EXCHANGE AGREEMENT
EFFECTIVE DATE: March 28, 1997
PARTIES: The Monolith Limited Partnership,
a Delaware limited partnership ("Monolith")
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxx 00000
The Orlando Predators Entertainment, Inc.,
a Florida corporation ("Orlando Predators")
00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
RECITALS:
A. Monolith and the Orlando Predators desire that shares of
voting common stock of the Orlando Predators be exchanged with Monolith for
certain assets of Monolith (the "Exchange"), effective on the Effective Date
first set forth above.
B. Monolith and the Orlando Predators further desire to set forth certain
representations, warranties and covenants made by each to the other as an
inducement to the Exchange.
AGREEMENTS:
In consideration of the Exchange and the mutual agreements and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Monolith and the Orlando Predators
hereby agree as set forth in this Exchange Agreement (this "Agreement").
Article I
EXCHANGE
1.1 ISSUANCE OF STOCK. Simultaneous with the execution of this Agreement
and subject to and in consideration of the performance by Monolith of the
provisions of Section 1.2 below, the Orlando Predators shall issue and deliver
to Monolith 925 shares of voting, common stock of the Orlando Predators (the
"Shares").
1.2 ASSETS TO BE TRANSFERRED--LIABILITIES TO BE ASSUMED.
a. Simultaneous with the execution of this Agreement and subject to
and in consideration of the performance by the Orlando Predators of the
provisions of Section 1.1 above, Monolith shall convey and transfer to the
Orlando Predators all of the assets of Monolith which (a)
Monolith acquired from The Orlando Predators, Ltd., a Florida limited
partnership, and (b) are used in the operation of a professional arena football
franchise known as the Orlando Predators and located in Orlando, Florida (the
"Business"), including, without limitation, the rights, properties, and other
assets listed and described on the attached Exhibit "A" (collectively, the
"Assets").
b. In connection with the transfer of the Assets, the Orlando
Predators agrees to assume and become responsible for: (i) all of the
liabilities and obligations under those agreements described on Exhibit 2.3
of that certain Agreement of Purchase and Sale, dated January 14, 1997, by
and between Monolith and The Orlando Predators, Ltd., as amended (the
"Original Purchase Agreement"), incurred from and after February 13, 1997 and
(ii) all of the liabilities and obligations of Monolith under the Original
Purchase Agreement and all instruments entered into in connection with the
transactions referenced in the Original Purchase Agreement, including, but
not limited to, that certain Promissory Note, dated February 13, 1997, in the
original principal amount of $180,000 (collectively, the "Assumed
Liabilities").
c. Monolith shall execute and deliver to the Orlando Predators a
xxxx of sale, an assignment and assumption agreement, endorsements and other
instruments and documents reasonably satisfactory in form and substance to
the parties and their counsel as shall be effective to vest in the Orlando
Predators good title to the Assets, subject to no lien, charge, security
interest or other claim, right, interest or encumbrance, other than those
which constitute the Assumed Liabilities. The Orlando Predators shall
execute and deliver to Monolith such assignment and assumption agreements
(pursuant to which the Orlando Predators shall have assumed the obligations
of Monolith in respect of the Assumed Liabilities), security agreements and
other instruments and documents reasonably satisfactory in form and substance
to the parties and their counsel.
1.3 BULK SALE. To the extent such laws are applicable to the transactions
contemplated herein, Monolith and the Orlando Predators waive compliance with
the uniform commercial code provisions of the laws of any jurisdiction regarding
bulk transfers, and Monolith covenants and agrees to pay and discharge when due,
unless contested by appropriate proceedings, all creditors and all liabilities
of Monolith pertaining to the Business that are not among the Assumed
Liabilities.
Article II
REPRESENTATIONS OF MONOLITH LIMITED PARTNERSHIP
Monolith represents and warrants to the Orlando Predators, as of the Effective
Date, as follows:
2.1 ORGANIZATION OF MONOLITH. Monolith is a limited partnership duly
organized, validly existing and in good standing under the laws of Delaware.
2.2 AUTHORITY. Monolith has all necessary partnership power and authority
to own the Assets and has the right, power and authority to assign and transfer
the Assets in accordance with the terms and conditions hereof. Monolith has all
necessary power and authority to execute, deliver
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and perform this Agreement. All proceedings of Monolith required to authorize
the legal and valid execution, delivery and performance of this Agreement and
the consummation of all of the transactions contemplated by this Agreement, have
been duly and validly completed. This Agreement has been duly and validly
authorized, executed and delivered by, and is the valid and binding obligation
of Monolith enforceable in accordance with its terms.
