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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended June 30, 1999
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from n/a to n/a
--- ---
Commission File Number 0-27192
ASCENT ENTERTAINMENT GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 52-1930707
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1225 Seventeenth Street, Suite 1800
Denver, Colorado 80202
(Address of principal executive office)
(303) 308-7000
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding twelve (12) months (or for such shorter period that
the Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No
---- ----
The number of shares outstanding of the Registrant's Common Stock as of June
30, 1999 was 29,755,600 shares.
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
ASCENT ENTERTAINMENT GROUP, INC.
Condensed Consolidated Balance Sheets
(Unaudited)
(in thousands, except par value amounts)
<TABLE>
<CAPTION>
June 30, December 31,
1999 1998
---- ----
<S> <C> <C>
ASSETS
------
Current Assets:
Cash and cash equivalents............................... $ 69,326 $ 44,576
Receivables, net........................................ 38,208 36,413
Deferred income taxes................................... 3,684 417
Prepaid expenses and other current assets (Note 3)...... 11,108 2,983
Net assets of discontinued operations (Note 3).......... 98,217 132,144
-------- --------
Total current assets.............................. 220,543 216,533
-------- --------
Property and equipment, net................................ 291,475 296,513
Goodwill, net.............................................. 93,294 96,503
Investments................................................ 1,365 1,493
Deferred income taxes...................................... 3,866 3,866
Other assets, net.......................................... 7,582 8,717
-------- --------
Total Assets............................................... $618,125 $623,625
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
Current liabilities:
Accounts payable........................................ $ 26,506 $ 23,668
Deferred income......................................... 2,509 2,412
Other taxes payable.................................... 6,576 7,480
Accrued compensation.................................... 10,925 7,588
Income taxes payable.................................... 1,636 1,821
Other accrued liabilities............................... 16,200 14,348
-------- --------
Total current liabilities......................... 64,352 57,317
-------- --------
Long-term debt (Note 4).................................... 324,001 305,537
Other long-term liabilities................................ 1,783 2,300
-------- --------
Total liabilities................................. 390,136 365,154
-------- --------
Minority interest.......................................... 76,590 81,945
Commitments and contingencies (Note 5)..................... -- --
Stockholders' equity:
Preferred stock, par value $.01 per share,
5,000 shares authorized, none outstanding..............
Common stock, par value $.01 per share,
60,000 shares authorized; 29,756
shares issued and outstanding.......................... 297 297
Additional paid-in capital.............................. 307,685 306,358
Accumulated deficit..................................... (156,583) (130,872)
Accumulated other comprehensive income.................. -- 743
-------- --------
Total stockholders' equity........................ 151,399 176,526
-------- --------
Total Liabilities and Stockholders' Equity................. $618,125 $623,625
======== ========
</TABLE>
See accompanying notes to these condensed unaudited consolidated financial
statements.
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08/12/999:26 AM
ASCENT ENTERTAINMENT GROUP, INC.
Condensed Consolidated Statements of Operations
(Unaudited)
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
1999 1998 1999 1998
------------- -------------- ------------- ------------
<S> <C> <C> <C> <C>
Revenues............................................ $ 68,268 $ 65,925 $134,596 $126,656
-------- -------- -------- --------
Operating expenses:
Cost of services.................................. 46,854 46,402 92,032 88,402
Depreciation and amortization..................... 26,778 24,273 52,028 48,219
General and administrative........................ 4,927 2,497 7,909 4,634
-------- -------- -------- --------
Total operating expenses..................... 78,559 73,172 151,969 141,255
-------- -------- -------- --------
Loss from continuing operations before
interest, taxes and minority interest........ (10,291) (7,247) (17,373) (14,599)
Interest and other income, net...................... 2,670 313 3,479 723
Interest expense.................................... (7,095) (5,941) (13,950) (11,334)
-------- -------- -------- --------
Loss from continuing operations before taxes
and minority interest........................... (14,716) (12,875) (27,844) (25,210)
Income tax benefit.................................. 988 76 1,303 102
-------- -------- -------- --------
Loss from continuing operations before
minority interest............................... (13,728) (12,799) (26,541) (25,108)
Minority interest in
loss of subsidiary, net of taxes................ 3,652 3,048 6,612 6,421
-------- -------- -------- --------
Loss from continuing operations..................... (10,076) (9,751) (19,929) (18,687)
Income (loss) from discontinued operations, net of
taxes (Note 3)................................. 225 (8,264) (9,017) (12,212)
Gain on sale of discontinued operations,
net of taxes (Note 3).......................... -- -- 3,237 --
-------- -------- -------- --------
Net loss............................................ $ (9,851) $(18,015) $(25,709) $(30,899)
======== ======== ======== ========
Basic and diluted net income (loss) per common share:
From continuing operations..................... $ (.34) $ (.33) $ (.67) $ (.63)
From Discounted operations..................... .01 (.28) (.19) (.41)
-------- -------- -------- --------
Basic and diluted net
loss per share................................... $ (.33) $ (.61) $ (.86) $ (1.04)
======== ======== ======== ========
Weighted average number of
common shares outstanding...................... 29,756 29,756 29,756 29,756
======== ======== ======== ========
</TABLE>
See accompanying notes to these condensed unaudited consolidated financial
statements.
3
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ASCENT ENTERTAINMENT GROUP, INC.
Condensed Consolidated Statements of Cash Flows
(Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Six Months Ended June 30,
1999 1998
--------- ---------
<S> <C> <C>
Operating activities:
Net loss............................................. $(25,709) $(30,899)
Adjustments to reconcile net loss to
net cash provided by continuing operations:
Loss from discontinued
operations, net of gain.................... 5,780 12,212
Depreciation and amortization.................. 52,028 48,219
Minority interest in losses
of subsidiary.............................. (6,612) (6,421)
Interest accretion on Senior
Secured Notes.............................. 8,463 7,591
Changes in operating assets and
liabilities................................ (5,199) (4,692)
-------- --------
Net cash provided by operating
activities of continuing operations............. 28,751 26,010
Net cash provided by discontinued
operations...................................... 7,884 2,770
-------- --------
Net cash provided by operating activities............ 36,635 28,780
-------- --------
Investing activities:......................................
Proceeds from sale of Beacon
Communications, LLC.......................... 15,893 --
Purchase of property and equipment................... (40,858) (47,250)
Payments on note receivable.......................... 1,322 1,322
Proceeds from sale of investments.................... 1,758 264
-------- --------
Net cash used in investing activities................ (21,885) (45,664)
-------- --------
Financing activities - proceeds from
borrowings under credit facilities.................... 10,000 21,000
-------- --------
Net increase in cash and cash
equivalents........................................... 24,750 4,116
Cash and cash equivalents, beginning
of period............................................. 44,576 23,598
-------- --------
Cash and cash equivalents, end
of period............................................. $ 69,326 $ 27,714
======== ========
Supplemental cash flow information:
Interest paid, net of interest capitalized............ $ 5,072 $ 4,674
======== ========
Income taxes paid..................................... $ 308 $ 77
======== ========
</TABLE>
See accompanying notes to these condensed unaudited
consolidated financial statements.
4
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ASCENT ENTERTAINMENT GROUP, INC.
Condensed Consolidated Statements of Comprehensive Loss
(Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net loss................................. $(9,851) $(18,015) $(25,709) $(30,899)
Other comprehensive income (loss):
Unrealized gain (loss) on securities.. (1,024) (684) (1,143) 513
Income tax (expense) benefit related
to other comprehensive income....... 358 239 400 (180)
-------- -------- -------- --------
Other comprehensive income (loss),
net of tax.......................... (666) (445) (743) 333
-------- -------- -------- --------
Comprehensive Loss....................... $(10,517) $(18,460) $(26,452) $(30,566)
======== ======== ======== ========
</TABLE>
See accompanying notes to these condensed unaudited
consolidated financial statements.
5
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ASCENT ENTERTAINMENT GROUP, INC.
Notes to Condensed Consolidated Financial Statements (Unaudited)
1. General
The accompanying unaudited condensed consolidated financial statements have
been prepared by Ascent Entertainment Group, Inc. ("Ascent" or the "Company")
pursuant to the rules and regulations of the Securities and Exchange Commission
(the "Commission"). These financial statements should be read in the context of
the financial statements and notes thereto filed with the Commission in the
Company's 1998 Annual Report on Form 10-K. Certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed or omitted
pursuant to such regulations. The accompanying unaudited condensed consolidated
financial statements reflect all adjustments and disclosures which are, in the
opinion of management, necessary for a fair presentation. All such adjustments
are of a normal recurring nature. The results of operations for the interim
periods are not necessarily indicative of the results for the entire year.
Certain amounts in prior periods have been reclassified to conform with the
current periods presentation, most notably the discontinued operations
presentation of the Company's former entertainment segment (see Notes 2 and 3).
2. Organization and Basis of Presentation
The accompanying consolidated financial statements include the accounts of
Ascent and its majority-owned subsidiary, On Command Corporation ("OCC"). Ascent
Network Services, Inc. ("ANS"), formerly a wholly owned subsidiary of Ascent,
was merged into Ascent and became an operating division of Ascent on May 30,
1997. Significant intercompany transactions have been eliminated. The Company's
discontinued operations are comprised of the results of the Company's former
entertainment segment, which included the Denver Nuggets, the Colorado Avalanche
and Ascent Arena Company (the "Arena Company"), the owner and manager of the
Pepsi Center, (collectively the "Sports related businesses"), which the Company
has agreed to sell (see Note 3). In addition, discontinued operations include
the results of the Company's former subsidiary, Beacon Communications, LLC
("Beacon"), in which a 90% interest was sold on January 20, 1999. The
accompanying 1998 financial information has been restated to conform to the
discontinued operations presentation of the former entertainment segment and
Beacon.
Ascent executed an initial public offering (the "Offering") of its common
stock on December 18, 1995. Prior to the Offering, Ascent was a wholly owned
subsidiary of COMSAT Corporation ("COMSAT"). Until June 27, 1997 COMSAT
continued to own a majority (80.67%) of Ascent's common stock and control
Ascent. On June 27, 1997, COMSAT consummated the distribution of its 80.67%
ownership interest in Ascent to the COMSAT shareholders on a pro-rata basis in a
transaction that was tax-free for federal income tax purposes (the
"Distribution"). As discussed in Note 13 to the Company's 1998 Consolidated
Financial Statements, Ascent and COMSAT entered into a Distribution Agreement
and a Tax Disaffiliation Agreement in connection with the Distribution. In order
to maintain the tax-free status of the Distribution, Ascent was subject to
numerous restrictions under the Distribution Agreement, most of which have
expired. The most significant restriction still in place is that Ascent shall
not take any action, nor fail or omit to take any action, that would cause the
Distribution to be taxable or cause any representation made in the tax ruling
documents related to the Distribution to be untrue in a manner which would have
an adverse effect on the tax-free status of the Distribution. Ascent and COMSAT
also terminated the Intercompany Services Agreement and Corporate Agreement
entered into in connection with the Offering resulting in among other things,
the termination of the restriction on Ascent's incurring indebtedness without
the consent of COMSAT.
Note 3 - Discontinued Operations:
Beacon - On January 20, 1999, the Company sold 90% of its interest in Beacon to
- ------
an investor group controlled by Beacon's management and venture capital
investors (the "Buyers"). The purchase price for the 90% interest was $19.0
million in cash, net of certain adjustments. The Company received approximately
$15.9 million at closing. The Company believes it is entitled to receive future
cash consideration of approximately $.8 million. The Company
6
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08/12.999:26 AM
intends to continue its efforts to collect this amount, and the Company will
report an additional gain from the Beacon sale when these proceeds are received.
After the sale of the 90% interest, the Company has no future obligations to
fund any of Beacon's liabilities or film development or production commitments.
The 10% interest in Beacon retained by the Company is subject to limited
purchase and sale options between the Company and the Buyers at a price
proportionate to the purchase price. The Company's remaining investment in
Beacon will be accounted for using the cost method. In the first quarter of
1999, the Company reported a gain of $3.2 million on the sale of 90% of its
interest in Beacon.
Sports related businesses - On July 27, 1999, the Company entered into a
- -------------------------
definitive agreement to sell its Sports related businesses to a group of
entities controlled by Donald L. Sturm ("The Sturm Group) for $321.0 million in
cash (of which Liberty Denver Arena LLC, an unrelated third party, will receive
up to $20.5 million), subject to further adjustment for cash balances and
receipts received by the Company prior to closing, which relate to the Nuggets
and Avalanche 1999/ 2000 playing seasons. In conjunction with the sale, the
approximate $140.0 million in non-recourse Arena Note obligations will remain
the obligation of an entity to be acquired by the Sturm Group (see Note 6 of the
Company's 1998 Consolidated Financial Statements). Assuming the timely closing,
the Company expects to report a gain, net of transaction costs without giving
effect to taxes, in excess of $150.0 million on the sale of the Sports related
businesses in the third quarter of 1999. Transaction costs, including investment
banker and attorney fees and expenses, fees payable to William and Nancy Laurie
in conjunction with the termination of the previous agreement between Ascent and
the Lauries, which was entered into on April 25, 1999 (see Note 5 of Notes to
Condensed Consolidated Financial Statements), and other associated costs of the
transaction are estimated to be approximately $23.0 million and will be netted
against the proceeds from the transaction for financial reporting purposes. In
conjunction with the pending sale, as of June 30, 1999, the Company has incurred
approximately $9.7 million of such transaction costs. These costs are included
in prepaid expenses and other current assets in the accompanying condensed
consolidated balance sheet at June 30, 1999.
The Company began accounting for Beacon as a discontinued operation as of
December 31, 1998 and for the Sports related businesses as a discontinued
operation as of March 31, 1999, pursuant to guidance contained in Emerging
Issues Task Force Issue No. 95-18, "Accounting and Reporting for Discontinued
Business Segment when the Measurement Date occurs after the Balance Sheet Date
but before the Issuance of the Financial Statements." Accordingly, the
consolidated financial statements have been restated for all prior periods
presented to reflect the results of operations and net assets of Beacon and the
Sports related businesses as discontinued operations. The loss from discontinued
operations of Beacon and the Sports related businesses, net of taxes, for the
three and six month periods ended June 30, 1999 and 1998 is composed of the
following:
<TABLE>
<CAPTION>
Three Months Ended Three Months Ended
June 30, 1999 June 30, 1998
------------------ -------------------------------
Sports Sports
Related Related
Businesses Businesses Beacon Total
----------- ---------- ------ -----
(in thousands)
<S> <C> <C> <C> <C>
Revenues.................................... $ 26,102 $15,878 $ (294) $ 15,584
======== ======= ======= ========
Loss from discontinued operations
before taxes............................... $ (245) $(4,537) $(3,727) $ (8,264)
Income tax benefit.......................... 470 -- -- --
-------- ------- ------- --------
Income (Loss) from discontinued operations.. $ 225 $(4,537) $(3,727) $ (8,264)
======== ======= ======= ========
<CAPTION>
Six Months Ended Six Months Ended
June 30, 1999 June 30, 1998
---------------- -------------------------------
Sports Sports
Related Related
Businesses Businesses Beacon Total
----------- ---------- ------ -----
(in thousands)
<S> <C> <C> <C> <C>
Revenues.................................... $ 64,713 $55,951 $16,934 $ 72,885
======== ======= ======= ========
Loss from discontinued operations
before taxes............................... $(10,509) $(9,171) $(3,041) $(12,212)
Income tax benefit.......................... 1,492 -- -- --
-------- ------- ------- --------
Loss from discontinued operations........... $ (9,017) $(9,171) $(3,041) $(12,212)
======== ======= ======= ========
</TABLE>
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The net assets of the discontinued operations included in the unaudited
condensed consolidated balance sheets as of June 30, 1999 and December 31, 1998,
consist of the following:
<TABLE>
<CAPTION>
6/30/99 12/31/98
------- ---------------------------------------
Sports Sports
Related Related
Businesses Businesses Beacon Total
---------- ---------- ------ -----
(in thousands)
<S> <C> <C> <C> <C>
Current assets..................................... $ 29,895 $ 38,194 $ 3,062 $ 41,256
Property and equipment, net........................ 138,469 92,249 -- 92,249
Restricted cash held in trust...................... 75,604 112,478 -- 112,478
Film inventory..................................... -- -- 48,457 48,457
Franchise rights, net.............................. 90,152 92,559 -- 92,559
Other assets....................................... 25,238 24,453 10,651 35,104
Current liabilities, including current portion of
Arena Notes................................... (79,176) (70,222) (5,763) (75,985)
Non-recourse Arena Notes........................... (136,170) (136,170) (35,079) (171,249)
Other long term liabilities........................ (45,795) (33,725) (9,000) (42,725)
--------- --------- --------- ---------
Net assets of discontinued operations.............. $ 98,217 $ 119,816 $ 12,328 $ 132,144
========= ========= ========= =========
</TABLE>
4. Long-Term Debt
Long-term debt consists of the following at June 30, 1999 and December 31, 1998:
1999 1998
-------- --------
(in thousands)
Senior Secured Discount Notes, 11.875%, due
2004, net of unamortized discount of
$73,999 and $82,463....................... $151,001 $142,537
OCC Credit Facility, variable rate, due 2002.. 173,000 163,000
-------- --------
Total long term debt...................... $324,001 $305,537
======== ========
Bank Credit Facilities - The Company and OCC have separate bank credit
----------------------
facilities. The Ascent credit facility provides for borrowings up to $50.0
million through March 2000. The available borrowings will be permanently
reduced thereafter in varying amounts through 2002 when the Ascent credit
facility will terminate. In connection with the sale of the Sports related
businesses (see Note 3), it is anticipated that the Ascent credit facility will
be terminated or renegotiated. The OCC credit facility provides for borrowings
up to $200.0 million, matures in 2002 and, subject to certain conditions, can be
renewed for an additional two years. Based on borrowings outstanding at June
30, 1999, the Company had access to $50.0 million of long-term financing under
the Ascent credit facility and OCC had access to $27.0 million of long-term
financing under the OCC credit facility, in each case, subject to certain
covenant restrictions (see Note 6 of the Company's 1998 Consolidated Financial
Statements).
5. Contingencies
Litigation - In September 1998, On Command Video (OCV) filed suit against
----------
MagiNet, alleging a breach by MagiNet of a license agreement between OCV and
MagiNet, and terminating the license agreement. OCV has also demanded the
payment of licensee fees from MagiNet which OCV believes were due and payable
under the license agreement and have not been paid by MagiNet. MagiNet has
counter-claimed against OCV, alleging that OCV breached the license agreement,
and alleging various torts by OCV in its relationship with MagiNet.
In June 1999, the Company and certain of its present and former directors
were named as defendants in lawsuits filed by shareholders (the "Shareholder
lawsuits") in June 1999 in the Delaware Court of Chancery. These
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proposed class actions asserted that the Company's agreement to sell the
Company's Sports related businesses to entities controlled by William and Nancy
Laurie constituted a sale of substantially all of the assets of the Company,
thereby requiring a shareholder vote, and resulted from breaches of fiduciary
duties by the director defendants (see Note 3 of Notes to Condensed Consolidated
Financial Statements). On June 23, 1999, the Company, the director defendants
and the Laurie - controlled purchasing entities that were also named as
defendants, entered into an agreement with the shareholder plaintiffs to settle
the lawsuits. Under the settlement agreement, the Company, the director
defendants, and the Laurie-controlled entities agreed, among other things, to
amend the terms of the proposed sale to the Laurie entities to permit the
Company to conduct a new auction process in which the Company would solicit
additional offers for the purchase of the Sports related businesses. The Company
and the director defendants also agreed, among other things, to engage an
additional investment banker to assist in the new auction process, and to add
Peter W. May to the Company's Board of Directors. On July 27, 1999, as a result
of the new auction process, the Company entered into a definitive agreement to
sell the sports related businesses to The Sturm Group. The settlement of the
Shareholder lawsuits is subject to the approval of the Delaware Court of
Chancery after a hearing that is anticipated to occur after the closing of the
sale of the Sports related businesses to The Sturm Group. If approved by the
Court, the settlement would result in, among other things, the dismissal with
prejudice of the claims asserted in the Shareholder lawsuits and the payment by
the Company of plaintiff's attorney fees and expenses in an amount to be
determined by the Court. For the six month period ended June 30, 1999, the
Company has incurred and expensed approximately $1.1 million in connection with
the Shareholder lawsuits.
The Company and its subsidiaries are defendants, and may be potential
defendants, in lawsuits and claims arising in the ordinary course of their
businesses. While the outcomes of such claims, lawsuits, or other proceedings
cannot be predicted with certainty, management expects that such liability, to
the extent not provided for by insurance or otherwise, will not have a material
adverse effect on the financial condition of the Company.
6. Segment Operating Results
As discussed in Note 12 to the Company's 1998 Consolidated Financial
Statements, the Company implemented Statement of Financial Accounting Standards
(SFAS) No. 131, "Disclosures about Segments of an Enterprise and Related
Information," during the fourth quarter of 1998. In accordance with SFAS No.
131, the Company classified its businesses into 3 reporting segments: multimedia
distribution, network services and entertainment. The multimedia distribution
segment includes the video distribution and on-demand video entertainment
services provided by OCC to the lodging industry. The network services segment
includes the results of ANS and the video distribution services it provides to
the NBC television network and other private networks. The Company's former
entertainment segment (see Notes 1 and 3 of Notes to Condensed Consolidated
Financial Statements) included three segments, the Denver Nuggets, the Colorado
Avalanche and the Arena Company. Accordingly, the financial information for the
three and six month periods ended June 30, 1998, have been restated to conform
with the Company's new segment classifications pursuant to SFAS 131 and the
Company's classification of its former entertainment segment and Beacon as
discontinued operations. Results by segment are as follows:
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
1999 1998 1999 1998
---------- ------------ ---------- ------------
Income Statement Data: (in millions)
<S> <C> <C> <C> <C>
Revenues:
Multimedia Distribution..... $ 62.6 $60.9 $123.8 $116.8
Network Services............ 5.7 5.0 10.8 9.9
------ ----- ------ ------
Total.................. $ 68.3 $65.9 $134.6 $126.7
====== ===== ====== ======
Operating income (loss):
Multimedia Distribution(2).. $ (6.5) $(5.3) $(11.6) $(11.4)
Network Services............ 1.2 .6 2.2 1.5
Corporate................... (5.0) (2.5) (8.0) (4.7)
------ ----- ------ ------
Total.................. $(10.3) $(7.2) $(17.4) $(14.6)
====== ===== ====== ======
</TABLE>
9
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08/12/999:26 AM
Other Data:
EBITDA (1):
Multimedia Distribution............... $ 18.3 $17.1 $ 36.5 $ 33.0
Network Services...................... 3.1 2.5 6.0 5.3
General & Administrative.............. (4.9) (2.5) (7.9) (4.7)
------ ----- ------ ------
Total EBITDA..................... 16.5 17.1 34.6 33.6
------ ----- ------ ------
Less reconciling item - depreciation
and amortization.................. 26.8 24.3 52.0 48.2
------ ----- ------ ------
Total operating loss................. $(10.3) $(7.2) $(17.4) $(14.6)
====== ===== ====== ======
Capital Expenditures:
Multimedia Distribution............... $ 20.4 $22.0 $ 40.6 $ 45.2
Network Services...................... .1 .7 .2 1.0
------ ----- ------ ------
Total Capital Expenditures....... $ 20.5 $22.7 $ 40.8 $ 46.2
====== ===== ====== ======
(1) EBITDA represents earnings from continuing operations before interest
expense, income taxes, depreciation, amortization and non-cash charges
related to stock based compensation. The most significant difference
between EBITDA and cash provided from operating activities are changes in
working capital and interest expense under the OCC credit facility. EBITDA
is presented because it is a widely accepted financial indicator used by
certain investors and analysts to analyze and compare companies on the
basis of operating performance. In addition, management believes EBITDA
provides an important additional perspective on the Company's operating
results and the Company's ability to service its long-term debt and fund
the Company's continuing growth. EBITDA is not intended to represent cash
flows for the period, or to depict funds available for dividends,
reinvestment or other discretionary uses. EBITDA has not been presented as
an alternative to operating cash flow or as an indicator of operating
performance and should not be considered in isolation or as a substitute
for measures of performance prepared in accordance with generally accepted
accounting principles, which are presented in the Condensed Consolidated
Statements of Cash Flows (unaudited) and discussed in Liquidity and Capital
Resources.
(2) The Multimedia Distribution segment's operating results reflect the
allocation of intangible assets amortization incurred by Ascent relating to
the acquisition of OCV by Ascent.
7. New Accounting Pronouncements
In June 1998, the Financial Accounting Standards Board issued SFAS No.
133, "Accounting for Derivative Instruments and Hedging Activities," which
defines derivatives, requires that all derivatives be carried at fair value, and
provides for hedging accounting when certain conditions are met. SFAS No. 133,
which has been amended by SFAS 137, is effective for all fiscal quarters of
fiscal years beginning after June 15, 2000. On a forward-looking basis,
although the Company has not fully assessed the implications of SFAS No. 133,
the Company does not believe adoption of SFAS No. 133 will have a material
impact on the Company's financial position or results of operations.
10
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08/12/999:26 AM
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
General:
Certain of the statements in this report are forward-looking and relate to
anticipated future events and operating results. Statements which look forward
in time are based on management's current expectations and assumptions, which
may be affected by subsequent developments and business conditions, and
necessarily involve risks and uncertainties. Therefore, there can be no
assurance that actual future results will not differ materially from anticipated
results. Although the Company has attempted to identify some of the important
factors that may cause actual results to differ materially from those
anticipated, those factors should not be viewed as the only factors which may
affect future operating results. Accordingly, the following should be read in
conjunction with the Condensed Consolidated Financial Statements (unaudited)
included in this filing, and with the Consolidated Financial Statements, notes
thereto, and Management's Discussion and Analysis of Financial Condition and
Results of Operations contained in the Company's 1998 Annual Report on Form 10-
K, as previously filed with the Commission.
Seasonality, Variability and Other:
The Company's businesses are subject to the effects of both seasonality and
variability. Consequently, the operating results for the quarter and six-months
ended June 30, 1999 for each segment and line of business, and for the Company
as a whole, are not necessarily indicative of the results for the full year.
In conjunction with the acquisition of Spectra Vision's assets and certain
liabilities in October 1996, OCC acquired, among other assets, video systems and
equipment. These specific assets, which were recorded at their estimated fair
market value of approximately $41,800,000 in October 1996, are being depreciated
over 36 months. Accordingly, OCC's 1999 fourth quarter operating results will be
impacted from a reduction in depreciation and amortization expense charges
relating to these specific assets.
The Multimedia Distribution segment revenues of OCC are influenced
principally by hotel occupancy rates, the "buy rate" or percentage of occupied
rooms at hotels that buy movies or other services at the property and the price
of the movie or service. Occupancy rates vary by property based on the
property's location, competitive position within its marketplace, seasonal
factors, and general economic conditions. Higher revenues are generally realized
during the summer months and lower revenues realized during the winter months
due to business and vacation travel patterns which impact the lodging industry's
occupancy rates. Buy rates generally reflect the hotel's guest mix profile, the
popularity of the motion picture or services available at the hotel and the
guests' other entertainment alternatives.
ANALYSIS OF OPERATIONS
Three months ended June 30, 1999 compared to three months ended June 30, 1998
Continuing Operations
- ---------------------
Revenues for the second quarter of 1999 were $68.3 million, an increase of
$2.4 million or 3.6%, as compared to $65.9 million in revenues for the second
quarter of 1998. This increase is attributable to a $1.7 million increase in
revenues at OCC within the Multimedia Distribution segment and a $.7 million
increase in revenues at ANS within the Network Services segment. The increase in
revenues at OCC is primarily attributable to increased equipment sales,
continued reductions in movie denial rates, an increase in the number of free-
to-guest services being offered per room and an increase in revenues from new
service offerings at OCC. These increases were partially offset by a decrease in
movie revenues per room as compared to the second quarter of 1998 due primarily
to a strong movie line up in 1998. The increase in revenues at ANS is
attributable to an increase in service revenues from NBC and its affiliates and
other private networks.
Cost of services for the second quarter of 1999 were $46.9 million, an
increase of $.5 million or 1.1% compared to $46.4 million in the second quarter
of 1998. Cost of services at OCC increased by $.5 million. This increase in
costs at OCC is due to increased direct costs associated with the increase in
movie revenues at OCC (primarily hotel
11
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08/12/999:26 AM
commissions and movie royalties) and increased costs associated with equipment
sales partially offset by reduced operating expenses.
