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EXHIBIT 10.33.1
This agreement ("Agreement"), dated as of January 1, 1998, is entered into by
and between Vans, Inc., 00000 Xxxxxxxxx Xxxxxx, Xxxxx Xx Xxxxxxx, Xxxxxxxxxx
90670- 5569, Attn: Xxxxx X. Xxxxxxxx, Esq. ("Sponsor"), and C.C.R.L., LLC, c/o
Codikow, Carroll & Guido, LLP, 0000 Xxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attn: Xxxxx Xxxxxxx, Esq. ("Company"), and concerns Sponsor's title
sponsorship of the musical touring festival known (during the Term and
throughout the Territory) as "The Vans Warped Tour" (the "Tour").
1. Territory: The territory of this Agreement shall be the United
States, Canada, Europe, Australia, New Zealand, and Japan ("Territory").
2. Term: The term of this Agreement ("Term") shall commence as of
the date hereof, and shall continue for the duration of two Tour Cycles. For the
purposes hereof, a "Tour Cycle" shall mean all of the concert dates in the
United States and Canada (together, the "North American Leg"), in Europe (the
"European Leg"), and in Japan, Australia and New Zealand [including any dates in
Hawaii as part of such leg] (the "Australian Leg") of the Vans Warped Tour '98
or '99 (as applicable). As of the date of this Agreement, the "1998 Tour Cycle"
or "1998 Tour" shall mean that Tour commencing with a North American Leg in late
June or early July of 1998, continuing through the immediately following
European Leg, and concluding with the last concert of the ensuing Australian Leg
of such Tour (likely in late January 1999). As of the date of this Agreement,
the "1999 Tour Cycle" or "1999 Tour" shall mean that Tour commencing with a
North American Leg in late June or early July of 1999, continuing through the
immediately following European Leg, and concluding with the last concert of the
ensuing Australian Leg of such Tour (likely in late January 2000). Company shall
use its best reasonable efforts to conduct Tour concerts in Japan in 1998 or
1999. However, nothing contained herein shall obligate Company to conduct Tour
concerts in Japan in 1998 or 1999, if such Tour concerts are, in Company's good
faith business judgment, likely to result in a financial loss to Company.
3. Sponsorship Fee: In respect of each of the 1998 and 1999 Tours,
Sponsor shall pay a sponsorship fee of One Million Five Hundred Thousand Dollars
($1,500,000.00)(the "Fee"). The Fee shall be paid in installments during 1998
and 1999, respectively, as follows:
(i) $150,000.00 on or before March 1st (or upon full execution of
this Agreement with respect to the 1998 Tour);
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(ii) $150,000.00 on or before April 1st (or upon full execution of
this Agreement with respect to the 1998 Tour);
(iii) $150,000.00 on or before May 1st;
(iv) $200,000.00 on or before June 1st;
(v) $200,000.00 on or before July 1st;
(vi) $200,000.00 on or before August 1st;
(vii) $300,000.00 on or before September 15th; and
(viii) $150,000.00 on or before December 1st.
4. European Leg Obligations: Sponsor shall be solely responsible
for all costs associated with providing a vertical skate ramp (the "Europe
Ramp") at each Tour venue on the European Leg of each of the 1998 and 1999
Tours, which Europe Ramp shall be of the same size, dimensions, and quality as
the vertical ramp provided by Company for the European Leg of the 1997 Tour.
Without limiting the generality of the foregoing, Sponsor shall be responsible
for all costs associated with the Europe Ramp, including but not limited to all
costs incurred in renting or purchasing, transporting, assembling,
disassembling, maintaining, repairing, insuring and storing the Europe Ramp.
Company shall, in reasonable consultation with Sponsor, make all necessary
arrangements for the Europe Ramp, and Sponsor shall reimburse Company for all
reasonable costs incurred by it in good faith in connection with the Europe Ramp
within thirty (30) days of receipt of Company's (or Company-approved vendor's)
invoice(s) concerning same.
5. Nonexclusivity: Sponsor acknowledges and agrees that Sponsor is
not the sole or exclusive sponsor of the Tour or any particular Tour event, and
that Company shall be entitled to permit other persons or entities to act as
sponsors of the Tour and/or any particular Tour event, or to refrain therefrom,
in its sole discretion. Notwithstanding the foregoing, (i) Sponsor shall at all
times during the Term be the official and exclusive title Sponsor of the 1998
and 1999 Tours, and (ii) no other manufacturer or distributor of footwear or
snowboard boots shall be a sponsor of the 1998 or 1999 Tour without Sponsor's
approval, which may be given or withheld in Sponsor's sole discretion.
