Northern Lights Hockey, LLC_Assignment and Assumption AgreementBarry Lindahl
CITY ATTORNEY
To: Mayor Roy D. Buol and
Members of the City Council
DATE: December 7, 2009
RE: Resolution Consenting to the Assignment by Battlefield Dubuque, LLC of
its Interest in the Development Agreement between and among the City of
Dubuque, Iowa, Dubuque Ice and Recreation Center, Inc., Dubuque
Racing Association, and Battlefield Dubuque, LLC to Northern Lights
Hockey, LLC
The City of Dubuque (City), Dubuque Ice and Recreation Center, Inc. (DICE), Dubuque
Racing Association (DRA), and Battlefield Dubuque, LLC (Battlefield) entered inta a
Development Agreement, dated for reference purposes the 5th day of October, 2009,
pursuant to which the City agreed to lease DICE certain real property located in the City
so that DICE may construct on the property an Ice Arena.
DRA and Battlefield agreed to contribute to the funds required by DICE for the
construction of the Ice Arena and to enter into an agreement for the use of the Ice
Arena.
Northern Lights Hockey, LLC is the owner and operator of the United States Hockey
League team that will be using the Ice Arena for hockey events.
Battlefield has requested City consent to the Assignment of the Development
Agreement and related assignment agreements to Northern Lights Hockey, LLC.
The Assignment and Assumption Agreement appears to be in acceptable form.
However, Battlefield has not yet paid a $400,000 arena usage payment to DICE
required by the Development Agreement by November 20, 2009.
I recommend that the City Council adapt the attached Resolution consenting to the
Assignment and Assumption Agreement, subject to Battlefield complying with all of the
terms and conditions of the Development Agreement, including the payment of the
$400,000 arena usage payment to DICE as required by the Development Agreement,
and that the consent to the Assignment and Assumption Agreement not be delivered to
Battlefield until DICE advises the City that it has received the $400,000 arena usage
payment.
cc: Michael C. Van Milligen, City Manager
Jeanne Schneider, City Clerk
Cindy Steinhauser, Assistant City Manager
Gil Spence, Leisure Services Manager
Steve Brown, Project Manager
Preparers Barry A. Lindahl, Esq. Suite 330, Harbor View Place, 300 Main Street, Dubuque, IA 52001 (563) 583-4113
RESOLUTION NO. 458 -09
CONSENTING TO THE ASSIGNMENT BY BATTLEFIELD DUBUQUE, LLC OF ITS
INTEREST IN THE DEVELOPMENT AGREEMENT BETWEEN AND AMONG THE
CITY OF DUBUQUE, IOWA (CITY), DUBUQUE ICE AND RECREATION CENTER,
INC. (DICE), DUBUQUE RACING ASSOCIATION (DRA), AND BATTLEFIELD
DUBUQUE; LLC (BATTLEFIELD)
Whereas, City, DICE, DRA, and Battlefield entered into a Development
Agreement, dated for reference purposes the 5th day of October, 2009, pursuant to
which City has agreed to lease DICE certain real property located in the City of
Dubuque, so that DICE may construct on the property an ice arena (the Arena) as
described therein; and
Whereas, DRA and Battlefield agreed to contribute to the funds required by DICE
for the construction of the Arena and to enter into an agreement for the use of the
Arena; and
Whereas, Northern Lights Hockey, LLC is the owner and operator of the United
States Hockey League team that will be using the Arena for hockey events; and
Whereas, Battlefield has requested City consent to the attached Assignment of
the Development Agreement and related Assignment Agreements to Northern Lights
Hockey, LLC; and
Whereas, the City Council has determined that it should consent to the
Assignment and Assumption Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The Assignment and Assumption Agreement is hereby approved.
Section 2. The Mayor is hereby authorized and directed to sign the Consent to
Assignment and Assumption Agreement attached thereto.
Passed, approved and adopted this 7tn day of December , 2009.
Attest:
eanne F. Schneider, City Clerk
Roy ~. Buol, Mayor
The City of Dubuque, Iowa hereby consents to the foregoing Assignment and
Assumption Agreement.
