EXHIBIT 10.63
FIRST AMENDMENT
TO
NAMING, PROMOTIONAL AND SPONSORSHIP AGREEMENT
Dated as of January 1, 2004
The parties to this First Amendment to Naming, Promotional and Sponsorship
Agreement (this "Amendment") are Select Medical Corporation, a Delaware
corporation ("Sponsor"), and Philadelphia Eagles, LLC, a Pennsylvania limited
liability company ("Eagles").
RECITALS
A. NovaCare, Inc., a Delaware corporation ("NovaCare"), and Philadelphia
Eagles Limited Partnership, a Delaware limited partnership ('PELP") have entered
into a Naming, Promotional and Sponsorship Agreement dated October 1, 1997 (such
agreement, as assumed and confirmed by Sponsor pursuant to the Assumption
referred to below, and as amended hereby, the "Naming Rights Agreement"),
pursuant to which NovaCare obtained certain rights with respect to the Eagles
Team. Capitalized terms used but not defined herein have the meanings given to
them in the Naming Rights Agreement.
B. Pursuant to a Consent and Assumption dated November 19, 1999 (the
"Assumption"), Sponsor assumed and agreed to pay, perform and discharge all of
NovaCare's liabilities and obligations under the Naming Rights Agreement,
whether matured or unmatured, fixed or contingent, and whether arising on or
after the date of the Assumption.
C. Eagles is the successor in interest to PELP and owns and operates the
Eagles Team and has the right to grant sponsorship rights with respect to the
Eagles Team.
D. Pursuant to the Eagles Lease, Eagles Stadium Operator, LLC ("ESO") has
the right to operate, and to exploit certain commercial, advertising and related
opportunities at, the football-based stadium located at the southeast corner of
11th Street and Pattison Avenue in Philadelphia, Pennsylvania, currently named
Lincoln Financial Field (as such stadium may be renamed from time to time, the
"New Stadium").
E. Sponsor and Eagles now wish to amend the Naming Rights Agreement on the
terms set forth below.
NOW, THEREFORE, in consideration of the mutual representations, warranties
and covenants contained herein, the parties agree as follows:
1. Amendments to Naming Rights Agreement.
(a) Article I of the Naming Rights Agreement is hereby amended as
follows:
(i) A new definition of "Affiliate" is added as follows:
"'Affiliate' shall mean, with respect to a specified
Person, any other Person
directly or indirectly controlled by, controlling, or
under common control with the specified Person."
(ii) A new definition of "City" is added as follows: "'City'
shall mean The City of Philadelphia."
(iii) A new definition of "Commonwealth" is added as follows:
"'Commonwealth' shall mean The Commonwealth of
Pennsylvania."
(iv) A new definition of "Eagles Lease" is added as follows:
"'Eagles Lease' shall mean the Sublease and Development
Agreement, dated December 7, 2001, between Eagles (as
successor to Philadelphia Eagles Limited Partnership, a
Delaware limited partnership) and the Philadelphia
Authority for Industrial Development ("PAID"), as
assigned, together with any amendments or replacements
thereto."
(v) The definition of "Home Game" is amended by removing and
replacing the existing definition with the following
definition: "'Home Game' shall mean any Game played at
the New Stadium."
(vi) A new definition of "Stadium Marks" is added as follows:
"'Stadium Marks' shall mean the logos, name, trademarks,
trade names, service marks and any copyrighted design
elements of (or related to) the New Stadium."
(vii) The definition of "New Stadium" is amended by removing
and replacing the existing definition with the following
definition: "'New Stadium' shall mean the football-based
stadium located at the southeast corner of 11th Street
and Pattison Avenue in Philadelphia, Pennsylvania,
currently named Lincoln Financial Field (as such stadium
may be renamed from time to time)."
(viii) A new definition of "NovaCare Optional Services" is
added as follows: "'NovaCare Optional Services" shall
mean those physical therapy, occupational therapy,
rehabilitation, conditioning and nutritional services
requested by the Eagles pursuant to Article V.H."
(ix) A new definition of "Other Events" is added as follows:
"'Other Events' shall mean events held at the New
Stadium other than Home Games, including, without
limitation, (i) events sponsored or conducted by the
City or the Commonwealth and (ii) Private Events."
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(x) A new definition of "Private Events" is added as
follows: "'Private Events' shall mean events held at the
Stadium Premises that are not open to the general
public."
