1
Exhibit 10.10
TRANSFER AGREEMENT
TRANSFER AGREEMENT dated as of May 22, 1992, between
Cleveland Indians Baseball Company Limited Partnership, an
Ohio limited partnership (the "Transferor"), and Indians Club
Trust, a Delaware
business trust (the "Transferee").
WHEREAS in the regular course of its business, the Transferor
has entered, and will in the future enter, into the National Media Contracts
through the commissioner, as agent, and licensing contracts through MLB
Properties, as agent, and is also a party to the League Agreement, the Major
League Agreement and the Central Fund Agreement, which agreements give rise to
certain Rights and Revenues; and
WHEREAS the Transferor and the Transferee wish to set forth
the terms pursuant to which the Rights and the Revenues belonging to the
Transferor are to be transferred by the Transferor to the Transferee, which
transfer will constitute a contribution of capital to the Transferee pursuant to
the Club Trust Agreement; and
WHEREAS the Commissioner wishes to facilitate the transactions
contemplated hereby and by the Transaction Documents; and
WHEREAS the MLB Trust is assuming the obligation of the
Transferor to pay Commissioner Expenses; and
WHEREAS the Transferee intends to borrow money on a secured
basis from the MLB Trust by pledging all the Club Trust Estate (with the
exception of funds on deposit from time to time in the Distribution Account)
pursuant to the Club Trust Credit Facility and the Club Trust Pledge and
Security Agreement.
2
TRANSFER AGREEMENT 2
NOW, THEREFORE, in consideration of the foregoing, other good
and valuable consideration and the Mutual terms and covenants contained herein,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
-----------
SECTION 1.01. CAPITALIZED TERMS. Unless other wise defined in
this Agreement, capitalized terms shall have the meanings set forth in Annex A.
In addition, the interpretive guidelines set forth in Annex A shall be
applicable to this Agreement.
ARTICLE II
TRANSFER OF THE RIGHTS AND REVENUES
-----------------------------------
SECTION 2.01. TRANSFER OF THE RIGHTS AND REVENUES. As a
contribution of capital pursuant to the Club Trust Agreement, the Transferor
hereby agrees, pursuant to the Assignment, to transfer, assign, set over and
otherwise convey to the Transferee, without recourse (except for obligations
specifically set forth herein), all its Rights and Revenues how existing and
hereafter created and all proceeds of the foregoing. The foregoing transfer,
assignment, set-over and conveyance will not constitute, and is not intended to
result in, the creation or assumption by the Transferee of any obligations of
the Transferor or any other Person in connection with the Rights and Revenues,
including any obligations to the Obligors.
The Commissioner, to the extent that it Could be deemed to own
the Rights and Revenues purported to be conveyed pursuant to this Agreement
either as agent or on its own behalf, hereby transfers, assigns, sets over and
otherwise conveys to the Transferee any such Rights and Revenues now existing or
hereafter created.
It is understood and agreed that the Rights do not include the
rights of the Transferor to participate in any votes and decisions relating to
or regarding changes to, the enforcement of, waiver and replacements to any
agreement giving rise to the Rights, including the Major League Agreements, the
National Media Contracts and/or the MLB Properties licensing contracts.
3
TRANSFER AGREEMENT 3
SECTION 2.02. THE CLOSING. The transfer of the Rights and
Revenues shall take place at a closing (the "Closing") at the offices of ▇▇▇▇,
Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 1285 Avenue of the Americas, New York, N.Y.
10019-6064 on the Closing Date, simultaneously with the closings under the Club
Trust Agreement and each of the other Transaction Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF THE
TRANSFEREE. The Transferee hereby represents and warrants to the Transferor as
of the Closing Date:
(a) ORGANIZATION AND GOOD STANDING. The Transferee has been
duly organized under the Business Trust statute and is validly existing as a
business trust in good standing under the laws of the State of Delaware, with
the trust power and authority to own its properties and to do such activities
necessary with respect to such properties as are currently owned and such
activities as are presently conducted, and had at all relevant times, and has,
the power, authority and legal right to acquire and own the Rights and the
Revenues.
(b) POWER AND AUTHORITY. The Transferee has the trust power
and authority to execute and deliver this Agreement and to carry out its terms
and the execution, delivery and performance of this Agreement has been duly
authorized by the Transferee by all necessary trust action.
(c) APPROVALS. The Transferee has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such qualifications.
(d) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the Club
Trust Agreement, or any indenture, agreement or other instrument to which the
Transferee is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms
4
TRANSFER AGREEMENT 4
of any such indenture, agreement or other instrument (other than any Liens
created pursuant to the Transaction Documents); nor violate any law or, to the
best of the Transferee's knowledge, any order, rule or regulation applicable to
the Transferee of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Transferee or its properties.
