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EXHIBIT 10.12
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of
January 18, 1997 by and among FLORIDA PANTHERS ICE VENTURES, INC., a Florida
corporation (the "Purchaser"), XXXXXXX XXXXX XXXXXX, ARCHITECTS, a Canadian
partnership ("BBBA"), and XXXXX XXXXXXX, a Canadian citizen and resident of
Toronto, Ontario ("Xxxxxxx", together with BBBA, the "Sellers"). Certain other
capitalized terms used herein are defined in Article VIII and throughout this
Agreement.
RECITALS
The Sellers are the owners of certain architectural designs and
concepts listed on Exhibit A attached hereto (collectively, the "Assets"). The
Sellers desire to sell to the Purchaser, and the Purchaser desires to purchase
from the Sellers, the Assets in accordance with the terms and conditions of this
Agreement.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 Subject to the terms and conditions of this Agreement, the Sellers
shall, in reliance upon the representations, warranties and covenants of the
Purchaser set forth in this Agreement, agree to sell, convey, grant, assign,
transfer and deliver to Purchaser and Purchaser shall, in reliance upon
representations, warranties and covenants of the Purchaser set forth in the
Agreement, agree to purchase and acquire, free and clear of any and all Liens,
all of Seller's right, title and interest in and to the Assets.
1.2 PURCHASE PRICE. Subject to the terms and conditions of this
Agreement, the Purchaser shall, in full consideration of the sale, conveyance,
grant, assignment, transfer and delivery by the Seller to the Purchaser of the
Assets, pay to the Seller a sum of One Million Dollars ($1,000,000.00) (the
"Purchase Price").
1.3 PAYMENT OF PURCHASE PRICE. Subject to terms and conditions of this
Agreement, the Purchaser shall at Closing (as defined below) pay the Sellers the
sum of One Million Dollars
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($1,00,000.00), allocated as provided in Schedule 1.3. All payment shall be made
by delivery of a certified check or wire transfer of immediately available funds
into an account designated in writing by the Sellers.
1.4 TIME AND PLACE. Subject to the terms and conditions of this
Agreement, the closing of the purchase and sale of the Assets (the "Closing")
shall commence at 9:00 a.m. on January 31, 1997, or on a date selected by the
parties as seen thereafter as the conditions to Closing shall be satisfied or
waived as provided for herein, at the offices of Akerman, Senterfitt & Xxxxxx,
P.A., One Southeast Third Avenue, 28th Floor, Miami, Florida, or such other time
and place as the parties may otherwise agree. The time and date of the Closing
are referred to herein as the "Closing Date."
1.5 DELIVERY OF ASSETS. At Closing, the Sellers shall duly execute and
deliver to the Purchaser any and all instruments of transfer of title as are
necessary to transfer to the Purchaser good, insurable and marketable title to
the Assets and shall deliver to the Purchaser immediate possession of the
Assets. The Sellers agree to execute and deliver to the Purchaser from time to
time such further and particular assignments, consents or other instruments as
the Purchaser may request as appropriate or desirable to confirm its title in
and to any and all of the Assets sold, conveyed and assigned to the Purchaser.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As a material inducement to the Sellers to enter into this Agreement
and to consummate the transactions contemplated hereby, the Purchaser makes the
following representations and warranties:
2.1 CORPORATE STATUS. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida.
2.2 CORPORATE POWER AND AUTHORITY. The Purchaser has the corporate
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The Purchaser has taken all actions necessary to authorize the execution and
delivery of this Agreement, the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby.
2.3 ENFORCEABILITY. This Agreement has been duly executed and delivered
by the Purchaser and constitutes a legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser 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.
