EXHIBIT 10.22
THIS AGREEMENT, dated for reference purposes as of August 24, 1999 (the
"Agreement"), is by and between FOOTBALL NORTHWEST LLC, a Washington limited
liability company ("FNW") and MERCATA, INC., a Delaware Corporation ("Sponsor").
R E C I T A L S
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A. Pursuant to that certain Consent to Assignment and Amendment of Use
Agreement dated January 7, 1997, as amended, between King County, Washington
("King County") and FNW, FNW is granted the exclusive right to and revenue from
all advertising both inside and outside the King County Domed Stadium (the
"Kingdome") and the Kingdome Pavilion, including on adjacent parking lots.
B. The Kingdome is located in Seattle, Washington and currently serves as
the home venue for the National Football League ("NFL") franchise for the
Seattle Seahawks.
C. FNW owns and, during the term of this Agreement, FNW or its successor
or assign will retain the exclusive signage and advertising rights for the
Kingdome.
D. Sponsor desires to acquire from FNW certain sponsorship rights in the
areas described below and FNW is vested with the authority to grant and desires
to grant such rights to Sponsor in accordance with the terms and provisions of
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereby agree as follows:
1. Sponsorship Benefits. Sponsor shall during the term of this Agreement
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receive the following sponsorship benefits:
a. Seahawks Network Television-"Seahawks Saturday"
1. Sponsorship of "The Mercata Minute" showcasing weekly Power Buy
Updates for a total of seventeen (17) shows and seventeen (17)
'Mercata Minutes'.
2. Right of first refusal to sponsor "The Mercata Minute" on some or
all post-season "Seahawks Saturday" shows
3. Talent fees for Xxxx Xxxxx are inclusive within this agreement.
4. Talent fee for Xxxxx Xxxxxxx will be paid directly by sponsor
($700) separate from this agreement.
b. In-Stadium Promotion
1. 60,000 Seahawks/Sponsor window clings that promote Mercata to be
distributed at the October 3, 1999 game at Kingdome, (Seahawks
vs. Oakland Raiders)
2. One (1) DiamondVision announcement promoting tune-in to "Seahawks
Saturday Show" and sponsor involvement with show. Content shall
be subject to Sponsor's review and approval.
c. Print
1.
1. Mid-season Sponsor/Seahawks advertorial featuring "Power Buy"
scoreboard. Location, content and format shall be subject to
Sponsor's review and approval.
d. Xxxxxxxx.xxx
1. Sponsor to retain high profile home page presence with
Xxxxxxxx.xxx, including a text and graphic link directing
visitors to Xxxxxxx.xxx. Text and graphics shall be provided by
Sponsor, and subject to Xxxxxxxx.xxx's review and approval.
2. Seahawks and Sponsor to track click through performance during
1999 regular season to measure visits to Mercata site from
Xxxxxxxx.xxx. Any information voluntarily shared by the parties
in connection with this Paragraph 1(d)(2) shall be subject to the
confidentiality provisions in Paragraph 12.
d. Other Opportunities
1. Seahawks shall make appropriate introductions and otherwise use
best faith efforts to assist Sponsor in working on similar
marketing programs with the NFL and its member franchises
2. Mercata's right to use Seahawks trademarks for promotional
purposes shall extend throughout the 1999 regular season.
2. Term. The term of this Agreement shall commence on August 24, 1999,
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and shall thereafter continue until all above Sponsor benefits are completed,
but in no event beyond the end of the 1999 season (the "Term"). This Agreement
is noncancellable by either party except for termination in accordance with
Paragraph 7, below, and may be mutually extended by written agreement of the
parties.
3. Consideration. In consideration of the sponsorship rights and other
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services and products granted and provided to Sponsor by FNW hereunder, Sponsor
hereby agrees to pay FNW a sponsorship fee in the amount of Sixty eight thousand
Dollars ($67,800) (the "Sponsorship Fee").
