New Jersey-Frankford-Skylands Park Stadium Lease Agreement - Millennium Sports Management Inc. and Newark Bears Inc.
STADIUM LEASE AGREEMENT (this "Agreement"), entered into as of this ____ day
of February, 1999, by and between MILLENNIUM SPORTS MANAGEMENT, INC., a New
Jersey corporation having offices at Ross' Corner, U.S. Highway 206 and County
Route 565, P.O. Box 117, Augusta, New Jersey 07822-0117 ("Lessor"), and NEWARK
BEARS, INC., a ______________ corporation having offices at 10 Bridge Street,
Newark, New Jersey 07102 ("Lessee").
W I T N E S S E T H:
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WHEREAS, Lessor owns and operates a 4,300-seat capacity baseball stadium known
as Skylands Park, located in Frankford Township, New Jersey; and
WHEREAS, Lessee owns and operates the Newark Bears professional baseball team,
which Team is a member of and plays in the independent Atlantic League; and
WHEREAS, pending the completion of its permanent home stadium in or around
Newark, New Jersey, Lessee desires to utilize the Stadium (as such term is
hereinafter defined) for a portion of the Team's home games during the 1999
baseball season; and
WHEREAS, Lessor and Lessee are ready, willing and able to enter into an
agreement for Lessee's use of the Stadium on the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions.
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As used in this Agreement, the following capitalized terms have the following
meanings:
(a) Alcoholic Concessions. "Alcoholic Concessions" means any and all beer
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and/or other alcoholic beverages which may be offered for sale at the
Stadium.
(b) Baseball Days. "Baseball Days" has the meaning ascribed thereto in Section
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5(a) below. The current schedule of dates for Baseball Days is annexed
hereto as Schedule A.
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(c) Cardinals. "Cardinals" means the New Jersey Cardinals Minor League
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professional baseball team in the New York-Penn League, or any other
replacement baseball team which constitutes the primary tenant of the
Stadium at the time in question.
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(d) Concessions. "Concessions" means, collectively, Alcoholic Concessions and
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Non-Alcoholic Concessions.
(e) League. "League" means the independent Atlantic League of professional
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baseball teams, of which the Team is a member in good standing.
(f) Lessee's Souvenirs. "Lessee's Souvenirs" means scorecards, posters,
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yearbooks, publications, catalogs, programs, media guides, flags, symbols,
pennants, toys, pins, key chains, bats, hats, t-shirts, sweatshirts,
jerseys, clothing and all other such merchandise of similar type known
generally as novelty or souvenir items which, in each case, bear the logo
of or are directly related to the League or any member teams thereof
(including but not limited to the Team).
(g) Lessor's Souvenirs. "Lessor's Souvenirs" means scorecards, posters,
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yearbooks, publications, catalogs, programs, media guides, flags, symbols,
pennants, toys, clothing and all other such merchandise of similar type
known generally as novelty or souvenir items, other than items constituting
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Lessee's Souvenirs.
(h) Non-Alcoholic Concessions. "Non-Alcoholic Concessions" means all food,
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soft drinks and other similar or related goods and services (other than
alcoholic beverages) which may be offered for sale at the Stadium on
Baseball Days; provided, however, that "Non-Alcoholic Concessions" shall
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not include any sales or revenues from skyboxes in Skylands Park or from
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the recreational facility, sporting goods store, exhibition hall and other
facilities excluded from the definition of the "Stadium."
(i) Souvenirs. "Souvenirs" means, collectively, Lessee's Souvenirs and
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Lessor's Souvenirs.
