1
EXHIBIT 10.11
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 and its assignees (the "Purchaser"); ICELAND (CORAL SPRINGS) CORP.,
a Delaware corporation ("Iceland"), and ICELAND HOLDINGS, INC., a Delaware
corporation ("IHI"; IHI and Iceland, together with all of their respective
shareholders, hereinafter collectively referred to as the "Sellers"); and BRIAN
BRISBIN, a Canadian citizen and resident of Toronto, Ontario ("Brisbin").
Certain other capitalized terms used herein are defined in Article XI and
throughout this Agreement.
RECITALS
A. Iceland is in the business of developing, owning, operating and
managing community ice skating rinks and their related facilities for commercial
public skating in the United States.
B. Iceland is a limited partner in Coral Springs Ice, Ltd., a Florida
limited partnership ("CSIL"). CSIL is a party to a Concession Agreement (the
"Concession Agreement") with the City of Coral Springs, Florida (the "City")
pursuant to which the City granted to CSIL, for an initial term of forty-nine
(49) years, the exclusive use of certain City owned property for the development
and operation of a multi-use and multi-user ice rink and CSIL agreed to design,
develop, construct and operate a twin pad ice rink on such property in Coral
Springs, Florida (the "Coral Springs Facility").
C. CSIL has substantially completed its construction and development of
the Coral Springs Facility, has received a temporary certificate of occupancy
and all other permits, licenses and other governmental and regulatory approvals
necessary for use, operation and conduct of its Business at the Coral Springs
Facility, except that no liquor license has yet been issued for the Coral
Springs Facility. In developing the Coral Springs Facility, CSIL incurred
approximately $8,000,000 in debt and such debt shall in no event exceed
$8,050,000 in the aggregate (the "CSIL Debt"). The CSIL Debt is comprised of the
obligations owed solely to the parties and approximately in the amounts set
forth on Exhibit "A" attached hereto.
D. Iceland and Coral Springs Ice, Inc., a Delaware corporation
("CSII"), the holder of the general partner and remaining limited partner
interests of CSIL, have agreed that, in return for the repayment of the amount
listed on Exhibit "A" owed to Trizec Ice, Inc., a Delaware corporation, by CSIL,
and in consideration of IHI and Iceland obtaining a release from the City of
Coral Springs of the Completion Guaranty executed by Trizec Properties, Inc. in
connection with the Coral Springs Facility (the "Completion Guaranty"), CSII
would transfer and assign to IHI all of its general and limited partnership
interests of CSIL so that, following such transfer and assignment, Iceland and
IHI would be the holders of all of the outstanding limited and general
partnership interests of CSIL. CSIL will continue to own and operate the Coral
Springs Facility and will continue to conduct the business
2
of owning and operating the Coral Springs Facility for commercial public skating
(the "Business").
E. Purchaser desires to purchase the Business and all of the assets of
CSIL including, without limitation, all of CSIL's right, title and interest in
the Coral Springs Facility, and its furnishings, fixtures and equipment, the
Concession Agreement and its Material Contracts (as hereinafter defined).
F. The Sellers wish to sell CSIL's Business and the Assets (as
hereinafter defined) in exchange for the payment by Purchaser of the CSIL Debt
to the respective creditors and Purchaser's delivery to the City of a letter
setting forth its intention and agreement to pay the remaining amounts owed to
the general contractor of the Coral Springs Facility in an amount not to exceed
the amounts owed to such contractor set forth on Exhibit "A" (the "Coral Springs
Letter").
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 ASSETS TO BE SOLD. At Closing (as defined below), Sellers agree to
sell, convey, grant, assign, transfer and deliver to Purchaser and Purchaser
agrees to purchase and acquire, free and clear of any and all Liens, all of
CSIL's right, title and interest in and to all of CSIL's assets used in the
Business including, without limitation the assets described below (the
"Assets"):
(a) Coral Springs Facility. All of CSIL's right, title and
interest in the twin pad ice rink and related facilities and
improvements comprising the Coral Springs Facility.
(b) Furnishings, Fixtures and Equipment. The furnishing,
fixtures and equipment which CSIL owns and uses in the Business or that
is located at the Coral Springs Facility on the date hereof, and
including any unexpired, transferable licenses, franchises and tags
applicable to said assets of CSIL, as more particularly described and
set forth on Schedule 1.1(b) hereto;
(c) Hockey League and Figure Skating Lists. All of CSIL's
lists of hockey leagues, figure skating teams and other groups who
contract for ice time at the Coral Springs Facility ("Customer Lists")
and their respective contracts ("Customer Contracts"), as more
particularly described on Schedule 1.1(c) hereto;
(d) Concession Agreement. All of CSIL's right, title and
interest in and to the Concession Agreement;
2
3
(e) Assigned Contracts. All of CSIL's right, title and
interest in and to all of the leases, licenses, service, supply,
concession, advertising, sponsorship, and maintenance contracts,
agreements with governmental authorities and other material contracts
related to the Business or to which CSIL is a party (collectively, the
"Material Contracts") as more particularly described and set forth on
Schedule 1.1(e);
(f) Intellectual Property. All of CSIL's right, title and
interest in and to, and any goodwill developed through the use
of, the trade names, licenses and other intellectual property used in
the conduct of the Business, as more particularly described on Schedule
1.1(f) hereto;
(g) Cash and Accounts Receivables. All of CSIL's rights and
interests in and to its bank accounts, cash and cash equivalents, and
accounts and notes receivable as of the date of Closing;
(h) Licenses and Permits. All of CSIL's interests and rights
in its licenses and permits as set forth on Schedule 1.1(g) hereto
including, without limitation, any liquor license, if any, issued with
respect to the Coral Springs Facility;
(i) Deposits and Prepayments. All of CSIL's rights and
interests in and to the amount of any and all deposits and prepayments
made to CSIL with respect to the Customer Contracts and CSIL's rights
of offset with respect to such contracts as of the date of Closing;
(j) Inventory. All of CSIL's right, title and interest in and
to the inventory from the food and beverage or non-consumable
concession operations at the Coral Springs Facility as it exists on the
Closing Date (the "Inventory");
(k) Other Assets. All of CSIL's right, title and interest in
its books and records, marketing plans and brochures, supplier lists,
telephone and fax numbers, post office boxes, goodwill resulting from
the Business.
ARTICLE II
CONSIDERATION; ASSUMED LIABILITIES
2.1 CONSIDERATION. The consideration price for the transfer of the
Assets being acquired hereunder by Purchaser shall be Purchaser's agreement to
pay the amounts described in Section 2.2 below.