Dated this? day of December, 2009.
CITY OF DUBUQUE, IOWA
By:
Attest
Roy D. uol, Mayor
Jeanne F. Schneider, City Clerk
CONSENT TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made
effective as of , 2009, by BATTLEFIELD DUBUQUE, LLC, a Minnesota
limited liability company ("Battlefield Dubuque"), to NORTHERN LIGHTS HOCKEY, LLC, a
Delaware limited liability company ("Purchaser"). Battlefield Dubuque and Purchaser are
sometimes hereinafter individually or collectively referred as a "Party" or the "Pasties."
RECITALS
A. Subject to and in accordance with the terms of the Asset Purchase Agreement
dated November 16, 2009 (the "Purchase Agreement"), among Battlefield Ventures, LLC, a
Minnesota limited liability company ("Ventures"), Battlefield Dubuque, LLC, a Minnesota
limited liability company ("Battlefield Dubuque" and collectively with Ventures, "Battlefield
Dubuque"), Brian Schoenborn (the "Sole Member"), and Northei-~i Lights Hockey, LLC, a
Delaware limited liability company ("Purchaser"), Battlefield Dubuque has agreed to sell and
assign to Purchaser and Purchaser has agreed to purchase and accept assignment from Battlefield
Dubuque all interest in the Assigned Agreements, (as such term, and other capitalized terms
used, but not defined herein, are defined in the Purchase Agreement), utilized by Battlefield
Dubuque and Ventures in connection with the Business, including certain leases, contracts and
agreement of Battlefield Dubuque as hereinafter described.
B. Battlefield Dubuque and Purchaser desire (i} to effect the transfer and assignment
to Battlefield Dubuque's interest in and rights under such contracts and agreements, and (ii) to
evidence the assumption by Purchaser of certain obligations and duties of Battlefield Dubuque
thereunder.
NOW, THEREFORE, in consideration of the premises and the payment of the Asset
Purchase Price provided for in the Purchase Agreement, receipt of which is hereby
acknowledged, it is agreed as follows:
1. Battlefield Dubuque hereby assigns and transfers to Purchaser, without
reservation, all of its interest in and rights under the contracts and agreements set forth on the
attached Exhibit "A" (collectively, the "Assigned Agreements"), and delegates to Purchaser all
of its duties and responsibilities under the Assigned Agreements, performable on or after the date
hereof.
2. Purchaser hereby assumes and agrees to pay and perform all of Battlefield
Dubuque's obligations under the Assigned Agreements arising after the date hereof to the same
extent as if Purchaser had been an original party thereto.
3. Battlefield Dubuque hereby covenants and warrants to Purchaser that the copies
of the Assigned Agreements delivered under the Purchase Agreement are true and genuine
copies of the original documents, under which Battlefield Dubuque has been and now is
operating, as amended to date.
6481855x2
4. Battlefield Dubuque hereby constitutes and appoints Purchaser the true and lawful
attorney of Battlefield Dubuque, with full power of substitution, in Battlefield Dubuque's name
and stead or otherwise, for Purchaser's own account and benefit, (i) to demand and receive
payments and otherwise enforce the provisions of any of the Assigned Agreements, (ii) to give
receipts and releases for and in respect of the same, (iii) to institute and prosecute, in the name of
Battlefield Dubuque or otherwise, any and all legal or administrative proceedings which
Purchaser may deem proper in order to assert or enforce any claim, right or title in and to any of
the Assigned Agreements, (iv) to defend or compromise any and all actions, suits or proceedings
in respect of any of the Assigned Agreements, and (v) to give such notices and to do all such acts
and things in relation to the Assigned Agreements as Purchaser shall deem desirable. Battlefield
Dubuque acknowledges that the agency and powers hereby granted are coupled with an interest
and are, and shall be, irrevocable by Battlefield Dubuque in any manner or for any reason.
