Exhibit 10.1(a)
Dated as of November 5, 2003
TERMINATION AGREEMENT
by and between
OGDEN FACILITY MANAGEMENT CORPORATION OF ANAHEIM
(as the Manager),
COVANTA ENERGY CORPORATION
and
THE CITY OF ANAHEIM, CALIFORNIA
Cleary, Gottlieb, Steen & Hamilton
1 Liberty Plaza
New York, NY 10006
TABLE OF CONTENTS
Page
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions.................................................. 6
Section 1.2 Certain Rules of Construction................................ 6
ARTICLE II
TERMINATION AND ASSIGNMENT OF CONTRACTS
Section 2.1 Terminations, Assignments and Transfers...................... 7
Section 2.2 COPS Letter of Credit Payment................................ 7
Section 2.3 Working Capital Adjustment................................... 7
Section 2.4 Contract Assumption and Rejection............................ 9
Section 2.5 Amounts Due Under Executory Contracts;
Cure Costs................................................... 9
Section 2.6 Assumed Liabilities.......................................... 9
Section 2.7 Excluded Liabilities......................................... 10
Section 2.8 No Expansion of Third Party Rights........................... 10
Section 2.9 Transfer Taxes............................................... 10
ARTICLE III
CONDITIONS TO CLOSING
Section 3.1 Conditions Precedent to Obligations of Covanta
Parties and the City......................................... 10
Section 3.2 Conditions Precedent to Obligations of the City.............. 11
Section 3.3 Conditions Precedent to Obligations of the
Covanta Parties.............................................. 12
ARTICLE IV
THE CLOSING
Section 4.1 Closing...................................................... 12
Section 4.2 Termination of Contracts At Closing.......................... 13
Section 4.3 Other Closing Actions........................................ 13
Section 4.4 Deliveries by the Manager at the Closing..................... 13
Section 4.5 Deliveries by the City at the Closing........................ 13
Section 4.6 Payment to CSFB.............................................. 13
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE MANAGER
Section 5.1 Organization, Standing and Authority......................... 14
Section 5.2 No Conflict; Required Filings and Consents................... 14
Section 5.3 Title To Assets.............................................. 14
Section 5.4 Assigned Contracts........................................... 14
Section 5.5 Licenses and Permits: Compliance with Laws.................. 15
Section 5.6 No Other Assets.............................................. 15
Section 5.7 Pending Actions.............................................. 15
Section 5.8 Environmental Compliance..................................... 15
Section 5.9 Information True and Complete................................ 15
Section 5.10 Employee Matters............................................. 15
Section 5.11 Compliance with Law.......................................... 15
Section 5.12 Brokers...................................................... 15
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE CITY
Section 6.1 Organization................................................. 16
Section 6.2 Authority.................................................... 16
Section 6.3 Consents and Approvals....................................... 16
Section 6.4 No Violations................................................ 16
Section 6.5 Brokers...................................................... 16
ARTICLE VII
COVENANTS
Section 7.1 Bankruptcy Court Approval of Agreement....................... 17
Section 7.2 Conduct of Business by the Manager Pending the Closing....... 18
Section 7.3 Access and Information....................................... 18
Section 7.4 Notification................................................. 19
Section 7.5 No Inconsistent Action....................................... 19
Section 7.6 Satisfaction of Conditions................................... 19
Section 7.7 Filings...................................................... 19
Section 7.8 Additional Matters and Further Assurances.................... 19
Section 7.9 Employment Matters........................................... 19
Section 7.10 Maintenance of Books and Records............................. 20
Section 7.11 Survival of Representations and Warranties................... 20
Section 7.12 Disclaimer................................................... 20
ARTICLE VIII
TERMINATION
Section 8.1 Termination.................................................. 21
Section 8.2 Procedure and Effect of Termination.......................... 22
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Notices...................................................... 22
Section 9.2 Publicity.................................................... 23
Section 9.3 Descriptive Headings......................................... 23
Section 9.4 Entire Agreement; Assignment................................. 23
Section 9.5 Governing Law................................................ 24
Section 9.6 Expenses..................................................... 24
Section 9.7 Amendment.................................................... 24
Section 9.8 Waiver....................................................... 24
Section 9.9 Counterparts; Effectiveness.................................. 24
Section 9.10 Severability; Validity; Parties in Interest.................. 24
Section 9.11 Representation............................................... 24
Page 3
TABLE OF CONTENTS
Annex A Definitions A-1
Annex B Form of Mutual Release B-1
Schedule 1A Transferred Assets S-1A
Schedule 2.1 Per se Rejected Contracts S-2.1
Schedule 2.3(a)-1 Form of Pre-Closing Statement S-2.3(a)-1
Schedule 2.3(a)-2 Reference Balance Sheet S-2.3(a)-2
Schedule 2.3(c) Form of Closing Statement S-2.3(c)
Schedule 2.4(a) Manager's Executory Contracts
Eligible for Assignment S-2.4(a)
Schedule 2.4(c) Post-petition Ordinary Course
Executory Contracts S-2.4(c)
Schedule 2.7 Excluded Liabilities S-2.7
Schedule 3.1(b) Pre-Closing Regulatory Consents
and Filings S-3.1(b)
Schedule 3.2(d) Leasehold Restructuring S-3.2(d)
Schedule 3.2(i) Agreements Requiring CSFB's
Release of the City S-3.2(i)
Schedule 3.3(b) Agreements Requiring the Leasehold
Participants' Release of Manager S-3.3(b)
Schedule 5.4 Consents to Transfer of Designated
Contracts S-5.4
Schedule 7.9(c) Terminated Employees S-7.9(c)
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TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT, dated as of November 5, 2003 (the
"Agreement"), is made by and between Covanta Energy Corporation, a Delaware
corporation ("Covanta"), Ogden Facility Management Corporation of Anaheim, a
California corporation ("OFM" or the "Manager" and together with Covanta, the
"Covanta Parties"), and the City of Anaheim, a municipality incorporated in the
State of California (the "City").
RECITALS
WHEREAS on April 1, 2002, the Covanta Parties filed in the United
States Bankruptcy Court for the Southern District of New York (the "Bankruptcy
Court") voluntary petitions for reorganization under chapter 11 of the
Bankruptcy Code and the Covanta Parties currently continue to operate their
businesses as debtors-in-possession pursuant to sections 1107 and 1108 of the
Bankruptcy Code;
WHEREAS OFM manages the arena known as the Arrowhead Pond of Anaheim
located at 2695 East Katella Avenue in Anaheim, California (the "Facility")
pursuant to a 30-year exclusive Second Amended and Restated Arena Management
Agreement dated December 1, 1993 between OFM and the City, as amended or
supplemented from time to time (the "Management Agreement");
WHEREAS pursuant to the Management Agreement, OFM has the obligation to
provide unlimited working capital to the Facility to assure that, in the event
of cash shortfalls, operating expenses and debt service (including payments of
both interest and principal on the Certificates of Participation, as defined
herein) are timely paid;
WHEREAS Covanta has provided a guarantee of OFM's obligations under the
Management Agreement, including the obligation to provide unlimited working
capital;
WHEREAS the Facility is beneficially owned by the City;
WHEREAS the Facility is the home arena of the Mighty Ducks hockey team
of the National Hockey League pursuant to the Mighty Ducks Agreement, as defined
herein;
WHEREAS the Parties had entered into a Facility financing agreement
pursuant to which Credit Suisse First Boston acting by and through its New York
branch ("CSFB") provided the COPS Letter of Credit in connection with the
issuance as of December 1, 1993 of Certificates of Participation in that certain
Lease Agreement between the City and the Anaheim Public Improvement Corporation,
a California non-profit corporation (such financing transaction, hereinafter the
"COPS Transaction"), and the Parties desire to fulfill and/or resolve any and
all obligations remaining from the COPS Transaction;
WHEREAS as part of the COPS Transaction, the City, OFM and CSFB had
entered into a bank reimbursement agreement with respect to the COPS Letter of
Credit pursuant to which OFM has an obligation to reimburse CSFB in the event of
a draw upon the COPS Letter of Credit, and which obligation is a secured
obligation of Covanta under the Security Agreement dated as of March 14, 2001
among Covanta, certain of its subsidiaries, and Bank of America;
WHEREAS the Parties had entered into a leasehold transaction with
respect to the Facility as of January 6, 1999 (the "Leasehold Transaction")
along with certain other parties (the "Leasehold Participants"), and the Parties
desire to stabilize the Leasehold Transaction and arrange for the release of the
Covanta Parties from all liabilities and obligations with respect to the
Leasehold Transaction;
Page 5
WHEREAS the City and the Manager desire to terminate the Management
Agreement and the Manager desires to reject certain other executory contracts
pertaining to the Facility;
WHEREAS Covanta desires to terminate its obligations under its
guarantee of OFM's obligations under the Management Agreement, including the
obligation to provide unlimited working capital to the Facility;
WHEREAS the Manager desires to assume and assign to the City or its
designee certain executory contracts referred to herein as the Designated
Contracts (including the Mighty Ducks Agreement) together with certain
obligations and liabilities relating thereto, pursuant to the terms and
conditions of this Agreement;
WHEREAS the Manager desires to abandon and transfer to the City certain
tangible and intangible assets as defined in Schedule 1A (the "Transferred
Assets");
WHEREAS the Rejected Contracts will be rejected and the Designated
Contracts will be assumed and assigned pursuant to the terms of this Agreement
and the Approval Order, as defined herein;
WHEREAS the City is considering appointing a new manager for the
Facility; and
WHEREAS, the City has authorized execution of this Agreement by City
resolution;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, and agreements set forth herein, the
Parties hereto agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions. As used in this Agreement, unless the context
otherwise requires, capitalized terms used in this Agreement shall have the
meanings set forth in Annex A hereto.
Section 1.2 Certain Rules of Construction.
(a) Any term defined herein in the singular form shall have a
comparable meaning when used in the plural form, and vice versa.
(b) When used herein, the words "hereof", "herein" and "hereunder" and
words of similar import shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. References to the Recitals, Articles,
Sections, Schedules or Annexes shall refer respectively to the recitals,
articles, sections, schedules or annexes of this Agreement, unless otherwise
expressly provided.
(c) When used herein, the terms "include", "includes" and "including"
are not limiting.
(d) Unless the context requires otherwise, derivative forms of any term
defined herein shall have a comparable meaning to that of such term.
(e) When a Party's consent is required hereunder, such Party's consent
may be granted or withheld in such Party's sole discretion, unless otherwise
specified.
Page 6
(f) Any reference to an agreement hereunder shall refer to that
agreement as it may be amended or supplemented from time to time.
ARTICLE II
TERMINATION AND
ASSIGNMENT OF CONTRACTS
Section 2.1 Terminations, Assignments and Transfers.
(a) Subject to the terms and conditions herein set forth, at the
Closing, (i) the Parties shall by mutual agreement terminate the Management
Agreement and, except as provided in Section 2.3 herein, irrevocably,
definitively and unconditionally release each other from any and all obligations
or liabilities under or in connection therewith, in the form of the mutual
general release attached as Annex B (the "Mutual Release"), and (ii) the Manager
shall reject the Management Agreement. As soon as practicable after the Closing,
the Manager shall also reject all its executory contracts that have not become
Assigned Contracts (the "Rejected Contracts"), including all per se Rejected
Contracts, as listed on Schedule 2.1.
(b) Subject to the terms and conditions herein set forth, at the
Closing, the Manager shall assume, assign and deliver to the City (or a City
Designee, as the case may be), and the City (or such City Designee) shall accept
from the Manager, all of the Manager's rights in and obligations under all of
the Assigned Contracts.
(c) Subject to the terms and conditions herein set forth, at the
Closing, the Manager shall transfer, convey, and deliver to the City (or a City
Designee, as the case may be), and the City (or such City Designee) shall accept
from the Manager, all of the Manager's right and interest in, to and under all
of the Transferred Assets, wherever located, whether tangible or intangible, as
the same shall exist on the Closing Date, free and clear of all Liens except
Permitted Liens.
Section 2.2 COPS Letter of Credit Payment. In consideration of the
releases contemplated in Section 3.1(e), the termination by mutual agreement of
the Management Agreement, the rejection of the Rejected Contracts, the
assignment of the Designated Contracts, the transfer of the Transferred Assets
and the Covanta Parties' performance of their obligations under this Agreement,
at the Closing, the City shall make a payment (the "Reimbursement Payment") to
CSFB, as partial reimbursement for the draw on the COPS Letter of Credit
referred to in Sections 3.1(e) and 4.6 herein, pursuant to the City's rights and
obligations under Article III of the Bank Agreement, equal to (x) the
Reimbursement Amount minus (y) an amount of $1,000,000 (the "Escrow") which
shall be deposited with an escrow agent selected by the Parties' mutual
agreement, and which shall be reserved exclusively for the true-up of the
Reimbursement Amount pursuant to Section 2.3 herein.
Section 2.3 Working Capital Adjustment
(a) At least 10 Business Days prior to the Closing, the Manager shall
prepare and deliver to the City an estimated statement of working capital for
the Facility as of the opening of business on the scheduled Closing Date in the
format of Schedule 2.3(a)-1 hereto (the "Pre-Closing Statement"). The
Pre-Closing Statement shall be prepared by the Manager in good faith on a basis
consistent in all material respects with the methods, principles, practices and
policies set forth in the Management Agreement and employed in the preparation
and presentation of the reference financial statements for the Facility as of
February 28, 2003, attached hereto as Schedule 2.3(a)-2 (the "Reference Balance
Sheet") (without regard to consummation of the transactions contemplated by this
Agreement or the Chapter 11 Cases).
Page 7
(b) The Reimbursement Amount shall, immediately prior to the Closing,
be (A) increased by 100% of the amount, if any, by which the Net Working
Capital, as calculated based on the Pre-Closing Statement, is greater than $0.00
(zero dollars) or (B) decreased by 100% of the amount, if any, by which the Net
Working Capital, as calculated based on the Pre-Closing Statement, is less than
$0.00 (zero dollars).
