PURCHASE AND SALE AGREEMENT
AMONG
ASCENT ENTERTAINMENT GROUP, INC.
AND
EPL, LLC AND
EPL II, LLC
Dated as of April 25, 1999
Table of Contents
ARTICLE I. DEFINITIONS......................................................2
1.1 Definitions......................................................2
ARTICLE II. PURCHASE AND SALE...............................................16
2.1 Ascent Sports Shares and Related Ownership Interests............16
2.2 ADC Shares......................................................16
2.3 Ascent Arena Company Membership Interests.......................16
2.4 Purchase Price..................................................16
ARTICLE III. COVENANTS OF SELLER.............................................17
3.1 Compliance with Contracts and Applicable Law....................17
3.2 Conduct of Business in the Ordinary Course......................17
3.3 Preservation of Business........................................20
3.4 Maintenance of Insurance Coverage and Certain Policies..........20
3.5 Current Information.............................................20
3.6 Post-Closing Funds..............................................20
ARTICLE IV. CLOSING.........................................................21
4.1 Closing.........................................................21
4.2 Closing Deliveries by AEG.......................................21
4.3 Closing Deliveries by Purchasers................................22
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF AEG...........................22
5.1 General Corporate and Partnership Matters.......................22
5.2 Authorized Capital; Title to Shares and Membership Interests....24
5.3 Financial Statements and Undisclosed Liabilities................28
5.4 Litigation......................................................29
5.5 Employees.......................................................29
5.6 Employee Benefits...............................................30
5.7 Labor and Employment Matters....................................31
5.8 Intellectual Property...........................................32
5.9 Environmental Compliance........................................33
5.10 Insurance.......................................................33
5.11 Tax Matters.....................................................34
5.12 Sports Entities.................................................40
5.13 Ascent Arena Entities...........................................43
5.14 Pepsi Center....................................................43
5.15 Mountain Mobile.................................................46
5.16 Development Property............................................46
5.17 Advisory Fees...................................................47
5.18 No Other Representations or Warranties..........................47
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF PURCHASERS....................47
6.1 Existence and Power.............................................47
6.2 Governmental Authorization......................................47
6.3 Non-Contravention...............................................48
6.4 Securities Matters..............................................48
6.5 Advisory Fees...................................................49
6.6 Litigation......................................................49
6.7 Beneficial Ownership............................................49
6.8 No Other Representations or Warranties..........................50
ARTICLE VII. CONDITIONS TO CLOSING...........................................50
7.1 Conditions to Obligations of Purchasers.........................50
7.2 Conditions to Obligations of Seller.............................52
ARTICLE VIII. INDEMNIFICATION AND DISPUTE RESOLUTION..........................53
8.1 Indemnification of Purchasers...................................53
8.2 Indemnification of Seller.......................................54
8.3 Procedures for Third-Party Claims...............................54
8.4 Procedures for Non-Third Party Claims...........................55
8.5 Dispute Resolution..............................................55
ARTICLE IX. TERMINATION.....................................................56
9.1 Mutual Agreement................................................56
9.2 Default by Seller...............................................56
9.3 Default by Purchasers...........................................56
9.4 Failure to Close................................................56
9.5 Effect of Termination...........................................57
ARTICLE X. OTHER AGREEMENTS................................................57
10.1 Further Assurances..............................................57
10.2 Certain Filings.................................................57
10.3 Administration of Accounts......................................57
10.4 Guarantee of Performance........................................57
10.5 Taxes...........................................................57
10.6 Employee Benefit Plans..........................................63
10.7 Publicity.......................................................64
10.8 Costs and Expenses..............................................64
10.9 Conditions to Closing...........................................64
ARTICLE XI. MISCELLANEOUS...................................................64
11.1 Notices.........................................................64
11.2 Amendments; No Waivers..........................................66
11.3 Successors and Assigns..........................................67
11.4 Governing Law...................................................67
11.5 Counterparts; Effectiveness.....................................67
11.6 Entire Agreement................................................67
11.7 Captions........................................................67
11.8 Severability....................................................67
11.9 Construction....................................................68
11.10 Cumulative Remedies.............................................68
11.11 Survival of Representations, Etc................................68
11.12 No Third Party Beneficiaries....................................68
EXHIBIT "A-1" Arena Land Legal Description............................A1-1
EXHIBIT "A-2" Development Property Legal Description...............A2-1
EXHIBIT "B" Permitted Liens.......................................B-1
EXHIBIT "C" Construction Budget...................................C-1
EXHIBIT "D" Construction Contractor Critical Path Report..........D-1
SCHEDULE 1.1 Pepsi Center Plans and Specifications...............1.1-1
SCHEDULE 3.2(a)(vii) Payable Indebtedness........................3.2(a)(vii)-1
SCHEDULE 3.2(b)(viii) Prepayable Arena Entities' and Development Property
Indebtedness.............................3.2(b)(viii)-1
SCHEDULE 3.4 Maintenance of Insurance Coverage and Certain
Policies..........................................3.4-1
SCHEDULE 3.6 Post-Closing Funds..................................3.6-1
SCHEDULE 5.1(f) Subsidiaries/Advances/Investments................5.1(f)-1