2.2 CSIL LIABILITIES. At the Closing, the Purchaser shall (i) pay the
liabilities comprising the CSIL Debt directly to the respective creditors and in
the amounts more particularly described on Exhibit "A" attached hereto, and (ii)
shall deliver the Coral Springs Letter, and in return Purchaser shall receive
(x) satisfactions or other evidence satisfactory to Purchaser from such
3
4
creditors that the amounts paid represent all amounts owed to such creditor by
CSIL and that such creditor does not own or possess any other Liens with respect
to the Assets or the Business (the "Satisfactions") and (y) any other documents
deemed reasonably necessary by Purchaser to accomplish the purposes of this
Agreement.
2.3 ASSUMED LIABILITIES. As of Closing, the Purchaser shall assume and
agree to pay, discharge and perform when lawfully due only the obligations,
duties and liabilities of CSIL with respect to the Concession Agreement, the
Material Contracts set forth on Schedule 2.3 and the Customer Contracts (the
"Assumed Liabilities").
2.4 EXCLUDED LIABILITIES. Except for the Assumed Liabilities, the
parties expressly agree that Purchaser shall not assume or otherwise become
liable for any other obligations or liabilities of the Sellers, CSIL or Brisbin,
including without limitation:
(a) any liability or obligation of the Seller, CSIL or any
other person or entity, absolute or contingent, known or unknown, not
expressly agreed to be assumed pursuant to the provisions of Section
2.3;
(b) any liability or obligation relating to income, franchise,
sales, use, payroll, unemployment, withholding or documenting taxes of
the Sellers or CSIL, or relating to the conduct of the Business at the
Coral Springs Facility prior to the Closing Date, including any
interest or penalties related thereto;
(c) any liability or obligation relating to any default under
any of the Assumed Liabilities to the extent such default existed prior
to Closing;
(d) any liability or obligation, whether in tort, contract or
for violation of any law, statute, rule or regulation by the Sellers,
CSIL, Brisbin, or any officer, director, employee or agent of the
Sellers, or CSIL that arises out of or results from any act, omission,
occurrence or state of facts existing prior to or following the Closing
or relating to the conduct of the Business at the Coral Springs
Facility prior to the Closing Date;
(e) any liability or obligation of the Sellers or CSIL with
respect to or arising out of any employee benefit plan or any other
plans or arrangements for the benefit of any employees of the Sellers,
CSIL or any of their affiliated companies; and
(f) any liability or obligation of Seller, CSIL, or Brisbin
with respect to any of the creditors listed on Exhibit "A", or to CSII
(other than payment of the CSIL Debt) or arising out of the existence
or operation of the CSIL limited partnership or relating to the conduct
of the Business at the Coral Springs Facility prior to the Closing
Date.
4
5
ARTICLE III
CLOSING
3.1 TIME AND PLACE. Subject to the terms and conditions of this
Agreement, the closing of the purchase and sale of Assets (the "Closing") shall
take place at 9:00 a.m. on or before January 31, 1997 (the "Closing Date"), at
the offices of the Purchaser's counsel, Akerman, Senterfitt & Eidson, P.A.,
Miami, Florida, or such other time and place as the parties may otherwise agree.
3.2 DELIVERY OF ASSETS. At Closing, CSIL, and each of the Sellers shall
duly execute and deliver to the Purchaser a Bill of Sale and Assignment in the
form attached hereto as Exhibit B, and such other 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 in writing as the Purchaser may request as appropriate or
desirable to confirm its title in and to the Business and any and all of the
Assets sold, conveyed and assigned to the Purchaser.
3.3 PAYOFF OF CSIL DEBT; DELIVERY OF CORAL SPRINGS LETTER. At the
Closing, the Purchaser shall (i) deliver the Coral Springs Letter and (ii) pay
the CSIL Debt and in so doing, shall deliver to each of the creditors listed on
Exhibit "A" payment of the respective amounts owed and in return Purchaser shall
receive Satisfactions from each of such creditors.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
As a material inducement to the Sellers and Brisbin to enter into this
Agreement and to consummate the transactions contemplated hereby, the Purchaser
makes the following representations and warranties:
4.1 CORPORATE STATUS. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida.
4.2 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 action necessary to authorize the execution and
delivery of this Agreement, the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby.
4.3 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
5
6
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.
4.4 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.
4.5 LITIGATION. To the knowledge of Purchaser, there is no action, suit
or proceeding pending or threatened against Purchaser at law or in equity or
upon or by any governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or before any arbitration of any kind,
that if adversely determined may result in any Material Adverse Change in the
business, operations, prospects, properties or assets, or in the condition,
financial or otherwise, of Purchaser.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS AND BRISBIN
As a material inducement to the Purchaser to enter into this Agreement
and to consummate the transactions contemplated hereby, the Sellers and Brisbin
jointly and severally make the following representations and warranties to the
Purchaser:
5.1 EXISTENCE AND STATUS. Each of the Sellers is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite power and authority to own or lease its
properties and to carry on its business as now being conducted. CSIL is a
limited partnership duly organized, validly existing and in good standing under
the laws of the State of Florida and has the requisite power and authority to
own or lease its properties and to carry on the Business as now being conducted.
5.2 POWER AND AUTHORITY. The Sellers have the power and authority to
execute and deliver this Agreement, to perform their obligations hereunder and
to consummate the transactions contemplated hereby. The Sellers have taken all
action necessary to authorize the execution and delivery of this Agreement, the
performance of its respective obligations hereunder and the consummation of the
transactions contemplated hereby. Brisbin 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.
5.3 ENFORCEABILITY. This Agreement has been duly executed and delivered
by each of the Sellers and Brisbin, and constitutes the legal, valid and binding
obligation of the Sellers and Brisbin, enforceable against each of the Sellers
and Brisbin in accordance with its terms, except as
6
7
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.
5.4 CAPITALIZATION. At the Closing, Iceland and IHI shall be the record
and beneficial owners of all of the outstanding general and limited partnership
interests of CSIL. Brisbin has a substantial financial interest in IHI and
Iceland. At the Closing Date, the boards of directors and a majority of the
record and beneficial owners of all of the outstanding shares of capital stock
of the Sellers shall have approved the transactions herein.
5.5 NO VIOLATION. The execution and delivery of this Agreement by the
Sellers and Brisbin, the performance by the Sellers and Brisbin of their
respective obligations hereunder and the consummation by the Sellers and Brisbin
of the transactions contemplated by this Agreement will not (i) contravene any
provision of the articles of incorporation or bylaws of either of the Sellers,
(ii) 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, Brisbin or the Assets, (iii) 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
(including the Concession Agreement, any Customer Contract or Material Contract)
which is applicable to, binding upon or enforceable against the Sellers, Brisbin
or the Assets, (iv) result in or require the creation or imposition of any Lien
upon or with respect to any of the Assets, or (v) except for the consent of the
City to the assignment of the Concession Agreement, 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.
