1
Exhibit 10.11
CLEVELAND INDIANS
JUNE 28, 1996
AMENDMENT AND CONFIRMATION OF TRANSFER AGREEMENT
------------------------------------------------
This AMENDMENT AND CONFIRMATION OF TRANSFER AGREEMENT is dated as of
June 28, 1996, by and between Cleveland Indians Baseball Company, Limited
Partnership, an Ohio limited partnership (the "Transferor"), and Indians Club
Trust, a Delaware business trust (the "Transferee"), and amends and confirms
that certain Transfer Agreement dated as of May 22, 1992 between the Transferor
and the Transferee (as amended by Amendment No. 1 thereto dated as of December
20, 1993, and as further amended from time to time, the "Transfer Agreement").
Capitalized terms used herein and not otherwise defined shall have the same
meanings herein as in the Revised Annex A referred to below.
W I T N E S S E H:
------------------
WHEREAS, by execution of the Transfer Agreement and the Assignment
dated the date thereof (the "Original Assignment"), the Transferor has
bargained, sold, transferred, assigned, set over and otherwise conveyed to the
Transferee the Rights and Revenues; and
WHEREAS, concurrently with the execution of the Transfer Agreement and
the Original Assignment, the Transferee incurred certain indebtedness for
borrowed money (the "Existing Indebtedness") and, in connection therewith,
granted certain liens on the Rights and Revenues as collateral security for such
Existing Indebtedness; and
WHEREAS, as of the date hereof, the Transferee and certain other
parties thereto are entering into the Club Trust Credit Agreement and the MLB
Credit Agreement pursuant to which the Banks will make certain loans for the
benefit of the Transferee (collectively, the "MLB Credit Agreement Loans"),
certain proceeds of which MLB Credit Agreement Loans will be used by the
Transferee to refinance the Existing Indebtedness; and
WHEREAS, the Transferee and the MLB Trust have entered into the MLB
Pledge and Security Agreement dated the date hereof pursuant to which, among
other things, the Transferee has granted to the Administrative Agent for the
benefit of the Banks a lien on the Rights and Revenues, as such terms are
defined in Annex A attached to the MLB Credit Agreement (such Annex A attached
to the MLB Credit Agreement being referred to herein as the "Revised Annex A"),
as collateral security for the MLB Credit Agreement Loans; and
WHEREAS, it is a condition precedent to the obligations of the Banks to
enter into the Club Trust Credit Agreement and the MLB Credit Agreement, and to
make the MLB
2
Credit Agreement Loans for the benefit of the Transferee pursuant thereto, that
the Transferor execute this Amendment and Confirmation of Transfer Agreement and
the form of Confirmatory Assignment attached hereto as Exhibit A, and deliver
certain other documents in the forms attached hereto;
NOW THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. ACKNOWLEDGEMENT OF MLB CREDIT AGREEMENT AND MLB PLEDGE AND SECURITY
AGREEMENT; ASSIGNMENT. The Transferor acknowledges that, as of the date hereof,
the Transferee, the Banks and the other parties thereto have entered into the
MLB Credit Agreement and MLB Pledge and Security Agreement. The Transferor
acknowledges that the Banks have been induced to enter into said Agreements by,
among other things, (i) the representations, warranties and covenants of the
Transferor set forth in the Transfer Agreement and in this Amendment and
Confirmation thereof and (ii) the liens on the Rights and Revenues (as such
terms are defined in the Revised Annex A) granted to the Administrative Agent
for the benefit of the Banks by the Transferee pursuant to the MLB Pledge and
Security Agreement. The Transferor has reviewed the Revised Annex A to the MLB
Credit Agreement, and is familiar with the definitional provisions contained
therein. It is the intention of the Transferor and the Transferee that all
Rights and Revenues (as such terms are defined in the Revised Annex A) were
bargained, sold, transferred, assigned, set over and otherwise conveyed from the
Transferor to the Transferee pursuant to the Transfer Agreement. Accordingly, by
way of confirming such transfer and transferring any assets constituting Rights
and Revenues (as defined in the Revised Annex A) which were not transferred
pursuant to the Transfer Agreement and the Original Assignment, the Transferor
and the Transferee will execute, at or before the Closing, a Confirmatory
Assignment in the form of Exhibit A hereto.