(j) Stadium. "Stadium" means the baseball stadium known as Skylands Park, and
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any successor stadium at the same location known by the same, similar or
different name, together with all parking areas, grass fields, fixtures,
equipment, additions, alterations, improvements, appurtenances and the like
located thereon or related thereto, located generally at the intersection
of U.S. Route 206, New Jersey Route 15, and Sussex County Route 565, all in
Frankford Township, Sussex County, New Jersey; provided, however, that the
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"Stadium" shall not include any of the skyboxes in Skylands Park or any of
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the ancillary buildings or facilities within the complex in which the
Stadium is located, including but not limited to the recreational facility,
the sporting goods store, the exhibition hall, and the clubhouse and
administrative building in such complex.
(k) Team. "Team" means the Newark Bears franchise in the League, which Team is
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owned and operated by Lessee.
(l) Term. "Term" means the period commencing on May 13, 1999 and continuing
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through June 29, 1999, during which period all of the Baseball Days will
take place.
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2. Term. Subject to prior termination in accordance with Section 3 below,
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the term of this Agreement shall be for (and shall be limited to) the Baseball
Days during the Term. In the event that any Team home game during the Term is
required to be rescheduled due to inclement weather or other conditions beyond
the control of Lessee, then Lessee shall consult with Lessor with respect to
scheduling an alternate date during the Term for such postponed game, and the
parties shall cooperate in good faith to accommodate any such required
scheduling; provided, however, that Lessee recognizes (a) the priority which
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Lessor is required to accord to the Cardinals with respect to the Cardinals'
home games, and (b) the possibility of Lessor making other commitments with
respect to the Stadium for days which are not listed on Schedule A hereto.
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3. Termination.
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(a) This Agreement may be terminated:
(i) at the option of Lessor, in the event that Lessee shall fail to perform
any material obligation of Lessee under this Agreement, and such non-
performance shall continue uncured for (A) in the case of non-payment of
money, five (5) days after written notice thereof to Lessee, and (B) as to
any other default, ten (10) days after written notice thereof to Lessee;
(ii) at the option of Lessee, in the event that Lessor shall fail to perform
any material obligation of Lessor under this Agreement, and such non-
performance shall continue uncured for (A) in the case of non-payment of
money, five (5) days after written notice thereof to Lessor, and (B) as to
any other default, ten (10) days after written notice thereof to Lessor;
or
(iii) at the option of either party, in the event that any material portion of
the Stadium shall be condemned or taken by the exercise of the right of
eminent domain.
(b) Termination of this Agreement (whether upon scheduled expiration, pursuant
to this Section 3, or otherwise) shall be without prejudice to (i) any all
outstanding obligations of the parties accrued hereunder through the
effective date of termination, and (ii) any claims for damages arising out
of the event or cause constituting the basis for such termination
(including, without limitation, in the event of Lessee's breach, Lessor's
right to require the immediate payment of all base rent for the remainder
of the Term based on the 18-Baseball Day minimum hereunder or such greater
number of Team games as were actually played at the Stadium prior to
termination).
4. Rent.
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(a) In consideration of the use of the Stadium hereunder, Lessee shall pay base
rent to Lessor for each Baseball Day at the rate of $3,000 per Baseball
Day. Except as otherwise provided in Section 4(d) below, a split
doubleheader (i.e., two Team games scheduled for a single calendar day)
shall be treated as two Baseball Days, for which a separate base rental
shall be payable for each.
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(b) It is contemplated that the Team will play not less than eighteen (18) and
not more than twenty-one (21) regulation length home games during the Term,
provided that the parties acknowledge that, under certain circumstances
(e.g., on the last day of a homestand on which the visiting team is not
scheduled to revisit the Team during the Term), a rainout or other such
postponement may not be capable of being made up. The base rent therefor
shall be payable in installments as follows: (i) $10,000 due and payable
not later than March 1, 1999; (ii) $10,000 due and payable not later than
May 15, 1999; (iii) $12,000 due and payable not later than June 1, 1999;
(iv) $12,000 due and payable not later than June 15, 1999; (v) $12,000 due
and payable not later than June 30, 1999; and (vi) the unpaid balance (if
any) of such base rent due and payable not later than July 15, 1999
(subject to Lessee's rights to offset thereagainst the amount of any
payment then due and payable to Lessee pursuant to Section 12(b) and/or
Section 14 below). Such base rent shall be earned and payable regardless
of whether or when the Team's permanent home stadium is ready for use or
(except in the event of termination of this Agreement by Lessee pursuant to
Section 3 above) whether any of the Team games scheduled for the Stadium
are played at the Stadium or elsewhere. In the event that any rent shall
be in arrears at any time, Lessor shall, in addition to all other rights
and remedies, have the right to offset such outstanding arrearage against
the amount of any payments then or thereafter due and payable to Lessee
pursuant to Section 12(b) and/or Section 14 below.
