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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
(Mark one)
(X) Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the quarterly period ended June 30, 1997.
( ) Transition report pursuant to Section 13 or 15(d) of The Securities
Exchange Act of 1934 for the transition period ___ to ___.
Commission File No. 0-28044
PENSKE MOTORSPORTS, INC.
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(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 51-0369517
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(State or other jurisdiction of incorporation or organization) (IRS Employer Identification No.)
13400 OUTER DRIVE WEST, DETROIT, MICHIGAN 48239-4001
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(Address of principal executive offices) (including zip code)
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313-592-8255
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(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
COMMON STOCK $0.01 PAR VALUE 14,148,340 SHARES
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CLASS OUTSTANDING AT AUGUST 1, 1997
This report contains 16 pages.
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Penske Motorsports, Inc. Form 10-Q (continued)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PENSKE MOTORSPORTS, INC.
Date: August 22, 1997 By: /s/ James H. Harris
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Its: Senior Vice President and Treasurer
(Principal Financial Officer)
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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10.1 Purchase Agreement dated July 23, 1997, among Homestead-Miami Speedway,
LLC, International Speedway Corporation, Penske Motorsports, Inc.,
Homestead Motorsports Joint Venture, Miami Motorsports Joint Venture,
Rafael A. Sanchez and Wayne Huizenga.
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EXHIBIT 10.1
PURCHASE AGREEMENT
THIS AGREEMENT made and entered into on this 23rd day of July, 1997 by and
among Homestead-Miami Speedway, LLC, a Delaware limited liability company (the
"Company"), International Speedway Corporation, a Florida corporation ("ISC"),
Penske Motorsports, Inc., a Delaware corporation ("PMI"), Homestead Motorsports
Joint Venture, a Florida general partnership ("HMJV"), Miami Motorsports Joint
Venture, a Florida general partnership ("MMJV"), Rafael A. Sanchez ("Sanchez")
and Wayne Huizenga ("Huizenga").
WITNESSETH
WHEREAS, HMJV and MMJV have formed the Company, and
WHEREAS, simultaneously with the execution hereof, HMJV and MMJV intend to
transfer to the Company certain assets related to the Homestead Motorsports
Complex subject to certain liabilities on the terms hereinafter set forth, and
WHEREAS, ISC and PMI directly or through affiliates intend to purchase
from HMJV and MMJV certain membership interests in the Company on the terms
hereinafter set forth, and
WHEREAS, the parties hereto desire to set forth certain agreements
regarding the formation of the Company and subsequent sale of membership
interests in the Company
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
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1. FORMATION OF THE COMPANY.
Prior to the date of this Agreement, HMJV and MMJV (sometimes hereinafter
referred to individually as a "Seller" and jointly as the "Sellers") have
caused the Company to be formed as a limited liability company under the
Delaware Limited Liability Company Act by filing a Certificate of Formation in
the form attached as Exhibit A hereto. Prior to the date of this Agreement,
the Sellers as the sole members of the limited liability company have adopted
the agreement (the "Operating Agreement") attached as Exhibit B hereto as the
Operating Agreement for the Company. Such Certificate of Formation and
Operating Agreement have not been amended prior to the date hereof.
2. TRANSFER OF ASSETS.
Simultaneously with the execution hereof, Sellers shall sell, convey,
assign, transfer and deliver to the Company solely in exchange for all the
membership interests in the Company, all of Sellers' right, title and interest
in then existing properties, assets and business as a going concern (except for
the assets described on Schedule 2.0 hereto (the "Excluded Assets")) of every
kind and nature, real, personal or mixed, tangible or intangible, wherever
located, and whether on or off the books of Seller relating to the business of
Sellers (collectively, the "Transferred Assets"), including, without
limitation, the following:
2.1 The business of staging and promoting motorsports events as well as
operating the motorsports complex known as the "Homestead Motorsports Complex"
(the "Complex") including without limitation, with respect to such business,
the following: (a) Sellers' rights as the licensee of the name of the Complex,
its trademark or marks and all goodwill associated with Sellers' business; (b)
all arrangements and relationships with motorsports sanctioning bodies,
sponsors, and others with respect to Sellers' business which are not included
in the Contracts specified below; and (c) all lists
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of ticket purchasers, correspondence and records and all copies thereof,
advertising and promotional materials, forms and other property, tangible or
intangible, owned and/or used by Sellers in connection with the operation of
Sellers' business whether or not reflected on Sellers' books of account. All
trademarks, service marks, trade names and copyrights belonging to Sellers are
identified on Schedule 2.1 hereto and are being transferred to Purchaser
hereunder (the "Proprietary Rights");
2.2 All of Sellers' furniture, fixtures, equipment, improvements,
machinery, furnishings, motor vehicles, office equipment, art work, trophies,
promotional material, programs, videos, films, office memorabilia, trade
premiums, tools and other articles of personal property, whether on or off the
books of Seller, used or usable in connection with the business of Sellers (the
"Furniture, Fixtures and Equipment"), the material items of which are described
on Schedule 2.2 hereto;
2.3 All of Sellers' right, title and interest, as lessee(s), (including
without limitation, as lessee(s) under the Agreement executed September 18,
1995 among HMJV, Sanchez and the City of Homestead relating to the Complex (the
"Homestead Lease"), which leases are described and are identified on Schedule
2.3 hereto (the "Real Property Leases");
2.4 All of Sellers' right, title and interest, as lessee(s), in any
personal property used in connection with the business of Sellers, including,
without limitation, leases for grandstand bleachers, if any, which leases are
described and are identified on Schedule 2.4 hereto (the "Equipment Leases");
2.5 All product designs, licenses, franchises, memberships, permits, trade
secrets, common law rights, privileges and general intangibles owned or used by
Sellers in connection with their business (the "Intangible Rights");
2.6 All accounts and notes receivable, contract signing bonuses and
prepaid expenses (including, without limitation, prepaid insurance premiums,
deposits,
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advertising materials, and brochures) arising out of or relating to
events, transactions, or services occurring or scheduled to occur at the
Complex (the "Accounts Receivable");
2.7 All supplies and sundry items (the "Supplies"), including, without
limitation, telephone numbers, key and lock combinations, computer software
programs and systems, customer records, and books and records of, or relating
to and material to the operation of, the business of Sellers, the Transferred
Assets and the obligations and liabilities of Sellers transferred to the
Company (including all customer files, supplier records and records relating to
accounts payable) but excluding (i) copies of tax returns and accounting
records for the Sellers, (ii) records relating solely to executory contracts
not transferred to the Company, and (iii) records related to the Excluded
Assets;
2.8 Copies of all personnel records and payroll records for the then
current and preceding calendar years since the date of formation of the Sellers
for all persons who have worked for the business of Sellers at any time during
such period (the "Personnel Records");
2.9 All right, title and interest of Sellers in any merchandising,
concession, sponsorship, sanction agreements or other agreements, contracts
and licenses to which either of the Sellers is a party (the "Contracts"), all
the Contracts involving aggregate amounts in excess of $5,000 or which cannot
be fully terminated by Sellers upon not more than 30 days notice being listed
on Schedule 2.9;
2.10 All cash and cash equivalents ("Cash") (including but not limited to
prepayments) of Sellers;
2.11 All rights of Sellers arising under barter transaction arrangements.
All barter transaction arrangements entered into by either of the Sellers
during the twelve month period prior to the Closing involving bartered goods or
services having a fair market value in excess of $5,000 are described on
Schedule 2.11;
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2.12 Copies of all surveys, site inspections, plans and specifications and
"as built" drawings relating to the Complex in the possession or control of the
Sellers; and
2.13 All other assets of Sellers of whatever nature or description,
whether tangible or intangible, not otherwise detailed above, including,
without limitation, all claims and causes of action against third parties,
warranties, refunds and all licenses, franchises, permits, liquor licenses and
other governmental authorizations and permits affecting or relating to the
business of Sellers, so that the Company may carry on the business of Sellers
as presently conducted after the Closing Date ("Miscellaneous Assets").
3. ASSUMPTION OF LIABILITIES.
3.1 Assumption and Payment of Certain Liabilities and Obligations.
Simultaneously with the transfer to the Company of the Transferred Assets, the
Company shall assume those liabilities and obligations of Sellers listed on
Schedule 3.1 hereto (the "Assumed Liabilities") and shall assume and agree to
perform Sellers' unexecuted obligations and liabilities under the Contracts
listed on Schedule 2.9 hereto and the Contracts which are not required to be
listed on Schedule 2.9 hereto by the terms of paragraph 2.9, the Real Property
Leases listed on Schedule 2.3 hereto and the Equipment Leases listed on
Schedule 2.4 hereto, all relating to the business of Sellers from and after the
date of this Agreement.
3.2 Nonassumption of other Liabilities. Other than the Assumed
Liabilities, the Contracts specified in paragraph 3.1, the Real Property
Leases and the Equipment Leases, the Company does not assume and shall in no
event be liable for any liabilities, debts or obligations of Sellers, whether
accrued, absolute, matured, contingent or otherwise, including, without
limitation, taxes of any kind, any liabilities for fees or expenses incident to
the preparation of this Agreement or the consummation of the transactions
contemplated hereby, including, without limitation, counsel, accountant's
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or finder's fees of Sellers, liabilities under Employee Benefit Plans (as
defined in paragraph 7.16 below), other trade payables or expenses, debt,
contracts, agreements, leases or other obligations which are not specifically
assumed hereunder. Except as listed on Schedule 3.1 hereto, the Company shall
not assume or be obligated to pay any liability or obligations of Sellers to
any affiliates of the Sellers. Notwithstanding the foregoing terms of this
paragraph 3.2, Purchasers and Sellers shall remain responsible for their
respective obligations pursuant to paragraph 17 below.
4. NON-ASSIGNABLE PURCHASED ASSETS.
Notwithstanding the foregoing, Sellers shall hold in trust for the benefit
of and account of the Company, any non-assignable Transferred Assets and all
Transferred Assets with respect to which consents to assignments shall not have
been obtained prior to the date of this Agreement and, insofar as permissible,
assign to the Company, from time to time, all of such Transferred Assets, and
remit to the Company all amounts paid to Sellers with respect thereto after the
date of this Agreement promptly upon the receipt thereof less all charges
properly allocable thereto other than charges resulting from new agreements
entered into in connection with or in contemplation of the consummation of the
transactions contemplated hereby. Schedule 4 hereto lists all consents
required to transfer the Transferred Assets to the Company . Nothing contained
herein shall relieve Sellers of their joint and several obligation hereunder
either (i) to obtain at their expense all necessary consents not disclosed on
Schedule 4 to the assignment of the Transferred Assets or (ii) to indemnify the
Company for any loss, liability or damage suffered by the Company resulting
from any failure to obtain necessary consents not disclosed on Schedule 4 to
the assignment of any of the Transferred Assets. After the date of this
Agreement, Sellers shall use their commercially reasonable efforts to obtain
all necessary consents disclosed on Schedule 4 which were not obtained by the
date of this Agreement; provided however, that Sellers
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are not obligated to make total expenditures with respect to efforts to obtain
such consents (other than expenditures to be reimbursed by the Company) in
excess of $50,000.
5. TRANSFER OF EMPLOYEES AND EMPLOYEE BENEFITS.
5.1 Workers' Compensation. Sellers shall be responsible for any workers
compensation claims based on injuries occurring prior to the date of this
Agreement regardless of the date on which the claim was filed, and Sellers
shall jointly and severally indemnify and hold the Company harmless against any
and all losses, damages, costs and expenses (including, without limitation,
reasonable attorney's fees and related expenses) arising out of or relating to
all such claims in accordance with paragraph 13.1 hereof. The Company shall be
responsible for all such claims of its employees based on injuries occurring on
and after the date of this Agreement and shall indemnify and hold Sellers
harmless against any and all losses, damages, costs and expenses (including,
without limitation, reasonable attorneys fees and related expenses) arising out
of or relating to all such claims in accordance with paragraph 13.2 hereof.
5.2 Transfer of Employees. The Company shall employ on the date of this
Agreement, all of the present employees of the business of Sellers but the
Company shall be under no obligation to continue to do so. Company shall not
be obligated to assume the current employment contracts between Sellers and
either Jorge L. Dominicis or Robert Wild. Except for the employment rights for
Sanchez arising under the employment contract specified in paragraph 6.5(m)
below, nothing in this Agreement shall create any employment rights for any
current employees of the Sellers.
5.3 Employee Benefit Plans. The Company shall not have any liability or
obligation to continue or to make any contribution or payment with respect to
any Employee Benefit Plan (as defined in paragraph 7.16) maintained by Sellers
for employees, whether salaried or hourly. If the Company is compelled to make
any
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contribution or payment or pay any claim by a competent authority in respect of
any Employee Benefit Plan, Sellers shall severally indemnify and hold the
Company harmless against any and all losses, damages, costs, contribution
obligations and expenses (including, without limitation, reasonable attorney's
fees and related expenses arising therefrom or relating thereto) as provided in
paragraph 13.1 hereof. To the extent that either Seller shall incur liability
for withdrawal under any multi-employer pension plan to which it may be a
party, or for any other unfunded benefit liabilities, Sellers shall bear all
such liability and shall jointly and severally indemnify and hold the Company
harmless against such liability.
6. PURCHASE OF MEMBERSHIP INTERESTS AND THE CLOSING.
6.1 Purchase Of Membership Interests. On the Closing Date (as hereinafter
defined), (a) the Sellers shall each (i) sell to ISC, or at the election of
ISC, to a subsidiary or other entity wholly owned by ISC (an "ISC Affiliate"),
a twenty percent (20%) limited liability company interest in the Company (such
two twenty percent (20%) interests are referred to in the aggregate as the
"ISC Interest") and (ii) sell to PMI, or at the election of PMI, to a
subsidiary or other entity wholly owned by PMI (a "PMI Affiliate"), a twenty
percent (20%) limited liability company interest in the Company (such two
twenty percent (20%) interests are referred to in the aggregate as the "PMI
Interest"), (b) ISC or an ISC Affiliate shall purchase the ISC Interest and (c)
PMI or a PMI Affiliate shall purchase the PMI Interest. The sale of the ISC
Interest and the PMI Interest shall be on the terms and subject to the
conditions hereinafter set forth. Upon the occurrence of such sale, ISC or an
ISC Affiliate and PMI or a PMI Affiliate shall each become a member of the
Company with a forty percent (40%) limited liability company interest in the
Company. The entities acquiring the ISC Interest and the PMI Interest are
sometimes hereinafter referred to as the "Purchasers", and the ISC Interest and
the PMI Interest are sometimes referred to as the "Membership Interests."
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6.2 Purchase Price. The total purchase price for the ISC Interest shall
be $11,800,000 (the "ISC Interest Purchase Price") to be paid by ISC as
specified in paragraph 6.3 below. The total purchase price for the PMI
Interest shall be $11,800,000 (the "PMI Interest Purchase Price") to be paid
by PMI as specified in paragraph 6.3 below.
6.3 Payment of Purchase Price. Ninety-three point six four four one
percent (93.6441%) of the ISC Interest Purchase Price and the PMI Interest
Purchase Price (collectively the "Purchase Price") to be made by Purchasers
pursuant to paragraph 6.2 hereof shall be made at the Closing (as hereinafter
defined) by wire transfer for the account of Sellers. At the Closing, six
point three five five nine percent (6.3559%) of the Purchase Price shall be
paid by Purchasers into an interest bearing escrow account to be maintained
with the law firm of Black, Crotty, Sims, Hubka, Burnett, Birch and Samuels,
L.L.P. to be held and distributed in accordance into the provisions of
paragraph 13.1 below.
6.4 The Closing. The "Closing" or "Closing Date" means the time at which
Sellers effect the transfer of the ISC Interest and the PMI Interest (jointly
the "Membership Interests") in exchange for the consideration to be delivered
by Purchaser pursuant to paragraph 6.2 hereof. The Closing shall take place at
the Complex at 10:00 a.m. local time not later than July 31, 1997, unless the
parties shall in writing agree to another time and/or date.
6.5 Certain Events at Closing. At the Closing, in addition to such other
actions as may be provided for herein, the following actions shall be taken:
(a) Sellers shall deliver to Purchasers duly executed and acknowledged
assignments of the Membership Interests, in a form and substance reasonably
satisfactory to counsel for Purchasers, as Purchasers shall reasonably request
to effectively vest in them all of the right, title and interest of Sellers in
the Membership
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Interests, free and clear of all mortgages, liens and encumbrances of any kind
whatsoever.
(b) The parties hereto shall cause the Company to execute such documents
as may be necessary to permit the Company to obtain a minimum $10,000,000
credit facility (the "Facility") either from a lender selected by ISC and PMI
or, at the option of ISC and PMI, directly from ISC and PMI (or their
affiliates) on terms approved by ISC and PMI. ISC and PMI agree to guaranty
the Facility if necessary in order to obtain the Facility.
(c) The City of Homestead shall have issued a letter substantially in the
form of the letter attached as Exhibit C hereto consenting to the assignment of
the Homestead Lease, as amended, to the Company or shall have otherwise
provided its consent to the assignment by execution of an assignment and
assumption agreement in a form reasonably satisfactory to the Purchasers.
(d) The Company shall assume, or if it cannot be assumed in a timely
manner, the Company shall refinance the principal balance (which will not
exceed $18,500,000) plus accrued interest from May 31, 1997 on the $18,500,000
loan from Chase Manhattan Bank to the Sellers identified on Schedule 3.1
hereto, and ISC and PMI will guaranty such loan or refinancing if necessary to
cause Sellers, Sanchez and Huizenga to be released from liability with respect
to the loan or refinancing. At the option of ISC and PMI, they may elect to
provide short term refinancing directly to the Company on commercially
reasonable terms.
(e) The parties shall take such action as shall be necessary to cause the
Company to make a draw against the Facility sufficient to pay The H Group, Inc.
the $2,846,068 balance due from HMJV to The H Group, Inc. pursuant to the
terms of the Restated Promissory Note dated December __, 1996 (the "H Group
Note").
(f) The Sellers shall pay $600,000 to the Company (reduced by the amount
of any unreimbursed capital contributions made to Sellers after close of
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business on June 30, 1997 (the "Effective Time") and prior to the date of this
Agreement) as an additional capital contribution to be applied against
liabilities transferred to the Company in accordance with the terms of
paragraph 3.1 above.
(g) The parties hereto shall cause the Company to reimburse the Sellers
for documented expenditures made by Sellers through the Closing Date with
respect to the turn reconfiguration project at the Complex (the "Turn Project")
provided, however, that such reimbursement amount shall in no event exceed
$8,200,000, less the total expenditures (including payment of outstanding
invoices) necessary to complete the Turn Project.
(h) Purchasers shall deliver to Sellers and the Escrow Agent the cash
payment as provided in paragraph 6.3 hereof.
(i) Sellers shall deliver to Purchasers the opinion of counsel provided
for in paragraph 10.5 hereof.
(j) Purchasers shall deliver to Sellers the opinion of counsel provided
for in paragraph 11.4 hereof.
(k) Sellers shall deliver to Purchasers the certificate provided for in
paragraph 10.2 hereof.
(l) Purchasers shall deliver to Sellers the certificate provided for in
paragraph 11.2 hereof.
(m) The Company and Sanchez shall enter into an employment contract
substantially in the form to be negotiated by the Company and Sanchez prior to
the date of this Agreement.
(n) The Company shall have repaid the H Group Note in full.
(o) Sellers shall have delivered the original H Group Note to the Company
marked "paid and satisfied."
(p) Sellers will assign and transfer to Sanchez, or an entity wholly owned
by him, a ten percent (10%) limited liability company interest in the Company.
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(q) Sellers will assign and transfer to Huizenga, or an entity wholly
owned by him, a ten percent (10%) limited liability company interest in the
Company.
(r) Purchasers shall have delivered to the City and Sun Trust Bank,
Miami, National Association ("Sun Trust") a pro forma balance sheet for the
Company reflecting the financial condition of the Company after the Closing.
7. REPRESENTATIONS OF SELLERS
The following representations and warranties are made, jointly and
severally, by Sellers to the Purchasers in order to induce them to purchase the
Membership Interests:
7.1 Organization and Qualification. Each of the Sellers is a general
partnership duly formed and validly existing under the laws of the State of
Florida; has all requisite power and authority to own its property and to carry
on its business as now being conducted; and is duly qualified to do business in
each jurisdiction in which the character of its properties and assets owned or
leased or the nature of its business transacted, makes such qualification
necessary. Copies of the Joint Venture Agreements for each of the Sellers, as
amended to date, (the "Joint Venture Agreements") which have been delivered to
Purchasers are complete and correct, and no amendments have been made thereto
since the date hereof.
7.2 Subsidiaries and other Equity Investments. Neither Seller owns,
directly or indirectly, any shares of capital stock of any corporation or any
equity investment in any partnership, association or other business
organization.
7.3 Partnership Authority. Each Seller has the full power and authority
to enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement by each Seller and the performance by
it of all obligations contemplated hereby have been duly authorized by all
requisite partnership actions including the approval of all the partners of
each Seller. This Agreement and all other agreements entered into in
connection with the transactions contemplated hereby to
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which a Seller is a party constitute, or will constitute upon execution and
delivery, the valid and legally binding obligations of Sellers enforceable
against each Seller in accordance with their respective terms.
7.4 No Violations. Neither the execution nor delivery of this Agreement,
the consummation of any of the transactions contemplated hereby, nor the
fulfillment of any of the terms hereof except to the extent disclosed herein or
in any Schedule hereto (i) will violate or conflict with the Joint Venture
Agreements, (ii) will result in any breach of or default under any provision of
any contract or agreement of any kind to which either Seller is a party or by
which either Seller is bound or to which any property or asset of either
Seller is subject, which would have a material adverse effect on the
Transferred Assets, or (iii) will result in a violation of any statutes, laws,
ordinances, rules, regulations or requirements of governmental authorities
having jurisdiction over Sellers or the business of Sellers.
