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Exhibit 4.44
LICENSE AGREEMENT
License Agreement made and entered into effective January 1, 2001 by
and among OS SUITES, LTD., a Florida limited partnership ("OS"), XXXXX XXXXX
TROPHY SUITES, INC., a Florida corporation ("HT"), XXXXX TIPPS HOLDING COMPANY,
a Florida Corporation ("Holding Company"), XXXXXXX X. XXXXX ("Xxxxx") and XXXXX
X. XXXXX, XX. ("Xxxxx").
RECITALS
1. OS is engaged in the business of selling and leasing portable
luxury boxes for the purpose of hospitality and entertaining at
sporting events ("Business"); and
2. OS identifies the Business by the use of the trade names
"Outback Sports" and "Trophy Suites" and certain logos, emblems and
other indicia incorporating "Outback Sports" or "Trophy Suites"
(collectively "Proprietary Marks").
3. Xxxxx and Tipps have served as the Chief Executive Officer
and Chief Operating Officer, respectively, of OS and are the sole
shareholders, directors and officers of Holding Company.
4. Holding Company is the sole shareholder and owns all of the
outstanding shares of capital stock of HT.
5. Xxxxx and Xxxxx are the only directors and officers of HT.
6. HT desires to obtain from OS the exclusive right and license
to use certain assets of OS for the purpose of engaging in the
Business.
7. OS is willing to license to HT the use of certain of its
assets pursuant to the terms of this Agreement.
NOW THEREFORE, intending to be legally bound, in consideration of the
mutual covenants contained herein, and other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the parties agree as
follows:
1. Recitals. The above recitals are true and correct and
incorporated herein by reference.
2. License of Proprietary Marks and Tangible Assets. OS hereby
grants to HT during the Term of this Agreement the exclusive right and
license (the "License") to utilize, solely in the conduct of the
Business, the Proprietary Marks specified on EXHIBIT A attached hereto
and the tangible personal property consisting of portable luxury
boxes, trailers and other equipment specified on EXHIBIT A (the
"Tangible Assets"). The term Tangible Assets shall also include all
Replacement Property as described in SECTION 7 hereof. The Tangible
Assets and Proprietary Marks are hereinafter collectively referred to
as the "Licensed Assets".
3. Term. Unless sooner terminated as provided in this Agreement,
this Agreement and the term of the License of the Licensed Assets
provided in SECTION 2 hereof shall commence on January 1, 2001 and
shall expire and terminate on December 31, 2010.
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4. Limitation on Use of Outback Sports. Notwithstanding SECTION
2, HT's right and license to use the Proprietary Marks shall be
limited as provided in this SECTION 4 and in SECTION 11. HT shall not
have any right whatsoever to use the word "Outback" except as part of
"Outback Sports, and may only use "Outback Sports" until December 31,
2002. OS and its affiliates retain all rights to use the word Outback,
alone or in conjunction with any other words, except OS and its
affiliates shall not use "Outback Sports" in the conduct of any
business. All rights of HT to use "Outback Sports" or the word Outback
shall terminate on December 31, 2002 and thereafter HT shall make no
use whatsoever of the word Outback. HT shall not use "Outback Sports"
in a manner that, in the reasonable opinion of OS, would cause third
parties to believe HT is an affiliate of OS or OS's affiliates or that
OS or OS's affiliates are responsible for the obligations of HT.
5. License Fee. In consideration of the License granted herein,
HT shall pay to OS the following license fees totaling Seventeen
Million Dollars ($17,000,000) ("License Fees") on the dates indicated:
July 31, 2001 $ 750,000
November 30, 2001 $ 250,000
July 31, 2002 $ 750,000
November 30, 2002 $ 250,000
July 31 of each year
From 2003 to 2010
Inclusive $ 1,406,250
November 30 of each year
From 2003 to 2010
Inclusive $ 468,750
6. Transfer Upon Payment. Upon payment to OS of the total
License Fees of $17,000,000 in the amounts and on or before the dates
specified in SECTION 5, HT shall have the option to purchase, and OS
shall be obligated to sell to HT, all right, title and interest of OS
in and to the Tangible Assets (as existing on the date of transfer)
and the Proprietary Marks, but excluding any of the Proprietary Marks
that contain the word "Outback", for a purchase price of One Thousand
Dollars ($1,000). The purchase option contained in this SECTION 6
shall be exercised by giving written notice of exercise to OS within
sixty (60) days after final payment of the License Fees to OS,
provided that if the purchase option is not exercised in said sixty
(60) day period, OS shall give written notice of termination to HT and
the purchase option contained in this Section 6 shall terminate only
if the purchase option remains unexercised twenty (20) days after such
written notice of termination. The closing of the purchase shall take
place at the principal office of OS thirty (30) days from the date of
the notice of exercise. At the closing OS shall deliver to HT all
documents necessary, in the reasonable opinion of counsel for HT, to
transfer to and vest in HT all of OS' right, title and interest in the
Tangible Assets and the Proprietary Marks (excluding any that contain
the word "Outback"). The purchase option contained in this SECTION 6
shall immediately lapse and be null and void immediately upon any
default in payment of any of the
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License Fees in the amounts and on or before the payment dates
specified in SECTION 5 (unless cured within the time periods provided
for in this Agreement).
7. Replacement Property.
A. Notwithstanding any contrary provision of this
Agreement, HT shall have the right to sell the units
designated as Series II Units on EXHIBIT A for a net purchase
price per Series II Unit at least equal to the then purchase
price for a new Series III Unit. A Series III Unit shall mean
a Unit manufactured by Florida Structures in accordance with
the specifications designated FL26-00. All sales proceeds
from the sale of each Series II Unit shall be used solely to
purchase a new Series III Unit of the same type.
B. All assets purchased by HT with revenue from the
Business, including, but not limited to, proceeds from the
sale of any of the Licensed Assets and all assets purchased
with the proceeds from insurance policies on any of the
Licensed Assets (collectively "Replacement Property") shall
be the property of OS and titled in OS' name and shall
constitute a part of the Licensed Assets for all purposes of
this Agreement.
C. HT shall not obtain any loan or financing, in
whatever form or however structured, that is secured by any
form of lien on any of the Tangible Assets, including any
Replacement Property, except with the prior written consent
of OS, which consent may be withheld or granted subject to
such conditions as OS shall determine in its sole discretion.
HT shall not obtain any purchase money financing the
proceeds of which are to be used solely to acquire new
assets, except with the prior written consent of OS, which
consent shall not be unreasonably withheld.
8. Representations, Warranties and Covenants of OS.
A. OS is a limited partnership duly organized and
existing in good standing under the laws of the State of
Florida. OS is now, and at all times during the term of this
License Agreement, shall be authorized and registered to
transact business in every other state in which the failure
to register would have a materially adverse effect on the
business of OS. The execution and delivery of this License
Agreement and OS's performance of its obligations hereunder
do not and will not violate or constitute a breach of OS's
Certificate of Limited Partnership, Agreement of Limited
Partnership, any other agreement to which OS is a party, or
any restriction of law or contract to which OS is subject.
