SPONSORSHIP AGREEMENT AGREEMENT SUMMARY
2008
Sponsorship Agreement- Renewal Sponsor
Exhibit
10.75
AGREEMENT
SUMMARY
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SPONSOR:
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Name:
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Xxxxx’x
Fresh Mexican Grill
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Phone:
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760/000-0000
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Address:
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0000
Xxxxxx Xxxxx, Xxxxx 000
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Xxxxxxxx,
XX 00000
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E-mail:
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***
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Attn:
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Xxxxxxxx
X. Xxxxxxx
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SPONSORSHIP
BENEFITS:
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San
Diego Ballpark Funding LLC (“SDBF”) shall provide Sponsor with the
following benefits, subject to the terms of the General Provisions
attached hereto (the “General Provisions”):
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Signage
benefits
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o
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One
Terrace Level fascia sign. The sign is approximately 3’ x 16’. SDBF to pay
production costs for installation of new signage. SDBF shall install
this
sign on or before March 28, 2008.
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Promotional
benefits
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o
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Padres
Magazine.
Sponsor shall be entitled to one (1) full page, four-color advertisement,
which advertisement is subject to the prior written approval of SDBF
in
its reasonable discretion, in each issue of the Padres Magazine published
during the regular season of the Term.
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Hospitality
benefits
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o
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Season
Tickets.
SDBF shall provide Sponsor with season tickets for ***
seats located in *** during the regular season of the Term.
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TERM:
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The
term (the “Term”) shall commence on November 1, 2007 and end on October
31, 2008 (unless terminated earlier in accordance with the General
Provisions).
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ANNUAL
PAYMENT:
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Sponsor
shall pay $*** to SDBF pursuant to the following:
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$
*** due on or before April 30, 2008
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$
*** due on or before June 30, 2008
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$
*** due on or before August 31,
2008
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*** Portions
of this page have been omitted pursuant to a request for Confidential Treatment
filed separately with the Commission.
This
Sponsorship Agreement (the “Agreement”) consists of (1) this Agreement Summary
(the “Agreement Summary”) and (2) the General Provisions. Sponsor acknowledges
and agrees to be bound by the General Provisions, which are hereby incorporated
into this Agreement. In the event of a conflict between the terms of this
Agreement Summary and the General Provisions, the terms of the General
Provisions shall prevail. Any capitalized term used herein and not otherwise
defined herein shall have the meaning set forth in the General
Provisions.
If
the Annual Payment set forth in this Agreement Summary for any year during
the
Term is more than $500,000, a condition precedent to all obligations herein,
except for those obligations contained in certain provisions specified in the
General Provisions, shall be the approval of this Agreement by the requisite
vote of the holders of the notes issued by SDBF under that certain Note Purchase
Agreement dated as of May 15, 2002 (the “Noteholders”). In the event such
approval is not obtained by twenty (20) days after the date hereof, SDBF shall
give Sponsor prompt written notice thereof, and this Agreement shall be of
no
further force and effect.
Notwithstanding
colloquial descriptions of Sponsor as a “partner,” nothing herein shall be
construed as establishing a legal partnership, joint venture or agency
relationship between SDBF and Sponsor or between Padres L.P. (the “Padres”) and
Sponsor or establishing a joint venture or agency relationship between the
parties.
Upon
execution by both parties, this Agreement is a binding legal
contract.
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SAN
DIEGO BALLPARK FUNDING LLC
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SPONSOR:
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Xxxxx’x
Fresh Mexican Grill
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By:
/s/ Xxxxx X. Xxxxxxx
Xxxxx
X. Xxxxxxx
Its:
Vice President/Sales
Date:
3/21/08
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By:
/s/
LA Xxxxxxx
Xxxxxxxx
X. Xxxxxxx
Its:
SVP of Marketing & Product Development
Date:
3/18/08
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GENERAL
PROVISIONS
This
Sponsorship Agreement (the “Agreement”) consists of (1) the attached Agreement
Summary and (2) these General Provisions. In the event of a conflict between
the
terms of the Agreement Summary and these General Provisions, the terms of these
General Provisions shall prevail.
