PRO PLAYER STADIUM
EXECUTIVE SUITE LICENSE AGREEMENT
This License Agreement ("Agreement") is made and entered into by and
between XXXXXX STADIUM CORPORATION, a Florida corporation, with offices at 0000
X.X. 000xx Xxxxxx, Xxxxx, Xxxxxxx 00000, ("Owner") and Hydron Technologies, Inc.
whose address is 0000 Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, whose telephone
number is (000) 000-0000 and whose designee and contact for the purposes of this
Agreement is Xx. Xxxxxx Xxxxxx.
W I T N E S S E T H:
In consideration of the mutual covenants and agreements set forth in
this Agreement, Owner and Licensee do hereby agree as follows:
X. Xxxxx of License. Subject to the terms and conditions set forth in this
Agreement, Owner hereby grants Licensee the privilege and right to the
use and possession as described herein of the executive suite (the
"Suite") located in Pro Player Stadium, Dade County, Florida (the
"Stadium") and identified by number in Paragraph B.
B. Basic Terms. As used herein, the following terms shall apply to this
Agreement:
1. Suite. The Suite shall have the following
characteristics:
a. This License is for Suite Number 320A.
b. The Suite shall have the following number of
Total Seats: Twelve (12).
c. The Suite shall have a location in relation
to the playing field in the Stadium shown in
attached Exhibit A.
2. Ticket Allotment. The Ticket Allotment for the Suite
shall be Twelve (12) season tickets for Miami
Dolphins home games and Twelve (12) season tickets
for Florida Marlins homes games.
3. Suite Fee. (See Paragraph E).
a. Annual Suite Fee: 1997 - $90,000.00
1998 - $62,000.00
1999 - $76,000.00
2000 - $76,000.00
b. Initial Payment due: $90,000.00 due on or
before March 1, 1997. $62,000.00 due on or
before March 1, 1998. Thereafter, the Suite
Fee of $76,000.00 shall be due and payable
by Licensee not later than March 1st, each
year during the term of this Agreement.
4. Term. Four (4) years (See Paragraph F).
5. Security Deposit: $38,000.00 (See Paragraph G).
C. Furnishings, Decor and Alteration of Suite; Suite Services. Schedule 1
to this Agreement governs the manner in which the Suite shall be
furnished and equipped and sets forth services to be provided to the
Suite.
D. Possession and Use, Tickets and Parking. Schedule 2 to this Agreement
governs Licensee's right of use and access, rights with respect to
tickets and rights with respect to parking.
E. Payments. Section 3.1 of Schedule 3 of this Agreement governs the
payment of the annual Suite Fee.
F. Term. Section 3.2 of Schedule 3 to this Agreement governs the term of
this Agreement and Licensee's right of first refusal. This Agreement
shall become effective and binding when executed by both Licensee and
Owner.
G. Security Deposit. Section 3.3 of Schedule 3 of this Agreement governs
the payment of the Security Deposit.
H. Other Terms and Conditions. Schedule 4 to this Agreement sets forth
other Terms and Conditions applicable to this Agreement.
I. Special Stipulations. Schedule 5, if Schedule 5 is attached hereto,
contains any modifications of this Agreement or additional agreements
between the parties.
J. Entire Agreement. This Agreement, consisting of this basic Agreement
and Schedules 1, 2, 3, 4 and (if attached) Schedule 5, constitutes the
entire Agreement between the parties. This Agreement supersedes all
prior agreements or negotiations concerning the subject matter hereof.
No representation, promise or undertaking heretofore or concurrently
made, whether in advertising or marketing materials, discussions or
otherwise, shall be binding on either party unless specifically set
forth herein.
IN WITNESS WHEREOF, this Agreement shall become effective and binding
upon the parties when executed by both Licensee and Owner, as indicated below.
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XXXXXX STADIUM CORPORATION, a Florida
corporation
By:
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Name:
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Title:
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Date:
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LICENSEE*:
By:
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Name:
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Title:
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Date:
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By:
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Name:
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Title:
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Date:
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* Each person or persons listed above as Licensee must sign this Agreement.
If the Licensee is a corporation or a partnership, the title of the authorized
signatory must be included.