2. CONFIRMATION OF REPRESENTATIONS AND WARRANTIES OF TRANSFEREE AND
TRANSFEROR. The Transferee confirms that the representations and warranties set
forth in Section 3.01 of the Transfer Agreement are true and correct in all
material respects as of the date hereof. The Transferor confirms that the
representations and warranties set forth in Section 3.02 of the Transfer
Agreement and the information contained in Schedule 3.02(a)(x) as amended on the
date hereof is true and correct in all material respects as of the date hereof
except for the representations and warranties in Sections 3.02(b)(iv), (v), (vi)
and (vii) which were true and correct in all material respects as of May 20,
1992.
3. AMENDMENTS TO TRANSFER AGREEMENT. (a) The Transfer Agreement is
hereby amended by (i) deleting Exhibits A through E attached to the Transfer
Agreement and substituting therefor the forms of Exhibits A through E attached
hereto, respectively and (ii) deleting Annex A attached to the Transfer
Agreement and substituting therefor the Revised Annex A in the form attached to
the MLB Credit Agreement. For all purposes of the
2
3
Transfer Agreement, unless otherwise defined therein, capitalized terms shall
have the meanings set forth in the Revised Annex A.
(b) AMENDMENTS TO SECTION 3.02.
(a) Section 3.02(a)(x) of the Transfer Agreement is hereby
amended by deleting Schedule 3.02(a)(x) and replacing it in its entirety with
Schedule 3.02(a)(x) dated as of the date hereof and attached hereto.
(b) Section 3.02(b)(v) of the Transfer Agreement is hereby
amended by deleting Schedule 3.02(b)(v) and replacing it in its entirety with
Schedule 3.02(b)(v) dated as of the date hereof and attached hereto.
(c) Section 3.02(b)(vi) of the Transfer Agreement is hereby
amended by deleting references therein to "Club Trust Credit Facilities" and
"MLB Credit Agreements" and inserting in place thereof references to "Club Trust
Credit Agreement" and "MLB Credit Agreement," respectively.
(d) Section 3.02 of the Transfer Agreement is hereby amended
by adding the following representations and warranties of the Transferor as
clause (c) thereto.
"(c) (i) The Transferor has at all times given effect to, and
will continue to give effect to, all the arrangements described in this
Agreement and the other Transaction Documents.
(ii) The financial and business affairs of the
Transferee have at all times been, and will continue to be, segregated
and readily distinguishable from those of the Transferor so that the
assets and liabilities of the Transferee and the Transferor will be
readily ascertainable.
(iii) The Transferor has observed all procedures
required by this Agreement and by the Transferor's Certificate of
Incorporation and By-laws, or its partnership agreement and certificate
of limited partnership, as the case may be, and the laws of the state
of its incorporation or organization, except where the failure to do so
would not have a material adverse effect on the Rights and Revenues or
the transactions contemplated by this Agreement.
(iv) The Transferor has not commingled its assets with
the assets of the Transferee, any other Participating Club, any Club
Trust or the MLB Trust (each an "Entity").
(v) Neither the assets nor the creditworthiness of the
Transferor is generally held out as being available for the payment of
any liability of any Entity. The Transferor has at all times since
execution of the Transfer Agreement and will
3
4
at all times hereafter continue to treat each Entity as a separate
legal entity, and not as a division or department of the Transferor.
The Transferor maintains an arms'-length relationship with each Entity.
The Transferor has transferred the Rights and Revenues to the
Transferee free and clear of any lien, encumbrance, counterclaim,
defense, right of recoupment or similar claim.
(vi) The Transferor, by execution of this Agreement,
transferred to the Transferee the legal right to receive
one-twenty-eighth (1/28) of the Revenues.
