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HomeMy WebLinkAbout16 - Balboa Bay Club Leasew AGENDA ITEM NO. ]Q CITY OF NEWPORT BEACH I R'y Office of the City ManagerI I June 10, 1996 0 1 ' TO: HONORABLE MAYOR & MEMBERS OF THE CITY COUNCIL FROM: Kevin J. Murphy, City Manager SUBJECT: BALBOA BAY CLUB LEASE GS1cy Attached hereto are copies of an Executive Summary, Option Agreement and Ground Lease Agreement for the Balboa Bay Club, which have been negotiated over the last eighteen months. These are presented to you in Final Draft form for public review prior to a Public Hearing on this matter on June 24th. If you have any questions, please feel free to call. We are attempting to finalize a date for a public workshop prior to June 24th to discuss any questions the public may have on these agreements. At this time, we believe this meeting will take place the week of June 17th. KJM:kf Attachment 6 0 '1 EXECUTIVE SUMMARY OF LEASE AND OPTION AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND THE BALBOA BAY CLUB On June 24th the City Council will consider a new Ground Lease and an Option Agreement between the City and BBC, Property Inc. The two documents are very lengthy and have undergone extensive discussion between the parties over the last eighteen months. The major provisions of the two documents include: OPTION AGREEMENT • The current twenty-five (25) year lease between the City and BBC terminates in 2011. The proposed Option Agreement grants BBC the exclusive right and option to lease the premises pursuant to the terms of the proposed new Ground Lease. • BBC may exercise the option at any time prior to the fifth anniversary of the Option Agreement. • In consideration for the Option Agreement, BBC agrees to pay City $250,000, plus interest accrued at 8% between the Option Agreement approval and the date it is exercised, if it is exercised. • The Option Agreement may be exercised only after BBC has: completed all processing for permits from all governmental entities for the renovation and reconstruction of the premises obtained the City's approval as Landlord of the Concept Plans, Design Development Plans, and Final Plans for the renovation provided evidence to the City that sufficient financing is available to complete the renovation obtained and paid for a building permit to commence construction • The timetable in the Option Agreement requires BBC to submit the Conceptual Plan by June 30, 1997, Design Development Plans within one year of Conceptual Plan approval, and Final Plans and Specifications prior to the expiration of the Option. I N . 9 • • The Option Agreement may not be assigned without the City's approval and unless assignee meets certain net worth and experience tests. • If BBC sells, transfers, conveys or assigns within twenty-four months of completion of the entire project (including the Option period), then the City participates in 20% of the net proceeds after deductions for project costs and a 15% profit. • The term of the new Ground Lease is fifty (50) years commencing upon the completion of the steps necessary to exercise the option to lease the property (see Option Agreement summary below). • Commencement of construction of the new improvements must commence within ninety (90) days of the new lease and must be completed within three years. • BBC agrees to renovate and maintain the hotel in a first class condition and agrees to keep all the other facilities in a condition equal to other quality facilities in the area. • The Rent is the greater of $1,125,000 ("Base Rent") or the "Percentage Rent" as reflected below in the various categories: PERCENTAGE CATEGORY RENT Dues Revenues 6% Apartment Revenues 16.5% Marina Revenues 31% Storage Revenues 20% Charter Commission Revenues 20% Charter Revenues 6% Room Revenues 5% Beverage Revenues 5% Food Revenues 3% Retail Revenues 5% Miscellaneous Revenues 10% 9 -3- Base Rent is adjusted after the first eight years, and every five years thereafter, based upon the prior five years total rent, with base rent then adjusted to 75% of the total rent. • During a thirty (30) month period upon the commencement of the lease, the City agrees to payment of 50% of the Base Rent to ease the financial burden during the construction period. • BBC may not transfer, assign or sell the leasehold interest without the City's consent and the future owner meets certain criteria including net worth tests and experience standards. • If BBC does sell, convey, transfer or assign the leasehold, then the City shares 20% in the net proceeds after certain deductions for costs and profit. • The agreement provides for a capital replacement reserve which is intended to assure the City that the facility will be maintained in a first class condition over the life of the lease. • The agreement contains numerous other provisions which are normally provided between a landlord and tenant in a Ground Lease including: regular audits of records, requirements for qualified managers, insurance, indemnification, default, rights of access, and termination. PUBLIC HEARING NOTICE NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a public hearing regarding: CONSIDERATION OF A NEW GROUND LEASE AND AN OPTION AGREEMENT BETWEEN THE CITY AND THE BALBOA BAY CLUB (BBC) PROPERTY, INC. NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on the 24th day of June. 1996, at the hour of 7:00 p.m., in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, CA 92663, at which time and place interested persons may appear and be heard thereon. if you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City at, or prior to, the public hearing. For information call (714)644-3000. LaVonne M. Harkless, CMC/AAE City Clerk - City of Newport Beach N ncyacey, CMC Actin City Clerk t'll :'d�. �Pi�alirtg D' ' fwd %7/39z� 63 171 0 FINAL DRAFT OPTION AGREEMENT FOR THE LEASE OF REAL PROPERTY by and between THE CITY OF NEWPORT BEACH and BBC PROPERTY, INC. June _, 1996 NB7.215179.V15 06/10/96 0 0 OPTION AGREEMENT FOR THE LEASE OF REAL PROPERTY THIS OPTION AGREEMENT FOR THE LEASE OF REAL PROPERTY (this "Agreement") is made as of June _, 1996, by and between THE CITY OF NEWPORT BEACH, a charter city and municipal corporation ("Optionor"), and BBC PROPERTY, INC., a New York corporation ("Optionee"). RECITALS A. Optionor is the grantee of that certain parcel of real property located In the City of Newport Beach, County of Orange, State of California, as more particularly described on Exhibit A attached hereto (the "Premises"), pursuant to the provisions of the Beacon Bay Bill (Chapter 74 of the Statutes of 1978). B. Optionee, as successor In Interest to Balboa Bay Club, Inc., Is currently occupying and in possession of the Premises pursuant to that certain Lease between Optionor, as lessor, and Balboa Bay Club. Inc., as lessee, dated May 13, 1986 (the "Existing Lease"). C. On November 3, 1992, a majority of the electors of the City of Newport Beach approved Measure M which authorized the City Council of the City of Newport Beach to lease tidelands and waterfront property consistent with the provisions of State law. D. The California State Lands Commission has reviewed the form of this Agreement, and the New Lease attached hereto, and determined that such instruments are in conformance with the provisions of relevant statutes, rules and regulations and have approved such instruments. E. The City Council of the City of Newport Beach has determined that this Agreement, and the New Lease attached hereto, are consistent with the Charter of the City of Newport Beach, and its General Plan and Zoning Ordinances applicable thereto, and of all other applicable State and local laws. Including, without limitation, the Land Use Plan of the Local Coastal Program. F. The City Council of the City of Newport Beach has determined that It is In the best Interests of the citizens of the City of Newport Beach to maintain the use and character of the Premises for the general uses permitted thereon by the General Plan and Zoning Ordinances of the City applicable thereto, and to enter into the New Lease under the terms and conditions set forth therein. NBt•215179.V15 2 of✓1 "S 2 0 6 G. Optionor and Optiouee each desires to enter into an option agreement whereby Optionor will grant to Optionee an option to terminate the Existing Lease concurrently with the entering into by the parties of the New Lease for the Premises as more particularly set forth hereinafter. NOW, THEREFORE, with reference to the foregoing recitals, and in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration the receipt of which is hereby acknowledged, the parties hereto agree as follows: AGREEMENT 1. Grant of Option. Optionor hereby grants to Optionee an exclusive right and option (the "Option") to lease the Premises for the rent and upon the terms and conditions set forth in the Ground Lease attached hereto as Exk1bft B and incorporated herein by this reference (the "New Lease"). 2. Option Consideration. In consideration for the Option, and notwithstanding the provisions of Section 5.b of the Existing Lease, it shall be a condition precedent to the exercise by Optionee of the Option (and the obligation of Optionor to execute the New Lease) that Lessee shall pay to Lessor, concurrently with and as a condition precedent to the exercise of -the Option, the sum of Two Hundred Fifty Thousand Dollars ($250,000), with interest on such sum at eight percent (8%) per annum from the date hereof to the date of such payment. In further consideration of the Option, Optionee has further agreed herein to undertake certain design and planning work in connection with the Project (as defined in the New Lease), at Its sole cost and expense, in the manner and at the times set forth herein. 3. Option Term. Optionee may exercise the Option at any time prior to 5:00 p.m. California time on the fifth (5t) anniversary of the date hereof (the "Option Term"); provided, however, that Optionee shall have no right to exercise the Option at any time Optionee is in material default hereunder or under the Existing Lease, and, in the event of any such default arising after the exercise of the Option but prior to execution of the New Lease by all parties thereto, such prior exercise by Optionee of the Option shall be deemed null and void and of no force or effect ab Initio unless Optionee shall have cured such default within any applicable cure period but in no event later than the date the New Lease would otherwise become effective. NBI.215179.V15 3 06/10M 6 a 4. Conditions Precedent to the Exercise of Option. As a condition precedent to the exercise of the Option by Optionee, Optlonee shall, at its sole cost and expense, (t) complete the processing for and obtain any and all permits, licenses and entitlements from any governmental or quasi -governmental agency or authority having jurisdiction over the renovation and reconstruction of the improvements located on the Premises, as contemplated by this Agreement and the New Lease, including issuance of a Coastal Development Permit from the California Coastal Commission and the approval of this Agreement and the New Lease by the California State Lands Commission, (it) obtain the approval of Optionor to the Conceptual Plan, Design Development Plans, and Final Plans (as set forth in Sections 6, 7 and 8 hereinafter), (111) provide evidence reasonably satisfactory to Optionor that Optionee has the financial resources available to it and/or has arranged and entered into a financing commitment from an institutional tender for financing the construction and renovation of the Project in accordance with the Final Plans, and (iv) have obtained and paid for building permits for construction of the improvements in accordance with the Final Pians approved by Optionor. 5. Cooperation of Optionor. Optlonor shall cooperate with Optionee in Optlonee's reasonable efforts to obtain all required permits and approvals, and shall execute such applications and other undertakings reasonably required in its capacity as the owner of the Premises to enable Optionee to file for and obtain all permits, licenses, variances, permissions and consents necessary to construct the Project and otherwise to perform Its activities under this Agreement; provided, however, that nothing herein shall Imply any obligation Inconsistent with or result in any diminution of Optionor's legislative, quasi -legislative or administrative rights. obligations and prerogatives as a municipal public agency, including, without limitation, Optionor's rights, obligations and prerogatives in connection with reviewing and approving or disapproving any application for any license, permit or entitlement for the development, construction or use of the Premises. 6. Conceptual Plan. Not later than the later of (I) nine (9) months following approval of this Agreement by the California State Lands Commission or (it) June 30, 1997, Optionee shall prepare, or cause to be prepared, and shall submit to Optionor for its review and approval, a proposed conceptual plan for the design, construction, furnishing and equipping of the Project (the "Conceptual Plan"). All elements of the Conceptual Plan shall be prepared In writing by an experienced, reputable and licensed architectural firm and shall include those elements typically included in such types of plans and as required by applicable ordinances and regulations of the City of Newport Beach, but in all events shall Include the following: (1) the general configuration, size and relationship of the Project and all amenities relating thereto, Including all parking (surface and structured), restaurants, lounges, banquet rooms and similar public assembly areas, all guest support, health, exercise, recreational and sports facilities; (11) conceptual elevations and representational sections for all Improvements, features and elements to be constructed on the Property: (iii) a general description of the various elements, functions and layout of the improvements ne,.z, 5»s.VI s 4 06A M6 0 0 (interior and exterior); (Iv) a site plan of the Premises showing all improvements to be constructed thereon and showing the relation of all said Improvements to the adjacent properties and showing the circulation and access plans; (v) schematic drawings of the Project; and (vi) outline specifications for all exterior lighting and landscaping on the Premises. Optionor's right to approve the Conceptual Plan shall be limited to assuring that the proposed improvements are of first class quality and consist of the type and quality required by this Agreement and the New Lease, and Optionor shall not have any right to disapprove any component of the Conceptual Plan which would have the effect of changing the plan previously approved by the City In connection with the zoning of the Premises. It is not intended by the Optionor's review and approval rights under this Agreement that Optionor will Impose esthetic judgments on Optionee unless such design criteria proposed by Optionee shall, in the reasonable judgment of Optionor, result In Improvements which are inconsistent with the standards required by this Agreement and the New Lease. Any disapproval by Optionor must specify with reasonable particularity the portion or portions disapproved and Optionor's suggestlons of alternatives it would approve. On or before three (3) months following Its submission by Optionee to Optionor for approval, Optionor and Optionee shall have agreed upon the Conceptual Pian. The proposed conceptual plan shall be deemed approved if Optionor does not disapprove all or specific portions of the proposed conceptual plan within thirty (30) days following receipt thereof from Optionee. If Optionee shall fail to submit a proposed conceptual plan to Optionor by June 30, 1997, Optionor may by written notice to Optionee, terminate this Agreement and any right of Optionee to enter into the New Lease shall thereafter be of no force or effect. If, by three (3) months following submission of the proposed conceptual plan to Optionor for its approval, the parties are unable to agree upon the Conceptual Plan, or the proposed Conceptual Plan is not deemed approved as aforementioned, either party may by written notice to the other party terminate this Agreement. In such event, this Agreement shall thereafter be of no force or effect, and any right of Optionee to enter into the New Lease shall thereafter be of no force or effect, without affecting the continuation of the Existing Lease. 7. Design Development Plans. Not later than one year following approval of the Conceptual Plan by Optionor, Optionee shall prepare, or cause to be prepared, proposed design development plans, containing all of the elements typically contained In such plans and as required by applicable ordinances and regulations of the City of Newport Beach, and shall within such time period submit said proposed design development plans to Optionor for its review and approval. The "Design Development Plans" shall include. (1) a site plan (scale V equals 40') Indicating the items provided for In the Conceptual Pian and showing In addition thereto principle utilities, setback lines, general drainage plans including the capacities of storm drain and sewer lateral lines; (ii) a proposed lighting and circulation system for both vehicular and pedestrian travel; (iii) principal building plans, sections and elevations (minimum scale 1B" equals 1'), study models and prospective sketches Indicating all exterior architectural information and all interior architectural information relating NBi-215179.V15 08/10196 0 0 to the principal hotel lobby; (iv) designs for lighting and signing the principal hotel lobby and all exteriors of improvements to be constructed on the Premises; and (v) construction schedules showing the principal stages, phases and durations of construction. On or before three (3) months following Optionee's submission of same to Optionor, the parties shall have agreed upon the Design Development Plans for the Project. The proposed Design Development Plans shall be deemed approved if Optionor does not disapprove all or specific portions of the proposed Design Develop- ment Plans within thirty (30) days following submission thereof to Optionor by Optionee. Optionor shall not withhold Its approval of the design development plans submitted by Optionee If and to the extent that such design development plans conform in all material respects with, and are a logical extension of, the Conceptual Plan approved by Optlonor. If Optionor reasonably believes that the proposed Design Development Pians submitted by Optionee do not so conform, Optionor shall advise Optionee in writing of any questions or objections which Optionor has with respect thereto. Optionor shall set forth its comments, suggestions and objections to the proposed Design Development Plans with reasonable specificity in order to permit Optionee to address such concerns. If Optionee shall fall to submit proposed design development plans to Optionor by the date which is one year following approval of the Conceptual Plan by Optionor, Optionor may by written notice to Optionee, terminate this Agreement and any right of Optionee to enter into the New Lease. If Optionee does submit the proposed Design Development Plans to Optionor by such date, and within three (3) months following such submission, the parties are unable to agree upon the Design Development Plans, or the proposed Design Development Plans are not deemed approved as aforementioned, either party may submit the matter to arbitration as provided in Section 29 for resolution. All dates for compliance by Optioaee with Its obligations under this Agreement shall be extended by the number of days necessary to resolve such dispute, but only with regard to such obligations of Optionee the performance of which are reasonably delayed as a result of such dispute. 8. Final Plans and Specifications. (a) Optionee shall submit to Optionor, for Optionor's review and approval, final and full plans and specifications (the "Final Plans") for the Project, including architectural, landscaping, structural, heating and ventilation systems, utilities, sections and detailed designs for lighting and signing of the exterior of the Project, all of which shall conform In all material respects to the Conceptual Plan and the Design Development Plans approved by Optionor. Optionor's right of approval with respect to the Final Plans shall Include the same items subject to Optionor's approval with respect to the Conceptual Plan and the Design Development Plans. Optionor shall advise Optionee in writing of any questions or objections which Optionor has if Optionor reasonably be- lieves that the Final Plans do not so conform in all material respects and shall state its objections with reasonable specificity. In such event, unless Optionee disputes Optionor's disapproval and submits such matter to NB1.215179.V15 6 06n 0/96 0 0 arbitration as hereinafter provided. Optionee shall make subsequent submissions of Final Plans in order to comply with such questions or ob- jections Optionor may have. Landlord shall be deemed to have approved the Final Plans if Landlord fails either to give its written approval or state in writing Its questions or objections to any Final Plans submitted by Optionee within forty-five (45) days atter the date of said submission. If within ninety (90) days following submission of the Final Plans to Optlonor for review and approval, the parties are unable to agree upon the Final Plans, or the Final Plans are not deemed approved as aforementioned, the matter may be submitted to arbitration by either party as provided in Section 29 for resolution. All dates for compliance by Optionee with Its obligations under this Agreement shall be extended by the number of days necessary to resolve such dispute, but only with regard to such obligations of Optionee the perfor- mance of which are reasonably delayed as a result of such dispute. (b) Optionee acknowledges that the approvals by Optionor required in this Section 8 are separate and distinct from any review, approval, permitting or licensing required by the City in its municipal capacity, such as demolition, grading and building permits. The Issuance by the City of any such approval, permit or license shall not constitute approval of any matter requiring the consent or approval of Optionor under this Agreement. 9. Building Permits. Optionee shall apply for and thereafter diligently prosecute to Issuance or denial, at its sole cost and expense, the procurement of all necessary building permits from the City as well as any other governmental entity having jurisdiction over the Premises for the construction of the Project in accordance with the Final Plans which have been approved by Optionor to the extent such approval is required by the terms of this Agreement. In that regard, should the City or any other governmental entity having jurisdiction over the Premises require that Optionee modify a portion of the approved Final Plans, Optionee shall be required to consult with Landlord and, if compliance with governmental requirements may be achieved in more than one manner or fashion and the manner or fashion of Optionee's pro- posed compliance shall not be consistent in all material respects with the Conceptual Plan and the Design Development Plans, to obtain Optionor's prior written approval of the manner or fashion of Optionee's proposed compliance, which approval shall not be unreasonably withheld or delayed. Any dispute between the parties regarding Optionor's approval (or the need for such approval) of the manner or fashion of Optionee's proposed compliance shall be submitted to arbitration in accordance with Section 29; provided, however, that the agreement to arbitrate disputes shall apply solely to approvals required by Optionor pursuant to this Agreement, and shall not apply to any determination by the City in its municipal capacity in connection with the Issuance of permits or licenses, including any matter concerning compliance with any ordinance, resolution, condition of approval, law or regulation applicable to the construction, operation or maintenance of the Project. All dates for compliance by Optionee with its obligations under this Agreement shall be extended by the number N61.215179.V15 7 66M 6196 W1 0 0 of days necessary to resolve such dispute, but only with regard to such obligations of Optionee the performance of which are reasonably delayed as a result of such dispute. 10. Delivery of Plans. In the event of expiration or termination of this Agreement for any reason other than default by Optionor, Optionee shall deliver to Optionor a copy of all plans and specifications for the Project. including the Conceptual Plan, Design Development Plans and Final Plans, and all components thereof, and Optionor shall have the right to use such plans and specifications in any manner It determines in connection with the development of the Premises, subject only to the contractual rights and limitations imposed by the unrelated third party originators of such plans and specifications. 11. Exercise of the Option. (a) Provided that the conditions precedent set forth in Sections 3, and 6 through 8 are satisfied, Optionee may exercise the Option by: (i) delivering to Optionor written notice of such exercise prior to the expiration of the Option Term; and (ii) delivering to an escrow established by the parties with First American Title Insurance Company in Santa Ana, California (the "Escrow"), two (2) executed and, with respect to the Memorandum of Ground Lease, acknowledged originals of the New Lease and the Memorandum of Ground Lease; and (iii) delivering to the Escrow a certified check or other Immediately available funds In the amount of Two Hundred Fifty Thousand Dollars ($250,000), plus interest thereon at eight percent (846) per annum from the date hereof to the date of such payment, in payment of the sum required by Section 2. (b) Within five (5) days of its receipt of the notice described In Section 11(a), Optionor shall deliver to escrow two (2) executed and, with respect to the Memorandum of Ground Lease, acknowledged originals of the New Lease and the Memorandum of Ground Lease. (c) Upon receipt of the Instruments referred to In Sections 11(a) (Ii) and 11(b), escrow bolder Is instructed to deliver executed counterparts to the parties, deliver to Optionor the funds set forth in Section 11(a)(111), and record the Memorandum of Ground Lease In the Official Records of the County of Orange. (d) The parties shall execute such further instructions as the escrow holder shall reasonably require. Optionee shall bear all costs of title insurance which NB1.21 MMS a osnase Q 0 C� Optionee elects to purchase In connection with this Option or the New Lease. All other fees and charges of the escrow shall be paid by the parties In accordance with customary practice in Orange County. 