5.6 NO COMMISSIONS. The Sellers and Brisbin 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.
5.7 FINANCIAL STATEMENTS. The Sellers have delivered to the Purchaser
the financial statements of CSIL, including the notes thereto compiled by an
accountant employed by Iceland (collectively, the "Financial Statements"),
copies of which are attached to Schedule 5.7 hereto. The balance sheets dated as
of December 31, 1996 of CSIL included in the Financial Statements are referred
to herein as the "Current Balance Sheet." The Financial Statements fairly
present the financial position of CSIL and the Business at each of the balance
sheet dates and the results of operations for the periods covered thereby. The
books and records of CSIL fully and fairly reflect all transactions, properties,
assets and liabilities of CSIL. There are no material special or non-recurring
items of income or expense during the periods covered by the Financial
Statements and the balance sheets included in the Financial Statements do not
reflect any writeup or revaluation increasing the book value of any assets,
except as specifically disclosed in the notes thereto. The Financial
7
8
Statements reflect all adjustments necessary for a fair presentation of the
financial information contained therein.
5.8 CHANGES SINCE THE CURRENT BALANCE SHEET DATE. Since the date of the
Current Balance Sheet, neither CSIL nor either Seller (i) has not issued any
capital stock or other securities; (ii) made any distribution of or with respect
to its capital stock or other securities or purchased or redeemed any of its
securities; (iii) paid any bonus to or increased the rate of compensation of any
of its officers or salaried employees or amended any other terms of employment
of such persons, except in the ordinary course of business; (iv) sold, leased or
transferred any of its properties or assets other than in the ordinary course of
business and not inconsistent with past practice; (v) made or obligated itself
to make capital expenditures out of the ordinary course of business consistent
with past practice; (vi) made any payment in respect of its liabilities other
than in the ordinary course of business consistent with past practice; (vii)
incurred any obligations or liabilities (including any indebtedness) or entered
into any transaction or series of transactions out of the ordinary course of
business, except for this Agreement and the transactions contemplated hereby;
(viii) suffered any theft, damage, destruction or casualty loss, not covered by
insurance and for which a timely claim was filed; (ix) suffered any
extraordinary losses (whether or not covered by insurance); (x) waived,
canceled, compromised or released any rights; (xi) made or adopted any change in
its accounting practice or policies; (xii) made any adjustment to its books and
records other than in respect of the conduct of its business activities in the
ordinary course consistent with past practice; (xiii) entered into any
transaction with any Affiliate; (xiv) entered into any employment agreement,
except in the ordinary course of business; (xv) terminated, amended or modified
any agreement; (xvi) imposed any security interest or other Lien on any of the
Assets; (xvii) delayed paying any accounts payable which is due and payable;
(xviii) failed to order any inventory or supplies necessary for the operation of
the Business at the Coral Springs Facility; (xix) entered into any other
transaction or been subject to any event which has or may have a Material
Adverse Effect on the Business; (xx) made any distributions to partners or
shareholders of cash, assets or property of any type; or (xxi) agreed to do or
authorized any of the foregoing.
5.9 LIABILITIES OF CSIL. CSIL does not have any liabilities or
obligations, whether accrued, absolute, contingent or otherwise, except (a) to
the extent reflected or taken into account in the Current Balance Sheet and not
heretofore paid or discharged, (b) to the extent specifically set forth in or
incorporated by express reference in any of the Schedules attached hereto, (c)
liabilities incurred in the ordinary course of business consistent with past
practice since the date of the Current Balance Sheet (none of which relates to
breach of contract, breach of warranty, tort, infringement or violation of law,
or which arose out of any action, suit, claim, governmental investigation or
arbitration proceeding), and (d) normal accruals, reclassifications, and audit
adjustments which would be reflected on an audited financial statement and which
could not be material in the aggregate.
5.10 LITIGATION. There is no action, suit, or other legal or
administrative proceeding or governmental investigation pending, threatened,
anticipated or contemplated against, by or affecting CSIL, either Seller,
Brisbin 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.
8
9
Except as set forth on Schedule 5.10, there are no outstanding orders, decrees,
stipulations or agreements issued by any Governmental Authority in any
proceeding or agreed to by CSIL, either Seller or Brisbin to which CSIL, either
Seller or Brisbin is or was a party which have not been complied with in full or
which continue to impose any material obligations on CSIL, either Seller or
Brisbin or which may have a Material Adverse Effect on CSIL, either Seller,
Brisbin or the Assets.
5.11 ENVIRONMENTAL MATTERS.
(a) To the best knowledge of the Sellers and Brisbin, CSIL,
the Sellers and the conduct of the Business is and has at all times been in
compliance with all Environmental, Health and Safety Laws (as defined herein)
governing its business, operations, properties and assets. To the best knowledge
of the Sellers and Brisbin, neither CSIL nor either Seller is currently liable
for any penalties, fines or forfeitures for failure to comply with any
Environmental, Health and Safety Laws. CSIL, the Sellers and the conduct of the
Business are in full compliance with all notice, record keeping and reporting
requirements of all Environmental, Health and Safety Laws, and has complied with
all informational requests or demands arising under the Environmental, Health
and Safety Laws.
(b) To the best knowledge of Sellers and Brisbin, CSIL has
obtained, or caused to be obtained, and are in full compliance with, all
licenses, certificates, permits, approvals and registrations (collectively,
"Licenses") required by the Environmental, Health and Safety Laws for the
ownership of its properties and assets and the operation of its business as
presently conducted.
(c) As used in this Agreement, "Environmental, Health and
Safety Laws" means all federal, state, regional or local statutes, laws, rules,
regulations, codes, orders, plans, injunctions, decrees, rulings, and changes or
ordinances or judicial or administrative interpretations thereof, whether
currently in existence or hereafter enacted or promulgated, any of which govern
(or purport to govern) or relate to pollution, protection of the environment,
public health and safety, air emissions, water discharges, hazardous or toxic
substances, solid or hazardous waste or occupational health and safety, as any
of these terms are or may be defined in such statutes, laws, rules, regulations,
codes, orders, plans, injunctions, decrees, rulings and changes or ordinances,
or judicial or administrative interpretations thereof, including, without
limitation, RCRA, CERCLA, the Hazardous Materials Transportation Act, the Toxic
Substances Control Act, the Clean Air Act, the Clean Water Act, FIFRA, EPCRA and
OSHA.
