EXHIBIT 10.2
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PURCHASE AND SALE AGREEMENT
among
ASCENT ENTERTAINMENT GROUP, INC.,
ASCENT SPORTS HOLDINGS, INC.,
LIBERTY DENVER ARENA LLC
and
EPL, LLC and
EPL II, LLC
Dated as of June __, 1999
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS........................................................................ 3
1.1 Definitions................................................................................... 3
ARTICLE II. PURCHASE AND SALE.................................................................. 18
2.1 AEG Ownership Interests....................................................................... 18
2.2 HC Ownership Interests........................................................................ 18
2.3 LLC-II Membership Interest.................................................................... 18
2.4 Ascent Arena Company Membership Interests..................................................... 18
2.5 LLC-I Nuggets LP Partnership Interest......................................................... 19
2.6 Avalanche Membership Interest................................................................. 19
2.7 Purchase Price................................................................................ 19
ARTICLE III. COVENANTS OF SELLER................................................................ 19
3.1 Compliance with Contracts and Applicable Law.................................................. 19
3.2 Conduct of Business in the Ordinary Course.................................................... 20
3.3 Preservation of Business...................................................................... 22
3.4 Maintenance of Insurance Coverage and Certain Policies........................................ 22
3.5 Current Information........................................................................... 23
3.6 Post-Closing Funds............................................................................ 23
3.7 Preservation of LDA's Ascent Arena Company Membership Interest................................ 23
ARTICLE IV. CLOSING............................................................................ 24
4.1 Closing....................................................................................... 24
4.2 Closing Deliveries by AEG..................................................................... 24
4.3 Closing Deliveries by Purchasers.............................................................. 25
4.4 Closing Deliveries by LDA..................................................................... 25
4.5 Closing Deliveries by HC...................................................................... 25
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF SELLER........................................... 26
5.1 General Corporate and Partnership Matters..................................................... 26
5.2 Authorized Capital; Title to Shares and Membership Interests.................................. 28
5.3 Financial Statements and Undisclosed Liabilities.............................................. 34
5.4 Litigation.................................................................................... 34
5.5 Employees..................................................................................... 34
5.6 Employee Benefits............................................................................. 35
5.7 Labor and Employment Matters.................................................................. 37
5.8 Intellectual Property......................................................................... 37
5.9 Environmental Compliance...................................................................... 38
5.10 Insurance..................................................................................... 38
5.11 Tax Matters................................................................................... 39
5.12 Sports Entities............................................................................... 45
5.13 Ascent Arena Entities......................................................................... 48
5.14 Pepsi Center.................................................................................. 48
5.15 Mountain Mobile............................................................................... 51
5.16 Development Property.......................................................................... 51
5.17 Advisory Fees................................................................................. 52
5.18 Operations Under Prior Agreement.............................................................. 52
5.19 No Other Representations or Warranties........................................................ 52
ARTICLE V-A. REPRESENTATIONS AND WARRANTIES OF LDA.............................................. 53
5A.1 General Limited Liability Company Matters..................................................... 53
5A.2 Title to LDA's Ascent Arena Company Membership Interest....................................... 54
5A.3 Advisory Fees................................................................................. 54
5A.4 No Other Representations or Warranties........................................................ 54
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF PURCHASERS....................................... 55
6.1 Existence and Power........................................................................... 55
6.2 Governmental Authorization.................................................................... 55
6.3 Non-Contravention............................................................................. 55
6.4 Securities Matters............................................................................ 55
6.5 Advisory Fees................................................................................. 56
6.6 [Intentionally omitted]....................................................................... 56
6.7 Beneficial Ownership.......................................................................... 56
6.8 No Other Representations or Warranties........................................................ 57
6.9 Financial Matters............................................................................. 57
ARTICLE VI-A. REPRESENTATIONS AND WARRANTIES OF NEW ARENA........................................ 57
6A.1 Organization and Standing..................................................................... 57
6A.2 Authorization................................................................................. 58
6A.3 Binding Effect................................................................................ 58
6A.4 Governmental Authorization.................................................................... 58
6A.5 Non-Contravention............................................................................. 58
6A.6 Advisory Fees................................................................................. 58
6A.7 No Other Representations or Warranties........................................................ 58
6A.8 Financial Matters............................................................................. 58
6A.9 Securities Matters............................................................................ 58
6A.10 Beneficial Ownership.......................................................................... 59
ARTICLE VII. CONDITIONS TO CLOSING.............................................................. 60
7.1 Conditions to Obligations of Purchasers....................................................... 60
7.2 Conditions to Obligations of Seller........................................................... 62
7.3 Conditions to Obligation of LDA............................................................... 64
ARTICLE VIII. INDEMNIFICATION AND DISPUTE RESOLUTION............................................. 64
8.1 Indemnification of Purchasers by Seller....................................................... 64
8.2 Indemnification of Seller..................................................................... 65
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8.3 Indemnification by LDA of New Arena........................................................... 65
8.4 Indemnification of LDA........................................................................ 66
8.5 Procedures for Third-Party Claims............................................................. 66
8.6 Procedures for Non-Third Party Claims......................................................... 67
8.7 Dispute Resolution............................................................................ 67
ARTICLE IX. TERMINATION........................................................................ 68
9.1 Mutual Agreement.............................................................................. 68
9.2 Default by Seller............................................................................. 68
9.3 Default by Purchasers......................................................................... 68
9.4 Failure to Close.............................................................................. 68
9.5 Superior Offer................................................................................ 68
9.6 Effect of Termination......................................................................... 69
ARTICLE X. OTHER AGREEMENTS................................................................... 69
10.1 Further Assurances............................................................................ 69
10.2 Certain Filings............................................................................... 70
10.3 Administration of Accounts.................................................................... 70
10.4 Guarantee of Performance...................................................................... 70
10.5 Taxes......................................................................................... 70
10.6 Employee Benefit Plans........................................................................ 76
10.7 Publicity..................................................................................... 77
10.8 Costs and Expenses............................................................................ 77
10.9 Conditions to Closing......................................................................... 77
10.10 Termination of the Prior Agreement............................................................ 77
10.11 Auction Process............................................................................... 77
10.12 Expense Reimbursement......................................................................... 79
ARTICLE XI. MISCELLANEOUS...................................................................... 79
11.1 Notices....................................................................................... 79
11.2 Amendments; No Waivers........................................................................ 81
11.3 Successors and Assigns........................................................................ 82
11.4 Governing Law................................................................................. 82
11.5 Counterparts; Effectiveness................................................................... 82
11.6 Entire Agreement.............................................................................. 82
11.7 Captions...................................................................................... 82
11.8 Severability.................................................................................. 82
11.9 Construction.................................................................................. 82
11.10 Cumulative Remedies........................................................................... 83
11.11 Survival of Representations, Etc.............................................................. 83
11.12 No Third Party Beneficiaries.................................................................. 83
11.13 Revised Deal Structure........................................................................ 83
EXHIBIT "A-1" Arena Land Legal Description
EXHIBIT "A-2" Development Property Legal Description
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EXHIBIT "B" Permitted Liens
EXHIBIT "C" Construction Budget
EXHIBIT "D" Construction Contractor Critical Path Report
SCHEDULE 1.1 Pepsi Center Plans and Specifications
SCHEDULE 3.2(a)(vii) Payable Indebtedness
SCHEDULE 3.2(b)(viii) Prepayable Arena Entities' and Development Property
Indebtedness
SCHEDULE 3.4 Maintenance of Insurance Coverage and Certain Policies
SCHEDULE 3.6 Post Closing Funds
SCHEDULE 5.1(f) Subsidiaries/Advances/Investments
SCHEDULE 5.2(c)(iii) Mountain Mobile Membership Interest
SCHEDULE 5.2(h) Restrictions
SCHEDULE 5.3(a) Financial Statements
SCHEDULE 5.3(b) Undisclosed Liabilities
SCHEDULE 5.4 Litigation
SCHEDULE 5.5(a) Sports Entities' Employees
SCHEDULE 5.5(b) Arena Entities' Employees
SCHEDULE 5.6(a)(i) Employee Plans
SCHEDULE 5.6(a)(iv) Employee Plan Accelerated Vesting
SCHEDULE 5.6(d) Multi-employer Plan Contingent Liability
SCHEDULE 5.7(a) Labor and Employment Matters
SCHEDULE 5.8(a) Intellectual Property
SCHEDULE 5.10(a) Insurance Policies
SCHEDULE 5.10(b) Ascent Arena Entities Insurance Policies
SCHEDULE 5.11(a)(iv) Tax Matters - Affiliated Groups
SCHEDULE 5.11(a)(v) Tax Matters - List of Consolidated, Combined or
Unitary State Income Tax Filings
SCHEDULE 5.11(a)(vi) Tax Matters - Copies of Returns/Audits
SCHEDULE 5.11(a)(viii) Tax Matters - General Disclosures
SCHEDULE 5.11(a)(ix) Tax Matters - Corporate Disclosures
SCHEDULE 5.11(a)(x) Tax Matters - Additional Information
SCHEDULE 5.11(b)(iv) Tax Matters, Partnership Returns/Audits
SCHEDULE 5.11(b)(vii) Tax Matters - General Disclosures
SCHEDULE 5.11(b)(viii) Tax Matters - Partnership Entities
SCHEDULE 5.11(b)(ix) Tax Matters - Partnership Elections/Asset Basis
SCHEDULE 5.12(a) Sports Entities - Absence of Certain Changes
SCHEDULE 5.12(b)(i) Sports Entities' Contracts
SCHEDULE 5.12(e) Affiliate Contracts
SCHEDULE 5.12(f)(i) Sports Entities' Permits
SCHEDULE 5.12(f)(ii) Sports Entities' Required Governmental/Contractual
Approvals/Consents
SCHEDULE 5.12(g) Compliance with Laws
SCHEDULE 5.13(d) Advance Booking Contracts
SCHEDULE 5.13(e) Ascent Arena Entity Contracts
SCHEDULE 5.14(a)(ii) Pepsi Center and Development Property Budget
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SCHEDULE 5.14(b)(iii) Arena Contracts
SCHEDULE 5.14(b)(v) Sale and Servicing Delegation of Duties
SCHEDULE 5.14(c) Arena Accounts
SCHEDULE 5.15(c) Mountain Mobile Compliance with Laws
SCHEDULE 6.7(a) Beneficial Ownership
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PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of June
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__, 1999 (the "Effective Date"), among ASCENT ENTERTAINMENT GROUP, INC., a
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Delaware corporation ("AEG"), ASCENT SPORTS HOLDINGS, INC., a Delaware
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corporation ("HC" and, together with AEG, "Seller"), LIBERTY DENVER ARENA LLC
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("LDA"), a Delaware limited liability company, EPL, LLC, a Missouri limited
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liability company ("New Arena") and EPL II, LLC, a Missouri limited liability
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company ("New Sports") (together with New Arena, "Purchasers" and each
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individually, a "Purchaser").
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RECITALS
A. AEG owns 100% of the capital stock of HC, and HC will own as of
the Closing (as herein defined) 100% of the membership interests of each of LLC-
I and LLC-II.
B. AEG and HC desire to sell to New Arena, and New Arena desires to
purchase from HC, 100% of the membership interests of LLC-II (the "LLC-II
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Membership Interest"), all on the terms and conditions set forth in this
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Agreement.
C. AEG, LDA and Ascent Development Corp. own, in the aggregate, 100%
of the membership interests in Ascent Arena Company, LLC, a Colorado limited
liability company ("Ascent Arena Company") (collectively, "Ascent Arena Company
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Membership Interests," and each individually an "Ascent Arena Company Membership
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Interest"). Ascent Arena Company in turn owns the partially constructed new
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indoor arena and related parking and site improvements (including the
Infrastructure Improvements as defined in the Redevelopment Agreement) currently
under construction on the Arena Land and adjacent property, to be called the
"Pepsi Center", which will be a state of the art sports and entertainment center
with seating for up to 20,000 occupants, depending on the event specific
configuration (the "Pepsi Center").
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D. AEG desires to sell to EPL IV, and EPL IV desires to purchase
from AEG, its Ascent Arena Company Membership Interest, all on the terms and
conditions set forth in this Agreement. LDA desires to sell to New Arena, and
New Arena desires to purchase from LDA, its Ascent Arena Company Membership
Interest, all on the terms and conditions set forth in this Agreement.
E. AEG owns, in the aggregate: (i) a 98.2% limited partnership
interest (the "AEG Nuggets LP Partnership Interest") in The Denver Nuggets
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Limited Partnership, a Delaware limited partnership ("Nuggets LP"), and (ii) a
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50% membership interest (the "AEG Avalanche Membership Interest") in Colorado
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Avalanche, LLC, a Colorado limited liability company ("Avalanche LLC") and will
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own, in the aggregate, indirectly through HC, 100% of the membership interests
of LLC-I (the "LLC-I Membership Interest").
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F. LLC-I owns, in the aggregate, a 1.8% general partnership interest
in Nuggets LP ("LLC-I Nuggets LP Partnership Interest"), and will own, as of the
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Closing, a 50% membership interest in Avalanche LLC (the "LLC-I Avalanche
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Membership Interest").
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G. Nuggets LP owns and operates the professional basketball team
known as the "Denver Nuggets" (the "Nuggets") and holds a franchise and
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membership in the National Basketball Association (the "NBA"). Nuggets LP also
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owns (i) fee title to the real property located in Denver, Colorado on which the
Pepsi Center is currently being constructed, which real property is more
particularly described on Exhibit "X-0" xxxxxxxx xxxxxx (xxx "Xxxxx Xxxx"), and
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(ii) a 1/3 membership interest (the "Mountain Mobile Membership Interest") in
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Mountain Mobile TV Limited Liability Company, a Nevada limited liability company
("Mountain Mobile").
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H. Avalanche LLC owns and operates the professional hockey team
known as the "Colorado Avalanche" (the "Avalanche") and holds a franchise and
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membership in the National Hockey League (the "NHL").
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I. Prior to the Closing, AEG will transfer to HC a 97.2% limited
partnership interest in Nuggets LP and a 49% membership interest in Avalanche
LLC.
J. AEG desires to sell, on the terms and conditions set forth in
this Agreement, (i) to New Sports, and New Sports desires to purchase from AEG,
the portion of the AEG Nuggets LP Partnership Interest that AEG does not
transfer to HC prior to the Closing and (ii) to EPL IV, and EPL IV desires to
purchase from AEG, the AEG Avalanche Membership Interest that AEG does not
transfer to HC prior to the Closing.
K. AEG and HC desire to sell, on the terms and conditions set forth
in this Agreement, to New Sports, and New Sports desires to purchase from HC,
100% of the LLC-I Membership Interest and the portion of the AEG Nuggets LP
Partnership Interest and the AEG Avalanche Membership Interest that AEG
transfers to HC prior to the Closing.
L. Pursuant to Article II hereof, LLC-I will transfer the LLC-I
Nuggets LP Partnership Interest to EPL-III.
M. AEG, New Arena and New Sports have previously entered into a
Purchase and Sale Agreement, made as of April 25, 1999 (the "Prior Agreement"),
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which AEG, New Arena and New Sports desire to terminate in connection with the
execution of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, and the
representations, warranties, covenants and agreements hereinafter set forth, the
parties hereto agree as follows:
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ARTICLE I.
DEFINITIONS
1.1 Definitions. The following terms, as used herein, have the
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following meanings:
"Accounts" means, collectively, (a) the following accounts established
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and maintained pursuant to, and as defined in, the Sale and Servicing Agreement:
(i) Collection Account; (ii) Construction Fund Account; (iii) Debt Service
Coverage Account; (iv) Debt Service Reserve Account; (v) Lease Reserve Account;
(vi) Paying Account; (vii) Capitalized Interest Account; and (vii) the Lockbox
Account (for deposit of funds received pursuant to the Revenue Agreements prior
to transfer of such funds to the Collection Account); (b) the Operating Account
established and maintained pursuant to the Operating and Management Agreement;
and (c) any Subservicing Account established by Ascent Operating Company as
subservicer of the Sale and Servicing Agreement pursuant to the Operating and
Management Agreement.
"ADC Shares" has the meaning set forth in Section 5.2(a)(i).
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"Advance Booking Contracts" has the meaning set forth in Section
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5.13(d).
"AEG" has the meaning set forth in the introductory paragraph of this
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Agreement.
"AEG Avalanche Membership Interest" has the meaning set forth in
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Recital E.
"AEG Nuggets LP Partnership Interest" has the meaning set forth in
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Recital E.
"AEG Purchase Price" has the meaning set forth in Section 2.7.
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"Affiliate" means, with respect to any Person, any Person directly or
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indirectly controlling, controlled by or under direct or indirect common control
with such other Person. When used with reference to any natural Person, the term
"Affiliate" also includes (i) such Person's spouse, parents and descendants
(whether by blood or adoption, and including stepchildren), the spouses of such
Persons, and any relative of such Person's spouse who has the same home as such
Person, and (ii) any trust or other estate in which such Person has a
substantial beneficial interest or as to which such Person serves as trustee or
in a similar fiduciary capacity.
"Agreement" has the meaning set forth in the introductory paragraph of
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this Agreement.
"Applicable Law" means, with respect to any Person, any current
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domestic or foreign, federal, state or local statute, law, common law,
ordinance, rule, administrative interpretation, regulation, order, writ,
injunction, directive, judgment, decree or other requirement of any Governmental
Authority (including any Environmental Law) applicable to
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such Person or any of its Affiliates or any of their respective properties,
assets, managers, partners, officers, directors, employees, consultants or
agents (in connection with such manager's, partner's, officer's, director's,
employee's, consultant's or agent's activities on behalf of such Person or any
of its Affiliates).
"Xxxxx & Company" means Xxxxx & Company Incorporated.
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"Architect" means Xxxxxxx, Obata & Kassabaum, P.C., a Colorado
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professional corporation.
"Architect Agreement" means the Agreement for Architectural Services,
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dated November 20, 1997, between Architect and Ascent Arena Company with respect
to the Pepsi Center.
"Arena Agreement" means the 1997 Denver Arena Agreement, dated as of
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November 12, 1997, by and among Ascent Arena Company, the City, Nuggets LP and
Avalanche LLC.
"Arena Contracts" means, collectively, (i) the Arena Agreement; (ii)
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the Trust Agreement; (iii) the Operating and Management Agreement; (iv) the Sale
and Servicing Agreement; (v) the Construction Contract; (vi) the Indenture;
(vii) the Ascent Entertainment Assignment; (viii) the Security Documents; (ix)
the User Agreements; (x) the Construction Phase Agreement, dated as of July 29,
1998, among the Denver Arena Trust, Ascent Arena Company and the Indenture
Trustee; (xi) the Revenue Agreements; (xii) the Club Seat Agreements; (xiii) the
Ground Lease; (xiv) the Indemnity Agreement, dated as of July 29, 1998, between
Ascent Arena Company and the Denver Arena Trust; (xv) the Levy Concession
Agreement; (xvi) the Xxxxx Concession Agreement; (xvii) the Redevelopment
Agreement; (xviii) the ERA; (xix) the Advance Booking Contracts; (xx) the
Architect Agreement; (xxi) the Conoco Agreement; (xxii) the Denver Post
Agreement; and (xxiii) the Contracts listed on Schedule 5.13(e) attached hereto.
"Arena Land" has the meaning set forth in Recital G.
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"Arena Operating Company" means Ascent Arena Operating Company, LLC, a
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Colorado limited liability company.
"Ascent Arena Company" has the meaning set forth in Recital C.
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"Ascent Arena Company Membership Interests" has the meaning set forth
-----------------------------------------
in Recital C.
"Ascent Arena Entities" means the following entities, collectively,
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Ascent Arena Company, LLC-II, Arena Operating Company, and Denver Arena Trust.
"Ascent Development Corp." means Ascent Arena and Development
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Corporation, a Delaware corporation.
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"Ascent Entertainment Assignment" means the Ascent Entertainment
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Assignment of Certain Payments, dated as of July 29, 1998, among AEG, Denver
Arena Trust, Ascent Arena Company and the Indenture Trustee.
"Ascent Operating Agreement" means the operating agreement entered
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into on November 14, 1997, among the then members of Ascent Arena Company.
"Ascent Sports" means Ascent Sports, Inc., a Delaware corporation.
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"Assets" means, with respect to any Person, all of such Person's
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assets, properties, business, goodwill and rights of every kind and description,
real and personal, tangible and intangible, wherever situated and regardless of
whether reflected on the Financial Statements delivered to Purchasers pursuant
to this Agreement.
"Auction Businesses" has the meaning set forth in Section 10.11(a).
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"Authorizations" has the meaning set forth in Section 5.9(a).
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"Avalanche" has the meaning set forth in Recital H.
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"Avalanche Balance Sheet" means the unaudited balance sheet of
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Avalanche LLC as of March 31, 1999.
"Avalanche LLC" has the meaning set forth in Recital E.
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"Avalanche Contracts" means all Contracts listed on Schedule 5.5(a)
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and Schedule 5.12(b)(i) attached hereto to which Avalanche LLC is a party or by
which it is bound.
"Balance Sheet Date" means March 31, 1999.
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"Basket" has the meaning set forth in Section 8.1(b).
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"Business" means the business of owning, managing and operating (a)
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the Nuggets and the Mountain Mobile Membership Interest as to Nuggets LP, (b)
the Avalanche as to Avalanche LLC, (c) the Pepsi Center and the Development
Property as to the Ascent Arena Entities, and (d) Ascent Sports as to LLC-I.
"Business Day" means a day other than a Saturday, Sunday or other day
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on which commercial banks in Denver, Colorado or New York, New York are
authorized or required by law to close.
"City" means the City and County of Denver, Colorado.
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"City Consent" means the consent of the City to all transactions
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contemplated by this Agreement which require the approval or consent of the City
pursuant to the Arena Agreement or the agreements creating the City Lien.
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"City Lien" means the subordinate Lien granted by Ascent Arena Company
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to the City on all of Ascent Arena Company's right, title and interest in, to
and under (i) the Luxury Suite License Agreements and the Revenue Agreement
Rights with respect thereto (which Lien was granted by Ascent Arena Company
prior to the conveyance of such agreements and rights by Ascent Arena Company to
the Denver Arena Trust pursuant to the Sale and Servicing Agreement), and (ii)
the Excess Collateral (and all proceeds of the foregoing) in order to secure the
obligations of Ascent Arena Company under the Arena Agreement.
"Closing" has the meaning set forth in Section 4.1.
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"Closing Date" has the meaning set forth in Section 4.1.
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"Code" means the Internal Revenue Code of 1986, as amended.
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"Competing Offer" has the meaning set forth in Section 10.11(a).
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"Conoco Agreement" means the Agreement for Founding Partner,
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Sponsorship and Promotion Rights, dated March 9, 1999, between Conoco, Inc. and
Ascent Arena Company.
"Conoco Lease" means the Lease, dated March 9, 1999, between Conoco,
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Inc. and Ascent Development Corp.
"Construction Account Balance" has the meaning set forth in Section
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5.14(a)(ii).
"Construction Budget" has the meaning given to that term in Section
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5.14(a)(ii).
"Construction Contract" means the Guaranteed Maximum Price Agreement,
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dated as of November 20, 1997, between Ascent Arena Company and the
Construction Contractor.
"Construction Contractor" means M.A. Xxxxxxxxx Company.
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"Construction Fund Account" means the account designated as such
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established and maintained pursuant to the Sale and Servicing Agreement.
"Construction Phase Mortgage" means that certain Fee and Leasehold
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Deed of Trust, Assignment of Rents, Leases, Security Agreement and Fixture
Filing from Nuggets LP, as fee owner, and Ascent Arena Company, as ground lessee
and owner of the improvements on the Property, to the Public Trustee of the City
and County of Denver, for the benefit of the Denver Arena Trust, as assigned and
pledged to the Indenture Trustee, encumbering Nuggets LP's fee interest and
Ascent Arena Company's leasehold interest in the Property under the Ground Lease
and the Ascent Arena Company's fee interest in the Arena.
"Contract" means any written or oral contract, agreement, lease, plan,
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instrument or other document, commitment, arrangement, or undertaking that is
binding on any Person or its property under Applicable Law.
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"Coors Agreement" means the Agreement for Founding Partner Rights,
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Sponsorship and Promotion, dated as of June 1, 1998, between Coors Brewing
Company and Ascent Arena Company, as amended and restated on July 29, 1998.
"Corporate Entities" (individually, a "Corporate Entity") means Ascent
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Development Corp. and Ascent Sports.
"Damages" means all actual losses, damages, costs, expenses,
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liabilities, judgments, awards, fines, sanctions, penalties, charges and amounts
paid in settlement, including (i) interest on cash disbursements in respect of
any of the foregoing at the Reference Rate in effect from time to time plus one
percent, compounded quarterly, from the date each such cash disbursement is made
until the Person incurring the same shall have been indemnified in respect
thereof, and (ii) reasonable costs, fees and expenses of attorneys, experts,
accountants, appraisers, consultants, witnesses, investigators and any other
agents of such Person, but in each case net of any tax benefits and any recovery
from any third-party, including, without limitation, insurance proceeds.
"Denver Arena Trust" means the Denver Arena Trust, a Delaware business
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trust created pursuant to the Trust Agreement.
"Denver Post Agreement" means the Agreement for Founding Partner
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Rights, Sponsorship and Promotion, dated November 24, 1998, between The Denver
Post and Ascent Arena Company.
"Designated Representative" has the meaning set forth in Section
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3.2(c).
"Development Property" means the real property more particularly
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described in Exhibit "A-2" attached hereto.
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"Drop Dead Date" has the meaning set forth in Section 9.2.
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"DURA" means the Denver Urban Renewal Authority.
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"Effective Date" has the meaning set forth in the introductory
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paragraph of this Agreement.
"Employee Plan" of a Person means any plan, contract, commitment,
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program, policy, arrangement or practice maintained or contributed to by the
Person and providing benefits to any current or former employee, director or
agent of the Person, or any spouse or dependent of such beneficiary, including,
without limitation, (1) any ERISA Plan, (2) any Multiemployer Plan, (3) any
other "employee benefit plan" (within the meaning of Section 3(3) of ERISA), (4)
any profit-sharing, deferred compensation, bonus, stock option, stock purchase,
stock appreciation rights, phantom stock, restricted stock, other stock-based
pension, retainer, consulting, retirement, severance, welfare or incentive plan,
contract, commitment, program, policy, arrangement or practice and (5) any plan,
contract, commitment, program, policy, arrangement or practice providing for
"fringe benefits" or perquisites, including, without limitation, benefits
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relating to automobiles, clubs, vacation, child care, parenting, sabbatical or
sick leave and medical, dental, hospitalization, life insurance and other types
of insurance.