2.3 NO CONSENTS. Except for any required consent by the League and except
for any consent required by the City of Orlando, Florida in connection with the
assignment of the arena facilities lease, to Monolith's knowledge no consents,
approvals, orders or authorizations are required for the execution and delivery
of this Agreement by Monolith, for the transfer and assignment of the Assets, or
for the consummation by Monolith of the transactions contemplated hereby.
2.4 EXECUTION AND PERFORMANCE: NO VIOLATION OF LAWS, AGREEMENTS; NO LIENS.
The execution and delivery of this Agreement by Monolith and the consummation by
Monolith of the transactions contemplated hereby (i) are not prohibited by, and
do not violate any provision and will not result in the breach (with or without
the giving of notice, lapse of time or both) of, or accelerate or permit the
acceleration of the performance required by the terms of (a) any applicable law,
rule, regulation, judgment, decree, order or other requirement of the United
States or of any State of the United States or of any court, authority,
department, commission, board, bureau, agency or instrumentality of either of
the foregoing; (b) the Certificate or Agreement of Limited Partnership of
Monolith, and any amendments thereto; or (c) any material contract, agreement or
commitment relating directly to the Business and to which Monolith is a party or
is bound or which is material to the operations of Monolith with respect to the
Business, and (ii) have not resulted and will not result in the creation or
imposition of any lien, encroachment, easement, encumbrance, mortgage,
hypothecation, equity, charge, restriction, possibility of reversion or other
similar conflicting ownership or security interest material to the Business in
favor of any person or entity on any Asset.
2.5 NO LITIGATION. There are no injunctions, orders, decrees or rulings
outstanding or actions, suits, claims, investigations or other proceedings
pending or, to the best of Monolith's knowledge, contemplated or threatened
against Monolith that could affect Monolith's ability to perform its obligations
under this Agreement.
2.6 COMPLIANCE. Except for such violations that will not materially and
adversely affect the Assets or the Business or its prospects or financial
condition, Monolith, to the best of its knowledge, has complied in all material
respects with each and is not in material violation of any federal, state,
county and municipal law, ordinance, code or regulation or governmental rule or
regulation, directives or orders to which the Business and/or the Assets are
subject.
2.7 TITLE TO THE ASSETS. Monolith is the owner of the Assets to be
conveyed pursuant hereto, has good, marketable and indefeasible title to the
Assets and shall convey to the Orlando Predators the Assets, free and clear of
any and all liens or encumbrances whatsoever except the Assumed Liabilities.
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2.8 MEMBERSHIP AGREEMENT. The membership interest in the League is in
good standing and there exists no event of default or an event which with the
passage of time, the giving of notice or both, will become an event of default
under the membership agreement with the League or any provisions of the League's
Bylaws or any other governing instruments.
2.9 ORIGINAL PURCHASE AGREEMENT. Except as otherwise disclosed by
Monolith to the Orlando Predators, Monolith is not aware that any of the
representations, warranties or covenants of The Orlando Predators, Ltd. under
the Original Purchase Agreement are not true or accurate as of the Effective
Date.
2.10 INVESTMENT REPRESENTATIONS. In connection with the acquisition of the
Shares, Monolith hereby represents and warrants that (i) it has such knowledge
and experience in financial and business matters to enable it to evaluate the
merits and risks of the acquisition of the Shares and to make an informed
investment decision with respect thereto; (ii) Monolith has discussed the
Orlando Predators' business, management and financial affairs with the Orlando
Predators' management, has had access to and has reviewed current and historical
information concerning the Business, and has had full opportunity to ask
questions of and receive answers from the authorized representatives of the
Orlando Predators concerning the Business and the Shares and all such questions
have been answered to the full satisfaction of Monolith; and (iii) Monolith is
acquiring the Shares for investment for its own account and not with the view
to, or for resale in connection with, any distribution thereof. Monolith
understands that the Shares have not been registered under the Securities Act of
1933 (the "Act") or any applicable state securities laws by reason of exemptions
from the registration provisions of the Act and applicable state securities laws
which may depend upon, among other things, the bona fide nature of its
investment intent as expressed herein.
Any representations or warranties made herein to Monolith's knowledge shall be
deemed to be based only upon Monolith's actual knowledge which shall be deemed
to consist only of the actual knowledge of Monolith's general partner.
Article III
REPRESENTATIONS OF ORLANDO PREDATORS
The Orlando Predators represent and warrant to Monolith, as of the Effective
Date, as follows:
3.1 ORGANIZATION. The Orlando Predators is a corporation, duly organized,
validly existing and in good standing under the laws of Florida.
