ADMISSION AND CONTRIBUTION AGREEMENT

EXHIBIT 2.4

ADMISSION AND CONTRIBUTION AGREEMENT

among

CODINA DORAL, INC.,
a Florida corporation,

ARMANDO CODINA

ANA-MARIE CODINA BARLICK
ALEXANDRA MARGARITA CODINA
ANDRIA CODINA MIYARES
AMANDA MARCIA CODINA

and

FLAGLER DORAL, LLC,
a Florida limited liability company

Dated as of January 5, 2006

 

ADMISSION AND CONTRIBUTION AGREEMENT

          This Admission and Contribution Agreement (the “Agreement”) is made as of January 5, 2006 by and among  CODINA DORAL, INC., a Florida corporation (“CD Inc”), ARMANDO CODINA (“Mr. Codina”), ANA-MARIE CODINA BARLICK (“Ana-Marie”), ALEXANDRA MARGARITA CODINA (“Alexandra”), ANDRIA CODINA MIYARES (“Andria”) and AMANDA MARCIA CODINA (“Amanda”) and together with CD Inc, Mr. Codina, Ana-Marie, Alexandra and Andria, each a “Codina Party” and collectively, the “Codina Parties”) and FLAGLER DORAL, LLC, a Florida limited liability company (“Flagler”).

RECITALS:

          A.          CD Inc is the sole general partner and Mr. Codina, Ana-Marie, Alexandra, Andria and Amanda are the only limited partners of Codina Doral, Ltd. (“Partnership”), a Florida limited partnership which exists pursuant to that certain Limited Partnership Agreement of Codina Doral, Ltd. by and among the Codina Parties dated as of April 30, 2004, as amended (“Partnership Agreement”).

          B.          Codina Doral, Ltd. and Doral JV Acquisition Company LLC (“Doral JV”), a Delaware limited liability company, are the only members of CM Doral Development Company LLC, a Delaware limited liability company (“CM Doral”).

          C.          CM Doral has entered into that certain Amended and Restated Option Agreement with Koala Miami Realty Holding Co. Inc., a Delaware corporation (“Koala”), dated August 31, 2005, as amended (“Option Agreement”) pursuant to which CM Doral has the option to acquire approximately 77.59 acres of real property, more particularly described on Exhibit A (“Land”).

          D.          This Agreement contemplates a transaction in which CD Inc. will withdraw as the general partner of the Partnership and its interest will be converted to a limited partnership interest and simultaneously therewith Flagler will be admitted as the general partner of the Partnership.

          IN CONSIDERATION of the covenants and promises herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I
DEFINITIONS

          Section 1.01     Definitions.

                    (a)          Capitalized terms used but not defined herein shall have the respective meanings set forth in the Merger Agreement (as defined below.)   In addition, the following terms, as used herein, have the following meanings:

 

          “Acquisition Proposal” means, other than the transactions contemplated by this Agreement, any offer or proposal by a Third Party for (a) any acquisition or purchase, direct or indirect of any membership interests of either Company, or (b) a merger, consolidation, share exchange, business combination, sale of any portion of the assets of the Companies, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving either Company.

          “Agreement” or “this Agreement” means this Admission and Contribution Agreement by and among CD Inc, Mr. Codina, Ana-Marie, Alexandra, Andria, Amanda and Flagler (including the Exhibits and Schedules hereto) and all amendments hereto made in accordance with the provisions hereof.

          “Amended and Restated Partnership Agreement” means the Amended and Restated Agreement of Limited Partnership of Codina Doral, Ltd., substantially in the form attached hereto as Exhibit B.

          “Approved Loan” has the meaning set forth in Section 5.07 below.

          “Closing” has the meaning set forth in Section 2.02 below.

          “Closing Date” has the meaning set forth in Section 2.02 below.

          “CM Doral” has the meaning set forth in the Recitals above.

          “Companies” means Partnership and CM Doral and either is sometimes referred to herein as a “Company”.

