lawrence joel veteran memorial coliseum proposed sale, restrictive covenant

8/23/2019 Lawrence Joel Veteran Memorial Coliseum proposed sale, restrictive covenant

1/40

Drafted by: Angela I. Carmon, City Attorney

NORTH CAROLINA )

FORSYTH COUNTY ) DECLARATION OF RESTRICTIVECOVENANTS AND CONDITIONS

This Declaration of Restrictive Covenants and Conditions (Declaration) is made and

entered into this ____day of _____ 2013 (the Effective Date), by and between the City of

Winston-Salem, a municipal corporation (Grantor) and Wake Forest University, a North

Carolina non-profit corporation (Grantee).

Purpose:

WHEREAS, the Grantor is the owner of that certain real property more particularly described

in Exhibit A attached hereto and incorporated herein by this reference, including, without

limitation, the coliseum building, parking areas and other improvements located thereon

(hereinafter Property), such real property being identified on the Forsyth Tax Maps as PIN

#___________, ________ and ______, and being situated in Winston-Salem, Forsyth County,

North Carolina; and

WHEREAS, the Property is a portion of the real property that was conveyed to the Grantor by

trustees deed dated November 28, 1969, recorded in Book 995, Page 32, Forsyth County

Registry (the Trustees Deed); and

WHEREAS, the Trustees Deed conveyed the Property to Grantor subject to certain restrictive

covenants and conditions which, in part, require Grantor to maintain the building and groundsin a good state of repair and to provide and operate the Property, and other real property

described in the deed as part of Tract I, for sports, recreation, entertainment or cultural

purposes (the Deed Restrictions of 1969); and

WHEREAS, Grantee desires to purchase the Property; and


2/40

WHEREAS, Grantor has agreed to convey the Property to Grantee subject to (1) restrictions

substantially similar to the Deed Restrictions of 1969, and (2) certain additional covenants,

conditions, restrictions and agreements; and

WHEREAS, Grantor has obtained a release and termination of (i) the Deed Restrictions of

1969 with respect to the Property from all parties having a future interest in the Property as aresult of the Deed Restrictions of 1969, and (ii) all right, title and interest of such parties in

the Property as a result of the Deed Restrictions of 1969; and

WHEREAS, Grantee has agreed to accept title to the Property subject to the covenants,

conditions, restrictions and agreements provided herein;

NOW THEREFORE, in consideration of the conveyance of the Property and other good and

valuable consideration, Grantor and Grantee hereby agree that, the Property shall be subject to,

and used in accordance with, the following covenants, conditions and restrictions.

Section: A. Term

1. The covenants, conditions, restrictions and agreements provided in Section B (with the

exception of Section B.5.), Section E.1, Section E.2 and Section D shall commence upon the

Effective Date and shall terminate automatically on December 31, 2034. This period of time

may be referred to herein as the Base Term.

2. The covenants, conditions, restrictions and agreements provided in Section C and

Section B.5. (the Memorial Term Sections) shall commence upon the Effective Date and

shall terminate on the earlier of the following dates:

at such time there is no Coliseum or New Coliseum operated on the Property ora.

on an Alternative Site (and no Major Project to construct, reconstruct, renovate

or restore the Coliseum or the New Coliseum is in progress); or

at such time, as the Grantee has elected to dedicate or otherwise convey to theb.

CityGrantor a portion of the real property described on Exhibit A attachedhereto sufficient for a park or similar facility to memorialize war veterans and

Lawrence Joel, but not exceeding one (1) acre in area (the Memorial Tract),

it being agreed that (i) the Memorial Tract shall be situated in a location

approved by the Grantor and the Grantee (it being agreed that [x] during the

Base Term, the Grantor may grant, withhold or condition such approval in its

discretion, and [y] after the Base Term, Grantors approval shall not be


3/40

unreasonably withheld, conditioned or delayed), and in any event the Memorial

Tract shall be adjacent to the Fairgrounds Parcel, or any other real property

adjacent to the Property that is owned by the Grantor, (ii) upon dedication or

conveyance of the Memorial Tract, the Memorial Term shall terminate, (iii)

Grantor shall execute and record any document necessary to confirm that the

Memorial Tract is not subject to this Declaration, and (iv) no provision of this

subsection A.2(b) shall obligate the Grantee to convey or dedicate the Memorial

Tract to the CityGrantor; or

The Grantor has agreed in writing to end the Memorial Term, in the event thatc.

Grantor and Grantee have agreed on an alternative way to memorialize

Lawrence Joel and war veterans. In the event of a termination pursuant to the

previous sentence, Grantor shall on request from Grantee, confirm such

termination in an instrument in recordable form, which Grantee may cause to berecorded in the Forsyth County Registry.

This period of time may be referred to in this Declaration as the Memorial Term. The

Memorial Term Sections shall be restated in any subsequent declaration that is recorded in

accordance with Section A.4. during the Memorial Term.

3. The covenants, conditions restrictions and agreements provided in: (a) Section E.3 and

Section E.4 shall commence upon the Effective Date and shall terminate automatically on the

date on which the Coliseum is demolished (the Coliseum Term), and (b) Section E.5 shall

commence upon the Effective Date and shall terminate automatically on the earlier of: (i) the

date on which the Grantor has ceased to hold the DCF on the Fairgrounds Parcel for five (5)

successive calendar years, or (ii) such time as no Coliseum or New Coliseum is operated on

the real property described on Exhibit A attached hereto (and no Major Project to construct,

reconstruct, renovate or restore the Coliseum or the New Coliseum is in progress on such real

property) (the DCF Promotion Term).

4. Except as provided above in this Section A, the provisions of this Declaration shall

automatically terminate at the end of the later of the Base Term, the Memorial Term, the

Coliseum Term and the DCF Promotion Term and at such time, the Declaration shall be of nofurther force and effect (the Expiration Date). Although it is the intent of the parties that

termination of any terms or provisions of this Declaration pursuant to the terms hereof shall be

automatic and self-executing, it is agreed that following any termination of provisions of this

Declaration that terminate prior to the Expiration Date, at the request of any party (and at the

expense of the requesting party), all parties shall execute an amendment to this Declaration

confirming which provisions have terminated and which remain in effect pursuant to the terms


4/40

of this Declaration, in form reasonably acceptable to the parties, and the party requesting the

same shall cause the same to be recorded in the Forsyth County Registry.

Section: B. Public Purpose Covenants:

1. Grantee shall in good faith provide for the operation of the coliseum building on theProperty as of the Effective Date, as the same may be repaired, renovated, restored or

remodeled from time to time (the Coliseum) and any New Coliseum (defined herein) that

is constructed during the Base Term, as an assembly-type facility for sports, recreation,

entertainment or cultural purposes, which overall benefits the public (the Public Purposes),

and Grantee shall invest or expend funds necessary to fulfill such purposes; provided,

however, that Grantee shall not be limited to the forms of sports, recreation, entertainment or

cultural activities now or previously operated on the Property.

2. Qualifying Events. Each calendar year, the Grantee shall schedule at the Coliseum orNew Coliseum at least two (2) (i) non-basketball main arena ticketed events, (ii) that are

consistent with the Public Purposes, (iii) that are advertised and open to the general public,

(iv) that are expected by the Grantee to have an economic return sufficient to cover all of the

Grantees costsincluding without limitation, an appropriate portion of the Grantees

overhead and depreciationassociated with presenting such an event at the Property, which

costs Grantee will make a good faith effort to maintain at a reasonable and affordable level,

and (v) that do not conflict with the schedules of the Grantees events or any other events at

the Property (collectively, a Qualifying Event). If in one calendar year, in spite of

exercising reasonable efforts to market and promote the Property for Qualifying Events, the

Grantee is asked by Grantor to host fewer than two (2) Qualifying Events, the Grantee shall be

conclusively deemed to have complied with its obligations under this Section B.2. It is

recognized that the Grantees events and the scheduling of any other events at the Property

may change over time. The parties agree that any Grantee events or other events scheduled

(or not scheduled) at the Property in any one calendar year shall not limit the Grantees ability

to schedule such events at the Property in any subsequent calendar years.

3. Grantor Events. The Grantee shall allow the Grantor to use the Property for the

Grantors events up to two (2) times per calendar year during the Base Term, on the terms andconditions provided in this Section B.3.

The Grantor must notify the Grantee each calendar year at least six (6) monthsa.

in advance of the desired date(s) for any such Grantor Event (the Grantor

Advance Scheduling Notice). Upon receiving a Grantor Advance Scheduling


5/40

Notice, the Grantee shall work cooperatively with the Grantor in scheduling and

hosting the Grantor Event on an agreed date (the GrantorScheduled Date).