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2.4 NO COMMISSIONS. The Purchaser 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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
As a material inducement to the Purchaser to enter into this Agreement
and to consummate the transactions contemplated hereby, the Sellers make the
following representations and warranties to the Purchaser:
3.1 POWER AND AUTHORITY. BBBA has the power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. BBBA has taken all actions
necessary to authorize the execution and delivery of this Agreement, the
performance of its obligations hereunder and the consummation of the
transactions contemplated hereby. Xxxxxxx is an individual with the requisite
competence and authority to execute and deliver this Agreement, to perform his
obligations hereunder and to consummate the transactions contemplated hereby.
3.2 ENFORCEABILITY. This Agreement has been duly executed and delivered
by each of the Sellers and constitutes the legal, valid and binding obligation
of each of the Sellers, enforceable against each of the Sellers 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.
3.3 NO VIOLATION. The execution and delivery of this Agreement by the
Sellers, the performance by the Sellers of their respective obligations
hereunder and the consummation by the Sellers of the transactions contemplated
by this Agreement will not (i) 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 the Sellers or the Assets; (ii) 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 the Sellers or the Assets; (iii) result in or require the creation or
imposition of any Lien upon or with respect to any of the Assets; or (iv)
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 filings required to be made by the Purchaser.
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3.4 NO COMMISSIONS. The Sellers have 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.
3.5 LIABILITIES OF THE SELLERS. The Sellers do not have any liabilities
or obligations, whether accrued, absolute, contingent or otherwise which would
preclude or otherwise prevent such Sellers from selling, conveying, granting,
assigning, transferring and delivering to the Purchaser, free and clear of any
and all Liens, the Assets.
3.6 LITIGATION. There is no action, suit or other legal or
administrative proceeding or governmental investigation pending, threatened,
anticipated or contemplated against, by or affecting the Sellers or the Assets,
or which question the validity or enforceability of this Agreement or the
transactions contemplated hereby, and there is no basis for any of the
foregoing. There are no outstanding orders, decrees, stipulations or agreements
issued by any Governmental Authority in any proceeding to which the Sellers are
or were a party which have not been complied with in full or which continue to
impose any material obligations on the Sellers.
3.7 GOOD TITLE, ADEQUACY AND CONDITION. The Sellers have, and at
Closing will have, good and marketable title to the Assets with full power to
sell, convey, grant, assign, transfer and deliver the same, free and clear of
any Lien. The Sellers have full legal right, title and interest to the Assets,
and the use by the Sellers of the Assets does not infringe or misappropriate,
and the Seller has no knowledge of or received any communications asserting that
such use infringes or misappropriates, any rights of any third party. None of
the Assets has been declared invalid or unenforceable, or is the subject of any
pending or threatened action for opposition, cancellation, declaration,
infringement or invalidity, unenforceability or misappropriation of the claim,
action or proceeding, and no person is infringing on any of the Assets. The
Sellers covenant and agree that they will warrant and defend the title to the
Assets hereby sold to the Purchaser, its successors and assigns, against the
claims, demands and charges of all persons whomsoever.
3.8 COMPLIANCE WITH LAWS. The Sellers are and have been in compliance
in all material respects with all laws, regulations and orders applicable to
them and the Assets.
3.9 ACCURACY OF INFORMATION FURNISHED BY THE SELLERS TO THE PURCHASER.
No representation, statement or information made or furnished by the Sellers to
the Purchaser or any of the Purchaser's representatives, including those
contained in this Agreement and other information and statements referred to
herein and previously furnished by the Sellers, contains or shall contain any
untrue statement of a material fact which would make such information or
statements misleading.
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ARTICLE IV
CERTAIN AGREEMENTS AND COVENANTS OF THE PARTIES
4.1 FURTHER ASSURANCES. Each party to this Agreement shall execute and
deliver 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 and to satisfy the conditions set forth in Articles V and VI. Each of the
parties agrees to cooperate with the others in the preparation and filing of all
forms, notifications, reports and information, if any, required or reasonably
deemed advisable pursuant to any applicable law in connection with the
transactions contemplated by this Agreement, and to use its best efforts to
agree on a method to overcome any objections by any Governmental Authority to
any such transactions. Each of the parties also agrees 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.