12. State of Title. The parties acknowledge that Optionee has obtained a commitment for title insurance under Order No. 963807 from First American Title Insurance dated May 24, 1996 (the "Title Report") showing the state of title to the Premises. Optionee hereby approves all exceptions to title shown in said Title Report (the "Permitted Exceptions"), and the parties acknowledge and agree that leasehold title to the Premises granted pursuant to the New Lease shall be subject to the Permitted Exceptions. It shall be a condition precedent to Optionee's obligations under this Agreement that the title company is able and willing to issue a leasehold policy of title insurance In favor of Optionee (and any institutional lender providing financing for the construction and renovation of the Project in accordance with the Final Plans) in form and substance satisfactory to Optionee. In the event such condition precedent is not satisfied or waived by Optionee prior to consummation of the transaction as contemplated in Section 11(c), this Agreement may be terminated by Optionee upon written notice to Optionor and the parties shall have no further liability or obligation thereunder. 13. Broker's Commissions. In connection with this Agreement and upon exercising the Option and entering into the New Lease, Optionor and Optionee each represents to the other that It has not entered Into any agreement or Incurred any obligation which might result in the obligation to pay a sales or brokerage commission or finder's fee with respect to this transaction. Optionor and Optionee each agrees to Indemnify, defend, protect and hold the other harmless from and against any and all losses, claims, damages, costs or expenses (including attorneys' fees) which the other' may incur as a result of any breach of the foregoing representation. The representations and obligations of Optionor and Optionee under this Section 13 shall survive the exercise of the Option. 14. Memorandum of Option. Optionor and Optionee agree that no memorandum or short form of this Agreement, or other public notice or filing of this Agreement, shall be recorded in the public records of any authority or agency, including the Official Records of the County of Orange, State of California. 15. Assignment. (a) Except as hereinafter set forth In this Section 15, Optionee may not transfer, assign or hypothecate this Option, or its Interest therein, in whole or in part, without the prior written consent of Optionor in each instance having first been obtained, which consent shall not be unreasonably withheld or delayed. The consent by Optionor to any transfer, assignment or hypothecation shall not constitute a waiver of the necessity for such consent to any subsequent assignment, transfer or hypothecation. This probibitloh against assignment, N91.215179.V15 ofin 0196 a 0 0 transfer or hypothecation shall be construed to include a prohibition against any sale, hypothecation, transfer of possession, or any assignment or transfer by operation of law or otherwise. Optionor shall be deemed to be reasonable In not granting its consent if the proposed purchaser, transferee or assignee falls to meet all of the following criteria: (1) the proposed purchaser, transferee or assignee, or, if the proposed purchaser, transferee or assignee Is a wholly owned subsidiary, Its parent, or the constituent general partners of the proposed purchaser, transferee or assignee shall have a net worth at least equal to the greater of (1) Four Million Dollars ($4,000,000), or (ii) ten percent (10%) of the fair market value of the leasehold estate created by the New Lease. For purposes of determining the fair market value of the leasehold estate created by the New Lease, such value shall be conclusively determined by the purchase price to be paid by the proposed purchaser, transferee or assignee for the Interest to be acquired, as evidenced by information reasonably required by Optionor (for purposes of calculating such net worth, it shall be permissible to Include as an asset of said proposed purchaser, transferee or assignee Its anticipated equity In the Project and the leasehold estate created by the New Lease); (11) the proposed purchaser, transferee, or assignee shall either be a Qualified Manager (as defined in the New Lease) or, if the proposed purchaser, transferee, or assignee is not a Qualified Manager, shall have entered into a binding agreement with a Qualified Manager to manage the Project, it being acknowledged herein that continued management of the Project by a Qualified Manager is an affirmative obligation of Optionee hereunder; and (Iii) the proposed purchaser, transferee, or assignee (or, with respect to a transfer of a controlling interest, the person or entity acquiring such controlling Interest) shall have a reputation for honesty, Integrity and sound business practices. (b) Grant or Denial of Consent. Optionor shall grant or deny Its approval of, or request additional reasonable information and/or documentation with respect to, any proposed transfer, hypothecation or assignment within thirty (30) days following Optionor's receipt of notification from Optionee regarding the proposed transfer, hypothecation or assignment. Following a request from Optionor for additional reasonable information and/or documentation as provided herein, Optionor shall have ten (10) days from Optionor's receipt of such additional Information and/or documentation in which to grant or deny Its approval of the proposed transfer. hypothecation or assignment and/or transferee. Optionor shall be deemed to have granted its approval if Optionor NBt•215179.V15 10 05/10/95 Shall not request additional Information and/or documentation within such thirty (30) day period and Optionor shall not notify Optionee within the time periods herein specified of its decision either to grant or deny Its approval. From and after the effective date of a transfer or assignment by Optionee of the Existing Lease and this Agreement, the transferror or assignor shall thereafter be relieved from any further liabilities or obligations under this Option and Optionor shall look solely to the assignee for performance of such obligations hereunder and under the Existing Lease. (c) Assignment to Affiliate. Optionee shall have the right, without Optionor's consent, to assign this Option: (i) to a partnership or limited liability company controlled by Optionee and In which Optionee is a general partner or member thereof and owns a legal and beneficial Interest therein of not less than twenty-five percent (2545), or to a corporation controlled by Optionee and in which Optionee owns and controls not less than twenty-five percent (25%) of all issued and outstanding stock of such corporation in every class with full and unrestricted voting rights and privileges; or (11) as security pursuant to a Mortgage; provided, however, that any assignment by Optionee under this Section 15(c) shall not relieve Optionee from liability hereunder. (d) Limitation on Transfer of Interest in Optionee. If Optionee is a corporation, an unincorporated association, a partnership or a joint venture, 'the transfer, assignment or hypothecation (except for a hypothecation in connection with a loan transaction of the type contemplated by Article XIV of the New Lease) of a controlling ownership Interest In such entity, whether In a single transaction or multiple transactions and whether to a single person or multiple persons, shall be deemed an assignment within the meaning of this Section 15. Furthermore, any transaction by which Optionee undergoes a merger or other reorganization, Including a sale of all or substantially all of Its assets, wherein Optionee is not the surviving corporation (or the stock holders of Optionee immediately before the merger or reorganization do not retain control of the surviving corporation) shall be deemed, for purposes of the foregoing, a transfer of this Agreement. If Optionee is or becomes a publicly traded entity, any sale or other transfer of any outstanding stock of, or limited partnership interests in, Optionee shall not be deemed an assignment within the meaning of this Section 15 unless said sale or other transfer Is made by a person or entity owning a controlling interest in Optionee and results In a change in the person(s) or entity(les) having control of Optionee. I0Sd41. W-IVIM 11 06A 0196 Irm (e) Existing Mortgagee. Optionor acknowledges that, pursuant to the terms of the deed of trust currently encumbering the Premises, this Agreement shall be and become part of the security for such loan. Optionor further agrees that the terms and conditions of that certain Lessor's Estoppel Certificate, Acknowledgement and Consent to Assignment of Leasehold Estate by Deed of 1'rust dated May 21, 1989, by and between Financial Security Assurance, Inc. and Optionor shall apply with full force and effect to this Agreement. 16. Participation in Sale Proceeds. in the event Optionee (1) sells, conveys, transfers or assigns all or any portion of its Interest in this Agreement, or the leasebold estate created by the Existing Lease (other than to a Mortgagee as security), or (ii) sells, transfers or conveys any interest in Optionee or Its constituent shareholders, including the stock of Optionee of any kind or class, common or preferred, or the beneficial or equitable ownership interest In such stock or in Optionee (collectively, a "Sale"), at any time prior to twenty-four (24) months following the Issuance of the Final certificate of occupancy for the Project, as contemplated in the New Lease, Optionee shall pay to Optionor an amount equal to twenty percent (20%) of the Net Proceeds (as hereinafter defined). For purposes of this Section 16: (a) "Net Proceeds" shall mean the entire consideration paid or payable to or for the benefit of Optlonee or Its constituent shareholders in connection with a Sale (whether in cash, note, In kind or other consideration) less (1) Project Costs (as hereinafter defined) and (11) reasonable and customary actual out- of-pocket costs and expenses of Optionee Incurred in connection with consummating such Sale (excluding any payment made to any Mortgagee or lender to release any Mortgage or other security or otherwise); (b) "Project Costs" shall mean and be limited to: (1) Five Hundred Thousand Dollars ($500,000), in reimbursement of all third party predevelopment costs Incurred and paid by Optionee prior to the date of this Agreement; (11) all third party costs and expenses incurred and paid by Optionee in connection with the design, development, construction and renovation of the Project from and after the date of this Agreement through the date of such Sale (including, without limitation, any required offsite Improvements, demolition of existing improvements, permit and license fees and charges, signage, furniture, fixtures and equipment, architecture, design and engineering fees, insurance bonds, construction management fees, legal and other professional fees related to construction of the Project, financing fees and payments of principal on any new loan obtained by Optionee In connection with the construction and renovation of the Project, plus Interest thereon at the 1401.215179.V15 12 08/10/98 rate of interest charged on the loan obtained by Optionee in connection with the construction and renovation of the Project (excluding any equity kicker, shared appreciation or other similar payment); (iii) an amount equal to fifteen percent (15%) of the sum of subparagraphs (i) and (H) above; and (iv) Thirty Million Dollars ($30,000,000), representing the appraised value of Optionee's interest in the Premises as of May 15, 1996. (c) Project Costs shall exclude any operating cost or expense of the operation of the business of Optionee on the Premises other than predevelopment and development costs set forth above, any fees paid to Optionee or its Affiliates for any purpose, ground rent payable under this Lease, and any other costs or expenses not specifically described in subparagraph (b)(1) through (iv) above. From time to time, but not less often than quarterly, Optionee shall provide Optionor with a certified schedule of Project Costs with reasonable supporting documentation. (d) Net Proceeds shall not include any proceeds of a Sale which are not distributed to or for the benefit of Optionee or its constituent shareholders, and which are used by Optionee in the payment of costs and expenses incurred In the construction and renovation of the Project. 17. Successors in Interest. Subject to Section 15, this Agreement shall Inure to the benefit of and be binding upon the successors, personal representatives, heirs and assigns of the parties hereto. 18. Time Periods. Unless "business day" Is specified, the term "day' means a calendar day. Nevertheless, whenever action must be taken under this Agreement during a certain period of time or by a certain date that ends or occurs on a day which is not a business day, the time for performance shall be extended to the next business day. The term "business day' means any day other than a Saturday, Sunday or Federal or State of California holiday. 19. Attorneys' Fees. If either party files any action or brings any proceeding against the other arising out of this Agreement or any agreement executed pursuant hereto, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, reasonable attorneys' fees to be fixed by the court. 20. Notices. Any notice, request, demand, instruction or other communication to be given to either party hereunder shall be in writing and shall be deemed to have been duly given when personally delivered, twenty-four (24) hours after deposited with a reliable overnight carrier guaranteeing next day delivery, postage prepaid, addressed NBt •215179.V15 13 0611 0196 0 0 as set forth below, or forty-eight (48) hours after mailed by United States registered mail, return receipt requested, postage prepaid as follows: If to Optionor: City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658-8915 Attention: City Manager With copy to: O'Melveny & Myers 610 Newport Center Drive Suite 1700 Newport Beach, CA 92660-6429 Attention: Dowell C. Martindale, Jr. If to Optionee: BBC Property, Inc. 1221 West Coast Highway Newport Beach, CA 92663 Attention: General Manager With copy to: Pinto. Gromet, Dubla & Worcester 2 Park Plaza Suite 300 Irvine. CA 92714 Attention: Saul B. Pinto Either party may change its address for purposes of receiving notice hereunder by giving notice to the otber party pursuant to the provisions hereof. Refusal to accept delivery of any notice, request, demand, Instruction or other communication shall be deemed to be delivery thereof. 21. Time is of the Essence. Except as expressly provided otherwise in the Agreement, time is of the essence of this Agreement. 22. Entire Agreement. This Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein, and no prior agreement or understanding pertaining to any such matter shall be effective for any purpose. No provision of this Agreement may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors In interest. 23. Interpretation. This Agreement shall not be construed more strictly against. one party than against the other. It being recognized that both parties have contributed substantially and materially to the preparation of this Agreement. Nsi-215179.VI5 14 osnmss 141 0 0 24. Governing Law. The language in all parts of this Agreement shall be construed In accordance with the Internal laws of the State of California (without regard to conflicts of law principles). 25. Section Headings. Headings at the beginning of each numbered section of this Agreement are solely for the convenience of the parties and are not a part of this Agreement. 26. Counterparts. This Agreement and any amendment or supplements to it may be executed in counterparts, and all counterparts together shall be construed as one document. 27. Waiver. No covenant, term or condition of this Agreement shall be deemed to have been waived by any party hereto unless such waiver Is In writing signed by the party against whom such waiver Is asserted. 28. Attorneys' Fees. If any party incurs any expense, including reasonable attorneys' fees and expenses, In connection with any action or proceeding against the other, arising out of or In connection with this Agreement, whether or not such action proceeds to trial, the sums so paid by the prevailing party shall be due from and be paid by the nonprevailing party on demand. 29. Arbitration. In the event of a dispute regarding the approval or disapproval by Optionor of the Design Development Pians and/or the Final Plans, or any changes thereto as provided in Sections 7, 8 or 9 hereof, if the parties are unable to resolve such dispute, the parties shall proceed under this arbitration provision. Within ten (10) days following the expiration of the ninety (90) day period described in Sections 7 or 8(a), respectively, the parties shall meet to select an independent architect satisfactory to both parties to whom the matter shall be referred for resolution. if the parties are unable to mutually select such independent architect within such ten (10) day period, each party shall select an architect of Its choice within five (5) days thereafter. Within five (5) days following the selection of the last selected architect, the two (2) architects so selected shall select a third architect to assist in resolving the dispute. If the two (2) architects so selected are unable to mutually select the third architect, either party shall be entitled to petition the presiding Judge of the Orange County Superior Court to select such third architect. Any architect selected hereunder must be licensed and have not less than (10) years experience in,hotel design. If only one architect Is utilized, the cost of such architect shall be shared equally by the parties. If more than one architect is selected, each party shall bear the cost of its own architect as well as one-half of the cost of the third architect. Tie architects) selected shall meet with each of the parties independently as well as Jointly within ten (10) days following the selection of the last architect to act hereunder. Within ten (10) days following such Joint meeting, the architect(s) shall render Its/their determination resolving the dispute. NBt-215179.V1 S 15 mom 0 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. NB1.215179.V15 CITY OF NEWPORT BEACH, a municipal corporation By. BBC PROPERTY, INC., a New York corporation 16 06/1 ONO NB1.215179.V15 • EXHIBIT A LEGAL DESCRIPTION OF THE PREMISES A-1 06/10/96 trim GROUND LEASE by and between CITY OF NEWPORT BEACH, a municipal corporation "Landlord" and BBC PROPERTY, INC., a New York Corporation "Tenant" Dated as of NBI.21513GN18 • FINAL DRAFT GROUND LEASE TABLE OF CONTENTS ARTICLE 1 DEFINITIONS, GRANT AND TERM ......................... 2 1.1 Definitions ........................................... 2 ARTICLE II GRANT OF LEASE AND TERM ............................ 10 2.1 Lease .............................................. 10 2.2 Term ............................................... 10 2.3 Quiet Possession ...................................... 10 2.4 Ownership of Improvements ............................. 11 ARTICLE III CONSTRUCTION AND IMPROVEMENT OF PREMISES ............ ..... ............ I.,................... 12 3.1 Improvements to be Erected by Tenant ..................... 12 3.2 Coastal Approval and Entitlements ........................ 12 3.3 Compliance With Laws ................................. 12 3.4 Lien Free Completion .................................. 13 3.5 As -Built Drawings ..................................... 13 3.6 Tenant's Architects and Contractors ....................... 14 3.7 Costs of Construction .................................. 14 3.8 Renovation and Maintenance of Hotel ...................... 14 3.9 Renovation and Maintenance of Apartments ................. 15 3.10 Maintenance of Marina Operations ........................ 15 3.11 Landlord's Cooperation . ................................ 16 ARTICLE IV REPRESENTATIONS AND WARRANTIES .................... 16 4.1 Landlord's Representations and Warranties ................. 16 4.2 Tenant's Representations and Warranties ................... 17 ARTICLE V RENT ............................................... 17 5.1 Rent ............................................... 18 5.2 Percentage Rent ...................................... 18 5.3 Base Rent During Construction ........................... 19 5.4 Periodic Adjustments of Base Rent ........................ 19 5.5 Fair Market Adjustment of Base Rent ...................... 19 5.6 Payment of Rent ...................................... 20 5.7 Charges for Goods and Services .......................... 20 5.8 Reconciliation of Annual Rent ............................ 20 NB 1.21 a 136. W B 6!66/96 h -9— 0 0 5.9 Place for Payment of Rentals ............................ 21 5.10 Records and Reports of Sales ............................ 21 5.11 Additional Rent ....................................... 22 5.12 No abatement or Reduction in Rent ........................ 22 5.13 No Partnership Created ................................. 22 5.14 Net Lease ........................................... 23 ARTICLE VI TENANT'S OBLIGATION WITH RESPECT TO MAINTAINING PREMISES ............................... 23 6.1 Repairs and Maintenance ............................... 23 6.2 Taxes and Assessments ................................. 23 6.3 Capital Replacement During Term ......................... 24 ARTICLE VII USE OF PREMISES .................................... 25 7.1 Use of Premises ...................................... 25 7.2 Pump -Out Station ..................................... 26 7.3 Environmental Requirements ............................ 26 ARTICLE VIII CONDUCT OF BUSINESS BY TENANT ...................... 26 8.1 Standards of Operation ................................. 26 8.2 Management ......................................... 27 8.3 Competition by Tenant .................................. 27 8.4 Use of Name .......................................... 28 ARTICLE IX' ALTERATIONS, FIXTURES AND SIGNS ..................... 28 9.1 Tenant's Right to Make Alterations ........................ 28 9.2 Prohibition Against Liens ............................... 28 9.3 Signs ............................................... 28 ARTICLE X INSURANCE, INDEMNITY AND CASUALTY ................... 29 10.1 Insurance ........................................... 29 10.2 Indemnification ....................................... 32 10.3 Settlement of Insurance Claims ........................... 34 10.4 Casualty ............................................ 34 10.5 Casualty Late In Term .................................. 34 10.6 No Abatement of Rent .................................. 34 ARTICLE XI UTILITIES ........................................... 35 11.1 Utilities ............................................. 35 NB1-215136A1 B 6/66!96 0 0 ARTICLE XII ESTOPPEL CERTIFICATES .............................. 35 12.1 Estoppel Certificates ................................... 35 ARTICLE XIII ASSIGNMENT AND SUBLEASING ......................... 36 13.1 Limitation on Right to Assign ............................ 36 13.2 Grant or Denial of Consent .............................. 37 13.3 Non -Application to Guest Rooms and Facilities ............... 37 13.4 Assignment to Affiliate ................................. 38 13.5 Limitation on Transfer of Interest in Tenant ................. 38 13.6 Participation In Sale Proceeds ........................... 39 ARTICLE XIV HYPOTHECATION ..................................... 41 14.1 Tenant's Right to Hypothecate ............................ 41 14.2 Notice to and Rights of Mortgagees ........................ 42 14.3 Nonsubordl nation of Fee ................................ 45 14.4 Equipment Financing ................................... 45 14.5 Cross Collateralization of Premises ....................... 46 ARTICLE XV WASTE AND GOVERNMENTAL REGULATIONS ............... 46 15.1 Waste or Nuisance .................................... 46 15.2 Governmental Regulations ............................... 46 15.3 Tenant's Right to Contest Governmental Regulations .......... 46 ARTICLE XVI EMINENT DOMAIN .................................... 47 16.1 Lease Governs ........................................ 47 16.2 Termination of Lease ................................... 47 16.3 Partial Taking; Rental Abatement ......................... 47 16.4 Partial Taking; Restoration .............................. 48 16.5 Distribution of Award .................................. 48 16.6 Allocation of Award; Partial Taking ........................ 48 16.7 Allocation of Award; Temporary Taking ..................... 49 16.8 Allocation of Award; Total Taking ......................... 49 16.9 Conduct of Proceedings ................................. 49 16.10 Notices ............................................. 50 ARTICLE XVII DEFAULT PROVISIONS ................................. 50 17.1 Events of Default ...................................... 50 17.2 Remedies Upon Default ................................. 51 17.3 Landlord Acting for Tenant's Account ...................... 52 NB1-215136.V18 6/0696 W1 NBI.215136.V16 17.4 Limited Liability; Non -Recourse Ground Lease ............... 52 ARTICLE XVIII LANDLORD'S ACCESS .................................. 53 18.1 Landlord's Right of Access .............................. 53 ARTICLE XIX MISCELLANEOUS ..................................... 53 19.1 Waiver .............................................. 54 19.2 Accord and Satisfaction ................................. 54 19.3 Entire Lease ......................................... 54 19.4 Termination of Existing Lease ............................ 54 19.5 Force Majeure........................................ 54 19.6 Notices ............................................. 55 19.7 Captions and Section Numbers ........................... 56 19.8 Construction of Language ............................... 56 19.9 Broker's Commission ................................... 56 19.10 Limitation of Landlord's Obligations ....................... 56 19.11 Landlord's or Tenant's Discretion ......................... 56 19.12 Interest ............................................. 57 19.13 Successors .......................................... 57 19.14 Applicable Law ....................................... 57 19.15 Landlord's and Tenant's Rights are Cumulative ............... 