Hollywood Park, Inc.
Exhibit 10.39
AGREEMENT
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This agreement ("Agreement") is hereby entered into by and between Crystal
Park Hotel & Casino Development Company LLC, a California limited liability
company ("Crystal Park") and Compton Entertainment, Inc., a California
corporation ("CEI") as of September 12, 1997 with reference to the following
facts:
A. On or about August 3, 1995, CEI and Crystal Park's predecessor,
HP/Compton, Inc., entered into a written lease agreement (the "Original Lease")
for the premises commonly known as 111 N. Artesia Boulevard, Crystal City,
California 90220 (the "Premises"). On or about March 12, 1996, CEI and
HP/Compton, Inc. entered into the First Amendment to Lease. On or about July
30, 1996, Crystal Park succeeded to the rights of HP/Compton, Inc. with respect
to the Lease and the amendment thereto. On or about September 13, 1996, Crystal
Park and CEI entered into the Second Amendment to Lease. The Original Lease and
amendments thereto shall be collectively referred to herein as the "Lease."
B. CEI failed to make timely payment for rent under the Lease for the
month of June, 1997 and failed to make timely payment of property taxes due
Crystal Park under the Lease.
C. On July 21, 1997, Crystal Park filed an action for unlawful detainer
against CEI in Los Angeles Superior Court, case number BC 174953 (the "Action").
CEI answered the complaint on July 30, 1997. The trial of the Action is
currently scheduled to begin on September 8, 1997.
D. CEI has requested that Crystal Park continue the trial date in the
Action until October 9, 1997, or as soon thereafter as the Court's schedule will
allow.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Crystal Park and CEI hereby agree as follows:
1. Continuance of Trial Date. Crystal Park shall request that the Court
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continue the trial of the Action from September 8, 1997 until the week of
October 13, 1997, or as soon thereafter as the Court's schedule will allow.
2. Payment Schedule. CEI shall make the following payments on the dates
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listed below:
2.1 CEI and Crystal Park acknowledge that on or about September 4,
1997, CEI delivered to Crystal Park's offices a check in the
amount of $200,000, and that on or about September 12, 1997 CEI
delivered to Crystal Park's offices a check in the amount of
$150,000. CEI and Crystal Park hereby agree that Crystal Park
has accepted these checks as payment for CEI's occupancy of the
Premises for the month of August, 1997 in accordance with and
subject to all of the provisions of this Agreement, including but
not limited to the provisions of paragraphs 3 and 4 hereof.
Without limiting the generality of the foregoing, CEI and Crystal
Park hereby agree that Crystal Park's acceptance of these
payments (1) does not constitute a waiver of Crystal Park's
declaration of forfeiture of the Lease, or of Crystal Park's
rights to prosecute the
Action and recover possession of the Premises; and (2) does not
constitute, and shall not be used as evidence of, any lease
agreement between CEI and Crystal Park.
2.2 On or before September 19, 1997, CEI shall pay Crystal Park the
amount of $50,000 as a partial payment for CEI's occupancy of the
Premises for the month of September, 1997.
2.3 On or before October 8, 1997, CEI shall pay Crystal Park the
amount of $350,000. The first $300,000 of this amount shall
complete payment for CEI's occupancy of the Premises for the
month of September, 1997. The last $50,000 of this amount shall
constitute a partial payment for CEI's occupancy of the Premises
for the month of July, 1997.
3. Crystal Park's Contentions. Crystal Park contends that it declared
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the Lease terminated prior to commencing the Action and that the Lease is
terminated and of no further force and effect. Crystal Park contends that CEI
is currently occupying the Premises as a holdover tenant only with no rights
under the Lease or any other lease agreement and the payments referred to in
paragraph 2 represent occupancy charges as a holdover tenant. CEI denies these
contentions.
