (asdefined below) to utilize unreserved and unrestricted parking spaces for vehicles on theDeclarant Property subject, however, to the terms and conditions of this Declaration. Each of theparties hereto acknowledge it is in its best interest of each party that the Permittees (as definedbelow) have the joint and common right and easement to park in, on and around the Project,including the right and easement to park vehicles on a non-exclusive basis on the DeclarantProperty, subject to the terms and conditions of this Declaration.

NOW, THEREFORE, it is declared, on behalf of the Declarant, and for the benefit of theLeasehold Estate Owner (as defined below), and the Arena Manager, their respective successorsand permitted assigns, and the Leasehold Estate Owner/Arena Manager Permittees, that theDeclarant Property and all portions thereof are now held and from and after the date hereof willbe acquired, held, conveyed, hypothecated, encumbered, leased, used, occupied and improvedsubject to the following easements, covenants, conditions, restrictions, reservations, andservitudes, all of which are declared to be in furtherance of a plan for the benefit and use andenjoyment of the Project as follows:

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AGREEMENT

1. DEFINITIONS. When used in this Agreement, the following capitalized terms have the

following meanings:

1.1 "Arena Manager" shall have the meaning set forth in the preamble to this

Agreement and shall include, without limitation, any Replacement Arena Manager (as defined in

the AMULA), any Arena Sub-Manager (as defined in the AMULA) and any Person now or

hereafter acting in the capacity as the "Arena Manager" under the AMULA and any successor or

permitted assign of Arena Manager.

1.2 "Arena Manager Users Rights" shall mean all rights, benefits and privileges

(including, without limitation, use and occupancy rights in respect of the Arena) granted to the

Arena Manager, acting in its capacity as the "Arena Manager", "Arena Sub-Manager" or

"Replacement Arena Manager" of the Arena, necessary to or desirable for the performance of its

obligations and duties as the "Arena Manager", "Arena Sub-Manager" or "Replacement Arena

Manager" (as the case may be) pursuant to the AMULA.

1.3 "CCRs" shall mean, collectively, (i) the Master Declaration of Easements,

Covenants, Conditions and Restrictions for Westgate, dated as of January 30, 2006, by Declarant

and ECD, Recorded as 20060172003 on February 6, 2006, as amended and supplemented, (ii)

the Common Operation and Reciprocal Easement Agreement for the Destination Retail District

at Westgate, dated as of February 15, 2006, by Declarant, Recorded as 20060227762 on

February 17, 2006, as amended and supplemented, (iii) the Common Operation and Reciprocal

Easement Agreement for the Village Retailu"Ol~~I'I\!ltat Westgate, dated as of February 15, 2006,

by Declarant, Recorded as 20060227761 on February 17, 2006, as amended and supplemented,

and (iv) the Common Operation and Reciprocal Easement Agreement for the Entertainment

District of Westgate, dated as of February 15, 2006, by ECD and Declarant, Recorded as

20060227760 on February 17, 2006, as amended and supplemented.

1.4 "Common Areas" shall have the meaning ascribed thereto contained in each of

the CCRs.

1.5 "Declarant" shall mean Coyote Center Development, LLC, a Delaware limited

liability company, and the assignee of the Declarant's rights and powers under this Declaration

pursuant to a Recorded instrument reflecting such assignment of rights as required by the

provisions of Section 4.14, or such successor as contemplated pursuant to the terms of Section

4.14.

1.6 "Declarant's Permittees" shall mean all owners, tenants and occupants of parcels

within the Project and their respective patrons, customers, invitees, contractors, concessionaires,vendors and service providers, other than the Leasehold Estate Owner! Arena Manager

Permittees.

1.7 "Dedicated Thoroughfares" shall mean any streets, roads, passageways,

driveways, curb cuts, bridges, tunnels, sidewalks or rights of way which are dedicated to or

owned by the City or other governmental authority lying within or adjacent to the Project or

Declarant Property.

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1.8 "ECD" shall mean Entertainment Center Development, LLC, a Delaware limited

liability company.

1.9 "Leasehold Estate" shall mean the leasehold created and granted to and for the

benefit of the Team, its successors and assignees under the AMULA.

1.10 "Leasehold Estate Owner" shall mean a holder of the Leasehold Estate, which as

of the date of this Declaration, is the Team, and its successors and permitted assigns.

1.11 "Leasehold Estate Ownerl Arena Manager Permittees" shall mean the Leasehold

Estate Owner, the Arena Manager, their respective licensees (and each of their respective

invitees, ticket holders of any event at the Arena, spectators of any event at the Arena,

employees, lessees, agents, contractors, concessionaires, vendors, customers and service

providers).

1.12 "Owner" or "Owners" shall mean (i) any Person who holds fee title to (or a

ground lessee's interest in) a portion of the Declarant Property and whose interest is Recorded,

(ii) any Person who is the lessee (or sublessee) of a portion of the Declarant Property pursuant toa lease with Declarant or an Owner and whose interest is Recorded, and (iii) their respective

successors and assigns.

