EXHIBIT 10.3
CONSENT AGREEMENT
This CONSENT AGREEMENT is made this 22 day of February, 2005 by and
among: (i) the National Hockey League, a joint venture organized as a
not-for-profit unincorporated association (the "NHL"); (ii) Nashville Hockey
Club Limited Partnership (the "Club"), Nashville Predators, LLC (the "GP"),
Craig L. Leipold ("CLL"), Estate of Samuel C. Johnson ("SCJ"), Helen P.
Johnson-Leipold ("HJL"), the Craig L. Leipold 2000 Special Trust f/b/o Jonathan
Kyle Leipold, the Craig L. Leipold 2000 Special Trust f/b/o Christopher Louis
Leipold, Linda Sturino, Jonathan Kyle Leipold, Christopher Louis Leipold, the
Helen Johnson-Leipold 2000 Special Trust f/b/o Bradford Powers Leipold, the
Helen Johnson-Leipold 2000 Special Trust f/b/o Samuel Curtis Johnson Leipold,
and the Helen Johnson-Leipold 2000 Special Trust f/b/o Conrad Werner Leipold
(the parties listed in this clause (ii), collectively, the "Club Parties"); and
(iii) Gaylord Entertainment Company f/k/a New Gaylord Entertainment Company
("Gaylord"), Gaylord Creative Group, Inc. ("GCG") and CCK Holdings, LLC (f/k/a
CCK, Inc.) ("CCK Holdings" and, together with Gaylord and GCG, the "Gaylord
Parties", and each of the parties listed in clauses (ii) and (iii) collectively,
the "Transaction Parties").
Background
(a) (i) The Club directly owns the NHL membership known as the
Nashville Predators (the "Membership").
(ii) Pursuant to certificates of conversion filed on December 10,
2002, a Plan of Conversion of CCK, Inc. dated December 11, 2002 (the "Plan of
Conversion") and an Assignment of Membership Interest dated December 11, 2002
between Gaylord and GCG (the "Assignment"), Gaylord purports to have: (A)
converted CCK, Inc. into CCK Holdings, and (B) transferred all of the membership
interests in CCK Holdings to GCG, its wholly-owned subsidiary (collectively, the
"Reorganization").
(iii) Pursuant to the Purchase Agreement dated February 22, 2005
among the Club, CCK Holdings and Gaylord (the "Purchase Agreement"), the Club
proposes to acquire and redeem in full from CCK Holdings, in exchange for the
consideration described in the Confidential Settlement Agreement and Full and
Complete Release dated as of December 30, 2004 among Gaylord, CCK Holdings and
the Club (the "Settlement Agreement"), all of CCK Holdings' 199 Partnership
Interests in the Club (the "Purchased Interest"), which represents a 19.9%
limited partnership interest in the Club (the "Redemption" and, together with
the Reorganization, the "Proposed Transactions").
(iv) Upon consummation of the Redemption, none of Gaylord, GCG, CCK
Holdings, nor any of their respective affiliates, will own a direct, indirect,
contingent or convertible interest in the Membership, and the direct and
indirect ownership interests in the Membership will be as set forth on
Schedule 1.
(b) The consent of the NHL Board of Governors is required for the
Proposed Transactions under the NHL Rules and Agreements (as hereinafter
defined).
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(c) Pursuant to the NHL Rules and Agreements, the parties have
furnished to the NHL copies of all documents relating to the Proposed
Transactions, a complete list of which is provided on Schedule 2 (the
"Transaction Documents").
(d) The NHL Board of Governors has approved the Proposed Transactions,
subject to certain terms and conditions, including the execution and delivery of
this Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. NHL Consent. Subject to the terms and conditions set forth in this
Agreement, the NHL hereby consents to the Proposed Transactions. The consent
granted herein is limited to the Proposed Transactions as specifically described
in paragraphs (ii) and (iii) of the Background section and does not extend to
any other transfer, sale, foreclosure, liquidation, wind-up, dissolution,
mortgage, hypothecation, pledge or other impairment or encumbrance of any assets
of, or direct or indirect ownership interests in, the Club, including, without
limitation: (a) notwithstanding any previous application for NHL approval, any
transfer of Samuel C. Johnson's limited partnership interests in the Club, (b)
notwithstanding any previous application for NHL approval, any issuance of
partnership interests in the Club made in connection with certain capital calls
on or about December 4, 2001, June 12, 2002, October 24, 2002, February 12,
2003, October 1, 2003 and February 16, 2004 (the "Capital Calls"), (c) any
capital contribution to the Club or to any other Transaction Party, (d) any
addition, replacement or substitution of a trustee or beneficiary of any Trust
(as defined in Section 5(d) below) or any other trust having a direct or
indirect interest in the Club or holding an NHL-related asset, or (e) any grant,
exercise, redemption or transfer of any put rights, call rights, options,
warrants, redemption rights or similar rights, or rights to change the
management (or the composition or control of any managing board) or voting
rights with respect to any Transaction Party (collectively, including the
Capital Calls, "Additional Transactions"), in each case, whether or not
contemplated by the Transaction Documents.