"Employee Plan Event" means any of the following:
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(i) "reportable event" (within the meaning of Section 4043 of
ERISA) with respect to any ERISA Plan for which the requirement of notice to the
PBGC has not been waived by regulation;
(ii) the failure to meet the minimum funding standard of Section 412
of the Code with respect to any ERISA Plan (whether or not waived in accordance
with Section 412(d) of the Code) or the failure to make by its due date a
required installment under Section 412(m) of the Code with respect to any ERISA
Plan or the failure to make any required contribution to a Multiemployer Plan;
(iii) the provision by the administrator of any ERISA Plan pursuant
to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a
distress termination described in Section 4041(c) of ERISA;
(iv) the withdrawal from any ERISA Plan during a plan year by a
"substantial employer" as defined in Section 4001(a)(2) of ERISA resulting in
liability pursuant to Section 4062(e) or Section 4063 of ERISA;
(v) the institution by the PBGC of proceedings to terminate any
ERISA Plan, or the occurrence of any event or condition which might constitute
grounds under ERISA for the termination of, or the appointment of a trustee to
administer, any ERISA Plan;
(vi) the imposition of liability pursuant to Sections 4064 or 4069
of ERISA or by reason of the application of Section 4212(c) of ERISA;
(vii) the withdrawal in a complete or partial withdrawal (within the
meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there
is any potential liability therefor, or the receipt of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Sections 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Sections 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to
the imposition of fines, penalties, taxes or related charges under Chapter 43 of
the Code or under Sections 409, 502(c), 502(i), 502(l) or 4071 of ERISA in
respect of any such Employee Plan;
(ix) the assertion of a material claim (other than routine claims
for benefits) against any Employee Plan other than a Multiemployer Plan or the
assets of any Employee Plan, or against the Person maintaining or contributing
to such plan in connection with any such plan;
-8-
(x) receipt from the IRS of notice of the failure of any Qualified
Plan to qualify under Section 401(a) of the Code, or the failure of any trust
forming part of any Qualified Plan to fail to qualify for exemption from
taxation under Section 501(a) of the Code; or
(xi) the imposition of a lien pursuant to Sections 401(a)(29) or
412(n) of the Code or pursuant to ERISA with respect to any ERISA Plan.
"Environmental Laws" means all Applicable Laws relating to the
------------------
protection of human health, safety or the environment including all requirements
pertaining to reporting, licensing, permitting, controlling, investigating or
remediating emissions, discharges, releases or threatened releases of Hazardous
Substances, into the air, surface water, ground water or land, or relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Substances.
"Environmental Liability(ies)" means all Liabilities of a Person
----------------------------
(whether such Liabilities result from obligations imposed directly upon a Person
under Environmental Laws or are owed by such Person to Governmental Authorities
or third parties or otherwise) whether presently in existence or arising
hereafter which arise under or relate to any Environmental Law.
"EPL-III" means EPL III, LLC, a Missouri limited liability company to
-------
be formed prior to the Closing.
"EPL-IV" means EPL IV, LLC, a Missouri limited liability company to be
------
formed prior to the Closing.
"Equity Interests" has the meaning set forth in Section 4.1.
----------------
"ERA" means the Environmental Responsibility Agreement, dated as of
---
November 14, 1997, between Southern Pacific Transportation Company and Ascent
Arena Company, as amended pursuant to the First Amendment and Supplement thereto
dated March 31, 1998.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
-----
the related Regulations, in each case as amended as of the date hereof and as
the same may be amended or modified from time to time. References to titles,
subtitles, sections, paragraphs or other provisions of ERISA and the related
Regulations also refer to successor provisions.
"ERISA Affiliate", as applied to any Person, means (i) any corporation
---------------
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Code of which such Person is a member, (ii) any trade or
business (whether or not incorporated) which is a member of a group of trades or
businesses under common control within the meaning of Section 414(c) of the Code
of which such Person is a member, and (iii) any member of an affiliated service
group within the meaning of Section 414(m) or (o) of the Code of which such
Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of any of
the Purchased Entities shall continue to be considered an ERISA Affiliate within
the meaning of this definition with respect
-9-
to the period such entity was an ERISA Affiliate of any of the Purchased
Entities and with respect to liability arising after such period for which any
of the Purchased Entities could be liable under the Code or ERISA.
"ERISA Plan" of a Person means an "employee pension benefit plan"
----------
(within the meaning of Section 3(2) of ERISA), other than a Multiemployer Plan,
that is covered by Title IV of ERISA or subject to the minimum funding standards
of Section 412 of the Code or Section 302 of ERISA that is maintained by the
Person, to which the Person contributes or has an obligation to contribute or
with respect to which the Person is an "employer" (within the meaning of Section
3(5) of ERISA).
"Financial Advisors" means Xxxxx & Company and Xxxxxxxxxxx Xxxxxxx.
------------------
"Financial Statements" has the meaning set forth in Section 5.3(a).
--------------------
"GAAP" means generally accepted accounting principles applied on a
----
consistent basis.
"Governmental Authority" means any foreign, domestic, federal,
----------------------
territorial, state or local governmental authority, quasi-governmental
authority, instrumentality, court, government or self-regulatory organization,
commission, tribunal or organization or any regulatory, administrative or other
agency, or any political or other subdivision, department or branch of any of
the foregoing.
"Ground Lease" means the Ground Lease, dated as of July 29, 1998,
------------
between Nuggets LP, as lessor, and Ascent Arena Company, as lessee, with respect
to the Arena Land.
"Hazardous Substance" means any chemical substance: (i) the presence
-------------------
of which requires investigation or remediation under any Applicable Law; or (ii)
that is defined as a "hazardous waste," "hazardous substance," "hazardous
material", "solid waste" or similarly designated substance under any Applicable
Law; or (iii) that contains gasoline, diesel fuel or other petroleum
hydrocarbons, polychlorinated biphenols (PCBs) or asbestos.
"HC" has the meaning set forth in the introductory paragraph of this
--
Agreement.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
-------
1976, as amended.
"Income Taxes" means: (A) all Taxes imposed upon or measured by
------------
income, profits or gross receipts; and (B) any interest, penalties or additions
to tax with respect to the items in clause (A).
"Indemnified Party" has the meaning set forth in Section 8.5.
-----------------
"Indemnifying Party" has the meaning set forth in Section 8.5.
------------------
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"Indenture" means the Indenture, dated as of July 29, 1998, by and
---------
between the Denver Arena Trust, as issuer, and the Indenture Trustee.
"Indenture Trustee" means Bank of New York, as indenture trustee of
-----------------
the Indenture.
"Intellectual Property" means any and all (a) trademarks, service
---------------------
marks, trade names, logos, and registrations and applications for registration
thereof; (b) works in which copyright may be claimed and for which registrations
or applications for registration thereof have been made; (c) patents, patent
applications, and related technical information; and (d) intellectual property
rights substantially similar to any of the foregoing; that the Purchased
Entities own or have a right to pursuant to license, sublicense, agreement, or
written permission or otherwise.
"IRS" means the United States Internal Revenue Service or any
---
Governmental Body succeeding to any or all of its functions.
"Key Employees" (individually, a "Key Employee") means any employee
------------- ------------
identified in Schedules 5.5(a) and 5.5(b) attached hereto whose annual
compensation exceeds $100,000.
"Knowledge" of Seller shall refer to whether any of Seller's executive
---------
officers, including, but not limited to, Xxxxxxx Xxxxx (with respect to the
Prior Agreement Effective Date), Xxxxx X. Xxxxxx, XX, Xxxxx X. Xxxxxx, Xxxxxx X.
Xxxxx and Xxxxx Xxxxxxx, had (a) actual knowledge or, (b) in the ordinary course
of performing their duties, should have had knowledge of the matters involved;
"Actual Knowledge" shall mean Knowledge without regard to clause (b).
"LDA" has the meaning set forth in the introductory paragraph of this
---
Agreement.
"LDA Ascent Arena Company Membership Interest" has the meaning set
--------------------------------------------
forth in Section 2.4
"LDA Basket" has the meaning set forth in Section 8.3(b).
----------
"LDA Indemnitee" has the meaning set forth in Section 8.4.
--------------
"LDA Purchase Price" has the meaning set forth in Section 2.7.
------------------
"Levy Concession Agreement" means the Management Agreement, dated as
-------------------------
of April 3, 1998, between Ascent Arena Company and Levy Premium Food Service,
Inc.
"Liabilities" means, with respect to any Person, any debts (including
-----------
interest thereon and any prepayment penalties applicable thereto), liabilities,
claims, or obligations of such Person of any kind, character or description,
whether absolute or contingent, monetary or non-monetary, accrued or unaccrued,
liquidated or unliquidated, secured or unsecured, joint or several, due or to
become due, vested or unvested, executory, determined or determinable; it
-11-
being agreed that unknown liabilities of a nature not required to be disclosed
on a balance sheet prepared in accordance with GAAP shall not be deemed to be
Liabilities.
"Licenses" has the meaning given to that term in Section 5.13(b).
--------
"Lien" means, with respect to any asset, any mortgage, title defect,
----
lien, pledge, charge, security interest, hypothecation, restriction, or
encumbrance of any kind in respect of such asset (other than Permitted Liens).
"LLC-I" means a Delaware limited liability company to be formed by HC
-----
prior to the Closing.
"LLC-I Avalanche Membership Interest" has the meaning set forth in
-----------------------------------
Recital F.
"LLC-I Membership Interest" has the meaning set forth in Recital E.
-------------------------
"LLC-I Nuggets LP Partnership Interest" has the meaning set forth in
-------------------------------------
Recital F.
"LLC-II" means a Delaware limited liability company to be formed by HC
------
prior to the Closing.
"LLC-II Membership Interest" has the meaning set forth in Recital B.
--------------------------
"Loss" has the meaning set forth in Section 8.1.
----
"Luxury Suite License Agreements" means the licenses of luxury suites
-------------------------------
in the Arena which have been granted and are in full force and effect as of the
Prior Agreement Effective Date.
"Material Adverse Effect" means a change in, or effect on, the
-----------------------
operations, financial condition, results of operations, Assets, or Liabilities
of any of the Purchased Entities, the Development Property, the Arena Land or
the Pepsi Center, as applicable, that results in, or could reasonably be
expected to result in, a material adverse effect on, or a material adverse
change in any of (a) Avalanche LLC, or (b) Nuggets LP and the Pepsi Center,
taken as a whole, other than any such material adverse effect, or material
adverse change, resulting from a change, effect, condition, event or
circumstance that (i) affects the NBA and the NBA Member Teams generally, (ii)
affects the NHL and the NHL Member Teams generally, or (iii) arises out of or is
attributable to general economic conditions, whether locally, regionally or
nationally.
"Mountain Mobile" has the meaning set forth in Recital G.
---------------
"Mountain Mobile Membership Interest" has the meaning set forth in
-----------------------------------
Recital G.
"Multiemployer Plan" means a "multiemployer plan" as defined in
------------------
Section 3(37) of ERISA.
"NBA" has the meaning set forth in Recital G.
---
-12-
"NBA Member Teams" means the professional basketball teams holding NBA
----------------
franchises.
"New Arena" has the meaning set forth in the introductory paragraph of
---------
this Agreement.
"New Arena Indemnitee" has the meaning set forth in Section 8.3.
--------------------
"New Sports" has the meaning set forth in the introductory paragraph
----------
of this Agreement.
"NHL" has the meaning set forth in Recital H.
---
"NHL Member Teams" means the professional hockey teams holding NHL
----------------
franchises.
"Non-Income Taxes" means all Taxes other than Income Taxes.
----------------
"Notes" means the revenue-backed notes issued pursuant to the
-----
Indenture.
"Nuggets" has the meaning set forth in Recital G.
-------
"Nuggets Balance Sheet" means the unaudited balance sheet of Nuggets
---------------------
LP as of March 31, 1999.
"Nuggets Contracts" means all Contracts listed on Schedule 5.12(b)(i)
-----------------
attached hereto to which Nuggets LP is a party or by which it is bound.
"Nuggets LP" has the meaning set forth in Recital E.
----------
"Xxxxx Concession Agreement" means the Management Agreement, dated as
--------------------------
of April 3, 1998, between Ascent Arena Company and Xxxxx Entertainment, Inc.
"Operating and Management Agreement" means the Operating and
----------------------------------
Management Agreement, dated as of July 29, 1998, by and between Ascent Arena
Company, as Owner, and Arena Operating Company, as Operator, with respect to the
Pepsi Center.
"Organizational Documents" means (i) for any corporation, the
------------------------
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred shareholders of
such corporation, and any shareholder rights agreement, (ii) for any limited
liability company, the certificate or articles of organization and operating or
equivalent agreement, and (iii) for any general or limited partnership, any
partnership certificate and the partnership agreement.
"Other Bidder" has the meaning set forth in Section 10.11(b).
------------
"Partnership Entity" has the meaning set forth in Section 5.11(b).
------------------
-13-
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
----
succeeding to any or all of its functions under ERISA.
"Pepsi Agreement" means the Agreement for Naming Rights, Pouring
---------------
Rights, Sponsorship and Promotion, dated as of June 2, 1998, by and between
Pepsi-Cola Company, a division of Pepsico, Inc., and Ascent Arena Company, as
amended and restated July 29, 1998.
"Pepsi Center" has the meaning set forth in Recital C.
------------
"Permitted Liens" means (i) the limitations imposed by the NHL
---------------
Constitution, By- Laws, rules and regulations, (ii) the limitations imposed by
the NBA Constitution, By-Laws, rules and regulations, and (iii) the Liens listed
on Exhibit B attached hereto.
---------
"Person" means an individual, corporation, limited liability company,
------
partnership, association, trust, estate or other entity or organization,
including a Governmental Authority.
"Plans and Specifications" means the construction plans and
------------------------
specifications for construction of the Pepsi Center, prepared by the Architect,
as listed on Schedule 1.1 attached hereto.
------------
"Post-Closing Funds" has the meaning set forth in Section 3.6.
------------------
"Post-Closing Period" means any period that begins after the Closing
-------------------
Date and, with respect to any period that begins before the Closing Date and
ends after the Closing Date, the portion of that period beginning after the
Closing Date.
"Pre-Closing Period" means any period that ends on or prior to the
------------------
Closing Date and, with respect to any period that begins before the Closing Date
and ends after the Closing Date, the portion of that period ending on the
Closing Date.
"Principals" (individually, a "Principal") has the meaning set forth
---------- ---------
in Section 6.7(a).
"Prior Agreement" has the meaning set forth in Recital M.
---------------
"Prior Agreement Effective Date" means April 25, 1999.
------------------------------
"Proceedings" has the meaning set forth in Section 5.4(a).
-----------
"Purchase Price" means the AEG Purchase Price and the LDA Purchase
--------------
Price.
"Purchased Entities" means the Sports Entities and the Ascent Arena
------------------
Entities.
"Purchased Entities Employee Plan" means any Employee Plan of any of
--------------------------------
the Purchased Entities.
-14-
"Purchased Entities ERISA Plan" means any ERISA Plan of any of the
-----------------------------
Purchased Entities.
"Purchased Entities Qualified Plan" means any Qualified Plan of any of
---------------------------------
the Purchased Entities.
"Purchaser Indemnitee" has the meaning set forth in Section 8.1(a).
--------------------
"Purchasers" and "Purchaser" have the meanings set forth in the
---------- ---------
introductory paragraph of this Agreement.
"Qualified Plan" of a Person means any ERISA Plan of the Person and
--------------
any other pension, profit sharing or stock bonus plan within the meaning of
Section 401(a) of the Code maintained by the Person or to which the Person
contributes or has an obligation to contribute.
"Redevelopment Agreement" means the Redevelopment Agreement, dated as
-----------------------
of November 1, 1997, between DURA and Ascent Arena Company, as the same may be
amended from time to time.
"Reference Rate" means the per annum rate of interest publicly
--------------
announced from time to time by Bank of America as its prime rate (or reference
rate). Any change in the Reference Rate shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Returns" mean all returns, declarations, reports, forms, claims for
-------
refund, estimates, information returns and statements, including amendments,
required to be filed with or supplied to any Governmental Authority in
connection with any Taxes.
"Return Preparation Standard" means the preparation of a Return and
---------------------------
the reporting of any item thereon in accordance with specific accounting
practices used by the particular Purchased Entity for Returns filed with respect
to the 1996 and 1997 reporting periods (which accounting practices shall
include, without limitation, tax elections, income recognition practices,
expense recognition practices, asset write-off periods and other specific
accounting methods) and to the extent the reporting of any item is not covered
by such accounting practices, in accordance with applicable tax laws.
"Revenue Agreements" means each of (a) the Luxury Suite License
------------------
Agreements; (b) the Pepsi Agreement; (c) the Coors Agreement; (d) the US West
Agreement; and (e) any Subsequent Revenue Agreement (as defined in the
Indenture).
"Revenue Agreement Rights" has the meaning set forth in the Indenture.
------------------------
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
----------------------------
dated as of July 29, 1998, among the Denver Arena Trust, Ascent Arena Company
and the Indenture Trustee.
-15-
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, the regulations promulgated thereunder, and any successor statute.
"Security Documents" means (i) the Construction Phase Mortgage, and
------------------
the assignment and pledge thereof by the Denver Arena Trust to the Indenture
Trustee; (ii) the Pledge and Security Agreement, dated as of July 29, 1998,
between Ascent Arena Company and the Denver Arena Trust, pursuant to which
Ascent Arena Company grants to the Denver Arena Trust a first lien on the Excess
Collateral (as therein defined); (iii) the Pledge and Security Agreement, dated
as of July 29, 1998, between the Denver Arena Trust and the Indenture Trustee,
pursuant to which the Denver Arena Trust grants the Indenture Trustee a first
lien security interest on the Collateral (as therein defined); (iv) the Pledge
of Pledged Contracts, dated as of July 29, 1998, from Ascent Arena Company to
the Denver Arena Trust, and the Assignment of Pledged Contracts, dated as of
July 29, 1998 from the Denver Arena Trust to the Indenture Trustee, together
with all obligor consents delivered in connection therewith; (v) the Collateral
Assignment of Rents, Revenues and Agreements, dated as of July 29, 1998 by
Ascent Arena Company for the benefit of the City; (vi) the Intercreditor
Subordination and Release Agreement Construction Term, dated as of July 29,
1998, among the City, The Denver Arena Trust, the Indenture Trustee and Ascent
Arena Company; (vii) the Ascent Entertainment Assignment; (viii) the Estoppel
Agreement dated as of July 29, 1998 among the City, the Denver Arena Trust and
the Indenture Trustee with respect to the Arena Agreement; and (ix) the Estoppel
Agreement dated as of July 29, 1998, among DURA, the Denver Arena Trust and the
Indenture Trustee with respect to the Redevelopment Agreement.
"Seller" has the meaning set forth in the introductory paragraph of
------
this Agreement.
"Seller Ascent Arena Company Membership Interest" means all of the
-----------------------------------------------
Ascent Arena Company Membership Interests other than the LDA Ascent Arena
Company Membership Interest.
"Seller Indemnitee" has the meaning set forth in Section 8.2.
-----------------
"Solicitation" has the meaning set forth in Section 10.11(a).
------------
"Sports Entities" (individually, a "Sports Entity") means Nuggets LP,
--------------- -------------
Avalanche LLC and LLC-I.
"Sports Entities Contracts" means all Nuggets Contracts, Avalanche
-------------------------
Contracts and any other Contracts, whether written or oral, to which any Sports
Entity is a party or by which it is bound as of the Prior Agreement Effective
Date or on the Closing Date providing for actual or contingent expenditures,
receipts or liabilities in excess of $100,000 per year all as set forth on
Schedule 5.12(b)(i).
"Sports Entities Insurance Policies" has the meaning set forth in
----------------------------------
Section 5.10(a).
"Sports Entities Permits" has the meaning set forth in Section
-----------------------
5.12(f)(i).
-16-
"Sports Entities Required Consents" has the meaning set forth in
---------------------------------
Section 5.12(f)(ii).
"Sports Entities Required Contractual Consents" has the meaning set
---------------------------------------------
forth in Section 5.12(f)(ii).
"Sports Entities Required Governmental Approval" has the meaning set
----------------------------------------------
forth in Section 5.12(f)(ii).
"Subject Entities" (individually, a "Subject Entity") means Seller,
---------------- --------------
Ascent Arena Entities, Sports Entities, and, except as limited in accordance
with Section 11.13, the Corporate Entities.
"Subsidiary(ies)" means, with respect to any Person, any corporation
---------------
or other entity as to which more than 50% of the outstanding stock having
ordinary voting rights or power (and excluding stock having voting rights only
upon the occurrence of a contingency unless and until such contingency occurs
and such rights may be exercised) is owned or controlled, directly or
indirectly, by such Person and/or by one or more of such Person's Subsidiaries.
"Superior Offer" has the meaning set forth in Section 10.11(b).
--------------
"Tax Partnership" means a Partnership Entity and any other entity
---------------
treated as a partnership for federal income tax purposes in which a Purchased
Entity has a direct or indirect interest.
"Taxes" mean all taxes, however denominated, including any interest,
-----
penalties or other additions to tax that may become payable in respect thereof,
imposed by any Governmental Authority, which taxes shall include, without
limiting the generality of the foregoing, all income or profits taxes, payroll
and employee withholding taxes, unemployment insurance, social security taxes,
sales and use taxes, ad valorem taxes, excise taxes, franchise taxes, gross
receipts taxes, business license taxes, occupation taxes, real and personal
property taxes, stamp taxes, environmental taxes, and transfer taxes and other
obligations of the same or of a similar nature to any of the foregoing, any
Purchased Entity is required to pay, withhold or collect.
"Teams" (individually, a "Team") means, collectively, the Nuggets and
----- ----
the Avalanche.
"Transaction Documents" (individually, a "Transaction Document") means
--------------------- --------------------
this Agreement and all other documents delivered by Seller and Purchasers in
order to effect the transactions contemplated by this Agreement.
"Trust Agreement" means the Amended and Restated Trust Agreement of
---------------
Denver Arena Trust, dated as of July 29, 1998, among Ascent Arena Company as
transferor, Wilmington Trust Company, as owner trustee, and The Bank of New
York, as certificate paying agent.
-17-
"Trust Certificates" has the meaning set forth in Section 5.2(e)(i).
------------------
"Trustee's Lien" means the lien created by those Security Documents
--------------
which create any lien or security interest for the benefit of the Indenture
Trustee.
"US West Agreement" means the Agreement for Sponsorship and Promotion,
-----------------
dated as of June 26, 1998, between US West, Inc. and Ascent Arena Company, as
amended and restated upon delivery to the Denver Arena Trust.
"User Agreements" means, collectively (i) the agreement between
---------------
Avalanche LLC and Ascent Arena Company concerning the use of the Pepsi Center by
the Colorado Avalanche, and (ii) the agreement between the Nuggets LP and Ascent
Arena Company concerning the use of the Pepsi Center by the Denver Nuggets.
"VCUP" means the Application for a Voluntary Cleanup Plan submitted to
----
the Colorado Department of Public Health and Environment, dated March 10, 1995,
and all correspondence, supplements, addenda, and extensions thereof.
"Xxxxxxxxxxx Xxxxxxx" means Xxxxxxxxxxx Xxxxxxx & Co., Inc.
-------------------
ARTICLE II.
PURCHASE AND SALE
2.1 AEG Ownership Interests. At Closing, subject to the terms and
-----------------------
conditions of this Agreement, AEG shall sell, transfer, convey and deliver to
New Sports, and New Sports shall purchase from AEG, free and clear of all Liens,
the portion of the AEG Nuggets LP Partnership Interest not transferred to HC
prior to the Closing.
2.2 HC Ownership Interests. At Closing, subject to the terms and
----------------------
conditions of this Agreement, HC shall sell, transfer, convey and deliver to New
Sports, and New Sports shall purchase from HC, free and clear of all Liens, the
LLC-I Membership Interest and the portion of the AEG Nuggets LP Partnership
Interest and the AEG Avalanche Membership Interest that AEG transfers to HC
prior to the Closing.
2.3 LLC-II Membership Interest. At Closing, subject to the terms and
--------------------------
conditions of this Agreement, HC shall sell, transfer, convey and deliver to New
Arena, and New Arena shall purchase from HC, free and clear of all Liens, the
LLC-II Membership Interest.
2.4 Ascent Arena Company Membership Interests. At Closing, subject
-----------------------------------------
to the terms and conditions of this Agreement, AEG shall sell, transfer, convey
and deliver to EPL IV, and EPL IV shall purchase from AEG, free and clear of all
Liens, AEG's 1% Ascent Arena Company Membership Interest, and LDA shall sell,
transfer, convey and deliver to New Arena, and New Arena shall purchase from
LDA, free and clear of all Liens, LDA's 6.5% Ascent Arena Company Membership
Interest (the "LDA Ascent Arena Company Membership Interest").
--------------------------------------------
-18-
2.5 LLC-I Nuggets LP Partnership Interest. At the Closing and
-------------------------------------
immediately prior to the purchase and sale of the LLC-I Membership Interest
pursuant to Section 2.2, subject to the terms and conditions of this Agreement,
LLC-I shall sell, transfer, convey and deliver to EPL-III, and EPL-III shall
purchase from LLC-I, free and clear of all Liens, the LLC-I Nuggets LP
Partnership Interest.
2.6 Avalanche Membership Interest. At the Closing, subject to the
-----------------------------
terms and conditions of this Agreement, AEG shall sell, transfer, convey and
deliver to EPL IV, and EPL IV shall purchase from AEG, free and clear of all
Liens, the portion of the AEG Avalanche Membership Interest that AEG does not
transfer to HC prior to the Closing.