7.5 Financial Statements. Sellers have delivered to Purchasers the
combined balance sheets at December 31, 1995 and 1996 and the related combined
statements of income, partners' equity and cash flow for each of the two years
in the period ended December 31, 1996 (collectively, the "Year-End Financial
Statements"). The Year-End Financial Statements have been audited by Deloitte
& Touche LLP. The Year-End Financial Statements are correct and complete and
present fairly the financial position of Sellers at December 31, 1996 and 1995,
and the results of their operations and changes in their financial positions
for the fiscal years 1996 and 1995, in conformity with generally accepted
accounting principles applied on a basis consistent with that of the preceding
years. Sellers have also delivered to Purchasers the unaudited balance sheet
and the statement of income of Seller for the six month period ended June 30,
1997, prepared internally in accordance with generally accepted accounting
principles applied on a basis consistent with the prior periods (the "Interim
Financial Statements"). The Interim Financial Statements are correct and
complete and present
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fairly the financial position of Sellers at June 30, 1997, and the results of
its operations and changes in the financial position for the period ended June
30, 1997 in conformity with generally accepted accounting principles applied on
a basis consistent with that of preceding periods except for normal year end
adjustments. The Year-End Financial Statements and the Interim Financial
Statements are sometimes collectively referred to herein as the "Financial
Statements". The Financial Statements are collectively attached as Exhibit D
hereto.
7.6 No Undisclosed Liabilities, Etc. Except as disclosed in the Financial
Statements or any Schedule delivered pursuant hereto, since December 31, 1996
(except (i) for the transactions contemplated by this Agreement, and (ii) as
set forth in Schedule 3.1 or elsewhere in this Agreement):
(a) Sellers have not incurred any liability or obligation (absolute,
accrued, contingent or otherwise) of any nature, other than liabilities and
obligations incurred in the ordinary course of business; and
(b) All inventories acquired by Sellers, whether reflected in the
Financial Statements or otherwise have been acquired in the ordinary course of
their business in quantities that are not materially greater or less than those
required for the current or anticipated operation of its business and except
for a reasonable allowance for defective materials and deterioration, consist
of good and serviceable items usable or salable in the ordinary course of
business.
7.7 Absence of Certain Changes. Except as disclosed in the Financial
Statements or in any Schedule delivered pursuant hereto, since December 31,
1996 (except for (i) the formation and capitalization of the Company, (ii) the
execution and delivery of this Agreement and (iii) as set forth in Schedule
7.7), neither Seller has:
(a) had any change in its condition (financial or otherwise), present
operations, business, properties, assets, or liabilities, other than changes in
the ordinary course of business, none of which has been materially adverse;
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(b) suffered any damage, destruction or loss of physical property (whether
or not covered by insurance) materially and adversely affecting its condition
or operations;
(c) incurred or agreed to incur any indebtedness for borrowed money;
(d) paid or obligated itself to pay in excess of $25,000 in the aggregate
for fixed assets;
(e) suffered any substantial losses or waived any substantial rights of
any value in excess of $25,000;
(f) sold, transferred or otherwise disposed of, or agreed to sell,
transfer or otherwise dispose of, any assets having a fair market value at the
time of sale, transfer or disposition of $25,000 or more in the aggregate, or
cancelled, or agreed to cancel, any debts or claims in the amount of $10,000 or
more in the aggregate, other than in the ordinary course of business and
consistent with past practice;
(g) mortgaged, pledged or subjected to any charges, liens, claims or
encumbrances, or agreed to mortgage, pledge or subject to any charges, liens,
claims or encumbrances, any of its properties or assets other than construction
related liens arising in the ordinary course of business;
(h) made any distribution to its partners;
(i) increased, or agreed to increase, the compensation or bonuses or
special compensation of any kind of any of its officers, employees or agents
over the rate being paid to them on December 31, 1996, other than merit,
incentive, and/or cost-of-living increases made in the ordinary course of
business following past practice or increases in accordance with the terms of
contracts disclosed on Schedule 2.9, and no such increases are required by
written agreement, or adopted or increased any benefit under any insurance,
pension or other employee benefit plan, program or arrangement made to, for or
with any such officer, employee or agent;
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(j) incurred any material obligation or liability (absolute or
contingent) for borrowed money, except current liabilities incurred and
obligations under contracts entered into in the ordinary course of business;
(k) discharged or satisfied any lien or encumbrance or paid any
obligation or liability (absolute or contingent) other than current liabilities
reflected in the Year-End Financial Statements or incurred since December 31,
1996 in the ordinary course of business;
(l) entered into any lease of real or personal property which
provides for an annual rental in excess of $25,000 and which is of a duration
of more than one year;
(m) except for the amendment to the Homested Lease reflected on
Exhibit E hereto, made or permitted any material amendment or termination of
any material contract, agreement or license to which such Seller is a party
other than in the ordinary course of business;
(n) had any resignation or termination of employment of any of its key
officers or key employees or received written notification of any impending or
threatened resignation or resignations or termination or terminations of
employment that would have a material adverse effect on its operations or
business;
(o) had any strike, work stoppage or any other labor dispute;
(p) made any change in its accounting methods or practices with
respect to its condition, operations, business, properties, assets or
liabilities; or
(q) entered into any transaction not in the ordinary course of its
business.
7.8 Title to and Condition of Properties and Assets. Immediately prior to
the time of transfer of the Transferred Assets to the Company as contemplated
in paragraph 2 above (the "Transfer Time"), Sellers had good title to all of
their tangible personal properties including, without limitation, (i) all those
used in the business of
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Sellers and (ii) those reflected in the Financial Statements (except as sold or
otherwise disposed of in the ordinary course of business). All tangible
personal properties are subject to no mortgage, pledge, conditional sales
contract, lien, security interest, right of possession in favor of any third
party, claim or other encumbrance, except (i) the lien of current real estate
taxes not yet due and payable, (ii) as set forth in Schedule 7.8, (iii) as
reflected in the Financial Statements, (iv) for such minor imperfections of
title, if any, as do not interfere with the present use of the property or
properties subject thereto or affected thereby in a manner materially adverse
to the business of Sellers, and (v) for liens not material in amount and
arising from the ordinary course of conduct of the business of Sellers.
Immediately prior to the Transfer Time, all such properties and assets
reflected in the Financial Statements had a fair market or realizable value
determined on a going business basis at least equal to the value thereof as
reflected herein. Subsequent to December 31, 1996, except as contemplated by
this Agreement, Sellers have not sold or disposed of any of their tangible
personal properties or assets or obligated themselves to do so except in the
ordinary course of business. Except as disclosed on Schedule 2.2, the
facilities, machinery, furniture, office and other equipment (including
computer software) of Sellers that were transferred to the Company as
contemplated in paragraph 2 above, are in good operating condition and repair,
subject only to ordinary wear and tear. Sellers have not received any written
notice from any governmental agency, board, bureau, body, department or
authority of any federal, state, municipal or foreign jurisdiction, to the
effect that Sellers or any tangible personal property or asset owned or leased
by Sellers, which was transferred to the Company as contemplated in paragraph 2
above, is in violation of any applicable ordinance, regulation or building,
zoning, environmental or other law in respect thereof, the violation of which
will have a material adverse effect on the conduct of the business or the
ownership or use of any of such properties or assets. Since December 31, 1996,
except as disclosed on Schedule 7.8, there has not been any significant
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<PAGE> 18
interruption of the operations of Sellers due to inadequate maintenance of
structures, machinery or equipment or because of computer software or data
processing failures.
7.9. Real Estate Leases.
(a) Schedule 2.3, sets forth a list of the Real Property Leases.
Sellers have furnished Purchasers with a copy of the Real Property Leases.
Each Real Property Lease is in full force and effect against the Company and is
valid and enforceable by the Company, in accordance with its terms, assuming
the due authorization, execution and delivery thereof by each of the other
parties thereto. There is not under any Real Property Lease any material
default of Sellers or the Company, or any event that with notice or lapse of
time or both would constitute such a material default with respect to which
Sellers have not taken adequate steps to prevent such default from occurring;
all of such events, if any, and the aforesaid steps taken by Sellers are set
forth in Schedule 7.9. To the knowledge of Sellers, there is not under any
Real Property Lease any default by any other party thereto or any event that
with notice or lapse of time or both would constitute such a default thereunder
by such party.
(b) Sellers have not received any written notice that the use of any
improvements to the property subject to the Real Property Leases and the
conduct of Sellers' business thereon prior to the Closing was in violation of
any law, statute, ordinance, rule or regulation of any government, governmental
body, agency or authority (federal, state, municipal, foreign or local) in any
material respect.
(c) Except as disclosed on Schedule 7.9 hereto, to the knowledge of
Sellers there are no material defects or deficiencies with respect to the
design or construction of the Complex.
7.10 Contracts. Except as set forth on Schedule 2.9 or as otherwise
disclosed in or pursuant to this Agreement, including any Schedule or
attachment hereto, immediately prior to the Transfer Time, Sellers were not a
party to any written or oral:
(i) contract with any labor union;
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(ii) any employment contract or any consulting or other
contract not terminable on thirty days advance notice for services
involving a payment of more than $25,000 annually;
(iii) lease whether as lessor or lessee with respect to any
property, real or personal involving a payment of more than
$25,000 annually;
(iv) license agreement whether as licenser or licensee
relating to the business or any of the properties or assets of
Seller involving the payment of more than $25,000 annually;
(v) loan agreement or instrument relating to any debt
involving the payment of more than $25,000 annually;
(vi) contract of purchase or sale involving the payment of
more than $25,000 annually;
(vii) contract with any agent involving the payment of more
than $25,000 annually;
(viii) stand-by letter of credit, guarantee or performance
bond involving more than $25,000;
(ix) contract or agreement restricting the ability of the
Sellers from freely engaging in any business or competing anywhere
in the world;
(x) contract not made in the ordinary course of business
involving the payment of more than $25,000 annually;
(xi) contract with any party that to the knowledge of Sellers
is expected to result in a material loss; or
(xii) other contract or agreement, except insubstantial
contracts for supplies or services or not involving the payment of
more than $25,000 annually.
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<PAGE> 20
Except as set forth on Schedule 2.9 or otherwise herein, immediately prior
to the Transfer Time, neither Seller was a party to any material contract with
any governmental authority. Each Contract listed in Schedule 2.9 was in full
force and effect against Sellers and is valid and enforceable by Sellers, in
accordance with its terms, assuming the due authorization, execution and
delivery thereof by each of the other parties thereto. Neither of the Sellers
nor, to the knowledge of Sellers, any other party is in default in the
observance or the performance of any material term or obligation to be
performed by it under any Contract listed in said Schedule 2.9. To the
knowledge of Sellers, no other person is in default in the observance or the
performance of any material term or obligation to be performed by it under any
Contract listed in said Schedule 2.9. Sellers will provide to Purchasers prior
to the Closing Date true and complete copies of all Contracts listed in
Schedule 2.9 as in effect on the date hereof.
7.11 Certain Indebtedness. Schedule 7.11 is a correct and complete list
of all instruments, agreements and arrangements pursuant to which either Seller
has borrowed money, incurred any indebtedness or established any line of credit
which represents a liability of such Seller immediately prior to Transfer Time.
True and complete copies of all such instruments, agreements and arrangements
that are in writing and summaries of all others thereof have heretofore been
delivered to Purchasers. All of such indebtedness has been incurred for valid
business purposes of Sellers. Sellers were not in material default under any
indenture, loan agreement or any other agreement relating to borrowed money to
which either of the Sellers is a party or by which either of the Sellers or
their assets or properties are bound nor did any condition exist which, with
notice or lapse of time or both, would constitute such a default, and each such
indenture, loan agreement or other agreement was in full force and effect
against Sellers.
7.12 Litigation. Except as set forth on Schedule 7.12, immediately prior
to the Transfer Time, there were no actions, suits, proceedings or
investigations, either at law
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or in equity, or before any commission or other administrative authority in any
federal, state, municipal or foreign jurisdiction, of any kind now pending or,
to the best of knowledge of Sellers, threatened or proposed in any manner, or,
to the knowledge of Sellers, any circumstances which reasonably form the basis
of any such action, suit, proceeding or investigation, involving Sellers or any
of their properties or assets that (i) if asserted and decided adversely to
Sellers, would materially and adversely affect the operations or the business
of Sellers, or of the Company or its successors or assigns with respect to the
Transferred Assets, or (ii) questions the validity of this Agreement, or (iii)
seeks to delay, prohibit or restrict in any manner any action taken or
contemplated to be taken by Sellers under this Agreement. Except as set forth
in Schedule 7.12, there is no arbitration proceeding pending or, to the
knowledge of Sellers, threatened with respect to individual claims under any
collective bargaining agreement or other agreement which claims, individually
or in the aggregate, if adversely decided could have a material adverse effect
on the business or operations of the Company. Neither the Company nor any of
its properties or assets is subject to any judicial or administrative judgment,
order, decree or restraint. Except as set forth on Schedule 7.12, there have
been no actions, suits, proceedings or investigations, either at law or in
equity, or before any commission or other administrative authority in any
federal, state, municipal or foreign jurisdiction of any kind which were
material and were initiated against either of the Sellers and settled or
otherwise resolved prior to the date hereof.
7.13 Proprietary Rights. Except as set forth on Schedule 7.13, there are
no claims, demands or proceedings pending or, to the actual knowledge of
Sellers, threatened that pertain to or challenge the right of Sellers or the
Company to use the Proprietary Rights identified in Schedule 2.1 and no valid
basis exists for any such claim. Neither of the Sellers knows of any third
party that has infringed on any of Sellers' Proprietary Rights. Except for the
transfer to the Company contemplated by this Agreement, Sellers have not
granted any licenses or other rights with respect to the
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<PAGE> 22
Proprietary Rights and has no legally binding obligation to grant licenses or
other rights. The Proprietary Rights identified in Schedule 2.1 constitute all
trademarks, service marks, trade names and copyrights which were owned by
Sellers and which are used or are required in connection with the operation of
Sellers' business including the operation of the Complex immediately prior to
the Transfer Time. Except for the rights of the City of Homestead and Dade
County specified in the Homestead Lease, and subject to the rights granted in
the Contracts disclosed on Schedule 2.9, Sellers are the sole and exclusive
owner of, and have the sole and exclusive right to use, the Proprietary Rights
all of which were assigned to the Company free and clear of all claims, liens,
charges or any encumbrances whatsoever. Except as disclosed in Schedule 2.1,
Sellers have not allowed any material Proprietary Rights to lapse.
7.14 Compliance with Laws. Sellers and the Company have complied with
and are in compliance with all material federal, state, local and foreign
statutes, laws, ordinances, regulations, rules, permits, judgments, orders or
decrees applicable to Sellers and the Company and their properties and assets,
operations and business, and there does not exist, to the best of Sellers'
knowledge, any basis for any claim of default under or violation of any such
statute, law, ordinance, regulation, rule, judgment, order or decree. In all
material respects immediately prior to the Transfer Time, Sellers were in
compliance with (i) all applicable requirements of all United States and
foreign governmental authorities with respect to environmental protection,
including, without limitation, regulations establishing quality criteria and
standards for air, water, land and hazardous materials, and (ii) all applicable
laws and related rules and regulations of all federal, state, municipal and
foreign jurisdictions affecting sale of alcoholic beverages, public health and
safety standards, labor union activities, handicapped access for facilities,
civil rights or employment, including without limitation, the Civil Rights Act
of 1964, the Age Discrimination in Employment Act of 1967, the Equal Employment
Opportunity Act of 1972, the Employee Retirement Income Security Act of
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<PAGE> 23
1974, as amended ("ERISA"), the Equal Pay Act, as amended, and the National
Labor Relations Act, as amended and to the knowledge of Sellers in all material
respects with the Americans With Disabilities Act, as amended.
7.15 Governmental Authorizations and Regulations. Schedule 7.15 lists all
licenses, franchises, permits and other governmental authorizations held by
Sellers immediately prior to the Transfer Time material to the conduct of their
business. Such licenses, franchises, permits and other governmental
authorizations were valid, and Sellers had not received any written notice that
any governmental authority intends to cancel, terminate or not renew any such
license, franchise, permit or other governmental authorization. The Company
holds all licenses, franchises, permits and other governmental authorizations
the absence of any of which would have a material adverse effect on its
business.
7.16 Employee Benefit Plans.
(a) Schedule 7.16 contains a true and complete list of all pension,
profit sharing, retirement, deferred compensation, stock purchase, stock
option, incentive, bonus, vacation, severance, disability, hospitalization,
medical insurance, life insurance and other employee benefit plans, programs or
arrangements, maintained by either Seller immediately prior to the Transfer
Time, or under which either Seller had any obligations (other than obligations
to make current wage or salary payments or sales commissions terminable on
notice of 30 days or less) in respect of, or which otherwise cover, any of the
officers or employees of either Seller, immediately prior to the Transfer Time,
or their beneficiaries (hereinafter individually referred to as a "Employee
Benefit Plan" and collectively referred to as the "Employee Benefit Plans").
Sellers have delivered or made available to Purchaser true and complete copies
of all documents, as they may have been amended to the date hereof, embodying
or relating to the Employee Benefit Plans. Except as provided therein, no
Employee Benefit Plan listed in Schedule 7.16 is funded through a trust that is
intended to be exempt from taxation
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<PAGE> 24
under Section 501(c) of the Internal Revenue Code of 1986, as amended, and any
successor thereto (the "Code").
(b) Except as set forth in Schedule 7.16, (i) Sellers have made all
payments due from it to date under or with respect to each Employee Benefit
Plan, and all amounts properly accrued to date as liabilities of Sellers under
or with respect to each Plan for the current plan years have been properly
recorded on the books of Sellers; (ii) Sellers have performed all material
obligations required to be performed by it under any Employee Benefit Plan,
and, to the knowledge of Sellers, no other party is in default thereunder or in
violation thereof; (iii) Sellers are in compliance in all material respects
with the requirements prescribed by all statutes, orders or governmental rules
or regulations applicable to the Employee Benefit Plans, including, without
limitation, ERISA and the Code; and (iv) neither of the Sellers nor, to the
knowledge of Sellers, any other "disqualified person" or "party in interest"
(as defined in Section 4975 of the Code and Section 3 of ERISA, respectively)
has engaged in any "prohibited transaction," as such term is defined in Section
4975 of the Code or Section 406 of ERISA, which would subject any Employee
Benefit Plan or its related trust, Sellers, the Company or any officer,
partner, director, member or employee of Sellers, the Company, or any trustee,
administrator or other fiduciary of any Employee Benefit Plan to any material
liability under Section 4975 of the Code or Section 502(i) of ERISA or any
material liability under Part 4 of Title I of ERISA; (v) there are no actions,
suits or claims pending (other than routine claims for benefits) or, to the
knowledge of Sellers, threatened, against any Employee Benefit Plan or against
the assets of any Plan; (vi) no Employee Benefit Plan, other than any Employee
Benefit Plan that is a multi-employer plan within the meaning of Section 3(37)
of ERISA, is subject to Part III of Subtitle B of Title I of ERISA or Section
412 of the Code; (vii) no Employee Benefit Plan, other than any Employee
Benefit Plan that is a multi-employer plan, as defined in paragraph (vi) above
is or was subject to
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<PAGE> 25
Title IV of ERISA and Sellers have not incurred any liability to the Pension
Benefit Guaranty Corporation ("PBGC").
(c) Except as set forth in Schedule 7.16, there are no multi-employer
plans, within the meaning of Section 3(37) of ERISA, to which Sellers are or,
at any time since their formation, have been required to make any contributions
to under which either Seller is subject to any material liability, actual or
contingent. With respect to each multi-employer plan listed in Schedule 7.16
that is or was subject to Title IV of ERISA (i) there has been no complete
withdrawal or partial withdrawal of either Seller, as defined in Section 4201,
4203 and 4205 of ERISA and neither Seller has received any notice of withdrawal
liability pursuant to Sections 4202 or 4219 of ERISA, (ii) neither Seller has
received, nor, to the knowledge of the Sellers, has any other employer
received, any notice pursuant to Section 4242 of ERISA that the plan is in
reorganization, and (iii) there is no other material fact known to Sellers or
the Owners relating to the withdrawal liability of Sellers which has not been
disclosed on Schedule 7.16, including any material fact relating to the
existence of an accumulated funding deficiency, as defined in Section 412 of
the Code or a determination that the plan is insolvent, in reorganization or
the subject of termination proceedings. The aggregate contingent withdrawal
liability of Sellers with respect to the multi-employer plans listed in
Schedule 7.16 does not exceed, as of the date hereof, $25,000.
(d) The current value of all vested Accrued Benefits under all Employee
Benefit Plans, other than multi-employer plans, as of the date of this
Agreement, did not exceed the then Current Value of the assets of such Plans
allocable to such vested Accrued Benefits by more than $25,000. For purposes
of the representation in the preceding sentence, (i) the term "Current Value"
has the same meaning as in section 4062(b)(1) of ERISA and the term "Accrued
Benefit" has the meaning specified in Section 3 of ERISA.
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<PAGE> 26
(e) Each "group health plan" (within the meaning of
Section 162(i)(3) of the Code) maintained by each of the Sellers has been
administered in compliance with the continuation coverage requirements
contained in the Consolidated omnibus Budget Reconciliation Act of 1985 and as
provided under Section 162(k) of the Code and all regulations promulgated or
proposed thereunder.
