stadium tri-party agreement

STADIUM TRI-PARTY
AGREEMENT
by and among
HARRIS COUNTY SPORTS & CONVENTION CORPORATION
and
HOUSTONNFL HOLDINGS, L.P.
and
HOUSTON LIVESTOCK SHOW AND RODEO, INC.
The Harris County Stadium
Houston, Texas
TABLE OF CONTENTS
Page
ARTICLE1 DEFINITIONS....................................................
Section 1.1 Definitions and Usage ........................................
Section 1.2 Rules as to Usage ...........................................
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ARTICLE 2 MANAGEMENT
ADVISORY COMMITTEE; QUALIFIED MANAGER...
Section 2.1
Formation .................................................
Purpose ...................................................
Section 2.2
Meetings and Procedures .....................................
Section 2.3
Authority .................................................
Section 2.4
Qualified Manager ..........................................
Section 2.5
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ARTICLE3 SCHEDULING
..................................................
Scheduling Priorities for Tenant Events .........................
Section 3.1
Conflicted Events ...........................................
Section 3.2
Postponements; Scheduling Priorities for Landlord Events ..........
Section 3.3
Section 3.4
Additional Team Events .....................................
Non-Competitive Concerts ...................................
Section 3.5
Section 3.6
Business Center ............................................
Section 3.7
Astrodome ................................................
Section 3.8
Joint Club/Rodeo Store ......................................
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ARTICLE4 PARK/NG/ACCESS
..............................................
Parking/Access on Event Days ................................
Section 4.1
Parking in General ..........................................
Section 4.2
Section 4.3
Rodeo and Landlord Parking On GameDays .....................
Use of the Walkway.........................................
Section 4.4
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ARTICLE 5 CONCESSIONS; AMBUSHMARKETING...........................
Concession Rights ..........................................
Section 5.1
Branding Rights ..... ~ ......................................
Section 5.2
Pourage Rights .............................................
Section 5.3
Service Rights .............................................
Section 5.4
Concession Revenues ........................................
Section 5.5
Special Rodeo Rights ........................................
Section 5.6
Section 5.7
Up-front Concession Payments ................................
AmbushMarketing; Party AmbushMarketing ....................
Section 5.8
Astrodomain Rights .........................................
Section 5.9
Section 5.10 Tenants’ Affiliates ..........................................
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ARTICLE 6 NAMINGRIGHTS, ADVERTISINGAND SIGNAGE...................
Signage ...................................................
Section 6.1
Naming
Rights Revenues/Allocations ...........................
Section 6.2
Fixed Rotational Signage/Allocations ...........................
Section 6.3
Section 6.4 Fixed Permanent Signage/Allocations ...........................
Section 6.5
Stadium Users’ Signage ......................................
Section 6.6
Signage Elements ...........................................
Section 6.7
Fulfillment Costs ...........................................
Section 6.8
Signage Rate Card ..........................................
Section 6.9
Exclusivity Rights ..........................................
Section 6.10 Allocations; Caps ...........................................
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ARTICLE 7 FUTUREDEVELOPMENT
........................................
Section 7.1
Non-Programmed Space .....................................
Section 7.2
Astrodomain Complex .......................................
Section 7.3
Requests for Proposals .......................................
.Section 7.4 Highly Restricted Area .......................................
Section 7.5
Video Production Facilities ...................................
Section 7.6
Tour Theater ...............................................
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ARTICLE8 SUITE
Section 8.1
Section 8.2
Section 8.3
Section 8.4
Section 8.5
Section 8.6
Section 8.7
Section 8.8
Section 8.9
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ANDCLUBLEVELUSAGE.................................
Tenant Events ..............................................
Landlord Events ............................................
Dark Suites ................................................
Major Conventions ..........................................
Major League Soccer ........................................
Suite Revenues .............................................
Non-Event Suite and Stadium Club Access .......................
Halo Suites and Sky Box Suites ................................
Landlord’s Suite ............................................
ARTICLE 9 CHANGES, ALTERATIONS AND ADDITIONAL IMPROVEMENTS.....
Section 9.1
Tenants ...................................................
Landlord ..................................................
Section 9.2
Work Performed - General Requirements .......................
Section 9.3
Section 9.4
Work Permits ..............................................
Increase in Guaranteed Payment ...............................
Section 9.5
Statues ...................................................
Section 9.6
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TABLE OF CONTENTS
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ARTICLE 10 USE OF CAPITAL REPAIR RESERVEFUND..........
~ .............
Section 10.1 Appointment of Capital Repair Committee .......................
Section 10.2 Release of Funds ...........................................
Section 10.3 Committee Approval Not Required .............................
Section 10.4 Other Uses of Capital Repair Reserve Fund ......................
Section 10.5 Maintenance ...............................................
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ARTICLE11 PROCEEDSOF INSURANCE......................................
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ARTICLE 12 REVIEW, ASSIGNMENT AND AMENDMENT
OF STADIUM
CONTRACTS
...................................................
Section 12.1 Enforcement of Contracts ....................................
Section 12.2 Warranty Prosecution ........................................
Section 12.3 Approval of Utility Providers .................................
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ARTICLE13 APPROPRIATIONS
..............................................
Section 13.1 Current Expenses ...........................................
Section 13.2 Notice of Request for Appropriation ............................
Section 13.3 Results of Non-Appropriation .................................
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ARTICLE14 EVENTOF DEFAULT............................................
Section 14.1 Events of Default ...........................................
Section 14.2 Landlord’s Remedies with respect to Tenants .....................
Section 14.3 Tenant’s Remedieswith respect to Landlord ......................
Section 14.4 Tenant’s Remedieswith respect to other Tenant ...................
Section 14.5 Cumulative Remedies .......................................
Section 14.6 Indirect Damages...........................................
Section 14.7 Declaratory or Injunctive Relief ................................
Section 14.8 Interest on OverdueObligations and Post-JudgmentInterest .........
Section 14.9 No Waivers ...............................................
Section 14.10 Effect of Termination ........................................
Section 14.11 Waiver of Consumer Rights ...................................
Section 14.12 Court Proceedings ..........................................
Section 14.13 Attorneys’ Fees .............................................
Section 14.14 Cross-Defaults .............................................
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ARTICLE 15 DISPUTE/DEADLOCKRESOLUTIONPROCEDURES.................
Section 15.1 Settlement by Mutual Agreement ..............................
Section 15.2 Arbitration ................................................
Section 15.3 Emergency Relief ...........................................
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TABLE OF CONTENTS
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ARTICLE 16 CONFIDENTIAL, PROPRIETARY, AND TRADE SECRET
INFORMATION
.................................................
Section 16.1 Acknowledgmentof Confidential Nature of Agreements ............
Section 16.2 Audit ....................................................
Section 16.3 Opinion Request ............................................
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ARTICLE17 ASSIGNMENT
..................................................
Section 17.1 Assignments of the Teamand Rodeo’s Interest ....................
Section 17.2 Release of the Teamand Rodeo ................................
Section 17.3 Transfers by Landlord ........................................
Section 17.4 Release of Landlord .........................................
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ARTICLE18 MISCELLANEOUS
..............................................
Section 18.1 Interdependence of Documents ................................
Section 18.2 Tenant Coordination Clause ..................................
Section 18.3 Coordination on Amendments.................................
Section 18.4 Alcoholic Beverage Permits ...................................
Section 18.5 Signage Permits ............................................
Section 18.6 Olympic Games ............................................
Section 18.7 Opening Night Co-Promotion .................................
Section 18.8 Designated Index ...........................................
Section 18.9 Relationship of the Parties ....................................
Section 18.10 Representations Regarding Individual Capacity ...................
Section 18.11 Waiver of Immunity .........................................
Section 18.12 Notices ...................................................
Section 18.13 Severability ...............................................
Section 18.14 Entire Agreement, Amendmentand Waiver ......................
Section 18:15 Incorporation of Appendices and Exhibits ........................
Section 18.16 Table of Contents; Headings ..................................
Section 18.17 Parties in Interest; Limitation on Rights of Others .................
Section 18.18 Method and Timing of Payment ...............................
Section 18.19 Counterparts ...............................................
Section 18.20 Governing Law ............................................
Section 18.21 Interpretation and Reliance ...................................
Section 18.22 Right of First Refusal ........................................
Section 18.23 Permitted Encumbrances .....................................
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EXHIBITS
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Exhibit L
Exhibit M
Exhibit N
Exhibit O
Exhibit P
Arbitration Procedures
Business Center
Club
Club Level
Existing RodeoLease
Halo Suites
Highly Restricted Area
Landlord’s Parking Spaces
Non-Programmed Space
Sky Box Suites
Walkway
AstrodomainJoint Marketing Termsand Conditions
Suite UsageRules
Landlord’s Suite
Team’s Parking Spaces
MBIA
Confidentiality Letter
STADIUM TRI-PARTY
AGREEMENT
THIS STADIUM
TRI-PARTYAGREEMENT
(this "Agreement") is made and entered into
effective as o fthel 7th day of May,2001 (the "Effective Date"), by and amongHARRIS
COUNTY
SPORTS& CONVENTION
CORPORATION
("Landlord"),
a local government corporation
organized under the laws of the State of Texas, HOUSTON
NFLHOLDINGS,
L.P. ("Team" or
a "Tenant"), a Delaware limited partnership and HOUSTON
LIVESTOCK
SHOW
ANDRODEO,
INC. ("Rodeo" or a "Tenant"), a not-for-profit Texas corporation. Team, Rodeoand Landlord
collectively are sometimesreferred to herein as the "Parties," and each of Team,Rodeoand Landlord
individually is sometimesreferred to herein as a "Party."
RECITALS
A.
The Teamand Landlord have of even date herewith entered into the TeamLease and
the Rodeoand Landlord have of even date herewith entered into the RodeoLease, wherebyeach
Tenant has respectively acquired certain leasehold interests in the AstrodomainComplexfrom
Landlord pursuant to the Lease Agreements.
B. In connection with the Lease Agreements,the Parties desire to set forth certain of
their respective additional agreementsrelating to the AstrodomainComplex,on, subject to and in
accordancewith the terms hereof and thereof.
AGREEMENTS
For and in considerationof the respective covenantsand agreementsof the Parties herein set
forth, and other goodand valuable consideration, the receipt and sufficiency of whichare hereby
acknowledgedby the Parties, Landlord, Teamand Rodeodo hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions and Usage. Unless the context otherwise requires, capitalized
terms used in this Agreementhave the meaningsset forth belowor otherwise assigned to them in
this Agreementor, if any such term has not had a meaningassigned to it in this Agreement,such
term shall have the meaningassigned to it in the Lease Agreements.Rules of Usageare set forth in
Section 1.2 below.
"Acceptable Bank" means The Chase Manhattan Bank or any Other domestic bank or
financial institution mutually agreed to by the Landlord, Teamand Rodeo.
"Actions or Proceedings" has the meaningset forth in the Lease Agreements.
"Additional LandlordWork"has the meaningset forth in Section 9.2.
"Additional Landlord WorkDesign Plans" meansthe final schematic design plans for
Additional Landlord Workshowingall material elements of such Additional Landlord Work.
"Additional Parking Land" has the meaningset forth in the Lease Agreements.
"Additional TeamEvent Days". has the meaninggiven to "Tenant Event Days" under the
TeamLease.
"Additional TeamEvents" has the meaninggiven to "Tenant Events" under the TeamLease.
"Additional Tenant Work"has the meaningset forth in Section 9.1.
"Additional Tenant WorkDesign Plans" means the final schematic design plans for
Additional Tenant Workof a Tenantshowingall material elements of such Additional Tenant Work.
"Advertising" means,collectively, all advertising, sponsorship and promotionalactivity,
Signage, messagesand displays of every kind and nature, whethernowexisting or developedin the
future, including, without limitation, permanent, non-permanentand transitory Signage or
advertising displayed on permanentor non-permanentadvertising panels or on structures, portions
of the Stadium,fixtures or equipment(such as Scoreboardadvertising and canopyadvertising); audio
or video public address advertising and messageboard advertising; programs;electronic insertion
and other formsof virtual signage; advertising on or in schedules, admissiontickets and yearbooks;
all other print and display advertising; promotionalevents sponsoredby advertisers; advertising
display items wornor carried by concessionaires or personnel (such as ushers and ticketakers)
engagedin the operation of any Event; and logos, slogans or other formsof advertising affixed to
or included with such items including but not limited to: cups, hats, T-shirts; advertising of
Concessions (including menuboards and point of purchase concession advertising within the
Stadiumor within the ConcessionRights Area); advertising through BroadcastRights, advertising
through Telecommunications Rights; advertising through DomainNameRights; and other
concession, promotional or premiumitems, excluding NamingRights, Branding Rights, Service
Rights and Pourage Rights.
"Affiliate" shall have the meaningset forth in the Lease Agreements.
"Ambush
Marketing"meansany marketingand/or promotional activities or the sale of any
consumableor non-consumableconcessions by Persons whoare either unaffiliated with or not
licensed or sanctioned by any Party hereto (an "Independent Party") and which seeks to
misappropriateor capitalize on the goodwilland commercialopportunities generated, from time to
time, by any Party with respect to either (x) any Event at the Stadiumor on the Complex
Grounds
Bookedby such Party (including any part of the Spring Rodeoand the RodeoFestival held elsewhere
in the AstrodomainComplexpursuant to the Existing RodeoLease) or (y) any consumableor nonconsumableconcessions generated from such Event (including any part of the Spring Rodeoand the
RodeoFestival) whetheror not any such IndependentParty marketsor sells third party licensed event
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or sports trademarks,logos or other intellectual propertyrights or uses substitute or altemateimages
and symbolsin an attempt to sell, marketor promoteany items similar to any Concessionsor (z) any
Advertisingor Signageof or fromsuch Event or any other advertising or signage that is permitted
by the Rodeoduring the Spring Rodeo or RodeoFestival pursuant to the Principal Project
Documents.
"AmenitiesPackage"meanscollectively, any amenities (that do not constitute NamingRights
or Signage) that a Tenant or Landlord mayprovide to the NamingRights holders or beneficiary,
Sponsorsand/or licensees of Suites and/orholders of tickets that are separate and additional to such
Person’s right to view a Tenant Event, Tenant Non-Eventor Landlord Event including by wayof
example,but not limitation, media, programadvertising, hospitality and other benefits that allow
such Personto be associated with the Team,the Rodeoor the Landlord,as the case maybe, or have
sometype of official status with the Team,the Rodeoor the Landlord and which the Team,the
Rodeoand/or the Landlord(as the case maybe) havethe right to provide under the Principal Project
Documentsor whichare otherwise not prohibited hereunder and thereunder.
"Appropriation"means,with respect to any paymentobligation or other monetaryobligation
of the Countythat mayfromtime to time exist or arise under any of the Principal Project Documents
during a fiscal year, the approvaland setting aside by the Countyof an adequateamountof funds to
satisfy the paymentobligation or other monetaryobligation of the Landlordor the County.
"ApprovedAmount"has the meaningset forth in Section 10.3 hereof.
"Arbitration Procedures"shall have the meaningset forth on Exhibit Aattached hereto.
"AstrodomainComplex"has the meaningset forth in the TeamLease.
"Astrodomain Joint Marketing Terms and Conditions" has the meaning set forth in
Section 5.9.
"Benefits Revenues"meansany revenues derived from the sale of Amenities Packages.
"Black-out Period" meansthe period from December15 through the following April 15.
"BondInsurance Period" has the meaningset forth in the Lease Agreements.
"BondInsurer" has the meaningset forth in the Lease Agreements.
"Book," "Booked"and other forms of that term, have the meaningset forth in the Lease
Agreements.
"BrandingRights" meansthe exclusive right to designatethose productsand retail rights that
maybe sold, displayed or delivered on an exclusive or non-exclusivebasis to, at or in the area in
question and excludes Pourage Rights and Service Rights.
"BroadcastRights" has the meaningset forth in the License Agreements.
"Business Center" meansconference roomsand meeting roomsin the Stadiumas shownin
the Plans depicted on Exhibit "B" attached hereto.
"Capital Repair" or "Capital Repairs" has the meaningset forth in the Lease Agreements.
"Capital Repair Committee"has the meaningset forth in Section 10.1 hereof.
"Capital Repair Expenses"has the meaningset forth in the Lease Agreements.
"Capital Repair ReserveAccount"has the meaningset forth in the Lease Agreements.
"Capital Repair ReserveFund" has the meaningset forth in the Lease Agreements.
"Casualty Repair Work"has the meaningset forth in the Lease Agreements.
"City" meansthe City of Houston, Texas, a municipal corporation and HomeRule City.
"Club" meansthe private club facilities
attached hereto.
on the Club Levels as depicted on Exhibit "C"
"ClubLevel"meansthe level(s) of the Stadiumcontaininglounges, restaurants, entertainment
areas and Club Seats as depicted on Exhibit "D" attached hereto, as the samemaybe modified by
mutual agreementof the Parties.
"Club Seats" meansthose seats located in the Club Level(s) of the Stadium.
"ComparableFacilities" has the meaningset forth in the Lease Agreements.
"Comparable
Users" shall meanand refer to (i) professional football teamsfranchised by the
NFL;and (ii) other customaryusers of Comparable
Facilities such as promotersof concerts, family
shows,conventions and other public events customarily held in ComparableFacilities.
"ComplexGrounds"has the meaningset forth in the TeamLease.
"ComplexManager"meansSMG,a Pennsylvania general partnership or any successor but
only to the extent that such successor (i) is approvedby the Landlordfor the day-to-daymanagement
and operations of the AstrodomainComplexand the Additional Parking Landand (ii) satisfies the
ManagementStandards.
"ConcessionAgreement"meansthe agreement(s) entered into with the Concessionaire(s)
provide the ConcessionOperations as contemplatedby Section 5.1 hereof.
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"ConcessionFacilities" meansany concessionstands, vendors commissaries,carts, kiosks,
condimentstands, novelty stands, portable specialty carts, food courts, and other permanentor
temporarystructures for Concessionsor at whichConcessionshall be prepared, stored, served and/or
offered or distributed for sale.
"ConcessionOperations" meansthe exercise and operation of all ConcessionRights within
the ConcessionRights Area.
"Concession Revenues" means all revenues generated or derived from the sale of
Concessionsin the ConcessionRights Area, but not (i) any revenuesgenerated or derived from the
sale of consumableor non-consumableconcessions by or on behalf of the Rodeopursuant to the
RodeoLease or the Existing RodeoLease or (ii) any revenues generated or derived from the Joint
Club/Rodeo
Store, the TeamFacilities or the Practice Facilities.
"ConcessionRights" means,collectively, the right to license, sell, display, distribute, and
store all Concessionswithin the ConcessionRights Area, but excluding the right during Rodeo
TenantEventsor RodeoTenant Non-Eventsto license, sell, display, and store those consumableand
non-consumable
concessionsthat the Rodeohas the right to license, sell, display, distribute or store
for or during any RodeoTenant Events or RodeoTenant Non-Eventswithin the ConcessionRights
Area pursuant to the terms of the RodeoLease or the Existing Rodeo Lease. Subject to the
provisions of Section 5.1 and the rights of the Rodeowith respect to the sameduring RodeoTenant
Events and RodeoTenant Non-Eventspursuant to the RodeoLease and Existing RodeoLease, the
ConcessionRights shall include the right to assemble,stage, display, operate, locate and/or store
ConcessionFacilities.
"ConcessionRights Area" means,all areas within the Stadium, Highly Restricted Area and
ComplexGrounds(but specifically excluding the Astrodome,the Exhibition Hall, the Astroarena,
the Joint Club/Rodeo
Store, the TeamFacilities, the Practice Facilities, the RodeoFacilities, and any
other future buildings permitted under Section 7.2 hereof and the improvementspermitted pursuant
to Section 7.1 hereof) in which the Team, Rodeo and Landlord and their jointly licensed
Concessionaire(s)under Section 5.1 shall be permitted to assemble,stage, display, operate, locate
and/or store ConcessionFacilities pursuant to Section 5.1. Withrespect to any of the foregoingareas
in which the Rodeohas any Pourage Rights pursuant to the RodeoLease or the Existing Rodeo
Leaseor the right to license, sell, distribute, or store any consumable
or non-consumable
concessions
for or during RodeoTenant Events or RodeoTenant Non-Eventspursuant to the terms of the Rodeo
Lease or the Existing RodeoLease, the ConcessionRights Area under this Agreementshall exclude
such areas tO the extent of such rights of the Rodeounder the RodeoLease or the Existing Rodeo
Lease. TheConcessionRights Area within the Parking Facilities outside of the Highly Restricted
Area located on the ComplexGrounds during times whenthere occurs both TeamTenant Events
(other than Football HomeGamesfor which no Landlord approval shall be required) and Landlord
Events(to the extent permitted by the TeamLease) shall be subject to the mutual approval of the
Teamand the Landlord.
"Concessionaire(s)" meansany Person(s) operating the ConcessionOperations.
"Concessions" means, collectively,
any and all Consumable Concessions and
Non-Consumable
Concessions but shall exclude Pourage Rights and Branding Rights.
"ConcessionsSignage" meansSignage that identifies Concessions.
"Conflicted Event"has the meaningset forth in Section 3.2.
"Consumable
Concessions"means,in the ConcessionRights Area, collectively, the sale and
service of food and beverages, the sale and service of alcoholic beverages(subject to procurement
of all necessarylicenses and permits required by any Governmental
Authority), catering and banquet
sales and services (including, but not limited to, catering service with respect to any Suites), all
the foregoingrelated to the Eventsheld at the Stadium.
"County"has the meaningset forth in the Lease Agreements.
"DesignCriteria" has the meaningset forth in the Project Agreement.
"Dispute or Controversy"has the meaningset forth in Section 15.1.
"DomainNameRights" has the meaningset forth in the License Agreements.
"Effective Date" is defined in the first paragraphof this Agreement.
"EnforceableContracts" has the meaningset forth in Section 12.1.
"Event" meanseither a Tenant Event or a LandlordEvent.
"Eventof Default" is defined in Section 14.1 hereof.
"Exclusivity Right(s)" meansany exclusive right, of whateverkind or nature that any Party
has a right to grant under the terms of the Principal Project Documents
that is included in (i) any
Pourage Rights, Branding Rights, Service Rights, NamingRights, Signage, Concession Rights
and/or Fixed PermanentSignagerights, (ii) any Fixed Rotational Signagerights sold by a Tenantfor
the duration of such Tenant’sSix-Month
Period, (iii) the rights granted to the Rodeounder the Rodeo
Lease or the Existing RodeoLease, and (iv) the rights granted to the Teamunder the TeamLease.
Exclusivity Rights are subject to change, from time to time, during the Term.
"Exhibition Hall" has the meaningset forth in the Lease Agreements.
"Existing Letter Agreement"has the meaningset forth in the Lease Agreements.
"Existing RodeoLease" meansthe Rodeo’sexisting lease of the AstrodomainComplex,as
more fully described on Exhibit "E" hereto, as amendedby the RodeoLease Amendment,
as the
samemaybe further amended,supplemented,modified, renewedor extended, from time to time,
provided howeverno further such amendment,supplement, modification, renewal or extension shall
be effective against the Teamif the terms thereof conflict with the terms of the other Principal
Project Documents.
"Fast TrackArbitration" has the meaningset forth in Exhibit "A" hereof.
"Fixed PermanentSignage" means(i) all Signage, other than Fixed Rotational Signageand
Temporary
Signage,that is located within the Stadiumor is on the Stadiumbuilding itself and which
in either case is permanentlyaffixed to the Stadiumbuilding, (ii) the Signageon the Marquee(s),
(iii) Advertising,if any, located on a webpageestablished for the benefit of the Stadium(but not
County’s, the Landlord’s, Team’sor Rodeo’sownwebpages). With respect to the Fixed Permanent
Signagelocated within the Stadium,the placementof such Signageshall be limited to the following
areas: (i) Stadiumseating bowl, but only to the extent that the Signageis not normallyvisible
television camerasbroadcasting the Event (e.g., cupholders, etc.), unless exceptions are mutually
agreed upon betweenthe Teamand Rodeoand (ii) other areas within the Stadium, other than the
Stadiumseating bowl, such as concourses, marquees,levels (gate, area, room, activity or similar
entity), NamingRights Signage and Concessions Signage. The Fixed Permanent Signage in the
Stadiumseating bowlwill not rotate or changeduring an Event.
"Fixed Rotational Signage" meansthe Signagein the Stadiumseating bowlon the facades
betweenthe levels of the Stadiumand on the Scoreboardarea whichis permanentlyaffixed to the
Stadium,but whichhas ad copy that can rotate during an Event.
"Football HomeGames"has the meaningset forth in the TeamLease.
"Fulfillment Costs" meansall reasonable out-of-pocketcosts incurred for (i) the production
and fabrication (to the extent not in the Project Budget)of Signageand Advertising,(ii) maintaining
the Advertisingcopyinstalled in the Signage,and (iii) sales, including third party agencycosts and
commissions and commissions (of no more than fi~een percent (15%)) payable to in-house
¯ marketingstaff of either the Team,the Rodeoor the Landlordin connectionwith satisfying all
obligations to any NamingRights holders or Sponsors in respect thereof. In no event shall
Fulfillment Costs include the costs of providing any AmenitiesPackageassociated therewith.
"FundingAgreement"has the meaningset forth in the Lease Agreements.
"GameDay"has the meaningset forth in the TeamLease.
"GeneralSeating" meansall of the seats at the Stadiumthat are not Premium
Seating.
"HaloSuites" meansthose Suites, if constructed, as depicted on Exhibit "F" attached hereto.
"Highly Restricted Area" meansthat portion of the AstrodomainComplexas depicted on
Exhibit "G" attached hereto whicharea constitutes a limited area surroundingthe Stadium.
"Incidental Events" has the meaningset forth in the Lease Agreements.
"Insurance Account"has the meaningset forth in the Lease Agreements.
"Insurance Fund"has the meaningset forth in Article 11.
"Insurance Proceeds" has the meaningset forth in the Lease Agreements.
"Interest Rate" has the meaningset forth in the LeaseAgreements.
"Interlocal Agreement"has the meaningset forth in the FundingAgreement.
"Joint Club/RodeoStore" has the meaningset forth in the TeamLease.
"Joint Suites" has the meaningset forth in Section 8.1.
"LandlordDefault" has the meaningset forth in the Lease Agreements.
"LandlordEvent" meansany event held at the AstrodomainComplex,except Tenant Events,
and Tenant Non-Events,but including, without limitation, Special Events, concerts, motorsports,
Recurring Events, amateursports, WorldClass/National events that are not Special, Events, and
subject to the provisions of this Agreement
and the other Principal Project Documents,
professional
sports and sports entertainmentevents.
"LandlordEvent Day"meansthe entirety of a day on whicha LandlordEvent is held at the
Astrodomain Complex.
"LandlordFailure" has the meaningset forth in the Lease Agreements.
"LandlordTransfer" has the meaningset forth in Section 17.3.
"Landlord’s Land" has the meaninggiven to it in the Lease Agreements.
"Landlord’sParking Spaces"meansthose parking spaces as depicted on Exhibit "H" attached
hereto.
"Landlord’sSuite" has the meaningset forth in Section 8.9.
"Lease Agreement(s)"individually refers to either the TeamLease or the RodeoLeaseand,
as the context mayrequire, collectively refers to both the TeamLease and the RodeoLease.
"Legal Holiday" has the meaningset forth in the Lease Agreements.
8
"License Agreements"means, collectively the NFLClub License Agreementand the Rodeo
License Agreement.
"Maintenance"has the meaningset forth in the Lease Agreements.
"Maior Convention" meansa national convention or meeting presented by a particular
industry, which(i) uses the Stadiumand at least seventy-five percent (75%)of the aggregateleasable
exhibition space within the Exhibition Hall, (ii) is not open to the general public, and (iii)
projected to have attendance in excess of 25,000 people. Examplesof a MajorConventioninclude
the Off-Shore TechnologyConference, the National Homebuilder’sConvention, COMDEX
and the
Republican or DemocraticNational Convention.