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EXHIBIT A
(Location of Suite)
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SCHEDULE 1
Furnishings, Decor and Alterations
of the Suite; Suite Services
1.1 During the term of this Agreement, Owner shall provide the following to
the Suite:
a. The following fixtures, furnishings
and equipment: upholstered chair seats
facing the playing field; carpeted floor;
wall coverings; built-in cabinetry
(including lockable liquor cabinet); sink
with running cold water; ice-maker;
counter-size refrigerator; color television;
lounge-seats and table; and such other
furnishings as Owner shall provide;
b. Color television, with standard all-channel
reception for the Miami area and closed
circuit broadcasts of any football games
played by the Miami Dolphins or any baseball
games played by the Florida Marlins as may
be available to Owner;
c. Heat, air conditioning, ventilation, running
cold water, and electricity during all games
and events for which the Stadium is open for
use by the general public;
d. Ordinary repair and maintenance of the
interior and exterior of the Suite made
necessary by normal wear and tear;
e. Dusting, sweeping and cleaning the Suite and
rubbish removal and disposal following each
Stadium game or event;
f. Telephone equipment and local area telephone
service at Owner's expenses;
g. Food and beverage services through the
caterer licensed by Owner at Licensee's
order and expense; and
h. Such other special services as Owner, in its
sole discretion, may offer at prevailing
rates and terms established from time to
time by Owner.
1.2 Licensee shall not make any additions or alterations in the interior
or exterior of the Suite or the fixtures, furnishings and equipment therein
without the prior written
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consent of Owner. However, Licensee may supply articles of appointment, such as
pictures, plants or insignia reasonable in size and in good taste, as determined
solely by Owner. Any such additions, or alterations permitted by Owner shall be
made at Licensee's expense and be made free of any liens or encumbrances, in a
good workmanlike manner, and in compliance with all applicable permits,
authorizations, building and zoning laws, ordinances, orders, rules, regulations
and requirements of all governmental authorities having appropriate
jurisdiction. Any fixtures or materials incorporated in or attached to the Suite
by Licensee shall become the property of Owner unless Licensee shall have
obtained the written approval of Owner to remove same prior to the expiration of
the term of this Agreement, and if so removed, Licensee shall, at its own
expense, repair and restore the Suite to its condition as of the commencement of
this Agreement.
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SCHEDULE 2
Possession and Use, Tickets and Parking
2.1 Possession and Use.
Licensee shall be entitled to the use and possession of the Suite
during the term of this Agreement, except as provided in Section 2.2 below, and
subject to the provisions of this Agreement. Licensee and Licensee's guests
shall be entitled to use the Suite only at times for which appropriate tickets
for admission to the Suite have been obtained and the Stadium is intended to be
open for use by the general public. Licensee and Licensee's guests shall be
bound by and shall observe the terms and conditions upon which tickets for
admission to the Stadium have been issued by the sponsor or promoter of such
event including, without limitation, the policy with respect to the cancellation
or postponement of the game or event.
Access to the Suites shall be from the club level of the Stadium
through a private door to the Suites. Access to the club level shall be shared
only by persons holding appropriate tickets for admission to the Suites and to
the club level seats. Each Suite shall be provided with a lock system.
This Agreement provides Licensee only with the right and privilege to
possess and use the Suite in the manner set forth herein, and except as pertains
to the special right and privilege to so possess and use the Suite, this
Agreement does not confer upon Licensee or Licensee's guests any greater or
lesser rights and privileges with respect to admission to the Stadium than
afforded to other holders of tickets for admission thereto.
2.2 Admission Tickets.
Licensee's rights with respect to admission tickets for events at the
Stadium, including Miami Dolphins' and Florida Marlins' pre-season and regular
season games and Special Events shall depend on whether Licensee is a Stadium
Licensee, Dolphins' Licensee or Marlins' Licensee, as hereinafter defined.
Licensees which are entitled to both Miami Dolphins' and Florida Marlins' season
tickets are sometimes hereinafter referred to as "Stadium, Licensees"; Licensees
which are entitled to Miami Dolphins' season tickets only are sometimes
hereinafter referred to as "Dolphins' Licensees"; and Licensees which are
entitled to Florida Marlins' season tickets only are sometimes hereinafter
referred to as "Marlins' Licensees". Stadium Licensees, Dolphins' Licensees and
Marlins' Licensees shall be entitled to the following respective benefits set
forth below:
a) Stadium Licensees. During the term of this Agreement,
Stadium Licensee shall receive the number of admission tickets to the Stadium
set forth in Paragraph B above for access to the Suite for each pre-season and
regular season football game played by the Miami Dolphins at the Stadium and
each regular season baseball game played
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by the Florida Marlins at the Stadium. Additionally, Owner shall make available
and Stadium Licensee shall be free to purchase (i) up to four (4) direct access
tickets for admission to the Suite for all pre-season and regular season Miami
Dolphins' games, and (ii) up to (4) direct access tickets for admission to the,
Suite for all regular season Florida Marlins' games.