4.2 ACCESS TO INFORMATION. From the date hereof to the Closing Date,
the Sellers shall (and shall cause its directors, officers, employees, auditors,
counsel and agents) afford the Purchaser and the Purchaser's officers,
employees, auditors, counsel and agents reasonable access at all reasonable
times to its partners and/or 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 the
Purchaser shall affect any representation or warranty in this Agreement.
4.3 NOTIFICATION OF CERTAIN MATTERS. The Sellers shall give prompt
notice to the Purchaser of the occurrence or non-occurrence of any event which
would likely cause any representation or warranty contained herein to be untrue
or inaccurate, or any covenant, condition or agreement contained herein not to
be complied with or satisfied.
4.4 CONFIDENTIALITY; PUBLICITY. Except as may be required by law or as
otherwise permitted or expressly contemplated herein, no party hereto or its
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 the Purchaser 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 a securities exchange (in which case the Purchaser will consult
with the Sellers prior to making such disclosure).
4.5 NO OTHER DISCUSSIONS. The Sellers and its employees, agents and
representatives will not (i) initiate, encourage the initiation by others of
discussions or negotiations with third parties or respond to solicitations by
third persons relating to sale or other disposition of the Assets or (ii)
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enter into any agreement or commitment (whether or not binding) with respect to
the foregoing transaction. The Sellers will immediately notify the Purchaser if
any third party attempts to initiate any solicitation, discussion or negotiation
with respect to the foregoing transaction.
4.6 COVENANT NOT TO COMPETE. The Sellers agree that for the
period of three (3) years immediately following the Closing Date, the Sellers
will not, directly or indirectly:
(a) alone or as a partner, joint venturer, officer,
director, employee, consultant, agent, independent contractor or security holder
of any Person, engage in any business activity at any location in the United
States of America, which is engaged in developing, owning, or operating ice
rinks and their related facilities or the operation of the twin pad ice rink
which is directly or indirectly in competition with the business of the
Purchaser or its subsidiary; provided, however, that the beneficial ownership of
less than five percent (5%) of any class of securities of any entity having a
class of equity securities actively traded on a national securities exchange or
the Nasdaq Stock Market shall not be deemed, in and of itself, to violate the
prohibitions of this Section; provided, further, that the providing of
architectural services and designs by the Seller for professional arenas with
seating capacity of at least 3,000 spectators or stadiums in the United States
shall not be deemed to violate covenants contained herein. The provision of
architectural services and/or designs by the Seller or by Xxxxxxx Xxxxx Xxxxxx,
Architects (i) to any person or entity for any ice skating rinks used primarily
for commercial public skating anywhere in the State of Florida, or (ii) to any
person or entity that is in the business, directly or indirectly (by one or more
affiliates), of developing commercial ice skating rinks anywhere in the United
States, shall be deemed to violate covenants contained herein, excepting rinks
containing more than 3,000 spectator seats;
(b) (i) induce, solicit or accept for or on behalf of any
Person any contact, agreement, relationship or business activity which may in
any manner affect or diminish in any way, the Predevelopment Rights; (ii) induce
any customer acquired hereunder or any other customer of the Purchaser or any of
its subsidiaries to patronize any business which is directly or indirectly in
competition with the Purchaser and its subsidiaries; (iii) canvass, solicit or
accept for or on behalf of any such competitive business any customer of the
Purchaser or any of its subsidiaries; or (iv) request or advise any customer of
the Purchaser or any of its subsidiaries to withdraw, curtail or cancel any such
customer's business with the Purchaser or any of its subsidiaries or their
successors;
(c) employ any person who was employed by the Purchaser or
any subsidiary of the Purchaser, within six months prior to the date being
employed by the Sellers, or in any manner seek to induce any employee of the
Purchaser or any of its subsidiaries to leave his or her employment; and
(d) in any way utilize, disclose, copy, reproduce or retain
in his possession any of the proprietary rights, or records acquired by
Purchaser hereunder.