7.17 Accounts Receivable. All Accounts Receivable are listed on Schedule
7.17. The Accounts Receivable represent transactions actually made in the
ordinary course of business and relate to events, transactions or services
occurring or scheduled to occur at the Complex, and are current and collectible
without discount. Each of the Accounts Receivable listed on Schedule 7.17 will
be collected in full, without any set-off or counter claim, within 90 days
after the Closing Date (provided that the Company complies with its collection
efforts obligations under paragraph 9.2 below) except as noted on Schedule
7.17. With respect to the Accounts Receivable listed on Schedule 7.17 as
"collection doubtful within 90 days" (the "Slow Accounts"), such Slow Accounts
will be collected in full, without any set off or counterclaims, within 120
days after the Closing Date provided that the Company complies with its
collection efforts obligations under paragraph 9.2 below and subject to an
allowance of $25,000 for uncollectible Slow Accounts. Except as disclosed on
Schedule 7.17, since December 31, 1996 no Accounts Receivable of Sellers have
been written off as uncollectible.
7.18 Inventory. All inventories of Sellers reflected in the balance sheet
included with the Financial Statements consist of a quality and quantity usable
and salable in the ordinary course of business without material discount or
reduction, except for items of obsolete materials and materials of
below-standard quality, all of which have been written down on Sellers' June
30, 1997 balance sheet to realizable market value or for which adequate
reserves have been provided therein.
7.19 Taxes. Each of the Sellers has duly and timely filed, within
applicable extension periods, all tax reports and returns required to be filed
by it and Sellers have
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duly and timely paid all taxes with respect to the business of the Sellers by
federal, state, local or foreign taxing authorities (including, without
limitation, those due in respect of the tangible and intangible properties,
leasehold interests, income, franchises, licenses, sales or payrolls of
Sellers); and there are no tax liens or encumbrances upon any property or
assets of Sellers except liens for current taxes not yet due. The federal
partnership tax returns of Sellers have never been audited by the Internal
Revenue Service. Except to the extent set forth in Schedule 7.19, there are no
outstanding agreements or waivers extending the statutory period of limitation
applicable to any federal partnership tax return for any period. Copies of all
partnership tax returns for Sellers in respect of all years not barred by the
statute of limitations have heretofore been delivered by Sellers to Purchaser
and all such returns are listed in Schedule 7.19.
7.20 Insurance. Schedule 7.20 contains an accurate and complete
description of all material policies of fire, liability, workmen's
compensation, errors and omissions and other forms of insurance owned or held
by Sellers immediately prior to the Transfer Time. Immediately prior to the
Transfer Time, all such policies were in full force and effect, all premiums
due and payable with respect thereto covering all periods up to and including
the date of the Closing had been paid, and no written notice of cancellation or
termination had been received with respect to any such policy. Immediately
prior to the Transfer Time, such policies were sufficient for compliance with
all requirements of law and of all agreements to which either Seller was a
party; were valid, outstanding and enforceable policies; provide insurance
coverage customary in Sellers' industry for the assets and operations of
Sellers; will remain in full force and effect through the respective dates set
forth in Schedule 7.20 without the payment of additional premiums. Schedule
7.20 identifies all risks which Sellers designated as being self-insured.
Neither Seller has been refused any insurance with respect to its assets or
operations, nor has its coverage been limited, by any insurance
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<PAGE> 28
carrier to which it has applied for any such insurance or with which it has
carried insurance during the last three years.
7.21 Certain Transactions. Except as set forth in Schedule 7.21, or
elsewhere set forth herein, there was no transaction or contractual
relationship relating to the Transferred Assets and existing immediately prior
to the Transfer Time, to which either Seller was a party and in which any
partner or officer of Sellers or any affiliate of Sellers had a direct or
indirect material interest.
7.22 Accounting Practices. Each Seller makes and keeps accurate books and
records reflecting its assets and operations in accordance with generally
accepted accounting principals consistently applied ("GAAP") and maintains
internal accounting controls that provide reasonable assurance that (i)
transactions are executed in accordance with proscribed policies and with
management's authorization, (ii) all valid transactions are properly valued and
timely and accurately recorded so as to permit timely preparation of financial
statements in accordance with GAAP, (iii) access to the assets of such Seller
is permitted only in accordance with proscribed policies and management's
authorization and (iv) the reported accountability of the assets of such Seller
is compared with existing assets at reasonable intervals.
7.23 Certain Disclosures. Schedule 7.23 sets forth the following
information with respect to the period immediately prior to the Transfer Time:
(i) a list of all officers and other employees and consultants
of each Seller whose current annual salary or rate of compensation
(including committed or anticipated bonus and incentive
compensation) was more than $50,000 or to whom either Seller had
loaned more than $25,000 reflecting on such list the amount and
nature of all cash and non-cash compensation;
(ii) a list of all officers and other employees and
consultants of either Seller who were receiving or are entitled to
receive any payment
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<PAGE> 29
(other than salaries, expense reimbursements, bonuses, merit and
incentives compensation) indicating on such list the amount and
nature of each payment; and
(iii) a list of all vehicles owned or leased by either Seller
or which was otherwise used in connection with the operation of the
business of either Seller.
7.24 Labor Agreements and Policies. Immediately prior to the Transfer
Time, neither Seller was a party to or bound by any collective bargaining
agreement. Each Seller had complied with all applicable federal and state laws
with respect to hours worked by, working conditions and any payments made to
its employees and the classification of individuals performing services for
each Seller as an employee or independent contractor.
7.25 Schedules. All lists or other statements, information or documents
set forth in or attached to any Schedule delivered or to be delivered pursuant
to this Agreement shall be deemed to be representations and warranties of the
parties making them with the same force and effect as if such lists,
statements, information and documents were set forth herein. Any list,
statement, document or any information set forth in or attached to any Schedule
delivered or required to be delivered pursuant to this Agreement shall be
deemed to constitute disclosure for any other Schedule delivered or to be
delivered pursuant to this Agreement.
7.26 No Untrue Statements. No statement by either Seller contained in
this Agreement contains any untrue statement of a material fact, or omits to
state a material fact necessary in order to make the statements therein
contained not misleading.
7.27 Adequacy of the Transferred Assets. The Transferred Assets are all
of the property, real and personal, tangible and intangible, used by Sellers in
connection with the ownership and operation of the Complex, and are sufficient
in all material respects to operate and maintain such business in the manner it
was conducted by Sellers prior
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to the Transfer Time. Nothing contained herein shall limit Sellers' rights
with respect to the Excluded Assets.
7.28 Tickets. Included as part of the Transferred Assets are all of
Sellers' ticket inventory and ticket stock. Except as contemplated by this
Agreement or reflected on Schedule 7.28 or any other Schedule hereto, Sellers
have not issued any free tickets with respect to any motorsports or other
events scheduled to occur on or after the Closing Date. Sellers have
maintained accurate and complete records of all tickets sold prior to the
Closing Date for motorsports and other events scheduled to occur after the
Closing Date.
7.29 Grandstand Bleachers. There are currently located at the Complex
permanent grandstand bleachers which can provide seating for approximately
35,924 patrons and temporary grandstand bleachers which can provide seating for
approximately 25,000 patrons. In addition, there are grandstand bleachers
stored outside the Complex which can provide seating for 25,000 patrons and
which are available for the exclusive use of the Sellers with respect to events
to be held at the Complex. All the grandstand bleachers identified above (the
"Bleachers") are in a good state of maintenance and repair. All the Bleachers
are owned by the City of Homestead. After the Closing so long as the Company is
the lessee under the Homestead Lease, except as otherwise specified in the City
of Homestead Lease, the Company shall have the exclusive use of the Bleachers
with respect to events held at the Complex without any charge for such use.
7.30 List of Customers. Except for the transaction contemplated by this
Agreement, Sellers have not sold, rented or exchanged all or any portion of
their list of purchasers of tickets for motorsports events held or to be held
at the Complex.
7.31 Company Membership. Immediately prior to the Closing, the Sellers
shall be the sole members of the Company and, except as contemplated by this
Agreement, the limited liability company interests of each of the Sellers shall
be free and clear of any
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and all liens, claims, options, charges, pledges, security interests, voting
agreements, encumbrances or other restrictions or interests of any kind or
nature whatsoever (collectively "Claims"). Except as contemplated by this
Agreement, at the Closing there will be no outstanding options or other rights,
agreements or commitments to admit any new members to the Company or to
transfer or assign any limited liability company interests in the Company. At
the Closing the Sellers shall assign and convey to the Purchasers valid and
marketable title to the Membership Interests free and clear of any and all
Claims. At the Closing the Purchasers shall be admitted as members of the
Company.
7.32 Minimum Equity Balances. The minimum equity balance to be
transferred by Sellers to the Company shall be $8,870,370. The maximum
liabilities to be transferred by Sellers to the Company shall be (i)
$18,500,000 for the Chase Manhatten Bank loan specified in paragraph 6.5(d),
(ii) $2,846,068 for the H. Group Note specified in paragraph 6.5(e), (iii)
$8,200,000 for the Turn Project specified in paragraph 6.5(g) and (iv) other
current liabilities in an amount equal to the sum of the amount of current
assets being transferred by Sellers to the Company plus $2,100,000.
7.33 No Additional Warranties. The Sellers are not making any
representation or warranty, express or implied, of any nature whatsoever, with
respect to the Sellers or their business, except for representations or
waranties expressly set forth in this Agreement.
7.34 Conduct of Business After the Transfer Time. From the Transfer Time
until the Closing Date, except as contemplated by this Agreement or with the
prior written consent of ISC and PMI, Sellers will not permit the Company to :
(i) take any action to amend the Company's Operating Agreement from the form
attached as Exhibit B hereto; (ii) admit any new members of the Company; (iii)
incur any contractual obligation or liability (absolute or contingent) except
liabilities incurred, and obligations arising under contracts entered into in
the ordinary course of business; (iv)
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<PAGE> 32
declare or make any payment or distribution to any members of the Company in
their capacity as members of the Company; (v) mortgage, pledge, or subject to
any lien, charge or any other encumbrance (except for existing floating liens
or mechanic's or similar liens) any of its assets, tangible or intangible; (vi)
sell, assign, or transfer any of its tangible or intangible assets, except in
the ordinary course of business; (vii) cancel any debts or claims, except in
the ordinary course of business; (viii) merge or consolidate with or into any
other entity; (ix) make, accrue or become liable for any bonus, profit sharing
or incentive payment except for payments or accruals under existing plans, or
increase the rate of compensation payable or to become payable by them to any
of its officers, employees or members; (x) enter into any lease, contract,
agreement or understanding other than in the ordinary course of business; (xi)
enter into any contract, employment relationship or arrangement with any agent
or consultant other than in the ordinary course of business; (xii) commence to
do business outside the State of Florida; (xiii) waive any rights of material
value; (xiv) modify, amend, alter or terminate any of its executory contracts
of a material value or which are material in amount; (xv) take any action or
fail to take any action constituting a breach or default under any material
contract, indenture or agreement by which it is bound; (xvi) fail to use its
reasonable efforts to preserve the possession and control of its assets and
business, to keep in faithful service its present officers and key employees,
to preserve the goodwill of its licensers, customers, agents, consultants and
others having business relations with them, and to keep and preserve its
business existing on the date hereof; (xvii) fail to operate its business and
maintain its books, accounts and records in the customary manner and in the
ordinary or regular course of business and maintain in good repair its business
premises, fixtures, furniture and equipment; (xviii) make any further additions
to its properties or further purchases of equipment, except in the ordinary
course of business or except to maintain such property or equipment; (xix) pay
or discharge any claim or lien, except in the ordinary course of business; (xx)
write-off
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any accounts receivable as uncollectible; (xxi) fail to preserve the
Proprietary Rights; or (xxii) change any of its current accounting practices.
8. REPRESENTATIONS OF ISC AND PMI
ISC and PMI severally, but not jointly, represent and warrant to Sellers:
8.1 Organization and Authority. Each is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, each has all requisite corporate power and authority to own its
properties, to carry on its businesses as now being conducted, to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
8.2 Authorization of Agreement. The execution and delivery of this
Agreement by ISC and PMI and the consummation by each of them of all
obligations contemplated hereby have been duly authorized by all requisite
corporate action. This Agreement and any other agreements and written
obligations entered into and undertaken in connection with the transactions
contemplated hereby and thereby constitute the valid and legally binding
obligations of each of them, enforceable against it in accordance with their
respective terms.
8.3 Litigation. Except as set forth on Schedule 8.3, there are no
actions, suits, proceedings or investigations, either at law or in equity, or
before any commission or other administrative authority in any federal, state,
municipal or foreign jurisdiction, of any kind now pending or, to the best of
knowledge of either ISC or PMI, threatened or proposed in any manner, or, to
the knowledge of either ISC or PMI, any circumstances which reasonably form the
basis of any such action, suit, proceeding or investigation, involving either
of them or any of their properties or assets that (i) questions the validity of
this Agreement, or (ii) seeks to delay, prohibit or restrict in any manner any
action taken or contemplated to be taken by either ISC or PMI under this
Agreement.
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8.4 Governmental Approvals. There are no governmental approvals or
authorizations required by either ISC or PMI with respect to the performance of
their obligations under this Agreement.
8.5 No Violation. The execution, delivery and performance of this
Agreement and the transactions contemplated hereby by each of them will not,
with or without the giving of notice and/or the passage of time, violate any
provisions of law applicable to either of them or conflict with or result in
the breach or termination of any provision of, constitute a default under, or
result in the creation of any lien, charge or encumbrance upon any of the
properties or assets pursuant to any corporate charter, by-law, indenture,
mortgage, deed of trust or other agreement or instrument to which either ISC or
PMI is a party or by which it is or may be bound.
8.6 Brokers. Neither ISC nor PMI has engaged any person or entity to act
as a broker or finder with respect to the transaction contemplated by this
Agreement.
8.7 Investment Representations. ISC or the ISC Affiliate will acquire the
ISC Interest for its own account for investment and not with a view to the
resale or distribution thereof. The entity acquiring the ISC Interest will not
transfer or otherwise dispose of the ISC Interest, or any interest therein, in
such manner as to violate any provisions of the 1933 Act, or of any applicable
state securities laws regulating the disposition thereof. PMI or the PMI
Affiliate will acquire the PMI Interest for its own account for investment and
not with a view to the resale or distribution thereof. The entity acquiring
the PMI Interest will not transfer or otherwise dispose of the PMI Interest, or
any interest therein, in such manner as to violate any provisions of the 1933
Act, or of any applicable state securities laws regulating the disposition
thereof.
9. ADDITIONAL AGREEMENTS
9.1 Further Assurances. From and after the Closing Date, Sellers shall
take all such steps as may be necessary to put the Company in actual possession
and operating
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control of the Transferred Assets, and Sellers agree that at any time or from
time to time after the Closing Date, upon the request of the Company, Sellers
will execute, acknowledge and deliver such other instruments of conveyance and
transfer and take such other action as the Company may reasonably require to
vest more effectively in the Company good and marketable title to any of the
Transferred Assets and to reasonably assist and cooperate in collection of any
of the the Accounts Receivable. Without limiting the generality of the
foregoing, at the option of the Company, Sellers shall participate in taking
such action as may be necessary to substitute the Company for Sellers as
plaintiff or claimant of record in any action, suit, proceeding or claim by
Sellers with respect to or based upon or arising out of the business of Sellers
to the extent that such substitution will not materially adversely affect any
such action, suit, proceeding or claim, in which event Sellers shall remain as
plaintiff or claimant with counsel approved by the Company on behalf of and for
the benefit of the Company. In the event that Sellers remain as plaintiff or
claimant, Sellers shall remit to the Company all amounts paid to Sellers on
account of any judgment, order, settlement or payment resulting from any such
action, suit, proceeding or claim and the Company shall bear the costs and
expenses incurred by Sellers after the Closing in connection therewith. In no
event shall the Sellers be obligated to expend more than $50,000 after Closing
with respect to out-of-pocket expenses incurred in fulfilling obligations under
the terms of this paragraph 9.1. At any time or from time to time after the
Closing, the Company shall, at the request of Sellers, execute and deliver any
further instruments or documents and take all such further action as Sellers
reasonably request in order to evidence the consummation of the transactions
contemplated hereby.
9.2 Accounts Receivable Collection. The Company shall exercise its
reasonable commercial efforts to collect the Accounts Receivable but shall not
be obligated to initiate litigation as part of such collection efforts. All
payments received by the Company after the Transfer Time from third parties who
are the obligors on the
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Accounts Receivable shall be applied to the oldest remaining Accounts
Receivable for such third party unless otherwise indicated on any remittance
advice from such third party which accompanies such payment. Any Account
Receivable which remains unpaid after 90 days from the Closing (or after 120
days from the Closing with respect to the Slow Accounts), and with respect to
which the Purchasers or the Company obtain payment from Sellers under paragraph
13.1, shall be reassigned to Sellers for collection by Sellers for their own
account.
9.3 Retained Information. From and after the Closing Date, the Sellers
shall not retain any records or other documents related to the business or
operations of the Complex prior to the Effective Time (the "Transferred
Business Records") other than records or other documents which constitute part
of the Excluded Assets. For a minimum of five (5) years after the Closing, the
Company shall maintain and make available to Sellers the Transferred Business
Records for inspection and copying to the extent Sellers require access to such
records in response to tax audits or other reasonable business necessity
provided that such records shall not be used in a manner which is detrimental
to the interests of the Company. For a minimum of five (5) years after the
Closing, the Sellers shall maintain and make available to the Company the
Retained Business Records for inspection and copying to the extent the Company
requires access to such records for reasonable business necessity provided that
such records shall not be used in a manner which is detrimental to the
interests of the Sellers. Nothing contained in this paragraph 9.3 shall
restrict either Sellers or the Company from obtaining access to the Transferred
Business Records or the Retained Business Records incident to discovery in
litigation to which the Company or Sellers are parties and utilizing such
records with respect to any such litigation.
9.4 Publicity. No party to this Agreement shall make or issue, or cause
to be made or issued, any announcement or written statement concerning this
Agreement or the transactions contemplated hereby for dissemination to the
general public without
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the prior consent of the other. This provision shall not apply, however, to
any announcement or written statement required to be made by law or the
regulations of any federal, state or foreign governmental agency or any stock
exchange, except that the party required to make such announcement shall,
whenever practicable, consult with the other party concerning the timing and
content of such announcement before such announcement is made.
9.5 Special Provisions Addressing Deferred Income and Prepaid Event
Expenses.
9.5.1 The parties hereto acknowledge that inherent in the operation
of Sellers' business prior to the Effective Time was (i) the action of selling
admission tickets, sponsorships, signage, suite rentals and other revenue items
which are either specific to an event or specific to a period of time, and
typically, many of these sales are made and payment is received in advance of
the event or time period, and (ii) the necessity from time to time to prepay
certain expenses which are directly related to a future event, including, but
not necessarily limited to, advertising or promotional expenses.
9.5.2 The parties hereto also acknowledge that GAAP requires (i)
sales made in advance of a specific event or time period to be recorded on the
balance sheet as a liability, hereinafter referred to as "Deferred Income", and
(ii) material expenses paid in advance of a specific event be recorded in the
balance sheet as an asset, hereinafter referred to as "Prepaid Event Expense".
9.5.3 Sellers warrant that (i) sales made or contracts entered into
in advance of the Effective Time that relate to obligations that the Company
must perform subsequent to the Effective Time, have been recorded on the
Sellers' combined balance sheet as Deferred Income. Furthermore, Schedule 9.5
accurately lists the components of Deferred Income as of the Effective Time
and, (ii) all material expenses paid by Sellers prior to the Effective Time
that directly relate to events which are scheduled to occur
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subsequent to the Effective Time have been accounted for on the Sellers'
balance sheet as Prepaid Event Expenses. Furthermore, Sellers warrant that
Schedule 9.5 is a complete and accurate list of Prepaid Event Expenses as of
the Effective Time, and that these Prepaid Event Expenses represent direct
costs relating to scheduled events that will occur subsequent to the Effective
Time. Furthermore, Sellers warrant that the Prepaid Event Expenses listed on
Schedule 9.5 do not include any allocation of indirect expenses, including, but
not necessarily limited to, selling, general and administrative expenses.
9.6 Definition of Material. Except to the extent that different criteria
are specified with respect to a specific paragraph of this Agreement, an event,
occurrence or circumstance will be deemed to be "material" with respect to a
party if such event, occurrence or circumstance causes or is reasonably likely
to cause damage, loss or expense to such party in excess of $5,000.00.
9.7 Limitation on Transfer of Membership Interests.
9.7.1 Sanchez Membership Interest. Sanchez and the Sellers agree
that, except as is contemplated by this Agreement, they will not transfer or
permit to be transferred the Sanchez Membership Interest, as that term is
defined below, as long as the call option for the Sanchez Membership Interest
specified in paragraph 25.4 is outstanding.
9.7.1 Huizenga Membership Interest. Huizenga and the Sellers agree
that, except as is contemplated by this Agreement, they will not transfer or
permit to be transferred the Huizenga Membership Interest, as that term is
defined below, as long as the call option for the Huizenga Membership Interest
specified in paragraph 25.3 is outstanding.
9.8 Additional Capital. Additional capital requirements of the Company
arising after the Closing Date shall be determined by a Majority in Interest of
the Members, as that term is defined in the Company's Operating Agreement,
applying
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commercially reasonable business judgment and based on the reasonable business
needs of the Company. In the event that the Company is not able to satisfy its
additional capital requirements by loans from financial institutions on
commercially reasonable terms, the Members of the Company shall be required to
make additional capital contributions in proportion to their Percentage
Interests in the Company as that term is defined in the Company's Operating
Agreement. If a capital call is made on the Members of the Company prior to
the expiration of the put option for the Sanchez Membership Interest specified
in paragraph 25.2 below, ISC and PMI, upon request from Sanchez, will each
advance to the Company, on behalf of the Member owning the Sanchez Membership
Interest, one half of the cash call due from such Member until the aggregate
of the advances made by ISC and PMI (the "Advances") on behalf of such Member
total $1,000,000. The Advances will earn interest from the date of each
Advance at the floating market rate charged to the party making the Advance by
its principal lending bank. The Advances plus all accrued interest shall be
secured by the Sanchez Membership Interest. Sanchez hereby consents that any
proceeds from the sale of the Sanchez Membership Interest pursuant to the put
option set forth in paragraph 25.2 or the call option set forth in paragraph
25.4 shall be applied first to pay in full the outstanding balance of the
Advances plus all accrued interest.