Stadium Licensee shall also have the opportunity to purchase the
required admission tickets to the Stadium for access to the Suite for any other
games or events at the Stadium, including but not limited to post-season
football games of the Miami Dolphins, post-season baseball games of the Florida
Marlins, Major League Baseball All-Star Games, college bowl games, or concerts
(collectively, "Special Events"), for which Stadium Licensee desires to use the
Suite. Admission tickets for such other games or events shall be priced by the
sponsor or promoter of the game or event, but in no event shall the admission
price charged to Stadium Licensees and their guests exceed the admission price
charged for an admission ticket to the highest priced category of seats in the
Stadium. If after Owner offers tickets for purchase for Special Events at the
Stadium, Stadium Licensee determines not to purchase any of such tickets for the
Suite within the time specified, then, at the option of Owner, the use of the
Suite for such Special Event shall revert to Owner and Owner shall be free to
sell the use of the Suite for such Special Event to a third party. In the event
Stadium Licensee purchases some, but not all of the admission tickets to the
Suite for a Special Event, Owner may make available for purchase by others,
including executive suite licensees who have been relocated or otherwise denied
access to their respective suites, any unpurchased admission tickets for seats
in and access to the Suite.
In the event the Suite is deemed by the promoter of any event, concert
or game hosted in the Stadium to have obstructed or non-manifest seats, Stadium
Licensee shall not have the right to purchase admission tickets to the Suite.
However, Owner in its sole discretion, may offer alternative seating in the
Stadium to Stadium Licensee on terms and in locations to be determined by Owner.
Notwithstanding any other provision herein to the contrary, it is
understood and agreed that the availability of the upper tier of Suites (i.e.,
Suites No. 301 et seq., collectively, the "300 Level Suites") during any Super
Bowl Games held in the Stadium will be subject to the requirements of the
National Football League. Accordingly, Stadium Licensees of 300 Level Suites may
be required either to relinquish use and possession of their Suite for any Super
Bowl Game held in the Stadium or to share possession of their Suite with others
who have been required to do so. A Stadium Licensee of a 300 Level Suite shall
be entitled to purchase admission tickets to the Super Bowl Game for at least
fifty percent (50%) of the seats in their respective suites. Owner shall make
reasonable effort (but can make no guaranty) to place Stadium Licensees of 300
Level Suites and their guests in comparable suites as closely together as
circumstances will permit.
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Stadium Licensees of Suites located in the lower tier of Suites (i.e.,
Suites No. 201 et seq., collectively, the "200 Level Suites") shall be entitled
to exclusive use and possession of their respective suites during any Super Bowl
Game held in the Stadium and shall be entitled to purchase admission tickets for
each seat in and access to their respective suites; provided, however, that any
seat for which any admission ticket has not been purchased within the time
specified by Owner in advance of the Super Bowl Game may be made available by
Owner to others, including Stadium Licensees of 300 Level Suites who have been
required to relinquish possession of their Suite, as aforesaid, to accommodate
requirements of the National Football League.
b) Dolphins' Licensees. During the term of this Agreement,
Dolphins' Licensee shall receive the number of admission tickets to the Stadium
set forth in Paragraph B above for access to the Suite for each pre-season and
regular season football game played by the Miami Dolphins at the Stadium.
Additionally, Owner shall make available and Dolphins' Licensee shall be free to
purchase up to four (4) direct access tickets for admission to the Suite for all
pre-season and regular season Miami Dolphins games.
Dolphins' Licensee shall also have the opportunity to purchase the
required admission tickets to the Stadium for access to the Suite for any other
games or events at the Stadium, including but not limited to all post-season
football games of the Miami Dolphins, college bowl games, or concerts
(collectively, "Special Events"), but specifically excluding any and all
baseball related events, such as post-season baseball games of the Florida
Marlins and Major League Baseball All Star Games, for which Dolphins' Licensee
desires to use the Suite. Admission tickets for such other games or events shall
be priced by the sponsor or promoter of the game or event, but in no event shall
the admission price charged to Dolphins' Licensee and its guests exceed the
admission price charged for an admission ticket to the highest priced category
of seats in the Stadium. After Owner offers tickets for purchase for Special
Events at the Stadium, if Dolphins' Licensee shall determine not to purchase any
of such tickets for the Suite within the time specified, then, at the option of
Owner, the use of the Suite for such Special Event shall revert to Owner and
Owner shall be free to sell the use of the Suite to a third party. In the event
Dolphins' Licensee purchases some, but not all of the admission tickets to the
Suite for a Special Event, Owner may make available for purchase by others,
including executive suite licensees who have been relocated or otherwise denied
access to their respective suites, any unpurchased admission tickets for seats
in the Suite.
Dolphins' Licensee shall also be given the opportunity to purchase
tickets for any other games or events at the Stadium, subject to availability.
