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Exhibit 10.16
SECOND AMENDMENT AND CONFIRMATION OF TRANSFER AGREEMENT
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This SECOND AMENDMENT AND CONFIRMATION OF TRANSFER
AGREEMENT is dated as of April 17, 1998, by and between Cleveland Indians
Baseball Company, Limited Partnership, an Ohio limited partnership (the
"Transferor"), and Indians Club Trust, a Delaware business trust (the
"Transferee"), and amends and confirms that certain Transfer Agreement dated as
of May 22, 1992 between the Transferor and the Transferee (as amended by
Amendment No. 1 thereto dated as of December 20, 1993, as further amended on
June 28, 1996, and as further amended from time to time, the "Transfer
Agreement"). Capitalized terms used herein and not otherwise defined shall have
the same meanings herein as in Annex A referred to below.
W I T N E S S E T H:
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WHEREAS, by execution of the Transfer Agreement and the Assignment
dated the date thereof (the "Original Assignment"), the Transferor has
bargained, sold, transferred, assigned, set over and otherwise conveyed to the
Transferee the Rights and Revenues; and
WHEREAS, concurrently with the execution of the Transfer Agreement and
the Original Assignment, the Transferee incurred certain indebtedness for
borrowed money (the "Existing Indebtedness") and, in connection therewith,
granted certain liens on the Rights and Revenues as collateral security for such
Existing Indebtedness; and
WHEREAS, as of the date hereof, the Transferee and certain other
parties thereto are entering into the Club Trust Credit Agreement and the MLB
Credit Agreement pursuant to which the Lenders will make certain loans for the
benefit of the Transferee (collectively, the "MLB Credit Agreement Loans"),
certain proceeds of which MLB Credit Agreement Loans will be used by the
Transferee to refinance the Existing Indebtedness; and
WHEREAS, the Transferee and the MLB Trust have entered into the MLB
Pledge and Security Agreement dated the date hereof pursuant to which, among
other things, the Transferee has granted to the Administrative Agent for the
benefit of the Lenders and the Liquidity Banks a lien on the Rights and
Revenues, as such terms are defined in Annex A attached to the MLB Credit
Agreement (such Annex A attached to the MLB Credit Agreement being referred to
herein as the "Annex A"), as collateral security for the MLB Credit Agreement
Loans; and
WHEREAS, it is a condition precedent to the obligations of the Lenders
to enter into the Club Trust Credit Agreement and the MLB Credit Agreement, and
to make the MLB Credit Agreement Loans for the benefit of the Transferee
pursuant thereto, that the Transferor execute this Second Amendment and
Confirmation of Transfer Agreement and the form of Confirmatory Assignment
attached hereto as Exhibit A, and deliver certain other documents in the forms
attached hereto;
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NOW THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. ACKNOWLEDGMENT OF MLB CREDIT AGREEMENT AND MLB PLEDGE AND SECURITY
AGREEMENT; ASSIGNMENT. The Transferor acknowledges that, as of the date hereof,
the Transferee, the Lenders and the other parties thereto have entered into the
MLB Credit Agreement and MLB Pledge and Security Agreement. The Transferor
acknowledges that the Lenders have been induced to enter into said Agreements
by, among other things, (i) the representations, warranties and covenants of the
Transferor set forth in the Transfer Agreement and in this Second Amendment and
Confirmation thereof and (ii) the liens on the Rights and Revenues (as such
terms are defined in Annex A) granted to the Administrative Agent for the
benefit of the Lenders and the Liquidity Banks by the Transferee pursuant to the
MLB Pledge and Security Agreement. The Transferor has reviewed Annex A to the
MLB Credit Agreement, and is familiar with the definitional provisions contained
therein. It is the intention of the Transferor and the Transferee that all
Rights and Revenues (as such terms are defined in Annex A) were bargained, sold,
transferred, assigned, set over and otherwise conveyed from the Transferor to
the Transferee pursuant to the Transfer Agreement. Accordingly, by way of
confirming such transfer and transferring any assets constituting Rights and
Revenues (as defined in Annex A) which were not transferred pursuant to the
Transfer Agreement and the Original Assignment, the Transferor and the
Transferee will execute, at or before the Closing, a Confirmatory Assignment in
the form of Exhibit A hereto.
2. CONFIRMATION OF REPRESENTATIONS AND WARRANTIES OF TRANSFEREE AND
TRANSFEROR. The Transferee confirms that the representations and warranties set
forth in Section 3.01 of the Transfer Agreement are true and correct in all
material respects as of the date hereof. The Transferor confirms that the
representations and warranties set forth in Section 3.02 of the Transfer
Agreement and the information contained in Schedule 3.02(a)(x) as amended on the
date hereof is true and correct in all material respects as of the date hereof
except for the representations and warranties in Sections 3.02(b)(iv), (v), (vi)
and (vii) which were true and correct in all material respects as of May 20,
1992.
3. VOTING. The Transferor acknowledges and agrees that the MLB Trust,
the Administrative Agent and the Lenders are entering into the MLB Credit
Agreement and the MLB Pledge and Security Agreement in reliance upon, among
other things, the covenants of the Transferor set forth herein and in the
Transfer Agreement including, without limitation, the provisions of Section 5.05
of the Transfer Agreement.
4. EFFECTIVENESS. This Second Amendment and Confirmation of Transfer
Agreement shall become effective upon satisfaction of the following conditions:
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(a) The Transferee and the Administrative Agent shall have received the
following documents (each in form and substance satisfactory to the
Administrative Agent in it its sole discretion):
(i) An executed copy of this Second Amendment and Confirmation
of Transfer Agreement;
(ii) Executed Uniform Commercial Code financing statements
filed or to be filed in each jurisdiction determined by the
Administrative Agent, executed by (x) any party holding a lien on the
Rights and/or Revenues and (y) by the Transferor (or, as necessary, the
Commissioner), as seller and debtor, and naming the Transferee, as
purchaser and secured party, meeting the requirements of the laws of
each such jurisdiction, and as is necessary to maintain the
Transferee's perfected ownership status of the Rights and Revenues; and
(iii) Such other documents as Transferee or the Administrative
Agent may reasonably request.
5. TRANSACTION DOCUMENT. This Second Amendment and Confirmation and any
other document and certificate delivered in connection herewith shall be a
Transaction Document for all purposes.
6. NOTICES. All notice hereunder shall be given in accordance with the
provisions of Section 6.05 of the Transfer Agreement as amended hereby.
7. APPLICABLE LAW. THIS SECOND AMENDMENT AND CONFIRMATION OF TRANSFER
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REFERENCE TO ITS CHOICE OF LAW PROVISIONS.
8. CONFIRMATION; NO NOVATION. Except as expressly set forth herein,
this Second Amendment and Confirmation of Transfer Agreement shall not by
implication or otherwise limit, impair, constitute a waiver of, or otherwise
affect the rights and remedies of either party under the Transfer Agreement, nor
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Transfer Agreement, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. This Second Amendment and Confirmation of Transfer Agreement shall
apply and be effective only with respect to the provisions of the Transfer
Agreement specifically referred to herein.
9. COUNTERPARTS. This Second Amendment and Confirmation of Transfer
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute but
one contract.
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10. HEADINGS. Section headings used herein are for convenience of
reference only, are not part of this Second Amendment and Confirmation of
Transfer Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Second Amendment and Confirmation of
Transfer Agreement.
[Remainder of This Page Intentionally Left Blank and Signature Pages Follow]
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SIGNATURE PAGE FOR SECOND AMENDMENT AND CONFIRMATION OF TRANSFER AGREEMENT
CLEVELAND INDIANS
EXECUTED as a sealed instrument as of the date first above written.
TRANSFEROR:
CLEVELAND INDIANS BASEBALL
COMPANY, LIMITED PARTNERSHIP
By: Cleveland Indians Baseball
Corporation, its general partner
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Chairman, Chief Executive Officer and
President
Acknowledged and Agreed:
TRANSFEREE:
INDIANS CLUB TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Club Trustee
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Assistant Vice President
FLEET NATIONAL BANK, as Administrative Agent
By: /s/ Xxxxxxx X. XxXxxxxxx
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Xxxxxxx X. XxXxxxxxx
Executive Vice President
OFFICE OF THE COMMISSIONER OF BASEBALL,
on its own behalf and as Agent for the
Transferor under the Central Fund Agreement
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Chief Financial Officer