B. OS agrees to complete the purchase of certain
suites, and other items and equipment from Florida Structures
as specified on EXHIBIT B, and to pay to Florida Structures
the unpaid balance of approximately Nine Hundred Fourteen
Thousand Four Hundred Dollars ($914,400), subject to
applicable offsets and holdbacks. The assets purchased by OS
from Florida Structures shall be part of the Tangible Assets.
D. C. OS represents and warrants that it is the
sole owner of the Tangible Assets, free and clear of any
liens, claims, security interests or other encumbrances,
except for payment claims of the manufacturers of the
Tangible Assets. During the term
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of this License Agreement OS shall take all commercially
reasonable measures to protect and defend its title to the
Licensed Assets against the claims of all persons arising
from events first occurring on or before January 1, 2001,
except for (i) claims of the manufacturers of the Tangible
Assets, including, but not limited to, claims of Xxxxxx
Building Systems and Mid-Michigan Great Dane (Holden) and
(ii) claims arising from events first occurring on or after
January 1, 2001.During the term of this License Agreement,
and so long as there is no uncured default under this License
Agreement, neither OS nor any affiliate of OS shall engage in
the business of renting portable luxury suites, nor own any
interest in any entity engaged in the business of renting
portable luxury suites.
E. OS will not: (i) permit any liens, charges,
encumbrances or security interests of any kind or character
(other than liens in favor of the manufacturers of the
Licensed Assets) to attach to any of the Licensed Assets or
OS' interest in this License Agreement unless in each case
the holder of the lien, charge, encumbrance or security
interest provides HT with a commercially reasonable
non-disturbance agreement; (ii) permit any of the Licensed
Assets to be levied upon under any legal process; (iii) sell,
transfer, lease, or otherwise dispose of any Licensed Assets
or any interest therein, or offer to do so, unless in each
case the transferee agrees to performs the obligations of OS
under this Agreement that relate to the transferred assets.
9. Covenants of HT, Xxxxx and Xxxxx.
A. HT, Xxxxx and Tipps represent and warrant to OS that
Holding Company employs Xxxxx and Xxxxx pursuant to the
employment agreements attached hereto as EXHIBITS C and D,
respectively (hereinafter collectively "Employment
Agreements") Xxxxx and Tipps each covenants and agrees with
OS not to commit any breach, default or violation of his
Employment Agreement. Holding Company, Xxxxx and Xxxxx hereby
acknowledge and agree that OS is a specifically intended
third party beneficiary of the Employment Agreements and OS
shall have an independent right to enforce the Employment
Agreements, including, but not limited to, the covenants
against competition contained in the Employment Agreements.
B. HT and Holding Company agree not to pay, and Xxxxx
and Tipps agree not to accept, total combined compensation
from HT, Holding Company, Xxxxx Xxxxx Paradise Golf, Ltd. and
Xxxxx Tipps Paradise Golf, Inc., of whatever kind or however
called, including but not limited to, salary, bonus,
commissions, and non-accountable expense reimbursements, in
excess of the amounts specified on EXHIBIT E.
C. Holding Company, Xxxxx and Xxxxx agree not to modify
either of the Employment Agreements without the prior written
consent of OS.
D. HT, Holding Company, Xxxxx and Tipps agree that HT
and Holding Company shall not make any distributions or
payments to its shareholders, of whatever kind or character,
including, but not limited to, dividends, loans or
redemptions; provided, however, that if Holding Company
elects to be taxed as an S corporation or otherwise is a
"pass through" entity for federal income tax purposes for any
taxable year HT may make distributions to its shareholders
for each such taxable year in an aggregate amount equal to
the aggregate actual amount of additional tax, if any,
payable by the shareholders (as
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determined by competent tax advisors) for such taxable year
as a result of any taxable income passed through to the
shareholders for such taxable year.
E. Notwithstanding subsection D above, HT shall make
distributions of net cash flow (as determined in accordance
with generally accepted accounting principles) remaining
after any distributions under subsection D and after the
establishment of reasonable reserves for HT's business, to
its shareholders provided that simultaneously with all such
distributions HT shall pay to OS an amount equal to the
aggregate amount being distributed to the shareholders. Such
payment to OS shall be a prepayment of the License Fees
payable under Section 5 hereof. Any such pre-payments shall
not reduce the scheduled installments of License Fees, but
shall be applied to the last scheduled License Fee payments.
If in any subsequent year HT demonstrates, to OS' reasonable
satisfaction, an inability to make payment of the scheduled
License Fees, HT shall receive credit against the scheduled
License Fee for any pre-payment of License Fees made under
this Section.
10. Representations, Warranties, Covenants and Obligations of HT
and Holding Company.
A. Permits and Licenses. HT at all times during the
term of this License Agreement will hold in full force and
effect all permits, business licenses and franchises
necessary for HT to carry on its business operations, as then
being conducted, in conformity with all applicable laws and
regulations.
B. Good Standing; No Violation. HT and Holding Company
are corporations duly organized and existing in good standing
under the laws of the State of Florida. HT and Holding
Company are now, and at all times during the term of this
License Agreement, shall be authorized and registered to
transact business in every other state in which the failure
to register would have a materially adverse effect on the
business of HT or Holding Company. The execution and delivery
of this License Agreement and HT's performance of its
obligations hereunder do not and will not violate or
constitute a breach of HT's or Holding Company's Articles of
Incorporation or Bylaws, any other agreement to which HT or
Holding Company is a party, or any restriction of law or
contract to which HT or Holding Company is subject.
C. Information Delivered. All information, certificates
or statements, including, without limitation, all financial
statements, given to OS pursuant to this License Agreement
are and shall be true and complete when given and are not,
and shall not be, materially misleading in any way.
D. Name; Location of Assets. The name stated above in
the preamble to this License Agreement is the correct name of
HT, and HT does not conduct business under any other name,
except for Trophy Suites, OS Sports and Outback Sports. HT
shall immediately notify OS of any change of name, identity
or organizational structure. HT's principal place of business
is located at the address shown in the notice provision of
this Agreement.
E. Defense of Claims. HT will defend the Licensed
Assets against, and hold OS harmless from, the claims and
demands of all individuals or other legal entities at any
time claiming the same or any interest therein arising from
events first occurring on or after January 1, 2001 and from
and against the claims of Xxxxxx Building Systems, a
manufacturer
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of suites, in the approximate amount of Five Hundred Forty
Thousand Dollars ($540,000) and the claims of Mid-Michigan
Great Dane (Holden), a manufacturer of certain of the
Tangible Assets, in the approximate amount of Three Hundred
Thousand Dollars ($300,000).