3.2 AUTHORITY. The Orlando Predators has all necessary corporate power
and authority to execute and deliver this Agreement and consummate the
transactions contemplated hereby, to carry on its business as now conducted and
to own and operate its properties and assets now owned and being operated by it.
All proceedings of the Orlando Predators required to authorize the legal and
valid execution, delivery and performance of this Agreement and the consummation
of all of the transactions contemplated by this Agreement, have been duly and
validly completed. This
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Agreement has been duly and validly authorized, executed and delivered by, and
is the valid and binding obligation of the Orlando Predators enforceable in
accordance with its terms.
3.3 NO CONSENTS. To the knowledge of the Orlando Predators, no consents,
approvals, orders or authorizations are required for the execution and delivery
of this Agreement by the Orlando Predators for the issuance of the Shares or for
the consummation by the Orlando Predators of the transactions contemplated
hereby.
3.4 EXECUTION AND PERFORMANCE: NO VIOLATION OF LAWS, AGREEMENTS. The
execution and delivery of this Agreement by the Orlando Predators and the
consummation by the Orlando Predators of the transactions contemplated hereby
are not prohibited by, and do not violate any provision and will not result in
the breach (with or without the giving of notice, lapse of time or both) of, or
accelerate or permit the acceleration of the performance required by the terms
of (a) any applicable law, rule, regulation, judgment, decree, order or other
requirement of the United States or of any State of the United States or of any
court, authority, department, commission, board, bureau, agency or
instrumentality of either of the foregoing; (b) the Articles of Incorporation or
Bylaws of the Orlando Predators, and any amendments thereto; or (c) any material
contract, or agreement to which the Orlando Predators is a party or is bound or
which is material to the operations of the Orlando Predators.
3.5 NO LITIGATION. There are no injunctions, orders, decrees or rulings
outstanding or actions, suits, claims, investigations or other proceedings
pending or, to the best of the Orlando Predators' knowledge, contemplated or
threatened against the Orlando Predators that could affect the Orlando
Predators' ability to perform its obligations under this Agreement.
3.6 COMPLIANCE. Except for such violations that will not materially and
adversely affect the Orlando Predators or its assets or business or its
prospects or financial condition, the Orlando Predators, to the best of its
knowledge, has complied in all material respects with each and is not in
material violation of any federal, state, county and municipal law, ordinance,
code or regulation or governmental rule or regulation, directives or orders to
which its business and/or its assets are subject.
3.7 CAPITALIZATION. There are 1,000 shares of voting common stock of the
Orlando Predators (the "Common Stock") issued and outstanding and no shares of
preferred stock issued and outstanding. There are no shares of Common Stock
held as treasury shares. Other than this Agreement, the Orlando Predators is
not a party to or bound by any contract, agreement or arrangement to issue or
sell any capital stock or any other security of the Orlando Predators or any
other security exercisable or convertible into any capital stock or any other
security of the Orlando Predators. Other than this Agreement, there are no
outstanding options, warrants, preemptive rights, rights of first refusal or
other rights to subscribe for or purchase, or contracts, agreements or
arrangements with respect to, any capital stock or other security of the Orlando
Predators or any other security exercisable or convertible into any capital
stock or any other security of the Orlando Predators.
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3.8 SUBSIDIARIES. The Orlando Predators does not own or control, directly
or indirectly, any shares of capital stock of or any equity investment in any
corporation, partnership, business trust, association or other business entity.
3.9 VALIDITY OF SECURITIES. The Shares to be purchased and sold pursuant
to this Agreement, when sold and delivered in accordance with the terms hereof
and for the consideration expressed herein, shall be duly and validly issued,
fully paid and nonassessable, free and clear of any lien, encumbrance, option,
charge, equity or restriction whatsoever.
Any representations or warranties made herein to the Orlando Predators's
knowledge shall be deemed to be based only upon the Orlando Predators's actual
knowledge which shall be deemed to consist only of the actual knowledge of the
Orlando Predator's President.
Article V
SURVIVAL
5.1 SURVIVAL. All representations, warrants, covenants and agreements of
the Orlando Predators and Monolith contained in this Agreement shall survive the
issuance of the Shares and the conveyance of the Assets for a period of one year
following the Effective Date.
Article VI
NOTICES
6.1 ADDRESSES. All notices, waivers, demands, requests and other
communications required or permitted by this Agreement (collectively,
"Notices"), to be effective, shall be in writing and shall be given as follows
by (a) personal delivery, (b) established overnight commercial courier with
delivery charges prepaid or duly charged or, (c) registered or certified mail,
return receipt requested, first class postage prepaid: if to the Orlando
Predators, at 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 and if to
Monolith, c/o 0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxx 00000 or to
any other address or addressee as any party entitled to receive notice under
this Agreement shall designate, from time to time, by Notice given to the others
in the manner provided in this Article.