5.12 REAL ESTATE. CSIL and the Sellers do not own any real property or,
except for the Coral Springs Facility pursuant to the Concession Agreement, any
interest therein. Schedule 5.12 sets forth a list of all leases, licenses or
similar agreements including the Concession Agreement ("Leases") to which CSIL
or either Seller is a party (copies of which have previously been furnished to
Purchaser), in each case, setting forth (a) the lessor and lessee thereof and
the date and term of each of the Leases, (b) the legal description, including
street address, of each property covered thereby, and (c) a brief description
(including size and function) of the principal improvements and buildings
thereon (the "Leased Premises"), all of which are within the property set-back
and building lines of the respective property. The Leases are in full force and
effect and have not been amended,
9
10
and no party thereto is in default or breach under any such Lease. No event has
occurred which, with the passage of time or the giving of notice or both, would
cause a material breach of or default under any of such Leases. There is no
breach or anticipated breach by any other party to such Leases. As of the
Closing Date, all of such Leases will be either assigned to Purchaser or, at
Purchaser's option, terminated.
5.13 GOOD TITLE, ADEQUACY AND CONDITION. CSIL has, and at Closing will
have, good and marketable title to the Assets and the Sellers will have full
power to sell, transfer and assign the same, free and clear of any Lien and by
delivery of the Bill of Sale and Assignment as contemplated by Section 3.2, the
Sellers will deliver to the Purchaser title to such Assets free and clear of any
Lien. The Sellers covenant and agree that it will warrant and defend the title
to the property hereby sold to the Purchaser, its successors and assigns,
against the lawful claims, demands and charges of all persons whomsoever. The
Assets constitute, in the aggregate, all of the assets and properties necessary
for the conduct of the Business at the Coral Springs Facility in the manner in
which and to the extent to which such business is currently being conducted. The
Coral Springs Facility possesses all equipment necessary for the normal
operation of an ice rink facility such as the Coral Springs Facility. The Assets
are in good operating condition, normal wear and tear excepted, and have been
maintained in accordance with all applicable specifications and warranties, and
all inventory is in good saleable condition and not obsolete. The Sellers have
advised Purchaser of the existence of a deed restriction applicable to the Coral
Springs Facility and Purchaser agrees that if it closes the transactions under
this Agreement, it shall close subject to the deed restriction, which shall be
excluded from the Sellers' representations contained herein.
5.14 COMPLIANCE WITH LAWS. CSIL and the Sellers are and have been in
compliance in all material respects with all laws, regulations and orders
applicable to it, its Business and operations (as conducted by it now and in the
past), the Assets, and any other properties and assets (in each case owned or
used by it now or in the past). Neither CSIL and the Sellers nor any of their
respective employees or agents, has made any payment of funds in connection with
the Business which is prohibited by law, and no funds have been set aside to be
used in connection with the Business for any payment prohibited by law. CSIL and
the Sellers are not subject to any Contract, decree or injunction in which CSIL,
or either Seller or Brisbin is a party which restricts the continued operation
of the Business or the expansion thereof to other geographical areas, customers
or suppliers, or to other lines of business.
5.15 LABOR AND EMPLOYMENT MATTERS. Neither CSIL nor either Seller is a
party to or bound by any collective bargaining agreement or any other agreement
with a labor union, and there has been no effort by any labor union during the
24 months prior to the date hereof to organize any employees of the Sellers into
one or more collective bargaining units. There is no pending or threatened labor
dispute, strike or work stoppage which affects or which may affect the Business.
Neither Seller nor Brisbin is aware that any key employee or group of employees
has any plans to terminate his or their employment with CSIL. Except as set
forth on Schedule 5.15, neither CSIL nor either Seller is a party or subject to
any employment agreements, noncompetition agreements, or consulting agreements.
10
11
5.16 EMPLOYEE BENEFIT PLANS.
(a) Employee Benefit Plans. Neither CSIL nor either Seller has
or has maintained, and has any liability with respect to, (a) any Employee
Benefit Plan (as defined below) intended to qualify under Code Section 401(a) or
403(a)(i), (b) any multiemployer plan, as defined in Section 3(37) of ERISA, or
(c) any employee pension benefit plan, as defined in Section 3(2) of ERISA.
Schedule 5.16 contains a list setting forth each employee benefit plan or
arrangement of CSIL or either Seller, including but not limited to employee
welfare benefit plans, deferred compensation plans, stock option plans, bonus
plans, stock purchase plans, hospitalization, disability and other insurance
plans, severance or termination pay plans and policies, whether or not described
in Section 3(3) of ERISA, in which employees, their spouses or dependents, of
the Sellers participate ("Employee Benefit Plans") (true and accurate copies of
which, together with the most recent annual reports on Form 5500 and summary
plan descriptions with respect thereto, if applicable, were furnished to
Purchaser). With respect to each Employee Benefit Plan (i) each has been
administered in all material respects in compliance with its terms and with all
applicable laws, including, but not limited to, ERISA and the Code; (ii) no
actions, suits, claims or disputes are pending, or threatened; (iii) no audits,
inquiries, reviews, proceedings, claims or demands are pending with any
governmental or regulatory agency; (iv) there are no facts which could give rise
to any material liability in the event of any such investigation, claim, action,
suit, audit, review, or other proceeding; (v) all material reports, returns, and
similar documents required to be filed with any governmental agency or
distributed to any plan participant have been duly or timely filed or
distributed; and (vi) no "prohibited transaction" has occurred within the
meaning of the applicable provisions of ERISA or the Code.
(b) Welfare Plans. (i) Except as maybe required by applicable
law, neither CSIL nor either Seller is obligated under any employee welfare
benefit plan as described in Section 3(1) of ERISA ("Welfare Plan") to provide
medical or death benefits with respect to any employee or former employee of
CSIL or either Seller or its predecessors after termination of employment; (ii)
CSIL and the Sellers have complied with the notice and continuation coverage
requirements of Section 4980B of the Code and the regulations thereunder with
respect to each Welfare Plan that is, or was during any taxable year for which
the statute of limitations on the assessment of federal income taxes remains
open, by consent or otherwise, a group health plan within the meaning of Section
5000(b)(1) of the Code; and (iii) there are no reserves, assets, surplus or
prepaid premiums under any Welfare Plan which is an Employee Benefit Plan.
Except as set forth on Schedule 5.16, the consummation of the transactions
contemplated by this Agreement will not entitle any individual to severance pay,
and, will not accelerate the time of payment or vesting, or increase the amount
of compensation, due to any individual.
(c) Other Liabilities. (i) None of the Employee Benefit Plans
obligates CSIL or either Seller to pay separation, severance, termination or
similar benefits solely as a result of any transaction contemplated by this
Agreement; (ii) all required or discretionary (in accordance with historical
practices) payments, premiums, contributions, reimbursements, or accruals for
all periods ending prior to or as of the Closing Date shall have been made or
properly accrued on the Current Balance Sheet or will be properly accrued on the
books and records of CSIL or Sellers as of the
11
12
Closing Date; and (iii) none of the Employee Benefit Plans has any unfunded
liabilities which are not reflected on the Current Balance Sheet or the books
and records of CSIL.
