Lease
San Bernardino Economic
Development Corporation,
as Landlord
and
Regal Cinemas, Inc.,
as Tenant
San Bernardino, California
Dated the 4th day of January _, 2012
S:IWPFILES12707D14431Least-6(wms 11-16-11).doc
Table of Contents
ARTICLE 1: INTRODUCTORY PROVISIONS.. ... 1.1
Section 1.01: FUNDAMENTAL LEASE PROVISIONS 1.1
Section 1.02: REFERENCES AND CONFLICTS 1.2
Section 1.03: GENERAL DEFINITIONS 1.3
Section 1.04: EXHIBITS....... 1.5
Section 1.05: GLA OF THE PREMISES 1.5
Section 1.06: CHANGES TO CENTER. 1.5
Section 1.07: PARKING RETENTION AREAS 1.5
Section 1.08: WAGE REQUIREMENTS. 1.6
ARTICLE 2: PREMISES. .. 2.1
Section 2.01: LEASE OF PREMISES..... . 2.1
Section 2.02: TITLE AND SUITABILITY ..2.1
Section 2.03: SECURITY DEPOSIT.... ... 2.1
Section 2.04: TITLE CONTINGENCY ... 2.2
ARTICLE 3: CONSTRUCTION ... 3.1
Section 3.01: DEFINITIONS AND OVERVIEW.. .. 3.1
Section 3.02: DEVELOPMENT APPROVALS. ... 3.4
Section 3.03: PLANS... 3.4
Section 3.04: BUILDING PERMITS 3.5
Section 3.05: CONTINGENCIES .. 3.5
Section 3.06: LANDLORD'S WORK.. 3.6
Section 3.07: STAGING AREA... 3.6
3.6 Section 3.09: MECHANIC'S LIENS ... 3.7
Section 3.10: INSURANCE. 3.7
Section 3.11: ACCESS ... .. 3.7
Section 3.12: FORCE MAJEURE ...3.8
ARTICLE 4: TERM.. ... 4.1
Section 4.01: TERM OF THIS LEASE 4.1
Section 4.02: RENT YEAR. ....4.1
Section 4.03: OPTIONS TO EXTEND ... 4.1
Section 4.04: TERMINATION RIGHTS ... 4.1
ARTICLE 5: RENT.. .... 5.1
Section 5.01: RENT.. ... 5.1
Section 5.02: RENT COMMENCEMENT DATE
Section 5.03: BASE RENT OR SPECIAL RENT
Section 5.04: PERCENTAGE REN...........
Section 5.05: RENT PAYABLE TO AND WHERE
Section 5.06: LATE PAYMENT INTEREST 5.5
ARTICLE 6: TAXES AND ASSESSMENTS .... 6.1
Section 6.01: LANDLORD'S TAXES - 61
Section 6.02: TENANT'S TAXES.
ARTICLE 7: UTILITIES AND SERVICES. ... 7.1
Section 7.01: UTILITIES.
Section 7.02: CHARGES FOR UTILITY SERVICES FREE
Section 7.03: TRASH AND GARBAGE REMOVAL
Section 7.04: PARKING AREA LIGHTING.
S: WPFILES\2707D/443\Lease-6 (wms 11-16-1I).doc i
ARTICLE 8: USE OF PREMISES...... . 8.1
Section 8.01: USE AND TRADE NAME . 8.1
Section 8.02: HOURS.....
Section 8.03: OPERATIONAL REQUIREMENTS
Section 8.04: ALTERATIONS..
Section 8.05: SATELLITE DISHES ... 8.2
Section 8.06: PROXIMATE SALES.... ... 8.2
Section 8.07: OPENING AND CONTINUOUS OPERATION ... 8.3
ARTICLE 9: COMMON AREAS....... ....1
Section 9.01: USE OF COMMON AREAS - 31
Section 9.02: CAM OBLIGATION.....
ARTICLE 10: PROMOTION OF THEATRE. .. 10.1
Section 10.01: PROMOTION OF THEATRE .. 10.1
ARTICLE 11: INDEMNITY AND INSURANCE.. ... 11.1
Section 11.01: TENANT'S INSURANCE .. 11.1
Section 11.02: INDEMNITY…...... .. 11.1
Section 11.03: MUTUAL WAIVERS.. .. 11.2
Section 11.04: LANDLORD'S INSURANCE ... 11.2
ARTICLE 12: DAMAGE OR DESTRUCTION .. .. 12.1
Section 12.01: DUTY TO RECONSTRUCT FOLLOWING CASUALTY.. - 12.1 Section 12.02: DUTY TO REPAIR OR REPLACE EQUIPMENT..
Section 12.03: RIGHT TO TERMINATE... .. 12.1
Section 12.04: ABATEMENT OF RENT . 12.2
ARTICLE 13: MAINTENANCE OF THE THEATRE ... 13.1
Section 13.01: LANDLORD'S MAINTENANCE DUTY ... 13.1
Section 13.02: TENANT'S MAINTENANCE DUTY ..... .. 13.1
Section 13.03: RIGHT OF ACCESS TO THE PREMISES .. 13.2
ARTICLE 14: TENANT'S PROPERTY AND SIGNS.. ... 14.1
Section 14.01: TENANT'S PROPERTY ..14.1
Section 14.02: TENANT'S SIGNS ...... • 14.1
ARTICLE 15: ASSIGNMENT AND SUBLETTING .. ... 15.1
Section 15.01: ASSIGNMENT PERMITTED . 15.1
Section 15.02: CONSENT REQUIRED...... 15.1
Section 15.03: MERGER, CONSOLIDATION 15.2
Section 15.04: MORTGAGE OF LEASEHOLD . 15.2
Section 15.05: LICENSE 15.4
ARTICLE 16: DEFAULTS BY TENANT.. 16.1
Section 16.01: EVENTS OF DEFAULT. 16.1
Section 16.02: REMEDIES AND DAMAGES 16.1
Section 16.03: MITIGATION...... 16.1
Section 16.04: DEFAULT RATE... 16.2
ARTICLE 17: LIABILITY OF LANDLORD 17.1
Section 17.01: LANDLORD'S DEFAULT. 17.1
S:\PFILES12707D1443\Lease-6 (wms 11-16-11).doc ii
ARTICLE 18: NON-DISTURBANCE AGREEMENT .. 18.1
Section 18.01: SUBORDINATION OF LEASE .. 18.1
Section 18.02: TENANT'S ATTORNMENT... 18.1
Section 18.03: NON-DISTURBANCE AGREEMENT... 18.1
Section 18.04: INSTRUMENTS TO CARRY OUT INTENT .. 18.2
ARTICLE 19: ESTOPPEL CERTIFICATES. .... 19.1
Section 19.01: AGREEMENT TO DELIVER .. 19.1
ARTICLE 20: QUIET ENJOYMENT. .. 20.1
Section 20.01: QUIET ENJOYMENT
Section 20.02: TITLE REPORT, SURVEY & FLOOD PLAIN CERTIFICATE - 2011 ARTICLE 21: SURRENDER AND HOLDING OVER ...21.1
Section 21.01: DELIVERY AFTER TERM... - 31.1
Section 21.02: EFFECT OF HOLDING OVER.
ARTICLE 22: CONDEMNATION....... .. 22.1
Section 22.01: ALL OR ANY PART OF PREMISES TAKEN ... . 22.1 Section 22.02: TAKING OF PARKING SPACES .. 22.1
Section 22.03: OWNERSHIP OF AWARD.. ... 22.1
ARTICLE 23: MISCELLANEOUS...... ... 23.1
Section 23.01: INTERPRETATION .... .. 23.1
Section 23.02: LIABILITY OF LANDLORD . 23.1
Section 23.03: NOTICES.. .. 23.1
Section 23.04: SUCCESSORS ... 23.2
Section 23.05: BROKERS..... . 23.2
Section 23.06: UNAVOIDABLE DELAYS . 23.2
Section 23.07: SEVERABILITY.. • 23.2
Section 23.08: TIME OF ESSENCE.... .. 23.2
Section 23.09: APPLICABLE LAW.... .. 23.2
Section 23.10: WAIVER.. . 23.2
Section 23.11: RECORDING 23.3
Section 23.12: HAZARDOUS MATERIAL ... 23.3
Section 23.13: ENTIRE AGREEMENT.. . 23.5
Section 23.14: EXCLUSIVE RIGHT... ..23.5
Section 23.15: ATTORNEYS' FEES... 23.6
Section 23.16: LANDLORD MEANS OWNER... .. 23.6
Section 23.17: COVENANTS, CONDITIONS AND RESTRICTIONS .. 23.7 Section 23.18: ACCEPTANCE OF LESS THAN FULL PAYMENT .. 23.7 Section 23.19: MUTUAL EXECUTION .. 23.7
Section 23.20: COUNTERPARTS...... .. 23.7
EXHIBITS:
Exhibit A - LEGAL DESCRIPTION OF THE LAND (Section 1.03); Exhibit B - SITE PLAN OF THE CENTER [Section 1.03];
Exhibi LANDLORD OFTEN Section 3011;
Exhibit E - COMPLETION CERTIFICATE [Section 1.05];
Exhibit F - NON-DISTURBANCE AGREEMENT [Section 18.01];
Exhibit G- LANDLORD ESTOPPEL CERTIFICATE [Section 19.01]; Exhibit H- MEMORANDUM OF LEASE [Section 23.11];
Exhibit I - COMMON AREAS WORK SCHEDULE (Section 3.01);
Exhibit J-
Exhibit K - DCIP EQUIPMENT (Section 21.01].
S:1WPFILES12707D\443\Lease-6 (wms I1-16-11).doc
LEASE
2012 (the "Effective Date"),
DEVELOPMENT CORPORATION, corporatior
LANDLORD and TENANT have the following notice addresses on the Effective Date:
LANDLORD:
San Bernardino Economic Development
Corporation
Knoxville, Tennessee 37918
Telephone: 909-663-1044
Facsimile: 909-888-9413
Vith a copy to
lerbert S. Sanger, Jr., Esc
ARTICLE 1: INTRODUCTORY PROVISIONS
Section 1.01: FUNDAMENTAL LEASE PROVISIONS
The following fundamental lease provisions are presented in this Section to facilitate convenient reference by the parties, subject to further definition and elaboration in the respective referenced sections or elsewhere in this Lease.
Rent Term: Ten (10) Rent Years, with four (4) successive options to extend for five (5) Rent Years each, followed by one (1) option to extend for four (4) Rent Years, and subject to earlier termination as provided by this Lease. (Sections 4.01 and 4.03) Premises: A multiple-auditorium motion picture theatre building located as part of the Theatre Square in downtown San Bernardino, California, with the Premises (also referred ) as the "Theatre') to be remodeled as provided in this Lease so as to contain approximatel 0,200 gross square feet and approximately 65,791 leaseable square feet of main floor area, wil between approximately 3,000 and 3,400 auditorium seats within approximately fourteen (14) (Section 1.03G))
(c) GLA of the Premises: Approximately 65,791 square feet. (Section 1.05) (d) Security Deposit: None. (Section 2.03)
(f) Base Rent: The following amounts per Rent Year:
Rent Years 1 through 10: $850,000.00 per year, $70,833.33 per month S: WPFILES12707D1443\Lease-6 (wrs 11-16-11).doc 1.1
Rent Years 11 through 15: $920,250.00 per year, $76,687.50 per month Rent Years 16 through 20: $990,500.00 per year, $82,541.67 per month Rent Years 21 through 25: $1,060,750.00 per year, $88,395.83 per month Rent Years 26 through 30: $1,131,000.00 per year, $94,250.00 per month Rent Years 31 through 34: $1,201,250.00 per year, $100,104.17 per month. (Section 5.03)
Percentage Rent: Fifteen Percent (15%) of Gross Sales per Rent Year, payable only to the extent Fifteen Percent (15%) of Gross Sales per Rent Year exceeds the Base Rent payable for such Rent Year. (Section 5.04)
Additional Rent: None. Base Rent and Percentage Rent shall, together, be an all-in, gross rent. However, Special Rent may be payable in lieu of Base Rent and Percentage Rent, as provided in Section 5.03(c) and Section 5.03(d). (Section 5.01) (i) Permitted Use: The TENANT shall use the Premises solely for the operation of a first-class motion picture theatre, including the following: the operation of a video arcade with game machines for theatre patrons; the sale of popcorn, drinks, candy, specialty café items, and other foods and beverages sold in motion picture theatres; the sale and rental to theatre patrons of retail items, such as video cassettes, video discs, records, compact discs, dvds, books, magazines, Premises, including, without limitation, satellite dish transmission and reception facilities, telecommunications facilities and services, change machines, vending machines, automated teller machines and automated ticketing machines; depiction of advertising; meeting rooms; style shows; childcare services; live performances; presentations of concerts, sporting events, and simulcast events via satellite, hard lines and recorded transmissions; and sit-down restaurant or café use including, in accordance with applicable law, the sale of alcoholic beverages. The Permitted Use shall include such other components as may become appropriate due to changes in the circumstances of the motion picture theatre business. The Permitted Use is further subject to the provision that the Theatre shall not be used for display, presentation or advertisement of "X" rated or pornographic movies or presentations.
() Landlord's Maintenance and Repair: All structural components of the Theatre, ductwork and thermostats that are a part of the HVAC system; all plumbing and utility (including gas, electrical, water, sanitary sewer and storm drainage) lines, conduits and facilities serving the Theatre other than minor maintenance and repair which is TENANT's responsibility pursuant to this Lease; any vertical transpiration serving the Premises; and all other maintenance and repairs except such maintenance and repairs for which TENANT is expressly responsible pursuant to this Lease. (Section 13.01)
Tenant's Maintenance and Repair: Interior, non-structural elements of the and replacement of light fixtures, bulbs and ballasts within the Premises) pipes and lines located within the interior surface of the walls, ceilings and floors of the Theatre (but not between the interior and exterior walls, ceilings and floors). (Section 13.02) Section 1.02: REFERENCES AND CONFLICTS
References appearing in the Fundamental Lease Provisions (set forth in Section 1.01) are to designate some of the other places in this Lease where additional provisions appear. Each reference in this Lease to any of the Fundamental Lease Provisions of this Lease shall be construed to incorporate all of the terms of both those provided in the Fundamental Lease Provisions and elsewhere in this Lease applicable thereto. If there is any conflict between any of S:1WPFILES12707D/443\Lease-6 (wms 11-16-11).doc 1.2
the Fundamental Lease Provisions and any other provisions of this Lease, the other provisions of this Lease shall control.
Section 1.03: GENERAL DEFINITIONS
(a) The term "Center" means the "Theatre Square" entertainment and retail center in downtown San Berardino, California, located east of Interstate 215 on 4th Street and E Street.
The Center has been developed on the land owned by LANDLORD that is described on Exhibit A (the "Land"). A site plan showing the configuration of the Center is shown on Exhibit B (the "Site Plan"), and the Site Plan shows, without limitation, the location and configuration of the Premises, the Parking Retention Areas and the other Common Areas of the Center. the Theatre that is not within other leaseable space within the Center, including without limitation entrance areas, sidewalks, landscaping and curbing immediately adjacent to the Theatre, shall be deemed part of the Common Areas and not part of the Theatre. The contents, location and configuration of the Common Areas, once complete, shall be generally as shown on the Site Plan; provided, however, that the Common Areas of the Center may not be located precisely within the areas shown on the Site Plan, as LANDLORD may make changes to the Center as provided in Section 1.06.
The term "Development Agreement" means that certain Development Agreement between TENANT and the City of San Bernardino, California, a municipal corporation (the "City") dated on or about the Effective Date. LANDLORD and the San ernardino Economic Development Corporation, a California non-profit corporatio 'SBEDC", also joined in the execution of the Development Agreement. The Developmer Agreement has, or shall be, placed of record by the City. control of LANDLOT OF TE MANy, & there means any, aler beyond the reasonable, nterference by governmental authorities, civil disturbance, strikes, lockouts, labor dispute nability to procure labor or materials, failure of electric power, restrictive governmental laws o regulations, governmental intervention, riots, insurrection, war, fire, casualty, severe weather, acts of terrorism, and acts of God, subject to the provision that such party's lack of funds or the the Force Majeure Event, delivery of specific notice by the affected party shall not be required.
The term "Former Theatre Space" means the two areas immediately adjacent t he storefront of the Premises, which Former Theatre Space was comprising six (6) auditorium EFfective Date. The location odite Former heatieupace at exising tie shite Cater prior to the The term "GLA of the Center" means the sum of: (1) total square footage of the floor area of all of the leaseable spaces of the Center (but not including the square footage of the Premises) as measured from the outside of the exterior walls and doors (or the fences or S:IWPFILES12707D1443\Lcasc-6(wms 11-16-1l).doc 1.3
barricade in the case of leaseable or commercially usable areas enclosed by fence or similar barricade) and from the center of any interior demising walls, not including any mezzanines or balconies which are not used to display stock for sale and not otherwise open to customers, clients, guests, patrons or the public, and not including any areas and space defined herein as part of Common Areas; plus (2) the GLA of the Premises. From time to time during the Rent Term, LANDLORD may give TENANT written notice of the GLA of the Center, at a given time or for a given period of time, as such GLA of the Center may be revised because of expansions or other alterations of buildings within the Center.
The term "GLA of the Premises" means the total square footage of the main level footprint of the Premises as measured from the outside of exterior walls and doors and from the center of any interior demising walls, but not including (i) areas occupied by columns, escalators, elevators, stairways and emergency exit corridors; (ii) internal mezzanines (whether or not open to the general public), lobby areas necessary as a means of secondary access to larger auditoriums, the Theatre's upper level support areas, and other areas located on any upper level of the Theatre; (iii) any cold weather vestibule (if such area is reasonably determined by TENANT to be necessary and enclosed exit corridors and staircases; and (iv) any trash enclosure, trash compactor area or trash chute. The GLA of the Premises shall be determined as provided in Section 1.05.
The term "Initial Development Requirements" means occurrence and completion of all the following: (1) availability of all Parking Retention Areas for non-exclusive use by TENANT and the employees, customers, clients, guests, patrons and invitees of the Theatre, and availability of all vehicular and pedestrian ingress and egress throughout the Center from the surrounding public streets and sidewalks, all as reasonably determined by TENANT; (2) Substantial Completion of all Common Areas Work (defined in Section 3.01), so that the enter is completed as shown on the Site Plan and generally appears open for business to th eneral public, provides unobstructed access to the Premises and is reasonably clean, quiet an secure, all as reasonably determined by TENANT; and (3) Substantial Completion of all exterior Former Theatre Space Work (defined in Section 3.01), so that the Former Theatre Space Work generally appears available for use and is reasonably clean, quite and secure, all as reasonably determined by TENANT.
The term "Ongoing Development Requirements" means
Completion, opening and operation to the general public of at least two (2) full service or fast casual dining restaurants in the Former Theatre Space totaling at least two thousand five hundred (2,500) square feet of floor area, as measured consistent with the definition of GLA of the Center. Notwithstanding the foregoing, in the event the Ongoing Development Requirements are not satisfied solely due to the closure of a restaurant that was previously operating in the Center, the Ongoing Development Requirements shall be deemed to continue to be satisfied for a period of six (6) months after closure of such restaurant, to allow LANDLORD a six (6) month period to locate a new restaurant tenant, negotiate a new restaurant lease and complete any required improvements to the restaurant space.
The terms "Theatre" and "Premises" are interchangeable, and each means the nultiple-auditorium motion picture theatre building located as part of the Center, to be remodeled as provided in this Lease so as to contain approximately 70,200 gross square feet anc approximately 65,791 leaseable square feet of main floor area, with between approximately 3,000 and 3,400 auditorium seats within approximately fourteen (14) auditoriums. The Premises includes any fixtures and equipment owned by LANDLORD and existing in the Theatre as of the Rent Commencement Date ("Landlord's Equipment"), provided that TENANT shall have the right to remove any or all of such Landlord's Equipment as part of Tenant's Work and have the right to remove any or all of such Landlord's Equipment during the Rent Term. TENANT shall dispose of any Landlord's Equipment removed from the Theatre, and any replacement equipment installed by TENANT shall become part of Tenant's Equipment (defined in Section TENANT shall have no obligation to compensate LANDLORD for any Landlord's Equipment removed from the Theatre and shall have no obligation to replace any such Landlord's Equipment. A preliminary layout plan of the Theatre, showing the anticipated configuration of the Theatre, is set forth on Exhibit C, which preliminary layout plan has been approved by LANDLORD and TENANT. The Premises shall not include the Former Theatre Space.
S:1WPFILES|2707D1443\Lease-6 (wms 11-16-11).doc 1.4
Section 1.04: EXHIBITS
The following items are attached hereto as exhibits and hereby incorporated into and made a part of this Lease:
Exhibit A - Legal Description of the Land [Section 1.03]; Exhibit B - Site Plan of the Center [Section 1.03];
Exhibit C- Layout Plan of the Theatre (Section 1.03);
Exhibit D- Landlord's Work and Tenant's Work [Section 3.0L]; Exhibit E - Completion Certificate (Section 1.05);
Exhibit F - Non-Disturbance Agreement [Section 18.01];
Exhibit G - Landlord Estoppel Certificate (Section 19.01); Exhibit H - Memorandum of Lease (Section 23.11];
Exhibit I - Common Areas Work Schedule [Section 3.01];
Exhibit I- Former Theatre Space Work Schedule (Section 3.01]; and Exhibit K - DCIP Equipment [Section 21.01].
Section 1.05: GLA OF THE PREMISES
The actual GLA of the Premises shall be as shown on the final Approved Plans (defined in Section 3.01) consistent Section 1.03(g), as verified and approved by both LANDLORD and TENANT. The actual GLA of the Premises, as so determined shall be set forth in the completion certificate which shall be based on the form which is attached hereto as Exhibit E (the "Completion Certificate") and executed by LANDLORD and TENANT on or about the Rent Commencement Date.
Section 1.06: CHANGES TO CENTER
LANDLORD covenants that the Center shall be constructed in accordance with the Site Plan and, once constructed, no material changes shall be made to the Center or to the Parking Retention Areas or to the height, size and general configuration of the buildings of the Center, subject to the provision that changes may be made which do not: (a) materially adversely affect the visibility of the Premises from the roads, streets, highways, Center patron access ways and public transportation access points inside and outside of the Center; (b) materially adversely affect public access (vehicular and pedestrian) to the Premises; (c) materially adversely affect public access (vehicular and pedestrian) to the Parking Retention Areas; (d) add any new building floors open to the general public directly above the Theatre; (e) decrease the number of parking spaces of the Parking Retention Areas or result in any building or structure being constructed in the Parking Retention Areas; or (f) materially diminish any rights or privileges of TENANT under this Lease without TENANT's prior written consent, which may be withheld in TENANT's sole and absolute discretion. Any work performed by LANDLORD in making changes to the Center shall be performed so as to not materially adversely affect public access to the Premises and Parking Retention Areas during the performance of such work, and LANDLORD shall make all reasonable efforts to minimize any impact on TENANT's operations in the Theatre during the performance of such work, including working at night or in the morning, if appropriate.