In the event the Suite is deemed by the promoter of any event, concert
or game hosted in the Stadium to have obstructed or non-manifest seats,
Dolphins' Licensee shall
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not have the right to purchase admission tickets to the Suite. However, Owner in
its discretion, may offer alternative seating in the Stadium to Dolphins'
Licensee on terms and in locations to be determined by Owner.
Notwithstanding any other provision herein to the contrary, it is
understood and agreed that the availability of the upper tier of Suites (i.e.,
Suites No. 301 et seq., collectively, the "300 Level Suites") during any Super
Bowl Games held in the Stadium will be subject to the requirements of the
National Football League. Accordingly, Dolphins' Licensees of 300 Level Suites
may be required either to relinquish use and possession of their Suite for any
Super Bowl Game held in the Stadium or to share possession of their Suite
with others who have been required to do so. A Dolphins' Licensee of a 300 Level
Suite shall be entitled to purchase admission tickets to the Super Bowl Game for
at least fifty percent (50%) of the seats in their respective suites. Owner
shall make reasonable effort (but can make no guaranty) to place Dolphins'
Licensees of 300 Level Suites and their guests in comparable suites as close
together as circumstances will permit.
Dolphins' Licensees of Suites located in the lower tier of Suites
(i.e., Suites No. 201 et seq., collectively, the "200 Level Suites") shall be
entitled to exclusive use and possession of their respective suites during any
Super Bowl Game held in the Stadium and shall be entitled to purchase admission
tickets for each seat in and access to their respective suites; provided,
however, that any seat for which any admission ticket has not been purchased
within the time specified by Owner in advance of the Super Bowl Game may be made
available by Owner to others, including Dolphins' Licensees of 300 Level Suites
who have been required to relinquish possession of their Suite, as aforesaid, to
accommodate requirements of the National Football League.
c) Marlins' Licensees. During the term of this Agreement,
Marlins' Licensee shall receive the number of admission tickets to the Stadium
set forth in Paragraph B above for access to the Suite for each regular season
baseball game played by the Florida Marlins at the Stadium. Additionally,
Marlins' Licensee shall also have the opportunity to purchase the required
admission tickets to the Stadium for access to the Suite for any of the
following games for which Marlins' Licensee desires to use the Suite: exhibition
baseball games played at the Stadium, post-season baseball games of the Florida
Marlins (including World Series games) played at the Stadium and the Major
League Baseball All-Star Game to be held at the Stadium in the year 2000.
Admission tickets for such games shall be priced by the sponsor or promoter of
the game, but in no event shall the admission price charged to Marlins' Licensee
and its guests exceed the admission price charged for an admission ticket to the
highest priced category of seats in the Stadium. After Owner offers tickets for
purchase for such games at the Stadium, if Marlins' Licensee shall determine not
to purchase any tickets for the Suite within the time specified, then, at the
option of Owner, the use of the Suite for such game shall revert to Owner and
Owner shall be free to sell the use of the Suite to a third party. In the event
Marlins' Licensee purchases some, but not all of the admission tickets to the
Suite for
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such games, Owner may make available for purchase by others, including executive
suite licensees who have been relocated or otherwise denied access to their
respective suites, any unpurchased admission tickets for seats in the Suite.
Marlins' Licensee shall also be given the opportunity to purchase
tickets for any other games or events at the Stadium, subject to availability.
In the event the Suite is deemed by the promoter of any such game
hosted in the Stadium to have obstructed or non-manifest seats, Marlins'
Licensee shall not have the right to purchase admission tickets to the Suite.
However, Owner in its sole discretion, may offer alternative seating in the
Stadium to Marlins' Licensee on terms and in locations to be determined by
Owner.
2.3 Special Parking.
Stadium, Dolphins' and Marlins' Licensees shall have the right to
obtain, at no additional cost, four (4) V.I.P. automobile parking spaces located
in designated Stadium site parking areas at the Stadium at the times during
which such Licensees are entitled to use the Suite. Stadium, Dolphins' and
Marlins' Licensees shall have the option to purchase additional parking passes,
depending upon availability, on a first-come, first served basis at the then
prevailing rates.
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SCHEDULE 3
Payments, Term and Security Deposit
3.1 Suite Fee.
The use and possession of the Suite shall be contingent upon payment to
Owner of the fee (the "Suite Fee") for each Contract Year at the times set forth
herein and in the amounts set forth in Paragraph B, plus any sales, use,
property or other governmental taxes due with respect to Licensee's use of the
Suite or imposed upon the payment of the Suite Fee (except for any federal,
state or local income, franchise or similar tax imposed upon Owner). The entire
Suite Fee for the initial year shall be payable on or before the date specified
in Paragraph B. Thereafter, the Suite Fee shall be due and payable by Licensee
not later than March 1st, each year during the term of this Agreement. The Suite
Fee includes an aggregate of several charges including the license of the Suite,
and a sum payable each year, as applicable, to the Miami Dolphins for Miami
Dolphins' season tickets and/or to the Florida Marlins for Florida Marlins'
season tickets provided to Licensee.
