EXHIBIT 10.1
RESTRUCTURING AND SETTLEMENT AGREEMENT
THIS RESTRUCTURING AND SETTLEMENT AGREEMENT ("Agreement") is entered
into and effective as of May 30, 2001, by and among ALL-AMERICAN SPORTPARK,
LLC, a Nevada limited liability company ("AASP LLC"), SPORTPARK LAS VEGAS,
INC., a Nevada corporation ("SPLV"), THE ALL-AMERICAN GOLF CENTER, INC., a
Nevada corporation ("AAGC"), ALL-AMERICAN SPORTPARK, INC., a Nevada
corporation formerly known as Saint ▇▇▇▇▇▇▇ Golf Corporation ("AASP"), SPORTS
ENTERTAINMENT ENTERPRISE, INC., a Nevada corporation ("SPEN"), SPORTPARK
MANAGEMENT, INC., a Nevada corporation ("SPMI"), ▇▇▇▇ ▇▇▇▇▇▇ ("VB"), ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ("RSB"), BORETA ENTERPRISES, LTD., a Nevada limited liability company
("BEL"), URBAN LAND OF NEVADA, INC., a Nevada corporation ("Urban Land") and
URBAN INVESTMENTS LLC, a Nevada limited liability company ("UIL"). AASP LLC,
SPLV, AAGC, AASP, SPEN, SPMI, VB, RSB, BEI, Urban Land and UIL shall
hereinafter sometimes be referred to individually as a "Party" and
collectively as the "Parties."
Factual Background
A. Urban Land entered into a certain Lease Agreement dated June 13, 1997
(the "SportPark Lease") with SPLV pertaining to a certain parcel of 23.61
acres of land (the "SportPark Premises"). AASP LLC is the successor lessee
under the SportPark Lease under an Assignment and Assumption Agreement dated
September 16, 1998. A Memorandum of Lease regarding the SportPark Lease was
recorded in the Official Records of ▇▇▇▇▇ County, Nevada, on June 23, 1997, in
Book 970623 as Instrument No. 00042. AASP guaranteed the lessee's obligations
under the SportPark Lease.
B. AASP LLC is in default under the SportPark Lease for nonpayment of
rent and other monetary obligations such as real estate taxes as of the date
hereof (the "SportPark Back Rent").
C. Urban Land is the lessor and AAGC is the successor lessee under that
certain Lease Agreement made and entered into as of June 13, 1997 by and
between Urban Land, and All-American Golf Center, LLC, a California limited
liability company, as amended by Amendment to Lease Agreement and Amendment to
Memorandum of Lease dated September 17, 1997, and assigned to AAGC pursuant to
a certain Assignment of Ground Lease dated December 30, 1998 (the "Golf Center
Lease"), whereby Urban Land leased to AAGC certain "Leased Premises"
consisting of approximately 41.37 acres as defined therein (the "Golf Center
Premises"). AASP guaranteed the lessee's obligations under the Golf Center
Lease.
D. AAGC is in breach of the Golf Center Lease by virtue of nonpayment of
rent (the "Golf Center Back Rent").
E. SPLV and SPMI collectively own all of the member interests in AASP
LLC.
F. AASP owns all of the outstanding equity interests in SPLV and AAGC.
G. SPEN owns a majority of the outstanding common shares and all of the
outstanding preferred shares of AASP.
H. VB, RSB and BEL own common shares of SPEN (the "Collateral Stock").
I. AASP LLC obtained the First Loan (as defined below) from Nevada State
Bank evidenced by the First Loan Documents (as defined below). UIL purchased
the First Loan, Second Loan, and Zion's Lease from Nevada State Bank and is
the successor in interest to Nevada State Bank in connection with the Loans
and that Lease.
J. In order to induce Nevada State Bank to provide the First Loan, Urban
Land executed a Trust Deed, Assignment of Rents, Security Agreement and
Fixture Filing (the "Urban Land Trust Deed");
K. In order to induce Urban Land to provide the Urban Land Trust Deed,
VB, RSB and BEL pledged the Collateral Stock and VB granted a lien on certain
real property (the "▇▇▇▇ Property") to Urban Land pursuant to a Collateral
Assignment Agreement among Urban Land, AASP, VB, RSB and BEL (the "Collateral
Assignment").
L. In order to resolve various claims related to, and to restructure,
the foregoing arrangements, the parties desire to agree as set forth below.
Agreement
1. Definitions. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Boreta Parties" means VB, RSB and BEI.
"Charter Equipment" means the equipment which is subject to the
Charter Financial Documents.
