PURCHASE AND SALE AGREEMENT
BETWEEN
SOUTHERN PACIFIC TRANSPORTATION COMPANY
AND
THE DENVER ARENA COMPANY, LLC
MAY 7, 1997
TABLE OF CONTENTS
PAGE
PURCHASE AND SALE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PURCHASE AND SALE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1: PURCHASE AND SALE. . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Purchase Price; Xxxxxxx Money Deposit . . . . . . . . . . . . . 2
1.3 Adjustments and Costs . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2: TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Permitted Exceptions. . . . . . . . . . . . . . . . . . . . . . 4
2.2 Title Report and Documents; Title Policy. . . . . . . . . . . . 5
2.3 Title Conveyed. . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 3: INFORMATION, INSPECTION, AND DEVELOPMENT APPROVALS . . . . . . . 7
3.1 Information . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Buyer's Rights to Enter the Property. . . . . . . . . . . . . . 7
3.3 Zoning and Development Approvals. . . . . . . . . . . . . . . . 10
3.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 4: CONDITIONS TO CLOSING. . . . . . . . . . . . . . . . . . . . . . 11
4.1 Buyer's Conditions. . . . . . . . . . . . . . . . . . . . . . . 11
4.2 Seller's Conditions . . . . . . . . . . . . . . . . . . . . . . 13
4.3 Termination for Failure of Condition. . . . . . . . . . . . . . 13
4.4 Effect of Default . . . . . . . . . . . . . . . . . . . . . . . 13
4.5 Environmental Responsibility Agreement. . . . . . . . . . . . . 14
ARTICLE 5: REPRESENTATIONS AND WARRANTIES; COVENANTS. . . . . . . . . . . . 14
5.1 Seller's Representations and Warranties . . . . . . . . . . . . 14
5.2 No Other Warranties . . . . . . . . . . . . . . . . . . . . . . 17
5.3 Buyer's Representations and Warranties. . . . . . . . . . . . . 17
5.4 Pre-Closing Covenants of Seller . . . . . . . . . . . . . . . . 18
5.5 Compliance with NCP . . . . . . . . . . . . . . . . . . . . . . 19
5.6 Insurance; Indemnities. . . . . . . . . . . . . . . . . . . . . 20
5.7 Xxxx-Xxxxx-Xxxxxx . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 6: CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.2 Closing Obligations of the Parties. . . . . . . . . . . . . . . 21
ARTICLE 7: RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 8: DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . 24
8.1 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.2 Costs of Enforcement. . . . . . . . . . . . . . . . . . . . . . 25
8.3 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 9: POST-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . 26
-i-
9.1 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . 26
9.2 Removal of Railroad Tracks. . . . . . . . . . . . . . . . . . . 26
ARTICLE 10. ENVIRONMENTAL CLEANUP MATTERS. . . . . . . . . . . . . . . . . . 27
10.1 Contamination . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 11: FLOOD PLAIN MATTERS. . . . . . . . . . . . . . . . . . . . . . . 27
11.1 Flood Plain . . . . . . . . . . . . . . . . . . . . . . . . . . 27
11.2 Grading Plan. . . . . . . . . . . . . . . . . . . . . . . . . . 27
11.3 Allocation of Costs Under the Grading Plan. . . . . . . . . . . 27
ARTICLE 12: INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . 28
12.1 Indemnity by Seller . . . . . . . . . . . . . . . . . . . . . . 28
12.2 Indemnification by Buyer. . . . . . . . . . . . . . . . . . . . 28
12.3 Access and Cooperation. . . . . . . . . . . . . . . . . . . . . 28
12.4 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.5 Defense of Indemnified Claims . . . . . . . . . . . . . . . . . 29
ARTICLE 13: INTERPRETATION OF AGREEMENT. . . . . . . . . . . . . . . . . . . 30
13.1 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 30
13.2 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
13.3 Effect of Agreement . . . . . . . . . . . . . . . . . . . . . . 30
13.4 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
13.5 Prior Agreement . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 14: MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . 31
14.1 Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
14.2 No Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
14.3 No Assignment . . . . . . . . . . . . . . . . . . . . . . . . . 31
14.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
14.5 No Recording. . . . . . . . . . . . . . . . . . . . . . . . . . 33
14.6 Days. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
14.7 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . 33
14.8 Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
-ii-
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (the "Agreement"), dated May __, 1997,
is entered into by and between SOUTHERN PACIFIC TRANSPORTATION COMPANY, a
Delaware corporation ("Seller"), and THE DENVER ARENA COMPANY, LLC, a
Colorado limited liability company ("Buyer").
RECITALS
A. Seller owns certain real property and related improvements located in the
City and County of Denver, State of Colorado, further described as the
"Property" in Article 1 of this Agreement.
B. Seller desires to sell the Property, and Buyer desires to purchase the
Property from Seller, free and clear of all liens, encumbrances,
liabilities, duties and obligations except those specifically assumed or
consented to by Buyer as set forth in this Agreement.
C. Buyer is purchasing the Property to construct a sports and entertainment
complex consisting of an arena, production facilities, retail facilities
and parking lot and other uses (the "Project"), all as described in the
City and County of Denver, Application for Zone Map Amendment, a copy of
which is attached hereto as EXHIBIT "A", together with the map submitted
therewith and described in EXHIBIT A, and together with the engineering
drawings described on EXHIBIT "A" (together called the "PUD Application").
NOW, THEREFORE, in consideration of the promises and agreements contained
herein, the sufficiency of which is hereby acknowledged by both parties, Seller
and Buyer hereby agree as follows:
PURCHASE AND SALE AGREEMENT
ARTICLE 1: PURCHASE AND SALE
1.1 PURCHASE AND SALE. Subject to the terms and conditions of this Agreement,
Seller shall sell and convey, and Buyer shall purchase and pay for, all of
Seller's interest in the following described property (all of which are
referred to herein collectively as the "Property"):
(a) the parcels of land comprising approximately 48.7101 acres located in
the City and County of Denver, State of Colorado, which are more
particularly described on EXHIBIT "B" attached hereto and by this
reference made a part hereof (the "Land");
(b) all strips and gores of land belonging, relating or appertaining to
the Land;
(c) all buildings and structures located on the Land, including all
permanent fixtures and equipment located thereon and permanently
affixed to and forming an integral part of such buildings and
structures (the "Improvements");
(d) all easements and other appurtenances to or benefitting the Land and
Improvements;
(e) all leases listed on EXHIBIT "C" attached hereto (the "Leases");
(f) to the extent the same are related to the Land and may be transferred
by Seller to Buyer, any licenses, permits, and similar agreements
benefitting the Property to which Seller is a party, and Seller's
interest as licensor in all licenses and agreements granted for use of
the Land for utility lines and similar purposes, including those not
of record, including without limitation those licenses, permits, and
similar agreements and those licenses and agreements burdening the
Property listed on EXHIBIT "D" attached hereto ("Other Agreements");
and
-1-
(g) any prepaid rents under the Leases for periods occurring after the
Closing Date and all security deposits made by tenants under the
Leases, if any.
Notwithstanding the foregoing, the Improvements and the Property shall not
include the following property (collectively called the "Retained
Property"): (x) all railroad tracks located on the Land (which railroad
tracks include, for purposes hereof, all appurtenances thereto and all
rails and fastenings, switches and frogs, bumpers, ties, and signalling
devices (collectively called the "Railroad Improvements"), (y) all
buildings and structures (including related fixtures, equipment, and
appurtenances) which Seller is obligated to remove as provided for herein,
and (z) all personal property, including all fixtures and equipment,
located on the Land which are not part of the Improvements.
1.2 PURCHASE PRICE; XXXXXXX MONEY DEPOSIT. The purchase price for the Property
(the "Purchase Price") shall be Twenty Million Dollars ($20,000,000).
Simultaneously herewith, Buyer shall pay to Seller Seven Hundred Fifty
Thousand Dollars ($750,000) as an xxxxxxx money deposit for the purchase of
the Property (the "Deposit"). The Deposit shall be credited against the
Purchase Price at the Closing, and the balance of the Purchase Price shall
be payable by Buyer to Seller at the Closing as provided in Article 6,
after credit for the adjustments set forth in Section 1.3, by immediately
available funds delivered by wire transfer as directed by Seller. Except
as provided in Section 8.3, the Deposit shall be non-refundable in the
event the Closing does not occur.
1.3 ADJUSTMENTS AND COSTS. The amount of the Purchase Price due at Closing
shall be subject to the following adjustments and prorations:
(a) REAL PROPERTY TAXES AND ASSESSMENTS. Seller shall pay all real
property taxes and special assessments (including penalties and
interest) allocable to the Property for tax years prior to the year of
Closing. Real property taxes and assessments for the current tax year
shall be prorated between the parties as of the Closing Date, with the
amount of such taxes to be based upon taxes for the current year or,
if not then known, taxes for the prior year. Buyer shall receive a
credit against the Purchase Price for Seller's share of any unpaid
taxes and assessments. Real property taxes and assessments for the
current year and all subsequent tax years shall be paid by the Buyer.
If such taxes and assessments for a subsequent tax year are levied
against Seller, Seller shall forward the tax xxxx to Buyer for payment
directly by Buyer.
To the extent that the Property has previously been taxed by the State
of Colorado under a unified system applicable to railroad properties,
and the City of Denver subsequently taxes the Property separately,
such taxes shall be payable by Buyer only to the extent attributable
to periods after Closing.
In the event there is any supplemental assessment that relates to a
time period prior to the Closing Date, it shall be paid by Seller
unless, and only to the extent that, it is attributable to a change in
use by Buyer after the Closing Date, in which case Buyer shall pay the
incremental amount of any such taxes that are assessed and
attributable to such change in use.
(b) RENTS. All rents and other income, if any, from the Property and
expenses, if any, relating to the Leases on the Property shall be
prorated between Buyer and Seller as of the Closing Date. Seller
shall retain the right to collect rents for periods prior to the
Closing Date, and if Buyer collects any rents due under the Leases for
periods prior to the Closing Date, Buyer shall promptly remit to
Seller all such amounts. All security deposits and advance rents
attributable to periods subsequent to the Closing Date received by
Seller under any Leases as of the Closing Date shall be transferred by
Seller to Buyer at Closing. Buyer shall assume any obligations
relating to, and indemnify and hold Seller harmless from and against
any claims made against Seller for, such security deposits and advance
rents actually transferred to Buyer.