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1.
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Sponsorship
Benefits.
During the Term, for and in consideration of the Payments set forth
herein, SDBF will furnish to Sponsor Sponsorship Benefits set forth
in the
Agreement Summary, subject to any limitations and conditions imposed
by
the Office of the Commissioner of Baseball generally or with respect
to
specific events such as nationally-televised games, All-Star Games,
playoff games and World Series Games, provided, however, that in
no event
shall SDBF be obligated to furnish Sponsorship Benefits for any period
after a default by Sponsor in payment when due of any amount due
hereunder. Without the express written permission of SDBF acting
in its
sole discretion, Sponsor shall not resell, transfer or distribute
any of
Sponsorship Benefits.
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2.
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Term.
The Term shall commence and end on the dates set forth in the Agreement
Summary, unless terminated earlier in accordance with this Agreement,
provided, however, that in no event shall the Term extend beyond
the term
of the Joint Use and Management Agreement by and between the City
of San
Diego and Padres, L.P. dated as of February 1,
2000.
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3.
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Payments.
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a.
In
consideration of the Sponsorship Benefits to be furnished by SDBF to Sponsor
hereunder, Sponsor shall pay to SDBF the Annual Payments set forth in the
Agreement Summary on the dates set forth therein. Any payment due pursuant
to
this Section that is not received by SDBF within fifteen (15) days after such
payment is due shall bear interest from the date the payment was due until
paid,
at a per annum rate of interest equal to the prime rate of interest as published
in the Wall Street Journal, plus five (5) percentage points, or if such interest
rate is not permitted by applicable law, at the highest non-usurious interest
rate permitted by applicable law. At its sole option, SDBF may terminate this
Agreement in the event that a payment required hereunder is not made within
fifteen (15) days of the date such payment is due and may exercise all other
rights and remedies available to SDBF.
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b.
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All
payments shall be net of any agency fees or commissions that may
be
payable by Sponsor to its advertising agencies in connection with
this
Agreement. In addition, all taxes and other charges of any nature
(other
than federal, state or local income taxes on the income of SDBF)
which may
be levied, assessed or otherwise imposed in connection with the rights
granted under this Agreement by any federal, state or local governmental
authority shall be borne by Sponsor and shall not be deducted from
the
payments due hereunder.
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c.
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In
no event shall Sponsor be permitted to set off any amounts SDBF may
owe to
Sponsor under this Agreement or
otherwise.
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d.
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Forms
of payment accepted are corporate check, cashier's check and wire
transfer
only.
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4.
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Approval
by Noteholders.
If the Annual Payment set forth in the Agreement Summary for any
year
during the Term is more than $500,000, a condition precedent to all
obligations herein, except for those obligations contained in this
Section
4 and in Sections 11-26, shall be the approval of this Agreement
by the
requisite vote of the Noteholders. In the event such approval is
not
obtained by twenty (20) days after the date hereof, SDBF shall give
Sponsor prompt written notice thereof, and this Agreement shall be
of no
further force and effect.
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5.
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Responsibility
for Materials; Advertising
Copy.
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a.
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SDBF
shall be responsible, at its sole cost and expense, for (i) the initial
installation, on or before the beginning of the Term, unless otherwise
stated in the Agreement Summary, of the advertising copy in or on
any
signage to be furnished hereunder (the “Signage”), (ii) maintaining
the fixed panel structures and (if applicable) the lighting system
for the
Signage and (iii) furnishing any fan giveaway items to be furnished
hereunder (the “Promotional Items”) (subject to any limitations with
respect thereto as set forth in the Agreement Summary or agreed to
by the
parties) and any promotional materials prepared by SDBF with respect
to
the Promotional Items.
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b.