5.17 TAX MATTERS. All Tax Returns required to be filed prior to the
date hereof by CSIL and the Sellers have been timely filed, and all such Tax
Returns have been prepared in compliance with all applicable laws and
regulations. All Taxes due and payable by or with respect to CSIL and the
Sellers have been paid and are accrued on the Current Balance Sheet or will be
accrued on the books and records of CSIL as of the Closing and cash has been
reserved by CSIL for the payment thereof in full when due and payable (and such
taxes will be paid when due and payable). Except as set forth in Schedule 5.17
hereto: (i) no deficiency or proposed adjustment which has not been settled or
otherwise resolved for any amount of Taxes has been asserted or assessed by any
taxing authority against CSIL or the Sellers; (ii) neither CSIL nor the Sellers
have consented to extend the time in which any Taxes may be assessed or
collected by any taxing authority; (iii) neither CSIL nor the Sellers have
requested or been granted an extension of the time for filing any Tax Return to
a date later than the Closing Date; (iv) there is no action, suit, taxing
authority proceeding, or audit or claim for refund now in progress, pending or
threatened against or with respect to CSIL and the Sellers regarding Taxes; (v)
there are no Liens for Taxes (other than for current Taxes not yet due and
payable) upon the assets of CSIL or the Sellers; CSIL and the Sellers will not
be required (A) as a result of a change in method of accounting for a taxable
period ending on or prior to the Closing Date, to include any adjustment under
Section 481(c) of the Code (or any corresponding provision of state, local or
foreign law) in taxable income for any taxable period (or portion thereof)
beginning after the Closing Date, or (B) as a result of any "closing agreement,"
as described in Section 7121 of the Code (or any corresponding provision of
state, local or foreign law), to include any item of income or exclude any item
of deduction from any taxable period (or portion thereof) beginning after the
Closing Date; (vi) neither CSIL nor either Seller have been a member of an
affiliated group (as defined in Section 1504 of the Code) or filed or been
included in a combined, consolidated or unitary income Tax Return; (vii) neither
CSIL nor either Seller is a party to or bound by any tax allocation or tax
sharing agreement or has any current or potential contractual obligation to
indemnify any other Person with respect to Taxes; (viii) no taxing authority
will claim or assess any additional Taxes against CSIL or either Seller for any
period for which Tax Returns have been filed; (ix) true, correct and complete
copies of all income and sales Tax Returns filed by or with respect to CSIL or
either Seller for the past three years have been furnished or made available to
the Purchaser; (x) CSIL and the Sellers will not be subject to any Taxes
pursuant to Section 1374 or Section 1375 of the Code (or any corresponding
provision of state, local or foreign law) for the period ending as of the
Closing Date for any period for which a Tax Return has not been filed.
5.18 INSURANCE. CSIL, the Assets and the conduct of the Business is
covered by valid, outstanding and enforceable policies of insurance issued to
CSIL or the Sellers by reputable insurers covering CSIL's properties, the Assets
and the Business against risks of the nature normally insured against by
corporations or partnerships in the same or similar lines of business and in
coverage amounts typically and reasonably carried by such corporations (the
"Insurance Policies"). Such Insurance Policies are in full force and effect, and
all premiums due thereon have been paid. CSIL and the Sellers have complied with
the provisions of such Insurance Policies. CSIL and the Sellers
12
13
have not failed to give, in a timely manner, any notice required under any of
the Insurance Policies to preserve its rights thereunder.
5.19 LICENSES AND PERMITS. CSIL and the Sellers possess all licenses
and required governmental or official approvals, permits or authorizations
(collectively, the "Permits") for the conduct and operation of the Business,
including, without limitation, a temporary certificate of occupancy for the
Coral Springs Facility. All such Permits are valid and in full force and effect,
CSIL and the Sellers are in compliance in all material respects with their
requirements, and no proceeding is pending or threatened to revoke or amend any
of them. None of such Permits is or will be impaired or in any way affected by
the execution and delivery of this Agreement or the transactions contemplated
hereby. As of the Closing Date, the Coral Springs Facility has not been issued
or received a liquor license and neither CSIL, the Sellers, the manager or any
other person has sold or distributed any beer, wine or alcohol at the Coral
Springs Facility. The Sellers and Brisbin represent and warrant that, to their
knowledge, no condition exists which would prevent or unduly delay the issuance
of the final certificate of occupancy for the Coral Springs Facility other than
the completion of punch list items by the general contractor of the Coral
Springs Facility and no such actions or conditions shall cause Purchaser any
liability for costs in excess of the amounts specified in Exhibit A.
5.20 CUSTOMER CONTRACTS. All of the hockey leagues, figure skating
teams and other users of the Coral Springs Facility listed on the customer lists
attached hereto as Schedule 1.1(c) are subject to valid and enforceable Customer
Contracts. True, correct and complete copies of such contracts have been
furnished by the Sellers to the Purchaser. Neither CSIL nor the Sellers have
violated any of the material terms or conditions of any of the Customer
Contracts, and all of the covenants to be performed by any other party thereto
have been fully performed and there are no claims for breach or indemnification
or notice of default or termination thereunder.
5.21 BANK ACCOUNTS. Schedule 5.21 lists each of CSIL's account with any
bank, broker or other depository institution, and the names of all persons
authorized to withdraw funds from each such account, and the locations of all
safe deposit boxes of CSIL and the names of all persons authorized to have
access to such safe deposit boxes.
5.22 CONCESSION AGREEMENT. Neither the Sellers nor CSIL is in breach
of, nor has any event occurred including, without limitation, any act, failure
to act or other event prohibited by Sections, 36.1, 36.2 or 36.3 of the
Concession Agreement, which could give rise to the right by the City to
terminate the Concession Agreement.
5.23 EMPLOYEES. Schedule 5.23 lists each of CSIL's employees, full or
part time, their current wages, benefits, titles, duties, and their accrued
vacation or sick time, if any. As of the Closing Date, all of the employees
shall have been paid in full and CSIL shall not have any accrued unpaid vacation
or sick time.
5.24 SCHEDULES. All lists or other statements, information or documents
set forth in or attached to any Schedule to this Agreement shall be deemed to be
part of this Agreement for
13
14
purposes of the representations and warranties set forth herein, with the same
force and effect as if such lists, statements, information and documents were
set forth herein.
5.25 ACCURACY OF INFORMATION FURNISHED BY SELLERS TO PURCHASER. No
representation, statement or information made or furnished by Sellers to
Purchaser or any of Purchaser's representatives, including those contained in
this Agreement and the various Schedules attached hereto and the other
information and statements referred to herein and previously furnished by
Sellers, contains or shall contain any untrue statement of a material fact or
omits or shall omit any material fact necessary to make the information
contained therein not misleading. Sellers have provided Purchaser with true,
accurate and complete copies of all documents listed or described in the various
Schedules attached hereto.