57 19.16 Saving Clause ........................................ 57 19.17 Attorneys' Fees and Expenses ............................ 57 19.18 Injunctive Relief ...................................... 57 19.19 Appraisal ............................................ 57 19.20 Recording ........................................... 58 19.21 Incorporation of Preamble, Recitals and Exhibits ............. 58 NBI.215136.V16 GROUND LEASE THIS GROUND LEASE (this "Lease") is made as of by and between THE CITY OF NEWPORT BEACH, a charter city and municipal corporation ("Landlord"), and BBC PROPERTY, INC., a New York Corporation ("Tenant"). RECITALS A. Landlord is the grantee of that certain parcel of real property located in the City of Newport Beach, County of Orange, State of California, as more particularly described on Exhibit A attached hereto (the "Premises"), pursuant to the provisions of the Beacon Bay Bill (Chapter 74 of the Statutes of 1978). B. Tenant is currently occupying and in possession of the Premises pursuant to that certain Lease between Landlord, as lessor, and Tenant, as lessee, dated May 13, 1986 (the "Existing Lease"). The Premises are operated as a multi -use hotel and club facility by International Bay Clubs, Inc., an Affiliate of Tenant, operating under the name 'Balboa Bay Club." C. On November 3, 1992, a majority of the electors of the City of Newport Beach approved Measure M which authorized the City Council of the City of Newport Beach to lease tidelands and waterfront property consistent with the provisions of State law. D. The California State Lands Commission has determined that this Lease conforms with the provisions of relevant statutes, rules and regulations and has approved this Lease. E. The City Council of the City of Newport Beach has determined that this Lease is consistent with the Charter of the City of Newport Beach, and Its General Plan and Zoning Ordinances applicable thereto, and of all other applicable State and local laws. F. The City Council of the Cltyof Newport Beach has determined that it is In the best interests of the citizens of the City of Newport Beach to maintain the use and character of the Premises for the general uses permitted thereon by the current General Plan and Zoning Ordinances of the City applicable thereto, and to enter Into this Lease under the terms and conditions set forth herein. G. Landlord and Tenant entered Into that certain Option Agreement for the Lease of Real Property dated as of June 1996 (the "Option Agreement") granting Tenant the right to enter Into a new lease for the Premises on the terms and conditions set forth herein. Tenant has duly exercised such option, all conditions precedent to such exercise have been satisfied, and there exists no event of default NOl•215136.V16 6/06/98 under the Existing Lease or the Option Agreement as of the date of the exercise of the option by Tenant or the date hereof. H. Landlord and Tenant each desires to terminate the Existing Lease and concurrently therewith enter into this Lease. J. Landlord and Tenant agree that the Option Agreement and this Lease fully comply with and completely satisfy the obligations of Landlord and Tenant under all prior agreements and understandings. Including all prior Memoranda of Understanding and the Existing Lease. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITIONS, GRANT AND TERM 1.1 Definitions. For purposes of this Lease, the following definitions shall apply: "Accounting Period" means a calendar quarter. "Affiliate" means any individual, corporation, partner, partnership, limited liability company, trust or other entity which directly or indirectly Controls, is directly or indirectly Controlled by, or is under common Control, whether it be direct or indirect, with the specified entity. "Apartment Revenues" means Gross Revenues derived by the Tenant Parties from the rental of apartments within the Project, whether for transient or long- term occupants, plus any portion of any Award made on account of a temporary Taking allocated to "Apartment Revenues" pursuant to Section 16.7 of this Lease. "Charter Commission Revenues" means Gross Revenues derived by the Tenant Parties from commissions received for arranging boat charters of bay or ocean going vessels for guests trips and special purpose occasions, Including Newport Harbor cruises, whether or not such charters depart from or arrive at the Premises, plus any portion of any Award made on account of a temporary Taking allocated to "Charter Commission Revenues" pursuant to Section 16.7 of this Lease. "Charter Revenues" means Gross Revenues derived by the Tenant Parties from operating or managing the boat charters of bay or ocean going vessels for guests trips and special purpose occasions, including Newport Harbor cruises, whether or not such charters depart from or arrive at the Premises, plus any portion of any N5I.216136.VI B z &06196 0 Award made on account of a temporary Taking allocated to "Charter Revenues" pursuant to Section 16.7 of this Lease. "City" means the City of Newport Beach, located In the County of Orange, State of California, a charter city formed pursuant to the laws of the State of California. References in this Lease to the City (as distinguished from Landlord) are intended to distinguish actions, rights and powers of the City in the exercise of Its municipal and legislative powers and authority and the discharge of Its legislative and municipal responsibilities from the actions of Landlord pursuant to this Lease. This Lease shall not limit, preclude or infringe upon the municipal and legislative powers and authority of the City, or the discharge of its legislative and municipal responsibilities, whether or not any of such actions, authority, powers or responsibilities are discretionary, administrative or mandatory under law. "Commencement Date" means the date set forth in the introductory paragraph of this Lease. "Control", "Controlled by" or "Controlling" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity whether through ownership of an interest therein, through ownership of voting securities, by contract or otherwise. "Constituent Member" means any constituent partner, joint venturer, holder of a beneficial interest or shareholder in Tenant, or in any partnership, joint venture, trust or corporation holding a direct or indirect interest in Tenant. "County" means the County of Orange, State of California. "Default Rate" means the then Prime Rate plus five percent (5%) per annum. The Default Rate shall change as and when the Prime Rate shall change. "Dry Storage Revenues" means Gross Revenues derived by the Tenant Parties from the dry storage of small boats on the Premises on behalf of guests, members and other persons, plus any portion of any Award made on account of a temporary Taking allocated to "Dry Storage Revenues" pursuant to Section 16.7 of this Lease. "Dues Revenues" means Gross Revenues derived by the Tenant Parties from membership dues and fees for membership in or use of the club, spa, recreational facilities or beach at the Project (exclusive of security deposits), and Bay Window Magazine subscriptions and sales, plus any portion of any Award made on account of a temporary Taking allocated to "Dues Revenues" pursuant to Section 16.7 of this Lease; provided, however, that charges for or Income derived from any service or facility included in any other category of Percentage Rent, such as, byway of example and not limitation, food and beverage revenues or rental of guest rooms, shall not be included in Dues Revenues. NRI-215136.V1B 6166196 91 "Event of Default" means the occurrence of any of the events listed in Section 17.1 and the expiration of any applicable notice and cure period provided in said Section. "Final Plans" means the final plans approved by Landlord as provided in the Option Agreement: "Fiscal Year" means the period of October 1 through September 30 of each year of the Term. "Food and Beverage Revenues" means Gross Revenues derived by the Tenant Parties from the sale of food and beverages (including food and beverages from all facilities, off -premises food and beverage sales, cover charges, service charges and miscellaneous banquet revenue), plus any portion of any Award made on account of a temporary Taking allocated to "Food and Beverage Revenues" pursuant to Section 16.7 of this Lease, but shall not include (i) the value of gratis meals furnished to Tenant's employees as an incident of their employment, (li) gratuities paid to employees, and (iii) the value of meals provided in connection with charitable events when no Tenant Party receives payment therefor other than by reason of a charitable contribution. "Force Majeure" means, without limitation, such events as: strikes; lockouts; acts of God; inability to obtain labor, materials, equipment or supplies; breaches of contract by contractors, subcontractors or material suppliers which materially effect the critical path of construction of the improvements contemplated by this Lease; breaches of contract by any lender with a lien on the Project which materially effect the critical path of construction of the improvements contemplated by this Lease (but in no event shall such event of Force Majeure result In any permitted delay in performance by Tenant of any obligation under this Lease by a period in excess of six (6) months); governmental restrictions; moratoriums, initiatives, referenda imposed by or occurring within the County or other governmental agency which now or hereafter has jurisdiction over the Premises; war or enemy action or invasion; civil commotion; insurrection; riot; mob violence; malicious mischief or sabotage; unusual failure of transportation; fire or any other casualty; flood; earthquake; unusually adverse weather conditions; a Taking; any litigation or other judicial or administrative proceeding or the passage, promulgation or application of any law, order or regulation of any governmental, quasi -governmental, judicial or military authority; either party's delay in responding to the other party's request for approval or consent which the requesting party is required to obtain hereunder beyond the period of time the responding party is given under this Lease to respond; or other similar causes beyond the control of the delayed party; any of which has the effect of delaying, hindering or preventing such party's performance of its obligations hereunder. if the event of Force Majeure arises out of a party's delay in responding to the other's request for consent or approval, then the delayed party shall notify the NB I.215136.V16 4 6/0696 0 0 other party of such event of Force Majeure promptly after the delayed party has knowledge that such delay will or may occur as a result thereof, and the delayed party shall use reasonable efforts to minimize the effects thereof. With respect to the occurrence or threat of any event of Force Maleure, the delayed party agrees to notify the other party promptly after the delayed party has knowledge that such event of Force Maleure may or will occur. "Furnishings" means all furniture, furnishings, fixtures and equipment used in the operation of the Project, including: all wall coverings, draperies, blinds, shades, shutters and other window coverings, curtain rods, valances and other window treatments; tapestries, paintings, art and sculpture; carpets, rugs and other floor coverings; bar, saloon, lounge, dining, banquet, meeting and guest room furniture and furnishings; laundry, valet and dry cleaning equipment; office and material handling equipment and machinery; maintenance, janitorial, cleaning and engineering equipment; all kitchen equipment and facilities (whether or not permanently attached), and machinery, equipment and furnishings used in food and beverage storage, preparation, heating and refrigeration; and all trade fixtures. "Gross Revenues" means all gross receipts of every kind and nature, whether for cash, credit or barter, from any business, use or occupation, or any combination thereof, transacted, arranged or performed, in whole or in part, on, from or for services from the Premises, whether operated by the Tenant or by a sublessee, licensee or concessionaire if such sublessee, licensee or concessionaire is an Affiliate of Tenant for Room Revenues, Food and Beverage Revenues; Apartment Revenues, Marina Revenues, Dry Storage Revenues, Charter Revenues, Charter Commission Revenues, Dues Revenues, Retail Revenues and Miscellaneous Revenues. In the computation of Gross Revenues for any of the above mentioned categories thereof, there shall be excluded therefrom the following amounts- (]) rebates, refunds and discounts (exclusive of credit card discounts or commissions paid to a credit card system) to customers given in the ordinary course of obtaining such revenues; (ii) excise, sales and use taxes collected directly from patrons or guests or as a part of the sales price of any goods or services, such as gross receipts, admission, cabaret or similar taxes, which are accounted for by Tenant to any governmental agency; (111) income or interest derived from cash, securities and other property acquired and held for investment by Tenant (including income or interest earned on any amounts held in operating or replacement reserves for the Project); (iv) proceeds of Insurance other than business interruption or rental loss insurance, (v) advertising, promotional or charitable billings not actually charged or paid; and (vi) bad or uncollectible debts. Sales upon credit shall be considered cash sales and shall be Included in the gross receipts for the period during which the goods or services are delivered or performed. All Gross Revenues shall be computed without deduction or allowance for costs, charges or expenses for the purchase, sale, transportation or delivery NBl•215130.V18 6/06198 .n 1 of merchandise or services, or for labor and materials in connection with the rendering of services or the sale of goods. "Hazardous Material" means any flammable explosives, asbestos, asbestos containing materials, radioactive materials, hazardous wastes, petroleum polychlorinated biphenyls, toxic substances or related injurious materials, whether Injurious by themselves or In combination with other materials, "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" as defined in Chapter 6.5 of Division 20 (Section 25100 et seq.) of the California Health and Safety Code, as amended, or any successor statute, (b) "hazardous substance" as defined in the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. Section 9601 et seq.), as amended, or any successor statute, (c) "hazardous material' as defined in the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), as amended, or any successor statute, (d) "hazardous waste," "solid waste," "sludge," "used oil," "recycled oil," and "re -refined oil" as defined in the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), as amended, or any successor statute, (e) "hazardous substance" as defined in the Carpenter -Presley -Tanner Hazardous Substance Account Act, Chapter 6.8 of Division 20 (Section 25300 et seq.) of the California Health and Safety Code, as amended, or any successor statute, (f) "hazardous substance" as defined in Chapter 6.7 of Division 20 (Section 25280 et seq.) of the California Health and Safety Code, as amended, or any successor statute, (g) "hazardous material," "hazardous substance" or "hazardous waste" as defined in Chapter 6.9 of Division 20 (Section 25501 et seq.) of the California Health and Safety Code, as amended, or any successor statute, (h) "hazardous substance" as defined in the Clean Water Act (33 U.S.C. Section 1251 et seq.), as amended, or any successor statute, or (i) any substance, materials or wastes now or in the future listed in (1) the United States Department of Transportation Hazardous Materials Table (49 C.F.R. Section 172.101), as amended or any successor; (2) the Environmental Protection Agency list (40 C.F.R. Part 302), as amended or any successor; (3) the list published in Title 26 of the California Administrative Code, as amended or any successor; or (4) any other list published by any federal or state governmental entity now or In the future. "Hazardous Material Activity" means any storage, holding, release, emission, discharge, generation, abatement, disposition, handling or transportation of any Hazardous Material from, on or otherwise relating to the Premises exclusive of use of minor quantities of Hazardous Materials In the ordinary course of business in compliance with applicable law. "Inventories and Supplies" means Inventory and supply Items, including chinaware; glassware, linens, silverware, utensils, uniforms, office supplies, paper supplies, guest room supplies, cleaning supplies and other consumable supplies, food and beverage inventories and goods held for resale or used or intended for use in connection with the conduct of Tenant's business on the Premises. NBt-215136.V1 B o 6!6696 0 0 "Lease Interest Rate" means the then Prime Rate plus two percent (2%) per annum. The Lease Interest Rate shall change as and when the Prime Rate shall change. "Leasehold" means the leasehold estate created by the terms and subject to the conditions of this Lease. "Marina Revenues" means Gross Revenues derived by the Tenant Parties from the rental of boat slips and temporary dock or slip fees and charges (exclusive of utility reimbursements paid by slip renters) plus any portion of any Award made on account of a temporary Taking allocated to "Marina Revenues" pursuant to Section 16.7 of this Lease. "Miscellaneous Revenues" means all Gross Revenues derived by the Tenant Parties from the Project excepting those receipts previously categorized under Apartment Revenues, Charter Revenues, Charter Commission Revenues, Dry Storage Revenues, Dues Revenues, Food and Beverage Revenues, Marina Revenues, Retail Revenues and Room Revenues derived from the Project, including but not limited to sales from gift and other shops, rentals or agreements for other guest services, vending machines revenues, any revenue or income related to telephone and telecommunication operations, any revenue or income related to cable or video television operations, parking charges or fees, proceeds of business interruption or rental loss insurance (net of Tenant's reasonable costs of settling the claim giving rise to such proceeds with the insurance carrier), plus any portion of any Award made on account of a temporary Taking allocated to "Miscellaneous Revenues" pursuant to Section 16.7 of this Lease, plus all rentals or other Payments from sublessees, licensees or concessionaires who are not Affiliates of Tenant, and any other Gross Revenues which may be received from time to time which are not specifically provided for in the categories described in Apartment Revenues, Charter Revenues, Charter Commission Revenues, Dry Storage Revenues, Dues Revenues, Food and Beverage Revenues, Marina Revenues, Retail Revenues and Room Revenues. "Mortgage" means any deed of trust, mortgage or similar security instrument entered into by Tenant encumbering the leasehold estate created by this Lease, as permitted by this Lease, including an assignment of this Lease as security therefor. "Mortgagee" means the holder of or beneficiary under a Mortgage. "Partial Taking" means a Taking which does not constitute a Total Taking or a Temporary Taking. "Percentage Rent" means the rental calculated in accordance with Section 5.2 of this Lease. NB7.215136.V18 0 • "Premises" means the parcel of land located in the City of Newport Beach, County of Orange, State of California, as more fully described in EXbibit A attached hereto and by this reference Incorporated herein. "Prime Rate" means the prime or base rate of interest, or equivalent rate of Interest. however termed, as announced from time to time and as so identified by Bank of America. "Prime Rate" means the prime or base rate of interest, or equivalent rate of interest, however termed, as announced from time to time and as so identified by The Wall Street Journal if at any time Bank of America shall fall or cease to publish and announce a prime or base rate of Interest. "Project" means all Improvements, elements and features constructed or to be constructed on the Premises, including a private membership club, hotel, rental apartments, boat slips, spa and health club, food and beverage facilities, recreational facilities, parking facilities, and all other amenities and services customarily found in projects in Southern California of the type, size and quality described herein, all in accordance with the Final Plans approved by Landlord pursuant to the Option Agreement. "Qualified Manager" means, as to the hotel portion of the Project, during any time the hotel portion of the Project is being managed by Tenant or an Affiliate, an Individual employed by Tenant or such Affiliate who Is an experienced hotel operator with a good reputation for honesty and integrity and who has not less than ten (10) years experience in the operation and management of first class hotel facilities, and who does not own, lease, manage or have an Interest in any other hotel prohibited by Section 8.3 (except for ownership of less than a Controlling interest in a corporation whose capital stock is publically traded); and during any time the hotel portion of the Project is being managed on behalf of Tenant by an independent operator under a management contract, a regionally recognized hotel operator of first-class resort hotels of the type, size and quality of the hotel portion of the Project, who has the financial ability to perform its obligations under a conventional management agreement for the management and operation of the hotel portion of the Project, who enjoys a reputation for honesty and integrity, who is experienced in the management and operation of hotels meeting the first-class standards of the Project, and who does not own, lease, manage or have an interest in any other hotel prohibited by Section 8.3 (except for ownership of less than a Controlling Interest in a corporation whose capital stock is publically traded). As to the restaurant portions of the Project, a "Qualified Manager" means, a Qualified Manager of the hotel portion of the Project, or during any time the restaurant portion of the Project is being managed by Tenant or an Affiliate, an individual employed by Tenant or such Affiliate who is an experienced restaurant operator with a good reputation for honesty and integrity and who has not less than ten (10) years experience in the operation and management of first class restaurant facilities; and during any time the restaurant portions of the Project is being managed on behalf of Tenant by an independent operator under NB1.2151 XV18 0 0 a management contract, a regionally recognized restaurant operator of first-class restaurants of the type, size and quality of the restaurant portions of the Project, who has the financial ability to perform its obligations under a conventional management agreement for the management and operation of the restaurant portions of the Project, who enjoys a reputation for honesty and integrity, and who Is experienced in the management and operation of restaurants meeting the first- class standards of the Project. "Reserve Account" shall have the meaning ascribed to it in Section 6.3. "Retail Revenues" means Gross Revenues derived by the Tenant Parties from the sale of goods and services from retail shops, including clothing and other soft goods, hair and beauty salons, gift and sundries shops , plus any portion of any Award made on account of a temporary Taking allocated to "Retail Revenues" pursuant to Section 16.7 of this Lease. "Room Revenues" means Gross Revenues derived by the Tenant Parties from the rental, or any other fee or charge in connection therewith, of hotel rooms intended for overnight accommodations upon the Premises, meeting rooms and similar facilities, including revenues derived from telephone, telex, facsimile and other such equipment and facilities , plus any portion of any Award made on account of a temporary Taking allocated to "Room Revenues" pursuant to Section 16.7 of this Lease. "Taking" means any acquisition of or damage to all or any portion of the Premises, or any interest therein or right accruing thereto, pursuant to or In anticipation of the exercise of the power of condemnation or eminent domain, or by reason of the temporary requisition of the use or occupancy of the Premises, or any part thereof, by any governmental or quasi -governmental authority, civil or military, or any other agency empowered by law to take property in the State of California under the power of eminent domain. "Tenant" means the person or entity owning the Leasehold estate created by this Lease. "Tenant's Investment" has the meaning ascribed to it In Section 2.4. "Tenant Parties" means Tenant and any and all of Its Affiliates. "Temporary Taking" means a Taking for a temporary period or use of the Premises or the Project or any portion thereof. "Term" has the meaning ascribed to it In Section 2.2. N81.21513G.V18 7 8/0&98 "Total Taldng" means a Taking of all of the Premises and the Project other than for a temporary purpose; or a Taking of so much of the Premises or the Project as to render the balance of the Premises unsuitable for the construction or operation of a Project of the type and in the manner set forth in this Lease. ARTICLE 11 GRANT OF LEASE AND TERM 2.1 Lease. In consideration of the covenants to be observed and performed by the parties hereunder. Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, the Premises. Landlord reserves all oil, oil rights, gas, minerals, mineral rights, natural gas rights and other hydrocarbon substances in and under the Premises and the right to grant and transfer the same, together with all necessary and convenient rights to explore for, develop, produce and extract and take the same, subject to the express limitation that any and all operations for the exploration, development, production, extraction and taking of any such substance shall be carried on at levels below the depth of five hundred feet (5001) from the surface of the land by means of wells, derricks and other equipment from surface locations on adjoining or neighboring land so long as such activities do not Interfere with or impair the operation, business or aesthetics of the Project, and subject further to all restrictions and regulations concerning the drilling for, and production of, oil, gas, minerals, petroleum and other hydrocarbon substances specified in the Newport Beach City Charter or the Newport Beach Municipal Code. 2.2 Term. The term ("Term") of this Lease shall commence on the Commencement Date and shall expire upon the fiftieth (50th) anniversary thereof (the "Expiration Date"), unless sooner terminated as herein provided. 