Exhibit 99.5
PLEASE RETURN TO:
BUNKER HILL ASSOCIATES
300 South Grand Ave.,
Recording requested by and Suite 3200
when recorded return to: Los Angeles, CA 90071
(F.S.9/89)
Russell L. Johnson, Esq.
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, CA 90071
_________________________________________________________________________
(space above this line
for Recorder's use)
THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF LOS ANGELES, CALIFORNIA
RECORDED IN OFFICIAL RECORDS FEE $147
OF LOS ANGELES COUNTY, CA 144
AUG 26 1983 AT 8 A.M. AND
Recorder's Office
BUNKER HILL ASSOCIATES
LEASE OF PHASE 1A
Dated as of August 26, 1983.
Property Located in Los Angeles County, California
CERTIFICATE
The undersigned hereby certifies as follows with respect to
that certain ground lease by and between the undersigned and Bunker Hill
Associates, a California partnership, dated of even date herewith and pertaining
to the real property described in Exhibit A (the "Ground Lease"), and the lease
therein memorialized:
The Ground Lease, being for a lease for a period of ninety-nine (99) years, is
exempt from transfer taxes under Los Angeles County Ordinance 9443.
Dated as of: August 26,1983.
The Community Redevelopment
Agency for the City of Los
Angeles, California
By /s/ Edward Helfeld
-----------------------------
Its: Administrator
TABLE OF CONTENTS
PAGE
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TABLE OF DEFINITIONS ........................................................... (vii)
RECITALS ....................................................................... 1
ARTICLE 1 - LEASE OF PROPERTY, TERM OF LEASE ................................... 3
1.1 Leasing Clauses ................................................. 3
1.2 Term ............................................................ 4
1.3 Modification .................................................... 4
1.4 Surrender of Museum Airspace and
Museum Building ................................................. 4
ARTICLE 2 - RENT ............................................................... 5
2.1 Holding Rent .................................................... 5
2.2 Base Rent ....................................................... 5
2.3 Escalation Rent ................................................. 6
2.4 Participation Rent .............................................. 7
2.5 Annual Accounting Statements .................................... 8
2.6 Net Rent; Manner of Payment ..................................... 9
2.7 Additional Rent ................................................. 10
2.8 Supplemental Rent ............................................... 10
ARTICLE 3 - DEVELOPMENT AND IMPROVEMENT ........................................ 11
3.1 Lessor's Improvements; Lessor's
Payments to Tenant .............................................. 11
3.2 Tenant's Improvements ........................................... 11
3.3 Proposed Changes ................................................ 12
3.4 Certifying Approval ............................................. 12
3.5 Commencement of Construction .................................... 12
3.6 Certificate of Completion ....................................... 12
(i)
PAGE
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3.7 Refusal to Certify .............................................. 13
3.8 Phase 1A Improvements Defined ................................... 14
3.9 Dedications and Grants of
Public Easements; Maps and
Instruments .................................................... 14
3.10 Nondiscrimination ............................................... 15
ARTICLE 4 - INTENTIONALLY OMITTED .............................................. 15
ARTICLE 5 - CONSOLIDATION OF LEASES ............................................ 15
5.1 Consolidation of Leases ......................................... 15
ARTICLE 6 - CONDITION AND USE OF PHASE ......................................... 16
6.1 Use of the Leased Property ...................................... 16
6.2 Compliance of Phase with Legal
Requirements ................................................... 16
ARTICLE 7 - MAINTENANCE AND REPAIRS .......................................... . 16
7.1 Maintenance ..................................................... 16
ARTICLE 8 - ALTERATIONS AND ADDITIONS;
DEMOLITION ..................................................... 17
8.1 Alterations and Additions ....................................... 17
8.2 Demolition and Reconstruction ................................... 18
ARTICLE 9 - PAYMENT OF IMPOSITIONS,
AND SUBSTITUTE IMPOSITIONS ..................................... 19
9.1 Payment, Evidence of Payment. ................................... 19
9.2 Substitute Impositions .......................................... 19
ARTICLE 10 - COMPLIANCE WITH REQUIREMENTS ...................................... 20
ARTICLE 11 - LIENS ............................................................. 20
ARTICLE 12 - PERMITTED CONTESTS ................................................ 21
ARTICLE 13 - NO CLAIMS AGAINST LESSOR .......................................... 21
ARTICLE 14 - INDEMNIFICATION BY TENANT ......................................... 21
(ii)
PAGE
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ARTICLE 15 - UTILITY SERVICES .................................................. 22
ARTICLE 16 - QUIET ENJOYMENT ................................................... 22
ARTICLE 17 - TENANT'S EQUIPMENT ................................................ 23
ARTICLE 18 - INSURANCE ......................................................... 23
18.1 Insurance During Term ........................................... 23
18.2 Insurance Companies and Policies -
Terms of Policy .............................................. 24
18.3 Tenant's Separate Insurance ..................................... 25
18.4 Tenant's Self-Insurance ......................................... 25
ARTICLE 19 - DAMAGE TO OR DESTRUCTION OF
SITE OR IMPROVEMENTS ......................................... 26
19.1 Tenant to Give Notice ........................................... 26
19.2 Restoration ..................................................... 26
19.3 Application of Insurance
Proceeds ..................................................... 27
19.4 Insurance Proceeds Less Than
$500,000 ..................................................... 28
ARTICLE 20 - TAKING ............................................................ 29
20.1 Tenant to Give Notice ........................................... 29
20.2 Total Taking .................................................... 29
20.3 Partial Taking .................................................. 29
20.4 Application of Awards and
Other Payments ............................................... 30
20.5 Reduction of Fixed Rent Upon
Payment to Lessor ............................................ 32
ARTICLE 21 - MORTGAGEE ......................................................... 32
21.1 Mortgagees, Transferees ......................................... 32
21.2 Subordination of Escalation Rent,
Supplemental Rent and
Participation Rent ........................................... 32
(iii)
PAGE
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21.3 Mortgagee's Escalation Rent ..................................... 33
ARTICLE 22 - FORBEARANCE; RIGHT TO PERFORM
TENANT'S COVENANTS ............................................ 34
22.1 Notice .......................................................... 34
22.2 Forbearance by Lessor............................................ 34
22.3 Performance on Behalf of Tenant ................................. 36
22.4 New Lease ....................................................... 36
ARTICLE 23 - MORTGAGES, ASSIGNMENTS ............................................ 37
23.1 Mortgages ....................................................... 37
23.2 Assignments ..................................................... 37
23.3 Occupancy Leases ................................................ 41
23.4 Refinancing ..................................................... 41
23.5 Consent of Mortgagee Required ................................... 42
23.6 Intentionally Omitted ........................................... 42
23.7 Sale for Profit of Interest
in Lease ....................................................... 42
ARTICLE 24 - EVENTS OF DEFAULT;
TERMINATION ..................................................... 47
ARTICLE 25 - CURRENT REMEDIES .................................................. 49
ARTICLE 26 - FINAL REMEDIES .................................................... 49
26.1 Remedies Upon Termination ....................................... 49
26.2 Limitation ...................................................... 50
ARTICLE 27 - ENTRY BY LESSOR ................................................... 51
ARTICLE 28 - LESSOR'S EQUITABLE RELIEF ......................................... 51
28.1 Continuing Right of Lessor ...................................... 51
ARTICLE 29 - NO WAIVER BY LESSOR OR TENANT ..................................... 51
ARTICLE 30 - LESSOR'S REMEDIES CUMULATIVE ...................................... 51
(iv)
PAGE
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ARTICLE 31 - ACCEPTANCE OF SURRENDER ........................................... 52
ARTICLE 32 - NO MERGER OF TITLE ............................................... 52
ARTICLE 33 - ESTOPPEL CERTIFICATE BY
TENANT ......................................................... 53
ARTICLE 34 - ESTOPPEL CERTIFICATE BY LESSOR .................................... 53
ARTICLE 35 - ARBITRATION ....................................................... 53
ARTICLE 36 - END OF LEASE TERM ................................................. 54
ARTICLE 37 - TENANT'S RIGHTS OF FIRST
NEGOTIATION .................................................... 55
37.1 Tenant's Rights of First
Negotiation .................................................... 55
37.2 Termination or Modification
of Lease Upon Purchase .......................................... 57
ARTICLE 38 - PROVISIONS SUBJECT TO
APPLICABLE LAW ................................................. 57
ARTICLE 39 - APPRAISAL ........................................................ 57
ARTICLE 40 - DEFINITIONS ...................................................... 58
ARTICLE 41 - NOTICES .......................................................... 73
ARTICLE 42 - ATTORNEYS' FEES .................................................. 74
ARTICLE 43 - LIMITED LIABILITY FOR TENANT ..................................... 74
ARTICLE 44 - MISCELLANEOUS .................................................... 75
EXHIBIT A - Description of Site
EXHIBIT A-l - Phasing Plan
EXHIBIT A-2 - Description of Phase 1A
EXHIBIT B - Description of Museum Airspace
EXHIBIT C - Approved Title Exceptions
EXHIBIT D - Non-Disturbance and Attornment
Agreement
EXHIBIT E - Names and Addresses for Notices
(v)
TABLE OF DEFINITIONS
Article
or
Definition Section
- ---------- -------
Additional Rent ....................................................... 2.7
Adjustment Year ....................................................... 40
Allocated Indebtedness ................................................ 23.7
Alternative Terms ..................................................... 37(c)
Annual Accounting Statement ........................................... 2.5
Approved Plans ........................................................ 3.2
Average Fixed Mortgage Payment ........................................ 40
Base Rent ............................................................. 2.2
Business Days ......................................................... 40
C-F ................................................................... Page 1
Capital Expenses ...................................................... 40
Certificate of Completion ............................................. 3.6
Commencement Date ..................................................... 40
Commencement of Construction .......................................... 40
Completion Date ....................................................... 2.7
Consolidated Equity Account ........................................... 23.7
CPA Consolidated Equity Account ....................................... 23.7
CRA Delay ............................................................. 40