5. For the better assuring and confirming in Purchaser of its rights in and title to the
Assigned Agreements, Battlefield Dubuque shall do or cause to be done all such further acts, and
shall execute and deliver or cause to be executed and delivered all such further assignments,
powers of attorney and assurances, as Purchaser shall reasonably require.
6. Nothing herein shall be construed to modify, expand, limit or otherwise amend
the representations and warranties or other covenants or agreements of the parties set forth in the
Purchase Agreement.
7. As used in this Assignment, the terms "Battlefield Dubuque" and "Purchaser"
shall, in each and every instance, also be deemed to include and refer to the respective heirs,
successors and assigns of Battlefield Dubuque and Purchaser.
8. This Assignment shall be governed by and construed and interpreted in
accordance with the laws of the State of Iowa without regard to principles of conflicts of law.
9. This Assignment may be executed in one or more counterparts, all of which shall
be considered one and the same assignment, and shall become effective when one or more
counterparts have been signed by each of the parties hereto and delivered, in person or by
telecopier, receipt acknowledged, to the other party hereto. This Assignment may be executed
and delivered by the parties hereto via telecopier machine or other means of electronic delivery,
which shall be deemed for all purposes as an original.
[SIGNATURE PAGE TO FOLLOW]
6481855v2
IN WITNESS WHEREOF, Seller has executed this Assignment effective as of the date fast
written above.
SELLER:
BATTLEFIELD DUBUQUE, LLC
By
Name: Brian J. Schoenborn
Its: President
PURCHASER:
NORTHERN LIGHTS HOCKEY, LLC
By
Name:
Its:
6481855v2
Exhibit °~A"
Assigned Agreements
1. Ice Usage Agreement dated August 5, 2009 between Battlefield Dubuque and Dubuque
Community Ice and Recreation Center, Inc., ("DICE");
2. Development Agreement dated October 2, 2009 among Battlefield Dubuque, DICE, the City
of Dubuque and the Dubuque Racing Association;
3. Assignment of United States Hockey League, Inc. Membership Interests dated November 11,
2007 among John Q. Hammons, Springfield Sports and Brian Schoenborn, as Sole Member;
4. Interim Agreement dated October 2, 2009, between Battlefield Dubuque, Brian Schoenborn,
and Philip Falcone; and
5. Escrow Agreement dated September 9, 2009 among DICE, Battlefield Dubuque, Philip
Falcone and Dubuque Bank and Trust Company.
6481855v2
Page 1 of 2
Barry Lindahl - RE: Assignment Consent -Northern Lights Hockey, LLC
From: "Schoenborn, Brian" <Brian.Schoenborn@leonard.com>
To: "Barry Lindahl" <balesq@cityofdubuque,org>, "Van Milligen, Mike"
<CtyMgr@cityofdubuque.org>
Date: 11/28/2009 2:40 PM
Subject: RE: Assignment Consent -Northern Lights Hockey, LLC
CC: <brian@mystique.org>, <bwoodward@altavistaresearch.com>
Attachments: logoemail2.jpg; spacer.gif; logoemail2.gif; Battlefield Dubuque LLC -Assignment
Agreement.DOC
Barry-
Attached is the form Assignment and Assumption Agreement. Basically, Northern Lights Hockey, LLC is
stepping into the shoes of Battlefield Dubuque, LLC as it made more sense for Falcone/Kwong to form their own
entity than to assume our Minnesota LLC. The USHL approved Northern Lights Hockey, LLC as the
owner/operator of the USHL team so we need to make sure the agreements are consistent. As you know,
the Development Agreement does not prohibit Battlefield Dubuque, LLC from assigning its interest nor does it
specifically require City, DICE or DRA approval. It does require that any assignment by DICE be consented to
by the City. That being said, we thought it was wise to notify and secure the consent of all parties to the
agreements.
The assignment agreement will be signed at closing, which will occur as soon as the consents are received. It is
our hope that the closing can take place this week.. Any thoughts on when the City Council could take action on
this? Since the Development Agreement does not require City consent for a Battlefield Dubuque, LLC
assignment, do we need City Council consent?
Thank you for your assistance and happy holidays!