2. Performance of Agreements. The Transaction Parties agree to perform
all of the terms and conditions of the Transaction Documents applicable to each
of them, provided that if there is any conflict between their obligations under
the Transaction Documents and their obligations under the NHL Rules and
Agreements (including, without limitation, this Agreement), their obligations
under the NHL Rules and Agreements (including, without limitation, this
Agreement) shall prevail. The Transaction Parties jointly and severally agree
that, notwithstanding anything to the contrary in any Transaction Document, they
will not take any action that adversely affects the Club or impairs the debts,
liabilities and obligations of the Club.
3. NHL Rules and Agreements.
(a) The Club Parties jointly and severally agree to be bound by and
adhere to all of the terms and provisions of, and to cause their respective
affiliates to comply with: (A) the NHL Constitution, (B) the NHL Bylaws, (C) the
Expansion Agreement dated June 25, 1997, as amended by the Letter Agreement
dated May 1, 1998 (as amended, the "Expansion Agreement") and the Writings
referred to therein, (D) the governing documents of each of the NHL, NHL
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Enterprises, L.P., NHL Enterprises Canada, L.P., NHL Enterprises, Inc., National
Hockey League Enterprises Canada, Inc., Intra-Continental Ensurers, Limited, any
entity that may be formed by the NHL member clubs (the "Member Clubs") generally
after the date of this Agreement, and each of their respective affiliates
(together with the NHL, the "NHL Entities"), (E) the rules, regulations,
memoranda, resolutions, policies, procedures, interpretations and directives of
the governing body of each of the NHL Entities (including, without limitation,
the NHL Board of Governors) and the NHL Commissioner (the "Commissioner"), (F)
the letter agreement dated September 1, 2004 among the NHL, the Club, Citibank
USA, Inc., and others (the "Lender Agreement"), (G) any other Consent Agreement
among the NHL, the Club and one or more of the Transaction Parties, and (H) any
agreements and arrangements to which the Member Clubs generally or any of the
NHL Entities are (or after the date of this Agreement may become) subject or by
which they or their assets are (or after the date of this Agreement may become)
bound, including, without limitation, the current and/or future collective
bargaining agreements between the NHL and the National Hockey League Players'
Association and between the NHL and the National Hockey League Officials'
Association and all other agreements, consent agreements, decrees, cooperation
agreements and settlement agreements presently or hereafter in effect between or
among the NHL Entities, the Member Clubs and/or third parties (including,
without limitation, this Agreement); in each case as they may be amended or
adopted from time to time and including the Commissioner's interpretation
thereof and the custom and practice thereunder (collectively, the "NHL Rules and
Agreements").
(b) The Transaction Parties jointly and severally agree not to take or
support, and to cause their respective affiliates not to take or support, any
position or action which may be inconsistent with any of the NHL Rules and
Agreements or which may have a material adverse impact on any of the NHL
Entities or the other Member Clubs.
(c) Without limiting the generality of their respective covenants in
Section 6, the Transaction Parties jointly and severally agree not to challenge,
and to cause their respective affiliates not to challenge, at any time or in any
forum, any aspect of the NHL Rules and Agreements, which they have reviewed in
their current form and agree are fair and reasonable.