"Management
Committee"has the meaningset forth in Section 2.1 hereof.
"Management
Standards" shall meanand refer to the satisfaction of all of the following
requirementswith respect to any Person:
(i)
that such Personshall have nationally recognizedexpertise in the management
and operation of public multi-purposesports and entertainmentand public assemblyfacilities
with other ComparableFacilities;
(ii) that such Personshall havesufficient experiencedon-site personnel necessary
to manageand operate the AstrodomainComplexand the Additional Parking Landincluding
the Stadiumin a First Class Conditionconsistent with other Comparable
Facilities operated
for ComparableUsers; and
(iii) that such Personhas the financial ability to meetits obligations.
"Marquee(s)" meansthe marqueeor marquees currently located on the ComplexGrounds
and all future marqueesconstructed on the AstrodomainComplex,as agreed to by the Parties.
"Material Additional Landlord Work"meansAdditional Landlord Workthat (i) does not
substantially conformin any material respect to the DesignCriteria or (ii) materiallyalters the nature
or character of the Stadium, the LeasedPremises, or any material portion of the Stadiumor the
Leased Premises.
"Material Additional Tenant Work"means Additional Tenant Workthat (i) does not
substantially conformin anymaterialrespect to the DesignCriteria, (ii) materially alters the nature
or character of the LeasedPremisesor any material portion thereof, or (iii) whencompletewill
increase, in any material respect, Landlord’sMaintenanceor Capital Repairobligations under either
Lease Agreement.
"MBIA"means MBIAInsurance Corporation.
"NamingRights" has the meaningset forth in the License Agreements.
"NamingRights Agreement"has the meaningset forth in the License Agreements.
"NamingRights License" meansthe joint license of the NamingRights from the Teamand
the Rodeo.
"NamingRights Licensee" meansthe licensee under the NamingRights Agreement.
"NamingRights Signage" meansany Signage identifying the NamingRights.
"Net ConcessionRevenues"has the meaningset forth in Section 5.5.
"NFL"has the meaningset forth in the Lease Agreements.
"NFLClub License Agreement"has the meaningset forth in the TeamLease.
"Non-Appropriation" means and shall be deemedto have occurred with respect to any
paymentobligation or other monetaryobligation of the County(in any capacity) that mayarise under
any of the Principal Project Documents
during any fiscal year that is undisputedor for whichthe
Countyis determinedto haveliability, if the Countyfails to makean Appropriationwithin sufficient
time to avoid a LandlordDefault under a respective Lease Agreement.
"Non-Competitive
Concert(s)" means,any concert that (i) does not fall within the following
general musiccategories or does not include any performanceswithin the following general music
categories: Country, Adult Contemporary,ContemporaryHit, R&B,Urban Contemporary, Middle
of The Road Rockand Roll, Light Rock or RockCross-Over (formerly knownas Pop or Top 40),
Contemporary
Christian, Christian Rock,Comedy,Tejano, Latin, or wasnot represented in concerts
or performancesheld by the Rodeoin the Stadiumor elsewhere in the AstrodomainComplexduring
the ten (10) year period precedingthe date in questionor (ii) is within any of the foregoinggeneral
music categories (other than Country, Adult Contemporary,Contemporary
Hit, Tejano, Latin, Light
Rock or Rock Cross-Over (formerly knownas Pop or Top 40), but in the Rodeo’s commercially
reasonable judgment,either (x) features entertainers that at such time hold too nan’owlydefined
small audience appeal for the Rodeo’spurposes in holding RodeoTenant Events or (y) whohave
require presentation, production or contract requirementsthat are unacceptable to the Rodeoor
require productioncosts that are unacceptableto the Rodeo.For the purposeshereof the phrase "too
narrowly defined or small audience appeal" shall meanBroadway,Opera and the Symphonyor
showswherecontent or presentation values wouldnot be reasonably acceptable to the Rodeoat such
time for presentation at the Spring Rodeo.
"Non-Consumable
Concessions" meansthe sale in or from the Concession Rights Area of
souvenirs, apparel and merchandise(including, withoutlimitation, NFLnovelties and licensed items)
and other non-edible items, goods, services, equipmentand wares.
10
"Non-Programmed
Space" meansthe areas within the Stadiumused or set aside for future
developmentfor retail and non-retail uses (except the Joint Club/RodeoStore, the Concession
Rights Areaand the TenantFacilities), as depicted on Exhibit "I" attached hereto.
"Non-RelocationAgreement"has the meaningset forth in the TeamLease.
"Notice of Offer" has the meaningset forth in Section 18.22.
"Offer" has the meaningset forth in Section 18.22.
"OpenRecordsAct" has the meaningset forth in Section 16.3.
"OpinionRequest"has the meaningset forth in Section 16.3.
"Option"has the meaningset forth in Section 18.22.
"Other Buildings" meansthe Astrodome,Exhibition Hall and Astroarena, and other buildings
on the AstrodomainComplexconstructed from time to time in compliancewith Section 7.2 of this
Agreement.
"OwnedAffiliate" has the meaningset forth in Section 5.10.
"Parking Facilities" has the meaningset forth in the TeamLease.
"Parking Letter" shall have the samemeaningset forth in the Lease Agreements.
"Parking Requirements"shall meanthose parking requirements imposedupon Landlord for
the benefit of each Tenantas set forth in each of the LeaseAgreements.
"Party Ambush
Marketing"meansany marketingand/or promotionalactivities or sale of any
consumableor non-consumableconcessions by any Party or any Person licensed, authorized or
controlled by such Party or any Person that is an Affiliate, tenant or subtenant of such Party and
whichseeks to misappropriateor capitalize on the goodwilland commercialopportunities generated,
fromtime to time, by any other Party with respect to (x) any Eventat the Stadiumor on the Complex
GroundsBookedby any such other Party (including any part of the Spring Rodeoand the Rodeo
Festival held elsewhere in the AstrodomainComplexpursuant to the Existing RodeoLease) or
(y) any consumableor non-consumableconcessions generated from any such Event (including
part of the Spring Rodeoand the RodeoFestival held elsewhere in the AstrodomainComplex
pursuant to the Existing RodeoLease) or (z) any Advertising or Signageof or from any such Event
or related to such Eventor any other advertising or signagethat is permittedby the Rodeoduring any
part of the Spring Rodeoor RodeoFestival held elsewhere in the AstrodomainComplexpursuant
to the Existing RodeoLease or pursuant to the Principal Project Documents.
"Permitted Transfer" has the meaningset forth in the Lease Agreements.
11
"Person" meansany individual or group of individuals or any entity.
"Physical Obsolescence"and "Physically Obsolete" has the meaningset forth in the Lease
Agreements.
"Pourage Rights" meansthe exclusive right in accordance with GovernmentalRules to
designateon an exclusiveor non-exclusivebasis the providerof beveragebrandsto, at or in the area
in question.
"Practice Facilities" has the meaningset forth in the TeamLease.
"Practice Facilities Land"has the meaningset forth in the TeamLease.
"Preferred RodeoDates" meanscollectively (i) a forty (40) day period each calendar
during the Spring RodeoWindow(the "Spring RodeoDates") selected by Rodeofor its Spring
Rodeoin accordancewith the terms of the RodeoLease and (ii) the eighteen (18) day period
calendar year during the RodeoFestival Window
(the "RodeoFestival Dates") selected by Rodeo
for its RodeoFestival in accordancewith the terms of the RodeoLease.
"PremiumSeating" meansthe Suites and Club Seats at the Stadiumand any other type of
preferred location seating available at the Stadium.
"Principal Project Documents"means the Project Agreement, this Stadium Tri-Party
Agreement,the Lease Agreements,the Existing RodeoLease, the License Agreements, the NonRelocation Agreement,the Recognition and Attornment Agreementsand the Funding Agreement,
as the samemaybe amended,supplemented,modified, renewedor extended from time to time in
accordancewith their respective terms.
"Private Contract Rights" has the meaningset forth in Section 16.1 hereof.
"Project Agreement"meansthat certain Project Agreementdated as of the Effective Date,
by and amongLandlord, Teamand Rodeo, as the same maybe amended, supplemented, modified,
renewedor extended from time to time.
"Project Budget"has the meaningset forth in the Project Agreement.
"PSL EscrowAgreement"has the meaningset forth in the Funding Agreement.
"PSL MarketingAgreement"has the meaningset forth in the Funding Agreement.
"Recognition and Attornment Agreements" has the meaning set forth in the Funding
Agreement.
12
"RecurringEvents" meanstractor pull events, automobileor motorcycleevents and similar
"dirt" events held at the Stadiumand other events at the Stadiumthat recur from year to year or at
regularly scheduledintervals.
"RegularArbitration" has the meaningset forth in Exhibit "A" hereof.
"RequestedWork"has the meaningset forth in Section 9.1 hereof.
"Required Date of Substantial Completion" has the meaning set forth in the Project
Agreement.
"Restricted LandArea"has the meaningset forth in Section 5.8 hereof.
"Restricted Portions of the Roof’ has the meaningset forth in the FundingAgreement.
"RodeoClubs" has the meaningset forth in the RodeoLease.
"RodeoFacilities" meanscollectively the Tenant’s Facilities described in the RodeoLease
and the Existing RodeoLease.
"RodeoFestival" has the meaninggiven to such term in the RodeoLease.
"RodeoFestival Dates" has the meaningset forth in the definition of the term "Preferred
Rodeo Dates."
"RodeoFestival Window"
shall have the meaningset forth in the RodeoLease.
"RodeoLand" has the meaningset forth in the Lease Agreements.
"Rodeo Lease" meansthat certain HLSRStadium Lease Agreementdated as of the same
date as this Agreementby and between the Landlord and Rodeo, as the same maybe amended,
supplemented, modified, renewed or extended from time to time in accordance with the terms
thereof and hereof.
"Rodeo Lease Amendment"
meansthat certain 2001 Amendment
to Lease dated as of the
same date as this Agreementby and between the Landlord and Rodeo.
"RodeoLicense Agreement"has the meaningset forth in the RodeoLease.
"Rodeo’sParking Spaces" meansthe "Tenant’s Parking Spaces" as such term is defined in
the RodeoLease and the RodeoLease Amendment,
collectively.
"RodeoTenant Non-Events"means, collectively,
RodeoLease and the Existing RodeoLease.
13
the Tenant Non-Eventsset forth in the
"Scoreboards"shall meanthe Stadiumscoreboards including the attendant soundsystems,
messageboards and gameclocks.
"Service Rights" meansthe exclusive right tO designate service rights to be providedon an
exclusiveor non-exclusivebasis to, at or in the area in question.
"Signage" shall meanall signage and any and all other media (whether nowexisting or
developedin the future) used for Advertising or marketingpurposes in the Stadium, the Highly
Restricted Area and/or the Marquees,including, but not limited to, any such signage or other
Advertising media located in or on the Stadium, the Scoreboard, the video boards (including
"JumboTron"-type
screens), Advertising signs, banners or displays, time clocks, messageboards,
billboards, public address announcements,and any other media(whether nowexisting or developed
in the future) located in, on or uponthe Stadium,the HighlyRestricted Area and the Marquees(as
restricted herein) through which a Person holding fights pursuant to an agreementwith another
advertises or marketsor mayadvertise or marketany products, services, events or any other items.
"Six-MonthPeriods" means,(i) with respect to the Team,the six monthperiod commencing
on August1, and (ii) with respect to the Rodeo,the six monthperiod commencing
on February
providedhoweverif the Super Bowl(as defined in the TeamLease) is held in the Stadiumin 2004,
(x) for calendar year 2004 the Six-MonthPeriod with respect to the Rodeoshall commence
February9 and end on August8, 2004, (y) for calendar year 2003, the Six-MonthPeriod with respect
to the Teamfor such year shall commenceon August 1, 2003 and end on February 8, 2004 and
(z) for calendar year 2004 the Six-MonthPeriod with respect to the Teamfor such year shall
commenceon August 9, 2004 and end on January 30, 2005.
"SkyBoxSuites" meansthose Suites, if constructed, situated on the East side of the Stadium
as depicted on Exhibit "J" attached hereto.
"Special Events" meansMajor Conventions, the NFLWorld Championship(i.e., Super
Bowl), Olympics, World Cup Soccer (Championship Playoffs and Championship Game), NCAA
Regional ChampionshipGamesor Tournamentsand any other nationally sanctioned championship
college sports regional or final gameor tournamentof similar national standing as the NCAA
Men’s
Basketball "Sweet Sixteen" or "Final Four" Tournaments.
"Sponsors"meansthe radio, television, Signage,promotional,Advertisingand other sponsors
of the Landlord, the Tenants, the LandlordEvents or the Tenant Events.
"Sports Authority" has the meaningset forth in the Lease Agreements.
"Spring Rodeo"has the meaninggiven to such term in the RodeoLease.
"Spring RodeoDates" has the meaningset forth in this definition of the term "Preferred
RodeoDates."
14
"Spring RodeoWindow"
shall have the meaningset forth in the RodeoLease.
"StadiumContracts" has the meaningset forth in Section 18.2.
"StadiumProject Improvements
Budget"has the meaningset forth in the Project Agreement.
"StadiumUsers" meansall other tenants and users of the Stadium, other than the Landlord
and the Tenants.
"Statue" has the meaningset forth in the RodeoLease.
"Suites" shall have the meaningset forth in the TeamLease.
"TeamFacilities" meansthe "Tenant’s Facilities" as defined in the TeamLease.
"TeamLease" meansthat certain NFLClub Stadium Lease Agreementdated as of the same
date as this Agreementby and between the Landlord and Team, as the same maybe amended,
supplemented, modified, renewedor extended from time to time in accordance with the terms
thereof and hereof.
"TeamTenant Non-Events" has the meaning given to "Tenant Non-Events" in the Team
Lease.
"Team’sParking Spaces"meansthe "Tenant’s Parking Spaces"as such term is defined in the
TeamLease.
"TelecommunicationsProducts or Services" meanslocal and long-distance land line and
wireless telephone services, yellow pages and directory services (including on-line and Internet
based), network integration, inside wiring and cabling, fiber deployment, basic network
infrastructure, public communications,
pay telephones, calling cards (including prepaid), voice mail,
Internet services, programming,
transmissionof voice and data, interactive communications,
virtual
reality or enhancementsof the same, land line and wireless video and data services, cable and
wireless television services, paging services, homesecurity services and telecommunications
equipmentand any other similar or related products or services.
"Telecommunications
Rights" meansany and all of the rights to the full use and enjoyment
of, andto control, provide,conduct,lease, license, grant concessionswith respect to and contractfor,
TelecommunicationProducts or Services to or for the Stadium and the Highly Restricted Area,
including the right to sell or license the right to provideTelecommunications
Products or Services
on an exclusive or nonexclusivebasis.
"Temporary_
Advertising" meansAdvertisingin or on the LeasedPremisesin connectionwith
any Eventwhichis to be removedor terminatedat the conclusionof such Event, but not in conflict
with NamingRights, Exclusivity Rights, Branding Rights, Pourage Rights, Service Rights or
15
ConcessionRights granted to Tenants under the Principal Project Documents,or the provisions of
Section 5.8 hereof; provided, however, advertising in Event programs shall not be deemeda
violation of Exclusivity Rights.
"TemporarySignage" meansSignage in or on the Leased Premises in connection with any
Event whichis not permanentlyaffixed and whichwill be removedor terminated at the conclusion
of such Event, including, without limitation, video commercialsand other electronic display
recognition, sponsoredvignettes or kiosks, temporarybanners, stage Signage, chuckwagonsigns,
blimp signs and Signageon Event participants, but not in conflict with NamingRights, Exclusivity
Rights, BrandingRights, PourageRights, Service Rights or ConcessionRights granted to Tenants
under the Principal Project Documents,or the provisions of Section 5.8 hereof; provided, however,
advertising in Eventprogramsshall not be deemeda violation of Exclusivity Rights.
"Tenant(s)" individually refers to either the Teamor Rodeoand collectively refers to both
the Teamand Rodeo.
"Tenant Event(s)" collectively refers, with respect to the Team,to the Tenant Eventsand
Football HomeGamesdescribed in the TeamLease and with respect to the Rodeo, to the Tenant
Events described in the RodeoLease and the Existing RodeoLease, collectively (including the
Spring Rodeoand RodeoFestival).
"TenantEvent Day"meansthe entirety of a day on whicha Tenant Event is played or held,
as applicable, at the LeasedPremises.
"TenantFacilities" meansthe TeamFacilities and the RodeoFacilities.
"Tenant Non-Events"collectively refers to, with respect to the Team,Tenant Non-Events
described in the TeamLease and, with respect to the Rodeo,Tenant Non-Eventsdescribed in the
RodeoLease and Existing RodeoLease.
"Tenant’s Self-Help Rights" has the meaningset forth in the Lease Agreements.
"Term" meansthe term of this Agreement, which is co-terminous (survives as to the
non-terminatedor non-terminatingTenant, if any, if only one Lease terminates) with the LeaseTerm
of each Lease Agreement.
"Toppin~Fee" has the meaningset forth in Section 18.22.
"Transfer" has the meaningset forth in Section 17.1.
"Walkway"
has the meaningset forth in Section 4.4.
"Warranty/OtherClaim"has the meaningassigned in Section 12.2.
16
Section 1.2 Rules as to Usage. The following rules shall be followed whenconstruing
words used in this Agreement:
(a)
"Include," "includes" and "including" shall be deemedto be followed
"without limitation" whetheror not they are in fact followedby such wordsor wordsof like
import.
(b)
"Writing," "written" and comparableterms refer to printing, typing, and other
meansof reproducingin a visible form.
(c)
Anyagreement, instrument or GovernmentalRule defined or referred to
this Agreementmeanssuch agreementor instrument or GovernmentalRule as from time to
time amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of GovernmentalRules) by succession
comparable successor GovernmentalRules and includes (in the case of agreements or
instruments) references to all attachmentsthereto and instruments incorporatedtherein.
(d)
Referencesto a Personare also to its permittedsuccessors and assigns.
(e)
Anyterm defined in this Agreementor any of the other Principal Project
-Documentsby reference to any agreement, instrument or GovernmentalRule has such
meaningwhetheror not such agreement, instrument or GovernmentalRule is in effect.
(f)
"Hereof," "herein," "hereunder"and comparableterms refer, unless otherwise
expressly indicated, to the entire agreementor instrument in whichsuch terms are used and
not to any particular article, Section or other subdivision thereof or attachmentthereto.
Referencesin an instrument to "Article," "Section," "Subsection"or another subdivision or
to an attachment are, unless the context otherwise requires, to an article, section,
subsection or subdivision of or an attachment to such agreement or instrument. All
references to exhibits or appendicesin any agreementor instrument that is governedby this
Section 1.2 are to exhibits or appendicesattached to such instrument or agreement.
(g) Pronouns, wheneverused in any agreementor instrument that is governed
this Section 1.2 and of whatevergender, shall include natural Persons, corporations, limited
liability companies,partnerships and associations of every kind and character.
(h)
References to any gender include, unless the context otherwise requires,
references to all genders.
(i)
"and/or."
(j)
The word"or" will have the inclusive meaningrepresented by the phrase
"Shall" and "will" have equal force and effect.
17
(k) Unless otherwise specified, all references to a specific time of day shall
based upon Central Standard Timeor Central Daylight Savings Time, as applicable on the
date in question in Houston,Texas.
(1)
Referencesto "$" or to "dollars" shall meanthe lawful currencyof the United
States of America.
(m) The words "unreasonably withheld" shall mean unreasonably withheld,
conditioned or delayed.
(n) Whereverthe context mayrequire, the singular form of nouns, pronouns and
verbs shall include the plural, and vice-versa.
ARTICLE 2
MANAGEMENT ADVISORY COMMITTEE;
QUALIFIED MANAGER
Section 2.1 Formation. The Landlord, Teamand the Rodeoagree to the appointment of
a ManagementAdvisory Committee(hereinafter referred to as the "ManagementCommittee")to
consult with and advise the Landlordin connection with the management,operation, Maintenance,
repair, alteration and developmentof the Stadium, AstrodomainComplexand any other portion of
the ComplexGrounds. The ManagementCommitteewill be comprised of five (5) members,three
(3) of which will be selected by the Landlord, with the Teamand the Rodeoeach selecting one
additional member.Oneof the membersselected by Landlord must be the Chairmanof the Board
of Harris CountySports &ConventionCorporation(or such person occupyingan equivalent position
if Harris CountySports &ConventionCorporationis not the Landlord). Each party mayremoveand
replace its member(s)and select alternates at its discretion and at any time so long as (a)
Chairman(or such other person described in the preceding sentence) always remains a memberand
(b) the ratio of representation amongthe Landlord, Teamand Rodeoremains 3:1:1.
Section 2.2 Purpose. The purpose of the ManagementCommitteeis to: (a) keep the
Teamand the Rodeofully informed, before any decisions are madeor actions taken on issues
affecting the management,Maintenance, operation, repair, alteration and developmentof the
Stadium and AstrodomainComplexand any other portion of the ComplexGrounds(collectively,
the "Issues") including, withoutlimitation, newlong-termleases or agreementswith potential users,
tenants or service providers at the AstrodomainComplexand any other portion of the Complex
Grounds,or any portions thereof, changesto the identity of the ComplexManager(including all
information reasonably necessary to demonstrate that the ComplexManagersatisfies the
ManagementStandards), changes to Landlord’s risk managementprogram for the Stadium or
AstrodomainComplexand any other portion of the ComplexGrounds, or any portions thereof,
scheduling of Events at the Stadium, AstrodomainComplexand any other portion of the Complex
Grounds,changesto the location of preferred parking areas for holders of Premium
Seating and other
special patrons, invitees and guests of the Tenants, operating, Maintenanceand capital budgetsfor
the Stadiumor the AstrodomainComplexand any other portion of the ComplexGrounds,or portion
18
thereof, the issuanceof press releases relating to topics of material interest to the Tenantsand any
other significant occurrence at the AstrodomainComplexand any other portion of the Complex
Groundswhich mayaffect the Team’sor Rodeo’suse or enjoymentof the AstrodomainComplexand
any other portion of the ComplexGroundsand (b) provide the Teamand the Rodeoa meaningful
platform from which they mayvoice their opinions and recommendations
regarding the Issues. The
foregoingis merelyan expressionof the Parties intent and shall not create any legal obligations on
any Party for failure to act in accordancewith such purposesor limit Landlord’sauthority to proceed
with regard to the management,operation, Maintenance,repair and alteration of the Astrodomain
Complex,any other portion of the ComplexGroundsand the Stadium. The Landlordrecognizes the
need for, and encourages, recommendations from the ManagementCommittee as to the
management,operation, Maintenance, repair, alteration and developmentof the Astrodomain
Complex, any other portion of the ComplexGrounds and the Stadium and, in furtherance of
obtaining fully informedrecommendations,Landlordagrees that the Teamand Rodeowill have full
access to all information pertaining to any Issues. The Team,the Rodeo, and their respective
Management
Committeememberswill agree in writing to keep such information confidential by
executing and delivering to Landlorda reasonably acceptable confidentiality agreement.
Section 2.3 Meetingsand Procedures. The ManagementCommitteeshall meet not less
than once per monthon a date and at a time and place mutually agreeable to the membersof the
ManagementCommittee. At the first meeting of the ManagementCommittee, the Management
Committee(by unanimousconsent of its members)shall establish mutually acceptable regular
meetingdates, notice requirementsfor meetings, proceduresfor the conductof meetings(which may
include the conduct of meetings by telephone and quorumrequirements) and procedures for voting
and making recommendationsto the Landlord. One memberof the ManagementCommitteeshall
be designated to maintain minutesof all meetings.
Section 2.4 Authority. Anyand all recommendationsof the ManagementCommitteeto
the Landlordshall not be binding on the Landlordand the Landlordwill have final decision making
authority with regard to matters involvingthe management,
operation, Maintenance,repair, alteration
and developmentof the AstrodomainComplex,any other portion of the ComplexGroundsand the
Stadium, subject to the terms and conditions of the Principal Project Documents.Landlord and
Landlord’s representatives on the Management
Committeewill cooperate with the Teamand Rodeo
and will give due Consideration to the recommendationsof the Teammemberand Rodeomember
on the ManagementCommittee.
Section 2.5 Qualified Manager.At all times during the Termof the Lease Agreements,
Landlord shall employand maintain a ComplexManagerthat satisfies the Management
Standards.
19
ARTICLE 3
SCHEDULING
Section 3.1 SchedulingPriorities for TenantEvents. Notwithstanding anything to the
contrary contained in the Lease Agreementsor any of the other Principal Project Documents,the
Parties acknowledgeand agree that (i) Teamshall have the right to BookTeamTenant Events and
Team Tenant Non-Events in accordance with the terms and conditions of the Team Lease
Agreement,(ii) the Rodeoshall have the right to BookRodeoTenant Events and RodeoTenant
Non-Events in accordance with the terms and conditions of the Rodeo Lease Agreement and
(iii) neither Lease Agreementwill be modifiedor amendedin such a manneras to adversely affect
or limit either the Team’sor Rodeo’sright to Booktheir respective Tenant Events and Tenant
Non-Eventsin accordancewith their respective Lease Agreements,as they exist on the Effective
Date.
Section 3.2 Conflicted Events. To the extent that a Football HomeGameis scheduled
by the NFLfor any reason to be held during the Spring RodeoDates or RodeoFestival Dates or on
a date on which a Landlord Event is Bookedin accordance with the Principal Project Documents
(such conflict being referred to herein as a "Conflicted Event"), Teamshall not hold such Football
HomeGameduring such time, but the Teamshall have the option to Booksuch Football Home
Gameon another date permitted by the NFLthat is not a Spring RodeoDate or RodeoFestival Date
and wouldnot result in a Conflicted Event.
Section 3.3 Postponements; Scheduling Priorities for Landlord Events. Landlord
acknowledges
and agrees that, notwithstandingany provision in Section 3.2 to the contrary, if any
TenantEventis not conductedon the original date it wasBookeddue to any of the following which
prevents the applicable Tenantfrom using the Stadium:(i) a LandlordDefault or an Eventof Default
by Landlordunder this Agreementor (ii) a LandlordFailure whichhas not been remediedafter the
Teamor the Rodeo,as the case maybe, has instituted commerciallyreasonable steps to exercise
Tenant’s Self-HelpRights, to the extent practicable, then, in addition to other rights under such
Tenant’s LeaseAgreement,for a period often (10) days following the non-occurrenceof such Tenant
Event, Landlord shall not Bookany Event (not previously Bookedprior to the non-occurrence of
such Tenant Event), without the consent of the Tenant whoseTenantEvent did not occur; provided,
however,if Landlordrequests approvalof either the Teamor the Rodeo(as the case maybe) to Book
any such Event, the Teamor the Rodeo(as the case maybe) must provide Landlordwith the dates
that Tenantis reasonablyconsideringfor re-Bookingthe TenantEventand thereafter Landlordshall
be free to BookEventson any other day. Failure of either the Rodeoor the Teamto re-Booksuch
TenantEventpursuant to the precedingsentence shall not constitute a waiverof the Rodeo’sand the
Team’sright to re-Book such Tenant Event in accordancewith the terms of the Principal Project
Documents
at another time other than on any other date at whichany other Event is already Booked
at the AstrodomainComplex.If a Football HomeGameis not conducted as provided in the first
sentence of this Section 3.3 and the Teamdesires to re-Book such Football HomeGameat the
Stadium, the Teamshall use its goodfaith reasonable efforts to re-Booksuch Football HomeGame
during the Team’sSix MonthPeriod; provided, however,that if the Teamis unable after using such
good faith reasonable efforts to so re-Booksuch Football HomeGameduring the Team’sSix Month
20
Period, the Rodeoin good faith shall cooperate with the Teamin attempting to re-Book suchFootball HomeGameat a time during the Rodeo’sSix MonthPeriod other than on a day Bookedfor
a RodeoTenantEvent or LandlordEvent; provided, further that any re-Bookingof any such Football
HomeGameduring Rodeo’sSix MonthPeriod shall not materially and adversely affect or diminish
the rights of the Rodeogranted in the Principal Project Documents
with respect to the Rodeo’sSix
MonthPeriod, including Advertising rights.
