Agenda packet — Montebello City Council, September 28, 2022 (part 2 of 5)

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ARTICLE I

DEFINITIONS AND EXHIBITS
Section 1.1 Definitions and Rules of Construction . Capitalized terms used and not defined herein shall, for all purposes of this Facility Lease, have the meanings specified in the Indenture; and the additional terms defined herein shall, for all purposes of this Facility Lease, have the meanings herein specified. Unless the context otherwise indica tes, words importing the singular number shall include the plural number and vice versa. The terms “hereby,” “hereof,” “hereto,” “herein,” “hereunder” and any similar terms, as used in this Facility Lease, refer to this Facility Lease as a whole.
“Additional Payments” has the meaning set forth in Section 4.11. “Bonds” means the $_________ Montebello Public Financing Authority Lease Revenue Bonds, Series 2022B (Topgolf Project) (Federally Taxable), issued by the Authority pursuant to the Indenture.
“Facility” has the meaning set forth in the recitals.
“Facility Lease” means this Facility Lease, by and between the Authority, as lessor, and the City, as lessee, as amended and supplemented from time to time. “Fiscal Year ” means the fiscal year of the Cit y, as it may be modified from time to time, currently July 1 through June 30.
“Hazardous Substances ” means any substance, waste, pollutants, or contaminants now or hereafter included in such (or any similar) term under any federal, state or local code, sta tute, regulation or ordinance now in effect or hereafter enacted or amended. “Improvement Rent ” means Rent payable by Top golf to City under the Sublease and designated therein as Improvement Rent.
“Indenture” means the Indenture, dated as of the date hereof, by and between The Bank of New York Mellon Trust Company, N.A ., as trustee, and the Authority, as amended and supplemented from time to time.
“Independent Counsel ” means an attorney duly admitted to the p ractice of law before the highest court of the State and who is not an employee or officer of the Authority or the City. “Lease Payment Date” means each May 1 and November 1, commencing May 1, 2023. “Lease Payments Fund” means the fund established pursuant to Section 4.4(d) hereof. “Permitted Encumbrances” means as of any particular time: (1) liens for general ad valorem taxes and assessments, if any, not then delinquent, or which Topgolf may, pursuant to Section 6.6 of the Sublease, permit to remain unpai d; (2) the Site Lease, as it may be amended from time to time; (3) this Facility Lease, as it may be amended from time to time; ( 4) the Assignment Agreement, as it may be amended from time to time; (5) the Sublease as it may be amended from time to time; (6) any right or claim of any mechanic, laborer, materialman, supplier or vendor filed or perfected in the

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manner prescribed by law after the Delivery Date for the Bonds which is being contested by Topgolf in accordance with Section 6.7(b) of the Sublease ; (7) easements, rights of way, mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions which exist of record as of the Delivery Date for the Bonds and which the City certifies in writing on the Delivery Date for the Bonds will not materially impair the use of the Facility for its intended purpose; and (8) easements, rights of way, mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions established following the Delivery Date for the Bonds, or existing on any real property substituted for the Site, to which the Authority and the City consent in writing and which the City certifies will not materially impair the use of the Facility for its intended purpose and will not, in and of itself, result in abate ment of Lease Payments under this Facility Lease. [To be updated]
“Project” has the meaning set forth in recitals.
“Site” has the meaning set forth in recitals.
“Site Lease ” means the Site Lease defined in the recitals hereto, as amended and supplemented from time to time.
“Sublease” means the Sublease Agreement dated the date hereof by and between the City and Topgolf, as it may be amended and supplemented from time to time. “Tax-Exempt Bonds ” means Additional Bonds the interest on which is intended to be excluded from gross income under federal income tax laws. “Term” means the term of this Facility Lease as established by Section 4.2 hereof. “Topgolf” has the meaning set forth in recitals.

Section 1.2 Exhibits. The follo wing Exhibits are attached to, and by reference made a part of, this Facility Lease:

Exhibit A: Description of the Site.

Exhibit B: Schedule of Lease Payments.

ARTICLE II

REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1 Representations, Warranties and Covenants of the City. The City represents, warrants and covenants to the Authority as follows:
(a) Due Organization and Existence . The City is a municipal corporation, duly organized and existing under and by virtue of the Constitution and laws of the State, with the power and authority to own, lease and acquire real and personal property and equipment. (b) Authorization; Enforceability . The Constitution and laws of the State authorize the City to enter into this Facility Lease, and the Sublease and to enter into the transactions contemplated by and to carry out its obligations under this Facility Lease, and the Sublease and the City has duly authorized the execution and delivery of this Facility Lease, and the Sublease. This

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Facility Lease, and the Sublease constitute the lega lly, valid and binding obligations of the City, enforceable in accordance with their terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting the rights of creditors generally.
(c) No Conflicts or Default; No Liens or Encumbrances . Neither the execution and delivery of this Facility Lease, and the Sublease, nor the fulfillment of or compliance with the terms and conditions hereof, nor the consummation of the transacti ons contemplated hereby and thereby, conflicts with or results in a breach of the terms, conditions or provisions of any restriction or any agreement or instrument to which the City is now a party or by which the City is bound, or constitutes a default und er any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of the City or upon the Site, except for Permitted Encumbrances and the pledges contained in the Indenture. (d) Execution and Delivery . The City has duly executed and delivered this Facility Lease, and the Sublease in accordance with the Constitution and laws of the State and the City Charter.
(e) Indemnification of the Authority and the Trustee. To the extent permitted by law, the City covenants to defend, indemnify and hold harmless the Authority and the Trustee and their respective assigns, board members, directors, officers and employees (collectively, the “Indemnified Party ”) against any and a ll losses, claims, damages or liabilities, joint or several, including fees and expenses incurred in connection therewith, to which such Indemnified Party may become subject under any statute or at law or in equity or otherwise in connection with the transactions contemplated by this Facility Lease arising solely from City negligence or willful misconduct, and shall reimburse any such Indemnified Party for any legal or other expenses incurred by it in connection with investigating any claims against it and defending any actions, insofar as such losses, claims, damages, liabilities or actions arise out of the transactions contemplated by this Facility Lease. In particular, without limitation, to the extent permitted by law, the City shall and hereby agrees t o indemnify and save the Indemnified Party harmless from and against all claims, losses and damages, including legal fees and expenses, arising out of (i) the use, maintenance, condition or management of, or from any work or thing done on, the Site by the City including, without limitation, any Hazardous Materials Activity on or about the Site by the City or the violation of any Environmental Laws at the Site by the City or in connection with the construction or operation of the Project , (ii) any breach or default on the part of the City in the performance of any of its obligations under this Facility Lease, (iii) any act of negligence of the City or of any of its agents, contractors, servants, employees, licensees or invitees with respect to the Facility, ( iv) any act of negligence of any assignee or sublessee of the City with respect to the Facility, or (v) any accident, injury or damage to any person or property occurring in, on or about the Facility or any part thereof.

Notwithstanding the foregoing, the City shall not defend, indemnify and hold harmless any Indemnified Party for claims, losses or damages, including legal fees and expenses, arising out of the willful misconduct or negligence of such Indemnified Party.

Section 2.2 Representations, Warranties and Covenants of the Authority. The Authority represents, warrants and covenants to the City as follows:
(a) Due Organization and Existence; Enforceability . The Authority is a public body corporate and politic duly organized, existing and in good standing under and by virtue of the laws of the State and the JPA Agreement, has the power to enter into the Site Lease, this Facility

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Lease, the Assignment Agreement and the Indenture; is possessed of full power to own and hold real and personal property, and to lease a nd sell the same; and has duly authorized the execution and delivery of the Site Lease, this Facility Lease, the Assignment Agreement and the Indenture . The Site Lease, this Facility Lease, the Assignment Agreement and the Indenture constitute the legal ly valid and binding obligations of the Authority, enforceable in accordance with their respective terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting the rights of creditors generally. (b) No Encumbrances . The Authority will not pledge or encumber the Lease Payments or Additional Payments or other amounts derived from the Facility or from its other rights under this Facility Lease or the Site Lease, except as provided under the terms of this Facility Lease, the Site Lease, the Assignment Agreement and the Indenture. (c) No Conflicts or Defaults; No Liens or Encumbrances . Neither the execution and delivery of the Site Lease, this Facility Lease, the Assignment Agreement, or the Indenture, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, nor the consummation of the transactions contemplated hereby or thereby, conflicts with or results in a breach of the terms, conditions or provisions of the formation documents of the Authority or any restriction or any agreement or instrument to which the Authority is now a party or by which the Authority is bound, or constitutes a default under any of the forego ing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of the Authority, except for the Assignment Agreement and the pledges contained in the Indenture, or upon the Site, except for the Permitted Encumbrances.
(d) Execution and Delivery. The Authority has duly executed and delivered the Site Lease, this Facility Lease, the Assignment Agreement, and the Indenture in accordance with the Constitution and laws of the State and the JPA Agreement. (e) Maintenance of Existence . To the extent permitted by law, the Authority agrees that during the term hereof it will maintain its existence as a joint powers authority, will not dissolve or otherwise dispose of all or substantially all of its ass ets, if any, will not become a general or limited partner in any partnership and will not combine or consolidate with or merge into any other entity or permit one or more other entities to consolidate with or merge into it, unless (i) such action will not cause a merger of the City’s leasehold interest in the Facility and Topgolf’s sub - leasehold interests in the Facility, (ii) the successor thereto is a public agency which expressly agrees to assume all rights and responsibilities of the Authority under the Site Lease, this Facility Lease, the Assignment Agreement, and the Indenture, and (iii) the Authority provides to the Trustee an Opinion of Bond Counsel that such combination, consolidation or merger will not, in and of itself, cause the interest on any O utstanding Tax-Exempt Bonds to be included in the gross income of the Owners thereof for federal income tax purposes. Nothing herein shall prevent the Authority from becoming a member of another joint exercise of powers authority.
(f) Use of Topgolf Sublease Payments. The Authority acknowledges and agrees that any payments made by Topgolf to the City under the Sublease as [Base R ent] may not be pledged by the Authority to the repayment of the Bonds.

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ARTICLE III

APPLICATION OF BOND PROCEEDS; CONSTRUCTION OF PROJECT
Section 3.1 Deposit of Bond Proceeds . On the Delivery Date for the Bonds, the Authority shall cause the net proceeds of the Bonds to be paid to the Trustee . Such funds shall be deposited by the Trustee in the funds and accounts as provided in Section 3.02 of the Indenture.

Section 3.2 Financing of the Project. The Trustee shall disburse the net proceeds of the Bonds for the purpose of paying the costs of issuance of the Bonds and the costs of constructing the Project and other portions of the Project in accordance with Sections 3.03 and 3.04 of the Indenture.

Section 3.3 Construction of the Project; Completion Certification . The Authority hereby appoints the City as its agent for purposes of constructing the Project and the City consents to such appointment. The City and the Authority expect that construction of the Project will be substantially completed in accordance with plans and specifications described in the Sublease on or prior to __________, 20__.

Upon the completion of acquisition, construction, delivery and installa tion of the Project, the Authority shall deliver to the Trustee a Completion Certificate with respect thereto. On the date of filing a Completion Certificate, all excess moneys remaining in the Project Fund under the Indenture shall be applied in accordance with the provisions of Section 3.04 of the Indenture.

If the Authority, for any reason whatsoever, cannot deliver possession of the Facility to the City by __________, 20__, and as a result of which non -delivery the City is deprived of the use and occupancy of a substantial portion of the Facility, this Facility Lease shall not be void or voidable, nor shall the Authority be liable to the City for any loss or damage resulting therefrom. In such event, however, Lease Payments and Additional Payments, wit h respect to the period between __________, 20__ and the time when the Project is substantially completed and the Facility is available for use and occupancy by the City , shall be payable solely to the extent and from the sources of payment identified in Section 4.10(a) hereof.

Section 3.4 Further Assurances and Corrective Instruments . The Authority and the City shall execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Site hereby leased or i ntended to be leased or for carrying out the expressed intention of this Facility Lease.

ARTICLE IV

AGREEMENT TO LEASE; TERM OF LEASE; LEASE PAYMENTS
Section 4.1 Lease. The Authority hereby leases the Facility to the City and the City hereby leases the Facility from the Authority upon the terms and conditions set forth herein and subject to the Permitted Encumbrances.

Section 4.2 Term. The Term of this Facility Lease shall commence on the Closing Date for the Bonds and shall end on November 1, 20__, unless extended pursuant to Section 4.3 hereof, or unless terminated prior thereto upon the earliest of any of the following events:

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(a) Payment of All Lease Payments . The payment by the City of all Lease Payments required under Section 4.4 hereof and any Additional Payments required under Section 4.11 hereof; or
(b) Prepayment. The prepayment of all Lease Payments in accordance with Article X hereof and the payment of all Additional Payments due through such prepayment date.

Section 4.3 Extension of Lease Term . If on the final maturity date of the Bonds all interest and principal shall not be fully paid by the City, or if the Lease Payments or Additional Payments hereunder shall have been abated at any time as permitted by the terms hereof, then the Term shall be extended until all Bonds and Additional Paymen ts shall be fully paid, except that the Term shall in no event be extended beyond November 1, 20__.

Section 4.4 Lease Payments.
(a) Time and Amount . Subject to the provisions of Section 4.10 (regarding abatement in event of non-delivery of the Facility or loss of use of any portion of the Facility) and Article X (regarding prepayment of Lease Payments), the City agrees to pay to the Authority, its successors and assigns, from moneys on deposit in the Lease Payments Fund, as annual rental for the use and po ssession of the Facility, the Lease Payments. The Lease Payments are intended to be sufficient in both time and amount to pay when due the principal and interest on the Bonds, and are due and payable in arrears and in immediately available funds fifteen d ays prior to each May 1 and November 1, commencing May 1, 2023 (the “Lease Payment Date”) as set forth in Exhibit B hereto.

The payment due fifteen days prior to each Ma y 1 shall be rental for the period from the prior November 1 through the next following April 30 and the payment due fifteen days prior to each November 1 shall be rental for the period from the prior Ma y 1 through the next following October 31; provided, however, the portion of the payment due on November 1 attributable to principal on the Bonds shall be payment for the rental period commencing the prior November 1.

The obligation of the City to pay Lease Payments shall commence on the first Lease Payment Date set forth in Exhibit B hereto; provided, however, that, until the Facility is completed and made available for use and occupancy by the City, the Lease Payments may be abated and shall be paid only to the extent described in Section 4.10(a) hereof from any liquidated damages of the type described in Sect ion 4.10(a) hereof and any Improvement Rent deposited to the Debt Service Fund, or any other source of legally available funds.

All amounts received by the City as Improvement Rent under the Sublease shall be promptly transferred by the City to the Trustee (as assignee of the Authority) for deposit in the Debt Service Fund maintained under the Indenture.
(b) Credits. Any amount held under the Indenture in the Debt Service Fund on the date any Lease Payment is made by the City (other than amounts (i) held in the Debt Service Fund for the payment of designated Bonds, (ii) required for payment of past due principal or interest with respect to any Bonds that have matured or been called for redemption and have not been presented for payment, (iii) which have been paid with respect to a prior Lease Payment Date but not yet distributed to Owners , or (iv ) transferred from the Reserve Account , which transfer caused the balance therein to be less than the Reserve Requirement, shall be credited towards the Lease Payment then due and payable. No payment need be made by the City on any Lease Payment Date if the

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amounts then held in the Debt Service Fund (other than those amounts excluded under the prior sentence) are at least equal to the Lease Payment then required to be paid. (c) Rate on Overdue Payments . In the event the City should fail to make all or any portion of any Lease Payments required by this Section 4.4 other than as a result of a Deficiency, the unpaid Lease Payment s, or portion thereof unpaid, shall continue as an obligation of the City until the unpaid amount shall have been fully paid, and the City agrees to pay the same with interest thereon from the date such amount was originally due at the rate equal to the original interest rate payable on the Outstanding Bonds.

Section 4.5 No Withholding . Notwithstanding any dispute between the Authority and the City, other than a dispute arising under Section 4.10 hereof as a result of which the City has concluded that it may not legally pay the Lease Payments in dispute, the City shall make all Lease Payments when due and shall not withhold any Lease Payments pending the final resolution of such dispute.

Section 4.6 Fair Rental Value . The Lease Payments and the Additional Payments (as defined in Section 4.11 hereof) shall be paid by the City in consideration of the right of possession and the continued quiet use and enjoyment of, the Facility during each such period for which said rental is to be paid. The parties hereto have agreed and determined that the Lease Payments and Additional Payments payable in each Fiscal Year do not exceed the fair rental value of the Facility for such Fiscal Year and the total rental to be paid hereunder does not exceed the fair rental value of the Facility during the Term of this Facility Lease. In making such determinations, consideration has been given to the fair rental value of the Facility including but not limited to costs of operation, maintenance, taxes and insurance, the construction cost of the Project, the insured value of the Facility, the uses and p urposes which may be served by the Facility and the essential public benefits therefrom which will accrue to the City and the general public.

Section 4.7 Budget and Appropriation. The City covenants to take such action as may be necessary to include all Lease Payment s and Additional Payments due hereunder in each of its proposed annual budgets and its final adopted annual budgets beginning with the Fiscal Year in which the first Lease Payment Date occurs through the Term of this Facility Lease and to make the necessary appropriations for such Lease Payments and Additional Payments. The City shall furnish to the Trustee within 15 days following adoption of the final budget in each Fiscal Year a certificate stating that the Lease Payments were included in the final budget as adopted.

To the extent that the amount of such Lease Payments or Additional Payments becomes known after the adoption of the annual budget, such amounts shall be included and maintained in such budget as amended. The City covenants to take such acti on as is necessary to include such amounts in an amendment to the supplemental budget of the City. The covenants on the part of the City herein contained shall be deemed to be and shall be construed to be ministerial duties imposed by law and it shall be the ministerial duty of each and every public official of the City to take such action and do such things as are required by law in the performance of the official duty of such officials to enable the City to carry out and perform the covenants and agreem ents in this Facility Lease agreed to be carried out and performed by the City.

The obligation of the City to pay Lease Payments and Additional Payments hereunder shall constitute a current expense of the City and shall not in any way be construed to be a debt of the City, or the State, or any political subdivision thereof, in contravention of any applicable constitutional or

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statutory limitation or requirements concerning the creation of indebtedness by the City, the State, or any political subdivision the reof, nor shall anything contained herein constitute a pledge of general revenues, funds or moneys of the City or an obligation of the City for which the City is obligated to levy or pledge any form of taxation or for which the City has levied or pledged any form of taxation.

Section 4.8 Assignment of Lease Payments . The Authority’s rights under this Facility Lease, including the right to receive and enforce payment of the Lease Payments to be made by the City hereunder, have been assigned to the Trustee, subject to certain exceptions, pursuant to the Assignment Agreement, to which assignment the City hereby consents. The Authority hereby directs the City, and the City hereby agrees, to pay to the Trustee at the Trustee’s corporate trust office, or to the Trustee at such other place as the Trustee shall direct in writing, all Lease Payments or prepayments thereof pursuant to Article X hereof payable by the City hereunder. The Authority will not assign or pledge the Lease Payments or other amounts derived from the Facility or from its other rights under this Facility Lease or its duties and obligations hereunder except as provided under the terms of this Facility Lease, the Assignment Agreement or the Indenture.

Section 4.9 Use and Possession. The total Lease Payments and Additional Payments due in any Fiscal Year shall be for the use and possession of the Facility for such Fiscal Year. During the Term of this Facility Lease, the City shall be entitled to the exclusive use and possession of the Facility, subject only to the Permitted Encumbrances.

Section 4.10 Abatement of Lease Payments and Additional Payments. (a) In the Event of Non -Delivery. To the extent described below, the amount of Lease Payments and Additional Payments due hereunder shall be abated during any period in which by reason of delay in the completion of the Project beyond __________, 20__ [fifteen months following the Cl osing] there is substantial interference with the City’s use and occupancy of the Facility. The amount of such abatement shall be such that the resulting Lease Payments and Additional Payments do not exceed the fair rental value (as determined by an indep endent real estate appraiser selected by the City, who may not be an employee of the City) for the use and occupancy of the portions of the Facility available to the City for its use and occupancy. Such abatement shall continue until the substantial compl etion of the Facility. Notwithstanding the foregoing, the City shall remain obligated to make Lease Payments and Additional Payments hereunder, as an obligation of the City payable from a special fund, (i) to the extent there are proceeds of any completio n or performance bonds or moneys paid to the City by the City’s contractors or any other person as liquidated damages as a result of any defect or delay in completion of the portion of the Project being constructed on the Site, or (ii) to the extent that amounts in the Debt Service Fund are available to pay Lease Payments which would otherwise be abated under this Section 4.10(a). Any amounts received by the City as liquidated damages shall be delivered by the City to the Trustee immediately upon receipt thereof for deposit by the Trustee in the Debt Service Fund. (b) In the Event of Damage, Destruction, Condemnation or Title Defect . Except to the extent that proceeds of the type described in Section s 5.4 and 5.6(c) are available, the Leas e Payments and Additional Payments shall be abated during any period in which there is substantial interference with the use or possession of all or a portion of the Facility by the City by condemnation, damage, destruction or title defect. The amount of such abatement shall be such that the resulting Lease Payments, exclusive of the amounts described in Sections 5.4 and 5.6(c), do not exceed the fair rental value (as determined by one or more independent appraisers selected by the City, who are not employees of the City) for the use and possession of the portion of the Facility for which no

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substantial interference has occurred. The City shall calculate such abatement and shall provide the Trustee and the Authority with a certificate setting forth such calculation and the basis therefor. Such abatement shall continue for the period of the substantial interference with the use or possession of the Facility. Except as provided herein, in the event of any such interference with use or possession, this Facility Lease shall continue in full force and effect and the City waives any right to terminate this Facility Lease by virtue of any such interference. (c) The City’s obligation to pay Lease Payments as and to the extent required by this Facility Lease shall not be subject to use of the Facility by Topgolf, Topgolf’s performance under the Sublease or the status of the Sublease.
(d) Notwithstanding a substantial interference with the use or possession of all or a portion of the Facility, the City shall remain obligated to make Lease Payments (i) in the amount determined in accordance with subsection (a) or (b) above; (ii) to the extent of proceeds of the type described in Sections 5.4 and 5.6(c), (iii) to the extent that moneys derived from any person as a result of any delay in the construction, reconstruction, replacement or repair of the Facility, or any portion thereof, are available to pay the amount which would otherwise be abated; or (i v) to the extent that moneys are available in the Debt Service Fund to pay the amount which would otherwise be abated.
(e) In the event of any interference with use as described in this Section 4.10, this Lease shall continue in full force and effect and the City waives the benefits of California Civil Code Section 1932(2) and 1933(4) an d Title 11 of the United States Code, Section 365(h) and all other rights to terminate this Lease by virtue of any such interference.

Section 4.11 Additional Payments. In addition to the Lease Payments, the City shall also pay Additional Payments, which shall include such amounts as shall be required for the payment of all administrative costs of the Authority and the City relating to the Facility and the Bonds, including without limitation all expenses, assessments, compensation and indemnification of the Trustee payable under the Indenture, any amounts required to be rebated to the federal government in order to comply with the provisions of Section 148 of the Code regarding any Tax-Exempt Bonds, taxes of any sort whatsoever payable by the Authority as a result of its lease of the Facility or undertaking of the transactions contemplated herein or in the Indenture, fees of auditors, accountants, attorneys or engineers, insurance premiums required by Article V hereof, items required by Section 7.7 hereof and all other ne cessary administrative costs of the Authority and the City or charges required to be paid by it in order to maintain its existence or to comply with the terms of the Bonds and any Additional Bonds or of the Indenture, or to indemnify the Authority and its officers and directors (collectively, “Additional Payments”) . All such Additional Payments to be paid hereunder shall be paid when due directly by the City to the respective parties to whom such Additional Payments are owing. The City’s obligation to pay Additional Payments shall be limited to an amount not to exceed the cumulative sources of revenue described in Section 4.4(c).

Section 4.12 Net-Net-Net Lease. This Lease is and shall be deemed and construed to be a “net-net-net lease” and the City hereby agrees that the Lease Payments shall be an absolute net return to the Authority, free and clear of any expenses, taxes, fees, insurance premiums, rebate payments, reserve deposits, charges, counterclaims, set -offs or other costs associ ated with the Facility or this Facility Lease, whatsoever.

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ARTICLE V

INSURANCE
Section 5.1 Public Liability and Property Damage.
(a) Coverage. The City shall maintain , or cause Topgolf to maintain, throughout the Term hereof, a standard comprehensive general public liability and property damage policy or policies, including general liability, liquor liability, automobile liability, in protection of the City and the Authority and their respective officers, agents and employees as additional insureds under the policy or policies. Said policy or policies shall provide for indemnification of said parties against direct or contingent loss or liability for damages for bodily and personal injury, death or property damage occasioned by reason of the use or operation of the Facility. (b) Limits. Said policy or policies shall provide coverage in the minimum liability limits of $20,000,000 for personal injury or damage to property resulting from each accident or event. The general aggregate limit shall be not less than Forty Million Dollar s ($40,000,000) unless a Twenty Million Dollars ($20,000,000) per location aggregate limit is provided by separate endorsement. Such public liability and property damage insurance may, however, be in the form of a single limit policy covering all such ris ks in an amount equal to the aggregate minimum liability limits set forth herein.
(c) Joint or Self-Insurance. Such liability insurance may be maintained as part of or in conjunction with any other liability insurance coverage carried by the City. Such liabi lity insurance may be maintained by the City in the form of self -insurance which complies with Section 5.6(e) hereof.
(d) Satisfaction by Topgolf. The requirements of this Section 5.1 shall be deemed satisfied by Topgolf’s compliance with and satisfaction of the requirements of Section 16.2 of the Sublease.

Section 5.2 Worker’s Compensation . The City shall also maintain worker’s compensation insurance issued by a responsible carrier authorized under the laws of the State to insure its employees against liability for comp ensation under the Worker’s Compensation Insurance and Safety Act now in force in the State; or any act hereafter enacted as an amendment or supplement thereto, or in lieu thereof such insurance, or a part thereof, may be maintained by the City in the form of self-insurance which complies with Section 5.6(e) hereof.

Section 5.3 Hazard Insurance.
(a) Coverage. The City shall maintain throughout the Term hereof, a policy or policies of insurance against loss or damage to the Facility resulting from fire, lightning, vandal ism, malicious mischief and such perils ordinarily defined as “extended coverage”, excluding flood and earthquake; provided, however, that an earthquake and flood rider shall be purchased for the Facility if the City reasonably determines that such coverage is available at a reasonable cost . This policy or policies may be in the form of a builder’s risk policy providing coverage in an amount not less than the construction costs expended for the Project until such time as the Facility is complete and available for use and occupancy and thereafter shall be maintained in an amount not less than the full replacement value of the Facility and shall name the Authority and the Trustee as additional insureds

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and the Trustee as loss payee under the policy or policies. The term “full replacement value” as used in this Section 5.3 shall mean the actual replacement cost of the improvements located on the Site (including the cost of restoring the surface of the Site, but excluding the cost of restoring trees, plants and shrubs).
(b) Joint or Self -Insurance. Such insurance may be maintained as part of or in conjunction with any other insurance carried by the City. The City shall not maintain such insurance in the form of self-insurance.
(c) Satisfaction by Topgolf. The requirements of this Section 5.3 shall be deemed satisfied by Topgolf’s compliance with and satisfaction of the requirements of Section 16.2 of the Sublease.