          “Company Material Adverse Effect” means a material adverse change in or effect on the Codina Parties’ ability to perform their obligations under this Agreement or on the condition (financial or otherwise), results of operations, properties, assets, liabilities, business or prospects of either Company or the Land, excluding any effect resulting from any change in economic, capital market, real estate industry or financial conditions generally in the United States.

          “Days” has the meaning of being successive calendar days unless otherwise specified.

          “Doral JV” has the meaning set forth in the Recitals above.

          “Flagler” has the meaning set forth in the preface above.

          “Flagler Material Adverse Effect” means a material adverse change in or effect on the ability of Flagler to perform its obligations under this Agreement or on the condition (financial or otherwise), results of operations, properties, assets, liabilities, business or prospects of Flagler and its Subsidiaries taken as a whole, excluding any effect resulting from any change in economic, capital market, real estate industry or financial conditions generally in the United States.

 

          “Knowledge” means, with respect to the Codina Parties, the actual knowledge of Mr. Codina and any of the persons listed on Section 1.1.(a) of the Codina Parties Disclosure Schedule attached hereto (the “Codina Parties Disclosure Schedule.”)

          “Land” has the meaning set forth in the Recitals above.

          “Liability” means any liability or obligation (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.

          “Merger Agreement” means that certain Agreement and Plan of Merger and Contribution of even date herewith among Florida East Coast Industries, Inc. (“FECI”), Foxx Holdings, Inc., Foxx Merger Sub, Inc., C/Countyline, LLC, C/WDL, Ltd. and Mr. Codina.

          “Option Agreement” has the meaning set forth in the Recitals above.

          “Promissory Note” has the meaning provided in Section 7.03(d).

          “Security Interest” or “Encumbrance” means any mortgage, pledge, claim, lien (including environmental and tax liens), encumbrance, or other security interest, other than liens for Taxes not yet due and payable.

          Section 1.02     Other Definitional and Interpretative Provisions.  The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  References to Articles, Sections, Annexes and Exhibits are to Articles, Sections, Annexes and Exhibits of this Agreement, and all references to Schedules are to corresponding sections of the applicable Disclosure Schedule, in each case unless otherwise specified. Any capitalized terms used in any Annex, Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute are to that statute as amended from time to time, and to the rules and regulations promulgated thereunder, and, in each case, to any successor statute, rules or regulations thereto. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

 

ARTICLE II
ADMISSION AND CONTRIBUTION

          Section 2.01     Admission and Contribution.  Upon satisfaction of the conditions set forth herein and in exchange for an interest in the Partnership having the rights, preferences and obligations with respect to Flagler set forth in the Amended and Restated Partnership Agreement, at the Closing, Flagler shall contribute to the Partnership the sum of $1,000 and the outstanding amount of the Approved Loan as of such date and shall receive a credit to its capital account established under the Amended and Restated Partnership Agreement in an amount equal to the sum of $1,000 and the outstanding amount of the Approved Loan as of such date.  Notwithstanding anything herein or in the Amended and Restated Partnership Agreement to the contrary, the Partnership shall use a portion of the Flagler capital contribution to promptly repay the Approved Loan.

          Section 2.02     Closing.  Subject to the satisfaction of the terms and conditions of this Agreement, the closing of the admission and contribution (the “Closing”) shall occur simultaneously with the closing under the Merger Agreement on the date (the “Closing Date”) and location as set forth therein.  At the Closing, the parties to this Agreement shall take the following actions, which deliveries and actions shall be deemed to have occurred simultaneously and to constitute the Closing hereunder:

                    (a)          CD Inc and Flagler shall execute and cause to be filed with the Secretary of State of Florida the Amended and Restated Certificate of Limited Partnership in the form attached hereto as Exhibit C.

                    (b)          Fox shall contribute $1,000 to the capital of the Partnership and Flagler and each of the Codina Parties shall execute and deliver the Amended and Restated Partnership Agreement.