Depreciation and amortization for the second quarter of 1999 was $26.8
million, an increase of $2.5 million or 10.3% compared to $24.3 million in the
second quarter of 1998. Depreciation and amortization at OCC increased by $2.5
million. This increase is primarily attributable to the continuing installation
of on-demand video systems at OCC and the resulting increase in depreciation and
the recognition by OCC of a non-cash expense associated with accounting for
cashless stock options in an executive compensation agreement reflecting the
increased share price of OCC's stock.
General and administrative expenses, which include only those costs
incurred by the parent company, were $4.9 million for the second quarter of
1999, an increase of $2.4 million or 96.0% compared to $2.5 million in the
second quarter of 1998. This increase primarily reflects the expense recognized
for the Company's stock appreciation rights of $1.9 million as a result of the
increases in the Company's stock price and costs of $1.1 million incurred in
conjunction with the settlement of a shareholder lawsuit (see Note 5 of Notes to
Condensed Consolidated Financial Statements), partially offset by a reduction of
other operating expenses.
Other income increased by $2.4 million in the second quarter of 1999 as
compared to the second quarter of 1998. This increase is attributable to the
recognition of a $1.8 million gain by the parent company from the sale of
investment securities and from interest income recognized on the Company's cash
and cash equivalent balances.
Interest expense increased $1.2 million in the second quarter of 1999 as
compared to the second quarter of 1998. This increase is attributable to
additional borrowings incurred during 1999 combined with an increase in
borrowing costs at Corporate, primarily those costs related to the interest
accretion on the Company's 11.875% Senior Secured Discount Notes (the "Senior
Notes").
The Company recorded an income tax benefit from continuing operations of
$1.0 million during the second quarter of 1999 as compared to a minimal income
tax benefit from continuing operations during the second quarter of 1998.
EBITDA for the second quarter of 1999 was $16.5 million, a decrease of $.6
million or 3.5% compared to $17.1 million in the second quarter of 1998. This
decrease is attributable to a $2.4 million decrease at Corporate offset by a
$1.2 million increase at OCC and a $.6 million increase at ANS. The decrease at
Corporate reflects the expense recognized for stock appreciation rights and
costs increased in conjunction with the settlement of a shareholder lawsuit (see
Note 5 of Notes to Condensed Consolidated Financial Statements). The increase
at OCC reflects the decrease in operating expenses in the second quarter of 1999
as compared to the same period of 1998. The increase at ANS reflects increased
revenues in the second quarter of 1999 as compared to the same period of 1998.
Minority interest reflects the losses attributable to the minority interest
in the Company's 57% owned subsidiary, OCC.
Discontinued Operations
- -----------------------
Ascent's discontinued operations are comprised of the results of the
Company's former entertainment segment, which includes the Denver Nuggets, the
Colorado Avalanche and the Arena Company. In addition, discontinued operations
include the results of Beacon, which was sold on January 20, 1999. The combined
income from discontinued operations for these entities totaled $.2 million
during the second quarter of 1999 as compared to a loss of $8.3 million during
the comparable period in 1998. The increased income during the second quarter of
1999 is primarily attributable to the operations of the Colorado Avalanche and
the lack of operating losses from Beacon. During the second quarter of 1999, the
Avalanche participated in three rounds of the NHL playoffs as compared to one
round in 1998. Assuming the timely closing of the pending sale of the Sports
related businesses, the Company expects to report a gain on the sale of its
interests in those businesses during the third quarter of 1999.
12
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Six months ended June 30, 1999 compared to six months ended June 30, 1998
Continuing Operations
- ---------------------
Revenues for the first half of 1999 were $134.6 million, an increase of
$7.9 million or 6.2%, as compared to $126.7 million in revenues for the first
half of 1998. This increase is attributable to a $7.0 million increase in
revenues at OCC and a $.9 million increase in revenues at ANS. The increase in
revenues at OCC is primarily attributable to new hotel installations, continued
conversions of hotels served by SpectraVision equipment to On Command Video
equipment, an increase in the number of free-to-guest services being offered per
room, increased equipment sales and continued reductions in movie denial rates.
The increase in revenues in the Network Services segment is attributable to an
increase in service revenues from NBC and its affiliates and other private
networks.
Cost of services for the first half of 1999 were $92.0 million, an increase
of $3.6 million or 4.1% compared to $88.4 million in the first half of 1998.
Cost of services at OCC increased by $3.6 million. This increase in costs at OCC
is due to increased direct costs associated with the increase in movie revenues
at OCC (primarily hotel commissions, movie royalties and free-to-guest expenses)
and increased costs associated with equipment sales partially offset by reduced
operating expenses.
Depreciation and amortization for the first half of 1999 was $52.0 million,
an increase of $3.8 million or 7.9% compared to $48.2 million in the first
quarter of 1998. Depreciation and amortization at OCC increased by $3.7 million.
This increase is primarily attributable to the continuing installation of on-
demand video systems at OCC and the resulting increase in depreciation and a
non-cash expense associated with accounting for cashless stock options in an
executive compensation agreement at OCC, reflecting the increased share price of
OCC's stock.
General and administrative expenses, which include only those costs
by the parent company, were $7.9 million for the first half of 1999, an increase
of $ 3.3 million or 71.7% compared to $4.6 million the first half of 1998. This
increase primarily reflects the expense recognized during the first half of 1999
for the Company's stock appreciation rights of $3.0 million due to increases in
the Company's stock price and costs incurred in conjunction with the settlement
of a shareholder lawsuit of approximately $1.1 million (see Note 5 of Notes to
Condensed Consolidated Financial Statements), partially offset by the reduction
of other operating expenses.
Other income increased by $ 2.8 million in the first half of 1999 as
compared to the same period last year. This increase is primarily attributable
to the recognition of a $1.8 million gain at Corporate from the sale of
investment securities and to an increase in interest income recognized on
Corporate's cash and cash equivalent balances.
Interest expense increased $2.6 million in the first half of 1999 as
compared to the first half of 1998. This increase is attributable to additional
borrowings incurred during 1999 combined with an increase in borrowing costs at
Corporate, primarily those costs related to the interest accretion on the
Senior Notes.
The Company recorded an income tax benefit from continuing operations of
$1.3 million during the first quarter of 1999 as compared to a minimal income
tax benefit from continuing operations during the first half of 1998.
EBITDA for the first half of 1999 was $34.6 million, an increase of $1.0
million or 3.0% compared to $33.6 million in the first half of 1998. The
increases is attributable to a $3.5 million increase at OCC and a $.7 million
increase at ANS offset by a $3.2 million decrease at Corporate. The increase at
OCC reflects the decrease in operating expenses in 1999 compared to 1998. The
increase at ANS reflects increased revenues in 1999 compared to 1998. The
decrease at Corporate reflects the expense recognized for stock appreciation
rights and costs incurred in conjunction with the settlement of a shareholder
lawsuit (see Note 5 of Notes to Condensed Consolidated Financial Statements).
Minority interest reflects the losses attributable to the minority interest
in the Company's 57% owned subsidiary, OCC.
13
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Discontinued Operations
- -----------------------
The combined loss from discontinued operations totaled $9.0 million during
the first half of 1999 as compared to a loss of $12.2 million during the
comparable period in 1998. The improvement is primarily due to the operations of
the Colorado Avalanche and the lack of operating losses from Beacon partially
offset by the operations of the Denver Nuggets. Specifically, during the second
quarter of 1999, the Avalanche participated in three rounds of the NHL playoffs
as compared to one round in 1998. Offsetting the improvements were the
operations of the Denver Nuggets, which have been impacted by the NBA work
stoppage. Specifically, while revenues for the Nuggets decreased, operating
expenses increased due to a reserve taken on receivables due from NBA
Properties, the merchandising affiliate of the NBA, and an overall increase in
player salaries over the comparable period in 1998.
The $3.2 million gain from sale of discontinued operations, net of taxes,
during the first half of 1999 reflects the gain from the sale of 90% of the
Company's interest in Beacon.
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents increased by $24.7 million since December 31,
1998 to $69.3 million at June 30, 1999. The primary sources of cash during the
first half of 1999 were cash from continuing operating activities of $28.8
million, proceeds of $15.9 million from the sale of 90% of the Company's
interest in Beacon and borrowings under the OCC credit facility of $10.0
million. Cash was expended primarily for property and equipment at OCC,
specifically $40.6 million of capital expenditures, to support OCC's continued
growth. Included in cash and cash equivalents at June 30, 1999 is $24.0 million
of cash received by the Avalanche and the Nuggets during 1999 relating to ticket
sales and club seat deposits for both the Avalanche and the Nuggets for the
upcoming 1999/2000 playing seasons. Pursuant to the terms of the definitive
agreement to sell the Company's Sports related businesses (see Note 3 of
Notes to Condensed Consolidated Statements), these cash balances and other cash
receipts received prior to closing relating to the 1999/2000 playing seasons,
will either be used to fund operating expenses of the Sports related businesses
or will be acquired by The Strum Group.
Long-term debt of the Company at June 30, 1999 consists primarily of the
Company's Senior Secured Discount Notes (the "Senior Notes") totaling $151.0
million, and $173.0 million outstanding under OCC's credit facility. The Arena
Revenue Backed Notes of $139.8 million (the "Arena Notes") which were issued by
the Arena Company's beneficially owned trust are classified in the Company's
condensed consolidated balance sheet in the net assets of discontinued
operations. The Arena Notes are non-recourse to the Arena Company but the Arena
Company is obligated to the noteholders to construct and operate the Pepsi
Center. In connection with the pending sale of the Sports related businesses
(see Note 3 of Notes to Condensed Consolidated Financial Statements), the Arena
Note obligation will remain the obligation of an entity to be acquired by The
Sturm Group. Based on borrowings at June 30, 1999, the Company had access to
$50.0 million of long-term financing under the Ascent credit facility and OCC
had access to $27.0 million of long-term financing under its credit facility,
subject to certain covenant restrictions (see Note 6 of the Company's 1998
Consolidated Financial Statements.)
The Company's cash requirements through the remainder of 1999 are expected
to include (i) the continuing conversion and installation by OCC of on-demand
in-room video entertainment systems, (ii) funding the operating requirements of
Ascent and its subsidiaries (including the cash to be acquired by the Purchasers
as discussed above), and (iii) the payment of interest under the OCC credit
facility. The Company anticipates capital expenditures in connection with the
continued installation and conversion by OCC of on-demand service will be
approximately $40.0 to $50.0 million during the remainder of 1999. The Company
anticipates that OCC's funding for its operating requirements and capital
expenditures for the continued conversion and installation by OCC of on-demand
services will be funded primarily through cash flows from OCC's operations and
financed under the OCC credit facility.
Management of the Company believes that the available cash, cash flows from
operating activities, proceeds from the sale of the Company's Sports related
businesses and funds available under the OCC credit facility (see Note 6 of the
Company's 1998 Notes to Consolidated Financial Statements) will be sufficient
for the Company and its subsidiary to satisfy their growth and finance working
capital requirements during 1999. Assuming the
14
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08/12/999:26 AM
consummation of the sale of the Sports-related businesses, after payments to
Liberty Denver Arena, LLC for its interest in the Arena Company, appropriate
reserves for cash received to-date relating to Nuggets and Avalanche upcoming
1999/2000 playing seasons, the Company anticipates net cash proceeds of
approximately $260.0 million, subject to closing adjustments. Under the terms of
Ascent's outstanding Senior Notes, to the extent that within 1 year of the sale
of the Sports-related businesses, Ascent does not use the net cash proceeds for
certain permitted uses under the Senior Note indenture, Ascent will be required
to use all remaining proceeds to offer to repurchase the Senior Notes at 100% of
their accreted value. In addition, in connection with the sale, it is
anticipated that the Ascent credit facility will be terminated or renegotiated.
As a result of the sale of its Sports related businesses and the terms of the
Company's Senior Notes, the Company is exploring various alternatives as to the
use of the cash proceeds from the sale and, in turn, the Company's overall
business strategy. Management of the Company continues to focus its efforts on
the operations of OCC and OCC's strategies to convert hotel rooms acquired in
the acquisition of SpectraVision, Inc. to OCC's on-demand technology and the
successful upgrade and expansion of OCC's technology and service offerings. On
August 1, 1999, the Company completed previously disclosed negotiations and
entered into a three-year extension through the end of 2002 of the NBC- ANS
Service Agreement, under which Ascent provides satellite service, maintenance
and support of NBC's national television network. Management of the Company does
not anticipate any significant capital expenditures will be incurred in
connection with the extension agreement. Management continues to believe that at
the end of such extension period, it is likely that NBC will engage ANS to
complete a full upgrade of the NBC distribution network to digital technology.
No assurance can be provided that a full digital upgrade will occur or that ANS
will be engaged to complete the digital upgrade on terms as favorable to the
Company as the current agreement.
As previously discussed, on June 27, 1997, COMSAT completed the
Distribution of the Ascent common stock held by COMSAT as a tax-free dividend to
COMSAT's shareholders. The Distribution was intended, among other things, to
afford Ascent more flexibility in obtaining debt financing to meet its growing
needs. The Distribution Agreement between Ascent and COMSAT (see Note 2 of
Notes to Condensed Consolidated Financial Statements) terminated the Corporate
Agreement between Ascent and COMSAT which imposed restrictions on Ascent to
ensure compliance with certain capital structure and debt financing restrictions
imposed on COMSAT by the Federal Communications Commission. In addition,
pursuant to the Distribution Agreement, certain restrictions have been put in
place to protect the tax-free status of the Distribution.
INFORMATION SYSTEMS AND THE YEAR 2000
General - The Year 2000 issue is the result of certain computer programs
-------
and firmware having been developed using two digits rather than four digits to
define the application year, such that computer programs that are date sensitive
may recognize a date using "00" as the year 1900 rather than the year 2000.
This could result in a system failure or miscalculations causing disruptions of
operations, including, among other things, a temporary inability to process
transactions or engage in normal business activities for the Company and the
customers who rely on its products.
The Company and its subsidiary are actively engaged, but have not yet
completed, evaluating, correcting and testing all of their Year 2000 compliance
issues. Based on the current review and remediation, the primary Year 2000
compliance issue facing the Company is that OCC will be required to modify or
replace some of its internally developed information technology software
products. OCC utilizes embedded technology in all of its hotel systems design.
OCC's engineering department has completed the majority of its evaluation
process and is currently developing solutions to this and other Year 2000 issues
affecting OCC's hotel systems. In addition, both OCC and the Company's other
subsidiary have determined that they will be required to modify and/or replace
certain third-party software so that it will function properly with respect to
dates in the Year 2000 and thereafter. The Company presently believes that with
the proper modifications to its products and third-party software and the
replacement of non-compatible hardware, the Year 2000 issue will not pose
significant operation problems for the Company's subsidiary or its customers.
15
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The Company and its subsidiary are currently on schedule to complete all
Year 2000 issues by November, 1999. However, if such modifications and
replacements are not made, or completed timely, the Year 2000 issue could have a
material impact on the Company, its subsidiaries and their customers.
Costs - The total cost associated with required modification to become
-----
Year 2000 compliant is not expected to be material to the Company's consolidated
financial position. The total cost to address the Year 2000 issues from
continuing operations is estimated to be less than $1.0 million. The total
amount expended on Year 2000 compliance through June 30, 1999 from continuing
operations was approximately $470,000. The costs of Year 2000 compliance and the
date on which the Company plans to complete the Year 2000 modifications are
based on management's best estimates, which were derived utilizing numerous
assumptions, including third parties' Year 2000 readiness and other factors.
Risks - The Company has and will continue to have communications with its
-----
significant suppliers and customers to determine the extent to which the Company
may be vulnerable in the event that those parties fail to address their own Year
2000 issues. The Company has taken steps to monitor the progress made by those
parties, and intends to test critical systems interfaces, as the year 2000
approaches. Specifically, there is some unknown level of risk at OCC with
respect to its hotel customers and conditions that would make a hotel unable to
register guests which, in turn, could affect OCC's revenue. A large number of
OCC's systems are interfaced with the respective hotel's property management
system. If this interface fails, all movie charges would require manual
processing. Processes to perform manual processing are in place in all of OCC's
customers' hotels and are occasionally utilized at times when the property
management system interface is not functioning. This typically causes a
slightly higher number of lost charges, which could be material if applied to a
large number of hotel customers.
Contingency Plans - While the Company has not completed a formal
-----------------
contingency plan for the Year 2000 problem, it has evaluated several anticipated
scenarios for failures affecting its critical business systems, including third-
party hotel systems which could impact OCC as discussed above. Currently, it is
OCC's opinion that any of the potential scenarios can be managed by manual
means, although less efficient, while the necessary corrective actions are
taken. However, there can be no guarantee that the systems of third parties on
which the Company and its subsidiary rely will be corrected in a timely manner,
that manual processing of OCC's movie charges would be accomplished, or that the
failure to properly convert by another company would not have a material adverse
effect on the Company or its subsidiary.
Quantitative and Qualitative Disclosures About Market Risk
Interest Rate Risk. The Company's exposure to market risk for changes in
- ------------------
interest rates relates primarily to the Company's investment portfolio,
including restricted investments and long-term debt obligations. The Company
does not use derivative financial instruments in its investment portfolio. The
Company places its investments with high credit quality issuers and, by policy,
and debt restrictions limit the amount of credit exposure to any one issuer. As
stated in its policy, the Company is averse to principal loss and ensures the
safety and preservation of its invested funds by limiting default risk, market
risk, and reinvestment risk.
The Company mitigates default risk by investing in only the safest and
highest credit quality securities. The portfolio includes only marketable
securities with active secondary or resale markets to ensure portfolio
liquidity. At June 30, 1999, the weighted average interest rate on the
Company's cash and cash equivalent balance of $69.3 million was approximately
4.5% consisting of fixed rate short-term investments. In addition, the
Company's weighted average interest rate on its restricted cash investments held
in trust (part of discontinued operations, see Note 3 of Notes to the Condensed
Consolidated Financial Statements) at June 30, 1999 of $75.6 million was
approximately 5.1%. These restricted investments are primarily variable rate
money market instruments.
The Company has cash flow exposure due to rate changes for portions of its
debt obligations. Specifically, no cash flow exposure exists on the Company's
Arena Notes and Senior Notes as they represent fixed-rate obligations. (See Note
6 of the 1998 Consolidated Financial Statements). However, revolving loans
16
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08/12/999:26 AM
extended under the OCC credit facility (see Note 6 of the 1998 Consolidated
Financial Statements) generally bear an interest rate that is variable and based
on the London Interbank Offering Rate ("LIBOR") and on certain operating ratios
of the Company. At June 30, 1999, OCC had $173.0 million outstanding under the
OCC credit facility and the weighted average interest rate on the OCC credit
facility was 5.9%. Assuming no increase or decrease in the amount outstanding, a
hypothetical immediate 100 basis point increase (or decrease) in interest rates
would have increased (or decreased) the Company's annual interest expense and
cash outflow by $ .9 million.
Foreign Currency Risk. The Company, through OCC, transacts business in various
- -----------------------
foreign currencies, primarily in Canada, Asia and in certain European countries.
However, the Company believes the risks of foreign exchange rate fluctuations on
its present operations are not material to the Company's overall financial
condition. However, should the Company's international operations continue to
grow, the Company will consider using foreign currency contracts, swap
arrangements, or other financial instruments designed to limit exposure to
foreign exchange rate fluctuations.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
-----------------
For a discussion of additional litigation in which the Company is
involved -- See Note 5 of Notes to the Unaudited Condensed Consolidated
Financial Statements. The Company and its subsidiary are defendants and
may be potential defendants in lawsuits and claims arising in the
ordinary course of its business. While the outcomes of such claims,
lawsuits, or other proceedings cannot be predicted with certainty,
management expects that such liability, to the extent not provided for
by insurance or otherwise, will not have a material adverse effect on
the financial condition of the Company.
Item 2. Change in Securities
--------------------
None.
Item 3. Defaults Upon Senior Securities
-------------------------------
None.
Item 4. Submission of Matters to a Vote of Security Holders
---------------------------------------------------
None.
Item 5. Other Information
-----------------
None.
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
(A) Exhibit
-------
No. 10.1 Purchase and Sale Agreement among Ascent Entertainment
Group, Inc., Ascent Sports Holdings, Inc., Liberty Denver Arena,
LLC and Sturm Sports, LLC, Sturm Avalanche LLC, Sturm Nuggets
LLC, and Sturm Arena, LLC, dated as of July 27, 1999.
No. 10.2 NBC Satellite System Service Contract Amendment
No. 27.1 Financial Data Schedule
(B) Reports on Form 8-K:
--------------------
1.) The Registrant filed with the Commission on June 24, 1999 a
Form 8-K describing the following: (i) The Company had entered
into a definitive agreement for the settlement of three lawsuits
filed by stockholders in Delaware Chancery Court, (ii) as part
of the settlement, that the
17
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08/12/999:26 AM
Company had entered into a new purchase and sale agreement with
entities controlled by William and Nancy Laurie and provides
pursuant to which the Lauries might participate in an auction of
the Sports related assets, (iii) the appointment of Mr. Peter W.
May to the Board of the Company as part of the settlement and
(iv) that Charlie Lyons, Chairman and CEO of the Company, had
taken a leave of absence from his positions and that Charles
Neinas, a Company director, had agreed to serve as acting
Chairman and CEO of Ascent.
2.) The Registrant filed with the Commission on May 4, 1999 a
Form 8-K describing its issuance of two press releases reporting
the Company's announcement that (i) it has entered into a
definitive agreement to sell its Sports-related businesses,
including the Denver Nuggets, Colorado Avalanche and the team's
future home, the Pepsi Center and, (ii) the Company released its
1999 first quarter financial results, which included additional
information on the Company's sale of its Sports-related
businesses.
18
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Ascent Entertainment Group, Inc.
- --------------------------------
By: /s/ David A. Holden
-------------------
David A. Holden
Vice President of Finance, Controller
(Principal Accounting Officer)
Date: August 13, 1999
19
<PAGE>
PURCHASE AND SALE AGREEMENT
among
ASCENT ENTERTAINMENT GROUP, INC.,
ASCENT SPORTS HOLDINGS, INC.,
LIBERTY DENVER ARENA LLC
and
STURM SPORTS, LLC,
STURM AVALANCHE, LLC,
STURM NUGGETS, LLC,
STURM ARENA, LLC
Dated as of July 27, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. DEFINITIONS.................................................... 3
1.1 Definitions.......................................................... 3
ARTICLE II. PURCHASE AND SALE.............................................. 18
2.1 AEG Ownership Interests.............................................. 18
2.2 HC Ownership Interests............................................... 18
2.3 LLC-II Membership Interest........................................... 18
2.4 Ascent Arena Company Membership Interests............................ 18
2.5 Purchase Price....................................................... 18
2.6 Closing Period Payment............................................... 19
ARTICLE III. COVENANTS OF SELLER.......................................... 19
3.1 Compliance with Contracts and Applicable Law......................... 19
3.2 Conduct of Business in the Ordinary Course........................... 20
3.3 Preservation of Business............................................. 22
3.4 Maintenance of Insurance Coverage and Certain Policies............... 22
3.5 Current Information.................................................. 23
3.6 Post-Closing Funds................................................... 23
3.7 Preservation of LDA's Ascent Arena Company Membership Interest....... 23
ARTICLE IV. CLOSING........................................................ 23
4.1 Closing.............................................................. 23
4.2 Closing Deliveries by AEG............................................ 24
4.3 Closing Deliveries by Purchasers..................................... 25
4.4 Closing Deliveries by LDA............................................ 25
4.5 Closing Deliveries by HC............................................. 25
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF SELLER....................... 26
5.1 General Corporate and Partnership Matters............................ 26
5.2 Authorized Capital; Title to Shares and Membership Interests......... 28
5.3 Financial Statements and Undisclosed Liabilities..................... 33
5.4 Litigation........................................................... 34
5.5 Employees............................................................ 34
5.6 Employee Benefits.................................................... 35
5.7 Labor and Employment Matters......................................... 36
5.8 Intellectual Property................................................ 37
5.9 Environmental Compliance............................................. 37
5.10 Insurance............................................................ 38
5.11 Tax Matters.......................................................... 39
5.12 Sports Entities...................................................... 45
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
5.13 Ascent Arena Entities........................................... 48
5.14 Pepsi Center.................................................... 48
5.15 Mountain Mobile................................................. 51
5.16 Development Property............................................ 51
5.17 Advisory Fees................................................... 52
5.18 Operations Since Schedules Effective Date....................... 52
5.19 No Other Representations or Warranties.......................... 52
ARTICLE V-A. REPRESENTATIONS AND WARRANTIES OF LDA................... 52
5A.1 General Limited Liability Company Matters....................... 52
5A.2 Title to LDA's Ascent Arena Company Membership Interest......... 54
5A.3 Advisory Fees................................................... 54
5A.4 No Other Representations or Warranties.......................... 54
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF PURCHASERS.............. 54
6.1 Existence and Power............................................. 54
6.2 Governmental Authorization...................................... 55
6.3 Non-Contravention............................................... 55
6.4 Securities Matters.............................................. 55
6.5 Advisory Fees................................................... 56
6.6 Litigation...................................................... 56
6.7 Beneficial Ownership............................................ 56
6.8 No Other Representations or Warranties.......................... 57
6.9 Financial Matters............................................... 57
ARTICLE VI-A. REPRESENTATIONS AND WARRANTIES OF STURM ARENA.......... 57
6A.1 Organization and Standing....................................... 57
6A.2 Authorization................................................... 57
6A.3 Binding Effect.................................................. 57
6A.4 Governmental Authorization...................................... 58
6A.5 Non-Contravention............................................... 58
6A.6 Advisory Fees................................................... 58
6A.7 No Other Representations or Warranties.......................... 58
6A.8 Financial Matters............................................... 58
6A.9 Securities Matters.............................................. 58
6A.10 Beneficial Ownership.......................................... 59
ARTICLE VII. CONDITIONS TO CLOSING................................... 60
7.1 Conditions to Obligations of Purchasers......................... 60
7.2 Conditions to Obligations of Seller............................. 62
7.3 Conditions to Obligation of LDA................................. 64
ARTICLE VIII. INDEMNIFICATION AND DISPUTE RESOLUTION................. 64
8.1 Indemnification of Purchasers by Seller......................... 64
8.2 Indemnification of Seller....................................... 65
8.3 Indemnification by LDA of Sturm Arena........................... 65
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
8.4 Indemnification of LDA...................................... 66
8.5 Procedures for Third-Party Claims........................... 66
8.6 Procedures for Non-Third Party Claims....................... 67
8.7 Dispute Resolution.......................................... 67
ARTICLE IX. TERMINATION........................................... 68
9.1 Mutual Agreement............................................ 68
9.2 Default by Seller........................................... 68
9.3 Default by Purchasers....................................... 68
9.4 Failure to Close............................................ 68
9.5 Effect of Termination....................................... 68
ARTICLE X. OTHER AGREEMENTS...................................... 69
10.1 Further Assurances.......................................... 69
10.2 Certain Filings............................................. 69
10.3 Administration of Accounts.................................. 69
10.4 Guarantee of Performance.................................... 69
10.5 Taxes....................................................... 69
10.6 Employee Benefit Plans...................................... 75
10.7 Publicity................................................... 76
10.8 Costs and Expenses.......................................... 76
10.9 Conditions to Closing....................................... 76
ARTICLE XI. MISCELLANEOUS......................................... 77
11.1 Notices..................................................... 77
11.2 Amendments; No Waivers...................................... 78
11.3 Successors and Assigns...................................... 79
11.4 Governing Law............................................... 79
11.5 Counterparts; Effectiveness................................. 79
11.6 Entire Agreement............................................ 79
11.7 Captions.................................................... 79
11.8 Severability................................................ 79
11.9 Construction................................................ 79
11.10 Cumulative Remedies....................................... 80
11.11 Survival of Representations, Etc.......................... 80
11.12 No Third Party Beneficiaries.............................. 80
11.13 Revised Deal Structure.................................... 80
</TABLE>
EXHIBIT "A-1" Arena Land Legal Description
EXHIBIT "A-2" Development Property Legal Description
EXHIBIT "B" Permitted Liens
EXHIBIT "C" Construction Budget
EXHIBIT "D" Construction Contractor Critical Path Report
EXHIBIT "E" Form of Opinion
SCHEDULE 1.1 Pepsi Center Plans and Specifications
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SCHEDULE 3.2(a)(vii) Payable Indebtedness
SCHEDULE 3.2(b)(viii) Prepayable Arena Entities' and Development Property
Indebtedness
SCHEDULE 3.4 Maintenance of Insurance Coverage and Certain Policies
SCHEDULE 3.6 Post Closing Funds
SCHEDULE 5.1(f) Subsidiaries/Advances/Investments
SCHEDULE 5.2(c)(iii) Mountain Mobile Membership Interest
SCHEDULE 5.2(h) Restrictions
SCHEDULE 5.3(a) Financial Statements
SCHEDULE 5.3(b) Undisclosed Liabilities
SCHEDULE 5.4 Litigation
SCHEDULE 5.5(a) Sports Entities' Employees
SCHEDULE 5.5(b) Arena Entities' Employees
SCHEDULE 5.6(a)(i) Employee Plans
SCHEDULE 5.6(a)(iv) Employee Plan Accelerated Vesting
SCHEDULE 5.6(d) Multi-employer Plan Contingent Liability
SCHEDULE 5.7(a) Labor and Employment Matters
SCHEDULE 5.8(a) Intellectual Property
SCHEDULE 5.10(a) Insurance Policies
SCHEDULE 5.10(b) Ascent Arena Entities Insurance Policies
SCHEDULE 5.11(a)(iv) Tax Matters - Affiliated Groups
SCHEDULE 5.11(a)(v) Tax Matters - List of Consolidated, Combined or Unitary
State Income Tax Filings
SCHEDULE 5.11(a)(vi) Tax Matters - Copies of Returns/Audits
SCHEDULE 5.11(a)(viii) Tax Matters - General Disclosures
SCHEDULE 5.11(a)(ix) Tax Matters - Corporate Disclosures
SCHEDULE 5.11(a)(x) Tax Matters - Additional Information
SCHEDULE 5.11(b)(iv) Tax Matters, Partnership Returns/Audits
SCHEDULE 5.11(b)(vii) Tax Matters - General Disclosures
SCHEDULE 5.11(b)(viii) Tax Matters - Partnership Entities
SCHEDULE 5.11(b)(ix) Tax Matters - Partnership Elections/Asset Basis
SCHEDULE 5.12(a) Sports Entities - Absence of Certain Changes
SCHEDULE 5.12(b)(i) Sports Entities' Contracts
SCHEDULE 5.12(e) Affiliate Contracts
SCHEDULE 5.12(f)(i) Sports Entities' Permits
SCHEDULE 5.12(f)(ii) Sports Entities' Required Governmental/Contractual
Approvals/Consents
SCHEDULE 5.12(g) Compliance with Laws
SCHEDULE 5.13(d) Advance Booking Contracts
SCHEDULE 5.13(e) Ascent Arena Entity Contracts
SCHEDULE 5.14(b)(iii) Arena Contracts
SCHEDULE 5.14(b)(v) Sale and Servicing Delegation of Duties
SCHEDULE 5.14(c) Arena Accounts
SCHEDULE 5.15(c) Mountain Mobile Compliance with Laws
SCHEDULE 6.7(a) Beneficial Ownership
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PURCHASE AND SALE AGREEMENT
---------------------------
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of July
27, 1999 (the "Effective Date"), among ASCENT ENTERTAINMENT GROUP, INC., a
Delaware corporation ("AEG"), ASCENT SPORTS HOLDINGS, INC., a Delaware
corporation ("HC" and, together with AEG, "Seller"), LIBERTY DENVER ARENA LLC
("LDA"), a Delaware limited liability company, STURM SPORTS, LLC, a Delaware
limited liability company ("Sturm Sports"), STURM AVALANCHE, LLC, a Delaware
limited liability company ("Sturm Avalanche"), STURM NUGGETS, LLC, a Delaware
limited liability company ("Sturm Nuggets"), and STURM ARENA, LLC, a Delaware
limited liability company (`Sturm Arena") (together with Sturm Sports, Sturm
Avalanche and Sturm Nuggets, "Purchasers" and each individually, a "Purchaser").