(xi) A new definition of "Stadium Premises" is added as
follows: "'Stadium Premises' shall mean the
approximately 43 acres of land located at the southeast
corner of 11th Street and Pattison Avenue, in the
Thirty-Ninth Ward of the City of Philadelphia, together
with the New Stadium."
(xii) A new definition of "Stadium Standards" is added as
follows: "'Stadium Standards' shall mean the rules,
regulations, standards, guidelines and manuals governing
the use, occupancy and operation of the New Stadium, as
established and amended by ESO from time to time."
(xiii) The definition of "Use Restrictions" is amended by
removing and replacing the existing definition with the
following definition: "'Use Restrictions' shall mean the
applicable provisions of all (i) Laws; (ii) NFL Rules;
and (iii) contractually imposed requirements of any
location, site or medium where (or through which) any
right, benefit or privilege granted to NovaCare may be
held, presented or transmitted, including the Stadium
Standards and other restrictions imposed on users or
advertisers at the New Stadium, in each case, as they
may be adopted, amended, supplemented or otherwise
changed from time to time; provided, however, that
clause (iii) shall not include any contractual
requirements applicable to the NovaCare Complex that may
adversely affect NovaCare's rights that have not been
approved by NovaCare, which approval shall not be
unreasonably withheld, conditioned or delayed."
(b) All references in the Naming Rights Agreement and this Amendment
to "Eagles" shall be deemed to mean Philadelphia Eagles, LLC, a Pennsylvania
limited liability company. All references in the Naming Rights Agreement and
this Amendment to "NovaCare" shall be deemed to mean Select Medical Corporation,
a Delaware corporation.
(c) Article III.A of the Naming Rights Agreement is amended by
removing the words "will provide for NovaCare's benefit" and replacing them with
the words "will provide, or cause to be provided, for NovaCare's benefit".
(d) Article III.B(ii) of the Naming Rights Agreement is amended by
removing and replacing the existing text in its entirety with the following:
"(ii) the exclusive right to receive Name recognition on the
facade of the main office complex; the marquee at the entrance
to the NovaCare Complex; the road/directional signage leading
to the NovaCare Complex
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(to the extent Eagles control such signage); four (4)
locations in the center of the practice fields; the goal pads
on the practice fields; the facade of the press conference
podium; permanent signage in either the Eagles Team's
conditioning room or locker room as agreed by NovaCare and
Eagles; one (1) sign on NovaCare's rehabilitation center at
the NovaCare Complex; and on all apparel worn by key facility
(such as groundskeepers) and Training Staff. The precise size
and location of all Name recognition described under the
preceding sentence shall be proposed by Eagles and subject to
the approval of NovaCare, which shall not be unreasonably
withheld. All such recognition shall comply with all Use
Restrictions applicable to the NovaCare Complex and, subject
to Article XIII.B (with respect to renaming and other changes)
and Article V.J (with respect to apparel to be provided by
NovaCare), shall be created and installed by Eagles at its
expense, except that NovaCare shall provide any required
artwork and design at its expense as and when reasonably
requested by Eagles; and"
(e) Article III.D of the Naming Rights Agreement is amended removing
and replacing the existing text in its entirety with the following:
"D. During the Term, the Eagles shall not grant any
Person the right to display signage on the rooftop of the main
office complex or the indoor practice facility at the NovaCare
Complex. If, at any time during the Term, the Eagles display
any signage on either rooftop (it being acknowledged that such
signage may not reference any Person other than the Eagles and
the Team), the Eagles will provide NovaCare with commensurate
signage on such rooftop."