                    (c)          Codina Parties and Flagler shall deliver all other closing documents required under this Agreement or otherwise reasonably necessary to consummate the transaction.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CODINA PARTIES

          Except as set forth in the corresponding section of the Codina Parties Disclosure Schedule, CD Inc, Mr. Codina, Ana-Marie, Alexandra, Andria and Amanda, jointly and severally, represent and warrant to Flagler, as of the date hereof and as of the Closing Date, that:

          Section 3.01     Corporate Existence and Power. CD Inc is a Florida corporation, and each of Partnership and CM Doral is or, at the Closing will be, a limited partnership or limited liability company, duly formed, validly existing and in good standing under the laws of the States of Florida and Delaware, respectively.  Each Company has, or at the Closing will have, all limited liability company or partnership powers required to carry on its business as now or intended to be conducted. Each Company is or, at the Closing, will be duly qualified to do business as a foreign corporation or entity and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. True and complete copies of articles of formation, operating agreements and other organizational documents, as applicable, of each Company have been or prior to the Closing will be delivered or made available to Flagler.

 

          Section 3.02     Authorization.  The execution, delivery and performance by CD Inc of this Agreement and each of the other documents to which it a party (“Transaction Documents”), and the consummation by the Codina Parties of transactions contemplated hereby and thereby are within CD Inc’s corporate powers and have been duly authorized by all necessary company action on the part of CD Inc.  This Agreement constitutes a valid and binding agreement of the Codina Parties, as applicable, enforceable against each such Person in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, reorganization, insolvency, moratorium and other similar Laws of general application from time to time in effect affecting creditors’ rights generally, (ii) by general principles of equity, and (iii) the power of a court to deny enforcement of remedies based upon public policy.

          Section 3.03     Governmental Authorization. Except as set forth in Section 3.03 of the Codina Parties Disclosure Schedule, the execution, delivery and performance by the Codina Parties of this Agreement and the consummation by the Codina Parties of the transactions contemplated hereby require no action by, or filing with, any federal, state or local governmental body, agency, official or authority (each a “Governmental Entity”).

          Section 3.04     Non-contravention. The execution, delivery and performance by the Codina Parties of this Agreement and the consummation by the Codina Parties of the transactions contemplated hereby do not and will not (a) contravene, conflict with, or result in any violation or breach of any provision of the certificate of limited partnership, partnership agreement or other organizational documents of CD Inc, (b) assuming that all actions and filings set forth in Section 3.03 of the Codina Parties Disclosure Schedule have been taken or made, contravene, conflict with or result in a violation or breach of any provision of any applicable Law, (c) assuming that all consents set forth in Section 3.04 of the Codina Parties Disclosure Schedule have been obtained, require any consent under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default under, or cause or permit the termination, cancellation, acceleration or other material change of any right or obligation or the loss of any benefit to which either Company is or at Closing will be entitled under, any provision of any Contract material to such Company or any Permit affecting, or relating in any way to, the assets or business of the Company, or (d) result in the creation or imposition of any Lien on any asset either the Company.

          Section 3.05     Capitalization of the Companies.  The Codina Parties are the only partners of the Partnership.  The Partnership and Doral JV are the only members of CM Doral and except as set forth on the Codina Parties’ Disclosure Schedule, the Partnership’s membership interest in CM Doral is or at Closing will be free and clear of all liens and encumbrances, and is or at Closing will not be subject to preemptive rights created by statute, either Company’s limited partnership agreement or limited liability company agreement or any agreement to which such entity is a party or by which such entity is bound.  There are no options, warrants or other rights or arrangements to acquire from the Codina Parties or either Company, or other obligations or commitments of the Codina Parties or either Company to issue, any membership or partnership interests in such Company.  Except for CM Doral in the case of the Partnership, neither Company has or at Closing will have any Subsidiaries.

 

          Section 3.06     Assets; Prior Business.  The Option Agreement and any real property acquired pursuant thereto at Closing will constitute the only assets of CM Doral.  Since its inception, CM Doral has not or will  not have (i) engaged in any business other than acquiring and holding the Option Agreement and any real property acquired pursuant thereto and planning, permitting, and pre-acquisition development of the Land or (ii) had any employees.  The membership interest in CM Doral at Closing will constitute the only asset of the Partnership.  Since its inception, the Partnership has not or will not have (i) engaged in any business other than acquiring and holding the membership interest in CM Doral or (ii) had any employees.