(c) AMENDMENT TO SECTIONS 4.01(b)(iii), (iv) AND (v) OF THE TRANSFER
AGREEMENT. Sections 4.01(b)(iii), (iv) and (v) of the Transfer Agreement are
hereby amended by deleting references therein to "Series A Administrative Agent"
and inserting in lieu thereof references to "Administrative Agent".
(d) AMENDMENT TO SECTION 5.01 OF THE TRANSFER AGREEMENT. Section 5.01
of the Transfer Agreement is hereby amended by deleting the reference therein to
"Collateral Agent" and inserting in place thereof a reference to "Administrative
Agent".
(e) AMENDMENT TO SECTION 5.06 OF THE TRANSFER AGREEMENT. Section 5.06
of the Transfer Agreement is hereby amended by deleting the references therein
to "Collateral Agent" and inserting in place thereof references to
"Administrative Agent".
(f) AMENDMENTS TO SECTION 5.07(a) AND (b) OF THE TRANSFER AGREEMENT.
Section 5.07(a) and (b) of the Transfer Agreement are hereby amended by deleting
the references therein to "Collateral Agent" and inserting in place thereof
references to "Administrative Agent".
(g) AMENDMENT TO SECTION 5.08 OF THE TRANSFER AGREEMENT. Section 5.08
of the Transfer Agreement is hereby amended by deleting the references therein
to "Collateral Agent" and inserting in place thereof references to
"Administrative Agent".
(h) AMENDMENT TO SECTION 5.09 OF THE TRANSFER AGREEMENT. Section 5.09
of the Transfer Agreement is hereby amended by deleting references therein to
"Collateral Agent" and inserting in place thereof references to "Administrative
Agent".
(i) AMENDMENT TO SECTION 5.10 OF THE TRANSFER AGREEMENT. Section 5.10
of the Transfer Agreement is hereby amended by deleting references therein to
"Collateral Agent" and inserting in place thereof references to "Administrative
Agent".
(j) AMENDMENT TO SECTION 5.12 OF THE TRANSFER AGREEMENT. Section 5.12
of the Transfer Agreement is hereby amended by deleting references therein to
"Collateral Agent" and inserting in place thereof references to "Administrative
Agent".
4
5
(k) AMENDMENT TO SECTION 5.13 OF THE TRANSFER AGREEMENT. Section 5.13
of the Transfer Agreement is hereby amended by deleting references therein to
"Collateral Agent" and inserting in place thereof references to "Administrative
Agent".
(l) AMENDMENT TO SECTION 5.14 OF THE TRANSFER AGREEMENT. Section 5.14
of the Transfer Agreement is hereby amended by deleting such Section in its
entirety and inserting in place thereof the following:
"Section 5.14. RETAINED VOTING RIGHTS. Notwithstanding
anything to the contrary set forth herein, it is understood and agreed
that the Rights do not include (a) any voting, consensual or similar
rights of the Transferor, whether arising under the National Media
Contracts, the Superstation Agreements, the International Broadcast
Contracts, the Major League Agreements, the MLB Properties Agreement or
otherwise, including, without limitation, any rights of the Transferor
to participate in any votes and decisions relating to or regarding the
creation of, changes to, the enforcement of, waivers, replacements to
or the exercise of any rights or options or other administration
(including decisions on waivers, enforcement, renegotiations or
exercise of options) under any agreement giving rise to the Rights,
including the National Media Contracts, the Superstation Agreements,
the International Broadcast Contracts, the MLB Properties Agreement,
and the Major League Agreements, (b) any rights, powers or options of
the Transferor, however arising, to institute proceedings to collect or
file claims for payment due from any obligor in respect of the National
Media Contracts, Superstation Agreements or International Broadcast
Contracts, to give and receive notices and other communications from or
to any obligor under any such agreement, to make waivers or other
agreements with respect to, or to exercise any rights or options under,
the National Media Contracts, Superstation Agreements or International
Broadcast Contracts or to bring proceedings against any Person with
respect thereto, or (c) any rights, powers or options of the
Transferor, however arising, to institute proceedings to collect or
file claims for Expansion Fees, to give and receive notices and other
communications from or to any Person with respect thereto, to make
waivers or other agreements or to exercise any rights or options or
otherwise administer any agreement with respect to Expansion Fees or to
bring proceedings against any Person with respect thereto.
