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Exhibit 10.24
NAMING RIGHTS AGREEMENT
This Naming Rights Agreement (the "Agreement"), is made and entered
into as of the 24th day of November, 1999 (the "Execution Date"), by and between
the Nashville Hockey Club Limited Partnership, a Wisconsin limited partnership
(the "Club"), and ▇▇▇▇▇▇▇ Entertainment Company, a Delaware corporation
("▇▇▇▇▇▇▇").
RECITALS:
WHEREAS, the Club owns and operates the "Nashville Predators," a
professional hockey team franchised by the National Hockey League (the "NHL") to
play its home games in Nashville, Tennessee;
WHEREAS, pursuant to that certain License and Use Agreement (the "Use
Agreement"), dated as of June 25, 1997, by and between the Sports Authority of
the Metropolitan Government of Nashville and Davidson County (the "Authority")
and the Club, the Club has been granted certain license and use rights with
regard to that certain facility commonly known as the "Nashville Arena" located
on the land described on Exhibit A hereto (the "Arena");
WHEREAS, pursuant to Article 18.1 of the Use Agreement, the Authority
granted the Club the exclusive power and authority to sell the right to name the
Arena to a sponsor or sponsors; and
WHEREAS, ▇▇▇▇▇▇▇ desires to acquire from the Club the right to name the
Arena, and the Club desires to transfer to ▇▇▇▇▇▇▇ the right to name the Arena,
all in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. TERM
1.1 TERM. The term of this Agreement (the "Term") shall be deemed to
have commenced on August 4, 1999 (the "Commencement Date") and shall terminate,
without the need for notice from either party, on August 3, 2019 (the
"Expiration Date"), unless terminated earlier in accordance with the terms
hereof.
1.2 RIGHT OF FIRST REFUSAL. No later than January 1, 2019, the Club and
▇▇▇▇▇▇▇ shall commence good faith and exclusive negotiations regarding the terms
and conditions for a new naming rights agreements similar in nature to this
Agreement. If the parties do not execute a new naming rights agreement by April
1, 2019, then the Club shall provide ▇▇▇▇▇▇▇ with a final offer for an exclusive
naming rights agreement. ▇▇▇▇▇▇▇ will have ten (10) business days from the date
that such offer is presented by the Club to accept or reject such offer. If
▇▇▇▇▇▇▇ rejects the Club's offer, then the Club will be entitled to negotiate
and execute a naming rights agreement with any other person or entity; provided,
however, that the Club shall not enter into any agreement or accept any third
party offer containing terms and conditions which, in the aggregate, are
materially less
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favorable to the Club than those contained in the offer to ▇▇▇▇▇▇▇, without
first offering to enter into a naming rights agreement with ▇▇▇▇▇▇▇ on similar
terms (the "Third Party Offer"). ▇▇▇▇▇▇▇ shall have five (5) business days to
respond to the Club following receipt of written notice by ▇▇▇▇▇▇▇ of any Third
Party Offer received by the Club which the Club is willing to accept. If ▇▇▇▇▇▇▇
declines to accept the Third Party Offer, the Club shall be free to enter into a
naming rights agreement with such third party on the basis of the Third Party
Offer. Should the Club not enter into a naming rights agreement based on such
Third Party Offer, then the Club shall not enter into any other naming rights
agreement on terms and conditions which, in the aggregate, are materially less
favorable to the Club than the Third Party Offer, without first giving ▇▇▇▇▇▇▇
the opportunity to match such other terms and conditions.
SECTION 2. NAMING RIGHTS; PROMOTIONAL EXPOSURE.
2.1 NAMING RIGHTS; LOGO. As of the Commencement Date, the Club hereby
grants to ▇▇▇▇▇▇▇ the exclusive right to rename the Arena as the "▇▇▇▇▇▇▇
Entertainment Center," and hereby agrees, subject to the terms and conditions of
this Agreement, to rename the Arena as the ▇▇▇▇▇▇▇ Entertainment Center. ▇▇▇▇▇▇▇
shall be entitled to develop an appropriate logo or symbol for the ▇▇▇▇▇▇▇
Entertainment Center, such logo or symbol to be subject to the reasonable
approval of the Club. Attached hereto as Exhibit B is a copy of an
Acknowledgement executed by the Authority approving the renaming of the Arena as
the ▇▇▇▇▇▇▇ Entertainment Center in accordance with the terms and conditions of
Section 18.1 of the Use Agreement.
2.2 EXPOSURE OF ▇▇▇▇▇▇▇ ENTERTAINMENT CENTER NAME AND LOGO; OTHER
SIGNAGE AND ADVERTISING. In addition to the naming rights granted to ▇▇▇▇▇▇▇
pursuant to Section 2.1 above, ▇▇▇▇▇▇▇ will be entitled to certain signage or
other forms of advertisement in, on, or around the ▇▇▇▇▇▇▇ Entertainment Center,
all such signage or advertisements (i) to promote ▇▇▇▇▇▇▇ and/or its various
subsidiaries, (ii) to be mutually agreed upon by the parties , (iii) to conform
generally to the architectural design and specifications detailed in the HOK
Arena Architectural Design Specifications which are attached as Exhibit C hereto
(the "HOK Specifications"), and (iv) to be hung, posted, or placed in the
locations detailed below:
(a) EXTERIOR SIGNAGE.
(i) A sign on Sixth and Broadway facing west towards the
Baptist Church (dimensions of 48" x 42");
(ii) Signage upon three facings of the tri-vision (dimensions
of 16' x 12');
(iii) Signage on the WSM-WTN radio tower to be constructed on
the Arena's property (the "Radio Tower");
(iv) Signage on the marquis;
(v) A sign over the main entrance to the Arena on Broadway
(dimensions of 48" x 42");
(vi) A sign on Fifth and Demonbreun facing east (dimensions
of 48" x 42");
(vii) A sign over the south entrance to the Arena on the west
side of the Arena (dimensions of 48" x 42");
(viii) A sign on the wall located near the south entrance of
the Arena;
(ix) A sign on the top level of the garage, which is located
at Sixth and Demonbreun, facing west (dimensions of 48"
x 42"); and
(x) A sign on the roof of the Arena (dimensions of 192" x
530").
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The parties hereby acknowledge and agree that the final location and size of all
exterior signage and advertisements, including without limitation, the location,
design, plans, and buildout for the Radio Tower, are subject to approval by the
Metropolitan Development and Housing Agency ("MDHA"). Furthermore, the parties
acknowledge and agree that any and all signage referenced in this Section
2.2(a), with the exception of the signage referenced in Sections 2.2(a)(ii) and
(iii), shall be used solely for the purpose of identifying the ▇▇▇▇▇▇▇
Entertainment Center and displaying the ▇▇▇▇▇▇▇ Entertainment Center logo.
(b) INTERIOR LOCATIONS.
(i) Four (4) upper level permanent signage panels on the
scoreboard each measuring 16' 1" x 2' 10";
(ii) Lower level and back lit spectacular located in the main
food court on the concourse level (dimensions of 20' x
12');
(iii) The ▇▇▇▇▇▇▇ Entertainment Center logo on the basketball
floor;
(iv) The ▇▇▇▇▇▇▇ Entertainment Center logo on center ice,
which ▇▇▇▇▇▇▇ acknowledges must be in accordance with
the NHL's sight guidelines;
(v) A buildout of the Hall of Fame corridor;
(vi) One position on a rotational dasher board measuring 9'
8" x 31.5"; and
(vii) Signage on the band stage for Predators games.
The parties agree that the Club will be responsible for the first Twenty Five
Thousand Dollars ($25,000) in costs incurred for the buildout of the Hall of
Fame corridor and/or the Radio Tower. ▇▇▇▇▇▇▇ will be responsible for any costs
incurred in excess of $25,000 for such buildouts of the Hall of Fame corridor
and Radio Tower.