          Section 3.07     Financial Statements.  Section 3.07 of the Codina Parties Disclosure Schedule sets forth an unaudited balance sheet and income statement for each of the Companies as of December 31, 2004 (the “Financials”) and unaudited interim balance sheets and income statements as of and for the nine months ended September 30, 2004 and 2005, for each of the Companies (the “Interim Financials”).  Each of the Financials and each of the Interim Financials fairly present, in conformity with GAAP applied on a consistent basis (except as may be indicated in the notes thereto), the financial position of the Companies as of the dates thereof and the results of operations for the periods then ended (subject to normal year-end adjustments in the case of the Interim Financials).

          Section 3.08     Absence of Certain Changes.  Except as set forth in Section 3.08 of the Codina Parties Disclosure Schedule, between December 31, 2004 and the date of this Agreement, (a) the business of both of the Companies has been conducted in the ordinary course, consistent with past practices, (b) there has not been any event, change or development that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect and (c) except in the ordinary course of business, there has not been any action or event, nor any authorization, commitment or agreement by either of the Companies with respect to any action or event, that if taken or if it occurred after the date hereof would be prohibited by Section 5.01.

          Section 3.09     No Undisclosed Liabilities.

          (i) Except as set forth on Section 3.09 of the Codina Parties Disclosure Schedule, there are no, and (ii) at Closing, other than Liabilities incurred in the ordinary course of business pursuant to the limited liability agreement of CM Doral, there will not be, any Liabilities or obligations of either Company whatsoever, and there is no existing condition, situation or set of circumstances that could reasonably be expected to result in such a liability, other than Liabilities incurred pursuant to this Agreement.

 

          Section 3.10     Litigation.

                    (a)          There is no Proceeding pending or, to the Knowledge of the Codina Parties, threatened against the Companies or with respect to the Land.  Neither of the Companies nor the Land is subject to any outstanding Judgment.

                    (b)          To the Knowledge of the Codina Parties, there is no investigation or review by any Governmental Entity with respect to the Companies or the Land actually pending or threatened, nor has any Governmental Entity indicated to the Companies or any of the Codina Parties’ Affiliates in writing or, to the Knowledge of the Codina Parties, verbally, an intention to conduct the same.

          Section 3.11     Compliance With Applicable Law.

                    (a)          Each Company and its businesses and operations are, and since its inception have been, in compliance with all Laws applicable to it.  Except as disclosed in Section 3.11 of the Codina Parties Disclosure Schedule, neither of the Companies has received any written notice since its inception (i) of any administrative, civil or criminal investigation or audit (other than Tax audits) by any Governmental Entity relating to it or (ii) from any Governmental Entity alleging that it is not in compliance in any material respect with any applicable Law.

                    (b)          Except as set forth in Section 3.11 of the Codina Parties Disclosure Schedule, each Company has or at Closing will have in effect all approvals, authorizations, certificates, filings, franchises, licenses, variances, exemptions, notices, permits and rights of or with all Governmental Entities (“Permits”) necessary for it to own, lease, if applicable, or otherwise hold and to operate its property.  Since its inception, there have occurred no events which (with or without notice or lapse of time or both) would constitute defaults under, violations of, or events giving to others any right of termination, amendment or cancellation, with or without notice or lapse of time or both, of, any such Permit. The transactions contemplated hereby would not reasonably be expected to cause the revocation or cancellation (with or without notice or lapse of time or both) of any such Permit.

          Section 3.12     Contracts.  Except as set forth on Section 3.12 of the Codina Parties Disclosure Schedule, as of the date of this Agreement, neither Company is and at Closing will be, a party to any Contract. The Codina Parties have provided or made available to Flagler a true and correct copy of each Contract.  Neither Company, nor, to the Knowledge of the Codina Parties, any other party thereto, is in violation of or in default under (nor does there exist any condition, and no event or circumstances have occurred, which upon the passage of time or the giving of notice would cause a violation of, default under, the right to exercise any remedy under or to accelerate the maturity or performance of, or to cancel, terminate or modify) any Contract. Each Contract is a valid and binding agreement of the Company which is a party to such Contract, and, to the Knowledge of the Codina Parties, every other party thereto, and is in full force and effect, enforceable against the applicable Company party thereto, and, to the Knowledge of the Codina Parties, every other party thereto except as such enforceability may be limited by (i) bankruptcy, reorganization, insolvency, moratorium and other similar Laws of general application from time to time in effect affecting creditors’ rights generally, (ii) by general principles of equity and (iii) the power of a court to deny enforcement of remedies generally based upon public policy.