2.7 Purchase Price. The purchase price for the Purchased Entities
--------------
(excluding LDA's Ascent Arena Company Membership Interest) shall be $260,000,000
minus the LDA Purchase Price (the "AEG Purchase Price"), paid in cash by wire
------------------
transfer of immediately available funds to an account designated by Seller. The
purchase price for LDA's Ascent Arena Company Membership Interest shall be $16.5
million, or such higher amount as Seller and LDA may agree in writing (the "LDA
---
Purchase Price"), paid in cash by wire transfer of immediately available funds
--------------
to an account designated by LDA. In the event that Seller and LDA agree to such
a higher amount, Seller shall notify Purchasers of such amount at least two
Business Days prior to the Closing.
ARTICLE III.
COVENANTS OF SELLER
3.1 Compliance with Contracts and Applicable Law.
--------------------------------------------
(a) Nuggets. From the Effective Date through the Closing Date, AEG,
-------
HC, LLC-I and Nuggets LP shall comply in all material respects with all
conditions and requirements set forth in (i) all applicable Sports Entities
Contracts, (ii) the Organizational Documents applicable to such entities, (iii)
any and all applicable NBA agreements and documents or other material Contracts
of such entities, (iv) the VCUP, (v) Applicable Law, and (vi) this Agreement.
(b) Avalanche. From the Effective Date through the Closing Date, AEG,
---------
HC, LLC-I and Avalanche LLC shall comply in all material respects with all
conditions and requirements set forth in (i) all applicable Sports Entities
Contracts, (ii) the Organizational Documents applicable to such entities, (iii)
any and all applicable NHL agreements and documents or other material Contracts
of such entities, (iv) the VCUP, (v) Applicable Law, and (vi) this Agreement.
(c) Ascent Arena Entities. From the Effective Date through the
---------------------
Closing Date, AEG, HC and the Ascent Arena Entities shall comply in all material
respects, or cause such compliance, with all conditions and requirements set
forth in (i) the Arena Contracts, (ii) the Licenses, (iii) the Organizational
Documents of such entities, (iv) the VCUP, (v) Applicable Laws, and (vi) this
Agreement.
-19-
3.2 Conduct of Business in the Ordinary Course.
------------------------------------------
(a) Sports Entities. At all times prior to the Closing, neither
---------------
Seller nor the Sports Entities shall take any action or fail to take any action
if such action or inaction, as the case may be, would be outside the ordinary
course of business and inconsistent with past practices. Notwithstanding the
foregoing, "ordinary course" shall not include any of the following without the
prior written consent of the Purchasers in each instance:
(i) create, permit or suffer to exist any Lien on any of the
Assets of the Sports Entities, other than Liens created in the ordinary course
of business consistent with past practices pursuant to sponsorship agreements or
agreements related to the operation of the Avalanche and Nuggets and except
pursuant to the Arena Contracts after consultation with the Designated
Representative (as defined below);
(ii) sell, transfer or convey, or enter into any Contract with
a value of more than $100,000 which grants any Person any right to use, access
(other than on a short-term basis), lease or acquire any of, the material Assets
of the Sports Entities, except pursuant to the Arena Contracts after
consultation with the Designated Representative;
(iii) amend any Sports Entities Contract, except as expressly
required by this Agreement;
(iv) amend any Organizational Document of such entities;
(v) make a loan (other than for reasonable travel expenses in
the ordinary course of business) to any Person, including, without limitation,
an Affiliate;
(vi) incur any indebtedness other than trade payables incurred
in the ordinary course of business pursuant to Contracts now in effect or
entered into in accordance with this Section 3.2(a);
(vii) except for the indebtedness listed on Schedule 3.2(a)(vii)
--------------------
attached hereto, prepay any indebtedness to any Person other than a Purchased
Entity, including, without limitation, any indebtedness to Seller;
(viii) enter into any Contract with any Affiliate or enter into
or terminate any Contract with obligations on the part of any Sports Entity in
excess of $100,000;
(ix) amend any Employee Plan to increase benefits, or create
any new Employee Plan other than as required by Applicable Law or previously
existing contractual commitment; or
(x) make any material change in their accounting principles,
methods or practices or in the manner they keep their books and records.
Purchaser shall not unreasonably delay its consent to or rejection of
any of the actions described in this Section 3.2(a). To the extent that Seller
takes or fails to take action on
-20-
any matter described in this Section 3.2(a) in accordance with instructions
given to it by the Designated Representative (or deemed to have been given in
accordance with paragraph (c) below), Purchaser shall be deemed to have waived
in respect of such matter any right it may otherwise have to claim a breach of a
representation or to assert a claim for indemnity hereunder.
Prior to July 1, 1999, Seller shall provide the Sports Entities the
funds necessary to make all deposits and other payments up to the $1,300,000
referred to in the May 14, 1999 letter from Xxxxx X. Xxxxxxx to Xxxxxxx X.
Xxxxxx.
(b) Ascent Arena Entities and the Development Property. At all times
--------------------------------------------------
prior to Closing, neither Seller nor any Ascent Arena Entity shall take any
action or fail to take any action if such action or inaction, as the case may
be, would be outside the ordinary course of business. Notwithstanding the
foregoing, "ordinary course" shall not include any of the following without the
prior written consent of the Purchasers in each instance:
(i) create, permit or suffer to exist any Lien on the Pepsi
Center, the Development Property, or the Assets of any Ascent Arena Entity,
except the City Lien, the Trustee's Lien, Liens created in the ordinary course
of business consistent with past practices related to sponsorship agreements and
other contracts disclosed on Schedule 5.13(e) and except pursuant to the Arena
Contracts after consultation with the Designated Representative;
(ii) sell, transfer or convey, or enter into any Contract with
a value in excess of $100,000 which grants any Person any right to use, access
(other than on a short-term basis), lease or acquire the Pepsi Center or the
Development Property, any interest in or any portion thereof, or any of the
material Assets of any Ascent Arena Entity, except pursuant to the Arena
Contracts after consultation with the Designated Representative;
(iii) amend any Arena Contract or take any action that would or
could reasonably result in an increase in the cost of building the Pepsi Center
in excess of $100,000;
(iv) amend any Organizational Document of any Ascent Arena
Entity (except as may be necessary to comply with Section 3.2(b));
(v) make a loan (other than for reasonable travel expenses in
the ordinary course of business) to any Person, including, without limitation,
an Affiliate;
(vi) incur any indebtedness other than trade payables incurred
in the ordinary course of business pursuant to Contracts now in effect or
pursuant to the Arena Contracts or entered into in accordance with this Section
3.2(b);
(vii) make any distribution, dividend or other payment to its
members or shareholders;
(viii) except for the indebtedness listed on Schedule
--------
3.2(b)(viii) attached hereto, prepay any indebtedness to any Person other than
------------
an Ascent Arena Entity, including, without limitation, any indebtedness to
Seller;
-21-
(ix) enter into any Contract with any Affiliate or enter into or
terminate any Contract with obligations on the part of any Ascent Arena Entity
in excess of $100,000;
(x) amend any Employee Plan to increase benefits, or create any
new Employee Plan, other than as required by Applicable Law or previously
existing contractual commitment;
(xi) solicit from any Ascent Arena Entity, directly or
indirectly, for Seller or any other Person, any Key Employee; or
(xii) make any material change in their accounting principles,
methods or practices or in the manner they keep their books and records.
Purchaser shall not unreasonably delay its consent to or rejection of
any of the actions described in this Section 3.2(b). To the extent that Seller
takes or fails to take action on any matter described in this Section 3.2(b) in
accordance with instructions given to it by the Designated Representative (or
deemed to have been given in accordance with paragraph (c) below), Purchasers
shall be deemed to have waived in respect of such matter any right it may
otherwise have to claim a breach of a representation or to assert a claim for
indemnity hereunder.
Prior to July 1, 1999, Seller shall provide the Ascent Arena Entities
the funds necessary to make all deposits and other payments up to the $1,300,000
referred to in the May 14, 1999 letter from Xxxxx X. Xxxxxxx to Xxxxxxx X.
Xxxxxx.
(c) Notice. Seller shall promptly notify Purchasers, in writing, of
------
the occurrence or existence of any event or circumstance of which Seller is
aware and which would violate this Section 3.2. Purchasers shall appoint a
person(s) to serve as primary contact for Seller in conjunction with Sections
3.2 and 3.5 (the "Designated Representative"). For purposes of Seller seeking
-------------------------
required approvals under this Section 3.2, Seller shall deliver written
notification (in the manner provided in Section 11.1) to the Designated
Representative as to the matter for which Seller is seeking approval. The
Designated Representative may accept or deny approval within 48 hours of such
notification or indicate that it shall accede to management's judgment. If the
Designated Representative does not deliver such written notification within the
48 hour period, such approval shall be deemed to have been given.
3.3 Preservation of Business. At all times prior to the Closing,
------------------------
Seller shall cause the Purchased Entities to use their respective reasonable
best efforts to preserve intact the current Assets, business organizations and
relationships, and goodwill of the Purchased Entities, and to keep available the
services of the present officers, employees, players, agents and other personnel
of the Purchased Entities, excluding officers of Seller who are not Key
Employees, in each case to the extent commercially reasonable.
3.4 Maintenance of Insurance Coverage and Certain Policies. From the
------------------------------------------------------
Effective Date through the Closing Date, neither Seller nor any of the Purchased
Entities shall take or fail to take any action if such action or inaction, as
the case may be, would adversely affect the applicability, prior to the Closing
Date, of any insurance policies listed on Schedule 3.4
------------
-22-
attached hereto, which shall remain in effect after the Closing Date. Seller
shall maintain insurance coverage for all claims arising or relating to periods
prior to the Closing Date provided maintenance of such coverage following the
Closing Date does not require Seller to pay additional amounts.
3.5 Current Information. During the period from the date of this
-------------------
Agreement to the Closing, Seller will cause one or more of its representatives
to confer on a regular basis with the Designated Representative with respect to
the status of the ongoing operations of the Purchased Entities. Seller promptly
will notify Purchasers of any material change in the normal course of business
of the Purchased Entities or, if known to Seller, of any complaints from a
Governmental Authority or of any litigation known to Seller (or written
communications received by Seller or the Purchased Entities indicating that the
same may be contemplated) or, if known to Seller or the Purchased Entities, the
institution or the threatened institution of any litigation in each case that
would challenge, prevent, alter or materially delay any of the transactions
contemplated by the Transaction Documents and Seller will keep Purchasers
informed with respect to such events. Seller and Purchasers will notify each
other at mutually agreeable times of the status of applications with
Governmental Authorities and third-party consents related to the transactions
contemplated by the Transaction Documents. In addition, Seller will allow the
Purchasers and/or their representatives reasonable access to any and all
records, files, contracts, employees, representatives, agents and other
information or persons deemed necessary by Purchasers and/or their
representatives to verify representations and warranties made by Seller herein
and other information provided by Seller to Purchasers in connection with the
transactions contemplated by the Transaction Documents.
3.6 Post-Closing Funds. Except as set forth on Schedule 3.6 attached
------------------ ------------
hereto, all revenues, cash, funds, notes, accounts receivable and the like, of
any kind, received by the Purchased Entities relating to periods after July 1,
1999 ("Post-Closing Funds"), including, without limitation, funds received by
------------------
any such entity with respect to season tickets, club seats, luxury suites,
television, radio, marketing, sponsorship or advertising, shall be maintained,
subject to the proviso to the following sentence, by each Purchased Entity
receiving such Post-Closing Funds. Neither Seller nor any Purchased Entity
shall use, or grant any Lien against, the Post-Closing Funds for any reason;
provided, that Seller may use such Post-Closing Funds to pay for operating
expenses relating to the Businesses (i) incurred by Seller after June 30, 1999
in the ordinary course of business consistent with past practice subject to the
provisions of Section 3.2 or (ii) that were approved under Section 3.1 or 3.2 of
the Prior Agreement or are approved under Section 3.1 or 3.2 of this Agreement.
3.7 Preservation of LDA's Ascent Arena Company Membership Interest.
--------------------------------------------------------------
LDA agrees not to sell, transfer, hypothecate or encumber its Ascent Arena
Company Membership Interest prior to the Closing.
-23-
ARTICLE IV.
CLOSING
4.1 Closing. Subject to the terms and conditions of this Agreement,
-------
the sale and purchase of (a) the LLC-I Membership Interest, (b) the LLC-II
Membership Interest, (c) the Seller Ascent Arena Company Membership Interests,
(d) the AEG Nuggets LP Partnership Interest, and (e) the AEG Avalanche
Membership Interest (subsections (a), (b), (c), (d) and (e), the LLC-I Avalanche
Membership Interest and the LLC-I Nuggets LP Partnership Interest are referred
to collectively as the "Equity Interests") contemplated by this Agreement and
----------------
the sale and purchase of the LDA Ascent Arena Company Membership Interest shall
take place at a closing (the "Closing") to be held at the offices of Holme
-------
Xxxxxxx & Xxxx LLP at 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx on the later to
occur of (x) the second Business Day following the satisfaction or waiver of all
conditions to the obligations of the parties set forth in this Agreement and (y)
the second Business Day following the date of the second round auction, if any,
pursuant to Section 10.11(c), but in no event (A) earlier than the expiration of
the period for submitting Competing Offers pursuant to Section 10.11(a) or (B)
during the period August 4, 1999 through August 18, 1999, if the Designated
Representative shall have notified Seller in writing that he has a good faith
belief that the conditions to the Purchasers' obligations may not have been
satisfied or waived and specifies in such notice in reasonable detail the basis
for such belief, or at such other place or at such other time or on such other
date as the parties may mutually agree upon in writing (the day on, and the time
at, which the Closing takes place being the "Closing Date"). The Closing shall
------------
be deemed to be effective as of the close of business on June 30, 1999.
4.2 Closing Deliveries by AEG. At the Closing, AEG shall deliver, or
-------------------------
cause to be delivered, to Purchasers (all in form and substance reasonably
satisfactory to Purchasers):
(a) An assignment to New Arena of all of AEG's right, title and
interest in and to its 1% Ascent Arena Company Membership Interest, together
with AEG's resignation as manager thereof, effective as of the Closing Date.
(b) An assignment to New Sports of all of AEG's right, title and
interest in and to the portion of the AEG Nuggets LP Partnership Interest not
transferred to HC prior to the Closing.
(c) An assignment to New Sports of all of AEG's right, title and
interest in and to the portion of the AEG Avalanche Membership Interest not
transferred to HC prior to the Closing.
(d) A certificate in which AEG represents and warrants to New Arena,
as of the Closing Date (or of the most recent practicable date), (i) the total
amount of funds which have been expended or reserved in connection with the
development and construction of the Pepsi Center and the Development Land, (ii)
a list of budgeted costs which have not then been paid in connection with
construction of the Arena, and (iii) the fund balance in the Construction Fund
Account.
-24-
(e) Certificate executed by AEG pursuant to which AEG represents and
warrants to New Arena, as of the Closing Date, the then-existing balance of
funds in each of the Accounts, other than the Construction Fund Account.
(f) The opinions, certificates, consents and other documents required
to be delivered pursuant to Section 7.1.
(g) All books, records and accounting papers of the Purchased
Entities.
4.3 Closing Deliveries by Purchasers.
--------------------------------
(a) At the Closing, Purchasers shall deliver, or cause to be
delivered, to Seller:
(i) by wire transfer in immediately available funds, the AEG
Purchase Price; and
(ii) the opinions, certificates and other documents required to
be delivered pursuant to Section 7.2 in form and substance reasonably
satisfactory to AEG.
(b) At the Closing, Purchasers shall deliver, or cause to be
delivered, to LDA:
(i) by wire transfer in immediately available funds, the LDA
Purchase Price; and
(ii) the certificates and other documents required to be
delivered pursuant to Section 7.3 in form and substance reasonably satisfactory
to LDA.
4.4 Closing Deliveries by LDA. At the Closing, LDA shall deliver, or
-------------------------
cause to be delivered, to Purchasers (all in form and substance reasonably
satisfactory to Purchasers):
(a) An assignment to New Arena of all of LDA's right, title and
interest in and to its 6.5% Ascent Arena Company Membership Interest, effective
as of the Closing Date.
(b) The certificates and other documents required to be delivered
pursuant to Section 7.1(r) of this Agreement.
4.5 Closing Deliveries by HC. At the Closing, HC shall deliver, or
------------------------
cause to be delivered, to Purchasers:
(a) An assignment to New Sports of all of HC's right, title and
interest in and to the LLC-I Membership Interest.
(b) An assignment to New Arena of all of HC's right, title and
interest in and to the LLC-II Membership Interest.
-25-
(c) An assignment to New Sports of all of HC's right, title and
interest in the portion of the AEG Nuggets LP Partnership Interest that AEG
transfers to HC prior to the Closing.
(d) An assignment to New Sports of all of HC's right, title and
interest in the portion of the AEG Avalanche Membership Interest that AEG
transfers to HC prior to the Closing.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to enter into this Agreement, Seller represents and
warrants to Purchasers that the following matters are true and correct as of the
Prior Agreement Effective Date and as of the Closing Date unless limited to a
specific date.
5.1 General Corporate and Partnership Matters.
-----------------------------------------
(a) Organization and Standing. As of the Effective Date (except in
-------------------------
respect of LLC-I and LLC-II, which will be formed following the Effective Date)
and as of the Closing Date, each Subject Entity:
(i) is a Person duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(ii) has full power and authority to own, lease and operate its
Assets and to conduct its Business as now being conducted; and
(iii) is qualified or licensed to do business in all states and
other jurisdictions where its ownership, leasing or operation of its Assets, or
the conduct of its business, requires such qualification or licensing, except
where the failure to be so qualified or registered would not result in a
Material Adverse Effect.
(b) Organizational Documents. The Purchased Entities have, or, in
------------------------
the case of LLC-I and LLC-II, will have prior to the Closing, delivered to the
Purchasers true and complete copies of their respective Organizational Documents
and corporate, partnership or limited liability company books, records and
ledgers. Such documents contain, or, in the case of LLC-I and LLC-II, will
contain, true and complete minutes and records of all issuances and transfers of
any stock, membership, partnership or other ownership interest in the Purchased
Entities, and all minutes and records of all meetings, consents, proceedings and
other actions of the partners, members, shareholders, board of directors and
committees of the board of directors of the Purchased Entities since the date of
incorporation or formation.
-26-
(c) Corporate Power; Authorization; No Contravention; Consents. As
----------------------------------------------------------
of the Effective Date and as of the Closing Date:
(i) Seller has all requisite legal and corporate power to enter
into this Agreement and to carry out and perform its obligations under the terms
of this Agreement and any other Transaction Document to which it is a party.
(ii) The execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated thereby have
been duly authorized by all necessary corporate action on the part of Seller,
and no other corporate proceedings or action on the part of Seller are necessary
to authorize the Transaction Documents or to consummate the transactions
contemplated thereby.
(iii) The execution, delivery, and performance by Seller of the
Transaction Documents will not:
(A) conflict with or violate any of Seller's Organizational
Documents;
(B) result in any breach or violation of, or constitute a
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any Contract, except
as would not have a Material Adverse Effect;
(C) result in the creation of any Lien on any of the Assets
of a Purchased Entity;
(D) require any consent or approval of any third-party or
any party to any Contract of Seller or its Affiliates, the absence of which
would constitute a Material Adverse Effect, other than the City Consent, the
consent of the other members of Mountain Mobile with respect to the sale of the
Mountain Mobile Membership Interest and the Sports Entities Required Contractual
Consents; or
(E) conflict with or violate any Applicable Laws (other
than such conflicts or violations that would not have a Material Adverse
Effect).
(d) Binding Effect. As of the Effective Date and as of the Closing
--------------
Date, each of the Transaction Documents to which Seller is a party constitutes a
legal, valid and binding obligation of Seller, enforceable against it in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
(e) Governmental Authorization. No approval, consent, exemption,
--------------------------
authorization, or other action by, or notice to, or registration, declaration or
filing with, any Governmental Authority is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, Seller
of any Transaction Document, other than:
-27-
(i) compliance with the registration requirements of the
Securities Act, or an exemption therefrom, and any applicable state blue sky
laws and the Securities Exchange Act of 1934;
(ii) the City Consent;
(iii) any Sports Entities Required Governmental Approval; and
(iv) as set forth in this Agreement.
(f) Subsidiaries. Except as set forth in Schedule 5.1(f) attached
------------ ---------------
hereto and as provided herein, the Purchased Entities have no directly or
indirectly owned Subsidiaries and have made no advances to or investments in,
and do not own any securities of or other interests in, any Person.
5.2 Authorized Capital; Title to Shares and Membership Interests.
------------------------------------------------------------
(a) Ascent Development Corp. Subject to the provisions of Section
-----------------------
11.13 hereof:
(i) The authorized capital stock of Ascent Development Corp.
consists solely of 1,000 shares of common stock, par value $1.00 per share (the
"ADC Shares"), of which 1,000 shares are issued and outstanding. There are no
-----------
other outstanding shares of capital stock or other securities or other ownership
interests in Ascent Development Corp.
(ii) AEG has good title to the ADC Shares, free and clear of all
Liens other than those created by this Agreement. AEG is the record and
beneficial owner of the ADC Shares.
(iii) The ADC Shares have been duly authorized and validly
issued, are fully paid and nonassessable, were not issued in violation of the
terms of any Contract binding upon Ascent Development Corp. or AEG, and were
issued in compliance with all applicable Organizational Documents and Applicable
Law.
(b) Ascent Arena Company.
--------------------
(i) As of the Closing Date, the Seller Ascent Arena Company
Membership Interests will be as follows:
AEG 1%
LLC-II 92.5%
(ii) AEG and LLC-II will have, as of the Closing Date, good
title to 100% of the Seller Ascent Arena Company Membership Interests, free and
clear of all Liens other than those created by this Agreement. AEG and LLC-II
will be, as of the Closing Date, the record and beneficial owners of the Seller
Ascent Arena Company Membership Interests in the ratios stated in Section
5.2(b)(i).
-28-
(iii) The Seller Ascent Arena Company Membership Interests have
been duly authorized and validly issued, are fully paid and nonassessable, were
not issued in violation of the terms of any Contract binding upon Ascent Arena
Company, AEG, Ascent Development Corp. or LLC-II and were issued in compliance
with all applicable Organizational Documents and Applicable Law.
(iv) Except as set forth in the Ascent Operating Agreement,
there are: (A) no existing Contracts or rights of any character with respect to
the purchase, redemption or acquisition of any membership or other interest in
Ascent Arena Company, existing or contingent, at any time, or upon the happening
of any stated event; (B) no outstanding interests that are convertible into or
exchangeable for membership or other interests in Ascent Arena Company; and (C)
no Contracts or rights of any character to purchase or otherwise acquire from
AEG, Ascent Arena Company, Ascent Development Corp. or LLC-II any such
convertible or exchangeable interests.
(c) Mountain Mobile.
----------------
(i) The membership interests comprising Mountain Mobile are as
follows:
Nuggets LP 1/3
Fox Sports Rocky Mountain 1/3
Norac 1/3
(ii) Nuggets LP has good title to the Mountain Mobile Membership
Interest, free and clear of all Liens other than those created by this
Agreement. Nuggets LP is the record owner and, as of the Closing LLC-I will be,
the beneficial owner of the Mountain Mobile Membership Interest, with the sole
right to vote, dispose of, and receive distributions and dividends with respect
to such membership interest.
(iii) Except as set forth on Schedule 5.2(c)(iii) attached
hereto, the Mountain Mobile Membership Interest has been duly authorized and
validly issued, is fully paid and nonassessable, and to the Actual Knowledge of
Seller, was not issued in violation of the terms of any Contract binding upon
Mountain Mobile or Nuggets LP and was issued in compliance with all applicable
Organizational Documents and Applicable Law.
(iv) Except as set forth in the Operating Agreement of Mountain
Mobile, to the Actual Knowledge of Seller, there are: (A) no existing Contracts
or rights of any character with respect to the purchase, redemption or
acquisition of the Mountain Mobile Membership Interest or any other membership
interest in Mountain Mobile, existing or contingent, at any time, or upon the
happening of any stated event; (B) no outstanding interests that are convertible
into or exchangeable for membership or other interests in Mountain Mobile which
would dilute the interest being acquired by New Sports; and (C) no Contracts or
rights of any character to purchase or otherwise acquire any such convertible or
exchangeable interests.
-29-
(d) Arena Operating Company.
------------------------
(i) Ascent Arena Company is the sole member and manager of
Arena Operating Company, and no other membership, management, equity or other
interests in Arena Operating Company exist.
(ii) Ascent Arena Company's interest in Arena Operating Company
is free and clear of all Liens other than those created by this Agreement.
Ascent Arena Company has the sole right to vote, dispose of, and receive
distributions and dividends with respect to the Arena Operating Company.
(iii) Ascent Arena Company's interest in Arena Operating Company
has been duly authorized and validly issued, is fully paid and nonassessable,
was not issued in violation of the terms of any Contract binding upon Arena
Operating Company or Ascent Arena Company, and was issued in compliance with all
applicable Organizational Documents and Applicable Law.
(iv) Other than the Permitted Liens, there are: (A) no existing
Contracts or rights of any character with respect to the purchase or acquisition
of any membership or other interest in Arena Operating Company, existing or
contingent, at any time, or upon the happening of any stated event; (B) no
outstanding interests that are convertible into or exchangeable for membership
or other interests in Arena Operating Company; and (C) no Contracts or rights of
any character to purchase or otherwise acquire from the Arena Operating Company
or Ascent Arena Company any such convertible or exchangeable interests.
(e) Denver Arena Trust.
-------------------
(i) Ascent Arena Company is the sole certificate holder of the
trust certificates of the Denver Arena Trust (the "Trust Certificates"), and
------------------
there are no other outstanding trust certificates, and no outstanding
subscriptions, options, warrants, puts, calls, rights, exchangeable or
convertible securities or other commitments or agreements of any nature relating
to the trust certificates of the Denver Arena Trust. Ascent Arena Company has
the sole right to receive distributions with respect to the Residential Interest
as defined in the Trust Agreement, subject only to the City Lien.
(ii) The Trust Certificates are free and clear of all Liens,
other than those created by this Agreement and the City Lien. The Trust
Certificates were issued in compliance with the Trust Agreement and Applicable
Law.