RECITALS
A. Immediately prior to the execution of this Agreement, that
certain Purchase and Sale Agreement, dated as of June 22, 1999, among Seller,
LDA, EPL, LLC and EPL II, LLC has been terminated pursuant to Section 9.5
thereof.
B. AEG owns 100% of the capital stock of HC, and HC will own as of
the Closing (as herein defined) 100% of the membership interests of each of LLC-
I and LLC-II.
C. AEG and HC desire to sell to Sturm Arena, and Sturm Arena desires
to purchase from HC, 100% of the membership interests of LLC-II (the "LLC-II
Membership Interest"), all on the terms and conditions set forth in this
Agreement.
D. AEG, LDA and Ascent Development Corp. own, in the aggregate, 100%
of the membership interests in Ascent Arena Company, LLC, a Colorado limited
liability company ("Ascent Arena Company") (collectively, "Ascent Arena Company
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").
E. AEG desires to sell to Sturm Arena, and Sturm Arena desires to
purchase from AEG, its Ascent Arena Company Membership Interest, all on the
terms and conditions set forth in this Agreement. LDA desires to sell to Sturm
Arena, and Sturm Arena desires to purchase from LDA, its Ascent Arena Company
Membership Interest, all on the terms and conditions set forth in this
Agreement.
<PAGE>
F. AEG owns, in the aggregate: (i) 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 (ii) a
50% membership interest (the "AEG Avalanche Membership Interest") in Colorado
Avalanche, LLC, a Colorado limited liability company ("Avalanche LLC") and will
own, in the aggregate, indirectly through HC, 100% of the membership interests
of LLC-I (the "LLC-I Membership Interest").
G. LLC-I will own, as of the Closing, in the aggregate, a 1.8%
general partnership interest in Nuggets LP ("LLC-I Nuggets LP Partnership
Interest"), and a 50% membership interest in Avalanche LLC (the "LLC-I Avalanche
Membership Interest").
H. 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 "A-1" attached hereto (the "Arena Land"), 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").
I. 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").
J. Prior to the Closing, AEG will transfer to HC a 97.2% limited
partnership interest in Nuggets LP and a 49% membership interest in Avalanche
LLC.
K. AEG desires to sell, on the terms and conditions set forth in
this Agreement, to Sturm Sports, and Sturm Sports desires to purchase from AEG,
(i) the portion of the AEG Nuggets LP Partnership Interest that AEG does not
transfer to HC prior to the Closing and (ii) the portion of the AEG Avalanche
Membership Interest that AEG does not transfer to HC prior to the Closing.
L. AEG and HC desire to sell, on the terms and conditions set forth
in this Agreement, to Sturm Avalanche, and Sturm Avalanche desires to purchase
from HC, 100% of the LLC-I Membership Interest.
M. AEG and HC desire to sell, on the terms and conditions set forth
in this Agreement, to Sturm Nuggets, and Sturm Nuggets desires to purchase from
HC, the portion of the AEG Nuggets LP Partnership Interest that AEG transfers to
HC prior to the Closing.
N. AEG and HC desire to sell, on the terms and conditions set forth
in this Agreement, to Sturm Avalanche, and Sturm Avalanche desires to purchase
from HC, the portion of the AEG Avalanche Membership Interest that AEG transfers
to HC prior to the Closing.
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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 Section 5.2(a)(i).
"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 F.
"AEG Nuggets LP Partnership Interest" has the meaning set forth in
Recital F.
"AEG Purchase Price" has the meaning set forth in Section 2.5.
"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.
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<PAGE>
"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).
"Allen & Company" means Allen & Company Incorporated.
"Architect" means Helmuth, 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 1997 Denver Arena 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 Ogden 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 H.
"Arena Operating Company" means Ascent Arena Operating Company, LLC, a
Colorado limited liability company.
"Ascent Arena Company" has the meaning set forth in Recital D.
"Ascent Arena Company Membership Interests" has the meaning set forth
in Recital D.
"Ascent Arena Entities" means the following entities, collectively,
Ascent Arena Company, LLC-II, Arena Operating Company, and Denver Arena Trust.
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"Ascent Development Corp." means Ascent Arena and Development
Corporation, a Delaware corporation.
"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 Operating Agreement" means the operating agreement entered
into on November 14, 1997, among the then members of Ascent Arena Company.
"Ascent Sports" means Ascent Sports, Inc., a Delaware corporation.
"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 I.
"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 F.
"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" has 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 LLC-I.
"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.
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"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.
"Closing Period Payment Commencement Date" has the meaning set forth
in Section 2.6.
"Closing Period Payment" has the meaning set forth in Section 2.6.
"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. Mortenson 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.
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<PAGE>
"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 Entities" (individually, a "Corporate Entity") means Ascent
Development Corp. and Ascent Sports.
"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" has the meaning set forth in Section 9.2.
"DURA" means the Denver Urban Renewal Authority.
"Effective Date" has the meaning set forth in the introductory
paragraph of this Agreement.
"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
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<PAGE>
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;
-8-
<PAGE>
(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
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respect to liability arising after such period for which any of the Purchased
Entities could be liable under the Code or ERISA.
"ERISA Plan" of a Person means an "employee pension benefit plan"
(within the meaning of Section 3(2) of ERISA), other than a Multiemployer Plan,
that is covered by Title IV of ERISA or subject to the minimum funding standards
of Section 412 of the Code or Section 302 of ERISA that is maintained by the
Person, to which the Person contributes or has an obligation to contribute or
with respect to which the Person is an "employer" (within the meaning of Section
3(5) of ERISA).
"Financial Advisors" means Allen & Company and Wasserstein Perella.
"Financial Statements" has the meaning set forth in Section 5.3(a).
"GAAP" means generally accepted accounting principles applied on a
consistent basis.
"Governmental Authority" means any foreign, domestic, federal,
territorial, state or local governmental authority, quasi-governmental
authority, instrumentality, court, government or self-regulatory organization,
commission, tribunal or organization or any regulatory, administrative or other
agency, or any political or other subdivision, department or branch of any of
the foregoing.
"Ground Lease" means the Ground Lease, dated as of July 29, 1998,
between Nuggets LP, as lessor, and Ascent Arena Company, as lessee, with respect
to the Arena Land.
"Hazardous Substance" means any chemical substance: (i) the presence
of which requires investigation or remediation under any Applicable Law; or (ii)
that is defined as a "hazardous waste," "hazardous substance," "hazardous
material", "solid waste" or similarly designated substance under any Applicable
Law; or (iii) that contains gasoline, diesel fuel or other petroleum
hydrocarbons, polychlorinated biphenols (PCBs) or asbestos.
"HC" has the meaning set forth in the introductory paragraph of this
Agreement.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Income Taxes" means: (A) all Taxes imposed upon or measured by
income, profits or gross receipts; and (B) any interest, penalties or additions
to tax with respect to the items in clause (A).
"Indemnified Party" has the meaning set forth in Section 8.5.
"Indemnifying Party" has the meaning set forth in Section 8.5.
"Indenture" means the Indenture, dated as of July 29, 1998, by and
between the Denver Arena Trust, as issuer, and the Indenture Trustee.
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"Indenture Trustee" means The Bank of New York, as indenture trustee
of the Indenture.
"Intellectual Property" means any and all (a) trademarks, service
marks, trade names, logos, and registrations and applications for registration
thereof; (b) works in which copyright may be claimed and for which registrations
or applications for registration thereof have been made; (c) patents, patent
applications, and related technical information; and (d) intellectual property
rights substantially similar to any of the foregoing; that the Purchased
Entities own or have a right to pursuant to license, sublicense, agreement, or
written permission or otherwise.
"IRS" means the United States Internal Revenue Service or any
Governmental Body succeeding to any or all of its functions.
"Key Employees" (individually, a "Key Employee") means any employee
identified in Schedules 5.5(a) and 5.5(b) attached hereto whose annual
compensation exceeds $100,000.
"Knowledge" of Seller shall refer to whether any of Seller's executive
officers, including, but not limited to, James A. Cronin, III, David A. Holden,
Arthur M. Aaron and David Ehrlich, had (a) actual knowledge or, (b) in the
ordinary course of performing their duties, should have had knowledge of the
matters involved; "Actual Knowledge" shall mean Knowledge without regard to
clause (b).
"LDA" has the meaning set forth in the introductory paragraph of this
Agreement.
"LDA Ascent Arena Company Membership Interest" has the meaning set
forth in Section 2.4
"LDA Basket" has the meaning set forth in Section 8.3(b).
"LDA Indemnitee" has the meaning set forth in Section 8.4.
"LDA Purchase Price" has the meaning set forth in Section 2.5.
"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).
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"Lien" means, with respect to any asset, any mortgage, title defect,
lien, pledge, charge, security interest, hypothecation, restriction, or
encumbrance of any kind in respect of such asset (other than Permitted Liens).
"LLC-I" means a Delaware limited liability company to be formed by HC
prior to the Closing.
"LLC-I Avalanche Membership Interest" has the meaning set forth in
Recital G.
"LLC-I Membership Interest" has the meaning set forth in Recital F.
"LLC-I Nuggets LP Partnership Interest" has the meaning set forth in
Recital G.
"LLC-II" means a Delaware limited liability company to be formed by HC
prior to the Closing.
"LLC-II Membership Interest" has the meaning set forth in Recital C.
"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
Schedules 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 H.
"Mountain Mobile Membership Interest" has the meaning set forth in
Recital H.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 3(37) of ERISA.
"NBA" has the meaning set forth in Recital H.
"NBA Member Teams" means the professional basketball teams holding NBA
franchises.
"NHL" has the meaning set forth in Recital I.
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"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 H.
"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 F.
"Ogden Concession Agreement" means the Management Agreement, dated as
of April 3, 1998, between Ascent Arena Company and Ogden 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).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Pepsi Agreement" means the Agreement for Naming Rights, Pouring
Rights, Sponsorship and Promotion, dated as of June 2, 1998, by and between
Pepsi-Cola Company, a division of Pepsico, Inc., and Ascent Arena Company, as
amended and restated July 29, 1998.
"Pepsi Center" has the meaning set forth in Recital D.
"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.
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"Person" means an individual, corporation, limited liability company,
partnership, association, trust, estate or other entity or organization,
including a Governmental Authority.
"Plans and Specifications" means the construction plans and
specifications for construction of the Pepsi Center, prepared by the Architect,
as listed on Schedule 1.1 attached hereto.
"Post-Closing Funds" has the meaning set forth in Section 3.6.
"Post-Closing Period" means any period that begins after the Closing
Date and, with respect to any period that begins before the Closing Date and
ends after the Closing Date, the portion of that period beginning after the
Closing Date.
"Pre-Closing Period" means any period that ends on or prior to the
Closing Date and, with respect to any period that begins before the Closing Date
and ends after the Closing Date, the portion of that period ending on the
Closing Date.
"Principals" (individually, a "Principal") has the meaning set forth
in Section 6.7(a).
"Proceedings" has the meaning set forth in Section 5.4(a).
"Purchase Price" has the meaning set forth in Section 2.5.
"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.
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"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.
"Schedules Effective Date" means July 15, 1999.
"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
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Trust, the Indenture Trustee and Ascent Arena Company; (vii) the Ascent
Entertainment Assignment; (viii) the Estoppel Agreement dated as of July 29,
1998 among the City, the Denver Arena Trust and the Indenture Trustee with
respect to the Arena Agreement; and (ix) the Estoppel Agreement dated as of July
29, 1998, among DURA, the Denver Arena Trust and the Indenture Trustee with
respect to the Redevelopment Agreement.
"Seller" has the meaning set forth in the introductory paragraph of
this Agreement.
"Seller Ascent Arena Company Membership Interest" means all of the
Ascent Arena Company Membership Interests other than the LDA Ascent Arena
Company Membership Interest.
"Seller Indemnitee" has the meaning set forth in Section 8.2.
"Sports Entities" (individually, a "Sports Entity") means Nuggets LP,
Avalanche LLC and LLC-I.
"Sports Entities Contracts" means all Nuggets Contracts, Avalanche
Contracts and any other Contracts, whether written or oral, to which any Sports
Entity is a party or by which it is bound as of the Schedules 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).
"Sturm Arena" has the meaning set forth in the introductory paragraph
of this Agreement.
"Sturm Arena Indemnitee" has the meaning set forth in Section 8.3.
"Sturm Avalanche" has the meaning set forth in the introductory
paragraph of this Agreement.
"Sturm Nuggets" has the meaning set forth in the introductory
paragraph of this Agreement.
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"Sturm Sports" has the meaning set forth in the introductory paragraph
of this Agreement.
"Subject Entities" (individually, a "Subject Entity") means Seller,
Ascent Arena Entities, Sports Entities, and, except as limited in accordance
with Section 11.13, the Corporate Entities.
"Subsidiary(ies)" means, with respect to any Person, any corporation
or other entity as to which more than 50% of the outstanding stock having
ordinary voting rights or power (and excluding stock having voting rights only
upon the occurrence of a contingency unless and until such contingency occurs
and such rights may be exercised) is owned or controlled, directly or
indirectly, by such Person and/or by one or more of such Person's Subsidiaries.
"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.
"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.
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"User Agreements" means, collectively (i) the agreement between
Avalanche LLC and Ascent Arena Company concerning the use of the Pepsi Center by
the Colorado Avalanche, and (ii) the agreement between the Nuggets LP and Ascent
Arena Company concerning the use of the Pepsi Center by the Denver Nuggets.
"VCUP" means the Application for a Voluntary Cleanup Plan submitted to
the Colorado Department of Public Health and Environment, dated March 10, 1995,
and all correspondence, supplements, addenda, and extensions thereof.
"Wasserstein Perella" means Wasserstein Perella & Co., Inc.
ARTICLE II.
PURCHASE AND SALE
2.1 AEG Ownership Interests. At Closing, subject to the terms and
conditions of this Agreement, AEG shall sell, transfer, convey and deliver to
(i) Sturm Sports, and Sturm Sports shall purchase from AEG, free and clear of
all Liens, the portion of the AEG Avalanche Membership Interest not transferred
to HC prior to Closing, and (ii) Sturm Nuggets, and Sturm Nuggets shall purchase
from AEG, free and clear of all Liens, the portion of the AEG Nuggets LP
Partnership Interest not transferred to HC prior to Closing.
2.2 HC Ownership Interests. At Closing, subject to the terms and
conditions of this Agreement, HC shall sell, transfer, convey and deliver to (i)
Sturm Avalanche, and Sturm Avalanche shall purchase from HC, free and clear of
all Liens, the LLC-I Membership Interest and the portion of the AEG Avalanche
Membership Interest that AEG transfers to HC prior to Closing, and (ii) Sturm
Nuggets, and Sturm Nuggets shall purchase from HC, free and clear of all Liens,
the portion of the AEG Nuggets LP Partnership Interest that AEG transfers to HC
prior to Closing.
2.3 LLC-II Membership Interest. At Closing, subject to the terms and
conditions of this Agreement, HC shall sell, transfer, convey and deliver to
Sturm Arena, and Sturm Arena shall purchase from HC, free and clear of all
Liens, the LLC-II Membership Interest.
2.4 Ascent Arena Company Membership Interests. At Closing, subject to
the terms and conditions of this Agreement, AEG shall sell, transfer, convey and
deliver to Sturm Arena, and Sturm Arena shall purchase from AEG, free and clear
of all Liens, AEG's 1% Ascent Arena Company Membership Interest, and LDA shall
sell, transfer, convey and deliver to Sturm Arena, and Sturm Arena shall
purchase from LDA, free and clear of all Liens, LDA's 6.5% Ascent Arena Company
Membership Interest (the "LDA Ascent Arena Company Membership Interest").
2.5 Purchase Price. The aggregate purchase price for the Purchased
Entities shall be $321,000,000 (the "Purchase Price") plus the Closing Period
Payment, if any. The
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portion of the Purchase Price for the Purchased Entities (excluding the LDA
Ascent Arena Company Membership Interest) shall be the Purchase Price minus the
LDA Purchase Price (the "AEG Purchase Price"), paid in cash by wire transfer of
immediately available funds to an account designated by Seller. The purchase
price for the LDA Ascent Arena Company Membership Interest shall be $16.5
million, or such higher amount as Seller and LDA have agreed or may agree in
writing (the "LDA Purchase Price"), paid in cash by wire transfer of immediately
available funds to an account designated by LDA. In the event that Seller and
LDA agree to such a higher amount, Seller shall notify Purchasers of such amount
at least two Business Days prior to the Closing. Any Closing Period Payment
shall be apportioned 93.478% to Seller and 6.522% to LDA.
2.6 Closing Period Payment. If the Closing shall not occur on or
before August 12, 1999 (The "Closing Period Payment Commencement Date") as a
result of the failure to satisfy one or more of the conditions to Closing
contained in Sections 7.2(a), (b), and (d) through (k) and such failure is not
the result of any action or failure to act on the part of the Seller, then, in
addition to the Purchase Price, Purchasers shall pay to Seller and LDA (in the
proportions set forth in Section 2.5) an amount equal to simple interest on the
Purchase Price at the rate of 6.0% per annum for the time period from and
including the Closing Period Payment Commencement Date to but excluding the
Closing Date (based on the ratio of the actual number of days elapsed to 365)
(the "Closing Period Payment"); provided, however, that under no circumstances
shall Purchasers be required to make the Closing Period Payment in respect of
any time after the Drop Dead Date.
ARTICLE III.
COVENANTS OF SELLER
3.1 Compliance with Contracts and Applicable Law.
(a) Nuggets. From the Effective Date through the Closing Date, AEG,
HC, LLC-I and Nuggets LP shall comply in all material respects with all
conditions and requirements set forth in (i) all applicable Sports Entities
Contracts, (ii) the Organizational Documents applicable to such entities, (iii)
any and all applicable NBA agreements and documents or other material Contracts
of such entities, (iv) the VCUP, (v) Applicable Law, and (vi) this Agreement.
(b) Avalanche. From the Effective Date through the Closing Date, AEG,
HC, LLC-I and Avalanche LLC shall comply in all material respects with all
conditions and requirements set forth in (i) all applicable Sports Entities
Contracts, (ii) the Organizational Documents applicable to such entities, (iii)
any and all applicable NHL agreements and documents or other material Contracts
of such entities, (iv) the VCUP, (v) Applicable Law, and (vi) this Agreement.
(c) Ascent Arena Entities. From the Effective Date through the
Closing Date, AEG, HC and the Ascent Arena Entities shall comply in all material
respects, or cause such compliance, with all conditions and requirements set
forth in (i) the Arena Contracts, (ii) the
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Licenses, (iii) the Organizational Documents of such entities, (iv) the VCUP,
(v) Applicable Laws, and (vi) this Agreement.
3.2 Conduct of Business in the Ordinary Course.
(a) Sports Entities. At all times prior to the Closing, neither
Seller nor the Sports Entities shall take any action or fail to take any action
if such action or inaction, as the case may be, would be outside the ordinary
course of business and inconsistent with past practices. Notwithstanding the
foregoing, "ordinary course" shall not include any of the following without the
prior written consent of the Purchasers in each instance:
(i) create, permit or suffer to exist any Lien on any of the
Assets of the Sports Entities, other than Liens created in the ordinary course
of business consistent with past practices pursuant to sponsorship agreements or
agreements related to the operation of the Avalanche and Nuggets and except
pursuant to the Arena Contracts after consultation with the Designated
Representative (as defined below);
(ii) sell, transfer or convey, or enter into any Contract with
a value of more than $100,000 which grants any Person any right to use, access
(other than on a short-term basis), lease or acquire any of, the material Assets
of the Sports Entities, except pursuant to the Arena Contracts after
consultation with the Designated Representative;
(iii) amend any Sports Entities Contract, except as expressly
required by this Agreement;
(iv) amend any Organizational Document of such entities;
(v) make a loan (other than for reasonable travel expenses in
the ordinary course of business) to any Person, including, without limitation,
an Affiliate;
(vi) incur any indebtedness other than trade payables incurred
in the ordinary course of business pursuant to Contracts now in effect or
entered into in accordance with this Section 3.2(a);
(vii) except for the indebtedness listed on Schedule
3.2(a)(vii) attached hereto, prepay any indebtedness to any Person other than a
Purchased Entity, including, without limitation, any indebtedness to Seller;
(viii) enter into any Contract with any Affiliate or enter into
or terminate any Contract with obligations on the part of any Sports Entity in
excess of $100,000;
(ix) amend any Employee Plan to increase benefits, or create
any new Employee Plan other than as required by Applicable Law or previously
existing contractual commitment; or
(x) make any material change in their accounting principles,
methods or practices or in the manner they keep their books and records.
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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.
(b) Ascent Arena Entities and the Development Property. At all times
prior to Closing, neither Seller nor any Ascent Arena Entity shall take any
action or fail to take any action if such action or inaction, as the case may
be, would be outside the ordinary course of business. Notwithstanding the
foregoing, "ordinary course" shall not include any of the following without the
prior written consent of the Purchasers in each instance:
(i) create, permit or suffer to exist any Lien on the Pepsi
Center, the Development Property, or the Assets of any Ascent Arena Entity,
except the City Lien, the Trustee's Lien, Liens created in the ordinary course
of business consistent with past practices related to sponsorship agreements and
other contracts disclosed on Schedule 5.13(e) and except pursuant to the Arena
Contracts after consultation with the Designated Representative;
(ii) sell, transfer or convey, or enter into any Contract with
a value in excess of $100,000 which grants any Person any right to use, access
(other than on a short-term basis), lease or acquire the Pepsi Center or the
Development Property, any interest in or any portion thereof, or any of the
material Assets of any Ascent Arena Entity, except pursuant to the Arena
Contracts after consultation with the Designated Representative;
(iii) amend any Arena Contract or take any action that would or
could reasonably result in an increase in the cost of building the Pepsi Center
in excess of $100,000;
(iv) amend any Organizational Document of any Ascent Arena
Entity (except as may be necessary to comply with Section 3.2(b));
(v) make a loan (other than for reasonable travel expenses in
the ordinary course of business) to any Person, including, without limitation,
an Affiliate;
(vi) incur any indebtedness other than trade payables incurred
in the ordinary course of business pursuant to Contracts now in effect or
pursuant to the Arena Contracts or entered into in accordance with this Section
3.2(b);
(vii) make any distribution, dividend or other payment to its
members or shareholders;
(viii) except for the indebtedness listed on Schedule
3.2(b)(viii) attached hereto, prepay any indebtedness to any Person other than
an Ascent Arena Entity, including, without limitation, any indebtedness to
Seller;
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(ix) enter into any Contract with any Affiliate or enter into
or terminate any Contract with obligations on the part of any Ascent Arena
Entity in excess of $100,000;
(x) amend any Employee Plan to increase benefits, or create
any new Employee Plan, other than as required by Applicable Law or previously
existing contractual commitment;
(xi) solicit from any Ascent Arena Entity, directly or
indirectly, for Seller or any other Person, any Key Employee; or
(xii) make any material change in their accounting principles,
methods or practices or in the manner they keep their books and records.
Purchaser shall not unreasonably delay its consent to or rejection of
any of the actions described in this Section 3.2(b). To the extent that Seller
takes or fails to take action on any matter described in this Section 3.2(b) in
accordance with instructions given to it by the Designated Representative (or
deemed to have been given in accordance with paragraph (c) below), Purchasers
shall be deemed to have waived in respect of such matter any right it may
otherwise have to claim a breach of a representation or to assert a claim for
indemnity hereunder.
(c) Notice. Seller shall promptly notify Purchasers, in writing, of
the occurrence or existence of any event or circumstance of which Seller is
aware and which would violate this Section 3.2. Purchasers shall appoint a
person(s) to serve as primary contact for Seller in conjunction with Sections
3.2 and 3.5 (the "Designated Representative"). For purposes of Seller seeking
required approvals under this Section 3.2, Seller shall deliver written
notification (in the manner provided in Section 11.1) to the Designated
Representative as to the matter for which Seller is seeking approval. The
Designated Representative may accept or deny approval within 48 hours of such
notification or indicate that it shall accede to management's judgment. If the
Designated Representative does not deliver such written notification within the
48 hour period, such approval shall be deemed to have been given.