6. Control of Tour: Sponsor and Company acknowledge and agree that
there exist certain difficulties in determining when the creative and production
elements of the Tour should take precedence over Sponsor's promotional and
marketing activities in connection with the Tour. Accordingly, the parties
acknowledge that Company's decisions and actions as to the creative and
production elements of the Tour shall take precedence over any promotional or
other activities of Sponsor hereunder so long as: (i) those decisions and
actions are in good faith and primarily for the purpose of enhancing and
protecting the opportunities for the audience to enjoy the performances and
exhibitions, (ii) such decisions and actions do not have a material adverse
impact
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on Sponsor or Sponsor's rights hereunder, and (iii) provided that authorized
representatives of Sponsor are present at the applicable venue and are available
for consultation, Company shall consult with Sponsor as to such decisions and
actions. Subject to the foregoing, Sponsor and its representatives agree to
comply fully with Company's reasonable instructions and Company shall have sole
and exclusive control over the concert performances, athletic exhibitions,
Competitions (defined below) and all other aspects of the Tour. Company agrees
to exercise reasonable efforts in making whatever arrangements are necessary to
protect the creative aspects of the Tour while fulfilling the spirit and the
goals of this Agreement with respect to Sponsor. In that connection, Sponsor
shall no later than two (2) weeks before commencement of each Tour, consult with
Company regarding the number, size, placement and other aspects of any signs,
posters, banners or other visual items in order to minimize any conflict which
may arise and coordinate the use of Sponsor's materials with those of other
sponsors of such Tour. Sponsor agrees that in the event of any disagreement,
Company's reasonable, good faith decision shall control.
7. Company's Use of Sponsor's Materials: Company is hereby granted
a limited, non-exclusive license to use the "Vans" name and logo (collectively,
the "Name") in connection with: (a) the advertising and promotion of the 1998
and 1999 Tours, (b) any and all merchandise created and sold or otherwise
distributed by Company in connection with the 1998 and 1999 Tours, (c) any
phonorecords and/or audiovisual works relating to or concerning the 1998 and
1999 Tours, including (without limitation) those featuring musical, athletic,
and/or other performances or footage from such Tours, and (d) any and all news
items, press releases or other information in any media relating to the 1998 and
1999 Tours. Except as expressly set forth herein, Company has no rights or
obligations whatsoever with respect to the use of the Name. Company acknowledges
that the Name is a registered trademark of Sponsor and that Sponsor is retaining
all rights in the Name except as set forth in this Agreement. Company shall
execute and deliver all documents requested by Sponsor which evidence Sponsor's
rights in and to the Name, and hereby assigns to Sponsor all rights it may
acquire in and to the Name except those specifically granted herein. Company
will cause to appear on all materials associated with the Tour on which the Name
appears such legends, markings and notices as Sponsor may reasonably request in
writing in order to preserve and protect Sponsor's rights in and to the Name.
The license granted hereunder shall expire upon the termination of this
Agreement, provided, however, with respect to any permissible use of the Name
during the Term which is incidentally embodied in photographs, video tapes,
and/or other media which are exploited after the Term, the license granted
hereunder shall be perpetual.
8. Sponsor's Promotional Entitlement: Provided Sponsor has
fulfilled all of its material obligations hereunder (specifically including
payment of the Fee by no later than three (3) business days after written demand
therefore) and is not in breach
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of this Agreement, Sponsor shall be entitled to the following during the Term
and throughout the Territory in respect of the 1998 and 1999 Tours:
(a) Company shall refer to the 1998 and 1999 Tours in all press
releases, advertising and promotions as "The Vans Warped Tour '98" and "The Vans
Warped Tour '99" (as applicable), including (without limitation) in all
television and radio advertisements, posters, flyers, and newspaper and magazine
advertisements, and shall instruct and require all applicable third parties to
do the same.
(b) Sponsor shall have the right to identify itself as the
exclusive title sponsor of the 1998 and 1999 Tours in all of its national,
regional, and local advertising (print, television, radio, and internet), on its
website, corporate reports to shareholders or otherwise, and in its filings
under the Securities Act of 1933 and Securities and Exchange Act of 1934.
