EXHIBIT 10.2
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment") is
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made as of October __, 1999 (the "Effective Date"), among ASCENT ENTERTAINMENT
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GROUP, INC., a Delaware corporation ("AEG"), ASCENT SPORTS HOLDINGS, INC., a
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Delaware corporation ("HC" and, together with AEG, "Seller"), LIBERTY DENVER
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ARENA LLC, a Delaware limited liability company ("LDA"), ▇▇▇▇▇ SPORTS, LLC, a
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Delaware limited liability company ("▇▇▇▇▇ Sports"), ▇▇▇▇▇ AVALANCHE, LLC, a
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Delaware limited liability company ("▇▇▇▇▇ Avalanche"), ▇▇▇▇▇ NUGGETS, LLC, a
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Delaware limited liability company ("▇▇▇▇▇ Nuggets"), ▇▇▇▇▇ ARENA, LLC, a
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Delaware limited liability company ("▇▇▇▇▇ Arena", and, together with ▇▇▇▇▇
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Sports, ▇▇▇▇▇ Avalanche and ▇▇▇▇▇ Nuggets, the "Original Purchasers") and
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COLORADO SPORTS AND ENTERTAINMENT, INC., a Delaware corporation ("COLORADO
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SPORTS" and, together with the Original Purchasers except for ▇▇▇▇▇ Sports, the
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"Purchasers"). The Seller, LDA, the Original Purchasers and Colorado Sports are
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referred to herein individually as a "Party" and collectively as the "Parties".
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All capitalized terms used herein but not otherwise defined herein shall have
the meanings given them in the Agreement (as herein defined).
RECITALS
A. The Seller, LDA and the Original Purchasers are parties to that certain
Purchase and Sale Agreement dated as of July 27, 1999 (the "Agreement").
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B. The Parties wish to amend the Agreement in accordance with Section
11.2(a) thereof.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and the
representations, warranties, covenants and agreements hereafter set forth, the
Parties agree as follows:
1. Assignment by ▇▇▇▇▇ Sports to Colorado Sports.
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(a) Pursuant to Section 11.3 of the Agreement, ▇▇▇▇▇ Sports hereby
assigns to Colorado Sports, and Colorado Sports hereby accepts from ▇▇▇▇▇
Sports, all of ▇▇▇▇▇ Sports' rights, interests and obligations under the
Agreement and the other Parties hereto hereby approve of such assignment.
(b) All references in the Agreement to "▇▇▇▇▇ Sports" are hereby
deleted and replaced with "Colorado Sports" and all references in the Agreement
to "▇▇▇▇▇ Sports, LLC, a Delaware limited liability company" are hereby deleted
and replaced with "Colorado Sports and Entertainment, Inc., a Delaware
corporation,", in each case, unless amended otherwise herein.
(c) All references to "Purchasers" in the Agreement shall be deemed to
be references to the Purchasers as herein defined.
2. Amendments to the Recitals.
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(a) The first sentence in Recital E of the Agreement is hereby amended
by deleting and replacing "▇▇▇▇▇ Arena" with "Colorado Sports."
(b) Recital G of the Agreement is hereby deleted and replaced in its
entirety with the following Recital:
"G. Prior to the Closing, LLC-I will transfer to HC (i) a .8% limited
partnership interest in Nuggets LP (the "LLC-I Nuggets LP Limited
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Partnership Interest"; and (ii) a 50% membership interest in Avalanche
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LLC (the "LLC-I Avalanche Membership Interest"). LLC-I will own, as of
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the Closing Date, a 1.0% general partnership interest in Nuggets LP
(the "LLC-I Nuggets LP General Partnership Interest")."
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(c) Recital K of the Agreement is hereby deleted and replaced in its
entirety with the following Recital:
"K. AEG desires to sell, on the terms and conditions set forth in
this Agreement, (i) to ▇▇▇▇▇ Nuggets, and ▇▇▇▇▇ Nuggets desires to
purchase from AEG, the portion of the AEG Nuggets LP Partnership
Interest that AEG does not transfer to HC prior to the Closing and
(ii) to Colorado Sports, and Colorado Sports desires to purchase from
AEG, the portion of the AEG Avalanche Membership Interest that AEG
does not transfer to HC prior to the Closing."