3.1 Invoices and Payment. FNW will send Sponsor invoices for the
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Sponsorship Fee in two (2) monthly installments beginning October 1, 1999.
Invoices are payable thirty (30) days after receipt. A five percent (5%) late
fee will be added to all invoices which become past due and interest at a rate
of twelve percent (12%) per annum will be charged on all balances not paid
within thirty (30) days of the date they are due.
4. Sponsor's Content and Design. The content and design of Sponsor's
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creative material shall be within the discretion of Sponsor. However, if FNW
objects to any such material when it is proved or thereafter, it shall notify
Sponsor as soon as possible and Sponsor shall take prompt action to address
FNW's concerns.
5. Trademarks
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5.1 Use of Sponsor's Trademarks. FNW shall not, by this Agreement,
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obtain any night, title or interest in the trademarks or other proprietary
property of Sponsor, nor shall this Agreement give FNW the right to use, refer
to, or incorporate in marketing or other materials the name, logos, trademarks,
designs, identifications, or copyrights of Sponsor in any manner except as
authorized by Sponsor. Sponsor acknowledges that FNW and parties conducting
events within the Kingdome may televise, video tape, or take still photographs
of events occurring in the Kingdome. Sponsor hereby consents to the commercial
exploitation of such television broadcasts, video tapes and still photographs
notwithstanding the fact that the content and design of Sponsor's images may be
visible in such television broadcasts, video tapes and still photographs.
2.
5.2 Use of FNW and Seattle Seahawks Trademarks. Sponsor shall not, by
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this Agreement, obtain any right, title or interest in the trade names or
trademarks of FNW, the Seattle Seahawks, the NFL, NFL Enterprises, L.P., NFL
Properties, Inc. or any affiliate of such, nor shall any such agreements give
Sponsor the right to use, refer to, or incorporate in marketing or other
materials the names, logos, trademarks, designs, identifications or copyrights
of FNW, the Seattle Seahawks, the NFL, NFL Enterprises, L.P., and NFL
Properties, Inc. without the prior written approval of FNW, which approval may
be withheld in FNW's reasonable discretion. Sponsor may use Seahawks trademarks
for promotional purposes as necessary to convey the Sponsor benefits described
herein. However, all such rights shall expire at the end of the 1999 regular
season.
6. Indemnification. FNW agrees to defend, indemnify and hold Sponsor
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harmless from and against all claims, suits, liabilities, costs and expenses,
including reasonable attorney costs and fees, for injury to, including death of,
persons (whether they be third persons or employees of either of the parties
hereto) or any loss of or damage to property in any manner arising from or
relating to the rights conveyed herein, with the understanding that this
obligation shall not apply to, and Sponsor agrees to defend, indemnify and hold
FNW and its officers, directors, employees and agents harmless from and against,
all losses, claims, suits, demands, actions, liabilities, costs and expenses,
including reasonable attorney costs and fees, for injury to, including death of,
persons (whether they be third persons or employees of either of the parties
hereto) or any loss of or damage to property in any manner arising from the
content of any advertising copy supplied by Sponsor or the negligence or
intentional misconduct of Sponsor or its officers, employees or agents.
7. Termination. FNW and Sponsor shall each have the right but not the
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obligation to terminate this Agreement upon forty-five (45) days prior written
notice, without further liability except as otherwise provided by this Paragraph
7 if any of the following shall occur:
(a) Damage to or destruction of the Kingdome to the extent that the
Kingdome is closed for a period of greater than thirty (30) days,
in which case the refund provisions of this Paragraph 7 shall
apply.
(b) The cancellation or termination of FNW's NFL franchise or the
relocation of FNW's NFL franchise to a location more than 50 miles
from Seattle, Washington.
(c) The other party materially defaults in the performance of its
material obligations under this Agreement and such other party
fails to correct such breach within thirty (30) days of written
notice.
If this Agreement is so terminated by Sponsor, Sponsor shall be
entitled to a pro rata refund of any payments under this Agreement.