1.13 "Parking Areas" shall have the meaning set forth 10 Section 2.1 of this

Declaration.

1.14 "Permittees" shall mean the U ~ r e i & g ~ u i ' l e ~ l JEstate Owner! Arena Manager Permittees

and the Declarant's Permittees, together.

1.15 "Person" shall mean any individual, general partnership, limited partnership, firm,

association, corporation, limited liability company, trust or any other form of business or

government entity.

1.16 "Private Thoroughfares" shall mean all streets, roads, passageways, driveways,

curb cuts, bridges, tunnels, sidewalks and rights of way, now or hereinafter constructed, replaced

or relocated within the Declarant Property, together with all accompanying surface

improvements, which are intended or reserved by Declarant for the common use of Declarant's

Permittees, as the same may be modified, relocated or reconfigured from time to time, excluding,

however, Dedicated Thoroughfares. As of the date of this Declaration, Private Thoroughfares

include, without limitation, Brandon Drive, Hanna Lane, Westgate Boulevard, J C Lane, White

Out Way, Hockey Way, Gail Lane, and a portion of Coyotes Boulevard, and any roads or access

areas (whether paved or unpaved) which are on the Declarant Property, or benefit the Declarant

Property which is subject to the Parking Use License the Declarant Property, and are located to

the West of9Sth Avenue.

1.17 "Recorded" shall mean the recordation of an instrument or document in the

Official Records of Maricopa County, Arizona.

1.18 "Taxes" shall have the meaning set forth in Section 2.7 of this Declaration.

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2. EASEMENTS.

2.1 Grant of Non-Exclusive Parking and Access Easements. Subject to any

conditions, limitations or reservations contained herein and the lien of any other declarations of

covenants, conditions, restrictions and easements Recorded prior to this Declaration, including,

without limitation, the Parking Use License and the Parking Agreement, the Declarant hereby

declares, establishes and grants for the benefit of, and as an appurtenance to, the Leasehold

Estate and the Arena Manager Users Rights for the use and benefit of the Leasehold Estate

Owner/Arena Manager Permittees, (i) a non-exclusive and irrevocable, perpetual right-of-way,

easement and right of and for vehicular and pedestrian traffic and passage by motor vehicles and

pedestrians for access, circulation, ingress and egress over, under, upon and across the Private

Thoroughfares, as presently or hereafter constructed, so as to provide for the passage of motor

vehicles and pedestrians to and from all portions of the Parking Areas, the Dedicated

Thoroughfares, the Private Thoroughfares, and the Arena, (ii) a non-exclusive and irrevocable,

perpetual easement and right for parking motor vehicles on parking spaces (whether surface or

garage spaces) created by Declarant and existing from time to time on the Declarant Property,

other than those parking spaces which are reserved or restricted to the exclusive use of a

particular Owner and therefore are not generally available to Declarant's Permittees (the

"Parking Areas"), (iii) the non-exclusive and irrevocable, perpetual easement over the Common

Areas for the purpose of parking and vehicular and pedestrian access, ingress and egress as

provided in the applicable CCRs, and (iv) the non-exclusive and perpetual easement and right to

visit, shop, dine and attend other events at the Project as the Project is developed, each subject

however to temporary closures or temporary interruption of vehicular and pedestrian traffic on

streets, parking lots or roadways which areU';;ffi~;jDo~U;;;';;;'-yto accommodate construction, repairs and

other temporary, short-term, "closed street" situations, including Project special and holiday

events. Any temporary closure or temporary interruption shall be for as short a period as may be

required to accomplish the intended purpose and shall be limited to those areas required to

accomplish the intended purpose in a safe and efficient manner. To the extent that any closure is

the result of planned activities on or that would affect Private Thoroughfares located east of

Hockey Way through 93rd Avenue andlor west of White Out Way through ss" Avenue, other

than to facilitate unplanned or emergency work, Declarant shall give the Leasehold Estate Owner

and the Arena Manager reasonable prior notice of the planned closure and its expected duration.