9.9 Huizenga Special Use Rights. For a period of ten years from the
Closing or until the death of Huizenga, whichever shall occur first, Huizenga
or an entity controlled by him will have the right to use the Complex four days
per calendar year to entertain his employees and guests with a driving school.
Huizenga's rights under this paragraph 9.9 shall be subject to the following
limitations:
(i) During the period between January 2 and January 31 of each
calendar year, Huizenga shall request dates for the use of the Complex during
such calendar year and the Company shall approve such dates if they do not
interfere with other scheduled uses for the Complex. The Company shall be
permitted to reschedule
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any date selected by Huizenga upon written notice given to Huizenga not less
than 30 days prior to the scheduled date, for good cause as determined in the
Company's commercially reasonable judgment. An example of good cause would be
an alternative use for the Complex which would generate significant revenue for
the Company. The Company shall work with Huizenga to arrive at rescheduled
dates which are reasonably satisfactory to Huizenga and the Company. If the
Company desires to reschedule any selected date upon less than thirty days
notice, such rescheduling shall be subject to Huizenga's consent, which consent
shall not be unreasonably withheld or delayed provided such rescheduling is
necessary to permit the Company to schedule an alternative use for the Complex
which would generate significant revenue and if another proximate date is
available and reasonably satisfactory to Huizenga. No rescheduling of Huizenga
use dates shall be requested by Company within fifteen days of the scheduled
date.
(ii) Huizenga shall pay all direct costs arising out of his use
of the Complex.
(iii) Huizenga shall comply with all reasonable requirements
adopted by the Company from time to time relating to the use of the Complex
including requirements related to facility operations and required insurance
coverage.
(iv) The Company will have the right to approve on an annual
basis the driving school to be selected by Huizenga, such approval not to be
unreasonably withheld or delayed.
10. CONDITIONS TO OBLIGATIONS OF PURCHASERS.
The obligations of Purchasers under this Agreement are subject, at the
Closing Date, to the fulfillment in all respects of the following conditions
precedent, each of which may be waived in writing at the sole discretion of
Purchasers:
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10.1 Continued Truth of Representations and Warranties. Each of the
representations and warranties of Sellers in this Agreement shall be true in
all material respects on and as of the Closing Date, and Sellers shall have
performed and complied in all material respects with all of the terms,
conditions, obligations, agreements and restrictions required by this Agreement
to be performed or complied with by Sellers prior to or on the Closing Date.
10.2 Certificate. Sellers shall have delivered to Purchasers a
certificate addressed to Purchasers and executed by general partners of Sellers
dated the Closing Date in the form attached hereto as Exhibit F.
10.3 Consents of Third Parties. Sellers shall have received and delivered
in writing to the Company or the Purchasers all requisite waivers, consents and
approvals of the City of Homestead, Sun Trust with respect to the asignment to
the Company of the Homestead Lease, of all third parties set forth on Schedule
10.3 hereto, and any other third parties whose waiver, consent or approval is
required to be obtained by Sellers to consummate the transactions contemplated
hereby but which were not listed on Schedule 3 hereto, in form satisfactory to
Purchasers.
10.4 Absence of Challenge. At or prior to the Closing Date no material
action or proceeding by or before any court or other governmental body shall
have been instituted by any governmental body or person whatsoever other than
Purchasers against any of the parties hereto, or any partner, officer, employee
or other representative of Sellers with respect to this Agreement or any
transaction provided for herein or connected herewith, whether preceding the
execution and delivery of this Agreement or arising subsequently.
10.5 Opinion of Sellers' Counsel. Purchasers shall have received the
opinion dated the Closing Date of Akerman, Senterfitt & Eidson, P.A., counsel
for Sellers, substantially in the form of Exhibit G attached hereto and
otherwise in form and substance satisfactory to Purchasers.
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10.6 Litigation. No action or proceeding shall have been instituted or
threatened by any public authority prior to the Closing Date before a court or
governmental body or agency of any kind for the stated purpose or with the
probable effect of enjoining or preventing the consummation of this Agreement
and the transactions contemplated herein or to recover damages by reason
thereof. No action or proceeding shall have been instituted by any private
person prior to the Closing Date before a court or governmental body or agency
of any kind with the probable effect of enjoining or preventing the
consummation of this Agreement and the transactions contemplated hereby.
10.7 Transfer of Liquor License. The Company shall have been successful
in obtaining in the name of the Company's designated concession operator a
liquor license of the same class as is currently held by Sellers or their third
party concession operator with respect to the sale of alcoholic beverages at
the Complex.
10.8 Sanctions and Sponsorship Agreements. All material existing
sanction agreements and sponsorship agreements with respect to motorsports
events scheduled to occur at the Complex after the Closing Date shall have been
duly assigned to the Company.
10.9 Opinion of Homestead's Counsel. Sellers shall have delivered to
Purchasers an opinion of legal counsel to the City of Homestead in a form
reasonably satisfactory to Purchasers, stating that the amendment to the
Homestead Lease in the form attached as Exhibit E and the Homestead Lease have
been duly authorized by all requisite legal action by the City of Homestead and
are valid and binding legal contracts of the City of Homestead which after the
Closing will be enforceable by the Company in accordance with their terms.
10.10 Financing. The financing or refinancing specified in paragraphs
6.5(b) and 6.5(d) shall have been obtained.
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10.11 Other Actions to be Taken. All actions listed in paragraph 6.5
hereof to be performed by Sellers, Sanchez or Huizenga shall have been taken
and any necessary governmental approvals to the transactions to occur at the
Closing shall have been obtained.
11. CONDITIONS TO OBLIGATIONS OF SELLERS
The obligations of Sellers under this Agreement are subject, at the
Closing Date, to the fulfillment in all material respects of the following
conditions precedent, each of which may be waived in writing at the discretion
of Sellers:
11.1 Continued Truth of Representations and Warranties. The
representations and warranties made by Purchasers in this Agreement shall be
true in all material respects on and as of the Closing Date, and Purchasers
shall have performed and complied with all terms, conditions, obligations,
agreements and restrictions required by this Agreement to be performed or
complied with by it prior to or on the Closing Date.
11.2 Certificate. Purchasers shall have delivered to Sellers a
certificate addressed to Sellers and executed by an authorized officer of
Purchasers dated the Closing Date to the effect set forth in Exhibit H.
11.3 Litigation. No action or proceeding shall have been instituted or
threatened by any public authority prior to the Closing Date before a court or
governmental body or agency of any kind for the stated purpose or with the
probable effect of enjoining or preventing the consummation of this Agreement
and the transactions contemplated herein or to recover damages by reason
thereof. No action or proceeding shall have been instituted by any private
person prior to the Closing Date before a court or governmental body or agency
of any kind with the probable effect of enjoining or preventing the
consummation of this Agreement and the transactions contemplated hereby.
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11.4 Opinion Of Purchaser's Counsel. Sellers shall have received the
opinion dated the Closing Date of Black, Crotty, Sims, Hubka, Burnett, Birch
and Samuels, L.L.P., counsel for ISC and Robert H. Kurnick, Jr. Esq., counsel
for PMI, in the form attached hereto as Exhibit I and otherwise in form and
substance satisfactory to Seller.
11.5 Absence of Challenge. At or prior to the Closing Date no material
action or proceeding by or before any court or other governmental body shall
have been instituted by any governmental body or person whatsoever, other than
Sellers, against any of the parties hereto, or any partner, officer, employee
or other representative of Purchasers with respect to this Agreement or any
transaction provided for herein or connected herewith, whether preceding the
execution and delivery of this Agreement or arising subsequently.
11.6 Governmental Approvals. Any necessary governmental approvals to the
transactions to occur at the Closing shall have been obtained.
12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
12.1 Survival of Sellers' Warranties. Any investigation or examination by
Purchasers of the business, properties or affairs of Sellers shall not affect
the representations and warranties of Sellers herein contained, and the
respective representations and warranties of the parties herein contained shall
survive the Closing. All such representations and warranties shall expire and
be terminated and extinguished on the second anniversary of the Closing Date,
except as to particular claims submitted in writing prior to said expiration
date, and also except as to the representations and warranties of Sellers
contained in paragraph 7.19 which shall continue in effect until the applicable
Statute of Limitations has expired.
12.2 Survival of Purchasers' Warranties. Any investigation or examination
by Sellers of the business, properties or affairs of Purchasers shall not
affect the
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representations and warranties of Purchasers herein contained, and the
respective representations and warranties of the parties herein contained
shall survive the Closing. All such representations and warranties shall
expire and be terminated and extinguished on the second anniversary of the
Closing Date.
13. INDEMNIFICATION
13.1 Indemnification by Sellers. Each Seller, Sanchez and Huizenga,
severally but not jointly, agrees to indemnify Purchasers and the Company and
hold them harmless from any loss, damage or expense (including reasonable
attorneys' fees) which Purchasers, the Company or any of their officers,
directors, parents or subsidiaries or other affiliates, actually incur (to be
offset by applicable insurance recovery obtained), suffer or become liable for
as a result of or in connection with (a) the inaccuracy or breach of any
agreement, representation or warranty of Sellers, Sanchez or Huizenga contained
in this Agreement, any Exhibit or Schedule to be delivered pursuant hereto
occurring or developing during the period of survival of such agreement,
representation or warranty including any claims by any third parties alleging
facts or circumstances which, if true, would constitute such inaccuracy or
breach; (b) failure to pay any sales or use tax liability of the Sellers for
periods through the Transfer Time; (c) any assertion against the Company or
Purchasers of any claim or liability of Sellers not expressly assumed hereunder
by the Company or Purchasers; (d) unless expressly assumed by the Company or
the Purchasers hereunder, the assertion against the Company or Purchasers by
any person, firm, governmental agency or corporation of any obligation or
liability of Sellers accruing on or prior to, or existing at, the Transfer Time
and thereafter accrued, including without limitation, tax claims or
liabilities; (e) failure of Sellers to obtain necessary consents to assignment
of any of the Transferred Assets to the extent required by this Agreement; or
(f) any and all actions, suits, proceedings, claims, demands, assessments,
judgments, costs and expenses incident to
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any of the foregoing or in enforcing this indemnity. Purchasers and the
Company shall give Sellers, Sanchez and Huizenga prompt written notice of any
claim, suit or demand which Purchasers or the Company believe will give rise
to indemnification by Sellers, Sanchez or Huizenga under this paragraph;
provided, however, that the failure to give such notice shall not affect the
liability of Sellers, Sanchez or Huizenga hereunder unless the failure to give
such notice adversely and materially affects the ability of Sellers, Sanchez or
Huizenga to defend themselves against a claim or to cure the breach or
inaccuracy giving rise to the claim for indemnification on account thereof.
Except as hereinafter provided, Sellers, Sanchez and Huizenga shall have the
right to defend and to direct the defense against any such claim, suit or
demand, in their names or in the name of Purchasers or the Company at Sellers',
Sanchez's and Huizenga's option and with counsel of Sellers', Sanchez's and
Huizenga's own choosing, which counsel shall be reasonably satisfactory to
Purchasers. Purchasers and the Company shall, at Sellers', Sanchez's and
Huizenga's expense, cooperate in the defense of any such claim, suit or demand.
If Sellers, Sanchez and Huizenga within reasonable time after notice of a
claim, fail to defend Purchasers or the Company or if, in the good faith
judgment of Purchasers, the facts giving rise to indemnification hereunder
shall involve a possible claim by Purchasers or any of their affiliates or the
Company against a third party, or the facts concern a claim constituting or
challenging any material rights or assets of Sellers acquired by the Company
pursuant to this Agreement or seeking an injunction or other equitable relief
against the Company, the Purchasers or any of their affiliates, Purchasers and
the Company shall be entitled to have separate counsel undertake the defense,
compromise or settlement of such claim at the expense of and for the account
and risk of Sellers, Sanchez and Huizenga, subject to the right of Sellers,
Sanchez and Huizenga to assume the defense of such claim at any time prior to
the settlement, compromise or final determination thereof if the only issues
remaining therein involve liability for, or the amount of, money damages to be
assessed against Purchasers or the
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Company, provided Sellers, Sanchez and Huizenga will not, without Purchaser's
written consent (not to be unreasonably withheld) settle or compromise any
claim or consent to any entry of judgment which does not include as an
unconditional term thereof the giving by the claimant or the plaintiff to
Purchasers and the Company a release from all liability in respect of such
claim. No right or remedy conferred in this paragraph is intended to be
exclusive of any other right or remedy available, now or hereafter at law or in
equity or otherwise, to the parties hereto. Any payments due to Purchasers or
the Company under the terms of this paragraph 13.1 shall be made first from the
escrow account specified in paragraph 6.3 above until the balance in the escrow
account has been exhausted. Except as specified below, any balance in the
escrow account (including any interest earned thereon) shall be distributed to
Sellers on the first anniversary of the Closing. In the event that prior to
the first anniversary of the Closing, Purchasers have given notice to Sellers
of an indemnification claim which remains outstanding on the first anniversary
of the Closing, then until such claim is finally resolved, there shall continue
to be held in escrow an amount equal to the amount of the unresolved claim, and
any excess escrow balance shall be distributed to the Sellers on the first
anniversary of the Closing.
13.2 Indemnification by Purchasers. Each Purchaser, severally and not
jointly, agrees to indemnify Sellers and hold Sellers harmless from any loss,
damage or expense (including reasonable attorneys' fees) which Sellers actually
incur (to the extent not covered by insurance recoveries obtained), suffer or
become liable for as a result of or in connection with the inaccuracy or breach
of any agreement, representation or warranty of such Purchaser contained in
this Agreement occurring or developing during the period of survival of such
agreement, representation or warranty including any claims by any third party
alleging facts and circumstances which, if true, would constitute such
inaccuracy or breach. The Company and each Purchaser, severally and not
jointly, agree to indemnify Sellers and hold Sellers harmless from any loss,
damage or expense
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(including reasonable attorneys' fees) which Sellers actually incur (to the
extent not covered by insurance recoveries obtained), suffer or become liable
for as a result of or in connection with (a) any assertion against Sellers of
any claim or liability of the Company accruing on or after the Closing Date or
arising out of the operation of the Complex after the Closing Date or arising
out of the Company's failure to satisfy the Assumed Obligations; or (b) the
assertion against Sellers by any person, firm, governmental agency or
corporation of any obligation or liability of the Company occurring after the
Closing Date and thereafter occurred, including without limitation, tax claims
or liabilities. Sellers shall give Purchasers and the Company prompt written
notice of any claim, suit or demand which they believe will give rise to
indemnification under this paragraph; provided, however, that the failure to
give such notice shall not affect the liability of the indemnifying party
hereunder unless the failure to give such notice adversely and materially
affects the ability of the indemnifying party to defend itself against a claim
or to cure the breach or inaccuracy giving rise to the claim for
indemnification on account thereof. Except as hereinafter provided, the
indemnifying party shall have the right to defend and to direct the defense
against any such claim, suit or demand, in its name or in the names of Sellers
at the indemnifying party's expense and with counsel of the indemnifying
party's own choosing, which counsel shall be reasonably satisfactory to
Sellers. Sellers shall, at the indemnifying party's expense, cooperate in the
defense of any such claim, suit or demand. If the indemnifying party, within
reasonable time after notice of a claim, fails to defend Sellers or if, in the
good faith judgment of Sellers, the facts giving rise to indemnification
hereunder shall involve a possible claim by Sellers or any of their affiliates
against a third party seeking an injunction or other equitable relief against
Sellers or any of their affiliates, Sellers shall be entitled to have separate
counsel undertake the defense, compromise or settlement of such claim at the
expense of and for the account and risk of the indemnifying party subject to
the right of the indemnifying party to assume the
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defense of such claim at any time prior to the settlement, compromise or final
determination thereof if the only issues remaining therein involve liability
for, or the amount of, money damages to be assessed against Sellers, provided
the indemnifying party will not, without Sellers' written consent (not to be
unreasonably withheld or delayed), settle or compromise any claim or consent to
any entry of judgment which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to Sellers a release from all
liability in respect of such claim. No right or remedy conferred in this
paragraph is intended to be exclusive of any other right or remedy available,
now or hereafter at law or in equity or otherwise, to the parties hereto.
13.3 Maximum Liability. The aggregate liability of the Sellers under the
terms of paragraph 13.1 shall not exceed the amount of the Purchase Price
(which amount shall be reduced dollar for dollar for any amounts paid by
Sanchez and Huizenga under paragraph 13.1), and the personal liability of
Sanchez and Huizenga under the terms of paragraph 13.1 shall be limited to
$11,800,000 for each individual; provided, however, that the limitations set
forth in this paragraph 13.3 shall not apply to losses resulting from
intentional fraud or misrepresentation. The aggregate liability of the
Company under the terms of Section 13.2 shall not exceed the amount of the
Purchase Price, and the aggregate liability of each of the Purchasers under
the terms of paragraph 13.2 shall be limited to $11,800,000; provided, however,
that such limitation set forth in this paragraph 13.3 shall not apply to
losses resulting from intentional fraud or misrepresentation.
13.4 Initial Threshold. Neither the Sellers, Sanchez and Huizenga under
the terms of paragraph 13.1 nor the Purchasers under the terms of paragraph
13.2 shall be obligated to indemnify any other party except to the extent that
the cumulative amount of all indemnifiable losses exceeds Twenty-Five Thousand
Dollars ($25,000.00) (the "Threshold"), which excess amount shall be
recoverable in accordance with the terms of
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paragraph 13.1 and paragraph 13.2 above. The Sellers' allowance for Slow
Accounts specified in paragraph 7.17 shall be in addition to the threshold
amount.
14. EFFECTIVENESS OF THIS AGREEMENT
This Agreement shall become effective upon the execution and delivery of
this Agreement (or counterpart thereof) by all parties hereto and shall not be
binding upon any party executing this Agreement (or counterpart thereof) until
executed by all parties hereto.
15. BROKERS
15.1 For Sellers. Sellers agree, jointly and severally, to indemnify and
hold harmless Purchaser against any claims or liabilities asserted against it
by any person acting or claiming to act as a broker or finder on behalf of
Sellers.
15.2 For Purchasers. Purchasers agree to indemnify and hold harmless
Sellers against any claims or liabilities asserted against any of them by any
person acting or claiming to act as a broker or finder on behalf of Purchasers.
16. EXPENSES AND ATTORNEY'S FEES
Except as may otherwise be expressly provided herein, Purchasers on the
one hand and Sellers on the other hand shall pay their own expenses in
connection with this Agreement and the transactions contemplated hereby,
including attorneys' and accountants' fees. In the event of any dispute
arising under this Agreement, the prevailing party shall be permitted to
recover its attorney's fees.
17. SALES, USE, TRANSFER AND OTHER TAXES
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Sellers and Purchasers shall each pay one half of all sales/use taxes,
transfer taxes of any nature, notarial fees, documentary tax stamps, other
taxes or surtaxes and recording fees incurred in connection with the
consummation or the transactions contemplated hereby specifically including the
transfer of the Homestead Lease to the Company. Nothing contained herein shall
limit Purchasers' obligations under paragraph 3.3 hereof.
18. COVENANT NOT TO COMPETE
Huizenga hereby covenants and agrees that for a period of five (5) years
from and after the Closing Date, he will not, except as permitted below or with
the express written consent of Purchasers, directly or indirectly engage,
participate or invest in or assist, as owner, part-owner, shareholder, partner,
director, trustee, independent contractor, agent or consultant, or in any other
capacity, in any business organization engaged in the business (a "Competitive
Business") of staging or promoting motorsports events or operating a motorsport
facility in any State where ISC or PMI or any of their affiliate operates a
motorsports facility or shall commence to operate a motorsports facility after
the Closing Date; provided, however, that the foregoing restrictions shall not
restrict Huizenga's participation in any competitive enterprise the shares of
which are publically traded through NASDAQ or on a national securities
exchange.
Huizenga covenants and agrees that for a period of five (5) years from the
Closing Date, he will not, without the express written consent of Purchasers,
hire, or attempt to hire for employment, in any business venture, any person
who was an employee of the Company on the date of termination of such
employee's employment by the Company, or within the two (2) year period
immediately preceeding such date, or attempt to influence any such person to
terminate such employment; or in any other
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manner interfere with, disrupt or attempt to disrupt the relationship,
contractual or otherwise, between the Company and any of its customers,
suppliers or employees.
In making this undertaking Huizenga understands and agrees that it is of
the essence of this Agreement and that his willingness to make and carry out
this covenant not to compete with the Company for the aforementioned period
stated therein has induced Purchaser to enter into this Agreement. Without
prejudice to the right of Purchaser or the Company to seek an award for damages
for any breach of this covenant by Huizenga, this covenant shall be
specifically enforceable by way of injunctive relief without the requirement of
posting a bond, which requirement is specifically waived by Huizenga. It is
the express opinion and intention of the parties hereto that they shall be
bound by the provisions of said covenant not to compete and the parties hereto
each agree that said covenant is reasonable and appropriate in light of the
transaction set forth herein, the consideration being paid therefor and the
purpose of this Agreement.
19. NOTICES
Any notices or other communications required or permitted hereunder shall
be sufficiently given if delivered personally or sent by registered or
certified mail, return receipt requested, postage prepaid, or transmitted by
telecopy, addressed as follows or to such other address of which the parties
may have given notice in accordance with this paragraph 19:
a. In the case of ISC:
International Speedway Corporation
1801 West Speedway Boulevard
Daytona Beach, Florida 32114-1243
Attn: W. Garrett Crotty, Esq., Corporate Counsel
Telecopy: (904) 947-6884
with a copy to:
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Miller, Cassidy, Larroca, & Lewin, L.L.P.