2.3 Quiet Possession. (a) Tenant shall be entitled to peaceably and quietly use and enjoy the Premises for the Term, without hindrance or interruption by Landlord (other than in exercise of Landlord's rights should Tenant be in breach or default hereunder) or any other person or persons claiming by, through or under Landlord. Landlord shall in no event be liable in damages or otherwise, because of the Interruption or termination of any service provided by the City (such as, water or sewer service), or a termination, Interruption or disturbance of any service attributable to any act or neglect of Tenant or its servants, agents, employees, licensees, business invitees, or any person claiming by, through or under Tenant; provided, however, Tenant's obligations hereunder, other than its obligation to pay Rent in accordance with Article V, shall be excused to the extent such interruption or termination interferes with the performance by Tenant of Its obligations hereunder. NB1.215136.V1B 10 6/06/96 0 0 (b) Tenant has satisfied Itself, by its own investigation and research, regarding all physical conditions affecting Tenant's use and enjoyment of the Premises and construction of the Project on the Premises (including soil conditions and on-site and off-site improvements which may be needed). By execution of this Lease, Tenant shall be deemed to have accepted the Premises in an "AS 18" condition. Tenant acknowledges that it has had the advice of such independent professional consultants and experts as it deems necessary in connection with Its investigation of the Premises, has (to the extent it deems necessary) independently investigated the condition of the Premises, including the soils, hydrology and seismology thereof, and the laws and regulations relating to the construction and operation of the Project on the Premises, including environmental, zoning and land use entitlement requirements and procedures, height restrictions, floor area coverage limitations, and similar matters, and has not relied upon any statement, representation or warranty of Landlord of any kind or nature in connection with its decision to execute and deliver this Lease and its agreement to perform the obligations of Tenant hereunder. In connection with the matters set forth in this Section 2.3(b), Tenant acknowledges that it (or its affiliated predecessors in interest) has been in possession and occupancy of the Premises under the Existing Lease and predecessor leases since 1948, and Tenant is fully familiar with the condition of the Premises. As between Landlord and Tenant, Tenant shall be solely responsible for any condition on the Premises which may interfere with the construction, operation or maintenance of the Project. 2.4 Ownership of Improvements. Except as hereinafter provided, Tenant shall be the owner of all improvements presently existing or hereafter constructed by Tenant upon the Premises (as the same may be altered, expanded and/or Improved from time to time), and all Furnishings, Inventories and Supplies and all other personal property located on the Premises or in the Project (hereinafter referred to collectively as the "Tenant's Investment"). Tenant shall retain all rights to depreciation deductions and tax credits arising from its ownership of the Tenant's Investment. At any time during the Term, upon Tenant's request therefor, and within a reasonable period of time following said request, Landlord agrees to confirm, in writing, that Landlord has no present possessory interest in any part of the Tenant's Investment. Following the expiration or earlier termination of this Lease, all improvements constituting fixtures to the Premises that cannot be removed without causing damage to the Project shall automatically revert to and become the property of Landlord without compensation or payment to, or requirement of consent or act of, Tenant, and Tenant shall thereafter have no further rights thereto or interest therein, including any rights to depreciation deductions or tax credits with respect thereto. Following the expiration or any earlier termination of this Lease, Tenant shall retain Its ownership in all items of personal property comprising a portion of Tenant's Investment which may be removed without causing damage to the Project; provided, however, if Tenant fails NB1-215130.V18 11 6/08/08 AG to remove the same within thirty (30) days following the expiration or earlier termination of this Lease, any part of Tenant's Investment remaining on the Premises after said 30 -day period had expired shall become the sole property of Landlord without compensation or payment to, or requirement of consent or act of. Tenant, and Tenant shall thereafter have no further rights thereto or interest therein. Upon the expiration or earlier termination of this Lease for any reason, Tenant shall surrender the Premises and the Project to Landlord in good condition and repair, reasonable wear and tear and acts of God excepted. Furthermore, at such time, Tenant shall surrender all keys to any and all parts of the Project to Landlord and shall inform Landlord of all combinations of locks, safes and vaults, If any, in the Project or elsewhere on the Premises. Tenant agrees to execute, acknowledge and deliver to Landlord any instruments reasonably requested by Landlord to carry out the Intention of this Section 2.4. Tenant's obligations and Landlord's rights under this Section 2.4 shall survive the expiration or earlier termination of this Lease. ARTICLE III CONSTRUCTION AND IMPROVEMENT OF PREMISES 3.1 Improvements to be Erected by Tenant. Tenant shall, at its sole cost and expense, use its best efforts to design, construct, furnish and equip the Project (including parking facilities adequate to fully comply with all applicable ordinances, resolutions and conditions of approval of the Project) upon the Premises as herein provided. Construction of the improvements, consisting of issuance of one or more building permits for construction of the Project (including demolition of existing Improvements), shall commence on or before ninety (90) days following commencement of the Term (as said date is extended by events of Force Ma/cure). Tenant shall, at its sole cost and expense, use its best efforts to construct and complete the Project, which shall include all improvements and amenities as are contemplated in the Final Plans approved by Landlord under the Option Agreement and as otherwise required by the terms of this Lease or by applicable law so that completion is achieved on or before three (3) years following the date of commencement of the Term (as said date is extended by events of Force Majeure). 3.2 Coastal Approval and Entitlements. Tenant represents that it has obtained a Coastal Development Permit (as such term is used in the certified land use plan encompassing the Premises and approved by the California Coastal Commission) for the Project, and to the extent not already obtained, Tenant shall, at its sole cost and expense, apply for, process and use its best efforts to obtain all other approvals (including environmental approvals) and use permits or variances required under applicable law for the construction and/or operation of the Project. 3.3 Compliance With Laws. Subject to its right to contest as contained In Section 15.3 below, Tenant shall cause the construction of the Project, and any subsequent NBI.215136.V1B 12. Bl "6 !i 0 0 improvements on the Premises, to be completed in substantial accordance with all applicable laws, ordinances, resolutions, plans, permits, conditions, rules, regulations and orders of all governmental authorities having Jurisdiction over the Premises, construction of improvements thereon, or the conduct of Tenant's business thereat. Upon request of Landlord, Tenant shall furnish Landlord with copies of any or all certificates and approvals relating to any work or installation done by Tenant that may be required by any governmental authority or by all applicable underwriters and insurers. 3.4 Lien Free Completion. Tenant agrees that the Project shall be constructed free of liens for labor and materials, using quality materials and workmanship, and substantially in accordance with the Final Plans and all applicable underwriters and Insurance requirements, zoning regulations, building codes and requirements of any governmental authority having jurisdiction over the Premises. Tenant shall promptly discharge any such lien or claim of lien made or filed against the Premises; provided, however, that Tenant shall have the right to contest In good faith and with reasonable diligence the amount or validity of any such lien or claim of lien so long as Tenant shall provide Landlord, at Tenant's sole cost and expense, with such bond or other security as Landlord may reasonably require to Insure payment thereof and prevent any sale, foreclosure or forfeiture of all or any part of the Premises. Tenant shall notify Landlord in writing of any and all liens and claims of lien made or filed against the Premises within fifteen (15) days after Tenant becomes aware of the filing thereof. Tenant shall Immediately satisfy any final judgment or decree and cause the lien to be discharged. Any judgment shall be deemed final for the purposes of this provision unless enforcement thereof is stayed pending appeal. If Tenant falls promptly to discharge liens or claims of lien, or to contest such liens or claims of lien and in connection therewith provide the security required under this Section 3.4 or, after having complied with the provisions of this Section 3.4, there is an adverse order, judgment, decree or award with respect to Tenant or Landlord and Tenant falls to satisfy the final judgment, order, decree or award and cause the lien to be discharged, Landlord, following reasonable written notice to Tenant, may, in its sole discretion, procure the release and discharge of any such lien and any judgment or decree thereon and, in furtherance thereof, may in its reasonable discretion, effect any settlement or compromise. All amounts reasonably expended by Landlord In connection with the provisions of this Section 3.4 (including attorneys' fees, charges and expenses), together with interest thereon at the Default Rate from the date of expenditures to the date of reimbursement, shall be payable by Tenant Immediately following demand therefor. 3.5 As -Built Drawings. Upon completion of the work, Tenant shall furnish Landlord with a set of drawings and specifications for all completed construction hereafter occurring on the Premises which accurately reflect the nature and extent of all work done on or to the Premises after the date hereof, and, where such drawings and specifications are prepared in connection with any work or improvement N81 -215136.V18 13 6/08 Jk 0 0 contemplated in this Lease, any existing improvements on the Premises all marked to show such construction "as built." 3.6 Tenant's Architects and Contractors. All improvements and landscaping (other than minor seasonal plantings) on the Premises and any subsequent repairs, alterations, additions or improvements to any of the foregoing shall be designed, selected or constructed, as applicable, by qualified and licensed (where required) architectural, design, engineering and construction firms selected by Tenant. 3.7 Costs of Construction. Tenant shall bear all costs and expenses associated with the design, construction, furnishing, equipping and supplying of the Project, which costs and expenses Include without limitation: (i) utility hook-up and connection fees and all distribution facilities, conduits, pipelines and cables required in connection with the development of the Project, (ii) all design, engineering, financing and construction costs, and (iii) all necessary use permits or variances, and all grading, building and like permits required to construct and operate the Project, including the Coastal Development Permit and any fees assessed on the Premises by any governmental or quasi -governmental agency or authority in connection with any regional transportation or other public Improvements, and school district taxes, development fees and assessments. 3.8 Renovation and Maintenance of Hotel. Subject to Sections 10.4 and 10.5 hereof, Tenant shall maintain the hotel component of the Project, and each part thereof, and the furniture, fixtures, appliances and personal property used in connection therewith, in a condition of repair and maintenance at least comparable to other first class hotels in the Newport Beach area (such as, on the date hereof, the Marriott Fashion island); provided, however, that Tenant shall not be required by this Section 3.8 to make any material capital investment in the hotel component of the Project to upgrade facilities, systems and equipment which are included in comparable quality hotels designed and constructed after the date of Landlord's approval of the Final Plans as provided in the Option Agreement, but which were not customary In such other quality hotels at the time of such design approval. From time to time, but no more frequently than once in any consecutive six (6) month period, upon request of Tenant. Landlord shall provide an estoppel certificate to Tenant certifying whether, in the opinion of Landlord, the Project, and each part thereof, and the furniture, fixtures, appliances and personal property used in connection therewith, has or has not been maintained in a condition of repair and maintenance at least comparable to other first class hotels in the Newport Beach area as of the date of such certificate. Tenant shall maintain the hotel with not less than one hundred forty (140) guest rooms and all related facilities necessary or desirable to achieve the standard contemplated in this Lease, including food and beverage services, banquet, conference and meeting facilities, restaurants, sundries and gift shops, and spa and health club; provided, however, if during the Term, Tenant reasonably determines that maintenance of rasi•2151Xw6 14 6/06/96 0 0 such number of guest rooms or related facilities Is not as economically advantageous as some other permitted use, Tenant shall be entitled to reduce the number of required guest rooms or related facilities to allow for such other permitted uses so long as there is no material reduction In economic benefits accruing to Landlord or the City from the Project by reason of such change In use; provided, however, In no event may the number of hotel rooms be reduced below one hundred twenty-five (125) without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. 3.9 Renovation and Maintenance of Apartments. Tenant shall maintain the apartment component of the Project, and each rental unit therein, and the furniture, fixtures, appliances and personal property used in connection therewith, In a condition of repair and maintenance comparable to other quality apartment rentals in the Newport Beach area; provided, however, that Tenant shall not be required by this Section 3.9 to make any material capital investment In the apartment component of the Project to upgrade facilities, systems and equipment which are not included in the apartment component of the Project as of the date of Landlord's approval of the Final Plans as provided in the Option Agreement. Tenant shall, from time to time as each apartment unit Is leased, but not less frequently than once every five (5) years during the Term hereof, renovate each apartment unit to maintain such quality by cleaning and/or replacing the carpeting, floor coverings and/or window coverings as reasonably required and painting the unit interior walls. Subject to Sections 10.4 and 10.5, Tenant shall maintain and operate the Terrace Apartment Building as apartment units available for rental at all times during the Term in a manner which will not result in termination of the authorization of such use as an apartment complex under Paragraph 8(b) of Assembly Bill No. 3139 effective September 22, 1994. 3.10 Maintenance of Marina Operations. Tenant shall maintain the marina facilities, and the fixtures, appliances and personal property used in connection therewith, in a condition of repair and maintenance at least comparable to comparable quality of marina operations in the Newport harbor throughout the Term; provided, however, that Tenant shall not be required by this Section 3.10 to make any material capital investment In the marina component of the Project to upgrade facilities, systems and equipment which are included in the existing marina as of the date of Landlord's approval of the Final Plans as provided In the Option Agreement. Tenant shall maintain and operate not less than one hundred forty (140) slips suitable for boats of up to one hundred (100) feet in length for rental throughout the Term to the general public who are members of the Balboa Bay Club, and shall make such slips available for rental at comparable rental rates for comparably sized and maintained marina facilities in the Newport Harbor from time to time during the Term. Tenant shall not enter Into rental or leasing agreements for boat slips (I) for a term of longer than one (1) year unless such. agreements have provision for adjustment of rent to full fair market rental value not less often than each year, or (11) with any person for a discounted or reduced NB1.2151 XV18 15 =M- -V.1 rental below comparable rental rates of the slip based upon membership in any club, facility or business arrangement between Tenant, or any affiliated entity, and a renter of a slip. 3.11 Landlord's Cooperation. Landlord shall cooperate with Tenant in all of Tenant's efforts to construct, operate and maintain the Project as set forth In this Article III, and shall execute such applications and other undertakings as shall be reasonably required in its capacity as the owner of the Premises to enable Tenant to file for and obtain all building permits, licenses, variances, permissions and consents necessary to construct, operate and maintain the Project and otherwise to perform its activities under this Article III; provided, however, that nothing herein shall imply any obligation inconsistent with or result in any diminution of Landlord's legislative, quasi-judicial or administrative rights, obligations and prerogatives as a municipal public agency, including Landlord's rights, obligations and prerogatives in connection with reviewing and approving any license, permit or entitlement for the development, construction or use of the Premises. ARTICLE IV REPRESENTATIONS AND WARRANTIES 4.1 Landlord's Representations and Warranties. As a material inducement to Tenant to enter into this Lease, Landlord represents and warrants the following as of the date hereof, (a) Power and Authority. That it is a municipal corporation duly organized, validly existing and in good standing under the laws of the State of California; that it has all necessary power and authority to enter into this Lease and to carry out the transactions contemplated herein; and that the execution and delivery hereof and the performance by Landlord of Landlord's obligations hereunder will not violate or constitute an event of default under the terms and provisions of any agreement, ordinance, regulation, lease, law or court order to which Landlord is a party or by which Landlord is bound the remedy for which default would have a material adverse effect on Landlord's ability to perform its obligations hereunder. (b) Authorization; Valid Obligation. That all actions required to be taken by or on behalf of Landlord to authorize it to execute, deliver and perform its obligations under this Lease have been taken, and that this Lease is a valid and binding obligation of Landlord enforceable in accordance with its terms, except as the same may be affected by bankruptcy, insolvency, moratorium or similar laws, or by legal or equitable principles relating to or limiting the rights of contracting parties generally. NBI.213136.V1 B 16 6/0&96 ar (c) Executing Parties. That the persons executing this Lease on behalf of Landlord have full power and authority to bind Landlord to the terms hereof. (d) Possessory Rights. Landlord has no knowledge that anyone has any right to occupy, possess or use the Premises, or any part thereof, other than Tenant under the Existing Lease, rights imposed as a condition of approval of the construction or operation of the Project by governmental authorities having jurisdiction over the Premises, rights derived as a matter of law by virtue of the Premises being tidelands, and any person deriving such rights by agreement or conduct of Tenant. (e) Actions, Suits or Proceedings. Landlord has no knowledge of any actions, suits or proceedings pending or threatened before any commission, board, bureau, agency instrumentality, arbitrator(s), court or tribunal that would affect the Premises or the right of Tenant to occupy or utilize same. 4.2 Tenant's Representations and Warranties. As a material inducement to Landlord to enter into this Lease, Tenant represents and warrants the following as of the date hereof: (a) Power and Authority. That it is a corporation duly organized, validly existing and in good standing under the laws of the State of New York; that it is qualified to conduct business in the State of California; that It has all necessary power and authority to enter Into this Lease and to carry out the transactions contemplated herein; and that the execution and delivery of this Lease and the performance by Tenant of its obligations hereunder will not violate or constitute an event of default under the terms and provisions of any agreement, ordinance, regulation, law or court order to which Tenant is a party or by which Tenant is bound. (b) Authorization; Valid Obligations. That all actions required to be taken by or on behalf of Tenant to authorize it to execute, deliver and perform its obligations under this Lease have been taken, and that this Lease is a valid and binding obligation of Tenant enforceable in accordance with its terms, except as the same may be affected by bankruptcy, insolvency, moratorium or similar laws, or by legal or equitable principles relating to or limiting the rights of contracting parties generally. (c) Executing Parties. That the persons executing this Lease on behalf of Tenant have full power and authority to bind Tenant to the terms hereof. NB1-215136.V1 B 17 G(OW6 s ARTICLE V RENT 5.1 Rent. Subject to the limitations of Section 5.3 below, commencing upon the Commencement Date. Tenant shall pay to Landlord the greater of (I) annual rent in the sum of One Million One Hundred Twenty -Five Thousand Dollars ($1,125,000) (the "Base Rent") as adjusted pursuant to Section 5.4 below, or (it) the percentage rent set forth in Section 5.2 (the "Percentage Rent"). Base Rent and Percentage Rent are hereinafter referred to as "Rent." 5.2 Percentage Rent. Percentage Rent shall equal the total of the percentages set forth below of the corresponding categories of Gross Revenues on an annual basis from each transaction, sale or activity of Tenant on or from the Premises: CATEGORY PERCENTAGE RENT Dues Revenues 6% Apartment Revenues 16.5% Marina Revenues 31% Storage Revenues 20% Charter Commission Revenues 2010 Charter Revenues 6% Room Revenues 5% Beverage Revenues 5% Food Revenues 3% Retail Revenues 5% Miscellaneous Revenues 10% To the extent that Gross Revenues include proceeds of business interruption or rental loss insurance which are based upon or in compensation for Percentage Rent payable under this Lease, the Percentage Rent owed for any of the foregoing activities for which such proceeds of business Interruption or rental loss insurance were received during the period affected by such Insurance claim shall be the greater of (1) the amount of such proceeds of business interruption or rental loss N61 -215136.V18 18 6/06196 7< 0 Insurance relating to Percentage Rent payable to Landlord hereunder, or (fl) the amount of Percentage Rent calculated as set forth above after deduction from Gross Revenues of the amount of such proceeds of business interruption or rental loss Insurance relating to Percentage Rent. 5.3 Base Rent During Construction. Notwithstanding Section 5.1 above, from and after the Commencement Date until the earlier of (i) thirty (30) months following the Commencement Date, or (11) such time as certificates of occupancy have been issued with respect to the renovation of the hotel portion of the Project as contemplated in this Lease, the Base Rent payable hereunder shall be limited to Forty -Six Thousand Eight Hundred Thirty -Three and 34/100 Dollars ($46,833.34) per month; provided, however, Tenant shall remain obligated to pay Percentage Rent to the extent it exceeds such Base Rent during such period. 5.4 Periodic Adjustments of Base Rent. Upon the first day of the ninety-seventh (971°) month following the Commencement Date, and the first day of every sixty- one months thereafter (respectively, an "Adjustment Date"), Base Rent shall be adjusted to a sum equal to seventy-five percent (75%) of the average annual total of Rent payable during the immediately preceding five (5) years. Following receipt of the report of Gross Revenues and Percentage Rent for the year Immediately preceding an Adjustment Date, Landlord shall calculate the adjustment in Base Rent, if any, and shall notify Tenant in writing of such adjustment. Subject to Tenant's right to contest, in good faith, Landlord's calculation of the adjustment to Base Rent, any such adjustment shall be effective as of the relevant Adjustment Date, and Tenant shall pay any accrued and unpaid Base Rent from the Adjustment Date to the date of receipt of Landlord's notice of adjustment in Base Rent no later than fifteen (15) days following receipt of Landlord's notice of adjustment in Base Rent. 5.5 Fair Market Adjustment of Base Rent. Upon the twenty-sixth (26th) anniversary of the Commencement Date (the "Market Adjustment Date"), the Base Rent shall be increased or decreased, as the case may be, based upon the determination of the fair market rental value of the Premises in the manner set forth in Section 19.19. For purposes of appraising the fair market rental value of the Premises, the appraisers shall determine such value including payment of minimum rent and percentage rent in excess thereof in the categories set forth in Section 5.2 above. The Base Rent shall be adjusted to equal seventy-five percent (75%) of the full fair market rental value of the Premises as so determined. In the event the adjusted Base Rent determined pursuant to this Section 5.5 Is one hundred twenty percent (120%) or more of the average annual Base Rent payable during the five (5) Fiscal Years preceding the Market Adjustment Date, the amount by which the new Base Rent exceeds one hundred twenty percent (120%) or more of the average annual Base Rent payable during the five (5) Fiscal Years preceding the Market Adjustment Date shall be added to Base Rent at the rate of twenty-five NB1.215136.V1 B 19 6/66/96 0 0 percent (25%) thereof per year in the ensuing four (4) Fiscal Years. For example, if the amount by which the new Base Rent exceeds one hundred twenty percent (120%) or more of the average annual Base Rent payable during the preceding five (5) Fiscal Years is $4,000, then Base Rent shall be increased by $1,000 In each of the ensuing four (4) Fiscal Years. Landlord and Tenant agree to use the appraisal methodology utilized by Landlord's appraisal conducted by William Hansen & Associates, dated November 4, 1994, in the computation of the market rent upon the commencement of this Lease. 