AMENDED AND RESTATED
AGREEMENT RE GROUND LEASE
by and between
THE IRVINE COMPANY,
a Michigan corporation
("Company")
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
a California general partnership
("▇▇▇▇▇▇▇")
October 1, 1991
AMENDED AND RESTATED AGREEMENT
This AMENDED AND RESTATED AGREEMENT (the "Agreement") is entered into as of the
1st day of October, 1991, by and between THE IRVINE COMPANY, a Michigan
corporation ("Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a California general partnership
("▇▇▇▇▇▇▇").
RECITALS
A. Company, as lessor, and Lion Country Safari, Inc.-California ("LCS"),
as lessee, are parties to that certain ground lease dated February 11, 1969,
covering certain real property in Orange County, California described therein,
as amended by Amendments Nos. 1 through 9 (collectively, the "Master Lease").
The leasehold estate created by the Master Lease as hereinafter referred to as
the "Master Leasehold". The Master Lease will expire on February 28, 1997,
unless sooner terminated as therein provided.
B. LCS, as sublessor, and Feyline Presents, Inc. ("Feyline"), as sublessee,
are parties to that certain Sublease Agreement dated August 7, 1980, as amended
by those certain Amendments to Sublease dated September 16,1980 and January 8,
1981, and by that certain Letter Agreement dated February 23, 1984
(collectively, the "Sublease"). ▇▇▇▇▇▇▇ is successor-in-interest to the interest
of Feyline under the Sublease. The Sublease will expire on February 28, 1997,
unless sooner terminated as therein provided.
C. The Sublease covers a portion of the Master Leasehold (the "Subleased
Premises"), which is composed of an area demised for the exclusive use of
▇▇▇▇▇▇▇ ("Exclusive Area"), and an area demised for non-exclusive common use by
▇▇▇▇▇▇▇ and LCS for parking of automobiles ("Common Area"). The Subleased
Premises are described on Exhibit A and depicted on Exhibit B, each attached
hereto and incorporated herein by reference.
▇. ▇▇▇▇▇▇▇ operates the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Amphitheater (the "Amphitheater") on
the Subleased Premises.
▇. ▇▇▇▇▇▇▇ and Company entered into that certain Assignment and Purchase
Agreement and Grant of Option to Ground Lease dated April 27, 1984, as amended
on November 26, 1986 (the "Purchase Agreement").
▇. ▇▇▇▇▇▇▇ and Company desire to amend and restate in its entirety the
Purchase Agreement as hereinafter set forth, excepting therefrom those covenants
and provisions of the Purchase Agreement which have been fully performed by the
party so obligated thereunder.
NOW, THEREFORE, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
1.01. NEW GROUND LEASE shall refer to that certain ground lease attached
hereto as Exhibit C and by this reference incorporated herein.
ARTICLE II
COMPLETED OBLIGATIONS
2.01. RETAINED INCOME STREAM. The parties acknowledge that the
Retained Income Stream, or RIS, as such terms are defined in the Purchase
Agreement, has been acquired by ▇▇▇▇▇▇▇, as obligor thereunder, and is,
therefore, extinguished as an obligation of ▇▇▇▇▇▇▇.
2.02. ASSIGNED INCOME STREAM. The parties acknowledge that the Assigned
Income Stream, or AIS, as such terms are defined in the Purchase Agreement, has
reverted and been assigned to LCS by ▇▇▇▇▇▇▇ pursuant to the LCS/TIC Assignment
(as defined in the Purchase Agreement), and is now the direct obligation of
▇▇▇▇▇▇▇ to LCS.
2.03. TAXES. The parties acknowledge that nothing herein contained shall
alter Meadow's obligation to pay taxes directly to Company pursuant to Paragraph
4(b) of Amendment No. 9 to the Master Lease.
2.04. PURCHASE AGREEMENT SUPERSEDED. This Agreement shall supersede the
Purchase Agreement in its entirety.
ARTICLE III
GENERAL PROVISIONS
3.01. TERM. This Agreement, and all rights and obligations created
hereunder, other than the obligation of ▇▇▇▇▇▇▇ to pay the sums provided in
Sections 4.02 and 8.02(b), shall terminate on the first of the following to
occur (the "Termination Date"):
(a) March 1, 1997;
(b) The termination of the Master Lease;
(c) The termination of the Sublease for any reason other than the
termination of the Master Lease, and the concurrent commencement of the New
Ground Lease as provided in Subsection 7.01; and
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(d) The termination of this Agreement by Company as provided in Section
8.02(a).
3.02. LCS AGREEMENT. Nothing herein shall have the effect of, nor be
construed as, altering or modifying any of the rights accruing to LCS, or the
obligations of ▇▇▇▇▇▇▇ to LCS, under any other agreement, including, without
limitation, the Sublease and the Master Lease.
3.03. INDEMNITY. ▇▇▇▇▇▇▇ hereby agrees that it shall indemnify, defend and
hold Company harmless from and against any and all claims, losses, damages,
actions, causes of action, costs and expenses, including reasonable attorneys'
fees and costs of collection and defense, incurred by Company with respect to
the failure by ▇▇▇▇▇▇▇ to pay and perform each and every obligation to be
performed by it under this Agreement. In addition, in the event that any person
or entity shall bring an action or actions against Company and/or its past,
present or future shareholders, officers, directors, employees or agents (the
"Indemnified Parties") seeking damages, declaratory relief, injunctive relief or
other remedy at equity or law against the Indemnified Parties on the basis of,
with respect to, or resulting from (i) Company's entry into the Purchase
Agreement, this Agreement and all other agreements and instruments incorporated
herein, (ii) any action or inaction by the Indemnified Parties which is in any
way related to the performance or administration of the Purchase Agreement, this
Agreement and all other agreements and instruments incorporated herein, or (iii)
any action, claim, demand or proceeding initiated by any person or entity with
respect to the Purchase Agreement, this Agreement, any agreements or instruments
incorporated herein, or any rights or interests allegedly affected thereby, then
▇▇▇▇▇▇▇ shall in each such event defend, indemnify and hold Company harmless
from and against any and all claims, losses, damages, actions, causes of action,
costs and expenses, including reasonable attorneys' fees and costs of defense,
in relation thereto. The defense of any such action shall be by counsel selected
by Company and ▇▇▇▇▇▇▇ shall promptly pay any monetary judgment awarded in any
such action (or provide Company with a bond against such judgment pending
appeal), including attorneys' fees and costs, and any amount agreed to be paid
in settlement of such action. The Indemnified Parties shall promptly notify
▇▇▇▇▇▇▇ in writing of the service of any such action, shall reasonably cooperate
with ▇▇▇▇▇▇▇ in the defense thereof, and shall not admit liability in such
action or agree to any settlement thereof without the consent or approval of
▇▇▇▇▇▇▇, which consent shall not be unreasonably withheld, delayed or
conditioned. The foregoing shall apply to any action of the type described
herein, whether styled as a class action, derivative action or otherwise.
Payment shall not be a condition precedent to recovery by Company upon the
foregoing indemnities. Such indemnities shall survive the termination of this
Agreement.
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ARTICLE IV
PAYMENTS BY ▇▇▇▇▇▇▇
4.01. ANNUAL PAYMENTS. From and after the date hereof, and continuing until
the Termination Date, ▇▇▇▇▇▇▇ shall pay Company One Hundred Fifty Thousand
Dollars ($150,000) per annum, payable quarterly in installments of Thirty Seven
Thousand Five Hundred Dollars ($37,500), in advance, commencing on the first day
of September, 1991; provided however, that the first such quarterly payment
shall include a pro rata portion for the period from October 1, 1990 to December
31, 1991.
4.02. AIS PURCHASE PRICE. In consideration of Company's execution and
delivery of this Agreement, ▇▇▇▇▇▇▇ agrees to pay Company the sum of One Million
One Hundred Twenty Five Thousand Two Hundred Sixty Eight Dollars ($1,125,268),
with interest thereon from the date hereof until paid in full at a rate equal to
the prime rate of interest announced from time to time by Security Pacific
National Bank plus one and one-half percent (1 1/2%) per annum (the "AIS
Purchase Price"). Said sum shall be payable monthly, in arrears, in principal
installments of Eight Thousand Three Hundred Thirty Three Dollars ($8,333),
plus accrued interest, commencing on the first day of October, 1990. The then
outstanding principal balance owing, plus accrued and unpaid interest, shall be
immediately due and payable in full on the earlier to occur of (i) any
assignment of the Sublease, in whole or part, by ▇▇▇▇▇▇▇ (other than an
assignment as security to an Institutional lender providing a loan in connection
with the improvement or operation of the Amphitheater), or (ii) any sale of the
Amphitheater, or any interest therein, by ▇▇▇▇▇▇▇, or (iii) any sale of ▇▇▇▇▇▇▇,
or any interest therein, or (iv) February 28, 1997, or (v) the termination of
the Master Lease or the Sublease unless there is a concurrent commencement of
the New Ground Lease as provided in Subsection 7.01.
4.03. GUARANTEE OF PAYMENTS. Concurrently with the execution and delivery
of this Agreement, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, each the
principal shareholder of a corporate general partner of ▇▇▇▇▇▇▇, and ▇▇▇▇
▇▇▇▇▇▇▇, a general partner in ▇▇▇▇▇▇▇, agree to execute and deliver to Company a
joint and several guarantee of ▇▇▇▇▇▇▇ obligations under Sections 4.01 and 4.02
hereof in the form attached hereto as Exhibit D.
ARTICLE V
AMPHITHEATER OPERATIONS
5.01. AMPHITHEATER OPERATIONS. ▇▇▇▇▇▇▇ agrees that:
(a) the Amphitheater shall have a fixed seating capacity of no more
than 16,300 seats unless a greater seating capacity is approved by Company
in writing prior to ▇▇▇▇▇▇▇ undertaking any increase in such seating
capacity. In determining whether to grant or withhold
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such consent, Landlord may consider the effect of such expanded operations
on other property owned by Landlord in the vicinity of the Subleased
Premises;
(b) total ticketed attendance at the Amphitheater shall not exceed
16,300 persons for each performance unless an increase in seating capacity
is approved by Company as aforesaid, in which event the total ticketed
attendance at the Amphitheater shall not exceed the number of fixed seats
as so approved by Company;
(c) performances of any kind at the Amphitheater on any day other than
Friday, Saturday or Sunday evenings or holidays shall commence no earlier
than 8:00 p.m. and will terminate no later than 12:00 midnight. For
purposes of this subpart (c), holidays shall refer to any day when state
and national banks and governmental offices are closed in California;
(d) all operations at the Amphitheater shall at all times comply with
applicable State and local ordinances, laws and regulations, including,
without limitation, all such ordinances, laws and regulations pertaining to
noise, and shall be compatible with adjacent land use designations of
governmental agencies having jurisdiction over such land uses; and
(e) all site plans, grading plans, working drawings and construction
plans for any work to be performed at the Amphitheater, together with all
other approvals as may be required by the Master Lease, shall be submitted
to Company for its approval prior to the commencement of any work on the
Subleased Premises.
5.02. OBTAINING LCS CONSENT. Nothing herein contained shall relieve ▇▇▇▇▇▇▇
of any obligation it may have to obtain the consent of LCS to any matter in
connection with the operation of the Amphitheater, or any work to be performed
in connection therewith, including, without limitation, the requirement of
obtaining the consent of LCS to any performance at the Amphitheater other than
between the hours of 8:00 p.m. and 12:00 midnight.
5.03. CONTINUING COVENANTS. Each of the covenants contained in the Consent
Agreement (as defined in the Purchase Agreement) shall continue in effect and be
the obligation of ▇▇▇▇▇▇▇ even if Company assumes the rights and obligations of
the sublessor under the Sublease as contemplated in Paragraph 4 of the Consent
Agreement.
5.04. COMPANY ENFORCEMENT OF SUBLEASE. ▇▇▇▇▇▇▇ acknowledges and agrees that
Company shall have the right, but not the obligation, to enforce performance of
the Sublease by ▇▇▇▇▇▇▇, and such right shall be independent of Meadow's
obligations hereunder. No action by Company to enforce the Sublease shall act to
release, suspend or otherwise affect in any
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manner the obligations of ▇▇▇▇▇▇▇ to make the payments to Company provided in
Section 4.02 above.
5.05. SIGNAGE. The parties acknowledge that Company is currently providing
two signage locations off the Subleased Premises for identification by ▇▇▇▇▇▇▇
of Amphitheater attractions. ▇▇▇▇▇▇▇ acknowledges that Company may develop or
otherwise utilize property which it owns in the vicinity of the Subleased
Premises in a manner which makes it necessary or desirable, in Company's sole
judgment, to remove such signs from their present locations. Therefore, from
time to time during the term of this Agreement, and during the term of the New
Ground Lease, Company shall have the right to cause ▇▇▇▇▇▇▇ to relocate such
signage to other locations to be provided by Company, at no cost or expense to
Company. Furthermore, ▇▇▇▇▇▇▇ shall make no changes in the present signs without
first obtaining Company's prior written consent. Any new signs, or signs to be
relocated as aforementioned, shall be subject to Company's prior written
approval as to size, design, location, and esthetics, and ▇▇▇▇▇▇▇ shall be
responsible for obtaining any and all zoning or other land use entitlements
necessary in order to maintain or relocate such signs, at no cost or expense to
Company.
5.06. FENCING AND LANDSCAPING. Company acknowledges that the Subleased
Premises are currently bounded by a chain link fence erected by ▇▇▇▇▇▇▇, and
that portions of said fence have been screened by landscaping. ▇▇▇▇▇▇▇ hereby
agrees that, from time to time during the term of this Agreement and the New
Ground Lease, in the event Company undertakes the sale, lease or development of
property in the vicinity of the Subleased Premises, Company shall have the right
to require that ▇▇▇▇▇▇▇ plant suitable and adequate additional landscape
screening of said fence in locations where such fence is not currently
landscaped and which are visible from such development on property owned by
Company as of the date hereof; provided, however, that such landscaping shall
not exceed Ten Thousand Dollars ($10,000) unless Company shall agree to pay for
any cost in excess thereof. In addition, in the event Company undertakes the
sale, lease or development of property adjacent to the Subleased Premises,
Company shall have the right to construct fencing or walls between the Subleased
Premises and the adjacent property (such as, block wall, stucco, brick or other
architectural fencing), and, in such event, ▇▇▇▇▇▇▇ agrees to pay Company
one-half (1/2) of the costs and expenses incurred in the design and construction
of such walls or fencing within thirty (30) days following written demand
therefor from Company, accompanied by reasonable supporting documentation for
the costs and expenses incurred by Company; provided, however, that the portion
of the cost of such fencing to be borne by ▇▇▇▇▇▇▇ shall not exceed Twenty-Five
Thousand Dollars ($25,000) unless Company shall agree to pay for any cost in
excess thereof. In connection with the limitation on the cost of both the
landscaping and fencing to be incurred by ▇▇▇▇▇▇▇ pursuant to this Section 5.06,
the aforementioned limits shall be increased annually from the day hereof by any
percentage increase in the Consumer Price Index, All Urban Consumers, All Items,
▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇-▇▇ = 100.
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ARTICLE VI
BOOKS AND RECORDS
6.01. RECORDS. ▇▇▇▇▇▇▇ shall keep and maintain, and shall require its
subtenants and concessionaires, if any, to keep and maintain, at the Subleased
Premises, or at such other place as Company may approve in writing, complete and
accurate books of account and records of all trade or business activity
conducted on, at or from the Subleased Premises. Such records shall be kept in
accordance with generally accepted accounting principles (GAAP) consistently
applied and shall include, but not be limited to, all purchases and receipts of
merchandise, services, fees and expenses paid for or on account of performing
artists or acts, inventories, goods, services, and all sales and other
transactions from which ▇▇▇▇▇▇▇' gross sales, expenditures, and net operating
profit or loss can be determined. Such records shall also include complete
internal accounting controls and written documentation of such internal control
procedures. ▇▇▇▇▇▇▇ agrees to document and record all sales, purchases, loans,
borrowings, and business transactions of any kind, at the time each such
transaction is made. ▇▇▇▇▇▇▇ shall keep all original books and records relating
to transactions taking place in a calendar year for at least three (3) years
following the end of such calendar year. Such records shall include, but not be
limited to, (i) daily dated register tapes, (ii) serially numbered sales slips,
(iii) settlement report sheets of transactions with sublessees, concessionaires,
licensees, and performing acts, (iv) receipts or other records of all leases,
licenses, contracts, documents, and instruments entered into by ▇▇▇▇▇▇▇ with
respect to any activity on the Subleased Premises, (v) duplicate bank deposit
slips and bank statements, (vi) all state and federal sales and occupation tax
returns, and (vii) such other records as would normally be required to be kept
and examined by an independent accountant in accordance with accepted auditing
practices in performing an audit of ▇▇▇▇▇▇▇' gross sales, and net operating
profit and loss.
6.02. COMPANY INSPECTION RIGHTS. All books, records and documents
maintained by ▇▇▇▇▇▇▇ pursuant to Section 6.01 above shall be available for
inspection and copying by Company at any time during normal business hours.
6.03. REPORTS.
(a) ANNUAL PROJECTIONS. ▇▇▇▇▇▇▇ shall prepare and deliver to Company on or
before March 31 of each calendar year, a pro forma and operating plan for all
activities to be conducted on the Subleased Premises during the then current
calendar year (the "Annual Projection"). The Annual Projection shall set forth
▇▇▇▇▇▇▇' analysis of anticipated gross receipts, and net operating profit and
loss for each quarter of the ensuing calendar year.
(b) QUARTERLY UPDATES. On July 31 and October 31 of each year, ▇▇▇▇▇▇▇
shall submit to Company a revised Annual Projection for the current
7
calendar year which shall include actual financial performance, including gross
receipts, and net operating profit or loss through the close of the preceding
calendar quarter.
(c) CLOSING ANNUAL REPORT. On February 28 of each calendar year, ▇▇▇▇▇▇▇
shall submit a Closing Annual Report of its actual financial performance during
the preceding calendar year which shall show the actual totals of gross
receipts, and net operating profit or loss for that preceding year.
6.04. AUDIT. At any time within three (3) years after receipt of any Annual
Projection, quarterly updates, or Annual Report (a "Report") furnished to it by
▇▇▇▇▇▇▇, and upon five (5) days' prior written notice to ▇▇▇▇▇▇▇, Company may
cause a special audit to be made of ▇▇▇▇▇▇▇' business affairs and records
relating to the Subleased Premises for the period covered by such Report. The
cost of such audit shall be paid by Company.
ARTICLE VII
NEW LEASE
7.01. AGREEMENT TO ENTER INTO NEW LEASE. Company and ▇▇▇▇▇▇▇ hereby agree
to enter into the New Ground Lease of the Subleased Premises effective the
Termination Date; provided however, that if the Termination Date occurs pursuant
to Section 3.01(c), other than concurrently with termination of the Master
Lease, or Section 3.01(d), this Agreement shall terminate and Company shall have
no obligation to enter into the New Ground Lease, and all rights on ▇▇▇▇▇▇▇
hereunder shall automatically terminate. The Subleased Premises are referred to
in the New Ground Lease as the "Premises."
7.02. CONDITIONS PRECEDENT.
(a) Company shall have no obligation to enter into the New Ground
Lease at any time ▇▇▇▇▇▇▇ is in default under any material provision of
this Agreement, or any agreement or document incorporated herein by
reference.
(b) Company shall have no obligation to enter into the New Lease
unless and until ▇▇▇▇▇▇▇ shall have either (i) obtained approval of and
filed for record a final subdivision or parcel map (the "Map") creating the
Premises as one or more separate legal lots pursuant to the Subdivision Map
Act of the State of California (Government Code ss.66410-66458.99) (the
"Map Act"), as hereafter supplemented or revised, and the local rules and
regulations promulgated thereunder from time to time, or (ii) obtained an
exception to the Map Act. Company makes no representations or warranties
that the Map and/or other land use approvals and entitlements required in
connection with obtaining the approval and recordation of the Map, can be
obtained by ▇▇▇▇▇▇▇; provided, however, that Company
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agrees that it will reasonably cooperate with ▇▇▇▇▇▇▇ in the application
for and processing of such Map with the County of Orange in order to record
such Map prior to the Commencement Date of the New Lease. All costs and
expenses incurred or paid by Company from time to time in connection with
the preparation, filing and processing of the Map shall be reimbursed by
▇▇▇▇▇▇▇ to Company from time to time within thirty (30) days after demand
therefor from Company, accompanied by reasonable supporting documentation
of such costs and expenses.
7.03. PROCEDURE FOR EXECUTING NEW GROUND LEASE. Within five (5) days
following the Termination Date pursuant to Sections 3.01(a), (b), or (c) if such
termination occurs concurrently with termination of the Master Lease, ▇▇▇▇▇▇▇
shall execute, date and deliver to Company, three copies of the New Ground
Lease, together with (i) all payments which may then be due and payable under
this Agreement through the Termination Date, including, without limitation, the
AIS Purchase Price, and (ii) all payments due and payable under the New Ground
Lease as of the commencement date of the New Ground Lease. Company shall, as
soon as reasonably possible thereafter, execute the three copies of the New
Ground Lease tendered by ▇▇▇▇▇▇▇ and return one fully executed copy to ▇▇▇▇▇▇▇.
7.04. TERMINATION OF AGREEMENT. In the event of any breach or violation by
▇▇▇▇▇▇▇ of any provision of this Agreement which is not cured within the time
period specified for such cure in Section 8.01, then Company, in addition to any
other rights or remedies it may have hereunder or by law or equity, shall have
no further obligation hereunder to enter into the New Ground Lease, and
thereafter Company shall have no further liability or responsibility under this
Article VII.
7.05. NO ASSIGNMENT. ▇▇▇▇▇▇▇ may not assign its rights under this Agreement
without the express prior written consent of Company, which consent may be
withheld by Company in its sole discretion. Any such attempted assignment made
in violation of this Section 7.05 shall be null and void.
7.06. PROHIBITION AGAINST RECORDATION. ▇▇▇▇▇▇▇ shall not cause or allow
this Agreement or a short form memorandum or assignment hereof to become of
record in any public office without Company's prior written consent, which
consent may be withheld in Company's sole discretion.
