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EXHIBIT 2.9
AMENDED AND RESTATED
CONTRIBUTION AND EXCHANGE AGREEMENT
(BOCA RATON HOTEL & CLUB)
This Contribution and Exchange Agreement (this "Agreement") is entered into
as of March 20, 1997 by and among FLORIDA PANTHERS HOLDINGS, INC., a Florida
corporation ("Panthers"); PANTHERS BRHC LIMITED, a Florida limited partnership
("Panthers BRHC Limited"); BOCA RATON HOTEL AND CLUB LIMITED PARTNERSHIP, a
Florida limited partnership ("Partnership"); BRMC, L.P., a Delaware limited
partnership ("General Partner") and BRMC CORPORATION, a Delaware corporation and
general partner of the General Partner ("BRMC").
RECITALS
The Board of Directors of Panthers has determined that it is in the best
interests of Panthers shareholders for Panthers to acquire, directly or
indirectly, all of the assets of the Partnership and the General Partner has
determined on behalf of the Partnership that it is in the best interests of the
Partnership and its limited partners to transfer all its assets to Panthers BRHC
Limited as provided herein.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
THE EXCHANGE
1.1 The Closing. Subject to the terms and conditions of this Agreement,
the consummation of the transactions contemplated hereunder ("Closing") shall
take place on a date which is on or about five (5) business days after
satisfaction or waiver of the conditions set forth in Articles VI and VII, at
the offices of Panthers' counsel, Akerman, Senterfitt & Xxxxxx, P.A., Miami,
Florida, or such other time and place as the parties may otherwise agree, it
being the intent of the parties to close as promptly as practicable. The date on
which the Closing occurs is hereinafter referred to as the Closing Date.
1.2 Partnership's Contribution of Assets. The Partnership shall convey,
transfer, assign and deliver to Panthers BRHC Limited at the Closing on the
terms and subject to the conditions set forth in this Agreement, all of its
assets, properties and business of every kind and description, whether real,
personal or mixed, tangible or intangible, wherever located (except those assets
of the Partnership which are specifically excluded as provided in Section 1.3
hereof) as shall exist on the Closing Date (collectively, the "Contributed
Assets"). Without limiting the generality of the foregoing, the Contributed
Assets shall include the following:
(a) all right, title and interest of the Partnership in and to the
Owned Property (as defined in Section 3.11 hereof) and as lessee under any
leases covering the properties leased by the Partnership;
(b) all machinery, equipment, tools, supplies, leasehold improvements,
constructions in progress, furniture and fixtures located at or on any
parcel of the Owned Property or leased premises;
(c) all inventory of the Partnership;
(d) all receivables of the Partnership, including without limitation,
all trade accounts receivable, notes receivable, and receivables from
insurance companies, service contract providers and any other vendors or
suppliers of the Partnership (whether on accounts owed as incentive
payments or otherwise), but excluding any receivables due from any
Affiliate of the Partnership or any Partner of the Partnership which shall
be paid or satisfied prior to the Closing;
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(e) all of the interests, rights and benefits accruing to the
Partnership under any sales contracts, supply contracts, service
agreements, purchase orders and purchase commitments made by the
Partnership in the ordinary course of business, all other agreements to
which the Partnership is a party or by which it is bound and all other
choses in action, causes of action and other rights of every kind of the
Partnership;
(f) all operating data and records of the Partnership, including
without limitation, customer lists and records, financial, accounting and
credit records, correspondence, budgets and other similar documents and
records;
(g) all of the proprietary rights of the Partnership, including
without limitation, all trademarks, trade names, patents, patent
applications, licenses thereof, trade secrets, technology, knowhow,
formulae, designs and drawings, computer software, slogans, copyrights,
processes, operating rights, other licenses and permits and other similar
intangible property and rights relating to the products or business of the
Partnership;
(h) all cash and cash equivalents and investments, whether short-term
or long-term, of the Partnership, including without limitation,
certificates of deposit, treasure bills and securities;
(i) all prepaid and deferred items of the Partnership, including
without limitation, prepaid rentals, insurance, taxes and unbilled charges
and deposits relating to the operations of the Partnership; and
(j) all right, title and interest of the Partnership in and to any
other intangible property of the Partnership.
1.3 Excluded Assets. The Contributed Assets shall exclude the following
assets of the Partnership: (i) the Exchange Rights (as defined in Section
1.8(i)) and the Panthers Warrants (as defined in Section 1.8(j)), and the Fee
Shares (as defined in Section 1.8(i)) and the rights of the Partnership under
this Agreement; (ii) the minute books and partnership interest transfer records
of the Partnership; and (iii) those assets set forth on Exhibit "A" attached
hereto ("Sold Assets"), which shall be sold by the Partnership to Panthers, or
its designee, at closing in consideration of the Exchange Rights and the
Panthers Warrants and the Fee Shares.
1.4 Assignment of Contracts. Notwithstanding anything in this Agreement to
the contrary, this Agreement shall not constitute an assignment of any claim,
contract, license, franchise, lease, commitment, sales contract, supply
contract, service agreement or purchase commitment if an attempted assignment
thereof without the consent of a third party thereto would constitute a breach
thereof or in any way adversely affect the rights of Panthers BRHC Limited
thereunder. If such consent is not obtained, or if any attempt at an assignment
thereof would be ineffective or would affect the rights of Panthers BRHC Limited
thereunder so that Panthers BRHC Limited would not in fact receive all such
rights, the Partnership, the General Partner and BRMC shall cooperate, to the
best of their ability, but at the cost and expense of Panthers BRHC Limited
without reduction of the purchase price calculated under Section 1.8(i), with
Panthers BRHC Limited to the extent necessary to provide for Panthers BRHC
Limited the benefits under such claim, contract, service agreement, purchase
order or purchase commitment, including enforcement for the benefit of Panthers
BRHC Limited of any and all rights of the Partnership against a third party
thereto arising out of the breach or cancellation by such third party or
otherwise. The provisions of this Section 1.4 shall not affect or modify any
other rights of Panthers BRHC Limited under this Agreement.
1.5 Panthers Contribution of Assets. At or prior to the Closing, Panthers,
or its designees, shall contribute or cause to be contributed to Panthers BRMC
Limited ((a), (b) and (c) below being referred to as the "Panthers Capital
Contribution"):
(a) Cash in an amount sufficient to pay off in full at the Closing
Date the obligations of the Partnership set forth on Schedule 1.5 attached
hereto;
(b) At the written election of BRMC, which shall be delivered within
five (5) days prior to the Closing Date, cash or 141,232 shares (adjusted,
as appropriate, for any stock split, reverse stock split, stock dividend or
"Special Transaction" generally in accordance with the provisions of
Exhibit "B"
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attached hereto) of the Class A common stock of Panthers, par value $.01
per share ("Panthers Common Stock") to satisfy the $3.725 million
Partnership's deferred fee obligations to BRMC; and
(c) The Sold Assets, which the parties agree will have a value of $30
million.
That portion of the Panthers Capital Contribution described in clause (a)
shall be determined with reference to the payoff letters required by Section
5.17 hereof. For purposes of Panthers BRHC Limited's partnership agreement, the
Panthers Capital Contribution shall also include: (i) the aggregate value of any
Panthers Common Stock issued upon exercise of any options granted to those
persons referred to in Section 6.8 hereof; (ii) any cash contributed to pay off
the $110 Million Senior Facility under the Loan Agreement ("Senior Facility"),
when and if permitted hereunder and under Panthers BRHC Limited's partnership
agreement; (iii) any additional cash contributed by Panthers to Panthers BRHC
Limited to pay transaction costs and expenses under Section 5.20 hereof, and
(iv) any other non-reimbursable expenses of Panthers BRHC Limited paid by
Panthers and additional cash contributed to the equity of Panthers BRHC Limited.
1.6 Assumed Liabilities. Panthers BRHC Limited shall at the Closing assume
and agree to pay, discharge, and perform when lawfully required all of the
obligations, duties and liabilities of the Partnership whether absolute or
contingent, known or unknown. The obligations, duties and liabilities assumed by
Panthers BRHC Limited pursuant to this Section 1.6 shall be referred to as the
"Assumed Liabilities."
1.7 No Expansion of Third Party Rights. The assumption by Panthers BRHC
Limited of the Assumed Liabilities, the transfer thereof by the Partnership, and
the limitations of such transfer shall in no way expand the rights or remedies
of any third party against Panthers BRHC Limited or the Partnership as compared
to the rights and remedies which such third party would have against the
Partnership had Panthers BRHC Limited not assumed such liabilities. Without
limiting the generality of the preceding sentence, the assumption by Panthers
BRHC Limited of the Assumed Liabilities shall not create any third party
beneficiary rights.
1.8 Procedure at the Closing. At the Closing, the parties agree that the
following shall occur:
(a) Panthers (or its designee) and the Partnership shall enter into a
partnership agreement for Panthers BRHC Limited, the form of which shall be
agreed upon no later than thirty (30) days from the date of this Agreement;
provided however, that such agreement shall provide that:
(i) Affiliates of Panthers will be the managing General Partner of
Panthers BRHC Limited and the holder of a limited partnership interest
therein (the "Panther Interest");
(ii) The Partnership shall acquire a non-managing general
partnership interest ("Boca LP Interest") in exchange for the
Contributed Assets;
(iii) Cash from operations determined by the managing general
partner to be available for distribution will be distributed (x) first
to the holders of the Panther Interest in payment of a profit share
equal to 15% per annum, cumulative and compounded, on the "Base Amount,"
which shall equal the Panthers Capital Contributions, and (y) next in
proportion to each of the partner's percentage interests in Panthers
BRHC Limited (the "Contribution Ratio"); provided, however, that if any
taxable income is allocated to the Partnership, cash equal to 40% of
such taxable income will be distributed to the Partnership; the initial
Contribution Ratio for the holders of the Panther Interest for the first
fiscal year ending after the Closing Date, expressed as a percentage,
will be determined by dividing (A) by (B). (A) equals the Capital
Contributions made by holders of the Panther Interest, which for the
first fiscal year will be determined as of forty-five days after the
Closing Date. (B) equals the sum of (A) plus the initial capital account
credit of the Partnership, which shall equal the dollar amount specified
in Section 1.8(i), less the value of the Sold Assets. The Contribution
Ratio shall be re-determined when Panthers or the Partnership contribute
additional capital to Panthers BRHC Limited. In such case (A) will equal
the Capital Contributions made by the holders of the Panther Interest as
of the end of the preceding fiscal year.