(c) MEDIA ADVERTISING.
(i) Two (2) thirty (30) second advertisements during each
Predators controlled pre-season and regular season
television broadcast;
(ii) Two (2) sixty (60) second advertisements during each
Predators controlled pre-season and regular season radio
broadcast;
(iii) Floating billboards on each Predators' radio and
television broadcast;
(iv) Prominent identification on the Predators' internet web
site, such identification to be equal in stature or
prominence to the current identification on the
Predators' web site as of the Execution Date; and
(v) One full page advertisement in each Predators'
publication, including the Predators Press (game
program), Saber Tooth Times (season ticket holder
monthly publication), and Media Guide.
▇▇▇▇▇▇▇ shall be responsible for all production costs associated with any media
advertisements and shall comply with all scheduling, layout, and production
requirements imposed by the media producer or broadcaster.
2.3 REPLACEMENT SIGNAGE. The parties hereby acknowledge and agree that
certain of the signs and advertisements detailed in Section 2.2 above may become
unavailable for reasons which are unforeseen by either party at this time.
Attached hereto as Exhibit D is a document agreed to by both parties which
assigns a certain valuation to each individual sign or advertisement detailed in
Section 2.2. The Club and ▇▇▇▇▇▇▇ hereby agree that if any individual sign or
advertisement should
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become unavailable for any reason whatsoever, then ▇▇▇▇▇▇▇ shall be granted (i)
additional signage or advertisements in the Arena and/or (ii) additional
advertisements in or on the Club's media properties, of an equal or comparable
value to the valuation ascribed in Exhibit D for such unavailable signage or
advertisement. If the Club is unable to substitute signage or advertisements of
similar value, then ▇▇▇▇▇▇▇ and the Club shall attempt in good faith to agree
upon additional mutually acceptable promotional benefits that will provide
▇▇▇▇▇▇▇ with substantially equivalent promotional or advertising benefits as the
cancelled benefits. ▇▇▇▇▇▇▇ and the Club may agree to extend some or all of the
use of the signage or advertisements for additional periods to provide ▇▇▇▇▇▇▇
with substantially equivalent promotional benefits, or if no such alternative
benefits shall be reasonably acceptable to ▇▇▇▇▇▇▇ and the Club, then to a
reduction in the amount of fees payable by ▇▇▇▇▇▇▇ hereunder.
2.4 ASSIGNMENT OF SIGNAGE OR ADVERTISING RIGHTS. The Club hereby
acknowledges and agrees that Gaylord shall be entitled to sell or assign to, or
to use for the benefit of, any of its various affiliates or subsidiaries
(hereinafter collectively referred to as a "▇▇▇▇▇▇▇ Subsidiary"), which (i)
exist as of the Execution Date (each an "Existing ▇▇▇▇▇▇▇ Subsidiary") or (ii)
are created or acquired after the Execution Date (each a "New ▇▇▇▇▇▇▇
Subsidiary"), any of the signage or advertisements acquired pursuant to Sections
2.2 or 2.3 above; provided, however, that ▇▇▇▇▇▇▇ acknowledges and agrees that
it will not be entitled to advertise by any means in the Arena any New ▇▇▇▇▇▇▇
Subsidiary, which is a competitor to one of the Club's "exclusive" sponsors, in
that exclusive sponsor's specific exclusive industry category, unless such New
▇▇▇▇▇▇▇ Subsidiary's primary business operations are in the "hospitality
industry" or "entertainment industry". Furthermore, the Club acknowledges and
agrees that ▇▇▇▇▇▇▇ shall be entitled to sell or assign to, or use for the
benefit of, any of Gaylord's strategic marketing "partners" with which it has a
contractual marketing alliance a portion of any of the signage or advertisements
acquired pursuant to Section 2.2 or 2.3 above for purposes of a co-branded
message or advertisement for the benefit of ▇▇▇▇▇▇▇, or a ▇▇▇▇▇▇▇ Subsidiary,
and such ▇▇▇▇▇▇▇ "partner"; provided, however, that ▇▇▇▇▇▇▇ acknowledges and
agrees that it shall not be entitled to use any of such signage or
advertisements for the benefit of a marketing partner if (i) such partner is a
competitor to one of the Club's exclusive sponsors in that exclusive sponsor's
specific exclusive industry category, (ii) such sale or assignment is at a price
below the price currently being charged by the Club for similar signage or
advertisements, (iii) the Club has an existing inventory of similar signage or
advertisements which could be sold to such "partner", or (iv) the Club has made
a written proposal for the purchase of Arena signage or advertisement to such
"partner" within the prior six months, such proposal has not been rejected, and
the Club and such partner are in current negotiations for the purchase of Arena
signage or advertisements. Attached hereto as Exhibit E is a list of the
Existing ▇▇▇▇▇▇▇ Subsidiaries, and their various trade names and principal
industries, such list to be updated from time to time by the giving of notice to
the Club as New ▇▇▇▇▇▇▇ Subsidiaries are added or ▇▇▇▇▇▇▇ Subsidiaries are
deleted. Attached hereto as Exhibit F is a list of the Club's "exclusive"
sponsors and those exclusive sponsor's specific exclusive industry categories as
of the Execution Date, such list to be updated from time to time by the giving
of written notice to ▇▇▇▇▇▇▇ as exclusive sponsors are added or deleted. For
purposes of this Section 2.4, the following definitions shall apply: (i)
"affiliate" shall mean any entity which is owned or controlled by, is under
common ownership or control, or shares common ownership or control with ▇▇▇▇▇▇▇
or the Club (the term "control", including without limitation, the terms
"controlled by" and "under common control with", means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of an entity, whether through the ownership of voting securities,
by contract, or otherwise); (ii) "hospitality industry" shall mean for profit
businesses engaged in the ownership or management of hotels or motels; and (iii)
"entertainment industry" shall mean for profit businesses engaged in the
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creation or production of video, film, television, musical, literary, or live
entertainment for a mass audience or the distribution of such entertainment to a
mass audience through an Existing ▇▇▇▇▇▇▇ Subsidiary, or the internet.
2.5 REMOVAL OF EXISTING SIGNAGE; INSTALLATION OF ▇▇▇▇▇▇▇ ENTERTAINMENT
CENTER SIGNAGE. The Club agrees, at its sole cost and expense, to remove, or to
cause Powers, as defined in Section 5 below, to remove, any and all signage or
advertisements in, on, or around the Arena referencing the "Nashville Arena".
Likewise, the Club agrees to hang, post, or place, or to cause Powers to hang,
post, or place, at the Club's sole cost and expense, any and all of the signage
or advertisements referencing the ▇▇▇▇▇▇▇ Entertainment Center, ▇▇▇▇▇▇▇, and/or
Gaylord's subsidiaries detailed in Section 2.2 above. Notwithstanding the prior
sentence, ▇▇▇▇▇▇▇ acknowledges and agrees that attached hereto as Exhibit G is a
collection of valid and acceptable bids to convert the existing signage to
▇▇▇▇▇▇▇ Entertainment Center or ▇▇▇▇▇▇▇ signage in accordance with the HOK
Specifications for an aggregate cost of Two Hundred and Fifty Two Thousand
Dollars ($252,000); and in the event ▇▇▇▇▇▇▇ requests any changes or
modifications to the HOK Specifications or the agreed upon ▇▇▇▇▇▇▇ signage and
such changes or modifications cause the cost of such conversion to exceed Two
Hundred and Fifty Two Thousand Dollars ($252,000), then ▇▇▇▇▇▇▇ shall pay any
costs in excess of Two Hundred and Fifty Two Thousand Dollars ($252,000) which
are incurred as a result of such changes or modifications requested by ▇▇▇▇▇▇▇.