Section 1.07: PARKING RETENTION AREAS
The "Parking Retention Areas" means the following automobile parking spaces of the Common Areas shown on the Site Plan, together with all driveways providing vehicular passageway to and from such parking spaces, all walkways providing pedestrian passageway between such parking spaces and the Theatre, and all related curbing, lighting, and landscaping:
(i) all parking spaces that are part of the Center; (i) all parking spaces located within the Central City Mall parking garage (the "Mall Garage"), as shown on the Site Plan; and (iii) all parking spaces within the CalTrans parking garage (the "CalTrans Garage"), as shown on the Site Plan.
Throughout the Rent Term, LANDLORD shall provide all of the Parking Retention Areas for the non-exclusive use by TENANT and TENANT's employees, customers, clients, guests, patrons and invitees (use thereof being shared by use by the employees, customers, clients, guests, patrons and invitees of the other premises of the Center, and in connection with the Mall Garage and CalTrans Garage, employees, customers, clients, guests, patrons and invitees of others), in a properly lighted, secured, maintained, unblocked and unimpeded environment, with appropriate security, safety, cleanliness, proper striping, traffic controls, and timely maintenance S:1WPFILES\2707D1443 Lease-6 (wms 11-16-11).doc 1.5
and repairs. TENANT and TENANT's employees, customers, clients, guests, patrons and invitees also shall have the right of use on a non-exclusive basis of all of the other Common Areas of the Center. LANDLORD has represented to TENANT that the CalTrans Garage is owned by persons or entities other than LANDLORD, but that LANDLORD has the right, throughout the Rent Term, to use (and permit TENANT and other Center occupants to use) such CalTrans Garage pursuant to easement or contractual arrangements. Further, LANDLORD has represented to TENANT that the Mall Garage is owned by LANDLORD, and covenants that any conveyance or other alienation of the Mall Garage by LANDLORD shall be subject to TENANT's rights pursuant to this Lease. In the event any Parking Retention Areas, as above- described, are no longer available for the use by TENANT and TENANT's employees, customers, clients, guests, patrons and invitees during the Rent Term, LANDLORD shall provide any replacement spaces necessary to ensure that at all times during the Rent Term no less than eight hundred (800) parking spaces are available within one thousand one hundred (1,100) feet from the front entrance of the Theatre for the use by TENANT and TENANT's employees, customers, clients, guests, patrons and invitees without interruption, and any such replacement spaces shall be deemed included in the Parking Retention Areas (with any spaces no longer available for the use by TENANT and TENANT's employees, customers, clients, guests, patrons and invitees being deemed omitted from the Parking Retention Areas.
Throughout the Rent Term, each of TENANT's employees, customers, clients, guests, patrons and invitees shall be permitted to use any of the automobile parking spaces of the Common Areas (including without limitation those within the Parking Retention Areas) without any charge or fee being imposed for such use. In the event that a charge or fee is imposed bi governmental authority or other person or entity for use of the automobile parking spaces of thi Common Areas, LANDLORD shall establish a validation or similar system whereby TENANT's employees, customers, clients, guests, patrons and invitees will be relieved of any obligation to pay such charge or fee.
LANDLORD shall not be prohibited from operating, or causing to be operated, a valet parking service whereby those who voluntarily use such service are charged a fee, provided that the parking spaces used for such valet parking service are located outside of the Parking Retention Areas. TENANT shall not be prohibited from operating, or causing to be operated, a valet parking service for the customers, clients, guests, patrons and invitees of the Theatre, provided that the parking spaces used for such valet parking service are located within the Section 1.08: WAGE REQUIREMENTS
(a) LANDLORD has informed TENANT that the Center is currently subject to a Housing and Urban Development 108 loan and related deed of trust ("HUD 108 Financing"), rhich would result in the federal Davis-Bacon Act prevailing wage requirements bein policable to the Theatre. Prior to the Delivery Date, LANDLORD shall remove the HUD 10 Financing from the Center, so that the federal Davis-Bacon Act prevailing wage requirements are not applicable to the Center.
(b) Pursuant to the Development Agreement, the City shall agree that neither it, nor the Mayor or Common Council of the City, shall enact a "living wage ordinance" (as defined in the Development Agreement) that would be applicable to the Theatre or TENANT's operations at the Theatre from the Effective Date until the end of the Rent Term (as provided in the Development Agreement, the "City Living Wage Covenant"). Any default of the City Living Wage Covenant by the City shall be deemed a breach by LANDLORD under this Lease, entitling TENANT to all rights and remedies for breach in addition to all other rights and remedies provided by this Lease (including without limitation the Wage Requirements Reimbursement provided in Section 1.08(c)).
Notwithstanding anything else provided in this Section 1.08 or the Development Agreement, in the event any ordinance similar to a "living wage ordinance" (as defined in the Development Agreement) is enacted on the basis that it is mandated pursuant to any State or Federal law, rule or regulations, and in the event such State or Federal wage mandate or the adoption of such ordinance is not uniformly applicable across the State of California (a "Non- Uniform Wage Requirement"), LANDLORD shall reimburse to TENANT on a monthly basis all additional costs incurred by TENANT due to such Non-Uniform Wage Requirements (the S:IWPFILES12707D\443\Lcasc-6 (wms 11-16-11),doc 1.6
"Wage Reimbursement"). TENANT shall have the right to recover the Wage Reimbursement by offset against Rent as Rent becomes due, which right to offset against rent shall not be subject to any limitation of the amount of Rent per month which may be subject to the offset.
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ARTICLE 2: PREMISES
Section 2.01: LEASE OF PREMISES
In consideration of the Rent to be paid and the covenants to be performed by TENANT, Rent Term, at the Rent, and upon the covenants, conditions and other terms herein set forth.
Section 2.02: TITLE AND SUITABILITY
LANDLORD covenants, represents and warrants to TENANT that:
(a) as of the Effective Date, LANDLORD is the sole owner of fee simple absolute title to the Land;
interfere with the remodeling of the Premises in the manner provided for in this Lease TENANT's possession and use of the Premises for the Permitted Use (defined in Section 8.01) or any other rights or privileges of TENANT under this Lease; as of the Effective Date, LANDLORD has the right to use (and the right to permit ENANT and other Center occupants, and their respective employees, customers, client uests, patrons and invitees) to use, all Parking Retention Areas, including without limitation ar portions of the Parking Retention Areas not located on the Land; employees, customers, clients, guests, patrons and invitees; from the Effective Date until the Expiration Date, the Premises shall be subject t 10 leasehold or possession interest, other than the leasehold interest hereby created in TENANT provided that LANDLORD shall have the right to enter into a ground lease on the Land provided that such ground lease shall not affect, limit or restrict any rights or privileges of TENANT under this Lease;
LANDLORD has all necessary right and authority to lease the Premises to TENANT and to grant to TENANT the rights to use of all of the Common Areas pursuant to this Lease and in accordance with the terms of this Lease; the soil conditions of the location for the Premises are suitable for the Premises or, without any cost or expense to TENANT, shall be made suitable for the Premises; anc there are no existing, valid, un-terminated or outstanding leases, grants of use rights, grants of possession rights, or grants of property rights to any other person or party applicable to the site for the Premises, which will not be permanently removed and extinguished of record by LANDLORD at the sole cost and expense of LANDLORD before the Delivery Date.
Section 2.03: SECURITY DEPOSIT
No security deposit shall be required.
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Section 2.04: TITLE CONTINGENCY
(a) With LANDLORD being the owner of fee simple title to all of the Land, the Effective Date shall be deemed to be the "Title Date" as used herein. (b) TENANT shall have no obligation to perform Tenant's Work (defined in Section
3.01, to pay any portion of Tenant's Share (defined in Section 3.01), to accept physical insecure of or at of the open for eins re therely or to pay any the le 'ontingency"
LANDLORD's delivery to TENANT's attorney (identified on Page 1.1 He simple abolite iotary i and as of til freiy batiging LANDLORD as the ownet of satisfactory documentation);
(3) LANDLORD's delivery to TENANT's attorney (identified on Page 1.1 hereof) of the Memorandum of Lease (no less than two counterparts) required by Section 23.1l hereof in the form of Exhibit H fully executed by LANDLORD; (4) LANDLORD's delivery to TENANT's attorney of any Non-Disturbance Agreement (defined in Section 18.01) (no less than two counterparts) which is required by Section 18.03 hereof, with respect to any Loan Encumbrance (defined in Section 18.01) existing prior to the recording of the Memorandum of Lease, fully executed by LANDLORD and fully executed by the Loan Encumbrance Holder (defined in Section 18.01); and (c) The first day on which the Title Contingency has been fully satisfied is referred to herein as the "Title Contingency Date."
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ARTICLE 3: CONSTRUCTION
Section 3.01: DEFINITIONS AND OVERVIEW
(a) As used in this Lease, the following definitions are applicable:
"Approved Plans" means the Plans (defined below) which are approved by both LANDLORD and TONANT pursuant to the provisions of this Lease, together with any changes to such plans which are approved by both LANDLORD and TENANT pursuant to the provisions of this Lease.
have been sued and bared y te api ate men be dant to which ll Building Permis (4) "Common Areas Work" means performance, in a good and workmanlike manner, in compliance with all applicable governmental requirements, and in conformity with this Lease, of the construction of all improvements of the Center constituting the Common Areas, substantially consistent with the Site Plan, to the extent that such improvements do not exist in a first-class condition, so that the Common Areas will be properly designed, engineered, sound and of first quality. Common Areas Work shall include without limitation all items described on the Common Areas Work Schedule attached as Exhibit I, and also the construction of all of the vehicular passage ways from the streets surrounding the Center to the parking areas of the Center and the Parking Retention Areas, and all pedestrian passage ways between the parking areas, including without limitation the Parking Retention Areas, and the buildings of the Center; and such Common Areas Work shall include without limitation construction of hard surface walkways, hard surface automobile parking areas (including the Parking Retention Areas), access driveways, private streets, ramps, handicap accessible ramps, vertical transportation, parking lot lighting, planters, landscaping, storm water drainage, and utilities. The Common Areas Work shall be part of Landlord's Work (defined below). "Delivery Date" means the day that all of the following has occurred: (a) Substantial Completion of all Theatre Site Work in compliance with this Lease, including without limitation in compliance with Exhibit D and the Approved Plans, and in compliance with all applicable govemmental requirements, (b) LANDLORD has delivered to TENANT an accurate written notice of Substantial Completion of all of the Theatre Site Work, (c) LANDLORD has delivered to TENANT unconditional physical possession of the Premises, in order that TENANT may complete Tenant's Work, (d) the occurrence of the Title Contingency Date and the Development Approvals Date, and (g) LANDLORD has deposited Landlord's Share into the Escrow pursuant to the Fund Control Agreement. "Development Approvals" means all applicable zoning, zoning variance, approvals, consents, permits and authorizations that are necessary for the presence of the Theatre at the Center, implementation and engagement in the Permitted Use at the Theatre, the presence of the Common Areas as configured and shown on the Site Plan, and the performance of all of Landlord's Work (but not including the Building Permits, any certificate of occupancy for the Theatre, or any permits or licenses required for the operation of TENANT's business at the Theatre, such as a business license), whether or not obtainable from governmental authority or :
arrangement).
"Development Approvals Date" means the day on which the Development Approvals have been issued, and if all of the Development Approvals have been issued prior to the Effective Date, then the Effective Date shall be deemed to be the Development Approvals Date.
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"Escrow" shall mean the escrow established by the Fund Control Agreement, in which Landlord's Share shall be deposited for use by TENANT in TENANT's Approvals Date, the Plans Approva Date, the Besting PermiDate the Tif Co Deny Danc means occurrence of the Development and the Delivery Date.
(10) "Essential Contingencies Date" means the first day on which all of the Essential Contingencies have occurred.
the separated Former Theatre Space to me Ske it sabr or masall inork ing ail vor a describid on the Former Theatre Space Work Schedule attached as Exhibit J. "Fund Control Agreement" shall mean that certain Fund Control greement dated on or about the Effective Date, entered into by and among LANDLORD TENANT, California Fund Control, Inc., and the general contractor selected by TENANT fo Tenant's Work.
(13) "Landlord's Share" shall mean Four Million Seven Hundred Thousand Dollars ($4,700,000.00).
14) "Landlord's Work" means all of the Common Areas Work, all of th ormer Theatre Space Work and all of the Theatre Site Work, including, without limitation, tl 222222
(16) "Plans Delivery Date" means the first day on which all of the Plans have been delivered to LANDLORD.
(17) "Plans Approval Date" means the day on which LANDLORD and 'ENANT first reach agreement on approval of the Plans as provided in this Lease, resulting i uch Plans being deemed to be the Approved Plans
(18) Each of "Substantially Complete" or "Substantially Completed" o 'Substantial Completion" means the completion of the construction work in question i center, with use of new materials, and with all debris, construction materials and construction equipment removed.
TENANT in TENANT sole disrecion treas the arais and engineer talks ad by discretion of TENANT.
*" means theatre seats: screens and relate
quipment; drapes (but not the insulation behind the drapes and not the trim board); acoustic wall panels; slide and film projection and presentation equipment; audio equipment; ticket system; ticket ATM/kiosks, concessions equipment (including without limitation drink dispensing equipment, bulk CO2 system and popcorn poppers); point-of-sale devices; telecommunications equipment; change machines; automated ticket or cash dispensing machines, S: IWPFILES12707D14431Leasc-6(wms 11-16-11).doc 3.2
poster cases; burglar systems; ropes and poles; ash urns; burglar alarm systems; interior security cameras; background music system; computer systems; lobby art; and the trash compactor.
Million Dollars ($3,000,000.00).
"Tenant's Work" means the Theatre Building Work and the Theatre Equipment Work, and the items constituting Tenant's Work are identified on Exhibit D replacement for such Former Theatre Space restrooms (provided that the Theatre Building Work included in the Former Theatre Space Work).
(24) "Theatre Building Work Budget" means the detailed budget of the expected hard construction cost for the Theatre Building Work based on this Lease and the Approved Plans (not including any costs in connection with any of the following: work performed prior to the Plans Approval Date; preparation and review of the Plans; performance and completion of the Theatre Site Work; performance and completion of the Common Areas Work; performance and completion of the Theatre Equipment Work; obtaining and maintaining the Development Approvals; construction, installation and obtaining approvals for any signage; impact, development and other governmental fees, special assessments and charges for the development and any other governmental assessment or fee; and any soft costs, including without limitation any architectural, surveying, environmental, accounting, legal, consultant, land acquisition and financing costs).
Work, Theatre Site Work, The e riptient or and moms, except for ace Cort, and areas o the extent Tenant's Equipment exists within the Premises on the Effective Date, all work appropriate for installation within or about the Theatre of Tenant's Equipment. (26) "Theatre Site Work" means performance and completion of the remediation systems;
enclosure or structure.
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Section 3.02: DEVELOPMENT APPROVALS
To the extent that all of the Development Approvals have not been obtained before the raffic impact fees, excise taxes, development taxes and special assessments. Further, an vithout limiting the forgoing, LANDLORD shall pay all amounts that may be required due to including without limitation any (a) changes in the City of San Bernardino's building, plumbing, electrical, fire and grading codes and ordinances, (b) increases in development fees, (c) imposition of new fees, (d) changes in State or Federal law, and (e) imposition of mitigation measures (such as requirements to improve public improvements and facilities like public streets, roadways, landscaping, utilities, drainage, flood control improvements, water and sewer facilities, street lighting and street light, or monetary payments in lieu thereof). TENANT shall assist and cooperate with LANDLORD in obtaining the Development Approvals without out-of- pocket cost to TENANT. TENANT's cooperation with LANDLORD to obtain the Development Approvals shall include, without limitation, approval of modification of the Plans as necessary to meet applicable governmental requirements, subject to the provision that if TENANT is not reasonably satisfied with any such necessary modifications to the Plans, TENANT shall have the right to terminate this Lease by providing written notice to LANDLORD. This written notice shall not be subject to Section 17.01(b). In the event LANDLORD is unable to obtain Development Approvals and this Lease is terminated, LANDLORD shall pay to TENANT an amount equivalent to the costs incurred by TENANT for architectural and engineering services on the Plans, subject to the provision that such reimbursement. shall not exceed Three Hundred Thousand Dollars ($300,000.00). The provisions of this Section 3.02 shall survive any termination or cancellation of this Lease.
Section 3.03: PLANS
To the extent any such items have not been provided by LANDLORD to TENANT before the date of this Lease, within fourteen (14) days after the date of this Lease, at LANDLORD's sole cost and expense, LANDLORD shall provide TENANT the following items (the "Background Items"): (1) all applicable design criteria for the Center imposed by governmental authorities or existing as of the date of this Lease; (2) a CAD version of the site plan for the Center, if available (including a scale and a north arrow); (3) a civil engineering report specific to the Theatre building, if available, from the date of the original construction of the Theatre; (4) an environmental report specific to the Theatre or specific to the Center, if available, from the date of the original construction of the Theatre; and (5) the Americans with Disabilities Act survey conducted by Charles Bell Associates in 2010.
TENANT shall have the Plans prepared by Tenant's Architect and use diligent efforts to deliver the Plans to LANDLORD within one hundred twenty (120) days after the later of the date of this Lease or LANDLORD's delivery to TENANT of the Background Items. The Plans shall: (1) be in conformity with all applicable building codes and other governmental requirements (including without limitation requirements of the Americans with Disabilities Act), (2) be based on the configuration for the Theatre set forth on the layout plan attached hereto as Exhibit C, and (3) contain (without limitation) specifications necessary to provide that the background noise from all sources outside of the Theatre will be reduced within the Theatre to a S:1WPFILES12707D/443\Lease-6 (wms 11-16-11) doc
(120) period above provided.
The Plans shall be subject to LANDLORD's prior approval, which approval shall faith effort without delay to resolve all disapproved aspects of the Plans.
The costs for any change order related to Landlord's Work shall be the responsibility of LANDLORD.
TENANT shall be responsible for all change orders approved by TENANT that relate to Tenant's Work (subject to payment of Landlord's Share), unless LANDLORD agrees to pay such costs as part of the change order.
If any construction work is performed although its performance is not and TE ANi, ther al roste or anc o ist etio orange onde paige cd be part woo rede or authorized performance of such construction work.
(d)
eliver to LANDLORD the Theatre Building Work Budget. In the event the Theatre Building Vork Budget exceeds Four Million Dollars ($4,000,000.00), either LANDLORD or TENAN' equivalen eot ho tose prored thate such r for artie saha nor iseo ere Flon ed Thousand Dollars ($300,000.00). The provisions of this Section 3.03(d) shall survive any Section 3.04: BUILDING PERMITS
From and after the Plans Approval Date, TENANT shall apply for and use diligent effort to obtain the Building Permits, including without limitation and permits and approvals for TENANT's Building Signs (defined in Section 14.02). LANDLORD shall assist and cooperate vith TENANT in obtaining the Building Permits, with LANDLORD's cooperation with TENANT including, without limitation, approval of modification of the Plans as necessary to Section 3.05: CONTINGENCIES
In the event that the Essential Contingencies Date has not occurred within three hundred sixty (360) days from and after the date of this Lease, regardless of any delay caused by any Force Majeure Event (defined in Section 1.03(d)), at any time thereafter until the Essential S:IWPFILES12707D1443 Lease-6 (wms 11-16-11).doc 3.5
Contingencies Date occurs, TENANT may terminate this Lease by providing LANDLORD ritten notice of such termination. This written notice shall not be subject to Section 17.01(b) ‹ is Lease. In the event of such termination, LANDLORD shall pay to TENANT an amou quivalent to the costs incurred by TENANT for architectural and engineering services on th lans, subject to the provision that such reimbursement shall not exceed Three Hundre Thousand Dollars ($300,000.00). The provisions of this Section 3.05 shall survive any termination or cancellation of this Lease.
Section 3.06: LANDLORD'S WORK
(a) As soon as reasonably practicable after the Plans Approval Date, LANDLORD shall commence and thereafter diligently perform the Theatre Site Work at LANDLORD's sole cost and expense, and cause the Delivery Date to occur. The Theatre Site Work shall be performed in accordance with this Lease and the Approved Plans. (b) LANDLORD shall use diligent efforts to cause Substantial Completion of the Common Areas Work prior to the anticipated Rent Commencement Date. commencement.
(d) LANDLORD shall cause all of Landlord's Work to be performed in compliance with applicable building codes and other governmental requirements, in a good and workmanlike manner, and with use of new and sound quality materials.
Section 3.07: STAGING AREA
Commencing on the Delivery Date and continuing thereafter until completion of all of Tenant's Work, LANDLORD shall provide TENANT an area, fenced, protected from weather convenient to and with access to the site of the Premises, to be used for storage of supplies. railer trucks, and an area for trash and construction debris dumpsters. Any appropriate o necessary mechanized means of vertical transportation between the Staging Area and the site o the Premises also shall be provided by LANDLORD. Security to protect all of the items stored at the Staging Area shall be provided by LANDLORD. LANDLORD shall pay all costs for providing the Staging Area, the security for the Staging Areas, the access road (or roads) and the mechanized means of vertical transportation. TENANT shall be provided unimpeded access to all sides of the site for the Premises during performance of Tenant's Work Section 3.08: TENANT'S WORK AND PAYMENT OF COSTS
From and after the Delivery Date, TENANT shall cause the performance of all of requirements. TENANT shall be permitted to dispose of any item of furniture, fixtures o equipment within the Theatre on the Delivery Date, with the understanding that TENANT sha (b) LANDLORD shall deposit Landlord's Share into the Escrow as provided by the Fund Control Agreement. As Tenant's Work progresses, TENANT shall request and receive isbursements from the Escrow as provided by the Fund Control Agreement, for use in paying he costs and expenses incurred by TENANT for Tenant's Work S:IPFILES|2707D14431L case-6 (wms 11-16-11).doc 3.6
Once the full amount of Landlord's Share has been paid, TENANT shal thereafter be solely responsible for paying Tenant's Share. In no event shall Tenant's Share be less than One Million Two Hundred Forty Thousand Dollars ($1,240,000.00), provided that TENANT shall be permitted to allocate up to Four Hundred Thousand Dollars ($400,000.00) of TENANT's investment in digital projection, sound equipment and other equipment and services provided by TENANT at the Theatre (but not personnel or staffing expenses) as an in-kind investment in Tenant's Share. It is the intention of LANDLORD and TENANT that all of Tenant's Share shall used for the purchase and installation of Tenant's Equipment, and not for the Theatre Building Work.
In the event the costs and expenses of Tenant's Work are such that Tenant's exceed Three Million Dollars ($3,000,000.00), LANDLORD and paid by TENANT reimbursed by LANDLORD.
Notwithstanding anything provided by this Section 3.08, TENANT shall perform TENANT the costs and expenses incurred on the Demising Work, using LANDLORD's own unds from outside the Escrow (the "Demising Work Reimbursement"). TENANT shall har he right to recover the Demising Work Reimbursement by offset against Rent as Rent becom due, which right to offset against rent shall not be subject to any limitation of the amount of Rent per month which may be subject to the offset.
