1
Exhibit 10.2
AMENDMENT NO. 1
TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT (this "Amendment") is
entered into as of March 22, 2001, among The Basketball Club of Seattle, LLC, a
Washington limited liability company ("Buyer"), The Xxxxxxxx Group, Inc., a
Delaware corporation ("Xxxxxxxx"), Xxxxxxxx Media Group, Inc. (formerly AK Media
Group, Inc.), a Washington corporation ("AK Media"), SSI, Inc., a Washington
corporation ("SSI") and T.C. Aviation, Inc., an Oregon corporation ("T.C.
Aviation") (Xxxxxxxx, AK Media, SSI and T.C. Aviation, collectively, the
"Sellers") and Full House Sports & Entertainment, Inc., a Washington corporation
("Full House").
BACKGROUND
A. Buyer and the Sellers are parties to that certain Asset Purchase
Agreement dated as of January 11, 2001 (the "Agreement"), pursuant to which
Buyer will buy from the Sellers certain assets more particularly described
therein. The Closing of the Agreement is contingent upon certain conditions
occurring by the Closing date. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Agreement.
B. Section 8.1(b) provides that either Buyer or the Sellers may
terminate the Agreement by written notice if the Closing has not occurred by
March 31, 2001 (the "Termination Time").
C. Buyer and Sellers wish to extend the Termination Time to allow more
time for the closing conditions to occur and to amend the Agreement to reflect
the change.
D. Buyer and Sellers wish to provide that accounts receivable related to
the operation of the Teams and arising prior to the Closing Date shall be
assigned to Buyer and that accounts payable related to the operation of the
Teams and arising prior to the Closing Date shall be assumed by Buyer, in each
case as more particularly provided for herein.
E. Buyer and Sellers wish to provide for the resolution of certain
potential instances of noncompliance with NBA rules and regulations regarding
camera placement.
F. Buyer and Sellers wish to add Full House as a party to the Agreement,
and Full House wishes to become a party to the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment to Section 8.1(b) of the Agreement. Section 8.1(b) of the
Agreement is hereby deleted and replaced in its entirety with the following:
"(b) Buyer or Sellers may terminate this Agreement by
written notice if: (i) the Closing has not occurred by April 2,
2001; provided, however, that the right to terminate this
Agreement under this Section 8.1(b)(i) shall not be
2
available to any Party whose action or failure to act has been a
principal cause of or resulted in the failure of the Closing to
occur on or before such date and such action or failure to act
constitutes a breach of this Agreement; (ii) there shall be a
final nonappealable order of a court of competent jurisdiction in
effect preventing consummation of the transactions contemplated
by this Agreement or (iii) there shall be any statute, rule,
regulation or order enacted, promulgated or issued or deemed
applicable to the transactions contemplated by this Agreement by
any Governmental Body that would make consummation of the
transactions contemplated by this Agreement illegal;"
2. Buyer Assumption of Basketball Related Accounts Payable.
a. Section 1.2(a) of the Agreement is hereby amended to provide
that Buyer shall assume the obligation to pay all Basketball Payables (as
defined below).
x. Xxxxxxx and Buyer agree that, notwithstanding Section 2(a) of
this Amendment and the provisions of Section 7.3(a)(ii) of the Agreement, Buyer
shall not be obligated under Section 7.3(a)(ii) of the Agreement or otherwise to
indemnify any Seller Indemnified Persons for any Basketball Payables.
x. Xxxxxxx agree, jointly and severally, to reimburse Buyer for
the amount of any Basketball Payables paid by Buyer (unless Sellers have earlier
paid such amount pursuant to Section 2(d) below). Sellers shall be obligated to
make such payment not later than fifteen (15) days after receiving written
notice of Seller's payment of a Basketball Payable.
x. Xxxxxxx agree, jointly and severally, to pay the amount of any
Basketball Payables within fifteen (15) days of Buyer's request for such
payment; provided that such Basketball Payables would have become due and
payable within thirty (30) days of Buyer's notice to Sellers.
x. Xxxxxxx agree that any failure by Sellers to pay to Buyer any
amounts owing to Buyer pursuant to Sections 2(c) and 2(d) above shall be deemed
a Loss suffered by Buyer for which Sellers shall, pursuant to Section 7.2(a)(i)
of the Agreement, indemnify Buyer; provided that such indemnification obligation
shall not be subject to the Basket Amount and Seller Cap of Section 7.2(a)(ii)
of the Agreement.
f. "BASKETBALL PAYABLES" shall mean all accounts payable of
Sellers (or any of them) that (i) have arisen prior to the Closing, (ii) relate
directly to the operation of the Teams and (iii) are not within the definition
of Assumed Obligations prior to giving effect to this Amendment.