8. Remedies
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8.1 Generally. In the event that either party fails to fully comply
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with any of its obligations under this Agreement, the other party shall be
entitled to all remedies set forth in this Agreement and, except as otherwise
provided herein, all remedies otherwise available at law or in equity.
8.2 Limitation on Damages. In no event shall either party be liable
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for any special, incidental or consequential damages arising out of or in
connection with this Agreement or the performance thereof. FNW's liability for
any breach of this Agreement shall be strictly limited to
3.
refunding to Sponsor that portion of any consideration paid by Sponsor for which
Sponsor has not received the rights granted to it herein.
9. Limitations. This Agreement is subject to the Constitution and Bylaws
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and other rules and regulations of the NFL, the statutes and regulations of the
State of Washington, and the ordinances and rules of King County, Washington and
the City of Seattle, Washington as they presently exist or as they may from
time-to-time be amended, including without limitation, any rule or regulation of
the NFL or any agreement to which the NFL is a party which restricts the
visibility of signage within the Kingdome during NFL games which are televised
nationally. The obligations of either party to perform under this Agreement
shall be excused if such failure to perform or any delay is caused by matters
such as acts of God, strikes, lockout, work stoppage, picketing, damage or
concerted action by any employee or labor organization, civil commotion, riots,
war, acts of government, or any other cause whether similar or dissimilar to
those enumerated which are reasonably beyond the control of the party obligated
to perform. Upon the occurrence of such event, the duties and obligations of
the party shall be suspended for the duration of the event preventing
performance.
10. Entire Agreement. The entire agreement between the parties pertaining
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to the subject matter of this Agreement is incorporated into this document.
This Agreement may not be modified or amended except by a writing duly executed
by the parties hereto. This Agreement supersedes any and all prior agreements
and understandings between the parties.
11. Successor Interests. Neither this Agreement nor any of the rights or
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obligations of either FNW or Sponsor hereunder may be assigned, transferred or
conveyed by operation of law or otherwise by either party, nor shall such
agreements or rights inure to the benefit of any trustee in bankruptcy,
receiver, creditor, or trustee of either party's business or its properties
whether by operation of law or otherwise, except with the prior written consent
of the other party, which consent shall not be unreasonably withheld, and the
delivery of a written document in which the assignee assumes all of the
obligations of the assigning party and the assigning party acknowledges that it
will continue to be bound to such obligations if not performed by the assignee.
For purposes of this Paragraph 11, the transfer of a fifty percent (50%) or
greater ownership interest in a party shall be deemed to be an assignment of
this Agreement. Notwithstanding the foregoing, no assignment or attempted
assignment by Sponsor shall be valid except to a party which intends to continue
the business of Sponsor as presently conducted. Sponsor does hereby consent to
any transfer or assignment by FNW of its rights under this Agreement to an
affiliate of FNW without any additional prior consent of Sponsor. Subject to
the foregoing, this Agreement shall be binding upon and shall inure to the
benefit of all successors and assigns of the parties.
12. Confidentiality. Each of the parties deems the provisions of this
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Agreement to be confidential and proprietary in nature. FNW and Sponsor each
agree that the terms of this Agreement will be kept confidential and will not be
disclosed in any manner whatsoever, in whole or in part, by either party without
the prior written consent of the other party except to the extent necessary for
such party to enforce its rights under this Agreement or as either party may be
advised by its legal counsel that it is obligated to disclose the terms of such
agreements. Moreover, each party agrees to disclose the terms of this Agreement
only to its respective officers, employees, agents and representatives who need
to know of such terms and who agree to be bound by the confidentiality terms of
this Paragraph. Each party shall be responsible for any breach of this
Paragraph by its respective officers, employees, agents and representatives.
The terms of this Paragraph shall survive the expiration or termination of this
Agreement for whatever reason for a period of three (3) years after such
expiration or termination.
4.
