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Execution Copy
ASSURANCE AGREEMENT
This Assurance Agreement (this "Agreement") is made as of the _ day of April, 2009,
by and among Miami -Dade County, a political subdivision of the State of Florida (the
"Count "), the City of Miami, a municipal corporation of the State of Florida (the "City'), and
Florida Marlins, L.P., a Delaware limited partnership (the "Team").
Recitals
A. Contemporaneously with the execution of this Agreement, the County, the City
and Marlins Stadium Developer, LLC, a Delaware limited liability company (the "Stadium
Developer"), are entering into a Construction Administration Agreement (the "Construction
Agreement") providing for the planning, design and construction of the Baseball Stadium by the
Stadium Developer. (Capitalized terms used but not defined in this Agreement have the
meanings set forth in the Construction Agreement.)
B. The County and the City have required, as a material inducement and condition
precedent to entering into the Construction Agreement, that the Team execute and deliver this
Agreement to unconditionally and irrevocably guaranty the Stadium Developer's obligations
(whether of payment or performance) under and in accordance with the Construction Agreement.
C. The Team has a financial interest in the Stadium Developer and an interest in the
construction of the Baseball Stadium pursuant to the Construction Agreement, and has agreed to
execute and deliver this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Guaranty. The Team, as primary obligor and not merely as surety, absolutely,
unconditionally and irrevocably guarantees to the County and the City the full and prompt
payment and performance of all obligations of the Stadium Developer under the terms and
conditions of the Construction Agreement, whether liquidated or unliquidated, fixed or
contingent, now existing or hereafter arising, of any kind or nature whatsoever, including, but not
limited to, the following:
(a) to cause the Baseball Stadium Project to be completed in accordance with
the Construction Agreement;
(b) the payment and discharge of all Stadium Project Costs payable by the
Stadium Developer under the Construction Agreement, including (i) the Stadium Developer's
obligation to provide the funding required by Section 6.4 of the Construction Agreement and (ii)
the Stadium Developer's obligation to pay for any Stadium Cost Overruns (other than any
Governmentally Caused Cost Overruns) and Public Infrastructure Cost Overruns (to the extent
the Stadium Developer is responsible for such Public Infrastructure Cost Overruns as set forth in
Section 6.5 of the Construction Agreement) in accordance with Section 6.5 of the Construction
Agreement;
(c) the maintenance of a bank line of credit or other similar financial
arrangement that may be used only to fund Stadium Cost Overruns as provided in Section 6.5 of
the Construction Agreement, and the obligations of the Stadium Developer with respect to the
payment and performance bonds under the Construction Agreement; and
(d) the indemnity obligations of the Stadium Developer set forth in Article
XII of the Construction Agreement.
All amounts due, debts, liabilities, payment obligations and performance obligations described in
this Section 1 are referred to herein as the "Obligations".
2. Remedies of the County and the City.
. (a) In the event of any default by the Stadium Developer under the
Construction Agreement of any of its Obligations, after the expiration of any cure period
applicable thereto, the Team agrees, upon the written request of either the County or the City to
the Team, to pay and perform the Obligations in respect of such default, including any indemnity
obligations of the Stadium Developer under the Construction Agreement arising from such
default. If the Team fails (i) to pay the Obligations or (ii) fails to commence and pursue
diligently the performance of any other Obligations within ten (10) Business Days after its
receipt of such written notice from the County or the City demanding the payment and/or
performance of such Obligations by the Team, then, either before or after pursuing any other
remedy of the County or the City against the Team or the Stadium Developer, and regardless of
whether the County or the City shall ever pursue any such other remedy, the County and the City
shall have the right to exercise against the Team any of the remedies available to the County and
the City in respect of such default under applicable law, including the rights of a secured party as
provided in Section 3. If the default by the Stadium Developer involves a matter that would be
subject to arbitration under Article XIV of the Construction Agreement, any proceeding against
the Team hereunder with respect to that matter shall be conducted in accordance with the same
arbitration procedures, but without requiring a duplication of any such arbitration proceeding (it
being acknowledged that the Stadium Developer will likely be joined in any such proceeding
against the Team).
(b) The payment portion of this Agreement, being a guaranty of payment and
not collection, notwithstanding anything to the contrary herein contained, in any action to
enforce any of the Obligations, the County or the City may proceed against the Team, with or
without: (i) joining the Stadium Developer in any such action; (ii) commencing any action
against or obtaining any judgment against the Stadium Developer; or (iii) commencing any
proceeding to enforce the Construction Agreement or any other Stadium Agreement.
3. Subordinate Lien on Franchise. To secure the Team's guarantee of the Stadium
Developer's funding obligation under Section 6.4 of the Construction Agreement (the "Team
Funding_ Obli ag tion"), the Team shall grant to the County and the City, no later than sixty (60)
days after the date of this Agreement, a perfected, subordinated security interest in the Franchise
(the "Subordinate Lien") on the terms set forth in this Section 3. The granting and terms of the
Subordinate Lien shall be subject to each and all of the following conditions:
(a) The Subordinate Lien shall become effective upon execution and delivery
of the subordination agreement referred to in Section 3(f) below.
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(b) The Subordinate Lien may be foreclosed upon by the County and City,
and the County and the City shall be entitled to exercise the rights granted to a secured party
upon default under the UCC and other applicable laws, only in the event of a breach by the Team
of the Team Funding Obligation, after the expiration of any cure period applicable thereto, and
only with the prior written consent of the holders of the Senior Secured Indebtedness (as defined
below). The Subordinate Lien secures only the performance of the Team Funding Obligation.
(c) The Subordinate Lien shall be fully subordinate as to payment and lien
priority to any then -current or future lien given by the Team to secure payment and performance
of its obligations, without limit as to amount, including guarantee obligations, in respect of any
then existing or future indebtedness (including capitalized leases and other obligations classified
as liabilities in accordance with generally accepted accounting principles) of the Team or any
person or entity that is affiliated with the Team or has invested in the Team or in which the Team
is an investor, provided that the principal purpose of the indebtedness in respect of which such
lien is granted relates to the financing or operation of the Team or the development of the
Baseball Stadium or Baseball Stadium Site ("Senior Secured Indebtedness"). No proceeds of the
Subordinate Lien may be paid to the County or City unless and until all Senior Secured
Indebtedness is paid in full. No consent of the County or City is required for the incurrence of
Senior Secured Indebtedness.
(d) The County and City hereby disclaim any right that might otherwise
implicitly or explicitly arise under or in respect of the Subordinate Lien to review, approve or
consent to (i) the loan, security and other documentation for Senior Secured Indebtedness or any
guarantee thereof and (ii) any transfer or the making of a pledge of the Franchise, the Team or an
interest in either (or any financing relating thereto) that does not involve a violation of Section
13(a) of this Agreement.
(e) If then customarily required by Major League Baseball in connection with
the grant of liens in Major League Baseball franchises generally, in connection with the grant of
the lien as provided in clause (a) above, the County, the City and Major League Baseball will
enter into a standard form Major League Baseball lien consent agreement on customary terms
generally applied by Major League Baseball to third party holders of liens on Major League
Baseball franchises and in which, among other things (A) Major League Baseball will confirm
its approval of this Agreement and consent to the terms of the Subordinate Lien, and (B) the
County and City will agree, for the benefit of Major League Baseball, to the provisions set forth
in Exhibit A.
(f) The County, the City and the Team shall cooperate reasonably and in good
faith in the negotiation and execution of any subordination or other documents and instruments
as may be necessary to effectuate the intentions of this Section 3, provided that they do not
increase the obligations of the City or County under the Stadium Agreements. The City and
County each shall have the right to elect to pursue their respective legal remedies directly against
the Team or execute on its security interest or both, subject to the terms of this agreement.