Date of Taking ........................................................ 20.2
Deductible Profit ..................................................... 23.7
Default ............................................................... 40
Depositary ............................................................ 18.2
Developer ............................................................. 40
Developer's Preferred Return .......................................... 40
Developer's Preferred Return Deficit Account .......................... 40
Development Costs ..................................................... 40
Disposition Agreement ............... ................................. Recital C
Effective Interest Rate ............................................... 40
End of the Development Period of Phase 1A ............................. 40
Equity ................................................................ 40
Equity Account ........................................................ 23.7
Escalation Rent ....................................................... 2.3
Escalation Rent Debt Service .......................................... 40
Escalation Rent Net Cash Flow ......................................... 40
Event of Default ...................................................... 24
Fiscal Year ........................................................... 40
Fixed Mortgage Payment ................................................ 40
Full Fiscal Year ...................................................... 40
Future Transit Tunnel and Station ..................................... 3.11
Goldrich .............................................................. 40
Holding Period ........................................................ 40
Holding Rent .......................................................... 2.1
Impositions ........................................................... 40
Initial Mortgage ...................................................... 40
Institutional Investor ................................................ 40
Insurance Requirements ................................................ 40
Interest in this Lease ................................................ 23.7
(vi)
Article
or
Definition Section
- ---------- -------
Interest Rate .................................................................. 2.5
Lease .......................................................................... 40
Lease Term ..................................................................... 1.2
Legal Requirements ............................................................. 40
Lender ......................................................................... 23.7
Lender's Account ............................................................... 23.7
Lender's Interest .............................................................. 23.7
Lessor ......................................................................... Page 1
Maps and Instruments ........................................................... 3.9
Market Interest Rate ........................................................... 40
Minority Business Enterprise Credit ............................................ 40
Minority Business Enterprise Program ........................................... 40
Mortgage ....................................................................... 40
Mortgagee ...................................................................... 40
Mortgagee Escalation Rent ...................................................... 21.3
Museum Agreement ............................................................... Recital E
Museum Airspace ................................................................ Recital E
Museum Building ................................................................ Recital E
Museum Corporation ............................................................. Recital E
Museum Lease ................................................................... Recital E
Net Awards and Payments ........................................................ 20.4
Net Cash Flow .................................................................. 40
Net Operating Income ........................................................... 40
Net Worth ...................................................................... 40
New Mortgage ................................................................... 23.4
Notice ......................................................................... 22.1
Notice of Alternative Terms .................................................... 37(c)
Notice of Nonresponsibility .................................................... 40
Occupancy Lease ................................................................ 40
Occupancy Tenant ............................................................... 40
Operating Expenses ............................................................. 40
Original Improvements .......................................................... 3.2
Partial Taking ................................................................. 20.3
Participation Mortgage Payments ................................................ 40
Participation Rent ............................................................. 2.4
Participation Rent Debt Service ................................................ 40
Participation Rent Net Cash Flow ............................................... 40
Permitted Exceptions ........................................................... 1.1
Permitted Transferee ........................................................... 37
Person ......................................................................... 40
Phase and Phases ............................................................... Recital B
Phase 1A Improvements .......................................................... 40
Phase 1A Site .................................................................. 40
Phase IB Site .................................................................. Exhibit A-l
Phase 1C Site .................................................................. Exhibit A-l
Phase 2A Site .................................................................. Exhibit A-l
Phase 2B Site .................................................................. Exhibit A-l
Phase 2C Site .................................................................. Exhibit A-l
Phase 3A Site .................................................................. Exhibit A-l
Phase 3B Site .................................................................. Exhibit A-l
Preferred Capital Contribution ................................................. 40
Profit ......................................................................... 23.7(h)
(vii)
Article
or
Definition Section
- ---------- -------
Profit Date ........................................................... 23.7
Pro Forma Escalation Rent Net Cash Flow ............................... 40
Pro Forma Rent Roll ................................................... 40
Project ............................................................... 40
Projected Net Operating Income ........................................ 40
Projected Participation Mortgage Payments ............................. 40
Reciprocal Easement Agreement (REA) ................................... Recital D
Rent Payment Date ..................................................... 2.2
Restoration ........................................................... 19.2
Schedule of Performance ............................................... 3.4
Scope of Development .................................................. Recital C
Site .................................................................. Recital B
Shapell ............................................................... 23.7
Substitute Impositions ................................................ 40
Supplemental Rent ..................................................... 40
Supplemental Rent Net Cash Flow ....................................... 40
Supplemental Rent Payment Date ........................................ 2.8
Taking ................................................................ 40
Tenant ................................................................ Page 1
Tenant's Consolidated Equity Account .................................. 23.7
Tenant's Equipment .................................................... 40
Total Taking .................. ...................................... 20.2
Unavoidable Delays .................................................... 40
(viii)
LEASE OF PHASE 1A
THIS LEASE, dated as of August 26, 1983, by and between the
THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF LOS ANGELES, CALIFORNIA, a
public body corporate and politic (which, together with any successor public
body or officer hereafter designated by or pursuant to law is hereinafter called
"Lessor") established pursuant to Chapter 2 of the Community Redevelopment Law
of the State of California, and having its office at Suite 800, 354 South Spring
Street, Los Angeles, California 90013 and BUNKER HILL ASSOCIATES, a general
partnership (hereinafter called "Tenant") (the partners of which are California
Plaza Associates, a California limited partnership ("CPA") [formerly known as
Bunker Hill Associates, the sole general partner of which is Cadillac
Fairview/California, Inc., a California corporation ("C-F")]; and Metropolitan
Structures, an Illinois general partnership ("Structures") [the partners of
which are Metco Properties, an Illinois limited partnership, and Metropolitan
Life Insurance Company, a New York corporation ("Metropolitan")]), and having
its office at Suite 1115, 2029 Century Park East, Los Angeles, California 90067,
with reference to the following Recitals:
RECITALS:
A. All capitalized terms used herein and not defined in
the Article where first used in this Lease are defined in Article 40 or the
definition of such capitalized term is referenced in Article 40.
B. Lessor is the owner of that certain unimproved real
property described in Exhibit A (hereinafter referred to as the "Site"), which
shall be separately leased or sold and developed in eight phases, which are
separately identified on Exhibit A-l attached hereto as Phase 1A, Phase IB,
Phase 1C, Phase 2A, Phase 2B, Phase 2C, Phase 3A and Phase 3B (hereinafter
referred to, respectively, by such capitalized names, collectively as "Phases,"
and generically as "a Phase") which Phases shall be separately and independently
leased or sold and developed pursuant to the terms of the Disposition
Agreement (hereinafter defined).
C. Lessor (therein designated as "Agency") and Tenant
(therein designated as "Developer") have entered into that certain DISPOSITION
AND DEVELOPMENT AGREEMENT dated as of February 5, 1982, which Disposition
Agreement
was modified by that certain First Implementation Agreement between Bunker Hill
Associates, a California limited partnership which was the predecessor in
interest of Tenant ("Old Bunker") and Agency executed by Agency on June 16, 1982
and that certain Third Implementation Agreement between Agency and Old Bunker
executed by Agency on September 25, 1982. It is proposed to be modified by that
certain Second Implementation Agreement between Old Bunker, Agency and the
Museum of Contemporary Art (the "Museum") executed by Old Bunker on October
22, 1982, but which has not yet been executed by Agency or Museum. The
Disposition Agreement has been further amended by that certain First Amendment
to Disposition and Development Agreement between Lessor and Tenant dated as of
May 31, 1983. The Disposition and Development Agreement as modified by the First
and Third Implementation Agreements and the First Amendment to Disposition and
Development Agreement (and when, as and if the Second Implementation Agreement
is fully executed, as modified by the Second Implementation Agreement) is
collectively referred to as the "Disposition Agreement." The Disposition
Agreement provides, in part, that Lessor shall successively convey each of the
Phases of the Site to Developer by lease or deed and establishes a Scope of
Development and Schedule of Performance for the construction by Developer of
certain Improvements on the Site, and in particular for the construction of the
Original Improvements on Phase 1A.
