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Management Agreement with Live Nation Worldwide, Inc.a~v7 ~~s~8 MANAGEMENT AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND LIVE NATION WORLDWIDE, INC. FOR THE JACHIE GLEASON THEATER OF THE PERFORMING ARTS TABLE OF CONTENTS Page 1. Definitions .......................................................................................................................... 1 2. Engagement of Live Nation; Scope of Services ................................................................. 5 2.1 Engagement .......................................................................................................... ..5 2.2 Scope of Services ................................................................................................. .. 5 2.3 Specific Services .................................................................................................. .. 7 2.4 City and Charitable Use of Facility and Ticket Programs ................................... 10 2.5 Rights Reserved to City ....................................................................................... 16 3. Term and Renewal Term .................................................................................................. 18 3.1 Term ..................................................................................................................... 18 3.2 Renewal Option .................................................................................................... 18 3.3 Live Nation's Early Termination ......................................................................... 19 4. Live Nation's Compensation; City Distributions ............................................................. 20 4.1 Management Fee .................................................................................................. 20 4.2 Required City Distribution ................................................................................... 20 4.3 Excess City Distribution ...................................................................................... 21 5. Funding; Budgets; Bank Accounts; Alterations ............................................................... 22 5.1 Live Nation Funding Guaranty ............................................................................ 22 5.2 Non-Funding by City ........................................................................................... 22 5.3 Receipts and Disbursements ................................................................................ 23 5.4 Alterations ............................................................................................................ 23 6. Records, Audits and Reports ............................................................................................ 25 6.1 Records and Audits .............................................................................................. 25 6.2 Annual Plan .......................................................................................................... 26 7. Employees ........................................................................................................................ 26 7.1 Live Nation Employees .........................:.............................................................. 26. 7.2 No Solicitation or Employment by City ............................................................... 27 8. Indemnification and Insurance ......................................................................................... 27 8.1 Indemnification .................................................................................................... 27 8.2 Liability Insurance ............................................................................................... 27 8.3 Worker's Compensation Insurance ...................................................................... 28 8.4 Property Insurance ............................................................................................... 28 8.5 General Requirements .......................................................................................... 29 8.6 Certain Other Insurance ....................................................................................... 29 9. Ownership of Assets ......................................................................................................... 29 9.1 Ownership ............................................................................................................ 29 9.2 City Obligations ................................................................................................... 30 10. Assignment; Affiliates .................................................................................................. .... 30 10.1 Assignment ........................................................................................................... 30 10.2 Live Nation Affiliates .......................................................................................... ,, . 32 (i) TABLE OF CONTENTS (continued) Page 11. Laws and Permits ............................................................................................................. 33 11.1 Permits, Licenses, Taxes and Liens ..................................................................... 33 11.2 Governmental Compliance ................................................................................... 33 11.3 No Discrimination in Employment; Affirmative Action ..................................... 33 12. Event of Default and Remedies ........................................................................................ 34 12.1 Live Nation's Defaults ......................................................................................... 34 12.2 City's Remedies ................................................................................................... 34 12.3 City's Defaults ..................................................................................................... 35 12.4 Live Nation's Remedies ....................................................................................... 35 12.5 Late Payments ...................................................................................................... 36 13. Termination ...................................................................................................................... 36 13.1 Effect of Termination ........................................................................................... 36 13.2 Surrender of Premises .......................................................................................... 36 14. Net Worth Requirement; Security .................................................................................... 36 14.1. Net Worth Requirement ....................................................................................... 36 14.2. Security ................................................................................................................ 37 15. Miscellaneous .................................................................... . 38 ................... ........................... 15.1 Venue/Waiver of Jury Trial ................................................................................. 38 15.2 No Partnership or Joint Venture ........................................................................... 38 15.3 Entire Agreement .................................................. .. 38 . ............................................ 15.4 Written Amendments ................................................ . 38 . ......................................... 15.5 Force Majeure ...................................................................................................... 39 15.6 Binding Upon Successors and Assigns; No Third Party Beneficiaries ................ 39 15.7 Notices .................................................................................................................. 40 15.8 Section Headings and Defined Terms .................................................................. 40 15.9 Severability .......................................................................................................... 41 15.10 Non-Waiver .......................................................................................................... 41 15.11 Certain Representations and Warranties .............................................................. 41 15.12 Governing Law ..................................................................................................... 41 EXHIBITS EXHIBIT A - LEGAL DESCRIPTION OF THE FACILITY EXHIBIT B - CITY WORK EXHIBIT C - UPGRADES TO BE MADE BY LNE NATION EXHIBIT D - MINIMUM OPERATING AND MAINTENANCE STANDARDS EXHIBIT E - LIST OF CITY AGREEMENTS EXHIBIT F - PENDING BOOKINGS EXHIBIT G - APPROVED SPONSORS EXHIBIT H - STANDARD RENTAL AGREEMENT -THIRD PARTY USE EXHIBIT H-1 - STANDARD RENTAL AGREEMENT -CITY USE (ii) MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT (this "Agreement") is dated as of the ;day of Su ry~ , 2007 ("Effective Date"), by and between the CITY OF MIAMI BEACH, a municipal corporation organized and existing under the laws of the State of Florida, and having its principal office at City Hall, 1700 Convention Center Drive, Miami Beach, Florida 33139 (the "City"), and LIVE NATION WORLDWIDE, INC., a Delaware corporation, whose address is 9348 Civic Center Drive, Beverly Hills, California 90210 ("Live Nation"). BACKGROUND City is the owner of the Jackie Gleason Theater of the Performing Arts, as more particularly described and depicted on Exhibit "A" attached hereto and made a part hereof (the "Facility"), located in the City of Miami Beach, Florida. Live Nation is engaged in the business of operating, maintaining, managing and booking live entertainment facilities, including operations and marketing services for such facilities. City desires to engage Live Nation, and Live Nation desires to accept the engagement, to provide management services for the Facility on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual premises, covenants and agreements herein contained, the parties hereto, intending to be legally bound, agree as follows: 1. Definitions. For purposes of this Agreement, the following terms have the meanings referred to in this Section 1: "Affiliates " -- an entity that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, a specified entity. For purposes of this definition, "control" means ownership of equity securities or other ownership interests which represent more than 51 % of the voting power in the controlled entity. "City" -- as defined in this first paragraph of this Agreement. "City Commission" -- the governing and legislative body of the City. "City Agreements" -- those existing agreements between the City and a third party relating to the Facility that are listed on Exhibit "E." "City Manager" -- the chief executive officer of the City or such person as may from time to time be authorized in writing by such administrative official to act for him/her with respect to any or all matters pertaining to this Agreement. "City Work" -- the work to be performed by City at its sole cost and expense described in Exhibit "B" hereto, which City Work will be performed by City in accordance with Section 5.4(b)(ii). A "Commencement Date" -- as defined in Section 3.1. "Event" -- all uses which involve a scheduled beginning and ending time, typically all within the same day (or for evening Events, typically commencing in the evening and concluding before 1:00 a.m. of the succeeding day unless otherwise approved in writing by City Manager). With respect to a "Run" (as such term is hereafter defined), each show within the Run shall constitute an Event. "Event Expenses" -- any and all expenses incurred or payments made by Live Nation in connection with the occurrence of an Event at the Facility, including, but not limited to, costs for event staffing including ushers, ticket takers, security and-other event staff, and costs relating to setup and cleanup. "Excess City Distribution" -- as defined in Section 4.3. "Expiration Date" -- as defined in Section 3.1. "Facility" -- as defined in the Background Section of this Agreement and as depicted on Exhibit "A" hereto. "Fiscal Year" -- each one year period beginning January 1 and ending December 31. "Governmental Requirements" -- all laws, ordinances, rules, regulations, statutes, and other legal requirements of any governmental body or authority or any agency thereof (including, without limitation, federal, state, county, and municipal). "Live Nation" -- as defined in the first paragraph of this Agreement. "Management Fee" -- as defined in Section 4.1(a)(i). "Net Operating Loss/Profit" -- with respect to a Fiscal Year, the excess, if any, of Operating Expenses for such Fiscal Year over Operating Revenues for such Fiscal Year, in the case of a loss, and the excess, if any, of Operating Revenues for such Fiscal Year over Operating Expenses for such Fiscal Year, in the case of a profit. "Operating Expense Exclusions" -- all costs of City Work, ad valorem real estate taxes and assessments, costs to remedy any violations of Governmental Requirements existing on the Commencement Date (other than violations that will be cured by the Upgrades), any sales tax or surcharge upon ticket sales imposed by the City specifically as opposed to a tax or surcharge imposed generally upon ticket sales in the City (except any such taxes imposed in connection with the Community Benefit Fund). "Operating Expenses" -- any and all expenses and expenditures of whatever kind or nature incurred, directly or indirectly, by Live Nation in promoting, operating, maintaining, insuring and managing the Facility, including, but not limited to: employee compensation and related expenses (e.g., base salaries, bonuses, severance and car allowances), employee benefits and related costs (e.g., relocation and other related expenses pursuant to Live Nation's relocation policy, parking and other fringe benefits), supplies, material and parts costs, costs of any interns and independent contractors, advertising, all costs of maintaining the Facility as required by this '`~ Agreement, marketing and public relations costs and commissions, janitorial and cleaning -2- expenses, data processing costs, dues, subscriptions and membership costs, amounts expended to procure and maintain permits and licenses, sales taxes imposed upon ticket sales or rentals, special assessments imposed upon the Facility by any governmental entity, professional fees directly relating to the operation of the Facility, printing and stationery costs, Event Expenses, postage and freight costs, equipment rental costs, computer equipment leases and line charges, telephone switch and telecommunications services, repairs and maintenance costs (e.g., elevators and HVAC), artist and talent fees, costs, and expenses, show settlement charges, security expenses, travel and entertainment expenses in accordance with Live Nation's normal policies, the cost of employee uniforms, safety and medical expenses, exterminator and waste disposal costs, costs relating to the maintenance of signage inventory and systems, the cost of compliance with Governmental Requirements, all utility costs, all premiums for insurance carried by Live Nation pursued to Sections 8.2, 8.3 and 8.4, the cost of capital improvements made pursuant to Section 5.4 (except, however, the cost of Upgrades or capital improvements made pursuant to Section 5.4(b)(i), the cost of which shall be paid by Live Nation from its own funds, and except the cost of City Work made pursuant to Section 5.4(b)(ii), the cost of which shall be paid by City from its own funds), the cost of all personal property and equipment (other than Upgrades), and the internal service charges assessed by the City to the Facility for chilled water charges (which shall be fair and equitable but shall not include any capital cost component) and all other costs of operating and maintaining the Facility, except, however, Operating Expenses shall not include the Management Fee or any Bonus paid pursuant to Section 4.1, the cost of Upgrades, any Operating Expense Exclusions, or any costs of litigation between City and Live Nation, or any other costs that are specified in this Agreement as costs to be paid by City. All Operating Expenses shall be determined in accordance with generally accepted accounting principles consistently applied and recognized on a full accrual basis. "Operating Revenues" -- any and all revenues of every kind or nature derived from operating, managing or promoting the Facility, including, but not limited to: license and concession fees, rentals, revenues from merchandise sales, advertising sales, equipment rentals, box office revenues, food service and concession revenues (however, if such revenues are collected in the first instance by and retained by the concessionaire, only the amount of such revenues paid by the concessionaire to the Facility shall be included as Operating Revenues), commissions or other revenues from decoration and set-up, security and other subcontractors (however, if such revenues are collected in the first instance by and retained by such subcontractors, only the amount of such revenues paid by such contractors to the Facility shall be included as Operating Revenues), miscellaneous operating revenues, revenues generated from separate agreements with Live Nation Affiliates pertaining to the Facility, sponsorship revenues, and interest revenues, all as determined in accordance with generally accepted accounting principles and recognized on a full accrual basis. For the sake of clarity, the parties acknowledge that revenues from the sale of tickets for Events at the Facility are not Operating Revenues, but are instead revenues of the promoter and/or performer of each such Event. To the extent that Live Nation collects such ticket sale revenue on behalf of a promoter and/or performer, such ticket sale revenue shall be the source of funds from which Live Nation collects the rental charges and other event reimbursements owed by the promoter and/or performer for use of the Facility, which such charges and reimbursements are Operating Revenues hereunder. Operating Revenues shall not, however, include any revenue from valet parking or any other parking ~ , charges with respect to the Facility or Events and shall not include any revenues from name-in- -3- title rights (i.e., the right to name the Facility and signage related thereto), all of which are specifically reserved to City. "Renewal Term" -- as defined in Section 3.2. "Required City Distribution" -- the following amounts shall be deemed Required City Distributions: Required City Distributions for a Renewal Term shall be determined pursuant to Section 3.2. (i) for the period commencing with the Commencement Date and continuing through December 31, 2007, the sum of $524,999.98; (ii) for the Fiscal Year commencing January 1, 2008, the sum of $1,020,000; and (iii) for the Fiscal Year commencing January 1, 2009 and each Fiscal Year thereafter for the remainder of the Term, the Required City Distribution shall be an amount equal to the product of 1.02 multiplied by the Required City Distribution in effect for the preceding Fiscal Year. Required City Distributions shall be paid to City in advance on the first day of each Fiscal Year or partial Fiscal Year. "Run" -- as defined in Section 2.2(b). "Tangible Net Worth" -net worth (which shall be total assets of Live Nation minus all of its total liabilities) minus its intangible assets, all according to generally accepted accounting principles (GAAP), consistently applied. "Term" -- as defined in Section 3.1; provided, however, if this Agreement is extended for a Renewal Term, all references to "Term" contained herein shall also include the Renewal Term. "Upgrade Consents" -- all City and other governmental and quasi-governmental consents and approvals (including building permits to allow Live Nation to commence all Upgrades) and to commence use and operation of the Facility as provided herein, including sublicensing of Live Nation to utilize the liquor license held by City and any required certificates of occupancy or use and all required approvals to allow sale of food and beverages. "Up ades" -- the work to be performed by Live Nation in accordance with Section 5.4(b)(i) at the sole cost and expense of Live Nation and not as an Operating Expense, as listed on Exhibit "C" hereto. remainder of page intentionally blank -4- 2. Engagement of Live Nation; Scope of Services. 2.1. Enga eg ment. (a) General Scope. City hereby engages Live Nation to operate, manage, maintain, promote and market the Facility during the Term, upon the terms and conditions hereinafter set forth. (b) Manager of the Facility. Live Nation accepts the engagement and agrees to operate, manage, maintain, promote and market the Facility in a manner consistent with other similar first class facilities operated by Live Nation and its Affiliates as of the Commencement Date. Subject to the terms of this Agreement, Live Nation shall be, as agent for the City, the sole and exclusive manager of the City to operate, manage, maintain, promote and market the Facility during the Term. In such capacity, except as otherwise expressly reserved under this Agreement to the City and/or except for such matters as are subject to the approval of City or City Manager, Live Nation shall have exclusive authority over the management and operation of the Facility and all activities therein; provided, however, the Facility shall be used only as alive entertainment venue and public auditorium or any combination thereof, and for such ancillary uses as are customarily related to such primary use, including, without limitation, broadcasting, recording, filming, private parties or functions, bar (including alcoholic beverages) and food concessions (and including preparation of food), in each case in conjunction with an Event or rental function then being held, and sale of merchandise related to any Event then being held. Other uses may be allowed only with the prior written approval of the City Manager. Without limiting the generality of the foregoing, in no event shall food or beverages be sold, distributed, or served after midnight and in no event shall alcoholic beverages be sold in bottles. Live Nation shall also have the right to office its personnel out of the Facility as and to the extent Live Nation may desire. The Facility includes only a very limited number of parking spaces adjacent to the building. Patrons of Events may park in public parking lots and garages if and to the extent available, upon paying the applicable parking charges. Live Nation recognizes that the availability and access to public parking will be affected from time to time by construction activities, including, without limitation, construction in connection with City Hall and parking garage(s), on public surface parking lots, and construction on the front lawn of the Facility in conjunction with the New World Symphony project. 2.2. Scope of Services. (a) General. Live Nation shall perform and furnish management services, personnel, and systems and materials as are appropriate or necessary to operate, manage, supervise, maintain, promote and market the Facility in a manner consistent with the operations, management, promotions and marketing of other similar first-class facilities operated by Live Nation and its Affiliates on the Effective Date. (b) Required Number of Events; Continuous Operation• Conclusion of ~,. Events. In order to ensure the continuous operation of the Facility, commencing with the Fiscal Year that starts January of 2008 Live Nation shall cause at least 50 Events to be held at the -5- Facility for each Fiscal Year (and proportionately for any partial Fiscal Year) during the Term. The aforesaid fifty (50) Events shall be calculated by counting each separate Event in a Run but Live Nation agrees that in Fiscal Year 2008 and each Fiscal Year thereafter there will be not less than 17 different acts (and for purposes of calculating whether this requirement has been met, each Run shall be considered only as a single act). Live Nation shall cause the Facility to be open on a year round basis, subject to closures for reasonable periods for repairs, maintenance and alterations. All Events and all rentals shall conclude prior to 1:00 a.m. unless otherwise approved by City Manager in writing. Notwithstanding the foregoing, Live Nation shall be allowed to cease operations at the Facility in whole or in part during the period from the Commencement Date through December 31, 2008 to perform the Upgrades, and the number of required Events shall be proportionately reduced for the period(s) of cessation. (c) Booking Policies. In booking the Facility, Live Nation will use such booking policies as are used by Live Nation as of the Commencement Date at other similar first- class facilities operated by Live Nation, subject to the restrictions and limitations set forth herein. Except as otherwise provided herein, Live Nation shall have the sole authority to approve the scheduling of any Event in the Facility, including, Events of a nontraditional nature such as multi-year user contracts (but not beyond the Term) and Events requiring or having . co- promotions. Live Nation covenants and agrees to book Events each Fiscal Year that are balanced so as to ensure a reasonably proportioned blend of cultural experiences including varied types of music and other live performances appealing to the varied tastes of the population including, without limitation, popular, rock and roll, Latin, blues, soul, jazz, folk, classical, and country music, and comedy and theater. Live Nation shall have no obligation, however, to book any type or category of Events or specific Event that are unprofitable, as reasonably determined by Live Nation. City Manager shall have the right, however, to prohibit certain Events or uses from occurring, upon City Manager's reasonable determination that such Event or use might present unreasonable safety concerns. Notice of any such determination shall be sent by written notice to Live Nation within fourteen (14) days after City Manager has received the bi-weekly booking report from Live Nation that specifies the potential Event and if such determination is not delivered within such fourteen (14) day period, then the Event may be held. Live Nation shall use good faith efforts to accommodate the Miami Beach Convention Center and the Greater Miami Convention and Visitors Bureau to allow them to book the use of the Facility in accordance with the following: (i) reservations for rotational conventions, trade shows and meeting business may be made by the Miami Beach Convention Center and/or the Greater Miami Convention and Visitors Bureau up to sixty (60) months prior to an Event or intended use, (ii) reservations must be confirmed at least twelve (12) months before the scheduled Event, (iii) such reservation can not be in conflict with another Event already scheduled or on a "hold" by Live Nation, (iv) such Event can not be of a duration in excess of two (2) consecutive days, and (v) the Miami Beach Convention Center and/or the Greater Miami Convention and Visitors Bureau, as applicable, executes Live Nation's standard rental agreement for Events. Attached hereto as Exhibit "F" is a list of Events or rentals which have been booked prior to the date of execution of this Agreement. Live Nation shall honor all such bookings (but no such Events may be scheduled during performance of the Upgrades) and shall receive from City all revenues from the agreements that have already been paid and shall receive all remaining revenues under the agreements. -6- 2.3. ~ecific Services. Without limiting the generality of the foregoing, Live Nation shall perform all of the following services, all without the necessity of first obtaining City's approval. (except as otherwise expressly provided in this Agreement), all of which shall be performed by Live Nation in a manner consistent with other similar first class facilities operated by Live Nation on the Commencement Date: (a) subject to the terms and requirements of this Agreement, establish all booking policies and control the booking of the Facility, including, determining the form of rental or use agreement to be used for the use or rental of the Facility. Live Nation shall hold the master set of all booking records and schedules and shall provide copies of the booking schedules to City Manager bi-weekly or at such other times as City Manager shall request. Live Nation shall, from time to time, review the booking policies and advise the City Manager of changes, if any, in the booking policies and Live Nation shall consider any requests or suggestions made by City or City Manager; (b) employ, supervise and direct all employees and personnel consistent with the provisions of this Agreement. All employees shall be employees of Live Nation, its affiliates or third parties, and not City. Live Nation shall assure that the Facility is adequately staffed with competent, qualified personnel to fulfill its responsibilities under this Agreement; (c) administer relationships with all third parties (including, without limitation, entering into contracts and licenses for the food and beverage concessionaire at the Facility) for the use, maintenance and operation of the Facility, initiate and participate in any and all negotiations, renewals and extensions relating to such third party relationships, and enforce contractual agreements concerning any such third party relationships; (d) negotiate, execute in its name as agent for the City, deliver and administer any and all licenses, occupancy agreements, sponsorship agreements (excluding name-in-title and valet parking agreements), rental agreements, booking commitments, concession agreements, supplier agreements, service contracts (including, without limitation, contracts for cleaning, decorating and set-up, emergency services, general maintenance and maintenance and inspection of HVAC and other systems and elevators, stage equipment, fire control panel and other safety equipment, staffing and personnel needs, including guards and ushers, telephone, extermination and other services which are necessary or appropriate) and all other contracts and agreements in connection with the management, maintenance, promotion and operation of the Facility, provided that (1) if any such license, agreement, commitment or contract has a term that extends beyond the remaining Term or Renewal Term, as the case may be, such license, agreement, commitment or contract shall provide that it is automatically assigned to City as of the expiration or termination date of this Agreement and that the City Manager may terminate any such agreement without payment thereafter at any time upon not less than ten (10) days written notice, (2) Live Nation shall have the sole authority to approve the scheduling of any Event to be held at the Facility, subject to the limitations and requirements of this .Agreement, and (3) any contract entered into between Live Nation and a subsidiary and/or affiliate company shall be at terms and for prices customarily charged by such subsidiary and/or affiliate company for comparable goods and services elsewhere at rates that are competitive within the industry; -7- (e) maintain the Facility (including, without limitation, all structural components thereof and all electrical, HVAC, life safety, mechanical, plumbing and other systems and equipment) in a good and clean condition consistent with other similar first class facilities operated by Live Nation and its Affiliates as of the Commencement Date and in compliance with all Governmental Requirements, ordinary wear and tear, and casualty loss excepted. Maintenance responsibility shall include, without limitation, repairs and replacements (structural, nonstructural capital and noncapital) and preventative maintenance and good faith endeavor to comply with Exhibit "D" hereto. Live Nation shall maintain in full force and effect service contracts with qualified and licensed service providers with respect to HVAC, roof and elevator systems unless Live Nation warrants and represents to City Manager that Live Nation has sufficient trained and qualified employees (in each case with not less than one year's experience) to maintain such systems and that any warranties will not be voided as a result thereof. Live Nation shall keep on-site maintenance .manuals and records reflecting all of Live Nation's maintenance activities, all of which shall be available for inspection by City Manager or his designee upon request. Live Nation shall submit to City Manager or his/her designee periodic (not less than quarterly) reports specifying all maintenance work performed during such period, which reports shall be used by the City's Property Management Division or its consultant as part of an annual maintenance inspection and review. Live Nation represents and agrees that prior to the Effective Date Live Nation inspected the Facility and Live Nation has accepted the Facility "as-is, where-is and with all faults" except for the City Work and violations of Governmental Requirements existing as of the Commencement Date (other than those that will be cured by the Upgrades). (f) rent, lease, or purchase all equipment and maintenance supplies necessary or appropriate for the operation and maintenance of the