Without limiting the generality of the foregoing (i) the County and the City agree, promptly upon
written request by the Team, to enter into subordination or other agreements with the holders of
Senior Secured Indebtedness, in form and substance reasonably satisfactory to the Team and
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such holders, to acknowledge and effectuate the subordination and other limitations on the
Subordinate Lien agreed by the County and City herein, provided that they do not increase the
obligations of the City or County under the Stadium Agreements; and (ii) the Team agrees,
promptly upon written request by the Board of County Commissioners (the "Board") and/or the
City Commission of the City of Miami (the "Commission"), to deliver to the Board and the
Commission, at the Team's sole expense, such financing statements and other documents as the
Board and/or the Commission may reasonably request, in form and substance reasonably
satisfactory to the Board, to further evidence and perfect the Subordinate Lien. The Team shall
submit a draft of such subordination or other agreements to the County and City no later than
thirty (30) days after the date of this Agreement.
(g) The Subordinate Lien shall automatically terminate and be void upon (i) a
termination of the Construction Agreement in accordance with its terms; or (ii) the closing by the
Team and/or its Affiliates of a financing transaction that provides funds for the Stadium
Developer's funding obligation under Section 6.4 of the Construction Agreement, provided that
the Stadium Developer has closed on such financing and the lender is contractually obligated to
provide such funds to the Stadium Developer for the Baseball Stadium Project, provided that at
the time of such closing those funds (and earnings thereon) and other funds to be provided by the
Government Parties and the Stadium Developer or others on behalf of the Stadium Developer are
reasonably sufficient to pay the remaining Stadium Project Costs, including Stadium Cost
Overruns and Public Infrastructure Cost Overruns (to the extent the Stadium Developer is
responsible for such Public Infrastructure Cost Overruns as set forth in Section 6.5 of the
Construction Agreement) known or reasonably likely to be incurred as of the time of such
closing, provided further if all such funds are not reasonably sufficient at the time of such closing
but are deemed reasonably sufficient at a later date, the Subordinate Lien shall automatically
terminate on such later date. Upon such termination, the Government Parties shall execute and
deliver to the Team such documents as the Team may reasonably request, in form and substance
reasonably satisfactory to the City, the County and the Team, to evidence the termination of the
Subordinate Lien.
4. Extension and Reinstatement of Guaranty. This Agreement shall continue to
be effective, or be reinstated, as the case may be, if at any time after its termination any payment
and/or performance of any of the Obligations is or is sought to be rescinded or must otherwise be
restored or returned by the County or the City upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Stadium Developer or the Team or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the
Stadium Developer or the Team, all as though such performance had not been accomplished.
5. No Discharse. The Team agrees that the Obligations, covenants and agreements
of the Team under this Agreement shall not be affected or impaired by any act of the County, the
City or any event or condition except full payment and performance of the Obligations. The
Team agrees that, without full payment and performance of the Obligations, the liability of the
Team hereunder shall not be discharged for any reason whatsoever. The Team intends that it
shall remain liable hereunder as a principal until all Obligations shall have been fulfilled,
notwithstanding any fact, act, event or occurrence which might otherwise operate as a legal or
equitable discharge of a surety or guarantor. Notwithstanding the foregoing or any other
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provision of this Agreement, the Team shall only be required to pay and perform the Obligations
and its covenants and agreements under this Agreement to the extent the Stadium Developer is
required to pay and perform such obligations under the Construction Agreement.
6. Waiver. The Team expressly waives: (a) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever under the Construction Agreement, and filing
of claims with a court in the event of receivership or bankruptcy of Stadium Developer, any
surety, co -obligor, indemnitor, other guarantor, pledgor or any other person liable in any respect,
either directly or indirectly, under the Construction Agreement (each, an "Obligor"); (b) the right
to trial by jury in any action to enforce this Agreement; and (c) any failure by the County or City
to inform Team of any facts the County or City may now or hereafter know about the Stadium
Developer or the transactions contemplated by the Construction Agreement, it being understood
and agreed that the County or City has no duty to so inform and that Team is fully responsible
for being and remaining informed by the Stadium Developer of all circumstances bearing on the
existence, creation or risk of nonperformance of the Obligations, provided that this provision
shall not limit any obligation or duty the County or City may have to the Stadium Developer
under the Construction Agreement. No modification or waiver of any of the provisions of this
Agreement will be binding upon any party except as expressly set forth in a writing duly signed
and delivered on behalf of that party and, with respect to any waivers granted by the County or
City, such waiver is approved by the Board of County Commissioners or the City Commission,
respectively.
7. Governing Law, Interpretation. This Agreement has been negotiated, executed
and delivered in Florida, and shall be governed by the laws of the State of Florida without
reference to the conflicts of law principles of that State. The headings of sections and paragraphs
in this Agreement are for convenience only and shall not be construed in any way to limit or
define the content, scope or intent of the provisions hereof. As used in this Agreement, the
singular shall include the plural, and masculine, feminine and neuter pronouns shall be fully
interchangeable where the context so requires. If any provision of this Agreement, or any
paragraph, sentence, clause, phrase or word, or the application thereof, in any circumstances, is
adjudicated by a court of competent jurisdiction to be invalid, the validity of the remainder of
this Agreement shall be construed as if such invalid part were never included herein. Time is of
the essence of this Agreement. All payments to be made hereunder shall be made in currency
and coin of the United States of America which is legal tender for public and private debts at the
time of payment.
8. Termination. Subject to Section 4, this Agreement and the Obligations shall
terminate upon the date the Obligations have been fully paid and performed.
9. Actions by the County and City. The County and the City are hereby
authorized, without notice or demand and without affecting the liability of the Team hereunder,
subject to approval by the Board of County Commissioners, in the case of the County, or the
City Commission, in the case of the City,} from time to time: (a) to renew or extend the time for
payment of all or any part of the Obligations (subject to the terms of the Construction
Agreement); (b) to accept partial payments and/or performance on all or any part of the
Obligations; (c) release any other Obligor; and (d) to settle, release, compromise, collect or
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otherwise liquidate all or any part of the Obligations, and any of the foregoing may be done in
any manner in accordance with the Construction Agreement, without affecting or impairing all or
any part of the obligations of the Team hereunder.
10. Additional Representations and Warranties. In addition to and independent of
any other obligation or liability under this Agreement, the Team hereby represents and warrants
to the County and the City as follows:
(a) the Team has an economic interest in the Stadium Developer as a member
and an interest in the success of the Baseball Stadium Project;
(b) the execution, delivery and performance by the Team of this Agreement
have been duly authorized by all necessary limited partnership action, and do not and will not
contravene or conflict with (i) the limited partnership agreement of the Team, (ii) any provision
of Baseball Rules and Regulations, (iii) any law, order, rule, regulation, writ, injunction or decree
now in effect of any government, governmental instrumentality or court having jurisdiction over
the Team, or (iv) any loan agreement or other contractual restriction binding on or affecting the
Team or any of its property or assets, except where any of the foregoing could not reasonably be
expected to have a material adverse effect on the Team;
(c) this Agreement is a legal, valid and binding obligation of the Team
enforceable against the Team in accordance with its terms;
(d) except as disclosed in writing to the County or the City, there is no action,
proceeding or investigation pending or, to the knowledge of the Team, threatened or affecting the
Team, which may adversely affect the ability of the Team to fulfill and perform the Obligations
and its other undertakings under this Agreement. The Team is not in default with respect to any
judgment, order, injunction or decree of any Governmental Authority which is in any respect
material to the transactions contemplated in and by this Agreement;
(e) the Team is a limited partnership duly formed, validly existing, and in
good standing under the laws of the State of Delaware;
(f) the Team is a member in good standing of Major League Baseball and is
in compliance in all material respects with all applicable Baseball Rules and Regulations which
are relevant to the transactions contemplated herein:
(g) the Team has full power and legal right to execute and deliver this
Agreement and to perform and observe the provisions of this Agreement; and
(h) the Team is in compliance with MLB's Debt Service Rule, pursuant to
which generally an MLB club's total outstanding debt may not exceed ten times its average
earnings before interest, taxes, depreciation and amortization (EBITDA) in the preceding three
years.