D. Concurrently with the execution and delivery hereof
Lessor and Tenant have executed and delivered that certain RECIPROCAL EASEMENT
AGREEMENT (hereinafter called "REA") which provides for certain rights of access
and use by and between various portions of the Site as developed pursuant to the
Disposition Agreement and for the operation and payment of the costs of
operation of certain facilities including, but not limited to, the parking
facilities, the Entertainment Center and the Angel's Flight Funicular Railway to
be located on the Site. It is hereby agreed by and between Lessor and Tenant
that the REA shall govern and be binding upon all parties which shall succeed to
any interest in any portion or portions of the Site, whether by lease or any
other conveyance, succession upon default, foreclosure, or operation of law
unless and until every person, entity, agency, or corporation having or holding
any interest in the entire Site (including without limitation, any interest
arising by way of lease or sublease or mortgage or deed of trust) shall execute
and acknowledge a declaration of termination of the REA and cause such to be
duly recorded in Official Records, County of Los Angeles, State of California.
2
E. Prior to the execution and delivery hereof, Tenant
and the Los Angeles Museum of Contemporary Art, a corporation established for
the purpose of establishing and operating a world class modern art museum in the
City of Los Angeles (hereinafter called the "Museum Corporation") have executed
and delivered an agreement (hereinafter called the "Museum Agreement")
concerning the design, construction and operation of a museum of modern and
contemporary art and related facilities (hereinafter called the "Museum
Building") within certain airspace described in Exhibit B (the "Museum
Airspace") located within Phase 1A with a form of lease (the "Museum Lease")
attached to the Disposition Agreement as Attachment No. 10(A) between Lessor as
landlord and the Museum Corporation as lessee. As provided in the Museum
Agreement and Section 1.4 hereof, upon completion of the construction of the
Museum Building by Tenant, Tenant shall surrender and quitclaim the Museum
Airspace and support and other easements therefor as provided in the REA and the
reversionary interest in the Museum Building to Lessor and quitclaim the Museum
Building to the Museum Corporation for the term of the Museum Lease and Lessor
will thereupon lease the Museum Airspace and support and other easements
therefor as provided in the REA to the Museum Corporation pursuant to the Museum
Lease.
NOW, THEREFORE, in consideration of the above recitals and the
covenants herein, the parties agree as follows:
ARTICLE 1
LEASE OF PROPERTY, TERM OF LEASE
1.1 Leasing Clauses. Upon the conditions, limitations,
covenants and agreements set forth below, and for a term commencing as
hereinafter set forth, Lessor hereby leases to Tenant and Tenant hereby leases
from Lessor Phase 1A, which Phase 1A constitutes the land more fully described
in Exhibit A-2 attached hereto;
TOGETHER WITH any buildings, structures, facilities,
fixtures, equipment, paving, surfacing, sewers, storm drains and other
improvements, if any, which may now be located thereon, and the appurtenances
thereof;
TOGETHER WITH all right, title and interest of Lessor
now owned or hereafter acquired in, over, under and to any land lying within or
under the land described in Exhibit A-2 or the right-of-way of any street, open
or proposed, dedicated or vacated, adjoining the land described in Exhibit A-2
and any sidewalks, alleys and
3
strips and gores of land adjacent to or used in connection with the land
described in Exhibit A-2;
SUBJECT, HOWEVER, to: (a) the matters reflected in
Exhibit C hereto, and (b) such other matters with respect to the land described
in Exhibit A-2 as Tenant shall cause or suffer (collectively the "Permitted
Exceptions").
1.2 Term.
Lessor hereby leases Phase 1A to Tenant subject to the
provisions of this Lease for a term of 99 years, which shall commence at 12:01
A.M. upon August 26, 1983 and shall expire at 11:59 P.M. on August 25, 2082
("Lease Term").
1.3 Modification. In the event an Institutional Investor
which has either issued a commitment to lend money upon the security of the
leasehold estate under this Lease or otherwise indicated it proposes to become a
Mortgagee, requests in writing any modification in this Lease, Lessor shall
within 30 days following the submission to it of such written request consent to
such request or state in writing its reason for refusal of such request in such
adequate detail that Tenant can know what changes in the request will make it
acceptable to Lessor; provided that Lessor shall not be obligated or required
under any circumstances to make changes which alter its substantive rights to
its detriment in any material way. In this case, as in the case of all other
provisions of this Lease where its consent, approval, agreement or other action
is required, Lessor covenants that it will be bound by a covenant of good faith
and fair dealing and agrees that it shall not unreasonably refuse, withhold or
delay its consent, approval, agreement or other action where requested. In this
case, as in the case of all other provisions of this Lease in which a specific
time period is prescribed for the approval by either Tenant or Lessor of a
particular item, if such approval (or disapproval) is not forthcoming within the
time specified, the item requiring approval shall be deemed approved by the
appropriate party.
1.4 Surrender of Museum Airspace and Museum Building.
Upon the Completion Date of the Museum Building Tenant shall quitclaim to Lessor
its interest under this Lease in the Museum Airspace and support and other
easements therefor as provided in the REA and the reversionary interest in the
Museum Building to Lessor and quitclaim the Museum Building to the Museum
Corporation
4
for the term of the Museum Lease and concurrently Lessor shall execute and
deliver to the Museum Corporation the Museum Lease as contemplated in the
Disposition Agreement and the Museum Agreement. Tenant shall covenant that the
Museum Airspace and the Museum Building are at the time of such quitclaim free
of any Mortgage or of any other lien, conveyance or assignment made or suffered
by Tenant other than mechanic's liens which are the subject of Permitted
Contests and the lien of unpaid real estate taxes (except that with respect to
such taxes, if any, as are a lien on the Museum Airspace which lien has not
been cancelled as provided in Revenue and Taxation Code Section 5097, Tenant
shall be obligated to pay such taxes as provided in Article 9). The Museum
Airspace and Museum Building shall be expressly subject to the REA and, to the
extent applicable thereto, the exceptions listed in Exhibit C hereto. At such
time as Tenant quitclaims the Museum Airspace to Lessor, Lessor shall have the
right to obtain at its own expense a policy of title insurance for the Museum
Airspace naming Lessor as insured. From and after quitclaim of the Museum
Airspace and the reversionary interest in the Museum Building to Lessor and the
quitclaim of the Museum Building to the Museum Corporation the term "Phase 1A"
shall not include the Museum Airspace.
ARTICLE 2
RENT
2.1 Holding Rent - During the Holding Period Tenant shall
pay to Lessor as the entire rent for the entire Holding Period for Phase 1A the
sum of $500,000 ("Holding Rent"). The Holding Rent shall be paid in equal
monthly installments of $11,904.76 in advance on the first day of each calendar
month during the Holding Period; provided that upon the termination of the
Holding Period Tenant shall make a final payment of Holding Rent to Lessor so
that the total Holding Rent equals $500,000.
Tenant shall be entitled to credit the sum of $250,000
heretofore paid to Lessor against the monthly installments of Holding Rent until
Tenant has been credited with payment of $250,000 of Holding Rent.
2.2 Base Rent - During the term of this Lease, but after
the expiration of the Holding Period, Tenant shall pay to Lessor a rent ("Base
Rent") monthly in advance on the first day of each month ("Rent Payment
5
Date") at the rate of $600,000 per annum, payable in equal monthly amounts of
$50,000. In the event that the Holding Period terminates on other than the first
day of a month, Tenant shall pay Base Rent for the balance of that month in an
amount equal to $50,000 divided by the number of days in that month, which
quotient then shall be multiplied by the number of days in the balance of that
month for which Base Rent is payable.
2.3 Escalation Rent - During the term of the Lease
commencing in the first Adjustment Year, Tenant shall pay to Lessor, in addition
to the Base Rent, an escalation rent (the "Escalation Rent"). The annual
Escalation Rent shall be payable monthly in advance on each Rent Payment Date in
an amount equal to one-twelfth of the annual Escalation Rent. The Escalation
Rent shall increase in each subsequent Adjustment Year. The Escalation Rent as
adjusted in such subsequent Adjustment Year will be due each Fiscal Year
thereafter until the next Adjustment Year.