"Charter Financial Documents" means the personal property financing
lease documents with Charter Financial, Inc., including without limitation the
following: Lease of Personal Property Number 6199, Purchase Agreement,
Guaranty Agreement executed by AASP and SPEN and all other documents executed
in connection with the Lease of Personal Property, as amended as of the date
hereof.
"Claims" means any and all claims, demands, damages, losses,
liabilities and causes of action, of whatever kind or nature, whether in law
or in equity, whether known or unknown, whether suspected or unsuspected,
including without limitation those related to unknown and unsuspected injuries
as well as unknown and unsuspected consequences of known or suspected
injuries.
"First Loan" means the loan from Nevada State Bank to AASP LLC in the
stated principal amount of $13,500,000.
"First Loan Documents" means all of the documents evidencing,
securing or delivered in connection with the First Loan, including without
limitation the following: Term Loan Agreement, Promissory Note, Term Loan
Trust Deed, Assignment of Rents, Security Agreement and Fixture Filing
executed by AASP LLC, the Urban Land Trust Deed, Trust Deed, Assignment of
Rents, Security Agreement and Fixture Filing executed by VB, a security
interest in personal property, UCC-1 financing statements and all other
documents executed in connection with the First Loan.
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"MLBB License Agreement" means the Letter Agreement dated as of
December 22, 1994, amended as of August 25, 1997, by and between Major League
Baseball Properties and AASP, as amended as of the date hereof.
"NASCAR Agreement" means the License Agreement dated as of August 1,
1995 by and between National Association for Stock Car Auto Racing, Inc. and
AASP, as amended as of the date hereof.
"Pepsi Agreement" means the Sponsorship Agreement dated as of
December 4, 1997 by and between AASP and the Pepsi-Cola Company, as amended as
of the date hereof.
"Nevada State Bank" means Nevada State Bank, a Nevada banking
corporation.
"Second Loan" means the loan from Nevada State Bank to SPLV in the
stated principal amount of $39,055.
"Second Loan Documents" means all of the documents evidencing,
securing or delivered in connection with the Second Loan, including without
limitation the following: Business Loan Agreement, Promissory Note,
Commercial Security Agreement, UCC-1 financing statements and all other
documents executed in connection with the Second Loan.
"Securities Act" means the Securities Act of 1933, as amended.
"Sierra Agreement" means Lease and Concession Agreement between
All-American Golf LLC, Saint ▇▇▇▇▇▇▇ Golf Corporation, Sierra Sportservice,
Inc. and Sportservice Corporation dated as of September 17, 1997, as amended
as set forth on Exhibit A to this Agreement.
"Sony Agreement" means the Purchase Agreement dated as of June 2,
1998 with Sony Electronics, Inc.
"SportPark Agreements" means those leases of personal property
located in or agreements relating to the operation of the SportPark Premises
listed on Exhibit D to this Agreement.
"SportPark Parties" means, collectively, AASP LLC, SPLV, AAGC, AASP,
SPEN and SPMI.
"Stockholders Agreement" means the Stockholders Agreement by and
between Urban Land, AASP and AAGC in the form attached as Exhibit E to this
Agreement
"Urban Parties" means, collectively, Urban and UIL.
"Zion" means Zion's Credit Corporation, a Utah corporation and an
affiliate of Nevada State Bank.
"Zion's Lease" means the financing lease from Zion to SPLV dated
July 17, 1998.
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"Zion's Lease Documents" means all of the documents evidencing,
securing or delivered in connection with the Zion's Lease, including without
limitation the following: Master Finance Lease No. 7659 dated July 17, 1998,
Trust Deed dated July 17, 1998 executed by VB for the benefit of Zion, UCC-1
financing statements and all other documents executed in connection with the
Zion's Lease.
2. SportPark Transactions. Subject to satisfaction of the conditions
precedent stated in Section 6 below:
(a) Termination of SportPark Lease. The SportPark Lease shall be
terminated effective May 31, 2001 at 12:00 midnight (the "SportPark
Termination Time"). AASP LLC agrees to surrender possession of the SportPark
Premises at the SportPark Termination Time. AASP LLC and Urban Land shall
execute and record in the real property records a Memorandum of Lease
Termination in the form attached as Exhibit B to this Agreement. Urban Land
accepts the SportPark Premises "as-is" without warranty or representation or
any obligation of AASP LLC to repair or replace any part of the SportPark
Premises or any improvements or personal property thereon.
(b) Termination of Collateral Agreement. Effective as of the
SportPark Termination Time, the Collateral Assignment is hereby terminated.
(c) Release of Liability with respect to Loan and Lease Documents.
Effective as of the SportPark Termination Time, the Urban Parties hereby
release the SportPark Parties and the Boreta Parties from all personal
liability for any obligations under or with respect to the First Loan and the
First Loan Documents, the Second Loan and the Second Loan Documents, the
Zion's Lease and the Zion's Lease Documents, and all guaranties of any of the
SportPark Parties and the Boreta Parties with respect to any of the foregoing.