-2-
(c) UTILITIES CHARGES. Seller shall pay all utility charges and other
operating expenses for the Property attributable to the period prior
to the Closing Date and Buyer shall pay all of the same attributable
to all periods thereafter. All accounts for water, sewer, gas,
electrical, telephone and other public utilities payable by Seller
affecting the Property shall be closed effective as of the Closing
Date.
(d) INSURANCE. Insurance policies shall not be assigned to Buyer, and
Seller may cancel the coverage provided thereby at the Closing. Each
party shall be responsible for carrying any insurance coverage it
deems to be appropriate for the period during which such party owns
the Property and otherwise.
(e) PERSONAL PROPERTY TAXES. Because no personal property is included in
the Property, the parties believe that no sales or use tax will be
payable on the sale of the Property. Buyer shall be responsible for
the payment of any such tax which is payable.
(f) RECORDING AND RELATED FEES. Buyer shall pay all recording fees,
filing fees, and documentary fees, and similar fees and taxes payable
in connection with transfer of the Property.
(g) NORMAL CLOSING COSTS. Seller and Buyer shall each pay any fees, costs
and expenses incurred by such party in connection with the transaction
contemplated by this Agreement and not otherwise adjusted or allocated
as set forth in this Section 1.3 or as otherwise provided in this
Agreement.
The obligations of the parties under this Section 1.3 shall survive the
Closing.
ARTICLE 2: TITLE
2.1 PERMITTED EXCEPTIONS. For purposes of this Agreement, "Permitted
Exceptions" shall mean:
(a) a lien for real property taxes and assessments for the current year,
not yet due and payable;
(b) the Leases;
(c) liens or encumbrances arising out of any activity of Buyer or its
agents with respect to the Land;
(d) easements, dedications and other matters of record granted or created
or proposed to be granted or created pursuant to the PUD Application
or any other document filed or submitted by Buyer in connection with
obtaining any governmental approvals necessary for construction of the
Project;
(e) the Other Agreements (to the extent the same create burdens on the
Land or restrict the use thereof);
(f) those exceptions to title listed in the Title Report (as defined in
Section 2.2);
(g) all encroachments, easements, and other matters shown on the Survey
(as defined in Section 2.2), regardless of whether the same are of
record or are otherwise evidenced by any document of record; and
(h) the claim of Alpen Construction Company and/or Xxxxxxx Brake to an
adverse possessory interest in a portion the part of the Property
described in EXHIBIT "B" under the heading "Parcel 3";
-3-
(i) such other exceptions as Buyer shall from time to time accept or be
deemed to have accepted as hereinafter provided.
Those Permitted Exceptions referred to in Subsections (a) through (h) of
this Section 2.1 are hereinafter called the "Identified Exceptions."
2.2 TITLE REPORT AND DOCUMENTS; TITLE POLICY.
(a) TITLE REPORT. Prior to the date hereof, Seller, at its expense, has
delivered to Buyer a Commitment for Title Insurance (File
No. 8288 CM C2) (as the same may be amended or supplemented, the
"Title Report") for the Property issued by North American Title
Company of Colorado (the "Title Company"), as agent for First American
Title Insurance Company, together with legible copies of all documents
evidencing exceptions to title shown therein or otherwise affecting
the Property referred to in such Title Report (the "Title Exception
Documents"). On or before Closing, Seller shall cause the Title
Report to be endorsed or reissued so as to change the effective date
to a date not earlier than ten (10) business days prior to Closing,
and to conform to the requirements set forth in Paragraphs 1, 2, and 5
of EXHIBIT "E" hereto. Seller and Buyer shall cooperate together to
try to cause the Title Policy, when issued, to limit Exception 30, as
listed in the Title Report, to those leases then in effect which
affect the Property. Seller and Buyer shall cooperate together to try
to cause the Title Company to issue endorsements to the Title Report
or to reissue the Title Report to effect the remaining changes in the
Title Report proposed by EXHIBIT "E"; provided that, in the event that
the Title Company refuses to issue endorsements or to reissue the
Title Report to effect such changes on or before June 15, 1997, Buyer
may terminate this Agreement with the effect provided in Section 8.3.
(b) SURVEY. Seller has, prior to the date hereof, provided Buyer with a
copy of a survey of the Property prepared by Benchmark Surveying, Ltd.
and identified as Job No. 3531, dated October 1, 1994, and revised
November 16, 1994, November 30, 1994, and December 19, 1994 (the
"Survey"). The Title Report includes all exceptions required on
account of the encroachments, easements and other matters shown in the
Survey.
(c) INCREASE OF COVERAGE. Seller shall cooperate with Buyer as Buyer
reasonably requests to obtain from the Title Company (at Buyer's
expense), endorsements and other additions to the Title Report,
pursuant to which:
(i) The Title Report is supplemented to provide for the
increase of the amount of the Title Policy from time to
time as construction proceeds on the Project and
providing for the increase of the amount of the Title
Policy from time to time in effect to the sum of
(y) $20,000,000 plus (z) the amount expended by Buyer
from time to time in the construction of the Project.
(ii) The Title Report is supplemented by the addition of
such coinsurors and reinsurers acceptable to Buyer, as
shall be necessary so that none of the Title Company
and such reinsurers and coinsurors is committed to a
portion of the risk under the Title Policy (as
ultimately increased) which exceeds such title
company's normal, self-imposed insurance limits as to
any single policy.
(d) PERIODIC UPDATES. Seller shall, from time to time, provide Buyer with
updates of the Title Report, which shall show the status of the title
to the Property as of a current date. In the event that any update of
the Title Report shall show any exception to title to the Property
which is not an Identified Exception and which has not previously been
accepted by Buyer as a Permitted Exception, Buyer may give notice to
Seller objecting thereto within ten business days after receipt of the
updated Title Report first disclosing such exception. If Buyer fails
to object to any
-4-
exception by notice given within such period of ten business days,
Buyer shall be deemed to have accepted the same as an additional
Permitted Exception. In the event that Buyer timely objects to any
such new or newly disclosed title exception, Seller shall at its
expense and in a manner and form acceptable to Buyer, cure any such
title exception that arises from a voluntary act of Seller (not
including any actions taken by or at the instance of Buyer)
occurring after March 27, 1996; provided that, as to any such
exception that is a monetary lien, Seller may, at its option, defer
the cure of any such monetary lien to the date of the Closing Date
or any prior date. In the event of any other new or newly
disclosed title exception to which Buyer makes timely objection,
Buyer and Seller will attempt to agree on a time and manner for
curing such title exception, but in the event that they do not
agree, Buyer shall have the right to terminate this Agreement with
the effect provided in Section 8.3.
(e) UNDERTAKING. At Closing, Seller, at its expense, shall cause the
Title Company to deliver its written undertaking (the "Undertaking"),
unconditionally agreeing to issue the Title Policy to Buyer, insuring
good and marketable title to the Property in Buyer in the amount of
$20,000,000, subject only to the Permitted Exceptions, in the form
provided for herein and with such endorsements as shall be necessary
to commit the Title Company to the increases of the amount of the
insurance and to the reinsurance and coinsurance provisions provided
in Section 2.2(c) and which have been agreed to by the Title Company,
and such additional endorsements that Buyer or the Buyer's lenders may
reasonably request and which have been agreed to by the Title Company.
(f) PAYMENT OF PREMIUM. At the Closing, Seller shall pay the premium for
the Title Policy to the Title Company; provided that Seller shall be
responsible for the premium only for $20,000,000 of coverage, and
Buyer shall be responsible for all costs of coverage in excess of
$20,000,000 and for the costs of any endorsements not required in
connection with the cure of any title exception that is made the
responsibility of Seller under Section 2.2(d).
(g) TAX CERTIFICATE. Seller has delivered a certificate or certificates
of taxes due covering the Property and issued by the Treasurer of the
City and County of Denver, Colorado, and, upon request of Buyer prior
to Closing, shall deliver updated certificates of taxes due.
(h) NO FURTHER TITLE EXCEPTIONS. So long as this Agreement continues in
effect, Seller shall not, without the prior written consent of Buyer,
sell, transfer, convey, lease, or create easements or other exceptions
to title to the Property, or otherwise cloud title to the Property.
2.3 TITLE CONVEYED.
At the Closing, Seller shall convey and Buyer shall accept good and
marketable title to the Property subject only to the Permitted Exceptions.
ARTICLE 3: INFORMATION, INSPECTION, AND DEVELOPMENT APPROVALS
3.1 INFORMATION. Prior to the execution of this Agreement, Seller has
delivered to Buyer:
(a) a true and correct copy of the Leases, the Other Agreements, the Title
Report, the Title Exception Documents, and the Survey, and all
amendments and/or supplements thereto; and
(b) all environmental studies and reports in the possession or under the
control of Seller relating to the Property, all of which are listed on
EXHIBIT "F" attached hereto (collectively, the "Seller Environmental
Reports").
-5-
3.2 BUYER'S RIGHTS TO ENTER THE PROPERTY.
Prior to Closing, Buyer's rights to enter onto the Property shall be
governed by the following provisions:
(a) ENTRY FOR TESTING AND INSPECTION. Subject to the provisions of any of
the Leases, upon and subject to making prior arrangements with Seller
(which Seller may not delay beyond the second business day after
request to Seller is made), Buyer's Representatives (as defined below)
may enter onto the Property at all reasonable times to make tests,
surveys, studies and inspections in connection with the purchase of
the Property by Buyer and in connection with preparations for
construction of the Project which will occur after the Closing.
Seller or Seller's agents or employees shall be entitled to accompany
Buyer's Representatives onto the Property pursuant to this
Section 3.2(a). Any entry by Buyer's Representatives pursuant to this
Section 3.2(a) shall be made in a manner that results in the least
interference with the use of the Property by Seller or any third party
and with any activities on the Property by Seller or any third party.
"Buyer's Representatives" means Buyer; Buyer's agents, advisers,
contractors, consultants and other representatives (collectively,
"Buyer's Agents"); potential lenders to Buyer ("Lenders"); and
representatives of, or advisers or consultants for, Lenders ("Lenders'
Agents").
(b) EXTENT OF BUYER'S INVESTIGATIONS. Buyer or Lenders shall have the
right, at Buyer's sole cost and expense except and to the extent, if
any, as otherwise specifically provided in this Agreement, to conduct
such studies, evaluations, audits or surveys as Buyer or Lenders deem
appropriate (collectively, the "Buyer Environmental Surveys"), subject
to the other provisions of this Agreement and to the following terms
and conditions:
(i) Seller shall have the right to approve, review and
monitor any and all physical tests, studies and
procedures in or about the Property which are made or
implemented in connection with any Buyer Environmental
Surveys, including, without limitation, the review and
approval of the number, type, extent and location of
any test or monitoring xxxxx or drillings.