The Sellers agree and acknowledge that the restrictions contained in this
Section are reasonable in scope and duration, and are necessary to protect the
Purchaser. If any provision of this Section is adjudged by a court of competent
jurisdiction to be invalid or unenforceable, the same will in no way
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affect the validity or enforceability of the remainder of this Agreement. If any
such provision, or any part thereof, is held to be unenforceable because of the
duration of such provision, the area covered thereby or otherwise, then the
parties agree that the court making such determination shall have the power to
reduce the duration, area or scope of such provision, and/or to delete specific
words or phrases, and in its reduced or modified form, such provision shall then
be enforceable and shall be enforced. The Sellers further agree and acknowledge
that any breach of this Section will cause irreparable injury to the Purchaser
and upon any breach or threatened breach of any provision of this Section, the
Purchaser shall be entitled to injunctive relief, specific performance or other
equitable relief, without the necessity of posting bond; provided, however, that
this shall in no way limit any other remedies which the Purchaser may have as a
result of such breach, including the right to seek monetary damages.
4.7 DUE DILIGENCE INVESTIGATION. The Purchaser shall be entitled to
conduct, prior to Closing, a due diligence investigation of the Sellers and the
Assets. The Sellers shall provide the Purchaser and its designated agents and
consultants with access to the Assets and all books, records, documents,
correspondence and other materials related thereto which the Purchaser, its
agents and consultants require to conduct such due diligence review. If the
results of the Purchaser's due diligence review are not satisfactory to the
Purchaser in its sole discretion, then the Purchaser may elect not to close the
transactions contemplated by this Agreement.
4.8 FILINGS. The Purchaser and the Sellers shall make, on a prompt and
timely basis, all governmental or regulatory notifications and filings required
to be made by them for the consummation of the transactions contemplated hereby
and each agree to cooperate with the other in the preparation and filing of all
forms, notifications, reports and information, if any, required or reasonably
deemed advisable pursuant to any requirements of applicable law or the
requirements of the SEC and/or the Nasdaq National Market in connection with the
transactions contemplated by this Agreement.
4.9 PUBLIC ANNOUNCEMENTS. The form and content of all press releases or
other public communications of any sort relating to the subject matter of this
Agreement, and the method of their release, or publication thereof, shall be
subject to the prior approval of the parties hereto, which approval shall not be
unreasonably withheld or delayed.
4.10 CONSENT TO JURISDICTION. Each party hereto irrevocably submits to
the jurisdiction of the Circuit Court of the State of Florida, Broward County,
in any action or proceeding arising out of or relating to this Agreement, and
each party hereby irrevocably agrees that all claims in respect of any such
action or proceeding must be brought and/or defended in such court; provided
however, that matters which are under the exclusive jurisdiction of the federal
courts shall be brought in the Federal District Court for the Southern District
of Florida. Notwithstanding the foregoing, the Sellers or the Purchaser may
remove to a federal court any action in which either is a defendant. Each party
hereto consents to service of process by any means authorized by the applicable
law of the forum in any action brought under or arising out of this Agreement,
and each party irrevocable waives, to the
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fullest extent each may effectively do so, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
4.11 OTHER AGREEMENTS. Purchaser and BBBA may mutually agree from time
to time after the Closing for the engagement of BBBA to provide architectural
services in the future for the development or modification of ice rinks on
mutually acceptable terms.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER
The obligations of the Purchaser to effect the transactions
contemplated hereby 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 Purchaser:
5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE WITH
OBLIGATIONS. The representations and warranties of the Sellers 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 that those representations and warranties which address matters only
as of a particular date shall remain true and correct as of such date. The
Sellers 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. Each of the Sellers shall have delivered to the Purchaser a certificate,
dated as of the Closing Date, certifying that such representations and
warranties are true and correct and that all such obligations have been
performed and complied with.
