arena lease and management agreement city of glendale, arizona ...

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SUBSTANTIAL FINAL DRAFT 11/27/12 12:35 Agreement by written notice to the City at any time on or before the end of the Due Diligence Review Period if it is not satisfied with the results of its Due Diligence Review or if it is unable to obtain, on reasonable terms, any third party consents required under any Key Contracts (a “Due Diligence Termination Notice”). Delivery by the Arena Manager of a Due Diligence Termination Notice under this Section 17.1.1 shall terminate all obligations of the parties under this Agreement and the Noncompetition/Non-Relocation Agreement. In the event that the Arena Manager does not provide such Due Diligence Termination Notice by or before the end of the Due Diligence Review Period, the Arena Manager shall be deemed to waived all rights of termination set forth in this Section 17.1.1 and the Arena Manager shall thereafter have no right to terminate this Agreement or the Noncompetition/Non-Relocation Agreement based on the Arena Manager Due Diligence Review; provided however that such waiver of these termination rights shall be without prejudice to the Arena Manager’s other termination rights provided for in this Agreement. 17.1.2 Team Owner Due Diligence Review. The Team Owner shall have the Due Diligence Review Period to conclude its due diligence review (the “Team Owner Due Diligence Review”) of all aspects of the Team and the Arena, including without limitation all financial, legal, regulatory, business and operational matters, and to obtain any third party consents required under the Key Contracts. During the Due Diligence Review Period, the City shall reasonably cooperate with such due diligence as reasonably requested by the Team Owner, including, but not limited to, permitting the Team Owner and its agents reasonable access to materially relevant information reasonably requested by the Team Owner. The Team Owner shall have the right, in its sole discretion, to terminate this Agreement and the Noncompetition/Non-Relocation Agreement by a Due Diligence Termination Notice to the City at any time on or before the end of the Due Diligence Review Period if it is not satisfied with the results of its Due Diligence Review or if it is unable to obtain, on reasonable terms, any third party consents required under any Key Contracts. Delivery by the Team Owner of a Due Diligence Termination Notice under this Section 17.1.2 shall terminate all obligations of the parties under this Agreement and the Noncompetition/Non-Relocation Agreement. In the event that the Team Owner does not provide such Due Diligence Termination Notice by or before the end of the Due Diligence Review Period, the Team Owner shall be deemed to waived all rights of termination set forth in this Section 17.1.2 and the Team Owner shall thereafter have no right to terminate this Agreement or the Noncompetition/Non-Relocation Agreement based on the Team Owner Due Diligence Review; provided however that such waiver of these termination rights shall be without prejudice to the Team Owner’s other termination rights provided for in this Agreement. 17.2 Conditions to Closing.. The Closing and Closing Date shall occur upon the satisfaction or waiver of the following conditions to the obligations of the parties: 17.2.1 Conditions to the Obligations of the Arena Manager. The Arena Manager’s obligation to consummate the transactions contemplated in this Agreement shall be subject to the following conditions precedent having been satisfied on and as of the Closing Date, to the reasonable satisfaction of Arena Manager or the waiver thereof by Arena Manager, which waiver shall be binding upon Arena Manager only to the extent made in writing and dated as of the Closing Date: (a) The City shall have duly and timely performed and fulfilled in all material respects its duties, obligations, promises, covenants and agreements hereunder with respect to the period between the Effective Date and the Closing. (b) The representations and warranties given by the City to the Arena Manager hereunder shall be true and correct in all material respects as of the Closing Date. 63
SUBSTANTIAL FINAL DRAFT 11/27/12 12:35 (c) No condition shall have changed or event shall have occurred which can reasonably be expected to have a Material Adverse Effect on the Arena or the operating, maintenance or other expenses or obligations relating to the operation of the Arena. “Material Adverse Effect” means an event, change or occurrence that individually, or together with any other event, change or occurrence, has a material adverse impact on the financial position, business or results of operations of such business; provided, however, that the term “Material Adverse Effect” shall not include (i) changes in the overall industry or markets in which the business operates, (ii) changes in GAAP; (iii) actions or omissions of such business taken with the prior written consent of the other party to this Agreement, (iv) any change relating to the economy or securities markets in general, (v) the effect of any change in any applicable law or GAAP, or (vi) any change, effect, event, occurrence, state of facts or development resulting from any action required to be taken or performed by the parties hereto after execution of this Agreement. (d) Arena Manager and Team Owner shall have (a) entered into the NHL Purchase Agreement on terms acceptable to them in their sole discretion for the acquisition of the Team and the Franchise and the assumption of such related agreements as shall be acceptable to them in their sole discretion, and (b) shall have secured financing on terms acceptable to them in their sole discretion sufficient to consummate the transactions set forth under the NHL Purchase Agreement, this Agreement, to pay all related expenses, and to operate the Arena and the Team post-Closing (collectively, the “NHL Purchase and Financing Condition”). (e) All conditions to the consummation of the transactions contemplated under the NHL Purchase and Financing Condition shall have been satisfied or waived. (f) City and the Team Owner. The Related Agreements shall have been executed and delivered by the 17.2.2 Conditions to the Obligations of the Team Owner. The Team Owner’s obligation to consummate the transactions contemplated in this Agreement shall be subject to the following conditions precedent having been satisfied on and as of the Closing Date, to the reasonable satisfaction of Team Owner or the waiver thereof by Team Owner, which waiver shall be binding upon Team Owner only to the extent made in writing and dated as of the Closing Date: (a) The City shall have duly and timely performed and fulfilled in all material respects its duties, obligations, promises, covenants and agreements hereunder with respect to the period between the Effective Date and the Closing. (b) The representations and warranties given by the City to the Team Owner hereunder shall be true and correct in all material respects as of the Closing Date. (c) No condition shall have changed or event shall have occurred which can reasonably be expected to have a Material Adverse Effect on the Arena or the operating, maintenance or other expenses or obligations relating to the operation of the Arena. (d) The NHL Purchase and Financing Condition. (e) All conditions to the consummation of the transactions contemplated under the NHL Purchase and Financing Condition shall have been satisfied or waived. (f) City and the Arena Manager. The Related Agreements shall have been executed and delivered by the 64
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arena lease and management agreement city of glendale, arizona ...

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