EXTENDED EVENTS MANAGEMENT AGREEMENT
FOR
THE XXXXXXX XXXXX XXXXXXXX PAVILION
BY AND BETWEEN
PAVILION PARTNERS
AND
THE WOODLANDS CENTER FOR THE PERFORMING ARTS
d/b/a XXXXXXX XXXXX XXXXXXXX CENTER
FOR THE PERFORMING ARTS
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS ................................................... 1
Section 1.01 Affiliate ............................................... 1
Section l.02 Artist .................................................. 1
Section 1.03 Available Gross Ticket Revenue .......................... 1
Section 1.04 Barrier Amount .......................................... 2
Section 1.05 Beverage Sponsors ....................................... 2
Section 1.06 Board ................................................... 2
Section 1.07 Box Seats ............................................... 2
Section 1.08 Budgeted Box Seat Sales ................................. 2
Section 1.09 Budgeted Sponsorship Revenues ........................... 3
Section 1.10 Civic Events ............................................ 3
Section 1.11 Competitive Outdoor Facility ............................ 4
Section 1.12 Events .................................................. 4
Section 1.13 Expansion Plans ......................................... 4
Section 1.14 Excessive Sound Level ................................... 4
Section 1.15 Facility ................................................ 5
Section 1.16 Facility Fee ............................................ 5
Section 1.17 Gross Concession Revenues ............................... 5
Section 1.18 Gross Receipts .......................................... 5
Section 1.19 House Seats ............................................. 6
Section 1.20 Industry Standards ...................................... 6
Section 1.21 Minimum Pavilion Generated Receipts ..................... 6
Section 1.22 Net Concession Revenues ................................. 7
Section 1.23 Owner ................................................... 7
Section 1.24 Owner Default ........................................... 7
Section 1.25 Pace .................................................... 7
Section 1.26 Parking/Access Areas .................................... 7
Section 1.27 Pavilion ................................................ 7
Section 1.28 Pavilion Default ........................................ 8
Section 1.29 Pavilion's Expansion Contribution ....................... 8
Section 1.30 Pavilion Generated Receipts ............................. 8
Section 1.31 Permanent Sign Revenues ................................. 8
Section 1.32 Plans ................................................... 8
Section 1.33 Primary Date ............................................ 8
Section 1.34 Prior Management Agreement .............................. 8
Section 1.35 Property ................................................ 9
Section 1.36 Qualified Group of T & P Events ......................... 9
Section 1.37 Restricted Area ......................................... 9
Section 1.38 Season .................................................. 9
Section 1.39 Season Ticket Revenue ................................... 9
Section 1.40 Sponsors ................................................ 9
Section 1.41 Sponsorship Revenue ..................................... 9
Section 1.42 Superior Facility ....................................... 10
Section 1.43 Term .................................................... 10
Section 1.44 T & P Events ............................................ 10
Section 1.45 Ticket Rebate Revenue ................................... 10
ARTICLE II - ENGAGEMENT AND RESPONSIBILITIES .............................. 11
Section 2.01 Retention of Pavilion ................................... 11
Section 2.02 Term .................................................... 11
Section 2.03 Duties and Responsibilities of Pavilion ................. 11
Section 2.04 Duties and Responsibilities of Owner .................... 14
Section 2.05 Sponsors ................................................ 16
Section 2.06 Pavilion's Monetary Obligations ......................... 17
Section 2.07 Events Related to Golf Tourney .......................... 19
ARTICLE II - FEES AND CHARGES ............................................. 19
Section 3.01 Facility Fee ............................................ 19
Section 3.02 Parking Charges and Fees ................................ 20
Section 3.03 Management Fee .......................................... 20
Section 3.04 Concession Fee Limitation ............................... 22
Section 3.05 Allocation of Season Ticket Revenue ..................... 22
ARTICLE IV - INSURANCE REQUIREMENTS ....................................... 22
Section 4.01 Owner's Obligation ...................................... 22
Section 4.02 Pavilion's Obligation ................................... 23
Section 4.03 Cooperation ............................................. 24
Section 4.04 Waiver of Subrogation Rights ............................ 24
Section 4.05 Types of Policies; Amounts of Coverage .................. 24
Section 4.06 Subcontractors' Policies of Insurance ................... 25
ARTICLE V - PROGRAMMING AND SCHEDULING .................................... 25
Section 5.01 Programming Quality and Control ......................... 25
Section 5.02 Scheduling .............................................. 27
Section 5.03 Board's Authority ....................................... 27
ARTICLE VI - DEFAULT AND REMEDY ........................................... 27
Section 6.01 Pavilion Default ........................................ 27
Section 6.02 Owner Default ........................................... 30
Section 6.03 Owner Remedies .......................................... 31
Section 6.04 Pavilion Remedies ....................................... 31
Section 6.05 Limitation on Certain Remedies .......................... 32
ARTICLE VII - MISCELLANEOUS AND GENERAL PROVISIONS ........................ 33
Section 7.01 Non-Compete Agreement ................................... 33
Section 7.02 Assignment .............................................. 34
Section 7.03 Destruction by casualty ................................. 35
Section 7.04 Special Rights to Terminate ............................. 36
Section 7.05 Rights to Names ......................................... 39
Section 7.06 Right to Co-Produce ..................................... 39
Section 7.07 Signage ................................................. 39
Section 7.08 Advertising and Marketing ............................... 39
Section 7.09 Party to Transactions ................................... 40
Section 7.10 Accounting Matters ...................................... 40
Section 7.11 Owner's Representations, Warranties and Covenants ....... 40
Section 7.12 Pavilion's Representations and Warranties ............... 42
Section 7.13 Good Faith Negotiations ................................. 42
Section 7.14 Pavilion's Other Activities ............................. 43
Section 7.15 Indemnification ......................................... 43
Section 7.16 Relationship of Parties ................................. 43
Section 7.17 Headings ................................................ 44
Section 7.18 Applicable Law .......................................... 44
Section 7.19 Counterparts ............................................ 44
Section 7.20 Entire Agreement and Modification ....................... 44
Section 7.21 Notices ................................................. 44
Section 7.22 Severability ............................................ 45
Section 7.23 Attorney's Fees ......................................... 45
Section 7.24 House Seats and Complimentary Tickets ................... 45
Section 7.25 Ticket Bartering ........................................ 46
Section 7.26 No Waiver ............................................... 47
Section 7.27 Replacement of Prior Management Agreement ............... 47
EXTENDED EVENTS MANAGEMENT AGREEMENT
[Xxxxxxx Xxxxx Xxxxxxxx Pavilion]
THIS EXTENDED EVENTS MANAGEMENT AGREEMENT (Agreement) is entered into this
21st day of November 1994 by and between THE WOODLANDS CENTER FOR THE PERFORMING
ARTS d/b/a XXXXXXX XXXXX XXXXXXXX CENTER FOR THE PERFORMING ARTS ("Owner), a
Texas non-profit corporation, and PAVILION PARTNERS ("Pavilion), a Delaware
general partnership. For and in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
meanings indicated below:
Section 1.01 Affiliate. "Affiliate" shall mean, with respect to a
corporation, any person which, directly or indirectly, controls or is controlled
by or is under common control with such corporation. For purposes of this
definition, the terms "control," "controlled by" and "under common control
with," with respect to any person, shall mean possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such person, whether through the ownership of voting securities or
by contract or otherwise.
Section 1.02 Artist. "Artist" shall mean, (i) with respect to an Event
which primarily features a live presentation or other live entertainment, the
performer, entertainer or actor, or group of performers, entertainers or actors
which performs at such live entertainment Event or (ii) with respect to an Event
which features a sound recording, transmitted images from another location or
any other form of presentation or entertainment which does not primarily include
live entertainment, the owner of the rights to exhibit such sound recording,
transmitted images or other form of presentation or entertainment.
Section 1.03 Available Gross Ticket Revenue. "Available Gross Ticket
Revenue" shall mean, with respect to the sale of tickets for any T & P Event,
gross ticket revenue received from the sale of tickets to such T & P Event less
(i) all applicable sales and other taxes, if any, (ii) outside charges such as
credit card commissions and customer convenience charges which may be charged
and retained by the ticket selling agent pursuant to the terms of the Facility's
ticket sales agreement, (iii) revenue generated from the Facility Fee and (iv)
parking fees and charges, if any. A portion of the Season Ticket Revenue for
each Season shall be allocated to each Event during such Season in accordance
with the provisions of Section 3.05 hereof, and the portion of Season Ticket
Revenue so allocated to each T & P Event shall be included as a part of the
"Available Gross Ticket Revenue" for each such T & P Event. The term "Available
Gross Ticket
Revenue" shall not include within its definition (x) revenue received from the
sale of tickets for Box Seats, (y) Ticket Rebate Revenue or (z) any portion of
Season Ticket Revenue which is not allocated to a T & P Event pursuant to the
provisions of Section 3.05 hereof.
Section 1.04 Barrier Amount. "Barrier Amount" shall mean, subject to the
adjustments provided for in the next succeeding sentence, $275,000.00. The
Barrier Amount shall be adjusted as of January 1, 1996 and each subsequent
January 1 thereafter during the term of this Agreement in the same proportionate
amount as any increase in the Consumer Price Index published by the Department
of Labor for the Houston Metropolitan Area for all wage earners (or equivalent
index chosen by Owner if such index is no longer published) during the
immediately preceding calendar year.
Section 1.05 Beverage Sponsors. "Beverage Sponsors" shall mean Sponsors
which are in the business of manufacturing and selling carbonated beverages,
soft drinks, malt beverages, wine or distilled spirits.
Section 1.06 Board. "Board" shall mean the Owner's Board of Directors.
Section 1.07 Box Seats. "Box Seats" shall mean the box seats included as a
part of the Facility, as may hereafter be modified or changed from time to time.
Prior to completion of the expansion of the Facility as described in Section
2.04(h) hereof, the Facility contains approximately 142 box seats in thirty-one
(31) four-seat boxes and three (3) six-seat boxes. Upon completion of expansion
of the Facility as described in Section 2.04(h) hereof, the Facility shall
contain approximately 166 box seats in thirty-seven (37) four-seat boxes and
three (3) six-seat boxes.
Section 1.08 Budgeted Box Seat Sales. "Budgeted Box Seat Sales" shall mean
the projected amount of revenue to be received from the sale of Box Seats during
a particular Season. For purposes of this Agreement the amount of the Budgeted
Box Seat Sales for each of the Seasons included in the Term is hereby stipulated
to be as follows:
Amount of Budgeted
Season Box Seat Sales
1995 $ 91,249.00
1996 $ 94,899.00
1997 $ 98,695.00
1998 $102,643.00
1999 $106,748.00
2000 $111,018.00
2001 $115,459.00
2002 $120,077.00
2003 $124,880.00
2004 $129,875.00
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2005 $135,070.27
2006 $140,473.00
2007 $146,092.00
2008 $151,935.00
2009 $158,012.00
Section 1.09 Budgeted Sponsorship Revenues. "Budgeted Sponsorship
Revenues" shall mean the projected aggregate amount of Sponsorship Revenue to be
received during a particular Season. For purposes of this Agreement the amount
of Budgeted Sponsorship Revenue for each of the Seasons included in the Term is
hereby stipulated to be as follows:
Amount of Budgeted
Season Sponsorship Revenue
1995 $ 168,730.00
1996 $ 175,479.00
1997 $ 182,498.00
1998 $ 189,798.00
1999 $ 197,390.00
2000 $ 205,286.00
2001 $ 213,497.00
2002 $ 222,037.00
2003 $ 230,919.00
2004 $ 240,155.00
2005 $ 249,762.00
2006 $ 259,752.00
2007 $ 270,142.00
2008 $ 280,948.00
2009 $ 292,186.00
Section 1.10 Civic Events. "Civic Events" shall mean all Events held,
conducted or presented at the Facility which are not T & P Events. Civic Events
shall include, without limitation, the following types of Events:
(a) cultural and community Events including, but not limited to
graduation exercises, convention events, meeting award ceremonies and
beauty pageants;
(b) Events which feature non-national touring attractions;
(c) local and regional performing arts and classical Events (such
as, by way of illustration, the Houston Symphony, the Houston Ballet, the
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Houston Grand Opera, Theatre Under the Stars and other similar types of
performances sponsored by local Living Arts Council); and
(d) Certain international, national or regional classical artists
and attractions which require the support of the local arts.
By way of illustration, and not by limitation, it is specifically agreed and
acknowledged that Events which feature classical artists such as guest
conductors (for example, Xxxx Xxxxxxxx), guest singers (for example, Xxxxxxxx
Xxxxxxx or Pavarotti), musicians (for example, Yani) and orchestras (for
example, Boston Pops) shall be included within the definition of "Civic Events."
Additionally, by way of illustration and not by limitation, it is agreed and
acknowledged that Events featuring contemporary artists (such as Xxxxx Xxxxxx,
Xxxxxx, Stills and Xxxx, Xxxxx Buffet and other contemporary artists) shall be
expressly excluded from the definition of "Civic Events."
Section 1.11 Competitive Outdoor Facility. "Competitive Outdoor Facility"
shall mean any permanent outdoor entertainment facility located in the
Restricted Area (excluding stadiums with a capacity of 40,000 or more), other
than the Facility, which is designed primarily to present touring and
professional Artists in concert to live audiences.
Section 1.12 Events. "Events" shall mean all cultural or entertainment
performances and presentations held, conducted or presented at the Facility
during which patrons are admitted into the Facility as spectators for such
entertainment or cultural presentation and performance, regardless of whether
the patrons are charged a cost of admission and regardless of whether the
presentation and performance features a live act or a prerecorded or simulcast
video or audio transmission or re-transmission. "Event" shall mean any one of
the Events. In order to avoid any uncertainty or ambiguity, it is hereby agreed
and acknowledged that, for purposes of determining the number of Events held
during any period of time at the Facility, separately ticketed performances
featuring the same Artist shall each be considered to be a separate and distinct
Event. For example, if an Artist were to appear at the Facility in five
separately ticketed performances on five consecutive nights, then those
performances shall be counted as five (5) Events for purposes of determining the
number of Events held or presented at the Facility.
Section 1.13 Expansion Plans. "Expansion Plans" shall mean the final
drawings, plans and specifications which have been prepared by Owner's architect
and general contractor in connection with the proposed expansion of the capacity
of the Facility to 13,000 persons, copies of which have been previously provided
to Pavilion by Owner.
Section 1.14 Excessive Sound Level. "Excessive Sound Level" shall mean
that sound level generated by an Artist In excess of 98 dBA (decibels on an
A-rated scale), with infrequent transient peaks not In excess of 102 dBA,
measured at the sound mixer of the Facility, or such other maximum sound level
as the Owner and Pavilion agree is reasonably prudent in order to conduct
performances at the Facility.
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Section 1.15 Facility. "Facility" shall mean the outdoor entertainment
facility owned by Owner known as the "Xxxxxxx Xxxxx Xxxxxxxx Pavilion" and which
is located on the Property. The Facility includes, among other things, a stage,
stage house, tent, mechanical and support systems for Events, back stage parking
and delivery areas, gates to limit access to ticketholders, restrooms,
concession stands, a lawn sound system, dressing rooms, medical and security
support facilities, 3,000 reserved seats and lawn seating for approximately
7,000 people. Notwithstanding anything to the contrary contained above, the
equipment included within the term "Facility" shall be the items listed on
Exhibit "C" attached hereto, and all other equipment which may be necessary to
conduct T & P Events shall be the responsibility of Pavilion to obtain. The
location and configuration of the Facility within the boundaries of the Property
are depicted and appropriately designated on the Site Plan attached hereto as
Exhibit "A." Subject to the provisions contained in the last sentence of Section
7.13 hereof, it is understood and agreed that the Facility may hereafter be
modified from time to time by the Owner.
Section 1.16 Facility Fee. "Facility Fee" shall mean a separate charge to
be collected with the sale of each ticket to all T & P Events, as more fully
described in Section 3.01 of this Agreement.
Section 1.17 Gross Concession Revenues. "Gross Concession Revenues shall
mean, with respect to a particular concession at the Facility, all gross
revenues generated from the sale or lease of such concession at the Facility
(net of applicable sales and other taxes); provided, however, the term "Gross
Concession Revenues" shall not include (i) revenues generated from the sale of
merchandise which exclusively carries Owner's identification or logo, (ii) the
value of any improvements placed at the Facility in kind by any concessionaire
and (iii) funds granted to Owner not in connection with T&P Events, such as
funds specifically for capital improvements or in support of Civic Events.