(ii) Except as required by law, Buyer's Representatives
shall not make any contacts or communications to any
governmental agency, department, district or board in
connection with any Buyer Environmental Surveys without
the prior written approval of Seller, such approval not
to be unreasonably withheld or delayed.
(iii) Prior to the issuance of any final report by any
consultant to Buyer or Lenders, Seller shall be given
the opportunity to make comments, question and offer
recommendations to the Buyer's consultants or Lenders
preparing such reports.
(iv) Buyer shall provide all of Buyer's Agents, Lenders and
Lenders' Agents with a copy of this Section 3.2 and
obtain the agreement of each such person or entity to
abide by the terms and conditions hereof.
Buyer's obligations under this Section 3.2(b) shall survive the
Closing and the termination of this Agreement.
(c) ENTRY FOR SITE PREPARATION WORK. Seller shall not unreasonably
withhold its approval of any request by Buyer for Buyer and its
contractors to enter onto the Land for purposes of commencing site
preparation for construction of the sports arena, including without
limitation, excavation and filling necessary for construction of the
floor underlying the ice rink in the arena,
-6-
and implementation of the Grading Plan (as defined in Section
11.2). Seller hereby approves Buyer's entry for purposes of
performing the activities described on EXHIBIT "G" attached hereto.
(d) INSURANCE. Prior to any entry by Buyer's Representatives, Buyer shall
(i) arrange for and cause to be maintained in full force and effect a
policy of comprehensive general liability insurance, with broad form
liability endorsement, having a combined single limit of not less than
Two Million Dollars ($2,000,000) per occurrence, and (ii) furnish to
Seller a certificate of such insurance which names Seller as an
additional insured and provides that such policy shall not be canceled
or amended without thirty (30) days' prior written notice to Seller.
Buyer's obligations under this Section 3.2(d) shall survive the
Closing and any termination of this Agreement.
(e) BUYER'S COSTS. Except as otherwise expressly provided in this
Agreement, all costs incurred in connection with tests, surveys,
studies, inspections, reviews, approvals, determinations,
applications, site work, and any other work made by Buyer or Buyer's
Representatives under this Agreement or otherwise shall be the sole
responsibility of and be paid by Buyer. In the event of the
recordation of any claim or lien against the Property for materials
supplied or labor or professional services performed on behalf of
Buyer, Buyer shall promptly discharge such lien at Buyer's sole cost
and expense. Buyer's obligations under this Section 3.2(e) shall
survive the Closing and the termination of this Agreement. Nothing
contained in this paragraph shall be interpreted as modifying or
otherwise affecting the provisions of the Environmental Responsibility
Agreement (as hereinafter defined).
(f) COPIES OF ALL REPORTS. Buyer shall provide to Seller a copy of each
technical report, study, survey, and any similar document obtained by
Buyer in connection with its investigation of the Property prior to
the Closing (whether preliminary, interim, or final in nature), all of
which shall be provided to Seller promptly after the same have been
received by Buyer at no cost to Seller. Buyer's obligations under
this Section 3.2(f) shall survive the Closing and any termination of
this Agreement.
(g) INDEMNIFICATION OF SELLER. Buyer shall indemnify and defend Seller
against, and hold Seller and the Property harmless from and against,
any and all costs, expenses (including, without limitation, reasonable
attorneys' fees), damages, claims, liabilities, liens, encumbrances
and charges arising out of the entry of Buyer's Representatives upon
the Property, unless and to the extent that any such matters arise
from the negligence of Seller or Seller's agents. The obligations of
Buyer under this Section 3.2(g) shall survive the Closing and the
termination of this Agreement.
(h) RESTORATION OF PROPERTY. In the event that the Closing does not occur
for any reason, Buyer shall at its expense fill any xxxxx, test
drillings or other holes created by Buyer's Representatives, and shall
flatten and rough grade the surface of the Land disturbed by the
Buyer's entry or tests. The obligations of Buyer under this
Section 3.2(h) shall survive the Closing and the termination of this
Agreement.
3.3 ZONING AND DEVELOPMENT APPROVALS. Buyer anticipates that the Property will
need to be rezoned and that other development approvals will be required
for the Project. In order to proceed timely with the Project, prior to the
date hereof, Buyer has, jointly with Seller, submitted the PUD Application
and also anticipates that prior to Closing Buyer will want to proceed with
additional applications, for example, for the vacation of existing streets
and alleys on the Property and for the replatting of the Property. The PUD
Application, any additional applications, and amendments or supplements to
any of the foregoing and any commitments made in connection with any of the
foregoing are referred to collectively as the "Planning Documents" and the
rezoning, replatting, and other approval processes are hereinafter called
the "Approval Processes."
-7-
Buyer shall be permitted, prior to Closing, to proceed with the Planning
Documents and Approval Processes as required for the Project, subject to
the following provisions:
(a) If reasonably requested in any instance by Buyer or Seller, Seller as
well as Buyer shall be named as the applicant on the Planning
Documents and in all Approval Processes.
(b) No Planning Document shall be submitted to any government entity until
approved in writing by Seller as to form and content, which approval
shall not be unreasonably withheld or delayed.
(c) Prior to the Closing, no Planning Document shall be permitted to be
completed, so as to be binding on the Property without Seller's
written approval, which may be withheld in Seller's discretion.
Subject to the foregoing, Seller shall cooperate with Buyer in
obtaining necessary approvals of the Planning Documents.
(d) Buyer and Seller shall each keep the other informed of any material
developments in connection with the Planning Documents of which such
party becomes aware.
(e) Except as otherwise specifically provided in this Agreement or the
Environmental Responsibility Agreement, Buyer shall pay for all of the
costs of preparing, submitting and processing the Planning Documents,
and all costs incurred in connection with the Approval Processes,
including, without limitation, application fees, professional fees,
and any required bonds, letters of credit, dedications, and
improvements. Seller shall not have any responsibility for such
costs, and Buyer shall indemnify Seller from and against any such
costs.
(f) In the event that the Closing does not occur, except to the extent
otherwise requested by Seller, Buyer shall, at no cost to Seller, take
all measures necessary to withdraw all of the Planning Documents and
terminate the Approval Processes. Buyer shall indemnify Seller
against all costs incurred in doing so and against any changes or
damages to the Property (excluding any changes to the real property
tax status of the Property) which cannot be reversed by withdrawing
the Planning Documents and terminating the Approval Processes.
The obligations of Buyer under this Section 3.3 shall survive the Closing
and any termination of this Agreement.
3.4 CONFIDENTIALITY. Except as required by law, Buyer shall and shall cause
Buyer's Representatives to maintain in confidence any and all information,
reports, evaluations and surveys generated in connection with their
investigation of the Property and Buyer shall not and shall cause Buyer's
Representatives not to make any disclosure of any such information,
reports, evaluations and surveys to any other person or entity without the
prior written approval of Seller, such approval not to be unreasonably
withheld or delayed; provided, however, Buyer may disclose such information
to representatives of the City and County of Denver, other governmental
organizations or Lenders, if relevant, in the reasonable judgment of Buyer,
to negotiations regarding construction, use or financing of the Project.
In the event the sale of the Property from Seller to Buyer contemplated
hereby is not, for any reason, closed, Buyer shall, upon request from
Seller, return to Seller or cause to be destroyed all information Buyer has
received from Seller with respect to the Property (including any such
information which Buyer has provided to Buyer's Representatives), and shall
not retain any copies thereof or permit any such person to retain any
copies thereof. The provisions of this Section 3.4 shall survive the
Closing and any termination of this Agreement. Buyer shall provide all of
Buyer's Representatives with a copy of this Section 3.4 and obtain the
agreement of each such Buyer's Representative to comply with the terms and
conditions hereof.
-8-
ARTICLE 4: CONDITIONS TO CLOSING
4.1 BUYER'S CONDITIONS. Buyer's obligation to purchase the Property is
expressly conditioned upon satisfaction of each of the following conditions
prior to Closing:
(a) FINANCIAL. Buyer shall have obtained financing for the construction
of the Project on terms and conditions satisfactory to Buyer in its
sole discretion, provided that Buyer has used good faith efforts to
obtain such financing.
(b) CONSENTS. Seller shall have delivered to Buyer evidence of the
consent of any person or entity whose consent is required for the
purchase of the Property by Buyer from Seller.
(c) NO MATERIAL ADVERSE CHANGE. There shall have been no material and
adverse change in the physical condition of the Property between the
date hereof and Closing.
(d) PERFORMANCE. Seller shall have performed and observed all of its
covenants, agreements and obligations contained in this Agreement.
(e) WARRANTIES AND REPRESENTATIONS CORRECT. All the representations and
warranties of Seller contained in this Agreement shall have been true
and correct when made and shall be true and correct on and as of
Closing as if then made or given.
(f) RELEASE OF NUGGETS. The City and County of Denver shall have released
The Denver Nuggets Limited Partnership from its obligations under the
Basketball Agreement dated July 15, 1992 on terms and conditions
satisfactory to Buyer in its sole discretion.
(g) REZONING. Buyer shall have obtained final approvals of all the
Planning Documents.
(h) CITY APPROVALS. Buyer shall have obtained all necessary approvals and
consents from the City and County of Denver, and all agencies and
departments thereof, and from all other governmental entities and non-
governmental entities and persons whose consent is required to
commence construction of the Project, all on terms and conditions
satisfactory to Buyer in its sole discretion.
(i) [Intentionally deleted]
(j) ENVIRONMENTAL APPROVALS. The voluntary environmental management plan
for the Project ("VCUP") submitted to the Colorado Department of
Public Health and the Environment ("CDPHE") by application dated
February 21, 1995, as amended and supplemented and approved by CDPHE
by letter dated May 12, 1995, shall be in full force and effect and
shall not have been amended or modified in any respect, except for an
extension of the time for completion of the VCUP and for other changes
approved by Buyer and Seller. The letter from the Environmental
Protection Agency dated June 8, 1995, shall be in full force and
effect and shall not have been amended and modified in any respect,
except as approved by Buyer and Seller.
(k) APPROVAL OF GRADING PLAN. All governmental approvals of the Grading
Plan necessary to permit construction of the sports arena on the
Property shall have been obtained.