(c) In the event that any Team home game is suspended on a Baseball Day, Lessor
shall not charge Lessee an additional base rental fee for the completion of
such suspended game if such suspended game is continued and completed
immediately before or after the regularly scheduled Team home game on a day
that is otherwise a scheduled Baseball Day hereunder. In the event that
Lessee wishes to continue a suspended game on a day that is not otherwise a
scheduled Baseball Day hereunder, the parties shall negotiate in good faith
an additional rental fee that takes into consideration the fee previously
paid for that portion of the suspended game that has already been played,
and the additional costs to Lessor of operating the Stadium on the
additional date. Lessee acknowledges that the availability of the Stadium
on non-Baseball Days may be constrained by prior commitments to the
Cardinals and/or other events at the Stadium.
(d) Lessee shall have the right, in its reasonable discretion, to postpone
games on account of inclement weather, and Lessor shall have the right, in
its reasonable discretion, to determine that the playing field in the
Stadium is or will be rendered unsafe or unplayable (or that the use of the
playing field under prevailing conditions will cause unreasonable damage to
such field); and in any such instance, any Team home game then scheduled
shall be postponed. In the event that any Team home game is postponed due
to inclement weather or other such cause beyond the control of Lessee,
Lessee may reschedule such postponed game as part of a doubleheader on an
otherwise scheduled Baseball Day hereunder (in which event no additional
base rental shall be payable by Lessee and no refund of base rent shall be
payable by Lessor), or Lessee may reschedule such postponed game for
another available date during the Term (subject to availability of the
Stadium in each instance). Lessee acknowledges that the availability of
the Stadium on non-Baseball Days may be constrained by prior commitments to
the Cardinals and/or other events at the Stadium.
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5. License to Use Stadium.
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(a) In consideration of the rent and other amounts to be received by Lessor
hereunder, Lessor shall permit Lessee to use the Stadium during the Term
for the purpose of the Team playing eighteen (18) to twenty-one (21)
regular season home baseball games, which shall played on those dates set
forth in Schedule A hereto (subject to rescheduling in accordance with
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Section 2 and Section 4 above). Such use shall include the exclusive use,
on game days, of the visitor's clubhouse/locker room (which shall be shared
by the Team and the visiting team for each game), and the right to set up
and operate on Baseball Days (subject to removal at the conclusion of each
Baseball Day) a single unit "Bears Speed Pitch" amusement on a Stadium
walkway or adjacent walkway designated by Lessor (with all revenues from
such amusement belonging to Lessee). It is understood and agreed that the
hours of use of the Stadium by Lessee for such purposes shall commence no
earlier than three and one-half (3 1/2) hours prior to the regularly
scheduled game time (with all games to be scheduled to commence at or about
7:00 p.m. local time on all days other than Sundays, and at or about 1:00
p.m. local time on Sundays, or at such other times as shall be mutually
agreeable to Lessor and Lessee) and shall end no later than one (1) hour
after the actual completion of such game (each, a "Baseball Day"). In the
event that Lessee shall desire to use the Stadium for practice sessions or
otherwise (other than on game days, when Lessee shall have priority use
thereof as set forth herein), it shall discuss in good faith with Lessor
the terms and conditions therefor including, but not limited to, the
payment of a separate rental fee for such uses.
