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HomeMy WebLinkAboutRobert L. Mayer - 1993-06-14 (9) 14 . 4 Deferral of Rent. There shall be no abatement or deferral of rent in connection with any damiage or destruction to the Improvements unless the casualty loss exceeds twenty--five percent (25%) of the gross useable area of the Promises. in such event, and only in such+ event, if Lessee , i suffers such a casualty loss due to circumstances that are not this to Lessee ' s intentional . or negligent acts or omissions, the ...: tent otherwise chargeable pursuant to Article: II above shall be reduced temporarily by a fraction, t'.:e numerator of which is } the total groan leaseable area of the Improvements from which J business cannot be conducted during the period of rite casualty 1 loss and the denominator of which is the total gross leaseable area of the Improvements immediately prior to the casualty i lass. The amount of the temporary reduction shall not be , abated or excuedd but shall he deferred until the earlier of (i ) the date on which Lessee receives any payment of business interruption insurance proceeds, jr (ii ) * the date which is two (2 ) years subsequent to the date of the casualty loss. On. the earlier of such date, the amount of the deferred rent shall be a� paid to Lessor, together with interest from the date of the ! # casualty to the dater of payment at a rate equal to three ( 3 ) percentage points over the discount rate of the Federal Reserve Bank of San Francisco (riot to exceed the maximum legal .raise mY permitted ,by law) . t A2TAQIMM gyp. i 00/01/08 0 n/2460/12 W67- dEM �N 14 , 5 Damage or Destruction in Last Years or Due to Ouse Not Rejuired to Be Covered B,y Insurance. If either ( i ) the Improvements Are destroyed or substantially damaged by f.ii-e or casualty when ten ( 20) or fewer years remain in the Term, or 1 ( i.i ) the Improvements are destroyed ox substantially damaged by a casualty which Lessee is not required to ( anti has not) insured against, then Lessee may cancel this Lease by written a notice of election to Lessor within ninety (00) days after much substantial damage or destruction and the rents and other charges payable by Lessee hereunder shall be payable though the termination date plus any additional t1me required for Lessee to Comply with the requirements to remove the Improvements and restore the Premises as required by this Lease. In such event all sums received by or due to Lessee on account of insurance covering the Improvements shall be paid to Lessor except that the Premises shall be re-delivered to Lessor after removal of the Improvements and debris, it requested by R Lessor within thirty (30) days after Lessee delivers to Lessor its notice of termination, and the expense therefor shall be Paid out of tho sums received or due on account of such insurance or by Lessee, if no insurance is available therefor . ..a Asp used herein, "substantial damage" within the last ten ( 10 ) years of the Term shall mean damage or destruction, the r raasssonabiy estimated cosset of repair of which in twenty-'five percent (25%) or more of the rent payable during the remainder of the Teruo. As 1u3ed herein, "ssubstuntial damage" Caused by a a�b8/Q1/8�i s 063sn/2460/12 -��- womb { i' ' casualty not required to be ( and not) covered by insurance :shall mean damage or destruction which is twenty-five percent (25%) or more of the replacement cost of the Improvements. In the event Lessee does not timely elect to tunnel this Lease as not forth in the first sentence of this Section 14'. 5 , Lessee shall promptly ccrtunence and complete the repair, rebuilding and seefurnishing of the damaged or destroyed Improvements in sccat-c':.ance with Section 14.2. 14. 6 Limitation oii Lessee ' s Obligation to Reutora r.nd Right r to Terminate Lease . Notwithstanding any other nrovisioi: of M this Lease to the contrary, prior to a Disposition. Transfer , Lessee shall have no obliga,cion under th.ib krticle XIV to seek oz• obtain insurance proceeds, to restore or repair the Improvement3, or to continue the operation cif •thu businesses on the premises, and Lessee shall have no right to tcrminate this Lease because of any casualty loss; provI ded, however, that if w Leased elects after a casuclty loan not to repair or restore i the Improvements , Lessee: shall notify Lessc;r in writing of such �( election within a reasonable time, not to exceed one hund=•ed twenty (220) days, after r.uch casualty loss, and shall thereafter diligently proceed to demob ,h and Clear any remaining damaged portion of the Improvements from the J s Promises. In such event, all, insurance proceeds ( lose f innuranc• proceeds spent to d*molish and clear such remaining damaged portion of the Improvements) shall be paid to Lessee. i a6 fox/" '! '0635n/2460/12 -69- lam' fI N 1 ARTICLE XV. EMINENT DOMAIN i 15 . 1 Condemnation of Premises . If the whole of Lessee ' s __. interest in the premises shall be Laken by any public authority tinder the power of eminent domain or sold c^ public authority under threat: or in lieu of siich a taking, except for a taking for a temporary use, then tha Term of this Lease shall ceas+r, as of the day possession shall be taken by such public authority, And the rent and other charge$ shill bo paid up to that day with a proportionate refund by Lessor of such rent and other chairgos as may have been paid in advance for a period subsequknt to thy: d;.te of the taking, 15 . 2 Partial Condemnation. ( a) More 'Thai, 25% of Improvements. If more than twenty-five percent (25%1, but less than all of Lossce ' l ' lfterest in the Improvements shall be taken under eminent j domain, or sold to public authority under threat or in lieu of such a taking, except for a taking for a tempera►ry use., Lessee shall have thM right either to terminates this Lease as of the day possession is taken by public authority or, to continue- in .�+ the possession of the remainder of the Premises, upon notifying Lessor in writing of Liasee ' s intention within thirty (30) days µ after the taking of possession b* the condemnor. In the event T,ess** edicts to remain in possession, all of the terms herein provided skull continue in effect, except that as of t::e say 08/01,/88 L*35U/2460/22 -70!- 1 ri possession is taken by public authority, the rent shall bo reduced in proportion to the amount of the Improvements taker. There!.fter, Lessee shall, at :its own cost and expense , make all the necessary repairs jai• alterations to the. Improvements, so a& to cor ;Aitute the remAini ng Improvemen-*:n a complete architectural unit(s) , , ;:and Lessee, at Lessee' s sole cost, shall . similarly act with respect to trade fixtures, furnishings and equipment . (b) 252g or Less of Improvements . Except for a taking for a temporary use ( subp&ragraph ( e) below) and a taking during the final ten ( 10 ) years of the term M, ( subparagraph ( f ) below) , if twenty-five percent ( 25%) or less of Lessee' s interest in the Improvements shall be taker,, the Term shall cease , only an the part so taken, as of the day possession shall be taken by s�ic:h public authority, and Lessee shall pay rent up to that day, with Iappropzlate refund by Lessor of such rent as may have been paid in advance for a : period rsubzec;ruent to the date of ti•w taking in proportion to the Amount of the subject Improvements taken, and thereafter fate rant shall be reduced ir, proportion to the amount of the s;xbject Improvemonts taken. Lessee shall, at its expense, make a1.1 necessary repairs or alterations to the Improvements, so as to Constitute the remaining Improvements c complete architeetur*1 unit( * ) , and Lessee, at LessW s sole cost, lsi,alI siailarly act with respect to trade fixtures, iurni.ehings and equipment, R"ACM9M me. i 08/01/88 0635n/7460/12 -71- r: ! UWAlb i (c) Partial taking of the Promises exclusive of Lmprpvqments. In the event of a taking of leas than all of Lessee ' s interest in that portion of the Premises exclusive of the Improvements, this Lease shall remain In lull force and effect, and thereafter the rent shall be reduced in proportion ' to they reduction in t*ie fair rental value, if any, of the Promises. If Lessor and Le.--see are tenable to resolve a dispute regarding such a reduction in the fair wl;ntal value of the Promises within thirty ( 30) days after the taking of possession I ' by the condemnor, the dispute shall be resolved by arbitration conducted in accordance with Article XXVII and with -the qualifications of the appraixeirs/arbitrators and the determination of value to be generally as not forth in Section .l (d) dale by Lessor. A sale by Lessor of its interest in the Premises to any authority having the power of eminent domain, either under threat of condemnation or while condamnation proceedings are pendinq, shall be deewtd a takin7 under the power of eminent domain for purposes of the allocation of damages under Section 15 . 3 but not for purposes of this Section 15 . 2 . .. to ' . (e) �mRorary Taking. If therei,i a taking q oA Lassoels intere&t in the Premises arid/or the Improvements for temporary use for a period not to excesd thirty (30) days, this Lease shall continue in full force and a-sect, and Lessee shall 0635th,, 24—LO/12 -72- I �+r rantiratie to comply with Lessee ' s obligations under this Lease, except to the extent compliance shall be rendered impossible or impracticable by reason of this temporn+ry taking . �a M Taking Daring Final. Years of Term. If there is a total az partial taking of the Improvements during the final ton (10) years of the Term, then Lessee may tc rr;inate thi e Lease by wr:'Ltten notice of election to LetiiRor delivered within �- thirty ( 30) days after the taking of possession by the � condemnor, and after the termination date Lessee shall have no l.J further obligation to pay rent that would otherwise accrue A after said date. 15 , 3 Lessor' s and ;iessee ' s Uama e,s. All damages awarded for such tak-nq under the power of _minent domain or proceeds fxom the sale under threat or in lieu of sucA. a taking, whether for, the whole or a ps;•t, of the Premises, shall be divided among �1 Lessor. Lasses , Lender ( as defined in Article XVI T ) , and any other party holding an encumbrance an the Premises in accordance with the; value of their respective estates. ARTICLE XVI . ASSIGNMENT AND SUBLETTING 16. 1 Assignment. The qualifications and identity or Lessee ' are of particular concern to :jessor. It is because of those �i qualifications and identity that Lessor has entered into this 1 Dress with Letase• . Aecurdinyly, Lessee shall not, except as b'1"3'llM no 0 i 0635n/2660/12 -73 4 r 1 • • 1 , w . .1 1 I 1 ` 14 permitted in this Article XVI , assign all of any part of this Lease or any of Lessee ' s rights hereunder without the priur written approva.-. of Lessor . No purported assignment in violation of this Leaee shall be valid or effective . Lessor .. x agrees that it will not unreasonably wit2Lhold or condition such f sapp::oval provided tya.t Lessee is not in default hereunder. In .ri t.hf s regard, Lessoor further agrees that in the avant of a 4J� ;.� request, by Lex&ee to a3algn Lessee ' s interest in the Lease or the Fremisea, Lessor shell grant such approval provided (i) such assignment is nade to a responsible third party who will undertake L.aieseQ ' sss sesspa;zssl.bilit:ies underthis Lease to L� uza and develop the Frenize,ss3, or portion thereof, in accordance .3 with this Lease; (ii ) if the assignment occurs prior to the r issuance of a Cartificsates of Completion pursuant. to Section 425 of the DDA that such third party ahali demonstrate ; a qualifications and oxpekience with respect to the type of development prcpoeed herein and in the DbA to assure the development and operation of the Improvements, or portion thereof; equal to or greater than the qualifications and experience of Robert L. Maker, as Trustee of the Robert L. Mayer Trust of 19620 dated June 22, 1982 , as amended or successor Lesser; and ( iii ) such third party sahall demonstrate sufficient financial resources or commitments to assure operation (and, If the assignment occurs prior to the issuance i of • Certificate of Completion pursuant to Section 415 of the DDA, daveel.opoent) of the Promises, or portion thereof, in &22ACA)DW no. i C�5/C�1/58 0655n/1450/12 -74- r accordance With this Iaea$e . For purposes of clause (ii ) above , Leissor shall approve the proposed assignee if the a.ssigncu do!rnonrstrates to Lessor reasonable satisfaction that: it possesans the flnanci.sl resources and abilities equivalent to . 0 or greater than Robert L . Mayer as at the date of tads Lease , provided that the foregoing r1jal! not be construed to imply that a proposed assignee with a net wotth loss than the not �i worth of Robert L. Mayer an At the data of this Lease shall not be an acceptable assignee . Leamor may grant or deny such t approval to a third perry ,not meeting any of the foregoing requirenants in Lassor' s sole discretion. For the proposed assignment to be effective, the r . grantee, assignee or transferee must furnish Leasor with a written anti fully executed and acknowledged assignment and ammumpt:ion agreeme.it, pursuant to which the grr;ntee, assignee J or transferee agrees tr� comply kith and perfori,, all the obligations of Lessee under this Lease. All of the foregoing documents shall be in form and substance acceptable to Lessor and Its attorneys . The approval by Lessor of one assigivnent, i whether by operation of law or otherwise , sh.