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STADIUM LEASE
THIS STADIUM LEASE (the
"Stadium Lease") is made as of the _____ day of July 1998, by
and between ERIE COUNTY STADIUM CORPORATION, a New York
business corporation and wholly-owned subsidiary of the New York
State Urban Development Corporation d/b/a the Empire State
Development Corporation, a public benefit corporation having an
office and principal place of business at 633 Third Avenue, New
York, New York 10017-6754 (the "ECSC") and BUFFALO
BILLS, INC., a New York business corporation having an office
and principal place of business at One Bills Drive, Orchard Park,
New York 14127 (the "Bills").
R E C I T A L S :
WHEREAS, the County of Erie (the
"County") is the owner of an approximately
135 acre parcel of real property situated in the Town of
Orchard Park, New York, which parcel is improved by a football
stadium and related amenities (the "Stadium Complex");
and
WHEREAS, pursuant to its rights
as a National Football League franchisee, the Bills are the
owners of the "Buffalo Bills" football team (the
"Team"); and
WHEREAS, pursuant to a certain
Agreement of Lease, dated as of October 15, 1971, between the
County and the Bills' predecessor in interest (as amended, the
"Original Lease"), the Team has used and occupied the
County's football stadium for its home games since 1973; and
WHEREAS, the term of the Original
Lease expires on July 31, 1998; and
WHEREAS, the County, New York
State (the "State") and the Bills have determined that
the Team encourages and fosters economic development and
prosperity for the citizens of Erie County and Western New York,
enhances the image of Erie County and Western New York and
provides recreational and other opportunities for the citizens of
Erie County and Western New York; and
WHEREAS, the citizens of Western
New York have supported and enjoyed the Team since its inception
such that the Team has become an integral part of the Western New
York community; and
WHEREAS, on January 12,
1998, the State, the County and the Bills entered into a
Memorandum of Understanding (the "MOU") setting forth
in principle certain actions to be undertaken by each of the
parties to enable the Team to continue to play its home games at
the County's football stadium through July 31, 2013; and
WHEREAS, pursuant to Chapter
_______ of the 1998 Session Laws of New York (the
"Authorizing Legislation"), the State has found and
declared, among other things, that the refurbishment, renovation,
improvement, operation, maintenance, repair and financing of the
Stadium Complex constitute a public and governmental purpose for
the benefit of the citizens of the County and the State, and has
specifically authorized the implementation of the various actions
contained in the MOU, including, without limitation, the
execution and delivery of this Stadium Lease and certain other
documents relating to the Stadium Complex; and
WHEREAS, certain of the actions
contained in the MOU relate to the refurbishing, renovation and
improvement of the Stadium Complex at a cost of approximately
$63.25 million; and
WHEREAS, under the New York State
Urban Development Act, Chapter 174 of the 1968 Laws of New York,
as amended (the "Act"), the New York State Urban
Development Corporation d/b/a the Empire State Development
Corporation (the "ESDC") is empowered to lease real
property from municipalities and to rehabilitate and improve such
real property; and
WHEREAS, pursuant to
Section 12 of the Act, the ESDC is empowered to create
subsidiary corporations and to confer upon such subsidiary
corporations all "privileges, immunities, tax exemptions and
other exemptions" which the ESDC enjoys, including, without
limitation, such privileges, immunities, tax exemptions and other
exemptions which enure to the ESDC by virtue of the ESDC's status
as a public benefit corporation; and
WHEREAS, on February 6,
1998, the ESDC filed a Certificate of Incorporation with the New
York Secretary of State forming the ECSC; and
WHEREAS, paragraph seven of such
Certificate of Incorporation provides that the ECSC shall enjoy
all of the "privileges, immunities, tax exemptions and other
exemptions" of the ESDC; and
WHEREAS, in the Authorizing
Legislation, the State has confirmed that the ECSC is a public
benefit corporation; and
WHEREAS, on February 27,
1998, the ESDC and the Bills entered into a Design Funding
Agreement pursuant to which the Bills have agreed to undertake
certain preliminary design and construction work related to the
refurbishing, renovation and improvement of the Stadium Complex;
and
WHEREAS, to implement the
refurbishing, renovation and improvement of the Stadium Complex,
the ECSC, the County and the Bills entered into a certain
Construction Coordinating Agreement dated as of July ___,
1998 (the "Construction Coordinating Agreement"); and
WHEREAS, pursuant to the terms of
the Construction Coordinating Agreement, the ECSC has agreed to
contract and pay for, and to oversee such refurbishing,
renovation and improvement; and
WHEREAS, to facilitate such
refurbishing, renovation and improvement, the County has leased
the Stadium Complex to the ECSC pursuant to a certain Master
Lease, dated as of July __, 1998, between the County, as
lessor, and the ECSC, as lessee; and
WHEREAS, the ECSC has agreed to
simultaneously sublease the Stadium Complex to the Bills on the
terms and conditions set forth in this Stadium Lease; and
WHEREAS, in its capacity as
"lead agency," the County has issued, on its own behalf
and on behalf of all other involved agencies, a "negative
declaration" under the New York State Environmental Quality
Review Act covering the refurbishing, renovation and improvement
of the Stadium Complex.
NOW, THEREFORE, for one dollar
($1.00) and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the ECSC and the
Bills agree as follows:
ARTICLE 1 BASIC LEASE INFORMATION
1.1 Definitions. As used in this
Stadium Lease, the following terms shall have the meanings
ascribed thereto:
(a) Access Roads:
All paved roads and driveways now or hereafter
situated on the Land.
(b) Administration
Building: The approximately 60,000 square
foot, four-story building situated on the Land
immediately adjacent to the Stadium and presently
housing the Team's administrative offices,
portions of the County Facilities, certain of the
Luxury Suites and a concession commissary.
(c) Advertising
Rights: Any advertising or marketing of any
kind on or in the Stadium Complex including, but
not limited to, Scoreboard announcements,
Jumbotron announcements, Signage, ticket
advertising, Playing Field advertising, sponsor
advertising on concession or "give
away" merchandise, programs, year books and
all other print and display advertising
distributed at the Stadium Complex.
(d) Affiliate:
(i) As to any Person other than a
Governmental Authority, any other Person which
directly or indirectly controls, or is under
common control with, or is controlled by, such
Person, and (ii) as to any Governmental
Authority, any agency, department, board or
authority thereof. As used in this definition,
"control" (including, with its
correlative meanings, "controlled by"
and "under common control with") shall
mean possession, directly or indirectly, of power
to direct or cause the direction of management or
policies (whether through ownership of securities
or partnership or other ownership interests, by
contract or otherwise).
(e) Anniversary Date:
Each anniversary of the Commencement Date
occurring during the Term.
(f) Applicable Law:
Any applicable constitutional provision, treaty,
statute, rule, regulation, ordinance, order,
directive, code, interpretation, judgment,
decree, injunction, writ, determination, award,
permit, license, authorization, directive,
requirement or decision of or agreement with or
by a Governmental Authority now or hereafter in
effect.
(g) Assessments:
All special district charges and special
assessments of whatever kind and nature,
including water and sewer rents levied, imposed,
assessed or fixed on or against the Buildings and
the Land or arising from the use, occupancy or
possession thereof during the Term.
(h) Bills: Buffalo Bills, Inc., a
New York business corporation.
(i) Bills' Address:
400 Renaissance Center, Suite 2140
Detroit, Michigan 48243
Attention: Jeffrey C. Littmann,Treasurer
Telephone: (313) 259-9415
Telecopier: (313) 259-9101
With a copy at the same time and in the
same manner to:
Dykema Gossett
400 Renaissance Center
Detroit, Michigan 48243-1668
Attention: Lloyd A. Semple, Esq.
Michael A. Lesha, Esq.
Telephone: (313) 568-5392
Telecopier: (313) 568-6701
(j) Bills' Event:
Any public gathering at the Stadium which is
neither a Game nor a Civic Event.
(k) Bills'
Improvements: The additions, alterations and
improvements presently located at or affixed to
the Stadium Complex which are described in Exhibit A
attached to the Stadium Lease and such other
additions, alterations or improvements to the
Stadium Complex as may be undertaken by the Bills
at the Bills' sole cost and expense in accordance
with the terms and conditions of the Stadium
Lease.
(l) Bills' Insurance
Policy: Any policy of insurance maintained by
the Bills pursuant to Article 18 of the
Stadium Lease.
(m) Books and Records:
Those portions of the Bills' business books and
records pertaining to Game Day Expenses,
Operating Expenses, Marketing Expenses, Licenses
Fees and Net Ticket Revenues (which shall
include, but not be limited to, all information
supplied to the Bills by the NFL with respect to
NFL Average Net Ticket Revenue).
(n) Broadcast Rights:
All radio and television broadcasting, film or
tape reproductions, closed circuit, cable or pay
television or radio rights and similar rights by
whatever means or process, now existing or
hereafter developed, for preserving,
transmitting, disseminating or reproducing for
hearing or viewing events at the Stadium Complex.
(o) Budget: The
term "Budget" shall have the meaning
ascribed thereto in the Construction Coordinating
Agreement.
(p) Buildings:
The Stadium, the Administration Building, the
Field House, the Training Center and any other
building or enclosed structure now or hereafter
situated on the Land.
(q) Capital
Improvement: (i) Any Structural Repair; (ii)
any single addition, alteration, demolition,
improvement or refurbishing of or to the Stadium
Complex or any portion thereof the cost or
expense of which is classified as a capital
expense by GAAP; (iii) any single addition,
alteration, demolition, improvement or
refurbishing of or to the Stadium Complex or any
portion thereof the cost or expense of which is
$10,000 or more; or (iv) any series of
additions, alterations, demolitions, improvements
or refurbishings of or to the Stadium Complex or
any portion thereof that (1) under ordinary and
customary business practices would be clearly
viewed as being a single project, (2) under
ordinary and customary business practices would
be effectuated by entering into a single contract
with a contractor or other applicable Person, and
(3) has a cost of $10,000 or more.
(r) Capital
Improvement Allowance: (i) During the
first Lease Year, the Minimum Capital Improvement
Allowance; and (ii) during each subsequent
Lease Year, such other amount as may be
calculated in accordance with Section 10.3
of the Stadium Lease.
(s) Capital
Improvement Expense: Any expense paid or
incurred in making a Capital Improvement.
(t) Casualty: Any
Major Casualty or Minor Casualty.
(u) Casualty
Insurance Premium Cap: The rate of seven and
one-half cents ($.075) per one hundred dollars
($100) of insurance coverage.
(v) Civic Event:
Any event or public gathering at the Stadium
Complex sponsored by either the County or the
ECSC pursuant to Section 2.3 of the
Stadium Lease, the primary purpose of which is
the promotion of civic, community, governmental
or charitable purposes (as opposed to pecuniary
gain), and which does not compete with the Bills'
use of the Stadium Complex as a venue for
professional football contests and musical
concerts and festivals.
(w) Civic Event
Expenses: The actual, incremental
out-of-pocket expenses incurred by the Bills in
their capacity as operator of the Stadium Complex
with respect to any Civic Event, including,
without limitation, the cost of repairing any
damage to any component of the Stadium Complex
arising out of a Civic Event and not covered by
any applicable insurance policy.
(x) Club Level Seats:
Any spectator's seat within the "club
level" of the Stadium (other than a seat
within a Luxury Suite) for which a License Fee is
charged by the Bills.
(y) Commencement Date:
August 1, 1998.
(z) Construction
Coordinating Agreement: The Construction
Coordinating Agreement, dated as of
July ____, 1998, by and among the ECSC, the
County and the Bills, together with all renewals,
replacements, modifications and amendments
thereof.
(aa) County: The
County of Erie, a New York municipal corporation.
(bb) County's Address:
Department of Public Works
95 Franklin Street
Buffalo, New York 14202
Attention: Commissioner of Public Works
Telephone: (716) 858-8306
Telecopier: (716) 858-8303
with a copy at the same time and in the same manner to:
Erie County Attorney's Office
69 Delaware Avenue, Suite 300
Buffalo, New York 14202
Attention: County Attorney
Telephone: (716) 858-2200
Telecopier: (716) 858-2281
(cc) County
Facilities: The approximately three hundred
fourteen (314) square foot office located in the
"tunnel" level of the Administration
Building presently used to house the County's
maintenance office.
(dd) Default Interest
Rate: A rate per annum that is the lesser of
(a) four percent above the interest rate
charged from time to time by Manufacturers and
Traders Trust Company or its successor as its
prime commercial or similar reference rate, or
(b) the maximum nonusurious rate permitted
by Applicable Law.
(ee) Design Funding
Agreement: The Design Funding Agreement,
dated February 27, 1998, between the ESDC
and the Bills, together with all renewals,
replacements, modifications and amendments
thereof.
(ff) Development
Study: The Development Study & Report
prepared by DiDonato Associates, P.E., P.C., et
al. dated February, 1997.
(gg) ECSC: Erie
County Stadium Corporation, a New York business
corporation and wholly-owned subsidiary of the
ESDC.
(hh) ECSC's Address:
c/o Empire State Development Corp.
633 Third Avenue
New York, New York 10017-6754
Attention: General Counsel
Telephone: (212) 803-3750
Telecopier: (212) 803-3775
(ii) ECSC Project
Costs: The term "ECSC Project
Costs" shall have the meaning ascribed
thereto in the Construction Coordinating
Agreement.
(jj) Environment:
Water or water vapor, land surface or subsurface,
air, fish, wildlife, biota and all other natural
resources.
(kk) Environmental
Claims: Any notice of violation, notice of
potential or actual responsibility or liability,
or written claim, suit, action, demand, directive
or order (including those for contribution and/or
indemnity) by any Governmental Authority or other
Person for any damage (including, but not limited
to, personal injury, tangible or intangible
property damage, natural resource damage,
indirect or consequential damages, investigative
costs, removal, response or remediation costs,
nuisance, pollution, contamination or other
adverse effects on the environment or for fines,
penalties or restrictions or conditions on
existing environmental permits or licenses)
resulting from or relating to (i) the
presence of, a Release or threatened Release into
the environment of, or exposure to, any Hazardous
Substance, (ii) the generation, manufacture,
processing, distribution, use, handling,
transportation, storage, treatment or disposal of
any Hazardous Substances, (iii) the
violation, or alleged violation, of any
Environmental Laws or (iv) the
non-compliance or alleged non-compliance with any
Environmental Laws.
(ll) Environmental
Laws: Any applicable, or relevant and
appropriate, statutes, ordinances, by-laws,
directives or other written, published laws, any
written, published rules or regulations, orders,
and any licenses, permits, orders, judgments,
notices or other requirements issued pursuant
thereto, enacted, promulgated or issued by any
Governmental Authority, now or hereafter in
effect, relating to pollution or protection of
public health or the environment from Hazardous
Substances (including, but not limited to, any
air, surface water, groundwater, land surface or
sub-surface strata, whether outside, inside or
under any structure), or to the identification,
reporting, generation, manufacture, processing,
distribution, use, handling, treatment, storage,
disposal, transporting, presence, Release or
threatened Release, of any Hazardous Substances.
Without limiting the generality of the foregoing,
Environmental Laws shall include the
Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as
amended, the Toxic Substances Control Act, as
amended, the Hazardous Materials Transportation
Act, as amended, the Resource Conservation and
Recovery Act, as amended, the Clean Water Act, as
amended, the Safe Drinking Water Act, as amended,
the Clean Air Act, as amended, and all analogous
laws enacted, promulgated or lawfully issued by
any Governmental Authority.
(mm) ESDC: The
New York State Urban Development Corporation
d/b/a the Empire State Development Corporation, a
New York public benefit corporation having an
office and principal place of business at
633 Third Avenue, New York, New York
10017-6754.
(nn) Fall Out Amount:
The aggregate amount during Lease Years two
through six by which License Fee Payment Defaults
exceed five million nine hundred-thousand dollars
($5,900,000).
(oo) Field House:
The approximately 98,000 square foot field house
situated on the Land commonly known as the
"Ralph C. Wilson, Jr. Field House"
presently housing the Team's indoor practice
facility.
(pp) Force Majeure:
Any of the following events: strikes, lockouts,
labor disputes, embargoes, flood, earthquake,
storm, dust storm, lightning, fire, epidemic,
acts of God, war, national emergency, civil
disturbance or disobedience, riot, sabotage,
terrorism, threats of sabotage or terrorism,
restraint by court order or order of public
authority, and similar occurrences beyond the
reasonable control of the party in question
(financial inability excepted), that make
compliance with any of its material obligations
under any of the Stadium Agreements in a timely
manner impracticable or impossible.
(qq) Franchise:
The franchise granted by the NFL to the Bills
pursuant to which the Bills own and operate an
NFL Team, as evidenced by the "Franchise
Certificate of Membership" issued by the
NFL.
(rr) Franchise
Maintenance Covenants: The covenants of the
Bills set forth in Sections 6.1, 6.3 and
6.4 of the Stadium Lease.
(ss) GAAP: With
respect to all accounting matters and issues,
generally accepted accounting principles in
effect from time to time.
(tt) Game: Any
Home Game or Home Playoff Game.
(uu) Game Day Expense
Portion: Thirty-seven percent (37%) of the
Operating/Game Day Expense Reimbursement for any
Lease Year.
(vv) Game Day
Expenses: Any expense paid or incurred on the
day of any Game for security, ushers, ticket
takers, cleaning, garbage removal and emergency
medical services at the Stadium Complex.
(ww) Governmental
Authority: Any federal, state or local
government, or any political subdivision of any
of the foregoing, or any court, agency or other
entity, body, organization or group, exercising
any executive, legislative, judicial,
quasi-judicial, regulatory or administrative
function of government.
(xx) Hazardous
Substances: Any pollutants, contaminants,
substances, hazardous and/or toxic chemicals,
carcinogens, wastes, and any ignitable,
corrosive, reactive, toxic or other hazardous
substances or materials, whether solids, liquids
or gases (including, but not limited to,
petroleum and its derivatives, PCBs, asbestos,
radioactive materials, waste waters, sludge, slag
and any other substance, material or waste), as
defined in or regulated by any Environmental Laws
or as determined by any Governmental Authority.
(yy) Home Game:
Each Pre-Season Game and Regular Season Game
between the Team and any other NFL Team, which is
designated by the NFL in its official schedule as
a "home game" for the Team.
(zz) Home Playoff
Game: Each Post-Season Game between the Team
and any other NFL Team, which is designated by
the NFL in its official post season schedule as a
"home game" for the Team.
(aaa) Initial ECSC
Investment: The aggregate of the actual
amounts paid by the ECSC (or by the ESDC on
behalf of the ECSC) pursuant to (i) the Design
Funding Agreement and the Construction
Coordinating Agreement in conjunction with design
and construction of the Project, (ii) the Master
Lease and the Stadium Lease in satisfaction
and/or repayment of the additional rent
obligations of the Bills pursuant to the terms of
the Original Lease, and (iii) the Stadium Lease
for Working Capital Assistance during the first
six Lease Years.
(bbb) Jumbotron:
The SONY Jumbotron screen, front end video system
and scoreboard, matrix and advertising display
system presently situated at the Stadium,
together with any modifications, upgrades and
replacements thereof.
(ccc) Land: The
land described on Exhibit B to the Stadium
Lease.
(ddd) Lease Date:
July , 1998.
(eee) Lease Year:
The twelve (12) month period beginning on the
Commencement Date and ending on the last day of
the twelfth (12th) successive calendar month, and
each succeeding twelve (12) month period
thereafter during the Term.
(fff) License
Agreement: A written agreement, in the form
required by Sections 4.8 and 4.9
of the Stadium Lease, between the Bills and any
Licensee for the use of a Club Level Seat or
Luxury Suite.
(ggg) License Fee:
Any premium or license fee charged by the Bills
for the use of a Club Level Seat or Luxury Suite
in excess of the stated admission ticket price.
(hhh) License Fee
Deficit: The amount in any Lease Year by
which the Qualifying License Fee Amount exceeds
the total of all License Fees collected by the
Bills during such Lease Year which is
attributable to License Fee Payment Defaults.
(iii) License Fee
Payment Default: The default by any Licensee
in the payment when due of all or any portion of
the License Fee payable by such Licensee pursuant
to the terms of its License Agreement following
the exercise by the Bills of commercially
reasonable collection efforts, which efforts need
not, however, require the commencement of legal
proceedings.
(jjj) Licensee:
Any Person who contracts with the Bills for the
use of a Club Level Seat or Luxury Suite.
(kkk) Lien: Any
lien, statutory lien, pledge, condemnation award,
claim, restriction, charge, security interest,
mortgage, assignment, title defect, lease,
tenancy, license, covenant, right of way,
easement, encroachment, right of refusal or
encumbrance of any nature whatsoever.
(lll) Losses: All
losses, liabilities, deficiencies, damages
(including without limitation consequential
damages), fines, penalties, claims, costs and
expenses (including, without limitation all
fines, penalties and other amounts paid pursuant
to a judgment, compromise or settlement), court
costs and reasonable legal and accounting fees
and disbursements.
(mmm) Luxury Suites:
The enclosed suites at the Stadium and in the
Administration Building, consisting of ninety
(90) existing suites and seventy-four (74) suites
to be constructed as described in the Development
Study.
(nnn) Major Casualty:
Any damage to the Stadium Complex caused by fire,
storm, earthquake, tornado, flood, natural
disaster or other sudden, unexpected or unusual
occurrence which renders ten percent (10%) or
more of the total seating capacity of the Stadium
unusable for a period in excess of thirty (30)
days.
(ooo) Marketing
Allowance: Provided the Bills shall have paid
or incurred at least $750,000 in Marketing
Expenses between August 1, 1997 and
December 1, 1998, the sum of $375,000 and
sixty-seven percent (67%) of the amount by which
the Marketing Expenses paid or incurred by the
Bills during such period exceeds $750,000.
(ppp) Marketing
Campaign: The marketing campaign to be
carried out by ECSC and the Bills prior to
December 1, 1998, the object of which shall be to
secure binding License Agreements for terms of
not less than five (5) years each, which will
produce aggregate License Fees for the 1999 NFL
Season equal to or greater than the Qualifying
License Fee Amount.
(qqq) Marketing
Expenses: All actual, incremental
out-of-pocket expenses paid or incurred by the
Bills for the marketing of Club Level Seats and
Luxury Suites.
(rrr) Master Lease:
The Master Lease, dated as of July ___,
1998, by and between the County, as lessor, and
the ECSC, as lessee, pursuant to which the ECSC
leases the Stadium Complex, together with all
renewals, replacements, modifications and
amendments thereof.
(sss) Master Lease
Expiration Date: July 31, 2013, or such
earlier date provided for in the Master Lease
upon which the Master Lease Term shall expire.
(ttt) Master Lease
Term: The term of the Master Lease, beginning
on the Commencement Date and ending on the Master
Lease Expiration Date.
(uuu) Material
Sublessee Default: (i) Any Sublessee
Default arising out of the breach of a Franchise
Maintenance Covenant; (ii) any single
Sublessee Default arising out of the failure by
the Bills to pay any sum in excess of one-hundred
thousand dollars ($100,000); (iii) any
series of Sublessee Defaults which arise out of
the failure by the Bills to pay in the aggregate
any sum in excess of one-hundred thousand dollars
($100,000); or (iv) any other Sublessee
Default which remains outstanding for a period in
excess of one hundred and fifty (150) days
(unless said Sublessee Default cannot be cured
within said one-hundred and fifty (150) day
period, in which case said period shall be
extended as long as the Bills are diligently
pursuing a cure).