4. Ownership, Control and Capital Structure.
(a) The Club Parties jointly and severally represent to the NHL that
CLL is the chief executive officer and Governor of the Club, and that he is
responsible for and has the authority to manage the business and affairs of the
Club. The Club shall notify the Commissioner of any change in its Governor,
which change shall be reasonably satisfactory to the Commissioner. The NHL
Entities and Member Clubs may rely upon as binding upon the Club and the other
Transaction Parties any action of the Club's Governor with respect to any
communication, agreement, understanding, action, consent or other transaction
with or concerning the NHL Entities, the Member Clubs or their respective
affiliates.
(b) The Club Parties acknowledge and agree that:
(i) Any proposed sale, assignment, pledge, encumbrance or other
transfer of any assets of or direct or indirect ownership interests in the Club
(no matter how small
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the interest), including, without limitation, any Additional Transaction, shall
require prior approval in accordance with the NHL Rules and Agreements and, as a
condition precedent to such transfer, the Club, each transferring owner, each
transferee and such other parties as the NHL shall determine in its sole
discretion, shall be required to execute and deliver a consent agreement with
the NHL in the form of this Agreement or such other form as may then be required
by the NHL in its sole discretion.
(ii) Except as provided in the Lender Agreement, neither the Club
nor any of its direct or indirect owners (including the Club Parties) has
previously pledged, or shall pledge, the Membership, any of their direct or
indirect interests therein or any other hockey-related assets to secure any debt
obligation, or increase any approved secured debt obligation, without obtaining
the prior written approval of the Commissioner, which approval may be withheld
in the Commissioner's sole discretion, and without entering into (and causing
the applicable lender to enter into) a lender letter agreement in form and
substance satisfactory to the Commissioner.
(iii) No Transaction Document shall be rescinded, canceled,
terminated or amended in any respect which may or will affect the conditions,
obligations or duties set forth in this Agreement or under the NHL Rules and
Agreements or adversely affect the interests of the NHL Entities or the Member
Clubs without the prior written approval of the Commissioner, which approval may
be withheld in the Commissioner's sole discretion. The Commissioner shall be
notified in writing of any proposed change, whether or not the Commissioner has
consent rights with respect to the change, at least ten days before such change
is affected.
(iv) Without limiting the provisions of subsection (i) above, the
Club Parties shall not, nor shall they cause or permit, without the prior
written approval of the NHL, which approval may be withheld in the NHL's sole
discretion:
(A) the Club to change its status as a limited
partnership, the GP to change its status as a limited
liability company, or any other Club Party to change
its status as a corporation, limited partnership,
limited liability company or trust, as the case may
be;
(B) the Club, the GP or any other Club Party to
liquidate, dissolve or transfer a substantial part of
its assets to another entity if such assets include
an interest in, or as used in the operation of, the
Membership;
(C) a change in the general partner of the Club or in the
management authority of such general partner, whether
or not presently provided in the Agreement of Limited
Partnership of the Club (the "Partnership
Agreement"), or a change in ownership or control of
any other Club Party; or
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(D) any transfer or other transaction that will result in
a change, directly or indirectly, in the ownership or
management of the Membership or any Club Party.
(v) Each of the Club Parties that is an entity agrees that its
stock certificate, membership certificate, partnership certificate or other
document evidencing ownership, if any, bears a legend substantially as follows:
"The transfer, pledge or other disposition of [this
partnership interest][this membership interest][the stock
reflected by this certificate] is subject to the prior written
approval and consent of the National Hockey League pursuant to
the NHL Constitution and Bylaws and a certain Consent
Agreement dated _______, with the NHL."
(c) The Club Parties jointly and severally represent and warrant to the
NHL as follows:
(i) Any beneficiary of a Trust who has not executed this Agreement
(including, without limitation, Samuel Curtis Johnson Leipold, Bradford Powers
Leipold and Conrad Werner Leipold) is a minor who is legally incapable of
entering into enforceable agreements. When any such beneficiary attains the age
of majority, the Club Parties will cause such beneficiary to execute a
counterparty to this Agreement by which such beneficiary agrees to be bound by
each of the terms of this Agreement applicable to Club Parties.
(ii) Except as described on Schedule 4(c)(ii), no Club Party
presently has any intention of selling any part of his or its interest in the
Club, whether direct or indirect, or any of the assets of the Club, and there
are no options, warrants, put or call rights or any other rights of acquisition
or conversion that would entitle any person or entity to acquire any direct or
indirect interest, whether equity or otherwise, in the Club.