3. Seller Assignment of Basketball Related Accounts Receivable.
a. Section 1.1(c)(ii) of the Agreement is hereby amended to
provide that the term "Excluded Assets" shall not include Basketball Receivables
(as defined below).
b. Section 5.3 of the Agreement is hereby amended to provide that
the term "Sellers' Receivables" shall not include Basketball Receivables.
-2-
3
c. Buyer agrees to pay to Sellers the amount of any Basketball
Receivables collected by Buyer. Buyer shall be obligated to make such payment as
soon as practicable following Buyer's receipt of payment of a Basketball
Receivable; provided, that in the event a Basketball Receivable is paid to Buyer
by check, Buyer shall not be obligated to pay such amount to Sellers until as
soon as practicable following final payment of such check by the payor bank of
such check. Buyer agrees to use the same reasonable best efforts to collect
Basketball Receivables as it employs in its own collection efforts.
d. Buyer agrees that any amount that Buyer is obligated to pay
Sellers under Section 3(c) above, to the extent it is not paid pursuant to the
terms of such Section, shall be deemed a Loss suffered by Buyer for which Buyer
shall, pursuant to Section 7.3(a) of the Agreement, indemnify Sellers; provided
that such indemnification obligation shall not be subject to the basket cap
limitations of Section 7.3(b) of the Agreement.
e. "BASKETBALL RECEIVABLES" shall mean all accounts receivable of
Sellers (or any of them) prior to the Closing that (i) relate directly to the
operation of the Teams and (ii) are included in Schedule 5.3 to the Agreement
prior to giving effect to this Amendment.
4. Key Arena Compliance.
a. On March 1, 2001, Buyer sent Sellers a letter claiming, among
other things, that Seller was in breach of their representation and warranty set
forth in Section 2.8 of the Purchase Agreement, which provides that "To Seller's
knowledge, Sellers are in material compliance with all applicable ... rules and
regulations of the Associations relating to or affecting the Businesses or the
Purchased Assets." Buyer alleged that Sellers were not in compliance with Rule
VII (A)(8)(e)(1)(a) of the National Basketball Association ("NBA") Operations
Manual concerning the placement of television cameras in the Key Arena. Sellers
have denied and continue to deny that said representation and warranty was
false. In the event that the NBA agrees in writing with Buyer that the placement
in Suite No. 38 or 39 of Key Arena of the so-called "center court" television
cameras satisfies the NBA requirement that beginning with the 2001-2002 NBA
Season such cameras must be relocated to a location that complies with the NBA
rules and regulations regarding camera location:
(1) Buyer stipulates that the notice of March 1, 2001
shall be withdrawn and shall be of no effect;
(2) Sellers agree that they shall, effective upon the
Closing, transfer to Buyer any and all of Sellers' rights to use or license
Suites Nos. 38 and 39, and Sellers shall execute any document or instrument of
assignment as Buyer shall reasonably request in order to effect such assignment;
and
(3) Sellers and Buyer agree that Sellers shall have the
right to license a single Open Suite (as defined below) in Key Arena mutually
agreed upon by Sellers and Buyer (the "SELLERS SUITE") for a period equal to the
Remaining Suite 39 Period (as defined below) on terms under which such suite
could be licensed to unrelated third parties and Sellers shall enter into
Buyer's standard form of suite license agreement with respect to the Sellers
Suite. "OPEN SUITE"
-3-
4
shall mean a suite in Key Arena that is not at such time governed by an
effective suite license agreement or otherwise being licensed by any party, but
shall not include any suite that is an "owner's suite." "REMAINING SUITE 39
PERIOD" shall mean the remaining term of the suite license agreement governing
the license of Suite No. 39 as of the date of the Agreement.
5. Exclusive Radio Broadcast Agreement. On March 1, 2001, Buyer sent
Sellers a letter claiming, among other things, that Sellers were in breach of
their representation and warranty set forth in Section 2.12(b) of the Purchase
Agreement, which provides that "Any agreement, pursuant to the Businesses that
is between any Seller and other Seller or Affiliate of a Seller has material
terms that are not materally more or less favorable to the Businesses than terms
that would have been obtained as a result of `arms length' bargaining between
unrelated parties." Buyer alleged that the contract to be assumed by Buyer as
part of the acquisition between KJR Radio and Full House Sports and
Entertainment violated the referenced representation and warranty. Sellers have
denied and continue to deny that said representation and warranty was false.