Notwithstanding the foregoing or anything to the contrary in this Agreement or
any document executed pursuant to this Agreement, the First Loan, Second Loan,
and Zion's Lease shall remain in effect as nonrecourse obligations, and the
Term Loan Trust Deed, Assignment of Rents, Security Agreement and Fixture
Filing executed by AASP LLC, and the Urban Land Trust Deed shall remain in
effect as liens against the SportPark Premises and the SportPark Lease and all
other security documents (other than the Collateral Assignment) shall remain
in full force and effect; provided, however, that the Urban Parties will
commence no actions against the SportPark Parties or the Boreta Parties, and
will not obtain or enforce any judgments against them, except to enforce such
Deeds of Trust and security agreements against the collateral identified
therein.
(d) Personal Property. AASP LLC agrees to transfer to Urban Land
all leasehold improvements and personal property located on the SportPark
Premises, which improvements and personal property are owned by AASP LLC.
AASP LLC shall deliver to Urban Land a ▇▇▇▇ of Sale in the form attached as
Exhibit C hereto
(e) Insurance Proceeds. AASP LLC agrees to deliver to Urban Land an
assignment of, and to pay to Urban Land, all property insurance proceeds which
AASP LLC may receive as a result of casualty arising from vandalism at the
SportPark Premises involving equipment, including without limitation, certain
Charter Equipment, but only to the extent such insurance proceeds are actually
paid to AASP LLC.
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(f) Sierra Agreement. Subject to the terms of this Agreement, AASP
LLC hereby assigns to Urban Land all of its rights and obligations as
successor sublessor in connection with the Sierra Agreement but only as it
pertains to the SportPark Premises. AASP LLC represents and warrants to Urban
Land that the Sierra Agreement has not been amended or modified, except as
described in Exhibit A to this Agreement. Urban Land hereby assumes all
obligations of AASP LLC as an "Owner" under the Sierra Agreement, as it
pertains to the SportPark Premises. Urban Land and AASP agree to use
commercially reasonable efforts to enter into new agreements with Sierra
separating obligations relating to the SportPark Premises from those relating
to the Golf Center Premises.
(g) Pepsi Agreement. AASP LLC and AASP hereby assign to Urban Land
all of their rights and obligations in connection with the Pepsi Agreement but
only as it pertains to the SportPark Premises after the SportPark Termination
Time. Urban Land hereby assumes all obligations under the Pepsi Agreement, as
it pertains to the SportPark Premises, accruing after the SportPark
Termination Time. Urban Land and AASP agree to use commercially reasonable
efforts to enter into new agreements with Pepsi separating obligations
relating to the SportPark Premises from those relating to the Golf Center
Premises.
(h) SportPark Agreements. AASP LLC and AASP hereby assign to Urban
Land all of their rights and obligations under the SportPark Agreements. AASP
LLC represents and warrants to Urban Land that AASP LLC has provided to Urban
Land true and correct copies of all such SportPark Agreements. Urban Land
hereby assumes all obligations of AASP LLC and/or AASP under such SportPark
Agreements accruing after the SportPark Termination Time.
(i) MLBB Agreement and NASCAR Agreement. Urban Land acknowledges
and agrees that it does not have any right or interest in or to the MLBB
Agreement or the NASCAR Agreement or the rights granted thereunder. Urban
Land and AASP agree to use commercially reasonable efforts to facilitate a
cancellation of the MLBB Agreement and the NASCAR Agreement. Urban Land
agrees that it will take all actions necessary to avoid a violation of the
terms of MLBB Agreement or the NASCAR Agreement, including without limitation,
removal of all trademarks or servicemarks on the SportPark Premises.
(j) Delivery of Documents. Within two (2) business days after the
SportPark Termination Time, AASP LLC shall deliver to Urban Land (i) the
originals, or copies if originals are not available, of the property insurance
policy covering the SportPark Premises and the SportPark Agreements, (ii)
duplicate originals if available or if not available, copies of the Sierra
Agreement and all amendments and modifications thereto and the Pepsi
Agreement, and (iii) copies of the MLBB Agreement, and the NASCAR Agreement.
3. Golf Center Transactions. Subject to satisfaction of the conditions
precedent stated in Section 6 below:
(a) Cancellation of Golf Center Back Rent. Urban Land agrees to
cancel the obligations of AAGC for the Golf Center Back Rent through and
including April 30, 2001. Urban Land hereby withdraws the Notice of Default
dated as of May 17, 2001 and acknowledges and agrees that no other defaults
are pending with respect to the Golf Center Lease.