(e) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Transferee's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Transferee or its properties: (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Transferee of its obligations under, or the validity or
enforceability of, this Agreement.
SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF THE
TRANSFEROR. (a) The Transferor hereby represents and warrants to the Transferee
as of the Closing Date:
(i) ORGANIZATION AND GOOD STANDING. The Transferor is a duly
organized and validly existing limited partnership and is in good
standing under the laws of the jurisdiction of its organization with
the limited partnership power and authority to own its properties and
to conduct its business as such properties are currently owned and such
business is presently conducted.
(ii) DUE QUALIFICATION. The Transferor has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall
require such qualifications and is duly qualified to do business as a
foreign limited partnership in good standing in all such jurisdictions
except where the failure to so qualify would not have a material
adverse effect on the Rights and Revenues.
(iii) DUE AUTHORIZATION. The Transferor has the requisite
limited partnership power and authority to execute and deliver this
Agreement and to carry out its terms; the Transferor has full power and
authority to
5
TRANSFER AGREEMENT 5
transfer and assign the property to be transferred and assigned to the
Transferee and the Transferor shall have duly authorized such transfer
and assignment to the Transferee by all necessary corporate or
partnership actions, as the case may be; and the execution, delivery
and performance of this Agreement has been duly authorized by the
Transferor by all necessary corporate or partnership action, as the
case may be.
(iv) NO CONFLICT OR VIOLATION. The consummation of the
transactions contemplated by this Agreement and the Transaction
Documents and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the constitutive documents of the Transferor, or any material
indenture, agreement or other instrument to which the Transferor is a
party or by which it or any of its properties are bound (including the
League Agreement and the major League Agreement); nor result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Transaction Documents); nor violate any law
or, to the best of the Transferor's knowledge, any order, rule or
regulation applicable to the Transferor of any court or of any Federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its
properties.
(v) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Transferor's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its
properties: (i) asserting the invalidity of this Agreement or any other
of the Transaction Documents, (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or any other
of the Transaction Documents or (iii) seeking any determination or
ruling that might materially and adversely affect the Rights and
Revenues or the performance by the Transferor of its obligations under,
or the validity or enforceability of, this Agreement or any other of
the Transaction Documents.
6
TRANSFER AGREEMENT 6
(vi) ALL CONSENTS REQUIRED. All appraisals, authorizations,
consents, orders, approvals or other actions of any Person (including
the commissioner) or of any governmental body or official required in
connection with the execution and delivery of the Transaction Documents
to which the Transferor is a party and the performance of the
transactions contemplated by such Transaction Documents, have been
obtained.
(vii) ENFORCEABILITY. This Agreement constitutes a legal,
valid and binding obligation of the Transferor enforceable against the
Transferor in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting
the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(viii) SOLVENCY. The Transferor is not entering into this
Agreement with the actual intent to hinder, delay or defraud its
current or future creditors, nor does the Transferor intend to or
believe that it will incur, as a result of entering into this
Agreement, debts beyond its ability to repay. The Transferor is not as
of the date of this Agreement "insolvent" as that term is defined in 11
U.S.C. ss. 101(32) or under the fraudulent conveyance laws of the State
of Ohio, nor will the consummation of the transactions contemplated by
this Agreement render the Transferor insolvent (giving effect to the
fair valuation of its assets) or result in the Transferor having
unreasonably small capital for the conduct of its business.
(ix) FINANCIAL STATEMENTS. The financial statements furnished
by or on behalf of the Transferor to the commissioner pursuant to the
Commissioner Letter present fairly (and all future financial statements
when delivered will present fairly), in all material respects, the
financial condition and the results of operations of the Transferor as
of the date thereof in accordance with generally accepted accounting
principles. There have been no material adverse changes in the
financial condition of the Transferor subsequent to the date of the
most recent financial statements and prior to the Closing Date. All
financial statements
7
TRANSFER AGREEMENT 7
prepared by the Transferor after the date of this Agreement shall
clearly indicate that the Rights and Revenues have been transferred to
the Club Trust.
(x) BENEFIT PLANS. (A) Schedule 3.02(a)(x) sets forth a list
and brief description of all "employee pension benefit plans" (as
defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA")), exclusive of any such plans not subject
to ERISA Section 302 and any multiemployer plans maintained, or
contributed to, by the Transferor for the benefit of any officers or
employees of the Transferor (sometimes referred to herein, exclusive of
any multiemployer plan, as the "Pension Plans").
(B) Except as set forth on Schedule 3.02(a)(x), there are no
termination proceedings, suits or other proceedings against or
involving any Pension Plan that could give rise to any material
liability to the Transferor.