If the Grantee receives a request to host or present another event on the Grantorb.

Scheduled Date and the Grantee notifies the Grantor no less than ninety (90)

days prior to the Grantor Scheduled Date that the Grantee desires to reschedulethe Grantor Event (a Rescheduling Request), then the Grantor and the

Grantee shall work in good faith to reschedule the Grantor Event on a mutually

agreeable date.

The Grantee shall not be liable for any inability to schedule or host a Grantorc.

Event at the Property if the Grantor does not send the Grantor Advance

Scheduling Notice to the Grantee as and when required by this Section B.3

(time being of the essence of the Grantor Advance Scheduling Notice). If the

Grantor does not timely send a Grantor Advance Scheduling Notice to the

Grantee, the Grantee shall nonetheless be conclusively deemed to have

complied with its obligations under this Section B.3 with respect to such

Grantor Event, even if such Grantor Event is not hosted at the Property.

No Grantor Advance Scheduling Notice may be sent more than twelve (12)d.

months in advance of the earliest date specified in the Grantor Advance

Scheduling Notice.

For any Grantor Event, the Grantor shall be responsible for payment of amountse.

sufficient to cover all of the Grantees costs in hosting such Grantor Events,

including without limitation, an appropriate portion of the Grantees overheadand depreciation associated with presenting such Grantor Event at the Property,

it being agreed that Grantee shall make a good faith effort to maintain said

costs at a reasonable level.

No Grantor Event shall interfere with the schedules of events already scheduledf.

at the Property, and the Grantee reserves the right to send a Rescheduling

Request pursuant to Subsection B.3(b) above.

If in any calendar year, the Grantor does not request use of the Property for atg.

least two (2) Grantor Events, the Grantee shall nonetheless be conclusivelydeemed to have complied with its obligations under this Section B.3 for that

calendar year. A Grantor Event shall not count as a Qualifying Event.

4. Repeat Community Events. The Grantee shall, subject to the conditions and limitations

provided in this Section B.4, host at the Property during each calendar year during the Base

Term the following six (6) events (collectively, the Repeat Community Events, and each, a


6/40

Repeat Community Event): (i) commencement ceremonies for Forsyth Technical

Community College, or a successor institution with similar educational mission (with

additional ceremonies or overflow from ceremonies on the Property hosted in buildings on the

Fairgrounds Parcel (defined in Section E.5 below) as needed to handle the size and number

of ceremonies); (ii) commencement ceremonies for Winston-Salem State University, or a

successor institution with similar educational mission (with additional ceremonies or overflow

from ceremonies on the Property hosted in buildings on the Fairgrounds Parcel as needed to

handle the size and number of ceremonies) (WSSU Commencement); (iii) graduation

ceremonies for Winston-Salem/Forsyth County High Schools (with additional ceremonies or

overflow from ceremonies on the Property hosted in buildings on the Fairgrounds Parcel as

needed to handle the size and number of ceremonies) (High School Graduations); (iv) the

Frank Spencer High School Basketball Tournament, or a successor local high school

basketball tournament; (v) theannual holiday concert of the Piedmont Wind Symphony, or asuccessor civic wind symphony group; and (vi) the Christmas concert of the Winston-Salem

Symphony, or a successor civic symphony group. The Repeat Community Events (A)described in clauses (i) through (iii) of the preceding sentence may be referred to herein

collectively as the Graduation Events and each individually as a Graduation Event, and

(B) described in clauses (iv) through (vi) of the preceding sentence may be referred to herein

as the Winter Events and each individually as a Winter Event. The applicable non-profit

or governmental entities presenting any Repeat Community Event may be referred to herein as

an Event Sponsor.

An Event Sponsor for a Winter Event must notify the Grantee each calendar year ata.

least six (6) months in advance of the desired date(s) for its Winter Event (the

Advance Scheduling Notice). Upon receiving an Advance Scheduling Notice, theGrantee shall work cooperatively with such Event Sponsor in scheduling and hosting

the applicable Winter Event on an agreed date (the Event Scheduled Date).

Each Graduation Event shall be entitled to reserved dates each calendar year (theb.

Reservation Dates), set according to the particular day of the week and the

particular week of the applicable calendar month in which the commencement

ceremonies associated with each Graduation Event were held in the year in which the

Effective Date occurred. As an example but not by way of limitation, if

commencement ceremonies were held on Sunday, May 12, 2013, then the Reservation

Dates in subsequent years would be the second Sunday of May and the two precedingdays. It is agreed that each Graduation Event shall have a total of three (3) days for

set-up, rehearsal, ceremonies and clean-up, but that the Reservation Dates shall be set

according to the preceding provisions of this Section B.4(b) according to the date on

which the commencement ceremonies were held in the year in which the Effective


7/40

Date occurred, understanding that the Reservation Dates also shall include the two days

preceding such date, for purposes of set-up and rehearsal.

If the Grantee receives a request to host or present another event on the Eventc.

Scheduled Date for a Winter Event and the Grantee notifies the Event Sponsor no less

than ninety (90) days prior to the Event Scheduled Date that the Grantee desires toreschedule the Winter Event (an Event Rescheduling Request), then the Event

Sponsor and the Grantee shall work in good faith to reschedule the Winter Event on a

mutually agreeable date. Grantee and the applicable Event Sponsor for a Graduation

Event shall be bound to the Reservation Dates for such Graduation Event, unless

Grantee and the applicable Event Sponsor mutually agree to reschedule the applicable

Graduation Event in any given calendar year. Up to the date that is ninety (90) days

prior to the Reservation Dates or the Event Scheduled Date, as the case may be, an

Event Sponsor may request in writing to Grantee a change in the scheduling of its

Repeat Community Event, and Grantee will exercise good faith efforts to accommodate

the request. Notwithstanding any provision of this DeclarationSection B to the

contrary, Grantees graduation and commencement ceremonies and related events, and

preparations and rehearsals in connection therewith, have scheduling priority over all

other events except for WSSU Commencement and High School Graduations on their

respective Reservation Dates for the then-current year.

The Grantee shall not be liable for any inability to schedule or host a Winter Event ifd.

the Event Sponsor does not send the Advance Scheduling Notice to the Grantee as and

when required by this Section B.4 (time being of the essence of the Advance

Scheduling Notice). If the Event Sponsor does not timely send an Advance Scheduling

Notice to the Grantee, the Grantee shall nonetheless be conclusively deemed to have

complied with its obligations under this Section B.4 with respect to such Winter Event

for that calendar year, even if such Winter Event is not hosted at the Property.

No Advance Scheduling Notice may be sent for a Winter Event more than twelve (12)e.

months in advance of the earliest date specified in the Advance Scheduling Notice. No

Winter Event shall interfere with the schedules of events already scheduled at the

Property, and the Grantee reserves the right to send an Event Rescheduling Request

pursuant to Subsection B.4(c) above.

If any Event Sponsor does not schedule, or schedules but does not present, any Repeatf.

Community Event at the Property for five (5) successive calendar years, then in each

such case, this Declaration shall be automatically amended to delete such Repeat

Community Event from the listing above in this Section B.4 and the Grantee shall have

no obligation whatsoever to host such Event Sponsors Repeat Community Event. No

action by any party shall be necessary to accomplish the amendment described in the


8/40

preceding sentence, it being the intention of the parties that the foregoing sentence

shall be self-executing.

A Repeat Community Event shall not count as a Qualifying Event or Grantor Event.g.