(c) Company shall provide to Sponsor ground space, approximately
20' by 20' in size, for an enclosed tent at each concert location of the Tour
(the "Tent"). Sponsor may conduct sampling, take surveys, display product, hang
banners and sell Sponsor Merchandise (defined below) inside the Tent. Sponsor
shall be solely responsible for the creation, set up, break down, operation and
management of the Tent, and for all costs associated with the Tent and any
activities conducted therein. Company shall, at no charge to Sponsor, arrange
for internal transportation and lodging of four (4) people to staff Sponsor's
Tent at each venue of the Tour, it being acknowledged and agreed that Sponsor
shall be responsible for the transportation costs incurred in transporting such
staff personnel to and from the first and last (as appropriate) concert venues
of each Leg of the Tours. Company shall have no liability whatsoever for any
loss or damage to the Tent, or to any materials, products and/or merchandise
which Sponsor distributes, sells, and/or exhibits in the Tent or otherwise at
concert venues during the Tour.
(d) Subject to local restrictions at each concert location, if
any, signage containing a mutually approved design, but at the very least
indicating Sponsor's official, exclusive title sponsorship of the 1998 or 1999
Tour (as applicable), shall be displayed throughout the venue at each concert.
Sponsor shall also be entitled to receive more favorable treatment than any
other sponsor of the given Tour as to placement of signage bearing the Name, and
shall receive approximately 80% of all signage space available to Company at
each venue for such signage. Any signage placed "on stage," with the mutual
approval of Company, Sponsor, and the artists appearing on such stage, shall be
placed in such a way that it will not interfere with the artistic concepts of
the performances nor in any way which will interfere with the sight lines of the
audience. All costs incurred in connection with the creation of any signage
bearing solely the Name shall be borne solely by Sponsor, it being acknowledged
and agreed that all costs incurred in connection with the creation of any
signage bearing the Name along with the name and/or logo of the Tours shall be
borne solely by Company. Sponsor shall deliver
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all signage it desires to display on the Tour no later than ten (10) days prior
to the commencement of each of the 1998 and 1999 Tours, to the locations
designated by Company.
(e) Company and its designees and licensees shall include the
Name on all items of event merchandise (i.e., T-shirts, sweatshirts, hats and
other wearing apparel, posters, stickers, and programs) created for the 1998 and
1999 Tours and sold by or on behalf of Company at Tour venues. The parties
acknowledge that all monies to be derived from the sale, distribution and
exploitation of such merchandise shall be solely the property of Company and its
designees and licensees.
(f) Sponsor may sell up to eight (8) items of merchandise
embodying the Name ("Sponsor Merchandise") at Tour venues throughout the
Territory, which merchandise may not embody the name or logo of Company or the
Tour. The price of each item of Sponsor Merchandise shall be designated by
Sponsor. Sponsor shall be solely responsible for any and all costs and expenses
relating to the creation, shipping, transportation, and vending of Sponsor
Merchandise. Without limiting the generality of the preceding sentence, Sponsor
shall be solely responsible for any and all "hall," "vendor," and other fees or
amounts charged by any promoters or venue operators in connection with the sale
of merchandise, and shall be obligated to pay the same fees as those paid by the
artists performing on the Tour in respect of their own merchandise sales.
Sponsor shall not endeavor in any way to negotiate or barter for lower "hall" or
"vendor" fees than those imposed upon Company and the artists performing on the
Tour. Sponsor acknowledges that Company does not carry insurance for, nor shall
Company have any liability whatsoever for any loss of or damage to Sponsor
Merchandise.
(g) If Company publishes a program for distribution at concert
venues during the 1998 and/or 1999 Tours, the Name shall appear on the front
cover of such program, and Sponsor shall additionally receive, at no charge, a
full-page, color advertisement in such program. The copy and artwork for such
advertisement shall be provided by Sponsor. All other costs in connection with
the creation, layout, and placement of such advertisement shall be borne by
Company.
(h) Company shall provide ground space for no more than two (2)
10' by 10' booths at each Tour venue for use by up to two (2) retail stores who
are customers of Sponsor, as designated by Sponsor (the "Retail Stores").