�11 trot be deemed to be are approval by Lessor of any subsequent assiSi-unent ,d NotwItbstanding any other provision of this Lease to ` the contrary, Lessor approval of on assignment of this Lease or any in'Lereat heroin shall not be required in connection with any of the fallowing: 4 0635nf 2460/1i *%75- W' - ..w, le r , ( a) Any transfer to any entity or entities in which y either Lessee or Robert I,. Mayer retains a minimum of fifty-one i percent (510%) of the ownership or beneficial interest and retai:o management control . . 3 (b) Transfers resalti.r.q from the death or mental or 1 ' physical, incapacity of an individual . (c ) Transfers or assignments in trust for the benefit of s, :ipouse, children, grandc nildren, or other family membere , (d) A transfer. f Lessee ' s interest in the Premises to a mender approved by Lesser, in ac )rdance with this article hV'I, incl.udizg a transfer at foreclosures (or- it . conveyance thereof in lieu of a foreclosure ) pursuant to a foreclosure thereof by a Lender . (a) The conveyance or dedication of any portion oi- Lessee ' s interest in the Premises to the City or othix IJ appropriate governmental agency, car the granting of easements or permits in accordance with this Lease to facilitate the development or operation of the Premises or the development or operation of any of the other Separate Development Parcels" within the "Commerci-al Portion of the "Site" (as those terms are defined in the DDA) . ( f) The leasing of any part or parts of a building or structure for coccupancy, or enterinc into of any concession agrewwr.a , licenses, or other contracts in the normal course mi of yawning and operative the Improvements on the Premises. �i 0642n/ 2,A©/12 •78" •ti i (g) A transfer of stock in a publicly held corporation or the transfer of the benpFicial interest in any publicly held partnership or real estate investment trust . (h) The :-,ubdiv.i lion and cons►ayance of individual hotel unite on the Premises solely for purposes of Financing j the development, maintenance , and/or operation of a hotel F there on, in accordnnce wit2 the DDJa, provided that: ( i ) the subdivision of the Premises or portion thereof into comma cal condominium units shall not allow the occupancy of hotel rooms ,.i fo:; any use other than, as individual transient occupancy hotel rooms, and ( ii ) commearcia] condominium units shall not be subdivi.ded or conveyed as a time-share, or time- share interest in an individual hotel v ,iit (as these terms are: defined in California Ausinese and ProfQssiona Code ~action 11003 . 5, as t%e same now exists: or may hereafter be zimendi_d) , time-shares and time-sharing arrangrementd being strictly prohibited hereby; provided, however, that it is understood and agreed that any method of financing allowing the owner of a condominium hotel unit to occupy such unit for a period or periods not to exceed the 1 --eater of two (2) weeks per year or tan percent ( 10%) of �y{ the number of day s per year that tho unit is occupied by boterl guests shall not be deemed to be a timo-share arrangement . }, Legs** shall deliver written notice to Lessor requesting approval of any assignment recpii ring Lessor approval herounder. Such notice shall be accomranied by sufficient otvidence regarding the proposed asaignee' s devfelopme t !►1"'1'��'lDL�11'1' � i oafai/�� 044in/1460/22 -7760 r r r t •r;y .qualifications and experience and its financial commitments and resources to enable Lessor to evalurte the proposed assignee -i pursuant to the criteria set forth in the firzt paragraph of this Article: Xyz . Such information shall include, without limitation, a balance sheet of the proposed subtenant or ' M ' assignee as of a date within ninety ( 90) days of the request , i for Lessor' s consent and statements of income or profit and lies of the proposed subtenant or assignee for the two-year ,.a period preceding the request for Lessor' s consent, if the flame* VA be avaAlable ( or such ether similar information as Ahall be y available at the time the request fo:• approval of the assignmant is made ) , and a written statement in reasonable _q i t detail an to the business and experience of the proposed Aub:*enant or asesignaL during the five (5 ) yearA preceding the request for Lessor' s consent. ' + Within thirty (30) days after the receipt of Lessee ' s written notice requesting Lessor approval of an assigrunent, ' Lesson shall respond in wr;.tinq by starting what further k� :nformatiov, if any, Lessor reasonably requires in order to Ow determine whathar or not to approve the requested arasignr.ent . Upon i~ecelrt of such a timely responses, Lensee (shall promptly �i furnish to Lessor such further ir,'formation as may be reasonably requested, Losses' s requ4eirt for approval of an assignment and delivury oil neceneary information for financingf purposes shall be deemed complete twenty (20) dayo aftor Lessor' s receipt thereof and J i 0642n/2"0/1ppyy 7 N rr r N 4 1 ••v Lesace' s request for approval of an assignment and. delivery of necessary information for all other Types of assignment Shall be deemed complete thirty (30) days after Lessor ' s receipt ' theracf if Lessor does not deny approval or i.f no timely I response requesting further information regarding ':2,; proposed Assignee is delivered to Lessee, or, if such a timely response requesting further information is received, on the date which is fifteen (15 ) days after the -'ate that Lessee delivers such additional information to Lessor . Once Lessee' s request for approval of an assignment has been accepted art complete or is �.o deemed complete, Lessor shall not be entitled to demand mdditional information or to disapprove the assignment on the wr basis that Lessees has not furniahed adequaltm or complete information. None of the foregoing shall restrict Lesson' s y i rights to deny epi rovol of any assignment not , found acceptable by Lessor ,ptrsuant to this Lease. Any assignment requiring Lessor' s consiEnt shall only be effective upon Lessor' s written consent to such asaignment. Lessor shall appr,.vee or disapprove any reque!wted aesig=ent for fi*.anctng purposes requiring Lessor approval within thirty '(30) days after Lessee' s request therefor is accepted as complete or Is deemed complete, and Lessor she.11 apprave or disapprove any other type of requested assignment requiring 1 Lessor approval within forty-five (45) days after Lessee' s request the;:afor is accepted as complete or is deemed r.ompleta. Any ,di xapproval shall be in writing and shall r spocify trio reasons for the disapproval and, if applicable, the 0642n/24t0/12 -79. . 0 i womb 1 i conditions required to be satisfied by Leouee in order to l obtain approval . If Lessee' s initial notice roc .+•estinq approval of are assignment for financing purposes (buff not any d • ctheer type of assignment.) states that t-he assignment will be i deemed approved unless rejected within the time required in 1:1 irS is Loaasea, Lessor' s failure to `i:iely disapprove the •w assipnent rha!l bo cori lusiveely deemed tiy. constitute an approval.' No assignment of Lessee ' s obi igation;j 1 •ith respe t t to the ?remises:, Whether or not Lessor' s approval is required therefor I'd (but sepasGifica�lly excluding those types of assigraAants ., identified in subparagraphs (d) , ( e ) , and ( f) , (g) , and (h) ) , ' Stall kee dffactive unless and until the proposed assignee eexacuteeu and delivers to Lessor an agreeemant iii form reasonably R.J watiefcctory to Lessor' s attorney assuming this .obligati.cne of i Less6e which have been assigned.. Thercafter, the assignor shall. remain rasponalblea to Lesacv foe- purformance of the obligations asruned by the assignees unl.ean (i ) Lessor releases the assignor in writing or ( ii ) all of tl.,q applicable i requirements set forth in this i�eeti.on 16 . 1 are £ul3y satisfied and the Aa signor i fi ' not them ire uz%fault under this Lease, in which araeent, atmignoar shall remain :-osponseibl.e to Lessso!: for pelerformanco of the obligations arising prior to the effe kk tive date 9t the iosigmaht, arty shall be released from any obligation or liability arising subsequent � • •y quent to the effective �e < d&%4 of the assigment. NO. i MUn/ 1-660/22 r�0 i 1 if i No -.onsttn'L or approv::l L, nessor of any assignments ! t'eq11i1C'7 Y'1a Z,C sso- ' s nnpr oval constitute a '.urther waiver of the prov131f)ns of: this; 1,rtic1a and agreed that this j t Lease is a lease cof real. property within the jlleaning of Subsection 36.15 (b) (3 ) of the Bankruptcy Code, 11 , U . S .C . To the Pxt-ent not prohibited by prc•,•isions of the Bankruptcy Code, 11 U.. S . C. Section 101 c•t eer. , inducing Sect.lon 355 ( f) ( 1 ) thereof, Lessee on behalf of itself, creditors , administrators and assigns waAives the applicahility of Sections 541 (c) F-nd of the Bankruptcy Coda of 1578 unless the proposed i the esv.att of the bankrupt meets ess �"uee of the Tt•a;s�:��F for a ,. standards for consent . Lessor: has entered :into this Lease wigs Lessee in order. to obtain for tho oenefit of the Premises the unique t:yl,)ec of facilities, businesses, services tnd goods which Lessee: can bring to the -Premises; the foregoing . ta110h1h4 Lion or, asaigrutent or sublotting is expressly agreed to by Lessee in cr.Is{deration of such fact. Any person or entity to which this Lease is assigned pursuant to the provisions of I the Bankruptcy Code shall be deemed wi thoitt further act or deed ..r to have assumed all of the obligations arising under, this Lease f on and after the date of i;nch assignment . Any such assignee shall upon demand execute and deliver to Lessor an instr,iment no+^firming such assumption. • r . I 0642zV2467•/12 � �� 'mot R s Vee Lr: .se_e agrees to reimburse r,essor for t essol: ' " rea►sonabla costa and attorneys ' fees incurred in ccnnect_icn with the processing and docuti:entF-tion of any requested assignment, subletting, ' trf.nsfe?:, change of ownership or hypnt:he !&ti.on of thi c Lease o'r Lessee ' iriL c.:!:-est in and to the Premises , or any part thereof, which requires Lessor ' s approval hereande+i. , in an amount not to exceed Two 1.1=5and Five Hundred Dollars ( $2 , 500. O0. ) for each such assignment (which amount shall be adjusted each year by the consumar price index rating for -the most proximate locatic-n or an equivalent atanderd measure of general inflation) . 16 . 4 No Waiver. The acceptrance by Lessor of any payment duce hereunder from any other person shall not be deemed to be a waiv3z by Lessor of any provision of thi E Tease or to be a consent to any assi.gnmerit or suble°ttinq . Consent by Lessor to one or more assignments of this Lease or' to one or morn sublettingss of the Premises shall not operate as a waiver or estoppel to the future enfor--ement by Lessor of its rights pursuant to the provisions of this Lease . I - ,ARTICLE XVIa . LEASEHOLD FINANCING: RIGHTS OF LEASEHOLD LE14DER 17 . 1 Mrtaafje of Lease. Lesser_ may on.ly ancumbnr the 1e484hold estate cr*atad hereby in accordance with the rtqulrements of this Article and Arlicla X'V'I . =11=0 1 08/01/" 0642n,/2460/12 -82- r , J t 17 . 2 Definitionu . As u:,ad to this Lease, "Leasehold Mos tgL%ge" :zhall mean any martnage , deed of ,trust , or other security instrument, including, without l in.ttation, an i assignment by Lessee of the rents , issues and profits from t1le i Premises , which constitutes- tier. on the e::tate crc.ated by this Lj%ase , ar.-i hb cr. has br I,n apprcved or is deemed approved by Lessor, and "Lender" shall mean the. owner and holder of the Leasehold Mortgage . 17 . 3 Ri , hts ofLender. Subject to prompt compliance by Lender with all obligations imposed on Lender by this Lease, during the continuance of any Leasehold Mortgage and until such time as the li,.n of ally Leasehold Mortgage has been extinguisl-ua: ( a ) Lessor shall not agree to any mutual termination nor accept any surrender of this Lease , nor shall Lessor cunnent to any amendment or modification of this Lease which would have a material adverse effect on Lendar, without the prior written consent of Lander. (b) Notwithstanding any dPfaiult by Lessee in the performance or observance of any agreement, crvenasnt or � condition of this Lease or. tl- part of Lessee to be performed or observed, Lessor shall have right to terminate this Lease unless an event of default shall have occurred and be continuing, Lessor shall have given Lender written notice of j such event of default, amd Lender shall have failed to remedy *uch default promptly or to acquire Lessee ' s estate created s 0642a/2460/12 •83� dw� � M 1 6 y I bereby or commence foreclosure or other app c-priatr pro. _,edings in the nature: thereof promptly and remedy such default promptly, ell as set forth in, and within the time specified by, this Ser,':ion 17 . 