(C) Except as set forth on Schedule 3.02(a)(x), (x) all
material contributions to the Pension Plans that have been required to
be made in accordance with the Pension Plans and Section 302 of ERISA
or Section 412 of the Code, have been timely made, (y) no Pension Plan
has applied for or received a waiver of the minimum funding standards
imposed by Section 412 of the Code and (z) no Pension Plan has an
"accumulated funding deficiency" within the meaning of Section 412(a)
of the Code as of the most recent plan year.
(D) Except as set forth on Schedule 3.02(a)(x), none of the
Pension Plans has been terminated in a "distress termination" (as
defined in Section 4041(c) of ERISA) nor have there been any
"reportable events" (as defined in Section 4043 of ERISA and the
regulations thereunder) within the last two years with respect to any
Pension Plan the assets of which, as of the most recent actuarial
report, were less than 100% of the Plan's present value of accrued
benefits (as described in such report).
(E) No Pension Plan subject to Title IV of ERISA (including
for the purposes of this paragraph (E) and the following paragraph (F)
any Pension Plan maintained
8
TRANSFER AGREEMENT 8
or contributed to by any subsidiary or any other affiliate of the
Transferor) has incurred any material liability to the Pension Benefit
Guaranty Corporation other than for the payment of premiums, all of
which have been paid when due.
(F) As of the most recent valuation date for each Pension Plan
that is a defined benefit pension plan, the present value of the
current liabilities (as defined in Section 412(l)(7) of the Code and as
computed by the actuaries for such Pension Plan using the actuarial
assumptions in effect for such purposes as reflected in the most recent
actuarial report or valuation for such Pension Plan) of all
participants and former participants in such Pension Plan did not
exceed the fair market value of its assets.
(G) Except as set forth on Schedule 3.02(a)(X), the Transferor
has not been required to contribute any material amount to any
"multiemployer plan" (as defined in Section 4001(a)(3) of ERISA), other
than the Major League Baseball Players Pension Plan, or incurred any
material withdrawal liability, within the meaning of Section 4201 of
ERISA, which liability has not either been fully paid as of the date
hereof or reflected on the Transferor's books, or announced an
intention to withdraw, but not yet completed such withdrawal, from any
multiemployer plan which withdrawal could give rise to a material
liability. If the Transferor were to make a complete withdrawal from
each such multiemployer plan, other than the Major League Baseball
Players Pension Plan, within the meaning of Section 4203 of ERISA, the
withdrawal liability of the Transferor would not be material.
(b) The Transferor makes the following representations and
warranties as to its Rights and Revenues on which the Transferee relies in
accepting such Rights and Revenues. Such representations and warranties are made
as of the execution and delivery of this Agreement, but shall survive the
transfer and assignment of such Rights and Revenues to the Transferee and the
subsequent assignment and transfer of such Rights and Revenues pursuant to the
Club Trust Pledge and Security Agreement and the MLB Pledge and Security
Agreement:
(i) MEMBERSHIP. The Transferor is a member in good. standing
of its League and Major League Baseball.
9
TRANSFER AGREEMENT 9
(ii) COMPLIANCE. Compliance with all requirements imposed by
the Commissioner, its League or Major League Baseball, except where the
failure to do so would not materially adversely affect the Rights and
Revenues to be transferred pursuant to this Agreement; the Transferor
is in compliance with the terms of the Major League Agreement, the
Central Fund Agreement, its League Agreement, the MLBP Agreements and
each of the National Media Contracts, except where the failure to do so
would not materially adversely affect the Rights and Revenues to be
transferred pursuant to this Agreement.
(iii) BOUND BY AGREEMENTS. All the provisions of the
constitutive documents of its League and the Major League Agreement,
including any amendments from time to time, all Commissioner
resolutions and all resolutions of the Executive Council, and rules or
policies as the Executive Council or the Commissioner may issue from
time to time that are within the issuing party's jurisdiction and that
relate to the Rights and Revenues, are, unless the same by their terms
are not applicable to the Transferor, binding and enforceable against
the Transferor, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit
at law or in equity).
(iv) NATIONAL MEDIA CONTRACTS. (A) To the best knowledge of
the Transferor, each National Media Contract is legally binding and
enforceable against the Obligor thereunder; (B) the Transferor, along
with the other Major League Clubs, is the owner of an undivided Pro
Rata interest in each National Media contract and such Pro Rata
interest is not subject to any prior Lien; (C) to the best knowledge of
the Transferor, no Bankruptcy Event has occurred or is threatened with
respect to the Obligor under any National Media Contract; and (D) the
Transferor is entitled to receive a Pro Rata portion of the Revenues
from National Media Contracts payable from time to time.