2.6 RIGHT TO RENAME THE ▇▇▇▇▇▇▇ ENTERTAINMENT CENTER. ▇▇▇▇▇▇▇ and its
successors and assigns shall be entitled to rename the ▇▇▇▇▇▇▇ Entertainment
Center, subject to the prior written approval of the Club, such approval not to
be unreasonably withheld, and subject to the prior written consent of the
Authority, such consent to be given in accordance with the terms of Section 18.1
of the Use Agreement. ▇▇▇▇▇▇▇ hereby acknowledges and agrees that any and all
costs associated with such renaming of the ▇▇▇▇▇▇▇ Entertainment Center shall be
the responsibility of ▇▇▇▇▇▇▇ or its successors or assigns.
2.7 CHANGE OF SIGNAGE. ▇▇▇▇▇▇▇ shall have the right to change the
signage outlined in Section 2.2 above during the Term of this Agreement upon
reasonable notice to the Club. Any costs associated with the change of signage
shall be at the sole expense of ▇▇▇▇▇▇▇. All advertising messages displayed on
such signage shall be in good taste and shall not violate community standards.
2.8 SIGN MAINTENANCE. The Club, at its sole cost and expense, shall
conduct, or shall cause Powers to conduct, all necessary, routine, preventative,
and long term repair and maintenance of the ▇▇▇▇▇▇▇ signage after installation
to keep such signs in good condition and repair, reasonable wear and tear
accepted. The Club's or Powers' repair and maintenance will include maintenance,
repair and replacements of all electrical, mechanical and structural components
of such signage after installation.
2.9 TYPE OF AGREEMENT. The parties understand, intend and agree that
this Agreement, is a naming rights agreement and not a license to use real
property. It is understood and agreed that ▇▇▇▇▇▇▇ shall not have the right to
access the advertising signage or the devices, scoreboards or other surfaces
upon which such signage shall be placed. If such signage requires replacement,
removal, repair or modification during the Term of this Agreement, the Club or
Powers exclusively shall perform the same.
2.10 GOVERNMENT APPROVALS. The parties acknowledge and agree that all
signage that is intended to be displayed on the exterior of the Arena and its
surrounding plazas, parking lots,
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landscaped areas and approaching roadways, shall be subject to the applicable
requirements of the Metropolitan Government of Nashville and Davidson County and
the State of Tennessee. Accordingly, all such advertising signage shall comply
with all applicable governmental rules and regulations and with the Use
Agreement.
2.11 NHL RULES. The parties hereto agree that this Agreement
automatically will be subject to any new or amended NHL regulations applicable
to advertising effective as of the date such regulation shall take effect and
that this Agreement shall incorporate and be subject to the Constitution,
By-Laws, rules and regulations, and the duly authorized resolutions of the NHL,
the decrees and rulings of the Commissioner or designees of the NHL and the
terms and conditions of any and all agreements to which the NHL is a party and
to which the NHL has bound its member clubs (collectively, all of such
regulations, resolutions, decrees and agreements are referred to as the
"Governing League Policies"). The Club shall advise ▇▇▇▇▇▇▇ of any changes to
the Governing League Policies which may materially affect this Agreement. In the
event that any new or amended Governing League Policies materially affect the
terms of this Agreement, including, but not limited to, any of the benefits
afforded to ▇▇▇▇▇▇▇ hereunder, then the Club acknowledges and agrees that it
shall be responsible for any and all costs incurred by the parties in modifying
the terms of this Agreement to provide ▇▇▇▇▇▇▇ with new or substitute benefits,
including, but not limited to, any replacement signage or advertisements
pursuant to Section 2.3 above.
2.12 LEAGUE SPONSOR. Except as otherwise provided herein, ▇▇▇▇▇▇▇
agrees that the Club, Powers, or NHL Properties, Inc. may allow or authorize any
League Sponsor (as defined below) to engage in advertising and promotional
activities in the Club's market (including, without limitation, the Arena), or
otherwise provide benefits to such League Sponsor, if the Club is required to
allow a League Sponsor to engage in such activities or receive such benefits
pursuant to any sponsorship or promotional licensing arrangement now or
hereafter entered into between such League Sponsor and the NHL or any affiliates
of the NHL (including, without limitation, NHL Enterprises, Inc. and NHL
Enterprises Canada, Inc.). League Sponsor means any person or entity which
currently is, or at anytime becomes, a sponsor or promotional licensee of or
with respect to any NHL event or program now or hereafter in existence. By way
of illustration only and without limiting the generality of the foregoing,
League Sponsors may place advertising and promotional materials (including
displays) in the Arena, in connection with a League Event, such as the NHL
All-Star game, the ▇▇▇▇▇▇▇ Cup Playoffs, or in support of a League program. In
no event shall a League Sponsor's rights supersede or preclude Gaylord's
exercise of rights hereunder (however, such rights may no longer remain
exclusive rights).
2.13 ARENA RULES; PERMANENT SIGNAGE AND ADVERTISING POLICY. ▇▇▇▇▇▇▇ and
the Club agree that this Agreement shall be performed in accordance with the
reasonable health and safety rules and policies of the Arena, as may be
applicable to this Agreement. Furthermore, notwithstanding any other provision
of this Agreement, the terms of this Agreement shall, in all respects, be
subject to and subordinate to that certain ▇▇▇▇▇▇▇ Entertainment Center
Permanent Signage and Advertising Policy as amended from time to time by Powers,
LMI, or the current manager of the Arena, a copy of which is attached hereto as
Exhibit H; provided, however, that the Club acknowledges and agrees that (i)
▇▇▇▇▇▇▇ will be provided with written notification if the view of any of
Gaylord's signage or advertisements should be precluded pursuant to Section IIA
of such policy, and (ii) Gaylord's outdoor advertisement will not be affected
pursuant to such Policy.
SECTION 3. NAMING RIGHTS FEE. In consideration for the Club's agreement to
rename the Arena as the "▇▇▇▇▇▇▇ Entertainment Center", and to confer upon
▇▇▇▇▇▇▇ all other rights detailed in this
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Agreement, ▇▇▇▇▇▇▇ agrees to pay the Club an annual fee (the "Naming Rights
Fee") during each year (August 4 through August 3) of the Term. The Naming
Rights Fee for the first year of the Term shall be Two Million Fifty Thousand
Dollars ($2,050,000.00). ▇▇▇▇▇▇▇ and the Club acknowledge and agree that the
Naming Rights Fee shall be increased during each successive year of the Term by
an amount equal to five percent (5%) of the then current Naming Rights Fee. The
parties agree that during each year of the Term the Naming Rights Fee will be
paid in two equal installments due on January 1 and July 1 of that year;
provided, however, that during the first year of the Term one-half of the Naming
Rights Fee will be due upon the Execution Date with the remainder due on January
1, 2000.
SECTION 4. SEASON TICKETS. During the first year of the Term, ▇▇▇▇▇▇▇ agrees to
purchase from the Club that number of season tickets to Predators' home games
necessary to equal or exceed a cumulative value equal to three hundred
fifty-nine (359) multiplied by the average ticket price per season ticket sold
that year. The price for each season ticket will be the published price for such
ticket. Tickets will be selected by Gaylord from those available for purchase.
During the second and third years of the Term, ▇▇▇▇▇▇▇ agrees to purchase from
the Club that number of season tickets necessary to equal or exceed a cumulative
value equal to three hundred (300) multiplied by the average ticket price per
season ticket sold during that year of the Term. During years four through
twenty of the Term, ▇▇▇▇▇▇▇ agrees to use reasonable commercial efforts (with
due consideration to be given to Gaylord's then current profitability) to
purchase from the Club that number of season tickets necessary to equal or
exceed a cumulative value equal to the average ticket price per season ticket
sold during that year of the Term multiplied by: (a) three hundred (300) for
year four of the Term; (b) two hundred fifty (250) for years five through ten;
(c) two hundred (200) for years eleven through fifteen; and (d) one hundred
fifty (150) for years sixteen through twenty (the "Targeted Number of Tickets").