Section 1.18 Gross Receipts. "Gross Receipts" shall mean, for any Season,
all revenue generated, received or otherwise arising out of or in connection
with the T & P Events held, conducted or presented at the Facility during such
Season, except for (i) revenue generated from the Facility Fee, (ii) revenue
from the sale of Box Seats for such Season to the extent that such revenue (x)
arises out of the first $500.00 of proceeds from the sale of each four-seat or
six-seat box or (y) exceeds, in the aggregate, the Budgeted Box Seat Sales for
such Season, (iii) Sponsorship Revenue for such Season to the extent that such
Sponsorship Revenue exceeds the Budgeted Sponsorship Revenues for such Season,
(iv) Gross Concession Revenues for all concessions at the Facility, (v) revenues
derived from the operation of the Parking/Access Areas, if any, and (vi) Ticket
Rebate Revenue. Without limiting any of the foregoing, it is specifically agreed
and acknowledged that "Gross Receipts" shall include, without limitation, the
following:
(a) all Available Gross Ticket Revenues for T & P Events;
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(b) all (i) Sponsorship Revenue related to any T & P Event and (ii)
Permanent Sign Revenues up to, but not exceeding, the Budgeted Sponsorship
Amount for each Season;
(c) all revenue generated from the sale of Box Seats except for that
portion of such revenue which (x) arises out of the first $500.00 of
proceeds from the sale of each four-seat or six-seat box or (y) exceeds,
in the aggregate, the Budgeted Box Seat Sales for each Season; and
(d) sale revenues, licensing fees, royalty fees and similar revenues
received by Pavilion or Owner from the duplication, reproduction,
transmission or re-transmission of any T & P Event or series of T & P
Events in any form of media including, without limitation, sound
recordings, video tapes, closed circuit television and pay per view
television.
The term "Gross Receipts" shall be net of sales taxes and shall not include the
value of House Seats (except for any portion of the House Seats which may be
sold to the general public pursuant to Section 7.24(f) of this Agreement with
respect to any Event) or the value of any other complimentary tickets.
Section 1.19 House Seats. "House Seats" shall mean (a) with respect to
Pavilion, two four-seat boxes at the Facility and one six-seat box at the
Facility, (b) with respect to Owner, three four-seat boxes and one six-seat box,
(c) ten reserved seats at the Facility mutually designated by Owner and Pavilion
as the "house reserved seats" and (d) ten tickets for general admission lawn
seating.
Section 1.20 Industry Standards. When used herein, the term "industry
standards" shall mean and refer to the procedural practices used or followed at
above average permanent outdoor entertainment facilities which are similar in
size and purpose to the Facility.
Section 1.21 Minimum Pavilion Generated Receipts. "Minimum Pavilion
Generated Receipts" shall mean, for each Season, the minimum projected amount of
aggregate Pavilion Generated Receipts to be received during such Season. For
purposes of this Agreement, the amount of the Minimum Pavilion Generated
Receipts for each of the next fifteen (15) Seasons is hereby stipulated to be as
follows:
Minimum Pavilion
Season Generated Receipts
1995 $3,952,000.00
1996 $4,110,000.00
1997 $4,275,000.00
1998 $4,445,000.00
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1999 $4,623,000.00
2000 $4,808,000.00
2001 $5,000,000.00
2002 $5,200,000.00
2003 $5,408,000.00
2004 $5,625,000.00
2005 $5,850,000.00
2006 $6,084,000.00
2007 $6,327,000.00
2008 $6,580,000.00
2009 $6,844,000.00
Section 1.22 Net Concession Revenues. "Net Concession Revenues" shall
mean, with respect to a particular concession at the Facility, the Gross
Concession Revenues with respect to such concession net of any amounts payable
to, or retained by, the concessionaire responsible for the sale or lease of such
concession at the Facility.
Section 1.23 Owner. "Owner" shall mean The Woodlands Center for Performing
Arts, a Texas non-profit corporation (d/b/a Xxxxxxx Xxxxx Xxxxxxxx Center for
the Performing Arts).
Section 1.24 Owner Default. "Owner Default" shall mean the occurrence or
happening, at any time and from time to time, of any of the events listed in
Section 6.02 of this Agreement.
Section 1.25 Pace. "Pace" shall mean SM/PACE, Inc., a Texas corporation.
Section 1.26 Parking/Access Areas. "Parking/Access Areas" shall
collectively mean (i) the parking lots located on and off, in the vicinity of,
the Property (and used in connection with the Facility), (ii) the vehicular
driveways and accessways to, from, between and among the public roads serving
the Property, the parking lots on and off the Property and the Facility and
(iii) all pedestrian walkways and accessways to, from, between and among the
public roads serving the Property, the parking lots on and off the Property and
the Facility. The term "Parking/Access Areas" shall not include within its
definition the back stage parking and delivery areas Immediately adjacent to the
stage and stage house portions of the Facility, it being specifically agreed and
acknowledged that such back stage parking and delivery areas shall be included
as a part of the Facility. The location and configuration of the various
elements of the Parking/Access Areas are depicted and appropriately designated
on the Site Plans attached hereto as Exhibit "A."
Section 1.27 Pavilion. "Pavilion" shall mean Pavilion Partners, a Delaware
general partnership.
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Section 1.28 Pavilion Default. "Pavilion Default" shall mean the
occurrence or happening, at any time and from time to time, of any of the events
listed in Section 6.01(a) of this Agreement
Section 1.29 Pavilion's Expansion Contribution. "Pavilion's Expansion
Contribution" shall mean the $1,500,000 payment to be made by Pavilion to Owner
pursuant to the provisions of Section 2.06(a) hereof. For purposes of this
Agreement, references to the "unamortized portion of Pavilion's Expansion
Contribution" shall mean, as of any time, the unamortized portion of such
$1,500,000 payment at such time as if such payment were being amortized on a
straight-line basis from January 1, 1995 through December 31, 2009.
Section 1.30 Pavilion Generated Receipts. "Pavilion Generated Receipts"
shall mean, for each Season, all revenue generated during such Season from (a)
Gross Receipts, (b) the Facility Fee, (c) Sponsorship Revenue related to T&P
Events and from Permanent Sign Revenues to the extent such revenue exceeds the
Budgeted Sponsorship Amount for such Season, (d) revenue from the sale of Box
Seats to the extent such revenue exceeds the Budgeted Box Seat Sales for such
Season, (e) Gross Concession Revenues generated from the sale or lease of any
and all concessions at the Facility in conjunction with the T&P Events, (f)
Ticket Rebate Revenue which relates to T&P Events and (g) Season Ticket Revenue
which is allocated to T&P Events pursuant to the provisions of Section 3.05
hereof.
Section 1.31 Permanent Sign Revenues. "Permanent Sign Revenues" shall mean
all Sponsorship Revenues received in exchange for the right to maintain a
permanent or fixed sign at the Facility; provided, however, the term "Permanent
Sign Revenues" shall not include funds or proceeds received by Owner which are
attributable to the placement of a person's name on the Facility's "donor
board."
Section 1.32 Plans. "Plans" shall mean the final drawings, plans and
specifications which were used by Owners architect and general contractor in
connection with the construction of the Facility and the Parking/Access Areas.
Section 1.33 Primary Date. "Primary Date" shall mean, with respect to
either Owner or Pavilion, one of the forty (40) dates each Season which may be
selected pursuant to the provisions of Section 5.02 by such party as a date
which is primarily available to such selecting party at the Facility as
described in and governed by the provisions of Section 5.02 of this Agreement.
Section 1.34 Prior Management Agreement. "Prior Management Agreement"
shall mean that certain Events Management Agreement dated effective as of
February 14, 1990, and entered into by and between Owner and PACE Woodlands
Operating Company ("Pace"), a Texas corporation. All of Pace's rights, titles
and interests in, to and
8
under the Prior Management Agreement were transferred and assigned to Pavilion
effective as of April 1,1994.
Section 1.35 Property. "Property" shall mean that certain tract or parcel
of land located in the Woodlands, Texas, depicted on the Site Plans attached
hereto as Exhibit "A" and on which the Facility and certain of the
Parking/Access Areas are located.
Section 1.36 Qualified Group of T & P Events. "Qualified Group of T & P
Events" shall mean any two or more T & P Events held, presented or conducted at
the Facility during the same Season which feature the same Artist.
Section 1.37 Restricted Area. "Restricted Area" shall mean the
geographical area encompassed by a circle with a sixty (60) mile radius and with
the City of Houston's City Hall as the center point.
Section 1.38 Season. "Season" shall mean the calendar year. The first
Season under this Agreement shall commence on January 1, 1995 and continue
through December 31, 1995. Subsequent Seasons shall commence and end on January
1 and December 31, respectively, in subsequent calendar years.
Section 1.39 Season Ticket Revenue. "Season Ticket Revenue" shall mean,
with respect to a particular Season, the gross revenue received from the sale of
season tickets for all Events at the Facility for such Season less (i) all
applicable sales and other taxes, if any, (ii) outside charges such as credit
cards commissions and customer convenience charges which may be charged and
retained by the ticket selling agent pursuant to the terms of the Facility's
ticket sales agreement, if any, (iii) revenue generated from the Facility Fee,
if any and (iv) parking fees and charges, if any.
Section 1.40 Sponsors. "Sponsors" shall mean any and all persons, firms
and corporations which agree to pay sums of money to Pavilion or Owner in
exchange for the right to have its name associated with the Facility or any
particular Event to be held, conducted or presented at the Facility. Without
limiting the generality of the foregoing, the term "Sponsors" shall specifically
include within its definition all of the Beverage Sponsors.
Section 1.41 Sponsorship Revenue. "Sponsorship Revenue" shall mean,
subject to the provisions of Section 2.05(d), any and all sums paid to Pavilion
or Owner by a Sponsor which is directly related to the Facility or an Event
held, conducted or presented at the Facility, regardless of whether such amount
is tied to the amount of revenues generated from the Facility or generated from
a particular Event held, conducted or presented at the Facility. Notwithstanding
the foregoing, the term "Sponsorship Revenue" shall not include (i) funds or
payments received by the Owner from a donor for which the donor receives nothing
other than his name on the Facility's "donor board" and his name
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in the Facility's arts program or (ii) the value of any improvements to the
Facility received in kind by Owner from a non-exclusive Sponsor.
Section 1.42 Superior Facility. "Superior Facility" shall mean any
Competitive Outdoor Facility with a capacity of 120% or more of the Facility's
capacity.
Section 1.43 Term. "Term" shall mean the term of this Agreement, as
described in Section 2.02 of this Agreement.
Section 1.44 T & P Events. "T & P Events" shall mean all Events held,
conducted or presented at the Facility which feature any national touring and
professional Artist. By way of illustration and not by limitation, Events
featuring the following types of entertainment and Artists shall be included
within the definition of "T & P Events":
(a) contemporary music, rock and roll music, pops music and jazz
music (for example, Xxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxx, Stills and Xxxx);
(b) middle of the road performers (for example, Xxxx Xxxxxxx, Xxxx
Xxxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxx);
(c) theatrical performances (for example, national Broadway tours);
(d) country music (for example, Xxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxx
Xxxxxx);
(e) rhythm and blues music (for example, X. X. Xxxx, Xxxxxx Xxxxxx,
Xxxxxx Xxxx);
(f) gospel music and contemporary Christian music; and
(g) comedy performers (for example, Xxxxx Xxxxxx, Xxxxxxxx).
Section 1.45 Ticket Rebate Revenue. "Ticket Rebate Revenue" shall mean any
and all rebates, refunds, volume discounts or other payments payable by the
Facility's ticket selling agent pursuant to the provisions of the Facility's
ticket sales agreement and which is payable on account of the sale of tickets to
Events at the Facility.
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ARTICLE II
ENGAGEMENT AND RESPONSIBILITIES
Section 2.01 Retention of Pavilion. On and subject to the terms hereof,
Owner hereby engages and retains Pavilion to provide during the Term on an
exclusive basis the services necessary for the booking, scheduling, production,
promotion and presentation of all T & P Events. Pavilion hereby accepts such
engagement and agrees to carry out and fulfill the specific duties and
obligations imposed upon it pursuant to the terms of this Agreement
Section 2.02 Term. Subject to the earlier termination of this Agreement
pursuant to the rights and privileges granted in Sections 6.03(a), 6.04(a),
7.03(a) and 7.04 of this Agreement, the Term of this Agreement shall commence
upon execution hereof and continue until December 31, 2009.
Section 2.03 Duties and Responsibilities of Pavilion. Pavilion hereby
agrees to work directly with the Board, or its authorized representatives, in
connection with the carrying out and conducting of all of the following duties
and responsibilities during the Term of this Agreement:
(a) Subject to the provisions of Article V of this Agreement,
Pavilion shall schedule all T & P Events to be produced and presented at
the Facility during each Season.
(b) Pavilion shall fulfill its monetary obligations set forth in
Section 2.06 of this Agreement.
(c) Subject to the provisions of Section 7.09 of this Agreement,
Pavilion shall be responsible for negotiation and execution of all
contracts necessary for the production and presentment of each T & P Event
including, without limitation, all contracts with the Artists to perform
at such T & P Events. With respect to all contracts with Artists
performing at T & P Events at the Facility, Pavilion shall include a
provision which requires that the Artist use its best efforts to conclude
its performance by no later than 11:00 p.m. and use its best efforts to
not generate Excessive Sound Levels at all times during such Artist's
performance. Pavilion shall also be responsible for setting ticket prices
for the T & P Events, subject to the provisions contained in the
applicable contracts with Artists.
(d) Subject to the right created in Section 7.02 of this Agreement,
Pavilion shall bear the entire financial risk associated with production
of each T & P Event.
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(e) Pavilion shall be responsible for the advertising, marketing and
promoting of each T & P Event. All such advertising, marketing and
promoting efforts shall be conducted by Pavilion, in its discretion, in
accordance with industry standards so as to promote maximum attendance at
each T & P Event. Subject to the provisions of Section 7.08 of this
Agreement, all advertising and promotions of T & P Events shall include
references to the name of the Facility and reflect that the Owner is
presenter of the T & P Events. Pavilion covenants and agrees that the
requirements of the immediately preceding sentence shall be fulfilled,
from time to time, in a manner as may be required or necessary to maintain
the tax exempt status of Owner.
(f) Pavilion shall be responsible for, and will pay or cause to be
paid, all costs directly related to the production, booking, staging,
promotion and presentation of all T & P Events during the Term of this
Agreement.
(g) With respect to food and beverage service to be offered at the
Facility for its patrons, Pavilion shall:
(i) advise Owner, upon request, in developing a detailed
request for proposal for Owner to present to various concessionaires
who are in the business of providing food and beverage services at
entertainment facilities for purposes of obtaining bids from such
concessionaires;
(ii) advise Owner, upon request, in the negotiation of each
food and beverage concessionaire's contract for all Events at the
Facility; and
(iii) work with each food and beverage concessionaire at each
T & P Event (and such Civic Events as Owner may request) in order to
coordinate the food and beverage menu at such Event, and the
staffing and implementation of sales all in a manner which will
compliment the specific performance at such Event.
(h) With respect to merchandise concessionaires at the Facility,
Pavilion shall:
(i) advise Owner, upon request, in developing a detailed
request for proposal for Owner to present to various concessionaires
who are in the business of providing services necessary for the sale
of merchandise at entertainment and cultural events;
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(ii) advise Owner, upon request, in negotiation of each
concessionaire's contract for all Events at the Facility; and
(iii) advise Owner, upon request, in its efforts pertaining to
the successful sales of merchandise during all Events.
(i) Pavilion shall be responsible for soliciting proposals for,
presenting the alternatives to Owner, and obtaining, subject to the
Board's approval thereof, a master ticketing agreement with a first-class
ticket selling agency for all Events to be held, conducted or presented at
the Facility. It is hereby specifically agreed and acknowledged that the
master ticketing agreement for the Facility cannot grant exclusive rights
for the sale of tickets to all Civic Events, since some Artists at Civic
Events may have other ticket selling outlet obligations.
(j) Pavilion shall be responsible for soliciting, obtaining and
contracting for all Sponsors for the T & P Events. Notwithstanding the
fact that Owner shall be responsible for soliciting, obtaining and
contracting for all Sponsors for Civic Events (as set forth in Section
2.04(g) of this Agreement), it is specifically agreed and acknowledged
that Pavilion shall have the exclusive right, authority and duty to obtain
all Beverage Sponsors for all Events to be conducted, held or presented at
the Facility during the Term, subject to Pavilion's agreement contained in
Section 2.05(c) of this Agreement.
(k) [Intentionally Deleted]
(l) Pavilion shall apply for and maintain all required licenses and
permits for the carrying on of the business required to be conducted by it
under this Agreement and shall conduct all of its activities under this
Agreement in accordance with all applicable federal, state and local laws,
rules and regulations as well as any rules and regulations imposed upon it
by Owner pursuant to the terms of this Agreement. Where legally
permissible, all such licenses and permits shall be made expressly
assignable to Owner.