Section 3.09: MECHANIC'S LIENS
Neither LANDLORD nor TENANT shall allow to remain un-discharged any lien, encumbrance or other charge arising out of any work done or materials or supplies furnished by any contractor, subcontractor, mechanic, laborer or materialman which might be or become a lien or encumbrance or other charge against or upon the Premises or the Land (collectively, a "Mechanic's Lien"). If any Mechanic's Lien or notice of a Mechanic's Lien on account of an alleged debt of TENANT or LANDLORD, or any person engaged by TENANT, LANDLORD or either parties' contractor to work on the Premises or the Center shall be filed against or upon from and after such party's receipt of notice from the other party about the presence of the lien.
Section 3.10: INSURANCE
Landlord's Work, and TENANT with respect to Tenant's Work, shall maintain or require their contractors to maintain: (a) public liability insurance coverage of no less than Two Million ollars ($2,000,000.00) per occurrence and in the aggregate for personal injury, bodily injur ath or property damage; (b) builder's risk insurance for full replacement; and (c) worker ompensation insurance as required by applicable law. Each of LANDLORD and TENAN pon written request shall provide to the other evidence (certificates of insurance or copies o Section 3.11: ACCESS
At all times during performance of Landlord's Work and during performance of Tenant's Work, both LANDLORD and TENANT and their employees, contractors, agents and invitees all have access to the Premises for purpose of observing the work in progress, subject to tr ondition that performance of the construction work shall not be interfered with by such acce S:IPFILES12707D1443/Leasc-6 (wms 11-16-11).doc 3.7
and observation. Neither LANDLORD nor TENANT shall be obligated to observe or inspect the construction work of the other, and if either does observe the work of the other, such observation or inspection, or both, shall not place upon such party any obligation or relieve the party responsible for such work of the obligations and requirement of this Lease.
Section 3.12: FORCE MAJEURE
Except as expressed to the contrary, the time periods set forth in this Article 3 shall be extended for periods of time equal to periods of delay caused by any Force Majeure Event (defined in Section 1.03(d)).
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ARTICLE 4: TERM
Section 4.01: TERM OF THIS LEASE
The "Rent Term" means the period commencing on the Rent Commencement Date terminated or extended pursuant to the extension options provided herein. The "Expiration Date" means the last day of the Tenth (10th) Rent Year (defined in Section 4.02) following the Section 4.02: RENT YEAR
The term "Rent Year" means each successive twelve (12) month period occurring during the Rent Term, and "Rent Years" means more than one Rent Year. The first Rent Year shall begin on the Rent Commencement Date (defined in Section 5.02) and extend through the next twelve (12) full calendar months. If the Rent Commencement Date occurs on a day other than the first day of a calendar month, then the first Rent Year extends from the Rent Commencement Date until the first day of the first full calendar month occurring after the Rent Commencement Date and then for the next twelve (12) full calendar months. For example, if the Rent Commencement Date is April 18, 2012 the first Rent Year will extend from April 18, 2012, to and including April 30, 2012.
Section 4.03: OPTIONS TO EXTEND
Provided that no Event of Default (defined in Section 16.01) exists at the time written notice thereof is given under the next sentence of this Section 4.03, TENANT shall have four (4) options to extend the Rent Term for successive and consecutive periods of five (5) Rent Years each, followed by one (1) option to extend the Rent Term for a period of four (4) Rent Years (each such five-year period and four-year period being herein referred to herein as an including the amounts of Base Rent as specified for such period in Section 5.03. To exercise an option for an Extension Period, TENANT must give LANDLORD written notice of its election to exercise the option at least two hundred seventy (270) days prior to the expiration of: (a) the initial 10-year Rent Term for the first Extension Period or (b) the immediately preceding Extension Period for the second and subsequent Extension Periods. (b) LANDLORD and TENANT acknowledge that the number and length of the Extension Periods provided in Section 4.03 were structured to ensure certain tax and accounting benefits, including without limitation to ensure that this Lease is not classified as a capitalized lease pursuant to the Financial Accounting Standards Board or other govermental or regulatory entity. LANDLORD and TENANT agree to cooperate with each other in good faith, to the extent reasonable, to ensure that this Lease is not classified as a capitalized lease, provided that the foregoing shall not be construed to require LANDLORD to take any action which would increase LANDLORD's obligations or reduce LANDLORD's rights under the Lease.
Section 4.04: TERMINATION RIGHTS
Commencing with the completed fifth (5th) Rent Year, within sixty (60) days of each Rent Year, TENANT shall prepare and deliver to LANDLORD a written statement (the "Box Office Statement") of the Box Office Receipts (defined in Section 5.04(b)(1)(A)) for the most recently completed Rent Year. For each Rent Year commencing with and following the completed fifth (5th) Rent Year, in the event Box Office Receipts for the Rent Year in question, as shown on the Box Office Statement, are less than Two Million Five Hundred Thousand Dollars ($2,500,000.00) (the "Termination Box Office Threshold"), TENANT shall have the right to terminate this Lease by delivery of written notice to LANDLORD (the "Tenant Termination Notice") within sixty (60) days after LANDLORD's receipt of the Box Office Statement, which Tenant Termination Notice shall not be subject to Section 17.01(b). In the event TENANT delivers a Tenant Termination Notice, LANDLORD shall have the right, S:1WPFILES12707D/443\Lcasc-6 (wms 11-16-11).doc 4.1
during the sixty (60) day period immediately following LANDLORD's receipt of the Tenant Termination Notice (such sixty day period referred to as the "Landlord Termination Response Period"), to negate TENANT's termination of the Lease by delivering to TENANT the ditterence between the Termination Box Office Threshold and the Box Office Receipts for the Rent Year in question, in which event the Lease and Rent Term shall continue; provided, however, that should Box Office Receipts in any subsequent Rent Year be less than the Termination Box Office Threshold, TENANT shall again have the right to terminate this Lease (and LANDLORD shall have the right to negate such termination) as provided by this Section Any termination of the Lease and Rent Term pursuant to this Section 4.04 shall be effective as of the day immediately following the last day of the Landlord Termination Response Period. The provisions of this Section 4.04 shall not be affected by TENANT's exercise of any option for an Extension Period pursuant to Section 4.03, meaning that (without limitation) (a) this Section 4.04 shall remain effective during the Extension Periods, (b) in the event TENANT has exercised an option for an Extension Period but subsequently delivered a Tenant Termination Notice, the Lease shall terminate on the date immediately following the Landlord Termination Response Period unless LANDLORD has elected to negate such termination as provided in this Section 4.04, and (c) in the event LANDLORD has elected to negate any termination as provided in this Section 4.04, TENANT shall have the right to exercise or not exercise any option for an Extension Period, in TENANT's sole discretion.
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ARTICLE 5: RENT
Section 5.01: RENT
remises and the rights and privileges provided by this Lease, including without limitation th ights and privileges to the use of the Common Areas, during the Rent Term, at the times and i damages payable due to an Event of Default and interest as expressly provided by this Lease), i being acknowledged by LANDLORD and TENANT that Rent is intended to be an all-in, gross rental amount.
Section 5.02: RENT COMMENCEMENT DATE
Ongoing Development Requirements and the Title Contingency, the day that is two hundred seventy (270) days after the Delivery Date, provided that such period of two hundred seventy (270) days shall be extended upon the occurrence of any Force Majeure Event. In the event TENANT occupies and uses the Premises pursuant to temporary use and occupancy permits, and TENANT's right of use and occupancy of the Premises subsequently is revoked, not due to the fault of TENANT, because the temporary use and occupancy are not continued or are not made final, then, for the period during which TENANT does not have a right to use and occupy the Premises, TENANT's obligation to pay Rent shall abate. TENANT shall have no obligation to open for business in the Premises until all Initial Development Requirements (defined in Section
1.03(h)) and Ongoing Development Requirements (defined in Section 1.03(0)) have been satisfied, and the Title Contingency Date (defined in Section 2.04) has occurred Section 5.03: BASE RENT OR SPECIAL RENT
Base Rent. Throughout the Rent Term, except for any period during which Special Rent (defined in Section 5.03(c)) is applicable, TENANT shall pay to LANDLORD base rent ("Base Rent") in the following amounts:
If the Rent Commencement Date does not occur on the first day of a calendar month, then for the period from the Rent Commencement Date to and including the last lay of the month during which the Rent Commencement Date occurs, the Base Rent shall b Seventy Thousand Eight Hundred Thirty-Three Dollars and Thirty-Three Cents ($70,833.33 Commencement Date;
If TENANT exercises its option for the first Extension Period, for t eventh (11th) through fifteenth (15th) Rent Years, Base Rent for each such Rent Year shall S: WPFILES:2707D14431Lease-6 (wms 11-16-11).doc 5.1
Vine Hundred Twenty Thousand Two Hundred Fifty Dollars ($920,250.00), payable in equa nonthly installments of Seventy-Six Thousand Six Hundred Eighty-Seven Dollars and Fift Cents ($76,687.50).
If TENANT exercises its option for the second Extension Period, for the If TENANT exercises its option for the third Extension Period, for the qual Tore Cente 5 5 5 Eightry Eight Thousand Three Hundred Ninery-Five Dollars and (7) If TENANT exercises its option for the fourth Extension Period, for the twenty-sixth (26th) through thirtieth (30th) Rent Years, Base Rent for each such Rent Year shall be One Million One Hundred Thirty-One Thousand Dollars ($1,131,000.00), payable in equal monthly installments of Ninety-Four Thousand Two Hundred Fifty Dollars ($94,250.00).
If TENANT exercises its option for the fifth Extension Period, for the hirty-first (31st) through thirty-fourth (34th) Rent Years, Base Rent for each such Rent Yea aya be inequai monthly italimed or The Hundred o housand one Hundred Four Dolars an Seventeen Cents ($100,104.17).
Completion Certificate.
installments thereof which shall be paid by TENANT to LANDLORD shall be set forth in the Completion Certificate (defined in Section 1.05), which shall be executed by LANDLORD and ENANT on or about the Rent Commencement Date. The Completion Certificate shall set fo calendar dates of the Rent Commencement Date and the Expiration Date of the initial 1 (10) Rent Year Rent Term of this Lease.
each month as reasonably practicable.
When Special Rent Payable. Notwithstanding the other provisions of this Lease, Special Rent shall be payable in lieu of Base Rent and Percentage Rent in the following instances:
In the event the Rent Commencement Date occurs between January I and In the event all Initial Development Requirements (defined in Section In the event at any point during the Rent Term the Ongoing Development Requirements (defined in Section 1.03(i)) are not satisfied, Special Rent shall be payable in lieu of Base Rent and Percentage Rent for each such period from the first day of the calendar month S:\PFILES12707D1443Lease-6 (wms 11-16-11).doc 5.2
after such Ongoing Development Requirements are not satisfied through the last day of the calendar month in which all Ongoing Development Requirements are satisfied.
In the event of an Exclusive Right Inconsistency, Special Rent shall be payable as provided in Section 23.14(c).
Section 5.04: PERCENTAGE RENT
(a) Percentage Amount and Percentage Rent. As used in this Lease, the term "Percentage Amount" shall be the amount determined by multiplying the Gross Sales during a Rent Year by Fifteen Percent (15%). For each Rent Year during the Rent Term, TENANT shall pay as "Percentage Rent" the amount by which the Percentage Amount exceeds the Base Ren payable for such Rent Year; provided that if the Percentage Amount is equal to or less than Bass Rent in any Rent Year, no Percentage Rent shall be payable for such Rent Year. (b) Gross Sales.
Definitions. The phrase "Gross Sales" wherever used herein is defined to mean the aggregate, less Applicable Exclusions and Deductions (defined below), of Box Office Receipts, Concessions Receipts, and Game Machine Receipts of the Theatre, which are defined "Box Office Receipts," is defined to mean the aggregate amount of the actual sale price of all tickets and other admissions to the Theatre after excluding therefrom all federal, state and local admission, sales, value-added, excise, luxury and gross receipts taxes, and taxes of the same or similar nature, and any rebates to charitable organizations in connection with benefits sponsored by them (as adjusted in the manner provided in Section "Concession Receipts" means the following which are obtained from business done in, at or from the Theatre: (i) all proceeds received from the sale of all food and drink sold from or on the Premises and of refreshments, unless sold from vending machines; (ii) all proceeds received from the sale of records, books, magazines, toys or novelties sold in connection with a particular presentation (except that if TENANT receives only a commission on such sales, only the commission shall be included); (iii) all proceeds received from the sale of video cassettes and video discs; (iv) all proceeds received from any vending machines (including without limitation those from which refreshments are sold), pay telephones, change machines and automated teller machines owned by TENANT or by any entity which is a subsidiary, affiliate or parent of TENANT, after excluding all royalty fees, if applicable; (v) all proceeds (whether designated as commissions or otherwise designated) received by TENANT from vending machines, pay telephones, change machines and automated teller machines, which are not owned by TENANT or any entity which is a subsidiary, affiliate or parent of TENANT, after deducting from the gross receipts therefrom all amounts provided by TENANT to the owners of such vending machines, pay telephones, change machines and automated teller machines as royalties or otherwise; and (vi) all proceeds received by TENANT from all other business done in, at or from the Theatre except the business covered by subsections (A) and (C) "Game Machine Receipts," means the following which are
obtained from business done in, at or from the Theatre: (i) all proceeds from any mechanical, electronic, video or token operated amusement, entertainment or game machine or device owned token operated amusement, entertainment or game machine or device which is not owned by TENANT or by a subsidiary, affiliate or parent of TENANT.
Applicable Exclusions or Deductions. The following "Applicable Exclusions and Deductions" shall be omitted, deducted or excluded from Box Office Receipts, Concession Receiots. Game Machine Receipts and Gross Sales:
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(B) rebates to charitable organizations in connection with benefits sponsored for them;
icense, concession, agency and royalty fees, which are paid t hird persons, who are not an entity which is a subsidiary, affiliate or parent of TENANT (D) discounts, allowances or cash or credit refunds made to customers in the ordinary course of business;
goods returned to sources or transferred to another store or warehouse owned or leased by or affiliated with TENANT when such return or transfer is not related to a sale of merchandise in the Theatre or is made solely for the convenient operation of TENANT's business;
sums and credits received in the settlement of claims for loss of or damage to food or merchandise;
however denominated, paid by ces, marion at service ari has are those hages are not included in the ticket or merchandise sales price (H) proceeds from sales of fixtures, equipment or property not in the (1) proceeds from sales to employees, to the extent the total amoun does not exceed two percent (2%) of all other Gross Sales for the applicable period Payment. TENANT shall pay all applicable Percentage Rent t LANDLORD for each and every Rent Year on or before the ninetieth (90th) day from and afte the last day of such Rent Year.
(e) Records and Review.
LANDLORD may at any reasonable time, upon no less than fourteen (14) days' prior written notice to TENANT, cause a complete review to be made of TENANT's books and records of Gross Sales which TENANT is required to maintain pursuant to subsection (1) above. Such review may be performed only by LANDLORD's employees and personnel or by a qualified third party who is not paid a percentage of any recovery and whose compensation is not contingent on a finding that a recovery is due LANDLORD. All information obtained from such review shall remain strictly confidential and shall not be disclosed to any third party, without the prior written consent of TENANT in each instance, unless such disclosure is required by applicable law, or unless a dispute results in a lawsuit and disclosure is required as part of such lawsuit.
If a review pursuant to subsection (2) above reveals a deficiency in payment of Percentage Rent by TENANT, LANDLORD shall have the right to bill TENANT the amount of such deficiency in Percentage Rent, and, within thirty (30) consecutive days following receipt of such bill together with a copy of the review report, TENANT shall pay to LANDLORD the amount of the deficiency and Late Payment Interest (defined in Section 5.06).
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If such review shall disclose that: (A) any Annual Report understates the total amount of Gross Sales during the reporting period of the Annual Report to the extent of three percent (3%) or more; or (B) TENANT has not kept complete books and records of Gross Sales, as required by subsection (1) above; then, in addition to billing TENANT the amount of such deficiency, LANDLORD shall have the right to bill TENANT the reasonable cost of said review, and within thirty (30) consecutive days following receipt of such bill together with a copy of the review report, TENANT shall pay to LANDLORD the reasonable cost of such review.
If a review pursuant to subsection (2) above reveals that TENANT has paid more Percentage Rent than TENANT was obligated to pay pursuant to this Lease, upon LANDLORD's receipt of notice thereof from the reviewing party, the amount of such overpayment by TENANT shall be applied to the next payment of Base Rent, together with Late Payment Interest for the period from the date such amount was paid to LANDLORD until the date such amount is deducted from Base Rent.
In addition to the books and records of Gross Sales provided in this Section 5.04, TENANT shall also, upon reasonable request of LANDLORD (but no more often than annually), provide to LANDLORD a copy of TENANT's corporate annual report, to be maintained in accordance with Generally Accepted Accounting Principles (GAAP) Section 5.05: RENT PAYABLE TO AND WHERE
All installments of Rent payable by TENANT under this Lease shall be paid when due without prior demand therefor (unless such prior demand is expressly provided for in this Lease), and shall be paid by TENANT to LANDLORD at the address of LANDLORD set forth as its rent payment address on Page 1.1 of this Lease, or to such other payee at such other address as may be designated from time to time by written notice from LANDLORD to TENANT.
Section 5.06: LATE PAYMENT INTEREST
Any Rent amount, which is not paid by TENANT to LANDLORD within ten (10) calendar days after it is due, thereafter shall bear interest at the Prime Rate per annum as published in the Wall Street Journal under the heading of "Money Rates" plus two percent (2%) per annum or if such interest rate is deemed unlawful because it exceeds the highest rate ermitted under the laws of the state the Premises is located in, then the highest rate permittec under the laws of the state the Premises is located in. for the period from such tenth (10th) das until such amount is paid (the "Late Payment Interest"). Late Payment Interest shall not be applicable to any period to which interest at the Default Rate (defined in Section 16.04) is applicable.
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ARTICLE 6: TAXES AND ASSESSMENTS
Section 6.01: LANDLORD'S TAXES
LANDLORD shall be solely responsible for payment before delinquency of all ad ilities provided for the Theatre, such as any utility line costs, transformer costs and tap pacity fees with respect to the utilities for the Theatr Section 6.02: TENANT'S TAXES
TENANT shall pay before delinquency to the taxing authority any and all taxes, assessments, impositions, excises, fees and other charges levied, assessed or imposed upon TENANT by a governmental authority having the jurisdiction to do so on TENANT's business operation or on TENANT's Property.
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ARTICLE 7: UTILITIES AND SERVICES
Section 7.01: UTILITIES
The Theatre shall be separately metered to enable TENANT to be billed directly by each tility systems, including, without limitation, any tap fees and any taxes, charges and fees base on the impact of the development of the Theatre or the Center on utility services. LANDLORI all ensure that throughout the Rent Term, such utilities shall deliver, at a minimum, th trength, capacity, volume, pressure, voltage and size required to service the Theatre at fu Section 7.02: CHARGES FOR UTILITY SERVICES
Section 7.03: TRASH AND GARBAGE REMOVAL
As part of the Theatre Site Work, an exclusive pad or structure for the housing of TENANT's trash compactor, with sufficient overhead room to enable easy access for removal of trash, and with electric, water and sewer utility services extended and connected thereto, shall be general public, until removed and deposited in the trash depositor compactor.
Section 7.04: PARKING AREA LIGHTING
Throughout the Rent Term, LANDLORD shall provide (or ensure that such is provided) of the automobile parking areas of the Parking Retention Areas (defined in Section 1.07(a)) and of all other Common Areas. Lighting in the Parking Retention Areas and the walkways anc require that such lighting be ended before 2 A.M. each night. LANDLORD shall ensure that the lighting of the Parking Retention Areas shall at all times meet a standard of no less than three (3) neet a standard of no less than five (5) foot candle minimum, which standards as to the Parkin Letention Areas and exterior of the Theatre are acknowledged by TENANT to be appropriat and adequate.
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ARTICLE 8: USE OF PREMISES
Section 8.01: USE AND TRADE NAME
(a) The "Permitted Use" means that the TENANT shall use the Premises solely for the operation of a first-class motion picture theatre, including the following: the operation of a video arcade with game machines for theatre patrons; the sale of popcorn, drinks, candy, specialty café items, and other foods and beverages sold in motion picture theatres; the sale and rental to theatre patrons of retail items, such as video cassettes, video discs, records, compact discs, dvds, books, magazines, toys and novelties; the making available of facilities and devices to further the operation of the Premises, including, without limitation, satellite dish transmission and reception facilities, telecommunications facilities and services, change machines, vending machines, automated teller machines and automated ticketing machines; depiction of advertising; meeting rooms; style shows; childcare services; live performances; presentations of concerts, sporting events, and simulcast events via satellite, hard lines and recorded transmissions; and sit- down restaurant or café use including, in accordance with applicable law, the sale of alcoholic beverages. The Permitted Use shall include such other components as may become appropriate due to changes in the circumstances of the motion picture theatre business. The Permitted Use is further subject to the provision that the Theatre shall not be used for display, presentation or advertisement of "X" rated or pornographic movies or presentations.
LANDLORD covenants that throughout the Rent Term, the Permitted Use may be conducted at the Premises. Any use of the Premises other than for the Permitted Use shall be subject to the prior written consent of LANDLORD, with LANDLORD's consent to be in the sole and absolute discretion of LANDLORD while the Covenant to Continuously Operate (defined in Section 8.07(b)) is applicable, and with LANDLORD's consent not to be unreasonably withheld, delayed or conditioned while the Covenant to Continuously Operate is not applicable.
TENANT shall operate in the Premises under the trade name "Theater Square", "Regal Cinemas", "Edwards Theatres", or another trade name incorporating the word "Regal" or "Edwards", or another trade name selected by TENANT used for theatres owned and operated by TENANT in Southern California.
Subject to compliance with the Permitted Use, TENANT shall have the sole right to select the motion pictures and other attractions exhibited in the Theatre, and LANDLORD shall have no expressed or implied right of censorship over any motion pictures or other attractions exhibited in the Theatre.
TENANT shall have the right to install, operate, maintain and repair poster cases, signs, automated ticket machines (which may include cash dispensing capabilities) on the pistic entrance vane he Premised in the Common Areas adjacent to the box office area and Section 8.02: HOURS
Section 8.03: OPERATIONAL REQUIREMENTS
TENANT agrees that it will:
(a) not, at the Premises, conduct or permit to be conducted any auction, fire, bankruptcy or going out of business sale, or similar type sale, or utilize any unethical method of usiness; provided, however, that this provision shall not restrict the absolute freedom (a etween LANDLORD and TENANT) of TENANT to determine its own selling prices nor sha S: IWPFILES12707D14431Lease-6(wms 11-16-11).doc 8.1
it preclude the conduct of periodic; seasonal promotional or clearance sales of the products which TENANT may sell pursuant to this Lease;
not use or permit the use of any apparatus for sound reproduction or transmission, including loudspeakers, phonographs, radios, televisions, and musical instruments, in such manner that the sounds so reproduced, transmitted or produced shall be unreasonably audible not cause or permit unreasonably strong, offensive or objectionable sound, sights, odors, fumes, dust or vapor to emanate or be dispelled from the Theatre, and will use the grease traps and ventilation systems installed as part of Landlord's Work; comply with all applicable federal, state and local environmental and other laws, rules, regulations, and guidelines, with respect to the use or occupancy of the Premises by TENANT;
(e) not use or permit the use of any portion of the Premises for any unlawful purpose; (f) provide, or cause to be provided all security within the Theatre as TENANT determines to be appropriate; and
conduct motion picture theatre operations with a full staff of employees and a complete stock of merchandise and other goods consistent with the use of the Theatre.