(a) The annual Escalation Rent which is to become due
with respect to the first Adjustment Year is to be the higher of (1) 30% of the
Base Rent or (2) that percentage of the Base Rent as is equal to the percentage
increase, if any, of the average annual Escalation Rent Net Cash Flow for the
two Fiscal Years immediately preceding the first Adjustment Year above the
average annual Pro Forma Escalation Rent Net Cash Flow for the fifth and sixth
Fiscal Years preceding the first Adjustment Year; provided however, that clause
(2) shall not cause the total of the Base Rent plus the Escalation Rent in any
Fiscal Year to exceed 5% of Net Operating Income in such Fiscal Year but in no
event shall this act as a limitation on the payment of Base Rent. The amount, if
any, that the amount of Base Rent plus Escalation Rent calculated by clause (2)
above exceeds 5% of Net Operating Income shall not cumulate to be due in any
subsequent Fiscal Year.
(b) In each subsequent Adjustment Year, the annual
Escalation Rent will become (until the next Adjustment Year) the higher of (1)
the total of (i) the previous annual Escalation Rent plus (ii) 20% of the total
of the Base Rent and the previous annual Escalation Rent or (2) that percentage
of the total of the Base Rent plus the previous annual Escalation Rent as is
equal to the percentage increase of the average annual Escalation Rent Net Cash
Flow for the two Fiscal Years immediately preceding such Adjustment Year over
the average annual Escalation Rent Net Cash Flow during the two Fiscal Years
6
immediately preceding the prior Adjustment Year; provided, however, that clause
(2) shall not cause the total of the Base Rent plus the Escalation Rent in any
Fiscal Year to exceed 5% of Net Operating Income in such Fiscal Year but in no
event shall this act as a limitation on the payment of Base Rent. The amount, if
any, that the amount of Base Rent plus Escalation Rent calculated by clause (2)
immediately above exceeds 5% of Net Operating Income shall not cumulate to be
due in any subsequent Fiscal Year.
(c) In the event Tenant gives notice to Lessor that 5% of
the Net Operating Income is reasonably expected to be less than the Base Rent
and the Escalation Rent which would be due under clause (2) of whichever of
subsections (a) or (b) of this section is then applicable in calculating
Escalation Rent, Tenant may, from time to time as provided in such notice,
reduce the amount of Escalation Rent to an amount which, together with the
monthly installment of the Base Rent will, when paid monthly, equal 5% of the
Net Operating Income as estimated and Tenant will from time to time adjust such
payment of Escalation Rent if Tenant determines that such estimate is less than
the actual 5% of Net Operating Income, but in any event not less than the amount
required under clause (1) of such subsections, whichever is applicable.
(d) The increased annual Escalation Rent calculated under
clause (1) of whichever of subsections (a) or (b) above is then applicable shall
be payable monthly, commencing on the first Rent Payment Date in each Adjustment
Year until the payment, if any, provided in the next sentence is made. At the
time Tenant delivers to Lessor the Annual Accounting Statement (as provided in
Section 2.5) it shall pay to Lessor the accrued but unpaid Escalation Rent, if
any, due for the portion of such Adjustment Year which has already occurred as a
result of the application of clause (2) of whichever of subsections (a) or (b)
above is then applicable.
2.4 Participation Rent - During the term of this Lease,
Tenant shall pay to Lessor in addition to the Base Rent and the Escalation Rent,
a percentage rent (the "Participation Rent"):
(a) With respect to each Fiscal Year through the Fiscal
Year preceding the first Adjustment Year an amount equal to 10% of Participation
Rent Net Cash Flow for such Fiscal Year; and
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(b) With respect to each Fiscal Year commencing with the
first Adjustment Year an amount equal to 15% of Participation Rent Net Cash Flow
for such Fiscal Year.
(c) At the time Tenant delivers to Lessor the Annual
Accounting Statement for each Fiscal Year (as provided in Section 2.5) it shall
pay to Lessor the Participation Rent with respect to such Fiscal Year. Tenant
shall be entitled to deduct from Participation Rent which would otherwise be due
hereunder the amount of any Minority Business Enterprise Credit, which has not
previously been deducted from Participation Rent.
2.5 Annual Accounting Statements. Tenant shall furnish to
Lessor as soon as practicable after the end of each Fiscal Year, and in any
event within 120 days thereafter, a detailed statement of income and expense
("Annual Accounting Statement") from Phase 1A prepared by Tenant and certified,
at Tenant's expense, by an independent certified public accountant who is a
member of the American Institute of Certified Public Accountants, and setting
forth in reasonable detail the computation of (a) Participation Rent, if any,
for such Fiscal Year, (b) the amount of the Escalation Rent, if any, due for
such Fiscal Year, (c) the amount of the Supplemental Rent, if any, due for such
Fiscal Year, and (d) such other information as Lessor shall have specified by
notice to Tenant prior to such Fiscal Year as shall be reasonably necessary for
the determination of Escalation Rent, Participation Rent and Supplemental Rent.
Lessor and its representatives shall have, at all reasonable times, the right to
inspect all books of account of Tenant and of any person whose books are subject
to inspection by Tenant or its representatives (and any other material
reasonably relating thereto) and the right to cause such books of account to be
audited by independent public accountants selected by Lessor as often as may be
reasonably requested by Lessor. Each such periodic audit or inspection shall be
at the expense of Lessor unless after such an inspection or audit it is
determined by agreement between Lessor and Tenant or by arbitration that the
actual Escalation Rent, Participation Rent and Supplemental Rent due for such
period exceeds by 5% or more the Escalation Rent, Participation Rent and
Supplemental Rent for such period paid by Tenant, in which case such audit or
inspection shall be at Tenant's expense; provided, however, that the amount of
Escalation Rent, Participation Rent and Supplemental Rent disclosed to be due by
any audit or inspection conducted by Lessor shall not necessarily be
determinative of the Escalation Rent, Participation Rent and Supplemental Rent
due hereunder for
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any period. Any additional Escalation Rent, Participation Rent or Supplemental
Rent which is ultimately determined to be payable shall be paid to Lessor on the
Rent Payment Date occurring immediately after any such ultimate determination,
with interest at the annual rate of five percent (5%) over the discount rate of
the Federal Reserve Bank of San Francisco (but in no event exceeding the maximum
rate per annum from time to time permitted by applicable law) (the "Interest
Rate"), from the 120th day after the end of the Fiscal Year with respect to
which such Escalation Rent, Participation Rent or Supplemental Rent is due. Any
Escalation Rent, Participation Rent or Supplemental Rent which has been overpaid
as a result of a demand by Lessor, along with interest at the Interest Rate from
the date of overpayment until the date of credit, as hereinafter provided, shall
be credited first the interest, then the principal against any obligation of
Tenant to Lessor as of the next successive Rent Payment Date or Dates until such
overpayment and interest thereon is fully credited against Tenant's obligations
to Lessor.
2.6 Net Rent; Manner of Payment. Base Rent, Escalation
Rent, Participation Rent, Additional Rent, Supplemental Rent, Holding Rent and
any other sums payable to Lessor hereunder shall be paid in such coin or
currency (or, subject to collection, by check payable in such coin or currency)
of the United States of America as at the time shall be legal tender for the
payment of public and private debts, at the office of Lessor located at the
address of Lessor set forth first above in this Lease or at such place and to
such Person as Lessor from time to time may designate. Holding Rent, Base Rent,
Escalation Rent, Supplemental Rent and Participation Rent shall be absolutely
net to Lessor so that this Lease shall yield to Lessor the full amount of the
installments of Holding Rent throughout the Holding Period and Base Rent,
Escalation Rent, Supplemental Rent and Participation Rent throughout the
remainder of the term of this Lease without offset or deduction, other than (a)
the credit for overpaid Escalation Rent, overpaid Participation Rent and
overpaid Supplemental Rent as provided in Section 2.5,(b) as to Escalation Rent,
Supplemental Rent and Participation Rent (but not Holding Rent or Base Rent)
subject to the rights of a Mortgagee or its successors in interest as provided
in Sections 21.2 and 21.3 hereof and (c) as to Participation Rent, the Minority
Business Enterprise Credit as provided in Section 2.4. Nothing in this Section
or elsewhere in this Lease shall obligate Tenant to pay or reimburse Lessor for
any income, franchise, capital or other tax or levy, however denominated, on or
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measured by Lessor's income or revenues whether from this Lease or otherwise.
2.7 Additional Rent. Tenant shall also pay to Lessor from
time to time as provided in this Lease an additional rent ("Additional Rent").