7.07. ACCEPTANCE OF PREMISES. The parties acknowledge that ▇▇▇▇▇▇▇ is
currently in possession of the Subleased Premises, that ▇▇▇▇▇▇▇ has made certain
improvements thereon including the construction of the Amphitheater and related
facilities, and that in the course of such possession and activities ▇▇▇▇▇▇▇ has
become fully familiar with the condition of the Subleased Premises. ▇▇▇▇▇▇▇ has
made such investigation of title to the Subleased Premises as it deems
appropriate and has entered into this Agreement without representation or
warranty as to title as of the date hereof or any subsequent date. ▇▇▇▇▇▇▇
acknowledges that Company has retained in the Master Lease the right to convey
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easements and other interests in the Subleased Premises for the term of the
Master Lease and enters into this Agreement subject to all such easements and
interests which Company may reasonably grant during the remaining term of the
Master Lease, and all such other conditions as may be contained in the Master
Lease. ▇▇▇▇▇▇▇ shall take its leasehold interest in the Subleased Premises
subject to matters then of record or apparent. ▇▇▇▇▇▇▇ acknowledges and agrees
that except as expressly provided in this Agreement or the New Ground Lease, (i)
▇▇▇▇▇▇▇ has satisfied itself as to the condition of the Subleased Premises and
its suitability for the purposes intended by ▇▇▇▇▇▇▇ (including, but not limited
to, soil and geological conditions, drainage, acreage, topography, climate, air,
mineral or water rights, access, grading or other site work, utilities, title
condition, private or governmental use restrictions, present or future zoning,
subdivision, coastal or environmental regulations, or the necessity or
availability of any governmental approvals for the sale, use or development of
the Subleased Premises or any litigation or other formal controversy concerning
any or all of the above); (ii) that ▇▇▇▇▇▇▇ will lease the Subleased Premises
"AS IS," in its then present state and condition; and (iii) that ▇▇▇▇▇▇▇ will
rely solely upon its own inspection and investigations and not upon any
representation, warranty, statement, study, report, description, guideline or
other information or material made or furnished by Company or its
representatives, whether written or oral, express or implied, of any nature
whatsoever regarding any of the foregoing matters.
7.08. GOVERNMENTAL PERMITS. So long as ▇▇▇▇▇▇▇ is not in breach of any
provision of this Agreement, it may elect at any time and at its sole cost and
expense to apply for and obtain any or all approvals required from the
applicable governmental authorities having jurisdiction, for the purpose of
developing the Subleased Premises for purposes permitted by the Sublease or the
New Ground Lease. Prior to submitting any applications, proposals, plans,
exhibits, maps, reports, requests, questionnaires, responses or other documents
(collectively, the "Documents") to any governmental agency, ▇▇▇▇▇▇▇ shall first
obtain Company's prior written approval in concept of all development proposals
for the Subleased Premises contemplated under such Documents and thereafter
shall submit to Company copies of all such Documents for the review and
information of the Company. Company shall be deemed to have given its approval
in concept of all such matters unless it shall give ▇▇▇▇▇▇▇ written notice
within thirty (30) days after receipt thereof specifying in reasonable detail
each item which Company disapproves.
ARTICLE VIII
DEFAULTS AND REMEDIES
8.01. DEFAULTS. The occurrence and subsequent failure to cure within the
specified cure period, if any, of any one or more of the following events shall
constitute an event of default under this Agreement:
10
(a) The failure of ▇▇▇▇▇▇▇ to submit any Annual Projection, quarterly
update or closing annual report as required by Section 6.03 when due, provided
that Company shall give ▇▇▇▇▇▇▇ ten (10) days' prior written notice of such
failure before taking any remedy for such default.
(b) The failure of ▇▇▇▇▇▇▇ to pay any amount as required by this Agreement,
within ten (10) days after written notice by Company to ▇▇▇▇▇▇▇ of such failure.
(c) The breach of any representation or warranty made herein by ▇▇▇▇▇▇▇ or
any person executing this Agreement on behalf of ▇▇▇▇▇▇▇ without any requirement
of cure period or the giving of notice of default prior to Company seeking a
remedy therefor.
(d) The failure of ▇▇▇▇▇▇▇ to observe or perform any term, covenant,
promise or agreement on its part to be observed or performed under this
Agreement, the Sublease or any other document, instrument or agreement
incorporated herein by reference, other than a default as specified in (a), (b)
or (c) above, which failure shall continue for a period of thirty (30) days
after written notice thereof from Company to ▇▇▇▇▇▇▇; provided, however, that if
the nature of ▇▇▇▇▇▇▇' default is such that more than thirty (30) days are
reasonably required for its cure, then ▇▇▇▇▇▇▇ shall not be deemed in default if
▇▇▇▇▇▇▇ shall commence such cure within such thirty (30) day period and
thereafter diligently prosecute such cure to completion.
(e) (i) The making by ▇▇▇▇▇▇▇ of any general assignment for the benefit of
creditors; (ii) the filing by or against ▇▇▇▇▇▇▇ of a petition to have ▇▇▇▇▇▇▇
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
▇▇▇▇▇▇▇, the same is dismissed within ninety (90) days); (iii) the appointment
of a trustee or receiver to take possession of substantially all of ▇▇▇▇▇▇▇'
assets located at the Subleased Premises or of tenant's interest in the Sublease
or this Agreement, where possession is not restored to ▇▇▇▇▇▇▇ within thirty
(30) days; (iv) the attachment, execution or other Judicial seizure of
substantially all of ▇▇▇▇▇▇▇' assets located at the Subleased Premises or of
▇▇▇▇▇▇▇' interest in the Sublease or this Agreement whether such seizure is not
discharged within ninety (90) days; or (v) ▇▇▇▇▇▇▇' convening of a meeting of
its creditors or any class thereof for the purpose of effecting a moratorium
upon or composition of its debts.
8.02. REMEDIES.
(a) Upon any event of default as defined in Section 8.01 above, Company
may, in addition to the exercise of any remedy available to it at law or equity:
(i) terminate this Agreement in the manner provided in Section 7.05; (ii)
terminate the Sublease if Company is the Sublessor at the time of default, or
if notice of default is required hereunder, at the time such notice of default
is given; and (iv) take any other action or remedy as provided elsewhere in this
Agreement.
11
(b) An termination of this Agreement shall not relieve ▇▇▇▇▇▇▇ from payment
of any sum due and owing pursuant to Section 4.02, and the remaining balance of
such AIS Purchase Price shall be immediately due and payable by ▇▇▇▇▇▇▇ to
Company. Any termination of this Agreement shall not relieve ▇▇▇▇▇▇▇ from any
claim for damages accruing against ▇▇▇▇▇▇▇ under this Agreement, and any such
termination shall not prevent Company from enforcing the payment of any such
claim for damages by any remedy provided for by law, or from recovering damages
from ▇▇▇▇▇▇▇ for any default hereunder. All rights and remedies of Company
contained in this Agreement shall be construed to any cumulative, and no one of
them shall be exclusive of the other, and Company shall have the right to pursue
any one or all of such remedies or any other remedy or relief which may be
provided by law, whether or not stated in this Agreement. No waiver by Company
of a breach of any of the covenants, conditions or restrictions of this
Agreement shall be construed or held to be a waiver of any succeeding or
preceding breach of the same or any other covenant, condition or restriction
herein contained.
ARTICLE IX
OFFSITE IMPROVEMENTS
9.01. OFFSITE IMPROVEMENTS. The parties acknowledge and agree that all
Offsite Improvements (as defined in the Purchase Agreement) have been completed
and the costs thereof allocated and paid by ▇▇▇▇▇▇▇ and Company in accordance
with the Purchase Agreement.
ARTICLE X
ASSIGNMENT AND HYPOTHECATION
10.1. HYPOTHECATION.
(a) Notwithstanding any other provision of this Agreement to the contrary,
▇▇▇▇▇▇▇ shall have the right, subject to Company's written consent, which
consent shall not be unreasonably withheld, to execute, acknowledge and deliver
an assignment, mortgage, deed of trust or other instrument hypothecating all or
any portion of its interest In this Agreement to secure any bona fide loan or
loans to ▇▇▇▇▇▇▇; provided, however, that any such encumbrance shall be subject
and subordinate to all of Company's rights, title and interest in and to the
Subleased Premises and Company's rights under this Agreement. Any such mortgage
or deed of trust or assignment shill specifically provide: (i) that in the event
of a default by ▇▇▇▇▇▇▇ thereunder, Company shall have the right at its option
(but shall not be required) to cure such default; and (ii) that no action shall
be taken by the lender to foreclose upon any such mortgage, deed of trust or
assignment until at least thirty (30) days after such lender shall have notified
Company in writing of any default by ▇▇▇▇▇▇▇ at the address specified herein for
12
notices or otherwise designated by Company to said lender. The rights of any
such encumbrancer shall be subject to all of the terms and provisions of this
Agreement (as the same may be amended from time to time). The making of any such
encumbrance shall not relieve ▇▇▇▇▇▇▇ of any obligation or liability hereunder
and shall not render any such encumbrancer liable to perform or satisfy any of
the terms or provisions of this Agreement unless such encumbrancer acquires, by
foreclosure or otherwise, ▇▇▇▇▇▇▇' interest hereunder, in which case it shall be
liable for the performance of the terms and provisions hereof to be performed by
▇▇▇▇▇▇▇ during the term of this Agreement, including, without limitation, the
payment of interest as provided herein on any sums that are required to be paid
by ▇▇▇▇▇▇▇ under this Agreement. Any purchaser of ▇▇▇▇▇▇▇' interest hereunder
upon foreclosure or under power of sale shall succeed to the rights of ▇▇▇▇▇▇▇
hereunder, including possession of the Subleased Premises, and shall be liable
for the performance of the terms and provisions hereof to be performed by
▇▇▇▇▇▇▇ during the term of this Agreement. ▇▇▇▇▇▇▇ shall furnish Company at the
time of such encumbrance a complete copy of all documents and agreements
evidencing such encumbrance or executed in connection therewith.
(b) Company shall not have any obligation to deliver to ▇▇▇▇▇▇▇'
encumbrancer any notices delivered by Company hereunder unless and until Company
shall receive a request for such notices from the encumbrancer together with the
encumbrancer's address for notices.
10.02. ASSIGNMENT.
(a) Except as provided in Section 10.01, ▇▇▇▇▇▇▇ shall not either
voluntarily or involuntarily, by operation of law, under legal process, through
receivership or bankruptcy, or otherwise in any manner assign, sell, encumber,
pledge or otherwise transfer all or any part of ▇▇▇▇▇▇▇' interests
(collectively, "Assignment") under this Agreement without Company's prior
written consent in each instance, which consent may be withheld by Company in
its sole discretion without reference to any objective standard or any standard
of good faith or fair dealing applied to the facts and circumstances of any
withholding of consent by Company, it being the express understanding of the
parties that the identity of ▇▇▇▇▇▇▇ and its principals is a material and
determining factor in Company's willingness to enter this Agreement and that
Company would not enter this Agreement but for ▇▇▇▇▇▇▇' agreement to limit
assignments as herein provided. The hypothecation, sale, assignment or other
transfer (whether voluntary or involuntary, by operation of law, under legal
process, through receivership or bankruptcy, or otherwise in any manner) of (i)
any partnership interests in ▇▇▇▇▇▇▇ in the aggregate in excess of twenty-five
percent (25%), or (ii) any portion of the partnership interest of ▇▇▇▇▇▇ & ▇▇▇▇,
Inc, a California corporation, IMA Investment Corporation, a California
Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., a California corporation, or ▇▇▇▇ ▇▇▇▇▇▇▇ in
▇▇▇▇▇▇▇, or (iii) any interest of ▇▇▇▇▇▇ ▇. ▇▇▇▇ in IMA Investment Corporation,
or ▇▇▇▇▇▇ ▇▇▇▇▇ in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in ▇▇▇▇▇▇ & ▇▇▇▇,
Inc., shall be deemed an Assignment within the meaning of this Section 10.02.
▇▇▇▇▇▇▇ hereby represents and warrants that the copies of its partnership
agreement previously delivered to Company are true,
13
correct and complete copies and accurately reflect the partnership interests of
each partner therein. ▇▇▇▇▇▇▇ agrees to reimburse Company for Company's
reasonable costs and attorneys' fees incurred in connection with the processing
and documentation of any requested assignment, transfer, or hypothecation of
this Agreement or ▇▇▇▇▇▇▇' interests hereunder. Any attempted assignment made
in violation of this Section 10.02 shall be null and void, it being the intent
of the parties that ▇▇▇▇▇▇▇ shall have nether the right nor the power to make an
assignment in violation of this Section.
(b) If the above limitation on ▇▇▇▇▇▇▇' right to assign any interest
hereunder is declared or rendered unenforceable or invalid for any reason or to
any extent, then the parties agree that Paragraph 5(b)(i) of the New Ground
Lease shall be amended to provide for the payment of Percentage Rent in the
amount, if any, by which fifteen percent (15%) Of Tenant's Gross Sales during a
Lease Year exceeds the Minimum Rent paid by Tenant for such period.
ARTICLE XI
MISCELLANEOUS
11.01. SEPARABILITY. Any provision of this Agreement which shall prove to
be invalid, void or illegal shall In no way affect, impair or invalidate any
other provision hereof, and such remaining provisions shall remain in full force
and effect.
11.02. LATE PAYMENTS. Except as otherwise specifically provided in this
Agreement, any amount due from ▇▇▇▇▇▇▇ to Company hereunder which is not paid to
Company when due shall bear Interest at the lesser of 18% per annum or the
maximum rate of interest then permitted by applicable usury law, accruing from
the date due until the same is fully paid. Payment of such interest shall not
excuse or cure any default by ▇▇▇▇▇▇▇.
11.03. TRIAL WITHOUT JURY.
▇▇▇▇▇▇▇ AND COMPANY EACH ACKNOWLEDGE THAT IT HAS HAD THE ADVICE OF COUNSEL
OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL BY JURY UNDER THE
CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF CALIFORNIA. EACH PARTY
EXPRESSLY AND KNOWINGLY WAIVES AND RELEASES ALL SUCH RIGHTS TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE
OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT
AND/OR ANY CLAIM OF INJURY OR DAMAGE.
/s/ [ILLEGIBLE]
-------------------------------- ---------------------------------
Meadow's Initials Company's Initials
14
11.04. TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Agreement in which time of performance is
a factor.
11.05. HEADINGS. The article and section captions contained in this
Agreement are for convenience only and shall not be considered in the
construction and interpretation of any provision hereof.
11.06. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Agreement and
the Exhibits hereto contain all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Agreement, and all
preliminary negotiations, agreements or understandings pertaining to any such
matter, except those contained herein, shall not be effective for any purpose.
▇▇▇▇▇▇▇ acknowledges that Company has made no representations, promises or
guarantees, either by verbal statement or by its conduct, upon which ▇▇▇▇▇▇▇ has
relied except for those that are expressly contained in this Agreement or in any
exhibit attached hereto. No person, firm or corporation has at any time had any
authority from Company to make any representations on behalf of Company. No
verbal agreement or implied covenant shall be held to vary the provisions
hereof, any statute, law or custom to the contrary notwithstanding. No provision
of this Agreement may be amended or added to except by an agreement in writing
signed by the parties hereto or their respective successors in interest.
11.07. NOTICES. Any notice, consent or approval ("notice") required or
permitted to be given hereunder shall be in writing and may be served personally
or by mail. If served by mail it shall be addressed to ▇▇▇▇▇▇▇ or Company, as
the case may be, as follows:
To Company: Irvine Industrial Company
c/o The Irvine Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President-Operations
With copy to: The Irvine Company
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attn: General Counsel
and: O'Melveny & ▇▇▇▇▇
Suite 1700
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
15
To ▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Amphitheater
c/o The ▇▇▇▇ Company
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇▇▇▇
With copy to: ▇▇▇▇▇▇ & ▇▇▇▇, Inc.
▇/▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
345 No. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Good, ▇▇▇▇▇▇▇, Hegness & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any notice which is personally served shall be effective upon service; any
notice given by mail shall be deemed effectively given three (3) days after
deposit in the United States mail, registered or certified, postage prepaid and
addressed as specified above. Either party may by written notice to the other
from time to time specify a different address for notice purposes.
11.08. BROKERS. Meadow warrants that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this Agreement or
the Option contained herein, and hereby expressly agrees and covenants to hold
Company harmless and to defend Company from any claims, threatened or asserted,
by any broker, finder or agent claiming under or through ▇▇▇▇▇▇▇ in connection
with the negotiation and execution of this Agreement.
11.09. WAIVERS. No waiver of any provision of this Agreement shall be
deemed to be a waiver of any other provision hereof. Consent to or approval of
any act by one of the parties hereto shall not be deemed to render unnecessary
the obtaining of such party's consent to or approval of any subsequent act.
11.10. LIENS.
(a) ▇▇▇▇▇▇▇ shall do all things reasonably necessary to prevent the filing
of any mechanics' or other liens against the Subleased Premises or any part
thereof by reason of work, labor, services or materials supplied or claimed to
have been supplied to ▇▇▇▇▇▇▇, or anyone holding the Subleased Premises, or any
part thereof, through or under ▇▇▇▇▇▇▇. If any such lien shall at any time be
filed
16
against the Subleased Premises, ▇▇▇▇▇▇▇ shall either cause the same to be
discharged of record within twenty (20) days after the date of filing of the
same or, if ▇▇▇▇▇▇▇ in its discretion and in good faith determines that such
lien should be contested, shall furnish such security as may be necessary or
required to (i) prevent any foreclosure proceedings against the Subleased
Premises during the pendency of such contest, and (ii) cause Ticor Title
Insurance Company or other mutually satisfactory title company to remove such
lien as a matter affecting title to the Subleased Premises on a preliminary
title report or title policy issued with respect to the Subleased Premises.
(b) Nothing contained herein shall imply any consent or agreement on the
part of Company to subject Company's estate to liability under any mechanics' or
other lien law. ▇▇▇▇▇▇▇ shall give Company adequate opportunity and Company
shall have the right to post such notices of non-responsibility as are provided
for in the mechanics' lien laws of California.
11.12. SUBORDINATION. This Agreement may, at Company's option, be
subordinate to any mortgage or deed of trust that may exist or hereafter be
placed upon the Subleased Premises or any part thereof and to any and all
advances to be made thereunder and to the interest thereon and to all renewals,
replacements and extensions thereof. ▇▇▇▇▇▇▇ shall, upon written demand by
Company, execute such instruments as may be required at any time and from time
to time to subordinate the rights and interests of ▇▇▇▇▇▇▇ under this Agreement
to the lien of any such mortgage or deed of trust, or if requested by Company,
to subordinate any such mortgage or deed of trust to this Agreement; provided,
however, that ▇▇▇▇▇▇▇ shall, in the event any proceedings are brought for the
foreclosure of any such mortgage or deed of trust, attorn to the purchaser upon
foreclosure sale or sale under power of sale, and shall recognize said purchaser
as the holder of Company's interests under this Agreement, and so long as
▇▇▇▇▇▇▇ is not in default hereunder, such foreclosure shall not terminate this
Agreement or otherwise affect ▇▇▇▇▇▇▇' rights hereunder. Upon the written
request of ▇▇▇▇▇▇▇, Company shall use its best efforts to obtain from any such
encumbrancer an instrument in form reasonably required by such encumbrancer in
recordable form providing that so long as ▇▇▇▇▇▇▇ is not in default hereunder,
no foreclosure, sale under power of sale or deed in lieu of foreclosure under
such encumbrance shall terminate this Agreement or otherwise affect ▇▇▇▇▇▇▇'
rights hereunder.
11.13. FORCE MAJEURE. Each party hereto shall be excused from performing
any of its respective obligations or undertakings provided in this Agreement for
so long as the performance of such obligation is prevented or delayed by an act
of God, fire, earthquake, flood, explosion, extraordinary actions of the
elements, war, invasion, insurrection, riot, mob violence, sabotage, general
shortage of materials in the open market, failure of transportation, strike or
lockout. The foregoing shall not, however, apply to any obligation of either
party to pay money under any provision of this Agreement.
17
11.14. PARTNERSHIP AUTHORITY. Each individual executing this Agreement on
behalf of ▇▇▇▇▇▇▇ represents and warrants that the execution and delivery of
this Agreement on behalf of ▇▇▇▇▇▇▇ is duly authorized, is in accordance with
its partnership agreement and that this Agreement is binding upon ▇▇▇▇▇▇▇ in
accordance with its terms.
11.15. SAFETY AND HEALTH. ▇▇▇▇▇▇▇ covenants at all times during the term of
this Agreement to comply with the requirements of the Occupational Safety and
Health Act of 1970, 29 U.S.C. Section 651 et seq. and any analogous legislation
in California (collectively, the "Act"), to the extent that the Act applies to
the Subleased Premises and any activities thereon. Without limiting the
generality of the foregoing, ▇▇▇▇▇▇▇ covenants to maintain all working areas,
all machinery, structures, electrical facilities and the like upon the Subleased
Premises in a condition that fully complies with the requirements of the Act,
including such requirements as would be applicable with respect to agents,
employees or contractors of Company who may from time to time be present upon
the Subleased Premises. ▇▇▇▇▇▇▇ agrees to defend, indemnify and hold harmless
Company from any liabilities, claims or damages arising as a result of a breach
of the foregoing covenant and from all costs, expenses and charges arising
therefrom including, without limitation, attorneys' fees and court costs
incurred by Company in connection therewith.
11.16. HAZARDOUS MATERIALS. ▇▇▇▇▇▇▇ shall not engage in any activity on or
about the Subleased Premises that violates any environmental law, and shall
promptly, at Meadow's sole cost and expense, take all investigatory and/or
remedial action required or ordered by any governmental agency or environmental
law for clean-up and removal of any contamination involving any hazardous
materials created or caused directly or indirectly by ▇▇▇▇▇▇▇. The term
"environmental law" shall mean any federal, state or local law, statute,
ordinance or regulation pertaining to health, industrial hygiene or the
environmental conditions on, under or about the Subleased Premises, including,
without limitation, (i) the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ("CERCLA"), 42 U.S.C., ss.9601 et seq.; (ii) the
Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C., ss.6901 et
seq.; (iii) California Health and Safety Code, ss.25100 et seq.; (iv) The Safe
Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety
Code, ss.25249.5 et seq.; (v) the Federal Water Pollution Control Act, 33
U.S.C., ss.1317 et seq.; (vi) California Water Code, ss.1300 et seq.; and
(vii) California Civil Code, ss.3479 et seq., as such laws are amended, and
the regulations and administrative codes applicable thereto. The term "hazardous
materials" includes, without limitation, any material or substance which is (i)
defined or listed as a "hazardous waste or "hazardous substance" or considered a
waste, condition of pollution or nuisance under the environmental laws; (ii)
petroleum or a petroleum product or fraction thereof; (iii) asbestos; and/or
(iv) substances declared by the State of California to cause cancer and/or
reproductive toxicity. It is the intent of the parties hereto to construe the
terms "hazardous materials" and "environmental laws" in their broadest sense.