(f) Article III of the Naming Rights Agreement is amended by adding
the following Article III.F and Article III.G:
"F. NovaCare acknowledges that: (a) third parties may be
granted the right to use all or a portion of the New Stadium,
or to advertise or promote products or services at certain
Other Events, including, without limitation, the Super Bowl,
certain college or high school football games, concerts,
soccer games, major national or international championship
athletic events, (b) that during certain Other Events, Eagles
may be required to remove, obscure, mask, cover or obstruct
(collectively, "Obscure") certain of NovaCare's advertising at
the New Stadium if (i) reasonably necessary for the conduct or
performance of such Other Event, (ii) required by Law during
such Other Event, (iii) reasonably necessary to meet the
religious objections of any user of the New Stadium during
such Other Event, or (iv) required by the third party user of
the New Stadium because of exclusive sponsorship agreements it
may have. If the New Stadium is hosting the Olympics or the
Olympic Trials, if required by the sanctioning body, (x)
Eagles may cause any of NovaCare's signage and name
recognition to be Obscured for the duration of such events
(and for a
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reasonable period before and after such events for set-up and
break-down), but in no event shall such signage or name
recognition be Obscured during any Home Game, (y) NovaCare
shall have no right to receive certain rights, benefits and
privileges granted to NovaCare under the this Agreement with
respect to such events, and (z) NovaCare acknowledges that
third parties (including Category Competitors) may be granted
the right to advertise or promote certain products and
services (including competing products in the Category) at the
New Stadium during and with respect to such events. NovaCare
and Eagles acknowledge and agree that none of the foregoing
(whether or not it includes advertising for a Category
Competitor or for competing products or services in the
Category) shall be a violation of this Agreement."
"G. The precise size and location of any advertising
opportunities at the New Stadium provided pursuant to this
Agreement shall be determined by Eagles in its sole
discretion. All of NovaCare's signage and other advertising at
the New Stadium (a) shall comply with and be subject to all
Use Restrictions applicable to the New Stadium, (b) shall be
subject to Eagles' approval rights under Article VI.B, and (c)
subject to the following three sentences, shall be initially
created and installed by Eagles (or its designee) at Eagles'
expense (except that NovaCare shall provide any required
artwork and design, including any revisions, at NovaCare's
expense in accordance with Article VI.C. In the event NovaCare
wishes to change, replace or reinstall any advertising sign,
such change, replacement or reinstallation shall (w) be at
NovaCare's sole cost and expense, and NovaCare shall pay all
related costs and expenses incurred by Eagles and their
respective Affiliates, (x) be performed by one or more vendors
previously approved by Eagles for such purpose, (y) comply
with all Use Restrictions, and (z) be subject to Eagles'
approval rights in accordance with Article VI.B. All artwork
and design submitted pursuant to this Article VI.G shall be
customary for the type of sign or other display Eagles intends
to display at the applicable location in the New Stadium. With
respect to any advertising intended for electronic display,
NovaCare shall provide, at NovaCare's sole cost and expense,
all creative elements of such advertising (including all
software) in the form reasonably required by Eagles. Eagles
shall incorporate such creative elements into the actual New
Stadium advertising, subject to its approval rights in
accordance with Article VI.B. Eagles shall only be required to
activate any electronic or illuminated signage during events
at the New Stadium other than Private Events."
(g) Article IV.B of the Naming Rights Agreement is hereby amended by
removing and replacing the words "any new Stadium" in clause (vi) and the
defined term "Veterans Stadium" in the final parenthetical with the defined term
"the New Stadium".
(h) Clause (i) of Article VI.B of the Naming Rights Agreement is
amended by removing and replacing the existing text in its entirety with the
following:
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"(i) all commercials, advertisements, promotions and
other activities authorized by Eagles under this Agreement,
whether constituting a Promotion or any aspect of NovaCare
Marketing, and all proposed uses of the NovaCare Marks at the
NovaCare Complex or the New Stadium (including as part of the
Name) shall be subject to Eagles' review and prior approval,
which may be granted or withheld in Eagles' reasonable
discretion,"
(i) All references in the Naming Rights Agreement and this Amendment
to "Eagles Indemnitees" shall include ESO, all other Affiliates of Eagles, and
their respective direct and indirect, past, present and future owners, officers,
directors, managers, members, partners, employees, licensees, successors and
assigns.
(j) Article XVI of the Naming Rights Agreement is hereby amended by
removing and replacing the existing notice address for Sponsor and the Eagles
with the following notice addresses:
If to NovaCare: If to Eagles:
Select Medical Corporation Philadelphia Eagles, LLC
4718 Old Gettysburg Road NovaCare Complex
Mechanicsburg, Pennsylvania 17055 One NovaCare Way
Attention: General Counsel Philadelphia, Pennsylvania 19145
Attention: Chief Marketing Officer
with a copy to the same address to
the attention of Joe Banner
(k) Article XX of the Naming Rights Agreement is hereby amended by
removing and replacing the existing text in its entirety with the following:
"Nothing in this Agreement is intended or shall be construed to give any other
Person (other than the Eagles Indemnitees and the NovaCare Indemnitees), any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained in this Agreement."