SCHEDULE 5.2(c)(iii) Mountain Mobile Membership Interest.........5.2(c)(iii)-1
SCHEDULE 5.2(h) Restrictions.....................................5.2(h)-1
SCHEDULE 5.3(a) Financial Statements.............................5.3(a)-1
SCHEDULE 5.3(b) Undisclosed Liabilities..........................5.3(b)-1
SCHEDULE 5.4 Litigation..........................................5.4-1
SCHEDULE 5.5(a) Sports Entities' Employees.......................5.5(a)-1
SCHEDULE 5.5(b) Arena Entities' Employees........................5.5(b)-1
SCHEDULE 5.6(a)(i) Employee Plans................................5.6(a)(i)-1
SCHEDULE 5.6(a)(iv) Employee Plan Accelerated Vesting............5.6(a)(iv)-1
SCHEDULE 5.6(d) Multi-employer Plan Contingent Liability.........5.6(d)-1
SCHEDULE 5.7(a) Labor and Employment Matters.....................5.7(a)-1
SCHEDULE 5.8(a) Intellectual Property............................5.8(a)-1
SCHEDULE 5.10(a) Insurance Policies..............................5.10(a)-1
SCHEDULE 5.10(b) Ascent Arena Entities Insurance Policies........5.10(b)-1
SCHEDULE 5.11(a)(iv) Tax Matters - Affiliated Groups............5.11(a)(iv)-1
SCHEDULE 5.11(a)(v) Tax Matters - List of Consolidated, Combined or
Unitary State Income Tax Filings...........5.11(a)(v)-1
SCHEDULE 5.11(a)(vi) Tax Matters - Copies of Returns/Audits.....5.11(a)(vi)-1
SCHEDULE 5.11(a)(viii) Tax Matters - General Disclosures......5.11(a)(viii)(E)-1
SCHEDULE 5.11(a)(ix) Tax Matters - Corporate Disclosures.........5.11(a)(ix)-1
SCHEDULE 5.11(a)(x) Tax Matters - Additional Information.........5.11(a)(x)-1
SCHEDULE 5.11(b)(iv) Tax Matters - Partnership Returns/Audits....5.11(b)(iv)-1
SCHEDULE 5.11(b)(vii) Tax Matters - General Disclosures..........5.11(b)(vii)-1
SCHEDULE 5.11(b)(viii) Tax Matters - Partnership Entities.......5.11(b)(viii)-1
SCHEDULE 5.11(b)(ix) Tax Matters - Partnership Elections/Asset
Basis.....................................5.11(b)(ix)-1
SCHEDULE 5.12(a) Sports Entities - Absence of Certain Changes....5.12(a)-1
SCHEDULE 5.12(b)(i) Sports Entities' Contracts...................5.12(b)(i)-1
SCHEDULE 5.12(e) Affiliate Contracts.............................5.12(e)-1
SCHEDULE 5.12(f)(i) Sports Entities' Permits.....................5.12(f)(i)-1
SCHEDULE 5.12(f)(ii) Sports Entities' Required Governmental/Contractual
Approvals/Consents........................5.12(f)(ii)-1
SCHEDULE 5.12(g) Compliance with Laws............................5.12(g)-1
SCHEDULE 5.13(d) Advance Booking Contracts.......................5.13(d)-1
SCHEDULE 5.13(e) Ascent Arena Entity Contracts...................5.13(e)-1
SCHEDULE 5.14(a)(ii) Pepsi Center and Development Property
Budget....................................5.14(a)(ii)-1
SCHEDULE 5.14(b)(iii) Arena Contracts............................5.14(b)(iii)-1
SCHEDULE 5.14(b)(v) Sale and Servicing Delegation of Duties.....5.14(b)(v)-1
SCHEDULE 5.14(c) Arena Accounts..................................5.14(c)-1
SCHEDULE 5.15(c) Mountain Mobile Compliance with Laws.................5.15(c)-1
SCHEDULE 6.7(a) Beneficial Ownership..................................6.7(a)-1
EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") is made as of
April 25, 1999 (the "EFFECTIVE DATE"), among ASCENT ENTERTAINMENT GROUP, INC., a
Delaware corporation ("AEG" or "SELLER") and EPL, LLC, a Missouri limited
liability company ("NEW ARENA") and EPL II, LLC, a Missouri limited liability
company ("NEW SPORTS") (collectively, "PURCHASERS" and each individually, a
"PURCHASER").
RECITALS
A. AEG owns 1,000 shares of the capital stock of Ascent Arena and
Development Corporation, a Delaware corporation ("ASCENT DEVELOPMENT CORP."),
which capital stock constitutes 100% of Ascent Development Corp.'s issued and
outstanding capital stock (the "ADC SHARES).
B. AEG desires to sell to New Arena, and New Arena desires to
purchase from AEG, all of the ADC Shares, all on the terms and conditions set
forth in this Agreement.
C. AEG, Liberty Denver Arena LLC ("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 MEMBERSHIP INTERESTS," and each
individually an "ASCENT ARENA COMPANY MEMBERSHIP INTEREST"). Ascent Arena
Company in turn owns the partially constructed new 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").
D. Immediately prior to the Closing, AEG will purchase from LDA its
Ascent Arena Company Membership Interest. AEG desires to sell to New Arena, and
New Arena desires to purchase from AEG, its Ascent Arena Company Membership
Interest, all on the terms and conditions set forth in this Agreement.
E. AEG owns, in the aggregate: (i) 1,000 shares of the capital stock
of Ascent Sports, Inc., a Delaware corporation ("ASCENT SPORTS"), which capital
stock constitutes 100% of Ascent Sport's issued and outstanding capital stock
(the "ASCENT SPORTS SHARES"), (ii) a 98.2% limited partnership interest (the
"AEG NUGGETS LP PARTNERSHIP INTEREST") in The Denver Nuggets Limited
Partnership, a Delaware limited partnership ("NUGGETS LP"), and (iii) a 50%
membership interest (the "AEG AVALANCHE MEMBERSHIP INTEREST") in Colorado
Avalanche, LLC, a Colorado limited liability company ("AVALANCHE LLC").
F. Ascent Sports owns, in the aggregate, (i) a 1.8% general
partnership interest in Nuggets LP, and (ii) a 50% membership interest in
Avalanche LLC (the "ASCENT SPORTS AVALANCHE MEMBERSHIP INTEREST").
G. Nuggets LP owns and operates the professional basketball team
known as the "Denver Nuggets" (the "NUGGETS") and holds a franchise and
membership in the National Basketball Association (the "NBA"). Nuggets LP also
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
(ii) a 1/3 membership interest (the "MOUNTAIN MOBILE MEMBERSHIP INTEREST") in
Mountain Mobile TV Limited Liability Company, a Nevada limited liability company
("MOUNTAIN MOBILE").
H. Avalanche LLC owns and operates the professional hockey team known
as the "Colorado Avalanche" (the "AVALANCHE") and holds a franchise and
membership in the National Hockey League (the "NHL").
I. AEG desires to sell, on the terms and conditions set forth in this
Agreement, to New Sports, and New Sports desires to purchase from AEG, all of
the Ascent Sports Shares, the AEG Nuggets LP Partnership Interest and the AEG
Avalanche Membership Interest.
J. Immediately prior to the Closing, New Sports may assign all of its
rights hereunder with respect to the acquisition of the Avalanche, the
membership interests of Avalanche LLC and a 1/6 membership interest in Mountain
Mobile to a third-party purchaser (the "AVALANCHE ASSIGNEE"), provided, among
other things, that such Avalanche Assignee is ready, willing and able to close
simultaneously with the Closing.
NOW, THEREFORE, in consideration of the foregoing recitals, and the
representations, warranties, covenants and agreements hereinafter set forth, the
parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS. The following terms, as used herein, have the
following meanings:
"ACCOUNTS" means, collectively, (a) the following accounts established
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 Recital A.
"ADVANCE BOOKING CONTRACTS" has the meaning set forth in Section
5.13(d).