Facility; (g) establish and adjust prices, rates and rate schedules for the aforesaid licenses, agreements and contracts and' any other commitments relating to the Facility to be negotiated by Live Nation in the course of its management, operation, booking and promotion of the Facility. Live Nation shall consult with the City Manager about any adjustments to the rate schedules at the Facility to be made by Live Nation; (h) pay when due, on behalf of the City, all Operating Expenses from accounts established pursuant to Section 5.3 or from Live Nation's own funds pursuant to Section 5.1; (i) after consultation with the City Manager and the City Attorney, and subject to approval by the City Attorney or his designee, institute as agent for the City, the costs of which shall be included as Operating Expenses, such legal actions or proceedings necessary or appropriate in connection with the operation of the Facility (using legal counsel approved by the City Attorney), including, without limitation, to collect charges, rents or other revenues due to the City or to cancel, terminate or sue for damages under, any license, use, advertisement or concession agreement for the breach thereof or default thereunder by any licensee, user, °'~ advertiser, or concessionaire at the Facility. Institute on Live Nation's own behalf {and not as -8- agent for City) without consultation or approval of the City, the costs of which shall be included as Operating Expenses, such legal actions or proceedings necessary or appropriate in connection with the operation of the Facility, including, without limitation, to collect charges, rents or other revenues due to the City or Live Nation or to cancel, terminate or sue for damages under, any license, use, advertisement or concession agreement for the breach thereof or default thereunder by any licensee, user, advertiser, or concessionaire at the Facility; (j) maintain a master set of all booking records and schedules for the Facility (which shall be available for inspection by City Manager upon written request); (k) provide day-to-day administrative services in support of its management activities to ensure that the Facility shall be operated, managed, and maintained and performed in a first class manner consistent with similar first class facilities operated by Live Nation and its Affiliates as of the Commencement Date including, but not limited to, acquisition of services, equipment, supplies and facilities; maintenance and property management; personnel management; record-keeping; collections and billing; and similar services; (1) engage in advertising, solicitation, and promotional activities necessary to effectively market the Facility and Events. In connection with its activities under the terms of this Agreement, Live Nation will be permitted to use the logo and brand identity of the City of Miami Beach, as approved by the City Manager or his designee, and the Facility; (m) operate the Facility's telephone switch and telecommunications services; (n) act as a collection agent for the City on sales taxes from operation of the Facility and remit to the State of Florida such sales taxes; (o) subject to the terms of this Agreement, cause the Facility to be in compliance with all Governmental Requirements at all times including, without limitation, making such repairs, improvements, alterations and additions (both capital and non-capital and structural and non-structural) required thereby; (p) comply with all City Agreements; (q) Except as otherwise approved by the City Manager, Live Nation shall not license or allow the use of any portion of the Facility to other than short-term users (i.e., less than thirty (30) consecutive days). Live Nation shall require that all users of the Facility provide certificates of insurance evidencing appropriate insurance and any other insurance required by the applicable license, use or occupancy agreement. Copies of these certificates shall be furnished to the City Manager or his/her designee prior to any Event or use. Such insurance shall be kept in force at all times by all licensees, users, lessees and concessionaires. All liability policies shall name the City and Live .Nation as additional insureds. Live Nation shall also require all users of Facility to execute, among the terms of the license, agreement or occupancy agreement, an agreement to indemnify, defend and hold harmless the City (the form of such indemnity provisions to be subject to City Attorney's approval, not to be unreasonably withheld; provided that Live Nation's standard rental agreement, attached hereto as Exhibit H, is deemed k approved and if the indemnity provisions therein are utilized in any such license, agreement or occupancy agreement, the same shall be deemed approved). -9- (r) provide professional consulting assistance to City from time to time respecting City's booking and programming for the "Byron" and "Colony" venues, subject to the terms hereof (herein, the "Byron/Colony Assistance"). Live Nation's requirement to provide the Byron/Colony Assistance shall be limited to reasonable consulting services only and expressly shall not include any obligations for promoting, operating, maintaining, managing, business development, sales, programming or booking, and expressly shall not include any liability for any asserted failure of such consulting services to meet any required standard or frequency. (s) Attend scheduled Major Events Planning (MEP) meetings. 2.4. City and Charitable Use of Facility and Ticket Programs. (a) Free City Use. City shall be entitled on two (2) occasions in each full Fiscal Year (and proportionately for any partial Fiscal Year) during the Term and any Renewal Term, subject to the terms and conditions hereof, to make use of the Facility for hosting an Event of one (1) day or one (1) evening, in each case expressly subject to the provisions of this subparagraph (a) (such instance(s) of use by City is herein referred to as "City Use"). Although City shall not owe a fee, rent or other payment strictly for the right to make such City Use, nonetheless (i) City shall promptly (within ten (10) business days after receipt of written invoice therefor), reimburse Live Nation for all actual expenses and costs incurred by Live Nation to facilitate City Use, including, without limitation, Live Nation's standard charges for janitorial, clean up, crowd and traffic control, set-up and tear-down costs and fees and charges (including for materials, labor and other services) directly necessitated by the occurrence of City Use; (ii) Live Nation shall retain exclusive rights to the operation of all concessions and other operations at the Facility during City Use, including, without limitation, food and beverage concessions and sales, including alcoholic beverages (but City Manager shall have the right to prohibit the sale of alcoholic beverages for any City Use); and all proceeds of such sales and concession operations shall be Operating Revenues. City shall have no right to reserve or retain any portion of the concession proceeds nor to operate in competition therewith. Live Nation will ensure that the pricing for any concessions shall not exceed the normal pricing therefor charged at standard Events at the Facility; (iii) all City Use Events shall be scheduled in accordance with Live Nation's scheduling needs so as not to conflict with or impair Live Nation's ability to maintain its anticipated schedule of Events, but shall otherwise be scheduled at times convenient for City, with Live Nation reasonably cooperating with City in coordinating all scheduling (but in any case, Live Nation shall not be obligated to permit any City Use unless scheduling therefor was memorialized in writing signed by the parties in advance of any City Use); (iv) City shall not be permitted to have a City Use for a concert or that violates the terms of any sponsorship entered into by Live Nation (for purposes of this sentence, a "concert" that is so prohibited shall not refer to "amateur talent" as defined below); and (v) City's entering into the standard use agreement attached hereto as Exhibit H-l. So long as Live Nation has complied with its obligations under this subparagraph (a), City shall not be entitled to "roll over" or "carry forward" any unused City Use opportunity from a prior Fiscal Year; such that if during any Fiscal Year fewer than two (2) City Uses actually occur for any reason, including reasons that were completely outside the parties' reasonable control, then City shall be deemed irrevocably to have waived its right or entitlement to the City Use Event that otherwise could have occurred during the prior Fiscal Year(s). Live Nation shall have the right to promulgate reasonable rules from time to time concerning City Use so long as they are consistent with the terms hereof and rules imposed upon -10- other Events at the Facility. For purposes of this Section 3.4, "amateur talent" shall be given its common and every day meaning and shall refer to performers of concerts who do not perform on a regular basis for commercial gain as their primary occupation. (b) Free Charitable Use. City shall be entitled on two (2) occasions in each full Fiscal Year (and proportionately for any partial Fiscal Year) during the Term and any Renewal Term, subject to the terms and conditions hereof, to allow the Facility to be used for the Facility's ordinary purposes by a duly qualified charitable organization (e.g., a 501(c)(3) entity or school) and of duration of one (1) day or one (1) evening and expressly subject to the provisions of this subparagraph (b) (each instance of such use is herein referred to as "Charitable Use"). Although City shall not owe a fee, rent or other payment strictly for the Charitable Use, (i) City shall promptly (within ten (10) business days after receipt of invoice therefor) reimburse Live Nation for all actual expenses and costs incurred by Live Nation to facilitate the Charitable Use, including, without limitation, Live Nation's standard charges for janitorial, clean up, crowd and traffic control, set-up and tear-down costs and fees and charges (including for materials, labor and other services) directly necessitated by the occurrence of any Charitable Use; (ii) Live Nation shall retain exclusive rights to the operation of all concessions and other operations at the Facility during any Charitable Use, including, without limitation, food and beverage concessions and sales, including alcoholic beverages (but City Manager shall have the right to prohibit the sale of alcoholic beverages during any Charitable Use) and all proceeds of sales and concession operations shall be Operating Revenues (City shall have no right to retain or reserve any portion thereof nor to operate in competition therewith); Live Nation will ensure that the pricing for any concessions shall not exceed the normal pricing therefor charged at standard Events at the Facility; and (iii) any Charitable Use Event shall be scheduled in accordance with Live Nation's scheduling needs so as -not to conflict with or impair Live Nation's ability to maintain its anticipated schedule of Events; but shall otherwise be scheduled at a time convenient for the City, with Live Nation reasonably cooperating with City in coordinating. all scheduling (but in any case, Live Nation shall not be obligated to permit. any Charitable Use unless scheduling therefor was memorialized in writing signed by the parties in advance of any the Charitable Use Event); (iv) City shall not be permitted to have a Charitable Use for a concert or that violates the terms of any sponsorship entered into by Live Nation (for purposes of this sentence, a "concert" that is so prohibited shall not refer to "amateur talent" as defined in Section 2.4(a)); and (v) City's or the charitable organization's entering into a standard use agreement in the form of Exhibit H-1 in the case of the City and Exhibit H in the case of a charitable organization. So long as Live Nation has complied with this subparagraph (b), City shall not be entitled to "roll over" or "carry forward" any unused Charitable Use from a prior Fiscal Year; such that, in the event during any Fiscal Year no such Charitable Use Event occurs for any reason, including reasons which were completely outside the parties' reasonable control, then, City shall be deemed irrevocably to have waived its right or entitlement to the benefit of the Charitable Use Event that otherwise could have occurred during the prior Fiscal Year(s). Live Nation shall have the right to promulgate reasonable rules from time to time concerning the Charitable Use so long as they are consistent with the terms hereof and rules imposed upon other Events at the Facility. (c) Free City Parks and Recreation Summer Showcase Event Use (currently referred to as the "Playground Review"). Commencing in Fiscal Year 2008, City shall be entitled on one (1) occasion in each full or partial Fiscal Year during the Term (for these purposes, such "one (1) occasion" shall mean a total of three (3) consecutive days and nights, -11- inclusive of rehearsal and the Event), to make use of the Facility for hosting the Parks and Recreation Summer Showcase Event (currently referred to as "Playground Review") subject to the provisions of this subparagraph (c) (each instance of use by the City is herein referred to in this subparagraph (c) as the "City Playground Review Use"). Although City shall not owe a fee, rent or other payment strictly for the right to make such City Playground Review Use, (i) City shall promptly (within ten (10) business days after receipt of written invoice therefor) reimburse Live Nation for all actual expenses and costs incurred by Live Nation to facilitate the City Playground Review Use, including, without limitation, Live Nation's standard charges for janitorial, clean up, crowd and traffic control, set-up and tear-down costs and fees and charges (including for materials, labor and other services) directly necessitated by the occurrence of the City Playground Review Use; (ii) Live Nation shall retain exclusive rights to the operation of all concessions and other operations at the Facility during any City Playground Review Use, including, without limitation, food and beverage concessions and sales (but the sale of alcoholic beverages shall be prohibited during the Playground Review Use unless specifically authorized in advance in writing by City Manager) and all proceeds of the sales and concession operations shall be Operating Revenues (City shall have no right to reserve or retain any portion thereof nor to operate in competition therewith); Live Nation will ensure that the pricing for any concessions shall not exceed the normal pricing therefor charged at standard events at the Facility; (iii) the City Playground Review Use Event shall be scheduled each Fiscal Year or partial Fiscal Year on Tuesday, Wednesday and Thursday of the second week in July; provided, however, City may request another weekend and Live Nation shall reasonably cooperate with City in coordinating scheduling of another weekend (but in any case, Live Nation shall not be obligated to permit the City Playground Review Use Event unless scheduling therefor does not conflict with other Events and is memorialized in writing signed by the parties in advance of the City Playground Review Use Event); (iv) under no circumstances shall City be permitted to have a City Playground Review Use Event for a concert or that violates the terms of any sponsorship entered into by Live Nation (but this provision shall not be deemed to prohibit City from including concerts by "amateur talent" as defined in Section 2.4(a) performing as part of the Event), and (v) City's entering into the standard use agreement attached hereto as Exhibit H-l. So long as Live Nation has complied with this subparagraph (c), City shall not be entitled to "roll over" or "carry forward" any unused City Playground Review Use opportunity from a prior Fiscal Year; such that, in the event during any Fiscal Year no City Playground Review Use occurs for any reason, including reasons that were completely outside the parties' reasonable control, then, City shall be deemed irrevocably .to have waived its right or entitlement to the City Playground Review Use Event that otherwise could have occurred during .the prior Fiscal Year(s). Live Nation shall have the right to promulgate reasonable rules from time to time concerning the City Playground Review Use so long as they are consistent with the terms hereof and rules in effect for other Events at the Facility. Notwithstanding anything to the contrary contained herein, City shall have the right to sell memorabilia directly related to the Event such as CD/DVD products and to retain any proceeds thereof. (d) Free Complimentary Tickets. City shall be entitled to receive twenty-six (26) complimentary tickets for each Event at the Facility that is open to the general public, including those presented or promoted by Live Nation and including third party rentals but which is not a City Playground Review Use Event or a Charitable Use Event (herein, "Complimentary ~_ Tickets"), subject to the provisions of this subparagraph (d). City may not engage in the sale or re-sale of the Complimentary Tickets nor may City offer any Complimentary Tickets to the -12- intended user prior to the date the tickets have first become generally available to the public. Under no circumstances shall City be entitled to "roll over" or "carry forward" any unused or un- retrieved Complimentary Tickets; such that, in case of any Event for which City neglects or otherwise fails to secure the Complimentary Tickets for any reason other than Live Nation's failure to comply with its obligations under this subparagraph (d), including reasons that were completely outside the parties' reasonable control, then, City shall be deemed irrevocably to have waived its right or entitlement to those particular Complimentary Tickets and City shall not be entitled to any remuneration for any lost opportunity. Under no circumstances shall City be entitled to secure any Complimentary Tickets within the three (3) days immediately preceding the applicable Event (at which point any Complimentary Tickets otherwise then available shall be deemed forfeited without any remedy or rights therein surviving). Live Nation shall have sole and exclusive control over seating location decisions for Complimentary Tickets from time to time so long as the Complimentary Tickets are seats within the top 30% tiered price level (and thus the location may change from Event to Event). Live Nation shall provide a contact with the City from whom the City can conveniently secure the Complimentary Tickets from time to time; provided, nothing herein shall obligate Live Nation to remind City of the availability of the Complimentary Tickets nor to physically. deliver them to City. City shall arrange for an employee, messenger, or other authorized representative to physically retrieve any Complimentary Tickets from Live Nation. (e) Free School Complimentary Tickets. City shall be entitled to receive up to twenty-eight (28) complimentary tickets (if and as available and without an obligation to reserve seating to make them available) for each Event that is open to the general public (herein, "School Complimentary Tickets"), subject to the provisions of this subparagraph (e). In case a particular concert or performer appears on multiple consecutive occasions at the Facility, each of which qualifies as an Event hereunder, that series of Events shall be treated as a single event for purposes of Live Nation's obligation to .provide School Complimentary Tickets [thus, for example, a ballet presented on four (4) consecutive evenings at the Facility or with multiple shows on consecutive days such as a matinee and evening show on Saturday and Sunday would constitute four (4) separate Events, but only a total of twenty-eight (28) School Complimentary Tickets shall be made available for that ballet, with such tickets of the particular show date and time to be determined by Live Nation in its sole and absolute discretion (any successive Events of a single performer or act is herein referred to as a "Run")]. Under no circumstances shall City be entitled to "roll over" or "carry forward" any unused or un-retrieved School Complimentary Tickets; such that, in case of any Event for which School Complimentary Tickets hereunder were available but in respect of which City neglects or otherwise fails to secure the School Complimentary Tickets for any reason, including reasons that were completely outside the parties' reasonable control, then, City shall be deemed irrevocably to have waived its right or entitlement to those particular School Complimentary Tickets and City shall not be entitled to any remuneration for any lost opportunity. City may not engage in the sale or re-sale of School Complimentary Tickets nor may City offer any School Complimentary Tickets to the intended user prior to the date the tickets for any particular Run of Events first become generally available to the public. City shall not be entitled to secure any School Complimentary Tickets except within the ten (10) business days immediately preceding the first presentation of the applicable Run of Events. Live Nation shall have sole and exclusive control over seating location decisions for School Complimentary Tickets, and. Live Nation may elect to provide School Complimentary ~~ Tickets as general admission or any other type of ticket. Live Nation shall provide a contact with -13- the City from whom the City can conveniently secure School Complimentary Tickets from time to time; provided, nothing herein shall obligate Live Nation to physically deliver them to City. City shall arrange for an employee, messenger, or other authorized representative to physically retrieve any School Complimentary Tickets from Live Nation. City expressly agrees as a material inducement to Live Nation's agreeing to make the School Complimentary Tickets so available that City shall distribute the School Complimentary Tickets only to schools that serve Miami Beach residents and without charge or fee therefor, with the stipulation that each school shall in turn make the School Complimentary Tickets available without charge or compensation only to bona fide students and/or faculty of the schools. Live Nation reserves the right to require those using any School Complimentary Tickets to show appropriate school picture ID and to check names against previously provided lists of recipients of the tickets. Live Nation shall have the right to promulgate reasonable rules from time to time concerning the use of the tickets so long as same are consistent with the terms hereof to assure the efficient operation of the Facility. Live Nation will use good faith efforts to advise the City of the availability of School Complimentary Tickets for an Event at least two (2) weeks prior to the Event. (f) Community Needs Auction -Net Proceeds Donation. City shall be entitled to receive net proceeds resulting from each Community Needs Auction. Live Nation agrees to request of each act headlining any Event at the Facility that is promoted or presented by Live Nation that one or more of its stars autograph two (2) pieces of "memorabilia." So long as Live Nation makes the request in good faith, Live Nation shall be deemed to have discharged its obligations respecting its efforts to secure autographed memorabilia. All memorabilia so autographed shall be kept and stored by Live Nation pending its auction. Commencing with calendar year 2008,-once during each Fiscal Year or partial Fiscal Year during the Term and Renewal Term, Live Nation shall host an Event at the Facility that includes an auction in which the autographed memorabilia accumulated to date shall be auctioned to the highest bidder (a "Community Needs Auction"). The theme of any Community Needs Auction, which City shall publicize in any manner the City determines is best, shall be a theme of enhancing and promoting the City's community social improvement programs or other social programs for community benefit and welfare as the City may reasonably determine ("Community Enhancement"). All net proceeds of the Auction shall be delivered to the City promptly after conclusion of the Community Needs Auction and Live Nation's accounting thereof. City agrees that it shall apply all net proceeds for Community Enhancement. For these purposes, "net proceeds" shall mean all proceeds of bids actually received from the Community Needs Auction,. reduced by all actual expenses and costs incurred by Live Nation to facilitate the Community Needs Auction, including, without limitation, a fair allocation toward janitorial, clean up, crowd and traffic control, set-up and tear-down costs and fees and charges (including for materials, labor and other services) directly necessitated by the occurrence of the Community Needs Auction. Live Nation shall retain exclusive rights to the operation of all concessions and other operations at the Facility during any Community Needs Auction, including, without limitation, food and beverage concessions and sales, including alcoholic beverages; and all proceeds of the sales and concession operations shall be Operating Revenues (City shall have no other right of participation in any portion thereof nor to operate in competition therewith). Live Nation will ensure that the pricing for any concessions shall not exceed the normal pricing therefor charged at standard Events at the Facility. The Community Needs Auction shall be scheduled in accordance with Live Nation's scheduling needs so as not to conflict with or impair Live Nation's ability to maintain its anticipated schedule of Events, and the parties shall reasonably -14- cooperate with each other in coordinating all scheduling (but in any case, Live Nation shall not be obligated to permit any Community Needs Auction unless scheduling therefor was memorialized in writing signed by the parties in advance of any such Community Needs Auction). Under no circumstances shall the City be permitted to require Live Nation to host a Community Needs Auction that includes a commercial concert (but this provision shall not be deemed to prohibit City from including concerts solely by "amateur talent" (as defined in Section 2.4(a) performing as part of the Community Needs Auction) or that violates the terms of any sponsorship entered into by Live Nation. City shall not be entitled to "roll over" or "carry forward" any unused Community Needs Auction opportunity from a prior Fiscal Year; such that, in the event during any Fiscal Year no Community Needs Auction occurs for any reason, including reasons that were completely outside the parties' reasonable control, then, City shall be deemed irrevocably to have waived its right or entitlement to the Community Needs Auction that otherwise could have occurred during such prior Fiscal Year(s). Except as may be delivered to the winning bidder at a Community Needs Auction, City shall have no right or entitlement in or to any such memorabilia. Live Nation reserves the right to promulgate reasonable rules concerning the auction so long as same are consistent with the terms hereof to assure the efficient operation of the Auction or otherwise to address issues of health, safety, welfare and decorum. (g) Community Benefit Fund. Pursuant to Resolutions 83-17447, 84-17882, 12-20545, 93-20871, 97-22543, 2004-25583 (collectively, the "Resolutions"), City imposes a surcharge on all tickets sold at Events in the Facility and uses the proceeds thereof to fund the Community Benefit Fund. City uses funds in the Community Benefit Fund to subsidize the price of tickets made available to senior citizens and students and to pay for the rental of the Facility for twelve (12) Events per calendar year. Live Nation agrees (i) to continue to collect the surcharge and pay amounts so collected to the City on a monthly basis for deposit into the Community Benefit Fund; (ii) to continue to make available for sale the maximum number of tickets currently set forth in the Resolutions at the same percentage discount as is in effect on the Commencement Date (a portion of the ticket price is paid from the Community Benefit Fund, a portion is paid by the senior citizen or student, and a portion is the discount that will be granted by Live Nation) and to continue to allow City to rent the Facility for twelve (12) Events per calendar year; and (iii) to cooperate with City as to the procedures for deposit of funds into the Community Benefit Fund and .sale of tickets pursuant to the Resolutions. The Community Benefit Fund is used solely to subsidize ticket prices for Events held at the Facility and for twelve (12) rentals per calendar year. Live Nation recognizes and agrees that if the Community Benefit Fund becomes inadequate to subsidize the maximum number of tickets as currently specified in the Resolutions and to pay for twelve (12) rentals per calendar year, the surcharge maybe increased by the City to a level that is adequate to do so (in which case Live Nation shall collect the surcharge of the increased rate). In the event that any future Resolution increases the number of tickets to be available under the Community Benefit Fund, Live Nation shall not bear any economic loss as a result thereof and City shall be solely responsible for the additional costs associated with the increased number of tickets and there shall be no surcharge paid as a result thereof. Live Nation agrees that the rental charge for each of the twelve (12) rentals paid by the Community Benefit Fund shall be fixed at $3,000 for the entire Term. (h) Resident Ticket Program. Live Nation agrees to operate a ticket program ~., available only to City of Miami Beach residents (meaning individuals who permanently reside in the City of Miami Beach), by which a limited number of tickets (no fewer than 100 tickets for -15- each Event) shall be made available at full face value pricing and charges, fees and taxes as applicable, including surcharges and commissions, to such City of Miami Beach residents ("Resident Tickets") in advance of ticket sales to the general public. Live Nation reserves the right to require proof of City residency including, but not limited to, government photo ID, utility bill, school ID or other similarly credible indicia of residency. For these purposes, the foregoing Resident Tickets shall be subject to the following rules: Resident Tickets shall be made available to City of Miami Beach residents at least two (2) calendar days preceding the date upon which tickets first go on sale to the general public and shall remain available for a period of at least one (1) week after the first day on which such tickets go on sale to the general public. All tickets shall be sold on a first come, first served basis and shall be available at the Facility box office. The type and location of seating for all tickets shall be determined by Live Nation in its sole discretion but shall include a full range of all ticket prices. Live Nation shall have the right to promulgate additional reasonable rules concerning such sales so long as same are consistent with the terms hereof to assure the efficient operation of the program and compliance with these terms and conditions. 