In the event that the Suite Fee is not paid at such times and in such
amounts as set forth above, then Licensee acknowledges and agrees that use and
possession of the Suite shall be subject to the Default provisions of Section
4.2 hereof. In the event that the Owner does not receive payment in full from
Licensee on or before the applicable payment due date set forth above the Owner
may consider said failure to pay a material breach, and may elect to charge
Licensee a late fee of one (1.0%) percent per month of the payment then due and
owing until it is paid in full and, without limitation of its other remedies,
Owner may terminate this Agreement upon such failure to pay in accordance with
Section 4.2.
The Suite Fee payable hereunder shall remain the same and shall not
increase until the commencement of the third year of any four year term
Agreement, the commencement of the fourth year of any seven year term Agreement
or the commencement of the sixth year of any ten year term Agreement (the period
when the Suite Fee remains unchanged shall be referred to as the "Freeze
Period"). After the Freeze Period, each year by February 1, the Suite Fee is
subject to adjustment as follows:
A. If in any year the prices charged for Executive Suite tickets
for the Florida Marlins' or the Miami Dolphins' home games are
increased from the prices charged for such tickets during the
preceding year, then the Suite Fee may be increased by the
aggregate amount of increased prices for that number of seats
in the Executive Suite. (For example, if all ticket prices
increased $1.00 per game ticket over the preceding year and
the Suite has 12 seats, the increase in the Suite Fee pursuant
to this paragraph would be
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calculated as follows: Dolphins Tickets (10 home games) $1 X
12 X 10 = $120 Suite Fee increase; Marlins tickets (assuming
81 home games) $1 X 12 X 81 = $972 Suite Fee increase.)
Notwithstanding the foregoing, the Suite Fee of a Dolphins'
Licensee shall not increase due to an increase in the prices
of Florida Marlins' tickets and the Suite Fee of a Marlins'
Licensee shall not increase due to an increase of prices for
Miami Dolphins' tickets.
B. The Suite Fee may also be increased each year by an
amount of up to five percent (5%) of the Suite Fee for the
preceding Contract Year based upon the percentage increase in
the Consumer Price Index for National Consumers (as published
by the Bureau of Labor Statistics of the U.S. Department of
Labor) over the preceding Contract year.
3.2 Term and Right of First Refusal.
The term of this Agreement shall commence upon the execution of this
Agreement by both Licensee and Owner, and shall expire on February 28th after
that number of years in the term following the calendar year in which the
Licensee has initially been issued tickets for the Suite for either the Florida
Marlins' or Miami Dolphins' games in the Stadium (whichever issuance is
earlier). As used in this Agreement, the term "Contract Year" shall mean the
twelve-month period commencing March 1, and expiring February 28, during the
term, except that in the year of execution, the Contract Year shall commence
with the date of execution and expire on February 28th. If this Agreement is a
renewal of an existing License Agreement between Owner and Licensee, then the
term and initial Contract Year hereunder shall commence upon the expiration of
the existing License Agreement.
If not in default in the performance of Licensee's obligations under
this Agreement, Licensee shall have the right of first refusal to renew this
license after the expiration of the term of this Agreement at such suite fee and
on such other terms and conditions as Owner may, in its discretion, determine.
The Licensee's right of first refusal shall be offered and exercised in
accordance with the following procedures. On or about the thirteenth month prior
to the expiration of the term of this Agreement, Owner shall submit to Licensee
a license agreement which sets forth the suite fee and other terms and
conditions offered by Owner for the license of the Suite. Licensee may exercise
its right of first refusal by executing and returning such license agreement to
Owner, together with any deposit or other payment which may be required
thereunder, within thirty (30) days after the agreement is sent to Licensee by
Owner. If Licensee shall not timely return such agreement to Owner together with
the required deposit or payment, then this right of first refusal shall
terminate and Owner shall be free to offer the Suite for license to a third
party.
3.3 Security Deposit.
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As security for the prompt and full payment of the Suite Fee and the
full and faithful performance by Licensee of each and every other obligation of
Licensee under this Agreement, Licensee has deposited with Owner the sum set
forth in Paragraph B as the "Security Deposit", the receipt of which is hereby
acknowledged by Owner. It is a condition of the Bank that is financing the
construction of the Stadium that Owner collect a security deposit and that such
deposit be held throughout the entire term. Accordingly, the Security
Deposit shall remain with Owner throughout the term of this Agreement and
Licensee may not apply such deposit to its obligations to pay annual Suite Fees.