"AEG" has the meaning set forth in the introductory paragraph of this
Agreement.
"AEG AVALANCHE MEMBERSHIP INTEREST" has the meaning set forth in
Recital E.
"AEG NUGGETS LP PARTNERSHIP INTEREST" has the meaning set forth in
Recital E.
"AFFILIATE" means, with respect to any Person, any Person directly or
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
this Agreement.
"APPLICABLE LAW" means, with respect to any Person, any current
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 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).
"ARCHITECT" means Xxxxxxx, Obata & Kassabaum, P.C., a Colorado
professional corporation.
"ARCHITECT AGREEMENT" means the Agreement for Architectural Services,
dated November 20, 1997, between Architect and Ascent Arena Company with respect
to the Pepsi Center.
"ARENA AGREEMENT" means the 0000 Xxxxxx Xxxxx Agreement, dated as of
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)
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.
"ARENA OPERATING COMPANY" means Ascent Arena Operating Company, LLC, a
Colorado limited liability company.
"ASCENT ARENA COMPANY" has the meaning set forth in Recital C.
"ASCENT ARENA COMPANY MEMBERSHIP INTERESTS" has the meaning set forth
in Recital C.
"ASCENT ARENA ENTITIES" means the following entities, collectively,
Ascent Arena Company, Ascent Development Corp., Arena Operating Company, and
Denver Arena Trust.
"ASCENT DEVELOPMENT CORP." has the meaning set forth in Recital A.
"ASCENT ENTERTAINMENT ASSIGNMENT" means the Ascent Entertainment
Assignment of Certain Payments, dated as of July 29, 1998, among AEG, Denver
Arena Trust, Ascent Arena Company and the Indenture Trustee.
"ASCENT SPORTS" has the meaning set forth in Recital E.
"ASCENT SPORTS AVALANCHE MEMBERSHIP INTEREST" has the meaning set
forth in Recital F.
"ASCENT SPORTS SHARES" has the meaning set forth in Recital E.
"ASSETS" means, with respect to any Person, all of such Person's
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.
"AUTHORIZATIONS" has the meaning set forth in Section 5.9(a).
"AVALANCHE" has the meaning set forth in Recital H.
"AVALANCHE ASSIGNEE" has the meaning set forth in Recital J.
"AVALANCHE BALANCE SHEET" means the unaudited balance sheet of
Avalanche LLC as of March 31, 1999.
"AVALANCHE LLC" has the meaning set forth in Recital E.
"AVALANCHE CONTRACTS" means all Contracts listed on Schedule 5.5(a)
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.
"BASKET" shall have the meaning set forth in Section 8.1(b).
"BUSINESS" means the business of owning, managing and operating (a)
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 Ascent
Sports.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day
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.
"CITY CONSENT" means the consent of the City to all transactions
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.
"CITY LIEN" means the subordinate Lien granted by Ascent Arena Company
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.
"CLOSING DATE" has the meaning set forth in Section 4.1.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONOCO AGREEMENT" means the Agreement for Founding Partner,
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,
Inc. and Ascent Development Corp.
"CONSTRUCTION ACCOUNT BALANCE" has the meaning set forth in Section
5.14(a)(ii).
"CONSTRUCTION BUDGET" has the meaning given to that term in Section
5.14(a)(ii).
"CONSTRUCTION CONTRACT" means the Guaranteed Maximum Price Agreement,
dated as of November 20, 1997, between Ascent Arena Company and the
Construction Contractor.
"CONSTRUCTION CONTRACTOR" means M.A. Xxxxxxxxx Company.
"CONSTRUCTION FUND ACCOUNT" means the account designated as such
established and maintained pursuant to the Sale and Servicing Agreement.
"CONSTRUCTION PHASE MORTGAGE" means that certain Fee and Leasehold
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,
instrument or other document, commitment, arrangement, or undertaking that is
binding on any Person or its property under Applicable Law.
"COORS AGREEMENT" means the Agreement for Founding Partner Rights,
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 ENTITY" has meaning set forth in Section 5.11(a)(i).
"DAMAGES" means all actual losses, damages, costs, expenses,
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
trust created pursuant to the Trust Agreement.
"DENVER POST AGREEMENT" means the Agreement for Founding Partner
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
3.2(c).
"DEVELOPMENT PROPERTY" means the real property more particularly
described in EXHIBIT "A-2" attached hereto.
"DROP DEAD DATE" shall have the meaning set forth in Section 9.2.
"DURA" means the Denver Urban Renewal Authority.
"EFFECTIVE DATE" means April 25, 1999.
"EMPLOYEE PLAN" of a Person means any plan, contract, commitment,
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
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:
(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;
(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.
"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 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 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.
"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 8.3.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8.3.
"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, "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, 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 Recital C.
"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 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).
"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
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.
"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 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.
"PARTNERSHIP ENTITY" has the meaning set forth in Section 5.11(b).
"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.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"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" shall have 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).
"PROCEEDINGS" has the meaning set forth in Section 5.4(a).
"PURCHASE PRICE" has the meaning set forth in Section 2.4.
"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.
"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.
"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 INDEMNITEE" has the meaning set forth in Section 8.2.
"SELLER" has the meaning set forth in the introductory paragraph of
this Agreement.
"SPORTS ENTITIES" (individually, "SPORTS ENTITY") means Ascent Sports,
Nuggets LP and Avalanche LLC.
"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 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).
"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, and Sports 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.
"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.
"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.
"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.
"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.
"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.
ARTICLE II.
PURCHASE AND SALE
1.2 ASCENT SPORTS SHARES AND RELATED 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: (i) the Ascent Sports Shares, (ii) the AEG Nuggets LP
Partnership Interest, and (iii) the AEG Avalanche Membership Interest.
1.3 ADC SHARES. At Closing, subject to the terms and conditions of this
Agreement, AEG shall sell, transfer, convey and deliver to New Arena, and New
Arena shall purchase from AEG, the ADC Shares, free and clear of all Liens.
1.4 ASCENT ARENA COMPANY MEMBERSHIP INTERESTS. At the Closing, subject
to the terms and conditions of this Agreement, AEG shall sell, transfer, convey
and deliver to New Arena, and New Arena shall purchase from AEG, free and clear
from all Liens, AEG's 7.5% Ascent Arena Company Membership Interest, which at
the time will include the Ascent Arena Company Membership Interest held by LDA
as of the Effective Date.
1.5 PURCHASE PRICE. The purchase price for the Purchased Entities shall
be $260,000,000 (the "PURCHASE PRICE"), paid in cash by wire transfer of
immediately available funds to an account designated by Seller.