(iii) The Denver Arena Trust is not a business trust within the
meaning of Section 101(9)(A)(v) of the Bankruptcy Code. For federal, state and
local income and franchise tax purposes, by virtue of there being a sole
Certificate holder, the Denver Arena Trust constitutes a security arrangement,
with the assets being held by the trust, the owner of the trust assets being the
sole Certificate holder, and the Notes being non-recourse debt of the sole
Certificate holder. The Denver Arena Trust has not elected treatment as an
association under Treasury Regulations Section 301.7701-3(a) for federal income
tax purposes. The Denver Arena
-30-
Trust shall be considered part of Ascent Arena Company for purposes of the
definition of Partnership Entity.
(iv) The Denver Arena Trust does not own, directly or indirectly,
any equity or similar interest in, or any interest convertible or exchangeable
or exercisable for any equity or similar interest in, any corporation,
partnership, joint venture, limited liability company or other business
association or entity.
(v) Ascent Arena Company has not received any distributions of
the Residual Interest or other amounts pursuant to the Trust Agreement.
(f) Avalanche LLC.
-------------
(i) As of the Closing Date, the membership interests in
Avalanche LLC will be as follows:
AEG 1%
HC 49%
LLC-I 50%
(ii) As of the Closing Date, AEG and LLC-I will have good title
to the Avalanche LLC membership interests, free and clear of all Liens other
than those created by this Agreement, and are the record and beneficial owners
of the Avalanche LLC membership interests in the ratios stated in Section
5.2(f)(i) with the sole right to vote, dispose of, and receive distributions and
dividends with respect to the Avalanche LLC membership interests.
(iii) The Avalanche LLC membership interests have been duly
authorized and validly issued, are fully paid and nonassessable, were not issued
in violation of the terms of any Contract binding upon Avalanche LLC, AEG,
Ascent Sports or LLC-I and were issued in compliance with all applicable
Organizational Documents and Applicable Law.
(iv) Other than the Permitted Liens, there are: (A) no existing
Contracts or rights of any character with respect to the purchase, redemption or
acquisition of any membership or other interest in Avalanche LLC, existing or
contingent, at any time, or upon the happening of any stated event; (B) no
outstanding interests that are convertible into or exchangeable for membership
or other interests in Avalanche LLC; and (C) no Contracts or rights of any
character to purchase or otherwise acquire from AEG, Avalanche LLC, Ascent
Sports or LLC-I any such convertible or exchangeable interests.
-31-
(g) Nuggets LP.
----------
(i) As of the Closing Date, the Nuggets LP partnership
interests will be as follows:
AEG 1%
HC 97.2%
LLC-I 1.8%
(ii) As of the Closing Date, AEG, HC and LLC-I will have good
title to the Nuggets LP partnership interests, free and clear of all Liens other
than those created by this Agreement. As of the Closing Date, AEG, HC and LLC-I
will be the record and beneficial owners of the Nuggets LP partnership interests
in the ratios stated in Section 5.2(g)(i) with the sole right to vote, dispose
of, and receive distributions and dividends with respect to the Nuggets LP
partnership interests.
(iii) The Nuggets LP partnership interests have been duly
authorized and validly issued, are fully paid and nonassessable, were not issued
in violation of the terms of any Contract binding upon Nuggets LP, AEG, Ascent
Sports or LLC-I and were issued in compliance with all applicable Organizational
Documents and Applicable Law.
(iv) Other than Permitted Liens, there are: (A) no existing
Contracts or rights of any character with respect to the purchase, redemption or
acquisition of any membership or other interest in Nuggets LP, existing or
contingent, at any time, or upon the happening of any stated event; (B) no
outstanding interests that are convertible into or exchangeable for membership
or other interests in Nuggets LP; and (C) no Contracts or rights of any
character to purchase or otherwise acquire from AEG, Nuggets LP, Ascent Sports
or LLC-I any such convertible or exchangeable interests.
(h) Restrictions. Except as disclosed on Schedule 5.2(h) attached
------------ ---------------
hereto, there is no voting or other trust or agreement, option, warrant,
preemptive right, right of first offer, right of first refusal, escrow
arrangement, proxy, buy-sell agreement, power of attorney or other Contract, or
any order, judgment or decree, relating to any of the Equity Interests which,
conditionally or unconditionally, (i) grants to any Person the right to
purchase, redeem or otherwise acquire, or obligates any Person to sell or
otherwise dispose of or issue, or otherwise results or, whether upon the
occurrence of any event or with notice or lapse of time or both or otherwise,
may result in any Person acquiring, (A) any of such Equity Interests; (B) any of
the proceeds of, or any distributions paid or which are or may become payable
with respect to, any of such Equity Interests; or (C) any interest in such
Equity Interests or any such proceeds or distributions; (ii) restricts or,
whether upon the occurrence of any event or with notice or lapse of time or both
or otherwise, is reasonably likely to restrict the transfer or voting of, or the
exercise of any rights or the enjoyment of any benefits arising by reason of
ownership of, any such Equity Interests or any such proceeds or distributions;
or (iii) creates or, whether upon the occurrence of any event or with notice or
lapse of time or both or otherwise, is reasonably likely to create a Lien or
purported Lien affecting such Equity Interests, proceeds or distributions.
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(i) LLC-I.
-----
(i) As of the Closing Date, the membership interests in LLC-I
will be as follows:
HC 100%
(ii) As of the Closing Date, HC will have good title to the LLC-
I Membership Interest, free and clear of all Liens other than those created by
this Agreement, and will be the record and beneficial owner of the LLC-I
Membership Interest as stated in Section 5.2(i)(i) with the sole right to vote,
dispose of, and receive distributions and dividends with respect to the LLC-I
Membership Interest.
(iii) The LLC-I Membership Interest has been duly authorized and
validly issued, is fully paid and nonassessable, was not issued in violation of
the terms of any Contract binding upon LLC-I, HC or AEG and was issued in
compliance with all applicable Organizational Documents and Applicable Law.
(iv) Other than the Permitted Liens, there are: (A) no existing
Contracts or rights of any character with respect to the purchase, redemption or
acquisition of any membership or other interest in LLC-I, existing or
contingent, at any time, or upon the happening of any stated event; (B) no
outstanding interests that are convertible into or exchangeable for membership
or other interests in LLC-I; and (C) no Contracts or rights of any character to
purchase or otherwise acquire from AEG, HC or LLC-I any such convertible or
exchangeable interests.
(j) LLC-II.
------
(i) As of the Closing Date, the membership interests in LLC-II
will be as follows:
HC 100%
(ii) As of the Closing Date, HC will have good title to the LLC-
II Membership Interest, free and clear of all Liens other than those created by
this Agreement, and will be the record and beneficial owner of the LLC-II
Membership Interest as stated in Section 5.2(j)(i) with the sole right to vote,
dispose of, and receive distributions and dividends with respect to the LLC-II
Membership Interest.
(iii) The LLC-II Membership Interest has been duly authorized and
validly issued, is fully paid and nonassessable, was not issued in violation of
the terms of any Contract binding upon LLC-II, HC or AEG and was issued in
compliance with all applicable Organizational Documents and Applicable Law.
(iv) Other than the Permitted Liens, there are: (A) no existing
Contracts or rights of any character with respect to the purchase, redemption or
acquisition of
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any membership or other interest in LLC-II, existing or contingent, at any time,
or upon the happening of any stated event; (B) no outstanding interests that are
convertible into or exchangeable for membership or other interests in LLC-II;
and (C) no Contracts or rights of any character to purchase or otherwise acquire
from AEG, HC or LLC-II any such convertible or exchangeable interests.
5.3 Financial Statements and Undisclosed Liabilities.
------------------------------------------------
(a) Seller has delivered to Purchasers the financial statements
described in Schedule 5.3(a) attached hereto (collectively, the "Financial
--------------- ---------
Statements"). The Financial Statements in each case have been prepared based on
----------
the books and records of the Purchased Entities in accordance with GAAP (except
in the case of internally prepared quarterly statements which do not include
notes or year-end adjustments), consistently applied throughout the periods
covered thereby and fairly present in all material respects the financial
condition, results of operations and statements of cash flow of the Purchased
Entities as of the dates or periods indicated (subject in the case of interim
financial statements to normal year-end adjustments). Since the Balance Sheet
Date, the Purchased Entities have conducted its respective businesses in a
consistent manner without change of accounting policy or procedure including,
without limitation, its practices in connection with the treatment of revenue
recognition, capitalization policies, reserves and expenses.
(b) Undisclosed Liabilities. Except as set forth on Schedule 5.3(b)
----------------------- ---------------
attached hereto, the Purchased Entities do not have any Liabilities except for
Liabilities (i) reflected on or reserved against in the Financial Statements of
such Persons, (ii) disclosed in this Agreement, and (iii) incurred in the
ordinary course of business consistent with past practice since the Balance
Sheet Date or otherwise entered into in accordance with this Agreement.
5.4 Litigation. Except as specifically disclosed in Schedule 5.4
---------- ------------
attached hereto, there are no actions, suits, hearings, arbitrations,
proceedings (public or private), claims, disputes, or governmental
investigations (collectively, "Proceedings") pending, or to the Knowledge of
-----------
Seller, threatened or contemplated, at law, in equity, in arbitration or before
any Governmental Authority, against the Pepsi Center or any of the Purchased
Entities or their Affiliates or any of their respective Assets (excluding any
Proceedings pending or threatened against the NBA or the NBA Member Teams
generally or against the NHL or the NHL Member Teams generally, provided that
Seller shall list all such litigation of which it has Knowledge on Schedule 5.4)
as to which there exists a substantial likelihood of an adverse determination,
which determination would result in a Material Adverse Effect.
5.5 Employees.
---------
(a) Sports Entities' Employees. Except as disclosed in Schedule
--------------------------
5.12(b)(i), Schedule 5.5(a) attached hereto lists, as of the Prior Agreement
---------------
Effective Date, the name, date and place of employment, current annual salary
and any other bonuses, and a description of position of each current exempt
employee, officer, director, consultant or agent of any Sports Entity. Seller
shall deliver to Purchasers an updated version of Schedule 5.5(a) on the Closing
Date.
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(b) Ascent Arena Entities' Employees. Except as disclosed in
--------------------------------
Schedule 5.13(e), Schedule 5.5(b) attached hereto lists, as of the Prior
---------------
Agreement Effective Date, the name, date and place of employment, current annual
salary and any other bonuses, and a description of position of each current
exempt employee, officer, director, consultant or agent of any Ascent Arena
Entity. Seller shall deliver to Purchasers an updated version of Schedule 5.5(b)
on the Closing Date.
(c) No Resignations by Key Employees. As of the Prior Agreement
--------------------------------
Effective Date, no Key Employee has delivered a letter of resignation or has
communicated in writing to any Sports Entity or any Ascent Arena Entity, as
applicable, an intention to deliver a letter of resignation in the future.
(d) No Solicitation of Key Employees. Neither Seller nor any of its
--------------------------------
Affiliates (excluding the Purchased Entities) has solicited, directly or
indirectly, for themselves or any other person or entity, any Key Employee.
5.6 Employee Benefits.
-----------------
(a) Purchased Entities Employee Plans.
---------------------------------
(i) Schedule 5.6(a)(i) attached hereto sets forth a correct and
------------------
complete list of all material Purchased Entities Employee Plans. Seller and the
Purchased Entities have made available to Purchasers true and complete copies of
the Purchased Entities Employee Plans and all related summary descriptions,
including, without limitation, copies of any employee handbooks listing or
describing any Purchased Entities Employee Plans and summary descriptions of any
Purchased Entities Employee Plan not otherwise in writing.
(ii) Except for any failure or default that would not have a
Material Adverse Effect, each of the Purchased Entities has fulfilled or has
taken all actions necessary to enable it to fulfill when due all of its
obligations under each Purchased Entities Employee Plan. To the Knowledge of
Seller, there are no negotiations, demands or proposals which are pending or
which have been made to Seller or the Purchased Entities which concern material
matters now covered, or that would be covered, by any Purchased Entities
Employee Plan that would have a Material Adverse Effect.
(iii) Each of the Purchased Entities is in full compliance with
all Applicable Law applicable to each Purchased Entities Employee Plan except
where noncompliance would not have a Material Adverse Effect. There has been no
Employee Plan Event which is continuing or in respect of which there is any
outstanding liability of any of the Purchased Entities that, individually or in
the aggregate, would have a Material Adverse Effect, and no such Employee Plan
Event is reasonably expected to occur, with respect to any Purchased Entities
Employee Plan.
(iv) Except as disclosed in Schedule 5.6(a)(iv) attached
-------------------
hereto, the execution and delivery of the Transaction Documents and the
conclusion of the transactions
-35-
contemplated by this Agreement will not cause the acceleration of vesting in, or
payment of, any benefits under any Purchased Entities Employee Plan.
(v) None of the Purchased Entities has any formal plan or
commitment, whether legally binding or not, to create any additional Employee
Plan or to modify or change any existing Employee Plan that would affect any
current or former employee of any of the Purchased Entities.
(vi) Schedule 5.6(a)(i) separately identifies any Purchased
Entities Employee Plan that provides life insurance or employee welfare plan
benefits (within the meaning of Section 3(1) of ERISA), now or in the future, to
any former employee at any cost to any of the Purchased Entities (except as
required by Applicable Law).
(b) Employee Plans of the Purchased Entities' ERISA Affiliates.
----------------------------------------------------------
Except as would not have a Material Adverse Effect, there has been no Employee
Plan Event with respect to any Employee Plan of any person that is an ERISA
Affiliate of the Purchased Entities or who was an ERISA Affiliate of the
Purchased Entities at any time since December 31, 1993, in respect of which any
liability could be expected to be incurred by any of the Purchased Entities.
(c) Purchased Entities Qualified Plans.
----------------------------------
(i) Each Purchased Entities Qualified Plan has received a
favorable determination letter (or opinion letter) from the Internal Revenue
Service providing that each such plan satisfies the requirements of Section
401(a) of the Code, and each trust under each such plan is exempt from Taxes
under Section 501(a) of the Code. To the Knowledge of Seller, no event has
occurred that will or would reasonably be expected to give rise to
disqualification or loss of tax-exempt status of any such plan or trust under
such sections.
(ii) Seller and the Purchased Entities have made available to
Purchasers for each Purchased Entities Qualified Plan copies of the following
documents, if applicable: (A) the Form 5500 filed for each of the three most
recent plan years, including all schedules thereto and financial statements with
attached opinions of independent accountants; and (B) the most recent
determination letter from the IRS.
(d) Purchased Entities ERISA Plans and Multiemployer Plans. No
------------------------------------------------------
Purchased Entities Employee Plan is, and no Employee Plan maintained by any of
the Purchased Entities during the five year period prior to the date hereof was,
an ERISA Plan. None of the Purchased Entities has during the five year period
prior to the date hereof contributed to, or withdrawn in a complete or partial
withdrawal from, any Multiemployer Plan or incurred any contingent liability
under Section 4204 of ERISA, nor is there any current potential liability for
withdrawal from a Multiemployer Plan, in either case that would have a Material
Adverse Effect, except as disclosed in Schedule 5.6(d) attached hereto.
---------------
-36-
5.7 Labor and Employment Matters.
----------------------------
(a) Except as set forth in Schedule 5.7(a) attached hereto, (i) to
---------------
the Knowledge of Seller, none of the Purchased Entities is currently, or has
been within the past 3 years, engaged in any practice, act or course of conduct
which, to the Knowledge of Seller, constitutes an unfair labor practice or
discriminatory act or course of conduct not in compliance with Applicable Laws;
(ii) as of the Effective Date, there is no labor strike, dispute, slow down or
stoppage pending or, to the Actual Knowledge of Seller, threatened against or
directly affecting any of the Purchased Entities; (iii) as of the Prior
Agreement Effective Date, none of the Purchased Entities is a party to any
pending grievance or arbitration proceeding arising out of or under any
collective bargaining agreement, and to the Actual Knowledge of Seller no claims
therefor exist; (iv) no collective bargaining agreement exists that is binding
on any of the Purchased Entities; and (v) as of the Prior Agreement Effective
Date, neither Seller, the Purchased Entities, nor any of their respective
Affiliates has received any written notice or has Actual Knowledge of any
threatened labor or civil rights dispute, controversy or grievance or any other
unfair labor practice proceeding or breach of contract claim or action with
respect to claims of, or obligations to, any employee or group of employees of
any Purchased Entity, and the same will be true as of the Closing Date except as
would not have a Material Adverse Effect.
(b) To the Knowledge of Seller, as of the Prior Agreement Effective
Date, there are no organizational efforts presently being made involving any
nonorganized employees of any of the Purchased Entities.
5.8 Intellectual Property.
---------------------
(a) Schedule 5.8(a) attached hereto sets forth a complete and correct
---------------
list of all Intellectual Property.
(b) Immediately after the Closing and except as a result of any
actions by Purchasers thereafter, the Purchased Entities' ownership and/or right
to Intellectual Property (i) to Seller's Actual Knowledge, will be the same as
the Purchased Entities' ownership and/or right immediately before the Closing,
(ii) will be free from any Liens, and (iii) will be free from any requirement of
any royalty payments, license fees, charges or other payments, conditions or
restrictions, except for Permitted Liens and otherwise as noted in the Contracts
identified in Schedule 5.8(a) attached hereto.
(c) Schedule 5.8(a) attached hereto sets forth a complete and correct
list of all material agreements (i) pursuant to which the Purchased Entities
have licensed Intellectual Property, or have permitted any Person to use
Intellectual Property, and (ii) pursuant to which the Purchased Entities have
been granted a license to Intellectual Property. All such agreements (A) are in
full force and effect in accordance with their terms and no default exists
thereunder by the Purchased Entities, or to the Knowledge of Seller, by any
other party thereto, (B) are free and clear of all Liens, and (C) do not contain
any change-in-control provisions or other terms or conditions that will become
applicable or inapplicable as a result of the Closing, except as may be provided
in Contracts specifically identified in Schedule 5.8(a) attached hereto.
-37-
(d) Except as set forth in Schedule 5.8(a) attached hereto, no claim
or demand has been made, nor is there any proceeding that is pending, or to the
Knowledge of Seller, threatened, that (i) challenges the Purchased Entities'
rights in Intellectual Property, (ii) asserts that the Purchased Entities are
infringing upon the intellectual property rights of another, or (iii) claims
that any default exists under any agreement listed in Schedule 5.8(a) attached
hereto. None of the Intellectual Property is subject to any outstanding order,
ruling, decree, judgment or stipulation by or with any court, arbitrator, or
administrative agency, or has been the subject of any litigation within the five
years prior to the Prior Agreement Effective Date, whether or not resolved in
favor of the Purchased Entities.
5.9 Environmental Compliance.
------------------------
(a) To the Knowledge of Seller, each Purchased Entity has obtained
all approvals, authorizations, certificates, consents, licenses, orders, and
permits or other similar authorizations (collectively, "Authorizations") of all
--------------
Governmental Authorities, or from any other Person, that are required under any
Environmental Law, and all such Authorizations are currently in effect.
(b) Each Purchased Entity has been and currently is in compliance in
all material respects with all terms and conditions of all Authorizations of all
Governmental Authorities (and all other Persons) required under all
Environmental Laws, including, without limitation, the VCUP and is also in
compliance in all material respects with all other limitations, restrictions,
conditions, standards, requirements, schedules and timetables required or
imposed under all Environmental Laws including without limitation the VCUP.
(c) Seller has not received notice of any claims which are pending
and, to the Knowledge of Seller, there are not any claims which are threatened,
relating to or alleging noncompliance or liability under any Environmental Law
with respect to any of the Purchased Entities or their respective Assets
(including without limitation, the Arena Land and the Development Property).
(d) True and complete copies of all permits, investigations, studies,
documents, reports, audits, tests, analytical data and correspondence related to
the environmental condition of the Assets which is in the possession or control
of Seller or an Affiliate of Seller or its respective consultants and agents
have been made available to Purchasers.
5.10 Insurance.
---------
(a) Sports Entities Insurance Policies. Schedule 5.10(a) attached
---------------------------------- ----------------
hereto sets forth a complete and correct list of all insurance policies of any
kind or nature whatsoever currently in force with respect to the Businesses of
the Sports Entities (the "Sports Entities Insurance Policies"), including all
----------------------------------
"occurrence based" liability policies regardless of the periods to which they
relate. Seller has delivered to Purchasers complete and correct copies of all
Sports Entities Insurance Policies, except for those which are in the control of
a Person other than Seller or its respective consultants or agents. The Sports
Entities Insurance Policies as currently in effect constitute insurance against
risks of a character and in such amounts as are reasonable and
-38-
customary to be insured against by similarly situated companies in the same or
similar businesses, all of such insurance policies are in full force and effect
and are valid, outstanding and enforceable, and all premiums due thereon have
been paid currently.
(b) Ascent Arena Entities Insurance Policies. The Ascent Arena
----------------------------------------
Entities have the benefit, pursuant to policies carried by such entities or by
the Construction Contractor for their benefit, of policies of fire and casualty,
general liability and excess or umbrella liability, builder's risk, business
automotive, workers' compensation, employers' liability, business interruption
and other forms of insurance in such amounts, with such deductibles and against
such risks and losses as are reasonable in relation to the operation of the
businesses of such entities, including without limitation construction of the
Pepsi Center, and which comply in all respects with the insurance requirements
set forth in the Operating and Management Agreement. All such policies are in
full force and effect, all premiums due and payable thereon as of the date
hereof have been paid, and no notice of cancellation or termination has been
received with respect to any such policy which policy has not been replaced
prior to the date of such cancellation. The activities of the Ascent Arena
Entities have been conducted in a manner so as to conform in all material
respects to all applicable provisions of such insurance policies. Except as set
forth on Schedule 5.10(b), the coverage of such policies will not cease upon
----------------
Closing, and to the Actual Knowledge of AEG the Ascent Arena Entities will
continue to be entitled to the benefits of such policies assuming compliance
post-Closing by Purchasers with the terms and conditions of such policies.
5.11 Tax Matters.
-----------
(a) Corporate Entities.
------------------
(i) All Returns required to be filed by or on behalf of any
Corporate Entity have been duly filed on a timely basis and all Returns filed by
or on behalf of a Corporate Entity (including all attached statements and
schedules) are true, complete and correct in all respects, except for such
failures to file and failures to be true, complete and correct as would not,
individually or in the aggregate, have a Material Adverse Effect. No claim has
been made or threatened in writing by any jurisdiction where a Corporate Entity
does not file returns that the Corporate Entity is or may be subject to Taxes in
that jurisdiction. All Taxes shown to be payable on such Returns or on
subsequent assessments with respect thereto have been paid in full on a timely
basis. No other Taxes are payable by any Corporate Entity with respect to items
or periods covered by such Returns (whether or not shown on or reportable on
such Returns), except for such Taxes as would not, individually or in the
aggregate, have a Material Adverse Effect.
(ii) Each Corporate Entity has withheld and paid over all Taxes
required to have been withheld and paid over (including any estimated taxes),
and has complied with all information reporting and backup withholding
requirements, including maintenance of required records with respect thereto, in
connection with amounts paid or owing to any employee, creditor, independent
contractor or other third party, except for such failures to
-39-
withhold or pay over and such failures to comply as would not, individually or
in the aggregate, have a Material Adverse Effect.
(iii) There are no Liens on any of the Assets of any Corporate
Entity with respect to Taxes, other than Liens for Taxes not yet due and payable
or for Taxes that are being contested in good faith through appropriate
proceedings and for which appropriate reserves have been established, except for
such Liens as would not, individually or in the aggregate, have a Material
Adverse Effect.
(iv) Except as disclosed on Schedule 5.11(a)(iv) attached
--------------------
hereto, none of the Corporate Entities has ever been included in an affiliated
group of corporations, within the meaning of section 1504 of the Code and none
has ever been a member of any combined or unitary group in each case other than
a group, the common parent of which is AEG.
(v) For all periods beginning on or after July 1, 1997, each
of the Corporate Entities has joined in the filing of, or will join in the
filing of, consolidated federal income tax returns as part of the consolidated
group of which AEG is the parent company and has joined in the filing of, or
will join in the filing of, consolidated, combined or unitary state income tax
returns as part of a consolidated, combined or unitary group of which AEG is the
parent company for the states listed on Schedule 5.11(a)(v) attached hereto.
----------
(vi) Except as set forth on Schedule 5.11(a)(vi) attached
--------------------
hereto, Seller has furnished Purchasers with true and complete copies of all
Returns with respect to Income Taxes of each Corporate Entity for all years
beginning after December 31, 1995 with respect to which the statute of
limitations does not bar a tax assessment. Prior to Closing, Seller shall make
available to Purchasers, during normal business hours, true and complete copies
of all other Returns of each Corporate Entity for all periods beginning after
December 31, 1995 (and with respect to periods beginning on or before December
31, 1995, any other Returns in Seller's possession), all tax audit reports, work
papers, statements of deficiencies, closing or other agreements received by a
Corporate Entity or on its behalf relating to Taxes for all periods beginning
after December 31, 1995 (and with respect to periods beginning on or before
December 31, 1995, any tax audit reports, work papers, statements of
deficiencies, closing or other agreements received by a Corporate Entity or on
its behalf relating to Taxes that are in Seller's possession), and Purchasers
shall be permitted to inspect and make copies of such Returns, audit reports,
work papers, statements and agreements.
(vii) None of the Corporate Entities does or, on or after the
Prior Agreement Effective Date, did business in, or derives or, on or after the
Prior Agreement Effective Date, derived a material amount of income from, any
state, local, territorial or foreign taxing jurisdiction other than those for
which Returns have been furnished to Purchasers.
(viii) Except for items disclosed on Schedule 5.11(a)(viii)
----------------------
attached hereto:
(A) None of the Returns of any Corporate Entity has
ever been audited by a governmental or taxing authority and there are no audits,
inquiries, investigations or
-40-
examinations relating to any such Returns pending or, to the Knowledge of Seller
threatened in writing.
(B) No deficiencies exist or have been asserted in writing
with respect to Taxes of any Corporate Entity and no written notice has been
received by a Corporate Entity with respect to the failure to file any Return or
pay any Taxes.
(C) No Corporate Entity is a party to any action or
proceeding for assessment or collection of Taxes, nor has any such action or
proceeding been asserted or threatened in writing against it or any of its
assets.