(vvv) Material
Sublessor Default: (i) Any Sublessor
Default arising out of the failure by the County
to restore the Stadium Complex in accordance with
Article 12 or 13 of the Stadium
Lease; (ii) any single Sublessor Default
arising out of the failure by the County and/or
the ECSC, as the case may be, to pay any sum due
hereunder in excess of one million dollars
($1,000,000); or (iii) any series of
Sublessor Defaults arising out of the failure by
the County and/or the ECSC, as the case may be,
to pay in the aggregate any sum in excess of one
million dollars ($1,000,000); or (iv) any
Sublessor Default that results in loss or damage
to the Bills in excess of one million dollars
($1,000,000).
(www) Minimum Capital
Improvement Allowance: $2,100,000.
(xxx) Minor Casualty:
Any damage to the Stadium Complex caused by fire,
storm, earthquake, tornado, flood, natural
disaster or other sudden, unexpected or unusual
occurrence which does not render ten percent
(10%) or more of the total seating capacity of
the Stadium unusable for a period in excess of
thirty (30) days.
(yyy) Net Ticket
Deficit: The amount by which NFL Average Net
Ticket Revenue exceeds Net Ticket Revenue in any
Lease Year.
(zzz) Net Ticket
Revenue: For any Lease Year, the gross
consideration received by the Bills (including
the value of any complimentary tickets,
promotional consideration and in-kind services to
the extent such items are included under the NFL
Rules and Regulations in calculating the visiting
team's share of ticket revenue) for admission
tickets to Home Games, exclusive of any
applicable taxes, License Fees and NFL Approved
Surcharges.
(aaaa) NFL: The
National Football League, an unincorporated,
nonprofit association, having an office and
principal place of business at 280 Park
Avenue, New York, New York 10017.
(bbbb) NFL Approved
Surcharges: Any special ticket handling or
ticket service charges that are allowed as a
deduction under the NFL Rules and Regulations as
of the Lease Date in calculating the visiting
team's share of ticket revenue, and any special
ticket handling or ticket service charges imposed
after the Lease Date that are allowed as a
deduction under the NFL Rules and Regulations in
calculating the visiting team's share of ticket
revenue and which are not preferential to any one
NFL Team.
(cccc) NFL Average
Net Ticket Revenue: For any NFL Season, the
average per team gross consideration received by
all NFL teams (including the value of any
complimentary tickets, promotional consideration
and in-kind services to the extent such items are
included under the NFL Rules and Regulations in
calculating the visiting team's share of ticket
revenue) for admission tickets to
"home" Pre-season Games and
"home" Regular Season Games, exclusive
of any applicable taxes, club seat and luxury
suite premiums and license fees and NFL Approved
Surcharges.
(dddd) NFL Rules and
Regulations: The constitution, bylaws, rules,
regulations, policies and practices of the NFL in
effect from time to time, relevant excerpts of
which are attached to the Stadium Lease as Exhibit C.
(eeee) NFL Season:
The period of time beginning on the day on which
the first Pre-Season Game is played through the
date on which the last Post-Season Game is played
in a given Lease Year, encompassing, therefore,
all Pre-Season Games, Regular Season Games and
Post-Season Games in a given Lease Year.
(ffff) NFL Team:
A professional football team operated pursuant to
a franchise granted by the NFL.
(gggg) Operating
Expenses: (i) All wages, salary and
employer-paid taxes, insurance and employee
benefits for Stadium management and maintenance
personnel; (ii) all out-of-pocket costs that are
not included in clause (i) above for Stadium
Complex maintenance and management (including,
but not limited to, all expenses incurred for
Scoreboard maintenance and repair, general
maintenance and repair, cleaning and toiletry
supplies and grounds and park maintenance); (iii)
all liability insurance covering the Stadium
Complex; and (iv) all charges for water, natural
gas and electricity consumed at the Stadium
Complex; but shall not under any circumstances,
be construed to include any Civic Event Expenses,
any Game Day Expenses, any Capital Improvement
Expenses and any wages, salary or employer-paid
taxes, insurance and employee benefits for
employees who are not directly and principally
responsible for the operation, repair,
maintenance or control of the Stadium Complex (in
particular, but not necessarily limited to,
players, coaches, trainers and other football
operations personnel).
(hhhh) Operating/Game
Day Expense Reimbursement: The amount payable
by the ECSC to the Bills pursuant to Section 9.4
of the Stadium Lease during each Lease Year to
reimburse the Bills for Operating Expenses and
Game Day Expenses paid or incurred by the Bills
during such Lease Year.
(iiii) Operating/Game
Day Expense Reimbursement Cap: $2,915,000
[need to add amount for insurance of Game Day
Expenses] or such higher amount as may be
calculated in accordance with Section 9.5
of the Stadium Lease.
(jjjj) Operating/Game
Day Expense Reimbursement Date:
August 1, November 1, February 1
and May 1 of any Lease Year.
(kkkk) Original Lease:
The Agreement of Lease, dated as of
October 15, 1971, between the County, as
landlord, and the Bills' predecessor in interest,
as tenant, as amended.
(llll) Parking Areas:
All parking lots now or hereafter situated on the
Land.
(mmmm) Party: Any
one of the County, the ECSC or the Bills.
(nnnn) Permitted
Assignee: Any Person which (i) succeeds to
the ownership of all or substantially all of the
assets of the Bills, including in any event the
Franchise, (ii) assumes in writing, by
documentation reasonably acceptable to the County
and the ECSC, all of the obligations of the Bills
under the Stadium Agreements, and (iii) is
approved by the NFL in accordance with the NFL
Rules and Regulations as the owner of the
Franchise.
(oooo) Person:
Any Governmental Authority, individual,
association, joint venture, partnership,
corporation, limited liability company, trust or
other entity.
(pppp) Playing Field:
The area within the Stadium designed for the
playing of NFL football games, including the
delineated field of play, all sideline areas and
all other surfaces immediately surrounding the
delineated field of play.
(qqqq) Players'
Strike: Any players "lockout"
sanctioned or otherwise approved by the NFL or a
majority of the holders of NFL franchises, or
strike or other work stoppage sanctioned or
otherwise approved by the NFL Players'
Association or other properly certified
collective bargaining unit representing NFL
player personnel.
(rrrr) Post-Season
Games: The total schedule of all playoff,
championship and "Super Bowl" football
games played by NFL Teams.
(ssss) Practice
Facilities: The outdoor practice field and
related amenities situated on the Land.
(tttt) Pre-Season
Games: The total schedule of all football
games played by NFL Teams in a given NFL Season
prior to the commencement of the Regular Season
Games.
(uuuu) Price Index:
The Consumer Price Index for all Urban Consumers:
All Items (CPI-U), U.S. City Average
(1993-1995=100), or if a substantial change is
made in the manner of calculating such index or
if such index or a successor or substitute index
is not available, a reliable governmental or
other non-partisan publication evaluating as
nearly as possible the same underlying economic
indicators as such index.
(vvvv) Proceeding:
Any claim, demand, action, suit, litigation,
dispute, order, writ, injunction, judgment,
assessment, decree, grievance, arbitral action,
investigation or other proceeding.
(wwww) Project:
The refurbishing, renovation and improvement of
the Stadium Complex, as described in the
Construction Coordinating Agreement.
(xxxx) Project
Agreement: The term "Project
Agreement" shall have the meaning ascribed
thereto in the Construction Coordinating
Agreement.
(yyyy) Project
Insurance Policy: The term "Project
Insurance Policy" shall have the meaning
ascribed thereto in the Construction Coordinating
Agreement.
(zzzz) Qualifying
License Fee Amount: For any Lease Year, the
amount set forth on Exhibit D
attached to the Stadium Lease.
(aaaaa) Recoupment
Amount: The sum of: (i) the Fall Out Amount;
and (ii) the aggregate sum for all Lease Years of
the amount by which the Total Deficit exceeds
$5,000,000 in each such Lease Year; provided,
however, that to the extent an amount
attributable to a License Fee Payment Default is
included in the calculations of the Fall Out
Amount, such amount shall be excluded from the
calculations of the Total Deficit.
(bbbbb) Regular
Season Games: The total schedule of all
football games played by NFL Teams used by the
NFL to determine which NFL Teams participate in
Post-Season Games.
(ccccc) Release:
Any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting,
escaping, leaching, migration, dumping or
disposing into the environment which could give
rise to an Environmental Claim or which is
required to be reported pursuant to 40 C.F.R. 302
or 355, or any analogous Environmental Law.
(ddddd) Reserved
Areas: (i) The concession and merchandise
vending areas of the Stadium Complex; (ii) the
Luxury Suites; (iii) the Stadium Club;
(iv) the Stadium press box; (v) the
Field House and (vi) the Team's
administrative offices, locker rooms and training
rooms.
(eeeee) Satisfaction:
The receipt by the Bills of binding License
Agreements for terms of not less than five (5)
years each, which will produce aggregate License
Fees at least equal to Eleven Million Dollars
($11,000,000) for the 1999 NFL Season.
(fffff) Scoreboards:
The sound system, public address system, message
boards and game clocks now or hereafter situated
within the Stadium.
(ggggg) Signage:
All signage (permanent or temporary) in or on the
Stadium Complex, including, without limitation,
the Scoreboards, Jumbotron or other replay
screens, banners, displays, time clocks, message
centers, advertisements and signs.
(hhhhh) Stadium:
The football stadium situated on the Land, which
includes, without limitation, the Club Level
Seats, the Jumbotron, the Luxury Suites and the
Playing Field.
(iiiii) Stadium
Affirmative Action Plan: The affirmative
action plan for the Stadium Complex attached
hereto as Exhibit E.
(jjjjj) Stadium
Agreements: The Construction Coordinating
Agreement, the Design Funding Agreement, the
Master Lease and the Stadium Lease.
(kkkkk) Stadium Club:
The restaurant facilities within the Stadium that
are reserved for the exclusive use by Club Seat
ticket holders.
(lllll) Stadium
Complex: The Access Roads, the Buildings, the
Land, the Parking Areas and the Practice
Facilities.
(mmmmm) Stadium
Events: All Games, Civic Events and Bills
Events.
(nnnnn) Stadium Lease:
The Stadium Lease, dated as of July __,
1998, between the ECSC, as sublessor, and the
Bills, as sublessee, together with all renewals,
replacements, modifications and amendments
hereof.
(ooooo) Stadium Lease
Expiration Date: July 30, 2013, or such
earlier date provided for in the Stadium Lease
upon which the Stadium Lease Term shall expire.
(ppppp) Stadium Lease
Term: The term of the Stadium Lease,
beginning on the Commencement Date and ending on
the Stadium Lease Expiration Date.
(qqqqq) Stadium
Patron: Any Person on or at the Stadium
Complex during a Stadium Event.
(rrrrr) State: The State of New
York.
(sssss) Structural
Repair: Any repair or replacement of a
structural nature to the Stadium, the
Administration Building, the Field House or the
Training Center, including, without limitation,
all necessary repairs and replacements of the
roof, foundation, doors, windows, loadbearing
walls and Playing Field surface.
(ttttt) Sublessee
Default: Any of the events listed in Section 24.1
of the Stadium Lease.
(uuuuu) Sublessor
Default: Any of the events listed in Section 25.1
of the Stadium Lease.
(vvvvv) Suite Corp.:
Buffalo Bills Suite Corp., a New York business
corporation having an office and principal place
of business at One Bills Drive, Orchard Park, New
York 14127.
(wwwww) Survey:
The survey of the Stadium Complex a reduced copy
of which is attached hereto as Exhibit F.
(xxxxx) Taking:
Any appropriation for public purposes, taking by
right of eminent domain or other condemnation
proceeding initiated by any Governmental
Authority with respect to all or any portion of
the Stadium Complex.
(yyyyy) Team: The
NFL Team owned by the Bills pursuant to the
Franchise currently named "Buffalo
Bills".
(zzzzz) Term: As
used in the Master Lease, the Master Lease Term,
and as used in the Stadium Lease, the Stadium
Lease Term.
(aaaaaa) Termination
Date: July 30th of the Lease Year in which
the Bills exercise their option to cancel the
Stadium Lease pursuant to Section 7.2
thereof.
(bbbbbb) Termination
Fee: The amount set forth in Exhibit G
attached to the Stadium Lease to be paid by the
Bills to the ECSC upon the exercise of the Bills'
option to cancel the Stadium Lease pursuant to Section 7.2
thereof.
(cccccc) Total
Deficit: The sum of the Net Ticket Deficit
and the License Fee Deficit for any Lease Year.
(dddddd) Training
Center: The approximately 75,000 square foot
training center and Team operations facility to
be constructed on the Land as part of the
Project, as described in the Development Study.
(eeeeee) Transfer of
Ownership: Any direct or indirect sale,
transfer, assignment or other conveyance of
(i) the Franchise (or any interest(s)
therein) in whole or in part, or (ii) the
acquisition by any Person (other than
Ralph C. Wilson, Jr., his spouse, any trust
or other entity controlled by him or any of his
lineal descendants) of beneficial ownership
(within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of
1934) of fifty-one percent (51%) or more of the
capital stock of the Bills (whether acquired in
one or more transactions).
(ffffff) Unaffiliated
Vendors: Any Person not employed by the Bills
or by the concessionaire selected by the Bills
and approved by the County in accordance with Section 4.5
of the Stadium Lease who sells, offers for sale
or otherwise attempts to sell any food, beverage
or merchandise of any kind or nature whatsoever
on the grounds of the Stadium Complex outside of
the Stadium.
(gggggg) Unamortized
Initial ECSC Investment: The unamortized
balance, on a given date, of the Initial ECSC
Investment, as set forth on Exhibit H
attached to the Stadium Lease. [Exhibit to
consist of straight-line amortization schedule
for $98.25 million over a one hundred and eighty
month period based upon the Default Interest Rate
as of the Lease Date.]
(hhhhhh) Unspent
Capital Improvement Allowance: For any Lease
Year, the amount by which the Capital Improvement
Allowance exceeds the amount expended by the
County for Structural Repairs.
(iiiiii) Working
Capital Assistance: The amounts to be paid by
the ECSC to the Bills pursuant to Section 11.1
of the Stadium Lease.
(jjjjjj) Vending Plan:
The plan, a copy of which is attached to the
Stadium Lease as Exhibit I, outlining
(i) the process for the selection,
operation, regulation and governance of vending
by Unaffiliated Vendors on those portions of the
Stadium Complex outside of the Stadium and
(ii) the opportunities for non-profit and
charitable organizations to operate concession
stands within the Stadium.
(kkkkkk) Voucher:
The form of voucher attached to the Master Lease
as Exhibit __.
If any other provision of this Stadium
Lease contradicts any definition of this Article, such other
provision will prevail.
1.2 Exhibits and Schedules. The
following exhibits and schedules are attached to and made a part
of this Stadium Lease:
EXHIBIT A -- Description of
Bills' Improvements
EXHIBIT B -- Description of the
Land
EXHIBIT C -- NFL Rules and
Regulations
EXHIBIT D -- Qualifying License
Fee Amounts
EXHIBIT E -- Stadium Affirmative
Action Plan
EXHIBIT F -- Survey
EXHIBIT G -- Termination Fee
EXHIBIT H -- Amortization
Schedule for Initial ECSC Investment
EXHIBIT I -- Vending Plan
EXHIBIT J -- County Local Law
No. 2-1994
EXHIBIT K -- Concessionaire
Insurance Requirements
EXHIBIT L -- Suite and Club Seat
License Agreements
EXHIBIT M -- County Local Law
No. 5-1996
EXHIBIT N -- Section 7.1 Notice
EXHIBIT O -- NFL Counsel Opinion
SCHEDULE 9.4 -- Schedule of Operating/Game Day Expense Reimbursement Payments
ARTICLE 2 DEMISE
2.1 Grant of Sublease. The ECSC
hereby subleases the Stadium Complex to the Bills, and the Bills
hereby sublease the Stadium Complex from the ECSC, for the Term,
on the terms and conditions set forth in this Stadium Lease.
2.2 Reservation of County Facilities.
As provided in Section 2.2 of the Master Lease, at all times
during the Term, the County Facilities shall be reserved for the
exclusive use and occupancy of the County. The Bills covenant and
agree that at all times during the Term, the County shall have
the right to access and use, on a non-exclusive basis, consistent
with existing practice, all first aid and security areas within
the Stadium.
2.3 Civic Events. Other than
during the NFL Season, the Bills shall make the Stadium Complex
available for up to four (4) Civic Events per Lease Year on the
following terms and conditions:
(a) Three (3) of such Civic Events shall
be available for use by the County or any Person designated by
the County, and one (1) of such Civic Events shall be available
for use by the ECSC or any Person designated by the ECSC.
(b) At least forty-five (45) days but
not more than one-hundred and eighty (180) days prior to the date
of the proposed Civic Event, the County or the ECSC, as the case
may be, shall notify the Bills in writing of the requested date
for such event and shall identify in all material respects to the
extent then known the nature of the event, the sponsor, the areas
of the Stadium Complex to be utilized, the terms (including
ticket prices) of admission, the expected attendance, any special
security or other arrangements and any other relevant information
reasonably necessary for the Bills to perform their duties as the
operator of the Stadium Complex. The notifying party shall update
the content of such notice from time to time promptly upon
becoming aware of any changes in the information given above and
any additional relevant information of the type described above.
Upon its receipt of a notice requesting the scheduling of a Civic
Event, the Bills shall reserve such date for such Civic Event
(unless such date has been previously reserved for another
Stadium Event) and shall not schedule any other subsequently
proposed Stadium Event on such date without written approval from
the County or the ECSC, as the case may be.
(c) In no event shall any Civic Event be
scheduled on any date that has been previously reserved for a
Bills' Event or another Civic Event. The County, the ECSC and the
Bills shall exercise good faith and cooperate with one another in
the event of potential conflicts that may arise between proposed
events.
(d) In no event shall any Civic Event be
a professional football game or other professional sporting
contest, nor shall any Civic Event include an event or activity
which reasonably may be expected to cause damage to the Playing
Field which will not be repaired in a timely fashion.
(e) The Bills shall promptly invoice the
County or the ECSC, as the case may be, for all Civic Event
Expenses following any Civic Event which it sponsors, and shall
include
with such invoice copies of appropriate
back-up documentation evidencing such Civic Event Expenses.
Within forty-five (45) business days of the receipt by the County
or the ECSC of any such invoice, the recipient shall, at its sole
cost and expense, reimburse the Bills for all invoiced Civic
Event Expenses.
(f) The County and the ECSC shall each
retain the admission ticket revenue (if any) from any Civic Event
which it sponsors.
(g) All Licensees who seek to use their
Luxury Suite or Club Level Seat in conjunction with a Civic Event
shall be required to purchase admission tickets for such Civic
Event.
(h) The County or the ECSC, as the case
may be, shall promptly repair or cause to be repaired any damage
to any component of the Stadium Complex arising out of any Civic
Event which it sponsors.
(i) Neither the County, the ECSC nor any
Person designated by the County or the ECSC with respect to a
Civic Event shall have the right to use any of the Reserved Areas
during Civic Events.
(j) At the request of the County or the
ECSC, as the case may be, the Bills shall operate the Stadium
Complex concessions and the Parking Areas during or in connection
with a Civic Event at a level deemed appropriate by the Bills, in
their reasonable discretion, in light of the nature of the Civic
Event and the number of Stadium Patrons expected to attend the
Civic Event. All revenue derived from such operations shall
belong to the Bills.
2.4 Suitability of the Stadium
Complex. The Bills acknowledge that neither the County, the
ECSC nor their respective agents or employees have made any
representations or warranties as to the suitability or fitness of
the Stadium Complex for the operations of the Team or for any
other purpose, nor has the County, the ECSC or their respective
agents or employees agreed to undertake any alterations or
construct any improvements to the Stadium Complex except as
expressly provided in the Master Lease, this Stadium Lease and in
the Construction Coordinating Agreement.
ARTICLE 3 RENT
3.1 Rent. On or before
March 31st of each Lease Year, the Bills shall pay to the
ECSC, as rent for the Stadium Complex, fifty percent (50%) of the
amount by which Net Ticket Revenue exceeds NFL Average Net Ticket
Revenue for the NFL Season concluded on or about
February 1st of such Lease Year. Such rent shall be paid to
the ECSC without notice or demand and without abatement,
deduction or set-off in lawful money of the United States of
America at the ECSC's Address and shall be accompanied by a
certification, in form and content satisfactory to the ECSC, from
an independent nationally recognized certified public accounting
firm reasonably acceptable to the ECSC, setting forth the
calculations used by the Bills in determining such rental
payment.
3.2 NFL Net Ticket Revenue
Calculation. On or before March 31st of each Lease Year,
the NFL shall furnish the ECSC with the NFL Average Net Ticket
Revenue for the preceding NFL Season, together with appropriate
backup information so as to permit the ECSC to verify the NFL's
computations. In the event the NFL fails or refuses to furnish
the information necessary to calculate and verify the NFL Average
Net Ticket Revenue for the preceding NFL Season by such date,
rent for the then current Lease Year shall be computed by using
in lieu thereof the average of the NFL Average Net Ticket Revenue
for the four most recently available NFL Seasons. Any rent
determined thereby to be due from the Bills to the ECSC shall be
promptly remitted to the ECSC in accordance with Section 3.1.
Promptly following the furnishing by the NFL of the NFL Average
Net Ticket Revenue figures for such NFL Season, rent shall be
recomputed and appropriate adjustments between the Bills and the
ECSC shall be made.
3.3 Audit. The ECSC shall be
entitled from time to time to audit and verify the Books and
Records to assure that Net Ticket Revenue and the corresponding
rent calculations are in accordance with this Article 3.
In the event that any such audit or verification reveals that the
rent paid by the Bills for any Lease Year is understated, the
Bills will immediately pay to the ECSC such unpaid rent, together
with interest at the Default Interest Rate, from the date on
which such rent should have been paid. In the event such audit or
verification reveals an underpayment of rent of three percent
(3%) or more, in addition to such payment, the Bills will
immediately reimburse the ECSC for all costs reasonably incurred
for such audit and verification.
3.4 Late Payment. In the event
that any payment of rent or additional rent due hereunder is not
paid by the fifth (5th) day after which it is due, a late charge
of five percent (5%) of the overdue amount may be charged by the
ECSC for each month or part thereof that the same remains
overdue. Any such "late charges" shall be deemed
additional rent hereunder.
ARTICLE 4. ADDITIONAL RIGHTS OF THE BILLS WITH RESPECT TO THE STADIUM COMPLEX
4.1 General Right to Receive Revenue
Generated at the Stadium Complex. Subject to the terms and
conditions of this Stadium Lease, and, in particular Article 2
and Article 4, during the Term, the Bills shall have the
exclusive right to contract for, collect, receive and retain all
income and revenues of whatever kind or nature realized by, from
or in connection with the Stadium Complex, including, without
limitation, all revenues, royalties, license fees, concession
fees and income and receipts arising from (a) the sale or
distribution of admission tickets to Games and Bills' Events
(including admission tickets to Club Level Seats, Luxury Suites
and general admission seats); (b) the naming of, or the
sale, lease or license of the right to name the Stadium Complex
or any portion thereof; (c) the sale, lease or license of
the Advertising Rights, including Signage; (d) the sale,
lease or license of the Broadcast Rights; (e) the sale of
food and beverages at the Stadium Complex; (f) the operation
of the Parking Areas; (g) the sale of merchandise, programs
and other goods and wares of any nature whatsoever at the Stadium
Complex; and (h) the use of Luxury Suites and Club Level
Seats. Nothing contained herein or elsewhere in the Stadium
Agreements shall be construed as a limitation or curtailment of
the general regulatory or police powers of the County or any
other Governmental Authority. It is further acknowledged and
agreed that the rights of the Bills pursuant to this Article 4
(including, without limitation, any contract entered by the Bills
pursuant to this Article 4): (a) shall expire at the
end of the Term (regardless of whether the Term ends by reason of
the attainment of the Stadium Lease Expiration Date or the
earlier termination or cancellation thereof); and (b) shall be
subject to Applicable Law (including any obligation imposed on
the Bills under Applicable Law to collect and remit all required
sales and use taxes).
