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amphitheater, known as Samson Park, was also donated to the
Museum.
FGA is an outdoor amphitheater built in 1982 as an earth
sculpture. From the time of its development until it was donated
to the Museum in August 1986, the Museum used FGA approximately
five times each year for performing arts events.
On July 17, 1986, 3 weeks prior to the donation, the Museum
executed the FGA long-term facility lease agreement (the First
Lease) with MCA Concerts, Inc. (MCA), for the lease of FGA.
After entering into the First Lease, the Museum sent a copy of
the First Lease to the New York law firm of Baer Marks & Upham
for advice regarding any issues that might affect the Museum's
tax-exempt status.
By a letter dated February 2, 1987, Baer Marks & Upham
replied to the Museum's inquiry and made a number of suggestions
for changes in the lease. Thereafter, on August 7, 1987, the
Museum executed the first amended and restated FGA long-term
facility lease agreement (the Second Lease). Pursuant to their
agreement, after entering into the First Lease, MCA installed
individual seats, constructed a sound wall, and made other
improvements to FGA. After the renovations, FGA could
accommodate an audience of 18,000 people, and many popular
performers could, and did, put on shows at FGA.
The Second Lease provides that the Museum will collect rent
from MCA based on a fixed percentage of gross receipts, but that,
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