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(b) Golf Center May Rent. Concurrently with the execution of this
Agreement, AAGC agrees to pay in full the May rent obligations of AAGC under
the Golf Center Lease in the amount of Thirty-Three Thousand One Hundred
Seventy-Three and Eight One-Hundredths Dollars ($33,173.08).
(c) Future Rent. This Agreement does not constitute a modification
or forgiveness of any of AAGC's obligations with respect to rent owed under
the Golf Center Lease for periods beginning May 1, 2001. Tenant shall pay the
May rent in full as provided in Section 3(b) above, and thereafter shall pay
June rent and all future rent under the Lease in a timely manner.
(d) Negotiation of Amendment of Golf Center Lease. Upon Urban
Land's written request, AAGC agrees to enter into good faith negotiations to
amend the Golf Center Lease to release from the Leased Premises (as defined
therein) land not necessary for AAGC's operations sufficient for construction
of a 120-unit motel and/or an office or retail building containing not more
than 10,000 square feet with parking, landscaping, and other facilities as
required by law and as are customary for similar developments; provided
however, the precise size and location of such project and the other terms
relating thereto shall be subject to the approval of AAGC which shall not be
unreasonably withheld or delayed. Urban Land shall be responsible for any
costs of reconfiguring the golf course in connection with such release. Any
amendments to the Golf Center Lease shall provide that the Minimum Rent
payable under the Golf Center Lease shall be reduced or increased in
proportion to any reduction or increase in acreage of the Golf Center
Premises.
4. AAGC Transactions. Subject to satisfaction of the conditions
precedent stated in Section 6 below:
(a) AAGC Stock. In consideration of the agreements set forth in
this Agreement, AAGC agrees to issue to Urban Land a stock certificate
evidencing thirty-five percent (35%) of the total issued and outstanding
common shares of AAGC as of the date of this Agreement (the "Urban Land
Shares"). Each stock certificate representing Urban Land Shares shall be
stamped or otherwise imprinted with a legend as provided in the Stockholders
Agreement, in addition to any legend required under applicable state
securities laws. AAGC represents and warrants that it has issued and has
currently outstanding one hundred shares of common stock (the "AAGC Shares"),
all of which are held by AASP prior to the issuance contemplated by this
Agreement. AAGC represents and warrants that all AAGC Shares are duly
authorized, validly issued and outstanding and fully paid and non-assessable;
there are no other classes of shares or securities of AAGC which have been
authorized or issued, including but not limited to, any other special shares
or any securities convertible or exchangeable into any capital shares of AAGC,
and no option, warrants or other rights to purchase or subscribe to any
capital shares of AAGC, or securities convertible or exchangeable into any
capital shares of AAGC are presently outstanding, and no authorization
therefor is presently in effect or contemplated. AAGC represents and warrants
that, upon delivery of the stock certificate evidencing the Urban Land Shares
to Urban Land pursuant to this Agreement, Urban Land shall receive good and
marketable title to Urban Land Shares, free and clear of any pledge, lien,
charge, voting trust agreement or other encumbrance except the Stockholders
Agreement contemplated by this Agreement and applicable securities laws.
(b) Stockholders Agreement. Urban Land, AASP and AAGC agree to
execute and deliver the Stockholders Agreement.
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(c) Investment Representations. Urban Land understands that neither
the Urban Land Shares nor the AAGC Shares have been registered under the
Securities Act. Purchaser also understands that the Urban Land Shares are
being offered and sold pursuant to an exemption from registration contained in
the Securities Act based in part upon Urban Land's representations contained
in this Agreement. Urban Land hereby represents and warrants as follows:
(i) Urban Land Bears Economic Risk. Urban Land has
substantial experience in evaluating and investing in private placement
transactions of securities in companies similar to AAGC and has the capacity
to protect its own interests. Urban Land must bear the economic risk of this
investment indefinitely unless the Urban Land Shares are registered pursuant
to the Securities Act, or an exemption from registration is available. Urban
Land understands that AAGC has no present intention of registering the Urban
Land Shares or any AAGC Shares. Urban Land also understands that there is no
assurance that any exemption from registration under the Securities Act will
be available and that, even if available, such exemption may not allow Urban
Land to transfer all or any portion of the Urban Land Shares under the
circumstances, in the amounts or at the times Purchaser might propose.
(ii) Acquisition for Own Account. Urban Land is acquiring the
Urban Land Shares for Urban Land's own account for investment only, and not
with a view towards their distribution.
(iii) Urban Land Can Protect Its Interest. Urban Land
represents that by reason of its, or of its management's, business or
financial experience, Urban Land has the capacity to protect its own interests
in connection with the transactions contemplated in this Agreement. Further,
Urban Land is aware of no publication of any advertisement in connection with
the transactions contemplated in this Agreement.