Buyer stipulates that the notice of March 1, 2001 described in this Section 5 is
hereby withdrawn and of no effect.
6. Amendment of Schedule 1.1(b)(v) to the Agreement (Assumed Contracts).
Buyer and the Sellers agree that Schedule 1.1(b)(v) to the Agreement is hereby
amended to remove the following agreements:
a. Exclusive Radio Broadcast Clearance & Carriage Agreement
(KJR-AM Agreement) between KJR-AM and Full House Sports and Entertainment
b. The following, and any other, agreements relating to the
Aircraft:
AGREEMENT PARTIES DATE
------------------------ ------------------------------- ---------------------
Aviation Hull & With United States Aircraft
Liability insurance Insurance Group and American
policies Home Assurance Company
------------------------ ------------------------------- ---------------------
Aircraft Lease TC Aviation, Inc. and AK
Media Group, Inc.
------------------------ ------------------------------- ---------------------
Boeing 727 Debt
Agreements
------------------------ ------------------------------- ---------------------
Security Agreement Between Keycorp Leasing, The Dated as of
Xxxxxxxx Group, and TC February 13, 1998
Aviation, Inc.
------------------------ ------------------------------- ---------------------
Aircraft Addendum Between Keycorp Leasing, The Dated as of
Xxxxxxxx Group, and TC February 13, 1998
Aviation, Inc.
------------------------ ------------------------------- ---------------------
Assumption Agreement Between Keycorp Leasing, The Dated as of
Xxxxxxxx Group, and TC February 13, 1998
Aviation, Inc.
------------------------ ------------------------------- ---------------------
Amendment to Security Between Keycorp Leasing, The Dated as of
Agreement Xxxxxxxx Group, and TC February 13, 1998
Aviation, Inc.
------------------------ ------------------------------- ---------------------
-4-
5
------------------------ ------------------------------- ---------------------
Borrower By TC Aviation, Inc. Dated as of
Acknowledgement February 13, 1998
(Certificate of
Acceptance)
------------------------ ------------------------------- ---------------------
Promissory Note No. 1 Between Keycorp Leasing, The Dated as of
(Purchase) Xxxxxxxx Group, and TC February 13, 1998
Aviation, Inc.
------------------------ ------------------------------- ---------------------
Promissory Note No. 2 Between Keycorp Leasing, The Dated as of
(Upgrade) Xxxxxxxx Group, and TC February 13, 1998
Aviation, Inc.
------------------------ ------------------------------- ---------------------
Amendment to Between Keycorp Leasing, The Dated as of October
Promissory Note No. 2 Xxxxxxxx Group, and TC 30, 1998
(Upgrade) Aviation, Inc.
------------------------ ------------------------------- ---------------------
Third Amendment to Between Keycorp Leasing, The Dated as of
Promissory Note 2. Xxxxxxxx Group, and TC December 1998
Aviation, Inc.
------------------------ ------------------------------- ---------------------
7. Removal of Aircraft-related Provisions. The closing conditions in
Sections 6.1 and 6.2 of the Agreement are hereby amended to remove the closing
conditions relating to the Aircraft Purchase Agreement and the Aircraft
Transition Lease.
8. Addition of Full House Sports and Entertainment as a Party. The
Parties agree that Full House shall be a party to the Agreement as amended by
this Amendment and included in the definition of "Sellers" thereunder, the same
as if Full House had executed the Agreement on the original date of execution of
the Agreement.
9. Removal of T.C. Aviation as a Party. The Parties agree that T.C.
Aviation shall be removed as a party to the Agreement as amended by this
Amendment and shall not be included in the definition of "Sellers" thereunder.
10. Governing Law; Counterparts. The internal laws of the State of
Washington (irrespective of its choice of law principles) will govern the
validity of this Amendment, and this Amendment may be executed in counterparts
each of which shall be deemed an original and all of which shall constitute one
instrument.
11. No Other Modifications. Except as otherwise expressly set forth in
this Amendment, the Agreement shall remain in full force and effect without any
modification thereto. This Amendment shall be deemed a part of the Agreement for
all purposes.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
-5-
6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first written above.
BUYER: THE BASKETBALL CLUB OF SEATTLE, LLC
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman of the Board
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
SELLERS:
THE XXXXXXXX GROUP, INC. XXXXXXXX MEDIA GROUP, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
--------------------------- -------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxxxx
--------------------------- -------------------------------
Title: Co-President Title: Co-President
--------------------------- -------------------------------
FULL HOUSE SPORTS & ENTERTAINMENT, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
---------------------------
Title: Co-President
---------------------------
[AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT]