Company shall also provide each such Retail Store with ten (10) tickets and five
(5) backstage passes for the applicable concert. Each Retail Store shall be
solely responsible for the creation, set up, break down, operation and
management of its booth, and for all costs associated with such booth and any
activities conducted therein. No Retail Store shall have the right to sell or
otherwise distribute any: (i) wearing apparel or product on which appears the
name of Company and/or the name or logo of the Tour or any artwork, trademarks
or service marks associated therewith, (ii) hats or shirts of any kind, or (iii)
any other merchandise or materials which might conflict with Company's
commitments to other
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sponsors of the Tour. Company shall have no liability whatsoever for any loss or
damage to any Retail Store booth or any materials, products and/or merchandise
distributed and/or exhibited therein, or any injury suffered by any personnel
staffing a booth on behalf of a Retail Store.
(i) If Sponsor decides to sponsor any so-called "VIP receptions"
during any Tour (i.e., a party or other function attended by persons invited by
Sponsor and Tour performers), Company shall use reasonable efforts to invite a
reasonable number of Tour performers designated by Sponsor to attend such
receptions. In connection with the foregoing, (i) all costs in connection with
any such reception shall be borne solely by Sponsor, and (ii) in no event shall
the failure or refusal by any Tour performer to attend any such reception(s) be
deemed a breach hereof by Company. In connection with the foregoing, Company
shall use reasonable efforts to provide to Sponsor an appropriate location at
which such reception(s) may take place.
(j) Sponsor shall sponsor street and vertical ramp amateur
skateboarding competitions (the "Competitions") at a minimum of twenty (20)
selected venues in the United States and Canada, and a minimum of four (4)
venues in Europe during each of the respective Tours. Company shall, at its sole
cost, handle all aspects of the formation, coordination and operation of such
Competitions at the applicable Tour sites and at designated preliminary contest
sites, including (without limitation) providing appropriate personnel,
organizing preliminary competitions to obtain skaters, operating each
Competition, obtaining all required permits, licenses and releases, and
providing all skate courses and other material as necessary for the completion
of each Competition.
(k) Company shall use reasonable efforts to obtain, in respect of
each of the 1998 and 1999 Tours, television coverage by MTV, ESPN, Much Music,
PBS and local television news affiliates in all markets where the Tour is
conducted.
(l) Company shall obtain the following or comparable advertising
exposure in respect of each of the 1998 and 1999 Tours:
(i) Full page ads in TransWorld's SKATEboarding,
SNOWboarding and Warp magazines;
(ii) Purchase of no less than a combined minimum of
Fourteen Thousand Dollars ($14,000.00) worth of radio airtime and print
advertising in each of the markets in which the Tour is conducted; and
(iii) Distribution of posters regarding the Tour to skate
and snowboard shops, skate parks, action sport retailers and record stores in
each market in which the Tour is conducted.
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(m) Company shall provide Sponsor with eighty (80) complimentary
general admission tickets for each concert, twenty-five (25) of which shall be
accompanied by backstage or VIP passes. Sponsor shall have the right to utilize
all or part of the aforementioned tickets in connection with its sponsorship
activities, including give-aways, contests, tie-ins, retailer give-aways and
employee give-aways. Sponsor shall not sell or barter any such complimentary
admission tickets or passes under any circumstances. Any tickets in excess of
this complimentary allotment may be purchased by Sponsor at face value on an "as
available" basis.
(n) (i) Sponsor is hereby granted a limited, non-exclusive
license to use the name and logo of the Tour for the purposes of creating and
marketing (through Sponsor's customary wholesale and retail channels, only) a
line of wearing apparel embodying the name and/or logo of the Tour ("1998 Hat
and Clothing Line"). Each item in the 1998 Hat and Clothing Line shall be
subject to Company's approval, which approval shall not be unreasonably
withheld, conditioned or delayed. Sponsor, at its sole expense, shall be
responsible for obtaining any necessary rights from third parties with respect
to the 1998 Hat and Clothing Line (including, without limitation, copyright,
patent, and name and likeness clearances), and shall indemnify, defend and hold
Company harmless from any claims, damages, or loss whatsoever in connection with
or related to the creation, manufacture, and/or distribution of the 1998 Hat and
Clothing Line.