2.5. Rights Reserved to City. (a) Rights of Entry. Representatives, contractors and employees of the City shall have the right to enter all portions of the Facility to inspect same, to observe the performance of Live Nation of its obligations under this Agreement, to install, remove, adjust; repair, replace or otherwise handle any equipment, utility lines, or other matters in, on, or about the Facility, or to do any act or thing which the City may be obligated or have the right to do under this Agreement. Nothing contained in this subparagraph is intended or shall be construed to limit any other rights of the City under this Agreement. The City shall not unreasonably interfere with the activities of Live Nation hereunder, and the City's actions shall be conducted such that disruption of Live Nation's work shall be kept to a minimum and there shall be no disruption of any Event by City (in its proprietary capacity of the foregoing shall not diminish any rights of City in its governmental capacity). Nothing in this Section shall be construed to impose upon the City any independent obligation to make repairs, replacements, alterations, additions or improvements or perform any maintenance or create any independent liability for any failure to do so. (b) Valet Parking. City reserves to itself and its contractors and designees (i) all rights to provide valet parking to the Facility, and (ii) all proceeds from the valet parking operations. City and its contractors and designees shall have the right to use the driveway entrance and areas located outside the entrance to the Facility for the valet parking operations and Live Nation shall not interfere with valet parking operations. With respect to any valet parking agreements executed by City after the Effective Date of this Agreement, City will include in such agreement a provision that obligates the valet parking companies to indemnify and hold Live Nation harmless from and against all claims resulting from the negligent acts or omissions of such companies and further obligates such companies to include Live Nation as an additional insured on their general liability insurance policies. Live Nation shall have no right to provide valet parking or to contract with other parties for valet parking with respect to the Facility. If Live Nation desires to prepurchase parking controlled by the City or to prepurchase valet parking, City Manager shall have the authority to negotiate and enter into such agreements with respect thereto as City Manager deems acceptable. -16- Within one year from the Commencement Date, the City and Live Nation shall negotiate terms and conditions of a Parking Agreement, which will set forth the process and the parties' respective rights and obligations regarding requests by Live Nation, and consideration by the City Manager, for prepurchase of valet spaces and/or self-parking spaces controlled by the City; provided, however, any Parking Agreement (and any subsequent amendments thereto) shall be subject to approval by the City Commission. (c) Si~na~e. The following provisions shall govern the name-in-title rights, interior naming rights, and the related signage rights with respect to the Facility: (i) Name-in-Title Rights; Exterior Si~nage. City reserves the name- in-title rights (i.e., the right to name the Facility) and all revenue derived therefrom. Notwithstanding the preceding sentence, Live Nation shall be permitted to change the name of the Facility to "The Fillmore Miami Beach at the Jackie Gleason Theater" if and only if the City Commission approves and adopts an ordinance amending Chapter 82, Article VI, Sections 82-501 through 82-505, as same may be amended from time to time (hereinafter, the "City's Naming Ordinance"), exempting the Facility from the requirements of the City's Naming Ordinance. In the event that the City Commission (1) does not pass and adopt the aforestated ordinance amending the City's Naming Ordinance, and (2) does not approve the change of name of the Facility to "The Fillmore Miami Beach at the Jackie Gleason Theater" by December 31, 2007, then Live Nation shall have the right to terminate this Agreement pursuant to Section 3.3(a) hereof. The City and Live Nation's mutual consent shall be required if the name of the Facility is changed to anything other than "The Fillmore Miami Beach at the Jackie Gleason Theater" (any such name change must be approved by a 5/7 vote of the City Commission). Live Nation agrees that if the name-in-title is changed to "Fillmore Miami Beach at the Jackie Gleason Theater," Live Nation shall bear all costs (as part of Operating Expenses) to obtain and install new signage and to remove the existing signage. Further, if the name-in-title is approved as stated herein, Live Nation agrees to utilize the full name of the Facility in its publications, advertising, promotions, websites, announcements, and other similar and related materials referring solely to the Facility, unless the use of the full name-in-title is otherwise not feasible due to size or space limitations on such publications, advertising, promotions, websites, announcements, and other similar and related materials, or outside of its direct control. All exterior signage shall be subject to City Manager's prior written approval as to size, location, materials and aesthetics. Live Nation shall have no right to install any other signage on the exterior of the Facility, except that Live Nation may use the existing marquis sign to advertise upcoming Events. City shall have no right to install or allow to be installed any signage on the exterior of the Facility without Live Nation's prior written approval as to size, location, materials, content and aesthetics. (ii) Interior Naming Rights; Interior Signage. Live Nation shall be entitled to all permanent (meaning for a specific area such as a .VIP lounge together with a duration in excess of twelve (12) months) interior signage (and all proceeds derived therefrom shall be Operating Revenues); provided, however, that the sponsorship names thereon are subject to City Manager's approval which shall not unreasonably be withheld, conditioned or delayed. -17- The sponsorship names on any such signage may include any of the names shown on Exhibit "G" hereto (all of which are deemed approved) or such other names as maybe approved by City Manager; provided, however, unless approved by City Commission, in no event may any such signage include the names of any company selling the following types of products ("Prohibited Names"): guns, tobacco or sexual products. Nothing contained herein shall preclude Live Nation from allowing sponsors of temporary events from using temporary banners and temporary signage within the Facility with respect to any Event so long as the banners and signage do not include any Prohibited Names. Live Nation shall be entitled to all interior signage (and all proceeds derived therefrom shall be Operating Revenues). (iii) General Requirements. All signage (interior, exterior, permanent and temporary) shall comply with all applicable Governmental Requirements, and shall be maintained by Live Nation in good condition. 3. Term and Renewal Term. 3.1. Term. The "Term" of this Agreement shall commence on June 21, 2007 ("Commencement Date") and end at midnight on August 31, 2017 ("Expiration Date"), unless earlier terminated pursuant to the provisions of this Agreement. Live Nation shall have the exclusive right to manage and operate the Facility from and after the Commencement Date subject to the terms of this Agreement. City shall instruct the current manager of the Facility to cooperate and assist Live Nation in effecting a smooth transition of the management of the Facility. No costs, fees or expenses of City under the current management agreement shall be included in Operating Expenses. 3.2. Renewal Option. Live Nation shall have the option to extend this Agreement for a period five (5) years following the Expiration Date ("First Renewal Term") provided that all of the following conditions are met: (i) not less than 270 days nor more than 730 days prior to the Expiration Date of this Agreement, Live Nation shall provide written notice to City ("Exercise Notice") stating that Live Nation desires to exercise the renewal option. Time shall be of the essence with respect to the Exercise Notice and if Live Nation fails to provide written notice as and when required, the renewal option shall expire and shall not thereafter be exercisable; and (ii) both at the time Live Nation delivers its Exercise Notice and at the time the First Renewal Term would otherwise commence, Live Nation shall not be in default under this Agreement. In the event the conditions of (i) and (ii) are not met, then and in that event this Agreement shall expire at the end of the initial Term (i.e., on the originally stated Expiration Date) and the provisions of Section 13.1 shall apply. -18- If, however, both conditions of (i) and (ii) are met, then and in that event this Agreement shall be renewed for the First Renewal Term on all of the same terms and conditions, except that the Required City Distribution for the first year of the First Renewal Term shall be adjusted as hereinafter provided, which amount shall thereafter be increased by two percent (2%) on January 1, 2019 and on each January 1 of the First Renewal Term (and the Excess City Distributions under Section 4.3(a) and (b) shall remain applicable). The Required City Distribution for the first Fiscal Year of the First Renewal Term shall mean the annual Required City Distribution in effect during the last Fiscal Year (or partial Fiscal Year) of the initial Term multiplied by a fraction, the numerator of which is the CPI in effect for June 2017 and the denominator of which is the CPI in effect for June 2007. The parties recognize that the Required City Distribution for the last year of the Term will already reflect a 2% per annum increase in the Required City Distributions in effect at the Commencement Date and they fully intend that such amount be increased by the cumulative increase in the cost of living that occurred over the initial Term. As used herein "CPI" means the consumer price index for all urban consumers. South Florida Area Average, all items (1982-1984 = 100) issued by the United States Department of Labor, Bureau of Labor Statistics, but if such index is discontinued, a comparable index that measures increases in the cost of living shall be substituted. If this Agreement has been renewed for the First Renewal Term, Live Nation shall have the option to renew this Agreement for an additional five (5) years.("Second Renewal Term") if and only if (a) Live Nation provides written notice to City of its desire to extend for the Second Renewal Term not earlier than twelve (12) months nor later than nine (9) months prior to the end of the First Renewal Term; and (b) Live Nation and City, each acting in their sole and absolute discretion, agree in writing upon all terms and provisions and Required City Distributions that will be applicable during the Second Renewal Term not later than six (6) months prior to the end of the First Renewal Term. 3.3. Live Nation's Early Termination. (a) Defeasance; Name-in-Title Change. Notwithstanding anything to the contrary contained in this Agreement, Live Nation shall have the right to terminate this Agreement upon either of the following occurrences: (i) if by December 31, 2007 City has not done -one of the following: (y) caused the existing Resort Tax bonds to be defeased so that the Facility is no longer security for such bonds; or (z) obtained the unqualified opinion (issued to both City and Live Nation) of the City's bond counsel that this Agreement does not violate the bond obligations and, therefore, defeasance is not required; or (ii) City Commission has not approved the ordinance amending the City's Naming Ordinance to exempt the Facility from the requirements of same and has not approved the change in the name of the Facility to "The Fillmore Miami Beach at the Jackie Gleason Theater" by December 31, 2007. If either (i) or (ii) occurs but Live Nation does not give written notice of termination on or before January 31, 2008 (time being of the essence), Live Nation shall irrevocably be deemed to have waived its option to terminate and the provisions of this Section 3.3(a) shall be void. If Live Nation timely exercises its right of termination, this Agreement shall be terminated as of January 31, 2008 and the provisions of Section 13.1 shall apply. -19- (b) Upgrade Consents. Live Nation shall also have the right to terminate this Agreement in the event Live Nation has promptly applied for and diligently attempted to obtain all Upgrades Consents but has failed to obtain the Upgrades Consents on or before February 1, 2008. If Live Nation is entitled to terminate this Agreement pursuant to this subparagraph 3.3(b) but Live Nation does not give written notice of termination on or before April 1, 2008 (time being of the essence), Live Nation shall irrevocably be deemed to have waived its option to terminate. If Live Nation timely exercises its right of termination, this Agreement shall be terminated as of the date that Live Nation provides its written notice of termination and the provisions of Section 13.1 shall apply. 4. Live Nation's Compensation; City Distributions. 4.1. Management Fee. (a) As consideration to Live Nation for providing the services herein specified during the Term, Live Nation shall receive from the Net Operating Profit the amounts described in (i) and (ii) below: (i) an annual management fee for each Fiscal Year (but prorated for partial Fiscal Years) in the amount of $400,000 (the "Management Fee"), which Management Fee shall be adjusted upward on January 1, 2009 and on the first day of each Fiscal Year thereafter by two percent (2%); and (ii) as an incentive for Live Nation to operate and manage the Facility in a profitable manner so as to achieve the Required City Distributions and possibly the City Excess Distributions, then after the disbursements of the Required City Distributions and Excess City Distributions and the Management Fee, Live National shall be entitled to retain the remaining Net Operating Profit for such Fiscal Year (the "Bonus"). By March 31 of each calendar year, Live Nation shall provide to City an accounting of the Operating Expenses and Operating Revenues for the prior Fiscal Year and reconciliation of Management Fees, Required City Distribution, Excess City Distributions, and any other disbursements from the Net Operating Revenues for such Fiscal Year. (b) The Management Fee shall be payable in equal monthly installments due on or before the last day of each month during each Fiscal Year, and Live Nation shall be entitled to draw such amounts from the account established pursuant to Section 5.3. The Bonus shall be paid to Live Nation from the account established pursuant to Section 5.3 within thirty (30) days following the annual reconciliation made pursuant to subparagraph (a)(ii). (c) Live Nation's right to receive the Management Fee and Bonus are both subject and subordinate to City's rights to receive all amounts pursuant to Sections 4.2, 4.3 and 5.1. Live Nation shall not receive any payments for the Management Fee unless City has received its payments under Sections 4.2 and 4.3. 4.2. Required City Distribution. Live Nation shall distribute to City the Required City Distribution in annual payments in advance, the first of which shall be due and payable thirty ,~. (30) days after the Commencement Date and each subsequent installment shall be due on January 1 of each Fiscal Year. Such amounts shall be distributed from Operating Revenues if -20- and to the extent sufficient funds are available therefor but shall otherwise be paid to City from Live Nation's own funds pursuant to Section 5.1. Each installment of Required City Distributions shall be distributed or paid to City, without setoff, reduction or abatement. 4.3. Excess Cit~Distribution. In addition to the Required City Distribution, the City shall receive additional disbursements ("Excess City Distributions") as follows: (a) Ticket Sales. Within sixty (60) days after the conclusion of each full or partial Fiscal Year during the Term, Live Nation shall notify City in writing of the total number of "True Tickets" (hereafter defined) for Events in the Facility during the Fiscal Year or partial Fiscal Year. If the total number of True Tickets exceeds 240,000 True Tickets (but the 240,000 threshold shall be prorated for partial Fiscal Years), then, the notice from Live Nation to City shall be accompanied by a disbursement to the City ("Bonus on Excess Ticket Sales"), in an amount equal to the product of One Dollar ($1.00) multiplied by the total number of True Tickets in excess of 240,000 (thus for example, if there were 250,000 True Tickets, the amount would be $10,000). For these purposes, "True Tickets" (or separately, a "True Ticket") shall refer to each ticket sold to a customer for an Event promoted or presented by Live Nation (or its affiliate) during the applicable Fiscal Year, provided such ticket is not for "City Use," "Charitable Use," "City Playground Review Use," "Complimentary Tickets," "School Complimentary Tickets," "Community Needs Auction," "Community Benefit Fund," or for any Event which occurs by reason of any third-party rental of parts or all of the Facility (for purposes of this Section 4.3, a "third party rental" shall mean a rental to any party other than an "affiliate" of Live Nation and an "affiliate" of Live Nation shall refer to any related entity, subsidiary, or parent entity of Live Nation or Live Nation's parent entity). (b) Bonus on Events. Within sixty (60) days after the conclusion of each full or partial Fiscal Year during the Term, Live Nation shall notify City in writing of the total number of Events held in the Facility other than those specifically excluded as hereinafter provided ("True Events"). If the total number of True Events exceeds 173 True Events (prorated for partial Fiscal Years), then the notice from Live Nation to City shall be accompanied by a disbursement to City ("Bonus on Events") in an amount equal to the product of Two Thousand Dollars ($2,000) multiplied by the total number of True Events in excess of 173 (but prorated for partial Fiscal Years) (thus for example, if there were 188 True Events, the amount would be $30,000) (all True Events in excess of 173 are herein referred to as "Bonus Events" or separately as a "Bonus Event"). Notwithstanding anything to the contrary contained in this Section, True Events shall not include "City Use," "Charitable Use," "City Playground Review Use," or "Community Needs Auction." True Events shall include third party rentals except for third party rentals for which the Facility is used for purposes different from the types of Events promoted or produced by Live Nation (e.g., commercial live performances by national or international talent). (c) Amounts to be paid to City pursuant to (a) and (b) above shall be distributed from Operating Revenues if and to the extent sufficient funds are available therefor but shall otherwise be disbursed by Live Nation to City from Live Nation's own funds pursuant to Section 5.1 hereof. All such amounts shall be distributed or paid to City, without setoff, reduction, or abatement. ,~. -Z1 - (d) At the end of each five (5) year period during the Term, City may request that Live Nation modify the Excess City Distributions under Section 4.3(a) and 4.3(b) to increase the amount payable to City. Live Nation will consider any such request but shall have no obligation to accommodate City's request. 5. Funding; Budgets; Bank Accounts; Alterations. 5.1. Live Nation Funding Guaranty. Live Nation hereby irrevocably and unconditionally guaranties to City that Operating Revenues shall at all times be sufficient to pay as and when due all Operating Expenses, the Required City Distributions pursuant to Section 4.2, and the Excess City Distributions pursuant to Section 4.3 and all other amounts that Live Nation is obligated to pay pursuant to this Agreement. Live Nation hereby covenants and agrees that if at any time there are insufficient Operating Revenues to pay all of the foregoing amounts as and when required, Live Nation shall immediately pay the difference from Live Nation's own funds. The foregoing obligation is absolute and unconditional and shall apply even if Operating Revenues are reduced or limited by facts or circumstances not contemplated by the parties or for reasons beyond the parties' control. The foregoing constitutes a guaranty of payment and not of collection. To the extent Live Nation makes any such payment, Live Nation shall be entitled to reimbursement from Net Operating Profit as and when sufficient funds axe available. Live Nation agrees, however, that upon any expiration or termination of this Agreement, Live Nation shall pay from its own funds all Operating Expenses, Required City Distributions, Excess City Distributions, and all other amounts required to be paid pursuant to this Agreement through the date of expiration or termination (and shall be entitled to reimbursement for any prepaid Required City Reimbursement attributable to periods after the expiration or termination date). From and after the date of expiration or termination, Live Nation shall not be entitled to any reimbursement for any such payments and Live Nation hereby irrevocably waives any right to seek any such reimbursement. The provisions of this Section 5.1 shall survive any expiration or termination of this Agreement. 5.2. Non-Funding by City. (a) City shall have no obligation to provide funds for the payment of Operating Expenses and shall be entitled to receive the Required City Distributions and the Excess City Distributions from Live Nation even when Operating Revenues are insufficient. (b) City will have no funding or other payment obligations with respect to the Facility or its Operating Expenses or its operations other than the costs of (i) the City Work; (ii) the other costs which City has specifically agreed to pay under the terms of this Agreement; and (iii) if and to the extent incurred, the Operating Expense Exclusions. Live Nation and City have entered into this Agreement with the expectation and belief that no governmental body will impose any ad valorem taxes upon the Facility nor any sales, income, excise or other taxes upon the Required City Distributions or the Excess City Distributions (collectively "Termination Obligations"). In the event any governmental body asserts that any Termination Obligations are due for a Fiscal Year or part thereof, then City shall have the right, at any time thereafter to terminate this Agreement upon not less than thirty (30) days prior written notice to Live Nation ("Termination Notice"). In the event City does not exercise its termination right for a Fiscal ~• Year with respect to which Termination Obligations were imposed, City shall nevertheless retain - 22 - its right of termination and may elect to terminate in the event that any Termination Obligations are imposed with respect to any subsequent Fiscal Year (i.e., waiver of termination with respect to any particular Fiscal Year shall not constitute waiver for any subsequent Fiscal Year). If City exercises its termination option, the following shall occur: (a) this Agreement shall terminate upon the date specified by City in the Termination Notice; (b) Live Nation shall pay all amounts owed under this Agreement through the date of termination including all Operating Expenses and the Required City Distribution and Excess City Distributions (including any amounts required to be advanced by Live Nation pursuant to Section 5.1); and (c) City shall pay to Live Nation a "Termination Payment" as hereafter defined. The Termination Payment shall be an amount equal to the unamortized hard and soft costs of the Upgrades as of the Termination Date. The unamortized cost shall be determined by amortizing the total costs (up to but not exceeding $3,500,000) paid or incurred by Live Nation for the Upgrades on a straight line basis (without interest) over the period from the date when the costs were incurred over the then-remaining Term of this Agreement. Live Nation shall be entitled to the Termination Payment only if this Agreement is terminated pursuant to this Section 5.2(b) or Section 3.3(a) or Section 15.5(c) and not if termination occurs for any other reason. If the City terminates this Agreement as provided above, then in addition to the payment of the Termination Payment the City shall reimburse to Live Nation that portion of the Required City Distribution which has been prepaid by Live Nation for the remainder of the Fiscal Year, with the reimbursement and the payment of the Termination Payment to be made within thirty (30) days after the termination date. The provisions of this Section regarding the above reimbursement and payment obligations of the City shall survive the termination of this Agreement. 5.3. Receipts and Disbursements. Live Nation shall establish and maintain in one or more depositories one or more operating, payroll and other bank accounts for the promotion, operation and management of the Facility, as Live Nation shall determine. All Operating Revenues collected by Live Nation from the operation of the Facility shall be deposited into the accounts and all Operating Expenses shall be paid by Live Nation as agent for the City from the accounts. Any amounts remaining in the Operating Accounts upon termination of this Agreement for any reason, after payment of all Operating Expenses, Required City Distributions and any Excess City Distributions and all other amounts that Live Nation is required to pay under this Agreement through the date of expiration or termination shall be promptly paid to Live Nation. 5.4. Alterations. (a) Live Nation shall not make any additions, improvements, or alterations (collectively "Alterations") to the Facility without City Manager's prior written consent, except, however, that City Manager's consent shall not be required with respect to (i) the Upgrades to be made by Live Nation pursuant to subparagraph 5.4(b)(ii) below; or (ii) Alterations required by Governmental Requirements; or (iii) nonstructural Alterations that are not visible from the exterior and do not in the aggregate cost more than $400;000 for a specific project. The costs of all Alterations made by Live Nation for purposes of complying with Governmental Requirements or that are necessary for the maintenance of the Facility shall be Operating Expenses. The costs of all other Alterations made by Live Nation shall be borne solely by Live Nation from its own funds and shall not constitute Operating Expenses. City Manager shall not ''~' unreasonably withhold, condition or delay his/her its consent to any Alterations except that City - 23 - Manager may withhold its consent in its sole and absolute discretion with respect to any Alterations that change the structural elements or life-saving systems or that affect the exterior of the Facility. Notwithstanding anything to the contrary, however, Live Nation shall not under any circumstances be permitted to make any Alterations that: (i) adversely affect the structural portions of the Facility, or (ii) fail to comply with any applicable Governmental Requirements, or (iii) interfere in any material manner with the proper functioning of any mechanical, electrical, plumbing, HVAC, life safety or other systems, facilities or equipment of the Facility. (b) The parties agree that the following work will be done by the respective parties at their sole cost and expense and not as part of Operating Expenses: (i) Live Nation covenants and agrees to perform the remodeling, upgrade and improvements to the Facility as more particularly described in Exhibit "C" (such work is herein referred to as the "Upgrade" or "Upgrades") pursuant to the following terms: Concept plans shall be submitted by Live Nation to City Manager for his/her consent (not to be unreasonably withheld, conditioned, or delayed) not later than ninety (90) days after the date of this Agreement (whereupon same shall be deemed a part hereof) (the "Concept Plans"). The Concept Plans shall be consistent with Exhibit "C" in all respects and with the purposes, rights and obligations under this Agreement and shall generally reflect, but not necessarily to scale and without the level of detail and specifics found in final plans and specifications, the overall anticipated scope of Upgrades to be constructed by Live Nation. Prior to submitting an application for a building permit for Upgrades) Live Nation shall develop or cause to be developed construction plans and specifications, which shall be consistent with. the Concept Plans approved by City Manager (collectively, the "Plans"). The Plans shall include all of the specific capital improvements described on Exhibit "C," all of which Live Nation shall complete on or before December 31, 2009, subject to the terms of this subparagraph 5.4(b)(i). Live Nation shall expend not less than $3,500,000, including both hard costs and soft costs (the "Cap") to complete the Upgrades; provided, however, Live Nation agrees to complete the Upgrades in the order of priority shown on Exhibit "C." Accordingly, the Cap shall .first be expended towards Priority 1 until completed, then Priority 2 until completed, etc. Notwithstanding anything to the contrary, upon achieving the Cap, Live Nation will be deemed to have satisfied its obligations hereunder with respect to the Upgrades even if all Upgrades have not then been completed. The parties agree that prosecution of the Upgrades may proceed in phases calculated to minimize interference with portions of the Facility so as to allow the continued use of the Facility for the permitted uses throughout the prosecution of the Upgrades as Live Nation shall determine, in its sole discretion, from time to time. Live Nation will obtain the approval of final Plans by any and all federal, state, municipal and other governmental authorities, offices and departments having jurisdiction in the matter, as required and necessary. Live Nation will complete all Upgrades in a good and workmanlike manner and in accordance with all applicable Governmental Requirements. Any general contractor performing any Upgrades shall be subject to approval by City Manager, such consent not to be unreasonably withheld, conditioned or delayed. (ii) The following will be considered "City Work": all work as described in and subject to the terms of Exhibit "B" attached hereto and made a part hereof. The City Work shall be performed and completed by City pursuant to a schedule as agreed upon by '~- City Manager and Live Nation and in such a manner as to not cause unreasonable interference or - 24 - delay in Live Nation's performance of the Upgrades, but in any event the City Work shall be completed by the dates set forth on Exhibit "B." (c) Live Nation shall obtain all required permits for Upgrades and all other Alterations performed by, through or under Live Nation and shall perform or cause to be performed such Alterations in compliance with .all Governmental Requirements. Under no circumstances shall Live Nation make any Alterations which incorporate any Hazardous Substances including, without limitation, asbestos-containing construction materials, into the Facility. Any request for City Manager's consent to any proposed Alterations by, through or under Live Nation shall be made in writing and shall contain plans or other written materials describing the work in detail reasonably satisfactory to City Manager, provided that architectural plans shall not be required unless required for the issuance of a building permit. City Manager shall provide or deny consent within twenty (20) business days following receipt of Live Nation's written request, the failure to provide or deny consent within such twenty (20) business day period shall be deemed a consent. Should the work proposed by Live Nation and consented to by City Manager modify the basic floor plan of the Facility and the building permit therefor require architectural plans, then Live Nation shall, at its expense, fixrnish City with as-built drawings and CAD disks for such work. Unless City Manager otherwise agrees in writing, all Alterations made or affixed to the Facility (excluding moveable trade fixtures, equipment, personal property and furniture) (including without limitation, all Upgrades constructed pursuant to subparagraph (b)), shall become the property of City and shall be surrendered with the Facility at the expiration or termination of this Agreement. With respect to Alterations costing in excess of $200,000 City Manager may require Live Nation to obtain a payment bond for the work. 6. Records, Audits and Reports. 6.1. Records and Audits. (a) Live Nation shall keep full and accurate accounting books and records relating to all Operating Revenues and Operating Expenses and all True Tickets sold and True Events held, all in accordance with generally accepted accounting principles. Live Nation shall give the City's authorized representatives access to such books and records during reasonable business hours and upon reasonable advance notice. All books and records shall be made available on-site at the Facility or electronically. Live Nation shall keep and preserve for at least three (3) years following each Fiscal Year or for as long as such records are required to be retained pursuant to Florida Public Records Law, all sales slips, rental agreements, purchase order, sales books, credit card invoices, bank books or duplicate deposit slips, and other evidence of Operating Revenues and Operating Expenses for such period. In addition, on or before March 31 following each Fiscal Year (commencing March 31, 2008), Live Nation shall furnish to the City a line item (i.e., by categories) statement of Operating Costs and Operating Revenues (and profit or loss) for the Facility for the preceding Fiscal Year and including the number of True Tickets sold and True Events held, prepared in accordance with generally accepted accounting principles certified as accurate by Live Nation's Chief Accounting Officer or Chief Financial Officer. (b) City Manager shall have the right at any time, and from time to time, to ~- cause independent auditors or City's own accountants or auditors to audit all of the books of Live - 25 - Nation relating to Operating Revenues, Operating Expenses, True Tickets and True Events including, without limitation, cash register tapes, credit card invoices, duplicate deposit tapes, and invoices. No costs incurred by the City in conducting such audit shall be considered an Operating Expense. The City's right to have an audit made with respect to any Fiscal Year and Live Nation's obligation to retain the above records shall expire three (3) years after Live Nation's statement for such Fiscal Year has been delivered to the City. 6.2. Annual Plan. Commencing March 1, 2008, Live Nation shall provide to the City on or before March 1 of each year, an annual management plan, which shall include the annual operating budget for the then current Fiscal Year but may not have a complete booking plan. The annual plan shall include information regarding Live Nation's anticipated operations for such Fiscal Year, including planned operating and maintenance activities, anticipated capital improvements and capital equipment purchases and an anticipated budget therefor, anticipated Events at the Facility (to the extent known at such time), and planned equipment and furnishings purchases. Live Nation shall have the right from time to time to make any changes it deems necessary or appropriate to any such annual plan so long as the annual plan is consistent with Live Nation's fulfillment of its obligations hereunder. 