(iii) None of the Club Parties has received any representation,
commitment, promise, assurance or other indication of any kind with respect to
any future transfer of direct or indirect ownership or change in location of the
Membership.
5. Representations and Warranties. The Transaction Parties jointly and
severally represent and warrant to the NHL as follows:
(a) Each of the Transaction Parties that is an entity is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, and has the power and authority to own,
operate and lease its properties and to carry on its business.
(b) Each of the Transaction Parties has the power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
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(c) This Agreement constitutes a legal, valid and binding obligation of
each Transaction Party, enforceable against each of them in accordance with its
terms.
(d) Schedule 1 truly, accurately and completely sets forth the direct
and indirect ownership interests of the Club and each of its direct and indirect
owners as of the date hereof immediately following the consummation of the
Proposed Transactions, including each trustee and beneficiary of any trust that
owns a direct or indirect interest in the Club (a "Trust").
(e) On or about January 11, 2005, Gaylord's representatives first
advised the NHL and the Club that: (i) CCK, Inc. was converted into CCK Holdings
on December 10, 2002, (ii) CCK Holdings is a limited liability company organized
under the laws of the State of Delaware, (iii) on December 11, 2002, Gaylord
transferred all of the membership interests in CCK Holdings to GCG in accordance
with the terms of the Assignment, and (iv) at all times since December 11, 2002,
Gaylord has directly owned all of the outstanding capital stock of GCG and GCG
has directly owned all of the membership interests of CCK Holdings; all of which
required NHL approval under the Expansion Agreement and the NHL Rules (as
defined therein) prior to the consummation thereof, and, to the extent that such
transactions were in fact consummated, such consummation would constitute a
breach of the Expansion Agreement and a violation of the NHL Rules. Immediately
prior to the consummation of the Redemption, (x) CCK Holdings directly owned the
Purchased Interest, and (y) except for GCG and CCK Holdings, no other subsidiary
or affiliate of Gaylord owned any direct or indirect interest in the Club.
Immediately following the consummation of the Redemption, neither Gaylord, GCG,
CCK Holdings nor any of their respective affiliates will own any direct,
indirect, convertible or contingent interest in the Club.
(f) The ownership interests described in Schedule 1 are validly issued
and fully paid and are held free and clear of any liens, security interests,
pleadings, charges, encumbrances or claims of liability, except as provided in
the Lender Agreement.
(g) The transactions contemplated by the Transaction Documents will not
adversely affect the Membership or the operation or financial condition of the
Membership and will not in any way impair or adversely affect any debts,
liabilities or obligations of the Transaction Parties to any other party,
including, without limitation, to any of the NHL Entities or other Member Clubs
or to any players, coaches or other personnel.
(h) All consents, waivers, approvals, orders and authorizations of any
persons or entities or governmental or regulatory authorities that are required
in connection with the Proposed Transactions have been obtained and are in full
force and effect, and all registrations, declarations, filings or recordings
with any such authorities have been made.
(i) Each of the Transaction Parties has performed in all material
respects all obligations required to be performed by it to date with respect to
the Proposed Transactions and none of them is in default in any respect under
any contract, agreement, lease, or other instrument relating to the same to
which it is a party or by which it is bound. True and complete copies of all
documents described or referred to herein or in any schedule attached hereto,
including, without limitation, the Transaction Documents, have been delivered to
the NHL. The
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Transaction Documents constitute all of the material documents relating to the
Proposed Transactions. All information furnished by or on behalf of the
Transaction Parties in connection with the request for approval of the Proposed
Transactions is true and correct in all material respects and has not contained
any material misstatement or omitted any material statement which would make
such information not misleading.
(j) The execution and delivery of the Transaction Documents and this
Agreement, and compliance with the terms thereof and hereof by each Transaction
Party, will not conflict with, or result in the breach of, any of the terms,
conditions or provisions of, or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any of the properties or assets
of any of them pursuant to, any indenture, mortgage, lease, agreement or other
instrument to which any of them is a party or by which any of them is bound.