Notwithstanding the prior sentence, ▇▇▇▇▇▇▇ acknowledges and agrees that, during
years four through twenty of the Term, it will annually purchase from the Club
at least that number of season tickets necessary to equal or exceed a cumulative
value equal to the average ticket price per season ticket sold during that year
of the Term multiplied by one hundred fifty (150) (the "Minimum Number of
Tickets"). The parties agree that with regard to years four through twenty of
the Term, ▇▇▇▇▇▇▇ will be obligated to purchase the Targeted Number of Tickets
for each individual year, unless it gives the Club written notice of its
decision not to purchase the Targeted Number of Tickets for an individual year
on or before February 15 of the preceding year, together with a written
explanation of the reasons for not purchasing the Targeted Number of Tickets.
SECTION 5. POWERS MANAGEMENT. The Club and ▇▇▇▇▇▇▇ acknowledge that, pursuant to
that certain Operating and Management Agreement (the "Operating Agreement"), by
and between the Authority and Powers Management, L.L.C. ("Powers"), dated as of
June 25, 1997, Powers was granted full power and authority to operate the Arena.
Likewise, pursuant to that certain Management and Consulting Agreement for the
Nashville Arena (the "Management Agreement"), by and between Powers and LMI/HHI,
Ltd. d/b/a Leisure Management International ("LMI"), effective as of May 1,
1999, Powers granted LMI certain rights to operate and manage the Arena, and LMI
assumed certain responsibilities from Powers for the operation and management of
the Arena. The Club and ▇▇▇▇▇▇▇ acknowledge that Powers, an affiliate of the
Club, and LMI jointly manage the daily operations of the Arena pursuant to the
terms of the Operating Agreement and Management Agreement. The Club hereby
agrees that, simultaneous with the execution of this Agreement, the Club and
Powers will execute that certain Agreement, the form of which is attached hereto
as Exhibit I, pursuant to which Powers will assume certain responsibilities with
respect to this Naming Rights Agreement and pursuant to which Powers will cause
LMI to assume certain responsibilities with respect to this Naming Rights
Agreement (the "Powers Agreement").
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SECTION 6. EXISTING SIGNAGE; PROMOTIONAL MATERIALS.
6.1 EXISTING ARENA SIGNAGE. Subject to Section 2.5, as soon as
practicable after the Commencement Date, the Club shall, at its sole cost and
expense, cause Powers and/or LMI to remove any and all existing signage,
advertisements, or identifications at the Arena, which reference the name of the
Arena as the "Nashville Arena", and to replace same with comparable signage,
advertisements, or identifications referencing the ▇▇▇▇▇▇▇ Entertainment Center.
6.2 COLLATERAL MATERIALS. The Club shall cause Powers and/or LMI to
cause all tickets produced for, or on behalf of, the Arena to bear prominently
the name and logo of the ▇▇▇▇▇▇▇ Entertainment Center. Furthermore, the Club
shall cause Powers and/or LMI to cause all promotional or collateral materials
for the Arena to bear prominently the name and logo of the ▇▇▇▇▇▇▇ Entertainment
Center, if such promotional or collateral materials reference the name of the
facility.
6.3 TENANTS AND LICENSEES OF THE ARENA. The Club shall cause Powers
and/or LMI to (i) require all tenants and licensees of the Arena, including, but
not limited to, food and beverage concessionaires, to use only materials,
containers, or documents which refer to the name of the facility as the "▇▇▇▇▇▇▇
Entertainment Center", and (ii) take all actions necessary to reasonably assure
that any references to the name of the Arena, and any informational materials
provided, distributed, or utilized by Powers, LMI, or tenants or licensees of
the Arena, refer to the name of the Arena as the "▇▇▇▇▇▇▇ Entertainment Center".
The Club acknowledges and agrees that, at a minimum, the name and logo of the
▇▇▇▇▇▇▇ Entertainment Center will appear on (i) the uniforms (including coats
and jackets) and identification badges of the personnel of the Arena, including,
but not limited to, the security, operations, and box office personnel, ticket
takers, and concierges, (ii) the beer cups, wine cups, and dinner and beverage
napkins of the Arena, and (iii) any and all laniards distributed or sold in or
around the Arena. ▇▇▇▇▇▇▇ hereby acknowledges that the Club, Powers, LMI, and
tenants and licensees of the Arena shall be entitled to use collateral
materials, containers, cups, napkins, and other concession items which reference
the "Nashville Arena" until the earlier of (i) such time as the existing
inventories for such items are depleted or (ii) December 31, 1999; provided,
however, that at such time as collateral materials, containers, cups, napkins,
or other concession items which reference the "▇▇▇▇▇▇▇ Entertainment Center"
become available, then the Club, Powers, LMI, and the tenants and licensees of
the Arena will blend the use of "Nashville Arena" and "▇▇▇▇▇▇▇ Entertainment
Center" items to insure that both types are distributed at each event in the
Arena.
6.4 PREDATORS' PROMOTIONS OR ADVERTISEMENTS. The Club shall reference
the ▇▇▇▇▇▇▇ Entertainment Center in any television or radio commercials for the
Nashville Predators unless (i) the commercial is for an event or events which
will not be held at the ▇▇▇▇▇▇▇ Entertainment Center or (ii) the parties
mutually agree that the length or content of the commercial make reference to
the ▇▇▇▇▇▇▇ Entertainment Center inappropriate. The Club shall cause all written
promotions or advertisements for the Predators to bear the name and logo of the
▇▇▇▇▇▇▇ Entertainment Center.
6.5 ARENA PROMOTIONS OR ADVERTISEMENTS. The Club shall cause Powers
and/or LMI to (i) reference the ▇▇▇▇▇▇▇ Entertainment Center in any television
or radio commercials produced by the Club, Powers or LMI for Arena events and
(ii) to cause all written promotions or advertisements
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produced by the Club, Powers or LMI for Arena events to bear the name and logo
of the ▇▇▇▇▇▇▇ Entertainment Center.
6.6 EXISTING STREET SIGNS. Within a reasonable time following the
Commencement Date, the Club and ▇▇▇▇▇▇▇ shall use their best efforts to cause
the Metropolitan Government of Nashville and Davidson County ("Metro") and the
State of Tennessee (the "State") to cause all existing directional,
informational and road signs which contain the name "Nashville Arena" or any
variation thereof, located in any public rights-of-way, streets or highways to
be altered to refer to the Arena as the "▇▇▇▇▇▇▇ Entertainment Center". The
parties hereby acknowledge that they will mutually agree upon the allocation
between the parties of any costs associated with or stemming from this Section
6.6.
6.7 TOURISM MATERIALS. Within a reasonable time following the
Commencement Date, the Club and ▇▇▇▇▇▇▇ shall use their best efforts to cause
Metro and the State to cause any and all tourism, informational, or advertising
materials, which are produced by Metro or the State and which reference the
"Nashville Arena" or any variation thereof, to refer to the Arena as the ▇▇▇▇▇▇▇
Entertainment Center. The parties hereby acknowledge that they will mutually
agree upon the allocation between the parties of any costs associated with or
stemming from this Section 6.7.
SECTION 7. OTHER BENEFITS. In addition to the various benefits granted to
▇▇▇▇▇▇▇ in Section 2 and Section 6 above, in consideration for the Naming Rights
Fee established in Section 3 above, ▇▇▇▇▇▇▇ shall be entitled to receive the
following benefits:
7.1 PARKING SPACES. ▇▇▇▇▇▇▇ shall be entitled to six (6) parking spaces
in the Arena garage for all events held in the Arena.