7. Employees. 7.1. Live Nation Employees. (a) Live Nation shall select, train and employ at the Facility such number of employees as is necessary or appropriate for Live Nation to satisfy its responsibilities hereunder; Live Nation shall recruit employees consistent with standards employed at comparable first class facilities operated by Live Nation on the Commencement Date, and Live Nation shall have authority to hire, terminate and discipline any and all personnel employed by Live Nation working at the Facility. (b) Live Nation shall assign to the Facility a competent full-time general manager experienced in operating and managing similar facilities, who will be located full time on-site during the Term. From time to time the general manager may provide assistance in connection with consulting andlor management services provided by Live Nation or any of its Affiliates at other facilities managed, owned or leased by Live Nation or any of its Affiliates so long as such assistance does not affect in any material respect the responsibilities and duties of the general manager to the Facility. Prior to Live Nation's appointment of the general manager, Live Nation shall consult with the City Manager with respect to the qualifications of the general manager proposed by Live Nation. The general manager shall be accessible to City Manager or designee at all reasonable times to discuss the management, operation and maintenance of the Facility. "Accessible" shall mean available either in person, by telephone and/or e-mail during business and/or operation hours and within a reasonable time frame during non-business hours in the event of emergency. Consistent failure by the general manager to be accessible shall be reported to Bruce Eskowitz and/or James Tucker or their successors and if not rectified shall be grounds for replacement of the general manager. City Manager may also request that general manager be replaced for other reasons and Live Nation shall duly consider all such requests but shall not be obligated to replace the general manager. ~- -26- (c) The general manager and/or any and all other Live Nation employees at the Facility shall not. for any purpose be considered to be employees of the City, and Live Nation shall be solely responsible for their supervision and daily direction and control and for setting and paying as an Operating Expense their compensation (and federal income tax withholding) and any employee benefits. 7.2. No Solicitation or Employment by City. During the period commencing on the date hereof and ending one (1) year after the expiration or termination of this Agreement, except with Live Nation's prior written consent, the City will not, for any reason, solicit for employment, or hire, any of the senior management personnel employed by Live Nation at the Facility, including, without limitation, the general manager, director-level employees and department heads (including, without limitation, the food and beverage manager). In addition to any other remedies which Live Nation may have, specific performance in the form of injunctive relief shall be available for the enforcement of this provision. 8. Indemnification and Insurance. 8.1. Indemnification. (a) Live Nation shall indemnify, hold harmless and defend (with counsel approved by City Attorney) the City, its officers, agents, servants and employees from and against any and all claims, liabilities, demands, causes of action, costs and expenses (including reasonable attorneys' fees at trial and all levels of appeal) of whatsoever kind or nature ("Claims") arising out of (i) error, omission or negligent act or willful misconduct of Live Nation, its agents, servants, contractors, or employees; (ii) any default by Live Nation under this Agreement; or (iii) any other claim arising, directly or indirectly, from the operation or management of the Facility or any Event held therein or rental or use of the Facility; provided that there is expressly excluded from the foregoing obligations any Claims to the extent resulting from the acts or negligence of the City, its officers, agents (excluding Live Nation), contractors (excluding Live Nation) and employees or the use of the Facility by the City, its officers, agents (excluding Live Nation), and employees. (b) The provisions of this Section 8.1 shall survive expiration or termination of this Agreement. 8.2. Liability Insurance. (a) Live Nation shall secure (and deliver to City Manager certificates thereof) prior to the Commencement Date and shall keep in force at all times during the Term of this Agreement a commercial liability insurance policy, including public liability and property damage, covering the Facility .and the operations hereunder, in the amount of Ten Million Dollars ($10,000,000.00) for bodily injury and Five Million Dollars ($5,000,000.00) for property damage, including products and completed operations and independent contractors. Live Nation shall also maintain Umbrella liability insurance with a limit of Twenty Million Dollars ($20,000,000). (b) Live Nation shall also maintain during the Term Comprehensive Automotive Bodily Injury and Property Damage Insurance for business use covering all vehicles ~. - 27 - operated by Live Nation officers, agents and employees in connection with the Facility, whether owned by Live Nation, the City, or otherwise, with a combined single limit of not less than Two Million Dollars ($2,000,000.00) per occurrence (including an extension of hired and non-owned coverage). (c) Commencing with the Commencement Date of the Term and continuing thereafter during the Term hereof, Live Nation shall also maintain: (i) contingent liquor liability insurance in the amount of Five Million Dollars ($5,000,000.00); and (ii) personal advertising liability insurance in the amount of Two Million Dollars ($2,000,000.00). (d) Live Nation shall be the named insured under all such policies. The City shall be an additional insured under the insurance policies described in Section 8.2(a), (b) and (c), above, as its interests may appear, and all of the insurance policies described in this Section 8.2 shall contain a provision covering the indemnification liabilities hereunder. 8.3. Worker's Compensation Insurance. Live Nation shall at all times maintain worker's compensation insurance (including occupational disease hazards) with an authorized insurance company or through the Florida State Compensation Insurance Fund or through an authorized self-insurance plan approved by the State of Florida, insuring its employees at the Facility in amounts equal to or greater than required under law. The foregoing is not intended to require Live Nation to cover occupational related diseases of any City employees who provide any services at the Facility as a part-time employee of Live Nation except to the extent that such disease is demonstrated to be directly related to their work at the Facility. 8.4. Property Insurance. (a) Property Insurance. Live Nation shall maintain in full force and effect during the entire Term insurance on the Facility (including, without limitation, all Alterations) and all fixtures, equipment and personal property at the Facility under an "All Risks of Physical Loss" policy (hereinafter referred to as "All Risks") including, without limitation, coverage for loss or damage by fire, water, windstorm, flood, subsidence and sprinkler damage; such insurance to be written with full replacement coverage (the "Replacement Value"), i.e., in an amount equal to the greater of (1) 100% of the full costs of replacement of the Facility and such fixtures, equipment and personal property (less the cost of excavations, foundations and footings), or (2) an amount sufficient to prevent City from becoming a co-insurer of any loss under the applicable policy. The insurance company's determination of the amount of coverage required in clause (1) above shall be binding and conclusive on City and Live Nation for purposes of the coverage required by clause (1). If not otherwise included within the "All Risks" coverage specified above, Live Nation shall carry or cause to be carried, by endorsement to such "All Risks" policy, coverage against damage due to water and sprinkler leakage, flood and collapse. ~. - 28 - (b) Builder's Risk. Live Nation shall also carry Builder's Risk Insurance during any period of construction or improvements or Alterations by, through or under Live Nation. 8.5. General Requirements. All insurance provided for in this Article 8 shall be in such form and shall be issued by such- responsible insurance companies licensed to do business in the State of Florida with companies having a rating of A-7 or better in Best's Insurance Guide as published by A.M. Best and Company. Such insurance maybe carried under blanket policies that include other properties so long as the policies provide separate coverage for the Facility. Upon the execution of this Agreement, and, thereafter, not less than thirty (30) days prior to the expiration dates of the expiring policies required pursuant to this Article 8, originals of the policies or certificates or renewal certificates, as the case may be, bearing notations evidencing the payment of premiums or accompanied by other evidence reasonably satisfactory to City of such payment, shall be delivered by Live Nation to City and any fee mortgagee. All policies of insurance provided for in Section 8.4 shall name City as an insured party and loss payee and City shall be entitled to all proceeds thereof. Each policy of insurance required to be carried pursuant to the provisions of Article 8 shall contain (i) a provision that no act or omission of City or Live Nation shall affect or limit the obligation of the insurance company to pay the amount of any loss sustained, (ii) an agreement by the insurer that such policy shall not be cancelled, modified or denied renewal without at least thirty (30) days prior written notice to City, (iii) a waiver of subrogation by the insurer, and (iv) deductibles which do not exceed deductions for similar facilities. All insurance procured by Live Nation in accordance with the requirements of this Agreement including insurance provided under 8.2, 8.3 and 8.4 shall be primary over any insurance carried by the City and not require contribution by the City. 8.6. Certain Other Insurance. If any of the City Agreements with third parties consist of agreements with independent contractors to provide services in respect of the Facility, the City shall use reasonable efforts to cause such contractors to name Live Nation as an additional insured under any insurance maintained by such contractors pursuant to the terms of such City Agreements and in such event to deliver to Live Nation promptly after request therefor a certified copy of the policy and a certificate evidencing the existence thereof. In addition, if Live Nation enters into any agreements during the term of this Agreement with any independent contractors for the provision of services hereunder, Live Nation shall require the contractors to name Live Nation and City as additional insureds under any insurance required by Live Nation thereunder and to deliver to Live Nation and City prior to the performance of such services a certificate evidencing the existence thereof. 9. Ownership of Assets. 9.1. Ownership. The ownership of the Facility and all buildings and real estate, all existing (and replacements thereof) technical and office equipment and facilities, furniture, displays, fixtures, vehicles and similar tangible property located at the Facility shall remain with the City. Ownership of and title to all intellectual property rights of whatsoever value held in the City's name shall remain in the name of the City. The ownership of consumable assets (such as office supplies and cleaning materials), personal property, equipment and fixtures purchased - 29 - with Operating Revenues or City funds shall remain with the City, but such assets purchased with Operating Revenues may be utilized and consumed by Live Nation in the performance of services under this Agreement. The ownership of data processing programs and software owned by the City shall remain with the City, and the ownership of data processing programs and software owned by Live Nation shall remain with Live Nation. Live Nation shall not take or use, for its own purposes, customer lists or similar materials developed by the City for the use of the Facility, unless written consent is granted by the City Manager. Ownership of equipment, furnishings, materials, or fixtures not considered to be real property purchased by Live Nation with Operating Revenues for use at and for the Facility shall vest in the City automatically and immediately upon purchase or acquisition, except for those items which by the terms of this Agreement shall remain the property of Live Nation. The assets of the City as described herein shall not be pledged, liened, encumbered or otherwise alienated or assigned. Notwithstanding anything to the contrary contained in this Agreement, any personalty, furnishings, and movable equipment that is not a fixture and is not integral to the operation of the Facility purchased by Live Nation and used at the Facility shall be the sole property of Live Nation. 9.2. Cit~Obli atg ions. Except as otherwise set forth in this Agreement, throughout the Term, the City will maintain full beneficial use and ownership of the Facility and will pay, keep, observe and perform all payments, terms, covenants, conditions and obligations under any bonds, debentures or other security agreements or contracts relating to the Facility to which the City maybe bound. In addition,-the City shall provide Live Nation with necessary office space in the Facility and such equipment as is currently available in the Facility. Furthermore, the City (in its proprietary capacity) shall allow Live Nation unrestricted egress and ingress to the Facility and Live Nation shall have the right to park at no cost in the parking spaces that are included within the meaning of the "Facility" as defined herein. Except as defined as part of the Facility, all parking lots and garages adjacent to the Facility are excluded from the scope of this Agreement. Notwithstanding anything to the contrary contained herein, in order to promote the most profitable operation of the Facility, City hereby acknowledges and agrees that Live Nation will have exclusive control over the use of the Facility during the Term, subject to the conditions and limitations of this Agreement. 10. Assignment; Affiliates. 10.1. Assignment: (a) Except as otherwise specifically provided in this Section 10.1, Live Nation may not voluntarily or by operation of law, assign, encumber, pledge or otherwise transfer all or any part of Live Nation's interest in this Agreement (except that Live Nation may encumber, pledge or otherwise transfer its proceeds and distributions under this Agreement and may encumber, pledge or otherwise transfer its interests under this Agreement provided that no other person or entity may operate or manage the Facility as a result of any such encumbrance, pledge or other transfer or the foreclosure of any security interest) or subcontract its management duties hereunder without City's prior written consent, which may be granted or withheld in City's sole and absolute discretion. Any attempt by Live Nation to assign all or any part of its interest and any attempt to subcontract its management duties hereunder without first having obtained City's prior written approval (except as otherwise specifically provided in this Section 10.1) shall be ^`~ void and of no force or effect. In the event of any assignment, transfer, encumbrance or -30- subcontract, Live Nation shall nevertheless remain liable for all obligations hereunder and the transferee shall be jointly and severally liable for all obligations thereafter arising under this Agreement. Any transfer of a controlling interest in Live Nation (whether in a single transaction or multiple transactions) shall be considered an assignment of this Agreement. Live Nation specifically recognizes that City selected Live Nation to be the manager of the Facility as a result of the City's evaluation of Live Nation's specific. qualifications and experience in operating similar first class facilities. (b) Notwithstanding anything to the contrary contained herein, Live Nation shall have the right to assign or transfer this Agreement without the necessity of City's consent to an Affiliate that has Tangible Net Worth of not less than Twenty-Five Million Dollars ($25,000,000) provided that Live Nation and Affiliate execute and deliver to City an agreement pursuant to which the Affiliate assumes all obligations under this Agreement arising subsequent to the assignment or transfer and Live Nation acknowledges that it remains jointly and severally liable for all such obligations. (c) Live Nation shall also have the right to assign or transfer this Agreement to any of the following (each a "Transferee"): (i) a successor entity arising from the purchase of, or merger or consolidation with Live Nation; or (ii) an entity that purchases substantially all of the assets of Live Nation, provided in either case all of the following conditions are met: 1. The Transferee has a Tangible Net Worth in excess of $25,000,000; 2. simultaneous with the transfer, the Transferee is acquiring not less than five (5) other live entertainment venues owned or operated by Live Nation or its Affiliates; 3. The Transferee has not less than five (5) years' experience in operating similar live entertainment venues internationally, nationally or regionally (meaning operating not less than five (5) live entertainment venues in multiple states or countries during such five (5) year period); 4. Live Nation and the Transferee shall execute an instrument pursuant to which the Transferee assumes all obligations thereafter arising and Live Nation acknowledges its joint and several liability for all such obligations; 5. In City Manager's reasonable determination, the Transferee has a good reputation for operating venues similar to the Facility and is an appropriate manager and operator for the Facility. City Manager shall ~~` advise Live Nation in writing whether or not this condition 5 has been met -31 - within sixty (60) days after having received such information as City Manager shall reasonably request to make the determination. If Manager does not advise Live Nation that the Transferee is unacceptable within such sixty (60) day period, time being of the essence, this condition 5 shall be deemed satisfied. In the event City Manager advises Live Nation in writing ("Manager's Notice") that this condition 5 has not been met and, if conditions 1, 2 and 3 have been met, then and in that event, Live Nation shall have the right to terminate this Agreement by written notice ("Termination Notice") to City Manager given within thirty (30) days after the date of Manager's Notice, time being of the essence. Live Nation's failure to deliver the Termination Notice within thirty (30) days after Manager's Notice shall irrevocably constitute Live Nation's waiver of its right to terminate. If Live Nation timely delivers its Termination Notice, then .and in that event, all of the following shall apply: (A) Live Nation shall continue as operator and manager under this Agreement and shall pay all amounts and perform all obligations hereunder until six (6) months thereafter or until City advises Live Nation to cease its operations (the earlier of such dates "Termination Date"); (B) Live Nation shall vacate the Facility and return it to City on the Termination Date and all provisions of Section 13.1 shall apply; provided, however, Live Nation shall not be entitled to a return of any prepaid Required City Distributions (it being agreed that such prepaid amounts shall constitute a termination payment to City). (d) The provisions of subparagraph (a) above shall not prevent Live Nation in the performance of its management duties hereunder to grant licenses and concessions and rental agreements for Events and entering into a concessions agreement for the concession operations at the Facility. 10.2. Live Nation Affiliates. (a) Transactions with Affiliates. In connection with its management responsibilities hereunder relating to the purchase and/or procurement of equipment, materials, supplies, inventories, and services for the Facility, Live Nation shall have the right, but not the obligation, to purchase and/or procure from, or otherwise transact business with, an Affiliate of Live Nation. (b) Conflicts of Interest; Non-Compete. The City acknowledges that Live Nation manages other public assembly facilities which may, from time to time, be in competition with the Facility. The management of competing facilities will not be deemed a conflict of interest or breach of Live Nation's duties hereunder; provided, however, Live Nation agrees that neither Live Nation nor any of its Affiliates shall own, operate or lease an indoor live music ~- entertainment venue with a capacity of 2,500 - 3,000 within a twenty (20) mile radius of the - 32 - Facility, but the foregoing restriction does not preclude providing booking services and Live Nation shall be permitted to provide booking services without restriction nor does the foregoing restriction apply to operations of Live Nation or its Affiliates in existence as of the Effective Date. In addition to any other remedies- that City may have for violation of this subparagraph 10.2(b), City shall be entitled to specific performance, injunctive relief, and other remedies available at law or in equity. City agrees that Live Nation may operate competing businesses or activities (including, without limitation, providing services as are required under this Agreement) except to the extent specifically provided in this Section 10.2(b) and City waives any rights to object thereto. Notwithstanding anything to the contrary contained in this Agreement, City hereby acknowledges and agrees that to the maximum extent permitted by law, City waives any implied duty of loyalty or care arising under agency law out of an agency relationship, and in the event the foregoing waiver is not allowed by law or is limited by law City hereby agrees that such implied duties are hereby modified to the maximum extent allowed by law to allow for Live Nation to compete in any business activity or venture without a duty to City of loyalty or care; provided the foregoing waiver and modification shall not release Live Nation from the restriction set forth in this subparagraph 10.2(b) or from any other provisions of this Agreement. 11. Laws and Permits. 11.1. Permits, Licenses, Taxes and Liens. Live Nation shall procure any and all permits and licenses required for the performance of its duties hereunder and for the operation of the Facility and for the conduct of Events in Facility. City in its proprietary capacity shall cooperate with Live Nation in applying for such permits and licenses. Live Nation shall deliver copies of all such permits and licenses to the City Manager. Live Nation shall pay promptly, out of the Operating Revenues, all sales taxes, excises, license fees and permit fees of whatever nature arising from its operation, promotion and management of the Facility. Live Nation shall not permit any mechanic's or materialman's or any other lien to become attached to the Facility, or any part or parcel thereof, by reason of any work or labor performed or materials furnished by any mechanic or materialman, so long as the work, labor or material was provided by, through, or under Live Nation. Live Nation shall cause all obligations for payment for work performed on services furnished to the Facility by, through or under Live Nation to be paid as and when due. 11.2. Government Compliance. Subject to the terms of this Agreement, Live Nation, its officers, agents and employees shall comply with all Governmental Requirements with respect to the operation, management and maintenance of the Facility. The foregoing includes the obligation to make improvements or Alterations (structural and non-structural, and capital and non-capital) as required by governmental authorities, the cost of which shall be included in Operating Expenses. Live Nation shall require any licensee, promoter or user of any portion of the Facility to comply, and to be financially responsible for compliance, with all Governmental Requirements. Notwithstanding anything to the contrary contained in this Agreement, Live Nation shall not be obligated or liable for any matter which is an Operating Expense Exclusion. 11.3. No Discrimination in Employment; Affirmative Action. In connection with the performance of work under this Agreement, Live Nation shall not refuse to hire, discharge, refuse to promote or demote, or to discriminate in matters of compensation against, any person - 33 - otherwise qualified, solely because of race, color, religion, gender, age, national origin, military status, sexual orientation, marital status or physical or mental disability. 12. Events of Default and Remedies . 12.1. Live Nation's Defaults. The occurrence of any one or more of the following events shall constitute an Event of Default by Live Nation. (a) The failure by Live Nation to make any payment required to be made by Live Nation as and when due, which continues for more than ten (10) days after written notice from City (including without limitation any Required City Distributions and Excess City Distributions (whether to be paid pursuant to Sections 4.2 and 4.3 or 5.1); (b) The failure or inability by Live Nation to observe or perform any of the covenants or provisions of this Agreement to be observed or performed by Live Nation, other than as specified in other subparagraphs of this Section 12.1, which continues for more than thirty (30) days after written notice from City Manager; provided, however, if the nature of the failure is such that more than such period is reasonably required for its cure, then Live Nation shall not be deemed to have committed an Event of Default if Live Nation commences the cure within such period and thereafter diligently pursues the cure to completion and actually completes the cure within an additional sixty (60) day period; (c) Except as permitted pursuant to Section 10.1 of this Agreement, the assignment, encumbrance, pledge, or transfer of this Agreement, whether voluntarily or by operation of law, or any subcontract of Live Nation's duties hereunder, which continues for more than fifteen (15) business days after written notice thereof from City Manager; (d) Live Nation's failure to provide and maintain the letter of credit required by Section 14.2 hereof during any period in which Live Nation has not satisfied the Net Worth Requirement set forth in Section 14.1 if such failure continues for more than thirty (30) days after written request from City Manager that the letter of credit be provided; (e) (i) The making by Live Nation of any general assignment for the benefit of creditors; (ii) the filing by or against Live Nation of a petition to have Live Nation adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts discharged or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Live Nation, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Live Nation's assets located at the Facility or of Live Nation's interest in this Agreement, if possession is not restored to Live Nation within sixty (60) days; or (iv) the attachment, execution or other judicial seizure of substantially all of Live Nation's assets located at the Facility or of Live Nation's interest in this Agreement, where the seizure is not discharged within sixty (60) days. 12.2. City's Remedies. (a) If an Event of Default by Live Nation occurs, then in addition to any other remedies available to City, City may exercise the following remedies: -34- (i) City may terminate this Agreement by written notice to Live Nation, in which case this Agreement shall terminate and Live Nation shall immediately surrender possession of the Facility to City. Upon termination, City shall be entitled to recover from Live Nation: (1) Operating Expenses that remain unpaid through the date of termination, (2) all Required City Distributions and Excess City Distributions that remain unpaid through the date of termination, (3) all other amounts that Live Nation is required to pay under this Agreement through the date of termination, l~us (4) as agreed and liquidated damages ("Liquidated Damages"), a sum equal to all Required City Distributions that would have been received by City for the period from the date of termination through the end of the Term (or, if the renewal option has been exercised, through the end of the Renewal Term) if the termination had not occurred, reduced, however, to present value by applying a 4% discount rate. Live Nation and City recognize that the City's damages in case of any such termination will be substantial but are incapable of exact ascertainment and they have agreed that such Liquidated Damages are fair and reasonable and not a penalty. (ii) City may seek specific performance of any of Live Nation's obligations hereunder or seek injunctive relief; (iii) City may exercise any other remedies available at law or in equity. (b) The various rights and remedies reserved to City in this Agreement or otherwise shall be cumulative and, except as otherwise provided by Florida law, City may pursue any or all of its rights and remedies at the same time. 12.3. Cites Defaults. The occurrence of any one or more of the following events shall constitute an Event of Default by City: (a) The failure by City to make any payment required to be made by City as and when due, which continues for more than ten (10) days after written notice of default from Live Nation; (b) The failure or inability by City to observe or perform any of the covenants or provisions of this Agreement to be observed or performed by City, other than as specified in subparagraph (a) of this Section 12.4, which continues for more than thirty (30) days after written notice from Live Nation; provided, however, if the nature of the failure is such that more than such period is reasonably required for its cure, then City shall not be deemed to have committed an Event of Default if City commences the cure within such period and thereafter diligently pursues the cure to completion and actually completes the cure within an additional sixty (60) days. 12.4. Live Nation's Remedies. If an Event of Default by City occurs, then Live Nation may exercise either of the following remedies: (a) Live Nation may terminate this Agreement by written notice to City, in which case this Agreement shall terminate and Live Nation shall immediately surrender possession of the Facility to City. Upon termination, Live Nation shall be entitled to recover ,~. from City all amounts owed by City to Live Nation as of the termination date and the provisions of Section 13.1 shall apply; or - 35 - (b) Live Nation may exercise any other remedies available at law or in equity. The various rights and remedies reserved to Live Nation in this Agreement shall be cumulative and, except as otherwise provided by Florida law, Live Nation may pursue any of its rights and remedies at the same time. 12.5. Late Payments. Any payment owed to City or Live Nation under this Agreement including, without limitation, any Required City Distribution (whether pursuant to Section 4.2 or 5.1) or Excess City Distribution (whether pursuant to Section 4.3 or 5.1) or Liquidated Damages payment (pursuant to 12.2) or any other payment owed to City or Live Nation under this Agreement that is not received by City or Live Nation within ten (10) days following notice of such amount being due shall bear interest at the rate of 15% per annum ("Default Rate") from the date due until fully paid. 13. Termination. 13.1. Effect of Termination. In the event this Agreement expires or is terminated for any reason, (a) all Operating Expenses, Required City Distributions, Excess City Distributions, and all other obligations for the period up to the date of expiration or termination shall be paid using funds on deposit in the account(s) described in Section 5.6 and to the extent such funds are not sufficient, Live Nation shall pay all such amounts pursuant to Section 5.1, and (b) after all amounts referenced in subparagraph (a) have been paid, Live Nation may retain all remaining Operating Revenues. Upon the expiration of this Agreement or a termination for any reason, all further obligations of the parties hereunder shall terminate except for the obligations which for all periods up to the date of expiration or termination and such other obligations as are stated to survive or be performed after such expiration or termination. Live Nation shall be entitled to a Termination Payment only if termination occurs pursuant to Section 3.3(a), Section 5.2(b) or Section 15.5(c). Further, if this Agreement is terminated pursuant to Sections 3.3(a), 3.3(b), 5.2(b) or 15.5(c), the City shall also reimburse to Live Nation that portion of the Required City Distribution which has been prepaid by Live Nation for the remainder of the Fiscal Year. All of the foregoing reimbursement and the payment obligations are to be made within thirty (30) days after the Termination Date. The provisions of this Section regarding the above reimbursement and payment obligations of the City shall survive the termination of this Agreement. 