Parking Areas shall include, without limitation, any parking spaces made available by Declarant

from time to time to Declarant's Permittees on a non-exclusive basis as among such Declarant's

Permittees. While the Declarant shall have the right to reserve certain parking areas as provided

in Section 2.2 below for the exclusive use of particular Declarant's Permittees, the Declarant

may not reserve or restrict the use of any parking areas or Common Areas on the Declarant

Property to all or substantially all of the Declarant's Permittees to the exclusion of the Leasehold

Estate Owner/Arena Manager Permittees. The Declarant shall afford the Leasehold Estate

Owner/Arena Manager Permittees at least the same easements, rights and benefits in respect ofthe Private Thoroughfares, Common Areas and Parking Areas as the Declarant affords to

Declarant's Permittees. With respect to the CCRs, Declarant shall in all respects treat the

Leasehold Estate Owner/Arena Manager Permittees as "Permittees" (as such term is defined in

each of the CCRs). Under the CCRs, no "Permittee" thereunder is a third party beneficiary of

any of the provisions of the CCRs; provided, however, the Declarant by this Declaration intends

to afford the Leasehold Estate Owner/Arena Manager Permittees all of the rights, privileges and

benefits in respect of parking and access rights thereunder as effectively as if such "Permittees"

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were an "Owner" under the CCRs. Accordingly, the Declarant agrees to use commercially

reasonable and diligent efforts to cause each Owner and its Permittees (each as defined in the

applicable eCR) to perform its respective obligations under the CCRs for the benefit of the

Leasehold Estate Owner/Arena Manager Permittees and. to enforce, for the benefit of the

Leasehold Estate Owner/Arena Manager Permittees, the terms of the CCR in the event of a

default by any such party thereunder. Further, upon the request of the Leasehold Estate Ownerand/or the Arena Manager, the Declarant shall use commercially reasonable efforts to cooperate

with Leasehold Estate Owner and/or the Arena Manager in its efforts to cause each Owner and

its Permittees (each as defined in the applicable CCR) to perform its obligations under the CCRs

for the benefit of Leasehold Estate Owner/Arena Manager Permittees.

2.2 Parking. All motor vehicles of the Permittees utilizing or occupying parking

spaces pursuant to this Agreement shall be parked only in available parking structures and/or

parking spaces and shall further be parked within lines and stripes intended for parking purposes

and shall not be parked nor otherwise used for ingress and egress in areas designated as exclusive

parking for, or otherwise "reserved" by or for, a particular Owner from time to time. Leasehold

Estate Owner/Arena Manager Permittees shall only use parking spaces within the Declarant

Property for temporary parking (which shall, at a minimum, mean a reasonable period of time

before, during and a reasonable period of time after any event at the Arena). Notwithstanding

the foregoing, Leasehold Estate Owner/Arena Manager Permittees shall not have the right to use

parking spaces on the Declarant Property which are reserved, assigned to the exclusive use of a

particular Owner or a particular Declarant's Permittee, nor for the storage of vehicles, overnight

vehicle parking, repairing, servicing or working on any vehicles, or any long-term parking of any

vehicles. The Declarant shall exercise an0nOffi~i;fo7u;;;;t-its rights to exclude the Leasehold Estate

Owner/Arena Manager Permittees and the Declarant's Permittees from any such exclusive,

assigned or reserved parking areas uniformly and on a non-discriminatory basis.

Notwithstanding anything to the contrary in this Declaration, at all times during the term of this

Declaration, Declarant shall ensure that at least 2,000 parking spaces are (i) located on the

Declarant's Property within the area that has Maryland Avenue as the southernmost boundary,93rd Avenue as the easternmost boundary, 95th Avenue as the westernmost boundary and

Glendale Avenue as the northernmost boundary and (ii) available for non-exclusive use by the

Leasehold Estate Owner/Arena Manager Permittees in accordance with the terms set forth in this

Declaration; provided, however, that with respect to real property owned by ECD, this shall not

constitute a mortgage, deed of trust, deed to secure debt, pledge, security interest, encumbrance,

lien, charge or claim of any kind against such ECD real property.

2.3 Further Easements. Subject to the terms and conditions of the Parking License

and Parking Agreement, Declarant reserves the right to discontinue, relocate or reconfigure all or

any parking spaces or Private Thoroughfares now or hereafter existing on the Declarant Property

and to grant further easements and rights to any of the parking spaces now or in the futurelocated on the Declarant Property, and over, under, upon or across the Declarant Property,

including, without limitation, the Private Thoroughfares, which Declarant reasonably determines

to be necessary or advisable for the use, benefit or enjoyment of the Project or to comply with

requirements of law or Declarant's insurance underwriters or for the Owners and the Declarant's

Permittees safe and efficient operation of any portion of the Project. Without limiting the

foregoing but subject to the terms and conditions of the Parking License and Parking Agreement,

Declarant reserves and shall continue to have the right to grant easements for access to and from

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other portions of the Project via pedestrian bridges, tunnels or other facilities over or under

Private Thoroughfares and/or Dedicated Thoroughfares, and reserves the right to grant easements

and licenses for exclusive and other non-exclusive parking use over the Declarant Property for

the benefit of particular Owners and particular Owner's patrons, customers, invitees, contractors,

concessionaires, vendors and service providers. Notwithstanding the foregoing, the Declarant

shall not exercise its reserved rights under this Section 2.3 in a manner that would unreasonably

interfere with the Leasehold Estate Owner/Arena Manager Permittees' use and enjoyment of the

rights and easements granted herein and intended to be afforded by this Declaration or in any

manner that discriminates between the Leasehold Estate Owner/Arena Manager Permittees and

the Declarant's Permittees, or which would diminish the number of parking spaces available on

the Parking Areas for the non-exclusive use of Leasehold Estate Owner/Arena Manager

Permittees below that required by Section 2.2 hereof.