(l) DELIVERY OF DOCUMENTS. Seller shall have delivered the documents
required to be delivered by it pursuant to Section 6.2(a).
-9-
Buyer may, at its option, waive any of such conditions. In the event that
the condition set forth in Section 4.1(e) is not satisfied (except for
matters not within Seller's control), Buyer may elect to close and pursue
any right of indemnification under Section 12.1.
4.2 SELLER'S CONDITIONS. Seller's obligation to sell the Property is expressly
conditioned upon satisfaction of the following conditions prior to Closing:
(a) WARRANTIES AND REPRESENTATIONS CORRECT. All the representations and
warranties of Buyer contained in this Agreement shall have been true
and correct when made and shall be true and correct on and as of
Closing as if then made or given.
(b) BUYER'S PERFORMANCE. Buyer shall have performed and observed all of
its covenants, agreements and obligations contained in this Agreement.
(c) ENVIRONMENTAL APPROVALS. The VCUP shall be in full force and effect
and shall not have been amended or modified in any respect, except for
an extension of the time for completion of the VCUP and for other
changes approved by Buyer and Seller. The letter from the
Environmental Protection Agency dated June 8, 1995, shall be in full
force and effect and shall not have been amended and modified in any
respect, except as approved by Buyer and Seller.
(d) DELIVERY OF DOCUMENTS. Buyer shall have delivered the documents
required to be delivered by it pursuant to Section 6.2(b).
Seller may, at its option, waive any of such conditions.
4.3 TERMINATION FOR FAILURE OF CONDITION. In the event any of the conditions
provided in Sections 4.1 and 4.2 have not occurred and have not been waived
by the appropriate party by the Termination Date, then, subject to
Section 4.4, this Agreement shall automatically terminate with the effect
provided in Section 8.3.
4.4 EFFECT OF DEFAULT. Notwithstanding anything to the contrary contained in
Section 4.3, if the failure of any condition listed in Section 4.1 or
Section 4.2 also constitutes a default under any other Section in this
Agreement, the non-defaulting party shall have the remedies set forth in
Article 8.
4.5 ENVIRONMENTAL RESPONSIBILITY AGREEMENT. In the event that Buyer and Seller
shall have not have agreed upon the form of an Environmental Responsibility
Allocation Agreement containing the terms set forth in EXHIBIT "H" (the
"Environmental Responsibility Agreement"), by June 30, 1997, as such date
may be extended by agreement of Buyer and Seller, Buyer or Seller may
terminate this Agreement with the effect provided in Section 8.3.
ARTICLE 5: REPRESENTATIONS AND WARRANTIES; COVENANTS
5.1 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller hereby represents and
warrants to Buyer as follows:
(a) ORGANIZATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has full power and authority to enter into this Agreement and to
fulfill its obligations hereunder.
(b) CORPORATE APPROVALS. Seller's board of directors has approved the
Prior Agreement (as defined in Section 13.5) and the transaction
contemplated by the Prior Agreement, and Seller has taken all
corporate action necessary to authorize the execution and delivery by
Seller of the Prior Agreement and other documents contemplated thereby
and the performance of its obligations thereunder. Because this
Agreement contains terms and conditions substantially the same as
-10-
those of the Prior Agreement, no further action by Seller is required
for this Agreement and the transactions contemplated hereby to be
fully authorized by all necessary corporate action of Seller.
(c) DUE EXECUTION; BINDING AGREEMENTS. This Agreement has been duly
executed and delivered by Seller and all other documents contemplated
hereby to which Seller is a party have been or will be duly executed
(and acknowledged where necessary) and delivered by Seller, and are or
when duly executed and delivered, will be, valid, binding and
enforceable obligations of Seller.
(d) NO CONFLICT. The execution and performance of this Agreement and the
documents contemplated hereby, and consummation of the transactions
contemplated hereby, do not conflict with, with or without notice or
the passage of time or both, do not result in the breach of, and do
not constitute a default under or violation of the terms and
provisions of any contract, lease, agreement or obligation to which
Seller is a party or by which Seller may be bound or of any law, rule,
license, regulation, judgment, order or decree governing or affecting
Seller or the Property.
(e) NO PENDING LITIGATION OR GOVERNMENTAL ACTION. There is no pending or,
to Seller's knowledge, threatened litigation, administrative action,
condemnation by any federal or state authority, governmental
investigation, or similar governmental action relating to the Property
or the transactions contemplated by this Agreement, except as set
forth on EXHIBIT "I" attached hereto.
(f) NO NOTICE OF VIOLATION; LICENSES. Seller has not received any notice
of and has no knowledge of the assertion of any violation of any law,
rule, regulation, order or other legal action of any kind involving
the Property which now exists or is claimed now to exist. Seller has
all licenses, permits, certificates, orders, approvals and authority
from all governmental agencies that are necessary for the ownership
and operation of the Property as it is presently operated.
(g) LEASES. There are no tenancy or other agreements that affect Seller's
current use or Buyer's intended use of the Property (other than
agreements made by Buyer), or that otherwise burden the Property,
other than the Leases and the Other Agreements listed on EXHIBITS "C"
and "D". All of the Leases are in full force and effect and were
entered into by Seller in the ordinary course of its business. No
material violation by any party under any Lease has occurred, no
tenant has paid rent for more than thirty (30) days in advance of the
due date therefor, and no tenant has paid any security deposit except
as disclosed on EXHIBIT "C".
(h) HISTORIC DESIGNATIONS. No Improvements on the Property have been
listed on the National Register of Historic Places or any comparable
Colorado list, and, to Seller's knowledge, no claim has been made that
any Improvements should be so listed.
(i) ENVIRONMENTAL. Except as previously disclosed in the Seller
Environmental Reports delivered by Buyer pursuant to Section 3.1
above, or otherwise disclosed on EXHIBIT "F", to the actual knowledge
of X. X. Xxxxx and Xxxx X. Xxxxxxx, both of whom are employees or
agents of Seller on the date hereof ("Seller's Knowledge"):
(i) The Property does not contain asbestos or material
containing asbestos.
(ii) The Property does not contain PCBs or PCB Items, as those
terms are defined in 40 C.F.R. Part 761.
(iii) The Property does not contain underground storage tanks, as
those terms are defined in 42 U.S.C. Section 6991 et seq.
("Solid Waste Disposal Act"), or above-ground storage tanks.
-11-
(iv) There is no and has been no release of petroleum into the
environment from an above ground or underground storage tank
at the Property, as those terms are defined in the Solid
Waste Disposal Act, nor is any petroleum otherwise present
on the Property.
(v) There is, and has been, no release or threatened release,
other than federally permitted releases, of hazardous
substances or pollutants or contaminants into the
environment from or through the Property as those terms are
defined in 42 U.S.C. Section 9601 et seq. ("CERCLA").
(vi) The Property is not used, and has not been used, for the
generation, transportation, treatment, storage or disposal
of hazardous substances, pollutants, or contaminants, as
those terms are defined in CERCLA. As to those hazardous
substances, pollutants, or contaminants disposed of on, in,
or at the Property, the hazardous substances, pollutants, or
contaminants disposed of are not the subject of a release or
threatened release.
(vii) The Property is in compliance with all applicable federal,
state and local environmental statutes, regulations,
ordinances, and any permits, approvals, or judicial or
administrative orders issued thereunder. All existing
federal, state and local environmental permits and approvals
applicable to the Property are listed on EXHIBIT "J"
attached hereto.
(viii) The Property contains no conditions that could result in a
recovery by any governmental or private party of remedial or
removal costs, natural resource damages, property damages,
damages for personal injuries, other costs, expenses or
damages, or could result in injunctive relief, arising from
any alleged injury or threat of injury to health, safety, or
the environment relating to the Property.
(ix) Any prior administrative and judicial litigation or
proceedings, or threats of administrative and judicial
litigation or proceedings, regarding environmental issues
have been finally resolved and there are no commitments or
agreements that were entered into to resolve any such
litigation or proceedings.
(x) Except for the VCUP, there have been no orders or documents
issued by any court or administrative agency that impose
environmental requirements or interpret environmental
requirements under any environmental statute or regulation
relating to the Property.
(xi) All appropriate inquiry into the previous ownership and uses
of the Property consistent with good commercial or customary
practice has been undertaken in an effort to minimize
liability. The inquiry is adequate in light of commonly
known or reasonably ascertainable information about the
Property; the obviousness of the presence or likely presence
of contamination, assuming there is contamination at the
Property; and the ability to detect any contamination by
appropriate inspection.
(xii) Neither the Property nor any portion of the Property
constitutes a "wetland" subject to regulation pursuant to
Section 402 or Section 404 of the Federal Water Pollution
Control Act, or any comparable state or local law or
regulation.
(j) NO SPECIAL DISTRICT OR GOVERNMENTAL COMMITMENTS. Except as disclosed
on EXHIBIT "K" attached hereto, the Property is not situated within
any special assessment district other than the districts disclosed by
the most recent statement for real property taxes for the Property,
nor is the Property subject to any special assessments except for
those relating to such districts. To
-12-
Seller's Knowledge, there is no proposal under which the Property is
to be placed in any other special assessment district except for
proposals relating to flood plain improvement work. Except as
listed on EXHIBIT "K" and except for any commitments or agreements
entered into by the Buyer in connection with the Project, there are
no existing commitments or agreements with any federal, state or local
government authority or agency affecting the Property.
(k) ORDINARY COURSE. The sale of the Property contemplated hereby is a
sale in the ordinary course of Seller's business.
(l) NO MISSTATEMENT. This Agreement (including the exhibits hereto)
contains no material misstatement of fact or omits to state any
material fact necessary to make the statements contained therein not
misleading.
Seller shall from time to time notify Buyer as to any change in the status
of any of the foregoing warranties and representations which are within
Seller's Knowledge, promptly after the same becomes Seller's Knowledge.
Seller will not take any actions that would cause any of the foregoing
representations and warranties not to be true and correct as of Closing.
No suit may be brought on account of any claimed breach or violation of any
provision of this Section 5.1 unless filed and served on or before the
third anniversary of the date of Closing.
5.2 NO OTHER WARRANTIES. Buyer hereby acknowledges that, except for the
warranties and representations set forth in Section 5.1 or in any document
delivered pursuant to this Agreement, Seller is making no warranty or
representation of any kind or nature whatsoever regarding the Property.
Buyer hereby acknowledges that Seller disclaims any and all express and
implied warranties regarding the Property or the condition thereof except
as set forth in Section 5.1 or in any document delivered pursuant to this
Agreement.