(d) Recital L of the Agreement is hereby amended by deleting and
replacing all references to "▇▇▇▇▇ Avalanche" with "Colorado Sports".
(e) Recital M of the Agreement is hereby amended by adding the
following clause at the end of such Recital:
" and the LLC-I Nuggets LP Limited Partnership Interest that LLC-I
transfers to HC prior to the Closing."
(f) Recital N of the Agreement is hereby amended by adding the
following clause at the end of such Recital:
" and the LLC-I Avalanche Membership Interest that LLC-I transfers to
HC prior to the Closing."
3. Amendments to Article I.
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(a) The following defined terms are hereby deleted from Article I of
the Agreement:
"LLC-I Nuggets LP Partnership Interest"
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"▇▇▇▇▇ Sports"
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(b) The following defined terms and corresponding definitions are
hereby added to Article I of the Agreement:
""Colorado Sports" has the meaning set forth in the introductory
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paragraph of this Agreement."
""LLC-I Nuggets LP General Partnership Interest" has the meaning set
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forth in Recital G."
""LLC-I Nuggets LP Limited Partnership Interest" has the meaning set
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forth in Recital G."
4. Amendments to Article II.
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(a) Section 2.2 of the Agreement is hereby amended by deleting and
replacing such Section in its entirety with the following:
"2.2 HC Ownership Interests. At Closing, subject to the terms and
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conditions of this Agreement, HC shall sell, transfer, convey and
deliver to (i) Colorado Sports, and Colorado Sports shall purchase
from HC, free and clear of all Liens, the LLC-I Membership Interest;
(ii) ▇▇▇▇▇ Avalanche, and ▇▇▇▇▇ Avalanche shall purchase from HC, free
and clear of all Liens, the portion of the AEG Avalanche Membership
Interests that AEG transfers to HC prior to Closing and the LLC-I
Avalanche Membership Interest that LLC-I transfers to HC prior to
Closing; and (iii) ▇▇▇▇▇ Nuggets, and ▇▇▇▇▇ 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 the Closing
and the LLC-I Nuggets LP Limited Partnership Interest that LLC-I
transfers to HC prior to Closing."
(b) Section 2.4 of the Agreement is hereby amended by deleting and
replacing each of the first two references to "▇▇▇▇▇ Arena" with "Colorado
Sports."
5. Amendments to Article III. Section 3.2(a)(iv) of the Agreement is
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hereby amended by adding the clause ". . .except for any amendments to the
Nuggets LP Amended and Restated Agreement of Limited Partnership contemplated by
this Agreement;"
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6. Amendments to Article IV.
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(a) Section 4.1 of the Agreement is hereby amended by (i) deleting the
word "and" before clause "(e)" and inserting the following after clause "(e)"
and prior to the parenthetical: "and (f) the LLC-I Nuggets LP Limited
Partnership Interest"; (ii) adding subsection (f) to the list of subsections in
the immediately following parenthetical; and (iii) deleting and replacing the
reference to "LLC-I Nuggets LP Partnership Interest" with "LLC-I Nuggets LP
General Partnership Interest".
(b) Section 4.2(a) of the Agreement is hereby amended by deleting and
replacing "▇▇▇▇▇ Arena" with "Colorado Sports".
(c) Section 4.2(d) of the Agreement is hereby amended by adding the
words "and Colorado Sports" after "▇▇▇▇▇ Arena".
(d) Section 4.2(e) of the Agreement is hereby amended by adding the
words "and Colorado Sports" after "▇▇▇▇▇ Arena".
(e) Section 4.5(a) of the Agreement is hereby amended by deleting and
replacing "▇▇▇▇▇ Avalanche" with "Colorado Sports".