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(B) will equal the sum of (x)(A), (y) the initial capital account credit
of the Partnership and (z) additional capital, if any, contributed to
the equity of Panthers BRHC Limited by the Partnership. In the case of
any capital transaction involving Panthers BRHC Limited, which for this
purpose shall include the transaction specified in Section 1.8(a)(viii),
the Contribution Ratio shall be redetermined as of the close of the
calendar month in which the closing date of the capital transaction
occurs;
(iv) Cash from any sale or refinancing or other capital
transactions determined by the managing general partner of Panthers BRHC
Limited to be available for distribution will be distributed (1) first
to the holders of the Panther Interest in payment of their unpaid profit
share on the Base Amount, (2) next to the holders of the Panther
Interest in repayment of their capital accounts, (3) next in payment of
the capital account of the Partnership and (4) next in accordance with
the Contribution Ratio;
(v) Taxable income and loss will generally be allocated in
accordance with the Contribution Ratio except that the Panther Interest
will be specially allocated a profit share on the Base Amount;
(vi) The Partnership will have no voting rights under the limited
partnership agreement, except that for so long as Persons other than
Panthers (or its designees) own more than 51% of the limited partnership
interests of the Partnership, the Partnership, after due and proper
notice, shall have the right: (1) to approve any amendment (unless such
amendment will not have a material adverse impact on the Partnership) to
the partnership agreement of Panthers BRHC Limited (the provisions of
Section 5.13 hereof will be included in the partnership agreement); (2)
to approve any sale of all or substantially all of the Contributed
Assets of Panthers BRHC Limited prior to January 1, 2001; provided
however, if prior to January 1, 2001, Panthers Common Stock closes at an
average price of $52.75 for five consecutive trading days on the NASDAQ
Stock Market, the Partnership shall have no right to approve any sale of
all or substantially all of the Contributed Assets; (3) to consult with
the managing general partner to develop an annual budget provided,
however, that the managing general partner will have the sole authority
to approve such budget; and (4) to consult with the managing general
partner regarding the renewal or termination of employment agreements
between Panthers BRHC Limited and Operating Management employees;
(vii) An affiliate of Panthers shall have the right to manage the
Owned Property for a management fee equal to 3% of the gross revenues of
Panthers BRHC Limited;
(viii) At any time on or after January 31, 2001, Panthers (or its
designee) shall have the right to acquire, for cash, all or a portion of
the partnership interests of the Partnership in Panthers BRHC Limited at
a price equal to the Fair Market Value of the partnership interest being
acquired. The Fair Market Value of a partnership interest shall be
calculated as set forth on Exhibit "C" attached hereto. The acquisition
shall be automatically effected by Panthers after thirty days prior
written notice to the Partnership;
(ix) For federal income tax purposes, the Partnership is subject to
Section 704(c) of the Internal Revenue Code of 1986, as amended (the
"Code"), with respect to its transfer of assets to Panthers BRHC
Limited. Panthers agree to cause Panthers BRHC Limited to elect the
remedial allocation method specified in Treasury Regulation Section
1.704-3(d). Panthers shall allocate the book value of the Contributed
Assets to each asset or class of assets provided such allocation does
not cause or create on the Closing Date income to the Partnership under
Sections 752 and 731 of the Code;
(x) At the option of Panthers, Panthers BRHC Limited shall make an
election under Section 754 of the Code. At the request of Panthers, the
Partnership shall make timely election under Section 754 of the Code for
the taxable year ending on the Closing Date, and any other taxable year
of the Partnership following its termination under Section 708(b)1)(B)
of the Code;
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(xi) The partnership agreement will allow the holders of the
Panther Interest to cause after January 31, 2001, a tax termination of
Panthers BRHC Limited under Section 708(b)(1)(B) even if such action
creates an adverse effect to the Partnership;
(xii) The general partnership interest of the Partnership in
Panthers BRHC Limited will not be transferable, other than to Panthers
and its Affiliates;
(xiii) Panthers may admit additional limited partners to Panthers
BRHC Limited in return for capital contributions and/or grant lenders
participation rights in the profits of Panthers BRHC Limited, subject to
Section 5.13 and provided that any dilution of partnership interests
resulting therefrom shall be proportionate between the Partnership and
the holders of the Panther Interests;
(xiv) The Panther Interest which is a limited partnership interest
in Panthers BRHC Limited may be transferred. The Panther Interest which
is a general partnership interest may be transferred to a Panthers
Affiliate, or to a non-Affiliate with the consent of the Partnership.
Any transfer causing a tax termination of Panthers BRHC Limited under
Section 708(b)(1)(B) of the Code on or before January 31, 2001, shall be
prohibited unless there are no material adverse tax consequences to the
Partnership or its partners;
(xv) Panthers, or its designee, may elect to borrow from Panthers
BRHC Limited, and upon such election Panthers BRHC Limited shall loan to
Panthers, or its designee, the proceeds of any financing or refinancing
of the Contributed Assets and Sold Assets ("Refinancing") on terms and
conditions equal to those of the Refinancing; and
(xvi) The partnership agreement will also contain other standard
terms, including customary indemnification provisions in favor of the
direct and indirect general partners of Panthers BRHC Limited and
payment by Panthers BRHC Limited to the Partnership of an administrative
fee to reimburse the Partnership for certain of its expenses.
(b) The Partnership shall have satisfied each of the conditions set
forth in Article VI and shall deliver to Panthers BRHC Limited the
documents, certificates, opinions, consents and letters required by Article
VI, unless waived by Panthers.
(c) Panthers and Panthers BRHC Limited shall have satisfied each of
the conditions set forth in Article VII and shall deliver to the
Partnership the documents, certificates, consents and letters required by
Article VII, unless waived by the Partnership.
(d) The Partnership shall deliver to the Panthers BRHC Limited such
warranty deeds, bills of sale, endorsements, assignments, releases and
other instruments and documents (including certificates and resolutions) in
such form as is reasonably satisfactory to Panthers BRHC Limited and as
shall be sufficient to vest in Panthers BRHC Limited (or its assignee) good
and marketable title to the Contributed Assets.
(e) Panthers BRHC Limited shall deliver to the Partnership
instruments, in such form as is reasonably satisfactory to the Partnership
and as shall be sufficient to effect the assumption by Panthers BRHC
Limited of the Assumed Liabilities.
(f) Panthers, Panthers BRHC Limited and the Partnership shall execute
and deliver a cross-receipt acknowledging receipt of the Contributed
Assets, the Sold Assets, the Exchange Rights (defined below), the Panthers
Warrants (defined below) and the Fee Shares (defined below).
(g) The Partnership shall deliver to Panthers BRHC Limited payoff and
estoppel letters in accordance with Section 5.17, and Panthers BRHC Limited
shall pay off in full the debt referred to in Schedule 1.5 hereof.
(h) The Partnership shall pay the expenses referred to in Section 5.20
out of a portion of the cash contributed under Section 1.5(a).
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(i) Partnership shall sell to Panthers (or its designee) the Sold
Assets set forth on Exhibit "A" in consideration of delivery of the
Exchange Rights and Warrants described below, as well as a number of Shares
of Panthers Common Stock (the "Fee Shares") necessary to satisfy the
Partnership's obligations to pay certain fees to (i) the holder of the
third mortgage on the Partnership's assets, (ii) Temple Development Company
and (iii) Operating Management, as shall be designated by the General
Partner prior to Closing. Panthers shall deliver an Exchange Agreement
("Exchange Agreement") to the Partnership, granting to the Partnership (or
to the Partnership's partners) rights ("Exchange Rights") to acquire, in
exchange for all of the partnership interests in the Partnership, an
aggregate number of shares (rounded to the nearest whole share) of Panthers
Common Stock (the "Panthers Shares" and each, a "Panthers Share")
determined by dividing (i) the difference between Three Hundred Twenty
Million Dollars ($320,000,000) minus (w) the value of the Fee Shares
(determined using the Price per Share), minus (x) the outstanding principal
balance, and any accrued and unpaid interest thereon that is past due as of
the Closing Date, under the $110 Million Senior Facility evidenced by the
Loan Agreement, minus (y) the amount of cash contributed under Section
1.5(a) (other than the amount contributed to cover expenses as set forth in
Schedule 1.5, subsection (vii) and Schedule 5.20), minus (z) Three Million
Seven Hundred Twenty-Five Thousand Dollars; by (ii) $26.375 (the "Price per
Share"). In no case shall the number of Fee Shares and the number of
Panthers Shares underlying the Exchange Rights exceed that number of shares
determined in the preceding sentence without regard to clause (w). The
number of Panthers Shares shall be reserved by Panthers for issuance under
the Exchange Agreement and shall be subject to the anti-dilution provisions
set forth on Exhibit "B" attached hereto. The Exchange Agreement shall
provide: (a) for the mechanics of the exchange; (b) that in the event the
sale of all or substantially all of the Contributed Assets is consummated
prior to exercise of any Exchange Rights, upon notice to the holders of the
Exchange Rights, the Exchange Rights shall expire; (c) that Exchange Rights
to acquire an amount of Panthers Common Stock with a fair market value at
Closing equal to Two Million Five Hundred Thousand Dollars ($2,500,000) (as
determined pursuant to Section 9.3(d) below) shall be held back ("Held Back
Interests") subject to the provisions of Article IX hereof; (d) after due
and proper notice that any partnership interest in the Partnership so
exchanged shall be transferred to a designee of Panthers; and (e) that,
after due and proper notice, the Exchange Rights shall expire at January
31, 2001.
(j) Panthers shall deliver to the Partnership, registered in the name
of the holders specified by the Partnership in writing not less than five
(5) business days prior to Closing, an aggregate number of warrants to
acquire a number of shares of Panthers Common Stock equal to twenty (20%)
percent of the number of Fee Shares and the number of Panthers Shares
issued pursuant to the second sentence of Section 1.8(i) above ("Panthers
Warrants"). The Panthers Warrants shall be exercisable at a price of $29.01
per share. Fifty (50%) percent of the Panthers Warrants shall expire on
December 31, 1998 and the remaining fifty (50%) percent of the Panthers
Warrants shall expire on December 31, 1999. The number of Panthers Warrants
shall be subject to the anti-dilution provisions set forth in Exhibit "B"
attached hereto.
1.9 Filing of Documents. At the time of the Closing, the parties shall
cause to be filed with the Secretary of State of the State of Florida any
documents that Panthers or Panthers BRHC Limited determines to be required to
lawfully effect the purposes of this Agreement.
1.10 Tax Treatment. The parties hereto acknowledge and agree that the
receipt of the non-managing general partnership interest in Panthers BRHC
Limited by the Partnership contemplated hereby is intended to be a tax-free
transaction under Section 721 of the Code.
1.11 Option to Acquire General Partner's Interest in the Partnership. The
General Partner does hereby grant to Panthers the option to acquire, directly or
through its designee and exercisable upon the earlier of January 15, 2001 or at
such time as all of the Exchange Rights have been exercised, its general
partnership interest in the Partnership for $1.00 ("Option"). The Option shall
not expire unless waived in writing by Panthers. The General Partner shall
transfer its general partnership interest to Panthers' designee within five days
after Panthers' written notice to General Partner that it is electing to
exercise the Option.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF PANTHERS
As a material inducement to the Partnership to enter into this Agreement
and to consummate the transactions contemplated hereby, Panthers and Panthers
BRHC Limited make the following representations and warranties to the
Partnership:
2.1 Corporate Status. Panthers is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida. Panthers
has the requisite power and authority to carry on its business and to own or
lease its properties. Panthers BRHC Limited is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Florida. Panthers BRHC Limited has the requisite power and authority to carry on
its business and to own or lease its properties.
2.2 Corporate Power and Authority. Panthers and Panthers BRHC Limited each
have the power and authority to execute and deliver this Agreement, to perform
their respective obligations hereunder and to consummate the transactions
contemplated hereby. Other than Panthers obtaining shareholder approval, each of
Panthers and Panthers BRHC Limited have taken all action necessary to authorize
its execution and delivery of this Agreement, and the performance of their
respective obligations hereunder and the consummation of the transactions
contemplated hereby.
2.3 Enforceability. This Agreement has been duly executed and delivered by
Panthers and Panthers BRHC Limited and constitutes a legal, valid and binding
obligation of each of them, enforceable against each of them in accordance with
its terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and general equitable principles regardless of
whether such enforceability is considered in a proceeding at law or in equity.
2.4 Exchanged Securities. Upon consummation of the transactions
contemplated hereunder, the Panthers Warrants will be validly issued. Upon
exercise of any Exchange Rights under the Exchange Agreement for Panthers
Shares, and the issuance and delivery of certificates representing the Panthers
Shares to the holders of the Exchange Rights, the Panthers Shares will be
validly issued, fully paid and non-assessable shares of Panthers Common Stock.
Upon exercise of the Panthers Warrants, and payment of the exercise price with
respect thereto, the shares of Panthers Common Stock issued thereunder will be
validly issued, fully paid and non-assessable.
2.5 No Commissions. Panthers has not incurred any obligation for any
finder's or broker's or agent's fees or commissions or similar compensation in
connection with the transactions contemplated hereby.