3 . { ,: ) Londcr shall lviv, the right, Lut :ict tljc tibligation, at any time prior: to termination of this Lease to pay all of the rents dupe hereunder, to effect any 9.nsurance , to pay any taxes andassessments, to make any repairs and improvements, to do any rather act or thing required of Lessee ' hereunder, and to do any act or thing which may hie necessary and proper to be done in t:.te perforini;.nce and observance of the agreememtm, covenants, and conditions hereof to prevent termination of this Lease. Ail payments so made and all things mo done and performed by Lender shall be as effective to prevent a termination of thin Lease as the same would have been if mace, done, and performed by Lessee instead of by Lender . (d) Should any event of default under this Lease occur, Lender shall have sixty (60 ) days after receipt of . notice from L*ssor netting forth .he nature of such event of default, and, If the default is such that possession of the Premises may be reasonably necessary to remedy the default, a reasonable time after the expiration of such sixty ( 60 ) day periodwithin which to remedy such default, provided that (A) Linder shall have fi.11y cured any default in the payment of any monetary obligations of L+easee under this Lease, including Interest and late fees, within such sixty (60) day period and ' ATTACMMT Flo. 6 0642r&/2 460j13 W 84- r' � ti �.w � R �ll 4 shall continue to pny currently such monetary obligations as and when the same ;:trey due and (S) Lender shall. have acquired Lessee' s estate ;in the Premises created li�:re by or commenced foreclosure or other appropriate proceedings in the nature i thereof within such period, prior irheretc, and is diligently prosecuting any such proceedings . All rights of Lessor to 1 tarminare this Lea,-,.: as the result of the occurrence of any such event of def bult shall be subject to, and corditicned upon, Lessor having first gi-ven Lender written notice of each event of default as aforesaid and Lender hay.ing failed to remedy such default or acquire Lessee ' s estate in the premises .created hereby or commence foreclosure or other appropriate I proceedings in the nature 'thereof, and diligently conclude such proceedings, as oet forth in and within the time specified by this subparagraph (d) . ( a ) Any evexit , of default under this Lease which by Ls virtue of the nature thereof cannot be remedied by Lender shall be deemed to be remedied if (A) within sixty ( 60 ) days after race ving written notice from Lessor setting forth the nature of ^uch event of default, or prior therato, Lender shall have acquired Lessee' s eatite in the Premises created hereby or shall have commenced foreclosure or other appropriate proceedings in the nature thereof, (B) Lender shall diligently prossoute any such proceedings to completion, (C) Lender shall , have fully cured any default in the payment of any monetary obligations of Lease* hereunder, including interest and late �i ATTACMCM We i i .l . d tees , which do not recruire: possession of the Prem-.c;e, within Guch sixty ' 50) day period and iball thereafter continue to 1 faithfully perform all such munet:ary obligations which do not require possession of the and (Ill ) after gaining possession of. the Premises Lender performs all ether r • . obligati .,ins of Lessee hereunder as and when the same are .due, including wi.thout limi`at.ion, curing said event of default. In addition -to the rights set forth its this subparagraph 4 (e ) , Fender shall have the, option, to be exercised by wri :.er, notice to Lessor giver, within the aforesaid sixty 160 ) day I period, to obtain a new lease of the Premises upon the following terms and conditions: ( i ) Such new lease shall be effective as of the date of the termination of this Lease and shall be for the remainder of ;-:he Term of this Lease at the same rental and with the oame tests; covenants and conditions as are set forth l:.exe:in, and Lander shall assume* and he responsible , i for all obligations as leas-e thereunder to the same extent, mind subject to the same terms and conditions, ass Ai Lesaee is responsible hereunder; and ( i.i ) In addition to paying all current rent under. �d the new lease, Lender shall pay all unpaid rental (net of any income Lessor may have received from the Premises during such period) due pursuant to Article II of this . f Leaser and any other outstanding charges and Lender shall cure all other defaults, under this Lease that reasonably can be cured by Lender. 02/01/08 r 064 n/246^/12 �86• . r - MWO ! ti ti '. In lieu of executing a new lease in its own name , Lender :-.hall have the right. to designate a nominee which shall i become a lessee tinder the new lease ; provided that Lessor shall. have the same right to apprcve ( or disapprove ) Lender ' s r.orninee as sat forth :in Article �.�I 7 for- L esscr. ' s approval (hz disapproval ) of a pro-oozed assignee of Lessee ' s interest hereunder and all other conc'itions cont•:ai np:d in ( i ) and ( ii ) above are met. ( f) Subject 'to Section 16 . 2 , if Lender its prohibited A by any process or injuncticar issued by any court or by reaasan ' of any action by any court having jurisdict:iorL of any :d bankruptc7 or insolvency proceeding involving Lessees from commencing or prosecuting foreclosure or other appropriate i proceedings in the nature thereof, the times specified in i subparagraphs (d) and (e) abc -:z for comment inch ,or prosecuting such foreclosure or other proce-adings shall be extended .for Lhe period of such prohibition plus an additional period of sixty ( 60) days thereafter; provided that Lender shall. have fully cured any default in the payment cf any monetary obligations of Lessee under this Lease and shall continue to pay currently such monetary obligations as and ;when the same fall due . AUI (g) Lesso- shall mail or deliver to Lender a duplicate copy of any and all notices of default which Lessor may from time to time give to or serve upon Lessee pursuant tc I the provisions of thle Lease, and such copy shall be mailed or delivered to Lender si.uul.taneously with the mailing or delivery Sri 11'd"xJ1UT 90. i Y t•er of the :ame to LesseF . No notice of default by Lessor to Lesssee hereunder sha: 1 ?)c- deem►r ' to have been given insofar.- �a ?',ender ' s xig its un f.r this Article XVI : are concerned unless and until a copy the:eot shall have heezzi mailed or delivered to Z,e1r1&;,1- as he-,rein :,et forth. Les:;nr shall use its best efforts to comply with this L;ubparrvraph (g) but any failure to oo comply ehall not create any liability or. the part of Lessor . (h) "abject to Section 15. 1 ( f) foreclosure of a ` Leasehold Mortgage , or any sale thereunder, whether by judicial ► .a proceedings or by virtue of any power contained in, the ! T Leasehold Mortgage , o: any conveyance of the estate -in the P remiseh created. hereby from Lessee to Lender through, or in 1 ° lieu of, foreclosure or other appropriate proceedings in -the j ristux thereof, shall not require the consent of Lessor or constitute a breach of any provision of or a default under this Lease, And upon such foreclasure, sale or conveyance Lessor shall reco mite Lender as lessen hereunder . In the event Lender becomes lessee under th..zi Lease, Lender shall assume the obligations of Lesisee under th."Ls Lease or sucn new lease only for the period of time that Lender remains lessee thereunder. 17. 4 Consent of Lessor . In the event Lender requires any modification to the provisions of this Lease in order to secure its loan, Lessor agrees not to unreanonably withhold consent to such modification so long as ouch midification does not have an ad+.fflarre impact on any interest, right or remedy of Lessor betev►ru�i+ar. :4 t 011/01 A� F 0642n/i 460J22 •8�w r r ART ICLE XVIII . DEFP.'LT IR . 1 Events of Default. The word "defa,ilt, " as used in this Se.tfan la, shall mean and include r,ny c:.ne or more n3: the following ovents or occurrancea : ( a ) The failure by Lessee to make any payment of rent, or other payment required to be made by Lessee hereunder; as and whar due and the continuance cf sucl� failure for a period of. fifteen ; lS) days after Lessor skull have given Lessee wri.tter. notice F +ecifying the sane; (b) • The failure of Lessee to perform any term, condition, covenant or agreement of this Lease, excluding the payment of rent, and the continuation of such failure for a period of thirty ( 30) days after Lessor sha: ` a• ave given Lessee written notice specifying the same , or, in the case of a situation in which the default cannot reasonably be cured i within thirty (30) days, if Lessee shall not promptly, within 'Chirty ( 30 ) days after receipt of such notice , commence to �eemedy the situation by a means that can reasonab: ., ' it expected ( to remedy the sitgation within a reasonable period. .if �Ame , and diligently pursue the same to completion; i (c) The abanaonment ry Lessee of the premi sen or a r..bstantial p,• r ion thereof; f i red 06/02/88 1 06428/2440/12 a89.' Y 1 1, (d) ( i ) application for, cl7zisent to, or suffexing of, the appointment c� a rec:eiVeL, trustee or liquidator for all or for a substanti al por :.ion of its assets ; ( ii ) making a general assignment for the benefit of creditors ; ( ill ) beiAnc ad j u:igod a bankrupt; ( iv ) fi limy a volunt.::ry petition or ssuf iering an involuntary petition under any bankruptcy, arrangemen%-, reorganization or i.ncsolver:cy law ` (,unless in the case of an involuntary pstiti.on, the same is dismirsed within thirty ( 30) days of svch filing) ; or (v) suffering or permitting to continue unstayed and in effect for ten (10) consecutive days any attachment, levy, execution or seizure of all or a aub.staatial portion of Lessee ' s assets or of Les sea ' s interest in this Lease; ( e) Any attempt to cr,.�ate time share interests or time-sharing arrangements in the Premises without .�ess3or ' s3 written consent, except as specifically allowed in connection with a financing arrangement purs3uant. to Section 16. 1 (h) . 18. 2 Remedies. ( a) Ceneral . In the event of any default by Lessee, including the expiration of any applicable cure period Lessor may: (i ) Terminate Lessee ' s right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premissoo to Lessor. In such event Lesser shall be entitled to recover f; from Lessee: A'lTACO MM NO. i a6�a1��►6 0642n/2460/12 .*90- l . MM i ( an ) Thy: worth at the time of award o the unpaid rent wh.kch had been ear. nc:d at the time o.'.• tern,ina ti on; 'bb) Th-e uor-th rat the time of award of the Ct::'ouuZ. by which the uripaid rent which would have been earned after termination uTnt L 1 the time of award exceeds the amount of such loss that Lessee proves 3 could '',Ave been reasonably avoided; (cc) The worth at the time of award of the. ; a amount by which the unpaid rent for thn balance of the Tern aiter the time of :ward exceeds the amount of 1904eh loss that Lessee proves couli be reasonably avoided; and (dd ) Any other amount deemed necessary Arid/or allowable by applicable statute or decision to compensate Lessor for all the detriment proximately caunesd by Lessee' s: failure tc perform its otligations under this Lease or which, in the crdinar_ course - of events, Mould be likely to result therefrom, including, but not limited te, the cost of recovering pomsoz ,aion of the Premises, expenses of reletting, expe nsss of refttorinq the Premises to the condition _ required hereunder (if applicable ) , reasonable attorneys ' fees, and any other reasonable coats . The "worth at the times of award" of the amounts referred to in subparagraphs (am) and (bb) above shall be A'1"1'ACM Not i 09/01/88 t; . computed by allowing interest at the rate egOal to th,:� then current di.ncount rate of the Fiidrr. al T e-se',ve Board of San Franc,iaco ( as the same may change from time to time ) plus three percent- 3% ) (not to e.cceed :thy rc aximum legal rate by 1 1W) LIGM thL ClLr. to j Such alflourl":a accrued 'tv Lessor ur,•r i i the date of paymen� by Lessee . The worth at the time of award of ACh. amount -eferred to in subparagraph ( cc ) above shall be computed :.y discounting such amount at two (2 ) percentage paints above the discount ra-a of the Federal Reserve Bank of San Francisco at the time of award. ( ii ) Lessor may terminate this Lease by express written notice t .) La$rsae of its election to do so . Such terminr,titin shall not relieve Lessee of any obligation hzireunder which has accrued prior to the date of such termination . In the Event of such termination, Lessor ,skull be enti•zled to recover from T,•::ssee the amounts ectermined pursuant to paragraph ( i ) above . (b) Reasonable Rental Value . In any action for unlawful detainer commenced by Lessor against Lessee by reason of any default hervunder, the reasonable rental value of the Promises for the: period of the unlawful detainer shall be deemed to be the amount of rent and other charges reserved in this Lease for such period, unless hersor or Lessee shall prove to the contrary by competent evidence . 0642n/2460/22 0920 r yrM K L N. ( c j ::utn«1.a1:i•vf:. 1.1�sarne?di ol.i Except as may be jj(j. eiclfi c:al. ly pr.ividad herein, the rightw and remedies. reserved to L#asor an-3 Lessee hare.in, including those not specifically �jeericribeLi, shall be cumtilsOc ive and, except as provided by �::ali foy:ni a at:et:u;:ury or decisional `Ln el z ect iit the time , eithor Lossur ar Lemaea may purcue Any or all of such rights and rbAtedi #a at the same time or otherwise . ( d ) ,aassor ' s wNon-Waiver. No delay or omission of Lessor •tc exercise any right or remedy shall be construed as a waiver of any ri ;tht or remedy or of any default by Lessee hereunder. ::he acceptance by Lessor of rant or any - additional runt hereunder shall not be a waiver of any preceding breach or default by Lease* of any provision hereof, other than the .failures of Lease* to pay th" partAcular rent accepted , regardless of Lessor ' s knowledge of such preceding breach or default at the time cl acceptan•7ea o£ such rent, or a waiver of Lerror ' 8 right to exercises any remedy available to Lessor by virtue of such bresacn ar default. The acceptance of any payment from a debtor in possession, at trustee, a receiver or any other person acting on behalf of Lessee or Lessee ' s estate shall not waive or cure a default: under 3ectio,U 18 , 1 (d) . (a) Lessor' s Reentry. Lessee hereby irrevocably conmzLnta to Lebsor' s phaceable reentry, if Lessor so also--s . to the Promises upon the ^^rurreencee of any of the *vents of default specified in Sactiesa 18 . 1 above, ineludinq the expiration of any applicable &:ure, period. i1T'1matkow Noe i 00/01/89 0642n/2460/12 am93- r Mr. i i ' G". t} g ss r braitcj1ed { f ) T�f�:��ee :� Fir c�z�ch. .. ,yen ►. �ru h ��,� gee l�aa th",.s Lease and abandoned the Premises , yuhject to 1essor ' s i obligation to act r asonably to mitigate its damx,nes and to deduct f rcm any amounts othe•-wi se -$143.ng by Lessee to Lessor n;. a result thereof, this Lease -shall. continue in e-ffect for so Long as Lessor doe,. not terminate in wrAt'_ng in accordance w4.t-.h Section 18 . 