(D) No extension of time to file any Return (which has not
been filed) has been requested by or granted by a Corporate Entity. No waiver or
extension of any statute of limitations is in effect with respect to Taxes or
Returns of a Corporate Entity.
(E) Except as provided on Schedule 5.11(a)(viii) attached
----------------------
hereto, no Corporate Entity is a party to any tax sharing agreement, tax
indemnity agreement, tax allocation agreement, or similar arrangement with any
person.
(F) The amount of each Corporate Entity's liability for
unpaid Taxes for all periods ending on or before March 31, 1999, determined on a
GAAP basis (taking into account the Return Preparation Standard) does not exceed
the amount of the current liability accruals for Taxes (excluding reserves for
deferred Taxes) as of that date, and the amount of each Corporate Entity's
liability for unpaid Taxes for all periods ending on or before the Closing Date
determined on a GAAP basis (taking into account the Return Preparation Standard)
will not exceed the amount of the current liability accruals for Taxes
(excluding reserves for deferred Taxes) as such accruals will be reflected on
the balance sheet of the Corporate Entity as of the Closing Date except to the
extent any excess of such Taxes over the relevant current liability accrual
amount would not have a Material Adverse Effect.
(ix) Subject to the items disclosed on Schedule 5.11(a)(ix)
--------------------
attached hereto:
(A) No Corporate Entity is required to treat any Asset as
owned by another person for federal income tax purposes or as tax-exempt bond
financed property or tax-exempt use property within the meaning of Section 168
of the Code. No Corporate Entity has made or is bound by any election under
section 197(f)(9)(B) of the Code.
(B) No election has been made under Section 338 of the Code
with respect to a Corporate Entity and no action has been taken that would
result in any income tax liability to a Corporate Entity as a result of a deemed
election within the meaning of Section 338 of the Code.
(C) No Corporate Entity has disposed of any property that is
currently being accounted for under the installment method.
-41-
(D) Within the last five years, no Corporate Entity has
agreed to make, and has not been required to make, any adjustment under Code
Section 481 by reason of a change in accounting method or otherwise.
(E) None of the assets or operations of any Corporate Entity
is subject to any joint venture, partnership or other arrangement or contract
that is treated as a partnership for federal income tax purposes, excluding the
assets and operations of the Partnership Entities.
(F) No Corporate Entity has made elections comparable to
those described in this Section under any state, local or foreign tax laws or is
required to apply any rules comparable to those described in this Section under
any state, local or foreign tax laws.
(G) The transactions contemplated hereby are not subject to
the tax withholding provisions of Section 3406 of the Code, or of Subchapter A
of Chapter 3 of the Code, or of any other provision of law.
(b) Partnership Entities.
--------------------
(i) All Returns required to be filed by or on behalf of any
Purchased Entity that is a limited partnership or limited liability company,
other than LLC-I and LLC-II (each a "Partnership Entity"), have been duly filed
------------------
on a timely basis and all Returns filed by or on behalf of each Partnership
Entity (including all attached statements and schedules) are true, complete and
correct in all respects, except for such failures to file and failures to be
true, complete and correct as would not, individually or in the aggregate, have
a Material Adverse Effect. No claim has been made or threatened in writing by
any jurisdiction where a Partnership Entity does not file returns that the
Partnership Entity is or may be subject to Taxes in that jurisdiction. All Taxes
shown to be payable on such Returns or on subsequent assessments with respect
thereto have been paid in full on a timely basis. No other Taxes are payable by
any Partnership Entity with respect to items or periods covered by such Returns
(whether or not shown on or reportable on such Returns) except for such Taxes as
would not, individually or in the aggregate, have a Material Adverse Effect.
(ii) Each Partnership Entity has withheld and paid over all
Taxes required to have been withheld and paid over (including any estimated
taxes), and has complied with all information reporting and backup withholding
requirements, including maintenance of required records with respect thereto, in
connection with amounts paid or owing to any employee, creditor, independent
contractor or other third party, except for such failures to withhold and pay
over and such failures to comply as would not, individually or in the aggregate,
have a Material Adverse Effect.
(iii) There are no Liens on any of the Assets of a Partnership
Entity with respect to Taxes, other than Liens for Taxes not yet due and payable
or for Taxes that are being contested in good faith through appropriate
proceedings and for which appropriate reserves have been established, except for
such Liens as would not, individually or in the aggregate, have a Material
Adverse Effect.
-42-
(iv) Except as set forth on Schedule 5.11(b)(iv) attached
--------------------
hereto, Seller has furnished Purchasers with true and complete copies of all
Returns with respect to Income Taxes of each Partnership Entity (other than
Mountain Mobile) for all years with respect to which the statute of limitations
does not bar a tax assessment. Prior to Closing, Seller shall make available to
Purchasers, during normal business hours, true and complete copies of all other
Returns of each Partnership Entity (other than Mountain Mobile), all tax audit
reports, work papers, statements of deficiencies, closing or other agreements
received by a Partnership Entity (other than Mountain Mobile) or on its behalf
relating to Taxes, and Purchasers shall be permitted to inspect and make copies
of such Returns, audit reports, work papers, statements and agreements.
(v) No Partnership Entity does business in or derives a
material amount of income from any state, local, territorial or foreign taxing
jurisdiction other than those for which Returns have been furnished to
Purchasers.
(vi) Each Partnership Entity has been properly classified as a
"partnership" for federal income tax purposes at all times since its formation.
(vii) Subject to items disclosed on Schedule 5.11(b)(vii)
---------------------
attached hereto:
(A) None of the Returns of a Partnership Entity or of any
partner of a Partnership Entity, which partner is an Affiliate of Seller, in its
capacity as a partner in such Partnership Entity, has ever been audited by a
governmental or taxing authority and there are no audits, inquiries,
investigations or examinations relating to any such Returns pending or, to the
Knowledge of Seller, threatened in writing.
(B) No deficiencies exist or have been asserted in writing
with respect to Taxes of any Partnership Entity or of any partner of a
Partnership Entity, which partner is an Affiliate of Seller, in its capacity as
a partner in such Partnership Entity, and no written notice has been received by
a Partnership Entity or any such partner with respect to the failure to file any
Return or pay any Taxes.
(C) No Partnership Entity or any partner of a Partnership
Entity which partner is an Affiliate of Seller is a party to any action or
proceeding for assessment or collection of Taxes, nor has such action or
proceeding been asserted or threatened in writing against it or any of its
assets.
(D) No extension of time to file any Return (which has not
been filed) has been requested by or granted to a Partnership Entity. No waiver
or extension of any statute of limitations is in effect with respect to Taxes or
Returns of a Partnership Entity.
(E) No Partnership Entity is a party to any tax sharing
agreement, tax indemnity agreement, tax allocation agreement, or similar
arrangement with any person.
-43-
(F) The amount of each Partnership Entity's liability for
unpaid Taxes for all periods ending on or before March 31, 1999, determined on a
GAAP basis (taking into account the Return Preparation Standard) does not exceed
the amount of the current liability accruals for Taxes (excluding reserves for
deferred Taxes) as of that date, and the amount of a Partnership Entity's
liability for unpaid Taxes for all periods ending on or before the Effective
Date determined on a GAAP basis (taking into account the Return Preparation
Standard) will not exceed the amount of the current liability accruals for Taxes
(excluding reserves for deferred Taxes) as such accruals will be reflected on
the balance sheet of the Partnership Entity as of the Effective Date, except to
the extent any excess of such Taxes over the relevant current liability accrual
amount would not have a Material Adverse Effect.
(viii) Subject to the items disclosed on Schedule 5.11(b)(viii)
----------------------
attached hereto:
(A) No Partnership Entity is required to treat any asset
as owned by another person for federal income tax purposes or as tax-exempt bond
financed property or tax-exempt use property within the meaning of section 168
of the Code. No Partnership Entity has made or is bound by any election under
Section 197(f)(9)(B) of the Code.
(B) No Partnership Entity has disposed of any property
that is currently being accounted for under the installment method.
(C) Within the last five years, no Partnership Entity has
agreed to make, and has not been required to make, any adjustment under Code
Section 481 by reason of a change in accounting method or otherwise.
(D) No Partnership Entity is a member of any joint venture
or partnership or a party to any other arrangement or contract that is treated
as a partnership for federal income tax purposes.
(E) No Partnership Entity has made elections comparable to
those described in this section under any state, local or foreign tax law or is
required to apply any rules comparable to those described in this section under
any state, local or foreign tax laws.
(F) The transactions contemplated hereby are not subject
to the tax withholding provisions of Section 3406 of the Code, or of Subchapter
A of Chapter 3 of the Code, or of any other provision of law.
(c) Other Matters.
-------------
(i) For federal income tax purposes, LLC-I and LLC-II are each
a single member entity that is a disregarded entity under applicable Treasury
Regulations (that is, for federal income tax purposes, LLC-I and LLC-II each
will be considered a division of HC, the only member of each, and will not be
treated as a separate entity).
-44-
(ii) On the day before the Closing Date, AEG will transfer
ownership of all of the stock of Ascent Development Corp. to HC, a wholly owned
subsidiary of AEG, and will cause Ascent Development Corp. to be merged into
LLC-II under applicable state law with LLC II surviving. The merger of Ascent
Development Corp. into LLC-II will qualify as a liquidation of Ascent
Development Corp. under Section 332 of the Code.
(iii) On the day before the Closing Date, AEG will transfer
ownership of all the stock of Ascent Sports to HC, a wholly owned subsidiary of
AEG, and will cause Ascent Sports to be merged into LLC-I under applicable state
law with LLC-I surviving. The merger of Ascent Sports into LLC-I will qualify
as a liquidation of Ascent Sports under Section 332 of the Code.
5.12 Sports Entities.
---------------
(a) Absence of Certain Changes. Except as set forth in Schedule
-------------------------- --------
5.12(a) attached hereto, since the Balance Sheet Date there has not been any
-------
event, occurrence, or change in the Business of any of the Sports Entities
(including any uninsured damage, destruction or other casualty loss) or change
affecting such Business except as would not constitute a Material Adverse
Effect.
(b) Sports Entities Contracts.
------------------------
(i) As of the Prior Agreement Effective Date, Schedule
--------
5.12(b)(i) attached hereto contains an accurate and complete list of all Sports
----------
Entities Contracts, including all amendments thereto and modifications thereof
(whether written or oral). Seller shall deliver to Purchasers an updated version
of Schedule 5.12(b)(i) on the Closing Date.
(ii) Seller has provided true and correct copies of the Sports
Entities Contracts to New Sports. As of the Prior Agreement Effective Date, each
of the Sports Entities Contracts is in full force and effect and is binding upon
and enforceable in accordance with its terms against the Sports Entities and, to
the Knowledge of Seller, each other party thereto subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general principles
of equity (whether or not such enforcement is considered in a Proceeding at law
or in equity). As of the Closing Date, each of the Sports Entities Contracts
will be in full force and effect and will be binding upon and enforceable in
accordance with its terms against the Sports Entities and, to the Knowledge of
Seller, each other party thereto subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting creditors' rights generally and (ii) general principles of equity
(whether or not such enforcement is considered in a Proceeding at law or in
equity), except for any failure to be in full force and effect or to be so
binding and enforceable as would not have a Material Adverse Effect.
(iii) Except as disclosed in Schedule 5.12(b)(i) with respect to
the Local Television License Agreement, there has not occurred any default,
event of default or, to the Knowledge of Seller any circumstance that with
notice of the passage of time, or both, would constitute a default or event of
default of the Sports Entities or, to the Knowledge of Seller, of
-45-
any other party to a Sports Entities Contract, except in either case for any
defaults or events of default that would not constitute a Material Adverse
Effect.
(iv) Except as set forth in the Sports Entities Contracts
themselves, no Sports Entity has assigned any of its rights pursuant to any
Sports Entities Contract to any Person, and each applicable Sports Entity holds
its rights pursuant to the Sports Entities Contracts free and clear of any Lien.
(c) Arena Land.
----------
(i) Nuggets LP has good and marketable title to the Arena Land,
subject to the Permitted Liens. Subject to the Permitted Liens, there are no
outstanding rights of first refusal, rights of reverter or options relating to
the Arena Land or any interest therein. To Seller's Knowledge, except as
disclosed on Exhibit B, there are no unrecorded or undisclosed documents or
other matters which affect title to the Arena Land. No person holding a
security interest in the Arena Land or any part thereof has the right to consent
or deny consent to the sale of the Arena Land as contemplated herein, other than
the City Consent.
(ii) The current zoning of the Arena Land is PUD 440, which
permits the current improvements thereon (including, without limitation, the
Pepsi Center) and Seller's currently contemplated uses of the Arena Land, and
there is no pending or, to the Knowledge of Seller, contemplated rezoning.
(iii) To the Knowledge of Seller, there is no violation of any
Applicable Law or the VCUP relating to the Arena Land that would constitute a
Material Adverse Effect. Nuggets LP has not leased or subleased any parcel or
any portion of the Arena Land (other than pursuant to the Ground Lease) to any
other Person.
(iv) There are no condemnation proceedings or eminent domain
proceedings of any kind pending or, to the Knowledge of Seller, threatened
against the Arena Land.
(v) No improvements on the Arena Land and none of Seller's
currently contemplated uses violate, or will violate, in any material respect
any applicable deed restrictions or other applicable covenants, restrictions,
agreements, existing site plan approvals, zoning or subdivision regulations or
urban redevelopment plans as modified by any duly issued variances. No permits,
licenses or certificates pertaining to the ownership or operation of all
improvements on the Arena Land, other than those which are transferable with the
Arena Land, are required by any Governmental Authority having jurisdiction over
the Arena Land.
(vi) To the Knowledge of Seller, all improvements on the Arena
Land are wholly within the lot limits of the Arena Land and do not encroach on
any adjoining premises, and other than the Permitted Liens, there are no
encroachments on the Arena Land by any improvements located on any adjoining
premises.
-46-
(vii) Ascent Arena Company is the lessee of the Arena Land
pursuant to the Ground Lease. Neither Ascent Arena Company, as lessee, nor
Nuggets LP, as lessor, is in default under the Ground Lease, and there has not
occurred any event or circumstance that, with notice or the passage of time, or
both, would constitute a default under the Ground Lease.
(viii) The Purchased Entities, as applicable, have obtained and
currently hold all approvals, authorizations, certificates, consents, licenses,
orders, and permits or other similar authorizations of all Governmental
Authorities that are required to their stage of construction as of the Prior
Agreement Effective Date under any Applicable Law to permit development of the
Pepsi Center on the Arena Land.
(ix) All easements required or necessary as of the Prior
Agreement Effective Date for Seller's intended use and development of the Arena
Land and the Pepsi Center have been conveyed.
(d) Tangible Assets. The Sports Entities own and have good title to
---------------
or, in the case of leased properties or properties held under license, a good
and valid leasehold or license interest in, all of their material Assets
reflected in the Financial Statements, Nuggets Balance Sheet and the Avalanche
Balance Sheet, except those Assets disposed of in the ordinary course of
business after the date thereof, free and clear of all Liens.
(e) Affiliate Contracts. As of the Prior Agreement Effective Date,
-------------------
Schedule 5.12(e) attached hereto identifies all Sports Entities Contracts
----------------
between any Sports Entity, on the one hand, and any Affiliate of such Sports
Entity, on the other hand. Seller shall deliver to Purchasers an updated
version of Schedule 5.12(e) on the Closing Date.
(f) Permits; Required Consents.
--------------------------
(i) Schedule 5.12(f)(i) attached hereto sets forth all
-------------------
material certificates, licenses, orders and permits or other similar
authorizations of all Governmental Authorities (and all other Persons) necessary
for the operation of the Sports Entities and their respective Businesses in
substantially the same manner as currently operated (the "Sports Entities
---------------
Permits").
-------
(ii) As of the Effective Date and the Closing Date, Schedule
--------
5.12(f)(ii) attached hereto lists (A) each governmental or other registration,
-----------
filing, application, notice, transfer, consent, approval, order, qualification
and waiver (each, a "Sports Entities Required Governmental Approval") required
----------------------------------------------
under Applicable Law to be obtained by the Sports Entities by virtue of the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby to avoid the loss of any material Sports Entities Permit,
and (B) each Sports Entities Contract with respect to which the consent of the
other party or parties thereto that must be obtained by the applicable Sports
Entity by virtue of the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby (each, a "Sports Entities
---------------
Required Contractual Consent" and collectively with the Sports Entities Required
----------------------------
Governmental Approvals, the "Sports Entities Required Consents"). Except as set
---------------------------------
forth in Schedule 5.12(f)(i) attached hereto, each Sports Entities Permit is
valid and in full force
-47-
and effect in all material respects and, assuming the related Sports Entities
Required Consents have been obtained prior to the Closing Date, are, or will be,
transferable by the applicable Sports Entity and will be in full force and
effect immediately after the Closing.
(g) Compliance with Laws. Except as set forth in Schedule 5.12(g)
-------------------- ----------------
attached hereto, the Sports Entities are operating their respective Businesses
in compliance in all material respects with all Applicable Laws, or any material
order, writ, injunction or decree of any Governmental Authority.
5.13 Ascent Arena Entities.
---------------------
(a) Denver Arena Trust. Ascent Arena Company has not received any
------------------
distributions of the Residual Interest or other amounts pursuant to the Trust
Agreement.
(b) Licenses. As of the Prior Agreement Effective Date and to the
--------
Knowledge of Seller, the Ascent Arena Entities hold all licenses, franchises,
authorizations, permits, and approvals (collectively, the "Licenses") which are
--------
necessary for or material to construction, ownership, use, operation or
maintenance of the Pepsi Center which are required to their stage of
construction as of the Prior Agreement Effective Date. As of the Closing Date,
the Ascent Arena Entitles will hold all Licenses necessary for or material to
construction, ownership, use, operation or maintenance of the Pepsi Center which
are required to their stage of construction as of the Closing Date. No License
has been revoked or suspended, and to the Knowledge of Seller, no such
revocation or suspension is pending or threatened. To the Actual Knowledge of
Seller, the Licenses will be in full force and effect immediately after the
Closing.
(c) Title to Assets. The Ascent Arena Entities hold good title to
---------------
all of their respective material Assets reflected in the Financial Statements,
except those Assets disposed of in the ordinary course of business after the
date thereof, free and clear of all Liens.
(d) Advance Booking Contracts. As of the Prior Agreement Effective
-------------------------
Date, Schedule 5.13(d) attached hereto sets forth all material advance bookings
----------------
for events or entertainment at the Pepsi Center (collectively, the "Advance
-------
Booking Contracts"). Seller shall deliver to Purchasers an updated version of
-----------------
Schedule 5.13(d) on the Closing Date.
(e) Ascent Arena Entity Contracts. Except for the Contracts
-----------------------------
disclosed in Schedule 5.13(d) and the Arena Contracts identified in Article I,
Schedule 5.13(e) attached hereto contains, as of the Prior Agreement Effective
----------------
Date, an accurate and complete list of all material Contracts to which any
Ascent Arena Entity is a party or by which it is bound. Seller shall deliver to
Purchasers an updated version of Schedule 5.13(e) on the Closing Date.
5.14 Pepsi Center.
------------
(a) Construction Issues.
-------------------
(i) Seller has made available to New Arena true and complete
copies of the Plans and Specifications and all written inspection and status
reports
-48-
regarding construction of the Pepsi Center, including without limitation, those
reports delivered to Denver Arena Trust or the Indenture Trustee by its
construction consultant (the "Construction Reports").
--------------------
(ii) The budget for development, construction and financing of
the Pepsi Center and Development Property is attached to this Agreement as
Exhibit C (the "Construction Budget"). Exhibit C sets forth, as of March 31,
--------- -------------------
1999, (A) the total amounts incurred, reserved or paid, (B) the total estimated
amounts which are not yet paid in connection with construction of the Pepsi
Center, and (C) the balance of funds in the Construction Fund Account (the
"Construction Account Balance").
----------------------------
(iii) Interim lien waivers have been obtained from the
Architect, Construction Contractor and all subcontractors, materialmen and
suppliers performing any work or supplying any materials with respect to the
Pepsi Center, pursuant to which each such Person has waived all lien rights and
claims with respect to all interim payments made to such Person. Neither Seller
nor any of its Affiliates have received a notice of intent to file a lien
against the Arena Land or the Pepsi Center, and no mechanics' lien or claim of
lien has been asserted or threatened against the Arena Land or the Pepsi Center
that has not been resolved as of the Prior Agreement Effective Date.
(iv) All portions of the Pepsi Center constructed as of the
Prior Agreement Effective Date and as of Closing are located on the Arena Land,
without encroachment onto any other real property. To Seller's Knowledge, all
portions of the Pepsi Center constructed as of the Prior Agreement Effective
Date and as of the Closing have been constructed substantially in accordance
with the Plans and Specifications, and other than as disclosed in the
Construction Reports, there are no structural defects in those portions of the
Pepsi Center which have been constructed.
(v) Utility service lines and connections necessary to provide
water, sewer, gas, electricity and telephone service to the Pepsi Center at
levels sufficient to support its construction, operation, use and maintenance in
accordance with the Arena Agreement are being or will be installed and available
for use by the completion of the Pepsi Center.
(vi) The Plans and Specifications have been approved by all
governmental authorities, design review committees and similar entities whose
approval of construction or use of the Pepsi Center is required prior to or at
the current stage of construction under any Applicable Law, covenant, condition,
restriction or reservation. All such approvals remain effective, and, to the
Knowledge of Seller, there exist no violations of such approvals or conditions
of such approvals which have not been satisfied.
(vii) Attached hereto as Exhibit D is a true and correct copy of
---------
the Construction Contractor's Critical Path Report received by Seller on April
17, 1999 from Construction Contractor. To the Knowledge of Seller, Exhibit D
sets forth a complete and accurate statement of the status of construction of
the Pepsi Center as of April 17, 1999.
(viii) Except as disclosed in the Construction Reports or Exhibit
D, the Construction Contractor has not notified Seller or any of its Affiliates
that (A) the target
-49-
completion date for the construction of the Pepsi Center will not be met; (B) a
force majeure event has occurred with respect to the Construction Contractor's
performance, or (C) any defect or deficiency exists in any portion of the Pepsi
Center which has been constructed.
(ix) As of the Effective Date, there is no pending or, to the
Knowledge of Seller, threatened labor dispute, strike or work stoppage with
respect to construction of the Pepsi Center.
(x) All supplies and materials to be incorporated into the
Pepsi Center or used in constructing the Pepsi Center, and which have been paid
for or for which Ascent Arena Company is obligated to pay, are stored at the
Arena Land, except as otherwise permitted pursuant to the Construction Phase
Agreement.
(b) Arena Contracts.
---------------
(i) Seller has provided New Arena with true and complete copies
of the Arena Contracts. Each of the Arena Contracts is in full force and effect
and is binding upon and enforceable in accordance with its terms against the
Ascent Arena Entities and, to the Knowledge of Seller, each other party thereto
subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors' rights generally and
(ii) general principles of equity (whether or not such enforcement is considered
in a Proceeding at law or in equity).
(ii) [Intentionally omitted.]
(iii) Except as disclosed on Schedule 5.14(b)(iii), there has not
---------------------
occurred any material default, event of default or circumstance that with notice
or the passage of time, or both, would constitute a material default or material
event of default of any Ascent Arena Entities under any Arena Contract or, to
the Knowledge of Seller, any material default or material event of default of
any other party to an Arena Contract.
(iv) Except as set forth in the Contracts themselves, no Ascent
Arena Entity has assigned any of its rights pursuant to any Arena Contract to
any Person, other than pursuant to the City Lien and the Trustee's Lien, and
each Ascent Arena Entity holds its rights pursuant to the Arena Contracts, free
and clear of any Lien.
(v) Except as set forth in Schedule 5.14(b)(v) attached
-------------------
hereto, Ascent Arena Company has not delegated any of its duties pursuant to the
Sale and Servicing Agreement, other than pursuant to the subservicing portions
of the Operating and Management Agreement.
(vi) Seller has delivered to New Arena true and complete copies
of all Servicer's Remittance Reports prepared and delivered to the Indenture
Trustee pursuant to the Sale and Servicing Agreement.
-50-
(vii) Fees payable to Ascent Arena Company pursuant to the Sale
and Servicing Agreement have not been prepaid, and Ascent Arena Company is
entitled to receipt of such fees as provided in the Sale and Servicing
Agreement.
(viii) Other than as set forth in the Arena Contracts, no
prepayments have been made under any Arena Contract.
(ix) A true and correct copy of the current annual operating
budget for the Pepsi Center prepared pursuant to the Operating and Management
Agreement was delivered to New Arena pursuant to this Agreement. Such operating
budget constitutes a reasonable estimate of the annual operating expenses for
operation of the Pepsi Center based upon reasonable assumptions in light of
current circumstances regarding the operation of the Pepsi Center under Seller's
indirect ownership.
(x) Seller has no Knowledge of any event or circumstance that
would limit or impair in any material respect DURA's obligation or ability to
honor its reimbursement or payment obligations pursuant to the Redevelopment
Agreement.
(c) Accounts. As of June 21, 1999, the balances of the Accounts are
--------
as set forth on Schedule 5.14(c) attached hereto. All required deposits into
----------------
and transfers among the Accounts have been made in compliance with the Sale and
Servicing Agreement.
5.15 Mountain Mobile.
---------------
(a) No Defaults. To the Actual Knowledge of Seller, Mountain Mobile
-----------
is not in default of any obligation to any Person pursuant to any Contract which
default would have a Material Adverse Effect.
(b) No Additional Capital Contributions or Loans. By virtue of
--------------------------------------------
becoming a member of Mountain Mobile, New Sports will not have any obligation to
contribute capital or make loans to Mountain Mobile except to the extent
provided in or permitted by the Operating Agreement of Mountain Mobile delivered
to New Sports pursuant to this Agreement.
(c) Compliance with Laws. Except as set forth in Schedule 5.15(c)
-------------------- ----------------
attached hereto, to the Actual Knowledge of Seller, Mountain Mobile has operated
its Business in compliance in all material respects with all Applicable Laws, or
any material order, writ, injunction or decree of any Governmental Authority.
5.16 Development Property.
--------------------
(a) As of the Closing, LLC-II will have good and marketable title to
the Development Property subject only to the Permitted Liens. There are no
outstanding rights of first refusal, rights of reverter or options relating to
the Development Property or any interest therein other than the Permitted Liens.
