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AMENDMENT NO. 1 TO
MEMORANDUM OF UNDERSTANDING
This Amendment No. 1 to Memorandum of Understanding (the
"Amendment") dated as of December 19, 2003 modifies and extends
the current Memorandum of Understanding by and among the District of
Columbia Sports and Entertainment Commission. an independent agency of the
District of Columbia ("DCSEC"), Washington Baseball Club, L.L.C.,
a District of Columbia limited liability company ("WBC"), and
the founding members of WBC (collectively with WBC and DCSEC, the
"Initial Parties") relating to coordinated, joint efforts to
secure a Major League Baseball ("MLB") franchise to locate and
play all future home games in the District of Columbia (a "DC
Franchise").
BACKGROUND
A. WBC and DCSEC have collaborated since 1999 in promotional and
other efforts to secure a DC Franchise with the belief that such a
franchise would (i) enhance the social, economic and cultural
environment of the District, and (ii) enjoy long-term prosperity by
virtue of being located in the compelling economic market of the
District.
B. Particularly in light of then current circumstances within MLB,
and to bring increased focus to their collaborative efforts, the Initial
Parties entered into a Memorandum of Understanding dated as of January
10, 2002 (the "MOU"), the term of which runs through December
31, 2003.
C. Since entering into the MOU, the Parties have devoted substantial
efforts and have significantly advanced the District's opportunity to
secure a DC Franchise, including by (i) collaborating with the Office of
the Deputy Mayor for Planning and Economic Development ("ODMPED")
in completing a comprehensive site evaluation study for locating a Nee
Ballpark, (ii) leading and/or participating in numerous public forums
and engaging local businesses and community organizations in a manner
that demonstrates strong and broad community support for the return of
MLB to the District, (iii) working with Mayor Williams, ODMPED, other
District officials and agencies, the District Council, Congress, and
other constituencies in developing and analyzing comprehensive financing
plans and legislative proposals that detail potentially available
sources of public and private funds for the development and construction
of a New Ballpark, (iv) enhancing the readiness of RFK to serve as a
temporary home for a DC Franchise pending completion of a New Ballpark,
and (v) engaging in direct, meaningful, and constructive dialogue with
MLB's Relocation Committee and the Office of the MLB Commissioner to
seriously discuss and advocate the return of NUB to the District.
D. As MLB continues to evaluate its options and circumstances within
MLB continue to evolve, the Parties believe it remains in the best
interests of the District to reassert their joint resolve to secure a DC
Franchise and to extend the term of the MOU.
Now, therefore, the Parties, intending to be legally bound, in
consideration of the premises and mutual covenants set forth herein, and
for other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, hereby agree as follows:
I. Capitalized Terms and Effect of Amendment
A. Capitalized Terms. Except as expressly defined herein or amended
hereby, capitalized terms used herein shall have the meanings set forth
in the MOU.
1. The term "WBC Founders" shall be amended to add David
G. Bradley and Jeffrey D. Zients to the six individuals who originally
were identified as WBC Founders in the MOU.
2. The term "Predevelopment Funding"
shall mean a fixed amount equal to $339,000, which equals the total
amount contributed by WBC to DCSEC to support Predevelopment Work.
3. The term "Reimbursable Expenses" shall mean a fixed
amount equal to $892,000 which represents an agreed upon portion of
the expenses incurred by WBC prior to December 31, 2003 in connection
with its efforts to secure a DC Franchise.
4. The term "MOU' when used in the MOU, shall mean the MOU as
amended hereby.
5. The term "Parties" as used herein and in the MOU shall
mean the parties to this Amendment.
B. Effect of Amendment. The Parties hereby affirm that, except as
expressly amended hereby, the MOU shall remain in full force and effect,
and the MOU, as amended hereby, reflects the entire agreement of the
Parties with respect to the subject matter and supercedes all prior
agreements and understandings of the Parties, oral and written with
respect to its subject matter.
C. Counterparts and Effectiveness. This Amendment may be executed in
one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument, and
shall become effective when each of the Parties hereto shall have
delivered to it this Amendment duly executed by the other Parties
hereto. Upon effectiveness, WBC shall be obligated to pay promptly to
DCSEC the $200,000 unpaid balance of the Predevelopment Funding. If such
amount is not paid in full on or before February 28, 2004, the Amendment
shall be null and void, provided, however, that the obligation of WBC to
pay the unpaid portion of the Predevelopment Funding shall survive.