 

          Section 3.13     Taxes.

                    (a)          All material Tax Returns required to be filed on or before the Closing Date with any Taxing Authority by, or on behalf of, either Company have or will have been filed when due in accordance with all applicable Laws (taking into account any extension of time which has been granted within which to file), and all such material Tax Returns are, or shall be at the time of filing, true and complete in all material respects.

                    (b)          Each Company has or prior to Closing will have paid (or had paid on its behalf) or has or will have withheld and remitted to the appropriate Taxing Authority all Taxes due and payable on or before the Closing Date, or, where payment is not yet due, has established (or has had established on its behalf and for its sole benefit and recourse) in accordance with GAAP an adequate accrual for all material Taxes through the end of the last period for which the Company ordinarily records items on its books.

                    (c)          Intentionally left blank.

                    (d)          There are no material liens for Taxes on any of the assets of either Company and at the Closing no such lien will exist as to either Company.

                    (e)          (i) No federal, state, local or foreign audits, examinations, investigations or other Proceedings are pending or, to the Knowledge of the Codina Parties, threatened with regard to any Taxes or Tax Returns of either Company and no written notice has been received from any Taxing Authority of the expected commencement of such a proceeding; (ii) neither the Codina Parties nor either Company has received a ruling from any Taxing Authority relating to Taxes; (iii) neither the Codina Parties nor either Company is a party to or bound by any written agreement with any Taxing Authority; (iv) there is currently no effective agreement or other document extending, or having the effect of extending, the period of assessment or collection of any Taxes with respect to the Companies; (v) neither Company has not been a member of an affiliated, consolidated, combined or unitary group or is party to any Tax Sharing Agreement or to any other agreement or arrangement referred to in clause (ii) or (iii) of the definition of “Tax”; and (vi) no amount of the type described in clause (ii) or (iii) of the definition of “Tax” is currently payable by either company and neither Company has entered into any agreement or arrangement with any Taxing Authority with regard to the Tax liability of either Company affecting any Tax period for which the applicable statute of limitations, after giving effect to extensions or waivers, has not expired.

                    (f)          Neither Company is, or ever has been, engaged in a trade or business in any jurisdiction other than the United States.  Neither Company has ever had a permanent establishment, permanent representative or other taxable presence in any jurisdiction other than the United States. Neither Company constitutes or has ever constituted a permanent establishment or permanent representative of another person.

 

                    (g)          Neither Company will be required to include any item of income in, or exclude any item of deduction from, taxable income for any Post-Closing Tax Period as a result of any (A) change in method of accounting for a Pre-Closing Tax Period, (b) installment sale or open transaction or intercompany transaction made on or before the Closing Date, or (C) prepaid amount received on or prior to the Closing Date.

                    (h)          Neither Company owns or has, at any time, ever owned, property that (i) is “tax-exempt use property” within the meaning of Section 168(h) of the Code or (ii) is “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.

                    (i)          Neither Company has entered into, engaged in or participated in any “reportable transaction” as described in Section 1.6011-4(b) of the Treasury Regulations.

                    (j)          Neither Company has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code in the five years prior to the date of this Agreement.

          Section 3.14     Employee Benefits Plans.  Neither Company is or has ever been a party to any “employee benefit plan,” as defined in Section 3(3) of ERISA, or any other Contract or plan providing compensation or benefits of any nature to any employee.

          Section 3.15     Insurance Policies.