6.2 NOTICES. Notices thus given by personal delivery shall be deemed to
have been received upon tender to the respective natural person named above.
Notices thus given by overnight courier shall be deemed to have been received
the next business day after delivery to such overnight commercial courier.
Notices thus given by certified or registered mail shall be deemed to have been
received on the second day after deposit into the United States Postal System.
All copies to the respective person or persons, or entity or entities, listed
above to receive copies shall be given in the same manner as the original
Notice, and such giving shall be a prerequisite to the effectiveness of any
Notice.
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Article VII
MISCELLANEOUS
7.1 RIGHT TO WAIVE CONDITIONS. Either party may waive any of the terms or
conditions of this Agreement made for such party's benefit provided that such
waiver is in a writing signed by the waiving party. No waiver by any party of
any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
7.2 BINDING EFFECT. This Agreement shall be binding upon, and inure to
the benefit of, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
7.3 PARTIAL INVALIDITY. If any term, covenant or condition of this
Agreement, or the application thereof, to any person or circumstance shall be
invalid or unenforceable at any time or to any extent, then the remainder of
this Agreement, or the application of such term, covenant or condition to
persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby. Each term, covenant and condition
of this Agreement shall be valid and enforced to the fullest extent permitted by
law.
7.4 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the Assets and the Shares and there are no
promises, agreements, conditions, undertakings, understandings, warranties,
covenants or representations, oral or written, express or implied, between them
with respect to the Assets, the Shares, this Agreement, or the transaction
described in this Agreement, other than as set forth in this Agreement.
7.5 MODIFICATIONS. This Agreement may not be modified orally or in any
manner, other than by an agreement in writing signed by all the parties or their
respective successors in interest. Escrow Agent shall not be required to sign
any modification unless its rights or responsibilities under this Agreement are
directly affected.
7.6 FURTHER ASSURANCES. In addition to the respective obligations
required to be performed under this Agreement, the Orlando Predators and
Monolith shall each perform, on the Effective Date or from time to time
thereafter, such other acts, and shall execute, acknowledge and/or deliver such
other instruments, documents and other materials, as may be reasonably required
in order to consummate the transaction described in this Agreement. It is
understood and agreed, inter alia, that the foregoing provisions shall not be
deemed to require either party to perform any of the obligations of the other.
7.7 NO THIRD PARTY BENEFICIARIES. There shall be no third party
beneficiaries to this Agreement.
7.8 HEADINGS. The headings used in this Agreement are for reference and
convenience
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only, and shall not enter into the interpretation of this Agreement.
7.9 EXHIBITS. All exhibits to this Agreement shall be considered
incorporated in this Agreement by reference and made a material part of this
Agreement unless otherwise stated.
7.10 TIME OF ESSENCE. Time is of the essence of hereunder.
7.11 ASSIGNMENT. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other party.
7.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
7.13 CONSTRUCTION. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement.
[SIGNATURES BLOCKS CONTINUED ON NEXT PAGES]
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MONOLITH'S
SIGNATURE PAGE
PURCHASE AND SALE AGREEMENT
-------------------
IN WITNESS WHEREOF, Monolith has signed and delivered this Agreement as its
own free act and deed.
THE MONOLITH LIMITED PARTNERSHIP, a Delaware limited
partnership
By: WGM Corporation, a Delaware corporation
General Partner
By:
-----------------------------------
Xxxxxxx X. Xxxxx, President
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ORLANDO PREDATORS'
SIGNATURE PAGE
PURCHASE AND SALE AGREEMENT
-----------------------------
IN WITNESS WHEREOF, the Orlando Predators has signed and delivered this
Agreement as its own free act and deed.
THE ORLANDO PREDATORS ENTERTAINMENT, INC., a Florida
corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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Exhibit "A"
List of Assets
1 FRANCHISE LEAGUE MEMBERSHIP. All of Monolith's right, title and
membership interest in and to the Arena Football League, Inc. (the "League")
2. EQUIPMENT. All of Monolith's sport and training equipment and
uniforms in connection with the Business.
3. INVENTORY. All of Monolith's inventory of souvenir and licensed
merchandise relating to the Business.
4. PERSONAL PROPERTY. All of Monolith's furniture, furnishings, supplies
and other tangible personal property used in connection with the Business.