2,4 Reasonable Use of Easements. The easements established and granted herein and

the rights reserved to Declarant herein shall be used and enjoyed solely by the Declarant and the

Permittees in a reasonable manner, and in any event, in such a manner as not to unreasonably

interfere with, obstruct or delay the conduct and operations of the business of the Declarant, any

other Owner, or the Permittees at any time or any development or construction ofthe Project.

2.5 No Implied Easements. Nothing contained in this Declaration shall be deemed to

create any implied easements, rights or licenses not otherwise expressly provided for herein.

2.6 Conflicts. Nothing contained in this Declaration shall limit or diminish the

easements, rights and benefits granted in the Parkinz Use License or the Parking Agreement. If• • Unofficial Document

any provision of this Declaration conflicts or is inconsistent with any provision of the Parking

Use License, the provisions of the Parking Use License shall control. If any provision of this

Declaration conflicts or is inconsistent with any provision of the Parking Agreement, the

provisions of the Parking Agreement shall control.

2.7 Maintenance; Taxes. The Declarant shall construct, maintain and repair the

Private Thoroughfares and Parking Areas in good condition, order and repair. The Declarant

shall pay all Taxes with respect to the Declarant Property before the same become delinquent.

"Taxes" shall mean all real property taxes, possessory interest taxes, government property lease

excise taxes, personal property taxes assessed against the buildings and improvements within the

Declarant Property, assessments, whether arising from any improvement or special taxing

district, or otherwise, excises, levies, license and permit fees, and all other charges of whatsoever

kind and nature and whether any of the foregoing be general or special, ordinary or

extraordinary, foreseen or unforeseen, which at any time during may be imposed upon the

Declarant Property and/or the buildings and improvements thereon. The rights and easements

granted for the benefit of the Leasehold Estate Owner/Arena Manager Permittees shall bewithout any fee, cost or expense to the Leasehold Estate Owner or the Arena Manager, except as

expressly provided in Section 3.

3. INSURANCE. Each of Declarant and the Leasehold Estate Owner agrees to provide and

maintain (or, in the case of the Leasehold Estate Owner, to cause the Arena Manager or its

licensee to provide and maintain) one or more policies of commercial general liability insurance

insuring against claims for bodily injury, personal injury, death or property damage, occurring on

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or about such easement areas which are subject to use and enjoyment by the applicable party's

Permittees hereunder, with combined single limit coverage of not less than Five Million Dollars

($5,000,000), or such higher amounts of coverage as Declarant and the Leasehold Estate Owner

may from time to time mutually designate (but without obligation to do so) based on insurance

coverage carried by reasonable and prudent owners of like property in the State of Arizona. Any

insurance required under this Declaration may be brought within the coverage of so-calledblanket or master policies of insurance, provided that such blanket or master policies contain a

so-called "per location aggregate" endorsement (or equivalent) preventing the coverages required

by this Declaration from being reduced or diminished by reason of the use of such policies. All

insurance must be issued by insurance companies authorized to do business in the State of

Arizona having a rating in the then most current edition of Best's Key Rating Guide of A:X or

better, must be written on an occurrence basis and must include coverage for contractual liability

and broad form property damage.

4. REMEDIES.

4.1 All Available Remedies. In the event of a breach (or threatened breach) by

Declarant of any of the terms or provisions hereof, Leasehold Estate Owner and Arena Managershall be entitled forthwith to full and adequate relief by injunction and/or all such other available

legal and equitable remedies from the consequences of such breach, including payment of any

amounts due and/or specific performance.

4.2 Rem(:dies Cumulative. The remedies specified herein shall be cumulative and in

addition to all other remedies permitted at 1~~cQ~o,iu~enrquity.

4.3 No Termination for Breach. Notwithstanding anything to the contrary herein

contained, no breach (whether or not material) hereunder shall entitle Declarant to cancel,

rescind, or otherwise terminate this Declaration.

5. MISCELLANEOUS

5.1 Covenants to Run with Land. It is intended that each of the easements, covenants,

conditions, restrictions, rights and obligations set forth herein shall run with the land and create

equitable servitudes in favor of the Leasehold Estate and the Arena Manager Users Rights, shall

bind any Person now or hereafter acquiring any right, title or interest in and to the Declarant

Property and shall inure to the benefit of the respective parties and their successors, assigns, heirs

and personal representatives and any subsequent Leasehold Estate Owner and any subsequent

holder of the Arena Manager Users Rights; however, no easement, covenant, condition,

restriction or other right or benefit granted or accruing hereunder shall be assignable, transferable

or otherwise delegable to or for the benefit of any other real property or any right, title or interest

therein (other than the Leasehold Estate and the Arena Manager Users Rights).