Section 5.4 Rental Interruption Insurance.
(a) Coverage and Amount. The City shall maintain rental interruption i nsurance with respect to the Facility in an amount not less than the maximum scheduled Lease Payments payable in any twenty-four month period during the Term hereof due with respect to the Facility, to insure against loss of rental income from the Facility caused by perils covered by the insurance required to be maintained as provided in Section 5.3 hereof. Such insurance shall be obtained not later than thirty (30) days prior to the first Lease Payment Date set forth in Exhibit B hereto. (b) Joint Insurance . Such insurance may be maintained as part of or in conjunction with any other rental interruption insurance carried by the City. The City shall not maintain rental interruption insurance in the form of self-insurance. (c) [Satisfaction by Topgolf. The requir ements of this Section 5.4 shall be deemed satisfied by Topgolf’s compliance with and satisfaction of the requirements of Section 16.2 of the Sublease.]
Section 5.5 Title Insurance. The City shall obtain on the Delivery Date for the Bonds, title insurance on the Site, in the form of an ALTA Owner’s/Leasehold Policy with Western Regional Exceptions. The title policy or policies in effect at any time with respect to the Site shall b e in an amount at least equal to the aggregate outstanding principal amount of the Bonds and be issued by a company of recognized standing duly authorized to issue the same. The title policy or policies shall insure the City’s leasehold estate hereunder in the Site, subject only to Permitted Encumbrances. The City shall not maintain title insurance in the form of self-insurance.

Section 5.6 Payment of Insurance Proceeds.
(a) Proceeds of any policies of liability insurance required by Section 5.1 above shall be applied to ward extinguishment or satisfaction of the liability with respect to which the insurance proceeds shall have been paid.
(b) Any Net Proceeds of hazard insurance required by Section 5.3 above shall be paid to the Trustee and be applied as provided in Section 6.1(a). (c) Proceeds of any rental interruption insurance required by Section 5.4 above shall be paid to the Trustee and credited towards the payment of the Lease Payments in the order in which such Lease Payments come due and payable.

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(d) The proceeds of any title insurance required by Section 5.5 above shall be paid to the Trustee and be applied as provided in Section 6.1(a).

Section 5.7 General Insurance Provisions.
(a) Form of Policies . All policies of insurance required to be procured and maintained pursuant to this Facility Lease, other than the worker’s compensation insurance and the title insurance specified in Sections 5.2 and 5.5 hereof, respectively, and any statements of self-insurance shall provide that the City and the Trustee shall receive 30 days’ notice of each expiration, or any intended cancellation thereof or reduction of the coverage provided thereby.

Insurance required to be procured and maintained pursuant to Section 5.3 hereof (regarding hazard insurance); Section 5.4 hereof (regarding rental interruption ins urance) and Section 5.5 hereof (regarding title insurance) shall provide that all proceeds thereunder shall be payable to the Trustee as the insured or loss payee. Required insurance policies, other than self -insurance, must be provided by a commercial insurer rated A or better by Best or in the two highest rating categories of S&P and Moody’s. The insurance required by Sections 5.3 and 5.4 shall name the City as the insured and the Trustee and the Authority as additional insureds.
(b) Payment of Premiums. The City shall pay or cause to be paid when due the premiums for all insurance policies required by this Facility Lease. (c) Protection of the Trustee . The Trustee shall not be responsible for the sufficiency or adequacy of any insurance herein required and s hall be fully protected in accepting payment on account of such insurance or any adjustment, compromise or settlement of any loss agreed to by the City and the Authority.
(d) Evidence of Insurance . The City shall deliver certificates to the Trustee within the 30 days prior to November 1 of each year during the Term of this Facility Lease evidencing that the insurance policies required by this Facility Lease are in full force and effect. (e) Self-Insurance. Any self -insurance maintained by the City pursuant to Section 5.1(c) or 5.2 hereof shall afford reasonable protection to the Authority, the City and the Trustee. Prior to self-insuring and within 30 days prior to each November 1 thereafter, there shall be filed with the Trustee a certificate of an actuary, inde pendent insurance consultant selected by the City, or other qualified person selected by the City, stating that, in the opinion of the signer, the method or plan of protection is actuarially sound and affords adequate protection to the Authority, the City and the Trustee against loss and damage from the hazards and risks covered thereby, and there shall also be filed with the Trustee a certificate of the City setting forth the details of such substitute method or plan. Any self -insurance fund must be held in a separate trust fund by an independent trustee. In the event any self-insurance program is discontinued, the actuarial soundness of the claim reserve fund shall be maintained by the City. The Trustee shall be fully protected in relying on the certificate provided in accordance with this Section 5.6(e) and shall not be responsible for the review or verification of the certificate describing such method or plan.

The City shall maintain adequate reserves to cover the amount of any deductible provisions of the insurance required to be maintained pursuant to Sections 5.1, 5.2, 5.3 and 5.4 hereof.

Section 5.8 Cooperation. The Authority shall cooperate fully with the City at the expense of the City in filing any proof of loss with respect to any insurance policy mainta ined

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pursuant to this Article and in the prosecution or defense of any prospective or pending condemnation proceeding with respect to the Facility or any portion thereof.

ARTICLE VI

DAMAGE, DESTRUCTION AND EMINENT DOMAIN;

USE OF NET PROCEEDS
Section 6.1 Application of Net Proceeds.
(a) Deposit of Net Proceeds of Insurance in Insurance and Condemnation Fund .

Pursuant to Section 5.03 of the Indenture, the Trustee shall deposit the Net Proceeds of any insurance required by Section 5.3 hereof and the proceeds of the title insurance re quired by Section 5.5 hereof in the Insurance and Condemnation Fund promptly upon receipt thereof. (b) Disbursement for Replacement or Repair of the Facility. Upon receipt of the certification described in paragraph (i) below and the requisition described i n paragraph (ii) below, the Trustee is required by the Indenture to disburse moneys in the Insurance and Condemnation Fund to the person, firm or corporation named in the requisition as provided in Section 5.03 of the Indenture.
(i) Certification. An Authorized Representative of the City must provide to the Authority and the Trustee a certificate stating that:
(A) Sufficiency of Net Proceeds . The available Net Proceeds, together with any other funds made available for the purpose of replacing or repairing the Facility, are sufficient to repair or replace the Facility to a use which will have an annual fair rental value not less than the maximum annual Lease Payments and the Additional Payments (assuming that the annual Additional Payments due in the future will equal the average annual Additional Payments prior to such date) due hereunder, and
(B) Timely Completion . In the event that damage, destruction, title defect or taking results in an abatement of Lease Payments, such replacement or repair can be fully comple ted within a period not in excess of the period in which rental interruption insurance proceeds as described in Section 5.4 hereof, together with other legally available funds deposited with the Trustee, will be available to pay in full all Lease Payments coming due during such period. (ii) Requisition. An Authorized Representative of the City must state with respect to each payment to be made (i) the requisition number, (ii) the name and address of the person, firm or corporation to whom payment is due, (iii) the amount to be paid, and (iv) that each obligation mentioned therein has been properly incurred, is a proper charge against the Insurance and Condemnation Fund, has not been the basis of any previous withdrawal, and specifying in reasonable detail the nature of the obligation.

Any balance of the Net Proceeds remaining after such replacement or repair has been completed shall be disbursed as provided in Section 5.03 of the Indenture. (c) Disbursement for Prepayment . If an Authorized Representative of the City notifies the Trustee in writing of the City’s determination that the certification provided in

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Section 6.1(b)(i) hereof cannot be made then the Net Proceeds will be applied to prepay Lease Payments and redeem Bonds as set forth in Section 5.03 of the Indenture and this Facility Lease shall terminate.
(d) Deposit of Net Proceeds of Condemnation in Insurance and Condemnation Fund. The City and the Authority shall transfer to the Trustee any Net Proceeds received by the City or Authority in the event of any taki ng by eminent domain or condemnation with respect to the Facility, for deposit in the Insurance and Condemnation Fund. If the whole of the Facility or so much thereof as to render the remainder unusable for the purposes for which it was used by the City shall be taken under the power or threat of eminent domain, the term of this Facility Lease shall cease as of the day tha t possession shall be so taken. If less than the whole of the Facility shall be taken under the power or threat of eminent domain and the remainder is usable for the purposes for which it was used by the City at the time of such taking, then this Facility Lease shall continue in full force and effect as to such remainder, and the parties waive the benefits of any law to the contrary, and in such event there shall be a partial abatement of the rental due hereunder in an amount equivalent to the amount by wh ich the annual payments of Lease Payments due hereunder will be reduced by the application of the award in eminent domain to the prepayment of Lease Payments due hereunder.

ARTICLE VII

COVENANTS WITH RESPECT TO THE FACILITY
Section 7.1 Use of the Facility. The City represent s and warrants that it has an immediate essential need for all of the Facility, which need is not expected to be temporary or to diminish in the foreseeable future.

Section 7.2 Leasehold Interest in the Facility.
(a) Authority Holds Leasehold Interest During Term. During the term of the Site Lease, the Authority shall hold a leasehold interest in the Site pursuant to the Site Lease and shall be the owner of the Project and the City shall hold a leasehold interest in the Facility pursuant to this Facility Lease. The Authority shall take any and all actions, including but not limited to executing and filing any and all documents, reasonably required to maintain and evidence the Authority’s leasehold interest in the Site and its ownership of the Project at all times during t he term of this Facility Lease. The City shall take any and all actions, including but not limited to executing and filing any and all documents, reasonably required to maintain and evidence the City’s leasehold interest in the Facility at all times during the term of this Facility Lease. (b) Leasehold Interest Transferred to the City. On the day of the expiration of the Term as provided in Section 4.2 hereof, all right, title and interest of the Authority in the Site pursuant to the Site Lease and all right, title and interest of the Authority in the Project shall terminate without the necessity of any additional document of transfer by either of the parties and title to the Facility shall vest in the City.

Section 7.3 Option to Prepay Lease Payments . The City may exercise an option to prepay all or a portion of the Lease Payments in accordance with Article X hereof and, by prepaying Lease Payments in the amounts necessary to cause the termination of the Term as provided in Section 4.2(b) hereof , terminate the Authority’s leasehold interest in the Site pursuant to the Site Lease and the Authority’s right, title and interest in the Facility.

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Section 7.4 Quiet Enjoyment. Subject only to the Permitted Encumbrances, during the Term of this Facility Lease the Authority shall provide the City with quiet use and enjoyment of the Facility, and the City shall during such Term peaceably and quietly have and hold and enjoy the Facility, without suit, trouble or hindrance from the Authority, or any person or entity claiming under or through the Authority except as expressly set forth in this Facility Lease, the Assignment Agreement or the Indenture. The Authority will, at the request of the City, join in any legal action in which the City asserts its right to such possession and en joyment to the extent the Authority may lawfully do so.

Section 7.5 Maintenance, Utilities, Taxes and Assessments. (a) Maintenance; Repair and Replacement . Throughout the Term of this Lease, as part of the consideration for the rental of the Site, all repair and maintenance of the Site shall be the responsibility of the City, and the City shall pay for or otherwise arrange for the payment of the cost of the repair and replacement of the Site resulting from ordinary wear and tear or want of care on the part of the City or any sublessee thereof. The City shall provide or cause to be provided all security service, custodial service, power, gas, telephone, light, heating and water, and all other public utility services for the Site. The City shall cause Top golf to perform its obligations under the Sublease with respect to the maintenance, repair and replacement of the Site and the Project. (b) Tax and Assessments; Utility Charges. The City shall also pay or cause to be paid (including by Topgolf under the Sublease) all taxes and assessments, including but not limited to utility charges of any type or nature charged to the Authority or the City or levied, assessed or charged against any portion of the Site or the respective interests or estates therein; provided that, with respect to special assessments or other governmental charges that may lawfully be paid in installments over a period of years, the City shall be obligated to pay only such installments as are required to be paid during the Term of this Lease as and when the same become due. (c) Contests. The City may, at its expense and in its name, in good faith contest any such taxes, assessments, utility and other charges and, in the event of any such contest, may permit the taxes, assessments or other charges so conteste d to remain unpaid during the period of such contest and any appeal therefrom; provided that prior to such nonpayment it shall furnish the Authority and the Trustee with the opinion of an Independent Counsel to the effect that, by nonpayment of any such it ems, the interest of the Authority in such portion of the Site will not be materially endangered and that the Site will not be subject to loss or forfeiture. Otherwise, the City shall promptly pay such taxes, assessments or charges or make provisions for the payment thereof in form satisfactory to the Authority. The Authority will cooperate fully in such contest, upon the request and at the expense of the City.

Section 7.6 Modification of the Site.
(a) Additions, Modifications and Improvements . The City shall, at its ow n expense (or at the expense of Top golf under the Sublease) , have the right to make additions, modifications and improvements to any portion of the Site if such additions, modifications or improvements are necessary or beneficial for the use of such portio n of the Site. Such additions, modifications or improvements shall not in any way damage any portion of the Site or cause it to be used for purposes other than those authorized under the provisions of state and federal law or in any way which would impair the exclusion from gross income for federal income tax purposes of the interest on the Bonds or diminish the fair rental value of the Site; and the Site, upon completion of

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any additions, modifications or improvements made pursuant to this Section, shall be of a value which is not less than the value of the Site immediately prior to the making of such additions, modifications or improvements. Any additions, modifications and Improvements (defined in the Sublease) performed by Top golf under the Sublease sh all comply with the requirements of this Facility Lease.
(b) Liens. The City shall not, directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, liens, charges, encumbrances or claims on or with respect to the Facility, other tha n the Sublease. The City shall promptly, at its own expense, take such action as may be necessary to duly discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim, for which it is responsible, if the same shall arise at any time; provided that the City may contest such lien or claim if it desires to do so, so long as such contest will not adversely affect the rights of the City , the Authority or Topgolf to the Facility or the payment of Lease Payments and Additional Payments hereunder. The City shall reimburse the Authority and the Trustee for any expense incurred by either of them in order to discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim. The City shall promptly notif y the Authority and Topgolf of any mortgage, pledge, lien, charge, encumbrance or claim on the Facility.

Section 7.7 Authority’s Disclaimer of Warranties . THE AUTHORITY MAKES NO

WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE,

DESIGN, CONDITION, MERCHANTABILITY OR FITNES S FOR ANY PARTICULAR

PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY THE CITY OF THE FACILITY OR ANY PORTION THEREOF. THE CITY ACKNOWLEDGES THAT THE AUTHORITY IS

NOT A MANUFACTURER OF THE FACILITY OR OF ANY PORTION THEREOF, AND IS NOT A DEALER THEREIN, AND THAT THE CITY IS LEASING THE FACILITY AS IS. In no event shall the Authority be liable for incidental, indirect, special or consequential damages, in connection with or arising out of this Facility Lease, the Assignment Agreement or the Indenture for the existence, furnishing, functioning or City’s or Topgolf’s use and possession of the Facility.

ARTICLE VIII

ASSIGNMENT, SUBLEASING AND AMENDMENT
Section 8.1 Assignment by the Authority. Except as permitted in the Assignment Agreement and the Indenture, the Authority will not assign this Facility Lease, or any right, title or interest of the Authority in and to this Facility Lease, to any other person, firm or corporation unless the Authority first (i) provides to the City and the Trustee an opinion of Bond Counsel st ating that such assignment does not adversely affect the exclusion from gross income for federal income tax purposes of the interest on any Tax-Exempt Bonds and (ii) obtains the prior written consent of the City.

Section 8.2 Assignment and Subleasing by the City.
(a) Assignment. This Lease may not be assigned by the City unless the City first provides to the Authority and the Trustee an opinion of Bond Counsel stating that such assignment does not adversely affect the exclusion from gross income for federal income tax pur poses of the interest on any Tax-Exempt Bonds. In the event that this Facility Lease is assigned by the City, the obligation to make Lease Payments and Additional Payments and perform the other covenants of the City hereunder shall remain the obligation of the City.

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(b) Sublease. The Authority consents to the subleasing of the Facility by the City to Topgolf pursuant to the Sublease. The City hereby expressly covenants to enforce the City’s rights, and Topgolf’s obligations, under the Sublease.

Section 8.3 Amendments and Modifications. This Facility Lease may be amended or any of its terms modified in accordance with Article IX of the Indenture, with the written consent of the Trustee, the City and the Authority.

ARTICLE IX

EVENTS OF DEFAULT AND REMEDIES
Section 9.1 Events of Default Defined. The following shall be “events of default” under this Facility Lease and the terms “events of default ” and “default” shall mean, whenever they are used in this Facility Lease, any one or more of the following events:
(a) Payment Default . Failure by the City to pay any Lease Payment or Additional Payments required to be paid hereunder on the date such payments are due hereunder. (b) Covenant Default. Failure by the City to observe and perform any covenant, condition or agreement on its part to be observed or performed herein or otherwise with respect hereto, other than as referred to in clause (a) of this Section, for a period of 30 days after written notice specifying such failure and requesting that it be remedied has been given to the City by the Authority, the Trustee or, subject to the provisions of Section 7.01 of the Indenture, the Owners of not less than a majority in aggregate principal amount of Bonds then Outstanding ; provided, however, if the failure stated in the notice can be corrected but not within the 30 days, then no event of default shall have occurred so long as corrective action is promptly instituted by the City within the 30-day period and the default is corrected within 60 days. (c) Bankruptcy or Insolvency. The filing by the City of a case in bankruptcy, or the subjection of any right or interest of the City under this Facility Lease to any execution, garnishment or attachment, or adjudication of the City as a bankrupt, or assignment by the City for the benefit of creditors, or the entry by the City into an agreement of composition with creditors, or the approval by a court of competent jurisdiction of a petition applicable to the City in any proceedings instituted under the provisions of the federal bankruptcy code, as amended, or under any similar state or federal act.

Section 9.2 Remedies on Default . Whenever any event of default referred to in Section 9.1 hereof shall have happened and be continuing, the Authority may, subject to Section 9.7 hereof, exercise any an d all remedies available pursuant to law or granted pursuant to this Facility Lease; provided, however, that notwithstanding anything herein or in the Indenture to the contrary,

THERE SHALL BE NO RIGHT UNDER ANY CIRCUMSTANCES TO ACCELERATE THE

LEASE PAYMENTS OR OTHERWISE DECLARE ANY LEASE PAYMENTS NOT THEN DUE

OR PAST DUE TO BE IMMEDIATELY DUE AND PAYABLE NOR SHALL THE AUTHORITY

OR ITS ASSIGNEE HAVE ANY RIGHT TO REENTER THE FACILITY OR RELET THE FACILITY. THE AUTHORITY’S SOLE REMEDIES ARE DESCRIBED IN THIS SECTION 9.2.

So long as any event of default exists hereunder, the Authority and its assignee have the right to pursue the remedy of specific performance to require the City to perform City’s obligations and

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comply with the covenants under this Facility L ease. Without limiting the foregoing, the Authority and its assignee shall also have the right to require the City to enforce the City’s rights and Topgolf’s obligations under the Sublease or to directly enforce the City’s rights and Topgolf’s obligations under the Sublease on behalf of the City. The City hereby irrevocably appoints the Authority and its assignee as the agent and attorney -in-fact of the City to enforce the Sublease. The City hereby exempts and agrees to save harmless the Authority and its assignee from any costs, loss or damage whatsoever arising or occasioned by any exercise of the rights and remedies of the Authority under this Section 9.2. The City hereby waives any and all claims for damages caused, or which may be caused, by the Authority or its assignee exercising its rights and remedies under this Section 9.2 other than damages caused by the negligence of the Authority, or its assignee.

In the event of a default, the City further agrees to reimburse the Authority, and its assignee, for any cost or expense, including attorneys’ fees, incurred by the Authority or its assignee in connection with the exercise by the Authority and its assignee of the remedies hereunder.

Section 9.3 No Remedy Exclusive. No remedy conferred herein upon or reserved to the Authority and its assignee is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Facility Lease or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Authority and its assignee to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice, other than such notice as may be required in this Article or by law.

Section 9.4 Limitation on Remedies. Notwithstanding anything to the contrary herein or in the Indenture, the exercise of any remedy herein or therein shall in no event disturb the tenancy or occupancy of the Facility by Topgolf pursuant to the Sublease, except to the extent set forth in the Sublease.

Section 9.5 No Additional Waiver Implied by One Waiver . In the event any agreement contained in this Facility Lease should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder.

Section 9.6 Application of the Proceeds Following Default . The Trustee is required to deposit all amounts received by the Authority under this Article in the Debt Service Fund fo r application in accordance with Section 5.02 of the Indenture.

Section 9.7 Trustee and Bond Owners to Exercise Rights. Such rights and remedies as are given to the Authority under this Article IX are being assigned by the Authority to the Trustee under the Assignmen t Agreement, to which assignment the City hereby consents. Such rights and remedies shall be exercised by the Trustee, on behalf of the Bond Owners as provided in Article VII of the Indenture, subject to Section 9.4 hereof.

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ARTICLE X

PREPAYMENT OF LEASE PAYMENTS
Section 10.1 Security Deposit . Notwithstanding any other provision of this Facility Lease, the City may, on any date, secure the payment of any unpaid Lease Payment attributable to the Facility as set forth in Exhibit B hereto by an irrevocable deposit by it with the Trustee of cash and/or Permitted Investments of the type permitted for the defeasance of Bonds pursuant to Article X of the Indenture.

In the event that the City has secured the payment of all unpaid Lease Payments attributable to the Facility in a manner which causes the defeasance of all of the Bonds for purposes of Article X of the Indenture, and provided that the City has made arrangements acceptable to the Trustee to pay any Additional Payments due here under, all obligations of the City under this Facility Lease, and all security provided by this Facility Lease for said obligations, shall cease and terminate. In the event that the City has secured the payment of unpaid Lease Payments, in part, in a mann er which causes the defeasance of a portion of the Bonds for purposes of Article X of the Indenture, then the schedule of Lease Payments in Exhibit B shall be revised to reflect the payment schedule for the Lease Payments not prepaid, and the City shall de liver to the Trustee a report of an independent certified public accountant to the effect that the revised schedule of Lease Payments is adequate to pay the principal and interest, when due, on the Bonds that remain outstanding under the Indenture which are to be paid by the remaining Lease Payments.

Section 10.2 Extraordinary Prepayment From Net Proceeds . The City shall be obligated to prepay the Lease Payments in whole or in part on any date, from and to the extent of any Net Proceeds transferred to the Redemption A ccount pursuant to Section 5.03 of the Indenture. The City and the Authority hereby agree that such proceeds shall be credite d towards the City’s obligation to make Lease Payments hereunder such that approximately equal annual Lease Payments will prevail with respect to the Facility following such prepayment. Following such a prepayment, in part, unless this Facility Lease terminates in accordance with Section 6.1(c), the schedule of Lease Payments in Exhibit B shall be revised to reflect the payment sche dule for the Lease Payments not prepaid, and the City shall deliver to the Trustee a report of an independent certified public accountant to the effect that the revised schedule of Lease Payments is adequate to pay the principal and interest, when due, on the Bonds that remain outstanding under the Indenture which are to be paid by the remaining Lease Payments.

Section 10.3 Optional Prepayment . Subject to the terms and conditions of this Section 10.3, the Authority hereby grants an option to the City to prepay , in whol e or in part , the principal components of the Lease Payments set forth in Exhibit B hereto for the purpose of redeeming a principal amount of Bonds on the dates and at the prepayment prices provided in Section 4.01(b) of the Indenture. If the portion of the Lease Payments attributable to principal on the Bonds is prepaid in part, then the Bonds selected for redemption shall be Bonds maturing on the same dates and in the same principal amounts as the portions of the Lease Payments prepaid. The City shall execute said option by giving written notice to the Trustee thereof at least 20 days (or such shorter period as approved by the Trustee) prior to the date of redemption of Bonds from such prepayment. The City may rescind any notice of it s intention to prepay Lease Payments by delivery of written notice to the Trustee prior to the date set forth for such optional prepayment. Following a prepayment, in part, the schedule of Lease Payments in Exhibit B shall be revised to reflect the payment schedule for the Lease Payments not prepaid, and the City shall deliver to the Trustee a

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report of an independent certified public accountant to the effect that the revised schedule of Lease Payments is adequate to pay the principal and interest, when du e, on the Bonds that remain outstanding under the Indenture which are to be paid by the remaining Lease Payments.

Section 10.4 Credit for Amounts on Deposit . In the event of prepayment of the Lease Payments in full under this Article X and the payment of all due and p ayable Additional Payments, such that the Indenture shall be discharged by its terms as a result of such prepayment, all amounts then on deposit in the Reserve Fund and the Debt Service Fund held under the Indenture shall be credited toward the amounts then required to be so prepaid.

Section 10.5 Effect of Prepayment.
(a) In Whole. In the event that the City secures the prepayment of or prepays all remaining Lease Payments pursuant to this Article X and has paid all Additional Payments due hereunder, the City’s obligations under this Facility Lease shall thereupon cease and terminate. (b) In Part. In the event the City secures the prepayment of or prepays less than all of the remaining Lease Payments pursuant to this Article X, the amount of such prepayment shall be applied to reduce the remaining Lease Payments as set forth in Section 10.1, 10.2 or 10.3, as applicable.

ARTICLE XI

MISCELLANEOUS
Section 11.1 Notices. All notices, certificates or other communications required hereunder to be given to the Authority and City shall be in writing and shall be sufficiently given and shall be deemed given when delivered to the parties listed below or mailed by first class mail, postage prepaid, return receipt requested, on the third day after deposit in the U.S. Mail, to the parties listed below:

To the Authority: Montebello Public Financing Authority c/o City of Montebello
1600 W. Beverly Blvd.

Montebello, California 90640
Attention: City Manager
To the City: City of Montebello
1600 W. Beverly Blvd.

Montebello, California 90640
Attention: City Manager
To the Trustee: The Bank of New York Mellon Trust Company, N.A. 333 South Hope Street, Suite 2525
Los Angeles, CA 90071
Attention: Corporate Trust Department
Notices to the Trustee shall be given initially either telep honically or by written telecommunication or electronic mail and shall then be confirmed in writing delivered by first class mail, postage

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prepaid. The Authority, the City and the Trustee, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent.

Section 11.2 Binding Effect. This Lease shall inure to the benefit of and shall be binding upon the Authority and the City and their successors and assigns.

Section 11.3 Severability. In the event any prov ision of this Facility Lease shall be held invalid or unenforceable by a court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.

Section 11.4 Execution in Counterparts. This Lease may be executed in any number of counterparts, each of which shall be an original but all together shall constitute but one and the same instrument.

Section 11.5 Applicable Law . This Agreement shall be governed by and construed in accordance with the laws of the State.

Section 11.6 Captions. The captions or headings in this Facility Lease are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Facility Lease.