(m) AMENDMENT TO SECTION 5.15 OF THE TRANSFER AGREEMENT. Section 5.15
of the Transfer Agreement is hereby amended by deleting references therein to
"Collateral Agent" and inserting in place thereof references to "Administrative
Agent".
(n) AMENDMENT TO ARTICLE V. Amendment to Article V is hereby amended by
adding the following covenants of the Transferor thereto:
"SECTION 5.16 ADDITIONAL COVENANTS OF THE TRANSFEROR.
5
6
(a) The Transferor will observe all procedures required by
its certificate of incorporation and bylaws, or its partnership agreement
and certificate of limited partnership, as the case may be, and the laws of
the state of its incorporation or organization, as the case may be, except
where the failure to do so would not have a material adverse effect on the
Rights and Revenues or the transactions contemplated by this Agreement. The
Transferor will at all times maintain its corporate or partnership
existence, as the case may be, in good standing to the extent required under
the laws of the state of its creation, incorporation or organization. The
Transferor will remain qualified to do business in each jurisdiction in
which the conduct of its business so requires, except where the failure to
do so would not have a material adverse effect on the transactions
contemplated by this Agreement.
(b) The Transferor will not commingle any of its assets with
the assets of any Entity.
(c) The Transferor will not at any time conduct its business
in the name of any Entity. In that regard, no written or oral communications
including, without limitation, letters, invoices, purchase orders and
contracts, will be made in the name of any Entity. The Transferor will at
all times maintain a telephone number and stationery and business forms
separate from each Entity.
(d) The Transferor will not at any time provide for its
expenses and liabilities from the funds of any Entity other than
distributions from the Transferee permitted under the Club Trust Agreement.
(e) No employee of the Transferor will be an employee of a
Club Trust or of the MLB Trust.
(f) None of the assets or the creditworthiness of the
Transferor will be generally held out as being available for the payment of
any liability of any Entity. Assets will not be transferred to or from the
Transferor from or to any Entity without fair consideration or with the
intent to hinder, delay or defraud the creditors of any of them (provided
that distributions [Expos only - or loans] shall be made to the Transferor
in accordance with the terms of the Transaction Documents).
(o) AMENDMENT TO SECTION 6.03 OF THE TRANSFER AGREEMENT. Section 6.3
of the Transfer Agreement is hereby amended by deleting such Section 6.03 in its
entirety and inserting in place thereof:
"Section 6.3. AMENDMENT. This Agreement may be
amended by the Transferor and the Transferee, but only
with the written consent of the Required Banks, which
consent shall not be unreasonably withheld."
6
7
(p) AMENDMENT TO SECTION 6.05 OF THE TRANSFER AGREEMENT. Section 6.05
of the Transfer Agreement is hereby amended by deleting the reference therein to
"Administrative Rights or the Collateral Agent" and inserting in place thereof a
reference to "Administrative Agent" and by deleting clause (c) thereof in its
entirety and inserting in place thereof the following:
"(c) In the case of the Administrative Agent, to
Fleet National Bank One, Federal Street, Boston, MA
02211, Attention: Xxxxx X. Collar".
4. REPRESENTATIONS AND WARRANTIES OF TRANSFEROR AND TRANSFEREE. The
Transferor and Transferee jointly and severally represent and warrant to the
other party and to each Bank as follows:
(a) Such party is a business trust, corporation or partnership, as
applicable, duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization.
(b) The execution, delivery and performance by such party of this
Amendment and Confirmation of Transfer Agreement are within such party's trust,
corporate or partnership powers, as applicable, have been duly authorized by all
necessary trust, corporate or partnership action, as applicable, and do not
contravene such party's constitutive documents or any law or any contractual
restriction binding on or affecting such party.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by such party of this Amendment and
Confirmation of Transfer Agreement.