2555 M. Street, N.W.
Washington, D.C. 20037-1302
Attn: John Cassidy, Esq.
Telecopy: (202) 293-6610
and:
Black, Crotty, Sims, Hubka, Burnett, Birch and Samuels, L.L.P.
Sun Trust Bank
501 North Grandview Avenue, Third Floor
Daytona Beach, FL 32118
Attn: Random R. Burnett, Esq.
Telecopy: (904) 253-8198
b. In the case of PMI:
Penske Motorsports, Inc.
c/o Penske Corporation
13400 Outer Drive, West
Detroit, MI 48239-4001
Attn: Robert H. Kurnick, Jr., Esq.
Assistant General Counsel
Telecopy: (810) 614-1125
c. In the case of the Company:
Homestead-Miami Speedway LLC
1801 International Speedway Boulevard
Daytona Beach, Florida 32114
d. In the case of Sellers:
Miami Motor Sports Joint Venture
Homestead Motor Sports Joint Venture
One Speedway Boulevard
Homestead, FL 33015
Attn: Rafael A. Sanchez
Telecopy: (305) 230-5221
with a copy to:
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Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, FL 33131
Attn: Rebecca Orand, Esq.
Telecopy: (305) 579-0717
and
Akerman, Senterfitt & Eidson, P.A.
Suntrust International Center
28th Floor, One S.E. 3rd Avenue
Miami, FL 33131-1704
Attn: Stephen Roddenberry, Esq.
Telecopy: (305) 374-5095
e. In the case of Rafael A. Sanchez:
Mr. Rafael Sanchez
One Speedway Boulevard
Homestead, FL 33015
Telecopy: (305) 230-5221
with a copy to:
Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel
1221 Brickell Avenue
Miami, FL 33131
Attn: Rebecca Orand, Esq.
Telecopy: (305) 579-0717
f. The case of Wayne Huizenga
Mr. Wayne Huizenga
200 South Andrews Avenue, Sixth Floor
Ft. Lauderdale, FL 33301
Telecopy: (954) 627-5030
with a copy to:
Akerman, Senterfitt & Eidson
Suntrust International Center
28th Floor, One S.E. 3rd Avenue
Miami, FL 33131-1704
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Attn: Stephen Roddenberry, Esq.
Telecopy: (305) 374-5095
20. SUCCESSORS
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that
Purchasers, on the one hand, and Sellers, on the other hand, shall not assign
their respective obligations hereunder, without the prior written consent of
the other parties provided, however, that each of the Purchasers shall be
permitted to assign its rights and obligations hereunder to a subsidiary or
other entity which is wholly owned by such Purchaser. In the event a Purchaser
makes an assignment to one of its affiliates, such Purchaser shall guaranty to
Sellers the obligations of such affiliate hereunder.
21. PARAGRAPH HEADINGS
The paragraph headings are for the convenience of the parties and in no
way alter, modify, amend, limit, or restrict the contractual obligations of the
parties.
22. GOVERNING LAW; CONSENT TO SERVICE
This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida applicable to agreements made and to be performed
therein (without giving effect to the conflict of law provisions of such
State). Each party hereto irrevocably consents to the jurisdiction of the
courts of the State of Florida with respect to any action, suit or proceeding
brought arising under this Agreement or any of the transactions or agreements
contemplated herein and agree further that service of process of notice in any
such action, suit or proceeding shall be effective if in writing and sent by
certified or registered mail, return receipt requested, postage prepaid, as
provided in paragraph 19 hereof.
23. ENTIRE AGREEMENT
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This Agreement, including all Schedules and Exhibits hereto, and all
agreements to be delivered by the parties pursuant hereto represent 'he entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and, therefore, supersede all prior negotiations between
such parties and cannot be amended, supplemented or changed orally, but only by
an agreement in writing which makes specific reference to this Agreement or the
agreement delivered pursuant hereto, as the case may be, and which is signed by
the party against whom enforcement of any such amendment, supplement or
modification is sought.
24. COUNTERPARTS
This Agreement may be signed in two or more counterparts, each signed by
one or more of the parties hereto so long as each party shall sign at least one
counterpart of this Agreement, all of which taken together shall constitute one
and the same instrument.
25. PUT, CALL AND TAG ALONG RIGHTS
25.1 Huizenga Put Option.
(a) Upon written demand made at any time during the period
commencing on July 1, 2001 and terminating on June 30, 2002, Huizenga shall
have the right, but not the obligation, to require ISC (directly or through its
designee) and PMI (directly or through its designee) to each purchase from him,
or from an entity wholly owned by him, one half of the ten percent (10%)
limited liability company interest in the Company owned by him or an entity
wholly owned by him (the "Huizenga Membership Interest").
(b) If during the period commencing immediately after the Closing
Date and ending on July 1, 2001, the aggregate number of Units (as that term
is defined in the Company's Operating Agreement) transferred by ISC and PMI (or
the ISC Affiliate and the PMI Affiliate) and/or sold by the Company to new
members exceeds
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fifty percent (50%) of the Units outstanding immediately after the Closing,
Huizenga shall have the right, but not the obligation, to require ISC (directly
or through its designee) and PMI (directly or through its designee) to each
purchase from him, or an entity wholly owned by him, the Huizenga Membership
Interest.
(c) The purchase price for the Huizenga Membership Interest shall be
$2,950,000, increased by the amount of any capital contributed to the Company
after the Closing Date by the owner of the Huizenga Membership Interest, and
decreased by the amount of any capital distributed by the Company to the owner
of the Huizenga Membership Interest (other than distributions pursuant to
Section 7.4 of the Company's Operating Agreement), plus interest on the
$2,950,000 as increased or decreased from time to time as specified above,
calculated from the Closing Date at the rate of seven and one half percent
(7.5%) per annum. One half of the purchase price for the Huizenga Membership
Interest shall be paid by each of the Purchasers or their designees. The
closing for the purchase of the Huizenga Membership Interest shall occur within
thirty (30) days after the demand to purchase the Huizenga Membership Interest
specified in subparagraph (a) above.
(d) The Company shall take all actions necessary or appropriate to
reflect the transfer of the Huizenga Membership Interest after the purchase has
been completed.
25.2 Sanchez Put Option.
(a) Sanchez (or his executor in the event of his death) shall have the
right, but not the obligation, to require ISC (directly or through its
designee) and PMI (directly or through its designee) to each purchase from him,
or from an entity wholly owned by him, one half of the ten percent (10%)
limited liability company interest in the Company owned by him or an entity
wholly owned by him (the "Sanchez Membership Interest"). The foregoing right
to require the purchase of the Sanchez Membership Interest may be exercised
upon a written demand (the "Sanchez Demand") made (i) at
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any time during the six month period commencing July 1, 2001, (ii) at any time
during the period commencing on January 1, 2002 and ending on September 30,
2005 provided that such demand must be made within six months after Sanchez is
no longer employed by the Company or (iii) within six months after the death of
Sanchez if he should die prior to July 1, 2005.
(b) If during the period commencing immediately after the Closing Date and
ending on July 1, 2001, the aggregate number of Units (as that term is defined
in the Operating Agreement) transferred by ISC and PMI (or the ISC Affiliate
and the PMI Affiliate) and/or sold by the Company to new members exceeds fifty
percent (50%) of the Units outstanding immediately after the Closing, Sanchez
shall have the right, but not the obligation, to require ISC (directly or
through its designee) and PMI (directly or through its designee) to each
purchase from him, or an entity wholly owned by him, the Sanchez Membership
Interest.
(c) The purchase price for the Sanchez Membership Interest shall be the
greater of $2,950,000, increased by the amount of any capital contributed to
the Company after the Closing by or on behalf of the owner of the Sanchez
Membership Interest and decreased by the amount of any capital distributed by
the Company to the owner of the Sanchez Membership Interest (other than
distributions pursuant to Section 7.4 of the Company's Operating Agreement), or
the amount calculated as follows:
(i) The Company's regular accountant will calculate the net income of
the Company for its fiscal year immediately preceding or coincident with the
date of the Sanchez Demand increased by the amount of any allocated
administrative overhead charges made by ISC, PMI or their affiliates during
such fiscal year which are in excess of commercially reasonable charges for
similar administrative services and reduced by the amount of federal, state and
local income taxes which would have applied to such income if the Company had
been taxed as a Subchapter C corporation rather than as a limited liability
company taxes as a partnership. Such adjusted net
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income is hereinafter referred to as the "Adjusted Income." All calculations
made by the Company's regular accountant shall be made utilizing generally
accepted accounting principals applied in a manner consistent with past
practices for the Company. Sanchez and his authorized representatives shall
have reasonable access to all the work papers of the accountant which
demonstrate his calculations made in accordance with the terms of this
subparagraph (i).
(ii) The Adjusted Income shall be multiplied by the average
of the earnings multiple at which shares of common stock of ISC and PMI were
being publically traded (on average) during the thirty (30) day period
immediately preceding the Sanchez Demand. For purposes of calculating earnings
multiple, earnings will be deemed to be the per share earnings reflected on the
annual financial statement for the fiscal year ending prior to the date of the
Sanchez Demand and the daily trading price shall be the "closing price" for
such stock on the principal national securities exchange or the Nasdaq National
Market on which it is traded for a trading day. The calculation for a company
with more than one class of publically traded common stock, shall be made based
on the most actively publically traded class of common stock for such Company
during the applicable valuation period. If either ISC or PMI has a $0 or a
negative per share earnings reflected on the applicable financial statement,
then the earnings multiple shall be calculated with reference only to the
corporation with positive per share earnings.
(iii) The product obtained after following the procedure
specified in subparagraph (ii) above shall then be discounted by twenty percent
(20%) and such discounted balance shall be the alternative purchase price for
the Sanchez Membership Interest.
25.3 Call Option for Huizenga Membership Interest.
(a) Upon written demand made at any time during the period
commencing July 1, 2002 and ending on the tenth anniversary of such date (the
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"Huizenga Call Period"), ISC (directly or through its designee) and PMI
(directly or through its designee) shall have the right, but not the
obligation, to require Huizenga to sell or cause one of the Sellers to sell to
each of them one half of the Huizenga Membership Interest at a price equal to
the greater of $2,950,000 adjusted as set forth in paragraph 25.1(c) above or
calculated as set forth below, provided that Huizenga has not exercised his put
right under paragraph 25.1 prior to the date of such demand. The call may not
be exercised for less than the entire Huizenga Membership Interest. If during
the Huizenga Call Period, Huizenga desires to sell the Huizenga Membership
Interest in accordance with the terms of Section 8.6 of the Company's Operating
Agreement, then ISC (directly or through its designee) and PMI (directly or
through its designee) shall have thirty (30) days after receipt of the Offer
specified in Section 8.6 of the Company's Operating Agreement to exercise their
call rights specified in this paragraph 25.3; provided however, that if the
call rights are exercised, the purchase price for the Huizenga Membership
Interest shall be the lesser of the amount specified in the Offer or the price
determined as specified in the first sentence of this paragraph 25.3. If the
call rights are not timely exercised, Huizenga may proceed to sell the Huizenga
Membership Interest strictly in accordance with the terms of the Offer and, if
the sale occurs, no further call rights shall apply to the sold Huizenga
Membership Interest.
(b) Purchasers and Huizenga shall each within ten (10) days after the
demand specified above select an independent appraiser of national reputation
to make an appraisal of the fair market value of the Huizenga Membership
Interest in accordance with the methodology described below to be completed
within thirty (30) days from the date on which the Purchasers make their
demand. If a party does not designate an appraiser in a timely manner, an
appraiser shall be selected by the American Arbitration Association. Each
appraiser in making a fair market value determination shall take into account,
among other things, the income, assets, liabilities,
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replacement cost of the assets, and the future prospects of the Company. The
fair market value determination made by any appraiser shall be made as of the
end of the calendar quarter immediately preceding the calendar quarter in which
Purchasers exercise their call option as provided above. Each Appraiser shall
value the Company as a whole on an ongoing business basis. The Huizenga
Membership Interest shall then be valued at ten percent (10%) of the Company
valuation and subject to a twenty percent (20%) discount because it is a
minority interest. No other discount shall apply to the valuation of the
Huizenga Membership Interest under this paragraph 25.3.
(c) If the two fair market value determinations are within a five
percent (5%) variance of each other, the price of the Huizenga Membership
Interest shall be the average of the two appraisals. If the two appraisals
vary by more than five percent (5%), the two appraisers shall promptly select a
third appraiser, who shall make an appraisal of the fair market value of the
Huizenga Membership Interest and the price for the Huizenga Membership Interest
shall be the middle valuation of the three appraisals.
(d) The closing of the transaction shall occur on or before sixty (60)
days following the date on which the purchase price has been determined by the
appraisal process set forth above.
25.4 Call Option for Sanchez Membership Interest.
(a) Upon written demand made (the "Purchasers' Demand") at any time
during the "Sanchez Call Period", as that term is hereinafter defined, ISC
(directly or through its designees) and PMI (directly or through its designees)
shall have the right, but not the obligation, to require Sanchez (or his
executor in the event of Sanchez's death) to sell or cause one of the Sellers
to sell to each of them one half of the Sanchez Membership Interest at a price
calculated as set forth below provided that Sanchez has not exercised his put
right under paragraph 25.2 prior to the date of such demand. The call may not
be exercised for less than the entire Sanchez Membership
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Interest. If during the Sanchez Call Period, Sanchez desires to sell the
Sanchez Membership Interest in accordance with the terms of Section 8.6 of the
Company's Operating Agreement, then ISC (directly or through its designee) and
PMI (directly or through its designee) shall have thirty (30) days after
receipt of the Offer specified in Section 8.6 of the Company's Operating
Agreement to exercise their call rights specified in this paragraph 25.4;
provided however, that if the call rights are exercised, the purchase price for
the Sanchez Membership Interest shall be the lesser of the amount specified in
the Offer or the amount determined as specified below in this paragraph 25.4.
If the call rights are not timely exercised, Sanchez may proceed to sell the
Sanchez Membership Interest strictly in accordance with the terms of the Offer
and, if the sale occurs, no further call rights shall apply to the sold Sanchez
Membership Interest.
(b) The "Sanchez Call Period" shall be (i) the one year period commencing
July 1, 2005, (ii) the period commencing on January 1, 2002 and ending on June
30, 2005 provided that the demand must be made within one year after Sanchez's
employment by the Company is terminated and (iii) one year after the death of
Sanchez if he should die prior to July 1, 2005.
(c) The purchase price for the Sanchez Membership Interest shall be the
greater of $2,950,000 increased by the amount of any capital contributed to the
Company after the Closing by or on behalf of the owner of the Sanchez
Membership Interest and decreased by the amount of any capital distributed by
the Company to the owner of the Sanchez Membership Interest (other than
distributions pursuant to Section 7.4 of the Company's Operating Agreement) or
the amount calculated as follows:
(i) The Company's regular accountant will calculate the net income of
the Company for its fiscal year immediately preceding or coincident with the
date of the Purchasers' Demand increased by the amount of any allocated
administrative overhead charges made by ISC, PMI or their affiliates during
such fiscal year which are in excess of commercially reasonable charges for
similar administrative
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services and reduced by the amount of federal, state and local income taxes
which would have applied to such income if the Company had been taxed as a
Subchapter C corporation rather than as a limited liability company taxed as a
partnership. Such adjusted net income is hereinafter referred to as the
"Adjusted Income." All calculations made by the Company's regular accountant
shall be made utilizing generally accepted accounting principals applied in a
manner consistent with past practices for the Company. Sanchez and his
authorized representatives shall have reasonable access to all the work papers
of the accountant which demonstrate his calculations made in accordance with
the terms of this subparagraph (i).
(ii) The Adjusted Income shall be multiplied by the average of the
earnings multiple at which shares of common stock of ISC and PMI were being
publically traded (on average) during the thirty (30) day period immediately
preceding the Purchasers' Demand. For purposes of calculating earnings
multiple, earnings will be deemed to be the per share earnings reflected on the
annual financial statement for the most recent fiscal year ending prior to the
date of the Purchasers' Demand and the daily trading price shall be the
"closing price" for such stock on the principal national securities exchange or
the Nasdaq National Market on which it is traded for a trading day. The
calculation for a company with more than one class of publically traded common
stock, shall be made based on the most actively publically traded class of
common stock for such company during the applicable valuation period. If either
ISC or PMI has a $0 or a negative per share earnings reflected on the
applicable financial statement, then the earnings multiple shall be calculated
with reference only to the corporation with positive per share earnings.
(iii) The product obtained after following the procedure specified in
subparagraph (ii) above shall then be discounted by twenty percent (20%) and
such discounted balance shall be the alternative purchase price for the Sanchez
Membership Interest.
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25.5 Tag Along Rights. In the event that ISC, or the ISC Affiliate owning
the ISC Interest, and PMI, or the PMI Affiliate owning the PMI Interest, shall
propose to sell in any transaction or series of related transactions at least
eighty percent (80%) of their entire Member Interest (as that term is defined
in the Company's Operating Agreement) then ISC and PMI shall provide written
notice of the proposed sale to all the other Members of the Company and provide
to such other Members the opportunity to sell a proportionate share of their
entire Member Interests at the same price per Member Unit and otherwise on the
same terms and conditions upon which the ISC Interest and the PMI Interest are
to be sold.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed by their duly authorized representatives as of the
date first above written.
HOMESTEAD-MIAMI SPEEDWAY, LLC
By: /s/ Rafael Sanchez
---------------------------
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INTERNATIONAL SPEEDWAY CORPORATION
By: /s/ H. Lee Combs
-----------------------------
PENSKE MOTORSPORTS, INC.
By: /s/ Gregory Penske
-----------------------------
HOMESTEAD MOTORSPORTS JOINT VENTURE
By: /s/ Rafael Sanchez
-----------------------------
MIAMI MOTORSPORTS JOINT VENTURE,
By: /s/ Rafael Sanchez
-----------------------------
/s/ Rafael Sanchez
---------------------------------
RAFAEL A. SANCHEZ
/s/ Wayne Huizenga
---------------------------------
WAYNE HUIZENGA
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EXHIBIT A
CERTIFICATE OF FORMATION
OF
HOMESTEAD-MIAMI SPEEDWAY, LLC
The undersigned individual, acting as sole organizer, hereby forms a
limited liability company under the Delaware Limited Liability Company Act (the
"Act") and does hereby adopt as the Certificate of Formation of such limited
liability company the following:
Article I. Name. The name of the limited liability company shall be
Homestead-Miami Speedway, LLC (the "Company").
Article 2. Duration. The period of the Company's duration shall be
perpetual from the date of filing of these Articles of Organization with the
Secretary of State of the State of Delaware, until dissolved in accordance with
the Act.
Article 3. Purpose. The Company shall have unlimited power to engage in
and do any lawful act concerning any or all lawful businesses for which limited
liability companies may be organized according to the laws of the State of
Delaware, including all powers and purposes now and hereafter permitted by law
to a limited liability company.
Article 4. Registered Office and Registered Agent.
A. The Address of the registered office of the Company in Delaware is
30 The Green, Dover, Delaware 19903.
B. The name of the registered agent of the Company at the above
registered office is CT Corporation System.
Dated: ____________________, 1997.