Section 8.04: ALTERATIONS
TENANT shall not permit any mechanic's or materialman's lien to attach against the Premises as a consequence of any alterations or remodeling by TENANT. TENANT shall not enlarge the prior written consent of LANDLORD.
Section 8.05: SATELLITE DISHES
Tenant's Work, and throughout the Rent Term, TENANT shall be permitted to maintain, repair and operate such satellite dishes or any replacement or additional dishes in connection with the Section 8.06: PROXIMATE SALES
Throughout the Rent Term and so long as TENANT is open and operating in the Premises for the Permitted Use, LANDLORD shall prohibit within the Common Areas and the Fore here Space fact d Popcoin Section on shal aply at airies during i Rent Term, without exception
Premises for the Permitted Use, LANDLORD shall prohibit within the Common Areas and the S:IWPFILES12707D/4431Lease-6 (wms 11-16-11).doc
ffering at least twenty-five (25) seats for customers, such as Five Guy's Burgers and Frie rovided, however, that TENANT's prior written approval (not to be unreasonably withheld o All pushcarts, kiosks, vending machines or any other temporary structures ol levices, other than those operated by TENANT, shall be prohibited by LANDLORD in the Section 8.07: OPENING AND CONTINUOUS OPERATION
Upon completion of Landlord's Work and Tenant's Work, receipt of final use and occupancy permits for the Theatre, and satisfaction of the Initial Development Requirements, Ongoing Development Requirements and the Title Contingency, TENANT shall open its business in the Premises consistent with the Permitted Use. "Permitted Closings" means any period of reasonable duration during which TENANT is unable reasonably to conduct business at the Premises, due to any of the following:
the making of alterations (as provided in Section 8.04); damage or destruction (as referenced in Section 12.01); performance by or on behalf of TENANT of any maintenance or repair which prevents the Premises from being open to the public for business; performance by or on behalf of LANDLORD of maintenance or repair which prevents the opening of the Premises for business the public; or any default under this Lease by LANDLORD. Except for Permitted Closing Ice TENANT has opened its business in the Premises TENANT shall continuously operate business in the Premises consistent with the Permitted Use, during the hours provided in Section
8.02, throughout the Rent Term (the "Covenant to Continuously Operate"), provided that such Covenant to Continuously Operate shall expire upon any earlier termination of this Lease, including without limitation as provided in Section 4.04.
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ARTICLE 9: COMMON AREAS
Section 9.01: USE OF COMMON AREAS
and privileged during the Rent Term to use on a non-exclusive basis all of the Common Areas Section 9.02: CAM OBLIGATION
operation of utility services for the Common Areas, including providing electricity, water, sewer service and other utility services, trash and garbage removal, snow and ice removal, pest control, litter control, painting, cleaning, and sweeping in the Common Areas; operation, maintenance, repair and replacement of all emergency, securit fe safety, fire alarm, fire extinguishment and burglar alarm systems serving the Common Are operation, maintenance, repair and replacement of gazebos, fountains, a atures, sculptures, fencing and similar items located within the Common Areas, if an planting, replanting, replacing, pruning, trimming, fertilizing, irrigating rulching and managing of all flowers, shrubbery, plants, trees and other landscaping within th Common Areas;
open-air areas until the Theatre is closed each night;
(8) re-paving, re-striping and cleaning of the paved parking areas; (9) repairing and cleaning of sidewalks;
(10) prevention, control and re-mediation of any mold or other form of contamination;
(11) controlling rodents and other pests;
(12) prevention and removal of graffiti;
(13) operation, maintenance, repair and replacement of the structure which wil ontain the trash compactor used by TENANT
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(14) operation, maintenance, repair and replacement of all stairways, elevators, escalators and other means of vertical transportation in the Common Areas; (15) operation, maintenance, repair and replacement of the lighting systems for the Common Areas;
(16) taking reasonable lawful steps to prevent loitering, the presence of intoxicated persons, persons engaged in criminal activities, and nuisances; and (17) maintaining all risk property, commercial general liability, and environmental insurance coverage on the Common Areas, with reasonably appropriate coverage amounts; and
(18) payment before delinquency of all Taxes (defined in Section 6.01) on the Common Areas or the Premises.
In no event shall TENANT be obligated to pay any charge, reimbursement or fee for TENANT's use of the Common Areas or the CAM Obligation performed by LANDLORD. obligated to take any action or make any changes based on TENANT's suggestions).
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ARTICLE 10: PROMOTION OF THEATRE
Section 10.01: PROMOTION OF THEATRE
LANDLORD and TENANT agree that any expenditure for advertising TENANT's contribute to any promotional, advertising or similar program. TENANT shall actively market and promote its business at the Theatre, but nothing shall obligate or require TENANT to market the Theatre in any specific medium.
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ARTICLE 11: INDEMNITY AND INSURANCE
Section 11.01: TENANT'S INSURANCE
'ENANT covenants and agrees that during the Rent Term from and after t ent Commencement Date, TENANT will carry and maintain, at TENANT's sole cost a xpense, the following types of insurance coverage, in the amounts specified and in the forr ereinafter provided for
Commercial general liability insurance covering TENANT's use of the remises against claims for personal injury, bodily injury, death and property damage wi rotection to the limit of not less than Two Million Dollars ($2,000,000.00) per occurrence ar in the aggregate, with such coverage written on a per location basis; In the event that TENANT serves alcoholic beverages within the Premises, liquor liability insurance providing coverage for LANDLORD and TENANT. ny insurance provided for in Section 11.01(a) may be maintained by means of olicy or policies of blanket insurance, covering additional items, locations or insured persons ‹ parties, provided that the requirements of Section 11.01(a) are thereby satisfied.
All policies of insurance provided for in Section 11.01(a) shall be issued by insurance companies with a Best's Rating of not less than Bt and a Best's Financial Performance Rating of not less than VII as rated in the most current available A.M. Bes Company Key Rating Guide and qualified to do business in the state in which the Premises is located. Notwithstanding
TENANT's properties shall be qualified to provide the insurance required under this Lease Each and every policy of insurance provided for in Section 11.01(a) shall:
or a certificate thereof shall) be delivered to LANDLORD within thirt 30) days after the Rent Commencement Date and thereafter within thirty (30) days after renewa or replacement;
contain a provision that the insurer will give to LANDLORD at least thirty (30) days notice in writing in advance of any material change, cancellation, termination, lapse, or reduction in the amounts of insurance coverage; be written as a primary policy which does not contribute to and is not in excess of coverage which LANDLORD may carry; and
name LANDLORD and LANDLORD's mortgagee (if identified to TENANT by LANDLORD) as additional insured parties and additional loss payees.
Section 11.02: INDEMNITY
TENANT does hereby agree to and shall defend, indemnify and save harmless undertaking by TENANT shall not include, and TENANT shall not be liable for damage, injury, or the defense of any claims occasioned by the willful act or negligence of LANDLORD, which is the cause of any such damage or injury, to the extent that such damage or injury is not covered by insurance maintained by TENANT.
obligation, damage or liability (i) arising from any occurrence in or about the Center or Parking Retention Areas but outside the Premises, including the Common Areas, or (ii) occasioned il LANDLORD.
Section 11.03: MUTUAL WAIVERS
LANDLORD and TENANT hereby waive any rights each may have against the other on account of any loss or damage occasioned to LANDLORD or TENANT, as the case may be, covered pective and exte, del coverages osurine, and on of the enter very under valy and their respective property, collectible policies of such insurance, provided that such waiver does not invalidate such policies or prohibit recovery thereunder. The parties hereto each, on behalf of their respective insurance Section 11.04: LANDLORD'S INSURANCE
LANDLORD covenants and agrees that from and after the Rent Commencement ate, LANDLORD will carry and maintain, at its sole cost and expense, the following types surance, in the amounts specified and in the form hereinafter provided fo Commercial general liability insurance, with TENANT named as an Property insurance covering all improvements of the Common Areas Property insurance covering the Theatre, in an amount of not less than full placement cost, providing special, earthquake, and flood protection, including, but not limit , protection against the perils of fire, vandalism, malicious mischief, earthquake, storm a S: WPFILES12707D/443\L.ease-6 (wms 11-16-11).doc 11.2
Company Key Rating Guide and qualified to do business in the state in which the Premises is (d) Each and every policy of insurance provided for in Section 11.04(a) shall:
day aner the Rem Come crite at and that be live to dry itin eity 30) replacement;
contain a provision that the insurer will give to TENANT at least thirty 30) days notice in writing in advance of any material change, cancellation, termination, lapse, o eduction in the amounts of insurance coverage
be written as a primary policy which does not contribute to and is not in excess of coverage which TENANT may carry; and
name TENANT and TENANT's mortgagee (if identified
LANDLORD by TENANT) as additional insured parties and additional loss payees.
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ARTICLE 12: DAMAGE OR DESTRUCTION
Section 12.01: DUTY TO RECONSTRUCT FOLLOWING CASUALTY
(a) In the event the Theatre is damaged or destroyed by any of the perils referred to in Section 11.04(a)(3) against which LANDLORD is required to procure insurance, following the issuance of all necessary governmental approvals and building permits and the release by the insurance provider of the proceeds from the insurance with respect to such damage o1 destruction, unless this Lease is terminated pursuant to Section 12.03 or otherwise terminated, LANDLORD shall repair or reconstruct the Theatre. LANDLORD shall prosecute all such work diligently to completion, and LANDLORD diligently shall pursue completion of such reconstruction work within one year or less following the occurrence of the casualty. If the governmental approvals and building permits are issued and the insurance proceeds are made available to LANDLORD, LANDLORD shall commence such repair or reconstruction within ninety (90) days after the occurrence of the casualty. The repair or reconstruction shall be in conformity with the original construction plans for the Theatre as modified and supplemented by the Approved Plans, and any deviations therefrom shall be subject to the prior approval of both LANDLORD and TENANT, which may be withheld in the sole discretion of each party. The repair or reconstruction shall be conducted in compliance with all applicable governmental requirements and in a good and workmanlike manner. Section 3.09 concerning mechanic's liens and Section 3.10 concerning insurance during construction shall be applicable to such repair or reconstruction.
(b)
governmental approvals and building permits and the release by the insurance provider of the proceeds from the insurance with respect to such damage or destruction, unless this Lease is terminated pursuant to Section 12.03 or otherwise terminated, LANDLORD shall repair or reconstruct the Common Areas. LANDLORD shall prosecute all such work diligently to completion, and LANDLORD diligently shall pursue completion of such reconstruction work within one year or less following the occurrence of the casualty. If the governmental approvals and building permits are issued and the insurance proceeds are made available to LANDLORD, LANDLORD shall commence such repair or reconstruction within ninety (90) days after the occurrence of the casualty. The repair or reconstruction shall be conducted in compliance with all applicable governmental requirements and in a good and workmanlike manner. Section 3.09 concerning mechanic's liens and Section 3.10 concerning insurance during construction shall be applicable to such repair or reconstruction.
Section 12.02: DUTY TO REPAIR OR REPLACE EQUIPMENT
y LANDLORD. Section 3.09 concerning mechanic's liens and Section 3.10 concerning insurance during construction shall be applicable to such repair or reconstruction Section 12.03: RIGHT TO TERMINATE
(a) Each of LANDLORD and TENANT shall have the option to terminate this _ease upon giving written notice to the other party of the exercise thereof within sixty (60) days fter the Theatre is materially damaged or destroyed if
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any material damage to or destruction of the Theatre occurs within the last three (3) Rent Years of the Rent Term, if the reasonably estimated cost of repair and reconstruction is twenty-five percent (25%) or a greater percentage of the reasonably estimated cost to reconstruct the Theatre in its entirety.
Unless this Lease is terminated as provided in subsection (a) above, this Lease shall continue in full force and effect, LANDLORD shall perform all of its obligations under Section 12.01 and TENANT shall perform all of its obligations under Section 12.02.
Upon any termination of this Lease under any of the provisions of this Section
12.03, the Rent shall be adjusted as of the date of such termination and the Lease shall terminate as if such date were the natural expiration date of the Rent Term coincident with the surrender of possession of the Premises to the LANDLORD, except for items which have theretofore accrued nd are then unpaid; and the insurance proceeds paid on account of damage to the Theatre shal e distributed to LANDLORD, while all insurance proceeds paid on account of damage t Tenant's Property shall be distributed to TENANT.
Section 12.04: ABATEMENT OF RENT
If the Theatre is rendered wholly or partially unfit for carrying on TENANT's business y damage or destruction covered by this Article 12, then the Rent payable by TENANT unde his Lease during the period that the Theatre is so rendered unfit shall be equitably abated c SIWPILES27070443 Lease-6 (wms 11-16-11) doc 12.2
ARTICLE 13: MAINTENANCE OF THE THEATRE
Section 13.01: LANDLORD'S MAINTENANCE DUTY
From and after the Delivery Date and throughout the Rent Term, in addition to vails, including painting and exterior lights on the Theatre (except the Building Signs and light hat are part of the Building Signs); the site for the Theatre, and all related site amenities; th and al other maintenance and repais excepted maintenade and repairs for which TENANT is expressly responsible pursuant to this Lease.
With respect to LANDLORD's maintenance and repair obligation pursuant to Section 13.01(a), if: (i) any such repair is not completed within five (5) days after notice from TENANT, or if such repair cannot reasonably be completed within such five (5) day period and LANDLORD fails to commence prosecution of such repair within such five (5) day period and diligently and continuously prosecute the work to completion, and (i) such disrepair either (A) materially adversely affects TENANT's use of the Premises to conduct TENANT's business within the Premises, (B) constitutes a breach of LANDLORD's obligation of maintenance in a good, first class condition, or (C) results in material damage to either Tenant's Property or any portion of the Premises for which TENANT has the maintenance and repair responsibility pursuant to Section 13.02, then TENANT may perform such repair and provide LANDLORD a written statement of the reasonable costs incurred for performance of such repair (the "Self-help Cost Statement"). However, if an emergency results from any matter for which LANDLORD has the maintenance and repair obligation pursuant to Section 13.01(a), which emergency (i) adversely affects TENANT's use of the Premises to conduct TENANT's business within the Premises or (i) results (or has the reasonably expected potential to result) in material damage to either Tenant's Property or any portion of the Premises for which TENANT has the maintenance and repair responsibility pursuant to Section 13.02 or injury or death to any person, TENANT shall have the right immediately upon the occurrence of such emergency to prosecute any and all such necessary repairs, and TENANT shall provide LANDLORD the Self-help Cost Statement for such repairs as soon as reasonably practicable. In each instance of TENANT providing LANDLORD a Self-help Cost Statement, if within thirty (30) days after LANDLORD's receipt of such Self-help Cost Statement, together with copies of contractors' and suppliers' invoices or other reasonable backup documentation, LANDLORD does not deliver to TENANT a full reimbursement of the reasonable costs incurred for performance of such repair, TENANT may recover the full un-reimbursed amount of such reasonable costs plus interest at the Default Rate (defined in Article 16) by offsetting the reasonable cost of such repairs plus the interest at the Default Rate against the next maturing monthly installment or installments of Rent due hereunder, subject to the provision that the total amount which TENANT may offset each month shall be limited to the greater of: (i) twenty-five percent (25%) of the monthly installment of Base Rent or (i) either (A) if the offset does not commence during the last two Rent Years of the Rent Term, one-twenty-fourth (1/24th) of the total of the un-reimbursed amount of such costs plus interest at the Default Rate or (B) if the off set commences within the last two Rent Years of the Rent Term, the amount per month resulting from the division of the un-reimbursed amount of such costs plus interest at the Default Rate by the number of months remaining during the Rent Section 13.02: TENANT'S MAINTENANCE DUTY
Throughout the Rent Term, TENANT shall, or shall cause others to, maintain and repair (with replacements as necessary), in good, first class condition, in compliance with applicable governmental requirements, and at the sole cost and expense of TENANT or the others, but at no expense to LANDLORD: interior, non-structural elements of the Theatre, including general cleaning within the Theatre and maintaining the cleanliness, glass and doors of the Theatre S:IWPFILES12707D/4431Lease-6(wms |1-16-11).doc 13.1
storefront; Tenant's Equipment; Building Signs, including the lights that are part of the Building signs; and minor maintenance and repair of plumbing (such as clearing stoppages in pipes tha riginate inside the Premises and can be cleared from within the Premises, and repair an eplacement of faucets within the Premises) and utility (such as repair and replacement of ligh ixtures, bulbs and ballasts within the Premises) pipes and lines located within the interio surface of the walls, ceilings and floors of the Theatre (but not between the interior and exterior walls, ceilings and floors).
Section 13.03: RIGHT OF ACCESS TO THE PREMISES
LANDLORD and its authorized representative, upon twenty-four (24) hours' prio notice to TENANT, may enter the Premises during usual business hours for the purpose o inspecting or making any repairs to the Premises or to any utilities, systems or equipment locatec in, above or under the Premises which LANDLORD may deem necessary or desirable to comply with all applicable governmental requirements, or to comply with any other obligations that are LANDLORD's responsibility under this Lease; provided, however, that LANDLORI ppropriate in the case of an emergency (which involves or reasonably is expected to involv lamage to property or injury or death to any person) without the necessity of prior written notic being provided to TENANT.
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ARTICLE 14: TENANT'S PROPERTY AND SIGNS
Section 14.01: TENANT'S PROPERTY.
Section 14.02: TENANT'S SIGNS
TENANT shall have the right to install, maintain, repair, operate and replace, at TENANT's sole cost and expense, prominent signs on the exterior of the Theatre ("Building Signs") at the locations shown on the Approved Plans. The design and format of the Building Signs shall be consistent with that typically used at motion picture theatres operated by TENANT, including neon, iLight, fiber optic and up/down lighting. (b) TENANT shall be entitled to a panel on all directional and way-finding signs within the Center (Wayfinding Signs"). LANDLORD shall maintain and repair such Wayfinding Signs at its sole cost and expense. The Wayfinding Signs shall include prominent signs specific to TENANT that direct customers to the Parking Retention Areas and from the Parking Retention Areas to the Theatre, such TENANT-specific Wayfinding Signs to be subject to TENANT's prior approval, not to be unreasonably withheld or delayed.
TENANT shall be entitled to install a panel on at least one monument sign and one pylon sign (together the "Center Signs") within the Center, with the monument sign located near the primary entrance to the Center and the pylon sign located so as to be visible from Interstate 215. The location of TENANT's panel on such Center Signs shall be determined by the GLA of each Center tenant or occupant having a panel on such Center Signs, with the Center tenant or occupant having the largest GLA being entitled to the most prominent position on such Center Signs, the Center tenant or occupant having the second largest GLA being entitled to the second most prominent position on such Center Signs, and so forth. LANDLORD shall install, maintain, repair and replace the Center Signs at its sole cost and expense, and TENANT shall install, maintain, repair and replace its panel on such Center Signs at its sole cost and expense.
TENANT shall obtain all necessary governmental and other approvals for the Building Signs as part of the Building Permits, and LANDLORD shall obtain all necessar governmental and other approvals for the Wayfinding Signs and Center Signs as part of the Development Approvals.
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ARTICLE 15: ASSIGNMENT AND SUBLETTING
Section 15.01: ASSIGNMENT PERMITTED
Provided that an Event of Default (defined in Section 16.01) then is not in effect, TENANT (and/or TENANT's leasehold mortgagee if such leasehold mortgagee succeeds to th nterest of TENANT in this Lease) may, without the prior specific consent of LANDLORD such consent by LANDLORD being hereby given, assign TENANT's right, title and interest in his Lease to any individual or entity which by written instrument assumes all obligations o TENANT under this Lease and which satisfies one or more of the following criteria (as follow:
collectively, the "Specified Assignment Criteria"): (1) wholly owns the corporation (or other entity) which is TENANT; (2) is wholly owned by the corporation (or other entity) which wholly owns the corporation (or other entity) which is TENANT; (3) operates movie theatres issignment Cntena, upon such assignee's written agreement of assumption of all of TENANT'S obligations under this Lease, the assignor TENANT shall be relieved and discharged from any further liability, obligations and duties under this Lease accruing subsequent to the effective date of such assignment or transfer.
Provided that an Event of Default (defined in Section 16.01) then is not in effect, ease assignment instrument) that the transaction has been completed. Nothing in this Sectio
5.01(c) shall be deemed to require LANDLORD's consent or approval to any transactic described in Section 15.01.
Section 15.02: CONSENT REQUIRED
At least thirty (30) days before the proposed effective date of the assignment (2) Within ten (10) days after the effective date of the assignment or subletting Landlord receives a fully executed copy of the applicable assignment agreement or sublease; No Event of Default by TENANT exists at the time of the consent request and at the effective assignment or subletting date;
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(4) Any assignment or subletting will be upon and subject to all terms and conditions of this Lease, including those regarding the Permitted Use; No assignment or subletting will be to a then existing tenant or occupant o he Center nor violate or conflict with the rights of any such party Section 15.03: MERGER, CONSOLIDATION
(a) TENANT shall not be restricted in any way from merging or consolidating with any other corporation or entity, if such merger or consolidation is conducted in accordance wit applicable law, and the surviving corporation or entity of such merger or consolidation shall b the TENANT of this Lease.
person or entity to anofe person on eshiy shal bin initen or restinted in any ay by any provision of this Lease, and TENANT shall continue being legally bound by this Lease afte such ownership transfer, the same as if such ownership transfer had not occurrec (c) TENANT may, without the prior consent of LANDLORD, such consent by LANDLORD being hereby given, assign or transfer its interest in this Lease to any entity in which or with which TENANT, or its corporate successors or assigns, is merged or consolidated. orporation, such TENANT may, v
LANDLORD being hereby given, enter into or participate with a bona fide unrelated third party in one or more: (1) mergers, entity acquisitions, consolidations, or corporate reorganizations, (2) sales, exchanges, issuances or other transfers of its capital stock (including without limitation any "going public" stock sale), (3) mortgages, pledges or hypothecations of its capital stock, or Section 15.04: MORTGAGE OF LEASEHOLD
TENANT shall have the continuing right, once or more often, without obtaining holder of such Leasehold Mortgage being herein referred to as a "Leasehold Mortgagee") to an institutional lender.
(b) LANDLORD does hereby subordinate its LANDLORD's lien rights, if any, in Tenant's Property to the lien of such Leasehold Mortgagee.