(ii) Sponsor shall pay Company an amount equal to fifty
percent (50%) of the "net proceeds" (i.e., gross receipts received by Sponsor,
less all costs incurred directly by Sponsor for manufacturing, shipping, and
third-party distribution or sales agent fees, if any) generated in respect of
the sale of the 1998 Hat and Clothing Line. Sponsor shall send statements to
Company as to monies payable hereunder on a quarterly basis, commencing as of
June 1, 1998, accompanied by any amounts due, within thirty (30) days after the
conclusion of each calendar quarter (i.e., no later than April 30th for the
quarter ending March 31st, July 30th for the quarter ending June 30th, October
30th for the quarter ending September 30th, and January 30th for the quarter
ending December 31st). Company may at its own expense, and not more than once
every six (6) months and only once with respect to a given statement rendered
hereunder, audit Sponsor's books and records for the purpose of determining the
accuracy of statements and payments to Company pursuant to this paragraph. Any
such audit shall be conducted on Company's behalf by an independent Certified
Public Accountant or other designated representative upon at least thirty (30)
days written notice, during regular business hours at the regular place of
business where Sponsor's books and records are maintained.
(o) Subject to Company's approval in each instance of use, which
approval shall not be unreasonably withheld or delayed, Sponsor is hereby
granted a limited, non-exclusive license to use the name and logo of the Tour on
the packaging of a promotional give-a-way item ("Promo Item") to be created,
manufactured, and
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distributed by Sponsor in connection with each of the 1998 and 1999 Tours,
provided that (i) such use does not conflict with any of Company's existing or
contemplated contractual obligations to third parties, (ii) Sponsor, at its sole
expense, shall be responsible for obtaining any necessary rights from third
parties with respect to a given Promo Item (including, without limitation,
copyright, patent, and name and likeness clearances), and shall indemnify,
defend and hold Company harmless from any claims, damages, or loss whatsoever in
connection with or related to the creation, manufacture, and/or distribution of
such Promo Items, and (C) such use is otherwise not misleading, improper or
violative of the rights of any third party. Company shall not be entitled to any
royalties or other compensation resulting from the creation, sale or
distribution by Sponsor of any Promo Item.
(p) Space and time permitting, Sponsor shall be allowed to have
qualified representatives ("Sponsor Skaters") perform skateboard demonstrations
on the Tour's vert ramp and street course at various Tour venues. The
scheduling, frequency, location, and duration of any such demonstrations by
Sponsors Skaters shall be within the reasonable discretion of Company. Company
shall have the right to terminate any demonstration by any Sponsor Skater and/or
forbid any future demonstrations by such Sponsor Skater if, in its sole, good
faith judgment, Company determines that such Sponsor Skater does not possess the
expertise to safely and competently perform on the vert ramp or street course
(as applicable), or if such Sponsor Skater does not abide by the code of conduct
applicable to all of the athletes performing on the Tour. Sponsor acknowledges
that Company shall have no liability whatsoever for any injuries sustained or
caused by Sponsor Skaters, and that Sponsor shall be solely responsible for any
and all injuries to persons (including Sponsor Skaters) or loss or damage to
property arising out of or in any way related to the acts and/or omissions of
Sponsor Skaters. Sponsor shall also be solely responsible for the
transportation, room and board required by Sponsor Skaters during the Tour. All
Sponsor Skaters must sign a release of liability in favor Company prior to
performing their first skateboard demonstration on the Tour.
9. Company's Name and Logo: Except as expressly provided herein, it
is acknowledged and agreed that all rights in and to Company's name and logo and
the name and logo of the Tour (excluding the Name), as well as all artwork,
trademarks, service marks and goodwill associated therewith, shall be owned and
controlled exclusively by Company, and Sponsor shall have no right, title or
interest therein or thereto.
10. Cancellation of the Tour: If for any reason, either of the 1998
or 1999 Tours are canceled after such Tour has begun to the effect that less
than ninety percent (90%) of the scheduled concerts for such Tour(s) is
performed, Sponsor's sole remedies shall be to:
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(a) Terminate this Agreement immediately without further
responsibility for the payment of any yet unpaid Fees or payments hereunder; and
(b) Receive a refund of that percentage of any Fee paid by
Sponsor in respect of the cancelled Tour as the number of concerts remaining in
such cancelled Tour, if any, at the time of cancellation bears to ninety percent
(90%) of the total number of concerts previously confirmed for such Tour.
11. Sub-Sponsorships: Vans may offer sponsorship rights ("Vans Sub-
Sponsorships") to up to two (2) sponsors in connection with each of the 1998 and
1998 Tours ("Vans Sub-Sponsors"), on the following terms and conditions:
(a) All Vans Sub-Sponsors must be companies which are in keeping
with the non-corporate, "lifestyle" sensibility of the Tour, as reasonably
determined by Company.