ARTICLE III.
COVENANTS OF SELLER
1.6 COMPLIANCE WITH CONTRACTS AND APPLICABLE LAW.
(1) NUGGETS. From the Effective Date through the Closing Date, AEG,
Ascent Sports 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.
(2) AVALANCHE. From the Effective Date through the Closing Date, AEG,
Ascent Sports 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.
(3) ASCENT ARENA ENTITIES. From the Effective Date through the Closing
Date, AEG 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.
1.7 CONDUCT OF BUSINESS IN THE ORDINARY COURSE.
(1) SPORTS ENTITIES. At all times prior to the Closing, neither AEG 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:
(1) 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);
(2) 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;
(3) amend any Sports Entities Contract, except as expressly required
by this Agreement;
(4) amend any Organizational Document of such entities;
(5) make a loan (other than for reasonable travel expenses in the
ordinary course of business) to any Person, including, without limitation, an
Affiliate;
(6) 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);
(7) 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 AEG;
(8) 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;
(9) 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
(10) 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 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.
(2) ASCENT ARENA ENTITIES AND THE DEVELOPMENT PROPERTY. At all times
prior to Closing, neither AEG 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:
(1) 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;
(2) 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;
(3) 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;
(4) amend any Organizational Document of any Ascent Arena Entity;
(5) make a loan (other than for reasonable travel expenses in the
ordinary course of business) to any Person, including, without limitation, an
Affiliate;
(6) 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);
(7) make any distribution, dividend or other payment to its members
or shareholders;
(8) 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 AEG;
(9) 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;
(10) 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
(11) solicit from any Ascent Arena Entity, directly or indirectly,
for AEG or any other Person, any Key Employee; or
(12) 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.
(3) 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 shall
accept or deny approval within 48 hours of such notification. If the Designated
Representative does not deliver to Seller written notification that he has
disapproved such matter within the 48 hour period, such approval shall be deemed
to have been given.
1.8 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.
1.9 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 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.
1.10 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.
1.11 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 by
each Purchased Entity receiving such Post-Closing Funds. Neither AEG nor any
Purchased Entity shall use, or grant any Lien against, the Post-Closing Funds
for any reason.
ARTICLE IV.
CLOSING
1.12 CLOSING. Subject to the terms and conditions of this Agreement, the
sale and purchase of (a) the Ascent Sports Shares, (b) the ADC Shares, (c) the
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) and the Ascent Sports Avalanche Membership Interest are
referred to collectively as the "EQUITY INTERESTS") contemplated by this
Agreement shall take place at a closing (the "CLOSING") to be held at the
offices of Holme Xxxxxxx & Xxxx LLP at 1700 Lincoln, Denver, Colorado on the
fifth Business Day following the satisfaction or waiver of all conditions to the
obligations of the parties set forth in this Agreement, but in no event later
than July 15, 1999, 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.
1.13 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):
(1) Certificates evidencing the Ascent Sports Shares, duly endorsed in
blank to New Sports, together with the written resignations of all directors and
officers of Ascent Sports, effective as of the Closing Date, except for those
directors and officers that New Sports designates in writing prior to Closing.
(2) Certificates evidencing the ADC Shares, duly endorsed in blank to
New Arena, together with the written resignations of all directors and officers
of Ascent Development Corp., effective as of the Closing Date, except for those
directors and officers that New Arena designates in writing prior to Closing.
(3) An assignment to New Arena of all of AEG's right, title and interest
in and to its 7.5% Ascent Arena Company Membership Interest, together with AEG's
resignation as manager thereof, effective as of the Closing Date.
(4) An assignment to New Sports of all of AEG's right, title and
interest in and to the AEG Nuggets Partnership LP Interest.
(5) An assignment to New Sports of all of AEG's right, title and
interest in and to the AEG Avalanche Membership Interest.
(6) 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.
(7) 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.
(8) The opinions, certificates, consents and other documents required to
be delivered pursuant to Section 7.1.
(9) All books, records and accounting papers of the Purchased Entities.
1.14 CLOSING DELIVERIES BY PURCHASERS. At the Closing, Purchasers shall
deliver, or cause to be delivered, to AEG:
(1) by wire transfer in immediately available funds, the Purchase Price;
and
(2) the opinions, certificates and other documents required to be
delivered pursuant to Section 7.2 in form and substance reasonably satisfactory
to AEG.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF AEG
As an inducement to enter into this Agreement, AEG 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.
1.15 GENERAL CORPORATE AND PARTNERSHIP MATTERS.
(1) ORGANIZATION AND STANDING. Each Subject Entity:
(1) is a Person duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(2) has full power and authority to own, lease and operate its
Assets and to conduct its Business as now being conducted; and
(3) 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.
(2) ORGANIZATIONAL DOCUMENTS. The Purchased Entities have 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 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.
(3) CORPORATE POWER; AUTHORIZATION; NO CONTRAVENTION; CONSENTS.
(1) 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.
(2) 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.
(3) 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).
(4) BINDING EFFECT. 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.
(5) 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:
(1) compliance with any applicable requirements of the HSR Act with
respect to the consummation of the transactions contemplated hereby;
(2) 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;
(3) the City Consent;
(4) any Sports Entities Required Governmental Approval; and
(5) as set forth in this Agreement.
(6) 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.
1.16 AUTHORIZED CAPITAL; TITLE TO SHARES AND MEMBERSHIP INTERESTS.
(1) ASCENT DEVELOPMENT CORP.
(1) The authorized capital stock of Ascent Development Corp.
consists solely of 1,000 shares of common stock, par value $1.00 per share, 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.
(2) 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.
(3) 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.
(2) ASCENT ARENA COMPANY.
(1) As of the Closing Date, the Ascent Arena Company Membership
Interests will be as follows:
AEG 7.5%
Ascent Development Corp. 92.5%
(2) AEG and Ascent Development Corp. will have, as of the Closing
Date, good title to 100% of the Ascent Arena Company Membership Interests, free
and clear of all Liens other than those created by this Agreement. AEG and
Ascent Development Corp. will be, as of the Closing Date, the record and
beneficial owners of the Ascent Arena Company Membership Interests in the ratios
stated in Section 5.2(b)(i).
(3) The 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
or Ascent Development Corp. and were issued in compliance with all applicable
Organizational Documents and Applicable Law.
(4) Except as set forth in the Operating Agreement of Ascent Arena
Company, 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
LDA any such convertible or exchangeable interests.
(3) MOUNTAIN MOBILE.