(iv) Accredited Investor. Urban Land represents that it is an
accredited investor within the meaning of Regulation D under the Securities
Act.
(v) AAGC Information. Urban Land has had an opportunity to
discuss AAGC's business, management and financial affairs with directors,
officers and management of AAGC and has had the opportunity to review the
AAGC's operations and facilities. Urban Land has also had the opportunity to
ask questions of and receive answers from, AAGC and its management regarding
the terms and conditions of this investment.
(vi) Rule 144. Urban Land acknowledges and agrees that the
Urban Land Shares must be held indefinitely unless they are subsequently
registered under the Securities Act or an exemption from such registration is
available. Urban Land has been advised or is aware of the provisions of Rule
144 promulgated under the Securities Act as in effect from time to time, which
permits limited resale of shares purchased in a private placement subject to
the satisfaction of certain conditions, including, among other things: the
availability of certain current public information about AAGC, the resale
occurring following the required holding period under Rule 144 and the number
of shares being sold during any three-month period not exceeding specified
limitations.
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(vii) Residence. The office or offices of Urban Land in which
its investment decision was made is located at the address or addresses of
Urban Land at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
5. Release of Collateral Stock and ▇▇▇▇ Property. Concurrently with the
execution of this Agreement, the Collateral Assignment shall terminate. Urban
Land shall deliver to VB, RSB and BEL all stock certificates, stock powers or
other instruments relating to the Collateral Stock. Urban Land shall execute
and deliver all releases and other documents necessary to terminate and
release all liens or other interests in the ▇▇▇▇ Property.
6. Conditions Precedent.
(a) The obligations of the Urban Parties hereunder are conditioned
upon their receipt, at or before the SportPark Termination Time, of all of the
following:
(i) The Memorandum of Lease Termination executed in recordable
form by AASP LLC;
(ii) The ▇▇▇▇ of Sale executed by AASP LLC;
(iii) An Assignment of Insurance Proceeds executed by AASP LLC;
(iv) The Golf Center May rent;
(v) The Stock Certificate of AAGC evidencing the Urban Land
Shares;
(vi) The Stockholders Agreement executed by AASP and AAGC; and
(vii) Copies of resolutions of the Board of Directors of AASP and
AAGC, and of the members of AASP LLC, authorizing the transactions
contemplated by this Agreement.
(b) The obligations of the SportPark Parties and the Boreta Parties
hereunder are conditioned upon their receipt, at or before the SportPark
Termination Time, of all of the following:
(i) A copy of the Memorandum of Lease Termination executed in
recordable form by Urban Land;
(ii) The stock certificates evidencing the Collateral Stock;
(vi) The Stockholders Agreement executed by Urban Land; and
(vii) Copies of resolutions of the Board of Directors of Urban
Land and UIL, authorizing the transactions contemplated by this Agreement.
7. Releases and Indemnities.
(a) SportPark Parties and Boreta Parties Release. Each of the
SportPark Parties and the Boreta Parties, for itself and all of its affiliated
persons or entities, hereby waives and releases the Urban Parties, and the
parent, subsidiary, and affiliated entities of the Urban Parties, and the
shareholders, officers, directors, members, partners, employees, attorneys,
and agents of the Urban Parties, from any Claims in any way related to the
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SportPark Lease, the condition or operation of the SportPark Premises prior to
the SportPark Termination Time, the Collateral Assignment, the First Loan and
the First Loan Documents, the Second Loan and the Second Loan Documents, the
Zion's Lease and the Zion's Lease Documents, and all guaranties of any of the
SportPark Parties with respect to any of the foregoing. Each of the SportPark
Parties and the Boreta Parties, for itself and all of its affiliated persons
or entities, hereby waives and releases the Urban Parties, and the parent,
subsidiary, and affiliated entities of the Urban Parties, and the
shareholders, officers, directors, members, partners, employees, attorneys,
and agents of the Urban Parties, from any Claims (i) in any way related to the
Golf Center Lease or the Golf Center Back Rent and arising prior to the
SportPark Termination Time, and (ii) in any way related to guaranties of any
of the SportPark Parties with respect to the Golf Center Lease.
Notwithstanding the foregoing, the SportPark Parties and the Boreta Parties do
not waive or release any claims or obligations under this Agreement or under
any documents or agreements delivered pursuant to this Agreement.