(m) Pavilion, at its sole cost and expense, shall cause its staff
utilized in connection with carrying out its duties hereunder, to wear
uniforms as may be reasonably approved by Owner.
(n) [Intentionally Deleted]
(o) Pavilion shall be obligated to pay to Owner all of the
out-of-pocket costs actually incurred by Owner for technical assistance
and staff
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required for the operation of the sound reinforcement equipment located on
the lawn of the Facility with respect to the seventeenth (17th) T&P Event
of each Season and all of the T & P Events thereafter during such Season.
Section 2.04 Duties and Responsibilities of Owner. Owner hereby agrees and
covenants with Pavilion as follows:
(a) Owner shall be responsible for providing sufficient parking
facilities within reasonable walking distance of the Facility to
accommodate the capacity of the Facility in accordance with industry
standards. Owner shall cause the Parking/Access Areas to be adequately
lighted in accordance with industry standards and the Plans.
(b) Owner shall be responsible for or shall cause all traffic
control, security, cleanup and maintenance of the Parking/Access Areas
during all Events at all times.
(c) Owner shall be solely responsible, at its sole cost and expense,
for the upkeep and maintenance of the Facility to ensure that it remains a
first class permanent outdoor entertainment facility in accordance with
industry standards throughout the Term of this Agreement. The provisions
of the preceding sentence shall not negate the obligation of Pavilion to
reimburse Owner pursuant to Section 2.06(e) hereof for the reasonable
costs incurred by Owner in fulfilling the responsibilities set forth in
Section 2.04(k) hereof.
(d) Owner shall be solely responsible for the booking, scheduling,
production, presentment and promotion of all Civic Events.
(e) At Owner's option, Owner may utilize, at Civic Events, the same
staff used by Pavilion at the T & P Events.
(f) Owner shall be responsible for soliciting, obtaining and
contracting for all Sponsors at all Civic Events, except for the Beverage
Sponsors (subject to the provisions of Section 2.05(c)).
(g) Throughout the Term of this Agreement, Owner shall be obligated
to (x) maintain a sufficient number of lawn chairs to be held for rental
at the Facility and (y) maintain the lawn sound enhancement equipment
currently used at the Facility in good working order and provide
sufficient technical and staff assistance as may be necessary for the
operation of the lawn sound enhancement equipment at all Events at the
Facility.
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(h) Owner shall substantially complete, or cause to be completed,
expansion of the Facility to a seating capacity for 13,000 people in
accordance with the Expansion Plans on or before April 15, 1995 (Expansion
Deadline"). Owner hereby acknowledges that Pavilion shall, in reliance
upon Owner's obligations set forth in this Section 2.04(h), book Events at
the Facility to occur after the Expansion Deadline and that Owner shall be
responsible for indemnifying Pavilion for any loss or costs incurred by
Pavilion should it be required to cancel or move any such Event as a
result of Owner's failure to complete the expansion of the Facility in
accordance with the Expansion Plans on or before the Expansion Deadline.
In that regard, Pavilion hereby agrees that it will use its best efforts
to mitigate damages with respect to costs or losses which may be incurred
because of Owner's failure to cause the completion of the expansion of the
Facility on or before the Expansion Deadline by attempting to move any
such affected Events to other venues, if possible.
(i) Owner shall provide the technical assistance and staff required
for the operation of the sound reinforcement equipment located on the lawn
of the Facility for all T&P Events. For the first sixteen (16) T&P Events
of each Season, Owner shall provide such assistance and staff at no cost
to Pavilion. Owner shall be reimbursed pursuant to Section 2.03(o) for its
out-of-pocket costs related to the provision of such assistance and staff
with respect to the seventeenth T&P Event of each season and all T&P
Events thereafter during such Season.
(j) Owner shall provide all staff, labor and facilities necessary to
rent lawn chairs to patrons attending T&P Events.
(k) Subject to Section 2.06(e) hereof, at each T & P Event during
the Term, Owner shall:
(i) provide, or cause to be provided, such reasonable and
necessary security services as may be required in accordance with
industry standards for the type of Event being conducted;
(ii) provide, or cause to be provided, such necessary labor or
services as may be required in accordance with industry standards to
cause the Facility to be ready for such T&P Event (including
cleaning and staging services);
(iii) provide, or cause to be provided, such reasonable and
necessary services or labor in accordance with industry standards as
may be necessary to assist in the orderly access to the Facility by
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all patrons and the orderly seating of such patrons within the
Facility; and
(iv) provide, or cause to be provided, such reasonable and
necessary services or labor as may be required in accordance with
industry standards to clean the Facility after such T & P Event.
Section 2.05 Sponsors.
(a) Subject to the provisions of Sections 7.09 and 2.05(c) of this
Agreement, Pavilion shall have the right to negotiate terms of agreements
with Sponsors which will grant to Sponsors such media rights with respect
to those Events sponsored by them and rights to display signs at those
Events sponsored by them as is deemed reasonable and necessary by Pavilion
in accordance with industry standards; provided, however, that (i) the
right to place signs at the Facility shall be subject to the provisions of
Section 7.07 hereof and (ii) signs or other sponsorship arrangements that
include references to cigarettes or other tobacco products shall be
prohibited without Owner's consent.
(b) Owner agrees and acknowledges that in order to obtain Beverage
Sponsors for the Facility and the Events to be held, conducted or
presented at the Facility, Pavilion may be required to grant to such
Beverage Sponsors the following rights throughout the entirety of each
Season for which it is a Sponsor:
(i) with respect to non-alcoholic Beverage Sponsors only, the
exclusive right to sell its type of beverage at the Facility;
(ii) the right to maintain a sign at the Facility to the
exclusion of any other purveyor of its type of beverage, subject to
the provisions of Section 7.07 of this Agreement; and
(iii) the right to be prominently included in all advertising
and promotion efforts in connection with Events at the Facility to
the exclusion of competitive purveyors of its type of beverage.
(c) Notwithstanding the provisions of Sections 2.03(j) or 2.05(b),
Pavilion hereby agrees to use its best efforts, in connection with the
negotiation of the terms of agreements with Beverage Sponsors to exclude
from their exclusivity rights, certain sponsorship dates which would allow
a competitive Beverage Sponsor certain rights for particular Civic Events,
as may be requested by Owner.
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(d) If Pavilion is entitled to receive any national tour sponsorship
proceeds in its capacity as a producer of a national tour event for a
particular Artist, all such amounts shall be excluded from Sponsorship
Revenue and Owner shall have no right, title or interest in and to any
portion of such national tour sponsorship proceeds.
(e) Any cost associated with the purchase, erection or installation
of a Sponsor's sign at the Facility which is not paid by such Sponsor
shall be borne jointly by Owner and Pavilion in the same percentage and
proportion as Sponsorship Revenue is shared between Owner and Pavilion.
(f) Reference is made to the fact that Pavilion has previously
installed certain video screens and equipment ("video equipment") at the
Facility at Pavilion's sole cost and expense. Pavilion shall be
responsible for maintaining all such video equipment in good condition.
Ownership of such video equipment shall be exclusively retained by
Pavilion. Owner shall have the right to use such video equipment at all
Civic Events subject to reimbursement to Pavilion of direct costs, if any,
associated with the operation thereof. No advertising shall be permitted
on such video equipment. Any revenues that may be received or derived from
such video equipment shall be deemed to be, for all purposes hereof,
Sponsorship Revenue related to T&P Events.
(g) Owner shall be entitled to receive or retain all Sponsorship
Revenue (other than Permanent Sign Revenues) which is either directly
related to the presentation of a Civic Event or which is appropriately
allocated, on a pro rata basis, to a Civic Event.
(h) Subject to any restrictions in the sponsorship agreements for
T&P Events at the Facility, Owner shall have the right and option to
permit Sponsors of Civic Events (x) the right to maintain signs at the
Facility continuously and (y) a name and title sponsorship identification
in all print and electronic media for any such Civic Events.
Section 2.06 Pavilion's Monetary Obligations.
(a) In consideration for Owner's agreement to enlarge the Facility's
capacity pursuant to the provisions of Section 2.04(h) hereof, Pavilion
shall pay to Owner a lump sum amount of $1,500,000 to be applied by Owner
towards the costs of expanding the Facility's capacity. The amount to be
paid by Pavilion to Owner pursuant to the provisions of the immediately
preceding sentence shall be payable in two installments as follows:
17
(i) $750,000 shall be payable within seven (7) days after
execution of this Agreement.
(ii) $750,000 shall be payable upon completion of all
construction work and activities related to the expansion of the
Facility in accordance with the Expansion Plans.
(b) In consideration for Owner's agreement to discontinue Pavilion's
obligation to produce Benefit Events (as such term is defined in the Prior
Management Agreement) as was required pursuant to the terms of the Prior
Management Agreement, Pavilion shall pay $100,000 to Owner for each Season
included in the Term. Each Season's payment pursuant to this Section
2.06(b) shall be paid in four equal installments of $25,000 each, payable
on April 15, June 15, August 15, and October 15 of such Season.
(c) As a charitable contribution to Owner, and in lieu of any other
obligation (express or implied) to make charitable contributions to Owner,
Pavilion shall, for each Season included in the Term, contribute to Owner
an amount equal to (i) $1.00 multiplied by (ii) the amount by which the
total number of tickets sold (excluding complimentary tickets) to T & P
Events during such Season exceeds 275,000.
(d) The following provisions shall apply with respect to the
potential of Sponsorship Revenues for failure to satisfy a Sponsor's
requirement to present a certain minimum number of T&P Events at the
Facility during a particular Season:
(i) If, for any Season, (i) an Approved Sponsor Show
Requirement (as hereinafter defined in clause (iii) of this Section
2.06(d)) is not satisfied, for any reason other than (x) the
occurrence of a Material Casualty (as such term is defined in
Section 7.03(b) hereof) or (y) programming and operating
restrictions imposed by Owner pursuant to the provisions of Section
5.01 hereof and (ii) the Owner is required to forfeit all or a
portion of the Sponsorship Revenues related to such Season as a
result thereof, then Pavilion shall be obligated and responsible to
pay and reimburse to Owner the amount of such forfeited Sponsorship
Revenues.
(ii) To avoid any uncertainty or ambiguity, it is specifically
agreed, stipulated and acknowledged that If a Sponsor should
exercise a right to terminate its sponsorship obligation with
respect to subsequent Seasons as a result of the failure to satisfy
an Approved Sponsor Show Requirement for a particular Season,
18
Pavilion shall have no obligation, responsibility or liability to
Owner for the loss of such Sponsorship Revenues as they relate to
those subsequent Seasons.
(iii) As used herein, the term "Approved Sponsor Show
Requirement" shall mean any contractual requirement that a certain
number of T&P Events be presented at the Facility during a
particular Season which is imposed by a Sponsor and which is
specifically authorized and approved by Pavilion. For purposes
hereof, the requirement imposed by Xxxxxx Brewing Company to present
a certain number of T&P Events during the 1995 Season shall be
deemed to have been approved and authorized by Pavilion as an
Approved Sponsor Show Requirement for all purposes hereof.
(e) Within thirty (30) days of invoice from Owner, Pavilion shall
reimburse to Owner the reasonable costs of providing the services
described in Section 2.04(k) hereof (including the uniform costs for the
persons providing those services); provided, however, Pavilion's
obligation to so reimburse such costs shall not exceed the amount paid by
Pavilion for similar services at Pavilion's other first class outdoor
entertainment facilities which are comparable to the Facility.
Section 2.07 Events Related to Golf Tourney. Notwithstanding anything to
the contrary contained herein, the Shell Houston Open (or other name referring
to the annual PGA golf tournament held in The Woodlands, Texas) and all benefits
held in conjunction with it and the Xxxxxxx Xxxxx Golf Tournament and Benefit,
or substitute event, held in conjunction therewith each year, shall be deemed to
be Civic Events for purposes of this Agreement. Pavilion shall not be entitled
to receive any revenues or fees from, nor shall Pavilion have any duties or
responsibilities with respect to, the promotion, production or presentment of
the Shell Houston Open, the related benefits or the Xxxxxxx Xxxxx Golf
Tournament and Benefit, unless a separate written agreement is entered into
between Pavilion and the presenter of the Shell Houston Open.
ARTICLE III
FEES AND CHARGES
Section 3.01 Facility Fee. All tickets for T & P Events shall include a
separate charge, herein called a "Facility Fee" added to the regular cost of
such ticket. The amount of the Facility Fee shall be set, from time to time, by
Pavilion, in its sole discretion, subject to the reasonable approval of Owner.
The amount of the Facility Fee shall be no less than $2.50 per ticket.
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Section 3.02 Parking Charges and Fees. Owner shall have the right, at its
sole option and election, to charge for parking of patrons' automobiles at any
Event at the Facility, including, without limitation, any and all T & P Events,
and the proceeds of such parking charges shall be the sole property of Owner and
shall be excluded from the definition of "Gross Receipts" for purposes of this
Agreement. Pavilion shall be obligated to pay to Owner a fee of $425.84 for each
T & P Event during the Term as payment for Owner's services provided in
connection with management, security and cleanup of the Parking/Access Areas.
Such $425.84 fee shall be increased by four percent (4%) for each Season
following the 1995 Season.
Section 3.03 Management Fee. For and in consideration of Pavilion's
agreement to carry out and conduct the duties and responsibilities described in
this Agreement, Owner hereby agrees that Pavilion shall be paid each Season
during the Term a management fee for producing and managing T & P Events equal
to the aggregate of the following:
(a) eighty-seven and one-half percent (87-1/2%) of all Gross
Receipts; provided, however, if and to the extent that Available Gross
Ticket Revenue for any T & P Event or any Qualified Group of T & P Events
should exceed the Barrier Amount, then Pavilion shall receive ninety-three
and three-quarters percent (93.75%) of the portion of the Available Gross
Ticket Revenues for such T & P Event or such Qualified Group of T & P
Events which exceeds the Barrier Amount;
(b) (x) fifty percent (50%) of all amounts received pursuant to the
first $1.50 per ticket portion of the Facility Fee, (y) twenty-five
percent (25%) of the next $1.00 per ticket portion of the Facility Fee and
(z) fifty percent (50%) of all other amounts received pursuant to the
Facility Fee;
(c) fifty percent (50%) of all amounts received during any Season
from the sale of Box Seats to the extent that such amounts exceed, in the
aggregate, the Budgeted Box Seat Sales for such Season;
(d) fifty percent (50%) of all (i) Sponsorship Revenues related to
T & P Events and (ii) Permanent Sign Revenues received during any Season
to the extent that the combined amount of such revenues exceed, in the
aggregate, the Budgeted Sponsorship Revenues for such Season;
(e) fifty percent (50%) of any Season Ticket Revenue which is not
allocated to an Event pursuant to the provision of Section 3.05 hereof;
(f) eighty-seven and one-half percent (87-1/2%) of all Ticket Rebate
Revenue which is payable on account of T & P Events; and
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(g) a percentage of the revenues generated from the sale or rental
of concessions at the Facility in conjunction with T & P Events in
accordance with the following provisions:
(i) With respect to the sale of food and non-alcoholic
beverages (exclusive of candy) at T & P Events, the greater of (x)
sixty-two percent (62%) of the Net Concession Revenues received or
retained by Owner after payment of all fees to the concessionaire or
(y) twenty and five tenths percent (20.5%) of the Gross Concession
Revenues.
(ii) With respect to the sale of candy at T & P Events, the
greater of (x) sixty-two percent (62%) of the Net Concession
Revenues received or retained by Owner after payment of all fees to
the concessionaire or (y) nine and three-tenths percent (9.3%) of
the Gross Concession Revenues.
(iii) With respect to the sale of beer, wine and other
alcoholic beverages at T & P Events, the greater of (x) sixty-two
percent (62%) of the Net Concession Revenues received or retained by
Owner after payment of all fees to the concessionaire or (y) twenty
and five-tenths percent (20.5%) of the Gross Concession Revenues.
(iv) With respect to the sale of artist related merchandise at
T & P Events, fifty percent (50%) of all amounts remaining out of
the Gross Concession Revenues after payment of (x) royalties and
other fees due to Artists and (y) any commissions or other fees
payable to the concessionaire selling such artist related
merchandise.
(v) With respect to the rental of lawn chairs at T & P Events,
after Owner has recouped any then unreimbursed investment in lawn
chairs at the Facility, forty percent (40%) of the Gross Concession
Revenues arising out of or relating to the rental of lawn chairs at
T&P Events. Pavilion acknowledges that Owner may be required to
repair or replace the inventory of lawn chairs at the Facility from
time to time and, as a result, Owner's unreimbursed investment in
lawn chairs at the Facility may vary from time to time.