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Sponsor
shall be responsible, at its sole cost and expense, for (i) the
design, production and preparation of all advertising copy and commercial
messages to be displayed, published, broadcast or telecast pursuant
to
this Agreement in accordance with the deadlines established by SDBF,
(ii) furnishing to SDBF Sponsor's name, brand names, trademarks,
service marks, logos or other identification, for use in or the
Promotional Items, promotional materials prepared by SDBF with respect
to
the Promotional Items, and any advertisements or commercial messages
to be
furnished hereunder, and (iii) maintaining the advertising copy
displayed in or on the Signage in good and attractive order, repair
and
condition throughout the Term, including the cost of painting or
repainting the advertising copy displayed on the Signage to the extent
necessary in the reasonable judgment of SDBF.
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c.
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All
advertising copy and commercial messages displayed, published, broadcast
or telecast pursuant to this Agreement, and all characteristics thereof
(including without limitation design, layout, elevation, configuration,
content, size and color), must be approved in advance by SDBF and
Major
League Baseball.
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d.
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Sponsor
shall have the right to change or modify any advertising copy displayed
pursuant to this Agreement, subject to SDBF's right of approval of
all
proposed changes or modifications (and the timing thereof). Any changes
or
modifications of advertising copy shall be designed, produced and
prepared
and, if applicable, erected and installed, at Sponsor’s sole cost and
expense. Sponsor agrees to provide SDBF with all proposed changes
or
modifications of advertising copy at least thirty (30) days prior
to the
proposed date of display thereof.
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6.
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Display
of Signage.
All advertising copy to be displayed on Signage shall be displayed
on such
Signage (and with respect to Signage designed to be illuminated,
illuminated during night events) during all regular-season San Diego
Padres baseball games (each, a “Padres Game”) scheduled to be played at
the ballpark located on Parcel 1 of Parcel Map No. 18855, in the
City of
San Diego, County of San Diego, State of California, according to
the map
thereof filed in the Office of the County Recorder or San Diego County,
On
December 7, 2001 (the “Ballpark”) and during other events held at the
Ballpark, except for the following in the sole and absolute discretion
of
SDBF: (1) events during which advertising is prohibited by federal,
state
or local laws or regulations, (2) events with respect to which the
display
of the Signage is inappropriate (e.g., religious services, political
conventions, television or film production or private events with
conflicting interests) or impractical (e.g., events at which staging
obscures or prevents the display of Signage), and (3) with respect to
illumination, events where blackout conditions are required by the
nature
of the event (e.g., fireworks displays, concerts, and television
or film
production). The location, size, content and display of all Signage
are
subject to all applicable laws, including without limitation any
applicable sign ordinance, and subject to Major League Baseball (“MLB”)
requirements and conditions, whether applicable generally or with
respect
to specific events such as nationally-televised games, World Baseball
Classic games, All-Star Games, playoff games and World Series games
and
whether applicable to all categories of advertiser or only to certain
categories.
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7.
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Use
of Trademarks and Service Marks.
Sponsor hereby grants to SDBF a limited license to display Sponsor's
name,
brand names, trademarks, service marks, logos and other identification
in
or on the Promotional Items, promotional materials prepared by SDBF
with
respect to the Promotional Items, and any advertisements or commercial
messages to be furnished hereunder. Except as expressly provided
herein,
neither party shall have the right to use, or obtain an interest
in, the
name, brand names, trademarks, service marks, logos or other
identification of the other party or its affiliates without the other
party's prior written consent. All advertising or promotional materials
displayed, distributed or otherwise used pursuant to this Agreement
in
conjunction with the name, logos, trademarks, service marks or other
identification of the Padres must be approved in advance by the
Padres.
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8.
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Indemnity;
Insurance; and Assumption of the Risk.
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a.
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SDBF
agrees to indemnify, protect, defend, and hold harmless Sponsor,
its
affiliates, predecessors and successors, owners, agents, partners,
officials, employees and representatives (collectively, the "Sponsor
Parties") from and against any and all actions, demands, liabilities,
losses, claims, damages, costs or expenses, including without limitation
court costs and attorneys' fees (collectively, the "Claims"), arising
from
the negligence or willful misconduct of SDBF or any of its affiliates,
predecessors and successors, owners, agents, partners, officials,
employees or representatives. In the event that any Claim is brought
against any of Sponsor Parties, then, upon receipt of notification
of such
Claim, SDBF will assume the defense of such Claim and, upon the request
of
one or more of Sponsor Parties, will permit such party or parties
to
participate in the defense, such participation to be at such party’s
expense. This provision shall survive any cancellation or termination
of
this Agreement as to activities which occurred while this Agreement
was in
force.