(v) VALID TRANSFER. The transfer and assignment herein
contemplated constitutes a true
10
TRANSFER AGREEMENT 10
transfer, by capital contribution, Of its Rights and Revenues from the
Transferor to the Transferee such that the Transferor retains no
interest in, or any risk with respect to, such Rights and Revenues and
such that the beneficial interest in and title to its Rights and
Revenues not be part of the debtor's estate in the event of the filing
of a bankruptcy petition by or against the Transferor under any
bankruptcy law. Other than as set forth on Schedule 3.02(b)(v),
immediately prior to the transfer and assignment herein contemplated,
the Transferor had good and marketable title to all its Rights and
Revenues free and clear of all Liens and, immediately upon the transfer
thereof, the Transferee shall have good and marketable title to all
such Rights and Revenues, free and clear of all Liens (other than Liens
pursuant to the Transaction Documents); and the transfer has been
perfected under the UCC.
(vi) LAWFUL ASSIGNMENT. None of the Transferor's Rights or
Revenues is subject to the laws of any jurisdiction under which the
transfer and assignment of such Rights or Revenues under this
Agreement, the Club Trust Credit Facility, the MLB Credit Agreement,
the MLB Pledge and Security Agreement or the Club Trust Pledge and
Security Agreement is unlawful, void or voidable.
(vii) ALL FILINGS MADE. All filings (including UCC filings)
necessary in any Jurisdiction to give the Transferee a first perfected
ownership interest in the Transferor's Rights and Revenues have been
made.
ARTICLE IV
CONDITIONS
----------
SECTION 4.01. CONDITIONS TO OBLIGATION OF THE TRANSFEREE. The
obligation of the Transferee to accept the Rights and Revenues of the Transferor
is subject to the satisfaction of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of the Transferor set forth in Section 3.02 shall be true and
correct in all material respects on the Closing Date and the Transferor shall
have
11
TRANSFER AGREEMENT 11
performed all obligations to be performed by it hereunder on or prior to the
Closing Date.
(b) DOCUMENTS TO BE DELIVERED BY THE TRANSFEROR AT THE
CLOSING.
(i) THE ASSIGNMENT. At the Closing, the Transferor will
execute and deliver an Assignment in the form of Exhibit A hereto.
(ii) EVIDENCE OF UCC FILING. On or prior to the Closing Date,
the Transferor shall deliver and shall cause the Commissioner to
deliver, at its own expense, an executed UCC-1 financing statement in
each jurisdiction in which required by applicable law, executed by the
Transferor (or, as necessary, the Commissioner), as seller and debtor,
and naming the Transferee, as purchaser and secured party, describing
the Rights and Revenues as collateral, meeting the requirements of the
laws of each such jurisdiction and in such manner as is necessary to
perfect the transfer, assignment and conveyance of such Rights and
Revenues to the Transferee.
(iii) DUE AUTHORIZATION AND GOOD STANDING. On or prior to the
Closing Date, the Administrative Agent, on behalf of the Transferee,
shall have received from the Transferor, as appropriate, (a) corporate,
partnership or other authorizing resolutions, approving and adopting
the Transfer Agreement and authorizing the execution and delivery
thereof, in form and substance satisfactory to the Administrative
Agent, (b) the charter documents and by-laws or the agreement or other
formative documents of the Transferor and (c) certificates of good
standing for the Transferor from the jurisdiction of the Transferor's
organization and each other jurisdiction where the failure of the
Transferor to be qualified and/or in good standing could have a
material adverse effect- on the Rights and Revenues.
(iv) LEGAL OPINIONS. On the Closing Date, the Administrative
Agent, on behalf of the Transferee, shall have received (a) the legal
opinion of counsel to the Transferor, in substantially the form
attached hereto as Exhibit B, (b) the legal opinion of the Counsel to
the Club Trust and the MLB Trust in substantially the form attached
hereto as Exhibit C and (c) the legal opinion of Counsel to the
Transferee and
12
TRANSFER AGREEMENT 12
the Commissioner in substantially the form attached hereto as Exhibit
D.
(v) OFFICERS CERTIFICATE. The Administrative Agent shall have
received a certificate in the form attached hereto as Exhibit E dated
the Closing Date of an authorized officer or partner of the Transferor
in which such officer or partner shall state that, to the best of their
knowledge after reasonable investigation, the representations and
warranties of the Transferor contained herein and in the Club Trust
Agreement are true and correct, and that the Transferor has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied under the Transaction Documents on or prior to
the Closing Date.
(vi) OTHER DOCUMENTS. Such other documents as the Transferee
may reasonably request.
(c) OTHER TRANSACTIONS. The transactions contemplated by the
Transaction Documents to be consummated on the Closing Date, shall be
consummated on such date.