11. Covenant Regarding Compliance with Debt Service Rule. The Team
covenants that, until Substantial Completion or the termination of the Construction Agreement, it
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shall remain in compliance with MLB's Debt Service Rule and, upon the reasonable request of
the County, shall provide the County with a certificate from an officer of the Team confirming
such compliance.
12. Indemnity. In addition to its guarantee of the Stadium Developer's
indemnification obligations under the Construction Agreement, the Team shall indemnify and
hold harmless each Government Party and its officers, employees, attorneys, agents and
instrumentalities (collectively, "Government Indemnitees") from any and all liability, losses or
damages, including reasonable attorneys' fees and costs of defense, which the Government
Indemnitees may incur as a result of claims, demands, suits, causes of actions or proceedings of
any kind or nature arising out of or resulting from the breach of Sections 1, 3, 10 or 11 of this
Agreement by the Team. Any such indemnification shall be provided in accordance with the
indemnification procedures set forth in Section 13.3 of the Operating Agreement.
13. Successors and Assipans; Third Party Beneficiaries.
(a) This Agreement shall bind the Team and its assigns and successors;
provided that the Team shall not be entitled to transfer or assign its obligations hereunder
without the prior written consent of the Government Parties, which consent shall be in their sole
discretion and may be conditioned upon the Team's remaining liable under this Agreement if the
Government Parties are not reasonably satisfied with the creditworthiness of the transferee;
provided, further, however, that the Team may, without the prior written consent of the
Government Parties, transfer and assign its obligations hereunder to any Person (or Affiliate of
any Person) that acquires the Team's Major League Baseball franchise with the required
approval of Major League Baseball, provided that (i) such transferee or its Affiliate assumes
unconditionally, in a writing reasonably satisfactory to the Government Parties, all of the
obligations of the Team under this Agreement, and (ii) such transferee or its Affiliates assume all
of the other obligations of the Team and its Affiliates under the other Stadium Agreements. The
Team shall provide the City and County written evidence of Major League Baseball's approval
of the transferee.
(b) This Agreement shall bind the Government Parties and their respective
assigns and successors; provided the neither Government Party may transfer or assign this
Agreement or any of their respective rights and obligations hereunder without the prior written
consent of the Team, which consent shall be in the Team's sole discretion.
(c) Nothing in this Agreement, express or implied, is intended to (i) confer
upon any Person other than the parties and their permitted successors and assigns any rights or
remedies under or by reason of this Agreement as a third -party beneficiary or otherwise; or (ii)
authorize anyone not a party to this Agreement to maintain an action pursuant to or based upon
this Agreement.
14. Notices. Any notice, consent or other communication under this Agreement shall
be in writing and shall be considered given when delivered in person or sent by facsimile or
electronic mail (provided that any notice sent by facsimile or electronic mail shall
simultaneously be sent personal delivery, overnight courier or certified mail as provided herein),
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one (1) Business Day after being sent by reputable overnight carrier, or three (3) Business Days
after being mailed by certified mail, return receipt requested, to the parties at the addresses set
forth below (or at such other address as a party may specify by notice given pursuant to this
Section to the other parties):
To the County: County Manager
111 NW 1st Street, Suite 2900
Miami, Florida 33128
Attention: George M. Burgess
with a copy to: County Attorney
111 NW 1St Street, Suite 2810
Miami, Florida 33128
Attention: Robert A. Cuevas, Jr. and Geri Keenan
To the City: City Manager
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
Attention: Pedro G. Hernandez
with a copy to: City Attorney
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
Attention: Julie O. Bru and Olga Ramirez-Seijas
To the Team: 2267 Dan Marino Boulevard
Miami, Florida 33056
Attention: David Samson and Derek Jackson
with a copy to: Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Attention: Wayne D. Katz, Esq.
15. Agent for Service of Process. The Team hereby submits to personal jurisdiction
in the State of Florida for the enforcement of this Agreement and waives any and all personal
rights to object to such jurisdiction for the purposes of litigation to enforce this Agreement. In
the event such litigation is commenced at any time when the Team is not permanently domiciled
in the State of Florida, the Team agrees that service of process may be made and personal
jurisdiction over the Team obtained, by service of a copy of the summons, complaint and other
pleadings required to commence such litigation upon the appointed agent for service of process
in the State of Florida, which agent the Team hereby designates to be:
CT Corporation System
1200 South Pine Island Road
Plantation, Florida 33324
The Team agrees that this appointment of an agent for service of process is made for the mutual
benefit of the Team and the County and may not be revoked without the County's consent. The
Team hereby agrees and consents that any such service of process upon such agent shall be taken
and held to be valid personal service upon the Team if the Team shall not be then physically
present, residing within, or doing business within the State of Florida, and that any such service
of process shall be of the same force and validity as if service were made upon the Team when
physically present, residing within, or doing business in the State of Florida. The Team waives
all claim of error by reason of any such service properly given. The Team hereby agrees that an
action, suit or proceeding to enforce this Agreement may be brought only in the Eleventh
Judicial Circuit Court of Florida for Miami -Dade County or the United States District Court for
the Southern District of Florida, and hereby waives any objection which the Team may have to
the laying of the venue of any such action, suit or proceeding in any such Court.
16. Nonrecourse Liability of Team Personnel. Notwithstanding and prevailing
over any contrary provision or implication in this Agreement and except for their criminal acts
with respect to this Agreement (i.e., acts which would constitute crimes were they prosecuted for
and convicted of such acts), the officers, directors, partners, shareholders, members, employees
and agents of the Team and their Affiliates (the "Team Personnel") shall not in any way be liable
under or with respect to this Agreement; no deficiency or other monetary or personal judgment
of any kind shall be sought or entered against any of the Team Personnel with respect to liability
under or with respect to this Agreement; no judgment with respect to liability under or with
respect to this Agreement shall give rise to any right of execution or levy against the assets of
any of the Team Personnel; and the liability of the Team under this Agreement shall be limited to
the assets of the Team.
17. Nonrecourse Liability of County Personnel. Notwithstanding and prevailing
over any contrary provision or implication in this Agreement, no member, elected or appointed
official, officer, employee, agent, independent contractor or consultant of the County shall be
liable to the Team, or any successor in interest to the Team, in the event of any default or breach
by the County for any amount which may become due to the Team or any successor in interest to
the Team under this Agreement, or on any other obligation under the terms of this Agreement,
except for their criminal acts with respect to this Agreement (i.e., acts which would constitute
crimes were they prosecuted for and convicted of such acts).
18. Nonrecourse Liability of City Personnel. Notwithstanding and prevailing over
any contrary provision or implication in this Agreement, no member, elected or appointed
official, officer, employee, agent, independent contractor or consultant of the City shall be liable
to the Team, or any successor in interest to the Team, in the event of any default or breach by the
City for any amount which may become due to the Team or any successor in interest to the Team
under this Agreement, or on any other obligation under the terms of this Agreement, except for
their criminal acts with respect to this Guaranty (i.e., acts which would constitute crimes were
they prosecuted for and convicted of such acts).