Section 11.7 No Merger. If both the Authority’s and the City’s estate under this or any other lease relating to the Facility or any portion thereof shall at any time by any reason become vested in one owner, this Facility Lease and the estate created hereby shall not be destroyed or terminated by th e doctrine of merger unless the City so elects as evidenced by recording a written declaration so stating, and, unless and until the City so elects, the City shall continue to have and enjoy all of its rights and privileges as to the separate estates.

Section 11.8 Third-Party Beneficiary. To the extent that this Facility Lease confers upon or gives or grants to the Trustee any right, remedy or claim under or by reason of this Facility Lease, the Trustee is hereby explicitly recognized as being a third -party beneficiary hereunder and may enforce any such right, remedy or claim conferred, given or granted hereunder.

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S-1
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IN WITNESS WHEREOF, the authorized representatives of the Authority and the City have caused this Facility Lease to be executed, as of the date first above written.

MONTEBELLO PUBLIC FINANCING

AUTHORITY,
a California joint exercise of powers authority
By:

Its: Executive Director
ATTEST:

Secretary

CITY OF MONTEBELLO,
a California municipal corporation
By:

Its: City Manager
ATTEST:

City Clerk

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4890-0471-4790v7/200907-0001

CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed under the foregoin g to the City of Montebello, a body corporate and politic, is hereby accepted by the undersigned officer or agent on behalf of the City Council of the City, pursuant to authority conferred by resolution of said City Council adopted on [September 28], 2022, and the grantee consents to recordation thereof by its duly authorized officer.

Dated: ______________, 2022 CITY OF MONTEBELLO
By:

Its: City Manager

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A-1
4890-0471-4790v7/200907-0001

EXHIBIT A

DESCRIPTION OF THE SITE

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B-1
4890-0471-4790v7/200907-0001

EXHIBIT B

SCHEDULE OF LEASE PAYMENTS
Date Principal Interest
Semi-Annual
Lease Payment
Annual
Lease Payment

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4890-0471-4790v7/200907-0001

A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA )
) ss.

COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public, (Print Name of Notary Public)
personally appeared

who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
________________________________ ___________________________ Title(s)
________________________________ ___________________________ Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: ________________________________ _____

Signer is representing:

Name Of Person(s) Or Entity(ies)
________________________________ ___________________________ ________________________________ ___________________________ ________________________________ ___________________________ Number Of Pages
________________________________ ___________________________ Date Of Documents
________________________________ ___________________________ Signer(s) Other Than Named Above

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28144059/204265.0002

SUBLEASE

BETWEEN

CITY OF MONTEBELLO,

A CALIFORNIA GENERAL LAW CITY

AS LANDLORD
AND

TOPGOLF USA MB, LLC,

A DELAWARE LIMITED LIABILITY COMPANY,

AS TENANT

FOR THE LEASE OF
CERTAIN REAL PROPERTY IN Montebello, California

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TABLE OF CONTENTS
[Table of Contents must be reconciled to pagination of final Sublease] Page
ARTICLE 1. ATTACHMENTS TO LEASE; EXHIBITS .........................................................1 ARTICLE 2. DEFINITIONS ......................................................................................................1

2.1 Definitions............................................................................................................ 1 ARTICLE 3. DEMISE OF PREMISES .....................................................................................6 ARTICLE 3. DEMISE OF PREMISES .....................................................................................6

3.1 Demise of Premises.............................................................................................. 6

3.2 Landlord’s Representations ................................................................................. 6

3.2 Landlord’s Title ................................................................................................... 6

3.3 Tenant’s Representations ..................................................................................... 7

3.4 Performance of Conditions Precedent ................................................................. 7

3.5 Quiet Enjoyment .................................................................................................. 8

3.6 Further Assurances and Corrective Instruments .................................................. 9 ARTICLE 4. TERM ...................................................................................................................9

4.1 Term ..................................................................................................................... 9

4.2 Options to Extend Sublease, Conversion to Lease .............................................. 9

4.3 Continued Possession of Tenant ........................................................................ 10

4.4 Certain Landlord Rights on Termination for Reletting...................................... 10 ARTICLE 5. CONSTRUCTION OF THE PROJECT .............................................................10

5.1 General ............................................................................................................... 10

5.2 General Responsibilities of the Parties .............................................................. 10

5.3 The Project ......................................................................................................... 11

5.4 Payment of Project Costs ................................................................................... 11

5.5 Administration of Project Fund ......................................................................... 11

5.6 Changes to Plans and Specifications.................................................................. 12

5.7 Approval of Subcontractors ............................................................................... 12

5.8 Compliance with Laws ...................................................................................... 12

5.9 Applicability of Landlord Requirements ........................................................... 12

5.10 Prevailing Wage ................................................................................................. 12

5.11 Tenant Attendance at City Meetings .................................................................. 12

5.12 Tenant Right to Inspection; Access to Leased Premises ................................... 13

5.13 Certificate of Occupancy as Evidence of Construction Completion ................. 13

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5.14 Location and Type of Tenant’s Signs ................................................................ 14

5.15 Financial Assistance to Tenant .......................................................................... 15

5.16 Landlord’s Cisclaimer of Warranties ................................................................. 15 ARTICLE 6. RENT ..................................................................................................................15

6.1 Payment of Rent ................................................................................................. 15

6.2 Annual Fixed Rent ............................................................................................. 15

6.3 6.3 Abatement of Improvement Rent....................................................................... 18

6.4 Rate on Overdue Payments ................................................................................ 18

6.5 No Withholding ................................................................................................. 18

6.6 Change in Ownership ......................................................................................... 18 ARTICLE 7. EXPENSES .........................................................................................................19

7.1 Intentionally Omitted ......................................................................................... 19

7.2 Common Facilities Expenses ............................................................................. 19

7.3 Real Estate Taxes ............................................................................................... 19

7.4 Tenant’s Operating Costs; Utility Payments...................................................... 20 ARTICLE 8. USE OF PREMISES ...........................................................................................20

8.1 Use ..................................................................................................................... 20

8.2 Management and Operation of the Project ........................................................ 20

8.3 Landlord Assistance ........................................................................................... 21

8.4 Tenant’s Right to Control Operations ................................................................ 21

8.5 Exclusive Right to Operate ................................................................................ 21

8.6 Landlords Maintenance of Development ........................................................... 21 ARTICLE 9. SUBLETTING AND ASSIGNING ....................................................................22

9.1 Permitted Assignments and Subleases ............................................................... 22

9.2 Tenant’s Continued Liability ............................................................................. 22

9.3 Release of Tenant and Guarantor ....................................................................... 23

9.4 Rights of Certain Subtenants ............................................................................. 23

9.5 Transfer by Landlord ......................................................................................... 23 ARTICLE 10. IMPROVEMENTS, FIXTURES AND TENANT’S PROPERTY ....................23

10.1 Improvements .................................................................................................... 23

10.2 Option to Prepay Improvement Rent ................................................................. 24

10.3 Fixtures .............................................................................................................. 24

10.4 Tenant’s Intellectual Property ............................................................................ 24

10.5 Landlord Waiver ................................................................................................ 24

10.6 Obligations Upon Expiration After Initial Fixed Term ..................................... 24 ARTICLE 11. GOVERNMENTAL COMPLIANCE ................................................................25

11.1 Tenant Responsibilities Generally ..................................................................... 25

11.2 Parties; Environmental Knowledge ................................................................... 25

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11.3 Pre-Existing Environmental Conditions ............................................................ 25

11.4 Landlord’s Environmental Responsibilities During the Term of this Lease ..... 25

11.5 Tenant’s Environmental Responsibilities .......................................................... 25

11.6 Environmental Indemnities ................................................................................ 26

ARTICLE 12. MAINTENANCE AND REPAIRS ....................................................................26

12.1 Payment for Maintenance and Repairs .............................................................. 26

12.2 Demolition ......................................................................................................... 26 ARTICLE 13. ALTERATIONS AND TENANT’S LIENS ......................................................27

13.1 Alterations .......................................................................................................... 27

13.2 No Mechanics Liens .......................................................................................... 27

13.3 Limitation on Liens During Initial Fixed Term ................................................. 27 ARTICLE 14. DAMAGE CLAUSE ..........................................................................................28

14.1 Damage .............................................................................................................. 28

14.2 Right to Terminate on Certain Damage ............................................................. 28

14.3 Bond Terms; Site Lease and Facility Lease to Control ..................................... 29 ARTICLE 15. CONDEMNATION ............................................................................................29

15.1 Taking During Initial Fixed Term...................................................................... 29

15.2 Taking During Any Option Period(s) 29

15.3 No Taking by Landlord Action .......................................................................... 30 ARTICLE 16. INSURANCE, INDEMNITY, WAIVER OF SUBROGATION AND FIRE PROTECTION ..........................................................................................30

16.1 Tenant Indemnity ............................................................................................... 30

16.2 Tenant Insurance ................................................................................................ 30

16.3 Payment of Insurance Proceeds ......................................................................... 34

16.4 Cooperation ........................................................................................................ 34

16.5 Liability Insurance; Landlord Gross Negligence ............................................... 34

16.6 Waiver of Subrogation ....................................................................................... 34 ARTICLE 17. LEASEHOLD MORTGAGES ...........................................................................35

17.1 Rights to Mortgage Lease .................................................................................. 35

17.2 Requirements ..................................................................................................... 35 ARTICLE 18. TENANT COVENANTS AGAINST DISCRIMINATION ..............................36

18.1 Obligation to Refrain from Discrimination........................................................ 36

18.2 Form of Non-Discrimination and Non-Segregation Clauses ............................. 37 ARTICLE 19. ESTOPPEL; ATTORNMENT AND SUBORDINATION ................................39

19.1 Estoppel Certificate ............................................................................................ 39

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19.2 Attornment by Tenant ........................................................................................ 39

19.3 Subordination/Non-Disturbance ........................................................................ 39 ARTICLE 20. DEFAULT AND REMEDIES ............................................................................39

20.1 Tenant Default; Cure Rights; Landlord’s Remedies .......................................... 39

20.2 Landlord Default; Cure Rights........................................................................... 40 ARTICLE 21. MISCELLANEOUS ...........................................................................................41

21.1 Lease Not to be Recorded .................................................................................. 41

21.2 Notices ............................................................................................................... 41

21.3 Waiver of Performance and Disputes ................................................................ 42

21.4 Modification of Lease ........................................................................................ 42

21.5 Lease Binding on Successors and Assigns, etc. ................................................. 42

21.6 Brokers ............................................................................................................... 42

21.7 Governing Law .................................................................................................. 42

21.8 Estoppel.............................................................................................................. 42

21.9 Severability ........................................................................................................ 43

21.10 Landlord and Tenant .......................................................................................... 43

21.11 Authority ............................................................................................................ 43

21.12 Time is of the Essence ....................................................................................... 43

21.13 Consent .............................................................................................................. 43

21.14 Attorneys’ Fees .................................................................................................. 43

21.15 Entire Agreement ............................................................................................... 43

21.16 Counterparts ....................................................................................................... 43

21.17 Rules of Construction ........................................................................................ 44

21.18 Prohibited Persons ............................................................................................. 44

21.19 Ongoing Access and Inspection Rights ............................................................. 44

21.20 Unavoidable Delay............................................................................................. 44

21.21 Guaranty ............................................................................................................. 45

21.22 No Publicity; Confidentiality ............................................................................. 45

21.23 Waiver of Trial By Jury ..................................................................................... 46

21.24 Public Benefit..................................................................................................... 46

21.25 Defense of Actions ............................................................................................. 46

21.26 Processing .......................................................................................................... 47

21.27 Other Governmental Permits ............................................................................. 47

21.28 Full Disclosure ................................................................................................... 47

21.29 Required Actions of Parties: Further Assurances .............................................. 47

21.30 Conflict of Interest ............................................................................................. 47

21.31 Non-liability of Landlord, Officers, Employees ................................................ 47

21.32 Constructive Notice and Acceptance ................................................................. 48

21.33 No Third-Party Beneficiaries ............................................................................. 48

21.34 Incorporation of Exhibits ................................................................................... 48

21.35 Survival .............................................................................................................. 48

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1 28144059/204265.0002

SUBLEASE
THIS SUBLEASE (the “Lease”), dated as of September ____, 2022 (the “Effective Date”), is made by and between CITY OF MONTEBELLO, a California general law city (“ Landlord”), and TOPGOLF USA MB, LLC, a Delaware limited liability company (“Tenant”), and supersedes that certain Sublessee Development and Participation Agreement (“Development Agreement”) by and between Landlord and Tenant dated as of March 24, 2021. At times herein Landlord and Tenant are referred to individually as a “Party” and jointly as the “Parties.” Article 1.

ATTACHMENTS TO LEASE; EXHIBITS
Attached to this Lease and hereby made a part hereof are the following:

EXHIBIT A – a site plan and legal description of the tract of land constituting the “Leased Premises”
EXHIBIT A-1 – Plans and Specifications
EXHIBIT B – Site plan and legal description of the tract of land constituting the “Development”
EXHIBIT C – Construction Budget for the Project approved by the Parties EXHIBIT D – Material Terms of Development Declaration
EXHIBIT E – Common Facilities
EXHIBIT F – Memorandum of Lease
EXHIBIT G – Memorandum of Term Commencement
EXHIBIT H – Guaranty
EXHIBIT I – Tenant’s Property
EXHIBIT J – Scope of Work
EXHIBIT K - Construction Schedule
EXHIBIT L – Base Rent Payment Schedule
EXHIBIT M – Improvement Rent Payment Schedule
Article 2.

DEFINITIONS

2.1 Definitions.
(a) For purposes of this Lease, the following terms shall have the meanings provided in the Section noted opposite such terms:

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Defined Term Section Reference
Annual Fixed Rent 6.2
Bonds 3.4(f)
Bond Leases 3.4(g)
Certificate of Occupancy 16.2
CEQA 3.4(c)
City Requirements 5.9
Commencement Date 4.1
Confidential Information 21.22
Construction Term 4.1
Effective Date Preamble
Facility Lease 3.4(g)
Indemnified Party 11.6
Indemnifying Party 11.6
Indenture 3.4(h)
Initial Fixed Term 4.1
Intended Use 8.1
Landlord Preamble
Landlord Indemnified Parties 16.2
Lease Preamble
Leasehold Mortgage 17.1
Leasehold Mortgagee 17.1
Licensee 3.4(d)
License Agreement 3.4(d)
M&D Account 7.1
MND 3.4(c)
Notices 21.2
Option Periods 4.2
Permitted Transferee 9.1
Personal Covenant 17.2(f)
Pre-existing Environmental Conditions 11.3
Prime Contractor 3.4(j)
Prohibited Persons 21.18
Project Bids 5.7
Project Costs 5.4
Project Fund 5.4(h)
Public Disclosure Laws 21.22
Site Lease 3.4(g)
SNDA 19.3
Sub-contractors 5.7
Tenant Preamble
Tenant’s IP 10.3
Tenant’s Standards 5.2(b)
Tenant’s Parent 9.1(c)
Tenant’s Property 10.2
Unavoidable Delay 21.20

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Used 11.4
(b) For purposes of this Lease, the following terms shall have the meanings specified below:
“Additional Insureds ” means Landlord and any Landlord’s agencies as their interests appear.
“Affiliate” means as applied to a person or entity, any other person or entity that is directly and wholly controlled by, or under common control with, that person or entity. “Authority” means the Montebello Public Financing Authority, a California joint powers authority duly and lawfully created and operating pursuant to California law. “Business Day” shall mean a calendar days other than a Saturday, Sunday, and day on which banking institutions in the City of New York, New York are authorized by law to close. “City” means the City of Montebello.
“City Council” means the City Council of the City of Montebello. “Claims” means all claims, actions, suits, judgments, decrees, orders, liabilities, costs and expenses (including reasonable attorneys’ fees).
“Common Facilities ” includes, to the extent applicable, al l parking areas, streets, driveways, curb cuts, access facilities, aisles, sidewalks, landscaped areas, sanitary and storm sewer lines, storm water detention facilities, water, gas, electric, telephone and other utility lines, systems, conduits and facilities and other common and service areas within the Development and serving or benefiting the Leased Premises but located outside of the Leased Premises, as such Common Facilities are more specifically described in Exhibit E. “Common Facilities Expense ” means to the extent covered by or levied under the Development Declaration, all expenses, fees, assessments and costs in connection with operating, maintaining, repairing, insuring, lighting, protecting and securing the Common Facilities. “Conditional Use Permit” means the conditional use permit approved by Resolution No. 06-22 of the Planning Commission pursuant to Chapter 17.70 of the Montebello Municipal Code, allowing Tenant to engage in alcohol sales, construction and operation of a driving range, and the Planned Sign Program on the Premises.
“Construction Budget ” means the detailed and comprehensive construction budget and schedule for the Project described in the Plans and Specifications as set forth in the Construction Budget attached hereto as Exhibit C.
“Construction Schedule” means the detailed and comprehensive schedule for the Project attached hereto as Exhibit “K”.
“Default Rate” means the lesser of (i) the per annum interest rate from time to time publicly announced by Citibank, N.A., New York, New York as its base rate (i.e., its Prime Rate) plus four percent (4%) or (ii) the highest rate of interest that may lawfully be charged to the party then

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required to pay interest under this Lease at the Default Rate. If Citibank, N.A. should cease to publicly announce its base rate, the Prime Rate hereunder shall be the prime, base or reference rate of the largest bank (based on assets) in the United States which announces such rate.] “Development” means the larger tract of land described on Exhibit B where the Project will be located, together with any buildings, Common Facilities and other improvements thereon, as the Development is constituted from time to time.
“Development Declaration” means a declaration with regard to the Development negotiated by Landlord and Tenant, which shall include those items identifi ed on Exhibit D attached hereto.
“Environmental Law” means any applicable Laws relating to the environment, human health, or natural resources, regulating, controlling, or imposing liability or standards of conduct concerning any Hazardous Substance, or requiring notification or disclosure of releases of Hazardous Substance or of the existence of any environmental conditions on or at the Leased Premises.
“Fiscal Tax Year ” means the t welve (12) month period commencing July 1 and ending June 30 of each calendar year, as established as the real estate tax year by the taxing authority having jurisdiction over the Development.
“Governmental Authorities ” means all federal, state, county, municipal and local departments, commissions, boards, bureaus, agencies and offices thereof, having or claiming jurisdiction over all or any part of the Development (if applicable) or the Project or the use thereof. “Government Requirements” means any and all applicable federal, state, or local laws or regulations of a governmental agency applicable to this Lease, the Leased Premises, or the Project, and any and all necessary permits, approvals, or authorizations necessar y to develop and operate the Leased Premises with the Project as contemplated in this Lease, including without limitation the City Requirements.
“Hazardous Substances” means all materials and substances (including petroleum -based substances) that are defin ed as a “hazardous waste,” “hazardous chemical,” “toxic substance,” “hazardous material,” “hazardous substance,” or any term of similar meaning under any Law. “Improvements” means the Project and any other buildings, structures, parking facilities, or other improvements from time to time constructed on the Leased Premises. “Laws” means all present and future requirements, administrative and judicial orders, laws, statutes, ordinances, rules and regulations of any Governmental Authority. “Lease Year” means a period of twelve (12) full calendar months. The first Lease Year shall begin on the first day of the calendar month following the Commencement Date, unless the Term commences on the first day of a calendar month, in which case the first Lease Year shall begin on the Commencement Date. Each succeeding Lease Year shall commence on the anniversary of the first Lease Year.
“Leased Premises” or “Premises” means the land described on Exhibit A attached hereto, and all appurtenances, rights, easements and privileges thereunto belonging or in any way

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appertaining, and all other rights, easements and privileges granted to Tenant in this Lease, excluding, however, all other items of Tenant’s Property and Tenant’s IP, as defined in Article 10 below. The Project shall be owned by the Authority during the Initial Fixed Term and is included in the Leased Premises during the Initial Fixed Term, but upon expiration of the Initial Fixed Term and subject to full repayment of the Bonds, the Project shall be excluded from the Leased Premises as described further in Section 10.1(a) hereof.
“Mortgage” means any mortgage or deed of trust or other instrument in the nature thereof evidencing a security interest in the Leased Premises or any part thereof. “Planning Commission” means the Planning Commission of the City of Montebello. “Planning Approvals ” means Landlord’s approval of a Conditional Use Permit and Planned Sign Program for the Project.
“Planned Sign Progr am” means and refers to the planned sign program approved by Resolution No. 06 -22 of the Planning Commission pursuant to under Section 17.62.140 of the Montebello Municipal Code to permit permanent signage as part of the Project. “Plans and Specifications ” means plans and specifications for the Project included in Exhibit A-1, which are approved by the Parties by way of this Lease. “Project” means and refers to a Topgolf -branded commercial driving range, full -service restaurant, clubhouse, event space, and associated golf amenities to be located on the Leased Premises and operated and managed by Tenant as “TopGolf Montebello,” as specifically described in the Plans and Specifications and to include, among other things: a three(3) -story driving range complex / structure with approximately 102 hitting bays; restaurant and entertainment amenities; outdoor seating / patio areas; a parking lot; and the Common Facilities, including a driveway that provides access the Leased Premises from Via San Clemente. The Project shall be of at least equal quality and of substantially similar scale, architecture, stylings, interiors, quality, technology, and nature to all three (3)-story properties in the “Topgolf" portfolio. “Project Agreements” means this Lease and any other agreements entered into by agreement of the Parties with Landlord, with contractors in connection with the Project, or with the Authority.
“Project Approvals ” means the Planning Approvals, the Plans and Specifications, the Construction Budget, the Construc tion Schedule, this Lease, the Bond Leases, the Bonds, the Indenture, the Project Bids, and the Project Contracts. “Project Contracts ” m eans contracts entered into between the Landlord and the Prime Contractor and any contracts between the Prime Contract or and any Sub -contractors for construction of the Project.
“Rent” means Annual Fixed Rent and any other charges, expenses or amounts payable by Tenant under this Lease as described further in Article 6. “Taxes” means all ad valorem taxes, possessory interes t taxes, assessments, and governmental charges, general or special, which are levied on or charged against the Leased Premises, the Project, Tenant’s Property, personal property or rents, or on the right or privilege of

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leasing real estate or collecting rents thereon, and any tax assessment or governmental charge imposed in lieu of any such tax, assessment or governmental charge, including without limitation all special assessments, impact fees, development fees, traffic generation fees, parking fees in respect of any Fiscal Tax Year, excluding, however, any income, franchise, corporate, capital levy, capital stock, excess profits, transfer, revenue, estate, inheritance, gift, devolution or succession tax payable by Landlord or any other tax, assessment, c harge or levy upon the Rent payable hereunder by Tenant, except to the extent any such tax, assessment, charge or levy is imposed in substitution for any ad valorem tax or assessment.
“Taxes Applicable to Leased Premises ” means all Taxes levied against the land and improvements within the Leased Premises or on the business or use operated on the Leased Premises during any Fiscal Tax Year, or created or levied against the interest created by this Lease, Tenant’s Property, Tenant’s operation and use of the Pr emises, or profits or income generated by a business or use operated on the Premises , including but not limited to sales or use taxes or any taxable possessory interest taxes resulting from Tenant’s interest in the Leased Premises. “Tenant’s Pro Rata Share ” means a fraction, the numerator of which is the total square footage of building improvements within the Leased Premises, and the denominator of which is the total square footage of building improvements within the land area subject to the Development Declaration.
“Term” and “Term of this Lease ” means the Initial Fixed Term and any renewal or extension thereof as described in Article 4.

Article 3.

DEMISE OF PREMISES

3.1 Demise of Premises . Landlord hereby demises and leases the Leased Premises unto Tenant, and Tenant hereby leases the same from Landlord, for the consideration and upon the terms and conditions set forth in this Lease.

3.2 Landlord’s Representations . As a material inducement to Tenan t entering into this Lease, Landlord represents and warrants to Tenant that: (1) Landlord is a California municipal corporation, duly formed and operating under the laws of the State of California; (2) Landlord has full right and lawful authority to enter into and perform Landlord’s obligations under this Lease; (3) the person(s) executing this Lease and any related instruments for or on behalf of the Landlord have been authorized to act on behalf of the Landlord, and this Lease is valid and enforceable against Landlord in accordance with its terms and each instrument to be executed by Landlord pursuant hereto or in connection therewith shall be, when executed, valid and enforceable against Landlord in accordance with its terms; (4) Landlord has good and mar ketable fee simple title to the Leased Premises subject only to the Bond Leases and any other matters of record existing on title as of the Commencement Date; and (5) except for the Bond Leases and any other matters of record existing on title as of the Commencement Date, Tenant’s rights under this Lease shall not be subject or subordinate to any Mortgage except for such subordination as may be accomplished in accordance with the provisions of Article 2 1. If Landlord becomes aware of any act or circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by Landlord in this section, whether as of the date given or any time thereafter,

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whether or not such representation or warranty was based upon Landlord’s kn owledge and/or belief as of a certain date, Landlord will give immediate written notice of such changed fact or circumstance to Tenant.

3.3 Tenant’s Representations. As a material inducement to Landlord entering into this Lease, Tenant represents and warrants to Landlord that: ( 1) Tenant is a Delaware limited liability company, lawfully entitled to do business in the State of California and the City of Montebello, California; ( 2) Tenant has full right and lawful authority to enter into and perform Tenant’s obligations under this Lease; and (3) the person(s) executing this Lease and any related instruments for or on behalf of the Tenant have been authorized to act on behalf of the Tenant, and this Lease is valid and enforceable against Tenant in accordance with its terms and each instrument to be executed by Tenant pursuant hereto or in connection therewith shall be, when executed, valid and enforceable against Landlord in accordance with its terms; and (4) as of the Effective Date, Tenant and/or its affiliates operate more than seventy (70) branded sports / entertainment venues and have an operating history of over fifteen (15) years.

3.4 Performance of Conditions Precedent. In furtherance of and as conditions precedent to this Lease, the Parties have taken various actions that, as of or contemporaneously with the Effective Date of this Lease, the Parties acknowledge have been duly performed to each Party’s satisfaction:
(a) The Planning Commission has reviewed and made a determination that this Lease is consistent with the Montebello General Plan, pursuant to Government Code § 65402;
(b) The Planning Commission has reviewed, held a duly noticed public hearing on, and approved the Planning Approvals for the Project, in accordance with the requirements for Title 17 of the Montebello Municipal Code, and all permits, requirements, or approvals of applicable Government Requirements needed to commence development , construction, and operation of the Project have been duly issued or performed, with only exception being issuance of a building permit from the City; (c) The Landlord has analyzed the reasonably foreseeable environmental impacts of the Project pursuant to the requirements of the California Environmental Quality Act (“CEQA”) by way of that certain “Initial Study and Mitigated Neg ative Declaration for the Montebello Golf Couse Driving Range Relocation P roject,” dated December 12, 2019 (the “MND”). The MND concluded that, with mitigation, the Project would not result in any significant negative impacts to the environment, and the MND was approved by way of Planning Commission Resolution No. 6 -22in the manner required by CEQA, and the period for filing a legal challenge to the MND has now expired. (d) Landlord has provided satisfactory evidence to Tenant of an agreement between Landlord and the licensee (“Licensee”) under that certain License Agreement for food and beverage rights on the Property, dated August 15, 1978 (as amended from time to time, the “ License Agreement”), pursuant to which the Licensee has agreed to release the Leased Premises from the scope of the License Agreement for the Term of this Lease, and has approved of the Leased Premises being independently developed and operated by Landlord and Tenant as contemplated herein for the Term of this Lease.