Brian
Brian J, Schoenborn
Attorney
320-654-4102
brian schoenborn~leouard. com
Leonard, Street and Deinard
A Professrona! Assaclallwr
3800 Eighth Street North Suite 102
Saint Cloud, Minnesota 56303
From: Barry Lindahl
[mailto:balesq@cityofdubuque.org]
Sent: Saturday, November 28, 2009 9:32 AM
To: Schoenborn, Brian; Van Milligen, Mike
Cc: brian@mystique.org; bwoodward@altavistaresearch.com
Subject: Re: Assignment Consent -Northern Lights Hockey, LLC
Brian: The city council will have to consent to the assignment. We will need to see the actual assignment
documents. Thank you.
»> "Schoenborn, Brian" <Brian.Schoenborn@leonard.com> 11/27/2009 6:07 PM »>
Mike-
hope you are doing well and having a nice extended holiday weekend. Congratulations on the Mystique Ice
Center and the new USHL team in Dubuque. What an amazing step forward for the Dubuque community!
file://C:1Documents and Settings\blindahl\Local SettingslTemplXPgrpwise\46113... 12/4/2009
Page 2 of 2
As you know, Battlefield Dubuque, LLC is being replaced by Northern Lights Hockey, LLC as the owner and
operator of the United States Hockey League team in Dubuque. As a result, it is important that we assign the
various agreements that have been executed over the past four months to Northern Lights Hockey, LLC and
obtain consent from the parties to those agreements.
The City of Dubuque is a party to the Development Agreement, therefore, attached please find the consent
request related to that agreement. Please sign the consent where designated and return it to me via fax or pdf
as soon as possible. If you have any questions, please feel free to contact me.
Also, the attached Builders/Construction Insurance certificates are in the name of Battlefield Dubuque, LLC.
Please ask the agent/broker to change the additional insured/certificate holder to Northern Lights Hockey, LLC,
We would appreciate a letter or email from the insurance company confirming the requested transfer/change on
both policies.
Warmest personal regards,
Brian
I,~OIVARL'~ Brian J. Schoenborn
~~1~~~~ Attorney
32D-654-4102
ANL~ brian.schoenborn~alleonard,com
L7~INAR~
Leonard, Street and Deinard
lbtcnnunonl'1'iadottt AProfessiona/Associnlion
Cu[h[ttun Sensex 3800 Eighth Street North Suite 102
Saint Cloud, Minnesota 56303
CONFIDENTIALITY NOTICE: The information cc
confidential, may be legally privileged, a
use of the party named above. If the reade
recipient, you are advised that any dissemination, distribution, or
copying of this e-mail is strictly prohibited. If you have received this
e-mail in error, please immediately notify us by telephone at
612.335.1500 and destroy this e-mail.
-----------------------------------------------------------------------
-----------------------------------------------------------------------
CONFIDENTIALITY NOTICE: The information contained in this e-mail is
confidential, may be legally privileged, and is intended only for the
use of the party named above. If the reader of this e-mail is not the intended
recipient, you are advised that any dissemination, distribution, or
copying of this e-mail is strictly prohibited. If you have received this
e-mail in error, please immediately notify us by telephone at
612.335.1500 and destroy this e-mail.
-----------------------------------------------------------------------
file://C:1Documents and Settings\blindahllLocal Settings\Temp\XPgrpwise14B113... 12/4/2009
Page 1 of 2
Barry Lindahl - RE: Consents
From: "Schoenborn, Brian" <Brian.Schoenborn@leonard.com>
To: "Barry Lindahl" <balesq@cityofdubuque.org>, "Aviles, Jesus" <Jesus.Aviles@mystiquedbq.com>,
"Callahan, Bill" <wcallahan@dubuquebank.com>, "Goodman, James"
<jgoodman@octhomaslaw.com>, "Southwood, Brian" <brians@mystiquedbq.com>, "Van Milligen,
Mike" <CtyMgr@cityofdubuque.org>, "Woodward, Bob" <boodward@mchsi.com>
Date: 12/4/2009 9:17 AM
Subject: RE: Consents
CC: "Kwong, Brad" <BKwong@harbingercapital.com>, "Pace, Matthew" <mpace@herrick.com>
As you know, Battlefield Dubuque, LLC was formed and entered into the Ice Usage Agreement before we had
our financing in place. For lack of a better phrase, we had the cart before the horse. Fortunately, we found a
great team of horses. With the decision by Philip Falcone, Mark Falcone, Brad Kwong, Mark Falb and Dr. Field
to provide the necessary financing and ultimately lead our effort, it made sense to review the idea of using a
Minnesota LLC as the operator of the USHL membership. As a result, Northern Lights Hockey, LLC was
formed. Matthew and Brad, could you provide Barry some background regarding Northern Lights Hockey,
LLC?