5.3 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer hereby represents and
warrants to Seller as follows:
(a) ORGANIZATION. Buyer is a limited liability company, organized,
validly existing and in good standing under the laws of the State of
Colorado. Buyer has full power and authority to enter into this
Agreement and to fulfill its obligations hereunder.
(b) AUTHORIZATION. Buyer has taken all action necessary to authorize the
execution and delivery of this Agreement by it and the performance of
its obligations hereunder.
(c) DUE EXECUTION; BINDING AGREEMENTS. This Agreement has been duly
executed and delivered by Buyer and all other documents contemplated
hereby to which Buyer is a party have been or will be duly executed
(and acknowledged where necessary) and delivered by Buyer, and are or
when duly executed and delivered, will be, valid, binding and
enforceable obligations of Buyer.
(d) NO CONFLICT. The execution and performance of this Agreement and the
documents contemplated hereby do not violate or conflict with, or,
with or without notice or the passage of time or both, result in the
breach of, or constitute a default under or violation of the terms or
provisions of any, and are not restricted by any, other agreement,
lease, contract, or obligation, court order or law to which Buyer or
any of its members is a party or by which Buyer or any of its members
is bound or of any law, rule, license, regulation, judgment, order or
decree governing or affecting Buyer or any of its members.
No suit may be brought on account of any claimed breach or violation of any
provision of this Section 5.3 unless filed and served on or before the
third anniversary of the date of Closing.
-13-
5.4 PRE-CLOSING COVENANTS OF SELLER. Following execution of this Agreement and
prior to Closing, Seller shall, except as otherwise expressly provided in
this Agreement:
(a) ORDINARY COURSE. Conduct any business on and operate the Property in
the ordinary course consistent with past operations of the Property.
(b) CASUALTY INSURANCE. Maintain in effect any casualty insurance
policies insuring the Property or obtain suitable replacements
thereof; provided that nothing contained herein shall prohibit Seller
from self-insuring as to any casualty risk associated with the
Property, consistent with its current practice.
(c) LEASES. Not cancel, terminate or modify any existing Lease in any
respect adverse to the lessor's interest (except in accordance with
and as required by the provisions of any such Lease and except in
accordance with Seller's normal business practice) without Buyer's
prior written consent (which shall not unreasonably be withheld), not
enter into new Leases without Buyer's prior written consent (which
shall not be unreasonably withheld) except any Lease which may be
terminated on not more than 30 days' notice, not accept rents under
the Leases more than one month in advance of the date due, and perform
the lessor's obligations under the Leases in accordance with Seller's
established practice.
(d) TAXES. Pay all taxes and assessments affecting the Property prior to
the date such taxes and assessments are delinquent.
(e) COMPLIANCE WITH AGREEMENTS. Comply in all material respects with all
terms, conditions and provisions of all agreements affecting the
Property and make all payments due thereunder and suffer no material
default by Seller thereunder.
(f) TERMINATION OF LEASES. At Buyer's request as to any of the Leases
(i) which affect the part of the Property on which the Project will be
constructed and (ii) which Leases can be terminated with the giving of
notice by the lessor thereunder, send a notice of termination as to
such Lease; provided that in the event that the Closing does not occur
hereunder, as to any Lease terminated before Closing at the request of
Buyer (including any leases required to be terminated in order for
Buyer to perform its other obligations hereunder required to be
performed prior to the Closing), Buyer shall reimburse Seller for the
amount of the rent that would have been payable under that Lease
through the balance of the term of the Lease (or if the Lease was on a
month-to-month basis or year-to-year basis, for six months). If any
such notice is given by Seller at Buyer's request in accordance with
the terms of a particular Lease and the tenant thereunder nevertheless
asserts a claim against Seller arising out of the giving of such
notice by Seller at Buyer's direction, Buyer shall indemnify and hold
Seller harmless from any and all loss, liability, cost or expense
sustained by Seller as a result thereof, including reasonable
attorneys' fees. Buyer's obligations under this Section 5.4(f) shall
survive the Closing and the termination of this Agreement.
(g) DEMOLITION AND CLEARING. In order to facilitate site preparation for
construction of the sports arena by the Buyer, Seller, at its sole
cost and expense, (i) has taken or shall, subject to obtaining any
necessary permits, take the actions listed on EXHIBIT "L" to initiate
work required by the VCUP; and (ii) has (A) removed all Railroad
Improvements located on the Land which are located northeast of Ninth
Street; (B) removed any fences from the Property and removed from the
Land, stock piled on the Land, or destroyed all concrete docks, and
curbs not lying in dedicated street or alley right-of-ways, located on
the Land which are located northeast of Ninth Street; and
(C) demolished the ESCO warehouse located along Auraria Parkway
between 0xx Xxxxxx and 11th Street, and removed any foundations and
capped any underground utilities; provided, that if Closing does not
occur for any reason other than breach of this Agreement by
-14-
Seller, subject to the limitation, if applicable, provided in Section
8.3 on Buyer's total reimbursement obligations under Section 11.3 and
this Section 5.4(g); Buyer shall reimburse Seller for the costs
incurred in taking the actions required by this Section 5.4(g). The
obligations of Buyer under this Section 5.4(g) shall survive the
termination of this Agreement.
5.5 COMPLIANCE WITH NCP. Seller and Buyer recognize that certain measures will
be required to ensure that contaminant removal activities performed under
the VCUP are substantially in compliance with applicable National
Contingency Plan ("NCP") procedures, involving public involvement and
related matters, established under CERCLA. Buyer and Seller intend that
all contaminant removal activities will be substantially in compliance with
the NCP. Seller has planned and implemented and shall continue to
implement public involvement and related programs as appropriate to ensure
substantial compliance with the NCP, and Buyer shall cooperate with such
activities by Seller.
The obligations of the parties under this Section 5.5 shall survive the
Closing and any termination of this Agreement.
5.6 INSURANCE; INDEMNITIES.
(a) Buyer shall use its reasonable efforts (at no additional cost to
Buyer) to require Buyer's contractors for the Project and any
subcontractors and subsubcontractors of such contractors, which are
required to carry liability insurance naming Buyer as an additional
insured, also to name Seller as an additional insured.
(b) Seller shall use its reasonable efforts (at no additional cost to
Seller) to require Seller's contractors for any work on the Property
and any subcontractors and subsubcontractors of such contractors,
which are required to carry liability insurance naming Seller as an
additional insured, also to name Buyer as an additional insured.
(c) To the extent Buyer obtains indemnities from liability for itself from
any contractors, subcontractors, and subsubcontractors described in
Section 5.6(a), Buyer shall use its reasonable efforts (at no
additional cost to Buyer) to cause Seller to be named as an additional
indemnitee under such indemnities.
(d) To the extent Seller obtains indemnities from liability for itself
from any contractors, subcontractors, and subsubcontractors described
in Section 5.6(b), Seller shall use its reasonable efforts (at no
additional cost to Seller) to cause Buyer to be named as an additional
indemnitee under such indemnities.
5.7 XXXX-XXXXX-XXXXXX. Buyer and Seller have satisfied themselves that they
are not required to make a filing before the Closing under the provisions
of Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended ("Xxxx-
Xxxxx-Xxxxxx") because the Property is unproductive real property and is
being sold by Seller in the ordinary course of Seller's business. In the
event of any change in circumstances or in the law that causes them to
change this determination, Seller and Buyer shall cooperate in making any
filing they determine to be required under Xxxx-Xxxxx-Xxxxxx.
ARTICLE 6: CLOSING
6.1 CLOSING. The closing of the transaction contemplated by this Agreement
(the "Closing") shall occur at the offices of Xxxxx, Xxxxxx & Xxxxxx LLP,
000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx, or such other place agreed
by the parties, at 10:00 a.m. on a date specified by Buyer (the "Closing
Date") in a written notice to Seller, which date shall be no earlier than
fourteen (14) days after the date of receipt of such notice; provided that,
unless a notice is properly given by Buyer specifying an earlier Closing
Date, the Closing Date shall be August 29, 1997.
-15-
6.2 CLOSING OBLIGATIONS OF THE PARTIES. At the Closing, the parties shall
execute and deliver the following documents (the "Closing Documents") and
otherwise cause the following events to occur, each being a condition
precedent to the others but all being deemed to have occurred
simultaneously:
(a) Seller shall deliver or cause to be delivered to Buyer the following:
(i) DEED. A special warranty deed in the form attached
hereto as EXHIBIT "M" (the "Deed"), conveying to Buyer
title to the Property, subject only to the Permitted
Exceptions and to all other exceptions of record.
(ii) ASSIGNMENT AND ASSUMPTION. An assignment and
assumption agreement, substantially in the form of
EXHIBIT "N" attached hereto, transferring to Buyer all
of Seller's interests in and to the Leases and the
Other Agreements, indemnifying and holding harmless
Buyer from and against any and all claims from any
tenants or other parties thereunder arising prior to
the Closing Date, and requiring Buyer to indemnify and
hold harmless Seller from and against any such claims
arising after the Closing Date.
(iii) ORIGINAL DOCUMENTS. The original Leases and Other
Agreements (in the possession of Seller), together with
copies of all memoranda and/or drafts relating to
pending negotiations relating to the Leases and Other
Agreements in the possession of Seller, and any
security deposits and prepaid rents made by the tenants
under the Leases for periods occurring after the
Closing Date.
(iv) RENT ROLL. A rent roll updated to within ten
(10) business days of the Closing Date and certified as
true and complete by Seller, showing, for each Lease,
the name of the tenant, the rent payable, the date
through which rent has been paid, and the term and the
expiration date thereof (including any renewal
options), together with copies of all notices of
default sent (or received) by Seller as lessor under
such Lease that remain uncured.
(v) NOTICE TO TENANTS. A notice to the tenants under the
Leases of the assignment to Buyer of the lessor's
interest under the Leases.
(vi) GOOD STANDING CERTIFICATE. A certificate of the
Secretary of State of Delaware, dated not earlier than
thirty days prior to the Closing Date, showing that the
Seller is a validly existing corporation in good
standing under the laws of such state.
(vii) INCUMBENCY CERTIFICATE. An incumbency certificate
setting forth the officer(s) of Seller authorized to
execute and deliver the Closing Documents certified by
Seller's secretary or an assistant secretary.
(viii) FIRPTA AFFIDAVIT. A non-foreign affidavit of Seller,
substantially in the form of EXHIBIT "O" attached
hereto, to assure compliance with Section 1445 of the
Internal Revenue Code of 1986, as amended.