(f) Section 4.5(c) of the Agreement is hereby amended by adding the
following clause at the end of said section:
". . . and in the LLC-I Nuggets LP Limited Partnership Interest that
LLC-I transfers to HC prior to the Closing."
(g) Section 4.5(d) of the Agreement is hereby amended by adding the
following clause at the end of said section:
". . . and in the LLC-I Avalanche Membership Interest that LLC-I
transfers to HC prior to Closing."
7. Amendments to Article V.
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(a) Section 5.1(b) of the Agreement is hereby amended by adding
"Nuggets LP," before the words "LLC-I" in the first and second sentences
thereof.
(b) Section 5.2(f)(i) of the Agreement is hereby amended by deleting
and replacing the chart contained therein with the following:
"AEG 1%
HC 99%"
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(c) Section 5.2(f)(ii) of the Agreement is hereby amended by replacing
"LLC-I" with "HC" therein.
(d) Section 5.2(f)(iii) of the Agreement is hereby amended by
inserting ", HC" after the words "Ascent Sports".
(e) Section 5.2(f)(iv) of the Agreement is hereby amended by
inserting ", HC" after the words "Ascent Sports".
(f) Section 5.2(g)(i) of the Agreement is hereby amended by deleting
and replacing the chart contained therein with the following:
"AEG 1%
HC 98%
LLC-I 1%"
(g) Section 5.2(g)(iii) of the Agreement is hereby amended by
inserting ", HC" after the words "Ascent Sports".
(h) Section 5.2(g)(iv) of the Agreement is hereby amended by
inserting ", HC" after the words "Ascent Sports".
8. Amendments to Article VI. This first sentence of Section 6.1 of the
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Agreement is hereby deleted and replaced with the following:
"Colorado Sports is a corporation and each of the other 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."
9. Amendments to Article X.
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(a) Section 10.5(d)(ii) of the Agreement is hereby amended by (i)
deleting the word "and" after subsection (D) contained therein; (ii) deleting
the period at the end of subsection (E) and replacing it with "; and"; and (iii)
inserting the following as a new subsection (F) thereof:
"(F) With respect to any additional Income Taxes of Seller (in excess
of Income Taxes otherwise incurred in connection with the transactions
contemplated by this Agreement) that are directly and solely
attributable to one or more of the following modifications to the
Agreement: (1) the substitution of Colorado Sports in this Agreement
in place of ▇▇▇▇▇ Sports, LLC; (2) the acquisition by Colorado Sports
of a 1% membership interest in Ascent Arena
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Company from AEG; (3) with regard to Nuggets LP, (a) the conversion of
an .8% general partnership interest into a limited partnership
interest, (b) the transfer by LLC-I to HC of the LLC-I Nuggets LP
Limited Partnership Interest, (c) Colorado Sports' acquisition of the
LLC-I Nuggets LP General Partnership Interest through its purchase of
the LLC-I Membership Interest from HC, and (d) HC's sale of the LLC-I
Nuggets LP Limited Partnership Interest; and (4) with regard to
Avalanche LLC, (a) LLC-I's transfer to HC of the LLC-I Avalanche
Membership Interest, and (b) HC's sale of the LLC-I Avalanche
Membership Interest."
(b) The indemnification provided by subsection (F) set forth above in
this paragraph 9 with respect to the transactions described in (F)(3)(d) and
(F)(4)(b) is limited to the extent of any additional Income Taxes incurred by
Seller as a result of the transactions described in (F)(3)(d) and (F)(4)(b), as
compared to the Income Taxes that would have been incurred pursuant to the
Agreement without giving effect to this Amendment.
10. Amendments to Article XI. Section 11.13 of the Agreement is hereby
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amended by adding the following subsection:
"(e) Immediately following the merger described in Section 11.13(b),
LLC-I and AEG as the partners of Nuggets LP will amend the Amended and
Restated Agreement of Limited partnership of The Denver Nuggets
Limited Partnership dated as of October 20, 1989, to effect a
reconstitution of LLC-I's 1.8% general partnership interest into a 1%
general partnership interest and a .8% limited partnership interest in
Nuggets LP."