ORGANIZER
Name:__________________________
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Printed:_______________________
<PAGE> 68
EXHIBIT B
OPERATING AGREEMENT
FOR
HOMESTEAD-MIAMI SPEEDWAY, LLC
JULY __, 1997
<PAGE> 69
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE I PURPOSES .................................................................................... 1
ARTICLE II ORGANIZATIONAL MATTERS ..................................................................... 1
Section 2.1. Formation ........................................................................... 1
Section 2.2. Principal Place of Business ......................................................... 1
Section 2.3. Registered Office and Registered Agent .............................................. 1
Section 2.4. Duration ............................................................................ 2
ARTICLE III MEMBERS AND CAPITAL STRUCTURE ............................................................. 2
Section 3.1. Names and Addresses of Members ...................................................... 2
Section 3.2. Units Representing Membership Interests ............................................. 2
Section 3.3. Capital Contributions ............................................................... 2
Section 3.4. Additional Capital .................................................................. 3
Section 3.5. Capital Accounts .................................................................... 3
Section 3.6. No Rights of Redemption ............................................................. 3
Section 3.7. Member Loans or Services ............................................................ 3
Section 3.8. Admission of Additional Members ..................................................... 4
Section 3.9. No Member Responsible for Other Member's Commitment ................................. 4
ARTICLE IV MEETINGS OF MEMBERS ........................................................................ 4
Section 4.1. Annual Meetings ..................................................................... 4
Section 4.2. Special Meetings .................................................................... 4
Section 4.3. Notice of Meetings .................................................................. 4
Section 4.4. Waiver of Notice .................................................................... 4
Section 4.5. Voting Rights ....................................................................... 5
Section 4.6. Action by Consent ................................................................... 5
Section 4.7. Presence ............................................................................ 5
Section 4.8. Conduct of Meetings ................................................................. 5
ARTICLE V MANAGERS 5
Section 5.1. Board of Managers ................................................................... 5
Section 5.2. Powers of the Managers .............................................................. 6
Section 5.3. Meetings ............................................................................ 6
Section 5.4. Tax Matters Manager ................................................................. 6
Section 5.5. Salaries ............................................................................ 7
Section 5.6. Vacancies ........................................................................... 7
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Section 5.7. Removal of Managers and Officers .................................................... 7
ARTICLE VI ACCOUNTING AND RECORDS ..................................................................... 8
Section 6.1. Records and Accounting .............................................................. 8
Section 6.2. Access to Accounting Records ........................................................ 8
Section 6.3. Annual Tax Information .............................................................. 8
Section 6.4. Accounting Decisions ................................................................ 8
Section 6.5. Federal Income Tax Elections ........................................................ 8
ARTICLE VII ALLOCATIONS AND DISTRIBUTIONS ............................................................. 9
Section 7.1. Allocation of Net Income, Net Loss or Capital Gains ................................. 9
Section 7.2. Special Allocations ................................................................. 9
Section 7.3. Curative Allocations ................................................................ 11
Section 7.4. Distribution of Available Cash ...................................................... 11
Section 7.5. Allocation of Income and Loss and Distributions
in Respect of Interests Transferred ......................................................... 11
ARTICLE VIII RESTRICTIONS ON WITHDRAWAL AND TRANSFERS OF INTERESTS .................................... 12
Section 8.1. Withdrawal .......................................................................... 12
Section 8.2. Basic Restrictions on Transfer ...................................................... 12
Section 8.3. Further Restrictions on Transfer .................................................... 12
Section 8.4. Status of Transferee and Transferor ................................................. 12
Section 8.5. Pledge of Interests ................................................................. 13
Section 8.6. Right of First Refusal .............................................................. 13
Section 8.7. Effect of a Permitted Transfer ...................................................... 14
Section 8.8. Effect of a Violation ............................................................... 14
ARTICLE IX DISSOCIATION OF A MEMBER ................................................................... 14
Section 9.1. Dissociation ........................................................................ 14
Section 9.2. Rights of Dissociating Member ....................................................... 15
ARTICLE X DISSOLUTION AND WINDING UP .................................................................. 15
Section 10.1. Dissolution ........................................................................ 15
Section 10.2. Winding Up ........................................................................ 15
Section 10.3. Distribution of Assets ............................................................. 16
ARTICLE XI AMENDMENTS ................................................................................. 16
Section 11.1. Proposal of Amendments ............................................................. 16
Section 11.2. Approval of Amendments ............................................................. 16
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ARTICLE XII MISCELLANEOUS ............................................................................. 17
Section 12.1. Complete Agreement ................................................................. 17
Section 12.2. Governing Law ...................................................................... 17
Section 12.3. Binding Effect; Conflicts .......................................................... 17
Section 12.4. Headings; Interpretation ........................................................... 17
Section 12.5. Severability ....................................................................... 17
Section 12.6. Multiple Counterparts .............................................................. 17
Section 12.7. Additional Documents and Acts ...................................................... 18
Section 12.8. No Third Party Beneficiary ......................................................... 18
Section 12.9. Notices ............................................................................ 18
Section 12.10. Title to Company Property ......................................................... 18
Section 12.11. Reliance on Authority of Person Signing Agreement ................................. 18
Section 12.12. No Remedies Exclusive ............................................................. 18
Section 12.13. Advice of Counsel ................................................................. 19
Section 12.14. Other Ventures .................................................................... 19
Section 12.15. Early Termination of Membership ................................................... 19
</TABLE>
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OPERATING AGREEMENT FOR
HOMESTEAD-MIAMI SPEEDWAY, LLC
THIS OPERATING AGREEMENT (this "Agreement") is made and entered into this
_____________ day of July, 1997, by and among the undersigned parties, as
initial members of the Homestead-Miami Speedway, LLC, a Delaware limited
liability company (the "Company"). The Company was organized as a limited
liability company under the Delaware Limited Liability Company Act, as amended,
Title 6, Chapter 18-101 et seq. (the "Act"). Certain defined terms used in
this Agreement are set forth in Schedule I (Schedule of Definitions) attached
hereto and made a part hereof. In consideration of the mutual covenants and
agreements contained in this Agreement and other good and valuable
consideration, and intending to be legally bound hereby, the undersigned
parties hereby agree as follows:
ARTICLE I
PURPOSES
As set forth in the Articles of Organization, the purposes of the Company
are to engage in and do any act in furtherance of any and all lawful businesses
for which limited liability companies may be formed under the Act.
ARTICLE II
ORGANIZATIONAL MATTERS
SECTION 2.1. FORMATION. The Company was formed pursuant to the Act upon
the filing of Articles of Organization ("Articles"). The rights and
obligations of the Members shall be as provided under the Act, the Articles and
this Agreement. The Members agree to each of the provisions of the Articles.
SECTION 2.2. PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Company shall be One Speedway Boulevard, Homestead, Florida
33015, or such other address as may be established by the Members.
SECTION 2.3. REGISTERED OFFICE AND REGISTERED AGENT. The Company's
registered office shall be 30 The Green, Dover, Delaware 19903 and the name of
its initial registered agent at such address shall be CT Corporation System.
The Company may designate another registered office or agent at any time by
following the procedures set forth in the Act.
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SECTION 2.4. DURATION. The existence of the Company shall continue in
perpetuity, unless the Company is sooner dissolved in accordance with Article
X, Section 6 of the Articles or the Act.
ARTICLE III
MEMBERS AND CAPITAL STRUCTURE
SECTION 3.1. NAMES AND ADDRESSES OF MEMBERS. All Members of the Company
and their last known business, residence or mailing address shall be listed on
the attached Exhibit A. The Members shall be required to update Exhibit A from
time to time as necessary to accurately reflect the information therein,
including the information referred to in Section 3.2 below.
SECTION 3.2. UNITS REPRESENTING MEMBERSHIP INTERESTS. The Interests of
Members in the Company are divided into and represented by Units. Each
Member's respective number of Units is set forth in Exhibit A, as the same
shall be amended from time to time to reflect any changes in the number of
Units of Members. The Members agree that each Unit shall entitle the Member
possessing such Unit to:
(a) Equal governance rights per Unit and to one vote per Unit on matters
on which the Members may vote under the Articles, this Agreement and/or the
Act;
(b) Subject to Article VII, an equal proportionate share per Unit of the
Company's net income, gains, losses, deductions and credits; and
(c) Subject to Article X, an equal proportionate share per Unit of amounts
distributed to the Members in respect of their Interests upon dissolution of
the Company.
Unless otherwise approved by the Members, the Company will not issue
certificates representing Units, but at the written request of a Member, the
Company will provide a certified statement setting forth the total number of
Units issued and outstanding and the number of Units issued to the requesting
Member, as of the date of the statement.
SECTION 3.3. CAPITAL CONTRIBUTIONS. The initial Capital Contribution to
the Company of each Member is set forth on Exhibit A. Absent approval by a
Majority in Interest of the Members, no Capital Contributions may be made other
than in cash and the Company shall not be obligated to recognize as a Capital
Contribution any transfer to the Company of property other than cash. No
interest shall be paid on any Capital Contribution.
SECTION 3.4. ADDITIONAL CAPITAL. Absent approval by a Majority in
Interest of the Members, the Members shall not be obligated to make any Capital
Contributions other than the initial Capital Contributions specified in Section
3.3. Absent approval of
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a Majority In Interest of the Members, no Member shall have the right to make
Capital Contributions beyond that Member's initial Capital Contribution as
specified in Section 3.3.
SECTION 3.5. CAPITAL ACCOUNTS.
(a) An individual capital account (the "Capital Account") shall be
established and maintained on behalf of each Member, including any Additional
Member who shall hereafter receive an Interest, in the manner provided by
Treasury Regulation Section 1.704-l(b)(2)(iv). To the extent consistent with
Treasury Regulation Section 1.704-l(b)(2)(iv), the Capital Account of each
Member shall consist of (i) the amount of cash such Member has contributed to
the Company, plus (ii) the agreed fair market value of any property such Member
has contributed to the Company, net of any liabilities assumed by the Company
or to which such property is subject, plus (iii) the amount of profits or
income (including tax-exempt income) allocated to such Member, less (iv) the
amount of losses and deductions allocated to such Member, less (v) the amount
of all cash distributed to such Member, less (vi) the fair market value of any
property distributed to such Member, net of any liability assumed by such
Member or to which such property is subject, less (vii) such Member's share of
any other expenditures which are not deductible by the Company for federal
income tax purposes or which are not allowable as additions to the basis of
Company property, and (viii) subject to such other adjustments as may be
required under the Code. The Capital Account of a Member shall not be affected
by any adjustments to basis made pursuant to Section 743 of the Code but shall
be adjusted with respect to adjustments to basis made pursuant to Section 734
of the Code to the extent provided in Treasury Regulation Section
1.704-l(b)(2)(iv)(m).
(b) Except as is specifically provided otherwise in this Agreement, no
Member shall have any liability or obligation to restore a negative or deficit
balance in such Member's Capital Account.
SECTION 3.6. NO RIGHTS OF REDEMPTION. No Member shall have the right to:
(a) have that Member's Units or Interest redeemed, (b) have that Member's
Capital Contribution returned, or (c) subject to Article VII and Article X,
otherwise receive property of the Company; even if that Member dissociates
prior to termination of the Company. Even at termination, the Member's rights
are limited to those set forth in Article X. To the extent a Member has a
right to demand a distribution or return of the Member's Capital Contributions,
the Member shall have only the right to demand and receive cash therefor.
SECTION 3.7. MEMBER LOANS OR SERVICES. Unless otherwise approved by a
Majority in Interest of the Members, loans or services by any Member to the
Company shall not be considered Capital Contributions.
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SECTION 3.8. ADMISSION OF ADDITIONAL MEMBERS. With the approval of a
Majority in Interest of the Members to the Company Additional Members who will
be entitled to participate in the rights of Members as described in Section
3.2. Additional Members shall be allocated net income, gains, losses,
deductions and credits by such method as may be provided in this Agreement, and
if no method is specified, then as may be permitted by Section 706(d) of the
Code.
SECTION 3.9. NO MEMBER RESPONSIBLE FOR OTHER MEMBER'S COMMITMENT. In the
event that any Member (or any of such Member's shareholders, partners, members,
owners, or Affiliates (collectively, the "Liable Member")) has incurred any
indebtedness or obligation prior to the date of this Agreement that relates to
or otherwise affects the Company, neither the Company nor any other Member
shall have any liability or responsibility for or with respect to such
indebtedness or obligation.
ARTICLE IV
MEETINGS OF MEMBERS
SECTION 4.1. ANNUAL MEETINGS. Annual meetings of the Members shall be
held no later than ninety (90) days following the close of the Company's fiscal
year at the principal offices of the Company, or on such other date or at such
other place as may be designated by a Majority in Interest of the Members.
SECTION 4.2. SPECIAL MEETINGS. Special meetings of the Members, for any
purpose or purposes, unless otherwise prescribed by statute, may be called by
any Member upon notice in writing to the Company of the proposed meeting and
the matters proposed to be acted upon.
SECTION 4.3. NOTICE OF MEETINGS. The Company shall deliver or mail
written notice stating the date, time and place of any Members' meeting and, in
the case of a special Members' meeting or when otherwise required by law, a
description of the purposes for which the meeting is called, to each Member of
record entitled to vote at the meeting, at such address as appears in the
records of the Company and at least five (5), but no more than sixty (60), days
before the date of the meeting.
SECTION 4.4. WAIVER OF NOTICE. A Member may waive notice of any meeting,
before or after the date and time of the meeting as stated in the notice, by
delivering a signed waiver to the Company for inclusion in the minutes. A
Member's attendance at any meeting, in person or by proxy (a) waives objection
to lack of notice or defective notice of the meeting, unless the Member at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting, and (b) waives objection to consideration of a particular
matter at the meeting that is not within the purposes described in the meeting
notice, unless the Member objects to considering the matter when it is
presented.
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SECTION 4.5. VOTING RIGHTS. Except as otherwise provided herein, on all
matters that come before the Members for a vote, each Member shall be entitled
to one vote for each Unit owned by such Member. The presence of a Majority in
Interest of the Members shall constitute a quorum for any meeting of the
Members. Except as otherwise provided in this Agreement, approval of any
action by Majority in Interest of the Members requires the approval of a
Majority in Interest of the Members.
SECTION 4.6. ACTION BY CONSENT. Any action required or permitted to be
taken at a Members' meeting may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
Members. The written consent or consents shall be delivered to the Company for
inclusion in its minutes.
SECTION 4.7. PRESENCE. Any or all Members may participate in any annual
or special Members' meeting by, or through the use of, any means of
communication by which all Members participating may simultaneously hear each
other during the meeting. A Member so participating is deemed to be present in
person at the meeting.
SECTION 4.8. CONDUCT OF MEETINGS. At any Members' meeting, the Members
with the approval of a Majority in Interest of the Members shall appoint a
Member to preside at the meeting and shall appoint a person to act as secretary
of the meeting. The secretary of the meeting shall prepare minutes of the
meeting which shall be placed in the minute book of the Company.
ARTICLE V
MEMBER COMMITTEE
SECTION 5.1. MEMBER COMMITTEE.
(a) The day to day management and administration of the business and
affairs of the Company shall be under the direction, supervision, control and
authority of a Member Committee (the "Member Committee"). The Member Committee
shall consist of one representative from each Member for each 10 Units owned by
such Member. In addition, each Member appointing representatives to the Member
Committee shall appoint an alternate representative to serve in lieu of the
regular representative on the Member Committee. No member of the Member
Committee shall be compensated by the Company, including out-of-pocket costs.
The Member Committee shall devote such time to the Company as may be reasonably
required for the achievement of the purposes of the Company. A Member electing
a representative to the Member Committee may remove and replace such
representative at any time upon notice to the other Members.
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(b) In addition to the terms and conditions of this Operating Agreement
the Member Committee shall adopt rules and regulations governing the conduct of
the business and affairs of the Company and of the Member Committee.
(c) For as long as Miami Motorsports Joint Venture is permitted to appoint
at least one representative to the Member Committee, Wayne Huizenga shall be
appointed as a representative. For as long as Homestead Motorsports Joint
Venture is permitted to appoint at least one representative to the Member
Committee, Rafael A. Sanchez shall be appointed as a representative.
ARTICLE VI
ACCOUNTING AND RECORDS
SECTION 6.1. RECORDS AND ACCOUNTING. The books and records of the
Company shall be kept, and the financial position and the results of its
operations recorded, in accordance with generally accepted accounting
principles consistently applied ("GAAP"). The books and records of the Company
shall reflect all Company transactions and shall be appropriate and adequate
for the Company's business. The fiscal year of the Company for financial
reporting and for federal income tax purposes shall be the calendar year.
SECTION 6.2. ACCESS TO ACCOUNTING RECORDS. All books and records of the
Company shall be maintained at any office of the Company or at the Company's
principal place of business, and each Member, and his, her, or its duly
authorized representative, may inspect and copy such books and records upon
reasonable notice and request, during normal business hours.
SECTION 6.3. ANNUAL TAX INFORMATION. The Company shall use its best
efforts to deliver to each Member within 60 days after the end of each fiscal
year all information necessary for the preparation of such Member's federal and
state income tax returns. The Company shall also use its best efforts to
prepare, within 60 days after the end of each fiscal year, a financial report
of the Company for such fiscal year containing a balance sheet as of the last
day of the year then ended, an income statement for the year then ended, a
statement of sources and applications of funds, and a statement of
reconciliation of the Capital Accounts of the Members.
SECTION 6.4. ACCOUNTING DECISIONS. All decisions as to accounting
matters, except as otherwise specifically set forth in this Agreement, shall be
made by the Members. The Members may rely upon the advice of their accountants
as to whether such decisions are in accordance with GAAP.
SECTION 6.5. FEDERAL INCOME TAX ELECTIONS. The Company shall make an
election under Section 754 of the Code to adjust the basis of assets of the
Company. The
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Company may make, but is not required to make, any other elections for federal
income tax purposes including, but not limited to, any election to use an
accelerated depreciation method on any depreciable unit of the assets of the
Company to the extent permitted by law.
ARTICLE VII
ALLOCATIONS AND DISTRIBUTIONS
SECTION 7.1. ALLOCATION OF NET INCOME, NET LOSS OR CAPITAL GAINS. Except
as may be expressly provided otherwise in this Article VII, and subject to the
provisions of Sections 704(b) and 704(c) of the Code, the net income, net loss,
or capital gains of the Company for each fiscal year of the Company shall be
allocated to the Members, pro rata in accordance with their respective
Percentage Interests.
SECTION 7.2. SPECIAL ALLOCATIONS. The following special allocations
shall be made in the following order:
(a) Minimum Gain Chargeback. Except as otherwise provided in Treasury
Regulation Section 1.704-2(f), notwithstanding any other provision of this
Article VII, if there is a net decrease in Company Minimum Gain during any
fiscal year, each Member shall be specially allocated items of Company income
and gain for such fiscal year (and, if necessary, subsequent fiscal years) in
an amount equal to such Member's share of the net decrease in Company Minimum
Gain, determined in accordance with Treasury Regulation Section 1.704-2(g).
Allocations pursuant to the previous sentence shall be made in proportion to
the respective amounts required to be allocated to each Member pursuant
thereto. The items to be so allocated shall be determined in accordance with
Treasury Regulation Sections 1.704-2(f)(6) and 1.7042(j)(2). This Section
7.2(a) is intended to comply with the minimum gain chargeback requirement in
Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently
therewith.
(b) Member Nonrecourse Debt Minimum Gain Chargeback. Except as otherwise
provided in Treasury Regulation Section 1.704-2(i)(4), notwithstanding any
other provision of this Article VII, if there is a net decrease in Member
Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during
any Fiscal Year, each Member who has a share of the Member Nonrecourse Debt
Minimum Gain attributable to such Member Nonrecourse Debt, determined in
accordance with Treasury Regulation Section 1.704-2(i)(5), shall be
specifically allocated items of Company income and gain for such fiscal year
(and, if necessary, subsequent fiscal years) in an amount equal to such
Member's share of the net decrease in Member Nonrecourse Debt Minimum Gain
attributable to such Member Nonrecourse Debt, determined in accordance with
Treasury Regulation Section 1.704-2(i)(4). Allocations pursuant to the
previous sentence shall be made in proportion to the respective amounts
required to be allocated to each Member pursuant thereto. The items to be so
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allocated shall be determined in accordance with Treasury Regulation Sections
1.704-2(i)(4) and 1.704-2(j)(2). This Section 7.2(b) is intended to comply
with the minimum gain chargeback requirement in Treasury Regulation Section
1.704-2(i)(4) and shall be interpreted consistently therewith.
(c) Qualified Income Offset. In the event any Member unexpectedly
receives any adjustments, allocations, or distributions described in Treasury
Regulation Sections 1.7041(b)(2)(ii)(d)(4),1.704-1(b)(2)(ii)(d)(5) or
1.704-l(b)(2)(ii)(d)(6), items of Company income and gain shall be specially
allocated to each such Member in an amount and manner sufficient to eliminate,
to the extent required by the Treasury Regulations, the Adjusted Capital
Account Deficit of such Member as quickly as possible, provided that an
allocation pursuant to this Section 7.2(c) shall be made only if and to the
extent that such Member would have an Adjusted Capital Account Deficit after
all other allocations provided for in this Article VII have been tentatively
made as if this Section 7.2(c) were not in the Agreement.
(d) Gross Income Allocation. In the event any Member has a deficit
Capital Account at the end of any fiscal year which is in excess of the sum of
(i) the amount such Member is obligated to restore pursuant to any provision of
this Agreement, and (ii) the amount such Member is deemed to be obligated to
restore pursuant to the penultimate sentences of Treasury Regulation Sections
1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated
items of Company income and gain in the amount of such excess as quickly as
possible, provided that an allocation pursuant to this Section 7.2(d) shall be
made only if and to the extent that such Member would have a deficit Capital
Account in excess of such sum after all other allocations provided for in this
Article VII have been made as if Section 7.2(c) hereof and this Section 7.2(d)
were not in the Agreement.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year
shall be specifically allocated among the Members in proportion to their
Percentage Interests.
(f) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for
any fiscal year shall be specially allocated to the Member who bears the
economic risk of loss with respect to the Member Nonrecourse Debt to which such
Member Nonrecourse Deductions are attributable in accordance with Treasury
Regulation Section 1.704-2(i)(1).
(g) Section 754 Adjustments. To the extent an adjustment to the adjusted
tax basis of any Company asset pursuant to Section 734(b) or Section 743(b) of
the Code is required pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(m)(2) or 1.704-l(b)(2)(iv)(m)(4) to be taken into account in
determining Capital Accounts as the result of a distribution to a Member in
complete liquidation of the Member's Interest in the Company, the amount of
such adjustment to Capital Accounts shall be treated as an
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item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases such basis), and such gain or loss shall be specially
allocated to the Members in accordance with their Interests in the Company in
the event Treasury Regulation Section 1.704(b)(2)(iv)(m)(2) applies, or to the
Member to whom such distribution was made in the event Treasury Regulation
Section 1.704-1(b)(2)(iv)(m)(4) applies.
SECTION 7.3. CURATIVE ALLOCATIONS. The allocations set forth in Sections
7.2(a) through 7 2(g) hereof (the "Regulatory Allocations") are intended to
comply with certain requirements of the Treasury Regulations. It is the intent
of the Members that, to the extent possible, all Regulatory Allocations shall
be offset either with other Regulatory Allocations or with special allocations
of other items of Company income, gain, loss or deduction pursuant to this
Section 7.3. Therefore, notwithstanding any other provision of this Article
VII (other than the Regulatory Allocations), the Members shall make such
offsetting special allocations of Company income, gain, loss, or deduction so
that, after such offsetting allocations are made, each Member's Capital Account
balance is, to the extent possible, equal to the Capital Account balance such
Member would have had if the Regulatory Allocations were not part of the
Agreement and all Company items were allocated pursuant to Section 7.1.
SECTION 7.4. DISTRIBUTION OF AVAILABLE CASH. Subject to Sec. 18-607 of
the Act, within 90 days after the end of each calendar year, Available Cash, if
any, shall be distributed to the Members, pro rata in accordance with their
respective Percentage Interests, in an amount equal to the product of (a) the
Company's taxable income (as determined by the Company's accountant) for such
calendar year, multiplied by (b) the highest combined federal and state
marginal income tax rate applicable to a Member and in effect from time to
time. Additional distributions may be made at the discretion of a Majority in
Interest of the Members.