(c) Within 45 Business Days after the Closing, the City shall cause the
staff at the Facility to prepare and deliver to the Parties a statement of Net
Working Capital as of the opening of business on the Closing Date in the format
of Schedule 2.3(c) hereto (the "Closing Statement"). The Closing Statement shall
be prepared by the Facility staff in good faith on a basis consistent in all
material respects with the methods, principles, practices and policies employed
in the preparation and presentation of the Reference Balance Sheet (without
regard to consummation of the transactions contemplated by this Agreement or the
Chapter 11 Cases). The City shall cause the Parties to be given full access,
during regular business hours, to the Facility staff and Facility records to
monitor the preparation of the Closing Statement, and the City shall cause the
Facility staff as much as reasonably practicable to keep the Parties appraised
of its progress and findings with respect to the Closing Statement and its
preparation.
(d) After receipt of the Closing Statement, the Parties shall have 15
Business Days to review it together with the work papers used in the preparation
thereof. Unless a Party delivers written notice to the other Parties on or prior
to the 15th Business Day after the notifying Party's receipt of the Closing
Statement stating that it has objections thereto, the Parties shall be deemed to
have accepted and agreed to the Closing Statement. The Parties shall not object
to any method, principle, practice or policy employed in the preparation of the
Closing Statement if such method, principle, practice or policy is consistent in
all material respects with that employed in the preparation and presentation of
the Reference Balance Sheet. If, however, a Party notifies the other Parties of
objections to the Closing Statement on or prior to the 15th Business Day after
the notifying Party's receipt of the Closing Statement, the Parties shall in
good faith attempt to resolve, within 10 Business Days (or such longer period as
the Parties may agree in writing) following such notice (the "Resolution
Period"), their differences with respect to such objections and any resolution
by them as to any disputed amounts shall be final, binding and conclusive. In so
doing, the Parties (sharing any fees and expenses equally) may engage a mutually
agreed-upon independent accounting firm experienced in audit projects to assist
such resolution by acting as a non-binding mediator.
(e) Amounts relating to any working capital and other accounts set
forth in the Closing Statement remaining in dispute at the conclusion of the
Resolution Period shall be promptly submitted to the Independent Auditor for
resolution. The Independent Auditor shall render a decision within 30 calendar
days from referral of the dispute by either Party. The decision of the
Independent Auditor with respect to the Closing Statement and the determination
of the Net Working Capital shall be final and binding upon the Parties. The
Independent Auditor shall be retained at the Parties' equally shared expense.
(f) Once the Closing Statement is finalized in accordance with this
Section 2.3 (as so finalized, the "Final Closing Statement"), the Reimbursement
Amount shall be trued-up as set forth in this Section 2.3(f) to give effect to
the Net Working Capital as of the opening of business on the Closing Date. If
the Reimbursement Amount as adjusted pursuant to this Section 2.3(f) is less
than the Reimbursement Amount as adjusted pursuant to Section 2.3(b), the City
shall be allowed to withdraw from the Escrow an amount of cash equal to the
difference obtained by subtracting the Reimbursement Amount as adjusted pursuant
to this Section 2.3(f) from the Reimbursement Amount as adjusted pursuant to
Section 2.3(b), and the balance of the Escrow, if any, shall be paid to CSFB. If
the Reimbursement Amount as adjusted pursuant to this Section 2.3(f) is greater
than the Reimbursement Amount as adjusted pursuant to Section 2.3(b), the City
Page 8
shall release the Escrow to CSFB, and promptly pay to CSFB an amount of cash
equal to the difference obtained by subtracting the Reimbursement Amount as
adjusted pursuant to Section 2.3(b) from the Reimbursement Amount as adjusted
pursuant to this Section 2.3(f).
(g) During the preparation of the Pre-Closing Statement and Closing
Statement and the period of any review or dispute within the contemplation of
this Section 2.3, the Parties shall (i) provide each other Party upon reasonable
advance request with full access for review and copying by the other Party, its
agents and representatives at all reasonable times, and in a manner so as not to
interfere unreasonably with the normal business operations of each Party, to all
relevant books, records, work papers, information and employees, and (ii)
cooperate fully with each other Party as necessary for the preparation,
calculation and reviews of the Pre-Closing Statement and Closing Statement or
for the contemplated resolution of any dispute between the Parties relating
thereto.
Section 2.4 Contract Assumption and Rejection.
(a) Schedule 2.4(a) is a list of the pre-petition executory contracts
related to the Facility, other than the Management Agreement, to which the
Manager is a party and that the City may choose to assume (the "Schedule 2.4(a)
Contracts"). The Manager shall make available to the City a copy of each of the
Schedule 2.4(a) Contracts no later than five Business Days from the date of this
Agreement. The City shall elect, as soon as practicable and in any event no
later than three Business Days prior to the date of the Approval Hearing, which
of the Schedule 2.4(a) Contracts the City wishes the Manager to assume and
assign to the City (or a City Designee) effective as of the Closing (the
"Designated Contracts"). It is understood that the Mighty Ducks Agreement shall
in any event be a Designated Contract and, subject to Bankruptcy Court approval,
be assumed and assigned to the City (or a City Designee) at Closing. All of the
Schedule 2.4(a) Contracts that are not Designated Contracts following the entry
of the Final Order shall be rejected as soon as practicable thereafter.
(b) If after the date hereof, but prior to the Closing, any Party
becomes aware of any pre-petition executory contract related to the management
of the Facility not previously disclosed to the City during the due diligence
process, or if the Manager enters into any additional executory contract (each,
an "Undisclosed Contract"), the discovering Party shall immediately notify the
other Parties of such Undisclosed Contract, and the City may elect, no later
than five Business Days following such notification, to assume such Undisclosed
Contract, subject to Bankruptcy Court authorization. Any Undisclosed Contract
that the City elects to assume shall be a Designated Contract. Notwithstanding
the foregoing, if any Undisclosed Contract is entered into after the date of the
Approval Order and such Undisclosed Contract contains language allowing the
Manager to assign the contract to the City, then such contract may be assumed
and assigned without the entry of a Bankruptcy Court order.
(c) All post-petition executory contracts related to the Facility that
were entered into by the Manager in the ordinary course of business consistent
with past practice and in accordance with the Management Agreement shall be
Designated Contracts and shall at the Closing be assigned to, and assumed by,
the City (or a City Designee). Schedule 2.4(c) contains a list of such
post-petition executory contracts through the date hereof that will be assumed.
Section 2.5 Amounts Due Under Executory Contracts; Cure Costs. The City
shall be obligated to pay all liabilities under the Assigned Contracts as of the
Closing Date and thereafter, including all cure and reinstatement costs and
expenses pursuant to 11 U.S.C. ss.365 or otherwise, arising from the assignment,
assumption, or both, of the Assigned Contracts to the City (or a City Designee,
as the case may be) as set forth on Schedule 2.4(a) (the "Cure Costs").
Section 2.6 Assumed Liabilities. Subject to the terms and conditions
Page 9
set forth in this Agreement, at the Closing, the City shall assume from the
Covanta Parties and thereafter pay, perform, or discharge, or cause a City
Designee to pay, perform, or discharge, in accordance with their terms and hold
the Covanta Parties harmless in respect of the following: (i) all Current
Liabilities as of the Closing Date; (ii) all payables, obligations and
liabilities with respect to, arising out of, or associated with the Assigned
Contracts arising on or after the Closing Date; (iii) all payables, obligations
and liabilities associated with the Transferred Assets, arising on or after the
Closing Date; (iv) liabilities and obligations pursuant to Section 7.9(b)
hereof; and (v) any Cure Costs. The liabilities to be assumed pursuant to the
preceding sentence shall be referred to herein as the "Assumed Liabilities".
Section 2.7 Excluded Liabilities. Notwithstanding anything contained in
this Agreement to the contrary, except for the Assumed Liabilities, the City
shall not assume or be under an obligation to pay, discharge or perform, and
shall not be deemed to have assumed, or to have agreed to pay, discharge or
perform, as a result of the consummation of the transactions contemplated
herein, and shall not be liable for, any liability, claim, commitment, or
obligation of the Covanta Parties, disclosed or undisclosed, in particular,
without limitation, the liabilities as listed on Schedule 2.7 (the "Excluded
Liabilities").
Section 2.8 No Expansion of Third Party Rights. The assumption by the
City or a City Designee of the Assumed Liabilities shall in no way expand the
rights or remedies of any third party against the City, such City Designee or
the Manager as compared to the rights and remedies which such third party would
have had against the Manager absent the Chapter 11 Cases, had the City or the
City Designee not assumed such liabilities. Without limiting the generality of
the preceding sentence, the assumption by the City or the City Designee of the
Assumed Liabilities shall not create any third-party beneficiary rights other
than with respect to the Person whose debt is assumed.
Section 2.9 Transfer Taxes. Any sales, use, transfer or recording taxes
with respect to personal property due as a result of the transactions provided
for herein shall be borne and paid by the City. The Parties will reasonably
cooperate to minimize any such taxes.
ARTICLE III
CONDITIONS TO CLOSING
Section 3.1 Conditions Precedent to Obligations of Covanta Parties and
the City. The respective obligations of each Party to effect the transactions
contemplated by this Agreement shall be subject to the satisfaction of the
following conditions:
(a) on or before December 22, 2003, the Approval Order, in form and
substance consistent with this Agreement, shall have been entered by the
Bankruptcy Court and such order shall not have been stayed, modified, reversed
or amended in any manner adverse to the City or the Covanta Parties, and shall
be final and unappealable;
(b) the material regulatory consents and filings set out at Schedule
3.1(b) shall have been obtained or made;
(c) no action, suit or proceeding (including any proceeding over which
the Bankruptcy Court has jurisdiction under 28 U.S.C. ss. 157(b) and (c)) shall
be pending by any Governmental Authority to enjoin, restrain, prohibit or obtain
substantial damages or significant equitable relief in respect of or related to
the transactions contemplated by this Agreement, or that would be reasonably
likely to prevent or make illegal the consummation of the transactions
contemplated by this Agreement;
Page 10
(d) there shall not be in effect any Law of any Governmental Authority
of competent jurisdiction restraining, enjoining or otherwise preventing
consummation of the transactions contemplated by this Agreement; and
(e) the COPS shall have been either repurchased in full, or repaid in
full, out of the proceeds from a draw on the COPS Letter of Credit and, subject
to receipt by CSFB of the Reimbursement Payment from the City, the Parties shall
have been released, by means of a written instrument in form and substance to
their reasonable satisfaction, of all of their respective obligations and
security interests granted to CSFB under the COPS Financing Documents, except
for CSFB's residual Reimbursement Claim against the Covanta Parties (giving
effect to the Reimbursement Amount), to be pursued in the Covanta Parties'
Chapter 11 cases. CSFB's release instrument shall confirm the credit of the
Reimbursement Amount against the Reimbursement Claim of CSFB against the Covanta
Parties.
Section 3.2 Conditions Precedent to Obligations of the City. The
obligation of the City to effect the transactions contemplated by this Agreement
shall be subject to the satisfaction or waiver at or prior to the Closing Date
of the following additional conditions:
(a) the representations and warranties of the Covanta Parties contained
in this Agreement qualified by materiality or Material Adverse Effect shall be
true and correct in all respects as of the Closing Date as if made on such date
(except for representations and warranties that relate to a specific date), and
all representations and warranties that are not so qualified shall be true and
correct with only such exceptions as, individually or in the aggregate, have not
had and would not reasonably be expected to have a Material Adverse Effect;
(b) the City shall have completed the New City Financing;
(c) from the date of this Agreement, no Leasehold Participant shall
have commenced any remedy under any of the Leasehold Documents due to any event
of default contained therein;
(d) the Leasehold Transaction shall have been restructured
substantially in accordance with Schedule 3.2(d), pursuant to documents in form
and substance reasonably satisfactory to City;
(e) the Manager shall have performed in all material respects the
covenants and obligations under this Agreement required to be performed by it at
or prior to the Closing Date, with only such exceptions as, individually or in
the aggregate, do not constitute and would not reasonably be expected to
constitute a Material Adverse Effect;
(f) the City Council shall have taken all actions to approve, as
necessary, the transactions contemplated herein and all related transactions,
including the assumption and assignment of the Designated Contracts, the
restructuring of the Leasehold Transaction and the issuance of the New City
Financing;
(g) since the signing date hereof, no Material Adverse Effect shall
have occurred or be reasonably expected to occur;
(h) the Facility shall have been operated by the Manager from the
period after the date of this Agreement until the Closing Date in a manner
consistent with the Management Agreement;
(i) CSFB shall have released the City and the Anaheim Public
Improvement Corporation from their obligations, and released its security
interests in the collateral pledged, under the COPS Financing Documents,
including, but not limited to, the documents listed in Schedule 3.2(i), in form
and substance to the City's reasonable satisfaction;
Page 11
(j) Bank of America shall have released the City from its obligations
under the interest rate swap agreement between Bank of America and the City,
dated January 12, 1999, as amended, in form and substance to the City's
reasonable satisfaction; and
(k) the Bank of New York Trust Company of California shall have
released the City, the Anaheim Public Improvement Corporation and the Covanta
Parties from their obligations, and released its security interests in the
collateral pledged, under the COPS Financing Documents, in form and substance to
the City's reasonable satisfaction.
Section 3.3 Conditions Precedent to Obligations of the Covanta Parties.
The obligation of the Covanta Parties to effect the transactions contemplated by
this Agreement shall be subject to the satisfaction or waiver at or prior to the
Closing Date of the following additional conditions:
(a) the representations and warranties of the City contained in this
Agreement qualified by materiality or Material Adverse Effect shall be true and
correct as of the Closing Date as if made on such date (except for
representations and warranties that relate to a specific date) and all
representations and warranties that are not so qualified shall be true and
correct with only such exceptions as, individually or in the aggregate, have not
had and would not reasonably be expected to have a Material Adverse Effect;
(b) the Leasehold Participants shall have released the Covanta Parties
from their obligations under the Leasehold Documents, including the documents
listed in Schedule 3.3(b), in form and substance to the Covanta Parties'
reasonable satisfaction;
(c) the Ogden Guaranty shall have been terminated, and the Covanta
Parties shall have been released from all obligations thereunder;
(d) the City shall have withdrawn all proofs of claim it has filed in
the Bankruptcy Court against the Covanta Parties in their Chapter 11 Cases;
(e) approval of the transactions contemplated in this Agreement by the
requisite DIP Lenders, as required by the DIP Financing;
(f) the Leasehold Letters of Credit shall have been returned to
Covanta, undrawn, for cancellation; and
(g) the City shall have performed in all material respects the
obligations under this Agreement required to be performed by the City at or
prior to the Closing Date.