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b.
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Sponsor
agrees to indemnify, protect, defend, and hold harmless SDBF, the
City of
San Diego, the Public Facilities Financing Authority and their respective
affiliates, predecessors and successors, owners, agents, partners,
officials, employees and representatives (collectively, the "Padres
Parties") from and against any and all Claims (i) for libel, slander,
defamation, invasion of privacy, improper trade practices, illegal
competition, infringement of trademark, trade name, copyright, licenses
or
other proprietary rights, or unfair competition, arising from or
alleged
to arise from the display, publication, broadcast, telecast or
distribution of any advertising copy or commercial message furnished
by
Sponsor Parties, or any name, brand names, trademarks, service marks,
logos or other identification furnished by Sponsor Parties; (ii)
arising
from any promotion run in connection with this Agreement; and (iii)
arising from the negligence or willful misconduct of any of Sponsor
Parties. In the event that any Claim is brought against any of the
Padres
Parties, then, upon receipt of notification of such Claim, Sponsor
will
assume the defense of such Claim and, upon the request of one or
more of
the Padres Parties, will permit such party or parties to participate
in
the defense, such participation to be at such party’s expense. This
provision shall survive any cancellation or termination of this Agreement
as to activities which occurred while this Agreement was in force.
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c.
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Sponsor
must obtain, and continuously maintain, at its own expense, the following
insurance policies:
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1.
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Workers’
Compensation in compliance with California’s laws, including Employers’
Liability with minimum limits of:
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$
***
Each
Accident;
$
***
Disease - Each Employee;
$
***
Disease - Policy Limit.
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2.
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An
Insurance Services Office occurrence based Commercial General Liability
Insurance Policy, including contractual liability and products/completed
operations liability coverage with minimum limits
of:
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$
***
Each Occurrence;
$
***
General Aggregate;
$
***
Products/Completed Operations Aggregate.
All
insurance policies must be issued by an admitted insurance carrier with an
A.M.
Best rating of A-8 or better. SDBF, Padres LP, the City of San Diego and each
of
their subsidiary or affiliated companies and its and their directors, officers
and employees must be named as
Additional Insureds under the Commercial General Liability, Automobile Liability
and Umbrella Liability Policies. All of these policies must contain Cross
Liability Endorsements, or their equivalent. Further, coverage for the
Additional Insureds shall apply on a primary basis irrespective of any other
insurance, whether collectible or not. All policies shall be endorsed to provide
a Waiver of Subrogation in favor of SDBF. In the event of cancellation,
non-renewal or material modification SDBF shall receive thirty (30) days written
notice thereof. Sponsor shall provide SDBF with certificates of insurance
evidencing compliance with all insurance provisions noted above prior to the
commencement of the sponsorship and annually prior to the expiration of each
required insurance policy.
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9.
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Compliance
with Rules, Regulations and Policies; Conduct. All
use by Sponsor and Sponsor’s invitees of any hospitality benefits granted
hereunder shall be subject to the rules, regulations and policies
established from time to time by SDBF and/or the Padres and may be
revoked
in the event of the failure of Sponsor or Sponsor’s invitees to comply
with such rules, regulations and policies. At the request of SDBF,
Sponsor
will enter into SDBF’s standard-form Founders Club Agreements with respect
to any Founders Club or premium seating benefits furnished hereunder.
With
respect to any hospitality benefits granted hereunder, Sponsor and
Sponsor’s invitees shall maintain proper decorum, comply with all laws,
rules and regulations of all governmental authorities, not suffer
or
permit the continuation of any use or manner of use of the hospitality
benefits in violation of any applicable Founders Club Agreements,
not
create any nuisance, and not take any action which either diminishes
hazard insurance coverage for the Ballpark or increases the premium
payable for such insurance. Sponsor and Sponsor’s invitees shall be bound
by and observe the terms and conditions upon which any admission
tickets
are issued or sold.