2.6 No Violation. The execution and delivery of this Agreement by Panthers
and Panthers BRHC Limited and the performance by them of their respective
obligations hereunder and the consummation by them of the transactions
contemplated by this Agreement will not: (a) contravene any provision of the
articles of incorporation or bylaws of Panthers or the Partnership Agreement or
Certificate of Limited Partnership of Panthers BRHC Limited; (b) violate or
conflict with any law, statute, ordinance, rule, regulation, decree, writ,
injunction, judgment or order of any Governmental Authority or of any
arbitration award which is either applicable to, binding upon or enforceable
against Panthers or Panthers BRHC Limited; (c) conflict with, result in any
breach of, or constitute a default (or an event which would, with the passage of
time or the giving of notice or both, constitute a default) under, or give rise
to a right to terminate, amend, modify, abandon or accelerate, any Contract
which is applicable to, binding upon or enforceable against Panthers or Panthers
BRHC Limited; (d) result in or require the creation or imposition of any Lien
upon or with respect to any of the property or assets of Panthers or Panthers
BRHC Limited; or (e) require the consent, approval, authorization or permit of,
or filing with or notification to, any Governmental Authority, any court or
tribunal or any other Person, except any applicable filings required under the
HSR Act, any SEC filings required to be made by Panthers, any SEC and state
filings contemplated hereby, and any filings required to be made in connection
with the transfer of the licenses and permits contemplated hereunder as part of
the Contributed Assets and the Sold Assets.
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2.7 SEC Filings. From November 8, 1996 through the date hereof, Panthers
has duly and timely filed with the SEC all reports, proxy statements and other
information required to be filed by it under the Exchange Act (the "SEC
Filings"). The SEC Filings, at the time of filing did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading. Except as
disclosed in the SEC Filings, since November 8, 1996 to the date hereof, there
has not been any Material Adverse Change in the business, financial position or
results of operations of Panthers. The Registration Statement and Prospectus to
be filed pursuant to Article VIII hereof at the time of filing will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
2.8 Capitalization. As of the date hereof, the authorized capital stock of
Panthers consists of 100,000,000 shares of Panthers Common Stock (which number
includes 2,600,000 shares of Panthers Common Stock reserved for issuance under
the Panthers' 1996 Stock Option Plan) and 10,000,000 shares of Class B common
stock, par value $.01 per share. Panthers has no shares of preferred stock
authorized. As of March 4, 1997: (a) 23,648,444 shares of Panthers Common Stock,
which number does not include 920,440 shares of Panthers Common Stock which are
subject to granted but currently unexercisable options, were validly issued and
outstanding, fully paid and nonassessable, and (b) 255,000 shares of Panthers
Class B Common Stock were validly issued and outstanding, fully paid and
nonassessable. As of the Closing Date, the number of shares of Panthers Common
Stock equal to the aggregate number of shares of Panthers Common Stock
underlying the Exchange Rights and the Panthers Warrants will be reserved for
issuance upon exercise of the Exchange Rights and upon exercise of the Panthers
Warrants.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE
PARTNERSHIP, THE GENERAL PARTNER AND BRMC
As a material inducement to Panthers and to Panthers BRHC Limited to enter
into this Agreement and to consummate the transactions contemplated hereby, the
Partnership, the General Partner and BRMC make the following representations and
warranties to the Panthers and Panthers BRHC Limited:
3.1 Partnership's Organization. (i) The Partnership is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Florida, and (ii) the character of the properties owned or
leased by Partnership and the nature of Partnership's business do not require it
to be qualified and in good standing in any other state.
3.2 General Partner's and BRMC's Organization. General Partner is a
limited partnership, duly organized, validly existing and in good standing under
the laws of the State of Delaware and is qualified to do business under the laws
of the State of Florida. BRMC is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware and is qualified to
do business under the laws of the State of Florida. General Partner is the sole
general partner of Partnership and BRMC is the sole general partner of General
Partner.
3.3 Subsidiaries. Except as set forth on Schedule 3.3 hereof, the
Partnership does not own, directly or indirectly, any outstanding voting
securities of or other interests in, or control, any other corporation,
partnership, joint venture or other business entity.
3.4 Power and Authority. The Partnership has partnership power and
authority, as applicable, to: (i) to conduct its business as now conducted; (ii)
execute and deliver this Agreement, and (iii) subject to obtaining appropriate
limited partner consents required by its partnership agreement, close the
transactions contemplated by this Agreement. Each of the General Partner and
BRMC has full partnership or corporate power and authority to authorize and
consent to the execution and delivery by the Partnership of this Agreement, and,
subject to obtaining appropriate consents of the limited partners of the
Partnership and the General Partner, if any, the performance by Partnership of
its obligations hereunder. All of the consents of the general
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partner of each of the Partnership and the General Partner, and of the Board of
Directors of BRMC, required, if any, in connection with the execution, delivery
and performance of this Agreement have been obtained.
3.5 Due Execution/Enforceability. This Agreement has been duly executed
and delivered by Partnership, and assuming due authorization, execution and
delivery by Panthers and Panthers BRHC Limited, constitutes the legal, valid and
binding obligations of Partnership, enforceable against it in accordance with
the terms hereof and thereof, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
3.6 Litigation. Except as set forth on Schedule 3.6 hereof, there is no
action, suit or proceeding pending or, to the knowledge of any of the
Partnership, the General Partner and BRMC, threatened against or affecting any
of them that is not covered by insurance or, that if adversely determined would
materially affect the assets, business or operations of the Partnership or would
materially impair the ability of any of the Partnership, the General Partner or
BRMC to perform any of such entity's obligations under this Agreement.
3.7 Conflict. Except as set forth on Schedule 3.7, neither the execution
nor the delivery of this Agreement nor the performance by the Partnership, the
General Partner and BRMC of any of the provisions hereof, will conflict with or
result in a breach of any of the provisions of the Partnership's, the General
Partner's or BRMC's governing documentation, any applicable Legal Requirements,
or any Designated Contract (as defined in Section 3.23 hereof), or constitute a
default under any of the foregoing or result in the creation or imposition of
any lien, charge or encumbrance upon any property of such entity, or on all or a
portion of the Contributed Assets (including the Owned Property) or the Sold
Assets.
3.8 Governmental Consent. No consent, approval or other authorization of
or by any Governmental Authority is required in connection with the execution or
delivery by the Partnership, the General Partner or BRMC of this Agreement or
compliance by them with any of the provisions hereof, except with respect to the
transfer of the Permits (defined in Section 3.19) and except HSR or SEC filings
required by law, if any.
3.9 Financial Statements. Each of Partnership's 1995 audited, and
December, 1996 audited Financial Reports previously delivered to Panthers (i) in
the case of the accrual statement, has been audited by a certified public
accounting firm, which has issued its report thereon, (ii) is true and correct
in all material respects on and as of the dates and periods covered by such
statements and (iii) was prepared in accordance with GAAP. No event or
circumstance since the dates of such statements makes any of them untrue or
misleading in any material adverse manner. The balance sheet of the Partnership,
dated as of December 31, 1996, is referred to herein as the "Current Balance
Sheet." Partnership has delivered to Panthers a true and correct copy of its
1997 Budget as it relates to capital expenditures, repairs and maintenance, and
to furniture, fixtures and equipment, which was prepared in the ordinary course
of business and was approved by the General Partner, and which is subject to
adjustment from time to time.
3.10 Liabilities of the Partnership. (a) The Partnership does not have any
liabilities or obligations, whether accrued, absolute, contingent or otherwise,
except (i) to the extent reflected or taken into account in its Current Balance
Sheet and not heretofore paid or discharged, (ii) to the extent specifically set
forth in or incorporated by express reference in any of the Schedules attached
hereto, (iii) liabilities incurred in the ordinary course of business consistent
with past practice since the date of its Current Balance Sheet (none of which
relates to breach of contract, breach of warranty, tort, infringement or
violation of law, or which arose out of any action, suit, claim, governmental
investigation or arbitration proceeding), (iv) normal accruals,
reclassifications, and audit adjustments which would be reflected on an audited
financial statement and which would not be material in the aggregate, and (v)
liabilities incurred in the ordinary course of business prior to the date of its
Current Balance Sheet which, in accordance with GAAP consistently applied, were
not recorded thereon.
(b) The Partnership's Net Working Capital (defined below) minus the
Partnership's closing costs and expenses set forth in Section 5.20 hereof, shall
be $1.00 or more as of the last day of the month immediately preceding the
Closing Date (with the current portion of the Premier Club Accounts Receivable
being that amount due prior to the Settlement Date (defined in Section 9.2
hereof)) . The Partnership's "Net Working
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Xxxxxxx" as of December 31, 1996 is set forth on Schedule 3.10 hereof, and shall
be recalculated by the Partnership for purposes of Closing in a manner
consistent with Schedule 3.10 as of the end of the calendar month immediately
preceding the Closing Date, and such recalculation shall be deemed a Schedule
attached to this Agreement ("Closing Net Working Capital Statement").
3.11 Real Estate. (a) The Partnership does not own any real property or
any interest therein except as set forth on Schedule 3.11(a) (the "Owned
Property"), which Schedule sets forth the location and principal improvements
and buildings on ("Improvements") the Owned Property, together with a list of
all title insurance policies relating to such properties, all of which policies
have previously been delivered or made available to Panthers by the Partnership.
(i) Partnership holds good, indefeasible and marketable fee simple
title to the Land and existing Improvements, free and clear of all
mortgages, deeds of trust, liens, encumbrances, ground rents, leases,
tenancies, licenses, contracts of sale, options, security interests,
covenants, conditions, restrictions, rights of way, easements,
encroachments and any other matters affecting title except the Permitted
Exceptions (set forth on Schedule 3.11(b));
(ii) The completion of the Expansion Plan and the use of the Expansion
Plan improvements will not violate any Permitted Exception;
(iii) To the best of each of the Partnership's, the General Partner's
and BRMC's knowledge, no Improvements upon the Owned Property encroaches
upon any adjacent property building line, setback line, side yard line, or
any recorded or visible easement (or other easement of which they are aware
or have reason to believe may exist) with respect to the Owned Property,
except insofar as the same may be a Permitted Exception or as disclosed on
the Survey; and
(iv) The Owned Property is taxed separately without regard to any
other property and has been subdivided from all other property in
compliance with applicable laws.
3.12 Condemnation. There is no pending condemnation, expropriation,
eminent domain or similar proceeding affecting the Owned Property or any portion
thereof, and Partnership has no knowledge and has not received any written or
oral notice that any such proceeding is contemplated.
3.13 No Management Agreement. There is no management agreement affecting
the Owned Property (other than with respect to Partnership's obligations to pay
General Partner the Supervisory Fee pursuant to the Partnership Agreement).
3.14 Ownership of Contributed Assets. Except as otherwise disclosed on
Schedule 3.14, the Partnership is the owner of all of its Contributed Assets and
Sold Assets, which Contributed Assets and Sold Assets are free and clear of any
Liens, other than as set forth on Schedule 3.11 or 3.14.
3.15 Compliance with Laws. (a) Partnership has complied in all material
respects with all Legal Requirements and all recorded instruments affecting the
Property. The use of the Owned Property complies, and after substantial
completion of the Expansion Plan, shall continue to comply in all material
respects, with all zoning and use-related Legal Requirements.
(b) The Partnership is and at all times has been in compliance in all
material respects with the terms and provisions of the Immigration Reform and
Control Act of 1986, as amended (the "Immigration Act"). With respect to each
Employee (as defined in 8 C.F.R. 274a.1(f)) of the Partnership for whom
compliance with the Immigration Act is required, the Partnership has on file a
true, accurate and complete copy of (i) each Employee's Form I-9 (Employment
Eligibility Verification Form) and (ii) all other records, documents or other
papers prepared, procured and/or retained by the Partnership pursuant to the
Immigration Act. The Partnership has not been cited, fined, served with a Notice
of Intent to Fine or, to the knowledge of the Partnership, the General Partner
or BRMC, with a Cease and Desist Order, nor has any action or administrative
proceeding been initiated or threatened against the Partnership, by the
Immigration and Naturalization Service by reason of any actual or alleged
failure to comply with the Immigration Act.