▇▇▇▇▇▇▇ shall provide all notices required pursuant to the Safe
18
Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety
Code, ss.25249.5 et seq.
11.17. ENVIRONMENTAL INDEMNIFICATION. ▇▇▇▇▇▇▇ hereby agrees to indemnify,
protect, defend (with attorneys acceptable to Company), and hold harmless
Company, and any successors to all or any portion of Company's interest in the
Subleased Premises, and their respective directors, officers, partners,
employees, agents, representatives, affiliates, subsidiaries, and lenders, from
and against any and all liabilities, losses, damages (including, without
limitation, damages for loss or restriction on use of the Subleased Premises or
any improvements constructed thereon, and damages arising from any adverse
impact on marketing of the Subleased Premises, or any improvements thereon or
any space within such improvements, and diminution in the value of the Subleased
Premises, or any improvements located thereon), judgments, fines, demands,
claims, recoveries, deficiencies, costs and expenses (including, without
limitation, reasonable attorney's' fees, disbursements and charges, court costs
and other professional or consultant fees, charges and expenses), whether
foreseeable or unforeseeable, arising directly or indirectly out of the
presence, use, generation, storage, treatment, on or off site disposal or
transportation of hazardous or toxic materials, substances or wastes on, into,
from, under or about the Subleased Premises by ▇▇▇▇▇▇▇, its agents, employees,
contractors, licensees or invitees, and specifically including the cost and
expense of any required, necessary or desirable repair, restoration, clean-up
(including, without limitation, the costs of investigation, study and removal of
such materials, substances or wastes), or detoxification of the Subleased
Premises, or any improvements located thereon, and the preparation of any
closure or other required plans, whether or not such action is required,
necessary or desirable during the term of this Agreement or after expiration
thereof, except to the extent (i) caused by the active negligence or willful
misconduct of Company, (ii) caused by the migration of such materials,
substances or wastes onto or under the Subleased Premises from off site
locations, or (iii) exist on the Subleased Premises as of the Original
commencement date of the Sublease.
11.18. SURVIVAL OF INDEMNITIES. The obligations of the indemnifying party
under each and every indemnification and hold harmless provision contained in
this Agreement shall survive the expiration or earlier termination of this
Agreement to and until the last to occur of (a) the last date permitted by law
for the bringing of any claim or action with respect to which indemnification
may be claimed by the indemnified party against the indemnifying party under
such provision or (b) the date on which any claim or action for which
indemnification may be claimed under such provision is fully and finally
resolved and, if applicable, any compromise thereof or judgment or award thereon
is paid in full by we indemnifying party and the indemnified party is reimbursed
by the indemnifying party for any amounts paid by the indemnifying party in
compromise thereof or upon a judgment or award thereon and in defense of such
action or claim, including reasonable attorneys' fees incurred.
19
11.19. ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provision of this Agreement or any document, instrument or agreement
incorporated herein by reference, or to seek damages for the breach of any
provision thereof, or where any provision of this Agreement is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
11.20. NO PARTNERSHIP. Nothing contained in this Agreement is intended to
be, nor shall it be construed to be, the formation of a partnership or joint
venture between Company and ▇▇▇▇▇▇▇.
11.21. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together constitute one and the same instrument.
11.22. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
11.23. PAYMENT OF COSTS. Concurrently with the execution hereof, ▇▇▇▇▇▇▇
agrees to pay Company a sum equal to Company's attorneys' fees and charges
incurred in connection with the preparation and negotiation of this Agreement.
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, THE IRVINE COMPANY,
a California general partnership a Michigan corporation
By: IMA Investment Corporation, By:
a California corporation --------------------------------
General Partner ▇▇▇▇▇▇▇ ▇. Sim
Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By:
------------------------ --------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
President Assistant Secretary
By: ▇▇▇▇▇▇ & ▇▇▇▇, Inc.,
a California corporation
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.,
a California corporation
General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
General Partner
21
EXHIBIT A
LEGAL DESCRIPTION
"EXCLUSIVE AREA"
----------
A portion of Block 157 of the Irvine Subdivision per map filed in Book 1, Page
88 of Miscellaneous Record Maps of Orange County, California, also being a
portion of Parcel 2 of Parcel Map filed in Parcel Map Book 102, pages 30 and 31
of Parcel Maps of Orange County, being described as follows:
Beginning at the most easterly corner of said Parcel 2, said point also being on
the existing right-of-way of Irvine Center Drive; thence along said Parcel's
southeasterly boundary line South 40(degrees) 37' 51" West 1413.02 feet to the
True Point of Beginning; thence along the following courses and distances:
North 42(degrees) 59' 03" West 584.64 feet;
South 48(degrees) 58' 37" West 574.67 feet;
North 42(degrees) 54' 20" West 134.68 feet;
North 61(degrees) 19' 01" West 229.44 feet;
North 64(degrees) 24' 06" West 151.07 feet;
North 46(degrees) 55' 41" West 81.73 feet;
North 34(degrees) 57' 58" West 147.20 feet;
North 75(degrees) 05' 05" West 480.32 feet;
South 02(degrees) 12' 32" West 282.77 feet;
South 42(degrees) 12' 16" East 1073.44 feet;
to the beginning of a curve being concave to the southwest and having a radius
of 1450 feet, a radial to said point bears North 26(degrees) 20' 41" East;
thence along the arc of said curve through a central angle of 21(degrees) 03'
20" a distance of 532.86 feet; thence South 42(degrees) 35' 59" East 56.46 feet
to the southeasterly boundary line of said Parcel 2; thence along said line
North 40(degrees) 37' 51" East 1070.75 feet to the True Point of Beginning.
Said property contains 27.73 acres.
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EXHIBIT A
To Amended And Restated Agreement Re Ground Lease
Page l of 2
LEGAL DESCRIPTION
"COMMON AREA"
----------
A portion of Block 157 of the Irvine Subdivision per map filed in Book 1, Page
88 of Miscellaneous Record Maps of Orange County, California, also being a
portion of Parcel 2 of Parcel Map filed in Parcel Map Book 102, pages 30 and 31
of Parcel Maps of Orange County, being described as and bounded by the following
courses:
Beginning at the most easterly corner of said Parcel 2, said point also being on
the existing westerly right-of-way of Irvine Center Drive; thence
North 24(degrees) 49' 27" West 392.61 feet;
South 13(degrees) 09' 39" Last 158.21 feet;
to the beginning of a curve concave westerly and having a radius of 110.00 feet;
thence &lons the are of said curve through a central angle 600 45' 23" a
distance of 116.64 feet; thence South 47(degrees) 35' 44" West 175.24 feet, to
the beginning of a curve concave Northerly having a radius of 85.00 feet thence
along the arc of said curve through a central angle of 112(degrees) 29' 09" a
distance of 166.88 feet; thence North 19(degrees) 55' 07" West 726.21 feet;
thence
South 70(degrees) 04' 53" West 239.09 feet;
North 43(degrees) 01' 39" West 527.07 feet;
South 47(degrees) 04' 52" West 855.98 feet;
South 42(degrees) 55' 08" East 225.75 feet;
South 24(degrees) 51' 44" East 986.12 feet;
South 42(degrees) 59' 03" East 584.64 feet to
the southeast boundary line of said Parcel 2; thence along said line North
40(degrees) 37' 51" East 1413.02 feet to the Point of Beginning.
Said property is the lease ground known as the "Common Area" and contains 42.62
acres.
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EXHIBIT A
To Amended And Restated Agreement Re Ground Lease
Page 2 of 2
EXHIBIT C
GROUND LEASE
by and between
THE IRVINE COMPANY
as Landlord
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
as Tenant
_____________, 199__
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EXHIBIT C
To Amended And Restated Agreement Re Ground Lease
GROUND LEASE
SUMMARY OF BASIC LEASE PROVISIONS
1. PREMISES: A portion of Block 157 in the Irvine
Subdivision, County of Orange, State of
California, commonly known as the "▇▇▇▇▇▇
▇▇▇▇▇▇▇ Amphitheater" and more particularly
described and depicted in Exhibit A and
Exhibit B of this Ground Lease.
2. USE OF PREMISES: Occupancy and operation of an amphitheater
under the trade name "▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Amphitheater" for the purposes of presenting
musical and other entertainment events,
together with related concession food and
beverage services (including sale of
alcoholic beverages), and the sale of
merchandise associated with use of the
amphitheater.
3. LEASE TERM: Twenty (20) years or 240 months, plus any
period between the Commencement Date and
March 1, 1997.
4. COMMENCEMENT DATE: __________________________(determined in
accordance with Section 7.01 of the Amended
and Restated Agreement re Ground Lease dated
October 1, 1991)
5. EXPIRATION DATE: February 28, 2017
6. MINIMUM RENT: $58,333.33 per month payable in advance on
the first day of each month, except for any
period from the Commencement Date to March
1, 1997 when the rent shall be five percent
(5%) of Ticket Sales.
7. PERCENTAGE RENT: From and after March 1, 1997, to the extent
greater than Minimum Rent, the greater of
(a) five percent (5%) of Gross Sales from
Amphitheater operations (including ticket
sales, parking, food and beverage sales, and
merchandise sales); or
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(b) twenty-five percent (25%) of Net
Cash Flow from all Amphitheater
operations computed before debt
service or ground rent.
8. RENTAL ADJUSTMENT: Minimum Rent adjusted each five (5) years,
commencing with the first such adjustment on
March 1, 2002 for the immediately preceding
five (5) year period, to reflect CPI
increases or decreases, subject to an annual
floor of 3% and an annual ceiling of 5%.
9. PREMISES SIZE: 70.35 acres total
Exclusive Area: 27.73 acres
Common Area: 42.62 acres
10. BROKERS: None
11. ADDRESS FOR PAYMENTS AND NOTICES:
Irvine Industrial Company
c/o THE IRVINE COMPANY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President-Operations
Irvine Industrial Company
c/o THE IRVINE COMPANY
▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
In the event of any conflict or ambiguity between this Summary of Basic Lease
Provisions and the Ground Lease to which it is attached, the provisions of the
Ground Lease shall govern.
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GROUND LEASE
This GROUND LEASE (the "Lease") is made this ______ day of __________,
199__, between THE IRVINE COMPANY, a Michigan corporation ("Landlord"), and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a California general partnership ("Tenant"). Landlord hereby
leases to Tenant and Tenant hereby rents from Landlord the following described
premises (the "Premises"), subject to all matters of record or apparent, upon
the following terms and conditions.
1. LEASED PREMISES.
(a) For and in consideration of the rents to be paid and the covenants
and conditions to be kept and performed by Tenant, Landlord leases to
Tenant, and Tenant hires from Landlord, that certain real property
described in Exhibit A and depicted on Exhibit B, each attached hereto and
incorporated herein by this reference (said real property and all
improvements from time to time constructed thereon being hereinafter
referred to as the "Premises"). The Premises totals approximately 70.35 net
acres and is composed of two portions designated in Exhibit A and B as the
"Exclusive Area" (approximately 27.73 acres) and the "Common Area"
(approximately 42.62 acres).
(b) Tenant's right, title and interest in the Common Area shall
consist of the right to use said portion Of the Premises for the sole
purpose of (i) providing to Tenant and its customers, licensees and
business invitees vehicular and pedestrian ingress to and egress from the
parking area over the existing driveway from Irvine Center Drive, (ii)
establishing, maintaining and operating parking toll booths for the
collection of fees charged by Tenant to its customers, licensees and
business invitees for use of the parking area, and (iii) use of the
existing parking area. Tenant shall have no right to charge any fee to any
person utilizing the driveway or parking area other than in connection
with the Amphitheater, and shall have no right to charge any fee to any
customer, licensee or business invitee of any person or entity to which
Landlord has or will in the future grant any right or license to
non-exclusive use of the Common Area.
(c) Tenant acknowledges that Landlord has granted and conveyed to The
Splash, a California limited partnership, certain non-exclusive rights to
use portions of the Common Area for parking, ingress and egress in
connection with the operation of a water theme amusement park, and that
such right and license in not inconsistent with the rights granted Tenant
herein.
2. RESERVATIONS. Landlord hereby reserves the following interests in
the Premises:
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(a) Nonexclusive easements on, over, under or across those portions of
the Premises not improved with buildings or other structures in existence
on the date of this Lease or thereafter constructed in conformity with site
plans duly submitted by Tenant and approved by Landlord as provided herein,
for the installation, emplacement and maintenance of electric, gas,
telephone, data transmission, cable television, water, sanitary sewer
lines, drainage facilities or any other utilities, together with the right
to enter upon the Premises (without unreasonably interfering with Tenant's
reasonable use and enjoyment thereof) in order to service, maintain,
repair, reconstruct, relocate or replace any of such utilities, lines or
other facilities.
(b) Nonexclusive easements on, over, under or across the Premises
within twenty (20) feet from all property lines bordering on and parallel
to any public or private street for the installation, emplacement,
replacement, repair, operation and maintenance of any such utilities, lines
or other facilities.
(c) Landlord reserves the right to grant and convey to other persons
or entities non-exclusive easements or licenses for use of the Common Area
for parking and ingress to and egress from the parking area from Irvine
Center Drive; provided, however, that no right or license shall be granted
to any other person or entity by Landlord which is inconsistent with the
rights granted to Tenant herein.
3. TERM. As used in this Lease the word "term" shall mean the entire
period of time this Lease is in effect, including, but not limited to, any
permitted or agreed extension of the original term of the Lease. The term of
this Lease shall commence on the Commencement Date as set forth in Item 4 of the
Basic Lease Provisions, and end on the Expiration Date, subject, however, to
earlier termination as provided in this Lease. The parties shall execute and
Landlord shall record a Ground Lease (Short Form Memorandum) in the form
attached hereto as Exhibit C or a substantially similar form as is in common use
by Landlord at the time of the Commencement Date.
4. COMMENCEMENT OF RENTAL AND TAXES. Tenant's obligation for the
payment of rental as set forth in Paragraph 5 below, and taxes as provided in
Article 3 of the General Conditions to Ground Lease attached hereto and made a
part hereof (the "General Conditions"), and all other payments required
hereunder, shall commence on the Commencement Date.
5. RENTAL. Tenant agrees to pay (in lawful money of the United States
of America) to Landlord at the address set forth in the Summary of Basic Lease
Provisions (or to such other person or entity, or at such other place, as may
from time to time be designated by Landlord in writing), without deduction or
offset and without prior demand therefore, at the times and in the manner as
hereinafter
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provided, as rental for the use and occupancy of the Premises during the term of
this Lease, the following sums:
(a) MINIMUM RENT.
(i) Amount. From and after the Commencement Date until February
28, 1997, Minimum Rent shall be five percent (5%) of Ticket Sales (defined
below), payable on or before the fifteenth (15th) day following each calendar
month during said period. From and after March 1,1997 for the balance of the
Lease Term, Tenant shall pay to Landlord, in advance, for each month during the
Lease term as "Minimum Rent' the sum of Fifty-Eight Thousand Three Hundred
Thirty-Three and 33/100 Dollars ($58,333.33).
(ii) Payment. Minimum Rent shall be payable on or before the
first day of each calendar month. Minimum Rent for any fractional part of a
calendar month at the beginning or end of the Lease term shall be a
proportionate part of the Minimum Rent for a full calendar month and shall be
payable, with respect to any fractional month at the beginning of the term, upon
execution of this Lease by Tenant and, with respect to any fractional month at
the end of the term, upon the first day of such month.
(b) PERCENTAGE RENT.
(i) Amount. In addition to the Minimum Rent, from and after March
1, 1997 Tenant shall pay to Landlord, for each calendar year or partial calendar
year during the Lease Term, as "Percentage Rent", the amount, if any, by which
the greater of the following exceeds Minimum Rent paid by Tenant during such
period:
(A) Five percent (5%) of Tenant's Gross Sales (as
hereinafter defined) ("Gross Sales Participation"); or
(B) Twenty-five percent (25%) of Tenants Net Cash Flow (as
hereinafter defined) ("Net Cash Flow Participation").
(ii) Payment. On or before the fifteenth (15th) day following
each calendar month during the Lease term, Tenant shall pay to Landlord, on
account of such Percentage Rent, the amount, if any, by which the greater Of (A)
Gross Sales Participation, or (B) Net Cash Flow Participation for the preceding
calendar month, exceeds the Minimum Rent paid by Tenant for such calendar month.
Promptly upon Tenant's submission pursuant to Paragraph 8(b) of its annual
certified report of Gross Sales and Net Cash Flow, the parties shall make any
adjustment necessary to place the Percentage Rent on a calendar year basis, with
Tenant paying any additional amount due to Landlord concurrently with delivery
of such report or with Landlord crediting first to Minimum Rent and then to
Percentage Rent thereafter becoming due from Tenant, the amount by which
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sums actually paid by Tenant hereunder exceed the amount of Percentage Rent due
from Tenant for such calendar year or partial calendar year.
(iii) Definition of Gross Sales.
(A) The term Gross Sales as used herein means the entire
amount collected by Tenant, or any entity affiliated with, controlled
by or under common control with Tenant, directly or indirectly, or in
which Tenant, or any of its partners, or any entity affiliated with,
controlled by or under common control with Tenant, own any interest
therein of any nature (whether wholly or partly for cash or on credit,
for barter or other disposition of value) for all food and beverage
sales, merchandise sold, services performed, or for licenses, tickets
of admission, parking charges, or other privileges of attendance or
use of the Premises, or for the extension of credit therefor
(collectively, "Products") in, at or from any part of the Premises, or
through the substantial use of the Premises, by Tenant or anyone
acting on Tenant's behalf or under a sublease, license or concession
from Tenant, including, without limiting the generality of the
foregoing, the amount allowed upon any returns, refunds, exchanges or
"trade-ins," the retail price of any Product delivered on redemption
of trading stamps or other promotional consideration issued by or on
behalf of Tenant or its sublessees, licensees or concessionaires, and
all deposits not refunded to purchasers, all without deduction in any
case for uncollected or uncollectible credit accounts. There shall
also be included in Gross Sales the gross receipts from all
electronic, mechanical or other vending devices which are engaged in
the sale of Products. Every transaction on a deferred payment basis
shall be treated as a sale for the full price at the time such
transaction is entered into, irrespective of the time for payment or
the time when title passes.
(B) The term Gross Sales as used herein shall not include
(or, if included, there shall be deducted to the extent of such
inclusion) the following: (1) the amount of any cash or credit refund
in fact made upon sales of Products, where the Products sold or some
part thereof is returned by the purchaser and accepted by Tenant, (2)
sales of fixtures or equipment after their substantial use in the
conduct of Tenant's business on the Premises, or (3) the amount of
any sales, luxury or excise taxes on sales of Products, where such
taxes are both added to the selling price (or absorbed therein) and
paid to the taxing authorities by Tenant (but not by any vendor of
Tenant).
(C) If Tenant's Gross Sales are required to be reported on
any federal, state or municipal sales tax return or any other similar
form of return, and Gross Sales as so reported on any of said returns
(adjusted to the Lease definition of Gross Sales) shall exceed the
Gross Sales as reported by Tenant, as herein provided, then the Gross
Sales shall be taken at the highest figure so reported (adjusted to
the Lease definition of Gross Sales). If any governmental authority
shall increase the Gross Sales
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reported by Tenant on any such tax return, after audit, for any
calendar year or partial calendar year for which such sales have been
reported, then Tenant shall promptly notify Landlord of such increase
and pay any additional Percentage Rent due at that time. Tenant shall
also pay at that time interest on any such additional Percentage Rent
at the rate determined under Section 21.3 of the General Conditions,
accurring from the date when the full payment should originally have
been made. For purposes of this subparagraph, Gross Sales shall mean,
if Tenant reports sales from more than one location on any such
return, only that portion of the Gross Sales reported as relate to the
Premises, adjusted to the Lease definition of Gross Sales.
(iv) Definition of Net Cash Flow. The term Net Cash Flow shall be
calculated on a Lease Year basis and shall be defined as:
(A) The total calendar year Gross Sales of Tenant, excluding
receipts which are (1) ownership capital contributions to Tenant, and
(2) proceeds of loans obtained by Tenant, less the sum of:
(B) All cash operating expenses of Tenant incurred and paid
in such calendar year, excluding (1) any expense not involving a cash
expenditure, such as depreciation, (2) principal and interest payments
made or accrued by Tenant ("Debt Payments") in such calendar year on
account of loans of any kind or nature obtained by or on behalf of
Tenant, and (3) payments of Percentage Rent.
(C) In no event shall Net Cash Flow for any period be a
negative number which might be offset against earlier or later
positive Net Cash Flow or require an offsetting payment by Landlord to
Tenant.
(v) Definition of Ticket Sales. All gross receipts derived from
the sale of tickets of admission to the Amphitheater (whether made by Tenant or
any of its subtenants, licensees or concessionaires.
6. RECORDS. Tenant shall keep and maintain, and shall require its
subtenants, licensees and concessionaires, if any, to keep and maintain, at the
Premises or at such other place as Landlord may approve in writing complete and
accurate books of account and records of all trade or business activity
conducted on, at or from the Premises. Such records shall be kept in accordance
with generally accepted accounting principles (GAAP) consistently applied, and
shall include, but not be limited to, all purchases and receipts of merchandise,
services, fees and expenses paid for or on account of performing artists or
acts, inventories, goods, services, and all sales and other transactions from
which Tenant's gross sales, expenditures, net operating profit or loss and Net
Spendable Cash Flow can be determined. Such records shall also include complete
internal accounting controls and written documentation of such internal control
procedures. Tenant agrees to document and record all sales, purchases, loans,
borrowings, and
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business transactions of any kind, at the time each such transaction is made.