(b) Lessee acknowledges that Lessor is contractually required to accord
scheduling priority to the Cardinals, and that Lessee will be required to
schedule Team games for days (i) on which the Cardinals are not scheduled
to utilize the Stadium, and (ii) which are not one of three (3) open dates
reserved for the Cardinals in each season; and, without limitation of the
foregoing, Lessee may be required to reschedule certain of the game days
set forth in Schedule A to avoid conflict with the Cardinals. In order to
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provide Lessee with information as to potential available dates if any of
the Team games are required to be rescheduled hereunder, Lessor shall,
promptly after same becomes available, provide Lessee with a schedule of
Cardinals home games during the Term; provided, however, that (A) such
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schedule of Cardinals home games is subject to change at any time and from
time to time (and Lessor disclaims any obligation to apprise Lessee of any
such changes), and (B) notwithstanding that such schedule of Cardinals home
games extends beyond the Term, in no event and under no circumstances will
Lessee have any right to reschedule any Team games for any date which is
beyond the expiration of the Term.
6. Skyboxes.
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(a) Notwithstanding the exclusion of skyboxes from the definition of "Stadium"
hereunder, Lessor shall permit Lessee to utilize one (1) skybox in Skylands
Park (being the skybox otherwise reserved by Lessor for its own use) for
use by Lessee and its guests on Baseball Days. Lessee shall be solely
responsible for garbage disposal and other such services for such skybox on
Baseball Days, and shall, at the conclusion of each Baseball Day, leave
such skybox in a clean and orderly condition.
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(b) Anything elsewhere contained in this Agreement to the contrary
notwithstanding, Lessee will permit season skybox subscribers of Lessor to
attend Team games in their respective skyboxes without requirement of
payment of any admission charge. Lessor and Lessee will cooperate with one
another to establish a system for such season skybox subscribers to
identify themselves as such, and thereby gain admission to their skyboxes
for Team games.
7. Maintenance. Lessor shall, at its expense, do any and all prep work,
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maintenance and cleaning necessary in order that the Stadium (including, without
limitation, the playing field, visitors' clubhouse and locker room, and
spectator areas) shall be in a condition, on Baseball Days, for the practicing,
playing and viewing of baseball that is consistent with the conditions then
prevailing at similarly situated baseball facilities; provided, however, that to
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the extent that any maintenance or repairs of Lessor's property (other than
normal wear and tear) are required by reason of the negligence or misconduct of
Lessee or the Team, the cost of such maintenance or repair shall be chargeable
to Lessee and shall be paid by Lessee to Lessor on demand. In addition, except
to the extent that any such clean-up shall be caused by the negligence or
misconduct of Lessee or the Team, Lessor shall be responsible for the clean-up
of the Stadium upon the conclusion of each Baseball Day.
8. Utilities. During each Baseball Day, Lessor shall, at its expense,
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furnish all water, gas, electricity (including all playing field floodlights),
and sanitation services, required in connection with the normal use of the
Stadium.
9. Game Staff and Personnel. Lessee shall provide and pay for all ushers,
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ticket takers, ticket sellers, bat and ball boys and girls, PA announcer,
scoreboard operator, concession and Souvenir hawkers, and any and all other
personnel as are necessary to accommodate the public at the Stadium during the
period when Team games are in progress and for appropriate periods before and
afterwards, all in accordance with standards consistent with those then
prevailing at similarly situated baseball facilities.
10. Security. During each Baseball Day, Lessee shall provide and pay for all
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security personnel necessary to maintain the Stadium, and Lessor's other
property accessible from the Stadium, in a safe and secure condition. Such
personnel shall be sufficient in number to provide a reasonable level of safety
to all spectators and the security of the Stadium and Lessor's other property.
Lessor shall have the right of approval of any security service or personnel
hired by Lessee hereunder, which approval shall not be unreasonably withheld or
delayed.