(l) Exhibit "A" to the Naming Rights Agreement is hereby amended by
removing and replacing the existing text of paragraphs 1, 2, 3, 4, 5, 10, 11,
12, 13, 14, 22, 32, 38, 41, 42 and 45 in its entirety with the words
"[Intentionally omitted.]" and by adding the following paragraphs:
"46. Two (2) real-time minutes of LED signage on the lower
fascia of the inner bowl of the New Stadium during each Eagles
Home Game. NovaCare will receive additional exposure at each
Other Event that Eagles control, the exact time of the
exposure to be determined based on the nature of the Other
Event in the Eagles' sole discretion."
"47. Eagles shall cause radio station WYSP ("WYSP") to provide
NovaCare with radio commercial inventory on WYSP having a
value (as
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determined based on WYSP's standard advertising rates) of at
least Sixty Thousand Dollars ($60,000), as NovaCare, Eagles
and WYSP mutually agree prior to each NFL Season (the "WYSP
Package"); provided, however, that without limiting any of
Eagles' rights hereunder, if Eagles is unable to provide
NovaCare with all or any portion of the WYSP Package for any
reason (including, without limitation, due to WYSP's refusal
to agree to a proposal made by Eagles or NovaCare), NovaCare
shall receive substitute benefits or advertisements in lieu of
the WYSP Package in accordance with Article VIII.A."
"48. NovaCare shall receive one (1) billboard mention during
each preseason Game local television broadcasts produced by
Eagles, each Inside the Eagles television show and each
television show featuring the Eagles Team's starting
quarterback (currently entitled the "Donovan McNabb Show").
Each mention will be approximately 10 seconds in length."
"49. NovaCare shall receive the right to utilize areas of the
NovaCare Complex up to eight (8) times each Contract Year for
business purposes that are permitted under the terms of the
Lease and Development Agreement dated April 20, 2000 between
the Philadelphia Authority for Industrial Development and
Philadelphia Eagles Development, L.P. If NovaCare desires to
use the Complex, NovaCare shall submit a written proposal to
Eagles describing its proposed use of the Complex at least
thirty (30) days prior to the date of proposed use. Such
proposal shall set forth with specificity the audio/visual,
food and beverage and space requirements for such proposal.
Eagles shall approve or reject such request in its reasonable
discretion based on the existing schedule of events and other
uses of the Complex. The exact accommodation of NovaCare's
request with regard to its audio/visual, food and beverage and
space requirements (including, without limitation, the
specific areas of the Complex that may be used by NovaCare)
shall be determined by Eagles in its sole discretion. NovaCare
shall be solely responsible for all costs, expenses and
liabilities arising from or in connection with such use,
including, without limitation, any audio/visual equipment,
technical staff, catering or other incremental costs provided
by Eagles to NovaCare, and shall provide Eagles with copies of
all required permits and with all certificates or insurance
for insurance coverage in the types and amounts determined by
Eagles in its reasonable discretion."
"50. NovaCare shall receive two (2) 5' x 5' and two (2)
4'10.5" x 8' 10.5" fixed advertising positions located on the
concourse of the New Stadium. The exact display location of
each position shall be determined by Eagles in its sole
discretion. NovaCare shall provide any required artwork and
design, subject to approval by Eagles in accordance with
Article VI."
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"51. NovaCare shall have the right to use a club area at the
New Stadium two (2) times per year for a private event. The
exact club area permitted to be used and the exact time of the
events shall be subject to approval by Eagles, which approval
Eagles may withhold in its sole discretion. Such use will only
be permitted on days where no Home Game, Other Event or
Private Event has been previously scheduled. NovaCare shall be
solely responsible for all costs, expenses and liabilities
arising from or in connection with such use, including,
without limitation, all catering, technical staff, sound
equipment or other incremental costs, and shall provide Eagles
with copies of all required permits and with all certificates
or insurance for insurance coverage in the types and amounts
generally required by Eagles of third-party stadium users."
"52. NovaCare shall receive four (4) Club Seats located in the
Club II level and twelve (12) lower-level seats to each
pre-season, regular season and playoff Home Game (excluding
any Super Bowl). NovaCare's right to use the Club Seats will
be subject to, and NovaCare shall comply with, the terms and
conditions of ESO's standard Club Seat License Agreement,
which is attached hereto as Exhibit "H" and shall be
incorporated into this Agreement as if expressly stated
herein."