All amounts due and payable to Pavilion pursuant to this Section 3.03 shall be
payable by Owner upon receipt by Owner of the corresponding revenue or payment
giving rise to Pavilion's right to receive such amount. Amounts payable to
Pavilion pursuant to clauses (a) and (c) above, to the extent that such payments
relate to the revenue generated from the sale of Box Seats, shall be payable
each Season on the last of each
21
month during that Season, commencing on January 31, out of the proceeds from the
sale of Box Seats received during such month.
Section 3.04 Concession Fee Limitation. Owner hereby covenants and agrees
with Pavilion that in no event shall (i) the fee to be paid to or, if
applicable, the amount of revenue to be retained by, the food and beverage
concessionaires at the Facility for the T & P Events exceed sixty-seven percent
(67%) of such concessionaires' respective gross sales (net of sales tax) and
(ii) the fee payable to or, if applicable, the amount of revenue to be retained
by, the merchandise concessionaires at the Facility for the T & P Events exceed
seventy-seven and one-half percent (77-1/2%) of such concessionaires' respective
gross sales (net of sales tax).
Section 3.05 Allocation of Season Ticket Revenue. With respect to each
Event held, presented or performed at the Facility during any Season, a portion
of the Season Ticket Revenue for such Season shall be allocated to such Event in
an amount equal to the product of (x) the number of season tickets sold for such
Season and (y) the face value of tickets for reserved seats to such Event.
ARTICLE IV
INSURANCE REQUIREMENTS
Section 4.01 Owner's Obligation. Owner shall, at its own expense, obtain
and maintain throughout the Term of this Agreement the following policies of
insurance:
(a) Fire and extended coverage insurance on the Facility including,
without limitation, all fixtures, equipment and personal property located
within the Facility for which Owner is legally responsible, in an amount
equal to one hundred percent (100%) of the replacement cost thereof (and
full builder's risk coverage prior to completion of the Facility).
(b) Business interruption insurance insuring against lost revenue
resulting from the Facility not being useable at any time as a result of
the occurrence of an insurable peril, which insurance shall specifically
include by its coverage the loss of revenue which would be suffered by
Pavilion should the Facility not be useable at any time as a result of the
occurrence of an insurable peril.
(c) Comprehensive general liability insurance insuring against
losses due to personal or bodily injury or death of any person and
property damage for occurrences on or in the Parking/Access Areas, which
shall apply as primary, and not contributing, coverage for any claim
relating to activities on the Parking/Access Areas; provided that Pavilion
acknowledges that Owner may require a third party contractor who is
responsible for the
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Parking/Access Areas to provide the insurance required pursuant to this
Section 4.01(c), but Owner shall remain responsible for causing such
insurance obtained by such third party contractor to remain in full force
and effect and to meet all of the requirements of this Article IV.
(d) Comprehensive general liability insurance insuring against loss
due to personal or bodily injury or death of any person and property
damage for occurrences on or in the Facility during the, conducting of all
Civic Events and at all other times during which a T & P Event is not
being conducted. Owner, at its option, may fulfill its obligation under
this Section 4.01(d), if possible, by participating in the blanket general
liability insurance policy of Pavilion upon the payment of a mutually
agreed upon premium to Pavilion. The policy of insurance required to be
obtained and maintained pursuant to this Section 4.01(d) shall apply as
primary, and not contributing, coverage for any claims relating to or
occurring on or in the Facility during the conducting of any Civic Event
and at all other times during which a T & P Event is not being conducted.
The business interruption insurance required to be obtained and maintained
pursuant to the provision of Section 4.01(b) of this Agreement shall name
Pavilion as a loss payee.
Section 4.02 Pavilion's Obligation. Pavilion shall, at its own expense,
obtain and maintain throughout the Term of this Agreement, the following
policies of insurance:
(a) Comprehensive general liability insurance insuring against loss
due to personal or bodily injury or death of any person and for property
damage for occurrences on or in the Facility during the conducting of all
T & P Events, which shall apply as primary, and not contributing, coverage
for any claims arising out of or relating to any activities on or in the
Facility during the conducting of any T & P Event.
(b) Worker's compensation insurance, if required by applicable law,
for all persons employed by, or subcontracting with, Pavilion for any
purpose at the Facility or in connection with the business conducted
pursuant to this Agreement, and Pavilion shall pay any and all
contributions, taxes and costs of such insurance and benefits payable
thereunder which are required to be withheld and/or paid by any employer
under the provisions of any applicable present or future law, ruling and
regulation.
Additionally, Pavilion shall coordinate in obtaining either for its own behalf
or for that of any concessionaire, fire and extended coverage insurance on
merchandise owned by Pavilion or such concessionaire and all other personal
property which Pavilion is legally responsible for and which is used in
connection with any T & P Event.
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Section 4.03 Cooperation. Pavilion and Owner shall each provide to the
other, copies of insurance binders (or certificates in lieu thereof) with
respect to each of the insurance policies to be maintained by each in compliance
with the provisions of this Article IV prior to the date on which such policies
are to be effective and copies or certificates of such policies as soon as
possible after the effective date of such policies. Each policy of insurance
required to be obtained and maintained by Pavilion pursuant to the provisions of
this Article IV shall name Owner as an additional insured except for worker's
compensation insurance provided pursuant to Section 4.02(b) of this Agreement.
With respect to each policy of insurance required to be obtained and maintained
by Owner pursuant to the provisions of this Article IV, Pavilion shall be named
as an additional insured except for the policy of insurance required by the
provisions of Section 4.01(a) of this Agreement. Each binder and policy required
to be obtained and maintained pursuant to this Article IV shall provide that it
may not be amended, modified or cancelled without thirty (30) days' notice to
both Owner and Pavilion. If either party hereto fails to provide insurance as
required hereby, the other party, upon ten (10) days' notice to such failing
party, may provide such insurance as such failing party's agent and in such
failing party's name, and until such time as such failing party so insures
(which for the purpose of this provision may only be on a subsequent renewal
date). The party who has failed to obtain a policy of insurance as required
hereby shall reimburse the other party who insures on its behalf for premiums
paid for same plus interest at the lesser of eighteen percent (18%) per annum or
the highest lawful rate from the date of payment until the date of repayment.
Section 4.04 Waiver of Subrogation Rights. Owner and Pavilion each waive
all rights of recovery, claim, action or cause of action against the other, its
agents, officers or employees for any loss or damage that may occur at the
Facility, on the Parking/Access Areas or otherwise on the Property which may
arise by reason of fire, the elements or any other cause which could be insured
against under the terms of standard fire and extended coverage insurance
policies or under comprehensive general liability coverage, regardless of cause
or origin, including negligence of the other party hereto, its licensees and
invitees, and covenants that no insurer shall hold any right of subrogation
against such party. Owner and Pavilion shall each cause the respective policies
of insurance required to be obtained and maintained pursuant to this Article IV
to include an endorsement which specifically provides that the insurer
thereunder has waived its rights of subrogation as referred to in this Section
4.04.
Section 4.05 Types of Policies: Amounts of Coverage. All policies of
insurance which either party hereto must provide pursuant to the provisions of
this Agreement shall be to the best of each party's ability issued by solvent
insurance carriers licensed to do business in the state of Texas or Lloyds
Underwriters and shall be in form mutually satisfactory to the parties hereto.
All such polices of insurance shall contain an endorsement whereby the carrier
agrees that its insurance is primary and not contributory with or in excess of
any coverage which the other party hereto may carry. Notwith-
24
standing anything to the contrary contained in this Article IV, the amounts of
coverage to be provided under each of the policies of insurance required to be
obtained and maintained during the Term of this Agreement pursuant to the
provisions of this Article IV, shall be determined by mutual agreement between
Owner and Pavilion based on industry standards. Owner and Pavilion shall review
the amounts of coverage provided under each of the policies of insurance
required to be obtained and maintained pursuant to this Article IV annually and
they shall be increased to proper limits as circumstances warrant or as may be
required to remain consistent with industry standards.
Section 4.06 Subcontractors' Policies of Insurance. Pavilion and Owner
each hereby agree and covenant with the other, that prior to the engagement or
retention of any contractor or subcontractor who is to enter into the Property
or the Parking/Access Areas to conduct any kind of work, Pavilion or Owner, as
applicable, shall require such contractor or subcontractor (a) to obtain and
maintain comprehensive general liability insurance insuring against loss due to
personal or bodily injury or death of any person and for property damage for
occurrences relating to or arising out of the work conducted by such contractor
or subcontractor in an aggregate amount of no less than $1,000,000.00 and (b) to
provide evidence that such contractor or subcontractor has obtained worker's
compensation insurance for all of its employees. All policies of insurance
obtained and maintained by such contractor or subcontractor shall include an
endorsement pursuant to which the issuer thereof waives its right of subrogation
against Pavilion and against Owner.
ARTICLE V
PROGRAMMING AND SCHEDULING
Section 5.01 Programming Quality and Control. The following provisions
shall govern and control the programming quality and control of Events to be
held, conducted or presented at the Facility:
(a) Pavilion shall, throughout the Term of this Agreement, submit to
Owner, at the earliest possible date, but no later than February 15 of
each calendar year, a comprehensive list ("List") of potential Artists to
be featured at T & P Events for the upcoming Season. No later than fifteen
(15) days after submission of such List, the Board shall designate which,
if any, of such Artists listed thereon are unacceptable to Owner. If Owner
fails to provide notice to Pavilion within such fifteen (15) day period,
then all Artists on such List shall be deemed to be acceptable to Owner.
(b) Attached hereto as Exhibit "B" Is a list of potential Artists
which Pavilion and Owner hereby agree constitute mutually acceptable
Artists to perform at T & P Events.
25
(c) For purposes of establishing a standard for the quality of
programming or selection of specific Artists which may appear at the
Facility, it is hereby agreed and acknowledged that the type of
programming used at both the Concord Amphitheater in Concord, California
and the Blossom Music Center in Cleveland, Ohio shall serve as an initial
standard and guideline for the quality of programming of Events to be
presented and produced at the Facility. However, in the event that
specific Artists which have actually performed at either the Concord
Amphitheater or the Blossom Music Center are disapproved by Owner, the
judgment of Owner shall be final, so long as such disapproval is not
arbitrary and capricious but can be tied to an objective and consistent
standard of quality control. It is understood and agreed by Pavilion that
Owner does not intend to allow any Artist to appear at the Facility which
would use, as a customary part of his performance, profane or immoral
language, dress or behavior or which would cause or create unruly behavior
by the patrons or in general not be consistent with the reputation of The
Woodlands community.
(d) If Pavilion so desires, it shall have the right to appeal any
decision of Owner to reject a particular Artist by presenting additional
information as it deems necessary to the Board for review. Upon any such
appeal, the Board must respond within five (5) business days after
receiving such information with its final decision. If Pavilion so
requests, Pavilion shall have the right to have a face to face meeting
with the Board as a part of such appeal with respect to any rejected
Artist.
(e) Pavilion shall have the right to submit the names of new Artists
at any time during a Season, and Owner must respond within five (5)
business days after having received a picture, recent recording and tour
schedule of such newly proposed Artist. Failure by Owner to respond within
such five (5) business day period shall mean that such Artist is deemed to
be approved by Owner.
(f) Owner recognizes and acknowledges that Pavilion has no control
whatsoever over the content to be included in the performance of any
Artist and that Pavilion does not and cannot make any representation or
warranty concerning the quality of content of any Artist's performance.
(g) Notwithstanding anything contained herein to the contrary, if an
Artist which is not on the original List submitted to Owner becomes
available for performance at the Facility, Pavilion will advise Owner in
writing of the availability of the Artist and make recommendations as to
the Artist's suitability for the Facility. Owner shall approve or
disapprove any such Artist within two (2) business days. If an Artist
which is on the original List becomes available for a performance, but
Pavilion considers the Artist to be
26
unsuitable for performance at the Facility in accordance with the Owner's
standards for quality of programming, Pavilion shall first advise Owner in
writing of the availability of the Artist and make its recommendations as
to the Artist's suitability for performance at the Facility. Owner will
approve or disapprove any such Artist within two (2) business days
thereafter.
Section 5.02 Scheduling. On or before the second week in December of each
calendar year, Owner and Pavilion shall meet to agree on the allocation of dates
for the upcoming Season. At that time, Owner and Pavilion shall each agree on
forty (40) dates to be primarily available to Pavilion and forty (40) dates to
be primarily available to Owner. The remaining dates of each Season shall be
available on a first-come, first-serve basis based upon a committed booking from
an Artist. Primary Dates may be exchanged upon the parties' mutual agreement.
Additionally, each party hereto shall have the right to request an exchange of
any Primary Date at any time and from time to time. The party desiring an
exchange of a Primary Date must have both a committed booking for the other
party's Primary Date which is desired and must make the request no more than six
(6) weeks prior to such desired Primary Date. If the other party does not have a
committed booking on such desired Primary Date within two (2) business days
after it has received the request for an exchange of unexpired Primary Dates,
then such desired Primary Date shall automatically become the requesting party's
Primary Date and the non-requesting party shall then be entitled to select any
one (1) of the selecting party's Primary Dates to become such non-requesting
party's Primary Date, so long as such other Primary Date does not then have a
committed booking from an Artist. Pavilion hereby acknowledges that the Facility
has become the summer home of the Houston Symphony Orchestra ("HSO") and that
Owner may need to schedule dates for HSO at the Facility as much as two (2)
years in advance; provided, however, that it is specifically understood, agreed
and acknowledged that the scheduling of such dates by Owner for HSO shall count
against Owner's forty (40) Primary Dates for the Season in which they are
included.
Section 5.03 Board's Authority. The Board shall have final decision on
such matters as scheduling, programming, capital expenditures and operations of
the Facility within the guidelines of this Agreement.
ARTICLE VI
DEFAULT AND REMEDY
Section 6.01 Pavilion Default.
(a) Pavilion shall be deemed to be in default under this Agreement
upon the occurrence or happening, at any time and from time to time, of
any one or more of the following:
27
(i) Any liquidated sum of money owed to Owner by Pavilion
pursuant to the terms of this Agreement is not paid by Pavilion in
full when the same shall become due and payable and such failure
continues for a period of five (5) days after Owner has given
Pavilion notice thereof.
(ii) Pavilion fails to perform and discharge, as and when
called for, any agreement or obligation imposed upon Pavilion
pursuant to the terms of this Agreement and (A) such failure,
refusal or neglect to perform and discharge such agreement or
obligation continues for a period of fifteen (15) days after
Pavilion has been given notice thereof or (B) if by reason of the
nature of such agreement or obligation the same cannot be remedied
within such fifteen (15) day period, (x) performance and discharge
of such agreement or obligation is not commenced within such fifteen
(15) day period, (y) the performance and discharge of such agreement
or obligation is not diligently and continuously prosecuted or (z)
such agreement or obligation is not fully performed or discharged
within forty-five (45) days after Pavilion has been given notice
thereof.
(iii) Any statement, representation or warranty made by
Pavilion under or pursuant to this Agreement shall be false or
misleading in any material respect.
(iv) For any two (2) consecutive Seasons during the Term, the
aggregate number of T & P Events actually held, conducted or
presented at the Facility during such two (2) consecutive Seasons is
less than sixty (60).
(v) For any two (2) Seasons during the Term, the aggregate
amount of Pavilion Generated Receipts actually received during each
such Season is less than the Minimum Pavilion Generated Receipts for
each such Season.
(vi) Pavilion shall (A) voluntarily be adjudicated a bankrupt
or insolvent, (B) procure, permit or suffer the voluntary
appointment of a receiver, trustee or liquidator for itself or for
all or any part of its property, (C) file any petition seeking a
discharge, rearrangement or reorganization of its debts pursuant to
the bankruptcy laws or any other debtor relief laws of the United
States or any state or any other competent jurisdiction, (D) make a
general assignment for the benefit of its creditors or (E) admit in
writing its inability to pay its debts as they mature.
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(vii) (A) Any petition is filed against Pavilion seeking to
rearrange, reorganize or extinguish its debts under the provisions
of any bankruptcy or any other debtor relief laws of the United
States or any state or any other competent jurisdiction and, if such
petition is an involuntary petition filed against Pavilion, such
petition is not discharged within a period of sixty (60) days or (B)
a court of competent jurisdiction enters an order, judgement or
decree appointing, without the consent of Pavilion, a receiver or
trustee for it, or for all or any part of its property.
(b) If Owner, after the payment of the management fee referred to in
Section 3.03 of this Agreement and the payment of all other fees payable
to Pavilion pursuant to this Agreement, receives during any two (2)
consecutive Seasons from the combination of T&P Events and any voluntary
payments made by Pavilion to Owner during such two (2) consecutive
Seasons, no less than the sum of the minimum amount shown listed in clause
(d) of this Section 6.01 for such two (2) consecutive Seasons, then,
notwithstanding anything to the contrary contained herein, for purposes of
Section 6.01 (a) (iv), the number of T&P Events actually held, conducted
or presented at the Facility during such two (2) consecutive Seasons shall
be deemed to equal or exceed sixty (60).
