AMENDMENT TO EXHIBITION TOUR AGREEMENT
THIS AMENDMENT TO EXHIBITION TOUR AGREEMENT (this "Amendment") is
entered into this 18th day of September, 2000 by and between RMS TITANIC, INC.,
a Florida corporation ("RMST") and SFX FAMILY ENTERTAINMENT, INC. (SUCCESSOR BY
MERGER TO MAGICWORKS ENTERTAINMENT, INC.), a Delaware corporation ("SFX").
RECITALS
A. RMST and SFX have previously entered into that certain Exhibition
Tour Agreement (the "Agreement") dated March 31, 1999.
B. RMST and SFX wish to amend certain provisions contained in the
Agreement as more fully set forth herein.
AMENDMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby mutually acknowledged, the parties
hereto do hereby agree as follows:
1. Defined Terms. Each capitalized term used in this Amendment which is
not defined herein will have the meaning assigned thereto pursuant to the
provisions of the Agreement.
2. Modification to Financial Provisions. The provisions in the
Agreement relating to the financial obligations of SFX to RMST are hereby
amended as follows:
(a) Elimination of Orlando Payments. Section 3.17 of the Agreement is
hereby deleted in its entirety and replaced with the following:
"3.17 SFX shall prepare a current calculation of all payments
due and owing to RMST as a result of the tickets sold for the
Orlando Exhibition and RMST shall be paid all such amounts in
full on or before the execution of this Agreement. In
addition, within ten (10) days after the execution of this
Agreement, SFX shall make available to RMST all Artifacts
owned by RMST and located at the Orlando Exhibition for
packing and pick-up by RMST at the Orlando Exhibition."
(b) Modification of the Financial Guarantee to RMST. Effective as of
the commencement of the Extension Period, the text of Section 5.1 of the
Agreement shall be amended in its entirety to read as follows:
SFX unconditionally guarantees to RMST the payment of Two
Million Dollars ($2,000,000) for the Extension Period. The
foregoing guarantee shall be payable as follows with respect
to the Extension Period: (a) $750.000 upon the execution of
this Amendment, (b) $500,000 on the first day of the First
Extension Period and (c) 750,000 on the first day of the sixth
month of the Extension Period.
The phrase "subdivision (b) of" appearing in the second line of Section 5.2 of
the Agreement is hereby deleted.
(c) Modification to Revenue Sharing Provisions. With respect to the
Extension Period, RMST will be entitled to twenty percent (20%) of the
Revenue against the guaranteed payment of Section 5.1 of the Agreement
instead of sixty-five percent (65%) of the Profits against the guaranteed
payment of Section 5.1 of the Agreement. In order to effectuate the
foregoing, the Agreement is hereby amended as follows effective as of the
commencement of the Extension Period:
(1) The second sentence of Section 6.1 of the Agreement
is deleted.
(2) The text of Section 6.2 of the Agreement is hereby
deleted in its entirety and replaced with the following:
Revenue (as defined in Section 1.9) shall be divided
between RMST and SFX as follows: twenty percent (20%)
thereof shall be paid to RMST and eighty percent
(80%) will be paid to or retained by SFX. The
$2,000,000 guaranteed payment for the Extension
Period paid by SFX to RMST pursuant to Section 5
hereof and any Additional Advances made pursuant to
Section 6.8 hereof will be credited against RMST's
share of the Revenue. SFX will be responsible for the
payment of all Project Expenses out of its share of
the Revenue.
(3) The text of Section 6.3 of the Agreement is hereby
deleted in its entirety and replaced with the following:
Revenue for the Extension Period shall be determined
on a fiscal year basis as of the last day of the
Extension Period, and SFX will pay within sixty (60)
days thereafter to RMST the amount (if any) by which
twenty percent (20%) of the Revenue for the Extension
Period exceeds the sum of (i) the $2,000,000
guaranteed payment paid to RMST pursuant to Section 5
hereof with respect to the Extension Period plus (ii)
the amount of any Additional Advances paid to RMST
pursuant to Section 6.8 hereof (which does not
include the South American Exhibition) during the
Extension Period.
(4) The phrase "and Project Expenses" appearing in the
second line of Section 6.4 of the Agreement is hereby
deleted.