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*** Portions
of this page have been omitted pursuant to a request for Confidential Treatment
filed separately with the Commission.
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10.
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Temporary
Interruption.
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| a. |
Except
as otherwise provided in this Section 10, there shall be no effect
on the
obligations of SDBF and Sponsor as a result of a temporary failure
properly to provide Sponsorship Benefits pursuant to this Agreement.
The
provisions of subsections (b) through (f) of this Section 10 shall
constitute the sole remedy for the inability of SDBF to provide
Sponsorship Benefits for any reason other than intentional breach
by
SDBF.
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b.
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If
any portion of the Signage is not properly displayed (including Signage
that is damaged or not properly illuminated) during more than
***
Padres Games in a calendar year for any reason whatsoever, whether
within
or beyond the reasonable control of SDBF or the Padres, including
without
limitation a work stoppage or temporary unavailability of the Ballpark,
SDBF shall have the option, on written notice to Sponsor, (i) to
extend
the Term beyond its expiration to include the number of events first
taking place at the Ballpark after such expiration as may be necessary
to
make up the number of Padres Games in excess of *** such games during
which such Signage was not properly displayed, (ii) to provide substitute
sponsorship benefits to Sponsor with a value at least equal to the
amount
paid for the affected Signage for the Padres Games in excess of ***
games
during which such Signage was not properly displayed, or (iii) to
refund
to Sponsor a pro-rata portion of that part of the amount paid by
Sponsor
for the affected Signage, which shall be calculated by multiplying
such
part of the amount paid for the affected Signage by a fraction, the
numerator of which shall be the number of Padres Games during which
such
Signage was not properly displayed minus *** , and the denominator
of
which shall be eighty-one (81). All refunds shall be paid within
thirty
(30) days after the end of the calendar year to which such refund
applies.
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c.
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If
a giveaway or promotional event scheduled to be conducted pursuant
to this
Agreement is not conducted for any reason whatsoever, whether within
or
beyond the reasonable control of SDBF or the Padres, including without
limitation a work stoppage or temporary unavailability of the Ballpark,
SDBF shall have the option, on written notice to Sponsor, (i) to
reschedule such giveaway or promotional event on a date satisfactory
to
Sponsor during the season in which the promotional event was scheduled
or,
if no such date is available, during the succeeding season, (ii)
to
provide substitute sponsorship benefits to Sponsor with a value at
least
equal to the amount paid by Sponsor for the missed giveaway or promotional
event, or (iii) to refund to Sponsor the amount paid by Sponsor for
the missed giveaway or promotional event. All refunds shall be paid
within
thirty (30) days after the end of the calendar year to which such
refund
applies.
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d.
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If
a promotional program is scheduled to take place pursuant to this
Agreement over more than *** Padres Games during a calendar year,
and more
than *** of the Padres Games in a calendar year that are part of
such
promotional program are not played for any reason whatsoever, whether
within or beyond the reasonable control of SDBF or the Padres, including
without limitation a work stoppage or temporary unavailability of
the
Ballpark, SDBF shall have the option, on written notice to Sponsor,
(i) to
extend the promotional program to make up for the number of Padres
Games
in excess of *** such games which were not played, either in the
season
during which the promotional program was scheduled to take place
or in the
succeeding season, (ii) to provide substitute sponsorship benefits to
Sponsor with a value at least equal to the amount paid by Sponsor
for that
portion of the promotional program missed in excess of *** games,
or (iii)
to refund to Sponsor a pro-rata portion of the amount paid for such
promotional program, which shall be calculated by multiplying the
amount
paid by Sponsor by a fraction, the numerator of which shall be the
number
of Padres Games not played minus *** , and the denominator of which
shall
be the number of Padres Games that are part of the promotional program
for
such calendar year. All refunds shall be paid within thirty (30)
days
after the end of the calendar year to which such refund
applies.
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*** Portions
of this page have been omitted pursuant to a request for Confidential Treatment
filed separately with the Commission.
Sponsorship
Agreement- Renewal Sponsor
General
Provisions
Page
5
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e.
