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

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SUBSTANTIAL FINAL DRAFT 11/27/12 12:35 17.2.3 Conditions to the Obligations of the City. The City’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 the City or the waiver thereof by the City, which waiver shall be binding upon the City only to the extent made in writing and dated as of the Closing Date: (a) The Arena Manager and the Team Owner 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 Arena Manager and the Team Owner to the City hereunder shall be true and correct in all material respects as of the Closing Date. (c) The NHL Purchase and Financing Condition. (d) All conditions to the consummation of the transactions contemplated under the NHL Purchase and Financing Condition shall have been satisfied or waived. (e) The Related Agreements shall have been executed and delivered by the Arena Manager and the Team Owner. (f) The Closing Date shall have occurred on or before [_____________], 2012January 31, 2013 (the “Outside Closing Date”), unless extended by the City. 18CHALLENGES.. CHALLENGES. 18.1 The parties shall, in good faith contest any challenge to the validity, authorization, and enforceability of this Agreement (each, a “Challenge”). 18.2 If the Challenge occurs on or after the Effective Date, each party shall bear the costs and expenses of contesting the Challenge incurred by that party. 18.3 Each of the parties shall take all ministerial actions and proceedings necessary or appropriate to remedy any apparent invalidity of, lack or defect in authorization of, or illegality of, or to cure any other defect of, this Agreement which has been asserted or threatened in any Challenge, provided that no party shall be obligated to forego, defer, or accept the forfeiture of any substantial economic benefit or legal right that is a part of the bargained-for consideration for the transactions contemplated by this Agreement. 18.4 Each of the parties shall promptly give notice to the other parties of any Challenge of which the party giving notice acquires knowledge. 19. REMEDIES.. 19.1 Team Owner Remedies.. 19.1.1 For City Default. Following a City Default, the Team Owner shall, in addition to all other remedies at law and in equity, have the right to seek compensatory damages, but not indirect damages or punitive damages (which are in any event prohibited against the City under Arizona law), arising out of such City Default. 65
SUBSTANTIAL FINAL DRAFT 11/27/12 12:35 (a) In additionfurtherance, and not in limitation, of the foregoing, the Team Owner shall have the right to (i) seek an award or order requiring specific performance by the City of the City’s obligations under this Agreement. and (ii) solely with respect to a “City Default” which occurs under subclause (a) of the definition thereof in this Agreement, terminate this Agreement, upon 90 days’ written notice to the City during which time the City shall have the right to cure. (b) The Team Owner hereby waives, with respect to any City Default, any claim or right to indirect damages or punitive damages (which may not be awarded in any event) and acknowledges that the other parties are relying on such waiver in entering into this Agreement. 19.1.2 For Arena Manager Default. Following an Arena Manager Default, the Team Owner shall, in addition to all other remedies at law and in equity, have the right to seek compensatory damages, but not indirect damages or punitive damages, arising out of such Arena Manager Default. (a) In additionIn furtherance, and not in limitation, of the foregoing, the Team Owner shall have the right to seek an award or order requiring specific performance by the Arena Manager of the Arena Manager’s obligations under this Agreement. (b) The Team Owner hereby waives, with respect to any Arena Manager Default any right to terminate this Agreement (or any other agreement among the parties) or the rights of the Arena Manager under this Agreement (or under any other agreement among the parties), and acknowledges that the other parties are relying on such waiver in entering into this Agreement. (c) The Team Owner further acknowledges that the Team Owner may seek damages from the Arena Manager only from the Arena Manager’s own funds and shall not have any right to recover damages from the Arena Manager from the City or out of Arena Accounts. (d) The Team Owner hereby waives, with respect to any Arena Manager Default, any claim or right to indirect damages or punitive damages and acknowledges that the other parties are relying on such waiver in entering into this Agreement. 19.2 Arena Manager Remedies.. 19.2.1 For Team Owner Default. Following a Team Owner Default, the Arena Manager shall, in addition to all other remedies at law and in equity, have the right to seek compensatory damages, but not indirect damages or punitive damages, arising out of the Team Owner Default by the Team Owner. (a) In additionfurtherance, and not in limitation, of the foregoing, the Arena Manager shallManagershall have the right to (i) seek an award or order requiring specific performance by the Team OwnerCity of the Team Owner’sCity’s obligations under this Agreement. and (ii) solely with respect to a “City Default” which occurs under subclause (a) of the definition thereof in this Agreement, terminate this Agreement, upon 90 days’ written notice to the City during which time the City shall have the right to cure. (b) The Arena Manager hereby waives, with respect to any Team Owner Default, any right to terminate this Agreement (or any other agreement among the parties) or the rights of the Team Owner under this Agreement (or under any other agreement among the parties), and acknowledges that the other parties are relying on such waiver in entering into this Agreement. 66
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