The Grantees arrangements with an Event Sponsor shall be on substantially the sameh.prevailing contract terms and conditions as are contained in the contract between the

City of Winston-Salem and the applicable Event Sponsor executed or performed in the

twelve-month period preceding the date of this Declaration (the Reference Period),

including, without limitation, the following terms:

i. All fees and any other pricing in a contract for a Repeat Community

Event shall be subject to a maximum increase based on the percentage by which

the Consumer Price Index for All Urban Consumers (CPI-U); South Region;

All Items, not seasonally adjusted, 1982-1984=100 reference base (or any

replacement of the foregoing as the standard reference base for CPI-U) (CPI)for the month of January during the Reference Period has increased as compared

to the CPI for the month of January of the calendar year in which the Repeat

Community Event is to be held. It is agreed by the parties that if the CPI for

January of the calendar year in which the Repeat Community Event is to be held

has not been published at the time that the Grantee and the Event Sponsor desire

to finalize their agreement for such years Repeat Community Event, then the

most recently published monthly CPI shall be compared against the CPI for the

month of January during the Reference Period. The Grantor has previously

delivered to the Grantee complete copies of the contracts between the Grantor

and each Event Sponsor with respect to the Repeat Community Events during the

Reference Period.

ii. Each Repeat Community Event shall include on-site parking

provided by the Grantee (a) free of charge for the Winston-Salem Symphony

Christmas concert and each Graduation Event, and (b) for all other Repeat

Community Events, at rates, if any, as established by Grantee from time to time,

provided parking rates shall not exceed those charged during the Reference

Period, subject to CPI increase as described in subsection B.4(h)(i) above. If

parking is provided free of charge for a Repeat Community Event, Grantee shall

have no obligation to provide parking staffing unless such service is paid for in

the Event Sponsors rental fee.

iii. The Grantee agrees to provide requested on-site event staffing for

each Repeat Community Event to each Event Sponsor on substantially the same

terms offered by Grantor to such Event Sponsor during the Reference Period

(subject to the aforesaid CPI adjustment), consistent with the overall goal of


9/40

recovering the Grantees costs incurred in hosting the Repeat Community Event

but without expectation of profit. For each Repeat Community Event, the Grantee

will make a good faith effort to maintain its costs at a reasonable and affordable

level for each Event Sponsor.

iv. The Event Sponsor may provide appropriate promotional signageto be displayed on the Coliseums or New Coliseums electronic marquee (or, in

the event the Coliseums or New Coliseums marquee is replaced, then on any

replacement marquee located on the Property), which language the Grantee

reserves the right to modify if such language is inappropriate in Grantees

discretion or could potentially violate or abridge any Applicable Laws or

grandfathering status for the Property or signage on the Property.

5. Remembrance Events. The Grantee shall allow the Grantor or a non-profit entity or a

governmental entity that is designated by Grantor to Grantee in writing (Designee) to host a

Memorial Day ceremony and a Veterans Day ceremony (each, a Remembrance Event) at

the Property on the terms described in this Section B.5. As used in this Section only, Grantor

and any Designee shall be referred to collectively as Grantor. Any Designee must be

identified in a written notice from Grantor to Grantee given at least two (2) weeks in advance

of the applicable Remembrance Event. A Remembrance Event shall:

be hosted in the Lawrence Joel Veterans Memorial Lobby (as defined below)a.

or another area designated by the Grantee within the Property that is

comparable in size, accessibility and visibility, or in any other mutually agreed

upon location;

be held on the date of the federally-designated holiday associated with theb.

Remembrance Event, or on such other date as is agreed to by the Grantee and

the Grantor;

be conducted with minimal on-site event staffing by the Grantee within the areac.

of the Coliseum where the event is to be located, as determined by the Grantee;

be hosted free of charge; andd.

have parking provided free of charge, but the Grantee will have no obligation toe.staff parking areas for any Remembrance Event.

6. Damage and Destruction. In the event of substantial damage to or destruction of the

Coliseum at the Property, Grantee shall undertake to build one (1) new assembly-type building

for the purpose of fulfilling its obligations with respect to the Public Purposes (a New

Coliseum), which New Coliseum may be located anywhere on the Property or on an


10/40

Alternative Site (as defined in Section GH below), as determined by Grantee in its sole

discretion. During the Base Term, Grantee shall maintain a policy of insurance against fire

and other hazards or casualties insuring the Coliseum, the New Coliseum in an amount equal

to one-hundred percent (100%) of the replacement cost. During the course of any alterations

Grantee (or its contractor) shall carry replacement cost builders insurance. A duplicate

original of the policy of physical damage insurance, all renewals thereof, and any subpolicies

or certificates and endorsements issued thereunder shall be provided on request to the Grantor,

which requests shall be made no more frequently than annually. Grantee shall have no

obligation to maintain, repair, replace, construct or operate the Coliseum or the New Coliseum

on the Property or on an Alternative Site after the expiration of the Base Term, and any such

maintenance, repair, replacement, construction or operation of the Coliseum or the New

Coliseum after the Base Term shall not be interpreted or construed as an extension of the Base

Term.

7. Condemnation. In the event so much of the Property is taken in the exercise of

eminent domain, or a transfer in lieu of such a taking, that (a) if the Coliseum is then located

on the Property, operation of the Coliseum is made infeasible as determined by Grantee in its

sole discretion, or (b) if the New Coliseum is then located on the Property, operation of the

New Coliseum is made infeasible as determined by Grantee in its sole discretion, or (c) if the

Coliseum or the New Coliseum is then, or must as a result of the taking be, demolished and

construction of the New Coliseum on the Property is inadvisable for any reason as determined

by Grantee in its sole discretion, then in any such event, the parties agree that performance of

this Declaration shall be rendered impossible, and Grantee automatically shall be released from

and relieved of its obligations under this Declaration and the Property automatically shall bereleased from this Declaration. In the event of any impossibility pursuant to the previous

sentence, upon the request of either party, the parties shall execute appropriate documentation

in recordable form to confirm the termination of this Declaration and shall cause the same to

be recorded in the Forsyth County Registry.

8. Compliance with Public Purposes.

a. Without intending to limit the manner or number of ways in which Grantee

may comply with its obligations with respect to Public Purposes under this

Declaration, the parties agree that if Grantee performs its obligations under

Section B.2, Section B.3, Section B.4 and Section B.5 above (or if any

conditions have occurred under which compliance is conclusively deemed under

such Sections, or is excused under Subsection B.8(b) below, or if any non-


11/40

compliance has been cured for purposes of Section F below) in any calendar

year, then Grantee will have discharged its obligations under the Declaration for

such calendar year with respect to the Public Purposes.

b. During any Major Project, Grantee will keep Grantor advised as to the status

and progress of the Major Project and the estimated timeframe for restoration of

hosting of the events contemplated by Section B.2, Section B.3, Section B.4

and Section B.5. Notwithstanding any provision ofthis DeclarationSection B to

the contrary, if, in the sole discretion of Grantee, the Coliseum or the New

Coliseum is not capable of hosting certain events while the Grantee is

undertaking a Major Project (as defined in Section GH below) on the

Property, then (i) Grantee shall be excused from any failure or inability to

perform its obligations under Section B.2, and Section B.3 above, and (ii) no

Breach Notice can be given until the earlier of completion of the Major Project,or Grantees determination in its reasonable discretion that the Coliseum or

New Coliseum, as the case may be, is capable of hosting the events

contemplated by Section B.2 and Section B.3 above. With respect to Grantees

obligations set forth in Section B.4 and Section B.5, Grantee shall endeavor to

schedule any Major Project so as to allow Repeat Community Events and

Remembrance Events to be held at the Property even if the Major Project is

ongoing, but if Grantee determines in its reasonable discretion that a Repeat

Community Event or Remembrance Event should not be held at the Property

during a Major Project, and if Grantee endeavors to find an alternate location

for the applicable Repeat Community Event (and Grantor agrees to fairly

consider in good faith Grantees request to Grantor to make any of its event

facilities available for such purpose on the same terms as Grantee would have

otherwise been obligated to provide for such Repeat Community Event, as long

as there are no conflicting events scheduled at the applicable Grantor facilities),

then (i) Grantee shall be excused from any failure or inability to perform its

obligations under Section B.4 or Section B.5, as applicable, and (ii) no Breach

Notice can be given to Grantee relating to such failure or inability.


12/40

9. Issues with Certain Events. If any complaint is received by Grantee regarding a

particular Repeat Community Event or Remembrance Event, and if Grantee has not resolved

such complaint within a reasonable time, two representatives of Grantee and two

representatives of Grantor shall together evalauateevaluate such complaint and provide anadvisory opinion to Grantee regarding possible resolutions to such complaint, consistent with

Grantees obligations under this Declaration.

Section: C. Memorials to Lawrence Joel and Veterans

1. During the Memorial Term, Grantee shall retain at the Coliseum, New Coliseum and

Alternative Site the Lawrence Joel name in a Meaningful Manner, which term means that:

The Lawrence Joel Veterans Memorial plaque and portrait, which are on thea.

Effective Date mounted in a room that functions as the main lobby of the

Coliseum, shall be displayed in that same room or in another location within

the Coliseum, and New Coliseum that is comparable in size, accessibility and

visibility; and

Grantee will make information about Lawrence Joel and his contributions to theb.

Winston-Salem community available on any website for the Coliseum or New

Coliseum that is owned, operated, controlled or sponsored by Grantee.

The room that functions as the main lobby of the Coliseum on the Effectivec.

Date shall be designated The Lawrence Joel Veterans Memorial Lobby and a

plaque or other signage or clearly visible inscription displaying that name shallbe displayed in that room; and

The two areas immediately outside of the entry and exit doors for the space tod.

be designated The Lawrence Joel Veterans Memorial Lobby on which the

Veterans Monuments (defined herein) are located shall be designated The

Lawrence Joel Veterans Memorial Plaza and a plaque or other signage or

clearly visible inscription displaying that name shall be displayed in such area.