The Leasehold Mortgagee or its assigns may enforce such Leasehold Mortgage and acquire TENANT's leasehold estate created under this Lease in any lawful way, and, S:WPFILES12707D\443\Leasc-6 (wms 11-16-11).doc 15.2
pending foreclosure of such Leasehold Mortgage, may, without further consent of LANDLORD, sell and assign TENANT's leasehold estate hereby created, subject, however, to the terms, covenants and conditions contained elsewhere in this Lease; provided that (1) any such sale or assignment is expressly made subject to all of the monetary and non-monetary terms, covenants and conditions of this Lease; (2) prior to any such sale or assignment there exists no uncured Event of Default (defined in Article 16 hereof); (3) the purchaser or transferee would otherwise be a person or entity that satisfies one or more of the Specified Assignment Criteria provided in Section 15.01(a); and (4) any permitted transferee shall assume in writing all of the monetary and non-monetary terms, covenants and conditions of this Lease. Notwithstanding the provisions of Article 16, an Event of Default shall not be deemed to exist solely by reason of Leasehold Mortgagee's enforcement of the Leasehold Mortgage in the manner provided in this paragraph.
In the event the purchaser or transferee would not otherwise be a person or entity that satisfies one or more of the Specified Assignment Criteria provided in Section 15.01(a), such purchaser or transferee shall be subject to LANDLORD's prior written consent as provided in Section 15.02.
If TENANT has encumbered TENANT's leasehold estate created under this Lease by a Leasehold Mortgage, and the Leasehold Mortgagee has given LANDLORD written notice of the creation thereof (which notice also shall specify the address for notices, the telephone number, the facsimile number and the party or department to whom notices should be given), then LANDLORD, at the same time as it gives notice of a default of this Lease to TENANT, shall, in addition, give the same notice to the Leasehold Mortgagee, and no such notice shall be deemed to have been given to TENANT unless and until a copy thereof shall have been so given to such Leasehold Mortgagee. Said Leasehold Mortgagee (its agents, receivers, trustee and anyone claiming under such Leasehold Mortgagee) upon the receipt of any such notice shall have the immediate right to remedy any default in the payment of money and any other default within the period allowed TENANT for rectification thereof and this Lease shall remain in full force and effect during and throughout the period specified in this Section, and the rights and remedies provided LANDLORD under Article 16 shall not be exercisable by LANDLORD after TENANT shall default or be deemed to have defaulted under this Lease unless said Leasehold Mortgagee shall have failed to rectify the same during or within the aforesaid period of time allowed said Leasehold Mortgagee for rectification thereof as hereinabove set out; it being understood that (1) a default of this Lease which cannot be cured by the payment of money shall be deemed to have been rectified within the period allowed said Leasehold Mortgagee by the terms hereof if rectification thereof and such correction thereafter shall be commenced within the period and thereafter prosecuted with reasonable diligence to completion during a cure period which is of the same length as the cure period provided TENANT in this Lease, but with the cure period for Leasehold Mortgagee commencing upon notice to Leasehold Mortgagee rather than upon notice to TENANT; (2) if the Leasehold Mortgagee cannot reasonably take the action required to cure such default without being in possession of the Premises, the time within which the Leasehold Mortgagee has to rectify such default, as hereinabove set out, shall be deemed extended to include the period of time required by it to obtain such possession (including possession by a receiver) with due diligence; and (3) the time within which such Leasehold Mortgagee shall be required to obtain possession of the easehold Mortgagee is attempting to cure a default under this Lease by TENANT must be pair o LANDLORD as it comes due for payment either by TENANT, by Leasehold Mortgagee o as the tenant of this Lease.
All payments so made and all things so done and performed by said Leasehold S:1WPFILES12707D\443\Lcasc-6 (wms 11-16-11).doc 15.3
'ENANT, that said Leasehold Mortgagee, on making good and rectifying any such default o he part of TENANT, shall be thereby subrogated to any and all rights of TENANT under thi possession of the Premises.
All notices by LANDLORD to a Leasehold Mortgagee pursuant to this Section or specified to LANDLORD by such Leasehold Mortgagee.
Section 15.05: LICENSE
TENANT shall not be restricted in any way from granting to any person or entity a license, from time to time, to operate video games and other amusement devices (electronic or otherwise); sell food, beverages and refreshments for on-premises consumption; sell alcoholic beverage for on-premises consumption (subject to compliance with applicable governmental requirements); sell movie theatre related goods, wares, merchandise or services; operate automated ticket or cash dispensing machines, or both; provide childcare services; provide digital (or other) projection for auditoriums; or any other use or purpose included in the Permitted Use. Further, TENANT shall have the right to enter into four-wall licenses, subleases or similar arrangements with third-parties, pursuant to which such third-parties shall be permitted to use on the Premises, or one or more Theatre auditoriums within the Premises on a limited- engagement basis. The proceeds received by TENANT from any license or other arrangement entered into pursuant to this Section 15.05 shall be included in Gross Sales pursuant to Section
5.04(b)(1)(B)(vi), subject to any Applicable Exclusions and Deductions provided in Section S:IPFILES|2707D\443\Lease-6 (wms 11-16-11).doc 15.4
ARTICLE 16: DEFAULTS BY TENANT
Section 16.01: EVENTS OF DEFAULT
Each of the following shall constitute an "Event of Default":
(a) With respect to each occurrence of TENANT's failure to pay the full amount of any installment of Rent when due for which LANDLORD provides TENANT written notice of such delinquency, if such delinquent amount is not paid by TENANT to LANDLORD within five (5) days after TENANT receives such written notice of delinquency; The taking of TENANT's leasehold estate on execution or other process of lav xcept through action taken by or on behalf of the holder of a leasehold mortgage (leaseho deed to secure debt or leasehold deed of trust) of TENANT's leasehold estate; Except for cases subject to other subsections of this Section 16.01, each failure of Section 16.02: REMEDIES AND DAMAGES
In addition to any and all other rights or remedies of LANDLORD expressly stated in this Lease or otherwise provided by law or in equity, upon the occurrence of an Event of Default, LANDLORD shall have the right:
To terminate this Lease by providing written notice thereof to TENANT, then, after TENANT has had the opportunity to remove Tenant's Property, to re-enter the Premises and take possession thereof, and neither LANDLORD nor TENANT shall have any obligation pursuant to this Lease to the other for the period from and after such termination of this Lease and re-entry of the Premises by LANDLORD); or 12) Upon written notice to TENANT, to permit the Lease to continue in effect, with TENANT in possession of the Premises, and to collect Rent as it becomes due (b) Upon the occurrence of an Event of Default, LANDLORD shall be entitled t recover the following damages:
an amount to compensate LANDLORD for reasonable attorneys' fees anc itigation costs incurred as a result of the Event of Default TENANT shall have no liability for any other damages, and specifically but without limitation, shall have no liability for any special, consequential or punitive damages.
Section 16.03: MITIGATION
[intentionally deleted]
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Section 16.04: DEFAULT RATE
All damages recovered by either LANDLORD or TENANT due to a default under this Lease shall bear interest at the "Default Rate" which is defined as the Prime Rate per annum as published in the Wall Street Journal under the heading of "Money Rates" plus two percent (2%) per annum, or if such interest rate is deemed unlawful because it exceeds the highest rate permitted under the laws of the state in which the Premises is located, then the highest rate permitted under the laws of the state in which the Premises is located.
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ARTICLE 17: LIABILITY OF LANDLORD
Section 17.01: LANDLORD'S DEFAULT
(a) LANDLORD shall be in default under this Lease if: (1) any of the required Non-distuband Agree Til espen to easil Loan incumbrance effect 2e 95) the Title Date.
SETBATE
In addition to any rights TENANT may have under this Lease by law or in equity, including without limitation the right to recover damages, reasonable attorneys' fees and litigation costs incurred in seeking such damages, and the right to terminate this Lease based on a default hereunder by LANDLORD, upon written notice to LANDLORD, at TENANT's option (exercisable in TENANT's sole and absolute discretion):
in the event of a default of any performance obligation of LANDLORD under this Lease, TENANT may incur any reasonable expense necessary to perform the obligation of LANDLORD specified in such notice and perform such obligation, and, unless LANDLORD reimburses TENANT the reasonable costs therefor within thirty (30) days following notice thereof from TENANT, TENANT shall have the right to deduct or offset such reasonable expenses together with interest at the Default Rate (defined in Section 16.04) from the Rent as it comes due, subject to the provision that the total amount which TENANT may offset each month shall be limited to the greater of: (i) twenty-five percent (25%) of the monthly installment of Base Rent or (ii) either (A) if the offset does not commence during the last two Rent Years of the Rent Term, one-twenty-fourth (1/24th) of the total of the un-reimbursed amount of such costs plus interest at the Default Rate or (B) if the off set commences within the last two Rent Years of the Rent Term, the amount per month resulting from the division of the un-reimbursed amount of such costs plus interest at the Default Rate by the number of months remaining during the Rent Term;
aird party plus interest thereon at the Default Rate by off set against Rent as such Rent come ue for payment under this Lease
If LANDLORD has mortgaged its right, title and interest in the Center and LANDLORD.
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The rights and remedies herein reserved by or granted to TENANT are distinct, separate and cumulative, and the exercise of any one of them shall not be deemed to preclude, (f) LANDLORD shall have no liability for any special, consequential or punitive damages.
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ARTICLE 18: NON-DISTURBANCE AGREEMENT
Section 18.01: SUBORDINATION OF LEASE
Each mortgage, deed of trust, deed to secure debt or other lien against LANDLORD's title to the Land, the Center or the Premises is referred to in this Lease as a "Fear to herbianca, and he morge, de neidar, oracle of lach ane, atomran a it referred to herein as a "Loan Encumbrance Holder" subordination agreement which is substantially the same as the form attached hereto as Exhibit F or which is similar in content to the form attached hereto as Exhibit F and is reasonably acceptable to TENANT is referred to herein as a "Non-disturbance Agreement".
Subject to the agreement by the Loan Encumbrance Holder of such Loan in lieu of a foreclosure pursuant to the Loan Encumbrance, TENANT agrees that this Lease is, and shall always be, subordinate to the lien of each Loan Encumbrance, regardless of whethe such Loan Encumbrance now exists or may hereafter be created, as such lien applies to any anc and the delivery to TENANT of such Non-disturbance Agreement. (c) TENANT agrees that any Loan Encumbrance Holder may elect to have this ease prior to the lien of its Loan Encumbrance, and in the event of such election and upo notification by such Loan Encumbrance Holder to TENANT to that effect, this Lease shall be deemed prior to the lien of the Loan Encumbrance, whether this Lease is dated or placed of record prior to or subsequent to the date of said Loan Encumbrance.
Section 18.02: TENANT'S ATTORNMENT
of LANDLORD's title to the portion of the Land containing the Premises as LANDLORD Section 18.03: NON-DISTURBANCE AGREEMENT
With respect to each Loan Encumbrance effective as of the Title Date (defined in soir, a0 aliver to TENANT on le Til Date a Nordistian be Agent no 165 than two counterparts).
the Tide Date defined in Section 204al, LAbanD shed exete prive exein bater With respect to each Loan Encumbrance caused to be effective commencing after S: WPFILES12707D1443\Lease-6 (wms 11-16-11).doc 18.1
Section 18.04: INSTRUMENTS TO CARRY OUT INTENT
LANDLORD and TENANT agree that, upon the request of the other party to this Lease, or any Loan Encumbrance Holder, LANDLORD or TENANT shall execute and deliver whatever instruments may be required for such purposes to carry out the intent of this Article 18.
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ARTICLE 19: ESTOPPEL CERTIFICATES
Section 19.01: AGREEMENT TO DELIVER
other accurate statements about the Lease as may be reasonably requested. LANDLORD agrees at the Estoppel Certificate which LANDLORD shall provide may be in the form of th ANDLORD's Estoppel Certificate attached hereto as Exhibit G, if so requested by TENANT In each event that either LANDLORD or TENANT is requested to provide more than one Estoppel Certificate within any period of three hundred sixty-five (365) consecutive days, the requesting party shall pay to the requested party One Thousand Dollars ($1,000.00) as a precedent condition to the requested party's obligation to provide such Estoppel Certificate to the requesting party.
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ARTICLE 20: QUIET ENJOYMENT
Section 20.01: QUIET ENJOYMENT
LANDLORD agrees that, if TENANT pays the Rent as provided herein and observes and performs all terms and conditions on TENANT's part to be observed and performed pursuant to this Lease, TENANT shall peaceably and quietly hold and enjoy the Premises for the Rent Term without molestation, hindrance or interruption by LANDLORD or any other persor or entity, and LANDLORD shall defend, indemnify and hold harmless TENANT against any claim, expense or any loss arising from LANDLORD's breach of this covenant of quie enjoyment. In the event of LANDLORD's breach of this covenant of quiet enjoyment, ir addition to any other remedy, TENANT shall be entitled to an equitable abatement of all Rent with respect to all or any portion of the Premises, TENANT's use of which is hindered by suck preach, from the occurrence of the breach until the breach is cured. Throughout the Rent Term LANDLORD shall preserve. the Center as a first-class retail and entertainment center and as an ensemble in a business climate compatible with TENANT's use of the Premises as a motion picture theatre business.
Section 20.02: TITLE REPORT, SURVEY & FLOOD PLAIN CERTIFICATE (a) No later than thirty (30) days after the Title Date, LANDLORD shall obtain from a reputable national title insurance company and provide to TENANT evidence of the status of title to the Land as of the Title Date or some later date in the form of an ALTA leasehold owner's title insurance commitment or title report, which commitment or report shall set forth the state of title thereto including the recording references to the documents) by which LANDLORD holds title to the Land and to all documents which constitute a Loan Encumbrance (defined in Section 18.01) or exceptions to the title of LANDLORD. Copies of the documents y which LANDLORD's title is held and of any document which constitutes a Loar Encumbrance or exception to such title shall be provided by LANDLORD to TENANT with the commitment or report. Whether or not TENANT purchases the title insurance shall be in the discretion of TENANT, and if TENANT does elect to purchase the title insurance TENANT shall pay all costs for such title insurance.
No later than thirty (30) days after the Effective Date, LANDLORD shall provide to TENANT a copy of the most recent survey on the Land in LANDLORD's possession.
A "Flood Plain Certificate" is a certificate issued by a duly licensed or registered surveyor stating whether or not any portion of the site for the building containing the Premises is located within a flood plain as determined by reference to the maps prepared and maintained by the United States Army Corps of Engineers, the Federal Emergency Management Agency or other source relied upon in California. No later than thirty (30) days after the Effective Date, LANDLORD shall provide to TENANT a copy of the most recent Flood Plain Certificate in LANDLORD's possession. The Flood Plain Certificate may be provided on the survey obtained pursuant to Section 20.02(b).
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ARTICLE 21: SURRENDER AND HOLDING OVER
Section 21.01: DELIVERY AFTER TERM
Upon the expiration or earlier termination of the Rent Term, TENANT shall deliver and surrender to LANDLORD possession of the Theatre (including any Landlord's Equipment then-remaining in the Theatre), broom cleaned, free of debris, in good order, condition and state of repair (excepting any maintenance or repair that is LANDLORD's ›bligation under this Lease and ordinary wear and tear) but otherwise in its then "AS IS Upon the expiration or earlier termination of the Rent Term, TENANT shall have the right to remove from the Theatre the following items of Tenant's Equipment (the "Removable Equipment"): (i) the items described on Exhibit K, (ii) all digital video equipment and digital audio equipment, (iii) all concession equipment, (iv) all items containing logos, slogans, trade names or trade marks of TENANT or its affiliates, (v) any Tenant's Property not included in Tenant's Equipment, and (vi) all items that are not owned by TENANT, but instead are and available for e aNt's emousa quip ease, license main aripment) stall be subject to the following
In the event the Rent Term is terminated prior to the completion of the ith (5th) Rent Year, TENANT shall retain ownership of the Remaining Equipment and shal (2) In the event the Rent Term is terminated after completion of the fifth (5th) Rent Year but before completion of the tenth (10th) Rent Year, LANDLORD shall have the option to purchase such Remaining Equipment at the amortized value of such Remaining Equipment shown on TENANT's books, such option exercisable by LANDLORD only by delivering written notice to TENANT within thirty (30) days after notice that the Rent Term is to be terminated. Closing of the purchase of such Remaining Equipment shall occur upon the later of the effective date of the termination or twenty (20) days after LANDLORD's written notice to TENANT exercising such option. In the event LANDLORD does not elect to purchase the Remaining Equipment pursuant to this Section 21.02(b)(2), TENANT shall retain ownership of the Remaining Equipment and shall have the right to remove such Remaining Equipment from the Theatre.
In the event the Rent Term is terminated after completion of the tenth (10th) Rent Year, LANDLORD shall have the option to purchase such Remaining Equipment at a price of One Dollar ($1.00), such option exercisable by LANDLORD only by delivering written notice to TENANT within thirty (30) days after notice that the Rent Term is to be terminated. Closing of the purchase of such Remaining Equipment shall occur upon the later of the effective date of the termination or twenty (20) days after LANDLORD's written notice to TENANT exercising such option. In the event LANDLORD does not elect to purchase the In removing any Tenant's Property or other Tenant's Equipment from the Theatre, TENANT shall repair any damage resulting from such removal (except to the extent Section 21.02: EFFECT OF HOLDING OVER
expiration of the rent Tam of this ease if the any es or sed are in to, al, the S:1WPFILES12707D1443/Lease-6 (wms 11-16-11).doc 21.1
TENANT shall be deemed to be a TENANT of the Premises at sufferance pursuant to a month- S:IWPFILES12707D\443Lcasc-6 (wms 11-16-II).doc 21.2
ARTICLE 22: CONDEMNATION
Section 22.01: ALL OR ANY PART OF PREMISES TAKEN
As used herein, a "Taking" means the taking by right of eminent domain or by agreement or conveyance in lieu thereof by, or pursuant to, governmental authority of certain property either permanently or for a period greater than ninety (90) consecutive days for any public or quasi-public use or purpose.
If the whole or any material part of the Theatre shall be the subject of a Taking, this Lease shall terminate as of the day possession shall be taken by such authority, and Tenant Lease with respect to any Taking for a temporary period of less than three hundred sixty-six (366) days or any Taking of some, but not all, of the auditoriums of the Theatre, with such right exercised by TENANT providing to LANDLORD written notice of such election to negate the automatic termination of this Lease within sixty (60) days from and after the day possession of the whole Theatre or any material part of the Theatre is taken. In the event TENANT negates the automatic termination of this Lease with respect to any Taking for a temporary period of less than three hundred sixty-six (366) days, Rent shall abate equitably in proportion to the part of the Theatre so taken throughout such period of temporary Taking. In the event TENANT negates If a material portion of the Center, which portion does not include the Theatre (the taking of the Theatre being covered by subsection (b) above), is the subject of a Taking and in the reasonable judgment of LANDLORD, the continued operation of the Center as a shopping center is not viable, then LANDLORD shall have the right to terminate the Rent Term upon providing TENANT no less than sixty (60) days notice, in which event TENANT may remove Tenant's Property as provided in Section 14.01 and Section 21.01 and TENANT shall surrender possession of the Theatre to LANDLORD; and LANDLORD shall promptly demolish the Theatre and shall not cause or permit any portion of the Center to be used for a motion picture theatre for a period of ten (10) years from and after such termination of the Rent Term.
Section 22.02: TAKING OF PARKING SPACES
If any of the automobile parking spaces of the Parking Retention Areas (defined in Section 1.07(a)) shall be the subject of a Taking and LANDLORD does not replace the taken automobile parking spaces with an equivalent number of paved automobile parking spaces (which thereafter shall be deemed to be part of the Parking Retention Areas) located no further than one thousand (1,000) linear feet from the pedestrian entrance to the Theatre, within sixty (60) days following the taking of possession of the automobile parking spaces of the Parking Retention Areas, TENANT shall have the right, in TENANT's sole and absolute discretion, to terminate this Lease upon notice in writing to LANDLORD within one hundred twenty (120 lays after possession of the automobile parking spaces is taken. If TENANT does not elect to terminate this Lease, LANDLORD shall use commercially reasonable efforts to provide dequate substitute parking for the taken automobile parking spaces that is reasonabl atisfactory to TENANT as soon as practicable. In the case of a Taking of the automobi parking spaces of the Parking Retention Areas, such substitute parking spaces then shall be deemed to be part of the Parking Retention Areas.
Section 22.03: OWNERSHIP OF AWARD
As between LANDLORD and TENANT, upon the occurrence of a Taking of the Theatre, all of the damages, award or compensation for the Theatre shall belong to LANDLORD. TENANT shall have the right to claim and recover from the Taking authorit such compensation as may be awarded or recoverable by TENANT in TENANT's own right fo or on account of damages to, or of cost or expense which TENANT would incur in removing oF relocation of NA's busines, and for ory or des time yo iN ats usines and for injury or detriment to TENANT's business.
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provided that such separate award to TENANT does not reduce the award to LANDLORD; provided, further, TENANT may negate the termination of this Lease until completion of any obligations under the Lease.
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ARTICLE 23: MISCELLANEOUS
Section 23.01: INTERPRETATION
The captions, table of contents and index of defined terms appearing in this Lease ure inserted only as a matter of convenience and in no way amplify, define, limit, construe, o lescribe the scope or intent of such sections of this Lease nor in any way affect this Least Except where otherwise expressly provided, each reference in this Lease to a Section or Article shall mean the referenced Section or Article in this Lease. corporation is named as LANDLORD or TENANT in this Lease and executes the same as such, or govermental agency for compliance with and performance of all the terms, covenants and The neuter, feminine or masculine pronoun when used herein shall each include each of the other genders, and the use of the singular shall include the plural unless the context otherwise requires.
The parties hereto agree that all the provisions of this Lease are to be construed as covenants and agreements as though the words covenants and agreements were used in each separate provision hereof.
This Lease shall not be construed for or against LANDLORD or TENANT, but this Lease shall be interpreted in accordance with the general tenor of the language in an effort to reach the intended result.
(f) Nothing herein contained shall be deemed or construed by the parties hereto, or by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of Percentage Rent or Special Rent, nor any other provision contained herein, nor any acts of the parties herein, shall be deemed to create any relationship between the parties hereto other than the relationship of lessor and lessee nor cause LANDLORD to be responsible in any way for the acts, debts or obligations of TENANT.
If any provision of this Lease is determined by a court of competent jurisdiction to be contrary to applicable law and consequently unenforceable, all of the remaining enforceable ovisions of this Lease shall continue to be in full force and effect, and the Lease shall erpreted and applied as if the unenforceable provision were never a part of this Lea Section 23.02: LIABILITY OF LANDLORD
vent of a default by LANDLORD of any of its obligations under this Lease, LANDLORD nonetary liability to TENANT shall be limited to any right of offset allowed by this Lease, lav roperty containing the Premises and the Center, and to any proceeds of LANDLORD fron operation of the Center
Section 23.03: NOTICES
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addresses set forth at the commencement of this Lease and/or such other address or addresses a:
ither party may designate by notice to the other in accordance with this Section. Notices shall b deemed given: (1) when received or refused by the intended party (as evidenced on the envelope, package or return receipt if sent by certified or registered mail, or (2) if sent by nationally recognized courier service, the day of delivery by the service, whether or not such delivery was Section 23.04: SUCCESSORS
This Lease and the covenants and conditions herein contained shall inure to the benefit of and shall be binding on the parties and their respective successors and assigns.
Section 23.05: BROKERS
Except as otherwise provided herein, each party represents and warrants to the other that and warranty.