19. Merger Clause. This Agreement, including any schedules and exhibits to this
Agreement, and the other Stadium Agreements contain the sole and entire agreement among the
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Parties and their Affiliates with respect to their subject matter, are fully integrated, and supersede
all prior written or oral agreements among them relating to that subject matter, including the
BSA. Except as specifically set forth in this Agreement and the other Stadium Agreements,
there shall be no warranties, representations or other agreements among the Parties or their
Affiliates in connection with the subject matter hereof or thereof.
20. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under Applicable Law, but if any
provision of this Agreement is held to be prohibited by or invalid under Applicable Law, the
Parties shall, to the extent possible, negotiate a revised provision which (a) complies with
Applicable Law, (b) does not alter any of the substantive rights, obligations or liabilities of any
party under this Agreement or any other Stadium Agreement, and (c) confers upon the Parties the
benefits intended to be conferred by the invalid provision; and the remaining provisions of this
Agreement, if capable of substantial performance, shall be enforced as if this Agreement was
entered into without the invalid provision.
21. Counterparts. If this Agreement is executed in several counterparts, each of
those counterparts shall be deemed an original, and all of them together shall constitute one and
the same instrument.
22. County Inspector General and Commission Auditor. The attention of the
Operator is hereby directed to Section 2-1076 of the County Code establishing the Miami -Dade
County Office of the Inspector General (the "OIG"), which has the authority and power to
investigate County affairs and review past, present and proposed County programs, accounts,
records, contracts and transactions. The OIG contract fee shall not apply to this Agreement or
any other Stadium Agreement, and the Team Affiliates shall not be responsible for any expense
reimbursements or other amounts payable to the OIG or its contractors. The attention of the
Operator is hereby directed to Section 2-481 of the County Code related to the Commission
Auditor.
23. Sovereisn Rights. The County and City retain all of their respective sovereign
prerogatives and rights as a county or city under State law with respect to the planning, design,
construction, development and operation of the Baseball Stadium. It is expressly understood that
notwithstanding any provisions of this Agreement and the Stadium Agreements and the County's
and the City's status thereunder:
(a) The County and the City retain all of their sovereign prerogatives and
rights and regulatory authority (quasi-judicial or otherwise) as a county or city under State law
and shall in no way be estopped from withholding or refusing to issue any approvals of
applications for building, zoning, planning or development under present or future laws and
regulations whatever nature applicable to the planning, design, construction and development of
the Baseball Stadium, the Baseball Stadium Site, the Public Infrastructure, the Other
Development or the Parking Facilities, or the operation thereof, or be liable for the same; and
(b) The County and the City shall not by virtue of this Agreement or the other
Stadium Agreements be obligated to grant the other, or the Team, any Team Affiliate, or the
Stadium Developer any approvals of applications for building, zoning, planning or development
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under present or future laws and ordinances of whatever nature applicable to the planning,
design, construction, development and/or operation of the Baseball Stadium, the Baseball
Stadium Site, the Public Infrastructure, the Other Development or the Parking Facilities.
Notwithstanding and prevailing over any contrary provision in this Agreement, any County or
City covenant or obligation that may be contained in this Agreement shall not bind the Board,
the County's Planning and Zoning Department, DERM, the Commission or any other County,
City, federal or state department or authority, committee or agency to grant or leave in effect any
zoning changes, variances, permits, waivers, contract amendments, or any other approvals that
may be granted, withheld or revoked in the discretion of the County or City or other applicable
governmental agencies in the exercise of its police power.
24. Force Maieure. If any Party shall be delayed in the performance of any
obligation hereunder as a result of a Force Majeure, then the performance of such obligation
shall be extended by the length of such delay. In response to and during any delay caused by a
Force Majeure, the Parties shall at all times act diligently and in good Faith to bring about the
termination or removal of the Force Majeure as promptly as reasonably possible and any party
seeking an excuse of performance due to such Force Majeure shall work diligently and in good
faith to reduce or eliminate any damage, cost or delay caused by such Force Majeure. Without
limiting the foregoing, if a Party fails to meet a deadline specified in this Agreement due to
another Party's failure to meet a prior and related deadline (or due to an event covered by
Section 3.6(f) of the Construction Agreement), such subsequent deadline shall be extended by
the number of days the delay was attributable to the prior deadline failure, and the Party failing
to meet the prior deadline shall not be relieved of liability for such breach.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
duly executed this Agreement as of the date and year first above written.
CITY OF MIAMI, FLORIDA MIAMI-DADE COUNTY, FLORIDA
Pedro G. Hernandez
City Manager
City of Miami
ATTEST:
L-02
City Clerk
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LIM
George M. Burgess
County Manager
Miami -Dade County
ATTEST:
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Clerk of the Board
APPROVED AS TO FORM AND
CORRECTNESS:
City Attorney
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APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
County Attorney
FLORIDA MARLINS, L.P.
By: Double Play Company,
its General Partner
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Name:
Title:
Exhibit A
Provisions arising under Section 3(e)
With respect to the exercise of the Government Parties' rights under the Subordinate Lien and
for the benefit of MLB (and, for the avoidance of doubt, not for the benefit of any third party),
the Government Parties acknowledge and agree that: (A) the Government Parties are aware of
the provisions contained in Article V, Section 2(b)(2) of the Major League Constitution among
the Major League Clubs (such document, as may be amended from time to time, the "MLB
Constitution"), and recognize that the Commissioner of MLB has issued "Control Interest
Transfers — Guidelines & Procedures", dated November 9, 2005 (such document and any
successor guidelines, as may be amended from time to time, the "Guidelines"); (B) Article V,
Section 2(b)(2) of the MLB Constitution and the Guidelines require that the transfer of a Control
Interest in either the Franchise or the Team be subject to the approving vote of the Major League
Clubs in their absolute discretion; (C) the Commissioner of MLB holds the "best interests of
Baseball" powers under the MLB Constitution; (D) such approvals of the Major League Clubs
would be required for any sale or transfer of the Franchise, the Team, or a Control Interest in
either the Franchise or the Team, or any sale, transfer, assignment, license, sublease, or any other
conveyance of other elements of collateral covered by the Subordinate Lien arising directly from
the Team's interest in the Franchise, any MLB Entity or the MLB Rules and Regulations, to a
third party as well as to either Government Party, and that each such transaction shall be subject
to and made in accordance with the MLB Constitution and the Guidelines; (E) any temporary or
permanent management of the Franchise or the Team pursuant to the exercise of foreclosure
rights under the Subordinate Lien shall be subject to the prior approval of the Commissioner and
the Major League Clubs; (F) in the event that, pursuant to a foreclosure under the Subordinate
Lien, a Government Party desires to operate the Franchise or the Team for its own account on a
temporary or permanent basis, such Government Party shall seek the prior approval of the
Commissioner and the Major League Clubs, in accordance with the MLB Constitution and the
Guidelines. Solely as between the Government Parties and Major League Baseball (and, for the
avoidance of doubt, not for the benefit of the Team or any other third party), the Government
Parties acknowledge that the rights and powers granted to the Government Parties under the
Subordinate Lien shall in all respects be subordinate to MLB Rules and Regulations.
13
ASSURANCE AGREEMENT
This AssaTnce Agreement (this "Agreement") is made as of the _ day of , 2009,
by and among M'ami-Dade County, a political subdivision of the State of Florida (the
"County" ), the City f Miami, a municipal corporation of the State of Florida (the "City"), and
Florida Marlins, L.P., Delaware limited partnership (the "Team").