ARTICLE VI
CERTAIN AGREEMENTS AND COVENANTS OF THE PARTIES
6.1 CONDUCT OF BUSINESS BY THE SELLERS PENDING THE CLOSING. The Sellers
and Brisbin jointly and severally covenant and agree that, between the date of
this Agreement and the Closing Date, the Business shall be conducted only in,
and CSIL and the Sellers shall not take any action except in, the ordinary
course of its respective business, consistent with past practice. CSIL and the
Sellers shall each use its best efforts to preserve intact its business
organization, to keep available the services of its current officers, employees
and consultants and to preserve its present relationships with customers,
suppliers and other persons with which it has significant business relations.
6.2 FURTHER ASSURANCES. Each party 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 VII and VIII. Brisbin shall cause
the Sellers to comply with all of the covenants of the Sellers under this
Agreement. 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 law, rule or
regulation or the rules of the Nasdaq Stock Market or any exchange on which the
common stock of Florida Panthers Holdings, Inc. ("FPHI") is listed in connection
with the transactions contemplated by this Agreement, and to use their
respective best efforts to agree jointly on a method to overcome any objections
by any Governmental Authority to any such transactions. The parties also agree
to use best efforts to defend all lawsuits or other legal proceedings
challenging this Agreement or the consummation of the transactions contemplated
hereby and to lift or rescind any injunction or restraining order or other order
adversely affecting the ability of the parties to consummate the transactions
contemplated hereby.
6.3 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) to afford the Purchaser and the Purchaser's officers,
employees, auditors, counsel and agents reasonable access at
14
15
all reasonable times to CSIL's properties, offices, and other facilities, to its
officers and employees and to all books and records, and shall furnish such
persons with all financial, operating and other data and information as may be
requested. No information provided to or obtained by the Purchaser shall affect
any representation or warranty in this Agreement.
6.4 NOTIFICATION OF CERTAIN MATTERS. The Sellers and Brisbin 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.
6.5 CONFIDENTIALITY; PUBLICITY. Except as may be required by law or as
otherwise permitted or expressly contemplated herein, no party hereto or their
respective Affiliates, employees, agents and representatives shall disclose to
any third party this Agreement or the subject matter or terms hereof without the
prior consent of the other parties hereto. No press release or other public
announcement related to this Agreement or the transactions contemplated hereby
shall be issued by any party hereto without the prior approval of the other
parties, except that 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).
6.6 NO OTHER DISCUSSIONS. The Sellers, Brisbin and their respective
Affiliates, 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 any merger,
sale or other disposition of any substantial part of the assets, business or
properties of CSIL or the Sellers (whether by merger, consolidation, sale of
stock or otherwise), or (ii) enter into any agreement or commitment (whether or
not binding) with respect to any of the foregoing transactions. The Sellers and
Brisbin will immediately notify the Purchaser if any third party attempts to
initiate any solicitation, discussion or negotiation with respect to any of the
foregoing transactions.
6.7 DUE DILIGENCE INVESTIGATION. The Purchaser shall be entitled to
conduct, prior to Closing, a due diligence investigation of CSIL, the Sellers,
the Assets and the Business. The Sellers shall provide the Purchaser and its
designated agents and consultants with access to the Business and the Assets and
all books, records, documents, correspondence and other materials related
thereto or to CSIL 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.
6.8 TRADING IN FPHI COMMON STOCK. Except as otherwise expressly
consented to by the Purchaser, from the date of this Agreement until the Closing
Date, the Sellers and Brisbin (and any Affiliates thereof) will not directly or
indirectly purchase or sell (including short sales) any shares of FPHI Common
Stock in any transactions effected on the Nasdaq Stock Market, or otherwise.
15
16
6.9 COVENANT NOT TO COMPETE. The Sellers and Brisbin jointly and
severally agree that for the period of three (3) years immediately following the
Closing Date, the Sellers and Brisbin shall 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 Business at the Coral Springs
Facility which is directly or indirectly in competition with the Business;
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, and further provided that the providing of architectural services and
designs by Brisbin for professional arenas with seating capacity of at least
3,000 spectators or stadiums in the United States shall not be deemed to violate
this Covenant. The provision of architectural services and/or designs by Brisbin
or by Brisbin Brook Beynon, 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) for 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, excepting rinks containing more than 3,000
spectator seats, shall be deemed to violate this Covenant;
(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 (as defined
in the Second Agreement); (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 Business; (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 Brisbin, 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, including, but not limited to, any Customer Lists.
The Sellers and Brisbin 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
16
17
in no way 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 and Brisbin 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.
6.10 TERMINATION OF CONTRACTS. Prior to Closing, neither CSIL or the
Sellers shall terminate or otherwise modify or amend the Concession Agreement,
any of the Material Contracts or any of the Customer Contracts, without the
prior written consent of Purchaser in each case.
6.11 FILINGS. 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 requirement of law or the requirements of the
SEC and the Nasdaq National Market in connection with the transactions
contemplated by this Agreement.
6.12 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.
6.13 FURTHER ASSURANCES. Each party 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
the terms of this Agreement and the transactions contemplated hereby.
6.14 BUSINESS LICENSES. At Closing, CSIL and/or the Sellers shall
assign any and all necessary state, county and local licenses for the operation
of the Business or the Coral Springs Facility that may be lawfully assigned.
6.15 CONSENTS TO ASSIGNMENTS. Sellers shall obtain all consents and
approvals required for CSIL's assignment of the Concession Agreement, the
Customer Contracts and the Material Contracts and shall execute and deliver any
form of assignment reasonably required and shall provide to the other parties to
any such Contracts any information reasonably requested in connection with such
assignment.
17
18
6.16 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 our 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 (the "Federal Court"). Notwithstanding the foregoing, the Sellers,
Brisbin or Purchaser may remove to the 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 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.
6.17 POSITIVE NET WORTH. The Sellers and Brisbin covenant and agree
that, at the Closing, following the payment of the CSIL Debt by Purchaser, CSIL
shall have a positive net worth, i.e. CSIL's current assets shall equal or
exceed its current liabilities and the current liabilities of the Business at
the Coral Springs Facility.
ARTICLE VII
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:
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE WITH
OBLIGATIONS. The representations and warranties of the Sellers and Brisbin
contained in this Agreement shall be true and correct in all material respects
at and as of the Closing Date with the same force and effect as though made at
and as of that time except (i) for changes specifically permitted by or
disclosed pursuant to this Agreement, and (ii) that those representations and
warranties which address matters only as of a particular date shall remain true
and correct as of such date. Each of the Sellers and Brisbin 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 and Brisbin shall have delivered to the Purchaser a certificate, dated
as of the Closing Date, duly signed (in the case of the Sellers, by its
respective President), certifying that such representations and warranties are
true and correct and that all such obligations have been performed and complied
with.