11. Release of Guarantees and Indemnification.
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(a) Following the Closing, Purchasers shall use all reasonable efforts
to obtain, or cause to be obtained, the release of AEG from its guarantees (i)
under that certain Guaranty, dated November 14, 1997, of Ascent Arena Company's
obligations under the Environmental Responsibility Agreement dated as of
November 14, 1997 (as the same may from time to time be modified, extended or
otherwise amended, the "Environmental Responsibility Agreement"), and (ii) under
that certain Guaranty Agreement, dated as of November 1, 1997, of Ascent Arena
Company's obligations under the Redevelopment Agreement dated as of November 1,
1997, by and between Ascent Arena Company and the Denver Urban Renewal Authority
(as the same may from time to time be modified, extended or otherwise amended,
the "Redevelopment Agreement"). For the avoidance of doubt, for purposes of the
foregoing, reasonable efforts shall not require the execution of substitute
guarantees in any form.
(b) From the Closing until such time as the releases contemplated by
Section 11(a) are obtained, Purchasers shall cause Ascent Arena Company to
indemnify and hold harmless the Seller Indemnitees for all Damages actually
suffered or incurred by Seller as a result of Ascent Arena Company's breach of
the Environmental Responsibility Agreement or the Redevelopment Agreement
ocurring after the Closing Date. The procedures for indemnification
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set forth in Section 8.5 of the Agreement shall apply to any claims by Seller
for indemnification under this Section 11(b).
12. Representations and Warranties.
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(a) The Original Purchasers and Colorado Sports each represent,
warrant and covenant to Seller and LDA that, as of the date hereof, (i) each of
the Original Purchasers and Colorado Sports has all power and authority to enter
into this Amendment and to consummate the transactions contemplated hereby, (ii)
this Amendment constitutes a legal, valid and binding agreement of each of the
Original Purchasers and Colorado Sports, enforceable against each of them in
accordance with its terms, and (iii) the execution, delivery and performance by
the Original Purchasers and Colorado Sports of this Amendment does not and will
not (x) contravene or conflict with the certificate of incorporation or bylaws
of Colorado Sports or the limited liability company agreements of such other
entities, (y) contravene or conflict with or constitute a violation of any
Applicable Law binding upon or applicable to such entities, or (z) constitute a
default under any contract, agreement or other commitment to which any such
entity is a party or by which it is bound.
(b) Seller hereby represents, warrants and covenants to the Original
Purchasers and Colorado Sports that, as of the date hereof, (i) Seller has all
power and authority to enter into this Amendment and to consummate the
transactions contemplated hereby, (ii) the Amendment constitutes a legal, valid
and binding agreement of Seller, enforceable against Seller in accordance with
its terms, and (iii) the execution, delivery and performance by Seller of this
Amendment does not and will not (x) contravene or conflict with the certificate
of incorporation or bylaws of Seller, (y) contravene or conflict with or
constitute a violation of any Applicable Law binding upon or applicable to
Seller, or (z) constitute a default under any contract, agreement or other
commitment to which Seller is a party or by which it is bound.
13. Amendments to Schedules. Schedule 6.7 to the Agreement shall be
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replaced in its entirety with new Schedule 6.7 attached as Exhibit I hereto.
14. Captions. The captions in this Amendment are included for convenience
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of reference and shall be ignored in the construction or interpretation hereof.
15. Severability. If any provision of this Amendment, or the application
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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 Amendment 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 Amendment was
executed or last amended.
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16. Governing Law. This Amendment shall be construed in accordance with
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and governed by the internal laws (without reference to choice or conflict of
laws) of the State of Colorado.
17. Counterparts; Effectiveness. This Amendment may be signed in any
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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. Except
as expressly amended hereby, the terms and conditions of the Agreement shall
remain in full force and effect. The Agreement, as amended by this Amendment,
shall be binding upon the Parties hereto and their successors and permitted
assigns. This Amendment shall be effective as of the date first written above.