Tenant shall keep for at least three (3) years following the end of each Lease
Year or partial Lease Year all original books and records relating to
transactions taking place in such Lease Year which records shall include, but
not be limited to, (i) daily dated register tapes, (ii) serially numbered sales
slips, (iii) mail orders; (iv) settlement report sheets of transactions with,
sublessees, concessionaires, licensees, and performing acts, (v) receipts or
other records of all leases, licenses, tickets of admission, contracts,
documents, and instruments entered into by Tenant with respect to any activity
on the Premises, (vi) duplicate bank deposit slips and bank statements, (vii)
all state and federal sales and occupation tax returns, and (viii) such other
records as would normally be required to be kept and examined by an independent
accountant in accordance with accepted auditing practices in performing an audit
of Tenant' Gross Sales, net operating profit and loss, and Net Cash Flow.
7. LANDLORD'S INSPECTION RIGHTS. All books, records and documents
maintained by Tenant pursuant to Paragraph 6 above shall be available for
inspection and copying by Landlord at any time during normal business hours.
8. STATEMENTS OF GROSS SALES.
(a) Monthly Statements. Tenant shall submit to Landlord, on or before
the 15th day of each month, a written statement showing in reasonable
detail the Gross Sales in, at or from the Premises for the preceding
calendar month.
(b) Annual Statements. Tenant shall submit to Landlord on or before
sixty (60) days following the close of each calendar year a written
statement certified by an officer of Tenant and showing in reasonable
detail the Gross Sales in, at or from the Premises for the preceding
calendar year or partial calendar year.
9. STATEMENTS OF NET CASH FLOW.
(a) Annual Projections. On or before March 31 of each calendar year,
Tenant shall prepare and deliver to Landlord, a pro forma and operating
plan for all activities conducted on the Premises during said calendar year
(the "Annual Projection"). The Annual Projection shall set forth Tenant's
analysis of anticipated Gross Sales, expenditures, net operating profit and
loss, and Net Cash Flow for each quarter of the ensuing calendar year. The
parties anticipate that due to the seasonal nature of amphitheater
operations there will be little, if any, activity during the first quarter
of each calendar year.
(b) Quarterly Updates. On July 31 and October 31 of each year, Tenant
shall submit to Landlord a "Quarterly Update" consisting of a revised
Annual Projection for the current calendar year which shall include actual
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financial performance, including Gross Sales, net operating profit or loss,
and Net Cash Flow through the close of the preceding calendar quarter.
(c) Closing Annual Report. On January 31 of each calendar year, Tenant
shall submit to Landlord a Closing Annual Report of its actual financial
performance during the preceding calendar year which shall show the actual
totals of Gross Sales, net operating profit or loss, and Net Cash Flow for
that preceding year.
10. AUDIT.
(a) The acceptance by Landlord of payments of Percentage Rent shall be
without prejudice to Landlord's right to examine Tenant's books and records
in order to verify the amount of Tenant's Gross Sales, expenditures, net
operating profit or loss and Net Cash Flow.
(b) At any reasonable time within three (3) years after receipt of any
statement of Gross Sales, Annual Projection, Quarterly Update or Closing
Annual Report (a "Report") furnished to it by Tenant, and upon five (5)
days' prior written notice to Tenant, Landlord may cause a special audit to
be made of Tenant's business affairs and records relating to the Premises
for the period covered by such Report. Except as provided in (c) below, the
cost of such audit shall be paid by Landlord. Any such special audit
performed by a certified public accountant selected by Landlord shall be
binding upon Landlord and Tenant.
(c) If it shall be determined as a result of such audit that there has
been a deficiency in the payment of Percentage Rent, then such deficiency
shall become immediately due and payable to Landlord with interest from the
date when said payment should have been made to the date of payment at the
rate provided in Section 21.3 of the General Conditions. If the
aforementioned deficiency is in excess of three percent (3%) of the
Percentage Rent, theretofore computed and paid by Tenant for the period
covered by the audit, Tenant shall also pay to Landlord the cost of the
audit.
(d) Each Report submitted by Tenant shall become binding upon Landlord
three (3) years after delivery thereof to Landlord unless within such three
(3) year period Landlord shall cause such special audit to be commenced.
11. USE. Tenant shall use the Premises only for the operation of the
facilities described in Item 2 of the Basic Lease Provisions, and for no other
use or purpose whatsoever without the prior written consent of Landlord, which
consent may be withheld by Landlord in its sole discretion. In particular
Tenant, on behalf of itself and its approved successors or assigns, agrees to
comply with governmental regulations of the City of Irvine and any other
governmental body, authority or special district having jurisdiction over all or
any portion of the
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Premises. A violation of any such provision shall constitute a breach or default
hereunder and, subject to the notice and cure provisions of Section 13.1(c)
hereof, shall entitle Landlord to exercise the remedies set forth herein or in
the General Conditions.
12. SPECIFIC USE RESTRICTIONS. Unless expressly prior approved in
writing by Landlord, which approval may be withheld by Landlord in its sole
discretion, Tenant agrees that:
(a) Noncomplying Uses. Tenant shall not use, develop or attempt to use
or develop the Premises or any portion thereof for any purpose other than
those purposes expressly permitted under this Lease or expressly allowed
(without the benefit of a conditional use permit, zone variance, exception
or amendment) under the zoning ordinances of the City of Irvine in effect
as of September 15, 1990;
(b) Zone Changes. Tenant shall not change or attempt any change in
zoning, or the obtaining of or application for a conditional use permit,
zoning variance or exception or other similar approval with respect to the
use or development of the Premises or any portion thereof not expressly
allowed under such existing zoning ordinances or expressly permitted under
this Lease;
(C) Noncomplying Structures. Tenant shall not construct or maintain
any structure or improvements on the Premises not in full compliance with
all requirements of law or as contained herein or in any recorded
covenants, conditions and restrictions existing from time to time covering
the Premises; or
(d) Resubdivisions. Tenant shall not effect any change or amendment to
any parcel or final map covering the Premises or record any further parcel
or final map of the Premises or any portion thereof or facilities thereon,
pursuant to California Government Code Sections 66410 et seq., or any
similar statute hereafter enacted, and any local ordinances adopted
pursuant thereto, or file any applications with any governmental agency
with respect thereto.
(e) Amphitheater Operations.
(i) the Amphitheater shall have a fixed seating capacity of no
more than 16,300 seats. In determining whether to grant or withhold
such consent, Landlord may consider the effect of such expanded
operations on other property owned by Landlord in the vicinity of the
Premises;
(ii) total ticketed attendance at the Amphitheater shall not
exceed 16,300 persons for each performance unless an increase in
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seating capacity is approved by Landlord, in which event the total
ticketed attendance at the Amphitheater shall not exceed the number of
fixed seats as so approved by Landlord;
(iii) performances of any kind at the Amphitheater on any day
other than Friday, Saturday or Sunday evenings or holidays shall
commence no earlier than 8:00 p.m. and will terminate no later than
12:00 midnight. For purposes of this subpart (c), holidays shall refer
to any day when state and national banks and governmental offices are
closed in California;
(iv) all operations at the Amphitheater shall at all times comply
with applicable state and local ordinances, laws and regulations,
including, without limitation, all such ordinances, laws and
regulations pertaining to noise, and shall be compatible with vacant
land use designations of governmental agencies having jurisdiction
over such land uses; and
(v) all site plans, grading plans, working drawings and
construction plans for any work to be performed at the Amphitheater
shall be submitted to Landlord for its approval prior to the
commencement of any work on the Premises.
13. MAINTENANCE OF COMMON AREA. Landlord shall be responsible for
reasonable maintenance and upkeep of the Common Area, including, without
limitation, paving, striping and sweeping when and as deemed reasonably
necessary or desirable by Landlord, maintaining in effect liability insurance in
reasonable form and coverage, and payment of property taxes, assessments and
utility charges as same become due. Landlord may delegate all or any portion of
its maintenance and upkeep responsibilities to any third party, including to any
person or entity having the right or license to use the Common Area. Tenant
shall reimburse Landlord, at the times and in the manner hereinafter set forth,
all costs, charges, fees and expenses paid or incurred by Landlord in connection
with the aforementioned maintenance and upkeep (collectively, the "Parking
Maintenance Charges"). The Parking Maintenance Charges shall be allocated by
Landlord among the persons or entities having the right or license to use the
Common Area based upon Landlord's reasonable determination of the relative use
of the Common Area by such persons or entities. Landlord shall deliver to
Tenant, not later than thirty (30) days prior to the commencement of each
calendar year, Landlord's good faith estimate of the Parking Maintenance Charges
for the ensuing year and the portion thereof allocated to Tenant. Tenant shall
pay such estimated amount of its portion of such charges to Landlord in
quarterly installments in advance on the first day of each calendar quarter,
commencing on January 1 Of each year. Landlord shall submit to Tenant on or
before January 31 following the end of the calendar year a written statement
certified by an officer of Landlord and showing in reasonable detail the actual
Parking Maintenance Charges for the preceding calendar year or partial calendar
C-12
year, and the basis of the allocation to Tenant of its portion of such charges.
Within thirty (30) days thereafter, Tenant shall pay any sum owing for Parking
Maintenance Charges. If the aggregate of the quarterly estimated payments made
by Tenant exceed the sum owed by Tenant for such calendar year, Landlord shall
reimburse such excess to Tenant within thirty (30) days following delivery Of
the annual accounting of Parking Maintenance Charges. Notwithstanding anything
to the contrary contained herein, Tenant shall not be liable for payment of any
increase in the Parking Maintenance Charges attributable to an increase in the
size or change in the design of the parking areas maintained on the Common Area
unless such increase in size or change in design (i) is requested by Tenant or
(ii) is required by rules, regulations or ordinances of governmental authorities
having jurisdiction over the development and/or use of the Premises; provided,
however, that Tenant shall not be liable for payment of any increase in the
Parking Maintenance Charges if such change in design or size results from
Landlord's change in the use of the Common Area.
14. GENERAL CONDITIONS. The General Conditions attached hereto are
made a part of this Lease and are fully incorporated herein by this reference.
In the event of any conflict between the typed portions of this Lease and the
General Conditions attached hereto, the typed portions hereof shall prevail. In
the event of any conflict between the General Conditions and are recorded
covenants, conditions and restrictions existing from time to time covering the
Premises, the General Conditions shall prevail.
15. BROKER COMMISSIONS. Landlord and Tenant each represents to the
other that to the best knowledge of each, respectively, no brokerage commission,
finder's fee or other compensation of any kind is due or owing to any person or
entity in connection with this Lease. Each party agrees to and does hereby
indemnify and hold the other free and harmless from and against any and all
costs, liabilities or causes of action or proceedings which may be instituted by
any other broker, agent or finder, licensed or otherwise, claiming through,
under or by reason of the conduct of the Indemnifying party in connection with
this Lease.
16. INTERSTATE LAND SALES FULL DISCLOSURE ACT. Tenant recognizes that
the Premises are presently zoned by the appropriate governmental authority for
Industrial or commercial development; that the appropriate local authorities
have approved access from the Premises to a public street or highway; and that
Landlord intends that this Lease qualify for the developer's exemption from the
Interstate Land Sales Full Disclosure Act (the "Act") as provided by paragraph
1403(a)(7) thereof contained in 15 United States Code 1702(a)(7). Accordingly,
Tenant hereby represents and warrants to Landlord as follows, and agrees to
indemnify and hold Landlord entirely free and harmless from all liability for
any loss, damage or injury and all costs and expenses (including legal fees)
arising from any misstatement contained in the following representation: Tenant
is leasing the Premises for the purpose of engaging in the business of
C-13
constructing commercial or industrial buildings thereon or for the resale or
lease thereof to persons or entities engaged in such business.
----------------------------------
Tenant's Initials
17. UTILITY CONNECTION FEES AND ASSESSMENTS. Tenant shall be
responsible for all connection charges, metering fees and all other assessments
or charges of every type whatsoever associated with utility services, except
that Landlord shall pay the acreage assessment fees of the Irvine Ranch Water
District (the "District') having jurisdiction over the Premises, in effect upon
the Commencement Date of the term of this Lease. In the event that such acreage
assessment fees payable by Landlord are increased by the District after the
Commencement Date, Tenant shall be responsible for paying such increases to the
District, but in no event shall Landlord owe any amount to Tenant in the event
that such acreage assessment fees are decreased.
C-14
IN WITNESS WHEREOF, the parties hereto have executed this Ground Lease
as of the day and year first above written.
"Landlord "Tenant"
THE IRVINE COMPANY, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
a Michigan corporation a California general partnership
By: ___________________________ By: IMA investment Corporation,
Its:___________________________ a California corporation
General Partner
By: ___________________________ By:_________________________
Its:___________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇
President
By: ▇▇▇▇▇▇ & ▇▇▇▇, Inc.,
a California corporation
General Partner
By:_________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.,
a California corporation
General Partner
By:________________________
▇▇▇▇▇▇ ▇▇▇▇▇
President
By:___________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
General Partner
C-15
EXHIBIT A
LEGAL DESCRIPTION
"EXCLUSIVE AREA"
----------
A portion of Block 157 of the Irvine Subdivision per map filed in Book 1, Page
88 of Miscellaneous Record Maps of Orange County, California, also being a
portion of Parcel 2 of Parcel Map filed In Parcel Map Book 102, pages 30 and 31
of Parcel Maps of Orange County, being described as follows:
Beginning at the most easterly corner of said Parcel 2, said point also being on
the existing right-of-way of Irvine Center Drive; thence along said Parcel's
southeasterly boundary line South 40(degrees) 37' 51" West 1413.02 feet to the
True Point of Beginning; thence along the following courses and distances:
North 42(degrees) 59' 03" West 584.64 feet;
South 48(degrees) 58' 37" West 574.67 feet;
North 42(degrees) 54' 20" West 134.66 feet;
North 61(degrees) 19' 01" West 229.44 feet;
North 64(degrees) 24' 06" West 151.07 feet;
North 46(degrees) 55' 41" West 81.73 feet;
North 34(degrees) 57' 58" West 147.20 feet;
North 75(degrees) 05' 05" West 480.32 feet;
South 02(degrees) 12' 32" West 282.77 feet;
South 42(degrees) 12' 16" East 1073.44 feet;
to the beginning of a curve being concave to the southwest and having a radius
of 1450 feet, a radial to said point bears North 26(degrees) 20' 41" East;
thence along the arc of said curve through a central angle of 21(degrees) 03'
20" a distance of 532.86 feet; thence South 42(degrees) 35' 59" East 56.46 feet
to the southeasterly boundary line of said Parcel 2; thence along said line
North 40(degrees) 37' 51" East 1070.75 feet to the True Point of Beginning.
Said property contains 27.73 acres.
C-16
EXHIBIT A
To Ground Lease
Page 1 of 2
LEGAL DESCRIPTION
"COMMON AREA"
----------
A portion of Block 157 of the Irvine Subdivision per map filed in Book 1, Page
88 of Miscellaneous Record Maps of Orange County, California, also being a
portion of Parcel 2 of Parcel Map filed in Parcel Map Book 102, pages 30 and 31
of Parcel Maps of Orange County, being described as and bounded by the following
courses:
Beginning at the most easterly corner of said Parcel 2, said point also being on
the existing westerly right-of-way of Irvine Center Drive; thence
North 24(degrees) 49' 27" West 392.61 feet;
South 13(degrees) 09' 39" Last 158.21 feet;
to the beginning of a curve concave westerly and having a radius of 110.00 feet;
thence &lons the are of said curve through a central angle 600 45' 230" a
distance of 116.64 feet; thence South 47(degrees) 35' 44" West 175.24 feet, to
the beginning of a curve concave Northerly having a radius of 85.00 feet; thence
along the arc of said curve through a central angle of 112(degrees) 29' 09" a
distance of 166.88 feet; thence North 19(degrees) 55' 07" West 726.21 feet;
thence
South 70(degrees) 04' 53" West 239.09 feet;
North 43(degrees) 01' 39" West 527.07 feet;
South 47(degrees) 04' 52" West 855.98 feet;
South 42(degrees) 55' 08" East 225.75 feet;
South 24(degrees) 51' 44" East 986.12 feet;
South 42(degrees) 59' 03" East 584.64 feet to
the southeast boundary line of said Parcel 2; thence along said line North
40(degrees) 37' 51" East 1413.02 feet to the Point of Beginning.
Said property is the lease ground known as the "Common Area" and contains 42.62
acres.
C-17
EXHIBIT A
To Ground Lease
Page 1 of 2
[MAP]
EXHIBIT C
WHEN RECORDED RETURN TO:
THE IRVINE COMPANY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Lease Administration:
Community Development Commission
MAIL TAX STATEMENTS TO:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
c/o The ▇▇▇▇ Company
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇
APN No. ▇▇▇-▇▇▇-▇▇
--------------------------------------------------------------------------------
Space above this line for Recorder's use only
GROUND LEASE
(Short Form Memorandum)
1. DATE AND PARTIES. This GROUND LEASE (Short Form Memorandum) is
dated as of the _________ day of _______, 199__, and is by and between THE
IRVINE COMPANY Michigan corporation ("Landlord"), with its principal office
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a California general Partnership ("Tenant"), whose address is
c/o The ▇▇▇▇ Company, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. PROPERTY AND RENT. Landlord hereby leases to Tenant and Tenant
leases from Landlord, at the rental and upon all of the terms and conditions set
forth in that certain Ground Lease of even date herewith, between Landlord and
Tenant, which is incorporated herein by this reference, that certain real
property (the "Premises") located in the County of Orange. State of California,
and consisting of an "Exclusive Area" and "Common Area" as more particularly
described in Exhibit A and depicted in Exhibit B, each attached hereto and
incorporated herein by this reference.
C-19
EXHIBIT C
To Ground Lease
3. TERM. The Premises is leased for a term (the "Term") of twenty (20)
years commencing on the date hereof, and ending on February 28, 2017, subject to
earlier termination as provided in the Lease.
4. USE OF PREMISES. The Lease provides, among other things, that (i)
the Exclusive Area is demised for the exclusive use of Tenant to operate on
amphitheater in the manner and subject to the limitations more particularly
described in the Lease, and (ii) the Common Area is demised for the nonexclusive
use of Tenant to park automobiles thereon and is subject to redesignation by
Landlord, all as more particularly provided in the Lease.
5. TAXES. The Lease provides among other things, that Tenant shall pay
all or some portion of all taxes, general and special assessments and other
charges of every description which during the Term may be levied upon or
assessed against the Premises and all interest therein and all improvements and
other property thereon, whether belonging to Landlord or Tenant.
6. ENCUMBRANCES AND TRANSFERS. The Lease provides among other things,
that Tenant shall not encumber, assign or otherwise transfer this Lease, or any
right or interest hereunder, without the prior written consent and approval of
the Landlord, the giving of which consent is subject to certain standards set
forth in the Lease. Any such encumbrance, assignment or other transfer without
such prior written consent and approval shall be void and shall confer no rights
whatsoever.
7. INCONSISTENCY. Should there be any inconsistency between the terms
of this Short Form Memorandum and the Lease incorporated herein, the terms of
the incorporated Lease shall prevail.
C-20
IN WITNESS WHEREOF, each of the parties hereto has executed this
Ground Lease (Short Form Memorandum), as of the day and year first above
written.
THE IRVINE COMPANY, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
a Michigan corporation a California general partnership
By: ___________________________ By: IMA investment Corporation,
President a California corporation
General Partner
By: ___________________________ By:_________________________
Vice President ▇▇▇▇▇▇ ▇. ▇▇▇▇
President
By: ▇▇▇▇▇▇ & ▇▇▇▇, Inc.,
a California corporation
General Partner
By:_________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.,
a California corporation
General Partner
By:________________________
▇▇▇▇▇▇ ▇▇▇▇▇
President
By:___________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
General Partner
"Tenant"
C-21
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On this ________ day of ___________,in the year 199__, before me, the
undersigned, a Notary Public in and for said State, personally appeared
__________________________ and ____________________________ personally known to
me (or proved to me on the basis of satisfactory evidence) to be the persons who
executed the within instrument as President and Vice President, respectively, on
behalf of the corporation therein named and acknowledged to me that the
corporation executed it.
WITNESS my hand and official seal.
------------------------------
Notary Public in and for
said County and State
C-22
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On this __ day of _________________, in the year 199__, before me, the
undersigned, a Notary Public in and for said State, personally appeared ▇▇▇▇▇▇
▇. ▇▇▇▇ personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the within instrument as President, on
behalf of IMA Investment Corporation, a California corporation, being known to
me to be a general partner in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a California general partnership,
the partnership that executed the within instrument and acknowledged to me that
IMA Investment Corporation executed the same pursuant to its bylaws or a
resolution of its board of directors as such general partner and that ▇▇▇▇▇▇
▇▇▇▇▇▇▇ executed the same.
WITNESS my hand and official seal.
------------------------------
Notary Public in and for
said County and State
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On this __ day of _________________, in the year 199__, before me, the
undersigned, a Notary Public in and for said State, personally appeared ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the within instrument as President, on
behalf of ▇▇▇▇▇▇ & ▇▇▇▇, Inc., a California corporation, being known to me to be
a general partner an ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a California general partnership, the
partnership that executed the within instrument and acknowledged to me that
▇▇▇▇▇▇ & ▇▇▇▇, Inc. executed the same pursuant to its bylaws or a resolution of
its board of directors as such general partner and that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ executed
the same.
WITNESS my hand and official seal.
------------------------------
Notary Public in and for
said County and State
C-23
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On this __ day of __________, in the year 199__, before me, the
undersigned, a Notary Public in and for said State, personally appeared ▇▇▇▇▇▇
▇▇▇▇▇ personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the within instrument as President, on
behalf of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., a California corporation, being known to me to
be a general partner in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a California general partnership, the
partnership that executed the within instrument and acknowledged to me that
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. executed the same pursuant to its bylaws or a resolution of
its board of directors as such general partner and that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ executed
the same.
WITNESS my hand and official seal.
------------------------------
Notary Public in and for
said County and State
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On this __ day of __________, in the year 199__, before me, the
undersigned, a Notary Public in and for said State, personally appeared ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the persons who executed this instrument as a general partner,
on behalf of the partnership, and acknowledged to me that the partnership
executed it.