Section 3.4 Additional TeamEvents.
(a)
Withrespect to the scheduling of Additional TeamEvents, the Landlordand
the Teamshall meet periodically during each Lease Year to review the Bookingof Events
for the Stadium and review any proposed Additional TeamEvents proposed to be Booked
by the Teamor any of its Affiliates. TheLandlordand the Teamshall each act in goodfaith
and in a cooperative mannerin an effort to maximizethe use of and resulting revenuesfrom
the Stadiumfor the benefit of the Landlordon the days the LeasedPremisesis utilized by
Landlord for its Landlord Events, and similarly, to maximizethe use of and resulting
revenues from the Stadium for the benefit of Teamon the days the Leased Premises is
utilized for the Additional TeamEvents. The Landlord and Teamshall, in reviewing the
Event Bookings,attempt to create a fair and equitable opportunity for both the Landlord,
with respect to its LandlordEvents,and the Team,with respect to their respective Additional
TeamEvents. The Landlord and the Teamshall take into account any Events of a seasonal
or other regular recurring nature (including extra event days Bookedby the Rodeo)that are
reasonablyexpectedto be recurring events at the Stadium,suchthat those days, to the extent
that the Eventwill be expectedto recur fromyear to year, or at regularly scheduledintervals,
shall not be available to the Teamfor Additional TeamEvents.
(b) TheParties agree that the Teamor an Affiliate thereof mayutilize the Stadium
for any lawful Tenant Event permitted under the TeamLease so long as (i) such Tenant
Eventis not prohibited in the TeamLeaseor under Section 3.5 of this Agreement
and (ii)
not a Recurring Event.
Section 3.5 Non-Competitive Concerts. During the Black-out Period neither the
Landlordnor the Teamshall license, sponsor or Bookany majorconcert event in the Stadiumor any
where else in the AstrodomainComplexexcept for Non-CompetitiveConcerts approved by the
Rodeowhich approval shall not be unreasonablywithheld. Except as set forth in the immediately
preceding sentence and subject to the terms of this Agreementand the other Principal Project
Documents,nothing herein shall restrict a Party from Bookingany other Eventsat the Astrodomain
Complex.AnyDispute between the Parties with respect to Non-CompetitiveConcerts shall be
subject to Fast-TrackArbitration.
Section 3.6 BusinessCenter. Subject to the terms of the Project Agreement,the Landlord
and the Teamhave agreed to construct a Business Center within the Stadium. The cost of the
build-out of the BusinessCenter shall be shared equally betweenthe Landlordand the Team.Each
of the Landlord,Rodeo,and the Teamshall have the right to scheduleuse of the BusinessCenter on
21
a first-come, first-served basis; provided, however, the Business Center maynot be used by
Landlord, Rodeoor the Teamduring the time period on any day whenthe Stadiumhas actually been
openedto admit patrons for a BookedEvent; provided, however,if the Business Center is already
in use for a businessmeetingprior to such time the Party utilizing the BusinessCentershall havea
reasonable period of time to conclude such meeting. The Parties shall reasonably cooperate with
each other in order to schedule each Party’s use of the Business Center. The Team’suse of the
Business Center shall be limited to Teamrelated events, and the Team’sbusiness operations,
including, withoutlimitation, events with Teamsponsorsand suiteholders. In no event shall either
the Rodeoor the Teamsublicense the right to utilize the BusinessCenter to any third Person. All
revenues derived from the Landlord’s use of the Business Center shall belong to Landlord. All
revenues derived from the Team’suse of the Business Center shall belong to the Team.The Team
shall reimburseLandlordfor all reasonable and actual operating costs (without mark-up)incurred
by the Landlordin connectionwith the Team’suse of the Business Center. In connection with the
Rodeo’suse of the Business Center, the Rodeoshall pay to the Landlord, a reasonable charge for
such use, including, the reasonable and actual cost of openingand operating the BusinessCenter
(without mark-up)at times used by the Rodeo,such charge based upona preferred rate similarly
chargedby Landlordto other preferred users (other than the Team,for whichthere shall be no user
fee charged).
Section 3.7 Astrodome.In the event that the Required Date of Substantial Completion
has not occurredby August1, 2002, the Landlord,subject to the provisions of the Principal Project
Documents,shall makethe Astrodome,in lieu of the Stadium, available for Football HomeGames
Bookedto occur after such date on the samebasis as agreed to in the Principal Project Documents
with regard to the Stadium(subject, however,to the next sentenceof this Sectionand to any existing
pourage,branding, service, or concessioncontracts then in effect) but at no cost (and without the
imposition of any Parking Tax or AdmissionsTax) to the Teamor any other Person other than
reimbursementof reasonable staffing and utility expenses directly caused by such use of the
Astrodomefor any such Football HomeGame.Landlord shall use its reasonable efforts to drape
over and cover up any material signage or visible advertising during any such Football HomeGame.
Thesamerights granted to the Teamwith respect to the use of the Astrodomeas herein set forth
shall similarly apply with respect to the use of the Astrodomeunder the circumstancesprovidedin
the Non-RelocationAgreementpursuant to which the Teammayalso use such facility for certain
Football HomeGamesas therein provided.
Section 3.8 Joint Club/RodeoStore. The Teamand the Rodeowill jointly occupy and
operate the Joint Club/RodeoStore. Therelative rights and obligations of the Teamand Rodeoas
between the Teamand the Rodeo, concerning their joint occupancyand operation of the Joint
Club/Rodeo
Store, includingan equitable allocation of operating, staffing andutility costs are subject
to the further mutual agreementof the Teamand the Rodeo.Landlordhereby grants to the Teamand
the Rodeothe exclusive joint right to sell Non-Consumable
Concessionsfrom the Joint Club/Rodeo
Store.
22
ARTICLE 4
PARKING/ACCESS
Section 4.1 Parkin~Aceesson Event Days. Each Party acknowledges and agrees that
while its Eventsare held at the AstrodomainComplex,each of the other Parties (and its respective
employees,contractors, guests, invitees, ownersand corporate representatives) shall havecontinued
use and enjoymentof and access to (a) in the case of the Team,the Team’sFacilities, the Joint
Club/RodeoStore, the Team’sParking Spaces and the Practice Facilities, (b) in the case of the
Rodeo, the RodeoFacilities, the Joint Club/RodeoStore, and the Rodeo’sParking Spaces (but
subject to the provisionsof Section4.3) and (c) in the case of Landlord,(x) its corporateoffices
its ComplexManager’s offices and (y) such other areas of the AstrodomainComplexas are
reasonable and necessary for Landlord and the ComplexManagerto fulfill their respective
obligations as operator of the AstrodomainComplex
and (z) the Landlord’sParking Spaces, and such
other parking spaces as are provided for in the other Principal Project Documents.Duringsuch
periods as are reasonably necessary for those BookedLandlord Events that not only constitute
extra-ordinary, non-reoccurring Events in the AstrodomainComplexbut also reasonably require
relocation of the Team’sParking Spaces and the Rodeo’sParking Spaces, Landlordshall have the
right to temporarily relocate (but not reduce) the Team’sParking Spaces and the Rodeo’sParking
Spacesto other parking areas at the ComplexGrounds,subject to the prior approval of the Rodeo
and the Team,respectively, not to be unreasonably withheld. During RodeoTenant Events, the
Rodeoshall have the right to temporarily relocate (but not reduce) the Team’sParking Spaces
other parking areas within the ComplexGroundsavailable to the Rodeounder the terms of the
RodeoLease, but subject to the following terms and conditions:
(a)
The portion of the Team’sParking Spaces designated as the A Spaces
Exhibit "O" attached hereto maynot be relocated during RodeoTenant Events; and
(b) The portion of the Team’s Parking Spaces designated as B Spaces
Exhibit "O" attached hereto maybe relocated so long as the relocated spaces are within a
reasonable walkingdistance of their original location at a newlocation reasonablyapproved
by the Team,but the fact that such place of relocation is westof KirbyDriveshall not in and
of itself be a basis for such relocated spaces being disapprovedor considerednot within a
reasonablewalkingdistance of their original location.
Except as set forth abovein this Section 4.1, neither the Team’sParking Spaces nor the
Rodeo’sParking Spaces shall be relocated during any Event.
Section 4.2 Parking in General. The Tenants shall have the numberof spaces allotted
to each Tenantin their respective LeaseAgreements,the location of whichwill be specified in their
respective Lease Agreementsand/or, in the case of the Rodeo, the Existing RodeoLease, or
otherwiseagreedto by all Parties (negotiating in goodfaith).
Section 4.3 Rodeo and Landlord Parking On GameDays. On GameDays the Rodeo’s
Parking Spaces (other than "Tenant’s WarehouseParking Spaces" as defined in the RodeoLease)
23
i
shall be limited to two hundred(200) spaces total, as designated by the Rodeowithin the Rodeo’s
Parking Spaces, the provisions of the RodeoLease to the contrary notwithstanding; provided,
however,if such GameDayis a weekdaythat is not a Legal Holiday, such limitation shall not take
effect until 5:00 p.m. of such GameDay. The Landlordand the Rodeoshall have the right to use
any and all office space and meetingrooms(as opposedto exhibition space) in the Exhibition Hall
on any GameDaywithout the Team’sapproval, provided that parking for such use by (a) Landlord
is located only in the Landlord’sParking Spaces and (b) the Rodeois located only in the Rodeo’s
Parking Spaces as limited for such GameDayspursuant to this Section 4.3.
Section 4.4 Use of the Walkway.Exhibit "K" attached hereto depicts the approximate
location of a walkway(the "Walkway")providing an additional access route from certain parking
areas of the ComplexGroundsto and from the AstrodomainComplex.The Walkwayis located on
a portion of the Practice Facilities Land.TheTeamherebygrants an irrevocable license (so long as
the Principal Project Documents
remainin force and effect) to the Landlordand the Rodeofor use
of the Walkway
for such purposesby patrons attending an Event; provided, however:(i) in no event
shall the Teamhave any liability of any kind to Landlord, the Rodeo,or any patrons thereof in
connectionwith their use of the Walkway
unless caused by the negligent acts or omissionsor the
wilfull misconductof the Teamand (ii) the Teamreserves the fight to deny Landlord,the Rodeoand
their patrons access to the Walkway,at times deemedreasonable and necessary by the Teamin
connectionwith any Teamactivities occurringon, in or at the Practice Facilities.
ARTICLE 5
CONCESSIONS; AMBUSH MARKETING
Section 5.1 ConcessionRights. The Parties shall have the exclusive joint right and
responsibility, subject to the terms of Sections 5.2 and 5.3 belowand the rights of the Rodeowith
respect to consumable or non-consumable concessions and Pourage Rights held by the Rodeo
pursuant to the RodeoLeaseand the Existing RodeoLease, to license all ConcessionRights for, and
effect the Concession Operations within, the Stadium and ComplexGrounds. Landlord will not
allow any Person (other than the Rodeopursuant to its rights under the RodeoLease or Existing
Rodeo Lease during the Rodeo’s Tenant Events and Rodeo’s Tenant Non-Events) to, nor will
Landlord or any Tenant (other than the Rodeopursuant to its rights under the RodeoLease or
Existing RodeoLease during the Rodeo’sTenant Events and Rodeo’s Tenant Non-Events)license
or sell any consumable or non-consumableconcessions in the Stadium and ComplexGrounds,
except as providedherein or as maybe mutually agreed to by the Parties, provided, however,the
foregoing shall not prevent the Landlord from licensing or selling any consumableor nonconsumable concessions within other buildings located on the ComplexGrounds during any
Landlord Events so long as the operation thereof does not constitute AmbushMarketingor Party
Ambush
Marketingnor shall the foregoing prevent the Rodeopursuant to its rights under the Rodeo
Lease or Existing Rodeo Lease from licensing or selling any consumable or non-consumable
concessions on the ComplexGrounds during the Rodeo’s Tenant Events and Rodeo’s Tenant
Non-Events. The area within the ComplexGrounds and outside of the Stadium and the Highly
Restricted Area covered in this Section 5.1 with respect to ConcessionRights during times where
there occurs both TeamTenant Events (other than Football HomeGamesfor which no Landlord
24
approval shall be required) and LandlordEvents(to the extent permitted by the TeamLease) shall
be subject to the mutualapprovalof the Teamand the Landlord.TheParties shall havethe exclusive
joint right and responsibility to (i) solicit, select and contract with one or moreConcessionaireswho
shall operate and be responsible for all ConcessionOperations within the ConcessionRights Area
at all times during the Termof this Agreement;and (ii) negotiate and enter into agreementswith
Concessionaires with regard to the Concessions Rights and administer any such Concession
Agreements,and (iii) determine the location of all ConcessionFacilities within the Concession
Rights Area (other than temporaryand portable facilities whichmaybe located by the Party whois
holding the Event in accordancewith the terms of the applicable ConcessionAgreement).Noparty
maytake the lead in selecting any Concessionaireor negotiating any such ConcessionsAgreement
withoutfirst obtainingthe consentof all Parties. All Parties shall be actively involvedin selecting
any Concessionaireor in such process and negotiations on an ongoingbasis so that they maybe fully
informedof the current status and material details thereof. EachParty shall be entitled (i)
participate in the determination of the criteria for, and selection of, all Concessionairesand
(ii) attend, and participate in, all meetingsand negotiations with any prospective Concessionaire.
The Parties each reserve the right to (i) reasonably approve the final agreementgranting any
ConcessionRights to any Concessionaireand (ii) approvethe identity of all Concessionaires.The
Concessionairesselected by the Parties shall be used exclusively for the ConcessionOperationsin
the Concession Rights Area at all Tenant Events, Tenant Non-Eventsand Landlord Events. The
Parties shall complywith all provisions of any ConcessionAgreement
then approvedby the Parties,
including, but not limited to, anyexclusivities or priorities grantedto Concessionaire(s).TheParties
and the Concessionairesshall at all times complywith all Governmental
Rules and shall procure any
and all permits or licenses required by any Governmental
Authorityrelating to the ConcessionRights
and ConcessionOperations. At all times during the term of this Agreement,a representative of the
Concessionaireshall be madeavailable to the Parties as part of the ConcessionOperationsin order
to handle any problemswhichmayarise with regard thereto. TheLandlordshall honor all Branding
Rights, Pourage Rights, Service Rights and Exclusivity Rights in its operation of the Complex
Grounds.
Section 5.2 BrandingRights. Teamand Rodeoshall jointly retain on an exclusive basis
and Landlord hereby grants to the Teamand Rodeoon a joint and exclusive basis, all Branding
Rights to the Stadiumand Highly Restricted Area on a year round basis and to the Complex
Grounds
during TenantEvents; provided, however,that such BrandingRights (i) shall not be structured
Teamor Rodeoso as to negatively impactin any material respect the operating costs of the Stadium,
the Landlord’sability to meetits maintenanceand operating standards under the Principal Project
Documents
or the quality of services providedin the Stadium,(ii) shall be subject to the terms and
conditions Set forth in Section 6.9 and (iii) shall not include any BrandingRights granted to the
Rodeounder the RodeoLease or the Existing RodeoLease. The holder(s) of such BrandingRights
shall be permittedto displayits productand retail rights identification, includingwithoutlimitation,
its trademark,tradenameand logos associated therewith, in all areas of the Stadiumand the Complex
Groundswheresuch product(s) or retail right(s) is (are) sold, delivered or providedwithoutany
identification constituting Advertising; provided, however,nothing herein shall prevent the Team
and the Rodeofrom jointly entering into a combination Brandingand Advertising agreement. A
BrandingRights holder shall, at the joint election of the Teamand the Rodeobe permittedto identify
25
itself as the "offiCia! provider"at or to the Stadiumof the applicableproduct,or retail fight. Thearea
within the ComplexGroundsand outside of the Stadiumand the Highly Restricted Area covered in
this Section 5.2 with respect to BrandingRights during times wherethere occurs both TeamTenant
Events (other than Football HomeGamesfor which no Landlord approval shall be required) and
LandlordEvents(to the extent permitted by the TeamLease) shall be subject to the mutualapproval
of the Teamand the Landlord.
Section 5.3 PourageRights. Teamand Rodeoshall jointly retain on an exclusive basis,
and Landlordherebygrants to the Teamand Rodeoon a joint and exclusive basis, all PourageRights
to the Stadiumand the Highly Restricted Area on a year round basis and to the ComplexGrounds
during Tenant Events; provided, however,that such PourageRights (i) shall not be structured
Teamor Rodeoso as to negatively impactin any material respect the operating costs of the Stadium,
the Landlord’sability to meetits maintenanceand operating standards under the Principal Project
Documents
or the quality of services providedin the Stadium,(ii) shall be subject to the terms and
conditionsset forth in Section6.9 and (iii) shall not include any PourageRights grantedto the Rodeo
under the RodeoLease or the Existing RodeoLease. The holder of such Pourage Rights shall be
permitted to display its product identification, including without limitation, its trade name,
trademarks and logos associated therewith on, upon and within all ConcessionRights Areas where
such product is sold or dispensed, including without limitation, on namebrands, dispensing
equipment,drink containers, cups and beveragetrays, napkins and similar items utilized to dispense
such products withoutsuch display constituting Advertising; provided,however,nothingherein shall
prevent the Teamand the Rodeofrom jointly entering into a combinationPourageand Advertising
agreement. The PourageRights holders shall, at the joint election of the Teamand the Rodeobe
permittedto identify itself as the "official provider,’ to the Concession
RightsAreasof suchproducts.
The area within the ComplexGroundsand outside of the Stadiumand the Highly Restricted Area
covered in this Section 5.3 with respect to PourageRights during times where there occurs both
TeamTenant Events (other than Football HomeGamesfor which no Landlord approval shall be
required) and LandlordEvents(to the extent permitted by the TeamLease) shall be subject to
mutual approval of the Teamand the Landlord.
Section 5.4 Service Rights. The Teamand the Rodeoshall jointly retain on an exclusive
basis, and Landlordherebygrants to the Teamand Rodeoon a joint and exclusive basis, all Service
Rights to the Stadiumand the Highly Restricted Area on a year round basis and to the Complex
Groundsduring Tenant Events; provided, however, that such Service Rights (i) shall not
structured by Teamor Rodeoso as to negatively impactin any material respect the operating costs
of the Stadium, the Landlord’sability to meet its maintenanceand operating standards under the
Principal Project Documents
or the quality of services providedin the Stadium,(ii) shall be subject
to the terms and conditions set forth in Section 6.9 and (iii) shall not include any Service Rights
granted to the Rodeounder the RodeoLease or the Existing RodeoLease. The holder of such
ServiceRights shall be permittedto display its service identification, includingwithoutlimitation,
its trade name,trademarksand logos associated therewith, in all areas of the Stadiumwithoutsuch
display constituting Advertising; provided, however,nothing herein shall prevent the Teamand the
Rodeofrom jointly entering into a combinationService and Advertising agreement. The Service
Rights holders shall, at the joint election of the Teamand the Rodeobe permittedto identify itself
26
as the "official provider" to the Stadiumof such services. Thefights of the Tenantswith respect to
Service Rights are subject to such limitations as are containedin the AstrodomainJoint Marketing
Termsand Conditions.TheParties agree that with respect to the operational portion of any contract
with a service providerfor services included within ServiceRights, such services shall be segregated
into a separate contract to be entered into betweenLandlordand the service provider. Theforegoing
shall be limited to services necessary for Landlordto fulfill its obligations under the Lease
Agreements. The area within the ComplexGrounds and outside of the Stadium and the Highly
Restricted Area coveredin this Section 5.4 with respect to Service Rights during times wherethere
occurs both TeamTenant Events (other than Football HomeGamesfor which no Landlord approval
shall be required) and LandlordEvents(to the extent permitted by the TeamLease) shall be subject
to the mutual approval of the Teamand the Landlord.
Section 5.5 ConcessionRevenues.The Parties will be entitled to receive all Concession
Revenuesgenerated from the Concession Rights in the ConcessionRights Area, less applicable
Impositions, expenses, fees, and commissionspayable to the Concessionaires(the "Net Concession
Revenues")as follows: (i) Teamshall receive one hundredpercent (100%)of all Net Concession
Revenuesgenerated from its Tenant Events and Tenant Non-Events,provided that if the Teamsells
Consumable
Concessionsat any Incidental Event(other than Suite licensee’s use of their Suites and
Tenant’s use of the Business Center), then fifty percent (50%)of any Net ConcessionRevenues
derived by the Teamfrom the sale of Consumable
Concessions,after first deducting any event costs
incurred by the Team,including those costs paid to Landlord, in connectionwith conducting such
Incidental Event, shall be paid to Landlord; (ii) Rodeoshall receive such portion of the net
concession revenues generated from the sale of consumableor non-consumableconcessions during
the Rodeo’sTenantEvents and RodeoTenantNon-Eventsas it is entitled to receive pursuant to the
terms of the RodeoLeaseand Existing RodeoLease; (iii) Landlordshall receive one hundredpercent
(100%) of all Net Concession Revenues generated from its Landlord Events; and (iv)
ConcessionRevenuesderived from certain uses of the Suites shall be subject to the provisions of
Section 8 hereof. Anythingto the contrary notwithstanding, the Teamshall receive one hundred
percent (100%)of all Net ConcessionRevenuesgenerated from its Tenant Events, and the Team
Facilities. The Rodeoand the Teamshall share amongthemselves one hundred percent (100%)
the net concession revenues generated from the Joint Club/RodeoStore on such basis as the Team
and the Rodeoshall mutuallyagree. All revenuesderived from the Practice Facilities shall belong
to the Team.
Section 5.6 Special RodeoRights. The Parties acknowledgeand agree that with respect
to the Rodeo’s Tenant Events, all ConcessionAgreementsshall (i) exclude and give the Rodeo
control of and all revenue from all entertainer merchandiseand Rodeonamedand logo merchandise
sold at the Rodeo’sTenant Events, provided, however, that (x) the Rodeowill allow the Joint
Club/RodeoStore to sell such merchandiseon terms acceptable to Rodeoand the Teamand (y) the
Rodeoshall have the right to use and control of one-half of all merchandisenovelty booths and
stands (including kiosks and push carts) equally disbursed throughout the Stadium during the
Rodeo’sTenant Eventsfor purposesof selling such merchandise,and (ii) grant Rodeoand Landlord
the exclusive right to set the quality, menuand prices for food items sold at the RodeoClubs, the
Club(the ClubLevel excludingthe north and south portions of this level of the Stadium)and Suite
27
areas of the Stadi~umduring the Rodeo’sTenant Events. Anydisagreementbetweenthe Rodeoand
Landlordwith respect to the quality, menuand prices for such food items shall be resolved pursuant
to Article 15 below.
Section 5.7 Up-front Concession Payments. The Parties acknowledge and agree that
any up-front or one-time concession payments madeby any Concessionaire for the Concession
Rightswill be applied as follows: (i) first, to pay for the costs of concessionimprovements
in excess
of those contained in the StadiumProject ImprovementsBudget, and (ii) second, any remaining
amountsshall be applied as directed by the Teamand the Landlord jointly. Landlord and Team
agree that any costs for concessionimprovements,in excess of up-front paymentsof Concessionaire
and the Stadium Project ImprovementsBudget, shall be divided between Teamand Landlord in
equal amounts.
Section 5.8 AmbushMarketing: Party_ AmbushMarketing.
(a)
EachParty shall, to the extent within their reasonablecontrol, use their good
faith reasonable efforts to prohibit Ambush
Marketingduring the respective Events of the
other Parties.
(b) Landlord itself or through the ComplexManager,and each Tenant in its use
or occupancyof the AstrodomainComplex,ComplexGroundsor Practice Facilities, shall
not allow or cause to occur or participate in any Party Ambush
Marketing, on or from any
portion of the AstrodomainComplex,ComplexGroundsor the Practice Facilities;
(c)
To the extent that Landlordacquires any land within the boundarycurrently
created by U.S. Interstate 610, Fannin, OldSpanishTrail and Main(such area being referred
to herein as the "Restricted LandArea")(whetheror not any such land constitutes any portion
of the ComplexGrounds)such land shall be subject to the terms and restrictions of this
Section 5.8. In the event that the Landlordconstructs any improvementson any portion of
the Restricted LandArea(without limiting the requirementsof Section 7.2 if applicable)
signage, advertising or sponsorship (whethertemporaryor permanent)shall be permitted
the exterior of such improvementsor on the land on which such improvementsare located
and no nameshall be given thereto, in each case which conflicts with the NamingRights
granted, from time to time, by the Teamand the Rodeohereunder; and
(d) Noconsumableor non-consumableconcessions shall be sold from any of the
Astrodome, Exhibition Hall, Astroarena or any improvements permitted pursuant to
Section 7.2 at the sametime that a TenantEventis occurring at the Stadiumunless the sale
thereof relates to an Eventthen occurring(to the extent permittedunder the Principal Project
Documents)within such Astrodome, Exhibition Hall, Astroarena or any improvements
permitted pursuant to Section 7.2.
Section 5.9 Astrodomain
Rights. In addition to the Exclusivity Rights, NamingRights,
BrandingRights, PourageRights, Advertisingrights, ConcessionRights, Sponsorrights and Service
28
Rights granted to the Teamand the Rodeopursuant to this Agreement,the Landlordhas granted the
Teamand the Rodeo, jointly, the naming,signage, advertising, sponsorship, branding, pourage,
service and other rights to the AstrodomainComplexand the remaining portion of the Complex
Grounds described in and pursuant to the terms, provisions and conditions set forth in the
Astrodomain Joint Marketing Terms and Conditions (herein so called) attached hereto
Exhibit "L". The provisions of the AstrodomainJoint MarketingTermsand Conditionsshall control
over any conflicting provisions in this Agreement;provided, howeverin the event that any rights
granted thereunder are terminated or withdrawnin accordance with the terms thereof, no such
terminationor withdrawalshall affect or diminishany of the other rights or benefits grantedto either
the Rodeoor the Teamunder any of the Principal Project Documents.
Section5.10 Tenants’Affiliates. Eachof the Tenantsreserve the right to assign the rights
granted to themhereunder, including without limitation, all NamingRights, Advertising rights,
Signagerights, ConcessionRights, Sponsorrights, BrandingRights, Service Rights, PourageRights
and any other rights granted pursuant to the AstrodomainJoint MarketingTermsand Conditionsto
an entity whollyowned,directly or indirectly, by such Tenant(an "Owned
Affiliate"). Onbehalf
each such OwnedAffiliate, the Tenants reserve the right for such OwnedAffiliates (or if not so
assigned, for themselves)to forma joint ventureor other entity whollyowned,directly or indirectly,
by the Tenantsor their Owned
Affiliates (on terms mutuallyacceptable to the Tenants)to pursue and
enjoyall such rights. Anysuch assignmentto the Tenants’Owned
Affiliates or joint ventureor other
entity shall be subject to the terms of the Principal Project Documents
and shall not relieve the
Tenants from their liabilities and obligations hereunder. Anyreferences to the "Tenants" in
Article 16 hereof shall likewise apply to such Owned
Affiliates and any such joint venture or other
entity that they maycreate as permitted herein for the purpose of protecting the confidential,
proprietary and trade secret nature of the Private Contract Rights of such parties. In no event shall
the Tenantsassign any such rights to any Personwhois not an Owned
Affiliate of either Tenantor
that is not a joint ventureor other entity whollyowned,directly or indirectly, by the Tenantsor such
OwnedAffiliates.
ARTICLE 6
NAMING RIGHTS, ADVERTISING AND SIGNAGE
Section 6.1 Signage. TheParties agree that all Signagereferred to in this Agreement
will
either be inside the Stadiumor permanentlyaffixed to the exterior of the Stadiumor within the
HighlyRestricted Area (as determinedby the mutualagreementof the Tenants), with the exception
of (i) the Marquee,(ii) the Stadiumentrances and (iii) the directional signage to the Complex
Grounds and Stadium. Notwithstanding the foregoing, the Parties agree that no Signage or
Advertisingshall be located in or affixed to the Restricted Portions of the Roof.