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If
advertising scheduled to be published, broadcast, telecast or displayed
pursuant to this Agreement is not published, broadcast, telecast
or
displayed for any reason whatsoever, whether within or beyond the
reasonable control of SDBF or the Padres, including without limitation
a
work stoppage or temporary unavailability of the Ballpark, SDBF shall
have
the option, on written notice to Sponsor, (i) to provide Sponsor
with the
missed advertising in alternate magazine issues or broadcast
availabilities or, for advertising scheduled to be displayed during
Padres
Games, in alternate Padres Games, (ii) to provide substitute
sponsorship benefits to Sponsor with a value at least equal to the
amount
paid by Sponsor for the advertising missed, or (iii) to refund to
Sponsor
a pro-rata portion of the amount paid by Sponsor for the advertising,
which shall be calculated by multiplying the amount paid by a fraction,
the numerator of which shall be the number of such missed messages,
and
the denominator of which shall be the number of messages which Sponsor
was
to receive.
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f.
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In
no event shall the aggregate amount of remediation pursuant to subsections
(b) through (e) of this Section for any calendar year exceed the
Annual
Payment made by Sponsor for such calendar
year.
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| 11. |
Limitation
on Damages.
The parties agree that neither party shall be liable for, and in
no event
whatsoever shall damages or other award based on this Agreement or
the
performance or failure to perform any provision hereof include, any
recovery for loss-of-profits, loss-of-business, special, indirect,
consequential or punitive damages.
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| 12. |
Default.
If (i) Sponsor fails to pay any amounts within fifteen (15) days of
the date such payment is due pursuant to this Agreement, (ii) Sponsor
otherwise defaults in the performance or observance of Sponsor’s duties
and obligations under this Agreement and fails to cure such default
within
fifteen (15) days after notice thereof by SDBF, or (iii) Sponsor
makes an assignment of substantially all of its assets for the benefit
of
creditors, is adjudicated bankrupt, files a voluntary petition in
bankruptcy or a voluntary petition or an answer seeking reorganization,
arrangement, readjustment of its debts or for any other relief under
Title
11 of the United States Code or any successor or other federal or
state
insolvency law (“Bankruptcy Law”), has filed against it an involuntary
petition in bankruptcy or seeking reorganization, arrangement,
readjustment of its debts or for any other relief under any Bankruptcy
Law, which petition is not discharged within thirty (30) days, or
applies
for or permits the appointment of a receiver or trustee for its assets,
SDBF may, at its option, with or without notice or demand, (x) terminate
the rights of Sponsor under this Agreement, whereupon SDBF shall
have no
further obligation of any kind to Sponsor, and Sponsor shall have
no right
to recovery or offset of any amounts previously paid to SDBF under
this
Agreement, and (y) exercise all other rights and remedies available
to
SDBF. Any notice required to be given hereunder shall be in lieu
of, and
not in addition to, any notice required under California Code of
Civil
Procedure Section 1161 or any similar or successor law.
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| 13. |
No
Legal Partnership.
Notwithstanding
colloquial descriptions of Sponsor as a “partner,” nothing herein shall be
construed as establishing a legal partnership, joint venture or agency
relationship between SDBF and Sponsor or between the Padres and Sponsor.
Neither SDBF nor the Padres has authority to bind or act in any respect
on
behalf of Sponsor, and Sponsor does not have authority to bind or
act in
any respect on behalf of SDBF or the
Padres.
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| 14. |
Exclusivity.