The Security Deposit may be commingled by Owner with its independent funds, and
may be used by Owner for payment of any and all indebtedness incurred by Owner
in connection with the construction of the Stadium and the improvements located
thereon. No interest shall be paid to Licensee on the Security Deposit. If, at
any time during the term of this Agreement, any portion of the Suite Fee or any
other amount payable by Licensee to Owner pursuant to this Agreement is not
promptly paid when due, then Owner may, without waiving any other remedy which
it may have under this Agreement, appropriate and apply all or any portion of
the Security Deposit to the payment of such amount. Licensee shall, in such
event and upon written demand of Owner forthwith, remit to Owner an amount
sufficient to restore the Security Deposit to the original sum deposited, and
Licensee's failure to do so within five (5) business days after receipt of such
demand shall constitute a breach of this Agreement. If Licensee's right to the
use and possession of the Suite is terminated pursuant to Section 4.2 above,
then Owner may, at its option, appropriate and apply the Security Deposit, or so
much thereof as may be necessary, to compensate Owner for any loss or damage
sustained or suffered by Owner due to Licensee's breach. Otherwise, the Security
Deposit shall be returned to Licensee at the expiration of the term of this
Agreement, or any renewal term, less any costs and expenses incurred by Owner in
restoring the Suite to the condition required hereunder.
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SCHEDULE 4
Other Terms and Conditions
4.1 Covenants of Licensee.
Licensee covenants and agrees with Owner as follows:
A. While in possession of the Suite, Licensee shall keep and
maintain the Suite in good repair, order and condition, except for
normal wear and tear, and shall reimburse Owner for costs incurred by
Owner to repair any damage caused by Licensee or Licensee's guests to
the Suite or to the property of Owner therein. License shall not be
responsible for any damage caused by persons using the Suite other than
Licensee or Licensee's guests.
B. Licensee and Licensee's guests shall abide by and observe rules
and regulations established from time to time by Owner pertaining to
the use and occupancy of the Suite provided, however, that such rules
and regulations do not materially interfere with Licensee's use and
enjoyment of the Suite for the purposes intended.
C. Licensee and Licensee's guests shall at all times maintain
proper decorum while using the Suite and shall comply with all present
and future laws, ordinances, orders, rules and regulations of all
governmental authorities and will not suffer or permit to remain any
use or manner of use of the Suite in violation thereof.
D. Licensee shall not permit the preparation of food in the Suite
nor shall Licensee permit any food or beverages to be brought into the
Suite, except such food or beverage provided exclusively through the
Stadium caterer or otherwise purchased at the Stadium.
4.2 Default.
In the event Licensee fails to pay when due any amounts (including,
without limitation, the Suite Fee) to be paid by Licensee pursuant to this
Agreement or otherwise defaults in the performance or observation of its duties
and obligations under this Agreement, Owner may, at its option, terminate the
rights of Licensee hereunder by giving Licensee thirty (30) days prior written
notice. In the event that Licensee shall not have cured the default or breach
specified in said notice within said thirty (30) day period, then Owner may
terminate the right of Licensee to the use and possession of the Suite and all
other rights or privileges of Licensee under this Agreement and declare the
entire unpaid balance of the Suite Fee immediately due and payable, whereupon
Owner shall have no further obligation of any kind to Licensee and may enter the
Suite and remove all items of property of Licensee for storage at Licensee's
expense. Owner may, without waiving any other right or remedy to which it may be
entitled, immediately apply
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the Security Deposit to Licensee's obligations to pay the Suite Fee or other
amounts owed to Owner as a result of such default. Upon Owner's termination of
Licensee's license to use the Suite, Owner shall be free to relicense the Suite
to a third party without obligation to Licensee. Owner may relicense the right
to the use and possession of the Suite to another party; provided that, if there
are any other Suites in the Stadium available to be licensed, Owner may give
priority to licensing such other suites. Licensee shall remain obligated to make
all payments due or becoming due under this Agreement, but if Owner licenses the
right to the use and possession of the Suite to another party, then all amounts
received from such other party applicable to any remaining period of this
Agreement shall be applied first to the expense of relicensing and then to the
reduction of any obligations of Licensee to Owner under this Agreement. If the
consideration collected by Owner upon any such relicensing is not sufficient to
pay the full amount of all such obligations of Licensee, Licensee shall pay any
such deficiency upon demand.