(1) The membership interests comprising Mountain Mobile are as
follows:
Nuggets LP 1/3
Fox Sports Rocky Mountain 1/3
Norac 1/3
(2) 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 Ascent Sports is 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.
(3) 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.
(4) 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.
(4) ARENA OPERATING COMPANY.
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) DENVER ARENA TRUST.
(1) 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.
(2) 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.
(3) 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
Certificateholder, 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 Certificateholder, and the Notes being non-recourse debt of the sole
Certificateholder. 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 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.
(6) AVALANCHE LLC.
(1) The membership interests in Avalanche LLC are as follows:
AEG 50%
Ascent Sports 50%
(2) AEG and Ascent Sports 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.
(3) 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 or
Ascent Sports and were issued in compliance with all applicable Organizational
Documents and Applicable Law.
(4) 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 or Ascent
Sports any such convertible or exchangeable interests.
(7) NUGGETS LP.
(1) The Nuggets LP partnership interests are as follows:
AEG 98.2%
Ascent Sports 1.8%
(2) AEG and Ascent Sports have good title to the Nuggets LP
partnership interests, free and clear of all Liens other than those created by
this Agreement. AEG and Ascent Sports are 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.
(3) 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 or Ascent
Sports and were issued in compliance with all applicable Organizational
Documents and Applicable Law.
(4) 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 or Ascent Sports
any such convertible or exchangeable interests.
(8) 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.
1.17 FINANCIAL STATEMENTS AND UNDISCLOSED LIABILITIES.
(1) 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.
(2) 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) Liabilities disclosed in this Agreement, and (iii)
Liabilities 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.
1.18 LITIGATION. Except as specifically disclosed in SCHEDULE 5.4
attached hereto:
(1) There are no actions, suits, hearings, arbitrations, proceedings
(public or private), claims, disputes, or governmental investigations
(collectively, "PROCEEDINGS") pending, or to the Knowledge of AEG, 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 AEG shall list all such
litigation of which it has Knowledge on Schedule 5.4 ):
(1) which as of the Effective Date purport to affect or pertain
to the Transaction Documents or any of the transactions contemplated thereby; or
(2) as to which there exists a substantial likelihood of an
adverse determination, which determination would result in a Material Adverse
Effect.
(2) As of the Effective Date, no decree, judgment, injunction, writ,
temporary restraining order or any order of any nature has been issued by any
court or other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of the Transaction Documents or directing
that the transactions provided for therein not be consummated as therein
provided.
1.19 EMPLOYEES.
(1) SPORTS ENTITIES' EMPLOYEES. Except as disclosed in Schedule
5.12(b)(i), Schedule 5.5(a) attached hereto lists, as of the 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.
(2) Ascent Arena Entities' Employees. Except as disclosed in Schedule
5.13(e), Schedule 5.5(b) attached hereto lists, as of the 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.
(3) No Resignations by Key Employees. As of the 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.
(4) No Solicitation of Key Employees. Neither AEG 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.
1.20 Employee Benefits.
(1) Purchased Entities Employee Plans.
(1) 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.
(2) 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.
(3) 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.
(4) 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 contemplated by this Agreement will not cause the acceleration
of vesting in, or payment of, any benefits under any Purchased Entities Employee
Plan.
(5) 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.
(6) 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).
(2) 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.
(3) Purchased Entities Qualified Plans.
(1) 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.
(2) 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.
(4) 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.
1.21 Labor and Employment Matters.
(1) Except as set forth in Schedule 5.7(a) attached hereto, (i) to the
Knowledge of AEG, 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 AEG, 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 AEG, threatened against or
directly affecting any of the Purchased Entities; (iii) as of the 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 AEG no claims therefor exist; (iv) no
collective bargaining agreement exists that is binding on any of the Purchased
Entities; and (v) as of the Effective Date, neither AEG, 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.
(2) To the Knowledge of AEG, as of the Effective Date, there are no
organizational efforts presently being made involving any nonorganized employees
of any of the Purchased Entities.
1.22 Intellectual Property.
(1) Schedule 5.8(a) attached hereto sets forth a complete and correct
list of all Intellectual Property.
(2) 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.
(3) 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 AEG, 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.
(4) 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 AEG, 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 Effective Date, whether or not resolved in favor of the
Purchased Entities.
1.23 Environmental Compliance.
(1) To the Knowledge of AEG, 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.
(2) 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.
(3) Seller has not received notice of any claims which are pending and,
to the Knowledge of AEG, 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).
(4) 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 AEG or an Affiliate of AEG or its respective consultants and agents have been
made available to Purchasers.
1.24 Insurance.
(1) 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 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.
(2) 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.
1.25 Tax Matters.
(1) Corporate Entities.
(1) All Returns required to be filed by or on behalf of any
Purchased Entity that is a corporation (each, a "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.
(2) 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 withhold or pay
over and such failures to comply as would not, individually or in the aggregate,
have a Material Adverse Effect.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) None of the Corporate Entities 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.
(8) 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 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.
(9) 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 Corporate Entity has entered into any agreement, contract,
arrangement or plan that has resulted or would result, separately or in the
aggregate, in the payment of any amount subject to the provision of Section 280G
or Section 4999 of the Code or any similar provision of state, local or foreign
tax law.
(C) 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.
(D) No consent under Section 341(f) of the Code has been
filed with respect to any Corporate Entity.
(E) No Corporate Entity has disposed of any property that is
currently being accounted for under the installment method.
(F) 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.
(G) No Corporate Entity is a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Code and Purchasers
are not required to withhold any amount on the acquisition of the shares of any
Corporate Entity.
(H) 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.
(I) 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.
(J) 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.
(10) If Purchasers notify Seller in writing that Purchasers will not
make the election under Section 11.13, then within 10 days after receipt of such
written notice, Seller shall prepare a Schedule 5.11(a)(x) and deliver it to
Purchasers, which schedule shall contain accurate and complete information with
respect to:
(A) All material tax elections in effect with respect to each
Corporate Entity;
(B) The current tax basis of the assets of each Corporate
Entity broken out by asset class;
(C) The net operating losses of each Corporate Entity by
taxable year;
(D) The net capital losses of each Corporate Entity by
taxable year;
(E) The tax credit carryovers of each Corporate Entity; and
(F) The overall foreign losses of each Corporate Entity
under section 904(f) of the Code that are subject to recapture.
(2) Partnership Entities.
(1) All Returns required to be filed by or on behalf of any
Purchased Entity that is a limited partnership or limited liability company
(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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6) Each Partnership Entity has been properly classified as a
"partnership" for federal income tax purposes at all times since its formation.
(7) 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.
(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.
(8) 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.