Additional Rent shall include (a) all other amounts and obligations which Tenant
herein assumes or agrees to pay; provided, however, that if under the terms and
conditions set forth in this Lease, Tenant is to satisfy such obligation to a
Person other than Lessor, Lessor shall have no claim to such amount as
Additional Rent unless Lessor, to protect its rights after first giving notice
to Tenant as herein provided and Tenant failing thereafter within the time
herein provided to make such payment, shall have satisfied such obligation and
demanded reimbursement from Tenant, (b) interest at the Interest Rate on such of
the amounts and obligations as are payable to Lessor pursuant to the foregoing
clause (a) and are not paid within 10 days after the due date (or, if a demand
therefor is required by the terms of this Lease, then within 10 days after the
date of such demand), such interest to accrue from the due date or the date of
such demand, whichever is later, until payment thereof, and (c) interest at the
Interest Rate on all installments of Holding Rent, Base Rent, Escalation Rent,
Supplemental Rent and Participation Rent not paid within ten days after the due
date, such interest to accrue from the due date thereof (except as to those
portions of Escalation Rent, Supplemental Rent and Participation Rent payable as
provided in the last sentence of Section 2.5) until payment. In the event of any
failure on the part of Tenant to pay any Additional Rent, Lessor shall have all
the rights, powers and remedies provided for in this Lease in the case of
non-payment of Holding Rent or Base Rent.
2.8 Supplemental Rent. Tenant shall make the following
payments ("Supplemental Rent") to Lessor: (a) on the date of this Lease
$1,000,000; and (b) as provided in the next sentence, $363,000 plus interest
thereon at the rate of 10% per annum (not compounded) from the date of this
Lease until such $363,000 sum is paid. The amount payable under clause (b) shall
be paid only to the extent that 50% of the Supplemental Rent Net Cash Flow
(calculated on a cumulative basis through the end of a Fiscal Year) exceeds
$4,500,000 multiplied by the number of years and fractions of years from the
Completion Date through the end of such Fiscal Year. If 50% of Supplemental Rent
Net Cash Flow is sufficient to pay only part of the amount payable under clause
(b), the payment shall be credited against interest first, and then against the
$363,000 sum. The unpaid balance with interest shall
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be payable in the same manner out of 50% of Supplemental Rent Net Cash Flow for
successive Fiscal Years. The Supplemental Rent Payment Date with respect to each
Fiscal Year shall be the first Rent Payment Date following the delivery of the
Annual Accounting Statement with respect to such Fiscal Year.
ARTICLE 3
DEVELOPMENT AND IMPROVEMENT
3.1 Lessor's Improvements; Lessor's Payments to Tenant.
Lessor shall install and maintain the improvements required of it under the
Disposition Agreement. Lessor shall have no responsibility to construct or
maintain any improvements located on or off Phase 1A or to remove any
improvements located on or off Phase 1A except as provided in the Disposition
Agreement. Lessor shall pay to Tenant costs incurred by Tenant for installation
concurrently with Phase 1A and on adjacent property of certain improvements
forming a portion of the Future Transit Tunnel and Station and amenities and
appurtenances thereto as provided in the Disposition Agreement and Attachments
thereto, including the Future Transit Tunnel and Station Construction Agreement
attached thereto as Attachment No. 8. Lessor has or will deliver to Tenant an
agreement which entitles Tenant to enter onto the adjacent property to Phase 1A
to construct portions of the Future Transit Tunnel and Station, but a default
thereunder or under the Future Transit Tunnel and Station Construction Agreement
by Tenant shall not be a default under this Lease.
3.2 Tenant's Improvements.
(a) Tenant shall build on Phase 1A the improvements
described in the Scope of Development (Attachment No. 3 to the
Disposition Agreement) and in accordance with the final Construction
Drawings approved by Lessor in accordance with the Disposition
Agreement (the "Original Improvements"). The final plans and
specifications for the Original Improvements shall be prepared by
Tenant and approved by Lessor pursuant to the Disposition Agreement
(such plans and specifications are herein referred to as the "Approved
Plans"). Any material modifications to the Approved Plans shall be in
writing and made pursuant to Section 3.3 hereof.
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(b) Title to the Phase 1A Improvements (except as
quitclaimed pursuant to Section 1.4) shall remain in Tenant until
termination or expiration of this Lease for any reason. Subject to the
provisions of Section 22.4, upon the termination or expiration of this
Lease all of the Phase 1A Improvements shall be surrendered to Lessor
without any compensation therefor to Tenant.
3.3 Proposed Changes. If Tenant desires to make any
material changes in the Approved Plans which are not inconsistent in a material
respect with the Scope of Development as provided in the Disposition Agreement,
Tenant shall submit such proposed changes to Lessor for its approval as provided
in the Disposition Agreement. The provisions of the Disposition Agreement
relating to approval or rejection, time limits for action and resubmissions of
proposed modifications shall apply until such modifications have been approved
by Lessor. No approval given by Lessor hereunder shall relieve Tenant from
compliance with state and local laws and regulations in the construction of the
Phase 1A Improvements, but Lessor shall assist Tenant in obtaining any
governmental approvals needed.
3.4 Certifying Approval. Lessor shall, upon request of
Tenant, furnish certificates upon which Tenant, any Mortgagee or Occupancy
Tenant shall be entitled to rely, evidencing the approval of the Approved Plans
and any changes in the Schedule of Performance or Scope of Development and
stating that such meet the requirements of Lessor, this Lease and the
Disposition Agreement and whether or not the Commencement of Construction of
Phase 1A has occurred, and whether or not construction of the Original
Improvements has been substantially completed and if not, specifying in
reasonable detail what Lessor believes remains to be completed.
3.5 Commencement of Construction.
Commencement of Construction is to occur within thirty (30)
days after execution and delivery of this Lease, subject to extension for
Unavoidable Delays.
3.6 Certificate of Completion. After substantial
completion of the Museum Building or of the rest of the Original Improvements in
accordance with the provisions of the Disposition Agreement and this Lease, and
within 30 days after written request by Tenant or Mortgagee, Lessor shall
furnish Tenant or Mortgagee with a Certificate of Completion which shall
constitute (and
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shall so state) a conclusive determination by Lessor that: (a) Tenant has fully
complied with all obligations under the Disposition Agreement and this Lease to
construct the Museum Building or the rest of the Original Improvements; (b)
Tenant has complied with all obligations affecting the Museum Airspace or of the
rest of Phase 1A arising to the date of such Certificate of Completion under the
Disposition Agreement and this Lease; and (c) the Museum Building or the rest of
the Original Improvements were constructed in compliance with the Disposition
Agreement, this Lease, and the related documents outlined in the Recitals,
above. Lessor shall not refuse to issue the Certificate of Completion with
respect to Museum Building or the rest of the Original Improvements because
there is a default as a result of failure or refusal of Developer to perform its
obligations with respect to the other or with respect to any or all of any of
the other Phases, whether such obligations arise under the Disposition Agreement
or otherwise. The Certificate of Completion shall be in such form as will enable
it to be recorded in the office of the Recorder of Los Angeles County,
California.
3.7 Refusal to Certify. If Lessor shall refuse or fail to
provide the Certificate of Completion in accordance with the provisions of this
Article, it shall, within 30 days after written request therefor by Tenant or
Mortgagee, provide Tenant or Mortgagee with a written statement indicating in
adequate detail in what respect Tenant has failed to complete the Museum
Building or the rest of the Original Improvements (whichever it claims to be the
case) in accordance with the provisions of the Disposition Agreement and this
Lease and what measures or acts must, in the opinion of Lessor, be taken or
performed by or on behalf of Tenant in order to obtain such Certificate of
Completion for the Museum Building or the rest of the Original Improvements,
whichever the case may be.
If the reason for such refusal is confined to the immediate
availability of materials for landscaping or of specific items which do not
prevent substantial completion, Lessor must issue the Certificate of Completion
upon Tenant's or Mortgagee's written promise to complete the items within a
reasonable time to be mutually agreed and upon the posting of a bond with Lessor
or furnishing to Lessor a letter of credit from a bank reasonably satisfactory
to Lessor or other evidence reasonably satisfactory that Tenant or Mortgagee has
committed funds in an amount representing the fair value of the work not yet
completed. If Lessor shall have
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failed to provide such written statement within said 30-day period, Tenant or
Mortgagee at the end of said 30-day period shall be automatically deemed
entitled to the Certificate of Completion. The date of said Certificate of
Completion or the day on which Tenant or Mortgagee is automatically deemed
entitled to the Certificate of Completion is the "Completion Date."
The Certificate of Completion shall not constitute evidence of
compliance with or satisfaction of any obligation of Tenant to any holder of a
mortgage, or any insurer of a mortgage securing money loaned to finance the
Original Improvements, or any part thereof. The Certificate of Completion shall
not constitute the notice of completion referred to in California Civil Code
Section 3093.
3.8 Phase 1A Improvements Defined. All buildings,
structures or improvements from time to time existing on Phase 1A, including
without limitation the Original Improvements and any alterations or additions
thereof, except for Tenant's Equipment, are collectively referred to as the
"Phase 1A Improvements."