5.2 Term. The covenants, conditions, restrictions and easements contained in this

Declaration shall be effective commencing on the date this Declaration is Recorded, and shall

remain in full force and effect until the earlier of (i) the expiration or earlier termination of the

AMULA (or any substitute or replacement agreement therefor as long as (a) the Team, the City

and the Arena Manager (or their respective successors and permitted assigns) are the only parties

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thereto, or (b) the Team (or its successor or permitted assignee) is the principal obligor under

such substitute or replacement agreement, and provided that the substitute or replacement

agreement relates to the Arena and no other arena or stadium, or (ii) a period of ninety-nine (99)

years from and after said date of Recording, unless this Declaration is modified, amended,

cancelled or terminated by the written consent of Declarant, the Leasehold Estate Owner and the

Arena Manager.

5.3 No Merger. The ownership of the entirety of the Project by the same Person shall

not effect a termination of this Declaration. In addition, the ownership of the fee interest and the

leasehold estate in and to an entire Declarant Property (or the ownership of the Leasehold Estate

and/or Arena Manager User Rights and all or any portion of the Declarant Property) by the same

Person shall not affect a termination of this Declaration.

5.4 Prescription Easement/Adverse Possession. No title, easement or use pertaining

to the Declarant Property or any portion thereof may be established by prescription or adverse

possession, the statute of limitations for such purposes being expressly hereby waived.

5.5 No Third Party Beneficiary. The provisions of this Declaration are solely for the

benefit of Declarant, the Arena Manager, the Leasehold Estate Owner and the holder of the

Arena Manager Users Rights and shall not be for the benefit of or enforceable by any other

Person. No Permittee shall be deemed to be a third party beneficiary of any provisions contained

in this Declaration for any purpose.

5.6 Amendment. This Declarati~~Ci~o~u~Jlfeterminated, modified or amended only by

the written consent of Declarant, the Leasehold Estate Owner and the Arena Manager. Any such

termination, modification or amendment of this DecIaration shall be evidenced by a document

that has been fully executed and acknowledged by Declarant, the Leasehold Estate Owner and

the Arena Manager and Recorded.

5.7 Notices. All notices under this Declaration shall be in writing and delivered

personally, delivered by a reputable overnight courier service, mailed by registered or certified

mail, postage prepaid, return receipt requested, or sent by facsimile transmission (provided that

any notices delivered by facsimile transmission shall be followed by a confirming hard copy

delivered in any other manner for providing notices described in the foregoing) to the parties at

the following addresses:

If to Team: Coyotes Hockey, LLC

5800 West Glenn Drive, Suite 350

Glendale, Arizona 85301

Attention: Mr. Jeff Shumway, Chief Executive

Officer, and Mr. Douglas Moss, President,

Chief Operating Officer

Fax: (623) 463-8877

With a copy to: Coyotes Hockey, LLC

9400 West Maryland Avenue


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Attention: Mr. Steve Weinreich, General Counsel

Fax: (623) 772-3201

If to Arena Manager: Arena Management Group, LLC

5800 West Glenn Drive, Suite 350

Glendale, Arizona 85301Attention: Mr. Jeff Shumway, Chief Executive

Officer, and Mr. Douglas Moss, President,

Chief Operating Officer

Fax: (623) 463-8800

With a copy to: Arena Management Group, LLC

9400 West Maryland Avenue


Attention: Mr. Steve Weinreich, General Counsel

Fax: (623) 772-3201

If to Declarant: Coyote Center Development, LLC

4040 East Camelback Road, Suite 250

Phoenix, Arizona 85018

Attention: Mr. Steven Ellman

Fax: (602) 840-8101

With a copy to: Un<5c.e ' 3o ~~~ t:enter Development, LLC

4040 East Camelback Road, Suite 250

Phoenix, Arizona 85018

Attention: Mr. Robert Kaufman, General Counsel

Fax: (602) 840-8101

or to such other address as may be designated by the respective parties in writing from

time to time.

5.8 Time of Essence. Time is of the essence of each and every provision of this

Declaration.

5.9 No Waiver. No waiver of any default of any obligation by any party hereto shall

be implied from any omission by the other party to take any action with respect to such default.

5.10 Further Assurances. Each party hereby agrees to perform such further acts and to

execute and deliver such additional agreements, documents, acknowledgements and instrumentsas the other party may reasonably require to consummate, evidence, confirm or carry out the

transactions contemplated by this Declaration.

5.11 Choice of Law. This Declaration is made and is to be performed in the State of

Arizona and shall be governed by the internal, substantive laws of the State of Arizona without

regard to any conflict of laws or principles.