4.2 Naming of Stadium Complex.
(a) The Bills shall have the exclusive right to name, or contract
from time to time with any Person or Persons on such terms as the
Bills may determine with respect to the naming of the Stadium
Complex or any portion thereof; provided that (i) the term
during which any such name shall apply shall expire no later than
the end of the Term (whether due to the attainment of the Stadium
Lease Expiration Date or any earlier termination or cancellation
thereof) and (ii) given the substantial interest of the County
and the ECSC in the Stadium Complex and the public character
thereof, the Bills shall not permit any name to be given to the
Stadium Complex or any portion thereof except in accordance with
this Section 4.2.
(b) In the event the Bills name the
Stadium Complex or any portion thereof themselves, any name
chosen by the Bills (i) shall be consistent with the NFL's
policy with respect to the promotion and image of professional
football (taking into account the fact that the game has
substantial appeal to youth) and (ii) shall not unreasonably
cause embarrassment to the County or the ECSC (such as names
containing slang, barbarisms or profanity; names that could be
construed to encourage the use of alcohol by minors or the use of
tobacco by persons of any age; or names that relate to illicit
drugs or any sexually oriented business or enterprise).
(c) In the event the Bills contract with
any Person or Persons with respect to the naming of the Stadium
Complex or any portion thereof, such name shall be subject to the
prior approval of the County and the ECSC, which approval shall
not be unreasonably withheld. Each of the County and the ECSC
shall be deemed to have given its approval to any name requested
by the Bills unless, within forty-five (45) days following such
party's receipt of the Bills' written request for such approval,
such party notifies the Bills of its disapproval in writing.
(d) The Bills agree to indemnify, defend
and hold harmless the County and the ECSC from any Losses arising
out of the exercise by the Bills of their rights pursuant to this
Section 4.2; provided, however, that the foregoing
indemnification shall not be construed so as to include any
revenue or income which the County or the ECSC might have
realized upon the sale or other conveyance of the naming rights
to the Stadium Complex or any portion thereof.
(e) Following the selection, and, if
necessary, approval by the County and the ECSC of a name for the
Stadium Complex, the County shall use commercially reasonable
efforts: (i) to cause all existing County road signs which
reference the Stadium Complex to identify the Stadium Complex by
such name within thirty (30) days of its receipt of written
notification of the selection of such name, and (b) to cause
all County brochures and literature published thereafter which
reference the Stadium Complex to identify the Stadium Complex by
such name. Notwithstanding the foregoing, (i) the County
shall not have any obligation pursuant to the preceding sentence
other than with respect to the initial name given to the Stadium
Complex pursuant to this Section 4.2, and
(ii) the preceding sentence shall not be construed so as to
impose any obligation on the County with respect to any signage,
brochures, literature or other media promulgated by any other
Governmental Authority.
4.3 Advertising Rights. Subject
to Applicable Law, including, but not limited to, County Local
Law No. 2-1994, a copy of which is attached hereto as Exhibit J,
the Bills shall have the exclusive right to control and contract
with respect to the Advertising Rights; provided that
(a) the duration of any contract with respect to the
Advertising Rights shall expire no later than the end of the Term
(whether due to the attainment of the Stadium Lease Expiration
Date or any earlier termination or cancellation thereof) and
(b) given the County's substantial interest in the Stadium
Complex and the public character thereof, the Bills shall not
erect or permit to be erected any Signage which is intended to
remain in place for any period longer than seven (7) days without
the County's prior written approval as to the location, size and
content thereof, which approval shall not be unreasonably
withheld, conditioned or delayed. The County shall be deemed to
have given its approval to any Signage requested by the Bills
unless, within fifteen (15) business days following receipt of
the Bills' written request for such approval, the County notifies
the Bills of its disapproval. The Bills agree to indemnify,
defend and hold harmless the County and the ECSC from any Losses
arising out of the exercise by the Bills of their rights pursuant
to this Section 4.3; provided, however, that the foregoing
indemnification shall not be construed so as to include any
revenue or income which the County or the ECSC might have
realized upon the sale or other conveyance of the Advertising
Rights.
4.4 Broadcast Rights. The Bills
shall have the exclusive right to control, conduct, lease,
license, grant concessions with respect to, sell, benefit,
control and enter into agreements with respect to the Broadcast
Rights; provided that the duration of any contract with respect
to the Broadcast Rights shall expire no later than the end of the
Term (whether due to the attainment of the Stadium Lease
Expiration Date or any earlier termination or cancellation
thereof).
4.5 Concessions.
(a) The Bills shall have the exclusive
right to sell all food and beverages within the Stadium Complex,
which shall include the right to contract with any third party or
parties to operate the food and beverage concessions at the
Stadium Complex; provided that the duration of any contract with
respect to the food and beverage concessions shall expire no
later than the end of the Term (whether due to the attainment of
the Stadium Lease Expiration Date or any earlier termination or
cancellation thereof).
(b) Any concessionaire with whom the
Bills shall contract shall be entitled to bring a reasonably
sufficient number of legally-qualified workers into the Stadium,
free of charge, in order to operate its concession. Any
concessionaire's workers shall at all times be neatly, modestly
and cleanly dressed. The concessionaire's workers shall not
unreasonably disturb or offend Stadium Patrons or disturb or
interfere with any Stadium Events. The Bills shall comply with
all Applicable Laws with regard to the grant of the concession
rights described herein to any third party and with regard to the
operation of the food and beverage concessions at the Stadium
Complex. The Bills shall determine the items of food or beverage
to be offered, the prices to be charged for such items and the
concessionaires to provide such service. Subject to terms and
conditions of Article 15, the Bills shall have the
right to determine the location of concession stands for the sale
of food and beverage concessions and staging areas for the
storage and preparation of food and beverages prior to sale,
within the Stadium Complex, in its reasonable discretion, subject
to considerations for public health, safety and access. The
rights granted to the Bills with regard to concessions pursuant
to this Stadium Lease shall include the right to determine, in
the Bills' reasonable discretion, how many concession areas will
be open during any Stadium Events and what items of food and
beverage shall be served. For the purposes of this Stadium Lease,
the right to sell or offer for sale beverages and all other
rights granted to the Bills with regard thereto shall
specifically include the right to sell, offer for sale and
control the sale of alcoholic beverages, subject to Applicable
Law.
(c) Each food and beverage concession
contract shall: (i) include a covenant in form of
paragraph 1 of the Affirmative Action Plan evidencing the
agreement of the concessionaire to refrain from discrimination
with respect to its employees at the Stadium Complex;
(ii) provide that concessionaire shall maintain the
insurance coverages set forth in Exhibit K attached
hereto; (iii) provide that the concessionaire shall
indemnify, defend and hold harmless the County, the ECSC and
their respective Affiliates from and against any and all
liability arising out of such concessionaire's operations;
(iv) provide that the concessionaire shall comply with
Applicable Law; and (v) be subject to the County's review
and approval of the non-financial covenants thereof, which
approval shall not be unreasonably withheld, conditioned or
delayed. One or more representatives of the Bills (who may be
employees of any concessionaire) shall be made available to the
County and the ECSC as part of the operation of concessions at
Stadium Events in order to handle any problems which may arise
with regard thereto.
(d) Throughout the Term, the Bills shall
use commercially reasonably efforts to cause all food and
beverage concessionaires at the Stadium Complex to fully perform
and comply with the terms and conditions of the contract between
the Bills and such concessionaire, and, upon such
concessionaire's breach thereof, enforce through appropriate and
lawful means, each such contract in accordance with the terms and
conditions thereof.
4.6 Parking. The Bills shall have
the exclusive right to operate, manage and control the Parking
Areas, and shall determine the fees to be charged for parking at
the Stadium Complex; provided, however, that the duration of any
contract with respect to the management or operation of the
Parking Areas shall expire no later than the end of the Term
(whether due to the attainment of the Stadium Lease Expiration
Date or any earlier termination or cancellation thereof).
4.7 Merchandising. The Bills
shall have the exclusive right to sell, lease or contract for the
sale or lease of programs, yearbooks, novelties, pendants, hats,
clothing, sports equipment, cameras, film, binoculars, headsets
or any other items, goods or equipment which the Bills (in their
sole discretion) may desire to offer for sale or lease at the
Stadium and elsewhere within the Stadium Complex; provided that
the duration of any contract with respect to the sale of
merchandise at the Stadium Complex shall expire no later than the
end of the Term (whether due to the attainment of the Stadium
Lease Expiration Date or any earlier termination or cancellation
thereof). The Bills shall also have the exclusive right to set up
carts, kiosks and other similar temporary structures for the sale
of such items anywhere on the Stadium Complex at locations
selected by the Bills in their reasonable discretion, taking into
consideration public safety and access. Neither the County nor
the ECSC shall have any rights of approval with regard to the
items of merchandise offered for sale or lease at the Stadium or
elsewhere within the Stadium Complex, the prices to be charged
for such items of merchandise or the concessionaire or
concessionaires to provide such merchandise; provided however,
that the Bills shall not sell or offer to sell at the Stadium
Complex products containing tobacco or any other products which
are now or hereafter may be prohibited for sale at the Stadium
Complex by Applicable Law.
4.8 Luxury Suites. The Bills
shall have the exclusive right to license any or all of the
Luxury Suites during the Term, and the Bills shall retain all
License Fees and other revenues derived therefrom; provided,
however, that the duration of any license with respect to any
Luxury Suite shall expire no later than the end of the Term
(whether due to the attainment of the Stadium Lease Expiration
Date or any termination or cancellation thereof). Without the
prior written consent of the County and ECSC, which consent shall
not be unreasonably withheld, conditioned or delayed, the Bills
shall not utilize any form of agreement to effect such licensing
other than forms substantially similar to those attached hereto
as Exhibit L. Licensees of Luxury Suites shall have
the right to purchase tickets for admission to their Luxury Suite
for Civic Events in accordance with Section 2.3(g).
4.9 Club Level Seats. The Bills
shall have the exclusive right to license any or all of the Club
Level Seats during the Term, and the Bills shall retain all
License Fees and other revenues derived therefrom; provided,
however, that the duration of any license with respect to any
Club Level Seat shall expire no later than the end of the Term
(whether due to the attainment of the Stadium Lease Expiration
Date or any earlier termination or cancellation thereof). Without
the prior written consent of the County and ECSC, which consent
shall not be unreasonably withheld, conditioned or delayed, the
Bills shall not utilize any form of agreement to effect such
licensing other than forms substantially similar to those
attached hereto as Exhibit L. Licensees of Club Level
Seats shall have the right to purchase tickets to utilize their
Club Level Seats for Civic Events in accordance with Section 2.3(g).
4.10 Scoreboards. The Bills shall
have the exclusive right to use and control the Scoreboards at
all Stadium Events during the Term, provided that the County and
the ECSC shall have access to the Scoreboards in the event of an
emergency. Upon request of the County or the ECSC, as the case
may be, the Bills shall make the Scoreboards (and any personnel
necessary to operate the Scoreboards) available for all Civic
Events.
4.11 Jumbotron. The Bills shall
have the exclusive right to use and control the Jumbotron, as
well as the control room or rooms used for the operation of the
Jumbotron, at all Stadium Events during the Term, provided that
the County and the ECSC shall have access to the Jumbotron in the
event of an emergency. Upon request of the County or the ECSC, as
the case may be, the Bills shall make the Jumbotron (and any
personnel necessary to operate the Jumbotron) available for all
Civic Events.
ARTICLE 5 USE
5.1 The Bills' Use of the Stadium
Complex. Subject to the terms and conditions of this Stadium
Lease, during the Term, the Bills shall have the right to use the
Stadium Complex for any lawful purpose which (a) is not
generally recognized as being contrary to public morals, and
(b) does not change the primary purpose of the Stadium
Complex from a venue for professional football contests and
musical concerts and festivals, consistent with the uses to which
the Stadium has been put during the term of the Original Lease.
The County and the ECSC acknowledge that the uses to which the
Stadium has been put during the term of the Original Lease (i.e.,
professional football contests and musical concerts and
festivals) have not been, and shall not hereafter be deemed to be
generally recognized as being contrary to public morals.
5.2 Compliance with Law. Subject
to respective obligations of the County and the Bills to perform
Capital Improvements required by reason of Applicable Law as
hereafter set forth in this Section 5.2, at all times
during the Term, the Bills shall, at their sole cost and expense,
comply with: (i) all Applicable Laws; (ii) all
requirements of any board of fire underwriters or other similar
body; and (iii) any direction or occupancy certificate
issued by any Governmental Authority. Any Capital Improvement to
or within the Stadium Complex, or any part thereof, which may be
necessary or required by reason of any Applicable Law (including,
without limitation, the Americans With Disabilities Act) and
which arises out of or relates to any Bills' Improvement, shall
be promptly made by and at the cost and expense of the Bills,
subject, however, to the terms and conditions of this Stadium
Lease, including without limitation, Article 15
hereof. Pursuant to Section 7.1 of the Master Lease, any
other Capital Improvement to or within the Stadium Complex or any
part thereof, which may be necessary or required by reason of any
Applicable Law (including, without limitation, the Americans With
Disabilities Act), shall be promptly made by and at the cost and
expense of the County, in accordance with plans and
specifications approved by the Bills, such approval not to be
unreasonably withheld, conditioned or delayed.
5.3 Covenant Prohibiting Professional
Baseball. Notwithstanding the permitted uses set forth in Section 5.1,
the Bills shall not keep or maintain a professional baseball
franchise at the Stadium Complex without the prior written
consent of the County and the ECSC.
5.4 Smoking Ban. Throughout the
Term, smoking shall be prohibited in the Buildings, except in
accordance with Applicable Law. At all times during the Term, the
Bills shall use their best efforts to cause all Stadium Patrons
to comply with County Local Law No. 5-1996, a copy of which
is attached hereto as Exhibit M. The Bills shall be
deemed to have utilized their best efforts to cause all Stadium
Patrons to comply with such law if the Bills: (a) post
placards throughout the Buildings regarding the prohibition
against smoking; (b) refuse entry to the Stadium to any
Stadium Patron who is smoking; (c) make at least two
(2) announcements over the Stadium's public address system
during each Game and Bills Event regarding said prohibition; and
(d) notify Stadium Patrons who are seen violating said law
that they are doing so.
ARTICLE 6 FRANCHISE MAINTENANCE
6.1 Playing of Games. The NFL
covenants and agrees that at all times during the Term, at least
fifty percent (50%) of the Team's Regular Season Games will be
designated as "home" games. Subject only to the
exceptions described in Section 6.2 below, the Bills
covenant and agree that, during the Term (as the same may be
terminated or cancelled prior to the Stadium Lease Expiration
Date in accordance with the terms and conditions hereof), all
Games shall be played at the Stadium, unless each of the County
and ECSC shall have given prior written consent to the playing of
specified Games at a different location or locations, which
consent shall be within the sole and absolute discretion of each
of the County and ECSC.
6.2 Exceptions. Notwithstanding
the provisions of Section 6.1 above, the Bills shall have
the right to play any Game at a facility other than the Stadium
if, as a proximate result of an event of Force Majeure, the
Stadium cannot practically, safely and economically be used by
the Bills for any Game, provided that the Bills shall promptly
furnish notice to each of the County and ECSC in the event of the
occurrence of any such event, which notice shall identify the
event, the resulting condition and number of days and Games
expected to be played at such other facility.
6.3 Maintenance of the Team and the
Franchise.
(a) During the Term, the Bills shall:
(i) keep and maintain the Team as a member in good standing of
the NFL; (ii) keep and maintain the Franchise in good
standing with the NFL; (iii) subject to the fulfillment by
the County and the ECSC of their respective obligations to repair
and maintain the Stadium Complex pursuant to the Stadium
Agreements (and any applicable notice and cure periods provided
for therein), keep and maintain the Stadium as the facility
designated to and by the NFL as the home facility for the Team;
and (iv) continuously operate the Team at the Stadium in
accordance with NFL Rules and Regulations. Subject to the
provisions of Section 6.2 above and the terms and
conditions of this Section 6.3, during the Term, without
the prior written consent of the County and the ECSC, which
consent shall be within the sole and absolute discretion of each
of the County and the ECSC, the Bills shall not: (i) apply
to the NFL for approval to allow the Team to play any Games
during the Term anywhere other than the Stadium;
(ii) relocate, transfer or otherwise move the Team to a
location other than the Stadium; (iii) sell, assign or
otherwise transfer the Team to any Person who discloses to the
Bills an intention to relocate, transfer or otherwise move the
Team during the Term to a location other than the Stadium; or
(iv) enter into any contract or agreement to sell, assign or
otherwise transfer the Team to any Person who discloses to the
Bills an intention to relocate, transfer or otherwise move the
Team during the Term to a location other than the Stadium.
(b) Notwithstanding the foregoing, it is
acknowledged that in the event of a violation of any of the
affirmative covenants set forth in clauses (i) and (ii) of the
first sentence of subparagraph (a) above which occurs at any time
other than during a NFL Season, such violation shall not
constitute a Sublessee Default unless and until: (i) the
ECSC or the County shall have given the Bills written notice
thereof; and (ii) such violation continues for a period of
thirty (30) days thereafter, or if such violation cannot
reasonably be cured within such thirty (30) day period, if the
Bills fail to diligently commence to cure such violation within
thirty (30) days after such written notice, and to diligently
complete such cure thereafter.
6.4 Transfer of Franchise.
(a) During the Term, the Bills may not
sell, assign or otherwise transfer the Franchise or any of their
interest in the Franchise to any Person other than a Permitted
Assignee.
(b) At least ten (10) days prior to the
consummation of any sale, assignment or other transfer of the
Franchise or of any interest of the Bills in the Franchise by the
Bills to a Permitted Assignee, the Bills shall deliver to each of
the County and ECSC for written approval, such approval not to be
unreasonably withheld, conditioned or delayed, a copy of the
instrument by which such proposed Permitted Assignee agrees to be
bound by the terms of the Stadium Agreements and, in particular,
the Franchise Maintenance Covenants and to assume and perform all
of the Bills' obligations and covenants contained herein.
6.5 Specific Enforcement; Liquidated
Damages.
(a) The Parties acknowledge that:
(i) the Team, as property, is extraordinary and unique and
that under the organization of professional football by and
through the NFL, neither the County nor the ECSC may be able to
replace the Team; and (ii) that the determination of damages
caused by a breach of the Franchise Maintenance Covenants and
suffered by the State, the County, the ECSC and the Western New
York community would be difficult, if not impossible, to
ascertain. Therefore, the Parties acknowledge and agree that
there exists no adequate and complete remedy at law to enforce
the Franchise Maintenance Covenants, and that equitable relief by
way of a decree of specific performance or an injunction (such as
a prohibitory injunction barring the Bills from relocating or
playing the Games in a facility other than the Stadium or a
mandatory injunction requiring the Bills to play the Games at the
Stadium) is the only appropriate remedy for the enforcement of
the Franchise Maintenance Covenants notwithstanding the
provisions for liquidated damages provided elsewhere in this Section
6.5. In amplification and not in limitation of the foregoing,
the County and the ECSC acknowledge and agree that, in the event
the Bills breach or threaten to breach any of the Franchise
Maintenance Covenants, the County and/or the ECSC, as the case
may be, shall seek equitable relief before attempting to avail
itself or themselves of the liquidated damages provisions set
forth in this Section 6.5.
(b) The Bills acknowledge and agree
that, if upon the breach of any of the Franchise Maintenance
Covenants, equitable relief fashioned to require the Bills to
play Games in the Stadium is not granted by a court of competent
jurisdiction for any reason, the payment of liquidated damages is
the next most appropriate remedy. Therefore, in the event of a
breach by the Bills of any of the Franchise Maintenance Covenants
and the failure of any such court to grant the equitable relief
described in subparagraph (a) above, the Bills shall pay
liquidated damages to the County and the ECSC, in the aggregate,
as follows:
(i) In the event such breach
occurs prior to the commencement of the seventh (7th)
Lease Year, the amount of liquidated damages shall be the
Unamortized Initial ECSC Investment as of the date of the
breach of the relevant Franchise Maintenance Covenant.
(ii) In the event such breach
occurs on or after the commencement of the seventh (7th)
Lease Year, the amount of liquidated damages shall be
one-hundred and fifty percent (150%) of the Termination
Fee (less the Recoupment Amount) that would be otherwise
due and payable as of the date of such breach if the
Bills had validly exercised their option to terminate
this Stadium Lease pursuant to Section 7.2, which
liquidated damage amount shall be in lieu of the
Termination Fee that would have been otherwise payable
had the Bills validly exercised their option pursuant to Section 7.2.
(c) In determining the amount of
liquidated damages provided for in sub-paragraph (b) above, it is
acknowledged and agreed that the Parties have exercised great
care to make a reasonable forecast of direct and consequential
damages allowable by law that may arise from the breach of any of
the Franchise Maintenance Covenants, taking into due
consideration: (i) the loss of taxes attributable to Team
operations; (ii) the extraordinary involvement, covenants and
expense of the public in securing the Team's commitment to play
the Games at the Stadium for the Term; (iii) the consequent
reduction in value of the Stadium Complex arising from the
absence of the Team; (iv) the substantial economic benefit
conferred upon the Team through the Stadium Lease intended to
assure that the Team will play all of its Games in the Stadium
for the Term; (v) the detrimental effects of a breach on the
Western New York community; and (vi) the loss of revenues to the
Western New York community. Upon the breach of any of the
Franchise Maintenance Covenants, and if injunctive relief or
specific performance as provided in this Section 6.5
is not granted to either the County or the ECSC, liquidated
damages shall be paid by the Bills in immediately available funds
in a lump sum not later than ninety (90) days from the date of
the breach of any such covenant.
(d) If, upon the breach of any of the
Franchise Maintenance Covenants, equitable relief fashioned to
require the Bills to play Games in the Stadium is not granted by
a court of competent jurisdiction for any reason, the Bills, for
themselves, their successors, Permitted Assignees and Affiliates,
hereby waive any right, arising hereunder, at law, in equity or
otherwise, to object to or otherwise challenge the validity,
appropriateness or legitimacy of liquidated damages as the remedy
for such breach.
6.6 All Remedies. If, upon a
breach or threatened breach of any of the Franchise Maintenance
Covenants by the Bills, the equitable remedies and liquidated
damages provided for in Section 6.5 are unavailable
for any reason, each of the County and the ECSC shall be entitled
to pursue all other legal and equitable remedies against the
Bills (including, but not limited to, those remedies which are
available to the County and the ECSC by reason of a Sublessee
Default), whether or not such remedies are specifically set forth
in this Article 6; provided, however, that any damages or
money judgment obtained in any such legal or equitable
proceedings shall not exceed the amount of liquidated damages
that the County and the ECSC would have been entitled to receive
pursuant to Section 6.5(b) but for such
unavailability. All such remedies are cumulative and may be
exercised concurrently, successively, or in any order.
6.7 Termination of Covenants. The
Franchise Maintenance Covenants shall terminate upon the
expiration or earlier rightful termination or cancellation of the
Term; provided, however, that no such termination or cancellation
shall relieve the Bills of any obligation for liquidated damages
arising or accruing pursuant to this Article 6 prior to
the date of such termination or cancellation.
6.8 NFL Rules and Regulations.
The NFL represents and warrants to each of the County and the
ECSC that the excerpts of the NFL Rules and Regulations attached
hereto as Exhibit C include all portions thereof relevant
to the transactions contemplated by the Stadium Agreements, and
are true, correct and complete as of the date hereof. The NFL
hereby undertakes to deliver to each of the County and the ECSC,
within ten (10) days after the NFL's receipt of a written request
therefor, true, correct and complete copies of all subsequent
amendments to those portions of the NFL Rules and Regulations
that pertain to the transactions contemplated by the Stadium
Agreements.