(c) If Owner, after the payment of the management fee referred to in
Section 3.03 of this Agreement and the payment of all other fees payable
to Pavilion pursuant to this Agreement, receives during any Season from
the combination of T&P Events and any voluntary payments made by Pavilion
to Owner during such Season, no less than the minimum amount shown listed
in clause (d) of this Section 6.01 for such Season, then, notwithstanding
anything to the contrary contained herein, for purposes of Section 6.01
(a) (v) hereof, the aggregate amount of Pavilion Generated Receipts
actually received during such Season shall be deemed to equal or exceed
the Minimum Pavilion Generated Receipts for such Season.
(d) The following are the minimum amounts for each of the next
fifteen (15) Seasons referred to in clauses (c) and (d) of this Section
6.01:
Season Minimum Amount
1995 $488,000.00
1996 $507,520.00
1997 $527,821.00
1998 $548,934.00
1999 $570,891.00
2000 $593,727.00
29
2001 $617,476.00
2002 $642,175.00
2003 $667,862.00
2004 $694,576.00
2005 $722,359.00
2006 $751,254.00
2007 $781,304.00
2008 $812,556.00
2009 $845,058.00
Section 6.02 Owner Default. Owner shall be deemed to be in default under
this Agreement, upon the occurrence or happening, at any time and from time to
time, of any one or more of the following:
(a) Any liquidated sum of money owed to Pavilion pursuant to the
terms of this Agreement is not paid by Owner in full when the same shall
become due and payable and such failure continues for a period of five (5)
days after Pavilion has given Owner notice thereof.
(b) Owner fails to perform and discharge, as and when called for,
any other agreement or obligation imposed upon Owner pursuant to the terms
of this Agreement and (i) the failure, refusal or neglect to perform and
discharge such agreement or obligation continues for a period of fifteen
(15) days after Owner has been given notice thereof or (ii) if by reason
of the nature of such agreement or obligation the same cannot be remedied
within such fifteen (15) day period, (x) performance and discharge of such
agreement or obligation is not commenced within such fifteen (15) day
period, (y) the performance and discharge of such agreement or obligation
is not diligently and continuously prosecuted or (z) such agreement or
obligation is not fully performed or discharged within forty-five (45)
days after Owner has been given notice thereof.
(c) Any statement, representation or warranty made by Owner under or
pursuant to this Agreement shall be false or misleading in any material
respect.
(d) Owner shall (i) voluntarily be adjudicated a bankrupt or
insolvent, (ii) procure, permit or suffer the voluntary appointment of a
receiver, trustee or liquidator for itself or for all or any part of its
property, (iii) file any petition seeking a discharge, rearrangement or
reorganization of its debts pursuant to the bankruptcy laws or any other
debtor relief laws of the United States or any state or any other
competent jurisdiction, (iv)
30
make a general assignment for the benefit of its creditors or (v) admit in
writing its inability to pay its debts as they mature.
(e) (i) Any petition is filed against Owner seeking to rearrange,
reorganize or extinguish its debts under the provisions of any bankruptcy
or any other debtor relief laws of the United States or any state or any
other competent jurisdiction and, if such petition is an involuntary
petition filed against Owner, such petition is not discharged within a
period of sixty (60) days, or (ii) a court of competent jurisdiction
enters an order, judgment or decree appointing, without the consent of
Owner, a receiver or trustee for it, or for all or any part of its
property.
Section 6.03 Owner Remedies. If a Pavilion Default shall occur, Owner may,
at Owner's sole option and election, exercise any or all of the following
rights, remedies and recourses:
(a) terminate this Agreement by giving written notice thereof to
Pavilion;
(b) subject to the limitations contained in Section 6.05 of this
Agreement, seek specific performance of the obligations of Pavilion under
this Agreement; and
(c) subject to the limitations contained in Section 6.05 of this
Agreement, seek recovery from Pavilion of all damages suffered by Owner
which are directly caused by the occurrence of such Pavilion Default.
Notwithstanding the foregoing, the sole remedy available to Owner upon the
occurrence of a Pavilion Default pursuant to Section 6.01(a)(iv) or (v) hereof
shall be to terminate this Agreement pursuant to Section 6.03(a) hereof. If
Owner properly exercises the right to terminate this Agreement pursuant to the
right created in clause (a) of this Section 6.03, then Owner shall not
thereafter be subject to any restrictions or limitations on the use or operation
of the Facility and Owner shall retain the then unamortized portion of
Pavilion's Expansion Contribution.
Section 6.04 Pavilion Remedies. If an Owner Default shall occur, Pavilion
may, at Pavilion's sole option and election, exercise any or all of the
following rights, remedies and recourses:
(a) terminate this Agreement by providing written notice thereof to
Owner;
31
(b) subject to the limitations contained in Section 6.05 of this
Agreement, seek specific performance of the obligations of Owner under
this Agreement; and
(c) subject to the limitations contained in Section 6.05 of this
Agreement, seek recovery from Owner of all damages suffered by Pavilion
which are directly caused by the occurrence of such Owner Default.
If Pavilion terminates this Agreement pursuant to the right created in Section
6.04(a), then Owner shall (A) return to Pavilion the then unamortized portion of
Pavilion's Expansion Contribution and (B) thereafter be precluded from producing
more than four (4) T & P Events per Season, for the Season during which this
Agreement was so terminated and for the two (2) Seasons following such Season.
Notwithstanding the limitations contained in Section 6.05, the restriction
imposed upon Owner pursuant to clause (B) of the immediately preceding sentence
shall be (i) specifically enforceable by Pavilion for the two (2) Seasons
following the Season in which this Agreement is so terminated and (ii) subject
to Pavilion's right to recover damages hereunder for any violation thereof
occurring at any time during such two (2) Seasons following the Season in which
this Agreement is so terminated.
Section 6.05 Limitation on Certain Remedies. Except as may be otherwise
expressly provided herein, the rights and remedies of the parties hereto to seek
specific performance of the obligations of the other party hereunder or to
pursue an action for damages caused as a result of a default or other failure
hereunder shall be expressly limited by the following provisions:
(a) Any action for damages hereunder shall be limited to a right to
recover such damages which the aggrieved party may suffer during the
succeeding twelve (12) month period following the occurrence of the
applicable Pavilion Default or Owner Default, as appropriate, which gave
rise to the right to seek such recovery of damages, regardless of how much
time may remain on the Term of this Agreement.
(b) Any action to seek specific performance of the obligations of a
party to this Agreement shall be specifically limited to a right to
enforce specific performance of such obligations for a period of twelve
(12) months following the occurrence of the applicable Pavilion Default or
Owner Default, as appropriate, which gave rise to the right to seek
specific performance of the obligations of a party hereunder, regardless
of how much time may remain on the Term of this Agreement.
32
ARTICLE VII
MISCELLANEOUS AND GENERAL PROVISIONS
Section 7.01 Non-Compete Agreement.
(a) Subject to the provisions of clause (b) of this Section 7.01, neither
Pavilion nor any Affiliate of Pavilion shall, directly or indirectly, during the
Term or any renewal, modification, amendment or extension of this Agreement and,
if this Agreement is terminated by Owner pursuant to the right created in
Section 6.03(a) as a result of a Pavilion Default, for a period of two (2) years
following such termination, become interested in, as an owner, manager,
operator, tenant, booking agent, consultant, producer, sponsor, or in any other
capacity, any Competitive Outdoor Facility. Notwithstanding the limitations
contained in Section 6.05, the restriction imposed upon Pavilion pursuant to the
immediately preceding sentence with respect to the two (2) years following the
year of termination of this Agreement by Owner pursuant to the right created in
Section 6.03(a) shall be (i) specifically enforceable by Owner for the two (2)
years referred to therein and (ii) subject to Owner's right to recover damages
hereunder for any violation thereof occurring at any time during such two (2)
years.
(b) If the construction and development of a Superior Facility is planned,
announced or proposed by any person other than Pavilion or an Affiliate of
Pavilion, then the following provisions shall apply:
(i) Pavilion may require that a meeting ("Competition Meeting") with
Owner be convened within five (5) business days of notice from Pavilion to
Owner that a Superior Facility is planned, announced or proposed. Owner
and Pavilion shall each send executive representatives to the Competition
Meeting with authority to discuss the advisability of expanding the
capacity of the Facility. Following the Competition Meeting, Owner and
Pavilion shall diligently and in good faith work together to evaluate the
fiscal and economic feasibility of, as well as the ability to finance, the
expansion of the capacity of the Facility.
(ii) If Owner has not made, within sixty (60) days after the
Competition Meeting and in a form reasonably acceptable to Pavilion, a
written commitment ("Expansion Commitment") to cause the Facility to be
expanded to at least 95% of the capacity of such Superior Facility on or
before such Superior Facility's opening date, then Pavilion shall have the
right and option to terminate the provisions of Section 7.01(a) hereof by
providing written notice thereof to Owner. Owner's obligation to expand
the capacity of the
33
Facility pursuant to the Expansion Commitment may be conditioned upon the
occurrence of actual construction of such Superior Facility.
(iii) If (x) Pavilion elects to terminate the provisions of Section
7.01(a) hereof pursuant to the provisions of clause (ii) above and (y)
Pavilion or any Affiliate of Pavilion, should thereafter become interested
in, as an owner, manager, operator, tenant, booking agent, consultant,
producer, sponsor, or in any other capacity, any Competitive Outdoor
Facility, then Owner shall have the right and option to terminate this
Agreement by providing written notice thereof to Pavilion during the
calendar months of October or November of any year, in which case this
Agreement shall terminate as of December 31 of that same calendar year. If
Owner elects to terminate this Agreement pursuant to the provisions
contained in the immediately preceding sentence, then (1) Owner shall not
be subject to any subsequent operational restrictions in regard to the
Facility and (2) Owner shall retain the then unamortized portion of
Pavilion's Expansion Contribution.
Pavilion covenants and agrees with Owner that, at all times prior to the
termination of the provisions of Section 7.01(a) hereof pursuant to the
provisions of clause (ii) above, Pavilion will not take any action which
has as its intent the encouragement or assistance of any other person to
plan, announce or propose a Superior Facility.
(c) For purposes of clarification and to avoid any ambiguity or
uncertainty, it is hereby stipulated, agreed and acknowledged that, if a
specific performance featuring a specific Artist has been rejected for
presentation at the Facility by Owner pursuant to the provisions of
Section 5.01 hereof, then the booking, production, presentation and
promotion of that specific performance featuring that specific Artist at a
Competitive Outdoor Facility by Pavilion or any Affiliate of Pavilion
shall not be considered for purposes hereof to be the act of "becoming
interested in, in any capacity, such Competitive Outdoor Facility."
Section 7.02 Assignment. Pavilion shall have the right to assign up to
forty-nine percent (49%) of its economic rights, but not its obligations, under
all or any portion of this Agreement, so long as Pace or an Affiliate of Pace,
as the managing partner of Pavilion, continues to control and oversee all of the
management duties and responsibilities imposed upon Pavilion pursuant to the
terms of this Agreement. Pavilion may assign, without the prior written consent
of Owner, all of its right, title and interest in and to this Agreement to Pace
or any Affiliate of Pace.
34
Section 7.03 Destruction by Casualty.
(a) If any act or occurrence of any kind or nature, ordinary or
extraordinary, foreseen or unforeseen (including any casualty for which
insurance was not obtained or obtainable), shall result in damage to or loss or
destruction of the Facility, to such an extent that it may not be continued to
be used for the purpose for which it was intended without significant capital
repairs and improvements, then Owner shall have the right to elect not to incur
the necessary obligations for such necessary capital repairs and improvements
and, as a result, terminate this Agreement, in which case neither party hereto
shall have any further rights, duties, liabilities or obligations hereunder.
Notwithstanding the foregoing, if Owner commences or otherwise undertakes to
commence the necessary construction and repairs to enable the Facility to again
be used for the purpose for which it was intended following any such damage to
or loss or destruction of the Facility within one (1) year following the act or
occurrence which gave rise to such damage and destruction, then Owner shall not
be entitled to terminate this Agreement and the Term of this Agreement shall be
extended by an amount of time equal to the passage of time between the act or
occurrence which gave rise to such damage or destruction of the Facility and the
date on which the Facility is fully, completely and finally restored and
repaired to the extent necessary to enable it to be used for the purpose for
which it was originally intended.
(b) Notwithstanding anything to the contrary contained in this Agreement,
if any act or occurrence of any kind or nature, ordinary or extraordinary,
foreseen or unforeseen, shall result in damage to or loss or destruction of the
Facility to such an extent that it may not be used for its intended purpose for
any period of time in excess of thirty (30) calendar days during any Season
(such an act or occurrence being herein called a "Material Casualty") and if, as
a result of such Material Casualty:
(i) Pavilion cannot reasonably cause the number of T & P Events
held, conducted or presented at the Facility during any two consecutive
Seasons to equal or exceed sixty (60), then the number of T & P Events
held, conducted or presented at the Facility during such two consecutive
Seasons shall be deemed for all purposes of this Agreement to be sixty
(60);
(ii) Pavilion cannot reasonably cause the aggregate amount of
Pavilion Generated Receipts received during any Season to equal or exceed
the Minimum Pavilion Generated Receipts for such Season, then the
aggregate amount of Pavilion Generated Receipts received during such
Season shall be deemed for all
35
purposes of this Agreement to exceed the Minimum Pavilion Generated
Receipts for such Season.
(c) If a Material Casualty should occur, the parties agree as
follows with respect to the various contractual obligations and
liabilities which may arise as a result of the occurrence of such Material
Casualty:
(i) Pavilion shall be solely responsible for, and shall
indemnify and hold Owner harmless from and against, all liabilities
and losses arising from the cancellation of, or nonperformance
under, any agreements, commitments or contracts with Artists
relating to booked T & P Events at the Facility ("Pavilion
Contracts"); and
(ii) Owner shall be solely responsible for, and shall
indemnify and hold Pavilion harmless from and against, all
liabilities and losses arising from the cancellation of, or
nonperformance under, any and all agreements, commitments or
contracts which relate to or are ancillary to the ownership,
operation and maintenance of the Facility ("Owner Contracts"),
specifically, including, without limitation, all concessionaire
agreements, obligations and commitments to any hired facility
manager and agreements with support services relating to operation
and management of the Facility, but specifically excluding the
Pavilion Contracts and those agreements, commitments and contracts
described in clause (iii) below.
(iii) Owner and Pavilion agree to be severally responsible for
one-half (1/2) of all liabilities and losses arising from the
cancellation of, or nonperformance under, any and all agreements,
commitments and contracts, except Pavilion Contracts and Owner
Contracts, which benefit both parties including, but not limited to,
sponsorship agreements (such as carbonated and malt beverage
sponsorship agreements) and the ticketing service agreement.
Section 7.04 Special Rights to Terminate. Notwithstanding the other
provisions of this Agreement, it is hereby specifically agreed and acknowledged
by and between the parties hereto that each shall have the following special
rights to terminate this Agreement:
(a) Owner shall have, at its sole option, the right to terminate
this Agreement by providing written notice thereof to Pavilion during the
calendar month of January of any year, except for January, 1995, in which
case this Agreement shall terminate effective as of December 31 of that
36
same calendar year in which such notice is given to Pavilion. If Owner elects to
terminate this Agreement pursuant to the right created in the immediately
preceding sentence, then Owner shall (1) pay to Pavilion, on the effective date
of termination, the then unamortized portion of Pavilion's Expansion
Contribution and (2) not permit more than four T & P Events to be held,
conducted or presented at the Facility during the two calendar years following
the effective date of such termination of this Agreement. Notwithstanding the
limitations contained in Section 6.05 of this Agreement, the restriction imposed
upon Owner pursuant to clause (2) of the immediately preceding sentence shall be
(i) specifically enforceable by Pavilion for the entire two calendar year period
referred to therein and (ii) subject to Pavilion's right to recover damages
hereunder for any violation thereof occurring at any time during such two
calendar year period.
(b) Pavilion shall have, at its sole option, the right to terminate this
Agreement by providing written notice thereof to Owner during the calendar month
of January of any year, except for January, 1995, in which case this Agreement
shall terminate effective as of December 31 of that same calendar year in which
such notice is given to Owner. If Pavilion elects to terminate this Agreement
pursuant to the right created in the immediately preceding sentence, then (i)
neither Pavilion nor any Affiliate of Pavilion shall, directly or indirectly,
produce, present or promote more than four live entertainment events featuring a
touring and professional performer at a Competitive Outdoor Facility for a
period of two years following the effective date of such termination of this
Agreement and (ii) Owner shall retain the unamortized portion of the Pavilion
Expansion Contribution. Notwithstanding the limitations contained in Section
6.05 of this Agreement, the restrictions imposed upon Pavilion and its
Affiliates pursuant to the immediately preceding sentence shall be (i)
specifically enforceable by Owner for the entire two calendar year period
referred to therein and (ii) subject to Owner's right to recover damages
hereunder for any violation thereof occurring at any time during such two
calendar year period.