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5.12 Relationship of Parties. No partnership, joint venture or other business

relationship is established between the parties to this Declaration. No party to this Declaration

shall be liable for any acts, omissions or negligence on the part of the other party or its respective

Permittees resulting in either personal injury or property damages to any Person.

5.13 Severability. If any provision contained herein shall be held to be invalid or to be

unenforceable or not to run with the land, such holding shall not affect the validity or

enforceability of the remainder of this Declaration. In the event the validity or enforceability of

any provision of this Declaration is held to be dependent upon the existence of a specific legal

description, the parties agree to promptly cause such legal description to be prepared.

5.14 Assignment of Declarant's Rights. By Recorded instrument, Declarant may

assign (and cause the assignee to assume) all of its rights, title and interests and obligations as

"Declarant", to any other Person, provided that such assignment (and assumption) is signed by

both assignor and assignee. No conveyance by Declarant of any parcel of the Declarant Property

shall result in an assignment of Declarant's rights, titles and interests as "Declarant" in absence

of an express provision to that effect. No Person may be the Declarant unless such Person is an

Owner. No succeeding Declarant may terminate, rescind or revoke any easements, rights or

consents previously granted by Declarant to a Person, without the express prior written consent

of the Leasehold Estate Owner and the Arena Manager.

5.15 Successors and Assigns. The Team may not assign its rights or delegate its

obligations under this Declaration to any Person other than a Leasehold Estate Owner or the

Arena Manager, without the prior written ~ n ' , 1 ' J a f 6 0 ~ ! e n t n fDeclarant. The Arena Manager may not

assign its rights or delegate its obligations under this Declaration to any Person other than a

Replacement Arena Manager (as defined in the AMULA), any Arena Sub-Manager (as defined

in the AMULA) and/or any Person now or hereafter acting in the capacity as the "Arena

Manager" under the AMULA. In no event shall the Arena Manager or the Team assign any of

their respective rights or interest under this Declaration to the City; provided. however, if theCity succeeds to or assumes the position of the "Arena Manager" pursuant to the terms of the

AMULA, the Arena Manager may assign its rights and obligations to the City in its capacity as

"Arena Manager" under the AMULA. Without the consent of the Declarant, each of the

Leasehold Estate Owner and the Arena Manager may grant a security interest in, or collaterally

assign, its rights under this Declaration to any of its lenders as security. Except as provided in

this Agreement to the contrary, all of the terms, covenants and conditions of this Agreement shall

be binding upon, and shall inure to the benefit of, each of the parties hereto and their respective

successors and assigns.

5.16 Entire Agreement. This Declaration contains the complete understanding and

agreement of the Declarant with respect to all matters referred to herein. and all prior

representations, negotiations, and understandings are superseded hereby.

5.17 Counterparts. This Agreement may be executed in counterparts, each of which

shall be deemed to be an original, but all of which together shall constitute one and the same

instruments.

11PHOENIXl372197.11



20061261681

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the

day and year first above "Mitten.

DECLARANT

COYOTE CENTER DEVELOPMENT, LLC, a Delaware

limited liability company

By: Ellman Management Group, Inc., an Arizona

corporation, its Mana ...v....__~

STATE OF ARlZONA )

) ssCounty of Maricopa )

On this ~ day of Sep~b ec , 2006, before me, the undersigned officer,

personally appeared Tim lJ J r-LQ "'{ , who acknowledged

him to be the ~ V e of Ellman Management Group, Inc., and executed this

instrument, in the capacities shown above on behalf of COYOTE CENTER DEVELOPMENT,

LLC, a Delaware limited liability company, ~J~Vi~lu!elLIlowpersonally/whose identity was proven

on the basis of satisfactory evidence to be the person whose name is subscribed to this

instrument, and he, in such capacity, being authorized so to do, executed the foregoing

instrument for the purposes therein contained on behalf of that entity.

INWITNESS WHEREOF, I hereunto set my hand and official seal.

NOTARY SEAL:

NotaryPub7 c

OFFICIAL SEI\L IAGNES L. TAYLOR

N OT AR Y P U BL IC - S TA TE , O F A RI ZO NA

MAR ICOPA COUNTY

My Comm is s io n E x p ir e s Ap ri l 0 6 , 2 0 0 8 j-- __ ·'I'l'!::.OCc-::7'!':I'~~: ....... --~, __ c : ·

PHOEN IX l372197 S-1



20061261681

TEAM

COYOTES HOCKEY, LLC, a Delaware limited liability

: ~ p a ~ n Y ~ ?-.