"53. NovaCare shall have the right to use Lower Level Suite
#51 at each pre-season, regular season and playoff Home Game
(excluding the Super Bowl). NovaCare's right to use the Suite
will be subject to, and NovaCare shall comply with, the terms
and conditions ESO's standard Suite License Agreement, which
is attached hereto as Exhibit "I" and shall be incorporated
into this Agreement as if expressly stated herein."
"54. NovaCare shall receive four (4) cheerleader appearances
each year, each appearance being attended by two (2)
cheerleaders. Each appearance will last one (1) hour and will
include an autograph session. The exact cheerleaders will be
determined by Eagles in its sole discretion. The cost of the
cheerleader appearance fee and transportation will be the
responsibility of Eagles. The date of each appearance shall be
determined by Eagles in its sole discretion."
"55. NovaCare shall receive six (6) appearances each year by
the mascot of the Eagles Team. Each appearance will last one
(1) hour. The cost of the mascot appearance fee and
transportation will be the responsibility of Eagles. The date
of each appearance shall be determined by Eagles in its sole
discretion."
"56. NovaCare shall receive Presenting Partner status for the
annual 'Eagles NFL 101 for Females' Event. The date and
location of the event will be determined by Eagles in its sole
discretion. NovaCare will receive logo identification on all
event promotional and marketing materials
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produced by Eagles, including general event promotional
advertisements and invitations, ten (10) VIP invitations to
the event, and one (1) corporate banner display (3' high x 5'
wide) at the event. NovaCare will have use of one (1) expo
table at and will have the opportunity to promote health
product and service initiatives. Eagles reserves the right to
designate other Presenting Partners and other sponsors for the
event, as determined by Eagles in its sole discretion."
"57. Four (4) pre-game brunch invitations to one (1) Eagles
Home Game. The exact Game shall be mutually determined by
NovaCare and Eagles."
"58. One (1) fixed, backlit signage position (3'8" x 15'10")
on the east side of the inner seating bowl of the New Stadium.
The exact display location shall be determined by ESO in its
sole discretion."
"59. NovaCare shall receive a small card or sign displaying
NovaCare's name and logo, which shall be placed in front of
all microphones used for press conferences in the media room
at the NovaCare Complex. The exact size and design of such
card or sign shall in all respects be subject to the Eagles'
approval rights under Article VI."
Sponsor acknowledges and agrees that each of the Promotions
provided for in paragraphs 46-59 above shall in all respects
be subject to Eagles' substitution rights under Article VIII.A
and Article XXI.
(m) For purposes of the Naming Rights Agreement, Exhibit "H" and
Exhibit "I" attached hereto shall be deemed to be Exhibit "H" and Exhibit "I",
respectively, to the Naming Rights Agreement and, by this reference, shall be
incorporated into the Naming Rights Agreement as if expressly stated therein."
2. Additional Amendments. In addition to the amendments provided for under
Section 1 above, the Naming Rights Agreement is hereby further amended as
follows:
(a) The first sentence of Article IV.C of the Naming Rights
Agreement shall be amended by replacing the words "Except as expressly set forth
in Section III.B and IV.B" with the words "Except as expressly set forth in
Sections III.B, IV.B and V.H,".
(b) The last sentence of Article IV.C of the Naming Rights Agreement
shall be deleted.
(c) The introductory language in Article V of the Naming Rights
Agreement shall be amended by replacing the words "Required Products and
Services" with the words "NovaCare Optional Services".