5.6 Payment of Rent. Base Rent shall be payable on the first (Ist) day of each Accounting Period during the Term; provided, however, to the extent that Percentage Rent for such Accounting Period exceeds the Base Rent paid during such Accounting Period, the differential shall be payable in arrears concurrent with the next Installment of Base Rent. Any installment of Rent payable during any Accounting Period shall equal the greater of (1) Percentage Rent computed from the commencement of that particular Fiscal Year to the end of the Accounting Period for which such Rent is due, or (il) the Base Rent due from the commencement of that particular Fiscal Year to the end of the Accounting Period for which such Rent is due, in each instance less the aggregate amount of any Rent previously paid to Landlord during such Fiscal Year. 5.7 Charges for Goods and Services. Tenant agrees to charge prices for all goods, services and facilities (including boat slip rentals) offered at or provided on or from the Premises comparable with prices for such goods and services charged at other private clubs in Southern California; provided, however, (f) that for purposes hereof, the rent charged for, slips in the marina shall be adjusted, where necessary, to eliminate any discounts or reduced fees and charges at such clubs based upon payment of membership fees or other comparable arrangements, and (ii) nothing herein shall limit or impair Tenant's ability to charge less than such amounts if, in the exercise of Tenant's reasonable business judgment, such lesser amounts will stimulate revenue increases or in connection with advertising, promotions, discounts to employees, guests or charitable functions. 5.8 Reconciliation of Annual Rent. Within thirty (30) days following receipt by Landlord of the annual statement set forth in Section 5.10(b), the Percentage Rent due for such Fiscal Year shall be determined, subject to audit as set forth in Section 5.10(e), and the amount of Rent paid or payable for such Fiscal Year shall be adjusted accordingly. Landlord shall credit the amount of any Rent received from Tenant pursuant to Section 5.6 which is in excess of the amount of Rent determined to have been due and payable for such Fiscal Year, such excess to the Installments of Rent next following. Tenant shall pay, within five (5) days following such determination, but In no event later than one hundred and sixty (160) days NB7.215136.VIB 20 6ro6M 0 following the end of such Fiscal Year, the full amount of Rent determined to have been due and payable for such Fiscal Year. 5.9 Place for Payment of Rentals. All payments of Rent shall be made In lawful money of the United States of America and shall be paid to Landlord at Landlord's address as set forth in Section 19.6 or to such other parties and/or to such other address as Landlord may from time to time designate In writing to Tenant. 5.10 Records and Reports of Sales. (a) Quarterly Statement. Tenant shall provide to Landlord a statement setting forth in reasonable detail the amount of Tenant's Gross Revenues (including a breakdown among the categories set forth in Section 5.2 above) for the immediately preceding Accounting Period within twenty (20) days following the end of each Accounting Period. (b) Annual Statement. Tenant shall provide to Landlord a statement setting forth in reasonable detail the amount of Tenant's Gross Revenues for the preceding Fiscal Year within one hundred twenty (120) days following the end of each Fiscal Year. (c) Payment of Percentage Rent. Tenant shall accompany the statement of Gross Revenues for each Accounting Period and the Fiscal Year with a payment of the amount by which Percentage Rent exceeds the Base Rent paid during such Accounting Period calculated In accordance with Section 5.2 of this Lease. (d) Books and Records. Tenant shall prepare and keep full, complete, accurate and proper books, records and accounts of all business conducted by Tenant or its Affiliates from the Premises, in accordance with generally accepted accounting principles consistently applied, which shall Include equipment to record all sales at the time of the transaction. Tenant shall keep at the Premises records of Tenant's Gross Revenues for a period of not less than three (3) years after the expiration of the Fiscal Year to which such records relate and upon request shall furnish Landlord true and accurate statements thereof. Within one hundred twenty (120) days following the close of each Fiscal Year, Tenant shall deliver to Landlord an audited statement prepared by a nationally recognized independent firm of certified public accountants showing In reasonable detail, on a Fiscal Year basis, the amount of Tenant's Gross Revenues (including a breakdown among the categories set forth in Section 5.2 above) for the immediately preceding Fiscal Year. NBI.215136.WB 21 6/06M -61 0 0 (e) Audit Rights. Landlord shall have the right upon two (2) days prior notice to Tenant and during normal business hours, but not more often than one (1) time during each Fiscal Year of the Term, to audit the Tenant's statements of Gross Revenues, and supporting records and data. Within ten (10) days of receipt of such audit, Tenant shall pay Landlord the additional Rent found to be due plus interest thereon at the Lease Interest Rate if the audit discloses an understatement of annual Gross Revenues. However, if the audit discloses Rent has been overpaid by Tenant, the excess shall be applied to any amounts then due from Tenant to Landlord, and the balance, if any, shall be credited against Base Rent thereafter due from Tenant. Tenant shall pay for the reasonable cost of Landlord's audit if Landlord's audit discloses a total underpayment of Rent for any Fiscal Year which is in excess of five percent (5%). Landlord shall have the right to receive a copy of the results of any audit conducted at the request of Tenant of Tenant's statements of Gross Revenues during the Term. Promptly following the completion of any such audit, Tenant shall deliver, or cause to be delivered, to Landlord a copy of the result of such audit regardless of whether Landlord shall have made a demand therefor. (f) Annual Forecast of Operations. On or before May 1 of each year during the Term. Tenant shall provide Landlord, for informational purposes, with a forecast for the ensuing Fiscal Year of the amount of (1) Gross Revenues expected to be received by Tenant, and (il) Percentage Rental expected to be payable hereunder (by categories of Percentage Rental). On or before September 30 of each year during the Term, Tenant shall provide Landlord with a forecast for the ensuing twelve (12) month period of budgeted capital improvements, replacements, repairs and maintenance that Tenant anticipates expending during such twelve (12) month period to maintain the Project in a manner consistent with the original quality of the Project upon completion of construction in accordance with the Final Plans as required by Section 6.3. 5.11 Additional Rent. Tenant agrees to pay, as rental for the Leased Premises, within ten (10) days of Landlord's demand therefor, unless a different time for payment is expressly provided herein, all other amounts Tenant is obligated to pay Landlord under the provisions of this Lease in addition to Rent ("Additional Rent"). 5.12 No Abatement or Reduction in Rent. Except as expressly provided to the contrary elsewhere in this Lease. Tenant shall not be entitled to any abatement, set-off or reduction in Rent or Additional Rent hereunder. NBI.215136.Vi6 22 6/06M 9 9 5.13 No Partnership Created. Landlord and Tenant shall in no event be construed or held to be partners, co-owners, joint venturers or associates of one another In the conduct of Tenant's business on the Premises, or in its ownership of the Project. The relationship between Landlord and Tenant is and at all times shall remain that of lessor and lessee for all purposes. 5.14 Net Lease. The Rent set forth in this Article V herein Is based upon the assumption that Landlord will not have to pay any expenses or incur any liabilities of any kind in any way relating to, or in connection with, the Premises during the Term except for refunds, Interest, credits or other payments herein specifically set forth. Accordingly, Tenant will promptly pay all costs of every kind and description relating to or arising out of the Premises during the Term. ARTICLE M TENANT'S OBLIGATION WITH RESPECT TO MAINTAINING PREMISES 6.1 Repairs and Maintenance. Tenant shall at all times during the Term keep in good order, condition and repair the entire Premises and all Improvements and buildings located thereon, including the structural and non-structural portions of the Project, the entrances, the windows, partitions, doors, lighting and plumbing fixtures, heating, ventilation and air conditioning systems, the grounds and all landscaping, the paving and other hardscape surfaces, and all fixtures, equipment and appurtenances relating to the Premises and/or the Project, subject to reasonable wear and tear, fire and other casualty, consistent with the continued operation of a project of the type, size and quality of the Project. 6.2 Taxes and Assessments. (a) Except as otherwise expressly permitted elsewhere in this Lease, during the Term, Tenant shall pay prior to delinquency the amount of all taxes and assessments levied against, or on account of, the Premises: provided, however, that, if by law any such tax or assessment is payable or may at the option of taxpayer be paid In installments, Tenant may pay the same, together with any accrued interest payable on the unpaid balance of such tax or assessment, in installments as the same become due and before any fine, penalty, interest or cost may be added thereto for the nonpayment of any such installment and interest. Taxes and assessments shall be prorated for the final year of the Term (or earlier termination) based upon the number of days during such final year that this Lease is in effect. Notwithstanding the foregoing, in no event shall Tenant be liable for Increases in taxes or assessment, if any, attributable to a "change in ownership' of Landlord's interest In the Premises. NBI.215136NI B 23 "6" (b) Tenant shall pay, before delinquency, all taxes and assessments levied against, or on account of, all fixtures, equipment and personal property located in or upon the Premises and/or the Project. (c) Landlord and Tenant agree to consult with each other and to keep each other advised concerning any controversy or contest pertaining to the amount or validity of any tax or assessment referred to in this Section 6.2, which tax or assessment Tenant is required to pay or reimburse to Landlord under the terms of this Lease. Tenant shall have the right, at Tenant's sole cost and expense, to contest the amount or validity of any tax or assessment levied upon, imposed, assessed, or proposed to be assessed, against the Premises and/or the Project or any of the personal property therein to the extent permitted by applicable law; provided, however, Tenant shall do the following: (1) comply with all laws, orders, rules and regulations respecting such contest; (ii) give Landlord prior written notice of Tenant's intent to so contest said amount or validity; and, (iii) at Landlord's sole option, either (A) demonstrate to Landlord's reasonable satisfaction that the proceedings to be Initiated by Tenant shall conclusively operate to prevent the sale of the Premises, the Project and all personal property thereat, or any part thereof, to satisfy such tax or assessment prior to final determination of such proceedings, or (B) furnish a good and sufficient bond or surety or other assurance as requested by and reasonably satisfactory to Landlord, or (C) provide a good and sufficient undertaking as may be required or permitted by law to accomplish a stay of any such sale. Nothing in this subsection 6.2(c) shall be deemed or construed as relieving, modifying or extending Tenant's covenant to pay any such tax or assessment at the time and in the manner provided in this Section 6.2. 6.3 Capital Repairs and Replacements. If during each rolling three (3) year increment of the Term, commencing upon the third (3rd) anniversary of the completion of construction of the hotel portion of the Project, Tenant fails to expend a sum equal to at least four percent (4%) of Gross Revenues per annum during such period on repairs, replacements and renewals of Furnishing, for routine repairs and maintenance and non-structural refurbishments of the Project (including capital improvements, but excluding substantially complete replacement of long term capital Improvements, such as replacement of the roof, mechanical, electrical or similar building systems, or major portions thereof), Tenant shall deposit in a separate account (the "Reserve Account") with a commercial bank or savings and loan association approved by Landlord, or with or under the control of Tenant's Mortgagee if such Mortgagee shall so require, an amount equal to the difference between the sum actually expended by Tenant for the foregoing purposes during such period and four percent (4%) of Gross Revenues per annum N81 -215136.V18 24 0 0 during such period which Reserve Account shall be used by Tenant for the specific purpose of accumulation therein and disbursing therefrom funds to be used solely for the foregoing purposes. Tenant shall not withdraw funds from the Reserve Account in any ensuing Fiscal Year until Tenant has expended for the foregoing purposes in such Fiscal Year a sum of not less than four percent (4%) of Gross Revenues during such Fiscal Year. Nothing herein contained shall be construed as a limitation on Tenant's obligations under other provisions of this Lease to repair, maintain and replace the Furnishings or the Premises, and each portion thereof. At all times after the Reserve Account has been established, Tenant shall include in each annual forecast to be submitted to Landlord pursuant to Section 5.10(f) above a reconciliation of funds expended for the foregoing purposes, and evidence of all amounts contained in and all deposits and withdrawals from the Reserve Account during the preceding Fiscal Year. Notwithstanding anything to the contrary contained herein, Tenant shall not be obligated to make other than ordinary repairs and replacements of Furnishings during the final five (5) years of the Term and during such five (5) year period the amount that Tenant shall be required to expend or reserve under this Section 6.3 shall be reduced to two percent (2%) per annum. Upon expiration or earlier termination of this Lease, all funds required to be maintained in the Reserve Account shall be allocated first to any repairs, maintenance, replacements and renewals necessary to place the Project and Furnishings in a first class condition and any excess shall be the sole property of Tenant. ARTICLE VII USE OF PREMISES 7.1 Use of Premises. The Premises may be used solely for construction, renovation, maintenance and operation of the Project, which shall include the right to (1) operate or enter Into businesses or grant licenses, concessions or subleases covering less than ten thousand (10,000) square feet of space In the Project In the aggregate to third parties provided that the same shall be done in arm's length transactions to persons unrelated to Tenant on commercially reasonable terms, and (ii) leases or subleases of apartment units in the Project. Tenant shall be permitted to grant licenses, concessions or subleases to Affiliates on customary terms for fair market value so long as all gross revenues derived by any such Affiliate in connection with any such license, concession or sublease shall'be Included within the appropriate category of Gross Revenues hereunder. The licenses, concessions and/or subleases granted by Tenant In connection with Its operation of the Project shall only be for businesses that provide goods and/or services principally for the purpose of catering to the needs and desires of hotel guests and club members, and the businesses conducted by such licensees, concessionaires or sublessees shall be conducted in a manner consistent with the quality of services required to be offered at the Project by the terms of this Lease. NB1-215136.V1 B 25 6/66/96 2d 0 0 In no event shall Tenant engage in any activity for the exploration, production, extraction, taking or transport of any oil, oil rights, gas, minerals, mineral rights, natural gas rights and other hydrocarbon substances or minerals in and under the Premises. 7.2 Pump -Out Station. At all times during the Term, Tenant covenants and agrees to install and maintain a vessel holding tank pump -out facility In the marina area of the Premises convenient and available for use by the public, which facility shall at all times be maintained and operated In accordance with all applicable Federal, State or local laws, regulations and ordinances. 7.3 Environmental Requirements. (a) Tenant shall not use, nor permit the use of, any Hazardous Material in the construction, reconstruction or renovations of, or additions to the Project in violation of any applicable law, regulation, code or ordinance. Tenant shall, at its expense, comply, and require each of its subtenants, licensees and/or concessionaires of space in the Project or elsewhere on the Premises to comply, with all applicable laws, regulations, codes and ordinances relating to any Hazardous Material or to any Hazardous Material Activities, including obtaining and filing all applicable notices, permits, licenses and similar authorizations. (b) Tenant shall indemnify, defend, protect and hold Landlord, its City Council, boards, commissions, agents, servants and employees, harmless from and against any and all liability, claims, actions and out-of-pocket costs or expenses of any kind or nature, including damage to any property and injury (including death) to any person (collectively, "Claims"), arising directly or Indirectly from any Hazardous Material Activity of, Tenant or any of Tenant's agents, employees, independent contractors, Invitees, licensees, guests, subcontractors, and Affiliates during the Term; provided, however, that Tenant shall have no liability under this Section 7.3(b) for any portion of any Claim which arises out of the negligence or willful misconduct of any party indemnified under this Section 7.3(b). The foregoing indemnity shall include all costs and expenses of removal, remediation of any kind and disposal of any such Hazardous Material, and all reasonable consultants' fees, attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities incurred by any indemnified party or their counsel from the first notice that any Claim is to be made or may be made. The obligation of Tenant under this Section 7.3(b) shall survive the expiration or earlier termination of the Term. NBl•215136.vta 26 6/0M6 0 0 ARTICLE VIII CONDUCT OF BUSINESS BY TENANT 8.1 Standards of Operation. Tenant shall continuously (except for reasonable interruption during repairs, maintenance or renovations and during any delay caused by an event of Force Majeure) during the Term, diligently operate, or cause to be operated, the Project in a first-class manner and as otherwise required by this Lease. Tenant shall stock and maintain adequate working capital and adequate inventories of food, beverages, operating equipment and supplies. 8.2 Management. Tenant agrees that at all times during the Term, the hotel and restaurant portions of the Project shall be managed and operated by Tenant, an Affiliate of Tenant or a Qualified Manager. It shall not be deemed a default by Tenant under the Lease if at any time during the Term it shall be determined that the then manager of the hotel and/or restaurant portions of the Project is not a Qualified Manager so long as the applicable management agreement or employment contract shall give Tenant the right to terminate said agreement and Tenant shall promptly take all reasonable steps to terminate said agreement and remove said manager from the Premises. 8.3 Competition by Tenant. Beginning on the Commencement Date and continuing for a period of five (5) years following substantial completion of the construction and renovation of the Project, as contemplated in the Final Plans approved by Landlord under the Option Agreement, Tenant agrees for itself and Its Affiliates that Tenant and its Affiliates shall not own, lease, manage or operate, or participate in the ownership, lease, operation or management of, Including any ownership interest in any partnership, joint venture or other equity participation, any business venture or operation similar to the Project, or any component or business conducted within or as part of the Project, located on Newport Harbor (that is, its nearest boundary Is within fifteen hundred (1,500) feet of the waterfront). It is expressly acknowledged and agreed that Landlord is entering into this Lease in reliance upon this covenant, and the rental payable to Landlord hereunder would be adversely affected by a violation of this covenant by Tenant, and Landlord would not enter into this Lease in the absence of such a covenant. The foregoing restriction shall not apply to (i) any Mortgagee who shall have acquired Tenant's leasehold estate hereunder pursuant to a judicial or non -judicial foreclosure of its Mortgage or a deed or other conveyance in lieu of such foreclosure, or (li) any entity which shall be an Institutional investor with a diversi- fied Investment portfolio containing projects operated under three (3) or more trade names and under management agreements with three (3) or more unaffiliated national chain management companies. The foregoing prohibitions on ownership shall not be deemed to apply to ownership of less than a Controlling Interest in any publicly traded corporation, or ownership of hotels in a diversified NB1-215136.ViB 27 0 0 investment portfolio of insurance companies, pension funds or similar institutional investors containing hotels operated under three (3) or more trade names with management contracts with three (3) or more unrelated national hotel chain management companies. The restrictions set forth In this Section 8.3 shall not be deemed to apply to any operations of Tenant or its Affiliates (or any successor thereto) substantially similar to the Project that are owned, leased or operated by Tenant or its Affiliates (or any successor thereto) as of the date of this Lease or in which Tenant or any Affiliate (or any successor thereto) participates in the ownership, lease or operation as of the Commencement Date. 8.4 Use of Name. At all times during the Term, the Project shall be operated utilizing the words "Balboa Bay" in its name; provided, however, any Qualified Manager may operate the Project under its trade name in conjunction with the foregoing words. ARTICLE IX ALTERATIONS, FIXTURES AND SIGNS 9.1 Tenant's Right to Make Alterations. Tenant shall have the right, at any time and from time to time, to make any repair, alteration or addition which Tenant deems advisable to the improvements constructed upon the Premises by Tenant; provided, however, that all such repairs, alterations or additions to the Project shall be consistent with the Premises being used for the purposes permitted by this Lease and be of the type and quality required by this Lease, shall be at least equal to the quality of the design and construction of the Project contemplated in the Final Plans. 