With respect to Section C. 1(c) and Section C.1(d) above, if Grantee is otherwise obligated by

the terms of this Declaration to construct the New Coliseum, Grantee shall: (i) designate in the

New Coliseum at the Property or Alternative Site, an area comparable in size and visibility to

the Coliseum, as The Lawrence Joel Memorial Lobby and display a plaque or other signage

visibly depicting the such name, and (ii) designate in the New Coliseum at the Property or

Alternative Site an area comparable in size and visibility to the Coliseum, as The Lawrence

Joel Veterans Memorial Plaza. The memorials to Lawrence Joel and the Veterans must be

retained during the Memorial Term at the Coliseum and the New Coliseum on the Property


13/40

and Alternative Site. If the Grantee and Grantor agree upon additional means of

memorializing Lawrence Joel and war veterans at the Property during the Memorial Term, it is

agreed that the expense of any additional memorials or monuments shall be paid for by the

Grantor.

2. Veterans Monuments. During the Memorial Term, Grantee shall retain and maintain,at the Grantees sole expense, the veterans monuments, monument areas and landscaping,

including the locator sign substantially as they exist on the Effective Date (collectively,

Veterans Monuments), on the Property or the Alternative Site in accordance with the

Veterans Program Guidelines attached hereto as Exhibit D. In the event of substantial

damage to or destruction of the Coliseum at the Property, if Grantee is otherwise obligated by

the terms of this Declaration to repair or restore the Coliseum or to construct the New

Coliseum, and in such event, if it is necessary in connection with such repair, restoration or

construction, Grantee shall cause the Veterans Monuments to be relocated to a location on the

Property that is approved by both the Grantee and the Grantor, such Grantor approval not to

be unreasonably withheld, conditioned or delayed. During the Memorial Term, Grantee shall

allow Remembrance Events detailed in Section B.5. to occur at the Alternative Site if the

Veterans Monuments are located there.

Grantor may at any time cause the Veterans Monuments to be removed to a different location

if desired by Grantor, provided that (i) any damage done to the Property or an Alternative Site

as the result of such removal shall be repaired by Grantor or Grantee (at Grantees election),

and at Grantors expense, (ii) Grantor shall provide 180 days notice to Grantee of Grantors

desire to remove the Veterans Monuments, (iii) Grantor shall actually remove the VeteransMonuments within 180 days of said notice, and (iv) upon such removal by Grantor, Grantees

obligations under this Section C.2 shall terminate. Following expiration of the Memorial

Term if the Veterans Monuments are still located on the Property or Alternative Site, as

applicableand unless Grantee and Grantor have previously reached an alternative agreement

regarding the relocation or disposition of the Veterans MonumentsGrantee may provide

notice to Grantor to remove the Veterans Monuments, and for a period of 180 days after such

notice, Grantor shall be entitled to enter upon the Property or the Alternative Site, as the case

may be, and remove the Veterans Monuments, it being agreed that any damage done to the

Property or an Alternative Site as the result of such removal shall be repaired by Grantor or

Grantee (at Grantees election), and at Grantors expense. If for any purpose under thisSection C.2, Grantor is allowed a period of 180 days to remove the Veterans Monuments and

Grantor does not cause the Veterans Monuments to be removed within such period, then

Grantor shall have automatically waived any right, title, interest or claim in or to the Veterans

Monuments.


14/40

If any Veterans Monuments are damaged or destroyed, the Grantor shall be responsible for

the cost of repairing, replacing and/or restoring the Veterans Monuments that have been so

damaged or destroyed, unless such damage or destruction is caused by the negligent or

intentional act or omission of Grantee, its employees, officers, or agents(in which case, the

Grantee shall bear the cost of repairing, replacing and/or restoring the Veterans Monuments).

If the Grantee undertakes a Major Project at the Property or Alternative Site that either

enlarges or reduces the footprint of the Coliseum or New Coliseum, or if the Grantee elects to

demolish the Coliseum and build the New Coliseum, the Grantee in either event shall cause

the Veterans Monuments to be relocated to a location on the Property or Alternative Site that

is approved by both the Grantee and the Grantor, such Grantor approval not to be

unreasonably withheld, conditioned or delayed. In the event of any relocation of the Veterans

Monuments on the Property or Alternative Site, the Remembrance Events shall be held in

proximity to the new location of the Veterans Monuments. The public shall have free access

(including parking at no charge) to the Veterans Monuments, as the same may be relocated

on the Property or Alternative Site, except during a paid or restricted parking event occurringat the Property or Alternative Site or an event occurring on the Fairgrounds Parcel that is

entitled to have paid or restricted parking on the Property. Grantee shall be entitled to

relocate the Veterans Monuments to another location on the Property that is approved by both

the Grantee and the Grantor, such Grantor approval not to be unreasonably withheld,

conditioned or delayed.

3. Veterans Wall. As long as the Coliseum remains on the Property, the granite

veterans memorial wall, which, as of the Effective Date, is mounted in a room that functions

as the main lobby of the Coliseum, shall be displayed in that same room or in another locationwithin the Coliseum that is comparable in size, accessibility and visibility. If the New

Coliseum is built on the Property or Alternative Site, Grantee shall install a veterans

memorial substantially similar in scope to the veterans wall at the Coliseum on the Effective

Date, in an area that is comparable in size, accessibility and visibility to the room in which the

veterans memorial wall is displayed in the Coliseum as of the Effective Date.

4. Retention of Names on Certain Signage. To the extent permitted by Applicable Laws,

during the Memorial Term, Grantee shall cause (a) the marquee sign (and any replacement

thereof) on University Parkway and (b) the rectangular stone faade located on the Effective

Date over the Coliseums box office, to include as an element of such signage a display of the

names Lawrence Joel and Veterans Memorial in a manner that is appropriately visible,

and in the case of the marquee sign, such display also shall be visible to drivers on University

Parkway. Grantee may, in Grantees discretion, elect to use any such signage to indicate that

the Lawrence Joel Veterans Memorial Plaza is located on the Property.


15/40

45. Changes in Design or Display. After a public input session soliciting input from

veterans, descendants of Lawrence Joel and the public regarding the proposed change in

design and display, Grantor and Grantee may agree to change the design or display of any of

the memorials described above in Section C.1, Section C.2 and Section C.3 (collectively, theMemorials). In such event, the Grantee and Grantor may enter into a mutually acceptable

agreement concerning the change in design or display of the Memorials (or any of them), and

the applicable Memorials as so changed shall be displayed on the Property or Alternative Site,

as applicable.

56. Access Restriction During a Major Project. Notwithstanding any provision of this

DeclarationSection C to the contrary, if, in the reasonable discretion of Grantee, access to any

of the Memorials should be restricted during all or a portion of the applicable Major Project,

then (i) Grantee shall notify Grantor of the need for restricted access and which of the

Memorials will be affected (the Access Restriction Notice), (ii) Grantee shall keep Grantor

advised as to the status and progress of the Major Project and the estimated timeframe for

completion thereof, (iii) Grantee shall be excused from any failure or inability to perform its

obligations under Section C.1, Section C.2 or Section C.3 above (as applicable, depending on

the scope of the Access Restriction Notice), and (iv) no Breach Notice can be given with

respect to those obligations that are within the scope of the Access Restriction Notice until the

earlier of completion of the Major Project, or Grantees determination in its reasonable

discretion that access can be restored to the Memorials subject to the Access Restriction

Notice provided completion of the Major Project has not been unreasonably delayed.

Section: D. Maintenance of Property and Reserved Rights

1. During the Base Term, Grantee shall maintain, at all times, the Property, including, but

not limited to, the Coliseum or the New Coliseum, as the case may be, parking lots,

accessways, sidewalks, traffic islands, and related landscaping, in a good state of repair and in

compliance with all Applicable Laws. During any Major Project that materially affects

Grantees ability to perform its obligations under this Section D.1, Grantee will keep Grantor

advised as to the status and progress of the Major Project and the estimated timeframe for

resumption of Grantees ability to perform its obligations under this Section D.1, and until the

earlier of the date that Grantee has notified Grantor that it can resume its obligations under

this Section D.1, or the date of completion of the Major Project, Grantee shall be excused

from any failure or inability to perform its obligations under this Section D.1, and no Breach

Notice can be given with respect to such obligations provided completion of the Major Project

has not been unreasonably delayed.