(a)
NamingRights Signage. TheTeamand Rodeo,acting jointly, shall have the
exclusive right to sell the NamingRights License for the Stadiumand no other Party or
¯ Personshall grant such rights. In such connectionthe Teamshall take the lead in selecting
such NamingRights Licensee and negotiating the terms of the NamingRights Agreement
with the NamingRights Licensee; but shall actively include the Rodeoin such process,
29
selection and negotiations on an ongoingbasis so that the Rodeowill be fully informedof
the current status and material details thereof. TheRodeoshall be entitled to (i) approvethe
identity of the NamingRights Licensee and all of the terms and provisions of the Naming
Rights License and NamingRights Agreement
and (ii) attend and participate in all meetings
and negotiations with any prospective NamingRights Licensee. The purchaser of the
NamingRights will be afforded Signagerights in accordancewith the terms of the NFLClub
License Agreementand RodeoLicense Agreement, which in general, affords the Naming
Rights Licensee Signagerights whereverthe Stadiumbuilding’s namewouldnormallyappear
as determined by the mutual agreement of the Tenants; however, NamingRights Signage
shall be subject to the restrictions containedin Section 6.1 (e) of the FundingAgreement
and
the namegiven to the Stadiumshall be subject to the restrictions containedin the License
Agreements.The design, presentation and appearanceof any Fixed PermanentSignageshall
be consistent with the general design, presentation and appearance of the Stadium as
mutually approved by the Landlord, Team and Rodeo, Landlord not unreasonably
withholdingits approval, in order to protect the public imageof the Stadium.TheNaming
Rights package for Signage shall be mutually approved by the Teamand Rodeo. Naming
Rights standards shall be agreed to in advancebetweenthe Teamand the Rodeo.
(b) Virtual Signage and Advertising. The Parties acknowledgeand agree that the
benefits to be derived fromany Signageand Advertisingpermitted under this Agreement
will
not be diluted by any computeror other generated "virtual signage." The Tenants, however,
shall have the unrestricted right to grant "virtual signage" rights with respect to their
respective TenantEvents. Noother Person, including, without limitation, the Landlord,the
Complex
Manager,the Sports Authorityor the County,shall havethe right to grant "virtual
signage" rights (wherebySignageor Advertising not actually present in or at the Stadium
shall be inserted into and as part of any broadcastor transmission)with respect to any Tenant
Event occurring at the Stadiumnor grant to any party the right to employany (except where
required for a Special Event, excludingthe SuperBowl,as providedin Section 6.5(a) below,
provided, however,such exception shall not apply with respect to NamingRights Signage)
so-called "blocking" technology(wherebyany Signageor Advertising located in or at the
Stadiummaybe obscured, altered or replaced), to the extent that any such rights would
diminish or impair the rights, revenuesor benefits otherwise to be derived by the Tenants
hereunderother than as permitted under Section 6.5(c) with respect to Special Events.
(c)
Barter/Trade Agreements.In the event that any equipmentor service vendor,
contractor or concessionaireaccepts a barter or trade of Advertising,Signage,or any other
saleable service or right for the Stadiumfroma Party, for equipment,products or services
provided to or included in the Stadiumor for a contribution to any Stadiumcosts, the
Landlord,Teamand Rodeoshall be entitled to receive their share of revenues(as allocated
under this Article 6) from such Advertising, Signage, NamingRights and all other saleable
services or rights for the Stadium,fromthe Party that receivedor benefitted fromsuch barter
or trade, whetherthroughits designee or otherwise, based uponthe value of the equipment,
products, services or contribution bartered or traded. For the purposes hereof the term
"saleable service or right" shall not apply to rights granted to a Personwhichinvolves an
30
association with either the Teamor the Rodeoor the designation of any such Personwith any
type of official status with the Teamor the Rodeoand any economicbenefits derived
therefromshall not be subject to any other Party hereto sharing therein.
(d)
Other AstrodomainFacilities. The Landlordwill have the right to nameany
Other Buildings located at the Astrodomain Complex, including the grounds of the
AstrodomainComplex,and shall have the non-exclusiveright to utilize the Marquee(s)for
informational purposes only to identify the nameof such other facilities and to identify
upcomingscheduled events at the Stadiumand such Other Buildings. The Marquee(s)shall
at all times identify the nameof the Stadium.The Marquee(s)shall not, however,be used
by the Landlord or any other Person claiming under the Landlord for any Advertising
purposes (i.e., advertising space shall not be sold or bartered by the Landlordon such
Marquee(s)).TheParties will refer to, and require (to the extent within their control),
agents, contractors and licensees to refer to the Other Buildings and the Astrodomain
Complex
by the namesgiven to them(it) by the Landlord,to the extent such name(s)is (are)
in compliancewith the other terms hereof. Similarly, the Parties will refer to, and require
(to the extent within their control), their agents, contractors and licensees to refer to the
Stadiumby the namegiven to it pursuant to the NamingRights Agreementto the extent such
nameis in compliancewith the terms of the License Agreements.
Section 6.2 NamingRights Revenues/Allocations.
(a)
All net NamingRights revenuesshall be allocated as follows: (i) eighty-three
percent (83%)to the Team,(ii) twelve percent (12%)to the Rodeo,and (iii) five
(5%)to the Landlord.TheParties acknowledge
that each Tenantshall be entitled to receive
the NamingRights Revenuesallocable to it as and whenthey are paid. Prior to any such
allocation any Benefits Revenuesfrom NamingRights shall be allocated to the Party that
creates, generates or provides such Benefits Revenuesfrom NamingRights; provided,
however,that nothing herein shall permit any Party to grant (i) Suite or long term parking
rights to any Personas part of an AmenitiesPackagefor use during any other Party’s Events
withoutsuch Party’s prior approvalor (ii) an AmenitiesPackageduring an Eventof any Party
whichis inconsistent with such other Party’s rights under the Principal Project Documents.
A floor value for the NamingRights shall be mutually established and agreed uponby the
Teamand Rodeo before the marketing of the NamingRights commences.Any and all
additional elementsgenerating Benefits Revenuesmust be defined and assigned a specific
value by each Party and in the case of NamingRights in the NamingRights License or no
value maybe assigned to such elements.
(b) Landlord shall provide (or shall cause the ComplexManagerto provide)
a regular basis to the Tenantsa schedule for ticket and parking prices applicable to the
LandlordEvents, providedthat such schedule of ticket and parking prices shall allow the
collective marketingby the Tenantsof the NamingRights and/or Suites, Club Seats or other
AmenitiesPackagesin connection with the Landlord Events, and such ticket and parking
prices shall not exceedthe reasonableand customaryprices chargedto the general public for
31
such Events. TheTeamshall receive anybonusrevenuesthat maybe attributed to the Team’s
Tenant Events, the Super Bowlor any post-season NFLFootball Games.The Rodeoshall
receive any bonusrevenues that maybe attributed to the Rodeo’sTenant Events that are
specifically identified in the NamingRights Agreement.The Landlord, Teamand Rodeo
shall evenly share (on a one-third basis each) any other bonuses that are specifically
identified in the NamingRights Agreementthat are unrelated to the Teamand the Rodeo,
such as the Special Events. TheNamingRights Licenseewill be afforded Exclusivity Rights
within the Stadiumas mutuallyagreed uponby the Tenants, but such Exclusivity Rights will
not extend to the rest of the AstrodomainComplexduring any Rodeo Tenant Event or
LandlordEvent unless a separate, mutually agreed uponfee to the Rodeoor the Landlord,
respectively, is negotiated with an assigned specific value. TheLandlord, Countyand the
ComplexManagershall be prohibited from selling NamingRights or allowing any other
Personto sell any NamingRights, including, without limitation, any of the NamingRights,
to any Other Building, the ComplexGrounds, or the grounds of the AstrodomainComplex,
to a Sponsor in the sameproduct category as the NamingRights Licensee.
(c)
The Exclusivity Rights granted within the Stadiumwill in no event preclude
either Tenantor Landlordfrom acknowledgingits "Official Sponsorsor Presenters" on the
Scoreboardsor video boards during its respective Events. Theseacknowledgments
will not,
however, include Fixed Permanent Signage nor Fixed Rotational Signage and such
announcements
will not take the form of advertisementsor commercialsbut will be mentions
only.
Section 6.3 FixedRotational Signage/Allocations.Subject to the terms of Section 6.10,
the Landlordshall receive (a) the lesser of(i) five percent (5%)of all revenuesreceivedby the
fromFixed Rotational Signageduring its Six-Month
Period or (ii) one hundredfifty thousanddollars
($150,000.00) on an annual basis each year following the first public Event held at the Stadium
during the Team’sSix-MonthPeriod, adjusted as provided in Section 6.10, and (b) the lesser
(i) five percent (5%)of all revenuesreceived by the Rodeofrom Fixed Rotational Signageduring
its Six-Month
Period or (ii) one hundredand fifty thousandDollars ($150,000.00)on an annual basis
each year followingthe first public Eventheld at the Stadium,during the Rodeo’sSix-Month
Period,
adjusted as providedin Section 6.10. TheTenants will sell their ownFixed Rotational Signageto
rotational advertisers on a non-exclusivebasis for their respective Six MonthPeriod and keepall
revenuestherefrom other than those allocated to the Landlordas set out above. Noother Person,
including the Landlordshall sell any Fixed Rotational Signage. TheLandlord, Teamand Rodeowill
cooperatewith each other in an attempt to maximizetheir revenuesthrough the sale of Exclusivity
Rights and Amenities Packages, but the Tenants shall nonetheless be free to sell their own
sponsorships incorporating the Fixed Rotational Signage element as they maydeemappropriate
during their respective Six MonthPeriods. Each Tenant shall pay the production costs, artwork
installation costs, expenses, fees, and all other costs related to its use of the Fixed Rotational
Signageduring their respective Six MonthPeriods. Prior to any of the foregoing allocations, any
Benefits Revenuesfrom Fixed Rotational Signage shall be allocated to the Party that creates,
generates or provides such Benefits Revenues,provided, however,nothing herein shall permit any
Party to grant (i) Suite or long term parkingrights to any Personas part of an AmenitiesPackagefor
32
use during any other Party’s Eventswithoutsuch Party’s prior approval, or (ii) an AmenitiesPackage
during an Event of another Party which is inconsistent with such other Party’s rights under the
Principal Project Documents.
Section 6.4 Fixed PermanentSignage/Allocations. All FixedPermanent Signage
revenuesshall be allocated as follows: (a) forty-seven and one half percent (47.5%)to the Team,
(b) forty-seven and one half percent (47.5%) to the Rodeo and (c) subject to the terms
Section 6.10, five percent (5%)to the Landlord. Oncethe revenue from the Landlord’s allocable
portion from Fixed Permanent Signage and Fixed Rotational Signage revenues exceeds the
predeterminedoverall cap set forth in Section 6.10, the revenuesfrom Fixed PermanentSignagewill
be allocated fifty percent (50%)to the Teamand fifty (50%)to the Rodeo. Prior to any of
foregoing allocations, any Benefits Revenuesfrom Fixed PermanentSignageshall be allocated to
the Party that creates, generates or provides such Benefits Revenues,provided, however,nothing
herein shall permit any Party to grant (i) Suite or long term parkingrights to any Personas part
an AmenitiesPackagefor use during any other Party’s Eventswithout such Party’s prior approval,
or (ii) an AmenitiesPackageduring an Eventof another Party whichis inconsistent with such other
Party’s rights under the Principal Project Documents.Afloor must be by mutuallyagreed uponand
established by each Tenantfor each sign, Advertising or product right, with or without Amenities
Packages,contemplatedto be sold as part of a Fixed PermanentSignagepackagebefore that right
can be marketed. Anyand all additional elements generating Benefits Revenuesfrom Fixed
PermanentSignagemust be defined and assigned a specific value by the Tenantsprior, to inclusion
in any Fixed Permanent Signage package or no value maybe assigned to the element; provided
however, that the Landlord shall provide (or shall cause the ComplexManagerto provide) on
regular basis to the Tenants a schedule for ticket and parking prices applicable to the Landlord
Events, and providedfurther that such scheduleof ticket and parkingprices shall allow the Tenants
to market their respective Fixed PermanentSignagein connection therewith, and such ticket and
parking prices shall not exceed the reasonable and customaryprices charged to the general public
for such Events. The Teamshall receive any bonusrevenues that maybe attributed to the Team’s
Tenant Events, the Super Bowland any post-season NFLFootball Games.The Rodeoshall receive
any bonus revenues that maybe attributed to any of the Rodeo’sfuture Tenant Events that are
specifically outlined in a Fixed Permanent Signage contract (the "Fixed Permanent Signage
Agreement"). The Parties shall evenly share (on a one-third basis each) any other bonuses
specifically outlined in any Fixed PermanentSignageAgreementthat are unrelated to the Parties,
such as the Special Events. The Teamand the Rodeoshall jointly market all Fixed Permanent
Signageon mutually acceptable terms.
Section 6.5 Stadium Users’ Signage.
(a)
TemporarySignage and TemporaryAdvertising will be sold by the Tenants
and the StadiumUsers (which rights maybe granted to the StadiumUsers by the Landlord
or the Complex
Manager)for their respective Event(s), and each such party (i.e., the Tenants
and the StadiumUsers) will keep one hundred percent (100%)of the revenues derived
generated from such Events. AnyExclusivity Rights sold by the Tenants will be honoredby
the Landlord, the ComplexManager(which the Landlordshall obligate to honor the same)
33
and all StadiumUsers, as detailed below. Videocommercialssold by the Tenants for their
respective Six MonthPeriods will be exhibited at all Events during such Six MonthPeriod,
unless traditionally and historically bannedat such Events(e.g., no alcohol advertising may
be allowed at religious or NCAA
events). Similarly, Fixed Rotational Signagesold for
particular Six MonthPeriod will be exhibited at all Events held during such Six Month
Period (or annually, as the case maybe), unless traditionally and historically bannedat such
Events (e.g., no alcohol advertising maybe allowedat religious or NCAA
events). For the
purposeshereof, sponsorshipsthat are an integral part of the nameof an Event, such as by
wayof examplebut not in limitation, BudweiserSuperfest shall not be deemedSignageor
Advertisingfor purposesof this Agreementto the extent such nameis uniformlyapplied to
and used in connectionwith such Event in other venues.
(b) The Landlord will honor and will cause the Complex Manager and all
StadiumUsers to honor, all Advertisingand SignageExclusivity Rights granted by the Team
and/or Rodeo;provided, however, that the StadiumUsers utilizing the Stadiummay,from
time to time, be permitted to sell TemporaryAdvertising and TemporarySignageat their
ownEvents, subject to the following conditions:
(i)
NoTemporaryAdvertising or TemporarySignage maybe affixed
any part of the Stadiumor on any existing Signageor Advertisingstructures within
or around the Stadium, except that Stadium Users will be permitted to place
TemporaryAdvertising, in the case of sports team StadiumUsers (such as a Major
League Soccer Team)on the playing turf and the goal posts or, in the case of
non-sport team StadiumUsers, on the stage or in the performancearea, as well as
TemporarySignageadvertising certain products and/or services, so long as the same
are not in violation of any existing ExclusivityRights previouslygrantedby the Team
and/or Rodeo.
(ii) The permitted Temporary Advertising and Temporary Signage for
Stadium Users will be permitted in the Stadiumonly during such StadiumUser’s
Events and not during any other times.
(iii) In no event shall the Stadium Users have the right to grant any
Exclusivity Rights to advertisers or Sponsorswhichwouldin any way(x) affect the
ability of the Teamand/or Rodeoto advertise at the Stadiumor (y) affect the ability
of the Teamand/or the Rodeoto participate in sponsorshipsor promotionsinside or
outside of the Stadiumwith any Persons as the Teamand/or Rodeoshall determine
in their ownabsolute discretion.
(c)
Except for the NamingRights Signage, the foregoing restrictions on the
permitted TemporarySignage and TemporaryAdvertising which the Stadium Users may
exploit shall not apply in the event that the Stadiumis used for a Special Event, it being
recognized and acknowledgedby the Parties that the Stadiummayhave to conformto the
requirementsof such Special Events with respect to certain Signageand Advertisingin the
34
Stadiumduring the Special Events(e.g., the NCAA
prohibits alcoholic beveragesigns in the
seating area), including, potentially, the requirement that someof the Fixed Permanent
Signage and Fixed Rotational Signage (but not NamingRights Signage) within the seating
area of the Stadiummaybe required to be covered, drapedor otherwise blacked out during
such Special Events.
Section 6.6 Signage Elements. All physical elements of Fixed Permanent Signage and
Fixed Rotational Signage(including location) mustbe approvedby the Parties, but the Landlordwill
not unreasonablywithhold,condition or delay its approvalof the sameand in exercising its approval
rights, the Landlordwill not diminishthe revenuegeneratingpotential to Tenantsfrom Signageand
will not disapproveSignageconsistent with Signagein other ComparableFacilities.
Section 6.7 Fulfillment Costs.
(a)
The Parties acknowledgeand agree that as muchof the Fixed Permanent
Signage and Fixed Rotational Signageproduction costs and expenses as possible will be
incorporatedinto the Project Budget.
(b)
The Parties agree that whenFulfillment Costs must be incurred on Fixed
Permanent Signage and Fixed Rotational Signage, or NamingRights Signage, such
Fulfillment Costs will be subtracted from the total price of the packagesto reimbursethe
Party that incurred the samewith the remainderbeing the amountsubject to being split
betweenthe Parties as providedherein.
Section 6.8 Signage Rate Card. Prior to marketing any Signage, the Tenants shall
mutually agree upona rate card for such Signage. Whenthe Tenants producethe rate card for the
Signage,they will maketheir best efforts to outline a benefits packagelikely to be required to sell
each Signagepackageso that net proceeds from Signageand related benefits maybe projected by
eachof themprior to the actual sales effort. All shared categories will havea floor mutuallyagreed
upon by the Teamand Rodeofor each sign or marketedproduct below whichthe gross sales price
of shared elementsto be divided amongthe Parties maynot fall.
Section 6.9 Exclusivity Rights. All elementsof product and service provider rights (e.g.
soft drink pourage, financial service/ATMservices, "official candyprovider," etc.) as well as
Exclusivity Rights, BrandingRights, Service Rights and PourageRights and the allocation of the
benefits and incometherefrom amongthe Tenants shall be determinedand mutually agreed upon by
the TenantsOna case-by-casebasis and relate exclusively to the interior of the Stadiumand within
the Highly Restricted Area, as determined by mutual agreementof the Tenants, unless a to-be
negotiated premiumwith an assigned specific value for the area outside of the Highly Restricted
Area is paid to (i) the Rodeoto compensatethe Rodeofor the loss of potential non-exclusive
advertisers included on those areas of the AstrodomainComplexoutside of the Highly Restricted
Area for which Rodeohas use or occupancyrights during its respective Tenant Event Days, or
(ii) the Landlordto compensatethe Landlordfor the loss of potential non-exclusiveadvertisers
included on the rest of the AstrodomainComplexfor the LandlordEvents. The Tenants agree that
35
they will not structure such Exclusivity Rights, and product and service provider rights so as to
negatively impactin any material respect the operating costs of, or the quality of service provided
at the Stadium. Neither Landlord, the County, the ComplexManager,Team,nor Rodeoshall take
any action, nor allow any other Personwithin its control to take any action, whichwouldinterfere
or conflict with any Exclusivity Rights. Any"official category or product" rights that are included
in any ExclusivityRights shall applyonly to the interior of the Stadiumbuilding or withinthe Highly
Restricted Area, as determinedby mutual agreementof the Tenants, and not to the Teamor Rodeo.
The Exclusivity Rights shall not include any, and the Teamand the Rodeoshall each separately
retain for their ownbenefit, use and sale, all rights to "organizational"exclusivity of the Teamand
the Rodeo(i.e., the "Official Truckof the HoustonLivestock Showand Rodeo").
Section 6.10 Allocations~ Caps.In return for receiving the allocable portion (capped as
provided in Sections 6.3 and 6.4 above) of revenues from Fixed Permanent Signage and Fixed
Rotational Signage,the Landlordagrees to, and if applicable, the Landlordshall cause the Complex
Managerto agree to:
(a)
For purposes of calculating the Landlord’s share of revenues from Fixed
Permanent Signage and Fixed Rotational Signage, any up-front or one-time payments
relating to the sameshall be treated as if paid in equal annualamountsover the life of the
contract to whichsuch rights apply. Landlordshall not be entitled to receive any revenues
from Fixed PermanentSignageand Fixed Rotational Signage in excess of an annual cap of
$300,000.00;providedthat (i) whenthe revenuefrom the Landlord’sshare of revenuesfrom
Fixed PermanentSignage exceeds such cap, such excess shall be allocated fifty percent
(50%)to Teamand fifty percent (50%)to Rodeo, and (ii) whenthe Landlord’s share
revenues from Fixed Rotational Signage exceeds the respective maximum
amountsallowed
under Section 6.3 abovethat are allocable to Landlord,then such excess shall be allocable
to either the Teamor Rodeo,as the case maybe in accordancewith Section 6.3 hereof. The
$300,000.00cap shall be adjusted annually (on the anniversaryof the first public Eventdate
of the Stadium)by the lesser of (a) three percent (3%)per annum,cumulative, or (b)
product that results from multiplying the CPIFraction by $300,000.00.The$150,000.00cap
referred to in Section 6.3 aboveshall likewise be increased annually by makinga similar
calculation; and
(b) Honor Exclusivity Rights and NamingRights sold by both the Teamand
Rodeoin accordancewith the terms of this Agreementand product category protection for
the NamingRights Licensee as well in the AstrodomainComplex(e.g., if the Stadiumis
named"Continental Airlines Stadium,"then Landlordshall not namethe Exhibition Hall [or
any other facility on the Astrodomain
Complex],the "SouthwestAirlines Exhibit Hall"); and
(c)
Exhibit all NamingRights, Fixed Permanent Signage, Fixed Rotational
Signage, TemporaryAdvertising and TemporarySignage (for the Events to which such
Temporary
Advertisingand Temporary
Signagerelates) at all Eventsunless traditionally and
historically bannedat such Events, (i.e. no alcohol advertising is permittedat religious or
NCAAevents); and
36
(d) Permit the sale of Temporary Signage and Temporary Advertising at the
LandlordEvents so long as the samedoes not conflict with the Exclusivity Rights; and
(e)
Provide the existing and any newMarqueesto the Teamand Rodeofor Fixed
PermanentSignage(and permitting informational notices and the nameof other facilities at
the AstrodomainComplexby Landlord, as provided above); and
(f)
Not permit, directly or indirectly, any AmbushMarketing or in any way
devalue any Exclusivity Rights, the NamingRights, Permanent Fixed Signage, Fixed
Rotational Signage, Temporary Advertising Signage or TemporarySignage rights or
revenues, Sponsorship,promotion,mediaor association rights or revenuesheld by the Team
and Rodeo; and
(g) Refer to and require all Stadium Users and others having business in
contracts concerningthe Stadiumto refer to the Stadiumby the namegranted in the Naming
Rights Agreement.
ARTICLE 7
FUTURE DEVELOPMENT
-Section 7.1 Non-Programmed
Space. NoParty shall be entitled to develop, or alter,
demolishor construct any improvementsin, nor lease, license or otherwise transfer or allow any
other Party or other Personto use, any of the Non-Programmed
Space, without the prior consent of
all Parties. Nouse of any of the Non-Programmed
Spaceshall conflict with or violate the rights of
any Party under any of the Principal Project Documents,including, without limitation, Naming
Rights, Exclusivity Rights, BrandingRights, PourageRights, Service Rights, Signage, Concession
Rights, retail marketing,merchandising,and sponsorship rights.
TheParties shall be entitled to share in the expensesand profits of each proposeduse of
Non-Programmed
Spaceon a per capita basis. TheParties shall be entitled to participate in the
venture created for the developmentand leasing of the Non-Programmed
Spaceon up to a per capita
equal basis or with suchlesser interest as they mayindividually elect. In the event a Party elects to
participate on less than an equal basis with the other Parties, then the other Parties mayshare the
remaininginterests in such venture as they mayagree to amongthemselves. All expensesof a Party
contributed to the development,operation, management,leasing or licensing of Non-Programmed
Space for a particular use shall be considered a capital contribution of such Party including
incrementalincreases in operating costs of the Landlord(to the extent not recoupedby Landlordas
part of the pass-through operating costs paid by any user or licensee of such Space) as a result
thereof. Ifa Party is a sole user of the Non-Programmed
Space, then the venture betweenall of the
Parties shall chargea fair marketrental rate for such SpacefromsuchParty, as such rate is mutually
agreed to by all the Parties, but taking into account the length of term, size, location and type of
space, improvements,
and the amenitiesand services to be providedthereto, to the extent not already
providedunder the provisions of the Principal Project Documents.Distributions to the Parties of
profits derived from a particular use of Non-Programmed
Spaceshall be madefirst pro rata to the
37
Parties whomadecapital contributions, together with a preferred return to each of such Parties equal
to a per annuminterest on the capital contributions at a rate to be agreed uponby the Parties, from
the time of each expenditurecreating a capital contribution to the time of the distribution returning
such capital contribution, and second, to the Parties on a per capita basis.
Section 7.2 AstrodomainComplex.Notwithstanding anything to the contrary contained
in the Principal Project Documents
(other than the RodeoLease and the Existing RodeoLease), the
Landlordshall be entitled to lease and/or developall areas of the Astrodomain
Complex
that are not
part of or within the Stadium,the HighlyRestricted Area, the TeamFacilities, the RodeoFacilities
or the Practice Facilities providedthat:
(a)
Anysuch lease or developmentshall be subject to the Rodeo’srights under
the RodeoLease and the Existing RodeoLease;
(b) To the extent any such lease or development would reduce the number
parking spaces in the ComplexGroundsbelowthose required to be providedto each Tenant
in its respective Lease Agreement,the Landlord shall replace such parking spaces with
parkingspaces located not materially moredistant or less convenientto the Stadiumthan the
parking spaces so eliminated;
(c)
Suchlease or developmentshall not materially alter ingress or.egress to the
Stadiumor to the parking areas of the ComplexGrounds;
(d)
Such lease or developmentshall not conflict with, violate or otherwise
infringe on any NamingRights, Exclusivity Rights, Branding Rights, Service Rights,
Signage, Advertising, ConcessionRights granted to or by either Tenant, and in connection
therewith Landlord shall ensure against AmbushMarketing and Party AmbushMarketing
or the breach of any NamingRights, Pourage Rights, Signage, Advertising, Concession
Rights, Exclusivity Rights, Service Rights and/or BrandingRights granted by either Tenant
to any Person pursuant to the Principal Project Documents;
(e)
Such lease or developmentand the uses thereof shall not materially
adverselyaffect the aesthetics or exterior appearanceof the Stadiumor the visibility of the
Stadium from Kirby Drive or Loop 610 South;
(f)
Suchlease or development
and the uses thereof shall be consistent with a first
class multi-purpose sports and entertainment complex;and
(g) To the extent any such lease or developmentwouldreduce the area available
to the Rodeo within the AstrodomainComplex(other than the Landlord’s Land and the
RodeoLand), the Rodeoshall have the right to use an equivalent area in the Additional
Parking Land, Landlord’sLandor the RodeoLandfor any Permitted Use (as defined in the
RodeoLease) during the RodeoTenantEvents, the location of such portion of the Additional
38
Parking Eand, Landlord’sLandor the RodeoLandso available to the Rodeoto be reasonably
acceptable to the Rodeo.
Section 7.3 Requestsfor Proposals. In the event that either the Landlordor any Person
on its behalf or the County,including the Complex
Managerelects to issue a request for proposals
or other similar solicitation for the lease or developmentof any portion of the Astrodomain
Complex
or otherwisereceives a bonafide inquiry from any Personwith respect to the lease or development
of any portion of the AstrodomainComplex,Landlordshall promptlydisclose all details thereof(as
such details then exist) to the Tenants pursuant to the provisions of Section 2.2 as an Issue for
consideration under and in compliancewith the terms thereof.