ARTICLE IV
THE CLOSING
Section 4.1 Closing. The consummation of the transactions contemplated
by this Agreement (the "Closing") shall take place at the offices of the City
Manager of the City, or such other place at the Parties shall agree, at 10:00
a.m. California time, on the earlier of (i) the first Business Day after all the
conditions to the Closing set forth in Article 3 have been met or waived; (ii)
such other time, date, and place as shall be agreed upon by the Parties (the
date of the Closing being herein referred to as the "Closing Date") and (iii)
January 22, 2004. To the fullest extent practicable, the Closing shall occur
concurrently with the closing of the New City Financing unless otherwise agreed
by the City.
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Section 4.2 Termination of Contracts At Closing.
(a) At the Closing, the Management Agreement shall be deemed mutually
terminated by the Parties and shall be deemed rejected by the Manager. The City
and the Covanta Parties shall irrevocably, definitively and unconditionally
release each other from any and all obligations or liabilities under or in
connection therewith, and execute the Mutual Release.
(b) At the Closing, all other Rejected Contracts shall be deemed
rejected.
Section 4.3 Other Closing Actions.
(a) At the Closing, Covanta and the City (or a City Designee, as the
case may be) shall sign assumption and assignment agreements, substantially
satisfactory to the Parties, with respect to the Assigned Contracts, which shall
necessarily include the Mighty Ducks Agreement.
(b) At the Closing, all licenses, assignments or quitclaim deeds of
parking facilities and other transfer documents required to effectuate the
transaction described in this Agreement shall be executed and delivered.
(c) At the Closing, the Parties shall sign and deliver the Mutual
Release.
Section 4.4 Deliveries by the Manager at the Closing. At the Closing,
the Manager shall deliver to the City:
(a) a general bill of sale and assignment, in form and substance
reasonably satisfactory to the City, with respect to the Transferred Assets to
be conveyed by the Manager at the Closing and any other documents reasonably
requested by the City so as to convey to the City or the City Designee good
title, free and clear of all Liens (other than Permitted Liens), to all of the
Manager's rights, title and interest in and to the Transferred Assets to be
conveyed at the Closing;
(b) keys, security codes and pass cards to the Facility, and every lock
thereon in the Covanta Parties' possession;
(c) effective control over software programs and databases, operating
systems, licenses, codes and related programs and services in use at the
Facility immediately prior to the Closing in connection with Facility operations
(including, but not limited to, booking, calendaring, and accounting programs);
(d) all of the Manager's books and records, customer files and related
business records pertaining to the Facility and the Assigned Contracts,
including the originals of all Assigned Contracts, the originals of all permits
and warranties, and copies of all maintenance records and operating manuals in
the Covanta Parties' possession pertaining to the Facility and any personal
property included in the Assigned Contracts; and
(e) such other instruments of transfer as are necessary or required to
transfer the Assigned Contracts, and all other documents, certificates,
instruments or writings reasonably requested by the City in connection herewith,
including, in particular, the release documents referred to in Sections 3.2(i),
(j) and (k), and the documents described in Section 4.3.
Section 4.5 Deliveries by the City at the Closing. At the Closing, the
City shall deliver to the Covanta Parties such documents, instruments or
certificates as are required to be delivered to carry out the City's obligations
under this Agreement, or as the Covanta Parties or their counsel reasonably
request, including the documents described in Section 4.3.
Section 4.6 Payment to CSFB. At the Closing, the City shall make the
Reimbursement Payment to CSFB, in accordance with the reimbursement provisions
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of Article III of the Bank Agreement and as instructed by CSFB, and post the
Escrow. CSFB's Reimbursement Claim shall be reduced by an amount equal to the
Reimbursement Amount. The receipt of the Reimbursement Payment and the reduction
of the Reimbursement Claim shall be formally acknowledged in writing by CSFB to
the City and the Covanta Parties, respectively.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE MANAGER
The Manager makes the following representations and warranties to the
City:
Section 5.1 Organization, Standing and Authority. OFM is a corporation
duly organized, validly existing and in good standing under the Laws of its
jurisdiction of incorporation. Subject to compliance with applicable provisions
of the Bankruptcy Code, the Manager has all requisite corporate power and
authority to (i) carry on its business as it is now being conducted or presently
being proposed to be conducted, except where the failure to hold such corporate
authority or carry on its business would not constitute or be reasonably
expected to constitute a Material Adverse Effect and (ii) enter into the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by the Manager and the consummation by the Manager of the
transactions contemplated hereby have been duly authorized by all requisite
corporate actions. This Agreement has been duly and validly executed and
delivered by the Manager and (assuming this Agreement constitutes a valid and
binding obligation of the City) constitutes a valid and binding obligation of
the Manager in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium and other Laws affecting creditors'
rights generally from time to time in effect and to general equitable
principles.
Section 5.2 No Conflict; Required Filings and Consents. Assuming the
satisfaction of the conditions set forth in Article 3 and compliance with the
applicable requirements for consents, approvals, authorizations, permits or
filings referred to in this Section 5.2, no consent, approval, authorization or
permit of, or filing with or notification to, any Governmental Authority,
domestic or foreign, or of any other Person is required to be made or obtained
by the Manager in connection with the execution, delivery, and performance of
this Agreement and the consummation of the transactions contemplated hereby
except (i) approvals of the Bankruptcy Court, and (ii) where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications would neither (x) prevent or materially delay the
consummation by the Manager of the transactions contemplated by this Agreement
nor (y) individually or in the aggregate, constitute nor be reasonably expected
to constitute a Material Adverse Effect.
Section 5.3 Title To Assets. Upon entry and effectiveness of the Final
Order, the Manager (a) shall have the power and the right to sell, convey,
transfer, assign and deliver to the City the Designated Contracts and (b) on the
Closing Date shall sell, convey, transfer, assign and deliver the Designated
Contracts free and clear of all Liens, except for and subject to the Assumed
Liabilities and Permitted Liens.
Section 5.4 Assigned Contracts. To the Manager's knowledge, the
Assigned Contracts are valid and enforceable in accordance with their terms,
subject to applicable bankruptcy, reorganization, moratorium, and similar Laws
affecting creditor's rights and remedies generally and subject, as to
enforceability, to general principles of equity. To the Manager's knowledge,
each of such contracts are in full force and effect and, other than as
previously disclosed, no event has occurred which with or without the giving of
notice or lapse of time, or both, would constitute a default thereunder. Other
than in connection with the commencement of the Chapter 11 Cases, entry of the
Page 14
Final Order and as set forth on Schedule 5.4 hereto, none of such contracts
requires the consent of any party to its assignment in connection with the
transactions contemplated hereby, or to the extent that consent is required,
such consent has not been withheld by any party. True and complete copies or
descriptions (as to oral contracts) of all executory contracts of the Manager
known and available to the Manager have been delivered or made available, or
will be made available within five Business Days from the date of this
Agreement, to the City.
Section 5.5 Licenses and Permits: Compliance with Laws. To the
Manager's knowledge, the Manager has all licenses, permits and authorizations
necessary in order to operate and conduct its business involving the Facility,
the Designated Contracts and the Transferred Assets as presently conducted.
Section 5.6 No Other Assets. To the Manager's knowledge, other than the
Transferred Assets and the assets which the City has advised the Manager it does
not wish to acquire, no furniture, fixtures, equipment or other personal
property, tangible or intangible, are in use by the Manager in the day-to-day
operation of the Facility.
Section 5.7 Pending Actions. To the Manager's knowledge, there are no
actions or proceedings pending against the Manager that would, if adversely
determined, be likely to have a Material Adverse Effect with respect to the
Facility (including any notices of violation by the Occupational Safety and
Health Act or other applicable Law which have not been corrected as of the date
hereof).
Section 5.8 Environmental Compliance. To the Manager's knowledge, there
is not (and as of the Closing Date there will not be, except as otherwise
disclosed in writing by the Manager to the City and accepted by the City in
writing) any written notice or order by the County of Orange, the State of
California or the federal government of the United States finding or alleging
that a violation of Law exists with respect to the Facility relating to
pollution or to protection of the environment.
Section 5.9 Information True and Complete. All information, documents,
statements and instruments delivered by the Manager to the City pursuant to this
Agreement are, to the Manager's knowledge, true, complete, and accurate in all
material respects.
Section 5.10 Employee Matters. Pursuant to Section 7.9, all wages,
salary and other compensation, commissions, bonuses, vacation pay,
reimbursements, federal, state and local income and payroll tax withholdings
(including FICA and FUTA), premiums for health insurance, workers' compensation
insurance and other benefits, withholdings and contributions to any disability,
pension benefit, 401(k) or unemployment compensation plans relating to any Arena
Employee (collectively the "Employee Compensation") in respect of periods
through the Closing Date have been or will be, as of the Closing Date, paid in
full, in compliance with applicable Law.
Section 5.11 Compliance with Law. To the Manager's knowledge, in
performing its obligations under the Management Agreement, the Manager has
complied with all applicable Law in all material respects.
Section 5.12 Brokers. No Person, other than Chilmark Partners, is
entitled to any brokerage, financial advisory, finder's or similar fee or
commission payable by the Covanta Parties in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Covanta Parties.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE CITY
The City makes the following representations to the Covanta Parties:
Section 6.1 Organization. The City is a California charter city and
municipal corporation duly organized and established pursuant to the City
Charter and the Laws of the State of California and has the full power,
authority and legal right to conduct its business as presently conducted with
respect to the Facility, to own or hold under lease the property it purports to
own or hold under lease with respect to the Facility and to enter into and
perform its obligations under this Agreement.
Section 6.2 Authority. Relative to this Agreement, the City has the
municipal power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution, delivery, and performance of this
Agreement by the City and the consummation by the City of the transactions
contemplated hereby have been duly authorized by all requisite City Council
actions and corporate actions. This Agreement has been duly and validly executed
and delivered by the City and (assuming this Agreement constitutes a valid and
binding obligation of the Covanta Parties) constitutes a valid and binding
agreement of the City, enforceable against the City in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium,
and other Laws affecting creditors' rights generally from time to time in effect
and to general equitable principles.
Section 6.3 Consents and Approvals. Except for the consents
contemplated to be obtained in this Agreement, no consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Authority, domestic or foreign, or of any other Person is required to be made or
obtained by the City in connection with the execution, delivery, and performance
by the City of this Agreement and the consummation by the City of the
transactions contemplated hereby.
Section 6.4 No Violations. To the City's knowledge neither the
execution, delivery, or performance of this Agreement by the City, nor the
consummation by the City of the transactions contemplated hereby, nor compliance
by the City with any of the provisions hereof, will (a) conflict with or result
in any violations of any city ordinances of the City, (b) result in a violation
or breach of, or constitute (with or without due notice or lapse of time) a
default (or give rise to any right of termination, cancellation, acceleration,
vesting, payment, exercise, suspension, or revocation) under any of the terms,
conditions, or provisions of any note, bond, mortgage, deed of trust, security
interest, indenture, license, contract, agreement, plan, or other instrument or
obligation to which the City is a party or by which the City or the City's
properties or assets may be bound or affected, (c) violate any order, writ,
injunction, decree, statute, rule, or regulation applicable to the City or the
City's properties or assets, (d) result in the creation or imposition of any
encumbrance on any asset of the City, or (e) cause the suspension or revocation
of any permit, license, governmental authorization, consent, or approval
necessary for the City to conduct its business as currently conducted, except in
the case of clauses (b), (c), (d), and (e) for violations, breaches, defaults,
terminations, cancellations, accelerations, creations, impositions, suspensions,
or revocations that would not individually or in the aggregate have a Material
Adverse Effect.
Section 6.5 Brokers. No Person is entitled to any brokerage, financial
advisory, finder's or similar fee or commission payable by the City in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the City.
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ARTICLE VII
COVENANTS
Section 7.1 Bankruptcy Court Approval of Agreement
(a) As promptly as practicable following the City Council approval of
this Agreement but in no event later than November 10, 2003, and subject to the
provisions of this Agreement, the Covanta Parties shall file a motion (the
"Approval Motion") with the Bankruptcy Court seeking entry of a Bankruptcy Court
order authorizing the consummation of the transactions contemplated in this
Agreement (the "Approval Order"), subject to higher or better offers. The
Covanta Parties shall provide a copy of the form of the Approval Motion and
Approval Order to the City for its review and comment prior to filing. Upon
filing, the Covanta Parties shall notify, as is required by the Bankruptcy Code,
all parties entitled to notice of the Approval Motion and/or the Approval Order,
as modified by orders in respect of notice which may be issued at any time and
from time to time by the Bankruptcy Court.
(b) The Covanta Parties and the City agree to use their reasonable best
efforts to obtain entry of the Approval Order by the Bankruptcy Court pursuant
to the applicable provisions, including sections 363 and 365, of the Bankruptcy
Code. The Approval Order is expected to contain, among other provisions
reasonably requested by the City, the following provisions (it being understood
that certain of such provisions may be contained in either the findings of fact
or conclusions of Law to be made by the Bankruptcy Court as part of the Approval
Order):
(i) the termination and rejection at the Closing of the Management
Agreement;
(ii) authorization for the rejection of the Rejected Contracts;
(iii) authorization for the Manager's assumption and assignment of the
Designated Contracts to the City or the City Designee pursuant to sections
363 and 365 of the Bankruptcy Code;
(iv) authorization for the Manager's assignment and transfer to the
City or the City Designee all of the Manager's right, title and interest
(including common law rights) to all of its Transferred Assets;
(v) the transfers of the Assigned Contracts and the Transferred Assets
by the Manager to the City or the City Designee are or will be legal, valid
and effective transfers, free and clear of Liens, of the Assigned Contracts
and the Transferred Assets;
(vi) all Persons who are parties to the Assigned Contracts shall be
enjoined from raising after the date of the assignment any uncured defaults
under such contract;
(vii) any Person that may have had the right to consent to the
assignment of an Assigned Contract is deemed to have consented to such
assignment as required by section 365(e)(2)(A)(ii) of the Bankruptcy Code
if it fails to object to the assumption and assignment;
(viii) the City is obligated to pay any Cure Costs payable to the
other parties to the Assigned Contracts consistent with the terms of this
Agreement;
(ix) the Reimbursement Amount shall result in a reduction in the same
amount of the Reimbursement Claim;
(x) all Persons are enjoined from taking any action against the City,
any of the City's affiliates (as they existed immediately prior to the
Closing) or the City Designee to recover any claim or Excluded Liability
which such Person has solely against the Manager or any of the Manager's
affiliates (as they existed immediately following the Closing);
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(xi) the transactions contemplated by this Agreement are undertaken by
the City and the Covanta Parties at arms' length, without collusion and in
good faith within the meaning of section 363(m) of the Bankruptcy Code, and
such Parties are entitled to the protections of section 363(m) of the
Bankruptcy Code;
(xii) the order provides that any stay of orders authorizing the use,
sale or lease of property or assumption of contracts as provided in Fed. R.
Bankr. Proc. 6004(g) and/or Fed. R. Bankr. Proc. 6006(d) shall not apply to
the Approval Order and that the Approval Order is immediately effective and
enforceable; and
(xiii) the Bankruptcy Court retains exclusive jurisdiction to interpret,
construe and enforce the provisions of the Final Order in all respects,
provided that in the event the Bankruptcy Court abstains from exercising or
declines to exercise jurisdiction with respect to any matter provided for
in this clause (xiii) or is without jurisdiction, such abstention, refusal
or lack of jurisdiction shall have no effect upon and shall not control,
prohibit or limit the exercise of jurisdiction of any other court having
competent jurisdiction with respect to any such matter.
(c) If the Approval Order or any other orders of the Bankruptcy Court
relating to this Agreement shall be appealed by any Person (or a petition for
certiorari or motion for rehearing or reargument shall be filed with respect
thereto), the Covanta Parties agree to take all steps as may be reasonable and
appropriate to defend against such appeal, petition or motion, and the City
agrees to cooperate in such efforts.
Section 7.2 Conduct of Business by the Manager Pending the Closing.
From the date hereof until the date of the Closing the Manager shall operate the
Facility in accordance with the Management Agreement and shall not (i) sell,
transfer, or otherwise dispose of or encumber any material tangible or
intangible assets included in the Transferred Assets (other than under Permitted
Liens or in the provision of services in the ordinary course of business in
accordance with past practice or as permitted under the terms of the DIP
Financing); (ii) grant any increase in the compensation or benefits of any Arena
Employee (other than pursuant to the terms of any employee retention, incentive,
or severance plan approved by the Bankruptcy Court and delivered to City); or
(iii) without reasonably consulting with (or, with respect to post-petition
executory contracts on Schedule 2.4(c) with an annual cost of $40,000 or more,
without the approval of) the City, modify, cancel, reject or otherwise impair or
permit to lapse any of its executory contracts. The Manager shall be permitted
to cause Current Liabilities to Covanta or Covanta affiliates to be paid in
accordance with the provisions of the Management Agreement. The Manager shall,
to the fullest extent permitted by Law, inform the City of all important
developments and events in respect of the conduct of the Assigned Contracts.
Section 7.3 Access and Information. The Manager shall afford to the
City, the City Designee (including its financial advisors, counsel and
accountants, in each case subject to a customary and appropriate confidentiality
agreement) and the City's financial advisors, legal counsel, accountants,
consultants, financing sources, and other authorized representatives reasonable
access during normal business hours throughout the period prior to the Closing
Date to all books, records, properties, and personnel of the Manager that
pertain to the Designated Contracts in a manner which is not disruptive to the
Manager's business operations, and, during such period, shall furnish as
promptly as practicable to the City any and all such information as the City may
reasonably request pertaining to the Designated Contracts.
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Section 7.4 Notification.
(a) Each Party shall promptly notify the other of any litigation,
arbitration or administrative proceeding pending or, to the relevant Party's
knowledge, threatened against such Party which challenges or, if adversely
determined could materially affect, the transactions contemplated hereby.
(b) The Manager shall promptly provide written notice to the City of
any change in any of the information contained in the representations or
warranties made by the Covanta Parties in Article 5 or any of the Schedules
attached hereto and shall promptly furnish any information that the City may
reasonably request in relation to such change.
Section 7.5 No Inconsistent Action. Neither the City nor the Covanta
Parties shall take any action that is materially inconsistent with its
obligations under this Agreement, except for (and as follows from) the Approval
Motion and except as approved by the Bankruptcy Court, and, until entry of the
Final Order, except as required under the Covanta Parties' fiduciary duties.
Section 7.6 Satisfaction of Conditions. Prior to the Closing, each of
the Parties shall use commercially reasonable efforts with due diligence and in
good faith to promptly satisfy all the conditions precedent to the Closing set
out in Article 3 in order to expedite the consummation of the transactions
contemplated hereby.
Section 7.7 Filings. As promptly as practicable after the execution of
this Agreement, each Party shall use its reasonable efforts to obtain, and to
co-operate with the other Parties in obtaining, the approvals and consents
referred to in Sections 3.1(a) and (b), and to take all reasonable actions to
avoid the entry of any order or decree by any Governmental Authority prohibiting
the consummation of the transactions contemplated hereby and shall furnish to
the other Parties all such information in its possession as may be necessary for
the completion of the notifications to be filed by the other Parties.
Section 7.8 Additional Matters and Further Assurances.
(a) Subject to the terms and conditions of this Agreement, each of the
parties hereto agrees to use all commercially reasonable efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper, or advisable under applicable Laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including using all commercially reasonable efforts to obtain all necessary
waivers, consents, and approvals required under this Agreement.
(b) In addition to the provisions of this Agreement, from time to time
after the Closing Date, the Manager and the City will use all commercially
reasonable efforts to execute and deliver such other instruments of conveyance,
transfer or assumption, as the case may be, and take such other actions as may
be reasonably requested to implement more effectively, the conveyance and
transfer of the Assigned Contracts to the City and the assumption of the Assumed
Liabilities by the City.
(c) The Manager and the City shall cooperate and take such actions as
may be reasonably requested by the other in order to effect an orderly transfer
of the Assigned Contracts and the Transferred Assets with a minimum of
disruption to the operations and employees of the businesses of the Parties.
Section 7.9 Employment Matters.
(a) The Covanta Parties shall have sole responsibility for (i) all
Employee Compensation due for any period prior to the Closing Date, and (ii)
"continuation coverage" benefits provided under group health plans to all
current or former Arena Employees and qualified beneficiaries relating thereto
for whom a qualifying event has occurred on or prior to the Closing Date. Terms
used in this subsection 7.9(a) and not otherwise defined herein shall have the
meanings ascribed to them under COBRA.
Page 19
(b) OFM shall comply with all applicable notice and other requirements
under the federal Workers Adjustment and Retraining Notification Act (the "WARN
Act") and any similar state or local statute with respect to all Arena Employees
for the period to and including Closing, and the City shall comply with all
applicable notice and other requirements under the WARN Act and any similar
state or local statue with respect to all Arena Employees for the period after
the Closing.
(c) No later than ten days before the Closing, the City (or City
Designee) shall offer employment to each Arena Employee, except for those
employees designated on Schedule 7.9(c) as "Terminated Employees". With respect
to each Arena Employee who accepts such employment as of the Closing, the City
(or the City Designee, if such employees are employed by the City Designee)
shall provide similar compensation and working hours as each such Arena Employee
enjoyed immediately prior to the Closing Date and shall maintain such similar
compensation and working hours for the 45-day period immediately following the
Closing Date. The City (or the City Designee, if such employees are employed by
the City Designee) shall also provide group health coverage to each Arena
Employee who accepts such employment as of the Closing Date and had group health
plan coverage immediately prior to the Closing Date, and shall maintain such
coverage for the 45-day period immediately following the Closing Date.
Section 7.10 Maintenance of Books and Records. The Covanta Parties and
the City shall preserve until the fifth anniversary of the Closing Date (or,
with respect to OFM, until such time as OFM is liquidated) all records possessed
by such Party relating to the Assigned Contracts prior to the Closing Date.
After the Closing Date, where there is a legitimate purpose, such Party shall
provide the other Party with access, upon prior reasonable written request
specifying the need therefor, during regular business hours, to (i) the relevant
officers and employees of such Party and (ii) the books of account and records
of such Party, but, in each case, only to the extent relating to the Assigned
Contracts prior to the Closing Date, and the other Parties and its
representatives shall have the right to make copies of such books and records,
provided that the foregoing right of access shall not be exercisable in such a
manner as to interfere unreasonably with the normal operations and business of
such Party. Such records may nevertheless be destroyed by a Party if such Party
sends the other Parties written notice of its intent to destroy records,
specifying with reasonable particularity the contents of the records to be
destroyed. Such records may then be destroyed after the thirtieth day following
delivery of such notice unless the other Parties objects to the destruction, in
which case the Party seeking to destroy the records shall either agree to retain
such records or to deliver such records to the objecting Party.
Section 7.11 Survival of Representations and Warranties. No
representations or warranties given by the Covanta Parties or by the City in
this Agreement or in any instrument delivered pursuant to this Agreement shall
survive beyond the Closing Date.
Section 7.12 Disclaimer. In entering into this Agreement, the City:
(a) acknowledges that, except for the specific representations and
warranties of the Covanta Parties contained herein, the Covanta Parties and any
of their directors, officers, employees, affiliates, controlling Persons,
agents, advisors or representatives, shall not make and shall not be deemed to
have made any representation or warranty, either express or implied, as to the
accuracy or completeness of any of the information (including any estimates,
projections, forecasts or other forward-looking information) provided or
otherwise made available to the City or any of its directors, officers,
employees, affiliates, controlling Persons, agents, advisors or representatives
(including in any management presentations, information or offering memorandum,
supplemental information or other materials or information with respect to any
of the above);
Page 20
(b) agrees that the Covanta Parties and their directors, officers,
employees, affiliates, controlling Persons, agents, advisors or representatives
shall not have any liability or responsibility whatsoever to the City or any of
its directors, officers, employees, affiliates, controlling Persons, agents,
advisors or representatives on any basis in respect of the specific
representations and warranties of the Covanta Parties; and
(c) has no knowledge of any breach of a representation or warranty of
the Covanta Parties made under this Agreement or of any material errors or
omissions as of the date hereof.
ARTICLE VIII
TERMINATION
Section 8.1 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing:
(a) by mutual consent of the Covanta Parties and the City;
(b) by either the Covanta Parties or the City (provided that any such
Party is not then in breach of any provision of this Agreement):
(i) if the Closing has not occurred prior to January 22, 2004;
(ii) if a Governmental Authority shall have issued an order, decree or
ruling or taken any other action (which order, decree, ruling or action the
Parties hereto shall use their reasonable best efforts to lift or reverse),
in each case permanently restraining, enjoining or otherwise prohibiting
the transactions contemplated by this Agreement and such order, decree,
ruling or other action shall have become final and nonappealable; or
(iii) if the Bankruptcy Court approves an alternative transaction that
is considered "better and higher" to the Covanta Parties, from a financial
perspective;
(c) by the City (provided that the City is not then in breach of any
provision of this Agreement):
(i) if the Approval Order shall not have become a Final Order by
December 22, 2003;
(ii) if either of the Covanta Parties shall be in breach or default
with respect to the due and timely performance of any of its covenants or
agreements contained herein, or if its representations or warranties
contained in this Agreement shall have become inaccurate, if such default,
breach or inaccuracy has not been cured (if capable of being cured) or
waived within 15 days after written notice to such Covanta Party
specifying, in reasonable detail, such claimed default, breach or
inaccuracy and demanding its cure or satisfaction and such default, breach
or misrepresentation would, if not cured, constitute or would reasonably be
expected to constitute a Material Adverse Effect, provided that if and to
the extent that a misrepresentation consists of the failure to provide
information relative to certain facts, circumstances or matters, the
provision of the information in question shall not constitute cure if the
facts, circumstances or matters previously undisclosed, individually or in
the aggregate, constitute or be reasonably expected to constitute a
Material Adverse Effect and are not capable of cure and effectively cured
within such 15-day period; or
Page 21
(iii) if any of the conditions set forth in Sections 3.1 or 3.2 shall
have become definitively incapable of fulfillment or cure and shall not
have been waived by the City; and
(d) by the Covanta Parties (provided that no Covanta Party is then in
breach of any provision of this Agreement):
(i) if the City shall be in material default or material breach with
respect to the due and timely performance of any of its covenants or
agreements contained herein or if its representations or warranties
contained in this Agreement shall have become inaccurate in any material
respect if such default, breach or inaccuracy has not been cured (if
capable of being cured) or waived within 15 days after written notice to
the City specifying in reasonable detail such claimed default, breach or
inaccuracy and demanding its cure or satisfaction; or
(ii) if any of the conditions set forth in Sections 3.1 or 3.3 shall
have become definitively incapable of fulfillment or cure and shall not
have been waived by Covanta.
Section 8.2 Procedure and Effect of Termination.
(a) If this Agreement is terminated under Section 8.1, written notice
thereof shall forthwith be given to the other Parties to this Agreement and this
Agreement shall terminate (subject to the provisions of this Section 8.2) and
the transactions contemplated hereby shall be abandoned without further action
by any of the Parties hereto.
(b) If this Agreement is terminated as provided herein, then:
(i) upon request therefor each Party shall return all documents, work
papers and other material of any other Party relating to the transactions
contemplated hereby, whether obtained before or after the execution hereof,
to the Party furnishing the same; and
(ii) the Parties shall be released from future performance and no
Party hereto shall have any liability or further obligation to any other
Party resulting from such termination.
(c) The provisions of Article 9 of this Agreement shall survive its
termination.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Notices. All notices, claims, demands, and other
communications hereunder shall be in writing and shall be deemed given upon (a)
confirmation of receipt of a facsimile transmission, (b) confirmed delivery by a
standard overnight carrier or when delivered by hand, or (c) the expiration of
five Business Days after the day when mailed by registered or certified mail
(postage prepaid, return receipt requested), addressed to the respective Parties
at the following addresses (or such other address for a Party as shall be
specified by like notice):
Page 22
(a) If to the City, to
200 South Anaheim Blvd.
Anaheim, CA 92805
Tel: 714-765-5165
Fax: 714-765-5164
Attn: David Morgan, City Manager
with copies to
The City of Anaheim
200 South Anaheim Blvd.
Anaheim, CA 92805
Tel: 714-765-5169
Fax: 714-765-5123
Attn: Jack White, City Attorney
Orrick, Herrington & Sutcliffe, LLP
777 South Figueroa Street
Suite 3200
Los Angeles, CA 90017-5855
Tel.: 213-612-2425
Fax: 213-612-2499
Attention: Eugene J. Carron, Esq.
Freeman, Freeman & Smiley, LLP
2 Park Plaza, Suite 1245
Irvine, CA 92614
Tel: 949-252-2708
Fax: 949-252-2776
Attention: Jill MacGregor Draffin, Esq.
and
(b) If to the Covanta Parties, to
Covanta Energy Corporation
40 Lane Road
Fairfield, NJ 07007
Tel: 973-882-9000
Fax: 973-882-7202
Attention: Jeffrey R. Horowitz
with copies to
Cleary, Gottlieb, Steen & Hamilton
1 Liberty Plaza
New York, NY
Tel: (212) 225-2000
Fax: (212) 225-3999
Attention: Deborah M. Buell, Esq.
Filip Moerman, Esq.
Nixon Peabody LLP
401 9th Street, N.W., Suite 900
Washington, DC 20004-2128
Tel: 202-585-8392
Fax: 202-585-8080
Attention: William Andrews, Esq.
Section 9.2 Publicity. No Party to this Agreement shall issue any press
release or other publicity concerning the proposed transaction without the prior
approval of the other Party, except as otherwise required by Law. Each Party
shall provide to the other Party a reasonable opportunity to review any press
release or other publicity prior to its issuance.
Section 9.3 Descriptive Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 9.4 Entire Agreement; Assignment. This Agreement (including the
Annexes, Schedules and the other documents and instruments referred to herein)
Page 23
(a) constitutes the entire agreement and supersedes all other prior agreements
and understandings, both written and oral, among the Parties or any of them,
with respect to the subject matter hereof, including any transaction between or
among the Parties hereto, provided, however, that the terms of the
confidentiality agreement, if any, executed in connection with the City's
investigation and due diligence of the Designated Contracts shall survive
execution of this Agreement, and (b) shall not be assigned by operation of Law
or otherwise.
Section 9.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of California without regard
to the rules of conflict of Laws of the State of California or any other
jurisdiction. Each of the Parties hereto irrevocably and unconditionally
consents to submit to the jurisdiction of the courts of the Southern District of
New York, including the Bankruptcy Court, for any litigation arising out of or
relating to this Agreement and the transactions contemplated thereby (and agrees
not to commence any litigation relating thereto except in such courts), waives
any objection to the laying of venue of any such litigation therein, and agrees
not to plead or claim that such litigation has been brought in an inconvenient
forum.
Section 9.6 Expenses. Except as expressly provided herein, whether or
not the transactions contemplated by this Agreement are consummated, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated thereby shall be paid by the Party incurring such expenses. The
foregoing shall not affect the legal right, if any, that any Party hereto may
have to recover expenses from any other Party that breaches its obligations
hereunder.
Section 9.7 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of all the Parties hereto.
Section 9.8 Waiver. At any time prior to the Closing Date, the Parties
hereto may (a) extend the time for the performance of any of the obligations or
other acts of the other Parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto, and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a Party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such Party.
Section 9.9 Counterparts; Effectiveness. This Agreement may be executed
in two or more counterparts, each of which shall be deemed to be an original but
all of which shall constitute one and the same agreement. This Agreement shall
become effective when each Party hereto shall have received counterparts thereof
signed by the other Parties hereto.
Section 9.10 Severability; Validity; Parties in Interest. If any
provision of this Agreement or the application thereof to any Person or
circumstance is held invalid or unenforceable, the remainder of this Agreement,
and the application of such provision to other Persons or circumstances, shall
not be affected thereby, and to such end, the provisions of this Agreement are
agreed to be severable. Nothing in this Agreement, express or implied, is
intended to confer upon any Person not a party to this Agreement any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
Section 9.11 Representation. Covanta shall represent the Manager for
the purposes of this Agreement. Any notice given or communication made to the
City on behalf of the Manager by Covanta shall constitute effective notice or
communication to the City. Any notice given or communication made by the City to
Covanta shall constitute effective notice or communication to the Manager. Any
action, approval, or consent by Covanta under or with respect to this Agreement
shall bind both Covanta and the Manager. In connection with the transfer of the
Designated Contracts and the Transferred Assets to the City, Covanta shall act
as agent for any of its direct or indirect subsidiaries who is not a Party and
who has any interest in any of the Designated Contracts or the Transferred
Assets. Covanta represents that it has the authority to act on behalf of the
Manager as provided in this Section 9.11.
[SIGNATURES ON FOLLOWING PAGE]
Page 24
IN WITNESS WHEREOF, the Covanta Parties and the City have caused this
Agreement to be executed on their behalf by their officers thereunto duly
authorized, as of the date first above written.
COVANTA ENERGY CORPORATION
By:
---------------------------------------------
Name:
Title:
OGDEN FACILITY MANAGEMENT CORPORATION OF ANAHEIM
By:
---------------------------------------------
Name:
Title:
CITY OF ANAHEIM, CALIFORNIA
By:
---------------------------------------------
Name:
Title:
Attest:
By:
-----------------------------------------------
Name: Sheryll Schroeder
Title: City Clerk
Approved as to Form:
By:
-----------------------------------------------
Name: Jack L. White, Esq.
Title: City Attorney
Page 25
Annex A
-------
Definitions
Unless otherwise defined herein, terms used herein shall have the
meanings set forth below:
"Agreement" means this Termination Agreement, including all Annexes,
Exhibits and Schedules hereto, as the same may be amended from time to time in
accordance with its terms.
"Approval Motion" shall have the meaning set forth in Section 7.1(a)
hereof.
"Approval Hearing" shall mean the hearing before the Bankruptcy Court
to consider the Approval Motion, as such hearing may be adjourned or otherwise
continued.
"Approval Order" shall have the meaning set forth in Section 7.1(a)
hereof.
"Arena Employee" shall mean any Full-time or Part-time employee, as
such terms are defined under applicable federal and state employment Laws,
employed by the Manager as of the date hereof.
"Assigned Contract" shall mean a Designated Contract that is assumed by
Manager and assigned to the City or a City Designee under Section 365 of the
Bankruptcy Code, as of the Closing.
"Assumed Liabilities" shall have the meaning set forth in Section 2.6
hereof.
"Bank Agreement" means the bank agreement dated December 1, 1993,
relating to the Certificates of Participation, between CSFB, OFM and the City,
as amended and supplemented from time to time.
"Bankruptcy Code" shall mean title 11 of the United States Code,
sections 101-1330.
"Bankruptcy Court" shall have the meaning set forth in the Recitals
hereof.
"Business Day" means a day on which the major stock exchanges in the
United States are open for trading.
"Certificates of Participation" and "COPS" mean the $126,500,000 City
of Anaheim Certificates of Participation Municipal Adjustable Rate Taxable
Securities (1993 Arena Financing Project) Evidencing Direct Undivided Fractional
Interests of the Owners Thereof in Lease Payments to be made by the City of
Anaheim, California, pursuant to that certain Lease Agreement with the Anaheim
Public Improvement Corporation, a California non-profit corporation, of which a
principal amount of $113,700,000 remains outstanding.
"Chapter 11 Cases" means the cases commenced by the Covanta Parties on
April 1, 2002 under Chapter 11 of the Bankruptcy Code, pending in the Bankruptcy
Court under Docket No. 02-40826(CB), jointly administered.
"City" shall have the meaning set forth in the Preamble hereof.
"City Council" shall mean the governing body of the City.
A-1
"City Designee" shall mean any entity, including any of the City's
direct or indirect subsidiaries that the City may appoint to (i) assume all or
certain Assigned Contracts or Assumed Liabilities, (ii) receive all or certain
Transferred Assets, or (iii) employ all or certain Arena Employees on the
Closing Date, and which does assume such Assigned Contracts and Assumed
Liabilities, receive such Transferred Assets, or employ such Arena Employees,
subject to satisfaction of the requirements of Section 365 of the Bankruptcy
Code including the provision of adequate assurances for future performance.
"City Payable" shall mean an amount of $177,417.00.
"Closing" shall have the meaning set forth in Section 4.1 hereof.
"Closing Date" shall have the meaning set forth in Section 4.1 hereof.
"Closing Statement" shall have the meaning set forth in Section 2.3(c)
hereof.
"COBRA" shall mean the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended.
"Contract" means any agreement, contract, commitment, or other binding
arrangement or understanding, whether written or oral.
"COPS Letter of Credit" means the $127,975,833.33 letter of credit, as
periodically adjusted, issued by CSFB in favor of The Bank of New York, in
connection with the COPS Transaction.
"COPS Financing Documents" shall have the meaning ascribed to it in the
glossary to the Leasehold Transaction documents.
"COPS Transaction" shall have the meaning set forth in the Recitals
hereof.
"Covanta" shall have the meaning set forth in the Preamble hereof.
"Covanta Parties" shall have the meaning as set forth in the Preamble
hereof.
"CSFB" shall have the meaning set forth in the Recitals hereof.
"Cure Costs" means any amounts payable as contemplated in Section 2.5
hereof.
"Current Assets" shall mean cash, consigned tickets, net accounts
receivable, prepaid expenses (including, but not limited to, prepaid insurance),
prepaid Disney commissions and other assets, as set forth on Schedule 2.3(a)-1.
"Current Liabilities" shall mean accounts payable (excluding all
accounts payable that arose, or relate to periods, prior to April 1, 2002, but
including the City Payable and possessory interest tax payable), accrued
expenses, unearned ticket revenue, unearned premium revenue and other current
liabilities, as set forth in, and derived from Schedule 2.3(a)-1.
"Designated Contracts" shall have the meaning set forth in Section
2.4(a) hereof.
"DIP Financing" shall mean the credit facility entered into between
Covanta, OFM and their related subsidiaries who have filed for bankruptcy
protection and certain financial institutions pursuant to the
Debtor-In-Possession Credit Agreement dated April 1, 2002.
"DIP Lenders" shall mean the Lenders under the DIP Financing, as
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defined therein.
"Dollars" or "$" means dollars of the United States of America.
"Employee Compensation" shall have the meaning set forth in Section
5.10 hereof.
"Escrow" shall have the meaning set forth in section 2.2 hereof.
"Excluded Liabilities" shall have the meaning set forth in Section 2.7
hereof.
"Facility" shall have the meaning set forth in the Recitals hereof.
"FICA" shall mean the taxes imposed by the U.S. Internal Revenue
Service on employees and employers under the Federal Insurance Contributions
Act.
"Final Closing Statement" shall have the meaning set forth in Section
2.3(f) hereof.
"Final Order" means the version of the Approval Order that shall have
become final and entered by the Bankruptcy Court as contemplated by Section 7.1
hereof.
"FUTA" shall mean the taxes imposed by the U.S. Internal Revenue
Service on employers under the Federal Unemployment Tax Act.
"Governmental Authority" means any federal, state, local or foreign
government or any subdivision, agency, instrumentality, authority, department,
commission, board or bureau thereof, provided, in each case, that the relevant
action in any given circumstance has the force of Law, or any federal, state,
local or foreign court, tribunal or arbitrator of competent jurisdiction
(including the Bankruptcy Court).
"Independent Auditor" shall mean PricewaterhouseCoopers or another
independent auditor with arbitration experience mutually agreeable to the
Parties.
"Law" means any provision of any foreign, federal, state or local law,
statute, ordinance, charter, constitution, treaty, code, rule, regulation or
guidelines (including those of self-regulatory organizations such as the New
York Stock Exchange and the National Association of Securities Dealers, Inc.).
"Leasehold Documents" shall mean the Operative Documents as defined in
the glossary to the Leasehold Transaction documents.
"Leasehold Letters of Credit" shall mean the Debt Letter of Credit and
the Equity Letter of Credit collectively, each as defined in the Leasehold
Documents.
"Leasehold Participants" shall have the meaning set forth in the
Recitals hereof.
"Leasehold Transaction" shall have the meaning set forth in the
Recitals hereof.
"Liability" means any debt, liability or obligation of any nature,
whether secured, unsecured, recourse, nonrecourse, liquidated, unliquidated,
accrued, absolute, fixed, contingent, ascertained, unascertained, known, unknown
or otherwise.
"Lien" means any security, interest, lien, charge, mortgage, deed,
A-3
assignment, pledge, hypothecation, claim, encumbrance, easement, restriction or
interest of another Person of any kind or nature.
"Management Agreement" shall have the meaning set forth in the
Recitals hereof.
"Manager" shall have the meaning set forth in the Preamble hereof.
"Material Adverse Effect" means (a) any event, change, conditions or
matters in respect of the Designated Contracts that, individually or in the
aggregate, result in or would be reasonably expected to result in a material
adverse effect on the business, results of operations, assets, condition
(financial or otherwise) of the Designated Contracts taken as a whole, excluding
any such effect to the extent resulting from or arising in connection with (i)
the filing of the Chapter 11 Cases, (ii) macro-economic changes or general
market-related changes unless the Designated Contracts are affected by such
changes in a manner that is substantially disproportionate when compared with
competitive or peer businesses, or (iii) the conditions of the Facility that are
commonly referred to by the Parties as the "chilled pipes issue"; or (b) any
events, conditions or matters that would have a material adverse effect on the
legality, validity or enforceability of this Agreement and the agreements and
instruments to be entered into in connection herewith, the consummation of the
transactions contemplated hereby, or the realization of the rights and remedies
hereunder.
"Mighty Ducks Agreement" shall mean the agreement dated February 24,
1993 between OFM and Anaheim Sports, Inc., formerly Disney Sports Enterprises
Inc., as amended or supplemented as follows:
1. March 31, 1993 First Amendment between OFM and Anaheim
Sports, Inc.
2. June 15, 1993 Letter regarding the Use of Complimentary
Suites and Club Seats, from Tony Tavares to Brad Mayne.
3. September 15, 1993 Standard Operating Procedures (as may be
modified from time to time), pursuant to Section 16(c) of
the Mighty Ducks Agreement.
4. July 2, 1994 Letter Agreement regarding the Bronze Club Seat
Program, from Brad Mayne to Andy Roundtree.
5. April 29, 1999 Letter Agreement regarding All-Event Silver
Club "West" Seats and Revitalized Sports Pack, from Spencer
Neumann to Tim Ryan.
6. May 26, 1999 Letter Agreement regarding the sale and
packaging of seats in Sections 310-317, from Spencer Neumann
to Tim Ryan.
7. July 12, 1999 Letter Agreement regarding
Advertising/Sponsorship Issues, from Rick Schlesinger to Tim
Ryan.
8. October 15, 2001 Letter Agreement regarding Licensing of
Luxury Boxes, from Larry Cohen to Tim Ryan.
9. March 7, 2002 Letter regarding the Benchmark Standard from
Rick Schlesinger to Tim Ryan.
10. August 14, 2001 Letter Agreement regarding
Advertising/Sponsorship engaging The Cabana Group LLC as
agent, from Rick Schlesinger to Tim Ryan.
A-4
11. February 10, 2003 Agreement regarding Licensing of Luxury
Boxes, from Bruce Carter to Tim Ryan.
12. August 27, 2003 Letter Agreement regarding LED Purchase and
Revenue Sharing, from Al Coates to Tim Ryan.
"Mutual Release" shall have the meaning set forth in Section 2.1(a)
hereof.
"Net Working Capital" shall mean Current Assets minus Current
Liabilities.
"New City Financing" shall mean the bond issue in an estimated
principal amount of no more than $45,000,000.00, to be carried out pursuant to
the following documents:
1. Amended and Restated Lease Agreement dated as of December 1,
2003 by and between the Anaheim Public Financing Authority,
a public entity of the State of California (the"
Authority"), as lessor, and the City, as lessee, as the same
may be amended and supplemented;
2. Amended and Restated Site and Facility Lease dated as of
December 1, 2003 by and between the City, as lessor, and the
Authority, as lessee, as the same may be amended and
supplemented; and
3. Indenture of Trust dated as of December 1, 2003 by and
between the Authority and BNY Western Trust Company, as the
same may be amended and supplemented.
"OFM" shall have the meaning set forth in the Preamble hereof.
"Ogden Agreement" shall mean the Ogden Agreement related to the
Leasehold Transaction, as such agreement is defined in the glossary to the
Leasehold Transaction.
"Ogden Guaranty" shall mean the Ogden Guaranty related to the Leasehold
Transaction, as such agreement is defined in the glossary to the Leasehold
Transaction.
"Participation Agreement" shall mean the Participation Agreement
related to the Leasehold Transaction, as such agreement is defined in the
glossary to the Leasehold Transaction.
"Party" or "Parties" are those Persons listed in the first paragraph of
this Agreement.
"Permitted Liens" means any non-material Liens on non-material
Designated Contracts and Liens that will be released before or on Closing.
"Person" means any corporation, partnership, joint venture, limited
liability company, organization, entity, authority or individual.
"Pre-Closing Statement" shall have the meaning set forth in Section
2.3(a) hereof.
"Reference Balance Sheet" shall have the meaning set forth in Section
2.3(a) hereof.
"Reimbursement Amount" shall mean $40,000,000, subject to adjustment as
provided in Section 2.3 hereof.
A-5
"Reimbursement Claim" shall mean the claim CSFB has against the Covanta
Parties resulting from a draw on the COPS Letter of Credit, pursuant to Section
III.B of the Bank Agreement.
"Reimbursement Payment" shall have the meaning set forth in Section 2.2
hereof.
"Rejected Contracts" shall have the meaning set forth in Section 2.1(a)
hereof.
"Resolution Period" shall have the meaning set forth in Section 2.3(d)
hereof.
"Schedule 2.4(a) Contracts" shall have the meaning set forth in Section
2.4(a) hereof.
"Schedules" means the schedules hereto.
"Taxes" means all taxes, charges, fees, duties, levies or other
assessments, including income, gross receipts, net proceeds, ad valorem,
turnover, real and personal property (tangible and intangible), sales, use,
franchise, excise, value added, license, payroll, unemployment, environmental,
customs duties, capital stock, disability, stamp, leasing, lease, user,
transfer, fuel, excess profits, occupational and interest equalization, windfall
profits, severance and employees' income withholding and Social Security taxes
imposed by the United States or any other country or by any state, municipality,
subdivision or instrumentality of the United States or of any other country or
by any other tax authority, including all applicable penalties and interest, and
such term shall include any interest, penalties or additions to tax attributable
to such Taxes.
"Terminated Employees" shall have the meaning set forth in Section
7.9(b) hereof.
"Transferred Assets" shall have the meaning set forth in the Recitals
hereof.
"Undisclosed Contract" shall have the meaning set forth in Section
2.4(b) hereof.
"WARN Act" shall have the meaning set forth in Section 7.9(b) hereof.
A-6
Annex B
-------
Form of Mutual Release
This Management Agreement Mutual Release dated as of December o, 2003
(the "Release"), is made by and between Covanta Energy Corporation, a Delaware
corporation ("Covanta"), Ogden Facility Management Corporation of Anaheim, a
California corporation (the "Manager" and together with Covanta, the "Covanta
Parties"), the City of Anaheim, a municipality incorporated in the State of
California (the "City"), and Anaheim Public Improvement Corporation, a
California corporation (together with the City, the "City Parties".
Reference is made to the Second Amended and Restated Arena Management
Agreement dated December 1, 1993 between the Manager and the City, as amended or
supplemented from time to time (the "Management Agreement"), the Termination
Agreement dated as of November 5, 2003 by and between the Covanta Parties and
the City (the "Termination Agreement"), and the Final Order entered by the
Bankruptcy Court approving the transactions contemplated in the Termination
Agreement, dated as of December [4], 2003.
All capitalized terms not defined herein shall have the meaning
attributed to them in the Termination Agreement.
Pursuant to Section 4.2(a) of the Termination Agreement, the Covanta
Parties and the City have terminated the Management Agreement effective as of
the date hereof. As required under the terms of the Termination Agreement, the
Covanta Parties and the City Parties hereby enter into this Release, and release
each other irrevocably, definitively and unconditionally from any and all
obligations or liabilities, known or unknown, actual or contingent, under or in
connection with the Management Agreement (excluding the Termination Agreement).
Each of the Covanta Parties and the City Parties hereby waives and relinquishes
any rights, benefits and claims, known or unknown, actual or contingent, it may
have against the other Party under the Management Agreement (excluding the
Termination Agreement).
Furthermore, each of the Covanta Parties and the City Parties
acknowledges that it is familiar with Section 1542 of the Civil Code of the
State of California, which provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement
with the debtor."
Each of the Covanta Parties and the City Parties waives and
relinquishes any and all rights and benefits which it may have under, or which
may be conferred upon it by, the provisions of Section 1542 of the California
Civil Code, to the fullest extent that it may lawfully waive such rights or
benefits pertaining to the subject matter of this agreement.
Each of the parties hereto shall execute from time to time any other
agreements or documents as may be necessary to give effect to this Release. All
terms of this Release shall necessarily also apply to any and all of the Covanta
Parties' and the City's officials (whether elected or appointed), directors,
employees, and agents and their respective successors and assigns.
IN WITNESS WHEREOF, the Covanta Parties and the City Parties have
caused this Release to be executed on their behalf by their officers thereunto
duly authorized, as of the date first above written.
COVANTA ENERGY CORPORATION CITY OF ANAHEIM, CALIFORNIA
By: By:
----------------------------------- -----------------------------
Name: Name:
Title: Title:
Attest:
-------------------------
Name: Sheryll Schroeder
Title: City Clerk
Approved as to Form:
------------
Name: Jack L. White, Esq.
Title: City Attorney
OGDEN FACILITY MANAGEMENT ANAHEIM PUBLIC IMPROVEMENT
CORPORATION OF ANAHEIM CORPORATION
By: By:
----------------------------------- -----------------------------
Name: Name:
Title: Title
B-1
Schedule 1A
-----------
Transferred Assets
Equipment
1. All security cameras
2. Basketball goals
3. Currency counter
4. Fire alarm covers
5. Security clock
6. Radios
7. GTE customer network
8. Adjustable chrome racks
9. Contractor saws / blades
10. Roller hockey
11. All parking radios
12. All photocopiers
13. Vomitory curtains
14. Janitorial supplies
15. Cyber lights
16. All computer equipment and software licenses
Furniture and Fixtures
1. All stage curtains
2. All modular panel systems
3. All vomitory curtains
4. Tile for bathroom repairs
5. Television monitor
6. All televisions and cabinets
7. Credenza
8. Soccer offices
9. Partitions for soccer offices
10. All office furniture
11. All storage cabinets
Schedule 2.1
------------
Per se Rejected Contracts
1. Management Agreement.
2. Arena Concessions Agreement between OFM and Aramark Entertainment, Inc.
(f/k/a Ogden Entertainment, Inc.), dated April 1, 1993, as amended and
supplemented from time to time.
3. Booking Agreement between OFM and Nederlander Anaheim, Inc., dated
November 13, 2000.
4. Stage work contract between Hirsh Entertainment Group (a/k/a L.A. Stagecall)
and OFM, originally dated June 1, 1996, and as amended from time to time.
5. Personnel Services contract between Staff Pro Inc. and OFM, dated
November 30, 2001.
Schedule 2.3(a)-1
-----------------
Form of Pre-Closing Statement
Current Assets
---------------
Cash $ o
Consigned Tickets o
Accounts Receivable, net o
Prepaid Expenses o
Prepaid Disney Commissions o
Other Assets o
---
Total Current Assets $ o
Current Liabilities
--------------------
Accounts Payable (excluding all accounts payable that arose prior to April
1, 2002 but including the City Payable and posessory interest tax payable)
and Accrued Expenses $o
Unearned Ticket Revenue o
Unearned Premium Revenue o
Other Current Liabilities o
---
Total Current Liabilities $o
Schedule 2.3(a)-2
-----------------
Reference Balance Sheet
Unaudited
February
2003 Actual
-----------
Assets
- ------
Current Assets
Cash $ 9,432
Consigned Tickets 47
Accounts Receivable, net 1,757
Prepaid Expenses 186
Prepaid Disney Commissions 2,301
Other Assets 200
-------
Total Current Assets $13,923
Fixed Assets
Parking Lot Rights $ 2,827
Leasehold Improvements (net) 44
Furniture, Fixtures, and Equipment --
-------
Total Fixed Assets $ 2,871
-------
Total Assets $16,794
=======
Schedule 2.3(a)-2
-----------------
(Reference Balance Sheet - continued)
Unaudited
February
2003 Actual
-----------
Liabilities
Current Liabilities
Accounts Payable (excluding all
accounts payable that arose prior
to April 1, 2002 but including the
City Payable and posessory interest
tax payable) and Accrued Expenses $ 1,404
Due to Affiliates 5,311
Interest Payable 3,359
Finance Charges Payable 1,394
Working Capital Payable 2,547
Working Capital Interest Payable 18
Unearned Ticket Revenue 5,286
Unearned Premium Revenue 5,048
Other Current Liabilities 110
--------
Total Current Liabilities $ 24,477
Repairs and Maintenance Fund $ (186)
City Shortfall Account 7,500
Manager Shortfall Payable 23,215
City Shortfall - Parking Lot 1,926
Manager Shortfall - Parking Lot 1,926
LT Working Capital Interest Payable 2,084
--------
Long-Term Liabilities $ 36,465
Total Liabilities $ 60,942
Retained Earnings $(44,148)
--------
Total Liabilities and Retained Earnings $ 16,794
========
Schedule 2.3(c)
---------------
Form of Closing Statement
Current Assets
Cash $o
Consigned Tickets o
Accounts Receivable, net o
Prepaid Expenses o
Prepaid Disney Commissions o
Other Assets o
--
Total Current Assets $o
Current Liabilities
Accounts Payable (excluding all accounts payable that arose prior to
April 1, 2002 but including the City Payable and posessory interest tax
payable) and Accrued Expenses $o
Unearned Ticket Revenue o
Unearned Premium Revenue o
Other Current Liabilities o
--
Total Current Liabilities $o
Schedule 2.4(a)
---------------
Manager's Executory Contracts Eligible for Assignment
License Contracts:
Counter Party/Name of Contract Date of Execution Cure costs
1. City of Anaheim (County Sheriff Lot Sublicense Agreement) 14-Jun-03 $0.00
2. City of Anaheim (17-Acre Sublicense Agreement) 1993 $0.00
3. City of Anaheim (Amendment to Sublicense Agreement) 6-Jun-95 $0.00
4. Lewis R. & Judith E. Schmid (Katella Maintenance Yard Letter
Agreement) 1-May-95 $0.00
5. Lewis R. & Judith E. Schmid (Sub-Sublease Agreement) 1-May-95 $0.00
<Caption>
Operational Contracts:
Counter Party/Name of Contract Date of Execution Cure costs
1. GTE Customer Networks Inc. (now Verizon) 13-Nov-92 $0.00
2. GTE Customer Networks Inc. (now Verizon) 12-Dec-92 $0.00
3. Ticketmaster (and amendments) 24-Dec-92 $0.00
4. Mighty Ducks Agreement 24-Feb-93 $0.00
a. First Amendment to Letter Agreement 31-Mar-93
b. Letter Agreement re: Use of Complimentary Suites and
Club Seats 15-Jun-93
c. Standard Operating Procedures for Mighty Ducks Agreement
(with City of Anaheim Endorsement ) 7-Dec-93
d. Letter Agreement re: Bronze Club Seat Program 2-Jul-94
e. Letter Agreement re: Sports Pack Seats 29-Apr-99
f. Letter Agreement re: Sports Pack Seats 26-May-99
g. Letter Agreement re: Advertising/Sponsorship Issues 12 Jul-99
h. Letter Agreement re: The Cabana Group LLC 14 Aug- 01
i. Letter Agreement re: Licensing of Luxury Boxes 15-Oct-01
j. Letter Agreement re: Benchmark Standard (The Staples Center) 7-Mar-02
k. Letter Agreement re: Licensing of Luxury Boxes 10-Feb-03
l. Letter Agreement re: LED Purchase and Revenue Sharing 2-Jul-03
5. Consent, Traffic and Parking and Non-Disturbance and Attornment
Agreement (as amended) 26-Feb-93 $0.00
6. Dover Elevator Company 1-Jun-94 $0.00
7. South Shore Building Services Inc 24-Apr-97 $0.00
8. Loomis, Fargo & Co 1-Nov-97 $0.00
9. Standard American Sweeping 1-Aug-98 $0.00
10. AT&T 20-Aug-98 $0.00
11. City of Anaheim (Douglass St. Guard Railing Encroachment Agreement) 1-Oct-98 $0.00
12. National Mobile Television 1-Oct-98 $0.00
13. Non-Disturbance and Attornment Agreement (LILO) 6-Jan-99 $0.00
14. JMG Security 19-Feb-99 $0.00
15. Radical Entertainment 6-Apr-99 $0.00
16. IKON Solutions 22-May-99 $0.00
17. Adelphia Cable (cf. Sponsorship Agreement) 31-Aug-99 $0.00
18. PCS Internet Inc 1-Oct-00 $0.00
19. Ford Motor Credit Corp (vehicle lease) 20-Nov-00 $0.00
20. Electronic Arts 4-Apr-01 $0.00
21. ArenaNetwork 6-Apr-01 $0.00
22. Automobile Club of Southern California 1-Aug-01 $0.00
23. Sony Computer Entertainment 1-Aug-01 $0.00
24. Mike Milidonis 27-Aug-01 $0.00
25. Air Conditioning Automation 1-Sep-01 $0.00
</Table>
Schedule 2.4(a)
---------------
(Manager's Executory Contracts Eligible for Assignment - continued)
<Table>
<Caption>
Event Contracts:
Counter Party/Name of Contract Date of Execution Cure Costs
1. Irvin Feld and Kenneth Feld Productions as amended
(Ringling Bros. Circus) [under renegotiation] 4-Jun-93 $0.00
2. Ringling Bros.- Barnum & Bailey Combined Shows Inc.-Lease Agreement,
as amended. (Disney on Ice) 29-Nov-93 $0.00
3. Ringling Bros.- Barnum & Bailey Combined Shows Inc.-Lease Agreement,
as amended. (Disney on Ice) 7-Feb-00 $0.00
<Caption>
Sponsorship Contracts:
Counter Party/Name of Contract Date of Execution Cure costs
1. Ticket Master with Amendments (cf. Operation Contracts) 24-Dec-92 $0.00
2. Adelphia Cable Sponsorship (cf. Operational Contracts) 31-Aug-99 $0.00
3. J&J Snack Foods 1-Mar-01 $0.00
<Caption>
Seat Agreements:
Counter Party/Name of Contract Date of Execution Cure costs
1. Anaheim Hilton & Towers (Seat Agreement) 1-Jun-99 $0.00
2. Dr. Richard Fukumoto (Seat Agreement) 1-Jun-99 $0.00
3. Fortifiber Corporation (Seat Agreement) 1-Jun-99 $0.00
4. Joe's Garage (Seat Agreement) 1-Jun-99 $0.00
5. Kihong Kwon (Seat Agreement) 1-Jun-99 $0.00
6. L.E. Duncan (Seat Agreement) 1-Jun-99 $0.00
7. Osterkamp Trucking (Seat Agreement) 1-Jun-99 $0.00
8. Platinum Capital Group (Seat Agreement) 1-Jun-99 $0.00
9. Stanwall Corp (Seat Agreement) 1-Jun-99 $0.00
10. Turelk Inc (Seat Agreement) 1-Jun-99 $0.00
11. Revenue Enhancement Group (Seat Agreement) 16-Jun-99 $0.00
12. John Oden/Mike Steger (Seat Agreement) 1-Jul-99 $0.00
13. Gabriel Container Co (Seat Agreement) 1-Aug-99 $0.00
14. Adelphia (Part of sponsorship agreement) 31-Aug-99 $0.00
15. Tom's Truck Center (Seat Agreement) 31-Aug-99 $0.00
16. Word & Brown (Seat Agreement) 1-Jan-00 $0.00
17. Hanson Aggregates (Seat Agreement) 16-Jun-00 $0.00
18. Anaheim Marriott (Seat Agreement) 19-Jun-00 $0.00
19. Ed Ruzak & Assoc. (Seat Agreement) 19-Jun-00 $0.00
20. Ivan Turpin, MD 19-Jun-00 $0.00
21. Shugart (Seat Agreement) 19-Jun-00 $0.00
22. Walter Froemke (Seat Agreement) 19-Jun-00 $0.00
23. Jax Market (Seat Agreement) 19-Jun-00 $0.00
24. American Bolt (Seat Agreement) 19-Jul-00 $0.00
25. Stainless Steel Fabricators (Seat Agreement) 20-Jul-00 $0.00
26. Sully Miller (Seat Agreement) 1-Aug-00 $0.00
27. Air Control Systems (Seat Agreement) 12-Sep-00 $0.00
28. Robert Mondavi Winery (Seat Agreement) 1-Oct-00 $0.00
29. Part of AD Coca-Cola (Seat Agreement) 23-Oct-00 $0.00
30. Gavina & Sons (Seat Agreement) 7-Nov-00 $0.00
31. Clement Calvillo (Seat Agreement) 1-Jan-01 $0.00
32. Kelloggs Company (Seat Agreement) 4-Apr-01 $0.00
33. Universal Alloy Corporation (Seat Agreement) 16-Jun-01 $0.00
34. Bill Podlich (Seat Agreement) 19-Jun-01 $0.00
35. Mark Morena (Seat Agreement) 19-Jun-01 $0.00
36. Patrick Burns (Seat Agreement) 19-Jun-01 $0.00
37. Southern Wine & Spirits (Seat Agreement) 19-Jun-01 $0.00
38. Spicers Paper Company (Seat Agreement) 19-Jun-01 $0.00
39. Universal Health Services (Seat Agreement) 19-Jun-01 $0.00
40. V and M Restoration Inc. (Seat Agreement) 19-Jun-01 $0.00
41. Elma Payton (Seat Agreement) 1-Jul-01 $0.00
42. College Hospital Costa Mesa (Seat Agreement) 1-Jul-01 $0.00
43. Rick Gaulden (Seat Agreement) 1-Jul-01 $0.00
44. Ringler Associates (Seat Agreement) 1-Jul-01 $0.00
45. St. Johns Knits Inc (Seat Agreement) 1-Jul-01 $0.00
46. The Traut & Aitken Law Firm (Seat Agreement) 1-Jul-01 $0.00
47. Trilogy Financial Services Inc (Seat Agreement) 2-Jul-01 $0.00
48. Southern California Gas Co (Seat Agreement) 16-Jul-01 $0.00
49. Alco Magazine Dist (Seat Agreement) 1-Aug-01 $0.00
50. Mission Foods (Seat Agreement) 1-Aug-01 $0.00
51. Montebello Container Co (Seat Agreement) 1-Aug-01 $0.00
52. Pasternack Enterprises (Seat Agreement) 1-Aug-01 $0.00
53. Boeing Company (Seat Agreement) 1-Sep-01 $0.00
54. Chicago Title Company (Seat Agreement) 1-Sep-01 $0.00
55. Weyerhaeuser (Seat Agreement) 1-Sep-01 $0.00
56. Part of AD Anheuser-Busch, Inc (Seat Agreement) 1-Oct-01 $0.00
57. Jim Hicks (Seat Agreement) 1-Oct-01 $0.00
58. Michaelson Connor & Bouling (Seat Agreement) 1-Nov-01 $0.00
59. Advantage Sales & Marketing (Seat Agreement) 1-Jan-02 $0.00
60. Manheim Auctions (Seat Agreement) 1-Jan-02 $0.00
61. San Diego Erosion Control (Seat Agreement) 1-Jan-02 $0.00
62. TruGreen LandCare (Seat Agreement) 1-Jan-02 $0.00
63. Beech Street Corp. (Seat Agreement) 28-Jan-02 $0.00
64. Frize Corporation (Seat Agreement) 1-Mar-02 $0.00
65. Kaiser Permanente (Seat Agreement) 1-Mar-02 $0.00
</Table>
Schedule 2.4(a)
---------------
(Manager's Executory Contracts Eligible for Assignment - continued)
<Table>
<Caption>
Suite Agreements:
Counter Party/Name of Contract Date of Execution Cure costs
66. Arrowhead (Part of sponsorship agreement) 23-Sep-96 $0.00
67. William Pochirowski (Suite Agreement) 24-Apr-97 $0.00
68. Irvine Medical (Suite Agreement) 1-Aug-98 $0.00
69. Pacific Care (Suite Agreement) 16-Jun-99 $0.00
70. Remedytemp, Inc. (Suite Agreement) 16-Jun-99 $0.00
71. Beckman Coulter (Suite Agreement) 19-Jun-99 $0.00
72. Dr. Michael Cornfield, DPM, Linda Bauermeister,
Stephanie Kurz (Suite Agreement) 1-Aug-99 $0.00
73. Gordon Automotive Group (Suite Agreement) 22-Mar-00 $0.00
74. Alan Jarrick, Jon Feder, Alliance Imaging,
Robert Benson (Suite Agreement) 22-May-00 $0.00
75. IMPAC Funding Corporation (Suite Agreement) 1-Jun-00 $0.00
76. Nederlander (Suite Agreement) 5-Jun-00 $0.00
77. E.T. Horn Company (Suite Agreement) 16-Jun-00 $0.00
78. T. Randall Bryan (Suite Agreement) 19-Jun-00 $0.00
79. Adams Steel and Kinsbursky Brothers (Suite Agreement) 29-Jul-00 $0.00
80. FCB Southern California, Outdoor Dimensions, American Racing,
Glenn Miller Films, New Homes Magazine, DGWB Advertising,
Liberty Capital Management (Suite Agreement) 1-Aug-00 $0.00
81. Del Taco (Suite Agreement) 1-Sep-00 $0.00
82. The Heritage Escrow Company (Suite Agreement) 13-Nov-00 $0.00
83. Emery, Inc (Suite Agreement) 20-Nov-00 $0.00
84. Tarsadia (Suite Agreement) 15-Mar-01 $0.00
85. Marriott Vacation Club International (Suite Agreement) 1-Apr-01 $0.00
86. Onyx Acceptance Corporation (Suite Agreement) 1-Apr-01 $0.00
87. County Financial Services (Suite Agreement) 16-Jun-01 $0.00
88. Kwikset (Suite Agreement) 16-Jun-01 $0.00
89. Golden State Foods (Suite Agreement) 17-Jun-01 $0.00
90. Fisher Printing, Inc. and Smurfit Newsprint (Suite Agreement) 18-Jun-01 $0.00
91. Perricone Insurance (Suite Agreement) 19-Jun-01 $0.00
92. People's Choice Home Loan (Suite Agreement) 6-Jul-01 $0.00
93. Straub Distribution Company (Suite Agreement) 1-Aug-01 $0.00
1. Ganis Credit Corporation (Suite Agreement) 1-Sep-01 $0.00
94. Toshiba America Information Systems, Inc (Suite Agreement) 1-Oct-01 $0.00
95. UPS (Part of sponsorship) 1-Oct-01 $0.00
96. Class Leasing (Suite Agreement) 1-Nov-01 $0.00
97. Ameriquest Mortgage Company (Suite Agreement) 1-Mar-02 $0.00
98. City of Anaheim (Suite Agreement) N/A $0.00
99. City of Anaheim (Suite Agreement) N/A $0.00
100. Ogden Facility Management (Suite Agreement) N/A $0.00
</Table>
* - OFM not party to contract.
Mighty Ducks Hockey Club, Anaheim
Sports, Inc., or Ogden Entertainment
Services, Inc. is signatory.
Schedule 2.4(c)
---------------
Post-Petition Ordinary Course Executory Contracts
<Caption>
Operational Contracts:
Counter Party/Name of Contract Date of Execution
1. KCAL (Fight Night) 26-Feb-02
2. LA Times (cf. Sponsorship contract) 17-Mar-03
3. XBOX (Microsoft) 14-Nov-02
4. Event Medical Services 21-Jan-03
5. Orange County Register Advertising Dollar Volume Contract 30-Jan-03
6. Gerard Sports Marketing, LLC 1-Mar-03
7. DBS Photography Inc 1-Apr-03
8. KCAL (Fight Night) - extends previous contract 28-Jul-02
9. Moreno Valley Lawn Maintenance 10-Jun-03
10. SBC 3-Oct-03
<Caption>
Miscellaneous
Counter Party/Name of Contract Date of Execution
1. Pacific Insurance Company, Ltd. (Earth Movement and Flood Insurance,
Policy # ZG 0024108) 8-Oct-03
2. ACE American Insurance Company (Workers Compensation Insurance,
General Liability Insurance, Auto Insurance, Binder # 10102003) 20-Oct-03
3. Zurich North America (Property Damage and Business Income Insurance)
(Policy # ERP 9376595-00 20-Oct-03
4. Westchester Surplus Lines Insurance Co. (Earth Movement and Flood Insurance,
Policy # I2 06 53 70 A) 20-Oct-03
<Caption>
Event Contracts:
Counter Party/Name of Contract Date of Execution
1. Tom Collins Enterprises Inc 1-Jul-02
2. John Wooden Classic 10-Dec-02
3. Orange County Register, Event/venue agreement 1-Mar-03
4. World Wrestling Entertainment 5-Sep-03
<Caption>
Sponsorship Contracts:
Counter Party/Name of Contract Date of Execution
1. K&D Graphics 1-Dec-02
2. LA Times (cf. Operational contract) 17-Mar-03
3. Moreno Valley Lawn Maintenance (cf. Operational Contract) 10-Jun-03
4. Burke Williams Day Spa 27-Jun-03
5. HOOTERS Restaurant (Fight Night) 4-Aug-03
6. Freedom Orange County Information 1-Oct-03
</Table>
Schedule 2.4(c)
---------------
(Post-Petition Ordinary Course Executory Contracts - continued)
<Table>
<Caption>
Seat Agreements:
Counter Party/Name of Contract Date of Execution
1. James & Leslie Davidson (Seat Agreement) 1-May-02
2. Mike Thompson RV (Seat Agreement) 1-May-02
3. Pam Doodridge (Seat Agreement) 1-May-02
4. Bordier's Nursery (Seat Agreement) 1-Jun-02
5. Dr. Allan Sheridan (Seat Agreement) 5-Jun-02
6. Apria Health Care (Seat Agreement) 19-Jun-02
7. B.C. I. Framing & Drywall (Seat Agreement) 19-Jun-02
8. Claim Jumper Restaurant (Seat Agreement) 19-Jun-02
9. D. M. Steele (Seat Agreement) 19-Jun-02
10. Johnson-Peltier (Seat Agreement) 19-Jun-02
11. Lyle Parks Jr (Seat Agreement) 19-Jun-02
12. Ram Mudiyam (Seat Agreement) 19-Jun-02
13. VIP Transport (Seat Agreement) 19-Jun-02
14. Williams Medical Company (Seat Agreement) 19-Jun-02
15. Gary Hendricks/Intertate Specialty (Seat Agreement) 1-Jul-02
16. Harbor Distributing LLC (Seat Agreement) 1-Jul-02
17. Information Technology RES (Seat Agreement) 1-Jul-02
18. Dow Diversified Inc (Seat Agreement) 2-Jul-02
19. Kenwood USA Corp (Seat Agreement) 2-Jul-02
20. Dio Ross Publications (Seat Agreement) 2-Jul-02
21. Sunstone Systems Int'ls (Seat Agreement) 19-Jul-02
22. CAM Steel Company Inc (Seat Agreement) 1-Aug-02
23. Hawaiian Air Corp (Seat Agreement) 1-Aug-02
24. Heritage Foods (Seat Agreement) 1-Aug-02
25. Jeffrey Elumba (Seat Agreement) 1-Aug-02
26. Ruth Kane (Seat Agreement) 1-Aug-02
27. Trans Marine Navigation (Seat Agreement) 1-Aug-02
28. Chapman Western Medical Center SA (Seat Agreement) 1-Aug-02
29. Western Tube & Conduit (Seat Agreement) 1-Aug-02
30. John A. McLuckey (Seat Agreement) 1-Aug-02
31. FT Valley Regional Hospital (Seat Agreement) 15-Aug-02
32. Aire Masters Air Conditioning (Seat Agreement) 1-Sep-02
33. Disneyland Resort (Seat Agreement) 1-Sep-02
34. Eastwood Insurance (Seat Agreement) 1-Sep-02
35. Michael Lisa Trucking Inc. (Seat Agreement) 16-Sep-02
36. Full Spectrum Inc. (Seat Agreement) 17-Sep-02
37. Quality Container Company (Seat Agreement) 17-Sep-02
38. Lance Capel (Seat Agreement) 1-Oct-02
39. Pacific World Corporation (Seat Agreement) 1-Oct-02
40. Richard Rodriguez & Warren Parchan (Seat Agreement) 1-Oct-02
41. Searing Industries (Seat Agreement) 1-Oct-02
42. Southern California Gas Co (Seat Agreement) 1-Oct-02
43. Superior Metal Shapes (Seat Agreement) 9-Oct-02
44. City National Bank (Seat Agreement) 1-Nov-02
45. Educational Consulting Service (Seat Agreement) 1-Nov-02
46. Hyosung (Seat Agreement) 1-Nov-02
47. Part of AD LG Mobile Phones (Seat Agreement) 22-Nov-02
48. Aetna US Healthcare (Seat Agreement) 1-Dec-02
49. Reliance Steel & Aluminum (Seat Agreement) 1-Jan-03
50. William Lyon Homes (Seat Agreement) 1-Jan-03
51. Gilead Sciences, Inc. (Seat Agreement) 1-Feb-03
52. Southern California Digital Systems (Seat Agreement) 1-Feb-03
53. LA Times (Part of sponsorship agreement) 17-Mar-03
54. KPMG (Seat Agreement) 1-May-03
55. Mitsubishi NEC (Seat Agreement) 1-May-03
56. Northrop Grumman (Seat Agreement) 1-May-03
57. Preferred Framing (Seat Agreement) 1-May-03
58. Chapel Funding Corporation (Seat Agreement) 31-May-03
59. Unilever (Seat Agreement) 19-Jun-03
60. Lloyd W. Holland (Seat Agreement) 1-Jul-03
61. Sasco (Seat Agreement) 1-Jul-03
62. Independent Capital Marketing (Seat Agreement) 2-Jul-03
63. Sares Regional Group (Seat Agreement) 16-Jul-03
64. Jeff Usher (Seat Agreement) 1-Aug-03
65. Miller Brewing Company (Seat Agreement) 13-Aug-03
66. Barron Harley (Seat Agreement) 1-Sep-03
67. Bill Hunt (Seat Agreement) 1-Sep-03
68. Fairchild Fasteners (Seat Agreement) 1-Sep-03
69. Pacific Transformer Corporation (Seat Agreement) 1-Sep-03
70. Transit Marketing Group (Seat Agreement) 1-Sep-03
71. SBC (Seat Agreement) 15-Sep-03
72. Amcor Sunclipse North America (Seat Agreement) 17-Sep-03
73. Pacific Care Dental & Vision (Seat Agreement) 22-Sep-03
74. GES Exposition Services (Seat Agreement) 1-Oct-03
75. Kevin Crampton (Seat Agreement) 1-Oct-03
76. LA Chemical / Shepard Bros. (Seat Agreement) 1-Oct-03
77. ND Industries (Seat Agreement) 1-Oct-03
78. Orange County Optometric Group (Seat Agreement) 1-Oct-03
79. John O'Neil (Seat Agreement) 1-Nov-03
80. New Homes Magazine (Seat Agreement) 1-Nov-03
81. ABC Radio Group (Seat Agreement) Date N/A
82. Bank of the West (Seat Agreement) Date N/A
83. CDX Communications (Seat Agreement) Date N/A
84. Don Pickler (Seat Agreement) Date N/A
85. E-Systems Design GST (Seat Agreement) Date N/A
86. Hugo Neu-Proler (Seat Agreement) Date N/A
87. Independent Capital Management (Seat Agreement) Date N/A
88. Investors Business Daily (Seat Agreement) Date N/A
89. James E. Hudson (Seat Agreement) Date N/A
90. Jim Steffens (Seat Agreement) Date N/A
91. Lithographix (Seat Agreement) Date N/A
92. Media Networks (Seat Agreement) Date N/A
93. Miro Knezvic (Seat Agreement) Date N/A
94. OC Business Journal Date N/A
95. Paul Folino / Kathy Cole (Seat Agreement) Date N/A
96. Scher Tire (Seat Agreement) Date N/A
97. The Business Press (Seat Agreement) Date N/A
98. Toyota-Davielson Advertising (Seat Agreement) Date N/A
99. Trend Offset Printing (Seat Agreement) Date N/A
</Table>
Schedule 2.4(c)
---------------
(Post-Petition Ordinary Course Executory Contracts - continued)
<Table>
<Caption>
Suite Agreements:
Counter Party/Name of Contract Date of Execution
1. Toshiba America Business Solutions (Suite Agreement) 5-Apr-02
2. First American Title (Suite Agreement) 1-May-02
3. Talbot Insurance & Financial Services (Suite Agreement) 7-Jun-02
4. F & A Cheese Company (Suite Agreement) 1-Jul-02
5. John Ginger Masonry, Inc. (Suite Agreement) 1-Aug-02
6. Wells Fargo Bank, N. A. (Suite Agreement) 7-Aug-02
7. C R & R (Suite Agreement) 1-Sep-02
8. Manheim Auctions (Suite Agreement) 1-Sep-02
9. William Gross (Suite Agreement) 1-Sep-02
10. World Variety Produce Inc & Harold & Wendy Rothman (Suite Agreement) 1-Sep-02
11. Cablerep, Inc (Suite Agreement) 1-Oct-02
12. National Title (Suite Agreement) 1-Oct-02
13. Marc Spirizzi (Suite Agreement) 8-Nov-02
14. K & D Graphics (Part of sponsorship agreement) 1-Dec-02
15. Brown-Forman Spirits (Suite Agreement) 1-Mar-03
16. Price Communications (Suite Agreement) 20-Apr-03
17. Model Finance (Suite Agreement) 1-May-03
18. PC Mall Services (Suite Agreement) 8-May-03
19. WFS Financial (Suite Agreement) 27-Mar-03
20. Douglas Nissan of Huntington Beach (Suite Agreement) 14-May-03
21. Lobel, Friedman and Reisner (Suite Agreement) 1-Jun-03
22. Fun at Arena (Suite Agreement) 15-Jun-03
23. Vince Taormina (Suite Agreement) 15-Jun-03
24. LSI (Suite Agreement) 1-Aug-03
25. The Concierge Advantage (Suite Agreement) 1-Oct-03
26. Brad Bradley (Suite Agreement) Date N/A
27. David Wilson (Suite Agreement) Date N/A
28. John Hartley (Suite Agreement) Date N/A
29. KCAL TV (part of contract) (Suite Agreement) Date N/A
30. Kim Megonigal (Suite Agreement) Date N/A
31. Marc Kaplan (Suite Agreement) Date N/A
32. SBC (Suite Agreement) Date N/A
33. Taormina Industries (Suite Agreement) Date N/A
34. Ticketmaster (Suite Agreement) Date N/A
</Table>
* - OFM not party to contract.
Mighty Ducks Hockey Club, Anaheim
Sports, Inc., or Ogden Entertainment
Services, Inc. is signatory.
Schedule 2.7
------------
Excluded Liabilities
None.
Schedule 3.1(b)
---------------
Pre-Closing Regulatory Consents and Filings
None.
Schedule 3.2(d)
---------------
Leasehold Restructuring
1. Senior Debt: The existing COPs (approximately $115 MM outstanding principal
amount) will be repaid and replaced by new bonds (the "Refunding Bonds") in
a principal amount not to exceed $45 MM.
2. UBC: The City will grant a lien on net Pond revenues as security for the
City's obligations under the Operative Documents in replacement of the
requirement for the Equity Letter of Credit and in exchange for the
existing undrawn Equity Letter of Credit.
3. AIG: A replacement Acceptable Debt Letter of Credit to be issued by West LB
will be provided to AIG in the stated amount from time-to-time specified in
Schedule IV to the Participation Agreement (currently $2,072,193.54 and
declining annually thereafter) in exchange for the undrawn existing Debt
Letter of Credit. No letter of credit fee will be payable in respect of the
replacement Debt Letter of Credit. The replacement Debt Letter of Credit
will automatically renew annually until January 2, 2019, unless the then
applicable stated amount has been paid in full. A failure to renew will
constitute a drawing event under the replacement Debt Letter of Credit.
4. Bank of America: Bank of America will release its claims against the City
in connection with the COPs swap arrangements.
5. Priority of Net Pond Revenues: A lien junior to the lien of the equity
investor (UBC) on net Pond revenues will be pledged as security for the
other payment obligations owed to AIG; further subordinate liens support
the Refunding Bonds and then the reimbursement obligations of the City and
the City Designee arising from issuance of the replacement Debt Letter of
Credit.
6. Closing Schedule: City Council approval is anticipated on or about November
4, 2003. Definitive documentation will be executed shortly thereafter.
Closing is expected to occur on or about December 17, 2003.
7. Leasehold Documentation A new "Omnibus Agreement" among the parties to the
Leasehold Transaction reflects the restructuring referenced above, and new
agreements will be substituted for the Management Agreement and the City
and Manager Pledge Agreements. The participation of Ogden Facility
Management Corporation of Anaheim ("OFM") and Covanta Energy Corporation
will be terminated and the new manager will be substituted therefor. OFM
and Covanta will be released from all of their obligations contained in the
Operative Documents. The City's obligations under the Operative Documents
will remain limited to net Pond revenue.
Schedule 3.2(i)
---------------
Agreements Requiring CSFB's Release of the City
COPS Financing Documents (as such documents are defined in the Leasehold
Documents):
1. Management Agreement
2. Guaranty Agreement
3. Consent to Assignment
4. Pledge & Security Agreement (of OFM as Pledgor)
5. Pledge & Security Agreement (of City as Pledgor)
6. Bank Agreement
7. Site and Facility Lease
8. Lease Agreement
9. City Assignment Agreement
10. Corporation Assignment Agreement
11. Non-Disturbance and Attornment Agreement
Schedule 3.3(b)
---------------
Agreements Requiring the Leasehold Participants' Release of the Manager
Leasehold Documents:
1. Participation Agreement
2. Ogden Agreement
3. Guaranty Agreement (Ogden Guaranty)
4. Debt Letter of Credit and Reimbursement Agreement
5. Equity Letter of Credit and Reimbursement Agreement
6. Manager Debt Pledge Agreement
7. Manager Equity Pledge Agreement
Schedule 5.4
------------
Consents to Transfer of Designated Contracts
None.
Schedule 7.9(c)
---------------
Terminated Employees
None.