13.2. Surrender of Facility. Upon termination of this Agreement (termination shall, for all purposes in this Agreement, include termination pursuant to the terms of Section 12 or pursuant to any other provision of this Agreement and any expiration of the Term), Live Nation shall surrender and vacate the Facility upon the effective date of such termination. The Facility and (as required under this Agreement) all equipment and furnishings shall be returned to the City in a good and clean condition consistent with other similar first class facilities operated by Live Nation and its Affiliates as of the Commencement Date and in compliance with all Governmental Requirements, ordinary wear and tear, and casualty loss excepted. 14. Net Worth Requirement; Security 14.1. Net Worth Requirement. Live Nation covenants and agrees that during the , , entire Term, Live Nation shall at all times maintain a Tangible Net Worth of not less than Twenty-Five Million Dollars ($25,000,000). On or before January 31 of each Fiscal Year, Live -36- Nation shall cause its Chief Financial Officer or Chief Accounting officer to deliver to City a certificate ("Net Worth Certificate") addressed to City certifying that Live Nation's Tangible Net Worth does or does not exceed Twenty-Five Million Dollars ($25,000,000). City shall have the right at any time within ninety (90) days after receipt of the Net Worth Certificate to have its accountant or designees review the financial statement and other records of Live Nation at Live Nation's headquarters to confirm the accuracy of the Net Worth Certificate (and Live Nation shall cooperate with any such review and provide any information reasonably requested by such accountants or designees). City's accountants or designees shall not keep copies of any of Live Nation's financial statements or records and any personal notes taken shall comply to the extent necessary to maintain the statutory exemption for "personal notes" under Chapter 119, Florida Statutes, as same maybe amended from time to time).. In the event that the Net Worth Certificate reflects that Live Nation's Tangible Net Worth is less than Twenty-Five Million Dollars or in the event City Manager sends written notice to Live Nation that City's accountants or designees have been unable to confirm that Live Nation's Tangible Net Worth exceeds Twenty-Five Million Dollars, then, in either such case, a "Net Worth Deficiency" shall exist. Within thirty (30) days following the occurrence of a Net Worth Deficiency and written request from City Manager that a letter of credit be provided, Live Nation shall obtain and deliver to City Manager a letter of credit in full compliance with Section 14.2 below, failing which an Event of Default by Live Nation shall have occurred under this Agreement and City may exercise all remedies available to City under Section 12.2. 14.2. Security. Upon the occurrence of a Net Worth Deficiency, Live Nation shall, within thirty (30) days after demand or request by City Manager, deliver to City a clean, irrevocable letter of credit (the "Letter of Credit") established in City's favor an amount equal to One Million Dollars ($1,000,000) (the "Letter of Credit Amount"), issued by a federally insured banking or lending institution with a bond rating substantially equal to that of JP Morgan Chase Bank, NA or Bank of America as of the date of this Agreement. The Letter of Credit shall specifically provide for partial draws and shall by its terms be transferable by the beneficiary thereunder. If Live Nation fails to make any payment or other charges due to City under the terms of this Agreement or otherwise defaults hereunder beyond any applicable notice and cure period, City Manager, at his or her option, may make a demand for payment under the Letter of Credit in an amount equal to the amounts then due and owing to City under this Agreement. In the event that City draws upon the Letter of Credit, Live Nation shall present to City a replacement Letter of Credit in the full Letter of Credit Amount satisfying all of the terms and conditions of this paragraph within twenty (20) days after receipt of notice from City of such draw. Live Nation's failure to do so within such twenty (20) day period will constitute a default hereunder (Live Nation hereby waiving any additional notice and grace or cure period), and upon such default City shall be entitled to immediately exercise all rights and remedies available to it under Section 12.2. In the event that the Letter of Credit has an expiration date earlier than the expiration date of this Agreement and Live Nation has not presented to City a replacement Letter of Credit which complies with the terms and conditions of the Agreement on or before five (5) days prior to the expiration date of any such Letter of Credit then held by City, then City shall have the right (exercisable by City Manager) to draw upon the Letter of Credit then held by City and any such amount paid to City by the issuer of the Letter of Credit shall be held by City A~ . as security for the performance of Live Nation's obligations hereunder. Any interest earned on such amounts shall be the property of Live Nation. City's election to draw under the Letter of -37- Credit and to hold the proceeds of the drawing under the Letter of Credit shall not be deemed a cure of any default by Live Nation hereunder and shall not relieve Live Nation from its obligation to present to City a replacement Letter of Credit which complies with the terms and conditions of this Agreement. If Live Nation subsequently provides such replacement Letter of Credit to the City, then City shall deliver to Live Nation the proceeds of the City's prior draws (to the extent not previously applied by City pursuant to the terms of this Agreement) within five (5) days after receipt of the replacement Letter of Credit. Live Nation acknowledges that any proceeds of a draw made under the Letter of Credit and thereafter held by City may be used by City to cure or satisfy any obligation of Live Nation under this Agreement as if such proceeds were instead proceeds of a draw made under a Letter of Credit that. remained outstanding and in full force and effect at the time such amounts are applied by City to cure or satisfy any such obligation of Live Nation. Without limiting the generality of the foregoing, Live Nation expressly acknowledges and agrees that at the end of the Term (whether by expiration or earlier termination hereof), and if Live Nation is not then in default under this Agreement beyond any applicable notice and cure periods and has paid all amounts required hereby, City shall return to Live Nation any remaining and unapplied proceeds of any prior draws made under the Letter of Credit. 15. Miscellaneous. 15.1.. Venue/Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principals of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND LIVE NATION EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. 15.2. No Partnership or Joint Venture. Nothing herein contained is intended or shall be construed in any way to create or establish the relationship of partners or a joint venture between the City and Live Nation. None of the officers, agents or employees of Live Nation shall be or be deemed to be employees of the City for any purpose whatsoever. 15.3. Entire Agreement. This Agreement and all Exhibits attached hereto contain the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, proposals or other expressions of intent with respect thereto including, without limitation, that certain "best and final" offer/proposal submitted by Live Nation pursuant to the process and guidelines established by the City Commission pursuant to Resolution No. 2006-26320. The Exhibits attached hereto are incorporated in to and made a part of this Agreement. No other agreements, representations, warranties or other matters, whether oral or written, will be deemed to bind the parties hereto with respect to the subject matter hereof. 15.4. Written Amendments. This Agreement shall not be altered, modified or amended in whole or in part, except in a writing executed by each of the parties hereto. ~- -38- 15.5. Force Majeure. (a) No party will be liable or responsible to the other party for any delay, damage, loss, failure, or inability to perform caused by "Force Majeure" if notice is provided to the other party within ten (10) days of date on which such party gains actual knowledge of the event of "Force Majeure" that such party is unable to perform. The term "Force Majeure" as used in this Agreement means the following: an act of God, strike, war, public rioting, lightning, fire, storm, flood, explosions, epidemics, landslides, lightening storms, earthquakes, floods, storms, washouts, civil disturbances, explosions, and any other cause whether of the kinds specifically enumerated above or otherwise which is not reasonably within the control of the party whose performance is to be excused and which by the exercise of due diligence could not be reasonably prevented or overcome (it being acknowledged that under no circumstances shall a failure to pay amounts due and payable hereunder be excusable due to a Force Majeure). (b) Neither party hereto shall be under any obligation to supply any service or services if and to the extent and during any period that the supplying of any such service or services or the provision of any component necessary therefore shall be prohibited or rationed by any Law. (c) In the event of substantial damage to or destruction of the Facility by reason of fire, storm or other casualty or any eminent domain action or other regulatory action that, in either case, shall render a substantial part of the Facility inoperable for a period of at least one year or in Live Nation's reasonable opinion the Facility can no longer be operated in a reasonably profitable manner as a result of the damages or action for a period of at least one year from the happening of the fire, other casualty or regulatory action, either party may terminate this Agreement upon written notice to the other. Upon any such termination, the provisions of Section 13.1 shall apply, City shall receive the entire amount of all insurance proceeds or eminent domain award as applicable, and Live Nation shall be entitled to a Termination Payment determined as of the date of termination. (d) Live Nation may suspend performance required under this Agreement, without any further liability, in the event of any act of God or other occurrence, which act or occurrence is of such effect and duration as to effectively curtail the use of the Facility so as to effect a substantial reduction in the need for the services provided by Live Nation for a period in excess of 180 days; provided, however, that for the purposes of this subsection, Live Nation shall have the right to suspend performance retroactively effective as of the date of the use of the Facility was effectively curtailed. "Substantial reduction in the need for these services provided by Live Nation" shall mean such a reduction as shall make the provision of any services by Live Nation economically impractical (but under no circumstance shall failure to pay amounts due hereunder be excusable as Force Majeure). 15.6. Bindinu Upon Successors and Assigns• No Third-Party Beneficiaries. (a) This Agreement and the rights and obligations set forth herein shall inure to the benefit of, and be binding upon, the parties hereto and each of their respective permitted successors and permitted assigns. ~ . -39- (b) This Agreement shall not be construed as giving any person, other than the parties hereto and their successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect of this Agreement or any of the provisions herein contained, this Agreement and all provisions and conditions hereof being intended to be, and being, for the sole and exclusive benefit of such parties and their successors and permitted assigns and for the benefit of no other person or entity. 15.7. Notices. Any notice, consent or other communication given pursuant to this Agreement will be in writing and will be effective either (a) when delivered personally to the party for whom intended, (b) on the second business day following mailing by an overnight courier service that is generally recognized as reliable, or (c) on the fifth day following mailing by certified or registered mail, return receipt requested, postage prepaid, in any case addressed to such party as set forth below or as a party may designate by written notice given to the other party in accordance herewith. To the City: City of Miami Beach City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: Jorge Gonzalez, City Manager and to City of Miami Beach City Attorney 1700 Convention Center Drive Miami Beach, Florida 33139 To Live Nation: Live Nation Worldwide, Inc. 9348 Civic Center Drive Beverly Hills, California 90210 Attn: Bruce Eskowitz With copy to: Live Nation Worldwide, Inc. 2000 West Loop South, 13`h Floor Houston, Texas 77027 Attn: James Tucker 15.8. Section Headi~s and Defined Terms. The headings contained herein are for reference purposes only and shall not in any way affect the meaning and interpretation of this '`~ Agreement. The terms defined herein and in any agreement executed in connection herewith -40- include the plural as well as the singular and the singular as well as the plural, and the use of masculine pronouns shall include the feminine and neuter. Except as otherwise indicated, all agreements defined herein refer to the same as from time to time amended or supplemented or the terms thereof waived or modified in accordance herewith and therewith. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original copy of this Agreement, and all of which, when taken together, shall be deemed to constitute but one and the same agreement. 15.9. Severability. The invalidity or unenforceability of any particular provision, or part of any provision, of this Agreement shall not affect the other provisions or parts hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions or parts were omitted. 15.10. Non-Waiver. A failure by either party to take any action with respect to any default or violation by the other of any of the terms, covenants, or conditions of this Agreement shall not in any respect limit, prejudice, diminish, or constitute a waiver of any rights of such party to act with respect to any prior, contemporaneous, or subsequent .violation or default or with respect to any continuation or repetition of the original violation or default. 15.11. Certain Representations and Warranties. (a) The City represents, warrants, and covenants to Live Nation the following: (i) City has full legal right, power and authority to enter into and perform its obligations hereunder; and (ii) this Agreement has been duly executed and delivered by the City and constitutes a valid and binding obligation of the City, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles. City further represents and warrants to Live Nation that for so long as Live Nation is not in default under this Agreement beyond any applicable notice and cure period, Live Nation's operation and management of the Facility shall not be disturbed or hindered by City in its proprietary capacity or anyone claiming by, through or under City in its proprietary capacity, subject, however, to the terms, provisions and obligations of this Agreement. The foregoing shall not apply, however, with respect to the City acting in its governmental capacity or exercising its police powers. (b) Live Nation represents and warrants to the City the following: (i) Live Nation has full legal right, power and authority to enter into and perform its obligations hereunder, and (ii) this Agreement has been duly executed and delivered by Live Nation and constitutes a valid and binding obligation of Live Nation, enforceable in accordance with its terms, except as such enforceability maybe limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles. 15.12. Governing Law. This Agreement will be governed by and construed in accordance with the internal laws of the State of Florida, without giving effect to otherwise applicable principles of conflicts of law. .~. -41 - IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written. CITY JOF AM BEACH, FLORIDA, a muni p or ion of the State of Florida ~', iviayur Print Name ~A-V / D ~~R/h ATTEST: Y City Clerk RD &~_ T A~1~. Print Name [Signatures continue on next page] APPROVED AS TO FORM & LANGUAGE tk FOR,~ECUTION ~ ~ 21 D~ Dat LIVE NATI WORLD C. By: Name. ~S Title: (',(`f7) ~ ~i/k-VI ~}YYI~.t~ CA ~1 ~~ C- - 43 - LIVE NATION WORLDWIDE, INC. By: Name: Title: ATTEST: B ~~ Y Name: Michael G. Rowles Title: Secretary - 43 - EXHIBIT "A" LEGAL DESCRIPTION Commence at the point of intersection of the center lines of 17th Street and Meridian Avenue, as shown in AMENDED PLAT OF GOLF COURSE SUBDIVISION OF THE ALTON BEACH REALTY COMPANY, recorded in Plat Book 6, at Page 26, Public Records of Miami-Dade County, Florida; thence easterly, along the easterly extension of the center line of said 17th Street for a distance 868.00 feet; thence deflecting 90°00' 00" to the left for a distance of 232.30 feet to the POINT OF BEGINNING of the tract of land herein described; thence continue northerly, along the northerly extension of the last described course for a distance of 131.70 feet; thence deflecting 90°00' 00" to the right for a distance of 187.80 feet; thence deflecting 90°00' 00" to the right for a distance of 3.00 feet; thence deflecting 90°00' 00" to the left for a distance of 268.15 feet; thence deflecting 90°00' 00" to the right for a distance of 9.55 feet to a point in a curve; thence deflecting 19°15' 47" to the right to the chord of a curve concave to the southeast. Said curve having a central angle of 40°31' 55" and a radius of 92.63 feet running along the arc of said curve for a distance of 65.53 feet to a point of tangency; thence southerly, along the southerly extension of the tangent of the last described curve for a distance of 18.75 feet; thence deflecting 90°00' 00" to the left for a distance of 29.60 feet; thence deflecting 90° 00' 00" to the right for a distance of 59.65 feet; thence deflecting 90°00' 00" to the right for a distance of 29.60 feet; thence deflecting 90°00' 00" to the left for a distance of 12.45 feet to a point of tangency; thence along the arc of a curve concave to the northeast, having a central angle of 34°11' 17" and a radius of 73.45 feet for a distance of 43.83 feet; thence deflecting 105°28' 42" to the right from the chord of the last described curve for a distance of 61.55 feet; thence deflecting 90°00' 00' to the left for a distance of 4.70 feet; thence deflecting,90°00' 00" to the right for a distance of 44.85 feet; thence deflecting 90°00' 00" to the left for a distance of 20.00 feet; thence deflecting 90° 00'00" to the right for a distance of 18.00 feet; thence deflecting 90°00' 00" to the right for distance of 20.00 feet; thence deflecting 90°00' 00" to the left for a distance of 75.00 feet; thence deflecting 90°00' 00" to the left for a distance of 17.30 feet; thence deflecting 90°00' 00" to the right for a distance of 27.45 feet; thence deflecting 90°00' 00" to the left for a distance of 2.00 feet; thence deflecting 90°00' 00" to the right for a distance of 21.46 feet; thence deflecting 90°00' 00" to the right for a distance of 12.30 feet; thence deflecting 90°00' 00" to the left for a distance of 16.80 feet; thence deflecting 90°00' 00" to the right for a distance of 21.30 feet; thence deflecting 90°00' 00" to the left for a distance of 64.50 feet; thence deflecting 90°00' 00" to the left for a distance of 2.60 feet; thence deflecting 90°00' 00" to the right for a distance of 80.52 feet; thence deflecting 90°00' 00" to the right for a distance of 12.10 feet; thence deflecting 90°00' 00" to the left for a distance of 14.50 feet; thence deflecting 90°00' 00" to the right for a distance of 54.80 feet; thence deflecting 90°00' 00" to the left for a distance of 21.65 feet to the POINT OF BEGINNING. Said lands located in Section 34, Township 53 South, Range 42 East, City of Miami Beach, County of Miami Dade, Florida and containing 90,421 square feet more or less or 2.076 acres more or less. \ 7.. __. _~ __._ ~,i ~~~ 1 f 11 ,...., _...... nvawy °°78rn9nM T ..... _r 9 n --- _ -. _ 3 -~ -. ...... _. _ .... _ .. _ i ~ _ _ .. .... _. 711 iE ,' ! ,li l ~l I a . ` -~ 1 ' ~ {~! +Afl .. ~! ! ~ ~i ' 4 : N ~ i i i 1 1~ :~ . i - ~ ~ ~ }tr m ~1 ` _- O , ! ., .T..`.~ :x ~ ® ~ L.^ .~ ....~ a ~~ .... ~ s .~ J`~T ~ ~~J 1 1 f ~ ! J.. + ~ 1 i ~~ } a ! ~~ ] i J ~ 1~~ - „ ~ 11 i .. >7 1 ~1r4~9 ~ jf - 1 ti'I nlo~m'1 1 p I f J ~ ~ ~ _-„__ _ i~..._ ~ l~ 3;J !f -" ~..+' q ~ _ (~ ~ ~~ -- -- 't#{..___ _._. _. I ~ E°C at i ri~' ~~ ~ 1. ~i„~ ~ y' ° i ~ ~: '1 11f} ~'~. J 1 ,fll~i S a~ .ice J i f 1 a`:"' ~ '~' ~ .lp~r'' ..~~?" _ - ' al J ~~,, I ti~ i 1. ~'Fill ~v ~ b i 1 as + ~ !~ !i n ~ 4 i } ~ ~[ ~ ~, n .. s^^.. _ J J a eS 1 _ - r ~ ' ti :~ 1 t ~ _ ~~ ' I ~~ l~ 7 ~ of ~ Y ! ~ ~ ~ ~ i i ~ 4 z ' 1 ' _ ! J, 1 J ~ ' .3~ a ._ 3~ ~ ~ 1 4~ i ~ 1 3 1~ ! ~ :1 i i + 1f ~ ~' J•~~ ~ l.~ ~ ~ mu~ny lanai(' yy ~ ff ~ ~ X 1 l 0 ~ ' . - ~ ~ , ~ ~ ~ s } ~ ~ J -S ~~ ifs d ~ ~~ ~ .J '~ 7 ly. -- ! ! i !~-. i.. 1 ~ ~ ~' '~~ ~ j -- ~ ~ `1~ 's ~ .u: ! .... u -- r __ F I :. ! J ! 7 ! ; .~ ..._ ..~ lli~li i i -- i f . ~ ~r ~ 1 ~ ®~ ~ ~ , ~ ~ _ ~ 7 ~F ~ ~I ~ Vii' f i 1 of ~~ .~_~M 1~ : ~' ~ .~ 1 :, so ,. ~. , lx i ~ : - !J 7 ! a ._.- - ~1 as 1s~ i )J 4~ 3 1 11 r , ~ ' ~ ! t I ~ . + ,~ Il'uff~'-+1 ~ .J ! = . .~~ :. _. of ~ j . . ~ i ., . , 7 VAEx -~~ iJ ~ 1 ; i - P s ~ ...... . ~ w H ZZ ~o jl . I !, } ~~1 I I i, i a 1 ~1 w ~ W sMl! ~ .~ ~~i ~ f r....j '' I 1 m (7 , 1~;~° ~ J i ~~ 1 fi ~ a~ ,. '~ (q . 3» 1 ~' i ~ 1 C f ., ; ~ t 1 ~ ~ i 7E i l'( ~ /~ ~ .F ~ i i.i~ ! ; a y id '11 / f ~ 3 rony naenl d -rill" 7 t~l~ fl I"~ il: % „ ~~` 3'' ~ f / '{tll = 'z iJ , 1 1 t%' %~ fl/,, f ~ ~ f ~~- { I ~ i; 1'r~ i ~ Ir s ' , .,, ~ ', .- ' {{ ~ 1J 7 / ~ f y. /~ ~ i.. ' ~ f I ~ l `d' ' ~ ,~' ~~ ~' .~ ~~ 1 1~ rayack ~~f R.. ~ 1 ~ + / f~` J ! r~ !_ ... ' ._.r al ,l f,~ ~ ila '] , L ~l ~ ~ ~ ~~ ~ ~ ~ l .-. ~,-_ ~~ ~ ! t~+ ' _ } i i~ 1 ~ a ^Qi ..~yl t~?+~ :e~' M ,~ `y. .., i.i ~~ ~~~F . i ~~ I - ~ .... .__ . ~ . ......_ ~.~___!.t .. -_ ...~ anu41n1vrJ uo4wno~.. .._,! : _.- _.~. _.. . - s~ _. J ~~ ~ c ~ ~ ~~ EXHIBIT "B" CITY WORK I. ADA RENOVATION SCOPE OF WORK All necessary work, labor, equipment and materials to complete the ADA modifications to the Jackie Gleason Theater, including, without limitation, all matters reflected and indicated in the following plans and specifications: A4.0 Mezz. Lobby NE & SE Toilet Plan 12/15/03 NE Toilet Area #7 Only A4.1 Mezz. Lobby NE & SE Finish Plan 12/15/03 NE Toilet Area #7 Only A4.2 Mezz. Lobby NE & SE RCP 12/15/03 NE Toilet Area #7 Only A4.3 Mezz. Lobby NE & SE Elevations 12/15/03 NE Toilet Area #7 Only A5.0 Mezz. Level NW & SW Toilet Plan 12/15/03 NW Toilet Area #9 Only A5.1 Mezz. Level NW & SW Finish Plan 12/15/03 NW Toilet Area #9 Only A5.2 Mezz. Level NW & SW RCP 12/15/03 NW Toilet Area #9 Onl}! A5.3 Mezz. Level NW & SW Elevations 12/15/03 _ NW Toilet Area #9 Only All work indicated above shall be substantially complete and able to be used by Live Nation no later than 12/15/2007. The City will provide a CPM schedule for this project and allow a Live Nation representative to attend construction progress meetings to verify schedule and coordinate construction activities. II. FOUNDER'S ROOM AND ADA RENOVATION SCOPE OF WORK All necessary work, labor, equipment and materials to complete the Founder's Room and ADA toilet room modifications to the Jackie Gleason Theater, including, without limitation, all matters reflected and indicated in the following plans and specifications: A1.0 Founder's Room Toilet Plan 12/15/03 A1.1 Founder's Room Finish Plan 12/15/03 A1.2 Founder's Room RCP 12/15/03 A1.3 Founder's Room Elevations 12/15/03 A1.2.0 Founder's Room Demo Plan 2/03/03 A1.2.1 Founder's Room Floor Plan 2/03/03 A1.2.2 Founder's Room Demo RCP 2/03/03 A1.2.3A Founder's Room RCP and Roof Plan 2/03/03 A1.2.3B Founder's Room RCP and Li htin~ 2/03/03 A1.2.4 Founder's Room Elevations 2/03/03 A1.2.SA Founder's Room Bar "F" 2/03/03 A1.2.SB Founder's Room Bar "F" 2/03/03 A3.0 Entry Level NW & SW Toilet Plan 12/15/03 NW Toilet Area #5 Only A3.1 Entrv Level NW & SW Finish Plan A3.2 Entrv Level NW & SW RCP 12/15/03 12/15/03 ,.. NW Toilet Area #5 Only NW Toilet Area #5 Only A3.3 Entry Level NW & SW Elevations 12/15/03 NW Toilet Area #5 Only_ Exhibit B Page 1 A13.0 Exterior Ramp and Platform Lift Plan 12/15/03 ADA Lift Only, Ramp is complete. City shall cause all work indicated above to be substantially complete and able to be used no later than 11/1/2008. City shall cause all construction trailers, equipment and debris to be removed from the Facility prior to 11/1/2008. Live Nation shall. meet with the Architect of Record to review the proposed finishes for this project prior to the start of construction. Live Nation may request minor changes to the color palette to better coordinate with Live Nation proposed changes and City shall accommodate such requested changes so long as no additional costs are incurred. Live Nation shall meet with the Architect of Record to review the proposed bar area for this project prior to the start of construction. Live Nation may request changes to the bar to better coordinate with Live Nation's proposed use and City shall accommodate such requested changes (but Live Nation shall bear any additional costs). The changes will include: redesign Founder's Room bar to simplify design, revise equipment and create a uniform counter depth. City shall provide a CPM schedule for this project and allow a Live Nation representative to attend construction progress meetings to verify schedule and coordinate construction activities. III. CITY RENOVATION SCOPE OF WORK PHASE THREE All necessary work, labor, equipment and materials to complete the south mezzanine level bar at the Jackie Gleason Theater, including, without limitation, all matters reflected and indicated in the following plans and specifications: A2.1.6A Second Floor Lobbv Bar 2/3/03 South Bar Only A2.1.6B Second Floor Lobbv Bar Details 2/3/03 South Bar Only A2.1.1B Second Floor Lobbv Bar Location Plan 2/3/03 South Bar Only All work indicated above shall be completed by Live Nation on behalf of the City of Miami Beach to facilitate the timing of the project completion. The City will reimburse Live Nation for all direct construction expenses and any indirect expenses that fall outside of Live Nation's other project (these expenses may include, but are not limited to permit expediting and health department coordination). Live Nation reserves the right to modify the bar plan to adjust for different equipment and alternative finishes. Exhibit B Page 2 EXHIBIT "C" iJP(:RAnF~ All necessary work, labor, equipment and materials to complete a $3,500,000 renovation to the Jackie Gleason Theater. Projects will be completed in the order of priority shown below until achieving the $3,500,000 spending cap ("Cap"), after achieving the Cap there shall be no obligation to perform any remaining work or items. All costs shown include hard construction costs, soft costs, and furniture, fixtures and equipment. Priority 1 -- Modifications to the auditorium to convert to a live music use. $1,400,000 Remove all fixed seating between the cross aisle and the stage. • Install three level platforms between the stage and center cross aisle. Include steps, ramps, and a low wall drink rail at each level change. Floor surface to be oak hardwood flooring. Floor structure to be metal studs and metal deck with a concrete topping with a portable pit filler platform over the existing orchestra pit. Existing interior green drapery will be dyed red, including main traveler and auditorium side wall curtains. • Green balcony seat fabric will be replaced with red. • Install (4) new glass and crystal chandeliers with blue pin spots. Priority 2 -- Modifications to existing production audio and lighting systems. $400,000 • Replace existing speakers with a line array system. Augment the existing dimmer system with a new 24 channel board. Priority 3 -- Modifications to main lobby and concessions $500,000 • New main lobby flooring. • Paint main lobby walls. • Relocate Gleason artwork and add new live music posters and photos. • Install new red drapery in main lobby. • Install new glass and crystal chandelier with blue pin spots in main lobby. • Add new walk-in cooler adjacent to the main lobby for beer storage. • Add new beer system with three flavors of beer at each point of sale. • Remove existing back bars and install new display coolers and beer taps. • Update bar areas to accept new equipment as required (ice bins/ speed rails, reach-in coolers, soda guns). • New POS system as required. Priority 4 -- New exterior signage $200,000 • Modify front marquee signage to have "THE FILLMORE" standup letters above the existing marquee. • Replace the existing rear building sign with "The Fillmore at the Jackie Gleason Theater." Priority 5 --Balcony VIP box seating and VIP lounge $400,000 • Replace existing seats in front of the balcony cross aisle with new larger high back seats with cup holders. ,~. • Create VIP lounge in balcony level lobby with new fixed bars and lounge seating and tables. Exhibit C Page 1 Priority 6 -- Modify backstage dressing rooms, green room and catering kitchen. 250,000 • Create new catering kitchen adjacent to the existing loading dock behind the practice room. • Modify existing practice room decor to create a green room. • Upgrade and combine 4 dressing rooms to create two larger dressing rooms for touring acts. Contingency $350,000 Exhibit C Page 2 EXHIBIT "D" MINIMUM OPERATING AND MAINTENANCE STANDARDS These minimum operating and maintenance standards are intended to be considered as a whole and intended to provide an overall standard for the Facility. Individual discrepancies, as well as deviations, from any individual standard shall not be considered a default of the Agreement; it is the intention of the parties that this Exhibit is merely a guide and that Live Nation is only expected to use good faith efforts to endeavor to meet the standards set forth herein. In the event of a conflict between the terms or conditions of the Agreement and the terms or conditions of this Exhibit, the terms and conditions of the Agreement shall control. PERSONNEL 1. Live Nation shall have the sole responsibility to recruit and employ afull-time general manager and any necessary administrative and accounting personnel that are responsible for the overall management and operation of the Facility. 2. Live Nation shall have the sole responsibility to recruit and employ sufficient personnel to maintain the following functions: general security; janitorial, housekeeping and . cleaning for both event and non-event cleanup; maintenance for electrical systems, plumbing; and air conditioner operation; painting and general overall maintenance of the Facility to ensure that the Facility is being maintained consistent with other similar first class facilities operated by Live Nation. 3. Live Nation shall have the sole responsibility to recruit and employ personnel as it deems necessary for the staging and coordinating of Events. 4. Live Nation shall maintain personnel policies that assure employment practices do not discriminate on the basis of race, color, religion, military status, marital status, physical or mental disability, national origin, age, gender, or sexual preference. GENERAL SECURITY 1. Live Nation shall provide for the overall security of the Facility, including during non- event hours. EMERGENCY PROCEDURES 1. Live Nation shall assign an employee and a backup employee to act as an Emergency Liaison to the City. This individual will be required to use good faith efforts to attend any and all meetings, held by the City, that deal with emergency situations, such as extreme weather events, terrorist acts, ete. The Liaison will serve as the point of contact during any emergency crisis. ~- 2. Live Nation shall develop and implement a Hurricane Preparedness Procedure, a copy of which shall be provided to the City. Exhibit D Page 1 JANITORIAL, CLEANING AND HOUSEKEEPING 1. The Facility shall be reasonably clean at all times. This includes general cleaning during non-event times, as well as during Events. 2. Restrooms are to be cleaned during Events and on a periodic basis during non-event times to assure that they are in a functional and reasonably sanitary condition. 3. Garbage and trash shall be removed on an as-needed basis. Trash receptacles shall be stationed throughout the Facility. 4. Live Nation shall maintain compactor, garbage areas, waste areas, recycling areas, and dumpster areas reasonably clean and debris free in order to comply with applicable codes. 5. Carpets shall be vacuumed and cleaned on an as-needed basis. 6. Terrazzo flooring shall be cleaned and polished on an as needed basis. 7. Windows shall be maintained in a reasonably clean condition and cleaned on an as needed basis. 8. Treatment for pests and rodents (except termites) shall occur on a quarterly basis as needed to prevent infestation or as required by applicable code. 9. Entrance doors and mirrors shall be maintained in a reasonably clean condition and cleaned on an as needed basis. LANDSCAPING 1. Indoor landscaping shall be maintained in accordance with specifications of the type of plant and should be watered and fertilized as the type of plant demands. 