9.2 Prohibition Against Liens. Tenant shall not create nor permit to be created or to remain, any lien, encumbrance or charge (whether levied on account of any mechanic's, laborer's or materialmen's lien or any conditional sale, title retention Lease or chattel mortgage) against the Premises or the Project, or any part thereof or Interest therein, except for equipment leases, title retention agreements and similar instruments in connection with financing of the purchase or lease of Furnishings. Subject to Tenant's right to contest such liens as set forth in this Lease, if any mechanic's, laborer's or materialmen's lien shall at any time be filed against the Premises and/or the Project, or any part thereof or Interest therein, Tenant shall with all due diligence cause the same to be discharged of record by payment, bonding in accordance with applicable law, or transfer of such lien to other security pursuant to applicable law. 9.3 Signs. Tenant will not place or suffer to be placed or maintained on the exterior of any improvements or on the Premises any signs, logos or advertising unless such signs, logos or advertising are consistent with the signage program outlined NBi •215136.V1 B 28 6/0"6 z4 C' • on Exhibit C attached hereto and otherwise conform to the signage regulations of the City and the Coastal Commission, as applicable. ARTICLE X INSURANCE, INDEMNITY AND CASUALTY 10.1 Insurance. Tenant shall maintain at its sole cost and expense during the Term, unless otherwise specified, the following types of insurance under conditions and In at least the amounts and forms specified below: (a) Insurance Carriers; Forms of Policies. All primary insurance (as compared to excess insurance) described under this Article X shall be maintained by Tenant with insurance carriers licensed and approved to do business In California, having a general policyholders rating of not less than "A" and financial rating of not less than "VII" (or, if any Leasehold Mortgagee shall require a higher rating, such higher rating) in the most current Best's Key Rating Guide. In no event will such Insurance be terminated or otherwise allowed to lapse without replacement prior to expiration or earlier termination of this Lease. Tenant may provide the Insurance described in this Article X in whole or in part through a policy or policies covering other liabilities and properties of Tenant or its Affiliates; provided, however, that any such policy or policies shall: (a) allocate to the Project the full amount of insurance required hereunder, and (b) contain, permit or otherwise unconditionally authorize the waiver contained in Section 10.1(i) below. (b) Evidence of Insurance. As evidence of specified insurance coverage, Landlord shall receive certificates issued by Tenant's insurance carriers or authorized representatives acceptable to Landlord showing such policies in force for the specified period. Such evidence shall be delivered to Landlord prior to the Commencement Date. Each such policy shall not be subject to material alteration or cancellation without thirty (30) days' prior written notice to be delivered to Landlord. Should any policy expire or be canceled before expiration of the Lease and Tenant falls immediately to procure other insurance as specified, Landlord reserves the right to procure such insurance and to receive payment from Tenant for the cost thereof. Tenant shall also allow Landlord to Inspect such evidence of Insurance Tenant obtains from its contractors. (c) Damages. Nothing contained in these insurance requirements is to be construed as limiting the type, quality or quantity of insurance Tenant may maintain or the extent of Tenant's responsibility for payment of damages resulting from its operations under this Lease. NB1-215138.18 29 sro 6 7LI (d) Workers' Compensation Insurance. Tenant shall maintain full Workers' Compensation Insurance for all persons whom it employs in accordance with the requirements of the most current and applicable State Workers' Compensation Insurance Laws in effect. (e) Comprehensive General Liability Insurance. Tenant shall maintain Comprehensive General Liability Insurance with a combined single limit for bodily Injury and property damage of Ten Million Dollars ($10.000,000)(which amount shall be subject to periodic adjustment in accordance with subsection (1) below) covering Operations, Independent Contractors, Products and Completed Operations, Contractual Liability specifically covering the indemnifications of Landlord contained in this Lease, Broad Form Property Damage, Severability of Interest or Cross Liability clauses, Personal Injury, Liquor Law Liability, and Explosion, Collapse and Underground Hazards (X,C,U). In the event Liquor Law Liability insurance shall become commercially unavailable at reasonable rates and terms In the amounts required above, Tenant shall be permitted to obtain such lower limit as then may be commercially available at reasonable rates and terms in the commercial insurance marketplace, provided that, in no event, may Tenant be permitted to obtain or maintain Liquor Law Liability insurance with a limit of coverage lower than Five Million Dollars ($5,000,000)(which amount shall be subject to periodic ad- justment in accordance with subsection (1) below). The limits of liability of the insurance coverage specified in this paragraph may be provided by any combination of primary and excess liability Insurance policies. (f) Automobile Liability Insurance. Tenant shall maintain owned, hired and non -owned automobile liability insurance covering all use of all automobiles, trucks and other motor vehicles utilized by Tenant In connection with the Premises with a combined single limit for bodily Injury and property damage of Five Million Dollars ($5,000,000)(which amount shall be subject to periodic adjustment in accordance with subsection (1) below). (g) Property Insurance -Construction. During construction of any improvements on the Premises, Tenant shall maintain builder's risk Insurance against "all risk" of physical loss, including the perils of flood, collapse and transit, with commercially reasonable deductibles, covering the total cost of work performed, equipment, supplies and materials furnished on a replacement cost basis. Tenant shall be permitted to obtain and maintain the flood insurance required hereunder in such amounts and forms as are available, from time to time, under the National Flood Insurance Program. NBI.215136.V18 30 6/86/86 0 0 (h) Property Insurance -Operations. Upon completion of construction of the Project but In no event prior to the time that the insurance required under Section 10.1(g) above ceases, Tenant shall obtain Insurance on the Project and shall maintain insurance continuously during the Term, against "all risk" perils of physical loss and "Boiler and Machinery' perils, including fire, lightning, riot and civil commotion, vandalism and malicious mischief, and insurance against loss or damage from explosion of boilers, generators, transformers, heating apparatus and air conditioning systems and against such other risks or hazards as may customarily be insured against for projects in Southern California of the type, size and quality of the Project. Such insurance shall be in amounts not less than ninety percent (90%) of the then full replacement cost of the Project without deduction for depreciation, and otherwise sufficient to satisfy the requirements of any Mortgagee. Such policies of insurance shall contain the "Replacement Cost Endorsement." Such full replacement cost shall pertain to the Project and Furnishings and be determined not less often than each two (2) years during the Term. (I) Waiver of Subrogation. Each policy of Insurance procured pursuant to this Article X shall contain a waiver by the insurer of the right of subrogation against either party hereto for negligence of such party. To the extent such insurance is not impaired thereby, Landlord and Tenant each hereby waives any and all rights of recovery against the other, and against Its shareholders, officers, directors, employees, subsidiaries, partners, servants, agents and representatives, for loss or damage arising from any cause Insured against under the form of insurance policies required to be carried pursuant to this Article X or under any other policy of insurance carried by either Landlord or Tenant. Tenant and Landlord each agrees to use reasonable efforts to obtain its liability Insurance carriers' permission as to such waiver of subrogation. (j) Compliance. Tenant shall at all times use diligent efforts to observe and comply with the requirements of all policies of insurance in force with respect to the Premises or the Project, or any part thereof, and Tenant shall so perform and satisfy the requirements of the companies writing such policies if it Is commercially reasonable to do so. Tenant shall, if any subtenant, licensee, concessionaire or other user of any portion of the Premises or Project engages in any activity in violation of the requirements of all policies of insurance In force with respect to the Premises or the Project, or any part thereof, take steps, immediately upon becoming aware of such activity, to remedy or prevent the same, as the case may be. NBt-215136Ni6 31 6/06196 0 0 (k) Additional Insured. Landlord shall be included as an additional named Insured under the coverage specified in Sections 10.1(e) and (1) above. The Insurance required under Sections 10.1(e) and (f) shall be primary and any other Insurance maintained by any such additional insured shall be non- contributing with said Insurance required hereunder. Landlord shall be Included as additional named Insured as its interest appears in regard to Insurance described in Sections 10.1(g) and (h). (1) Index. Each sum which, by the terms of this Article X, is subject to periodic adjustment In accordance with this subsection (1) shall be in- creased on each seven (7) year anniversary of the Commencement Date during the Term by the percentage of any increase for the preceding year in the Consumer Price Index for All Urban Consumers, Los Angeles - Anaheim -Riverside, All Items (1982-84 Base), published by the Bureau of Labor Statistics, Department of Labor. The successor or most nearly com- parable index published by some other branch or department of the United States Government shall be used if said Bureau shall cease to publish the Consumer Price Index. 10.2 Indemnification. (a) To the fullest extent permitted by law, Tenant hereby agrees to defend, indemnify, protect and hold Landlord harmless from and against any and all liability, claims, damage, penalties, actions, demands or expenses of any kind or nature, including damage to any property and injury (including death) to any person (collectively. "Claims"). arising from Tenant's use or occupation of the Premises or the Project, or from any activity, work or things done, permitted or suffered by Tenant or any omission of Tenant on or about the Premises or the Project, or from any litigation concerning any of the foregoing in which Landlord is made a party defendant. Tenant shall not be required hereunder to defend, indemnify or hold Landlord or any other person or entity indemnified under this Section 10.2(a) harmless from or against any of the aforementioned Claims to the extent such Claims arise out of the negligence or willful misconduct of Landlord or any other person or entity Indemnified hereunder. This obligation to indemnify shall include reasonable attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities incurred by Landlord or its counsel from the first notice that any Claim is to be made or may be made. To the fullest extent permitted by law, Landlord, in its capacity of Landlord hereunder but not in its municipal capacity, hereby agrees to defend, Indemnify, protect and hold Tenant harmless from and against any and all Claims to the extent such Claims arise out of the negligence or willful misconduct of Landlord, in its capacity of Landlord hereunder but not in its NBI.215136.V18 32 ?1) 0 • municipal capacity, or any other person or entity indemnified by Tenant under the first sentence of this Section 10.2(a). This obligation to indemnify shall also include reasonable attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities Incurred by Tenant or its counsel from the first notice that any such Claim is to be made or may be made. (b) Any sums paid by an indemnified party, with interest at the Lease Interest Rate, costs and damages, shall be due from and paid by the indemnifying party within thirty (30) days of demand therefor. Upon receiving knowledge of any Claim that an Indemnified party believes is covered by this Indemnity, such indemnified party shall give the indemnifying party notice of the matter and an opportunity to defend it, at the indemnifying party's sole cost and expense, with legal counsel reasonably satisfactory to such indemnified party. The indemnified party may also require the indemnifying party to so defend the matter. So long as the Indemnifying party shall be defending any such Claim, the indemnified party shall not settle such claim without the consent of the indemnifying party. (c) Effective upon the Commencement Date, Tenant shall obtain and maintain during the Term, combined rental income and/or business interruption and extra expense insurance against loss of Tenant's income from the Project for a period of twelve (12) months due to the perils covered by the insurance referred to In Section 10.1(h) above, in an amount sufficient to cover the Rent payable under the terms of this Lease. If the improvements located on the Premises shall be destroyed or damaged resulting in any reduction in Income received by Tenant from the Project, the proceeds of such rental income and/or business Interruption Insurance shall be utilized by Tenant, subject to the rights of a Mortgagee, in payment of such Rent and other charges hereunder until such time as the improvements so damaged or destroyed have been fully restored and placed in full operation. (d) Notwithstanding Section 10.2(b), Tenant shall accept any tender of defense by Landlord pursuant to the terms of Section 10.2(b) (unless the complaining party alleges facts that reasonably indicate active negligence or willful misconduct by the City or its employees) and Tenant shall protect and hold Landlord harmless from and against the subject Claim and defend Landlord as required under Section 10.2(b); provided, however, that Tenant shall not be liable for any such Claim to the extent and in proportion that such Claim is finally determined by a court of competent jurisdiction (or in a negotiated settlement agreed to by Landlord) to be attributable to the negligence or willful misconduct of Landlord. NBt •215136.V1 B 33 6M"6 0 0 10.3 Settlement of Insurance Claims. Subject to the rights of Tenant's Mortgagees, if all or any part of the Project shall be damaged or destroyed by an insured peril or otherwise, Tenant shall have the exclusive right to negotiate and accept any proposed settlement, adjustment or compromise of any claim; provided, however, subject to the rights of Tenant's Mortgagees, Landlord is hereby author- ized and empowered by Tenant, at Landlord's option and in its sole discretion, to settle, adjust or comprise any and all claims if Tenant elects to terminate under Sections 10.4 or 10.5 below. 10.4 Casualty. Except as provided in Section 10.5 below, Tenant shall promptly cause the Project or the Premises, or any part thereof, which is damaged or destroyed, whether or not required to be insured against under this Article X, to be repaired and restored to its original condition (subject to changes necessary to comply with then existing laws applicable thereto and any changes in design approved by Landlord), at Tenant's sole cost and expense. To the extent the insurance proceeds are insufficient to cover the cost of such repair and restoration, Tenant shall make up the deficiency out of Tenant's own funds. Subject to events of Force Majeure, such repair and restoration shall be commenced in good faith and with reasonable diligence within a reasonable period of time following the casualty and shall be completed with due diligence. Notwithstanding the foregoing, in the event the cost of such repair and restoration exceeds the sum of (1) the amount of insurance proceeds available to Tenant plus (ii) the amount of the deductible by an amount which Tenant reasonably determines renders reconstruction of the Project economically not feasible, Tenant shall have the option to terminate this Lease and surrender possession of the Premises to Landlord. Subject to the rights of Mortgagees, in the event of such a termination, Tenant shall pay to Landlord the amount of the deductible and assign to Landlord any and all rights Tenant may have in and to the insurance proceeds on account of such damage or destruction. 10.5 Casualty Late in Term. If the Project or any part thereof is damaged or destroyed at any time following the fortieth (40th) year of the Term and the costs of restoration and repair are estimated to exceed thirty percent (30%) of the then full replacement cost of the Project and Tenant elects not to repair or restore said damage or destruction, then either party shall have the right to terminate upon the other party's receipt of written notice of termination given not later than ninety (90) days following the occurrence of such damage or destruction. Subject to the rights of any Mortgagee, Landlord shall have the right to receive and retain all insurance proceeds paid or payable to Tenant on account of any damage or destruction to the Project If this Lease Is terminated by Landlord or Tenant under this Section 10.5; provided, however. that Tenant shall receive out of any such insurance proceeds the amount of actual out-of-pocket expenses incurred by Tenant In obtaining any settlement of insurance claims and the costs of restoring the Premises to a good and orderly condition and even grade, If any. NB1.215136.V16 34 &OW6 oR 0 10.6 No Abatement of Rent. Except as provided In Sections 10.4 and 10.5 above, throughout the Term, no direct or indirect destruction of or damage to the Project by fire or other casualty whatsoever, whether such damage or destruction be partial or total, shall (i) permit Tenant to surrender or terminate the Lease, or (ii) except to the extent of rent abatement insurance paid to Landlord, relieve Tenant from its obligation to pay in full the Rent and other sums and charges payable by Tenant hereunder or from any other obligation under the Lease, except as otherwise expressly set forth herein; provided, however, that if any such direct damage is caused by the negligence or willful misconduct of Landlord, Rent shall be suitably abated until such damage or destruction is repaired or restored; provided, further, however, nothing herein shall limit or restrict Landlord's right to retain rental abatement insurance proceeds. ARTICLE XI UTILITIES 11.1 Utilities. Tenant shall be solely responsible for obtaining and promptly paying all hook-up or connection fees and other charges for heat, gas, water, air conditioning, electricity, sewerage, cable television or any other utility used or consumed in or upon the Premises. Upon written request of Tenant, Landlord agrees to join in the grant of such easements and licenses upon the Premises to any supplier of utilities to the Project as necessary to construct, install, operate and maintain any facilities, conduits, transmission lines and pipelines for the Provision of utility services to the Project; provided, however, that all such conduits, transmission lines and pipelines, and all facilities and improvements associated with utility services and located upon the Premises, shall be located below grade in subterranean easements. ARTICLE XII ESTOPPEL CERTIFICATES 12.1 Estoppel Certificates. Within fifteen (15) days after each request therefor by either party, the other party agrees to deliver a certificate to any person designated by the requesting party (including a proposed Mortgagee or purchaser), or to the requesting party, certifying (if such be the case) that this Lease is in full force and effect, that, to the best of such party's knowledge at that time, there are no Events of Default by Tenant hereunder or any defaults by Landlord hereunder and that no events have occurred which, with the giving of notice or the passage of time or both, would constitute an Event or Default with respect to Tenant or a default with respect to Landlord hereunder, or stating those claimed by the responding party, and that, to the best of such party's knowledge, there are no defenses or off -sets in favor of either party hereto, or stating those claimed by the responding party, and/or certifying whether any consent or approval required NB1-215136.V18 35 J(J 0 0 under this Lease has been denied or granted by the responding party and whether any specified rights have been waived or deemed waived or expired. Any such certificate shall also contain a warranty that the person signing has the authority to execute the certificate on behalf of such party. Each such estoppel certificate shall identify the Lease and all amendments, shall specify the date to which Rent has been paid, and shall specify the then applicable Base Rent payable hereunder. If the responding party fails to execute and deliver any such certificate within the aforementioned time period, insofar as the requesting party and any person designated by the requesting party is concerned, the other party shall be conclusively deemed to have acknowledged that the certificate as submitted by the requesting party is correct. The requesting party or the person designated by the requesting party as the recipient of said certificate (including, but not limited to, a proposed Mortgagee or purchaser) may rely on the certifications made by the responding party or the certifications deemed made thereby (if such certificate is not delivered within such fifteen (15) day period). Nothing in this Section 12.1 shall be construed as reducing the period of time that any party has under the terms of this Lease to respond to a request by the other party for a consent or an approval. ARTICLE Xlll ASSIGNMENT AND SUBLEASING 13.1 Limitation on Right to Assign. Except as hereinafter set forth in this Article XI11 and in Article XIV of this Lease, Tenant will not transfer, assign or hypothecate this Lease, or its interest therein, in whole or in part, nor sublease (which term shall be deemed to include allowing anyone else to occupy) all or any part of the Premises and/or the Project, without the prior written consent of Landlord in each instance having first been obtained, which consent shall not be unreasonably withheld or delayed. The consent by Landlord to any transfer, hypothecation, assignment or subleasing shall not constitute a waiver of the necessity for such consent to any subsequent assignment, transfer, hypothecation or subleasing. This prohibition against assigning or subleasing shall be construed to include a prohibition against any sale, hypothecation, transfer of possession, or any assignment or subleasing by operation of law or otherwise. Landlord shall be deemed to be reasonable in not granting its consent if the proposed purchaser, transferee, assignee or sublessee fails to meet all of the following criteria: (a) the proposed purchaser, transferee, assignee or sublessee, or, if the proposed purchaser, transferee, assignee or sublessee is a wholly owned subsidiary, its parent, or the constituent general partners of the proposed purchaser, transferee, assignee or sublessee shall have a net worth at least equal to the greater of (1) Four Million Dollars ($4,000,000) (increased each rive (5) years from the date of the Option Agreement by the NB1-215136.VIB 36 &0"6 0 • percentage of any Increase over such period in the Consumer Price Index for All Urban Consumers, Los Angeles -Anaheim -Riverside, All Items (1982- 84 Base), published by the Bureau of Labor Statistics, Department of La- bor), or (ii) ten percent (10%) of the fair market value of the leasehold estate created by this Lease. The successor or most nearly comparable index published by some other branch or department of the United States Government shall be used if said Bureau shall cease to publish the Consumer Price Index. For purposes of determining the fair market value of the leasehold estate created by this Lease, such value shall be conclusively determined by the purchase price to be paid by the proposed purchaser, transferee, assignee or sublessee for the interest to be acquired, as evidenced by information reasonably required by Landlord (for purposes of calculating such net worth, it shall be permissible to include as an asset of said proposed purchaser, transferee, assignee or sublessee its anticipated equity In the Project and the leasehold estate created hereby); (b) the proposed purchaser, transferee, assignee or sublessee shall either be a Qualified Manager or, if the proposed purchaser, transferee, assignee or sublessee is not a Qualified Manager, shall have entered into a binding agreement with a Qualified Manager to manage the Project, it being acknowledged herein that continued management of the Project. by a Qualified Manager is an affirmative obligation of Tenant hereunder; and (c) the proposed purchaser, transferee, assignee or sublessee (or, with respect to a transfer of a Controlling Interest under Section 13.5, the person or entity acquiring such Controlling interest) shall have a reputation for honesty, integrity and sound business practices. 13.2 Grant or Denial of Consent. Landlord shall grant or deny Its approval of, or request additional reasonable information and/or documentation with respect to, any proposed transfer, hypothecation, assignment or sublease within thirty (30) days following Landlord's receipt of notification from Tenant regarding the proposed transfer. Following a request from Landlord for additional reasonable information and/or documentation as provided herein, Landlord shall have ten (10) days from Landlord's receipt of such additional information and/or documentation in which to grant or deny its approval of the proposed transfer and/or transferee. Landlord shall be deemed to have granted Its approval if Landlord shall not request additional information and/or documentation within such thirty (30) day period and Landlord shall not notify Tenant within the time periods herein specified of Its decision either to grant or deny Its approval. From and after the effective date of an assignment by Tenant of its entire Leasehold, the assignor shall thereafter be relieved from any further liabilities or obligations under this NBI-215136.VIB 37 6/06/66 I /? • 0 Lease and Landlord shall look solely to the assignee Tenant for performance of such obligations hereunder. 13.3 Non -Application to Guest Rooms and Facilities. This Article XIII shall have no application to (1) rental of guest rooms or suites or other guest facilities within the Project, (11) rental of apartment units in the Project in the ordinary course of business for a term of not more than one year or such longer term if the rent paid by the apartment tenant adjusts annually to the fair rental value of the unit. (iii) rental of stores and shops contained within the Project, (iv) rental of boat slips in the marina in the ordinary course of business for a term of not more than one year, or (v) the granting of concessions, licenses or subleases in the normal course of operations, provided that the term of any such concession, license, rental or sublease shall not extend beyond the Term hereof. 13.4 Assignment to Affiliate. Tenant shall have the right, without Landlord's consent, to assign this Lease: (a) to a partnership or limited liability company Controlled by Tenant and in which Tenant is a general partner or member thereof and owns a legal and beneficial interest therein of not less than twenty-five percent (25%), or to a corporation Controlled by Tenant and in which Tenant owns and controls not less than twenty-five percent (25%) of all issued and outstanding stock of such corporation in every class with full and unrestricted voting rights and privileges; or (b) as security pursuant to a Mortgage; provided, however, that any assignment by Tenant under this Section 13.4 shall not relieve Tenant from liability hereunder. 