To the Knowledge of Seller, there are no unrecorded or undisclosed documents or
other matters which affect title to the Development Property (other than
Permitted Liens). Neither Ascent Development Corp. nor LLC-II has leased or
subleased
-51-
any parcel or any portion of any parcel of the Development Property to any other
Person other than pursuant to the Conoco Lease.
(b) To the Knowledge of Seller, neither Ascent Development Corp. nor
LLC-II has committed any violation of any Applicable Law (including, without
limitation, any building, planning or Applicable Law related to zoning and all
approvals, authorizations, certificates, consents, licenses, orders, and permits
or other similar authorizations of all Governmental Authorities (and all other
Persons) required under VCUP and any other Environmental Law) relating to any of
the Development Property, other than such violations that would not have a
Material Adverse Effect.
(c) There are no condemnation proceedings or eminent domain
proceedings of any kind pending or, to the Knowledge of Seller, threatened
against any of the Development Property.
(d) Other than pursuant to the Conoco Lease, the Development Property
is vacant, unimproved land having a zoning classification of PUD 440 pursuant to
Applicable Law related to zoning.
(e) To the Knowledge of Seller, other than Permitted Liens, there are
no encroachments onto the Development Property by any improvements located on
any adjoining premises, including without limitation the Arena Land.
5.17 Advisory Fees. No Seller has retained or authorized any
-------------
investment banker, broker, finder or other intermediary or advisor to act on
behalf of Seller or any of its respective Affiliates in connection with the
Transactions contemplated by this Agreement, except for the Financial Advisors
as financial advisors to Seller. Seller shall be solely responsible for all
costs and expenses due the Financial Advisors.
5.18 Operations Under Prior Agreement. From the Prior Agreement
--------------------------------
Effective Date through the Effective Date, AEG has performed and complied in all
material respects with all of the terms of Sections 3.1 and 3.2 of the Prior
Agreement that were required to be performed and complied with by AEG under the
Prior Agreement during such period.
5.19 No Other Representations or Warranties. The Purchasers
--------------------------------------
acknowledge that Seller has not made and does not make, and the Purchasers have
not relied on, any representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Article V.
-52-
ARTICLE V-A.
REPRESENTATIONS AND WARRANTIES OF LDA
As an inducement to enter into this Agreement, LDA represents and
warrants to Purchasers that the following matters are true and correct as of the
Effective Date and as of the Closing Date unless limited to a specific date.
5A.1 General Limited Liability Company Matters.
-----------------------------------------
(a) Organization and Standing. LDA
-------------------------
(i) is a limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation;
(ii) has full power and authority to own its Ascent Arena
Company Membership Interest; and
(iii) is qualified or licensed to do business in all
jurisdictions where its ownership of its assets or the conduct of its business
requires such qualification or licensing, except where the failure to be so
qualified or licensed would not have a material adverse effect on LDA.
(b) Organizational Documents. LDA has delivered, or will have
------------------------
delivered prior to the Closing, to the Purchasers true and complete copies of
its Organizational Documents.
(c) Corporate Power; Authorization; No Contravention; Consents.
----------------------------------------------------------
(i) LDA has all requisite legal and limited liability company
power to enter into this Agreement and to carry out and perform its obligations
under the terms of this Agreement.
(ii) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary limited liability company action on the part of LDA,
and no other limited liability company proceedings or action on the part of LDA
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby.
(iii) The execution, delivery, and performance by LDA of this
Agreement will not:
(A) conflict with or violate any of LDA's Organizational
Documents; or
(B) conflict with or violate any Applicable Laws (other
than such conflicts or violations that would not have a material adverse effect
on LDA); or
-53-
(C) result in the creation of any Lien on LDA's Ascent
Arena Company Membership Interest, other than any Lien created under this
Agreement; or
(D) require any consent or approval of any third party,
the failure of which to obtain would have a material adverse effect on LDA,
other than any consent of the NBA or the NHL which may be required to consummate
the transactions contemplated in this Agreement.
(d) Binding Effect. This Agreement constitutes a legal, valid and
--------------
binding obligation of LDA, enforceable against LDA in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability.
(e) Governing Authorization. No approval, consent, exemption,
-----------------------
authorization, or other action by, or notice to, or registration, declaration or
filing with, any Governmental Authority is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, LDA of
this Agreement, other than:
(i) compliance with any applicable requirements of the HSR Act
with respect to the consummation of the transactions contemplated hereby;
(ii) compliance with the registration requirements of the
Securities Act, or an exemption therefrom, and any applicable state blue sky
laws and the Securities Exchange Act of 1934; and
(iii) as set forth in this Agreement.
5A.2 Title to LDA's Ascent Arena Company Membership Interest.
-------------------------------------------------------
(a) LDA will have, as of the Closing Date, good title to its Ascent
Arena Company Membership Interest, free and clear of all Liens other than those
created by this Agreement or those created under the Ascent Operating Agreement.
(b) Except as set forth in the Ascent Operating Agreement, there are
no existing Contracts or rights of any character with respect to the purchase,
redemption or acquisition of LDA's Ascent Arena Company Membership Interest,
existing or contingent, at any time, or upon the happening of the stated event.
5A.3 Advisory Fees. LDA has not retained or authorized any investment
-------------
banker, broker, finder or other intermediary or advisor to act on behalf of LDA
or any of its Affiliates in connection with the transactions contemplated by
this Agreement.
5A.4 No Other Representations or Warranties. The Purchasers
--------------------------------------
acknowledge that LDA has not made and does not make, and the Purchasers have not
relied on, any representation or warranty, whether express or implied, or any
kind or character except as expressly set forth in this Article V-A.
-54-
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
As an inducement to Seller to enter into this Agreement, New Sports
and New Arena, as applicable, represent, warrant and covenant to Seller, that
the following matters are true and correct as of the Prior Agreement Effective
Date and as of the Closing Date unless limited to a specific date.
6.1 Existence and Power. As of the Effective Date and as of the
-------------------
Closing Date, each of New Sports and New Arena is a limited liability company
duly formed, validly existing and in good standing under the laws of the State
of Missouri, and will be duly registered in and authorized by the State of
Colorado to transact interstate business in the State of Colorado as of the
Closing Date. Thereby, as of the Effective Date and as of the Closing Date,
each of New Sports and New Arena has all power and authority to enter into this
Agreement and consummate the transactions contemplated hereby and has been duly
authorized by all necessary action on the part of New Sports and New Arena,
respectively. As of the Effective Date and as of the Closing Date, this
Agreement constitutes a legal, valid and binding agreement of each of New Sports
and New Arena, enforceable in accordance with its terms.
6.2 Governmental Authorization. As of the Effective Date and as of
--------------------------
the Closing Date, the execution, delivery and performance by New Sports and New
Arena of this Agreement require no action by, consent or approval of, or filing
with, any Governmental Authority other than:
(a) compliance with the registration requirements of the Securities
Act, or an exemption therefrom, and any applicable state blue sky laws; and
(b) as set forth in this Agreement.
6.3 Non-Contravention. As of the Effective Date and as of the
-----------------
Closing Date, the execution, delivery and performance by New Sports and New
Arena of this Agreement does not and will not (a) contravene or conflict with
the limited liability company agreements of New Sports and New Arena, (b)
contravene or conflict with or constitute a violation of any Applicable Law
binding upon or applicable to New Sports and New Arena, or (c) constitute a
default under any contract, agreement or other commitment to which New Sports
and New Arena is a party or by which it is bound.
6.4 Securities Matters.
------------------
(a) The Equity Interests are being acquired for the Purchasers' own
accounts, for investment and not with a view to, or for resale in connection
with, any distribution or public offering thereof within the meaning of the
Securities Act.
(b) The Purchasers understand that the Equity Interests have not been
registered under the Securities Act by reason of their issuance in a transaction
exempt from the
-55-
registration and prospectus delivery requirements of the Securities Act pursuant
to Section 4(2) thereof, that Seller has no present intention of registering the
Equity Interests, that the Equity Interests must be held by the Purchasers
indefinitely, and that the Purchasers must therefore bear the economic risk of
such investment indefinitely, unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from registration.
(c) During the negotiation of the transactions contemplated herein,
the Purchasers and their representatives have been furnished with and have had
access to such information as the Purchasers have considered necessary to make a
determination as to the purchase of the Equity Interests, have been afforded an
opportunity to ask such questions of Seller and the Purchased Entities'
officers, employees and representatives concerning the Purchased Entities'
business, operations, financial condition, assets, liabilities and other
relevant matters as they have deemed necessary or desirable, and have been given
all such information as has been requested, in order to evaluate the merits and
risks of the prospective investments contemplated herein.
(d) The Purchasers and their representatives have been solely
responsible for the Purchasers own due diligence investigation of the Purchased
Entities and its management and business, for their own analysis of the merits
and risks of this investment, and for their own analysis of the fairness and
desirability of the terms of the investment. In taking any action or performing
any role relative to the arranging of the proposed investment, the Purchasers
have acted solely in their own interest, and none of the Purchasers (or any of
their agents or employees) has acted as an agent of Seller.
(e) Each Purchaser (i) has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risk of such
Purchaser's prospective investment in the Equity Interests; (ii) has the ability
to bear the economic risks of such Purchaser's prospective investment, including
a complete loss of Purchaser's investment in the Equity Interests; and (iii) has
not been offered the Equity Interests by any form of advertisement, article,
notice or other communication published in any newspaper, magazine, or similar
media or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any such media.
6.5 Advisory Fees. No Purchaser has retained or authorized any
-------------
investment banker, broker, finder or other intermediary or advisor to act on
behalf of Purchasers or their Affiliates who might be entitled to any fee,
commission or reimbursement of expenses from Purchasers, Seller or any of its
respective Affiliates upon consummation of the transactions contemplated by this
Agreement.
6.6 [Intentionally omitted.]
6.7 Beneficial Ownership.
--------------------
(a) The Persons who "beneficially own" (within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended) any interests in
the Purchasers (such Persons collectively referred to as the "Principals", and
----------
individually as a "Principal"), and
---------
-56-
the amount of such interests each such Principal "beneficially owns," are set
forth on Schedule 6.7(a) attached hereto. No other Person not listed on
---------------
Schedule 6.7(a) has or will have as of the Closing Date any right, contract,
agreement, arrangement or understanding with respect to any interests in the
Purchasers.
(b) The Purchasers and the Principals understand and acknowledge that
each of the City, the NBA and the NHL have various requirements regarding the
suitability of owners of, respectively, the Arena Company, an NBA franchise and
an NHL franchise, and the Purchasers and the Principals are familiar with such
requirements. To the Knowledge of Purchasers and the Principals, no Person
listed on Schedule 6.7(a) has: (i) ever had a petition under the Federal
bankruptcy laws or any state bankruptcy or insolvency laws filed by or against
such Person or any partnership in which such Person was a general partner at the
time of or within two years prior to such filing, any limited liability company
in which such Person was a member at the time of or within two years prior to
such filing, or any corporation or business association of which such Person was
an executive officer or director at the time of or within two years prior to
such filing; (ii) has been convicted in a criminal proceeding or been named
subject of a pending criminal proceeding (excluding minor traffic violations or
other minor offenses); (iii) been the subject of any order, judgment, or decree
not subsequently reversed, suspended or vacated, of any Governmental Authority,
permanently or temporarily enjoining such Person from, or otherwise, limiting
such Person from, engaging in any type of business activity; (iv) ever had any
ties to or relationships with organized crime or any Persons involved in
organized crime, or (v) engaged in any illegal, unethical or inappropriate
conduct that could reasonably be expected to serve as a basis for any of the
City, the NBA or the NHL to not approve Purchasers or any Principals as an owner
of, respectively, the Arena Company, the Nuggets or the Avalanche.
Additionally, each of the Principals has a net worth and financial liquidity
that are reasonably expected to meet the requirements of the City, the NBA and
the NHL.
6.8 No Other Representations or Warranties. Seller acknowledges that
--------------------------------------
the Purchasers and the Principals have not made and do not make, and Seller has
not relied on, any representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Article VI.
6.9 Financial Matters. Purchasers have, or at Closing will have,
-----------------
sufficient funds available to consummate the transactions contemplated by this
Agreement.
ARTICLE VI-A.
REPRESENTATIONS AND WARRANTIES OF NEW ARENA
As an inducement to LDA to enter into this Agreement, New Arena
represents, warrants and covenants to LDA, that the following matters are true
and correct as of the Effective Date and as of the Closing Date unless limited
to a specific date.
6A.1 Organization and Standing. New Arena is a limited liability
-------------------------
company duly formed, validly existing and in good standing under the laws of the
State of Missouri, and
-57-
will be duly registered in and authorized by the State of Colorado to transact
business in the State of Colorado as of the Closing Date.
6A.2 Authorization. The execution, delivery and performance of this
-------------
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary limited liability company action on the part of
New Arena, and no other limited liability company proceedings or action on the
part of New Arena are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby.
6A.3 Binding Effect. This Agreement constitutes a legal, valid and
--------------
binding obligation of New Arena, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
6A.4 Governmental Authorization. The execution, delivery and
--------------------------
performance by New Arena of this Agreement require no action by, consent or
approval of, or filing with, any Governmental Authority other than as set forth
in Section 6.2.
6A.5 Non-Contravention. The execution, delivery and performance by
-----------------
New Arena of this Agreement do not and will not (a) contravene or conflict with
any Organizational Document of New Arena, (b) contravene or conflict with or
constitute a violation of any Applicable Law binding upon or applicable to New
Arena, or (c) constitute a default under any Contract, agreement or other
commitment to which New Arena is a party or by which it is bound.
6A.6 Advisory Fees. New Arena has not retained or authorized any
-------------
investment banker, broker, finder or other intermediary or advisor to act on
behalf of New Arena or any of its Affiliates in connection with the transactions
contemplated by this Agreement.
6A.7 No Other Representations or Warranties. LDA acknowledges that
--------------------------------------
the Purchasers and the Principals have not made and do not make, and LDA has not
relied on, any representation or warranty, whether express or implied, of any
kind or character except as expressly set forth in this Article VI-A.
6A.8 Financial Matters. Purchasers have, or at Closing will have,
-----------------
sufficient funds available to consummate the transactions contemplated by this
Agreement.
6A.9 Securities Matters.
------------------
(a) The LDA Ascent Arena Company Membership Interest is being
acquired for New Arena's own accounts, for investment and not with a view to, or
for resale in connection with, any distribution or public offering thereof
within the meaning of the Securities Act.
(b) New Arena understands that the LDA Ascent Arena Company
Membership Interest has not been registered under the Securities Act by reason
of its issuance in a transaction exempt from the registration and prospectus
delivery requirements of the Securities
-58-
Act pursuant to Section 4(2) thereof, that LDA has no present intention of
registering the LDA Ascent Arena Company Membership Interest, that the LDA
Ascent Arena Company Membership Interest must be held by New Arena indefinitely,
and that New Arena must therefore bear the economic risk of such investment
indefinitely, unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from registration.
(c) During the negotiation of the transactions contemplated herein,
New Arena and its representatives have been furnished with and have had access
to such information as New Arena has considered necessary to make a
determination as to the purchase of the LDA Ascent Arena Company Membership
Interest, has been afforded an opportunity to ask such questions of LDA and the
Purchased Entities' officers, employees and representatives concerning the
Purchased Entities' business, operations, financial condition, assets,
liabilities and other relevant matters as it has deemed necessary or desirable,
and has been given all such information as has been requested, in order to
evaluate the merits and risks of the prospective investments contemplated
herein.
(d) New Arena and its representatives have been solely responsible
for New Arena's own due diligence investigation of the Purchased Entities and
its management and business, for its own analysis of the merits and risks of
this investment, and for its own analysis of the fairness and desirability of
the terms of the investment. In taking any action or performing any role
relative to the arranging of the proposed investment, New Arena has acted solely
in its own interest, and New Arena (or any of its agents or employees) has not
acted as an agent of LDA.
(e) New Arena (i) has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risk of New
Arena's prospective investment in the LDA Ascent Arena Company Membership
Interest; (ii) has the ability to bear the economic risks of its prospective
investment, including a complete loss of New Arena's investment in the LDA
Ascent Arena Company Membership Interest; and (iii) has not been offered the LDA
Ascent Arena Company Membership Interest by any form of advertisement, article,
notice or other communication published in any newspaper, magazine, or similar
media or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any such media.
6A.10 Beneficial Ownership.
--------------------
(a) The Principals and the amount of such interests each such
Principal "beneficially owns," are set forth on Schedule 6.7(a) attached hereto.
---------------
No other Person not listed on Schedule 6.7(a) has or will have as of the Closing
Date any right, contract, agreement, arrangement or understanding with respect
to any interests in the Purchasers.
(b) The Purchasers and the Principals understand and acknowledge
that each of the City, the NBA and the NHL have various requirements regarding
the suitability of owners of, respectively, the Arena Company, an NBA franchise
and an NHL franchise, and the Purchasers and the Principals are familiar with
such requirements. To the Knowledge of Purchasers and the Principals, no Person
listed on Schedule 6.7(a) has: (i) ever had a petition
-59-
under the Federal bankruptcy laws or any state bankruptcy or insolvency laws
filed by or against such Person or any partnership in which such Person was a
general partner at the time of or within two years prior to such filing, any
limited liability company in which such Person was a member at the time of or
within two years prior to such filing, or any corporation or business
association of which such Person was an executive officer or director at the
time of or within two years prior to such filing; (ii) has been convicted in a
criminal proceeding or been named subject of a pending criminal proceeding
(excluding minor traffic violations or other minor offenses); (iii) been the
subject of any order, judgment, or decree not subsequently reversed, suspended
or vacated, of any Governmental Authority, permanently or temporarily enjoining
such Person from, or otherwise, limiting such Person from, engaging in any type
of business activity; (iv) ever had any ties to or relationships with organized
crime or any Persons involved in organized crime, or (v) engaged in any illegal,
unethical or inappropriate conduct that could reasonably be expected to serve as
a basis for any of the City, the NBA or the NHL to not approve Purchasers or any
Principals as an owner of, respectively, the Arena Company, the Nuggets or the
Avalanche. Additionally, each of the Principals has a net worth and financial
liquidity that are reasonably expected to meet the requirements of the City, the
NBA and the NHL.
ARTICLE VII.
CONDITIONS TO CLOSING
7.1 Conditions to Obligations of Purchasers. The obligations of
---------------------------------------
Purchasers to consummate the Closing are subject to the satisfaction, or waiver
by Purchasers, of each of the following conditions:
(a) Seller shall have performed and complied in all material respects
with all of the terms of this Agreement to be performed and complied with by
Seller prior to or at Closing.
(b) All of the representations and warranties of Seller contained in
this Agreement shall be true and correct in all material respects as of the
Closing Date, except for those representations and warranties which are made as
of a specific date, which shall be true and correct as of such date, and except
for the representations and warranties in subsections (a)(ix)(A), (E), (F), (G)
and (b)(viii)(A), (B), (C), (D) and (E) of Section 5.11 which are not conditions
to Closing.
(c) Seller shall have delivered to Purchasers a certificate signed by
an authorized officer stating that, as of the Closing Date, the conditions set
forth in Sections 7.1(a) and 7.1(b) have been satisfied.
(d) No temporary restraining order, preliminary or permanent
injunction, stay, cease and desist order or other order issued by any court of
competent jurisdiction or any competent Governmental Authority prohibiting the
consummation of the Closing shall be in effect.
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(e) An opinion of Wachtell, Lipton, Xxxxx & Xxxx, special counsel to
Seller, and the General Counsel of Seller, in the form agreed upon by Purchasers
and Seller shall have been delivered to Purchasers.
(f) All material Sports Entities Required Governmental Approvals shall
have been obtained without the imposition of any conditions that would result in
a Material Adverse Effect. All such Sports Entities Required Governmental
Approvals shall be in effect, all applicable waiting periods with respect to
such Sports Entities Required Governmental Approvals shall have expired, and all
conditions and requirements prescribed by Applicable Law or by such Sports
Entities Required Governmental Approvals to be satisfied on or prior to the
Closing Date shall have been satisfied to the extent necessary such that all
such Sports Entities Required Governmental Approvals are in full force and
effect as of the Closing.
(g) All Sports Entities Required Contractual Consents shall have been
obtained without the imposition of any conditions that would constitute a
Material Adverse Effect. All such Sports Entities Required Contractual Consents
shall be effective, and all conditions and requirements prescribed by any such
Sports Entities Required Contractual Consent to be satisfied on or prior to the
Closing Date shall have been satisfied to the extent necessary such that all
such Sports Entities Required Contractual Consents are effective and
enforceable, except as would not constitute a Material Adverse Effect.
(h) The written consent of the NBA and the NHL to the sale of the LLC-
I Membership Interest (if required) and the AEG Nuggets LP Partnership Interest
to New Sports and the sale of the membership interests of Avalanche LLC to New
Sports or one of its Affiliates pursuant to this Agreement shall have been
obtained on customary or otherwise reasonable terms and conditions, which may
include terms and conditions similar to those included in the existing Consent
Agreements of the Avalanche, the existing Agreement and Undertaking of the
Nuggets and otherwise consistent with conditions imposed on former American
Basketball Association teams. New Sports shall have received satisfactory
assurance, either through written confirmation from the NBA that league approval
was obtained at a meeting of the NBA's board of governors, or by a unanimous
authorization by the NBA Member Teams, the NBA, or otherwise in accordance with
such league's Organization Documents, to the transfer of the Nuggets to New
Sports.
(i) The City Consent shall have been obtained without the imposition
of any conditions that would result in a Material Adverse Effect.
(j) Purchasers must have received a certificate from the Architect in
the form of the certificate delivered by the Architect in connection with the
closing of the Indenture.
(k) Purchasers must have received (i) a "date-down" endorsement, in
form and substance reasonably satisfactory to Purchasers, to the existing title
insurance policy covering the Arena Land, and (ii) an extended coverage title
insurance policy covering the Development Property.
-61-
(l) Purchasers must have received evidence satisfactory to it that all
Liabilities of any Purchased Entity to Seller have been forgiven and discharged,
excluding only the Ascent Entertainment Assignment and $2.25 million payable to
AEG from Pepsi (as disclosed in Schedule 3.6).
(m) Purchasers must have received current certificates of good
standing from the Delaware Secretary of State with regard to AEG, LLC-I, Nuggets
LP, LLC-II, and Denver Arena Trust.
(n) Purchasers must have received current certificates of good
standing from the Colorado Secretary of State with regard to Ascent Arena
Company, Arena Operating Company, Avalanche LLC and the Nevada Secretary of
State with regard to Mountain Mobile.
(o) Purchasers must have received a copy of the independent public
accountants' report submitted on May 31, 1999, pursuant to the Sale and
Servicing Agreement, and such report must state that such accountants have
performed certain procedures in connection with Ascent Arena Company's
compliance with respect to its servicing obligations under the Sale and
Servicing Agreement and identify results of such procedures and including any
exceptions and notes.
(p) All documents required to be delivered under Article IV must have
been delivered.
(q) LDA shall have performed and complied in all material respects
with all of the terms of this Agreement to be performed and complied with by LDA
prior to or at Closing.
(r) All of the representations and warranties of LDA contained in this
Agreement shall be true and correct in all material respects as of the Closing
Date, except for those representations and warranties which are made as of a
specific date, which shall be true and correct as of such date.
(s) LDA shall have delivered to Purchasers a certificate signed by an
authorized officer stating that, as of the Closing Date, the conditions set
forth in Section 7.1(q) and 7.1(r) have been satisfied.
7.2 Conditions to Obligations of Seller. The obligations of Seller
-----------------------------------
to consummate the Closing are subject to the satisfaction, or waiver by Seller,
of each of the following conditions:
(a) Purchasers must have performed and complied in all material
respects with all of the terms of this Agreement to be performed and complied
with by Purchasers prior to or at Closing.
(b) The representations and warranties of Purchasers contained in this
Agreement must be true and correct in all material respects as of the Closing
Date.
-62-
(c) No temporary restraining order, preliminary or permanent
injunction, stay, cease and desist order or other order issued by any court of
competent jurisdiction or any competent Governmental Authority prohibiting the
consummation of the Closing shall be in effect.
(d) The NBA shall have released AEG from any guaranty of Nuggets LP's
obligations under the Agreement and Undertaking, dated as of June 27, 1997,
between the NBA, Seller and Nuggets LP.
(e) The NHL shall have released AEG from any guaranty of Avalanche
LLC's obligations under the Consent Agreements, dated as of July 1, 1995 and
June 27, 1997, between the NHL, Seller, and Avalanche LLC.
(f) AEG shall have been released from its guaranty to the City of
performance by Ascent Arena Company, Nuggets LP and Avalanche LLC pursuant to
the Arena Agreement.
(g) Purchasers shall have acknowledged in writing that all Liabilities
of AEG to any Purchased Entity shall have been forgiven and discharged,
excluding only the Liabilities created by this Agreement.
(h) All material Sports Entities Required Governmental Approvals shall
have been obtained without the imposition of any conditions that would result in
a Material Adverse Effect. All such Sports Entities Required Governmental
Approvals shall be in effect, all applicable waiting periods with respect to
such Sports Entities Required Governmental Approvals shall have expired, and all
conditions and requirements prescribed by Applicable Law or by such Sports
Entities Required Governmental Approvals to be satisfied on or prior to the
Closing Date shall have been satisfied to the extent necessary such that all
such Sports Entities Required Governmental Approvals are in full force and
effect as of the Closing.
(i) All Sports Entities Required Contractual Consents shall have been
obtained without the imposition of any conditions that would constitute a
Material Adverse Effect. All such Sports Entities Required Contractual Consents
shall be in effect, all conditions and requirements prescribed by any such
Sports Entities Required Contractual Consent to be satisfied on or prior to the
Closing Date shall have been satisfied to the extent necessary such that all
such Sports Entities Required Contractual Consents are effective and
enforceable, except as would not constitute a Material Adverse Effect.
(j) The written consent of the NBA and the NHL to the sale of the
Ascent Sports Shares and the AEG Nuggets LP Partnership Interest to New Sports
and the sale of the membership interests of Avalanche LLC to New Sports or one
of its Affiliates pursuant to this Agreement shall have been obtained on
customary or otherwise reasonable terms and conditions, which may include terms
and conditions similar to those included in the existing Consent Agreements of
the Avalanche, the existing Agreement and Undertaking of the Nuggets and
otherwise consistent with conditions imposed on former American Basketball
Association teams.