22( a) ( ii ) above Les.,'.ee ' z night to oossession and Lessor may enforce zi.11 of its rights and remediN:s txadea: this Le$� including the right to recover the rent, as it becomes due . For purposes of. Article XVIII , the following do not constitute n termination of Lessee ' s right to posses.s.i,on: ( i ) Act i of maintenance Ur pr e'bervat:ion o.- e f forts to Xe let. the Premi sL s; ( ii ) The appointment- or a receiver vn the ` initiative of Lessor to protect its interests under this LeaBa. 0. ) Lessor' s Advances. In the event of any default by Lessee in the payment of money, other than rent, or the performan:e of abligationo required of Letsgee under this Lease, • and the expiration og any piri.od expressly provided fclr herein fcsr Lessea to cure said default After the dalivery of notice by Lessor, then in addition to the other remedies herein granted to Lessor; Lessor may, but shall not be obligated to do so, and without waiving or releasing Lezzee from any obligation, of .a thia Lease, make any payment and perform any other act on r Losasee ' s part to bs made or performed as provided in this ATTI14'MMEti T-no 6 08/01/88 0642n/2460/12 ���• t e, ,, u „ r:�.�; 1„ All. sums paid by Lessot and all necessary incidental r costs, t :>q,?thar with interes thereon at the rate of three (3 ) ,y. percentage points above the discount rate of the Federal ' Reserves Bank of San Francisco (not to exceed the maximum leg&l rate permitted by lav) , frnm trt- date of the payment by Lessor shall be payable by Lessee to Lessor on demand. The sums shall be deemed to be additional rent and subject to the same 11 conbtquences as herein provided for failure to pay rent. 18 . 3 Default � Lessor . Lessor shall not be deemed to be �A in default in the Performance of any obligation required to be pcerforred by it: hereunder unless and until it has tailed to perform such obligation within thirty (30) days m ter written notice by Lessee to Lessor specifying in reasonable detail the nature and extent ox any such fail%ire; provided, however, that if the nature of Lessor. ' c o2�1 igs►tion is suc'� that more than thirty (301 days are required for its performance, them Lessor shell riot be deemed to be in default if it: shall commence such performance within st,tch thirty (30) day period and thereafter dil.lgzntl.yr prosecutes the same: to completion. i J 28. 4 L*qal,Ex, Rennes and Collection Costs . If either party Incurs any expunge, including actual costs of C-ollection, reasonable attorney*' fees, expenses cf discovery, preparation for litigation, expert witness fees and litigation expenses and costs, its connection with any actinn or proceeding instituted �i. r i i by either party by vcasori nf any default cr alleged default of ! the rather party hereunder, the partly prevailing in such action or proceeding shell be entitled to recover its reasonable expenses from the other party. For purposes of thi.0 provision, in any unlawful detainer cr other, action or proceeding i instituted by Losssor based upon any defa-tlt or alleged defati It by Lesser hereunder, Lessor, shall be deemed the prevailing party if ( a ) judgment is entered in favor of Lessor or (b) prior to trial or judgment Lessee uhall pay the rent and charges claimed by Lessor, or eliminate the condition( s) , cease than act( s ) or otherwise cure the ornission( s) claimed by Yesso: to constitute a default by Lessee hereunder. I� TICLE XIX. HOLDING OVER , 19 . 1 Holdiag Over. This, Lease shall terminate and become mull and void without further notice upon the expiration of the Term herein specified, and any holding over by Lessee after• such expiration shall not constitute a renewal or , eixtension hereof or give Lessee any rights under this Lease, except when in writinq signed by both parties hereto or as othervi se herein d provided. If Lessee shall hold over for any period after the expiration of the Term, Lessor may, at ito option, treat Lessee on a tenant at Will core az-ins on the fl,!t-st (let) day following the expiration of this Lease and subject .o all of the terms ' and conditions herein contained, except that the annual rental X'r''l"ACMMff no. i 08 f 01/88 0842n/2480/12 -Si6- 1. shall be one hundred fifty percent ( 150%) of the annual rantal applicable at the date of expiration and the rent bhall be .i payable quarterly ix., advance even though the tenancy is at will . If Lessee fails to surrender the Premises upon the expiration of this Lesse , Lessee shall indemnify, :defend and hold Lessor harmless fror. all loss, cost, damage , claim or liability, including without limitation, any claims made by any succeeding tenaril- founded on or resulting from such failure to surrender . Acce,. ;ante by Lessor of rent aiter such expiration or earlier terminL41*ion shall not constitute a consents to a holdover hereunder or result in a renewal of this Lease. The foregoing prove lions of this Section are in addition to and do not affect Lessor ' s right of reentry cr any e)ther rights of Lessor hereunder or, as otherwise prcvided by law. ARTICLE XX. (RESERVED ) ARTICLE XXI . [RESERVED ] is ARTICLE XXII . ACCESS BY LANDLORD 22 . 1 Right of Entrv. Lesso,. and those Regents, contractors, servants and employees of Lessor who are identified in writing to Lessee shall have the right, after reasonable notice to i Lebssee, to enter the Promisee during normal business hours (a) to examine the premises or for the purpose of performing any obligation of Lessor or exercising any night or remedy reserved R►'!"rUMPMRS'1' no. i 06/02/88 0642n/2460/12 -97- l to Lesson- in this Leave; (b) to exhibit the Premises to prospective purchasers, mortgagees or lessees of Lessor ' s interest therein; (c) to makes such repairs an Lessor may be .� entitled to make after a default by Lessee under Article IX sbovo; and (d ) to take all. materials into and upon the Premisea that may be required in connection Vi•ch such repairs, provided that any such entry shall be performed in m manner which minimizes to the maxiinum feasible extent any disruption of Lessee ' s buainess operations . If Lessor exec.isec its rights of entry In compliance with this ,Article YY.II , such entry shall not Constitute a constructive or actual eviction of Lessee , in whole or in part, and the Lent shall. not abate whi.l c any such repairs nre being made . If, during the last month of the Term, Lea see shall have removed all or substantially all of Lessee ' s property ther-L-from , Lesson may inniediately enter and alter, ranovate and redecorate the Premises without elimination or abatement of rent and without other compensation and suc:n ' avtion shall have no effect upon this Leas: . Nothing herein contained, however, shall be deemed or construed to impose upon Lessor any obltration, respon3ibility or liability whatsoever for the carte, supra rvision or repair of the Premises . 08/01/88 ATTACUS" NO. 6 064 0n/k OO/22 -98- k:r wo& ti ARTICLE XXIII . FURNI-rME, FIXTURE AND EQUIPMENT FINANCINO 23 . 1 FF&E Fi.nancin It is contemplated that durinq the .:erm of this Lease, Lassee shall place or cause the pl& ement from time to time of furniture, fixtureo and equipment: (collectively "FF&E" ) on the Premises which shall be subject to lease and/or purchase financing encumbrances (collectively "EF&E Finikr-cinq" ) . Prior to Lessee having the: right to place any FF&E on the premises subject to FF&E Financing, Lessee i *hall be required to deliver to Le:3sor written ,:otic.e of any such proposed FF&E Financing at least 50 days prior to the creation of such FF&E Financing, together with documentation in reasonable detail so that Lessor may review and approve or disapprove , In Lessor ' s reasonable discretion, the FF&E Financing . Such information Thal]. include, but not be limited to, the following: ( i ) a complete description of: the FF&E; (iJ. ) the lease term, rent payments and security deposits required in connection with any leasing of FF&E; ( iii ) the purchase price, tar-me of payment and conditions of any purchase or loan in connection with purchasing of FF&E; and ( iv) copies of all relevant documents to be executed between Lessee and the Lender, seller :Pr lessor of the particular FF&E in question. for a period of thirty (30) days following receipt by Lessor of the notice from Lersee together with all of the information rewired above, Leaadx may approve or disapprove such FF&E 08/01/88 0642n/2460/12 M99- w.r. i 1 4 s . .fA YIII Financing by written notice to Lessee . Lessor ' s approval of any such ME Financing shall not be unreasonably withheld . :n the event Lessor reasonably objects to all. or a portion of such i, FF&E Financing, 'Lessor shall within said 30-day period give Lessee written notice of its objection, detailing the reasonz i therefor. In such event, Lessee shall be prohibited from PA entering into such E"M Financing but Lessee may submit to Leasor such response to Lessor' s objections and/or revisions to tthe terms and conditicn- of the FF&E Financing in order to satisfy Lessor ' s object:ions thereto. Any such newly submitted in£arm4tion shall again be subject to Lessor ' s 30-da) right to review and reasonably object thereto. Lessor ' s failure to kJ timely abject within said 30Mday period to any such prcp.omed FF&E Financing for which proper notice has been given by Lessee J.J to Lesser shell consticote approval of the particular FF&E Financing in question and ao further cpproval by Lessor for such FF&E Financing shall bet reTi:i. �d. Lessor' s rigzts hereunder shall not be construed as requiring Lessor to participate in any way in any such FF&E Financing nor shall approval by Lea`-or of any such FF&E Financing obligate Lessor M any manner. ARTICL: XXIV. TRMSFER OF LESSOR' S 1NEEREST 2401 Transfer of Lessor' s Interest. Subject to Lessee` z rlghta wader Article III above, in than event of any transfer or transferal of Lessor' s interest in the Premises, the transferor A"ACILU3 "1' NO. 0 0642n/9460/22 - ��� r Kr shall, upon written notice to Lessee , be automatically relieved of any and all obligations on the part of the transferor ( as Lessor) accreting from and aftor the date of such transfer, except that the City of Huntington Beach shall remain responsible for petformarce of its obligations undea Article } Vill above restricting the use of the City Beach Property. The transferee shall be deemed, without further act or a►greemort, to have assumed and agreed to carry out any and all of the � covenants and obligations of. Lessor and be entitled to any „d rights or benefits conferred upon Lessor under this Leaue . It 1. is specifically understood the 4 the Huntington Beach, Redevelopment Agency may cease to function prior to the Lh expiration of the Term and that in such event, the City of Huntington Beach, as the successor in interest to the ..s Redevelopment Ag:ncy, would automatically a sume all of the Redevelopmen� Agency' s obligations hereunder and be entitled to all of the Redevelopment agency' s rights and benefits hereunder. Notwithstanding the foregoing, no such transfer of Lessor' s interest wn tlwe premises shall rE-Iieve the City of Huntington Beach of its obligations under the Development Agreement or the Huntington Be Ach Redevelopment Agency of its obligations under the DDA . ATTACMUNT W. 6 08/01/44 :; 0642n/2460/22 -101- r, r, i h r !i ARTICLE XXV, FORCE MAJEURE 25 . 1 Eorce Majeure . In the event the performance by either party of any of its obligations hereunder is delayed by reason i of the act or neglect of the other party, act of Cod, stormy or inclement weather, strike, labor dispute, boycott, lockout or , + other bike defensive action by such party, inability to obtain labor or materials, governmental res6rirtinna, riot , in6urrection, war, catastrophe, casualty, act of the pLblic enemy, or- any other cause , whether similar or dissimilar, `,• beyond the reasonable control of the party from whom, ouch y performanct is due ( "unavoidaL-ile delays" ) , the period for the �j commencement or completion thereof shall, be extended for a p+ar+od equal to the period daring which performance is so delayed. . 1 �rTICLE XXVI . MISCELLAI4EOUS a + i 26 . 2 Waiver. The waiver by either Lessor or Leosee of any breach of any term, condition or covenant contained herein + shall not be deemed a waiver of such term, condition o:- covenant or any subsequent bread, of the same or any other terra, condition or covenant contained herein. qq ATTA r M NO. 6 -ia2- 1 hJ , 7i 1 •j rl1 r S • w 1 1 26. 2 Notice* . All notices, demands or other writings to be mode , given or sent hereunder, or which may he so given or made or sent by either Lessor or Lessee to the other shall be deemed Ll to have bean given when in writing and peraanally delivered or if mailed on the: third (ard) day after being depositec► in the United States mail, certified or registered, postage prepaid, and addressed to the respect-eve parties at their addresses st: Cal forth below: If to Lesser: The City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 14 Attention: City Administrator , • t With a copy to.- Gail C. Hutton City Attorney City of Huntington Beach 2000 Ma-.n Street Huntington Beach, CA 92648 If to Lessee: RLM Properties , Ltd. 560 Newport Center Drive , Suit: 1050 P . 0 . Box 8680 Newport Beach, CA 92658-8680 .Attention: Robert L. Mayer `d With a copy to : Jeffrey M. Qderman, Esq, Rutan & Tucker fill Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 26 . 