WITNESS my hand and official seal.
------------------------------
Notary Public in and for
said County and State
C-24
EXHIBIT D
GENERAL CONDITIONS
TO GROUND LEASE
The following General Conditions To Ground Lease are incorporated in
and made a part of that certain Ground Lease dated____________, 199_, by and
between THE IRVINE COMPANY, a Michigan corporation, as `Landlord", and ▇▇▇▇▇▇
▇▇▇▇▇▇▇, a California general partnership, as "Tenant", (the "Lease") as though
fully set forth at length therein.
ARTICLE 1
TENANT'S OPERATIONS
The Premises and all improvements constructed and maintained thereon
shall be used by Tenant for the use or uses specified in the Lease and for no
other use or purpose. Tenant shall not itself use or permit any other person or
entity to use the Premises, or any part thereof, for any purposes tending to
damage or harm the Premises or any improvements on or adjacent thereto, or the
image or attractiveness thereof, or for any improper, offensive or immoral use
or purpose, or in any manner which shall constitute waste, nuisance or public
annoyance; and Tenant shall conform to, and cause all persons using or occupying
any part of the Premises to comply with, all public laws, ordinances and
regulations from time to time applicable thereto and to all operations thereon.
ARTICLE 2
REQUIREMENTS AS TO IMPROVEMENTS
2.1 LANDLORD APPROVAL OF IMPROVEMENTS. As used herein, the terms
"Improvements" or "structures" shall mean and include without limitation all
buildings, outbuildings, seating, lighting and acoustic structures, amphitheater
structures, parking or loading areas, roadways or walkways, separate display or
storage areas, trackage, fences, walls, poles, signs, exterior lighting,
canopies, awnings, antennas, billboards, marquees, ▇▇▇▇▇▇, mass or large
plantings, and all other structures of any kind located above or below the
ground level of any site, and any replacements, additions, repairs or
alterations thereto of any kind whatsoever. No Improvement of any nature
whatsoever (including but not limited to any alteration or addition to any
Improvements existing from time to time) exceeding $25,000 in cost shall be
constructed, placed or assembled and maintained on the Premises until Landlord
has first approved the exterior design, density, size, appearance and location
thereof. For purposes hereof, a work of Improvement shall be deemed to exceed
$25,000 in cost, without regard to the actual cost of such work to Tenant, if
the full replacement cost of such work on the date the work
C-25
EXHIBIT D
To Ground Lease
commences would exceed $25,000 if undertaken by Landlord through independent
contractors and/or suppliers. Further, the cost of a proposed work of
Improvement shall include all work undertaken or in any manner related to each
other, it being the intent of the parties that, for purposes of determining
whether Landlord's approval is required under the terms of this Section 2.1, the
cost of separate components of related work shall not be separately determined,
but the cost of the work shall be estimated as a whole. For example, if Tenant
proposes to construct an asphalt parking area with lighting and fencing, the
cost of the lighting and fencing shall not be considered separately from the
cost of the asphalt parking area. Landlord hereby confirms its approval of the
improvements constructed on the Premises and existing as of January 1, 1991.
Before commencing any work of Improvement or applying for any governmental
permit or approval with respect thereto, Tenant shall first deliver or cause to
be delivered to Landlord for approval as provided below, two (2) sets of
schematic plans and preliminary specifications including at least grading and
drainage plans, exterior elevations, roof plans and site plans, showing in
reasonable detail existing topography and proposed type of use, size, land
coverage, shape, height, location, material, color scheme and elevation of each
proposed Improvement, all proposed ingress and egress to public or private
streets or roads, all utilities and service connections, and all proposed
landscaping, parking, exterior lighting, signs, cut and fill, finished grade,
run-off and concentration points. After such approval by Landlord but prior to
commencing any such work, Tenant shall also submit final plans and
specifications for any proposed Improvements in the same manner as provided in
this paragraph with respect to schematic plans and preliminary specifications.
All plans and specifications for grading or Improvements to be submitted to
Landlord here under shall be prepared by a duly licensed or registered architect
or engineer, as the case may be. Landlord shall not unreasonably withhold its
approval of any such plans or specifications. Landlord shall be conclusively
deemed to have given its approval therefor unless, within thirty (30) days after
all such plans and specifications have been received, Landlord shall give Tenant
written notice specifying in reasonable detail each item which Landlord
disapproves. Unless so disapproved, Landlord shall endorse its approval on at
least one set of plans and return the same to Tenant. Without limiting the
generality of the foregoing, Landlord may disapprove any plans which are not in
harmony or conformity with other existing or proposed Improvements on or in the
vicinity of the Premises, or with Landlord's then existent master utility,
circulation or general aesthetic or architectural plans and criteria for the
Premises and the general area in which the Premises are located, including but
not limited to such matters as adequacy of site and Improvement dimensions,
external appearance, relation of topography, grade and elevation of the site
being improved with neighboring sites and nearby streets, and the effect of
location and use of Improvements on neighboring sites, improvements or
operations. Notwithstanding the foregoing, Tenant may repair, replace, alter or
reconstruct any Improvement on the Premises for which plans were previously
approved by Landlord as provided above, but only if such repair, replacement,
alteration or reconstruction is substantially identical to the Improvement
previously so approved.
C-26
2.2 LANDLORD EXCULPATION. Landlord shall not be liable in damages to
anyone submitting plans and specifications for approval as provided herein, or
to any owner, occupant, lessee, licensee or other person subject to or affected
by this Lease, on account of (i) Landlord's approval or disapproval of any plans
or specifications, whether or not defective; (ii) any construction, performance
or non-performance by Tenant of any work on the Premises or Improvements,
whether or not pursuant to approved plans or specifications; (iii) any mistake
in judgment, negligence, action or omission in exercising Landlord's rights,
powers and responsibilities hereunder; or (iv) the enforcement or failure to
enforce any of the provisions contained herein. Every person who submits plans
or specifications to Landlord for approval agrees by submission of such plans or
specifications -and every owner, lessee, licensee or other occupant of the
Premises, Improvements or any portion thereof agrees by acquiring its interest
therein -not to bring any suit or action against Landlord seeking to recover any
such damages. Landlord's approval of such plans and specifications shall not
constitute the assumption of any responsibility by Landlord or its
representatives for the accuracy, efficacy or sufficiency thereof, and Tenant
shall be solely responsible therefor.
2.3 INSPECTION RIGHTS. Landlord or its authorized representatives may
from time to time, at any reasonable hour, enter upon and inspect the Premises,
site or any portion thereof or Improvements thereon to ascertain compliance with
this Lease, but without obligation to do so or liability therefor.
2.4 CERTIFICATES OF COMPLIANCE AND PRESUMPTION. Prior to commencement
of any such work of Improvements, Tenant shall supply to Landlord a certificate
from a licensed civil engineer or land surveyor verifying that the proposed
Improvements will be located on the correct parcel of land and in accordance
with plans previously approved by Landlord, Upon completion of any such
Improvements, Tenant shall supply to Landlord a further certification by
Tenant's architect (including the landscape architect in the case of
Improvements consisting of landscaping) that the Improvements as designed by the
architect have been completed in accordance with the plans previously approved
by Landlord. Tenant shall also supply to Landlord one (i) set of as-built
grading plans showing all underground installations. Notwithstanding anything to
the contrary herein contained, after the expiration of one year from the date of
issuance of a building permit by municipal or other governmental authority for
any Improvement, said Improvement shall, in favor of purchasers and
encumbrancers in good faith and for value, be deemed to be in compliance with
all provisions of Section 2.1 above, unless actual notice of such noncompliance
or noncompletion, executed by Landlord, shall appear of record in the office of
the County Recorder of Orange County, California, or unless legal proceedings
shall have been instituted to enforce compliance with these provisions.
2.5 DILIGENT COMPLETION AND COMPLIANCE. After commencement of
construction of any Improvements, the same shall be diligently prosecuted to
completion, to the end that such Improvement shall not remain in a partly
finished condition any longer than reasonably necessary for completion
C-27
thereof, and shall comply with all applicable governmental laws, ordinances and
other requirements and with any and all recorded covenants, conditions and
restrictions affecting the Premises, all at the sole cost and expense of Tenant
and without any cost, expense or liability whatsoever to Landlord. Tenant shall
provide Landlord with copies of any Notice of Completion issued in connection
with said Improvements not later than ten (10) days after its date of issue.
2.6 EXTERIOR MATERIALS AND FENCES. Without limiting the generality of
the foregoing provisions, all exterior walls shall be painted or suitably
treated in a manner acceptable to Landlord, and no exterior walls of sheet or
corrugated iron, steel or other metal or asbestos shall be permitted. No fence
or wall shall be made of any such material, and no fence or wall shall exceed
six (6) feet in height without the prior approval of Landlord. Landlord
acknowledges that the Premises are currently bounded by a chain link fence, and
that portions of said fence have been screened by landscaping, as depicted on
the aerial photograph attached hereto as Exhibit E and incorporated herein by
reference. Tenant hereby agrees that, from time to time during the term of this
Lease, in the event Landlord undertakes the sale, lease or development of
property in the vicinity of the Premises, Landlord shall have the right to
require that Tenant plant suitable and adequate additional landscape screening
of said fence in locations where such fence is not currently landscaped and
which are visible from such development on property owned by Landlord as of the
date hereof. In addition, in the event Landlord undertakes the sale, lease or
development of property adjacent to the Premises, Landlord shall have the right
to construct fencing or walls between the Premises and the adjacent property
(such as, block wall, stucco, brick or other architectural fencing), and, in
such event, Tenant agrees to pay Landlord one-half (1/2) of the costs and
expenses incurred in the design and construction of such walls or fencing within
thirty (30) days following written demand therefor from Landlord, accompanied by
reasonable supporting documentation for the costs and expenses incurred by
Landlord; provided, however, that the cost of such fencing to be borne by Tenant
shall not exceed Twenty-Five Thousand Dollars ($25,000) unless Landlord shall
agree to pay for any cost in excess thereof. Said limitation on the costs to be
incurred by Tenant hereunder shall be increased annually from August 31, 1991
by any percentage increase in the Consumer Price Index, All Urban Consumers, All
Items, ▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇-▇▇ = 100.
2.7 SIGNS.
(a) Tenant shall not construct, install or maintain upon the Premises or
upon the exterior walls of any structure, any billboard, signboard, sign post or
other advertising medium except such signs, advertising placards, names,
insignia, trademarks and descriptive words or materials (collectively the
"signs") as shall have first received the written approval of Landlord as to
size, type, color, location, copy, nature and display qualities. No signs
readily visible from off the Premises shall be permitted on or within the
Premises or Improvements other than those:
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(i) Identifying the name, business or products of the person or entity
using or occupying any site, Improvements thereon or any portion thereof;
or
(ii) Identifying any performing artist(s) or entertainment scheduled
to appear at or be conducted upon the Premises together with such other
information (such as the date and time of performance and the availability
of tickets) as is reasonably required to announce such performances to the
public;
(iii) Offering all or any portion of such site or Improvements for
lease or sale; or
(iv) Identifying the construction lender(s) and/or general
contractor(s), but only during the course of the construction.
(b) The parties acknowledge that Landlord is currently providing two
signage locations off the Premises for identification by Tenant of Amphitheater
attractions. Tenant acknowledges that Landlord may develop or otherwise utilize
property which it owns in the vicinity of the Premises in a manner which makes
it necessary or desirable, in Landlord's sole judgment, to remove such signs
from their present locations. Therefore, from time to time during the term of
this Lease, Landlord shall have the right to cause Tenant to relocate such
signage to other locations to be provided by Landlord, at no cost or expense to
Landlord. Furthermore, Tenant shall make no changes in the present signs without
first obtaining Landlord's prior written consent. Any new signs, or signs to be
relocated as aforementioned, shall be subject to Landlord's prior written
approval as to size, design, location, and esthetics, and Tenant shall be
responsible for obtaining any and all zoning or other land use entitlements
necessary in order to maintain or relocate such signs, at no cost or expense to
Landlord.
2.8 GRADING AND EXCAVATION. No excavation shall be made on the
Premises except in connection with construction of an Improvement pursuant to
grading and drainage plans approved by Landlord as provided in Section 2.1
above. In addition thereto, Tenant shall cause a soils investigation and report
to be prepared by a licensed soils engineer or geologist, and Landlord at its
election may require that the same be submitted to Landlord for its information;
provided, however, that Landlord shall not have any responsibility or liability
for any matters relating to said investigation or report. All grading work must
be conducted under the supervision of a licensed soils engineer. A final
certification of grading operations by a licensed soils engineer or geologist
must be filed with the Landlord upon completion of the grading work. Upon such
completion, all exposed openings shall be backfilled and disturbed ground shall
be restored to its original condition.
2.9 DRAINAGE. Tenant shall not drain or discharge water from the
Premises or Improvements thereon, and shall not interfere with the drainage
established as of the date of this Lease, in or over any other property adjacent
to
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the Premises, except in accordance with plans therefor approved by all public
agencies having jurisdiction; provided, that Tenant shall not drain or discharge
water onto or divert water from any adjacent lands owned by Landlord, except
through established drainage channels or new drainage improvements approved by
Landlord. Tenant acknowledges that portions of the Premises, or the Premises in
their entirety, may lie within a Drainage Assessment Area which may or may not
require an acreage assessment at present or during the term of the Lease. Tenant
agrees to pay any and all such charges which may be levied by applicable public
agencies or municipalities, as may be required.
2.10 UTILITY INSTALLATIONS. Tenant, at its sole cost and expense,
shall determine the availability of, and shall cause to be installed in, on, and
about the Premises, all facilities necessary to supply thereto all water,
sewage, gas, electricity, telephone and other like services required in Tenant's
operations hereunder. All such utility lines shall be installed underground,
except that transformer or terminal equipment related thereto may be installed
above ground if screened from view of adjacent streets and properties. Tenant
agrees to pay all connection or acreage assessments or charges levied by any
public utilities, agencies or municipalities with respect to their services.
Notwithstanding the foregoing, Tenant shall not enter into any contract or
agreement with any city, county or other governmental agency or body or public
utility with reference to sewer lines or connections, water lines or
connections, or street improvements (including but not limited to curbs,
gutters, parkways, street lighting or other utility connections, lines or
easements) relating to the Premises, without the prior written consent of
Landlord, which consent shall not unreasonably be withheld.
2.11 LANDSCAPING. Every site improved with a building or other
substantial structure shall be landscaped as approved by Landlord within ninety
(90) days of Tenant's occupancy or completion of such structure, whichever
occurs first, and maintained thereafter in a sightly and well-kept condition. In
particular, all improved areas within setback lines shall be fully and
adequately landscaped. Tenant shall provide hose bibs, sprinklers and other
reasonable and adequate landscape maintenance facilities in the vicinity of all
landscaped areas. Tenant hereby agrees that, in the event Landlord undertakes
the sale, lease or development of property in the vicinity of the Premises,
Landlord shall have the right to require that Tenant plant suitable and adequate
additional landscape screening of any fence bounding the Premises in locations
where such fence is visible from such development on property owned by Landlord
as of the date hereof; provided, however, that such landscaping shall not exceed
Ten Thousand Dollars ($10,000) unless Landlord shall agree to pay for any cost
in excess thereof. Said sum of Ten Thousand Dollars ($10,000) shall be increased
annually from August 31, 1991 by any percentage increase in the Consumer Price
Index, All Urban Consumers, All Items, ▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇-▇▇ = 100.
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ARTICLE 3
TAXES AND ASSESSMENTS
3.1 TAXES. Tenant shall be responsible for, and agrees to pay, not
later than ten (10) days prior to delinquency, any and all taxes, assessments,
levies, fees and other governmental charges of every kind or nature (hereinafter
collectively called "taxes") levied or assessed by any municipal, county, state,
federal or other taxing or assessing authority upon, against or with respect to
(i) the Premises, (ii) all furniture, fixtures, equipment and any other personal
property of any kind placed, installed or located within, upon or about the
Premises, (iii) all alterations, additions or improvements of whatsoever kind or
nature, if any, made to the Premises, and (iv) rentals or other charges payable
by Tenant to Landlord, irrespective of whether any of the items described in
clauses (i) through (iv) above are assessed as real or personal property, and
irrespective of whether any of such items are assessed to or against Landlord or
Tenant, but expressly excluding any general net income, franchise, inheritance
or ad valorem tax levied upon or payable by Landlord. Tenant shall, not later
than the 10 day period described above, or upon written request of the Landlord
if payment is made earlier, furnish to the Landlord a copy of the receipted tax
▇▇▇▇ or other proof of said payment. Tenant hereby agrees to protect and hold
harmless Landlord and the Premises and all improvements in, on, or about the
same from all liability for any and all such taxes, together with any interest,
penalties or other sums thereby imposed, and from any sale or other proceeding
to enforce payment thereof. Tenant shall cause all taxes imposed upon any
personal property situated in, on, or about the Premises to be levied or
assessed separately from said Premises and not as a lien thereunder. Tenant
hereby, appoints Landlord as its attorney-in-fact for the limited purpose of
performing, at Tenant's sole cost and expense, all acts necessary to cause the
Premises to be separately assessed from other lands of Landlord, and Tenant
agrees to pay to Landlord, within thirty (30) days of the date of billing, any
and all costs reasonably incurred by Landlord in performing such acts. If at any
time during the term of this lease any of such taxes are not so levied and
assessed separately and directly to Tenant, Tenant shall pay to Landlord its
proportionate share thereof, being that portion of such taxes that the area of
the Premises bears to the total area of all land within the entire tax
assessment parcel, as determined by Landlord.
3.2 TAXES ON RENTALS. Should the State of California or any political
subdivision thereof or any governmental authority having jurisdiction (by way of
substitution for all or any part of the "taxes" otherwise required to be paid in
whole or in part by Tenant pursuant to Section 3.1, or in addition thereto),
impose a capital levy or a tax, assessment and/or surcharge of any kind or
nature whatsoever (including but not limited to a value added tax) upon,
against, in connection with or with respect to the rentals or other charges
payable to Landlord by Tenant or on the income of Landlord derived from the
Premises or on Landlord's ownership of the Premises or any portion thereof or
interest therein, or otherwise, then, in any such case, such tax, assessment
and/or surcharge shall
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be deemed to constitute a tax and/or assessment against the Premises and Tenant
shall pay to Landlord its proportionate share thereof as defined in Section 3.1,
as billed by Landlord.
3.3. PRORATIONS. All such taxes and assessments for the first and last
year of this Lease shall be prorated between Landlord and Tenant on the basis of
the fiscal year of the appropriate governmental authority or authorities.
3.4. BONDS. With respect to any assessment which may be levied upon
the Premises and which under any applicable law then in force may be evidenced
by bond or bonds payable in annual installments, the taxes payable by Tenant
hereunder shall be limited to such installments (including interest) as may be
due and payable during each such year and the same shall be prorated as of the
end of the term with respect to the last year of the term hereof.
ARTICLE 4
UTILITY CHARGES
Tenant shall pay all charges for gas, water, sewer, electricity,
telephone, data transmission, cable television and other utility services used
on the Premises during the lease term, and shall indemnify Landlord and the
Premises from and against any such charges or liens arising therefrom. If any
such charges are not paid when due, Landlord may pay the same, and any amount so
paid by Landlord shall thereupon become due to Landlord from Tenant as
additional rent, together with interest thereon as provided in Article 10 below.
ARTICLE 5
REPAIRS AND UPKEEP
5.1 NO OBLIGATION OF LANDLORD. Landlord shall not be required or
obligated to make changes, alterations, additions, improvements or repairs in,
on, or about the Premises, or any part thereof, during the term of this Lease.
5.2 TENANT OBLIGATIONS. At all times during said term Tenant shall, at
its sole cost and expense, keep and maintain the Premises and all improvements
thereon and all facilities appurtenant thereto in first-class condition, order
and repair similar to that maintained by Landlord and other owners of high-class
properties of similar class and condition in Orange County and Southern
California, and the entire Premises, improvements thereto and all landscaping
and undeveloped areas thereon, in a clean, sanitary, orderly and attractive
condition, free from weeds, rubbish and debris. Tenant agrees to keep in full
force and effect throughout the term hereof a contract or other arrangement
satisfactory to Landlord in its sole discretion for maintenance of all
landscaping on those portions of the Premises as to which Tenant is responsible
for such landscaping, which contract shall be maintained with such company or
companies, person(s) or
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entities as Landlord shall approve and in compliance with such requirements as
are imposed therewith by any insurance company as provided in Article 7 hereof.
All repairs, alterations, replacements or additions to Improvements shall be at
least equal to the original work in class and quality. The necessity and
adequacy of such repairs and other work shall be measured by the same standard
as set forth above for the original construction and maintenance. Tenant shall
also be responsible at all times for determining that all Improvements and the
plans and specifications therefor conform and comply in all respects with these
provisions, all matters of record, all applicable governmental requirements, and
all exterior architectural design, location and color criteria as may be
approved by Landlord. Tenant shall also adopt and maintain such standards of
property space maintenance, appearance and housekeeping as shall be reasonable
and customary for similar operations or enterprises and shall enforce compliance
by all such tenants or users with such standards. Tenant shall indemnify and
save harmless Landlord against all actions, claims and damages by reason of
Tenant's failure to comply with any of the foregoing provisions.
5.3 CURE BY LANDLORD. Notwithstanding Section 5.1 and 5.2 above, in
the event Tenant fails, within fifteen (15) days after the date of a notice in
writing from Landlord so to do, to comply with the provisions of Section 5.2
above, Landlord shall be entitled, but shall not be obligated, to enter the
Premises and perform such work as may be necessary to restore the Premises and
improvements to the condition required by Section 5.2 above, and all of
Landlord's expenses in connection with such work shall be paid by Tenant to
Landlord upon demand, together with interest thereon as provided in Article 10
below.
ARTICLE 6
LANDLORD'S NONLIABILITY AND INDEMNITY
6.1 LANDLORD'S NONLIABILITY. Landlord shall not be liable for any
loss, damage or injury of any kind or character to any person or property (a)
arising from any use of the Premises, or any part thereof, (b) caused by any
defect in any building, structure or other Improvement thereon or in any
equipment or other facility located therein, (c) caused by or arising from any
act or omission of Tenant, or of any of its agents, employees, licensees or
invitees, (d) arising from any accident on the Premises or any fire or other
casualty thereon, (e) occasioned by the failure of Tenant to maintain the
Premises in safe condition, or (f) arising from any other cause whatsoever,
except as occasioned by the act or omission or neglect of any duty by Landlord
or its employees. Tenant, as a material part of the consideration of this Lease,
hereby waives on its behalf all claims and demands against Landlord for any such
loss, damage or injury of Tenant.