5.2 NO DESTRUCTION OF PROPERTY. Between the date hereof and the Closing
Date, 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 Sellers or the Assets, and there shall have been delivered to
the Purchaser a certificate to that effect, dated the Closing Date, duly signed
by each of the Sellers.
5.3 DELIVERY OF ASSETS. At Closing, the Sellers shall duly execute and
deliver to the Purchaser any and all instruments of transfer of title as are
necessary to transfer to the Purchaser good, insurable and marketable title to
the Assets and shall deliver to the Purchaser immediate possession of the
Assets.
5.4 CONSENTS. The Sellers shall have received consents to the
transactions contemplated hereby and waivers of rights to terminate or modify
any material rights or obligations of the Sellers from any person from whom such
consent or waiver is required under any Contract to which the Sellers or the
Assets are bound 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 Contract, either by the terms thereof or as a
matter of law.
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5.5 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 hereby, and which, in the judgment of the
Purchaser, makes it inadvisable to proceed with the transactions contemplated
hereby.
5.6 OPINION OF COUNSEL. The Purchaser shall have received an opinion of
counsel satisfactory to the Purchaser pertaining to the validity and
enforceability of the sale and transfer of the Assets.
5.7 DUE DILIGENCE REVIEW. The Purchaser shall have had adequate
opportunity to complete its due diligence review of the Seller and the Assets
pursuant to Section 4.6 and shall be satisfied with the results of such review
and assessment.
5.8 CROSS CONTINGENCY. Closing of the transactions contemplated by this
Agreement shall be contingent upon the closing of the transactions contemplated
by the Rink Agreement and the Xxxxxxx Agreement.
ARTICLE VI
CONDITIONS TO THE
OBLIGATIONS OF THE SELLERS
The obligations of the Sellers to effect the transactions contemplated
hereby 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 Sellers:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE WITH
OBLIGATIONS. The representations and warranties of the Purchaser 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 that those representations and warranties which address matters only
as of a particular date shall remain true and correct as of such date. The
Purchaser shall have performed and complied in all material respects with all of
its obligations required by this Agreement to be performed or complied with at
or prior to the Closing Date. The Purchaser shall have delivered to the Sellers
a certificate, dated as of the Closing Date, and signed by an executive officer
thereof, certifying that such representations and warranties are true and
correct, and that all such obligations have been performed and complied with, in
all material respects.
6.2 PAYMENT OF PURCHASE PRICE. At Closing, the Purchaser shall pay the
Purchase Price as provided in Section 1.2.
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6.3 CROSS CONTINGENCY. Closing of the transactions contemplated by this
Agreement shall be contingent upon the closing of the transactions contemplated
by the Rink Agreement and the Xxxxxxx Agreement.
ARTICLE VII
INDEMNIFICATION
7.1 AGREEMENT BY SELLERS TO INDEMNIFY. The Sellers agree to, jointly
and severally, indemnify and hold the Purchaser harmless from and against the
aggregate of all expenses, losses, costs, deficiencies, liabilities and damages
(including, without limitation, related counsel and paralegal fees and expenses)
incurred or suffered by the Purchaser (collectively, "Indemnifiable Damages")
resulting from or arising out of (i) any breach of a representation or warranty
made by the Sellers in or pursuant to this Agreement; (ii) any breach of the
covenants or agreements made by the Sellers in this Agreement; (iii) any
inaccuracy in any certificate delivered by the Sellers pursuant to this
Agreement; and (iv) the Sellers' ownership or operation of the Assets prior to
Closing. Without limiting the generality of the foregoing with respect to the
measurement of Indemnifiable Damages, the Purchaser shall have the right to be
put in the same pre-tax consolidated financial position as it would have been in
had each of the representations and warranties of the Seller hereunder been true
and correct.
7.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Sellers in this Agreement or pursuant
hereto shall survive the Closing of the transactions contemplated hereby.