SECTION 4.02. CONDITIONS TO OBLIGATION OF THE TRANSFEROR;
REPRESENTATIONS AND WARRANTIES TRUE. The obligation of the Transferor to
transfer its Rights and Revenues to the Transferee is subject to the
satisfaction of the condition that the representations and warranties of the
Transferee hereunder shall be true and correct in all material respects on the
Closing Date and the Transferee shall have performed all obligations to be
performed by it hereunder on or prior to the Closing Date.
ARTICLE V
COVENANTS OF THE TRANSFEROR
---------------------------
SECTION 5.01. PERFORMANCE OF OBLIGATIONS; CONDUCT OF BUSINESS.
The Transferor agrees to perform all its obligations necessary to maintain the
Rights and create the Revenues. Without limiting the generality of the
foregoing, the Transferor agrees (a) to conduct its business in a manner
consistent with past practice to the extent that failure to do so would have an
adverse effect on the Rights and Revenues, (b) to continue to play baseball,
except for business interruptions during a labor dispute or where prevented by
force majeure and to perform all its oblig-
13
TRANSFER AGREEMENT 13
ations under the League Agreement, the Major League Agreement, the Central Fund
Agreement, the MLB Agreement and the National Media Contracts in all material
respects, (c) to use its best efforts to preserve intact its business
organization. The Transferor will promptly notify the Administrative Agent on
behalf of the Transferee of any change in the financial condition, results of
operations, properties or prospects of Transferor's business which could have a
material adverse effect on the Rights or the Revenues.
SECTION 5.02. FUTURE NATIONAL MEDIA CONTRACTS AND SUPERSTATION
AGREEMENTS. The Transferor agrees not to enter into any National Media Contracts
or superstation Agreements other than through the Commissioner and pursuant to
the Central Fund Agreement. The Transferor agrees to request that the
Commissioner include a provision in any National Media Contract or Superstation
Agreement entered into subsequent to the date hereof to the effect that the
rights of the Transferor to receive revenues under such agreements have been
transferred to the Transferee pursuant to this Agreement. The Transferor agrees
that all rights to receive revenues benefitting it under any future National
Media Contracts and Superstation Agreements will be part of the Rights
transferred pursuant to this Agreement.
SECTION 5.03. FUTURE LICENSING CONTRACTS. The Transferor
agrees not to enter into any licensing agreements or replacements to the MLB
Properties Agreement other than through MLB Properties (except as permitted by
the MLB Properties Agreement). The Transferor agrees to request that the
Commissioner include a provision in any future MLB Properties Agreement to the
effect that the rights of the Transferor to receive revenues under such
agreement have been transferred to the Transferee pursuant to this Agreement.
The Transferor agrees that all rights to receive payments benefitting it under
any future MLB Properties Agreement will be part of the Rights transferred
pursuant to this Agreement.
SECTION 5.04. OPPOSE CHANGE. (i) The Transferor agrees not to
recommend, vote in favor of or advocate and to oppose and vote against any
action to change in any way the terms of any of the Major League Agreements in a
manner which is or may be materially adverse to the Rights or the Revenues
transferred pursuant to this Agreement (including, without limitation, any
change in the authorization of the Commissioner to negotiate and enter into
National Media Contracts) and (ii) the Transferor also agrees not to
14
TRANSFER AGREEMENT 14
recommend, vote in favor of or advocate and to oppose and vote against any
action to eliminate or reduce under any circumstances (including without
limitation, the bankruptcy or insolvency of any Participating Club or the
withdrawal or expulsion of any Participating Club, but excluding any Pro Rata
reduction resulting from the expansion in the number of Clubs) each Club Trust's
right to a Pro Rata share of Revenues (which is being transferred to the
respective Club Trusts pursuant to this Agreement and the other Transfer
Agreements).
SECTION 5.05. VOTING. It is the intention of the Transferee
and the Transferor that the Transferor be free to exercise its reasonable
business judgment with respect to the administration of the Rights (including
decisions on waivers, enforcement, renegotiations or exercise of options with
respect to all agreements or contracts relating to the Rights); PROVIDED,
HOWEVER, that the Transferor (i) agrees to act in a manner consistent with the
covenants and purposes of this Agreement and (ii) not to take any actions that
are intended or have the effect of depriving the Transferee of the benefits
intended to be conveyed by this Agreement or contravening the purposes of the
Transaction Documents.