2. Indoor landscaping should be reasonably insect-free. EQUIPMENT MAINTENANCE AND GENERAL MAINTENANCE 1. Equipment shall be maintained in a good and workmanlike manner in order to maintain in full force and effect all dealer's and manufacturer's warranties. Live Nation shall develop an annual schedule for equipment inspection and preventative maintenance. 2. Upon termination, cancellation, and/or expiration of the Agreement, Live Nation shall provide all records maintained in accordance with Section 2.3 (e). All existing warranties that are transferable will be transferred to the City. .~ . Exhibit D Page 2 3. Live Nation shall develop a preventive maintenance plan for the building and its major building systems and major equipment. This plan shall be provided to the City Manager annually or when updated. 4. Live Nation shall post and maintain, as required by any applicable governmental code and/or regulation, any and all required professional licenses, certifications, and/or permits. 5. Live Nation shall maintain and inspect all building safety systems including but not limited to: smoke, fire, and CO detector systems, backup generator operation, emergency battery backup functions, emergency lighting, emergency egress, special needs and blackout preparedness equipment. All building safety systems shall be tested on at least an annual basis or as required by federal, state or local codes and regulations, and maintained in operating condition at all times. 6. Live Nation shall develop and implement a system for regular inspections of elevator and escalator controls, motors, suspension systems, and related equipment, and shall maintain such systems substantially in accordance with manufacturer required standards. 7. Live Nation shall develop and implement a plan for inspection and maintenance, including replacement if needed, for the Facility's HVAC systems. This shall include inspection of all HVAC controls on a quarterly basis to verify proper setting and operation as well as any adjustments and/or maintenance that may be appropriate, including, but not limited to filter replacement, blower and/or heat exchanger, proper operation of air intakes/vents, fan units, ducts, etc. 8. Live Nation shall develop and implement a plan for inspection and maintenance of the building envelope and roofing systems. This shall include periodic inspection and maintenance tasks for the roof, roof penetrations, and exterior walls and penetrations. 9. Live Nation has the sole responsibility of maintaining the paint on both, the interior and exterior of the Facility. The City has the sole right to approve (not to be unreasonably withheld, conditioned or delayed) the paint color selections used on the exterior of the Facility. ,~. Exhibit D Page 3 EXHIBIT "E" CITY AGREEMENTS None ,~. Exhibit E Page 1 EXHIBIT "F" Event hove-i^ Date Start Date PENDING BOOHINGS Event End '~~love-Out Date Date ~~ E~~ent Name _ f 04/03/08 04/04/08 04/08/08 04/09/08 Inter-American Development Bank 07/14/08 07/19/08 07/23/08 07/25/08 Swimwear Show 12/05/08 12/08/08 12/10/08 12/10/08 IAEM Expo! Expo! 03/31/09 03/31/09 04/04/09 04/04/09 International Association for Dental Research 2009 International Meeting 05/13/09 05/16/09 05/20/09 05/22/09 International Pow Wow 07/13/09 07/18/09 07/22/09 07/24/09 Swimwear Show 11/02/09 11/07/09 11/09/09 11/11/09 American College of Allergy Asthma & Immunology 2009 03/01/10 03/06/10 03/09/10 03/11/10 American Academy of Dermatology Annual Meeting , 06/05/10 06/05/10 06/14/10 06/14/10 American Institute of Architects 07/12/10 07/17/10 07/21/10 07/23/10 Swimwear Show 09/27/11 10/02/11 10/OS/11 10/07/11 American Society for Therapeutic Radiology & Oncology (ASTRO) 04/11/12 04/16/12 04/18/12 04/19/12 American Academy of Neurological Surgeons Annual Meeting 04/22/12 04/25/12 04/28/12 04/29/12 National Council of Teachers Mathematics 06/04/12 06/09/12 06/13/12 06/14/12 Society of Nuclear Medicine Annual Meeting 02/25/13 03/02/13 03/05/13 03/07/13 American Academy of Dermatology Annual Meeting ~. Exhibit F Page 1 EXHIBIT "G" This approved list of sponsors is intended to be considered as a whole and intended to provide and overall standard for the Facility. It is the intention of the parties that this approved list of sponsors is merely a guide and that Live Nation is only expected to use good faith efforts to endeavor to meet the standards set forth herein. In the event. of a conflict between the terms or conditions of the Agreement and the terms or conditions of this approved list of sponsors, the terms and conditions of the Agreement shall control. Account Name "NYS Public Service Commission 10,000 RV 21st Amendment Liquors 24 Hour Fitness 4 wheel parts 4 You 5/3 Bank 7-Eleven 7-up Bottling Company 92.9 Dave FM 96.5 WTIC-FM 99X A & P / Superfresh A&A Cycle Sports A&B Suzuki Wheeling A&E Television Networks A. D. Farrow Harley Davidson Al Alliance Limousine AAA Aamco Transmission AAPECS Eye Care AARON RENTS Absolute Vodka AC Delco Academic Financial Services Ackerman McQueen -Taco Mayo ACIVIS-ATM Acosta Sales & Marketing Company Action Integrated Marketing Action Motorsports Acuvue Adidas ~ "`~ Adir Restaurant Corp. DBA Pollo Campero Adirondack Tire Center ADT Advance Auto Parts Advanced Laser Technology Advanced Motorsports Adventure Aquarium Adville USA - Wienerschnitzel -Tucson Aero Electronics Aeromexico Aeromexico Airlines Aeropostale Aetna, Inc. AFLAC AIG Air Force Air Force -Memphis Air Force Hidalgo Air Force Pittsburgh Air Force Reserve - Baline Warren Air force Richmond Air Force Roanoke Air Force Saginaw Air Tran AirTran Airways AI Packer's White Marsh Ford ALABAMA POWER-sponsor Alamo City Harley Davidson Alan Frank & Assoc-KFC Alaska Airlines Alaska Distributors Co. Alberta Pork Albertsons Albright Ideas ALBUQUERQUE JOURNAL Alcoa Goodtimes Yamaha Alefs Harley-Davidson Wichita Alfred State (Tre Media)' All Points Connect All The Rage Allegheny County Court Services (ACCS) Allegheny County Court Systems Alliance .r . Alliance Data Alliance Hospitality Management Allied Advertising Allied Lube -Texas, California Allied Services Allied Wireless/Telus Allstate Allstate Insurance Company ALLTEL Almaden Press Alpinestars Alternative Apparel Altmans Winnebago Alton's Tire Alvarez Tire Am Ex Amalie Oil AMCI AMD Amegy Bank of Texas Amerada Hess America Service American Airlines American Bottling American Dairy Brands American Eagle Credit Union American Eagle Outfitters American Electric Power (AEP) American Express American Family Insurance American Honda American Honda Motor Co., Inc. American Kawasaki of Garland American National Bank of Omaha American Red Cross American Suzuki Motor Corp.-Motorcycle / ATV Division American Suzuki Motor Corporation American Tap Room America's Tire Ameriprise Financial Ameristar auto outfitters Ameristar Casino .r . AMP'D Mobile Amscot Anderson Sales & Service Andrews Suzuki Andy's Honda of Hazard Anheuser Busch Anheuser Busch Inc Anheuser Busch, Inc. Anheuser-Busch Anheuser-Busch Inc. Anheuser-Busch, Inc. Anheuser-Busch-Sponsor Anita Santiago Annie's Homegrown ANR Motorsports San Antonio ANTHEM Anthem Blue Cross Blue Shield Anthony & Sylvan Pools AOL AOL/Time Warner Apache Motorsports Apple Applebee's Aqua (Blue Cross) Aqua Fina Water Arby's Arbys Morocco Arby's Oklahoma City Arcade Rockstar Arena Concessions Argyll Motorsports Arizona Lottery Arizona Public Service Co Arizona Public Service Company Arlington Heights Ford Armani A/X Army Army -Charleston Army -Milwaukee Army Evansville Army National Guard Army National Guard Nampa Army Prescott Valley Army Recruiting -Greenville ,,.. Army Richmond Army Roanoke Army Rockford Arni's Restaurant Arnold Agency -SUBWAY Arnold MPG Arrow Limo Arrowhead Motorsports Arrowhead Pond Art.com Asher Agency (SUBWAY) Ashley Furniture ASK Powersports Aspen Marketing Aspen Pure Astound Cable AT&T Athena Spa Atlanta Beverage Company Atlantic Bartender School Atlantic City Airport Atlantic Power Cleaning Atlantic Superstore Atlantis -Reno Auburn Val-U Inn Audi audio express Audio Workx audiotronics Austrends AutoNow/LiftedTrucks.com Autotrader.com AVEDA Institute Avocet Communications AXE Axis Eye Center Azteca Mexican Restaurants B&G Foods Babson College Bacardi Bacardi U.S.A., Inc. Bacardi USA, Inc. Bachman Company '`~ Bad Boy Energy Drink Bad Rat Motorsports Badcock Badger Liquor Bahama Mama Ball State University Ballard Spahr Bally Total Fitness Banana Boat BANK OF ALBUQUERQUE Bank of America. Bank of Sacramento Bank of St. Petersburg Bank of the West Banner Health Arizona Bar Louie Barbizon Modeling Barb's Harley Davidson Barefoot Wines/ E&J Gallo Barking Crab Bar's Products Barton Beers Inc. Barton Brands Bass Pale Ale Bass Pro Shops Bath Fitter bauer Built Tire Bavarian Inn Bay State College Baymark Inc. BB&T BBDO /Dodge BBDO California BBDO Detroit (Dodge Jeep) BBDO Dodge Upstate NY BBDO Syracuse -Jeep Beazer Homes Beck's Beef O Brady's Beer and Wine Specialists BEFORE & AFTER BODY CARE Behan Communications - GE Bell Ford ~- Bell Powersports Bella Vita Restaurant Belmont Hotel Ben & Jerry's Ben and Jerry's Ben and Jerry's/Scoop Shops Benedict Advertising (Subway Atlanta) Bentley College Beringer Bernie Robbins Jewelers Corporation Bernstein-Rein Advertising, Inc. Bert Ogden Motors Berts Mega Mall Best Buy Best Buy Mobile Best Western -Heritage Inn Best Western Harbor Shores Best Western Hazlet Inn Best Western International Best Western Peppertree Auburn Inn Best Western Raleigh Inn & Suites Bestwestern Battlefield Inn Better Bedding BFG Communications BFGoodrich Tires Bi Mart Big Fish Promotions Big Lots Big O Tires (Sharp Advertising) Big Sky Distributors Big Stuff (detroit) Big Top Entertainment Big Top Rentals Big Z Tire and Auto Center Big-O Tires Bill Graham Presents (Live Nation Amphitheatre) Bill Hudson Agency (McDonald's) Bill Smith Ford Birmingham Coca Cola BIRMINGHAM NEWS Birmingham Suzuki Blender Magazine Blockbuster, Inc. Bloomsburg University ~. Blossom Chevrolet Blossom Shop BLR Agency(Subway) Blue Back Square Blue Dot Marketing Blue Martini Blue Moon Blue Shield of California Blue Whale Holdings, LLC Bluegreen Corp. Bluegreen Corporation Bluegreen Vacation Club BMA Productions, Inc. - Rinco of Texas, Inc. Boardwalk Fries Bob Evans Bob Green Construction Bob Silva Ford Bob's Discount Furniture bob's stereo Bob's Stores Bodog Music Bojangles Bold Gold Media Group Bommarito Automotive Group Bonneville Radio Boost Mobile Boot Barn Boot Connection Borders Books & Music Boscovs Boscov's Boskovitch Memorial Fund Boston Beer Co Boston Globe Boston Market Boston Pizza Boston Snacks BOSTON'S PIZZA Bozzuto's Inc. BP Amoco Bradford School Brake's Plus Brandeis University ~. break.com Breakers Palm Beach Briarwood College Bridgestone Bridgewater State College Bright House Brighthouse Networks NIT St. Pete (2007- 08) Brio Academy Brisk Broadway Across America Broadway Bank(San Antonio) Brotherhood Bank Brow-Forman Spirits Americas Brown & Haley Brown Forman Brown Forman Beverages Brown Forman Cincy Brown Forman Corporation Brown Forman Spirits America Brown Forman Spirits Americas Brown-Forman Browse shop Bruce Genter, MD FACS -Aesthetic Plastic Surgery & Skin Care Center Bubba Burgers Bubba's Tri-City cycles Bucei Cataract and Laser Vision Institute Bucky's Express Bud Light BudLightLandShark Budweiser Budweiser -Greenville Budweiser @ Dodge Theatre Budweiser Springfield Buick Bully Hill Vineyards Bumpus Harley Davidson of Memphis Burger King Burger King -Memphis Burger King -Spokane Burger King (Omaha CB) Burger King Corporation Burlington Center Mall Burlington Yamaha Burn Lounge BurnLounge Buschmann Communications Butler Nissan Butler Toyota BVK -Subway -Milwaukee C&C Powersports C&S fun Center C.E.S. Team One Communications C.H. Wright CA Community Colleges Cabela's Cabot Cheese Cabrini College Cadbury Schweppes Cadillac Cadillac San Antonio Caffe Appassionato Cal Spas Calico Hats California Lottery CalTrans Calzone Case Company Camden County College Camille's Sidewalk Cafe Can Do Powersports Canada Dry/Snapple Candlewood Suites-Raleigh Cary Candlewood Suites-Raleigh Crabtree Canterbury Hotel Cape Cod Potato Chips Capital District Transportation Authority Capital Ford Capital Grill, The Capital One Capitol Beverage Company-Coors, Miller, Atomic X Capitol City Cycle Capitol Federal Capitol Yamaha Car Stereo One Car Toys a• Car Toys, Inc. Car Tunes Car Wash Enterprises, Inc. Carlisle Corp - Wendy's -Tupelo Carlisle Corporation / Wendy's (Greensboro) Carls Jr. Carl's Jr. Carl's Jr. Reno Carrabba's Italian Grill Cars RV & Marine & Motorsports Cars RV Marine Motorsports Carter Energy Carter Powersports Cartridge World Carve) Casa D'Oro Casanova Pendrill Casino Arizona Casio Castro) Castro) Canada Castro)/AAP CAT (Gravitas Marketing) Catapult Learning Center Caterpillar Cat's Music Lavenders Lavender's Lavender's Boot City Inc, CB&S Advertising-Kroger Great Lakes Region CCR CCR-Hartford CCR-New Haven CDW CEI Cellone Bakery Centerra Wine Centerra Wine Company Centerra Wines Centex Homes Central Missouri Pizza Central Valley Honda .r . Central Yamaha Cerini's Harley Davidson-Buell Certified Transmission Champion Window Company of St. Louis, Inc. Championship Off Road Racing Champs Sports Chapman and Cutler Charles Schwab Charles Schwab Corporation Charmer Sunbelt Charter Communications Charter One Charter One Bank Chase Bank Chase Manhattan Bank Cheba Hut Chebucto Ford Sales Checkers Rally's Cheerwine Cheeseburger in Paradise Chernoff Newman Cherry Hill Nissan Cherry Hill Triplex Chevrolet Chevy Chevy Chase Bank Chicago Convention Tourism Bureau Chick fil a Chick Fil-A Chick-fil-A Chick-Fil-A -Tupelo Children's Hospital of Philadelphia Chipotle CHJ Digital Repro Choice Hotels International Christus Santa Rosa Chrysler Chrysler Jeep - Cincy Chula Vista Toyota Church's Chicken Ciceron Cici's Pizza ~- Cincinnati Bell - Cincy Cingular Cingular Wireless Cingular Wireless -Salinas Cingular Wireless -Santa Rosa Cingular Wireless (roanoke) Cingular Wireless/American Cellular Circle B Sales Circle K Circuit City Circuit City Stores, Inc. Citadel Broadcasting Citi / AAdvantage Card Citicorp Credit Services, Inc (CCSI) Citizen's Bank Citizens Trust Bank City Tire & Auto CK Pretzels Clare Rose (Budweiser) Clarian Health Clarian Health Network Clarion Hotel & Conference Clarkson Eyecare Classmates.com CLC Restaurants -Taco Bell Clear Channel Clear Channel Broadcasting Clear Channel Radio Clear Channel Radio, Tampa/Buccaneers Clear Choice Custom Vision Center Clear Choice LASIK Center Clear Wire Clearwire Cleveland Art Institute Cleveland.Com Clif Bar Club Cal Neva CMD Management Inc. CMT CNET Networks Inc CNG CNM Coach ~• Coca -Cola Coca Cola Coca Cola (Tampa /Orlando) Coca Cola Baltimore Coca Cola Bottling Co. Halifax Coca Cola Bottling Company of Buffalo, Inc Coca Cola Bottling Company of Eastern Great Lakes Coca Cola North America Coca-Cola Coca-Cola at Dodge Coca-Cola Bottling Co Coca-Cola Bottling Co. Coca-Cola Bottling Company Coca-Cola Bottling Company of Eastern Great Lakes Coca-Cola Bottling Company of NY, Inc. Coca-Cola Bottling Group Coca-Cola Enterprises, Inc Coca-Cola North America Coco Pari Coffee Bean & Tea Leaf Coke Coke Cincy Colby & Partners -Orange County Cold Stone Creamery Coldwell Banker Coldwell Banker United, Realtors Cole & Parks Cole Motorsports Coleman Natural Coleman Powersports CollegeChoice/Indiana Education Savings Authority Colorado Powersports Colorgraphics Columbia Bank Columbia College Columbia Gas Columbus Square Bowling Palace-The Hadler Companies Colusa Casino Resort Comcast Comcast 07 Renews ,~. Comcast Cable Comcast Communications Comerica Bank Arizona Comerica Incorporated Comfort Inn Comfort Inn -Auburn Commerce Bank Community Health Network Compass Bank Competition Accessories Compound.Chastain ConAgra Foods Concept Foods Concert Novelties Confidential Information - Do Not Distribute Connecticut Lottery Connecticut School of Broadcasting Connelly Partners Connexions Sports and Entertainment Conoco Phillips Consolidated Media Inc. Consolidated Resorts Constellation Wines Continental Contra Costa Times Cooper Hospital Coors Coors Brewing Co Coors Brewing Company Coors House of Blues Coors Light VIP lounge Copyright (c) 2000-2007 salesforce.com, inc. All rights reserved. Cordero & Davenport Advertising Corona Corral West Costco Cottonwood Motor Sports Country Crock Country Inn - Cincy Country Inn & Suites Country INN & Suites by Carlson« Courtyard by Marriott Courtyard Hotel Courtyard Marriott -Saratoga Springs ~- Courvoisier Cowboys Dancehall Cowtown Boots Cox Communications Cox Media, Inc. Cozen O'Connor Creative Labs Inc. Creative Loafing Creative Media -Brake Team Crest Cricket Cricket Communications Cricket Wireless Crocs Crossroads Western Wear Crowfoot Ford Crown AMG Crown Automotive Crown Cab CROWN ROYAL Crowne Plaza Crowne Plaza Oceanfront Crowne Plaza WPB Crutchfield Corporation Cruzan Rum Crystal Estates Crystal Geyser Crystal Geyser Water CRYSTAL SPRINGS CSK Auto at Cricket CT Army National Guard CT Billiard Factory Ct School of Broadcasting Culver's (Jacobson Rost) Cumberland Farms Curves Curves, Inc. Custom Auto Sounds Custom Car Stereo Custom Patio Rooms Cuyahoga Community College CVS/pharmacy Cycle City Cycle Concepts Cycle World Cycles 128 Cycles USA D Canale Beverages Inca D.G. Yuengling and Son Dadada Media Group Dailey & Associates Advertising Daily Press Daimler Chrysler/Jeep/Dodge Dale and Thomas Popcorn Dallas Observer Dams Ford Lincoln Dan Wiebold Ford Dartmouth Jeep Chrysler Dodge Dave & Buster's Dave and Busters Dave and Buster's Dave's Supermarket Davis Advertising Davis Advertising (Harr Ford) DayMarc Homes D'Best Subs Dean Arbour ford (saginaw) Deborah Sandoval Del Taco Del Taco, Inc. Delhi -State University of New York - College of Technology Delta Delta Air Lines, Inc. Delta Airlines Denver Post Department of Health Department of Public Health -San Bernardino Desert Schools Devry Devry 2007 Concert Series Devry University DEX Dex Media Diageo Diageo 2007 Diageo NA ,~. Diageo North America, Inc. Diamond Gold Connection Dichello Dick Hannah Ford Dick's Sporting Goods Diesel Jeans Diet Pepsi Dillard's Direct Energy DirecTV Discount Tire Co. -San Antonio Discount Tire Co. -San Bernardino Discover Financial Services DKNY Doc's Harley-Davidson Dohm Cycles Inc. Dolby Labs Domino's Dominos Pizza Domino's Pizza Domino's Pizza, Inc. Donaghy Sales, LLC (Budweiser) Donatos Pizzeria Doner Donny's Auto Detailing Dora Brothers Hospitality Doubledaves Pizza works DOUBLETREE HOTEL Downs Racing LP Dr Pepper 7UP Bottling Group Dr. Ted Eisenberg Dreamland BBQ Dreyer's Dreyer's Grand Ice Cream-National Concessions Driver Select D-S Beverages Fargo Dublin & Associates Due North Communications -Fountain Tire Duffey Advertising Duncan honda Dunkin' Brands Dunkin' Brands Inc Dunkin Donuts Dunkin' Donuts Dunkin Donuts-Allied Domec Dunlop Tire Corp. Dunrich Holding Co Duro Tires (Pratt-Buehl) Dusty Armadillo E. & J. Gallo Winery EagleRider Earthlink/Hawser Group East Bay Motorsports East Stroudsburg University Eastgate Chrysler Plymouth Jeep Easy Ride Golf Cars Eat n Park Ecco Card Ed Martin Automotive Group E-Harmony Eharmony.com EI Dorado Hotel & Casino EI Monte RV EI Torrito ELD Performance ElDorado Furniture Eldorado Springs Water Electric Hog Electronic Arts Elevation Group of Companies Elis on Whitney Elite Marketing Group Emmis Radio Empire Gas Plus Empress Casino EMS eMusic Energizer House of Blues Enfield Motor Sports, Inc English Color & Supply Entercom Buffalo Entercom Inc. Entercom Wilkes Barre Enterprise Rent-A-Car Entertainment Publications Entertainment Weekly ,~. EPIC Erico Motorsports ESANA Med Spa Esurance Everest Institute (formerly Bryman) Evergreen Eye Center Experience Columbus Express Oil Express Way Lube Centers Expressway Dodger Extreme Audio Connections Eyeball media F.C. Tucker Factory Connection Fahlgren - McDonald's Fair Oaks Shopping Center FAIRFIELD BY MARRIOTT Fairfield Resorts Falls Distributing (Bud) Famous Dave's Famous Dave's BBQ Fantich Marketing Farm Fresh Farmers Insurance Farmland Foods Fasone and Partners (Wendy's) Fast Lane Fast Signs Fatich Media Faultline Powersports Fazoli's FCB (Ad Agency) -Taco Bell Fed Ex Fed Ex Ground Federal Realty Investment Trust Fed Ex FEED Tribe Female Health Company Fender Ferrara Pan Candy Festival Concessions Festival Media Festival Media Group - SPAM? Fiberwise Pasta .r . 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Fuhrer Wholesale Co Fraserway RV Sales Fred Meyer Fred Nesbit Distributing (bud) Frederick's Automotive Fred's RV World Freedom Tire (Goodyear) Freeport Kawasaki Frees Media Fremont Bank Frengo.com Fresno Lexus Friedman Home Improvement Friedman LLP Frito Lay Frontier Airlines FRS Powersports & Equipment Co. Fry's Electronics Fun Foods Funimation Fuse Marketing Fusion Marketing Future Brands Future Brands LLC Future Ford of Clovis Future Graphics FYE FYE/Transworld Ent G&S Suzuki Ga. Power Gaetano's Tavern on Main Gail's Harley Davidson Galardi Group Galpin ford Game On! Gameloft Gameloft -NYC ~. Gamerbus Gap Garelick Farms Garfield Suites - Cincy Garmin Garrett County Chamber of Commerce Garrow's Foods LLC Gary's Western Outpost Gateway Gateway Green Gatorade GatorWraps (vegas) Gatto Cycle shop Geico Geisinger Wyoming Valley Medical Center Gem City Ford Gem Jewelry General Electric General Electric -Keathley Advertising General Motors General Motors Corporation General Motors R~Works General RV Generated By: Pepper Parker 5/14/2007 11:18 AM Gengras Harley Davidson Genuardi's Family Markets Genworth Financial Germain Lexus Germain Motor Company Germain Toyota Get Go GetGo -Giant Eage GGuitars Giant Eagle Giant Eagle, Inc. Giant Glass Giant Supermarkets GIANT/RJC Giblee's Gibson Gillette Gillette Creamery Gillette Venus Mobile Tour ~r. 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Greenville Kawasaki Greenville Powersports (Dallas) Greenwood Chevrolet Inc Grey Eagle Greyhound Group Matrix Agency Grupo Gallegos GSD&M for Walmart GT Motorsports Guinness Guitar Center Gulf Oil Co Gulf States Toyota Gulf States Toyota, Inc. Gulf States Toyota/Scion GUNN Auto Group Gutter Cover Co. Gutterhelmet Systems Haas Automotive Hagerstown Ford HAHM Motorsports Hale's Motorsports Halifax Ford Dealer Group Halifax Motorsports Hampton Inn Hampton Inn & Suites Hampton Inn & Suites -Speedway Blvd. Hampton Inn and Fairfield Inn Hampton Inn Scranton Hard Rock Hard Rock Cafe Hardee's Hardee's -Milwaukee Hardee's (Delray) Hardee's /Initiative Promotions (Agency) Harley Davidson .r. Harley Davidson of Long Branch Harley-Davidson of Omaha Harmelin Media Harrah's Harrah's Casino Harrah's Casino Reno Harrah's Chester Slots Harrah's Joliet Harrah's St. Louis Casino & Hotel Hatfield Quality Meats Haul Em All Have A Nice Day Cafe Hawks' HCA Nashville Health Craft Heartland Automotive (Jiffy Lube) Heartland Recreational Vehicles, LLC Heaven Hills Dist. Heidelberg Distributing Heidelberg Distributing Company Heidelberg Wine - Cincy Heineken Heineken USA Heinz Helen Thompson Media Helio Helium Comedy Club Helzberg Diamonds Hennessy Jaguar Hensley Distributing Herbalife Heritage Bank of Nevada Herr Foods Inc. Hershey (Keystone Marketing) Hershey's Hertz Equipment Rental Hidy honda Powersports HiFi Buys High Life Sales (Miller) High Life Sales Company (Miller Lite) Hillbilly Cycle Hilton Anatole Hilton Boston Financial Hilton Conference Center in Scranton ,~. 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J. Walter Thompson J. Walter Thompson -Ford Dealers J. Walter Thompson (Ford) J. Walter Thompson Advertising Jack Daniels ,~ . Jack In the Box Jackson Rancheria Casino Jacksonville Motorcycle Sales Jagermeister Jamba Juice Jamba Juice Company James Limosine Jarman's Sportcycles JBL JCB J D Byrider JD Equipment Jeep Jeep (BBDO Syracuse) Jeep @ Cricket 2007 Jeffrey Scott Advertising - Wienerschnitzel Jem Management - Wendy's and KFC Jenny Craig Jerry Seiner Cadillac/GMC Jerry's Bait Shop Jersey Gardens Jersey Mike's Franchise Systems Jet Blue -Boston Jet Blue -Pittsburgh Jet Blue Airways Jetblue Airways Jiffy Lube Jiffy Lube (Indiana Lubricants, Inc.) Jiffy Lube/Winner's Circle Reno Jillian's Boston JMB Marketing (J&W Cycles) Joe Canal's Liquor Store John Casablanca Modeling and Career Center John Casablancas John Deere Worldwide Commercial & Consumer Equipment John Robert Powers Johnnie Walker R.V.'s JOHNNY BOARDS Johnny Love Vodka Johnson & Johnson Baby Johnson Lexus ,~. 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Verrastro Inc. -Coors LA Fitness Centers La Posta Casino La Quinta Inn & Suites WI Labatt Lackawanna County Convention & Visitor's Bureau Ladd's Laidlaw Chart Service Lake Erie Harley-Davidson Shop Lake Media Lala.com Lance Cunningham Ford Landry's Bicycles Landry's Restaurants Inc LaQuinta - Cincy Laredo Harley-Davidson Larry Roesch Ford Las Vegas Events LaSalle Bank Lasik Today Lasik Vision Law Office of Steve Aldaco Lawn Doctor LA-Z-Boy Furniture Galleries Le Tigre Lead Dog Marketing Lebo's Lee Jeans Leesons Import Motors Charleston Lehigh Valley Dairy Farms LeMans Corporation Lending Tree Lenovo Lenzer Coach Lines Lepow Dental Associates Les Schwab Tires Les Schwab Tires -Reno Levonian Brothers, Inc. Lewis JAdvertising -Shane Company Lexington Hobby -Columbia, SC Lexus Lexus Boston '`" Lexus Kansas City Lexus San Antonio Lexus(Omaha) LG LG Electronics LG Electronics Mobile Comm Liberty Auto Group Liberty Mutual Group Lifestyles Family Fitness Limbaugh Toyota Limousine Connection LIN Television, Inc. Lincoln Mercury Dealer Association, Inc. Line X -Reno Line-X (R&W Creative) Line-X of Hagerstown Lion's Den Live Nation Live Nation Motorsports Livelinks/Teligence LNE Group Lockhart Hummer Lojack Long and Foster Real Estate Long Island Marriott LONGFORD HOMES LongHorn Steakhouse Longs Drugs Los Angeles Zoo Lottery, The Lovelace Sandia Lowe's Lowes Foods LTP Management Lucas Oil Luk Oil LUKOIL Lukoil / Getty Luxottica Luxury Limousine LVMH Lynx Motorsports M&IBank M&T Bank M&V Limo ,~. MA State Lottery Maclyn Group -Dunkin Donuts Macy's Mad Mark's Stereo magnolia hotel Makita U.S.A, Inc. Malibu Boats Manhattan Marketing Ensemble Maragritaville Marathon Ashland Petroleum Marc USA Mares Tattooing MarcUSA -Forum Credit Union Margaritaville Spirits Marines Mark IV Mark Raya Market Smart -Subway Marketing 180 Marketing 180, Inc. Marketing Werks MarketRANGE, Inc/Perfectmatch.com Marquee Selections LLC MARRIOTT Marriott Courtyard Marriott Fairway Villas Marriott Hotels Marriott Vacation C-ub International Marriott Vacation Clubs Marten House Hotel, The Martin Equipment Marvin Windows and Doors Maryland State Lottery. 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(Subway) MediaVest Meijer Mellow Mushroom Memphis Boat Center Mennen Mercedes of Massapequa .r . Mercedes-Benz USA Merrill Lynch Met Life Met Life (Houston region) Met Life San Antonio Methodist Healthcare System Metro PCS Metro PCS Corporate Metro Taxi Metrolina Restaurant Group / Wendy's (Charlotte) MetroPCS METROPCS-PB (2006-07) Mexican Post Mexicans Airlines Michelin Microsoft Microsoft Corporation Mid America Powersports Midway Hotel Center Mike's Hard Lemonade Mikuni Millennium Marketing .Miller Miller Brands Miller Brewing Miller Brewing Co Miller Brewing Co. Miller Brewing Company Mindshare Mindshare-LA Mini Melts Mini of Charleston Missouri Department of Transportation Missouri Lottery Mitsubishi Mitsubishi Motors MIX 107.3 MLB Mobile FYI Mobile Money Moe Southwest Grill® Moe's Southwest Grill Mohegan Sun ,~. Momentum Monaco Coach/Holiday Rambler Monarch Billiards MoneyGram Monmouth Medical Center Monster Beverage Company Monster Cable Monster.com Montgomery Lincoln Mercury Ford Mopar Morgan and Morgan Law Firm Moroch Moroch - McDonald's OK City Moroch (McDonald's) Moroch Partners Mosites Motorsports Motorcity Powersports Motorcycles of Manchester Motorola Motorola House of Blues Motorrad of St. Louis MotorSports of Tampa Mountain Dew Movado Group, Inc. Movida Communications, Inc. Moyer Fine Jewelers Mr. Subb MSN Games MSN Vista Muckleshoot Indian Casino Munley, Munley, & Cartwright MVP Group MVP Health Care MySpace MZD N.F. Sheldon Harley Davidson Nabisco Nackard Bottling (Pepsi, Coors, Miller) Prescott Valley Naden Lean LLC NAPA NAPA Auto Parts NAPA Auto Parts (Distribution Center) NAPA Auto Parts Grand Rapids ,~. Napster Nashville Scene Nassau Community College Nathan & Associates, Inc., Nathan's Nathan's Famous Hot Dogs National City National City Bank National Concessions Management, LLC Nationwide Nationwide Financial Naults Honda (Clearly Creative) Navy NBC NBC Television NBC-WVTM NCLR NECA/IBEW Neely's BBQ Neil's Wheels Nemer, Fieger & Assoc (Subway MN) Nero Inc. Nesquik Nestle Nestle Purina Pet Care Nestle Waters / Ozarka Nestle Waters North America Inc. Nevada Army National Guard New England Art Institute New England Dodge (Rettenmeier Enterprises) New England Dodge Dealers New Era Cap Company Inc. New Jersey Education Association New Light Media, Inc. New West Distributing New York Lottery New York State Thruway Authority NewAlliance Bank Nexcite Next Paintball Nikon Nimnicht Cadillac/Saab 2006-07 (2007) ~r Nintendo Nintendo Canada (Inventa) Nissan Nissan - Cricket.Phoenix Nissan - LV Nissan - SD Nissan Motor Corp Nissan Motor Corp. Nissan North America, Inc. Nissan, USA NIT STP Raymond James (2007-08) NJ CURE Auto Insurance NJ Lottery NJ Transit NM ARMY NATL GUARD NMDOT Noise Marketing Nokia Nokia /Live Nation Nolet Spirits U.S.A. Nord Ride Motorsports Norkus Enterprises, Inc. North Carolina Education Lottery North Carolina Lottery North Fork Bank North Raleigh Courtyard by Marriot Northbay Motorsport and Marine Northeastern University Northern Virgnia Electric Cooperative Northwest Airlines Now You're Poppin NY Life Insurance Company NY Times Nylon Magazine, Nylon Holding Inc. O. K. TIRE & AUTO SERVICE Oceanaire Octagon Office Depot Office of Traffic Safety Official Inspection Station Ogio Ohio Department of Public Safety Ohio Lottery Ohio Lottery, The Ohio State University Oklahoma Lottery Oklahoma Lottery Commission Old National Bank Old Town Pizza Old World Industries Olive Branch Suzuki Olympic Eagle Distributing OMD - McDonald's account Omni Automotive Advertising OmPay/Smartcard One Touch Home Entertainment OnSport ooVoo Open Pantry -Milwaukee OPUS Marketing Group Orange Lake Resort & Country Club Orchard Supply Hardware O'Reilly Auto Parts Original Badass Clothing Company Original Penguin Orr Automotive Ortho Arkansas Ortholndy Osram Sylvania Otey White & Associates Outback Motorsports Outback Steakhouse Ovation Audio Video Oxford Communications P.C. Richard & Son Pacific Sunwear Palm Beach Post Palmentere Brothers Panasonic Pandora.com Papa Gino's Papa Joe's Sub Shop Papa Johns Papa John's Papa Johns - Cincy Papa Johns Pizza/Ohio Pizza Delivery Papa Murphy's Take 'N' Bake Pizza ,r Paramount Custom Cycle Paramount Harley Pardee Homes PartSource Passage Events Passage Events -Starbucks Passage Events/Starbucks Pathmark Patriot Limo Patriot News Pats Stereo Center Patterson RV Center Paul Evert's RV Country Paul Mitchell Peanut, The Pearl Hot Dogs PECO Pee Kay, Inc. Penn Distributors Penn Dot Penn State University Pennstar Bank Pep Boys, Inc. Pepsi Pepsi -Detroit Pepsi -Reno Pepsi (CB, Omaha) Pepsi Americas Pepsi Bottling Company Pepsi Bottling Group Pepsi Bottling Ventures Pepsi Cola Cincinnati Pepsi Philadelphia/SJ Pepsi-Cola Bottling Group Pepsi-Cola General Bottlers Pepsi-Cola North America Perdue Farms Incorporated Perfection Tire Performance Automotive Group Performance Cycle Center Performance Cycles Pergo Pernod Ricard Pernod Ricard (Wild Turkey). ,~. Pernod Ricard USA Peter Piper Pizza PG&E PGA National Resort & Spa Philadelphia Coca Cola Bottling Company Philadelphia Federal Credit Union Philips Consumer Electronics North America Philly Car Share Phoenix Dodge Advertising Association, Inc. Pickett Advertising Pierce Promotions Piggly Wiggly Pikeville Power Sports Pinit Motorsports Pinnacle Advertising - Braeger Ford Pinnacle Entertainment Pipeline -revised Pirelli Pit Bull Tire Company Pittsburgh Post-Gazette Pivec Advertising Pivec Advertising, Ltd. Pizza Hut Pizza Pizza PJH Brands PJWhelihan's Planet Ford Planet Smoothie Playstation Playtex Products Inc Plaza Cycle Plymouth Meeting Mall PM Group PMFE - HH Gregg PMG Incorporated PNC Bank PODS (Portable Storage, Inc.) Pontiac Pontiac GMC Pontiac, Buick GMC ,~. Pontiac, GMC Pontiac/GMC Pop Weaver Popcorn Company Port of Subs Portland Place Condominums Portland Place Condos Potawatami Casino Potter's Powers RV -Salinas PowersportsPro CB/Omaha Powertrend Cycles PRA International PREIT Premier Homes Premier Limousine Preston's Rocks Prince William Health Systems Princeton Resorts Privateers Harley Davidson Pro Cycles pro Ranch Market, Inc Pro Turbo Systems Progressive Direct Insurance PROGRESSIVE INS Providence Medical Center PSE&G Public Storage Pulaski Bank Punto Rojo Communications Purdue University Pure Gold Putnam Investments Q100 Qdoba Quality Inn & Suites Quiksilver QuikTrip Corporation Quiznos Quizno's Qwest Qwest Georgo Lopez R&S Kawasaki Radio Shack Radisson Lackawanna Station Hotel .~. 