ARTICLE 7. CANCELLATION OF LEASE;
LEASE BUYOUT
7.1 Automatic Cancellation of Stadium
Lease.
(a) If on or before December 1,
1998, Satisfaction is achieved with respect to the Marketing
Campaign or the Bills deliver a written waiver of the necessity
therefor, this Stadium Lease shall remain in full force and
effect. If, however, Satisfaction is not achieved or otherwise
waived in writing on or before December 1, 1998, this
Stadium Lease shall automatically terminate, and, except for the
terms and conditions hereof which specifically survive such
termination, shall become void and of no further force and
effect. The effectiveness of such automatic termination shall be
conditioned upon the payment by the Bills of the sum set forth in
Section 11.2.
(b) While not a condition to either the
automatic continuation or termination of this Stadium Lease
pursuant to subparagraph (a) above, on or prior to
December 1, 1998, but not later than 12:00 noon on
December 1, 1998, the Bills shall deliver to each of the
ECSC and the County, notice in the form of Exhibit N
attached hereto, evidencing either: (i) the achievement of
Satisfaction with respect to the Marketing Campaign;
(ii) the waiver by the Bills of necessity of achieving
Satisfaction with respect to the Marketing Campaign; or
(iii) the failure to achieve Satisfaction with respect to
the Marketing Campaign.
(c) For the purposes of this Section 7.1,
the notice provided for in subparagraph (a) above shall be
deemed "delivered" if, on or before 12:00 noon on
December 1, 1998, the Bills receive confirmation that notice
was successfully transmitted via facsimile to both the
ECSC or the County, or the Bills deliver such notices to Federal
Express, UPS or other similar private courier for overnight
shipment to the ECSC and the County.
7.2 Lease Buyout Option. The
Bills shall have the right to terminate this Stadium
Lease effective at 11:59 p.m.,
Buffalo, New York time, on the last day of any of the sixth (6th)
through fourteenth (14th) Lease Years (i.e., July 30th of
any of the Lease Years ending in 2004 through 2012). Such right
of cancellation shall be exercised by the Bills' delivery to the
County and the ECSC of written notice no later than 12:00 noon on
February 28th of the Lease Year at the end of which the
Bills seek to end the Term. The effectiveness of such notice
shall be conditioned upon the payment, on or before the
Termination Date, by the Bills to the ECSC of the Termination Fee
for such Lease Year less that portion of the Recoupment Amount as
may have been agreed upon by the Bills and the ECSC on or before
the Termination Date. If it is later determined (either by the
agreement of the Bills and the ECSC or by a decision of the
arbitrators pursuant to Article 23 of this Stadium
Lease) that the Recoupment Amount is greater than the amount
actually deducted from the Termination Fee as provided in the
immediately preceding sentence, the ECSC shall promptly refund
said difference to the Bills. If (a) as of the Termination
Date, (i) Transfer of Ownership has occurred, or
(ii) the Bills have entered into a contract or other
agreement with any Person which contemplates Transfer of
Ownership, or (b) prior to the Termination Date, the Bills
have had discussions with any Person in contemplation of Transfer
of Ownership, and within one (1) year of the Termination Date,
(i) the Bills have entered into a contract or agreement with
such Person which contemplates Transfer of Ownership or
(ii) Transfer of Ownership to such Person has occurred, the
Termination Fee shall be one-hundred and fifty percent (150%) of
the amount that is otherwise due and payable pursuant to this Section 7.2.
The Bills obligation to pay the Termination Fee shall survive the
termination of this Stadium Lease.
7.3 Automatic Termination. In the
event the Construction Coordinating Agreement is terminated or
cancelled pursuant to the terms and conditions thereof, this
Stadium Lease and the Term shall automatically terminate as of
the end of the Lease Year in which such termination or
cancellation occurs and no party shall have any further rights or
obligations hereunder.
ARTICLE 8 PLAYERS' STRIKE
8.1 Effect of Players' Strike. If
as a result of a Players' Strike occurring during the first six
(6) Lease Years, any Home Game is not played at the Stadium, the
Game Day Expense Portion of any Operating/Game Day Expense
Reimbursement and any Working Capital Assistance previously paid
by the ECSC to the Bills for the Lease Year in which such
unplayed Home Game falls shall be promptly repaid to ECSC
pro-rata as follows: (a) for the Game Day Expense Portion, the
amount of such reimbursement for each unplayed Home Game shall be
calculated based upon a fraction, the numerator of which shall be
the total Game Day Expense Portion for such Lease Year, and the
denominator of which shall be the number of scheduled Home Games
for such Lease Year, and (b) for the Working Capital Assistance,
the amount of such reimbursement shall be calculated based upon a
fraction, the numerator of which $3,000,000 and the denominator
of which shall be the number of schedule Home Games for such
Lease Year.
ARTICLE 9 OPERATION OF THE STADIUM
COMPLEX
9.1 General Operation of the Stadium
Complex. Subject to the terms and conditions of this Stadium
Lease, including, but not limited to, Section 10.1 of
this Stadium Lease, the Bills shall have the exclusive right,
power, authority and obligation to direct all aspects of the
operation, repair, maintenance, management and control of the
Stadium Complex at all times during the Term acting on their own
behalf and not as an agent of either the County or the ECSC. The
Bills shall have such discretion in the operation, repair,
maintenance, management and control of the Stadium Complex as may
be needed to perform efficiently their responsibilities under
this Stadium Lease. Without limiting the generality of the
foregoing and without limiting the County's, the ECSC's and the
Bills' rights and obligations set forth elsewhere in this Stadium
Lease, during the Term, the Bills shall perform the following:
(a) Operate, repair and maintain the
Stadium Complex or cause the Stadium Complex to be operated,
repaired and maintained in good condition and repair and
otherwise in accordance with Applicable Law and NFL Rules and
Regulations, normal wear and tear and the Structural Repair
obligations of the County pursuant to Section 10.1 of
this Stadium Lease and Section 7.1 of the Master Lease
excepted;
(b) Establish and implement an annual
preventative maintenance program for the Stadium Complex
reasonably satisfactory to the ECSC and the County which shall
have as its principal objective minimization of Structural
Repairs and Operating Expenses;
(c) Regulate the use of the Stadium
Complex consistent with the provisions of Article 5 and,
in furtherance thereof, submit to the County and the ECSC prior
to the beginning of each fiscal year of the County an annual
operating plan for such fiscal year indicating the type and
nature of events that are then contemplated for the Stadium
Complex during such fiscal year (based on information then
available);
(d) Employ, engage, promote, discharge
and otherwise supervise and control the work of all employees,
and contract with all independent contractors, deemed necessary
or advisable by the Bills to discharge their responsibilities
with respect to the operation, repair, maintenance, management
and control of the Stadium Complex under this Stadium Lease;
(e) Procure and maintain throughout the
Term all Bills' Insurance Policies;
(f) Pay or cause to be paid all
Assessments (subject, however, to the terms and conditions of Article 20);
(g) Operate, repair, maintain, manage
and control the Access Roads;
(h) Contract for and manage all security
personnel and systems for the Stadium Complex and otherwise
control all aspects of access (including restricting access) to
the Stadium Complex;
(i) Provide and enter into contracts for
the furnishing to the Stadium Complex of (i) all utilities,
including electricity, gas, sewage, water and telephone,
(ii) cleaning and janitorial services and adequate dumpsters
and trash removal, (iii) elevator and boiler maintenance
service, air conditioning maintenance service and other equipment
maintenance service, (iv) laundry service, and (v) any and all
services deemed advisable by the Bills in conjunction with the
operation, repair, maintenance, management and control of the
Stadium Complex;
(j) Purchase all supplies and materials
regularly used and consumed in the operation, repair,
maintenance, management and control of the Stadium Complex;
(k) Obtain and maintain licenses and
permits in the operation, repair, maintenance, management and
control of the Stadium Complex in accordance with Applicable Law
(provided, however, that the Bills shall not be required to
obtain or maintain any licenses or permits that may be required
in connection with the management or operation of any Civic
Events which are not otherwise required in conjunction with the
Bills' general management and operation of the Stadium Complex);
(l) Impose and enforce such rules and
regulations governing use of the Stadium Complex as it may
establish from time to time (acting reasonably and subject to
prior consultation with the County and the ECSC with respect
thereto) to assist in ensuring the use of the Stadium Complex by
all Persons consistent with the terms of this Stadium Lease (with
a copy of such rules and regulations and any amendments thereto
to be furnished to the County and the ECSC promptly after the
promulgation thereof); and
(m) Maintain the Books and Records in
accordance with GAAP.
9.2 Other Stadium Complex Operations.
Subject to the terms and conditions of this Stadium Lease, and in
particular the limitations of Article 4 of this
Stadium Lease, the Bills shall have the exclusive right, power,
authority and obligation to direct all aspects of the operation,
management and control of the income or revenue producing
activity at the Stadium Complex at all times during the Term
acting on their own behalf and not as an agent of either the
County or the ECSC. The Bills shall have such discretion in the
operation, management and control of such activities as may be
needed to perform efficiently its responsibilities under this
Stadium Lease. Without limiting the generality of the foregoing
and without limiting the County's, the ECSC's and the Bills'
rights and obligations set forth elsewhere in this Stadium Lease,
during the Term, the Bills shall, at their sole cost and expense,
perform the following:
(a) Operate, repair and maintain the
Bills' Improvements and the Bills' equipment, personal property
and trade fixtures situated in or on the Stadium Complex, or
cause such property to be operated, repaired and maintained in
good condition and repair and otherwise in accordance with
Applicable Law and NFL Rules and Regulations, normal wear and
tear excepted;
(b) Select all concessionaires and
vendors (other than Unaffiliated Vendors) selling food,
beverages, novelties, souvenirs, programs, merchandise and wares
of any nature whatsoever in any part of the Stadium Complex;
(c) Operate or cause to be operated all
restaurants and other dining facilities located in the Stadium
Complex during all Stadium Events;
(d) Establish procedures, rules and
policies regarding employee relations, and all aspects of
advertising, publicity and promotion at the Stadium Complex; and
(e) Directly or through its Affiliates,
sell, market and establish the price of all admission tickets for
all Games and Bills Events.
9.3 Responsibility for Operating and
Game Day Expenses. Subject to the reimbursement provisions
provided for in Section 9.4 hereof, the Bills shall bear
all Operating Expenses and Game Day Expenses.
9.4 Reimbursement of Operating
Expenses and Game Day Expenses.
(a) Provided no Material Sublessee
Default has occurred and is continuing, during the Term, the ECSC
shall reimburse the Bills for Operating Expenses and Game Day
Expenses paid by the Bills in any given Lease Year up to the
Operating/Game Day Reimbursement Cap for such Lease Year. Any
portion of the Operating/Game Day Expense Reimbursement due Bills
hereunder which is not paid by the ECSC when due shall bear
interest at the Default Interest Rate from the date that said sum
was due until actually paid by the ECSC.
(b) Not later than forty-five (45) days
prior to each Operating/Game Day Expense Reimbursement Date, the
Bills shall submit to the ECSC a Voucher for disbursement of
Operating/Game Day Expense Reimbursement in the amount of the
applicable percentage shown on Schedule 9.4 attached
hereto. As a courtesy, contemporaneous with the delivery of such
Voucher to the ECSC, the Bills shall provide the County with a
copy thereof. Provided no Material Sublessee Default has occurred
and is continuing, on each such Operating/Game Day Expense
Reimbursement Date, the ECSC shall remit to the Bills funds equal
to the applicable percentage of the Operating/Game Day Expense
Reimbursement due on such date according to such schedule.
(c) As soon as practicable following the
conclusion of each Lease Year, but in no event later that the
one-hundred and twentieth (120th) day thereafter, the Bills'
chief financial officer shall deliver to the ECSC a summary
(together with appropriate back-up documentation) establishing
the actual amount of Operating Expenses and Game Day Expenses
paid by the Bills during such Lease Year. As a courtesy,
contemporaneous with the delivery of such summary and back-up
documentation to the ECSC, the Bills shall provide the County
with copies thereof. In the event such summary reveals that the
actual amount of Operating Expenses and Game Day Expenses paid by
the Bills during the preceding Lease Year is less than the total
of all Operating/Game Day Expense Reimbursement payments made by
the ECSC during such Lease Year, such excess reimbursement shall
be offset against the next quarterly Operating/Game Day Expense
Reimbursement payment to be paid by the ECSC to the Bills
hereunder, unless such excess reimbursement shall have occurred
during the last year of the Term, in which case such excess
reimbursement shall be immediately repaid to the ECSC by the
Bills (which repayment obligation shall survive the expiration or
earlier cancellation or other cessation of the Term).
(d) In the event that the ECSC objects
to any Operating Expense or Game Day Expense item as shown in
such officer's report, the ECSC shall notify the Bills of such
objection not less than sixty (60) days after the receipt of the
summary provided for in Section 9.4(c). If, within thirty
(30) days after the receipt of any such objection notice, the
Bills and the ECSC are unable to agree upon the propriety of such
Operating Expense or Game Day Expense item reimbursed to the
Bills hereunder, the ECSC may instruct the Bills to engage an
independent nationally recognized certified public accounting
firm reasonably acceptable to the ECSC to determine the propriety
of such Operating Expense or Game Day Expense item for
reimbursement hereunder. The Bills shall direct such accountants
(i) to deliver their report (which shall be addressed to the ECSC
and the Bills) to such parties within a reasonable period (and in
no event later than forty-five (45) days) after being notified to
proceed with their review; and (ii) to advise the ECSC and the
Bills in such report whether the disputed item was properly
reimbursed hereunder. The report of such accountants will be
binding upon the ECSC and the Bills. To the extent that such
accountants determine that any Operating Expense or Game Day
Expense item reimbursed to the Bills was ineligible for such
reimbursement, the amount of such ineligible reimbursement shall
be deducted from the next quarterly Operating/Game Day Expense
Reimbursement Payment to be paid by the ECSC to the Bills
hereunder. The costs and expenses of such accountants shall be
borne by the ECSC, unless such accountants shall have determined
that the Bills received reimbursement for any ineligible
Operating Expense items or ineligible Game Day Expense items
which in the aggregate exceed five thousand dollars ($5,000.00),
in which case the costs and expenses of such accountants shall be
borne by the Bills.
(e) If, as a proximate result of an
event of Force Majeure, the Stadium cannot practically, safely
and economically be used by the Bills for any Home Game, the Game
Day Expense Portion of any Operating/Game Day Expense
Reimbursement previously paid by the ECSC to the Bills for the
Lease Year in which such unplayed Home Game falls shall be
promptly repaid to the ECSC pro-rata for each unplayed Home Game
based upon a fraction, the numerator of which shall be the total
Game Day Expense Portion for such Lease Year and the denominator
of which shall be the number of scheduled Home Games for such
Lease Year. To the extent that a Force Majeure event occurring in
a previous Lease Year results in a Home Game in the subsequent
Lease Year not being played, the ECSC's obligation pay the Game
Day Expense Portion for such subsequent Lease Year shall be
suspended until such Force Majeure is eliminated. Upon such
elimination, the amount of the Game Day Expense Portion for such
subsequent Lease Year shall be prorated for each unplayed Home
Game based upon the formula set forth above and proportionately
paid to the Bills on each of the remaining Operating/Game Day
Expense Reimbursement Dates for such subsequent Lease Year.
(f) If in any Lease Year following the
commencement of the third (3rd) Lease Year, the casualty
insurance provided for in Section 18.6 is maintained,
the amount of Operating/Game Expense Reimbursement for such Lease
Year shall be reduced by the premium paid or to be paid for that
portion of such casualty insurance equal to the maximum amount of
the Termination Fee that could become due during such Lease Year
if the Bills were to exercise their buyout option pursuant to Section 7.2.
The amount of such premium allocable to the Termination Fee shall
be determined by multiplying the total insurance premium by a
fraction, the numerator of which shall be the maximum amount of
the Termination Fee that could become due in the applicable Lease
Year and the denominator of which shall be the total amount
insured; provided, however, that in Lease Years three through
six, the Termination Fee amount shall be based on the maximum
amount of the Termination Fee that could become due by the Bills
upon the exercise of their buyout option in the sixth (6th) Lease
Year.
9.5 Adjustment to Operating/Game Day
Expense Reimbursement Cap. On the Commencement Date and on
each Anniversary Date, the Operating/Game Day Expense
Reimbursement Cap for the upcoming Lease Year shall be adjusted
in accordance with this Section 9.5. If the Price Index
for the most recently available month is greater than the Price
Index as of December 31, 1996, then the Operating/Game Day
Expense Reimbursement Cap shall be multiplied by the percentage
difference between the Price Index for such most recently
available month and the Price Index as of December 31, 1996
and the product will be added to the Operating/Game Day Expense
Reimbursement Cap, which sum shall thereafter be the maximum
amount of Operating/Game Day Expense Reimbursement during the
ensuing Lease Year. For example, if the Price Index was 111 on
December 31, 1996 and 117 on the Commencement Date, the
Operating/Game Day Expense Reimbursement Cap during the first
Lease Year would be $3,072,568. Within sixty (60) days of each
adjustment to the Operating/Game Day Expense Reimbursement Cap
pursuant to this Section 9.5, the ECSC shall deliver
to the Bills a written statement setting forth such adjustments.
9.6 County's Obligation to Provide
Traffic Control and Police Enforcement. The County shall
provide the following services in connection with all Stadium
Events:
(a) Law enforcement personnel,
consistent with past practices, on the County owned rights-of-way
adjacent to the Stadium Complex;
(b) Law enforcement personnel,
consistent with past practices, for the security command post
located within the Stadium; and
(c) Pedestrian and vehicular traffic
control, consistent with past practices, on the public
rights-of-way adjacent to the Stadium Complex.
9.7 Access to the Books and Records.
At all times during the Term, the County, the ECSC and their
respective employees, agents and auditors shall have the right to
inspect the Books and Records in the Bills' administrative
offices at the Stadium Complex. All information contained in the
Books and Records shall be treated in a confidential manner,
provided, however, that the foregoing shall not be construed as
to impose any limitation on the disclosure of any information
contained therein if required by law or if made in conjunction
with any arbitration or litigation involving the Stadium
Agreements.
ARTICLE 10. THE COUNTY'S OBLIGATION TO REPAIR, REPLACE AND MAINTAIN
10.1 The County's Repair of Stadium
Complex. Throughout the Term, the County shall, pursuant to
Section 7.1 of the Master Lease, perform all necessary
Structural Repairs so as to keep the Stadium, the Administration
Building, the Field House and the Training Center in good
condition and repair, excepting only normal wear and tear, that
damage by Casualty for which the County has no obligation to
repair, restore and/or replace pursuant to Section 12.1
and damage caused by or resulting from the negligence or wrongful
act of the Bills, its employees, contractors, agents, licensees,
guests or invitees. To the extent that any repairs, whether
Structural Repairs or otherwise, are caused by or result from the
negligence or wrongful act of the Bills, its employees,
contractors, agents, licensees, guests or invitees, such repairs
shall be performed by the County, at the sole cost and expense of
the Bills, which expense shall not constitute an Operating
Expense or a Game Day Expense, or otherwise be eligible for
reimbursement as a Capital Improvement Expense. Notwithstanding
the foregoing, any Structural Repairs resulting from or
occasioned by an act of vandalism or negligence of any Stadium
Patron other than those involving the foundation, roof or
loadbearing walls of the Stadium Complex shall be performed by
the County, at the sole cost and expense of the Bills. Any
Structural Repairs resulting from or occasioned by an act of
vandalism or negligence of any Stadium Patron involving the
foundation, roof or loadbearing walls of the Stadium Complex
shall be performed by the County at its sole cost and expense.
10.2 Unspent Capital Improvement
Allowance.
(a) If at the end of any Lease Year,
there exists an Unspent Capital Improvement Allowance, such sum
shall be available thereafter for the payment of Capital
Improvement Expenses in accordance with this Section 10.2.
Either the County or the Bills may, from time to time, with the
approval of the other (such approval not to be unreasonably
withheld, conditioned or delayed) direct that the Unspent Capital
Improvement Allowance be used for the payment of Capital
Improvement Expenses; provided, however, the Capital Improvements
constructed therewith (i) do not materially change the overall
function or design of the Stadium Complex or shorten the useful
life thereof or materially change the aesthetics, sightlines,
structure or systems thereof; (ii) do not violate any Applicable
Law; and (iii) are made in compliance with the terms and
conditions of this Stadium Lease, including, but not limited to,
the terms and conditions of Article 15. Upon
installation or acquisition, as the case may be, title to all
Capital Improvements shall immediately vest in the County. Within
sixty (60) days of the receipt by either the County or the Bills
of a written request from the other for the construction of any
proposed Capital Improvement (which request shall be accompanied,
at a minimum, by conceptual drawings showing the proposed Capital
Improvement), the recipient shall notify the recommending Party
in writing of its approval or rejection of such proposed Capital
Improvement.
(b) In the event a proposed Capital
Improvement is rejected by the non-recommending Party, the
non-recommending Party's notification shall be accompanied by a
written explanation in reasonably sufficient detail outlining the
non-recommending Party's rationale for its disapproval. Either
Party may initiate arbitration in accordance with Article 23
of this Stadium Lease in order to resolve any issues associated
with any proposed Capital Improvement.
(c) In the event a proposed Capital
Improvement is approved by the non-recommending Party, except as
hereinafter provided, the County shall then cause such Capital
Improvement to be constructed. The ECSC and the Bills shall
cooperate fully with the County in all reasonable respects in
connection with such Capital Improvement project. The County
shall advise and consult with the Bills concerning the selection
of any architect, engineer, construction manager or general
contractor that will work on any Capital Improvement project and
shall submit to the Bills for its prior approval (such approval
not to be unreasonably withheld, conditioned or delayed), all
contracts with any such architect, engineer, construction manager
or general contractor. If so requested by the County, each
Contractor retained by the County for any Capital Improvement
project shall, prior to the commencement of such contractor's
work, furnish and maintain in full force and effect, from the
date of the construction contract to which it is a party until
the full performance of such contract, a performance bond and a
labor and material payment bond in the full amount of such
contract in form and substance and issued by a surety
satisfactory to the County. The bonds shall be in favor of the
County and shall conform in all respects to all requirements
imposed by Applicable Law, and if Applicable Law authorizes any
special form of labor and material payment bond that removes
mechanic's and similar liens from the Land, such form shall be
provided. All premiums for such bonds shall be paid out of the
Unspent Capital Improvement Allowance.
(d) Except as hereinafter provided, the
County shall pay all Capital Improvement Expenses incurred for
each approved Capital Improvement Project, but only to the extent
of the Unspent Capital Improvement Allowance.
(e) In the event either the County or
the Bills propose that all or any portion of an Unspent Capital
Improvement Allowance be used for any expenses in conjunction
with the Project, upon approval thereof by the non-recommending
Party in accordance with this Section 10.2, and the
deposit by the County with the ECSC of an amount equal to the
estimated Capital Improvement Expenses in connection therewith,
the construction work related thereto shall be effected by the
ECSC in accordance with the procedures outlined in the
Construction Coordinating Agreement. In such case, upon the
completion thereof, as evidenced by the delivery to the County by
the ECSC of a certificate of substantial completion from the
architect/engineer for the portion of the Project to which such
Capital Improvement relates, the ECSC shall pay all Capital
Improvement Expenses for such portion of the Project out of the
funds delivered by the County to the ECSC therefor. The ECSC
acknowledges that under Applicable Law, the County has the right
upon reasonable request to audit the ECSC's books and records
pertaining to the use of any portion of an Unspent Capital
Improvement Allowance in conjunction with the Project.