SECTION 5.06. PROTECTION OF RIGHT, TITLE AND INTEREST. The
Transferor shall, at the request of the Administrative Agent acting on behalf of
the Transferee, cause this Agreement, all amendments hereto, the Assignment, and
all financing statements and continuation statements and any other necessary
documents covering the right, title and interest of the Transferee in and to the
Rights and Revenues and the other property included in the Club Trust Estate to
be promptly filed, and at all times to be kept recorded, registered and filed,
all in such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of the Transferee hereunder
to the Rights and Revenues and the other property included in the Club Trust
Estate. The Transferor shall, at the request of the Administrative Agent acting
on behalf of the Transferee, deliver to the Administrative Agent file stamped
copies of, or filing receipts for, any document recorded, registered or filed as
provided above, as soon as available following such recordation, registration or
filing and such other documents or instruments as the Administrative Agent shall
request to evidence a transfer or protect and preserve the Transferee's right,
title and interest in the Club Trust Estate. The Transferee shall cooperate
fully with the Transferor in
15
TRANSFER AGREEMENT 15
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this paragraph.
SECTION 5.07. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF,
THE OBLIGATIONS OF THE TRANSFEROR. The Transferor shall not consolidate with or
merge into any other corporation or entity or convey or transfer substantially
all of its assets as an entirety or its ownership interest in the MLB Trust or
the Club Trust to any Person, unless:
(a) the corporation or entity formed by such consolidation or
into which the Transferor is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Transferor or
substantially as an entirety (or the ownership interest in the MLB
Trust or the Club Trust) shall be duly organized and validly existing
under the laws of the jurisdiction of its organization and, if the
Transferor is not the surviving entity, such corporation or entity, or
such Person which so acquires such properties and assets shall
expressly assume all obligations under this Agreement, by an agreement
supplemental hereto, in form satisfactory to the Transferee and the
Administrative Agent, executed and delivered to the Transferee and the
Administrative Agent; and
(b) the Transferor has delivered to the Transferee and the
Administrative Agent an officers' certificate and an opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer
comply with this Section 5.07 and that all conditions precedent herein
provided for relating to such transaction have been complied with and
as to such other matters as the Administrative Agent shall reasonably
request.
SECTION 5.08. NAME CHANGE. Within 15 days after the Transferor
makes any change in its name, identity or corporate or partnership structure
which would make any financing statement or continuation statement filed in
connection with this Agreement misleading within the applicable provisions of
the UCC or any title statute, the Transferor shall give the Administrative Agent
notice of any such change, and no later than 5 days after the effective date
thereof, shall file such financing statements or amendments as may be necessary
to continue the perfection of
16
TRANSFER AGREEMENT 16
the Transferee's interest in the property included in the Club Trust Estate.
SECTION 5.09. POWER OF ATTORNEY. (a) Effective on the Closing
Date, the Transferor hereby constitutes and appoints the Administrative Agent on
behalf of the Transferor and its successors, legal representatives and assigns
the true and lawful attorneys of the Transferor, with full power of
substitution, in the name of the Transferor or the Transferee, but on behalf of
and for the benefit of the Transferee and its successors, legal representatives
and assigns, and at the expense of the Transferee: (i) to demand and receive
from time to time any and all of the Rights and Revenues and to make
endorsements and give receipts and releases for and in respect of the same and
any part thereof; (ii) to institute, prosecute, compromise and settle any and
all proceedings at law, in equity or otherwise that the Transferee and its
successors, legal representatives or assigns may deem proper in order to
collect, assert or enforce any claim, right or title of any kind in or to the
Rights and Revenues; (iii) to defend or compromise any or all actions, suits or
proceedings in respect of any of the Rights and Revenues; and (iv) to do all
such acts and things in relation to the matters set forth in the preceding
clause (i) through (iii) as the Transferee and its successors, legal
representatives or assigns shall deem desirable; Provided, however, that nothing
set forth in this Section 5.09 shall, or be deemed to, deprive the Commissioner
of his exclusive rights under the Major League Agreements and the National Media
Contracts to administer and enforce the National Media Contracts. The Transferor
hereby agrees that the appointment hereby made and the powers hereby granted are
coupled with an interest and are not and shall not be revocable by it in any
manner or for any reason. The Transferor shall deliver to the Transferee at
Closing an acknowledged power of attorney to the foregoing effect executed by
the Transferor.
SECTION 5.10. OTHER LIENS OR INTERESTS. Except for the
conveyances hereunder and pursuant to the Club Trust Pledge and Security
Agreement and the other Transaction Documents, the Transferor will not sell,
pledge, assign or transfer to any Person, or grant, create, incur, assume or
suffer to exist any Lien on, any interest in, to and under the Rights and
Revenues, and the Transferor shall defend, at its own cost and expense, the
right, title and interest of the Transferee in, to and under the Rights and
Revenues, whether now existing or hereafter created, against all
17
TRANSFER AGREEMENT 17
claims of third parties claiming through or under the Transferor. The Transferor
shall notify the Administrative Agent on behalf of the Transferee promptly after
becoming aware of any Lien on any Rights and Revenues other than as a result of
the conveyances hereunder or under the other Transaction Documents.