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(e) By way of this Lease, both Parties hereby approve of the Construction Budget, Construction Schedule, Plans and Specifications, and Project Contracts for the Project.
(f) The Authority and Landlord have approved the issuance of lease -revenue bonds under authority of the Marks Roos Bond Law, with net proceeds (after payment of the cost of issuance) totaling $ [TO BE DETERMINED] which shall to be used to finance the cost of the design and cons truction of the Project in compliance with the Plans and Specifications (the “Bonds”), which Bonds have an amortization term of twenty (20) years that shall be concurrent with the Initial Fixed Term.
(g) The Authority and Landlord have approved and entered in to such other agreements and instruments necessary to issue and secure debt service on the Bonds, including: (1) a “ Site Lease ” by which the Landlord has originally leased the Leased Premises to the Authority; and (2) a “ Facility Lease” by which the Author ity has leased- back the Leased Premises to the Landlord for purposes of constructing and operating the Project on the Leased Premises, which governs the Landlord’s use and possession of the Project and pursuant to which the Landlord has agreed to make the “Lease Payments” as defined in the Facility Lease in amounts and at times sufficient to enable the Authority to pay scheduled principal and interest payments on the Bonds . The Site Lease and Facility Lease are jointly referred to herein as the “Bond Leases.” (h) The Authority has approved an “Indenture” with the trustee for the Bonds (the “Trustee”), and concurrently with issuance of the Bonds , the Authority will deposit net proceeds of the Bonds in the “Construction Fund” held by the Trustee and governed by the Indenture, with such account functioning as a construction fund from which design and construction costs will be paid on the terms and conditions specified by the Indenture (e.g. upon the receipt of qualifying invoices, certifica tions, and lien releases) (the “ Project Fund”).
(i) The City Council has conducted a duly noticed public hearing and satisfied the disclosure requirements associated with “economic development subsidies” required by Government Code section 52201.
(j) Landlord has approved McCarthy Building Companies, Inc. as the prime contractor for the construction and development of the Project (“Prime Contractor”), and has entered into a guaranteed maximum price construction contract with the Prime Contractor for the turnkey construction of the Project as described in the Plans and Specifications, and both Landlord and Tenant approve of the form and content of the Project Contracts.
(k) Tenant has completed all such investigations, reviews, inspections, due diligence, surveys, and/or other analysis or studies deemed necessary by Tenant to satisfy Tenant that the Property and Leased Premises satisfies Tenant’s needs and expectations for development and operation of the Project.

3.5 Quiet Enjoyment . Landlord covenants that, if Tenant fully performs its obligations herein, Tenant shall have and enjoy, upon the Commencement Date and during the Term of this Lease, the quiet and undisturbed possession of the Leased Pre mises free from interference by

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Landlord or any party claiming by, through or under Landlord, together with the right to non- exclusive use of the Common Facilities on the terms and conditions set forth in this Lease.

3.6 Further Assurances and Corrective Instruments. Landlord and the City shall execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Leased Premises hereby leased or intended to be leased or for carrying out the expressed intention of this Project.

Article 4.

TERM

4.1 Term. The term of this Lease shall commence on the Effective Date and shall remain in full force and effect for the combined duration of the “Construction Term” and “Initial Fixed Term,” plus any subsequent “Option Period(s)”; each as defined in this Section. If construction of the Project has been completed such that Tenant can open the Project for business prior to the end of the Construction Term, as evidenced by a certificate of occupancy issued by the City, Tenant may commence and continue operations under this Lease for the remainder of the Construction Term.
(a) Construction Term. The Construction Term of this Lease shall commence on the Effective Date and shall expire the date that is no later than fifteen (15) months after the delivery date for the Bonds (the “Construction Term”). (b) Initial Fixed Term. The initial term of Tenant’s occupancy of the Leased Premises under this Lease (the “Initial Fixed Term”) shall commence upon the end of the Construction Term (the “ Commencement Date”) and shall expire twenty (20) years from the expiration of the Construction Term. Upon the Commencement Date, Tenant shall promptly execute and deliver to Landlord a Memorandum of Term Commencement in the form attached hereto as Exhibit G.
(c) The Parties acknowledge that t he term of the Facility Lease will expire on the earlier of (a) the expiration date of the Initial Fixed Term, or (b) upon full payment and retiring of the Bonds. Within ninety (90) days following expiration of the Facility Lease or written request delivered to the Landlord by Tenant, whichever occurs later, Landlord shall take such steps as may be necessary (i) to cause an agreement or certificate terminating the Bond Leases to be recorded in the Official Record of Los Angeles County, California, (ii) for the Authority to issue an estoppel certificate in favor of Landlord and Tenant under the Facility Lease., and deliver the same to Tenant , confirming the termination of the Bond Leases, (iii) for Landlord to issue an estoppel certificate in favor of Tenant under this Lease, and deliver the same to Tenant confirming the termination of the Bond Leases and the continued effectiveness of this Sublease as a lease between the Landlord, as lessor, and the Tenant, as lessee, and (iv) to secure such other agreements and documents as Tenant may reasonably request to confirm the expiration of the Bond Leases. In that event, Landlord and Tenant shall also reasonably consider amendments to this Lease as may be necessary to account for expiration of the Bond Leases and full payment and retiring of the Bonds.

Included, without limitation, in the provisions of this Lease that will be considered for amendment are Sections 6.2, 10.2, 13.3, 14.1(a), 14.3, 15.1 and Article 16.

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4.2 Options to Extend Sublease; Conversion to Lease. Provided Tenant is not in default under this Lease past any applicable notice and cure period, Tenant shall have the right to extend the Term of this Lease for thirteen (13) successive periods of five (5) years each (the “ Option Periods”) from the date upon which the Initial Fixed Term actually expires upon the ter ms and conditions as those herein specified, such that the total term of this Lease shall not exceed eighty- five (85) years unless a shorter aggregate term is required by law. If Tenant elects to exercise its option for any Option Period, it shall do so b y giving Landlord written notice of such election at least six (6) months before the scheduled termination of the Initial Fixed Term or applicable Option Period. If Tenant gives such notice, the Term of this Lease shall be automatically extended for the relevant Option Period without execution of an extension or renewal lease. Failure to extend this Lease for any Option Period shall constitute a waiver of any subsequent Option Periods. In the event Tenant exercises its option to extend this Lease beyond t he Initial Fixed Term, then upon commencement of the first Option Period and subject to termination or expiration of the Facility Lease, this Lease shall automatically replace and supersede the Bond Lease s and become the primary ground lease on the Propert y. The Parties shall cooperate in the preparation and/or recording of such documents as may be necessary to effectuate the foregoing sentence.

4.3 Continued Possession of Tenant . Any holding over after the last day of any Option Period or the Initial Fixed Term hereof (if this Lease is not extended), shall be construed to be a month-to-month tenancy, on the terms herein set forth, terminable by either party on not less than sixty (60) days’ notice, with the exception that Annual Fixed Rent (described below) shall be increased to one hundred ten percent (110%) of the Annual Fixed Rent that existed for the Lease Year prior to the expiration of the last effective Term. Tenant shall have sixty (60) days after such notice of termination by either party within which to remove Tenant’s Property, and any of Tenant’s Property not so removed may be stored or destroyed by Landlord at Tenant’s expense.

The provisions of this Section 4.3 shall survive the expiration or the earlier termination of this Lease.

4.4 Certain Landlord Rights on Termination for Reletting. If Tenant has not exercised the applicable Option Peri od option to extend this Lease, then Landlord or its agent shall thereafter have the right to enter the Leased Premises at all reasonable times with prior notice to Tenant for the purpose of exhibiting the Leased Premises to others and to place upon the Le ased Premises during the period commencing one hundred twenty (120) days prior to the expiration of the then current Term “for sale” or “for rent” notices or signs of such number and in such locations as Tenant reasonably approves.

Article 5.

CONSTRUCTION OF THE PROJECT

5.1 General. Immediately upon the Effective Date of this Lease and for the duration of the Construction Term and until issuance of a final Certificate of Occupancy, whichever last occurs, the Parties shall diligently and without interruption proceed with the design, development, construction, and opening of the Project in compliance with this Article. The Landlord and Tenant anticipate that construction of the Project will be substantially completed in accordance with the Plans and Specifications.

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5.2 General Responsibilities of the Parties.
(a) Landlord. Landlord’s general role and responsibility during the Construction Term of this Lease include , without limitation: (1) serving as manager and administrator of the Project Fund for the payment of Project subject to and in compliance with the Indenture and Project Approvals; (2) serving as the contracting party and “owner” of the Project for purposes of the Project Contract s; (3) managing, coordinating, and advising on day to day construction activities based on regular consultation with Tenan t and coordination of general contractors and sub-contractors, and serving as or contracting for professional construction manager services, the identity of such construction manager to be subject to the reasonable approval of Tenant; (4) serving as “Lessor” under the Site Lease, “Lessee” under the Facility Lease, and as “Landlord” under this Lease; (5) constructing a driveway adjacent to and south of the Project that provides access to Via San Clemente (“Driveway”); and (6) in its dual capacity as a local governmental agency, serving as the regulatory permitting agency with jurisdiction over the Project. (b) Tenant. Tenant’s general roles and responsibilities during the Construction Term of this Lease include , without limitation : (1) actively overseeing, participating in, consulting with Landlord and other interested or contracted parties on all aspects of the design and construction of the Project , recognizing that the Project is a branded Topgolf facility and that Tenant is the authority regarding such matters; (2) providing professional and proprietary consulting and construction management services in connection with the design and construction of the Project to ensure compliance with the Plans and Specifications and Tenant’s proprietary standards and certifications that are associated with a standard Topgolf facility in the United States (“Tenant’s Standards”); and (3) serving as “Lessee” and occupant / operator of the Leased Premises under this Lease.

5.3 The Project. The Project shall be developed and constructed by the Prime Contractor in strict compliance with the Plans and Specifications, the Project Contract, and other Project Approvals, subject to change orders approved by the Parties pursuant to Section 5.6. The Parties shall regularly communicate and cooperatively work in good faith to timely complete construction and opening of the Project in strict accordance with the Project Approvals, and each Party shall duly and regularly perform such incidental and associated actions that are reasonably necessary to complete construction and commence operating the Project as set forth herein. At regular or scheduled intervals during the Construction Term as may be requested by a Party, the Parties shall meet and exchange regular updates on the progress of construction activities.

5.4 Payment of Project Costs. Subject to the requirements and limitations of the Indenture and the maximum proceeds of the Bonds available funds in the Project Fund , any and all costs associated with the planning, design, and construction of the Project pursuant with the Plans and Specifications (“ Project Costs ”) shall be paid from the Project Fund (e.g. net pr oceeds of the Bonds); provided that any such costs not included in total Construction Budget or that are in excess of the Project Funds shall be the sole and exclusive responsibility of and shall be paid for by Tenant. Without limiting the foregoing, but expressly subject to the payment priorities specified in the Indenture and the availability of Project Funds, and without any right to reimbursement from the Authority and City other than from available Project Funds, Tenant shall be reimbursed for planning, design, engineering, and pre-development costs incurred by Tenant in furtherance of the

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Project, regardless of whether such costs were incurred or paid prior to or after the Effective Date of this Lease.

5.5 Administration of Project Fund . The terms and conditions of the Indenture and the Project Contracts shall govern the process by which funds are distributed and allocated from the Project Fund for the payment of Project Costs; provided that in addition, Tenant shall have the right to review and approve the payment of Project Cos ts from the Project Fund before payment is made by Landlord. In the event of a dispute between Landlord and Tenant as to whether any specific Project Cost should be paid from the Project Fund, the Parties may agree to mediate the dispute, provided that the pendency of any dispute shall not result in a delay in construction or failure to complete the Project.

5.6 Changes to Plans and Specifications. Subject to the Indenture , Bond Leases, and Project Contracts, Landlord and Tenant may, upon mutual agreement, make modifications, alternations, or deviations be made to the Plans or Specifications so long as the proposed change does not result in a material reduction in the quality of the prod uct or Project. Any such changes shall be documented in a writing signed by the Landlord, Tenant, and Prime Contractor or applicable Sub-contractor, and comply with applicable terms, conditions, and procedures of the applicable Project Contract (s). Subject to the terms and conditions of t he Indenture, added or increased Project Costs associated with modifications, alternations, or deviations from the Plans and Specifications may be paid from the Project Fund to the extent available, or at Tenant’s option by Tenant. The value of any modifications, alternations, or deviations to the Plans and Specifications that reduce Project Costs may be reallocated to other Project Costs or remain in the Project Fund at the discretion or Tenant.

5.7 Approval of Subcontractors . The Prime Contractor shall solicit competitive bids (“Project Bids”) from qualified sub-contractors and/or construction professionals for construction and development of the Project (“ Sub-contractors”) subj ect to applicable Laws; provided, however, that Project Bids shall not be required where Tenant reasonably determines that the scope of work of such Subcontractor is specialized or the means of performing the work is proprietary making sole source procurement permissible by the Laws . Notwithstanding any provision of this Lease to the contrary but subject to applicable Laws, Tenant may, in its sole discretion, deem a proposed Subcontractor not responsible and/or incapable of adequ ately performing construction work on the Project.

5.8 Compliance with Laws . All construction work performed in connection with development and construction of the Project shall comply with all the Plans and Specifications, Tenant’s Standards, and applicable Government Requirements.

5.9 Applicability of Landlord Requirements . Landlord’s zoning, building and land use regulations (whether contained in ordinances, Landlord’s municipal code, conditions of approval, policies, practice or elsewhere) (collectively, the “City Requirements”), shall be applicable to the use and development of the Leased Premises . No action by Landlord with reference to this Lease or any related documents shall be deemed to constitute a waiver of any City Requirements regarding the Leased Premises, the Project, or any Improvements with respect to Tenant or any successor-in-interest to Tenant’s interests.

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5.10 Prevailing Wage. As required by California Labor Code Sections 1770, et seq., the Parties shall ensure that the Prime Contractor and any Sub-contractors pay workers on the Project not less that the prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations as applied to the given worker’s trade or specialty. The Prime Contractor and any Sub-contractors performing construction work on the Project shall comply with all applicable requirements of the California Labor Code Sections 1770, et seq., and the regulations promulgated by the Department of Industrial Relations.

5.11 Tenant Attendance at City Meetings. During the Construction Term, Tenant shall have one or more of its employees or consultants who are knowledgeable regarding this Lease and the Plans and Specifications in attendance at all scheduled construction meetings attended by the Landlord or as required by the Prime Contractor, such th at such person(s) can meaningfully respond to the Landlord’s or Prime Contractor’s questions regarding the progress of the Project; and further, when requested to do so on not less than ten (10) days prior written notice by City staff, Tenant shall have one or more of its knowledgeable consultants or employees in attendance at City Council meetings.

5.12 Tenant Right to Inspection; Access to Leased Premises. During the Construction Term, Tenant and its, officers, employees, agents and representatives shall have the right of access to the Leased Premises, without the payment of charges or fees and during normal construction hours, for purposes of inspecting and ensuring compliance with the Project Approvals , Tenant’s Standards, and applicable Government Requirements. Such officers, employees, agents, consultants, or representatives of Tenant shall be those persons who are designated in written by Tenant to Landlord from time to time. Any an d all officers, employees, agents or representatives of Tenant shall, upon their entrance on to the Leased Premises, identify themselves at the construction management office. Tenant shall indemnify and hold Landlord harmless from injury, property damage or liability arising out of the exercise by Tenant of the right of access provided in this section, other than injury, property damage or liability arising from the gross negligence or willful misconduct of Landlord or its officers, agents or employees . Landlord acknowledges and agrees that any such inspections are for the purposes of inspecting and monitoring for compliance with the Project Approvals, Tenant’s Standards, and applicable Government Requirements, and that Landlord shall not be entitled to rely on any such inspection(s) as constituting an approval, satisfaction or acceptance of any materials, workmanship, conformity of the Project with this Lease or otherwise. Tenant agrees to make its own regular inspections of the work of construction of the Project to determine that the quality of the Project and all other requirements of the work of construction of the Project are being performed in a manner satisfactory to Tenant. The Tenant also agrees to immediately notify Landlord in writing should t he Tenant’s inspections show any matters that will prevent the entire Project from being completed by the Project completion date set forth therefore in the Construction Schedule. Without limiting the foregoing, each Party shall permit the other Party upon reasonable notice to examine and copy all books and account records and other papers relating to the Leased Premises and the construction of the Project that are not confidential or privileged. Both Parties will use commercially reasonable efforts to cau se all contractors, subcontractors and materialmen to cooperate with the other Party to enable such examination.

5.13 Certificate of Occupancy as Evidence of Construction Completion . Completion of construction of the Project shall be signified by the Landlord’s issuance of a final Certificate of

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Occupancy for the Project as required by the Indenture and City Requirements , and Tenant’s issuance of a written certification that t he Project satisfies Tenant’s Standards. Upon written request from Tenant for issuance of a final Certificate of Occupancy, Landlord shall inspect the Project to determine whether or not the Project has been substantially completed in compliance with this Lease and the Plans and Specifications; and upon written request from Landlord for issuance of certification of compliance with Tenant’s Standards, Tenant shall inspect the Project to determine whether or not the Project has been substantially completed i n compliance with the same. If Landlord determines that the Project is complete and in compliance with the Plans and Specifications, Landlord shall furnish Tenant with a final Certificate of Occupancy for the Project; and Tenant shall issue a certification of compliance if it determines the Project is complete and complies with Tenant’s Standards. If either Party determines that the Project is not in compliance with this Lease, the Plans and Specifications or Tenant’s Standards, as applicable, the applicable Party shall send written notice of each non-conformity to the Prime Contractor and the other Party. (a) The final Certificate of Occupancy and certificate of compliance, upon issuance, shall be evidence of the Parties’ conclusive determination of sa tisfactory substantial completion of the entirety of the Project pursuant to the Project Approvals and Tenant’s Standards.
(b) Neither Party shall not unreasonably withhold the issuance of their final certification of the Project being complete. After the issuance of a final certificate by both Parties, any person then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Leased Premises improved with the Project shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Lease regarding construction of the Project, except that such person shall be bound by any continuing reservations, covenants, conditions, restrictions and other matters set forth in this Lease.
(c) If either Party fails or refuses to issue a final certificate following written request from the other Party, the Party refusing Party shall, within fifteen (15) calendar days of a Party’s written request , or if City, within three (3) calendar days after the next regular meeting of the City Council, whichever date occurs later, provide the other Party with a written statement setting forth the reasons for the Party’s failure or refusal to issue a final certificate. The statement shall also contain the Party’s opinion of the action(s) that must be taken to obtain a final certificate from that Party. If the reason for a Party’s failure to complete the Project is confined to the immediate unavailability of specific items or materials for construction or landscaping at a price reasonably acceptable to Tenant or other minor building “punch-list” items, Landlord may issue its final Certificate of Occupancy upon the posting of a bond or irrevocable standby letter of credit by Tenant in a form reasonably acceptable to Landlord in an amount representing the fair value of the work on the Project remaining to be completed, as reasonably determined by Landlord. (d) A final Certificate of Occupancy shall not be deemed to constitute a notice of completion under Section 8182 of the California Civil Code, nor shall it act to terminate the continuing covenants, restrictions or conditions contained in this Lease, Project Approvals, or any other instruments recorded against the Leased Premises pursuant to this Lease. A final Certificate of Occ upancy is not evidence of the compliance of the Project with any Government Requirements.

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5.14 Location and Type of Tenant’s Signs. Subject to compliance with and limitations of the Government Requirements and Planning Approvals, Tenant shall have the right to erect and maintain any signs related to the Tenant or the Intended Use which Tenant may deem appropriate, in accordance with the provisions of any applicable provisions of the Laws. Without limiting the foregoing, Landlord agrees to grant Tenant the largest and most prominent panel on: (i) any existing or future tower or pylon signage along Garfield Avenue or the State Route 60 Freeway located on property owned by the Landlord and located within one (1) mile of the Leased Premises; (ii) any existing or future billboard or monument signage along Garfield Avenue or the State Route 60 Freeway within one (1) mile of the Development, and; (iii) any existing or future signage related to the Development whether such signage is located within the Development or off -site. Tenant may not display any signs or message that: (a) is inherently false, misleading, or libelous ( i.e., speech that is incapable of being presented in a manner that is not misleading); (b) promotes the sale or use of firearms, tobacco products, or marijuana, whether directly or indirectly; (c) promotes adult entertainment, products, conventions, events, or websites; (d) contains “obscene matter,” as that term is defined in local, California or federal law, including but not limited to any statements or words of an obscene, indecent or immoral character, or any picture or illustration of any human figure in such detail as to offend public morals or decency or any other mat ter or thing of an obscene, indecent or immoral character; (e) contains any “political advertising,” which means advertising that promotes or opposes any candidate for public office or promotes or opposes a ballot measure, referendum, bond issue, or any fe deral, state or local legislation, regulation, or other discretionary action; or (f) contains language that presents a clear -and-present danger of causing riot, disorder, or other imminent threat to public safety, peace, or order; that promotes any product, service or activity that is illegal under federal, state, or local law.

5.15 Financial Assistance to Tenant . The Parties agree that Landlord shall not provide any financial assistance to Tenant in connection with the Project except as is expressly set forth in this Lease. Tenant shall be solely responsible for paying for the costs of all design work, construction, labor, materials, fees and permit expenses associated with the Project not expressly delineat ed as a Project Cost in the Construction Budget to be paid for from the Project Fund. Tenant shall pay any and all fees pertaining to the review and approval of the Project by Landlord, any other governmental agencies and utility service providers, includ ing the costs of preparation of all required construction, planning and other documents reasonably required by a governmental agency pertinent to the development or operation of the Project on the Leased Premises, including, but not limited to, specifications, drawings, plans, maps, permit applications, land use applications, zoning applications, environmental review and disclosure documents and design review documents. Tenant shall comply with any conditions of approval set forth in the Project Approvals and shall take reasonable precautions to ensure the safety and stability of surrounding properties during said construction.

5.16 Landlord’s Disclaimer of Warranties. EXCEPT AS OTHERWISE SET FORTH

HEREIN, THE LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EITHER

EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION,

MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR

THE USE CONTEMPLATED BY THE TENANT OF THE PROJECT OR ANY PORTION THEREOF. THE TENANT ACKNOWLEDGES THAT THE LANDLORD IS NOT A

MANUFACTURER OF THE PROJECT OR OF ANY PORTION THEREOF, AND IS NOT A DEALER THEREIN, AND THAT THE TENANT IS LEASING THE PROJECT AS IS. In no

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event shall the Landlord be liable for incidental, indirect, special or consequential damages, in connection with or arising out of this Lease for the existence, furnishing, functioning or Tenant’s use and possession of the Project.

Article 6.

RENT

6.1 Payment of Rent. Tenant shall timely pay all Rent due under this Lease to Landlord by check or electronic transfer payable to Landlord at Landlord’s address set forth herein. In the event Landlord changes its address, Tenant may continue to direct payments of Rent to Landlord’s prior address until such time as Landlord notifies Tenant in writing of such change.

6.2 Annual Fixed Rent . During the Term of this Lease, Tenant agrees to pay the Annual Fixed Rent described in this Section as annual rent for the use and possession of the Leased Premises. During each Lease Year, Tenant pay the Annual Fixed Rent to City in two (2) equal installments that shall be due and payable in arrears and in immediately available funds on each February 1 and August 1 (the “Rent Payment Date”) during the Term of this Lease. The payment due on each February 1 shall be rent for the period from the prior September 1 through the next following February 28 or 29 (as applicable), and the payment due August 1 shall be rent for the period from the prior March 1 through the next following August 31. (a) Rent – Construction Term. From the Effective Date through the end of the Construction Term, no Rent or any other charges shall be payable. (b) Rent - Initial Fixed Term. During the Initial Fixed Term of this Lease, the Annual Fixed Rent is intended to be both sufficient in both time and amount to pay when due the City’s obligations to make Lease Payments under the Facility Lease. Annual Fixed Rent during the Initial Fixed Term shall consist of the fair market lease value of the Premises in its unimproved condition (“ Base Rent”), plus an amount equal to the Lease Payments which the Landlord is obligated to pay to the Authority under the Facility Lease (“Improvement Rent ”). During the Initial Fixed Term, Tenant shall make payments of Improvement Rent directly to the Trustee, on behalf of the Landlord, in accordance with the schedule attached as Exhibit M (Improvement Rent Payment Schedule), which is attached hereto and incorporated herein , and such payments of Improvement Rent by Tenant to Trustee, if timely made, shall fully satisfy Tenant’s obligation to pay Improvement Rent to the Landlord hereunder. During the Initial Fixed Term and any Renewal Term(s) , Tenant shall make payments of Base Rent, in accordance with the schedule attached hereto as Exhibit L (Base Rent Payment Schedule), directly to Landlord.

The Base Rent and Improvement Rent during the Initial Fixed Term shall be fixed on the date of issuance of the Bonds.
(c) Rent – Option Period(s). Upon expiration of the Initial Fixed Term , and continuing for the remaining T erm of this Lease , Tenant’s payments of Base Rent under this Lease (for example, in the first operating year after the Initial Fixed Term), shall be established at One Million Seven Hundred Thirty -Two Thousand Dollars ($1,732,000), and such Base Rent shall be increased every five (5) years b y an amount that is equal to five percent (5%) of the annual Base Rent payment made by Tenant in the year immediately preceding the increase. For example, assuming expiration of the Facility Lease, during

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operating years twenty -two (22) thro ugh twenty-seven (27), Tenant’s annual Base Re nt payments under this Lease (to be paid in two (2) installments as specified above or otherwise agreed to by the Parties) shall be five percent (5%) more than the amount of Tenant’s annual Base Rent payments in year twenty -one (21); and as a further examp le, during operating years twenty -eight (28) through thirty -one (31), Tenant’s annual Base Rent payments under this Lease (to be paid advance in equal monthly installments) shall be five percent (5%) more than the amount of Tenant’s annual Base Rent paymen ts in operating year twenty-seven (27). The Parties agree that the Rent defined in this subsection constitutes the fair market rent for the Leased Premises in fully improved condition. In making such determinations, consideration has been given to the fai r rental value of the improvements including but not limited to costs of operation, maintenance, taxes and insurance, the construction cost of the Project, the insured value thereof, the uses and purposes which may be served by the Project and the essentia l public benefits therefrom which will accrue to the City and the general public. During any Option Period(s), if an installment of Annual Fixed Rent is payable for a portion of a six-month period, the amount payable shall be a pro rata share of the instal lment of Annual Fixed Rent otherwise due.