Section 7.4 Highly Restricted Area. The Landlordshall not be entitled to develop, sell,
lease, or otherwise transfer, or develop, demolishor construct improvements
on, any of the Highly
Restricted Area, without the prior written consentof the Tenants.
Section 7.5 Video Production Facilities. The Parties contemplate that the Exhibition
Hall includes the development,build-out and equippingof video productionfacilities by the Rodeo
for the Rodeo’suse and control. The use of such video production facilities by the Teamand the
Landlordis subject to the Parties reachingan agreementacceptableto the Rodeowith respect to their
participation in the development,build-out and equippingand the respective use thereof. TheParties
agree to use commerciallyreasonable efforts to reach such an agreement.Thefailure of the Parties
to reach suchan agreementshall not affect the rights of the Rodeoto use and control suchfacilities.
Section 7.6 Tour Theater. The Stadiumincludes a tour theater. The Parties shall each
havethe right to the use of the tour theater. Theuse thereof shall be subject to the Parties reaching
an agreementmutuallyacceptableto each of the Parties with respect to the sharing of revenuesand
operationalcosts related thereto.
ARTICLE 8
SUITE AND CLUB LEVEL USAGE
Section 8.1 TenantEvents. The Teamand the Rodeoshall have the exclusive right to
jointly marketand license forty-seven (47) Suites, or such greater or lesser numberas the Teamand
Rodeomayotherwise agree, from time to time (the "Joint Suites"), whichwill allow Joint Suite
licensees to purchaseadmissiontickets to all of the TenantEventsof the Teamand the Rodeo.All
Suites that are not Joint Suites shall be separately and exclusively marketedand licensed by the
Teamand the Rodeofor their respective Tenant Events. The Suites shall be available to Suite
licensees at all times during the Lease Termpursuant to the terms of the applicable Suite license
agreementsfor the viewing of such Tenant Events.
Section 8.2 Landlord Events. Whena Landlord Event is scheduled to occur, the right
to purchaseadmissiontickets thereto for use with any Suite shall be determinedas follows: (a) first,
the Teamand the Rodeoshall have the right to allow their Joint Suite licensees to purchasesuch
admissiontickets; (b) second, if such admissiontickets are not purchasedpursuant to Section8.2(a)
39
aboveor if any such Suite is not a Joint Suite, then the Teamshall havethe right to purchasefor its
Suite licensee, or allowits Suite licensee to purchase,suchadmissiontickets; and (c) third, if such
admissiontickets are not purchasedpursuant to Section 8.2(b) above, then the Rodeoshall have the
right to purchasefor its Suite licensee, or allowits Suite licensee to purchase,suchadmissiontickets.
Notwithstanding
the foregoingto the contrary, in the case of a Special Event, the Landlordshall have
the right to makethe Suites available to sponsors,promoters,advertisers and other parties associated
with such Special Eventfree and clear of the rights of Tenantsand their respective suiteholders;
provided, however,that the terms of Exhibit "M"are fully satisfied and prior to offering admission
tickets for suchSuites to the general public for such SpecialEvent(as distinguishedfromadvertisers,
promoters, sponsors and other parties related to such Special Event), Landlord shall cause the
promoterof such Special Eventto use its goodfaith reasonableefforts to offer admissiontickets for
such Suites pursuant to the provisions set forth in this Section 8.2 above. The cost of admission
tickets to a Suite for LandlordEvents(other than Special Events)shall be the averageprice of all
permanentmanifested, lower bowl seat admissiontickets in the Stadiumfor such LandlordEvent
and for such Special Eventsoffered to a current Suite licensee shall be the ticket price offeredto the
general public by the promotersthereof for Suite tickets. Notwithstandingthe foregoing to the
contrary, whena SuperBowlis scheduledto occur, Landlordshall havethe exclusive right to license
andsell admissiontickets to the Suites, providedthat the conditionsset forth in Exhibit "M"are fully
satisfied, and providedfurther that such right of Landlordin the case of the SuperBowlis subject
to the Team’srights to use at least one-halfof all Suites at no cost (other than the cost of tickets to
such Suites, as required by the NFL)and the needs of the NFLto use space in Suites and rearrange
Suite usage.
Section 8.3 DarkSuites. Except as provided in Section 8.2, if admission tickets to a
Suite for a TenantEventor LandlordEventare not purchasedas set forth in Section 8.1 or 8.2, the
Suite in question shall be unoccupiedand remain "dark" for the TenantEvent or LandlordEventin
question.
Section 8.4 MajorConventions.Anything in Section 8.2 above to the contrary, in the
case of a MajorConvention,(a) any licensee of a Suite from the Teamand/or the Rodeowhois
registered attendee of the MajorConvention
shall be entitled to use such Suite at no cost other than
for Concessions,
and (b) Landlordshall license the Suites in the followingorder: (i) first, Suites
havenot been licensed by a Tenant, (ii) second, Suites that are not Joint Suites (and Landlordwill
use goodfaith efforts to equally use Suites licensed by the Teamand Rodeoand avoid overuse of
certain Suites relative to other Suites), and (iii) third, Joint Suites.
Section 8.5 MajorLeagueSoccer. In the event a major league soccer franchise that is
not ownedby the Teamor an Affiliate of the Teamuses the Stadiumfor its games,and the Halo
Suites and SkyBoxSuites have been constructed, the Landlordshall have the exclusive right to
license to the public or to such major league soccer franchise the Halo Suites and Sky BoxSuites
for the viewingof such games.The provisions hereof are subject to the terms of Section 18.22
hereof.
4O
Section 8;6 Suite Revenues.All Suite revenues from any Tenant Event shall be received
by the Tenant holding such Tenant Event. Landlord shall receive all Suite revenues derived from
LandlordEvents. Ifa Suite is to be occupiedduring any Event, all admissiontickets for such Suite
must be purchased.
Section 8.7 Non-Event Suite and Stadium Club Access.
(a)
Joint Suite LicenseeUse. Onreasonable prior notice to Landlordand subject
to the provisions of the Lease Agreementsand Landlord’s Bookingprocedures, upon the
prior approvalof either Tenant, the licensee of a Joint Suite mayuse the Joint Suite and/or
the Club Level on a year-round basis, at any time during normal operating hours of the
Stadium for a conference, meeting or other business purposes (subject to applicable
GovernmentalRules) so long as (x) no Event is being held anytimeduring (or immediately
prior to or immediately
following)that sametime, (y) with regardto the use of the Joint Suite
(in question) the paymentto Landlordof operating expensescausedby such use and (z)
regard to the use of the Club Level, the paymentto Landlord of a reasonable fee, plus
operating expensescausedby such use. Alongwith access to its Suite and/or the ClubLevel
pursuant to this Section, the Joint Suite licensee shall have reasonablyfree access to such
other areas of the Stadiumas is necessaryto gain such access to its Suite or the ClubLevel;
however,suchaccess fights shall not interfere with Landlord’sor any Stadiumtenant’s rights.
(b) Other Suite Licensee Use. Onreasonable prior notice to Landlordand subject
to the provisions of the Lease Agreementsand Landlord’sBookingprocedures, ifa licensee
of a Suite that is not a Joint Suite desires to use the Suite and/or the Club Level during
normaloperating hours of the Stadiumfor a conference, meetingor other business purposes
(subject to applicable GovernmentalRules) at a time whenno Event is being held (or
scheduled to occur immediately prior to or immediatelyfollowing), such licensee must
obtain the prior approvalof the Tenantfromwhichsuch licensee acquiredits license of such
Suite and (x) with regard to the use of the Suite in question, pay to Landlordthe operating
expenses caused by such use and (y) with regard to the use of the Club Level, payment
Landlorda reasonable fee, plus operating expensescausedby such use. Notwithstandingthe
foregoing, a licensee of a Suite that is not a Joint Suite shall not havethe right to use the
Suite and/or Club Level on a Tenant Event Dayof the Tenant from whichsuch licensee did
not acquire its license of such Suite. Alongwith access to its Suite and/or the Club Level
pursuant to this Section, the Suite licensee shall have reasonablyfree access to such other
areas of the Stadiumas is necessary to gain such access to its Suite or the Club Level;
however,suchaccess rights shall not interfere with Landlord’sor any Stadiumtenant’s rights.
(c)
Sponsor Use. On reasonable prior notice to Landlord and subject to the
provisions of the Lease Agreementsand Landlord’s Bookingprocedures, if a sponsor of a
Tenant or the Stadiumdesires to use the Club Level during normaloperating hours of the
Stadium for a conference, meeting or other business purposes (subject to applicable
Governmental Rules) at a time when no Event is being held (or scheduled to occur
immediatelyprior to or immediatelyfollowing), such sponsor mustobtain the prior approval
41
of the Tenantwith whichsuch sponsoris affiliated and pay to Landlorda reasonablefee, plus
operating expensescaused by such use. Alongwith access to the ClubLevel pursuant to this
Section, the sponsorshall have reasonablyfree access to such other areas of the Stadiumas
is necessary to gain such access to the Club Level; however,such access rights shall not
interfere with Landlord’sor any Stadiumtenant’s rights.
(d)
Revenues. Net Concession Revenues from Consumable Concessions
generated from a Suite Licensee’s use of a Suite during TeamTenant Non-Eventsshall
belong one hundred percent (100%) to the Team. Net Concession Revenues from
Consumable
Concessionsgenerated from a Suite Licensee’s or a sponsor’s use of the Club
Level during a TeamTenant Non-Eventshall be shared equally between the Teamand the
Landlord. During Rodeo Tenant Non-Events, Net Concession Revenues from Consumable
Concessionsgeneratedfroma Suite Licensee’suse of a Suite or a Suite Licensee’sor Stadium
sponsor’s use of the Club Level shall be allocated as providedin the RodeoLease and the
Existing RodeoLease.
Section 8.8 HaloSuites and SkyBoxSuites. In the event the Halo Suites and/or the Sky
BoxSuites are constructed, they will be licensed by the Tenantsand Landlordin the samemanner
as providedin Sections 8.1 and 8.2 for private Suites that are not Joint Suites, unless the Tenants
agree otherwise; provided, however,that in any event, in consideration of Landlord’sgrant to the
Teamof the right of first refusal in connection with the lease or license of the Stadiumfor
professional soccer as providedin Section 18.22 hereof Landlordshall have the right to license the
Halo Suites and Sky Box Suites for the homegamesof any such soccer franchise; provided,
however,that the terms of Exhibit "M"are fully satisfied and prior to offering admissiontickets for
such Halo Suites and SkyBoxSuites to the general public for such soccer event the franchise owner
thereof shall use its goodfaith reasonableefforts to offer admissiontickets to the HaloSuites and
SkyBoxSuites to current Suite holders. In this regard, the cost of admissiontickets to a HaloSuites
and SkyBoxSuite shall be the ticket price or Suite price (as the case maybe) offered to the general
public by such franchise holder for Halo Suites and SkyBoxSuite tickets.
Section 8.9 Landlord’sSuite. Landlord shall be permitted to utilize one (1) Suite (the
location of whichis depicted on Exhibit "N" ("Landlord’s Suite")) for all Events(other than
Super Bowl)at the Stadium.
ARTICLE 9
CHANGES~ ALTERATIONS AND ADDITIONAL IMPROVEMENTS
Section 9.1 Tenants. Subject to the limitations and requirements contained in this
Section 9.1, either Tenant shall have the right at any time and from time to time to (i) request
Landlordto makechangesor alterations to the LeasedPremisesso that the LeasedPremises, taken
as a whole, and each componentthereof, respectively taken as a whole, is not only in First Class
Condition, but contains and exhibits those improvements,equipmentand standards whichare likely
to engenderinterest and increase use amongprospective guests, invitees, concessionaires, sponsors
andadvertisers (the constructionor installation of any suchchangesand alterations referred to in this
42
item (i) being collectively referred to herein as the "RequestedWork"),(ii) makechanges
alterations in, to or of its ownTenantFacilities (other than the "Tenant’sFacilities" as definedin the
Existing RodeoLease which shall be governed by the terms of the Existing RodeoLease), and
(iii) makethose changesand alterations to the Stadiumwhichare describedin item (i) aboveif, after
request by such Tenant, Landlordfails to do so (the construction or installation of any such changes
and alterations referred to in items (ii) and (iii) abovebeing collectively referred to herein
"Additional Tenant Work"). All completed Additional Tenant Workshall becomethe property of
Landlord as contemplated in the Lease Agreements. The performance of any Additional Tenant
Workby a Tenant shall in all cases complywith the following requirementsand conditions:
(a)
AnyMaterial Additional Tenant Workshall be subject to the following
procedures and requirements:
(i)
Tenant shall deliver all Additional Tenant WorkDesign Plans
regarding the proposed Material Additional Tenant Work to the Landlord
Representativeand the TenantRepresentativeof the other Tenant(the "Other Tenant
Representative")at least thirty (30) days prior to the commencement
of any Material
Additional Tenant Work. Uponreceipt from a proposing Tenant of any Additional
Tenant WorkDesignPlans regarding proposedMaterial Additional Tenant Work,the
LandlordRepresentative and the Other Tenant Representative shall review the same
(which review shall be in accordance with Section 20.3 of the TeamLease
Agreementand Section 21.3 of the RodeoLease Agreement)and shall promptly (but
in any event withinthirty (30) days after receipt) give the proposingTenantnotice
the approval or non-approvalof the LandlordRepresentative and the Other Tenant
Representative(in each party’s reasonablediscretion), and further, in the event of
non-approval,such notice shall set forth in reasonable detail the reasons for such
non-approval;
(ii)
If the LandlordRepresentative or the Other Tenant Representative
gives the proposing Tenant notice of the non-approval of any of the Additional
Tenant WorkDesign Plans, the proposing Tenant shall have the right within thirty
(30) days after the date of such notice to resubmit any such Additional TenantWork
DesignPlans to the LandlordRepresentative and the Other Tenant Representative,
modifiedas necessaryin response to the non-approvingRepresentative’s reasons for
such non-approval, until the Additional Tenant WorkDesignPlans are approvedby
the non-approving Representative. All subsequent resubmissions of Additional
Tenant WorkDesign Plans by a proposing Tenant must be made within fifteen
(15) days after the date that notice of the non-approvalis receivedfromthe Landlord
Representativeor the Other TenantRepresentativeas to the prior resubmission.Any
resubmissionshall be subject to reviewby the LandlordRepresentativeand the Other
Tenant Representative (in each party’s reasonable discretion) in accordancewith
Section9.1 (a)(i), except that the time period for reviewand responseby the Landlord
Representativeand the Other Tenant Representative shall be fifteen (15) days; and
43
(iii) Uponthe approval by the Landlord Representative and the Other
Tenant Representative of the Additional Tenant WorkDesign Plans, the proposing
Tenant may commencesuch approved Material Additional Tenant Work and
prosecute such approved Material Additional Tenant Workto completion without
any further approval by LandlordRepresentativeor the Other TenantRepresentative.
(b)
Any Additional Tenant Workshall, once commenced,be made with due
diligence (subject to ExcusableTenant Delay) and shall be completedin accordance with
the provisions of this Agreementin a goodand workmanlikemannerand in compliancewith
all applicable GovernmentalRules;
(c)
AnyAdditional Tenant Workshall, whencompleted, be of such a character
so as not to (i) reduce the utility of the LeasedPremisesor ConcessionImprovements
below
the utility immediatelybefore such Additional Tenant Work,(ii) diminish the rights
interests of either Tenantor Landlordhereunderor under any of the other Principal Project
Documents,or (iii) weakenor impair the structural integrity of the Leased Premises
Concession Improvements;
(d) Thecost of any Additional TenantWorkshall be paid in cash or its equivalent
by the proposing Tenant from its ownfunds (subject to reimbursementin somecases as
providedin the relevant Lease Agreement)pursuant to customaryconstruction disbursement
procedures for the performance of such work, including taking commerciallyreasonable
measuresto cause the LeasedPremisesto be free fromall Liensor security interests for the
cost of such Additional TenantWork,subject to such Tenant’s right to dispute any Lien or
claim of Lien pursuant to Section 6.4 of the Lease Agreements;
(e)
All Additional Tenant Work shall, once commenced,be completed
accordancewith all Additional Tenant WorkDesign Plans whichplans shall be reasonably
approvedby the LandlordRepresentative and the Other Tenant Representative to the extent
such approvalis required herein;
(f)
Except as set forth below, no Additional Tenant Workshall be performed
any time during a scheduled Landlord Event Dayor during any scheduled Tenant Event Day
of the other Tenantwithoutthe prior written consentof Landlordor such other Tenant, as the
case maybe. To the extent that a Tenant or Landlordbelieves, in such Party’s reasonable
judgment,that any Additional Tenant Workproposedby the other Tenant mayinterfere with
a scheduledEvent, the Additional TenantWorkshall be postponedto a later date acceptable
to all such affected Parties. Notwithstandingthe foregoing, a Tenantmayat any time, with
or without the approval of the Landlord or the other Tenant, perform Additional Tenant
Workin its respective TenantFacilities (other than the "Tenant’sFacilities" as definedin the
Existing RodeoLease which shall be governedby the terms of the Existing RodeoLease)
irrespective of whether such workis performedon a Landlord Event Dayor on a Tenant
Event Dayof the other Tenant so long as such Additional Tenant Workdoes not interfere
with the Landlord’sor other Tenant’s use and enjoymentof the LeasedPremises; provided,
44
however,each Tenantshall makea goodfaith effort to use all reasonablecommercialefforts
not to perform Additional Tenant Workon a Landlord Event Dayor on a Tenant Event Day
of the other Tenant to the extent the prosecution thereof wouldinterfere, in any material
respect with the Eventin question;
(g) Notwithstanding the foregoing, Additional Tenant Work shall not
classified as Material Additional Tenant Workif such Additional Tenant Workis being
performedpursuant to the provisions of Section 17.5 of the TeamLease or Section 18.5 of
the RodeoLease; and
(h) In the event the Additional Tenant Workmaterially or adversely effects any
ConcessionOperations, Signage, operating costs of the other Tenant, or the other Tenant’s
or Landlord’sability to produceits Eventsas historically producedprior to the time in
question, Tenant shall deliver all Additional Tenant WorkDesign Plans regarding the
proposed Additional Tenant Workto the other Tenant Representative and the Landlord
Representative at least thirty (30) days prior to the commencement
of any such Additional
Tenant Workand receive the approval of such Additional Tenant WorkDesign Plans from
the other Tenant Representative and the Landlord Representative as if such Additional
Tenant Workwere Material Additional Tenant Work.
Section 9.2 Landlord. Subject to the limitations and requirements contained in this
Section 9.2, Landlordshall have the right at any time and from time to time to makechangesand
alterations in, to or of the LeasedPremises("AdditionalLandlordAlterations"). For purposesof this
Agreement,"Additional LandlordWork"shall collectively refer to (x) construction or installation
of any Requested Workor Additional Landlord Alterations, (y) Capital Repairs required under
Section 6.2 of the LeaseAgreements,and (z) any other construction, installation or repair workin,
to or of the Leased Premises or ConcessionImprovementsrequired or permitted to be done as a
result of Casualty damageunder Article 12 of the TeamLease or Article 13 of the RodeoLease or
Condemnation
under Article 13 of the TeamLease or under Article 14 of the RodeoLease, as the
case maybe. Additional LandlordWorkshall not include any improvementsthat are madepursuant
to the provisions of Section 7.2 hereof. Theperformanceof Additional LandlordWorkby Landlord
shall in all cases complywith the following requirementsand conditions:
(a)
AnyMaterial Additional Landlord Workshall be subject to the following
procedures and requirements:
(i)
Landlord shall deliver all Additional Landlord WorkDesign Plans
regarding the proposed Material Additional Landlord Work to each Tenant
Representative at least thirty (30) days prior to the commencement
of any Material
Additional Landlord Work.Uponreceipt from Landlord of any Additional Landlord
WorkDesign Plans regarding proposed Material Additional Landlord Work, each
Tenant Representative shall review the same(which review shall be in accordance
with Section 20.3 of the Lease Agreements)and shall promptly (but in any event
within thirty (30) days after receipt) give Landlordnotice of the approvalor non-
45
approval of each TenantRepresentative(in its sole discretion), and further, in the
event of a non-approval,the notice shall set forth in reasonabledetail the reasonsfor
any such non-approval;
(ii) Ifa Tenant Representative gives Landlord notice of non-approval
any of the Additional Landlord WorkDesign Plans, Landlord shall have the right
within thirty (30) days after the date of such notice to resubmitany such Additional
Landlord WorkDesign Plans to each Tenant Representative, modified as necessary
in response to the non-approvingTenantRepresentative’s reasons for non-approval,
until the Additional LandlordWorkDesign Plans shall be approvedby each Tenant
Representative. All subsequent resubmissions of Additional Landlord WorkDesign
Plans by Landlordmustbe madewithin fifteen (15) days after the date that notice
the non-approval is received from a Tenant Representative as to the prior
resubmission. Any resubmission shall be subject to review by each Tenant
Representative (in each party’s reasonable discretion) in accordance with
Section 9.2(a)(i~, except that the time period for reviewand responseby each Tenant
Representativeshall be fifteen (15) days; and
(iii) Uponthe approval by each Tenant Representative of the Additional
Landlord Work Design Plans, Landlord may commencesuch approved Material
Additional Landlord Work and prosecute such approved Material Additional
Landlord Workto completion without any further approval by either Tenant
Representative.
(b) Any Additional Landlord Workshall, once commenced,be made with due
diligence (subject to ExcusableLandlordDelay) and shall be completedin accordancewith
the provisions of this Agreementin a goodand workmanlikemannerand in compliancewith
all applicable GovernmentalRules;
(c)
AnyAdditional LandlordWorkshall, whencompleted, be of such a character
as not to (i) reduce the utility of the Leased Premises or AstrodomainComplex,or any
portion thereof, below the utility immediately before such Additional Landlord Work,
(ii) diminish the rights or interests of either Tenant hereunderor under any of the other
Principal Project Documents,
or (iii) weakenor impair the structural integrity of the Leased
Premises or AstrodomainComplex,or any portion thereof;
(d) The cost of any Additional Landlord Workshall be paid in cash or its
equivalent by Landlordfrom its ownfunds pursuant to customaryconstruction disbursement
procedures for the performance of such work, including taking commerciallyreasonable
measuresto cause the LeasedPremisesor AstrodomainComplex,or any portion thereof, as
the case maybe, to be free fromall Liensor security interests for the cost of suchAdditional
LandlordWork,subject to Landlord’sright to dispute any Lien or claim of Lien pursuant to
Section 6.4 of the Lease Agreements;
46
(e) All Material Additional Landlord Workshall, once commenced,be completed
in accordance with all Additional Landlord WorkDesign Plans approved by both Tenant
Representatives;
(f)
Subject to the provisions of Sections 10.2.1, 10.2.2 and 10.2.3 of the Team
Lease and 11.2.1, 11.2.2 and 11.2.3 of the RodeoLease, no Additional LandlordWorkshall
be performedat any time during a scheduled Tenant Event Daywithout the prior written
consent of the affected Tenant. To the extent that a Tenant believes, in its reasonable
judgment, that any contemplatedAdditional LandlordWorkmayinterfere with a scheduled
Tenant Event, the Additional LandlordWorkshall be postponedto a later date acceptable
to all suchaffected Parties; and
(g)
In the event the Additional LandlordWorkmaterially or adversely effects any
ConcessionOperations,Signage,operating costs of a Tenant, or a Tenant’sability to produce
its Eventsas historically producedprior to the time in question, Landlordshall deliver all
Additional Landlord WorkDesign Plans regarding the proposed Additional Landlord Work
to both Tenant Representatives at least thirty (30) days prior to the commencement
of any
such Additional Landlord Workand receive the approval of such Additional LandlordWork
Design Plans from each such Tenant Representative as if such Additional Landlord Work
were Material Additional Landlord Work.
Section 9.3 WorkPerformed - General Requirements. All Additional Tenant Work
and Additional LandlordWork(a) shall be prosecuted with due diligence in a goodand workmanlike
mannerin accordance with standard construction practices for construction, repair, renewal,
renovation, demolition, rebuilding, addition or alteration, as the case maybe, of improvements
similar to the improvementsat the AstrodomainComplexor the Leased Premises, as the case may
be, using qualified workers and subcontractors, and in compliancewith the provisions of this
Agreementand (b) shall be completed with all reasonable dispatch, free of any Liens and
encumbrancesother than the Permitted Encumbrancesand any permitted Facility Mortgage.
Section 9.4 WorkPermits. Neither Tenants nor Landlord shall do or permit others to do
any Additional Tenant Workor Additional Landlord Work,respectively, unless such performing
Party shall have first procured and paid for all permits and authorizations then required by all
applicable GovernmentalAuthorities for the workbeing performed. The review by Landlord or a
Tenantof any matter submittedpursuant to Section 9.1 or Section 9.2 hereof shall not constitute a
replacementnor substitute for, nor otherwiseexcusea Tenantor Landlord,as the case maybe from,
any permitting processes of GovernmentalAuthorities applicable to the AstrodomainComplex,the
LeasedPremises, the Additional TenantWorkor the Additional LandlordWork,as the case maybe.
Landlordagrees, with reasonablepromptnessafter receipt of a written request therefor froma Tenant
and at such Tenant’s reasonable cost and expense, to execute, acknowledgeand deliver (or to join
with such Tenant in the execution, acknowledgment
and delivery of) in its capacity as the ownerof
a leasehold interest in the Leased Premises, and to have the County execute, acknowledgeand
deliver in its capacity as ownerof the fee interest in the LeasedPremises,as necessary:(a) any and
all applications for licenses, permits, transfers of permits or other authorizations of any kind or
47
character required of a Tenant by any GovernmentalAuthority in connection with any Additional
TenantWorkand (b) easementsand/or rights-of-wayfor public utilities or similar public facilities
over and across portions of the AstrodomainComplexfor a term not exceeding the then remaining
Lease Termof the applicable Lease Agreementwhich maybe useful and/or necessary in the proper
economicand orderly developmentof the Leased Premises.
Section 9.5 Increase in Guaranteed Payment.
(a)
If any changes, alterations or additions to the Leased Premises to
performedby a Tenant, or by Landlordat a Tenant’s request, will result in an increase in
Landlord’s Capital Repair or Maintenancecosts, and Landlorddoes not desire to allow or
makesuch change, alteration or addition due to such increased costs, Landlordshall inform
the proposingTenantof the amountof the expectedadditional capital repair or Maintenance
costs due to such change, alteration or addition and the proposing Tenant shall have the
option to either not pursue such change, alteration or addition or to pursue such change,
alteration or addition and increase its annual GuaranteedPaymentby an amountsufficient,
in the reasonable determination of Landlord and the proposing Tenant, to cover such
increased costs. If the proposingTenant’s GuaranteedPaymentis thus increased, the amount
by which the GuaranteedPaymentis increased shall, whenreceived, be deposited in, and
becomea part of, the Capital Repair ReserveFundto the extent that the increase is due to
increased capital repair costs and/or the Landlord’soperation and Maintenancefund to the
extent that the increase is due to increased Maintenancecosts.
(b)
Nothingin this Section 9.5 is meant to, nor shall be construed to, limit
Landlordduties and obligations to operate, maintain and repair the LeasedPremisesas set
forth in Article 6 of the Lease Agreements.
Section 9.6 Statues. In the event that the TeamLease is in force and effect and prior to
the Rodeolocating any Statue in the Highly Restricted Area, the Rodeoshall obtain the Team’s
consent, whichshall not be unreasonablywithheld, to the location of such Statue within the Highly
Restricted Area.