SECTION 5.11. INDEMNIFICATION. If subsequent to the date of
this Agreement, the Club Trust's Rights and Revenues are reduced or eliminated
(other than on a Pro Rata ,basis amongst all Clubs) as a result of (i) the
modification of any of the Major League Agreement, the League Agreement, the
Central Fund Agreement or the MLB Properties Agreement or (ii) the Transferor no
longer being a member of its League or Major League Baseball, the Transferee
shall be indemnified to the extent of any amounts owed by the Transferee under
the Note and the Club Trust Pledge and Security Agreement.
SECTION 5.12. FURTHER ASSURANCES. From and after the Closing,
upon the request of the Administrative-Agent acting on behalf of the Transferee,
the Transferor shall, and shall cause any Affiliate of the Transferor having any
interest in the Rights and Revenues to execute, acknowledge and deliver all such
further acts, assurances, deeds, assignments, transfers, conveyances and other
instruments and papers as may be required to transfer, assign, convey and
deliver to and vest in the Transferee, and protect its right, title and interest
in and employment of, all the Rights and Revenues intended to be transferred,
assigned, conveyed and delivered to the Transferee pursuant to this Agreement,
and as otherwise appropriate to carry out the transactions contemplated by the
Transaction Documents.
SECTION 5.13. PLACE OF BUSINESS. The Transferor will promptly
inform the Administrative Agent, on behalf of the Transferee, of any change in
the name or location of the Transferor (including without limitation as a result
of the relocation of the Club owned and operated by the Transferor) which might
require new filings or other actions to protect the ownership interest of the
Transferee in the Rights and Revenues.
SECTION 5.14. PROHIBITION AGAINST TRANSFER OF CERTAIN RIGHTS.
For so long as the Transferee has outstanding any obligations under the Club
Trust Credit Facility and its Club Trust Pledge and Security Agreement, the
Transferor will not sell, assign, convey, pledge or
18
TRANSFER AGREEMENT 18
otherwise transfer all or any part of its right, title and interest in and to
the National Media Contracts, the MLBP Agreements or the Major League Agreements
(that are not transferred pursuant to this Agreement) to any other Person other
than in a merger, consolidation or conveyance or transfer of its properties and
assets substantially as an entirety in a transaction meeting the requirements of
Section 5.07; PROVIDED, HOWEVER, that notwithstanding the foregoing, the
Transferor may transfer, pledge or assign any of its right, title and interest
in and to the National Media Contracts, the MLBP Agreements or the Major League
Agreements to secure any obligations of the Transferor to any Person; PROVIDED,
FURTHER, that any such Person acknowledges in writing addressed to the
Administrative Agent its obligations to take subject to the terns of this
Agreement in the event such Person exercises its right as a secured creditor and
forecloses on such collateral.
SECTION 5.15 ACCESS TO INFORMATION. The Transferor shall, and
shall use its reasonable best efforts to cause the Commissioner to, provide
reasonable access, during normal business hours, to the Administrative Agent on
behalf of the Transferee to inspect the offices, books and records of the
Transferor and the Commissioner relating to the Rights and Revenues transferred
pursuant to this Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
------------------------
SECTION 6.01. OBLIGATIONS OF TRANSFEROR. The obligations of
the Transferor under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any of the property consisting of the
Club Trust Estate.
SECTION 6.02. MLB TRUST. The Transferor acknowledges and
agrees that (a) the Transferee will, pursuant to the Club Trust Pledge and
Security Agreement, pledge the Rights and Revenues to the MLB Trust and assign
its rights under this Agreement to the MLB Trust, (b) the MLB Trust will,
pursuant to the MLB Credit Agreement and the MLB Pledge and Security Agreement,
assign such rights to the Administrative Agent for the ratable benefit of the
Banks and (c) the representations, warranties and covenants contained in this
Agreement and the rights of the Transferee under this Agreement are intended to
benefit the MLB Trust
19
TRANSFER AGREEMENT 19
and the Banks. The Transferor hereby consents to all such pledges and
assignments and agrees that the Administrative Agent may enforce all provisions
of this Agreement on behalf of any of the Transferee, the MLB Trust or the Banks
directly against the Transferor without any request to have the Transferee, the
MLB Trust or the Banks join in such action and without any of them joining in
such action.
SECTION 6.03. AMENDMENT. This Agreement may be amended by the
Transferor and the Transferee, but only with the written consent of the Required
Banks.
SECTION 6.04. WAIVERS. No failure or delay on the part of the
Transferee in exercising any power, right or remedy under this Agreement or the
Assignment shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy.