11. Medical Personnel. During each Baseball Day, Lessee shall provide and
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pay for appropriate paramedic personnel to be present and on duty at the
Stadium.
12. Parking; Traffic Control.
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(a) During each Baseball Day, Lessee shall provide sufficient numbers
of traffic control personnel to adequately direct traffic in the parking lots
and in the vicinity of the Stadium both during and for a reasonable period of
time before and after Team home games at the Stadium. Lessee shall charge
parking fees for Team home games at Skylands Park at the rate
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of $3 per automobile and $10 per bus (which fees are intended to be consistent
with the fees currently charged by Lessor for Cardinals games and certain other
events at Skylands Park). Such parking fees shall belong to Lessee.
(b) Anything elsewhere contained in this Agreement to the contrary
notwithstanding, Lessor reserves the right to sell season parking passes for all
events at Skylands Park, which may include parking for Team games on Baseball
Days. Lessee shall honor all such season parking passes, and shall not request,
charge or collect any parking fees from persons presenting season parking
passes; provided, however, that Lessee shall keep a record of the names and
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dates of all persons presenting such season parking passes for parking at Team
games on Baseball Days, and upon presentment of such list to Lessor within
fifteen (15) days after the conclusion of the Term, Lessor shall reimburse
Lessee for such foregone parking revenues, at the rates provided in Section
12(a) above, within fifteen (15) days after Lessor's receipt of Lessee's list
hereunder (subject to the right of Lessor, during such fifteen (15) day period,
to verify the accuracy of any or all items on Lessee's list).
13. Ticket Sales and Admissions.
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(a) Lessee shall determine the price of, charge and retain any and all of the
revenues from admissions to the Stadium for Team games. Lessee shall be
responsible for, and shall pay when due, all related taxes.
(b) In order to assist Lessee with respect to ticket sales for Team games,
Lessor shall permit Lessee, at its option, either to (i) utilize, at no
additional charge, a small space designated by Lessor in the sporting goods
store adjacent to the Stadium, from which space Lessee may sell tickets to
Team games, or (ii) place a portable ticket stand or trailer in a space
designated by Lessor in the parking lot adjacent to the Stadium which is
reasonably proximate to the Stadium gate, subject to Lessor's right to
approve the design, markings and other attributes of such ticket stand or
trailer (which approval will not be unreasonably withheld or delayed). In
addition, on Baseball Days only, Lessee may, without requirement of payment
of any additional rent therefor, utilize the exhibit hall adjacent to the
Stadium for ticket sales, administrative offices and sales of Lessee's
Souvenirs. If Lessee elects to utilize the exhibit hall hereunder, such
use shall be on the terms and conditions otherwise applicable to the use of
the Stadium hereunder, except that (A) no additional rent shall be payable
for the use of the exhibit hall, and (B) Lessee shall be responsible for
garbage disposal and other routine services for the exhibit hall on
Baseball Days (such that the exhibit hall is maintained in a clean and
orderly condition, with all of Lessee's property removed therefrom upon the
conclusion of each Baseball Day).
14. Concessions. Lessor and/or its concessionaire(s) shall be entitled to
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provide all Concessions at the Stadium throughout the Term, to determine the
types and mix of products and the prices therefor (which shall be generally
consistent with the products and prices available at Cardinals games), and to
receive and retain any and all revenues therefrom, provided that Lessor shall,
within fifteen (15) days after the close of each calendar month during the Term,
(a) provide a written report to Lessee of all Non-Alcoholic Concession revenues
during Team home games at the Stadium during such calendar month, and (b) pay to
Lessee an amount equal to forty-two
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(42%) percent of all Non-Alcoholic Concession receipts collected by Lessor
and/or its concessionaire(s) during Team home games at the Stadium during such
calendar month (subject to offset thereagainst as contemplated by Section 4(b)
above). Lessee acknowledges that Lessor is not legally permitted to share
revenues from Alcoholic Concessions, and the foregoing payments by Lessor to
Lessee are not intended to and shall not constitute a sharing of revenues from
Alcoholic Concessions. Anything elsewhere contained in this Section 14 to the
contrary notwithstanding, to the extent that Lessor shall not receive its share
of gross receipts from its concessionaire(s) in respect of Baseball Days,
Lessor's obligation to remit payments to Lessee hereunder shall be
correspondingly and proportionately reduced and/or deferred until such time as
Lessor receives payment from its concessionaire(s).