F. No Liens, Levies or Transfers. HT will not: (a)
permit any liens, charges, encumbrances or security interests
of any kind or character to attach to any of the Licensed
Assets or HT's interest in this License Agreement; (b) permit
any of the Licensed Assets to be levied upon under any legal
process; (c) without the prior written consent of OS, sell,
transfer, lease, or otherwise dispose of any Licensed Assets
or any interest therein, or offer to do so; or (d) permit
anything to be done that will impair the value of any of the
Licensed Assets.
G. Records of Tangible Assets. HT shall keep accurate
and complete records respecting the Tangible Assets in such
form as OS may reasonably require. From time to time, when OS
so requires, HT shall furnish to OS a statement certified by
HT, and in such form and containing such information as may
be requested by OS, showing the current status and location
of the Tangible Assets. At reasonable times, OS may examine
the Tangible Assets and HT's records pertaining to the
Tangible Assets, wherever the Tangible Assets or such records
may be located, and make copies of any of such records. HT
shall assist and cooperate fully with OS in such endeavors.
H. Tax Matters. HT has filed and will file during the
Term of this Agreement, all Federal, state and local tax
returns and other reports it is required to file and shall
pay or make adequate provision for payment of all such taxes,
assessments, and other governmental charges, except those
contested in good faith. HT will pay promptly when due all
taxes and assessments upon the Licensed Assets, or for use or
operation of the Licensed Assets, or upon this Agreement,
including sales, use, documentary, intangible or other taxes,
except those contested in good faith. HT shall further pay
all expenses and, upon request, take any action reasonably
deemed advisable by OS to preserve the Licensed Assets.
I. Preservation of Licensed Assets. At its option, OS
may pay, for the account of HT, any taxes, liens or security
interests or other encumbrances at any time levied or placed
on the Licensed Assets, may pay for insurance on the Licensed
Assets, and may pay for the maintenance and preservation of
the Tangible Assets. HT agrees to reimburse OS promptly on
demand for any payment made or expense incurred by OS
pursuant to the foregoing authorization.
J. Maintenance and Repairs. HT shall at its expense
during the term of this Agreement keep the Tangible Assets in
good working order and condition, ordinary wear and tear only
excepted, and HT shall at its expense make all repairs,
replacements and servicing thereof. All such repairs and
replacements shall immediately become the property of OS and
part of the Tangible Assets for all purposes hereof. In the
event of the termination of this Agreement as a result of
default by HT, HT shall, at its expense, return the then
Tangible Assets to OS to such location(s) within the
Continental United States as OS may designate in good
operating order, repair, condition and appearance with all
engineering changes prescribed by the Manufacturer prior
thereto incorporated therein. HT shall immediately notify OS
in writing of any damage or loss of or to the
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Tangible Assets, whether arising out of the alleged or
apparent improper manufacture, functioning or operation of
the Tangible Assets or otherwise.
K. Ownership. The Licensed Assets shall at all times
remain the property of OS. OS may affix plates to the
Tangible Assets indicating OS's ownership. Except as
specifically provided in SECTION 7A, HT shall not sell,
assign, transfer or otherwise alienate any of the Licensed
Assets without the prior written consent of OS, which consent
may be granted or denied in OS' sole discretion. OS and HT
hereby confirm their intent that the Licensed Assets shall
always remain and be deemed personal property and that this
License Agreement shall be a true license and not a sale or
financing transaction. HT shall not assign, sell, pledge or
hypothecate this License Agreement or any of its rights
hereunder without the prior written consent of OS, which
consent may be granted or denied in OS's sole discretion.
L. Disclaimer of Warranties. HT acknowledges and agrees
that Xxxxx and Xxxxx have made the selection of the Tangible
Assets. HT acknowledges and agrees that it has received no
statements or representations from OS and has placed no
reliance upon any statements or representations of OS,
including, but without limitation, with respect to the size,
design, capacity, condition, qualify, durability and
manufacture of the Tangible Assets and suitability of the
Tangible Assets for HT's purposes. OS MAKES NO
REPRESENTATIONS OR WARRANTIES TO HT OR ANY OTHER PERSON OF
ANY KIND, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER,
INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE SIZE,
DESIGN, CAPACITY, CONDITION, QUALITY, DURABILITY, SUITABILITY
OR PERFORMANCE OF THE TANGIBLE ASSETS, THEIR MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, OR WITH RESPECT TO
PATENT INFRINGEMENT OR THE LIKE. OS SHALL HAVE NO LIABILITY
TO HT FOR ANY DEMAND, CLAIM, COST, LOSS, DAMAGE OR LIABILITY
OF ANY KIND OR NATURE WHATSOEVER, NOR SHALL THERE BE ANY
ABATEMENT OF LICENSE FEES, ARISING OUT OF OR IN CONNECTION
WITH (i) THE DEFICIENCY OR INADEQUACY OF THE TANGIBLE ASSETS
FOR ANY PURPOSE, WHETHER OR NOT KNOWN OR DISCLOSED TO HT,
(ii) ANY DEFICIENCY OR DEFECT IN THE TANGIBLE ASSETS, (iii)
THE USE OR PERFORMANCE OF THE TANGIBLE ASSETS OR (iv) ANY
LOSS OF BUSINESS OR OTHER CONSEQUENTIAL LOSS OR DAMAGE
WHETHER OR NOT RESULTING FROM ANY OF THE FOREGOING. HT SHALL
DEFEND, INDEMNIFY AND HOLD OS HARMLESS AGAINST ANY AND ALL
DEMANDS, CLAIMS, COSTS, LOSSES AND LIABILITIES ARISING OUT OF
OR IN CONNECTION WITH THE DESIGN, MANUFACTURE, POSSESSION,
OPERATION OR USE OF THE TANGIBLE ASSETS. OS AGREES TO PROVIDE
HT WITH ALL WARRANTIES RUNNING TO THE TANGIBLE ASSETS FROM
THE MANUFACTURER.
M. Taxes. HT agrees to pay and to indemnify, defend and
hold OS, its successors and assigns harmless from all claims,
demands, assessments, fees and taxes, including, without
limitation, franchise, sales, use, gross receipts, ad
valorem, value added, stamp, excise or other taxes, levies,
imposts, duties, charges or withholding of any nature,
together with any penalties, fines or interest thereon
("Impositions"), arising out of the transactions contemplated
by this License Agreement imposed against OS, its successors
and assigns, HT or any item of Licensed Assets by any
Federal, state or local government
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or taxing authority with respect to any item of Licensed
Assets, or the purchase, ownership, delivery, leasing,
possession, use, operation, return or other disposition
thereof, or upon or with respect to the income or other
proceeds received with respect to any item of Licensed
Assets, or upon or with respect to this License Agreement
(excluding, however, Federal, state and local income taxes).