(b) Each Sub-Sponsor shall be entitled to sponsorship rights
comparable to those granted by Company to its significant "second tier"
sponsors, including, but not specifically limited to, a standard 10'x10' booth,
fifteen (15) general admission tickets for each concert, reasonable signage at
Tour venues, the Sub- Sponsor's right to tag its own radio and television
advertising, and the inclusion of the Vans Sub-Sponsor's name and logo in press
materials, advertisements, and posters (created after grant of the applicable
Vans Sub-Sponsorship) where the names and/or logos of other non-title sponsors
appear. No Vans Sub-Sponsor may sell products or services at Tour venues,
without the written consent of Company, which shall not be unreasonably
withheld, conditioned, or delayed.
(c) No Vans Sub-Sponsor shall receive a "presented by," "in
association with," or other distinctive credit.
(d) No Vans Sub-Sponsorship shall be granted to any company for
the promotion of any alcohol, tobacco, or personal hygiene product, or any
recording, television or film company.
(e) Sponsor may not grant "exclusive" rights or rights to any
Tour attraction (whether existing or proposed) to a Vans Sub-Sponsor without the
written consent of Company, which shall not be unreasonably withheld or delayed.
(f) As between Sponsor and Company, Sponsor shall be solely
responsible for all costs incurred in connection with any Vans Sub-Sponsorship.
Company shall not be obligated to incur any costs whatsoever in connection with
the Vans Sub-Sponsorships, and Sponsor shall defend, indemnify, and hold Company
harmless from and against any claims, damages, or losses (including reasonable
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attorneys' fees and costs) arising out of or related to any Vans
Sub-Sponsorship, except to the extent any such claim, damage, or loss is
occasioned by the acts or omissions of Company and/or its agents.
(g) Company may not solicit or grant Vans Sub-Sponsorships to any
company or organization which currently sponsors or has in the past sponsored
the Tour, and may not grant any Vans Sub-Sponsorship rights which interfere with
exclusivity commitments which Company has made previously in respect of Tour
sponsorship.
(h) Sponsor shall immediately notify Company in writing of its
grant of each Vans Sub-Sponsorship.
12. Warranties/Representations/Indemnity/Insurance:
(a) Each party represents and warrants that it has the right,
power and authority to enter into this Agreement, to grant the rights granted
herein, and to perform the duties and obligations described herein. Each party
further represents and warrants that each shall not take any action which might
prevent the exercise by the other party hereto of the rights granted to such
other party nor shall either take any steps which may encumber the rights
granted to the other. Each party further represents and warrants that there are
no actions, suits, proceedings or investigations pending or (to the best of
their knowledge) threatened against or affecting such party before any tribunal
or investigative body which could adversely impact such party's performance
under this Agreement, and that each has been duly formed and is adequately
capitalized to perform its obligations hereunder.
(b) Company hereby agrees to indemnify, defend and hold Sponsor,
its officers, directors, agents, representatives, shareholders and employees
harmless from and against any and all claims, suits, expenses, damages or other
liabilities (including reasonable attorney's fees and court costs), arising out
of: (i) the breach by Company of any of the representations and warranties made
by Company in this Agreement or the failure by Company to fulfill any of its
covenants set forth herein; (ii) subject to paragraph 11(c) below, any personal
injury or property damage arising out of or in connection with an individual's
attendance at any concert on the Tour; (iii) any liability for any expenses
associated with the Tours except as provided herein; (iv) any misuse of the
Name; and (v) any liability of any kind related to merchandise, products or
services offered or supplied by Company. Company, at all times during
the Term of this Agreement shall obtain and maintain at its sole expense,
commencing upon commencement of each Tour, general and public liability
insurance naming Sponsor as an additional insured party in the amount of at
least Five Million Dollars ($5,000,000.00) for personal injury, Five Million
Dollars ($5,000,000.00) for property damage, and Five Million Dollars
($5,000,000.00) for infringement claims relating to Company's acts relating to
intellectual property rights. Company shall also at all times maintain adequate
worker's
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compensation insurance as required in each jurisdiction in which the Tours are
performed. Such insurance shall be non-cancelable during the Term hereof.
Company shall provide Sponsor with copies of each of the above-described
policies, all of which shall be issued from qualified insurance carriers
currently rated "A minus" or better by A.M. Best Company. Such policies may not
be modified without the consent of Sponsor, which may be withheld in its sole
and absolute discretion.