15. Souvenirs.
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(a) During each Baseball Day, Lessee shall have the exclusive right to sell
Lessee's Souvenirs at sales tables or booths or by hawkers located within
the Stadium; provided, however, that nothing herein contained shall be
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deemed to restrict or impair in any manner the operation of or goods
offered and sold in the sporting goods store operated by Lessor (including
any successor or assignee) adjacent to the Stadium premises. Lessor shall
permit Lessee the use of reasonable space within the Stadium premises at
which to set up sales tables or booths for the sale of Lessee's Souvenirs.
Lessee shall be responsible for supplying, and shall be entitled to any and
all revenues derived from, the sale of Lessee's Souvenirs. In no event and
under no circumstances shall Lessee sell any Souvenirs other then Lessee's
Souvenirs in or about the Stadium.
(b) In the event that Lessee shall request the ability to sell, or shall
request Lessor to sell, any of Lessee's Souvenirs in the sporting goods
store described in Section 15(a) above, Lessor may, in its sole and
absolute discretion, either (i) refuse to permit any sale of Lessee's
Souvenirs in such sporting goods store, (ii) provide to Lessee, without
additional charge, a small space designated by Lessor in such sporting
goods store, from which Lessee's personnel may sell Lessee's Souvenirs for
Lessee's account, or (iii) Lessor may agree to offer Lessee's Souvenirs on
a consignment basis pursuant to which (A) such Lessee's Souvenirs as Lessor
may agree to offer shall be consigned by Lessee to such sporting goods
store for sale at such prices as shall be designated by Lessee, (B) all
risk of loss in respect of such Lessee's Souvenirs shall remain with Lessee
while such Lessee's Souvenirs are on consignment, and (C) Lessor shall be
entitled to retain, out of the proceeds of sales of such Lessee's
Souvenirs, a commission equal to 25% of such sale proceeds (with the
remaining 75% of such sale proceeds in any month to be remitted to Lessee
within twenty-five (25) days after the close of such calendar month).
16. Advertising.
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(a) Lessee shall have no right to any use of any advertising space within or
about the Stadium or any adjoining facilities, and shall have no right to
share in any advertising revenues derived from plaza avails, outfield
signage or other means or forms of advertising within or about the Stadium
or any of the adjoining facilities; provided, however, that nothing
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herein contained shall be deemed to preclude Lessee form selling
advertising in its own scorecards, game programs, yearbooks or other
printed material which it may sell at Team games at the Stadium, and to
retain all revenues derived from its sales of such advertising.
(b) No advertising, promotional materials or other information or announcements
disseminated or provided by or on behalf of Lessee (in whatever form or
medium, whether written, broadcast, telecast or otherwise) shall (i) make
any mention of or seek to capitalize on the name of Lessor or Skylands
Park, other than to indicate to potential patrons, radio listeners and
persons having business dealings with Lessee that particular Team games are
being or will be played at Skylands Park, or (ii) refer to or state,
suggest or imply that the Team is a "Minor League" baseball team or in any
way affiliated with Major League baseball or any Major League baseball
team, or that the League is a "Minor League" baseball league or in any way
affiliated with Major League baseball.