16/40

2. During the Base Term, Grantee shall invest a minimum of Ten Million Dollars

($10,000,000.00) in the Property (the Investment Obligation), which may be expended by

Grantee, without limitation, in repairs and maintenance, deferred maintenance, or capital

improvements to the Property. Grantee presently anticipates that the Investment Obligation

may be directed toward any one or more of the following projects:

Building Automation System

Heating, Ventilation and Air Conditioning System

Electrical Generator System

Fire Alarm System

Restroom Fixtures

Food Service

Miscellaneous Mechanical, Electrical and Plumbing

Security System

Audio, Cabling and Control Room

Roof cleaning and repairs

It is agreed that in the event the New Coliseum is constructed before the Investment

Obligation has been satisfied, then any amounts spent by Grantee in constructing the New

Coliseum shall count against the Investment Obligation. While Grantee is not and shall not be

obligated to complete all of the projects listed in this Section D.2.; Grantee is obligated to

satisfy its Investment Obligation before the end of the Base Term. At least twelve (12) months

before the end of the Base Term, Grantee shall deliver to Grantor evidence of Grantees

compliance with the Investment Obligation, which shall consist of invoices, contracts, or

purchase orders and proof of payment of the same. If Grantee has not satisfied its Investment

Obligation by December 31, 2034, Grantee shall pay to Grantor, within one-hundred and

twenty (120) days following the expiration of the Base Term, the difference between the

Investment Obligation and the actual amount expended by Grantee during the Base Term

toward the Investment Obligation.

3. Notwithstanding any provision of this Declaration to the contrary, Grantee has, and

shall have, the right from time to time to have minor or temporary disruptions of the normal

access and traffic patterns on the Coliseum Property, as long as reasonable access, ingress and

egress is provided to the Memorials and to the Coliseum.


17/40

4. Except as provided above in Section C with respect to the Memorials, no provision of

this Declaration shall limit or impair Grantees rights to alter or redesign parking lots,

accessways, sidewalks, traffic islands, and related landscaping, or any other improvements to

the Coliseum Property from time to time provided reasonable access, ingress and egress to the

Memorials and the Coliseum is afforded.

Section: E. Operational Covenants for the Coliseum

1. Premium Seating. The Grantee shall retain and maintain at the Coliseum or New

Coliseum, at no cost to the Grantor, a permanent box suite or comparable premium (non-

private) seating for the Grantors representatives (CWS Premium Seating) for the Grantors

marketing and promotional activities, on the following terms and conditions:

The Grantee shall not be obligated to provide tickets, beverages or food for anya.

persons using the CWS Premium Seating, such provisions to be made by the

Grantor or any other persons or entities other than the Grantee; and

If the Grantor declines a permanent box suite or comparable premium (non-b.

private) seating, or if the Grantee eliminates box suites or premium seating in

the Coliseums seating structure, then the Grantee shall supply the Grantor with

eighteen (18) adjacent seats in an area of the Coliseum or New Coliseum that

provides a substantially similar lower- or upper-level panoramic view of the

Coliseum or New Coliseum floor.

The Parking Agreement (defined in Section E.7 below) may make provisions for

parking passes that may be used in connection with CWS Premium Seating.

2. Winston-Salem Name. During basketball games at the Coliseum, the Grantee shall

display the Winston-Salem name on the basketball floor in the Coliseum. Except as

provided in the preceding sentence, the Grantor has no rights with respect to the naming or

renaming of the Property, the Coliseum or any other improvements constructed or

reconstructed on the Property from time to time, nor with respect to any sponsorships or

events at the Property, the Coliseum or any other improvements constructed or reconstructed

on the Property from time to time. The immediately preceding sentence shall not be construed

as a waiver of Grantors municipal regulatory authority over signs in general.

It is understood and agreed that if the National Collegiate Athletic Association, or any

successor regulatory body with respect to collegiate athletics, or the Atlantic Coast

Conference, or any other collegiate athletic conference of which Grantee may be a member

from time to time (collectively, the Athletics Regulators) adopt rules or regulations

regarding content displayed on basketball floors, which prohibit Grantees compliance with the

terms of this Section E.2 or limit the Grantees ability to comply with the terms of this


18/40

Section E.2, then Grantee shall, to the extent allowed by the Athletics Regulators, display the

Winston-Salem name on floor-level electronic sidelines signage, but if that display is also

prohibited or limited by Athletics Regulators, Grantees obligations under this Section E.2

shall be excused for as long as such rules and regulations of the Athletics Regulators remain

in effect.

3. Tourism Related Events and Occupancy Tax Fund. Grantee shall fairly consider in

good faith request(s) to schedule at the Coliseum or New Coliseum tourism and other

community outreach events, which may include, without limitation, events such as religious

conventions, Amateur Athletic Union (AAU) sports, North Carolina High School Athletic

Association (NCHSAA) events, State of North Carolina State games and college basketball

tournaments (collectively the Tourism Events, and each a Tourism Event). Grantee

shall be entitled to charge normal usage rates for the Coliseum or New Coliseum, as

applicable, for any Tourism Event.

The Grantor shall maintain an annual appropriation of $75,000 from the Winston-

Salem/Forsyth County Occupancy Tax Fund, or an equivalent or replacement fund (OTF) to

support Tourism Events at the Property that are chosen by the Grantor for reasons that may

include promoting tourism or community outreach, and which may include, without limitation,

subsidizing the Grantees costs of presenting the Tourism Event. The OTF shall not be used to

subsidize or defray the costs of Repeat Community Events, Qualifying Events, Grantor Events

or Remembrance Events. OTF support may include, but shall not be limited to, defrayal or

subsidization of an event promoters cost of holding such event at the Property. There shall be

no annual appropriation from the Grantors General Fund to support Property operations.

Should the OTF terminate or otherwise cease to exist, the Grantors obligation to maintain theannual appropriation for the purpose of providing support for the aforementioned events shall

terminate.

4. Boulevard. Except (i) during events at the Property or on other real property owned by

Grantee, for which all or a portion of the Property is subject to restricted or paid parking,

(ii) during events on the Fairgrounds Parcel for which Grantee has agreed to have paid or

restricted parking on the Property, and (iii) as otherwise provided in this Declaration, the

Grantee shall keep open for public access the driveway known as Commander Norman Miller

Boulevard, as the same may be renamed from time to time, as shown on the Site Plan

attached hereto as Exhibit C.

5. Dixie Classic Fair Promotion. Subject to compliance with applicable laws, regulations

and ordinances, whether federal, state or local (collectively, Applicable Laws), the Grantee,

on request from Grantor, shall allow the Grantor to promote the Dixie Classic Fair, or a

successor county fair/exposition event on the real property described on Exhibit B attached


19/40

hereto and incorporated herein by this reference (the Fairgrounds Parcel) that is an

equivalent exposition-type fair serving northwestern North Carolina to be held during the year

in which the promotional request is made (collectively, the DCF) on the Coliseums or New

Coliseums electronic marquee (or, in the event the Coliseums or New Coliseums marquee is

replaced, then on any replacement marquee located on the Property), free of charge, for a

period of not less than two (2) weeks prior to and during the scheduled DCF, in the regular

rotation of sign content for such electronic marquee (it being understood that each sign in the

rotation must be displayed for a minimum of two (2) minutes at a time). For as long as the

parking canopy with electronic message board located on the Property on the Effective Date

(the Parking Canopy) is located on the Property, subject to compliance with Applicable

Laws, the Grantee shall allow the Grantor to promote the DCF, free of charge, for a period of

not less than two (2) weeks prior to and during the scheduled DCF, in the regular rotation of

sign content for the Parking Canopys electronic message board (it being understood that each

sign in the rotation must be displayed for a minimum of two (2) minutes at a time). It is

agreed that if the Parking Canopy is destroyed or substantially damaged in a casualty, or if theParking Canopy is dismantled because of a Major Project, then Grantee shall have no

obligation to rebuild or restore the Parking Canopy and Grantees obligations in the preceding

sentence shall be released and of no further force or effect. If Applicable Laws change the

interval at which electronic signs can change their message, or if any grandfathering

condition or legal non-conforming status for certain signs on the Property allowing such signs

to change at a more or less frequent interval than is allowed by Applicable Laws is lost or

revoked, then the sign change intervals specified in this Section E.5 shall change as necessary

to comply with Applicable Laws. TheGrantee shall be entitled to regulate the content of any

such promotional signage; notwithstanding the foregoing, such signage shall specify the name

of the DCF event and the dates and times on which the event shall be presented.

6. Taxes. The Grantee shall list the Property and any business personal property owned

by Grantee and used on the Property with appropriate tax authorities as required by law and,

to the extent Grantees use of the Property or its business personal property shall be

determined to not be exempt from taxes, the Grantee shall pay any such taxes billed on such

real and personal property before the same become overdue. The foregoing sentence shall not

limit, impair or waive the right of the Grantee to seek exemptions from taxation based on the

use of its real or personal property, nor shall it limit the right of the Grantee to appeal the

valuation of such real or personal property or the amount of any taxes assessed on such real or

personal property.