3 Relarti.onsbi_of Parties Nothing contained herein, all be des"d or construed by the parties hereto, nor by any third party, an creating the re iations'Aip of principal and t spent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither this method /02 f W- r O rw/2460/12 -203- , 1 , ix f r� of computation of rent, nor any other provision contained herein, nor any acts of the parties herein, shall be deemed to create any relationship between the parties hereto other than the relationship of Lessor, and Lessee . 26. 4 Broker ' s Conuais, ssioon'. Lessor and Lessee each warrants to the other that it has had no dealings with any real estate* brokers or agent in, connection with the negoti ation of this Leant. Lessor and Lessee each agree tas " Indemnitor" ) to . i indemnify and defend the other party and hold the other party ies harmless from all li tbilities arising from any claim by any ! brrok.•r or Minder allegedly representing the Indemnitor, including, without limitation, the cost of attorneys' fees and costs in cor ecrtion therewith. Such agree-,ent shall survive the termination of this Lease. 26 . 5 Accord and Satisfaction. No payment by Lcssee or receipt by Lesser of a lesser amount than the rent or other ` + charges herein stipulated shall be deemed to be other than on account of the earliest due stipulated rent or other charges; nor shall any endorsement or statement on any check or any letter arcompanyi.nq any check or payment as rent or other now charges be deemed an accord and satiefacticn, and Lessor shall accept such check or payment without prejudice to Leaser ' s right to recover the W ance of su%h rent or other charges or «ri • pursue any other remody in this Lease provided. Q*Ult/2460/12 -104- Y ,'ail .• r 26.6 Time of . Essence . Time in hereby expressly declared to be of the essence of this Lease and of each and every term, covenant and condition hereof which relates to a date or period � of time 26. 7 Remedies Cumulative . The remedies herein given to Lessor and Lesiaee shall be cumulative and are given without impairing any other ri.ghta or remedies given Lesson- FAnd Lesser- by statute or law now existing or hereafter enacted, and the exercise of any one ( 1 ) remedy by Lessor or Lessee 5h.all not exclude the e,nvrci se of any other remedy. 26 . 6 Const:ructi-an. The lanTiage in all par►.s of this Lease shall in all respc::ts be construed as a whole, according to its fair Meaning, and not st::ictly for or against dither Lessor or Geaae.:. . Tha article headings it this Lease are for convenience only and are not to be construed rs a part of the Lease or in •ai any way limiting or amplifying the provisions hereo•c . � t ! 26. 9 Effect of .nvalidi.ty. If any term or provision of this Lease or the application thereof to any perNon or + circutsteances shall, to any extent, be invalid or R.� uneealorcesb1t, the remainder of this Luse, or: the application of its terms and provisions to percons and circumstances other th6A those to which it has been held invalid or un*n:orc+eable � ,.� steal:. not be affected theraby, and each tern and provisions of no. 4 I I i `N 1 i this Loaso shell be v&lid and enforceable to the fullest extent permitted by law. No acquisition by Lessor of All or any of ' the interest of Lessee in or to the Premises or. the Improvements , and no acquisition by Lessee of all or any inter,ast of Leaaor in or to the Premises shall constitute or work a merger of the respective interest, unless expressly r.� provided for . r ,1 26 . 10 Successors and Rssi. ns . This Lease arad the covenants and condit-ions contained herein shall be binding upon and inure .1 to the benefit of and shall apply to the successors and assigns 1 of Lessor and to the permitted successors and assigns of Lemse:e , and all references in this Lease to "Lessee" or ''r,assor" :hall he deemed to refer to and include all permitted successors and assigns of such party. 26 . 11 Consents . Except as expressly p..lovided is; thl.s Lease, where: the consent o approval of Lessor or Lessen is required in this Leasu, such consent or approval will not -be unreasonably withheld, conditioned, or delayed, nor will the panty giving such consent require: the payment of any consideration for the giving thereof, exc pt as expressly provided oeiexrwi se in this Lease . 26. 22 Entire Agreement. This Lease and the exhibits hereto contain the entire agreement of Lessor and Lessees with respect to the matters covered hereby, and no other agrevment , A'1 TACMU IT .00. i 0642n/2460/12 •1t16- l ry statement of t vomise made by either Lessor or Leases which is not contained herein, shall be valid or binding . No prior agreement, understanding or representation pertaini- g to any such matter shall be effective for any purpose . No provision of, this Lease many be amended or added to except by an agreement ' in writing signed by Lessor and Lessee . 26 . 13 Performance of Lessor ' $ nblie. ations . Whenever in this Lease it is provided that Lessor .is obl: gated to perform any act, Such act shall be deemed performed by Lessor if it_ causes the due performance thereof by any other party. 26 . 14 Quitclaim Deed. At the expiration or earlier termination of this r.ease, Lessee shall r_xecute, acknowledge and daliver. to Lessor, with.Ln five ( 5 ) days after written dernand from Les zor to Lessee , any quit.:lai.m deed or other document required by L,erso:: cr :ny reputable title company to remove the cloud of this Lease from the title to the real property which Is the subject of this Lease. I "16. 15 Number and Gender. Whenever the singular or plural is ' used in thin L,euse and when required by the context, the same shall include they plural, and the singular, respectivwLy, and the masculine gandsr shall. in=:lude the feminine and neuter genders, and the word "person" shall *ritluda corporation, firm, partnership or P.anoc:iation. A'f'1'W..gMM NO. i 06/01/es 0642n/3"0/12 -107 • 26 . 16 Interest on PAst--Duab 4bl It ciat:ions . Any &m;,unL due from Lessee; to Lessor horeunder which is not paid when d;1e inc ludinrl, wit:hou t l imitas:z ^n, aniounts duc as .•ej.mbur::e!nent "o Lossor for costs incurred by 'K es5or - n pe--Iorm.: !�q obligations off. Lessee hereunder upol'1 failure to sr.) perform) shall rear interest at the r&te of threo: ( 3 ) perccntage points above the dit;count rage of the Fc-"- : al PLeserve; of :'•'•3:1 T'ra-.-ciscr) (not, to exceed the m:.tximun 1t!q,-!?_ rate: Ly front the diite dll(- until T)d.d' un.lez:;s otherwise provid=lcj herein, but Uv! paj,incr'.t C: '; L11C? inte'.t'nt Thai l not excu°se or cure :1n C"le-lault by L,essec:• 1.1n.de t:` iS K'ear�c: . 26 . 17 Exccution Qf L.e;ise ; No On'ciori. Thc- �3ubini,ssion o this l..east., to 1,-s,gee sh 1. ). he for. (,!xaminat:inn nurpos�;- o;� a.1d ciorr' not: mnd no'i, cola st i-tute it L,.::- ontaon for to .i.e-ase , or otherwise creante „ny .interr:st r.e-;lee In the of this ,sy Less. - and return to Lessor pliall not ).ml. binding u!.Don r,c..ssor notwit:hatar.ding. aay time xnto:.:vdl, until Lessor has in fact exe•::uted and delivered this Leese to Le►scae . 76. 18 Co.-- oorate Authorit Each indi idiaaa). exncutfng this Leas* on bohalf of a corporation;, partnership or other 6nti.ty or organization, reprobetnts srid warrants that he in duly authorized to executs and deliver ::!tis Lease on behalf of said cl)rpor ati.on, partneranip, ent !-y oA- orgarizRtion and that thin y1TTACWNT M". i 043/Ul/s$ # 0642ZV2460/12 -1�18- r • c4 • Lease in biad3ng upon same. In accordance with its terraa . ;r caea' {eha1l, at Learor' s request, deliver a certified copy of a partnerohip resolution or certificate authorising or, .' evidencing such execution. 26. 19 [Reserved) 26.20 Cc trallinQLaw. This Loan* shall bo governed by and construed In accordance with the laws of the State of California. i 26.22 ecific Pe*�formarice. Nothinq contained in this; lease i *'hall bA construed as or shall have the effect of abridging the right of either Lessor or Lesnee to obtain specific performance of any and all of the covenants or obligations. of the otEer party under this Lease . 26 .22 Su_Yviv#� of Itdemzitias and Warranti es . The obligations of the indemnifying party under each and every indem iiication and hold harmless provision contained in this Lease shall survive the expixatiori a.. earlier terminat~ic;x of this Deana to and until the last to occur of ( a ) the last date pezaitted by law for the bringi.nq of any claim or action with respect to which indemnification may be claiYned by the NN inde=ified party against the indemnifying party under such provision or (b) the date on which any claim or action for 0642n/2460/12 .0 109+ f • itr 1 r, " 1 v'hich. 1pdemnif eatiGn ass be claimed under such rovision is Y P fUlly vW finally resolved, and, if applicable, any compromise thereof or judgment or award thoreon is paid in full by the Indomifying party and the indemnified party in reinsbua:sed by the indemnifying party for any amounts paid by the indemnified party in compromise thereof or upon judgment or award thereon and in defense of such action or claim, including reasonable attomays' fees incurfed. The representations, warranties, and covenants of the parties contained herwin shall. survive: the termination of this Lease without regard to any investigation made by the parties. 26 .23 Memorandum of Lease . should ewSthe3r Lessees or Lessee require, 1the parties shall execute a short form Memorandum of Lease for recording purposes setting forth the- Term Comme ncemsnt Late and the termination date i.i. a form reasonably acceptable to both parties . ARTICLE. XXV11 . ARBITRATION 27 . :1 Commencement. Disputed issues arising between Lessor and Ioesse a under this Lease shall be resolved by . arbitration purruant to this Article XXV11 if, and only if, ,i this Lsave specifically provides for resolution of such disputed issue by arbitration. Notwith$taricifZzc7 any other provision of this Lease to the Contrary, if the parties are aTTAC7��F!' Nt7. i ��/Cil/98 0642n/2460/12 -110- r ,f , y r�1 Involved in a dierputt subject to ree,solution by arbitration, a Patty who "LA good faith maintains such dispute shall not be N deem*d to be in default under this Lease until the final arbitration, decision ,{,s rendered, as provided in this Article XXV'IS and, in the event such party is the losing party, such art fails to curt an default within the times specifically patty Y sat forth herein br, if no such time is specified within a refasoAabU time. A part, dwsiring to initiate a permitted arW tration vnder this Least shall give notice to the other party specifying ( i ) the natter to be arbitrated, (ii ) the Section of this Lease permitting the arbitration, and (iii ) the Swipe and address of they person designated to act as arbitrator, which poison shall be qualified to act as arbitrator in accordance with the provisions of Section 27 . 3 . Within fifteen ( 15) days after receipt of such notice, the second party shall give notice to the firat 'party specifying the name and address of the person 'designated tto act as arbitrator on the second behalf who shall be qualified to act can arbitrator, in patty' s � accordance with the provisions of Section 27. 3 . -If the second party fails to give notice to the first party of the appointment of, the second party' s arbitrator within the required period, the appointment of the second arbitrator shall be made by application to the court in the game manner as j� provided in Section 27 .2 for the appointment of a third arbitrator in a c aso where the two arbitrators appointed by the parties, or the parties, are unable to agree on the appointment �i of they third arbitrator. A1"1'ACMU'1'f.• NO. i a11/ai/e8 r M • rr ij,�}ter ' � , •,,+ -AAAA10 s- I I ., 27.2 The +arbitrators chosen in accordance with the provisions of Section 27 . 1 shall promptly meat to attempt to resolve the disputed matter. If the two arbitrators are unable to agree upon .the question at issue within thirty ( 30 ) days after the second arbitrated is appointed, they shall then have fifteen ( 13) days jointly to appoint a third arbitrator who shall be qualified to act is arbitrator in accordar,ce with the provisions of Sec tAon 27. 3 . If the two arbitrators are unable to agree upon a third arbitrator within such fifteen ( 15 ) day period, Lessor and Lessee shall then have an ' additional fifteen ( 15 ) days to select together the 'third arbitrator. If Lessor rind Lessee are unable to agree upon the ill . third arbitrator within the required period, either Lessor or Lessee by giving prior notice to the other party, shall have thirty (30) days to request the Presiding Judge of the Superior Court for the County of 'Orange, State of California, to appoint as the third arbitrator an impartial person c�ualified to act as EYarbitrator in accordance with the provisions of Section 27 .3 , and the other party shall not rai.sa any question as to the judge' a full power; and jurisdiction to entertain the applicatlon and make the appointment. The three (3 ) arbitrators shall decide the dispute (if it has not previously boon resolved) by followinV the p*ace�ciure set forth in Section 27.6. aATTAC�X? '110. 6 , 08/01r48 0642 a/2460/12 -222- ' Ir 1kw/i:7 1 � 4j '+• dab _Alga 1. • w l�t V 1..1'1 A Ii 1. 1-•1 L N ''yl fir, i1! 1 • '" , ,i � , . eft r� ,°I'•d prr :� 1 : A r 1 t�aiticatios. The arbitrators shall be chosen from :,�. ; �,'ra tx�► of fsldterested experts geeali Pied by training and ,r sop brioncat to -resolve the particular i saute An di spute in an intorded efficient manner, 27 .4 DAMQnS , !tcision. in the event of the failure, refusal or inability of any. -arbitrator to act, he shall appoint his successor= • provided, however, that any. •successor to the : . thl" Miftitrator shall be appointed in the same manner as the ,thtird -arbitrator is to. be appointed. The arbitrators shall , if possible, tinder a written decision within fifteen ('15) days after -the nppointmt t of the third arbitrator. A decision in which .any two arbitrators concur xhall in all cases be binding and conclusive upon the parties . Eacli party shall pay the fee.