(f) Notwithstanding the foregoing, the
County shall be under no obligation to reimburse or incur any
Capital Improvement Expenses if, at the time the request for
reimbursement is made, any Lessee Default or Material Sublessee
Default has occurred and is continuing.
(g) If, as a proximate result of an
event of Force Majeure, the Stadium cannot practically, safely
and economically be used by the Bills for any Game, the Unspent
Capital Improvement Allowance, if any, shall be reduced pro rata
based upon the number of Games that are unable to be played at
the Stadium because of such event of Force Majeure.
(h) If at any time during the Term, the
Bills exercise their right of cancellation pursuant to Section 7.2
of this Stadium Lease, the County shall not have any further
obligations with respect to the approval, completion or funding
of any pending Capital Improvement projects.
(i) Nothing herein shall be construed so
as to require either the County or the Bills to expend all or any
portion of the Unspent Capital Improvement Allowance at the end
of the Lease Year to which such Unspent Capital Improvement
Allowance relates. In amplification and not in limitation of the
foregoing, to the extent any portion of an Unspent Capital
Improvement Allowance is not expended at the end of the Lease
Year to which it relates, the rights and obligations of the
County and the Bills with respect thereto shall remain in full
force and effect for the balance of the Term (i.e., the amount
not expended shall be carried over to the next Lease Year).
10.3 Calculation of Capital
Improvement Allowance. On each Anniversary Date, the Capital
Improvement Allowance for the upcoming Lease Year shall be
calculated in accordance with this Section 10.3. If the
Price Index for the most recently available month is greater than
the Price Index at the Commencement Date, then the Minimum
Capital Improvement Allowance shall be multiplied by the
percentage difference between the Price Index for such most
recently available month and the Price Index at the Commencement
Date, and the product will be added to the Minimum Capital
Improvement Allowance, which sum shall thereafter be the Capital
Improvement Allowance for the upcoming Lease Year. For example,
if the Price Index is 117 on the Commencement Date and 125 at the
end of the first Lease Year, the Capital Improvement Allowance
for the second Lease Year would be $2,243,590. Within thirty (30)
days of each Anniversary Date, the County shall deliver to the
ECSC and the Bills a written statement setting forth any
adjustments to the Capital Improvement Allowance pursuant to this
Section 10.3.
10.4 Limitation on Liability. The
ECSC will not be in default under this Stadium Lease, nor shall
the County or the ECSC be liable to the Bills or any other Person
for direct or consequential damage, or otherwise, for any failure
on the part of the County or the ECSC to supply any services
which the County or the ECSC has agreed to furnish during the
Term, provided the County or the ECSC, as the case may be, uses
reasonable diligence to supply such services. The County and the
ECSC reserve the right temporarily to discontinue such services
at such times as may be necessary by reason of an event of Force
Majeure and neither the County nor the ECSC will be liable for
damages to person or property or for injury to, or interruption
of, business for any discontinuance permitted under this Section 10.4,
nor will such discontinuance in any way be construed as an
eviction of the Bills or cause an abatement of rent or operate to
release the Bills from any of the Bills' obligations under this
Stadium Lease.
ARTICLE 11 THE ECSC'S FINANCIAL OBLIGATIONS TO THE BILLS
11.1 Working Capital Assistance.
On __________ ____, 1998, provided no Material Sublessee Default
has occurred and is continuing, the ECSC shall pay to the Bills
the amount of $3,000,000, which shall be used by the Bills for
working capital purposes. Provided the Lease has not been
terminated in accordance with Section 7.1 or as otherwise
permitted hereunder, and no Material Sublessee Default has
occurred and is continuing, on January 1, 1999, the ECSC shall
pay to the Bills the amount of $15,000,000, which shall be used
by the Bills for working capital purposes. Thereafter, beginning
on the sixth (6th) Anniversary Date and continuing on each
successive Anniversary Date, provided no Material Sublessee
Default has occurred and is continuing, the ECSC shall pay to the
Bills the amount of $3,000,000, which shall be used by the Bills
for working capital purposes. Notwithstanding the foregoing, if
as a result of an event of Force Majeure, the Stadium cannot
practically, safely and economically be used by the Bills for any
Home Game, any Working Capital Assistance previously paid by the
ECSC to the Bills for the Lease Year in which such unplayed Home
Game falls shall be promptly repaid to the ECSC pro-rata based
upon a fraction, the numerator of which shall be $3,000,000 and
the denominator of which shall be the number of scheduled Home
Games for such Lease Year. To the extent that a Force Majeure
event occurring in a previous Lease Year results in a Home Game
in the subsequent Lease Year not being played, the ECSC's
obligation to pay Working Capital Assistance due for such
subsequent Lease Year shall be suspended until such Force Majeure
is eliminated. Upon such elimination, the amount of Working
Capital Assistance for such subsequent Lease Year shall be
reduced pro-rata for each unplayed Home Game based upon the
formula set forth above and promptly paid to the Bills following
the calculation of such reduction. Any sum due the Bills under
this Section 11.1 which is not paid by the ECSC when due
shall bear interest at the Default Interest Rate from the date
that said sum was due until actually paid by the ECSC.
11.2 Repayment of Working Capital
Assistance. In the event this Stadium Lease is cancelled
pursuant to Section 7.1, the Bills will pay to the
ECSC the greater of (a) the amount the Working Capital
Assistance made by the ECSC to the Bills on the Commencement Date
less the Marketing Allowance, or (b) $2,000,000. Such
payment shall be made by the Bills in certified or immediately
available funds no later than January 1, 1999, and shall be
accompanied by appropriate back up documentation establishing the
amount of Marketing Expenses paid or incurred by the Bills prior
to such cancellation.
11.3 Repayment of Additional Rent.
Provided the ECSC shall have waived or does not exercise its
option to terminate the Construction Coordinating Agreement
pursuant to Section 3.3(c) thereof, and no Material Sublessee
Default has occurred and is continuing, the ECSC shall pay to
Suite Corp., within thirty (30) days of the notification by the
Bills pursuant to Section 7.1 of the achievement of
Satisfaction with the results of the Marketing Campaign, or the
waiver of the necessity therefor, the sum of Two Million Nine
Hundred Thirty-One Thousand Dollars ($2,931,000).
ARTICLE 12 DAMAGE AND DESTRUCTION
12.1 The County's Obligation to
Restore.
(a) Subject to the terms and conditions
of Section 12.1(d), if, at any time during the Term,
the Stadium Complex or any part thereof (other than Bills'
Improvements) shall be damaged or destroyed by a Casualty, except
as hereinafter provided in Sections 12.1(b) and 12.1(c),
the County shall commence and thereafter proceed as promptly as
possible to repair, restore and replace the damage to the Stadium
Complex as nearly as possible (subject to Section 30.15)
to its condition immediately prior to such Casualty. If, as a
proximate result of any Casualty, the Stadium cannot practically,
safely and economically be used by the Bills for any Game, the
Unspent Capital Improvement Allowance, if any, shall be reduced
pro-rata based upon the number of Games that are unable to be
played at the Stadium because of such Casualty.
(b) In the event of Major Casualty,
neither the County nor the ECSC shall have any obligation to
restore the Stadium Complex (i) if the Bills shall have
exercised any option to terminate the Stadium Lease pursuant to Section 7.2
or (ii) from and after the commencement of the third (3rd)
Lease Year, unless the Bills deliver to the County and the ECSC,
within ninety (90) days of the delivery by the County to the
Bills of a reconstruction and restoration plan, budget and
schedule, documentation reasonably satisfactory to the County
evidencing the waiver by the Bills of their right to terminate
this Stadium Lease pursuant to Section 7.2 for a
period of three (3) years following the substantial completion of
any such restoration. If, in such event, the Bills fail to
deliver such documentation, the terms and conditions of this
Stadium Lease, including, without limitation, Section 7.2
hereof, shall remain in full force and effect; provided, however,
that in the event the Bills exercise their buyout option in
accordance with Section 7.2, and the casualty
insurance provided for in Section 18.6 was in effect
at the time of such Major Casualty, the Termination Fee due in
connection with such buyout option shall be paid by the County to
the ECSC on behalf of the Bills out of the proceeds of such
insurance.
(c) Neither the County nor the ECSC
shall have any obligation to restore the Stadium Complex pursuant
to this Section 12.1 following an event of Casualty (i) if
such event of Casualty occurs during the first Lease Year and the
Bills have not delivered a notice in accordance with Section
7.1 evidencing either (1) the achievement of Satisfaction
with respect to the Marketing Campaign, or (2) the waiver of the
necessity therefor, or (ii) if such event of Casualty is caused
by or results from the negligence or deliberate act of the Bills,
their employees, contractors, agents, licensees, guests or
invitees.
(d) If prior to the completion of the
Project, all or any part of the Project or the portions of the
Stadium Complex to which the Project is affixed, annexed or
otherwise connected shall be damaged or destroyed by a Casualty,
then the ECSC, pursuant to Article 5 of the Construction
Coordinating Agreement, shall commence and thereafter proceed as
promptly as possible to repair, restore and replace the damage as
nearly as possible (subject to Section 30.15) to its
condition immediately prior to such Casualty.
12.2 The Bills' Obligation to Restore.
If in the event of Casualty, the County is obligated to restore
the Stadium Complex pursuant to Section 12.1 and, in
fact, commences such restoration, the Bills shall commence and
thereafter proceed as promptly as possible to repair, restore and
replace the damage to the Bills Improvements as nearly as
possible (subject to Section 30.15) to their
condition immediately prior to such Casualty.
12.3 New York Real Property Law
Section 227. The ECSC and the Bills hereby waive, in the
event of a Casualty, all rights under New York Real Property Law
Section 227.
ARTICLE 13 EMINENT DOMAIN
13.1 Condemnation of Stadium Complex.
If, at any time during the Term, a Taking occurs which results in
the appropriation of title to the whole or substantially all of
the Stadium Complex, this Stadium Lease shall automatically
terminate as of the date of such Taking. For purposes of this Article
13, "substantially all of the Stadium Complex"
shall be deemed to have been taken if, as a direct and proximate
result of the Taking: (a) the untaken portion cannot practically,
safely, and economically be used by the Bills for the Games; (b)
Stadium Patron access to the Stadium is prevented; (c) either the
general spectator seating capacity in the Stadium or the number
of Club Level Seats or the seating capacity within the Luxury
Suites is/are diminished to less than seventy-five percent (75%)
of that existing immediately prior to the Taking and either the
County determines that it is not commercially reasonable to
restore the same or the County fails to provide reasonable
assurances to the Bills within ninety (90) days following the
Taking that the County will restore the same to the satisfaction
of the Bills within two hundred and forty (240) days following
the Taking; (d) the capacity of the Parking Lots are reduced
to less than ninety percent (90%) of that existing immediately
prior to the Taking and the County is unable to provide
replacement parking on premises adjacent to the Stadium Complex;
or (e) the Stadium Complex no longer meets the applicable NFL
guidelines for NFL Stadia. The Bills shall have the right to
assert a separate claim against the condemning authority for:
(a) any loss or damage with respect to the Bills
Improvements; (b) the unrealized net profit of the Team for
the balance of the Term resulting from such Taking; and
(c) the value of the unexpired Term. If the Bills do not
elect to file a separate claim against the condemning authority,
the Bills shall receive, out of the award or awards paid to the
County and the ECSC on account of such Taking (including all
compensation for the Stadium Complex and improvements or portions
thereof taken, and damages, if any, to the parts of the Stadium
Complex and the Bills' Improvements not so taken), compensation
for any loss or damage with respect to the Bills' Improvements.
To the extent such award or awards includes any compensation for
the unrealized net profit of the Team for the balance of the Term
or the value of the unexpired Term, such compensation shall be
paid to the Bills. The balance of any such award or awards shall
be divided between the County and the ECSC on an equitable basis,
based upon the loss and damage suffered by each Party by reason
of such Taking.
13.2 Condemnation Proceeds. If,
at any time during the Term, a Taking occurs which affects less
than substantially all of the Stadium Complex, the Term shall not
be reduced, extended or affected in any way, and the following
provisions shall apply:
(a) The County shall commence and
thereafter proceed as promptly as possible (subject to Section
30.15) to repair, restore and replace the remaining part of
the Stadium Complex (other than the Bills' Improvements) as
nearly as possible to its former condition. Upon any such Taking,
all amounts or awards received by the County on account of such
Taking [including all compensation for the Stadium Complex or
portions thereof taken (other than the Bills Improvements), and
damages, if any, to the parts of the Stadium Complex (other than
the Bills Improvements) not taken] shall be used to pay for the
cost of such repair, restoration and replacement.
(b) The Bills shall have the right to
assert a separate claim against the condemning authority for:
(i) any loss or damage with respect to the Bills
Improvements; (ii) the unrealized net profit of the Team for
the balance of the Term resulting from such partial Taking; and
(iii) the value of the unexpired Term with respect to the
portion of the Stadium Complex so taken. Provided that the County
fulfills its obligations set forth under the first sentence of Section 13.2(a),
the Bills shall commence and thereafter proceed as promptly as
possible (subject to Section 30.15) to repair,
restore and replace the remaining portion of the Bills
Improvements as nearly as possible to their former condition. All
amounts or awards received by the Bills on account of the loss of
or damage to the Bills' Improvements which are attributable to
such Taking shall be used to pay for the costs of such repair,
restoration and replacement.
(c) Notwithstanding the foregoing,
neither the County nor the ECSC shall have any obligation to
restore the Stadium Complex (i) if the Bills shall have
exercised any option to terminate the Stadium Lease pursuant to Section 7.2,
or (ii) from and after the commencement of the third (3rd)
Lease Year, unless the Bills deliver to the County and the ECSC,
within thirty (30) days of the date on which title to the taken
property vests in the condemning authority, documentation
reasonably satisfactory to the County evidencing the waiver by
the Bills of their right to terminate this Stadium Lease pursuant
to Section 7.2 for a period of three (3) years
following the substantial completion of such restoration.
13.3 Condemnation Proceedings.
The County, the ECSC and the Bills shall have the right, at their
own expense, to appear in any condemnation proceeding and to
participate in any and all hearings, trials and appeals therein.
13.4 Notice of Condemnation. The
County, the ECSC and the Bills hereby agree that in the event the
County, the ECSC or the Bills shall receive notice of any
proposed or pending Taking, the party receiving such notice shall
promptly notify the other parties named in this Section 13.4.
13.5 Taking of a Limited Duration.
If, at any time during the Term, a Taking occurs which results in
the temporary appropriation of the whole or substantially all of
the Stadium Complex, whether for a fixed or indeterminate period,
the covenants of the Parties to perform their respective
obligations under the Stadium Agreements (including, but not
limited to, the payment of rent, Working Capital Assistance and
Operating/Game Day Expense Reimbursement) shall abate and suspend
during such period of time and any award pursuant to such Taking
or any price paid pursuant to a purchase and sale under threat of
Taking shall be divided equally among the Parties; provided,
however, that if the State (or any Affiliate thereof) or the
County (or any Affiliate thereof) is the condemning authority,
neither the ECSC, if the State (or any Affiliate thereof) is the
condemning authority, or the County, if the County (or any
Affiliate thereof) is the condemning authority, shall be excused
from the performance of its obligations hereunder or entitled to
any share of the award or other consideration paid on account of
such temporary Taking. If any such temporary Taking lasts for
more than one (1) year, the Bills shall have the right to
terminate this Stadium Lease upon not less than sixty (60) days'
notice to the County and the ECSC.
ARTICLE 14 QUIET ENJOYMENT
14.1 Covenant of Quiet Enjoyment.
The ECSC covenants and warrants that the Bills, on performing and
observing all of its covenants and agreements contained in this
Stadium Lease, shall and may peaceably and quietly have, hold,
occupy, use and enjoy, and shall have the full, exclusive and
unrestricted use and enjoyment of, all of the Stadium Complex
during the Term, and may exercise all of its rights hereunder,
subject only to the provisions of this Stadium Lease.
ARTICLE 15 ALTERATIONS
15.1 General. The Bills shall
have the right, at their own expense without the County's or the
ECSC's consent, to make such non-structural alterations, changes
and improvements to the Stadium Complex and install such trade
fixtures as the Bills may deem necessary; provided, however, that
any such alterations, changes, improvements and fixtures
(a) do not materially change the overall function or design
of the Stadium Complex or shorten the useful life thereof or
materially change the aesthetics, sightlines, structure or
systems thereof, and (b) do not violate Applicable Law. The
Bills shall not make any structural alterations, changes or
improvements to the Stadium Complex without the County's and the
ECSC's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed. All alterations,
changes, improvements and fixtures installed by the Bills at the
Stadium Complex shall remain the property of the Bills throughout
the Term and the Bills shall have the right to the depreciation
on such alterations, changes, improvements and fixtures.
ARTICLE 16 ASSIGNMENT AND SUBLETTING
16.1 Assignment and Subletting
Prohibited. Without the prior written consent of the County
and the ECSC, except as herein provided in Section 26.1,
the Bills will not assign or otherwise convey this Stadium Lease
nor, except as hereinafter provided in Section 16.3,
sublease the whole or any part of the Stadium Complex to any
Person other than a Permitted Assignee. No permitted assignment
or subletting of the Stadium Complex or any part thereof will be
deemed: (a) a waiver of the provisions of this Section 16.1;
(b) the acceptance of such assignee or subtenant as a substitute
or replacement for the Bills; or (c) a release of the Bills from
the further performance by the Bills of the covenants on the part
of the Bills contained in this Stadium Lease. The consent by the
County or the ECSC to an assignment or sublease will not be
construed to relieve the Bills from obtaining either such Party's
prior written consent to any further assignment or subletting. No
permitted subtenant may assign or encumber its sublease or
further sublease all or any portion of its subleased space, or
otherwise permit the subleased space or any part of its subleased
space to be used or occupied by others, without the County's and
the ECSC's prior written consent in each instance.
16.2 Submission of Information.
If the Bills request the County's or the ECSC's consent to a
specific assignment or subletting, the Bills will submit in
writing to the County and the ECSC: (a) the name and address of
the proposed assignee or subtenant; (b) the business terms of the
proposed assignment or sublease; (c) reasonably satisfactory
information as to the nature and character of the business of the
proposed assignee or subtenant, and as to the nature of its
proposed use of the space; (d) banking, financial or other credit
information reasonably sufficient to enable the County and the
ECSC to determine the financial responsibility and character of
the proposed assignee or subtenant; and (e) the proposed form of
assignment or sublease.
16.3 Permitted Subletting.
Provided no Material Sublessee Default shall have occurred and be
continuing, the Bills shall have the right, without the consent
of either the County or the ECSC, to sublease all or any portion
of the Stadium Complex: (a) to an Affiliate of the Bills for any
purpose permitted by Section 5.1; (b) to any other Person
for the purpose of staging a single entertainment event (such as
a concert) or (c) to any other Person for the purpose of keeping
or maintaining a professional sports franchise (other than an NFL
football team or a professional baseball franchise) at the
Stadium.
ARTICLE 17 INDEMNIFICATION
17.1 Indemnification of the County
and Affiliates by the Bills. Except to the extent that any
injury or damage to persons or property on the Stadium Complex is
caused by or results from the negligence or deliberate act of the
County, any Affiliate of the County or their respective
employees, contractors, agents, guests or invitees, the Bills
will neither hold nor attempt to hold the County, any Affiliate
of the County or their respective employees or agents liable for,
and the Bills will indemnify, defend and hold harmless the
County, all Affiliates of the County and their respective
employees and agents from and against, any and all Losses
incurred in connection with or arising from: (i) the use or
occupancy or manner of use or occupancy of the Stadium Complex by
the Bills or their employees, agents, contractors or invitees or
any Person claiming under the Bills or their employees, agents,
contractors or invitees; (ii) any activity, inactivity, work
or thing done or permitted by the Bills or their employees,
agents, contractors or invitees in or about the Stadium Complex;
(iii) any breach by the Bills or their employees, agents,
contractors or invitees of this Stadium Lease; and (iv) any
injury or damage to the person, property or business of the
Bills, their employees, agents, contractors or invitees entering
upon the Stadium Complex under the express or implied invitation
of the Bills. If any action or proceeding is brought against the
County, any Affiliate of the County, or their respective
employees or agents by reason of any such claim for which the
Bills has indemnified any party hereunder, the Bills, upon
written notice from such indemnified party will defend the same
at the Bills' expense, with counsel reasonably satisfactory to
such indemnified party.
17.2 Indemnification of the ECSC and
Affiliates by the Bills. Except to the extent that any injury
or damage to persons or property on the Stadium Complex is caused
by or results from the negligence or deliberate act of the ECSC,
any Affiliate of the ECSC or their respective employees,
contractors, agents, guests or invitees, the Bills will neither
hold nor attempt to hold the ECSC, any Affiliates of the ECSC or
their respective employees or agents liable for, and the Bills
will indemnify, defend and hold harmless the ECSC, all Affiliates
of the ECSC or their respective employees and agents from and
against, any and all Losses incurred in connection with or
arising from: (i) the use or occupancy or manner of use or
occupancy of the Stadium Complex by the Bills or any Person
claiming under the Bills or their employees, agents, contractors
or invitees; (ii) any activity, inactivity, work or thing
done or permitted by the Bills or their employees, agents,
contractors or invitees in or about the Stadium Complex;
(iii) any breach by the Bills or their employees, agents,
contractors or invitees of this Stadium Lease; and (iv) any
injury or damage to the person, property or business of the
Bills, their employees, agents, contractors or invitees entering
upon the Stadium Complex under the express or implied invitation
of the Bills. If any action or proceeding is brought against the
ECSC, any Affiliate of the ECSC or their respective employees or
agents by reason of any such claim for which the Bills has
indemnified any party hereunder, the Bills, upon written notice
from such indemnified party will defend the same at the Bills'
expense, with counsel reasonably satisfactory to such indemnified
party.
17.3 Indemnification of the Bills and
Affiliates by the County. Except to the extent that any
injury or damage to persons or property on the Stadium Complex is
caused by or results from the negligence or deliberate act of the
Bills, any Affiliate of the Bills or their respective employees,
contractors, agents, sublessees, sublicensees, guests or
invitees, and subject to the provisions of Section 18.2(c),
the County will neither hold nor attempt to hold the Bills, any
Affiliates of the Bills or their respective employees or agents
liable for, and the County will indemnify, defend and hold
harmless the Bills, all Affiliates of the Bills or their
respective employees and agents from and against, any and all
Losses incurred in connection with or arising from any Civic
Event sponsored by the County pursuant to Section 2.3 of
this Stadium Lease. If any action or proceeding is brought
against the Bills, any Affiliate of the Bills or their respective
employees or agents by reason of any such claim for which the
County has indemnified any party hereunder, the County, upon
written notice from such indemnified party will defend the same
at the County's expense, with counsel reasonably satisfactory to
such indemnified party.
17.4 Indemnification of the ECSC and
Affiliates by the County. Except to the extent that any
injury or damage to persons or property on the Stadium Complex is
caused by or results from the negligence or deliberate act of the
ECSC, any Affiliate of the ECSC or their respective employees,
contractors, agents, guests or invitees, the County will neither
hold nor attempt to hold the ECSC, any Affiliates of the ECSC or
their respective employees or agents liable for, and the County
will indemnify, defend and hold harmless the ECSC, all Affiliates
of the ECSC or their respective employees and agents from and
against, any and all Losses incurred in connection with or
arising from any Civic Event sponsored by the County
pursuant to Section 2.3 of this Stadium Lease. If any
action or proceeding is brought against the ECSC, any Affiliate
of the ECSC or their respective employees or agents by reason of
any such claim for which the County has indemnified any party
hereunder, the County, upon written notice from such indemnified
party will defend the same at the County's expense, with counsel
reasonably satisfactory to such indemnified party.