Recitals
A. Contempor eously with the execution of this Agreement, the County, the City
and Marlins Stadium Deve per, LLC, a Delaware limited liability company (the "Stadium
Developer"), are entering inlConst
struction Administration Agreement (the "Construction
Agreement") providing for theg, design and construction of the Baseball Stadium by the
Stadium Developer. (Capitarms used but not defined in this Agreement have the
meanings set forth in the ConsAgreement.)
B. The County anty have required, as a material inducement and condition
precedent to entering into thetion Agreement, that the Team executeand deliver this
Agreement to unconditionally and irrocably guaranty the Stadium Developer's obligations
(whether of payment or performance) un rand in accordance with the Construction Agreement,
C. The Team has a financial in rest in the Stadium Developer and an interest in the
construction of the Baseball Stadium pursu to the Construction Agreement, and has agreed to
execute and deliver this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Guaranty. The Team, as primary bligor and not merely as surety, absolutely,
unconditionally and irrevocably guarantees to the ounty and the City the full and prompt
payment and performance of all obligations of the tadium Developer under the terms and
conditions of the Construction. Agreement, whethe liquidated or unliquidated, fixed or
contingent, now existing or hereafter arising, of any kind nature whatsoever, including, but not
limited to, the following:
(a) to cause the Baseball Stadium Project t be completed in accordance with
the Construction Agreement;
(b) the payment and discharge of all Stadium roject Costs payable by the
Stadium Developer under the Construction Agreement, including i) the Stadium Developer's
obligation to provide the funding required by Section 6.4 of the Cons ction Agreement and (ii)
the Stadium Developer's obligation to pay for any Stadium Cost verruns (other than any
Governmentally Caused Cost Overruns) and Public Infrastructure Cost Overruns (to the extent
the Stadium Developer is responsible for such Public Infrastructure Cost verruns as set forth in
Section 6.5 of the Construction Agreement) in accordance with Section 6. of the Construction
Agreement;
(c) the maintenance of a bank line of credit or other imilar financial
arrangement that may be used only to fiord Stadium Cost Overruns as provided Section 6.5 of
the Construction Agreement, and the o ligations of the Stadium Developer with respect to the
payment and performance bonds under th , Construction Agreement; and
(d) the inderrmity obligations of the Stadium Developer set forth in Article
XII of the Construction Agreement.
All amounts due, debts, liabilities, payment ob
this Section 1 are referred to herein as the "Ob:
2.
ons and performance obligations described in
(a) In the event of any default `;by the Stadium Developer under the
Construction Agreement of any of its Obligations, after the expiration of any cure period
applicable thereto, the Team agrees, upon the written request of either the County or the City to
the Team, to pay and perform the Obligations in respect of such default, including any indemnity
obligations of the Stadium Developer under the Constriction Agreement arising from such
default. If the Team fails (i) to pay the Obligations 6 (ii) fails to commence and pursue
diligently the performance of any other Obligations with�p ten (10) Business Days after its
receipt of such written notice from the County or the Cry demanding the payment and/or
performance of such Obligations by the Team, then, either efore or after pursuing any other
remedy of the County or the City against the Team or the Sta , ium Developer, and regardless of
whether the County or the City shall ever pursue any such othe remedy, the County and the City
shall have the right to exercise against the Team any of the rem dies available to the County and
the City in respect of such default under applicable law, includin the rights of a secured party as
provided in Section 3. If the default by the Stadium Developer i volves a matter that would be
subject to arbitration under Article XIV of the Construction Agree ent, any proceeding against
the Team hereunder with respect to that matter shall be conducted accordance with the same
arbitration procedures, but without requiring a duplication of any sub arbitration proceeding (it
being acknowledged that the Stadium Developer will likely be joine in any such proceeding
against the Team).
(b) The payment portion of this Agreement, being a guhranty of payment and
not collection, notwithstanding anything to the contrary herein contain d, in any action to
enforce any of the Obligations, the County or the City may proceed agains the Team, with or
without: (i) joining the Stadium Developer in any such action; (ii) comm ting any action
against or obtaining any judgment against the Stadium Developer; or (iii) mmencing any
proceeding to enforce the Construction Agreement or any other Stadium Agreeme t.
3. Subordinate Lien on Franchise, To secure the Team's guarantee othe Stadium
Developer's funding obligation under Section 6.4 of the Construction Agreement e "Team
Funding_ Obligation'), the Team shall grant to the County and the City, no later than ixty (60)
days after the date of this Agreement, a perfected, subordinated security interest in the Fchise
(the "Subordinate Lien ') on the terms set forth in this Section 3. The granting and terms of the
Subordinate Lien shall be subject to each and all of the following conditions:
(a) The Subordinate lien shall become effective upon execution and delivery
of the subordination agreement referred to in Section 3(f) below.
(b) The Subordinate Lien may be foreclosed upon by the County and City,
and the County and the City shall be Entitled to exercise the rights granted to a secured party
upon default under the UCC and other applicable laws, only in the event of a breach by the Team
of the Team Funding Obligation, after th�,expiration of any cure period applicable thereto, and
only with the prior written consent of the hd ders of the Senior Secured Indebtedness (as defined
below). The Subordinate Lien secures only the performance of the Team Funding Obligation.
(c) The Subordinate Lien s�all be fully subordinate as to payment and lien
priority to any then-cuirent or future lien given `y the Team to secure payment and performance
of its obligations, without limit as to amount, inclluding guarantee obligations, in respect of any
then existing or future indebtedness (including capitalized leases and other obligations classified
as liabilities in accordance with generally accepted accounting principles) of the Team or any
person or entity that is affiliated with the Team or hos invested in the Team or in which the Team
is an investor, provided that the principal purpose oaf the indebtedness in respect of which such
lien is granted relates to the financing or operatio of the Team or the development of the
Baseball Stadium or Baseball Stadium Site ("Senior S cured Indebtedness"). No proceeds of the
Subordinate Lien may be paid to the County or City unless and until all Senior Secured
Indebtedness is paid in full. No consent of the County r City is required for the incurrence of
Senior Secured Indebtedness.
(d) The County and City hereby disci im any right that might otherwise
implicitly or explicitly arise under or in respect of the Sub rdinate Lien to review, approve or
consent to (i) the loan, security and other documentation for enior Secured Indebtedness or any
guarantee thereof and (ii) any transfer or the making of a pled of the Franchise, the Team or an
interest in either (or any financing relating thereto) that does n t involve a violation of Section
13(a) of this Agreement.
(e) If then customarily required by Major Leagu Baseball in connection with
the grant of liens in Major League Baseball franchises generally, in onnection with the grant of
the lien as provided in clause (a) above, the County, the City and ajor League Baseball will
enter into a standard form Major League Baseball lien consent agree ant on customary terms
generally applied by Major League Baseball to third party holders o liens on Major League
Baseball franchises and in which, among other things (A) Major LeaguBaseball will confirm
its approval of this Agreement and consent to the terms of the Subordinate Lien, and (B) the
County and City will agree, for the benefit of Major League Baseball, to th provisions set forth
in Exhibit A.
(f) The County, the City and the Team shall cooperate reason bly and in good
faith in the negotiation and execution of any subordination or other documents a d instruments
as may be necessary to effectuate the intentions of this Section 3, provided tha they do not
increase the obligations of the City or County under the Stadium Agreements. ke City and
County each shall have the right to elect to pursue their respective legal remedies dire ly against
the Team or execute on its security interest or both, subject to the terms of this aeement.
