EXHIBIT 10.2
July 16, 1998 PRO PLAYER STADIUM
EXECUTIVE SUITE LICENSE AGREEMENT
This License Agreement ("Agreement") is made and entered into by and
between South Florida Stadium Corporation d/b/a Pro Player Stadium, a Florida
corporation, with offices at 2269 N.W. 199th Street, Miami, Florida 33056,
("Owner") and EXTENDED STAY AMERICA, INC. ("Licensee") whose address is 450 E.
Las Olas Blvd., Suite 1100, Fort Lauderdale, FL 33301, whose telephone number is
(954) 713-1600 and whose designee and contact for the purposes of this Agreement
is George D. Johnson, Jr., President and CEO.
WITNESSETH:
In consideration of the mutual covenants and agreements set forth in this
Agreement, Owner and Licensee do hereby agree as follows:
A. Grant 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 203A.
b. The Suite shall have the following number of Total Seats:
Sixteen (16).
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
Sixteen (16) season tickets for Miami Dolphins home games and
Zero (0) season tickets for Florida Marlins home games.
3. Suite Fee. (See Paragraph E).
a. Annual Suite Fee: Eighty three thousand dollars ($83,000).
b. Initial Payment due: Upon receipt of signed agreement.
4. Term. Three (3) years (See Paragraph F).
5. Security Deposit: Waived (See Paragraph G). No additional
Security Deposit is required if this Agreement is a renewal of an
existing License Agreement.
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.
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IN WITNESS WHEREOF, this Agreement shall become effective and binding upon
the parties when executed by both Licensee and Owner, as indicated below.
SOUTH FLORIDA STADIUM CORPORATION
D/B/A PRO PLAYER STADIUM, 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: /s/ George D. Johnson Jr.
---------------------------------
Name: George D. Johnson Jr.
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Title: President and CEO
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Date:
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By:
---------------------------------
Name:
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Title:
---------------------------
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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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 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
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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 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
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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.
Stadium Licensees of Suites located in the lower tier of Suites (i.e.,
Suite 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
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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 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 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' Licensee 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 reported 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
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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 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.
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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 calculated as follows:
Dolphins Tickets (10 home games) S1 X 12 X 10 = S120 Suite Fee
increase: Marlins tickets (assuming 81 home games) S1 X 12 X 81 = S972
Suite Fee increase.) Notwithstanding the foregoing, the Suite Fee of a
Dolphins' Licensee shall not increase due to an increase in the prices
of
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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 28, 2001,
unless earlier terminated, pursuant to this Section 3.2. 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 this existing
License Agreement.
Either Owner or Licensee may terminate his Agreement by delivering written
notice of termination to the other between February 1, 1999 and March 1, 1999
and such termination shall become effective upon one party's receipt of the
other party's notice of termination. Upon such termination, this Agreement shall
forthwith become void and of no further force and effect and the parties hereto
shall be released from all future obligations or performance required under this
Agreement, provided however that the party exercising the right to terminate
shall be in good standing of its performance obligations under the Agreement.
After any such termination under this Section 3.2, Owner shall be free to
relicense the Suite to a third party without obligation to Licensee.
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.
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3.3 Security Deposit.
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 beverage 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 twenty (20) days prior written notice.
In the event that Licensee shall not have cured the default or breach specified
in said notice within said twenty (20) 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 the Security Deposit to Licensee's obligations to pay the
Suite Fee or other amounts owned to Owner as a result of such default. Upon
Owner's termination of Licensee's license to use the Suite, Owner
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shall be free to relicense the Suite 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. Licensee shall be responsible for all reasonable attorney's fees and
costs incurred by Owner in the enforcement of this Agreement whether or not
litigation is actually commenced. 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 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
events(s) at the Stadium, then, the Owner
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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.
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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 Stadium, resulting from any cause whatsoever, including but not
limited to theft and vandalism, and including the sole of 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
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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,
subleasee, pledgee or other transferee whom 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
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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 of 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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