ARTICLE10
USE OF CAPITAL REPAIR RESERVE FUND
Section 10.1 Appointmentof Capital Repair Committee. The Landlord, the Teamand
the Rodeoagree that the Capital Repair ReserveFundmayonly be used to pay for Capital Repair
Expensesincurred by Landlordto fulfill its obligations under this Agreement,the LeaseAgreements
and the License Agreements.Accordingly,the Parties agree to the appointmentof a Capital Repair
Committee(hereinafter referred to as, the "Capital Repair Committee")to govern the Landlord’s
access to and use of the Capital Repair ReserveFundby Landlord. The Capital Repair Committee
will be comprisedof three (3) members,with the Landlord, the Teamand the Rodeoeach selecting
one member.EachParty mayremoveand replace its member
and select an alternate at its discretion
at any time (with notice to the other Parties) so long as the ratio of representation amongthe
48
Landlord, the Teamand the Rodeoremains 1:1:1. TheCapital Repair Committeeshall not meet less
than onceper monthon a day and at a time and place agreeable to each of the members
of the Capital
Repair Committee. At the first meeting of the Capital Repair Committee, the Capital Repair
Committeeshall establish mutually acceptable regular meeting dates, notice requirements for
meetings, procedures for the conduct of meetings (which mayinclude the conduct of meetings by
telephone and quorumrequirements) and procedures for voting. Onememberof the Capital Repair
Committee
shall be designated to maintain minutesof all meetings. EachParty shall be entitled to
bring before the Capital Repair Committee
for consideration an item it believes should be considered
by the Capital Repair Committeeconcerning Capital Repairs and/or Maintenance.As a prerequisite
to submitting a matter to the Capital Repair Committee
for review, the submitting party must submit
a reasonablydetailed proposal with regard to the matter to be considered.
Section 10.2 Releaseof Funds. Except as provided belowin Section 10.3, prior to being
entitled to withdrawany funds from the Capital Repair Reserve Fundto pay for Capital Repair
Expenses,Landlordmust receive the affirmative vote of a majority of the Capital RepairCommittee;
provided, however,that the Party whosemembervotes in the minority as to any Landlord’saccess
to and use of the Capital Repair Reserve Fundmay, at such Party’s option, submit the question
regarding whetherany particular matter meets the definition of Capital Repair or Maintenanceto
Fast-Track Arbitration, with the understandingthat the question submitted for resolution will be
whetherthe matter in question meets the definition of Capital Repair or Maintenanceas set out
herein and the decision renderedat the conclusionof Fast-TrackArbitration (and RegularArbitration
if such matter is referred to RegularArbitration after the conclusionof Fast-TrackArbitration) will
be binding on the Parties notwithstandingthe vote of the Capital Repair Committee.In the event
that the Landlord’smember
of the Capital RepairCommittee
believes that a matter before the Capital
Repair Committeeconstitutes a Capital Repair as defined herein, but such memberis outvoted by
the other membersof the Capital Repair Committee,Landlordshall nonetheless have access to the
Capital Repair Reserve Fundto pay for the Capital Repair Expenses actually incurred by the
Landlordfor the item voted on by the Capital Repair Committee,providedLandlord(i) notifies the
Teamand the Rodeoof such withdrawal at least three (3) days prior to such withdrawal and
(ii) submitssuch question to Fast-TrackArbitration within thirty (30) days after Landlord’saccess
to the Capital RepairReserveFundfor such matter. In the event the decision of the arbitrator (at the
conclusionof Fast-TrackArbitration and RegularArbitration, if such dispute is referred to Regular
Arbitration after the conclusionof Fast-TrackArbitration) is that such matter is not properlywithin
the definition of Capital Repair, Landlordmust, within ninety (90) days after the rendering of such
decision, re-deposit into the Capital Repair ReserveAccountthe funds withdrawnby Landlordwith
regard to such matter plus an amountequal to the earnings thereon that wouldhavebeen realized had
such amountremainedin the Capital Repair Reserve Account.
Section 10.3 Committee Approval Not Required. Notwithstanding the approval
proceduresoutlined abovein Section 10.2 governingLandlord’saccess to the Capital Repair Reserve
Fund, Landlordis not required to seek or obtain the approval of the Capital Repair Committeefor
(i) a release to Landlordof sumsout of the Capital RepairReserveFundfor Capital RepairExpenses
that aggregate less than $250,000.00in any Lease Year (such amountto escalate each fifth (5th)
Lease Year by 15%over the amountin effect during the previous period) (the "ApprovedAmount")
49
or (ii) a distribution permitted under Section 12.3.2, 12.3.3, 13.4.2 or 13.4.3 of the TeamLease
Section 13.3.2, 14.4.3 or 14.4.4 of the RodeoLease. Landlord must provide the Parties with
quarterly written reports as to the use by Landlordof the Capital Repair ReserveFundand indicate
on such reports those items allocated to the ApprovedAmount.If any Party disagrees with
Landlord’s use of the ApprovedAmount, such Party may submit such Dispute to Fast-Track
Arbitration.
Section 10.4 Other Uses of Capital Repair Reserve Fund. Notwithstanding the
limitations on the use of the Capital Repair ReserveFundset out in this Agreement,the Parties may
agree by unanimousconsent of all membersof the Capital Repair Committeeto allow Landlord
access to the Capital Repair ReserveFundto (i) fund any purposeto whichthe Parties agree and
(ii) finance the cost of worknecessary to (a) meet requirementsimposedprospectively by the
or performother workor makealterations to the LeasedPremiseswhich, in each case, are generally
implementedby other ComparableFacilities or, (b) meet requirements imposedprospectively
the organizations sanctioning professional rodeo events applicable to the Stadium, with the
understandingthat Landlordshall have no responsibility under the Principal Project Documents
to
meet such requirements, perform such workor makesuch alterations absent unanimousagreement
of the membersof the Capital Repair Committeeallowing Landlord access to the Capital Repair
ReserveFundto pay for such matters.
-Section 10.5 Maintenance.
Without limiting the rights and obligations of the Parties as
stated elsewhere in any of the Principal Project Documents,Landlord agrees that Landlord will
operate and maintain the AstrodomainComplex(including Bookingof Events at the Astrodomain
Complexand granting rights therein to third parties) so that serving as a site for Football Home
Games,the Spring Rodeoand the RodeoFestival, shall be the highest priority uses of the Stadium,
and all other uses shall be plannedso as not to interfere, in any manner,with the conductingof the
BookedFootball HomeGames,the Spring Rodeoor the RodeoFestival or to damageor impair, in
any manner,the condition of the Playing Field during the NFLFootball Season.
ARTICLE 11
PROCEEDS OF INSURANCE
Withoutlimiting Landlord’sobligations under the Lease Agreementswith respect to Casualty
Repair Work,the Insurance Proceeds paid under any insurance policies required under the Lease
Agreements(i.e., Section 9.1.1, Section 9.1.2 and Section 9.1.4(d) of the TeamLease or
Section 10.1.1, Section 10.1.2 and Section 10.1.4(d) of the RodeoLease) shall be paid to Landlord
for deposit into the InsuranceFund.Landlordshall (i) establish and maintainthe InsuranceAccount
at an Acceptable Bank for the sole purpose of serving as a segregated fund for the Insurance
Proceeds(the "InsuranceFund")and (ii) hold and disburse the InsuranceProceedsdepositedinto
Insurance Fundin accordancewith Articles 9 and 12 of the TeamLease and Articles 10 and 13 of
the Rodeo Lease. All funds in the Insurance Fund shall be held in escrow by Landlord for
application in accordancewith the terms of the Lease Agreementsand Landlordshall account to
Tenantsfor the sameon a monthlybasis. Thefunds in the InsuranceFundshall be invested only in
Permitted Investmentsand all earnings and interest thereof shall accrue to the InsuranceFundand
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shall be available as part of the InsuranceFund.Neither the Landlordnor the Tenantsshall create,
incur, assumeor permit to exist any Lien on the Insurance Fundor any proceedsthereof.
ARTICLE 12
REVIEW,, ASSIGNMENT AND
AMENDMENT OF STADIUM CONTRACTS
Section 12.1 Enforcement
of Contracts. Landlord agrees that Tenants are (and will cause
Tenantsto be named)third-party beneficiaries of all the StadiumContracts and any other agreements
(not otherwise constituting a StadiumContract) with third parties for the design, construction,
supply, alteration, improvement, Maintenance or renewal of any portion of the Astrodomain
Complex(such agreementsand the StadiumContracts being referred to collectively herein as the
"Enforceable Contracts"), and hereby conveys, transfers and assigns to Tenants as of the
Commencement
Date, the nonexclusive right to enforce, jointly or severally, any and all of the
respective obligations of any Person under any such Enforceable Contracts during the Lease Term,
including, but not limited to, any and all representations, covenants and warranties thereunder,
provided, that a Tenant’s right to enforce any of the EnforceableContracts during the Lease Term
shall be limited to claims arising thereunder after the Commencement
Date for whichsuch Tenant
has liability under its respective LeaseAgreement,unless an uncuredLandlordDefault shall exist,
in whichevent such Tenant’s rights shall not be so limited. However,neither Tenantsnor Landlord
shall have any obligation whatsoeverto enforce any of the Enforceable Contracts. The right of
Tenants to enforce the respective obligations of any Person under any Enforceable Contract is
independentof and separate from the rights of Landlordto enforce the sameand shall in no manner
limit or reduce the rights of Landlordto enforce the same.TheParties covenantand agree that each
will cooperate with the other in enforcing any of the terms of such EnforceableContracts, and to
promptlynotify the other in writing of any default by any Personunder any EnforceableContractand
of the remedyor course of action sought by it or to be taken by it in responseto such default.
Section 12.2 Warranty
Prosecution. Additionally, the Parties agree to cooperate with
each other in prosecutingany and all claims under any and all of the EnforceableContracts (each
"Warranty/OtherClaim"). All recoveries from any such Wan-anty/OtherClaims shall be applied,
first, to the costs of collection, second, on a proportional basis to Landlordand each Tenantto
(a) reimburseTenants or Landlord, as the case maybe, for the cost and expensesincurred by such
Party in order to (i) replace or supplementany of the goods, equipmentor services to be provided
under the Enforceable Contract and/or (ii) repair, restore, renew or replace any part of the
AstrodomainComplex(including the LeasedPremises but excluding the Practice Facilities) as
whichsuch Warranty/OtherClaim relates and whichhave not been paid out of the Capital Repair
ReserveFundand (b) to the extent such recoveryis underan EnforceableContract for defects in the
design of the Stadiumfor which Landlord maybe entitled to reimbursementfrom a Tenant under
Section 6.2.2 of the Lease Agreementsrelating to such Warranty/OtherClaimand for whichTenant
itself has no claim for such defect and third, any remainingamountsshall be deposited into the
Capital Repair Reserve Fund. Anysuch deposits into the Capital Repair Reserve Fundshall not
reduce nor offset the Landlord’sobligation to makeor cause to be madedeposits into the Capital
Repair Reserve Fund as required pursuant to the terms of the Funding Agreement. Any
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Warranty/OtherClaimrelating to the Practice Facility and the proceedsof any EnforceableContract
in connection thereof shall be handled and applied as maybe determinedby the Teamin its sole
discretion without any accountability to the Rodeoor the Landlord.
Section 12.3 Approvalof Utility Providers. Each of the Tenants shall have the right to
approve,fromtime to time, the providersof utility services servicing its TenantFacilities. Landlord
agrees that, unless Landlordhas received the prior written approval of the Tenants, Landlordwill
not permit or allowany supplier of any of the Utilities or other services providedto the Astrodomain
Complexto violate any NamingRights, Exclusivity Rights, Advertising rights, Pourage Rights,
Service Rights or BrandingRights granted to either or both of the Tenants.
ARTICLE 13
APPROPRIATIONS
Section 13.1 CurrentExpenses. The performance by Landlord of its obligations under
this Agreement,the Lease Agreementsand any of the other Principal Project Documentswhich
require an expenditureis subject to the availability of revenuesreceivedby the Landlordand, to the
extent such revenuesare insufficient for such expenditure, an Appropriation.Nothingherein shall
constitute a pledge by Landlordor the Countyof any funds, other than funds designatedpursuant to
lawful Appropriationsfrom time to time to pay any moneyor satisfy any other obligation under any
provision of this Agreement, the Lease Agreementsand any of the other Principal Project
Documents.
Section 13.2 Notice of Requestfor Appropriation.Prior to anymeetingof the governing
body of Landlordduring which it will consider the request to the Countyfor an Appropriation,
Landlord shall provide each Tenant with a copy of the request for a proposed Appropriation;
provided, however,that no provision of this Agreement,the Lease Agreementsand any of the other
Principal Project Documents,shall be construed to be an obligation of Landlord to obtain an
Appropriation, or to obligate Landlordin any waywhich wouldresult in the obligations of this
Agreementconstituting indebtedness on the part of the County in violation of any applicable
GovernmentalRules.
Section 13.3 Results of Non-Appropriation.Ifa Non-Appropriationoccurs in response
to a request for a proposedAppropriation,Landlordshall provide each Tenant and, during the Bond
Insurance Period, BondInsurer with written notice of such Non-Appropriationon or before the
twentieth (20th) day after the Non-Appropriation.NoNon-Appropriation
shall constitute a Landlord
Default under the Principal Project Documents
until such time as an UntenantableConditionresults
or there is otherwise an Event of Default by Landlord under the Principal Project Documents.
Thereafter each Tenant thereunder shall have the rights and remedies afforded to it under its
respective Lease Agreement,and the Teamand Rodeoshall have the rights and remedies afforded
to themunder the Project Agreement.To the extent that a Tenant terminates its respective Lease
Agreementand within one (1) year of such termination Appropriations are madeto fund the
performanceof obligations of Landlordunder the Principal Project Documents
whichAppropriations
relate to any obligations of the Landlordwhichobligations were not performedby the Landlorddue
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to a Non-Appropriation,Landlordshall immediatelyprovide written notice thereof to each Tenant
whereupon
the terminating Tenantshall havethe exclusive right within sixty (60) days of receipt
written notice fromLandlordof the makingof such Appropriationto elect to enter into newPrincipal
Project Documents
with Landlordon the sameterms and conditions as previously set forth therein.
In the event such Tenantfails to deliver the foregoingnotice to Landlordwithin such sixty (60) day
period, it shall be deemedto have waivedsuch right to elect to enter into newPrincipal Project
Documents
with Landlord.In the event a terminatingTenantelects to exercise such right and option,
Tenant and Landlord shall promptly thereafter execute and enter into an amendmentto such
Principal Project Documents
reinstating each of the Principal Project Documentsto its terms and
conditions that existed immediatelyprior to the termination.
ARTICLE 14
EVENT OF DEFAULT
Section 14.1 Events of Default. Theoccurrence of any of the following shall be an "Event
of Default" by a Party:
(a)
Thefailure of a Party to pay any of its monetaryobligations to another Party
under this Agreement
whendue and payable if such failure continues for ten (10) days after
a Party gives notice to the defaulting Party that such amountwasnot paid whendue;
(b)
Thefailure of a Party to performeach and every non-monetaryobligation,
covenantandagreemento f suchP arty i f suchfailure i s not remediedwithinthirty (30) days
after anotherParty gives notice to the defaulting Party of such failure;
(c)
Anymaterial representation or warrantyconfirmedor madein this Agreement
by a Party shall be found to have been incorrect in any material respect whenmadeor
deemedto have been madeif such failure is not remediedwithin thirty (30) days after
another Party gives notice to the defaulting Party of such failure;
(d)
Theexistence of a breach or default by such Party under any of the Principal
Project Documents,other than the Existing RodeoLease (after the expiration of any
applicable notice and cure period); or
(e) The (i) filing by any Party of a voluntary petition in bankruptcy;
(ii) adjudication of such Party as a bankrupt; or (iii) the filing of any petition or other
pleading in any action seeking reorganization, rearrangement, adjustment, or composition
of, or in respect of such Party under the UnitedStates BankruptcyCodeor any other similar
state or federal law dealingwithcreditors; rights generally,unless withinsixty (60) daysafter
suchfiling such proceedingis discharged;or (iv) appointmentof a receiver, trustee or other
similar official of such Party or its property.
Section 14.2 Landlord’s Remedieswith respect to Tenants. Uponthe occurrence of an
Eventof Default by a Tenant, such an Eventof Default shall constitute a Tenant Default under its
53
Lease Agreementwith Landlordand Landlord may, in its sole discretion, pursue any one or more
of Landlord’s remedies for such Tenant Default under such Lease Agreement.
Section 14.3 Tenant’s Remedieswith respect to Landlord. Uponthe occurrence of an
Eventof Default by Landlord,such Event of Default shall constitute a LandlordDefault under each
of the LeaseAgreements,and the Tenantsmay,at their respective sole discretions pursueany of the
remedies for such Landlord Default under their respective Lease Agreements.
Section 14.4 Tenant’s Remedieswith respect to other Tenant. Uponthe occurrence of
an Eventof Default by a Tenant, the non-defaultingTenantmay,at its sole discretion, exercise any
and all other remediesavailable to such Tenantagainst the defaulting Tenantat law or in equity, but
subject to any limitations thereon set forth in this Agreementor any of the Principal Project
Documents.
Section 14.5 CumulativeRemedies.Subject to the provisions of this Article 14 and any
applicable limitations set forth in the Lease Agreements,each right or remedyof a Party provided
for in this Agreementor any of the other Principal Project Documentsshall be cumulativeof and
shall be in addition to everyother right or remedyof a Party providedfor in this Agreement,and the
exercise or the beginningof the exercise by a Party of any one or moreof the rights or remedies
providedfor in this Agreement
shall not precludethe simultaneousor later exercise by a Party of any
or all other rights or remediesprovidedfor in this Agreement
or hereafter existing at lawor in equity,
by statute or otherwise.
Section 14.6 Indirect Damages. EXCEPT AS EXPRESSLYPROVIDEDIN THE
LEASE AGREEMENTSTO THE CONTRARY, IN NO EVENT SHALL ANY PARTY BE
LIABLE TO ANY OTHER PARTY UNDER ANY PROVISION OF THIS AGREEMENT
FOR LOST OR PROSPECTIVE PROFITS, OR FOR ANY OTHER SPECIAL, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, IN
CONTRACT, TORT OR OTHERWISE,
WHETHER OR NOT CAUSED BY OR
RESULTING FROM SUCH PARTY’S OWN, SOLE OR CONCURRENT NEGLIGENCE
OR THE NEGLIGENCE OF ITS AFFILIATES OR RELATED PARTIES, INCLUDING
CLAIMS OF THE OTHER PARTY ARISING OUT OF THIRD PARTY CLAIMS.
Section14.7 Declaratory_
or InjunctiveRelief. In addition to the remediesset forth in this
Article 14, the Parties shall be entitled, in any circumstancesthey maydeemappropriate, without
the necessity of proving irreparable harm,balance of claims, consideration of the public interest,
establishing that monetarydamagesare inadequateor the posting of a bond, to seek (i) injunctive
relief, whetherprohibiting or mandating,action by the other Party for any Eventof Default of the
other Party or as otherwiseexpressly providedherein or (ii) declaratory relief with respect to any
matter under this StadiumTri-Party Agreementor the other Principal Project Documents.Each of
the Parties herebyagrees and irrevocablystipulates that the rights of each Party to injunctive relief
pursuant to this StadiumTri-Party Agreement,including this Section 14.7 and the other Principal
Project Documentsshall not constitute a "claim" pursuant to Section 101(5) of the United States
54
BankruptcyCodeand shall not be subject to discharge or restraint of any nature in any bankruptcy
proceedinginvolving the Party to whichany such injunctive relief applies.
Section 14.8 Interest on OverdueObligations and Post-JudgmentInterest. If any sum
due hereunderis not paid by the due date thereof, the Party hereto owingsuch obligation to the other
Party shall pay to the other Party interest thereon at the Interest Rate concurrentlywith the payment
of the amount,such interest to begin to accrue as of the date such amountwas due. Anypayment
of such interest at the Interest Rate pursuant to this Agreement
shall not excuseor cure any default
hereunder. All paymentsshall first be applied to the paymentof accrued but unpaidinterest. The
amountof any judgmentor arbitration awardobtained by one Party against the other Party in any
Action or Proceedingarising out of a default by such other Party under this Agreementshall bear
interest thereafter until paid at the Interest Rate.
Section 14.9 No Waivers.
(a)
General.Nofailure or delay of any Party, in any one or moreinstances, (i)
exercising any power, right or remedyunder this Agreementor (ii) in insisting uponthe strict
performanceby another Party of such other Party’s covenants, obligations or agreementsunder this
Agreement,shall operate as a waiver, discharge or invalidation, thereof, nor shall any single or
partial exercise of any such right, poweror remedyor insistence on strict performance, or any
abandonment
or discontinuanceof steps to enforce such a right, poweror remedyor to enforce strict
performance,preclude any other or future exercise thereof or insistence thereuponor the exercise
of any other right, poweror remedy.The covenants, obligations, and agreementsof a defaulting
Party and the rights and remediesof another Party upona default shall continue and remainin full
force and effect with respect to any subsequentbreach, act or omission.
(b) No Accord and Satisfaction.
Without limiting the generality
of
Section 14.9(a), the receipt by a Party of any paymentrequired hereunder with knowledgeof a
breach by the paying Party of any covenant, obligation or agreementunder this Agreement
shall not
¯ be deemedor construed to be a waiver of such breach (other than as to the required payment
received). The paymentby a Party of any paymentrequired hereunder with knowledgeof a breach
by the receiving Party of any covenant, obligation or agreementunder this Agreementshall not be
deemedor construed to be a waiver of such breach. Noacceptance by a Party of a lesser sumthan
then due shall be deemedto be other than on accountof the earliest installment of the amountsdue
under this Agreement, nor shall any endorsement or statement on any check, or any letter
accompanyingany check, wire transfer or other payment,be deemedan accord and satisfaction. A
Party mayaccept a check, wire transfer or other paymentwithoutprejudiceto its right to recover the
balance of such installment or pursue any other remedyprovided in this Agreement.
Section 14.10 Effect of Termination.If the Landlordor a Tenant elects to terminate this
Agreement
pursuant to its rights or remediesunder the Principal Project Documents,the obligations
of the terminating Party to the other Parties under this Agreement
and the other Principal Project
Documents
shall, on the effective date of such termination, terminate (except for the obligations
herein that expressly are to survive termination hereof). Terminationof a Party’s obligations under
55
this Agreement
shall not alter the then existing claims, if any, of the terminatingParty or the other
Parties for breachesof this Agreement
occurringprior to such terminationand the obligations of the
Parties hereto with respect thereto shall survive termination.
Section 14.11 Waiver of ConsumerRights. THE PARTIESAGREETHATTHETEXAS
DECEPTIVE TRADE PRACTICES - CONSUMERPROTECTIONACT, SECTION 17.41 ET
SEQ. BUSINESS & COMMERCECODE DOES NOT APPLY TO EITHER LANDLORDOR
TENANTS SINCE NONE OF THEM QUALIFIES
AS A "CONSUMER" UNDER
SECTION17.45(4) THEREOF.
Section 14.12 CourtProceedings.Subject to the agreementof the Parties contained in this
Agreement
regarding arbitration and other alternative proceduresfor dispute resolution, any Action
or Proceedingagainst any Party arising out of or relating to this Agreementor any transaction
contemplatedhereby or any judgmententered by any court in respect thereof maybe brought in any
federal or state coui’t located in the City, and each Party hereby submits to the nonexclusive
jurisdiction of such courts for the purposeof any such Action or Proceeding. To the extent that
service of process by mail is permitted by applicable law, each Party irrevocably consents to the
service of process in any such Actionor Proceedingin such courts by the mailing of such process
by registered or certified mail, postageprepaid, at its address for notice providedfor herein. Each
Party irrevocably agrees not to assert any objection that it mayever haveto the laying of venueof
any such Actionor Proceedingin any federal or state court located in the City, and any claim that
any such Actionor Proceedingbrought in any such court has been brought in an inconvenientforum.
EachParty agrees not to bring any action, suit or proceedingagainst the other Party arising out of
or relating to this Agreement
or any transaction contemplatedherebyexcept in a federal or state court
located in the City.
Section 14.13 Attorneys’Fees. If any Party places the enforcementof this Agreement,or
any part thereof, or the exercise of any other remedyherein providedfor such default, in the hands
of an attorney whoinstitutes an Action or Proceedingupon the same(either by direct action or
counterclaim),the non-prevailingParty shall pay to the prevailingParty its reasonableattorneys’ fees
and costs of court. In addition to the foregoingawardof attorneys’ fees to the prevailing Party, the
prevailing Party shall be entitled to its attorneys’ fees incurred in any post-judgmentproceedingto
collect or enforce the judgment. This provision is separate and several and shall survive the
expiration or earlier termination of this Agreementor the merger of this Agreementinto any
judgmenton such instrtunent.
Section 14.14 Cross-Defaults. Additionally, the Parties acknowledgeand agree that a
default (subject to any applicable notice, grace or cure periods) by the Landlordunder any of the
Principal Project Documents
to whichit is a party shall constitute a default under all such Principal
Project Documentsas well as an Event of Default under this Agreement. Similarly, a default
(subject to any applicable notice, grace or cure periods) by the Teamor Rodeo,as the case maybe,
underany of the Principal Project Documents
to whichit is a party shall constitute a default by that
Party under all such Principal Project Documents
to whichit is a party; provided,however,that such
a default shall not be construedas a default by the other Tenantunder any of the Principal Project
56
Documents
to whichit is a party or this Agreement
unless such other Tenanthas actually defaulted
under such documents.
ARTICLE 15
DISPUTE/DEADLOCK RESOLUTION PROCEDURES
Section 15.1 Settlement by MutualAgreement.In the event any dispute, controversy or
claim betweenthe Parties arises under this Agreementor is connectedwith or related in any wayto
this Agreement
or any right, duty or obligation arising herefromor the relationship of the Parties
hereunder (a "Dispute or Controversy"), including, but not limited to, a Dispute or Controversy
relating to the effectiveness, validity, interpretation, implementation,termination, cancellation or
enforcementof this Agreement,
the Parties shall first attemptin goodfaith to settle and resolve such
Dispute or Controversyby mutual agreementin accordancewith the terms of this Section 15.1. In
the event a Disputeor Controversyarises, either Party shall havethe right to notify the other Parties
that it has elected to implement
the proceduresset forth in this Section15.1. Withinfifteen (15) days
after delivery of any suchnotice by one Party to the other Parties regardinga Disputeor Controversy,
the LandlordRepresentative and the Tenant Representatives, as the case maybe, shall meet at a
mutuallyagreedtime and place to attempt, with diligence and goodfaith, to resolve and settle such
Dispute or Controversy. Shoulda mutual resolution and settlement not be obtained at the meeting
of the LandlordRepresentativeand the TenantRepresentatives, as the case maybe, for such purpose
or should no such meeting take place within such fifteen (15) day period, then any Party may
notice to the other Party or Parties submitthe Dispute or Controversyto arbitration in accordance
with the provisions of Section 15.2 belowand Exhibit "A". Uponthe receipt of notice of referral
to arbitration hereunder,the receiving Party or Parties shall be compelledto arbitrate the Disputeor
Controversyin accordancewith the terms of this Section 15.1 and Exhibit "A"without regard to the
justiciable character or executory nature of such Dispute or Controversy.
Section 15.2 Arbitration. Each Party hereby agrees that anyDisputeorControversywhich
is not resolved pursuant to the provisions of Section 15.1 aboveshall be submitted to binding
arbitration hereunderand if submittedshall be resolvedexclusivelyand finally throughsuch binding
arbitration in accordancewith the Arbitration Procedures; provided, however,that no decision or
ruling of an arbitration shall imposea requirementfor a Party to give notice or a cure period where
no such requirement or cure period is established by this Agreement. This Section 15.2 and
Exhibit "A" constitute a written agreementby the Parties in question to submitto arbitration any
Dispute or Controversyarising after the Effective Date within the meaningof Section 171.001of the
Texas Civil Practice and RemediesCode.