(b) SportPark Parties Indemnity. Each of the SportPark Parties, for
itself and all of its affiliated persons or entities, hereby indemnifies and
agrees to defend and hold harmless the Urban Parties, and the parent,
subsidiary, and affiliated entities of the Urban Parties, and the
shareholders, officers, directors, members, partners, employees, attorneys,
and agents of the Urban Parties, from any Claims in any way related to (i) the
SportPark Premises or the operation thereof on or before the SportPark
Termination Time other than Claims arising from obligations assumed by the
Urban Parties under this Agreement, (ii) Claims of contractors for work
performed on the SportPark Premises contracted for by any of the SportPark
Parties, provided however, the SportPark Parties shall have the sole right to
defend and settle any such Claims, and (iii) the MLBB Agreement and the NASCAR
Agreement other than Claims arising or accruing from the operation of the
SportPark Premises on or after the SportPark Termination Time.
(c) Urban Parties Release. Each of the Urban Parties, for itself
and all of its affiliated persons or entities, hereby waives and releases (i)
each of the SportPark Parties and the Boreta Parties, and the respective
parent, subsidiary, and affiliated entities of each such Party, and the
shareholders, officers, directors, members, partners, employees, attorneys,
and agents of each of them, from any Claims in any way related to the
SportPark Lease, the condition or operation of the SportPark Premises, the
SportPark Back Rent, the Golf Center Back Rent, the Collateral Assignment, and
(subject to Section 2(c) above) the First Loan and the First Loan Documents,
the Second Loan and the Second Loan Documents, the Zion's Lease and the Zion's
Lease Documents, and all guaranties of any of the SportPark Parties and the
Boreta Parties with respect to any of the foregoing, (ii) each of the
SportPark Parties (other than AAGC and AASP) and the Boreta Parties, and the
respective parent, subsidiary, and affiliated entities of each such Party
other than AAGC and AASP, and the shareholders, officers, directors, members,
partners, employees, attorneys, and agents of each of them other than AAGC and
AASP, from any Claims in any way related to the Golf Center Lease, the Golf
Center Back Rent and all guaranties of any of the SportPark Parties (other
than AAGC and AASP) and the Boreta Parties with respect to the Golf Center
Lease. Each of the Urban Parties, for itself and all of its affiliated
persons or entities, hereby waives and releases AAGC and AASP, and the parent,
subsidiary, and affiliated entities of AAGC and AASP, and the shareholders,
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officers, directors, members, partners, employees, attorneys, and agents of
AAGC and AASP, from any Claims in any way related to the Golf Center Lease or
the Golf Center Back Rent and arising prior to the SportPark Termination Time.
Notwithstanding the foregoing, the Urban Parties do not waive or release any
claims or obligations under this Agreement or under any documents or
agreements delivered pursuant to this Agreement.
(d) Urban Parties Indemnity. Each of the Urban Parties, for itself
and all of its affiliated persons or entities, hereby indemnifies and agrees
to defend and hold harmless each of the SportPark Parties and the Boreta
Parties, and the respective parent, subsidiary, and affiliated entities of
each such Party, and the shareholders, officers, directors, members, partners,
employees, attorneys, and agents of each of them, from any Claims in any way
related to:
(i) the SportPark Premises or the operation thereof on or after
the SportPark Termination Time,
(ii) the Charter Equipment or the Charter Financial Documents
arising or accruing on or after the SportPark Termination Time,
(iii) the Sony Agreement arising or accruing on or after the
SportPark Termination Time,
(iv) the SportPark Agreements arising or accruing on or after
the SportPark Termination Time,
(v) the Sierra Agreement and all guaranties of any of the
SportPark Parties, the Boreta Parties or ▇▇▇▇▇▇▇▇ Golf Corporation in respect
of or relating to the Sierra Agreement to the extent pertaining to the
SportPark Premises arising or accruing on or after the SportPark Termination
Time,
(vi) all amounts payable pursuant to Section 8.5 of the Sierra
Agreement to the extent pertaining to the SportPark Premises,
(vii) the MLBB Agreement, the NASCAR Agreement or the Pepsi
Agreement arising or accruing from the operation of the SportPark Premises on
or after the SportPark Termination Time,
(viii) the SportPark Lease, the SportPark Back Rent, the Golf
Center Back Rent, the Collateral Assignment, and (subject to Section 2(c)
above) the First Loan and the First Loan Documents, the Second Loan and the
Second Loan Documents, the Zion's Lease and the Zion's Lease Documents, and
all guaranties of any of the SportPark Parties and the Boreta Parties with
respect to any of the foregoing, and
(ix) with respect to each of the SportPark Parties (other than
AAGC and AASP) and the Boreta Parties, and the respective parent, subsidiary,
and affiliated entities of each such Party, and the shareholders, officers,
directors, members, partners, employees, attorneys, and agents of each of them
from any Claims in any way related to the Golf Center Lease and all guaranties
of any of the SportPark Parties (other than AAGC and AASP) and the Boreta
Parties with respect to the Golf Center Lease.