6.2 INDEMNITY BY TENANT. Tenant shall indemnify Landlord and save it
harmless from and against any and all claims, actions, damages, liability and
expenses, including attorneys' fees, in connection with loss of life, personal
injury and/or damage to property arising from or out of any occurrence in, upon
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or at the Premises, or the occupancy or use by Tenant of the Premises or any
part thereof, or any "common facilities" (as defined in the Lease, if
applicable), or arising from or out of Tenant's failure to comply with any
provision of this lease, or otherwise occasioned wholly or in part by any act or
omission of Tenant, its agents, representatives, contractors, employees,
servants, customers or licensees. In case Landlord shall, without fault on its
part, be made a party to any litigation commenced by or against Tenant, then
Tenant shall protect and hold it harmless and shall pay all costs, expenses and
reasonable attorneys' fees incurred or paid by Landlord in connection with any
such litigation. Landlord may, at its option, require Tenant to assume
Landlord's defense in any action covered by this Section through counsel
satisfactory to Landlord.
ARTICLE 7
INSURANCE
7.1 POLICY FORM AND EVIDENCE OF COVERAGE. All policies of insurance
provided for herein shall be written as primary policies (without "contribution"
or "solely in excess of coverage carried by Landlord" provisions) with
responsible and solvent insurance companies authorized to do business in
California with a policyholder's rating of "A" (Excellent) or better and a
financial rating of "X" or better in Bests' Insurance Reports-Fire and
Casualty. Prior to the commencement of the term hereof, Tenant shall supply
Landlord (and at all times during the term of the Lease keep on file with
Landlord) a true and correct copy of all such policies or a certificate of
insurance accurately reflecting the coverage required hereby together with
satisfactory evidence showing that all premiums thereon have been paid, and
thereafter, as additional premiums become due, Tenant shall supply Landlord with
satisfactory evidence that said premiums have been paid. Notwithstanding
anything to the contrary contained within this provision, Tenant's obligations
to carry insurance as provided herein may be brought within the coverage of a
so-called "blanket" policy or policies of insurance carried and maintained by
Tenant, so long as such policy or policies segregates the amount of coverage
applicable to the Premises. In the event that Tenant fails to procure, maintain
and/or pay for at the times and for the durations specified in this Lease, any
insurance required by this Lease, or fails to carry insurance required by law or
governmental regulation, Landlord may (but without obligation to do so) at any
time or from time to time, and without notice, procure such insurance and pay
the premiums therefor, in which event Tenant shall repay the Landlord all sums
so paid by Landlord, together with interest thereon as provided in Article 10
below and any costs or expenses incurred by Landlord in connection therewith,
within ten (10) days following Landlord's written demand to Tenant for such
payment.
7.2 TYPES AND LIMITS OF COVERAGE. Tenant, at its sole cost and
expense, shall, during the entire term hereof, procure, pay for and keep in full
force and effect: (i) comprehensive public liability and property damage
insurance
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with respect to the Premises and the operations of Tenant in, on or about the
Premises, including personal injury, blanket contractual, broad form property
damage and product liability coverage (including, without limitation [liquor
liability coverage and coverage for liability arising out of the consumption of
food and/or alcoholic beverages on or obtained at the Premises to the extent
obtainable), for not less than Five Million Dollars ($5,000,000) combined limit
per occurrence for bodily injury, death, and property damage liability; (ii)
worker's compensation coverage as required by law, together with employers
liability coverage; (iii) business interruption insurance, in amounts
satisfactory to Landlord; (iv) with respect to improvements, alterations, and
the like required or permitted to be made by Tenant hereunder, contingent
liability and builder's all-risk insurance, in amounts satisfactory to Landlord;
and (v) insurance against fire, vandalism, malicious mischief and such other
additional perils as now are or hereafter may be included in a standard fire,
extended coverage and special extended coverage endorsement from time to time in
general use in Orange County, California, insuring Tenant's leasehold
improvements, merchandise, trade fixtures, furnishings, equipment and other
items of personal property of Tenant located on or in the Premises, in an amount
equal to not less than ninety percent (90%) of the actual replacement cost
thereof.
7.3 SPECIFIC PROVISIONS. Each policy evidencing insurance required to
be carried by Tenant pursuant to this Article shall contain the following
provisions and/or clauses: (i) a cross-liability clause; (ii) a provision that
such policy and the coverage evidenced thereby shall be primary and
non-contributing with respect to any policies carried by Landlord and that any
coverage carried by Landlord shall be excess insurance; (iii) a provision
including Landlord and any other parties in interest designated by Landlord as
an additional insured; (iv) a waiver by the, insurer of any right to subrogation
against Landlord, its agents, employers and representatives which arises or
might arise by reason of any payment under such policy or by reason of any act
or omission of Landlord, its agents, employees or representatives, (v) a
severability clause; (vi) a provision that the insurer will not cancel or change
the coverage provided by such policy without first giving Landlord thirty (30)
days prior written notice; (vii) to the extent obtainable, a provision to the
effect that any amounts payable by virtue of loss of rentals or business
interruption shall be computed and stated separately in any settlement entered
into by the insurer under the policy involved. All net insurance proceeds may be
paid to an applicable "Lender" (as defined in Article l2 of the General
Conditions), so long as adequate provision reasonably satisfactory to Landlord
has been made in each case for the use of all such proceeds for the repair or
restoration of damaged or destroyed improvements on the Premises.
ARTICLE 8
RESTORATION
8.1 TENANT'S OBLIGATIONS. If any building or improvement erected by
Tenant on the Premises, or any part thereof, shall be damaged or
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destroyed by fire or other casualty during the term of this Lease, Tenant shall,
at its own cost and expense, repair or restore the same according to the
original plans thereof or according to such modified plans as shall be
previously approved in writing by Landlord, and such work of repair or
restoration shall be commenced within one hundred eighty (180) days after the
damage or loss occurs and shall be completed with due diligence but not longer
than one (1) year after such work is commenced, and such work shall be otherwise
done in accordance with the requirements of the provisions hereof pertaining to
the construction of improvements upon the Premises, and all insurance proceeds
collected for such damage or destruction shall be applied to the cost of such
repairs or restoration, and if (i) there are no insurance proceeds or (ii) the
same shall be insufficient for said purpose, Tenant shall make up the deficiency
out of its own funds. Should Tenant fail or refuse to make the repairs or
restoration as hereinabove provided, then in such event said failure or refusal
shall constitute a default under the covenants and conditions hereof and all
insurance proceeds so collected shall be forthwith paid over to and be retained
by Landlord on its own account and Landlord may, but shall not be required to,
use and apply the same for and to the repair or restoration of said Premises
and/or improvements, and Landlord may, at its option, terminate this Lease as
elsewhere provided herein.
8.2 TENANT'S OPTION TO TERMINATE. Notwithstanding anything to the
contrary contained in the preceding paragraph, if during the last five (5) years
of the term hereof any building or Improvement erected on said Premises shall be
damaged by fire or other casualty and the cost of repairing or restoring the
same shall exceed the insurance proceeds payable for such damage, then Tenant
shall have the option, to be exercised within thirty (30) days after such event,
to repair or restore said building as hereinabove provided, or to terminate this
Lease by written notice thereof to Landlord (subject to obtaining the prior
consent of any Lender provided for in Article 12 hereof, if said Lender's
consent is required), which option to terminate shall be conditioned as follows:
(a) Tenant shall, at its expense, within ninety (90) days after the
damage occurs, tear down and remove all parts of said building and other
Improvements then remaining and the debris resulting from such fire or
other casualty and otherwise clean up and restore the Premises, as far as
practicable, to its original condition, free and clear of liens; and
(b) Within ten (10) days after completion of said clean-up and
restoration Tenant shall surrender to Landlord possession of the Premises,
cleaned up and restored as aforesaid, and shall pay to Landlord (i) any
rent accruing to the date of said surrender, (ii) Tenant's pro rata share
of all unpaid taxes and assessments that then shall have become a lien upon
said Premises, and (iii) any other charges properly owing Landlord; and
(c) Upon surrender of possession of the Premises to Landlord, but not
before, said Lease shall terminate. The insurance proceeds collected and
paid for such damage, to the extent available for said purposes, shall be
applied
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first to pay the then balance due any authorized encumbrancer, if any,
second to the cost of such clean-up and restoration, and the unexpended
balance thereof, if any, shall be paid to Landlord.
ARTICLE 9
LIENS AND CLAIMS
9.1 MECHANICS' LIENS. Tenant shall not suffer or permit to be enforced
against the Premises, or any part thereof, or any Improvements thereon, any
mechanics', materialmen's, contractors' or subcontractors' liens ensuing from or
any claim for damage growing out of the work of any construction, repair,
restoration, replacement or improvement, or any other claim or demand howsoever
the same may arise, but Tenant shall pay or cause to be paid all of said liens,
claims or demands before any action is brought to enforce the same against said
Premises or Improvements. Tenant agrees to indemnify and hold Landlord and
Premises free and harmless from all liability for any and all such liens,
claims, demands and actions (collectively, the "Liens"), together with
reasonable attorneys' fees and all costs and expenses in connection therewith.
9.2 RIGHT TO CONTEST. Notwithstanding the foregoing, if Tenant shall
in good faith contest the validity of any such Lien, then Tenant shall at its
sole expense defend itself and Landlord against the same and shall pay and
satisfy any adverse expense or cost or any adverse judgment that may be rendered
thereon before the enforcement thereof against Landlord or the Premises, upon
the condition that if Landlord shall require, Tenant shall furnish to Landlord a
surety bond satisfactory to Landlord in an amount at least equal to such
contested Lien indemnifying Landlord against liability for the same, and holding
the Premises free from the effect of such Lien or if Landlord shall request,
Tenant shall procure and record the bond provided for in the California Civil
Code, or any comparable statute hereinafter enacted providing for a bond freeing
the Premises from the effect of such Lien.
9.3 BONDING AND NOTICES. Before the commencement of any work of
Improvement on the Premises, in addition to its other obligations herein
provided, Tenant shall give to Landlord thirty (30) days prior written notice
thereof, specifying as precisely as possible the expected date of commencement
thereof or any change thereof. Landlord reserves the right at any time and from
time to time to post and maintain on the Premises such notices of
non-responsibility or other notices as may be necessary to protect Landlord
against liability for all such liens and claims. At the request of Landlord, in
connection with any work of Improvement on the Premises exceeding Twenty-Five
Thousand Dollars ($25,000), Tenant shall also deposit with Landlord a
certificate or other evidence satisfactory to Landlord showing that Tenant has
furnished a bond or that Tenant's building contractor, if any, has furnished a
bond in favor of Landlord, with a surety approved by Landlord, guaranteeing the
completion of said work free and clear of all Liens.
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ARTICLE 10
SUBSTITUTE PERFORMANCE OR PAYMENT BY LANDLORD
In the event Tenant shall fail to pay and discharge or cause to be
paid and discharged, when due and payable, any tax, assessment, or other charge
upon or in connection with the Premises, or any lien or claim for labor or
material employed or used in, or any claim for damages arising out of the
construction, repair, restoration, replacement, maintenance and use of the
Premises and the improvements thereon, or any judgment on any contested lien or
claim, or any insurance premium or expense in connection with the Premises and
improvements, or any other claim, charge or demand which Tenant has agreed to
pay or cause to be paid under the covenants and conditions of this Lease, and
such failure continues for thirty (30) days following written notice from
Landlord so to do, then, in addition to any other remedies specified herein,
Landlord may at its option pay any of the aforementioned sums, or settle or
discharge any action therefor, or judgment thereon. All costs, expenses and
other sums incurred or paid by Landlord in connection with any of the foregoing
shall be paid by Tenant to Landlord within ten (10) days following demand
therefor, together with interest thereon at the rate of ten percent (10%) per
annum from the date incurred or paid, and failure to make such payment within
such ten (10) day period shall constitute a breach of the covenants and
conditions of this Lease in the same manner as failure to pay rent when due.
ARTICLE 11
ASSIGNMENTS AND SUBLETTING
11.1 PROHIBITION. Neither Tenant, nor any trustee, receiver or other
successor to Tenant shall, either voluntarily or by operation of law, assign,
sell, encumber, pledge or otherwise transfer all or any part of Tenant's
leasehold estate hereunder, or permit the Premises to be occupied by anyone
other than Tenant or Tenant's employees, or sublet the Premises or any portion
thereof, without Landlord's prior written consent in each instance.
Notwithstanding the above, Landlord's consent shall not be required for any
subletting of space or granting of concessions within any Improvement
constructed by Tenant on the Premises in accordance with the terms of this
Lease, provided such sublease or concession is for the uses permitted hereunder,
is made in the ordinary course of Tenant's business and is on a standard form
sublease or concession agreement approved in advance by Landlord in writing.
Consent by Landlord to one or more assignments of this Lease or to one or more
sublettings of the Premises, or the granting of concessions in connection
therewith, shall not operate to limit Landlord's rights under this paragraph in
any way. If Tenant is a corporation which, under the then current guidelines
published by the Commissioner of Corporations of the State of California, is not
deemed a pubic corporation, or is an unincorporated association or partnership,
the transfer, assignment or
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hypothecation, whether in one transaction or a series of transactions, of any
stock or interest in such corporation, association or partnership in the
aggregate in excess of twenty-five percent (25%), or the transfer of any
interest of ▇▇▇▇▇▇ ▇. ▇▇▇▇ in IMA Investment Corporation, a California
corporation, other than as a result of the death of ▇▇▇▇▇▇ ▇. ▇▇▇▇, shall be
deemed an assignment within the meaning and provisions of this Article.
11.2 REQUIRED INFORMATION. In connection with requesting Landlord's
consent to an assignment of this Lease or a subletting of the Premises or any
portion thereof for which Landlord's consent is required, Tenant shall submit in
writing to Landlord: (i) the name of the proposed subtenant or assignee; (ii)
the nature of the proposed subtenant's or assignee's business to be carried on
in the Premises; (iii) the terms and provisions of the proposed sublease or
assignment; and (iv) such reasonable information as Landlord may request
concerning the proposed subtenant or assignee, including but not limited to a
balance sheet of the proposed subtenant or assignee as of a date within ninety
(90) days of the request for Landlord's consent, statements of income or profit
and loss of the proposed subtenant or assignee for the two year period preceding
the request for Landlord's consent and a written statement in reasonable detail
as to the business experience of the proposed subtenant or assignee during the
five years preceding the request for Landlord's consent.
11.3 LANDLORD'S OPTIONS. At any time within thirty (30) days after
Landlord's receipt of the information specified in Section 11.2 above, Landlord
may by written notice to Tenant elect to (i) consent to the subletting or
assignment upon the terms and to the subtenant or assignee proposed; (ii)
condition such consent upon the assumption by such assignee or sublessee of all
obligations hereunder and such other reasonable conditions as Landlord may
impose, including but not limited to adjustment of the rental payable hereunder
(based on use restrictions as to the Premises set forth in this Lease); or (iii)
refuse to give its consent. Tenant agrees that Landlord may refuse to consent to
any proposed assignment or subletting for any reason or reasons deemed
sufficient by Landlord without regard to any objective standard of
reasonableness and may consent to a proposed subletting or assignment subject to
such conditions as Landlord, in its sole discretion, deems appropriate. Tenant
further agrees that no assignment or subletting consented to by Landlord shall
impair or diminish any covenant, condition or obligation imposed upon Tenant by
this Lease or any right, remedy or benefit afforded Landlord by this Lease. If
Landlord consents to such assignment or subletting, Tenant may thereafter within
ninety (90) days after the expiration of said thirty (30) day period enter into
a valid assignment or sublease of the Premises or portion thereof, upon the
terms and conditions described in the information required to be furnished by
Tenant to Landlord pursuant to Section 11.2 above or other terms not less
favorable to Tenant, provided, however, that any material change in the terms of
such subletting or assignment from those approved by Landlord shall be subject
to Landlord's consent as provided in this Article.
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11.4 INVALIDITY. No transfer or assignment, whether voluntary or
involuntary, by operation of law, under legal process or proceedings, or
otherwise, shall be valid or effective without the prior written consent and
approval of Landlord as and in the manner required by this Article 11. Should
Tenant attempt to make or suffer to be made any such transfer, assignment or
subletting, except as aforesaid, or should any of Tenant's rights under this
Lease be sold or otherwise transferred by or under court order or legal process
or otherwise, or should Tenant be adjudged insolvent or bankrupt, then and in
any of the foregoing events Landlord may, at its option, terminate this Lease
forthwith by written notice thereof to Tenant. Should Landlord consent to any
such transfer, assignment or subletting, such consent shall not constitute a
waiver of any of the restrictions of this Article, and the same shall apply to
each successive transfer, assignment or subletting hereunder, if any. If the
above limitation on Tenant's right to assign any interest hereunder is declared
or rendered unenforceable or invalid for any reason or to any extent, then the
parties agree that Section 5(b)(i) shall be deemed amended to provide for the
payment of Percentage Rent in the amount, if any, by which fifteen percent (15%)
of Tenant's Gross Sales during a Lease Year exceeds the Minimum Rent paid by
Tenant for such period.
11.5 TENANT'S LIABILITY. Unless otherwise agreed in writing by
Landlord and Tenant, no subletting or assignment, even with the consent of
Landlord, shall relieve Tenant of its rental or other obligations to be
performed by Tenant hereunder. The acceptance by Landlord of any payment due
hereunder from any other person shall not be deemed to be a waiver by Landlord
of any provision of this Lease or to be a consent to any assignment or
subletting.
11.6. TRANSFER FEE. If Landlord consents to any transfer or assignment
by Tenant pursuant to Section 11.1 above, Tenant shall pay a transfer fee to
Landlord of $5,000 (except as provided in Section 12.4 below) in connection with
the processing and documentation thereof.
ARTICLE 12
ENCUMBRANCES BY TENANT
12.1 DEFINITIONS. As used in this Lease, "Lender" shall mean any bank,
savings and loan association, insurance company, trustees of a pension trust, or
any other person or entity approved by Landlord in writing and making a loan to
Tenant secured, in whole or in part, by a Trust Deed; and "Trust Deed" shall
mean any deed of trust, mortgage or other security instrument imposing a first
lien on Tenant's leasehold estate and securing such loan advanced solely for the
construction of Improvements on the Premises as provided herein or as a
permanent loan following completion of such Improvements (including but not
limited to such so-called "soft costs" as loan interest, taxes, assessments,
broker's commissions, insurance premiums, amounts payable to or on behalf of
Landlord pursuant to the terms of this Lease, lender's fees and interim and
permanent financing including, without limitation, takeout and standby fees with
respect to
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permanent financing, legal and accounting fees, premiums for performance bonds,
contingencies and the like).
12.2 CONDITIONS TO ENCUMBRANCE. Notwithstanding the provisions of
Article 11 above, if requested by Tenant in writing, Landlord shall execute its
written consent to an assignment or hypothecation of this Lease under a Trust
Deed for the benefit of a Lender upon and subject to the following covenants and
conditions:
(a) The Trust Deed and all rights acquired thereunder shall be
subject to each and all of the covenants, conditions, restrictions and
provisions set forth in this Lease and to all rights and interest of
Landlord hereunder, except as herein otherwise provided. Landlord may
condition such consent upon receipt from Tenant and said Lender of written
documents satisfactory to Landlord by which Tenant and Lender expressly
agree to be so bound and subject to such matters as to themselves and their
respective successors and assigns. In the event of any conflict between the
provisions of this Lease and any provisions of any Trust Deed, the
provisions of this Lease shall control. Any notice to Lender of Tenant's
default or of termination of this Lease provided for in this Article may be
given concurrently with or after Landlord's notice of default to Tenant as
provided in Article 13.
(b) Immediately after the recording of the Trust Deed, Tenant, at
Tenant's expense, shall cause to be recorded in the office of the Recorder
of Orange County, California, a written request executed and acknowledged
by Landlord for a copy of any notice of default and of any notice of sale
under the Trust Deed as provided by the statutes of the State of
California. Concurrently with the execution of said consent, Tenant shall
furnish to Landlord a complete copy of the Trust Deed and note secured
thereby, and all other instruments evidencing or securing the indebtedness
secured thereby, together with the name and address of the holder thereof.
No such encumbrance shall be valid or effective unless and until Landlord
shall execute its written consent thereto.
12.3 LENDER RIGHTS ON DEFAULT. If Landlord elects to declare a default
by Tenant or to terminate the Lease as to Tenant because of any default, breach
or event of bankruptcy or insolvency described in Section 13.1(d) below
(collectively herein, the "default") hereunder on the part of Tenant, any
permitted Lender may nonetheless have the following rights within sixty (60)
days after service of written notice on Lender by Landlord of any such default
and/or termination:
(a) Lender may cure such default and either have the Lease continue in
effect with respect to such Lender (but not with respect to Tenant) or
enter into a new lease with Landlord on the same terms, conditions and
provisions contained herein (effective as of the date of Landlord's
termination of this Lease), but only if (i) Lender has served on Landlord a
request for written notice from Landlord of lease termination for Tenant's
default; and (ii) Lender
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has, within such sixty (60) day period, either cured such default (other
than the bankruptcy or insolvency of Tenant), if the same can be cured by
the payment of money, or if the default is otherwise curable but cannot be
remedied within the sixty (60) day period, then such Lender shall have
commenced in good faith to cure such default or breach and thereafter
diligently prosecuted the same to completion, or
(b) If such default is not so curable, Lender may cause in good faith
the trustee under the Trust Deed to commence and thereafter to diligently
pursue to completion all appropriate steps and proceedings for Judicial
foreclosure, the exercise of the power of sale under and pursuant to the
Trust Deed in the manner provided by law, or the obtaining from Tenant of
an assignment of this Lease in lieu of foreclosure (collectively the
"foreclosure remedies"); provided, that
(c) Subject to the foregoing provisions, Lender shall keep and perform
all of the covenants, conditions and provisions of this Lease herein
required to be kept and performed by Tenant until such time as the
leasehold created by this Lease shall be sold upon exercise of any of the
foreclosure remedies; provided further, that should trustee under the Trust
Deed or Lender be precluded by the bankruptcy laws of the United States or
by process or issue of any court having jurisdiction in connection with any
bankruptcy or insolvency proceeding involving Tenant during the above sixty
(60) day period from commencing and pursuing to completion steps and
proceedings for any such foreclosure remedies, then Landlord shall extend
said period for the pursuing of such foreclosure remedies, provided that
Lender is diligently and in good faith exerting all reasonable efforts to
obtain an appropriate release from any court order or restraint with
respect to such proceeding involving Tenant, and further provided that upon
such release, Lender shall in good faith immediately cause to have
commenced and to diligently pursue to completion all steps and proceedings
for consummation of such foreclosure remedies.