No marketing exclusivity in any category or with respect to any
competitors of Sponsor is conferred or implied by this Agreement
except to
the extent explicitly set forth in the Agreement Summary. Any marketing
exclusivity set forth in the Agreement Summary shall not preclude
or
prevent (a) signage, advertising and promotional arrangements made
by the
Office of the Commissioner of Baseball with respect to
nationally-televised games, All-Star Games, World Baseball Classic
games,
playoff games and World Series games, (b) licensing arrangements
made by
Major League Baseball Properties, Inc. with respect to such category,
(c)
advertising with respect to such category in game programs, yearbooks,
scorecards and similar publications which are sold on the day of
an event
other than Padres home games, (d) the display before, during and
after an
event of displays, temporary in nature, erected by an event sponsor,
promoter, broadcaster or participant, even though such display may
constitute advertising with respect to such category, (e) promotional
messages displayed on a scoreboard or video board which give the
name of
the sponsor of Ballpark day-of-event promotions at events other than
Padres home games or promote sale of event-day programs (including
identifying program sponsors), even though such messages may identify
companies in such category and (f) promotional messages displayed
on a
scoreboard or video board that recognize groups in attendance and
make
similar incidental references, even though such messages may identify
companies in such category.
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Sponsorship
Agreement- Renewal Sponsor
General
Provisions
Page
6
| 15. |
Compliance
with Laws.
This
Agreement shall be subject to all federal, state and local laws,
regulations and ordinances, either presently in existence or as may
be
enacted, made or enforced after the effective date of this Agreement,
including the regulations and actions of all governmental agencies
or
commissions.
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| 16. |
Subservience.
Notwithstanding any other provision of this Agreement, this Agreement
and
any rights or exclusivities granted by SDBF hereunder shall in all
respects be subordinate to each of the following, as may be amended
from
time to time (collectively, “MLB Documents”): (i) any present or future
agreements entered into by, or on behalf of, any of the MLB entities
or
affiliates, or the member Clubs acting collectively, including, without
limitation, agreements entered into pursuant to the Major League
Constitution, the American and National League Constitutions, the
Professional Baseball Agreement, the Major League Rules, the Interactive
Media Rights Agreement, and each agency agreement and operating guidelines
among the MLB Clubs and an MLB entity, or (ii) the present and future
mandates, rules, regulations, policies, bulletins or directives issued
or
adopted by the Commissioner or the MLB entities. The issuance, entering
into, amendment, or implementation of any of the MLB Documents shall
be at
no cost or liability to any MLB entity or affiliate or to any individual
or entity related thereto. The territory within which Sponsor is
granted
rights is limited to, and nothing herein shall be construed as conferring
on Sponsor rights in areas outside of, the Home Television Territory
of
the Padres, as established and amended from time to time. No rights,
exclusivities or obligations involving the Internet or any interactive
or
on-line media (as defined by the MLB entities) are conferred by this
Agreement, except as are specifically approved in writing by the
applicable MLB entity.
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| 17. |
Integration.
This Agreement is the final, complete and exclusive statement and
expression of the agreement among the parties hereto with relation
to the
subject matter of this Agreement, it being understood that there
are no
oral representations, understandings or agreements covering the same
subject matter as this Agreement. This Agreement supersedes, and
cannot be
varied, contradicted or supplemented by evidence of any prior or
contemporaneous discussions, correspondence, or oral or written agreement
of any kind. All exhibits hereto are incorporated herein by
reference.
|
| 18. |
Severability.
In case any provision of this Agreement shall be invalid, illegal
or
unenforceable, such provision shall be severed from this Agreement.
The
validity, legality and enforceability of the remaining provisions
of this
Agreement shall not in any way be affected or impaired
thereby.
|
| 19. |
Sophistication
of Parties.
Each party to this Agreement represents that it is a sophisticated
commercial party capable of understanding all of the terms of this
Agreement, that it has had an opportunity to review this Agreement
with
its counsel, and that it enters this Agreement with full knowledge
of the
terms of the Agreement.
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| 20. |
No
Waiver.
No delay of or omission in the exercise of any right, power or remedy
accruing to any party under this Agreement shall impair any such
right,
power or remedy, nor shall it be construed as a waiver of any future
exercise of any right, power or
remedy.
|
| 21. |
Notices.
All notices, demands, consents and approvals that may or are required
to
be given by any party to another hereunder shall be in writing and
shall
be deemed to have been fully given by personal delivery or when deposited
in the United States mail, certified or registered, postage prepaid,
and
addressed to the party to be notified, if to Sponsor, at the address
specified on the Agreement Summary, and if to SDBF, at PETCO Park,
000
Xxxx Xxxx, Xxx Xxxxx, XX 00000, Attn: General Counsel, or to such
other
place as the party to be notified may from time to time designate
by at
least fifteen (15) days’ notice to the notifying party.
|
| 22. |
Consent
to Assignment.