13.5 Limitation on Transfer of Interest In Tenant. If Tenant is a corporation, an unincorporated association, a partnership or a joint venture, the transfer, assignment or hypothecation (except for a hypothecation in connection with a loan transaction of the type contemplated by Article XIV hereof) of a Controlling ownership Interest in such entity, whether in a single transaction or multiple transactions and whether to a single person or multiple persons, shall be deemed an assignment within the meaning of this Article XIII. Furthermore, any transaction by which Tenant undergoes a merger oe other reorganization, including a sale of all or substantially all of its assets, wherein Tenant is not the surviving corporation (or the stock holders of Tenant Immediately before the merger or reorganization do not retain Control of the surviving corporation) shall be deemed, for purposes of the foregoing, a transfer of this Lease. If Tenant is or becomes a publicly traded entity, any sale or other transfer of any outstanding stock of, or N81 -215136.V18 38 6/08198 ,; z • 0 limited partnership interests In, Tenant shall not be deemed an assignment within the meaning of this Article XIII unless said sale or other transfer is made by a person or entity owning a Controlling interest in Tenant and results In a change In the person(s) or entity(ies) having Control of Tenant. 13.6 Participation in Sale Proceeds. (a) In the event Tenant (I) sells, conveys, transfers or assigns all or any portion of its interest In this Lease and the leasehold estate created hereby (other than to a Mortgagee as security and other than a transfer to a partnership, limited liability company, joint venture or other entity pursuant to a transfer in which Tenant receives only an interest in such entity in consideration of its contribution of this Lease and the leasehold estate created hereby), (ii) subleases all or substantially all of the Premises, whether in one or more transactions, or (III) sells, transfers or conveys any interest in Tenant or its constituent shareholders, including the stock of Tenant of any kind or class, common or preferred, or the beneficial or equitable ownership interest In such stock or in Tenant (collectively, a "Sale"), at any time prior to twenty-four (24) months following the Issuance of the final certificate of occupancy for the Project, as constructed and renovated in accordance with the Final Plans, as contemplated in the Option Agreement, Tenant shall pay to Landlord an amount equal to twenty percent (20%) of the Net Proceeds (as hereinafter defined). For purposes of this Section 13.6: NB1-215138.18 (1) "Net Proceeds" shall mean the entire consideration paid or payable to or for the benefit of Tenant or Its constituent shareholders In connection with a Sale (whether in cash, note, in kind or other consideration, but excluding a transfer to a partnership, limited liability company, joint venture or other entity pursuant to a transfer in which Tenant receives only an interest in such entity in consideration of its contribution of this Lease and the leasehold estate created hereby) less (I) Project Costs (as hereinafter defined) and (ii) reasonable and customary actual out-of-pocket costs and expenses of Tenant incurred in connection with consumating such Sale (excluding any payment made to any Mortgagee or lender to release any Mortgage or other security or otherwise); (11) "Project Costs" shall mean and be limited to: (A) Five Hundred Thousand Dollars ($500,000), in reimbursement of all third party predevelopment costs incurred and paid by Tenant prior to the date of the Option Agreement; 39 nil (B) all third party costs and expenses incurred and paid by Tenant In connection with the design, development, construction and renovation of the Project from and after the date of the Option Agreement through the date of such Sale (including, without limitation, any required offsite Improvements, demolition of existing Improvements, permit and license fees and charges, signage, furniture, fixtures and equipment, architecture, design and engineering fees, insurance bonds, construction management fees, legal and other professional fees related to construction of the Project, financing fees and payments of principal on any new loan obtained by Tenant in connection with the construction and renovation of the Project, plus interest thereon at the rate of Interest charged on such loan (excluding any equity lacier, shared appreciation or other similar payment); (C) an amount equal to fifteen percent (15%) of the sum of subparagraphs (A) and (B) above; and (D) Thirty Million Dollars ($30,000,000), representing the appraised value of Tenant's interest in the Premises as of May 15, 1996. (iii) Project Costs shall exclude any operating cost or expense of the operation of the business of Tenant on the Premises other than predevelopment and development costs set forth above, any fees paid to Tenant or its Affiliates for any purpose, Rent payable under this Lease, and any other costs or expenses not specifically described in subparagraph (b) (I) through (iv) above. From time to time, but not less often than quarterly, Tenant shall provide Landlord with a certified schedule of Project Costs with reasonable supporting documentation. (iv) Net Proceeds shall not Include any proceeds of a Sale which are not distributed to or for the benefit of Tenant or its constituent shareholders, and which are used by Tenant in the payment of costs and expenses incurred in the construction and renovation of the Project. (b) The rights of Landlord under this Section 13.6 shall be subject and subordinate to the rights of any Mortgagee. NB7-215138.V18 M fC ARTICLE XIV HYPOTHECATION 14.1 Tenant's Right to Hypothecate. Subject to any restrictions set forth In this Article XIV, Tenant may, from time to time, without Landlord's consent or approval, assign, hypothecate, mortgage, pledge or alienate Tenant's leasehold estate and rights hereunder (including Tenant's interest in any subleases, licenses and concession agreements) to a lender or lenders as security for payment of any Indebtedness of Tenant Incurred In connection with the design, approval, construction, furnishing, renovation, remodeling, equipping and completion of the Project or any portion thereof as contemplated in the Final Plans and any refinancing of the existing debt secured by the Premises In connection therewith, and thereafter any refinancing of the Project and/or Tenant's leasehold estate; provided, however, that any such lender shall be an institutional lender, such as, without limitation, a bank, savings and loan or thrift institution, pension fund, real estate investment fund, publicly traded limited partnership, or Insurance company. In no event shall Tenant, or Its successors in interest, borrow any sum of money secured by a Mortgage in excess, in the aggregate, of the greater of (f) ninety percent (90%) of the appraised value of the Project and Tenant's leasehold interest hereunder as reflected in an appraisal thereof completed no earlier than one hundred eighty (180) days prior to the date such loan is funded, which appraisal shall be subject to Landlord's reasonable approval If such appraisal is not required and approved by such lender, or (if) an amount which results In Tenant having a net equity In the Project of not less than Four Million Dollars ($4,000.000) (increased each five (5) years by the percentage of any increase over such period in the Consumer Price Index for All Urban Consumers, Los Angeles - Anaheim -Riverside, All Items (1982-84 Base), published by the Bureau of Labor Statistics, Department of Labor). The successor or most nearly comparable Index published by some other branch or department of the United States Government shall be used If said Bureau shall cease to publish the Consumer Price Index; Provided, however, that in connection with any refinancing of debt secured by the Premises, the Mortgage may be in the amount of the debt being refinanced at the time of such refinancing. In calculating whether the borrowed funds exceed ninety percent (90%) of the appraised value of the Project, any participation in net revenues from operations, or proceeds of sale or refinancing granted to the Mortgagee which are fully contingent shall not be included. The limitation on borrowing set forth In the Immediately preceding sentence shall not apply to any Mortgagee who acquires the Project and the leasehold interest hereunder through foreclosure or deed -in -lieu thereof, or to a Tenant who shall have acquired the Project and the leasehold Interest hereunder from a Mortgagee (or the trustee under a Mortgage) following a foreclosure of its Mortgage or Its acceptance of a deed -in -lieu thereof. If requested by Tenant, Landlord agrees to execute its written consent to any such assignment, hypothecation, mortgage, pledge or alienation, NB1.215136.V1B 41 6/66/66 0 0 which consent shall be in form and content reasonably satisfactory to Tenant and Landlord. In no event shall Landlord have any obligation to subject Its interest in the Premises or this Lease to the lien of any mortgage given by Tenant. Any such lien whether evidenced by a mortgage, deed of trust or otherwise shall be referred to herein as a "Mortgage," and the holder or holders of or beneficiary under any Mortgage shall be referred to herein as the "Mortgagee." The Mortgagee may enforce such Mortgage and acquire title to the leasehold estate In any lawful way and, pending foreclosure of such Mortgage, the Mortgagee may elect to take possession of and operate the Premises and the Project, or any portion thereof, subject to its Mortgage, perform all obligations performable by the Mortgagee, and upon foreclosure of such Mortgage by power of sale, judicial foreclosure or otherwise, or upon acquisition of the leasehold estate by a deed, assignment or other conveyance in lieu of foreclosure, the Mortgagee may elect to sell and assign the leasehold estate hereby created without restriction (other than the requirement that the assignee of the leasehold estate satisfy the requirements of this Lease with respect to management of the Premises by a Qualified Manager). Except for payment of any delinquent rent or other payments due hereunder and obligations reasonably susceptible of cure by the Mortgagee or any such assignee, the Mortgagee or any such assignee of the leasehold estate shall not be liable to perform the obligations imposed upon Tenant by this Lease prior to the period such person or entity has ownership of said leasehold estate or possession of the Project or the Premises or any portion thereof subject to the Mortgage. 14.2 Notice to and Rights of Mortgagees. (a) When giving notice to Tenant with respect to any default hereunder, Landlord shall contemporaneously serve a copy of each such notice upon any Mortgagee who shall have given Landlord a written notice specifying Its name and address. When giving any other notice to Tenant hereunder of a type which a Mortgagee has requested to receive in writing, Landlord shall, at the same time, serve a copy thereof upon such requesting Mortgagee provided it shall have also given Landlord written notice specifying Its name and address. Any Mortgagee shall have the right, but not the obligation, to cure a default by Tenant under this Lease, and Landlord shall accept any such performance by any Mortgagees as though the same had been done or performed by Tenant. The Mortgagees shall have an additional reasonable period of time following the expiration of the applicable cure period granted Tenant hereunder to effectuate such cure. (b) In case of a monetary default by Tenant under this Lease, Landlord will take no action to obtain possession of the Premises or the Project (including possession by a receiver) or to effect a termination of this Lease by reason thereof unless Landlord shall have served a copy of such notice NBI.215136.V18 42 J7 0 0 upon any Mortgagee and the default has continued for a period of thirty (30) days beyond the date the Mortgagee shall have received said notice. In the case of any non -monetary default by Tenant under this Lease. Landlord will take no action to obtain possession of the Premises or the Project (including possession by a receiver) or to effect a termination of this Lease by reason thereof unless Landlord has served a copy of a notice of such default upon any Mortgagee and such non -monetary default continues for a period of sixty (60) days beyond the date the Mortgagee received said notice and the Mortgagee shall not have done any of the following: (i) commence to cure such default, if such default is capable of cure by the Mortgagee without the Mortgagee obtaining possession of the Premises, within said sixty (60) day period, and, thereafter, diligently proceed to cure such default; or commence to obtain possession of the Project (including possession by a receiver) within said sixty (60) day period, and, thereafter, diligently proceed to obtain said possession, and, once said possession is obtained, commence and diligently proceed to cure such default in the case of a default which Is capable of being cured only after the Mortgagee has obtained said possession; or (iii) institute foreclosure proceedings within said sixty (60) day period, and, thereafter, complete such foreclosure proceedings or otherwise acquire Tenant's interest under this Lease with reasonable and continuous diligence In the case of a default which cannot be cured in the manners set forth In (1) or (ii) above. With respect to (I1) or (iii) above, no Mortgagee shall be required to continue such possession or continue such foreclosure proceedings if the default which prompted the service of such a notice has been cured or, if for any other reason such Mortgagee elects to discontinue the same. The Mortgagee's period for taking any such action shall be extended by the period of any stay if the Mortgagee is prohibited from taking any action described in (ii) or (iii) above by order of any court having jurisdiction over any bankruptcy or similar proceedings involving Tenant. (c) If this Lease is terminated by Landlord on account of any Event of Default or Is terminated as a result of the rejection of this Lease by a trustee in a bankruptcy proceeding Involving Tenant and the Mortgagee shall have arranged to the reasonable satisfaction of Landlord to cure all then -existing defaults of Tenant under this Lease which are reasonably within the NB1.215138.V18 43 610"6 Mortgagee's ability to cure, then Landlord, within thirty (30) days after receiving a written request therefor which request shall be given within thirty (30) days after such termination, and upon payment to it of all expenses (including reasonable attorneys' fees and expenses) incident thereto, shall execute and deliver a new lease of the Premises to the Mortgagee or its nominee or to a purchaser, assignee or transferee, as the case may be, which new lease shall contain the same terms and provisions of this Lease. (d) The Mortgagee may exercise, with respect to the Premises and Project or any portion thereof, any right, power or remedy under such Leasehold Mortgage which does not materially conflict with the provisions of this Lease in the event of a default under any Leasehold Mortgage. (e) During the period that a Mortgagee shall be In possession of the Premises and/or Project and/or during the pendency of any foreclosure proceedings Instituted by a Mortgagee. the Mortgagee shall pay or cause to be paid the Rent specified in this Lease and all other charges of whatsoever nature payable by Tenant hereunder which have been accrued and are unpaid and which will thereafter accrue during said period, to the extent the amount of such charges are known or reasonably ascertainable by the Mortgagee. It shall be an Event of Default if, following the acquisition of Tenant's leasehold estate by the Mortgagee or Its designee, the Mortgagee or party acquiring title to Tenant's leasehold estate fails to commence the cure of all defaults hereunder to be cured and thereafter diligently process such cure to completion, except (1) such defaults which cannot in the exercise of reasonable diligence be cured or performed by the Mortgagee or party acquiring title to Tenant's leasehold estate, and (ii) non -monetary defaults requiring performance of some affirmative obligations susceptible of cure by Mortgagee upon obtaining possession of the Premises and which the Mortgagee confirms in writing to Landlord that the Mortgagee will require its successor to accomplish and which in all events shall be accomplished by the Mortgagee or its successor within ninety (90) days following the obtaining of possession of the Premises by Mortgagee or Its designee. Any default that cannot reasonably be cured by the Mortgagee or party acquiring title to Tenant's leasehold estate shall be, and shall be deemed to have been, waived by Landlord (but only with respect to the Mortgagee or other party acquiring said title) upon -completion of the foreclosure proceedings or acquisition of Tenant's interest in this Lease by any purchaser at the foreclosure sale or who otherwise acquires Tenant's interest In the Premises. The parties agree that the foregoing provision shall not be deemed or construed to preclude Landlord from exercising any NBI.215138.VIB 44 8108/98 0 0 of Landlord's rights or remedies against Tenant personally if and to the extent otherwise permitted under the terms of this Lease. (f) Nothing herein shall preclude Landlord from exercising any of its rights or remedies with respect to any other default by Tenant during any period of any such forbearance, subject to the rights of any Mortgagee as herein provided. (g) All notices by Landlord to a Mortgagee shall be given, in the manner provided under Section 19.6, addressed to the Mortgagee at the address last specified to Landlord by the Mortgagee, and any such notice shall be deemed to have been given and served when received by the Mortgagee. (h) The Mortgagee whose Leasehold Mortgage would be senior In priority if there were a foreclosure shall prevail if two or more Mortgagees exercise their rights hereunder, and there is a conflict which renders it impossible to comply with all such requests. Any Mortgagee who pays any rent or other sums due hereunder which relate to periods other than during its actual ownership of the leasehold estate shall be subrogated to any and all rights which may be asserted against Tenant by Landlord with respect to such period of time. (i) Landlord shall have no obligation to pay any fees and expenses of any kind or description incurred in connection with the procurement of any Leasehold Mortgages pursuant to this Article XIV. All amendments or modifications to, or any voluntary termination or cancellation of (other than as expressly permitted hereunder), this Lease shall require the written approval of any Mortgagee (if its respective Mortgage so requires). 14.3 Nonsubordination of Fee. In no event will Landlord be required to subordinate or subject its fee interest in the Premises to the lien of any Mortgagee or any other person or entity providing financing to Tenant for any purpose. All such financing shall be the sole responsibility of Tenant. 14.4 Equipment Financing. Landlord understands that Tenant may lease and/or purchase with purchase money financing certain of the Furnishings which may be installed In or used in connection with the Project from time to time during the Term. Landlord hereby agrees, upon written request of Tenant, to release, waive or subordinate Its landlord's lien to any such equipment leases, retained title contracts, security interest or other forms of purchase money financing and to execute documents, in form and substance reasonably satisfactory to Landlord, that permit the equipment lessors, title and lien holders, as applicable, the right NB1.215136.VIB 45 W1196 196 n)I • 0 to enter the premises for the sole purpose of exercising their rights to the Furnishings subject to such leases, retained title contracts, security interest or other forms of purchase money financing. 14.5 Cross Collateralization of Premises. Tenant shall not assign, hypothecate, mortgage, pledge or alienate Tenant's leasehold estate and rights hereunder (including Tenant's interest in any subleases, license agreements and concession agreements) to a lender as security for the payment of indebtedness of Tenant which mortgage, pledge or other security agreement does not provide for the full release and reconveyance of such mortgage, pledge or security Interest upon payment of a sum equal to the maximum amount of financing permitted by Section 14.1 (less any principal sums paid under the loan agreements and plus any sum expended by the Mortgagee in the exercise of its rights under the loan agreements). ARTICLE XV WASTE AND GOVERNMENTAL REGULATIONS 15.1 Waste or Nuisance. Tenant shall not commit or suffer to be committed any waste or nuisance in or upon the Project or the Premises. This provision shall in DO way preclude or restrict Tenant in the lawful performance of Its rights to operate the Project pursuant to the provisions of this Lease. 15.2 Governmental Regulations. Tenant, at its sole cost and expense, shall comply with and observe, without exception, all of the laws, rules, ordinances, orders, regulations and requirements of all county, municipal, state, federal and other applicable governmental authorities, now in force, or which may hereafter be in force, having jurisdiction over the Premises, the Project and/or the operations to be conducted by Tenant thereon or thereat. Without limiting the generality of the foregoing, Tenant shall obtain all permits and licenses (such as building permits and operating permits and licenses) as may be required by any such governmental authorities and shall make such alterations, changes, additions or improvements In the Premises, the Project and its operations thereat as may be required by any such governmental authorities (and approved by Landlord), including structural changes. Landlord shall cooperate to the extent reasonably necessary to permit Tenant to comply with the provisions of this Section 15.2 within the time periods necessary for such compliance. 15.3 Tenant's Right to Contest Governmental Regulations. Tenant shall have the right to contest by appropriate proceedings conducted in good faith and with reasonable diligence, without cost or expense to Landlord, the validity or application of any law, ordinance, order, rule, regulation or requirement of the nature referred to in Section 15.2. Tenant may delay compliance with any law, N81 -2 1 51 3 6.V18 46 6/06196 rl 0 0 ordinance, order, rule, regulation or requirement until the final determination of such proceeding if compliance may legally be delayed pending the prosecution of any such proceeding without the incurrence of any lien, charge or liability of any kind against the Premises or Tenant's interest therein and without subjecting Tenant or Landlord to any liability, civil or criminal, for failure so to comply therewith. Ewen if such lien, charge or civil liability would be incurred by reason of any such delay, Tenant may, following reasonable notice to Landlord, contest as aforesaid and delay as aforesaid, provided that such contest or delay does not subject Landlord to criminal liability, damages or expense, and provided that Tenant furnishes Landlord security, reasonably satisfactory to Landlord, against any loss or injury by reason of such contest or delay. Landlord shall not be required to join in any proceedings referred to in this Section 15.3 unless the provisions of any applicable law, rule or regulation then in effect shall require that such proceedings be brought by and/or in the name of Landlord or shall otherwise require that Landlord be a party thereto, in which event Landlord shall join in the proceeding or permit the same to be brought in Its name, provided Tenant shall pay all expenses in connection therewith. Tenant shall not contest the validity or application of any land use permits or approvals affecting the Premises and In existence as of the date of this Lease. ARTICLE XVI EMINENT DOMAIN 16.1 Lease Governs. Subject to the rights of any Mortgagee, the rights and obligations of the parties with respect to any Award, as defined In Section 16.5, shall be as provided In this Article XVI if there is any Taking during the Term of this Lease. 16.2 Termination of Lease. This Lease shall terminate effective on the date of surrender of possession of the Premises, or so much thereof or interest therein as has been taken, to the condemning authority in the event of a Total Taking. Tenant shall continue to pay all Rental due hereunder and, in all respects, keep, observe and perform all of the terms, covenants and conditions of this Lease to be kept, observed and performed by Tenant until the date of such termination. 16.3 Partial Taking; Rental Abatement. If there Is a Partial Taking, this Lease shall remain in full force and effect with respect to that portion of the Premises not taken, and a fair and equitable proportion of the Rental shall be abated according to the nature and extent of the Partial Taking, and the duration and extent of the interruption of Tenant's operations due to such taking and restoration of the Project. N81.215186.W 8 47 6/06/96 0 0 16.4 Partial Taking; Restoration. If there is a Partial Taking, Tenant may, at its sole cost and expense, whether or not the condemnation award on account of such Taking shall be sufficient for the purpose, promptly commence and diligently proceed to effect restoration of the Project on the remaining portion of the Premises as nearly as possible to their value, condition and character Immediately prior to such Taking. 16.5 Distribution of Award. All awards and damages received on account of any Taking, whether partial or total (including all amounts in respect to both the Premises, Improvements constructed thereon, and personal property located thereon or thereat), including Interest received, if any, whether such award or damages are paid in respect to the Taking of the fee or leasehold interest in the Premises (hereinafter collectively referred to as the "Award"), shall be paid promptly by the person(s) receiving the same to an escrow agent mutually acceptable to Landlord, Tenant, and any Mortgagee, to be released as hereinafter provided upon appropriate instruction from the parties hereto. The Award may be paid to a Mortgagee who will then act as the escrow agent if such Mortgagee agrees in writing for the express benefit of Landlord and Tenant to be bound by the terms of Sections 16.6 and 16.8 below. The Mortgagee whose lien shall have the highest priority shall be selected to act as escrow agent if there shall be more than one Mortgagee who shall so agree in writing. 