17.5 Indemnification of the Bills and
Affiliates by the ECSC. Except to the extent that any injury
or damage to persons or property on the Stadium Complex is caused
by or results from the negligence or deliberate act of the Bills,
any Affiliate of the Bills or their respective employees,
contractors, agents, sublessees, sublicensees, guests or
invitees, and subject to the provisions of Section 18.2(c),
the ECSC will neither hold nor attempt to hold the Bills, any
Affiliates of the Bills or their respective employees or agents
liable for, and the ECSC will indemnify, defend and hold harmless
the Bills, all Affiliates of the Bills or their respective
employees and agents from and against, any and all Losses
incurred in connection with or arising from any Civic Event
sponsored by the ECSC pursuant to Section 2.3 of this
Stadium Lease. If any action or proceeding is brought against the
Bills, any Affiliate of the Bills or their respective employees
or agents by reason of any such claim for which the ECSC has
indemnified any party hereunder, the ECSC, upon written notice
from such indemnified party will defend the same at the ECSC's
expense, with counsel reasonably satisfactory to such indemnified
party.
17.6 Indemnification of the County
and Affiliates by the ECSC. Except to the extent that any
injury or damage to persons or property on the Stadium Complex is
caused by or results from the negligence or deliberate act of the
County, any Affiliate of the County or their respective
employees, contractors, agents, guests or invitees, the ECSC will
neither hold nor attempt to hold the County, any Affiliates of
the County or their respective employees or agents liable for,
and the ECSC will indemnify, defend and hold harmless the County,
all Affiliates of the County or their respective employees and
agents from and against, any and all Losses incurred in
connection with or arising from any Civic Event sponsored by
the ECSC pursuant to Section 2.3 of this Stadium Lease. If
any action or proceeding is brought against the County, any
Affiliate of the County or their respective employees or agents
by reason of any such claim for which the ECSC has indemnified
any party hereunder, the ECSC, upon written notice from such
indemnified party will defend the same at the ECSC's expense,
with counsel reasonably satisfactory to such indemnified party.
17.7 Survival. The provisions of
this Article 17 will survive the expiration, termination
or cancellation of this Stadium Lease.
ARTICLE 18 INSURANCE
18.1 Bills' Insurance. During the
Term, the Bills, at their sole cost and expense, shall keep and
maintain in full force and effect a policy or policies containing
the following types of coverages, deductibles, limits and other
terms:
(a) Property insurance covering loss or
damage to the Bills' Improvements and to all of the Bills'
furniture and fixtures, machinery, equipment and any other
personal property owned and used in the Bills' business and found
in, on or about the Stadium Complex, for the full replacement
cost value (or at least 90% thereof), with any coinsurance
provision waived by an agreed amount clause, on an "all
risks" basis (coverage for flood and earthquake is
optional). Such "all risks" coverage may be subject to
a reasonable deductible, but that deductible shall not exceed
$25,000 without the prior approval of the County and ECSC.
(b) Commercial general liability
insurance (on an "occurrence" basis) for third-party
liability arising in connection with the Stadium Complex with
coverage and limits of not less than the following (and subject
to a deductible of not more than $100,000 without prior approval
of the County and ECSC):
|
Bodily Injury & Property Damage
Limit | $1,000,000 each occurrence |
| Products/Completed Operations Limit
| $1,000,000 aggregate |
| Personal Injury and Advertising
| $1,000,000 each person or organization |
| General Aggregate Limit | $2,000,000 each
location |
Exclusions for the following coverages are not permissible: Products/Completed Operations and Contractual Liability.
(c) Automobile liability insurance with
coverage and limits of not less than the following:
Owned, Hired and Non-Owned Autos (Symbol "1" on Business Auto policies) Combined Single Limit for Bodily Injury and Property Damage -
$1,000,000 each accident
(d) Workers' compensation and employers'
liability insurance providing statutory coverage complying with
the New York Workers' Compensation Law.
(e) Excess "umbrella"
liability insurance (on an "occurrence" basis) with
coverage and limits of not less than the following:
Combined Single Limit for Bodily Injury, Personal Injury and Property Damage -
[$__________] each occurrenceand aggregate
(Coverage to be excess of required coverages under Sections 18.1(b), (c) and (d) and the Certificate of Insurance required per Section 18.2(h) must clearly so reflect)
(f) Business interruption insurance in
an amount sufficient to provide for the payment of Working
Capital Assistance and the Game Day Expense Portion of Operating
Expense and Game Day Expense Reimbursement in the event of an
abatement or reduction of either such payment in accordance with
either Section 11.1 or 9.4(e).
18.2 Requirements of the Bills'
Insurance Policies.
(a) Each Bills' Insurance Policy shall
be with companies that are nationally recognized and, if
underwriting primary coverage, that have a policyholder's rating
of at least "A" and a "FSC" rating of at
least "XII" as listed at the time of issuance by A. M. Best
Insurance Reports, or such other ratings as the County and
the Bills may mutually agree, and are qualified to issue such
insurance in New York State.
(b) Each Bills' Insurance Policy shall
be endorsed to provide that it may not be canceled, terminated,
reduced or materially changed unless at least sixty (60) days'
advance notice thereof has been provided to the County and the
ECSC, except in the case of cancellation or termination due to a
lapse for non-payment, in which case only ten (10) days' advance
notice shall be required.
(c) Each Bills' Insurance Policy shall
include waivers of any recourse against the County and the ECSC
for payment of any premiums or assessments under such policy.
The County and ECSC shall not be liable
to the Bills for any loss or damage to real or personal property
occurring at or on the Stadium Complex, whether or not caused by
the negligence or other fault of the County and ECSC or of their
respective agents, employees, licensees or assignees and,
further, this provision shall apply notwithstanding any other
provision herein. This release shall apply only to the extent
that such loss or damage is covered by insurance, and the Bills
shall use commercially reasonable efforts to secure from their
respective property insurers permission to waive such rights of
recovery. If such waiver shall in any way serve to void the
insurance coverage otherwise available, then this provision shall
be deemed inapplicable.
(d) Each Bills' Insurance Policy
covering third-party liability shall contain a
"cross-liability" endorsement or a "severability
of interests" endorsement providing that coverage, to the
maximum amount of the policy, shall be available despite any suit
between the insured and any additional insured under such policy.
(e) The County, ECSC and ESDC must be
named as additional insureds, on a direct primary basis, under
all the policies listed in Sections 18.1(b) and (e)
above.
The insurance required hereunder shall
be primary insurance and the insurer shall be liable for the full
amount of any loss up to the total limit of liability required
without the right of contribution of any other insurance coverage
held by any other entity named as an additional insured.
(f) Each Bills' Insurance Policy
containing liability coverage shall contain an endorsement
specifying the Stadium Agreements as "insured
contracts."
(g) It is expressly understood and
agreed by the Bills that the insurance requirements specified
above contemplate the use of occurrence liability forms. If
claims-made coverage is evidenced to satisfy any of these
requirements, the Bills shall be subject to additional
requirements as may be reasonably imposed by the County or ECSC
to avoid any potential lapse in protection which is inherent in
the use of claims-made coverage.
(h) The Bills shall deliver, or cause to
be delivered, to the County and the ECSC certificates of
insurance and any other documentation reasonably required by the
County and the ECSC evidencing the existence of the Bills
Insurance Policies and the various required amendments specified
in Sections 18.2(b), (c), (d), (e) and (f), such
delivery to be made at least three (3) business days prior to the
Commencement Date. Within twenty-one (21) days after the issuance
of any additional policies or amendments or supplements to any of
the Bills Insurance Policies that materially impacts the
protection afforded to the County or ECSC, the Bills shall
deliver to the County and the ECSC revised certificates of
insurance reflecting any such addition, amendment or supplement.
With respect to any Bills' Insurance Policy that expires by its
terms prior to the expiration of the Term, the Bills shall
deliver to the County and the ECSC certificates of insurance and
any other documentation reasonably required by the County and the
ECSC evidencing the existence of the renewal or replacement of
such Bills' Insurance Policy, such delivery to be made at least
three (3) business days prior to the expiration of such Bills'
Insurance Policy; provided that the Bills may instead deliver a
facsimile of the binder of insurance, such facsimile delivery to
be made on or prior to the expiration of such insurance policy,
and within ten (10) days after the expiration of such insurance
policy, the actual certificate of insurance and any other
required documentation shall be furnished to the County and the
ECSC.
18.3 Reevaluation of Policy Terms and
Limits. The County, the ECSC and the Bills shall meet from
time to time (but no less frequently than once every three years)
to review the adequacy of the dollar limits and other terms set
forth of the Bills Insurance Policies, and the dollar limits and
other terms shall be increased as mutually agreed upon by the
parties to take into account changes, if any, in circumstances
and other relevant factors (including, without limitation,
inflation, claims history, changes in law and insurance markets)
since the policies' dollar limits were initially established or
last adjusted, as applicable.
18.4 Adequacy of Coverage. The
Bills acknowledge that neither the County, the ECSC nor their
respective agents or employees have made any representations that
the insurance to be carried by the Bills pursuant to this Article
18 is adequate to protect the Bills or their properties. If
the Bills believe that any such insurance coverage is inadequate,
the Bills may obtain such additional insurance coverage as the
Bills deem adequate, at their sole cost and expense.
18.5 Additional Policies. If,
during the Term, the Bills purchase or otherwise procure any
commercial general liability, employer's liability, automobile
liability or umbrella liability insurance coverage in excess of
the coverage mandated by Section 18.1, such additional
coverage shall be subject to the terms, conditions and
limitations of subparagraphs (a) through (h) of Section 18.2
18.6 Casualty Insurance. Provided
that the premiums therefor do not exceed the Casualty Insurance
Premium Cap, during the Term, the County shall keep and maintain
a policy of comprehensive casualty and property insurance against
any and all losses or damages to the Buildings (other than the
portions thereof constituting Bills' Improvements) in an amount
not less than eighty percent (80%) of the full replacement value
thereof on an "all risks" basis, subject to such
deductibles as the County in its sole discretion may elect or
determine. Except as provided in Section 12.1(b), in
no event shall the proceeds of any such insurance be for the
benefit of, be available to or be paid to ECSC or the Bills.
ARTICLE 19 END OF TERM
19.1 End of Term. Upon the
expiration or termination of the Term, the Bills shall peaceably
deliver up and surrender the Stadium Complex to the ECSC in good
condition, order and repair, Casualty, normal wear and tear and
any Structural Repairs for which the County is responsible
pursuant to Section 10.1 of this Stadium Lease or
Section 7.1 of the Master Lease excepted. At the end of the
Term, at the request of the County, the Bills shall deliver to
the County any plans, drawings, specifications, computer
programs, manuals, written materials, maintenance logs and other
items of equipment and personal property used by the Bills in
conjunction with the operation, repair, maintenance, management
and control of the Stadium Complex which are not reasonably
capable of being used or adopted for another purpose (e.g.,
specialized tools for the Jumbotron). To the extent that any of
the foregoing items were not part of the Project and the Bills
were not otherwise reimbursed for the cost thereof by way of
Operating/Game Day Expense Reimbursement, the County shall
reimburse the Bills for the fair market value of any such
requested items.
19.2 Alterations and Improvements.
Upon the expiration or termination of the Term, all alterations,
installations, changes, replacements, additions or improvements
that (a) have been made by the Bills to the Stadium Complex and
(b) cannot be removed without material damage (other than damage
to be repaired by the Bills as contemplated by Section 19.3)
to the remainder of the Stadium Complex, shall be deemed a part
of the Stadium Complex and the same shall not be removed.
19.3 Personal Property and Trade
Fixtures. Upon the expiration or termination of the Term, the
Bills shall remove all personal property and trade fixtures
installed by the Bills at the Stadium Complex, and shall repair
any damage caused to the Stadium Complex due to the removal of
such property. If the Bills fail to remove such property within
ten (10) days of the expiration or termination of the Term, such
property shall be deemed abandoned. In such event, the County
may, at its option, (a) cause any such abandoned property to be
removed at the expense of the Bills, (b) sell all or any part of
such property at public or private sale, without notice to the
Bills, and/or (c) declare that title to such property shall be
deemed to have passed to the County.
19.4 Termination Documentation.
Upon the expiration or termination of the Term and performance of
all obligations required of the ECSC hereunder, the Bills shall
immediately upon the request and at expense of the ECSC or the
County, deliver a release of any instruments of record evidencing
this Stadium Lease, and a quitclaim deed conveying to the County
all of the Bills' right, title and interest in and to the Stadium
Complex.
ARTICLE 20 TAXES AND ASSESSMENTS
20.1 General Levy Taxes. Under
Applicable Law as of the Commencement Date, the Stadium Complex,
by virtue of the County's ownership thereof, is exempt from all
general levy ad valorem real estate taxes and assessments. To the
extent that any such taxes and assessments are imposed on or with
respect to the Stadium Complex by any Governmental Authority
during the Term, such taxes and assessments, pursuant to
Article 15 of the Master Lease, shall be paid by the County.
20.2 Bills' Obligation to Pay
Assessments. The Bills covenant and agree to pay as Operating
Expenses, all Assessments on or before the date on which such
Assessments would be deemed delinquent.
20.3 Contest by the Bills. The
Bills shall have the right to contest any Assessment in good
faith, at its own cost and expense, provided, however, that
notwithstanding such contest, the Bills shall not take any action
which would adversely affect, threaten or jeopardize the interest
of the County or the ECSC in the Stadium Complex or any part
thereof. In the event of any such contest by the Bills, the ECSC
agrees to reasonably cooperate with the Bills.
20.4 Adjustments for Partial Lease
Years. For the first and last Lease Years of the Term, the
portion of all Assessments to be paid by the Bills shall be pro
rated, depending on the proportion which each such Lease Year
shall bear to the tax year in which it falls.
20.5 Imposition of Additional Taxes.
(a) If, during the first six (6) Lease
Years, the County or any municipality located within Erie County,
New York imposes or assesses any new or additional sales tax,
user charge, ticket charge or service fee on the Bills or the
revenue derived by the Bills from the sale of admission tickets
at the Stadium Complex, the Operating/Game Day Expense
Reimbursement Cap shall be increased by the amount paid by the
Bills on account of any such tax, charge or fee.
(b) If, during the first six (6) Lease
Years, the State imposes or assesses any new or additional sales
tax or admission or ticket tax on the Bills or the revenue
derived by the Bills from the sale of admission tickets at the
Stadium Complex, the Termination Fee otherwise payable by the
Bills hereunder shall be reduced by the aggregate amount paid by
the Bills on account of any such tax.
ARTICLE 21 ENVIRONMENTAL MATTERS
21.1 Bills' Environmental
Indemnification. The Bills covenant and agree that they will
not use, generate, store, release or dispose of any Hazardous
Substances at the Stadium Complex except in compliance with all
Applicable Laws. The Bills will defend, indemnify and hold
harmless the County, the ECSC, their Affiliates and their
respective employees and agents from and against any and all
Losses, arising out of (i): (a) the presence of, the Release
or threatened Release into the Environment of, or exposure to,
any Hazardous Substance on, at or under the Stadium Complex;
(b) the generation, manufacture, processing, distribution,
use, handling, transportation, storage, treatment or disposal of
any Hazardous Substance on, at or under the Stadium Complex;
(c) the violation or alleged violation of any Environmental
Laws with respect to the Stadium Complex; (d) the
non-compliance or alleged non-compliance with any Environmental
Laws with respect to the Stadium Complex; or (e) the Bills'
failure to promptly undertake and diligently pursue to completion
all response or corrective action with respect to a Release or
threatened Release of any Hazardous Substance on, at or under the
Stadium Complex, and any Proceeding incident to any of the
foregoing; and (ii) all Environmental Claims, and Losses
resulting from, relating to or arising out of Environmental
Claims, and any Proceedings incident to any of the foregoing.
Notwithstanding the foregoing, it is acknowledged and agreed that
the obligation of the Bills to defend, indemnify and hold
harmless shall not extend to events described in the preceding
sentence (i) which occurred prior to the date on which the
Bills commenced occupancy of the Stadium pursuant to the terms of
the Original Lease or (ii) which occur from and after the
Lease Date on account of a Civic Event.
21.2 Survival. The provisions of
this Article 21 will survive the expiration or
termination of this Stadium Lease.
ARTICLE 22 ESTOPPEL CERTIFICATES
22.1 Bills' Certificate. The
Bills shall at any time and from time to time, within ten (10)
days of the receipt of a written request from the County or the
ECSC, execute, acknowledge, and deliver to the requesting party a
statement in writing certifying: (a) that this Stadium Lease
has not been amended and is in full force and effect (or, if
amended, stating the nature of such amendment and certifying that
this Stadium Lease, as so amended, is in full force and effect);
(b) the dates to which any rent due hereunder has been paid;
(c) that there are not, to the Bills' knowledge, any uncured
defaults on the part of the Bills hereunder, and no events or
conditions then in existence which, with the passage of time or
notice or both, would constitute a default on the part of either
the County or the ECSC hereunder, or specifying such defaults,
events, or conditions, if any are claimed; and (d) such
other information as may be reasonably required by the requesting
party.
22.2 ECSC's Certificate. The ECSC
shall at any time and from time to time, within ten (10) days of
receipt of prior written notice from the Bills, executed,
acknowledge, and deliver to the Bills a statement in writing
certifying: (a) that this Stadium Lease has not been amended
and is in full force and effect (or, if amended, stating the
nature of such amendment and certifying that this Stadium Lease,
as so amended, is in full force and effect); (b) that there
are not, to the ECSC's knowledge, any uncured defaults on the
part of the ECSC hereunder, and no events or conditions then in
existence which, with the passage of time or notice or both,
would constitute a default on the part of the Bills hereunder, or
specifying such defaults, events, or conditions, if any are
claimed; and (c) such other information as may be reasonably
required by the Bills.
ARTICLE 23 DISPUTE RESOLUTION
23.1 Arbitration. All disputes
arising under or relating to the Franchise Maintenance Covenants,
or the breach or threatened breach thereof, shall be settled by
an action or proceeding in a court of competent jurisdiction. All
other disputes arising under or relating to the Stadium
Agreements, or the breach or threatened breach thereof, shall be
settled by arbitration, conducted in Buffalo, New York in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association as follows:
(a) Arbitration will be commenced by a
written demand made by any Party upon the other Parties.
(b) The arbitration will be submitted to
three arbitrators selected by those Parties electing to appear in
the arbitration from the lists of highly experienced commercial
arbitrators maintained by the American Arbitration Association,
which may include arbitrators on its Large Complex Case Panel,
and who reside in any of the states contiguous to New York State
(i.e., Pennsylvania, New Jersey, Connecticut, Massachusetts and
Vermont). In the event that an insufficient number of qualified
arbitrators are available from states contiguous to the State of
New York, such that the Parties electing to appear in the
arbitration are unable to agree upon a panel of three arbitrators
from said states within forty-five (45) days following the filing
of the demand for arbitration, additional arbitrators will be
drawn from the national list of arbitrators maintained by the
American Arbitration Association, but not from the states of New
York, Michigan or Florida.
(c) The arbitrators will not have power
to add to, modify, detract from, terminate or otherwise alter in
any way the provisions of the Stadium Agreements. No arbitrator
may make an award of punitive or exemplary damages.
(d) The arbitrating Parties will each
pay for the services of its attorneys and witnesses, plus its
proportionate share of the costs relating to the arbitration.
(e) The decision of the arbitrators
shall be entered with a court of competent jurisdiction and will
be enforced according to the laws of the State of New York.
ARTICLE 24 SUBLESSEE DEFAULT
24.1 Events of Sublessee Default.
Any of the following events shall constitute a "Sublessee
Default":
(a) The Bills breach any of the
Franchise Maintenance Covenants;
(b) The Bills default in the due and
punctual payment of rent, and such default continues for fifteen
(15) days after written notice from the ECSC;
(c) The Bills breach any of the other
agreements, terms, covenants or conditions set forth in this
Stadium Lease that the Bills are required to perform or observe,
and such breach continues for a period of thirty (30) days after
written notice from the ECSC or the County to the Bills or, if
such breach cannot be cured reasonably within such thirty (30)
day period, if the Bills fail to diligently commence to cure such
breach within thirty (30) days after written notice from the ECSC
or the County and to diligently complete such cure thereafter.
(d) The Bills breach any of the
agreements, terms, covenants or conditions set forth in the
Construction Coordinating Agreement or the Design Funding
Agreement that the Bills are required to perform or observe
pursuant to the terms thereof and said breach continues beyond
any applicable notice and cure period provided for in such
agreement.
(e) This Stadium Lease or the Stadium
Complex or any part of the Stadium Complex is taken upon
execution or by other process of law directed against the Bills,
or are taken upon or subject to any attachment by any creditor of
the Bills or claimant against the Bills, and said attachment is
not discharged or disposed of within ninety (90) days after its
levy;
(f) The Bills file a petition in
bankruptcy or insolvency or for reorganization or arrangement
under the bankruptcy laws of the United States or under any
insolvency act of any state, or admit the material allegations of
any such petition by answer or otherwise, or are dissolved or
make an assignment for the benefit of creditors;
(g) Involuntary proceedings under any
such bankruptcy law or insolvency act or for the dissolution of
the Bills are instituted against the Bills, or a receiver or
trustee is appointed for any material portion of the property of
the Bills, and such proceeding is not dismissed or such
receivership or trusteeship vacated within ninety (90) days after
such institution or appointment;
24.2 The ECSC's Remedies. If any
one or more Sublessee Defaults occur, the ECSC has the right,
subject to the terms and conditions of Section 6.5,
at its election:
(a) To discharge, pay or otherwise
perform the obligation of the Bills giving rise to such Sublessee
Default, and all amounts paid by the ECSC and all costs and
expenses incurred by the ECSC in connection with the discharge,
payment or performance of any such obligation (together with
interest at the Default Interest Rate from the date of payment by
the ECSC) will either, at the option of the ECSC, (i) be
payable by the Bills to the ECSC on demand, or (ii) be
offset by the ECSC against the next payment or payments to be
made by the ECSC pursuant to this Stadium Lease;
(b) To give the Bills ninety (90) days'
written notice of the expiration of the Term and upon the giving
of such notice and the expiration of such ninety (90) day period,
the Bills' right to possession of the Stadium Complex will cease
and this Stadium Lease will be terminated, except as to the
Bills' liability for the payment of any financial obligations
accruing hereunder prior to the date of such termination,
including, but not limited to, any liability for the payment of
any applicable Termination Fee, as if the expiration of the term
fixed in such notice were the end of the Term, provided, however,
that to the extent that the Sublessee Default giving rise to such
notice occurs during an NFL Season, such ninety (90) day period
shall not begin to run until the last Game of such NFL Season has
been played;
(c) To commence arbitration in
accordance with Article 23 seeking summary eviction
of the Bills under Article 7 of the New York Real Property
Actions and Proceedings Law (provided, however, that to the
extent such arbitration is commenced during an NFL Season, any
warrant of eviction obtained thereby shall not be effective until
the last Game of such NFL Season has been played); or
(d) To exercise any other right or
remedy available to it at law, in equity or otherwise.