(5) The Monthly Reports and the Annual Accountings
required to be provided by SFX to RMST pursuant to Section
6.5 of the Agreement during the Extension Period will not be
required to include any information concerning Project
Expenses or Profits (which does not include the South
American Exhibition). All such Monthly Reports and Annual
Accountings need only include the information specified in
Section 6.5 of the Agreement with respect to Revenue for the
applicable period. The Annual Accounting for the Extension
Periods will be delivered by SFX to RMST within sixty (60)
days of the last day of the Extension Period.
(6) A new Section 6.8 is hereby added at the end of
Section 6, the text of which will read in its entirety as
follows:
If, during the Extension Period, SFX collects
$10,000,000 or more in Revenue, then thereafter,
prior to moving an Exhibition during the Extension
Period to any city other than a "Short Run City" (as
herein defined), SFX must pay to RMST $500,000 (an
"Additional Advance") as an additional guaranteed
payment against RMST's twenty percent (20%) share of
Revenue during the Extension Period. As used herein,
a "Short Run City" shall be any city in which (i)
there is proposed to be less than 12,000 square feet
of exhibition space and (ii) the proposed term of
exhibition is 60 days or less; provided, however,
that in no event shall Los Angeles or New York be
deemed to be Short Run Cities. SFX agrees that if the
Exhibition is presented in Los Angeles or New York,
such presentation must be on a basis that is
comparable to or superior to the current parameters
of the Chicago Exhibition.
(d) Modification to the Definition of Revenue. In order to
modify the definition of the term "Revenue" in the Agreement, a new
sentence is hereby added at the end of Section 1.9.5 of the Agreement
to read as follows:
Notwithstanding anything to the contrary contained herein, for
all purposes of this Agreement, "Revenue" shall only include
that portion of Ticket Revenue, Merchandising Revenue,
Sponsorship Revenue and Ancillary Revenues which are received
and retained by SFX or an affiliate of SFX and shall not
include any portion of such items of revenue which are
retained by or payable to any unrelated third party such as,
by way of example, (i) a venue which shares in and receives a
portion of Ticket Revenue or (ii) a third party merchandise
concessionaire who is entitled to receive a portion of
Merchandising Revenue. Notwithstanding the foregoing, no
portion of the Ticket Revenue will be shared with any
unrelated third party except for allocations of Ticket Revenue
between admission to multiple viewing areas within a museum or
other Venue.
3. Modification to Provisions Relating to the Term. The provisions in
the Agreement relating to the term of the Agreement are hereby amended as
follows:
(a) Time Periods Covered by the Extension Period. The text of
Section 12.1 of the Agreement is hereby deleted in its entirety and
replaced with the following:
SFX is hereby granted one (1) option (the " Option") to extend
the term of this Agreement for an additional period of one (1)
year (the "Extension Period"). The Extension Period will begin
and end on the following dates:
Begin Date End Date
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Extension Period Sept. 15, 2000 Nov. 30, 2001
All of the terms and provisions of this Agreement will apply
with respect to the Extension Period. The parties hereby
expressly agree and acknowledge that SFX has timely exercised
the Option and the Agreement will remain in force and effect
throughout the Extension Period.
(b) Timing for Exercise of Annual Option. The text of Section
12.2 of the Agreement is hereby deleted in its entirety.
(c) Special Termination Provision. The text of Sections
12.6(a), 12.6(b) and 12.6(c) of the Agreement are hereby deleted in
their entirety.
4. Modification of Terms of Special Extension Right. Section 12.7 of
the Agreement is hereby deleted in its entirety.
5. New Exception to Exclusivity Provisions. The following text is
inserted at the end of Section 2.1 of the Agreement:
If RMST should receive, at any time during the Term or the Extension
Period, an unsolicited offer from a venue or other promoter to present
or allow the presentation of an Exhibition upon terms acceptable to
RMST (herein called an "Acceptable Third Party Offer"), then RMST will
be required to offer to SFX the first right and option to accept and
proceed with an Exhibition as contemplated by the Acceptable Third
Party Offer. However, if SFX should elect not to proceed with such
Acceptable Third Party Offer, then RMST will have the right to present
an Exhibition in accordance with such Acceptable Third Party Offer at
its own cost and expense and for its own account without violating the
exclusivity provisions in this Agreement, provided that (i) RMST and
SFX first mutually agree on which Artifacts may be displayed by RMST in
such Exhibition and (ii) if there are any material modifications or
changes to the terms and provisions contained in the Acceptable Third
Party Offer, then RMST must provide to SFX another right and option to
accept such Acceptable Third Party Offer as so modified. RMST and SFX
agree that the Artifacts to be included in any such Exhibition will
consist of at least one hundred (100) Artifacts, of which approximately
twenty percent (20%) will be "Major Artifacts" and of such "Major
Artifacts" approximately twenty percent (20%) will be "Star Artifacts".