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8. Consents and Further Assurances. Notwithstanding anything to the
contrary contained in this Agreement, to the extent that the transfer or
assignment or attempted transfer or assignment of any SportPark Agreement, the
Sierra Agreement or the Pepsi Agreement would be a violation of any such
agreement or would require any authorizations, approvals, consents or waivers
of third parties and such authorizations, approvals, consents or waivers shall
not have been obtained prior to the SportPark Termination Time, this Agreement
shall not constitute a transfer or assignment or an attempted transfer or
assignment or delivery thereof if any of the foregoing would constitute a
breach of the rights of any third party until such authorization, approval,
consent or waiver is obtained. Subject to the terms and conditions hereof,
each of the parties hereto agrees to use commercially reasonable efforts to
execute and deliver, or cause to be executed and delivered, all documents and
to take, or cause to be taken, all actions that may be reasonably necessary or
appropriate to effectuate the provisions of this Agreement.
9. Miscellaneous
(a) Severability. In the event any provision or part of this
Agreement shall be held to be invalid or unenforceable according to its terms
by any court or tribunal having jurisdiction over the Parties and subject
matter, such holding shall not affect the validity of the other provisions of
this Agreement and all other provisions shall remain in effect notwithstanding
the invalidity of any such provisions.
(b) Governing Law. All questions regarding the construction of this
Agreement, and the rights and liabilities of the Parties hereto shall be
governed by the laws of the State of Nevada without regard to its provisions
regarding conflicts of laws.
(c) Assignment. This Agreement shall not be assigned or transferred
in whole or in part by any Party without the prior written consent of the
other Parties. Any attempted assignment in contravention of this Agreement
shall be void and of no effect.
(d) Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings both written
and oral, with respect to the subject matter hereof.
(e) Amendment. No amendment to this Agreement shall be valid unless
made in writing and signed by the Parties.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
(g) Notices. All notices required or permitted to be given
hereunder shall be in writing and shall be sent by certified mail, postage
prepaid, and it intended for Tenant it shall be addressed:
If to SPEN, AASP, AAGC, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
SPLV, AASP LLC, SPMI, , ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇, RSB or BEL: ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Urban Land or UIL: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
Urban Investments, LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & Silver, Ltd.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(h) Inurement. Subject to the restrictions against assignment as
herein contained, this Agreement shall inure to the benefit of, and shall be
binding upon, the assigns, successors in interest, personal representatives,
estates, heirs, and legatees of each of the Parties hereto.
(i) Further Assurances. Each Party shall execute and deliver to the
other Party all such other additional documents and instruments as may be
reasonably required by the other Party to implement and evidence the purposes
and intent of the provisions of this Agreement.
(j) Arbitration. Any dispute, claim or controversy between the
Parties arising from or relating to this Agreement shall be settled by binding
arbitration as provided in section 59 of the Golf Park Lease.
(k) Attorneys' Fees. In the event of any controversy, claim or
dispute between the Parties relating to this Agreement or the breach thereof,
the prevailing Party shall be entitled to recover from the other Party
reasonable attorneys' fees and costs.
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have
executed this Agreement as of the day and year first hereinabove written.
ALL-AMERICAN SPORTPARK, LLC., THE ALL-AMERICAN GOLF CENTER,
a Nevada limited liability company INC., a Nevada corporation
By: SportPark Management, Inc.,
Managing Member
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President Title: President
12
SPORTPARK LAS VEGAS, INC., a Nevada ALL-AMERICAN SPORTPARK, INC., a
corporation Nevada corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President Title: President and CEO
SPORTS ENTERTAINMENT ENTERPRISE, BORETA ENTERPRISES, LTD., a Nevada
INC., a Nevada corporation limited liability company
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Manager
URBAN LAND OF NEVADA, INC., a
Nevada corporation /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇, President
URBAN INVESTMENTS LLC., a Nevada SPORTPARK MANAGEMENT, INC., a
limited liability company Nevada corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager Title: President
13
EXHIBIT A
SIERRA AGREEMENT
1. Lease and Concession Agreement between All-American Golf LLC and
Saint ▇▇▇▇▇▇▇ Golf Corporation and Sierra Sportservice, Inc. and Sportservice
Corporation dated as of September 17, 1997
2. Agreement dated as of May 5, 1998 between All-American Golf LLC,
Saint ▇▇▇▇▇▇▇ Golf Corporation, Callaway Golf Company, Sierra Sportservice,
Inc. and Sportservice Corporation
3. Memorandum of Lease and Concession Agreement dated as of September
17, 1997 between Saint ▇▇▇▇▇▇▇ Golf Corporation and All-American Golf LLC, and
Sierra Sportservice, Inc.