Section 23.06: UNAVOIDABLE DELAYS
In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder (except for the payment when due of any money) by reason of a Force Majeure Event (defined in Section 1.03(d)), then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.
Section 23.07: SEVERABILITY
It is the intention of the parties hereto that if any provision of this Lease is capable of two constructions, one of which would render the provision invalid and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. If any term or provision, or any portion thereof, of this Lease, or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to the persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law.
Section 23.08: TIME OF ESSENCE
Time is of the essence with respect to the performance of the respective obligations of LANDLORD and TENANT set forth in this Lease.
Section 23.09: APPLICABLE LAW
This Lease shall be governed, interpreted and enforced in accordance with the laws of the State of California. If either party institutes legal suit or action for enforcement of any obligatior ontained herein, it is agreed that venue for such suit or action may be in the county, parish o ther like political entity of the state in which the Premises are located Section 23.10: WAIVER
The waiver by LANDLORD or by TENANT of any term, covenant, agreement or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, agreement or condition herein contained. No covenant, term. agreement or condition of this Lease shall be deemed to have been waived by LANDLORD or TENANT, unless such waiver is in writing and signed by an authorized signatory of either LANDLORD or TENANT, as the case may be.
No waiver of any covenant, term, agreement or condition of this Lease or legal ight or remedy shall be implied by the failure of LANDLORD or TENANT to take any actio or declare a forfeiture or termination when those rights are given by the terms of this Lease, o S:IWPFILES12707D1443\Leasc-6 (wms 11-16-11).doc 23.2
Section 23.11: RECORDING
At the same time as LANDLORD and TENANT execute and deliver this Lease, LANDLORD and TENANT shall execute and deliver the Memorandum of Lease (no less thar two original counterparts of each substantially in the form of Exhibit H. (c) Either TENANT of LANDLORD may record a fully executed Memorandum of Lease in the appropriate public records, and whichever party submits the Memorandum of Lease for recording shall be responsible for payment of the recording fees; provided, however, tha should any transfer or recording taxes be payable upon recording of the Memorandum of Lease pon the expiration or earlier termination of this Lease, upon request of the oth arty LANDLORD and TENANT shall execute a memorandum for recording stating that th Lease has expired or been terminated, thereby releasing the Memorandum of Lease of record.
Section 23.12: HAZARDOUS MATERIAL
Definitions: As used herein, the following terms shall have the following meanings:
"Hazardous Materials": (A) Any "hazardous waste" as defined by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.) (RECRA), as amended from time to time, and regulations promulgated thereunder; (B) any "hazardous substance" as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.) ("CERCLA"); the Superfund Amendments and Re-authorization Act of 1986 ("SARA"), as amended from time to time, and regulations promulgated thereunder; (C) asbestos; (D) polychlorinated biphenyls; (E) Pollution Control Act (33 U.S.C. Section 1251 et seq.); Safe Drinking Water Act (42 U.S.C.
Section 3000(f) et seq.); or Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.). "Hazardous Materials Contamination": The contamination (whether presently existing or hereafter occurring) of the improvements, facilities, soil, groundwater, air or other elements of the Premises or the Center by Hazardous Materials. "Indemnification Costs" as used in this Section 23.12 shall mean any and all costs (including, but not limited to, fees and expenses of experts, attorneys' fees and litigation costs) of any investigation, inspection, assessment, legal action, litigation, arbitration, settlement, judgment and/or appeal related to, together with any amount (actual, special, punitive or any other form and any interest or surcharges thereon) which TENANT or LANDLORD is required to pay or incur pursuant to, any claim of any and every kind whatsoever which may now or in the future (whether before or after the termination or expiration of this Lease) be asserted in any way against TENANT or LANDLORD by any person, entity or governmental authority of any kind for, with respect to, or as a direct or indirect result of, either the presence on, under or about the Premises and/or the Center, or the escape, seepage, leakage, spillage, discharge, emission or S:IWPFILE512707D1443\Lease-6 (wms 11-16-11).doc 23.3
release from any part of the Premises and/or the Center, of any Hazardous Materials or any order or decree promulgated thereunder).
"Legal Requirements" as used in this Section 23.12 shall mean any and all present and future judicial decisions, statutes, rulings, rules, regulations, permits, directives, Warranties and Representations of LANDLORD: LANDLORD hereby warrants and represents to TENANT, to the best of LANDLORD's knowledge, as follows:
No Hazardous Materials contamination is presently existing on or about the site which will be the location of the Premises as of the Effective Date; (2)
Hazardous Materials Contamination;
LANDLORD has no knowledge that any investigation, administrative order, consent order, litigation or settlement with respect to Hazardous Materials or Hazardous Materials Contamination as of the Effective Date is proposed, threatened, anticipated or in existence with respect to the site which will be the location of the Premises. LANDLORD has no knowledge that the site which will be the location of the Premises as of the Effective Date is on, or has ever been on, any federal or state "superfund" or "superlien" lists.
Warranties and Representations of TENANT: TENANT hereby warrants and represents to LANDLORD, to the best of TENANT's knowledge, as follows:
(1) Environmental Matters; Hazardous Substances: The business of TENANT does not involve activity that would violate any past or present environmental law or regulation of any governmental body or agency, state or federal, having jurisdiction over the Premises. Specifically, but without limitation, no investigation, administrative order, consent order and agreement, litigation or settlement with respect to Hazardous Materials or Hazardous Materials Contamination is proposed, threatened, anticipated or in existence with respect to any of the operations of TENANT.
Affirmative Covenants: LANDLORD and TENANT hereby unconditionally covenant and agree as follows:
(1) Hazardous Materials: LANDLORD and TENANT agree to (A) give notice immediately upon acquiring knowledge of the presence of any Hazardous Materials on the Premises or of any Hazardous Materials Contamination with a full description thereof; and (B evidence of such compliance.
of the Premises, regardless of the proximate cause thereof, or if at any time during the period extending from and after the Delivery Date and throughout the Rent Term, any Hazardous Materials Contamination occurs on or about any portion of the Center as a proximate result of any act or omission of LANDLORD or of any person, party, or entity other than TENANT (or TENANT's employees, contractors or agents), LANDLORD shall fully defend, indemnify and hold harmless the Tenant Parties (defined below in this subsection) from any and all S:1WPFILES 2707D1443\Lease-6 (wms 11-16-Il).doc 23.4
Indemnification Costs (defined in Section 23.12(a)(3)), regardless of whether or not such costs are caused by or within the control of LANDLORD, and LANDLORD shall pay all costs for and shall be solely responsible for performance of any and all necessary or appropriate removal, control or re-mediation work related thereto (including, but not limited to, installation and operation of any monitoring wells, vapor barriers and devices). If the closure of all or any part of the Theatre during the initial ten (10) Rent Years results from any Hazardous Materials Contamination on or about the Center as a proximate result of any act or omission of LANDLORD or of any person, party, or entity other than TENANT (or TENANT's employees, contractors or agents), TENANT's obligation to pay any Rent pursuant to this Lease shall equitably abate for the duration of such closure. The representations, covenants, warranties and indemnification contained in this Section 23.12 shall survive the expiration or termination of this Lease. For the purposes of this Section 23.12, the term "Temant Parties" includes, in addition to ENANT, all present and subsequent owners, partners, joint venturers, managers, director. of TENANT and each and every affiliate o
TENANT, and all of the directors, officers, shareholders, managers, employees and agents of each and every affiliate of TENANT.
Indemnification of LANDLORD: If any Hazardous Materials Contamination shall occur as the proximate result of an act or omission of TENANT or of any and the directors, officers, shareholders, managers, employees and agents of each and every affiliate of Landlord.
Section 23.13: ENTIRE AGREEMENT
There are no oral agreements between the parties hereto affecting this Lease, and this Lease supersedes and cancels any and all previous negotiations, arrangements, letters of letters of understanding, case proposals, brochures, agreements, representation omises, warranties and understandings between the parties heret This Lease, including the exhibits hereto, sets forth the entire agreement betweer the parties with regard to the subject matter hereof, and includes all the covenants, promises, The Premises No alteration, amendan, change er adition to cas seal be inding upon LANDLORD or TENANT unless reduced to writing, signed by them and mutually delivered between them.
Section 23.14: EXCLUSIVE RIGHT
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Adjacent Mall Restriction. LANDLORD is the fee simple owner of that certain shopping center located across 4th Street from the Center known as Central City Mall (the "Adjacent Mall"). : Throughout the Rent Term, neither LANDLORD, nor its successors, issigns, affiliates, licensees, tenants, undertenants, nor any other person or entity having a righ • use or occupy all or any portion of the Adjacent Mall, shall be permitted to lease, licens‹ operate or otherwise permit all or any portion of the Adjacent Mall for the operation of a motion icture theatre or the display of a motion picture image on any media, regardless of thi technology involved, including without limitation multiple dimension, motion simulation an virtual reality processes, a part of which processes includes depicting images on a screen of some type, and LANDLORD shall take all action necessary to prevent the operation of any other motion picture theatre business and any exhibition of motion pictures within the Adjacent Mall customers to view televisions and other like media without charge.
City Restriction. LANDLORD has determined that, in the interest of protecting and enhancing the general welfare of the people of the City of San Bernardino, the creation of a theater district in the downtown area will further such interest. LANDLORD has determined that the creation of a special theater district will alleviate blight and urban decay in the downtown area, and will assist LANDLORD in revitalizing the downtown area by attracting customers to the theaters and, concomitantly, to the restaurants and other retail businesses contemplated for such a theater district. Therefore, pursuant to the Development Agreement and the ordinances referenced in the Development Agreement, the City has covenanted to TENANT that from the Effective Date until the expiration or termination of the Rent Term, the City shall neither entitle nor approve any other cinema project or cinema theater within the municipal boundaries of the City that has a seating capacity in any single motion picture theatre (regardless of the number of auditoriums) equal to more than two hundred (200) seats nor having any auditorium for the presentation of recorded movie productions of a square footage greater than three thousand (3,000) square feet, without the prior written consent of TENANT to be granted or withheld in TENANT's sole discretion (the "City Restriction"). Any circumstance which violates the City Restriction (as above-described) shall be deemed a breach by LANDLORD under this Lease, entitling TENANT to all rights and remedies for breach in addition to all other rights and remedies provided by this Lease (including without limitation that provided in Section
23.14(d)).
(d) Exclusive Right Inconsistency. If any event, circumstance or condition occurs which is not consistent with either the Center Exclusive Right, the Adjacent Mall Restriction or the City Restriction (any such being referred to as an "Exelusive Right Inconsistency"), in addition to all other rights and remedies the TENANT may have, then: (1) for the period commencing on the first day of the calendar month during with the Exclusive Right Inconsistency starts and extending to the last day of the calendar month during which the Exclusive Right Inconsistency ends, TENANT shall be relieved of any obligation to pay Base Rent and Percentage Rent, and instead TENANT shall be obligated to pay to LANDLORD LANDLORD.
Section 23.15: ATTORNEYS' FEES
In the event of litigation between the parties in which it is alleged that one or the othe has defaulted under the provisions of this Lease, the ultimate non-prevailing party shall pay the reasonable attorneys' fees and court costs of the ultimate prevailing party.
Section 23.16: LANDLORD MEANS OWNER
s used herein, "Superior Title" means title which is either fee title or which is super the title of TENANT in the Premises. The term "LANDLORD" as used in this Lease, so as covenants or obligations on the part of LANDLORD are concerned, shall mean the party identified as LANDLORD on page 1.1 as of the date of this Lease and thereafter shall mean anc S:\WPFILES\2707D1443 Lease-6(wms 11-16-11).doc 23.6
include the owner or owners at the time in question of Superior Title to the Land, and in the event of any transfer or transfers of such Superior Title to the Land, the transferor shall be automatically freed and relieved, from and after the date of such transfer or conveyance, of all hability as respects the performance of any covenants or obligations on the part of LANDLORD that the transferee receives the necessary legal rights to fulfill all of the obligations of the LANDLORD described in this Lease with respect to all of the Common Areas. The owner of Lease. The owner of Superior Title to any portion of the Center shall be bound by the exclusiveness granted to TENANT in Section 23.14 hereof.
Section 23.17: COVENANTS, CONDITIONS AND RESTRICTIONS
The Center may be subject to one or more title declarations, covenants or restrictions. charge or fee.
Section 23.18: ACCEPTANCE OF LESS THAN FULL PAYMENT
Section 23.19: MUTUAL EXECUTION
Section 23.20: COUNTERPARTS
This Lease may be executed in any number of counterparts, each of which shall b leemed an original, but all of which shall constitute one and the same instrumen S:WPFILES\2707D1443\Lease-6 (wms 11-16-11) doc 23.7
IN WITNESS WHEREOF, LANDLORD and TENANT have executed this Lease as of the date first written above.
LANDLORD:
San Bernardino Economic Development Corporation
FREE MARLENE CABELLO-MERER a nonprofit public benefit corporation Commission # 1889338
Notary Public • California
San Bernardino County Rime Em
My Comm. Expires May 14. 2014
Its: Chet Exeestie Offers
State of la/s/arnia
) ss:
County of sabinuln
1/17 2011 before me, Steeladen bellues personally appeared Fimilt Mariwh, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of CalfaM that the foregoing paragraph is true and correct.
Witness my hand and official seal.
My commission expires: 5/1/2014 Shen male labelle Men
Notary Public
TENANT:
Regal Cinemas, Inc.
a Tennessee corporation
By:_
Name: Robert 6, Crane
Its:_ Senior Vice President
State of "ENNESSEE
County of KNOX
Before me, a Notary Public of the County and State aforesaid, personally appeared ROBERT G. CRANE → with whom I am personally acquainted, or proved to me on the basis of satisfactory evidence, and who, upon oath, acknowledged himself/herself to be the UKE PRESIDENT _ of Regal Cinemas, Inc., a Tennessee corporation, the vithin named bargainer, that he/she as such officer executed the foregoing instrument for the purposes therein contained, by signing the name of the corporation by himself/herself as suct officer, and that he/she was duly authorized thereunto by the board of directors of suck corporation.
Witness my hand and official seal at office in Knox County, Tennessee, this 4TH day of January 2012
Li. Tangley
My commission expires: 8-12-12 BONNIE
TENNESSEE NOTARY
S:IWPFILES12707D1443 Lease-6 (wms 11-16-11).doc PUBLIC
NOX COUNTY
Exhibit A
Legal Description of the Land
(Lease Section 1.03)
(1 page)
S:1WPFILES|2707D/443\Lcase-6 (wms ||-I6-It).doc
EXHIBIT A
Parcels 1 through 7, inclusive, of Parcel Map No. 15038, in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 186 of Parcel Maps, Pages 14 and 15, records of said County.
Exhibit B
Site Plan
(Lease Section 1.03)
(3 pages)
S:1WPFILES12707D14431Lcase-6 (wms 11-16-11).doc
THEATER SQUARE
FIFTH STREET
EXISTING
NOT I NOT
PARKING
A L A
PART LOT STAGINE PART
PREMISES
STAGING AREA REGAL CINEMAS "E" STAEET
Cal Tran
EXISTING STADIUM 14 Garage
"F" STREET PARKING
LOT
DA RELAT RETAIL TENANTS
ENANT
Theatre Spac Farmer
Thearte
Dace
EXISTING
CALIFORNIA FUTURE FUTURE
THEATER RETAIL
NOT A RETAIL
PART
--/
FOURTH STREET
Mall Garage
CINEMA SIGNAGE
Ludwig Enginering
L A CORPORATION
SCALE: 1" = 100'
1 - See following Pages for additional detail.
- Parking Retention Areas consist of each
Ensting Parking Lot, Mall barage and • Locations of Mall Congrat them ange in pages.,
SAN BERNARDINO, CA
THEATER SQUARE
OL CHOCKE
SO 3P022
SEPTEMBER 21.2000
ARCHITECTS
5-N EERNERONO
THEATER SQUARE
SHE CONTEN
- Mall Garage
P
Caltrans barage
2921.2090
ARCHITECTS
Exhibit C
Layout Plan of the Premises
(Lease Section 1.03)
(2 pages)
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DOOD
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ты"
DDA
bDArdutects
Acorporto
A
SQUARE
REGAL GINEMAS 14 CONCEPT SAN BERNARDINO, CALIFORNIA
THEATRE
Proposed First Level
demising wall plan. Proposed demising wall separating
PROJECT DATA
¡Theater Square Regal Theatre from adjacent Retail Shop BE ARCHITECTING 200 and Restaurant Lease space 30% 07 2A
Cinemas Stadium 14
shown shaded red. PROPOSED FIRST FLOOR A.1.1
BBArchitects, Inc 3/22/11 PLAN - CONCEPT A
KAS VITTO
4°44 C
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. E
A
SQUARE
REGAL GINEMAS 14 CONCEPT SAN BERNARDINO, CALIFORNIA
THEATRE
Proposed Mezzanine Level
Proposed demising wall separating
demising wall plan. PROJECT DATA MEZZANINE
FLOOR
Theatre from adjacent Retail Shop PLAN
Theater Square Regal 5306 ELLENO GO ACCESSELE SPACI
Cinemas Stadium 14 and Restaurant Lease space
PROPOSED MEZZANINE A.1.2
shown shaded red.
BBArchitects, Inc 3/22/11 PLAN - CONCEPT A
0-210
Exhibit D
Designation of Landlord's Work
and Tenant's Work
(Lease Section 3.01)
(14 pages total,
consisting of 6 pages of text
and 8 pages of drawings)
S: 1WPFILES12707D1443\Lease-6 (wms 11-16-11).doc
EXHIBIT D
SCOPE OF WORK
THEATRE SQUARE REGAL CINEMAS STADIUM 14 REMODEL
The following designates the responsibility and scope of work to either Regal Cinemas, Inc. (REG) or Redevelopment Agency of the City of San Bernardino (LL).
1.0 EXISTING BUILDING ARCHITECTURAL EXTERIOR REMODEL AND RENOVATION ITEMS:
1.1 LANDLORD - REQUIRED EXTERIOR BUILDING SCOPE OF WORK ITEMS:
1. LL Repair exterior entry plaza grade slopes around existing Box Office to be demolished.
2. LL Remove existing Box Office and Box Office radius metal canopy and support columns.
3. LL Relocate existing bike racks (or provide new bike racks) to a new location.
4. LL Renovate existing and/or provide new landscape planting and irrigation. Power for irrigation control and site lighting to be provided by new electrical service point to be provided by the LL.
5. LL Repair and/or replace and maintain existing HVAC system as needed.
1.2 REGAL - REQUIRED EXTERIOR BUILDING SCOPE OF WORK ITEMS
1. REG Remove existing starburst poles on Lobby roof over entry soffit area.
2. REG Remove starburst poles on top of tower. Remove existing star signage at existing tower to remain.
REG Remove existing marquee on the building corner right of the existing Box Office and repair exterior wall as required on back of REG Existing poster cases outside on existing Auditorium 19 south wall to be removed and relocated adjacent to the Lobby entrance.
REG Existing PVC roof drain overflow spouts to be remodeled or through the wall next to each of the side exits from Aud. 1 and 20 need to be relocated to provide proper exit door jamb clearance at plaza.
6. REG Remove and/or restore neon lighting at exterior building soffits.
7. REG Add new box office in existing Lobby plaza area under existing lobby stair landing. Extend new Box Office beyond exterior building line of stair landing to allow for roof mounted HVAC system on new Box Office addition roof. Provide 11' 0" new ceiling height at ticket sales room per REG standards for showtime reader board. Remove portion of existing storefront system to accommodate new Box Office.
8. REG Repair, clean, and paint existing plaster sofit face and underside over entry. Add new signage.
9. REG Provide new exterior architectural cladding attached to the existing Tower structure to remain. Clean and paint existing tower plaster 1 detail to remain. Add new Regal logo or letter signage on multiple sides of Tower.
REG On the existing building E Street side of the building provide new exterior building architectural cladding and REG signage. E Street Add REG signage on easterly E Street and on west side of building facing onsite parking area outside Auditorium 2.
11. REG Add 16 exterior poster cases per REG standard, if possible. Note exterior wall space is limited.
12. REG Add exit lighting as required at perimeter of cinema exits as required to meet code to supplement existing lighting to remain.
13. REG Review condition of existing down lights in soffit and add lighting as required to meet REG standards.
14. REG Repair, prepare and paint all exterior hollow metal doors with appropriate color scheme.
15. REG Provide new neon or LED and other architectural lighting at Plaza and Lobby exterior elevations to highlight new architectural metal siding features.
2.0 EXISTING BUILDING ARCHITECTURAL INTERIOR REMODEL AND RENOVATION ITEMS.
2.1 LANDLORD - INTERIOR BUILDING SCOPE OF WORK ITEMS
REGAL IS TO PROVIDE THE FOLLOWING DEMISING WORK AT
LANDLORD'S SOLE COST:
REG/LL Remodel existing theatre space to separate the existing REG theatre lease space to remain from the LL lease space shop/restaurant for a new exit corridor from auditoriums and theatre lobby corridors adjacent to Aud. 1, 2, 13 and
14. 2. REG/LL Provide new exit corridor lighting and air conditioning or exhaust fan systems as required at new exits.
REG/LL Provide fire rated wall as required to separate theatre A-1 occupancy from retail/shops/restaurant A-3 or M
occupancies.
4. REG/LL The MEP system for the existing 20plex is to be remodeled to eliminate the extension of the existing theatre lease space MEP system to remain into the new LL shop/restaurant
lease space portion of the existing building area to be remodeled for the LL's use.
5. REG/LL Architectural, Structural and MEP design work to be shown on Regal consultant design drawings indicating that the construction and the costs associated with the construction of this portion of work provided by Regal contractor is a separate itemized contract sum the Landlord is to reimburse to Regal for this scope of work.
2.2 REGAL - REQUIRED INTERIOR BUILDING SCOPE OF WORK ITEMS:
REG Repair adjacent ceiling, wall, and floor finishes as required on theatre side of new wall separating theatre lease space from LL. restaurant/shop space.
2. REG Repair all existing plastic laminate Auditorium entry doors with new "Belbien" surface laminated onto existing doors. Existing 2 door hardware to remain with exception of new door hardware added per Regal standards i.e., keypads, kick plates, etc. or new door hardware where existing door hardware has been damaged or is missing. No magnetic door holders are to be provided. Provide alternate cost to replace existing doors with new white maple sliced doors per Regal standards for REG consideration.
REG i Remove existing Guest Service area in existing lobby and provide new Guest Service area per Regal standards adjacent to new Box Office.
REG Existing main double pass thru concession stand and workroom to remain. Resurface existing counter cabinet's plastic laminate with new plastic laminate. Existing solid plastic countertop to remain and is to be rehabilitated.
REG Remove existing and install new Regal menu boards and structural support/backing on existing soffit to remain.
6. REG Remove existing interior signs, way finding signs, now showing signs and mini marquee signs and install new interior signs, way finding signs, now showing signs and mini marquees per Regal standards.
REG Prepare existing subfloor and provide new ceramic tile and carpet flooring in lobby.
REG Remove two existing satellite concession stands.
Add two new Men restrooms to replace existing Men restrooms in Lobby 2 & 6 adjacent to Auditoriums 2 and 13. Salvage existing Men restroom fixtures located in LL shop/restaurant lease space and accessories and partitions for reuse at new or existing Men restrooms.