* * * * *
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COUNTERPART SIGNATURE PAGE TO
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AMONG ASCENT
ENTERTAINMENT GROUP, INC., LIBERTY DENVER ARENA LLC AND ▇▇▇▇▇
SPORTS, LLC, ▇▇▇▇▇ AVALANCHE, LLC, ▇▇▇▇▇ NUGGETS, LLC, ▇▇▇▇▇
ARENA, LLC AND COLORADO SPORTS AND ENTERTAINMENT, INC.
DATED AS OF OCTOBER __, 1999
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be
duly executed by their respective authorized officers or managers as of the day
and year first above written.
AEG:
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ASCENT ENTERTAINMENT GROUP, INC.,
a Delaware corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
HC:
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ASCENT SPORTS HOLDINGS, INC.,
a Delaware corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
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COUNTERPART SIGNATURE PAGE TO
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AMONG ASCENT
ENTERTAINMENT GROUP, INC., LIBERTY DENVER ARENA LLC AND
▇▇▇▇▇ SPORTS, LLC, ▇▇▇▇▇ AVALANCHE, LLC, ▇▇▇▇▇ NUGGETS, LLC,
▇▇▇▇▇ ARENA, LLC AND COLORADO SPORTS AND ENTERTAINMENT, INC.
DATED AS OF OCTOBER __, 1999
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers or managers as of the day
and year first above written.
▇▇▇▇▇ SPORTS:
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▇▇▇▇▇ SPORTS, LLC,
a Delaware limited liability company:
By: ▇▇▇▇▇ Sports Holdings, LLC
By:_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Managing Member
▇▇▇▇▇ AVALANCHE:
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▇▇▇▇▇ AVALANCHE, LLC,
a Delaware limited liability company:
By: ▇▇▇▇▇ Sports Holdings, LLC
By:_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Managing Member
COUNTERPART SIGNATURE PAGE TO
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AMONG ASCENT
ENTERTAINMENT GROUP, INC., LIBERTY DENVER ARENA LLC AND
▇▇▇▇▇ SPORTS, LLC, ▇▇▇▇▇ AVALANCHE, LLC, ▇▇▇▇▇ NUGGETS, LLC,
▇▇▇▇▇ ARENA, LLC AND COLORADO SPORTS AND ENTERTAINMENT, INC.
DATED AS OF OCTOBER __, 1999
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers or managers as of the day
and year first above written.
▇▇▇▇▇ NUGGETS:
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▇▇▇▇▇ NUGGETS, LLC,
a Delaware limited liability company
By: ▇▇▇▇▇ Sports Holdings, LLC
By:_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Managing Member
▇▇▇▇▇ ARENA:
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▇▇▇▇▇ ARENA, LLC,
a Delaware limited liability company
By: ▇▇▇▇▇ Sports Holdings, LLC
By:_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Managing Member
COLORADO SPORTS:
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COLORADO SPORTS AND
ENTERTAINMENT, INC.,
a Delaware corporation
By:_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
President and Chief Executive Officer
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COUNTERPART SIGNATURE PAGE TO
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AMONG ASCENT
ENTERTAINMENT GROUP, INC., LIBERTY DENVER ARENA LLC AND
▇▇▇▇▇ SPORTS, LLC, ▇▇▇▇▇ AVALANCHE, LLC, ▇▇▇▇▇ NUGGETS, LLC,
▇▇▇▇▇ ARENA, LLC AND COLORADO SPORTS AND ENTERTAINMENT, INC.
DATED AS OF OCTOBER __, 1999
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers or managers as of the day
and year first above written.
LDA:
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LIBERTY DENVER ARENA LLC,
a Delaware limited liability company
By: LMC Denver Arena, Inc.,
a Delaware corporation, its sole member
By:_________________________________
Name:______________________________
Title:_______________________________
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EXHIBIT I
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