4. No Waiver. CEI and Crystal Park hereby acknowledge and agree that the
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purpose of this Agreement is to continue the trial of the Action and allow CEI
to make, and Crystal Park to accept, the payments specified in paragraph 2
above, without causing any change or prejudice whatsoever to the parties'
respective contentions and positions in the Action, or to Crystal Park's ability
to pursue any and all rights and remedies it currently has or may have in the
future. Without limiting the generality of the preceding sentence, CEI and
Crystal Park hereby further agree as follows:
4.1 Nothing in this Agreement, including but not limited to the
characterization of payments hereunder as "rent," nor any action taken by either
party pursuant to this Agreement, including but not limited to Crystal Park's
acceptance of payment hereunder, shall constitute a waiver of Crystal Park's
contentions described in paragraph 3 above. Neither this Agreement nor any
action taken by CEI or Crystal Park pursuant to this Agreement, including but
not limited to Crystal Park's acceptance of payment by CEI, shall constitute or
be used as evidence of any lease, or the reinstatement of the Lease, between the
parties.
4.2 Nothing in this Agreement, nor any action taken by either party
pursuant to this Agreement, including but not limited to Crystal Park's
acceptance of payment hereunder, shall constitute a waiver of any of Crystal
Park's rights, including but not limited to Crystal Park's rights to (1) enforce
the payment of rent previously due under the Lease; (2) pursue remedies for
previous defaults by CEI under the Lease; (3) pursue the Action and seek
possession of the Premises and a judicial declaration of termination of the
Lease; or (4) characterize CEI's present occupancy as a holdover tenancy.
Nothing in this paragraph 4.2 shall be interpreted as an admission by CEI that
Crystal Park has any of the rights described in this paragraph 4.2.
4.3 Neither this Agreement, nor any action by either party hereunder,
including but not limited to Crystal Park's acceptance of payment hereunder,
shall constitute a waiver of any notice previously served on CEI by Crystal
Park, including but not limited to the notices served on CEI on July 14, 1997
and August 20, 1997, any
declaration of forfeiture of the Lease contained in such notices, or of Crystal
Park's right to pursue an action for unlawful detainer based on any such
notices. Neither this agreement nor any action taken by either party hereunder
shall constitute a waiver of any of the defenses raised by CEI in the Action
including but not limited to CEI's contention (which Crystal Park disputes) that
Crystal Park's acceptance of rent payments made prior to the payments identified
in paragraph 2 constituted a waiver of Crystal Park's claims for unlawful
detainer.
5. CEI and Crystal Park agree that, provided that CEI is in full and
strict compliance with the terms of this Agreement, CEI and Crystal Park will
meet within thirty days after September 19, 1997 to discuss the possibility of
an agreement to allow CEI to continue in possession of the Premises at an agreed
upon monthly rent. Notwithstanding the foregoing, CEI and Crystal Park
acknowledge and agree that (1) Crystal Park is under no obligation, either
express or implied, to enter into any such agreement; and (2) Crystal Park has
made no promises or representations, either express or implied, that it will
enter any such agreement; (3) this paragraph 5 does not constitute, and shall
not be used as evidence of, any leasehold interest in the Premises by CEI; and
(4) nothing in this paragraph 5 shall constitute a waiver of, or otherwise
limit, Crystal Park's right to characterize CEI's current occupation of the
Premises as a holdover tenancy.
6. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which, when executed, shall be deemed to be an original
hereof, and all of which together shall be deemed to be one and the same
instrument.
7. Entire Agreement. This Agreement constitutes a single, integrated
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written contract expressing the entire agreement between the Parties and
supersedes any and all prior written, oral or implied discussions, negotiations
or understandings between them. No person has authority to make any
representations or promises on behalf of the parties hereto which is not
specifically set forth in this Agreement. This Agreement may be amended,
modified, or supplemented only by a writing executed on behalf of both of the
parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
CRYSTAL PARK HOTEL & CASINO
DEVELOPMENT COMPANY, LLC
a California limited liability company
By: HP/Compton, Inc.
a California Corporation, Manager
By: /s/ G. Michael Finnigan
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G. Michael Finnigan
Its: Vice President
COMPTON ENTERTAINMENT, INC.
a California Corporation
By: /s/ Rouben Kandilian
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Rouben Kandilian