16.6 Allocation of Award; Partial Taking. Any Award in a Partial Taking shall be distributed by the aforementioned escrow agent in the following order of priority: (a) First, to Landlord, Tenant and all Mortgagees, as herein provided, as reimbursement for all costs and expense incurred by each of them in the collection of the Award, including fees and expenses incurred in the condemnation proceeding unless Landlord is the condemning authority; (b) Second, to Tenant, as reimbursement for the costs and expenses of restoration of the Project, as such costs and expenses are incurred by Tenant; (c) Third, to the Mortgagees, in the order of their respective priorities, such sum as Is necessary to reduce the aggregate principal amount of the liens thereof unless and to the extent such liens are to remain against the Leasehold; and (d) Fourth, if Landlord and Tenant are unable to agree upon the allocation of the balance of the Award, if any, it shall be deposited by said escrow agent Into a court of competent jurisdiction to be equitably allocated between Landlord and Tenant based on the respective Interests of Landlord and NB1.215136.VIB 48 6WA6 G Z, Tenant in the balance of said Award as determined by said court after taking into account the interests of Landlord and Tenant previously compensated in the distributions provided for in (b) and (c) of this Section 16.6. 16.7 Allocation of Award; Temporary Taking. In the event of a Taking for temporary use or occupancy, this Lease shall continue in full force and effect without reduction or abatement of any Rent payable hereunder, and Tenant shall be entitled to claim, recover and retain any Award made on account of such temporary Taking remaining after paying the reasonable costs and expenses of Tenant incurred In collecting such Award; provided, however, that if the period of such temporary Taking extends beyond the Term of this Lease, such Award shall be apportioned between Landlord and Tenant as of the date of expiration of the Term of this Lease. 16.8 Allocation of Award; Total Taking. Any Award in a Total Taking shall be distributed by the aforementioned escrow agent in the following priority: (a) first, to Landlord, Tenant and all Mortgagees, as herein provided, as reimbursement for all costs and expenses incurred by each of them In the collection of the Award, including fees and expenses incurred in the condemnation proceeding; (b) second, to the Mortgagees, in the order of their respective priorities, such sum as is necessary to satisfy and discharge the liens thereof; and (c) if Landlord and Tenant art unable to agree upon the allocation of the balance of the Award, if any, it shall be deposited by said escrow agent into a court of competent jurisdiction to be equitably allocated between Landlord and Tenant based on the respective interests of Landlord and Tenant in the balance of said Award as determined by said court after taking into account the Interests of Landlord and Tenant previously compensated in the distribution provided for In Section 16.8(a). The determination of the value of Tenant's and Landlord's respective interests in the Project and the Premises for the purposes of Section 16.8(c) shall be made as If the Lease were to continue in full force and effect until the Expiration Date. 16.8 Conduct of Proceedings. Subject to the rights of any Mortgagee to participate therein, Tenant and Landlord shall jointly commence, appear In and prosecute any action or proceeding involving a Taking of the Premises, or any part thereof'or Interest therein, by condemnation or under the power of eminent domain, or NB1-215136.V16 119 6/06/96 �"N otherwise and shall jointly make any compromise or settlement in connection therewith. 16.10 Notices. Upon any party receiving notice of or becoming aware of any condemnation proceedings, or threat thereof, such party shall promptly give written notice to the other party in the manner specified in Section 19.6 below. ARTICLE XVII DEFAULT PROVISIONS 17.1 Events of Default. The occurrence of any one or more of the following shall constitute a default by Tenant under this Lease: (a) failure of Tenant to pay any Rent or Additional Rent due hereunder within three (3) days after wrltten notice from Landlord; provided however, that any such notice shall be In lieu of, and not in addition to, any notice required by the Code of Civil Procedure of the State of California, as amended from time to time; or (b) any failure by Tenant to perform any of the other terms, conditions or covenants of this Lease to be observed or performed by Tenant other than a failure to pay any Rent or Additional Rent due hereunder within thirty (30) days after written notice from Landlord; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required by the Code of Civil Procedure of the State of California, as amended from time to time. A default by Tenant described in this Section 17.1(b) which Is not reasonably susceptible of cure within thirty (30) days after receipt of Landlord's notice of default shall be deemed cured if Tenant commences to cure said default within thirty (30) days of receipt of Landlord's notice of default and Tenant, in fact, diligently proceeds to cure said default and does cure said default within a reasonable period of time thereafter; or (c) Tenant becoming insolvent or filing any debtor proceedings, or should any adjudications in bankruptcy be rendered against Tenant, or should Tenant take or have taken against it, in any court pursuant to any statute either of the United States or of any State, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant's property, and should the same not be discharged within one hundred twenty (120) days thereafter; or (d) Tenant making an assignment for the benefit of creditors, or petition for or enter into an arrangement ; or N61 -215136.V18 50 610"6 (e) The abandonment or vacation of the Project by Tenant for a period of fifteen (15) consecutive days after written notice to Tenant (except for such abandonment or vacation attributable to any event of Force Majeure or by the remodeling, reconstruction, alteration or repair of the Project); or (f) the appointment of a trustee or receiver to take possession of substantially all of the assets of Tenant located at the Premises or Tenant's interest in this Lease or the Premises, where possession Is not restored within one hundred twenty (120) days; or (g) Tenant permitting this Lease or any substantial portion of its property on the Premises or any portion of Its Interest in the Premises or the Project to be taken under any writ of attachment or execution, and should the same not be discharged within ninety (90) days thereafter. 17.2 Remedies Upon Default. (a) Except as prodded in Section 17.4 and subject to the rights of Mortgagees, should there be an Event of Default by Tenant under this Lease and should Landlord, as a result thereof, elect to re-enter, as prodded in this Article XVII, or should it take possession pursuant to legal proceedings or pursuant to any notice prodded for by law, Landlord shall be entitled to proceed in accordance with and recover the amounts specified In California Civil Code Sections 1951.2 and 1951.4. Landlord may either terminate this Lease, or it may from time to time without terminating the Lease, make such alterations and repairs as may be necessary In order to continue operation of business at the Premises, and relet the Premises, or any part thereof, for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rent and charges and upon such terms and conditions as Landlord In its sole discretion may deem advisable; upon each such reletting all Rental received by Landlord shall be applied, first, to the payment of any indebtedness other than Rental due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including brokerage fees and attorneys' fees and expenses and of costs of such alterations and repairs; third, to the payment of Rental due and unpaid hereunder, and the residue, If any, shall be held by Landlord and applied in payment of future Rental as the same may become due and payable hereunder. Tenant shall pay any such deficiency to Landlord If such Rental received from such reletting during any month is less than that which would be due during that month from Tenant hereunder. Such deficiency shall be calculated and paid monthly. No such reentry or taking possession of the Premises by Landlord shall be construed as an election on Its part to terminate this Lease unless a NB1.215136.V1B r written notice of such intention is given to Tenant or unless the termination thereof is decreed by a court of competent Jurisdiction. Notwithstanding any such reletting without termination. Landlord may at any time elect to terminate this Lease for such Event of Default. Should Landlord at any time terminate this Lease for any such Event of Default, in addition to any other remedies it may have, it may recover from Tenant all damages it may reasonably incur by reason of such Event of Default, Including the cost of recovering the Premises and its reasonable attorneys' fees and expenses. (b) Following an Event of Default by Tenant hereunder, Tenant shall promptly deliver to Landlord all plans and specifications and all working drawings prepared in connection with the development of the Project not previously delivered to Landlord. Tenant's obligations under this Section 17.2(b) shall survive the expiration or earlier termination of this Lease. 17.3 Landlord Acting for Tenant's Account. If Tenant shall fail in the performance of any provision, covenant or condition on Its part to be performed under this Lease, Landlord may, at is option, any time after the expiration of any applicable notice and cure period granted to Tenant and Mortgagees under this Lease (unless Landlord reasonably believes there to be an emergency threatening damage to Landlord's interest In the Premises or the Project, In which event no notice is required and Landlord may act immediately), perform the same for the account of, and at the expense of Tenant. The sums so paid or reasonably incurred by Landlord, together with interest at the Default Rate, costs and damages shall be due from and paid by Tenant, as Additional Rental, on demand. 17.4 Limited Liability; Non -Recourse Ground Lease. (a) Notwithstanding anything to the contrary contained in this Lease, including without limitation the remedies of Landlord contained in this Article XVII, except as otherwise provided in Subsection (b) below, If at any time following completion of the Project, as contemplated In the Final Pians, Tenant shall fail to perform or pay any covenant or obligation on its part to be performed or paid hereunder, and as a consequence thereof, Landlord or its successors and assigns shall obtain a money judgment against Tenant, Landlord agrees to look solely to the interest of Tenant in the Project for the satisfaction of such judgment, and if such interest is insufficient to satisfy the Judgment amount, Landlord shall have no right of action nor shall Tenant be liable for any such insufficiency. (b) Notwithstanding the foregoing provisions of Subsection (a) above, nothing herein is intended to relieve Tenant from the performance of any of its obligations hereunder, but rather to limit Tenant's liabilities as aforesaid. NBI.215136.V18 52 6MM6 47 Nothing in paragraph (a) shall be deemed to prejudice the rights of Landlord against Tenant, and Tenant shall be fully liable to Landlord for damages suffered by Landlord, to the extent provided by law: (f) as a result of fraud, misrepresentation or gross negligence by Tenant; (fi) as the result of the retention of any rental or other income arising with respect to the Premises which is collected by Tenant after Landlord has given notice to Tenant that It Is in default under the Lease (to the full extent of such rental or other Income collected by Tenant after the giving of any such notice); (111) for the fair market value as of the time of giving of any notice referred to in (ii) hereinabove of any personal property or fixtures located, attached and/or used In connection with the Project which are removed or disposed of by Tenant; and (Iv) as the result of the misapplication of any proceeds under any insurance policies, condemnation awards or settlements attributable to all or any portion of the Premises or Project. ARTICLE XVIII LANDLORD'S ACCESS 18.1 Landlord's Right of Access. Upon reasonable prior notice to Tenant, Landlord and Landlord's agents shall have the right to enter the Premises and/or the Project during regular business hours for the purpose of determining Tenant's compliance with any provision, covenant or condition on Tenant's part to be performed under this Lease; provided, however, that Landlord shall not Interfere with the normal conduct of Tenant's business on the Premises. Landlord hereby agrees to indemnify, defend with counsel satisfactory to Tenant and hold Tenant free and harmless from any and all losses, costs, damages or expenses suffered or incurred, directly or Indirectly, by activities conducted by Landlord or Landlord's agents under this Section 18.1. Tenant agrees to have available to Landlord at reasonable times and upon reasonable notice a representative who may accompany Landlord's representative in the exercise by Landlord of its right of entry and access. NB 1.2151 XV18 53 ljp 0 0 ARTICLE XIX MISCELLANEOUS 19.1 Waiver. The waiver by either Landlord or Tenant of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of any Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease other than the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance. No covenant, term or condition of this Lease shall be deemed to have been waived by Landlord or Tenant, unless such waiver is in writing signed by the party against whom such waiver is asserted. 19.2 Accord and Satisfaction. Except as otherwise expressly provided in this Lease, no payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy in this Lease. 19.3 Entire Lease. This Lease and the Option Agreement set forth all the covenants, promises, conditions and understandings between Landlord and Tenant, oral or written, relating to the subject matter hereof. No subsequent alterations, amendments, changes or additions to this Lease shall be binding upon Landlord and Tenant unless reduced to a writing, signed by them and approved by the Mortgagees, if and to the extent required under their respective Mortgages. 19.4 Termination of Existing Lease. Concurrently with execution of this Lease by the parties, the Existing Lease is hereby terminated; provided, however, that any accrued and unpaid rental obligations of Tenant thereunder not included in the rental obligations of this Lease shall be Immediately due and payable and remain in full force and effect under this Lease. 19.5 Force Majeure. The performance of any act required hereunder shall be excused for the period of any delay, hindrance or prevention of such act due to an event of Force Majeure and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. The performance of such act shall be excused if either party shall be indefinitely prevented from the performance of any act required hereunder by reason of such event of Force N81.2151XV18 54 �r 11 • Majeure. No event of Force Majeure shall excuse the timely payment of money when due hereunder except as otherwise expressly provided in this Lease. 19.6 Notices. Any notice, request, demand, Instruction or other communication to be given to either party hereunder shall be in writing and shall be deemed to have been duly given when personally delivered, twenty-four (24) hours after deposited with a reliable overnight carrier, guaranteeing next day delivery, postage prepaid, addressed as set forth below, or forty-eight (48) hours after mailed by United States Registered Mail, return receipt requested, postage prepaid as follows: If to Landlord: City of Newport Beach 3300 Newport Boulevard P. 0. Box 1768 Newport Beach, California 92658-8915 Attention: City Manager With copy to: City of Newport Beach 3300 Newport Boulevard P. 0. Box 1768 Newport Beach, California 92658-8915 Attention: City Attorney O'Melveny & Myers 610 Newport Center Drive Suite 1700 Newport Beach, California 92660-6429 Attention: Lowell C. Martindale, Jr. If to Tenant: c/o International Bay Clubs, Inc. 1221 West Coast Highway Newport Beach, California 92663 Attention: General Manager With copy to: Pinto, Gromet, Dubia & Worcester 2 Park Plaza, Suite 300 Irvine, California 92714 Attention: Saul B. Pinto And: Tenant's Mortgagee(s) provided Landlord has received notice of and the address of such Mortgagee(s) Any notice party may change its address for purposes of receiving notice hereunder by giving notice to the other party pursuant to the provisions hereof. NB1.215136.VI6 55 6AWN 0 0 Refusal to accept delivery of any notice, request, demand, instruction or other communication shall be deemed to be delivery thereof. In the event of a partial assignment of either Landlord's or Tenant's interest under this Lease, no notice or payment shall be given or made to any such partial assignee, but only to one person, firm or corporation as shall have been duly designated by an instrument executed and acknowledged by all such partial assignees and a duplicate original shall have been served upon the other party hereto. Notice or payment shall be given or made only to the last assignee of this Lease as a whole or the one person, firm or corporation named in the most recent designation duly made and served. Neither Tenant nor Landlord shall have any liability to see to the proper distribution of any notice or payment so made to the other party. 19.7 Captions and Section Numbers. The captions, section numbers, article numbers and index appearing in the Lease are inserted only as a matter of convenience, and in no way define, limit, construe or describe the scope or intent of such section or article, nor in any way affect this Lease. 19.8 Construction of Language. The language in all parts of this Lease shall be construed simply, according to its fair meaning, and not strictly for or against either Landlord or Tenant. The term "permit" shall be interpreted to include "cause to be permitted or suffered to be permitted", and the term "include" shall be interpreted not to imply any limitation on the more general preceding provision, unless in each instance otherwise expressly provided in this Lease. . 19.9 Broker's Commission. In connection with the transaction contemplated by this Lease, Landlord and Tenant each represents to the other that It has not entered Into any agreement or incurred any obligation which might result in the obligation to pay a brokerage commission or finder's fee with respect to this transaction. Landlord and Tenant each agree to indemnify, defend, protect and hold the other harmless from and against any and all losses, claims, damages, costs or expenses (including attorneys' fees) which the other may incur as a result of any claim made by any person to a right to a brokerage commission or finder's fee in connection with this transaction to the extent such claim is based, or purportedly based, on the acts or omissions of Landlord or Tenant, as the case may be. 19.10 Limitation of Landlord's Obligations. Landlord shall not be called upon or required at any time to make any Improvements, alterations, changes, additions, repairs or replacements of any nature whatsoever in or to the Premises. 19.11 Landlord's or Tenant's Discretion. Landlord or Tenant, as applicable, shall not have a right to unreasonably withhold, condition or delay such consent or approval if Landlord's or Tenant's consent or approval Is required hereunder unless the provision of the Lease states that such approval or consent is In the NB1-215136.V1 B 56 6/06/96 sole or absolute discretion of the applicable party. Whenever Landlord's or Tenant's approval or consent Is required under this Lease, Landlord or Tenant, as applicable, shall be deemed to have granted such approval or consent if Landlord or Tenant, as applicable, has failed to respond to such request within the period of time expressly given such party to respond under the applicable section hereof or, if no deadline for a response is given under the applicable section, within thirty (30) days of its receipt of such written request delivered in accordance with the terms of Section 19.6. 19.12 Interest. Interest shall accrue at the Lease Interest Rate on any sums owed by Tenant to Landlord, or vice versa, starting from the first date of delinquency and continuing until the full amount including interest is paid. 19.13 Successors. Except as herein otherwise provided, the terms hereof shall be binding upon and shall inure to the benefit of the successors and assigns, respectively, of Landlord and Tenant. 19.14 Applicable Law. This Lease and all provisions hereof, irrespective of the place of execution or performance, shall be construed and enforced in accordance with the laws of the State of California without giving effect to conflict of laws provisions. 19.15 Landlord's and Tenant's Rights are Cumulative. The rights and remedies conferred upon both Landlord and Tenant in this Lease and by law are cumulative. 19.16 Saving Clause. If any provision of this Lease, the deletion of which would not adversely affect the receipt of any material benefit by any party hereunder or substantially increase the burden on any party hereto, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Lease. 19.17 Attorneys' Fees and Expenses. If either party incurs any expense, including reasonable attorneys' fees and expenses, in connection with any action or proceeding against the other, arising out of or in connection with this Lease. whether or not such action proceeds to trial, the sums so paid by the prevailing party shall be due from and be paid by the nonprevailing party on demand. 19.18 Injunctive Relief. In addition to any remedies expressly mentioned in this Lease, the other party shall have the right of injunction and the right to invoke any remedy allowed at law or in equity if there is any breach or threatened breach by either party of any of the covenants or provisions of this Lease. NBI-215136.V18 57 6/8&96 19.19 Appraisal. If an appraisal is required under the terms of this Lease for the purposes of determining "fair market value', unless otherwise specified herein, such appraisal shall be determined by the appraisal by three (3) disinterested real estate appraisers, each with at least ten (10) years' experience in the appraisal of similar property interests, one being chosen by Landlord, one by Tenant, and the third by the other two appraisers. The average of the two appraisals closest in value shall be deemed the "fair market value". Landlord shall pay the costs of the appraiser selected by Landlord, Tenant shall pay the costs of the appraiser selected by Tenant, and Landlord and Tenant shall split the costs of the third appraiser. 19.20 Recording. Landlord and Tenant shall execute for purposes of recordation in the Office of the County Recorder a memorandum or short form of this Lease in the form attached hereto as Exhibit B. The cost and expenses of recording the memorandum or short form of the Lease shall be borne by the party asking for the memorandum to be recorded. Each party agrees that it will not record the Lease In its entirety. 19.21 Incorporation of Preamble, Recitals and Exhibits. The preamble, recitals and exhibits hereto are hereby incorporated into this Lease and made a part hereof. NB1.215136.VIB 58 6/06196 19� 1-1 L IN WITNESS WHEREOF, Landlord and Tenant have duly executed and delivered this Lease as of the day and year first above written, Attest: City Clerk Approved as to Form: City Attorney N61 -215136.V16 LANDLORD: CITY OF NEWPORT BEACH, a municipal corporation Mayor TENANT: BBC PROPERTY, INC., a New York Corporation By: _ Its: By: Its: 59 6MOM Cl EXHIBIT A LEGAL DESCRIPTION OF LEASED PREMISES [TO COME] N81.215138.V18 G(OMe I, is 0 EXHIBIT B MEMORANDUM OF GROUND LEASE RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: International Bay Clubs, Inc. 1221 W. Coast Highway Newport Beach, California 92663 MEMORANDUM OF GROUND LEASE This Memorandum of Ground Lease ("Memorandum") is entered into effective as of (the "Commencement Date"), by and between THE CITY OF NEWPORT BEACH, a municipal corporation ("Landlord"), and BBC PROPERTY, INC., a New fork Corporation ("Tenant"). RECITALS A. Landlord and Tenant have entered into that certain Ground Lease (the "Lease") dated as of the Commencement Date relating to certain real property located in the City of Newport Beach, County of Orange, State of California described more particularly on Exhibit A attached hereto and by this reference made a part hereof (the "Premises"). Landlord and Tenant each desires to execute this Memorandum for recordation in the real property records of the County of Orange in order to memorialize the existence of the Lease. NOW THEREFORE, with reference to the foregoing recital, the parties hereto agree as follows: 1. Lease of Premises. Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, the Premises, on the terms and conditions set forth in the Lease. 2. Term. The term of the Lease shall be for a period of fifty (50) years commencing upon the Commencement Date, unless sooner terminated pursuant to the provisions of the Lease. N81.215136.V18 6/88/96 �bI 0 3. Incorporation of Lease. This instrument is a memorandum of the Lease and is subject to all of the terms and conditions of the Lease. The terms of the Lease shall prevail if there is any Inconsistency between the terms of this instrument and the terms of the Lease. IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum as of the date first set forth above. THE CITY OF NEWPORT BEACH, a municipal corporation an BBC PROPERTY, INC., a New York Corporation By: _ Its: By: _ Its: N81 -21 51 38.V18 6MM6 0 0 ! STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) On before me personally appeared , personally known to me (or 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 executed the same in his authorized capacity, and that by his signature on the instrument the person, or entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On before me personally appeared , personally known to me (or 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 executed the same in his authorized capacity, and that by his signature on the instrument the person, or entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public NBi-215138.V18 flWA6 M 0 10 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On before me personally appeared , personally known to me (or 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 executed the same in his authorized capacity, and that by his signature on the Instrument the person, or entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public NB1-215136.V16 6/66/96 1' 0 NBI.215136.VI8 EXHIBIT C SIGNAGE REGULATIONS [TO COME] 0 6106!86 0