All Impositions payable by HT pursuant hereto shall be
payable, on written demand of OS, which demand shall be
accompanied by copies of invoices, bills or other appropriate
evidence, in an amount which, after taking into account all
taxes required to be paid by OS, its successors and assigns
in respect of the receipt thereof, shall equal such
Imposition.
N. Insurance Proceeds. With respect to proceeds
received under any insurance policy for loss, destruction or
damage to the Tangible Assets, it is agreed as between OS and
HT that any proceeds resulting from a total or partial loss
of any item of Tangible Assets will be applied in reduction
of HT's obligations under SECTION 5 of this License
Agreement, unless such proceeds are used solely for
replacement or repair of such items.
O. Risk of Loss on HT. All risks of physical damage to
or loss, destruction or interference with the use of the
Tangible Assets, howsoever caused, shall be borne by HT and
no such damage, loss, destruction or interference shall
impair HT's obligations under this License Agreement. If any
item of Tangible Assets is rendered unusable as a result of
any physical damage to, or loss or destruction of, the
Tangible Assets, HT shall give to OS immediate notice thereof
and this License Agreement shall continue in full force and
effect without any abatement of License fees. HT shall
determine, within fifteen (15) days after the date of
occurrence of such damage or destruction, whether such item
of Tangible Assets can be repaired. In the event HT
determines that such item of Tangible Assets can be repaired,
HT shall cause such item of Tangible Assets to be promptly
repaired at HT's expense. In the event HT determines that the
item of Tangible Assets cannot be repaired, then HT shall
promptly replace such item at HT's expense. HT shall be
entitled to insurance proceeds to the extent of the cost of
such repairs or replacements. All assets purchased with
insurance proceeds shall be Replacement Property as defined
in SECTION 7 hereof and shall be the property of OS.
11. Proprietary Marks.
A. Restrictions on Use. With respect to HT's licensed
use of the Proprietary Marks pursuant to this Agreement, HT
agrees that:
(i) HT shall use only the Proprietary Marks
specified on EXHIBIT A, and shall use them only in
the manner approved and permitted by OS in
accordance with the License Agreement.
(ii) HT shall use the Proprietary Marks only for
the operation of the Business.
(iii) During the term of this Agreement and any
renewal hereof, HT shall identify itself as the
owner of the Business in conjunction with any use of
the Proprietary Marks, including, but not limited
to, uses on invoices, order forms, receipts, and
contracts, as well as the display of a notice in
such content and form and at such conspicuous
locations as necessary to identify HT as owner of
the Business.
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(iv) HT's right to use the Proprietary Marks is
limited to such uses as are authorized under this
Agreement, and any unauthorized use thereof shall
constitute an infringement of OS's rights.
(v) HT shall not use the Proprietary Marks to
incur any obligation or indebtedness on behalf of
OS.
(vi) HT shall not use the word Outback as part
of its corporate or other legal name.
(vii) HT shall comply with OS's instructions in
filing and maintaining the requisite trade name or
fictitious name registrations, and shall execute any
documents deemed necessary by OS or its counsel to
obtain protection for the Proprietary Marks or to
maintain their continued validity and
enforceability.
(viii) In the event that litigation involving the
Proprietary Marks is instituted or threatened
against HT, HT shall promptly notify OS and shall
cooperate fully with OS in defending or settling
such litigation.
B. Ownership of Proprietary Marks. HT expressly
understands and acknowledges that:
(i) OS is the owner of all right, title and
interest in and to the Proprietary Marks and the
goodwill associated with and symbolized by the
Proprietary Marks.
(ii) The Proprietary Marks are valid and serve
to identify the Business.
(iii) HT shall not directly or indirectly contest
the validity of OS's ownership of the Proprietary
Marks.
(iv) HT's use of the Proprietary Marks pursuant
to this Agreement does not give HT any ownership
interest or other interest in or to the Proprietary
Marks, except the license granted by this Agreement.
12. Accounting and Records.
A. Monthly Reports. HT shall submit to OS no later than
the sixteenth (16th) day of each month during the term of
this Agreement a monthly and fiscal year-to-date profit and
loss statement (which may be unaudited) for HT and the
Business.
B. Quarterly Reports. HT shall submit to OS, in the
form prescribed by OS, a quarterly balance sheet (which may
be unaudited) within fifteen (15) days after the end of each
calendar quarter. Each such statement shall be signed by HT
or by HT's treasurer or chief financial officer attesting
that it is true and correct.
C. Annual Reports. HT shall submit to OS complete
audited annual financial statements of HT prepared by an
independent certified public accountant satisfactory to
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OS, within ninety (90) days after the end of each fiscal year
of HT, showing the results of operations of HT and the
Business during said fiscal year. Such statements shall
include, at a minimum, a balance sheet, profit and loss
statement and statement of sources and uses of funds.
D. Additional Reports. HT shall submit to OS, for
review or auditing, such other forms, reports, records,
information, and data as OS may reasonably designate, in the
form and at the times and places reasonably required by OS,
upon request and as specified from time to time in writing.
E. Expenses. All reports, forms and other information
required by this SECTION 12 shall be prepared at HT's expense
and shall be submitted to OS at the address indicated in
SECTION 18 hereof.
F. Reconciliation. On or before January 31, 2001 HT
shall prepare and submit to OS a reconciliation of all
revenue, cash, expenses and unpaid liabilities of the
Business as of December 31, 2000 in accordance with generally
accepted accounting principles, together with payment of all
funds due OS from the operation of the Business prior to
January 1, 2000. It is the intent of the parties that OS
shall receive the benefit of and be responsible for all
income, cash, expenses and payables of the Business to the
extent same relate to periods ending prior to January 1,
2000, except that HT shall be responsible to Xxxxxx Building
Systems and Mid-Michigan Great Dane (Holden) for all amounts
owed to them. HT shall receive the benefit of and be
responsible for all income, cash, expenses and payables of
the Business to the extent same relate to periods on or after
January 1, 2001 and all amounts owed Xxxxxx Building Systems
and Mid-Michigan Great Dane (Holden). OS shall have the right
to review and approve the reconciliation. Any unresolved
dispute shall be submitted to PriceWaterhouseCoopers for
final determination. Upon approval of the reconciliation HT
or OS, as the case may be, shall make appropriate payment to
the other.
13. Insurance.
A. Requirement. HT shall procure, prior to the
Effective Date, and shall maintain in full force and effect
at all times during the term of this Agreement, at HT's
expense, an insurance policy or policies protecting HT and
OS, and their respective officers, directors, partners, and
employees, against any demand or claim with respect to
personal injury, death, or property damage, or any loss,
liability, or expense whatsoever arising or occurring from,
upon or in connection with the Business and the Licensed
Assets.