(9) If Purchasers notify Seller in writing that Purchasers will not make
the election under Section 11.13, then within 10 days after receipt of such
written notice, Seller shall prepare a Schedule 5.11(b)(ix) and deliver it to
Purchasers, which schedule shall contain accurate and complete information with
respect to:
(A) All material tax elections in effect with respect to each
Partnership Entity; and
(B) The current tax basis of the assets of each Partnership
Entity broken out by asset class.
1.26 Sports Entities.
(1) 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.
(2) Sports Entities Contracts.
(1) As of the 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.
(2) Seller has provided true and correct copies of the Sports
Entities Contracts to New Sports. As of the 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 AEG, 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.
(3) 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 AEG 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 AEG, of 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.
(4) 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.
(3) Arena Land.
(1) 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.
(2) 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 AEG, contemplated rezoning.
(3) To the Knowledge of AEG, 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.
(4) There are no condemnation proceedings or eminent domain
proceedings of any kind pending or, to the Knowledge of Seller, threatened
against the Arena Land.
(5) 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.
(6) To the Knowledge of AEG, 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.
(7) 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.
(8) 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 Effective
Date under any Applicable Law to permit development of the Pepsi Center on the
Arena Land.
(9) All easements required or necessary as of the Effective Date
for Seller's intended use and development of the Arena Land and the Pepsi Center
have been conveyed.
(4) 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.
(5) Affiliate Contracts. As of the 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.
(6) Permits; Required Consents.
(1) 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").
(2) 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 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.
(7) 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.
1.27 Ascent Arena Entities.
(1) Denver Arena Trust. Ascent Arena Company has not received any
distributions of the Residual Interest or other amounts pursuant to the
Trust Agreement.
(2) Licenses. As of the Effective Date and to the Knowledge of AEG, 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 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 maintenace 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 AEG, no
such revocation or suspension is pending or threatened. To the Actual Knowledge
of AEG, the Licenses will be in full force and effect immediately after the
Closing.
(3) 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.
(4) Advance Booking Contracts. As of the 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.
(5) 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 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.
1.28 Pepsi Center.
(1) Construction Issues.
(1) AEG has made available to New Arena true and complete copies of
the Plans and Specifications and all written inspection and status reports
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").
(2) 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").
(3) 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 AEG 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 Effective Date.
(4) All portions of the Pepsi Center constructed as of the 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 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.
(5) 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.
(6) 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 AEG, there exist no violations of such
approvals or conditions of such approvals which have not been satisfied.
(7) 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 AEG, Exhibit D sets forth
a complete and accurate statement of the status of construction of the Pepsi
Center as of April 17, 1999.
(8) Except as disclosed in the Construction Reports or Exhibit D, the
Construction Contractor has not notified AEG or any of its Affiliates that (A)
the target 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.
(9) As of the Effective Date, there is no pending or, to the Knowledge
of AEG, threatened labor dispute, strike or work stoppage with respect to
construction of the Pepsi Center.
(10) 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.
(2) Arena Contracts.
(1) AEG 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).
(2) [Intentionally omitted.]
(3) 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 AEG, any material default or material event of default of any
other party to an Arena Contract.
(4) 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.
(5) 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.
(6) AEG 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.
(7) 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.
(8) Other than as set forth in the Arena Contracts, no prepayments
have been made under any Arena Contract.
(9) 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 AEG's indirect
ownership.
(10) AEG 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.
(3) Accounts. As of April 23, 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.
1.29 Mountain Mobile.
(1) No Defaults. To the Actual Knowledge of AEG, Mountain Mobile is not
in default of any obligation to any Person pursuant to any Contract which
default would have a Material Adverse Effect.
(2) 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.
(3) Compliance with Laws. Except as set forth in Schedule 5.15(c)
attached hereto, to the Actual Knowledge of AEG, 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.
1.30 Development Property.
(1) Ascent Development Corp. has 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 AEG, there are no unrecorded or undisclosed documents or
other matters which affect title to the Development Property (other than
Permitted Liens). Ascent Development Corp. has not leased or subleased any
parcel or any portion of any parcel of the Development Property to any other
Person other than pursuant to the Conoco Lease.
(2) To the Knowledge of AEG, Ascent Development Corp. has committed no
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.
(3) There are no condemnation proceedings or eminent domain proceedings
of any kind pending or, to the Knowledge of AEG, threatened against any of the
Development Property.
(4) 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.
(5) To the Knowledge of AEG, 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.
1.31 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 Xxxxx & Company Incorporated as
financial advisor to Seller. Seller shall be solely responsible for all costs
and expenses due Xxxxx & Company Incorporated.
1.32 No Other Representations or Warranties. The Purchasers acknowledge
that AEG 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.
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 Effective Date and as of
the Closing Date unless limited to a specific date.
1.33 Existence and Power. 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, 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. This Agreement constitutes a
legal, valid and binding agreement of each of New Sports and New Arena,
enforceable in accordance with its terms.
1.34 Governmental Authorization. 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:
(1) compliance with any applicable requirements of the HSR Act with
respect to consummation of the transactions contemplated hereby;
(2) compliance with the registration requirements of the Securities Act,
or an exemption therefrom, and any applicable state blue sky laws; and
(3) as set forth in this Agreement.
1.35 Non-Contravention. -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.
1.36 Securities Matters.
(1) 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.
(2) 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 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.
(3) 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.
(4) 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.
(5) 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.
1.37 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.
1.38 Litigation. There is no proceeding pending or to the knowledge of
New Sports and New Arena, threatened against or affecting New Sports or New
Arena before any court or arbitrator or any governmental body, agency or
official, that in any matter challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement.
1.39 Beneficial Ownership.
(1) 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 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.
(2) 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.
1.40 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.
1.41 Financial Matters. Purchasers have, or at Closing will have,
sufficient funds available to consummate the transactions contemplated by this
Agreement.
ARTICLE VII.
CONDITIONS TO CLOSING
1.42 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:
(1) 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.
(2) All of the representations and warranties of AEG 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),
(H), (I) and (b)(viii)(A), (B), (C), (D) and (E) of Section 5.11 which are not
conditions to Closing.
(3) AEG 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.
(4) 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 or any other legal
restraint or prohibition preventing the consummation of the Closing shall be in
effect.
(5) 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.
(6) 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.
(7) 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.
(8) 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 the Avalanche Assignee
and/or New Sports or one of its Affiliates, as the case may be, 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.
(9) The City Consent shall have been obtained without the imposition of
any conditions that would result in a Material Adverse Effect.
(10) 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.
(11) 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.