-63-
(k) The City Consent shall have been obtained without the imposition
of any conditions that would result in a Material Adverse Effect.
7.3 Conditions to Obligation of LDA. The obligation of LDA to
-------------------------------
consummate the transactions contemplated by this Agreement at Closing is subject
to the satisfaction, or waiver by LDA, of each of the following conditions:
(a) New Arena shall have performed and complied in all material
respects with all of the terms of this Agreement to be performed and complied
with by New Arena in connection with the purchase and sale of LDA's Ascent Arena
Company Membership Interest prior to or at Closing.
(b) All of the representations and warranties of New Arena contained
in Article VI-A of this Agreement shall be true and correct in all material
respects as of the Closing Date.
(c) New Arena shall have delivered to LDA a certificate signed by an
authorized officer stating that, as of the Closing Date, the conditions set
forth in Section 7.3(a) and 7.3(b) have been satisfied.
(d) No temporary restraining order, preliminary or permanent
injunction, stay, cease or desist order or other order issued by any court of
competent jurisdiction or any Governmental Authority prohibiting the
consummation of the Closing shall be in effect.
(e) All conditions to the obligation of Seller and Purchasers to
consummate the transactions contemplated by this Agreement shall have been
satisfied or, to the extent that such waiver would not have a material adverse
effect on LDA or any Affiliate of LDA, waived.
ARTICLE VIII.
INDEMNIFICATION AND DISPUTE RESOLUTION
8.1 Indemnification of Purchasers by Seller.
---------------------------------------
(a) From and after the Closing Date, subject to the limitations on
indemnification contained in this Article VIII, Purchasers and each of their
respective Affiliates, officers, directors, employees, agents, successors and
assigns (each a "Purchaser Indemnitee") shall be indemnified and held harmless
--------------------
by Seller for any and all Damages, Liabilities, claims, demands, actions, causes
of action, and assessments actually suffered or incurred by them (including,
without limitation, any Proceeding brought or otherwise initiated by any of
them) (hereinafter a "Loss"), arising out of or resulting from:
----
(i) the breach of any representation or warranty made by Seller
contained in this Agreement (other than representations and warranties in
Section 5.11, which shall be separately addressed in Section 5.11), unless
waived by Purchasers (with Purchasers
-64-
being deemed to have waived if Purchasers had actual knowledge of such breach
and nonetheless chose to consummate the transactions contemplated hereby);
(ii) the breach of any covenant or agreement by Seller contained
in this Agreement (other than covenants or agreements in Section 10.5, which
shall be separately addressed in Section 10.5), unless waived by Purchasers
(with Purchasers being deemed to have waived if Purchasers have actual knowledge
of such breach and nonetheless chose to consummate the transactions contemplated
hereby).
(b) Notwithstanding any other provisions of this Section 8.1 and
except as otherwise set forth herein, Seller shall not be required to make any
indemnification payment for Losses unless and until the aggregate amount of all
Losses arising under Section 8.1 exceed $1,500,000 with respect to Avalanche LLC
and $3,500,000 with respect to Nuggets LP, Ascent Sports, the Development
Property, Mountain Mobile and the Ascent Arena Entities, taken as a whole,
(each, a "Basket"), at which point Seller shall indemnify the Purchaser
------
Indemnitees for all Losses in excess of the Basket; provided, however, that (i)
-------- -------
only individual claims in excess of $50,000 will be counted toward the Basket
amounts, and (ii) Purchasers shall not be entitled to indemnification hereunder
for any claims under $50,000, whether or not the Basket has been exceeded.
Except as otherwise set forth herein, the maximum aggregate liability of Seller
to all Purchaser Indemnitees for all Losses shall be limited to $13,500,000 with
respect to the Avalanche, and $31,500,000 with respect to Nuggets LP, Ascent
Sports, the Development Property, Mountain Mobile and the Ascent Arena Entities.
No claim for indemnification for a Loss arising under this Section 8.1 may be
brought after the expiration of the applicable period set forth in Section
11.11. If written notice of a claim has been given prior to the expiration of
the applicable survival period set forth in Section 11.11, then the relevant
representations and warranties shall survive solely as to such claim until the
claim has been finally resolved.
8.2 Indemnification of Seller. From and after the Closing Date,
-------------------------
Seller and each of its respective Affiliates, officers, directors, employees,
agents, successors and assigns (each a "Seller Indemnitee") shall be indemnified
-----------------
and held harmless by Purchasers for any Loss arising out of or resulting from:
(a) the breach of any representation or warranty made by Purchasers
contained in this Agreement; or
(b) the breach of any covenant or agreement by Purchasers contained in
this Agreement.
8.3 Indemnification by LDA of New Arena.
-----------------------------------
(a) From and after the Closing Date, subject to the limitations on
indemnification contained in this Section 8.3, New Arena and each of its
Affiliates, officers, directors, employees, agents, successors and assigns (each
a "New Arena Indemnitee") shall be indemnified and held harmless by LDA for any
--------------------
and all Losses arising out of or resulting from the breach of any representation
or warranty made by LDA contained in this Agreement, unless waived by New Arena
(with New Arena being deemed to have waived if New Area had actual
-65-
knowledge of such breach and nonetheless chose to consummate the transactions
contemplated hereby).
(b) Notwithstanding any other provision of this Section 8.3 and
except as otherwise set forth herein, LDA shall not be required to make any
indemnification payment for Losses unless and until the aggregate amount of all
Losses arising under this Section 8.3 exceeds $100,000 (the "LDA Basket"), at
----------
which point LDA shall only indemnify New Arena Indemnitees for all Losses in
excess of the LDA Basket; provided, however, that (i) only individual claims in
-------- -------
excess of $50,000 will be counted toward the LDA Basket amounts, and (ii) the
New Arena Indemnitees shall not be entitled to indemnification hereunder for any
claims under $50,000, whether or not the LDA Basket has been exceeded. Except
as otherwise set forth herein, the maximum aggregate liability of LDA shall be
limited to $1,000,000 to all New Arena Indemnitees for all Losses. No claim for
indemnification for a Loss arising under this Section 8.3 may be brought after
the expiration of the applicable period set forth in Section 11.11. If written
notice of a claim has been given prior to the expiration of the applicable
survival period set forth is Section 11.11, then the relevant representation and
warranties shall survive solely as to such claim until the claim as been finally
resolved.
8.4 Indemnification of LDA. From and after the Closing Date, LDA and
----------------------
each of its Affiliates, officers, directors, employees, agents, successors and
assigns (each an "LDA Indemnitee") shall be indemnified and held harmless by
--------------
Purchasers for any Loss arising out of or resulting from the breach of any
representation or warranty made by New Arena contained in this Agreement.
8.5 Procedures for Third-Party Claims. Promptly after the receipt by
---------------------------------
a Purchaser Indemnitee, a Seller Indemnitee, a New Arena Indemnitee or an LDA
Indemnitee (any such entity, an "Indemnified Party") of a notice of any claim,
-----------------
action, suit or proceeding by any third party that may be subject to
indemnification hereunder, such Indemnified Party shall give written notice of
such claim to the indemnifying party (the "Indemnifying Party"), stating the
------------------
nature and basis of the claim and the amount thereof, to the extent known.
Failure of the Indemnified Party to give such notice shall not relieve the
Indemnifying Party from liability on account of this indemnification, except to
the extent that the Indemnifying Party is prejudiced thereby. The Indemnifying
Party shall have 30 days from receipt of any such notice of claim to give
written notice of dispute of the claim to the Indemnified Party. If the
Indemnified Party does not receive written notice of the dispute within such 30-
day period, the amount of such Loss shall be conclusively deemed a liability of
the Indemnifying Party. The Indemnifying Party shall have the right to assume
the defense of the Indemnified Party against the third party claim with counsel
of its choice reasonably satisfactory to the Indemnified Party so long as (a)
the Indemnifying Party notifies the Indemnified Party in writing within 30 days
after the Indemnified Party has given notice of the third party claim that the
Indemnifying Party will indemnify the Indemnified Party from the Losses the
Indemnified Party may suffer relating to the third party claim, and (b) the
third party claim involves only money damages and does not seek an injunction or
other equitable relief. So long as the Indemnifying Party is conducting the
defense of the third party claim, (a) the Indemnified Party may retain separate
co-counsel at its sole cost and expense and participate in the defense of the
third party claim, (b) the Indemnified Party will
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not consent to the entry of any judgment or enter into any settlement with
respect to the third party claim without the prior written consent of the
Indemnifying Party (not to be withheld unreasonably), and (c) the Indemnifying
Party will not consent to the entry of any judgment or enter into any settlement
with respect to the third party claim without the prior written consent of the
Indemnified Party (not to be withheld unreasonably). The parties shall use
commercially reasonable efforts to minimize Losses from claims by third parties
and shall act in good faith in responding to, defending against, settling or
otherwise dealing with such claims. The parties shall also cooperate in any such
defense and give each other reasonable access to all information relevant
thereto. Whether or not the Indemnifying Party shall have assumed the defense,
such party shall not be obligated to indemnify the Indemnified Party hereunder
for any settlement entered into without the Indemnifying Party's prior written
consent, which consent shall not be unreasonably withheld or delayed.
8.6 Procedures for Non-Third Party Claims. The Indemnified Party
-------------------------------------
shall notify the Indemnifying Party promptly of its discovery of any matter
giving rise to the claim of indemnity pursuant hereto. Any such notice shall
set forth in reasonable detail and to the extent then known the basis for such
claim for indemnification. Failure of the Indemnified Party to give such notice
shall not relieve the Indemnifying Party from liability on account of this
indemnification, except to the extent that the Indemnifying Party is prejudiced
thereby. The Indemnifying Party shall have 30 days from receipt of any such
notice to give written notice of dispute of the claim to the Indemnified Party.
If the Indemnified Party does not receive written notice of dispute within such
30-day period, the amount of such Loss shall be conclusively deemed a liability
of the Indemnifying Party. The Indemnified Party shall cooperate and assist the
Indemnifying Party in determining the validity of any claim for indemnity by the
Indemnified Party and otherwise resolving such matters. Such assistance and
cooperation will include, but not be limited to, providing access to and copies
of information, records and documents relating to such matters, furnishing
employees to assist in the investigation, defense and resolution of such
matters, furnishing employees to assist in the investigation, and providing
legal and business assistance with respect to such matters.
8.7 Dispute Resolution. After the Closing Date, if the applicable
------------------
parties are unable to resolve any dispute as to whether a claim is subject to
indemnification hereunder or, with respect to non-third party claims for
indemnification, the amount thereof, the exclusive method for resolving such
dispute shall be binding, non-appealable arbitration under the Commercial
Arbitration Rules, but not under the administration, of the American Arbitration
Association. The party seeking indemnification and the party from whom
indemnification is being sought may agree upon a sole arbitrator, or if a sole
arbitrator cannot be agreed upon, a panel of three arbitrators shall be named.
One arbitrator shall be selected by the party seeking indemnification and one
shall be selected by the party from whom indemnification is being sought. A
knowledgeable, disinterested and impartial arbitrator shall be selected by the
two arbitrators so appointed by such parties. If the arbitrators previously
appointed by such parties cannot agree upon the third arbitrator within 10
calendar days, then such parties may apply to any judge in any court sitting in
Colorado for appointment of the third arbitrator. The decision of the
arbitrator(s) shall be rendered within 60 days after the date of the selection
of the arbitrator(s) or within such period as such parties may otherwise agree.
The arbitral award shall be in writing
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and include an award of costs, including reasonable attorneys' fees and
disbursements. If the award does not apportion costs, (a) each such party shall
be responsible for the expenses incurred by the arbitrator appointed by such
party and the expenses, fees, and costs of the third arbitrator shall be borne
50% by each of such parties, and (b) in the event that a single arbitrator is
selected, the expenses of that arbitrator will borne 50% by each of such
parties. Any such party may apply to any court to enforce the decision of the
arbitrator(s).
ARTICLE IX.
TERMINATION
9.1 Mutual Agreement. This Agreement may be terminated at any time
----------------
prior to the Closing by the mutual written agreement of Seller and Purchasers.
9.2 Default by Seller. This Agreement may be terminated by
-----------------
Purchasers prior to the Closing at any time following the expiration of 10 days
from the date that Purchasers have given written notice to Seller that there
shall have been a misrepresentation or breach by Seller with respect to any
representation, warranty or obligation of Seller in this Agreement which would
entitle the Purchasers not to consummate the transactions contemplated by this
Agreement, and such misrepresentation or breach cannot be cured by August 27,
1999 (the "Drop Dead Date").
--------------
9.3 Default by Purchasers. This Agreement may be terminated by
---------------------
Seller prior to the Closing at any time following the expiration of 10 days from
the date that Seller has given written notice to Purchasers that there shall
have been a misrepresentation or breach by Purchasers with respect to any
representation, warranty or obligation of Purchasers in this Agreement which
would entitle Seller not to consummate the transactions contemplated by this
Agreement, and such misrepresentation or breach cannot be cured by the Drop Dead
Date.
9.4 Failure to Close. This Agreement may be terminated by Purchasers
----------------
or Seller if the Closing shall not have been consummated by the Drop Dead Date;
provided, however, that neither Seller nor Purchasers may terminate this
Agreement pursuant to this Section 9.4 if the Closing shall not have been
consummated within such time period by reason of the failure of such party or
any of its Affiliates to perform in all material respects any of its or their
respective covenants or agreements contained in this Agreement.
9.5 Superior Offer.
--------------
(a) This Agreement may be terminated by Seller prior to the Closing
in order to accept an offer for the Auction Businesses pursuant to Section
10.11(c); provided, however, that, Seller may not terminate this Agreement
pursuant to this Section 9.5(a) unless Seller shall have complied in all
material respects with the procedures set forth in Section 10.11.
(b) If this Agreement is terminated by Seller pursuant to Section
9.5(a) and provided that the total consideration to be paid by the Other Bidder
for the Auction Businesses
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exceeds $410,000,000, Seller shall promptly pay to Purchasers an amount equal to
the sum of (i) 1% of the equity portion of the Highest Competing Offer plus (ii)
2% of the excess, if any, of (x) the equity portion of the purchase price to be
paid by the Other Bidder over (y) the equity portion of the Highest Competing
Offer; provided that any discount or premium applied by the AEG Board of
Directors to the nominal value of the Other Bidder's offer pursuant to Section
10.11(c) shall be disregarded in determining whether the total consideration to
be paid by the Other Bidder exceeds $410,000,000. For example and for the
avoidance of doubt, the total consideration to be paid by Purchasers pursuant to
this Agreement is $400,000,000, equal to $260,000,000 in equity plus
$140,000,000 assumption of debt. As a further example, if the total
consideration pursuant to the Highest Competing Offer is $440,000,000 and the
Purchasers did not participate in the second round auction contemplated by
Section 10.11 (c), Purchasers would receive 1% of the equity portion of the
Highest Competing Offer ($300,000,000) (i.e., a payment to Purchasers of
$3,000,000); if instead, the total consideration pursuant to the Highest
Competing Offer is $420,000,000 and the total consideration pursuant to the
Other Bidder's final offer in the second round auction is $440,000,000,
Purchasers would receive 1% of the equity portion of the Highest Competing Offer
($280,000,000) plus 2% of $20,000,000 (i.e., a payment to Purchasers of
$3,200,000).
9.6 Effect of Termination. In the event of termination of this
---------------------
Agreement pursuant to this Article IX, this Agreement forthwith shall become
void and of no further force or effect, and no party hereto shall have any
liability or obligation hereunder, except that any such termination shall not
affect (i) the provisions of Sections 10.7 (Publicity) and 10.8 (Costs and
Expenses), and the Confidentiality Agreement dated August 12, 1998, between AEG
and Xxxxxxx and Xxxxx Xxxxxx, all of which shall survive any such termination,
(ii) the rights and remedies available to a party as a result of any willful
breach of any provisions of this Agreement, (iii) Seller's obligation to make
the payment, if any, to Purchasers contemplated by Section 9.5(b) (iv)
Purchasers' obligation, if any, to reimburse Seller pursuant to Section 10.12,
and (v) the obligations of Seller and Purchasers to pay Transfer Taxes, if any,
pursuant to Section 10.5(c).
ARTICLE X.
OTHER AGREEMENTS
10.1 Further Assurances. Subject to the terms and conditions of this
------------------
Agreement, Seller and Purchasers will use all reasonable efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary or desirable under Applicable Law to consummate the transactions
contemplated by this Agreement. Seller, Purchasers and LDA agree, subject to
the satisfaction of the conditions contained in this Agreement, to execute and
deliver such other documents, certificates, agreements and other writings and to
take such other actions as may be reasonably necessary or desirable in order to
consummate or implement expeditiously the transactions contemplated by this
Agreement.
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10.2 Certain Filings. The parties hereto shall cooperate with one
---------------
another in determining whether any action by or in respect of, or filing with,
any Governmental Authority is required or reasonably appropriate, or any action,
consent, approval or waiver from any party to any Sports Entities Contract,
Arena Contract or other Contract binding upon any Purchased Entity is required
or reasonably appropriate, in connection with the consummation of the
transactions contemplated by this Agreement. Subject to the terms and
conditions of this Agreement, in taking such actions or making any such filings,
the parties hereto shall furnish information required in connection therewith
and seek timely to obtain any such actions, consents, approvals or waivers.
Without limiting the foregoing, the parties hereto shall each promptly complete
and file all reports and forms, and respond to all requests or further requests
for additional information, as may be required or authorized under the HSR Act.
10.3 Administration of Accounts. All payments and reimbursements made
--------------------------
by any third party to Seller in the name of or to any of the Purchased Entities,
the Pepsi Center, the Arena Land, the Development Property, the Nuggets or the
Avalanche after the Closing Date shall be held by Seller in trust for the
benefit of New Sports or New Arena, as the case may be, and, immediately upon
receipt by Seller of any such payment or reimbursement, Seller shall pay, or
cause to be paid, over to New Sports or New Arena, as the case may be, the
amount of such payment or reimbursement without right of set off.
10.4 Guarantee of Performance. The obligations of the Purchasers to
------------------------
acquire the Equity Interests and of New Arena to acquire the LDA Ascent Arena
Company Membership Interest will be personally guaranteed by Xxxxxxx and Xxxxx
Xxxxxx.
10.5 Taxes.
-----
(a) Pre-Closing Matters.
-------------------
(i) Seller shall cause any tax-sharing agreements, tax
indemnity agreements, tax allocation agreements, or similar agreements with
respect to a Purchased Entity or a Corporate Entity, and any power of attorney
with respect to Tax matters of a Purchased Entity or a Corporate Entity, to be
terminated on or prior to the Closing Date so that from and after the Closing
Date the Purchased Entities and Corporate Entities shall not be bound thereby
nor have any liability thereunder.
(ii) No material new elections with respect to Taxes nor any
material changes in current elections with respect to Taxes affecting any
Purchased Entity or a Corporate Entity shall be made after the date of this
Agreement without the prior written consent of Purchaser.
(iii) Prior to Closing, Seller shall provide Purchasers with a
clearance certificate or similar document that may be required by any state
taxing authority in order to relieve Purchasers of any obligation to withhold
any portion of the purchase price with respect to any of the Purchased Entities
or Corporate Entities.
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(iv) Seller shall deliver to Purchasers at Closing a
"Certificate of Nonforeign Status" under Section 1445 of the Code in a form
reasonably satisfactory to Purchasers.
(v) Each Partnership Entity has or will have an election under
Section 754 of the Code in effect for the tax year that includes the Closing
Date. The tax matters partner for each Partnership Entity shall resign effective
on or before the Closing Date.
(vi) Seller shall cooperate with Purchasers with respect to
structure matters relating to Tax efficiencies prior to Closing.
(vii) Prior to the Closing, Seller shall pay all Non-Income
Taxes of each Purchased Entity and Corporate Entity no later than five business
days after such Non-Income Taxes are due.
(viii) Seller agrees that the amount of Non-Income Taxes of the
Purchased Entities and Corporate Entities allocable to any Pre-Closing Period
(determined in the same manner as the determination of Income Taxes allocable to
a Pre-Closing Period under Section 10.5(b)(i)) that are unpaid as of Closing
shall not exceed $650,000.
(b) Allocation of Taxes for Pre-Closing and Post-Closing Periods.
------------------------------------------------------------
(i) Seller shall pay all Income Taxes of each Purchased Entity
and Corporate Entity allocable to any Pre-Closing Period whether such Income
Taxes are due before or after Closing and all Income Taxes specifically
attributable to a Corporate Entity ceasing to be a member of Seller's
consolidated group (which shall include, without limitation, any income from an
intercompany transaction described in Treasury Regulation (S) 1.1502-13 or with
respect to any excess loss account described in Treasury Regulation (S) 1.1502-
19 or pursuant to any comparable provisions of state, local or foreign tax law).
Subject to the provisions below, the Income Taxes allocable to a Pre-Closing
Period shall be determined on the accrual accounting method and on the basis of
a closing of the books of each Purchased Entity and Corporate Entity as of the
end of the Closing Date. Income Taxes allocable to a Pre-Closing Period shall
include all Income Taxes with respect to income, gain or loss from the sale of
the interests in the Partnership Entities and the sale of the interests in the
Development Land and the Arena Land by the Corporate Entities pursuant to this
Agreement and any Income Taxes related to the mergers of Ascent Sports and
Ascent Development Corp. as described in Section 11.13. The Income Taxes
attributable to a Purchased Entity's or Corporate Entity's direct and indirect
interest in any Tax Partnerships shall be determined by a closing of the books
of each Tax Partnership as of the end of the Closing Date, and all Income Taxes
attributable to the operations and activities of a Tax Partnership through the
end of the Closing Date using the accrual accounting method shall be considered
Income Taxes of the Purchased Entity or Corporate Entity allocable to a Pre-
Closing Period.
(ii) For federal income tax purposes, Seller shall include all
income of each Corporate Entity for all Pre-Closing Periods beginning on or
after July 1, 1997 in the consolidated federal income tax returns of Seller's
consolidated group and shall pay any Taxes
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attributable to such income. Any position on such returns that relates to a
Corporate Entity shall comply with the Return Preparation Standard. Purchasers
shall prepare and deliver to Seller within 45 days after Closing books and
working papers (prepared on a GAAP basis) that demonstrate the operations,
activities and income of each Purchased Entity and Corporate Entity for the
period ending on the Closing Date. Seller shall prepare and deliver to
Purchasers within 30 days after the receipt of the books and working papers
described in the preceding sentence, a statement prepared on a tax basis
reflecting the operations, activities and income of each Purchased Entity and
Corporate Entity for the period ending on the Closing Date.
(c) Transfer Taxes. Purchasers shall pay 100% of any sales, use,
--------------
transfer, stamp, documentary or other similar Taxes and any recording and filing
fees (collectively "Transfer Taxes"), with respect to the transactions hereunder
--------------
(including the steps taken by Seller pursuant to Section 11.13) , except that
Seller shall pay any Transfer Taxes that are solely and directly attributable to
the transfer from AEG to HC of a portion of the AEG Nuggets LP Partnership
Interest and the AEG Avalance Membership Interest, and Purchasers shall prepare
all Returns with respect to such Transfer Taxes , except that Seller shall
prepare all Returns with respect to the Transfer Taxes for which Seller is
responsible under this Section 10.5(c), and the Party required to file such
Returns shall timely file such Returns.
(d) Indemnification.
---------------
(i) Seller shall indemnify, and hold harmless the Purchasers,
each Purchased Entity and their Affiliates from and against (without
duplication) any Loss incurred by Purchasers, any Purchased Entity, or any
Affiliates:
(A) With respect to any Income Taxes of a Purchased Entity
or Corporate Entity attributable to a Pre-Closing Period taking into account the
provisions of Section 10.5(b)(i) but excluding any Income Taxes described in
Section 10.5(d)(ii)(B) or (d)(ii)(C);
(B) With respect to any Income Taxes specifically
attributable to a Corporate Entity leaving Seller's consolidated group (which
shall include without limitation any deferred intercompany gain under Treasury
Regulation (S) 1.1502-13 and income with respect to an excess loss account under
Treasury Regulation (S) 1.1502-19, or pursuant to any comparable provision of
state, local or foreign tax law) ;
(C) With respect to any liability of a Purchased Entity or
Corporate Entity for any Pre-Closing Period for the Taxes of any other person
(other than another Purchased Entity or Corporate Entity ) as a transferee, a
successor, by contract, pursuant to Treasury Regulation (S) 1.1502-6, or
otherwise;
(D) With respect to any Transfer Taxes that are the
obligation of Seller under Section 10.5(c);
(E) With respect to any loss resulting from the breach of
any of the representations, warranties, covenants or agreements set forth in
Sections 5.2(e)(iii), 5.11 or
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10.5 (with such breach determined as if there were no qualifier as to
materiality with respect to any such representation or warranty that relates to
Income Taxes).
(ii) Purchasers shall indemnify and hold harmless Seller and its
respective Affiliates from and against (without duplication) any Loss incurred
by Seller or its Affiliates:
(A) With respect to any Taxes of a Purchased Entity
attributable to a Post-Closing Period;
(B) With respect to any Taxes resulting from transactions
or actions taken by a Purchased Entity that occur on the Closing Date but after
the Closing and that are not in the ordinary course of business;
(C) With respect to any Taxes resulting from an actual or
deemed election by Purchaser under Section 338 of the Code (or any similar
provisions of state law or the law of any other taxing jurisdiction) with
respect to any of the Purchased Entities in connection with any of the
transactions contemplated by this Agreement;
(D) With respect to any Transfer Taxes that are the
obligation of Purchasers under Section 10.5(c); and
(E) With respect to any loss resulting from the breach of
any of the representations, warranties, covenants or agreements set forth in
this Section 10.5.
(iii) Any indemnity payments made between the parties shall be
treated as an adjustment to the Purchase Price.
(e) Preparation of Returns.