SECTION 7.5. ALLOCATION OF INCOME AND LOSS AND DISTRIBUTIONS IN RESPECT
OF INTERESTS TRANSFERRED.
(a) If any Interest is transferred, or is increased or decreased by reason
of the admission of an Additional Member or otherwise, during any fiscal year
of the Company, each item of net income, gain, loss, deduction, or credit of
the Company for such fiscal year shall be assigned pro rata to each day in the
particular period of such fiscal year to which such item is attributable (i.e.,
the day on or during which it is accrued or otherwise incurred), and the amount
of each such item so assigned to any such day shall be allocated to the Member
based upon the Member's respective Percentage Interest at the close of such
day.
(b) Authorized distributions of Company assets in respect of an Interest
shall be made only to the Members who, according to the books and records of
the Company, are the holders of record of the Interests in respect of which
such distributions are made on the actual date of distribution. Neither the
Company nor any
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Member shall incur any liability for making distributions in accordance with the
provisions of the preceding sentence, whether or not the Company or the Member
has knowledge or notice of any transfer or purported transfer of ownership of an
Interest which has not met the requirements of Article VIII. Notwithstanding
any provision above to the contrary, gain or loss of the Company realized in
connection with a sale or other disposition of any of the assets of the Company
shall be allocated solely to the parties owning Interests as of the date such
sale or other disposition occurs.
ARTICLE VIII
RESTRICTIONS ON WITHDRAWAL AND TRANSFERS OF INTERESTS
SECTION 8.1. WITHDRAWAL. No Member shall withdraw from the Company or
otherwise voluntarily cause an Event of Dissociation as to that Member except
upon not less than sixty (60) calendar days prior written notice to the
remaining Members. Upon any such withdrawal or other voluntarily caused Event
of Dissociation, the Member shall be an Assignee as to the Member's Units, but
shall not be entitled to have the Member's Interest redeemed or to otherwise
receive any distribution or other payment on account of the Member's withdrawal
or other voluntarily caused Event of Dissociation. The Company may recover
damages for breach of this Section 8.1 and may offset the Company's damages
against any amount owed to a Member for distributions or otherwise.
SECTION 8.2. BASIC RESTRICTIONS ON TRANSFER. None of the Units
(Interest) of a Member or any portion thereof shall be the subject of a
Transfer, unless the Member has either obtained the prior written consent of a
Majority in Interest of the Members or has fully complied with the provisions
of Section 8.6 and then only in strict accordance with Section 8.6. Any
Transfer or purported Transfer not in compliance with this Article VIII shall
be null and void. Except with the prior written consent of all Members, no
Member shall be permitted to transfer less than all of the Member's Interest.
SECTION 8.3. FURTHER RESTRICTIONS ON TRANSFER. In addition to the
restrictions set forth in Section 9.2, no Member shall Transfer all or any part
of the Member's Interest: (a) without registration under applicable state
securities laws, unless an exemption therefrom applies and, if requested by the
Company, the Member delivers an opinion of counsel satisfactory to the Company,
that registration under any such laws is not required; or (b) if the Interest
or portion thereof, when added to the total of all other Interests sold or
exchanged in the preceding 12 consecutive months prior thereto, would result in
the termination of the Company for tax purposes under Section 708 of the Code.
SECTION 8.4. STATUS OF TRANSFEREE AND TRANSFEROR. Notwithstanding
anything contained in this Agreement to the contrary, any transferee or
recipient of a Unit or Units (or any portion thereof) subject to an effective
Transfer shall be an Assignee and
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shall have no right to (a) vote any Units or portion thereof subject to the
Transfer or to otherwise participate in the management of the business or
affairs of the Company, (b) become a Substitute Member or otherwise exercise any
rights of a Member, or (c) have access to the Company records; unless the
remaining Members, in their sole and absolute discretion approve the admission
of the Assignee as a Substitute Member, and the Assignee executes documentation
satisfactory to the remaining Members accepting and adopting the terms of this
Agreement. The Assignee shall pay all reasonable expenses of the Company in
connection with his or her admission as a Substitute Member. The transferor in
a Transfer of the transferor's entire Interest to an Assignee shall cease to be
a Member and shall not have any power to exercise any rights of a Member;
provided, however, that such transferor is not released from any unpaid
contributions or other liability.
SECTION 8.5. PLEDGE OF INTERESTS. The pledge or granting of a security
interest, lien or other encumbrance in or against all or any portion of a
Member's Interest shall be a Transfer subject to the restrictions of this
Article VIII; provided, that, in any event, the foreclosure of or exercise of
other secured party remedies with respect to such pledge, security interest,
lien or other encumbrance resulting in a Transfer of any such Interest shall
nonetheless be a Transfer subject to the restrictions of this Article VIII.
SECTION 8.6. RIGHT OF FIRST REFUSAL. Subject to other applicable
restrictions set forth in this Article VIII:
(a) A Member or Assignee which desires to sell all (but not less than all)
of its Units to a third party ("Transferor") shall first obtain from such third
party a bona fide written offer to purchase all such Units, stating the terms
and conditions upon which the purchase is to be made and the consideration
offered therefor (the "Offer"). The Transferor shall give notice to the
remaining Member of its intention to sell, furnishing a copy of the Offer and
any proposed documentation for the transaction. No member shall be permitted
to sell less than all its Units except as otherwise permitted by this Agreement
without the consent of a Majority in Interest of the Members.
(b) The remaining Members (not Assignees), shall have the right to
purchase all (but not less than all) of the Units proposed to be sold upon the
same terms and conditions stated in the Offer, by giving notice to the
Transferor of its intention to do so within 30 days after receiving notice from
the Transferor. If the remaining Members do not notify the Transferor of an
intention to exercise this right of first refusal within the 30 day period, the
right of first refusal with respect to the Offer shall terminate and the
Transferor shall be entitled to consummate the proposed sale of its Units,
provided that such sale is (i) on substantially the same terms as the Offer and
(ii) consummated within 45 days of the expiration of the right of first
refusal. In the event the remaining Members give written notice to the
Transferor of their intention to exercise this right of first refusal and to
purchase all of the Transferor's Units on the terms and conditions stated in
the Offer, the remaining Members shall have the right to designate the time,
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<PAGE> 83
date and place of closing, provided that the date of closing shall be within 45
days after receipt of written notification from the Transferor of the Offer.
If the remaining Members collectively indicate a desire to purchase more Units
than are proposed to be sold, and do not agree among themselves as to an
allocation of the Units, the remaining Member shall have the right to each
purchase their proportionate share of the Units to be sold.
A transferee of an Interest shall have the right to become a Substitute
Member only if: (a) the requirements of this Article VIII, specifically
including, but not limited to, Section 8.4, are met, (b) the transferee
executes an instrument satisfactory as determined by the Board of Managers, not
including the transferee, accepting and adopting the terms and provisions of
this Agreement, and (c) the transferee pays any and all expenses in connection
with admission as a Member.
SECTION 8.7. EFFECT OF A PERMITTED TRANSFER. Unless the parties to a
transfer and the Company expressly agree otherwise, any permitted transfer of a
Member's Interest in the Company will take effect as of the end of the month in
which consummation of the transfer has occurred. Any transferee of an Interest
in the Company shall take the Interest subject to the restrictions on transfer
imposed by this Agreement.
SECTION 8.8. EFFECT OF A VIOLATION. Any attempted or purported transfer
of a Member's Interest in the Company in violation of this Agreement shall be
void and of no force or effect.
Without limiting the preceding sentence in any way, if the transferee of any
such attempted or purported transfer is nonetheless found to have rights in the
subject Interest, the Transferee shall be an Assignee with rights limited to
those set forth in Section 8.4.
ARTICLE IX
DISSOCIATION OF A MEMBER
SECTION 9.1. DISSOCIATION. A person ceases to be a Member upon the
occurrence of any of the following events (each an "Event of Dissociation"):
(a) The Member withdraws from membership in the Company, including any
retirement or resignation from membership in the Company (as opposed to
retirement or resignation merely from employment with the Company or any
position as an officer of the Company);
(b) The Member transfers its Interest, whether or not the Assignee is
admitted as a Substitute Member;
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<PAGE> 84
(c) In the case of a Member who is a Member by virtue of being a trustee
of a trust, the termination of the trust, but not merely the substitution of a
new trustee;
(d) In the case of a Member that is a partnership, limited partnership,
limited liability partnership or limited liability company, the dissolution and
commencement of winding up of the partnership, limited partnership, limited
liability partnership or limited liability company;
(e) In the case of a Member that is a corporation, the dissolution of the
corporation;
(f) In the case of a Member that is an estate, the distribution by the
fiduciary of the estate's entire Interest in the Company;
(g) Bankruptcy of the Member; or
(h) Expulsion of a Member.
SECTION 9.2. RIGHTS OF DISSOCIATING MEMBER. Upon an Event of
Dissociation as to a Member:
(a) If the Event of Dissociation causes a dissolution and winding up of
the Company under Article X, the Member shall be entitled to participate in the
winding up of the Company to the same extent as any other Member, except that
if the Event of Dissociation is a breach of this Agreement, any distributions
to which the Member would have been entitled shall be reduced by any damages
sustained by the Company as a result of the dissolution and winding up; and
(b) If the Event of Dissociation does not cause a dissolution and winding
up of the Company under Article X, the Member shall not be entitled to any
distribution solely by reason of the Member's dissociation, and thereafter
shall only be entitled to participate as an Assignee in the Company. The
Member shall not be entitled to a redemption of the Member's Interest or
otherwise receive the value of the Member's Interest until such time, and in
the manner, provided under Article X for the dissolution and winding up of the
Company.
ARTICLE X
DISSOLUTION AND WINDING UP
SECTION 10.1. DISSOLUTION. The Company shall be dissolved and its
affairs wound up on the first of the following to occur:
(a) A unanimous determination by the Members that the Company shall be
dissolved;
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<PAGE> 85
(b) An Event of Dissociation occurs, unless the remaining Members elect to
continue the business of the Company within 90 days after the remaining Members
are notified in writing of the Event of Dissociation; or
(c) At such earlier time as may be provided by applicable law.
SECTION 10.2. WINDING UP. Upon dissolution, the Members shall proceed to
wind up and liquidate the business and affairs of the Company, and the Company
may only carry on business that is appropriate to wind up and liquidate the
business and affairs of the Company, including the following: (a) collecting
the Company's assets, (b) disposing of properties that will not be distributed
in kind to Members, (c) discharging or making provision for discharging
liabilities, (d) distributing the remaining property among the Members, and (e)
doing every other act necessary to wind up and liquidate the business and
affairs of the Company. The Members shall follow the procedure for disposing
of known claims set forth in the Act and shall publish notice of the
dissolution of the Company pursuant to the Act.
SECTION 10.3. DISTRIBUTION OF ASSETS. Upon the winding up of the
Company, the assets shall be distributed as follows:
(a) To creditors, including Members who are creditors to the extent
permitted by law, in the order of priority as provided by law to satisfy the
liabilities of the Company whether by payment or by the establishment of
adequate reserves, excluding liabilities for distributions to Members pursuant
to Article VII;
(b) To Members to repay any loans to the Company or to satisfy any
liabilities for distributions pursuant to Article VII which remain unpaid;
(c) To Members of the Company in respect of their share of the profits and
other compensation by way of income on their Capital Contributions to the
extent each such Member has a positive balance in his Capital Account as
provided in Treasury Regulation Section 1.704-1(b)(2)(ii)(b)(2); and
(d) To Members of the Company in respect of their Capital Contributions to
the extent each such Member has a positive balance in his Capital Account as
provided in Treasury Regulation Section 1.704-l(b)(2)(ii)(b)(2).
ARTICLE XI
AMENDMENTS
SECTION 11.1. PROPOSAL OF AMENDMENTS. Amendments to the Articles and
this Agreement may be proposed in writing by any Member. If any such proposed
amendment could adversely affect the classification of the Company as a
partnership for federal income tax purposes, the proposed amendment must be
accompanied by an
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<PAGE> 86
opinion of counsel as to the legality and effect on the Company and the
Members. Copies of any amendments proposed to be made pursuant to this
Section 11.1 shall be sent to the Members.
SECTION 11.2. APPROVAL OF AMENDMENTS. A proposed amendment shall be
voted upon at either an annual meeting or a special meeting of the Members duly
called for the purpose of voting on the amendment. Such votes shall be
exercised as provided in Article IV, and such amendment shall be approved by a
unanimous vote of the Members.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. COMPLETE AGREEMENT. This Agreement and the Articles
constitute the complete and exclusive statement of agreement among the Members
with respect to its subject matter. This Agreement and the Articles replace
and supersede all prior agreements by and among the Members or any of them.
This Agreement and the Articles supersede all prior written and oral
statements, and no representation, statement, or condition or warranty not
contained in this Agreement or the Articles will be binding on the Members or
have any force or effect whatsoever.
SECTION 12.2. GOVERNING LAW. This Agreement and the rights of the
parties under this Agreement will be governed by, interpreted, and enforced in
accordance with the laws of the State of Delaware.
SECTION 12.3. BINDING EFFECT: CONFLICTS. Subject to the provisions of
this Agreement relating to transferability, this Agreement will be binding upon
and inure to the benefit of the Members and their respective distributees,
successors and assigns. This Agreement is subject to, and governed by, the Act
and the Articles. In the event of a direct conflict between the provisions of
this Agreement and the mandatory provisions of the Act or the provisions of the
Articles, the provisions of the Act or the Articles, as the case may be, will
be controlling.
SECTION 12.4. HEADINGS: INTERPRETATION. All headings herein are inserted
only for convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this Agreement. The
singular shall include the plural, and the masculine gender shall include the
feminine and neuter, and vice versa, as the context requires.
SECTION 12.5. SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid, unreasonable, or unenforceable under the present or
future laws effective during the term of this Agreement, such provision will be
fully severable; this Agreement will be construed and enforced as if such
illegal, invalid, unreasonable, or
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<PAGE> 87
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid, unreasonable, or unenforceable
provision or by its severance from this Agreement. Furthermore, in lieu of such
illegal, invalid, unreasonable, or unenforceable provision, there will be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid, unreasonable, or unenforceable provision as may be
possible and be legal, valid, reasonable, and enforceable.
SECTION 12.6. MULTIPLE COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which will be deemed an original but all of which
will constitute one and the same instrument. However, in making proof with
respect to this Agreement it will be necessary to produce only one copy hereof
signed by the party to be charged.
SECTION 12.7. ADDITIONAL DOCUMENTS AND ACTS. Each Member agrees to
promptly execute and deliver to the Company such additional documents,
statements of interest and holdings, designations, powers of attorney, and
other instruments, and to perform such additional acts, as the Company may
determine to be necessary, useful or appropriate to complete the organization
of the Company, effectuate, carry out and perform all of the terms, provisions,
and conditions of this Agreement and the transactions contemplated by this
Agreement, and to comply with all applicable laws, rules and regulations.
SECTION 12.8. NO THIRD PARTY BENEFICIARY. This Agreement is made solely
and specifically among and for the benefit of the Members and their respective
successors and assigns subject to the express provisions of this Agreement
relating to successors and assigns. This Agreement is expressly not intended
for the benefit of any creditor of the Company or any other third party. No
creditor or other third party will have any rights, interest, or claims under
the Agreement or be entitled to any benefits under or on account of this
Agreement as a third party beneficiary or otherwise.
SECTION 12.9. NOTICES. Any notice to be given or to be served upon the
Company or any Member in connection with this Agreement must be in writing and
will be deemed to have been given and received when delivered to the address
specified by the party to receive the notice. Such notices will be given to a
Member at the address specified on Exhibit A. Any Member or the Company may,
at any time by giving five days' prior written notice to the other Members and
the Company, designate any other address in substitution of the foregoing
address to which such notice will be given.
SECTION 12.10. TITLE TO COMPANY PROPERTY. Legal title to all property of
the Company will be held and conveyed in the name of the Company.
SECTION 12.11. RELIANCE ON AUTHORITY OF PERSON SIGNING AGREEMENT. In the
event that a Member is not a natural person, neither the Company nor any Member
will
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<PAGE> 88
(a) be required to determine the authority of the individual signing this
Agreement to make any commitment or undertaking on behalf of such Person or to
determine any fact or circumstance bearing upon the existence of the authority
of such individual, or (b) be required to see to the application or
distribution of proceeds paid or credited to individuals signing this Agreement
on behalf of such Entity.
SECTION 12.12. NO REMEDIES EXCLUSIVE. To the extent any remedies are
provided herein for a breach of this Agreement, the Articles or the Act, such
remedies shall not be exclusive of any other remedies the aggrieved party may
have, at law or in equity.
SECTION 12.13. ADVICE OF COUNSEL. Each person signing this Agreement:
(a) understands that this Agreement contains legally binding provisions,
(b) is advised, and has had the opportunity, to consult with that person's
own attorney, and
(c) has either consulted with the person's own attorney or consciously
decided not to consult with the person's own attorney.
SECTION 12.14. OTHER VENTURES. Subject to any separate noncompetition
agreements to which a Member may be a party, each of the Members may engage,
directly or indirectly, in any other business venture or ventures of any nature
and description, independently or with others, including, without limitation,
the motorsports business in all its aspects, which shall include, without
limitation, the ownership, construction, operation, management and development
of motorsports facilities (whether or not competitive with the business of the
Company) and neither the Company nor any of the Members shall have any rights
in and to any such business ventures or the income or profits derived
therefrom. The provisions of this Section 12.14 shall apply to a Member both
during the period of its membership in the Company and after withdrawal from
membership in the Company.
IN WITNESS WHEREOF, the Members have executed this Agreement on the date
set forth opposite their signatures, to be effective on the Effective Date.
Miami Motorsports Joint Venture
Date: By:______________________________________
Homestead Motorsports Joint Venture
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<PAGE> 89
Date: by __________________________________
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<PAGE> 90
SCHEDULE I
TO OPERATING AGREEMENT
(SCHEDULE OF DEFINITIONS)
The terms used in this Agreement with their initial letters capitalized
shall have, unless the context otherwise requires or unless otherwise expressly
provided in this Agreement, the meanings specified in this Schedule I. Any
term used but not defined in this Agreement shall have the meanings set forth
in the Act. The singular shall include the plural, and the masculine gender
shall include the feminine and neuter, and vice versa, as the context requires.
When used in this Agreement, the following terms shall have the meanings set
forth below:
"ACT" means the Delaware Limited Liability Company Act, as the same is
amended from time to time.
"ADDITIONAL MEMBER" means any individual or Entity admitted as a Member
pursuant to Section 3.8.
"ADJUSTED CAPITAL ACCOUNT DEFICIT" means, with respect to any Member, the
deficit balance, if any, in such Member's Capital Account as of the end of the
relevant fiscal year, after giving effect to the following adjustments:
Credit to such Capital Account any amounts which such Member is
obligated to restore pursuant to any provision of this Agreement or is
deemed to be obligated to restore pursuant to the penultimate sentences
of Treasury Regulation Sections 1.7042(g)(1) and 1.704-2(i)(5); and
Debit to such Capital Account the items described in Treasury
Regulation Sections 1.704-1 (b)(2)(ii)(d)(4), 1. 704-1 (b)(2)(ii)(d)(5)
and 1. 704-1 (b)(2)(ii)(d)(6).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Treasury Regulation Section 1.704-l(b)(2)(ii)(d)
and shall be applied in a manner consistent with such intent.
"AFFILIATE" means any individual, partnership, corporation, limited
liability company, trust, or other Entity directly or indirectly, through one
or more intermediaries, controlling, controlled by, or under common control
with a Member. The term "control," as used in the immediately preceding
sentence, means, with respect to a corporation the right to exercise, directly
or indirectly, more than 50% of the voting rights attributable to the
controlled corporation, and, with respect to any individual, partnership, trust
or other Entity, the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies thereof.
Schedule I - 1
<PAGE> 91
"AGREEMENT" means this Operating Agreement of the Company, as originally
executed, including all Schedules and Exhibits, and all of which may be amended
from time to time.
"ASSIGNEE" means any "assignee" as that term is used in the Act, and
includes any transferee or recipient of a Transfer of any Unit or Units, or any
portion thereof.
"AVAILABLE CASH" means all cash funds of the Company on hand from time to
time (other than cash funds obtained as contributions to the capital of the
Company by the Members and cash funds obtained from loans to the Company) after
payment or provision for (i) all operating expenses of the Company as of such
time, (ii) all outstanding and unpaid current obligations of the Company as of
such time, (iii) a working capital reserve and (iv) any other reserves
established by a Majority in Interest of the Members.
"BANKRUPTCY" means, and a Member shall be deemed a "Bankrupt Member" upon,
(i) the entry of a decree or order for relief against the Member by a court of
competent jurisdiction in any involuntary case brought against the Member under
any bankruptcy, insolvency or other similar law (collectively, "Debtor Relief
Laws") generally affecting the rights of creditors and relief of debtors now or
hereafter in effect, (ii) the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or other similar agent under applicable Debtor
Relief Laws for the Member or for any substantial part of its assets or
property, (iii) the ordering of the winding up or liquidation of the Member's
affairs, (iv) the filing of a petition in any such involuntary bankruptcy case,
which petition remains undismissed for a period of 180 days or which is not
dismissed or suspended pursuant to Section 303 of the Federal Bankruptcy Code
(or any corresponding provision of any future United States bankruptcy laws),
(v) the commencement by the Member of a voluntary case under any applicable
Debtor Relief Laws now or hereafter in effect, (vi) the consent by the Member
to the entry of an order for relief in an involuntary case under any such laws
or to the appointment of or the taking of possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar agent under any
applicable Debtor Relief Laws for the Member or for any substantial part of its
assets or property, or (vii) the making by a Member of any general assignment
for the benefit of its creditors.
"CAPITAL ACCOUNT" means the individual accounts established and maintained
pursuant to Section 3.5(a) and in the manner provided by Treasury Regulation
Section 1.704-(b)(2)(iv), as amended from time to time.
