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Exhibit 4.45
LICENSE AGREEMENT
License Agreement made and entered into effective January 1, 2001 by
and among OS GOLF MARKETING, LTD., a Florida limited partnership ("OS"), XXXXX
XXXXX PARADISE GOLF, LTD., a Florida limited partnership ("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 golf related activities
including, but not limited to, procuring playing privileges at golf
courses and selling memberships which provide the purchaser with
playing privileges at such golf courses ("Business"); and
2. OS identifies the Business by the use of the trade names
"Outback Sports" and "Paradise Golf" and certain logos, emblems and
other indicia incorporating "Outback Sports" or "Paradise Golf"
(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 owner of all of the issued and
outstanding shares of capital stock of Xxxxx Xxxxx Paradise Golf,
Inc., a Florida corporation that is the sole general partner of HT and
owns an eight percent (80%) partnership interest in HT ("General
Partner").
5. Xxxxx and Tipps are the sole directors and officers of the
General Partner
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 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 and intangible property utilized by OS in the conduct of the
Business and more particularly described on EXHIBIT A (the "Assets").
The term Assets shall also include all Replacement Property as
described in SECTION 7 hereof. The Assets and Proprietary Marks are
hereinafter collectively referred to as the "Licensed Assets".
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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.
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 Five Million
Dollars ($5,000,000) ("License Fees") on the dates indicated:
July 31 of each year
From 2001 to 2010
Inclusive $375,000
November 30 of each year
From 2001 to 2010
Inclusive $125,000
In the event HT sells the Business or a controlling interest
in HT during the term of this Agreement, which sale shall only be done
with the prior written consent of OS as required by this Agreement, HT
shall pay to OS the first One Million Dollars ($1,000,000) of the sale
proceeds and fifty percent (50%) of the remainder of the sale proceeds
(collectively "OS Sale Proceeds"). In the event of such a sale OS
shall receive the Sale Proceeds in lieu of any further License Fee
payments, but OS shall retain all License Fee payments theretofore
received and HT shall remain liable for all unpaid License Fees prior
to the date of sale. For purposes of determining OS Sale Proceeds,
sale proceeds shall mean the gross sale price reduced only by the
expenses of sale, e.g., attorney fees, broker fee.
6. Transfer Upon Payment. Upon payment to OS of the total
License Fees of $5,000,000 in the amounts and on or before the dates
specified in SECTION 5, or upon the payment to OS of the Sale
Proceeds, 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 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
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
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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 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 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. 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.
B. 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 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.
C. 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 represents and warrants that it is the sole owner
of the Assets, free and clear of any liens, claims, security
interests or other encumbrances, except for payment claims of
the manufacturers of the Assets. During the term 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.
C. During the term of this License Agreement, and so
long as there is no uncured default under this License
Agreement, neither OS
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nor any affiliate of OS shall engage in a business that
competes with the Business, nor own any interest in any
entity engaged in a business that competes with the Business.
D. OS will not: (i) permit any liens, charges,
encumbrances or security interests of any kind or character)
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. EXHIBIT B is a true and correct copy of the
Agreement of Limited Partnership of HT, and shall not be
modified or amended during the term of this License Agreement
without the prior written consent of OS, which consent shall
not be unreasonably withheld.
B. 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.
C. HT and Holding Company agree not to pay, and Xxxxx
and Tipps agree not to accept, total combined compensation
from HT, Holding Company, the General Partner and Xxxxx Xxxxx
Trophy Suite, 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.
D. Holding Company, Xxxxx and Xxxxx agree not to modify
either of the Employment Agreements without the prior written
consent of OS, which consent may be granted or withheld in
OS's sole discretion.
E. HT, Xxxxx and Tipps agree that HT and Holding
Company shall not make any distributions or payments to their
respective partners or shareholders, of whatever kind or
character, including, but not limited to, distributions,
dividends, loans or redemptions; provided, however, that (i)
HT and Holding Company may make distributions to their
respective partners and shareholders for each taxable year in
an aggregate amount equal to the aggregate actual amount of
additional tax, if any, payable by the partners or
shareholders (as determined by competent tax advisors) for
such taxable year as a result of any taxable income passed
through to the partners or shareholders for such taxable
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year, or (2) the highest percentage individual marginal tax
rate, and (ii) HT may make distributions to Xxxxx Xxxxxxxx, a
limited partner of HT, pursuant to the Agreement of Limited
Partnership of HT.