The foregoing remedies of Owner shall not be to the exclusion of any
other right or remedy set forth herein or otherwise available to Owner in law or
in equity. Each of Owner and Licensee shall be responsible for all reasonable
attorney's fees and costs incurred by Owner or Licensee as may be the case in
the enforcement of this Agreement provided that litigation is actually commenced
and the party seeking such attorney's fees is the prevailing party. In the event
that such enforcement results in trial, the prevailing party shall be entitled
to recover all reasonable attorney's fees incurred as a result hereof, including
fees and costs of any appellate proceedings. Licensee and Owner hereby waive
trial by jury.
No waiver by Owner of any default or breach by Licensee of its obligations
hereunder shall be construed to be a waiver or release of any other or
subsequent default or breach by Licensee hereunder, and no failure or delay by
Owner in the exercise of any remedy provided for herein shall be construed to
constitute a forfeiture or waiver thereof or of any other right or remedy
available to Owner.
4.3 Strikes, Damage, Destruction, Etc.
In the event of any damage to or destruction of the Suite or the
Stadium which renders the Suite or the Stadium unusable, then, Owner shall
attempt to relocate Licensee to another executive suite at the Stadium. However,
if Owner is unable to relocate Licensee to another executive suite at the
Stadium, then, the Suite Fee payable hereunder shall be abated during the period
of time that the Suite is unusable. Any such abatement of the Suite Fee shall be
computed annually by dividing the number of games and other events for which the
Suite was unusable by Licensee by the total number of games and events in the
Stadium for which Licensee was entitled use during the applicable year including
the number of such scheduled games and events which were canceled as a result of
any such damage or destruction. Any such abatement shall be offset against the
next succeeding installment of the Suite Fee payable by Licensee. If in the
event of any damage to or destruction of the Suite or the Stadium, Owner elects
not to repair or restore
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same, this Agreement shall terminate as of the date of such damage or
destruction, and the entire amount of the abatement shall be promptly paid to
Licensee.
In the event of force majeure or any strike or other labor disturbance
which results in the cancellation of any Miami Dolphins' or Florida Marlins'
scheduled game(s) at the Stadium, or the cancellation of any other scheduled
event(s) at the Stadium, then, the Owner shall return to Licensee, as Licensee's
sole and exclusive remedy for such termination or cancellation, the aggregate
ticket price for admission to any such canceled game(s) or event(s) purchased by
Licensee for the Suite. In the event that the Florida Marlins shall relocate and
shall play its home games at a ball park other than the Stadium, then, the Owner
shall return to Licensee, as Licensee's sole and exclusive remedy for such
relocation, the aggregate ticket price paid by Licensee for admission to the
Suite for any Florida Marlins' games which are not played at the Stadium.
4.4 Access by Owner.
Owner, its officers, agents, employees, and representatives shall be
entitled to have access to the Suite on such occasions and to such extent as
Owner, shall in its sole discretion, deem necessary or appropriate for the
proper performance of the duties and obligations required or contemplated to be
performed by Owner or to be observed by Licensee under this Agreement for the
compliance with the rules and regulations governing use of the Stadium. For such
purposes, Owner shall retain duplicate keys to the Suite and the cabinets in the
Suite, and Licensee shall not change the locks or place any additional locks on,
or otherwise restrict or impede Owner's access to, the Suite or the cabinets
therein.
4.5 Owner's Right to Relocate.
Owner expressly reserves the right after the execution and during the
term of this Agreement, at its sole cost and expense, to remove the Licensee
from the Suite and relocate the Licensee to some other suite of Owner's choosing
of the same approximate size, if Owner determines that such relocation is
necessary in connection with any construction or renovation projects at the
Stadium. Licensee, by the execution of this Agreement, acknowledges the
foregoing right of Owner, and no rights granted in this Agreement to Licensee
shall be deemed to have been breached or interfered with by reason of Owner's
exercise of the right of relocation reserved in this Section 4.5. Licensee
agrees that Owner's exercise of its election to remove and relocate Licensee
shall not terminate this Agreement or release the Licensee, in whole or in part,
from Licensee's obligation to pay the Suite Fees and perform the covenants and
agreements under this Agreement for the full term of this Agreement.
4.6 Disclaimer of Liability.
Owner shall not be liable or responsible for any loss, damage, or
injury to any person or to any property of Licensee or Licensee's guests in or
upon the Suite or the
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Stadium, resulting from any cause whatsoever, including but not limited to theft
and vandalism, and including the sole or joint negligence of Owner, unless due
to the intentional misconduct of Owner or Owner's employees, agents or other
representatives.
In addition, Licensee agrees to indemnify and hold Owner harmless from
and against any liability, losses, claims, demands, costs and expenses including
attorney's fees and litigation expenses arising out of any personal injury or
property damage occurring in or upon the Suite or the Stadium due to or
resulting from the breach by Licensee or Licensee's guests of any of the terms
and conditions of this Agreement or of any applicable laws, rules, regulations
or orders of any governmental agency having appropriate jurisdiction over the
Stadium, the Suite or over any actions or negligence of Licensee, or from any
other cause whatsoever, including but not limited to the sole or joint
negligence of the Owner.