Name: J e : h U I I 1 W a Y ~Title: Chairman an;~~--------

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

"""~~S.\~

Notary Public

STATE OF ARIZONA )

) S5

County of Maricopa )

On this.z.r·day3f & 1 £ , ~ J t , 2006, before me, the undersigned officer,personally appeared . . . J e f f ~ _~P\\..tl<» , who acknowledged

him to be the ( h . e M rMOb ~ Le. D of Coyotes Hockey, LLC, and executed this instrument,in the capacities shown above on behalf of COYOTES HOCKEY, LLC, a Delaware limited

liability company, whom I know personally/whose identity was proven on the basis of

satisfactory evidence to be the person whose name is subscribed to this instrument; and he, in

such capacity, being authorized so to do, executed the foregoing instrument for the purposestherein contained on behalf of that entity.

NOTARY SEAL:

i)

N o ta . r 'j P U b l iC . S t a t e o f A r iz o n aM a n c o p a County

P a t n c l B S V a n B e n s c h o t e nM y C o m m i s s io n E x p ir e s

0 1 / 2 9 1 2 0 1 0

PHOENIXI372197 S-2



20061261681

IN W IT N ESS WHE REO F, I hereunto set m y hand and o ff icial seal.

" " " ~ ~ ( . J a J 1 ~No t ar y P u bl ic

A REN A M A N A GER

A REN A M A N A GEM E NT GRO UP , L LC . a Delaware

lim ited liability co mpany ~

~7By: ~

Name:~~ = = - -Title: C hairman and C EO

STA TE O F A RIZO N A )

) ssC ounty o f M ar ico pa )

O n this~ " day o f ~ e . ( - \ e ,M lR .lL , 2006, befo re m e, the under signed o ff icer ,

per so nally appeared ;:) < O i ? f f A . S 'f \ lW \ u _ ) ~ , who a cknow l edged

him to be the Ch&'\ iM4.h 1 : \Lf.l>

o f A r en~ anagement G roup , L L C , a Delaware lim itedliability co mpany, and executed this instrum ent, in the capacities sho wn abo ve o n behalf o f

ARENA M A N AGEM EN T GROUP , L L C , a Del aw ar e l im ite d l ia bil ity c omp an y, w h om I know

per so nally/w ho se identity w as pro ven o n the basis o f satisfacto ry evidence to be the perso n

w ho se nam e is subscr ibed to this instru ment, and he, in su ch capacity, being autho rized so to do ,

ex ecu ted th e f or eg oin g in str um en t f or th e p ur po ses th er ein co ntain ed o n b eh alf o f th at en tity.

N O TA RY SEA L :

N o t a r y P u b l i c S t a te o f A r iz o naM a r i c o pa C o un ty

P a tr iC ia S V a n B e n s c h o t e n

M y C o m m i ss io n E x p i r e s

0 1 / 2 9 1 2 0 1 0

PHOENIx/372197 S-3



20061261681

EXHIBIT A

DECLARANT PROPERTY (BURDENED PROPERTY)

PARCEL NO I:

LOTS lA, 2A, 2B, 3A, 3B, 3C, 5A, 5B, 5D, 5E, 5F, 12A, 12B, 12D, AND 12G, OF FINAL PLAT FORWESTGATE, ACCORDING TO THE PLAT OF RECORD IN THE OFFICE OF THE COUNTYRECORDER FOR MARICOPA COUNTY, ARIZONA, RECORDED IN BOOK 745 OF MAPS, PAGE 14 OFOFFICIAL RECORDS.

PARCEL NO 2:

PARCEL B, OF MINOR LAND DIVISION MAP, ACCORDING TO THE PLAT OF RECORD IN THEOFFICE OF THE COUNTY RECORDER FOR MARICOPA COUNTY, ARIZONA, RECORDED INBOOK 795, PAGE 23 OF OFFICIAL RECORDS.

EXCEPTING THEREFROM THAT PORTION CONVEYED FOR PUBLIC RIGHT OF WAY BY QUITCLAIM DEED RECORDED NOVEMBER 29,2005 AS 2005·1800413 OF OFFICIAL RECORDS.

PARCEL NO.3:

LOT 6B·I AND LOT 6B·2, OF MINOR LAND DIVISION LOT SPLIT, ACCORDING TO THE PLAT OFRECORD IN THE OFFICE OF THE COUNTY RECORDER FOR MARICOPA COUNTY, ARIZONA,RECORDED IN BOOK 812, PAGE 40 OF OFFICIAL RECORDS.

Unofficial Document

PARCEL NO.4:

LOT 12F·I AND LOT 12H·I, OF MINOR LAND DIVISION LOT LINE ADJUSTMENT, ACCORDINGTO THE PLAT OF RECORD IN THE OFFICE OF THE COUNTY RECORDER FOR MARlCOPA

COUNTY, ARIZONA, RECORDED IN BOOK 812, PAGE 41 OF OFFICIAL RECORDS.

PARCEL NO.5:

ALL OF LOTS 13, 14B AND 15, AND LOT 8 EXCEPT THE EASTERLY 13 FEET THEREOF, OFFINAL PLAT FOR WESTGATE, ACCORDING TO THE PLAT OF RECORD IN THE OFFICE OF THECOUNTY RECORDER FOR MARICOPA COUNTY, ARIZONA, RECORDED IN BOOK 745, PAGE 14OF OFFICIAL RECORDS.