(d) If the leasehold estate hereunder shall be transferred by
exercise of any of such foreclosure remedies, the transferee or transferees
thereof shall thereupon and thereby assume the performance of and be bound
by each and all of the covenants, conditions, restrictions, obligations and
provisions herein provided to be kept and performed by Tenant during the
period such transferee or transferees shall hold title to said leasehold
estate.
Notwithstanding the foregoing provisions, if any Lender shall fail or
refuse at any time to comply with any and all of the applicable provisions of
this Section, then and thereupon Landlord shall be released from any covenant
not to terminate the Lease with respect to such Lender.
12.4 TRANSFER FEE. The prior written consent of Landlord shall not be
required for transfer of the leasehold estate created by this Lease to a
purchaser at a foreclosure sale or to the Lender's immediate transferee should
the
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Lender be the successful bidder at the foreclosure sale for a bid not in excess
of the sum of all amounts then secured by its Trust Deed or otherwise specified
in Calif. Civil Code Section 2924(c), or should the Lender receive the leasehold
estate created by this Lease by assignment in lieu of foreclosure, provided
that the Lender forthwith gives notice to Landlord in writing of any such
transfer setting forth the name and address of the transferee, the effective
date of such transfer and the express agreement of the transferee assuming and
agreeing to perform all of the obligations under this Lease, together with a
copy of the document by which such transfer was made and the payment to Landlord
of a transfer fee of $100 in lieu of the transfer fee as provided under Article
11. Any subsequent transfer of the leasehold estate created by this Lease shall
not be made without the prior written consent of Landlord and shall be subject
to the conditions relating thereto as set forth in Article 11 above.
ARTICLE 13
DEFAULTS AND REMEDIES
13.1 DEFAULTS. The occurrence of any one or more of the following
events shall constitute a default hereunder by Tenant:
(a) Abandonment of the Premises which shall include but not be limited
to, any absence by Tenant from the Premises for five (5) consecutive days
or longer while in default of any provision of this lease.
(b) Failure by Tenant to make any payment of rent or other payment or
charge required to be made by Tenant hereunder, as and when due, where
such failure shall continue for a period of ten (10) days after written
notice thereof from Landlord to Tenant; provided, however, that any such
notice provided above or in (c) below shall be in lieu of, and not in
addition to, any notice required under California Code of Civil Procedure
Sec. 1161, as amended.
(c) Failure by Tenant to perform any other express or implied
covenants or provisions herein contained (other than any breach under the
Article entitled "Assignment and Subletting" for which immediate notice of
termination may be given) and should such failure continue for thirty (30)
days after written notice thereof from Landlord to Tenant specifying the
particulars of such default; provided, further, that if the nature of
Tenant's default is such that more than thirty (30) days are reasonably
required for its cure, then Tenant shall not be deemed to be in default if
Tenant shall commence such cure within said thirty (30) day period and
thereafter diligently prosecute such cure to completion.
(d) Tenant's (i) application for, consent to, or suffering of the
appointment of a receiver, trustee or liquidator for all or for a
substantial portion of, its assets; (ii) making a general assignment for
the benefit of
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creditors; (iii) admitting in writing its inability to pay its debts or its
willingness to be adjudged a bankrupt; (iv) becoming unable to or failing
to pay its debts as they mature; (v) being adjudged a bankrupt; (vi) filing
a voluntary petition or suffering an involuntary petition under any
bankruptcy, arrangement, reorganization or insolvency law (unless in the
case of an involuntary petition, the same is dismissed within thirty (30)
days of such filing); (vii) convening a meeting of its creditors or any
class thereof for purposes of effecting a moratorium, extension or
composition of its debts; or (viii) suffering or permitting to continue
unstayed and in effect for ten (10) consecutive days any attachment, levy,
execution or seizure of all or a substantial portion of Tenant's assets or
of Tenant's interest in this lease.
13.2 REMEDIES. In any of such events of default and in addition to any
or all other rights or remedies of the Landlord hereunder or by the law
provided, Landlord may exercise the following remedies at its sole option:
(a) TERMINATION. Terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease shall terminate and
Tenant shall immediately surrender possession of the Premises to Landlord.
In such event Landlord shall be entitled to recover from Tenant:
(i) The worth at the time of award of the unpaid rent which had
been earned at the time of termination;
(ii) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such loss that Tenant proves could
have been reasonably avoided;
(iii) The worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award
exceeds the amount of such loss that Tenant proves could have been
reasonably avoided;
(iv) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, including, but not limited to,
the cost of recovering possession of the Premises, expenses of
reletting, including necessary repair, renovation and alteration of
the Premises, reasonable attorneys' fees, and any other reasonable
costs.
The "worth at the time of award" of the amounts referred to in
subparagraphs (i) and (ii) above shall be computed by allowing
interest at ten percent (10%) per annum from the dates such amounts
accrued to Landlord. The worth at the time of award of the amount
referred to in subparagraph (iii) above shall be computed by
discounting such amount
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at one (1) percentage point above the discount rate of the Federal
Reserve Bank of San Francisco at the time of award.
(b) RELETTING. Without terminating or effecting a forfeiture of this
Lease or otherwise relieving Tenant of any obligation hereunder in the
absence of express written notice of Landlord's election to do so, Landlord
may, but need not, relet the Premises or any portion thereof at any time or
from time to time and for such terms and upon such conditions and rental as
Landlord in its sole discretion may deem proper. Whether or not the
Premises are relet, Tenant shall pay to Landlord all amounts required by
Tenant hereunder up to the date that Landlord terminates Tenant's right to
possession of the Premises; provided, however, that following a default,
Landlord shall not unreasonably withhold its consent to an assignment of
this Lease or a subletting of the Premises requested by Tenant, unless
Landlord shall also elect to terminate this Lease and Tenant's right to
possession of the Premises as provided in Section 13.2(a) above. Such
payments by Tenant shall be due at the times provided in this Lease, and
Landlord need not wait until the termination of this Lease to recover them
by legal action or in any other manner. If Landlord relets the Premises or
any portion thereof, such reletting shall not relieve Tenant of any
obligation hereunder, except that Landlord shall apply the rent or other
proceeds actually collected by it for such reletting against amounts due
from Tenant hereunder to the extent such proceeds compensate Landlord for
non-performance of any obligation of Tenant hereunder. Landlord may execute
any lease made pursuant hereto in its own name, and the lessee thereunder
shall be under no obligation to see to the application by Landlord of any
proceeds to Tenant, nor shall Tenant have any right to collect any such
proceeds. Landlord shall not by any re-entry or other act be deemed to have
accepted any surrender by Tenant of the Premises or Tenant's interest
therein, or be deemed to have terminated this Lease, or to have relieved
Tenant of any obligation hereunder, unless Landlord shall have given Tenant
express written notice of Landlord's election to do so as set forth herein.
13.3 NO OBLIGATION OR LIABILITY OF LANDLORD. Landlord shall be under
no obligation to observe or perform any covenant of this Lease on its part to be
observed or performed which accrues after the date of any default by Tenant
thereunder. If Landlord shall elect to re-enter the Premises, Landlord shall not
be liable for any damages by reason of such re-entry.
13.4 RENT DURING UNLAWFUL DETAINER. In any action for unlawful
detainer commenced by Landlord against Tenant by reason of any default
hereunder, the reasonable rental value of the Premises for the period of the
unlawful detainer shall be deemed to be the amount of rent, additional rent and
other charges or payments to be made by Tenant under this lease for such period,
unless Tenant shall prove to the contrary by competent evidence.
13.5 CUMULATIVE RIGHTS. The rights and remedies reserved to Landlord
hereunder, including those not specifically described, shall be cumulative,
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and, except as otherwise may be provided by California statutory law in effect
at the time, Landlord may pursue any or all of such rights and remedies, at the
same time or separately.
13.6 NO WAIVER. No delay or omission of Landlord to exercise any right
or remedy shall be construed as a waiver of any such right or remedy or of any
default by Tenant hereunder. The acceptance by Landlord of rent or any other
payments hereunder shall not be a waiver of any preceding breach or default by
Tenant of any provision hereof, other than the failure of Tenant to pay the
particular rent or any other payments accepted, regardless of Landlord's
knowledge of such preceding breach or default at the time of acceptance of such
rent or any other payments, or a waiver of Landlord's right to exercise any
remedy available to Landlord by virtue of such breach or default.
13.7 EXPENSES AND LEGAL FEES. If either party incurs any expense,
including reasonable attorneys' fees, in connection with any action or
proceeding instituted by either party by reason of any default or alleged
default of the other party hereunder, the party prevailing in such action or
proceeding shall be entitled to recover its said reasonable expenses from the
other party. For purposes of this provision, in any unlawful detainer or other
action or proceeding instituted by Landlord based upon any default or alleged
default by Tenant hereunder, Landlord shall be deemed the prevailing party if in
any action or proceeding arising in connection with any default or alleged
default by Tenant hereunder: (a) judgment is entered in favor of Landlord; or
(b) prior to trial or Judgment Tenant shall pay all or any portion of the rent
and charges claimed by Landlord, eliminate the condition, cease the act, or
otherwise cure the omission claimed by Landlord to constitute a default by
Tenant hereunder.
ARTICLE 14
TRANSFERS AND FINANCING BY LANDLORD
14.1 TRANSFERS. The term "Landlord" as used in this Lease, so far as
covenants or obligations on the part of Landlord are concerned, shall mean and
include only the fee owner or owners of the Premises at the time in question,
and in the event of any transfer or transfers of the title to said land,
Landlord (and in the case of any subsequent transfers or conveyances, the then
grantor), except as hereinafter provided, shall be automatically freed and
relieved, from and after the date of such transfer or conveyance, of all
covenants or obligations on the part of Landlord contained in the Lease
thereafter to be performed; provided, however, that any funds in which Tenant
has an interest which are in the hands of such Landlord or the then grantor at
the time of such transfer shall be turned over to the grantee, and any amount
then due and payable to Tenant by Landlord or the then grantor under any
provisions of this Lease shall be paid to Tenant. The covenants and obligations
contained in this Lease on the part of Landlord shall, subject to the foregoing,
be binding on Landlord, its successors and assigns, only during and in respect
to their respective successive periods of ownership. No holder of a
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mortgage and/or deed of trust to which this lease is or may be subordinate, and
no lessor under a so-called sale-leaseback, shall be responsible in connection
with any security deposited hereunder, unless such mortgagee or holder of such
deed of trust or lessor shall have actually received the security deposited
hereunder.
14.2 ATTORNMENT. In the event any proceedings are brought for the
foreclosure of, or in the event of the conveyance by deed in lieu of
foreclosure of, or in the event of exercise of the power of sale under, any
mortgage and/or deed of trust made by Landlord covering the Premises, or in the
event Landlord sells, conveys or otherwise transfers its interest in the
Premises, Tenant hereby attorns to, and covenants and agrees to execute an
instrument in writing reasonably satisfactory to the new owner whereby Tenant
attorns to such successor in interest and recognizes such successor as the
Landlord under this Lease.
14.3 SUBORDINATION. Tenant agrees that this Lease shall, at the
request of the Landlord, be subordinate to any mortgages or deeds of trust that
may hereafter be placed by Landlord upon the Premises and to any and all
advances to be made thereunder, and to the interest thereon, and all renewals,
replacements and extensions thereof; provided, that the mortgagees or
beneficiaries named in said mortgages or trust deeds shall agree to recognize
the interest of Tenant and any applicable Lender under this Lease in the event
of foreclosure, if Tenant is not then in default. Tenant also agrees that any
mortgagee or beneficiary may elect to have this Lease constitute a prior lien to
its mortgage or deed of trust, and in the event of such election and upon
notification by such mortgagee or beneficiary to Tenant to that effect, this
Lease shall be deemed prior in lien to such mortgage or deed of trust, whether
this Lease is dated prior to or subsequent to the date of said mortgage or deed
of trust. Tenant agrees that upon the request of Landlord, or any mortgagee or
beneficiary, Tenant shall execute whatever instruments may be required to carry
out the intent of this Section.
ARTICLE 15
SURRENDER, REMOVAL AND TITLE TO IMPROVEMENTS
15.1 REMOVAL OR DEMOLITION. Within ninety (90) days after the
expiration or earlier termination of this Lease, Landlord, at its option, may
require Tenant, at its expense, to promptly and diligently remove, demolish
and/or clear off from the Premises all or any designated portion of the
Improvements and other property of whatsoever nature placed or owned by Tenant
or any successors in interest thereon, whether or not affixed to the Premises or
to any improvement thereon, and after such removal or clearance Tenant shall
restore the surface of the ground to a graded, properly filled, level and
uniform condition, free from all excavations and debris; provided, however, that
if Tenant at such time shall be in default in the payment of rents or any other
charges hereunder, Landlord shall have a lien on said Improvements to secure
payment of such rents or charges.
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If Landlord exercises such option, Tenant shall promptly commence and diligently
complete such demolition and clearing, which work shall be done in accordance
with all provisions of this Lease governing the performance of changes,
alterations or other such work to the Premises and Improvements.
15.2 CONVEYANCE OR RELEASE OF IMPROVEMENTS. Should Landlord not
require Tenant to remove or demolish any such Improvements as provided in
Section 15.1, then title to the same shall automatically pass to Landlord, free
of any right, title, interest or estate of Tenant therein, or its successors or
assigns, without the necessity of executing any further instrument and without
the necessity of any allowance, compensation, consideration or payment by
Landlord therefor. Tenant hereby grants, releases, transfers, sets over, assigns
and conveys to Landlord all of its right, title and interest in and to all such
Improvements, to be effective for all purposes upon any such termination of this
Lease. Notwithstanding the foregoing, Tenant agrees to execute, acknowledge and
deliver to Landlord upon the expiration of such 90-day period a proper
recordable instrument quitclaiming and releasing to Landlord any right, title
and interest of Tenant in and to the Premises and all Improvements remaining
thereon, and giving such further assurances of title as may be required by
Landlord or its successors, assigns or title insurers. Nothing herein contained,
however, shall adversely affect any right that Tenant may have to quiet
enjoyment and possession so long as the Lease-shall continue in force and effect
and Tenant shall not be in default hereunder. Tenant shall upon such lease
termination surrender and deliver the Premises and all remaining Improvements
not removed as provided above to the possession and use of Landlord, without
delay and in good order, condition and repair, ordinary wear and tear excepted,
and in a neat and clean condition, excepting only Tenant's or any subtenant's
movable trade fixtures, machinery, equipment and personal property. Tenant shall
also deliver to Landlord all leases, lease files, plans, books, records,
registers and other documents necessary or appropriate for the proper operation,
maintenance and management of the Premises and Improvements.
ARTICLE 16
HOLDING OVER
This Lease shall terminate and become null and void without further
notice upon the expiration of the term herein specified, and any holding over by
Tenant after such expiration shall not constitute a renewal hereof or give
Tenant any rights hereunder or in or to the Premises, except as otherwise
herein provided, it being understood and agreed that this Lease cannot be
renewed, extended or in any manner modified except by a writing signed by both
parties hereto. If Tenant shall hold over for any period after the expiration of
said term, Landlord may, at its option, exercised by written notice to Tenant,
treat Tenant as a tenant from month-to-month commencing on the first day
following the expiration of this Lease and subject to the terms and conditions
herein contained except that the monthly rental, which shall be payable in
advance, shall be one hundred and fifty percent
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(150%) of the monthly rental applicable at the said expiration date plus any
prorated Percentage Rent or additional rent if provided herein. If Tenant fails
to surrender said Premises upon expiration of this Lease despite demand to do so
by Landlord, Tenant shall indemnify and hold Landlord harmless from all loss or
liability, including without limitation any claims made by any succeeding
lessee, founded on or resulting from such failure to surrender, and Landlord
shall be entitled to the benefit of all provisions of law respecting summary
recovery of possession to the same extent as if such statutory or other notice
had been given.
ARTICLE 17
EMINENT DOMAIN
17.1 DEFINITION OF TERMS. The term "total taking" as used in this
Article means the taking of the entire Premises under the power of eminent
domain or a taking of so much of said Premises as to prevent or substantially
impair the conduct of Tenant's business thereon. The term "partial taking" means
the taking of a portion only of said Premises which does not constitute a total
taking as above defined.
17.2 TOTAL TAKING. If during the term hereof there shall be a total
taking by public authority under the power of eminent domain, then the leasehold
estate of Tenant in and to the Premises shall cease and terminate as of the date
the actual physical possession thereof shall be taken.
17.3 PARTIAL TAKING. If during said term there shall be a partial
taking of the Premises, this Lease shall terminate as to the portion of said
Premises taken upon the date upon which actual possession is taken pursuant to
said eminent domain proceedings, but said Lease shall continue in force and
effect as to the remainder of said Premises. The basic rental payable by Tenant
for the balance of said term shall be abated in the ratio that the square
footage ground area of the Premises taken bears to the total ground area of said
Premises at the time of such taking.
17.4 ALLOCATION OF AWARD. All compensation and damages awarded for the
taking of the Premises or any portion thereof shall, except as otherwise herein
provided, belong to and be the sole property of Landlord, and Tenant shall not
have any claim or be entitled to any award for diminution in value of its
leasehold hereunder or for the value of any unexpired term of this Lease;
provided, however, that Tenant shall be entitled to any award that may be made
for the taking of or injury to any Improvements installed or constructed on the
Premises at the expense of Tenant, or on account of any cost or loss Tenant may
sustain in the removal of Tenant's fixtures, equipment and furnishings, or as a
result of any alterations, modifications or repairs which may be reasonably
required by Tenant in order to place the remaining portion of the Premises not
so condemned in a suitable condition for the continuance of Tenant's tenancy.
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17.5 EFFECT OF TERMINATION. If this Lease is terminated, in whole or
in part, pursuant to any of the provisions of this Article, all rentals and
other charges payable by Tenant to Landlord hereunder and attributable to the
Premises taken, shall be paid up to the date upon which actual physical
possession shall be taken by the condemnor, and the parties shall thereupon be
released from all further liability in relation thereto.
17.6 VOLUNTARY CONVEYANCE. A voluntary conveyance by Landlord to a
public utility, agency or authority under threat of a taking under the power of
eminent domain in lieu of formal proceedings shall be deemed a taking within
the meaning of this Article 17.
ARTICLE 18
MINERAL AND WATER RIGHTS RESERVATIONS
Landlord reserves and excepts from all property leased hereunder unto
itself, its successors and assigns, together with the exclusive right to grant
and transfer all or a portion of the same:
(a) Any and all oil, oil rights, petroleum, minerals, mineral rights,
natural gas rights, and other hydrocarbon substances by whatsoever name
known, geothermal steam, and all products derived from any of the
foregoing, that may be within or under the land, together with the
perpetual right of drilling, mining, exploring, prospecting and operating
therefor and storing in and removing the same from the Premises or any
other land, including the right to whipstock or directionally drill and
mine from lands other than those conveyed hereby, oil or gas ▇▇▇▇▇, tunnels
and shafts into, through or across the subsurface of the Premises, and to
bottom such whipstocked or directionally drilled ▇▇▇▇▇, tunnels and shafts
under and beneath or beyond the exterior limits thereof, and to redrill,
retunnel, equip, maintain, repair, deepen and operate any such ▇▇▇▇▇ or
mines; without, however, the right to enter, drill, mine, store, explore
and operate on or through the surface or the upper 500 feet of the
subsurface of the Premises.
(b) Any and all water, rights or interests therein, no matter how
acquired by Landlord, and owned or used by Landlord in connection with or
with respect to the Premises, together with the right and power to explore,
drill, redrill, remove and store the same from the Land or to divert or
otherwise utilize such water, rights or interests on any other property
owned or leased by Landlord, whether such water rights shall be riparian,
overlying, appropriative, percolating, littoral, prescriptive, adjudicated,
statutory or contractual; but without, however, any right to enter upon the
surface of the Premises in the exercise of such rights.
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ARTICLE 19
SAFETY AND HEALTH
Tenant shall comply with all laws and regulations promulgated by all
relevant governmental authorities, including but not limited to the requirements
of the Occupational Safety and Health Act of 1970, 29 U.S.C. Section 661 et seq.
and any analogous legislation in California (collectively, "OSHA") to the extent
that OSHA applies to the Premises and any activities thereon. Without limiting
the generality of the foregoing, Tenant shall maintain all working areas, all
machinery, structures, electrical facilities and the like upon the Premises in a
condition that fully complies with the requirements of OSHA, including such
requirements as would be applicable with respect to agents, employees or
contractors of Landlord who may from time to time be present upon the Premises.
Tenant shall indemnify and hold harmless Landlord from any liability, claims or
damages arising as a result of a breach of the covenants of this Article and
from all costs, expenses and charges arising therefrom including, without
limitation, attorneys' fees and court costs incurred by Tenant in connection
therewith, which indemnity shall survive the expiration or termination of this
Lease.
ARTICLE 20
STATEMENT OF TENANT
20.1 CONTENTS AND EFFECT. Tenant shall, at any time and from time to
time, upon not less than ten (10) days prior written notice by Landlord,
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or, if there has
been any modification thereof, that the same is in full force and effect as
modified and stating the modification or modifications) and that Landlord is not
in default, except as specified in such statement, in regard to any of its
covenants or obligations under this Lease, and further setting forth the dates
to which all sums payable as rental hereunder have been paid in advance, if any,
and such other statements relating to delivery and acceptance of the Premises as
Landlord's lender, lienor, encumbrancer or purchaser may require. Tenant
represents and warrants that any such statement delivered pursuant to this
Article will be accurate and binding upon Tenant and may be relied upon by any
such person. Tenant shall be taken to have waived any defaults by Landlord
occurring before the date of such statement and not set forth therein.