(c) If Pavilion, in its sole and reasonable discretion, determines that it
has been prevented, as a result of programming and operating restrictions
imposed by Owner, from presenting a sufficient number of T&P Events for any
Season to avoid the occurrence of a Pavilion Default from occurring pursuant to
the provisions of Section 6.01 (a)(iv) or (v) hereof, then Pavilion shall have
the specific right to terminate this Agreement by providing written notice
thereof to Owner. If this Agreement is terminated by Pavilion pursuant to the
right created in the immediately preceding sentence, then Owner shall (1) pay to
Pavilion, on the effective date of termination, the then unamortized portion of
Pavilion's Expansion Contribution, (2) be precluded from presenting, or
permitting to be presented, at the
37
Facility any of those Artists which it restricted Pavilion from presenting at
the Facility for four years following the effective date of such termination,
and (3) shall be precluded from liberalizing its programming and operating
restrictions for four years following such effective date of termination. Other
than the restrictions imposed in the immediately preceding sentence, any
termination by Pavilion pursuant to the this Section 7.04(c) shall terminate all
further duties, liabilities, obligations or rights which either party may have
hereunder. Notwithstanding the limitations contained in Section 6.05 of this
Agreement, the restriction imposed upon Owner in this Section 7.04(c) following
a termination of this Agreement by Pavilion pursuant to this Section 7.04(c)
shall be (i) specifically enforceable by Pavilion for the entire four years
referred to above and (ii) subject to Pavilion's right to recover damages
hereunder for any violation thereof occurring at any time during such four
years.
(d) If, at any time during the Term, (a) Owner has not obtained written
confirmation from the Internal Revenue Service that Owner is a tax-exempt
organization pursuant to the provisions of Section 501 (c)(3) of the Internal
Revenue Code of 1986, (b) Owner obtains notice that the Internal Revenue Service
has revoked or cancelled Owner's status as a tax-exempt organization pursuant to
the provisions of Section 501 (c)(3) of the Internal Revenue Code of 1986, (c)
the Comptroller of Public Accounts for the State of Texas, or other appropriate
governmental agency, gives notice to Owner that Owner's tax exempt status has
been terminated or revoked or (d) a change occurs in the applicable tax laws
such that revenue from the sale of tickets for Events at the Facility is no
longer exempt from state sales tax, then, at any time thereafter, Pavilion shall
have the right, so long as such event or condition continues, to provide written
notice to Owner that Pavilion desires to terminate this Agreement as a result
thereof unless appropriate modifications to the terms of this Agreement can be
mutually agreed to between Owner and Pavilion within sixty (60) days of such
notice. If Pavilion delivers to Owner the notice referred to in the immediately
preceding sentence, then Pavilion and Owner shall meet to discuss the
appropriate modifications to the terms of this Agreement which Pavilion believes
are necessary to remedy the existence of one of the above conditions, and if
Owner and Pavilion are unable to mutually agree to such modifications within
sixty (60) days after Pavilion delivers the initial notice, for any reason, then
Pavilion shall thereafter have the right, at any time, to terminate this
Agreement by providing notice thereof to Owner, in which event Owner shall pay
to Pavilion the then unamortized portion of Pavilion's Expansion Contribution.
(e) If Pace or an Affiliate of Pace should not be, at any time during the
Term of this Agreement, the person with the authority and responsibility
38
on behalf of Pavilion to oversee and direct the activities of Pavilion
hereunder, then Owner shall have the special right to terminate this Agreement
by providing written notice thereof to Pavilion at any time thereafter.
Termination of this Agreement pursuant to the right created in the immediately
preceding sentence shall be effective on December 31 of the calendar year in
which Owner provides notice of such termination to Pavilion. If Owner properly
exercises the right to terminate this Agreement pursuant to the right created in
this Section 7.04(e), then Owner shall not thereafter be subject to any
restrictions or limitations on the use or operation of the Facility but Owner
shall return to Pavilion the then unamortized portion of Pavilion's Expansion
Contribution.
Section 7.05 Rights to Names. Any and all rights, titles and interests in
and to any names, tradenames, trademarks, servicemarks or other proprietary or
protectable interests in any name arising out of the production or presentment
of any Event at the Facility including, without limitation, any special series
of Events (such as jazz festivals, bluegrass festivals or any other type of
series of Events) shall be the sole and exclusive property of the party or
parties which produced such Event or series of Events.
Section 7.06 Right to Co-Produce. If Owner desires to co-produce any T & P
Event at the Facility with Pavilion, then Owner shall provide notice thereof to
Pavilion at least ten (10) business days prior to the scheduled date of
performance for such T & P Event. Pavilion, in its sole and absolute discretion
and with no obligation whatsoever, may elect to include Owner as a co-producer
of such Event after receipt of the written notice described in the immediately
preceding sentence, but if Pavilion does not respond within five (5) business
days after receipt of such notice from Owner, then Pavilion shall be deemed to
have elected not to include Owner as a co-producer of such T & P Event.
Section 7.07 Signage. Pavilion hereby acknowledges and agrees that any and
all signs, banners or other placards of any nature to be placed anywhere inside
or outside of the Facility must first be approved by Owner and be approved by
the Development Standards Committee of the Woodlands.
Section 7.08 Advertising and Marketing. The format and logo of the
Facility's name to be included in advertising for T &P Events must be, prior to
each Season, approved by Owner, such consent not to be unreasonably withheld.
Notwithstanding anything to the contrary contained herein, all advertising and
promotion of the Facility itself, not including the promotion of specific T & P
Events, shall be the exclusive right and responsibility of the Owner, subject to
Pavilion's opportunity to have input into the Owner's plan to market and promote
the Facility Itself.
Section 7.09 Party to Transactions. Except for contracts with Artists
relating to specific T & P Events, Owner shall have the right to review prior to
or after execution (or execute, if requested by Owner at Owner's option) any and
all contracts and agreements
39
that would allow any person or entity to use or benefit from the Facility for
any purpose. Notwithstanding the foregoing, Owner reserves the right to review
and approve, in advance, all contracts with Artists for T&P Events which are to
be co-produced by Owner with Pavilion. With respect to contracts with Artists,
Owner shall have the right, from time to time, to request that Pavilion provide
copies of signed contracts with Artists or be provided specific information
regarding the Event, in lieu of the actual Artist contract itself, for specific
T & P Events which have recently occurred or which are soon to occur and shall
have the right to provide Pavilion with general comments concerning the terms of
any such contracts with Artists but no such comments shall be binding upon
Pavilion in any respect. Pavilion shall cooperate with Owner's requests and
comments made pursuant to the immediately preceding sentence unless Pavilion
believes that such requests and comments are being made in a manner which is
disruptive to Pavilion's ability to perform its obligations under this
Agreement.
Section 7.10 Accounting Matters. Each of the parties hereto will maintain
full and accurate books of account and other records in accordance with
generally accepted accounting principles reflecting all of the financial results
for such party which in any way relates to the subject matter of this Agreement
or otherwise relates to the management, operation or sponsorship of the Facility
and such books and records shall be kept at least twenty-four (24) months after
the Season covered by such records. Each party hereto shall, at all times, make
such books of account and other records available to the other party hereto at
any time upon such other party's request. Either party has the right to have its
designated auditors audit the other party's financial and accounting records
maintained pursuant to this Section 7.10, at the requesting party's expense. If
the audit reflects incorrect financial results, there shall be an adjustment and
one party shall pay to the other on demand such sum as may be necessary to
accurately adjust the amount that should have been paid. Pavilion and Owner
hereby agree that on January 15 of each calendar year throughout the Term of
this Agreement, a full and final settlement of all financial liabilities and
obligations under this Agreement between Pavilion and Owner for the Season just
ended will be completed.
Section 7.11 Owner's Representations. Warranties and Covenants. Owner
hereby unconditionally warrants, represents and covenants to Pavilion as
follows:
(a) Owner (i) is a Texas non-profit corporation duly organized,
validly existing and in good standing under the laws of the State of Texas
and has complied with all conditions prerequisite to its doing business in
the State of Texas and (ii) has all requisite power and all governmental
certificates of authority, licenses, permits, qualifications and
documentation to own, lease and operate its properties, including, without
limitation, the Facility, and to carry on its business as now being, and
as proposed to be, conducted.
40
(b) The execution, delivery and performance by Owner of this
Agreement (i) is within Owner's powers and has been duly authorized by the
Board; (ii) has received all (if any) requisite prior governmental
approval in order to be legally binding and enforceable in accordance with
its terms; and (iii) will not violate, be in conflict with, result in a
breach of or constitute (without due notice or lapse of time, or both) a
default under, any legal requirement or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever
upon any of Owner's property or assets.
(c) To the best of Owner's knowledge, all information, reports,
papers and data given to Pavilion with respect to Owner or the Facility,
including, without limitation, the Plans, are accurate, complete and
correct in all material respects and do not omit any fact, the inclusion
of which is necessary to prevent the facts contained therein from being
materially misleading.
(d) Owner owns fee simple title to the Property and has not
previously granted or created in favor of any third party any lease rights
or other management rights with respect to the Property which would be in
violation of or otherwise in derogation of the exclusive rights created in
favor of Pavilion hereunder. Owner shall not sell, transfer or assign its
right, title and interest in and to the Property in a manner which would
be in violation of or otherwise in derogation of the exclusive rights
created in favor of Pavilion hereunder.
(e) The Internal Revenue Service has granted to Owner exempt status
pursuant to the provisions to Section 501 (c)(3) of the Internal Revenue
Code of 1986, as amended. Owner represents and warrants to Pavilion that,
under the law as it currently exists as of the date of the execution of
this Agreement, all revenues received from the sale of tickets to Events
at the Facility shall be exempt from state sales taxes, provided Pavilion
abides by the appropriate provisions of the Texas Tax Code, Section 3.298
of Chapter 34 of the Texas Administrative Code and Owner is clearly
identified as the presenter of the Events. Pavilion recognizes that Owner
cannot warrant that there will not be any change in the applicable tax
laws after the execution of this Agreement which may affect the accuracy
of the representation and warranty contained in this Section 7.11(e).
Section 7.12 Pavilion's Representations and Warranties. Pavilion hereby
unconditionally warrants and represents to Owner as follows:
(a) Pavilion (i) is a Delaware general partnership, duly organized
and validly existing and has complied with all conditions prerequisite to
its
41
doing business in the State of Texas and (ii) has all requisite power and
all governmental certificates of authority, licenses, permits,
qualifications and documentation to own, lease and operate its properties
and to carry on its business as now being, and as proposed to be,
conducted.
(b) The execution, delivery and performance by Pavilion of this
Agreement (i) are within Pavilion's powers and have been duly authorized
by all of Pavilion's general partners, (ii) have received all (if any)
requisite prior governmental approval in order to be legally binding and
enforceable in accordance with its terms against Pavilion and (iii) will
not violate, be in conflict with, result in a breach of or constitute
(with due notice or lapse of time, or both) a default under, any legal
requirement or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of Pavilion's property or
assets.
(c) To the best Pavilion's knowledge, all information, reports,
papers and data given to Owner with respect to Pavilion are accurate,
complete and correct in all material respects and do not omit any fact,
the inclusion of which is necessary to prevent the facts contained therein
from being materially misleading.
(d) During the Term of this Agreement, from time to time, Pace as
the managing partner of Pavilion, shall make its chief financial officer
available for a meeting with representatives of Owner, at Owner's request,
in order that Owner may discuss and review financial information relating
to Pavilion.
Section 7.13 Good Faith Negotiations. It is the present intent of Pavilion
and Owner that this Agreement extend for the Term set forth herein under
conditions fair and reasonable to both parties; therefore, both Pavilion and
Owner hereby agree to review the terms and conditions contained in this
Agreement annually, and, in good faith, negotiate adjustments or modifications
to the terms hereof which may be brought about by conditions unforeseen at this
time. If Owner should further expand the Facility at any time during this
Agreement beyond that contemplated by the provisions of Section 2.04(h) hereof,
then Owner and Pavilion shall, in good faith, negotiate any additional or
differing terms which may be rendered necessary as a result of such expansion.
Owner covenants and agrees that no such expansion shall be made in a manner
which would interfere with the presentment of any T & P Event at the Facility to
which Pavilion has the right to present pursuant to the provisions and terms of
this Agreement.
Section 7.14 Pavilion's Other Activities. Owner hereby recognizes, agrees
and acknowledges that Pavilion and its Affiliates are in the business of
booking, producing, presenting and promoting entertainment events featuring
Artists of all types throughout the world, including, without limitation,
entertainment events in the Houston standard
00
xxxxxxxxxxxx xxxxxxxxxxx xxxx. Subject to the specific non-compete provisions
contained in Section 7.01 of this Agreement, relating to live entertainment
events at Competitive Outdoor Facilities, Owner hereby agrees and acknowledges
that Pavilion and its Affiliates shall be free to continue their respective
businesses of booking, producing, presenting and promoting live entertainment
events without violating any of its agreements or obligations contained herein,
even if carrying out the same may, from time to time, be in direct competition
with any particular T & P Event or Civic Event being held, conducted or
presented at the Facility.
Section 7.15 Indemnification. The following indemnification provisions
shall apply throughout the Term of this Agreement and shall survive the
termination of this Agreement as appropriate:
(a) Subject to the limitation contained in clause (c) below,
Pavilion hereby agrees to defend, indemnify and hold harmless Owner, from
and against any loss, cost or claim (including, without limitation,
reasonable attorneys' fees) which arises out of or is otherwise caused by
a violation by Pavilion of any obligation or covenant imposed upon it
pursuant to the terms of this Agreement.
(b) Subject to the limitation contained in clause (c) below, Owner
hereby agrees to defend, indemnify and hold harmless Pavilion, from and
against any loss, cost or claim (including, without limitation, reasonable
attorneys' fees) which arises out of or is otherwise caused by a violation
by Owner of any obligation or covenant imposed upon it pursuant to the
terms of this Agreement.
(c) Notwithstanding anything to the contrary contained above, the
foregoing indemnity provisions shall not apply with respect to any loss,
cost or claim which would be insured against under the terms of any
insurance policy required to be maintained by a party hereto during the
Term of this Agreement, unless the indemnifying party has failed In its
obligation to maintain such insurance policy as required by the provisions
of this Agreement. The provisions of this Section 7.15 are subject to the
limitations contained in Section 6.05 of this Agreement.
Section 7.16 Relationship of Parties. Pavilion shall perform its services
under this Agreement as an independent contractor. Pavilion shall not become or
otherwise be responsible for any real property ad valorem taxes with respect to
the Property or any other duties, liabilities or obligations of the owner of the
Property, except for the obligations specifically set forth in this Agreement.
Nothing contained in this Agreement is intended to, or shall be construed as,
creating to any extent or in any manner whatsoever, any partnership, joint
venture, or association between Owner and Pavilion.
43
Section 7.17 Headings. The Article, Section and Subsection entitlements
hereof are inserted for convenience of reference only and shall in no way alter,
modify or define, or be used in construing, the text of such Articles, Sections
or Subsections.
Section 7.18 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas from time to time in
effect.
Section 7.19 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute but one instrument.
Section 7.20 Entire Agreement and Modification. This Agreement contains
the entire agreement between the parties relating to the subject matter hereof
and all prior agreements relative thereto which are not contained herein or
therein are terminated. This Agreement may not be amended, revised, waived,
discharged, released or terminated orally, but only by a written instrument or
instruments executed by the party against which enforcement of the amendment,
revision, waiver, discharge, release or termination is asserted. Any alleged
amendment, revision, waiver, discharge, release or termination which is not so
documented shall not be effective as to any party.
Section 7.21 Notices. Any notice or communication to either party hereto
required or permitted to be given under this Agreement shall be effectively
given only if in writing and when deposited in the United States registered or
certified mail, postage prepaid, return receipt requested, and addressed to the
party to be notified at the address set forth below:
If to Pavilion: Pavilion Partners
c/o SM/PACE, Inc.
000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
with a copy to: Xxxxxxx X. Xxxxxx
Xxxxxx & Xxxxx, a Professional Corporation
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
44
If to Owner: The Woodlands Center for the
Performing Arts
0000 Xxxx Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Attention: Dr. Xxxxx Xxxxxxxx
with a copy to: Xx. Xxxxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Either party shall have the right to change its address for notice purposes
hereunder by giving written notice to the other party as aforesaid, but until
such written notice is given, the addresses set forth hereinabove for each party
shall be deemed to be the correct address for all purposes under this Agreement.