4.7 Third Party Beneficiaries.
Owner has heretofore arranged financing for the construction of the
Stadium and the Suite with a financial institution (the "Bank"). Licensee
acknowledges that Owner has pledged and may in the future pledge its interests
in this Agreement to the Bank and that the Bank will be relying on, and will be
entitled to rely on, the commitments made by Licensee in this Agreement and that
the Bank shall have the rights of a third party beneficiary with respect to this
Agreement.
4.8 Miscellaneous.
A. Upon the expiration of the term of this Agreement (or, if
applicable, upon the expiration of any renewal term pursuant to
Licensee's right of first refusal under Section 3.2 hereof) or upon the
earlier termination of this Agreement, Licensee shall surrender
possession of the Suite to Owner in the condition in which it was
originally delivered to Licensee, except for normal wear and tear, and
damage caused by casualty or force beyond the control of Licensee or
Licensee's guests.
B. Licensee shall not sell, assign, sublease, pledge or otherwise transfer
or encumber this Agreement, or any of Licensee's rights and obligations
hereunder without first offering to Owner the right to accept any such
transfer on its own behalf. If Owner does not accept Licensee's offer
to assign this Agreement to Owner within ten (10) days after Licensee
delivers written notice to Owner of its intent to so transfer this
Agreement, Licensee may transfer this Agreement upon obtaining the
prior written consent of Owner, which consent may not be unreasonably
withheld. Any attempted sale, assignment, sublease, pledge, transfer
or encumbrance in contravention of the foregoing shall be null, void
and of no force or effect, and shall be deemed to be a breach of this
License Agreement by Licensee. Any such breach by Licensee shall give
rise to a right by Owner to (i) prohibit admission to the Suite for any
purchaser, assignee, sublessee, pledgee or other transferee whom
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Owner has not approved or provided its consent, and (ii) terminate this
License Agreement and following such termination by Owner, Licensee
shall forfeit its right to the Security Deposit. Licensee shall
indemnify and hold harmless Owner and shall remain fully liable for any
property damage, personal injury or death resulting from or arising in
connection with any such sale, assignment, pledge, transfer or
encumbrance to which Owner has not consented.
C. It is understood that Owner has mortgaged, pledged, assigned or
otherwise encumbered the Suite, this Agreement and/or the Security
Deposit as security for financing improvements to be made to the suites
or other facilities operated by Owner in the Stadium or for other
purposes of the Owner, and that this Agreement and the rights and
interests of Licensee hereunder shall be subordinate thereto; provided
that any such mortgagee, pledgee, assignee or the holder of any such
lien shall agree in writing to recognize this Agreement and the rights
and interests of Licensee hereunder in the event of foreclosure or
enforcement of said lien if Licensee is not then in default in the
performance of Licensee's obligations under this Agreement.
D. All notices, demands and other communications between the
parties required or appropriate hereunder shall be in writing and
deemed given if mailed, postage prepaid, to the address set forth above
for the Owner and to the address set forth in Paragraph B for the
Licensee, or to such other address as may be designated by either
party, from time to time, in writing.
E. This Agreement shall be construed and enforced in accordance with the
laws of the State of Florida.
F. This Agreement and all the terms and provisions hereof shall
inure to the benefit of and be binding upon the parties hereto, and
their respective successors and permitted assigns. If Licensee is a
natural person, this Agreement shall automatically terminate upon the
death of Licensee. No amendment or modification to this Agreement shall
be effective unless the same is in writing and signed by both Owner and
Licensee and is consented to by the Bank.
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SCHEDULE 5
Special Stipulation
Notwithstanding Paragraph B4. of this Agreement, Licensee shall have
the right to terminate this Agreement, subject to the provisions contained in
this Schedule 5.
Licensee's right to terminate shall be exercisable for a period
commencing December 1, 1997 and ending on the final day of March, 1998 (the
"Termination Period"). The termination right may be exercised by, and shall
become effective only upon, Licensee's delivery to Owner of written notice of
its intention to terminate during the Termination Period. Upon the exercise of
such termination, all of Licensee's rights under this Agreement (except for any
rights with respect to the Security Deposit), including but not limited to
Licensee's right of refusal under Schedule 3.2, shall automatically terminate.
No such termination shall affect Licensee's obligation arising under the
Agreement with respect to the 1st year of the term or which otherwise extend
beyond the term of this Agreement.
Upon the expiration of the Termination Period without the effective
exercise of its termination rights, Licensee shall have no further termination
rights under this
Agreement.
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