(c) Lessee shall have the right to schedule and conduct on-field promotional
events on Baseball Days which may include, in Lessee's discretion, the use
of fireworks, promotional giveaways and other features as may be determined
by Lessee, provided that (i) Lessee shall use reasonable discretion and
precaution to avoid unusual wear and tear to the playing field in the
Stadium and any other affected elements of the Stadium, and (ii) any use of
fireworks or other regulated or hazardous materials shall be strictly in
accordance with applicable laws and permit requirements (for which Lessee
shall have sole responsibility).
17. Broadcast Rights. Lessor shall provide and maintain suitable radio,
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television, and press facilities at the Stadium. Lessee shall have the exclusive
right to contract and arrange for all radio and television broadcast rights for
the Team's game day activities at the Stadium, and to retain any and all
revenues therefrom. Other than providing on Baseball Days the facilities within
the Stadium from which broadcasts may be made, Lessor shall have no liability or
obligation hereunder with respect any broadcasting of Team games; and without
limitation of the foregoing, Lessee shall be solely responsible for all signal
feeds, line charges, broadcast connections, network fees and other costs and
expenses relating to any broadcast of Team games.
18. Alterations. Lessee shall not make any alterations, changes or
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improvements to the Stadium, and shall not suffer or permit any mechanic's or
materialmen's lien to be placed on the Stadium or the underlying land by reason
of any action taken by or at the behest of Lessee. Lessor shall at all times
have the right to make alterations and/or changes to the Stadium and related
facilities, so long as the Stadium remains usable for the conduct of the Team's
home games in accordance with the standards provided herein.
19. Insurance. Throughout the Term, (a) Lessor shall maintain comprehensive
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general liability and property and casualty insurance in such amounts as Lessor
may determine from time to time, and (b) Lessee shall maintain comprehensive
public liability and indemnity insurance in an amount not less than $1,000,000
in the aggregate, which policy or policies shall name Lessor as an additional
insured and shall not be cancelable as to Lessor without thirty (30) days' prior
written notice to Lessor. Lessee shall provide a certificate or certificates of
such
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insurance to Lessor upon execution and delivery of this Agreement, and
thereafter at any time and from time to time upon request therefor.
20. Compliance With Law. Each party hereby agrees to comply with all laws,
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ordinances, rules or regulations of any federal, state, county, city, township,
municipality or other governmental authority in connection with the exercise of
the rights and performance of the obligations hereunder. Lessor shall comply
with all laws, ordinances, rules or regulations applicable to maintaining the
Stadium facilities. Lessee shall comply with all laws, ordinances, rules or
regulations applicable to its use and occupancy of the Stadium facilities.
21. Representations and Warranties.
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(a) Lessor hereby represents and warrants that:
(i) it has all necessary rights, licenses and authorizations to carry out the
terms of this Agreement;
(ii) it has full power and authority to enter into this Agreement and to make
and perform its covenants, representations and undertakings contained
herein; and
(iii) the individual who has signed this Agreement on behalf of Lessor has
been duly authorized to do so.
(b) Lessee hereby represents and warrants that:
(i) it has all the necessary rights, licenses, and authorizations to carry out
the terms of this Agreement;
(ii) it has full power and authority to enter into this Agreement and to make
and perform its covenants, representations and undertakings contained
herein; and
(iii) the individual who has signed this Agreement on behalf of Lessee has
been duly authorized to do so.
22. Indemnification. Each party shall defend, indemnify and hold harmless
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the other party and its officers, directors, employees and agents from and
against any and all costs, claims, damages, losses, liabilities and expenses
(including but not limited to reasonable attorneys' fees) arising out of or
related to any breach or non-performance by the indemnifying party of any of its
obligations under this Agreement.