*i and expenses of its arbitrator and both shall share the fees and-expenses of the third arbitrator, if any. Each party shall pay .the lees and expenses of its attorneys and any witnesses it may call . 27 .5 Expert Testimony. The arbitrators shall have the �j right to consult experts and competent authorities skilled in the matters under arbitration, but any such consultation shall it be made in the presence of both parties with full right to r crows-exsmine. The arbitrators shall give a counterpart copy of their written decision to each party. The arbitrators shall havre no power to modify the provisions of this Lease ( although 11'1"1'AN'1' a). i 09/01/96 0642n/2460/12 � �.�- . rl i y 7.•r ,�' t'r p '� Yh+p }i� ' •i 4 A' f,`Y�,Or!��=rr,�l!r r4�rN�It�•F'''�'kt' tia,l;t. ,y'�',;"' 4 ICY i or 1 t be prohibited from considering � p g writ �9reeeents an4 other evidence of the intent and P*Poa4s of this Lease) , and the jurisdiction of the arbitrators is limited according1 �►. f 27.6 D&c'.,jjon Procedure. Where an issue cannot be resolved by agreement between any two arbitrators, or by settlement between the parties during the course of arbitration, the issue , . shall be resolved by the three arbitrators in accordance with the following procedure. The arbitrator selected by each of the parties *ball prepare a written proposed resolution of the dispute and tbi roasons therefor and give counterpart copies to each party and each of the other arbitrators, with the third arbitrator arranging for a simultaneous exchange of these proposed resolutions. The third arbitrator shall select which of the two proposed resolutions snort closely approximates his determination of the issue. The third arbitrator shall rave no e� riYght .to ,propose a middle ground or any modification of either 1 of the two proposed resolutions, The resolution which the ._1 third arbitrator select* shall constitute the decision of the I arbitrators and shall be final and binding upon the parties . t i 27. 7 Enforcement. The judgment or the award rendered in i any arbitration initiated and conducted in accordance: with this � J Article XXVII may be entered as a judgment in any court of competent jurisdiction and shall be final and binding upon the kTTACIM Noe i 08/01/88 0642n/2460/12 -114- + 1 i ip � ry Kra' pµlia;.l' uF 11' ,My, 1 i Y •,,'J rl I t. w� 'YRn parties. The arbitratiou shall be conducted and determined at any location in the City or in Orange county, upon which the pa rt$** agree, in accordance ' with the then prevailing come ralal arbitration rules of the American Arbitration Asseciation or its successor except to the extent such rules are modified as set forth its this Article XXVII . ARTICLE XXVII7 . REPRESEN- TATIONS BY LESSEE � �A M 28. 1 Retiresentations bX Lessee . The financial statements and tax returns and other information submitted and •certified to . by 4essasee as a true, accuratt and up-to-date representation to its fihanci l condition including, without limitation, all of its assets, liabilities, income and sources of income, have been prepared, certified and submitted to Lesebt an an inducement and consideration to Lessor to enter into this Lease agreement with Lessee . Said statements are represented and warranted by Lessee to be true, accurate and correct and tb accurately and fully reflect Lessee ' s true financial condition y1 an of the date of execution of this Lease by Lensoe. r � I' NA r a' +w1 ►d r • r �i ATTACMERN`sl' NO. i 00/O1/88- ay 0442n/2460/22 -215- Y • N„ }yam Y 1 '!^y,D1,4ti' .M `4Y qi 11•,n.ii 1 y '�'t^�'{'.'r'i " ' .. s r. t • 114 WITNESS W1MR$0r, the parties hereto have eatecuted this Leasw as of the day and year first above written. "LESSEE' e, City or RMINGTON BEACH THE ROBERT L . MA'YER TRUST OF 1982 By.- Robert L. Mayer, Trustee ' Attelt'ti. w Allcity clerk ' l ►rc V" Ae .o Form: spe-cia' 1713Gool r 1 • . 1 1 J 11'1"1'AcZam Ito. i 06/02/88 0642n/2460/12 -116- 1 dw ....,., 1 -0� eat it DESCRIPTION OF PRL14r$E3 The land referred to in this lease is situated in the State of California, County of Ora hqe, City of Huntington Beach, ' and Is dosvribed as follOWN: THAT PORTION OF SECTION 14 , TOWNSHIP 6 SOi'TH, RANGE 11 WEST, IN THE RANCHO IBIS BOLSA9, AS PER MAP, RECORDLD IN BOOK 51, PAGE 14 OF m3coczLLAmous MAPS xN THE OFFICE OF THE COUNTY RECORDER OF SAID i xi COUNTY, DESCRIBED AS FOLLOWS: REdIl#NING AT,; TXE SOUTHEAST CORNER OF THE NORTHEAST QUARTER OF THE r � NORTHEAST QUARTER OF SAID SECTION; THENCE WESTERLY 111 . 91 FEET ALONG THE NORTH LIFE OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF SAID SECTION TO A POINT ON THE WESTERLY LINE OF THE LAND DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA IN BOOK 6168 , PAGE 667 OF OFFICIAL RSCORDS, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE SOUTH 3 �.� DEGREES 29 ' 4301 WEST 593 . 12 FEET; THENCE SOUTH 25 DEG. 32 ' 14" WEST 386. 94 FEET; THENCE SOUTH 11 DEG. 441 36" EAST 771.48 FEET; THENCE SOUTH 78 DEG. 15' 24" WEST 82 .75 FEET TO THE • NORTHWESTERLY RIGHT OF { WAY LINE OF PACIFIC COAST HIGHWAY, AS DESCRIBED IN HOOK 455, PAGE 400 .A OF OFFICIAL RUCORDS OF SAID ORANGE COUNTY; THENCR ALONG SAID NORTH- EASTERLY RIGHT OF WAY LINE, NORTH 52 DEG. 05 ' 09" WEST 2409 . 77 FELT . TO THE SOUTHEASTERLY RIGHT OF WAY LINE OF HMINGTON AVENUE, 60 . 00 FEET IN WIDTH AS NOW LAID OUT; THENCE ALONG SAID SOUTHEASTERLY RIGHT OF WAY LINE, NORTH 37 DEG. 54 ' 51" EAST 299. 35 FEET TO AN ANGIZ POINTt THENCZ NORTH 0 DEG. 17 ' 36" EAST 20 . 44 FEET ALONG THE EAST .,( RIGHT OF NAY LINE OF HUNTINGTON AVENUE, 60. 00 FELT IN WIDTH AS NOW LIPID OUT, TO THE NORTH LINE OF THE SOUTH HALF OF THE NCRTHEAST QUARTER OF SAID SECTION; THENCE EASTERLY 1844 . 00 FEET .?LONG SAID NORTH LINE TO THE TRUE POINT OF BEGINNING. EXCEPT THAT PORTION THEREOF DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE NORTH LINE OF SAID LAND, NORTH 89 DEG. 43 ' EAST 690. 00 �. FEET FROM THE CENTER LME OF SAID H179TrNGTON AVENUE; THENCE NORTH 89 DEC. 430 EAST 200.00 FEET; THENCE SOUTH 0 LEG. 171 EAST 150.00 FEET'• THENCE SOUTH 39 DEG. 43 ' WEST 200.00 FEET; THENCE NORTH O DEG. 17 ' I WEST 150. 00 FEET TO THE POINT OF BEGINNING. PARCFL 2 t i -1 THA'P PORTION OF SECTION 141 TOWNSHIP 6 SOUTH p RANGE 11 WEST, IN THE RANCHO LAS BOr.FAS, DESCRIBED AS FOLLOWS: r BEGINNING AT THE EASTERLY TERMINUS OF THAT CERTAIN COURSE SHOWN AS HAVING A DISTANCE OF 92. 99 FEET ON THE STATE HIGHWAY MAP (ABANDOMINT) FILED JUNE 251 1966 IN SPATE HIGHWAY MAP BOOK 4 , PACES 39 AND 30, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COMMY THENCE NORTH 39 DEC. 150 30" WEST 72 .30 FEET ALONG SAID XIAI8IT +trig to AttachRent Ito+ i Page I of 3 ',, �Il 1 COME' TO THE BEGINNING OF A CURVE CONCAVE EASTERLY, 'HAVING A RADIUS OF, 27.00 *XET f THENCE NORTHWESTERLY AND NORTNUSTERLY 45.79 FEET AUOIIG' SAID MM 'THROUGH A CENTRAL ANGLE OF 97 DEG. 101 31" TO A LINE PM1LLEL WITH AND SOUTHEASTERLY 47.00 'FEET MOM THE CENTLR LINE OF MMIMMON AVVMRi THENCE WORTH 37 DEG. 54 ' 51" EAST 150.01 FEET AWN12 SAID PARALLEL LINE; THENCE SOUTH 53 DEG. OS ' 09" EAST 133 .00 FNNT i TKSNC'R .SOUTH 37 020. .541 51" WEST 139 .28 FEET j THENCE SOUTH 2 DEG 461 134 IP.AST 30.541 TO A 'POINT ON A NON-TANGENT CURVE CONCAVE w, SOVTHNESTERLY, LAVING RADIUS OF 1350.00 FEET; THENCE NORMPSTERLY g 1.09 FEET ALQHG SAID ClgM, THROUGH A CENTRAL ANGLE* OF 2. DEG. 209 30" TO THE PorNT OF Bsr NNlNG. ! EXCEPT THAT POlMON THEREOF Y'NCLUDED WITHIN PARCEL 1. Yr1.■ 1. 1 N w � 1 V M� i 1 t EMBIT "A" to Attachment No. 4 Page 3 Of 3 wi � '�I�.,ti N • f•ro^ r $off FF, 24 -25 I AE -02 I''jr 400 ' 114 - 15 VIM AC. s J ,off . R.S. /t-47S , I 29 ..y l i t • 27 NOTE ASSESSOR'S ®LOCK a ASSESSORIS MAP r PARM NUMBERS BOOK P. PAGE RS SHOWN /V CIRCLES couNry or ORANGE IBE"t' new to Attachment No. i PaVS ! of i wi y; 'I RNWa=ONS To BE KADE To LEXES AT TIME OF DISPOSITION TRRNSFERS At the time of each "Disposition Transfer'# of a w ` "Separate Development Parcel" within the "Site" pursuant to Section 301 of the Disposition and Development Agreement entered into between the Redevelopment Agency of the City of Huntington Beach (11Rgency") and Lessee on or about August 15, 1588, as the same may be amended from time to time (hereinafter the "DDA") , this Lease shall be modified as set forth in this Exhibit "B" . The modifications listed below under the heading "original Lease" shall apply to the revised Leese document covering the balance of than "Developer Parcel" that has not been the subject of a Disposition Transfer. The modifications listed below under the heading "New Lease" shall apply to the now Lease to be executed by Lessor and Losses covering each Separate Development Parcel within the $$Commercial Portien!" of the Site which Is the subject of a Disposition Transfer. Lessor and Dassee agree to cooperate and execute modified and new leases in accordance with Section 2. 11 of this Lease and this Exhibit "B, " and to executs all documents required to remove any prior and conflicting leases of record. The amendments to the provi- sions of, the Original Lease and New Lease(s) are not forth below. The provisions not specitijally discussed below shall be retained in the original Lease and Incorporated varbatim into the Now Lease (s) . 1. Title Page, Introductory Paragraph, and Signature Block. A. Original. Unchanged. B. New Lease:. Name of Messer to be changed from "City of Hunt ngton Beach" to Redevelopment Agency of the City of Huntington Beach, " and signature lines for Mayor and City Clerk to be changed to "Chairman" and "Secretary, " respectively. Date on title page and "Effective Date" in introductory paragraph to be the date of the Disposition Transfer for the Separate Development Parcel in question, from Section 1. 11 of this Lease . 2 . Section_ 1 . 1. A. Ori ina;l Lease . Description of "Premises" in Exhibit "A" to be modified to delete that portion of the Developer Parcel that has been the subject of a disposition Transfer to developer . EYSIBIT USIP to Attacbrent No. i Pali 1 of 24 08/15/8 8 FINAL • t J I fly `f •:' '.J ,Ii /; , ' Tit r+W •d i a oil I I Fi �. N w ame. Description of the Promisee in xLbLt "A" to include �CZa separate Development Y Parcel in question. 3 . Sacti§n o1 . 3 . L.., I A. Original Lease. Unchanged. B. New Xaase . Revise Section 2.3 to read as follows : 1 . 3 FxC® tions to Leasehold Estate . This Least is made subject to: (a) General and special taxes and assessments, for the current fiscal tax - year and all unpaid bonds and/or assessments; provided, however, that the foregoing shall not be deemed to be a oonsent by Lessee to any bonds or assessments and, provided further, that to the extent that any. portion of the "Beach , Soulavard Remnant Parcel" as defined in the CODA, in included within the Promises under this Lease, such portion of the Premises shall not be subject to any tax or bond lien or assessuent i and b All of the "A roved i ( ) pp Title Exceptions" applicable to the Pramisas which *, are identified in Section 201. 1 of the DDT►. 4 . Section 1 . 4 . A. Original Lase. Tin" changed. B. Now Lease. Term Commencement Date 'to be the data of US Disposition Transfer for the Separate Development Parcel in question. Termination Date to be December 31, 2086 . Delete the words "or extended" in the first sentence. r S. Section 1. S. A. G it inal Lease. Unchanged. B. New Lease. Delete. 2ZHtti1T plan to Attachmen NCO* 6 Page 2 of 24 08/15/88 FINAL 1 e S7Q' Yli. • SeCtiOn 1. i• A or 4 final Lease. Unchanged. 1 a. Now ass. put a comma after the words "conditior, of the promises and" and add the fallowing clause* "evicept.• as provided in Section 312 of the DDT► and th4 � Scope of Developrcent (Attachment. No. 3; thereto, " . / r ' section 1. 20. h. original Leane' L unchanged. N. New • Lease. In each Nsw Lease for a Separate eve apment parcel on ...,which a hotel is to be constructed and operated, change the phrase "in good order" in the first sentence of Section 1. 10 to read as follows: "In first-class condition and good order- " In addition,' add the following paragraph at the end of Section 1 . 10: Notwithstanding tho , ' foragoiing, upon Lessor's writt.nn election, delivered to Lessee no later than• one° (1) year :, prior .to the expirat! on o* the., ''Term, Lesse.3 shall demolish the improvements, removti- alb. debris, and leave .tha Promises in a clean' , level condition. In the M Ovimt Losses is so !'obligated to demolish the Improvements and wear, them from the Premises, Lenses shall havii a reasonable period after the. 4xpisation of the Term,; not, to exceed ninety (90) days, to cc►aplets such work, . and durinq - such • period., the public liability insurance and indemnity provisions of. Article N of this Lease (but no other provisions-, including without limitation Article 11) shall remain in full force and effact. 8 . Section 1. 11. ! A. +Oei inal Lease. Unchanged. H. Newer. Delete. 9 . Section 2 . 1. i A. orf inal Lease!. The $200, Ono rental figures in +� Sect on 2 . 1(a) and the $500, 000 rental figure in NXNI8IT Itgff to Atteohment No. 4 Palo S of 24 08/15/84 I •' Y r "'fl /ill. ,r ,i. IXY' r �F. '•wS' ' 1 yy / t SeCt,ioa-% 2 . 