(d) Article V.H of the Naming Rights Agreement shall be replaced in
its entirety with the following:
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"H. The Eagles shall be responsible for obtaining (but shall
have no liability to NovaCare if it fails to obtain) all rehabilitation,
occupational therapy, physical therapy, conditioning and nutritional services,
all medical and training supplies, and all rehabilitation equipment as may be
required from time to time by the Eagles and the coaches and players of the
Eagles Team and, except as expressly provided in this Article V.H, NovaCare
shall have neither the right nor the obligation to provide or pay for any such
products or services. NovaCare shall have no approval or consultation rights in
connection with the hiring or termination of any member of the Eagles' Training
Staff or any reporting function changes. If the Eagles wish to acquire any
rehabilitation, occupational therapy, physical therapy, conditioning and
nutritional services for its coaches or players, then NovaCare shall have the
first opportunity to provide such NovaCare Optional Services. In such event,
before soliciting or acquiring such services from any third party, the Eagles
will request that NovaCare provide the Eagles with an estimate of the cost of
the requested NovaCare Optional Services (an "Estimate") and, if NovaCare elects
to provide such services, NovaCare's Estimate shall offer to provide such
requested services at a price equal to the lowest price NovaCare charges any
customer for similar services within the Philadelphia market. Notwithstanding
the foregoing, however, (i) NovaCare shall have the right, in its sole
discretion, to elect not to provide any particular NovaCare Optional Service,
and (ii) if either (A) the Eagles are in any way dissatisfied with the price,
quality or timing of the requested NovaCare Optional Services or (B) NovaCare
does not supply the requested NovaCare Optional Services, then the Eagles shall
have the right, in its sole discretion, to acquire any and all such services
from any third party (including, without limitation, a Category Competitor),
provided that such third party is not granted the right to identify itself as a
supplier to the Eagles. With respect to medical training supplies,
rehabilitation equipment and, with the exception of NovaCare Optional Services,
all other products and services in the Category, the Eagles shall have the
unrestricted right to solicit or acquire such products or services (or any brand
thereof) from any person or entity."
(e) Article V.I of the Naming Rights Agreement shall be replaced in
its entirety with the following:
"I. If and only to the extent requested by the Eagles, NovaCare
shall take all steps necessary to cause any member of the Eagles' Training Staff
to become an employee of the Eagles. Notwithstanding the foregoing sentence, the
Eagles shall have no obligation to hire any NovaCare employee or agent as an
employee of the Eagles unless the Eagles so elects in its sole discretion."
(f) Article V.K of the Naming Rights Agreement shall be placed in
its entirety with the following:
"K. During each Contract Year, NovaCare shall provide to
Eagles, at NovaCare's sole cost and expense, fifty (50)
complimentary magnetic resonance imaging appointments (each, an
"MRI") for use by the Eagles' coaches, players and other full-time
employees, as they may be allocated by the Eagles in its sole
discretion. MRI's shall be scheduled by NovaCare on a priority
basis, subject to NovaCare's existing
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appointments. In the event the Eagles exceed fifty (50) MRIs in any
Contract Year, NovaCare may bill the Eagles, and the Eagles will pay
for such MRIs, at the rate specified by the Pennsylvania Workers
Compensation Act. If, at any time during the Term, NovaCare no
longer provides MRIs at the NovaCare Complex, NovaCare may satisfy
its obligations under this Article V.K by providing, in lieu of such
MRIs, NovaCare Optional Services or other products or services
requested by the Eagles having substantially the same value as the
MRIs, as determined by the agreement of the parties (or if they
cannot agree, by an arbitrator in accordance with Article XXII)."
(g) Article VI.A(i) of the Naming Rights Agreement shall be amended
by replacing the words "a sponsor of the Eagles and as the exclusive provider
(or "official provider" or any similar designation approved by the Eagles in
their reasonable discretion)" with the following "a sponsor of the Eagles and as
a provider (and may refer to itself as the "exclusive provider", "official
provider" or any similar designation approved by the Eagles in its reasonable
discretion)".
(h) The second sentence of Article XIII.A of the Naming Rights
Agreement shall be amended by deleting the words "and furnish the Required
Products and Services".
(i) Article XXI(ii) of the Naming Rights Agreement shall be deleted
in its entirety.
(j) Article XXIV(ii) of the Naming Rights Agreement shall be deleted
in its entirety.
(k) Exhibit "B" to the Naming Rights Agreement shall be replaced in
its entirety with Exhibit "B" attached hereto.
(l) Exhibits "C" and "F" to the Naming Rights Agreement shall be
deleted in their entirety.
3. Performance of Obligations by Affiliates. Sponsor acknowledges and
agrees that any action to be performed under the Naming Rights Agreement by
Eagles may be performed, in the sole discretion of Eagles, by ESO or any other
Affiliate of Eagles. Sponsor further acknowledges and agrees that, for purposes
of the Naming Rights Agreement and this Amendment, each reference to "Eagles"
shall be deemed to be a reference to the party acting in each case, be it
Eagles, ESO or any other Affiliate of Eagles.