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Rick's Ranchwear Ricoh Ridenow PowerSports Management Group Riders Powersports Riders World RiverLink Ferry Rives Carlberg Robbins Bros. Robbins Brothers Robbins Diamonds Rock Bottom Rock Lobster Rock U Rockaway Bedding Rockhouse Grill Rockstar Energy Drink Rockstar Games Rockstar Inc. Rockstar, Inc. Rockwall Honda Rocque Trem Roger Dean Stadium Rogo Distributors ROI Advertising Rooms Today Rosemount Estates Roseville Midway Ford Rotella's Italian Bakery Royal Automotive Royal Bancshares of Pennsylvania, Inc. Royal Banks of Missouri Royal Caribbean Cruise Line Royal Purple RRFB Nova Scotia ?~ Rsm RTD Motorsports Ruben Postaer Alpha Russo Marine Rutgers Univ. Camden Ryder Trucking S & T Bank Saab Saatchi & Saatchi Saatchi & Saatchi (Toyota - KC Region) Sabrett Safe Auto Safe Auto Insurance Company Safeway -Salinas, CA Sagamore Insurance Saginaw Valley Ford Salinas Valley Ford Sam Adams Sam Ash Music Samsung Telecommunications America San Antonio Current San Antonio MMA San Manuel Band of Mission Indians San Manuel Indian Casino Sanders Clinic Sanders Cycles Sandia Casino SanDisk Corporation SANTA ANA STAR CASINO Santa Rosa Vee Twin Saratoga Polo Saturn Saturn of Capitol Expressway Saturn of Memphis Savane Savings Event Scarff Ford Scene Magazine Schick Schick Amplitude Marketing Group Schuylkill Valley Sports Inc Schwartz Laser Eye Center Scion Scion Northeast Sciortino Tailors Scotty's Audio and TV Sea Star Entertainment Seagate Technologies Seastreak Sebring Raceway Seminole Hard Rock Hotel & Casino Seneca Niagara Casino Sentara Sentara Healthcare ServiceMaster SF Weekly Shaker Advertising Sharks Cycle Shawmut Hills Shaw's Supermarket Shell Vacations SHELTON JEWELERS Shenandoah Crossings Sheraton Hotels Sheraton- Universal City ShopRite - Wakefern Foods Shore Cycle Sidney Frank Importing Co. Sidney Frank -VIP NY Siemens Building Technologies Siena Hotel Spa & Casino Siepser Lazer Eye Sierra Construction Sierra Mist Sierra Nevada Signature Properties Simple Twist of Fate Single Digest Racing Sinn Riding Company Sir Pizza Sirius Satellite Radio Sit'nSleep Sittercity.com Six Flags Great Adventure Skechers Skier's Choice, Inc Sky Bank Skyline Chili SkyVenture Skyview Center Skyy Vodka Sleep Inn Sleep Inn by Choice Hotels Sleep Train Sleep Train Mattress Centers Sleepy's Sling Shot Sloan's Motorcycle (MidTown Media Group) Slomin's Slush Puppie Tri-State, Inc. Smart Sign Media Smart Travel - Cincy Smirnoff / Diageo Smith & Hawken Smith Hot Dogs Smithfield Foods Smuckers Beverages Snake River Yamaha Snap On -Salinas Snap on tools Richmond Snapfish Snap-On Tools Snapple Snug Harbor Inn Snyder of Berlin SoBe Sobey's Inc. Softlips Soho Experiential Sonic Sony Card SONY Corporation of America Sony Electronics Sony Ericsson Sony Online Entertainment Sony Pictures Sorrento Cheese South Haven Kawasaki South Jersey Auto Parts ~. Southern Cal Auto Club Southern Family Market Southern Indiana Honda Southern Journey's Southern Perrier Jouet Southern Wine & Spirits Southern Wine and Spirits Southern Wine and Spirits MA Southern Wine/Moet Chandon Southern Wines & Spirits Southtown Southwest Airlines Southwest Ford Dealers Southwest Media Group Southwest RV Centers Sovereign Bank Spa Sydell sparkle Car wash Speed & Truck World Sperry Top Siders SPIN Splash Carwash Splash Event & Promotional Marketing Splashdown Mountain sponsor philly events SponsorSource, Inc. -Toyota Sport City of Jacksonville Inc Sportland Sportline Power Products Sports Media sportsvacations.com Sprint Sprint -Nextel Sprint /Nextel Sprint Nextel Sprint Wireless SPY Optics SRP St John & Partners (Southern Ford Dealers) St. John & Partners (Southern Quality Ford Dealers) St. Pete Grand Prix St. Petersburg Times ,~. St. Vincent Hospital St.Vincent Heart Center of Indiana Stanford Financial Stanford -Hilton VIP Room Staples Star 94 Star Island Motorsports Starbucks STARBUCKS COFFEE Starbucks Coffee Company Starbucks Ent Starburst State Farm State Farm Insurance Stephen & Yeaton Chevrolet Ltd. STEPS to a Healthier Cleveland Stereo West Auto Toys Stereoshop Stern Advertising Stern Advertising (McDonalds) Steve's Frozen Chillers Straders Strategic Alliance Marketing Strawberry Fields Strayer Education Street Glow Stride Mgmt. -Alberta Lottery -Legion Million Dollar Lottery Student Universe Stunt Town U.S.A. Subaru Suburban Driveline Subway Subway -Edmonton Subway -Nampa Subway -Santa Rosa SUBWAY (Asher Agency _ Glen Adv) Subway (niemer Femer) Subway Franchisee Advertising Fund Trust Summer Bay Resorts Summit Bank Sun Bank Suncoast RV ,~. Sundance Vacations Sunoco Sunoco, Inc. Sunrise Cycle and Watercraft Sunshine Vacations Sunshine Western Hats Suntimes SunTrust Suntrust Bank SunTrust Bank, Atlanta Super 8 Motel Racine Supercuts Superior Beverage Supreme Beverage (Miller) Susquehanna Bank Suzuki North Suzuki/Kawasaki of Laredo SX -Toyota Motor Sales USA Sycuan Band of the Kumyayye Nation Sycuan Resort and Casino Synergy Title and Escrow, LLC SYNLAWN Table Mountain Casino Taco Bell Taco Del Mar TAG Tag Heuer TAG Motorsports, Inc. Take 2 Talbot Wilson & Associates (Subway) Talbott Marketing, Inc. Tasty Baking Company TBWA\ChiatlDay -Tequila/ TD Banknorth Team Ford Team One Team Toyota Ted Britt Ford (CCR) Temple University Hospital Ten United Teners western wear Tenneco Automotive Tennessee Departmet of Transportation Tennessee Used Oil ,~. Terrible Herbst Terry's Hats Texas Lottery Texas Ski Ranch texas tin of Terrell Texas Yamaha TGI Friday's The Avenue District The Barnes Firm The Bauman Group The Coca Cola Company The Dannon Co., Inc. The Eagle The First National Bank The Gambrinus Company The Georgian Terrace The Heart Truth The Hive The Home Depot The Houston Press The Jordan Group (Dairy Queen) The Legends The Marketing Arm The Memorial Flag The Mortgage Store The Off-Road Connection The Onion The Ostler Group The Outdoor Channel The Pepsi Bottling Group The Plain Dealer The Progressive Corporation The Rec Room The Rim Golf Club The Sander's Clinic The Tan Company The Vein Treatment Center The Wine Gallery & Market The Wolf / KPLX theconcertgoer.com Thompson Audio Thompson Marketing Tidewater Communications, Inc. Tier One Bank ,~. Tiger Schulmann's Karate Tim Hortons -Corporate Tim O'Neill Motorsports Timbergyms Time Warner Cable Time Warner Cable Ohio Times Leader Times Union Tire and Wheel World -Salinas tire Center Inc Tire Centers, LLC Titus-Will Ford Sales Inc. TIVO TJ Maxx TLC Laser Eye Centers TMB Marketing Group -Global Powersports T-Mobile T-Mobile USA Togos Tom Wood Automotive Group Tom Wood Lexus Tomassetti Distributors Tommy Morgan Coldwell Banker Too Far Top Flight Media Torco Racing Fuels, Inc Toro Toshiba Town and Country Ford Town n Country Motorsports Townsend Ford Toyota Toyota -Milwaukee Toyota (Boston Regional Office) Toyota (Merchandising Manager) Toyota (Pivec Advertising) Toyota Bldgs -Saatchi Toyota Canada Toyota Certified Used Vehicles Toyota Courtesy Vehicles Toyota Motor Sales -Denver Region Toyota Motor Sales USA Toyota Motor Sales, U.S.A., Inc. .c Toyota Motor Sales, USA Toyota of Chula Vista TPI Metro PA Inc Tracker Marine Tractor Supply Co. TRADER PUBLICATIONS Trader Publishing Company Trail Tire Trans World Entertainment Trans World Entertainment Corp Trans World Entertainment Corp. Trans World Entertainment for F.Y.E. Travel Alberta Traveler's RV -Reno Travelodge Auburn Travelwise Treads & Sleds Tremonts Suites Trendline Marketing Trendwest Trendwest Resorts, Inc. Trib Total Media Tribe Mediterrean Foods Inc. Tri-County Equipment Triple L Powersports Triple S Tire and Brake TriStar Energy Trixie's Western Outfittters TruGreen ChemLawn Trump Ocean Resort Baja TSC Direct Tucson Motorsports Tuff Shed Tufty Tufts Tufts Health Plan Tumble Creek TUMS Diner Mobile Unit Turkey Hill Tweeter Home Entertainment Group Twenty Horse Tavern Twin Rivers ~r . Twocan Advertising -Lexington Motorsports TXU Energy Tyson U.S. Air Force U.S. Airforce - PA U.S. Army U.S. Army -Harrisburg U.S. Army - NY/CT U.S. Army -Pittsburgh U.S. Army NE U.S. Army Recruiting Battalion Nashville U.S. Army Recruiting Command (Central FL) U.S. Army Recruiting Command (North FL) U.S. Bank U.S. Cellular U.S. Department of Health & Human Services U.S. Marines Ubisoft Ultimate Class Limousine, Inc. Ultimate Hobbies Ultimate Truck Accessories UMB Bank UMMC Umstead Hotel and Spa Unbound Energy Drink Uni Filter UNILEVER Unilever Ice Cream Union Bank of California Union Beverage Union Broadcasting Inc. United Healthcare-Uniprise Strategic United Online .~. United On-Line United Rentals United Rentals, Inc. United States Army United States Marine Corps United States Marines United States Postal Service Universal Concessions Universal Hilton Universal Liquor Universal McCann Universal Studios Hollywood University of Massachussetts University of Phoenix Upper Crust UPS Upstate Farms Upstate Toyota Dealers Association US Airways US Army US Army -Mobile US Army National Guard (PA) US Army Recruiting Battalion, Harrisburg US Bank US Coast Guard US Indoor Advertising, LLC. US Marines US Navy US Navy Recruiting US Seal Coat USMC UTI/MMI Valenti Management - Wendy's Valero San Antonio Valley Recreation Vehicles Valley Yamaha of Harlingen Value City Furniture Valvoline Instant Oil Change Vandervest Custom Cycles Veolia Water Vera Bradley Designs Verizon Verizon 2007 -Nexus Properties Verizon Festival Pier Verizon FiOS Verizon Pittsburgh Verizon PNC Bank Arts Ctr Verizon VA Beach Verizon Wireless Verizon Wireless -Seattle Verizon Wireless Communications Verizon Wireless hidalgo Verizon Yellow Pages Vertex Vertical Marketing Vespa Victor's Pub Victory Lane Power Sports Vienna Beef Village Voice Media VIP Limo Virgin America Virgin Mobile Virginia honda And Yamaha Virginia Lottery Virginia Marti College Virtua Hospital Visa U.S.A. Inc. Visuwall Ink Vital Marketing Vitamin Water Vivid Sport Marketing Vizio VMA Enterprises LLC d/b/a Dropkick Media Group Volkswagen Volvo Cars Volvo Cars of North America Vonage Voss Water W Hotels Wachovia Securities Wachovia(houston) Wahl Walgreens ,~ . Walker Advertising, Inc. Walker Associates (McDonald's) Wallis Companies Wal-Mart Walnut Creek Marriott WAQY/WLZX Warehouse Shoe Sale WARREN CAT Warren's Harley-Davidson, Inc. Washington Credit Untion League Washington Lottery Washington Mutual Washington Mutual San Antonio Washington Mutual Savings Bank Washington National Guard Waste Management Waterfront Business Association wawa WCCC WDAF Fox TV4 Webloyalty Webster University Weekend Warrior Welk Resort Group Wellington Golf Cars Wellington Regional Wells Fargo Well's Fargo Wells Fargo Bank Wendys Wendys Wendys -Cedar Enterprises Wendys -Charleston Wendys -Halifax Wendys -Salinas Wendys (Blitz Media) Wendys (M2 Universal) Wendys (meritage Hospitality Group) Wendys (Raleigh) Wendys Cincy Wendys Edmonton Wendys International Wendys International, Inc Wendys International, Inc. Wendy's Midwest Wendy's of Pikeville Wendy's Philadelphia Wesgate Resorts West Hills Honda West Penn Laco Inc. West Side Honda and Kawasaki West Virginia Convention & Visitors Bureau West Wayne, Inc. Westcoast Events Westfield Mall Westin Boston Waterfront W FAA WFMS White Rock Distilleries Whitman Ford Whitt's Harley-Davidson/Buell Whole Foods Wieden Kennedy WIL Radio Wild Wing Cafe Wilke Window & Door Wilks Broadcasting Williams Crawford & Associates Williams/Crawford & Associates (Taco Bell) Willow Financial Bank Willow Tree Wilson Farms Wilson Media (1-800-ASK-GARY) Wilson's Motorcycles Windowizards Windstream Communications Wingate Inn Wireless Toyz WISH TV WJ LA-TV WNBA Be Tour WNKS/WKQC WOAI TV Wolverine Boots and Shoes Woodforest National Bank '`' Woodlands Marriot Waterway Work Out World World Class Limo World Cyber Games WPTV-TV Wrangler W RAT Wrigley WRKI WRMF-Radio WRQX WSOC/ WFNZ marketing trade WTIC-FM WTOV TV 9 WTSP News Channel 10 WTTS Radio Wunderman WVIT NBC-30 WWHO/CW WXKS FM WXXA-TV Fox 23 WYNDHAM HOTEL Wyndham Phoenix WyoTech WZLX WZLX -CBS Radio X Box Xavix XBOX XELA Communications XM Satellite Radio Xtra Mart Yale Clinical Research Yamaha Yamaha -Northeast Yamaha - VA Yamaha Canada Yamaha City Yamaha dealers Yamaha DM Yamaha Motor Corporation Yamaha Motor Corporation, U.S.A. Yamaha of Pikeville Yamaha-Watercraft Group Company Yankee Gas ,~. Yavapai Casino Yellow Pages YELLOWBOOK Yum Brands Zarda BBQ Ziebart Zimmerman & Partners Zimmerman Advertising Zions Bank Zune ,~. EXHIBIT "H" LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement"), dated , 2007, is by and between ("Licensor") whose address is and ("Licensee") whose address is For and in consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. Term. Licensor hereby grants to Licensee the privilege and license to use designated portions of certain real property located in the City of Miami Beach, Florida, which real property is operated by Licensor and known as The Fillmore Miami Beach at the Jackie Gleason Theater ("Facility"), for the "Term" of this Agreement, which shall be 2007, to include load-in and load-out of the Event (as defined below). Unless otherwise agreed in writing by Licensor, those portions of the Facility that the Licensee shall utilize are restricted to the stage and backstage area, public seating area, public concession area (e.g. the consumer side of the concession areas), interior public plazas and areas, and the loading dock. Upon the expiration of the Term or the termination of this Agreement for any reason whatsoever prior to the expiration of the Term, Licensee shall immediately quit and surrender the Facility to Licensor. Licensee shall remove any goods or chattels brought onto or permitted by Licensor to be brought onto the Facility property. For non-compliance with the provisions of this paragraph, Licensee shall pay to Licensor all costs and expenses incurred by Licensor in the removal of such goods or chattels. 2. Purpose. Licensee agrees that it shall use the Facility during the Term of this Agreement for the purpose of presenting an event ("Event") for . The Event shall be open to the public with paid admission, if applicable, during a time period within the Term as approved by Licensor. Unless otherwise agreed to in writing by Licensor, the Event shall be held at no other times. 3. Financial Settlement. In consideration for the grant of the license and use of the Facility and related services as provided herein, Licensee shall (i) pay to Licensor a fee ("License Fee") in the amount of Dollars ($ ) which is payable on or before the date of the Event, and a portion thereof shall be payable as anon-refundable deposit in the amount of Dollars ($ )which shall be due and payable on or before , 20_ [THE LICENSE FEE IS NOT APPLICABLE FOR THE FREE USES UNDER SECTIONS 2.4(a), (b), or (c) OF THE MANAGEMENT AGREEMENT AND SHOULD BE $0 IN THOSE INSTANCES] and (ii) promptly (within ten (10) business days after receipt of written invoice therefor), reimburse Licensor for all actual expenses and costs incurred by Licensor to facilitate Licensee's use of the Facility hereunder, including, without ~~ limitation, Live Nation's standard charges for janitorial, clean up, crowd and traffic control, set- up and tear-down costs and fees and charges (including for materials, labor and other services directly necessitated by the occurrence of Licensee's use of the Facility. Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. Licensor will have a first lien on all box office receipts for the Event to secure payment of all amounts owed to Licensor by Licensee hereunder. In the event that Licensee has failed to pay to Licensor the amounts owed hereunder, at the time of settlement, Licensor will have the right to retain such amounts from the box office receipts for the Event. 4. Parking. Licensor shall not be obligated to provide or cause to be provided any parking whatsoever. Specialized parking space may, at Licensor's sole discretion, be provided for Licensee's employees only, in locations designated by Licensor. Licensor shall not be responsible, under any circumstances, for any loss or damage occurring to automobiles brought onto the Facility by Licensee's employees, subcontractors or guests. 5. Merchandise and Concessions. Unless otherwise agreed upon in writing by the parties hereto, (A) Licensoe's designated food and beverage concessionaire shall sell all food and beverages and retain one hundred percent (100%) of the profits therefrom, and (B) Licensor's designated merchandise vendor shall sell all merchandise and retain one hundred percent (100%) of the profits therefrom, less taxes and any percentages owed to performing artists. Upon prior written notice from Licensee, Licensor shall ensure that there will be no sales of alcoholic beverages at the Facility during the Term. 6. Ticketing. All ticket sales for the Event shall be conducted through the Facility box office and the facilities of Licensor's designated ticketing agent. All ticket sales shall be subject to service fees, and/or facility fees as provided by Licensor. Licensor reserves the right to retain a reasonable number of complimentary tickets for the Event for Licensor's use. Licensor may have non-manifested corporate boxes and/or premium seats, for which tickets will not be included in the gross ticket receipts. If applicable, Licensor will provide all premium seat customers (including, without limitation, box and season seats) at the Facility with tickets for their regular seats for the Event at no cost to Licensor. 7. Event Advertising and Promotion. Licensee shall be responsible for producing and paying for any and all advertising and promotional materials in connection with the Event. All such materials shall be subject to the prior approval of Licensor. Licensee acknowledges and agrees that, notwithstanding any marketing or other related assistance which may be provided by Licensor (although Licensor is not obligated to provide same), Licensor has made no, and disclaims any purported or actual, representation or warranty as to the results and/or success which can be expected from the Event, including, without limitation, ticket sales and/or the profitability of the Event. Licensee acknowledges and agrees that Licensor shall in no way be responsible for the actual results from and/or the success, financial or otherwise, of the Event. .~. Form Rev Date 1/17/2007 2 8. Booth / Commercial Space. In the event that Licensee desires to sell booth/commercial space ("Booth Space") at the Facility to vendors or exhibitors or otherwise permit vendors or exhibitors at the Facility ("Vendors") in connection with the Event, Licensee shall comply with the following provisions: A. Licensee will first obtain Licensor's approval of each Vendor and that Vendor's operations in connection with the Event. B. Licensee will assume sole control and responsibility for (i) all operations of all Vendors relating to the Event and (ii) requiring Vendors to comply with any applicable Facility rules and regulations. C. Licensee will be solely responsible for the payment of any and all taxes or other fees associated with the payments received from the Vendors or the use of the Booth Space. LICENSEE SHALL NOT ALLOW ANY OF THE FOREGOING INTO THE FACILITY OR THE SURROUNDING PROPERTY AT ANY TIME, WITHOUT LICENSOR'S PRIOR WRITTEN CONSENT: INTERACTIVE PHYSICAL GAMES AND ATTRACTIONS, MECHANICAL RIDES, BODY ART AND PIERCING, EXOTIC ANIMALS AND PYROTECHNICS. IN ADDITION TO ANY OTHER INDEMNIFICATION REQUIREMENTS SET FORTH HEREIN, LICENSEE SHALL INDEMNIFY, DEFEND, BE SOLELY LIABLE FOR AND HOLD, WAIVE AND RELEASE THE LICENSOR PARTIES (AS HEREIN DEFINED), HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, INJURIES OR LOSSES ARISING OUT OF THE INSTALLATION, OPERATION AND REMOVAL OF OR IN ANY MANNER RELATED TO THE BOOTH SPACE AND THE BOOTH VENDORS. 9. Use of Name of Facility /Recording Rights. In the event that any printed materials or media is used to announce or promote the Event, Licensee shall use "The Fillmore Miami Beach at the Jackie Gleason Theater" as the name of the Facility. Licensee shall not permit any film, video, audio or other recording of the Event ("Recording") to take place without Licensor's prior written approval. In the event that Licensor does permit any Recording, the following terms and conditions shall apply to such Recording: A. Licensee and its employees, agents, representatives and contractors understand and acknowledge that the Recording shall occur in locations approved by the Licensor, and that Licensor's staff shall have the right to (i) refuse entry into any portions of the Facility in its sole discretion or (ii) stop the Recording at any time if Licensor's staff deems it reasonably necessary to do so. B. Licensee shall be responsible for any and all costs and expenses associated with the Recording, including, without limitation, union fees, additional security, Form Rev Date 1/17/2007 3 equipment, early set-up/load-in, additional phones, office space, additional labor and supplemental catering in connection with the Recording. Payment for such costs and expenses and/or reimbursement for such costs and expenses to Licensor may be required in advance of the Event or at settlement of the Event, at Licensor's sole discretion. Licensee shall advance all arrangements/requirements concerning the Recording with a designated representative of the Licensor within a reasonable period of time prior to the Recording. Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. C. Licensor reserves the right to charge an origination fee and/or shadowing fee in the amount of ($~ for the granting of Recording rights, such fee shall be payable within business days after receipt of written invoice therefor. Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. D. .Licensee shall be solely responsible for securing in writing all necessary rights, authorizations and consents of and making any necessary payments to any and all third parties whose images, likenesses, marks or interests may be involved therein, including, without limitation, any performing artists, subjects of the Recording, unions, third party contractors or their employees or representatives, Event patrons, guests and invitees of the Facility and Facility sponsors. Licensee represents and warrants that it has full power and authority to conduct the Recording and has obtained, or will caused to be obtained prior to disseminating the Recording, all of the foregoing necessary rights, authorizations and consents. E. The City of Miami Beach and Licensor shall be credited in any broadcast or other publication of the Recording. Licensee represents, warrants and covenants that nothing contained in the end use in which the Recording is used will be in any way derogatory to The City of Miami Beach or Licensor or their related companies or entities, including, without limitation, parent and subsidiary corporations and divisions, and their employees, agents and representatives or the Facility. F. In addition to any other insurance requirements set forth herein, Licensee shall maintain appropriate Errors and Omissions coverage ("E & O Coverage") applicable to the Recording with limits of not less than $1,000,000.00. Such E & O Coverage shall have standard coverage, including, but not limited to, defamation, infringement of copyright, infringement of rights in material to be broadcast or in the manner of presentation thereof, invasion of privacy rights and unauthorized use of material. The City of Miami Beach and Licensor shall be named as additional insureds on the above E & O Coverage. G. IN ADDITION TO ANY OTHER INDEMNIFICATION REQUIREMENTS SET FORTH HEREIN, LICENSEE AGREES TO DEFEND, INDEMNIFY, SHALL BE SOLELY LIABLE FOR AND HOLD, WAIVE AND ~~ RELEASE THE LICENSOR PARTIES (AS HEREIN DEFINED), HARMLESS Form Rev Date 1/17/2007 4 FROM ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES THAT MAY BE ASSERTED AGAINST THEM OR THAT THEY MAY INCUR (INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS) ARISING OUT OF RELATED TO (1) THE RECORDING AND/OR AND ANY SUBSEQUENT DISTRIBUTION AND/OR BROADCAST OF THE RECORDING OR (2) LICENSEE'S FAILURE TO OBTAIN ANY REQUIRED AUTHORIZATIONS OR CONSENTS. 10. Charitable Donations. In the event that Licensor permits and Licensee obtains the right to collect charitable donations in connection with the Event, Licensee warrants and represents that it will comply with all applicable laws, regulations and ordinances imposed by any governmental authority in collecting said donations. Licensee further agrees that it will be solely responsible for all tax and other liability related to such donations. Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. 11. Condition of Facility. A. Acceptance of Facility. Licensee accepts the condition of the Facility as is and agrees to return the Facility to Licensor in the same condition as accepted by Licensee and Licensee hereby waives any claims against Licensor and the City of Miami Beach for defects in the Facility, including latent defects. Licensee has examined the Facility and is satisfied with the condition, fitness and order thereof. Commencement of the use of the Facility by Licensee shall be conclusive that the Facility was in good repair and in satisfactory condition, fitness and order when such use commenced. Licensee shall not paint, drill into or in any way mar or deface any part of the Facility. Licensee shall immediately pay Licensor for the cost of repairing any damage to the Facility caused by the Event. Any amounts unpaid within ten (10) days after the end of the Term shall accrue interest at the maximum amount allowed by law. Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. B. No Alterations or Improvements. Licensee shall not display or erect any lettering, signs, pictures, notices or advertisements upon any part of the outside or inside of the Facility or make any alterations or improvements in or to the Facility without the prior written consent of Licensor. C. Maintenance of Facility. Licensee shall keep the Facility in an orderly condition and cause all refuse and debris to be properly discarded. Licensor will have the full right to collect and have custody of all articles and personal property left on the Facility or at the Facility after the expiration of the Term. Any property so left will be deemed abandoned by Licensee and may be disposed of by Licensor, as Licensor sees fit, without any liability for any loss, damages or costs associated with such disposal, which liability will rest solely with Licensee. Form Rev Date 1/17/2007 5 12. Representations, Warranties and Covenants. Licensor hereby represents and warrants that it has full power and authority to enter into this Agreement and to engage in the transaction contemplated hereby and that this Agreement is a valid obligation of the Licensor and is binding upon the Licensor. Licensee hereby represents and warrants that it has full power and authority to enter into this Agreement and to engage in the transaction contemplated hereby and that this Agreement is a valid obligation of the Licensee and is binding upon the Licensee. Licensee further represents and warrants that it shall not cause or permit, during the Term, any hazardous substances, which are brought onto the Facility by Licensee, to be disposed of or otherwise released onto or under the Facility. During the Term, Licensee shall obey and comply with all present and future laws, ordinances, rules and regulations of all governmental authorities in connection with the Event. Licensee warrants that any and all use or performance of copyrighted material in connection with the Event has been duly licensed and authorized by the appropriate performing rights organizations (including, without limitation, BMI, SESAC and ASCAP), copyright owners or their representatives and that any license or royalty fees owed to such persons or entities shall be paid by Licensee. LICENSEE AGREES TO DEFEND, INDEMNIFY, SHALL BE SOLELY LIABLE FOR AND HOLD, WAIVE AND RELEASE THE LICENSOR PARTIES, FROM ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES THAT MAY BE ASSERTED AGAINST THEM OR THAT THEY MAY INCUR (INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS) ARISING OUT OF RELATED TO ANY VIOLATIONS OF SUCH INTELLECTUAL PROPERTY RIGHTS OR THE LAWS RELATING THERETO. Notwithstanding the foregoing, Licensor reserves the right to collect such payments from Licensee at Event settlement and remit to appropriate parties on Licensee's behalf. .Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. 13. INDEMNIFICATION. IN ADDITION TO ANY OTHER INDEMNIFICATION REQUIREMENTS SET FORTH HEREIN, LICENSEE AGREES TO DEFEND, INDEMNIFY, SHALL BE SOLELY LIABLE FOR AND HOLD, WAIVE AND RELEASE LICENSOR AND THE CITY OF MIAMI BEACH AND EACH OF THEIR RESPECTIVE PARENTS, MEMBERS, PARTNERS, AFFILIATES, DIVISIONS AND SUBSIDIARIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (COLLECTIVELY, "LICENSOR PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, LOSSES, INJURIES, LIABILITY AND DAMAGES (INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS) ARISING OR ALLEGED TO HAVE ARISEN OUT OF (A) ANY ACT OR OMISSION OF ,~~ LICENSEE, ITS EMPLOYEES, AGENTS, VOLUNTEERS, CONTRACTORS, PATRONS, GUESTS, INVITEES, PARTICIPANTS AND PERFORMING ARTISTS; Form Rev Date 1/17/2007 6 AND/OR (B) THE PRESENTATION OR PERFORMANCE OF THE EVENT AND/OR (C) LICENSEE'S BREACH OF ANY OF THE PROVISIONS OF THIS AGREEMENT. THE PARTIES AGREE, HOWEVER, THAT THE FOREGOING INDEMNITY, WAIVER AND RELEASE DOES NOT INCLUDE ANY CLAIMS, DEMANDS, SUITS, LIABILITIES, EXPENSES, ETC. THAT ARISE OUT OF SUCH LICENSOR PARTY'S SOLE NEGLIGENCE OR WILLFUL MISCONDUCT. LICENSEE AGREES TO USE AND OCCUPY THE FACILITY AND TO PLACE MATERIAL, EQUIPMENT AND OTHER PROPERTY THEREIN AT ITS OWN RISK AND HEREBY RELEASES THE LICENSOR PARTIES FROM ALL CLAIMS FOR ANY DAMAGE OR INJURY ARISING THEREFROM. THE INDEMNIFICATION, WAIVER AND RELEASE PROVISIONS CONTAINED THROUGHOUT THIS AGREEMENT SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. Licensee will be solely responsible for the conduct and activities of Licensee's employees, agents, contractors, guests and invitees and, for purposes of the Agreement, such conduct and activities shall be deemed conduct and activities of Licensee. Licensee and its employees, agents, contractors, guests and invitees will abide by all reasonable rules and regulations adopted by Licensor for the use, occupancy and operation of the Facility. Licensee's obligations under this Section 13 shall survive the expiration or termination of this Agreement. 14. Insurance Requirements. Licensee will maintain and pay all premium costs for, and will ensure that all of Booth Vendors and other contractors of Licensee maintain and pay for, the following insurance coverages in amounts not less than specified throughout the duration of the Term: A. Statutory Workers' Compensation including Employer's Liability Insurance, subject to limits of not less than $500,000.00, affording coverage under applicable worker's compensation laws. Licensee will cause, if allowed by law, its workers' compensation carrier to waive insurers right of subrogation with respect to the Licensor Parties. B. Commercial General Liability Insurance for limits of not less than $1,000,000.00 per occurrence Bodily Injury and Property Damage combined; $1,000,000.00 per occurrence Personal and Advertising Injury; $2,000,000.00 aggregate Products and Completed Operations Liability; $100,000.00 Fire Legal Liability, and $2,000,000.00 general aggregate limit per event. The policy shall be written on an occurrence basis. C. Automobile Liability Insurance with a limit of not less than $1,000,000.00 combined and covering all owned, non-owned and hired vehicles. ,~. Form Rev Date 1/17/2007 '] D. Umbrella Liability Insurance at not less than $4,000,000.00 limit providing excess coverage over all limits and coverages noted in paragraphs B and C above. This policy shall be written on an occurrence basis. Policies B, C and D above (and, if applicable, the E & O Coverage referenced herein) shall list Licensor, The City of Miami Beach, and their respective parents, members, partners, affiliates, divisions and subsidiaries, and their respective officers, directors, shareholders, employees, agents and representatives as "Additional Insureds" with respect to any and all claims arising from Licensee's operations. Further, coverage for the "Additional Insureds" will apply on a primary basis irrespective of any other insurance, whether collectible or not. Should any additional premium be charged for such coverages or waivers, Licensee will be responsible to pay said additional premium charge to their insurer. Licensee will deliver to Licensor satisfactory evidence of the aforedescribed insurance coverage on a certificate form approved by Licensor or, if required, copies of the policies. All required insurance will be placed with carriers licensed to do business in the State of Florida, have a rating in the most current edition of A.M. Best's Property Casualty Key Rating Guide that is reasonably acceptable to Licensor and will provide thirty (30) days written notice of cancellation or non-renewal. The insurance obligations stated in this Section are independent of, and shall not be affected by the scope or validity of, any other indemnity, waiver, release or insurance provisions in other sections of this Agreement. Licensee will ensure that all of its contractors (including, without limitation, sponsors and Booth Vendors arranged by Licensee) who will be entering the Facility to engage in any business activity (including, without limitation, sampling, distributing, vending or other commercial activity) will comply with the foregoing insurance requirements and provide satisfactory evidence thereof prior to the Event. 