7.2 NO MATERIAL ADVERSE CHANGE OR DESTRUCTION OF PROPERTY. Between the
date hereof and the Closing Date, (i) there shall have been no Material Adverse
Change of CSIL or the Sellers, (ii) there shall have been no adverse federal,
state or local legislative or regulatory change affecting in any material
respect CSIL's Assets, or the Business, and (iii) none of the Assets shall have
been damaged by fire, flood, casualty, act of God or the public enemy or other
cause (regardless of
18
19
insurance coverage for such damage), and there shall have been delivered to the
Purchaser a certificate to that effect, dated the Closing Date and signed by or
on behalf of the Sellers and Brisbin.
7.3 CORPORATE CERTIFICATE. The Sellers shall have delivered to the
Purchaser (i) copies of its articles of incorporation and bylaws as in effect
immediately prior to the Closing Date, (ii) copies of resolutions adopted by
their respective Board of Directors and shareholders and, in the case of CSIL,
resolutions of all of the partners, authorizing the transactions contemplated by
this Agreement, (iii) copies of CSIL's certificate of limited partnership and
limited partnership agreement, and (iv) certificates of good standing issued by
the Secretary of State of the State of Delaware, with respect to Sellers, and
the State of Florida, with respect to CSIL, as of a date not more than ten days
prior to the Closing Date, certified in the case of subsections (i) and (ii) of
this Section as of the Closing Date by the Secretary of the Sellers as being
true, correct and complete.
7.4 DELIVERY OF ASSETS. At Closing, the Sellers and CSIL shall duly
execute and deliver to the Purchaser a Bill of Sale and Assignment in the form
attached hereto as Exhibit A, and such other 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. At or before Closing, Purchaser shall have had been given the
opportunity, at its option, to hire any of CSIL's employees for employment at
the Coral Springs Facility.
7.5 CONSENTS. CSIL or the Sellers shall have received the consent of
the City to the assignment by CSIL of the Concession Agreement to Purchaser. 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
CSIL or the Sellers from any person from whom such consent or waiver is required
under any Contract to which CSIL or the Sellers, Brisbin or the Assets are bound
(including the Customer Contracts and the Material Contracts) 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 contracts, either by the terms thereof or as a matter of law.
7.6 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.
7.7 DUE DILIGENCE REVIEW. The Purchaser shall have had adequate
opportunity to complete its due diligence review of CSIL, the Sellers, the
Assets and the Business pursuant to Sections 6.3 and 6.7, and shall be satisfied
with the results of such review and assessment.
7.8 OTHER DELIVERIES. At the Closing, the Sellers and Brisbin shall
have delivered to the Purchaser (i) non-compete agreements satisfactory to
Purchaser by the Sellers and Brisbin that set forth their respective agreements
with respect to the restrictions contained in Section 6.9; (ii) the City shall
have delivered a final certificate of occupancy for the Coral Springs Facility;
(iii) a release,
19
20
waiver and hold harmless and a non-compete from Philip Kosoy, in a form
satisfactory to Purchaser in its sole discretion; (iv) releases of all
contractor's and materialman's liens with respect to the development of the
Coral Springs Facility and any other Satisfactions from the creditors listed on
Exhibit "A"; (v) from the general contractor of the Coral Springs Facility all
documents normally requested by a lender under a construction loan disbursement
agreement; and (vi) from City, an acknowledgment that the Concession Agreement
is in good standing, no breach has occurred thereunder and no event has occurred
which creates a right in City to terminate the Concession Agreement.
7.9 ASSIGNMENT OF CSIL PARTNERSHIP INTERESTS. Iceland, IHI and CSII
shall have concluded the assignment and transfer of all of CSII's general and
limited partnership interests in CSIL, and Iceland and IHI shall be the holders
of all of the outstanding partnership interests of CSIL and CSIL shall be the
sole owner of all of the Assets and the Business, free and clear of any Liens.
7.10 MANAGEMENT AGREEMENT. At Closing, Purchaser, Brian Brisbin and
Real Ice Management, Inc. shall have entered into a management agreement for a
term of one (1) year which provides for the management of the Coral Springs
Facility and, at the option of Purchaser, the conduct of certain pre-development
activities for Purchaser and which provides for a base management fee of
$150,000 per annum and an incentive fee to be negotiated by the parties (but not
to exceed the prevailing fees in the industry), non-compete terms and otherwise
in a form satisfactory to Purchaser. The management agreement shall be
terminable by Purchaser at any time following sixty (60) days written notice and
Purchaser shall have no other obligation under the management agreement to pay a
proportionate amount of base fees accrued through the date of determination.
7.11 CROSS CONTINGENCY. All of the conditions precedent to the parties'
obligations to close the transactions contemplated by the Second Agreement and
that certain Asset Purchase Agreement by and between Purchaser and Brisbin Brook
Beynon, Architects dated of even date herewith shall have been satisfied or
waived.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS
OF THE SELLERS AND BRISBIN
The obligations of the Sellers and Brisbin 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 and Brisbin:
8.1 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 (i) for changes specifically permitted by or disclosed pursuant to
this Agreement, and (ii) that those representations and warranties which address
20
21
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 and Brisbin 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.
8.2 PAYMENT OF THE CSIL DEBT. At the Closing, the Purchaser shall have
paid the CSIL Debt to the parties and in their respective amounts listed on
Exhibit "A".
8.3 OTHER DELIVERIES. Sellers shall have obtained (i) an assignment by
CSII of its general and limited partnership interests in CSIL to IHI, (ii) the
City of Coral Springs shall have consented to the assignment of the Concession
Agreement to Purchaser and (iii) the City shall have released the Completion
Guaranty.
ARTICLE IX
INDEMNIFICATION
9.1 AGREEMENT BY SELLERS AND BRISBIN TO INDEMNIFY. The Sellers and
Brisbin jointly and severally agree to 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 or Brisbin in or
pursuant to this Agreement, (ii) any breach of the covenants or agreements made
by the Sellers or Brisbin in this Agreement, (iii) any inaccuracy in any
certificate delivered by the Sellers or Brisbin pursuant to this Agreement, (iv)
CSIL's ownership of the Assets or operation of the Business prior to Closing.
Without limiting the generality of the foregoing with respect to the measurement
of Indemnifiable Damages, 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 Sellers and Brisbin hereunder been true
and correct.
9.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by Sellers and Brisbin 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.