(c) Sponsor hereby agrees to indemnify, defend and hold Company,
all Tour performers, all promoter(s) and all other sponsors of each Tour and
their respective officers, directors, members, agents, partners,
representatives, shareholders and employees harmless from and against any and
all claims, suits, expenses, damages or other liabilities (including reasonable
attorney's fees and court costs), arising out of: (i) the breach by Sponsor of
any of the covenants, representations or warranties made by Sponsor in this
Agreement, (ii) the use by Company of any materials supplied or created by
Sponsor (including, without limitation, any signage, names, trademarks, trade
names or logos), (iii) any action of any kind (including, without limitation,
any action for personal injury or property damage) in respect of any material,
product or service offered or supplied by Sponsor, except the Competitions, but
specifically including any personal injury or property damage sustained or
caused by Sponsor Skaters, and (iv) any claim or action of any kind (including,
without limitation, any action for personal injury or property damage) in
respect of the activities by or on behalf of Sponsor described in Section 7,
above, or any activities by or on behalf of any Vans Sub-Sponsor. Sponsor, at
all times during the Term of this Agreement, shall obtain and maintain at its
sole expense, commencing upon commencement of each Tour, general and public
liability insurance naming Company and its members as an additional insured
parties in the amount of at least Three Million Dollars ($3,000,000.00) for
personal injury, Three Million Dollars ($3,000,000.00) for property damage, and
Three Million Dollars ($3,000,000.00) for infringement claims relating to
Sponsor's acts relating to intellectual property rights. Sponsor shall also at
all times maintain adequate worker's compensation insurance as required in each
jurisdiction in which the Tours are performed and persons employed by Sponsor
provide services or otherwise appear on behalf of Sponsor. Such insurance shall
be non-cancelable during the Term hereof. Sponsor shall provide Company with
copies of each of the above-described policies, all of which shall be issued
from qualified insurance carriers currently rated "A minus" or better by A.M.
Best Company. Such policies may not be modified without the consent of Company,
which may be withheld in its sole and absolute discretion.
13. Permits and Licenses:
Company acknowledges and agrees that Company shall be fully
responsible for and shall acquire or cause local concert promoters to so
acquire, at its sole cost and expense, all licenses, permits, authorizations and
insurance which may be required under federal, state or local law or regulations
in order to legally conduct each
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concert of the Tours, the Competitions (if applicable), and any other activities
by or on behalf of Company contemplated hereunder.
14. Subsequent Tours; Non-Competition:
(a) If Company determines to produce a "Warped Tour" subsequent
to the 1999 Tour (the "Next Tour"), Company shall for a reasonable time (not to
exceed thirty (30) days from the date the Next Tour is publicly announced)
negotiate in good faith solely with Sponsor with respect to the terms and
conditions by which Sponsor may be the title Sponsor and exclusive footwear
Sponsor for the Next Tour. If Company and Sponsor are unable to reach agreement
on such terms and conditions after such good faith negotiations and thereafter
Company desires to enter into an agreement with a third party for title
sponsorship or exclusive footwear sponsorship, as the case may be, for the Next
Tour, Company shall notify Sponsor of all material terms and conditions offered
by such third party, and Sponsor shall have five (5) business days after receipt
thereof to notify Company of its election to enter into an agreement on those
terms and conditions offered by such third party. If Sponsor is not the title
sponsor and/or exclusive footwear sponsor (as the case may be) of the Next Tour,
Company shall have no further obligation on any succeeding Next Tour to
negotiate with Sponsor with respect to title sponsorship and/or exclusive
footwear sponsorship, as the case may be. Sponsor may, however, make an offer to
sponsor a succeeding Next Tour, and if Company so desires, Company may negotiate
with Sponsor concerning the title and/or exclusive footwear sponsorship of any
such succeeding Next Tour.
(b) If Company determines to produce the Next Tour, Company shall
for a reasonable time (not to exceed thirty (30) days from the date the Next
Tour is publicly announced) negotiate solely with Sponsor with respect to the
terms and conditions under which Sponsor may be the exclusive wearing apparel
sponsor for the Next Tour. If Sponsor is not the exclusive wearing apparel
sponsor of the Next Tour, Company shall have no further obligation on any
succeeding Next Tour to negotiate with Sponsor with respect to an exclusive
wearing apparel sponsorship. Sponsor may, however, make an offer to so sponsor a
succeeding Next Tour, and if Company so desires, Company may negotiate with
Sponsor concerning an exclusive wearing apparel sponsorship of any such
succeeding Next Tour.