Notwithstanding the foregoing, FNW may disclose the terms of this Agreement to
King County, Washington and to lenders, legal counsel, and financial advisors.
13. Washington Law. This Agreement shall be deemed to have been made in
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the state of Washington and shall be construed in accordance with the laws of
the state of Washington. The exclusive venue for any suits or actions arising
out of this Agreement shall be in the Superior Court for the State of Washington
for King County or in the United States District Court for the Western District
of Washington.
14. Notices. All notices under this Agreement shall be in writing and
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shall be deemed to have been duly given if personally delivered, sent by
telecopier, sent by overnight courier service or sent by registered or certified
mail, postage prepaid, and shall be deemed given upon the earlier of actual
receipt or one day after it is sent, if sent by overnight courier, or three days
after it is sent by registered or certified mail. All notices or other
communications shall be made as follows:
To FNW: 00000 X.X. 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
V.P./Corporate Sales
With a Copy to: Xxxxxxx X. Xxxxx, Xx.
Vice President/General Counsel
000-000xx Xxxxxx XX., Xxxxx 000
Xxxxxxxx, XX 00000
If to Sponsor: Xxxxxx Xxxxx, Vice President Business Development
Xxxxxx Xxxxxx, General Counsel
MERCATA, Inc.
000 000xx Xxxxxx XX
Xxxxxxxx, XX 00000-0000
15. Arbitration. Any controversy or claim arising out of or relating to
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this Agreement, including, but not limited to a claim based on or arising from
an alleged tort will, at the request of any party be determined by arbitration
in accordance with the Federal Arbitration Act (9 U.S.C. Section 1, et. seq.)
under the auspices and rules of the American Arbitration Association ("AAA").
The AAA will be instructed by either or both parties to prepare a list of judges
who have retired from the Superior Court of the State of Washington, a higher
Washington court or any federal court. Within 10 days of receipt of this list,
each party may strike one name from the list. The AAA will then appoint an
arbitrator from the name(s) remaining on the list. The arbitration will be
conducted from Seattle, Washington. Any controversy in interpretation or
enforcement of this provision or whether a dispute is arbitrable, will be
determined by the arbitrators. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction. The institution
and maintenance of an action for judicial relief or in pursuit of an ancillary
remedy, does not constitute a waiver of the right of any party, including the
plaintiff, to subject the controversy or claim to arbitration.
16. Attorneys' Fees. In the event any suit or action is brought or an
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arbitration or bankruptcy proceeding is initiated (including, without
limitation, appeals of the foregoing) to enforce or interpret any of the
provisions of this Agreement, or which is based thereon, the prevailing party
shall be entitled to reasonable attorney fees in connection therewith. The
determination of who is the prevailing party and
5.
the amount of reasonable attorney fees to be paid to the prevailing party shall
be decided by the court or courts, including any appellate court, in which such
matter is tried, heard, or decided, including the court which hears any
exceptions made to an arbitration award submitted to it for confirmation as a
judgment (with respect to attorneys' fees incurred in such confirmation
proceedings), or by the arbitrator(s) (with respect to attorneys' fees incurred
prior to and during the arbitration proceedings), as the case may be.
17. Relationship of Parties. The parties are acting herein as independent
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contractors and independent employers. Nothing herein contained shall create or
be construed as creating a partnership, joint venture or agency relationship
between the parties and no party shall have the authority to bind the other in
any respect.
18. Agreement Approval. Each party hereby represents and warrants that
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all necessary approvals for this Agreement have been obtained, and the person
whose signature appears below has the authority necessary to execute this
Agreement on behalf of the parties indicated.
19. Captions. Paragraph headings herein are for convenience only and
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shall not affect the construction or meaning of this Agreement.
6.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
FOOTBALL NORTHWEST LLC MERCATA, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxx
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Name: Xxxxx Xxxxxxx Name: Xxxxxx Xxxxx
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(printed or typed) (printed or typed)
Title: VP/Corporate Sales Title: VP, Business Development
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7.