F. Notwithstanding subsection E above, HT shall make
distributions of net cash flow (as determined in accordance
with generally accepted accounting principles) remaining
after any distributions under subsection E and after the
establishment of reasonable reserves for HT's business, to
its partners provided that simultaneously with all such
distributions HT shall pay to OS an amount equal to the
aggregate amount being distributed to the partners. 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,
the General Partner 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 is a limited
partnership duly organized and existing in good standing
under the laws of the State of Florida. The General Partner
and Holding Company are corporations duly organized and
existing in good standing under the laws of the State of
Florida. HT, the General Partner 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, the
General Partner or Holding Company. The execution and
delivery of this License Agreement and performance of their
respective obligations hereunder do not and will not violate
or constitute a breach of HT's Certificate of Limited
Partnership, Agreement of Limited Partnership, the Articles
of Incorporation or Bylaws of the General Partner or Holding
Company, or any other agreement to which HT, the General
Partner of Holding Company is a party, or any restriction of
law or contract to which HT, the General Partner 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 Paradise Golf, OS Sports and Outback Sports. HT
shall immediately notify OS of any change of name, identity
or organizational
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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.
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 Assets. HT shall keep accurate and
complete records respecting the 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 Assets.
At reasonable times, OS may examine the Assets and HT's
records pertaining to the Assets, wherever the 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 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 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 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 Assets to OS to
such location(s) within the Continental United States as OS
may designate in good operating order, repair, condition. HT
shall immediately notify OS in writing of any
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damage or loss of or to the Assets, whether arising out of
the alleged or apparent improper manufacture, functioning or
operation of the Assets or otherwise.
K. Ownership. The Licensed Assets shall at all times
remain the property of OS. OS may affix plates to the 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 shall not be unreasonably
withheld, and payment to OS of the OS Sale Proceeds as
specified in SECTION 5. 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 Tipps have made the selection of the 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 Assets and suitability of the 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 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
ASSETS FOR ANY PURPOSE, WHETHER OR NOT KNOWN OR DISCLOSED TO
HT, (ii) ANY DEFICIENCY OR DEFECT IN THE ASSETS, (iii) THE
USE OR PERFORMANCE OF THE 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 ASSETS. OS AGREES TO PROVIDE HT WITH
ALL WARRANTIES RUNNING TO THE 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
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this License Agreement imposed against OS, its successors and
assigns, HT or any item of Licensed Assets by any Federal,
state or local government 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 Assets, it is agreed as between OS and HT that
any proceeds resulting from a total or partial loss of any
item of 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
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
Assets is rendered unusable as a result of any physical
damage to, or loss or destruction of, the 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 Assets can be repaired. In
the event HT determines that such item of Assets can be
repaired, HT shall cause such item of Assets to be promptly
repaired at HT's expense. In the event HT determines that the
item of 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
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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.
(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
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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 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. 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. 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:
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(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.
(ii) 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.
(iii) 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 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.
(iv) Special form coverage for the full cost of
replacement of the Assets and all other property in
which HT may have an interest with no coinsurance
clause and a replacement cost clause attached.
(v) 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 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.
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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, General Partner,
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, the General Partner, Xxxxx
and Tipps 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, (ii) Holding Company is the sole shareholder of the
General Partner, owing all of the outstanding shares, and
(iii) the General Partner is the sole general partner of HT
and owns an eighty percent (80%) partnership interest in HT.
Accordingly, neither HT, Holding Company, the General
Partner, nor any immediate or remote successor to any part of
HT's interest in this License Agreement or the Business, nor
Xxxxx or Xxxxx, 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, Holding Company or the General
Partner, 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 of shares of Holding Company by Xxxxx
or Tipps 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, Holding Company and the General
Partner
(i) During the term of this License Agreement,
the General Partner shall remain the sole general
partner of HT and shall continue to own an eighty
percent (80)% partnership interest in HT. During the
term of this License Agreement, Holding Company
shall remain the sole shareholder of the General
Partner and Xxxxx and Xxxxx shall remain the sole
shareholders of Holding Company, in the percentages
now owned.