6. Modifications to Section 2 of the Agreement.
(a) A new Section 2.4.5 is hereby added to read as follows: "Upon
request by RMST, SFX shall deliver to RMST copies of its agreements
with the Venues hosting the Exhibitions, only if the Venue is taking a
percentage or any portion of the gross ticket revenues allocable to
the Titanic Exhibit or Exhibition."
(b) A new Section 2.6 will be added to read as follows: "SFX
shall not present an Exhibition or an exhibit in the states of either
Georgia or Michigan without the prior written approval of RMST, which
approval shall not be unreasonably withheld or delayed."
7. Modifications to Section 3 of the Agreement.
(a) A new sentence is hereby added to the end of Section 3.2.3 to
read as follows: "All new didactic text, including labels and panels,
shall be developed in coordination with an authorized executive of
RMST."
(b) A new sentence is hereby added at the end of Section 3.2.5 to
read as follows: "All showcases shall be placed, secured and cleaned
prior to the installation of any Artifacts."
(c) Section 3.5 shall be amended to add two new sentences after
the first sentence to read as follows: "Only personnel approved by
RMST are permitted to handle the Artifacts. Except in conjunction with
the installation or de-installation of an Exhibit or Exhibition, no
Artifacts may be packed, moved, removed, shipped or handled without
RMST's prior written approval."
(d) A new sentence is hereby added to the end of Section 3.7 to
read as follows: "SFX shall ensure that a sufficient number of
adequately trained and approved personnel are present for
installation, de-installation and daily operations."
(e) The text of Section 3.13 is hereby deleted in its entirety
and replaced with the following:
Be responsible for all Artifact conservation and mounting work
that is reasonably necessary for the display of the Artifacts
in an Exhibition, including but not limited to, the costs of
packing, shipping, handling, security, insurance,
conservation, export and import customs, charges and duties,
and the transportation thereof to SFX Exhibitions. RMST shall
pay for the cost of all conservation inspections. Except as
provided in Section 3.13.1, SFX shall pay for the cost of all
Conservation Procedures for all Artifacts included in its
Exhibitions. SFX shall not be responsible for the Conservation
Procedures for Artifacts that are not included in an SFX
Exhibition. The cost of Conservation Procedures paid by SFX
shall not be deducted from Revenue as this term is defined in
the Agreement.
3.13.1 Other than the Conservation Procedures identified on
Exhibit 1.1.G, if any item is identified as needing
Conservation Procedures, then SFX will have the right
to either (i) remove such Artifact from the SFX
Exhibition and deliver it to RMST for Conservation
Procedures at RMST's expense, in which case the
Artifact shall not be returned to an SFX Exhibition
during the Term of this Agreement, or (ii) maintain
such Artifact in the SFX Exhibition and such Artifact
will undergo Conservation Procedures at SFX's expense
(the decision as to whether Conservation Procedures may
be conducted on site will be made by RMST's
conservationist). In either case, RMST shall provide
SFX with a substantially similar Artifact while such
Artifact is undergoing Conservation Procedures, to the
extent such substitute Artifact exists and is
available. Notwithstanding any other term or condition
in this Agreement, RMST shall not require SFX to
include any specific Artifact in an Exhibition.
3.13.2 SFX shall place at least four data loggers in each of
its Exhibitions which may be presented in a non-museum
context. SFX shall consult with RMST concerning the
placement of such equipment. Such equipment shall be
exchanged monthly, replaced with fresh equipment, and
the data sent to RMST for analysis. Readings from such
equipment will be sent to both RMST and SFX.
3.13.3 RMST's conservator shall examine any Exhibitions
lasting more than three months to assess the condition
of the Artifacts and the need for conservation. If, in
the opinion of RMST's conservator, any Artifact is in
immediate need of Conservation Procedures, the Artifact
shall be removed from the Exhibition and RMST shall
provide SFX with a substantially similar Artifact while
such Artifact is undergoing Conservation Procedures, to
the extent such substitute Artifact exists and is
available.