(k) There is no action, suit or proceeding pending or, to the best of
the knowledge of any Transaction Party, threatened against any Transaction Party
any other party which could reasonably be expected to result in any adverse
judgment or liability not fully covered by insurance or which may have a
material adverse effect on the business, properties or assets or in the
condition, financial or otherwise, or public image of the Membership or any
Transaction Party or which may prevent or impede the consummation of any of the
Proposed Transactions. There is no order, writ, injunction or decree that has
been issued by, or, to the knowledge of any Transaction Party, requested by, any
court or governmental agency which does or may have any material adverse effect
on the business, properties or assets or in the condition, financial or
otherwise, or public image of the Membership or any Transaction Party or which
may prevent or impede the consummation of any of the Proposed Transactions.
(l) To the best of the knowledge of each of the Transaction Parties,
each is in compliance in all material respects with all applicable laws,
regulations and ordinances and all orders, judgments and decrees of any
governmental authority.
(m) Except as provided in the Lender Agreement, none of the assets of
or direct or indirect ownership interests in the Club (including, without
limitation, the Purchased Interest or any portion thereof) is pledged to secure
any debt or obligation of any person or entity. The Membership and all other
hockey-related assets are owned directly by the Club.
(n) If the Capital Calls had previously been consummated (it being
acknowledged and agreed by the Transaction Parties that: (i) none of the Capital
Calls has previously been approved by the NHL, and (ii) under the Expansion
Agreement and the NHL Rules (as defined therein), the Capital Calls must be
approved by the NHL as a condition precedent to their consummation), CCK
Holdings' 199 Partnership Interests in the Club would represent an approximately
10.10% limited partnership interest in the Club.
6. Release and Limitation of Liability.
(a) In partial consideration for the NHL providing the consents
contained herein, the Transaction Parties, on their own behalf and on behalf of
their respective affiliates, heirs, executors, administrators, trustees, legal
representatives, successors and assigns, hereby
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forever release and discharge each of the NHL Entities and Member Clubs (except
the Club, but including all future member clubs of the NHL) and each of their
respective predecessors, affiliates, successors and assigns, and each of their
respective past, present or future, direct or indirect, owners, partners,
shareholders, members, managers, directors, officers, agents, trustees,
employees, affiliates, subsidiaries and governors (whether acting as agents for
the NHL Entities, Member Clubs or in their individual capacities) (collectively,
"Affiliated NHL Parties") from any and all claims, demands, causes of action and
liabilities of any kind (upon any legal or equitable theory, whether
contractual, common-law, statutory, decisional, Canadian, United States,
foreign, state, provincial, local or otherwise), whether known or unknown
(collectively, "Claims"), by reason of any act, omission, transaction or
occurrence taken or occurring at any time up to and including the date of this
Agreement (including, without limitation, any Claims, facts or circumstances
arising from or attributable or relating to the Litigation (as defined in the
Settlement Agreement), including the parties' failure to consummate CCK
Holdings's exercise of its put option under the Partnership Agreement (the "Put
Option")), except for those amounts, if any, which may be due to the Club in the
ordinary course of NHL business.
(b) The Affiliated NHL Parties shall have no liability to the
Transaction Parties for any actions taken or not taken following the date hereof
on behalf of an NHL Entity or a Member Club or otherwise in connection with the
business of the NHL, provided that such actions do not constitute willful
misconduct. Accordingly, the Transaction Parties, on their own behalf and on
behalf of their respective affiliates, heirs, executors, administrators,
trustees, legal representatives, successors and assigns: (i) covenant not to sue
any Affiliated NHL Party in connection with or assert, and agree to cause their
respective affiliates not to sue any Affiliated NHL Party in connection with or
assert, any claims, demands, causes of action or liabilities of any kind which
they or any other party may hereafter have in connection with any acts taken or
not taken following the date of this Agreement by any Affiliated NHL Party,
provided that such actions are taken by the Affiliated NHL Party on behalf of an
NHL Entity or a Member Club and do not constitute willful misconduct on the part
of the Affiliated NHL Party taking such action, and (ii) release and indemnify,
and agree to cause their respective affiliates to release and indemnify, the
Affiliated NHL Parties from such claims, demands, causes of action, and
liabilities.