(12) Purchasers must have received evidence satisfactory to it that all
Liabilities of any Purchased Entity to AEG 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).
(13) Purchasers must have received current certificates of good standing
from the Delaware Secretary of State with regard to AEG, Ascent Sports, Nuggets
LP, Ascent Development Corp., and Denver Arena Trust.
(14) 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.
(15) 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.
(16) All documents required to be delivered under Article IV must have
been delivered.
1.43 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:
(1) 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.
(2) The representations and warranties of Purchasers contained in this
Agreement must be true and correct in all material respects as of the Closing
Date.
(3) 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 or any other legal
restraint or prohibition preventing the consummation of the Closing shall be in
effect.
(4) 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.
(5) 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.
(6) 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.
(7) All Liabilities of AEG to any Purchased Entity shall have been
forgiven and discharged, excluding only the Liabilities created by this
Agreement.
(8) 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.
(9) 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.
(10) 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 the Avalanche
Assignee and/or New Sports or one of its Affiliates, as the case may be,
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.
(11) The City Consent shall have been obtained without the imposition of
any conditions that would result in a Material Adverse Effect.
ARTICLE VIII.
INDEMNIFICATION AND DISPUTE RESOLUTION
1.44 Indemnification of Purchasers.
(1) 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:
(1) 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 being deemed to have waived if Purchasers
had actual knowledge of such breach and nonetheless chose to consummate the
transactions contemplated hereby);
(2) 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).
(2) 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.
1.45 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:
(1) the breach of any representation or warranty made by Purchasers
contained in this Agreement; or
(2) the breach of any covenant or agreement by Purchasers contained in
this Agreement.
1.46 Procedures for Third-Party Claims. Promptly after the receipt by a
Purchaser Indemnitee or a Seller Indemnitee (either, 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 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.
1.47 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.
1.48 Dispute Resolution. After the Closing Date, if the 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 parties 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 Seller and one shall be selected by
Purchasers. A knowledgeable, disinterested and impartial arbitrator shall be
selected by the two arbitrators so appointed by the parties. If the arbitrators
previously appointed by the parties cannot agree upon the third arbitrator
within 10 calendar days, then the 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 the parties may otherwise agree.
The arbitral award shall be in writing and include an award of costs, including
reasonable attorneys' fees and disbursements. If the award does not apportion
costs, (a) each party shall be responsible for the expenses incurred by the
arbitrator appointed by each party and the expenses, fees, and costs of the
third arbitrator shall be borne 50% by Seller and 50% by Purchasers, and (b) in
the event that a single arbitrator is selected, the expenses of that arbitrator
will borne 50% by Seller and 50% by Purchasers. Any party may apply to any court
to enforce the decision of the arbitrator(s).
ARTICLE IX.
TERMINATION
1.49 Mutual Agreement. This Agreement may be terminated at any time
prior to the Closing by the mutual written agreement of all of the parties
hereto.
1.50 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 July 15, 1999 (the "Drop
Dead Date").
1.51 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.
1.52 Failure to Close. This Agreement may be terminated by Purchasers or
Seller if the Closing shall not have been consummated by the last day for the
Closing to occur as determined pursuant to Section 4.1; 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.
1.53 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,
and (ii) the rights and remedies available to a party as a result of any willful
breach of any provisions of this Agreement.
ARTICLE X.
OTHER AGREEMENTS
1.54 Further Assurances. Subject to the terms and conditions of this
Agreement, each party 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 and Purchasers 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.
1.55 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.
1.56 Administration of Accounts. All payments and reimbursements made by
any third party to AEG 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 AEG in trust for the benefit
of New Sports or New Arena, as the case may be, and, immediately upon receipt by
AEG of any such payment or reimbursement, AEG 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.
1.57 Guarantee of Performance. The obligations of the Purchasers to
acquire the Equity Interests will be personally guaranteed by Xxxxxxx and Xxxxx
Xxxxxx.
1.58 Taxes.
(1) Pre-Closing Matters.
(1) Seller shall cause any tax-sharing agreements, tax indemnity
agreements, tax allocation agreements, or similar agreements with respect to a
Purchased Entity, and any power of attorney with respect to Tax matters of a
Purchased Entity, to be terminated on or prior to the Closing Date so that from
and after the Closing Date the Purchased Entities shall not be bound thereby nor
have any liability thereunder.
(2) No material new elections with respect to Taxes nor any
material changes in current elections with respect to Taxes affecting any
Purchased Entity shall be made after the date of this Agreement without the
prior written consent of Purchaser.
(3) 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.
(4) 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.
(5) 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.
(6) Seller shall cooperate with Purchasers with respect to
structure matters relating to Tax efficiencies prior to Closing.
(7) Prior to the Closing, Seller shall pay all Non-Income Taxes no
later than five business days after such Non-Income Taxes are due.
(8) Seller agrees that the amount of Non-Income Taxes 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.
(2) Allocation of Taxes for Pre-Closing and Post-Closing Periods.
(1) Seller shall pay all Income Taxes of a Purchased 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 ' 1.1502-13 or with respect to any excess loss
account described in Treasury Regulation ' 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 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. The Income Taxes attributable to
a Purchased 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
allocable to a Pre-Closing Period.
(2) 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 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
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 for
the period ending on the Closing Date.
(3) If, for any Post-Closing Period, a Corporate Entity earns any
credit or recognizes any loss that cannot be applied against its tax liability
or the tax liability of another member of the Purchaser's consolidated group for
such period, and is permitted by law to carryback such credit or loss to a
period ending on or prior to the Closing Date and used therein, then such loss
or credit shall be carried back with the consent of Seller to the period ending
on or before the Closing Date and Seller shall pay to Purchasers 100% of such
amount, if such amount is allowed as a credit against tax, and the maximum
applicable corporate tax rate applied to such amount, if such amount is allowed
as a loss or deduction. Seller shall cooperate with Purchasers in a prompt and
timely manner, in connection with the preparation and filing of any Return with
respect to such carryback item or any information for any administrative or
judicial proceedings involving such Return. In the event that Seller makes a
payment to Purchasers with respect to an allowed credit, loss or deduction
pursuant to this Section 10.5(b)(iii) and such credit, loss or deduction is
subsequently disallowed in whole or in part, Purchasers shall pay Seller 100% of
the disallowed amount if such amount was a credit against tax and the maximum
applicable corporate tax rate (as designated above) applied to the disallowed
amount if such amount was a loss or deduction.