7.2 USE OF THE ARENA. ▇▇▇▇▇▇▇ shall be entitled to use the Arena for
two (2) employee events, two (2) community events, and two (2) commercial events
during each year of the Term (the "▇▇▇▇▇▇▇ Events"). The Club agrees to provide
▇▇▇▇▇▇▇, or to cause Powers and/or LMI to provide ▇▇▇▇▇▇▇, with an annual
allowance (the "Arena Rent Allowance") to be applied against the cumulative
"base rent" charged by the Arena for such ▇▇▇▇▇▇▇ Events during each year of the
Term. The Arena Rent Allowance for the first year of the Term shall be Sixty
Thousand Dollars ($60,000.00), and the Arena Rent Allowance shall be increased
during each successive year of the Term by an amount equal to five percent (5%)
of the then current Arena Rent Allowance. The Club agrees that the base rent
charged to ▇▇▇▇▇▇▇ for such ▇▇▇▇▇▇▇ Events will be equal to or less than the
base rent charged to other commercial licensees or lessees of the Arena for
similar events. ▇▇▇▇▇▇▇ acknowledges that it shall be responsible for any
expenses, including without limitation, any overhead, employee, personnel,
security, food, beverage, or supply expenses associated with such ▇▇▇▇▇▇▇ Events
and any cumulative base rent in excess of the annual Arena Rent Allowance.
Attached hereto as Exhibit J is a memorandum detailing the existing structure
for the calculation of "base rent" for use of the Arena.
7.3 USE OF THE REHEARSAL HALL. ▇▇▇▇▇▇▇ shall be entitled to use the
Rehearsal Hall for the Arena prior to, during, and immediately after twelve (12)
games played by the Nashville Predators in the Arena, such games to be mutually
agreed upon by the parties. The Club acknowledges and agrees that ▇▇▇▇▇▇▇ will
not be charged a usage or rental fee for use of the Rehearsal Hall during such
games; provided, however, that ▇▇▇▇▇▇▇ acknowledges and agrees that it will be
responsible for any expenses, including, without limitation, any overhead,
employee,
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personnel, security, food, beverage, or supply expenses incurred as a result of
such events in the Rehearsal Hall.
SECTION 8. PROPRIETARY SYMBOLS.
8.1 ARENA PROPRIETARY SYMBOLS. ▇▇▇▇▇▇▇ shall have the exclusive
ownership of any and all, right, title, and interest in, including, without
limitation, any copyrights, trademarks, service marks, or other intellectual
property, the name or phrase "▇▇▇▇▇▇▇ Entertainment Center" and the ▇▇▇▇▇▇▇
Entertainment Center logo, and any derivatives, modifications, or alterations
thereof (the "Intellectual Property"). ▇▇▇▇▇▇▇ acknowledges and agrees that it
shall be solely responsible for any costs associated with registering or
protecting the Intellectual Property.
8.2 LICENSE OF INTELLECTUAL PROPERTY TO CLUB. Subject to the terms of
this Agreement, ▇▇▇▇▇▇▇ hereby grants to the Club a non-exclusive, royalty free
license during the Term to use and to grant to others, including, but not
limited to, Powers, LMI, the Authority, the Metropolitan Government of Nashville
and Davidson County, and tenants and licensees of the ▇▇▇▇▇▇▇ Entertainment
Center, the right to use the Intellectual Property in connection with the
advertising, promotion, marketing and operations of the ▇▇▇▇▇▇▇ Entertainment
Center and events held in the ▇▇▇▇▇▇▇ Entertainment Center; provided, however,
that any rights granted by the Club to third parties to use the Intellectual
Property shall expire contemporaneously with this Agreement. The Club may,
subject to the prior approval of ▇▇▇▇▇▇▇, from time to time, grant non-exclusive
rights to providers of goods and services and advertisers to use the
Intellectual Property. Nothing herein shall prevent ▇▇▇▇▇▇▇ from using the
Intellectual Property for purposes of promoting itself and the ▇▇▇▇▇▇▇
Entertainment Center; provided that such uses are consistent with the provisions
of this Agreement.
8.3 MARKS. Neither party shall use the names, trademarks, service
marks, copyrights, call letters, trade names, or photographs of the facilities
or products of the other party for any purpose, except as provided for in this
Agreement, without the express prior written consent of the subject party, such
consent to be required for each proposed use and each use to be accompanied by
the appropriate trademark, service ▇▇▇▇, copyright, or other designation
required by the owner of such property. All such uses must terminate immediately
upon termination or expiration of this Agreement. Notwithstanding the above, the
parties acknowledge and agree that each party shall have the unlimited right to
photograph (including, but not limited to, motion picture, still or video device
photography) the ▇▇▇▇▇▇▇ Entertainment Center and to exhibit and exploit such
photography in any medium presently existing or hereafter developed.
8.4 INFRINGEMENT. ▇▇▇▇▇▇▇ represents that it is the sole owner of the
Intellectual Property free and clear of any liens, claims and encumbrances and
that the Intellectual Property does not infringe on any marks, logos,
copyrights, trademarks or other intangible property of any third party. Subject
to Section 13 below, ▇▇▇▇▇▇▇ agrees to indemnify and hold the Club, Powers, LMI
and their respective sublicensees harmless from all loss, cost and expense,
including attorneys fees, arising out of any claim by a third party that the
Intellectual Property infringes on any property right of such third party.
SECTION 9. REPRESENTATIONS AND WARRANTIES OF CLUB. The Club represents
and warrants to ▇▇▇▇▇▇▇ as follows:
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9.1 DUE ORGANIZATION AND GOOD STANDING. The Club is a duly organized
and validly existing limited partnership under the laws of the State of
Wisconsin, is in good standing under the laws of the States of Wisconsin and
Tennessee, and has all requisite power and authority, and no consent of a third
party is necessary, to execute, deliver and perform its obligations under this
Agreement.
9.2 BINDING EFFECT. This Agreement has been duly authorized, executed
and delivered by the Club and constitutes the legal, valid and binding
obligation of it, enforceable against it, in accordance with the terms hereof,
except to the extent enforceability is limited by bankruptcy, reorganization and
other similar laws affecting the rights of creditors generally and by general
principles of equity.
9.3 NO CONFLICT. The execution, delivery and performance of this
Agreement by the Club does not conflict with, nor will it result in, a breach or
violation of any material agreement to which it is a party.
SECTION 10. GAYLORD'S REPRESENTATIONS AND WARRANTIES. ▇▇▇▇▇▇▇ represents
and warrants to the Club as follows:
10.1 DUE ORGANIZATION AND GOOD STANDING. ▇▇▇▇▇▇▇ is a duly organized
and validly existing corporation under the laws of the State of Delaware, is in
good standing under the laws of the State of Delaware, and has all requisite
legal power and authority to execute, deliver and perform its obligations under
this Agreement.
10.2 BINDING EFFECT. This Agreement has been duly authorized, executed
and delivered by ▇▇▇▇▇▇▇ and constitutes the legal, valid and binding obligation
of it, enforceable against it, in accordance with the terms hereof, except to
the extent enforceability is limited by bankruptcy, reorganization and other
similar laws affecting the rights of creditors generally and by general
principles of equity.
10.3 NO CONFLICT. The execution, delivery and performance of this
Agreement by ▇▇▇▇▇▇▇ does not conflict with, nor will it result in, a breach or
violation of any material agreement to which it is a party.
SECTION 11. EXIGENCIES
11.1 FORCE MAJEURE. In the event compliance with any of the parties'
obligations under this Agreement is impractical or impossible due to any
emergency, including, but not limited to, player strikes, management lockouts,
labor disputes, embargoes, flood, earthquake, storm, lightning, fire, epidemic,
acts of God, war, national emergency, civil disturbance or disobedience, riot,
sabotage or terrorism, restraint by court order or public authority, failure of
machinery or equipment or any other occurrence beyond the parties' reasonable
control (each such occurrence being an "Event of Force Majeure"), then the time
for performance of such obligations shall be extended for a period equal to the
duration of the Event of Force Majeure.