Section 7.22 Severability. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable legal
requirements. If any of the provisions of this Agreement or the application
thereof to any person or circumstance shall, for any reason and to any extent,
be invalid or unenforceable, then neither the remainder of this Agreement nor
the application of such provision to other persons or circumstances shall be
affected thereby, but rather shall be enforced to the greatest extent permitted
by law.
Section 7.23 Attorney's Fees. If either party to this Agreement brings any
court action alleging default by the other party hereunder, the party losing
such action shall pay to the prevailing party its reasonable attorney's fees and
expenses and the same may be included by the court in the judgment rendered.
Section 7.24 House Seats and Complimentary Tickets. With respect to the
House Seats and the provision of other complimentary tickets for the various
Events, Owner and Pavilion hereby agree as follows:
(a) During the Term, Owner shall have free right of access to and
use of its Box Seats included in the definition of House Seats during all
Events at the Facility, at no charge to Owner.
(b) During the Term, Pavilion shall have free right of access to and
use of its Box Seats included in the definition of House Seats during all
Events at the Facility, at no charge to Pavilion.
(c) During the Term, Owner shall have free right of access to and
use of the ten (10) house reserve seats and the ten (10) general admission
tickets which are included within the definition of House Seats, at no
charge to Owner, at all of the T & P Events.
45
(d) During the Term, Pavilion shall have free right of access to and
use of the ten (10) house reserve seats and the ten (10) general admission
tickets which are included within the definition of House Seats, at no
charge to Pavilion, at all of the Civic Events.
(e) [Intentionally Blank]
(f) The party entitled to access to and use of the House Seats
pursuant to the foregoing provisions shall not be obligated, in any way,
to use all or any portion of the House Seats, but may, at its option,
return all or any portion of the House Seats for any particular Event for
sale to the general public or simply permit all or any portion of the
House Seats to go unused.
(g) The party entitled to access to and use of the House Seats for
any particular Event shall be prohibited from selling such House Seats to
any person, firm or corporation and shall be restricted to distributing
and using the House Seats as complimentary tickets.
(h) At all Events, the party which is financially responsible for
the production of such Event pursuant to the terms of this Agreement
shall, subject to the terms and provisions of the Artist contracts for
such Event, control all decisions related to designation and distribution
of complimentary tickets (other than the House Seats); provided, however,
that Pavilion shall make additional complimentary tickets available to
Owner for all T & P Events produced and presented at the Facility by
Pavilion, at Owner's written request, subject to Pavilion's determination,
in its sole and absolute discretion, that additional complimentary tickets
are available. In exercising its discretion to determine whether
complimentary tickets are available for any T & P Event produced and
presented by Pavilion at the Facility, Pavilion shall determine whether
such tickets can be issued in a manner which will not adversely impact
upon the financial results of the production of such T & P Event.
Section 7.25 Ticket Bartering. With respect to any T & P Event at the
Facility, Pavilion shall be required to include in the Available Gross Ticket
Revenue for such T & P Event the face value of all tickets which are traded or
bartered by Pavilion for any Non-Qualified Goods and Services (hereinafter
defined) to the extent that the aggregate face value of all such tickets so
traded or bartered for such T & P Event exceeds $100.00. As used in the
immediately preceding sentence, the term "Non-Qualified Goods and Services"
shall mean any goods or services received by Pavilion or any Affiliate of
Pavilion which are not either (i) used or utilized to reduce the operating costs
of operation of the Facility by Pavilion or (ii) advertising time or space used
in connection with the promotion of T & P Events at the Facility. Pavilion shall
provide to Owner a specific and reasonably
46
detailed accounting of all barter transactions which occur with respect to each
T&P Event presented or produced at the Facility.
Section 7.26 No Waiver. It is hereby agreed that no waiver of any of the
covenants of this Agreement shall be construed as a waiver of any succeeding
breach of the same covenants or any other covenants.
Section 7.27 Replacement of Prior Management Agreement. This Agreement
shall, effective upon execution hereof, supersede and replace the terms,
provisions and conditions contained in the Prior Management Agreement with
respect to any Event held, conducted or presented at the Facility after
execution of this Agreement. The terms, provisions and conditions contained in
the Prior Management Agreement shall continue to apply with respect to any
dispute, conflict, difference or other Issue which may arise between Pavilion
and Owner in regard to any Event held, conducted or presented at the Facility
prior to the execution of this Agreement.
PAVILION PARTNERS, a Delaware general
partnership
By: SM/PACE, Inc., its managing
general partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
---------------------
Title: Chief Executive Officer
-----------------------
"PAVILION"
THE WOODLANDS CENTER FOR THE
PERFORMING ARTS, a Texas non-profit
corporation
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
----------------------
Title: President & Chief
Executive Officer
--------------------
"OWNER"
47
EXHIBIT A
FACILITY
1 of 2
[GRAPHIC OMITTED]
Xxxxxxx Xxxxx Xxxxxxxx Pavilion
EXHIBIT A
FACILITY AS EXPANDED
2 of 2
[GRAPHIC OMITTED]
EXHIBIT "B" LIST OF APPROVED ARTISTS
XXXXXXX XXXXX XXXXXXXX PAVILION
APPROVED ARTIST LIST
10,000 MANIACS THE XXXXX XXXX ORCHESTRA
THE 5TH DIMENSION XXXXX XXXXX & THE CAYENNE BAND
A CELEBRATION OF SCOTTISH MUSIC ASHFORD & XXXXXXX
A FLOCK OF SEAGULLS ASLEEP AT THE WHEEL
A-HA THE ASSOCIATION
A. XXXXXXX XXXXX ATLANTA RHYTHM SECTION
XXXXXXXX XXXXXXX ATLANTIC STAR
XXXXXX XXXXX AUTOGRAPH
AEROSMITH THE B-52'S
AIR SUPPLY X.X. XXXX
XX X. SURE X.X. XXXXXX
XX XX XXXXX XXXXXXX-XXXXXX OVERDRIVE
XX XXXXX BAD COMPANY
XX XXXX BAILLIE & THE BOYS
XX XXXXXXX BANANARAMA
XX XXXXXXX BANDSTAND DANCE PARTY
ALABMA THE BANGLES
XXXX XXXX XXX-XXXX
XXXX XXXXXXX XXXXXXX XXXX
XXXX XXXXXX XXXXXXX XXXXXXXX
XXXXXX XXXXXXX & THE ICEBREAKERS XXXXXXX XXXXXXXXX
XXXXXX XXXX BARDEAUX
XXXXXXXXX X'XXXX XXXXX XXXXXXX
XXXXXX XXXXX XXXXX XXXXX
XXXXXX BROTHERS XXXXX XXXXX
AMERICA BASH N' THE CODE
AMERICAN INDIAN DANCE THEATRE BASIA
AMERICAN LEGENDS OF ROCK-N-ROLL THE BEACH BOYS
XXX XXXXX BEATNIK BEATCH
XXXXXXXX, BRUFORD, XXXXXXX, XXXX XXXX & XXXX XXXXXX
XXXXXX XXXXXX THE BEEGEES
XXXX XXXXXXXX XXXXXXX XXXXXXXX
XXXX XXXXXXXX BELLEMY BROTHERS
XXXXXX XXXXXX XXX XXXXXX
XXXXX XXXXX XXX XXXXXX
XXXX XXXXXX XXXXXXXXXX XXXXXX
XXXXXXX XXXXXX XXXXX XXXXXX
XXXXXX XXXXXXXX BIG AUDIO DYNAMITE
XXXX XXXXXXX BIG BAM BOO
ARS NOVA WIND QUARTET
ART OF NOISE BULLET BOYS
XXXXXXX BUNNYMEN
XXXX XXXXXXX'X EARTHWORKS XXXX XXXX
XXXX XXXXX XXXX XXXXXXXXX
XXXX XXXX XXXXXX XXXXXXXXXX
XXXX XXXXXXX THE CALL
XXXX XXXXXXX TRIO CAMPER VAN BEETHOVEN
XXXX XXXXXX THE CAPTAIN & XXXXXXXX
XXXX XXXXXX XXXXXX XXXXX
XXXX XXXXXXX XXXXX XXXXXXXX
XXXX CRASH XXXXXXXX XXXXX XXXXXXXX
XXXXX XXXXXXX XXXXXX XXXXX XXXXX
XXXXX X. XXXXXX & THE DAKOTAS XXXXXX XXXX
XXXXX XXXX XXXXX XXXX
XXXXX XXXX CHARLY PRIDE
XXXXX XXXXXXX XXXXXXX XXXX TRIO
XXXXX XXXXXX XXXXXXX XXXXXX
BLOOD, SWEAT, & TEARS XXXXXXX XXXXXXX BAND
BLUEGRASS PALOR BAND CHARLIE MUSSEL WHITE
THE BLUES BUSTERS XXXXXXX XXXXXX
BLUES FESTIVAL XXXXXX XXXXXXX
XX XXXXXXX CHARO
XXX XXXXX CHEAP TRICK
XXX XXXXXXXXXXX XXXXXXXXX
XXX XXXX XXXXXX "PEPSI" XXXXX
XXX XXXXXXX CHEF XXXXXX
XXX XXXXX & THE SILVER BULLET BAND CHI-LITES
XXX XXXXXX CHICAGO
XXXXX XXXX XXXXX XXXXX & XXXX XXXXXX
XXXXX XXXXX XXXXX XXXXXXX
XXXXX XXXXXXXXX XXXXX XXXXXXX
XXXXX XXXX XXXXX XXXXX
XXXXX XXXXXXXX XXXXXXXXX XXXXX
XXXXX XXXXXX XXXXXX XXXXXXX & THE WILDCATS
XXXXX XXX XXXXX XXXXX
XXXXX XXXXXX XXXXX XXXXXXXX
BODEANS THE CHURCH
BON JOVI CINDERELLA
XXXXX XXXXX XXXXXXXX (GATEMOUTH) XXXXX
XXXXXX XXXXX XXXXXXXX XXXXXXX
BOOK OF LOVE XXXXX XXXXX
XXXXX XXXXXXXX CLUB NOUVEAU
BOSTON COCTEAU TWINS
XXXXXX XXXXXX COMMODORES
XXX XXXXXX CONCRETE BLONDE
XXXXXXXX XXXXXXXX XXXXXX XXXXXXX
XXXXXX & XXXXXXX
XXXXX XXXXXXX & THE RANGE XXXXX XXXX
XXXXX XXXXXXXXXXX XXXXX XXXXXX
XXXXX XXXXX COUNT XXXXX ORCHESTRA
XXXXX XXXXX COUNTRY XXX XXXXXXXX
BUCK PETS XXXXX XXXXX
XXXXXXXXX XXXXXX COWBOY JUNKIES
XXXXX XXXXX TRIBUTE SHOW CRACK THE SKY
XXXXXX, STILLS, & XXXX XXXXX XXXXXX
CROWDED HOUSE XXXXX XXXXXX
XXXXXXX XXXXX XXXXXXX
THE CURE DOOBIE BROTHERS
XXXXXX XXXXXXXX DOUBLE DARE
XXXXX XXXXXX XXXX X. FRESH
XXX XXXXXXXXX XXXXX XXXXX
XXX XXXX NETWORK XXXXXX XXXXXX
XXX XXXXX XXXXXX XXXXXX
XXX XXXXXX THE DINATONES
XXXX XXXXXX E.U.
XXXXX XXXXXX XXXXX XXXXX
XXXXX XXXXX XXXX XXXXXX
XXXX & SUGAR EARTH, WIND, & FIRE
THE XXXX XXXXXXX QUARTET XXXXXX XXXX
XXXX XXXXXX XX XXXXX
XXXX XXXXXXX XXXXX XXXXXX
XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXXXX XXXX XXXXXX
XXXXX BROBRGB XXXXX WINTEL
XXXXX XXXXXXXXXXX THE EDGE
XXXXX XXXXXX XXXX XXXXXXXX & THE NEW BOHEMIANS
XXXXX XXXXXXXX EL DE BARGE
XXXXX XXX XXXX ELECTRIC LIGHT ORCHESTRA
XXXXX XXXXXXX & EL RAYO-X XXXXX XXXX
XXXXX XXXXXXX XXXXX XXXXXX
XXXXX XXXXXX XXXXX XXXXXXXX
XXXXX XXXXXXXXX XXXXX XXXXXXXX
DELA SOUL EMERSON, LAKE, & XXXXXX
XXXX XXXXXX EMMY XXX XXXXXX
XXXXXX XXXXXX XXX XXXXXXXX
XXXXXX XXXXXXXX XXXXXXXXX XXXXXXXXXXX
XXXXX XXXXX ERASURE
XXXXXXX XXXXX XXXX XXXXXXXX
DEEP PURPLE XXXX XXXXXX
DEP LEPPARD XXXX XXXXXX
DEL FUEGOS XXXX XXXXXXX
XXXXXXX XXXXXXXX THE ESCAPE CLUB
XXXXX XXXXX EUROPE
XXXXXX XXXXXXXX EURYTHMICS
XXXXXX XXXXXX XXXXXX XXXX
XXXXXX XXXXXXXX THE XXXXXX BROTHERS
DEPECHE MODE EXILE
THE DESERT ROSE BAND FABULOUS THUNDERBIRDS
XXXXXXX XXXXXXX & XXX XXXXXX FAIRPORT CONVENTION
XXXXX XXXX XXXXX XXXXX
XXXX XXXXX'X GOOD `OL ROCK-N-ROLL FARRENHEIT
XXXX XXXXXXXX FASTER PUSSYCATS
THE XXXXX XXXXX FAT BOYS
FATHER XXXXX XXXXXXXX
DINO XXXX XXXXXX
XXXXXX XXXXXXX XXXXXXX XXXXXXX
DIRE STRAITS THE FEELIES
XXXXX XXXXXXXXX FEMME FATALE
XXX XXXXXXXXXX XXXXXX XXXXX
XXX XXXXXX FESTIVAL NEW ORLEANS
XXXXX XXXXXX FINE YOUNG CANNIBALS
XXX XXXXXX FIONA
XXX XXXXXXXX XXXXXX XXXXXX
XXXXX XXXXX THE GRASS ROOTS
FIRST CALL XXXXXX XXXXXXXXXX, XX.
FISHBONE GUNSLINGERS TOUR
XXXXX XXXXXXXX XXX XXXXXXXX ORCHESTRA
FLEETWOOD MAC XXXXXX XXXXXX & THE BLUE NOTES
FLESH FOR LULU XXXXX XXXXXXXXX
XXXX XXXXXX XXXXX BLACKSONTE, JR.
THE FLYING BURRITO BROTHERS XXXXX XXXXXXX, XX.