24.3 The County's Remedies. If
any one or more Sublessee Defaults occur, the County has the
right, subject to the terms and conditions of Section 6.5,
at its election:
(a) To discharge, pay or otherwise
perform the obligation of the Bills giving rise to such Sublessee
Default, and all amounts paid by the County and all costs and
expenses incurred by the County in connection with the discharge,
payment or performance of any such obligation (together with
interest at the Default Interest Rate from the date of payment by
the County) will be payable by the Bills to the County on demand;
or
(b) To give the Bills ninety (90) days'
written notice of the expiration of the Term and upon the giving
of such notice of the expiration of the Term and upon the giving
of such notice and the expiration of such ninety (90) day period,
the Bills' right to possession of the Stadium Complex will cease
and this Stadium Lease will be terminated, except as to the
Bills' liability for the payment of any financial obligations
accruing hereunder prior to the date of such termination,
including, but not limited to, any liability for the payment of
any applicable Termination Fee, as if the expiration of the term
fixed in such notice were the end of the Term, provided, however,
that to the extent that the Sublessee Default giving rise to such
notice occurs during an NFL Season, such ninety (90) day period
shall not begin to run until the last Game of such NFL Season has
been played;
(c) To commence arbitration in
accordance with Article 23 seeking summary eviction
of the Bills under Article 7 of the New York Real Property
Actions and Proceedings Law (provided, however, that to the
extent such arbitration is commenced during an NFL Season, any
warrant of eviction obtained thereby shall not be effective until
the last Game of such NFL Season has been played); or
(d) To exercise any other right or
remedy available to it at law, in equity or otherwise.
24.4 Cumulative Remedies. Subject
to the terms and conditions of Section 6.5, each
right and remedy afforded to the ECSC or the County pursuant to
this Article 24 is cumulative and is in addition to
every other right or remedy provided for in this Stadium Lease or
now or hereafter existing at law, in equity or otherwise, and the
exercise by either the ECSC or the County, as the case may be, of
any one or more of the rights or remedies provided for in this
Stadium Lease or now or hereafter existing at law, in equity or
otherwise will not preclude the simultaneous or later exercise by
the ECSC or the County, as the case may be, of any or all other
rights or remedies provided for in this Stadium Lease or now or
hereafter existing at law, in equity or otherwise.
ARTICLE 25 SUBLESSOR DEFAULT
25.1 Events of Sublessor Default.
Any of the following events shall constitute a "Sublessor
Default":
(a) The ECSC breaches any of the
agreements, terms, covenants, or conditions that this Stadium
Lease requires the ECSC to perform, and such breach continues for
a period of thirty (30) days after written notice from the Bills
to the ECSC and the County or, if such breach cannot be cured
reasonably within such thirty (30) day period, if the ECSC fails
to diligently commence to cure such breach within thirty (30)
days after written notice from the Bills and to complete such
cure within a reasonable time thereafter.
(b) Either the ECSC or the County breach
any of the agreements, terms, covenants or conditions set forth
in the Construction Coordinating Agreement, the Design Funding
Agreement or the Master Lease that the ECSC or the County, as the
case may be, is required to perform or observe pursuant to the
terms thereof and said breach continues beyond any applicable
notice and cure period provided for in such agreements.
(c) The County breaches any of the
agreements, terms, covenants or conditions set forth in this
Stadium Lease that this Stadium Lease requires the County to
perform or observe, and such breach continues for a period of
thirty (30) days after written notice from the Bills to the
County and the ECSC or, if such breach cannot be cured reasonably
within such thirty (30) day period, if the County fails to
diligently commence to cure such breach within thirty (30) days
after written notice from the Bills and to diligently complete
such cure thereafter.
25.2 The Bills' Remedies.
(a) If any one or more Sublessor
Defaults occur, the Bills have the right, at their election, to
discharge, pay or otherwise perform the obligation of the ECSC or
the County giving rise to such Sublessor Default, and all amounts
paid by the Bills and all costs and expenses incurred by the
Bills in connection with the discharge, payment or performance of
any such obligations (together with interest at the Default
Interest Rate from the date of payment by the Bills) will either,
at the option of the Bills, (i) be payable by the Party
whose action or inaction gave rise to such Sublessor Default on
demand or (ii) in the case of any Sublessor Default arising
out of an action or inaction of the ECSC, be offset by the Bills
against the next payment or payments to be made by the Bills
pursuant to this Stadium Lease;
(b) If any one or more Sublessor
Defaults occur, the Bills have the right, at their election, to
exercise any other right or remedy available to it at law, in
equity or otherwise; or
(c) If, upon the completion of
arbitration conducted in accordance with Article 23,
it is determined that a Material Sublessor Default exists, the
Bills shall have the right, at their election, to give the County
and the ECSC ten (10) days' written notice of the expiration of
the Term and upon the giving of such notice and the expiration of
such ten (10) day period, the Term shall end and this Stadium
Lease shall become null and void, except for the provisions
hereof which shall specifically survive such termination.
25.3 Cumulative Remedies. Each
right and remedy afforded to the Bills pursuant to this Article 25
is cumulative and in addition to every other right or remedy
provided for in this Stadium Lease or now or hereafter existing
at law, in equity or otherwise, and the exercise by the Bills of
any one or more of the rights or remedies provided for in this
Stadium Lease or now or hereafter existing at law, in equity or
otherwise will not preclude the simultaneous or later exercise by
the Bills of any or all other rights or remedies provided for in
this Stadium Lease or now or hereafter existing at law, in equity
or otherwise.
25.4 Cure of Sublessor Defaults.
Upon serving either the ECSC or the County with notice of any
event which, with the passage of time, could ripen into a
Sublessor Default, the Bills shall simultaneously serve a copy of
such notice upon the other Party. Such other Party shall
thereupon have the same period as provided to the Party whose
action or inaction gave rise to such notice to discharge, pay or
perform the obligations of such Party, and the Bills shall accept
such discharge, payment or performance by or at the instigation
of such other Party as if the same had been done by the Party
required to perform such obligation.
ARTICLE 26 LEASEHOLD MORTGAGES
26.1 Leasehold Mortgages. The
Bills shall have the right, during the Term, to grant a Lien
securing indebtedness for borrowed money against or with respect
to their interest in this Stadium Lease or in the subleasehold
estate in favor of the Bills created by this Stadium Lease,
provided that the terms of any such Lien do not provide for or
otherwise permit, at any time, the Franchise, the Bills' interest
in this Stadium Lease or the subleasehold estate in favor of the
Bills created by this Stadium Lease to be owned or controlled,
directly or indirectly, by any Person other than a Permitted
Assignee or during the pendency of the foreclosure or other
enforcement of such Lien, the NFL. Except as provided in the
preceding sentence, pursuant to Section 20.1 of the Master Lease,
without the County's prior written consent, the Bills agree not
to grant any Liens securing indebtedness for borrowed money
against or with respect to the leasehold estate in favor of the
Bills created by this Stadium Lease. The consent by the County to
any such proposed Lien shall not be construed to permit the
granting by the Bills of any future or additional Liens or the
transfer, assignment or conveyance by such Lien holder of the
Lease or the leasehold estate created hereby.
ARTICLE 27 ENTRY BY THE ECSC AND THE
COUNTY
27.1 The ECSC's Right of Entry.
The ECSC, its agents, employees, and contractors may enter the
Stadium Complex at any time in response to an emergency and at
reasonable hours upon prior written notice to:
(a) Inspect the Stadium Complex;
(b) Determine whether the Bills are
complying with all of their obligations in this Stadium Lease;
(c) Supply services to be provided by
the ECSC to the Bills according to this Stadium Lease; and
(d) Make repairs required of the ECSC
under the terms of this Stadium Lease (provided that in
exercising such right of access to make repairs, the ECSC shall
use commercially reasonable efforts to avoid any unnecessary
interference with Games or Bills' Events).
27.2 County's Right of Entry. The
Bills and the ECSC recognize that County has a substantial
interest in the manner in which the Stadium Complex is operated
and maintained and has a responsibility to the public to ensure
that the Stadium Complex is operated and maintained in a manner
consistent with public facilities. In furtherance of the
foregoing, County and its employees, agents and representatives
shall have the right at all times to enter into and upon any and
all parts of the Stadium Complex for the purpose of inspecting
the same and performing its obligations under the Stadium
Agreements.
ARTICLE 28 PROTECTION OF THE MASTER
LEASE
28.1 Generally. The Bills shall
not do or cause to be done or suffer or permit to be done any act
or thing which would constitute a Sublessee Default or would or
might constitute a default under Section 4.2 of the Master Lease
or which would or might cause the ECSC or the County to become
liable for any damages, costs, claims or penalties or which would
or might materially increase the obligations of the ECSC as
lessee under the Master Lease, or which would or might adversely
affect or reduce any of the ECSC's rights or benefits under the
Master Lease. The Bills represent that they have examined the
Master Lease and that they are fully familiar with the terms
thereof. The provisions of this Section 28.1 shall
survive the expiration or earlier termination of this Stadium
Lease.
28.2 Modification of Master Lease.
The County and the ECSC may modify, or cause or suffer to be
modified, the Master Lease, without in any instance first
obtaining the consent of the Bills to such modification unless
the modification in question would adversely affect the Bills'
rights or obligations hereunder or under the Master Lease.
28.3 The County's Rights Against the
Bills. Without in any way limiting the enforceability of any
of the terms and conditions of the Master Lease or this Stadium
Lease which expressly afford the County with a right against the
Bills or the NFL for the payment or performance of an obligation,
the Bills, the NFL and the ECSC acknowledge and agree that the
County is a third party beneficiary of this Stadium Lease and, as
such, has the right, with or without the consent of the ECSC, to
enforce any obligation of the Bills or the NFL hereunder directly
against the Bills or the NFL, as the case may be, in its own
name. Without limiting the generality of the foregoing, in the
event the County seeks to enforce an obligation of the Bills
arising under Article 9 of this Stadium Lease, the
ECSC shall refrain from separately enforcing such obligation for
so long as the County diligently and in good faith pursues such
enforcement.
ARTICLE 29 CONDITIONS PRECEDENT
29.1 PACB Approval. This Stadium
Lease, and the terms, covenants and conditions set forth herein
shall be conditioned upon the receipt by the ECSC of written
approval from the New York State Public Authorities Control Board
as to the Project. In the event such approval is not obtained by
the ECSC within sixty (60) days of the execution and delivery
hereof, this Stadium Lease shall automatically become null and
void and none of the Parties shall have any further rights or
obligations hereunder.
29.2 NFL Opinion of Counsel.
Simultaneously with the execution and delivery hereof, the NFL
shall deliver to the ECSC and the County, an opinion of counsel
(which may be issued by "in-house" counsel), in
substantially the form attached hereto as Exhibit O.
ARTICLE 30 MISCELLANEOUS
30.1 Public Sector Capacity. In
entering into the Stadium Agreements, the County is acting in a
proprietary rather than a governmental capacity. Nothing
contained herein shall limit the County from exercising its
governmental or police powers with respect to the protection of
the public health, safety or welfare.
30.2 Exculpatory Provisions. All
covenants, stipulations, promises, agreements and obligations of
the Parties contained herein shall be deemed to be covenants,
stipulations, provisions, agreements and obligations of the Party
making such covenant, stipulation, promise, agreement or
obligation and not of any member, director, officer, employee or
agent of such Party in his or her individual capacity, and no
recourse shall be had for any claim hereunder against any such
member, director, officer, employee or agent.
30.3 No Construction Against Drafting
Party. The County, the ECSC and the Bills acknowledge that
each of them and their counsel have had an opportunity to review
this Stadium Lease and that this Stadium Lease will not be
construed against the County or the ECSC merely because the
County has prepared it.
30.4 No Waiver. No failure of any
party to this Stadium Lease to require, and no delay by any party
to this Stadium Lease in requiring, any other party to comply
with any provision of this Stadium Lease shall constitute a
waiver of the right to require such compliance. No failure of any
party to this Stadium Lease to exercise, and no delay by any
party to this Stadium Lease in exercising, any right or remedy
under this Stadium Lease shall constitute a waiver of such right
or remedy. No waiver by any party to this Stadium Lease of any
right or remedy under this Stadium Lease shall be effective
unless made in writing. Any waiver by any party to this Stadium
Lease of any right or remedy under this Stadium Lease shall be
limited to the specific instance and shall not constitute a
waiver of such right or remedy in the future.
30.5 Notices. Unless otherwise
provided in this Stadium Lease, any agreement, notice, request,
instruction or other communication to be given hereunder by any
party to the other shall be in writing and (i) delivered
personally (such delivered notice to be effective on the date it
is delivered); (ii) mailed by certified mail, postage
prepaid (such mailed notice to be effective four (4) days after
the date it is mailed); (iii) sent by recognized overnight
courier (such couriered notice to be effective one (1) day after
the date it is delivered to such courier); or (iv) sent by
facsimile transmission, with a confirmation sent by way of one of
the above methods, addressed to the party for whom it is intended
at its address set forth in Section 1.1 (such
facsimile notice to be effective on the date that confirmation of
such facsimile transmission is received); provided that any party
may designate in a writing to any other party any other address
or telecopier number to which, and any other Person to whom or
which, a copy of any such notice, request, instruction or other
communication should be sent.
30.6 Severability. If any
provision of this Stadium Lease proves to be illegal, invalid, or
unenforceable, the remainder of this Stadium Lease will not be
affected by such finding, and in lieu of each provision of this
Stadium Lease that is illegal, invalid, or unenforceable, a
provision will be added as a part of this Stadium Lease as
similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid, and
enforceable.
30.7 Written Amendment Required.
No course of performance or other conduct hereafter pursued,
accepted or acquiesced in, and no oral agreement or
representation made in the future, by any party to this Stadium
Lease, whether or not relied or acted upon, and no usage of
trade, whether or not relied or acted upon, shall modify or
terminate this Stadium Lease, impair or otherwise affect any
obligation of any party pursuant to this Stadium Lease or
otherwise operate as a waiver of any such right or remedy. No
modification of this Stadium Lease or waiver of any such right or
remedy shall be effective unless made in writing duly executed by
the duly authorized representatives of the Parties to this
Stadium Lease and approved by the County.
30.8 Entire Agreement. The
Stadium Agreements and the exhibits, schedules and addenda
thereto, if any, contain the entire agreement between the ECSC
and the Bills. No promises or representations, except as
contained in the Stadium Agreements have been made to the Bills
respecting the condition or the manner of operating the Stadium
Complex.
30.9 Captions. The captions of
the various articles and sections of this Stadium Lease are for
convenience only and do not necessarily define, limit, describe,
or construe the contents of such articles or sections.
30.10 Brokers. The ECSC and the
Bills respectively represent and warrant to each other that
neither of them has consulted or negotiated with any broker or
finder with regard to the Stadium Complex. Each of them will
indemnify and defend the other against and hold the other
harmless from any claims for fees or commissions from anyone with
whom either of them has consulted or negotiated with regard to
the Stadium Complex.
30.11 Governing Law; Venue. Each
Party hereby consents to the jurisdiction of the courts of the
State of New York and/or the United States District Court for the
Western District of New York in any action or proceeding arising
under or relating to this Agreement (with Buffalo, New York as
the venue for any action or proceeding). Each Party agrees not to
institute suit against the others in a court in any jurisdiction,
except as stated above, without the other Parties' consent. The
Parties further agree that all matters with respect to the
validity, construction or interpretation of this Agreement shall
be governed by the internal law of the State of New York, without
reference to any conflict of laws provisions.
30.12 Binding Effect. The
covenants, conditions, and agreements contained in this Stadium
Lease will bind and inure to the benefit of the ECSC and the
Bills and their respective heirs, distributees, executors,
administrators, successors, and, except as otherwise provided in
this Stadium Lease, their assigns.
30.13 Recording. Upon the
execution and acknowledgment hereof, this Stadium Lease or a
memorandum hereof shall be recorded in the real property records
of Erie County, New York.
30.14 Counterparts. This Stadium
Lease may be executed in one or more counterparts, each of which
shall be deemed an original and all of which taken together shall
constitute one and the same instrument. Any Party may execute
this Stadium Lease by facsimile signature and the other Parties
shall be entitled to rely on such facsimile signature as evidence
that this Stadium Lease has been duly executed by such Party. Any
Party executing this Stadium Lease by facsimile signature shall
immediately forward to the other Parties an original signature
page by overnight mail.
30.15 Force Majeure. If any Party
is delayed, prevented or hindered from the performance of any
covenant or condition of this Stadium Lease because of Force
Majeure, such performance shall be excused for the period of the
delay, and the period for such performance shall be extended for
a period equivalent to the period of such delay.
30.16 No Merger. The terms and
provisions of this Stadium Lease (including, without limitation,
the representations, warranties and covenants) shall not merge,
be extinguished or otherwise affected by the delivery and
execution of any document delivered pursuant to this Stadium
Lease unless such document shall specifically so state and shall
be signed by the County, the ECSC and the Bills.
30.17 Only Sublessor - Sublessee
Relationship. Nothing contained in this Stadium Lease shall
be deemed or construed by the Parties or by any third Person to
create the relationship of principal and agent, partnership,
joint venture or any association between the ECSC and the Bills,
it being expressly understood and agreed that neither the method
of computation of rent nor any act of the parties hereto shall be
deemed to create any relationship between the ECSC and the Bills
other than the relationship of sublessor and sublessee. It is
agreed that all Persons provided by the Bills to perform the
obligations of the Bills contemplated hereby are not employees or
agents of the ECSC. The Bills acknowledge that the Bills'
employees and agents shall not, by reason of this Stadium Lease
or by reason of the performance of any services in connection
with the satisfaction of the Bills' obligations hereunder, be
considered employees of, or entitled to any employee benefits of,
the ECSC or the County.
30.18 Applicable Standard. Any
approval, consent, decision or election to be made or given by a
Party may be made or given in such Partys sole judgment and
discretion, unless a different standard (such as reasonableness)
is provided for explicitly.
30.19 Additional Assurances. From
time to time after the date of this Stadium Lease, without
further consideration and subject to the other terms of this
Stadium Lease, the Parties shall promptly execute and deliver
such other instruments and take such other action as any other
Party reasonably may request to consummate the transactions
contemplated hereby.
30.20 No Third Party Beneficiaries.
Except for the third party beneficiary rights afforded to the
County pursuant to Section 28.3, this Stadium Lease
is solely for the benefit of the Parties, and their successors
and permitted assigns and no provisions of this Stadium Lease
shall be deemed to confer upon any other Person any remedy,
claim, liability, reimbursement, cause of action or other right.
30.21 Authority. The Bills and
the ECSC each represent and warrant that (i) it has full
power and authority to enter into this Stadium Lease and to
perform and carry out all obligations, covenants and provisions
hereof; and (ii) this Stadium Lease constitutes the legal,
valid and binding obligations of said Party in accordance with
the terms hereof and has been duly authorized by all necessary
board, director, shareholder, manager, legislative, executive,
committee and/or agency action, as the case may be, of such
Party.
30.22 Stadium Affirmative Action Plan.
Except with respect to the Project, during the Term, the Bills
shall exercise commercially reasonable efforts to comply with the
Stadium Affirmative Action Plan.
30.23 Limited Liability of ECSC.
Notwithstanding anything contained herein to the contrary, the
liability and obligation of ECSC to perform and make good the
obligations contained herein shall not be enforced by any
Proceeding wherein damages or any money judgement shall be sought
against ECSC, ESDC or the State; provided, however, that the
foregoing limitation shall not be construed so as to limit the
ability of any Party to commence a Proceeding against ECSC
seeking:
(a) Recovery for Losses arising out of
the negligence or willful misconduct of ECSC;
(b) Recovery for Losses arising out of
the negligence or willful misconduct of any employee of ECSC;
(c) Recovery for Losses arising out of
the negligence or willful misconduct of any Person at the Stadium
Complex at the behest, request or invitation of ECSC (including
any guest or invitee in conjunction with an ECSC sponsored Civic
Event, but excluding any contractor retained by ECSC for the
Project not acting upon the direction of ECSC);
(d) Recovery of any Project Insurance
Policy proceeds;
(e) Contribution from ECSC for up to
$63,250,000 (or such greater amount as may be approved by the
ECSC as the Budget) to fund the construction of the Project as
and when contemplated by the Construction Coordinating Agreement
and the Project Agreements;
(f) Reimbursement from ECSC for
Operating Expenses and Game Day Expenses in accordance with Section 9.4
of the Stadium Lease;
(g) Payment by the ECSC of Working
Capital Assistance in accordance with Section 11.1 of
the Stadium Lease;
(h) Payment by ECSC of additional rent
in accordance with Section 11.3 of the Stadium Lease;
(i) Payment by ECSC of additional rent
in accordance with Section 3.1(b) of the Master Lease;
and/or
(j) Payment by ECSC of the ECSC Project
Costs pursuant to Section 2.3(h) of the Construction
Coordinating Agreement.
30.24 Vending at the Stadium Complex.
Provided the Bills furnish Unaffiliated Vendors with
opportunities for vending at the Stadium Complex in accordance
with the Vending Plan, the County shall use reasonable efforts to
prohibit vending on the County-owned rights-of-way contiguous to
the Stadium Complex by all Persons other that those permitted
under Section 35 of the New York General Business Law, it being
acknowledged and agreed by the Parties that the failure of the
County to fulfill this obligation, after taking into account any
applicable notice and cure periods, shall constitute a Sublessor
Default hereunder. If during the Term, the Bills cease to provide
vending opportunities for Unaffiliated Vendors in accordance with
the Vending Plan, the County shall not have any obligation
hereunder to prohibit vending in the County-owned rights-of-way
contiguous to the Stadium Complex for the period during which any
of such vending opportunities are unavailable.
IN WITNESS WHEREOF, the ECSC and
the Bills have executed this
Lease as of the day and year first above
written.
SUBLESSOR:
ERIE COUNTY STADIUM CORPORATION
By: _________________________________
Name:__________________________________
Title:___________________________________
SUBLESSEE:
BUFFALO BILLS, INC.
By: _________________________________
Name:__________________________________
Title:___________________________________
STATE OF NEW YORK )
: SS.
COUNTY OF ERIE )
On the day of July, in the year 1998,
before me personally came __________________ , to me known, who being by me duly
sworn, did depose and say that he/she/they reside(s) in ____________________ ; that
he/she/they is (are) the ______________________ of the corporation described in and
which executed the above instrument; and that he/she/they signed
his/her/their names thereto by authority of the board of
directors of said corporation.
__________________________________________
STATE OF NEW YORK )
: SS.
COUNTY OF ERIE )
On the day of July, in the year 1998,
before me personally came ________________________, to me known, who being by me duly
sworn, did depose and say that he/she/they reside(s) in ______________________; that
he/she/they is (are) the ________________________ of the corporation described in and
which executed the above instrument; and that he/she/they signed
his/her/their names thereto by authority of the board of
directors of said corporation.
__________________________________________
JOINDER OF THE NFL
The National Football League hereby
executes this Joinder to Stadium Lease for the purpose of:
(a) acknowledging the covenants of the Bills set forth in
Article 6; (b) evidencing its approval of the Stadium
Agreements under the NFL Rules and Regulations; and
(c) acknowledging its agreements and covenants set forth in
the Stadium Lease.
The National Football League represents
and warrants to the ECSC and the County that: (a) it has
full power and authority to enter into this Joinder to Stadium
Lease and to perform and carry out all obligations, covenants and
provisions hereof; and (b) this Joinder to Stadium Lease
constitutes the legal, valid and binding obligation of the
National Football League in accordance with the terms hereof, and
has been duly authorized by all necessary member, board,
director, shareholder, manager, legislative, executive committee
and/or agency action, as the case may be, of the National
Football League.
The National Football League further
covenants and agrees to promptly furnish to the ECSC and the
County during the Term, copies of any written notices provided to
the Bills declaring that either the Team or the Franchise is not
in good standing with the NFL under the terms and conditions of
the applicable NFL Rules and Regulations.