B. Insurors' Required Policies. Such policy or policies
shall be in form satisfactory to OS, and shall be written by
a responsible carrier or carriers acceptable to OS who are
duly licensed by the appropriate state authorities and have a
Best Guide rating of not less than A. Such policy or policies
shall include, at a minimum (except as additional coverages
and higher policy limits may reasonably be specified by OS
from time to time), the following:
(i) Comprehensive general liability insurance,
equivalent to General Liability Form July 98 in the
amount of One Million Dollars ($1,000,000) per
occurrence and Two Million Dollars ($2,000,000)
annual aggregate.
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(ii) Liquor liability insurance in such amounts
as OS shall reasonably specify if HT engages in the
sale or serving of alcoholic beverages. HT shall
require all third parties who sell or serve
alcoholic beverages in connection with the use of
the Licensed Assets to provide HT with Certificates
of Insurance evidencing liquor liability coverage of
at least One Million Dollars ($1,000,000) per
occurrence, Two Million Dollars ($2,000,000) annual
aggregate and Five Million Dollars ($5,000,000)
excess coverage. All such insurance shall name OS as
an additional insured.
(iii) Umbrella liability insurance, following
form, in the amount of Twenty Million Dollars
($20,000,000) per occurrence, Twenty Million Dollars
($20,000,000 annual aggregate.
(iv) Worker's compensation insurance as may be
required by statute or rule of each state or
locality in which the Business operates or in which
any of the Tangible Assets are located, and
employer's liability insurance with limits in
amounts at least equal to those previously carried
by OS in the operation of the Business or such
higher limits as OS shall reasonably require.
(v) Special form coverage (including earthquake
if applicable) for the full cost of replacement of
the Tangible Assets and all other property in which
HT may have an interest with no coinsurance clause
and a replacement cost clause attached.
(vi) Business income insurance that specifically
provides for payment to OS of the License Fees
required by SECTION 5.
C. Effect of OS's Insurance. HT's obligation to obtain
and maintain the foregoing policy or policies in the amounts
specified shall not be limited in any way by reason of any
insurance which may be maintained by OS, nor shall HT's
performance of that obligation relieve it of liability under
the indemnity provisions set forth in SECTION 16 of this
Agreement.
D. OS as Named Insured. OS shall be named as an
additional insured on all liability and property damage
insurance policies and OS shall be named as a loss payee with
respect to OS's interest in License Fees under business
income insurance policies and OS's interest, if any, in real
and/or personal property under liability and property damage
insurance policies. All insurance policies shall contain a
provision that OS, although named as an insured and/or loss
payee, shall nevertheless be entitled to recover under said
policies on any loss occasioned to OS or its servants, agents
or employees by reason of the negligence of HT or its
servants, agents or employees.
E. Evidence of Insurance. At least thirty (30) days
prior to the time any insurance is first required to be
carried by HT, and thereafter at least thirty (30) days prior
to the expiration of any such policy, HT shall deliver to OS
Certificates of Insurance evidencing the proper coverage with
limits not less than those required hereunder. Such
Certificates, with the exception of Workers' Compensation,
shall name OS, and each of its partners, subsidiaries,
affiliates, directors, agents and employees as additional
insureds, and shall
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expressly provide that any interest of same therein shall not
be affected by any breach by HT of any policy provisions for
which such Certificates evidence coverage. Further, all
Certificates shall expressly provide that no less than thirty
(30) days' prior written notice shall be given OS in the
event of material alteration to or cancellation of the
coverages evidenced by such Certificates.
F. Right to Cure. Should HT, for any reason, fail to
procure or maintain the insurance required by this Agreement,
as such requirements may be revised from time to time by OS
in writing, OS shall have the right and authority (without,
however, any obligation to do so) immediately to procure such
insurance and to charge same to HT, which charges, together
with a reasonable fee for OS's expenses in so acting, shall
be payable by HT immediately upon notice. The foregoing
remedies shall be in addition to any other remedies OS may
have.
14. Transfer of Interest.
A. Transfer by OS. OS shall have the right to transfer
or assign this Agreement and all or any part of its rights or
obligations herein to any person or legal entity.
B. Transfer by HT, Holding Company, Xxxxx or Xxxxx. HT
understands and acknowledges that the rights and duties set
forth in this Agreement are personal to HT, and that OS has
entered into this Agreement in reliance on Xxxxx and Tipps'
business skill, financial capacity, and character. HT,
Holding Company, Xxxxx and Xxxxx represent and warrant to OS
that (i) Xxxxx and Tipps are the sole shareholders of Holding
Company, with Xxxxx owning eighty percent (80%) of the
outstanding shares and Tipps owning twenty percent (20%) of
the outstanding shares, and (ii) Holding Company is the sole
shareholder of HT and owns all of the outstanding shares of
HT. Accordingly, neither HT nor any immediate or remote
successor to any part of HT's interest in this License
Agreement or the Business, nor Holding Company, Xxxxx or
Tipps, shall sell, assign, transfer, convey, give away,
hypothecate, pledge or otherwise dispose of, alienate or
encumber, whether or not for consideration ("Transfer") any
direct or indirect interest in this License Agreement, the
Business or in HT or in Holding Company, without the prior
written consent of OS, which consent may be granted or denied
in OS' sole discretion; provided, however, OS shall not
unreasonably withhold its consent to a transfer by Xxxxx or
Tipps of shares of Holding Company to a family trust or other
entity for estate planning purposes if after such transfer
Xxxxx or Xxxxx, respectively, serve as managing trustee or
otherwise retain voting control of such entity and the
beneficial ownership of such entity is held by the spouse
and/or lineal descendants of Xxxxx or Tipps.
C. Ownership of HT and Holding Company.
(i) During the term of this License Agreement,
(i) Xxxxx and Xxxxx shall remain the sole
shareholders of Holding Company, in the percentages
now owned, and (ii) Holding Company shall remain the
sole shareholder of HT..
(ii) Copies of HT's and Holding Company's
Articles of Incorporation, Bylaws, or other
governing documents, and any amendments thereto,
including
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the resolution of the Board of Directors authorizing
entry into this Agreement shall be promptly
furnished to OS.
(iii) HT and Holding Company shall maintain stop
transfer instructions against the transfer on its
records of any equity securities. Each certificate
representing an ownership interest in HT and Holding
Company shall have conspicuously endorsed upon its
face a statement in a form satisfactory to OS that
it is held subject to, and that further assignment
or transfer thereof is subject to, all restrictions
imposed upon assignments by this Agreement.
(iv) HT and Holding Company shall maintain a
current list of all owners of record and all
beneficial owners of any interest in or securities
of HT and Holding Company and shall immediately
notify OS of any proposed change.