Sponsor hereby acknowledges and irrevocably consents to (a) the assignment
of this Agreement by SDBF to the Bank of New York Trust Company of
Florida, N.A., as collateral trustee (the “Collateral Trustee”) under the
Trust and Security Agreement, dated as of May 15, 2002, among SDBF,
the
Padres and the Collateral Trustee, and (b) the grant by SDBF to the
Collateral Trustee of a security interest in this Agreement and all
monies
payable or distributable under this Agreement, subject to the terms
of the
Trust and Security Agreement. Sponsor shall not claim prevention
of or
interference with performance of Sponsor’s obligations pursuant to this
Agreement or the suspension or termination of Sponsor’s obligations under
this Agreement as the result of any default under this Agreement,
without
first giving a copy of any notice of default or termination to the
Collateral Trustee and providing the Collateral Trustee with the
opportunity to cure any such default within one hundred twenty (120)
days
after the date of such notice. Such notice shall be in writing and
shall
be deemed to have been given (i) when presented personally, (ii)
when
delivered by private overnight courier service (e.g., Federal Express),
delivery charges and fees prepaid, or (iii) when received, if deposited
in
a regularly maintained receptacle for the United States Postal Service,
postage prepaid, registered or certified, return receipt requested,
addressed to the Collateral Trustee at the address indicated below
(or
such other address as the Collateral Trustee may have specified by
written
notice delivered in accordance
herewith):
|
Sponsorship
Agreement- Renewal Sponsor
General
Provisions
Page
7
The
Bank
of New York Trust Company of Florida, N.A.
00000
Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Corporate Trust Department
Sponsor
shall not enter into or consent to any supplement, amendment or other
modification of this Agreement that affects the rights of the Collateral Trustee
under this Section without the prior written consent of the Collateral
Trustee.
| 23. |
Assignment.
Except
as provided in Section 22, no party shall assign this Agreement
without the prior written approval of the other party, provided,
however,
that without obtaining such prior written approval, (a) SDBF may
assign
this Agreement to a transferee of the Padres’ MLB franchise or to an
affiliate of the Padres, and (b) Sponsor may assign this Agreement to
an affiliate of Sponsor, provided that Sponsor shall continue to
be
obligated to SDBF for performance of Sponsor’s obligations
hereunder.
|
| 24. |
Jurisdiction,
Venue and Service of Process.
ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
DOCUMENT
RELATED HERETO MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA,
COUNTY OF SAN DIEGO OR ANY COURT OF THE UNITED STATES OF AMERICA
FOR THE
SOUTHERN DISTRICT OF CALIFORNIA, AND, BY EXECUTION AND DELIVERY OF
THIS
AGREEMENT, EACH PARTY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF SUCH
COURTS.
THE PARTIES IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION
TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH
ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION
OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. EACH PARTY IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OF ANY OF SUCH COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED
OR
CERTIFIED MAIL, POSTAGE PREPAID, TO EACH OF THE OTHER PARTIES AT
ITS
ADDRESS PROVIDED HEREIN, SUCH SERVICE TO BECOME EFFECTIVE THIRTY
(30) DAYS
AFTER SUCH MAILING.
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| 25. |
Facsimile
Signatures and Counterparts.
The parties agree that this Agreement will be considered signed when
the
signature of a party is delivered by facsimile transmission. Such
facsimile signature shall be treated in all respects as having the
same
effect as an original signature. This Agreement may be executed in
any
number of counterparts, each of which shall be deemed an original,
but all
of which, taken together, shall constitute one and the same
instrument.
|
| 26. |
Amendments.
Except as otherwise provided herein, all amendments to this Agreement
shall be in writing and executed by both
parties.
|
| 27. |
Governing
Law.
This Agreement shall be interpreted and enforced according to the
laws of
the State of California without regard to principles of conflict
of
laws.
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