From the USHL's perspective, Northern Lights Hockey, LLC was approved as the owner of the USHL
membership and granted the right to operate that membership in Dubuque. Battlefield Dubuque, LLC does not
own a USHL membership and has not been approved to acquire a membership or operate in Dubuque.
Therefore, it is important that all of the agreements and relationships in Dubuque be with Northern Lights. That
will be the operating entity moving forward.
Let me know if you have any other questions.
Thanks,
Brian
From: Barry Lindahl [mailto:balesq@cityofdubuque.org]
Sent: Friday, December 04, 2009 8:28 AM
To: Aviles, Jesus; Callahan, Bill; Goodman, James; Schoenborn, Brian; Southwood, Brian; Van Milligen, Mike;
Woodward, Bob
Cc: Kwong, Brad; Pace, Matthew
Subject: Re: Consents
Brian: We are scheduling a meeting of the Dubuque team today. What information can you get to us about the
new LLC?
»> "Schoenborn, Brian" <Brian.Schoenborn@leonard.com> 12/3/2009 9:52 PM »>
Gentlemen-
Forgive my prodding, but we would appreciate an update from you regarding the consents I sent out last week. I
understand that the City Council needs to act on the consent on Monday night. Barry, is the assignment
consent on the agenda? Assuming the Council approves the request, can we count on getting the executed
consent from the City on Tuesday the 8th?
We are required by our agreements to assign these documents from Battlefield Dubuque to Northern Lights on
or before Thursday, December 10th. Therefore, we would appreciate receiving the consents from the DRA,
DICE and DBT tomorrow or Monday. Hopefully we will receive the consent from the City on Tuesday and
complete our process on Tuesday or Wednesday.
file://C:1Documents and SettingslblindahllLocal Settings\TemplXPgrpwise\4B18D... 12/4/2009
Page 2 of 2
Thanks in advance for your assistance.
Warmest regards,
Brian
I~E~NARI~ Brian J. Schoenborn
STREET Attorney
320-654-4102
JdL1VD brianschoenborn~c,Leonard.com
DEINARL7
Leonard, Street and Deinard
rCnlllltlnp 1'~isdoill AProfessiorral Association
Cunirtioa Setts` 3800 Eighlh Street North Suite 102
Saint Cloud, Minnesota $G3o3
CONFIDENTIALITY NOTICE: The information cc
confidential, may be legally privileged, a
use of the party named above. If the reade
recipient, you are advised that any dissemination, distribution, or
copying of this e-mail is strictly prohibited. If you have received this
e-mail in error, please immediately notify us by telephone at
612.335.1500 and destroy this e-mail.
-----------------------------------------------------------------------
-----------------------------------------------------------------------
CONFIDENTIALITY NOTICE: The information contained in this e-mail is
confidential, may be legally privileged, and is intended only for the
use of the party named above. If the reader of this e-mail is not the intended
recipient, you are advised that any dissemination, distribution, or
copying of this e-mail is strictly prohibited. If you have received this
e-mail in error, please immediately notify us by telephone at
612.335.1500 and destroy this e-mail.
-----------------------------------------------------------------------
file://C:\Documents and Settings\blindahl\Local Settings\TempU(Pgrpwise\4B18D... 12/4/2009