10. REG Family Toilet facility to be provided and incorporated into new Men restrooms on each side of building.
11. REG Repair, clean, and buff existing toilet partitions, urinal toilets, and lavatory vanity countertop as required.
12. REG Refurbish or replace damaged existing restroom plumbing fixtures, accessories and finishes as required.
13. REG Repair, clean, and buff existing ceramic tile on walls and floors as needed.
14. REG Repair existing lavatory counter tops to provide disabled access.
15. REG Provide new electric hand dryers per Regal Standards in existing and new restrooms.
16. REG Prepare and repaint or provide new vinyl wall coverage at existing painted and vinyl wall covered lobby walls, stairs and soffits,
17. REG Prepare and install new wall vinyl and/or repaint existing walls at all patron areas to approximately 8'O" AFF typical at all lobby corridor patron areas.
18. REG Prepare and install new wall vinyl and/or repaint existing walls at employee rooms and spaces.
19. REG Tile existing lobby column bases and refinish existing columns with wall vinyl or other durable epoxy paint materials.
20. REG At existing Lobby ceiling remove existing neon lighting, existing ceiling tile and repair, prep and paint existing ceiling grid to remain black. Install new dyed black ceiling tile. Remove and replace or re-lamp and paint black exposed trims at existing lobby light fixtures.
21. REG Refurbish/prep and paint existing architectural finishes at mezzanine party room, restrooms, office, janitor, locker, 3 mechanical, and conference rooms and provide new finishes, paint and carpet as required.
22. REG Refurbish existing lobby stair, paint and restore other finishes as required including new alternating pattern carpet stair treads and risers.
23. REG Add new ceramic floor tile at Auditorium entry door areas and trash enclosure areas.
24. REG Add new ceramic tile wall base and border tile throughout existing auditorium Lobby corridors.
25. REG Existing interior poster case locations to remain. Clean and refurbish.
26. REG Remodel existing Entrances to Auditorium 6, 7, 8 and 9 off Lobby.
27. REG Clean ceilings, clean walls and clean and polish sealed concrete floors at existing projector room.
23 REGAL - AUDITORIUM INTERIOR BUILDING SCOPE OF WORK ITEMS:
1. REG Repair existing auditorium interiors acoustical wall panels and wall carpet to remain. Repair, prep and paint existing auditorium seating concrete floors as required. Provide an alternate cost to install classic black viny! tile flooring at all auditoriums seating areas for REG consideration.
2. REG Install new floor carpet and aisle lighting.
3. REG Existing screens and speakers are to remain - new to be provided as needed per REG direction.
4. REG Existing sconce lighting are to remain - new to be provided as needed per REG direction.
5. REG • Provide new wall carpet at exposed painted entry foyer walls, and seats. Repair existing ceiling as required. Remodel cross aisle seating layout and concrete floor.
6. REG Prep and paint existing auditorium handrails to remain. Provide alternate construction cost estimate to relocate railings in Auditoriums from side of aisle to center of aisles where seating occurs on both sides of aisle stairs. Railing to be mounted 34" above nosing- as low as code allows.
REG Remodel exit doors at Auditoriums 5 and 10 next to screens and provide new exit doors at crossaisle directly to exterior.
REG Repair and rehabilitate existing trash enclosures to remain at auditorium entry foyers.
REG Remodel and repair existing projector room port windows as needed per REG direction.
3.0 EXISTING DISABLED ACCESS SUMMARY:
3.1 EXISTING SITE CONDITIONS NEEDED TO BE BROUGHT INTO
COMPLIANCE:
1. LL Site Accessible Route of Travel- exterior paving. Repair the existing and proposed new access path of travel surface finish grades to meet code to Lobby Entrance and Box Office.
2. LL Rehabilitate parking.
3. LL Rehabilitate/provide passenger Drop-Off and Loading Zone.
4. LL Provide detectable warnings on curb ramps.
-
5. LL Remodel ramp and walkway exits from Auditoriums 10, 11, 12, and 13 to be minimum 48" wide.
6. LL Remodel ramp and walkway exit hand railing clearances from Auditoriums 10, 11, 12, and 13 to be minimum 1-1/2" from wall surfaces and smooth existing split faced wall surfaces adjacent to existing handrails.
7. IL Provide disabled access site directional signage.
3.2 LOBBY AND EMPLOYEE AREA REQUIREMENTS NEEDED TO BRING EXISTING CONDITIONS INTO DISABLED ACCESS COMPLIANCE:
1. REG Lobby doors - service/repair as required.
2. REG Provide one automatic door at Lobby entrance.
3. REG Remodel Lobby entrance to provide one single leaf entry door.
4. REG Concession area - Add ADA signage and maintain counter heights per code.
5. REG Remodel existing Concession Support room doors to provide code required clearances.
6. REG Remodel existing door at offices to right of Concession to provide code required clearances.
7. REG Elevator provided operational. Service and rehabilitate as required - add floor level signage.
REG All restrooms required repair accessible toilet room partitions, equipment and accessories. Janitor room inside restroom.
9. REG Mezzanine men restroom - Door to HC stall needs to swing in, or partitions remodeled as required to provide door clearances.
10. REG Existing Party Room (Mezzanine) to remain. Prep and paint existing walls to remain.
11. REG Mezzanine Projector Room (right side) Storage, Mechanical Room, Office - clean and buff walls, floors and ceilings.
12. REG Mezzanine Projector Room Entry from Mezzanine Lobby (right side) - door clearance remodel required.
13. REG Mezzanine Projector Room (left side) Janitor, Office, Office - clean and buff walls, floors, and ceilings.
14. REG Mezzanine Projector Room Entry from Mezzanine Lobby (left side) - remodel existing door to provide code required clearance.
15. REG Existing drinking fountain in lobby to be removed. Accessible drinking fountains to be provided next to proposed new Men restrooms - 10 drinking fountains to be provided as required per code.
3.3 AUDITORIUM REOUIREMENTS NEEDED TO BRING EXISTING
CONDITIONS INTO COMPLIANCE:
1. REG Auditoriums 1, 5, 10, 14- 107 Seats (exist 126 Seats) - Repair handrail extensions at entry and exit ramps, provide 4 WC Seats and 4 Companion seats, existing Second Exit access and ramp at screen access to be remodeled to provide proper landing and door clearances. Remove existing companion seats in existing cross aisles, level sloping floor and add railings. Repair aisle stairs as required to provide uniform tread length and riser heights.
2. REG New Auditoriums 2 and 13 - 196 Seats (exist 221 seats) - Repair handrail extensions at entry and exit ramps, provide 4 WC Seats and 4 Companion seats, Second exit-existing door clearance needs to be confirmed to be compliant at site. Remove existing raised 6 5 inch platform, ramps and railings in crossaisle, repair crossaisle to be flat and add railings. Repair aisle stairs as required to provide uniform tread length and riser heights.
REG New Auditoriums 3 and 12 - 221 Seats (exist 245 Seats) - Repair handrail extensions at entry and exit ramps, provide 5 WC Seats and 5 Companion seats, Second exit-existing door clearance needs to be confirmed to be compliant at site. Remove existing raised 6 inch platform, ramps and railings in crossaisle, repair crossaisle to be flat and add railings. Repair aisle stairs as required to provide uniform tread length and riser heights.
REG New Auditoriums 4 and 11 160 Seats (exist 204 Seats) - Repair handrail extensions at entry and exit ramps; provide 5 WC and 5 Companion seats, Second exit-existing door clearance needs to be confirmed to be compliant at site. Remove existing raised 6 inch platform, ramps and railings in crossaisle, repair crossaisle to be flat and add railings. Repair aisle stairs as required to provide uniform tread length and riser heights.
REG New Auditoriums 6 and 9 - 362 Seats (exist 369 Seats) - Repair handrail extensions at entry and exit ramps, provide 6 WC Seats and 6 Companion seats, Second exit-existing door clearance needs to be confirmed to be compliant at site. Second Exit to Corridor- door clearance not provided at screen, third exit to corridor - door clearance and corridor width appear not provided. Remove existing raised 6 inch platform, ramps and railings in crossaisle, repair crossaisle to be flat and add railings. Repair aisle stairs as required to provide uniform tread length and riser heights.
6. REG New Auditoriums 7 and 8 - 469 Seats (exist 468 Seats) - Remove one Entry Door to provide clearance for entry ramp landing, Repair handrail extensions at entry and exit ramps, provide 6 WC Seats and 6 Companion seats, Second Exit to Exterior-door clearance not provided at screen. Exit at Mezzanine door clearance remodel required. Remove existing raised 6 inch platform, ramps and railings in crossaisle, repair crossaisle to be flat and add railings. Repair aisle stairs as required to provide uniform tread length and riser heights.
6 REPARATE PERMIT BUILDING TO BE PORTION OF EXISTING
PRONTOS PER TECTION 3062 25-
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Exhibit E
Completion Certificate
(Lease Section 1.05)
(2 pages)
S:IPFILES12707D1443\Lease-6 (wms 11-16-11).doc
COMPLETION CERTIFICATE
Dated:
PARTI
LEASE (the "Lease") dated as of _ 2011
Send maria, fac Ten Delopment Corporation Landlord"')
Rent Commencement Date:
10-Rent Year Initial Rent Term Expiration Date:
Optional Extension Terms: Four for five Rent Years each, followed by one for four Rent Years.
Actual GLA of the Premises:
PART II
Base Rent:
From the Rent Commencement Date through
$850,000.00 annually, $70,833.33 monthly
If Tenant exercises its options for Extension Periods:
From _through
$920,250.00 annually, $76,687.50 monthly
From _through_
$990,500.00 annually, $82,541.67 monthly
From _through
$1,060,750.00 annually, $88,395.83 monthly
From
S1,31,00 araly, 594250.0 monthly
From through
$1,201,250.00 annually, $100,104.17 monthly.
PART III
Tenant and Landlord, intending legally to be bound, hereby certify and agree as follows:
A. The dates and other information set forth in this Completion Certificate are true and correct; and,
B. The Rent Term commences on the Rent Commencement Date set forth in PART I hereof and ends absolutely and without notice at 11:59 P.M. (local time for the location of the Theatre) on the Expiration Date, unless sooner terminated pursuant to provisions of the Lease or unless extended by exercise of options as provided in the Lease: and.
All terms defined in the Lease are used herein as defined therein.
S:1WPFILES12707D14431Lease-6 (wms 11-16-11).doc
IN WITNESS WHEREOF, Landlord and Tenant have executed this Completion Certificate as of the date first written above.
LANDLORD:
San prot pi enem corporalopment Corporation
By:_
Name:
Its:
State of
)ss:
County of
On _ 2011 before me, - personally appeared
→ who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. the forei neper te and or Ferry under the laws of the state of. that Witness my hand and official seal.
My commission expires:
Notary Public
TENANT:
Regal Cinemas, Ine.
a Tennessee corporation
By:
Name:_
Its:
State of TENNESSEE
County of KNOX
Before me, a Notary Public of the County and State aforesaid, personally appeared officer, and that he/she was duly authorized thereunto by the board of directors of such corporation.
Witness my hand and official seal at office in Knox County, Tennessec, this My commission expires: Notary Public
S:1WPFILES12707D/443 Lease-6(wms 11-16-11).doc
Exhibit F
Non-Disturbance Agreement
(Section 18.01)
(5 pages)
S:IWPFILES12707D1443\Lcasc-6 (wms 11-16-1I).doc
2 Non-disturbance, Attornment
and Subordination Agreement
This Non-disturbance, Attornment and Subordination Agreement (the "Agreement") is made and entered into as of the
with a by andresetween
corporation, with an address of 7132 Regal Lane, Knoxville, Tennessee 37918 (the "Tenant" Preliminary Statement:
Pursuant to that certain Lease (the "Lease") dated
B. A legal description of the portion of the Center owned by Landlord is set forth on Exhibit A which is attached hereto and incorporated herein (the "Center Land").
Landlord owns fee simple absolute title to the Center Land pursuant to that certain deed recorded as Instrument No. in the official records of San Bernardino County, California.
Pursuant to that certain Memorandum of Lease (the "Memorandum"') recorded a Instrument No. in the official records of San Bernardino County, California, Landlord and Tenant memorialized the Lease of the Premises for the purpose of placing the matter of record.
Mortgagee is the holder and beneficiary of that certain mortgage, deed of trust or similar encumbrance between Landlord and Mortgagee (the "Mortgage"), recorded as Instrument _ in the official records of in the official records of San Bernardino County, California, which encumbers the Center Land.
Mortgagee, Landlord and Tenant desire to evidence their understanding with respect to the Mortgage and the Lease as hereinafter provided.
Now, therefore, in consideration of the mutual agreements hereinafter set forth, the parties hereby agree as follows:
1. Meaning of Mortgagee.
As used hereinafter, the term Mortgagee shall include the above identified Mortgagee and any assignees or successors of such Mortgagee with respect to the Mortgage.
2. Non-Disturbance.
So long as Tenant is not in default (beyond any period given Tenant under the Lease to Neither Tenant's right of possession of the Premises nor any other rights or privileges of Tenant under the Lease (including the Lease as extended or renewed in accordance with any option afforded Tenant in the Lease) shall be terminated, diminished o listurbed by Mortgagee for any reason whatsoever, including, without limitation, by virtue of any actions taken by Mortgagee in the exercise of any of its rights or remedies under the Mortgage or the indebtedness secured thereby;
S:1WPFILES12707D\443\Lease-6 (wms |I-I6-II).doc
(b) The Lease shall not be terminated or affected by the exercise of any right Lease and the rights and privileges of Tenant thereunder; and In the event of foreclosure of the Mortgage, deed in lieu of foreclosure or other transfer of Landlord's right, title and interest in the property containing the Premises, such purchaser shall recognize and accept the Lease and Tenant's leasehold right, title and interest in the Premises.
3. Attornment
reason of foreclosure, conveyance in lieu of foreclosure or other proceeding, or by any oth anner, and Mortgagee succeeds to the interest of Landlord under the Lease, Tenant shall bound to Mortgagee under all of the terms, covenants and conditions of the Lease for the balance of the term thereof remaining and any extension thereof which may be effected in accordance with any option therefore afforded to Tenant in the Lease, with the same force and effect as if Landlord, said attorment to be effective and self-operative without the execution of any further instruments on the part of either party hereto immediately upon Mortgagee succeeding to the interest of Landlord under the Lease. The respective rights and obligations of Tenant and Mortgagee upon such attornment, to the extent of the then remaining balance of the term of the Lease and any extensions and renewals thereof, shall be and are the same as set forth in the Lease, it being the intention of the parties hereto for this purpose to incorporate the Lease into this Agreement by reference with the same force and effect as if set forth at length herein.
If Mortgagee shall succeed to the interest of Landlord under the Lease, Mortgagee shall be bound to Tenant under all the terms, covenants and conditions of the Lease, and Tenant shall, from and after Mortgagee's succession to the interest of Landlord under the Lease, have the same remedies against Mortgagee for the breach of any agreement contained in the Lease that Tenant would have had under the Lease against Landlord if Mortgagee had not succeeded to the interest of Landlord; provided, however, that Mortgagee shall not (a) have any monetary liability by offset against rent or otherwise for any act, omission, misrepresentation or default of any prior Landlord arising out of facts and circumstances existing before Mortgagee's succession to the interest of Landlord under the Lease, if such act, omission, misrepresentation or default of the prior Landlord then does not continue in effect, subject to the provision that Mortgagee shall not be relieved in any way from any performance obligation of the Landlord under the Lease for the period from and after Mortgagee's succession to the interest of Landlord; or (b) be bound by any rent which Tenant paid to the prior Landlord for more than one (1) month in advance, unless Mortgagee has received such rent from the prior Landlord; or (c) liable for the return of any security deposit to the extent it has not been received by Mortgagee from Landlord. all subject to the provision that Tenant shall have the right (but not the obligation) to cure any default by Landlord which Landlord or Mortgagee does not cure within the applicable cure period and recover its reasonable costs therefor together with interest at the Default Rate (defined in the Lease) by off set against Rent as it comes due for payment.
Subordination of Lease.
the lien of the Coverang, stipulate and ane the he als in is ed, ubordine epinity s substitutions, replacements and/or consolidations of the Mortgage).
5. Authorization by Landlord.
Landlord authorizes and directs Tenant to honor any written demand or notice from Mortgagee instructing Tenant to pay rent or other sums to Mortgagee rather than Landlord (a "Payment Demand"), regardless of any other or contrary notice or instruction which Tenant may receive from Landlord before or after Tenant's receipt of such Payment Demand. Tenant mas rely upon any notice, instruction, payment demand, certificate, consent or other document from S:IWPFILES12707D1443\Lcasc-6 (wms 11-16-11).doc
Mortgagee believed by Tenant to be genuine and signed by Mortgagee and shall have no duty to proper payment by Tenant of such sum pursuant to the Lease
6. Miscellaneous.
Each and all of the provisions of this Agreement shall be binding upon and Fixture Financing Statement granted by Tenant in favor of such lender in the event such lender succeeds to the interest of Tenant under the Lease in accordance with the terms of the Lease and said Leasehold Mortgage.
(d) Any consent, waiver, notice, demand, request or other instrument required or permitted to be given under this Agreement shall be in writing and be sent by certified or delivery Vice, sies made Expres, pt requestar popage paid, aid, es by overmight express If to Tenant: Regal Cinemas, Inc.
7132 Regal Lane
Knoxville, Tennessee 37918
Attention: Real Estate Department
With a copy to: Herbert S. Sanger, Jr.
Wagner, Myers & Sanger, P.C.
1801 First Tennessee Plaza
Knoxville, Tennessee 37929
If to Mortgagee:
Attn:
With a copy to:
Attn:
If to Landlord:
Attn:
With a copy to:
Attn
S:1WPFILES 2707D1443 Lease-6 (wms 11-16-11).doc
Any such consent, wavier, notice, demand, request or other instrument shall be deemed given upon receipt or upon the refusal of the addressee to receive the same as indicated on the return receipt. Any party may change its address for notices in the manner set forth above. inserted only a a mater conveni and and do not dine, limit, cong in or describere scare or intent of the provisions of this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the state in which the Premises is located. no event shall Tenant be bound by this document until a fully executed, as-recorded, counterpart original is returned to Tenant's counsel at the address provided in Paragraph 6.4.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
Mortgagee:
By:
Name:
Title:
Landlord: San Bernardino Economic Development Corporation • a nonprofit public benefit corporation
By:
Name:
Title:
Tenant: Regal Cinemas, Inc.
a Tennessee corporation
By:
Name:
Title:
S::WPFILES2707D\4431Lcasc-6(wms 11-16-11) doc
State of
) SS:
County of
_ 2011 before me, , personally appearec
who proved to me on the basis of satisfactory evidence to be the persor whose name is subscribed to the within instrument and acknowledged to me that he/she executed he same in his/her authorized capacity, and that by his/her signature on the instrument th erson, or the entity upon behalf of which the person acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State o that the foregoing paragraph is true and correct
Witness my hand and official seal.
My commission expires:
Notary Public
State of
) sS:
County of
I certify under PENALTY OF PERJURY under the laws of the State of that the foregoing paragraph is true and correct.
Witness my hand and official seal.
My commission expires:
Notary Public
State of TENNESSEE
County of KNOX
Before me, a Notary Public of the County and State aforesaid, personally appeared Witness my hand and official seal at office in Knox County, Tennessee, this day of , 2011.
My commission expires:
Notary Public
S:1WPFILES12707D1443 Lease-(wms 11-16-11).doc
Exhibit G
Landlord Estoppel Certificate
(Lease Section 19.01)
(4 pages)
S:IWPFILES12707D14431Lease-6 (wms 11-l6-11).doc
Landlord Estoppel Certificate
public benefit corporation the "Landlord"), for the benefit of Regal Cinemas, Inc., a Tennessee Preliminary Statement:
Pursuant to that certain Lease (the "Lease") dated
A legal description of the portion of the Center owned by Landlord is set forth on Exhibit A which is attached hereto and incorporated herein (the "Center Land"). deed recorded as Instrumen No. Landlord owns fee simple absolute tile to the Center Land pursuant to that certain in the official records of San Bernardino
County, California.
D. Pursuant to that certain Memorandum of Lease (the "Memorandum") recorded as in the official records of San Bernardino County,
California, Landlord and Tenant memorialized the Lease of the Premises for the purpose of placing the matter of record
Tenant intends to enter into a leasehold mortgage (or the applicable equivalent), assignment of leases and rents, security agreement and fixture filing (as amended, restated, "Collateral").
o repay that certain loan made by Lender to Tenant pursuant to the Loan Agreement (th "Loan"), and Lender also may require from Tenant the grant of a pledge of Tenant's stoc Now, Therefore, Landlord, knowing that Lender will rely on this Certificate in accepting the Mortgage and in making the Loan, and for good and valuable consideration, hereby states, certifies, confirms, acknowledges, represents, warrants and agrees as follows:
1. Landlord owns fee simple title to the parcel of land which contains the Premises and has the right to lease the Premises to Tenant in the manner provided in the Lease. Pursuant to the Lease, Landlord has leased the Premises to Tenant. As of the date of this Certificate, Tenant constitutes the sole "Tenant" under the Lease.
2. A copy of the Lease and all amendments and supplements thereto are attached hereto and made a part hereof as Exhibit B, which exhibit constitutes a true and correct copy of the Lease and all amendments and supplements thereto and also constitutes the entire agreement of Landlord and Tenant with respect to the subject matter thereof The initial Rent Term of the Lease commenced on the Rent Commencement Date (as defined in the Lease) which was _ The first Rent Year (as defined in S:IWPFILES12707D/443\Leasc-6(wms 11-16-11).doc
the Lease) began on the Rent Commencement Date. The term of the Lease shall end on the last day of the Tenth (10th) Rent Year, unless extended. Tenant has four (4) options to extend the term for periods of five (5) years each, followed by one (1) option to extend for four (4) years.
4. The Lease has not been supplemented, modified or amended (orally or in writing) except pursuant to the documents identified above and attached hereto as part of Exhibit B. The Lease is valid and in full force and effect, in accordance with its terms, on the date hereof. The Lease has not been surrendered, canceled, terminated or abandoned, whether in writing or pursuant to a purported oral surrender, cancellation, termination or abandonment. Landlord has not commenced any pending action or sent any presently effective notice to Tenant or received any presently effective notice from Tenant) for the purpose of cancelling or terminating the Lease. Landlord presently has no basis for cancellation or termination of the Lease. All rent due as of the date hereof under the Lease has been paid through the date hereof. To the best of Landlord's knowledge, Tenant is not currently in default under the Lease, and, to the best of Landlord's knowledge, no condition exists that, with the giving of notice or the passage of time, or both, would give rise to a default under the Lease.
Landlord agrees that Tenant may grant the Leasehold Mortgage to Lender and/or pledge its capital stock in favor of Lender, without being in default under the Lease.