During any Option Periods, the Annual Fixed Rent shall be prorated for any partial Lease Year.
(d) Application of Excess Bond Proceeds to Reduce Rent . Notwithstanding anything to the contrary in this Lease, if the ne t proceeds of the Bonds that are deposited into the Project Fund exceed the total Project Costs of the Project, as determined after the City’s issuance of the final Certificate of Occupancy, then amounts remaining in the Project Fund shall be applied in ac cordance with and as required by the Indenture. The Parties agree that, if permitted by the Indenture, such excess net proceeds shall be used to redeem or pay down the Bonds, in which case Tenant’s Improvement Rent shall be adjusted to reflect the amount paid by Landlord under the Facility Lease for use and occupancy of the Project.

6.3 Credits Against Improvement Rent. The Parties recognize and agree that the Tenant’s Rent payments shall not be abated for any reason during the Term of this Sublease , provided that the Tenant shall receive a dollar-for-dollar credit against Tenant’s obligation to pay Improvement Rent hereunder to the extent th at the Landlord’s Lease Payments due to the Authority under the Facility Lease are paid from any of the following sources: (a) any liquidated damages, completion or performance bonds monies paid to the Landlord by Contractors or any other person as damages as a result of any defect or delay in completion of the Project being constructed on the Lease Premises, or ( b) from the proceeds of casualty insurance, rental interruption insurance, or condemnation award. Any amounts received by the Landlord as damages under the construction contract(s) for construction of the Project shall be delivered by the Landlord to the Trustee immediately upon receipt thereof for deposit by the Trustee in a special fund created by the Indenture for this purpose.

6.4 Rate on Overdue Payments. In the event the Tenant should fail to make all or any portion of any Annual Fixed Rent required by this Section, unless excused by law or the terms and conditions set forth herein, the Annual Fixed Rent, or portion thereof unpaid, shall continue as an obligation of the Tenant until the unpaid amount shall have been fully paid, and the Tenant agrees to pay the same with interest th ereon from the date such amount was originally due at the rate

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equal to the original interest rate payable on the Bonds.

6.5 No Withholding. Notwithstanding any dispute between the Tenant and the Landlord, other than a disput e where Landlord’s obligations to make Lease Payments under the Facility Lease have been abated, the Tenant shall make all payments of Annual Fixed Rent when due and shall not withhold any Rent pending the final resolution of such dispute.

6.6 Change in Ownership. Both Parties shall promptly notify the other Party in writing of any change in address or the ownership of their interest in the Leased Premises, giving the new address or the name and address of the new owner, as applicable, as well as instructions regarding the payment of Rent. In the event of any change in Landlord’s address or a transfer of title o r Landlord’s leasehold interest in and to the Leased Premises, Tenant shall have the right to continue to pay Rent at the address and to the party (Landlord) to which Tenant was making such payments prior to such change in ownership until Tenant is notified of such change in address or ownership and given satisfactor y proof thereof (it being hereby agreed that a letter from the prior owner notifying Tenant of such transfer and the name and address of the new owner will be satisfactory proof of such change in ownership). In cases of a transfer of title of Landlord’s leasehold interest in and to the Leased Premises, or Tenant’s transfer of its leasehold interest in and to the Leased Premises, such new owner or lessee shall execute and deliver an agreement whereby such new owner or lessee assumes and agrees to discharge a ll applicable obligations under this Lease.

Landlord shall not have the right to transfer its leasehold interest in and to the Lease Premises without first complying with Section 9.5.

Article 7.

EXPENSES

7.1 Intentionally Omitted.

7.2 Common Facilities Expenses.
(a) Common Facilities Expenses. In addition to Tenant’s obligation to pay Rent to Landlord under this Lease, Tenant agrees to timely pay during the Term Tenant’s Pro Rata Share of the Common Facilities Expense attributable to the Common Facilities identified on Exhibit E attached hereto. Subject to the further provisions hereof, Tenant shall pay Tenant’s Pro Rata Share of such Common Facilities Expense directly to the appropriate Party under the Development Declaration for each calendar year during the Term of this Lease, and such Comm on Facilities Expense shall be computed and paid in accordance with the Development Declaration.

Notwithstanding anything in this Lease to the contrary, the Common Facilities Expense assessed against the Leased Premises for any calendar year beginning befo re the Commencement Date or ending after the date on which this Lease is terminated or expires shall be prorated between Landlord and Tenant through the Commencement Date or the date of expiration or termination, as applicable. For each calendar year in the Term thereafter, the Common Facilities Expense payable by Tenant shall not exceed Tenant’s Pro Rata Share of the Common Facilities Expense actually incurred and payable by Tenant with regard to the Leased Premises for such calendar year. (b) Audit Rights . Landlord hereby grants to Tenant the right to receive all statements under the Development Declaration related to the Common Facilities Expense. Tenant shall have the right to audit Landlord’s books and records relating to the Common Facilities

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Expense during normal business hours and upon reasonable prior notice. Landlord also hereby grants to Tenant the right to exercise directly Landlord’s rights to audit the books and records relating to the Common Facilities Expense of any applicable person or enti ty under the Development Declaration. The provisions of this Section 7.2 shall survive the expiration or the earlier termination of this Lease.

7.3 Real Estate Taxes.
(a) Tenant’s Responsibilities . Landlord discloses and Tenant acknowledges that Landlord’s ownership interest in the Leased Premises, as well as Landlord’s and the Authority’s respective leasehold interests in the Leased Premises under the Site and Facility Leases, are exempt from real p roperty taxes by virtue of Landlord’s and Authority’s status as a local governmental agencies. Tenant recognizes and understands that this Lease may create a possessory interest subject to property taxation and that Tenant may be subject to the payment of property taxes levied on such interest. Tenant further recognizes and understands that any sublease or assignment permitted under this Lease and any exercise of any option to renew or other extension of this Lease may constitute a change in ownership for p urposes of property taxation and therefore may result in a revaluation of any possessory interest created hereunder. Tenant shall pay directly to the appropriate taxing authorities prior to their delinquency all Taxes Applicable to Leased Premises (including but not limited to possessory interest taxes), if any, falling within the Term of this Lease.
(b) Tenant’s Right to Contest Taxes. Tenant shall have the right to contest any possessory interest taxes or other Taxes Applicable to Leased Premises by appropriate legal proceedings or in such other manner as it deems suitable, and upon Tenant’s request Landlord shall reasonably cooperate in such contest, protest or proceeding. Landlord shall not, during the pendency of such legal or other proceeding or contest, pay or discharge any Taxes on the Leased Premises or any tax lien, provided Landlord may do so to stay a sale of the Leased Premises through foreclosure of a tax lien thereon. Any refund obtained by Tenant sh all be paid to Tenant, except that Landlord shall be entitled to receive the proceeds of any refund to the extent Landlord has paid or discharged the tax to stay a foreclosure sale of a tax lien.

7.4 Tenant’s Operating Costs; Utility Payments. Tenant shall be solely and exclusively responsible for any and all expenses, fees, assessments and costs in connection with managing, staffing, operating, maintaining, repairing, insuring, lighting, protecti ng and securing the Project and Leased Premises during the Term of this Lease, including but not limited to all charges for gas, electricity, water, sewer service and other utilities used in the Project and the Leased Premises during the Term of this Lease. All such utilities will be separately metered and obtained by Tenant from the applicable utility company. Tenant also shall be solely responsible for the payment of any connection, tap, hookup or other fee(s) imposed by Governmental Authorities or by any utility company to extend, connect or continue utility service to the Leased Premises.

Article 8.

USE OF PREMISES

8.1 Use. During the Initial Fixed Term, the Leased Premises may be used by Tenant solely and exclusively for the construction and operation of the Project, including all uses incidental thereto (the “Intended Use”), except as may otherwise be approved in the reasonable discretion of

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the Landlord and subject to: (a) any conditions or limitations of the Indenture or Bond Leases and; (b) Tenant’s compliance with any applicable Government Requirements and City Requirements, including but not limited to discretionary land use approvals under the Montebello Zoning Code.

Notwithstanding the foregoing, during the Initial Fixed Term Tenant may use the Leased Premises for restaurant, entertainment, and sporting related uses that Tenant determines are necessary to remain relevant to its customers and competitive in its industry , and , Tenant may m odify the Improvements in connection therewith ; subject to any limitations in the Indenture or Facility Lease, and provided that Tenant complies with the provisions of Article 13. Following the Initial Fixed Term, the Leased Premises may be used by Tenant for any lawful use subject only to any applicable Government Requirements and City Requirements, including but not limited to discretionary land use approvals under the Montebello Zoning Code.

8.2 Management and Operation of the Project . Upon the Landlord’s issuance of the final Certification of Occupancy for the Project, the Construction Term shall expire and Tenant shall have the rights and responsibilities with regard to the Leased Premises for t he remainder of the Term as set forth in this Lease. Tenant agrees to maintain and manage the Leased Premises in an attractive and professional condition of repair to the reasonable satisfaction of Landlord, and in a manner that is at least equal to the quality, nature, professionalism, and type that is associated with the maintenance and management of a standard facility or venue operated by Tenant or its affiliates in the United States. Tenant agrees to provide reasonable evidence of its maintenance and management performance at the request of Landlord from time to time; but, no more frequently than annually. Neither Tenant nor any of Tenant’s successor and assigns will enter into any sublease or allow occupancy of any property within the Leased Premises to a tenant or party who is considered to be operating a deep discount, bargain, fire sale or thrift business, or a business of a sexually oriented nature. This covenant shall run with the land for the Term of the Lease.

8.3 Landlord Assistance . Landlord agrees to execute, without cost to Landlord, such applications, consents and other instruments as shall be required by Governmental Authorities to permit operation of the Project for the Intended Use ; provided that noth ing in this section or elsewhere in this Lease shall limit or restrict Landlord’ s discretionary authority as a government authority in relation to the City Requirements.

8.4 Tenant’s Right to Control Operations . Except as expressly set forth herein, nothing contained in this Lease shall be deemed in any way to regulate the manner of operation by Tenant of its business in the Project or the hours or days of such operation or give Landlord any right, express or implied, of censorship over any attractions exhibited in the Project or over the content of Tenant’s (or any subtenant’s) advertising. Nothing in this section is intended or shall be interpreted as a waiver of Landlord’s right, as a government authority, to enact and enforce local laws, rules, regulations or other City Requirements that maybe applicable to the Leased Premises, the Project, or Tenant’s use thereof . Notwithstanding the foregoing, Tenant shall at all times exercise sound business and professional judgment in operating the Project and occupying Leased Premises, and shall take such reasonable or good faith actions (or decline to take such actions) as would be expected of a similarly situated business that is engaged in a profit seeking enterprise and desiring to make reasonable and productive use of the Leased Premises.

8.5 Exclusive Right to Operate . For so long as Tenant operates the Project on the Leased Property, Landlord and Landlord’s Affiliates shall not (i) sell or lease property within the

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Development to a purchaser or tenant who intends to use such property for a primary use that is similar to the Project, or (ii) permit the operation of a venue or facility that is substantially similar to the Project within the Development. The foregoing restriction shall not apply to Leased Premises; nor apply to Landlord’s approval or operation, directly or through contract, of a golf - course and golf-related activities within the Development, or to the development or operation of restaurant, entertainment, hospitality, or similar uses that are not similar to the Project. This covenant shall run with the land and may be memorialized in the recorded Memorandum of Lease.

8.6 Landlords Maintenance of Development. Landlord agrees for itself and on behalf of all of Landlord’s Affiliates that it or they will maintain all properties within the Development, excluding the Leased Premises but including any development owned by Landlord or any Landlord Affiliate that is located adjacent to the Leased Premises, whether now existing or to be built, in a an attractive and professional condition of repair to the reasonable satisfaction of Tenant, and such maintenance will include mowing, irrigation of grass, upkeep of drives, lighting, signage, parking areas and general landscaping of the Development . Neither Landlord nor any of Landlord’s Affiliates will enter into any lease or permit a sale of any property within the Development to a tenant or purchaser who is considered to be operating a deep discount, bargain, fire sale or thrift business, or a business of a sexually oriented nature. This covenant shall run with the land and shall be included in the recorded Memorandum of Lease and/or the Development Declaration.

Article 9.

SUBLETTING AND ASSIGNING

9.1 Permitted Assignments and Subleases . Tenant shall not transfer or sublease its interest in and to the Leased Premises or otherwise assign its rights or delegate its duties or obligations under this Lease to any assignee or sublessee, without the prior written consent of Landlord, which consent may be withheld or conditioned in the sole and absolute discretion of Landlord. Any unauthorized transfer or sublease shall be null and void. Notwithstanding the foregoing or anything herein to the contrary, Tenant may, without Landlord’s prior consent but with at least sixty (60) days prior written notice to Landlord, assign, sublet, or transfer its interest in this Lease and the Leased Premises to any of the following (each, a “Permitted Transferee”):
(a) any business entity which may, as the result of a reorganization, merger, consolidation, or sale of assets, succeed to substantially all of the bu siness carried on by Tenant or Tenant’s Parent (as defined hereinbelow);
(b) any Affiliate of Tenant;
(c) any entity which acquires fifty percent (50%) or more of the issued and outstanding voting stock or ownership interests (or such lesser percentage as shall be sufficient to acquire voting control) of Tenant or the entity that directly controls Tenant (“Tenant’s Parent”);
(d) any entity which acquires Tenant’s interest in the Leased Premises in a transaction whereby the Tenant continues to operate the Leased Premise s under the same use or tradename pursuant to a sublease, management contract, operating agreement or otherwise;

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(e) to any entity which (i) directly or through an Affiliate, operates a commercially meaningful number of venues or facilities similar to the Project and Intended Use operated by Tenant, and (ii) has, as a principal executive, an individual with at least five (5) years’ experience operating such venue or facility and use; and (f) to any California business entity, or any Delaware business entity that is qualified to conduct business in California, that is formed for the purpose of carrying out the Project and for which Tenant is a majority shareholder/member and the manager thereof.

9.2 Tenant’s Continued Liability. In any sublease or assignment of Tenant’s rights in and to the Leased Premises by Tenant, Tenant shall, subject to the provisions of Section 9.3, remain liable and responsible under this Lease , and during the Initial Fixed Term shall remain liable a nd responsible under the Guarantee. If Tenant assigns this Lease and remains liable hereunder, then Landlord, when giving notice to said assignee or any future assignee in respect of any default, shall also serve a copy of such notice in the manner provide d herein upon the original tenant named in this Lease. Such original tenant, at its sole option, shall have the same period that such assignee as Tenant under this Lease has to cure such default.

9.3 Release of Tenant and Guarantor . Notwithstanding anything in this Lease to the contrary, provided that the Tenant is not in breach or default under this Lease and the Guarantor is not in breach or default under the Guaranty, an assigning Tenant, Guarantor, and their respective predecessors in interest shall be released from further liability under this Lease and the Guaranty if:
(a) Tenant assigns this Lease at any time after the Initial Fixed Term, and following payment in full of all Rent (including Base Rent and Improvement Rent) coming due during the Initial Fixed Term, and the assignee, by written instrument, duly executed and acknowledged and delivered to Landlord, assumes and agrees with Landlord to perform all the terms, covenants and conditions of this Lease from and after such transfer, or
(b) Tenant assigns this Lease at any time and such assignee (or the guarantor of such assignee’s obligations under this Lease) has a net worth of not less than $50,000,000 as of the end of the calendar month preceding the month during which any such assignment becomes effective, as demonstrated to Landlord’s reasonable satisfaction (e.g. by certified financial statements or the delivery of a 10-Q report, in the case of a public company), and such assignee delivers a replacement Guarantee in the same form as attached hereto for the remainder of the Initial Fixed Term.

Subject to a valid assignment and delivery of a substitute Guarantee , if applicable, the Landlord shall, upon written request by an assigning Tenant, execute such reasonable acknowledgements or releases in a form approved by the Landlord’s legal counsel as are necessary to effectuate to this section.

9.4 Rights of Certain Subtenants. Landlord and Tenant agree that a Permitted Transferee or other permitted assignee or subtenant occupying the entire Leased Premises may exercise any right or perform any obligation of Tenant hereunder and that the same shall be deemed the exercise or

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performance of Tenant under this Lease . Landlord shall give to such subtenant a copy of each Notice which it gives to Tenant pursuant to this Lease in the manner required by this Lease. Such Notice shall be sent to the addressees designated by such subtenant from time to time.

9.5 Transfer by Landlord. Before completion of construction of the Project and full payment of all draw requests in connection with such construction, Landlord shall not have the right to sell, transfer, or assign Landlord’s interest in the Leased Premises and/or this Lease at any time during the Term of this Lease without Tenant’s prior written consent, which consent shall be within Tenant’s sole and absolute discretion. Thereafter, Landlord shall have the right to sell, transfer or assign Landlord’s interest in the Leased Premises and/or this Lease without seeking Tenant’s consent; provided, however that Landlord shall promptly notify Tenant of any such sale, transfer or assignment.

Article 10.

IMPROVEMENTS, FIXTURES AND TENANT’S PROPERTY

10.1 Improvements.
(a) Leasehold Interest During Initial Fixed Term. During the Initial Fixed Term of this Lease, the Authority holds a leasehold interest in the Leased Premises under the Facility Lease and is the owner of the Project, and the Landlord holds a leasehold interest in the Project which is being subleased to Tenant. During the Initial Fixed Term, title to the Property shall at all times be and remain vested in the Authority until the expiration of Initial Fixed Term. Any alterations, changes, improvements and /or additions made to the Project) during the Construction Term or Initial Fixed Term of this Lease by Tenant shall comply with Section 13.1.
(b) Leasehold Interest Transferred to the Tenant. On the day of the expiration of the Initial Fixed Term, all right, title and interest of the Landlord in the Project under the Facility Lease, and all right, title and interest of the Landlord in the Project shall terminate without the necessity of any additional document of transfer by either of the parties, and title to the Project shall pass to and be vest in Tenant.

10.2 Option to Prepay Improvement Rent. The Tenant may exercise an option to prepay all or a portion of the Improvement Rent on the same terms and conditions upon which the Landlord may prepay all or any portion of the Lease Payments under the Facility Lease, and by prepaying Improvement Rent in the amounts necessary to cause the termination of the Facility Lease, terminate the Authority’s leasehold interest in the Leased Premises pursuant to the Facility Lease and t he Authority’s right, title and interest in the Project, as well as the Landlord’s leasehold interest in the Project under the Facility Lease. Tenant’s exercise of the rights in this section are subject to and conditioned upon the existence of Landlord’s right to prepay Lease Payments under the Facility Lease and the Authority’s right to redeem the Bonds, as well as Landlord’s compliance with all terms and conditions necessary to prepay Lease Payments due under the Facility Lease and the Authority’s compliance with all terms and conditions necessary to redeem the Bonds before their scheduled maturity, which Landlord shall perform or otherwise fac ilitate with the Authority in good faith should Tenant properly exercise the rights in this section. At a minimum and unless otherwise agreed by the Parties, Tenant shall provide at least ninety (90) days written notice of its intention to prepay Improvement Rent to City, and shall deposit the full prepayment

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amount (based on a written demand from the Trustee) with the Trustee not later than forty five (45) days prior to the proposed prepayment date of the Bonds.

10.3 Fixtures. All trade fixtures and equipment, signs, appliances, furniture and other personal property of any nature identified or described in Exhibit I hereto and installed on the Leased Premises or in the Project (all of the foregoing, together with the Project and all other improvements, being collectively referred to in this Lease as “ Tenant’s Property ”), shall not become a part of the real property a nd may be removed by Tenant from the Leased Premises at any time prior to sixty (60) days following the expiration or termination of this Lease.

10.4 Tenant’s Intellectual Property. All proprietary technology and equipment as well as all trademarks, copyrighted works, patents and other intellectual property developed by and/or used by Tenant or its Affiliates in connection with the Topgolf brand an d the Project (“Tenant’s IP”) shall not become a part of the real property and may be removed by Tenant from the Leased Premises at any time.

10.5 Landlord Waiver. Landlord hereby waives all liens, claims, demands or rights, including rights of levy, execution, sale and distraint for unpaid rent, or any other right, interest or lien which Landlord has or may hereafter acquire in Tenant’s Property and Tenant’s IP.

10.6 Obligations Upon Expiration After Initial Fixed Term. Upon expiration or termination of this Lease at time after the Initial Fixed Term, Tenant shall, at Landlord’s option and direction, either: (i) demolish all or any portion of the Improvements then existing on the Leased Premises and remove promptly thereafter all debris and leave the building pad and the Leased Premises in a clean and sightly condition all at Landlord’s cost, or (ii) surrender all such Improvements on the Leased Premises to Landlord in their then -existing condition, AS IS WHERE IS, subject to Tenant’s compliance with the coveants and commitment that survive the expiration or termination of this Lease, and upon Landlord’s request, shall deliver a quitclaim deed to Landlord therefor.

Tenant shall have a period of sixty (60) days after the termination or expiration of this Lease to remove Tenant’s Property and Tenant’s IP, and any of Tenant’s Property not so remove d may be destroyed by Landlord at Tenant’s expense, or at Landlord’s discretion shall become the property of Landlord; provided, however, that the Parties agree that Tenant’s IP is and shall always remain the sole property of Tenant and will never become the property of Landlord.

Article 11.

GOVERNMENTAL COMPLIANCE

11.1 Tenant Responsibilities Generally. Tenant shall comply with the terms of all Laws that apply to the Leased Premises and the Project located thereon and Tenant’s use and occupancy thereof. If Tenant receives written notice of any violation of any Laws applicable to the Leased Premises, Tenant shall give prompt notice thereof to Landlord. Tenant may, at its expense, contest the validity or application of any governmental requirements and may seek approval from a court with jurisdiction to postpone or delay compliance therewith (in whole o r in part) pending final resolution of such contest.

11.2 Parties; Environmental Knowledge. Landlord warrants and represents to Tenant that to Landlord’s actual knowledge, with no duty of investigation, that: no release, leak, discharge, spill, storage, disposal or emission of Hazardous Substances has occurred in, on or under the Leased

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Premises; the Leased Premises are free of Hazardous Substances as of the date hereof; there are no underground storage tanks under or adjacent to the Leased Premises; the Leased Premises are in compliance with all Environmental Laws; there has not been any notice of intent to sue, notice of violation, citation, warning or similar notification under any Environmental Law regarding the Leased Premises or arising out of operations on the Leased Premises; and there is no investigation or inquiry by any Governmental Authority concerning the Development or the operations thereon under any Environmental Law.

11.3 Pre-Existing Environmental Conditions. Tenant shall have no liability to Landlord or any other person or Governmental Authorities for any contamination, Hazardous Substances, violations of Environmental Law, or other environmental conditions that give rise to liability under any Environmental Law and first occurred prior to the Effective Date (“Pre-Existing Environmental Conditions”). If any Pre -Existing Environmental Conditions are found on the Leased Premises or Common Facilities, Landlord shall promptly investigate and remediate the same in accordance with Environmental Laws and to the satisfaction of all Governmental Authorities, doing so in a manner that avoids damage to the Project and minimizes interference with Tenant’s use and enjoyment of the Leased Premises to the extent reasonably possible.

11.4 Landlord’s Environmental Responsibilities During the Term of this Lease. Landlord shall not cause any Hazardous Substances to be used, stored, generated or disposed of (collectively, “Used”) on, in or under the Leased Premises by Landlord, Landlord’s agents, employees or contractors, or anyone claiming by, through or under Landlord.

11.5 Tenant’s Environmental Responsibilities. During the Term of this Lease, Tenant shall not cause or permit any Hazardous Substances to be Used on, in or under the Leased Premises by Tenant, Tenant’s agents, employees or contractors, or anyone claiming by, through or under Tenant, except in the ordinary course of business in the operation of Tenant’s business, or as reasonably required in performing the obligations of Tenant under this Lease, and then only to the extent no Laws in effect at such time are violated by Tenant with regard to such Use.

11.6 Environmental Indemnities. Each party (“Indemnifying Party”) shall indemnify, defend and hold the other party (“Indemnified Party”) harmless from all Claims owing to third parties or suffered by Indemnified Party, including court costs, reasonable attorneys’ fees and consultants’ fees, arising during or after the Term and reasonably incurred or suffered by the Indemnified Party as a result of any default or breach of any representation, warranty or covenant made by the Indemnifying Party under this Article 11. Without limiting the foregoing, Landlord shall indemnify, defend and hold Tenant harmless from all Pre-Existing Environmental Conditions, and Tenant shall indemnify Landlord for all Hazardous Substances other than pre-existing Hazardous Substances or matters arising under Section 11.4. It is a condition of this indemnification and hold harmless obligation that the Indemnifying Party must receive notice of any such claim against the Indemnified Party promptly after Indemnified Party first has knowledge thereof, but no failure by the Indemnified Party to promptly notify the Indemnifying Party of any such claim shall adversely affect the Indemnified Party’s right to indemnification except (and only to the extent) that the Indemnifying Party can prove prejudice as a result of the failure to receive prompt notice. This indemnification and hold harmles s obligation includes all costs reasonably incurred by the Indemnified Party after notice to Indemnifying Party arising from the Indemnifying Party’s failure

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to take the actions required under this Article. The provisions of this Article 11 shall survive the expiration or the earlier termination of this Lease.

Article 12.

MAINTENANCE AND REPAIRS

12.1 Payment for Maintenance and Repairs. As part of the consideration for the rental of the Leased Premises, all repair and maintenance of the Leased Premises shall be the responsibility of the Tenant, and the Tenant shall pay for or otherwise arrange for the payment of the cost of the repair and replacement of the Leased Pr emises resulting from ordinary wear and tear or want of care on the part of the Tenant or any sublessee thereof. Tenant shall pay all costs, expenses, fees and charges incurred in connection with the use , maintenance, and occupancy of the Leased Premises consistent with this Lease. Tenant shall keep and maintain the Project in a good and safe condition that is at least equal to Tenant’s Standards applied to management at Tenant’s other United States venues or facilities, and during the Initial Fixed Term T enant shall comply with all terms, conditions, and requirements of the Bond Leases. Subject to Section 7.2 (sharing of Common Facilities Expense), Landlord shall pay or cause to be paid all costs, expenses, fees and charges incurred in connection with the use of the Development (minus the Leased Premises).

12.2 Demolition. During the Initial Fixed Term of this Lease, and except as part of a permitted alteration as described below, Tenant shall have no right to demolish the Project or other Improvements on the Leased Premises except upon the advance written notice to and approval by the Landlord during the Initial Fixed Term, which approval may be withheld in their reasonable discretion, and subject to: (a) any terms, conditions or limitations of the Bond Leases during the Initial Fixed Term, and; (b) Tenant’s compliance with any applicable City Requirements, including but not limited to discretionary land use approvals and permits required by the Montebello Municipal Code. During any Option Period(s), Tenant shall have the right to demolish the Project and other Improvements on the Leased Premises upon Tenant’s compliance with any applicable City Requirements, including but not limited to discretionary land use approval s and permits required by the Montebello Municipal Code.

Article 13.