3.13.4 Artifacts consisting of organic materials or of an
otherwise fragile nature shall be removed from the
Exhibitions after a period of time to be determined by
RMST's conservator to minimize damage due to exposure
to light, transportation and other deteriorating
factors. RMST shall provide SFX with a substantially
similar Artifact while such Artifact is undergoing
Conservation Procedures, to the extent such substitute
Artifact exists and is available.
3.13.5 Except for natural deterioration of an Artifact due
to passage of time, SFX shall pay the cost of any
Conservation Procedures that are necessary to repair
any damage to an Artifact caused while the Artifact is
in SFX's possession, custody and control, or during
packing, transportation and handling when such services
are provided by or obtained by SFX.
3.13.6 SFX shall inform RMST immediately in the event of an
emergency concerning the Artifacts, including, but not
limited to, fire, water damage, willful destruction,
loss, climactic problems or a change in appearance of
an Artifact.
(f) Section 3.15 is hereby amended to insert the words "or
designees" after the words "RMST's officers."
8. Modifications to Section 4 of the Agreement.
(a) Section 4.10 is hereby amended to substitute the term
"RMST's conservation facility" for the term "the LP3 Conservation lab
in Semur, France."
9. Modifications to Section 6 of the Agreement.
(a) The first sentence of Section 6.4 is hereby deleted and
replaced with the following text:
SFX shall maintain all books of accounts and all documents
necessary to audit, review and verify Revenue, and agrees to
make such books of accounts and documents available for
inspection and review to authorized representatives of RMST in
Houston, Texas upon reasonable request.
10. Modifications to Section 11 of the Agreement.
(a) Section 11.2 is hereby amended to substitute the phrase "a
commercially reasonable number" for the phrase "2%".
(b) A new sentence is hereby added at the end of Section 11.5
to read as follows: "SFX agrees that it shall provide RMST with copies
of all data collected or received by SFX from the Venue."
11. Modifications to Section 12 of the Agreement.
(a) The text of Section 12.7 is hereby deleted in its entirety
and replaced with the following:
At the end of the Term, SFX must de-install all Artifacts for
pick-up by RMST.
12. Modifications to Section 13 of the Agreement.
(a) Section 13.4 is hereby amended by deleting the three (3)
names "Xxxxx Xxxxxx", "Xxxx Xxxxxx" and "Xxx Xxxxxxxx" and replacing
those names with the six (6) names "Xxx Xxxxxx", "Xxxxxx Xxxxxxx",
"Xxxxx Xxxxxxx", "Xxxx Xxxxxxx", "Xxxxx Xxxxxx" and "Xxxxx Xxxxxxxxx".
13. Modifications to Section 15 of the Agreement.
(a) Sections 15.1 is hereby amended by adding the following
phrase in the last line after the word "hereunder:" "or any injuries
allegedly sustained by a member of the public, an employee or an
independent contractor at an Exhibition as a result of, or caused by,
the negligence or gross negligence of RMST."
(b) Section 15.2 is hereby amended by adding the following
phrase in the last line after the word "hereunder": "or any injuries
allegedly sustained by a member of the public, an employee or an
independent contractor at an Exhibition as a result of, or caused by
the negligence or gross negligence of SFX."
14. Modifications to Section 16 of the Agreement.
(a) The text of the second sentence of Section 16 is hereby
deleted in its entirety and replaced with the following:
"It is expressly agreed that RMST shall be the sole and
exclusive owner of all trademarks utilized for the Exhibition
and of all Exhibition logos."
15. Modifications to Section 19 of the Agreement.
(a) All notices that are required to be given under the terms
of this Agreement shall be given to RMST at its offices in Atlanta,
Georgia and shall be addressed to Xxxxx Xxxxxx, President and Chief
Executive Officer, 0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000.
16. Other Modifications and Definition Changes.
(a) RMST Display Items. Section 1.10 of the Agreement is
hereby amended in its entirety to read as follows:
"RMST Display Items" shall mean the display cases, models and
other theatrical or audio visual components owned by RMST
which are listed on Exhibit 1.10 attached hereto.
The attachment to this Amendment marked Exhibit 1.10 is hereby deemed
to be attached as Exhibit 1.10 to the Agreement.
(b) Equal Billing. The phrase "Unless prohibited by applicable
law" is hereby inserted at the beginning of the penultimate sentence in
Section 2.3 of the Agreement.