21
22
9.3 SELLERS' AND BRISBIN'S INDEMNIFICATION OBLIGATIONS.
(a) The Purchaser shall give written notice to the Sellers and
Brisbin of any claim for Indemnifiable Damages or any other damages
hereunder, which notice shall set forth (i) the amount of Indemnifiable
Damages or other loss, damage, cost or expense which the Purchaser
claims to have sustained by reason thereof, and (ii) the basis of the
claim therefor;
(b) Purchaser shall have the right to set off any claim for
indemnity against any Held Back Shares held pursuant to that certain
Asset Purchase Agreement, by and between Purchaser and Brisbin of even
date herewith (the "Second Agreement") such set off shall be effected
on the later to occur on the expiration of 10 days from the date of
such notice (the "Notice of Contest Period") or, if such claim is
contested, the date the dispute is resolved, and such set off shall be
charged proportionally against the shares set aside;
(c) If, prior to the expiration of the Notice of Contest
Period, the Sellers and Brisbin shall notify the Purchaser in writing
of an intention to dispute the claim and if such dispute is not
resolved within 30 days after expiration of such period (the
"Resolution Period"), then the Purchaser may elect that such dispute
shall be resolved by a committee of three arbitrators (one appointed by
the Seller, one appointed by the Purchaser and one appointed by the two
arbitrators so appointed), which shall be appointed within 60 days
after the expiration of the Resolution Period. The costs of such
arbitration shall be equally born by Purchaser, on the one hand, and
the Sellers and Brisbin, on the other hand. The arbitrators shall abide
by the rules of the American Arbitration Association and their decision
shall be made within 45 days of being appointed and shall be final and
binding on all parties; and
(d) For purposes of any set off described under this Section,
the Held Back Shares shall be valued at the Average Closing Sale Price.
Not more than once prior to the one year anniversary of the Closing
Date, the Sellers may instruct the Purchaser to sell some or all of the
Held Back Shares and the net proceeds thereof shall be substituted for
such Held Back Shares in any set off to be made by the Purchaser
pursuant to any claim hereunder. Purchaser shall not be liable for any
loss or damage incurred by Sellers arising from any delay in the sale
of such Held Back Shares following Seller's instruction to sell the
Held Back Shares.
9.4 NO BAR. If the Held Back Shares are insufficient to set off any
claim for any Indemnifiable Damages hereunder (or have been delivered to the
Sellers prior to the 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.
22
23
ARTICLE X
DEFINITIONS
10.1 DEFINED TERMS. As used herein, the following terms shall have the
following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as
in effect on the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Concession Contract" shall have the meaning given such term
in Recital B 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.
"GAAP" means generally accepted accounting principles in
effect in the United States of America from time to time.
"Governmental Authority" means any nation or government, any
state, regional, local or other political subdivision thereof, and any
entity or official exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"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).
"Material Adverse Change (or Effect)" means a change (or
effect), in the condition (financial or otherwise), properties, assets,
liabilities, rights, obligations, operations, business or prospects
which change (or effect) individually or in the aggregate, is
materially adverse to such condition, properties, assets, liabilities,
rights, obligations, operations, business or prospects.
"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.
23
24
"SEC" or "Commission" means the Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Tax Return" means any tax return, filing or information
statement required to be filed in connection with or with respect to
any Taxes; and
"Taxes" means all taxes, fees or other assessments, including,
but not limited to, income, excise, property, sales, franchise,
intangible, withholding, social security and unemployment taxes imposed
by any federal, state, local or foreign governmental agency, and any
interest or penalties related thereto.
10.2 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificates, reports or other documents made or
delivered pursuant hereto or thereto, unless the context otherwise requires.
(b) Terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
(c) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the neuter
and feminine, where the context so permits.
ARTICLE XI
TERMINATION, AMENDMENT AND WAIVER
11.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by mutual written consent of all of the parties hereto at
any time prior to the Closing; or
(b) by the Purchaser in the event of a material breach by the
Sellers or Brisbin 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.
11.2 EFFECT OF TERMINATION. Except as provided in Article IX, in the
event of termination of this Agreement pursuant to Section 11.1, this Agreement
shall forthwith become void; provided,
24
25
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 XII
GENERAL PROVISIONS
12.1 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.
100 N.E. Third Avenue, 2nd Floor
Ft. Lauderdale, FL 33301
Attn: Steven M. Dauria
Telecopy: (954) 627-5080
WITH A COPY TO:
Akerman, Senterfitt & Eidson, P.A.
SunTrust International Center
One S.E. Third Avenue, 28th Floor
Miami, Florida 33131
Attention: Edward L. Ristaino, Esq.
Telecopy: (305) 374-5095
(b) IF TO ANY OF THE SELLERS OR BRISBIN:
Iceland (Coral Springs), Inc.
Iceland Holdings, Inc.
Brian Brisbin
14 Duncan Street, 3rd Floor
Toronto, Canada M5H 3G8
Telecopy: (416) 591-9087
Attention: Brian Brisbin
25
26
WITH A COPY TO:
Shutts & Bowen
201 South Biscayne Boulevard
Miami, FL 33131
Attention: Joseph Bolton, Esq.
Telecopy: (305) 381-9982
12.2 ENTIRE AGREEMENT. This Agreement (including the Exhibits and
Schedules attached hereto) and other documents delivered at the Closing pursuant
hereto, contains the entire understanding of the parties in respect of its
subject matter and supersedes all prior agreements and understandings (oral or
written) between or among the parties with respect to such subject matter. The
Exhibits and Schedules constitute a part hereof as though set forth in full
above.
12.3 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
parties hereto agree that any and all taxes or any other expenses incurred by
the parties in connection with the closing of the transactions shall be borne
equally by the parties.
12.4 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 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.
12.5 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 or Brisbin without the prior
written consent of the Purchaser.
12.6 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.
26
27
12.7 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.
12.8 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.
12.9 ARM'S LENGTH NEGOTIATIONS. Each party herein expressly represents
and warrants to all other parties hereto that (a) before executing this
Agreement, said party has fully informed itself of the terms, contents,
conditions and effects of this Agreement; (b) said party has relied solely and
completely upon its own judgment in executing this Agreement; (c) said party has
had the opportunity to seek and has obtained the advice of counsel before
executing this Agreement; (d) said party has acted voluntarily and of its own
free will in executing this Agreement; (e) said party is not acting under
duress, whether economic or physical, in executing this Agreement; and (f) this
Agreement is the result of arm's length negotiations conducted by and among the
parties and their respective counsel.
27
28
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/William M. Pierce
-------------------------------------
Name: William M. Pierce
--------------------------------
Title: Vice President
-------------------------------
ICELAND HOLDINGS, INC., a Delaware
corporation
By: /s/ Brian Brisbin
-------------------------------------
Name: Brian Brisbin
--------------------------------
Title: President
-------------------------------
ICELAND (CORAL SPRINGS) CORP., a
Delaware corporation
By: /s/ Brian Brisbin
-------------------------------------
Name: Brian Brisbin
--------------------------------
Title: President
-------------------------------
/s/ Brian Brisbin
----------------------------------------
BRIAN BRISBIN, individually
28