3.3 Preservation of Business. At all times prior to the Closing,
Seller shall cause the Purchased Entities to use their respective reasonable
best efforts to preserve intact the current Assets, business organizations and
relationships, and goodwill of the Purchased Entities, and to keep available the
services of the present officers, employees, players, agents and other personnel
of the Purchased Entities, excluding officers of Seller who are not Key
Employees, in each case to the extent commercially reasonable.
3.4 Maintenance of Insurance Coverage and Certain Policies. From the
Effective Date through the Closing Date, neither Seller nor any of the Purchased
Entities shall take or fail to take any action if such action or inaction, as
the case may be, would adversely affect the applicability, prior to the Closing
Date, of any insurance policies listed on Schedule 3.4 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.
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3.5 Current Information. During the period from the date of this
Agreement to the Closing, Seller will cause one or more of its representatives
to confer on a regular basis with the Designated Representative with respect to
the status of the ongoing operations of the Purchased Entities. Seller promptly
will notify Purchasers of any material change in the normal course of business
of the Purchased Entities or, if known to Seller, of any complaints from a
Governmental Authority or of any litigation known to Seller (or written
communications received by Seller or the Purchased Entities indicating that the
same may be contemplated) or, if known to Seller or the Purchased Entities, the
institution or the threatened institution of any litigation in each case that
would challenge, prevent, alter or materially delay any of the transactions
contemplated by the Transaction Documents and Seller will keep Purchasers
informed with respect to such events. Seller and Purchasers will notify each
other at mutually agreeable times of the status of applications with
Governmental Authorities and third-party consents related to the transactions
contemplated by the Transaction Documents. In addition, Seller will allow the
Purchasers and/or their representatives reasonable access to any and all
records, files, contracts, employees, representatives, agents and other
information or persons deemed necessary by Purchasers and/or their
representatives to verify representations and warranties made by Seller herein
and other information provided by Seller to Purchasers in connection with the
transactions contemplated by the Transaction Documents.
3.6 Post-Closing Funds. Except as set forth on Schedule 3.6 attached
hereto, all revenues, cash, funds, notes, accounts receivable and the like, of
any kind, received by the Purchased Entities relating to periods after July 1,
1999 ("Post-Closing Funds"), including, without limitation, funds received by
any such entity with respect to season tickets, club seats, luxury suites,
television, radio, marketing, sponsorship or advertising, shall be maintained,
subject to the proviso to the following sentence, by each Purchased Entity
receiving such Post-Closing Funds. Neither Seller nor any Purchased Entity shall
use, or grant any Lien against, the Post-Closing Funds for any reason; provided,
that Seller may use such Post-Closing Funds to pay for operating expenses
relating to the Businesses (i) incurred by Seller after June 30, 1999 in the
ordinary course of business consistent with past practice subject to the
provisions of Section 3.2 or (ii) as set forth on Schedule 3.6.
3.7 Preservation of LDA's Ascent Arena Company Membership Interest.
LDA agrees not to sell, transfer, hypothecate or encumber its Ascent Arena
Company Membership Interest prior to the Closing.
ARTICLE IV.
CLOSING
4.1 Closing. Subject to the terms and conditions of this Agreement,
the sale and purchase of (a) the LLC-I Membership Interest, (b) the LLC-II
Membership Interest, (c) the Seller Ascent Arena Company Membership Interests,
(d) the AEG Nuggets LP Partnership Interest, and (e) the AEG Avalanche
Membership Interest (subsections (a), (b), (c), (d) and (e), the LLC-I Avalanche
Membership Interest and the LLC-I Nuggets LP Partnership Interest are
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referred to collectively as the "Equity Interests") contemplated by this
Agreement and the sale and purchase of the LDA Ascent Arena Company Membership
Interest shall take place at a closing (the "Closing") to be held at the offices
of AEG in Denver, Colorado on the second Business Day following the satisfaction
or waiver of all conditions to the obligations of the parties set forth in this
Agreement, or at such other place or at such other time or on such other date as
the parties may mutually agree upon in writing (the day on, and the time at,
which the Closing takes place being the "Closing Date"). The Closing shall be
deemed to be effective as of the close of business on June 30, 1999.
4.2 Closing Deliveries by AEG. At the Closing, AEG shall deliver, or
cause to be delivered, to Purchasers (all in form and substance reasonably
satisfactory to Purchasers):
(a) An assignment to Sturm Arena of all of AEG's right, title and
interest in and to its 1% Ascent Arena Company Membership Interest, together
with AEG's resignation as manager thereof, effective as of the Closing Date.
(b) An assignment to Sturm Nuggets of all of AEG's right, title and
interest in and to the portion of the AEG Nuggets LP Partnership Interest not
transferred to HC prior to the Closing.
(c) An assignment to Sturm Sports of all of AEG's right, title and
interest in and to the portion of the AEG Avalanche Membership Interest not
transferred to HC prior to the Closing.
(d) A certificate in which AEG represents and warrants to Sturm
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 Pepsi Center, and (iii) the fund balance in the Construction
Fund Account.
(e) Certificate executed by AEG pursuant to which AEG represents and
warrants to Sturm Arena, as of the Closing Date, the then-existing balance of
funds in each of the Accounts, other than the Construction Fund Account.
(f) The opinions, certificates, consents and other documents required
to be delivered pursuant to Section 7.1.
(g) All books, records and accounting papers of the Purchased
Entities.
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4.3 Closing Deliveries by Purchasers.
(a) At the Closing, Purchasers shall deliver, or cause to be
delivered, to Seller:
(i) by wire transfer in immediately available funds, the AEG
Purchase Price and the portion of any Closing Period Payment apportioned to AEG
pursuant to Section 2.5; and
(ii) the opinions, certificates and other documents required
to be delivered pursuant to Section 7.2 in form and substance reasonably
satisfactory to AEG.
(b) At the Closing, Purchasers shall deliver, or cause to be
delivered, to LDA:
(i) by wire transfer in immediately available funds, the LDA
Purchase Price and the portion of any Closing Period Payment apportioned to LDA
pursuant to Section 2.5; and
(ii) the certificates and other documents required to be
delivered pursuant to Section 7.3 in form and substance reasonably satisfactory
to LDA.
4.4 Closing Deliveries by LDA. At the Closing, LDA shall deliver, or
cause to be delivered, to Purchasers (all in form and substance reasonably
satisfactory to Purchasers):
(a) An assignment to Sturm Arena of all of LDA's right, title and
interest in and to its 6.5% Ascent Arena Company Membership Interest, effective
as of the Closing Date.
(b) The certificates and other documents required to be delivered
pursuant to Section 7.1(t) of this Agreement.
4.5 Closing Deliveries by HC. At the Closing, HC shall deliver, or
cause to be delivered, to Purchasers:
(a) An assignment to Sturm Avalanche of all of HC's right, title and
interest in and to the LLC-I Membership Interest.
(b) An assignment to Sturm Arena of all of HC's right, title and
interest in and to the LLC-II Membership Interest.
(c) An assignment to Sturm Nuggets of all of HC's right, title and
interest in the portion of the AEG Nuggets LP Partnership Interest that AEG
transfers to HC prior to the Closing.
(d) An assignment to Sturm Avalanche of all of HC's right, title and
interest in the portion of the AEG Avalanche Membership Interest that AEG
transfers to HC prior to the Closing.
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to enter into this Agreement, Seller represents and
warrants to Purchasers that the following matters are true and correct as of the
Schedules Effective Date and as of the Closing Date unless limited to a specific
date.
5.1 General Corporate and Partnership Matters.
(a) Organization and Standing. As of the Effective Date (except in
respect of LLC-I and LLC-II, which will be formed following the Effective Date)
and as of the Closing Date, each Subject Entity:
(i) is a Person duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(ii) has full power and authority to own, lease and operate
its Assets and to conduct its Business as now being conducted; and
(iii) is qualified or licensed to do business in all states and
other jurisdictions where its ownership, leasing or operation of its Assets, or
the conduct of its business, requires such qualification or licensing, except
where the failure to be so qualified or registered would not result in a
Material Adverse Effect.
(b) Organizational Documents. The Purchased Entities have, or, in the
case of LLC-I and LLC-II, will have prior to the Closing, delivered to the
Purchasers true and complete copies of their respective Organizational Documents
and corporate, partnership or limited liability company books, records and
ledgers. Such documents contain, or, in the case of LLC-I and LLC-II, will
contain, true and complete minutes and records of all issuances and transfers of
any stock, membership, partnership or other ownership interest in the Purchased
Entities, and all minutes and records of all meetings, consents, proceedings and
other actions of the partners, members, shareholders, board of directors and
committees of the board of directors of the Purchased Entities since the date of
incorporation or formation.
(c) Corporate Power; Authorization; No Contravention; Consents. As of
the Effective Date and as of the Closing Date:
(i) Seller has all requisite legal and corporate power to
enter into this Agreement and to carry out and perform its obligations under the
terms of this Agreement and any other Transaction Document to which it is a
party.
(ii) The execution, delivery and performance of the
Transaction Documents and the consummation of the transactions contemplated
thereby have been duly authorized by all necessary corporate action on the part
of Seller, and no other corporate
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proceedings or action on the part of Seller are necessary to authorize the
Transaction Documents or to consummate the transactions contemplated thereby.
(iii) The execution, delivery, and performance by Seller of the
Transaction Documents will not:
(A) conflict with or violate any of Seller's
Organizational Documents;
(B) result in any breach or violation of, or constitute
a default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any Contract, except
as would not have a Material Adverse Effect;
(C) result in the creation of any Lien on any of the
Assets of a Purchased Entity;
(D) require any consent or approval of any third-party
or any party to any Contract of Seller or its Affiliates, the absence of which
would constitute a Material Adverse Effect, other than the City Consent, the
consent of the other members of Mountain Mobile with respect to the sale of the
Mountain Mobile Membership Interest and the Sports Entities Required Contractual
Consents; or
(E) conflict with or violate any Applicable Laws (other
than such conflicts or violations that would not have a Material Adverse
Effect).
(d) Binding Effect. As of the Effective Date and as of the Closing
Date, each of the Transaction Documents to which Seller is a party constitutes a
legal, valid and binding obligation of Seller, enforceable against it in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
(e) Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or registration, declaration or
filing with, any Governmental Authority is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, Seller
of any Transaction Document, other than:
(i) compliance with any applicable requirements of the HSR
Act with respect to the consummation of the transactions contemplated hereby;
(ii) compliance with the registration requirements of the
Securities Act, or an exemption therefrom, and any applicable state blue sky
laws and the Securities Exchange Act of 1934;
(iii) the City Consent;
(iv) any Sports Entities Required Governmental Approval; and
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(v) as set forth in this Agreement.
(f) Subsidiaries. Except as set forth in Schedule 5.1(f) attached
hereto and as provided herein, the Purchased Entities have no directly or
indirectly owned Subsidiaries and have made no advances to or investments in,
and do not own any securities of or other interests in, any Person.
5.2 Authorized Capital; Title to Shares and Membership Interests.
(a) Ascent Development Corp. Subject to the provisions of Section
11.13 hereof:
(i) The authorized capital stock of Ascent Development Corp.
consists solely of 1,000 shares of common stock, par value $1.00 per share (the
"ADC Shares"), of which 1,000 shares are issued and outstanding. There are no
other outstanding shares of capital stock or other securities or other ownership
interests in Ascent Development Corp.
(ii) AEG has good title to the ADC Shares, free and clear of
all Liens other than those created by this Agreement. AEG is the record and
beneficial owner of the ADC Shares.
(iii) The ADC Shares have been duly authorized and validly
issued, are fully paid and nonassessable, were not issued in violation of the
terms of any Contract binding upon Ascent Development Corp. or AEG, and were
issued in compliance with all applicable Organizational Documents and Applicable
Law.
(b) Ascent Arena Company.
(i) As of the Closing Date, the Seller Ascent Arena Company
Membership Interests will be as follows:
AEG 1%
LLC-II 92.5%
(ii) AEG and LLC-II will have, as of the Closing Date, good
title to 100% of the Seller Ascent Arena Company Membership Interests, free and
clear of all Liens other than those created by this Agreement. AEG and LLC-II
will be, as of the Closing Date, the record and beneficial owners of the Seller
Ascent Arena Company Membership Interests in the ratios stated in Section
5.2(b)(i).
(iii) The Seller Ascent Arena Company Membership Interests have
been duly authorized and validly issued, are fully paid and nonassessable, were
not issued in violation of the terms of any Contract binding upon Ascent Arena
Company, AEG, Ascent Development Corp. or LLC-II and were issued in compliance
with all applicable Organizational Documents and Applicable Law.
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(iv) Except as set forth in the Ascent Operating Agreement,
there are: (A) no existing Contracts or rights of any character with respect to
the purchase, redemption or acquisition of any membership or other interest in
Ascent Arena Company, existing or contingent, at any time, or upon the happening
of any stated event; (B) no outstanding interests that are convertible into or
exchangeable for membership or other interests in Ascent Arena Company; and (C)
no Contracts or rights of any character to purchase or otherwise acquire from
AEG, Ascent Arena Company, Ascent Development Corp. or LLC-II any such
convertible or exchangeable interests.
(c) Mountain Mobile.
(i) The membership interests comprising Mountain Mobile are
as follows:
Nuggets LP 1/3
Fox Sports Rocky Mountain 1/3
Norac 1/3
(ii) Nuggets LP has good title to the Mountain Mobile
Membership Interest, free and clear of all Liens other than those created by
this Agreement. Nuggets LP is the record owner and, as of the Closing LLC-I will
be, the beneficial owner of the Mountain Mobile Membership Interest, with the
sole right to vote, dispose of, and receive distributions and dividends with
respect to such membership interest.
(iii) Except as set forth on Schedule 5.2(c)(iii) attached
hereto, the Mountain Mobile Membership Interest has been duly authorized and
validly issued, is fully paid and nonassessable, and to the Actual Knowledge of
Seller, was not issued in violation of the terms of any Contract binding upon
Mountain Mobile or Nuggets LP and was issued in compliance with all applicable
Organizational Documents and Applicable Law.
(iv) Except as set forth in the Operating Agreement of
Mountain Mobile, to the Actual Knowledge of Seller, there are: (A) no existing
Contracts or rights of any character with respect to the purchase, redemption or
acquisition of the Mountain Mobile Membership Interest or any other membership
interest in Mountain Mobile, existing or contingent, at any time, or upon the
happening of any stated event; (B) no outstanding interests that are convertible
into or exchangeable for membership or other interests in Mountain Mobile which
would dilute the interest being acquired by Sturm Sports; and (C) no Contracts
or rights of any character to purchase or otherwise acquire any such convertible
or exchangeable interests.
(d) Arena Operating Company.
(i) Ascent Arena Company is the sole member and manager of
Arena Operating Company, and no other membership, management, equity or other
interests in Arena Operating Company exist.
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(ii) Ascent Arena Company's interest in Arena Operating
Company is free and clear of all Liens other than those created by this
Agreement. Ascent Arena Company has the sole right to vote, dispose of, and
receive distributions and dividends with respect to the Arena Operating Company.
(iii) Ascent Arena Company's interest in Arena Operating
Company has been duly authorized and validly issued, is fully paid and
nonassessable, was not issued in violation of the terms of any Contract binding
upon Arena Operating Company or Ascent Arena Company, and was issued in
compliance with all applicable Organizational Documents and Applicable Law.
(iv) Other than the Permitted Liens, there are: (A) no
existing Contracts or rights of any character with respect to the purchase or
acquisition of any membership or other interest in Arena Operating Company,
existing or contingent, at any time, or upon the happening of any stated event;
(B) no outstanding interests that are convertible into or exchangeable for
membership or other interests in Arena Operating Company; and (C) no Contracts
or rights of any character to purchase or otherwise acquire from the Arena
Operating Company or Ascent Arena Company any such convertible or exchangeable
interests.
(e) Denver Arena Trust.
(i) Ascent Arena Company is the sole certificate holder of
the trust certificates of the Denver Arena Trust (the "Trust Certificates"), and
there are no other outstanding trust certificates, and no outstanding
subscriptions, options, warrants, puts, calls, rights, exchangeable or
convertible securities or other commitments or agreements of any nature relating
to the trust certificates of the Denver Arena Trust. Ascent Arena Company has
the sole right to receive distributions with respect to the Residual Interest as
defined in the Trust Agreement, subject only to the City Lien.
(ii) The Trust Certificates are free and clear of all Liens,
other than those created by this Agreement and the City Lien. The Trust
Certificates were issued in compliance with the Trust Agreement and Applicable
Law.
(iii) The Denver Arena Trust is not a business trust within the
meaning of Section 101(9)(A)(v) of the Bankruptcy Code. For federal, state and
local income and franchise tax purposes, by virtue of there being a sole Trust
Certificate holder, the Denver Arena Trust constitutes a security arrangement,
with the assets being held by the trust, the owner of the trust assets being the
sole Trust Certificate holder, and the Notes being non-recourse debt of the sole
Trust Certificate holder. The Denver Arena Trust has not elected treatment as an
association under Treasury Regulations Section 301.7701-3(a) for federal income
tax purposes. The Denver Arena 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
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equity or similar interest in, any corporation, partnership, joint venture,
limited liability company or other business association or entity.
(v) Ascent Arena Company has not received any distributions
of the Residual Interest or other amounts pursuant to the Trust Agreement.
(f) Avalanche LLC.
(i) As of the Closing Date, the membership interests in
Avalanche LLC will be as follows:
AEG 1%
HC 49%
LLC-I 50%
(ii) As of the Closing Date, AEG and LLC-I will have good
title to the Avalanche LLC membership interests, free and clear of all Liens
other than those created by this Agreement, and are the record and beneficial
owners of the Avalanche LLC membership interests in the ratios stated in Section
5.2(f)(i) with the sole right to vote, dispose of, and receive distributions and
dividends with respect to the Avalanche LLC membership interests.
(iii) The Avalanche LLC membership interests have been duly
authorized and validly issued, are fully paid and nonassessable, were not issued
in violation of the terms of any Contract binding upon Avalanche LLC, AEG,
Ascent Sports or LLC-I and were issued in compliance with all applicable
Organizational Documents and Applicable Law.
(iv) Other than the Permitted Liens, there are: (A) no
existing Contracts or rights of any character with respect to the purchase,
redemption or acquisition of any membership or other interest in Avalanche LLC,
existing or contingent, at any time, or upon the happening of any stated event;
(B) no outstanding interests that are convertible into or exchangeable for
membership or other interests in Avalanche LLC; and (C) no Contracts or rights
of any character to purchase or otherwise acquire from AEG, Avalanche LLC,
Ascent Sports or LLC-I any such convertible or exchangeable interests.
(g) Nuggets LP.
(i) As of the Closing Date, the Nuggets LP partnership
interests will be as follows:
AEG 1%
HC 97.2%
LLC-I 1.8%
(ii) As of the Closing Date, AEG, HC and LLC-I will have good
title to the Nuggets LP partnership interests, free and clear of all Liens other
than those created by this Agreement. As of the Closing Date, AEG, HC and LLC-I
will be the record and beneficial
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owners of the Nuggets LP partnership interests in the ratios stated in Section
5.2(g)(i) with the sole right to vote, dispose of, and receive distributions and
dividends with respect to the Nuggets LP partnership interests.
(iii) The Nuggets LP partnership interests have been duly
authorized and validly issued, are fully paid and nonassessable, were not issued
in violation of the terms of any Contract binding upon Nuggets LP, AEG, Ascent
Sports or LLC-I and were issued in compliance with all applicable Organizational
Documents and Applicable Law.
(iv) Other than Permitted Liens, there are: (A) no existing
Contracts or rights of any character with respect to the purchase, redemption or
acquisition of any membership or other interest in Nuggets LP, existing or
contingent, at any time, or upon the happening of any stated event; (B) no
outstanding interests that are convertible into or exchangeable for membership
or other interests in Nuggets LP; and (C) no Contracts or rights of any
character to purchase or otherwise acquire from AEG, Nuggets LP, Ascent Sports
or LLC-I any such convertible or exchangeable interests.
(h) Restrictions. Except as disclosed on Schedule 5.2(h) attached
hereto, there is no voting or other trust or agreement, option, warrant,
preemptive right, right of first offer, right of first refusal, escrow
arrangement, proxy, buy-sell agreement, power of attorney or other Contract, or
any order, judgment or decree, relating to any of the Equity Interests which,
conditionally or unconditionally, (i) grants to any Person the right to
purchase, redeem or otherwise acquire, or obligates any Person to sell or
otherwise dispose of or issue, or otherwise results or, whether upon the
occurrence of any event or with notice or lapse of time or both or otherwise,
may result in any Person acquiring, (A) any of such Equity Interests; (B) any of
the proceeds of, or any distributions paid or which are or may become payable
with respect to, any of such Equity Interests; or (C) any interest in such
Equity Interests or any such proceeds or distributions; (ii) restricts or,
whether upon the occurrence of any event or with notice or lapse of time or both
or otherwise, is reasonably likely to restrict the transfer or voting of, or the
exercise of any rights or the enjoyment of any benefits arising by reason of
ownership of, any such Equity Interests or any such proceeds or distributions;
or (iii) creates or, whether upon the occurrence of any event or with notice or
lapse of time or both or otherwise, is reasonably likely to create a Lien or
purported Lien affecting such Equity Interests, proceeds or distributions.
(i) LLC-I.
(i) As of the Closing Date, the membership interests in LLC-I
will be as follows:
HC 100%
(ii) As of the Closing Date, HC will have good title to the
LLC-I Membership Interest, free and clear of all Liens other than those created
by this Agreement, and will be the record and beneficial owner of the LLC-I
Membership Interest as stated in Section 5.2(i)(i) with the sole right to vote,
dispose of, and receive distributions and dividends with respect to the LLC-I
Membership Interest.
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(iii) The LLC-I Membership Interest has been duly authorized
and validly issued, is fully paid and nonassessable, was not issued in violation
of the terms of any Contract binding upon LLC-I, HC or AEG and was issued in
compliance with all applicable Organizational Documents and Applicable Law.
(iv) Other than the Permitted Liens, there are: (A) no
existing Contracts or rights of any character with respect to the purchase,
redemption or acquisition of any membership or other interest in LLC-I, existing
or contingent, at any time, or upon the happening of any stated event; (B) no
outstanding interests that are convertible into or exchangeable for membership
or other interests in LLC-I; and (C) no Contracts or rights of any character to
purchase or otherwise acquire from AEG, HC or LLC-I any such convertible or
exchangeable interests.
(j) LLC-II.
(i) As of the Closing Date, the membership interests in LLC-
II will be as follows:
HC 100%
(ii) As of the Closing Date, HC will have good title to the
LLC-II Membership Interest, free and clear of all Liens other than those created
by this Agreement, and will be the record and beneficial owner of the LLC-II
Membership Interest as stated in Section 5.2(j)(i) with the sole right to vote,
dispose of, and receive distributions and dividends with respect to the LLC-II
Membership Interest.
(iii) The LLC-II Membership Interest has been duly authorized
and validly issued, is fully paid and nonassessable, was not issued in violation
of the terms of any Contract binding upon LLC-II, HC or AEG and was issued in
compliance with all applicable Organizational Documents and Applicable Law.
(iv) Other than the Permitted Liens, there are: (A) no
existing Contracts or rights of any character with respect to the purchase,
redemption or acquisition of any membership or other interest in LLC-II,
existing or contingent, at any time, or upon the happening of any stated event;
(B) no outstanding interests that are convertible into or exchangeable for
membership or other interests in LLC-II; and (C) no Contracts or rights of any
character to purchase or otherwise acquire from AEG, HC or LLC-II any such
convertible or exchangeable interests.
5.3 Financial Statements and Undisclosed Liabilities.
(a) Seller has delivered to Purchasers the financial statements
described in Schedule 5.3(a) attached hereto (collectively, the "Financial
Statements"). The Financial Statements in each case have been prepared based on
the books and records of the Purchased Entities in accordance with GAAP (except
in the case of internally prepared quarterly statements which do not include
notes or year-end adjustments), consistently applied throughout the periods
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covered thereby and fairly present in all material respects the financial
condition, results of operations and statements of cash flow of the Purchased
Entities as of the dates or periods indicated (subject in the case of interim
financial statements to normal year-end adjustments). Since the Balance Sheet
Date, the Purchased Entities have conducted its respective businesses in a
consistent manner without change of accounting policy or procedure including,
without limitation, its practices in connection with the treatment of revenue
recognition, capitalization policies, reserves and expenses.
(b) Undisclosed Liabilities. Except as set forth on Schedule 5.3(b)
attached hereto, the Purchased Entities do not have any Liabilities except for
Liabilities (i) reflected on or reserved against in the Financial Statements of
such Persons, (ii) disclosed in this Agreement, and (iii) incurred in the
ordinary course of business consistent with past practice since the Balance
Sheet Date or otherwise entered into in accordance with this Agreement.
5.4 Litigation. Except as specifically disclosed in Schedule 5.4
attached hereto, there are no actions, suits, hearings, arbitrations,
proceedings (public or private), claims, disputes, or governmental
investigations (collectively, "Proceedings") pending, or to the Knowledge of
Seller, threatened or contemplated, at law, in equity, in arbitration or before
any Governmental Authority, against the Pepsi Center or any of the Purchased
Entities or their Affiliates or any of their respective Assets (excluding any
Proceedings pending or threatened against the NBA or the NBA Member Teams
generally or against the NHL or the NHL Member Teams generally, provided that
Seller shall list all such litigation of which it has Knowledge on Schedule 5.4)
as to which there exists a substantial likelihood of an adverse determination,
which determination would result in a Material Adverse Effect.
5.5 Employees.
(a) Sports Entities' Employees. Except as disclosed in Schedule
5.12(b)(i), Schedule 5.5(a) attached hereto lists, as of the Schedules 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.
(b) Ascent Arena Entities' Employees. Except as disclosed in Schedule
5.13(e), Schedule 5.5(b) attached hereto lists, as of the Schedules Effective
Date, the name, date and place of employment, current annual salary and any
other bonuses, and a description of position of each current exempt employee,
officer, director, consultant or agent of any Ascent Arena Entity. Seller shall
deliver to Purchasers an updated version of Schedule 5.5(b) on the Closing Date.
(c) No Resignations by Key Employees. As of the Schedules 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.
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(d) No Solicitation of Key Employees. Neither Seller nor any of its
Affiliates (excluding the Purchased Entities) has solicited, directly or
indirectly, for themselves or any other person or entity, any Key Employee.
5.6 Employee Benefits.
(a) Purchased Entities Employee Plans.
(i) Schedule 5.6(a)(i) attached hereto sets forth a correct
and complete list of all material Purchased Entities Employee Plans. Seller and
the Purchased Entities have made available to Purchasers true and complete
copies of the Purchased Entities Employee Plans and all related summary
descriptions, including, without limitation, copies of any employee handbooks
listing or describing any Purchased Entities Employee Plans and summary
descriptions of any Purchased Entities Employee Plan not otherwise in writing.
(ii) Except for any failure or default that would not have a
Material Adverse Effect, each of the Purchased Entities has fulfilled or has
taken all actions necessary to enable it to fulfill when due all of its
obligations under each Purchased Entities Employee Plan. To the Knowledge of
Seller, there are no negotiations, demands or proposals which are pending or
which have been made to Seller or the Purchased Entities which concern material
matters now covered, or that would be covered, by any Purchased Entities
Employee Plan that would have a Material Adverse Effect.
(iii) Each of the Purchased Entities is in full compliance with
all Applicable Law applicable to each Purchased Entities Employee Plan except
where noncompliance would not have a Material Adverse Effect. There has been no
Employee Plan Event which is continuing or in respect of which there is any
outstanding liability of any of the Purchased Entities that, individually or in
the aggregate, would have a Material Adverse Effect, and no such Employee Plan
Event is reasonably expected to occur, with respect to any Purchased Entities
Employee Plan.
(iv) Except as disclosed in Schedule 5.6(a)(iv) attached
hereto, the execution and delivery of the Transaction Documents and the
conclusion of the transactions contemplated by this Agreement will not
cause the acceleration of vesting in, or payment of, any benefits under any
Purchased Entities Employee Plan.
(v) None of the Purchased Entities has any formal plan or
commitment, whether legally binding or not, to create any additional Employee
Plan or to modify or change any existing Employee Plan that would affect any
current or former employee of any of the Purchased Entities.
(vi) Schedule 5.6(a)(i) separately identifies any Purchased
Entities Employee Plan that provides life insurance or employee welfare plan
benefits (within the meaning of Section 3(1) of ERISA), now or in the future, to
any former employee at any cost to any of the Purchased Entities (except as
required by Applicable Law).