(ii) Copies of HT's Certificate of Limited
Partnership, Agreement of Limited Partnership,
Holding Company's and the General Partner's
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Articles of Incorporation, Bylaws, or other
governing documents, and any amendments thereto,
including the resolution of the Board of Directors
authorizing entry into this Agreement shall be
promptly furnished to OS.
(iii) HT, Holding Company and the General Partner
shall maintain stop transfer instructions against
the transfer on its records of any equity
securities. Each certificate representing an
ownership interest in HT, Holding Company or the
General Partner 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, Holding Company and the General Partner
shall maintain a current list of all owners of
record and all beneficial owners of any interest in
or securities of HT 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 interest 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, Holding Company or the General Partner 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, Holding Company or the General
Partner. Securities of HT, Holding Company or the General
Partner 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, Holding Company or General
Partner offering shall imply (by use of the Proprietary Marks
or otherwise) that OS is participating in an underwriting,
issuance, or offering of HT, Holding Company General Partner
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, the General Partner and the
other participants in the offering shall fully indemnify OS
in connection
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with the offering. For each proposed offering, HT, Holding
Company or the General Partner 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, Holding
Company or the General Partner 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.
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,
Holding Company or the General Partner 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 such a
petition is filed against and not opposed by HT, Holding
Company or the General Partner; or (c) if HT, the Holding
Company or the General Partner is adjudicated bankrupt or
insolvent; or (d) if a xxxx in equity or other proceeding for
the appointment of a receiver of HT, Holding Company or the
General Partner or other custodian for HT, Holding Company or
the General Partner's business or assets is filed and
consented to by HT, Holding Company or the General Partner or
if a receiver or other custodian (permanent or temporary) of
HT, Holding Company or the General Partner'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, Holding Company or the
General Partner; or (f) if a final judgment remains
unsatisfied or of record for thirty (30)days or longer
(unless supersedes bond is filed); or (g) if HT, Holding
Company or the General Partner is dissolved; or (h) if
execution is levied against HT, Holding Company or the
General Partner's business or property; or (i) if suit to
foreclose any lien or mortgage against any property of HT,
Holding Company or the General Partner is instituted against
HT, Holding Company or the General Partner and not dismissed
within thirty (30) days; or (j) if the real or personal
property of HT, Holding Company or the General Partner 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 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
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(iii) If HT, Holding Company or the General
Partner, Xxxxx or Xxxxx or any person hereafter
holding any ownership or voting interest in HT,
Holding Company or the General Partner purports to
transfer any rights or obligations under this
Agreement or any interest in HT, Holding Company or
the General Partner 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 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
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.
(ix) If there is an uncured default by Xxxxx
Agreement of even date herewith by and among OS
Trophy Suites, Ltd., Xxxxx Tipps Trophy Suite, Inc.,
Holding Company, Xxxxx and Xxxxx.
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
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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 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 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 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 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 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 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 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 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 Assets
for any purpose or
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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
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 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
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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.
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 Paradise Golf, Ltd., 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
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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.
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.
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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.
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 of their individual
ownership in HT as 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 Sections 10B and 10C, and the representations,
agreements and restrictions on transfer contained in Sections
14B, 14C and 14F.
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IN WITNESS WHEREOF, the parties hereto have duly executed,
sealed, and delivered this Agreement on the day and year first above written.
OS:
OS GOLF MARKETING, 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
HT:
XXXXX XXXXX PARADISE GOLF, LTD.,
a Florida limited partnership
By its General Partner:
XXXXX TIPPS TROPHY SUITE, INC.,
a Florida corporation: in its
individual capacity and as general
partner
Attest:
By:
----------------------------------- ---------------------------------
XXXXX X. XXXXX, XX., Secretary XXXXXXX X. XXXXX, President
HOLDING COMPANY:
XXXXX XXXXX HOLDING COMPANY,
a Florida corporation
Attest:
By:
----------------------------------- ---------------------------------
XXXXX X. XXXXX, XX., Secretary XXXXXXX X. XXXXX, President
XXXXX:
-------------------------------------
XXXXXXX X. XXXXX, Individually
TIPPS:
-------------------------------------
XXXXX X. XXXXX, XX., Individually