23. Force Majeure. Neither party shall be liable to the other because of any
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failure to perform under this Agreement to the extent that such failure is
caused by fire, earthquake, flood or any other acts of God, governmental
regulations or restrictions, governmental taking, vandalism, strike, labor
stoppage or any other cause or condition, whether similar or dissimilar to any
of the foregoing, beyond the reasonable control of such party. If Lessor fails
or refuses to rehabilitate or rebuild the Stadium to usable condition within a
reasonable time after damage or destruction by any event of the type described
in this Section 23, then Lessee may terminate this
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Agreement, without any penalty or damages whatsoever, by giving fifteen (15)
days' written notice to Lessor. Any termination under this Section 23 shall be
without prejudice to the outstanding obligations of the parties accrued
hereunder prior to the effective date of termination.
24. Eminent Domain. In the event of any governmental taking of the Stadium
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or any portion thereof, or of the land (or any portion thereof) on which the
Stadium is situated, any and all condemnation awards and other proceeds
therefrom shall, as between Lessor and Lessee, be the sole property of Lessor.
25. Relationship of Parties. Nothing herein contained shall be deemed to
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create any relationship of joint venturers, partners, principal and agent, or
otherwise as between the parties. Neither party shall have any right, or shall
purport in any manner, to create any obligation on behalf of the other party.
26. Notices. Any notices, requests, demands or other communications required
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or permitted under this Agreement shall be in writing and shall be deemed to
have been given when delivered personally, two (2) business days after being
deposited with a recognized overnight courier service with all charges prepaid
or billed to the sender, or three (3) business days after being mailed by
certified mail, return receipt requested, addressed to the party being notified
at the address of such party first set forth above, or at such other address as
such party may hereafter and theretofore have designated by notice; provided,
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however, that any notice of change of address shall not be effective until its
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receipt by the party to be charged therewith.
27. General.
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(a) Neither this Agreement nor any of the terms or conditions hereof may be
waived, amended or modified except by means of a written instrument duly
executed by the party to be charged therewith. Any waiver or amendment
shall only be applicable in the specific instance, and shall not constitute
or be construed as a waiver or amendment in any other or subsequent
instance. No failure or delay on the part of either party in respect of
any enforcement of obligations hereunder shall in any manner affect such
party's right to seek or effect enforcement at any other time or in respect
of any other required performance.
(b) Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the express prior written consent of the
other party.
(c) The captions and paragraph headings used in this Agreement are for
convenience of reference only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions hereof.
(d) This Agreement, and all matters or disputes relating to the validity,
construction, performance or enforcement hereof, shall be governed by and
construed in accordance with the laws of the State of New Jersey.
(e) This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Neither party may assign
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<PAGE>
any of its rights or obligations hereunder without the prior written
consent of the other party (which consent may be withheld in such other
party's sole and absolute discretion).
(f) This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original hereof, but all of which together shall
constitute one and the same instrument.
(g) In the event of any dispute under or arising out of this Agreement, the
prevailing party in such dispute shall be entitled to recover from the non-
prevailing party or parties, in addition to any damages and/or other relief
that may be awarded, its reasonable costs and expenses (including
reasonable attorneys' fees) incurred in connection with prosecuting or
defending the subject dispute.
(h) This Agreement constitutes the sole and entire agreement and understanding
between the parties hereto as to the subject matter hereof, and supersedes
all prior discussions, agreements and understandings of every kind and
nature between them as to such subject matter.
(i) This Agreement is intended for the sole and exclusive benefit of the
parties hereto and their respective successors and permitted assigns, and
no other person or entity shall have any right to rely on this Agreement or
to claim or derive any benefit herefrom absent the express written consent
of the party to be charged with such reliance or benefit.
(j) If any provision of this Agreement is held invalid or unenforceable, either
in its entirety or by virtue of its scope or application to given
circumstances, such provision shall thereupon be deemed modified only to
the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may
require; and this Agreement shall be construed and enforced as if such
provision had been included herein as so modified in scope or application,
or had not been included herein, as the case may be.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
the date first set forth above.
MILLENNIUM SPORTS MANAGEMENT, INC.
By: /s/
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Print Name:
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Title:
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NEWARK BEARS, INC.
By: /s/
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Print Name:
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Title:
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