Without limiting the generality of the foregoing (i) the County and the City agree, prompt upon
written request by the Team, to enter into subordination or other agreements with the hol rs of
Senior Secured Indebtedness, in form and substance reasonably satisfactory to the Team nd
such holders, to acknowledge\and effectuate the subordination and other limitations on the
Subordinate Lien agreed by theounty and City herein, provided that they do not increase the
obligations of the City or Coun�+` under the Stadium Agreements; and (ii) the Team agrees,
promptly upon written request by trie Board of County Commissioners (the "Board") and/or the
City Commission of the City of Miami (the "Commission'), to deliver to the Board and the
Commission, at the Team's sole expez��se, such financing statements and other documents as the
Board and/or the Commission may rasonably request, in form and substance reasonably
satisfactory to the Board, to further evidZce and perfect the Subordinate Lien. The Team shall
submit a draft of such subordination or A,Ier agreements to the County and City no later than
thirty (30) days after the date of this Agreeirlent.
(g) The Subordinate Lien s�iall automatically terminate and be void upon (i) a
termination of the Construction Agreement in accordance with its terms; or (ii) the closing by the
Team and/or its Affiliates of a financing ti'a%saction that provides funds for the Stadium
Developer's funding obligation under Section 6.4�,of the Construction Agreement, provided that
the Stadium Developer has closed on such financing and the lender is contractually obligated to
provide such funds to the Stadium Developer for the Baseball Stadium Project, provided that at
the time of such closing those funds (and earnings th*on) and other funds to be provided by the
Government Parties and the Stadium Developer or othkrs on behalf of the Stadium Developer are
reasonably sufficient to pay the remaining Stadium``,Project Costs, including Stadium Cost
Overruns and Public Infrastructure Cost Overruns (t6\the extent the Stadium Developer is
responsible for such Public Infrastructure Cost Overrules as set forth in Section 6.5 of the
Construction Agreement) known or reasonably likely to\be incurred as of the time of such
closing, provided further if all such funds are not reasonabl} =fficient at the time of such closing
but are deemed reasonably sufficient at a Iater date, the Subordinate Lien shall automatically
terminate on such later date. Upon such termination, the Government Parties shall execute and
deliver to the Team such documents as the Team may reasonably request, in form and substance
reasonably satisfactory to the City, the County and the Team, to\vidence the termination of the
Subordinate Lien,
4. Extension and Reinstatement of Guaranty. This greement shall continue to
be effective, or be reinstated, as the case maybe, if at any time after i s termination any payment
and/or performance of any of the Obligations is or is sought to be rescz, ded or must otherwise be
restored or returned by the County or the City upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Stadium Developer or the Team or u on or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or s'r�nilar officer for, the
Stadium Developer or the Team, all as though such performance had not bee accomplished.
5. No Discharge. The Team agrees that the Obligations, covenants and agreements
of the Team under this Agreement shall not be affected or impaired by any act o, the County, the
City or any event or condition except full payment and performance of the Obligations. The
Team agrees that, without full payment and performance of the Obligations, the 1 bility of the
Team hereunder shall not be discharged for any reason whatsoever. The Team intends that it
shall remain liable hereunder as a principal until all Obligations shall have bee fulfilled,
notwithstanding any fact, act, event or occurrence which might otherwise operate as a legal or
equitable discharge of a surety or guarantor. Notwithstanding the foregoing or an , other
4
provision of this Agreement, the Team shall only be required to pay and perform the Obligations
and its covenants and agreements under this Agreement to the extent the Stadium Developer is
required to pay and perform such obligations under the Construction Agreement,
6, Waiver. The Team expressly waives: (a) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever under the Construction Agreement, and filing
of claims with a court in the event of receivership or bankruptcy of Stadium Developer, any
surety, co -obligor, indemnitor, other guara' or, pledgor or any other person liable in any respect,
either directly or indirectly, under the Const , ction Agreement (each, an "Obligor"); (b) the right
to trial by jury in any action to enforce this A eement; and (c) any failure by the County or City
to inform Team of any facts the County or Cimay now or hereafter know about the Stadium
Developer or the transactions contemplated by thConstruction Agreement, it being understood
and agreed that the County or City has no duty to so inform and that Team is fully responsible
for being and remaining informed by the Stadium eveloper of all circumstances bearing on the
existence, creation or risk of nonperformance of th. Obligations, provided that this provision
shall not limit any obligation or duty the County ority may have to the Stadium Developer
under the Construction Agreement. No modification 6waiver of any of the provisions of this
Agreement will be binding upon any party except as ex�\thereo
set forth in a writing duly signed
and delivered on behalf of that party and, with respect twaivers granted by the County or
City, such waiver is approved by the Board of County Cissioners or the City Commission,
respectively.
7, Governing Lava; InterQretation, This Aent has been negotiated, executed
and delivered in Florida, and shall be governed by thof the State of Florida without
reference to the conflicts of law principles of that State. a Ings of sections and paragraphs
in this Agreement are for convenience only and shall nco strued in any way to limit or
define the content, scope or intent of the provisions heAs used in this Agreement, the
singular shall include the plural, and masculine, feminid ne ter pronouns shall be fully
interchangeable where the context so requires. If anyision f this Agreement, or any
paragraph, sentence, clause, phrase or word, or the applithereo in any circumstances, is
adjudicated by a court of competent jurisdiction to be i, the valh ity of the remainder of
this Agreement shall be construed as if such invalid part were never incl ed herein. Time is of
the essence of this Agreement. All payments to be. made hereunder shal be made in currency
and coin of the United States of America which is legal tender for public an private debts at the
time of payment,
8. Termination. Subject to Section 4, this Agreement and the bligations shall
terminate upon the date the Obligations have been fully paid and performed,
9. Actions by the County and City. The County and the Cit are hereby
authorized, without notice or demand and without affecting the liability of the Tea hereunder,
subject to approval by the Board of County Commissioners, in the case of the Cou ty, or the
City Commission, in the case of the City,} from time to time: (a) to renew or extend th time for
payment of all or any part of the Obligations (subject to the terms of the Cons ction
Agreement); (b) to accept partial payments and/or performance on all or any part f the
Obligations; (c) release any other Obligor; and (d) to settle, release, compromise, colle t or
otherwise liquidate all or any part of the Obligations, and any of the foregoing may be done in
any manner in accordance with the Construction Agreement, without affecting or impairing all or
any part of the obligations of the Tehereunder.
10. Additional Re resent ions and Warranties. In addition to and independent of
any other obligation or liability unders Agreement, the Team hereby represents and warrants
to the County and the City as follows:
(a) the Team has an eco�omic interest in the Stadium Developer as a member
and an interest in the success of the Baseball tadium Project;
(b) the execution, delivery And performance by the Team of this Agreement
have been duly authorized by all necessary lima ed partnership action, and do not and will not
contravene or conflict with (i) the limited partner ip agreement of the Team, (ii) any provision
of Baseball Rules and Regulations, (iii) any law, or, er, rule, regulation, writ, injunction or decree
now in effect of any government, governmental inst mentality or court having jurisdiction over
the Team, or (iv) any loan agreement or other contra tual restriction binding on or affecting the
Team or any of its property or assets, except where an of the foregoing could not reasonably be
expected to have a material adverse effect on the Team;
(c) this Agreement is a legal, valid 'and binding obligation of the Team
enforceable against the Team in accordance with its terms;
(d) except as disclosed in writing to the C unity or the City, there is no action,
proceeding or investigation pending or, to the knowledge of th Team, threatened or affecting the
Team, which may adversely affect the ability of the Team to Ifill and perform the Obligations
and its other undertakings under this Agreement. The Team is of in default with respect to any
judgment, order, injunction or decree of any Governmental Au ority which is in any respect
material to the transactions contemplated in and by this Agreement
(e) the Team is a limited partnership duly form�d, validly existing, and in
good standing under the laws of the State of Delaware;
(f) the Team is a member in good standing of Majo League Baseball and is
in compliance in all material respects with all applicable Baseball Rule and Regulations which
are relevant to the transactions contemplated herein:
(g) the Team has full power and legal right to execto and deliver this
Agreement and to perform and observe the provisions of this Agreement; and
(h) the Team is in compliance with MLB's Debt Service ule, pursuant to
which generally an MLB club's total outstanding debt may not exceed ten ti es its average
earnings before interest, taxes, depreciation and amortization (EBITDA) in the p eceding three
years.