11.2 DAMAGE OR DESTRUCTION. The parties acknowledge that in the event
the Arena or any part thereof shall be damaged or destroyed by fire or other
casualty (the "Damaged Facilities"), the Authority has the sole obligation and
authority, pursuant to Section 23 of the Use Agreement, to determine whether to
repair and restore the Damaged Facilities. In the event that the Authority
elects
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not to repair and restore the Damaged Facilities, then this Agreement will
terminate simultaneously with the delivery of notice of such election by the
Authority; and the Club will refund any unearned portion of the Naming Rights
Fee.
11.3 EMINENT DOMAIN. If the Arena or substantially all of the Arena
shall be permanently taken or condemned by any competent authority for any
public use or quasi-public use or purpose, this Agreement shall terminate upon
the earlier of (i) the date when the possession of the part so taken shall be
required for such use or purpose or (ii) the effective date of the taking. If
less than all or substantially all of the Arena shall be taken or condemned by
any competent authority for any public or quasi-public use or purpose, then, in
accordance with Section 24.2 of the Use Agreement, the Authority and the Club
shall mutually determine whether the remaining portion of the Arena can
economically and feasibly be used by the Club. In the event that the Authority
and Club determine that the Arena cannot economically and feasibly be used by
the Club as the result of such partial taking, then this Agreement shall
terminate upon the date of such determination; and the Club shall refund any
unearned portion of the Naming Rights Fee. If any right of temporary possession
or occupancy of all or any portion of the Arena shall be taken, then the Club
shall determine whether such taking materially interferes with the Arena so that
the Arena is no longer suitable for the Club's use as provided in Section 24.4
of the Use Agreement. In the event that the Club determines that such temporary
taking materially interferes with its use of the Arena, then this Agreement
shall terminate upon the date of such determination.
SECTION 12. TERMINATION
12.1 ▇▇▇▇▇▇▇ DEFAULTS. The occurrence of any one or more of the
following matters constitutes a default by ▇▇▇▇▇▇▇ (a "▇▇▇▇▇▇▇ Default"):
(a) Gaylord's failure to pay any of the Naming Rights Fee or
any other amounts due to the Club hereunder within thirty (30) days after
receipt by ▇▇▇▇▇▇▇ of written notice thereof from the Club.
(b) Gaylord's material breach of any of the covenants,
agreements, representations or warranties contained in this Agreement, if such
breach has not been waived in writing, if such breach is not cured or remedied
by ▇▇▇▇▇▇▇ to the Club's reasonable satisfaction within thirty (30) days after
delivery of written notice specifying the nature of the breach, or, if the
parties agree that the breach is not capable of being cured or remedied within
said thirty (30) days, then within the time period mutually agreed to by the
parties in a jointly approved plan of corrective action developed within thirty
(30) days after delivery of written notice to ▇▇▇▇▇▇▇ specifying the nature of
the breach.
12.2 RIGHTS AND REMEDIES OF THE CLUB. Upon the occurrence of any
▇▇▇▇▇▇▇ Default, the Club may, at its option, upon written notice to ▇▇▇▇▇▇▇:
(a) Terminate this Agreement and recover all damages that the
Club may suffer by reason of Gaylord's breach of this Agreement and such early
termination;
(b) Enforce the provisions of this Agreement and enforce and
protect the rights of the Club hereunder by a suit or suits in equity or at law
for the specific performance of any covenant or agreement contained herein;
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(c) Obtain any other available legal or equitable remedy or
relief, including, but not limited to, injunctive relief; and/or
(d) Without terminating this Agreement, recover from ▇▇▇▇▇▇▇
all actual, consequential, and incidental damages that the Club suffers as a
result of any ▇▇▇▇▇▇▇ Default.
12.3 CLUB DEFAULTS. The occurrence of the following constitutes
a default by the Club (a "Club Default"):
(a) The Club's material breach of any of the covenants,
agreements, representations or warranties contained in this Agreement, if such
breach has not been waived in writing, if such breach is not cured or remedied
by the Club to Gaylord's reasonable satisfaction within thirty (30) days after
delivery of written notice specifying the nature of the breach, or, if the
parties agree that the breach is not capable of being cured or remedied within
said thirty (30) days, then within the time period mutually agreed to by the
parties in a jointly approved plan of corrective action developed within thirty
(30) days after delivery of written notice to the Club specifying the nature of
the breach; or
(b) A Team Default, as defined in the Use Agreement, shall
have occurred under the Use Agreement because the Club has breached Section 8.1
of the Use Agreement by failing to play its regular season home games, playoff
home games, and championship home games in the Arena in accordance with the
terms, conditions, and limitations of the Use Agreement.
12.4 RIGHTS AND REMEDIES OF ▇▇▇▇▇▇▇. Upon the occurrence of any Club
Default, ▇▇▇▇▇▇▇ may, at its option, upon written notice to the Club:
(a) Terminate this Agreement and recover all damages that
▇▇▇▇▇▇▇ may suffer by reason of Club's breach of this Agreement and such early
termination;
(b) Enforce the provisions of this Agreement and enforce and
protect the rights of ▇▇▇▇▇▇▇ hereunder by a suit or suits in equity or at law
for the specific performance of any covenant or agreement contained herein;
(c) Suspend payment of the Naming Rights Fee payable pursuant
to Section 3 until such time as such Club Default no longer exists, provided
that such Club Default has not been cured or remedied by the Club to Gaylord's
reasonable satisfaction within thirty (30) days after delivery of the written
notice referenced in this Section 12.4 (such thirty (30) day period to be in
addition to the thirty (30) day period referenced in Section 12.3(a)), or, if
the parties agree that the breach is not capable of being cured or remedied
within said thirty (30) days, then within the time period mutually agreed to by
the parties in a jointly approved plan of corrective action developed within
thirty (30) days after delivery of the written notice to the Club specified in
this Section 12.4;
(d) Offset any damages that ▇▇▇▇▇▇▇ may suffer by reason of
the Club's breach of this Agreement against any future payments of the Naming
Rights Fee;
(e) Obtain any other available legal or equitable remedy or
relief, including, but not limited to, injunctive relief; and/or
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(F) Without terminating this Agreement, recover from the Club
all actual, consequential, and incident damages that ▇▇▇▇▇▇▇ suffers as a result
of any Club Default.
12.5 TERMINATION. This Agreement may be terminated at any time after
the Execution Date (a) by mutual consent of the Club and ▇▇▇▇▇▇▇, or (b) in
accordance with the terms and conditions of Sections 12.2 and 12.4 of this
Agreement. This Agreement will automatically terminate without the need for
notice upon the termination of the Use Agreement for any reason whatsoever.
12.6 APPORTIONMENT OF FEES. Upon termination of this Agreement, the
Naming Rights Fee for the year in which such termination occurs shall be
apportioned as of the date of termination.
12.7 NO CONTINUED USE OF ARENA NAME. Upon termination of this
Agreement, the Club shall be free to rename the Arena, shall no longer refer to
the Arena as the "▇▇▇▇▇▇▇ Entertainment Center" in its Powers' or LMI's
advertising or promotional materials or any other communications by or on behalf
of the Club or the Arena, and shall make reasonable efforts to notify parties
contracting with the Club or the Arena not to use "▇▇▇▇▇▇▇ Entertainment Center"
after the termination of this Agreement; provided, however, that the Club shall
have a maximum of ninety (90) days after the termination of this Agreement to
remove any references to, or displays of, the Arena Intellectual Property on the
signs or advertisements provided for in Sections 2.2 and 2.3 above, or any other
displays within the control of the Club, Powers, or LMI, the costs and expenses
of which shall be borne by the Club unless said termination results from a
▇▇▇▇▇▇▇ Default in which case such costs and expenses shall be borne by ▇▇▇▇▇▇▇.