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(c) The Partnership is not subject to any Contract, decree or injunction in
which the Partnership is a party which restricts the continued operation of any
business of the Partnership or the expansion thereof to other geographical
areas, customers and suppliers or lines of business.
3.16 Labor and Employment Matters. The Partnership is not a party to or
bound by any collective bargaining agreement or any other agreement with a labor
union, and there has been no effort by any labor union during the 24 months
prior to the date hereof to organize any Employees of the Partnership into one
or more collective bargaining units. There is no pending or, to the knowledge of
the Partnership, the General Partner or BRMC, threatened labor dispute, strike
or work stoppage which affects or which may affect the business of the
Partnership or which may interfere with its continued operations. Neither the
Partnership nor, to the knowledge of the Partnership, any agent, representative
or Employee thereof has within the last 24 months committed any unfair labor
practice as defined in the National Labor Relations Act, as amended, and there
is no pending or threatened charge or complaint against the Partnership by or
with the National Labor Relations Board or any representative thereof. There has
been no strike, walkout or work stoppage involving any of the Employees of the
Partnership during the 24 months prior to the date hereof. The Partnership is
not aware that any key Employee or group of Employees has any plans to terminate
his, her or their employment with the Partnership as a result of the
transactions contemplated hereunder or otherwise. Schedule 3.16 lists each
contract, agreement or plan of the following nature, whether formal or informal,
and whether or not in writing, to which the Partnership is a party or under
which it has an obligation: (i) employment agreements, (ii) employee handbooks,
policy statements and similar plans, (iii) noncompetition agreements and (iv)
consulting agreements (true and correct copies of which the Partnership has
provided to the Panthers). The Partnership has complied with applicable laws,
rules and regulations relating to employment, civil rights and equal employment
opportunities, including but not limited to, the Civil Rights Act of 1964, the
Fair Labor Standards Act, and the Americans with Disabilities Act, as amended.
3.17 ERISA. Neither Partnership nor any member of a Controlled Group of
which Partnership is a member maintains any Plan for the benefit of employees of
Partnership and neither Partnership nor any member of such Controlled Group is
obligated to make contributions in respect of any such Plan.
3.18 Tax Matters. All federal, state and other tax returns and reports of
each of the Partnership, the General Partner and BRMC required to be filed have
been duly filed, and all federal, state and other taxes, assessments (including
assessments for municipal improvements), fees or other governmental charges
imposed upon the Partnership, the General Partner, BRMC, and the Contributed
Assets which are due and payable have been paid (other than with respect to the
State of Florida Department of Revenue sales tax audit). Partnership knows of no
proposed material tax or other assessments against Partnership, the Owned
Property or any of the improvements thereon, and no extension of time for
assessment or payment of any federal state or local tax requested by Partnership
is in effect.
3.19 Licenses and Permits. All licenses and governmental or official
approvals, permits or authorizations (collectively, the "Permits") issued to the
Partnership are listed on Schedule 3.19. All such Permits are valid and in full
force and effect, the Partnership is in compliance in all material respects with
the respective requirements thereof, and no governmental proceeding is pending
or, to the knowledge of the Partnership, the General Partner or BRMC, threatened
to revoke or amend any of them.
3.20 Insurance. A list of the insurance policies maintained by the
Partnership is set forth on Schedule 3.20 hereto. Such policies are in full
force and effect, all premiums due and payable therefor have been paid in full,
and true and correct copies thereof have been delivered to Panthers.
3.21 Adequacy of the Assets; Relationships with Customers and Suppliers;
Affiliated Transactions. The Contributed Assets and Sold Assets constitute, in
the aggregate, all of the assets and properties necessary for the conduct of the
business of the Partnership in the manner in which and to the extent to which
such business is currently being conducted. No current supplier to the
Partnership of items essential to the conduct of its business will or has
threatened to terminate its business relationship with it for any reason.
Neither the Partnership nor the General Partner nor BRMC has any direct or
indirect interest in any customer, supplier or competitor or in any person from
whom or to whom the Partnership leases real or personal property. Other
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than as specified in the partnership agreement of the Partnership, and other
than the Temple Agreement, neither the General Partner nor any Affiliate thereof
is a party to any Contract or transaction with the Partnership or has any
interest in any property used by the Partnership.
3.22 Intellectual Property. All trademarks, service marks, trade names,
copyrights, patents, licenses (including licenses for the use of computer
software programs) and other intellectual property used in the conduct of the
Partnership's business (the "Intellectual Property") are listed on Schedule 3.22
hereof. The Partnership is the owner of the Intellectual Property, except as set
forth on Schedule 3.22 hereof. The conduct of the business of the Partnership as
presently conducted does not infringe or misappropriate any rights held or
asserted by any Person with respect to, and no Person is infringing on, the
Intellectual Property. Except as set forth on Schedule 3.22, no payments are
required for the continued use of the Intellectual Property.
3.23 Contracts. As of the date of this Agreement, Schedule 3.23 sets forth
a list of each Designated Contract (defined below) to which the Partnership is a
party or by which it or its properties and assets are bound, copies of which
have been provided to Panthers. The copy of each Designated Contract furnished
to Panthers is a true and complete copy of the document it purports to represent
and reflects all amendments thereto made through the date of this Agreement. The
Partnership has not violated any of the material terms or conditions of any
Designated Contract or any term or condition which would permit termination or
material modification of any Designated Contract, and, to the knowledge of the
Partnership, the General Partner and BRMC, all of the covenants to be performed
by any other party thereto as of the date hereof have been fully performed and
there are no claims for breach or indemnification or notice of default or
termination under any Designated Contract. No event has occurred which
constitutes, or after notice or the passage of time, or both, would constitute,
a material default by the Partnership under any Designated Contract, and, to the
knowledge of the Partnership, the General Partner and BRMC, no such event has
occurred which constitutes or would constitute a material default by any other
party. The Partnership is not subject to any liability or payment resulting from
renegotiation of amounts payable by it under any Designated Contract. The term
Designated Contract shall mean: (a) loan agreements, indentures, mortgages,
pledges, hypothecations, deeds of trust, conditional sale or title retention
agreements, security agreements, equipment financing obligations or guaranties,
or other sources of contingent liability in respect of any indebtedness or
obligations to any other Person, or letters of intent or commitment letters with
respect to same; (b) contracts obligating the Partnership to provide products or
services for a period of one year or more and, irrespective of the term of the
Contract, requiring the Partnership to make payments of cash or property
totalling $100,000 or more; (c) leases of real property, and leases of personal
property not cancelable without penalty on notice of sixty (60) days or less or
calling for payment of an annual gross rental exceeding Ten Thousand Dollars
($10,000.00); (d) distribution, sales agency or franchise or similar agreements,
or agreements providing for an independent contractor's services, or letters of
intent with respect to same; (e) employment agreements, management service
agreements, consulting agreements, confidentiality agreements, non-competition
agreements and any other agreements relating to any employee, officer or
director of the Partnership; (f) licenses, assignments or transfers of
trademarks, trade names, service marks, patents, copyrights, trade secrets or
know how, or other agreements regarding proprietary rights or intellectual
property; (g) any Contract relating to pending capital expenditures by the
Partnership; and (h) other material Contracts or understandings, irrespective of
subject matter and whether or not in writing, not entered into in the ordinary
course of business by the Partnership and not otherwise disclosed on the
Schedules.
3.24 Access to Information. Each of the Partnership, the General Partner
and BRMC has had the opportunity to discuss the transactions contemplated hereby
with Panthers and Panthers BRMC Limited Partnership and has had the opportunity
to obtain such information pertaining to Panthers as has been requested,
including but not limited to filings made by Panthers with the SEC under the
Exchange Act.
3.25 Bank Accounts; Business Locations. Schedule 3.25 sets forth all
accounts of the Partnership with any bank, broker or other depository
institution, and the names of all persons authorized to withdraw funds from each
such account.
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3.26 Names. All names under which the Partnership does business as of the
date hereof are specified on Schedule 3.26. The Partnership has not changed its
name or used any assumed or fictitious name within the past three years.
3.27 No Commissions. The Partnership has not incurred any obligation for
any finder's or broker's or agent's fees or commissions or similar compensation
in connection with the transactions contemplated hereby, other than the
financial advisor's fee owing by the Partnership to BT Securities Corporation,
which fees and commissions shall be paid by the Partnership.
3.28 Premier Club Notes. (i) All of the Premier Club Notes outstanding as
of December 31, 1996 appear on the list set forth on Schedule 3.28, (ii)
Partnership is the holder and beneficial owner of all of the Premier Club Notes
free and clear of any encumbrances except as in favor of the holders of the
first, second and third mortgages encumbering the Owner Property, (iii) as of
December 31, 1996, the remaining unpaid principal balance of each Premier Club
Note is as set forth on Schedule 3.28, (iv) except as set forth on Schedule
3.28, (A) no default exists under any of the Premier Club Notes, (B) all of the
Premier Club Notes remain in full force and effect and have not been amended and
(c) no obliger under any Premier Club Note has any defenses or rights of set-off
or abatement against such obligor's obligations under the applicable Premier
Club Note, and (v) as of the Closing Date, Partnership has delivered to Panthers
BRMC Limited the originals of all of the Premier Club Notes including any
amendments and modifications made thereto.
3.29 Premier Club Deposits. All of the Premier Club Deposits as of
December 31, 1996 are set forth on Schedule 3.29 and as of such date, except as
set forth on Schedule 3.29, no Premier Club member has notified Partnership of
the exercise of its right to a refund of any or all of any Premier Club Deposit.
3.30 Environmental Matters. (a) Except as disclosed in the Environmental
Report, (i) the Partnership has not conducted and shall not hereafter conduct
and (ii) to the best knowledge of the Partnership, no prior owner or current or
prior tenant or occupant of all or any portion of the Partnership has conducted
or is conducting, any Hazardous Substance Activity at, on or under the Owned
Property (A) in violation of Environmental Laws that would have a Material
Adverse Effect on the operation of the Owned Property or (B) in a manner
inconsistent with the use of the Owned Property as a first class resort hotel
complex, business conference center and resort membership club;
(b) Except as disclosed by the Environmental Report the Owned Property does
not contain asbestos or any Asbestos-Containing Material and there is no current
or potential contamination of the Owned Property by asbestos fiber; and
(c) The Partnership fully cooperated with Law Engineering and Environmental
Services, Inc. in the preparation of the Environmental Report and, to the best
of the Partnership's knowledge, such Environmental Report is not inaccurate in
any material respect.