11. Covenant Regarding Compliance with Debt Service Rule. The Team
covenants that, until Substantial Completion or the termination of the Construction AAment, it
shall remain in compliance with MLB's Debt Service Rule and, upon the reasonable request of
the County, shall provide the County with a certificate from an officer of the Team confirming
such compliance. .,
12. Indeninily. In addition to\ its guarantee of the Stadium Developer's
indemnification obligations under the Construction Agreement, the Team shall indemnify and
hold harmless each Government Party and As officers, employees, attorneys, agents and
instrumentalities (collectively, "Government indemnitees") from any and all liability, losses or
damages, including reasonable attorneys' fees an'� costs of defense, which the Government
Indemnitees may incur as a result of claims, den ,s, suits, causes of actions or proceedings of
any kind or nature arising out of or resulting from tHp breach of Sections 1, 3, 10 or 11 of this
Agreement by the Team. Any such indemnification 'Shall be provided in accordance with the
indemnification procedures set forth in Section 13.3 of the Operating Agreement,
13. Successors and Assiens: Third P
(a) This Agreement shall bind the Team and its assigns and successors;
provided that the Team shall not be entitled to transfer 6` assign its obligations hereunder
without the prior written consent of the Government Parties, ' ich consent shall be in their sole
discretion and maybe conditioned upon the Team's remaining Fable under this Agreement if the
Government Parties are not reasonably satisfied with the creditworthiness of the transferee;
provided, further, however, that the Team may, without the \ rior written consent of the
Government Parties, transfer and assign its obligations hereunder�o any Person (or Affiliate of
any Person) that acquires the Team's Major League Baseball ranchise with the required
approval of Major League Baseball, provided that (i) such transferee or its Affiliate assumes
unconditionally, in a writing reasonably satisfactory to the Gove ent Parties, all of the
obligations of the Team under this Agreement, and (ii) such transferee r its Affiliates assume all
of the other obligations of the Team and its Affiliates under the other St dium Agreements. The
Team shall provide the City and County written evidence of Major League Baseball's approval
of the transferee.
(b) This Agreement shall bind the Government Partiesd their respective
assigns and successors; provided the neither Government Party may trap er or assign this
Agreement or any of their respective rights and obligations hereunder withou the prior written
consent of the Team, which consent shall be in the Team's sole discretion.
(c) Nothing in this Agreement, express or implied, is intende to (i) confer
upon any Person other than the parties and their permitted successors and assigns y rights or
remedies under or by reason of this Agreement as a third -party beneficiary or othe Ise; or (ii)
authorize anyone not a party to this Agreement to maintain an action pursuant to or b sed upon
this Agreement.
14. Notices. Any notice, consent or other communication under this Agreemer t shall
be in writing and shall be considered given when delivered in person or sent by facsimije or
electronic mail (provided that any notice sent by facsimile or electronic mail shall
simultaneously be sent personal delivery, overnight courier or certified mail as provided heren ),
one (1) Business Day after being sent b� reputable overnight carrier, or three (3) Business Days
after being mailed by certified mail, return receipt requested, to the parties at the addresses set
forth below (or at such other address as\a party may specify by notice given pursuant to this
Section to the other parties): \
To the County: County Manager
111 NW Vt Street, Suite 2900
Miami, Florida 33128
Attention: George M. Burgess
with a copy to: County Atto ey
III NW ill St 'et, Suite 2810
Miami, Florida\ 33128
Attention: Ro*t A. Cuevas, Jr. and Geri Keenan
To the City: City Manager
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
Attention: Pedro G. ernandez
with a copy to: City Attorney
444 SW 2nd Avenue, 1 th Floor
Miami, Florida 33130
Attention: Julie 0. Bru d Olga Ramirez-Seijas
To the Team: 2267 Dan Marino Boulev
Miami, Florida 33056
Attention: David Samson an Derek Jackson
with a copy to: Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Attention: Wayne D. Katz, Esq,
15. Agent for Service of Process. The Team hereby submits tpersonal jurisdiction
in the State of Florida for the enforcement of this Agreement and waives any and all personal
rights to object to such jurisdiction for the purposes of litigation to enforce his Agreement. In
the event such litigation is commenced at any time when the Team is not pe anently domiciled
in the State of Florida, the Team agrees that service of process may be m de and personal
jurisdiction over the Team obtained, by service of a copy of the summons, corr�plaint and other
pleadings required to commence such litigation upon the appointed agent for s-Avice of process
in the State of Florida, which agent the Team hereby designates to be: \
CT Corporation System
1200 South Pine Island Road
Plantation, Florida 33324
The Team agrees that this appointment o an agent for service of process is made for the mutual
benefit of the Team and the County and ay not be revoked without the County's consent. The
Team hereby agrees and consents that any,such service of process upon such agent shall be taken
and held to be valid personal service upA the Team if the Team shall not be then physically
present, residing within, or doing business within the State of Florida, and that any such service
of process shall be of the same force and validity as if service were made upon the Team when
physically present, residing within, or doing business in the State of Florida. The Team waives
all claim of error by reason of any such service properly given. The Team hereby agrees that an
action, suit or proceeding to enforce this Agreement may be brought only in the Eleventh
Judicial Circuit Court of Florida for Miami -Dade County or the United States District Court for
the Southern District of Florida, and hereby waives any objection which the Team may have to
the laying of the venue of any such action, suit or proceeding in any such Court.
16. Nonrecourse Liability of Team PrrsonneI. Notwithstanding and prevailing
over any contrary provision or implication in this Agreement and except for their criminal acts
with respect to this Agreement (i.e., acts which would' Constitute crimes were they prosecuted for
and convicted of such acts), the officers, directors, parlpers, shareholders, members, employees
and agents of the Team and their Affiliates (the "Team P�rsonnel") shall *not in any way be liable
under or with respect to this Agreement; no deficiency o} other monetary or personal judgment
of any kind shall be sought or entered against any of the Tam Personnel with respect to liability
under or with respect to this Agreement; no judgment with respect to liability under or with
respect to this Agreement shall give rise to any right of execution or levy against the assets of
any of the Team Personnel; and the liability of the Team under this Agreement shall be limited to
the assets of the Team. 1
17. Nonrecourse Liability of Count y Personnel. Notwithstanding and prevailing
over any contrary provision or implication in this Agreement, n member, elected or appointed
official, officer, employee, agent, independent contractor or con ultant of the County shall be
liable to the Team, or any successor in interest to the Team, in the vent of any default or breach
by the County for any amount which may become due to the Team , any successor in interest to
the Team under this Agreement, or on any other obligation under t e terms of this Agreement,
except for their criminal acts with respect to this Agreement (i.e., a is which would constitute
crimes were they prosecuted for and convicted of such acts).