Upon termination of this Agreement, ▇▇▇▇▇▇▇ shall no longer refer to the
"▇▇▇▇▇▇▇ Entertainment Center" in its advertising and promotional materials or
any other communications by or on behalf of ▇▇▇▇▇▇▇.
12.8 METRO AND AUTHORITY. ▇▇▇▇▇▇▇ acknowledges that the Metropolitan
Government and the Authority, and their respective officers, directors,
partners, members, officials, shareholders, employees, and agents shall not be
liable or responsible for any default under or breach of this Agreement by the
Club.
SECTION 13. INDEMNIFICATION.
13.1 OBLIGATION OF THE CLUB TO INDEMNIFY. Subject to the opportunity to
contest in Section 13.5 hereof, the Club hereby agrees to indemnify, defend, and
hold harmless ▇▇▇▇▇▇▇, its affiliates, and their controlling persons, directors,
officers, employees, representatives, agents, partners, joint ventures, and
assigns from and against any Losses (as defined in Section 13.3) relating to,
based upon, or arising out of (i) any falsity or breach of any representation or
warranty or breach of any covenant or agreement made or to be performed by the
Club pursuant to this Agreement or (ii) any wrongful or negligent act or
omission of the Club or Powers occurring as a result of the Club's performance
of its obligations hereunder, Powers' performance of its obligations under the
Powers Agreement, the operation of the Nashville Predators or the Club's other
businesses, or the operation of the Arena.
13.2 OBLIGATION OF ▇▇▇▇▇▇▇ TO INDEMNIFY. Subject to the opportunity to
contest in Section 13.5 hereof, ▇▇▇▇▇▇▇ hereby agrees to indemnify, defend, and
hold the Club and Powers, and their affiliates, and their controlling persons,
directors, officers, employees, representatives, agents, partners, joint
ventures, and assigns harmless from and against any Losses relating to, based
upon, or arising out of (i) any falsity or breach of any representation or
warranty or breach of any covenant or
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agreement made or to be performed by ▇▇▇▇▇▇▇ pursuant to this Agreement or (ii)
any wrongful or negligent act or omission of ▇▇▇▇▇▇▇ occurring as a result of
Gaylord's performance of its obligations hereunder, or the operation of
Gaylord's various businesses.
13.3 DEFINITION OF "LOSSES." As used in this Agreement, the term "Loss"
or "Losses" means any and all claims, actions, suits, proceedings, demands,
assessments, judgments, losses, remedial action requirements, costs,
deficiencies, damages, fines, penalties, liabilities, or expenses (including,
but not limited to, reasonable attorneys' fees), after giving effect to
offsetting recoveries or related proceeds actually received from insurance
policies or similar arrangements or from third parties. The fact that
indemnification is being sought shall not, in and of itself, preclude any party
from contesting the liability pursuant to Section 13.5 hereof.
13.4 NOTICE OF LOSS OR ASSERTED LIABILITY. Promptly, but not more than
ninety (90) days (or such lesser time as is reasonably necessary to allow the
indemnifying party to answer any asserted claim), after (a) becoming aware of
circumstances that have resulted in a Loss for which the party seeking
indemnification (the "Indemnitee") intends to seek indemnification under this
Section 13, or (b) receipt by the Indemnitee of written notice from any third
party of any demand, claim, or circumstance which gives rise or, with the lapse
of time, the giving of notice or both, would give rise to a claim or the
commencement of (or threatened commencement) of any action, proceeding, or
investigation (an "Asserted Liability") that may result in a Loss, the
Indemnitee shall give written notice thereof (the "Claims Notice") to the party
(or parties) obligated to provide indemnification pursuant to this Section 13
(the "Indemnifying Party"). The Claims Notice shall describe the Loss or the
Asserted Liability in reasonable detail. The Claims Notice may be amended by
written notice on one or more occasions with respect to the amount of the
Asserted Liability or the Loss at any time prior to final resolution of the
obligation to indemnify relating to the Asserted Liability or the Loss.
13.5 OPPORTUNITY TO CONTEST. Subject to the provisions of this
Agreement, the Indemnifying Party may elect to compromise or contest, at its own
expense and by its own counsel, any Asserted Liability. If the Indemnifying
Party elects to compromise or contest such Asserted Liability, it shall within
thirty (30) days (or sooner, if the nature of the Asserted Liability so
requires) (the "Notice Period") notify the Indemnitee of its intent to do so by
sending a written Contest Notice to the Indemnitee (the "Contest Notice"), and
the Indemnitee or Indemnitees shall cooperate, at the expense of the
Indemnifying Party, in the compromise or contest of such Asserted Liability;
provided, however, that the Indemnitee shall have the right to approve, to its
reasonable satisfaction, any counsel retained in connection with such Asserted
Liability. If, within the Notice Period, the Indemnifying Party elects not to
compromise or contest the Asserted Liability, fails to notify the Indemnitee of
its election as herein provided, or contests its obligation to indemnify under
this Agreement, the Indemnitee (upon further written notice to the Indemnifying
Party) shall have the right to pay, compromise, or contest such Asserted
Liability on behalf of and for the account and risk of the Indemnifying Party,
and the Indemnifying Party shall have no further right to assume the compromise
or contest of such Asserted Liability but shall retain the right to contest its
obligation, or the extent of its obligation, to indemnify or its responsibility
for any alleged or claimed Loss. Anything in this Section 13.5 to the contrary
notwithstanding, (i) the Indemnitee shall have the right, at its own cost and
expense and for its own account without claim for reimbursement, to compromise
or contest any Asserted Liability, and (ii) the Indemnifying Party shall not,
without the Indemnitee's written consent, which consent will not be unreasonably
withheld or delayed, settle or compromise any Asserted Liability or consent to
the entry of any judgment which does not include an unconditional release of
Indemnitee from all liability in respect of such Asserted Liability. In any
event, any Indemnitee may participate, at its own expense, in the contest of
such Asserted Liability.
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13.6 ATTORNEYS' FEES. In the event of a dispute, the prevailing party
shall be entitled to recover its reasonable attorneys' fees, expenses, and
costs. Nothing contained herein shall be construed to alter the inclusion of
attorneys' fees, expenses, and costs in otherwise indemnifiable Losses, as
provided herein.
13.7 EXCLUSIVE REMEDY AND LIMIT OF LIABILITY. Except for equitable
remedies, the rights and remedies of the parties set forth in this Section 13
shall be the exclusive rights or remedies available with respect to matters for
which indemnification is provided or authorized pursuant to this Agreement.
13.8 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants and agreements of the parties contained in this Agreement
shall continue throughout the Term, unless otherwise stated herein.
SECTION 14. INSURANCE. Throughout the Term, each party shall maintain, and the
Club shall cause Powers to maintain, in full force and effect, liability
insurance, written on an occurrence basis, with a combined single limit of at
least Ten Million Dollars ($10,000,000.00), which insurance shall (i) contain a
broad form contractual liability endorsement and a broad form property damage
endorsement, (ii) name the other party as an additional insured (Powers' policy
shall name ▇▇▇▇▇▇▇), (iii) provide that it may not be canceled, terminated,
reduced, materially changed, or allowed to expire without renewal unless at
least thirty (30) days advance notice has been given to the other party (Powers'
policy will give notice to ▇▇▇▇▇▇▇), (iv) be in form and with an insurer
satisfactory to the other party, and (v) if available, upon commercially
reasonable terms, contain a waiver of the insurer's rights of subrogation. Such
liability insurance shall be primary to the other party's insurance and shall
not call into contribution any insurance maintained by the other party. The
limits of such insurance shall not limit the liability of the parties. Prior to
the Commencement Date and thereafter upon written request, each party shall
furnish the other with a current certificate of insurance or, upon written
request, a certified duplicate policy evidencing the existence of the insurance
required under this Section 14.
SECTION 15. NOTICES
15.1 REQUIRED NOTICES. All notices, demands and other communications
between the parties required hereunder shall be in writing and deemed given upon
personal delivery, confirmed facsimile transmission ("fax"), or if sent by
certified mail, postage prepaid with a return receipt requested, to the
respective addresses and fax numbers as set forth below. Either party may
specify another address or fax number, from the one set forth below, by notice
to the other as provided herein.
If to the Club: Nashville Hockey Club Limited Partnership
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇ or Current President
If to Gaylord: ▇▇▇▇▇▇▇ Entertainment Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
or Current Chief Operating Officer
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SECTION 16. MISCELLANEOUS
16.1 EXPENSES. All expenses of the preparation of this Agreement and of
the transactions provided for hereby shall be borne by the respective parties
incurring such expense, whether or not such transactions are consummated.
16.2 CHOICE OF LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Tennessee, without regard to the
conflicts of laws principles thereof, and the venue for any dispute arising
hereunder shall be in Davidson County, Tennessee. Furthermore, the parties agree
that the prevailing party in any such proceeding shall be entitled to recover
from the non-prevailing party its reasonable attorneys' fees, expenses and other
costs incurred in connection with any such proceeding, amounts incurred in
preparation for any such proceeding, and amounts incurred in connection with
enforcing any decision or judgment rendered in connection therewith.
16.3 WAIVER OF JURY TRIAL. With respect to any civil action, counter
claim, cross-claim, third party claim, or proceeding, whether in law or equity,
which arises out of, concerns or relates to this Agreement, any transactions
contemplated hereunder, the performance hereof, or the relationship created
hereby, whether sounding in contract, tort, strict liability or otherwise, trial
shall be to a court of competent jurisdiction and not to a jury. Each party
hereby knowingly, voluntarily, intentionally and irrevocably waives any right
(statutory, constitutional, common law or otherwise) it may have to a trial by
jury. Any party may file an original counterpart or a copy of this Agreement
with any court as written evidence of the waiver of the other party's right to
trial by jury, no party has made or relied upon any oral representation by any
other party regarding the enforceability of this provision. Each party has read
and understands the effect of this jury waiver provision.
16.4 CONFIDENTIALITY. Each party agrees to treat as confidential all
information regarding the other party furnished, or to be furnished, pursuant to
this Agreement, or as a part of this naming rights transaction (collectively,
the "Information"), in accordance with the provisions of this paragraph, and to
take, or abstain from taking, other actions set forth herein. The Information
will be used solely for the purpose of fulfilling each party's obligations
hereunder, and will be kept confidential by the receiving party and its
officers, directors, members, employees, representatives, agents, and advisors;
provided that (a) any of such Information may be disclosed to officers,
directors, members, employees, representatives, agents, and advisors who need to
know such Information for the purpose of fulfilling each party's obligations
hereunder, (b) the receiving party may disclose any Information to which the
disclosing party previously and expressly consents in writing, (c) ▇▇▇▇▇▇▇ may
disclose that portion of the Information that is required to satisfy its
obligations under federal and state securities laws and regulations, and (d)
Information may be disclosed if otherwise required by law. Upon termination or
expiration of this Agreement, each party will return to the other party all
materials containing or reflecting the Information and will not retain any
copies, extracts, or other reproductions thereof. The parties hereto also agree
to hold the terms and conditions hereof in strict confidence and not to make any
disclosure with respect thereto, publicly or privately, other than as jointly
agreed to by the parties.
16.5 RESERVATION OF RIGHTS. Any and all rights not expressly
granted herein are reserved to the Club.
16.6 DEFAULT RATE OF INTEREST. All amounts owed by either party under
this Agreement shall bear interest from the date due until paid at the lesser of
the maximum rate permitted under
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Tennessee law or the Wall Street Journal Prime Rate, plus two percent, as the
same changes from time to time.
16.7 TIME OF THE ESSENCE. Time is of the essence as to this
Agreement and all provisions hereof.
16.8 ACCORD AND SATISFACTION. Neither the acceptance by either party of
a lesser amount than any amount herein required to be paid, nor any endorsement
or statement on a check or an instrument accompanying payment shall be deemed an
accord and satisfaction, and either party may accept such check or payment
without prejudicing such party's right to recover all outstanding amounts due
under this Agreement and pursue all remedies available hereunder or at law or in
equity.
16.9 ADDITIONAL ASSURANCES. From time to time after the date of this
Agreement, without further consideration and subject to the other terms of this
Agreement, the parties shall promptly execute and deliver such other instruments
and take such other actions as the other party reasonably may request to
consummate or perform the transactions and agreements contemplated hereby.
16.10 REMEDIES CUMULATIVE. All rights and remedies of the parties shall
be cumulative, and, except as specifically contemplated otherwise by this
Agreement, none shall exclude any other right or remedy allowed at law or in
equity and said rights or remedies may be exercised and enforced concurrently.
16.11 INTERPRETATION. If any issue arises to the meaning or
construction of any word, phrase or provision hereof, then no party shall be
entitled to the benefit of the principles of the construction and interpretation
of contracts or written instruments that provide that any ambiguity is to be
construed in favor of the party who did not draft the disputed word, phrase or
provision.
16.12 EXHIBITS. All Exhibits and documents referred to herein or
attached to this Agreement are integral parts of this Agreement as if fully set
forth herein and all statements appearing therein shall be deemed to be
representations.
16.13 WAIVER. No waiver by ▇▇▇▇▇▇▇ or the Club of any covenant or
condition of this Agreement shall constitute a waiver by the waiving party of
any subsequent breach of such covenant or condition or authorize the breach or
non-observance on any other occasion of the same or any other covenant or
condition of this Agreement.
16.14 BINDING EFFECT AND ASSIGNABILITY OF RIGHTS. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. Notwithstanding the prior sentence, no party
may assign any of its rights or obligations hereunder without the prior written
consent of the other party, except that no party may withhold its consent to an
assignment of this Agreement in the event of a merger or reorganization of a
party, a sale of all or substantially all of the assets of a party or a
consolidation of a party with any of its affiliates (as such term is defined in
Section 2.4 above) or related parties. Notwithstanding the foregoing, the Club
shall have the right to transfer, assign, convey, pledge or encumber, in whole
or in part, any and all of its rights under this Agreement as security in
connection with a loan transaction.
16.15 ENTIRE AGREEMENT. This Agreement is an integrated contract which
contains all agreements of the parties with respect to the subject hereof. No
other prior or contemporaneous agreement or understanding pertaining to this
subject shall be effective. This Agreement may be
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modified in writing only, signed by the parties hereto. There are no oral or
written statements, representations, agreements or understandings which modify,
amend or vary any of the terms of this Agreement. Unless the context requires
otherwise, references such as or similar to "hereof" refer to this Agreement and
the Exhibits hereto as a whole and not merely to the paragraph, section or other
subdivision in which such words appear. The singular shall include the plural
and the masculine gender shall include the feminine and the neuter, unless the
context otherwise requires. The captions and headings throughout this Agreement
are for convenience and reference only, and they shall not be deemed to define,
modify or add to the meaning, scope or intent of any provision of this
Agreement. In the event that any one or more of the phrases, sentences, clauses
or paragraphs contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if it did not contain such phrase, clause or
paragraph.
16.16 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same and shall be
effective when one or more counterparts have been signed by each party and
delivered to the other parties.
(Remainder of Page Intentionally Left Blank)
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IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first written above.
CLUB:
NASHVILLE HOCKEY CLUB LIMITED PARTNERSHIP
By: NASHVILLE PREDATORS, LLC
ITS GENERAL PARTNER
By:__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇ ENTERTAINMENT COMPANY
By:________________________________________
▇▇▇▇▇ ▇. London, Chief Executive Officer
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