(c) Care and Storage. The phrase "in the possession and
control of SFX" is hereby inserted after the phrase "be responsible for
the care and storage of Artifacts" at the beginning of Section 3.5 of
the Agreement.
(d) Costs of Conservation. The fourth sentence in Section 3.13
of the Agreement is hereby deleted and replaced with the following:
The remaining conservation Procedures to be performed on the
Artifacts listed on Exhibit 1.1.G during the Term shall be
paid 50% by RMST and 50% by SFX. If SFX should accept a new
Artifact which is not listed on Exhibit 1.1.G as part of one
of its Exhibitions, then any cost of conserving such new item
shall be paid 50% by RMST and 50% by SFX.
(e) RMST's Address. Sections 5.3 and 19.4 of the Agreement are
each hereby amended to reflect the new address of RMST as being 0000
Xxxxxxxxx Xxxx, XX, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000.
(f) Purchase of Exhibitry. Section 6.6 of the Agreement is
hereby amended by adding a new sentence at the end of Section 6.6 to
read as follows:
Upon termination of this Agreement, RMST shall have the right
and option to purchase all of the Exhibitry at the greater of
the (i) the aggregate cost which SFX has invested in such
Exhibitry or (ii) the fair market value of such Exhibitry as
of the date of such purchase. In order to exercise the
foregoing option, RMST must provide written notice to SFX of
its exercise of such option within thirty (30) days following
the termination of this Agreement and pay the purchase price
within ten (10) days following the exercise of such option.
RMST shall be responsible for picking up and shipping any
items of Exhibitry it acquires pursuant to the terms hereof,
subject to RMST's payment of the purchase price. If RMST does
not purchase the Exhibitry, in the event SFX makes an offer to
sell, or receives an offer to purchase the Exhibitry, RMST
shall have the right of first refusal (for a period of 15
days) to purchase the Exhibitry pursuant to the terms and
conditions of such offer.
(g) Approval of Marketing Materials. For purposes of Section
7.2 of the Agreement, it is hereby recognized, agreed and acknowledged
that RMST has previously approved the existing advertising and
promotional materials currently in use by SFX.
(h) Ticket Prices. The references to "written consent"
appearing in Section 11.1 of the Agreement are hereby deleted and
replaced with references to "oral consent". In addition, the phrase
"tickets shall be made available" in Section 11.4 of the Agreement is
hereby replaced with the phrase "tickets may be made available".
17. South American Exhibition.
(a) "South American Exhibition" shall mean the Exhibits and/or
exhibition(s) in Buenos Aires, Argentina, San Paulo, Brazil and
Santiago, Chile which may be scheduled during the Term and/or the
Extension Period if SFX finalizes a contract with Arbol de Color of
Santiago, Chile ("ADC") for such Exhibits and/or exhibition(s).
(b) Attached hereto as Exhibit A is a copy of the agreement
with ADC. The guaranteed payment under such agreement (the "South
American Guarantee") will be paid as follows: (i) to SFX the sum of up
to One Hundred Thousand Dollars ($100,000.00) as reimbursement for its
legal and organizational actual costs and expenses for the South
American Exhibition, and (ii) to RMST or SFX, as applicable, such
monies as are necessary to reimburse each party for mutually approved
expenses of each party related to the South American Exhibition and
costs and expenses related to the exhibition accountant.
(c) Notwithstanding the other provisions of this Agreement,
the remainder of the South American Guarantee and any other payments
payable by ADC to SFX with respect to the South American Exhibition
shall be divided between RMST and SFX as follows: fifty percent (50%)
thereof shall be paid to RMST and fifty percent (50%) thereof shall be
paid to SFX.
(d) All Revenues, Expenses and Profits of the South American
Exhibition shall be calculated separate and apart from the other
Exhibits and exhibition(s) under the Agreement.
(e) RMST and SFX shall select a mutually acceptable accountant
to be the exhibition accountant for the South American Exhibition.
(f) SFX shall pay RMST any monies due under this Section
within ten (10) days of SFX receipt of any money from ADC.
18. Ratification. Except as expressly amended hereby, the
Agreement is hereby ratified, confirmed and carried forward in all respects by
the parties hereto.
10
EXECUTED as of the date first set forth above:
RMS TITANIC, INC.
By:
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Name:
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Title:
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SFX FAMILY ENTERTAINMENT, INC. (SUCCESOR BY MERGER TO MAGICWORKS
ENTERTAINMENT, INC.)
By:
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Name:
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Title:
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