                    (a)          Section 3.15(a) of the Codina Parties Disclosure Schedule lists all material insurance policies and fidelity bonds covering the Companies and each such insurance policy and fidelity bond is in full force and effect. Except as set forth in Section 3.15(a) of the Codina Parties Disclosure Schedule, there is no claim involving more than $100,000 by either Company pending under any of such policies or bonds as to which either Company has been notified that coverage has been questioned, denied or disputed by the underwriters of such policies or bonds. All premiums due and payable under all such policies and bonds have been paid, and each Company is otherwise in compliance in all material respects with the terms of such policies and bonds. The Codina Parties do not have any Knowledge of threatened termination of, or material premium increase with respect to, any of such policies.

                    (b)          Section 3.15(b)  of the Disclosure Schedule identifies each insurance claim involving more than $100,000 made by either Company since its inception and the date of this Agreement.

          Section 3.16     Environmental Matters.  Except as set forth in Section 3.16 of the Codina Parties Disclosure Schedules or the reports listed on Section 3.16 of the Codina Parties Disclosure Schedules:

 

                    (a)          To the Codina Parties’ Knowledge, each Company and the Land is, and at all times has been, in full compliance with Environmental Laws and Environmental Permits, and is not, and has not been in violation of or liable under, any Environmental Law or Environmental Permit.  None of the Codina Parties have any basis to expect, nor have any of them or any other Person for whose conduct they are or may be held to be responsible received, any actual or threatened order, notice, or other communication from (i) any Governmental Entity or private citizen acting in the public interest, or (ii) the current or prior owner or operator of the Land, of any actual or potential violation or failure to comply with any Environmental Law, or of any actual or threatened obligation to undertake or bear the cost of any Environmental Liabilities with respect to the Land or any other properties or assets (whether real, personal, or mixed) in which either of the Companies has had an interest, or with respect to any real property at or to which Hazardous Materials were generated, manufactured, refined, transferred, imported, used, or processed by the  Companies.

                    (b)          There are no pending or, to the Knowledge of the Codina Parties, threatened claims or encumbrances, resulting from any Environmental Liabilities or arising under or pursuant to any Environmental Law, with respect to or affecting the Land or any other properties and assets (whether real, personal, or mixed) in which Companies have or had an interest.

                    (c)          None of the Codina Parties and the Companies has received, any citation, directive, inquiry, notice (of which the Codina Parties are aware), order, summons, warning, or other communication that relates to Hazardous Materials, or any alleged, actual, or potential violation or failure to comply with any Environmental Law, or of any alleged, actual, or potential obligation to undertake or bear the cost of any Environmental Liabilities with respect to the Land or any other properties or assets (whether real, personal, or mixed) in which either of the Companies had an interest, or with respect to any property or facility to which Hazardous Materials generated, manufactured, refined, transferred, imported, used, or processed by any of the Codina Parties or either of the Companies have, or any other Person for whose conduct they are or may be held responsible, have been transported, treated, stored, handled, transferred, disposed, recycled, or received.

                    (d)          To the Codina Parties’ Knowledge, none of the Codina Parties and the Companies has any Environmental Liabilities with respect to the Land or with respect to any other properties and assets (whether real, personal, or mixed) in which any of them (or any predecessor), have or had an interest, or to the Knowledge of the Codina Parties at any property geologically or hydrologically adjoining the Land or any such other property or assets.

                    (e)          To Codina Parties’ Knowledge, there are no Hazardous Materials present on or in the environment at the Land or, to the Knowledge of the Codina Parties, at any geologically or hydrologically adjoining property, including any Hazardous Materials contained in barrels, above or underground storage tanks, landfills, land deposits, dumps, equipment (whether moveable or fixed) or other containers, either temporary or permanent, and deposited or located in land, water, sumps, or any other part of the Land or to the Knowledge of Codina Parties, such adjoining property, or incorporated into any structure therein or thereon.  None of the Codina Parties, the Companies and their Affiliates has permitted or conducted, or is aware of, any Hazardous Activity conducted with respect to the Land or any other properties or assets (whether real, personal, or mixed) in which any of them has or had an interest.

 

                    (f)          To Codina Parties’ Knowledge, there has been no Release or, to the Knowledge of Codina Parties, threat of Release, of any Hazardous Materials at or from the Land or at any other locations where any Hazardous Materials were generated, manufactured, refined, transferred, produced, imported, used, or processed from or by the Land, or from or by any other properties and assets (whether real, personal, or mixed) in which either of the Companies has or had an interest, or any geologically or hydrologically adjoining property, whether by the Codina Parties, the Companies, or any other Person.