(c) Without limiting any other rights the Affiliated NHL Parties may
have, and without limiting any Transaction Party's affirmative obligation to pay
the amounts referenced in this Agreement, the Transaction Parties jointly and
severally agree to indemnify and hold harmless each of the Affiliated NHL
Parties from and against any and all losses, obligations, claims, liabilities,
fines, penalties, damages, costs and expenses (including, without limitation,
reasonable costs of investigation and settlement and attorneys' fees, including
in actions between any of such parties and any of the Affiliated NHL Parties)
(collectively, "Losses") incurred or required to be paid by an Affiliated NHL
Party, arising out of, attributable to or relating to: (i) the proposed exercise
of the Put Option or any transaction related to the Put Option or CCK Holdings'
exercise thereof, (ii) any Proposed Transaction or any other transaction
contemplated in the Transaction Documents or relating to any Proposed
Transaction (including, without limitation, any of the transactions contemplated
by the Settlement Agreement), (iii) any breach of any warranty or covenant or
any misrepresentation in this Agreement by any Transaction Party, or (iv) any
act, omission, liability or obligation (including,
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without limitation, all obligations set forth in this Agreement) of any
Transaction Party or any of their respective past, present or future, direct or
indirect, owners, partners, shareholders, members, managers, directors,
officers, agents, trustees, employees, affiliates, subsidiaries and governors.
(d) Nothing contained in this Agreement shall be, or be construed or
deemed to be, a subordination by any NHL Entity of such NHL Entity's rights: (i)
to receive payments on account of indebtedness or liabilities now or hereafter
owing to any NHL Entity by the Club or any other person or entity or (ii) to
defer or off-set any distribution to the Club; all of such rights hereby being
confirmed and affirmed. Nothing in this Agreement shall be construed in any
respect as a guaranty or indemnity by any NHL Entity, or any of the Member
Clubs, of any debts, liabilities or obligations of any Transaction Party or any
other party.
7. Additional Provisions.
(a) The Transaction Parties agree, in accordance with the third
paragraph of Article 3.5 of the NHL Constitution, that all legal fees and costs
incurred by the NHL with respect to the Proposed Transactions shall be charged
to the Club and shall be the obligation of the Club.
(b) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, including but
not limited to, any corporation or other business entity into which any party
shall be merged, consolidated or amalgamated or to which substantially all of
the assets of a party shall be transferred, in each case in accordance with the
NHL Rules and Agreements. No Transaction Party may assign any of its rights or
delegate any of its duties under this Agreement without the written consent of
the NHL. Notwithstanding anything in any Transaction Document to the contrary,
any dispute between or among the parties relating to the subject matter hereof
shall be deemed to be a dispute which shall be resolved in accordance with
Section 6.3 of the NHL Constitution and the Commissioner shall have full and
exclusive jurisdiction and authority to arbitrate and resolve such dispute.
(c) Any notice or other communication under this Agreement shall be in
writing and shall be considered given when delivered personally or sent by
facsimile (with a copy by any other means permitted for the giving of notices
under this section), one day after being sent by a reputable overnight courier,
or three days after being mailed by registered or certified mail, postage
prepaid, return receipt requested, as follows:
If to the NHL or the National Hockey League
Commissioner: 1251 Avenue of the Americas
New York, New York 10020-1198
Attention: General Counsel
Facsimile: (212) 789-2050
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with a copy to: Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Attention: Wayne D. Katz, Esq.
Facsimile: (212) 969-2900
If to any Club Party: c/o Nashville Predators
501 Broadway
Nashville, Tennessee 37203
Attention: Craig L. Leipold
Facsimile: (615) 770-2309
with a copy to: Sherrard & Roe PLC
424 Church Street, Suite 2000
Nashville, Tennessee 37219
Attention: Christopher C. Whitson, Esq.
Facsimile: (615) 742-4539
with an additional copy, McDermott, Will & Emery
in the case of any Club 227 West Monroe
Party other than the Club, Chicago, Illinois 60606-5096
the GP, CLL or HJL, to: Attention: William J. Butler, Esq.
Facsimile: (312) 984-7700
If to any Gaylord Party: c/o Gaylord Entertainment Company
One Gaylord Drive
Nashville, Tennessee
Attention: Carter Todd
Facsimile: (615) 316-6544
or to such other address as a party shall designate from time to time by like
notice.