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(b) Employee Plans of the Purchased Entities' ERISA Affiliates.
Except as would not have a Material Adverse Effect, there has been no Employee
Plan Event with respect to any Employee Plan of any person that is an ERISA
Affiliate of the Purchased Entities or who was an ERISA Affiliate of the
Purchased Entities at any time since December 31, 1993, in respect of which any
liability could be expected to be incurred by any of the Purchased Entities.
(c) Purchased Entities Qualified Plans.
(i) Each Purchased Entities Qualified Plan has received a
favorable determination letter (or opinion letter) from the IRS providing that
each such plan satisfies the requirements of Section 401(a) of the Code, and
each trust under each such plan is exempt from Taxes under Section 501(a) of the
Code. To the Knowledge of Seller, no event has occurred that will or would
reasonably be expected to give rise to disqualification or loss of tax-exempt
status of any such plan or trust under such sections.
(ii) Seller and the Purchased Entities have made available to
Purchasers for each Purchased Entities Qualified Plan copies of the following
documents, if applicable: (A) the Form 5500 filed for each of the three most
recent plan years, including all schedules thereto and financial statements with
attached opinions of independent accountants; and (B) the most recent
determination letter from the IRS.
(d) Purchased Entities ERISA Plans and Multiemployer Plans. No
Purchased Entities Employee Plan is, and no Employee Plan maintained by any of
the Purchased Entities during the five year period prior to the date hereof was,
an ERISA Plan. None of the Purchased Entities has during the five year period
prior to the date hereof contributed to, or withdrawn in a complete or partial
withdrawal from, any Multiemployer Plan or incurred any contingent liability
under Section 4204 of ERISA, nor is there any current potential liability for
withdrawal from a Multiemployer Plan, in either case that would have a Material
Adverse Effect, except as disclosed in Schedule 5.6(d) attached hereto.
5.7 Labor and Employment Matters.
(a) Except as set forth in Schedule 5.7(a) attached hereto, (i) to
the Knowledge of Seller, none of the Purchased Entities is currently, or has
been within the past 3 years, engaged in any practice, act or course of conduct
which, to the Knowledge of Seller, constitutes an unfair labor practice or
discriminatory act or course of conduct not in compliance with Applicable Laws;
(ii) as of the Effective Date, there is no labor strike, dispute, slow down or
stoppage pending or, to the Actual Knowledge of Seller, threatened against or
directly affecting any of the Purchased Entities; (iii) as of the Schedules
Effective Date, none of the Purchased Entities is a party to any pending
grievance or arbitration proceeding arising out of or under any collective
bargaining agreement, and to the Actual Knowledge of Seller no claims therefor
exist; (iv) no collective bargaining agreement exists that is binding on any of
the Purchased Entities; and (v) as of the Schedules Effective Date, neither
Seller, the Purchased Entities, nor any of their respective Affiliates has
received any written notice or has Actual Knowledge of any threatened labor or
civil rights dispute, controversy or grievance or any other unfair labor
practice proceeding or breach of contract claim or action with respect to claims
of, or obligations to, any
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employee or group of employees of any Purchased Entity, and the same will be
true as of the Closing Date except as would not have a Material Adverse Effect.
(b) To the Knowledge of Seller, as of the Schedules Effective Date,
there are no organizational efforts presently being made involving any
nonorganized employees of any of the Purchased Entities.
5.8 Intellectual Property.
(a) Schedule 5.8(a) attached hereto sets forth a complete and correct
list of all Intellectual Property.
(b) Immediately after the Closing and except as a result of any
actions by Purchasers thereafter, the Purchased Entities' ownership and/or right
to Intellectual Property (i) to Seller's Actual Knowledge, will be the same as
the Purchased Entities' ownership and/or right immediately before the Closing,
(ii) will be free from any Liens, and (iii) will be free from any requirement of
any royalty payments, license fees, charges or other payments, conditions or
restrictions, except for Permitted Liens and otherwise as noted in the Contracts
identified in Schedule 5.8(a) attached hereto.
(c) Schedule 5.8(a) attached hereto sets forth a complete and correct
list of all material agreements (i) pursuant to which the Purchased Entities
have licensed Intellectual Property, or have permitted any Person to use
Intellectual Property, and (ii) pursuant to which the Purchased Entities have
been granted a license to Intellectual Property. All such agreements (A) are in
full force and effect in accordance with their terms and no default exists
thereunder by the Purchased Entities, or to the Knowledge of Seller, by any
other party thereto, (B) are free and clear of all Liens, and (C) do not contain
any change-in-control provisions or other terms or conditions that will become
applicable or inapplicable as a result of the Closing, except as may be provided
in Contracts specifically identified in Schedule 5.8(a) attached hereto.
(d) Except as set forth in Schedule 5.8(a) attached hereto, no claim
or demand has been made, nor is there any proceeding that is pending, or to the
Knowledge of Seller, threatened, that (i) challenges the Purchased Entities'
rights in Intellectual Property, (ii) asserts that the Purchased Entities are
infringing upon the intellectual property rights of another, or (iii) claims
that any default exists under any agreement listed in Schedule 5.8(a) attached
hereto. None of the Intellectual Property is subject to any outstanding order,
ruling, decree, judgment or stipulation by or with any court, arbitrator, or
administrative agency, or has been the subject of any litigation within the five
years prior to the Schedules Effective Date, whether or not resolved in favor of
the Purchased Entities.
5.9 Environmental Compliance.
(a) To the Knowledge of Seller, each Purchased Entity has obtained
all approvals, authorizations, certificates, consents, licenses, orders, and
permits or other similar authorizations (collectively, "Authorizations") of all
Governmental Authorities, or from any
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other Person, that are required under any Environmental Law, and all such
Authorizations are currently in effect.
(b) Each Purchased Entity has been and currently is in compliance in
all material respects with all terms and conditions of all Authorizations of all
Governmental Authorities (and all other Persons) required under all
Environmental Laws, including, without limitation, the VCUP and is also in
compliance in all material respects with all other limitations, restrictions,
conditions, standards, requirements, schedules and timetables required or
imposed under all Environmental Laws including without limitation the VCUP.
(c) Seller has not received notice of any claims which are pending
and, to the Knowledge of Seller, there are not any claims which are threatened,
relating to or alleging noncompliance or liability under any Environmental Law
with respect to any of the Purchased Entities or their respective Assets
(including without limitation, the Arena Land and the Development Property).
(d) True and complete copies of all permits, investigations, studies,
documents, reports, audits, tests, analytical data and correspondence related to
the environmental condition of the Assets which is in the possession or control
of Seller or an Affiliate of Seller or its respective consultants and agents
have been made available to Purchasers.
5.10 Insurance.
(a) Sports Entities Insurance Policies. Schedule 5.10(a) attached
hereto sets forth a complete and correct list of all insurance policies of any
kind or nature whatsoever currently in force with respect to the Businesses of
the Sports Entities (the "Sports Entities Insurance Policies"), including all
"occurrence based" liability policies regardless of the periods to which they
relate. Seller has delivered to Purchasers complete and correct copies of all
Sports Entities Insurance Policies, except for those which are in the control of
a Person other than Seller or its respective consultants or agents. The Sports
Entities Insurance Policies as currently in effect constitute insurance against
risks of a character and in such amounts as are reasonable and customary to be
insured against by similarly situated companies in the same or similar
businesses, all of such insurance policies are in full force and effect and are
valid, outstanding and enforceable, and all premiums due thereon have been paid
currently.
(b) Ascent Arena Entities Insurance Policies. The Ascent Arena
Entities have the benefit, pursuant to policies carried by such entities or by
the Construction Contractor for their benefit, of policies of fire and casualty,
general liability and excess or umbrella liability, builder's risk, business
automotive, workers' compensation, employers' liability, business interruption
and other forms of insurance in such amounts, with such deductibles and against
such risks and losses as are reasonable in relation to the operation of the
businesses of such entities, including without limitation construction of the
Pepsi Center, and which comply in all respects with the insurance requirements
set forth in the Operating and Management Agreement. All such policies are in
full force and effect, all premiums due and payable thereon as of the date
hereof have been paid, and no notice of cancellation or termination has been
received with respect to any such policy which policy has not been replaced
prior to the date of such
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cancellation. The activities of the Ascent Arena Entities have been conducted in
a manner so as to conform in all material respects to all applicable provisions
of such insurance policies. Except as set forth on Schedule 5.10(b), the
coverage of such policies will not cease upon Closing, and to the Actual
Knowledge of AEG the Ascent Arena Entities will continue to be entitled to the
benefits of such policies assuming compliance post-Closing by Purchasers with
the terms and conditions of such policies.
5.11 Tax Matters.
(a) Corporate Entities.
(i) All Returns required to be filed by or on behalf of any
Corporate Entity have been duly filed on a timely basis and all Returns filed by
or on behalf of a Corporate Entity (including all attached statements and
schedules) are true, complete and correct in all respects, except for such
failures to file and failures to be true, complete and correct as would not,
individually or in the aggregate, have a Material Adverse Effect. No claim has
been made or threatened in writing by any jurisdiction where a Corporate Entity
does not file returns that the Corporate Entity is or may be subject to Taxes in
that jurisdiction. All Taxes shown to be payable on such Returns or on
subsequent assessments with respect thereto have been paid in full on a timely
basis. No other Taxes are payable by any Corporate Entity with respect to items
or periods covered by such Returns (whether or not shown on or reportable on
such Returns), except for such Taxes as would not, individually or in the
aggregate, have a Material Adverse Effect.
(ii) Each Corporate Entity has withheld and paid over all
Taxes required to have been withheld and paid over (including any estimated
taxes), and has complied with all information reporting and backup withholding
requirements, including maintenance of required records with respect thereto, in
connection with amounts paid or owing to any employee, creditor, independent
contractor or other third party, except for such failures to withhold or pay
over and such failures to comply as would not, individually or in the aggregate,
have a Material Adverse Effect.
(iii) There are no Liens on any of the Assets of any Corporate
Entity with respect to Taxes, other than Liens for Taxes not yet due and payable
or for Taxes that are being contested in good faith through appropriate
proceedings and for which appropriate reserves have been established, except for
such Liens as would not, individually or in the aggregate, have a Material
Adverse Effect.
(iv) Except as disclosed on Schedule 5.11(a)(iv) attached
hereto, none of the Corporate Entities has ever been included in an affiliated
group of corporations, within the meaning of section 1504 of the Code and none
has ever been a member of any combined or unitary group in each case other than
a group, the common parent of which is AEG.
(v) For all periods beginning on or after July 1, 1997, each
of the Corporate Entities has joined in the filing of, or will join in the
filing of, consolidated federal income tax returns as part of the consolidated
group of which AEG is the parent company and
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has joined in the filing of, or will join in the filing of, consolidated,
combined or unitary state income tax returns as part of a consolidated, combined
or unitary group of which AEG is the parent company for the states listed on
Schedule 5.11(a)(v) attached hereto.
(vi) Except as set forth on Schedule 5.11(a)(vi) attached
hereto, Seller has furnished Purchasers with true and complete copies of all
Returns with respect to Income Taxes of each Corporate Entity for all years
beginning after December 31, 1995 with respect to which the statute of
limitations does not bar a tax assessment. Prior to Closing, Seller shall make
available to Purchasers, during normal business hours, true and complete copies
of all other Returns of each Corporate Entity for all periods beginning after
December 31, 1995 (and with respect to periods beginning on or before December
31, 1995, any other Returns in Seller's possession), all tax audit reports, work
papers, statements of deficiencies, closing or other agreements received by a
Corporate Entity or on its behalf relating to Taxes for all periods beginning
after December 31, 1995 (and with respect to periods beginning on or before
December 31, 1995, any tax audit reports, work papers, statements of
deficiencies, closing or other agreements received by a Corporate Entity or on
its behalf relating to Taxes that are in Seller's possession), and Purchasers
shall be permitted to inspect and make copies of such Returns, audit reports,
work papers, statements and agreements.
(vii) None of the Corporate Entities does or, on or after the
Schedules Effective Date, did business in, or derives or, on or after the
Schedules Effective Date, derived a material amount of income from, any state,
local, territorial or foreign taxing jurisdiction other than those for which
Returns have been furnished to Purchasers.
(viii) Except for items disclosed on Schedule 5.11(a)(viii)
attached hereto:
(A) None of the Returns of any Corporate Entity has ever
been audited by a governmental or taxing authority and there are no audits,
inquiries, investigations or 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.
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(E) Except as provided on Schedule 5.11(a)(viii)
attached hereto, no Corporate Entity is a party to any tax sharing agreement,
tax indemnity agreement, tax allocation agreement, or similar arrangement with
any person.
(F) The amount of each Corporate Entity's liability for
unpaid Taxes for all periods ending on or before March 31, 1999, determined on a
GAAP basis (taking into account the Return Preparation Standard) does not exceed
the amount of the current liability accruals for Taxes (excluding reserves for
deferred Taxes) as of that date, and the amount of each Corporate Entity's
liability for unpaid Taxes for all periods ending on or before the Closing Date
determined on a GAAP basis (taking into account the Return Preparation Standard)
will not exceed the amount of the current liability accruals for Taxes
(excluding reserves for deferred Taxes) as such accruals will be reflected on
the balance sheet of the Corporate Entity as of the Closing Date except to the
extent any excess of such Taxes over the relevant current liability accrual
amount would not have a Material Adverse Effect.
(ix) Subject to the items disclosed on Schedule 5.11(a)(ix)
attached hereto:
(A) No Corporate Entity is required to treat any Asset
as owned by another person for federal income tax purposes or as tax-exempt bond
financed property or tax-exempt use property within the meaning of Section 168
of the Code. No Corporate Entity has made or is bound by any election under
section 197(f)(9)(B) of the Code.
(B) No election has been made under Section 338 of the
Code with respect to a Corporate Entity and no action has been taken that would
result in any income tax liability to a Corporate Entity as a result of a deemed
election within the meaning of Section 338 of the Code.
(C) No Corporate Entity has disposed of any property
that is currently being accounted for under the installment method.
(D) Within the last five years, no Corporate Entity has
agreed to make, and has not been required to make, any adjustment under Code
Section 481 by reason of a change in accounting method or otherwise.
(E) None of the assets or operations of any Corporate
Entity is subject to any joint venture, partnership or other arrangement or
contract that is treated as a partnership for federal income tax purposes,
excluding the assets and operations of the Partnership Entities.
(F) No Corporate Entity has made elections comparable to
those described in this Section under any state, local or foreign tax laws or is
required to apply any rules comparable to those described in this Section under
any state, local or foreign tax laws.
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(G) The transactions contemplated hereby are not subject
to the tax withholding provisions of Section 3406 of the Code, or of Subchapter
A of Chapter 3 of the Code, or of any other provision of law.
(b) Partnership Entities.
(i) All Returns required to be filed by or on behalf of any
Purchased Entity that is a limited partnership or limited liability company,
other than LLC-I and LLC-II (each a "Partnership Entity"), have been duly filed
on a timely basis and all Returns filed by or on behalf of each Partnership
Entity (including all attached statements and schedules) are true, complete and
correct in all respects, except for such failures to file and failures to be
true, complete and correct as would not, individually or in the aggregate, have
a Material Adverse Effect. No claim has been made or threatened in writing by
any jurisdiction where a Partnership Entity does not file returns that the
Partnership Entity is or may be subject to Taxes in that jurisdiction. All Taxes
shown to be payable on such Returns or on subsequent assessments with respect
thereto have been paid in full on a timely basis. No other Taxes are payable by
any Partnership Entity with respect to items or periods covered by such Returns
(whether or not shown on or reportable on such Returns) except for such Taxes as
would not, individually or in the aggregate, have a Material Adverse Effect.
(ii) Each Partnership Entity has withheld and paid over all
Taxes required to have been withheld and paid over (including any estimated
taxes), and has complied with all information reporting and backup withholding
requirements, including maintenance of required records with respect thereto, in
connection with amounts paid or owing to any employee, creditor, independent
contractor or other third party, except for such failures to withhold and pay
over and such failures to comply as would not, individually or in the aggregate,
have a Material Adverse Effect.
(iii) There are no Liens on any of the Assets of a Partnership
Entity with respect to Taxes, other than Liens for Taxes not yet due and payable
or for Taxes that are being contested in good faith through appropriate
proceedings and for which appropriate reserves have been established, except for
such Liens as would not, individually or in the aggregate, have a Material
Adverse Effect.
(iv) Except as set forth on Schedule 5.11(b)(iv) attached
hereto, Seller has furnished Purchasers with true and complete copies of all
Returns with respect to Income Taxes of each Partnership Entity (other than
Mountain Mobile) for all years with respect to which the statute of limitations
does not bar a tax assessment. Prior to Closing, Seller shall make available to
Purchasers, during normal business hours, true and complete copies of all other
Returns of each Partnership Entity (other than Mountain Mobile), all tax audit
reports, work papers, statements of deficiencies, closing or other agreements
received by a Partnership Entity (other than Mountain Mobile) or on its behalf
relating to Taxes, and Purchasers shall be permitted to inspect and make copies
of such Returns, audit reports, work papers, statements and agreements.
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(v) No Partnership Entity does business in or derives a
material amount of income from any state, local, territorial or foreign taxing
jurisdiction other than those for which Returns have been furnished to
Purchasers.
(vi) Each Partnership Entity has been properly classified as a
"partnership" for federal income tax purposes at all times since its formation.
(vii) Subject to items disclosed on Schedule 5.11(b)(vii)
attached hereto:
(A) None of the Returns of a Partnership Entity or of
any partner of a Partnership Entity, which partner is an Affiliate of Seller, in
its capacity as a partner in such Partnership Entity, has ever been audited by a
governmental or taxing authority and there are no audits, inquiries,
investigations or examinations relating to any such Returns pending or, to the
Knowledge of Seller, threatened in writing.
(B) No deficiencies exist or have been asserted in
writing with respect to Taxes of any Partnership Entity or of any partner of a
Partnership Entity, which partner is an Affiliate of Seller, in its capacity as
a partner in such Partnership Entity, and no written notice has been received by
a Partnership Entity or any such partner with respect to the failure to file any
Return or pay any Taxes.
(C) No Partnership Entity or any partner of a
Partnership Entity which partner is an Affiliate of Seller is a party to any
action or proceeding for assessment or collection of Taxes, nor has such action
or proceeding been asserted or threatened in writing against it or any of its
assets.
(D) No extension of time to file any Return (which has
not been filed) has been requested by or granted to a Partnership Entity. No
waiver or extension of any statute of limitations is in effect with respect to
Taxes or Returns of a Partnership Entity.
(E) No Partnership Entity is a party to any tax sharing
agreement, tax indemnity agreement, tax allocation agreement, or similar
arrangement with any person.
(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.
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(viii) Subject to the items disclosed on Schedule 5.11(b)(viii)
attached hereto:
(A) No Partnership Entity is required to treat any asset
as owned by another person for federal income tax purposes or as tax-exempt bond
financed property or tax-exempt use property within the meaning of section 168
of the Code. No Partnership Entity has made or is bound by any election under
Section 197(f)(9)(B) of the Code.
(B) No Partnership Entity has disposed of any property
that is currently being accounted for under the installment method.
(C) Within the last five years, no Partnership Entity
has agreed to make, and has not been required to make, any adjustment under Code
Section 481 by reason of a change in accounting method or otherwise.
(D) No Partnership Entity is a member of any joint
venture or partnership or a party to any other arrangement or contract that is
treated as a partnership for federal income tax purposes.
(E) No Partnership Entity has made elections comparable
to those described in this section under any state, local or foreign tax law or
is required to apply any rules comparable to those described in this section
under any state, local or foreign tax laws.
(F) The transactions contemplated hereby are not subject
to the tax withholding provisions of Section 3406 of the Code, or of Subchapter
A of Chapter 3 of the Code, or of any other provision of law.
(c) Other Matters.
(i) For federal income tax purposes, LLC-I and LLC-II are
each a single member entity that is a disregarded entity under applicable
Treasury Regulations (that is, for federal income tax purposes, LLC-I and LLC-II
each will be considered a division of HC, the only member of each, and will not
be treated as a separate entity).
(ii) On the day before the Closing Date, AEG will transfer
ownership of all of the stock of Ascent Development Corp. to HC, a wholly owned
subsidiary of AEG, and will cause Ascent Development Corp. to be merged into
LLC-II under applicable state law with LLC II surviving. The merger of Ascent
Development Corp. into LLC-II will qualify as a liquidation of Ascent
Development Corp. under Section 332 of the Code.
(iii) On the day before the Closing Date, AEG will transfer
ownership of all the stock of Ascent Sports to HC, a wholly owned subsidiary of
AEG, and will cause Ascent Sports to be merged into LLC-I under applicable state
law with LLC-I surviving. The merger of Ascent Sports into LLC-I will qualify as
a liquidation of Ascent Sports under Section 332 of the Code.
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5.12 Sports Entities.
(a) Absence of Certain Changes. Except as set forth in Schedule
5.12(a) attached hereto, since the Balance Sheet Date there has not been any
event, occurrence, or change in the Business of any of the Sports Entities
(including any uninsured damage, destruction or other casualty loss) or change
affecting such Business except as would not constitute a Material Adverse
Effect.
(b) Sports Entities Contracts.
(i) As of the Schedules Effective Date, Schedule 5.12(b)(i)
attached hereto contains an accurate and complete list of all Sports Entities
Contracts, including all amendments thereto and modifications thereof (whether
written or oral). Seller shall deliver to Purchasers an updated version of
Schedule 5.12(b)(i) on the Closing Date.
(ii) Seller has provided true and correct copies of the Sports
Entities Contracts to Sturm Sports. As of the Schedules Effective Date, each of
the Sports Entities Contracts is in full force and effect and is binding upon
and enforceable in accordance with its terms against the Sports Entities and, to
the Knowledge of Seller, each other party thereto subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general principles
of equity (whether or not such enforcement is considered in a Proceeding at law
or in equity). As of the Closing Date, each of the Sports Entities Contracts
will be in full force and effect and will be binding upon and enforceable in
accordance with its terms against the Sports Entities and, to the Knowledge of
Seller, each other party thereto subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting creditors' rights generally and (ii) general principles of equity
(whether or not such enforcement is considered in a Proceeding at law or in
equity), except for any failure to be in full force and effect or to be so
binding and enforceable as would not have a Material Adverse Effect.
(iii) Except as disclosed in Schedule 5.12(b)(i) with respect
to the Local Television License Agreement, there has not occurred any default,
event of default or, to the Knowledge of Seller any circumstance that with
notice of the passage of time, or both, would constitute a default or event of
default of the Sports Entities or, to the Knowledge of Seller, of any other
party to a Sports Entities Contract, except in either case for any defaults or
events of default that would not constitute a Material Adverse Effect.
(iv) Except as set forth in the Sports Entities Contracts
themselves, no Sports Entity has assigned any of its rights pursuant to any
Sports Entities Contract to any Person, and each applicable Sports Entity holds
its rights pursuant to the Sports Entities Contracts free and clear of any Lien.
(c) Arena Land.
(i) Nuggets LP has good and marketable title to the Arena
Land, subject to the Permitted Liens. Subject to the Permitted Liens, there are
no outstanding rights of
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first refusal, rights of reverter or options relating to the Arena Land or any
interest therein. To Seller's Knowledge, except as disclosed on Exhibit B, there
are no unrecorded or undisclosed documents or other matters which affect title
to the Arena Land. No person holding a security interest in the Arena Land or
any part thereof has the right to consent or deny consent to the sale of the
Arena Land as contemplated herein, other than the City Consent.
(ii) The current zoning of the Arena Land is PUD 440, which
permits the current improvements thereon (including, without limitation, the
Pepsi Center) and Seller's currently contemplated uses of the Arena Land, and
there is no pending or, to the Knowledge of Seller, contemplated rezoning.
(iii) To the Knowledge of Seller, there is no violation of any
Applicable Law or the VCUP relating to the Arena Land that would constitute a
Material Adverse Effect. Nuggets LP has not leased or subleased any parcel or
any portion of the Arena Land (other than pursuant to the Ground Lease) to any
other Person.
(iv) There are no condemnation proceedings or eminent domain
proceedings of any kind pending or, to the Knowledge of Seller, threatened
against the Arena Land.
(v) No improvements on the Arena Land and none of Seller's
currently contemplated uses violate, or will violate, in any material respect
any applicable deed restrictions or other applicable covenants, restrictions,
agreements, existing site plan approvals, zoning or subdivision regulations or
urban redevelopment plans as modified by any duly issued variances. No permits,
licenses or certificates pertaining to the ownership or operation of all
improvements on the Arena Land, other than those which are transferable with the
Arena Land, are required by any Governmental Authority having jurisdiction over
the Arena Land.
(vi) To the Knowledge of Seller, all improvements on the Arena
Land are wholly within the lot limits of the Arena Land and do not encroach on
any adjoining premises, and other than the Permitted Liens, there are no
encroachments on the Arena Land by any improvements located on any adjoining
premises.
(vii) Ascent Arena Company is the lessee of the Arena Land
pursuant to the Ground Lease. Neither Ascent Arena Company, as lessee, nor
Nuggets LP, as lessor, is in default under the Ground Lease, and there has not
occurred any event or circumstance that, with notice or the passage of time, or
both, would constitute a default under the Ground Lease.
(viii) The Purchased Entities, as applicable, have obtained and
currently hold all approvals, authorizations, certificates, consents, licenses,
orders, and permits or other similar authorizations of all Governmental
Authorities that are required to their stage of construction as of the Schedules
Effective Date under any Applicable Law to permit development of the Pepsi
Center on the Arena Land.
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(ix) All easements required or necessary as of the Schedules
Effective Date for Seller's intended use and development of the Arena Land and
the Pepsi Center have been conveyed.
(d) Tangible Assets. The Sports Entities own and have good title to
or, in the case of leased properties or properties held under license, a good
and valid leasehold or license interest in, all of their material Assets
reflected in the Financial Statements, Nuggets Balance Sheet and the Avalanche
Balance Sheet, except those Assets disposed of in the ordinary course of
business after the date thereof, free and clear of all Liens.
(e) Affiliate Contracts. As of the Schedules Effective Date, Schedule
5.12(e) attached hereto identifies all Sports Entities Contracts between any
Sports Entity, on the one hand, and any Affiliate of such Sports Entity, on the
other hand. Seller shall deliver to Purchasers an updated version of Schedule
5.12(e) on the Closing Date.
(f) Permits; Required Consents.
(i) Schedule 5.12(f)(i) attached hereto sets forth all
material certificates, licenses, orders and permits or other similar
authorizations of all Governmental Authorities (and all other Persons) necessary
for the operation of the Sports Entities and their respective Businesses in
substantially the same manner as currently operated (the "Sports Entities
Permits").
(ii) As of the Effective Date and the Closing Date, Schedule
5.12(f)(ii) attached hereto lists (A) each governmental or other registration,
filing, application, notice, transfer, consent, approval, order, qualification
and waiver (each, a "Sports Entities Required Governmental Approval") required
under Applicable Law to be obtained by the Sports Entities by virtue of the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby to avoid the loss of any material Sports Entities Permit,
and (B) each Sports Entities Contract with respect to which the consent of the
other party or parties thereto that must be obtained by the applicable Sports
Entity by virtue of the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby (each, a "Sports Entities
Required Contractual Consent" and collectively with the Sports Entities Required
Governmental Approvals, the "Sports Entities Required Consents"). Except as set
forth in Schedule 5.12(f)(i) attached hereto, each Sports Entities Permit is
valid and in full force and effect in all material respects and, assuming the
related Sports Entities Required Consents have been obtained prior to the
Closing Date, are, or will be, transferable by the applicable Sports Entity and
will be in full force and effect immediately after the Closing.
(g) Compliance with Laws. Except as set forth in Schedule 5.12(g)
attached hereto, the Sports Entities are operating their respective Businesses
in compliance in all material respects with all Applicable Laws, or any material
order, writ, injunction or decree of any Governmental Authority.
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5.13 Ascent Arena Entities.
(a) Denver Arena Trust. Ascent Arena Company has not received any
distributions of the Residual Interest or other amounts pursuant to the Trust
Agreement.