(d) This Amendment and Confirmation of Transfer Agreement is a legal,
valid and binding obligation of such party, enforceable against such party in
accordance with its terms, except as such enforceability may be limited by
appropriate bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity).
5. VOTING. The Transferor acknowledges and agrees that the MLB Trust,
the Administrative Agent and the Banks are entering into the MLB Credit
Agreement and the MLB Pledge and Security Agreement in reliance upon, among
other things, the covenants of the Transferor set forth herein and in the
Transfer Agreement including, without limitation, the provisions of Section 5.05
of the Transfer Agreement.
6. EFFECTIVENESS. This Amendment and Confirmation of
Transfer Agreement shall become effective upon satisfaction of
the following conditions:
7
8
(a) The Transferee and the Administrative Agent shall have received the
following documents (each in form and substance satisfactory to the
Administrative Agent in its sole discretion):
(i) An executed copy of this Amendment and
Confirmation of Transfer Agreement;
(ii) Executed Uniform Commercial Code financing statements
filed or to be filed in each jurisdiction determined by the
Administrative Agent, executed by (x) any party holding a lien on the
Rights and/or Revenues and (y) by the Transferor (or, as necessary, the
Commissioner), as seller and debtor, and naming the Transferee, as
purchaser and secured party, meeting the requirements of the laws of
each such jurisdiction, and as is necessary to maintain the
Transferee's perfected ownership status of the Rights and Revenues; and
(iii) Such other documents as Transferee or the Administrative
Agent may reasonably request.
7. TRANSACTION DOCUMENT. This Amendment and any other document and
certificate delivered in connection herewith shall be a Transaction Document
for all purposes.
8. NOTICES. All notice hereunder shall be given in accordance with
the provisions of Section 6.05 of the Transfer Agreement as amended hereby.
9. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CHOICE OF LAW PROVISIONS.
10. CONFIRMATION; NO NOVATION. Except as expressly set forth herein,
this Amendment and Confirmation of Transfer Agreement shall not by implication
or otherwise limit, impair, constitute a waiver of, or otherwise affect the
rights and remedies of either party under the Transfer Agreement, nor alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Transfer Agreement, all of which are
ratified and affirmed in all respects and shall continue in full force and
effect. This Amendment and Confirmation of Transfer Agreement shall apply and be
effective only with respect to the provisions of the Transfer Agreement
specifically referred to herein.
11. COUNTERPARTS. This Amendment and Confirmation of Transfer Agreement
may be executed in two or more counterparts, each of which shall constitute an
original but all of which when taken together shall constitute but one contract.
8
9
12. HEADINGS. Section headings used herein are for convenience of
reference only, are not part of this Amendment and Confirmation of Transfer
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Amendment and Confirmation of Transfer
Agreement.
[Remainder of This Page Intentionally Left Blank and Signature Pages Follow]
9
10
SIGNATURE PAGE FOR AMENDMENT AND CONFIRMATION OF TRANSFER AGREEMENT
CLEVELAND INDIANS
EXECUTED as a sealed instrument as of the date first above written.
TRANSFEROR:
CLEVELAND INDIANS BASEBALL
COMPANY, LIMITED PARTNERSHIP
By: Cleveland Baseball Corporation,
its general partner
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
Chairman, Chief Executive Officer and
President
Acknowledged and Agreed:
TRANSFEREE:
INDIANS CLUB TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Club Trustee
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
----------------------------------
XXXXX X. XXXXXXXX, XX.
Senior Financial Services Officer
FLEET NATIONAL BANK, as Administrative Agent
By:
----------------------------------
Xxxxx X. Collar
Vice President
OFFICE OF THE COMMISSIONER OF BASEBALL,
on its own behalf and as Agent for the
Transferor under the Central Fund Agreement
By:
----------------------------------
Xxxxxxx Xxxxx
Chief Financial Officer