15. Sponsorships and Signage. Licensee understands and agrees that Licensor has entered into signage and sponsorship relationships related to the Facility for which Licensor will retain all proceeds. Licensor reserves all rights to display signage at, on or near the Facility property. No signs or advertising boards, other than those authorized in writing by Licensor, will be allowed into, on or near the Facility. Licensee will not mark, cover or attempt to modify any signage at, on or near the Facility. Licensee is required to obtain Licensor's prior written approval of any sponsorship relationships into which Licensee desires to enter for the Event. 16. Licenses and Permits. Licensee will be responsible for obtaining and paying for all licenses or permits necessary for holding the Event, including, but not limited to, tax requirements and any permits required by governmental authorities for pyrotechnics or laser use. ,~. Form Rev Date 1/17/2007 g 17. Access. Licensor, its officers, directors, servants, employees, agents, concessionaires and its concessionaire's servants, employees and agents shall at all times have free access to the Facility upon presentation of passes issued by Licensor. 18. Miscellaneous. A. Third Party Beneficiaries. This Agreement does not confer, any rights or benefits upon any persons or entities other than Licensor and Licensee and their permitted, respective successors and assigns. There are no third party beneficiaries. B. Relationship of the Parties. Nothing contained in this Agreement will be deemed to constitute Licensor and Licensee as partners or joint venturers with each other. Each party acknowledges and agrees that it neither has nor will give the appearance or impression of having any legal authority to bind or commit the other party in any way. Licensee agrees that it will be solely responsible for the payment of all wages, federal, state and local income taxes, as well as all workers' compensation insurance requirements for all personnel it supplies pursuant to this Agreement. C. Entire Agreement and Modification. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and all prior agreements relative hereto which are not contained herein are terminated. This Agreement may not be amended, revised or terminated except by a written instrument executed by the Party against which enforcement of the amendment, revision or termination is asserted. D. Assignment. This Agreement or any part hereof may be assigned or transferred by Licensor to any person or entity which acquires ownership or management of the Facility. Neither this Agreement nor any part hereof shall be transferred, conveyed or assigned by Licensee without the prior written consent of Licensor. E. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State in which the Facility is located without regard to any theory of the conflict of laws. F. Use by Licensor. It is specifically agreed and understood that Licensor has the right to occupy and use the Facility during the Term and to license any portion thereof, provided that such use or license does not unreasonably interfere with Licensee's use of the Facility. G. Utilities. No interruption or malfunction of any utility services, whether such services are provided by Licensor or arranged for by Licensee, shall (i) constitute an eviction or disturbance of Licensee's use and possession of the Facility or a breach by Licensor of any obligations hereunder, (ii) render Licensor liable for damages, or (iii) entitle Licensee to be relieved of any obligations .hereunder. In the event of any such ~ r Form Rev Date 1/17/2007 9 interruption of service .provided by Licensor, Licensor shall be obligated only to use reasonable diligence to restore such service. H. .Force Majeure. The failure of any party hereto to comply with the terms and conditions hereof because of a "Force Majeure Occurrence" shall not be deemed a breach of this Agreement. "Force Majeure Occurrence" shall be defined to include, , without limitation, Act of God, strike, labor disputes, war, fire, earthquake, hurricane, tornado, flood, storm surge, acts of public enemies, acts of terrorism, epidemic, action of federal, state or local governmental authorities or an event or reason beyond the reasonable control of a party. In the event of a cancellation of the Event due to a Force Majeure Occurrence, each party shall be relieved of its obligations hereunder with respect to the performance so prevented. I. Taxes. Any and all sales tax, amusement tax or other tax imposed by local, state, provincial or federal government as a result of the presentation of the Event and/or performance of any services rendered by Licensor in connection with this Agreement hereunder, shall be the responsibility of and paid for by Licensee at the time required by law (excepting any state or federal income tax imposed on Licensor). Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. J. No Waiver of Rights. If either party fails to enforce any of the provisions of this Agreement or any rights or fails to exercise any election provided in the Agreement, it will not be considered to be a waiver of those provisions, rights or elections or in any way affect the validity of this Agreement. The failure of either party to exercise any of these provisions, rights or elections will not preclude or prejudice such party from later enforcing or exercising the same or any other provision, right or election which it may have under this Agreement. K. Invalidity. If any term, provision, covenant or condition of the Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of this Agreement will remain in full force- and effect and will in no way be affected, impaired or invalidated. L. Notices. All notices given hereunder shall be in writing and shall be deemed to have been duly given if delivered personally with receipt acknowledged or sent by registered or certified mail or equivalent, if available, return receipt requested, or by nationally recognized overnight courier for next day delivery, addressed or sent to the parties at the addresses set forth herein with a copy to Live Nation, 9348 Civic Center Drive, 3rd Floor, Beverly Hills, California, 90210, Attn: Cindy Parks, Senior Counsel, Venues and Alliances. M. Exclusive Venue And Waiver Of Trial B.y Jury. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. Form Rev Date 1/17/2007 10 BY ENTERING INTO THIS AGREEMENT, LICENSOR AND LICENSEE EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. ACCEPTED AND AGREED as of the date and year first above written. By: Name: Title: By: Name: Title: ~. Form Rev Date 1/17/2007 11 EXHIBIT "H-1" LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement"), dated 2007, is by and between ~ ("Licensor") whose address is and ("Licensee") whose address is For and in consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. Term. Licensor hereby grants to Licensee the privilege and license to use designated portions of certain real property located in the City of Miami Beach, Florida, which real property is operated by Licensor and known as The Fillmore Miami Beach at the Jackie Gleason Theater ("Facility"), for the "Term" of this Agreement, which shall be 2007, to include load-in and load-out of the Event (as defined below). Unless otherwise agreed in writing by Licensor, those portions of the Facility that the Licensee shall utilize are restricted to the stage and backstage area, public seating area, public concession area (e.g. the consumer side of the concession areas), interior public plazas and areas, and the loading dock. Upon the expiration of the Term or the termination of this Agreement for any reason whatsoever prior to the expiration of the Term, Licensee shall immediately quit and surrender the Facility to Licensor. Licensee shall remove any goods or chattels brought onto or permitted by Licensor to be brought onto the Facility property. For non-compliance with the provisions of this paragraph, Licensee shall pay to Licensor all costs and expenses incurred by Licensor in the removal of such goods or chattels. 2. Purpose. Licensee agrees that it shall use the Facility during the Term of this Agreement for the purpose of presenting an event ("Event") for . The Event shall be open to the public with paid admission, if applicable, during a time period within the Term as approved by Licensor. Unless otherwise agreed to in writing by Licensor, the Event shall beheld at no other times. 3. Financial Settlement. In consideration for the grant of the license and use of the Facility and related services as provided herein, Licensee shall promptly (within ten (10) business days after receipt of written invoice therefor), reimburse Licensor for all actual expenses and costs incurred by Licensor to facilitate Licensee's use of the Facility hereunder, including, without limitation, Live Nation's standard charges for janitorial, clean up, crowd and traffic control, set-up and tear-down costs and fees and charges (including for materials, labor and other services) directly necessitated by the occurrence of Licensee's use of the Facility. Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. ~,. 4. Parkin. Licensor shall not be obligated to provide or cause to be provided any parking~whatsoever. Specialized parking space may, at Licensor's sole discretion, be provided for Licensee's employees only, in locations designated by Licensor. Licensor shall not be responsible, under any circumstances, for any loss or damage occurring to automobiles brought onto the Facility by Licensee's employees, subcontractors or guests. 5. Merchandise and Concessions. Unless otherwise agreed upon in writing by the parties hereto, (A) Licensor's designated food and beverage concessionaire shall sell all food and beverages and retain one hundred percent (100%) of the profits therefrom, and (B) Licensor's designated merchandise vendor shall sell all merchandise and retain one hundred percent (100%) of the profits therefrom, less taxes and any percentages owed to performing artists. Upon prior written notice from Licensee, Licensor shall ensure that there will be no sales of alcoholic beverages at the Facility during the Term. 6. Ticketing. All ticket sales for the Event shall be conducted through the Facility box office and the facilities of Licensor's designated ticketing agent. All ticket sales shall be subject to service fees, and/or facility fees as provided by Licensor. Licensor reserves the right to retain a reasonable number of complimentary tickets for the Event for Licensor's use. Licensor may have non-manifested corporate boxes and/or premium seats, for which tickets will not be included in the gross ticket receipts. If applicable, Licensor will provide all premium seat customers (including, without limitation, box and season seats) at the Facility with tickets for their regular seats for the Event at no cost to Licensor. 7. Event Advertisi~ and Promotion. Licensee shall be responsible for producing and paying for any and all advertising and promotional materials in connection with the Event. All such materials shall be subject to the prior approval of Licensor. Licensee acknowledges and agrees that, notwithstanding any marketing or other related assistance which maybe provided by Licensor (although Licensor is not obligated to provide same), Licensor has made no, and disclaims any purported or actual, representation or warranty as to the results and/or success which can be expected from -the Event, including, without limitation, ticket sales and/or the profitability of the Event. Licensee acknowledges and agrees that Licensor shall in no way be responsible for the actual results from and/or the success, financial or otherwise, of the Event. 8. Booth / Commercial Space. In the event that Licensee desires to sell booth/commercial space ("Booth Space") at the Facility to vendors or exhibitors or otherwise permit vendors or exhibitors at the Facility ("Vendors") in connection with the Event, Licensee shall comply with the following provisions: A. Licensee will first obtain Licensor's approval of each Vendor and that Vendor's operations in connection with the Event. Form Rev Date 1/17/2007 2 B. Licensee will assume sole control and responsibility for (i) all operations of all Vendors relating to the Event and (ii) requiring Vendors to comply with any applicable Facility rules and regulations. C. Licensee will be solely responsible for the payment of any and all taxes or other fees associated with the payments received from the Vendors or the use of the Booth Space. LICENSEE SHALL NOT ALLOW ANY OF THE FOREGOING INTO THE FACILITY OR THE SURROUNDING PROPERTY AT ANY TIME, WITHOUT LICENSOR'S PRIOR WRITTEN CONSENT: INTERACTIVE PHYSICAL GAMES AND ATTRACTIONS, MECHANICAL RIDES, BODY ART AND PIERCING, EXOTIC ANIMALS AND PYROTECHNICS. LICENSEE SHALL BE SOLELY LIABLE FOR AND WAIVES AND RELEASES THE LICENSOR PARTIES (AS HEREIN DEFINED), FROM ANY AND ALL CLAIMS, LAWSUITS, INJURIES OR LOSSES ARISING OUT OF THE INSTALLATION, OPERATION AND REMOVAL OF OR IN ANY MANNER RELATED TO THE BOOTH SPACE AND THE BOOTH VENDORS. 9. Use of Name of Facility /Recording Rights. In the event that any printed materials or media is used to announce or promote the Event, Licensee shall use "The Fillmore Miami Beach at the Jackie Gleason Theater" as the name of the Facility. Licensee shall not permit any film, video, audio or other recording of the Event ("Recording") to take place without Licensor's prior written approval. In the event that Licensor does permit any Recording, the following terms and conditions shall apply to such Recording: A. Licensee and its employees, agents, representatives and contractors understand and acknowledge that the Recording shall occur in locations approved by the Licensor, and that Licensor's staff shall have the right to (i) refuse entry into any portions of the Facility in its sole discretion or (ii) stop the Recording at any time if Licensoe's staff deems it reasonably necessary to do so. B. Licensee shall be responsible for any and all costs and expenses associated with the Recording, including, without limitation, union fees, additional security, equipment, early set-up/load-in, additional phones, office space, additional labor and supplemental catering in connection with the Recording. Payment for such costs and expenses and/or reimbursement for such costs and expenses to Licensor may be required in advance of the Event or at settlement of the Event, at Licensor's sole discretion. Licensee shall advance all arrangements/requirements concerning the Recording with a designated representative of the Licensor within a reasonable period of time prior to the Recording. Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. .. C. Licensor reserves the right to charge an origination fee and/or shadowing Form Rev Date 1/17/2007 3 fee in the amount of ($_~ for the granting of Recording rights, such fee shall be payable within business days after receipt of written invoice therefor. Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. D. Licensee shall be solely responsible for securing in writing all necessary rights, authorizations and consents of and making any necessary payments to any and all third parties whose images, likenesses, marks or interests may be involved therein, including, without limitation, any performing artists, subjects of the Recording, unions, third party contractors or their employees or representatives, Event patrons, guests and invitees of the Facility and Facility sponsors. Licensee represents and warrants that it has full power and authority to conduct the Recording and has obtained, or will caused to be obtained prior to disseminating the Recording, all of the foregoing necessary rights, authorizations and consents. E. The City of Miami Beach and Licensor shall be credited in any broadcast or other publication of the Recording. Licensee represents, warrants and covenants that nothing contained in the end use in which the Recording is used will be in any way derogatory to The City of Miami Beach or Licensor or their related companies or entities, including, without limitation, parent and subsidiary corporations and divisions, and their employees, agents and representatives or the Facility. F. In addition to any other insurance requirements set forth herein, Licensee shall maintain appropriate Errors and Omissions coverage ("E & O Coverage") applicable to the Recording with limits of not less than $1,000,000.00. Such E & O Coverage shall have standard coverage, including, but not limited to, defamation, infringement of copyright, infringement of rights in material to be broadcast or in the manner of presentation thereof, invasion of privacy rights and unauthorized use of material. The City of Miami Beach and Licensor shall be named as additional insureds on the above E & O Coverage. G. LICENSEE SHALL BE SOLELY LIABLE FOR AND WAIVES AND RELEASES THE LICENSOR PARTIES, FROM ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES THAT MAY BE ASSERTED AGAINST THEM OR THAT THEY MAY INCUR (INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS) ARISING OUT OF RELATED TO (1) THE RECORDING AND/OR AND ANY SUBSEQUENT DISTRIBUTION AND/OR BROADCAST OF THE RECORDING OR (2) LICENSEE'S FAILURE TO OBTAIN ANY REQUIRED AUTHORIZATIONS OR CONSENTS. 10. Charitable Donations. In the event that Licensor permits and Licensee obtains the right to collect charitable donations in connection with the Event, Licensee warrants and represents that it will comply with all applicable laws, regulations and ordinances imposed by ,~, any governmental authority in collecting said donations. Licensee further agrees that it will be Form Rev Date 1/17/2007 4 solely responsible for all tax and other liability related to such donations. Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. 11. Condition of Facility. A. Acceptance of Facility. Licensee accepts the condition of the Facility as is and agrees to return the Facility to Licensor in the same condition as accepted by Licensee and Licensee hereby waives any claims against Licensor and the City of Miami Beach for defects in the Facility, including latent defects. Licensee has examined the Facility and is satisfied with the condition, fitness and order thereof. Commencement of the use of the Facility by Licensee shall be conclusive that the Facility was in good repair and in satisfactory condition, fitness and order when such use commenced. Licensee shall not paint, drill into or in any way mar or deface any part of the Facility. Licensee shall immediately pay Licensor for the cost of repairing any damage to the Facility caused by the Event. Any amounts unpaid within ten (10) days after the end of the Term shall accrue interest at the maximum amount allowed by law. Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. B. No Alterations or Improvements. Licensee shall not display or erect any lettering, signs, pictures, notices or advertisements upon any part of the outside or inside of the Facility or make any alterations or improvements in or to the Facility without the prior written consent of Licensor. C. Maintenance of Facility. Licensee shall keep the Facility in an orderly condition and cause all refuse and debris to be properly discarded. Licensor will have the full right to collect and have custody of all articles and personal property left on the Facility or at the Facility after the expiration of the Term. Any property so left will be deemed abandoned by Licensee and may be disposed of by Licensor, as Licensor sees fit, without any liability for any loss, damages or costs associated with such disposal, which liability will rest solely with Licensee. 12. Representations, Warranties and Covenants. Licensor hereby represents and warrants that it has full power and authority to enter into this Agreement and to engage in the transaction contemplated hereby and that this Agreement is a valid obligation of the Licensor and is binding upon the Licensor. Licensee hereby represents and warrants that it has full power and authority to enter into this Agreement and to engage in the transaction contemplated hereby and that this Agreement is a valid obligation of the Licensee and is binding upon the Licensee. Form Rev Date 1/17/2007 5 Licensee further represents and warrants that it shall not cause or permit, during the Term, any hazardous substances, which are brought onto the Facility by Licensee, to be disposed of or otherwise released onto or under the Facility. During the Term, Licensee shall obey and comply with all present and future laws, ordinances, rules and regulations of all governmental authorities in connection with the Event. Licensee warrants that any and all use or performance of copyrighted material in connection with the Event has been duly licensed and authorized by the appropriate performing rights organizations (including, without limitation, BMI, SESAC and ASCAP), copyright owners or their representatives and that any license or royalty fees owed to such persons or entities shall be paid by Licensee. LICENSEE SHALL BE SOLELY LIABLE FOR AND WAIVES AND RELEASES THE LICENSOR PARTIES, FROM ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES THAT MAY BE ASSERTED AGAINST THEM OR THAT THEY MAY INCUR (INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS) ARISING OUT OF RELATED TO ANY VIOLATIONS OF SUCH INTELLECTUAL PROPERTY RIGHTS OR THE LAWS RELATING THERETO. Notwithstanding the foregoing, Licensor reserves the right to collect such payments from Licensee at Event settlement and remit to appropriate parties on Licensee's behalf. Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. 13. RELEASE. LICENSEE HEREBY WAIVES AND RELEASES LICENSOR AND ITS PARENTS, MEMBERS, PARTNERS, AFFILIATES, DIVISIONS AND SUBSIDIARIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (COLLECTIVELY, "LICENSOR PARTIES") FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, LOSSES, INJURIES, LIABILITY AND DAMAGES (INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS) ARISING OR ALLEGED TO HAVE ARISEN OUT OF (A) ANY ACT OR OMISSION OF LICENSEE, ITS EMPLOYEES, AGENTS, VOLUNTEERS, CONTRACTORS, PATRONS, GUESTS, INVITEES, PARTICIPANTS AND PERFORMING ARTISTS; AND/OR (B) THE PRESENTATION OR PERFORMANCE OF THE EVENT. THE PARTIES AGREE, HOWEVER, THAT THE FOREGOING WAIVER AND RELEASE DOES NOT INCLUDE ANY CLAIMS, DEMANDS, SUITS, LIABILITIES, EXPENSES, ETC. THAT ARISE OUT OF SUCH LICENSOR PARTY'S SOLE NEGLIGENCE OR WILLFUL MISCONDUCT. LICENSEE AGREES TO USE AND OCCUPY THE FACILITY AND TO PLACE MATERIAL, EQUIPMENT AND OTHER PROPERTY THEREIN AT ITS OWN RISK AND HEREBY RELEASES THE LICENSOR PARTIES FROM ALL CLAIMS FOR ANY DAMAGE OR INJURY ARISING THEREFROM. Licensee will be solely responsible for the conduct and activities of Licensee's employees, agents, contractors, guests and invitees and, for purposes of the Agreement, such ,~. Form Rev Date 1/17/2007 conduct and activities shall be deemed conduct and activities of Licensee. Licensee and its employees, agents, contractors, guests and invitees will abide by all reasonable rules and regulations adopted by Licensor for the use, occupancy and operation of the Facility. Licensee's obligations under this Section 13 shall survive the expiration or termination of this Agreement. 14. Insurance Requirements. Licensee will maintain and pay all premium costs for, and will ensure that all of Booth Vendors and other contractors of Licensee maintain and pay for, the following insurance coverages in amounts not less than specified throughout the duration of the Term: A. Statutory Workers' Compensation including Employer's Liability Insurance, subject to limits of not less than $500,000.00, affording coverage under applicable worker's compensation laws. Licensee will cause, if allowed by law, its workers' compensation carrier to waive insurers right of subrogation with respect to the Licensor Parties. B. Commercial General Liability Insurance for limits of not less than $1,000,000.00 per occurrence Bodily Injury and Property Damage combined; $1,000,000.00 per occurrence Personal and Advertising Injury; $2,000,000.00 aggregate Products and Completed Operations Liability; $100,000.00 Fire Legal Liability, and $2,000,000.00 general aggregate limit per event. The policy shall be written on an occurrence basis. C. Automobile Liability Insurance with a limit of not less than $1,000,000.00 combined and covering all owned, non-owned and hired vehicles. D. Umbrella Liability Insurance at not less than $4,000,000.00 limit providing excess coverage over all limits and coverages noted in paragraphs B and C above. This policy shall be written on an occurrence basis. Policies B, C and D above (and, if applicable, the E & O Coverage referenced herein) shall list Licensor, The City of Miami Beach, and their respective parents, members, partners, affiliates, divisions and subsidiaries, and their respective officers, directors, shareholders, employees, agents and representatives as "Additional Insureds" with respect to any and all claims arising from Licensee's operations. Further, coverage for the "Additional Insureds" will apply on a primary basis irrespective of any other insurance, whether collectible or not. Should any additional premium be charged for such coverages or waivers, Licensee will be responsible to pay said additional premium charge to their insurer. Licensee will deliver to Licensor satisfactory evidence of the aforedescribed insurance coverage on a certificate form approved by Licensor or, if required, copies of the policies. All required insurance will be placed with carriers licensed to do business in the State of Florida, have a rating in the most current edition of A.M. Best's Property Casualty Key Rating Guide that ~. is reasonably acceptable to Licensor and will provide thirty (30) days written notice of cancellation or non-renewal. Licensee may elect to self-insure for the insurance coverage Form Rev Date 1/17/2007 ~ required above, and if Licensee makes such an election, Licensee shall send to Licensor a letter from Licensee's Risk Manager agreeing to provide coverage as required above on a self- insurance basis and certifying that such self-insurance shall not reduce the coverage to Licensor as required above. The insurance obligations stated in this Section are independent of, and shall not be affected by the scope or validity of, any other waiver, release or insurance provisions in other sections of this Agreement. Licensee will ensure that all of its contractors (including, without limitation, sponsors and Booth Vendors arranged by Licensee) who will be entering the Facility to engage in any business activity (including, without limitation, sampling, distributing, vending or other commercial activity) will comply with the foregoing insurance requirements and provide satisfactory evidence thereof prior to the Event. 15. Sponsorships and Si~n~,e. Licensee understands and agrees that Licensor has entered into signage and sponsorship relationships related to the Facility for which Licensor will retain all proceeds. Licensor reserves all rights to display signage at, on or near the Facility property. No signs or advertising boards, other than those authorized in writing by Licensor, will be allowed into, on or near the Facility. Licensee will not mark, cover or attempt to modify any signage at, on or near the Facility. Licensee is required to obtain Licensor's prior written approval of any sponsorship relationships into which Licensee desires to enter for the Event. 16. Licenses and Permits. Licensee will be responsible for obtaining and paying for all licenses or permits necessary for holding the Event, including, but not limited to, tax requirements and any permits required by governmental authorities for pyrotechnics or laser use. 17. Access. Licensor, its officers, directors, servants, employees, agents, concessionaires and its concessionaire's servants, employees and agents shall at all times have free access to the Facility upon presentation of passes issued by Licensor. 18. Miscellaneous. A. Third Party Beneficiaries.. This Agreement does not confer any rights or benefits upon any persons or entities other than Licensor and Licensee and their permitted, respective successors and assigns. There are no third party beneficiaries. B. Relationship of the Parties. Nothing contained in this Agreement will be deemed to constitute Licensor and Licensee as partners or joint venturers with each other. Each party acknowledges and agrees that it neither has nor will give the appearance or impression of having any legal authority to bind or commit the other party in any way. ,~, Licensee agrees that it will be solely responsible for the payment of all wages, federal, Form Rev Date 1/17/2007 g state and local income taxes, as well as all workers' compensation insurance requirements for all personnel it supplies pursuant to this Agreement. C. Entire Agreement and Modification. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and all prior agreements relative hereto which are not contained herein are terminated. This Agreement may not be amended, revised or terminated except by a written instrument executed by the Party against which enforcement of the amendment, revision or termination is asserted. D. Assignment. This Agreement or any part hereof may be assigned or transferred by Licensor to any person or entity which acquires ownership or management of the Facility. Neither this Agreement nor any part hereof shall be transferred, conveyed or assigned by Licensee without the prior written consent of Licensor. E. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State in which the Facility is located without regard to any theory of the conflict of laws. F. Use by Licensor. It is specifically agreed and understood that Licensor has the right to occupy and use the Facility during the Term and to license any portion thereof, provided that such use or license does not unreasonably interfere with Licensee's use of the Facility. G. Utilities. No interruption or malfunction of any utility services, whether such services are provided by Licensor or arranged for by Licensee, shall (i) constitute an eviction or disturbance of Licensee's use and possession of the Facility or a breach by Licensor of any obligations hereunder, (ii) render Licensor liable for damages, or (iii) entitle Licensee to be relieved of any obligations hereunder. In the event of any such interruption of service provided by Licensor, Licensor shall be obligated only to use reasonable diligence to restore such service. H. Force Majeure. The failure of any party hereto to comply with the terms and conditions hereof because of a "Force Majeure Occurrence" shall not be deemed a breach of this Agreement. "Force Majeure Occurrence" shall be defined to include, without limitation, Act of God, strike, labor disputes, war, fire, earthquake, hurricane, tornado, flood, storm surge, acts of public enemies, acts of terrorism, epidemic, action of federal, state or local governmental authorities or an event or reason beyond the reasonable control of a party. In the event of a cancellation of the Event due to a Force Majeure Occurrence, each party shall be relieved of its obligations hereunder with respect to the performance so prevented. I. Taxes. Any and all sales tax, amusement tax or other tax imposed by ,~ local, state, provincial or federal government as a result of the presentation of the Event and/or performance of any services rendered by Licensor in connection with this Form Rev Date 1/17/2007 9 Agreement hereunder, shall be the responsibility of and paid for by Licensee at the time required by law (excepting any state or federal income tax imposed on Licensor). Licensee's obligations under this paragraph shall survive the expiration or termination of this Agreement. J. No Waiver of Rights. If either party fails to enforce any of the provisions of this Agreement or any rights or fails to exercise any ,election provided in the Agreement, it will not be considered to be a waiver of those provisions, rights or elections or in any way affect the validity of this Agreement. The failure of either party to exercise any of these provisions, rights or elections will not preclude or prejudice such party from later enforcing or exercising the same or any other provision, right or election which it may have under this Agreement. K. Invalidity. If any term, provision, covenant or condition of the Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of this Agreement will remain in full force and effect and will in no way be affected, impaired or invalidated. L. Notices. All notices given hereunder shall be in writing and shall be deemed to have been duly given if delivered personally with receipt acknowledged or sent by registered or certified mail or equivalent, if available, return receipt requested, or by nationally recognized overnight courier for next day delivery, addressed or sent to the parties at the addresses set forth herein with a copy to Live Nation, 9348 Civic Center Drive, 3rd Floor; Beverly Hills, California, 90210, Attn: Cindy Parks, Senior Counsel, Venues and Alliances. M. Exclusive Venue And Waiver Of Trial By Jury. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING 1NT0 THIS AGREEMENT, LICENSOR AND LICENSEE EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. ACCEPTED AND AGREED as of the date and year first above written. By: Name: Title: By: Name: Title: ,~. Form Rev Date 1/17/2007 10