(d) Except as set forth in the following sentence, Agreement and the
exhibits and schedules annexed hereto and made a part hereof contain the entire
agreement among the parties with respect to the Proposed Transactions and
supersede all prior agreements or understandings among the parties relating to
any of the Proposed Transactions. Notwithstanding anything to the contrary in
this Agreement, nothing in this Agreement shall be construed to amend or
terminate any of the terms or provisions of: (i) the Expansion Agreement and the
Writings referred to therein, including, without limitation, the Guaranty dated
June 25, 1997 (the "Guaranty"), except as expressly provided in Section 7(o)
with respect to the Guaranty, or (ii) the Lender Agreement, each of which is
hereby affirmed and confirmed and shall, subject to Section 7(o) with respect to
the Guaranty, remain in full force and effect. This Agreement shall not be
modified, supplemented, or terminated orally, and shall be governed by the laws
of the State of New York applicable to agreements made and to be performed
entirely in New York. It is acknowledged and agreed that the NHL will suffer
immediate and irreparable harm in the
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event of a breach of this Agreement by any other party hereto of any of such
party's obligations hereunder and will not have an adequate remedy at law and,
therefore, the NHL shall, in addition to any other remedy available to it at law
or in equity, be entitled to temporary, preliminary and permanent injunctive
relief and a decree for specific performance in the event of a breach or
threatened or attempted breach, without the necessity of showing any actual
damage or irreparable harm or the posting of any bond or furnishing of any other
security. This Agreement shall be interpreted neutrally and without regard to
the party that drafted it and, in particular, no rule of construction shall be
applied as against any party that would result in the resolution of an ambiguity
contained herein against the drafting party.
(e) No delay or failure on the part of any party to exercise any right,
power or remedy under this Agreement shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or remedy preclude any
other or further exercise thereof or of any other right, power or remedy. No
waiver by any party of another party's compliance with the provisions of this
Agreement shall be effective unless set forth in a writing signed by the party
granting such waiver, and no waiver of any provision on any one occasion shall
constitute a waiver of such provision or any other provision on any subsequent
occasion.
(f) Except as otherwise expressly provided in this Agreement, any
representation, covenant or agreement may be waived, amended, consented to or
otherwise approved by the NHL, on the one hand, and the particular party other
than the NHL to which such representation, covenant or agreement applies, on the
other hand, without the consent or approval of any other party. By way of
illustration and not limitation, changes in any party's direct or indirect
ownership of the Club may, for all purposes of this Agreement, be consented to
by such party and the NHL without the consent of any other party.
(g) The Transaction Parties acknowledge and agree that the failure by
any Transaction Party to comply with any of the provisions of this Agreement
shall constitute a material breach of this Agreement which entitles the NHL to
take action permitted by the NHL Rules and Agreements and/or this Agreement.
Said action includes, in addition to any and all other rights to which the NHL
shall be entitled under this Agreement or otherwise, the right of the NHL to
commence termination proceedings under Article III of the NHL Constitution and
such other remedies as may be provided by law or in equity for the breach of a
material obligation. No party shall attempt to prevent the NHL's exercise of
such rights on the basis that the NHL cannot exercise dominion or control over
its allocable share of the rights or assets that are the subject of the NHL's
actions because it was not the breaching party.
(h) The Transaction Parties acknowledge and agree that the NHL has
reviewed the Transaction Documents that have been supplied to it for certain
limited purposes only and that the NHL is not charged with knowledge of, or
deemed to have any independent obligations under, any of the Transaction
Documents. Notwithstanding anything contained in any Transaction Document
(whether to the contrary or otherwise), in the event of any conflict or
ambiguity between any term or provision contained in this Agreement and any term
or provision of any Transaction Document, the terms of this Agreement shall
control and all such conflicts or ambiguities shall be resolved in a manner that
will provide the NHL with the maximum protection that may be afforded to it.
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(i) The section headings of this Agreement are for convenience of
reference only and shall be given no effect in the construction or
interpretation of this Agreement.
(j) This Agreement does not create, and shall not be construed as
creating, any rights enforceable by any person not a party to this Agreement
(except for the NHL Entities and as provided in Section 6).
(k) If any provision of this Agreement shall be deemed invalid or
unenforceable by a court having jurisdiction, the balance of this Agreement
shall remain in effect and shall be enforced to the maximum extent permitted by
law.
(l) As used in this Agreement, the term "affiliate" means, with respect
to a specified person or entity: (i) any other person or entity directly or
indirectly controlled by, controlling, or under common control with the
specified person or entity, and (ii) any family member of the specified person
or trust for the benefit of one or more family members of the specified person.