3.9 Dedications and Grants of Public Easements; Maps and
Instruments. From time to time during the term hereof, Tenant may, for the
purpose of developing Phase 1A pursuant to the Disposition Agreement, request
Lessor to execute, acknowledge and deliver (collectively "Maps and Instruments")
(a) such instruments of dedication, grants of easements, and the like to public
authorities, or public utilities and (b) such tentative maps, final maps, parcel
maps, declarations of easements, conditions, covenants and restrictions and
other instruments as may be appropriate for the purpose of effecting the
development of Phase 1A and the leasing thereof for the uses and purposes
contemplated in this Lease and the Disposition Agreement. Tenant shall keep
Lessor informed concerning the Maps and Instruments so that Lessor shall be able
to comment thereon and Tenant shall make such reasonable modifications therein
as Lessor shall request so long as they are consistent with and will enable
Tenant to carry out the development contemplated in the Approved Plans and
all Legal Requirements. Lessor shall within 30 days after the delivery of any
Maps or Instruments to it by Tenant for execution, execute, acknowledge and
deliver such document to Tenant if it is consistent with drafts thereof
submitted to Lessor by Tenant with such changes as Lessor shall have reasonably
requested. If Lessor shall not execute, deliver and acknowledge such Maps or
Instruments it shall within such 30 day period specify in writing in
14
what respects said Maps or Instruments are not consistent with the Approved
Plans and Legal Requirements and what changes will make them acceptable to
Lessor. Tenant shall not file or record, nor allow the filing or recording, of
any tentative maps, final maps, parcel maps or condominium plans without first
obtaining Lessor's signature thereto or approval thereof.
3.10 Nondiscrimination. Tenant herein covenants by and for
itself, its successors and assigns, and all persons claiming under or through
Tenant, that this Lease is made and accepted upon and subject to the following
conditions:
That there shall be no discrimination against or segregation
of any person or group of persons on account of race, color, creed,
religion, sex, marital status, national origin or ancestry, in the
leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment
of the premises herein leased nor shall Tenant, or any person claiming
under it establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy, of tenants, lessees, sublessees,
subtenants or vendees in the premises herein leased.
ARTICLE 4
INTENTIONALLY OMITTED
ARTICLE 5
CONSOLIDATION OF LEASES
5.1 Consolidation of Leases. If Tenant under this Lease
and tenant(s) under one or more leases of any other Phases of the Site shall
with the consent of the respective Mortgagees of the leases of such Phases
request consolidation of their respective leases into a single lease, Lessor
hereby agrees to permit such consolidation and to execute a consolidated lease
providing a single Base Rent and property description and otherwise on
substantially the same terms as are provided in the separate leases which are
consolidated.
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ARTICLE 6
CONDITION AND USE OF PHASE
6.1 Use of the Leased Property. Phase 1A (other than the
Museum Airspace) may be used for any lawful purpose so long as that use is in
conformity with and pursuant to the Disposition Agreement. Tenant shall use and
occupy Phase 1A, and shall in any conveyance require that all sublessees and
purchasers shall use and occupy Phase 1A or any portion of Phase 1A, in a lawful
manner and comply with, and shall maintain Phase 1A or any portion thereof in
compliance with all Legal Requirements applicable thereto and to the use
thereof.
6.2 Compliance of Phase with Legal Requirements. If
other than as a result of a Taking, Phase 1A may not under all Legal
Requirements from time to time existing be used for a material and substantial
period of time for the purposes contemplated in the Disposition Agreement and
the Approved Plans then Lessor shall assist Tenant in seeking to obtain changes
in the Legal Requirements. If such action is unsuccessful, Tenant shall have the
right with the consent of the Mortgagee, at Tenant's option, either (a) to
terminate this Lease and Tenant's obligations hereunder if compliance with such
Legal Requirements would involve material changes in the Scope of Development or
(b) to require that the Base Rent, Escalation Rent and Participation Rent be
appropriately adjusted to reflect the reduction in value, if any, of Phase 1A as
a result of complying with the applicable Legal Requirements. Such adjustment to
Base Rent and Escalation Rent shall be determined by mutual agreement between
Lessor and Tenant. If no agreement is reached within 30 days after demand by
Tenant for such adjustment, then such adjustment to Base Rent and Escalation
Rent shall be made by appraisal as provided in Article 39 if, and only if,
requested by Tenant.
ARTICLE 7
MAINTENANCE AND REPAIRS
7.1 Maintenance. Tenant shall, at its expense, maintain
the Phase 1A Improvements and, to the extent imposed by law on adjacent property
owners, the adjacent parkways, sidewalks and curbs in good and clean order and
condition, subject to reasonable wear and tear. Tenant
16
have been approved by Lessor. Prior to making any such alteration or
addition, Lessor shall have (i) received at least 90 days prior written
notice from Tenant of the proposed alteration or addition and (ii)
approved in writing the plans and specifications provided, however,
that within 30 days after submission Lessor shall advise Tenant of its
approval, or of its disapproval, setting forth in detail the reasons
for disapproval, and, in the event of disapproval, that resubmissions
may be made in a like manner with the same provisions with regard to
approval or disapproval.
8.2 Demolition and Reconstruction. Tenant shall have the
right at any time and from time to time during the Lease Term, at its expense,
to demolish part or all of the Phase 1A Improvements then existing; provided,
however, that:
(a) Tenant shall forthwith construct upon Phase 1A a
structure or structures having at least the then fair market value, the
quality and the parking facilities of the Phase 1A Improvements, or
part thereof, then demolished; provided further, that after the 51st
anniversary of the commencement of the Lease Term, Tenant may construct
upon Phase 1A any structure which will provide, in the reasonable
judgment of Lessor, sufficient income to pay the Base Rent, Escalation
Rent and Participation Rent reasonably equivalent to that payable
immediately prior to such demolition and reconstruction;
(b) Prior to the commencement of any such demolition,
Lessor shall have (i) received at least 90 days' prior written notice
from Tenant of the proposed demolition and construction, (ii) approved
in writing the preliminary plans and specifications for the proposed
new Phase 1A Improvements, prepared by an architect selected by Tenant
and satisfactory to Lessor, provided, however, that within 30 days
after submission, Lessor shall advise Tenant of its approval, or of its
disapproval, setting forth in detail the reasons for disapproval, and,
in the event of disapproval, that resubmission may be made in a like
manner with the same provisions with regard to approval or disapproval
and (iii) received, at least 90 days prior to the commencement of any
such demolition, reasonably satisfactory evidence that Tenant has or
will have available the financing needed for payment of the costs of
demolition and reconstruction; and
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(c) any such demolition and the construction of new Phase
1A Improvements in connection therewith shall comply with the
provisions of subsections (b) and (c) of Section 8.1.
Tenant shall not demolish any portion of the Phase 1A Improvements other than
strictly in accordance with the provisions of this Section 8.2, without the
prior written consent of Lessor, except for such minor demolitions in connection
with alterations or additions as are performed in compliance with the provisions
of Section 8.1.
ARTICLE 9
PAYMENT OF IMPOSITIONS AND
SUBSTITUTE IMPOSITIONS
9.1 Payment, Evidence of Payment. As required in
California Health and Safety Code Section 33673, Phase 1A shall be assessed and
taxed in the same manner as privately owned property and Tenant shall pay taxes
upon the assessed value of Phase 1A and not merely the assessed value of
Tenant's interest in this Lease. Subject to Article 12 relating to contests,
Tenant will pay all Impositions prior to delinquency, provided that: (a) if, by
law, any Imposition may, at the option of the person on whom it is imposed, be
paid in installments. Tenant may exercise such option, and shall pay all such
installments (and interest, if any) becoming due during the term of this Lease
as the same respectively become due and before any further interest or any
penalty, fine or cost may be added thereto; and (b) any Imposition relating to a
fiscal period of the taxing authority, a part of which is included within the
term of this Lease and a part of which extends beyond such term, shall be
apportioned between Lessor and Tenant as of the expiration of such term. Upon
demand made from time to time by Lessor with respect to each payment of
Impositions before it becomes delinquent, Tenant will furnish to Lessor for
inspection, within ninety (90) days after the date when any Imposition (unless
being contested in conformity with Article 12) would become delinquent, official
receipts of the appropriate taxing authority, or other proof satisfactory to
Lessor evidencing the payment of such Imposition.
9.2 Substitute Impositions. In the event any Substitute
Imposition shall be levied during the term of this Lease Tenant shall be
obligated to pay the amount thereof (but not including penalties or interest
assessed
19
because of Lessor's late payment or other negligence) to Lessor from time to
time upon receipt of a billing therefor from Lessor; provided that such billing
shall be made not earlier than the date such Substitute Imposition is due and
paid by Lessor; provided further that along with such billing Lessor shall
deliver to Tenant an explanation in reasonable detail of the basis on which such
billing constitutes a Substitute Imposition and the calculation of the amount of
such billing.