----------------------
(i) All Returns for a Purchased Entity or Corporate Entity
(other than Mountain Mobile) with respect to any Pre-Closing Period that are to
be filed after the date of this Agreement and before the Closing Date shall be
prepared and filed by Seller and Seller shall pay all taxes due on those
Returns. Any federal consolidated income tax return and any state consolidated,
unitary or combined income tax return that includes a Corporate Entity with
respect to any Pre-Closing Period and that is to be filed after the Closing Date
shall be prepared and filed by Seller and Seller shall pay all Taxes shown as
due on those Returns. If any amount shown as due on those Returns is the
obligation of Purchasers under Section 10.5(d)(ii), Purchasers shall pay such
amount to Seller at least five business days prior to the filing of such
Returns. The Returns described above shall be prepared in accordance with the
Return Preparation Standard insofar as such Returns relate to a Purchased Entity
(other than Mountain Mobile). Seller shall provide Purchaser with a copy of each
such Return (and supporting schedules) in the form proposed to be filed by
Seller (a "Proposed Return") at least 30 days in advance of the due date for
such Return. Purchaser and its authorized representatives shall have the right
to review and comment on the Proposed Return and Seller shall make any changes
reasonably requested by Purchaser in order to caused the Proposed Return to
comply with the Return Preparation
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Standard. Neither Seller nor any affiliate shall file any amended Return or
claim for Tax refund with respect to any Purchased Entity with respect to any
Pre-Closing Period, without the consent of Purchaser, if the requested
adjustment would increase the Tax liability of Purchaser for any period unless
Seller or the affiliate, as the case may be, agrees to indemnify Purchaser for
the full cost of such increased Tax liability of Purchaser.
(ii) Except for state and federal income Tax Returns described
in paragraph (i) above, all Returns with respect to a Purchased Entity or
Corporate Entity that are to be filed after the Closing Date shall be prepared
and filed by Purchasers. With respect to any Pre-Closing Period such Returns
shall be prepared in accordance with the Return Preparation Standard. Seller
shall pay to Purchaser any amounts shown as due on those Returns that is the
obligation of Seller under Section 10.5(d)(i) and such payment by Seller shall
be made at least five business days prior to the filing of the respective
Return. Purchaser shall pay any amount shown as due on such Returns that is not
to be paid by Seller as provided above. With respect to any Return described in
this paragraph (ii) that includes a Purchased Entity or Corporate Entity for a
Pre-Closing Period: (A) Purchaser shall provide Seller with a copy of that
Return (and supporting schedules) in the form proposed to be filed by Purchaser
as least 30 days in advance of the due date of such Return; and (B) Seller and
its authorized representatives shall have the right to review and comment on
such Return prior to filing to the extent it relates to a Purchased Entity or
Corporate Entity for a Pre-Closing Period and Purchaser shall make any changes
reasonably requested by Seller in order to cause such Return to comply with the
Return Preparation Standard for any Pre-Closing Period.
(iii) Seller on the one hand, and Purchasers on the other hand,
agree to furnish or cause to be furnished to each other, upon request, as
promptly as practicable, such information and assistance (including access to
books, records and accounting work papers) relating to a Purchased Entity or
Corporate Entity as is reasonably necessary for the preparation of any Return,
claim for refund or audit, and the prosecution or defense of any claim, suit or
proceeding relating to any proposed adjustment.
(f) Notification of Proceedings. In the event that Purchasers
---------------------------
receive written notice of any Tax matter with respect to a Purchased Entity or
Corporate Entity that could affect Seller, or Seller receives written notice of
any Tax matter with respect to a Purchased Entity or Corporate Entity that could
affect Purchasers, the party receiving such written notice shall notify in
writing the potentially affected party within seven calendar days thereof. The
failure of any party to give the notice required by this Section 10.5(f) shall
not impair that party's rights under this Agreement except to the extent that
the other party demonstrates that it has been damaged thereby.
(g) Cooperation.
-----------
(i) After the Closing, Seller and Purchasers shall, each at
its own expense, cooperate with each other and with each other's agents,
including accounting firms and legal counsel, in connection with the preparation
or audit of any Return, refund claim or Tax controversy matter with respect to
any Purchased Entity or Corporate Entity or its activities.
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Such cooperation shall include making available any information, records and
documents in their possession or under their control related to any Purchased
Entity or Corporate Entity that is relevant to the preparation or audit of any
Return, refund claim or Tax controversy matter with respect to any Purchased
Entity or Corporate Entity or its activities. Any information provided or
obtained under this paragraph shall be kept confidential, except as may
otherwise be necessary in connection with the filing of a Return, refund claims,
tax audits, tax claims or tax litigation or as required by law.
(ii) Seller shall have the right to control, at its expense, any
Tax Proceeding (as defined below) to the extent such proceeding relates to any
Tax issue that could give rise to a liability of Sellers to Purchasers under
Section 10.5(d)(i) (a "Liability Issue"). Seller shall furnish to Purchasers
---------------
copies of any inquiries or requests for information from any taxing authority
concerning any Liability Issue. Purchasers shall have the right to consult with
Seller regarding any response to such requests. Seller shall provide to
Purchaser copies of all written communications and documents submitted to any
taxing authority with respect to a Liability Issue. Seller and Purchasers, as
the case may be, shall each furnish to the other, promptly after receipt, a copy
of all information document requests, notices of proposed adjustment, revenue
agent's reports or similar reports or notices of deficiency together with all
relevant documents and memos related to the foregoing documents, notices or
reports, relating to any Liability Issue.
(iii) Subject to the provisions of subparagraph (ii) above,
Purchasers shall have complete control over the handling, disposition and
settlement of any Tax controversy with respect to a Purchased Entity or
Corporate Entity, including, without limitation, any administrative, judicial or
other proceeding in connection with any Tax controversy (a "Tax Proceeding").
--------------
In the event that a Purchaser or a Purchased Entity is required to pay any Tax,
file any bond or pay any other amount in order to undertake a Tax Proceeding
with respect to any Taxes for which Seller is liable under Section 10.5(d)(i),
Seller shall advance such amounts to Purchasers or the Purchased Entity no later
than three business days before such payment is required to be made, without
interest and until a final determination with respect to such Taxes has
occurred, the amount required to be paid by the Purchasers or the Purchased
Entity. Within three business days of the receipt by Purchasers or the
Purchased Entity of a refund of any amount advanced to it by Seller (including
any related interest amount received by the Purchasers or the Purchased Entity),
Purchasers shall pay such refunded amount to Seller net of any Tax cost incurred
by the Purchased Entity as a result of such refund.
(h) Record Retention. Seller and Purchaser shall retain and provide
----------------
to each other upon reasonable request any records or other information
(including accounting work papers) that is in their possession or readily
obtainable and may be relevant to any Return, audit or examination, proceeding,
or determination that affects any amount required to be shown on any Return of a
Purchased Entity or Corporate Entity for any period. Without limiting the
generality of the foregoing, Seller and Purchaser shall retain, until the
applicable statutes of limitations (including any extensions) have expired,
copies of all Returns, supporting work papers, and other records or information
that may be relevant to such Returns of a Purchased
-75-
Entity or Corporate Entity and shall not destroy or otherwise dispose of any
such records without first providing the other party with a reasonable
opportunity to review and copy the same.
(i) Tax Adjustment for Payments. The amount of any payments required
---------------------------
to be made under this Section 10.5 shall be reduced by the amount of any tax
benefit (including by refund or by reduction of or offset against Taxes
otherwise payable) actually received by the recipient by reason of the payment
or incurrence by such recipient of the item for which the indemnity is being
sought to the extent the recipient would not have otherwise received such tax
benefit. Each party shall notify the other of such receipt of any such tax
benefits.
(j) For federal income tax purposes, Seller and Purchasers shall
treat the purchase of 100% of the membership interests in LLC-I and LLC-II as of
the purchase of the assets of LLC-I and LLC-II pursuant to Revenue Ruling 99-5.
(k) For all purposes (including tax, accounting and state corporate
law purposes) Seller and Purchasers shall treat HC (a wholly owned subsidiary of
AEG) as the only shareholder of Ascent Development Corp. and of Ascent Sports at
the time of the mergers of those two corporations as described in Section 11.13,
shall treat HC as the distributee of all liquidating distributions by the
liquidated corporations and shall treat the lidquidations as occurring prior to
the Closing.
10.6 Employee Benefit Plans.
----------------------
(a) This Section 10.6 contains the covenants and agreements of the
parties with respect to the employee benefits and employee benefit plans
provided or covering the employees of the Purchased Entities. Nothing herein
expressed or implied confers upon any such employee any rights or remedies of
any nature or kind whatsoever under or by reason of this Section 10.6.
(b) Purchasers agree to cause the Purchased Entities Employee Plans
to be maintained substantially in accordance with their current terms and
conditions, except to the extent any change may be required by Applicable Law,
through June 30, 2000, provided, however, that the health insurance arrangement
covering the employees of the Purchased Entities may be changed subsequent to
the Closing Date and prior to June 30, 2000 in a manner substantially the same
as that currently contemplated by the Purchased Entities.
(c) Purchasers agree to cause to be made available on and after the
Closing Date to employees of the Purchased Entities on the Closing Date who
participate in Seller's 401(k) Plan ("Seller's 401(k) Plan") a 401(k) plan
--------------------
sponsored by Ascent Sports (the "Ascent Sports 401(k) Plan"). The Ascent Sports
-------------------------
401(k) Plan shall, through June 30, 2000, provide benefits, and contain terms
and provisions, substantially the same as provided under the Seller's 401(k)
Plan. The Ascent Sports 401(k) Plan shall accept direct and indirect rollovers
of such Employees' account balances in the Seller's 401(k) Plan, including
direct rollovers of any outstanding employee loans under Seller's 401(k) Plan in
kind. Seller and Purchasers agree to cooperate with respect to the transfer of
employee account balances and to make any necessary filings with governmental
agencies with respect thereto.
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(d) Each welfare plan (within the meaning of Section 3(1) of ERISA)
or policy maintained or sponsored by the Purchased Entities in which any
employees of the Purchased Entities who currently participate in welfare plans
maintained by the Seller will be eligible to participate in shall (i) permit
such employees to enroll in such plans effective upon the Closing Date, subject
to satisfaction of any eligibility requirements but without regard to any
waiting periods, (ii) waive any pre-existing condition limitation or exclusion
and (iii) credit all payments made for health care expenses during the current
plan year of Seller's plans for purposes of satisfying deductible, co-insurance
and maximum out-of-pocket provisions for the balance of the current plan year of
the Purchased Entities' plans.
(e) Purchasers shall cause the Purchased Entities to continue, for
the balance of the current plan year, any Code section 125 cafeteria plans based
on the current elections of the participants who are employed by the Purchased
Entities on the Closing Date.
10.7 Publicity. The parties hereto understand and acknowledge that
---------
Seller will be obligated to disclose promptly after signing all of the material
terms and conditions of this Agreement, and shall thereafter be required to file
this Agreement with the Securities and Exchange Commission. Subject to the
foregoing, the parties agree that no press release will be made by Seller,
Purchasers or LDA or any of their respective agents concerning the transactions
contemplated under this Agreement until such release has been reviewed by and
coordinated with the other parties.
10.8 Costs and Expenses. Subject to Sections 9.5(b) and 10.12
------------------
hereof, Seller, Purchasers and LDA shall each be responsible for and bear their
own costs and expenses incurred in connection with the transactions contemplated
under this Agreement; provided, however, that Seller and Purchasers shall each
pay one-half of any HSR Act filing fees required to be paid in connection with
the transactions contemplated under this Agreement.
10.9 Conditions to Closing. Seller and Purchasers shall use all
---------------------
reasonable efforts to satisfy the applicable conditions to the Closing set forth
in Article VII. LDA shall use commercially reasonable efforts to satisfy the
applicable conditions to the Closing set forth in Section 7.1(d) (with respect
to the consummation of the purchase and sale of the LDA Ascent Arena Company
Membership Interest hereunder), and Sections 7.1(q), 7.1(r) and 7.1(s).
10.10 Termination of the Prior Agreement. AEG, New Arena and New
----------------------------------
Sports mutually consent to terminate the Prior Agreement pursuant to Section 9.1
of the Prior Agreement. Except with respect to Section 10.8 of the Prior
Agreement, which provisions shall survive the termination of the Prior
Agreement, none of AEG, New Arena or New Sports nor their respective
subsidiaries, officers, directors, employees, agents or representatives shall
have any liability or obligation under the Prior Agreement.
10.11 Auction Process.
---------------
(a) Following the execution of this Agreement, AEG shall commence
an auction process (the "Solicitation") whereby AEG shall solicit from third
------------
parties offers to purchase all of the equity interests of the businesses
contemplated to be sold pursuant to this
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Agreement (the "Auction Businesses") for cash (any such offer received by
------------------
Seller, its employees, agents or representatives, a "Competing Offer"). Each
---------------
party participating in the auction process as a bidder or a potential bidder, on
behalf of itself and its advisors and agents, must agree to be bound by the
procedures established by AEG in consultation with the Financial Advisors, and
must agree that any determination by the AEG Board of Directors in consultation
with the Financial Advisors is final and binding upon such party and that such
party shall not, in any forum, institute any proceeding or action relating to
such determination or otherwise challenge such determination.
(b) If, at the expiration of the period for submitting Competing
Offers established by the AEG Board of Directors in consultation with the
Financial Advisors pursuant to the Solicitation (which expiration shall not be
later than July 26, 0000), XXX has received a Competing Offer that AEG's Board
of Directors shall have determined, in consultation with the Financial Advisors,
is superior to AEG relative to the transactions contemplated by this Agreement
(a "Superior Offer") (it being agreed that a third party submitting a Superior
--------------
Offer must demonstrate to the satisfaction of the Board of Directors of AEG its
financial capability to consummate the transactions contemplated by such offer),
AEG shall give notice to Purchasers and the third party that has submitted the
Highest Competing Offer (the "Other Bidder"), which notice (i) shall set forth
------------
the date on which the second round auction process described in Paragraph (c) of
this Section 10.11 shall occur (which date shall be no later than July 28, 1999)
and (ii) to the extent the Board of Directors of AEG is applying a discount or
premium to the nominal value of the Highest Competing Offer relative to the
nominal value of the transactions contemplated by this Agreement, such notice
shall include a quantification of such discount or premium, to the extent
practicable, and an explanation of the factors causing the Board of Directors of
AEG to apply such discount or premium. For purposes of this Agreement, "Highest
Competing Offer" shall mean, (i) if AEG shall have received only one Superior
Offer, such Superior Offer, or (ii) if AEG shall have received more than one
Superior Offer, the Superior Offer that the Board of Directors of AEG
determines, in consultation with the Financial Advisors, is the most superior to
AEG relative to the transactions contemplated by this Agreement. AEG's
notification to Purchasers pursuant to this Section 10.11(b) shall also set
forth the material terms and conditions of the Highest Competing Offer and shall
be accompanied by (i) any written evidence provided to the Board of Directors of
AEG by the Other Bidder of the Other Bidder's financial capability to consummate
the transactions contemplated by the Highest Competing Offer or, to the extent
there are confidential terms, a redacted version of such written evidence and
(ii) a full and complete copy of the contract negotiated by AEG with the Other
Bidder (the "Other Bidder Contract") and any related schedules, exhibits or
---------------------
supplemental agreements between Seller and the Other Bidder.
(c) The "second round auction," if any, shall be a live open (i.e., no
sealed bids) auction and shall take place at the offices of AEG in Denver, at
1:00 p.m., Denver time, on the Second Business Day following the day on which
AEG shall have given the notice contemplated by Section 10.11(b). At the second
round auction, AEG shall invite Purchasers and the Other Bidder to submit offers
to purchase the Auction Businesses (alternating, with Purchasers being given the
first opportunity to bid) in increments of at least $1,000,000 or multiples
thereof, subject to Purchasers or the Other Bidder, as the case may be, having
delivered
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to AEG (x) in the case of Purchasers, an Amendment to this Agreement, duly
executed by each Purchaser, effectuating such final offer, which Amendment may
also adopt the form of the Other Bidder Contract or (y) in the case of the Other
Bidder, a purchase and sale agreement, duly executed by the Other Bidder,
effectuating such final offer. Any discount or premium applied to the nominal
value of the Highest Competing Offer relative to the transactions contemplated
by this Agreement shall also be applied by the AEG Board of Directors to any
offer submitted by the Other Bidder in the second round auction, if appropriate.
AEG shall accept the Other Bidder's final offer if AEG's Board of Directors
shall have determined, in consultation with the Financial Advisors, that such
offer is superior to AEG relative to Purchasers' final offer, if any. AEG shall
advise Purchasers and the Other Bidder of the results of the second round
auction at, or as promptly as practicable following, such time as the
participants have advised AEG that they have submitted their respective final
offers, but in no event later than three hours after the conclusion of the
second round auction.
10.12 Expense Reimbursement. Promptly following the execution
---------------------
hereof, AEG shall pay to Purchasers $5,000,000 as, inter alia, reimbursement for
Purchasers' out-of-pocket expenses and fees (including, without limitation, fees
and expenses payable to legal, accounting, financial and other advisors and
consultants of Purchasers and financing expenses) arising out of, or in
connection with, the transactions contemplated by this Agreement and the Prior
Agreement; provided, that Purchasers shall promptly repay to Seller such
$5,000,000 if (a) the total consideration paid for the Auction Businesses by
Purchasers pursuant to this Agreement (as amended, if amended in connection with
the second round auction) or (b) the total consideration to be paid for the
Auction Businesses by the Other Bidder if Seller shall have terminated this
Agreement pursuant to Section 9.5(a), in either case, is $410,000,000 or less;
provided that in the case of clause (b) above, any discount or premium applied
by the AEG Board of Directors to the nominal value of the Other Bidder's offer
pursuant to Section 10.11(b) shall be disregarded in determining whether the
total consideration to be paid by the Other Bidder is $410,000,000 or less.
ARTICLE XI.
MISCELLANEOUS
11.1 Notices. All notices, requests, demands, claims and other
-------
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (a) if
personally delivered, when so delivered, (b) if mailed, two Business Days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid and addressed to the intended recipient as set forth below, (c)
if given by telex or telecopier, once such notice or other communication is
transmitted to the telex or telecopier number specified below and the
appropriate answer back or telephonic confirmation is received, provided that
such notice or other communication is promptly thereafter mailed in accordance
with the provisions of clause (b) above, or (d) if sent through an overnight
delivery service in circumstances to which such service guarantees next day
delivery, the day following being so sent:
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If to Seller:
Ascent Entertainment Group, Inc.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to LDA:
Liberty Denver Arena LLC
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X.X. Xxxxxxx
Telecopy: (000) 000-0000
With a copy similarly addressed to:
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to Purchasers:
0000 Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx and Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
with copies to:
Xxxxxxx X. Xxxxxx, Esq.
000 Xxxx Xxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
and
-00-
Xxxxx Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: G. Xxxxx Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
Holme Xxxxxxx & Xxxx LLP
00 X. Xxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
and
Akin, Gump, Strauss,
Xxxxx & Field LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
If to Designated Representative:
Xxxxxxx X. Xxxxxx, Esq.
000 Xxxx Xxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Any party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
11.2 Amendments; No Waivers.
----------------------
(a) Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and signed, in the case of an
amendment, by all parties hereto, or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) No waiver by a party of any default, misrepresentation or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent occurrence. No failure or delay by a party in
exercising any right, power or privilege hereunder shall operate as a waiver
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thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
11.3 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. No party hereto may assign either this Agreement or any of
its rights, interests or obligations hereunder without the prior written
approval of each other party, which approval shall not be unreasonably withheld.
11.4 Governing Law. This Agreement shall be construed in accordance
-------------
with and governed by the internal laws (without reference to choice or conflict
of laws) of the State of Colorado.
11.5 Counterparts; Effectiveness. This Agreement may be signed in any
---------------------------
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by the other parties hereto.
11.6 Entire Agreement. Except as otherwise provided herein, this
----------------
Agreement (including the Schedules and Exhibits referred to herein which are
hereby incorporated by reference) constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements, understandings and negotiations, both written and oral, between the
parties with respect to the subject matter of this Agreement. Neither this
Agreement nor any provision hereof is intended to confer upon any Person other
than the parties hereto any rights or remedies hereunder.
11.7 Captions. The captions herein are included for convenience of
--------
reference only and shall be ignored in the construction or interpretation
hereof. All references to an Article or Section include all subparts thereof.
11.8 Severability. If any provision of this Agreement, or the
------------
application thereof to any Person, place or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other Persons,
places and circumstances shall remain in full force and effect only if, after
excluding the portion deemed to be unenforceable, the remaining terms shall
provide for the consummation of the transactions contemplated hereby in
substantially the same manner as originally set forth at the later of the date
this Agreement was executed or last amended.
11.9 Construction.
------------
(a) The language used in this Agreement will be deemed to be the
language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against either party. Any
reference to any Applicable Law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise.
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Whenever required by the context, any gender shall include any other gender, the
singular shall include the plural and the plural shall include the singular.
The words "herein," "hereof," "hereunder," and words of similar import refer to
the Agreement as a whole and not to a particular section.
(b) In the event of a conflict or inconsistency between any
provision contained in this Agreement and any provision contained in any of the
Schedules or Exhibits to this Agreement, the provision in the Agreement shall be
controlling.
11.10 Cumulative Remedies. Except as provided in Sections 8.1 and
-------------------
9.6, the rights, remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by
law.
11.11 Survival of Representations, Etc. Except for representations
---------------------------------
and warranties relating to the Equity Interests and the LDA Ascent Arena Company
Membership Interest as set forth in Sections 5.2 and 5A.2 and tax matters, which
shall survive for the applicable statute of limitations period, the
representations, warranties, covenants and agreements of Seller, Purchasers, New
Arena and LDA contained herein or in any other document delivered pursuant to
this Agreement shall survive for a period of 18 months after the Closing,
without regard to any investigation made by any of the parties hereto (and
except as otherwise provided in Section 8.1(a)(i), 8.1(a)(ii) or 8.3(a)).
11.12 No Third Party Beneficiaries. Except as expressly provided in
----------------------------
this Agreement, including the Guarantee contemplated by Section 10.4 hereof, no
person other than Purchasers and Seller shall have any right, benefit or
obligation under this Agreement as a third party beneficiary or otherwise.
11.13 Revised Deal Structure.
----------------------
(a) On the day before the Closing, AEG will transfer ownership of
all of the stock of Ascent Development Corp. to HC and will cause Ascent
Development Corp. to be merged with and into LLC-II, with LLC-II as the
surviving entity. As the surviving entity, LLC-II will have all the rights,
privileges and powers, as well as all right, title and interest in all of the
property, real, personal and mixed, and other assets of Ascent Development
Corp., and will assume all of the debts, liabilities and duties of Ascent
Development Corp.
(b) On the day before the Closing, AEG will transfer ownership of
all of the stock of Ascent Sports to HC and will cause Ascent Sports to be
merged with and into LLC-I, with LLC-I as the surviving entity. As the surviving
entity, LLC-I will have all the rights, privileges and powers, as well as all
right, title and interest in all of the property, real, personal and mixed, and
other assets of Ascent Sports and will assume all of the debts, liabilities and
duties of Ascent Sports.
(c) Because of the actions to be taken pursuant to this Section
11.13, Purchasers agree and acknowledge that representations and warranties
relating to the corporate status and existence of Ascent Sports and Ascent
Development Corp. will be true on the date of
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signing of this Agreement, on the Prior Agreement Effective Date or on the date
the transactions contemplated by this Section 11.13 are completed, as
applicable, but will not be true as of the Closing Date.
(d) Prior to the mergers described in subsections (a) and (b) of
this Section 11.13, neither LLC-I nor LLC-II shall hold any assets or engage in
any business or investment activities of any kind.
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COUNTERPART SIGNATURE PAGE TO
PURCHASE AND SALE AGREEMENT AMONG ASCENT
ENTERTAINMENT GROUP, INC., LIBERTY DENVER
ARENA, LLC AND EPL, LLC AND EPL II, LLC
DATED AS OF JUNE 22, 1999
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers or managers as of the
day and year first above written.
AEG:
---
ASCENT ENTERTAINMENT GROUP, INC., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Acting Chairman and CEO
HC:
--
ASCENT SPORTS HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Acting Chairman and CEO
COUNTERPART SIGNATURE PAGE TO
PURCHASE AND SALE AGREEMENT AMONG ASCENT
ENTERTAINMENT GROUP, INC., LIBERTY DENVER
ARENA, LLC AND EPL, LLC AND EPL II, LLC
DATED AS OF JUNE 22, 1999
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers or managers as of the
day and year first above written.
NEW ARENA:
---------
EPL, LLC, a Missouri limited liability company
By: /s/ Xxxxx Xxxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx Xxxxxx, Manager
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx, Manager
NEW SPORTS:
-----------
EPL II, LLC, a Missouri limited liability company
By: /s/ Xxxxx Xxxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx Xxxxxx, Manager
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxx, Manager
COUNTERPART SIGNATURE PAGE TO
PURCHASE AND SALE AGREEMENT AMONG ASCENT
ENTERTAINMENT GROUP, INC., LIBERTY DENVER
ARENA, LLC AND EPL, LLC AND EPL II, LLC
DATED AS OF JUNE 22, 1999
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers or managers as of the
day and year first above written.
LDA:
---
LIBERTY DENVER ARENA LLC, a Delaware
limited liability company
By: LMC Newco US, Inc., a Delaware corporation,
its sole member
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
SCHEDULE 3.6
Post Closing Funds
------------------
The following payments, whether received before or after the Closing, are for
the benefit of and payable to Seller:
Any and all payments under the Ascent Entertainment Assignment
$6 million payable by Coors under the Coors Agreement
$2 million payable by Coors under the Agreement for Sponsorship and Promotion
between Coors and the Avalanche dated June 1, 1998
$2 million payable by Coors under the Agreement for Sponsorship and Promotion
between Coors and the Nuggets dated June 1, 1998
$2.25 million payable by Pepsi under the Pepsi Agreement
Security deposits for all suite license agreements, which were invested in the
construction and development of the Pepsi Center in connection with the closing
of the Indenture, less an amount equal to $575,000, which shall be maintained by
the Purchased Entities
SCHEDULE 5.12(f)(ii)
Sports Entities' Required Governmental/Contractual Approvals/Consents
---------------------------------------------------------------------
City Consent under the Arena Agreement
NHL Consent
NBA Consent