II. Specific Amendments
A. Amendments to Section I.A. In the seventh line "2005 MLB
Season" shall be substituted in lieu of "2004 MLB
Season", and in the sixteenth line "2004 MLB Season"
shall be substituted in lieu of "2002 MLB Season".
B. Amendments to Section I.E., In the second line "December 31,
2004" shall be substituted in lieu of "December 31,
2003".
C. Amendments to Section I.F. All of Section I.F. except for its
first sentence shall be deleted.
D. Amendments to Section II.C. In the nineteenth line, the phrase
"use best efforts to" shall be inserted following "DCSEC
shall".
E. Amendments to Section II.E. Section II.E. shall be amended and
restated in its entirety as follows:
In the event that a DC Franchise is obtained and neither WBC nor the
WBC Parties own collectively in the aggregate at least 10% of the equity
interest in such DC Franchise prior to the date that an RFK Lease is
executed by the owner of the DC Franchise, unless DCSEC shall have
terminated this MOU other than pursuant to clause (iii) of Section V.B.,
DCSEC shall use best efforts to cause the owner of the DC Franchise to
repay to WBC the Predevelopment Funding on or prior to the execution of
the RFK Lease. In addition, in the event that (i) DCSEC terminates this
MOU to deal with an Existing Owner who is a MLB mandated owner as
defined in clause (ii) of the definition of Existing Owner, (ii) a DC
Franchise is obtained by such Existing Owner and, despite best efforts
to acquire a minority interest, neither WBC nor the WBC Parties, own
collectively in the aggregate at least 10% of the equity interest in
such DC Franchise prior to the latest of the deadline imposed by MLB for
an Existing Owner to meet the Local Ownership Requirement, the date of
any arbitration award under Section II.D., or the date that the DC
Franchise commences play at RFK (the "Expense Reimbursement
Date"), (iii) WBC and the WBC Founders demonstrate that they
nonetheless meet all applicable financial, character and other
qualifications required by MLB to become MLB owners, and (iv) DCSEC
shall not have terminated this MOU for any other permitted reason, then
DCSEC shall use best efforts to cause the Existing Owner on the Expense
Reimbursement Date to reimburse WBC's Reimbursable Expenses (the
"Expense Reimbursement").
F. Amendments to Section VI.C. In Part a. of Section VI.C. the phrase
"Attention: Chairman" shall be substituted in lieu of
"Attention: Robert D. Goldwater, President".
III. Representations of the Parties
A. Representations of WBC. WBC represents and warrants to DCSEC as
follows:
1. Prior Representations. The representations and warranties of WBC
set forth in Section VLA. of the MOU are true and correct in all
material respects as of the date hereof except for the addition of
David G. Bradley and Jeffery D. Zients as WBC Founders and any
modification resulting therefrom of the WBC Founders' respective
percentage ownership interests in WBC.
2. Due Execution. The execution, delivery and
performance of this Amendment by WBC has been duly and validly
approved by all necessary action of WBC and its members.
B. Representations of DCSEC.
1. Prior Representations. The representations and warranties of
DCSEC set forth in Section VI.B. of the MOU are true and correct in
all material respects as of the date hereof
2. Due Execution. The execution, delivery and performance of this
Amendment by DCSEC has been duly and validly approved by all necessary
action of DCSEC.
[Signatures follow on the next page.]
In witness whereof, the Parties have executed this Amendment as of the
date first above written.
District of Columbia Sports and Entertainment Commission
By: John J. Mahoney
Interim Chairman
Washington Baseball Club, L.L.C.
By: Frederic Malek Managing Member
The WBC Founders have executed this Amendment as of the date first
above written solely as to the obligations set forth in Section VI.L. of
the MOU.
Frederic Malek
Franklin D. Raines
James V. Kimsey
Stephen W. Porter
Joseph E. Robert, Jr.
Paul Martin Wolff
David G. Bradley
Jeffrey D. Zients |