(3) Transfer Taxes. Except as provided in the next sentence, Seller
shall pay 50%, and Purchasers shall pay 50%, of any sales, use, transfer, stamp,
documentary or other similar Taxes and any recording and filing fees
(collectively "Transfer Taxes"), incurred in connection with the transactions
pursuant to this Agreement and Seller and Purchasers shall jointly prepare and
timely file all Returns with respect to such Transfer Taxes. If Purchasers elect
to restructure the transactions hereunder pursuant to Section 11.13 and Seller
takes the steps required by the first sentence of Section 11.13, Purchasers
shall pay 100% of the Transfer Taxes with respect to the transactions hereunder
(including the steps taken by Seller pursuant to the first sentence of Section
11.13) and Purchasers shall prepare all Returns with respect to such Transfer
Taxes and the Party required to file such Returns shall timely file such
Returns.
(4) Indemnification.
(1) 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
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 '
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 for any
Pre-Closing Period for the Taxes of any other person (other than another
Purchased Entity) as a transferee, a successor, by contract, pursuant to
Treasury Regulation ' 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 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).
(2) 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
(3) Any indemnity payments made between the parties shall be
treated as an adjustment to the Purchase Price.
(5) Preparation of Returns.
(1) All Returns for a Purchased 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 cause the Proposed Return to comply with the Return
Preparation 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.
(2) Except for state and federal income Tax Returns described in
paragraph (i) above, all Returns with respect to a Purchased 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 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 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.
(3) 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 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.
(6) Notification of Proceedings. In the event that Purchasers receive
written notice of any Tax matter with respect to a Purchased Entity that could
affect Seller, or Seller receives written notice of any Tax matter with respect
to a Purchased 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.
(7) Cooperation.
(1) 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 its activities. Such cooperation shall include making
available any information, records and documents in their possession or under
their control related to any Purchased 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 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.
(2) 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.
(3) 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, 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.
(8) 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 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 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.
(9) 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.
1.59 Employee Benefit Plans.
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
1.60 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 or
Purchasers 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 party.
1.61 Costs and Expenses. Seller and Purchasers 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.
1.62 Conditions to Closing. Each party hereto shall use all reasonable
efforts to satisfy the applicable conditions to the Closing set forth in Article
VII.
ARTICLE XI.
MISCELLANEOUS
1.63 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:
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 Purchasers:
0000 Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx, XX 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
Holme 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
Shook, Hardy & Bacon L.L.P.
0000 Xxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Xxxxxxxx X. Xxxxxxxxxx, Esq.
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.
1.64 Amendments; No Waivers.
(1) 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.
(2) 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
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.
1.65 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;
provided, however, New Sports shall have the right to assign to the Avalanche
Assignee or one of Purchasers' Affiliates the rights of New Sports under this
Agreement to acquire the membership interests of Avalanche LLC and/or a one-
sixth interest in Mountain Mobile, and the benefits and burdens of the
provisions of this Agreement related thereto, including, without limitation, the
representations, warranties and covenants related to Avalanche LLC, Ascent
Sports, Mountain Mobile and their respective Assets; provided that any such
assignment (a) shall not delay the Closing, and (b) shall not adversely affect
Seller.
1.66 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.
1.67 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.
1.68 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.
1.69 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.
1.70 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.
1.71 Construction.
(1) 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. 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.
(2) 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.
1.72 Cumulative Remedies. Except as provided in Sections 8.1 and 9.5,
the rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
1.73 Survival of Representations, Etc. Except for representations and
warranties relating to the Equity Interests as set forth in Section 5.2 and tax
matters, which shall survive for the applicable statute of limitations period,
the representations, warranties, covenants and agreements of Seller and
Purchasers 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) or 8.1(a)(ii)).
1.74 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.
1.75 Revised Deal Structure. Prior to the Closing Date, if requested by
Purchasers in writing at least 10 days prior to the Closing Date, unless
Purchasers shall have previously notified Seller in writing that they will not
make the election described in this
Section 11.13, Seller shall form two single-member Delaware limited liability
companies (or, at Seller's option, shall contribute all of the capital stock of
Ascent Sports to a direct wholly-owned subsidiary of Seller and all of the
capital stock of Ascent Development Company to a direct wholly-owned subsidiary
of Seller and shall cause such subsidiary or subsidiaries to form two single-
member Delaware limited liability companies) and cause: (a) Ascent Sports to
merge with and into one of such limited liability companies, and (b) Ascent
Development Company to merge with and into the other limited liability company.
In each case, the limited liability company shall be the surviving entity and
hold, as of the Closing Date, all right, title and interest to all of the Assets
of Ascent Sports or Ascent Development Company, as applicable. On the Closing
Date, Seller (or one or more subsidiaries of Seller) shall own 100% of the
issued and outstanding membership interests of each of the surviving limited
liability companies and, in lieu of selling the Ascent Sports Shares and ADC
Shares to Purchasers as provided hereunder, shall sell 100% of such membership
interests to Purchasers. The parties shall cooperate to make such modifications
or amendments to this Agreement as may be needed or appropriate to document the
changes to the transaction structure contemplated by this Section 11.13 and to
delete such provisions of this Agreement as are no longer relevant.
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COUNTERPART SIGNATURE PAGE TO
PURCHASE AND SALE AGREEMENT AMONG ASCENT
ENTERTAINMENT GROUP, INC. AND EPL, LLC AND EPL II, LLC
DATED AS OF APRIL 24, 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: ______________________________________
Name: ______________________________
Title: ___________________________
NEW ARENA:
---------
EPL, LLC, a Missouri limited liability company
By: ____________________________________
Xxxxx Xxxxxx Xxxxxx, Manager
By: ____________________________________
Xxxxxxx X. Xxxxxx, Manager
NEW SPORTS:
----------
EPL II, LLC, a Missouri limited liability company
By: ____________________________________
Xxxxx Xxxxxx Xxxxxx, Manager
By: ____________________________________
Xxxxxxx X. Xxxxxx, Manager
COUNTERPART SIGNATURE PAGE TO
PURCHASE AND SALE AGREEMENT AMONG ASCENT
ENTERTAINMENT GROUP, INC. AND EPL, LLC AND EPL II, LLC
DATED AS OF APRIL ___, 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: ______________________________________
Name: ______________________________
Title: ___________________________
NEW ARENA:
---------
EPL, LLC, a Missouri limited liability company
By: ____________________________________
Xxxxx Xxxxxx Xxxxxx, Manager
By: ____________________________________
Xxxxxxx X. Xxxxxx, Manager
NEW SPORTS:
----------
EPL II, LLC, a Missouri limited liability company
By: ____________________________________
Xxxxx Xxxxxx Xxxxxx, Manager
By: ____________________________________
Xxxxxxx X. Xxxxxx, Manager