ALTERATIONS AND TENANT’S LIENS

13.1 Alterations. Subject to Tenant ’s compliance with applicable City Requirements and Government Requirements , Tenant may, without Landlord’s consent, make alterations, modifications, renovations or additions to the Project that are within the interior or exterior of the Project or that ar e being implemented in a substantial portion (at least 1/3) of other Topgolf facilities located in the United States . Notwithstanding the foregoing, during the Initial Fixed Term of this Lease, Tenant shall not make any such alterations, renovations, or a dditions that are prohibited by the Indenture or Bond Leases as determined in the reasonable discretion of the Landlord. Any interior or exterior alteration, renovation, or addition to the building improvements on the Leased Premises during the Initial Fixed Term that, based on an engineer’s estimate, are expected to cost more than $1,000,000 , shall additionally require the prior written consent and discretionary approval of Landlord , which approval may be withheld in Landlord’s reasonable discretion. Notwithstanding anything to the contrary herein, Landlord pre -approves and consents to Tenant’s alterations, renovations and/or additions to the Project that are substantially similar to the Scope of Work attached hereto as Exhibit J and that will be performed at regular intervals every

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five (5) years, seven (7) years, or nine (9) years , including, without limitation, replacing the outfield turf, painting the netting poles, replacing the barrier netting , and updating the interior, exterior and teeline to conform with updates to other Topgolf venues. Notwithstanding anything contrary in this Lease, any alternations or modifications to the Project made by Tenant during the Initial Fixed Term shall not in any way damage any portion of the Project or cause it to be used for purposes other than those authorized under the provisions of local, state and federal law , or diminish the fair rental value of the Project; and the Project, upon completion of any additions, modifications or improvements made pursuant to this section, shall be of a value which is not less than the value of the Project immediately prior to the making of such additions, modifications or improvements. Nothing in this section or Lease is intended or shall be interpreted as limiting Landlord’s authority and discretion as a government a uthority with reference to City Requirements.

13.2 No Mechanics Liens. Tenant shall not permit any mechanic’s, materialman’s or other similar lien to be foreclosed against the Leased Premises by reason of work, labor, services or materials performed by or furnished to Tenant. If any such lien shall at any time be filed, Tenant may contest the same in good faith but Tenant shall, prior t o foreclosure thereof, cause such lien to be bonded or released of record. Tenant hereby covenants and agrees to indemnify and hold harmless Landlord from and against all Claims which Landlord may suffer or incur by reason of any such mechanic’s, materialman’s or other similar lien.

13.3 Limitation on Liens During Initial Fixed Term . During the Initial Fixed Term of this Lease, the Tenant shall not, directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, liens, charges, encumbrances or claims on or with respect to the Project. The Tenant shall promptly, at its own expense, take such action as may be necessary to duly discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim, for which it is responsible, if the same shall arise at any time; provided that the Tenant may contest such lien or claim if it desires to do so, so long as such contest will not adversely affect the rights of the Landlord or the Authority to the Project or the payment of Improvement Rent hereunder. The Tenant shall reimburse the Landlord and the Trustee for any expense incurred by either of them in order to discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim. The Tenant shall promptly notify the Landlord of any mortgage, pledge, lien, charge, encumbrance or claim on the Project.

Article 14.

DAMAGE CLAUSE

14.1 Damage.
(a) Casualty During Initial Term. If, during the Initial Fixed Term, the Project is damaged or destroyed by fire, casualty or any cause whatsoever, either in whole or in part, the proceeds of all insurance on the L eased Premises required by this Lease shall be paid and applied in the manner required by the Bond Leases and Indenture to replace or repair the Project to a use which will have an annual fair return rental value to that which was destroyed; provided that the proceeds of any separate insurance policies maintained by Tenant for Tenant’s Property shall belong to Tenant. (b) Casualty During Option Period(s). If, after expiration of the Initial Fixed

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Term and during any Option Period(s), the Project or any other Improvements are damaged or destroyed by fire, casualty or any cause whatsoever, either in whole or in part, and Tenant does not elect to terminate this Lease pursuant to the provisions of Section 14.2 hereof, Tenant shall with due diligence remove an y resulting debris and repair or rebuild the damaged or destroyed Improvements. Unless Tenant, in its sole discretion, elects to terminate this Lease following such a casualty, then this Lease shall not terminate. The proceeds of all insurance on the Leas ed Premises, including Tenant’s Property which is maintained by Tenant, shall belong to Tenant, and Landlord shall make all insurance proceeds available as a result of such fire, casualty or other destruction to Tenant and the then insurance proceeds shall be used for restoration. Notwithstanding the foregoing, in the event of a casualty during any Option Period(s), Tenant may demolish the Project or other Improvements on the Leased Premises and construct new improvements as Te nant may deem appropriate in order to be able to operate pursuant to the Intended Use. In the event Tenant demolishes the Project or other Improvements on the Leased Premises during any Option Period, Tenant shall, at Tenant’s sole cost and expense and as directed in the approval issued by the Landlord, either: (i) remove promptly thereafter all debris and leave the building pad and the Leased Premises in a clean and sightly condition, or (ii) construct new improvements (for use as any lawful use not other wise prohibited by this Lease) according to such plans and specifications as Tenant may deem appropriate.

14.2 Right to Terminate on Certain Damage. If the Improvements are damaged or destroyed by fire, casualty or any cause whatsoever (a) at any time during any Option Period of this Lease to the extent that the cost to repair, restore, and replace such damaged or destroyed Improvements is twenty five percent (25%) or more of the full replacement cost (determined as of the time such damage or destruction occurred) of such Improvements, then Tenant may terminate this Lease by notice to Landlord given within thirty (30) days after such damage or destruction. Upon Tenant giving such notice, this Lease shal l automatically terminate . This section shall have no applicability during the Initial Fixed Term, during which time Tenant shall have the same rights and obligations under this Lease in the event of any casualty or damage to the Project as Landlord has under the Facility Lease.

14.3 Bond Terms; Site Lease and Facility Lease to Control During the Initial Fixed Term, the terms and conditions of the Indenture and Bond Leases shall control to the extent of any conflict with the provisions of this section, and during the Initial Fixed Term, Tenant shall have only those rights and responsibilities as possessed by Landlord under the Facility Lease with reference to the subject matter of this section.

Article 15.

CONDEMNATION

15.1 Taking During Initial Fixed Term . In the event of any taking by eminent domain or condemnation with respect to the Project during the Initial F ixed Term, the Tenant and the Landlord shall transfer to the Trustee any net proceeds received by the Tenant or Landlord for deposit in the special fund created by the Indenture for the Bonds. If the Facility Lease is terminated as a result of a condemnation of the whole of the Project or so much thereof as to render the remainder unusable for the purposes for which it was used by the Tenant, then this Lease shall be terminated on the same date, and to the same extent, as the Facility Lease. If the Facility Lease

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Payments are reduced as a result of a partial taking pursuant to Section 4.10(b) thereof, then the Improvement Rent due hereunder shall be reduced accordingly and the Base Rent due hereunder shall be reduced in the same proportion as the reduction of the Facility Lease Payments and Improvement Rent payments and this Lease shall continue in full force and effect as to the remainder of the Property not taken, and the parties waive the benefits of any law to the contrary.

15.2 Taking During Any Option Period(s). The provisions of this section shall apply in the event of a condemnation or taking following expiration of the Initial Fixed Term and during any Option Period(s).
(a) Total Taking. If any material part of the Leased Premises (meaning any part of the Improvements) is taken in any proceeding by any Governmental Authority by condemnation, eminent domain, or otherwise or is conveyed under threat of such taking (which Landlord shall not do without Tenant’s prior written consent), and Tenant reasonably determines that the remaining portion will not permit Tenant to operate its business on the Leased Premises, Tenant shall have the option of terminating this Lease by notice to Landlord of its election to do so given on or before the date which is six (6) months after Tenant is deprived of possession of the condemned property, and upon the giving of such notice, this Lease shall automatically terminate. If a material pa rt of the Leased Premises (meaning any part of the Improvements) is so taken and Tenant elects not to terminate this Lease, then the Parties shall, to the extent and making use of the condemnation award for the portion of the Leased Premises so taken , rest ore the Improvements to be in compliance with applicable Law and in as near a condition as possible to the condition as the Improvements existed prior to such taking, with such alterations as Tenant and Landlord may mutually deem appropriate. Any restoration work to be performed pursuant to this section shall be completed in accordance with Section 13.1 (Alternations).
(b) Condemnation Award. In any such proceeding whereby all or part of the Leased Premises is taken, whe ther or not a Party elects to terminate this Lease, Landlord and Tenant shall each have the right to prove, claim and receive such sums and award as they may show themselves to be entitled as a result thereof and in particular, but without limitation, Tenant shall be entitled to claim an award which compensates Tenant for the loss in the value of Tenant’s leasehold estate taken or sold as of the date of such condemnation, taking or sale, and a reasonable relocation allowance , and Landlord shall be entitled to claim an award which compensates Landlord for the taking of its fee simple interest in the land containing the Leased Premises. Termination of this Lease shall not affect the right of the respective parties to such awards. (c) Temporary Taking. If by reason of a taking Tenant is temporarily deprived in whole or in part of the use of the Leased Premises or any part thereof, , the entire award made as compensation therefor shall belong to Tenant, and there shall be no abatement of the Annual Fixed Rent payable hereunder.

15.3 No Taking by Landlord Action. Landlord or its Affiliates shall not, directly or indirectly, initiate or take any action seeking a public or private taking of the Project, Improvements, or of any part of the Leased Premises.

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Article 16.

INSURANCE, INDEMNITY, WAIVER OF SUBROGATION

AND FIRE PROTECTION

16.1 Tenant Indemnity . Tenant shall, subject to the provisions of Section 16.4, defend, indemnify and save harmless Landlord, its trustees, directors, officers, agents and servants, from and against all Claims: (a) arising from or out of any occurrence in, upon or at the Leased Premises during the Term of this Lease, or the occupan cy or use by Tenant of the Leased Premises or the Common Facilities or any part thereof, except to the extent the same is caused by the willful misconduct or gross negligent act or omission of Landlord, its agents, employees or contractors; or (b) occasion ed wholly or in part by any negligent act or omission of Tenant, its agents, employees, servants, subtenants, lessees or concessionaires. If any action or proceeding is brought against Landlord, its officers, agents or servants by reason of any of the afo rementioned causes, Tenant, upon receiving written notice thereof from Landlord in the manner prescribed herein, agrees to defend such action or proceeding by adequate counsel at its own expense. Nothing in this section is intended or shall be construed as waiving, limiting or restricting application of the Government Claims Act to any Claims brought against the Landlord as a government a uthority, nor any of the governmental immunities enjoyed by Landlord, its officers, and employees under California law.

16.2 Tenant Insurance. In order to protect the Landlord and its employees, agents, officers and elected officials (collectively, “Landlord Indemnified Parties”) against any and all claims and liability for death, injury, loss and damage resulting from Tenant’s actions in connection with this Lease, the Leased Premises , or the Project, Tenant shall secure and maintain the insurance coverage, described in and req uired by this section. Tenant shall pay any deductibles and self - insured retentions under all insurance policies issued in satisfaction of the terms of this Lease.

Tenant shall maintain all insurance policies as set forth in this Section for the entire te rm of this Lease, with the exception of those policies relating to design and construction of the Project which shall be maintained until issuance of the final certificate of occupancy for the Project (“Certificate of Occupancy”).. Such liability insurance may be maintained as part of or in conjunction with any other liability insurance coverage carried by the Tenant. (a) Workers’ Compensation Insurance. Tenant shall submit written proof that Tenant is insured against employer’s liability for workers’ compen sation in accordance with the provisions of Section 3700 of the Labor Code. Said policy shall provide for indemnification of the employer against direct or contingent loss or liability for damages for bodily and personal injury or disease of an employee. Said policy shall provide coverage in the minimum liability limits of $1,000,000 per accident for bodily injury and disease. By executing this Lease, Tenant makes the following certification, required by Section 1861 of the Labor Code:
“I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisions of that cod e, and I will comply with such provisions before commencing the performance of the work of the Lease.”

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Tenant shall require each contractor and sub -contractor performing work on the Project to provide workers’ compensation coverage for all of such contract or’s or sub - contractor’s employees, unless the contractor’s or sub-contractor’s employees are covered by workers’ compensation insurance provided by Tenant. If any class of employees engaged in work or services performed in connection with the Project is n ot covered by Labor Code Section 3700, Tenant shall provide and/or require each contractor or sub - contractor to provide adequate workers’ compensation insurance covering such employees.

Each workers’ compensation policy procured pursuant to this Section s hall contain a full waiver of subrogation clause in favor of the Landlord Indemnified Parties. (b) Commercial General Liability Insurance and Property Damage . Tenant shall submit written proof that Tenant has a standard comprehensive general public liability and property damage policy or policies, including general liability, liquor liability, automobile liability, in protection of the Tenant and Landlord and their respective officers, agents and employees as a dditional insureds under the policy or policies. Said policy or policies shall provide for indemnification of said parties against direct or contingent loss or liability for damages for bodily and personal injury, death or property damage occasioned by re ason of the use or operation of the Leased Premises . Said policy or policies shall provide coverage in the minimum liability limits of $20,000,000 for personal injury or damage to property resulting from each accident or event. The general aggregate limit shall be not less than Forty Million Dollars ($40,000,000) unless a Twenty Million Dollars ($20,000,000) per location aggregate limit is provided by separate endorsement.

Such public liability and property damage insurance may, however, be in the form o f a single limit policy covering all such risks in an amount equal to the aggregate minimum liability limits set forth herein . The Landlord, its officers, officials, employees, and volunteers are to be covered as additional insureds on the policy with resp ect to use or operation of the Leased Premises, including materials, parts, or equipment furnished in connection with such use or operation. General liability coverage can be provided in the form of an endorsement to the Tenant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 , CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used).
(c) Architectural / Engineering Services. If Tenant hires a consultant to provide design servic es, such as architectural or engineering services in connection with the Project, or any portion of the Project, Tenant shall require each such consultant to provide Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in connection with, the performance of such design services, with limits of not less than TWO MILLION DOLLARS ($ 2,000,000) per incident and not less than TWO MILLION DOLLARS ($2,000,000) aggregate.
(d) Hazard Insurance. Throughout the Term of this Lease, Tena nt shall maintain a policy or policies of insurance against loss or damage to the Project resulting from fire, lightning, vandalism, malicious mischief and such perils ordinarily defined as “extended coverage ” in the full replacement value of the Project , excluding flood and earthquake; provided, however, that an earthquake and flood rider shall be purchased for the Property if such coverage is available at a reasonable cost. This policy or policies may be in the form of a builder’s risk policy providing coverage in an amount not less than the

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construction costs expended for the Project until such time as the Project is complete and available for use and occupancy and thereafter shall be maintained in an amount not less than the full replacement value of th e Project and shall name the Landlord as additional insureds and the Trustee for the Bonds as loss payee under the policy or policies. The term “full replacement value” as used in this section shall mean the actual replacement cost of the improvements loc ated on the Leased Premises (including the cost of restoring the surface of the Leased Premises, but excluding the cost of restoring trees, plants and shrubs). (e) Renters Interruption Insurance. The Tenant shall maintain rental interruption insurance with respect to the Project in an amount not less than the maximum scheduled Improvement Rent payable in any twenty-four month period during the Term hereof due with respect to the Project, to insure against loss of rental income from the Project caused by perils covered by the hazard insurance required to be maintained as provided in Section 16.2(d). Such insurance shall be obtained not later than thirty (30) days prior to the first Improvement Rent payment.
(f) Builders Risk Insurance. During the construction of the Project and pending issuance of a Certificate of Occupancy for the Project, Tenant shall maintain Builder’s Risk Insurance to be written on an All Risk Completed Value form, in an aggregate amount equal to 100% of the completed insurable value of the Project or portion of the Project on which such contractor is performing work and shall name the Trustee for the Bonds as loss payee under the policy or policies.
(g) Contractors and Subcontractor Insurance. During the construction of or improvements to the Project, Tenant shall require that each contractor performing work on the Project maintain the following insurance coverage, as specified below, at all times during the performance of said work, or Tenant shall provide for such contractors “wrap” coverage, as specified below, at all times during the performance of said work: (i) Each general contractor and each sub -contractor shall maintain Commercial General Liability Insurance with limits of not less than ONE MILLION DOLLARS ($1,000,000) per occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate to protect Tenant during the construction of the Project from claims involving bodily injury and/or death and damage to the property of others; and (ii) Each general contractor and each sub-contractor shall maintain Automobile Liability Insurance against claims of personal injury (including bodily injury and death) and property damage covering all owned, leased, hired and non - owned vehicles used in the performance of the contractor’s obligations with minimum limits for bodily injury and property damage of ONE MILLION DOLLARS ($1,000,000) each occurrence. Such automobile liability insurance shall be provided by a business or commercial vehicle policy.
(h) Personal Property or Renters Insurance. Tenant shall maintain per sonal property or renters insurance during the term of this Agreement, in an aggregate amount equal to 100% of the replacement value of Tenant’ s Property and Tenant’s IP stored or kept on the Leased Premises.

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(i) General Insurance Provisions.
(i) Any insurance coverage required under this Lease shall be written on an occurrence basis. The applicable certificate of insurance must clearly provide that the coverage is on an “occurrence” basis. The requirements of this Section shall survive any expiration or termination of this Lease and the recordation of any Certificate of Completion.
(ii) Receipt by Landlord of evidence of insurance that does not comply with the above requirements shall not constitute a waiver of the insurance requirements of this Lease.
(iii) All of the insurance coverage required under this Section shall be maintained by Tenant or its contractors, as required by the terms of this Lease, and shall not be reduced, modified, or canceled without, at least, thirty (30) days prior written notice to Landlord. Also, phrases such as “endeavor to” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company” shall not be included in the cancellation wording of any certificates of insurance or any coverage for the Addit ional Insureds. Tenant shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non-renewed, or whose policy limits are exhausted or upon insolvency of the insurer that issued the policy.
(iv) All insurance to be obt ained and maintained by Tenant under this Section shall be issued by a company or companies listed in the then current “Best’s Key Rating Guide” publication with a minimum of an “A-7” rating. (v) Landlord will not accept self -insurance in satisfaction of the insurance requirements of this Section.
(vi) All insurance obtained and maintained by Tenant in satisfaction of the requirements of this Lease shall be primary to and not contributing to any insurance maintained by the Additional Insureds.
(vii) Insurance coverage in the minimum amounts set forth in this Section shall not be construed to relieve Tenant of any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude the Additional Insureds from taking such other actions as are available to them under any other provision of this Lease or otherwise at law.
(viii) Failure by Tenant to maintain all insurance coverage required by this Section in effect shall be an event of default by Tenant. Landlord, at its sole option, may exercise any remedy available to them in connection with such an event of default. Alternatively, Landlord may, at its sole option, purchase any such required insurance coverage and Landlord shall be entitled to immediate payment from Tenant for any premiums and associated costs paid by Landlord for such insurance coverage. Any election by Landlord to purchase or not to purchase insurance

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otherwise required to be carried by Tenant shall not relieve Tenant of its obligation to obtain and maintain the insurance coverage required by this Lease.

16.3 Payment of Insurance Proceeds. Proceeds of any policies of liability insurance required above shall be applied toward extinguishment or satisfaction of the liability with respect to which the insurance proceeds shall have been paid , and during the Initial Fixed Term shall be governed by and applied as required by the Facility Lease and Indenture.

16.4 Cooperation. Each Party shall cooperate with the other Party, each at their own expense, in filing any proof of loss with respect to any insurance policy maintained pursuant to this Article and in the prosecution or defense of any prospective or pending condemnation proceeding with respect to the Project or any portion thereof.

16.5 Liability Insurance; Landlord Gross Negligence. Landlord will, subject to Section 16.6, indemnify and save harmless Tenant, its officers, agents and servants, from and against all Claims in connection with loss of life, bodily injury and/or damage to property occasioned wholly or in part by any willful misconduct or gross negligent act or o mission of Landlord, its agents, employees or servants. If any action or proceeding is brought against Tenant, its agents or servants by reason of any of the aforementioned causes, Landlord, upon receiving written notice thereof from Tenant in the manner provided herein, agrees to defend such action or proceeding by adequate counsel at its own expense. Landlord agrees to insure the foregoing obligation by contractual endorsement under a commercial general public liability policy (including personal injury and property damage and which may be a blanket policy) to be maintained by Landlord (on which Tenant is named as an additional insured) with single limits of not less than $2,000,000. Landlord shall provide Tenant certificates of insurance from Landlord’s insurer on ACORD 25 or equivalent evidencing that the insurance so required to be maintained by Landlord is in full force and effect at all times. Landlord agrees that any policy of insurance hereunder shall provide that it will not terminate or expire, or be amended to reduce the amount or scope of the coverage provided thereby, except upon ten (10) days’ prior written notice to Tenant. Nothing in this section is intended or shall be construed as waiving, limiting or restricting application of the Government Claims Act to any Claims brought against the City, nor any of the governmental immunities enjoyed by the City, its officers, and employees under California law.

16.6 Waiver of Subrogation . Landlord hereby releases Tenant and Tenant hereby releases Landlord from any and all liability for loss, damage or injury to the property of the other in or about the Leased Premises or the Project which is caused by or results from a peril or event or happening which is covered by insurance actually carried and in force at the time of the loss by the party sustaining such loss; provided, however, that such waiver shall be effective only to the extent permitted by the insurance covering such loss and to the extent such insurance is not prejudiced.

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Article 17.

LEASEHOLD MORTGAGES
This Article shall only apply in the event that (i) the Bonds do not issue, or (ii) following the Initial Fixed Term, expiration of the Facility Lease, and full repayment of outstanding Bonds under the terms of the Indenture.

17.1 Rights to Mortgage Lease . Tenant, and its permitted successors and assigns shall have the right to mortgage and pledge its interest in this Lease (“ Leasehold Mortgage ”), only in accordance with and subject to the terms and conditions of this Article 17. Any Leasehold Mortgage shall be subject and subordinate to the rights of Landlord hereunder and to the Landlord’s fee interest in the Leased Premises. The holder of a Leasehold Mortgage is referred to herein as a “Leasehold Mortgagee”.

17.2 Requirements. If Tenant, or Tenant ’s successors or assigns, mortgage this Lease in compliance with the provisions of this Article 17, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(a) Notice. Landlord shall give to each Leasehold Mortgagee a copy of each Notice which it gives to Tenant pursuant to this Lease. Landlord shall provide such Notices in the manner required by Section 2 1.2 and shall be sent to the addressees designated by such Leasehold Mortgagee from time to time. No Notice delivered to Tenant shall be effective until a copy thereof has been delivered to each Leasehold Mortgagee. (b) Cure and Exercise of Tenant’s Rights . Each Leasehold Mortgagee shall have the right to perform any covenant or agreement under this Lease to be performed by Tenant, and Landlord shall accept such performance by any Leasehold Mortga gee as if performed by Tenant. Each Leasehold Mortgagee shall have the right to cure Tenant’s defaults within the thirty (30) day period (or such longer period of time as is reasonably required to cure such default if Leasehold Mortgagee commences the cure within such 30- day period and thereafter diligently prosecutes such cure) following the expiration of Tenant’s cure period applicable to such default set forth in Article 20. (c) Termination of Lease . If Landlord intends to terminate this Lease due to Tenant’s default pursuant to Section 2 0.1, Landlord shall first notify every Leasehold Mortgagee of such intention at least fifteen (15) Business Days in advance of the proposed effective date for such te rmination. A Leasehold Mortgagee shall have the right to postpone the date on which this Lease would so terminate for a period of thirty (30) days or for such longer period of time as is reasonably required to obtain possession of the Leased Premises and cure Tenant’s default, provided that such Leasehold Mortgagee shall have (i) given to Landlord written notice of its intention to cure all defaults susceptible of cure by such Leasehold Mortgagee, (ii) cured all defaults, if any, then existing which may be cured by the payment of a sum of money (excepting obligations of Tenant to discharge liens, charges or encumbrances against Tenant’s leasehold estate), and (iii) initiated, and be diligently pursuing, steps to acquire the leasehold estate by foreclosure of its Leasehold Mortgage or otherwise.

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(d) Replacement of Lease. If this Lease shall be terminated pursuant to Section

20.2, Landlord promptly shall notify each Leasehold Mortgagee of such termination. No later than sixty (60) days after request by the Leasehold Mortgagee having the most senior lien priority, Landlord shall enter into a replacement lease for the Leased Premises with said Leasehold Mortgagee (or its nominee or designee). Such replacement lease shall (i) have the same priority as this Lease, (i i) be for the remainder of the Term, (iii) have the same terms and conditions contained in this Lease (but shall include the right to assign, without Landlord’s consent, the tenant’s leasehold interest thereunder), and (iv) grant to or confirm in such Leasehold Mortgagee or its nominee or designee the same interest (as an owner or tenant) in and to the Improvements as previously held by Tenant under this Lease.

The foregoing right to obtain a replacement lease is contingent upon such Leasehold Mortgagee paying to Landlord all sums then due by tenant under this Lease. (e) Rights of Leasehold Mortgagee to Take Possession . Any Leasehold Mortgagee shall have the right, in the event of a default under the agreements governing its Leasehold Mortgage, if allowed by la w and its agreements with Tenant, to take possession of the Leased Premises.
(f) Rights and Obligations of Leasehold Mortgagees Upon Foreclosure. If (i) a Leasehold Mortgagee shall obtain possession of the Leased Premises by foreclosure or other enforcement pr oceeding under any Leasehold Mortgage or by obtaining an assignment of the leasehold estate in lieu of foreclosure or through settlement of or arising out of any pending or threatened foreclosure proceeding, (ii) a lease assumption agreement shall be delivered to Landlord by such Leasehold Mortgagee in possession or its designee, regarding covenants and conditions contained in this Lease on Tenant’s part to be performed (other than any covenant not susceptible of performance by any person other than Tenant (a “ Personal Covenant ”)), and (iii) such Leasehold Mortgagee shall have complied with all obligations on Tenant’s part to be performed under this Lease (other than any Personal Covenant), including the curing of all defaults susceptible of being cured by such Leasehold Mortgagee, then (A) all defaults not susceptible of being cured by such Leasehold Mortgagee shall be deemed waived and all rights of Tenant under this Lease shall be deemed reinstated, and (B) notwithstanding any provision in this Lease to th e contrary, such Leasehold Mortgagee or other person or any of their respective designees or nominees and their respective successors and assigns shall have the further right to assign, from time to time, the leasehold estate without Landlord’s consent.

Article 18.

TENANT COVENANTS AGAINST DISCRIMINATION
Tenant shall comply with the following covenants and restrictions at all times during the performance of this Lease:

18.1 Obligation to Refrain from Discrimination. Tenant for itself, its successors and assigns to all or any part or portion of the Leased Premises and/or th e Project, covenants and agrees that there shall be no discriminatio n against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Leased Premises nor shall Tenant, itself or any person claiming under or through it, establish or permit any such practice or

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practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Leased Premises. With respect to familial status, this Section 18.1 shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in this Section 22.1 shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code relating to housing for senior citizens. Subdivision (d) of Section 51 and Sections 4760 and 6714 of the Civil Code and Subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to this Section 22.1. The covenant of this Section 22.1 shall run with the land of the Leased Premises and shall be enforceable against Tenant and its successors and assigns in perpetuity.