7. Parking. The agreements of the Grantor and the Grantee with respect to parking for

the DCF on the Property is provided in that certain Parking Agreement dated as of

____________, 201__, which, together with any amendments, modifications, restatements

and/or assignments of the same which may occur from time to time (collectively, the


20/40

Parking Agreement), are incorporated into this Declaration by reference. The Property will

be subject to use for parking for the DCF, until the date on which the Grantor has ceased to

hold the DCF on the Fairgrounds Parcel for five (5) successive calendar years, in accordance

with the Parking Agreement.

8. Major Projects Affecting Certain Operational Covenants. Notwithstanding any

provision of this DeclarationSection E to the contrary, if, in the reasonable discretion of

Grantee, a Major Project will materially affect Grantees ability to perform its obligations

under Section E.1, Section E.3 or Section E.4, then (i) Grantee shall notify Grantor of the

Major Project and of which of Grantees obligations under Section E.1, Section E.3 or Section

E.4 (or all of them) will be materially affected thereby, (ii) Grantee shall keep Grantor advised

as to the status and progress of the Major Project and the estimated timeframe for completion

thereof, (iii) Grantee shall be excused from any failure or inability to perform its obligations

under Section E.1, Section E.3 or Section E.4 above (as applicable, depending on the scope of

Grantees notice), and (iv) no Breach Notice can be given with respect to those obligationsthat are within the scope of the Grantees notice until the earlier of completion of the Major

Project, or Grantees determination in its reasonable discretion that it can resume performance

of its obligations in Section E.1, Section E.3 and Section E.4. provided completion of the

Major Project has not been unreasonably delayed.

Section: F. Enforcement

1. If Grantee shall fail to comply with any obligation provided in Section B, Section C,

Section D, or Section E above, then Grantor may provide to Grantee written notification of the

same detailing the nature of the breach or failure to comply (a Breach Notice).

Repeat Community Event. Upon receipt from the Grantor of a Breach Noticea.

regarding any provision of Section B.4. (a B.4. Breach Notice) for the first

time, Grantee shall elect to, (i) within a period of thirty (30) days from the date

of receipt of such first B.4. Breach Notice, cure the failure or breach, or

(ii) within ninety (90) days from the date of receipt of such first B.4. Breach

Notice, pay the Event Sponsor as liquidated damages in satisfaction of the harm

suffered by the Event Sponsor and the Grantor, caused by the condition giving

rise to the first B.4. Breach Notice, ten thousand dollars ($10,000.00). For all

purposes under this Subsection F.1(a), if Grantee has elected to cure a failure orbreach during any applicable Cure Period provided (as the same may be

extended), then any monetary payment owed in the event that the breach is not

cured shall not become due and payable unless and until Grantee fails to cure

the breach within such Cure Period (as the same may be extended).


21/40

Upon receipt from Grantor of the second B.4. Breach Notice (and regardless of

whether the Repeat Community Event or Event Sponsor necessitating such

second B.4. Breach Notice is the same as the one associated with the first B.4.

Breach Notice), Grantee shall elect to, (i) within a period of thirty (30) days

from the date of receipt of such second B.4. Breach Notice, cure the failure or

breach, or (ii) within ninety (90) days from the date of receipt of such second

B.4. Breach Notice, pay the Event Sponsor as liquidated damages in satisfaction

of the harm suffered by the Event Sponsor and the Grantor, caused by the

condition giving rise to such second B.4. Breach Notice, twenty-five thousand

dollars ($25,000.00).

Upon receipt from Grantor of the third B.4. Breach Notice (and regardless of

whether the Repeat Community Event or Event Sponsor necessitating the third

B.4. Breach Notice is the same as the one(s) associated with the first or second

B.4. Breach Notice), Grantee shall elect to, (i) within a period of thirty (30)days from the date of receipt of such third B.4. Breach Notice, cure the failure

or breach, or (ii) within ninety (90) days from the date of receipt of such third

B.4. Breach Notice, pay the Event Sponsor as liquidated damages in satisfaction

of the harm suffered by the Event Sponsor and the Grantor, caused by the

condition giving rise to such third B.4. Breach Notice, one hundred thousand

dollars ($100,000.00).

Upon delivery to Grantee of a fourth B.4. Breach Notice (and regardless of

whether the Repeat Community Event or Event Sponsor necessitating such

fourth B.4. Breach Notice is the same as the one(s) associated with the first,second or third B.4. Breach Notice), (x) in the event no New Coliseum has

been completed and no Major Project estimated to cost at least ten million

dollars ($10,000,000) is in progress, Grantee shall be obligated, within one

hundred eighty (180) days of receipt of the fourth B.4. Breach Notice to pay to

the Grantor as liquidated damages in satisfaction of the harm suffered, the

difference between the purchase price ($8 million) and fair market value of the

Coliseum ($33,100,000) on the Effective Date which amount shall be reduced

by $1.2 million per year following the Effective Date (excluding any year in

which Grantee received a B.4. Breach Notice), and if such payment is not

timely made by Grantee, Grantor may at its option exercise its power of

termination or right of re-entry with respect to the Property, reserved in Grantor

from the fee simple on condition subsequent conveyed by Grantor to Grantee;

provided, however, that if Grantor has not enforced its power of termination or

right of re-entry with respect to the Property for a period of five (5) years after

the date of the fourth B.4 Breach Notice, then Grantors power of termination


22/40

or right of re-entry for purposes of this Section F.1(a) automatically shall be

waived for purposes of a Section B.4. breach and of no further force or effect,

but (y) in the event the New Coliseum has been completed or a Major Project

estimated to cost at least ten million dollars ($10,000,000) is in progress, then

for the fourth and each subsequent B.4. Breach Notice, Grantee shall, within

ninety (90) days from the date of receipt of such fourth or subsequent B.4.

Breach Notice, pay the Event Sponsor as liquidated damages in satisfaction of

the harm suffered by the Event Sponsor and the Grantor, caused by the

condition giving rise to such applicable B.4. Breach Notice, one hundred fifty

thousand dollars ($150,000.00).

Remembrance Event. Upon receipt from the Grantor of a Breach Noticeb.

regarding any provision of Section B.5. (a B.5. Breach Notice) for the first

time, Grantee shall elect to, (i) within a period of sixty (60) days from the date

of receipt of such first B.5. Breach Notice, cure the failure or breach, or(ii) within ninety (90) days from the date of receipt of such first B.5. Breach

Notice, pay the Grantor as liquidated damages in satisfaction of the harm

suffered by the Grantor, caused by the condition giving rise to the first B.5.

Breach Notice, ten thousand dollars ($10,000.00). For all purposes under this

Subsection F.1(b), if Grantee has elected to cure a failure or breach during any

applicable Cure Period provided (as the same may be extended), then any

monetary payment owed in the event that the breach is not cured shall not

become due and payable unless and until Grantee fails to cure the breach within

such Cure Period (as the same may be extended).

Upon receipt from Grantor of the second B.5. Breach Notice (and regardless of

whether the Remembrance Event necessitating such second B.5 Breach Notice

is the same as the one associated with the first B.5 Breach Notice), Grantee

shall elect to, (I) within a period of sixty (60) days from the date of receipt of

such second B.5. Breach Notice, cure the failure or breach, or (II) within ninety

(90) days from the date of receipt of such second B.5. Breach Notice, pay the

Grantor as liquidated damages in satisfaction of the harm suffered by the

Grantor, caused by the condition giving rise to such second B.5. Breach Notice,

twenty-five thousand dollars ($25,000.00).

Upon receipt from Grantor of the third B.5 Breach Notice (and regardless of

whether the Remembrance Event necessitating such third B.5. Breach Notice is

the same as the one(s) associated with the first or second B.5. Breach Notice),

Grantee shall elect to, (1) within a period of sixty (60) days from the date of

receipt of such third B.5. Breach Notice, cure the failure or breach, or


23/40

(2) within ninety (90) days from the date of receipt of such third B.5. Breach

Notice, pay the Grantor as liquidated damages in satisfaction of the harm

suffered by the Grantor, caused by the condition giving rise to such third B.5.

Breach Notice, one hundred thousand dollars ($100,000.00).