(ix) BOARD RESOLUTION. A certified copy of resolutions of
Seller's board of directors approving and authorizing
the execution, delivery and performance of this
Agreement and the documents to be delivered by Seller
pursuant to this Agreement.
-16-
(x) LEGAL OPINION. An opinion of Seller's legal counsel,
satisfactory in form and substance to Buyer, that the
documents to be delivered by Seller pursuant to this
Agreement have been duly authorized by Seller, that
this Agreement and such documents are the valid,
binding and enforceable obligations of Seller, and
opining as to such other matters as Buyer may
reasonably request.
(xi) TITLE ASSURANCE. The Undertaking of the Title Company.
(xii) ENVIRONMENTAL RESPONSIBILITY AGREEMENT. The
Environmental Responsibility Agreement executed by
Seller.
(xiii) OTHER DOCUMENTS. Such other documents as may be
reasonably required by Buyer to effect the consummation
of the transaction contemplated hereby.
(b) Buyer shall deliver or cause to be delivered to Seller the following:
(i) PAYMENT. The Purchase Price, as adjusted pursuant to
Section 1.3, in immediately available funds delivered
by wire transfer as specified by Seller.
(ii) ASSIGNMENT AND ASSUMPTION. A copy of the assignment
and assumption referred to in Section 6.2(a)(ii),
executed by Buyer.
(iii) LEGAL OPINION. An opinion of Buyer's legal counsel,
satisfactory in form and substance to Seller, that
Buyer is a duly organized Colorado limited liability
company in good standing in Colorado, that the
documents to be delivered by Buyer pursuant to this
Agreement have been duly authorized by Buyer, that this
Agreement and, when executed and delivered by Buyer,
such other documents are the valid, binding, and
enforceable obligations of Buyer, and opining as to
such other matters as Seller may reasonably request.
(iv) CERTIFICATE REGARDING BUYER. A certificate of the
Secretary of State of Colorado, dated not earlier than
thirty days prior to the Closing Date, showing that
Buyer is a validly existing limited liability company
in good standing under the laws of that state.
(v) CERTIFICATES REGARDING THE MEMBERS. Certificates from
their respective states of organization, dated not
earlier than fourteen days prior to the Closing Date,
showing that each of the members of Buyer is validly
existing and in good standing under the laws of that
state and a certificate from the Secretary of State of
Colorado dated not earlier than thirty days prior to
the Closing Date showing that each member is qualified
to do business in Colorado.
(vi) ENVIRONMENTAL RESPONSIBILITY AGREEMENT. The
Environmental Responsibility Agreement executed by
Buyer.
(vii) ADDITIONAL DOCUMENTS. Such affidavits and other
documents as may be required or reasonably requested by
Seller to effect the consummation of the transaction
contemplated hereby.
-17-
(c) Buyer and Seller shall each execute settlement statements showing
adjustments to the Purchase Price and payments of the costs of
Closing. Prorated items and costs shall be charged or credited to
Seller and Buyer as provided in Section 1.3.
(d) Seller shall surrender possession of the Property to Buyer.
ARTICLE 7: RISK OF LOSS
If, between the date of this Agreement and the Closing Date, either (i) any
part of the Property is damaged or destroyed by fire or other casualty
which, in the reasonable judgment of Buyer, would render the Property
unsuitable for Buyer's use thereof, or (ii) any material part of the
Property is taken in condemnation or under the right of eminent domain, or
proceedings for such taking shall be pending or threatened and, in the
reasonable judgment of Buyer, such taking renders or would render the
Property unsuitable for Buyer's use thereof, Buyer shall have the right to
terminate this Agreement by notice given to Seller within ten (10) days
after receiving notice thereof. Any such termination shall be governed by
Section 8.3. Seller shall promptly notify Buyer of each occurrence of the
kind specified above which comes within Seller's Knowledge and shall give
Buyer such information relating thereto as Buyer may thereafter reasonably
request. If Buyer fails to give notice of termination within such ten-day
period as to any damage or taking, Buyer's right to terminate on account of
such damage or taking shall be deemed to have been waived and this
Agreement shall continue in full force and effect, notwithstanding the
damage or taking, without any diminution of the Purchase Price, in such
case Seller shall, on the Closing Date, deliver to Buyer any insurance
proceeds or condemnation awards received by Seller as a result of any
occurrence specified herein, assign to Buyer all of Seller's right, title
and interest in and to any insurance proceeds or condemnation awards
resulting from any such occurrence that have not yet been received by
Seller on that date, and cooperate with and assist Buyer in collecting any
such proceeds or awards, at Buyer's sole cost and expense.
ARTICLE 8: DEFAULT AND REMEDIES
8.1 REMEDIES.
(a) PRE-CLOSING. In the event of any default at or before the Closing:
(i) SELLER'S REMEDIES. In the event of a material default by
Buyer (including a material breach in any of Buyer's
warranties or representations but not including the failure
to close on the Closing Date) which occurs at or before the
Closing and continues for 14 days after Buyer receives
notice of such default from Seller, or in the event Buyer
defaults on its obligation to close the purchase of the
Property on the Closing Date, Seller shall be entitled to
terminate this Agreement and retain the Deposit as
liquidated damages, in which event both parties shall be
relieved of all further obligations hereunder; provided that
no such termination or retention shall relieve Buyer of any
obligation for the performance of its obligations under any
of the provisions of this Agreement which provide that they
will survive the termination of this Agreement, all of which
(subject to the limitation, if applicable, provided in
Section 8.3 on Buyer's total reimbursement obligation under
Sections 5.4(g) and 11.3) shall continue in full force and
effect until fully performed and as to which Seller shall
have all remedies normally available at law or in equity.
(ii) BUYER'S REMEDIES. In the event of a default by Seller at or
before the Closing (including any breach of Seller's
warranties and representations but not including the failure
to close on the Closing Date), which continues for 14 days
after Seller receives notice of such default from Buyer, or
in the event Seller defaults on its obligation to close the
purchase of the Property on the Closing Date, Buyer shall
have all remedies
-18-
available at law or equity, including damages and specific
performance, which remedies shall be cumulative and
non-exclusive. Seller acknowledges that, if Seller fails
to close the transaction provided for herein as a result of
its breach of its obligations hereunder, Buyer shall, in
addition to other remedies available at law or in equity, be
entitled to specific performance of this Agreement because
the Property is unique and possession thereof cannot be
duplicated, and that any remedy at law is inadequate.
(b) POST-CLOSING DEFAULTS. In the event that, after the Closing has
occurred, Buyer or Seller (i) fails to perform or comply with any of
its obligations or the terms contained in this Agreement or
(ii) breaches any of its representations and warranties made herein,
the injured party shall have all rights and remedies available at law
or in equity, including damages, specific performance and termination
of this Agreement, which remedies shall be cumulative and not
exclusive, except for circumstances where an exclusive remedy is
otherwise specified in this Agreement.
8.2 COSTS OF ENFORCEMENT. In any action to interpret or enforce this
Agreement, to collect damages as a result of a breach of its provisions, or
to collect any indemnity provided for herein, the prevailing party shall
also be entitled to collect all its costs in such action, including the
costs of investigation, expert witnesses and reasonable attorneys' and
consultants' fees and disbursements, together with all additional costs
incurred in enforcing or collecting any judgment rendered.
8.3 TERMINATION. In the event of the termination as provided for in this
Agreement or for any reason other than default as set forth in Section 8.1,
(i) Buyer shall pay all amounts to Seller which Buyer is obligated to pay
hereunder (provided that, before expending any amounts for which Buyer is
obligated to reimburse Seller under Sections 5.4(g) and 11.3 in excess of
$750,000, Seller shall give Buyer notice thereof, and Buyer shall have the
option, to be exercised by Buyer by notice to Seller given within fourteen
(14) days after receipt of Seller's notice, to waive any further
performance by Seller under Sections 5.4(g) and 11.3, in which event
Buyer's reimbursement obligation under Sections 5.4(g) and 11.3 shall be
limited to a total of $750,000, and, in the absence of the exercise of such
right in such time and manner by Buyer, there shall be no limitation on the
amount of Buyer's reimbursement obligation under Sections 5.4(g) and 11.3);
(ii) Buyer shall perform its other obligations under any provisions hereof
which specifically survive the termination of this Agreement; (iii) Buyer
shall comply with the provisions of Sections 3.2 and 3.3.; (iv) Buyer shall
execute and deliver to Seller any instruments which Seller from time to
time reasonably requests relinquishing any interest Buyer may have in the
Property under this Agreement or under any documents given pursuant to this
Agreement; (v) Seller shall apply the Deposit against any amounts Buyer is
obligated to pay under Section 8.3(i), and shall return the balance of the
Deposit, unless this Agreement has been terminated as a result of the
failure of Buyer's conditions set forth in Sections 4.1(a), (f), (g), (h)
or (k), in which event Seller may retain the balance of the Deposit; and
(vi) the parties shall be relieved of all further obligations hereunder.
ARTICLE 9: POST-CLOSING COVENANTS
9.1 FURTHER ASSURANCES. From time to time after the Closing Date, each of
Seller and Buyer shall execute and deliver such other instruments
(including instruments of conveyance, assignment and transfer), and shall
take such other actions in addition to those expressly provided for herein,
as the other party may from time to time reasonably request in order to
effect and confirm the transactions provided for herein. Each of Seller
and Buyer also shall provide such cooperation and furnish such information
to the other party as that party may from time to time reasonably request
for purposes of necessary and voluntary filings, related to the
transactions contemplated hereby, with any governmental entity.
-19-
9.2 REMOVAL OF RAILROAD TRACKS.
(a) SELLER OBLIGATION AND RIGHT TO REMOVE. Seller shall remove all
remaining Retained Property located on the Land by no later than
thirty (30) days after the Closing (the "Retained Property Removal
Date") and shall, except to the extent that Buyer requests otherwise,
rough grade, substantially at the present level, the portions of the
Land disturbed by the removal of the Retained Property by Seller.
(b) BUYER'S REMEDY. If Seller shall fail to remove the remaining Retained
Property on or before the Retained Property Removal Date, Buyer may
give Seller notice thereof within ten days after the Retained Property
Removal Date, and Buyer shall be entitled, but shall not be obligated,
to remove and dispose of such Retained Property, at the sole cost and
expense of Seller and Seller shall reimburse Buyer, promptly upon
demand, for all costs reasonably incurred by Buyer in connection with
the removal and disposal of the Retained Property. Seller shall not
have any obligation with respect to any Retained Property not removed
by the Retained Property Removal Date and not identified in a notice
given by Buyer to Seller within ten days after the Retained Property
Removal Date.