"CAPITAL CONTRIBUTION" means the total value of cash and agreed fair
market value of property contributed and agreed to be contributed to the
Company by each Member, as shown on Exhibit A, as the same may be amended from
time to time. Any reference in this Agreement to the Capital Contribution of a
current Member shall include a Capital Contribution previously made by any
prior Member for the interest of
Schedule I - 2
<PAGE> 92
such current Member, reduced by any distribution to such prior Member in return
of "Capital Contribution" as contemplated in this Agreement. Additional Capital
Contributions may be made by a Member only with the consent of a Majority in
Interest of the Members.
"CAPITAL INTEREST" means an interest that would give the holder a share of
the proceeds if the Company's assets were sold at fair market value and then
the proceeds were distributed in a complete liquidation and dissolution of the
Company. A Member's Capital Interest may be calculated by dividing the balance
of the Member's Capital Account by the sum of the balances of all the Members'
Capital Accounts.
"CODE" means the Internal Revenue Code of 1986, as amended. All
references in this Agreement to sections of the Code shall include any
corresponding provision or provisions of any succeeding law.
"COMPANY" means Homestead-Miami Speedway, LLC.
"COMPANY MINIMUM GAIN" has the meaning set forth in Treasury Regulation
Sections 1.704-2(b)(2) and 1.704-2(d) with respect to "partnership minimum
gain," substituting the word "member" for "partner" and "company" for
"partnership" wherever they appear.
"ENTITY" means any association, corporation, general partnership, limited
partnership, limited liability partnership, limited liability company, joint
stock association, joint venture, firm, trust, business trust, cooperative, or
foreign associations of like structure.
"EVENT OF DISSOCIATION" means any of the events listed in Section 9.1 upon
which one ceases to be a Member.
"INTEREST" means the entire ownership interest of a Member in the Company
at any particular time, including the right of such Member to any and all
benefits to which a Member may be entitled as provided in this Agreement and
under the Act, together with the obligations of such Member to comply with all
of the terms and provisions of this Agreement.
"MAJORITY IN INTEREST OF THE MEMBERS" means the Member(s) who hold a
majority of the outstanding Units. "Majority in Interest of the remaining
Members" means those Members holding a majority of the outstanding Units,
excluding the Member in question and that Member's Units. In this regard,
Unit(s) or any portion thereof that are the subject of an effective Transfer to
an Assignee not a Substitute Member shall not be considered outstanding Units.
"MEMBER" OR "MEMBERS" refers to the parties to this Agreement as indicated
on Exhibit A, and any Additional Members or Substitute Members.
Schedule I - 3
<PAGE> 93
"MEMBER NONRECOURSE DEBT" has the meaning set forth in Treasury Regulation
Section 1.704-2(b)(4) with respect to "partner nonrecourse debt," substituting
the word "member" for "partner" and "company" for "partnership" wherever they
appear.
"MEMBER NONRECOURSE DEBT MINIMUM GAIN" means an amount, with respect to
each Member Nonrecourse Debt, equal to the Company Minimum Gain that would
result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Treasury Regulation Section 1.704-2(i)(3).
"MEMBER NONRECOURSE DEDUCTIONS" has the meaning set forth in Treasury
Regulation Sections 1.704-2(i)(1) and 1.704-2(i)(2) with respect to "partner
nonrecourse deductions," substituting the word "member" for "partner" and
"company" for "partnership" wherever they appear.
"NONRECOURSE DEDUCTIONS" has the meaning set forth in Treasury Regulation
Section 1.704-2(b)(1).
"NONRECOURSE LIABILITY" has the meaning set forth in Treasury Regulation
Section 1.7042(b)(3).
"OPERATING AGREEMENT" means this Agreement.
"PERCENTAGE INTEREST" means the percentage obtained by dividing the number
of Units of a Member by the total number of outstanding Units of all Members.
"PRINCIPAL OFFICE" means the principal place of business specified in
Section 2.2.
"PROFITS INTEREST" means an Interest other than a Capital Interest.
"SUBSTITUTE MEMBER" means any individual or entity admitted as a Member
pursuant to Section 8.4.
"TRANSFER" means any "assignment" as that term is used in the Act, and
includes any gift, sale, exchange, assignment, conveyance, alienation or other
transfer, whether voluntary or involuntary, and includes any Transfer to a
receiver, bankruptcy trustee, judgment creditor, lienholder, holder of a
security interest, pledge or other encumbrance, and Transfer upon judicial
order or other legal process (such as a Transfer in connection with divorce
proceedings).
"UNIT" refers to a unit of measurement of a Member's Interest as
established in Section 3.2. Whenever reference is made to "Percentage
Interest, " a Unit may be converted into the same by dividing a Member's number
of Units by the total of all Units outstanding. For voting and other
governance purposes, Unit(s) or any portion thereof that are the subject of an
effective Transfer to an Assignee not a Substitute Member shall not be
considered outstanding Units.
Schedule I - 4
<PAGE> 94
EXHIBIT A
TO OPERATING AGREEMENT
NAMES AND ADDRESSES OF MEMBERS; CAPITAL
CONTRIBUTIONS, AND UNITS OF MEMBERS
(AS OF FEBRUARY _, 1997)
<TABLE>
<CAPTION>
Initial Current Current
Capital Capital Number
Member Contribution Contribution of Units
- ------ ------------ ------------ --------
<S> <C> <C> <C>
Miami Motorsports Joint Venture
One Speedway Boulevard
Homestead, Florida 33015 $4,735,185* -- 100
Homestead Motorsports Joint
Venture
One Speedway Boulevard
Homestead, Florida 33015 $4,735,185* -- 100
</TABLE>
*This amount represents one half of (i) equity transferred by the
Members to the Company as detailed in the Asset Purchase Agreement
dated July __, 1997 to which the Company and the initial Members are
parties and (ii) an additional $600,000 cash contribution.
<PAGE> 95
FIRST REVISED
EXHIBIT A
TO OPERATING AGREEMENT
NAMES AND ADDRESSES OF MEMBERS; CAPITAL
CONTRIBUTIONS, AND UNITS OF MEMBERS
(AS OF JULY __, 1997)
<TABLE>
<CAPTION>
INITIAL CAPITAL CURRENT CAPITAL CURRENT NUMBER OF
MEMBER CONTRIBUTION CONTRIBUTION UNITS
- ------ --------------- --------------- -----------------
<S> <C> <C> <C>
Mr. Rafael A. Sanchez
One Speedway Boulevard
Homestead, Florida 33015 3,250,000 -- 20
Mr. Wayne Huizenga
200 South Andrews Ave., 6th Floor
Ft. Lauderdale, FL 33301 3,250,000 -- 20
Penske Motorsports, Inc.
c/o Penske Corporation
13400 Outer Drive West
Detroit, MI 48239-4001 11,800,000 -- 80
Miami Speedway Corp.
c/o International Speedway Corporation
1801 W. International Speedway Blvd.
Daytona Beach, Florida 32114-1243 11,800,000 -- 80
</TABLE>
<PAGE> 96
TRANSFER OF MEMBERSHIP UNITS
APPROVAL OF ASSIGNEES AS SUBSTITUTE MEMBERS
ACCEPTANCE OF OPERATING AGREEMENT
This Agreement made and entered into on this 23rd day of July, 1997 by and
among Miami Speedway Corp. ("MSC"), Penske Motorsports, Inc. ("PMI"), Homestead
Motorsports Joint Venture ("HMJV"), Miami Motorsports Joint Venture ("MMJV"),
Rafael A. Sanchez ("Sanchez") and Wayne Huizenga ("Huizenga").
RECITAL
HMJV and MMJV are the sole members of Homestead-Miami Speedway, LLC (the
"Company"). HMJV, MMJV and the other parties hereto desire to acknowledge
their consent and agreement to the transactions set forth below.
1. HMJV and MMJV hereby each transfer to MSC a twenty percent
(20%) limited liability company interest in the Company and consent
that upon execution of this document MSC shall be a "Substitute
Member" of the Company as that terms is defined in the Company's
Operating Agreement.
2. HMJV and MMJV hereby each transfer to PMI a twenty percent
(20%) limited liability company interest in the Company and consent
that upon execution of this document PMI shall be a "Substitute
Member" of the Company as that term is defined in the Company's
Operating Agreement.
3. HMJV and MMJV hereby each transfer to Sanchez a five percent
(5%) limited liability company interest in the Company and consent
that upon execution of this document Sanchez shall be a "Substitute
Member" of the Company as that term is defined in the Company's
Operating Agreement.
4. HMJV and MMJV hereby each transfer to Huizenga a five percent
(5%) limited liability company interest in the Company and consent
that upon execution of this document Huizenga shall be a "Substitute
Member" of the Company as that term is defined in the Company's
Operating Agreement.
5. MSC, PMI, Sanchez and Huizenga each hereby accept and adopt
the terms of the Company's Operating Agreement.
6. The parties hereto agree that from the date of this document,
Exhibit A to the Company's Operating Agreement shall be amended as
set forth on the First Revised Exhibit A attached hereto.
<PAGE> 97
IN WITNESS WHEREOF, this document has been executed on the day and year
hereinabove written.
MIAMI SPEEDWAY CORP.
By: /s/ H. Lee Combs
------------------------
PENSKE MOTORSPORTS, INC.
By: /s/ Gregory Penske
------------------------
HOMESTEAD MOTORSPORTS JOINT VENTURE
By: /s/ Rafael A. Sanchez
------------------------
MIAMI MOTORSPORTS JOINT VENTURE
By: /s/ Rafael A. Sanchez
------------------------
/s/ Rafael A. Sanchez
----------------------------
RAFAEL A. SANCHEZ
/s/ Wayne Huizenga
----------------------------
WAYNE HUIZENGA
<PAGE> 98
Exhibit F
SELLERS' CERTIFICATE OF
CONTINUED TRUTH OF REPRESENTATIONS
THE UNDERSIGNED HEREBY CERTIFIES, in his capacity as President of Miami
Motorsports, Inc. (the "Corporation"), a general partner of both Miami
Motorsports Joint Venture and Homestead Motorsports Joint Venture (the
"Sellers"), in connection with the Closing of the Purchase Agreement dated July
__, 1997, by and among Sellers, Homestead-Miami Speedway, LLC (the "Company"),
International Speedway Corporation ("ISC") and Penske Motorsports,Inc. ("PMI")
as follows:
1. The undersigned is the duly elected and qualified President of the
Corporation.
2. The representations and warranties made by the Corporation in the
Agreement to the Company, ISC and PMI are true in all material respects on and
as of the date of this Certificate as though such representations and
warranties were made on and as of this date, except for any changes permitted
by the terms of the Agreement or consented to in writing by the party or
parties to which such representations and warranties were made.
3. Sellers have performed and complied with all terms, conditions,
obligations, agreements and restrictions required by the Agreement to be
performed or complied with by Sellers prior to or on the date of this
Certificate.
Dated: July ____, 1997
MIAMI MOTORSPORTS, INC.
By: ______________________________
Rafael A. Sanchez, President
<PAGE> 99
Exhibit G
[DRAFT OPINION OF SELLERS' COUNSEL]
July __, 1997
International Speedway Corporation
1801 West Speedway Boulevard
Daytona Beach, FL 32114-1243
Penske Motorsports, Inc.
13400 Outer Drive, West
Detroit, MI 48239-4001
Gentlemen:
We have acted as counsel to Miami Motorsports Joint Venture, a Florida
general partnership ("MMJV") and Homestead Motorsports Joint Venture, a Florida
general partnership (HMJV") (MMJV and HMJV jointly referred to as the
"Sellers") and Rafael A. Sanchez ("Sanchez") and Wayne Huizenga ("Huizenga") in
connection with (i) the transfer by Sellers of substantially all their assets
to Homestead-Miami Speedway, LLC (the "Company") and (ii) the sale by MMJV and
HMJV of limited liability company interests in the Company pursuant to a
Purchase Agreement dated July __, 1997 (the "Agreement") among Sellers, the
Company, International Speedway Corporation ("ISC") and Penske Motorsports,
Inc. ("PMI"), Sanchez and Huizenga. This opinion is being delivered pursuant
to the Agreement. All capitalized terms used herein shall, unless otherwise
defined herein, have the meanings set forth in the Agreement.
For purposes of expressing the opinions set forth below, we have examined
originals, or copies certified to our satisfaction, of all records of the
Sellers and the Company and other agreements, certificates and documents and
have made all such investigations of law as we have deemed relevant and
necessary as the basis for such opinions.
For the purposes of this opinion, we have assumed, with respect to all
documents examined by us, the accuracy of the matters contained therein, the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals and the conformity to authentic original documents of all
documents submitted to us as certified, conformed, telecopies or photocopied
copies. We have also relied upon certificates of Sanchez, Huizenga and of
officers of the corporate partners of Sellers with respect to the accuracy of
certain factual matters relevant to the opinions expressed herein. While we
have not performed any independent verification of such
<PAGE> 100
Miami/Homestead
July __, 1997
Page 2
factual matters, other than as set out in this opinion, nothing has come to our
attention during our representation of the Sellers, Sanchez or Huizenga with
respect to the Agreement which leads us to believe that such certificates are
inaccurate.
Based upon the foregoing, we are of the opinion that:
1. The Sellers are general partnerships duly organized and validly
existing under the laws of the State of Florida. Each of the Sellers has full
power and authority to own its properties and carry on its business as it is
now being conducted.
2. The Company is a limited liability company duly organized and validly
existing under the laws of the State of Delaware. The Company has full power
and authority to own property and carry on its business as now being conducted.
3. Each of the Sellers and the Company has full power and authority to
execute, deliver and perform its obligations under the Agreement. The
execution and delivery by Sellers and the Company of the Agreement and each of
the other documents and instruments contemplated therein and the performance by
Sellers and the Company of all the transactions contemplated by the Agreement
have been duly authorized by all requisite partnership and limited liability
company action. Sanchez and Huizenga have duly executed the Agreement in
their individual capacity.
4. The Agreement and the documents, agreements and instruments executed
and delivered in connection with the consummation of the transactions
contemplated by the Agreement by Sellers constitute or will constitute the
legal, valid and binding obligations of the Sellers, enforceable in accordance
with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights. The enforceability of the Sellers' obligations under the
agreement is subject to general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or at law.
The Sellers are not parties to any contract or subject to any other legal
restrictions that would prevent or restrict complete fulfillment of any of the
terms and conditions of the Agreement or compliance with their obligations
thereunder.
5. Except to the extent disclosed in the Agreement, or in any Schedule
thereto, neither the execution and delivery of the Agreement or the documents,
agreements and instruments executed thereunder nor the performance by Sellers
of the various terms and provisions thereof will violate the partnership
agreement of either of the Sellers or, to our best knowledge, result in a
breach or violation of any term or
<PAGE> 101
Miami/Homestead
July __, 1997
Page 3
provision of, or constitute a default (with or without notice, lapse of time or
the happening or occurrence of any other event) under any material indenture,
lease or any other agreement or instrument to which either of the Sellers is a
party, or by which any of their assets and properties may be bound or affected,
or result in a violation of any law, statute, ordinance, rule, regulation,
order, writ, injunction, decree or award of any court or government authority
or body having jurisdiction over Sellers or of their assets and operations.
6. The Agreement and the documents, agreements and instruments executed
and delivered in connection with the consummation of the transactions
contemplated by the Agreement by the Company constitute or will constitute the
legal, valid and binding obligations of the Company, enforceable in accordance
with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights. The enforceability of the Company's obligations under the
agreement is subject to general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or at law.
The Company is not a party to any contract or subject to any other legal
restrictions that would prevent or restrict complete fulfillment of any of the
terms and conditions of the Agreement or compliance with their obligations
thereunder.
7. Except to the extent disclosed in the Agreement, or in any Schedule
thereto, neither the execution and delivery of the Agreement or the documents,
agreements and instruments executed thereunder nor the performance by the
Company of the various terms and provisions thereof will violate the
Certificate of Formation or Operating Agreement of the Company or, to our best
knowledge, result in a breach or violation of any term or provision of, or
constitute a default (with or without notice, lapse of time or the happening or
occurrence of any other event) under any material indenture, lease or any other
agreement or instrument to which the Company is a party, or by which any of its
assets and properties may be bound or affected, or result in a violation of any
law, statute, ordinance, rule, regulation, order, writ, injunction, decree or
award of any court or government authority or body having jurisdiction over the
Company or of it assets and operations.
8. To our knowledge, neither the Sellers nor the Company is in default or
breach under any material contracts, agreements or instruments respecting the
Transferred Assets by which any such entities are bound.
9. To our knowledge, there is no agreement, contract or undertaking of any
kind or nature which prohibits the Sellers, the Company, Huizenga or Sanchez
from
<PAGE> 102
Miami/Homestead
July __, 1997
Page 4
executing the Agreement or any other documents, instruments or agreements
contemplated thereunder, or from performing any of their obligations
thereunder, except to the extent disclosed in the Agreement, or in any Schedule
thereto.
10. To our knowledge, there is no action or proceeding pending or
threatened before any court or other governmental body by any person or public
authority seeking to restrain or prohibit, or to obtain damages or other relief
in connection with, the execution and delivery of the Agreement or consummation
of the transaction contemplated thereby.
11. To our knowledge, except to the extent disclosed in the Agreement or
any Schedule thereto: (a) neither of the Sellers is a party to or threatened
with, any litigation, suit, action, investigation, proceeding or controversy
before any court, administrative agency or governmental authority which, with
respect to the Transferred Assets, might result in any adverse change in its
licenses, business operations, properties or assets, and (b) neither of the
Sellers is in violation of or in default with respect to any judgment, order,
writ, injunction, decree or rule of any court, administrative agency or
governmental authority or in any material respect under any regulation of any
administrative agency or governmental authority.
12. To our knowledge, except to the extent disclosed in the Agreement or
any Schedule thereto: (a) the Company is not a party to or threatened with,
any litigation, suit, action, investigation, proceeding or controversy before
any court, administrative agency or governmental authority which, with respect
to the Transferred Assets, might result in any adverse change in its licenses,
business operations, properties or assets, and (b) the Company is not in
violation of or in default with respect to any judgment, order, writ,
injunction, decree or rule of any court, administrative agency or governmental
authority or in any material respect under any regulation of any administrative
agency or governmental authority.
13. To our knowledge each of the Sellers and the Company have obtained all
consents, authorizations, orders and approvals of, and filings or registrations
with any governmental commission, board or other regulatory body which are
required for or in connection with the execution and delivery of the Agreement
by the Sellers and the Company and the consummation of the transactions
contemplated thereby by the Sellers and the Company.
The phrase "to our knowledge", when used herein, means to our actual
knowledge, after due inquiry.
The opinions expressed herein are based upon the applicable laws, rules
and regulations in effect as of the date hereof, and any change in such laws,
rules or
<PAGE> 103
Miami/Homestead
July __, 1997
Page 5
regulations may affect our opinions. We assume no obligation to advise you of
any changes concerning matters discussed herein, whether or not deemed
material, of which we may hereafter become aware.
We have not been asked, and we do not render any opinion with respect to
any matters except as expressly set forth above. This opinion is given solely
to the Purchaser and is solely for the benefit of ISC, PMI and any other entity
which may
<PAGE> 104
Miami/Homestead
July __, 1997
Page 6
constitute a "Purchaser" under the terms of the Agreement. This opinion is
rendered as of the date first above written.
Very truly yours,
Akerman, Senterfitt & Eidson, P.A.
By:__________________________________
<PAGE> 105
Exhibit H
PURCHASERS' CERTIFICATE OF
CONTINUED TRUTH OF REPRESENTATIONS
(INTERNATIONAL SPEEDWAY CORPORATION)
THE UNDERSIGNED HEREBY CERTIFIES, in his capacity _______ as of
International Speedway Corporation ("ISC"), in connection with the Closing
under the Purchase Agreement (the "Agreement") dated July __, 1997, by and
among Miami Motorsports Joint Venture and Homestead Motorsports Joint Venture
(the "Sellers"), ISC, Homestead-Miami Speedway, LLC (the "Company") and Penske
Motorsports, Inc., , as follows:
1. The undersigned is the duly elected and qualified officer of ISC.
2. The representations and warranties made by ISC are true in all material
respects on and as of the date of this Certificate as though such
representations and warranties were made on and as of this date, except for any
changes permitted by the terms of the Agreement or consented to in writing by
Sellers.
3. ISC has performed and complied with all terms, conditions, obligations,
agreements and restrictions required by the Agreement to be performed or
complied with by ISC prior to or on the date of this Certificate.
Dated: July ____, 1997
INTERNATIONAL SPEEDWAY CORPORATION
By:____________________________
<PAGE> 106
Exhibit H
PURCHASERS' CERTIFICATE OF
CONTINUED TRUTH OF REPRESENTATIONS
(PENSKE MOTORSPORTS, INC.)
THE UNDERSIGNED HEREBY CERTIFIES, in his capacity as ___________ of Penske
Motorsports, Inc. ("PMI"), in connection with the Closing under the Purchase
Agreement (the "Agreement") dated July __, 1997, by and among Miami Motorsports
Joint Venture and Homestead Motorsports Joint Venture (the "Sellers"), PMI,
Homestead-Miami Speedway, LLC (the "Company") and International Speedway
Corporation, as follows:
1. The undersigned is the duly elected and qualified officer of PMI.
2. The representations and warranties made by PMI are true in all material
respects on and as of the date of this Certificate as though such
representations and warranties were made on and as of this date, except for any
changes permitted by the terms of the Agreement or consented to in writing by
Sellers.
3. PMI has performed and complied with all terms, conditions, obligations,
agreements and restrictions required by the Agreement to be performed or
complied with by PMI prior to or on the date of this Certificate.
Dated: July ____, 1997
PENSKE MOTORSPORTS, INC.
By: __________________________