4. Waiver and Release. Sponsor, for itself and on behalf of its
affiliates, successors and assigns (collectively, "Releasors") forever releases
and discharges Eagles, its members and Affiliates, and any and all of their
respective direct and indirect, past, present and future members, managers,
shareholders, officers, directors, partners, owners, contractors, employees,
attorneys and agents (collectively, "Releasees"), from any and all claims,
demands, causes of action, and liabilities of any kind whatever (upon any legal
or equitable theory, whether contractual, common law, statutory, federal, state,
local or otherwise, and including but not
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limited to any claims for attorneys' fees, or costs or disbursements of any
kind) (collectively, "Claims") that any of Releasors ever had, now has, or may
hereafter have against Releasees by reason of any action, omission, transaction,
or occurrence, whether known or unknown, arising out of any failure by Eagles to
provide any of the advertising, naming, promotional and other rights required to
be provided by Eagles under the Naming Rights Agreement, but solely to the
extent such failure occurred on or prior to the date of this Agreement. For the
avoidance of doubt, nothing in this Section 4 shall be deemed to release or
discharge any Claims arising out of any such failure that may occur after the
date of this Agreement.
5. Representations and Warranties.
(a) Eagles represents and warrants to Sponsor that Eagles is the
successor in interest to PELP. Sponsor represents and warrants to the Eagles
Parties that, pursuant to the Assumption, Sponsor (i) has assumed all
obligations of NovaCare, Inc. under the Naming Rights Agreement and (ii) has
become and, as of the date hereof, remains bound by the terms and provisions of
the Naming Rights Agreement to the extent applicable to NovaCare thereunder.
(b) Each of Sponsor and Eagles hereby reaffirms, as of the date
hereof, its respective representations and warranties contained in Article XIX
of the Naming Rights Agreement (after giving effect to this Amendment, and
unless expressly stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such earlier
date). In addition, each of Sponsor and Eagles represents and warrants, that:
(a) such party has the full corporate (or in the case of Eagles, limited
liability company) power and legal authority to enter into and perform this
Amendment in accordance with its terms; (b) all necessary corporate (or in the
case of Eagles, limited liability company) approvals for the execution,
delivery, and performance by such party of this Amendment have been obtained;
(c) this Amendment has been duly executed and delivered by such party and
constitutes a legal, valid and binding obligation of such party enforceable in
accordance with its terms.
(c) Sponsor represents, warrants and covenants that it (a) possesses
(and shall possess) all applicable governmental permits and approvals necessary
to conduct business in the City and the Commonwealth, (b) is not (and shall not
become) an adjudicated tax delinquent with respect to any City or Commonwealth
tax which remains unpaid, and (c) is not (and shall not become) otherwise
lawfully prohibited from doing business with the City, the Commonwealth or PAID.
Upon the reasonable request of Eagles or ESO given from time to time, Sponsor
shall provide any requesting party with such information, as they shall request
to confirm compliance with the preceding sentence. Any breach of the
representations, warranties or covenants in this Section 6(c) shall entitle
Eagles to terminate the Naming Rights Agreement under Article IX thereof.
6. Miscellaneous
(a) This Amendment shall be deemed to be an amendment with respect
to the Naming Rights Agreement, and the Naming Rights Agreement, as amended
hereby, is hereby ratified, approved and confirmed in each and every respect.
All references in the Naming Rights Agreement to "this Agreement," and all
references to the Naming Rights Agreement in any other
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document, instrument, agreement or writing, shall hereafter be deemed to refer
to the Naming Rights Agreement as amended hereby.
(b) This Amendment shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania applicable to agreements made
and to be performed entirely in Pennsylvania.
(c) Nothing in this Amendment shall be deemed to entitle Sponsor or
the Eagles to a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained
in the Naming Rights Agreement in similar or different circumstances.
(d) This Amendment may be executed in any number of counterparts,
each of which will be deemed an original, but all of which taken together shall
constitute one single agreement.
(e) Except as expressly provided in this Amendment, the Naming
Rights Agreement shall not be modified, amended or waived in any respect, and
shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
SELECT MEDICAL CORPORATION PHILADELPHIA EAGLES, LLC
By: /s/ M.F. JACKSON By: /s/ [ILLEGIBLE]
-------------------- --------------------
Name: M.F. JACKSON Name: [ILLEGIBLE]
Title: SVP & CFO Title: SVP
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