(b) Licenses. As of the Schedules Effective Date and to the Knowledge
of Seller, the Ascent Arena Entities hold all licenses, franchises,
authorizations, permits, and approvals (collectively, the "Licenses") which are
necessary for or material to construction, ownership, use, operation or
maintenance of the Pepsi Center which are required to their stage of
construction as of the Schedules Effective Date. As of the Closing Date, the
Ascent Arena Entities will hold all Licenses necessary for or material to
construction, ownership, use, operation or maintenance of the Pepsi Center which
are required to their stage of construction as of the Closing Date. No License
has been revoked or suspended, and to the Knowledge of Seller, no such
revocation or suspension is pending or threatened. To the Actual Knowledge of
Seller, the Licenses will be in full force and effect immediately after the
Closing.
(c) Title to Assets. The Ascent Arena Entities hold good title to all
of their respective material Assets reflected in the Financial Statements,
except those Assets disposed of in the ordinary course of business after the
date thereof, free and clear of all Liens.
(d) Advance Booking Contracts. As of the Schedules Effective Date,
Schedule 5.13(d) attached hereto sets forth all material advance bookings for
events or entertainment at the Pepsi Center (collectively, the "Advance Booking
Contracts"). Seller shall deliver to Purchasers an updated version of Schedule
5.13(d) on the Closing Date.
(e) Ascent Arena Entity Contracts. Except for the Contracts disclosed
in Schedule 5.13(d) and the Arena Contracts identified in Article I, Schedule
5.13(e) attached hereto contains, as of the Schedules Effective Date, an
accurate and complete list of all material Contracts to which any Ascent Arena
Entity is a party or by which it is bound. Seller shall deliver to Purchasers an
updated version of Schedule 5.13(e) on the Closing Date.
5.14 Pepsi Center.
(a) Construction Issues.
(i) Seller has made available to Sturm 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").
(ii) The budget for development, construction and financing of
the Pepsi Center and Development Property is attached to this Agreement as
Exhibit C (the "Construction Budget"). Exhibit C sets forth, as of March 31,
1999, (A) the total amounts incurred, reserved or paid, (B) the total estimated
amounts which are not yet paid in connection with construction of the Pepsi
Center, and (C) the balance of funds in the Construction Fund Account (the
"Construction Account Balance").
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(iii) Interim lien waivers have been obtained from the
Architect, Construction Contractor and all subcontractors, materialmen and
suppliers performing any work or supplying any materials with respect to the
Pepsi Center, pursuant to which each such Person has waived all lien rights and
claims with respect to all interim payments made to such Person. Neither Seller
nor any of its Affiliates have received a notice of intent to file a lien
against the Arena Land or the Pepsi Center, and no mechanics' lien or claim of
lien has been asserted or threatened against the Arena Land or the Pepsi Center
that has not been resolved as of the Schedules Effective Date.
(iv) All portions of the Pepsi Center constructed as of the
Schedules 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 Schedules Effective Date and
as of the Closing have been constructed substantially in accordance with the
Plans and Specifications, and other than as disclosed in the Construction
Reports, there are no structural defects in those portions of the Pepsi Center
which have been constructed.
(v) Utility service lines and connections necessary to
provide water, sewer, gas, electricity and telephone service to the Pepsi Center
at levels sufficient to support its construction, operation, use and maintenance
in accordance with the Arena Agreement are being or will be installed and
available for use by the completion of the Pepsi Center.
(vi) The Plans and Specifications have been approved by all
governmental authorities, design review committees and similar entities whose
approval of construction or use of the Pepsi Center is required prior to or at
the current stage of construction under any Applicable Law, covenant, condition,
restriction or reservation. All such approvals remain effective, and, to the
Knowledge of Seller, there exist no violations of such approvals or conditions
of such approvals which have not been satisfied.
(vii) Attached hereto as Exhibit D is a true and correct copy
of the Construction Contractor's Critical Path Report received by Seller on
April 17, 1999 from Construction Contractor. To the Knowledge of Seller, Exhibit
D sets forth a complete and accurate statement of the status of construction of
the Pepsi Center as of April 17, 1999.
(viii) Except as disclosed in the Construction Reports or
Exhibit D, the Construction Contractor has not notified Seller or any of its
Affiliates that (A) the target completion date for the construction of the Pepsi
Center will not be met; (B) a force majeure event has occurred with respect to
the Construction Contractor's performance, or (C) any defect or deficiency
exists in any portion of the Pepsi Center which has been constructed.
(ix) As of the Effective Date, there is no pending or, to the
Knowledge of Seller, threatened labor dispute, strike or work stoppage with
respect to construction of the Pepsi Center.
(x) All supplies and materials to be incorporated into the
Pepsi Center or used in constructing the Pepsi Center, and which have been paid
for or for which Ascent
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Arena Company is obligated to pay, are stored at the Arena Land, except as
otherwise permitted pursuant to the Construction Phase Agreement.
(b) Arena Contracts.
(i) Seller has provided Sturm Arena with true and complete
copies of the Arena Contracts. Each of the Arena Contracts is in full force and
effect and is binding upon and enforceable in accordance with its terms against
the Ascent Arena Entities and, to the Knowledge of Seller, each other party
thereto subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting creditors' rights
generally and (ii) general principles of equity (whether or not such enforcement
is considered in a Proceeding at law or in equity).
(ii) [Intentionally omitted.]
(iii) Except as disclosed on Schedule 5.14(b)(iii), there has
not occurred any material default, event of default or circumstance that with
notice or the passage of time, or both, would constitute a material default or
material event of default of any Ascent Arena Entities under any Arena Contract
or, to the Knowledge of Seller, any material default or material event of
default of any other party to an Arena Contract.
(iv) Except as set forth in the Arena Contracts themselves, no
Ascent Arena Entity has assigned any of its rights pursuant to any Arena
Contract to any Person, other than pursuant to the City Lien and the Trustee's
Lien, and each Ascent Arena Entity holds its rights pursuant to the Arena
Contracts, free and clear of any Lien.
(v) Except as set forth in Schedule 5.14(b)(v) attached
hereto, Ascent Arena Company has not delegated any of its duties pursuant to the
Sale and Servicing Agreement, other than pursuant to the subservicing portions
of the Operating and Management Agreement.
(vi) Seller has delivered to Sturm 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.
(vii) Fees payable to Ascent Arena Company pursuant to the Sale
and Servicing Agreement have not been prepaid, and Ascent Arena Company is
entitled to receipt of such fees as provided in the Sale and Servicing
Agreement.
(viii) Other than as set forth in the Arena Contracts, no
prepayments have been made under any Arena Contract.
(ix) A true and correct copy of the current annual operating
budget for the Pepsi Center prepared pursuant to the Operating and Management
Agreement was delivered to Sturm 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
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reasonable assumptions in light of current circumstances regarding the operation
of the Pepsi Center under Seller's indirect ownership.
(x) Seller has no Knowledge of any event or circumstance that
would limit or impair in any material respect DURA's obligation or ability to
honor its reimbursement or payment obligations pursuant to the Redevelopment
Agreement.
(c) Accounts. As of June 21, 1999, the balances of the Accounts are
as set forth on Schedule 5.14(c) attached hereto. All required deposits into and
transfers among the Accounts have been made in compliance with the Sale and
Servicing Agreement.
5.15 Mountain Mobile.
(a) No Defaults. To the Actual Knowledge of Seller, Mountain Mobile
is not in default of any obligation to any Person pursuant to any Contract which
default would have a Material Adverse Effect.
(b) No Additional Capital Contributions or Loans. By virtue of
becoming a member of Mountain Mobile, Sturm 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 Sturm Sports pursuant to this Agreement.
(c) Compliance with Laws. Except as set forth in Schedule 5.15(c)
attached hereto, to the Actual Knowledge of Seller, Mountain Mobile has operated
its Business in compliance in all material respects with all Applicable Laws, or
any material order, writ, injunction or decree of any Governmental Authority.
5.16 Development Property.
(a) As of the Closing, LLC-II will have good and marketable title to
the Development Property subject only to the Permitted Liens. There are no
outstanding rights of first refusal, rights of reverter or options relating to
the Development Property or any interest therein other than the Permitted Liens.
To the Knowledge of Seller, there are no unrecorded or undisclosed documents or
other matters which affect title to the Development Property (other than
Permitted Liens). Neither Ascent Development Corp. nor LLC-II has leased or
subleased any parcel or any portion of any parcel of the Development Property to
any other Person other than pursuant to the Conoco Lease.
(b) To the Knowledge of Seller, neither Ascent Development Corp. nor
LLC-II has committed any violation of any Applicable Law (including, without
limitation, any building, planning or Applicable Law related to zoning and all
approvals, authorizations, certificates, consents, licenses, orders, and permits
or other similar authorizations of all Governmental Authorities (and all other
Persons) required under VCUP and any other Environmental Law) relating to any of
the Development Property, other than such violations that would not have a
Material Adverse Effect.
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(c) There are no condemnation proceedings or eminent domain
proceedings of any kind pending or, to the Knowledge of Seller, threatened
against any of the Development Property.
(d) Other than pursuant to the Conoco Lease, the Development Property
is vacant, unimproved land having a zoning classification of PUD 440 pursuant to
Applicable Law related to zoning.
(e) To the Knowledge of Seller, other than Permitted Liens, there are
no encroachments onto the Development Property by any improvements located on
any adjoining premises, including without limitation the Arena Land.
5.17 Advisory Fees. No Seller has retained or authorized any
investment banker, broker, finder or other intermediary or advisor to act on
behalf of Seller or any of its respective Affiliates in connection with the
Transactions contemplated by this Agreement, except for the Financial Advisors
as financial advisors to Seller. Seller shall be solely responsible for all
costs and expenses due the Financial Advisors.
5.18 Operations Since Schedules Effective Date. From the Schedules
Effective Date through the Effective Date, AEG has performed and complied in all
material respects with all of the terms of Sections 3.1 and 3.2 of this
Agreement as if AEG were required to perform and comply with such terms during
such period.
5.19 No Other Representations or Warranties. The Purchasers
acknowledge that Seller has not made and does not make, and the Purchasers have
not relied on, any representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Article V.
ARTICLE V-A.
REPRESENTATIONS AND WARRANTIES OF LDA
As an inducement to enter into this Agreement, LDA represents and
warrants to Purchasers that the following matters are true and correct as of the
Effective Date and as of the Closing Date unless limited to a specific date.
5A.1 General Limited Liability Company Matters.
(a) Organization and Standing. LDA
(i) is a limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation;
(ii) has full power and authority to own its Ascent Arena
Company Membership Interest; and
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(iii) is qualified or licensed to do business in all
jurisdictions where its ownership of its assets or the conduct of its business
requires such qualification or licensing, except where the failure to be so
qualified or licensed would not have a material adverse effect on LDA.
(b) Organizational Documents. LDA has delivered, or will have
delivered prior to the Closing, to the Purchasers true and complete copies of
its Organizational Documents.
(c) Corporate Power; Authorization; No Contravention; Consents.
(i) LDA has all requisite legal and limited liability company
power to enter into this Agreement and to carry out and perform its obligations
under the terms of this Agreement.
(ii) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary limited liability company action on the part of LDA,
and no other limited liability company proceedings or action on the part of LDA
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby.
(iii) The execution, delivery, and performance by LDA of this
Agreement will not:
(A) conflict with or violate any of LDA's Organizational
Documents; or
(B) conflict with or violate any Applicable Laws (other
than such conflicts or violations that would not have a material adverse effect
on LDA); or
(C) result in the creation of any Lien on LDA's Ascent
Arena Company Membership Interest, other than any Lien created under this
Agreement; or
(D) require any consent or approval of any third party,
the failure of which to obtain would have a material adverse effect on LDA,
other than any consent of the NBA or the NHL which may be required to consummate
the transactions contemplated in this Agreement.
(d) Binding Effect. This Agreement constitutes a legal, valid and
binding obligation of LDA, enforceable against LDA in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability.
(e) Governing Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or registration, declaration or
filing with, any Governmental Authority is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, LDA of
this Agreement, other than:
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(i) compliance with any applicable requirements of the HSR
Act with respect to the consummation of the transactions contemplated hereby;
(ii) compliance with the registration requirements of the
Securities Act, or an exemption therefrom, and any applicable state blue sky
laws and the Securities Exchange Act of 1934; and
(iii) as set forth in this Agreement.
5A.2 Title to LDA's Ascent Arena Company Membership Interest.
(a) LDA will have, as of the Closing Date, good title to the LDA
Ascent Arena Company Membership Interest, free and clear of all Liens other than
those created by this Agreement or those created under the Ascent Operating
Agreement.
(b) Except as set forth in the Ascent Operating Agreement, there are
no existing Contracts or rights of any character with respect to the purchase,
redemption or acquisition of LDA's Ascent Arena Company Membership Interest,
existing or contingent, at any time, or upon the happening of the stated event.
5A.3 Advisory Fees. LDA has not retained or authorized any
investment banker, broker, finder or other intermediary or advisor to act on
behalf of LDA or any of its Affiliates in connection with the transactions
contemplated by this Agreement.
5A.4 No Other Representations or Warranties. The Purchasers
acknowledge that LDA has not made and does not make, and the Purchasers have not
relied on, any representation or warranty, whether express or implied, or any
kind or character except as expressly set forth in this Article V-A.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
As an inducement to Seller to enter into this Agreement, the
Purchasers, as applicable, each 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.
6.1 Existence and Power. Each of the Purchasers is a limited
liability company duly formed, validly existing and in good standing under the
laws of the State of Delaware, 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 the Purchasers 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 the Purchasers, respectively. This Agreement constitutes a legal, valid
and binding agreement of each of the Purchasers, enforceable in accordance with
its terms.
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6.2 Governmental Authorization. The execution, delivery and
performance by the Purchasers of this Agreement require no action by, consent or
approval of, or filing with, any Governmental Authority other than:
(a) compliance with any applicable requirements of the HSR Act with
respect to the consummation of the transactions contemplated hereby;
(b) compliance with the registration requirements of the Securities
Act, or an exemption therefrom, and any applicable state blue sky laws; and
(c) as set forth in this Agreement.
6.3 Non-Contravention. The execution, delivery and performance by the
Purchasers of this Agreement does not and will not (a) contravene or conflict
with the limited liability company agreements of the Purchasers, (b) contravene
or conflict with or constitute a violation of any Applicable Law binding upon or
applicable to the Purchasers, or (c) constitute a default under any contract,
agreement or other commitment to which the Purchasers is a party or by which it
is bound.
6.4 Securities Matters.
(a) The Equity Interests are being acquired for the Purchasers' own
accounts, for investment and not with a view to, or for resale in connection
with, any distribution or public offering thereof within the meaning of the
Securities Act.
(b) The Purchasers understand that the Equity Interests have not been
registered under the Securities Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act pursuant to Section 4(2) thereof, that Seller has no present
intention of registering the Equity Interests, that the Equity Interests must be
held by the Purchasers indefinitely, and that the Purchasers must therefore bear
the economic risk of such investment indefinitely, unless a subsequent
disposition thereof is registered under the Securities Act or is exempt from
registration.
(c) During the negotiation of the transactions contemplated herein,
the Purchasers and their representatives have been furnished with and have had
access to such information as the Purchasers have considered necessary to make a
determination as to the purchase of the Equity Interests, have been afforded an
opportunity to ask such questions of Seller and the Purchased Entities'
officers, employees and representatives concerning the Purchased Entities'
business, operations, financial condition, assets, liabilities and other
relevant matters as they have deemed necessary or desirable, and have been given
all such information as has been requested, in order to evaluate the merits and
risks of the prospective investments contemplated herein.
(d) The Purchasers and their representatives have been solely
responsible for the Purchasers own due diligence investigation of the Purchased
Entities and its management and business, for their own analysis of the merits
and risks of this investment, and for their own
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analysis of the fairness and desirability of the terms of the investment. In
taking any action or performing any role relative to the arranging of the
proposed investment, the Purchasers have acted solely in their own interest, and
none of the Purchasers (or any of their agents or employees) has acted as an
agent of Seller.
(e) Each Purchaser (i) has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risk of such
Purchaser's prospective investment in the Equity Interests; (ii) has the ability
to bear the economic risks of such Purchaser's prospective investment, including
a complete loss of Purchaser's investment in the Equity Interests; and (iii) has
not been offered the Equity Interests by any form of advertisement, article,
notice or other communication published in any newspaper, magazine, or similar
media or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any such media.
6.5 Advisory Fees. Except for Morgan Stanley & Co., Incorporated
("Morgan"), 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.
Purchasers shall be solely responsible for all fees, commissions, costs and
expenses due to Morgan.
6.6 Litigation. There is no proceeding pending or to the knowledge of
Sturm Sports and Sturm Arena, threatened against or affecting Sturm Sports or
Sturm Arena before any court or arbitrator or any governmental body, agency or
official, that in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement.
6.7 Beneficial Ownership.
(a) The Persons who "beneficially own" (within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended) any interests in
the Purchasers (such Persons collectively referred to as the "Principals", and
individually as a "Principal"), and the amount of such interests each such
Principal "beneficially owns," are set forth on Schedule 6.7(a) attached hereto.
No other Person not listed on Schedule 6.7(a) has or will have as of the Closing
Date any right, contract, agreement, arrangement or understanding with respect
to any interests in the Purchasers.
(b) The Purchasers and the Principals understand and acknowledge that
each of the City, the NBA and the NHL have various requirements regarding the
suitability of owners of, respectively, the Arena Company, an NBA franchise and
an NHL franchise, and the Purchasers and the Principals are familiar with such
requirements. To the Knowledge of Purchasers and the Principals, no Person
listed on Schedule 6.7(a) has: (i) ever had a petition under the Federal
bankruptcy laws or any state bankruptcy or insolvency laws filed by or against
such Person or any partnership in which such Person was a general partner at the
time of or within two years prior to such filing, any limited liability company
in which such Person was a
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member at the time of or within two years prior to such filing, or any
corporation or business association of which such Person was an executive
officer or director at the time of or within two years prior to such filing;
(ii) has been convicted in a criminal proceeding or been named subject of a
pending criminal proceeding (excluding minor traffic violations or other minor
offenses); (iii) been the subject of any order, judgment, or decree not
subsequently reversed, suspended or vacated, of any Governmental Authority,
permanently or temporarily enjoining such Person from, or otherwise, limiting
such Person from, engaging in any type of business activity; (iv) ever had any
ties to or relationships with organized crime or any Persons involved in
organized crime, or (v) engaged in any illegal, unethical or inappropriate
conduct that could reasonably be expected to serve as a basis for any of the
City, the NBA or the NHL to not approve Purchasers or any Principals as an owner
of, respectively, the Arena Company, the Nuggets or the Avalanche. Additionally,
each of the Principals has a net worth and financial liquidity that are
reasonably expected to meet the requirements of the City, the NBA and the NHL.
6.8 No Other Representations. Seller acknowledges that the Purchasers
and the Principals have not made and do not make, and or Warranties Seller has
not relied on, any representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Article VI.
6.9 Financial Matters. Purchasers have, or at Closing will have,
sufficient funds available to consummate the transactions contemplated by this
Agreement.
ARTICLE VI-A.
REPRESENTATIONS AND WARRANTIES OF STURM ARENA
As an inducement to LDA to enter into this Agreement, Sturm Arena
represents, warrants and covenants to LDA, that the following matters are true
and correct as of the Effective Date and as of the Closing Date unless limited
to a specific date.
6A.1 Organization and Standing. Sturm Arena is a limited liability
company duly formed, validly existing and in good standing under the laws of the
State of Delaware, and will be duly registered in and authorized by the State of
Colorado to transact business in the State of Colorado as of the Closing Date.
6A.2 Authorization. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary limited liability company action on the
part of Sturm Arena, and no other limited liability company proceedings or
action on the part of Sturm Arena are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby.
6A.3 Binding Effect. This Agreement constitutes a legal, valid and
binding obligation of Sturm Arena, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
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6A.4 Governmental Authorization. The execution, delivery and
performance by Sturm Arena of this Agreement require no action by, consent or
approval of, or filing with, any Governmental Authority other than as set forth
in Section 6.2.
6A.5 Non-Contravention. The execution, delivery and performance by
Sturm Arena of this Agreement do not and will not (a) contravene or conflict
with any Organizational Document of Sturm Arena, (b) contravene or conflict with
or constitute a violation of any Applicable Law binding upon or applicable to
Sturm Arena, or (c) constitute a default under any Contract, agreement or other
commitment to which Sturm Arena is a party or by which it is bound.
6A.6 Advisory Fees. Except as set forth in Section 6.5, Sturm Arena
has not retained or authorized any investment banker, broker, finder or other
intermediary or advisor to act on behalf of Sturm Arena or any of its Affiliates
in connection with the transactions contemplated by this Agreement. Purchasers
shall be solely responsible for all fees, commissions, costs and expenses due to
Morgan.
6A.7 No Other Representations or Warranties. LDA acknowledges that
the Purchasers and the Principals have not made and do not make, and LDA has not
relied on, any representation or warranty, whether express or implied, of any
kind or character except as expressly set forth in this Article VI-A.
6A.8 Financial Matters. Purchasers have, or at Closing will have,
sufficient funds available to consummate the transactions contemplated by this
Agreement.
6A.9 Securities Matters.
(a) The LDA Ascent Arena Company Membership Interest is being
acquired for Sturm Arena's own account, for investment and not with a view to,
or for resale in connection with, any distribution or public offering thereof
within the meaning of the Securities Act.
(b) Sturm Arena understands that the LDA Ascent Arena Company
Membership Interest has not been registered under the Securities Act by reason
of its issuance in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act pursuant to Section 4(2) thereof,
that LDA has no present intention of registering the LDA Ascent Arena Company
Membership Interest, that the LDA Ascent Arena Company Membership Interest must
be held by Sturm Arena indefinitely, and that Sturm Arena must therefore bear
the economic risk of such investment indefinitely, unless a subsequent
disposition thereof is registered under the Securities Act or is exempt from
registration.
(c) During the negotiation of the transactions contemplated herein,
Sturm Arena and its representatives have been furnished with and have had access
to such information as Sturm Arena has considered necessary to make a
determination as to the purchase of the LDA Ascent Arena Company Membership
Interest, has been afforded an opportunity to ask such questions of LDA and the
Purchased Entities' officers, employees and representatives concerning
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the Purchased Entities' business, operations, financial condition, assets,
liabilities and other relevant matters as it has deemed necessary or desirable,
and has been given all such information as has been requested, in order to
evaluate the merits and risks of the prospective investments contemplated
herein.
(d) Sturm Arena and its representatives have been solely
responsible for Sturm Arena's own due diligence investigation of the Purchased
Entities and its management and business, for its own analysis of the merits and
risks of this investment, and for its own analysis of the fairness and
desirability of the terms of the investment. In taking any action or performing
any role relative to the arranging of the proposed investment, Sturm Arena has
acted solely in its own interest, and Sturm Arena (or any of its agents or
employees) has not acted as an agent of LDA.
(e) Sturm Arena (i) has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risk of Sturm Arena's prospective investment in the LDA Ascent Arena Company
Membership Interest; (ii) has the ability to bear the economic risks of its
prospective investment, including a complete loss of Sturm Arena's investment in
the LDA Ascent Arena Company Membership Interest; and (iii) has not been offered
the LDA Ascent Arena Company Membership Interest by any form of advertisement,
article, notice or other communication published in any newspaper, magazine, or
similar media or broadcast over television or radio, or any seminar or meeting
whose attendees have been invited by any such media.
6A.10 Beneficial Ownership.
(a) The Principals and the amount of such interests each such
Principal "beneficially owns," are set forth on Schedule 6.7(a) attached hereto.
No other Person not listed on Schedule 6.7(a) has or will have as of the Closing
Date any right, contract, agreement, arrangement or understanding with respect
to any interests in the Purchasers.
(b) The Purchasers and the Principals understand and acknowledge
that each of the City, the NBA and the NHL have various requirements regarding
the suitability of owners of, respectively, the Arena Company, an NBA franchise
and an NHL franchise, and the Purchasers and the Principals are familiar with
such requirements. To the Knowledge of Purchasers and the Principals, no Person
listed on Schedule 6.7(a) has: (i) ever had a petition 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)
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ever had any ties to or relationships with organized crime or any Persons
involved in organized crime, or (v) engaged in any illegal, unethical or
inappropriate conduct that could reasonably be expected to serve as a basis for
any of the City, the NBA or the NHL to not approve Purchasers or any Principals
as an owner of, respectively, the Arena Company, the Nuggets or the Avalanche.
Additionally, each of the Principals has a net worth and financial liquidity
that are reasonably expected to meet the requirements of the City, the NBA and
the NHL.
ARTICLE VII.
CONDITIONS TO CLOSING
7.1 Conditions to Obligations of Purchasers. The obligations of
Purchasers to consummate the Closing are subject to the satisfaction, or waiver
by Purchasers, of each of the following conditions:
(a) Seller shall have performed and complied in all material respects
with all of the terms of this Agreement to be performed and complied with by
Seller prior to or at Closing.
(b) All of the representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects as of the Closing
Date, except for those representations and warranties which are made as of a
specific date, which shall be true and correct as of such date, and except for
(i) the representations and warranties in subsections (a)(ix)(A), (E), (F), (G)
and (b)(viii)(A), (B), (C), (D) and (E) of Section 5.11 which are not conditions
to Closing, (ii) the representations and warranties in subsection 5.12(a), which
shall be true and correct in all material respects as of August 12, 1999;
provided, however, that if the representations and warranties in subsection
5.12(a) are not true and correct in all material respects as of the Closing Date
as a result of any breach by the Seller under this Agreement then the closing
condition set forth in this subsection 7.1(b) shall not be satisfied.
(c) Seller shall have delivered to Purchasers a certificate signed by an
authorized officer stating that, as of the Closing Date, the conditions set
forth in Sections 7.1(a) and 7.1(b) have been satisfied.
(d) No temporary restraining order, preliminary or permanent injunction,
stay, cease and desist order or other order issued by any court of competent
jurisdiction or any competent Governmental Authority prohibiting the
consummation of the Closing shall be in effect.
(e) An opinion of Wachtell, Lipton, Rosen & Katz, special counsel to
Seller, and the General Counsel of Seller, substantially in the form set forth
in Exhibit E, shall have been delivered to Purchasers.
(f) All material Sports Entities Required Governmental Approvals shall
have been obtained without the imposition of any conditions that would result in
a Material Adverse
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Effect. All such Sports Entities Required Governmental Approvals shall be in
effect, all applicable waiting periods with respect to such Sports Entities
Required Governmental Approvals shall have expired, and all conditions and
requirements prescribed by Applicable Law or by such Sports Entities Required
Governmental Approvals to be satisfied on or prior to the Closing Date shall
have been satisfied to the extent necessary such that all such Sports Entities
Required Governmental Approvals are in full force and effect as of the Closing.
(g) All Sports Entities Required Contractual Consents shall have been
obtained without the imposition of any conditions that would constitute a
Material Adverse Effect. All such Sports Entities Required Contractual Consents
shall be effective, and all conditions and requirements prescribed by any such
Sports Entities Required Contractual Consent to be satisfied on or prior to the
Closing Date shall have been satisfied to the extent necessary such that all
such Sports Entities Required Contractual Consents are effective and
enforceable, except as would not constitute a Material Adverse Effect.
(h) The written consent of the NBA and the NHL to the sale of the LLC-I
Membership Interests (if required), the membership interests of Avalanche LLC
and of the AEG Nuggets LP Partnership Interests 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. Each of Sturm Sports and Sturm Nuggets 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 each of Sturm Sports and Sturm Nuggets.
(i) The City Consent shall have been obtained without the imposition of
any conditions that would result in a Material Adverse Effect.
(j) If compliance with the HSR Act is required, the waiting period
applicable to the consummation of the transactions contemplated by this
Agreement under the HSR Act shall have expired or been terminated.
(k) 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.
(l) 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.
(m) Purchasers must have received evidence satisfactory to it that all
Liabilities of any Purchased Entity to Seller have been forgiven and discharged,
excluding only
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the Ascent Entertainment Assignment and $2.25 million payable to AEG from Pepsi
(as disclosed in Schedule 3.6).
(n) Purchasers must have received current certificates of good standing
from the Delaware Secretary of State with regard to AEG, LLC-I, Nuggets LP, LLC-
II, and Denver Arena Trust.
(o) 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.
(p) 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.
(q) All documents required to be delivered under Article IV must have
been delivered.