D. Transfer Upon Death or Mental Incapacity. Upon the
death or mental incapacity of Xxxxx or Tipps, the executor,
administrator, or personal representative of the deceased
person shall transfer his shares in Holding Company to the
survivor of Xxxxx or Xxxxx, or a third party approved by OS
within twelve (12) months after such death or mental
incapacity. Until such transfer has been consummated in
accordance with the provisions of this SECTION 14, OS shall
have the right, but not the obligation, to assume direct
management control of the Business on an interim basis,
including, without limitation, installing representatives of
OS, at HT's expense. If the interest is not disposed of
within twelve (12) months from the date of death or
incapacity, OS may terminate this Agreement.
E. Non-Waiver of Claims. OS's consent to a transfer of
any interest in this License Agreement, the license granted
herein or in HT shall not constitute a waiver of any claims
it may have against the transferring party, nor shall it be
deemed a waiver of OS's right to demand exact compliance with
any of the terms of this Agreement by the transferee.
F. Offerings by HT or Holding Company. Securities of HT
or Holding Company may be offered for sale, by private or
public offering or otherwise, only with the prior written
consent of OS, which consent may be conditioned on the
proceeds of such sale being used to prepay the License Fees
due under SECTION 5. All materials required for such offering
by federal or state law shall be submitted to OS for review
prior to their being filed with any government agency; and
any materials to be used in any exempt offering shall be
submitted to OS for review prior to their use. No HT or
Holding Company offering shall imply (by use of the
Proprietary Marks or otherwise) that OS is participating in
an underwriting, issuance, or offering of HT or Holding
Company or OS securities; and OS's review of any offering
shall be limited solely to the subject of the relationship
between HT and OS. HT, Holding Company and the other
participants in the offering shall fully indemnify OS in
connection with the offering. For each proposed offering, HT
or Holding Company shall reimburse OS for its reasonable
costs and expenses associated with reviewing the proposed
offering, including, without limitation, legal and accounting
fees and salaries of OS's personnel. HT or Holding Company
shall give OS written notice, and provide all materials
relating to the offering at least thirty (30) days prior to
the date of commencement of any offering or other transaction
covered by this SECTION 14.
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15. Default and Termination.
A. Default by HT; Without Notice or Opportunity to
Cure. HT shall be in default under this License Agreement,
without notice to HT or opportunity to cure, if: (a) HT or
Holding Company shall become insolvent or make a general
assignment for the benefit of creditors; or (b) if a petition
in bankruptcy is filed by HT or Holding Company or such a
petition is filed against and not opposed by HT or Holding
Company; or (c) if HT or Holding Company is adjudicated
bankrupt or insolvent; or (d) if a xxxx in equity or other
proceeding for the appointment of a receiver of HT or Holding
Company or other custodian for HT's or Holding Company's
business or assets is filed and consented to by HT or Holding
Company or if a receiver or other custodian (permanent or
temporary) of HT's or Holding Company's assets or property,
or any part thereof, is appointed by any court of competent
jurisdiction; or (e) if proceedings for a composition with
creditors under any state or federal law should be instituted
by or against HT or Holding Company; or (f) if a final
judgment against HT or Holding Company remains unsatisfied or
of record for thirty (30)days or longer (unless supersedeas
bond is filed); or (g) if HT or Holding Company is dissolved;
or (h) if execution is levied against HT's or Holding
Company's business or property; or (i) if suit to foreclose
any lien or mortgage against any property of HT or Holding
Company is instituted against HT or Holding Company and not
dismissed within thirty (30) days; or (j) if the real or
personal property of HT or Holding Company shall be sold
after levy thereupon by any sheriff, marshal, or constable.
B. Default by HT; Notice. HT shall be in default under
this License Agreement, without any opportunity to cure the
default, effective immediately upon receipt of notice by HT,
upon the occurrence of any of the following events:
(i) If HT at any time ceases to operate or
otherwise abandons the Business.
(ii) If HT, Xxxxx or Xxxxx is convicted of a
felony, or a crime involving moral turpitude, or any
other crime or offense that OS believes is
reasonably likely to have an adverse affect on the
Business, the Proprietary Marks, the goodwill
associated therewith, or the Tangible Assets, unless
as to Xxxxx or Tipps the other individual purchases
the interest of the convicted person as provided in
Section 10D within thirty (30) days of conviction
(iii) If HT, Holding Company, Xxxxx or Xxxxx or
any person hereafter holding any ownership or voting
interest in HT or Holding Company purports to
transfer any rights or obligations under this
Agreement or any interest in HT or Holding Company
to any third party without OS's prior written
consent.
(iv) If HT knowingly maintains false books or
records, or knowingly submits any false reports to
OS.
C. Cure. HT shall be in default under this License
Agreement upon the occurrence of any of the following events,
unless cured to the satisfaction of OS within thirty (30)
days from the date of written notice of default from OS (ten
(10) days in the case of
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payment of money owed to OS), or such lesser period of time
as OS may reasonably require based on the nature of the
default:
(i) If HT fails to comply with any of the
covenants, obligations and agreements imposed by
this Agreement or;
(ii) If HT fails, refuses, or neglects promptly
to pay any License Fees or other monies owing to OS
or its subsidiaries or affiliates when due or;
(iii) If HT fails, refuses, or neglects to obtain
OS's prior written approval or consent as required
by this Agreement or;
(iv) If a threat or danger to public health or
safety results from the operation of the Business
or;
(v) If an approved transfer is not effected
within a reasonable time, as required by SECTION 15
hereof, following the death or mental incapacity of
HT, Xxxxx or Tipps or;
(vi) If HT misuses or makes any unauthorized use
of the Proprietary Marks or otherwise materially
impairs the goodwill associated therewith or OS's
rights therein or;
(vii) If HT engages in any business or markets
any service or product under a name or xxxx which,
in OS's opinion, is confusingly similar to the
Proprietary Marks or;
(viii) If Xxxxx or Tipps breach or commit a
default under their respective Employment Agreements
with HT; or
(ix) If there is an uncured default by Xxxxx
Tipps Paradise Golf, Ltd. under that certain License
Agreement of even date herewith between OS Golf
Marketing, Ltd., Xxxxx Xxxxx Paradise Golf, Ltd.,
Holding Company, Xxxxx and Tipps.