(c) ACCESS FOR REMOVAL. Buyer shall provide Seller with access to the
Property for thirty (30) days after the Closing for purposes of
removing the Retained Property as provided for herein.
ARTICLE 10. ENVIRONMENTAL CLEANUP MATTERS
10.1 CONTAMINATION. The parties' agreement with respect to environmental
cleanup matters relating to the Property will be set forth in the
Environmental Responsibility Agreement.
ARTICLE 11: FLOOD PLAIN MATTERS
11.1 FLOOD PLAIN. The Survey reveals that the Property is located in the flood
plain for a 100-year storm (the "Flood Plain").
11.2 GRADING PLAN. Based on a study of surface water drainage on the Property,
Buyer's civil engineer has developed a grading plan, as set forth on plans
prepared by HOK Sport, No. C2.1-3 and C2.1-4, Project No. 00-000-000, dated
July 1, 1995, as revised after the date thereof by the Buyer with the
consent of Seller, which consent shall not be unreasonably withheld (the
"Grading Plan"). The Grading Plan provides for raising the land underlying
the floor of the arena to a level 18 inches higher than the flood level
during a 100-year storm and other resulting grading requirements.
11.3 ALLOCATION OF COSTS UNDER THE GRADING PLAN. Seller shall be solely
responsible for paying any and all expenses and costs associated with
grading the Land to the levels specified in the Grading Plan plus or minus
1/10 of a foot, including the costs of preparing the Grading Plan and
related surface water drainage reports. Based on preliminary bids received
before March 27, 1996, such expenses (all such expenses and costs are
herein referred to as "Flood Plain Costs") were expected to be in the range
of $400,000, plus or minus, but Seller's obligation for Flood Plain Costs,
including any such costs incurred prior to the date hereof, shall not
exceed $500,000. In the event that such work is commenced prior to Closing
and the Closing does not occur for any reason other than Seller's breach of
this Agreement, notwithstanding the foregoing provisions of this
Section 11.3, subject to the limitation, if applicable, provided in
Section 8.3 on Buyer's total reimbursement obligation under Section 5.4(g)
and this Section 11.3, Buyer shall reimburse Seller for all Flood Plain
Costs Seller incurs, including any such costs incurred prior to the date
hereof. Buyer and Seller shall cooperate with one another in obtaining
competitive bids for such grading. Except for any of such work done by
Seller prior to the Closing, Buyer shall contract and pay for the costs for
such grading, and Seller shall reimburse Buyer for such
-20-
costs (not to exceed a total amount, including amounts expended by Seller
prior to the Closing, of $500,000); provided that, if Seller is not
satisfied with the bids obtained for such grading, Seller shall have the
right to perform the grading directly or through its own contractors, in
which event Buyer shall permit Seller and its contractors access to the
Property for such purposes. Seller shall cooperate with Buyer in obtaining
any necessary permits for the Grading Plan. The obligations of the parties
under this Section 11.3 shall survive the Closing or the termination of
this Agreement. Seller shall have the right to monitor completion of the
Grading Plan to ensure that work is proceeding in accordance with such
Plan.
ARTICLE 12: INDEMNIFICATION
12.1 INDEMNITY BY SELLER.
(a) Seller, to the fullest extent permitted by law but subject to the
limitations set forth in this Section, shall defend, indemnify, and
hold harmless Buyer, its Affiliates and their respective officers,
directors, employees, agents, successors and assigns (the
"Indemnitees") from and against all Losses of such Indemnitees,
directly or indirectly, relating to, resulting from or arising out of:
(i) The breach by Seller of any representation or warranty made
by Seller and contained in this Agreement; and
(ii) The failure of Seller to fulfill, satisfy, and discharge any
of its obligations or covenants under this Agreement.
(b) No suit may be brought pursuant to this Section 12.1 unless filed and
served on or before the third anniversary of the Closing Date.
12.2 INDEMNIFICATION BY BUYER.
(a) Buyer shall, to the fullest extent permitted by law, defend, indemnify
and hold harmless Seller, its Affiliates and their respective
officers, directors, employees, agents, successors and assigns (the
"Indemnitees") directly or indirectly, relating to, resulting from or
arising out of, from and against the following:
(i) The breach by Buyer of any representation or warranty made
by Buyer and contained in this Agreement; and
(ii) The failure of Buyer to fulfill, satisfy, and discharge any
of its obligations or covenants under this Agreement.
(b) No suit may be brought pursuant to this Section 12.2 unless filed and
served on or before the third anniversary of the Closing Date.
12.3 ACCESS AND COOPERATION. Both Seller and Buyer shall make available to each
other as reasonably requested all information, records and documents
relating to all Losses and shall preserve all such information, records and
documents until the termination of any claim and the resolution of any
issue with respect to indemnification hereunder relating to such claim.
Each of Seller and Buyer shall also make available to the other, as
reasonably requested, its personnel (including technical personnel), agents
and other representatives who are responsible for preparing or maintaining
information, records or other documents, or who may have particular
knowledge, with respect to any claim. Each of Buyer and Seller shall also
cooperate with the other in attempting to minimize the Losses subject to
indemnification by pursuing and/or assigning to the other any rights of
contribution or right to reimbursement through contractual or other
arrangements.
-21-
12.4 DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
(a) "AFFILIATE" means, as to Buyer or Seller, any person or entity that
controls, is controlled by, or is under common control with, Buyer or
Seller, respectively.
(b) "INDEMNITEE" shall mean any Person which may be entitled to seek
indemnification pursuant to the provisions of Sections 12.1 or 12.2
hereof.
(c) "INDEMNITOR" shall mean any Person which may be obligated to provide
indemnification pursuant to Sections 12.1 or 12.2 hereof.
(d) "LOSSES" shall mean any and all direct or indirect demands, claims,
payments, obligations, actions or causes of action, assessments,
administrative fines or penalties, damages, losses, liabilities, costs
and expenses paid or incurred (whether or not known or asserted prior
to the date hereof, fixed or unfixed, conditional or unconditional,
xxxxxx or inchoate, liquidated or unliquidated, secured or unsecured,
accrued, absolute, contingent or otherwise), including without
limitation any legal or other expenses reasonably incurred in
connection with investigating or defending any such claims or actions;
provided, however, that Losses shall be net of any insurance proceeds
received by an Indemnitee from an insurance company on account of such
Losses, and net of any reimbursement of Losses received by an
Indemnitee pursuant to a right of contribution or to a contractual or
other arrangement.
12.5 DEFENSE OF INDEMNIFIED CLAIMS. In the event that an Indemnitee seeks
indemnification pursuant to this Article 12, it shall give written notice
to the Indemnitor within ten (10) days of becoming aware that an event or
circumstance would give rise to the claim of indemnification; provided,
that failure to give such notice shall not bar the Indemnitee's rights of
indemnification if the Indemnitor does not suffer actual prejudice from
such failure. Except as provided below, in the event that the claim for
indemnification arises from a claim of a third party asserted against the
Indemnitee, the Indemnitor may assume the defense of such claim upon
delivering to the Indemnitee a written notice acknowledging that it will
indemnify the Indemnitee against the claim pursuant to this Article;
provided that, in the event that Indemnitee reasonably believes there
exists a conflict between it and Indemnitor in any such litigation,
Indemnitee may be represented by counsel at its own expense. The
Indemnitor may settle such third-party claim unless the settlement involves
the entry of injunctive relief against the Indemnitee or the Property, in
which case such settlement is subject to the Indemnitee's consent.
ARTICLE 13: INTERPRETATION OF AGREEMENT
13.1 GOVERNING LAW. The validity and effect of this Agreement shall be governed
by the laws of the State of Colorado.
13.2 HEADINGS. The article and section headings in this Agreement are for
convenience only and shall not be used in its interpretation or considered
part of this Agreement.
13.3 EFFECT OF AGREEMENT. No provision of this Agreement shall be altered,
amended, revoked or waived except by an instrument in writing signed by the
party to be charged with such amendment, revocation or waiver. This
Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns.
13.4 SURVIVAL. The provisions of this Agreement which are specifically provided
to survive the Closing and/or the termination of this Agreement,
respectively, shall survive the Closing and/or termination of this
Agreement.
-22-
13.5 PRIOR AGREEMENT. Buyer and Seller hereby acknowledge and agree that:
(a) PRIOR AGREEMENT. Buyer and Seller previously entered into the
Purchase and Sale Agreement (the "Prior Agreement") dated March 27,
1996, relating to the sale of the Property from Seller to Buyer and
Buyer paid an xxxxxxx money deposit of $500,000 to Seller under the
Prior Agreement.
(b) STATUS OF PRIOR AGREEMENT. Buyer failed to close the purchase of the
Property under the Prior Agreement, and, pursuant to SECTION 8.1(a)(i)
of the Prior Agreement, Seller terminated the Prior Agreement and
retained the $500,000 as liquidated damages. As a result of said
termination:
(i) The Prior Agreement has terminated.
(ii) Buyer has no interest under the Prior Agreement in the
Property or in the $500,000 paid to Seller under the Prior
Agreement and hereby releases any interest therein which
Buyer might otherwise have had.
(iii) The $500,000 paid to Seller under the Prior Agreement is the
property of Seller and shall not be applicable to any
obligation of Buyer under this Agreement (including without
limitation any obligation under Section 8.3(i), including
without limitation any such obligation which also was or
might have been an obligation of Buyer under the Prior
Agreement), and shall not satisfy or be applied to satisfy
or reduce or otherwise be credited against any obligation of
Buyer under this Agreement (including without limitation any
obligation under Section 8.3(i), including without
limitation any such obligation which also was or might have
been an obligation of Buyer under the Prior Agreement).
(c) EFFECT OF PRIOR AGREEMENT. The Prior Agreement shall not be
considered in interpreting or applying any provision of this
Agreement.
ARTICLE 14: MISCELLANEOUS
14.1 TIME. Time is of the essence of this Agreement. If any of the conditions
or obligations in this Agreement are not fulfilled timely by Buyer or
Seller (including but not limited to the execution and delivery of the
Closing Documents on or before the Closing Date), then Buyer or Seller, as
the case may be, shall be deemed to be in default hereunder, and the non-
defaulting party may, at its option, exercise its rights under this
Agreement, including without limitation, Article 8.