ARTICLE 10
COMPLIANCE WITH REQUIREMENTS
Subject to Article 12 relating to contests, and subject to
Article 8 relating to alterations, Tenant at its expense will within a
reasonable period of time (a) comply with all Legal Requirements and Insurance
Requirements, and (b) comply with any instruments of record at the time in force
affecting Phase 1A or any part thereof.
ARTICLE 11
LIENS
Tenant will not directly or indirectly create or permit to be
created or to remain, and will discharge any mortgage, lien, security interest,
encumbrance or charge on, pledge of or conditional sale or other title retention
agreement with respect to Phase 1A or any part thereof or Tenant's interest
therein, other than (a) this Lease and Occupancy Leases, (b) a Mortgage or
Mortgages as provided in Section 23.1, (c) liens for Impositions not yet
payable, or payable without the addition of any fine, penalty, interest or cost
for non-payment, or being contested as permitted by Article 12, (d) Permitted
Exceptions, and (e) liens of mechanics, materialmen, suppliers or vendors, or
rights thereto, for sums which under the terms of the related contracts are not
at the time delinquent or which are being contested as permitted by Article 12.
20
terms and conditions of this Lease (and, until the Completion Date, the
Disposition Agreement, but only insofar as it relates to Phase 1A) on its part
to be performed or complied with, shall quietly have and enjoy Phase 1A and
shall not be hindered or molested by Lessor or anyone claiming by, through or
under Lessor or anyone claiming a prior title or interest in Tenant's enjoyment
of Phase 1A.
ARTICLE 17
TENANT'S EQUIPMENT
All Tenant's Equipment shall be the property of Tenant. Tenant
will immediately repair at its expense all damage to Phase 1A caused by any
removal of Tenant's Equipment therefrom, whether effected by Tenant, or any
other Person. Lessor shall not be responsible for any loss of or damage to
Tenant's Equipment.
ARTICLE 18
INSURANCE
18.1 Insurance During Term. During the term of this Lease,
except to the extent otherwise indicated in this Article, Tenant will, at its
sole cost and expense, keep and maintain or cause to be kept and maintained:
(a) Comprehensive public liability insurance naming both
Lessor and Tenant as assureds against claims for personal injury or
death or property damage occurring upon, in or about Phase 1A, or the
Phase 1A Improvements or upon, in or about the adjoining land, streets
and passageways thereof, such insurance to (i) afford protection in an
amount not less than $1,000,000 combined single limits which minimum
required amount shall be adjusted every five years on the anniversary
date of this Lease using as an index for such adjustment the Composite
Construction Cost Index (Monthly) as published in U.S. Department of
Commerce "Survey of Current Business" and (ii) be subject to such
reasonable deductible as shall be determined by Tenant;
(b) During the construction, alteration, or repair of any
improvements on Phase 1A, workers
23
compensation and employers liability insurance covering all persons
employed in connection with such work and with respect to whom death or
bodily injury claims could be asserted against the Lessor, Tenant, or
Phase 1A; and
(c) Fire and extended coverage insurance (it shall not be
necessary to carry earthquake insurance but such insurance may in the
sole judgment of Tenant be carried) in the form customarily carried in
Los Angeles County in an amount determined by Tenant, which shall in
any case be equal to not less than 80% of the then-current replacement
cost for the Phase 1A Improvements, subject to a deductible to be
determined by Tenant of up to $500,000 (which $500,000 may be adjusted
not more than annually on the anniversary date of this Lease using as
an index the Composite Construction Cost Index (Monthly) as published
in U.S. Department of Commerce "Survey of Current Business").
Replacement cost shall be evaluated not less than every five years from
the anniversary date of this Lease, and shall, if the parties shall not
agree thereon, be subject to determination by appraisal.
(d) If any Index provided anywhere in this Lease to be
used for the purpose of adjusting any amount is discontinued or revised
during the term of this Lease such other government index or
computation with which it is replaced shall be used in order to obtain
substantially the same result as would be obtained if the said index
had not been discontinued or revised. If there be no replacement
government index or computation then the closest available index or
computation shall be used from time to time as the parties shall agree
upon and if they shall not agree then such index or computation as
shall be established by arbitration based on the same standard as set
forth in the preceding sentence.
18.2 Insurance Companies and Policies - Terms of Policy.
All insurance provided for pursuant to Section 18.1 shall be effected under a
valid and enforceable policy or policies issued by insurers of recognized
responsibility reasonably satisfactory to Lessor. Each such policy issued under
Section 18.1(c) shall (a) name Lessor, Tenant and any Mortgagee as insureds as
their respective interest may appear, (b) so far as the same provide for payment
of losses provide (except in the case of a loss of less than $500,000 [or such
greater amount compared to $500,000 as the then total of Base Rent and
Escalation Rent bears to the Base Rent]
24
which may be paid to Tenant) for payment of such loss to Mortgagee if it is an
Institutional Investor, or if there is no such Mortgagee then to a bank or trust
company designated by Tenant from time to time, having an office in Los Angeles
which has capital and surplus of at least $50,000,000 (such Mortgagee, bank or
trust company is herein referred to as "Depositary") and (c) so far as the same
provide for payment of losses, provide or be to the legal effect that such
losses payable to Mortgagee or Depositary shall be payable notwithstanding any
act or negligence of Tenant. Each policy issued under Section 18.1 shall provide
that no cancellation or termination thereof on account of nonpayment of premiums
or any other reason shall be effective until at least ten (10) days after
mailing or otherwise sending written notice thereof to Lessor. Each party hereby
waives all rights of action against the other with respect to any losses or
claims covered by any insurance policy under Section 18.1(c) to the extent that
such waiver of subrogation is permitted by each such policy. Upon the execution
of this Lease, and thereafter not less than fifteen (15) days prior to the
expiration dates of the policies theretofore delivered pursuant to this Section,
Tenant shall deliver to Lessor certificates of insurance or duplicate originals
or copies certified to be correct copies of the policies or renewal policies, as
the case may be, required by this Lease, with receipts or other evidence
satisfactory to Lessor showing the payment of the premium therefore. Insurance
required hereunder may be effected by a blanket insurance policy or policies
covering other property.
18.3 Tenant's Separate Insurance. Tenant may take out such
additional or more extensive insurance as it or any Mortgagee shall determine is
desirable. Tenant shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required in this Article to be
furnished by Tenant to Lessor unless Lessor is included therein as an insured,
with loss payable as provided in Section 18.2 hereof, and Tenant shall
immediately notify Lessor of the taking out of any such separate insurance
concurrent in form or contributing in the event of loss and shall deliver the
policy or policies or copies or certificates thereof as provided in Section 18.2
hereof.
18.4 Tenant's Self-Insurance Notwithstanding the
provisions of this Article 18, Tenant may, in lieu of maintaining the insurance
herein required, self-insure against any of the risks herein referred to
provided that (i) prior thereto it shall give notice to Lessor of its intent to
self-insure, specifying in such notice which insurance it proposes not to
maintain in force and effect
25
and if it proposes to self-insure with respect to only a portion of any required
insurance coverage, specifying the amount it proposes to self-insure, (ii)
during any period in which Tenant shall so self-insure, it shall establish and
maintain adequate reserves in cash or cash equivalents satisfactory to Lessor
for losses arising from such risks, and (iii) shall deliver to Lessor with the
notice referred to in clause (i) and thereafter within 30 days after the end of
each of its fiscal years, a certificate of Tenant, setting forth a statement of
the reserves so maintained by Tenant.
ARTICLE 19
DAMAGE TO OR DESTRUCTION
OF SITE OR IMPROVEMENTS
19.1 Tenant to Give Notice. In case of any material damage
to or destruction of the Phase 1A Improvements or any part thereof, Tenant will
within a reasonable period of time give written notice thereof to Lessor
generally describing the nature and extent of such damage or destruction.
19.2 Restoration. In case of any damage to or destruction
of the Phase 1A Improvements or any part thereof, and, subject to the next
sentence, if the insurance proceeds, if any, on account of such damage or
destruction are sufficient for the purpose, Tenant shall within a reasonable
period of time commence and complete (subject to Unavoidable Delays) the
restoration, replacement or rebuilding of the Phase 1A Improvements with such
alterations and additions as may be made at Tenant's election pursuant to and
subject to the terms of Article 8 (such restoration, replacement, rebuilding,
alterations and additions, together with any temporary repairs and property
protection pending completion of the work being herein called "Restoration"). If
the Phase 1A Improvements are damaged during the last ten years of the Lease
Term or if the insurance proceeds are not sufficient to complete Restoration or
if there are no insurance proceeds (other than by reason of Tenant's being a
self-insurer as to such casualty as provided in Section 18.4), or if in Tenant's
opinion it is economically unfeasible to undertake Restoration, Tenant shall
promptly as practicable either (a) commence and complete (subject to Unavoidable
Delays) Restoration of all or a portion of the damaged Phase 1A Improvements or
(b) remove any rubble and cause the portion of Phase 1A
26
occupied by the damaged Phase 1A Improvements as to which Tenant has not elected
to undertake Restoration to be returned to a safe condition and this Lease shall
terminate as to such portion of Phase 1A and the Base Rent and Escalation Rent
shall be reduced as the parties shall either agree upon or as is determined by
appraisal under Article 39, in accordance with the respective rental values of
the portion of Phase 1A remaining under this Lease and the portion removed, each
valued with the Phase 1A Improvements existing thereon immediately before the
damage or destruction.