Upon delivery to Grantee of the fourth B.5. Breach Notice (and regardless of

whether the Remembrance Event necessitating such fourth B.5. Breach Notice

is the same as the one(s) associated with the first, second or third B.5. Breach

Notice), (x) in the event no New Coliseum has been completed and no Major

Project estimated to cost at least ten million dollars ($10,000,000) is in

progress, Grantee shall be obligated, within one hundred eighty (180) days of

receipt of the fourth B.5. Breach Notice to pay to the Grantor the difference

between the purchase price ($8 million) and fair market value of the Coliseum

($33,100,000) on the Effective Date which amount shall be reduced by $1.2

million per year following the Effective Date (excluding any year in whichGrantee received a B.5. Breach Notice), and if such payment is not timely made

by Grantee, Grantor may at its option exercise its power of termination or right

of re-entry with respect to the Property, reserved in Grantor from the fee simple

on condition subsequent conveyed by Grantor to Grantee; provided, however,

that if Grantor has not enforced its power of termination or right of re-entry

with respect to the Property for a period of five (5) years after the date of the

fourth B.5. Breach Notice, then Grantors power of termination or right of re-

entry for purposes of this Section F.1(b) automatically shall be waived for

purposes of a Section B.5. breach (as applicable) and of no further force or

effect, but (y) in the event the New Coliseum has been completed or a MajorProject estimated to cost at least ten million dollars ($10,000,000) is in

progress, then for the fourth and each subsequent B.5. Breach Notice, Grantee

shall, within ninety (90) days from the date of receipt of such fourth or

subsequent B.5. Breach Notice, pay the Event Sponsor as liquidated damages in

satisfaction of the harm suffered by the Event Sponsor and the Grantor, caused

by the condition giving rise to such applicable B.5. Breach Notice, one hundred

fifty thousand dollars ($150,000.00).

Qualifying Event and Grantor Event. Upon receipt from the Grantor of ac.

Breach Notice regarding any provision of Section B.2. or Section B.3 (a B2/B3

Breach Notice) for the first time, Grantee shall elect to, (i) within a period of

one hundred eighty (180) days from the date of receipt of such first B2/B3

Breach Notice, cure the failure or breach, or (ii) within one hundred eighty

(180) days from the date of receipt of such first B2/B3 Breach Notice, pay the

Grantor as liquidated damages in satisfaction of the harm suffered by the


24/40

Grantor, caused by the condition giving rise to the first B2/B3 Breach Notice,

five thousand dollars ($5,000.00). For all purposes under this Subsection

F.1(c), if Grantee has elected to cure a failure or breach during any applicable

Cure Period provided (as the same may be extended), then any monetary

payment owed in the event that the breach is not cured shall not become due

and payable unless and until Grantee fails to cure the breach within such Cure

Period (as the same may be extended).

Upon receipt from Grantor of the second B2/B3 Breach Notice (and regardless

of whether the failure to comply necessitating such second B2/B3 Breach

Notice is the same as the one associated with the first B2/B3 Breach Notice),

Grantee shall, (I) within a period of one hundred eighty (180) days from the

date of receipt of such second B2/B3 Breach Notice, cure the failure or breach,

or (II) within one hundred eighty (180) days from the date of receipt of such

second B2/B3 Breach Notice, pay the Grantor as liquidated damages insatisfaction of the harm suffered by the Grantor, caused by the condition giving

rise to such second B2/B3 Breach Notice, ten thousand dollars ($10,000.00).

Upon receipt from Grantor of the third B2/B3 Breach Notice (and regardless of

whether the failure to comply necessitating such third B2/B3 Breach Notice is

the same as the one(s) associated with the first or second B2/B3 Breach

Notice), Grantee shall, (1) within a period of one hundred eighty (180) days

from the date of receipt of such third B2/B3 Breach Notice, cure the failure or

breach, or (2) within one hundred eighty (180) days from the date of receipt of

such third B2/B3 Breach Notice, pay the Grantor as liquidated damages insatisfaction of the harm suffered by the Grantor, caused by the condition giving

rise to such third B2/B3 Breach Notice, twenty-five hundred thousand dollars

($25,000.00).

Upon delivery to Grantee of a fourth B2/B3 Breach Notice (and regardless of

whether the failure to comply necessitating such fourth B2/B3 Breach Notice is

the same as the one(s) associated with the first, second or third B2/B3 Breach

Notice), (x) in the event no New Coliseum has been completed and no Major


progress, Grantee shall be obligated, within one hundred eighty (180) days of

receipt of the fourth B2/B3 Breach Notice to pay to the Grantor one hundred

thousand dollars ($100,000.00), and if such payment is not timely made by

Grantee, Grantor may at its option exercise its power of termination or right of

re-entry with respect to the Property, reserved in Grantor from the fee simple on

condition subsequent conveyed by Grantor to Grantee; provided, however, that


25/40

if Grantor has not enforced its power of termination or right of re-entry with

respect to the Property for a period of five (5) years after the date of the fourth

B2/B3 Breach Notice, then Grantors power of termination or right of re-entry

for purposes of this Section F.1(c) automatically shall be waived for purposes

of a Section B.2. or Section B.3. (as applicable) breach and of no further force

or effect, but (y) in the event the New Coliseum has been completed or a Major


progress, then for the fourth and each subsequent B2/B3 Breach Notice, Grantee

shall, within ninety (90) days from the date of receipt of such fourth or

subsequent B2/B3 Breach Notice, pay the Event Sponsor as liquidated damages

in satisfaction of the harm suffered by the Event Sponsor and the Grantor,

caused by the condition giving rise to such applicable B2/B3 Breach Notice,

one hundred fifty thousand dollars ($150,000.00).

Upon the waiver, lapse, or expiration of Grantors powers of termination ord.rights of re-entry provided above in Section F.1(a), Section F.1(b), and Section

F.1(c), or upon the lapse or expiration of the obligations under this Declaration,

the breach of which could trigger Grantors powers of termination or rights of

re-entry provided in each such Section, then Grantee automatically shall be

vested with a fee simple absolute interest in the Property. Although it is the

intent of the parties that the vesting in Grantee of a fee simple absolute interest

in the Property pursuant to the terms of the preceding sentence shall be

automatic and self-executing, it is agreed that following such vesting, at the

request of any party (and at the expense of the requesting party), all parties

shall execute a recordable notice confirming such vesting, in form reasonablyacceptable to the parties, and the party requesting the same shall cause the same

to be recorded in the Forsyth County Registry.

Lawrence Joel and Veterans. With respect to any failure to comply with ore.

breach of any provision of Section C, Grantee shall have a period of one

hundred eighty (180) days from receipt of Grantors Breach Notice within

which to cure such breach. If Grantee shall fail to cure a breach of Section C

after giving of the Breach Notice and expiration of the Cure Period, then the

CityGrantor shall have the right to enter upon the Coliseum Property and have

reasonable access thereto for purposes of completing, or causing to be

completed, the cure of the condition(s) that were the subject of the Breach

Notice, and the Grantee shall reimburse all expenses incurred by the Grantor in

connection with such cure within thirty (30) days of Grantors notice to Grantee

that the cure has been completed, together with invoices for Grantors expenses.


26/40

Maintenance of Property. With respect to any failure to comply with or breachf.

of any provision of Section D.1, Grantee shall have a period of one hundred

eighty (180) days from receipt of Grantors Breach Notice within which to cure

such breach.

Winston-Salem Name, Tourism Events and Catch-all. With respect to anyg.

failure to comply with or breach of any provision of Section E.1, Section E.2,

Section E.3, Section E.4 or of any other Section of this Declaration for which

another cure period is not provided in this Section F.1, Grantee shall have a

period of one hundred twenty (120) days from Grantors written notification

within which to cure such breach.

DCF Signage. With respect to any failure to comply with or breach of anyh.

provision of Section E.5, Grantee shall have a period of three (3) days from

Grantors written notification within which to cure such breach, unless thenature of the breach is such that it cannot be reasonably cured within such three

(3) day period, in which case the Grantee shall notify Grantor that such

additional time is needed, at any time prior to the expiration of the three (3) day

period, and upon giving of such notice, Grantee shall be entitled to as much

additional time as may be reasonably required by Grantee in the exercise of due

diligence in endeavoring to cure such breach, provided that Grantee is diligently

pursuing a cure of such breach. Notwithstanding the foregoing provisions of

this Section F.1(h), in the event that an alleged breach of Section E.5 arises out

of the Coliseum marquee (or any replacement thereof) or out of the electronic

message board on the Parking Canopy (individually and collectively, theElectronic Signage) being inoperable, Grantee shall be entitled to a period of

five (5) days in which to exercise reasonable efforts to restore the Electronic

Signage to an operable condition, it being agreed that if Grantee has failed to

exercise reasonable efforts during such five (5) day period, then Grantor shall

be entitled to notify Grantee of its insufficient efforts to cure the alleged breach

of Section E.5 and Grantor shall thereupon be entitled to liquidated damages of

One Thousand Dollars ($1,000) per day remaining in the period in which DCF

promotional signage was to be displayed pursuant to Section E.5. Grantor

understands and agrees that Grantees non-performance of Section E.5 shall be

excused in the event that the Electronic Signage cannot, through exercise of

reasonable efforts, be restored to an operational condition during the five (5)

day period provided above. In the event that the Electronic Signage has

incurred substantial damage or has been destroyed and has not been restored by

the period in which DCF signage was to be displayed pursuant to Section E.5,

it is agreed that (x) in the case of the electronic message board on the Parking


27/40

Canopy, Grantees non-performance of Section E.5 shall be excused, and (y) in

the case of the Coliseum marquee, as long as Grantee is exercising reasonable

efforts to restore such marquee, Grantees non-performance of Section E.5 shall

be excused.