18.2 Form of Non -Discrimination and Non -Segregation Clauses . Tenant for itself, its successors and assigns to all or any part or portion of the Leased Premises and/or the Project, covenants and agrees that:
(a) Tenant, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Leased Premises (or any portion thereof) on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. With respect to familial status, this Section

18.2 shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial st atus, nothing in this Section

18.2 shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code relating to housing for senior citizens. Subdivision (d) of Section 51 and Sections 4760 and 6714 of the Civil Code and Sub divisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to this Section. (b) All deeds, leases or contracts pertaining to occupancy of the Property shall contain or be subject to substantially the following non-discrimination or non-segregation covenants.
(c) In deeds: “The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or th rough it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.

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(n), (o), and (p) of Section 12955 of the Government Code shall apply to foregoing paragraph.”
(d) In leases: “The lessee herein covenants by and for itself, its successors and assigns, and all persons claimin g under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, mar ital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such pr actice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sub-lessee, sub-tenants, or vendees in the premises herein leased.

Notwithstanding the foregoing paragraph, with respect to familial status, the foregoing paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the foregoing paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code relating to housing for senior citizens. Subdivision (d) of Section 51 and Sections 4760 and 6714 of the Civil Code and Subdivisions (n), (o), and (p) of Section 12955 of the Go vernment Code shall apply to the foregoing paragraph.”
(e) In contracts pertaining to occupancy: “There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the sele ction, location, number, use, or occupancy, of tenants, lessees, sub -lessees or sub-tenants of the premises h erein transferred. The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument.

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acknowledge and agree that the covenants of this Section 18.2 shall not apply to vendors or any other person not permanently occupying the Property.

Article 19.

ESTOPPEL; ATTORNMENT AND SUBORDINATION

19.1 Estoppel Certificate. Each party ag rees, within ten (10) Business Days after request by the other party, to execute, acknowledge and deliver to and in favor of the proposed holder of any Mortgage or purchaser of the Leased Premises, the Common Facilities or the Development, or any proposed Permitted Transferee or assignee or sublessee of Tenant, an estoppel certificate in such form as Landlord may reasonably require, but stating no less than: whether this Lease is in full force and effect; whether this Lease has been modified or amended and , if so, identifying and describing any such modification or amendment; the date to which rent and any other charges have been paid; and whether such party knows of any default on the part of the other party or has any claim against the other party and, if so, specifying the nature of such default or claim. Concurrently with the execution of this Lease, or with Tenant’s consent, within fifteen (15) days thereafter, Landlord shall deliver at Tenant’s request an estoppel statement from any party under any license, easement, declaration, reciprocal easement agreement, or similar agreement that affects the Leased Premises, confirming that said agreements are in full force and effect for the benefit of Tenant, and that there are no defaults thereunder.

19.2 Attornment by Tenant . Tenant shall, in the event any proceedings are brought for the foreclosure of, or in the event of the exercise of the power of sale under, any Mortgage prior in lien to this Lease made by Landlord, attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as Landlord under this Lease in accordance with an SNDA executed by Landlord’s mortgagee and Tenant in accordance with this Section 19.2.

19.3 Subordination/Non-Disturbance. Upon request of the holder of any Mortgage, Tenant will subordinate its rights under this Lease to the lien thereof and to all advances made or hereafter to be made upon the security thereof, and Tenant sha ll execute, acknowledge and deliver an instrument effecting such subordination; PROVIDED, HOWEVER, Tenant’s obligation to (a) subordinate its rights under this Lease to the lien of any holder of a Mortgage and (b) execute and deliver such instrument shall be conditioned upon Landlord obtaining and delivering to Tenant, in recordable form, from the holder of any Mortgage to which this Lease is to become subordinate a subordination, non-disturbance, and attornment agreement reasonably acceptable to Tenant (an “SNDA”) containing a covenant binding upon the holder thereof to the effect that as long as Tenant is not in default under this Lease, this Lease shall not be terminated or modified in any respect whatsoever, nor shall the rights of Tenant hereunder or it s occupancy of the Leased Premises be affected in any way by reason of such Mortgage or any foreclosure action or other proceeding that may be instituted in connection therewith, and that, except to the extent that the holder of such Mortgage is required to do so to effectively foreclose such Mortgage, Tenant shall not be named as a defendant in any such foreclosure action or other proceeding. In addition, if there is any existing financing as of the date of this Lease, then an SNDA shall be executed and r ecorded in the real estate records of the applicable county prior to the expiration of the Inspection Period.

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Article 20.

DEFAULT AND REMEDIES

20.1 Tenant Default; Cure Rights; Landlord’s Remedies. If (a) Tenant fails to pay any Rent hereunder within ten (10) Business Days after notice of default, or (b) Tenant fails to perform or observe any of the other covenants, terms, provisions or conditions on its par t to be performed or observed under this Lease within thirty (30) days after notice of default (or if more than thirty (30) days shall be reasonably required because of the nature of the default, if Tenant shall fail to consummate within such 30-day period and thereafter proceed diligently to complete the cure of such default after such notice); then, Landlord may at any time thereafter exercise any of the following rights and remedies:
(a) Sue for Delinquent Rent. If Tenant has failed to pay Rent when the same is due under this Lease, and such failure is not cured within the cure period provided in this Lease, Landlord may, with or without re -entering and retaking possession of the Leased Premises, sue for all Rent due from Tenant to Landlord hereunder as s uch Rent becomes due under this Lease, plus interest at the Default Rate on all past due amounts calculated from the date Rent was due until paid in full.
(b) Retake and Relet the Leased Premises . Landlord may, pursuant to written notice thereof to Tenant and without terminating this Lease, (i) peaceably or pursuant to appropriate legal proceedings, re -enter and retake possession of the Leased Premises for the account of Tenant, (ii) make such repairs to the Leased Premises as may be reasonably necessary in order to relet the same or any part thereof, and (iii) relet or attempt to relet the Leased Premises or any part thereof for such term, at such rents and upon such other provisions as Landlord may deem appropriate in its reasonable discretion. Upon any such reletting by Landlord, all rents received by Landlord from such reletting shall be applied, (w) first, to the payment of all reasonable costs and expenses of recovering possession of the Leased Premises, (x) second, to the payment of all reasonable costs and expenses of such reletting, including attorneys’ fees and the cost of any repairs reasonably required for such reletting; (y) third, to the payment of all Rent due and unpaid under this Lease, and (z) fourth, the residue, if any, shall be held by Landl ord and applied in payment of future Rent as the same may become due and payable by Tenant hereunder. If the rents received from such reletting during any period shall be less than that required to be paid as and when due under this Lease, Tenant shall pa y any such deficiency to Landlord as Rent becomes due under this Lease.
(c) Terminate the Lease and Retake the Leased Premises . Landlord may, pursuant to written notice thereof to Tenant, terminate this Lease and, peaceably or pursuant to appropriate legal proceedings, re-enter and retake possession of the Leased Premises for Landlord’s own account and, for Tenant’s breach of and default under this Lease, recover immediately from Tenant the following (i) all Rents accrued as of such termination, (ii) all reasonable costs and expenses of recovering possession of the Leased Premises, and (iii) all reasonable costs and expenses of reletting the Leased Premises, including attorneys’ fees and the cost of any repairs reasonably required for such reletting. (d) Limitation of Remedies. Notwithstanding anything in this Section 20.1 or this Lease to the contrary , following the Initial Fixed Term (and full repayment of the

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Bonds) and during any Option Period(s) , Landlord shall in no event be entitled to the remedy of acceleration of rents.
(e) Enforcement. In the event of a failure to comply with the provisions of this Agreement by Tenant, and following notice and an opportunity to cure as outlined above, then Landlord may, without further notice, bring an action to specifically enforce the obligations of Tenant under this Lease , the rights of Landlord under this Lease, and the remedies of Landlord under this Section 21.1.

20.2 Landlord Default; Cure Rights . If Landlord fails to perform or observe any of the material covenants, terms, provisions or conditions on its part to be performed or observed under this Lease within (i) ninety (90) days during the Initial Term, or (ii) thirty (30) days during any Renewal Term, after notice of material default (or if more than ninety (90) days or thirty (30) days, as applicable, shall be reasonably required because of the nature of the default, if Landlord shall fail to proceed diligently to cure such default after such notice), then Tenant may immediately or at any time thereafter, in addition to any other rights and remedies as may otherwise be provided in this Lease for a Landlord default, pursue all rights and remedies it may have at law and equity generally including, without limitation, the right to cure Landlord’s default, if cureable by Tenant and recover the cost of cure from Landlord, with interest at the Default Rate . However, Tenant agrees that it shall not exercise the remedy of terminating the Lease during the Initial Fixed Term unless and until (a) Landlord has failed to cure its default and (b) Tenant has given notice to the Trustee under the Bond Indenture for the Bonds and such Trustee has failed to cure Landlord’s default within thirty (30) days following Tenant’s notice is given to the Trustee.

Article 21.

MISCELLANEOUS

21.1 Lease Not to be Recorded Without Consent. Upon request of Landlord or Tenant, the parties hereto shall promptly execute and deliver a memorandum of this Lease for recording purposes in substantially the same form as attached hereto as Exhibit F. The party requesting that the memorandum of this Lease be recorded shall pay all recording fees. Neither party may record this Lease without the consent of the other party.

21.2 Notices. All notices, consents, requests, approvals and authorizations (collectively, “Notices”) required or permitted under this Lease shall only be effective if in writing. All Notices (except Notices of default, which may only be sent pursuant to the methods described in (A) and (B) below) shall be sent (A) by registered or certified mail (return receipt requested), postage prepaid, or (B) by Federal Express, U.S. Post Office Express Mail, or similar nationally recognized overnight courier which delivers only upon signed receipt of the addressee, or (C) by e -mail with a copy sent within 24 hours in the manner provided in clause (B) above, and addressed as follows or at such other address, and to the attention of such other person, as the parties shall give notice as herein provided:

If intended for Landlord: City of Montebello – City Hall 1600 W. Beverly Blvd.

Montebello, CA 90640
Attn: City Manager

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E-mail:

[email protected]

With a copy to: Alvarez-Glasman & Colvin
13181 Crossroads Pkwy, North Tower –
Suite 400
City of Industry, CA 91746
ATTN: Arnold M. Alvarez-Glasman

If intended for Tenant: Topgolf USA MB, LLC
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
Attn: Elizabeth E. Bonesio, Esq.

E-mail: [email protected]
Attn: Jonathan Olsen, Esq.

E-mail: [email protected]

With a copy to: [Tenant’s Leasehold Mortgagee (if
any)]

A notice sent pursuant to clauses (A) through (C) above shall be deemed to be duly received when delivered; provided that if a notice, request or other communication is served by hand or is received by e-mail on a day which is not a Business Day, or after 5:00 p.m. local time on any Business day at the addressee’s location, such notice or communication shall be deemed to be duly received by the recipient at 9:00 a.m. local time of the addressee on the first Business Day thereafter. Rejection or other refusal to accept or the inability to deliver because of changed address of which no Notice was given shall be deemed to be rece ipt of the Notice as of the date of such rejection, refusal or inability to deliver.

21.3 Waiver of Performance and Disputes . One or more waivers of any covenant, term or condition of this Lease by either party shall not be construed as a waiver of a subsequent breach of the same or any other covenant, term or condition, nor shall any delay or omission by either party to seek a remedy for any breach of this Lease or to exercise a right accruing to such party by reason of such breach be deemed a waiver by such party of its remedies or rights with respect to such breach.

21.4 Modification of Lease. The terms, covenants and conditions hereof may not be changed orally, but only by an instrument in writing signed by the party against whom enforcement of the change, modification or discharge is sought.

21.5 Lease Binding on Successors and Assigns, etc .. Except as herein otherwise expressly provided, all covenants, agreements, provisions and conditions of this Lease shall be binding upon and inure to the benefit of the parties hereto and their heirs, devisees, executors, administrators, successors in interest and assigns as well as grantees of Landlord, and shall run with the land.

Without limiting the generality of the foregoing, all rights of Tenant under this Lease may be granted by Tenant to any permitted sublessee of Tenant, subject to the terms of this Lease.

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21.6 Brokers. Landlord shall pay Tenant’s brokers (The Retail Connection, L.P. and Epsteen & Associates) a total cash commission equal to two percent (2%) of the portion of the Base Rent (but not the Improvement Rent) payable during the Initial Fixed Term of this Lease .

Notwithstanding the foregoing, in no event shall the foregoing commission exceed the total amount of FIVE HUNDRED FIFTY THOUSAND DOLLARS ($550,000.00). The commission shall be paid in full following Tenant’s receiving a Certificate of Occupancy for the Project from Landlord. The Parties acknowledge and agree that there are no other brokers involved in this Lease, and that the sole and only commissions payable in connection with this Lease shall be to The Retail Connection, L.P. and Epsteen & Associates.

21.7 Governing Law . This Lease and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. All legal actions brought to enforce the terms of this Lease shall be brought and heard in the Superior Court of the State of California, County of Los Angeles.

21.8 Estoppel. Landlord and Tenant each confirm and agree that (a) it has read and understood all of the provisions of this Lease; (b) it is an experienced real estate investor and is familiar with major sophisticated transactions such as that contemplated by this Lease; (c) it has negotiated with the other party at arm’s length with equal bargaining power; and (d) it has been advised by competent legal counsel of its own choosing.

21.9 Severability. If any provisions of this Lease are determined to be invalid by a court of competent jurisdiction, the balance of this Lease shall remain in full force and effect, and such invalid provision shall be construed or reformed by su ch court in order to give the maximum permissible effect to the intention of the parties as expressed therein.

21.10 Landlord and Tenant. Nothing contained in this Lease shall be deemed or construed by the parties hereto or by any third party to create the relationship of principal and agent or of partnership or of joint venture or of any association whatsoever between Landlord and Tenant.

Each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Lease. The parties agree that the financial relationship between Landlord and Tenant in connection with the Project shall be the relationship of lessor and lessee and Tenant shall have no direct liability in connection with the Bonds.

21.11 Authority. The persons executing this Lease on behalf of Tenant and Landlord covenant and warrant to the other party that (a) they are duly authorized to execute this Lease on behalf of the party for whom they are acting, and (b) the execution of this Lease has been duly authorized by the party for whom they are acting.

21.12 Time is of the Essence. Time is of the essence with respect to the performance of each of the terms, provisions, covenants and conditions contained in this Lease. If the expiration of any time period set forth in this Lease (e.g., the Inspection Period) falls on a day which is not a Business Day, such period shall be extended until and expire on the next day which is a Business Day.

21.13 Consent. The parties agree to act in good faith and with fair dealing with one another in the execution, performance and implementation of the terms and provisions of this Lease.

Whenever the consent, approval or other action of a party is required under any provision of this Lease, such consent, approval or other action shall not be unreasonably withheld, delayed or

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conditioned by a party unless the provision in question expressly authorizes such party to withhold or deny consent or approval or decline to take action in accordance with a different standard.

21.14 Attorneys’ Fees . In case suit is brought because of the breach of any agreement or obligation contained in this Lease on the part of Tenant or Landlord to be kept or performed, and a breach is established, the prevailing party shall be entitled to recover all expenses incurred in connection with such suit, including reasonable attorneys’ fees.

21.15 Entire Agreement. Except for any other Project Agreements, this Lease constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings between the Parties. There are no agreements or understandings between the Parties and no representations by either Party to the other as an inducement to enter into this Lease, except as expressly set forth herein. The Development Agreement shall terminate upon execution of this Lease.

21.16 Counterparts. This Lease may be executed at different times and in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Lease by e-mail shall be as effective as delivery of a manually executed counterpart of this Lease.

21.17 Rules of Construction . The following rules of construction shall be applicable for all purposes of this Lease, unless the context otherwise requires:
(a) The terms “hereby,” “hereof,” “hereto,” “herein,” “hereunder” and any similar terms shall refer to this Lease, and the term “hereafter” shall mean after, and the term “heretofore” shall mean before, the date of this Lease. (b) Words of the masculine, feminine or neuter gender shall mean and include the correlative words of the other genders a nd words importing the singular number shall mean and include the plural number and vice versa.
(c) The terms “include,” “including” and similar terms shall be construed as if followed by the phrase “without being limited to.”
(d) This Lease shall be construed as a whole according to its fair language and common meaning to achieve the objective and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interp reting this Lease, both parties having been represented by counsel in the negotiation and preparation hereof.

21.18 Prohibited Persons.
(a) Landlord and Tenant each represent and warrant to the other that it is not, and shall not during the Construction Term and the Term of this Lease become, a person or entity with whom the other party is restricted from doing business under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H. R. 3162, Public Law 107 -56 (commonly known as the “ USA Patriot Act ”) and Executive Order Number 13224 on Terrorism Financing, effective

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September 24, 2001 and regulations promulgated pursuant thereto, including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List (collectively, “Prohibited Persons”). (b) Landlord and Tenant each represent and warrant to the other that, to the best of its knowledge, it is not currently engaged in any transactions or dealings, or otherwise associated with, any Prohibited Persons in connection with the use or occupancy of the Leased Premises. Landlord and Tenant each agree that it will not, during the Construction Term and the Term of this Lease, engage in any transactions or dealings, or be otherwise associated with, any Prohibited Persons in connection with the use or occupancy of the Leased Premises.

21.19 Ongoing Access and Inspection Rights. Tenant shall permit Landlord and its authorized representatives to enter the Project at all reasonable times upon 48 hours’ prior notice (except in the event of an emergency, in which no prior notice is required prior to ent ry) for the purposes of (a) serving or posting or keeping posted thereon notices required or permitted by Law, (b) conducting periodic inspections, or (c) performing any work thereon required or permitted to be performed by Landlord pursuant to this Lease.

21.20 Unavoidable Delay . Performance by any Party of its obligations hereunder shall be excused during any period of Unavoidable Delay, as hereinafter defined, provided that the Party claiming the delay gives notice of t he delay to the other Parties within thirty (30) days after the commencement of same has been ascertained. For purposes hereof, “ Unavoidable Delay” shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay, including, without limitation: (a) act of God; (b) civil commotion or act(s) of terrorism; (c) riot; (d) strike, picketing or other labor dispute; I shortage of materials or supplies; (f) damage to work in progress by reason of fire, flood, earthquake or other casualty; (g) failure, delay or inability of Landlord to provide adequate levels of public services, facilities or infrastructure to the Property including, by way of example only, the lack of water to serve any portion of the Property due to drought; (h) delay caused by the acts or failure to act of governmental entities; (i) epidemic or pandemic; or (j) litigation brought by a third party attacking the validity of this Lease or any other action necessary for development of the Project. The condition of the world, country, state or local economy shall not constitute an Unavoidable Delay.

21.21 Guaranty. This Lease is conditioned upon the simultaneous execution and delivery to the Landlord of the Guaranty of Topgolf International Inc., in the form attached hereto as Exhibit H.

Except as otherwise may be released by the Landlord, the Guaranty shall survive and remain in full force for the Initial Fixed Term of this Lease, regardless of whether this Lease is earlier terminated by the Parties, unless the termination is for a material breach of this Lease by Landlord.

21.22 No Publicity; Confidentiality . Any information provided by Tenant to Landlord, including pro formas and other financial projections (whether in written, graphic, electronic or any other form) that is clearly marked as “CONFIDENTIAL/PROPRIETARY INFORMATION” (“Confidential Information”) shall be subject to the provisions of this Section. Landlord shall use good faith diligent efforts to prevent disclosure of the Confidential Information to any third parties, except as may be required by the California Public Records Act (Government Code Section 6253 et seq.) or other applicable local, state or federal disclosure law (collectively, “Public Disclosure Laws”). Notwithstanding the preceding sentence Landlord may disclose Confidential Information

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to its officials, employees, agents, attorneys and advisors, but only to the extent necessary to carry out the purpose for which the Confidential Information was disclosed. In the event that any third party, other than the parties mentioned in the immediately preceding sentence, requires Confidential Information in order to negotiate and finalize the Project Agreements, Landlord shall notify Tenant of the request, as well as the identity of and contact information for such third party and within a reasonable time after receiving such notice and negotiation and execution of a confidentiality agreement between Tenant and such third party, Tenant shall disclose the requested Confidential Information to such third party. Tenant acknowledges that Landlord has not made any representations or warranties that any Confidential Information Landlord receives from Tenant will be exempt from disclosure under any Public Disclosure Laws. In the event the City Attorney determines that the release of the Confidential Information is required by Public Disclosure Laws, or order of a court of competent jurisdiction, Landlord shall notify Tenant of Landlord’s intention to release the Confidential Information at its earliest reasonable opportunity, so that Tenant will have the opportunity to legally challenge such release. If the City Attorney, in his discretion, determines that only a portion of the requested Confidential Information is exempt from disclosure under the Public Disclosure Laws, Landlord may, with notification to an agreement by Tenant, redact, delete or otherwise segregate the Confidential Information that will not be released from the non-exempt portion to be released.
(a) Authorized Use . Tenant acknowledges that in connection with the City Council’s consideration of any Project Agreement as contemplated by this Lease and any consideration by bond financing, Landlord will need to present a summary of Tenant’s financial projections, including anticipated costs of development, anticipated Project revenues, and returns on cost and investment, in a format that is acceptable to both the Landlord and Tenant.
(b) Litigation. If any litigation is filed seeking to make public any Confidential Information, Landlord and Tenant may mutually agree in writing to defend the litigation, and if the Parties agree to defend the litigation, Tenant shall pay the Landlord’s reasonable costs of defending such litigation and shall indemnify Landlord against all costs and attorneys’ fees awarded to the plaintiff in any such litigat ion.

Alternatively, Tenant may elect to disclose the Confidential Information rather than defend the litigation. Tenant’s indemnity obligations under this Section 21.22(b) shall survive the expiration or termination of this Lease.
(c) Limitations. The restrictions set forth herein shall not apply to Confidential Information to the extent such Confidential Information: (1) is now, or hereafter becomes, through no act or failure to act on the part of Landlord, generally known or available to the publi c; (2) is known by Landlord at the time of receiving such information as evidenced by Landlord’s public records; (3) is hereafter furnished to Landlord by a third party, as a matter of right and without restriction on disclosure; (4) is independently developed by Landlord without any breach of this Lease and without any use of or access to Tenant’s Confidential Information as evidenced by the Tenant’s records; or (5) is the subject of a written permission to disclose provided by Tenant to Landlord.

21.23 Waiver o f Trial By Jury . TO THE FULLEST EXTENT PERMITTED BY LAW,

TENANT AND LANDLORD HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,

PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO

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AGAINST THE OTHER IN ANY MATTERS ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT’S USE AND

OCCUPANCY OF THE PROJECT OR THE DEVELOPMENT, AND ANY CLAIM OF INJURY OR DAMAGE.

21.24 Public Benefit. During the Term, Tenant shall offer Montebello high school golf teams free golf Monday through Thursday between the hours of 9am and 5pm, together with a ten percent (10%) play discount to veterans and active -duty military, fire, police and EMS personnel. In addition, the Project shall provide discounted rates for Landlord-affiliated/sponsored events in an amount not to exceed twenty percent (20%) of Tenant’s advertised rates from time to time. Tenant cannot show preference in hiring; but, agrees to h ost one (1) or more job fairs or “Mission Ambition” mass hiring events in the City at such time as Tenant commences hiring for the operation of the Project.

21.25 Defense of Actions. In the event of any court action or proceeding challenging the validity of this Lease, any of the Project Approvals, or any action referenced herein and taken in furtherance of the Project, each Party may, at the sole cost and expense of the subject Party, including but not limited to their own respective court costs and attorneys, defend or otherwise participate in such action or proceeding. Each Party shall cooperate with the other Party in any such defense as a Party may reasonably request; however , Landlord may resolve or settle such challenge in any manner determined by Landlord to be appropriate, in Landlord’s sole and absolute discretion without the agreement or approval of Tenant; provided t hat the foregoing shall not (i) result in any financial cost to Tenant or (ii) require any change in the design of the Project or Tenant’s operation plan for the Project. Additionally, in the event of any litigation or referendum initiated by third parties to attack, set aside, modify, void or annul this Lea se or any action taken in furtherance hereof, the term of this Lease shall be tolled for the period during which such challenge is proceeding until fully and finally resolved.

21.26 Processing. Landlord hereby agrees that it will not unreasonably withhold or unreasonably condition any discretionary action or approval which may be issued by Landlord in order for the Project to proceed, provided that Tenant reasonably and satisfactorily complies with all preliminary procedures, act ions, payments of processing fees, and criteria generally required of developers by Landlord for processing applications for developments and consistent with this Lease.

21.27 Other Governmental Permits . Landlord agrees to cooperate with Tenant in Tenant’s endeavors to obtain permits and approvals as may be required from other governmental or quasi - governmental agencies having jurisdiction over the Leased Premises or portions thereof (such as, for example, without limitation, public utilities or utility districts and agencies having jurisdiction over transportation facilities and air quality issues), so long as the cooperation by Landlord will not require Landlord to incur any cost, liability or expense without adequate indemnity against or right of reimbursement therefor from Tenant.

21.28 Full Disclosure. Tenant is required to make full disclosure to Landlord of its principals; officers; major stockholders, partners or members; joint venturers; and its directly involved negotiators, development managers, consultants and managerial employees. Tenant shall notify the City Manager of any material change i n the structure of Tenant. Tenant shall make and

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maintain full disclosure to Landlord of its proposed methods of financing to be used in development of the Project. Final approval of financing will be addressed in the Project Agreements and the Planning Approvals.

21.29 Required Actions of Parties: Further Assurances . Landlord and Tenant shall execute all such instruments and documents and take in good faith all actions necessary or convenient to consummate the transactions herein contemplated.

21.30 Conflict of Interest. No member, official or employee of either Party has any conflict of interest, direct or indirect, related to this Lease, the Leased Premises, or the development or operation of the Project within the meaning of applicable federal, state and local conflict of interest laws, including the Political Reform Act (Gov. Code, § 81000 et seq.) and California Government Code Section 1090.

21.31 Non-liability of Landlord, Officers, Employees . No member, official or employee of Landlord shall be personally liable to Tenant, or any successor in interest of Tenant, in the event of any default or breach by Landlord under this Lease or for any amount that may become due to Tenant or to its successor, or on any obligations under the terms of this Lease, except as may arise from the gross negligence or willful acts of such member, official or employee.

21.32 Constructive Notice and Acceptance . Every person who, now or hereafter, owns or acquires any right, title or interest in or to any portion of the Leased Premises is, and shall be, conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Lease is contained in the instrument by which such person acquired an interest in the Leased Premises.

21.33 No Third-Party Beneficiaries. This Lease is made and entered into for the sole protection and benefit of the parties and their mortgagee(s), successors and assigns. No other person or entity shall have any right of action based upon any provision of this Lease.

21.34 Incorporation of Exhibits . All rec itals and attachments to this Lease, including all Exhibits referenced herein, and all subparts thereto, are incorporated herein by this reference.

21.35 Survival. The provisions of this Article 2 1 shall survive the expiration or the earlier termination of this Lease. Upon the expiration or earlier termination of this Lease, Landlord and Tenant shall have no further obligations to each other except for those obligations which expressly survive such expiration or termination pursuant to this Section 21.35 and the further provisions of this Lease. Those provisions which survive the expiration or termination of this Lease shall survive for a period of twelve (12) months. Upon termination of this Lease, Rent shall be equitably adjusted as of the date of termination.
[signature page follows]

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Signature Page

28144059/204265.0002
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly executed as of the day and year first above written.