D. Remedies Upon Default. Upon the occurrence of any
default, OS may at its option do one or more of the
following: (a) proceed either at law or in equity to enforce
performance by HT of the applicable terms of this License
Agreement or to recover damages for breach thereof, (b) by
notice to HT terminate this License Agreement, which
termination shall not affect HT's liability for breach of
this Agreement, (c) cause HT to (and HT agrees that it
shall), upon written demand of OS and at HT's expense,
promptly return the Tangible Assets to OS in accordance with
all of the terms of SECTION 10J hereof, or OS, at its option,
may enter upon the premises where such Tangible Assets are
located and take immediate possession of (whereupon HT's
right to possession shall terminate) and remove the same, all
without liability to HT for damage to property or otherwise,
(d) sell the Tangible Assets at a public or private sale,
with or without notice to HT or advertisement, or otherwise
dispose of, hold, use, operate, lease to others or keep idle
such Tangible Assets, all as OS in its sole discretion may
determine and all free and clear of any rights of HT and
without any duty to account to HT for such action or
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inaction or for any proceeds with respect thereto, and/or (e)
OS may exercise any other right or remedy which may be
available to it under applicable law or in equity. In
addition, HT shall continue to be liable for all its
indemnities and other obligations under this License
Agreement and for all legal fees and other costs and expenses
arising in connection with the foregoing defaults or the
exercise of the OS's remedies, including without limitation
placing any Tangible Assets in the condition required by
SECTION 10J hereof. No remedy referred to in this License
Agreement is intended to be exclusive, but each shall be
cumulative and in addition to any other remedy referred to
above or otherwise available to OS at law or in equity. No
express or implied waiver by OS of any default shall
constitute a waiver of any other default by HT or a waiver of
any of OS's rights and the subsequent acceptance of rental
payments by OS shall not be deemed a waiver of any prior
existing default regardless of OS's knowledge thereof. To the
extent permitted by applicable law, HT hereby waives any
rights conferred by statute or otherwise which may require OS
to sell, lease, or otherwise use any of the Tangible Assets
in mitigation of OS's damages or which may otherwise limit or
modify any of OS's rights or remedies under this License
Agreement.
E. Indemnification. HT hereby agrees to assume
liability for, and does hereby agree to indemnify, defend,
protect, save and keep harmless OS, its successors and
assigns from and against, and to pay OS promptly on demand,
the amount of any and all liabilities, obligations, losses,
damages, penalties, claims, actions, suits, costs, expenses
or disbursements (including legal fees and expenses) of any
kind and nature whatsoever ("Indemnified Amounts"), which may
be imposed on, incurred by or asserted against OS, or its
successors or assigns (whether or not also indemnified
against by the Manufacturer or any other person), in any way
relating to or arising out of this License Agreement or any
document contemplated hereby, or the operation of the
Business by HT, or the performance or enforcement of any of
the terms hereof, or in any way relating to or arising out of
the manufacture, purchase, acceptance, rejection, return,
lease, ownership, possession, use, condition, operation, sale
or other disposition of any item of Tangible Assets or any
accident in connection therewith (including without
limitation, latent and other defects, whether or not
discoverable). All Indemnified Amounts shall be payable on
demand in amounts which, after taking into account all taxes
required to be paid by OS in respect of the receipt thereof,
shall equal the Indemnified Amounts. HT agrees that OS shall
not be liable to HT for any liability, claim, loss, damage or
expense of any kind or nature caused by the inadequacy of any
item of Tangible Assets for any purpose or any deficiency or
defect therein or the use or maintenance thereof or any
repairs, servicing or adjustments thereto or any delay in
providing or failure to provide any thereof or any
interruption or loss of service or use thereof or any loss of
business.
16. Independent Contractor and Indemnification.
A. Relationship of Parties. It is understood and agreed
by the parties hereto that this Agreement does not create a
fiduciary relationship between them, that HT is an
independent contractor, and that nothing in this Agreement is
intended to constitute either party an agent, legal
representative, subsidiary, joint venturer, partner,
employee, or servant of the other for any purpose whatsoever.
B. Notice to Public. During the term of this Agreement
and any extensions hereof, HT shall hold itself out to the
public as an independent contractor operating the business
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pursuant to a license from OS. HT agrees to take such action
as may be requested by OS to do so, including, without
limitation, exhibiting a notice of that fact in a conspicuous
place on the Tangible Assets, the content of which OS
reserves the right to specify.
C. Lack of Authority. It is understood and agreed that
nothing in this Agreement authorizes HT to make any contract,
agreement, warranty, or representation on OS's behalf, or to
incur any debt or other obligation in OS's name; and that OS
shall in no event assume liability for, or be deemed liable
hereunder as a result of, any such action; nor shall OS be
liable by reason of any act or omission of HT in its conduct
of the Business or for any claim or judgment arising
therefrom against HT or OS.
D. Indemnification. HT hereby indemnifies and holds
harmless OS, its affiliates and OS's officers, directors and
employees, from and against any and all claims, liabilities,
debts, obligations, judgments and causes of action resulting
from, connected with, or arising out of, directly or
indirectly, HT's operation of the Business, including,
without limitation, negligence of HT, its agents and
employees and shall reimburse OS for all costs, including
attorney's fees, incurred in defending any such claim or
enforcing this indemnification.
17. Approvals and Waivers.
A. Request for Waiver. Whenever this Agreement requires
the prior approval or consent of OS, HT shall make a timely
written request to OS therefor, and such approval or consent
shall be obtained in writing.
B. No Reliance. OS makes no warranties or guarantees
upon which HT may rely, and assumes no liability or
obligation to HT, by providing any waiver, approval, consent,
or suggestion to HT in connection with this Agreement, or by
reason of any neglect, delay, or denial of any request
therefor.
C. No Waiver by OS. No failure of OS to exercise any
right or power reserved to it in this Agreement, or to insist
upon compliance by HT with any obligation or condition in
this Agreement, and no custom or practice of the parties at
variance with the terms hereof, shall constitute a waiver of
OS's rights to demand exact compliance with the terms of this
Agreement. Waiver by OS of any particular default shall not
affect or impair OS's rights with respect to any subsequent
default of the same or of a different nature. No delay,
omission, or forbearance on the part of OS to exercise any
right, option, duty, or power arising out of any breach or
default by HT under any of the terms, provisions, covenants,
or conditions hereof shall constitute a waiver by OS of its
right to enforce any such right, option, duty, or power, nor
shall such constitute a waiver by OS of any rights with
respect to any subsequent breach or default by HT. Subsequent
acceptance by OS of any payments due to it hereunder shall
not be deemed to be a waiver by OS of any preceding breach by
HT of any terms, provisions, covenants, or conditions of this
Agreement.
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18. Miscellaneous.
A. Notices. Any and all notices required or permitted
under this Agreement shall be in writing and shall be
personally delivered, sent by nationally recognized overnight
delivery service (e.g., Federal Express), or mailed by
certified or registered mail, return receipt requested, to
the respective parties at the following addresses unless and
until a different address has been designated by written
notice to the other party:
Notices to OS: OS Suites, Ltd.
0000 Xxxxx Xxxx Xxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Chief Executive Officer, and
Xxxxxx X. Xxxxx, Vice President and
General Counsel
Notices to HT: Xxxxx Xxxxx Trophy Suites, Inc.