                    (g)          The Codina Parties have delivered or made available to Flagler true and complete copies and results of any reports, studies, analyses, tests, or monitoring possessed or initiated by any of the Codina Parties or their Affiliates pertaining to Hazardous Materials or Hazardous Activities in, on, or under the Land, or concerning compliance by the Codina Parties, the Companies or any of the Codina Parties’ Affiliates with Environmental Laws.

          Section 3.17     Properties.

                    (a)          The Partnership has no assets other than a de minimus amount of cash as of December 31, 2005 and the membership interest in CM Doral.  The Partnership has good and marketable title to, the membership interest in CM Doral, free and clear of all Encumbrances.  CM Doral has no assets other than cash and the Option Agreement.  CM Doral owns the Option Agreement free and clear of all Encumbrances other than the pledge of such interest to Doral JV to secure the repayment of the Promissory Note.

                    (b)          Exhibit A sets forth a correct legal description of the Land and lists the uses or projected uses of the Land.

                    (c)          As of the date hereof, the Land has the land use entitlements and zoning set forth on Schedule 3.17(c) of the Codina Parties Disclosure Schedule.  As of the date hereof, applications have been made for the Permits set forth on Section 3.17(c) of the Codina Parties Disclosure Schedule. 

                    (d)          To the Knowledge of the Codina Parties, no fact or condition exists which would result in the termination of access to any of the Land or the discontinuation of necessary sewer, water, electric, telephone or other utilities or services to any of the Land.

          Section 3.18     Finders’ Fees.  There is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Codina Parties or the Company who might be entitled to any fee or commission from Codina Parties or the Companies in connection with the transactions contemplated by this Agreement.

 

          Section 3.19     Completion of Certain Transactions; Certain Consents.  On or before the date of this Agreement the Codina Parties have received written consent to the transactions contemplated hereby from Doral JV and Koala.

          Section 3.20     Capital Requirements.  Except as set forth in Section 3.20 of the Codina Parties Disclosure Schedule, there are no outstanding capital calls or payments currently due pursuant to other requirements to provide any debt or equity to the Companies.  No Codina Entity is or will be required to pay any amounts (whether through capital contributions, member loans or otherwise) to CM Doral directly or indirectly to fund development incentive advance payments to any other Codina Entity.

          Section 3.21     Disclosure.  To the Knowledge of Codina Parties, all documents, Contracts, instruments, certificates, notices, consents, affidavits, letters, schedules (including Schedules to this Agreement), and exhibits delivered or made available by or on behalf of the Codina Parties or either Company in connection with this Agreement and the transactions contemplated hereby are accurate, complete and authentic in all material respects (excluding projections and forecasts).  No (i) representation or warranty of the Codina Parties contained in this Agreement, and (ii) no closing certificate furnished by or on behalf of the Codina Parties or either Company to Flagler pursuant to this Agreement contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements made, in the context in which made, not materially false or misleading.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF FLAGLER

          Except as set forth in the Flagler Disclosure Schedule attached hereto (the “Flagler Disclosure Schedule”), Flagler represents and warrants to the Codina Parties, as of the date hereof and as of the Closing Date that:

          Section 4.01     Corporate Existence and Power. Flagler is a limited liability company duly organized, incorporated, validly existing and in good standing under the laws of the State of Florida and has all corporate powers required to carry on its business as now conducted. Flagler is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not, individually or in the aggregate, reasonably be expected to have a Flagler Material Adverse Effect.

          Section 4.02     Corporate Authorization. The execution, delivery and performance by Flagler of this Agreement and each of the other Transaction Documents to which it is a party and the consummation by Flagler of the transactions contemplated hereby and thereby are within the powers of Flagler and have been duly authorized by all necessary limited liability company action on the part of Flagler.  This Agreement and each of the other Transaction Documents to which it is a party constitutes a valid and binding agreement of Flagler, enforceable against it in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, reorganization, insolvency, moratorium and other similar Laws of general application from time to time in effect affecting creditors’ rights generally, (ii)  by general principles of equity and (iii) the power of a court to deny enforcement of remedies generally based upon public policy.