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE CLOSING DATE
4.1 Conduct of Business by the Partnership Pending the Closing Date. The
Partnership covenants and agrees that, between the date of this Agreement and
the Closing Date, its business shall be conducted only in and it shall not take
any action except in, the ordinary course of business, consistent with past
practice. Completion of the Expansion Plan and completion of the sale of the
Xxxxxxxx Lots and corresponding renovation of the golf course shall be deemed to
be within the ordinary course of business. The Partnership shall use its best
efforts to preserve intact its business organization, to keep available the
services of its current officers, employees and consultants, and to preserve its
present relationships with customers, suppliers and other persons with which it
has significant business relations. By way of amplification and not limitation,
except as contemplated by this Agreement, the Partnership shall not, between the
date of this Agreement and
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the Closing Date, directly or indirectly, do or propose or agree to do any of
the following without the prior written consent of Panthers and Panthers BRHC
Limited:
(a) amend or otherwise change its certificate of limited partnership
or partnership agreement or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, encumber, or authorize the
issuance, sale, pledge, disposition, grant or encumbrance of (i) any
partnership interests of any class, or any options, warrants, convertible
securities or other rights of any kind to acquire any partnership interest,
or (ii) any of its assets, tangible or intangible, except in the ordinary
course of business consistent with past practice;
(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, property or otherwise, with respect to any
of its partnership interests;
(d) reclassify, combine, split, subdivide or redeem, purchase or
otherwise acquire, directly or indirectly, any of its partnership
interests;
(e) (i) acquire (including, without limitation, for cash or shares of
stock or partnership interests, by merger, consolidation, or acquisition of
stock, partnership interest or assets) any interest in any corporation,
partnership or other business organization or division thereof or any
assets, or make any investment either by purchase of stock, partnership
interest or other securities, contributions of capital or property
transfer, or, except in the ordinary course of business, consistent with
past practice, purchase any property or assets of any other Person, (ii)
incur any indebtedness for borrowed money or issue any debt securities or
assume, guarantee or endorse or otherwise as an accommodation become
responsible for, the obligations of any Person, or make any loans or
advances, or (iii) enter into any Contract other than in the ordinary
course of business, consistent with past practice;
(f) except in the ordinary course of business consistent with past
practice, increase the compensation payable or to become payable to its
officers or employees, or, except as presently bound to do, grant any
severance or termination pay to, or enter into any employment or severance
agreement with, any of its directors, officers or other employees, or
establish, adopt, enter into or amend or take any action to accelerate any
rights or benefits which any collective bargaining, bonus, profit sharing,
trust, compensation, stock option, restricted stock, pension, retirement,
deferred compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any
directors, officers or employees;
(g) take any action other than in the ordinary course of business and
in a manner consistent with past practice with respect to accounting
policies or procedures;
(h) pay, discharge or satisfy any existing claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction in the
ordinary course of business and consistent with past practice of due and
payable liabilities reflected or reserved against in its financial
statements, as appropriate, or liabilities incurred after the date hereof
in the ordinary course of business and consistent with past practice; or
(i) agree, in writing or otherwise, to take or authorize any of the
foregoing actions or any action which would make any representation or
warranty in Article III untrue or incorrect.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Further Assurances. Each party shall execute and deliver, to the
extent permitted by its respective governance agreements, such additional
instruments and other documents and shall take such further actions as may be
necessary or appropriate to effectuate, carry out and comply with all of the
terms of this Agreement and the transactions contemplated hereby.
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5.2 General Partner Obligations. The General Partner, as soon as
practically possible, shall send the consent solicitation required under the
Partnership's certificate of limited partnership and partnership agreement to
the limited partners of the Partnership and, subject to Section 5.4 below,
recommend and otherwise use its reasonable best efforts to facilitate the
Closing of the transaction contemplated hereby, unless the Termination Fee
becomes payable to Panthers under Section 5.12 hereof.
5.3 Cooperation. Each of the parties agrees to cooperate with the other
parties in the preparation and filing of all forms, notifications, reports and
information, if any, required or reasonably deemed advisable pursuant to any
law, rule or regulation or the rules of any exchange on which the Panthers
Common Stock is listed or the Nasdaq Stock Market in connection with the
transactions contemplated by this Agreement and to use its respective best
efforts to agree jointly on a method to overcome any objections by any
Governmental Authority to any such transactions.
5.4 HSR Act and Other Actions. Each of the parties hereto shall (i) make
promptly (and in no event later than ten (10) business days following the
attachment of all Schedules and Exhibits hereto) its respective filings, if any,
and thereafter make any other required submissions, under the HSR Act, with
respect to the transactions contemplated hereby, and (ii) use its reasonable
best efforts to take, or cause to be taken, all appropriate actions, and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated herein, including, without limitation, using its best efforts to
obtain all licenses, permits, consents, approvals, authorizations,
qualifications and orders of any Governmental Authority and parties to Contracts
with the Partnership and limited partners of the Partnership as are necessary
for the consummation of the transactions contemplated hereby. Each of the
parties shall make on a prompt and timely basis all governmental or regulatory
notifications and filings (including Panthers making all SEC filings necessary
to solicit shareholder consent to the transactions contemplated hereby and using
good faith efforts to obtain SEC approval of such filings) required to be made
by it for the consummation of the transactions contemplated hereby. The parties
also agree to use best efforts to defend all lawsuits or other legal proceedings
challenging this Agreement or the consummation of the transactions contemplated
hereby and to lift or rescind any injunction or restraining order or other order
adversely affecting the ability of the parties to consummate the transactions
contemplated hereby. If, on the date the General Partner mails its consent
solicitation to the limited partners of the Partnership, BT Securities
Corporation determines that it can not bring forward to a current date the
fairness opinion previously delivered to the General Partner on or about the
date hereof, the General Partner shall so advise the limited partners and shall
have no obligation to recommend the transaction contemplated hereby, but shall
also not recommend against the transaction contemplated hereby except as
required by law.
5.5 Access to Information. From the date hereof to the Closing Date, the
Partnership, the General Partner and BRMC shall (and shall cause its directors,
officers, employees, auditors, counsel and agents) afford Panthers and Panthers'
officers, employees, auditors, counsel and agents reasonable access on
reasonable notice at all reasonable times to its properties, offices, and other
facilities, to its officers and employees and to all books and records, and
shall furnish such persons with all financial, operating and other data and
information as may be requested. No information provided to or obtained by
Panthers shall affect any representation or warranty in this Agreement.
5.6 Notification of Certain Matters; Exhibits and Schedules. (a) The
Partnership, the General Partner and BRMC shall give prompt written notice to
Panthers of the occurrence or non-occurrence of any event which would likely
cause any representation or warranty contained herein (including with respect to
any Schedules attached hereto), to be untrue or inaccurate, or any covenant,
condition, or agreement contained herein not to be complied with or satisfied
and the occurrence or non-occurrence of which would be a Material Adverse Change
with respect to the Partnership. Upon receipt by Panthers of notice of any
Material Adverse Change, Panthers shall have ten (10) business days to terminate
this Agreement, and the parties shall thereafter have no further liability to
the other in respect of this Agreement.
(b) In the event any Exhibits or Schedules contemplated hereby are not
attached hereto at the time of execution of this Agreement, the parties hereto
will work and negotiate in good faith to complete and attach such Schedules and
Exhibits within ten (10) business days thereafter; provided, however, that
Panthers shall
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have the right to determine, in good faith, within two (2) business days of
receipt thereof that any Exhibit or Schedule prepared solely by Partnership
constitutes a Material Adverse Change in which case the provisions of Subsection
(a) above will apply.
5.7 Tax Treatment. Panthers, BRMC, and the Partnership will use their
respective best efforts to cause the receipt by the Partnership of the
partnership interest in Panthers BRHC Limited contemplated hereunder to qualify
as a tax-free transaction under the provisions of Section 721 of the Code and do
not presently intend to take any action after the transaction contemplated
hereunder is effected to cause such transaction to lose its tax-free status. All
parties hereto agree to comply with the Code and applicable Treasury Regulations
regarding reporting requirements relating to a transaction under Section 721 of
the Code.
5.8 Confidentiality; Publicity. Except as may be required by law or as
otherwise permitted or expressly contemplated herein, no party hereto or their
respective Affiliates, employees, agents and representatives shall disclose to
any third party this Agreement or the subject matter or terms hereof without the
prior consent of the other parties hereto. No press release or other public
announcement related to this Agreement or the transactions contemplated hereby
shall be issued by any party hereto without the prior approval of the other
parties, except that Panthers may make such public disclosure which it believes
in good faith to be required by law or by the terms of any listing agreement
with or requirements of a securities exchange or the NASDAQ Stock Market (in
which case Panthers will consult with an officer of the Partnership prior to
making such disclosure).
5.9 No Other Discussions. While this Agreement is in effect, neither the
Partnership, the General Partner nor BRMC or their respective Affiliates,
employees, agents and representatives will (i) initiate or encourage the
initiation by others of discussions or negotiations with third parties relating
to any merger, sale or other disposition of any substantial part of the assets,
business or properties of the Partnership (whether by merger, consolidation,
sale of stock or otherwise) or (ii) enter into any agreement or commitment
(whether or not binding) with respect to any of the foregoing transactions,
other than pursuant to the terms of Section 5.12 hereof. The Partnership, the
General Partner and BRMC will immediately notify Panthers if any third party
attempts to initiate any solicitation, discussion or negotiation with respect to
any of the foregoing transactions.
5.10 [Reserved]
5.11 Trading in Panthers Common Stock. Except as otherwise expressly
consented to by Panthers, from the date of this Agreement until the Closing
Date, neither the Partnership, the General Partner nor BRMC (or any Affiliates
thereof) will directly or indirectly purchase or sell (including short sales)
any shares of Panthers Common Stock in any transactions effected on the NASDAQ
Stock Market or otherwise.
5.12 Termination Fee. Prior to the acceptance by the Partnership of any
unsolicited third party offer for the assets to be acquired hereunder (or for a
majority of the limited partnership interests in the Partnership), the
Partnership shall notify Panthers in writing and Panthers shall have ten (10)
business days to match any such offer in writing (including by matching any
offer with Panthers Common Stock with a fair market value equal to the fair
market value of the third party offer). In the event Panthers does not match
such offer, the Partnership may terminate this Agreement and accept such offer
in which case the Partnership shall pay to Panthers $10,000,000 and reimburse
Panthers for its out-of-pocket costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby ("Termination Fee"). In
the event the limited partners of the Partnership fail to approve the
transaction contemplated by this Agreement, and a substantial part of the
assets, business or properties to be acquired hereunder are sold (or a majority
of the limited partnership interests of the Partnership are transferred) within
six months of the resulting termination, the Termination Fee shall also be
payable by the Partnership to Panthers. Panthers shall pay the Partnership
$10,000,000, plus reimburse the Partnership for its out-of-pocket costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, in the event Panthers fails to close the transactions
contemplated by this Agreement solely due to Panthers' breach of this Agreement.
5.13 Maintenance of Loan Agreement. Prior to the earlier of January 1,
2001 or such date as Panthers Common Stock closes at an average price of $36.93
(adjusted, as appropriate, for any stock split, reverse stock split, stock
dividend or "Special Transaction" generally in accordance with the provisions of
Exhibit "A"
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attached hereto) for five consecutive trading days on the NASDAQ Stock Market,
Panthers BRHC Limited shall not prepay or modify the $110 million Senior
Facility, and will only refinance such $110 million Senior Facility on terms
which provide for the allocation of the refinanced indebtedness as Qualified
Non-Recourse Debt in the same manner as the $110 Million Senior Facility is
currently allocated.
5.14 Panthers BRHC Limited Appointed Attorney for the
Partnership. Effective at the Closing Date, the Partnership hereby constitutes
and appoints the Panthers Affiliate that becomes the managing general partner of
Panthers BRHC Limited and Panthers BRHC Limited, and its successors and assigns,
its true and lawful attorney, in the name of either Panthers BRHC Limited or the
Partnership (as Panthers BRHC Limited shall determine in its sole discretion)
but for the benefit and at the expense of Panthers BRHC Limited (except as
otherwise herein provided), (a) to institute and prosecute all proceedings which
Panthers BRHC Limited may deem proper in order to collect, assert or enforce any
claim, right or title of any kind in or to the Contributed Assets as provided
for in this Agreement; (b) to defend or compromise any and all actions, suits or
proceedings in respect of any of the Contributed Assets, and to do all such acts
and things in relation thereto as Panthers BRHC Limited shall deem advisable;
and (c) to take all action which Panthers BRHC Limited may reasonably deem
proper in order to provide for Panthers BRHC Limited the benefits under any of
the Contributed Assets where any required consent of another party to the sale
or assignment thereof to Panthers BRHC Limited pursuant to this Agreement shall
not have been obtained. The Partnership acknowledges that the foregoing powers
are coupled with an interest and shall be irrevocable. Panthers BRHC Limited
shall be entitled to retain for its own account any amounts collected pursuant
to the foregoing powers, including any amounts payable as interest in respect
thereof.