THE FLYING KARAMAZOV BROTHERS HARVEST
FOGHAT HEART
FORCE MD'S XXXXX XXXXXXXXX
FOREIGNER XXXXX XXXXX
THE FORESTER SISTERS HALLOWEEN'S XXXXX XXXXXXXX
XXXXXX & XXXXX XXXXX XXX SUMMER
THE FOUR FRESHMEN XXXXX XXXXXXX
XXX XXXX XXXX XXXX XXXXXX
FOUR TOPS XXXXXX XXXXXXX
XXXX XXXXXXXX XXXXXX XXXX
XXXXX XXXXXX & MAHOGANY RUSH HIGHWAY 101
XXXXX XXXXXXX HIGHWAYMEN
XXXXXXX XXXXXX HIROSHIMA
XXXXXXX GOES TO HOLLYWOOD XXXXX XXXX
XXXXXXX XXXXX & THE FOUR SEASONS HOODOO GURUS
XXXXXXX XXXXXXX HOOTERS
XXXXXX XXXXXX HOTHOUSE FLOWERS
FRONT 242
XXXX XXXXXX XXXX XXXXX & THE NEWS
XXXXXXXXX HUMAN LEAGUE
GAP BAND XXX XXXXXX
XXXXX XXXXXXXXX XXXXXX XXXXX
XXXX XXXXXX INFORMATION SOCIETY
GENE LOVES JEZEBEL THE INK SPOTS
XXXX XXXXXX INXS
GENESIS XXX XXXXX XXXXXX
XXXXXX XXXXXX THE XXXXX BROTHERS
XXXXXX XXXXXX X. X. XXXXXXX
XXXXXX XXXXXXX X. X. XXXX
XXXXXX XXXX J. J. FAD
XXXXXX XXXXX XXXX XXXXX
XXXXXX XXXXXXXX & XXXX XXXXXXX XXXX XXXX & THE HEART ATTACK
XXXXXX XXXXXX XXXXXX XXXXX
XXXXXX XXXXXXX XXXXXX XXXXX
GEORGIA SATELLITES XXXXXXX XXXXXX
GIANT XXXXX XXXXX
GIRLSCHOOL XXXXX XXXXXX BLUES BAND
GLASS TIGER XXXXX XXXXXX
XXXX XXXXXXXX XXXXX XXXXXXXXXX BAND
XXXXX XXXX XXXXX XXXXXX
XXXXX XXXXXX ORCHESTRA JAN & XXXX
XXXX XXXXXXXX XXXX XXXXXXX
XXXXXX XXXXXXX & MIAMI SOUND MACHINE JANE'S ADDICTION
XXXXXX XXXXXX XXXXX XXXXXXX
XXXXXX XXXXXXXXX XXXXX XXXXXX
XXXXX XXXXX XXXXX XXX
XXXXXX XXXX XXX XXXXXXX
XXX XXXX XXXX XXXXX
XXXX-XXX XXXXX XXXX XXXXX
XXXXXX XXXXXX XXXXXX XXXX
XXXXXXX X. XXXXX XXXXXX XXXXX & SAVUKA
XXXX XXXX XXXXXX XXXXX XXXXXXXX
THE XXXX XXXXX BAND XXXXXX XXXXXX
XXXX XXXXXX XXXXXX XXXXXX
JEFFERSON AIRPLANE XXXXXX XXXXXX
XXXXXXX XXXXXXX XXX XXXXXXX
XXXXXXXX XXXX XXXXXXXX XXXXXX
XXXXXXXX XXXXXX XXXXXXXX XXXXXXX
XXXXXXXX XXXXXXX XXXX XXXXXXXX
XXXXX XXXXXX XXXX XXXXXXXXX
XXXXX XXXXXX XXXX XXXX
XXXXX XXXX XXXXXX XXX XXXXX
XXXXX XXX XXXXX XXXX XXXXXX
XXXXX XXXXX XXXXX XXXXXX
XXXXX XXXX XXXXXX XXXXXX
XXXXX XXXXX XXXXX XXXXX XXXXXXXX
XXXXX XXXXXXXXXX XXXX XXXXXX XXXX
XXXXXX XXXX XXXXXX XXXXXX & THE ALLSTARS
THE JETS X. X. XXXX & THE RECLINES
XXX XXXXXX X. X. XXXXX
XXXXX XXXXXX XXXXX XXXXXX
XXXXX XXXXXXX XXXX & XXX MCCARRIGLE
XXXXX XXXX XXXXX XXXXXXXX
XXXX XXXXXXXXXXX XXXXX XXXXX
XXXX XXXX XXX XXXXXXXX
XXXX XXXX & THE BLACKHEARTS XXXXX X.
XXXX XXXXXX XXXXX XXXXXXX
XXXX XXXXXX XXXXX XXXXXX
XXX XXXXXX XXXXX XXXXXX
XXX XXX XXXXX XXXXXX
XXX XXXXXXX XXX XXXXXX & THE COCONUTS
XXX XXXXXXX KID `N' PLAY
XXX XXXXXX XXX XXXXXX
XXX SATRIANI KING SUNNY ADE
XXX XXXXXXXX KINGDOM COME
XXXX XXXX THE KINGSMEN
XXXX XXXXXXXX THE KINGSTON TRIO
XXXX XXXXXXXX & THE BEAVER XXXXX BAND THE KINKS
XXXX XXXX XXXX XXXXXX
XXXX XXXXX XXXXX XXXXX FAMILY SHOW
XXXX XXXXXX KIX
XXXX COUGAR MELLENCAMP THE KNACK
XXXX XXXXXXXX XXXX XXXXXX & HER BLUES MACHINE
XXXX XXXXXX KOOL & THE GANG
XXXX XXXXXXXXX KRESKIN
XXXX XXXXXXX XXXX XXXXXXXXXXXXX
XXXX XXXXXXX KURTIS BLOW
XXXX XXXXXXXX KWAME
XXXX XXXXX LTRIMM
XXXX XXX XXXXXX XXXX X. XXXXXX
XXXX XXXXXX & THE BLUESBREAKERS LADYSMITH BLACK MAMBAZO
XXXXX "BUD" MELMAN MANHEIM STEAMROLLER
XXXXX XXXXXXX XXXXXX XXXXXXX
XXXXX XXXXXXX XXXXX XXXXX
XXXXX XXXXXX & THE GATLAN BROTHERS XXXXX XXXXXXX
XXXXXX XXXXXXX XXXXX XXXXXX
XXXXX XXXXXXXX XXXXXXX XXXXX
XXXXX XXXX XXXXXX XXXXXXXX
XXXXXX XXXXXXXX XXXXXXXX XXXXXXXX
XXX XXXXXXXXX XXXXXXX
XXX XXXXXXXX XXXXXX XXXX
XXXXX XXXXXXX XXXXX XXXXX
XXX XXXXX XXXXXX XXXXXXXX
XXXX XXXXXXX XXXX XXXXX
XXXXXXX XXXXX XXXXX XXXXXXX
XXXXX XXX XXXX XXXXXXX XXXXXXXX
XXX XXXXXX XXX XXXXXX
XXXXXX XXXX XXX XXXXX
XXXXXX XXXXXX XXXXXXX
THE LETTERMAN XXXXX XXXXX
XXXXX 00 XXXXXXX XXXXXXXXX
LEVERT XXXXXXX XXXXXXXXXX
XXXXXXX AXE XXXXX XXXXXXX
XXXXX XXXXXXXX XXXXXXX XXXXXX
XXXXXX XXXXXXXXXX XXXXXXX XXXXXX
XXXX XXXX & THE CULT JAM XXXXXXX XXXXXXX
XXXX XXXX XXXXXXX XXXXXX XXXXXXX
LITTLE FEAT XXXXXXX XXXXXXXX
XXXXXX XXXXXXX XXXXXXX XXXXXXX
XXXXXX XXXXXX XXXXXXX X. XXXXX
LIVING COLOUR XXXXXXXX XXXXXXX
XXXXXXXXXX XXXXXX XXXXXX XXXXXX
XXXX XXXXXXX MIDNIGHT STAR
X.X. XXXX X XXXX & THE MECHANICS
XXXX XXXXXX XXXXX XXXXX
XXXXXX XXXXXX XXXXX XXXXX XXXXXXX
XXXXXX XXXX XXXXXX XXXXX
XXXXXXX XXXX XXXXXX XXXXXXXXXX
XXX XXXXX XXXX XXXXXX
XXX XXXXX
XXX XXXX XXXXXX XXXXX
LOUDNESS XXXXXX XXXXXX
XXXXXX XXXXXXXXXX XXX MISS XXXXX & THE PASSIONS
XXXXX XXXXXXXX THE MISSION U. K.
LOVE AND ROCKETS XXXXX XXXXXX
LOVERBOY MODERN JAZZ QUARTET
XXXXX XXXXX XXX XXXXX
LUTHER "GUITAR JR." XXXXXXX THE MONKEES
XXXXXX XXXXXXXX THE XXXXX BLUES
XXXX XXXXXX XXXXXX DAY
XXXXX XXXXXX N.W.A.
XXXX XXXXXXXX NAJEE
X.X. XXXXXX XXXXX XXXXXXXX
XXX XXXXX XXXXX XXXXXX
XXX XXXXXXX XXXXXX XXXXX
XXXXXXX XXXXXXX XXXX
THE MANHATTAN TRANSFER XXXX XXXXXXXXX
XXXX XXXXXXX XXXXX XXXXX
XXXX XXXXXX XXXXX XXXXXXXX
XXXX XXXXX XXXXX XXXXXXX
XXXX XXXXXX PETER, PAUL, & XXXX
XXXXXX XXXXXX ORCHESTRA XXXXX XXXX
THE NEVILLE BROTHERS PETRA
NEW GRASS REVIVAL XXXXXX XXXXX
NEW KIDS ON THE BLOCK XXXX XXXXXXX
NEW ORDER XXXXXX XXXX
NEWPORT JAZZ FESTIVAL ALLSTARS XXXXXX XXXXXX
XXXX XXXXX THE PIXIES
XXXX XXXX POCO
XXXXX XXXXXXX THE POGUES
XXXXXXXXX XXXXXX THE POINTER SISTERS
XXXX XXXXXXX POISON
NITTY GRITTY DIRT BAND PROTER XXXXXXX
XXXX POUSETTS-DART BAND
THE NYLONS PRETTY POISON
THE O'JAYS THE PROCLAIMERS
THE X'XXXXX PRISM
XXX XXXXX XXXX PSYCHEDELIC FURS
OINGO BOINGO QUEEN
XXXXXX XXXXXX-XXXX QUEENSRYCHE
ORAN "JUICE" XXXXX XXXXXX XXXXX
XXXXXXX XXXXXXXX R.E.M.
XXXX XXX & THE KNIGHTS THE RAMONES
THE OUTFIELD XXXXXX XXXXX
OZARK MOUNTAIN DAREDEVILS XXXXX XXXXXX
X.X. X'XXXXXX XXXXXXX
XXX BENETAR XXX XXXXXXX
XXX XXXXX RAY, GOODMAN, & XXXXX
XXX XXXXXXX GROUP XXX XXXXXX, XX.
XXXXX XXXXXXX XXX XXXXXX
XXXXX XXXXX XXX XXXXXXX
XXXXX XXXXX XXXXX XXXXXX
XXXX XXXX READY FOR THE WORLD
XXXX XXXXXXX REAL XXXXXXX
XXXX XXXXXXXXX XXXX XXXXXXXX
XXXX XXXXXXXXXX XXXXXX XXXXXXX
XXXX XXXXXXXXX REO SPEEDWAGON
XXXX XXXXXXX THE REPLACEMENTS
XXXX XXXXX XXXXXXXX XXXXX
XXXX XXXXX XXXXXX XX XXXXXXX
XXXXX XXXXX RHYTHM CORPS
XXXXX XXXXXXXXXX XXX XXXXXX
XXXXX XXXXXX XXXX XXXX
XXXXX XXXXXX XXXX XXXXXX
PENN & TELLER XXXXXXX XXXXX
XXXXX XXXXXX XXXXXXX XXXX
PET SHOP BOYS XXXXXX XXXXXX
XXXX XXXXXXXX XXXX XXXXX
XXXX XXXXXXXX XXXX XXXXXXX
XXXX XXXXXX XXXX XXXXXXXXXXX
XXXX XXXXXXX XXXXXX XXXXXXXX
XXXXXX XXX XXXXX THE XXXXXXXX XXXXXXXX
XXXXX XXX XXXXXXX SOUTHERN PACIFIC
RIGHTOUS BROTHERS SOUTHSIDE XXXXXX
XXX XXXXXXXXXXX/XXXX XXXXXXX SPENCER DAVIS
RITA MORENO SPIN DOCTORS
THE ROBERT CRAY BAND SPYRO GYRA
ROBERT GUILLAUME SQUEEZE
ROBERT PALMER STACEY Q
ROBERT PLANT STANLEY CLARK
ROBIN TROWER STANLEY JORDAN
ROBIN WILLIAMS STANLEY TURRENTINE
ROBYN HITCHCOCK & THE EGYPTIANS THE STAPLE SINGERS
THE ROCHES STARSHIP
ROD STEWART STARS OF THE LAWRENCE WELK
RODNEY DANGERFIELD SHOW
ROGER DALTREY STEEL PULSE
ROGER MCGUINN STEELY DAN
ROGER MILLER STELLA PARTON
ROGER WATERS STEPHANIE MILLS
ROGER WHITTAKER STEPHEN STILLS
RONEE BLAKELY STEVE ALLEN
RONNIE LAWS STEVE EARLE & THE DUKES
RONNIE MILSAP STEVE FORBERT
RONNIE SPECTOR STEVE LANDESBERG
RORY GALLAGHER STEVE LAWRENCE & EDYIE GORME
ROSANNE CASH STEVE MARTIN
ROSEANNE BARR STEVE MILLER
ROY CLARK THE STEVE MORSE BAND
ROYAL COURT OF CHINA STEVE WARNER
STEVE WINWOOD
RUSH STEVEN CURTIS CHAPMAN
RUSSELL HITCHCOCK STEVEN WRIGHT
SADE STEVIE NICKS
SALT `N' PEPA STEVIE RAY VAUGHN & DOUBLE TROUBLE
SAMANTHA FOX STEVIE WONDER
SAMMY DAVIS, JR. STEWART COPELAND
SANDI PATTI STING
SANDRA BERNHARD STONEWALL JACKSON
SANTANA STRAYCATS
SARAH VAUGHAN STRYPER
SERGIO MENDES SUPER ROCK OF THE 60'S
SHA NA NA SUPERTRAMP
SHADOWFAX SUZANNE VEGA
SHARI LEWIS SWEETHEARTS OF THE RODEO
SHEENA EASTON SWING OUT SISTER
SHEILA B. T-BONE BURNETT
SHIRLEY JONES & PETER NERO T. GRAHAM DROWN
SID CAESAR T.G. SHEPPARD
SIMPLE MINDS TAKE 6
SIMPLY RED TALK TALK
SIOUXSIE & THE BANSHEES TALKING HEADS
SIR MIX-A-LOT TAMMY WYNETTE
SKEETER TANGERINE DREAM
THE SMITHEREENS TANYA TUCKER
TEARS FOR FEARS TAVARES
TED NUGENT WAYNE NEWTON
THE TEMPTATIONS WEIRD AL YANKOVIC
TENNESSEE ERNIE FORD WENDY WALDMAN
TERENCE TRENT D'ARBY WIDTH HEART
TESLA WHITE LION
TEXAS WHITNEY HOUSTON
THAT PETROL EMOTION THE WHO
THEODORE BIKEL WHODINI
THIRD WORLD WHOOPI GOLDBERG
THOMAS DOLBY WILLIAM LEE GOLDEN
THOMPSON TWINS WILLIE DIXON
THREE DOG NIGHT WILSON PHILLIPS
TIFFANY WYNONNA
TIMBUK 3 WYNTON MARSALIS
TIMOTHY B. SCHMITT XYMOX
TINA TURNER YAKOV SMIRNOFF
TODD RUNDGREN YANNI
TOM CHAPIN YELLOWJACKETS
TOM JONES YES
TOM PETTY & THE HEARTBREAKERS YNGWIE MALMSTEEN
TOM SCOTT ZIGGY MARLEY & THE MELODY MAKERS
TOM T. HALL Z.Z. TOP
TONE LOC
TONI BASIL
TONI CHILDS
TONI TENNILLE
TONY BENNETT
TONY ORLANDO & DAWN
TONY! TONI! TONE!
TOM WAITS
TOO SHORT
TOOTS & THE MAYTALS
TOTO
TOWER OF POWER
TOWNES VAN ZANDT
TRACY CHAPMAN
TRAVIS TRITT
TRIUMPH
THE TURTLES
U2
UB4O
UTFO
VAN HALEN
VAN MORRISON
VANITY
VASSAR CLEMENTS
VERN GOSDIN
VIKKI CARR
VILLAGE PEOPLE
VINCE GILL
WAGONEERS
WANG CHUNG
WARRANT
WARREN ZEVON
WAS (NOT WAS)
WAYLON JENNINGS
PAVILION EQUIPMENT
1. DRESSING ROOMS 5 (ROOMS) WITH SHOWERS
A. BACKSTAGE RESTROOMS/MENS AND WOMANS WITH SHOWERS
2. KITCHEN & DINING AREA WITH RESTROOM
3. STAGE/SEATING AREA
A. ELECTRICAL -- LIGHTS: 1) 3 PHASE, 600 AMPS/PHASE, USL
2) 3 PHASE, 400 AMPS/PHASE, USL
3) 3 PHASE, 200 AMPS/PHASE, USL
SOUND: 4) 3 PHASE, 400 AMPS/PHASE, USL
5) 3 PHASE, 200 AMPS/PHASE, USL
SHORE POWER: 4 CONNECTIONS, EACH 208 V, 60
AMPS, SINGLE PHASE
B. CURTAINS
C. GRID SYSTEM
D. AC CHILLER
E. CEILING FANS
F. LOADING DOCK
G. LAWN SYSTEM
H. HANDICAP SEATING
I. RESERVED SEATING
J. BOX SEATING
K. MIX POSITION
4. PRODUCTION OFFICES
A. BAND
B. PROMOTER
5. OPERATIONS OFFICE
A. TWO-WAY RADIO SYSTEM
B. AUTO ATTEND PHONE SYSTEM
6. SECURITY BUILDING (4 OFFICES)
A. FIRST AID
7. CONCESSION BUILDINGS
A. NORTH
B. SOUTH
C. HILL STANDS
8. STORAGE BUILDING
9. TRASH COMPACTOR
10. PARTY TENT (60' X 100')
11. LAWN CHAIRS / WITH STORAGE BUILDING
EXHIBIT "C"
12. TICKET OFFICE
13. PATHWAYS & PARKING LOTS
24. FENCING
25. ENTRY GATES
26. CATERING AREA
27. MEET & GREET AREA
28. RESTROOMS
A. MENS
B. WOMANS