5. CONTRACTS. All of the leases, guaranties, warranties, agreements
(including, but not limited to, that certain Agreement of Purchase and Sale,
dated January 14, 1997, by and between Monolith and The Orlando Predators, Ltd.,
as amended), governmental permits or licenses, operating contracts, agreements
for the purchase or the sale of spectator tickets, supplies, products or other
personal property or for the furnishing or receipt of services, agreements
concerning confidentiality or noncompetition, service and facility contracts,
and licenses and other rights relating to the ownership, management and
operation of the Business to which Monolith is a party or by which Monolith is
bound and all agreements under which the consequences of a default or
termination could have a materially adverse effect on the Business, financial
condition, operations, results of operations, or future prospects of the
Business (the "Contracts").
6. INTELLECTUAL PROPERTY. All of Monolith's rights (if any) in and to
all trademarks, trade names (including, but not limited to the "Orlando
Predators"), service marks, and logos related to or used in the Business,
together with all translations, adaptations, derivations and combinations
thereof, and all other proprietary rights of Monolith, including, without
limitation, all telephone exchanges and numbers, computer programs and software
and all copies and tangible embodiments thereof.
7. DOCUMENTS. All ticket holder lists, mailing lists, sponsor lists,
records, correspondences, sales and marketing records and literature related to
the Business.
8. REVENUES. All revenues, whether generated from ticket sales, from
sponsors or otherwise, with respect to the fiscal year end which includes the
1997 arena football season which have not been expended in the ordinary course
of business for expenses related to the fiscal year end which includes the 1997
arena football season.
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XXXX OF SALE
THIS XXXX OF SALE (this "Xxxx of Sale"), dated March 28, 1997 is executed
by THE MONOLITH LIMITED PARTNERSHIP, a Delaware limited partnership
("Assignor"), in favor of THE ORLANDO PREDATORS ENTERTAINMENT, INC., a Florida
corporation ("Assignee").
WHEREAS, Assignor and Assignee entered into an Exchange Agreement, dated
March 28, 1997 (the "Agreement") for the exchange of shares of voting common
stock of Assignee for certain of "Assets", as that term is defined in the
Agreement.
WHEREAS, under the Agreement, Assignor is obligated to assign, transfer,
set over and deliver to Assignee all of Assignor's right, title and interest in
and to that certain property described on the attached EXHIBIT "A" (the
"Property").
NOW, THEREFORE, in accordance with the Agreement and for good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged,
Assignor does hereby absolutely and unconditionally give, grant, bargain, sell,
transfer, set over, assign, convey, release, confirm and deliver to Assignee all
of the Assignor's right, title and interest in and to the Property, free and
clear of any and all liens and encumbrances of any nature whatsoever and
Assignee hereby accepts the foregoing assignment of the Property.
Assignor hereby covenants that Assignor will, at any time and from time to
time upon written request therefor, execute and deliver to Assignee and
Assignee's successors, nominees or assigns, such documents as Assignee or they
may reasonably request in order to fully assign and transfer to and vest in
Assignee or Assignee's successors, nominees, and assigns, and protect Assignee's
or their right, title and interest in and to all of the Property and rights of
Assignor intended to be transferred and assigned hereby, or to enable the
Assignee and Assignee's successors, nominees and assigns to rely upon and
otherwise enjoy such rights and property.
This Xxxx of Sale shall be binding upon and inure to the benefit of the
successors and assigns of Assignee and Assignor.
This Xxxx of Sale shall be governed by, interpreted under, and construed in
accordance with the laws of the State of Florida.
In the event of any litigation between Assignor and Assignee arising out of
this Xxxx of Sale or concerning the meaning or interpretation of any provision
contained herein, the losing party shall pay the prevailing party's costs and
expenses of such litigation, including, without limitation, reasonable
attorneys' fees.
IN WITNESS WHEREOF, this Xxxx of Sale has been signed, sealed and delivered
by the parties as of the date first above written.
THE MONOLITH LIMITED PARTNERSHIP, a Delaware limited
partnership
By: WGM Corporation, a Delaware corporation, The
General Partner
By:
----------------------------------------------
Xxxxxxx X. Xxxxx, President
-2-
EXHIBIT "A"
Description of Property
1. All of Assignor's sport and training equipment and uniforms.
2. All of Assignor's inventory of souvenir and licensed merchandise relating
to the operation of the professional arena football franchise known as the
Orlando Predators and located in Orlando, Florida.
3. All of Assignor's furniture, furnishings, supplies and other tangible
personal property listed on the attached Schedule A-1.
Schedule A-1
List of Assigned Tangible Personal Property