5.15 Execution of Further Documents. From and after the Closing, upon the
reasonable request of Panthers BRHC Limited, the Partnership shall execute,
acknowledge and deliver all such further deeds, bills of sale, assignments,
transfers, conveyances, powers of attorney and assurances as may be required or
appropriate to convey and transfer to and vest in Panthers BRHC Limited and
protect its right, title and interest in all of the Contributed Assets and the
Sold Assets and to carry out the transactions contemplated by this Agreement.
5.16 Employees of the Partnership. The Partnership agrees to use its
reasonable best efforts to aid Panthers BRHC Limited in engaging such of the
employees of the Partnership as are employed on the Closing Date whom Panthers
BRHC Limited desires to engage after the Closing Date.
5.17 Payoff Letters. Prior to Closing, (a) the Partnership shall request
payoff and estoppel letters with respect to any Indebtedness being repaid or
assumed by Panthers BRHC Limited, which letters shall contain payoff amounts,
per diems, wire transfer instructions and an agreement to deliver, upon full
payment, UCC-3 termination statements, satisfactions of mortgage or other
appropriate releases and any original promissory notes or other evidences of
indebtedness marked canceled, and (b) the Partnership shall provide Panthers
BRHC Limited with evidence of satisfaction in full or release of all guarantees,
notes, or obligations of the Partnership to or on behalf of any Affiliate of the
Partnership or the Partners.
5.18 Panthers Board of Directors. For so long as either of Messrs. Xxxxxx
or Xxxxxxxxx (or their respective firms) shall be employed by Panthers BRHC
Limited, Panthers shall nominate one of such persons for election to the Board
of Directors of Panthers at each annual meeting of Panthers.
5.19 Allocation of Consideration. The consideration paid by Panthers and
Panthers BRHC Limited for the Contributed Assets shall be allocated to the
Contributed Assets as set forth on Schedule 5.19 hereto.
5.20 Expenses. Subject to the reasonable approval of Panthers and the
Partnership, the Partnership shall pay, out of cash contributed by Panthers
pursuant to Section 1.5(a) hereof and listed in Schedule 1.5(vii), the direct
costs and expenses of Panthers and the Partnership (including but not limited to
financial advisory, brokerage, legal, accounting and printing fees, and fees
relating to the fairness opinion and consent solicitation) payable in connection
with the transaction contemplated hereby, together with all documentary stamp
and intangible taxes payable in connection with the transfer of title to any of
the Contributed Assets and the Sold Assets (including the Owned Property), all
fees and expenses payable in connection with the assumption or refinancing of
the $110 Million Senior Facility indebtedness, together with
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the costs and expenses (including the title insurance premium) charged in
connection with the issuance of a new Owners Title Insurance Policy (and
corresponding Mortgagee Policy or endorsement to the existing Senior Facility
Mortgagee policy, as appropriate) to Panthers BHRC Limited and any other
transaction fees or expenses. Panthers shall have the right to designate the
title company and title agent in its sole discretion.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF THE PANTHERS
The obligations of the Panthers and Panthers BRMC Limited to effect the
transactions contemplated hereunder shall be subject to the fulfillment at or
prior to the Closing Date of the following conditions, any or all of which may
be waived in whole or in part by Panthers:
6.1 Accuracy of Representations and Warranties and Compliance with
Obligations. The representations and warranties of the Partnership, the General
Partner and BRMC contained in this Agreement shall be true and correct in all
material respects at and as of the Closing Date with the same force and effect
as though made at and as of that time except (i) for changes specifically
permitted by or disclosed pursuant to this Agreement, (ii) that those
representations and warranties which address matters only as of a particular
date shall remain true and correct in all material respects as of such date; and
(iii) those which are not a Material Adverse Change with respect to the
Partnership. The Partnership, the General Partner and BRMC shall have performed
and complied in all material respects with all of their respective obligations
required by this Agreement to be performed or complied with at or prior to the
Closing Date. The Partnership, the General Partner and BRMC shall have delivered
to Panthers a certificate, dated as of the Effective Date, duly signed (in the
case of the Partnership, by its General Partner), certifying that such
representations and warranties are true and correct in all material respects and
that all such obligations have been complied with and performed in all material
respects.
6.2 No Material Adverse Change or Destruction of Property. Between the
date hereof and the Closing Date, (i) there shall have been no Material Adverse
Change to the Partnership, (ii) there shall have been no adverse federal, state
or local legislative or regulatory change affecting in any material respect the
services, products or business of the Partnership, and (iii) none of the
properties and assets of the Partnership shall have been damaged by fire, flood,
casualty, act of God or the public enemy or other cause (regardless of insurance
coverage for such damage) which damages may have a Material Adverse Effect
thereon, and there shall have been delivered to the Panthers a certificate to
that effect, dated the Effective Date and signed by or on behalf of the
Partnership.
6.3 Partnership Certificate. The General Partner shall have delivered to
Panthers a certificate of good standing of the Partnership issued by the
Secretary of State of the State of Florida and each other state in which the
Partnership is qualified to do business as of a date not more than fifteen (15)
days prior to the Closing Date. The Partnership shall have delivered to Panthers
(x) a copy of the certificate of limited partnership and the agreement of
limited partnership as in effect immediately prior to the Closing Date and (y) a
copy of the certificate of the General Partner of the Partnership authorizing
the transactions contemplated by this Agreement, certified in the case of
subsections (x) and (y) of this Section 6.3 as of the Closing Date by the
General Partner as being true, correct and complete.
6.4 Opinion of Counsel. Panthers shall have received an opinion dated as
of the Closing Date from counsel for the Partnership, in form and substance
acceptable to Panthers, to the effect that:
(i) The Partnership is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of Florida and is
authorized to carry on the business now conducted by it and to own or lease
the properties now owned or leased by it;
(ii) The Partnership has obtained all necessary authorizations and
consents of its partners, and any other required consents under its
certificate of limited partnership and partnership agreement, as the case
may be, to effect the transactions contemplated hereunder;
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(iii) All general partnership interests of the Partnership are owned
as set forth in Schedule 3.2 hereto;
(iv) Such counsel does not know or have reason to believe that there
is any litigation, proceeding or investigation pending or threatened which
might result in any Material Adverse Change in the properties, business or
prospects or in the condition of the Partnership, or which questions the
validity of this Agreement, Panthers BRHC Limited's limited partnership
agreement and the Exchange Agreement (collectively, the "Transaction
Agreements"); and
(v) The Transaction Agreements are valid and binding obligations of
the Partnership, the General Partner and BRMC, and are enforceable against
the Partnership, the General Partner and BRMC, in accordance with their
respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally or general equitable principles.
6.5 Senior Credit Facility. The Partnership shall have received the
appropriate consents under the Loan Agreement from the Bank of Nova Scotia (as
Agent for the lenders thereunder), or the Partnership shall have refinanced the
Senior Credit Facility on terms equal to or better than those terms existing
under the Loan Agreement and otherwise acceptable to Panthers in its reasonable
discretion.
6.6 Other Consents. In addition to the consent required by Section 6.5,
the Partnership shall have received consents to the transactions contemplated
hereby and waivers of rights to terminate or modify any material rights or
obligations of the Partnership from any Person from whom such consent or waiver
is required under any Designated Contract as of a date not more than ten days
prior to the Closing Date, or who, as a result of the transactions contemplated
hereby, would have such rights to terminate or modify such Designated Contracts,
either by the terms thereof or as a matter of law, in each case where the
failure to obtain such consent or consents, individually or in the aggregate,
would have a Material Adverse Effect on the Partnership.
6.7 Securities Laws. Panthers and Panthers BRMC Limited shall have
received all necessary consents and otherwise complied with any state Blue Sky
or securities laws applicable to the issuance of their respective securities
hereunder, in connection with the transactions contemplated hereby.
6.8 Employment Agreement. Panthers BRHC Limited shall have entered into
employment agreements with Messrs. Glennie, Feder, March, Xxxxxxxx, Xxxxx and
Xxxxxxx ("Operating Management") in the form of Exhibit "D" (terms attached as
Schedule D) attached hereto.
6.9 Supervisory Management. Messrs. Xxxxxx and Xxxxxxxxx (or their
respective firms) shall enter into employment or consulting agreements (as the
case may be) with Panthers BRHC Limited in the form of Exhibit "E" (terms
attached as Schedule E) attached hereto.
6.10 Advisory Director. Xx. Xxxxxx shall have entered into a consulting
agreement with Panthers BRHC Limited in the form of Exhibit "F" (terms attached
as Schedule F) attached hereto.
6.11 Acknowledgment of Receipt of SEC Filings. At or prior to the Closing,
the General Partner and the Partnership shall have delivered to Panthers a
letter agreement acknowledging receipt of SEC filings of Panthers, in form and
substance satisfactory to the Panthers.
6.12 Transfer of Assets. At the Closing, the Partnership shall have
delivered to Panthers BRHC Limited and to Panthers, as applicable, all
assignments, warranty deeds and other instruments reasonably required to
evidence the conveyance of all of the Contributed Assets and the Sold Assets.
6.13 No Adverse Litigation. There shall not be pending or threatened any
action or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit, invalidate or collect damages arising out of
the transaction contemplated hereunder or any other transaction contemplated
hereby, and which, in the judgment of Panthers, makes it inadvisable to proceed
with the transaction contemplated hereunder and other transactions contemplated
hereby.
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6.14 HSR Act Waiting Period. Any applicable HSR Act waiting period shall
have expired or been terminated.
6.15 Other Approvals. The SEC shall have approved Panthers' proxy
statement, consent solicitation statement or information statement (to be
determined in the absolute discretion of Panthers) to its shareholders and shall
have received all necessary approvals of the NASDAQ Stock Market.
6.16 Dissolution of the Partnership. Panthers shall have received an
agreement from the General Partner of the Partnership to dissolve the
Partnership at such time as Panthers (or its designee) elects, after acquisition
of the Partnership's interest in Panthers BRHC Limited; together with an
estoppel letter from the General Partner of the Partnership stating that upon
dissolution and liquidation of the Partnership, Panthers designees owning
limited partnership interests in the Partnership shall be entitled to receive a
pro rata portion of the Partnership's distributable assets equal to the quotient
obtained by dividing: (A) the total Panthers Shares actually issued upon
exercise of the Exchange Rights to date; by (B) the total Panthers Shares
available for issuance under the Exchange Agreement as calculated pursuant to
Section 1.8(i) hereof.
6.17 Accounting Treatment. There shall not have been a change in the rules
promulgated by the Securities and Exchange Commission which does not permit
Panthers to consolidate for financial reporting purposes, all of the results of
operations of Panthers BRHC Limited.
6.18 Panthers BRHC Limited Partnership Agreement and Exchange
Agreement. The Partnership shall have executed and delivered the limited
partnership agreement for Panthers BRHC Limited and the Exchange Agreement.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS
OF THE PARTNERSHIP
The obligations of the Partnership to effect the transactions contemplated
hereunder shall be subject to the fulfillment at or prior to the Closing Date of
the following conditions, any or all of which may be waived in whole or in part
by the Partnership:
7.1 Accuracy of Representations and Warranties and Compliance with
Obligations. The representations and warranties of Panthers and Panthers BRMC
Limited contained in this Agreement shall be true and correct at and as of the
Closing Date with the same force and effect as though made at and as of that
time except (i) for changes specifically permitted by or disclosed pursuant to
this Agreement, and (ii) that those representations and warranties which address
matters only as of a particular date shall remain true and correct as of such
date. Panthers and Panthers BRHC Limited shall have performed and complied with
all of its obligations required by this Agreement to be performed or complied
with at or prior to the Closing Date. Panthers and Panthers BRHC Limited shall
have delivered to a representative of the Partnership a certificate, dated as of
the Effective Date, and signed by a duly authorized executive officer,
certifying that such representations and warranties are true and correct and
that all such obligations have been complied with and performed.