0000 X. Xxxx Xxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Xx.
With a copy to:
Xxxxxxx X. Xxxxxxxx, Xx., Esq.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxx 00000
Any notice by certified or registered mail shall be
deemed given on the third business day following the date of
postmark. Any notice by a nationally recognized overnight
delivery service shall be deemed given on the date of
delivery to recipient as shown by the records of such
delivery service.
B. Entire Agreement. This Agreement, the documents
referred to herein, and the Exhibits hereto constitute the
entire, full, and complete Agreement between the parties
concerning the subject matter hereof, and supersede all prior
agreements, no other representations having induced HT to
execute this Agreement. Except for those permitted to be made
unilaterally by OS hereunder, no amendment, change, or
variance from this Agreement shall be binding on either party
unless mutually agreed to by the parties and executed by
their authorized officers or agents in writing.
C. Severability and Construction. Except as expressly
provided to the contrary herein, each portion, section, part,
term, and/or provision of this Agreement shall be considered
severable; and if, for any reason, any section, part, term,
and/or provision herein is determined to be invalid and
contrary to, or in conflict with, any existing or future law
or regulation by a court or agency having valid jurisdiction,
such shall not impair the operation of, or have any other
affect upon, such other portions, sections, parts, terms,
and/or provisions of this Agreement as may remain otherwise
intelligible; and the latter shall continue to be given full
force and effect and bind the parties hereto; and said
invalid portions, sections, parts, terms, and/or provisions
shall be deemed not to be a part of this Agreement.
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D. No Third Party Beneficiary. Except as expressly
provided to the contrary herein, nothing in this Agreement is
intended, nor shall be deemed, to confer upon any person or
legal entity other than HT, OS, and HT's and OS's respective
(and, as to HT, permitted) successors and assigns any rights
or remedies under or by reason of this Agreement.
E. Maximum Duty Imposed on HT. HT expressly agrees to
be bound by any promise or covenant imposing the maximum duty
permitted by law which is subsumed within the terms of any
provision hereof, as though it were separately articulated in
and made a part of this Agreement, that may result from
striking from any of the provisions hereof any portion or
portions which a court may hold to be unreasonable and
unenforceable in a final decision to which OS is a party, or
from reducing the scope of any promise or covenant to the
extent required to comply with such a court order.
F. Headings. All headings and captions in this
Agreement are intended solely for the convenience of the
parties, and none shall be deemed to affect the meaning or
construction of any provision hereof.
G. Construction. All references herein to the
masculine, neuter, or singular shall be construed to include
the masculine, feminine, neuter, or plural, where applicable;
and all acknowledgments, promises, covenants, agreements, and
obligations herein made or undertaken by HT shall be deemed
jointly and severally undertaken by all those executing this
Agreement on behalf of HT. Time is of the essence as to all
obligations under this Agreement.
H. Duplicate Originals. This Agreement may be executed
in one or more copies, and each copy so executed shall be
deemed an original.
I. Governing Law. This Agreement takes effect upon its
acceptance and execution by OS in Florida, and shall be
governed by, interpreted and construed under the laws of the
State of Florida, which laws shall be applied without giving
effect to the principles of comity or conflicts of laws
thereof, and which laws shall prevail in the event of any
conflict of law.
J. Jurisdiction and Venue. The parties agree that any
action brought by either party against the other in any
court, whether federal or state, shall be brought within the
State of Florida in Hillsborough County. Each party hereby
agrees to submit to the personal jurisdiction of such courts,
and hereby waives all questions of personal jurisdiction or
venue for the purpose of carrying out this provision,
including, without limitation, the claim or defense therein
that such courts constitute an inconvenient forum.
K. Remedies Cumulative. No right or remedy conferred
upon or reserved to OS by this Agreement is intended to be,
nor shall be deemed, exclusive of any other right or remedy
herein or by law or equity provided or permitted, but each
shall be cumulative of every other right or remedy.
L. Equitable Relief. Nothing herein contained shall bar
OS's right to obtain injunctive relief against threatened
conduct that will cause it loss or damages, under the usual
equity rules, including the applicable rules for obtaining
restraining orders and preliminary injunctions.
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M. Parties Bound. This Agreement shall be binding upon
the parties hereto and their respective successors, permitted
assigns, heirs, personal representatives and administrators.
N. Enforcement. In the event it is necessary for any
party to retain legal counsel or institute legal proceedings
to enforce the terms of this Agreement, including, without
limitation, obligations upon expiration or termination, the
prevailing party shall be entitled to receive from the
non-prevailing party, in addition to all other remedies, all
costs of such enforcement including, without limitation,
attorney's fees and court costs, and including appellate
proceedings.
O. Acknowledgement of HT. HT, Xxxxx and Xxxxx
acknowledge that they have conducted an independent
investigation of the Business, and recognize that the
business venture contemplated by this Agreement involves
business risks and that its success will be largely dependent
upon the ability of HT, Xxxxx and Tipps as an independent
businessman. OS expressly disclaims the making of, and HT
acknowledges that it has not received, any warranty or
guarantee, express or implied, as to the potential volume,
profits, or success of the business venture contemplated by
this Agreement.
P. Limitation of Obligations of Xxxxx, Xxxxx and
Holding Company. Xxxxx and Tipps are parties to this
Agreement only for purposes of, and shall have personal
liability for, only the covenants of Xxxxx and Xxxxx,
separately, contained in Section 9, the representations,
agreements and restrictions on transfer contained in SECTIONS
14B, 14C, 14D AND 14F, and the acknowledgement contained in
subsection 18O above. Holding Company is a party to this
Agreement only for purposes of, and shall have liability for,
only the covenants contained in Section 9, the
representations and warranties contained in Section 10B and
10C, and the representations, agreements and restrictions on
transfer contained in Sections 14B, 14C and 14F.
IN WITNESS WHEREOF, the parties hereto have duly executed, sealed, and
delivered this Agreement on the day and year first above written.
OS:
OS SUITES, LTD.,
a Florida limited partnership
By Its General Partner:
OUTBACK SPORTS, LTD.,
a Florida limited partnership
By its General Partner:
OUTBACK SPORTS, LLC., a Delaware
limited liability company
By:
-----------------------------
XXXXXX XXXXXXX, Manager
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HT:
XXXXX XXXXX TROPHY SUITES, INC.,
a Florida corporation:
Attest:
By:
---------------------------------- ----------------------------
XXXXX X. XXXXX, XX., Secretary XXXXXXX X. XXXXX, President
HOLDING COMPANY:
XXXXX TIPPS HOLDING COMPANY,
a Florida corporation
Attest:
By:
---------------------------------- ----------------------------
XXXXX X. XXXXX, XX., Secretar XXXXXXX X. XXXXX, President
XXXXX:
--------------------------------
XXXXXXX X. XXXXX, Individually
TIPPS:
--------------------------------
XXXXX X. XXXXX, XX., Individually
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