Notwithstanding any knowledge of facts determined or determinable by any party
by investigation, each party shall have the right to fully rely on the
representations, warranties, covenants and agreements of the other parties
contained in this Agreement or in any other documents or papers delivered in
connection herewith. Each representation, warranty, covenant and agreement of
the parties contained in this Agreement is independent of each other
representation, warranty, covenant and agreement.
7.3 NO BAR. If the Escrow Amount is insufficient to set off any claim
for any Indemnifiable Damages hereunder (or has been delivered to the Seller
prior to making or resolution of such claim), then the Purchaser may take any
action or exercise any remedy available to it by appropriate legal proceedings
to collect the Indemnifiable Damages.
ARTICLE VIII
DEFINITIONS
8.1 DEFINED TERMS. As used herein, the following terms shall have the
following meanings:
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"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.
"Contract" means any indenture, lease, sublease, license,
loan agreement, mortgage, note, indenture, restriction, will, trust,
commitment, obligation or other contract, agreement or instrument,
whether written or oral.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"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.
"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).
"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.
"SEC" means the Securities and Exchange Commission.
8.2 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) 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.
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ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
9.1 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; or
(b) by the Purchaser in the event of a material breach by
the Sellers of any provision of this Agreement; or
(c) by the Purchaser or the Sellers if the Closing shall
not have occurred by January 31, 1997.
9.2 EFFECT OF TERMINATION. Except as provided in Article IX, in the
event of termination of this Agreement pursuant to Section 9.1, this Agreement
shall forthwith become void; provided, however, that nothing herein shall
relieve any party from liability for the willful breach of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
ARTICLE X
GENERAL PROVISIONS
10.1 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered (and deemed
received if 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 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 PURCHASER:
Florida Panthers Ice Ventures, Inc.
000 X.X. Xxxxx Xxxxxx, 0xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
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WITH A COPY TO:
Akerman, Senterfitt & Xxxxxx, P.A.
SunTrust International Center
Xxx X.X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) IF TO ANY OF THE SELLERS:
Xxxxx Xxxxxxx
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxx X0X 0X0
Telecopy: (000) 000-0000
WITH A COPY TO:
Xxxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
10.2 ENTIRE AGREEMENT. This Agreement (including the Exhibits and the
Schedule 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. The
Exhibits and the Schedule constitute a part hereof as though set forth in full
above.
10.3 EXPENSES. Except as otherwise provided herein, the parties shall
pay their own fees and expenses, including their own counsel fees, incurred in
connection with this Agreement or any transaction contemplated hereby. The
Sellers hereby agrees to pay any and all sales and use taxes which may become
due and owing as a result of the completion of the transactions contemplated
hereby.
10.4 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
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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 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.
10.5 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 the Sellers without the prior written consent
of the Purchaser.
10.6 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.
10.7 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.
10.8 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.
10.9 ARM'S LENGTH NEGOTIATIONS. Each party herein expressly represents
and warrants to all other parties hereto that (i) before executing this
Agreement, said party has fully informed itself of the terms, contents,
conditions and effects of this Agreement; (ii) said party has relied solely and
completely upon its own judgment in executing this Agreement; (iii) said party
has had the opportunity to seek and has obtained the advice of counsel before
executing this Agreement; (iv) said party has acted voluntarily and of its own
free will in executing this Agreement; (v) said party is not acting under
duress, whether economic or physical, in executing this Agreement; and (vi) this
Agreement is the result of arm's length negotiations conducted by and among the
parties and their respective counsel.
* * * *
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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 ICE VENTURES, INC.,
a Florida corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
XXXXXXX XXXXX XXXXXX, ARCHITECTS, a
Canadian partnership
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Xxxxx Xxxxxxx
Partner
/s/ Xxxxx Xxxxxxx
--------------------------------------------
Xxxxx Xxxxxxx, individually
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