14.2 NO BROKERS. Seller hereby represents and warrants to Buyer that it has not
been represented or assisted by any broker or similar person in connection
with the transaction contemplated herein. Seller shall indemnify and hold
harmless Buyer from and against any and all claims for commissions, fees,
or other compensation payable to any real estate broker, agent, salesman,
finder, or other person on account of any implied or express commitment or
undertaking made by Seller as a result of the consummation of the
transaction contemplated herein.
Buyer hereby represents and warrants to Seller that it has not been
represented or assisted by any broker or similar person in connection with
the transaction contemplated herein. Seller acknowledges that The Anschutz
Corporation has provided advice and assistance in connection with the
transactions contemplated by this Agreement. Buyer's arrangements with The
Anschutz Corporation are covered by a separate agreement, and Buyer is
responsible for any payments thereunder. Buyer shall indemnify and hold
harmless Seller from and against any and all claims for commissions, fees,
or other compensation payable to any real estate broker, agent, salesman,
finder, or other person on account of any implied or
-23-
express commitment or undertaking made by Buyer as a result of the
consummation of the transaction contemplated herein.
14.3 NO ASSIGNMENT. The qualifications and reputation of Buyer are material
inducements to Seller in entering into this Agreement. Therefore, Buyer
may not assign its rights or delegate its duties under this Agreement
without the prior written consent of Seller. Seller's consent hereunder
shall not be unreasonably withheld.
14.4 NOTICES. All notices and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given when actually
received if delivered personally, by commercial carrier, by successful
telecopy transmission, or by first class mail, registered or certified,
return receipt requested. Notices to Seller shall be given at the
following addresses:
Union Pacific Railroad
0000 XxXxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
and
XXXXX, XXXXXX & XXXXXX LLP
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
Notices to Buyer shall be given at the following addresses:
The Denver Arena Company, LLC
000 Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Project Executive
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
and
Ascent Entertainment Group, Inc.
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: President
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
-24-
and
XXXXX & XXXXXXX L.L.P.
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
Either party may change its addresses for notices from time to time by
notice to the other party.
14.5 NO RECORDING. Buyer shall not record this Agreement or any evidence
thereof. Recording this Agreement or any evidence hereof shall constitute
a material default by Buyer entitling Seller to all remedies available at
law or in equity. In the event that this Agreement is terminated without
the Closing occurring hereunder, Buyer shall, upon Seller's request,
promptly execute and deliver to Seller a quitclaim deed conveying to Seller
any interest Buyer may have in any of the Property hereunder and any
additional documents that Seller shall from time to time reasonably request
hereunder to relinquish any interest in the Property which Buyer may have
hereunder. Buyer shall be liable to Seller for any damages suffered by
Seller on account of any recording of this Agreement and on account of any
failure of Buyer to execute and deliver such quitclaim deed and other
documents required hereby, including consequential damages. Buyer's
obligations under this Section 14.5 shall survive the termination of this
Agreement.
14.6 DAYS. As used herein, the term "business day" shall mean any day which is
not a Saturday, Sunday, or other day on which banks in Denver, Colorado are
not open for the regular transaction of business. In the event that any
act, event, or performance provided for herein is scheduled or permitted to
occur on a day which is not a business day, the time for the act, event, or
performance to occur shall be extended to the next business day.
14.7 ENTIRE AGREEMENT. This Agreement (together with the Exhibits hereto, and
any additional written agreements entered into contemporaneously and which
provide that they are intended to be in addition to this Agreement)
constitute the entire understanding and agreement of the parties with
respect to the subject matter hereof and thereof and supersede all prior
and contemporaneous agreements or understandings, inducements or
conditions, express or implied, written or oral, between the parties with
respect hereto, including without limitation, that letter agreement between
Buyer and Seller dated February 16, 1995.
14.8 EXECUTION. This Agreement may be executed in counterparts and, when
counterparts of this Agreement have been executed and delivered by both
Buyer and Seller, this Agreement shall be fully binding and effective, just
as if both Buyer and Seller had executed and delivered a single counterpart
hereof. Without limiting the manner in which execution of this Agreement
may otherwise be effected hereunder, execution by either of the parties may
be effected by facsimile transmission of a signature page hereof executed
by such party. If any party effects execution in such manner, such party
shall also promptly deliver to the other party the counterparts physically
signed by such party, but the failure of such party to do so shall not
invalidate the execution hereof effected by facsimile transmission.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed it as
of this day and year first above written.
-25-
SELLER:
SOUTHERN PACIFIC TRANSPORTATION
COMPANY, a Delaware corporation
By: /s/ XXXX XXXXX
-------------------------------------
Title: AVP/GM
-------------------------------------
BUYER:
THE DENVER ARENA COMPANY, LLC, a Colorado
limited liability company
By: Ascent Arena Corporation, a Delaware
corporation, a Member
By: /s/ XXXXX X. XXXXXX, III
--------------------------------
Title: EVP
--------------------------------
-26-
EXHIBIT "H"
TERMS SHEET
Environmental Terms
Southern Pacific Transportation Company ("SP") and
Denver Arena Company, LLC ("DAC")
1. Contamination. Proposal relates to contamination now existing on
the Property (the "Existing Contamination"). Contamination caused by activities
after the closing (the "New Contamination") will be the responsibility of DAC.
The Existing Contamination includes any part of the existing tar and related
contamination lying on the Elitch's property, immediately across the mainline
from the Arena footprint, which hereafter migrates onto the Property. The New
Contamination includes contamination from any source other than the Existing
Contamination.
2. CONSTRUCTION UNDER VCUP.
a. INCREMENTAL COSTS. SP pays for incremental costs of
construction of Arena and the other improvements specifically provided
for in the VCUP to the extent that the incremental costs are
attributable to Existing Contamination. SP has no obligation for
incremental costs incurred in connection with any other construction.
b. OTHER LIABILITIES. SP will indemnify DAC against
liabilities arising from Existing Contamination as a result of
construction of Arena and other improvements specifically provided for
in the VCUP.
c. TIME LIMITS. SP's obligation for incremental costs and
other liabilities arising from construction of Arena ends on first to
occur of (i) completion of Arena and (ii) three years after Closing
(as extended by force majeure affecting physical construction). SP's
obligation for incremental costs and other liabilities for
construction on other buildings provided for in the VCUP ends on first
to occur of (i) completion of each building and (ii) two years after
completion of Arena.
d. COST DETERMINATION. Determination of incremental costs will
be through allocation arrangement. SP and DAC will together select
environmental project manager responsible for making those
environmental determinations affecting construction and allocating
costs of construction as provided above. SP and DAC will work
together to determine most efficient and cost-effective means for
integrating environmental work with regular construction work and to
provide guidelines, where applicable, for the allocation of costs.
e. EXTENSION OF VCUP. SP will be responsible to obtain
extension for completion of construction under VCUP for the period
33
required for the completion of the Arena, as reasonably estimated by
DAC and SP, or if a longer period is available, for such longer
period. DAC will cooperate with SP's efforts to get extension.
Extensions thereafter will be responsibility of DAC. SP will
cooperate with DAC's efforts to get subsequent extensions.
f. EXPIRATION OF VCUP. SP's obligations under Paragraph 2
shall survive the expiration of the VCUP; provided that if the VCUP
expires before SP's obligations would otherwise end pursuant to
Xxxxxxxxx 0x, the SP shall not be responsible for any increased
incremental costs which result from the expiration of the VCUP.
3. OTHER COSTS AND LIABILITIES ARISING FROM EXISTING CONTAMINATION.
These obligations may be applicable at the same time that Paragraph 2
obligations are applicable. To the extent of any such overlap, the Paragraph 2
obligations will control.
a. GROUNDWATER MONITORING. Paid by DAC after initial round of
sampling, which will be paid by SP. Monitoring costs not included as
shared costs under Paragraph 3b.
b. SHARED COSTS. Response costs and third party liability are
shared by parties through 2023. First $25,000 in any year paid by
DAC. Sharing ratio is 80% SP--20% DAC through 2003. Thereafter, SP's
percentage goes down, and DAC's percentage goes up, 3% per year.
E.g., 2004 is 77% SP -- 23% DAC, 2005 is 74% SP -- 26% DAC. $25,000
deductible paid by DAC is credited against DAC's share for that year
but SP will not have any responsibility for any part of $25,000
deductible. Sharing ratio, including $25,000 deductible, for any year
applies to all costs incurred in that year, except that, if a ground
water remediation program is ordered by CDPHE, EPA, or other
governmental agency or by a court or is agreed to by SP and DAC, the
sharing ratio and deductible for the costs of the ground water
remediation program shall be determined as if all of the costs of the
ground water remediation program were incurred in the year the order
is issued or the agreement is signed.
c. AFTER 2023. SP relieved of all further costs and liability.
d. CHANGE OF USE. SP's responsibilities have been determined
on the assumption that the Property will be used as provided in the
VCUP. If the use of the Property for the Arena terminated, SP's
obligations end. If there is any change in use that increases
environmental costs or liability, DAC will be responsible for the
increase in the environmental costs and liability resulting from the
change in use (including both the costs and liability specifically
attributable to the changed use and any increase in costs and
liability attributable to the part of the Property not included in the
changed use but which result from the changed use). SP would continue
to be responsible (in accordance with Paragraph 3b) for its share of
the costs of the
34
project described in the VCUP to the extent such costs were not an
incremental cost attributable to the change in use.
e. CONSTRUCTION AFTER TIME LIMITS. SP will have no
responsibility for the incremental environmental costs of construction
of improvements provided for in the VCUP to the extent that the
construction occurs after the time limits provided in Paragraph 2c.
Any such construction done in accordance with the VCUP will not be a
change in use under Paragraph 3d.
f. MANAGEMENT. DAC will manage responses to environmental
events. SP will have sign-off right on any response and will have
right to be involved.
g. INSURANCE. SP will cooperate with DAC at no cost or
obligation to SP in exploring possible insurance coverage against
these costs and liabilities. Any insurance will waive subrogation
against SP.
4. LIABILITY OF PSCO.
a. Parties will cooperate with each other in connection with
actions they or either of them may bring against PSCo or any other
PRP.
b. SP free to bring suit against PSCo after all building
permits required for the Arena have been issued and foundation work
has been completed.
c. In any joint suit to recover against PSCo (of other PRP),
parties will share recovery (in excess of litigation expenses) first
to SP to reimburse SP for costs of VCUP and VCUP compliance and then
in proportion in which parties bore costs.
35