18. Nonrecourse Liability of City Personnel. Notwith"an ng and prevailing over
any contrary provision or implication in this Agreement, no member, elected or appointed
official, officer, employee, agent, independent contractor or consultant of t e City shall be liable
to the Team, or any successor in interest to the Team, in the event of any de ult or breach by the
City for any amount which may become due to the Team or any successor in I terest to the Team
under this Agreement, or on any other obligation under the terms of this Agn ement, except for
their criminal acts with respect to this Guaranty (i.e,, acts which would const'tute crimes were
they prosecuted for and convicted of such acts).
19. Merger Clause. This Agreement, including any schedules and e hibits to this
Agreement, and the other Stadium Agreements contain the sole and entire agreeme among the
Parties and their Affiliates with respect to their subject matter, are fully integrated, and supersede
all prior written or oral agreements among them relating to that subject matter, including the
BSA. Except as specifically set forth in this Agreement and the other Stadium Agreements,
there shall be no warranties, representations or other agreements among the Parties or their
Affiliates in connection with tyle subject matter hereof or thereof.
20. Severability. enever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under Applicable Law, but if any
provision of this Agreement is he%ant,
be prohibited by or invalid under Applicable Law, the
Parties shall, to the extent possibnegotiate a revised provision which (a) complies with
Applicable Law, (b) does not alter of the substantive rights, obligations or liabilities of any
party under this Agreement or any othe Stadium Agreement, and (c) confers upon the Parties the
benefits intended to be conferred by the invalid provision; and the remaining provisions of this
Agreement, if capable of substantial per rmance, shall be enforced as if this Agreement was
entered into without the invalid provision.
21. Counterparts. If this Agreetrient is executed in several counterparts, each of
those counterparts shall be deemed an original,d all of them together shall constitute one and
the same instrument.
22. Counq Inspector General and Commission Auditor. The attention of the
Operator is hereby directed to Section 2-1076 of the County Code establishing the Miami -Dade
County Office of the Inspector General (the "OIG'), which has the authority and power to
investigate County affairs and review past, present an proposed County programs, accounts,
records, contracts and transactions. The OIG contract e shall not apply to this Agreement or
any other Stadium Agreement, and the Team Affiliates s 11 not be responsible for any expense
reimbursements or other amounts payable to the OIG or Its contractors. The attention of the
Operator is hereby directed to Section 2-481 of the CounX Code related to the Commission
Auditor.
23. Soverei n Rights. The County and City retain 11 of their respective sovereign
prerogatives and rights as a county or city under State law with kespect to the planning, design,
construction, development and operation of the Baseball Stadium. t is expressly understood that
notwithstanding any provisions of this Agreement and the Stadium1greements and the County's
and the City's status thereunder: \\
(a) The County and the City retain all of their sovere prerogatives and
rights and regulatory authority (quasi-judicial or otherwise) as a county o city under State law
and shall in no way be estopped from withholding or refusing to issue any pprovals of
applications for building, zoning, planning or development under present or tune laws and
regulations whatever nature applicable to the planning, design, construction d development of
the Baseball Stadium, the Baseball Stadium Site, the Public Infrastructure, the Qther
Development or the Parking Facilities, or the operation thereof, or be liable for 1he same; and
(b) The County and the City shall not by virtue of this Agreement or the other
Stadium Agreements be obligated to grant the other, or the Team, any Team Affilia��, or the
Stadium Developer any approvals of applications for building, zoning, planning or development
10
under present or future laws and ordices of whatever nature applicable to the planning,
design, construction, development an r operation of the Baseball Stadium, the Baseball
Stadium Site, the Public Infrastructure, t�e Other Development or the Parking Facilities.
Notwithstanding and prevailing over any o
City covenant or obligation that may be corgi
the County's Planning and Zoning Departmf
City, federal or state department or authority,
zoning changes, variances, permits, waivers,
may be granted, withheld or revoked in the c
governmental agencies in the exercise of its p
ry provision in this Agreement, any County or
ed in this Agreement shall not bind the Board,
DERM, the Commission or any other County,
unittee or agency to grant or leave in effect any
itract amendments, or any other approvals that
etion of the County or City or other applicable
24. Force Maieure. If any Party shNI be delayed in the performance of any
obligation hereunder as a result of a Force Majeur ,, then the performance of such obligation
shall be extended by the length of such delay. In response to and during any delay caused by a
Force Majeure, the Parties shall at all times act dilige tly and in good faith to bring about the
termination or removal of the Force Majeure as promp y as reasonably possible and any party
seeking an excuse of performance due to such Force Ma.eure shall work diligently and in good
faith to reduce or eliminate any damage, cost or delay ca sed by such Force Majeure. Without
limiting the foregoing, if a Party fails to meet a deadlin specified in this Agreement due to
another Party's failure to meet a prior and related deadli e (or due to an event covered by
Section 3.6(o of the Construction Agreement), such subseq ent deadline shall be extended by
the number of days the delay was attributable to the prior dea line failure, and the Party failing
to meet the prior deadline shall not be relieved of liability for s ph breach.
IN WITNESS WHEREOF, the parties hereto, intending t be legally bound hereby, have
duly executed this Agreement as of the date and year first above w itten.
CITY OF MIAMI, FLORIDA
Pedro G. Hernandez
City Manager
City of Miami
ATTEST;
City Clerk
MIAMI-DADE C )LINTY, FLORIDA
By: \
George M. But
ess
County Man'
Miami-Dade Cont
ATTEST:
By:
Clerk of the Board
11
APPROVED AS TO FORM AND
CORRECTNESS:
City Attorney
A
Provisions arising�nder Section 3(e)
With respect to the exercise of the Government arties' rights under the Subordinate Lien and
for the benefit of MLB (and, for the avoidance o ;doubt, not for the benefit of any third party),
the Government Parties acknowledge and agree tl'�t: (A) the Government Parties are aware of
the provisions contained in Article V, Section 2(b)) of the Major League Constitution among
the Major League Clubs (such document, as may e amended from time to time, the "MLB
Constitution"), and recognize that the Ownership Committee of Baseball has issued "Control
Interest Transfers — Guidelines & Procedures", dated%August 23, 1993 (such document and any
successor guidelines, as may be amended from time to time, the "Guidelines"); (B) Article V,
Section 2(b)(2) of the MLB Constitution and the Guidelines require that the transfer of a Control
Interest in either the Franchise or the Team be subject O.the approving vote of the Major League
Clubs in their absolute discretion; (C) the Commission4r of MLB holds the "best interests of
Baseball" powers under the MLB Constitution; (D) such\approvals of the Major League Clubs
would be required for any sale or transfer of the Franchise, the Team, or a Control Interest in
either the Franchise or the Team, or any sale, transfer, assiglent, license, sublease, or any other
conveyance of other elements of collateral covered by the S bordinate Lien arising directly from
the Team's interest in the Franchise, any MLB Entity or the MLB Rules and Regulations, to a
third party as well as to either Government Party , and thatea such transaction shall be subject
to and made in accordance with the MLB Constitution and the Guidelines; (E) any temporary or
permanent management of the Franchise or the Team pursua t to the exercise of foreclosure
rights under the Subordinate Lien shall be subject to the prior ap�roval of the Commissioner and
the Major League Clubs; (F) in the event that, pursuant to a for closure under the Subordinate
Lien, a Government Party desires to operate the Franchise or the earn for its own account on a
temporary or permanent basis, such Government Party shall se the prior approval of the
Commissioner and the Major League CIubs, in accordance with th MLB Constitution and the
Guidelines. Solely as between the Government Parties and Major L ague Baseball (and, for the
avoidance of doubt, not for the benefit of the Team or any other thi d party), the Government
Parties acknowledge that the rights and powers granted to the Gove ent Parties under the
Subordinate Lien shall in all respects be subordinate to MLB Rules and egulations.
13