1 b shall be adjusted by multiplying each said figure by a fraction in which the nunerator equals the total square footage of the surface of the land in the "Commercial Pc,z-tion" of the site (arc that terra is defined in the ` DAA, and not .of land dedicated or reserved fox: , public xightsl`ISO ;-way and excluding the Separate Development Parcel being eonveyL.3 at such time) %~ that has not been conveyed to the Developer pursuant to a� Dispoiaiti:on * Trransfer and in which the denominator,, equals ' the " tota? ti uare footage of the surtsc +a of the lend in the Commercial Portion of 'tree Sits (not Of land dedicated or reserved for public rights-of-way) . The numbers to be used in the -forAula set forth above shall be determined by a survey conducted by a licensed land surveyor retaitiod subject to Lessor''s prior written approval, , which approval shall , not be unreasonably withh6l'-.A. Lessee shall exercise reasonable diligence to cause the survey to be completed nd later than thirty (30) days prior to the Term Comtoencsment. Date. Lessor and Lessee shall each pay fiZty percent (504) of the cost of the survey. S. Ifew Xo"se The 1100000 rental figure in Section x . 1 (a) andthe :)500, Odo rental figure' in Section 2 . 1 (0) shall 'be adjusted by ' multiplying each, said figure -by a fraction in which the numerator equals the " total mquare footage of the surface of ,the land in the Promisees (net of land dedicated or reserved for public rights-cf-way) and in which the denominator equals the total square footage of the 1 surface of the land i1i the Commercial Portion of 1 the ' Site- , (ne,!: of land dedicated or 7 reserved for public rights-of-way) . - Ir•, additior• , in the second to last sentenceof Section 2 . 1 (a) , the following worditi shall be insertac after the words "deduction or` d.ef set"t " (except as }'armitted pursuant to Attachment Rio. 3 of tshe DDA) " . In addition, in Sectlton 4. 1(b) , the word "earlier" shall be replaced with the word 11earlioat" , subparagraph (f t) shall be' dwleted, and the following I{ subpara►liaphs ahall be added. (ii) The date on which the, City of Huntington 'Beach issues its Certificate of Occupancy for the business(es) to be conducted on the Promises, or (iii) The date which is three ( ) years after the Rent Commencement Data. NZNXDIT rose to AttaobmeAt no @ a Page a c f 24 ,� 08/19/88 ?INAL I V 1 J n.+{i��11C'�I.r�l�•lyl1 ' a. Ili .'I a'r 10. Section 2 .2 a . A. Original base. Unchanged. b. Now base Revise the first sentence to read as a . OWS: The annual Rent required pursuant to Section 2. 1 above and 2.2(b) below shall be adjusted upward each January let through the germ cf ' this Lease (the "Adjustment Dates") as provided herein. 11. Section 2 . 2 (b) . A. Original Lease. Not applicable. h. Now Lease . Add a new sublaaragraph (b) to read as Follows : (b) Market Value Rant. Ad ustmerrts. The Annual Rent payable pursuant to. sect one 2 . 1 and 2 .2 shall be adjusted on the Zanuary 1Bt � . followinq the end of the 24th, 44th, 64th, i, isms, if applicable, the 84th full Lease Yortr during the Tom (the "Revaluation Dates") to an amount equal to the then-current' ' "Fair Rental Value" of the Promises, as determined in accordance with this Section 2 . 2 (b) . The, "Fair Rental Value of' the Premises as of any Revaluation Date shall be equal to the product derived by multiplying the "Market . , Value' of the Feel' of the Premises as of the applicable Revaluation Date times the "Market Rental Value" of the Premises as of such date . As used herein, the "Market Value of the Pee" of the promises on any Revaluation Date shall be the them-current Market Value of the Fse Intorert in the land constituting the #remises (end not the rented value therefor) order the actual facts and crircom- stances existing an of thb Revaluation bate. On the Revaluation Date occurring at the end of the 24th and 44th, and, if applicable, the 84th ' full Lease Years, the "Market Value of the Fee" of the Promises shall be determined in accordance with: the then-current and actual use being made of the Promises as permitted or required by this Lease and without assuming ' 23MI81T "Hn to Attachment Not 8 page S of 24 08/3A/88 FINAL 1 �, :E'r�.it rib1k «S',•iM ;lk',, r.,L r i any change of use for which any private or governmental permission would be required or any change in use whether or not permitted by the terms of this Lease and without regard to any residual value for any future uses ; the existing actual Improvements on the promisee (riot not the value thereof), except that the Improvements. shall be assumed to be in thephysical condition and operated in the manner required in Section 9 .1 (a) below; all encumbrances affecting the Promises, including but, not limited to, the DDA and all then- oxisting ta►xos, • assessments, covenants, conditions, restrictions, rights-of-way, lions, and easements; and the encumbrance of the promises by this Lease and all covenantal;' conditions, limitations, and restrictions contained herein. The "Market Value of the Fee" of the' Premises as of the Revaluation Date occurring at the . end of the 6eth 1lull .w Lease Year shbill ; be determined its accordance with the ,then-existing highest and best use of the Premises; consistent with principles t of ! ; eminent domair:, and otherwise in accordance W. with the preceding sentence; provided, however, that if Lessen has expanded in excest. of fifty percent (So%) of the then-durrent:. W. full replacement value of the Improvements 'oft the Promises (exclusive of furnishings, fixture, and equipment), at any time between the 'rend of the 30t;.h full Lease Year and said j Revaluation Date, thre "Market Value of the Feel" of the Premises shall be determined in i ;accordance with the preceding sentence and n:ot with reference to the highest and beat use of the Promises. 4 As used' herein, the "Market Rental Value" of the Promises as of any Revaluation Date shall be eequal. to the -then-current average annual percentage return - obtained by - owners of i land for land similar to the Pramisea, whicb shall in no event be lase than six percent (6%) nor more than fifteen percent (15W) The determination of tha "market Rental Value" of the Promises shall also take into consideration all of the factors required to be taken into consideration in determining the +� "Market Value of the Fee" of the Premises as of the applicable Rovaluartion Date, in 71 accordance with the preceding paragraph. i 13MIDIT $FBI, to Attachment No. i Page i of 24 00/15/0f FINAL , TI= t. +7 dFMO 44 "r,.+ �;�•. • . • Notwithstanding any other provision in this Section 2 . 2 (b) to the contrary, the Annual Rent derived under this Section 2 . 2 (b) shall not result in a rent less than the rent payable immediately prior to the applicable Revaluation taste (except that if the rent has been only • temporarily , abaeted,, � deferred, or reduced, in whole or in part, as a result of damage; destruction; or condemnation,, such adjustment to the Annual Rent shall not result in a .,rent less than: the rant payrbla immediately prior to the temporary abatement, deferral, or . reductioni this exception shall not, however, etttse any asssation of an abatement, deferral , or reduction then in effect) . The adjusted rent determined as provided in this Section 2 . 2 (b) shall be paid as provided in !Section 2 . 1 (a) above. No later than six 6 months prior to each Revaluation Date 'during the Term of this - Loarse, Lesson and Lessee shall meet and endeavor to agree upon the "Fair Rental Value" • of the Promises-, in accordance with the provisions set forth herein. If for any reason . Lesser and Lessee are unable to a roe upon the "Fair Rental Value" of the Preaayses on or before ninety (90) days prior to a Revaluation, Date, then such Fair Rental Value shall be determined by arbitration conducted within- the times, and in the manner, met forth below: _ (i) on or before seventy- eve (7 S) days prior to the applicablea Revaluation Data, Lessor and Lessee shall jointly attempt to agree do the appointment of a areal .estate apprainer who in at ' member of the American Institute of - Deal Estate Appraisers or any successor thereto or the Society of Real Estate Appraiser's, or any successor thereto (or in the event the American Institute or society. of Real Estate 'Appraisers or any successor shall not then be in existences, a< disinterested real estate aippraiiser having appropriate �+ qualllicationt to appraise commerci��.l real estate not forth immediately below) , with at least tan (10) years professional experience in Southern California in 2=1212 nae to Attachment Ito. i -•� Page 7 of 24 06/15/68 FINAL a Y 1 J APE, ° 11;,h1l.tiS'.,�. 4^� Tr ' fyrj •r' . - r . apprais+rng land and improvements similar to the Premises. All appraisers selected pursuant to the provisions hereof shall be impartial and unrelatedo directly or indirectly, so far as employment of services is concerned, to any of the parties heretd', or their successors. The east of the services performed by such appraiser shall be borne equally by the parties. The single appraiser jointly appointed by the parties shall determine the Market Value of the Fee of the. �# Premises , the Market Rental Value of the Pre,-U ses, and the Fair, Rental Value of the Prer i.ses in the manner heroin specified and shall render his or her appraisal within sixty (60) clays after said appraiser has been selected. (ii) Failing the joint action of Lessor and Lessee within severity-five (75) days prior to the apglicrible r� Revaluation Date, Lessor and Lessee shall each, within an additional fifteen (15) '! days, separately at its own cost designate an appraiser meeting that quslifir:ations stated in subparagraph (i) �. above. If two appraisers are appointed and they concur on the Market value of the Fee of the Premises and the Market Rental Value of the Premises in the manner hereinabove specified, the Fair Rental Value determined by them shall be the Fair Mental 'value of the Premises for purposes of determining the adjustment in rent pursuant to the formula set forth above. If the appraisers do not concur, end the difference between the respective higher and lower determinations of Fair Rental Value is an amount lose than ten percent (10%) of the amount of the higher determination of the Fair Rental Value, the mean average of the -two determinations shall be the Fair Rental Value of the Premises for purposes of determining the adjustnont in rent pursuant to the formula set forth above. The two appraisers shall render their respective appraisals within sixty (60) days after they have been selected . If the difference between the two determinations exceeds the amount 33MIRIT #left to Rttaehrent No. 6 Pago a of 24 08/15/88 FINAL 9L 1 ti specified above, the two appraisers shall jointly select a third appraiser meeting the qualifications sat forth in uubparagraph (i) above, and it they are unable to agree on a third appraiser, either of the parties to this Lease, by giving fifteen (15) , days notice to the i other party, may apply to the presiding judge of the Superior Court of Orange County to select a third appraiser who moats the qualifications not forth in subparagraph (i) above.' The third appraiser, however selected, shall be a i parson who has not acted -In any capacity +� for either -party. Within fifteen (15) days from the date of- the selection of the third appre,'iaer, all three appraisers shall meet and the first two appraisers shall present to the third appraiser all of their findings, dikta, and conclusions as to the Market Value of the Fee of the Premises and the Market. Rental Value of the Premises. The third appraiser shall review all such findings, data, and ' conclusions, and shall do'tirminee which of the tiro appraiseerst respective determinations of the Market value of , the Fus of the Premises a, the Market Rental Value of the Premises are the most reasonable determinations under the criteria set forth above and, elsewhere in this Lease. The third appraiser shall not be permitted to rake any other independent ,, determination of the Market Value of tho :Fee of the Premises or the Market Rental Value of ,this Promises . The appraiser's determinations found by the third; appralseer to be the most reasonable deterrkinations shall bee the Market value of the Fee of the Preemisee►& and the Market Rental Value of the Promises for purposes of determining the adjtistmeent 'in rent pursuant to, the formula set forth above. The third appraiser's conclusion shall be reached within thirty (30) days from the selection oll the third appraiser. The expenses related to the selection and '. services of tho third appraiser shall be shared equally by Lessor and Losses. (iii) The Fair Mental Value established under this Section 2 . 2 (b) 1 XXXXRtT pis to Attachment No. 4 Page 8 of 24 08/15/86 FXNAL y, „ «! '��`3�) 1�i�Jrr y+,r ,� i • U T � 1 shall be binding and conclusive on the parties for purposes of determining the adjustment in rent pursuant to the formula set forth above. if for any reason a Fair Rental Value is not established under this Section 2 .2 (b) , no party may avail itself of a Fair Rental ` Va►lue . mare favorable to such party than the value determined by the appraiser appointed by such party. (iv) Each appraiser shall certify that he or she has personally inspected rt this premises and Improvements and all properties used as comparisons, that he or she has no past, present or contemplated future interest in the { Promises, the Improvements or the "Sits+" jai defined in this daA) , or any part thereof, that the compensation to be received by him or her from any source for making the appraisal is solely in accordance with this Laase, that he or she has followed the instructions ar rat forth in ,.his Section 2 . 