Section 15.3 Emergency
Relief. Notwithstanding any provision of this Agreementto the
contrary, any Party mayseek injunctive relief or other formof ancillary relief at any time fromany
court of competentjurisdiction in Harris County,Texas. In the event that a Dispute or Controversy
requires emergencyrelief before the matter maybe resolved under the Arbitration Procedures,
notwithstandingthe fact that any court of competentjurisdiction mayenter an order providingfor
injunctive or other formof ancillary relief, the Parties expresslyagree that the Arbitration Procedures
57
will still govemthe ultimate resolution of that portion of the Dispute or Controversynot resolved
pursuant to said court order.
CONFIDENTIAL,
ARTICLE 16
PROPRIETARY, AND TRADE SECRET INFORMATION
Section 16.1 Acknowledgmentof Confidential Nature of Agreements. The Parties
acknowledge
and agree that agreementsentered into by the Tenants, individually and jointly, with
private entities pursuant to the rights of the Tenants hereunder and under the Principal Project
Documents,together with any and all information and documentsrelated thereto, including without
limitation, any agreementsrelating to NamingRights, Advertising, Signage, Sponsors, Branding
Rights, Service Rights, PourageRights and any rights granted pursuant to the AstrodomainJoint
MarketingTermsand Conditions("Private Contract Rights") will contain confidential, proprietary,
and trade secret information.TheParties acknowledge
that third parties mayrestrict the distribution
to or by the Parties of information, documentsand contracts in order to protect confidential,
proprietary, and trade secret information.
Section 16.2 Audit. The Tenants shall cause an annual audit of all paymentsowedto the
Landlord under the Principal Project Documentsto be performed by a third party independent
certified public accounting firm, and shall cause such firm to provide a letter to the Landlord
confirmingthe accuracy of the Landlord’sreceipt of any funds owedpursuant thereto. In addition,
the Landlordshall havethe right to engagea third party independentcertified public accountingfirm
to discuss with the third party independentcertified public accountingfirm engagedby the Tenants
for the purposeof confirmingthe conclusionsof the Tenants’independentcertified public accounting
firm regarding the paymentsmadeby the Tenantsto the Landlord. TheParties acknowledgethat the
Tenants will require any third party independentcertified public accountingfirm engagedby the
Landlord,to the extent permittedby law, to enter into a confidentiality agreementacceptable to the
Tenantsrequiring that all confidential, proprietary and trade secret informationnot be disclosed.
Exceptas providedabove, Landlordshall haveno right to audit or reviewthe information, records,
and contracts relating to the Private Contract Rights or any sums owedto Landlord under the
Principal Project Documents.In the event that MBIA
requests the Tenants to provide access for
MBIA
(during the BondInsurance Period) to review the results of such audit, the Tenants shall
reasonably cooperate with MBIA
in providing such access and review to MBIA;provided, however,
in no event shall MBIA
have the right to obtain or retain a copythereof unless MBIA
has executed
the letter attached as Exhibit "P", and in any event any such reviewof informationby MBIA
shall
be subject to the standard confidentiality proceduresfrom time to time implementedby MBIA
with
respect to informationof this type.
Section 16.3 Opiuion Request. If any Person requests the Landlord or any of its agents
to disclose any informationof a confidential, proprietary or trade secret nature with respect to the
Private Contract Rights under the Texas Public Information Act (Tex. Gov’t. Code Ann. Sec.
552.001et seq.) or equivalent or successor statute (the "OpenRecordsAct"), prior to makingany
such disclosure the Landlordshall notify the Tenantsof such request in writing within five business
days of receipt of such request, and the Tenants shall notify the Landlordin writing whetherthe
58
Tenants desire that the Landlord request a determination from the Texas Attorney General as to
whether the requested information must be disclosed pursuant to the OpenRecords Act. If the
Tenantsso notify the Landlord, the Landlordshall provide all assistance to the Tenantsneededto
provide for the drafting of an open records opinion request (the "Opinion Request") so that the
OpinionRequest maybe completedand filed with the Texas Attorney General within ten business
days after the initial receipt of the request for the informationby the Landlordor otherwise as
required by law. The Landlord and the Tenants shall file the Opinion Request with the Texas
Attorney General within ten business days after the information request was received by the
Landlord.After the OpinionRequestis so filed, each Party shall cooperatewith each other Party in
preparingappropriate responsesand/or filings to the TexasAttorneyGeneraland to any other Person
with respect to the information request and OpinionRequest, including any appeals involved with
respect thereto, to prevent the disclosure of such information.EachParty shall also cooperatewith
each other Party and use reasonable efforts to promptlyidentify any possible third party whose
privacy or property interests maybe compromised
by any such informationrequest in order to enable
the Landlordto timely furnish to any such third party any statutory notice required by the Open
Records Act and to seek any applicable exemptionsfrom disclosure under the OpenRecords Act.
ARTICLE 17
ASSIGNMENT
Section 17.1 Assignments of the Teamand Rodeo’s Interest. Except as otherwise
permittedby this Article 17 or Section 5.10 hereof or unless such Transferis a PermittedTransfer,
the Teamand Rodeomaynot (and the Teamand Rodeoeach agree that they will not), voluntarily,
involuntarily, by operation of law or otherwise,sell, assign or transfer their respectiverights under
this Agreement
(each, a "Transfer")(i) withoutfirst obtainingthe consentof the other Parties, which
consent shall not be unreasonablywithheld, delayedor conditioned, and (ii) only in connectionand
concurrentwith a transfer of all such Tenant’srights and obligations underall of the other Principal
Project Documents
in accordancewith the terms of such other Principal Project Documents.Subject
to the provisions of this Agreementand the other Principal Project Documents,the Teamand the
Rodeoshall each have the right to sublicense all or a part of the rights granted to each of them
pursuant to this Agreement.Nosuch sublicense will release the sublicensing Party of any of such
Party’s obligations hereunder.
Section 17.2 Releaseof the Teamand Rodeo.NoTransfer shall relieve the transferring
Tenantfrom any of its obligations under this Agreement
except and to the extent such transferring
Tenant is released under the applicable Lease Agreementin connection with such Transfer.
Section 17.3 Transfers by Landlord.Except as otherwise permitted by this Article 17,
Landlordshall not (and Landlordagrees that it will not) voluntarily, involuntarily, by operation
law or otherwise, sell, assign or otherwisetransfer this Agreement
or any of its rights, obligations
or duties under this Agreement(a "LandlordTransfer") without first obtaining the consent of the
Tenants and, during the BondInsurance Period, the BondInsurer, which consent maybe withheld
in Tenants’or BondInsurer’s sole discretion. Notwithstanding
the precedingrestrictions on Landlord
Transfers, the consentof the Tenantsand, during the BondInsurancePeriod, the BondInsurer to the
59
following Transfers shall be deemedto have been obtained, provided no uncured Event of Default
of Landlordfor whichthe Tenants havedelivered notice to Landlordshall then exist: (a) Facility
Mortgagespermitted pursuant to the terms of Article 15 of the TeamLease and Article 16 of the
RodeoLease; (b) a LandlordTransfer that is in connectionand concurrentwith (i) a transfer of
of Landlord’s rights and obligations under the Lease Agreementsin accordance with the terms
thereof and (ii) a transfer of all of Landlord’srights and obligations underall of the other Principal
Project Documentsin accordance with the terms of such other Principal Project Documents;and
(c) any assignmentof rights hereunderto the Countyor a CountyAffiliate that is in connectionand
concurrentwith a transfer of all of Landlord’srights and obligations under all of the other Principal
Project Documentsin accordancewith the terms of such other Principal Project Documents.
Section 17.4 Release of Landlord.NoLandlord Transfer shall relieve Landlord from any
of its obligations under this Agreement
except and to the extent Landlordis released underthe Lease
Agreementsin connection with such Landlord Transfer.
ARTICLE 18
MISCELLANEOUS
Section 18.1 Interdependenceof Documents.The Parties acknowledgeand agree that
this Agreement,and the other Principal Project Documentsare mutually interdependent and are
intended to be read together, but, except as maybe expressly provided to the contrary in this
Agreement,in the event of any inconsistency or conflict amongthis Agreementand the other
Principal Project Documents,the terms of this Agreementshall control.
Section 18.2 TenantCoordinationClause. Each Tenant agrees that, to the extent that
either Tenant is nameda third-party beneficiary to any service contract (including any contract
entered into by Landlord with a ComplexManager), equipmentlease, maintenanceand warranty
contract or other material contract relating to the AstrodomainComplexor goods or services
providedthereto whichrelate to the Tenant’s operations and whichaffects in any material respect
the rights and interests of the other Tenant (collectively referred to herein as the "Stadium
Contracts"), the Tenantsshall coordinatewith each other to enforce any rights that either Tenantmay
be entitled to under such agreementsfor the benefit of both Tenantsor for the benefit of the other
Tenant, at the other Tenant’s request and expense.
Section 18.3 Coordination on Amendments.The Parties acknowledge and agree that
simultaneouslywith or prior to the executionof this Agreement,Landlordhas entered into the Lease
Agreements
pursuant to whichthe Tenantswill, subject to the terms of this Agreement,conducttheir
respective Tenant Events at the Stadium (commencingwith the Substantial Completionof the
Project) and the Astrodomain Complex. Landlord will provide a proposed version of any
amendmentor modification of either Lease Agreementto the Teamand Rodeoor to the Existing
RodeoLease before the execution thereof in order that the Teamand Rodeomay, as the case may
be, review the samefor inconsistencies betweenthe terms of such amendment
or modification and
the Principal Project Documents.EachTenantwill notify Landlordpromptlyif such Tenantdiscerns
any of the foregoinginconsistenciesin order to resolvesuch inconsistenciesto the satisfaction of all
Parties prior to the execution of such amendment.Noexecuted amendmentor modification to a
60
Lease Agreement-willbe valid or enforceable to the extent such amendmentor modification is
inconsistent with the rights of the other Tenantunder its respective LeaseAgreementand the other
Principal Project Documents,unless the other Tenanthas given its prior written consent thereto.
EachTenant will be furnished with a copy of any signed amendmentor modification to the other
Tenant’s respective Lease Agreementor to the Existing RodeoLease promptly after the full
executionthereof.
Section 18.4 Alcoholic BeveragePermits. If at anytime before or during the Lease Term,
a Tenant or any of its Space Tenants, concessionaires or other users of any portion of the
AstrodomainComplexare denied the issuance or renewal of any permit or license required by
applicable GovernmentalRule in order for alcoholic beverages (including wine, beer and mixed
beverages) to be sold in or uponany portion of the AstrodomainComplex
or, in the case of Team,
the Practice Facilities, for consumption
in or uponsuch areas on the basis of the proximityof such
areas to any churches,schools, day care centers or other facilities or uses, Landlordwill cooperate
with such Tenantand any of the affected SpaceTenants, concessionairesor other users of such areas
in their efforts to obtain a variance and/or exemptionfrom any GovernmentalAuthority necessary
to obtain any such permit or license for the sale of alcoholic beveragesand the Tenantin question
shall reimburse Landlord for the reasonable out-of-pocket costs and expenses incurred by it in
connectionwith the foregoing. Moreover,in general the Parties agree to coordinate and cooperate
with each other in connectionwith a Party’s efforts to secure the issuance or renewalof any permit
or license required by applicable GovernmentalRule in order for alcoholic beverages (including
wine, beer and mixedbeverages)to be sold by such Party in or uponany portion of the Astrodomain
Complex.
Section 18.5 SignagePermits. If at any time before or during the Lease Term, a Tenant
or any of its Space Tenants, concessionaires or other users of any portion of the Astrodomain
Complexare denied the issuance or renewal of any permit or license required by applicable
Governmental
Rule in order for Signageto be erected in, on or uponany portion of the Astrodomain
Complex
(to the extent such Party is permitted to erect such Signagepursuant to the terms of this
Agreement, Landlord will cooperate with Tenant and any of its Space Tenants, sponsors,
concessionairesor other users of such areas in their efforts to obtain a variance and/or exemption
from any GovernmentalAuthority necessary to obtain any such permit or license for Signage and
Tenant shall reimburseLandlordfor the reasonable out-of-pocket costs and expensesincurred by it
in connectionwith the foregoing.
Section 18.6 OlympicGames.The Parties will use reasonable efforts to accommodate
the
use of the Stadiumand any other portion of the AstrodomainComplexfor the OlympicGamesif the
sameis awardedto Houston, Harris County, Texas. The Parties agree that any use, renovation,
improvementor expansion of the Stadium or any other portion of the ComplexGroundsfor the
Olympicswill not, without the prior written consentof the Tenants, (a) unreasonablyinterfere with
the Tenants’ use of the Stadiumor any other portion of the ComplexGroundsnor conflict with the
terms of the Lease Agreements,(b) unreasonably adversely affect the marketing or use of the
Stadiumor any other portion of the Complex
Groundsfor professional football or rodeo use or their
operationstherein, (c) causethe Tenantsto hold their TenantEventsat anotherlocation nor (d) cause
the Teamor the Rodeoto relocate its businessor football operations to another location. TheParties
61
will worktogether in good faith on any scheduling matters relating to the use of the Complex
Groundsand the AstrodomainComplexfor the Olympics, including, without limitation, working
with the NFLon scheduling (but not the elimination) of Football HomeGamesso as to reasonably
accommodatethe use of the ComplexGrounds, the AstrodomainComplexand the Stadium for the
Olympics.
Section 18.7 OpeningNight Co-Promotion.The Parties shall coordinate with each other
on the planningand staging of the grand openingactivities plannedfor the Stadiumand shall, upon
terms mutuallyacceptableto the Parties, co-promoteall entertainmentactivities relating to the same.
Section 18.8 DesignatedIndex. To the extent that the DesignatedIndex referenced in the
LeaseAgreementsis ever discontinued and a comparableindex is not published by an agencyof the
United States, the Parties shall mutuallyagree on a newindex that is published in a responsible
financial periodical of recognizedauthority.
Section 18.9 Relationshipof the Parties. The relationship of the Tenants and Landlord
under this Agreementis that of independentparties, each acting in its ownbest interests, and
notwithstandinganything in this Agreementor any of the other Principal Project Documents
to the
contrary, no partnership,joint ventureor other businessrelationship is established or intendedhereby
amongthe Tenants and Landlord.
Section 18.10 Representations Regarding Individual Capacity. Each individual
executingand delivering this Agreement
on behalf of a Party herebyrepresents to the other Parties
that such individual has all requisite powerand authority to executeand deliver the sameand to bind
such Party hereunder.
Section 18.11 Waiverof Immunity.Each of the Parties unconditionally and irrevocably:
(a)
Agreesthat the execution, delivery and performanceby it of this Agreement
constitute private, proprietary, and commercialacts rather than public or governmentalacts;
(b) Agrees that should any Actions or Proceedings be brought against it or its
assets in relation to this Agreement
or any transaction contemplatedhereunder, no immunity
(sovereign or otherwise)from such Actions or Proceedings (which shall be deemed
include, without limitation, suit, attachment prior to judgment, other attachment, the
obtaining of judgment,execution or other enforcement)shall be claimed by or on behalf of
itself or withrespectto its assets;
(c)
Waivesany such right of immunity(sovereign or otherwise) whichit or
assets nowhas or mayacquire in the future; and
(d)
Consentsto the enforcementof any arbitral awardor judgmentagainst it
any suchproceedingsand to the giving of any relief or the issue of any process in connection
with any such proceedings.
62
Section 18.12 Notices. All notices, consents, directions, approvals, instructions, requests
and other communications
given to a Party under this Agreementshall be given in writing to such
Party at the address set forth in AppendixC of the respective Lease Agreementor at such other
address as such Party shall designate by written notice to the other Party to this Agreement
and may
be (a) sent by registered or certified U.S. Mailwith return receipt requested,(b) deliveredpersonally
(including delivery by private courier services) or (c) sent by telecopy (with confirmationof
notice) to the Party entitled thereto. Suchnotices shall be deemedto be duly givenor made(a) three
(3) BusinessDaysafter posting if mailed as provided, (b) whendelivered by hand unless such
is not a Business Day, in which case such delivery shall be deemedto be madeas of the next
succeedingBusinessDayor (c) in the case oftelecopy(with confirmationof such notice), whensent,
so long as it wasreceived during normalBusiness Hoursof the receiving Party on a BusinessDay
and otherwise such delivery shall be deemedto be madeas of the next succeeding Business Day.
EachParty hereto shall havethe right at any time and fromtime to time to specify additional Parties
("Additional Addressees")to whom
notice hereundermust be given, by delivering to the other Party
five (5) days notice thereof setting forth a single address for each such Additional Addressee;
provided, however,that no Party hereto shall have the right to designate morethan two (2) such
Additional Addressees.
Section 18.13 Severability. If any term or provision of this Agreement,or the application
thereof to any Person or circumstances, shall to any extent be invalid or unenforceable in any
jurisdiction, as to such jurisdiction, the remainderof this Agreement,
or the application of such term
or provision to the Personsor circumstancesother than those as to whichsuch term or provision is
held invalid or unenforceablein such jurisdiction, shall not be affected thereby, and each term and
provision of this Agreementshall be valid and enforceable to the fullest extent permitted by
applicable law and any such invalidity or unenforceabilityin any jurisdiction shall not invalidate or
render unenforceablesuch provision in any other jurisdiction. To the extent permittedby applicable
law, the Parties herebywaiveany provision of law that renders any provision thereof prohibited or
unenforceablein any respect.
Section 18.14 Entire Agreement,Amendment
and Waiver. Except for the PSLMarketing
Agreement,the PSLEscrowAgreement,the Interlocal Agreement(the latter being limited to the
relationship betweenthe Sports Authority and the Landlord)and the Parking Letter, each of which
shall survive the executionand delivery of this Agreement
in accordancewith the terms thereof, this
Agreement,together with the other applicable Principal Project Documents
constitutes the entire
agreementof the Parties hereto and thereto with respect to the subject matter hereof and supersedes
all prior written and oral agreementsand understandings with respect to such subject matter,
including, but not limited to, the Existing Letter Agreement.Neither this Agreement
nor any of the
terms hereof, including, this Section 18.14, maybe amended,supplemented,waivedor modified
orally, but only (i) by an instrumentin writing signed by the Party against whichthe enforcement
the amendment,
supplement,waiveror modification shall be sought and (ii) with the written consent
of BondInsurer, if such amendment,supplement, waiver or modification is madeor given during
the BondInsurance Period and (x) modifies any rights of any of the Parties to terminate this
Agreementbeyondwhat is expressly provided in this Agreement,(y) modifies any rights of Bond
Insurer or any obligations to BondInsurer expressly provided in this Agreement,or (z) without
limiting clauses (x) and (y), amends, supplements, waives or modifies Sections 9.3 or 9.4,
63
Sections 10.3 or 10.5, Article 11, Section 13.3, Article 14, Article 15, Article 17, Sections 18.1,
18.11, 18.13, 18.14, 18.17 or 18.20, Exhibit A or any defined terms used in or relating to such
provisions. Withrespect to any consent required under the preceding clause (z), the BondInsurer
agrees not to unreasonablywithholdits consent.
Section 18.15 Incorporation of Appendicesand Exhibits. All Appendicesand Exhibits
attached to this Agreement,and those expressly incorporated from any other agreementsuch as the
LeaseAgreements,are incorporatedherein by this reference in their entirety and madea part hereof
for all purposes.
Section 18.16 Table of Contents;Headings.Thetable of contents, if any, and headings,
if any, of the various articles, sections and other subdivisionsof this Agreement
are for convenience
of reference only and shall not modify,define or limit any of the terms or provisions hereof.
Section 18.17 Parties in Interest; Limitation on Rights of Others. The terms of this
Agreementshall be binding upon, and inure to the benefit of, the Parties and their permitted
successors and assigns. Nothingin this Agreement,whetherexpress or implied, shall be construed
to give any Person(other than the Parties and their permittedsuccessorsand assigns and as expressly
providedherein) any legal or equitable right, remedyor claim under or in respect of this Agreement
or any covenants, conditions or provisions containedherein or any standing or authority to enforce
the terms and provisions of this Agreement.Notwithstandingthe foregoing, the Countyshall be
entitled to enforce the obligations of a Tenantunder this Agreementin the event that an Event of
Default by a Tenant occurs and remains uncured and, during the BondInsurance Period, Bond
Insurer mayexercise its rights and enforce its rights and any obligations to BondInsurer expressly
providedin this Agreement
and shall also be an expressthird-party beneficiary to exercise its rights
and to enforce its rights and obligations to BondInsurer expressly providedfor in this Agreement,
including Section 18.14.
Section 18.18 Methodand Timingof Payment.All amountsrequired to be paid by any
Party to the other Party under this Agreementshall be paid in such freely transferable coin or
currencyof the UnitedStates as at the time of paymentshall be legal tender for the paymentof public
and private debts, by wire transfer, or other acceptable methodof payment,of immediatelyavailable
federal funds to the account set forth in AppendixA to the respective Lease Agreementsor to such
other accountlocated in the UnitedStates as such Party mayspecify by notice to the other Parties.
If any paymentunder this Agreementis required to be madeon a day other than a BusinessDay, the
date of paymentshall be extended to the next Business Day.
Section 18.19 Counterparts.This Agreementmaybe executed by the Parties in separate
counterparts, each of which whenso executed and delivered shall be an original, but all such
counterparts shall together constitute one and the sameAgreement.All signatures need not be on
the samecounterpart.
Section 18.20 Governing Law. THIS AGREEMENT,
ANDTHE ACTIONSOF THE
PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND
64
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS
(EXCLUDING PRINCIPLES OF CONFLICT OF LAWS).
Section 18.21 Interpretation and Reliance. Nopresumption will apply in favor of any
Party in the interpretation of this Agreement,the Lease Agreementsor any of the other Principal
Project Documents
or in the resolution of any ambiguityof any provisions thereof.
Section 18.22 Right of First Refusal. If at any time prior to December31, 2005 Landlord
and/or the ComplexManagerreceive an offer from any Personto lease or license any portion of the
ComplexGrounds, AstrodomainComplexand/or the Stadiumto a major league soccer franchise on
a seasonal basis, whichoffer the Landlordor the Complex
Manageris willing to accept (an "Offer"),
then, in such event, such parties shall first makeavailable to the Teamand/or its Affiliates
(collectively, for purposesof this Section18.22, the "Optionees"),the opportunityto lease or license
the use of the Stadiumuponthe terms containedin said Offer, plus a one-timepaymentto Landlord
in an amount equal to the sum of ONE HUNDRED
THOUSAND
ANDNO/100 DOLLARS
($100,000.00)(the "ToppingFee") payable at the sametime that the Teamor such Affiliate enters
into a bindinglease or license with Landlordfor suchpurpose,but in all cases, subject to the rights,
titles and interests of the Tenants under the Principal Project Documents.In the event that the
Landlordor the Complex
Managerreceives such an Offer, then they (as the case maybe) shall notify
the Optionees,of the existence of the Offer, the identity of the prospectivelessee or licensee under
the Offer and a description of all material terms of the Offer and, to the extent available, copies of
any proposeddocumentation
related to the Offer (the "Noticeof Offer") and the Optioneesshall have
a period of one hundredtwenty (120) days from the date of receipt by the Optioneesof the Notice
of Offer (including copies of any proposed documentationrelated to the Offer) within which
determineif the Optioneeswishto accept such opportunityto lease or license the Stadiumfor such
purposeand to so notify Landlord. Thefailure of the Optioneesto deliver notice of acceptanceof
such opportunity to Landlord within the period set forth above shall be deemeda waiver by the
Optioneesof such opportunity whereupon
Landlordshall be free to proceedwith the Offer with such
third party offeree uponthe sameterms and conditions as set forth in the Offer but in all cases,
¯ subject to the rights, titles and interests of the Tenantsunder the Principal Project Documents.
Thereafter, in the event that Landlordfails to consummate
a transaction with such third party upon
the sameterms and conditions as and within the time period for performanceset forth in the Offer
and such third party or any other third party submits an additional offer to lease or license any
portion of the ComplexGroundsfor such purpose, whetherupon the sameterms or uponterms other
than those containedin the Offer, the Landlordshall first offer to makesuch further opportunityto
lease or license the Stadiumfor professional soccer to the Optionees, uponthe sameterms and
conditions as contained in the amendedor revised Offer plus the ToppingFee for the Optionees’
reconsiderationunder the sameterms and conditions as providedfor above, but in all cases, subject
to the rights, titles and interests of the Tenantsunder the Principal Project Documents.
Section 18.23 Permitted Encumbrances.To the extent the Tenants are granted any
personal or intangible property rights from Landlordpursuant to the terms of this Agreement,such
right shall be subject to the PermittedEncumbrances,
as such term is defined in the applicable Lease
Agreement,to the extent such Permitted Encumbrances
are valid, subsisting and enforceable.
65
IN WITNESS
WHEREOF,
this Agreement has been executed by the Parties
Effective Date.
as of the
HARRIS COUNTYSPORTS &
CONVENTION CORPO TION
Name:N~O¢~.~_,[N,~-r4’d~’~_,_
Title: C_~o.(r
HOUSTONNFL HOLDINGS, L.P.
By: RCMSports & Leisure, L.P.,
Its general partner
By: Houston NFLHoldings GP, L.L.C.,
Its general partner
.y:
Robert C. McNair,President
HOUSTON LIVESTOCK SHOW AND
By: / Et’~"
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Title:
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::ODMALPCDOCS\HOUSTON
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193:18730-5
66
EXHIBIT A
ARBITRATION PROCEDURES
TheArbitration Procedures(herein so called) to be used in connectionwith any Dispute
Controversyunder this Agreementshall be those Arbitration Procedures set out and described on
AppendixD to the TeamLease or the RodeoLease, as applicable, as if such Arbitration Procedures
appliedto all Parties.
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EXISTING RODEOLEASE
1.
Memorandum
of Agreement dated March 5, 1964 by and between the Houston Sports
Association, Inc., a Texascorporation ("HSA")and Rodeo,joined in by County,a certified
copy of said instrument being filed for record on November
10, 1992, under Clerk’s File
No. N950789,Real Property Records of Harris County, Texas.
2.
Supplement to Memorandum
of Agreementdated April 13, 1964 by and between HSAand
County, joined in by Rodeo,a certified copy of said instrument being filed for record on
November
10, 1992, under Clerk’s File No. 950790,Real Property Recordsof Harris County,
Texas.
3.
Letter Agreementby and between HSAand Rodeo dated August 17, 1967.
4.
Letter Agreementbetween HSAand Rodeodated February 13, 1969.
5.
Letter AgreementbetweenAstrodome-AstrohallStadium Corporation, a Texas corporation
and successor in interest to HSA("AASC")and Rodeodated April 10, 1974.
6.
Commissioners Court Order Relating to Various Facilities at Stadium Park dated
November14, 1974, a certified copy of said instrument being filed for record on
November
10, 1992, under Clerk’s File No. N950791of the Real Property Recordsof Harris
County, Texas.
7.
Second Supplement to Memorandumof Agreement dated November 14, 1974 by and
betweenAASC
and Rodeo,joined in by the County,a certified copy of said instrument being
filed for record on November10, 1992, under Clerk’s File No. N950791,Real Property
Records of Harris County, Texas.
8.
Third Supplement to Memorandum
of Agreementdated November14, 1974 by and between
AASC
and Rodeo,joined in by the County, a certified copy of said instrument being filed
for record on November
10, 1992, under Clerk’s File Nos. N950791and N950792of the Real
Property Records of Harris County, Texas.
9.
Letter Agreementbetween HSAand Rodeodated January 19, 1981.
10.
Letter Agreementbetween Rodeoand the County dated December5, 1988.
11.
Agreementby and between the County and Rodeodated February 14, 1989.
12.
Agreementby and between the County and Rodeodated November21, 1989.
13.
Agreementby and between Rodeo and HSAdated July 16, 1992.
14.
Letter Agreement by and between Rodeo and Houston McLaneCompany,Inc., a Texas
corporation ("McLane")dated March6, 1996.
15.
Third Amendment
to Restated Lease and Amendments
by and amongthe County, Astrodome
U.S.A., a division of McLaneand a Texas corporation ("AUSA"),HSA,AASC
and Rodeo
dated May7, 1996, said instrument being filed for record on May16, 1996, under Clerk’s
File No. R928153of the Real Property Records of Harris County, Texas..