SECTION 6.05. NOTICES. All demands, notices and communications
under this Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, and shall be deemed to have been duly
given upon receipt (a) in the case of the Transferor, to Cleveland Indians
Baseball Company Limited Partnership, Municipal Stadium, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.; (b) in the case of
the Transferee, addressed to Wilmington Trust Company, Corporate Financial
Services Division, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (c) in the
case of the Administrative Agent, to Citibank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: Bank Loan Syndication or as to each of the
foregoing, at such other address as shall be designated by written notice to the
other parties.
SECTION 6.06. COSTS AND EXPENSES. The Transferor will pay all
expenses incident to the performance of its obligations under this Agreement and
the Transferor agrees to Pay all reasonable out-of-pocket costs and expenses of
the Transferee, including fees and expenses of counsel, in connection with the
perfection as against third parties of the Transferee's right, title and
interest in and to the Rights and Revenues and the enforcement of any obligation
of the Transferor hereunder.
20
TRANSFER AGREEMENT 20
SECTION 6.07. REPRESENTATIONS AND COVENANTS TO SURVIVE. The
respective agreements, representations, ,warranties and other statements by the
Transferor and the Transferee set forth in or made pursuant to this Agreement
shall remain in full force and effect and will survive the closing under Section
2.02.
SECTION 6.08. HEADINGS AND CROSS-REFERENCES. The various
headings in this Agreement are included for convenience only and shall not
affect the meaning or interpretation of any provision of this Agreement.
References in this Agreement to Section names or numbers are to such Sections of
this Agreement.
SECTION 6.09. GOVERNING LAW. THIS AGREEMENT AND THE
ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS.
SECTION 6.10. COUNTERPARTS. This Agreement may be executed in
two or more counterparts and by different parties on separate counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
SECTION 6.11. SECURITY INTEREST. If for any reason this
Agreement and the Assignment fail to convey good title to all or a portion of
the Rights and Revenues to the Transferee, the Transferor hereby sells, assigns,
conveys, transfers, delivers and sets over unto the Transferee and hereby grants
the Transferee a first priority perfected "security interest" (as defined in the
UCC) in, all right, title
21
TRANSFER AGREEMENT 21
and interest of the Transferor in, under and to such rights and Revenues and the
proceeds thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers duly authorized as of the
date and year first above written.
INDIANS CLUB TRUST,
by WILMINGTON TRUST COMPANY,
not in its individual
capacity by solely as Club
Trustee,
by /s/ illegible
-------------------------
Name:
Title:
CLEVELAND INDIANS BASEBALL
COMPANY LIMITED PARTNERSHIP,
by CLEVELAND BASEBALL CORPORATION,
GENERAL PARTNER
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman and
Chief Executive Officer
Acknowledged and Agreed:
OFFICE OF THE COMMISSIONER
OF BASEBALL, on its own
behalf and as Agent for
the Transferor under the
Central Fund Agreement
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Deputy Commissioner
22
AMENDMENT NO. 1 dated as of December 20, 1993, to ASSIGNMENT
dated as of May 22, 1992 (the "Assignment"), by CLEVELAND
INDIANS BASEBALL COMPANY LIMITED PARTNERSHIP, an Ohio limited
partnership (the "Transferor"), and OFFICE OF THE COMMISSIONER
OF BASEBALL, on its own behalf and as Agent for the Transferor
under the Central Fund Agreement (the "Commissioner").
WHEREAS on May 22, 1992, the Transferor and the Commissioner delivered
the Assignment pursuant to which they transferred to the Transferee (as defined,
together with each capitalized term used herein and not defined herein, as
provided in the Assignment) all of their respective right, title and interest in
and to the Rights and Revenues;
WHEREAS concurrently herewith, the parties to the Transfer Agreement
are entering into Amendment No. 1 dated as of December 20, 1993 ("Amendment No.
1 to Transfer Agreement"), to Transfer Agreement dated as of May 22, 1992; and
WHEREAS, the Transferor and the Commissioner now desire to amend the
Assignment as follows:
1. REFERENCES TO TRANSFER AGREEMENT. The Assignment is hereby amended
such that all references therein to the Transfer Agreement shall be references
to the Transfer Agreement, as amended by Amendment No. 1 to Transfer Agreement.
2. EFFECT OF AMENDMENT. Except as specifically amended hereby, the
Assignment shall continue in full force and effect in accordance with the
provisions thereof as in existence on the date hereof.
23
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the day and year this Amendment to be duly executed as of
the day and year first above written.
CLEVELAND INDIANS BASEBALL COMPANY
LIMITED PARTNERSHIP,
By: CLEVELAND BASEBALL
CORPORATION, General Partner,
By: /s/ ▇. ▇▇▇▇▇▇
----------------------------
Name:
Title:
OFFICE OF THE COMMISSIONER OF
BASEBALL, on its own behalf and as
Agent for the Transferor under the
Central Fund Agreement,
By: /s/ illegible
----------------------------
Name:
Title: