HomeMy WebLinkAboutGolden State Concessions and Catering, Storm LLC, Impact Stadium LLC Assignment Assumption Attornment & Nondisturbance Agreement & Amendment No. 1 to Agreement 01-01-2004 7-e /`-"V l
ASSIGNMENT,ASSUMPTION
ATTORNMENT AND NONDISTURBANCE AGREEMENT
This ASSIGNMENT, ASSUMPTION, ATTORNMENT AND
NONDISTURBANCE AGREEMENT (this "Agreement"), dated as of July 1, 2004 for
identification purposes, is entered into by and between the REDEVELOPMENT AGENCY OF
THE CITY OF LAKE ELSINORE, a public body corporate politic (the "Agency"), GOLDEN
STATE CONCESSIONS AND CATERING, INC., a California corporation ("Golden State" or
"Concessionaire"), STORM LLC, a California limited liability company ("Storm") and
IMPACT STADIUM LLC, a California limited liability company ("Impact" or "Master
Tenant") and is made with reference to the following recitals. Storm and Golden State are
sometimes collectively referred to herein as the "Storm Entities." If the Master Lease is not
approved by the Agency on or before October 1, 2004 and entered into by the Agency and Master
Tenant, along with this Agreement,then this Agreement shall be null and void and of no force and
effect.
RECITALS
The following Recitals are a substantive part of this Agreement:
A. The Agency is the owner of that certain real property located within the Rancho
Laguna Redevelopment Project Area III of the City of Lake Elsinore, County of Riverside, State
of California (the "Land"). A number of improvements are located on the Land, including a
professional baseball field, stadium and ancillary parking and related facilities commonly known
as the "Lake Elsinore Diamond" (collectively, the "Stadium") and depicted on the Site Map
attached hereto as Exhibit "A" and incorporated herein by reference. The Stadium and the Land
shall be referred to collectively herein as the Site.
B. The Agency and the Storm have entered into that certain License Agreement dated
March 15, 2001 (the "License Agreement') pursuant to which the Storm has agreed to license the
use of the Site for recreation, sporting and entertainment uses and events, and for other purposes
as more fully described therein. Concurrently, therewith, Storm and Agency entered into that
certain Stadium Field and Maintenance Agreement ("Maintenance Agreement') outlining the
relative rights and obligations of the parties with respect to the maintenance and upkeep of the
Stadium during the term of the License Agreement.
C. Pursuant to that certain Membership Interest Purchase Agreement dated
May 16, 2001, as amended, Lake Elsinore Storm LP, a California limited partnership ("Storm
Partnership") acquired all right, title and interest in Storm, having acquired all rights and assumed
all obligations of Storm under the License Agreement and Maintenance Agreement, such
transaction having been approved by the California League and the National Association of
Professional Baseball Leagues.
D. The owners of Storm thereafter formed Concessionaire for the purpose of
CONTRACT/AGREEMENT # 1734
providing for the concessions operations at the Stadium for Storm Games, Other Storm Events
and Other Stadium Events. In furtherance thereof, on January 30, 2002, Concessionaire and
Agency entered into that certain Concession License Agreement for the Stadium, granting
Concessionaire the exclusive concession operations license for Storm Games, Other Storm Events
and Other Stadium Events, as more particularly described in the Concession Agreement, as
amended by that certain First Amendment to Concession License Agreement dated November 1,
2002 ("Concession Agreement"). The License Agreement, the Maintenance Agreement and the
Concession Agreement are sometimes collectively referred to herein as the "Stadium
Agreements." Capitalized terms used herein which are not otherwise defined herein shall have
the meaning ascribed to them in the Stadium Agreements.
E. Concurrently herewith Agency and Master Tenant are entering into that certain
Stadium Lease and Option to Purchase Agreement pursuant to which Agency has leased the
Stadium to the Master Tenant and has granted an option for the sale of the Stadium to Master
Tenant under certain conditions ("Master Lease") subject to the rights and obligations of the
Agency under the Stadium Agreements. Master Tenant intends to plan and hold approximately
40 additional entertainment and other events (defined in the Concession Agreement as "Other
Stadium Events" upon entering into the Master Lease for the Stadium.
F. Also concurrently herewith, Master Tenant and the Storm Entities are entering into
certain amendments to the Stadium Agreements relating to concessions, use, operations and
maintenance of the Stadium during the term of the Master Lease in contemplation of Master
Tenants and Storm combined activities at the Stadium during the term of the Master Lease and
thereafter, in the event Master Tenant exercises the option to purchase the Stadium and acquires
the Stadium in accordance with and subject to the terms of the Master Lease ("Stadium
Amendments"). Except as provided herein, the Stadium Amendments shall not modify, amend or
alter the relative rights and obligations of the Storm Entities and Agency under the Stadium
Agreements, in the event the Master Lease is terminated without Master Tenant having acquired
the Stadium.
F. The parties desire to enter into this Agreement to provide for their relative rights
and obligations relating to the Master Lease and the Stadium Agreements during the term of the
Master Lease, if the Master Lease is terminated, and if the Stadium is acquired by Master Tenant.
NOW THEREFORE, in consideration of the terms contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties do hereby agree as follows:
1. Assignment and Assumption. Agency hereby assigns to Master Tenant all of its
rights under the terms of the Stadium Agreements for so long as the Master Lease is in effect and
thereafter, if Master Tenant acquires the Stadium. Master Tenant hereby assumes all of Agency's
obligations under the Stadium Agreements and agrees to perform and be bound thereby in the
Agency's place and stead for the term thereof and accepts the Master Lease (and upon acquiring
the Stadium) and the Stadium subject to the terms of the Stadium Agreements.
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2. Attornment. During the term of the Master Lease until such time as the Storm
Entities have received written notice from Agency that the Master Lease has been terminated, and
if Master Tenant or its successor has acquired the Stadium, the Storm Entities shall attorn to
Master Tenant or such party that acquires Master Tenant's interest in the Stadium, all of its
performances and obligations under the terms of the Stadium Agreements and the Storm Entities
shall recognize Master Tenant in the place and stead of the Agency under the Stadium
Agreements. Agency hereby acknowledges and agrees to such attornment by the Storm Entities
to Master Tenant as provided herein.
3. Subordination. The Master Lease is subject to and subordinate to the Stadium
Agreements, as amended during the term of the Master Lease, by the Stadium Amendments. In
the event that Master Tenant (or its successors and assigns) acquires the Stadium, it shall take title
subject to the terms, provisions and obligations of the Stadium Agreements and the rights and
benefits of the Stadium Agreements, as amended by the Stadium Amendments, shall inure to the
benefit of Master Tenant and its successors or assigns as provided herein.
4. Nondisturbance. So long as the Stadium Agreement(s) have not been otherwise
terminated in accordance with their terms, the Stadium Agreements and all of the Storm Entities'
rights and benefits under the Stadium Agreements (including, without limitation, any Extension
Term), shall not be affected by the execution of the Master Lease or the sale and transfer of the
Stadium to Master Tenant (or its successor in interest) and the Stadium Agreements shall remain
in full force and effect. Neither the Stadium Agreements, nor the Storm Entities' rights
thereunder will be disturbed by Master Tenant or any successor thereof during the term of the
Stadium Agreements or any extensions thereof.
5. Effect of Stadium Amendments. As between Master Tenant and the Storm
Entities, the Stadium Agreements are hereby modified and amended in accordance with the terms
and provisions of the Stadium Amendments for which the Agency shall have no liability or
concern therefor, except as expressly set forth herein.
6. Agency Continued Liability. During the term of the Master Lease, the Agency
shall remain liable to the Storm Entities for a default in performance by Master Tenant under the
obligations assumed by Master Tenant as provided herein, but the Agency shall have no liability
to the Storm Entities relating to any default of any of the terms or provisions of the Stadium
Amendments. However, in the event of a default of the obligations assumed by Master Tenant
under the Stadium Agreements, the Storm Entities shall look to Master Tenant first to cure thereof
and shall otherwise comply with the notice provisions set forth herein with respect to an event of
default. The execution by Master Tenant and the Agency of the Master Lease shall not be
deemed to be a "transfer" under which the provisions of Section 14.2 of the License Agreement
shall apply; however, the exercise of the option and the closing of the sale of the Stadium as
contemplated in the Master Lease shall be deemed to be a "transfer" event under which the
provisions of Section 14.2 shall apply. After Master Tenant acquires the Stadium, the Agency's
liability upon such transfer shall be as set forth in Section 14.2 of the License Agreement.
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7. Default Under Stadium Agreements; Opportunity to Cure. During the term of the
Master Lease, in the event of a default by the Master Tenant of its assumed obligations under any
of the Stadium Agreements, the Storm shall provide written notice of such event to Agency
simultaneously with its notice to Master Tenant in accordance with the notice and cure provisions
set forth in such Stadium Agreement. If Master Tenant fails to cure such event of default within
the time and manner set forth in the applicable Stadium Agreement, then Storm shall afford
Agency the right to cure such default within an additional period of time equal to the period of
time allotted for cure under the applicable Stadium Agreement for such event of default.
8. Default Under Master Lease. Master Tenant agrees that notice from Agency to the
Storm Entities shall have the same effect under this Agreement as notice from Master Tenant to
the Storm Entities under the terms of the Stadium Agreements from the Master Tenant. The
Storm Entities agree to be bound by such notice notwithstanding the existence or nonexistence of
a default under the Master Lease, provided that Agency shall indemnify, hold harmless and
release the Storm Entities from any liability under the Stadium Agreements to the extent the
Storm Entities' comply with Agency's notice. By executing this Agreement, Master Tenant
agrees that the Storm Entities shall be held harmless and released from any liability under the
Stadium Agreements to the extent the Storm Entities comply with Agency's notice.
9. Survival of Stadium Amendments. If the Master Lease is terminated as provided
herein, and the rights, benefits and obligations under the Stadium Agreements revert back to the
Agency, then the Stadium Amendments shall be of no force or effect upon such termination of the
Master Lease. The foregoing notwithstanding, the provisions contained in the Stadium
Amendments relating to the Storm's relinquishment of "naming rights" and the corresponding
provisions for reduction of the Annual License Fee payable under the License Agreement shall
remain in full force and effect and be binding upon the Agency after the termination of the Master
Lease, for the remaining term of the Stadium Agreements and any extension options thereunder.
The applicable provisions of the Stadium Amendments relating thereto is attached hereto as
Addendum A and incorporated herein. In the event of termination of the Master Lease, if a
"naming" agreement has been entered into by the Master Tenant prior to the termination of the
Master Lease and by the terms of such naming agreement, the term of such naming sponsorship is
to continue beyond the term of the Master Lease, then all royalties or other revenue accruing to
Master Tenant under the terms of such naming agreement shall be the property of the Agency. If
a "naming" agreement has not been entered into by the Master Tenant or is not in existence as of
the date of termination of the Master Lease, then all "Naming Rights" for the Stadium shall be
vested in the Agency who shall be free to enter into a naming agreement (subject only to any
limitations imposed by the NA or Major League Baseball during the term of the Stadium
Agreements or so long as the Storm is governed by the rules of Professional Baseball and is
playing baseball in the Stadium) but the Storm shall be entitled to the reduction of the license fees
for the balance of the term (and any extension term) of the License Agreement as aforesaid. In
addition, the provision in the Stadium Amendment which extends the Initial Term and Extension
Term of the Stadium Agreements shall remain in effect. Such provision reads as follows: "The
Initial Term of the Stadium Agreements is hereby extended for another year such that the
"Expiration Date" shall be December 31, 2008. Thus, Storm Entities shall have the option to
extend the term of the Stadium Agreements for the Extension Term which shall expire on
December 31, 2013 upon notice to the Master Tenant on or before June 30, 2008."
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10. Further Assurances. The foregoing provisions shall be self operative.
However, the parties agree to execute and deliver to the other parry or parties, such other
instruments that are reasonably requested to further confirm the foregoing provisions.
11. Notice. Except in the case (if any) where this Agreement expressly
provides for an alternate form of communication, every notice, demand or other communication
permitted or required to be given hereunder (a "Notice") shall be in writing (whether or not
specified to be in other provisions of this Agreement) and shall be deemed delivered by receipted
courier service,: (a) if to Agency, to the Agency's address noted below, (b) if to Master Tenant,
to the Master Tenant's address noted below, and (c) if to any of the Storm Entities, to the Storm
Entities' address noted below. The parties may from time to time by at least ten business days'
prior notice to the other, change their respective address(es) for the receipt of future Notices. A
Notice shall only be deemed delivered and received (i) if delivered before 5:00 p.m. recipient's
local time, on the date of actual delivery or attempted delivery (as evidenced by receipt) and (ii)
otherwise, on the business day immediately following the date of actual or attempted delivery;
Agency:
The Redevelopment Agency of the City of Lake Elsinore
130 S. Main Street
Lake Elsinore
Attention: Executive Director
T: (909-) 674-3124
F: (909) 674-2392
Master Tenant:
Impact Stadium, LLC
42389 Winchester Rd. Suite B
Temecula, Ca 92590-4810
Attention: David W. Wakefield
T: (909)296-9225
F: (909 )296-5238
Storm Entities:
c/o Gary E. Jacobs
13974 Boquita Drive
Del Mar, CA 92014
T: (858) 481-2186
F: (858) 481-3792
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With a copy to:
Sherman& Lapidus LLP
750 B Street, Suite 2330
San Diego, CA 92101
Attn. Robert B. Lapidus
T: (619) 338-4932
F: (619) 231-8770
12. Successors and Assigns. Subject to the limitations on assignment and
transfer contained herein, the Master Lease, the Stadium Agreements or the Stadium
Amendments, this Agreement shall inure to the benefit of and be binding upon Master Tenant,
Agency and the Storm Entities and their respective successors and assigns.
13. Counterparts. This Agreement may be executed by the parties hereto in
any number of counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
14. Governing Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the state of California.
15. Authority. Each individual executing and delivering this Agreement on behalf of a
corporate party or other legal entity, hereby warrants and represents to the other parties that he or
she has been duly authorized and empowered to do so.
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, this Agreement has been entered into as of the date first above
written.
"Storm Entities"
GOLDEN STATE CONCESSIONS AND CATERING, INC.,
a California corp ration
By:
Its: rrs
Dated: 2004
STORM LLC, a California limited liability company
By: Lake Elsinore Storm LP,
A California limited partnership
Its: Sole Member (Merger with Storm LLC Pending)
By: GJJ Storm Inc.
Its: Genera artne
By:
Gary E. Jacob ,President
Dated: 7.1 I , 2004
AGENCY
REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE,
a puffic-b-o&Y corporateAmd politic
By: �.
irper rl
Dated: ,�5� (, . 2004
Attest: .4
Vic asad, Agency Secretary
Vicki Kasad
Approved As To Form:
Van Blarcom, Leibold,
Mcclentpri & Mann, P.C.
Agency/Co el
By:
Barbara Z d Leibold
7
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AMENDMENT NO. I TO ASSIGNMENT,ASSUMPTION,
ATTORNMENT AND NONDISTURBANCE AGREEMENT
This AMENDMENT NO. I TO ASSIGNMENT, ASSUMPTION,
ATTORNMENT AND NONDISTURBANCE AGREEMENT (this "Amendment"),
dated for identification purposes only as of July 1, 2004, is entered into by and between
the REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE, a public
body corporate and politic (the "Agency"), GOLDEN STATE CONCESSIONS AND
CATERING, INC., a California corporation ("Golden State"), STORM LLC, a
California limited liability company ("Storm") and IMPACT STADIUM LLC, a
California limited liability company ("Impact" or "Master Tenant") and is made with
reference to the recitals set forth below. Agency, Golden State, Storm and Impact are
hereinafter sometimes referred to individually as a "Party" and collectively as the
"Parties."
RECITALS
The following Recitals are a substantive part of this Agreement:
A. The Parties have previously entered into that certain Assignment,
Assumption, Attornment and Nondisturbance Agreement dated as of July 1, 2004 for
identification purposes (the "Agreement").
B. Capitalized Terms not defined herein shall have the meaning set forth in
the Agreement.
C. The Parties desire to amend the Agreement as set forth herein.
NOW THEREFORE, in consideration of the terms contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties do hereby agree to amend the Agreement as follows:
1, Covenants to Remain for the Benefit of Agency. Notwithstanding
Agency's assignment to and the assumption by Master Tenant of all of Agency's rights
under the terms of the Stadium Agreements as set forth in Section 1 of the Agreement,
Storm, Impact and Agency hereby agree that, with respect to the rights and obligations
set forth in the License Agreement:
a. Agency shall retain a right of entry as set forth in Section 3.6 of the
License Agreement;
b. All notices required by the License Agreement shall be given to both
Impact and Agency;
c. The indemnification obligations set forth in Sections 3.7 and 20 shall
run to the benefit of Agency during the term of the Master Lease and
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Amd No I to Assgnment,Assmption,Attonrment&Nondisturbance Agt Final
shall remain in effect subsequent to the expiration or termination of the
Master Lease for events occurring during the term of the License
Agreement and prior to the expiration or termination of the Master
Lease; and
d. During such time as both the Master Lease and the License Agreement
are in effect, (i) the insurance carrier referred to in Section 13.1 of the
License Agreement shall continue to waive all rights of subornation
against the Agency, the City, their officers, agents, employees and
volunteers for liabilities arising from activities performed by the
Storm; (ii) the Agency, the City, their elected and appointed officers,
agents, employees and volunteers shall continue to be covered as
additional insureds as set forth in Section 13.2 of the License
Agreement; (iii) Agency shall retain the approval and other rights set
forth in Section 13.3 of the License Agreement; and (iv) Storm shall
provide a copy of the certificates required under Section 13.4 to
Agency.
2. Effect of This Amendment. All of the provisions of the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, this Amendment has been entered into as of July 1,
2004.
GOLDEN STATE CONCESSIONS AND CATERING, INC.,
a California corporation
By:
Its:
STORM LLC,
a California limited liability company
By: Lake Elsinore Storm LP, a California limited partnership
Its: Sole Member(Merger with Storm LLC Pending)
By: GJJ Storm Inc.
Its: General Partner
By:
Gary E. J cobs, President
[SIGNATURE PAGE CONTINUES]
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Amd No 1 to Assgriment,Assmption,Attonrment&Nondisturbance Agt Final
REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE,
a pub l ody corpora an politic
By:
Chairperson
Attest:
Vicki Kasad, Agency Secretary
By:
Vicki Kasad
Approved As To Form:
Van Blarcom, Leibold,
McClendon&Mann, P.C.,
Agency Counsel
J r
By:
Barbara Ze' Leibold
IMPACT STADIUM LLC, a California 11 limited liability company
By: Dav o7er
L C
Its: Man
David W. Wake lei ,
"r-
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Amd No I to Assgnment,Assmption,Attonrment&Nondisturbance Agt Final