 

          Section 4.03     Governmental Authorization. Except as set forth in Section 4.03 of the Flagler Disclosure Schedule, the execution, delivery and performance by Flagler of this Agreement and each of the other Transaction Documents to which it is a party and the consummation by Flagler of the transactions contemplated hereby and thereby require no action by, or filing with, any Governmental Entity, other than any actions or filings the absence of which would not, individually or in the aggregate, reasonably be expected to have a Flagler Material Adverse Effect.

          Section 4.04     Non-contravention. The execution, delivery and performance by Flagler of this Agreement and each of the other Transaction Documents to which it is a party and the consummation by Flagler of the transactions contemplated hereby and thereby do not and will not (a) contravene, conflict with, or result in any violation or breach of any provision of the articles of formation or limited liability company agreement of Flagler, (b) assuming that all actions and filings set forth in Section 4.03 of the Flagler Disclosure Schedule have been taken or made, contravene, conflict with or result in a violation or breach of any provision of any applicable Law, (c) assuming that all consents set forth in Section 4.04 of the Flagler Disclosure Schedule have been obtained, require any consent under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default under, or cause or permit the termination, cancellation, acceleration or other material change of any right or obligation or the loss of any benefit to which Flagler or any of its Subsidiaries is entitled under any provision of any Contract material to Flagler or any of their Subsidiaries or any Permit affecting, or relating in any way to, the assets or business of Flagler and its Subsidiaries or (d) result in the creation or imposition of any Lien on any asset of Flagler or any of its Subsidiaries.

          Section 4.05     Finders’ Fees. Except for Morgan Stanley & Co. Incorporated, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Flagler or any of its Affiliates who might be entitled to any fee or commission from Flagler or any of its Affiliates in connection with the transactions contemplated by this Agreement.

ARTICLE V
COVENANTS OF CODINA PARTIES

          Section 5.01     Conduct of Business of the Company. Except for matters permitted or contemplated by this Agreement, set forth on Section 5.01 of the Codina Disclosure Schedule or as required by applicable Law, unless Flagler otherwise agrees in writing, from the date of this Agreement to the Closing, the Codina Parties shall cause the Partnership to conduct its business in the ordinary course of business consistent with past practices.  In addition, and without limiting the generality of the foregoing, except for matters permitted or contemplated by this Agreement, set forth on Section 5.01 of the Codina Parties Disclosure Schedule or required by applicable Law, from the date of this Agreement to the Closing, the Codina Parties shall not permit the Partnership to do take any of the following without the prior written consent of Flagler, such consent not to be unreasonably withheld or delayed or conditioned:

 

                    (a)          (i) declare, set aside or make any distributions (whether in cash, stock, property or otherwise) in respect of, or enter into any agreement with respect to the voting of, any membership interests in the Partnership; (ii) split, combine or reclassify any of the partnership interests in the Partnership; (iii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, partnership interests in the Partnership; or (iv) purchase, redeem or otherwise acquire any membership interests in the Partnership or any other securities thereof or any rights, options, warrants or calls to acquire any such securities;

                    (b)          issue, deliver, sell, grant, pledge, transfer or otherwise encumber or dispose of or subject to any Lien (i) any of the Partnership’s membership interests in CM Doral, (ii) any of its other voting securities, (iii) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such membership interests or voting securities or convertible or exchangeable securities or (iv) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;

                    (c)          amend its organizational documents;

                    (d)          acquire any stock, other equity interest or assets (including real property) of any other Person (in connection with a purchase of such Person’s business whether in whole or in part), whether by purchase of stock, purchase of assets, merger, consolidation, or otherwise;

                    (e)          pledge, transfer, sell, lease, license, otherwise dispose of or subject to any Lien, any of the Land;

                    (f)          enter into any Contract or incur any Liability whatsoever or (ii) make any loans, advances or capital contributions to, or investments in, any other Person;