7.2 Issuance of Securities and Delivery of Agreement. At the Closing, the
Partnership shall have received all of the Panthers Warrants contemplated by
Section 1.8(j) hereof, Panthers BRGP Corporation shall have executed and
delivered the limited partnership agreement for Panthers BRHC Limited in and
Panthers shall have executed and delivered the Exchange Agreement.
7.3 No Adverse Litigation. There shall not be pending or threatened any
action or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit, invalidate or collect damages arising out of
the transactions contemplated hereunder or any other transaction contemplated
hereby, and which in the judgment of the General Partner makes it inadvisable to
proceed with the transactions contemplated hereunder and other transactions
contemplated hereby.
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7.4 HSR Act Waiting Period. Any applicable HSR Act waiting period shall
have expired or been terminated.
7.5 Partner Consents. All required partner consents for this transaction
contemplated hereby under the Partnership's Partnership Agreement shall have
been obtained.
7.6 Registration Statement. The registration statement(s) required by
Article XIII hereof shall be effective.
7.7 Opinion of Counsel. The Partnership shall have received an opinion
dated as of the Closing Date from counsel for Panthers and Panthers BRHC
Limited, in form and substance acceptable to Partnership, to the effect that:
(i) Panthers is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida; Panthers has the
requisite power and authority to carry on its business as now being
conducted; Panthers BRHC Limited is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of
Florida; and Panthers BRHC Limited has the requisite power and authority to
carry on its business as now being conducted;
(ii) Panthers (and Panthers Affiliates) and Panthers BRHC Limited each
have the power and authority to execute and deliver the Transaction
Agreements to which they are a party, to perform their respective
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby or thereby. Each of Panthers (and Panthers Affiliates)
and Panthers BRHC Limited have taken all action necessary to authorize the
execution and delivery of the Transaction Agreements to which they are a
party, including obtaining all required consents required by their
respective Articles of Incorporation and Bylaws, which consents have been
validly obtained, and the performance of their respective obligations
hereunder and thereunder and the consummation of the transactions
contemplated hereby and thereby;
(iii) The execution and delivery of the Transaction Agreements by
Panthers (and Panthers Affiliates) and Panthers BRHC Limited to which they
are a party and the performance of their respective agreements in the
Transaction Agreements do not violate the Articles of Incorporation, or the
Bylaws of Panthers (and Panthers Affiliates) or the Certificate of Limited
Partnership or Partnership Agreement of Panthers BRHC Limited,
respectively.
(iv) Each of the Transaction Agreements has been duly executed and
delivered by Panthers (and Panthers Affiliates) and Panthers BRHC Limited
(as applicable) and constitutes a legal, valid and binding obligation of
each of them, enforceable against each of them in accordance with its
terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and general equitable principles
regardless of whether such enforceability is considered in a proceeding at
law or in equity;
(v) Upon consummation of the transactions contemplated hereunder and
the issuance and delivery of the Panthers Warrants, the Panthers Warrants
will be validly issued; upon the exchange of any of the Exchange Rights for
Panthers Shares, and the issuance and delivery of certificates representing
the Panthers Shares to the holders of the Exchange Rights, the Panthers
Shares will be validly issued, fully paid and non-assessable shares of
Panthers Common Stock; and upon exercise of the Panthers Warrants in
accordance with the terms thereof, and payment of the exercise price with
respect thereto, and upon issuance and delivery of the certificates
representing shares of Panthers Common Stock therefore, the shares of
Panthers Common Stock issued thereunder will be validly issued, fully paid
and non-assessable; and
(vi) As of a date on or about the Closing Date, a statement of the
authorized capital stock of Panthers (including any shares of stock
reserved for issuance under any stock option plan); together with a
statement of the total number of securities issued by Panthers and
outstanding (and whether such securities are fully paid and
non-assessable); together with a statement of the total shares of Common
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Stock which are unissued but subject to granted but currently unexercised
options and which are reserved for issuance pursuant to the Exchange
Agreement and upon exercise of the Panthers Warrants.
7.8 Share Price. After the mailing of the solicitations for the limited
partner consents under Section 7.5, there shall not have occurred a Material
Adverse Effect with respect to Panthers which causes the stock price of Panthers
on the NASDAQ Stock Market to fall below $26.375.
ARTICLE VIII
REGISTRATION
8.1 Registration. Prior to the Closing Date, Panthers shall register under
the Securities Act of 1933 ("Securities Act") and under applicable state
securities law, the issuance of the Exchange Rights, Panthers Shares, the Fee
Shares and the Panthers Warrants to the Partnership. Panthers BRHC Limited and
Panthers shall use best efforts to keep the registration statements required by
this Section 8.1 effective for so long as shall be necessary to allow the resale
of any underlying Panthers Common Stock to be made by any holder thereof without
restriction under Section 4(1) of the Securities Act (but without taking into
account any status of such holder as an affiliate of Panthers or Panthers BRHC
Limited).
8.2 Expenses of Registration. Panthers and Panthers BRHC Limited shall pay
all expenses incurred in connection with the registration, qualification and/or
exemption of the securities to be issued hereunder, including any SEC and state
securities law registration and filing fees, printing expenses, fees and
disbursements of Panthers' and Panthers BRHC Limited's counsel and accountants,
transfer agents' and registrars' fees, fees and disbursements of experts used by
Panthers and Panthers BRHC Limited in connection with such registration,
qualification and/or exemption, and expenses incidental to any amendment or
supplement to the Registration Statements or prospectuses contained therein.
Panthers and Panthers BRHC Limited shall not, however, be liable for any sales,
broker's or underwriting commissions upon sale by any holder of any of the
Panthers Shares or Panthers Warrants.
ARTICLE IX
APPLICATION OF HELD BACK INTERESTS
9.1 Survival of Representations and Warranties. Each of the
representations and warranties of the Panthers and Panthers BRHC Limited in this
Agreement or pursuant hereto shall expire at the Closing Date. Each of the
representations and warranties made by the Partnership, the General Partner and
BRMC in this Agreement or pursuant hereto shall expire at the Closing Date,
provided however, that with respect to the Trade Accounts Receivable and Premier
Club Accounts Receivable "Loss Experience" (defined below), Panther's designee
(for example, for purposes of this Article IX, Panthers BRGP Corporation) shall
have recourse to the Held Back Interests as set forth in Section 9.2 hereof.
9.2 Loss Experience and Security for Loss Experience. The "Loss
Experience" with respect to the Trade Accounts Receivable and the Premier Club
Accounts Receivable identified on the Closing Net Working Capital Statement
shall be calculated as of December 31, 1997, unless the Closing occurs
subsequent to June 30, 1997, in which case the Loss Experience shall be
calculated as of a date which is the end of the calendar quarter and which falls
between six and nine months after the Closing Date ("Settlement Date"); for
example, if the Closing occurs on July 10, 1997, the Settlement Date would be
March 31, 1998.
(a) Trade Accounts Receivable Loss Experience shall equal: The total
amount of Trade Accounts Receivable listed on the Closing Net Working
Capital Statement which are uncollected at the Settlement Date.
(b) Premier Club Accounts Receivable Loss Experience shall equal: The
sum of (i) the total amount of Premier Club Accounts Receivable past due
(determined in good faith between Panthers and the Partnership) as of the
Settlement Date ("PCAR Delinquent Amount") plus (ii) the product of (1) the
percentage obtained by dividing (x) the PCAR Delinquent Amount by (y) the
total Premier Club
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Accounts Receivable set forth on the Closing Net Working Capital Statement
which were due on or before the Settlement Date; multiplied by (2) the
amount identified on the Closing Net Working Capital Statement as being due
subsequent to the Settlement Date.
9.3 Adjustment Amount. The Partnership shall pay to Panthers BRGP
Corporation the "Adjustment Amount," which shall equal: (i) the Trade Accounts
Receivable Loss Experience, plus (ii) any negative amount obtained by
subtracting from the Net Working Capital set forth on the Closing Net Working
Capital Statement: (1) the transaction costs referred to in Section 5.20; and
(2) the Premier Club Accounts Receivable Loss Experience. As security for the
agreement by the Partnership to pay the Adjustment Amount, the Partnership does
hereby grant a security interest in, and Pledge to Panthers BRGP Corporation the
Held Back Interests (as defined in Section 1.8(i)) and any Panthers Common Stock
exchangeable therefore and proceeds of all of the foregoing. Panthers BRGP
Corporation may set off against the Held Back Interests and against any proceeds
thereof the Adjustment Amount for which the Partnership may be responsible
pursuant to this Agreement, subject, however, to the following terms and
conditions:
(a) Panthers BRGP Corporation shall give written notice to the
Partnership of any claim for setoff against the Held Back Interests, which
notice shall set forth: (i) the amount of the Adjustment Amount; and (ii)
the basis of such claim;
(b) Such set off shall be effected on the later to occur of the
expiration of 30 days from the date of such notice (the "Notice of Contest
Period") or, if such claim is contested, the date the dispute is resolved,
and such set off shall be charged proportionally against the shares set
aside;
(c) If, prior to the expiration of the Notice of Contest Period, the
Partnership shall notify Panthers BRGP Corporation in writing of an
intention to dispute the claim, the parties shall in good faith negotiate
to resolve the claim or submit the matter to binding arbitration;
(d) For purposes of this Article, Panthers Shares for which each Held
Back Interest can be exercised shall be valued at the greater of the Price
per Share or the price per share of Panthers Common Stock at the close of
trading on the date the written notice is sent pursuant to clause (a)
above.
(e) Neither the Partnership nor the General Partner shall be liable to
Panthers or Panthers BRHC Limited or Panthers BRGP Corporation for any
deficiency resulting from the value of the Held Back Interests being less
than the Adjustment Amount, it being agreed that the only recourse against
Partnership by any party for the Adjustment Amount shall be to the Held
Back Interests.
9.4 Voting of and Dividends on the Held Back Interests. Except with
respect to Held Back Interests transferred pursuant to the foregoing right of
set off (and in the case of such Held Back Interests, until the same are
transferred), all Held Back Interests shall be deemed to be owned by the
Partnership and the Partnership shall be entitled to vote any proceeds thereof;
provided, however, that, there shall also be deposited with Panthers, subject to
the terms of this Article, all shares of Panthers Common Stock issued to the
Partnership as a result of any exercise of any Exchange Rights with respect to
Held Back Interests, and as a result of any stock dividend or stock split and
all cash issuable to the Partnership as a result of any cash dividend with
respect to Panthers Common Stock exchangeable therefore. All stock and cash
issued or paid upon Held Back Interests shall be distributed to the person or
entity entitled to receive such Held Back Interests together with such Held Back
Interests.
9.5 Delivery of Held Back Interests and Proceeds. Panthers BRGP
Corporation agrees to deliver to the Partnership promptly following the
Settlement Date any Held Back Interests (or proceeds thereof) then held by it
which it is not entitled to retain pursuant to Section 9.3, unless there then
remains unresolved any claim for an Adjustment Amount as to which notice has
been given, in which event any Held Back Interests remaining on deposit after
such claim shall have been satisfied shall be returned to the Partnership
promptly after the time of satisfaction.
9.6 Adjustment to Consideration. All setoffs made pursuant to this Article
shall be treated as adjustments to the consideration granted under Section 1.8
hereof.
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ARTICLE X
DEFINITIONS
10.1 Defined Terms. As used herein, the following terms shall have the
following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act, as in effect on the
date hereof.
"Asbestos-Containing Material" means any material containing more than
one percent (1%) asbestos.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act of 1980 (42 U.S.C. 9601, et seq.), as heretofore or
hereafter amended from time to time.