(c) Sponsor shall not at any time, so long as Company or its
successors produce the Next Tour, operate, underwrite or produce, in whole or in
substantial part, directly or indirectly, any newly organized musical tour
substantially similar to the Tour (a "New Competing Tour") provided, however,
that the foregoing shall not prevent Sponsor from (i) sponsoring a New Competing
Tour, or (ii) sponsoring, underwriting or producing a musical tour existing as
of the date hereof (e.g., Lollapalooza, H.O.R.D.E., and the like) ("Existing
Tour"). Notwithstanding the foregoing, Sponsor shall not be the title sponsor of
any New Competing Tour or any Existing Tour for the lesser of: (i) two
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years after it has ceased to be the title sponsor of a Next Tour, or ii) such
period of time as Company or its successors continue to produce such Next Tours.
Additionally, Sponsor shall not be the title sponsor of any New Competing Tour
or any Existing Tour, at any time it is the title sponsor of the Tour or any
Next Tour.
15. Miscellaneous:
(a) Notices by either party to the other shall be given by
registered or certified mail, return receipt requested, to the respective
addresses set forth on page 1, above.
(b) This Agreement shall be construed under the laws of the State
of California. The courts of the State of California located in the county of
Los Angeles shall have exclusive jurisdiction over any and all claims,
controversies, disputes and disagreements arising out of this Agreement or the
breach thereof, and the parties hereto submit to the personal jurisdiction of
such courts. If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder hereof shall remain in full force and effect.
(c) Neither party shall be liable for any failure of or delay in
the performance of their respective obligations under this Agreement to the
extent such failure or delay is due to circumstances beyond its reasonable
control including (without limitation) fires, floods, wars, civil disturbances,
sabotage, accidents, insurrections, blockades, embargoes, storms, explosions,
labor disputes, acts of any governmental, and/or any other acts of God or a
public enemy, nor shall any such failure or delay give either party the right to
terminate this Agreement. Each party shall use its best efforts to minimize the
duration and consequence of any failure of or delay in performance resulting
from a force majeure.
(d) No breach by either party hereof shall be deemed material
unless the other party shall give written notice of such purported breach to the
breaching party and the breaching party has not cured such breach within thirty
(30) days after receipt of such written notice; provided, however, that
Sponsor's failure to pay any portion of the Fee within three (3) days of written
demand therefor, shall be deemed a material breach of this Agreement by Sponsor
and, without limiting any other remedy available to it in the event of such
breach, Company shall be entitled to suspend further performance of any of its
obligations to Sponsor hereunder until such time as the Fee is paid.
(e) This Agreement shall not be deemed to create any joint
venture, partnership or agency between the parties hereto. It is understood that
each party to this Agreement shall be independent of the other and that neither
party shall have the right or authority to bind the other party.
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(f) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their successors and assigns. Nothing contained in
this Agreement shall be construed to be for the benefit of or enforceable by any
third party, including (without limitation) any creditor of either party.
(g) This Agreement constitutes the complete agreement between the
parties hereto on the subject matter hereof, and supersedes all prior or
contemporaneous agreements between the parties, whether oral or written,
including (without limitation) that certain ,
dated as of January 1997, between Sponsor and Company. This Agreement may not be
modified or amended except by a written instrument duly executed by the party to
be charged. The failure of either party to enforce any of said party's rights
under this Agreement shall not be deemed a continuing waiver and said party may,
within such time as provided by applicable law, enforce any and all such rights.
(h) Except as specifically set forth herein, Sponsor shall not
have the right to assign, sell, lease, license or sublicense, in whole or in
part, any of its rights or obligations hereunder including (without limitation)
Sponsor's right to post signage and hang banners at Tour venues, and Sponsor's
right to ground space for the Tent.
(i) This Agreement may be executed in counterparts with the same
effect as if the parties executing such counterparts all have executed one
counterpart as of the day and year first written above.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
C.C.R.L., LLC, a California VANS, INC., a Delaware corporation
Limited Liability Company
By: Creative Artists Agency, LLC
By: [SIG] By: [SIG]
------------------------------- -------------------------------
An authorized signatory An authorized signatory
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