16.
Agreementby and between Rodeo and McLaned/b/a AUSAdated October 8, 1996.
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EXHIBIT L
ASTRODOMAIN JOINT
1.
MARKETING TERMS AND CONDITIONS
Definitions.
(a)
"Excluded Marketing Rights" means (i) JMATemporary Advertising and JMA
TemporarySignageduring an Event, (ii) fights to the Astrodome,ExpositionCenter,
or Astroarena to the extent there is a NewUse of the entirety of any such Other
Building (except the JMANamingRights related to the Exposition Center and the
other JMARights related to the presence of the holder of such JMANamingRights
granted by the Tenantsto such holder as described on Schedule1 hereto shall not be
an ExcludedMarketingRight), (iii) rights to any major addition to or expansion
the ExpositionCenter to the extent there is a NewUseof any such majoraddition to
or expansionof the ExpositionCenter, (iv) rights to newbuildings constructedat the
ComplexGrounds(except for a newbuilding to replace the Stadiumand except as
to the Astroarenaand the ExpositionCenter, newbuildings constructed to replace the
Astroarena or the Exposition Center that do not constitute a NewUse), and
(v) marketing for a category that is withdrawn by Landlord as set forth
Paragraph11 hereof.
(b)
"Exposition Center" meansthe exposition hall currently knownas "The I-:Iarris
CountyExposition Center" whichis currently under construction by Landlordwithin
the AstrodomainComplexand which will replace the Astrohall.
(c)
"JMAAdvertising" means,collectively, all advertising, sponsorshipand promotional
activity, JMASignage, messagesand displays of every kind and nature, whethernow
existing or developed in the future, including, without limitation, permanent,
non-permanentand transitory JMASignage or advertising displayed on permanent
or non-permanent
advertising panels or on structures, portions of the Joint Marketing
Area, fixtures or equipment(such as scoreboardadvertising and canopyadvertising);
audio or video public address advertising and messageboard advertising; programs;
electronic insertion and other formsof virtual signage;advertising on or in schedules,
admissiontickets and yearbooks;all other print and display advertising; promotional
events sponsored by advertisers; advertising display items worn or carried by
concessionaires or personnel (such as ushers and ticketakers) engaged in the
operation of any Event; and logos, slogans or other formsof advertising affixed to
or included with such items including but not limited to: cups, hats, T-shirts;
advertising of concessions(including menuboards and point of purchaseconcession
advertising within the Joint MarketingArea); advertising through JMABroadcast
Rights; advertising through JMATelecommunicationsRights; advertising through
any website or equivalent electronic informationdistribution system maintainedby
or on behalf of Landlordwith respect to all or any part of the Joint MarketingArea;
and other concession, promotional or premium items, excluding JMANaming
Rights, BrandingRights, Service Rights and Pourage Rights.
(d)
"JMABroadcastRights" meansany and all of the rights to the full and exclusive use
and enjoymentof, and to control, conduct, lease, license, grant concessions with
respect to, sell, benefit, and enter into agreementswith respect to, all radio,
television, computer network and other electronic broadcasting, film or tape
reproductions,closedcircuit, cable or pay television or radio rights and similar rights
by whatevermeansor process, nowexisting or hereafter developed, for preserving,
transmitting, disseminating or reproducingfor hearing or viewingLandlordEvents
and/or other Landlordactivities at the Joint MarketingArea, including broadcast
(analog, digital or HDTV),terrestrial cable, microwave,multipoint distribution
services (MDS),multichannel MDS(MMDS),satellite television systems (STV)
satellite master antenna televisions systems (SMATV),
fiber optic, the WorldWide
Web,Internet, computernetwork, computeron-line applications, direct broadcast
satellite (DBS), LMDS,Narrowand BroadbandServices, transmission directly
so-called "backyard"TVRO
receiving dishes, any video dialtone system, open video
system (OVS),DPS,Pay-Per-View,radio, and by meansof any similar or dissimilar
electronic, analog, digital or other formof distribution meansnowknownor hereafter
invented.
(e)
"JMAMarketingTurnoverDate" shall have the meaninggiven to it in Paragraph 8.
(f)
"JMANamingRights" means the right to assign and designate the names,
trademarks, service marks, logos, symbols, slogans, designs or other meansof
identification for the Joint MarketingArea except for the Stadiumand the Highly
Restricted Area, which rights have been granted to the Tenants elsewhere in the
Principal Project Documents(the "JMANames");give or designate attributions for
the Joint MarketingArea except for the Stadiumand the Highly Restricted Area;
display the JMANamesand designations on or from the Joint MarketingArea; use,
mark and associate the JMANameswith merchandise and services; from time to
time to changethe JMANamesor designations; and contract from time to time with
a Person or Persons on such terms as Tenantsdetermine with respect to the naming
of the Joint MarketingArea except for the Stadiumand the Highly Restricted Area.
(g) "JMARights" shall have the meaning given in Paragraph 2 hereof.
(h)
"JMASignage" meansall signage and any and all other media(whether nowexisting
or developedin the future) used for JMAAdvertising or marketingpurposes in the
Joint MarketingArea and/or the Marquees,including, but not limited to, any such
signage or other JMAAdvertising medialocated in or on the Joint MarketingArea,
the scoreboard, the video boards (including "JumboTron"-typescreens), JM_A
Advertising signs, banners or displays, time clocks, messageboards, billboards,
public address announcements, and any other media (whether nowexisting or
2
developedin the future) located in, on or upon the Joint MarketingArea and the
Marqueesthrough which a Person holding rights pursuant to an agreement with
another advertises or markets or mayadvertise or market any products, services,
events or any other items.
(i)
"JMASponsors"shall have the meaninggiven to "Sponsors", except that references
to Signageand Advertising shall be replaced by references to JMASignageand JMA
Advertising.
(j)
"JMATelecommunications
Products or Services" meanslocal and long-distance land
line and wireless telephoneservices, yellowpages and directory services (including
on-line and Internet based), networkintegration, inside wiring and cabling, fiber
deployment,basic networkinfrastructure, public communications,pay telephones,
calling cards (including prepaid), voice mail, Internet services, programming,
transmission of voice and data, interactive communications,virtual reality or
enhancementsof the same, land line and wireless video and data services, cable and
wireless television services, paging services, homesecurity services and
telecommunications
equipmentand any other similar or related products or services.
(k)
"JMATelecommunications
Rights" meansany and all of the rights to the full use and
enjoymentof, and to control, provide, conduct,lease, license, grant concessionswith
respect to and contract for, JMATelecommunications
Products or Services to or for
the Joint MarketingArea, including the right to sell or license the right to provide
JMATelecommunicationsProducts or Services on an exclusive or nonexclusive
basis.
(1)
"JMATemporaryAdvertising" meansJMAAdvertising in or on the Joint Marketing
Area in connection with any Event which is to be removedor terminated at the
conclusion of such Event.
(m)
"JMATemporarySignage" means JMASignage in or on the Joint Marketing Area
in connection with any Event which is not permanentlyaffixed and which will be
removedor terminatedat the conclusionof such Event, including, withoutlimitation,
video commercialsand other electronic display recognition, sponsoredvignettes or
kiosks, temporary banners, stage signage, chuckwagonsigns, blimp signs and JMA
Signageon Eventparticipants.
(n)
"Joint Marketing Area" means the Astrodomain Complex(which includes the
Stadium and the Other Buildings) and the ComplexGrounds.
(o)
"MarketingContracts" shall have the meaninggiven in Paragraph2 hereof.
(p) "New Use" means:
2.
(i)-
as to the Astrodome,its replacement,material renovationor expansionfor the
purpose of (i) changingits primary use to a use other than as a spectator
facility or (ii) allowinga newprimarytenant whowill not use the Astrodome
as a spectatorfacility;
(ii)
as to the Astroarena,its replacement,material renovation or expansion(but
not any replacement, renovation or expansionmadeby or for the benefit of
the Rodeo)for the purposeof changingits primaryuse to a use that does not
include (A) a use by the Rodeoas a venuefor commercialexhibits, horse
livestock exhibitions or livestock or horse auctions, (B) concerts for up
10,000spectators or (C) exhibitions, expositions, trade showsand similar
types of events for a capacity no greater than the current capacity of the
Astroarenaas of the Effective Date; or
(iii)
as to the ExpositionCenter, (i) any replacementor material renovation (but
not a major addition or expansion)for the purpose of changingits primary
use to a use that does not include a use by the Rodeoor other Persons as a
venuefor exhibitions, trade showsor similar types of events, or (ii) any major
addition to or expansionof the ExpositionCenterthat is in the nature of an
extensionto or a newsection of the ExpositionCenterfor a primaryuse that
does not include a use by the Rodeo or other Persons as a venue for
exhibitions, expositions, trade showsor similar types of events, such as, but
not limited to, an arena (other than a replacementof the Astroarena that
includes one of the uses listed in clauses (A) (B) or (C) of subparagraph
above), a shoppingmall or a theater but only with respect to such addition or
expansion.
Landlordhereby grants to the Tenants on an exclusive basis the right to jointly market,
negotiate and enter into agreements("MarketingContracts") coveringand licensing all JMA
NamingRights, Branding Rights, Pourage Rights, Service Rights, JMASignage, JMA
Advertising, JMASponsorsand other marketingrights to the Joint MarketingArea (except
for the ExcludedMarketingRights), that are not otherwisegrantedto, or retained by, Tenants
pursuant to the other Principal Project Documents
(collectively, the "JMARights"), or, as
necessary, to exercise those JMARights themselves; provided, however,that the Marketing
Contracts covering and licensing the BrandingRights, PourageRights and Service Rights
or the Tenants’ use of the JMARights shall not be structured by the Tenants so as to
negatively impactin any material respect the operating costs of the Joint MarketingArea,
Landlord’sability to meetits maintenanceand operating standardsunder the Principal Project
Documentsor the quality of services provided at the Joint MarketingArea. In addition,
Landlordherebygrants to the Tenantson an exclusive basis the right to jointly bind Landlord
to comply with the terms of such Marketing Contracts, provided that such Marketing
Contractsshall complywith the proviso in the precedingsentence, and providedfurther that
the operational aspects of such MarketingContracts are dealt with as set forth in Paragraph
3 hereof.
4
3.
Landlordwill enter into, on its ownbehalf, and performon its behalf and on behalf of the
Tenantsall operating agreementsassociated with any MarketingContracts (i.e. service and
fulfillment), all at Landlord’ssole cost and expense.
4.
The Parties have agreed that the JMANamingRights category of JMARights is fixed at the
annual rate of $750,000 for the period commencingthe day after the JMAMarketing
TurnoverDate and endingon the expiration of the TeamLease, subject to Paragraph9(b) and
Paragraph15 hereof.
5.
The Parties have agreed on the annual minimumrates set forth below for payments to
Landlordunder MarketingContracts with respect to each of the followingcategories of JMA
Rights, howsoeverallocated amongthe various componentsof JMARights:
Rate
$300,000
$400,000
$425,000
$125,000
Category_
Technology
Energy
Telecommunications
Beverages
All other categories,
in the aggregate
$400,000
6.
Landlord shall have the right to disapprove a Marketing Contract that is otherwise in
compliancewith Paragraph2 hereof only if it proposesthe sale of a category of JMARights
for an amountthat is less than the annual minimum
rate set forth in Paragraph5 hereof for
that category. Subject to Paragraphs 9(c) and 9(d) hereof, the Tenants shall have
obligation to makeany paymentto Landlord for any category of JMARights unless the
Tenants enter into a MarketingContract covering such category of JMARights.
7.
The Parties will mutually agree on the amountand nature ofJMASignagein, on or at the
Other Buildings and the Joint Marketing Area granted pursuant to MarketingContracts.
Landlordwill bear the cost of construction, installation and maintenanceof such agreed-upon
JMASignage. TheParties will mutuallyagree on the rates for all JMASignagein, on or at
the Other Buildings and the Joint MarketingArea granted pursuant to MarketingContracts.
8.
Notwithstandinganythingin the Principal Project Documents
to the contrary, Landlordshall
retain the rights to marketand sell or license all BrandingRights, PourageRights, Service
Rights, JMASignage, JMAAdvertising, JMASponsor and other marketing rights (but not
JMANamingRights)included in the JMARights, and retain all revenues therefrom, through
the later of July 31, 2002and the date immediatelypreceding the Substantial Completion
Date (such later date being the "JMAMarketingTurnoverDate"); provided, however, all
contracts entered into by Landlordgranting such rights shall terminate on or before the JMA
Marketing Turnover Date.
5
9.
(a)
TheTenantsshall collect all gross revenuesderived from the MarketingContracts,
except as provided in Paragraph8.
(b)
TheTenantsshall have the right to sell and license the JMANamingRights as of the
Effective Date. The Tenants shall pay Landlord an aggregate amountof $500,000
for the MarketingContract covering the JMANamingRights category for the period
commencingwith the Effective Date through the JMAMarketing Turnover Date,
such amountto be paid in a lumpsumnot later than 90 days after the execution of
the Marketing Contract covering the JMANamingRights.
(c)
For the period beginning the day after the JMAMarketing Turnover Date, the
Tenants shall pay Landlordfor the JMARights the following percentages of annual
net revenues from JMARights (annual gross revenues from MarketingContracts less
commissionspaid to third parties and agencyfees), except that the amountpaid to
Landlordfor the JMANamingRights category of JMARights shall be limited to the
fixed annual rate of $750,000as specified in Paragraph4:
100%of annual net revenues up to $1,000,000;
75%of annual net revenues in excess of $1,000,000and up to
$3,000,000; and
(iii) 65%of annual net revenues in excess of $3,000,000;
(i)
(ii)
provided, however,that in no event shall the amountowedto the Landlordfor any
12-monthperiod under this Paragraph9(c) be less than $750,000.Eachof the levels
set forth in subsections(i) through(iii) aboveis a "breakpoint"and, collectively,
are "breakpoints". TheTenants agree to use their goodfaith reasonable efforts to
enter into MarketingContracts that are net of third party commissionsand agency
fees.
(d)
10.
Paymentsowedby the Tenants to Landlord as provided under Paragraph9(c) above
shall be required to be madeonly after gross revenuesare collected and net revenues
are determined by the Tenants; provided, however, the Tenants shall makesuch
paymentsto the Landlord as soon as commerciallypracticable after revenues are
received by the Tenants.
TheTenantsshall use goodfaith reasonable efforts to license the categories of JMARights
(together with the similar rights granted to Tenants elsewhere in the Principal Project
Documents)for the entire Joint MarketingArea. Nevertheless, the Tenants shall have the
right to "break up" the Joint MarketingAreato license one or morecategories of JMARights
on less than a Joint MarketingArea-widebasis (or without the similar rights granted to
Tenants elsewherein the Principal Project Documents)if the Tenants are able to maximize
the value for a category by doing so; provided, however,that the Tenantsmaynot "break up"
(i) the right to provide(whetheror not a Service Right) networkintegration, inside wiring
and cabling, fiber deployment,basic network infrastructure, public communications,pay
6
telephones, and related telecommunicationsequipmentfor the entire Joint MarketingArea
or (ii) ServiceRights to providechilled water, electric and natural gas service to the entire
Joint MarketingArea. In the event the Tenants "break up" the Joint MarketingArea for a
particular category of JMARights, the Marketing Contracts for such category will
nevertheless provide for the annual minimum
rate for such category that is set forth above,
unless the Landlordagrees otherwise. Notwithstandingsuch right of the Tenants to "break
up" the Joint MarketingArea for a particular category of JMARights, the Tenantsshall use
their goodfaith reasonableefforts to license all suchJMARightsat prices that are reflective
of the market value of such JMARights.
11.
If the Landlorddeterminesthat it is in the best interest of the Landlordfor the Landlordto
sell or license on its ownone or moreof the categories of JMARights, the Landlordshall
have the right, subject to a mutuallyagreeable procedureestablished by the Parties and the
obligations of the Parties under then existing MarketingContracts, to "take back" such JMA
Rights, but not the JMANamingRights or the Telecommunicationsor Energycategories of
JMARights. In the event the Landlordexercises such right, the "breakpoints" set forth in
Paragraph 9(c) hereof for paymentsowedto the Landlord shall be reduced by the annual
minimumrate for the category of JMARights which the Landlord "takes back".
Notwithstandingsuch right of the Landlord to "take back" one or morecategories of JMA
Rights, the Landlordshall use its goodfaith reasonableefforts to sell or license such rights
in a mannerthat will allow the Tenantsto license the remainingJMARights and the Service
Rights and related BrandingRights granted to, or retained by, the Tenantselsewherein the
Principal Project Documentsin, on or at the AstrodomainComplexand ComplexGrounds
at prices that are reflective of the market value of such remaining JMARights and the
Service Rights and related BrandingRights.
12.
The Tenants agree that nothing herein will waive or limit in any way the rights and
obligations of the Parties under the Principal Project Documentsrelated to Ambush
Marketingand Party AmbushMarketingor rights not included in the JMARights. In this
regard, the Landlordagrees with respect to any LandlordEvent and the Tenants agree with
respect to each of their respective Tenant Events that JMATemporaryAdvertising and JMA
TemporarySignagewill not be in conflict with (i) the JMARights or the similar rights
grantedto, or retained by, the Tenantsunderthe other Principal Project Documents
or (ii) the
provisions of Section 5.8 of the Stadium Tri-Party Agreement; provided, however,
advertising in Eventprogramsshall not be deemeda violation of Exclusivity Rights.
13.
At such times during the Termas any MarketingContract expires or is renegotiated by the
Tenants, the Landlordshall have the right to reset the annual rate assigned under Paragraph
5 above to the category of JMARights to which such MarketingContract applies, subject
to the approvalof the Tenants.
14.
If a newbuilding (other than the Stadiumor the Exposition Center) is constructed at the
Complex
Grounds,the Tenantsshall have a right of first offer to purchasethe JMARights
therefor not otherwisegranted to Tenantshereunder. If there is a NewUseof the Astrodome
7
or the Astroarenaor a NewUseof the Exposition Center as a result of any major addition
to or expansionof the Exposition Center, the Tenants shall have a right of first offer to
purchasethe JMARights therefor not otherwise granted to Tenantshereunder. If there is a
NewUse of the entirety of Exposition Center as a result of a replacement or material
renovation of the Exposition Center (but not a major addition or expansion), the Tenants
shall continue to have the JMANamingRights and other JMARights to the Exposition
Center that are not ExcludedMarketingRights and shall have a right of first offer to
purchase other JMARights therefor not otherwise granted to Tenants hereunder. If the
primary use of the entirety of Stadiumchanges, on a permanentbasis, the Tenants shall
continue to have all of the JMARights therefor.
15.
The fixed annual rate for the JMANamingRights specified in Paragraph4 above has been
established based on the assumption that the Stadium, the Exposition Center and the
Astroarena will continue in existence during the Term,that the Tenants will retain the
JMANamingRights for the Stadium, notwithstanding a change of its primary use, on a
permanentbasis, and the Exposition Center, notwithstanding a NewUseof the Exposition
Center as a result of a replacementor material renovation thereof(but not a majoraddition
or expansion),and that there will be no NewUseof the Astroarena.In the event that (i)
Stadiumis closed or demolishedand not replaced or the primaryuse of the Stadiumchanges,
on a permanentbasis, or (ii) the ExpositionCenter is closed or demolishedand not replaced,
or (iii) the Astroarenais closed or demolishedand not replaced, or (iv) there is a New
of the ExpositionCenteras a result of a replacementor material renovationof the Exposition
Center (but not a majoraddition or expansion), or (v) there is a NewUseof the Astroarena
or the Astroarenais closed or demolishedand replacedwith a facility that constitutes a New
Use, then the fixed annual rate for the JMANamingRights will be subject to renegotiation
by the Parties as to suchfacility or the applicableportionthereof. In the eventthat any of the
Stadium,the Exposition Center or the Astroarenais closed or demolishedand with respect
to the Stadium, replaced with a newfacility that does not changethe primary use of the
Stadium,on a permanentbasis, and with respect to the ExpositionCenter or the Astroarena,
replacedwith a facility that doesnot constitute a NewUse, then the fixed annualrate for the
JMANamingRights will not be subject to renegotiation by the Parties.
16.
The annual minimum
rates for the categories of JMARights specified in Paragraph5 above
and the breakpoints set forth in Paragraph9(c) above have been established based on the
assumptionthat the Stadium, the Exposition Center and the Astroarena will continue in
existence during the Term,that the Tenantswill retain such other categories of JMARights
for the Stadium,notwithstandinga changein its primaryuse, and that there will be no New
Useof the ExpositionCenter or the Astroarena.In the event that (i) the Stadiumis closed
or demolishedand not replaced or the primary use of the Stadiumchanges, on a permanent
basis, or (ii) the ExpositionCenter is closed or demolishedand not replaced or there is
NewUseof the ExpositionCenter as a result of a replacementor material renovation thereof
(but not a majoraddition or expansion),or (iii) the Astroarenais closed or demolished
not replaced, there is a NewUseof the Astroarenaor the Astroarenais closed or demolished
and replaced with a facility that constitutes a NewUse, then the annual minimum
rates for
8
Schedule 1
JMANamingRights and other JMARights
as to Exposition Center
JMANaming Rights
1.
Designation of the Exposition Center identification, including without limitation, the
Exposition Center name, Exposition Center logo and Exposition Center marks.
2.
Exterior Signagedisplaying the Exposition Center logo and/or Exposition Center markson
the exterior of the ExpositionCenter as agreedby the Parties.
3.
Integration of the Exposition Center marksin a prominentmannerinto exterior directional
and customer service Signage on and around the Exposition Center and on the Exposition
Centerentry gates.
4.
Exposition Center logo placementon the roof of the Exposition Center.
5.
ExpositionCentermarkplacementat each of the exterior entrances to the ExpositionCenter.
6.
ExpositionCentermarkplacementat each of the interior entrances of the ExpositionCenter.
7.
Exposition Center markplacement in each meeting roomwithin the Exposition Center.
8.
Exposition Center logo and Exposition Center marks incorporated into each and every web
site, if any, developed or used to promotethe Exposition Center or events held at the
Exposition Center.
9.
Additional interior Signagedisplaying the Exposition Center markswithin the Exposition
Center as agreedto by the namingrights holder and the Parties.
10.
Placement of Exposition Center nameand/or Exposition Center marks on uniforms and
badges wornby ushers, parking attendants, ticket takers, concessionaires, guest relations
employees,and security and maintenancepersonnel.
11.
Placement of Exposition Center nameand Exposition Center marks on all cups, napkins,
food wrappers, food trays, and other general concessionitems whichare dispensed for use
exclusively within the AstrodomainComplexor an AstrodomainComplexfacility.
12.
Placement of the Exposition Center name and Exposition Center marks on all printed
materials used in connectionwith the promotionand/or operation of the Exposition Center
(such as letterhead, stationery, business cards, brochures, promotionalitems, marketing
materials, event schedules,public relations and official statements,including mediareleases,
issued by the Tenants).
13.
Theright to haveany vendorselling hats, T-shirts or other merchandiseexclusively within
the ExpositionCenter to offer for sale, in addition to any other merchandiseoffered, hats,
T-shirts or other merchandisethat prominently bears the Exposition Center nameand/or
Exposition Center marksl
14.
Right to require all persons involved in promoting,publicizing or reporting events at the
AstrodomainComplexor at an AstrodomainComplexfacility to committo refer to and
identify the Exposition Center only by the Exposition Center name, including having the
Tenantsrefer to the nameand placing the condition of the use of the namein agreementsand
conditioningthe granting of mediapasses on its use.
Other JMARights
1.
Adesignated area between3,600 and 5,000 square feet in size, agreed uponby the Parties,
within the Exposition Center whichprovides the namingrights holder a prominentpresence
and exhibit space (the "ExpositionCenter Entitlement Zone"). Thenamingrights holder may
use the ExpositionCenter Entitlement Zone,subject to the Parties’ approval, as an exhibit
area to portray key business initiatives of the namingrights holder in a captivating,
interactive manner.
2.
Placementof interactive kiosk units at or in the Exposition Center, at the namingrights
holder’s expense,subject to the agreementof the Parties.
3.
Such additional optional modifications or elements to ensure the namingrights holder’s
"presence"at the ExpositionCenteras are agreeduponby the Parties, such as, but not limited
to, engrainedor wovenmarksof the namingrights holder or the ExpositionCenter marksin
carpetingand flooring in public areas, wall coveringsand muralsin public areas, flowerbeds
or on golf carts.
2
EXHIBIT M
SUITE USAGE RULES
CONDITIONS TO LICENSING AND USE OF SUITES BY LANDLORD
Thefollowingare conditions to the licensing or use of the Suites by Landlordor any licensee
of Landlord:
1.
Repairs. Prior to and followingeach use of a Suite by Landlordor a licensee thereof,
Landlord,Teamand Rodeorepresentatives will conducta walk-throughof such Suite to inspect for,
and record in writing, any repairs and replacements, including each Suite licensee’s personal
belongings, neededto put such Suite back in the samegoodorder and condition, ordinary wear and
tear excepted.Prior to the next Eventat whichsuchSuite is to be used, Landlordat its sole expense
and not using funds of the Capital Repair Reserve Fund, shall complete such repairs to the
satisfaction of the Teamand the Rodeo.
2.
Indemnity_and Release. Landlord and Landlord’s licensee must agree in writing to
indemnify,defend, hold harmlessand release the Teamand the Rodeo,and their respective licensees,
and such licensees’ guests and invitees, fromand against any liability, loss, claim, demand,cost and
expense (including, without limitation, reasonable attorney’s fees and expenses) arising from
Landlord’sor Landlord’slicensees’, or any of their respectiveguests’ or invitees’, use of a Suite.
3.
Insurance. TheTeamand the Rodeo,and their respective licensees of the Suites (as
a general category of users, not a specific category) must be namedas additional insureds on the
Stadiummanager’sand Eventsponsor’s liability policies.
4.
Concessions.Landlordor its licensee shall be liable for and pay for the cost of all
food and beverages ordered and/or consumedin any Suite in accordance with the cost thereof
established, from time to time, by the Concessionairetherefor.
5.
TeamOwner’sSuite. The Team"Owner’s Suite" shall not be licensed, used or
occupied by Landlordunder any circumstances whatsoever. The Teamshall pay for any tickets if
the Suite is used for another event at the sameprice as set for other suite tickets for such other
events.
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EXHIBIT P
MBIA CONFIDENTIALITY LETTER
[Date]
MBIAInsurance Corporation
113 King Street
Armonk, NY 10504
HARRIS COUNTY-HOUSTONSPORTS AUTHORITY
SENIOR LIEN REVENUEREFUNDINGBONDS,
SERIES 2001A
JUNIOR LIEN REVENUEREFUNDINGBONDS,
SERIES 2001B
JUNIOR LIEN SPECIAL REVENUEBONDS,
SERIES 2001C (RODEOPROJECT) (VARIABLERATE)
JUNIOR LIEN SPECIAL REVENUEBONDS,
SERIES 2001D (NFL CLUBPROJECT) (VARIABLERATE)
TAXABLEJUNIOR LIEN SPECIAL REVENUEBONDS,
SERIES 2001E (NFL CLUBPROJECT) (VARIABLERATE)
Dear [
]:
Enclosed is the [Nameof Document/Documents]
(the "Material") you requested to review
in connectionwith your surveillance responsibilities for the above-referencedBonds.
Youagree that you will protect the Material from disclosure to anyoneother than you and
your employees.Youwill not duplicate or distribute the Material to anyoneother than [
]
without prior authorization from [Team/Rodeo].
Youagree that you will deliver to the [Team/Rodeo]
all Material with [60 days] of receipt
thereof or such longer time as agreed to by you and [TeamfRodeo].
Please acknowledgeyour receipt of the Material and your agreementwith the foregoing by
signing belowand returning one copy of this letter to me.
Verytruly yours,
Team/Rodeo
MBIAInsurance Corporation
By: