ALCOHOLIC BEVERAGE CONCESSION AND OPERATING AGREEMENT
This Agreement dated and effective as of September 19, 1996 (the
"Effective Date"), is between 97, Inc., a Texas corporation (the "Permittee"),
and Sam Houston Race Park, Ltd., a Texas limited partnership (the "Manager").
Manager is the owner of a racetrack facility that conducts thoroughbred
racing, quarter horse racing, simulcasting and other activities in Houston,
Texas, known as the Sam Houston Race Park (the "Racetrack"), located at 7575
N. Sam Houston Parkway West, Houston, Texas 77064.
Manager and Permittee desire to enter into this Agreement to grant
Permittee the exclusive right to sell and dispense alcoholic beverages at the
Racetrack.
THEREFORE, for valuable consideration the receipt and sufficiency of
which are hereby acknowledged, Manager and Permittee hereby agree as follows:
AGREEMENTS:
1. Grant of Concession. Manager hereby grants to Permittee (i) the
right to provide alcoholic beverage services at the Racetrack, including the
right to serve beer, wine and mixed alcoholic beverages in all of the
restaurants, concession stands, bars and other locations where alcoholic
beverages will be served at the Racetrack (collectively the "Service
Locations"), and (ii) the right to serve beer, wine and mixed alcoholic
beverages at banquets, receptions and other events at the Racetrack. All of
Permittee's rights as provided above and the exercise of those rights by
Permittee are referred to as the "Beverage Business."
2. Term. The term of this Agreement ("Term") shall commence upon the
Effective Date and continue for a term ending on the date one year thereafter
and thereafter shall be automatically renewed for successive periods of one
year unless terminated by either party by providing written notice of
termination to the other at least 30 days prior to the applicable renewal date.
3. Consideration.
(a) In consideration of Manager granting to Permittee the
exclusive concession to conduct the Beverage Business at the Racetrack, the
Permittee agrees to pay to Manager an amount equal to 15% of the Beverage
Receipts (defined below) generated by the Beverage Business (the "Beverage
Receipts Fee"). "Beverage Receipts" for any period shall mean all revenues,
receipts and income of every kind, during the applicable period, from the
Beverage Business, as finally determined on an accrual basis in accordance
with generally accepted accounting principles consistently applied, including
but not limited to the sales price to the customer of all beer, wine, and mixed
alcoholic beverages.
(b) In consideration of Manager providing to Permittee the
employees, services, equipment, and supplies described in sections 5 and 6
below, the Permittee agrees to pay to Manager an amount equal to the sum of
the expenses incurred by Manager in providing Permittee with those employees,
services, equipment and supplies, provided, however, in no event shall the
sum of those expenses exceed the Beverage Receipts for any applicable period.
The amounts reimbursable to Manager, as provided above, are the "Expense
Reimbursement."
(c) Manager and Permittee have agreed upon the amount of the
Beverage Receipt Fee and Expense Reimbursement, after considering, among
other factors, the unique exclusive marketing opportunity afforded to
Permittee to sell alcoholic beverages at the Racetrack to customers attracted
by the restaurant and bar facilities at the Racetrack and the sales promotion
activities relating thereto, the limited capital needed by the Permittee to
commence and operate the business of selling alcoholic beverages at the
Racetrack and the revenues and other benefits to be derived by the Permittee
from the sale of alcoholic beverages at the Racetrack.
4. Calculation and Payment of Revenues and Expenses.
(a) On or before the 15th day of each calendar month, the sum of
the Beverage Receipts which are attributable solely to the Beverage Business for
the previous calendar month shall be calculated, in accordance with generally
accepted accounting principles, as follows:
(i) each receipt provided to a customer of the Racetrack
shall contain an itemization of those charges which are allocable solely to
alcoholic beverages and those charges allocable solely to food and
non-alcoholic beverages; and
(ii) a permanent written or computer record shall be made of
each such receipt and the itemization of charges thereon.
Absent manifest error the calculation of the total Beverage Receipts which are
attributable solely to the Beverage Business conducted by Permittee at the
Racetrack, which is determined by Manager according to the receipts generated at
the point of sale and recorded either in writing or by computer shall be
controlling in all respects and shall be the sum which is utilized to
calculate the Beverage Receipts Fee. At all times, but not more than once
in any 12-month period, Permittee shall have the right to audit the
books and records of Manager in order to determine whether the calculation of
the Beverage Receipts attributable to the Beverage Business is accurate in all
material respects.
(b) The Beverage Receipts Fee shall be payable monthly in arrears,
with the first payment being due and payable on the 15th day of the month after
the first month in which there are Beverage Receipts and the 15th day each and
every succeeding month thereafter during the Term. The amount of the Beverage
Receipts Fee may be adjusted from time to time during the Term as Permittee and
Manager may mutually agree in writing. Permittee and Manager agree that the
TABC will be notified of any such adjustment.
(c) On a monthly basis, Manager shall provide to Permittee an
invoice setting forth the amount of the Expense Reimbursement together with a
detailed listing of the types and items of expenses to be paid by Permittee
under this Agreement. Permittee shall pay to Manager the full amount of such
invoices within 30 days after receipt thereof.
(d) Any portion of the Beverage Receipts Fee, the Expense
Reimbursement or any other sums due and payable by Permittee hereunder which
remain unpaid on the date which is 30 days after such sums are due and payable
shall bear interest at a rate equal to the lesser of 15% or the highest rate
permitted by applicable law.
(e) Any sale of alcoholic beverages and mixes may be paid in cash
or by check, credit card, charge account, exchange or otherwise. Each charge
or sale upon credit shall be treated as a sale for the full price in the month
during which the charge or sale is made, irrespective of the time payment is
received, in full or in part, less customary established credit card
commissions and a reasonable deduction for bad debts as established from time
to time by Manager.
(f) The Beverage Receipts from the operation of the Beverage
Business shall be deposited by Manager into the general operating account or
accounts of the Racetrack maintained by the Manager. No less frequently than
once every calendar month during the Term, Manager shall issue a check payable
to Permittee, drawn on the operating account into which the Beverage Receipts
from the operation of the Beverage Business have been deposited, in an amount
equal to 100% of the accumulated Beverage Receipts attributable to the
operation of the Beverage Business. The Permittee shall open a separate account
into which such amounts shall be deposited. At the election of Permittee,
Permittee may authorize Manager to electronically transfer the accumulated
Beverage Receipts from the operating account of the Racetrack to the
Permittee's separate account.
(g) The Permittee shall pay the Expense Reimbursement and the
Beverage Receipts Fee to Manager by issuing a check drawn on Permittee's
separate account into which the Beverage Receipts from the operation of the
Beverage Business have been deposited or transferred. Manager shall be
responsible for preparing and forwarding to Permittee a statement setting forth
itemization of the Expense Reimbursement showing the sum of each category of
expenses to be reimbursed by Permittee to Manager. Such statements shall be
forwarded to Permittee no less frequently than monthly and shall pertain to
the calendar month or portion thereof immediately preceding the month in which
such statement is delivered.
5. Operation of Beverage Business.
(a) Manager shall furnish to Permittee all fixtures, equipment,
furnishings, and furniture necessary to operate the Service Locations.
Permittee shall have the non-exclusive right to use all of such fixtures and
equipment which are necessary or convenient to the sale of alcoholic
beverages and mixes at the Racetrack. Permittee and Manager shall agree
jointly on the types and amounts of glassware, paperware and other supplies
which Permittee will require in order to conduct the Beverage Business.
Manager shall have the right to approve the design and quality of those items
for the sole purpose of insuring that such items are consistent with the
operation of a first-class Racetrack.
(b) The Permittee shall control all activities carried out at the
Racetrack relating to the purchase, storage, distribution, possession,
transportation and sale of the alcoholic beverages.
(c) Manager shall provide employees to Permittee as reasonably
requested by Permittee, to prepare and serve all of the alcoholic beverages,
bar supplies, and other items to be served to customers in accordance with
this Agreement, provided that all of such preparations and service shall at all
times be under Permittee's sole supervision and direction. Further,
notwithstanding the fact that such employees will be the employees of
Manager, Permittee shall have the ultimate control, authority with respect to
hiring and terminating those employees, and shall have sole control and
authority with respect to the pricing and selling of alcoholic beverages.
All personnel provided by Manager for use by Permittee in the Beverage
Business shall be of legal age and meet all other laws and regulations
pertaining to individuals who sell and dispense alcoholic beverages in the
State of Texas.
(d) The Permittee shall be solely responsible at its own cost to
acquire and maintain adequate inventories of alcoholic beverages, beer and wine
necessary for the operation of the Beverage Business. The Permittee shall pay
all fees required for the original issuance of the required permits and
licenses from the TABC and any other permits or licenses deemed necessary for
the sale of alcoholic beverage and all fees for any renewal thereof. Manager
acknowledges and agrees that the Permittee shall have the right to determine
the price of all alcoholic beverages sold at the Racetrack, consistent,
however, with the terms and provisions of this Agreement.
6. Maintenance, Management and Accounting Services Provided by Manager.
Manager shall maintain or cause to be maintained the building in which the
Beverage Business is conducted, including the heating and air conditioning
equipment and plumbing and electrical systems of such building, in good
repair and condition, subject to reasonable wear and tear. From time to time
as Manager deems appropriate, after consulting with Permittee, it shall cause
the equipment, furniture and furnishings of the Racetrack to be repaired,
maintained and/or replaced. The Permittee agrees to reimburse Manager for a
portion of the costs of such repair, maintenance and replacement. Such portion
shall be determined taking into account Permittee's use of the premises and
facilities which are repaired or replaced and the wear and tear attributable
to the Permittee's operation of the Beverage Business conducted therein and
thereon. During the Term, Manager shall provide the following accounting,
administrative and operational services to and for the benefit of the
Permittee for the Permittee's Beverage Business:
(a) full payroll services;
(b) general accounting and bookkeeping services;
(c) maintenance and preparation of records and reports required by
the TABC and the Texas Department of Labor and Standards,
if applicable, or any other applicable regulatory agency;
(d) computer services as needed;
(e) other administrative services as might reasonably be required
by Permittee;
(f) cleaning services;
(g) maintenance of equipment;
(h) utilities;
(i) uniforms;
(j) signage;
(k) credit card processing; and
(l) liquor liability insurance
Permittee agrees to make available to Manager the following information:
(1) all invoices, statements, bills, checks, cash register tapes,
receipts and other evidence or indicia of expense for the purpose of tabulating
income from the sale of alcoholic beverages;
(2) all other business records acquired, received, or maintained by
Permittee and which are reasonably requested by Manager; and
(3) all notices, correspondence or communications between Permittee and
the TABC or any other governmental agency having jurisdiction over the business
operations of Permittee.
In addition, Permittee shall pay promptly upon receipt of an invoice
therefor, a fee based upon the costs incurred by Manager for actual breakage,
loss by theft, and replacement of the glassware, paperware and other supplies,
equipment and services required to sell and dispense alcoholic beverages.
7. Insurance. Manager shall arrange for insurance protecting
Permittee's inventory of merchandise and other property on the premises of
the Race Track from loss by fire or other casualty covered by an extended
coverage endorsement to a fire insurance policy, such insurance to be for the
benefit of, and to name as insureds, both Manager and Permittee as their
respective interests may appear. Likewise, Manager shall carry at
Permittee's cost commercial general liability insurance, including liquor
liability insurance, in an amount not less than $10,000,000.00 naming
Permittee and its officers and directors as an additional insured, public
liability and property damage insurance and employers liability and workmen's
compensation insurance for the benefit of both Manager and Permittee, in such
coverages and amounts as Manager deems reasonable.
8. Default and Termination.
(a) Manager shall have the right to terminate this Agreement at
any time by providing 30 days written notice to Permittee. Notwithstanding the
foregoing, the parties may terminate this Agreement at any time by mutual
consent.
(b) This Agreement may also be terminated for cause by the non-
defaulting party hereunder upon 10 days prior written notice to the
defaulting party if the defaulting party fails to cure any such default
during such 10 day period.
(c) This Agreement shall terminate immediately should the
Permittee fail to acquire and maintain the requisite permits from the TABC or
other consents or approvals from any governmental authority which are required
to enable Permittee to continue, without interruption, the Beverage Business.
9. No Partnership Intended. Nothing herein contained shall be deemed
or construed by the Parties hereto, nor by any third party, as creating the
relationship of principal and agent or of partnership or of joint venture
between any of the parties hereto.
10. No Assignment. This Agreement may be assigned by the Manager with
30 days written notice to Permittee.
11. Notices. Any notices shall be deemed given by one party to the
other parties hereto three (3) business days after deposited in the United
States Mail, Postage Prepaid and addressed to the receiving parties provided
below, or such other address as any party may from time to time designate to
the other in writing.
Permittee: 97, Inc.
c/o Sam Houston Race Park, Ltd.
7575 N. Sam Houston Parkway West
Houston, TX 77064
Attn: Nicholas P. Fava
Manager: Sam Houston Race Park, Ltd.
7575 N. Sam Houston Parkway West
Houston, Texas 77064
with copy to: MAXXAM Inc.
5847 San Felipe, Suite 2600
Houston, Texas 77057
Attn: Byron L. Wade
12. Licenses and Permits. By its execution of this Agreement, Permittee
covenants that on or before the date it begins selling alcoholic beverages, it
will have obtained all necessary permits or licenses from the Texas Alcoholic
Beverage Commission (the "TABC") and any other permits or licenses from the
Texas Alcoholic Beverage Commission (the "TABC") and any other applicable
governmental authorities, including, without limitation, a Mixed Beverage
Permit and Late Hours Permit.
13. Prior Agreements Superseded. This Agreement supersedes any other
oral or written agreements between the parties relating to matters covered by
this Agreement.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
15. No Infringement on Manager's Authority. Nothing in this Agreement
is intended to limit or otherwise affect Manager's authority to manage and
operate the Racetrack.
"MANAGER" "PERMITTEE"
Sam Houston Race Park Ltd. 97, Inc.
/S/ ROBERT L. BORK /S/ NICHOLAS P. FAVA
Name: Robert L. Bork Name: Nicholas P. Fava
As Its:Vice President and General As Its: President
Manager