(r) LDA shall have performed and complied in all material respects with
all of the terms of this Agreement to be performed and complied with by LDA
prior to or at Closing.
(s) All of the representations and warranties of LDA contained in this
Agreement shall be true and correct in all material respects as of the Closing
Date, except for those representations and warranties which are made as of a
specific date, which shall be true and correct as of such date.
(t) LDA shall have delivered to Purchasers a certificate signed by an
authorized officer stating that, as of the Closing Date, the conditions set
forth in Section 7.1(r) and 7.1(s) have been satisfied.
7.2 Conditions to Obligations of Seller. The obligations of Seller to
consummate the Closing are subject to the satisfaction, or waiver by Seller, of
each of the following conditions:
(a) Purchasers must have performed and complied in all material respects
with all of the terms of this Agreement to be performed and complied with by
Purchasers prior to or at Closing.
(b) The representations and warranties of Purchasers contained in this
Agreement must be true and correct in all material respects as of the Closing
Date.
(c) No temporary restraining order, preliminary or permanent injunction,
stay, cease and desist order or other order issued by any court of competent
jurisdiction or any
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competent Governmental Authority prohibiting the consummation of the Closing
shall be in effect.
(d) The NBA shall have released AEG from any guaranty of Nuggets LP's
obligations under the Agreement and Undertaking, dated as of June 27, 1997,
between the NBA, Seller and Nuggets LP.
(e) The NHL shall have released AEG from any guaranty of Avalanche LLC's
obligations under the Consent Agreements, dated as of July 1, 1995 and June 27,
1997, between the NHL, Seller, and Avalanche LLC.
(f) AEG shall have been released from its guaranty to the City of
performance by Ascent Arena Company, Nuggets LP and Avalanche LLC pursuant to
the Arena Agreement.
(g) Purchasers shall have acknowledged in writing that all Liabilities of
AEG to any Purchased Entity shall have been forgiven and discharged, excluding
only the Liabilities created by this Agreement.
(h) All material Sports Entities Required Governmental Approvals shall
have been obtained without the imposition of any conditions that would result in
a Material Adverse Effect. All such Sports Entities Required Governmental
Approvals shall be in effect, all applicable waiting periods with respect to
such Sports Entities Required Governmental Approvals shall have expired, and all
conditions and requirements prescribed by Applicable Law or by such Sports
Entities Required Governmental Approvals to be satisfied on or prior to the
Closing Date shall have been satisfied to the extent necessary such that all
such Sports Entities Required Governmental Approvals are in full force and
effect as of the Closing.
(i) All Sports Entities Required Contractual Consents shall have been
obtained without the imposition of any conditions that would constitute a
Material Adverse Effect. All such Sports Entities Required Contractual Consents
shall be in effect, all conditions and requirements prescribed by any such
Sports Entities Required Contractual Consent to be satisfied on or prior to the
Closing Date shall have been satisfied to the extent necessary such that all
such Sports Entities Required Contractual Consents are effective and
enforceable, except as would not constitute a Material Adverse Effect.
(j) The written consent of the NBA and the NHL to the sale of the LLC-I
Membership Interests (if required), the membership interests of Avalanche LLC
and of the AEG Nuggets LP Partnership Interests 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.
(k) The City Consent shall have been obtained without the imposition of
any conditions that would result in a Material Adverse Effect.
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(l) If compliance with the HSR Act is required the waiting period
applicable to the consummation of the transactions contemplated by this
Agreement under the HSR Act shall have expired or been terminated.
7.3 Conditions to Obligation of LDA. The obligation of LDA to consummate
the transactions contemplated by this Agreement at Closing is subject to the
satisfaction, or waiver by LDA, of each of the following conditions:
(a) Sturm Arena shall have performed and complied in all material
respects with all of the terms of this Agreement to be performed and complied
with by Sturm Arena in connection with the purchase and sale of LDA's Ascent
Arena Company Membership Interest prior to or at Closing.
(b) All of the representations and warranties of Sturm Arena contained in
Article VI-A of this Agreement shall be true and correct in all material
respects as of the Closing Date.
(c) Sturm Arena shall have delivered to LDA a certificate signed by an
authorized officer stating that, as of the Closing Date, the conditions set
forth in Section 7.3(a) and 7.3(b) have been satisfied.
(d) No temporary restraining order, preliminary or permanent injunction,
stay, cease or desist order or other order issued by any court of competent
jurisdiction or any Governmental Authority prohibiting the consummation of the
Closing shall be in effect.
(e) All conditions to the obligation of Seller and Purchasers to
consummate the transactions contemplated by this Agreement shall have been
satisfied or, to the extent that such waiver would not have a material adverse
effect on LDA or any Affiliate of LDA, waived.
ARTICLE VIII.
INDEMNIFICATION AND DISPUTE RESOLUTION
8.1 Indemnification of Purchasers by Seller.
(a) From and after the Closing Date, subject to the limitations on
indemnification contained in this Article VIII, Purchasers and each of their
respective Affiliates, officers, directors, employees, agents, successors and
assigns (each a "Purchaser Indemnitee") shall be indemnified and held harmless
by Seller for any and all Damages, Liabilities, claims, demands, actions, causes
of action, and assessments actually suffered or incurred by them (including,
without limitation, any Proceeding brought or otherwise initiated by any of
them) (hereinafter a "Loss"), arising out of or resulting from:
(i) the breach of any representation or warranty made by Seller
contained in this Agreement (other than representations and warranties in
Section 5.11, which
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shall be separately addressed in Section 10.5(d)), 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);
(ii) the breach of any covenant or agreement by Seller contained
in this Agreement (other than covenants or agreements in Section 10.5, which
shall be separately addressed in Section 10.5), unless waived by Purchasers
(with Purchasers being deemed to have waived if Purchasers have actual knowledge
of such breach and nonetheless chose to consummate the transactions contemplated
hereby).
(b) Notwithstanding any other provisions of this Section 8.1 and except
as otherwise set forth herein, Seller shall not be required to make any
indemnification payment for Losses unless and until the aggregate amount of all
Losses arising under Section 8.1 exceed $1,500,000 with respect to Avalanche LLC
and $3,500,000 with respect to Nuggets LP, Ascent Sports, the Development
Property, Mountain Mobile and the Ascent Arena Entities, taken as a whole,
(each, a "Basket"), at which point Seller shall indemnify the Purchaser
Indemnitees for all Losses in excess of the Basket; provided, however, that (i)
only individual claims in excess of $50,000 will be counted toward the Basket
amounts, and (ii) Purchasers shall not be entitled to indemnification hereunder
for any claims under $50,000, whether or not the Basket has been exceeded.
Except as otherwise set forth herein, the maximum aggregate liability of Seller
to all Purchaser Indemnitees for all Losses shall be limited to $13,500,000 with
respect to the Avalanche, and $31,500,000 with respect to Nuggets LP, Ascent
Sports, the Development Property, Mountain Mobile and the Ascent Arena Entities.
No claim for indemnification for a Loss arising under this Section 8.1 may be
brought after the expiration of the applicable period set forth in Section
11.11. If written notice of a claim has been given prior to the expiration of
the applicable survival period set forth in Section 11.11, then the relevant
representations and warranties shall survive solely as to such claim until the
claim has been finally resolved.
8.2 Indemnification of Seller. From and after the Closing Date, Seller
and each of its respective Affiliates, officers, directors, employees, agents,
successors and assigns (each a "Seller Indemnitee") shall be indemnified and
held harmless by Purchasers for any Loss arising out of or resulting from:
(a) the breach of any representation or warranty made by Purchasers
contained in this Agreement; or
(b) the breach of any covenant or agreement by Purchasers contained in
this Agreement.
8.3 Indemnification by LDA of Sturm Arena .
(a) From and after the Closing Date, subject to the limitations on
indemnification contained in this Section 8.3, Sturm Arena and each of its
Affiliates, officers, directors, employees, agents, successors and assigns (each
a "Sturm Arena Indemnitee") shall be indemnified and held harmless by LDA for
any and all Losses arising out of or resulting from the breach of any
representation or warranty made by LDA contained in this Agreement, unless
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waived by Sturm Arena (with Sturm Arena being deemed to have waived if Sturm
Arena had actual knowledge of such breach and nonetheless chose to consummate
the transactions contemplated hereby).
(b) Notwithstanding any other provision of this Section 8.3 and except as
otherwise set forth herein, LDA shall not be required to make any
indemnification payment for Losses unless and until the aggregate amount of all
Losses arising under this Section 8.3 exceeds $100,000 (the "LDA Basket"), at
which point LDA shall only indemnify Sturm Arena Indemnitees for all Losses in
excess of the LDA Basket; provided, however, that (i) only individual claims in
excess of $50,000 will be counted toward the LDA Basket amounts, and (ii) the
Sturm Arena Indemnitees shall not be entitled to indemnification hereunder for
any claims under $50,000, whether or not the LDA Basket has been exceeded.
Except as otherwise set forth herein, the maximum aggregate liability of LDA
shall be limited to $1,000,000 to all Sturm Arena Indemnitees for all Losses. No
claim for indemnification for a Loss arising under this Section 8.3 may be
brought after the expiration of the applicable period set forth in Section
11.11. If written notice of a claim has been given prior to the expiration of
the applicable survival period set forth is Section 11.11, then the relevant
representation and warranties shall survive solely as to such claim until the
claim as been finally resolved.
8.4 Indemnification of LDA. From and after the Closing Date, LDA and
each of its Affiliates, officers, directors, employees, agents, successors and
assigns (each an "LDA Indemnitee") shall be indemnified and held harmless by
Purchasers for any Loss arising out of or resulting from the breach of any
representation or warranty made by Sturm Arena contained in this Agreement.
8.5 Procedures for Third-Party Claims. Promptly after the receipt by a
Purchaser Indemnitee, a Seller Indemnitee, a Sturm Arena Indemnitee or an LDA
Indemnitee (any such entity, an "Indemnified Party") of a notice of any claim,
action, suit or proceeding by any third party that may be subject to
indemnification hereunder, such Indemnified Party shall give written notice of
such claim to the indemnifying party (the "Indemnifying Party"), stating the
nature and basis of the claim and the amount thereof, to the extent known.
Failure of the Indemnified Party to give such notice shall not relieve the
Indemnifying Party from liability on account of this indemnification, except to
the extent that the Indemnifying Party is prejudiced thereby. The Indemnifying
Party shall have 30 days from receipt of any such notice of claim to give
written notice of dispute of the claim to the Indemnified Party. If the
Indemnified Party does not receive written notice of the dispute within such 30-
day period, the amount of such Loss shall be conclusively deemed a liability of
the Indemnifying Party. The Indemnifying Party shall have the right to assume
the defense of the Indemnified Party against the third party claim with counsel
of its choice reasonably satisfactory to the Indemnified Party so long as (a)
the Indemnifying Party notifies the Indemnified Party in writing within 30 days
after the Indemnified Party has given notice of the third party claim that the
Indemnifying Party will indemnify the Indemnified Party from the Losses the
Indemnified Party may suffer relating to the third party claim, and (b) the
third party claim involves only money damages and does not seek an injunction or
other equitable relief. So long as the Indemnifying Party is conducting the
defense of the third party claim, (a) the Indemnified Party may retain separate
co-counsel at its sole cost
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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.
8.6 Procedures for Non-Third Party Claims. The Indemnified Party
shall notify the Indemnifying Party promptly of its discovery of any matter
giving rise to the claim of indemnity pursuant hereto. Any such notice shall set
forth in reasonable detail and to the extent then known the basis for such claim
for indemnification. Failure of the Indemnified Party to give such notice shall
not relieve the Indemnifying Party from liability on account of this
indemnification, except to the extent that the Indemnifying Party is prejudiced
thereby. The Indemnifying Party shall have 30 days from receipt of any such
notice to give written notice of dispute of the claim to the Indemnified Party.
If the Indemnified Party does not receive written notice of dispute within such
30-day period, the amount of such Loss shall be conclusively deemed a liability
of the Indemnifying Party. The Indemnified Party shall cooperate and assist the
Indemnifying Party in determining the validity of any claim for indemnity by the
Indemnified Party and otherwise resolving such matters. Such assistance and
cooperation will include, but not be limited to, providing access to and copies
of information, records and documents relating to such matters, furnishing
employees to assist in the investigation, defense and resolution of such
matters, furnishing employees to assist in the investigation, and providing
legal and business assistance with respect to such matters.
8.7 Dispute Resolution. After the Closing Date, if the applicable
parties are unable to resolve any dispute as to whether a claim is subject to
indemnification hereunder or, with respect to non-third party claims for
indemnification, the amount thereof, the exclusive method for resolving such
dispute shall be binding, non-appealable arbitration under the Commercial
Arbitration Rules, but not under the administration, of the American Arbitration
Association. The party seeking indemnification and the party from whom
indemnification is being sought may agree upon a sole arbitrator, or if a sole
arbitrator cannot be agreed upon, a panel of three arbitrators shall be named.
One arbitrator shall be selected by the party seeking indemnification and one
shall be selected by the party from whom indemnification is being sought. A
knowledgeable, disinterested and impartial arbitrator shall be selected by the
two arbitrators so appointed by such parties. If the arbitrators previously
appointed by such parties cannot agree upon the third arbitrator within 10
calendar days, then such parties may apply to any judge in any court sitting in
Colorado for appointment of the third arbitrator. The decision of the
arbitrator(s) shall be rendered within 60 days after the date of the selection
of the arbitrator(s)
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or within such period as such 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 such party shall be responsible for the expenses incurred by the arbitrator
appointed by such party and the expenses, fees, and costs of the third
arbitrator shall be borne 50% by each of such parties, and (b) in the event that
a single arbitrator is selected, the expenses of that arbitrator will borne 50%
by each of such parties. Any such party may apply to any court to enforce the
decision of the arbitrator(s).
ARTICLE IX.
TERMINATION
9.1 Mutual Agreement. This Agreement may be terminated at any time
prior to the Closing by the mutual written agreement of Seller and Purchasers.
9.2 Default by Seller. This Agreement may be terminated by Purchasers
prior to the Closing at any time following the expiration of 10 days from the
date that Purchasers have given written notice to Seller that there shall have
been a misrepresentation or breach by Seller with respect to any representation,
warranty or obligation of Seller in this Agreement which would entitle the
Purchasers not to consummate the transactions contemplated by this Agreement,
and such misrepresentation or breach cannot be cured by October 31, 1999 (the
"Drop Dead Date").
9.3 Default by Purchasers. This Agreement may be terminated by Seller
prior to the Closing at any time following the expiration of 10 days from the
date that Seller has given written notice to Purchasers that there shall have
been a misrepresentation or breach by Purchasers with respect to any
representation, warranty or obligation of Purchasers in this Agreement which
would entitle Seller not to consummate the transactions contemplated by this
Agreement, and such misrepresentation or breach cannot be cured by the Drop Dead
Date.
9.4 Failure to Close. This Agreement may be terminated by Purchasers
or Seller if the Closing shall not have been consummated by the Drop Dead Date;
provided, however, that neither Seller nor Purchasers may terminate this
Agreement pursuant to this Section 9.4 if the Closing shall not have been
consummated within such time period by reason of the failure of such party or
any of its Affiliates to perform in all material respects any of its or their
respective covenants or agreements contained in this Agreement.
9.5 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 June 25, 1999, between AEG
and Donald L. Sturm, all of which shall survive any such termination, (ii) the
rights and remedies available to a party as a result of any willful breach of
any provisions of this Agreement and (iii) the obligations of Seller and
Purchasers to pay Transfer Taxes, if any, pursuant to Section 10.5(c).
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ARTICLE X.
OTHER AGREEMENTS
10.1 Further Assurances. Subject to the terms and conditions of this
Agreement, Seller and Purchasers will use all reasonable efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary or desirable under Applicable Law to consummate the transactions
contemplated by this Agreement. Seller, Purchasers and LDA agree, subject to the
satisfaction of the conditions contained in this Agreement, to execute and
deliver such other documents, certificates, agreements and other writings and to
take such other actions as may be reasonably necessary or desirable in order to
consummate or implement expeditiously the transactions contemplated by this
Agreement.
10.2 Certain Filings. The parties hereto shall cooperate with one
another in determining whether any action by or in respect of, or filing with,
any Governmental Authority is required or reasonably appropriate, or any action,
consent, approval or waiver from any party to any Sports Entities Contract,
Arena Contract or other Contract binding upon any Purchased Entity is required
or reasonably appropriate, in connection with the consummation of the
transactions contemplated by this Agreement. Subject to the terms and conditions
of this Agreement, in taking such actions or making any such filings, the
parties hereto shall furnish information required in connection therewith and
seek timely to obtain any such actions, consents, approvals or waivers. Without
limiting the foregoing, the parties hereto shall each promptly complete and file
all reports and forms, and respond to all requests or further requests for
additional information, as may be required or authorized under the HSR Act.
10.3 Administration of Accounts. All payments and reimbursements made
by any third party to Seller in the name of or to any of the Purchased Entities,
the Pepsi Center, the Arena Land, the Development Property, the Nuggets or the
Avalanche after the Closing Date shall be held by Seller in trust for the
benefit of Sturm Sports or Sturm Arena, as the case may be, and, immediately
upon receipt by Seller of any such payment or reimbursement, Seller shall pay,
or cause to be paid, over to Sturm Sports or Sturm Arena, as the case may be,
the amount of such payment or reimbursement without right of set off.
10.4 Guarantee of Performance. The obligations of the Purchasers to
acquire the Equity Interests and of Sturm Arena to acquire the LDA Ascent Arena
Company Membership Interest will be personally guaranteed by Donald L. Sturm.
10.5 Taxes.
(a) Pre-Closing Matters.
(i) Seller shall cause any tax-sharing agreements, tax
indemnity agreements, tax allocation agreements, or similar agreements with
respect to a Purchased Entity or a Corporate Entity, and any power of attorney
with respect to Tax matters of a Purchased Entity or a Corporate Entity, to be
terminated on or prior to the Closing Date so that from and
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after the Closing Date the Purchased Entities and Corporate Entities shall not
be bound thereby nor have any liability thereunder.
(ii) No material new elections with respect to Taxes nor any
material changes in current elections with respect to Taxes affecting any
Purchased Entity or a Corporate Entity shall be made after the date of this
Agreement without the prior written consent of Purchaser.
(iii) Prior to Closing, Seller shall provide Purchasers with a
clearance certificate or similar document that may be required by any state
taxing authority in order to relieve Purchasers of any obligation to withhold
any portion of the purchase price with respect to any of the Purchased Entities
or Corporate Entities.
(iv) Seller shall deliver to Purchasers at Closing a "Certificate
of Nonforeign Status" under Section 1445 of the Code in a form reasonably
satisfactory to Purchasers.
(v) Each Partnership Entity has or will have an election under
Section 754 of the Code in effect for the tax year that includes the Closing
Date. The tax matters partner for each Partnership Entity shall resign effective
on or before the Closing Date.
(vi) Seller shall cooperate with Purchasers with respect to
structure matters relating to Tax efficiencies prior to Closing.
(vii) Prior to the Closing, Seller shall pay all Non-Income Taxes
of each Purchased Entity and Corporate Entity no later than five business days
after such Non-Income Taxes are due.
(viii) Seller agrees that the amount of Non-Income Taxes of the
Purchased Entities and Corporate Entities allocable to any Pre-Closing Period
(determined in the same manner as the determination of Income Taxes allocable to
a Pre-Closing Period under Section 10.5(b)(i)) that are unpaid as of Closing
shall not exceed $650,000.
(b) Allocation of Taxes for Pre-Closing and Post-Closing Periods.
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(i) Seller shall pay all Income Taxes of each Purchased Entity
and Corporate Entity allocable to any Pre-Closing Period whether such Income
Taxes are due before or after Closing and all Income Taxes specifically
attributable to a Corporate Entity ceasing to be a member of Seller's
consolidated group (which shall include, without limitation, any income from an
intercompany transaction described in Treasury Regulation (S) 1.1502-13 or with
respect to any excess loss account described in Treasury Regulation (S) 1.1502-
19 or pursuant to any comparable provisions of state, local or foreign tax law).
Subject to the provisions below, the Income Taxes allocable to a Pre-Closing
Period shall be determined on the accrual accounting method and on the basis of
a closing of the books of each Purchased Entity and Corporate Entity as of the
end of the Closing Date. Income Taxes allocable to a Pre-Closing Period shall
include all Income Taxes with respect to income, gain or loss from the sale of
the interests in the
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Partnership Entities and the sale of the interests in the Development Land and
the Arena Land by the Corporate Entities pursuant to this Agreement and any
Income Taxes related to the mergers of Ascent Sports and Ascent Development
Corp. as described in Section 11.13. The Income Taxes attributable to a
Purchased Entity's or Corporate Entity's direct and indirect interest in any Tax
Partnerships shall be determined by a closing of the books of each Tax
Partnership as of the end of the Closing Date, and all Income Taxes attributable
to the operations and activities of a Tax Partnership through the end of the
Closing Date using the accrual accounting method shall be considered Income
Taxes of the Purchased Entity or Corporate Entity allocable to a Pre-Closing
Period.
(ii) For federal income tax purposes, Seller shall include all
income of each Corporate Entity for all Pre-Closing Periods beginning on or
after July 1, 1997 in the consolidated federal income tax returns of Seller's
consolidated group and shall pay any Taxes attributable to such income. Any
position on such returns that relates to a Corporate Entity shall comply with
the Return Preparation Standard. Purchasers shall prepare and deliver to Seller
within 45 days after Closing books and working papers (prepared on a GAAP basis)
that demonstrate the operations, activities and income of each Purchased Entity
and Corporate Entity for the period ending on the Closing Date. Seller shall
prepare and deliver to Purchasers within 30 days after the receipt of the books
and working papers described in the preceding sentence, a statement prepared on
a tax basis reflecting the operations, activities and income of each Purchased
Entity and Corporate Entity for the period ending on the Closing Date.
(c) Transfer Taxes. Purchasers shall pay 100% of any sales, use,
transfer, stamp, documentary or other similar Taxes and any recording and filing
fees (collectively "Transfer Taxes"), with respect to the transactions hereunder
(including the steps taken by Seller pursuant to Section 11.13) , except that
Seller shall pay any Transfer Taxes that are solely and directly attributable to
the transfer from AEG to HC of a portion of the AEG Nuggets LP Partnership
Interest and the AEG Avalanche Membership Interest, and Purchasers shall prepare
all Returns with respect to such Transfer Taxes , except that Seller shall
prepare all Returns with respect to the Transfer Taxes for which Seller is
responsible under this Section 10.5(c), and the Party required to file such
Returns shall timely file such Returns.
(d) Indemnification.
(i) Seller shall indemnify, and hold harmless the Purchasers,
each Purchased Entity and their Affiliates from and against (without
duplication) any Loss incurred by Purchasers, any Purchased Entity, or any
Affiliates:
(A) With respect to any Income Taxes of a Purchased Entity
or Corporate Entity attributable to a Pre-Closing Period taking into account the
provisions of Section 10.5(b)(i) but excluding any Income Taxes described in
Section 10.5(d)(ii)(B) or (d)(ii)(C);
(B) With respect to any Income Taxes specifically
attributable to a Corporate Entity leaving Seller's consolidated group (which
shall include without limitation any deferred intercompany gain under Treasury
Regulation (S) 1.1502-13 and income with respect
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to an excess loss account under Treasury Regulation (S) 1.1502-19, or pursuant
to any comparable provision of state, local or foreign tax law);
(C) With respect to any liability of a Purchased Entity or
Corporate Entity for any Pre-Closing Period for the Taxes of any other person
(other than another Purchased Entity or Corporate Entity ) as a transferee, a
successor, by contract, pursuant to Treasury Regulation (S) 1.1502-6, or
otherwise;
(D) With respect to any Transfer Taxes that are the
obligation of Seller under Section 10.5(c);
(E) With respect to any loss resulting from the breach of
any of the representations, warranties, covenants or agreements set forth in
Sections 5.2(e)(iii), 5.11 or 10.5 (with such breach determined as if there were
no qualifier as to materiality with respect to any such representation or
warranty that relates to Income Taxes).
(ii) Purchasers shall indemnify and hold harmless Seller and its
respective Affiliates from and against (without duplication) any Loss incurred
by Seller or its Affiliates:
(A) With respect to any Taxes of a Purchased Entity
attributable to a Post-Closing Period;
(B) With respect to any Taxes resulting from transactions or
actions taken by a Purchased Entity that occur on the Closing Date but after the
Closing and that are not in the ordinary course of business;
(C) With respect to any Taxes resulting from an actual or
deemed election by Purchaser under Section 338 of the Code (or any similar
provisions of state law or the law of any other taxing jurisdiction) with
respect to any of the Purchased Entities in connection with any of the
transactions contemplated by this Agreement;
(D) With respect to any Transfer Taxes that are the
obligation of Purchasers under Section 10.5(c); and
(E) With respect to any loss resulting from the breach of
any of the representations, warranties, covenants or agreements set forth in
this Section 10.5.
(iii) Any indemnity payments made between the parties shall be
treated as an adjustment to the Purchase Price.
(e) Preparation of Returns.
(i) All Returns for a Purchased Entity or Corporate Entity (other
than Mountain Mobile) with respect to any Pre-Closing Period that are to be
filed after the date of this Agreement and before the Closing Date shall be
prepared and filed by Seller and Seller shall pay all taxes due on those
Returns. Any federal consolidated income tax return and any state
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consolidated, unitary or combined income tax return that includes a Corporate
Entity with respect to any Pre-Closing Period and that is to be filed after the
Closing Date shall be prepared and filed by Seller and Seller shall pay all
Taxes shown as due on those Returns. If any amount shown as due on those Returns
is the obligation of Purchasers under Section 10.5(d)(ii), Purchasers shall pay
such amount to Seller at least five business days prior to the filing of such
Returns. The Returns described above shall be prepared in accordance with the
Return Preparation Standard insofar as such Returns relate to a Purchased Entity
(other than Mountain Mobile). Seller shall provide Purchaser with a copy of each
such Return (and supporting schedules) in the form proposed to be filed by
Seller (a "Proposed Return") at least 30 days in advance of the due date for
such Return. Purchaser and its authorized representatives shall have the right
to review and comment on the Proposed Return and Seller shall make any changes
reasonably requested by Purchaser in order to caused the Proposed Return to
comply with the Return Preparation Standard. Neither Seller nor any affiliate
shall file any amended Return or claim for Tax refund with respect to any
Purchased Entity with respect to any Pre-Closing Period, without the consent of
Purchaser, if the requested adjustment would increase the Tax liability of
Purchaser for any period unless Seller or the affiliate, as the case may be,
agrees to indemnify Purchaser for the full cost of such increased Tax liability
of Purchaser.
(ii) Except for state and federal income Tax Returns described in
paragraph (i) above, all Returns with respect to a Purchased Entity or Corporate
Entity that are to be filed after the Closing Date shall be prepared and filed
by Purchasers. With respect to any Pre-Closing Period such Returns shall be
prepared in accordance with the Return Preparation Standard. Seller shall pay to
Purchaser any amounts shown as due on those Returns that is the obligation of
Seller under Section 10.5(d)(i) and such payment by Seller shall be made at
least five business days prior to the filing of the respective Return. Purchaser
shall pay any amount shown as due on such Returns that is not to be paid by
Seller as provided above. With respect to any Return described in this paragraph
(ii) that includes a Purchased Entity or Corporate Entity for a Pre-Closing
Period: (A) Purchaser shall provide Seller with a copy of that Return (and
supporting schedules) in the form proposed to be filed by Purchaser at least 30
days in advance of the due date of such Return; and (B) Seller and its
authorized representatives shall have the right to review and comment on such
Return prior to filing to the extent it relates to a Purchased Entity or
Corporate Entity for a Pre-Closing Period and Purchaser shall make any changes
reasonably requested by Seller in order to cause such Return to comply with the
Return Preparation Standard for any Pre-Closing Period.
(iii) Seller on the one hand, and Purchasers on the other hand,
agree to furnish or cause to be furnished to each other, upon request, as
promptly as practicable, such information and assistance (including access to
books, records and accounting work papers) relating to a Purchased Entity or
Corporate Entity as is reasonably necessary for the preparation of any Return,
claim for refund or audit, and the prosecution or defense of any claim, suit or
proceeding relating to any proposed adjustment.