PARCEL NO.6:

LOT 8·1 .OF MINOR LAND DIVISION LOT LINE ADJUSTMENT, FOR LOT 7 AND 8 OFWESTGATE, ACCORDING TO THE PLAT OF RECORD IN THE OFFICE OF THE COUNTYRECORDER OF MARICOPA COUNTY, ARIZONA, RECORDED IN BOOK 812 OF MAPS, PAGE

43.

PARCEL NO.7:

NON·EXCLUSIVE EASEMENTS FOR DRAINAGE, SEWER, WATER LINES, ENCROACHMENTS,SIGNAGE, DRIVEWAYS, PEDESTRIAN AND VEHICULAR ACCESS, INGRESS AND EGRESS OVERROADWAYS, AND WALKWAYS; UTILITY AND UTILITY LINES AND PARKING AS CREATED BYTHAT CERTAIN DOCUMENT ENTITLED MASTER DECLARATION OF EASEMENTS,COVENANTS, CONDITIONS AND RESTRICTIONS FOR WESTGATE, RECORDED FEBRUARY 6,

A-IP HO EN IX l3 72 197 .1 1



20061261681

2006, AS INSTRUMENT NO. 2006-172003, AS AMENDED, IN THE OFFICIAL RECORDS OF

MARICOPA COUNTY, ARIZONA.

PARCEL NO.8:

NON-EXCLUSIVE EASEMENTS FOR DRIVEWAYS, PEDESTRIAN AND VEHICULAR ACCESS,

INGRESS AND EGRESS OVER ROADWAYS, DRIVEWAYS, AND WALKWAYS; UTILITY AND

UTILITY LINES; PARKING IN THE COMMON AREAS, AS SUCH TERM IS DEFINED IN AND

CREATED BY THAT CERT AIN DOCUMENT ENTITLED COVENANTS, CONDITIONS AND

RESTRICTIONS, COMMON OPERATION AND RECIPROCAL EASEMENT AGREEMENT FOR THE

ENTERTAINMENT DISTRICT, RECORDED FEBRUARY 17, 2006 AS INSTRUMENT NO. 2006-

227760,IN THE OFFICIAL RECORDS OF MARICOPA COUNTY, ARIZONA.

PARCEL NO.9:



UTILITY LINES; PARKING IN THE COMMON AREAS, AS SUCH TERM IS DEFINED IN AND

CREATED BY THAT CERTAIN DOCUMENT ENTITLED COVENANTS, CONDITIONS AND

RESTRICTIONS, COMMON OPERATION AND RECIPROCAL EASEMENT AGREEMENT FOR THEVILLAGE RETAIN DISTRICT, RECORDED FEBRUARY 17, 2006 AS INSTRUMENT NO. 2006-

227761, IN THE OFFICIAL RECORDS OF MARICOPA COUNTY, ARIZONA.

PARCEL NO. 10:



UTILITY LINES; PARKING IN THE COMM~r~ia'~c~~Etn.S, AS SUCH TERM IS DEFINED IN AND

CREATED BY THAT CERTAIN DOCUMENT ENTITLED COVENANTS, CONDITIONS AND

RESTRICTIONS, COMMON OPERATION AND RECIPROCAL EASEMENT AGREEMENT FOR

DESTINATION RETAIL DISTRICT, RECORDED FEBRUARY 17,2006 AS INSTRUMENT NO. 2006-

227762, IN THE OFFICIAL RECORDS OF MARICOPA COUNTY, ARIZONA.

PARCEL NO. 11:

A NON-EXCLUSIVE PERPETUAL EASEMENT FOR INGRESS AND EGRESS BY VEHICULAR AND

PEDESTRIAN TRAFFIC OVER, UPON AND ACROSS A PORTION OF A ROAD AND DRIVEWAY, AS

CREATED BY A DOCUMENT ENTITLED DRIVEWAY EASEMENT AGREEMENT, RECORDED

MAY 16,2006, AS INSTRUMENT NO. 2006-661876, IN THE OFFICIAL RECORDS OF MARICOPA

COUNTY, ARIZONA.

A-2

P HO EN lX i3 72 197.1 1



20061261681

EXHIBIT B

ARENA PROPERTY (BENEFITED PROPERTY)

LOT 9 OF FINAL PLAT FOR WESTGATE, ACCORDING TO THE PLAT OF RECORD INTHE OFFICE OF THE COUNTY RECORDER FOR MARICOPA COUNTY, ARIZONA,

RECORDED IN BOOK 745 OF MAPS, PAGE 14 OF OFFICIAL RECORDS.

Unofficial Document

PHOENIXl372197.11 B-1

easement agreement

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