(m) Subject to the last sentence of Section 7(b), the courts of New
York State located in New York County and the United States District Court for
the Southern District of New York located in New York County shall have
exclusive jurisdiction over the parties (and the subject matter) with respect to
any dispute or controversy arising under or in connection with this Agreement,
and by execution of this Agreement, each Transaction Party submits to and
accepts the exclusive jurisdiction of those courts and irrevocably agrees to be
bound by any final judgment rendered thereby in connection with this Agreement
or any matter affecting the Club, in general. A summons or complaint in any such
action or proceeding may be served in accordance with Section 7(c). Each
Transaction Party irrevocably waives any objection, including, without
limitation, any objection to the laying of venue or based on the grounds of
forum non conveniens, which it or he may now or hereafter have to the bringing
of any such action or proceeding in any such jurisdiction.
(n) Whenever the context may require, any pronoun shall include the
corresponding masculine and feminine forms.
(o) Notwithstanding anything to the contrary in the Guaranty, neither
Gaylord nor CCK Holdings shall be responsible under the Guaranty for any debt,
obligation or liability of the Club that arises from any act, omission or
circumstance that occurs after the date hereof.
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(p) This Agreement may be executed in counterparts, which together
shall constitute one and the same instrument.
NATIONAL HOCKEY LEAGUE
By: /s/ David Zimmerman
-----------------------------------
Name: David Zimmerman
Title: Senior Vice President
General Counsel
Transaction Parties:
NASHVILLE HOCKEY CLUB LIMITED
PARTNERSHIP
By: Nashville Predators, LLC, its
general partner
By: /s/ Edward F. Lang
--------------------------------------
Name: Edward F. Lang
Title: EVP
NASHVILLE PREDATORS, LLC
By: /s/ Edward F. Lang
--------------------------------------
Name: Edward F. Lang
Title: EVP
/s/ Craig L. Leipold
-----------------------------------------
Craig L. Leipold
ESTATE OF SAMUEL JOHNSON
By: /s/ Imogene P. Johnson
--------------------------------------
Name: Imogene P. Johnson
Title: Co-Trustee/Co Personal Representative
Johnson Bank as Co-Trustee/Co Personal
Representative
By: /s/ Brian Lucareli
--------------------------------------
Authorized Officer
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/s/ Helen P. Johnson Leipold
-----------------------------------------
Helen P. Johnson Leipold
/s/ Jonathan Kyle Leipold
-----------------------------------------
Jonathan Kyle Leipold
/s/ Chris Leipold
-----------------------------------------
Chris Leipold
/s/ Linda Sturino
-----------------------------------------
Linda Sturino
THE CRAIG L. LEIPOLD 2000 SPECIAL TRUST
F.B.O. JONATHAN KYLE LEIPOLD
By: /s/ Linda Sturino
--------------------------------------
Name: Linda Sturino
Title: Trustee
THE CRAIG L. LEIPOLD 2000 SPECIAL TRUST
F.B.O. CHRISTOPHER LOUIS LEIPOLD
By: /s/ Linda Sturino
--------------------------------------
Name: Linda Sturino
Title: Trustee
THE HELEN JOHNSON-LEIPOLD 2000
SPECIAL TRUST F/B/O CONRAD WERNER LEIPOLD
By: /s/ Linda Sturino
--------------------------------------
Name: Linda Sturino
Title: Trustee
14
THE HELEN JOHNSON-LEIPOLD 2000
SPECIAL TRUST F/B/O SAMUEL CURTIS
JOHNSON LEIPOLD
By: /s/ Linda Sturino
-------------------------------------
Name: Linda Sturino
Title: Trustee
THE HELEN JOHNSON-LEIPOLD 2000
SPECIAL TRUST F/B/O BRADFORD POWERS
LEIPOLD
By: /s/ Linda Sturino
--------------------------------------
Name: Linda Sturino
Title: Trustee
GAYLORD ENTERTAINMENT COMPANY
By: /s/ Carter R. Todd
--------------------------------------
Name: Carter R. Todd
Title: SVP
GAYLORD CREATIVE GROUP, INC.
By: /s/ Carter R. Todd
-------------------------------------
Name: Carter R. Todd
Title: VP
CCK HOLDINGS, LLC
By: /s/ Carter R. Todd
-------------------------------------
Name: Carter R. Todd
Title: V.P.
15