LANDLORD:

CITY OF MONTEBELLO
By:

City Manager
ATTEST:

By:

City Clerk

Approved as to form:

By:

City Attorney
TENANT:

TOPGOLF USA MB, LLC,
a Delaware limited liability company
By:

Name:

Title:

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A-1

28144059/204265.0002

EXHIBIT A
Legal Description of the Leased Premises

IN THE CITY OF MONTEBELLO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BEING THAT PORTION OF LOT "A" OF TRACT No. 10034, AS PER MAP RECORDED IN BOOK 146, PAGES 51 THROUGH 57 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT THE NORTHWEST CORNER OF LOT 91 OF SAID MAP, THEN CE ALONG THE NORTH LINE OF LOT "A" OF SAID MAP, SOUTH 89°40'45" WEST, 901.01 FEET TO ANGLE POINT THEREIN; THENCE CONTINUING ALONG SAID NORTH LINE, SOUTH 89°07'30" WEST, 383.41 FEET; THENCE LEAVING SAID NORTH LINE THE FOLLOWING SEVENTEEN (17) COURSES:

1. SOUTH 00°05'03" EAST, 206.05 FEET;

2. SOUTH 70°42'16" EAST, 436.40 FEET;

3. NORTH 89°54'57" EAST, 167.83 FEET;

4. SOUTH 00°05'03" EAST, 87.75 FEET;

5. NORTH 89°54'57" EAST, 6.00 FEET;

6. SOUTH 00°05'03" EAST, 2.32 FEET TO THE BEGINNING OF A CURVE, CONC AVE EASTERLY, HAVING A RADIUS OF 94.00 FEET;

7. SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 28°22'12" AN ARC LENGTH OF 46.54 FEET;

8. SOUTH 28°27'15" EAST, 64.17 FEET TO THE BEGINNING OF A CURVE, CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 64.00 FEET;

9. SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 61°37'48" AN ARC LENGTH OF 68.84 FEET;

10. NORTH 89°54'57" EAST, 97.89 FEET TO THE BEGINNING OF A CURVE, CONCAVE NORTHERLY, HAVING A RADIUS OF 464.00 FEET;

11. EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 13°26'29" AN ARC LENGTH OF 108.85 FEET;

12. NORTH 76°28'28" EAST, 471.61 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 306.00 FEET;

13. EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18°56'08" AN A RC LENGTH OF 101.13 FEET;

14. NORTH 05°30'41" EAST, 114.50 FEET;

15. NORTH 05°56'38" WEST, 243.30 FEET TO THE SOUTHEAST CORNER OF LOT 93 OF SAID MAP;

16. ALONG THE SOUTH LINES OF LOTS 93, 92, AND 91 OF SAID MAP SOUTH 89°40'45" WEST, 150.00 FEET TO THE SOUTHWEST CORNER OF SAID LOT 91;

17. ALONG THE WEST LINE OF SAID LOT 91, NORTH 00°19'15" WEST, 100.00 FEET TO THE POINT OF BEGINNING.

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Depiction of Leased Premises

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EXHIBIT A-1

Plans and Specifications

On file with the City’s Engineering Department, located at 1600 W. Beverly Blvd, City of Montebello, CA, 90640, with the final Plans and Specifications dated _____________, 2022.

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EXHIBIT B
Description and Depiction of the Development

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EXHIBIT C
Construction Budget
[TO BE ADDED]

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EXHIBIT D
Material Terms of Development Declaration

The following list is only a representative list of material terms for the Development Declaration, and is not intended to be an exhaustive list of such terms:
 Access to Project via the Driveway – rights of Parties’ to the Driveway.

 Use of detention pond and storm drain facilities

 Use of the Parking Lot – rights of Parties’ regarding the parking lot on the western portion of the Project (“Parking Lot”).

 Use of off-site signage and easements related thereto

 Exclusivity

 Landscaping and irrigation

 List of Common Facilities

 Landlord obligation to maintain Common Facilities

 Landlord obligation to maintain all properties within the Development as first-class property and not to sell or lease to deep discount, bargain, fire sale or thrift business, or a business of a sexually oriented nature, per Section 8.6

 Common Facilities Expense and any other common area maintenance costs

 Landlord shall not enter into, amend, or provide a waiver under any license, easement, declaration, reciprocal easement agreement, or similar agreement that affects the Leased Premises without Tenant’s prior written consent

 Landlord hereby grants Tenant the right to enforce on its behalf the cross-easement rights, operating covenants and other rights benefitting the Leased Premises which are contained in any license, easement, declaration, reciprocal easement agreement, or similar agreement that affects the Leased Premises.

 Landlord shall promptly provide to Tenant a copy of any notice of default or notice of termination received by Landlord in connection with any license, easement, declaration, reciprocal easement agreement, or similar agreement that affects the Leased Premises

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EXHIBIT E
Common Facilities
Improvement Construction/Cost
Responsibility
Maintenance Cost
Responsibility

• Street Improvements and Streetscape

 Irrigation for landscaping

Landlord

Landlord
Landlord 100%
Landlord 100%
• Storm Drain Detention Facilities on TG
Parcel

Landlord 20%
Topgolf 80%
Topgolf 100%
• Storm Drain Detention Facilities off-site

Landlord Landlord 100%

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EXHIBIT F
Memorandum of Lease
AFTER RECORDING, RETURN TO:
_____________________
_____________________
_____________________
________________________________________________________________________

MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made and entered into by and between _____________________________________, a ______________________________________ ("Landlord"), and Topgolf USA ______________, LLC, a Delaware limited liability company ("Tenant") to be effec tive as of the latest date set forth next to the signature blocks below (the "Effective Date").

RECITALS
Landlord leases to Tenant, and Tenant leases from Landlord, that certain real property (the “Leased Premises”) located in the City of Montebello, Los Angeles County, California and more particularly described on Exhibit A -1 and depicted on Exhibit A -2 together with the non - exclusive use of all rights, privileges, easements, and appurtenances belonging or in any way pertaining thereto, and together with any building or other improvements erected and/or to be erected thereon, TO HAVE AND TO HOLD the same for an Initial Fixed Term of twenty (20) years (commencing as provided in the Lease described hereafter), with thirteen (13) renewal terms of five (5) years each, all pursuant and subject to the terms, conditions, and stipulations contained in that certain Sublease dated as of the Effective Date, as that term is defined therein (the "Lease") by and between Landlord and Tenant, to which reference is made for all purposes of which it is intended hereby to give notice.

Easement. [Insert Paragraph _______ upon final negotiation of Lease] Permitted Use. [Insert Paragraph ______ upon final negotiation of Lease] Exclusive Use. [Insert Paragraph_____ upon final negotiation of Lease] Capitalized terms used in this Memorandum of Lease shall have the meanings ascribed to such terms in the Lease unless otherwise expressly defined herein.

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This Memorandum of Lease is not intended to alter or supersede the Lease, and in the event of any conflict between this Memorandum of Lease and the Lease, the provisions of the Lease shall control.
[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum of Lease to be effective as of the latest of the dates set forth below (previously defined as the "Effective Date").

LANDLORD:

CITY OF MONTEBELLO
Date:

By:

City Manager
ATTEST:

By:

City Clerk

Approved as to form:

By:

City Attorney

TENANT:

Topgolf USA MB, LLC,
a Delaware limited liability company

Date:

By:

Name:

Its:

Landlord's Address: _______________________________

Attn:

Tenant's Address: Topgolf USA MB, LLC
8750 N. Central Expressway
Suite 1200
Dallas, TX 75231

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Attention: Legal Dept.

ACKNOWLEDGMENT

STATE OF __________ §
§
COUNTY OF ________ §

This instrument was acknowledged before me on this ___ day of ______________, 20_, by __________________________________, ________________________________, of ____________________________, a ______________________________, on behalf of said entity.

NOTARY PUBLIC, STATE OF _________

My Commission Expires:

STATE OF §
§
COUNTY OF §

This instrument was acknowledged before me on this ___ day of ______________, 20_, by ________________________________, the _____________________________ of ___________________________________, a Delaware corporation, on behalf of said limited liability company.

NOTARY PUBLIC, STATE OF _________

My Commission Expires:

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EXHIBIT A-1
(to Memorandum of Lease)

Legal Description

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EXHIBIT A-2
(to Memorandum of Lease)

Site Plan

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EXHIBIT G
Memorandum of Term Commencement

AFTER RECORDING, RETURN TO:
_____________________
_____________________
_____________________
_____________________

MEMORANDUM OF TERM COMMENCEMENT
THIS MEMORANDUM OF TERM COMMENCEMENT (the “Memorandum”) is made as of the_____ day of ________ ________, 20__, by and between the City of Montebello, a California general law city, (“Landlord”) and Topgolf USA MB, LLC, a Delaware limited liability company (“Tenant”).

AGREEMENT

1. Pursuant to that certain Sublease dated as of ________________, 20___ (the “Lease”), between Landlord and Tenant, Landlord leased to Tenant and Tenant leased from Landlord certain premises located on certai n real property in the City of Montebello, Califor nia, as more particularly described in the Lease (the “ Premises ”).

2. The Lease is for an initial term of twenty (20) years commencing on ________, 20____ and expiring on ___________________, 20_____ (the “ Expiration Date ”), unless extended in accordance with the Lease.

3. All of the other terms and conditions of the Lease are more fully set forth in the Lease and are incorporated herein by this reference.

4. This Memorandum shall inure to the benefit of and be binding upo n Landlord and Tenant and their respective representatives, successors and assigns.

IN WITNESS WHEREOF, Landlord and Tenant have caused this Memorandum of Term Commencement to be duly executed as of the day and year first above written.

LANDLORD: TENANT:
________________, a ___________
By: ________________________________
Name: ______________________________
Title: _______________________________
Topgolf USA MB, LLC, a Delaware, LLC
By: ________________________________
Name: _____________________________
Title: ______________________________

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EXHIBIT H

GUARANTY

FORM OF RENT GUARANTY
THIS GUARANTY OF LEASE (this “Guaranty”) is made as of ____________, 2022, by TOPGOLF INTERNATIONAL INC., a Delaware corporation (the “ Guarantor”), whose address is as set forth in Section 15 hereof, in favor of CITY OF MONTEBELLO, a California municipal corporation, and its successor and assigns (“Landlord”).

WHEREAS, Landlord and TOP GOLF USA MB, LLC, a Delaware limited liability company (“Tenant”) desire to enter into that certain Sublease dated as of _________ _ 1, 2022 (the “Lease”), the terms and conditions of which Lease are hereby incorporated by reference, concerning approximately ____ [acres/square feet] of land and improvements thereon located adjacent to the Montebello Municipal Golf Course (the “Premises”); and WHEREAS, Guarantor has a financial interest in the Tenant; and WHEREAS, Landlord would not execute the Lease if Guarantor did not execute and deliver to Landlord this Guaranty.

NOW, THEREFORE, for and in consideration of the execution of the foregoing Lease by Landlord and as a material inducement to Landlord to execute said Lease, Guarantor hereby jointly, severally, absolutely, presently, continually, unconditionally and irrevocably guarantees to Landlord and Landlord’s successors and as signs the prompt payment by Tenant of all rentals and other sums payable by Tenant under said Lease and the faithful and prompt performance by Tenant of each and every one of the other material terms, conditions and covenants of said Lease to be kept and performed by Tenant (collectively, the “Obligations”), for a term commencing on the effective date of the Lease and ending when all Obligations of the Tenant accruing during the Initial Fixed Term of the Lease (excluding any extensions thereof exercised by Tenant pursuant to Section 4.2 of the Lease).

Guarantor further agrees as follows:

1. It is specifically agreed and understood that the terms, covenants and conditions of the Lease may be altered, affected, modified, amended, compromised, released or other wise changed by agreement between Landlord and Tenant or by course of conduct, and Guarantor does guaranty and promise to perform all of the obligations of Tenant under the Lease as so altered, affected, modified, amended, compromised, released or changed and the Lease may be assigned by or with the consent of Landlord or any assignee of Landlord without consent or notice to Guarantor and that this Guaranty shall thereupon and thereafter guaranty the performance of said Lease as so changed, modified, amende d, compromised, released, altered or assigned.

2. This Guaranty shall not be released, modified or affected by failure or delay on the part of Landlord to enforce any of the rights or remedies of Landlord under the Lease, whether pursuant to the terms thereof or at law or in equity, or by any release of any person liable under the terms of the Lease (including, without limitation, Tenant) or any other guarantor, including without limitation, any other Guarantor named herein, from any liability with respect to Guarantor’s obligations hereunder.

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3. Guarantor’s liability under this Guaranty shall continue until all Obligations which accrue during the Initial Fixed Term under the Lease have been paid in full in cash and until all other obligations to Landlord which accrue during the Initial Fixed Term under the Lease have been satisfied, and shall not be reduced by virtue of any payment by Tenant of any amount due under the Initial Fixed Term under the Lease. If all or any portion of Tenant’s obligations under the Lea se is paid or performed by Tenant, the obligations of Guarantor hereunder shall continue and remain in full force and effect in the event that all or any part of such payment(s) or performance(s) is avoided or recovered directly or indirectly from Landlord as a preference, fraudulent transfer or otherwise.

4. On request by Landlord from time to, Guarantor agrees to provide Landlord with a current balance sheet for Guarantor; provided, however, that Guarantor shall not be obligated to provide its balance sheet to Landlord more than twice each year. In addition, if Landlord requests a balance sheet as of the end of a fiscal quarter, Landlord agrees that Guarantor will have a minimum of sixty (60) days after the end of such fiscal quarter in which to provide th e balance sheet. Finally, if Landlord requests a balance sheet as of the end of a fiscal year, Landlord agrees that Guarantor will have a minimum of ninety (90) days after the end of such fiscal year to provide the balance sheet . Guarantor's balance sheets financial statement are to be prepared in accordance with generally accepted accounting principles (“ GAAP”). Guarantor represents and warrants that all such balance sheets shall be true and correct statements , in all material respects, of Guarantor's financial condition.

5. INTENTIONALLY DELETED

6. INTENTIONALLY DELETED

7. Guarantor warrants and represents to Landlord that Guarantor now has and will continue to have full and complete access to any and all information concerning the Lease, the value of the assets owned or to be acquired by Tenant, Tenant’s financial status and its ability to pay and perform the obligations owed to Landlord under the Lease. Guarantor further warrants and represents that Guarantor has reviewed the Lease and is fully informed of the remedies Landlord may pursue against Tenant, in the event of an event of default under the Lease. So long as any of the Guarantor’s obligations hereunder remains unsatisfied or owing to Landlord, Guarantor shall keep fully informed as to all aspect s of Tenant’s financial condition and the performance of said obligations.

8. Guarantor hereby covenants and agrees with Landlord that if an event of default shall at any time occur in the payment of any sums due under the Lease by Tenant during the Initial Fixed Term or in the performance of any other obligation of Tenant under the Lease during the Initial Fixed Term , Guarantor shall and will forthwith upon demand pay such sums and any arrears thereof, to Landlord in legal currency of the United States of America for payment of public and private debts, and take all other actions necessary to cure such event of default and perform such obligations of Tenant.

9. The liability of Guarantor under this Guaranty is a guaranty of payment and performance and not of coll ectability, and is not conditioned or contingent upon the genuineness, validity, regularity or enforceability of the Lease or the pursuit by Landlord of any remedies which it now has or may hereafter have with respect thereto, at law, in equity or otherwise.

10. Guarantor has been advised of and hereby waives and agrees not to assert or take advantage of to the extent permitted by law: (i) all notices to Guarantor, to Tenant, or to any other person, including, but not limited to, the creation, renewal, extension, assignment, modification or accrual of any of the obligations owed to Landlord under the Lease and, except to the extent set forth in this Section 10, enforcement of any right or remedy with respect thereto, and notice of any other matters relating the reto; (ii) notice of acceptance of this Guaranty; (iii) demand of payment, presentation and protest; (iv) any right to require Landlord to apply to any default any security deposit or other security it may hold under the Lease; (v) any statute of limitatio ns affecting Guarantor’s liability hereunder or the enforcement thereof; (vi) any right or defense that may arise by reason of the incapability, lack of authority, death or disability of Tenant

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or any other person; (vii) all principles or provisions of law which conflict with the terms of this Guaranty, and (viii) any other rights and defenses that are or may become available to Guarantor by reason of Sections 2787 through 2855, inclusive, of the California Civil Code. Guarantor agrees that Guarantor’s obligations shall not be affected by any circumstances which constitute a legal or equitable discharge of a guarantor or surety.

11. No notice of default need be given to Guarantor, it being specifically agreed and understood that the guarantee of the undersigne d is a continuing guarantee throughout the Initial Fixed Term and under which Landlord may proceed forthwith and immediately against Tenant or against Guarantor following any breach or default by Tenant of its Obligations pursuant to or under the terms of the Lease during the Initial Fixed Term, after the passage of any applicable notice and cure periods under the terms of the Lease.

12. Guarantor agrees that Landlord may enforce this Guaranty without the necessity of proceeding against Tenant or any other gua rantor. Guarantor hereby waives the right to require Landlord to proceed against Tenant, to proceed against any other guarantor, to exercise any right or remedy under the Lease or to pursue any other remedy or to enforce any other right. Guarantor may be joined in any action or proceeding commenced by Landlord against Tenant arising out of, in connection with, or based on the Lease.

13. Guarantor agrees that nothing contained herein shall prevent Landlord from suing on the Lease or from exercising any rights available to it thereunder during the Initial Fixed Term and that the exercise of any of the aforesaid rights shall not constitute a legal or equitable discharge of Guarantor.

Without limiting the generality of the foregoing, Guarantor has been advised of and hereby expressly waives any and all benefits under California Civil Code § § 2809, 2810, 2815, 2819, 2821, 2822, 2824, 2845, 2847, 2849, 2850, 2855, 2899 and 3433, and the second sentence of California Civil Code § 2822(a). In addition, Guarantor agr ees that Landlord (not Tenant) shall have the right to designate the portion of Tenant’s obligations under the Lease that is satisfied by a partial payment by Tenant. (a) Guarantor agrees that Guarantor shall have no right of subrogation against Tenant or any right of contribution against any other guarantor unless and until all amounts due under the Lease which accrued during the Initial Fixed Term have been paid in full and all other obligations under the Lease which accrued during the Initial Fixed Term have been satisfied. Guarantor further agrees that, to the extent the waiver of Guarantor’s rights of subrogation and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogati on Guarantor may have against Tenant shall be junior and subordinate to any rights Landlord may have against Tenant, and any rights of contribution Guarantor may have against any other guarantor shall be junior and subordinate to any rights Landlord may have against such other guarantor.
(b) The obligations of Guarantor under this Guaranty shall not be altered, limited or affected by any case, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangemen t of Tenant or any defense which Tenant may have by reason of order, decree or decision of any court or administrative body resulting from any such case. Landlord shall have the sole right to accept or reject any plan on behalf of Guarantor proposed in su ch case and to take any other action which Guarantor would be entitled to take, including, without limitation, the decision to file or not file a claim. Guarantor acknowledges and agrees that any payment which accrues with respect to Tenant’s obligations under the Lease (including, without limitation, the payment of rent) which accrue during the Initial Fixed Term and after the commencement of any such proceeding (or, if any such payment ceases to accrue by operation of law by reason of the commencement of such proceeding, such payment as would have accrued if said proceedings had not been commenced) shall be included in Guarantor’s obligations hereunder because it is the intention of the parties that said obligations should be determined without regard to any rule or law or order which may relieve Tenant of any of its obligations which accrue under the Lease during the Initial Term . Guarantor hereby permits any

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trustee in bankruptcy, receiver, and debtor -in-possession, assignee for the benefit of creditors or similar person to pay Landlord, or allow the claim of Landlord in respect of, any such payment accruing during the Initial Fixed Term and after the date on which such proceeding is commenced.

Guarantor hereby assigns to Landlord Guarantor’s right to r eceive any payments from any trustee in bankruptcy, receiver, debtor-in-possession, assignee for the benefit of creditors or similar person by way of dividend, adequate protection payment or otherwise.

14. Guarantor hereby agrees to indemnify, protect, defend and hold Landlord harmless from and against, all losses, costs and expenses including, without limitation, all interest, default interest, post- petition bankruptcy interest and other post -petition obligations, late charges, court costs and attorney s' fees, which may be suffered or incurred by Landlord in enforcing or compromising any rights under this Guaranty or in enforcing or compromising the performance of Tenant's obligations under the Lease which accrue during the Initial Fixed Term.

15. All notices, consents, requests, approvals and authorizations (collectively, “ Notices”) required or permitted under this Guaranty shall only be effective if in writing. All Notices shall be sent (A) by registered or certified mail (return receipt requeste d), postage prepaid, or (B) by Federal Express, U.S.

Post Office Express Mail, or similar nationally recognized overnight courier which delivers only upon signed receipt of the addressee, or (C) by e-mail with a copy sent within 24 hours in the manner provided in clause (B) above, and addressed as follows or at such other address, and to the attention of such other person, as the parties shall give notice as herein provided:

To Guarantor: TOP GOLF INTERNATIONAL INC.
c/o Topgolf USA MB, LLC
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
Attn: Legal Department
E-mail: DL-RELegal @topgolf.com

With copy to:

TOP GOLF INTERNATIONAL INC.
c/o Topgolf USA MB, LLC
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
Attn: Jonathan Olsen, Esq.

E-mail: [email protected]

To Landlord: City of Montebello – City Hall
1600 W. Beverly Blvd.,
Montebello, CA 90640
Attention: City Manager

With copy to:

Alvarez-Glassman & Colvin
13181 Crossroads Pkwy, North Tower, Suite
400
City of Industry, CA 91746
Attention: Arnold M. Alvarez-Glassman

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16. INTENTIONALLY DELETED.

17. Guarantor represents and warrants to Landlord as follows:
(a) The execution, delivery and performance by Guarantor of this Guaranty have been duly authorized by all necessary corporate action.
(b) Guarantor has the full power, authority and legal right to execute and deliver, and to perform and observe the provisions of, this Guaranty including the payment of all moneys hereunder. This Guaranty constitutes the legal, valid and bi nding obligation of Guarantor enforceable in accordance with its terms, except as enforcement thereof may be limited by (a) bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally or (b) the non-availability of equitable remedies which are discretionary with the courts. (c) No consent of any other person, including, without limitation, any creditors of Guarantor, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required by Guarantor in connection with this Guaranty or the execution, delivery, performance, validity or enforceability of this Guaranty and all obligations required hereunder. This G uaranty has been duly executed and delivered by Guarantor , and con stitutes the legally valid and binding obligation of Guarantor enforceable against such Guarantor in accordance with its terms. (d) The execution, delivery and performance of this Guaranty will not violate any provision of any existing law or regulation binding on Guarantor, or any order, judgment, award or decree of any court, arbitrator or governmental authority binding on Guarantor, or of any mortgage, indenture, lease, contract or other agree ment, instrument or undertaking to which Guarantor is a party or by which Guarantor or any of Guarantor’s assets may be bound, and will not result in, or require, the creation or imposition of any lien on any of Guarantor’s property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract, or other agreement, instrument or undertaking.
(e) To the actual knowledge of the undersigned, all information and documentation provided by Tenant or Guarantor to Landlord regarding the financial condition of Guarantor is true, correct, complete, and not misleading in any material respect as of the date such information was provided to Landlord and as of the date hereof.
(f) Neither the execution or delivery of this Guaranty, nor the consummation of the transactions herein contemplated, nor the compliance with the terms and provisions hereof, conflict or will conflict with or result in a breach of any of t he terms, conditions or provisions of any law, order, writ, injunction or decree of any court or Governmental Authority, or of any agreement or instrument to which Guarantor is a party of by which it is bound, or constitutes or will constitute a default thereunder.

18. Except as set forth in Section 9.3 and further provisions of the Lease, this Guaranty shall be binding upon Guarantor, Guarantor’s heirs, representatives, administrators, executors, successors and assigns and shall inure to the benefit of and sha ll be enforceable by Landlord, its successors, endorsees and assigns. As used herein, the singular shall include the plural, and the masculine shall include the feminine and neuter and vice versa, if the context so requires.

19. The term “Landlord” whenever used herein refers to and means the Landlord specifically named in the Lease and also any assignee of said Landlord, whether by outright assignment or by assignment for security, and also any successor to the interest of said Landlord or of any assignee in the Lease or any part thereof, whether by assignment or otherwise.

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20. The term “ Tenant” whenever used herein refers to and means the Tenant in the Lease specifically named and also any assignee or sublessee of said Lease and also any successor to the interests of said Tenant, assignee or sublessee of such Lease or any part thereof, whether by assignment, sublease or otherwise.

21. In case suit is brought because of the breach of any agreement or obligation contained in this Guaranty, and a breach is established, the prevailing party shall be entitled to recover all expenses incurred in connection with such suit, including reasonable attorneys’ fees.

22. Any action to declare or enforce any rights or obligations under this Guaranty may be commenced by Landlord in the Superior Court of the county in which the Premises is situated. Guarantor hereby consents to the jurisdiction of such court for such purposes and agrees that any notice, complaint or other legal process therein may be delivered to Guarantor in accordance with the above notice provisions and that any notice, complaint or other legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction of such court for purposes of adjudicating any matter related to this Guaranty.

23. TO THE EXTENT ALLOWED BY APPLICABLE LAW, GUARANTOR AND LANDLORD

HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM

OR THEIR HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS M AY HAVE TO A

TRIAL BY JURY IN RESPECT TO ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION

WITH THIS GUARANTY OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN

CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. If the jury waiver set forth in this section is not enforceable, then any claim or cause of action arising out of or relating to this Guaranty shall be resolved by judicial reference pursuant to Code of Civil Procedure Section 638 et seq. before a referee sitting without a jury, such referee to be mutually acceptable to the parties or, if no agreement is reached, by a referee appointed by the Presiding Judge of the Superior Court of the county in which the Premises is situated. This section shall not restrict Landlord from exercising pre -judgment remedies under applicable law.

24. This Guaranty shall be governed and construed in ac cordance with the laws of the State of California.

25. Every provision of this Guaranty is intended to be severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable.

26. This Guaranty may be executed in any number of counterparts each of which shall be deemed an original and all of which shall constitute one and the same Guaranty with the same effect as if all parties had signed the same signature page. Any signature page of this Guaranty may be detached from any counterpart of this Guaranty and re-attached to any other counterpart of this Guaranty identical in form hereto but having attached to it one or more additional signature pages.

27. No failure or delay on the part of Landlord to exercise any power, right or privilege under this Guaranty shall impair any such power, right or privilege, or be construed to be a waiver of any event of default or any acquiescence therein, nor shall any single or partial exercise of such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.

28. This Guaranty shall constitute the entire agreement between Guarantor and the Landlord with respect to the subject matter hereof. No provision of this Guaranty or right of Landlord hereunder may be waived nor may Guarantor be released from any obligation hereunder except by a writing duly executed by an authorized officer, director or trustee of Landlord.

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Montebello City CouncilSeptember 28, 2022

Montebello City Council
September 28, 2022