2 (b) for ve,'iu l ng the 'Promises and Improvements as of the ,..i applicable Revaluation pate, that neither his or her eaployment to make the appraisal nor his or her compensation therefor is contingent upon reporting a R predetermined value or values, or a -value or ,values within a predetermined range of values, that he or. she has had at ,,least ton (10) years. professional experience .in Southern California In appraising land and improvoze~nts' similar to the Promises, that he or she is a member of the American,, Institute of deal Estate +� Appraisers or .the Saaiery of Real Entat:e Appraisers or .respective suncessors thereto and that his or her appraisal was prepared in conformity with the ste.ndaerds of, professional) practice of the Institute or Society or successor thereto, 1 i RJUSIT "Sol to Attubsent No. i wage 10 of 24 I i k. yNn. 4 OW an V S t �rF/,� 1y t , L,�K f n• �^ TkTI{I��( ' '�,;S ' N. —i:. . f' or i i 12. 8gg Loll .3. 'A. grIgAnil Laige. Unchanged. !� NS , suss. Replace the period at the and of the , , t sentence w:,rh a comma followed by the following words: " (except as perm: itted pursuant to '' : 1 Attachment No. iS of the DDA) . " �3 . asctiori a 4 . A. ariyinal Lease. unchanged. 11• H. Now LeaMty In thy: first sentence, replace the phrase of Huntingtoh Beach" with "Huntington Beach Redevelopment A gancy. " T , 14« 8r�R tion 2 616. A: or ginal Lease. Unchanged. N. N!!W Leaas. Kidd the following at the end of the first paragraph in Section 2 .3: xn. 'siddition, ' Lessor shall have 'the right, for a 'Period not to exceed fire (3) ' Lease Years prior to each of the Revaluation Dates 00oc i f ied in -Section 2.2 (b) above, upon 'to Lessor}ic�rA , and apt Lessor's rtas�ariabl�`•� tra wxpefisa, to reviow and examine at-, the .Premises "y -the information , contained in-- LenaeaO ' ,boob's, records r and federaland', state' irncom' s tax returns relating to, inooko, revenues, and expenses of the • : Project (O't not any .' Lntormation. unrelated 'to the project) for ,the stile and limited purpose of determining the a4tters referenced 'in Section 262 (b) . In Oadditio'n, and subject 'to the some limitations, Leeson shall have the right during such limited period to have such portion of Lessse•s; '-books, records, and tax returns auditod''by m disinterested, reputable firm of aartif l f:d public accountants selected by Leeson at Lessor l s •oxpenoe. WMINIT Nan to Attachment No. i Page 11 of 24 J' Y ,yyr yo Y •� �"ram' �Y ':,, r )i�{ )r^. YV�r)y ,A; ,y.1141 I'PX' "1�3«'�' ' ';', ' •./ j •., • k .11 1 r , 1 . act n 2 .74 A. Original LAase . Unchanged . a, tew„ se. Delete. Al original I.4as�e. Unchanged. S. NOW Lease. Revise the third iaentence in paragrnp#1 o • sedtion 3 . 1 to read in its entirety as j follo+wsGo if such sale is not consummated within said ore (1) year period, Lessor shall again be obligated to first offer to sell the differed �". Interest to Lessee as not forth in this Section 3. 1. 117 'Article 1. (, A Original, Lease. unchanged. e. New lase. Add a now Article vI , entitled Co ST CTroN of IMPROVEMENTS ; EFFECT AND DURATION of co Ans IN DDA" to read as follows : Lessor and Lessee shall,, each construct or cause to be constructed thove improunments on and ' adjacent to the Premises-'. which, are rocliUred,, to bm. .coir truczted by each of therm in accordance. wit?a, rithin the timers.. and sub j ect to the teas and conditions, set forth in the DOA. (includinigi ` without .limitation, Article IV thereof (commencing . with Section 400) , the "3c6pe of Devdlopment" (httachment No. 3) , and the Of,ahodule of performance" (Attachment No. Bubssiequeni to L*ssea Is completion of all Ispiovsments which are its responsibility and Masor's issuance of its certificate of Completion with respect to tho Developer Inproveaents on the Promises, in accordance with Section 415 of the DDA, Lessee shall have ..� no further obligations under the aforesaid provisions of the DDA. xnan na" to Attashaent MQ* i Biagi 12 of 8* f . 08/15/88 1rINAL �n9 stir Section 7 . 1. A. Original Lease, Unchanged. h. Now Masi. In each New Lease for a ' Separate ' Development Parcel , an which a hotel is to be constructed and operated, add the following as a now first paragraph in Section 7 . 2 : During the term of this Lease, Lessee shag not gage or suffer to be used the Promises otter than as a hotel without Lessor's prior written consent. uses normally ' :. incidental to a hotel use, including without P limitation a restaurant,' cocktail lounge, cleaning and laundry service, banquet and " catering facilities, meeting rooms:, gift shop, magazine stand, barber or beauty shop, travel agency, airline ticket office, automobile rental operation, and recreational facilities, shall also be permitted. In addition, in each Now Lease for a Separate Development, Parcel on which retail commercial and office uses are to be developed, add the following as a new first paragraph in section 7 . 1: During the term of. this Lease, Lassies shall not , . use or suffer to be used the Promises other than for commercial retail, and office uses in accordance with the applicable stoning regulations of the City of Huntington Beach in effect as of the Effective date of " the DDA, or, such additional uses as may be pernitted., from time to time by, changes in such zoning regulations. Any other use of the .� Promises shall require Lessor' s prior written consent. in addition, in the Now Lease for the Separate Development Parcel on which the recreation/tennis/ health and fitness facility is to be operated, add the following as a new first paragraph in section During the term of this Lease, Lessee shall not use or suffer to be used the Promises pother than for commarcial -• recreational Ungar . including without limitation a tennis club or facilities, health and fitness facilities , a swimming pool or pools, exercise/weight training room*, sauna, RMNIT Mee to Attac"Gat no. i Page ti of 21 Of/lc%fib FINAL r{, 1 w � •r• ^F" it ..F'r y nv �: ION i (l ' r S spa, and similar facilities . The Promisee shall not be used for ether used without Lessor*s prior written consent . In addition to the foregoing, in the event that any of the separate Development Parcels include a combination of the uses identified above, the now ...� first 'paragraph graph in section 7 . 1 shall be revisad appropriately tb reference all of the permitted •r� uses. to addition, add the following an a new second N paragraph in Se;t ion 7. 11 Lessee agrees duringthe entire Term to operate the Improvements and to conduct its business at all times in a first class and reputable manner and to cause all subtenants, operators, concessionaires, and other occupants of the Improvomonts and promises to do.' likewise. Failure by -Lessee , or ank' such other person, so ' to operate. shall entitle 'Lessor, in addition to other remedies provided in this Lease, to seek any mandatory injunctive relief to which Lessor may be entitled. jIn addition, in each Now Lease for a Separate Development Parcel on which a Motel is to be constructed and operated, add the following language to the end of the second paragraph in -•� , suction 7 . 1: Not by way of limitation of the foregoing, the .µS hotel to be operated by Losses on the premises shrill be operated as a "First-class Hotel . " As used harein, the term "First-Class 'Hotel" shall mean that, subject: to any limitations imposed by the physical structure and configuration of the tmprovemdnts as initially constructed or changed or altered as permitted herein, the Improvements shall be maintained and the hotel shall be operated In a manner at i least comparable to the standard of graality • � for "first-class" hotelm operated and maintained from time to time by any of the following hotel companies: Milton, Sheraton, i Marriott, Radissoyn, Hyatt, Guest Quarters, -� Ranada, or any subsidiaries thereof, in th a 5cuthern california area. The demignation "first-class" is intended to refloat the ,J highest standard :�f hotel operation other than XXXXBIT „Me to Att:aahmalt No. 0 Page 14 of 24 08/25/8 0 FINAL 1, 11 �:r 1 • .1 «I.•1.• .• •. .•, r• " 1r YI , deluxar, luxury or resort hot*13 . it is recognized that not all ,services and -� facilities available in one first=class hotel will necessarily be provided by all first- class hotels, but that the composite of service and facilities provided by each t� ss to a me firs cla hotel ill cause the - same to be. deemed to constitute a First-class hotel. Leasor and/or Lessee may request additions or - derletioya to such list, subj act to the reasonable approval of the other party provided, however, in no event &hall there be fewer than five (5) hotel companies on such list at any one time. 19 . Section 7 . 6 . A. Original Lease. Unchanged. H. Now Lease. Add a now Section 7 .6 to one of the New Leases for ar hotel project, with the specific lease to be selected by Developer, to read in its ,^ entirety as follows: t ' 7. 6 Concession at City Beach. During _ the term R th s TAase, not less than ninety (90) days prior to the expiration, renewal, or extension of the lease/concession agreement between the City and they lessee/concessionaire for the concession located at the City b*ach across Pacific Coast Highway from the Promises, Lessor shall notify Lessee and provide the opportuni.ty for Lessee to submit L� proposal to the City for the continued _ operation of said concession. Nothing in this Section 7 .6 shall be deemed as a prejudgment by the City or Lessor of the merits of any proposal that Lessee might elect to submit. It is understood that any such ' nroposal would bo required to preserve or enhance the existing type and quality of services now J avaiMblo to the general public *s well as to serve hotel guests. �0. Section B .Z . A. OriSinal Lease. Unchanged. B. New Lease. Revise paragraph (b) to read as fol- ows t 33MISIT "Ste to Attachment: No. 4 • Page 13 of 84 06/15/88 9'1NAIJ "��Sri�•,1°•f' r JA+fY Lose** will be p constructing, operating,, and maintaining an the ' Premises ocwan- oriented, visitor-serving commercial �. facilities which are designed to take full advantage of the existing ocean views across Pacific Coast Highway+ tosses desires to obtain assurances from Lessor that such views will not be obstructed during the term of this Lease b 31. Suction ,8 .3 . As Ori inal Lea se. At the time of each Disposition Transfer of a Separate Development Parcel in the Cummeyrcial portion;,, the 65 ,000. 00 figure in Section 3 . 3 (a) shall be reduced by one-sixth ($833.33) and the $10, 000. 00 figure in Section 8 . 3 (b) shall be reduced by one-sixth ($1,6d6. 66) , such that after the finale (i ,e: , the sixth) Disposition Transfer of a Separate Development Parcel' in ' the Cdiworcial Portion, the entire payment obligation has born transferred to and allocated among such Separate Development Parcels in accordance with Paragraph S below. B. Now Lease. The f ',000. 00, figure in Section 8 . 3 (a) Eall. W , change6L to . "Eight Hundred Thirty-Three Dollars and Thirty-Three -Cents ($833 . 33 j" • and the $10000. 00 figure in Section 0 .3(b), shall be t changed to "One Thousand Six " Hundred Sixty-six Dollars and Sixty-Six Cants • ($1, 4566. 6K) . " Yn addition, add a new Section 8.3 (c) to read ., in its entirety as followa t (c) Por each 'Lease Year • from - 2014 -:o 30861 inclusive, or the earlier termination of this Lease, the 'sum of One Thousand Six Hundred Sixty-Six Dollars and ..,Sixty-Six Cents 01,666+ 66) per year adjusted upward as of January 1, 3014 , and each . January , 1st th4reaftor as orovidod r erain (the "Adjustment Dates") , with such sum payable In advances on . the first day of each such year. , The annual adjustment shall be calculated upon the basis of the United States Den artr�,ant of Labor, Btlugeau of Labor Statistics consumer Price Inda, x of Urban Wage Earners and Clerical ■ Workera, Los Angeles-Long Beach-Anaheim Average, all Items (1967 m 1001 (the "Index") . The Index published and in offect ninety (90) days prior to the twenty-fifth (25th) XZRIBIT sas to 1►tteahment No. i Page 16 Of Sa Os/15/68 FINAL VN tti • 4' . Ark row ll t 4 a'.tiniversary of the fffactive Date dhall be considered the "Bass Year Index. " ' At oarh Adjustment Date, the • consideration otherwise duo shall be adjusted b �- Y the perc8nta,ge increase, if any.P between the Bas• Year Index attd the Index ; publ erred and in , effect ninny:' (90) days .,preceding the Adjustment Date. in no . evant, shall - the consideration payable, an piny Adjustment Date be less, than the consideration, requirad "to be paid dur ng'. the year `1.Umediatel y y 'preceding such - Adjusi,:mesnt Date , notwithstanding the. fadt that the Index may, an of some Adjustment", Oate, , be less than the , Index as opt the previous. Adjustmeht , Date or i-,he Base Y&'ar Index. when the amc,unt of the adjusted., consideration is determin'*d, and E, at least . thirty (3o) days prior to t,ha data r paymint for the next ybsr is due, Lessor ',eha11 give Losses written notice of the ampunt of the edjustsd consideration indicating.".how the new figure was computed, If at any Adjustment Date the Index shall not exist in the, came format an recited heroin, Lessor .and Lessea � shall: , agree., to substitute an' offiria•1 , index publishedr,by the Bureau of Labor Statiaticd, or successor- or similar governmental agency, as may then be in existence and which is .most nearly equivalent to the Index. Should Lessor and Lesseret .be unable to ,mutually. agree I as tG any, ouch• substitute index prior to . tha date a . agieeemern�t ' Jis ro4uf'rsd, in order to ro Orl •-.and timely corn 1 with this az p k Y S P Y p �agraph 8 3, dertermina►ti6h of ,the. proper aubstitute index shall be, by arbitration ''conducted in accordanoe. with;.the then-prevailinq *commorcial arbitration rules of the American Arbitration � R • Association or its successor. . 220 Sectinnn g 1 C A. Original Lease. Unchanged. B. Now Lease. Dalerte all but the first sentence. e� t, BUIAIT IND#$ to Attacbsent No. s tsge 17 of 34 a��1B/8!i 1�rNAh