NATIONAL FOOTBALL LEAGUE
By:_______________________________________
Name:____________________________________
Title:_____________________________________
JOINDER OF THE COUNTY
The County hereby executes this Joinder
to the Stadium Lease for the purpose of: (a) acknowledging
its approval of the subletting of the Stadium Complex to the
Bills pursuant thereto; and (b) acknowledging to the Bills,
and agreeing to perform and/or comply with, as the case may be,
its obligations pursuant to Sections 2.3, 4.2(c), 4.2(e),
4.3, 4.5(c), 4.8, 4.9, 5.1, 5.2, 6.5(a), 9.6, 9.7, 10.1, 12.1,
13.2, 13.5, 15.1, 17.3, 17.4, 18.3, 18.6, 20.1, 20.5(a), 25.2,
25.3, 26.1, 28.2 and 30.24 thereof.
The County represents and warrants to
the ECSC and the Bills that: (a) it has full power and
authority to enter into this Joinder to Stadium Lease and to
perform and carry out all obligations, covenants and provisions
hereof; and (b) this Joinder to Stadium Lease constitutes
the legal, valid and binding obligation of the County in
accordance with the terms hereof, and has been duly authorized by
all necessary legislative, executive, committee and/or agency
action, as the case may be, of the County.
The County further represents and
warrants to the ECSC and the Bills that no further legislative
action or approval on the part of the County is or shall be
required in order to enable the County to perform and carry out
all obligations, covenants and provisions of this Joinder to
Stadium Lease.
THE COUNTY OF ERIE
By:_______________________________________
Name:____________________________________
Title:_____________________________________
Approved as to form:
__________________________________________________
County Attorney
Approved as to Content:
__________________________________________________
Commissioner of Department of Environment and Planning
CORPORATE:154806_15 (3BG6_F)
EXHIBIT A
Description of the Bills' Improvements
NONE
EXHIBIT B
Description of the Land
Being all that tract or parcel of land
located on the east side of Abbott Road in the Town of Orchard
Park, County of Erie, State of New York and being part of Lots 39
and 40, Township 9, Range 7 of the Holland Land Company's survey
and further bounded and described as follows:
Beginning at a point on the centerline
of Abbott Road, said point being Two Hundred Fifty-Five and
Fifty-Three hundredths feet (255.53') south of the centerline of
Southwestern Boulevard as measured along the centerline of Abbott
Road and said point of beginning being on the extension
southwesterly of the southerly line of lands conveyed to Penn
Mutual Life Insurance Company by Liber 6132 of deeds at Page 195;
thence northeasterly at an angle with
the centerline of Abbott Road measured from the south to the east
of 115°47'49"
and parallel with Southwestern Boulevard a distance of Two
Hundred Thirty-Six and Sixty-Five hundredths feet (236.65') to
the southeast corner of Liber 6132 of deeds at Page 195;
thence north along the east line of
Liber 6132 of deeds at Page 195 and its extension north and being
parallel with Abbott Road a distance of Two Hundred Fifty-Five
and Fifty-Three hundredths feet (255.53') feet to the centerline
of Southwestern Boulevard;
thence northeast along the centerline of
Southwestern Boulevard at an included angle with the last
described line of 1154°7'49" a distance of Two Hundred Fifty-Four
and Twenty-Six hundredths feet (254.26') to a point on the south
line of lands conveyed to Charles Druse by Liber 471 of deeds at
Page 317;
thence continuing along the centerline
of Southwestern Boulevard a distance of Three Hundred Sixty-One
and Thirty-One hundredths feet (361.31');
thence south at right angles to the
south line of Charles Druse by Liber 471 of deeds at Page 317 a
distance of One Hundred Ninety-One and Thirty-Five hundredths
feet (191.35') to said south line;
thence east at right angles with the
last described line and along the said south line a distance of
One Thousand Seventy-Eight and Seventy-Seven hundredths feet
(1,078.77') to the east line of Lot 40, Township 9, Range 7;
thence south along the east line of Lot
40, Township 9, Range 7 and at an included angle with the last
described line of 90°50'18" a distance of Two Thousand Seven
Hundred Thirty-Five and Twenty-Four hundredths feet (2,735.24')
to the southeast corner of Lot 40, Township 9, Range 7;
thence continuing in a straight line a
distance of Sixty-Six and Four hundredths feet (66.04') to the
northeast corner of Lot 39, Township 9, Range 7;
thence west at an included angle with
the last described line of 88°00'47" and along the north line of
Lot 39, Township 9, Range 7 a distance of four
Hundred Seventy-Two and Fifty-Six hundredths feet (472.56')
deeded and Four Hundred Seventy-One and Eight Hundredths feet
(471.08') measured;
thence south at an angle with the north
line of said lot measured from the west to the south of 91°47'19" and
being parallel with the east line of Lot 39,
Township 9, Range 7 a distance of Five Hundred Eighteen
and Ten hundredths (518.10') deeded and Five Hundred Twenty-Two
and Forty-Five hundredths feet (522.45') measured;
thence west an included angle with the
last described line of 90°0' deeded and 89°46'49" measured a distance of Six Hundred
Twenty-Seven and no hundredths feet (627.0') deeded and Six
Hundred Twenty-Three and Forty-One hundredths feet (623.41')
measured to a point One Thousand One Hundred Eleven and
Forty-Four hundredths feet (1,111.44') north of the centerline of
Big Tree Road as measured at right angles with this described
line;
thence south at right angles with the
last described line a distance of Eight Hundred Sixty and
Eighty-Four hundredths feet (860.84') to a point Two Hundred
Fifty and Sixty hundredths feet (250.60') north of the centerline
of Big Tree Road as measured along the extension south of this
described line;
thence west at right angles with the
last described line a distance of One Hundred Seventy-Seven and
Thirty-Nine hundredths feet (177.39');
thence south at right angles with the
last described line a distance of Two Hundred Twenty and
Sixty-Four hundredths feet (220.64') to the centerline of Big
Tree Road;
thence westerly along the centerline of
Big Tree Road and at an included angle with the last described
line of 80°24'40" a distance of One Hundred Ninety-Two
and Fifty-Three hundredths feet (192.53');
thence westerly along the centerline of
Big Tree Road and at a deflection to the left of 0°20'00" a
distance of Forty-Eight and Twenty-Two hundredths feet (48.22');
thence north at an included angle with
the last described line of 99°15'20" a distance of One Thousand Five
Hundred Seventy and Eighty hundredths feet (1,570.80') deeded and
One Thousand Five Hundred Ninety-Two and Forty-Seven hundredths
feet (1,592.47') measured to the north line of Lot 39,
Township 9, Range 7;
thence west along the north line of
Lot 39 a distance of Five Hundred Fifty-Two and Ninety-Five
hundredths feet (552.95') to the centerline of Abbott Road as now
laid out;
thence northeast at an included angle
with the last described line of 80°08'15" a distance of Six Hundred
Ninety-Seven and Eighty-One hundredths feet (697.81') to an angle
point in the centerline of Abbott Road as now laid out;
thence northeasterly along the
centerline of Abbott Road as now laid out and at a deflection to
the left of 1°29'56" a distance of Seven Hundred
Sixty-Eight and Ninety-Three hundredths feet (768.93') to a point
of curve in the centerline of Abbott Road as now laid out;
thence northerly along a curve to the
left having a radius of One Thousand Nine Hundred Nine and
Eighty-Six hundredths feet (1,909.86') and a central angle of 15°41'28" an arc
length of Five Hundred Twenty-Three and Four hundredths feet
(523.04') to the point of tangency;
thence northwesterly along the center
line of Abbott Road and tangent to the last described line a
distance of Two Hundred Eighty-Two and Eighty-One hundredths feet
(282.81') to the point of beginning;
Excepting from the above
described parcel the "burial ground lot" and further
bounded and described as follows:
Commencing at the intersection of
centerlines of Abbott Road and Southwestern Boulevard;
thence southwest along the centerline of
Abbott Road and its extension a distance of Eight Hundred One and
Fifty hundredths feet (801.50');
thence southeasterly at a deflection to
the right of 15°41'27" a distance of Two Hundred Ten and
Eighty-Eight hundredths feet (210.88');
thence east at an angle with the last
described line measured from the north to the east of 80°39'05" a
distance of Eight Hundred Sixty-One and Twenty-Seven hundredths
feet (861.27') to the point of beginning;
thence continuing east a distance of One
Hundred Forty and Fifteen hundredths feet (140.15');
thence north at an included angle with
the last described line of 88°46'27" a distance of Eighty-Two and
Forty-Four hundredths feet (82.44');
thence west at an included angle with
the last described line of 91°13'33" a distance of One Hundred Forty and
Fifteen hundredths feet (140.15');
thence south at an included angle with
the last described line of 88°46'27" a distance of Eighty-Two and
Forty-Four hundredths feet (82.44') to the point of beginning and
containing 0.27 acres, more or less.
Also excepting from the above
described parcel the southerly half of Southwestern Boulevard,
said having a full right-of-way width of 100' as conveyed to the
County of Erie by Liber 2062 of deeds at Page 496;
Also excepting from the above
described parcel that portion of lands lying within the above
described parcel along Big Tree Road as conveyed by Edna Oaks to
the State of New York by Liber 4287 of deeds at Page 256 and
shown on Map 25-R-1, Parcel 31,
Also excepting lands provided by
the County of Erie for the reconstruction of Abbott Road and
known as Parcel 3 - File No. 217-92.
The remaining parcel containing 134.42
acres more or less.
Also conveying the following described parcel
Being all that tract or parcel of land
located on the west side of Abbott Road in the Town of Orchard
Park, County of Erie, State of New York and being part of Lots 39
and 40, Township 9, Range 7 of the Holland Land Company's survey
and further bounded and described as follows:
Commencing at the centerline of Abbott
Road at its intersection with the centerline of Southwestern
Boulevard;
thence S 5°19'26"E along the centerline of Abbott Road
a distance of Five Hundred Thirty-Eight and Thirty-Four
hundredths feet (538.34') to a point of curve in the centerline
of Abbott Road as now laid out;
thence southerly along a curve to the
right having a radius of One Thousand Nine Hundred Nine and
Eighty-Six hundredths feet (1,909.86') and being the centerline
of Abbott Road as now laid out an arc length of Nineteen and no
hundredths feet (19.00') to its intersection with the north line
of lands formerly conveyed to E.I. DuPont DeNemours & Company
by Liber 1295 of deeds at Page 469 and the point of beginning.
thence southerly along a curve to the
right forming the centerline of Abbott Road as now laid out
having a radius of One Thousand Nine Hundred Nine and Eighty-Six
hundredths feet (1,909.86') an arc length of Five Hundred Four
and Four hundredths feet (504.04') to a point of tangency;
thence S 10°22'02"W along the centerline of Abbott Road
as now laid out and tangent to the last described curve a
distance of Seven Hundred Sixty-Eight and Ninety-Three hundredths
feet (768.93') to an angle point;
thence S 11°51'58" W along the centerline of Abbott Road
as now laid out a distance of One Thousand Sixty-One and
Seventy-Two hundredths feet (1,061.72') to a point on the north
line of lands now or formerly conveyed to C.S. Vank;
thence N. 78°41'03" W along the said north line of Vank
and its extension a distance of Six Hundred Eighty-Two and
Fifteen hundredths feet (682.15') to a point on the extension
south of the west line of lands conveyed to E.I. DuPont DeNemours
& Company by Liber 1295 of deeds at Page 469;
thence N 00°01'46" W and along the west line of
lands conveyed by Liber 1295 of deeds at Page 469 and its
extension south and also north a distance of Two Thousand One
Hundred Ninety-Two and Eighty-Six hundredths feet (2,192.86') to
the southerly line of Southwestern Boulevard being 100' wide;
thence N 64°45'18" E along the southerly line of
Southwestern Boulevard a distance of One Hundred and no tenths
feet (100.0');
thence S 0°01'46" W a distance of Fifty-Nine and
Fourteen hundredths feet (59.14') to the north line of lands
conveyed to E.I. DuPont DeNemours & Company;
thence S 89°14'02" E along the said north line a
distance of Nine Hundred Fifty-Eight and Eighty-Two hundredths
feet (958.82') to the point of beginning;
Excepting lands provided by the
County of Erie for the reconstruction of Abbott Road and known as
Parcel 2 - File No. 217-91.
The remaining parcel containing 43.77
acres more or less.
EXHIBIT C
NFL Rules and Regulations
EXHIBIT D
Qualifying License Fee
Lease
Year
|
Qualifying
License Fee Amount
|
2
|
$11,000,000
|
3
|
$11,440,000
|
4
|
$11,897,600
|
5
|
$12,373,504
|
6
|
$12,868,444
|
7
|
$13,383,181
|
8
|
$13,918,508
|
9
|
$14,475,248
|
10
|
$15,054,257
|
11
|
$15,656,427
|
12
|
$16,282,684
|
13
|
$16,933,991
|
14
|
$17,611,350
|
EXHIBIT E
Stadium Affirmative Action Plan
1. With respect to the operations of the
Stadium Complex, the Bills agree that they shall (a) neither
commit nor permit discrimination or segregation by reason of
race, creed, color, religion, national origin, ancestry, sex,
age, disability or marital status ("Discrimination") in
the use or occupancy of the Stadium Complex or any part thereof
and (b) comply with all federal, state and local laws,
ordinances, rules, and regulations from time to time in effect
prohibiting Discrimination or segregation or pertaining to equal
employment opportunities.
2. The Bills shall endeavor to consider
qualified minority and women owned business enterprises
("MWBE's") for service and management contracts and
other agreements for the purchase of goods and services that
relate to the operation of the Stadium Complex. Where
appropriate, the Bills shall endeavor to afford qualified MWBE's
an opportunity to submit proposals for prospective Bills'
Improvements.
3. Notwithstanding anything to the
contrary herein, the affirmative action and non-discrimination
provisions set forth above shall have no applicability with
respect to any personnel decisions made by the Bills for its
on-field operations, including, but not limited to the hiring,
firing or trading of players and coaches of the Bills. The Bills'
sole obligation with respect to such on-field personnel decisions
shall be limited by NFL Rules and Regulations and Applicable Law.
EXHIBIT F
Reduced Copy of the Survey
EXHIBIT G
Termination Fee
Lease
Year
|
Notice
Date
|
Termination
Date
|
Termination
Fee
|
6
|
February
28, 2004
|
July
31, 2004
|
$20,000,000
|
7
|
February
28, 2005
|
July
31, 2005
|
$17,000,000
|
8
|
February
28, 2006
|
July
31, 2006
|
$14,000,000
|
9
|
February
28, 2007
|
July
31, 2007
|
$12,000,000
|
10
|
February
28, 2008
|
July
31, 2008
|
$10,000,000
|
11
|
February
28, 2009
|
July
31, 2009
|
$8,000,000
|
12
|
February
28, 2010
|
July
31, 2010
|
$6,000,000
|
13
|
February
28, 2011
|
July
31, 2011
|
$4,000,000
|
14
|
February
28, 2012
|
July
31, 2012
|
$2,000,000
|
EXHIBIT H
Amortization Table for Initial ECSC
Investment
EXHIBIT I
Vending Plan
EXHIBIT J
County Local Law No. 2-1994
EXHIBIT K
Concessionaire Insurance Requirements
Concessionaire's Insurance
(a) Required Coverages
|
1. Commercial General Liability
|
| Bodily Injury & Property Damage
Limit | $1,000,000 each occurrence |
| Products/Completed Operations Limit
| 1,000,000 aggregate |
| Personal Injury and Advertising
| 1,000,000 each person or organization |
| General Aggregate Limit | 2,000,000 each
location
|
Exclusions for the following coverages
are not permissible:
Products/Completed Operations Contractual Liability
|
| 2. Automobile Liability
Owned, Hired and Non-Owned Autos (Symbol
"1" on Business Auto policies)
|
| Combined Single Limit for Bodily Injury and Property Damage |
$1,000,000 each
accident |
| 3. Liquor Liability (where the sale or dispensing of alcoholic beverages is contemplated) | 1,000,000 each occurrence 1,000,000 aggregate |
| 4. Excess "Umbrella"
Liability |
| Combined Single Limit for Bodily Injury
and Property Damage |
$ __________ each
occurrence and aggregate |
| (Coverage to be excess of required
coverages (a) 1, 2 and 3 and the Certificate of Insurance required per item (d) below must
clearly so reflect)
5. Workers' Compensation & Employers' Liability
Statutory coverage complying with the
New York Workers' Compensation Law
|
(b) All insurance carriers providing
the above coverages for the concessionaire must be licensed
to do so in New York State. All such carriers must also be
rated no lower than "A" by the most recent Best's
Key Rating Guide or Best's Agent's Guide or must be otherwise
acceptable to the County.
(c) The County, ECSC and ESDC must
be named as additional insureds, on a direct primary basis,
under all the policies listed in (a) 1, (a) 3 and (a) 4 above
for liability arising out of responsibilities of the
concessionaire under its agreement with the Bills.
The insurance required hereunder
shall be primary insurance and the insurer shall be liable
for the full amount of any loss up to the total limit of
liability required without the right of contribution of any
other insurance coverage held by any other entity named as an
additional insured in item (c) above.
(d) Certificates of insurance must
be provided to and approved by the County prior to commencing
work under the concessionaire's contract. If any policy
expires or is cancelled during the term of this Stadium
Lease, the concessionaire shall immediately furnish an
original certificate of insurance evidencing proper renewal
or replacement of the policy. The certificate of insurance must
provide evidence of the additional insured status for all
required parties.
(e) At least 60 days advance written
notice of the cancellation, non-renewal or material change of
any of the required coverages will be provided to the County
and the respective policies will be so endorsed and the
required certificates of insurance shall evidence this as
well.
(f) It is expressly understood and
agreed by the concessionaire that the insurance requirements
specified above contemplate the use of occurrence liability
forms. If claims-made coverage is evidenced to satisfy any of
these requirements, the concessionaire shall be subject to
additional requirements as may be reasonably imposed by the
County to avoid any potential lapse in protection which is
inherent in the use of claims-made coverage.
(g) It is understood that the
concessionaire maintain and evidence total General Liability,
Auto Liability and Liquor Liability limits of $___________.
This may be accomplished as outlined in (a) above or in any
other combination of primary and excess layers so long as all
other requirements are fulfilled.
EXHIBIT L
Suite and Club Seat Licenses
EXHIBIT M
County Local Law No. 5-1996
EXHIBIT N
Notice To Be Delivered On Or Before
12/1/98
BUFFALO BILLS, INC.
One Bills Drive
Orchard Park, New York 14127
[Date]
VIA FACSIMILE AND FEDERAL EXPRESS
County of Erie
c/o Department of Public Works
95 Franklin Street
Buffalo, New York 14202
Attention: Commissioner of Public Works
Erie County Stadium Corporation
c/o Empire State Development Corp.
633 Third Avenue
New York, New York 10017-6754
Attention: General Counsel
Ladies and Gentlemen:
All initially-capitalized terms used in this letter, but not defined herein, shall have the meaning ascribed thereto in the Stadium Lease, dated as of [March] __, 1998, between Erie County Stadium Corporation, as sublessor, and Buffalo Bills, Inc., as sublessee (the "Stadium Lease").
This letter will serve as notice, pursuant to Section 7.1 of the Stadium Lease, of the following:
| A. |
Achievement of Satisfaction: The Bills have achieved Satisfaction with respect to the Marketing Campaign and hereby agree, pursuant to the provisions of Section 7.1 of the Stadium Lease, that the Stadium Lease shall remain in full force and effect. |
| - OR - |
| B. |
Waiver of Cancellation: While the Bills have not achieved Satisfaction with respect to the Marketing Campaign, the Bills nonetheless hereby waive the provisions of Section 7.1 of the Stadium Lease providing for the automatic cancellation thereof. |
| - OR - |
| C. |
Failure to Achieve Satisfaction: The Bills have failed to achieve Satisfaction with respect to the Marketing Campaign. Pursuant to the terms and conditions of Section 7.1 of the Stadium Lease: (i) the Stadium Lease shall terminate effective July 30, 1999, and, except for the provisions thereof that specifically survive such termination, shall cease to be of any further force and effect as of such date; and (ii) on or before January 1, 1999, the Bills shall pay to the ECSC the sum set forth in Section 10.2 of the Stadium Lease. |
Very truly yours,
Buffalo Bills, Inc.
By:____________________________
Name:______________________________
Title: _________________________
| Copy to: |
Erie County Attorney's Office
(via facsimile & Federal Express)
69 Delaware Avenue, Suite 300
Buffalo, New York 14202
|
EXHIBIT O
NFL Counsel Opinion
______________________, 1998
The County of Erie
95 Franklin Street
Buffalo, New York 14202
Erie County Stadium Corporation
633 Third Avenue
New York, New York 10017-6754
Ladies and Gentlemen:
We have acted as counsel to the National
Football League (the "NFL") in connection with the
execution and delivery by the NFL of the Joinder of the NFL (the
"Joinder") to that certain Stadium Lease, dated as of
July __, 1998 (the "Stadium Lease"), between the Erie
County Stadium Corporation and Buffalo Bills, Inc. (the
"Bills"). This letter is being delivered to you
pursuant to Section 29.2 of the Stadium Lease.
In the preparation of this letter, we
have examined the Joinder, the Stadium Lease and such other
documents as we have deemed necessary to give the opinions set
forth in this letter, and we have made such investigation of fact
and of law as we have deemed necessary to give such opinions.
Based upon such examination and investigation, we are of the
opinion that:
- The NFL (a) is an
unincorporated, not-for-profit association organized under the
laws of the State of [New York] and (b) has the power and
authority to conduct its business and operations as now conducted
and to execute, deliver and perform the Joinder.
- To the best of our knowledge, there
is no outstanding judgment, order or award of any court, agency
or other governmental authority or of any arbitrator, and no
pending or threatened claim, audit or investigation, and no
pending or threatened action or other legal proceeding, by or
before any court, agency or other governmental authority or
before any arbitrator that renders invalid, or questions the
validity of, the Joinder or any action taken or to be taken
pursuant thereto.
- The execution, delivery to you and
performance of the Joinder by the NFL (a) do not and will
not violate, or result in any violation of, any statute,
regulation or other law or, to the best of our knowledge, any
judgment, order or award of any court, agency or other
governmental authority or of any arbitrator, (b) to the best
of our knowledge, do not and will not violate, result in any
violation of, constitute (whether immediately or after notice,
after lapse of time or after both notice and lapse of time) any
default under any agreement or instrument to which the NFL is a
party or by which the NFL is bound, (c) do not and will not
violate or result in any violation of (i) the constitution,
by-laws, rules, regulations and practices of the NFL or
(ii) any resolution or other action of record of the members
of the NFL and (d) have been duly authorized by each
necessary action of the members of the NFL.
- Each authorization, approval, permit
and consent from, each registration and filing with, each
declaration and notice to, and each other act by, any Person (as
such term is defined in the Stadium Lease) required as a
condition of the execution, delivery or performance of the
Joinder by the NFL has been duly obtained, made, given or done
and is in full force and effect.
- The Joinder (a) has been duly
executed and delivered by the NFL and (b) constitutes a
legal, valid and binding obligation of the NFL, enforceable
against the NFL in accordance with its terms, subject, as to
enforcement, to (i) applicable bankruptcy, insolvency,
moratorium and similar statutes affecting creditors' remedies
generally and (ii) general equitable principles that may
limit the availability of injunctive relief or the remedy of
specific performance.
- The execution, delivery to you and
performance by the Bills of the Stadium Lease have been duly
authorized by each necessary action of the members of the NFL.
Very truly yours,
SCHEDULE 9.4
SCHEDULE OF OPERATING/GAME DAY EXPENSE
REIMBURSEMENT PAYMENTS
| Reimbursement Date |
Percentage of Operating/Game Day Expense Reimbursement Due
|
| August 1 |
Thirty-Four Percent
(34%)
|
| November 1 |
Thirty-Four Percent
(34%)
|
| February 1 |
Sixteen Percent (16%)
|
| May 1 |
Sixteen Percent (16%)
|
CORPORATE:154806_15 (3BG6_F)
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|