No action or agreement hereafter taken or entered into by Tenant to cancel surrender, amend or modify the Lease shall bind Lender or affect the lien of Lender, without the prior written consent of Lender, except for any lease modification or amendment that does not:
(A) increase any amount of rent or other charge payable pursuant to the Lease; (B) decrease the size of the Premises; (C) alter any of the rights or privileges of Lender or obligations by Landlord or Tenant to the Lender as now provided in the Lease, the Mortgage, this Certificate or by applicable law; (D) impose upon Tenant a greater burden than imposed by the Lease as it now exists with respect to maintenance, repair or re-construction of the Premises; (E) change, either by increase or decrease, the length of the term of the Lease (including the term as extended by any options provided in the Lease); or (F) enable a lien against the Leasehold Interest or the Collateral with superiority over the Leasehold Mortgage or the lien of Leasehold Mortgage.
If Landlord gives any notice, demand, election or other communication (collectively, "notices") to Tenant under the Lease, Landlord shall simultaneously give a copy of each such notice to Lender at the address designated by Lender. All copies of notices shall be given and deemed received in the manner contemplated by the Lease. No notice by Landlord to Tenant shall bind or affect Lender unless Landlord also gives a copy of the notice to Lender pursuant to this section. Lender's address for the purpose of notices is:
In the case of an assignment of the Leasehold Mortgage or change in address of Lender, the assignee or Lender, by written notice to Landlord, may change the address to which copies of notices are to be sent.
8. Prior to Landlord's exercise of any of its remedies under the Lease for default under the Lease by Tenant, including, if applicable, terminating the Lease or Tenant's right of possession of the Premises, Lender shall have the right to remedy the default of Tenant under the Lease, or to cause the subject default under the Lease to be remedied, within the time period, if any, ottered under the Lease for Tenant to do so, plus an additional ten (10) days, in the case of a monetary default or an additional thirty (30) days, in the case of a non-monetary default.
Landlord shall not serve a notice of election to terminate the Lease, or otherwise terminate the Leasehold Interest of Tenant in the case of a non-monetary default that Lender cannot practicably cure without taking possession of the Premises, as long as Lender proceeds diligently to obtain possession of the Premises as mortgagee (including possession by a receiver), and, upon obtaining such possession, proceeds diligently to cure such default.
Landlord agrees to accept any required Tenant performance from Lender as if Tenant had tendered such performance, provided, however, that unless Lender otherwise agrees in writing, any performance or partial performance by Lender under the Lease shall not constitute an assumption by Lender of Tenant's obligations thereunder.
S:1WPFILES12707D/443\Lease-6 (wms 11-16-Il).doc
The exercise and non-exercise of remedies under the Leasehold Mortgage is solely at the election of Lender. If Lender elects to exercise any of such remedies by reason of Tenant's default under the Lease or the Leasehold Mortgage, Lender is not obligated to pursue such remedies.
11. In the event of termination of the Lease for any reason other than expiration of the lease term, including any termination on account of a rejection under the Federal Bankruptcy Code, Landlord shall notify Lender that the Lease has been terminated, and shall deliver a statement of all amounts that would at that time be due under the Lease from Tenant but for such termination, and of all other defaults of Tenant, if any, under the Lease then known to Landlord.
Lender shall thereupon have the option to obtain a new lease for the Premises from Landlord in accordance with and upon the following terms and conditions:
Upon the written request of Lender, given to Landlord within 30 days after Landlord's notice to Lender that the Lease has been terminated, Landlord shall enter into a new lease of the Premises (the "New Lease") with Lender or a Designated Assignee. "Designated Assignee" means any individual or entity which as of the effective date of the New Lease either:
(1) operates movie theatres with a combined total number of auditoriums of no less than two California, or (2) in connection with the assignment of the Lease, is acquiring a majority of Tenant's movie theatres in the state in which the Premises is located.
The reasonable costs for the process of preparing and entering into the New Lease shall be that of the tenant named therein (the "Subsequent Tenant"), which Subsequent Tenant shall be either Lender or the Designated Assignee. The New Lease shall be effective as of the date of termination of the Lease, and shall be upon identical terms as the terms of the Lease. The New Lease shall require the Subsequent Tenant to perform as due for performance any unfulfilled obligation of Tenant under the Lease that is reasonably susceptible of being performed by the Subsequent Tenant. Upon the execution of the New Lease, the Subsequent Tenant shall pay to Landlord: (i) all sums that would at the time of the execution thereof be due under the Lease but for such termination; and (i) all reasonable expenses, including reasonable counsel fees and court costs incurred by Landlord in connection with terminating the Lease and entering into the New Lease, provided that such expenses shall not exceed, in the aggregate, the sum of One Thousand Dollars ($1,000.00).
Lender may, without Landlord's consent, foreclose the Leasehold Mortgage, accept an assignment of Tenant's interest in the Lease in lieu of foreclosure of the Leasehold Mortgage or cause the assignment of Tenant's interest in the Lease to a Designated Assignee in lieu of foreclosure of the Leasehold Mortgage, pursuant to the Loan Agreement or any applicable Upon the exercise of any of the remedies contained in the Leasehold Mortgage, such that Lender forecloses upon, sells, transfers or otherwise terminates Tenant's Leasehold Interest, Landlord agrees that any transfer of Tenant's interest in the Lease shall not terminate the Lease, but the Lease shall be fully assignable to Lender or a Designated Assignee. Lender may also take ownership of, or retransfer, the capital stock of Tenant.
Except for the period of time during which Lender is actually the owner of Tenant's interest in the Lease, Lender shall not be liable to perform any of Tenant's obligations under the Lease. If Lender at any time holds Tenant's interest under the Lease or is the tenant under any New Lease entered into in replacement of the Lease, then, upon any sale, transfer or assignment thereof by Lender to a Designated Assignee, such transfer shall automatically release Lender from any liability under the Lease or, as the case may be, the New Lease, occurring after the date of such sale, transfer or assignment.
Landlord hereby consents to Tenant's grant to Lender of a security interest in the Collateral and recognizes that every right that Landlord now has or hereafter may have, either to levy upon the Collateral or to claim or assert title to the Collateral, whether under the Lease or the laws of the state in which the Premises is located, or under any applicable federal, state, municipal or local law, ordinance or otherwise, or under any mortgage now in effect or hereafter executed, whether by reason of a default under the Lease or otherwise, shall be subject and S:1WPFILES\2707D1443\Lease-6 (wms 11-16-11).doc
subordinate in every respect to all of the terms, provisions and conditions of the Leasehold Mortgage (provided such terms do not alter the terms of the Lease) and to Lender's security interest in the Collateral.
16. Landlord agrees that it will not assert against the Collateral any statutory o possessory lien, including, without limitation, rights of levy or distraint for rent, all of which it hereby waives. Landlord agrees that if Tenant defaults on its obligations to Lender and, as a result, Lender looks to the Collateral, Landlord will not hinder Lender's actions in assembling all of Tenant's Collateral located on or about the Premises, will permit Lender to remove the Collateral from the Premises without charge and will not hinder Lender's actions in enforcing its lien on the Collateral.
The agreements contained in this Certificate may not be modified or terminated orally and shall be binding upon the successors, assigns and personal representatives of Landlord and upon any successor owner or transferee of Landlord's title to the property containing the Witness the signature of the Landlord as of the date first above set forth herein.
LANDLORD:
an Bernardino Economic Development Corporati
nonprofit public benefit corporatic
By: -
Name:
Its:
State of
) ss:
County of
_ 2011 before me,
I certify under PENALTY OF PERJURY under the laws of the State o that he foregoing paragraph is true and correct
Witness my hand and official seal.
My commission expires:
Notary Public
S:IWPFILES12707D1443\Lease-6 (wms 11-16-11).doc
Exhibit H
Memorandum of Lease
(Lease Section 23.11)
(3 pages)
S:(WPFILES(2707D\443\Lease-6(wms 11-16-1]).doc
Memorandum of Lease
This Memorandum of Lease is made and entered into as of the _ 222227
Preliminary Statement:
A legal description of the portion of the Center owned by Landlord is set forth on Exhibit A which is attached hereto and incorporated herein (the "Center Land").
Landlord owns fee simple absolute title to the Center Land pursuant to that certain deed recorded as Instrument No. in the official records of San Bernardino County, California.
Landlord and Tenant, pursuant to Section 23.11 of the Lease, hereby execute this Now, Therefore, in consideration of the foregoing premises and mutual covenants set forth in the Lease, and for other good and valuable consideration, the mutuality, receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows
2. Term. The Rent Term of the Lease will commence on the Rent Commencement Date (as defined in the Lease) and shall end on the completion of the tenth (10th) Rent Year after the thirty-four (34) years.
3. Lease Provisions. The lease of the Premises from Landlord to Tenant is subject to all the terms, covenants and conditions set forth in the Lease.
4. Common Areas and Parking Retention Areas. The Lease grants to Tenant and it:
employees, customers, patrons and invitees a non-exclusive right of use of all of the automobile urking areas, drive lanes, entrance and exit ways and other Common Areas of the Center. T mmon Areas are more specifically defined in the Lease, but (without limitation) include t
5. Exclusive. Section 23.14 of the Lease provides as follows:
S:IWPFILES12707D\443\Lcasc-6 (wms 11-16-II).doc 1
ight). This Center Exclusive Right does not preclude the operation within th enter by others of a video arcade with game machines and does not precluc staurants or retailers on an incidental basis from permitting the restaurant ore customers to view televisions and other like media without chars Adjacent Mall Restriction. LANDLORD is the fee simple owner of that certain shopping center located across 4th Street from the Center known as y portion of the Adjacent Mall, Shall be permitted to lease, license, operate herwise permit all or any portion of the Adjacent Mall for the operation ol notion picture theatre or the display of a motion picture image on any medi egardless of the technology involved, including without limitation multipl game machines and does not preclude restaurants or retailers on an incidental basis from permitting the restaurant or store customers to view televisions and other like media without charge.
City Restriction. LANDLORD has determined that, in the interest Bernardino, the creation of a theater district in the downtown area will furthe such interest. LANDLORD has determined that the creation of a special theate having any auditorium for the presentation of recorded movie productions of a square footage greater than three thousand (3,000) square feet, without the prio vritten consent of TENANT to be granted or withheld in TENANT's sol discretion (the "City Restriction"). • Any circumstance which violates the City Restriction (as above-described) shall be deemed a breach by LANDLORD under this Lease, entitling TENANT to all rights and remedies for breach in addition to I other rights and remedies provided by this Lease (including without limitati at provided in Section 23.14(d'
(d) Exclusive Right Inconsistency. If any event, circumstance or condition occurs which is not consistent with either the Center Exclusive Right, le Adjacent Mall Restriction or the City Restriction (any such being referred 1 s an "Exclusive Right Inconsistency", in addition to all other rights an emedies the TENANT may have, then: (1) for the period commencing on th rst day of the calendar month during with the Exclusive Right Inconsistenc starts and extending to the last day of the calendar month during which the S:1WPFILES12707D14431Lcase-6 (wms 11-16-11).doc
Exclusive Right Inconsistency ends, TENANT shall be relieved of any obligation further obligation under this Lease effective as set forth in written notice from TENANT to LANDLORD.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum of Lease as of the date first above written.
LANDLORD:
S nonprof pinto bench o poredopment Corporation
By:
Name:
Its:
State of
County of
My commission expires:
Notary Public
TENANT:
Regal Cinemas, Inc.
a Tennessee corporation
By:_
Print:
Its:
State of TENNESSEE
County of KNOX
Before me, a Notary Public of the County and State aforesaid, personally appeared , with whom I am personally acquainted, or proved to me on the basis of satisfactory evidence, and who, upon oath, acknowledged himself/herself to be the _ of Regal Cinemas, Inc., a Tennessee corporation, the
within named bargainer, that he/she as such officer executed the foregoing instrument for the urposes therein contained, by signing the name of the corporation by himself/herself as suc fficer, and that he/she was duly authorized thereunto by the board of directors of suc corporation.
Witness my hand and official seal at office in Knox County, Tennesse, this My commission expires: Notary Public
S:1WPFILES12707D1443\Lease-6 (wms 11-16-11).doc
Exhibit I
Common Areas Work Schedule
(Lease Section 3.01)
(3 pages)
S:1WPFILES12707D1443\Lease-6 (wms 11-16-11).doc
ITARTICANPZETONMIESTOREE
A MAP25 NOT PR ELE
1.02 FACECT GOMPLETE -MORELATIONFENCE INGTALCANIEN
DIPSAY12
- 0,123
2005 CONCRETE
101 2 N0V1 • CONCRETE
PUSHARE
•STEEL CAR PIE
I SEWER FIRE
22: RACIEs + 000 e03r
3202- MELECTRICAL PAR ALS
•1:22N0A7
DATE AUCEONEE
LANDSCAPE AOCLSEORIEE
100-221200V5 GREASE ERERCERTGRS
• PAVERS- SAND PAVER ITS
100.
PASE MATERVIS
EXPECTATES: CENCH.
5120 POLS POONACHON TESI REFRIETS
THE IONED COME: • STRIPING MATE 07! 5
2232/E
223:00 A TRUNCATED GOES
3-2 * SKATE STOFS
LANG METER. 5
DUCTUE INDEE CAULKING WATERLS
• DUCTILE IRCH PINE
CETEC.OR CHECK ASSEMELY 10L 23NOV1*
12Co I DETECTOR CHECK ASSEMPLY
SHETE CONSTRUCTIONE
DEMO. POWERS-TATEN 2d
-BLERO PAVERS/IPEES
CLEAR AND GRUES TE
MCFAR AND GRUB SITE
LITY VEPHRATONS 2E TERKE
- RUTILITY VERIFICATIONS
PE GRACING MEETING PRE GRADING MEETING
CENDELETPAL'S-TE VROPY NETER
19% - DEMOELECTRICAL-SITE WORE METER
CEMO PETE OR WAR 1E 20VI F
SENIO SEVEP MESMANCE? = R 2: 7 -DENO JETECTOR CHECK WATER INF
VEREX STELESS THEATER PULEY
OVEREX SITE-LES: I EATER ALLEY
I. TOLSTE SUEVEN SION
INTAL SUE SURVEY STARING ABOURED
ARE 029R* 10% • SEWER • MANHELESS SIRUCTURES
SEAS! DERCEPTORS- 1 OF!
-STORy DRAN OPIN
-STORMORADE CARC BASCIELETE
-TELEPHONE TENCHES DITS
903035:211000 UNTRODES
HERESATION SLEEVES SAUD
County of San Bernardino
DEFIA METER RATCHBEAR STRESSIn
51 SANE
•P3-3502A:.S FOREPOUR STAIRS-RETAINING WALLS
FIReS - SEAT VIALLS
21539212
TENDENER ARE
% TO DIFERE
ПРИСКИМ
*234FE0'3
PAVER NISTMINIKAS
3:054R2
COUL SONGTHODE - A FULL ARGATIANS TER IT.
TO 24FEB:: 1
130520. 3-00 TOFEET: I CAL WALL TICN
STABLES ATE SEEN SAILED STRIP LIGHTING
5e 20FE812
METERS CANELS MAP VO IN 20UAP12 -ON STAINLESS PAPARATE STOFS- SEAT WAL MALTRE: UPUSHANG 092321? METERS SANELS V2N22
CONTINE NEP NETA CATIONS I CALLITREE HIM IGHTING
149 27290R12 154PR12
CODELETE PAVER •ES TARRIE DEMY 12 • ONE ME FEVER STAL: 34 31:2 STAVESS SEE! EJ 1320713 ON COMPLETE PAVERTE
13PRT: STAINLESS STEEL FAILINOS T
FRIGATION HEAD MSTALLATE,
121 (APR12 - M SHUR ISTALLATICE
3-25 IFESTOONPENDANT SEEKS
- WIN SET PEDESTRIAN FOSS
257 REDEPTACLES BOLLASES GRATES -TEST ELECTRICAL. E
STARE POWERS SITE SIGNAZE 10 24APRI2 24APH12 -SETRECEPTACLES FOILARDS.
АЦЕТАТАТЕН *ISTRPE PAVERS SITE SIGNAGE
1009 CEND DONCRETE
050E.C' - PUENTO CONCHETE
5003 GENO VERZON VALL"
- DEMO VERMON VAULT
REX 50533
A ROVER EX EXISTIES
-RACEWAY INSTALLATION
GOVARE INTERCERTOR
* GREASE 'NTERCEPTOR
• INTRENCHTIE IN URINES-ELEC PICAL
FOURNESDAD
-FOR CUNDSWALIS
• POUR SUB SLARS
d 23:FC
-I SLAB CLIPF - 160)
SPAVER INSTALLATONS
1204
21% -FESTO: 12.5143
10020 01 1700912
y 30115:
"CONFOUR ITHE STREET MONS
SUP 2213
-ONFPS DRIEWAYS
County of San Bernardino
Theater Square Cosage
OIFEBI? *340
• ICE PRor 15 1N0 54 127=0 POUR SIGNAL FOUNDA DIONT
ELECTOR SENSE HOME EN
40335 2 ME SERGE 70ND
20205C8:2 2FE012 - PEOPATE SIONAL, SES
-STEFE INTERSECTONS
150E: ELECASE CHERE " 2:40713
spearines
OPEN PREPS
IDE:
-HE VER 34 1 00801
• SPECT ALLEY NOREX
- 200E2 FORME
- SOFT GRACES FOR.
→ SPECT CRAPERE
- NOBLET OFF SITE COMOLAT/RENCES
INSPECI ON SITE FORMS GRADES
: WERE
200AR12 HEPTOT ELECIR CAL UNSTALLATIONS
*SPECT SITE LONISHNS 13 32/4PR12 INSPECEPAVERS TUTES
-20 BE R505-2
SEAT SAR CRANSPECTS
• SENTIAL STAR FOR INSPECTIONE
512
ERNSHENG LAYOUT -TREE LAYOUT. ISPECREN
WE LESTS 24FER1:
515h
073 * TEST5
- COVERAGE 1E3*
County of San Bernardino
theater Square
Exhibit J
Former Theatre Space Work Schedule
(Lease Section 3.01)
(2 pages)
S:1WPFILES12707D14431Lease-6 (wms 11-|6-11) doc
IRWIA AeMeRAN
ISVEAT-I CONC
RETAIL PLAN - PROPOSED
SPLIT FACE BLOCK, TYP.
METAL FACADE TREATMENT, TYP.
SPANDREL GLASS FOR VERTICALITY, TYP.
BRUSHED STEEL AWNING, TYP. METAL FACADE TREATMENT, TYP.
BRUSHED STEEL AWNING, TYP.
rastin
DECORATIVE BLOCK, TYP. PF:
PHAL0_.. TEMASTIN INAV 29 NaP • SODA "H"ArRE
SEAN OE AMDO TRANTDA KAIT EI
SOUTH RETAIL ELEVATION - PROPOSED
* DLR Group
Vattais
YAVITZ. COMPANIES/ WWCOT
2 NEE 260000 Ku8127 -10 EXHIBIT J
THEATER SQUARE - RETAIL NARI SFEn 8 Milh Place, 3F
FALACA CA 5:600 Pasodeno, CA 91101
DECEVBER 16 2011 1: 626.796.8230
NWC 4th STREET & E STREET. SAN BERNARDINO. CA
f: 626.796.8735
71: 0000
PALM TREE WITH T
LISTONER
LITTER AND RECYCLING:
(MEDESTRIAN LIGHTS, TYP. LOADING ZON RECEPTACLES. TYP
CAFE SEATING ZONE.
- STEPS. TYPI
E STREET
FESTOON LIGHTS, TYP.
CANOPY TREE WITH UPLIGHTS. TYP.
REMOVABLE BOLLARDS, TYP. -
PEDESTRIAN SEAT WALLS, TYP.
PALM TREE WITH UPLIGHTS. TYP.
DECOMPOSED GRANITE TYP
ACCESSIBLE PARKING, TYP. ~ • SHRUBŞ AND GROUNDCOVER, TYP.
SSUED FOR CONSYRUCTION • 1092117
- DECORATIVE CONCRETE, TYP.
CONCRETE PAVERS. TYP.
PARKING, TYP.
THEATER SQUARE SIGNAGE --.
A STRET
Underground Servie Mert PLINNING NUMBER ERROR
APPROSIO
COR TOLL FREE AECOM ORATIEG
:-300 E1 ASR CUTE L10-02
223-4133 THEATER SQUARE
iscon, men. muster EXHIBIT J PAGE 2
Exhibit K
DCIP Equipment
(Lease Section 21.01)
(2 pages)
S:\WPFILES12707D/443\Lease-6 (wms 11-16-11).doc
aud w N w Screen &
Part Number
: x.* xx Real D Auditoriums
Real D
XL Unit
-EM SAX-R320 *
Sony 4K Projector
HaNNamr w mime w Sony LMT300/1
ww.miminn.n - - Civolution NEXGUARDDC
Barco DP2K-328 Popcor
Barco DP2K-20C
DCPA-DCI-1TB
Doremi Server
Civolution NEXGUARD
A002
3D Lens
4003
3D Lens
LKRX2020//A
2K Ushio Lamps
LKRX2030//A
3K Ushio Lamps
LKRX2042/]A
-.mim
4.2K Ushio Lamps
M9000-Regal
Pedistal
M M M. M.M.M9000L-Regal
Mm:m m Automation eCNA-10
Eprad 10R-CR0010-0
Automation eCNA-10 with Dimmer Auto
Eprad 1OR-CR0010-4
NIN NIN NINiN 60000933 ifi Catse
NINNN.N
(UPS & Automation to Switch 7ft)
NINNN.N.N.N 10ft Catse
MIN NIN N (Projector to Switch 10ft)
- ua m VT-1
1 RU Vented Pannel
.VT.3
3 RU Vented Pannel
NAMN - VT-2
2 RU Vented Pannel
H ! mo - w. BR-1
Wire Management
MINN HIM N wiAXAESD25MM-35
35' 110 Ohm AES Cable:
NINN'NNNN NIN NNN! :5372 35 ft 8 Conductor Grey Jacket
Sa uso mas it 8 Conductor White 3748
M'nN
-:H
(Automation to Dimmer)
7366380 50ft Cat5e
н.мм H.M H N:M HHM
(ECI-6OD to Switch 50ft)
5888150 M/F 25pin D Sub Cable
N NNNN.NN NIN N N ~ (Audio & Control: D2A to Procesor)
Insight 02643 F/F 25pin D Sub Cable
(LS200 Control; DZA to Procesor)
- minia mo a Otod Converter
Dto A Converter Down mixing
ma ins ns Sound
:P500 6 Channel Input Car DOLBY Cat. 79
CP650 AES InDut Card
MMN.N - - Strong REG-Aud labor
--- m, Mim w w Ballantyne REG-Aud Integ
i- - Ford AUD-FRGT-REG
нм н wim m CS AUD-ERGT-SNY
,w.w w Eprad REG-FRT-PED
SOUND
Flat Scope SYSTE
=
FLAT INAGE AUDIO SPLIT SCOPE
S00: trIE 1!11 CHANN GLASS
PROCESSOR SURR
RATIO RATIO CAPABI
LITY (1,
2, 4, 6)
co N 18-4
17-01
16.10 14-5
23-0 0-00
121-0 0-00
092000g 18.5 0-00
15-4 0-00
88 E 0-00