4. Subordination, Non-Disturbance and Attornment Agreement dated as of
September 17, 1997 by and among Urban Land of Nevada, Saint ▇▇▇▇▇▇▇ Golf
Corporation, All-American Golf, LLC and Callaway Golf Company and Sierra
Sportservice, Inc.
5. Amendment to Lease and Concession Agreement dated as of March 1, 1998
by and between All-American Golf, LLC, Saint ▇▇▇▇▇▇▇ Golf Corporation and
Sierra Sportservice, Inc. and Sportservice Corporation.
6. Second Amendment to Lease and Concession Agreement dated as of
September 3, 1998 by and between All-American Golf, LLC, Saint ▇▇▇▇▇▇▇ Golf
Corporation and Sierra Sportservice, Inc. and Sportservice Corporation
7. Letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to ▇▇▇ ▇▇▇▇▇▇ dated October 21, 1998.
EXHIBIT B
SPORTPARK MEMORANDUM OF LEASE TERMINATION
Recording Requested By
and When Recorded Mail To:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & Silver, Ltd.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Assessor's Parcel No. 177-04-101-008
MEMORANDUM OF LEASE TERMINATION
This Memorandum of Lease Termination is made as of May 30, 2001, by ALL
AMERICAN SPORTPARK, LLC, a Nevada limited liability company ("Tenant") with
offices at ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and URBAN LAND
OF NEVADA, INC., a Nevada corporation ("Landlord") with offices at ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
Landlord entered into a certain Lease Agreement dated June 13, 1997 (the
"Lease") with All-American SportPark, Inc. pertaining to a certain parcel of
23.61 acres of land. A Memorandum of Lease was recorded in the Official
Records of ▇▇▇▇▇ County, Nevada, on June 23, 1997, in Book 970623 as
Instrument No. 00042. Tenant is the successor lessee under the Lease under
Assignment and Assumption Agreement dated September 16, 1998 and recorded in
the Official Records on September 18, 1998 in Book 980918 as Document No.
01077. Landlord and Tenant have agreed that the Lease shall be terminated
effective May 31, 2001 at 12:00 midnight.
ALL AMERICAN SPORTPARK, LLC, a URBAN LAND OF NEVADA, INC., a
Nevada limited liability company Nevada Corporation
By: SportPark Management, Inc.,
Managing Member
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇, President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
STATE OF NEVADA )
) ss.
▇▇▇▇▇ COUNTY )
This instrument was acknowledged before me on May 31, 2001, by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ as President of SportPark Management, Inc., as Managing Member of All
American SportPark, LLC.
/s/ Cara Brunette
Notary Public
2
STATE OF NEVADA )
) ss.
▇▇▇▇▇ COUNTY )
This instrument was acknowledged before me on May 30, 2001 by ▇▇▇▇▇▇▇▇ ▇.
▇▇▇ as President of Urban Land of Nevada, Inc.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public
3
EXHIBIT C
SPORTPARK ▇▇▇▇ OF SALE
▇▇▇▇ OF SALE AND ASSIGNMENT
For good and valuable consideration, the receipt of which is hereby
acknowledged, ALL AMERICAN SPORTPARK, LLC, a Nevada limited liability company
("Seller"), does hereby, sell, assign, transfer and convey to URBAN LAND OF
NEVADA, INC., a Nevada corporation ("Buyer"):
1. all tangible personal property of Seller, if any (the "Personal
Property"), located on and used in connection with the operation of the
improvements on the real property located in the County of ▇▇▇▇▇, State of
Nevada, as more particularly described on Exhibit A attached hereto (the "Real
Property"), and
2. any rights Seller may have in connection with contracts related to
the Real Property, and the Personal Property, including any leases of personal
property, insurance policies and the proceeds of all claims thereunder,
subleases, and concession agreements ("Contract Rights").
Buyer accepts such Personal Property and Contract Rights "AS-IS" and
"WITH ALL FAULTS" and subject to any existing liens and encumbrances. Seller
specifically disclaims all express or implied warranties regarding the
existence or condition of, or title to, such Personal Property and Contract
Rights, including without limitation the implied warranties of merchantability
and suitability for a particular purpose.
Date: May 31, 2001.
ALL-AMERICAN SPORTPARK, LLC, a
Nevada limited liability company
By: SportPark Management, Inc., Managing
Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
EXHIBIT D
SPORTPARK AGREEMENTS
Charter Financial Documents
Logos Plus Coin Operated Locker Agreement
Nevada Pay Phone Lease Agreement
Sony Agreement
Phone System Lease
Radio Lease
EXHIBIT E
AAGC STOCKHOLDERS AGREEMENT
