EXHIBIT 10.21
THIS AGREEMENT, dated for reference purposes as of July 12, 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. Television
1. Three (3) :30 second Sponsor produced commercials ("Concept
Ads") to air within each of three (3) preseason telecasts.
2. Three (3) :30 second Seahawks produced commercials ("Products
Ads") to air within each of three (3) preseason telecasts.
Content shall be reviewed and approved by Sponsor. Xxxxx
Xxxxxxx will be featured in the commercial.
3. Opening/closing billboards in each of three (3) Seahawks
preseason games including Sponsor logo.
4. Sponsorship of one (1) feature ("Instant Replay") in three (3)
preseason games including billboard and Sponsor logo visual.
Total of three (3) features, billboards and logo
identifications.
5. Three (3) Sponsor logo exposures in the Hawk Box Scoreboards per
quarter during three (3) preseason games.
6. Sponsor a minimum of three (3) "live" power buy announcements
("Live Ads") during the course of three (3) telecasts.
Announcement format to be determined.
7. Production: Seahawks will cover all hard costs to create, direct
and produce one (1) :30 second TV spot to be used in three (3)
preseason telecasts. Sponsor
1.
will provide creative direction for the production and shall
have the right to use such commercial where appropriate in its
general advertising campaign or within certain promotional
material during the 1999 season.
8. The sequence of TV appearance should always be:
. FIRST appearance: Concept Ad (before last commercial series
prior to a break)
. SECOND appearance: Products Ad (last commercial series prior
to a break)
. THIRD appearance: Live Ad (during the break)
One sequence per quarter from 1st to 3rd quarter.
B. Kingdome Promotion/DiamondVision
1. Two (2) DiamondVision announcements per game for three (3)
games. Total of six (6) DiamondVision announcements. Content
will have to be reviewed and approved by Sponsor.
2. Sponsor opportunity to run :30 second television spot on
DiamondVision during pregame warm-ups for three (3) preseason
games. Total of three (3) spots
3. Sponsor (Promotional) road trip for two (2) including airfare,
hotel and game tickets. Must participate in Sponsor/Seahawks
Sweepstakes to be eligible for road trip. Designated road trip:
Seattle @ Chicago on September 19, 1999. The value of this
package is less $5,000 and shall be provided by FNW.
C Xxxxxxxx.xxx
1. One (1) rotating banner ad on Xxxxxxxx.xxx for sixty (60) days
(August through September 1999) Extension beyond the sixty (60)
days to offered to Sponsor at favorable cpm based rate.
2. Seahawks to promote Sponsor online store from Xxxxxxxx.xxx's
front page by providing a graphic and a text link directing
visitors to Xxxxxxx.xxx. Text and graphics to be provided by
Sponsor, and reviewed and approved by Xxxxxxxx.xxx.
3. Sponsor acknowledgement on Seahawks Television network web page
on Xxxxxxxx.xxx
4. Sponsor will feature an online Seahawks-themed store selling
Seahawks merchandising at Xxxxxxx.xxx.
D. VIP Benefits
1. Two (2) season tickets with option to purchase two (2) playoff
tickets
2. Twenty (20) tickets to two (2) preseason home games, August 14
and August 28, 1999.
3. One half-page color ad in Seahawks Insider for the 1999 season.
Deadline for ad July 23, 1999. If Sponsor cannot meet the
deadline, Seahawks will provide similar opportunity to be
determined (i.e.: letter to season ticket holders introducing
Mercata).
4. One (1) trip for two (2) to Training Camp. Includes
transportation, hotel and entertainment
5. One "Advertorial" in first pre-season issue of NFL Insider to
explain the Mercata 'story' and groundbreaking partnership with
the Seahawks (Mercata to write and provide advertorial).
6. Mercata's use of Seahawks trademarks for promotional purposes
extends throughout the 1999 season.
2.
2. Term. The term of this Agreement shall commence on July 19, 1999 and shall
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thereafter continue until all above described 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 services
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and products granted and provided to Sponsor by FNW hereunder, Sponsor hereby
agrees to pay FNW a sponsorship fee in the amount of Forty thousand Dollars
($40,000 net) (the "Sponsorship Fee").
3.1. Invoices and Payment. FNW will send Sponsor invoices Sponsorship Fee in
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two (2) monthly installments beginning September 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 creative
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material shall be within the discretion of Sponsor. However, if FNW objects
to any such material when it is provided 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, obtain
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any right, 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,
videotape, 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.
5.2. Use of FNW and Seattle Seahawks Trademarks. Sponsor shall not, by this
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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 harmless
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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
3.
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 with
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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 for
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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 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 and
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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
4.
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 to
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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 Agreement
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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. 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 the
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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 shall be
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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
5.
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 Xxx. X.X., Xxxxx 000
Xxxxxxxx, XX 00000
If to Sponsor. Xxxxxx Xxxxx, Director 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 this
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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 submit 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 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.
6.
18. Agreement Approval. Each party hereby represents and warrants that all
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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 shall not
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affect the construction or meaning of this Agreement.
7.
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 X. Xxxxxxx By: /s/ Xxx Xxx Xxxx
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Name: Xxxxx X. Xxxxxxx Name: Xxx Xxx Xxxx
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(printed or typed) (printed or typed)
Title: VP/Corporate Sales Title: President & CEO
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8.