"Contract" means any agreement, contract, lease, note, mortgage,
indenture, loan agreement, franchise agreement, covenant, employment
agreement, license, instrument, purchase and sales order, commitment,
undertaking, obligation, whether written or oral, express or implied.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with any Person, are treated as a
single employer under Section 414(b) or 414(c) of the Internal Revenue
Code.
"Environmental Laws" collectively means and includes all present and
future laws and any amendments (whether common law, statute, rule, order,
regulation or otherwise), permits, and other requirements or guidelines of
governmental authorities applicable to the Owned Property and relating to
the environment and environmental conditions or to any Hazardous Substance
or Hazardous Substance Activity (including, without limitation, CERCLA, the
Federal Resource Conservation and Recovery Act of 1976, 42 U.S.C.
sec. 6901, et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
sec. 6901, et seq., the Federal Water Pollution Control Act, 33 U.S.C.
sec. 1251, et seq., the Clean Air Act, 33 U.S.C. sec. 7401, et seq., the
Clean Air Act, 42 U.S.C. sec. 7401, et seq., the Toxic Substances Control
Act, 15 U.S.C. sec. 2601-2629, the Safe Drinking Water Act, 42 U.S.C.
sec. 300f-300j, the Emergency Planning and Community Right-to-Know Act, 42
U.S.C. sec. 1101, et seq., and any so-called "Super Fund" or "Super Lien"
law, environmental laws administered by the Environmental Protection
Agency, any similar state and local laws and regulations, all amendments
thereto and all regulations, orders, decisions, and decrees now or
hereafter promulgated thereunder).
"Environmental Report" means the "Report of Phase I Environmental Site
Assessment and Limited Visual Asbestos Survey" of the Boca Raton Resort and
Club dated August 8, 1996 prepared by Law Engineering and Environmental
Services, Inc., Project Number 00000-0-0000.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expansion Plan" shall have the meaning set forth in the Loan
Agreement.
"GAAP" means generally accepted accounting principles in effect in the
United States of America from time to time.
"Governmental Authority" means any nation or government, any state,
regional, local or other political subdivision thereof, and any entity or
official exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Hazardous Substance" means, at any time, (i) asbestos and any
Asbestos-Containing Material, (ii) any substance that is listed in, or
otherwise classified pursuant to, any Environmental Laws or any applicable
laws or regulations as a "hazardous substance", "hazardous material",
"hazardous waste", "infectious waste", "toxic substance", "toxic pollutant"
or any other formulation intended to define, list, or classify substances
by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, toxicity, reproductive toxicity, or "EP
toxicity", (iii) any petroleum and drilling fluids, produced waters, and
other wastes associated with the exploration, development or production of
crude
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oil, natural gas, or geothermal resources and (iv) petroleum productions,
ploychlorinated biphenyls, urea formaldehyde, radon gas, radioactive
matter, and medical waste.
"Hazardous Substance Activity" means any actual use, packaging,
labeling, treatment, leaching, spill, cleanup, storage, holding, existence,
release, emission, discharge, generation, processing, abatement, removal,
disposition, handling or transportation of any Hazardous Substance from,
under, into or on the Owned Property or surrounding property (but only
concerning surrounding property to the extent of seepage, release,
discharge, migration, disposal or other actions from the Owned Property to
the surrounding property or from the surrounding property to the Owned
Property).
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"Legal Requirements" means all applicable laws, statutes, ordinances,
rulings, regulations, codes, decrees, orders, judgments, covenants,
conditions, restrictions, approvals, permits and requirements under any
Permitted Exception or for, from or by any Governmental Authority,
including zoning, subdivision, use, environmental, building, safety,
health, housing and fire.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, but not limited to, any conditional
sale or other title retention agreement, any lease in the nature thereof,
and the filing of or agreement to give any financing statement under the
Uniform Commercial Code or comparable law or any jurisdiction in connection
with such mortgage, pledge, security interest, encumbrance, lien or
charge).
"Loan Agreement" means that certain Loan Agreement dated August 26,
1996 between the Partnership, as Borrower, the Bank's signatory thereto and
the Bank of Nova Scotia, as Agent.
"Material Adverse Change (or Effect)" means a change (or effect) in
the condition (financial or otherwise), properties, assets, liabilities,
rights, obligations, operations or business, which change (or effect)
individually or in the aggregate is materially adverse to such condition,
properties, assets, liabilities, rights, obligations, operations or
business.
"Permitted Exceptions" means those items set forth on Schedule 3.11(b)
hereof.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, estate, trust, unincorporated association,
joint venture, Governmental Authority or other entity, of whatever nature.
"Plan" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Part 3
of Title I of ERISA or Section 412 of the Code and is either (a) maintained
by any Person or any member of a Controlled Group for employees of such
Person or any member of such Controlled Group or (b) maintained pursuant to
a collective bargaining agreement or any other arrangement under which more
than one employer makes contributions and to which such Person or any
member of a Controlled Group is then making or has any obligation to make
contributions or, within the preceding five plan years, has made or has had
any obligation to make contributions.
"Register", "registered" and "registration" refer to a registration of
the offering and sale of securities effected by preparing and filing a
registration statement in compliance with the Securities Act and the
declaration or ordering of the effectiveness of such registration
statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Survey" means the surveys described on Item 1 of the Permitted
Exceptions.
"Tax Return" means any tax return, filing or information statement
required to be filed in connection with or with respect to any Taxes; and
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"Taxes" means all taxes, fees or other assessments, including, but not
limited to, income, excise, property, sales, franchise, intangible,
withholding, social security and unemployment taxes imposed by any federal,
state, local or foreign governmental agency, and any interest or penalties
related thereto.
10.2 Other Definitional Provisions. (a) All terms defined in this
Agreement shall have the defined meanings when used in any certificates, reports
or other documents made or delivered pursuant hereto or thereto, unless the
context otherwise requires.
(b) Terms defined in the singular shall have a comparable meaning when used
in the plural, and vice versa.
(c) All matters of an accounting nature in connection with this Agreement
and the transactions contemplated hereby shall be determined in accordance with
GAAP, applied on a basis consistent with prior periods, where applicable.
(d) As used herein, the neuter gender shall also denote the masculine and
feminine, and the masculine gender shall also denote the neuter and feminine,
where the context so permits.
ARTICLE XI
TERMINATION
11.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by mutual written consent of all of the parties hereto at any time
prior to the Closing;
(b) by Panthers, in the event of a breach by any of the Partnership,
the General Partner or BRMC of any provision of this Agreement which would
have a Material Adverse Effect upon the Partnership or upon the rights or
benefits of Panthers or Panthers BRHC Limited hereunder;
(c) by the Partnership in the event of a breach by Panthers or
Panthers BRHC Limited of any provision of this Agreement which would have a
Material Adverse Effect on the rights or benefits of the Partnership
hereunder;
(d) by either Panthers or the Partnership if the Closing shall not
have occurred by December 31, 1997;
(e) by either Panthers or the Partnership if the requisite consents of
the limited partners of the Partnership are not obtained within ninety (90)
days of the last mailing of the consent solicitation or any amendment
thereof; or
(f) by the Partnership upon payment of the Termination Fee set forth
in Section 5.12 hereof.
11.2 Effect of Termination. In the event of termination of this Agreement
pursuant to Section 11.1, this Agreement shall forthwith become void and of no
further force and effect and the parties shall be released from any and all
obligations hereunder; except that the provisions of Section 5.12 shall survive,
as applicable.
ARTICLE XII
GENERAL PROVISIONS
12.1 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission if such transmission is confirmed by
delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery, to the following addresses and
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telecopy numbers (or to such other addresses or telecopy numbers which such
party shall designate in writing to the other party):
(a) IF TO THE PANTHERS:
Florida Panthers Holdings, Inc.
000 X.X. Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
WITH A COPY TO:
Akerman, Senterfitt & Xxxxxx, P.A.
Xxx Xxxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) IF TO ANY OF THE PARTNERSHIP, THE GENERAL PARTNER OR BRMC TO:
Private Merchant Banking Company
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
WITH A COPY TO:
Boca Raton Hotel and Club Limited Partnership
000 Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. March
Telecopy: (000) 000-0000
WITH A COPY TO:
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Notice shall be deemed given on the date sent if sent by overnight delivery
or facsimile transmission and on the date delivered (or the date of refusal of
delivery) if sent by certified or registered mail.
12.2 Entire Agreement. This Agreement (including the Exhibits and
Schedules attached hereto) and other documents delivered at the Closing pursuant
hereto, contains the entire understanding of the parties in respect of its
subject matter and supersedes all prior agreements and understandings (oral or
written) between or among the parties with respect to such subject matter,
including, but not limited to that certain Contribution and Exchange Agreement
dated as of March 20, 1997 by and among the parties hereto. The Exhibits and
Schedules constitute a part hereof as though set forth in full above.
12.3 Amendment; Waiver. This Agreement may not be modified, amended,
supplemented, canceled or discharged, except by written instrument executed by
all parties. No failure to exercise, and no delay in exercising, any right,
power or privilege under this Agreement shall operate as a waiver, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
the exercise of any other right, power or privilege. No waiver of any breach of
any provision shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision, nor shall any waiver be implied from
any course of dealing between the parties. No extension of time for performance
of any obligations or other acts hereunder or under any other agreement shall be
deemed to be an extension of the time for performance of any other
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obligations or any other acts. The rights and remedies of the parties under this
Agreement are in addition to all other rights and remedies, at law or equity,
that they may have against each other.
12.4 Binding Effect; Assignment. The rights and obligations of this
Agreement shall bind and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied herein shall be
construed to give any other person any legal or equitable rights hereunder.
Except as expressly provided herein, the rights and obligations of this
Agreement may not be assigned by any of the parties without the prior written
consent of the other party; provided however, that Panthers may designate that
its affiliates may hold the Panther Interest.
12.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
12.6 Interpretation. When a reference is made in this Agreement to an
article, section, paragraph, clause, schedule or exhibit, such reference shall
be deemed to be to this Agreement unless otherwise indicated. The headings
contained herein and on the schedules are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement or the
schedules. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." Time shall be of the essence in this Agreement.
12.7 Governing Law; Interpretation. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the State of
Florida applicable to contracts executed and to be wholly performed within such
State.
12.8 Arm's Length Negotiations. Each party herein expressly represents and
warrants to all other parties hereto that (a) before executing this Agreement,
said party has fully informed itself of the terms, contents, conditions and
effects of this Agreement; (b) said party has relied solely and completely upon
its own judgment in executing this Agreement; (c) said party has had the
opportunity to seek and has obtained the advice of counsel before executing this
Agreement; (d) said party has acted voluntarily and of its own free will in
executing this Agreement; (e) said party is not acting under duress, whether
economic or physical, in executing this Agreement; and (f) this Agreement is the
result of arm's length negotiations conducted by and among the parties and their
respective counsel.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
FLORIDA PANTHERS HOLDINGS, INC., a
Florida corporation
By:
------------------------------------
Name:
-------------------------------
Title:
--------------------------------
PANTHERS BRHC LIMITED, a Florida
limited
partnership
By: Panthers BRGP Corporation
as general partner
By:
------------------------------------
Name:
-------------------------------
Title:
--------------------------------
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BOCA RATON HOTEL AND CLUB, LTD.,
a Florida limited partnership
By: BRMC, L.P., a Delaware limited
partnership, as general partner
By: BRMC, Inc., a Delaware
corporation, as general partner
By:
-------------------------------
Xxxxxxxx X. Xxxxxx, Chief
Executive Officer
BRMC, L.P., a Delaware limited
partnership
By: BRMC, INC., a Delaware
corporation, as general partner
By:
---------------------------------
Xxxxxxxx X. Xxxxxx, Chief
Executive Officer
BRMC, INC., a Delaware corporation
By:
------------------------------------
Xxxxxxxx X. Xxxxxx, Chief Executive
Officer
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