(f) Notification of Proceedings. In the event that Purchasers receive
written notice of any Tax matter with respect to a Purchased Entity or Corporate
Entity that could affect Seller, or Seller receives written notice of any Tax
matter with respect to a Purchased Entity or
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Corporate Entity that could affect Purchasers, the party receiving such written
notice shall notify in writing the potentially affected party within seven
calendar days thereof. The failure of any party to give the notice required by
this Section 10.5(f) shall not impair that party's rights under this Agreement
except to the extent that the other party demonstrates that it has been damaged
thereby.
(g) Cooperation.
(i) After the Closing, Seller and Purchasers shall, each at its
own expense, cooperate with each other and with each other's agents, including
accounting firms and legal counsel, in connection with the preparation or audit
of any Return, refund claim or Tax controversy matter with respect to any
Purchased Entity or Corporate Entity or its activities. Such cooperation shall
include making available any information, records and documents in their
possession or under their control related to any Purchased Entity or Corporate
Entity that is relevant to the preparation or audit of any Return, refund claim
or Tax controversy matter with respect to any Purchased Entity or Corporate
Entity or its activities. Any information provided or obtained under this
paragraph shall be kept confidential, except as may otherwise be necessary in
connection with the filing of a Return, refund claims, tax audits, tax claims or
tax litigation or as required by law.
(ii) Seller shall have the right to control, at its expense, any
Tax Proceeding (as defined below) to the extent such proceeding relates to any
Tax issue that could give rise to a liability of Sellers to Purchasers under
Section 10.5(d)(i) (a "Liability Issue"). Seller shall furnish to Purchasers
copies of any inquiries or requests for information from any taxing authority
concerning any Liability Issue. Purchasers shall have the right to consult with
Seller regarding any response to such requests. Seller shall provide to
Purchaser copies of all written communications and documents submitted to any
taxing authority with respect to a Liability Issue. Seller and Purchasers, as
the case may be, shall each furnish to the other, promptly after receipt, a copy
of all information document requests, notices of proposed adjustment, revenue
agent's reports or similar reports or notices of deficiency together with all
relevant documents and memos related to the foregoing documents, notices or
reports, relating to any Liability Issue.
(iii) Subject to the provisions of subparagraph (ii) above,
Purchasers shall have complete control over the handling, disposition and
settlement of any Tax controversy with respect to a Purchased Entity or
Corporate Entity, including, without limitation, any administrative, judicial or
other proceeding in connection with any Tax controversy (a "Tax Proceeding"). In
the event that a Purchaser or a Purchased Entity is required to pay any Tax,
file any bond or pay any other amount in order to undertake a Tax Proceeding
with respect to any Taxes for which Seller is liable under Section 10.5(d)(i),
Seller shall advance such amounts to Purchasers or the Purchased Entity no later
than three business days before such payment is required to be made, without
interest and until a final determination with respect to such Taxes has
occurred, the amount required to be paid by the Purchasers or the Purchased
Entity. Within three business days of the receipt by Purchasers or the Purchased
Entity of a refund of any amount advanced to it by Seller (including any related
interest amount received by the
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Purchasers or the Purchased Entity), Purchasers shall pay such refunded amount
to Seller net of any Tax cost incurred by the Purchased Entity as a result of
such refund.
(h) Record Retention. Seller and Purchaser shall retain and provide to
each other upon reasonable request any records or other information (including
accounting work papers) that is in their possession or readily obtainable and
may be relevant to any Return, audit or examination, proceeding, or
determination that affects any amount required to be shown on any Return of a
Purchased Entity or Corporate Entity for any period. Without limiting the
generality of the foregoing, Seller and Purchaser shall retain, until the
applicable statutes of limitations (including any extensions) have expired,
copies of all Returns, supporting work papers, and other records or information
that may be relevant to such Returns of a Purchased Entity or Corporate Entity
and shall not destroy or otherwise dispose of any such records without first
providing the other party with a reasonable opportunity to review and copy the
same.
(i) Tax Adjustment for Payments. The amount of any payments required to
be made under this Section 10.5 shall be reduced by the amount of any tax
benefit (including by refund or by reduction of or offset against Taxes
otherwise payable) actually received by the recipient by reason of the payment
or incurrence by such recipient of the item for which the indemnity is being
sought to the extent the recipient would not have otherwise received such tax
benefit. Each party shall notify the other of such receipt of any such tax
benefits.
(j) For federal income tax purposes, Seller and Purchasers shall treat
the purchase of 100% of the membership interests in LLC-I and LLC-II as of the
purchase of the assets of LLC-I and LLC-II pursuant to Revenue Ruling 99-5.
(k) For all purposes (including tax, accounting and state corporate law
purposes) Seller and Purchasers shall treat HC (a wholly owned subsidiary of
AEG) as the only shareholder of Ascent Development Corp. and of Ascent Sports at
the time of the mergers of those two corporations as described in Section 11.13,
shall treat HC as the distributee of all liquidating distributions by the
liquidated corporations and shall treat the liquidations as occurring prior to
the Closing.
10.6 Employee Benefit Plans.
(a) This Section 10.6 contains the covenants and agreements of the
parties with respect to the employee benefits and employee benefit plans
provided or covering the employees of the Purchased Entities. Nothing herein
expressed or implied confers upon any such employee any rights or remedies of
any nature or kind whatsoever under or by reason of this Section 10.6.
(b) Purchasers agree to cause the Purchased Entities Employee Plans to be
maintained substantially in accordance with their current terms and conditions,
except to the extent any change may be required by Applicable Law, through the
first anniversary of the Closing Date, 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 the first
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anniversary of the Closing Date in a manner substantially the same as that
currently contemplated by the Purchased Entities.
(c) Purchasers agree to cause to be made available on and after the
Closing Date to employees of the Purchased Entities on the Closing Date who
participate in Seller's 401(k) Plan ("Seller's 401(k) Plan") a 401(k) plan
sponsored by Ascent Sports (the "Ascent Sports 401(k) Plan"). The Ascent Sports
401(k) Plan shall, through the first anniversary of the Closing Date, 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.
(d) Each welfare plan (within the meaning of Section 3(1) of ERISA) or
policy maintained or sponsored by the Purchased Entities in which any employees
of the Purchased Entities who currently participate in welfare plans maintained
by the Seller will be eligible to participate in shall (i) permit such employees
to enroll in such plans effective upon the Closing Date, subject to satisfaction
of any eligibility requirements but without regard to any waiting periods, (ii)
waive any pre-existing condition limitation or exclusion and (iii) credit all
payments made for health care expenses during the current plan year of Seller's
plans for purposes of satisfying deductible, co-insurance and maximum out-of-
pocket provisions for the balance of the current plan year of the Purchased
Entities' plans.
(e) Purchasers shall cause the Purchased Entities to continue, for the
balance of the current plan year, any Code section 125 cafeteria plans based on
the current elections of the participants who are employed by the Purchased
Entities on the Closing Date.
10.7 Publicity. The parties hereto understand and acknowledge that Seller
will be obligated to disclose promptly after signing all of the material terms
and conditions of this Agreement, and shall thereafter be required to file this
Agreement with the Securities and Exchange Commission. Subject to the foregoing,
the parties agree that no press release will be made by Seller, Purchasers or
LDA or any of their respective agents concerning the transactions contemplated
under this Agreement until such release has been reviewed by and coordinated
with the other parties.
10.8 Costs and Expenses. Seller, Purchasers and LDA shall each be
responsible for and bear their own costs and expenses incurred in connection
with the transactions contemplated under this Agreement; provided, however, that
Seller and Purchasers shall each pay one-half of any HSR Act filing fees
required to be paid in connection with the transactions contemplated under this
Agreement.
10.9 Conditions to Closing. Seller and Purchasers shall use all reasonable
efforts to satisfy the applicable conditions to the Closing set forth in Article
VII. LDA shall use commercially reasonable efforts to satisfy the applicable
conditions to the Closing set forth in
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Section 7.1(d) (with respect to the consummation of the purchase and sale of the
LDA Ascent Arena Company Membership Interest hereunder), and Sections 7.1(r),
7.1(s) and 7.1(t).
ARTICLE XI.
MISCELLANEOUS
11.1 Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (a) if
personally delivered, when so delivered, (b) if mailed, two Business Days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid and addressed to the intended recipient as set forth below, (c)
if given by telex or telecopier, once such notice or other communication is
transmitted to the telex or telecopier number specified below and the
appropriate answer back or telephonic confirmation is received, provided that
such notice or other communication is promptly thereafter mailed in accordance
with the provisions of clause (b) above, or (d) if sent through an overnight
delivery service in circumstances to which such service guarantees next day
delivery, the day following being so sent:
If to Seller:
Ascent Entertainment Group, Inc.
1225 Seventeenth Street
Denver, Colorado 80202
Attention: Arthur M. Aaron, Esq.
Telecopier No.: (303) 308-0849
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 W. 52nd Street
New York, New York 10019
Attention: Pamela S. Seymon, Esq.
Telecopier No.: (212) 403-2205
If to LDA:
Liberty Denver Arena LLC
9197 South Peoria Street
Englewood, Colorado 80012
Attention: Mr. David J.A. Flowers
Telecopy: (720) 875-5443
With a copy similarly addressed to:
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Attention: Charles Y. Tanabe, Esq.
Telecopy: (720) 875-5443
If to Purchasers:
Sturm Sports, LLC
Sturm Avalanche, LLC
Sturm Nuggets, LLC
Sturm Arena, LLC
3033 East First Avenue, Suite 200
Denver, Colorado 80206
Attention: Donald L. Sturm
Telecopier No.: (303) 321-4444
with a copy similarly addressed to:
Attention: Richard H. Siegel, Esq.
Telecopier No.: (303) 394-5301
with a copy to:
Jacobs Chase Frick Kleinkopf & Kelley LLC
1050 17th Street, Suite 1500
Denver, Colorado 80265
Attention: Paul A. Jacobs, Esq.
Telecopier No. (303) 685-4869
If to Designated Representative:
Richard H. Siegel, Esq.
3033 East First Avenue, Suite 200
Denver, Colorado 80206
Telecopier No.: (303) 394-5301
Any party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
11.2 Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and signed, in the case of an
amendment, by all parties hereto, or in the case of a waiver, by the party
against whom the waiver is to be effective.
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(b) No waiver by a party of any default, misrepresentation or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent occurrence. No failure or delay by a party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
11.3 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. No party hereto may assign either this Agreement or any of
its rights, interests or obligations hereunder without the prior written
approval of each other party, which approval shall not be unreasonably withheld.
11.4 Governing Law. This Agreement shall be construed in accordance with
and governed by the internal laws (without reference to choice or conflict of
laws) of the State of Colorado.
11.5 Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by the other parties hereto.
11.6 Entire Agreement. Except as otherwise provided herein, this Agreement
(including the Schedules and Exhibits referred to herein which are hereby
incorporated by reference) constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements,
understandings and negotiations, both written and oral, between the parties with
respect to the subject matter of this Agreement. Neither this Agreement nor any
provision hereof is intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder.
11.7 Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof. All references to an Article or Section include all subparts thereof.
11.8 Severability. If any provision of this Agreement, or the application
thereof to any Person, place or circumstance, shall be held by a court of
competent jurisdiction to be invalid, unenforceable or void, the remainder of
this Agreement and such provisions as applied to other Persons, places and
circumstances shall remain in full force and effect only if, after excluding the
portion deemed to be unenforceable, the remaining terms shall provide for the
consummation of the transactions contemplated hereby in substantially the same
manner as originally set forth at the later of the date this Agreement was
executed or last amended.
11.9 Construction.
-79-
<PAGE>
(a) The language used in this Agreement will be deemed to be the
language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against either party. Any reference
to any Applicable Law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. Whenever required
by the context, any gender shall include any other gender, the singular shall
include the plural and the plural shall include the singular. The words
"herein," "hereof," "hereunder," and words of similar import refer to the
Agreement as a whole and not to a particular section.
(b) In the event of a conflict or inconsistency between any provision
contained in this Agreement and any provision contained in any of the Schedules
or Exhibits to this Agreement, the provision in the Agreement shall be
controlling.
11.10 Cumulative Remedies. Except as provided in Sections 8.1 and 9.5,
the rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
11.11 Survival of Representations, Etc. Except for representations and
warranties relating to the Equity Interests and the LDA Ascent Arena Company
Membership Interest as set forth in Sections 5.2 and 5A.2 and tax matters, which
shall survive for the applicable statute of limitations period, the
representations, warranties, covenants and agreements of Seller, Purchasers,
Sturm Arena and LDA contained herein or in any other document delivered pursuant
to this Agreement shall survive for a period of 18 months after the Closing,
without regard to any investigation made by any of the parties hereto (and
except as otherwise provided in Section 8.1(a)(i), 8.1(a)(ii) or 8.3(a)).
11.12 No Third Party Beneficiaries. Except as expressly provided in this
Agreement, including the Guarantee contemplated by Section 10.4 hereof, no
person other than Purchasers and Seller shall have any right, benefit or
obligation under this Agreement as a third party beneficiary or otherwise.
11.13 Revised Deal Structure.
(a) On the day before the Closing, AEG will transfer ownership of all of
the stock of Ascent Development Corp. to HC and will cause Ascent Development
Corp. to be merged with and into LLC-II, with LLC-II as the surviving entity. As
the surviving entity, LLC-II will have all the rights, privileges and powers, as
well as all right, title and interest in all of the property, real, personal and
mixed, and other assets of Ascent Development Corp., and will assume all of the
debts, liabilities and duties of Ascent Development Corp.
(b) On the day before the Closing, AEG will transfer ownership of all of
the stock of Ascent Sports to HC and will cause Ascent Sports to be merged with
and into LLC-I, with LLC-I as the surviving entity. As the surviving entity,
LLC-I will have all the rights, privileges and powers, as well as all right,
title and interest in all of the property, real, personal and mixed, and other
assets of Ascent Sports and will assume all of the debts, liabilities and duties
of Ascent Sports.
-80-
<PAGE>
(c) Because of the actions to be taken pursuant to this Section 11.13,
Purchasers agree and acknowledge that representations and warranties relating to
the corporate status and existence of Ascent Sports and Ascent Development Corp.
will be true on the date of signing of this Agreement and on the date the
transactions contemplated by this Section 11.13 are completed, but will not be
true as of the Closing Date.
(d) Prior to the mergers described in subsections (a) and (b) of this
Section 11.13, neither LLC-I nor LLC-II shall hold any assets or engage in any
business or investment activities of any kind.
-81-
<PAGE>
COUNTERPART SIGNATURE PAGE TO
PURCHASE AND SALE AGREEMENT AMONG ASCENT
ENTERTAINMENT GROUP, INC., LIBERTY DENVER
ARENA LLC AND STURM SPORTS, LLC, STURM AVALANCHE, LLC,
STURM NUGGETS, LLC AND STURM ARENA, LLC
DATED AS OF JULY 27, 1999
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers or managers as of the
day and year first above written.
AEG:
---
ASCENT ENTERTAINMENT GROUP, INC., a Delaware
corporation
By: /s/ Arthur M. Aaron
--------------------------
Name: Arthur M. Aaron
Title: Vice President, Business and Legal
Affairs
HC:
--
ASCENT SPORTS HOLDINGS, INC., a Delaware corporation
By: /s/ Arthur M. Aaron
--------------------------
Name: Arthur M. Aaron
Title: Vice President
-82-
<PAGE>
COUNTERPART SIGNATURE PAGE TO
PURCHASE AND SALE AGREEMENT AMONG ASCENT
ENTERTAINMENT GROUP, INC., LIBERTY DENVER
ARENA LLC AND STURM SPORTS, LLC, STURM AVALANCHE, LLC,
STURM NUGGETS, LLC AND STURM ARENA, LLC
DATED AS OF JULY 27, 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.
STURM SPORTS, LLC
By: Sturm Sports Holdings, LLC
By: /s/ Donald L. Sturm
-----------------------------
Donald L. Sturm,
Chairman of the Board of
Managers and
Chief Executive Officer
STURM AVALANCHE, LLC
By: Sturm Sports Holdings, LLC
By: /s/ Donald L. Sturm
------------------------------
Donald L. Sturm,
Chairman of the Board of Managers and
Chief Executive Officer
STURM NUGGETS, LLC
By: Sturm Sports Holdings, LLC
By: /s/ Donald L. Sturm
-----------------------------
Donald L. Sturm
Chairman of the Board of Managers and
Chief Executive Officer
<PAGE>
STURM ARENA, LLC
By: Sturm Sports Holdings, LLC
By: /s/ Donald L. Sturm
-----------------------------
Donald L. Sturm
Chairman of the Board of Managers and
Chief Executive Officer
<PAGE>
COUNTERPART SIGNATURE PAGE TO
PURCHASE AND SALE AGREEMENT AMONG ASCENT
ENTERTAINMENT GROUP, INC., LIBERTY DENVER
ARENA LLC AND STURM SPORTS, LLC, STURM AVALANCHE, LLC,
STURM NUGGETS, LLC AND STURM ARENA, LLC
DATED AS OF JULY 27, 1999
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers or managers as of the
day and year first above written.
LDA:
---
LIBERTY DENVER ARENA LLC, a Delaware limited liability
company
By: LMC Denver Arena, Inc., a Delaware corporation,
its sole member
By: /s/ Charles Y. Tanabe
--------------------------------------------
Name: Charles Y. Tanabe
Title: Sr. Vice President and General Counsel
<PAGE>
EXHIBIT 10.2
NBC SATELLITE SYSTEM
--------------------
SERVICE CONTRACT AMENDMENT
--------------------------
DATED JULY 26, 1999
-------------------
This Amendment to the Service Contract between the National Broadcasting
Company, Inc. ("NBC") and Ascent Network Services, a division of Ascent
Entertainment Group, Inc. ("ANS") (the successor in interest to COMSAT General
Corporation) dated as of September 15, 1983, as amended (the "NBC Agreement") is
by and between NBC and ANS. This Amendment sets forth certain agreements and
understandings between NBC and ANS. Any capitalized term not defined herein
shall have the meaning ascribed to such term in the NBC Agreement.
1. CONTRACT EXTENSION PERIOD: JANUARY 1, 2000 - DECEMBER 31, 2002
---------------------------------------------------------------
(a) The NBC Agreement is hereby extended for the period beginning
January 1, 2000 and ending December 31, 2002. During this extension,
the payments for Satellite Transmission System ("STS") service and
maintenance shall be as follows:
(1) Service: The service charge shall be $2,500,000 per year for
the years 2000, 2001 and 2002, for a total value of $7,500,000,
payable in 36 equal monthly installments.
(2) Maintenance: The maintenance charge shall be $10,225,000 per
year for the years 2000, 2001 and 2002, for a total value of
$30,675,000, payable in 36 equal monthly installments.
Total Service and Maintenance = $38,175,000
(b) On or before September 30, 1999, NBC, or an affiliated NBC entity,
will enter into a three year extension of the Portable Uplink Package
Service Contract dated July 8, 1987, as amended, by and between NBC and
ANS, with payment by NBC to ANS under such agreement of $456,000 per
year for service and $1,166,000 per year for maintenance (with no
escalation in either case). If such contract is not extended by
September 30, 1999, then beginning January 1, 2000, in addition to the
amounts described in (a) above, NBC will pay ANS an additional $800,000
per year through December 31, 2002.
<PAGE>
2. NBC END OF TERM OPTIONS AND BUY-OUT RIGHTS
------------------------------------------
The parties agree to delete Section 2(B)(1) of the NBC Satellite System
Service Contract Amendment dated September 1, 1992 between COMSAT General
Corporation and National Broadcasting Company, Inc. and Article XVIII -
TERMINATION, Subparagraphs D.1, D.2 and D.3 of the NBC Agreement, and agree
to the following:
(a) Rent or Lease
-------------
After December 31, 2002, NBC may rent or lease the equipment described on
Annex A attached hereto related to the STS system, provided NBC has given
written notice to ANS of its intention to do so prior to Sept. 1, 2002,
(which lease or rental shall not entitle NBC to any of the following:
transponders, maintenance, spare parts, PUPS and administrative services) on
a year-to-year basis, for a charge negotiated in good faith by NBC and ANS,
which shall in no event exceed $2.5 million per year. As desired by NBC and
ANS, any extension after December 31, 2002 related to maintenance,
administrative, PUPS or other services (other than certain service,
maintenance and equipment obligations related to MSNBC, which currently
extend to 2006) shall be separately negotiated in good faith.
(b) Purchase Rights
----------------
As an alternative to option (a)above, NBC may purchase all or any part of
the equipment as described in Annex A attached hereto at a price to be
negotiated in good faith by the parties, but in no event to exceed the then
"fair market value" as determined by an independent third party appraiser
who shall be acceptable to both parties.
(c) Walk-Away
---------
As a third option, NBC may choose to walk-away from the Agreement without
any further liability or obligation, and ANS, its successors or assignees,
shall be responsible for all costs associated with the removal and
disposition of all installations and equipment included under this
agreement, and shall restore the sites of such installations accordingly.
3. ANS RIGHT OF FIRST REFUSAL
--------------------------
At any time, including, if NBC exercises any of its rights under Section 2
above, ANS shall be afforded the opportunity to bid on satellite
transmission service,
<PAGE>
maintenance or equipment or any related service, maintenance or equipment,
digital or otherwise, in connection with NBC's delivery of network
television to its affiliates, provided that ANS, its successors or assignees
are then in the business of providing such service, maintenance or equipment
as referenced above. If ANS chooses to submit a proposal related to such
service, maintenance or equipment, ANS shall be afforded an opportunity to
meet the best overall competitive offer extended to NBC for the same service
maintenance and/or equipment. Any and all contract awards resulting from
proposals solicited and received by NBC, shall be made based on the detailed
analysis of all technical, operational and business factors, and shall be
made solely at the discretion of NBC; provided, however, that if, pursuant
to its right in the immediately preceding sentence, ANS has met in all
respects (as determined by NBC in its sole discretion) the terms of the best
overall competitive offer extended to NBC for the same maintenance and/or
equipment (with such terms determined and defined solely by NBC), then NBC
agrees to award the contract therefor to ANS. NBC shall at all times retain
the right to accept or reject any and all offers.
In circumstances where ANS is not selected as the service, maintenance or
equipment vendor, ANS shall be paid separately by NBC for any requested
analysis, testing and integration of any new service, maintenance or
equipment into the NBC STS network (or any successor network.)
In connection with the foregoing, NBC and ANS shall separately negotiate all
appropriate terms for any service, maintenance or equipment changes made to
the NBC STS network by ANS as requested by NBC.
4. EXTRAORDINARY EVENT PROTECTION
------------------------------
If an extraordinary event occurs that is beyond either party's control
(including, but not limited to, any extraordinary increase in FCC tariff
fees incurred by ANS in connection with its provision of the services
delivered pursuant to the NBC Agreement) or ANS' future ability to procure
STS system equipment parts is materially impaired, ANS will notify NBC of
such event or impairment and NBC and ANS will negotiate in good faith
regarding reimbursement to ANS by NBC of any additional costs associated
with such event or impairment incurred by ANS in order to maintain the then
current operating and performance levels of the STS system. ANS and NBC
further agree that any such
<PAGE>
additional costs are required to be reimbursed by NBC on a "pass-through"
basis with no mark-up by ANS.
5. Y2K REPRESENTATIONS AND WARRANTIES
----------------------------------
(a) Each of NBC and ANS covenant and agree that it will not permit a Year
2000 problem in computer systems, software (for the purposes of this
section, SNMS software shall be considered the obligation of NBC,
notwithstanding any express or implied grant by NBC to ANS of a license
to use such software in connection with the NBC Agreement) or equipment
owned, leased or licensed by it, its affiliates or subsidiaries to
interfere with its performance under the NBC Agreement. Each party
further agrees to request, from those of its suppliers whose
performance may materially affect that party's performance hereunder,
that each such supplier undertake the same obligation with respect to
such material performance. The parties will use reasonable commercial
efforts to cooperate and share information to further comply with this
Section 5, and to minimize the impact of any Year 2000 problem on
performance of the NBC Agreement. Each party will inform the other
party of any circumstance indicating a possible obstacle to such
compliance, and the steps being taken to avoid or overcome the
obstacle.
(b) Provided a party complies with section (a) above, it will not be liable
to the other party for any failure to perform obligations under the NBC
Agreement to the extent that such failure arises from a Year 2000
problem (1) affecting one of the nonperforming party's suppliers or (2)
beyond that party's reasonable control (such as, a Year 2000 problem
affecting a governmental entity). IN PARTICULAR, SUCH PARTY SHALL HAVE
NO LIABILITY FOR ANY DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES.
(c) A "Year 2000 problem" means a date-handling problem relating to the
Year 2000 date change that would cause a computer system, software or
equipment to fail to correctly perform, process and handle date-related
data for the dates within and between the twentieth and twenty-first
centuries.
<PAGE>
6. ASSIGNMENT
----------
ANS shall not assign, mortgage, pledge, encumber or otherwise transfer this
Contract, in whole or in part, or any interest hereunder, or any of its
rights, duties or obligations hereunder, whether voluntarily, involuntarily,
or by operation of law, to any person, natural or legal, without the prior
express written approval of NBC, which approval may be granted or withheld
in NBC's sole discretion, but based only upon NBC's reasonable determination
whether or not the assignee has the financial and business ability to
perform the assignor's obligations at least as well as the assignor. Any
assignment, mortgage, pledge, encumbrance, transfer or sublease not in
accordance with this Article shall, at NBC's option, be voidable and
constitute a default under this Contract. If ANS is a corporation, any
merger, consolidation, or other reorganization of ANS, or the sale or other
transfer of twenty-five percent (25%) or more of the direct or indirect
ownership interest of ANS, shall be deemed an assignment of this Contract by
ANS. If ANS is a partnership, a withdrawal or change, voluntary, involuntary
or by operation of law of any partner or partners owning directly or
indirectly a total of twenty-five percent (25%) or more of the partnership,
or the dissolution of the partnership, shall be deemed an assignment of this
Contract by ANS. If ANS consists of more than one person, a purported
assignment, voluntary, involuntary or by operation of law, by any one of the
persons executing this Contract shall be deemed a voluntary assignment of
this Contract by ANS.
7. SUPERSEDURE
-----------
This Amendment together with the original Service Agreement and all prior
Amendments and modifications incorporated either by formal amendment or
letters between the parties, constitutes the entire understanding between
NBC and ANS with respect to the foregoing agreements and understandings and
supersedes any and all prior communications, representations and agreements
between them with respect to such agreements and understandings. No
subsequent amendment to the NBC Agreement shall be effective unless it is
agreed to in writing and signed by both NBC and ANS.
Except as specifically modified herein, all terms and conditions of the
original Service Agreement, as previously amended, shall remain in full
force and effect. To the extent there is a conflict or inconsistency between
this Amendment and the original
<PAGE>
NBC Agreement as previously amended, the terms of this Amendment shall
govern.
IN WITNESS WHEREOF, the parties hereto have caused this amendment to be
executed and accepted by their duly authorized representatives effective as
of August 1, 1999.
ASCENT NETWORK SERVICES,
a division of Ascent Entertainment Group, Inc.
By: /s/ Larry O. Tennant
------------------------
Name: Larry Tennant
Title: Vice President, Network Operations
NATIONAL BROADCASTING COMPANY
By: /s/ John W. Eck
-------------------
Name: John W. Eck
Title: President, Broadcast & Network Operations
<PAGE>
THIS RIDER IS INTENTIONALLY DELETED IN ITS ENTIRETY
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS FOR THE SIX MONTHS ENDED JUNE 30, 1999 AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 69,326
<SECURITIES> 0
<RECEIVABLES> 38,208
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 220,543
<PP&E> 291,475
<DEPRECIATION> 0
<TOTAL-ASSETS> 618,125
<CURRENT-LIABILITIES> 64,352
<BONDS> 324,001
0
0
<COMMON> 297
<OTHER-SE> 151,102
<TOTAL-LIABILITY-AND-EQUITY> 618,125
<SALES> 0
<TOTAL-REVENUES> 134,596
<CGS> 0
<TOTAL-COSTS> 92,032
<OTHER-EXPENSES> 59,937
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 13,950
<INCOME-PRETAX> (27,844)
<INCOME-TAX> (1,303)
<INCOME-CONTINUING> (26,541)
<DISCONTINUED> (5,780)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (25,709)
<EPS-BASIC> (.86)
<EPS-DILUTED> (.86)
</TABLE>