20.2 EFFECT OF TENANT'S FAILURE. Tenant's failure to execute and
deliver such statement within such time shall be conclusive evidence (i) that
this Lease is in full force and effect without modification except as may be
represented by Landlord, (ii) that there are no uncured defaults in
Landlord's performance, and (iii) that not more than one installment of minimum
rent has been paid in advance; provided, however, that at Landlord's option
Tenant's failure to execute and deliver any statements or instruments necessary
or desirable to
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effectuate the foregoing provisions of this Article or Sections 14.2 or 14.3
above, within ten (10) days after written request so to do by Landlord, shall
constitute a breach of this Lease. In the event of such failure, Landlord in
addition to any other rights or remedies it might have, shall have the right by
not less than ten (10) days notice to Tenant to declare this Lease terminated
and the term ended, in which event this Lease shall cease and terminate on the
date specified in such notice; upon such termination Tenant shall vacate and
surrender the Premises, but shall remain liable as provided in this Lease by
reason of said breach.
ARTICLE 21
MISCELLANEOUS PROVISIONS
21.1 NOTICES. Any notice, election, demand or other communication to
be given by either party to the other hereunder may be delivered in person to an
authorized representative of the other party, or may be deposited in the United
States mail, duly registered or certified, with postage prepaid, and addressed
to the party for whom intended as follows: To Landlord at its designated
business office, and to Tenant at the Premises or at such other address set
forth beneath its signature in the attached Lease. Either of the parties hereto
may hereafter respectively designate another address as provided above. Service
of any such written notice shall be deemed complete at the time of such personal
delivery or within two (2) days after the mailing thereof as hereinabove
provided. If more than one lessee is named under this Lease, service of any
notice upon any one of said lessees as herein provided shall be deemed as
service upon all of said lessees.
21.2 PRORATIONS. All payments required to be made under the terms of
this Lease which require proration shall be prorated on the basis of one-twelfth
(1/12th) of the amount for each full month and one-three hundred and sixtieth
(1/360th) of the amount for each day to be prorated.
21.3 INTEREST ON LATE PAYMENTS. Any installment of rent accruing under
the provisions of this Lease or any other payment which shall not be paid when
due, shall bear simple interest at the lesser of (i) 4% per annum above the
prime rate (expressed as an annual rate of interest) then charged by a bank
designated by Landlord from time to time as its correspondent bank, or (ii) the
maximum rate of interest then permitted by applicable law, accruing from the
date when such payment was due until the date such amount is fully paid.
21.4 ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the rent and other payments herein stipulated
shall be deemed to be other than on account of the earliest due stipulated rent,
nor shall any endorsement or statement on any check or any letter accompanying
any check or payment as rent be deemed an accord and satisfaction, and Landlord
shall accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or pursue any other remedy in this Lease
provided.
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21.5 WAIVER. One or more wavers of any covenant or condition by
Landlord shall not be construed as a waiver of a subsequent breach of the same
covenant or condition, and the consent or approval by Landlord to or of any act
by Tenant requiring Landlord's consent or approval shall not be deemed to render
unnecessary Landlord's consent or approval to or any subsequent similar act by
Tenant. No breach by Tenant of a covenant or condition of this Lease shall be
deemed to have been waived by Landlord unless such waiver is in a writing signed
by Landlord. The rights and remedies of Landlord under this Lease shall be
cumulative and in addition to any and all other rights and remedies which
Landlord has or may have.
21.6 SURRENDER OR CANCELLATION. The voluntary or other surrender of
this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger,
but shall terminate all or any existing subleases unless Landlord expressly
elects to treat such surrender or cancellation as an assignment to Landlord of
any or all of such subleases.
21.7 BROKER'S COMMISSION. Tenant warrants that it has had no dealings
with any real estate broker or agent in connection with the negotiation of this
Lease except as may otherwise be specifically stated in this Lease. Tenant
agrees to indemnify Landlord and hold Landlord harmless from all liabilities
arising from any claim by any other broker or finder allegedly representing
Tenant, including, without limitation, the cost of attorneys' fees in connection
therewith. Such agreement shall survive the termination of this Lease.
21.8 RECORDING. Tenant shall not record this Lease without the prior
written consent of Landlord. Landlord, upon the request of Tenant, shall execute
and acknowledge a "short form" memorandum of this Lease, in form and substance
satisfactory to Landlord, for recording purposes.
21.9 CORPORATE AUTHORITY. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. Tenant shall, at Landlord's request, deliver a certified copy of
its Board of Directors' resolution authorizing such execution.
21.10 NONDISCLOSURE OF LEASE TERMS. Landlord and Tenant acknowledge
and agree that the terms of this Lease are confidential and constitute
proprietary information of Landlord and Tenant. Disclosure of the terms hereof
could adversely affect the ability of Landlord to negotiate other leases and
impair Landlord's relationship with other tenants in the vicinity of the
Premises. Landlord and Tenant each agree that they, and their respective
partners, officers, directors, employees and attorneys, shall not disclose the
terms or conditions of this Lease to any other person without the prior written
consent of the other party hereto; provided, however, that the foregoing shall
not extend to disclosure by either party
C-53
to its Lenders or to the independent accountants who may audit their respective
financial statements. It is understood and agreed that damages would be an
inadequate remedy for the breach of this provision by any party hereto, and each
of the parties hereto shall have the right to specific performance of this
provision and to injunctive relief to prevent its breach or continued breach.
21.11 ENTIRE AGREEMENT. This Lease and the exhibits hereto cover in
full each and every agreement of every kind or nature whatsoever between the
parties hereto concerning the Premises, and all preliminary negotiations and
agreements of whatsoever kind with respect to the Premises, except those
contained herein, are superseded and of no further force or effect. No person,
firm or corporation has at any time had any authority from Landlord to make any
representations or promises on behalf of Landlord, and Tenant expressly agrees
that if any such representations or promises have been made by Landlord or
others, Tenant hereby waives all right to rely thereon. No verbal agreement or
implied covenant shall be held to vary the provisions hereof, notwithstanding
any statute, law, or custom to the contrary.
21.12 AMENDMENT OF LEASE. No amendment or other ratification of this
Lease shall be effective unless in writing signed by two authorized agents of
Landlord, who shall be the President or a Vice-President, and either another
Vice-President, the Secretary or an Assistant Secretary, and by the Tenant, or
by their respective successors in interest.
21.13 CERTAIN RULES OF CONSTRUCTION. Time is of the essence of this
Lease. Notwithstanding the fact that certain references elsewhere in this Lease
to acts required to be performed by Tenant hereunder omit to state that such
acts shall be performed at Tenant's sole cost and expense, unless the context
clearly implies to the contrary each and every act to be performed or obligation
to be fulfilled by Tenant pursuant to this Lease shall be performed or fulfilled
at Tenant's sole cost and expense. The captions, section numbers, article
numbers, and index appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such sections or articles of this Lease nor in any way affect this
Lease. Each and all of the obligations, covenants, conditions and restrictions
of this Lease shall inure to the benefit of and be binding upon and enforceable
against, as the case may require, the successors and assigns of Landlord, and,
subject to the restrictions of Article 11 above entitled "Assignments and
Subletting," any authorized assignee, transferee, sublessee and other successors
in interest of Tenant. In this Lease each of the neuter, feminine or masculine
gender(s) includes the other or others, and the singular number includes the
plural, wherever the context so requires. If more than one lessee is named
above, the obligation of each of such lessees hereunder shall be and is joint
and several.
21.14 SPECIFIC PERFORMANCE. Nothing contained in this Lease shall be
construed as or shall have the effect of abridging the right of Landlord to
C-54
obtain specific performance of any and all of the covenants or obligations of
Tenant under this Lease.
21.15 EXECUTION OF LEASE. Execution of this Lease by Tenant and return
to Landlord shall not be binding upon Landlord, notwithstanding any time
interval, until Landlord has in fact executed and delivered this Lease to
Tenant.
21.16 CONTROLLING LAW. This Lease shall be governed by and construed
in accordance with the laws of the State of California. If any provision of this
Lease or the application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Lease shall not be
affected thereby and each provision of the Lease shall be valid and enforceable
to the fullest extent permitted by the law.
21.17 CHANGES REQUESTED BY LENDER. Neither Landlord nor Tenant shall
unreasonably withhold its consent to changes or amendments to this Lease by the
Lender on Landlord's fee interest or on Tenant's leasehold interest, as the case
may be, so long as such changes do not alter the basic business terms of this
Lease or otherwise materially diminish the rights or materially increase the
obligations of the party from whom consent to such change or amendment is
requested.
END OF GENERAL CONDITIONS TO GROUND LEASE
C-55
EXHIBIT D
GUARANTY
THIS GUARANTY (the "Guaranty") is made as of August __, 1991, by
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(individually, a "Guarantor" and collectively, the "Guarantors"), in favor of
THE IRVINE COMPANY, a Michigan corporation ("Landlord").
1. Except as otherwise provided in this Guaranty, all terms defined in that
certain Amended and Restated Agreement Re Ground Lease of even date
herewith by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a California general partnership
("Tenant"), and Landlord (the "Agreement") shall have the same meaning when
used in this Guaranty. Such defined terms are denoted in the Agreement and
in this Guaranty by initial capital letters.
2. In order to induce Landlord to enter into the Agreement, Guarantors hereby,
jointly and severally, unconditionally and irrevocably guarantee to
Landlord, and to its successors and/or assigns, the prompt and complete
performance of Tenant's obligations under Sections 4.01 and 4.02 of the
Agreement (the "Guaranteed Obligations").
3. Each Guarantor is either a general partner in Tenant or the principal
shareholder of a corporate general partner of Tenant. Accordingly, each
Guarantor agrees that Landlord's entering into the Agreement is of
substantial and material benefit to such Guarantor and further agrees as
follows:
(a) Each Guarantor shall continue to be liable under this Guaranty and the
provisions hereof shall remain in full force and effect
notwithstanding (i) any modification, agreement or stipulation between
any Guarantor and Landlord, or their respective successors and
assigns, with respect to the Agreement, the Sublease, the New Lease,
or the obligations encompassed in any of said instruments, including,
without limitation, the Guaranteed Obligations; (ii) Landlord's waiver
of or failure to enforce any of the terms, covenants or conditions
contained in the Agreement, the Sublease, the New Lease, or in any
modification thereof; (iii) any release of any other guarantor from
any liability with respect to the Guaranteed Obligations; or (iv) any
transfer, assignment or other conveyance of any interest under the
Agreement, the Sublease, the New Lease, or in the Subleased Premises
by either Landlord or Tenant thereunder.
(b) Guarantors' liability under this Guaranty shall continue until all
Guaranteed Obligations to Landlord have been satisfied.
D-1
EXHIBIT D
To Amended And Restated Agreement Re Ground Lease
(c) Each Guarantor hereby warrants and represents to Landlord that he now
has and will continue to have full and complete access to any and all
information concerning the transactions contemplated by the Agreement
or referred to therein, the value of the assets owned or to be
acquired by Tenant, Tenant's financial status and its ability to pay
and perform the Guaranteed Obligations owed to Landlord. Each
Guarantor further warrants and represents that he has reviewed and
approved the Agreement and is fully informed of the remedies Landlord
may pursue, with or without notice to Tenant, in the event of default
by Tenant under the Agreement. So long as any of the Guaranteed
Obligations hereunder remains unsatisfied or owing to Landlord,
Guarantors shall keep fully informed as to all aspects of Tenant's
financial condition and the performance of the Guaranteed Obligations.
(d) Each Guarantor hereby acknowledges and agrees that he may be required
to perform the Guaranteed Obligations in accordance with the terms
hereof notwithstanding the fact that Tenant is in default of its
obligations under the Agreement, the Sublease, the New Lease, or any
other obligation referred to therein.
(e) Each Guarantor hereby acknowledges and agrees that he shall be
required to perform the Guaranteed Obligations in accordance with the
terms hereof notwithstanding any termination of the Agreement, the
Sublease or the New Lease.
4. The liability of Guarantors under this Guaranty is a guaranty of payment
and performance and not of collectibility, and is not conditioned or
contingent upon the genuineness, validity, regularity or enforceability of
the Agreement, the Sublease, the New Lease or other instruments relating to
the creation or performance of the Guaranteed Obligations or the pursuit by
Landlord of any remedies which it now has or may hereafter have with
respect thereto under the Agreement, the Sublease, or the New Lease, at
law, in equity or otherwise.
5. Each Guarantor hereby waives to the extent permitted by law: (i) all
notices to Guarantors, to Tenant, or to any other person, including but not
limited to, notices of the acceptance of this Guaranty or the creation,
renewal, extension, modification, accrual of any of the Guaranteed
Obligations owed to Landlord and, except to the extent set forth in
Paragraph 7 hereof, enforcement of any right or remedy with respect
thereto, and notice of any other matters relating thereto; (ii) diligence
and demand of payment, presentment, protest, dishonor and notice of
dishonor; (iii) any statute of limitations affecting Guarantors' liability
hereunder or the enforcement thereof; and (iv) all principles or provisions
of law which conflict with the terms of this Guaranty. Guarantors further
agree that
D-2
Landlord may enforce the Guaranty upon this occurrence of an event of
default under the Agreement (as event of default is defined therein) with
respect to Tenant's performance of any Guaranteed Obligation. Moreover,
Guarantors agree that Guarantors' obligations shall not be affected by any
circumstances which constitute a legal or equitable discharge of a
guarantor or surety.
6. Guarantors agree that Landlord may enforce this Guaranty without the
necessity of resorting to or exhausting any security or collateral and
without the necessity of proceeding against Tenant or any other guarantor.
Each Guarantor hereby waives the right to require Landlord to proceed
against Tenant, to proceed against any other guarantor, to foreclose any
lien on any real or personal property, to exercise any right or remedy
under the Agreement, to draw upon any letter of credit issued in connection
herewith, or to pursue any other remedy or to enforce any other right.
7. (a) Guarantors agree that nothing contained herein shall prevent
Landlord from exercising any rights available to it under the
Agreement and that the exercise of any of the aforesaid rights shall
not constitute a legal or equitable discharge of any Guarantor.
Guarantors hereby authorize and empower Landlord to exercise, in its
sole discretion, any rights and remedies, or any combination thereof,
which may then be available to Landlord, since it is the intent and
purpose of Guarantors that the obligations hereunder shall be
absolute, independent and unconditional under any and all
circumstances. Without limiting the generality of the foregoing, each
Guarantor hereby expressly waives any and all benefits under
California Civil Code ss.ss.2809, 2810, 2819, 2845, 2847, 2848, 2849
and 2850 and California Code of Civil Procedure ▇▇.▇▇. 580a, 580d and
726. Notwithstanding any foreclosure of the lien of any security
agreement with respect to any or all of the real or personal property
secured thereby, whether by the exercise of the power of sale
contained therein, by an action for judicial foreclosure or by an
acceptance of a deed in lieu of foreclosure, Guarantors shall remain
bound under this Guaranty.
(b) Each Guarantor agrees that he shall have no right of subrogation
against Tenant or against any collateral or any right of contribution
against any other guarantor unless and until all Guaranteed
Obligations have been indefeasibly satisfied, and Landlord has
released, transferred or disposed of all of its rights, title and
interest in any collateral or security now or hereafter given to
Landlord as security for the Guaranteed Obligations. Guarantors
further agree that, to the extent the waiver of Guarantors' rights of
subrogation and contribution as set forth herein is found by a court
of competent
D-3
jurisdiction to be void or voidable for any reason, any rights of
subrogation and contribution Guarantors may have against Tenant or
against any collateral or security, and any rights of contribution
Guarantors may have against any other guarantor, including, without
limitation, any of the other Guarantors, shall be junior and
subordinate to any rights Landlord may have against such other
guarantor. Landlord may use, sell or dispose of any item of collateral
or security as it sees fit without regard to any subrogation and
contribution rights Guarantors may have, and upon disposition or sale,
any rights of subrogation and contribution Guarantors may have shall
terminate.
(c) Notwithstanding anything to the contrary contained herein, no
provision of this Guaranty shall be deemed to limit, decrease, or in
any way to diminish any rights of set-off Landlord may have with
respect to any cash, cash equivalents, certificates of deposit,
letters of credit or the like which may now or hereafter be deposited
with Landlord by Tenant.
(d) To the extent any dispute exists at any time between any Guarantor and
any other guarantor, including, without limitation, any of the
Guarantors, as to such Guarantor's right to contribution or otherwise,
Guarantors agree to indemnify, defend and hold Landlord harmless from
and against any loss, damage, claim, demand, cost or any other
liability (including reasonable attorneys' fees and costs) Landlord
may suffer as a result of such dispute.
(e) Guarantors shall not, without the prior written consent of Landlord,
commence or join with any other party in commencing any bankruptcy,
reorganization or insolvency proceedings of or against any Tenant. The
obligations of Guarantors under this Guaranty shall not be altered,
limited or affected by any case, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of any Tenant or by any defense which any Tenant may
have by reason of the order, decree or decision of any court or
administrative body resulting from any such case. Landlord shall have
the sole right to accept or reject any plan on behalf of any Guarantor
proposed in such case and to take any other action which such
Guarantor would be entitled to take, including, without limitation,
the decision to file or not file a claim. Guarantors acknowledge and
agree that any interest on the Guaranteed Obligations which accrues
after the commencement of any such proceeding (or, interest on any
portion of the Guaranteed Obligations ceases to accrue by operation of
law by reason of the commencement of said proceeding, such interest as
would have accrued on any such portion of the Guaranteed Obligations
if said proceedings had not been commenced) shall
D-4
be included in the Guaranteed Obligations because it is the intention
of the parties that the Guaranteed Obligations should be determined
without regard to any rule or law or order which may relieve any
Tenant of any portion of such Guaranteed Obligations. Guarantors
hereby permit any trustee in bankruptcy, receiver, debtor in
possession, assignee for the benefit of creditors or similar person to
pay Landlord, or allow the claim of Landlord in respect of, any such
interest accruing after the date on which such proceeding is
commenced. Guarantors each hereby assign to Landlord such Guarantor's
right to receive any payments from any trustee in bankruptcy,
receiver, debtor in possession, assignee for the benefit of creditors
or similar person by way of dividend, adequate protection payment or
otherwise. If all or any portion of the Guaranteed Obligations is paid
or performed by any Guarantor, the obligations of Guarantors hereunder
shall continue and remain in full force and effect in the event that
all or any part of such payment(s) or performance(s) is avoided or
recovered directly or indirectly from Landlord as a preference,
fraudulent transfer or otherwise in such case.
8. All notices, requests and demands to be made hereunder to the parties
hereto shall be in writing (at the addresses set forth below) and shall be
given by any of the following means: (a) personal service (b) electronic
communication, whether by telex, telegram or telecopying (if confirmed in
writing sent by registered or certified, first class mail, return receipt
requested); or (c) registered or certified, first class mail, return
receipt requested. Such addresses may be changed by notice to the other
parties given in the same manner as provided above. Any notice, demand or
request sent pursuant to either subsection (a) or (b) hereof shall be
deemed received upon such personal service or upon dispatch by electronic
means, and, if sent pursuant to subsection (c) shall be deemed received
five (5) days following deposit in the mail.
To Guarantors: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
c/o The ▇▇▇▇ Company
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mr. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
D-5
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Landlord: Irvine Industrial Company
c/o The Irvine Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Attn: Vice President-Operations
With copies to: The Irvine Company
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Attn: General Counsel
O'Melveny & ▇▇▇▇▇
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Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., Esq.
9. Each Guarantor represents and warrants to Landlord as follows:
(a) No consent of any other person, including, without limitation, any
creditors of such Guarantor, and no license, permit, approval or
authorization of, exemption by, notice or report to, or registration,
filing or declaration with, any governmental authority is required by
such Guarantor in connection with this Guaranty or the execution,
delivery, performance, validity or enforceability of this Guaranty and
all obligations required hereunder. This Guaranty has been duly
executed and delivered by such Guarantor, and constitutes the legally
valid and binding obligation of such Guarantor enforceable against
such Guarantor in accordance with its terms.
(b) The execution, delivery and performance of this Guaranty will not
violate any provision of any existing law or regulation binding on
such Guarantor, or any order, judgment, award or decree of any court,
arbitrator or governmental authority binding on such Guarantor, or of
any mortgage, indenture, lease, contract or other agreement,
instrument or undertaking to which such Guarantor is a party or by
with such Guarantor or any of such Guarantor's assets may be bound the
penalty or remedy for which violation would impair such Guarantor's
ability to perform its obligations under this Guaranty, and will not
result in, or require, the creation or imposition of any lien on any
of such Guarantor's property,
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assets or revenues pursuant to the provisions of any such mortgage,
indenture, lease, contract or other agreement, instrument or
undertaking.
10. This Guaranty shall be binding upon Guarantors, Guarantors' heirs,
representatives, administrators, executors, successors and assigns and
shall inure to the benefit of and shall be enforceable by Landlord, its
successors and assigns.
11. As used herein, the singular shall include the plural, and the masculine
shall include the feminine and neuter and vice versa, if the context so
requires.
12. If any Guarantor or Landlord incurs any expense, including reasonable
attorneys' fees and expenses in connection with any action or proceeding
against the other, arising out of or in connection with this Guaranty,
whether or not such action proceeds to trial, the sums so paid by the
prevailing party shall be due from and be paid by the nonprevailing party
on demand.
13. This Guaranty shall be governed by and construed in accordance with the
laws of the State of California.
14. Every provision of this Guaranty is intended to be severable. In the event
any term or provision hereof is declared to be illegal or invalid for any
reason whatsoever by a court of competent jurisdiction, such illegality or
invalidity shall not affect the balance of the terms and provisions hereof,
which terms and provisions shall remain binding and enforceable.
15. No failure or delay on the part of Landlord to exercise any power, right or
privilege under this Guaranty shall impair any such power, right or
privilege, or be construed to be a waiver of any default or an acquiescence
therein, nor shall any single or partial exercise of such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege.
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IN WITNESS WHEREOF, Guarantors have executed this Guaranty as of the
day and year first above written.
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/s/ IRVINE AZOFF
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IRVINE AZOFF
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