Each cure period provided above in this Section F.1 and any extensions thereto shall

hereinafter be referred to as a Cure Period.

2. Should the Grantee fail to cure any breach of Section B, Section C, Section D, or

Section E above after the giving of notice by Grantor required by Section F.1 and before

expiration of the applicable Cure Period, Grantor shall have the right to exercise any rights

and remedies available to Grantor in equity or at law as the result of such uncured breach.

3. Should Grantee need time in addition to the Cure Periods provided above in this

Section F to complete a cure, Grantee shall, at least ten (10) days prior to the expiration of theapplicable Cure Period, send a notice to Grantor (a) certifying that Grantee commenced to

cure within a reasonable time of receipt of the Breach Notice and has been diligently pursuing

such cure, and (b) covenanting to diligently pursue such cure to completion, and (c) providing

reasons why an extension of time is necessary to complete such cure. Upon timely delivery of

such notice to Grantor, the Cure Period applicable to the particular Breach Notice shall be

extended for such period of time as Grantee could be reasonably expected to effect such cure.

Section G. Notices.

Whenever any notice, demand or request is required or permitted under this Declaration, suchnotice, demand or request shall be in writing and shall be delivered by hand, be sent by

registered or certified mail, postage prepaid, return receipt requested, or be sent by nationally

recognized commercial courier for next business day delivery, to the addresses set forth below

for the respective signers hereof, or to such other addresses as are specified by written notice

given in accordance herewith, or shall be transmitted by facsimile to the number for each party

set forth below, or to such other facsimile number as is specified by written notice given in

accordance herewith. All notices, demands or requests delivered by hand shall be deemed

given upon the date so delivered; those given by mailing as hereinabove provided shall be

deemed given on the date of deposit with the commercial courier; those given by commercial

courier as hereinabove provided shall be deemed given on the date of deposit with thecommercial courier; and those given by facsimile shall be deemed given on the date of

facsimile transmittal. Nonetheless, the time period, if any, in which a response to any notice,

demand or request must be given shall commence to run from the date of receipt of the notice,

demand or request by the addressee thereof. Any notice, demand or request not received

because of changed address or facsimile number of which no notice was given as hereinabove

provided or because of refusal to accept delivery shall be deemed received by the party to


28/40

whom addressed on the date of hand delivery, on the date of facsimile transmittal, on the first

calendar day after deposit with commercial courier, or on the third calendar day following

deposit in the United States Mail, as the case may be.

If to the CityGrantor: City Manager

City of Winston-SalemSuite 170, City Hall101 N. Main StreetWinston-Salem, NC 27102-2511Facsimile: (336) 748-3060

With copy to: City AttorneyCity of Winston-SalemSuite 134, City Hall101 N. Main StreetWinston-Salem, NC 27101

Facsimile: (336) 748-3816

If to theGrantee: Wake Forest University Dept. of Athletics

P.O. Box 7265Winston-Salem, NC 27109Attn: Director of AthleticsFacsimile: (336) 758-6090

with a copy to: Wake Forest University Legal DepartmentP.O. Box 7656

Winston-Salem, NC 27109Attn: General CounselFacsimile: (336) 758-5933

Section H. Certain Definitions.

1. The term Alternative Site shall mean any other real property (i) owned by Grantee,

or any entity affiliated with Grantee, and (ii) within a one-half mile radius of the real property

described on Exhibit A attached hereto.

In the event Grantee elects to build the New Coliseum during the Base Term on an

Alternative Site, upon: (1) registration by Grantee of an instrument subjecting such Alternative

Site to the terms and conditions of this Declaration and redefining the term Property to

mean such Alternative Site, and (2) substantial completion of the construction of the New

Coliseum and the opening thereof (the Substitution Instrument), the real property

described in Exhibit A shall be automatically released from this Declaration. The parties


29/40

intend that in the event of Grantees registration of a Substitution Instrument, (I) Exhibit A

attached hereto shall be automatically amended to delete therefrom the description of the real

property set forth therein, and to include in its place a description of the Alternative Site, and

(II) the real property so deleted from Exhibit A shall be fully released from the effect of this

Declaration without any further action of the parties (it being their intent that the foregoing

matters would be self-executing upon registration of the Substitution Instrument), but, without

limiting the effect or generality of such intention of the parties, if requested by Grantee,

Grantor and Grantee shall execute appropriate documentation in recordable form to confirm

(a) the release of the real property described in Exhibit A from this Declaration, (b) the

submission of the Alternative Site to the terms and conditions of this Declaration, and (c) the

redefinition of the term Property to mean and refer to the Alternative Site, and shall cause

the same to be recorded in the Forsyth County Registry, and (III) this Declaration shall

otherwise remain unchanged and in full force and effect, it being agreed that the Substitution

Instrument will not operate to renew or extend any terms provided herein.

2. A Major Project consists of the planning, the conduct of any demolition, debris

removal and earth moving work, and the conduct of all construction work from

commencement through completion, of any of the following three types of projects:

undertaking a significant renovation of or a significant overhaul of a majora.

operating or infrastructure system(s) at the Coliseum or New Coliseum, or

making a significant modification (i.e., a modification that changes theb.

building footprint of the Coliseum or New Coliseum structure) to the Coliseum

or the New Coliseum, or

constructing the New Coliseum.c.

Completion of any Major Project shall be conclusively deemed to have occurred when

a certificate of occupancy or similar certificate of approval has been issued with respect to the

Major Project by the applicable governing authority having jurisdiction over construction at

the Property.

3. The term year as used in this Declaration (a) if modified by the word calendar

shall mean a period of time beginning on January 1 and ending on the following December

31, (b) if not modified by the word calendar shall mean a period of twelve months,

measured from the first day of the period referenced. For example, but not by way of

limitation, a year from the date of March 2, 2024, would begin on March 2, 2024 and

expire on March 1, 2025.

Section: I. Public Purpose Restrictions from 1969 Deed:


30/40

The covenants and restrictions of this Section I shall begin immediately following the

expiration of the Base Term (see Section B.1 for similar restrictions enforceable for the

duration of the Base Term) and shall not expire unless the New Coliseum, or any successor

New Coliseum, is constructed on an Alternative Site (and a Substitution Instrument is

recorded in accordance with Section H.1) at any time, and until such New Coliseum, or any

successor New Coliseum, has been demolished on the Alternative Site.

Substantially all of the Property shall be used, as set forth in the Deed Restrictions of 1969,

for sports, recreation, entertainment or cultural purposes, which overall benefits the public,

provided, however, Grantee shall not be limited to the form of sports, recreation, entertainment

or cultural activities now or previously operated on the Property.

During any Major Project, Grantee will keep Grantor advised as to the status and progress of

the Major Project and the estimated timeframe for resumption of performance of the purposes

contemplated by this Section I. If, in the sole discretion of Grantee, the Coliseum or the New

Coliseum is not capable of performing any of the purposes while the Grantee is undertaking aMajor Project on the Property, then (i) Grantee shall be excused from any failure or inability

to perform its obligations under Section I, and (ii) no Breach Notice can be given until the

earlier of completion of the Major Project, or Grantees determination in its reasonable

discretion that the Coliseum or New Coliseum, as the case may be, is capable of resuming

performance of the purposes contemplated by Section I.

Grantor shall have as its sole remedy for Grantees failure to comply with, or a breach of, any

provision of this Section I, after providing a Breach Notice to Grantee and allowing Grantee a

period of one (1) year from receipt of Grantors Breach Notice within which to cure such

failure or breach, the right to sue Grantee for specific performance of this Section I. In theevent Grantor institutes any legal action or proceeding for the enforcement of this Section I,

the prevailing party after a final adjudication shall be entitled to recover its reasonable

attorneys fees incurred in the preparation and prosecution of such action or proceeding.

lawrence joel veteran memorial coliseum proposed sale, restrictive covenant

Documents