19.3 Application of Insurance Proceeds. Proceeds of
insurance policies required to be carried under Article 18, whether received by
any Mortgagee of Tenant or the Depositary, which are received on account of any
damage to or destruction of Phase 1A or the Phase 1A Improvements thereon (less
the costs, fees and expenses incurred in the collection thereof, including
without limitation attorney's fees and expenses) and if Tenant shall not make
the election permitted in Section 19.2(b) above, shall be applied as follows:
(a) Tenant shall furnish to Lessor and any Mortgagee
evidence satisfactory to Lessor and the Mortgagee of the total cost of
Restoration pursuant to Section 19.2 and that it has or will have
available the total amount of money which, when added to the insurance
proceeds received, shall be sufficient to pay the cost of such
Restoration.
(b) After the conditions of subsection (a) of this
Section 19.3 have been complied with, net insurance proceeds received
by Depositary on account of any damage to or destruction of Phase 1A or
any part thereof shall (subject to subsection (d) of this Section 19.3)
be paid by Depositary to Tenant or as Tenant may direct, from time to
time as Restoration progresses, to pay (or reimburse Tenant for) the
cost of Restoration. Such payment shall be made only (i) upon written
request of Tenant to Depositary accompanied by a certificate of an
independent architect (which architect shall be satisfactory to Lessor)
to the effect that the amount requested has been paid or is then due
and payable and is properly a part of such cost, (ii) upon
certification of Depositary to Lessor that Depositary has received
evidence satisfactory to it that there are no mechanic's or similar
liens for labor or materials supplied in connection with such
Restoration to date or that such have been adequately provided for, and
27
(iii) upon certification by Depositary to Lessor that the balance of
said proceeds after making the payment requested will be sufficient to
pay the balance of the cost of Restoration. Upon receipt by Lessor and
any Mortgagee of evidence that Restoration has been completed and the
cost thereof paid in full or has been adequately provided for, and that
there are no mechanic's or similar liens for labor or materials
supplied in connection therewith which have not been adequately
provided for, the balance, if any, of such proceeds shall be paid to
Tenant or as Tenant may have agreed in the Mortgage.
(c) Any insurance proceeds held by the recipient on any
termination of the Lease Term and not required to be paid to Tenant
pursuant to subsection (b) of this Section 19.3 shall be paid first to
Mortgagee to the extent of its lien, next to the expenses of clearing
Phase 1A of any rubble, and any balance shall be divided equally
between Lessor and Tenant.
(d) If there exists a default under a Mortgage, the
Mortgagee with the first priority may, at its option, cause insurance
proceeds to be held and retained by the Depositary until either (i) the
default is cured or (ii) Tenant's interest in Phase 1A and the Phase 1A
Improvements is acquired by foreclosure, trustee's sale or deed or
assignment in lieu of foreclosure or (iii) the Lease is terminated.
Upon the release of the insurance proceeds by Mortgagee, the insurance
proceeds are to be applied pursuant to Sections 19.3(b) or 19.3(c)
hereof.
19.4 Insurance Proceeds Less Than $500,000. If insurance
proceeds are less than $500,000 (adjusted every five years on the anniversary
date of this Lease on the basis of the index then being used under Section
18.1(a) of this Lease), such proceeds shall be paid to Tenant to be applied
either to Restoration or to the cost of removal of rubble from Phase 1A, with
any excess to be the property of Tenant (subject to the provisions of any
Mortgage).
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ARTICLE 20
TAKING
20.1 Tenant to Give Notice. In case of a Taking of all or
any part of Phase 1A, or the commencement of any proceedings or negotiations
which might result in such Taking, Tenant shall within a reasonable period of
time give written notice thereof to Lessor generally describing the nature and
extent of such Taking or the nature of such proceedings or negotiations and the
nature and extent of the Taking which might result therefrom, as the case may
be.
20.2 Total Taking. In case of a Taking of the entire Phase
1A, this Lease shall terminate as of the date title vests in the condemning
authority or the date the condemning authority is entitled to possession,
whichever first occurs (the "Date of Taking"). In case of a Taking of a
perpetual easement on or the fee interest in such a substantial part of Phase 1A
which shall result, in either case, in Phase 1A remaining after such Taking
(even if Restoration were made) being unsuitable or economically unfeasible for
the use to which such remaining part of Phase 1A had been put prior to such
Taking, as determined by an independent member of the American Institute of Real
Estate Appraisers (or, if such organization under whatever name it may hereafter
adopt is no longer in existence, any person having knowledge and experience in
valuing properties comparable to the Phase 1A Improvements) selected by Tenant
and satisfactory to Lessor (and evidenced by a certificate of such person
delivered to Lessor within 60 days after the Date of Taking), Tenant may, at its
option, terminate this Lease by written notice to Lessor given within 120 days
after the Date of Taking, as of a date specified in such notice within 180 days
after the Date of Taking. Any Taking of Phase 1A of the character referred to in
this Section 20.2 which results in the termination of this Lease is referred to
herein as a "Total Taking."
20.3 Partial Taking. In case of a Taking of Phase 1A other
than a Total Taking (a "Partial Taking"), (a) this Lease shall remain in full
force and effect as to the portion of Phase 1A remaining immediately after such
Taking, without any abatement or reduction of Base Rent or Escalation Rent or
any other sum payable hereunder, except as provided in Section 20.5, and (b)
Tenant, whether or not the awards or payments, if any, on account of such Taking
shall be sufficient for the purpose, at its
29
expense, but first subject to Section 20.4(a), shall within a reasonable period
of time commence and complete, subject to Unavoidable Delays, Restoration of
Phase 1A as nearly as possible to its value, condition and character immediately
prior to such Taking, with such alterations and additions as may be made at
Tenant's election pursuant to and subject to the terms of Article 8, except for
any reduction in area caused thereby; provided, however, that in case of a
Taking for temporary use Tenant shall not be required to effect Restoration
until such Taking is terminated.
20.4 Application of Awards and Other Payments. Awards and
other payments on account of a Taking, less costs, fees and expenses incurred in
the collection thereof ("Net Awards and Payments") shall be applied as follows:
(a) In case of a Taking other than a Total Taking or a
Taking for temporary use, Tenant shall furnish to Lessor and any
Mortgagee evidence satisfactory to Lessor and Mortgagee of the total
cost of the Restoration required by Section 20.3.
(b) Net Awards and Payments received on account of a
Taking other than a Total Taking or a Taking for temporary use shall be
held by Depositary and applied to pay the cost of Restoration of Phase
1A, such application to be made substantially as provided in paragraph
(b) of Section 19.3. The balance, if any, shall be divided between
Lessor and Tenant in the ratio, as nearly as practicable, which (i) the
then value of Lessor's interest in Phase 1A (including its interest
hereunder) bears to (ii) the then value of Tenant's interest in the
remainder of the Lease Term, each as determined by appraisal as
provided in Article 39 hereof.
(c) Net Awards and Payments received on account of a
Taking for temporary use shall be paid to Tenant; provided, however,
that if any portion exceeding $500,000 (adjusted every five years on
the anniversary date of this Lease on the basis of the index then being
used under Section 18.1(a) of this Lease) of any such award or payment
is paid by the condemnor by reason of any damage to or destruction of
the Phase 1A Improvements, such portion shall be held by Depositary and
applied as provided in subsection (b) of this Section 20.4.
30
(d) Net Awards and Payments received on account of a
Total Taking shall be allocated as follows:
First: There shall be paid to Lessor an amount equal
to the discounted value of the Base Rent and the amount of
Escalation Rent (such amount to be calculated according to the
formula set forth in clause (1) of subsections (a) and (b) of
Section 2.3 as distinguished from clause (2) thereof) on the
portion of Phase 1A which has been taken which would have
become due until the end of the Lease Term if it were not for
the Total Taking and which would rank prior to the payments to
the holder of the then-existing Mortgage under Section 21.2.
The discount rate shall be as agreed by the parties or by
appraisal as provided in Article 39 determined at the time the
amount set forth in this subsection (d) is to be paid to
Lessor.
Second: There shall be paid to Mortgagee an amount
equal to the sum of any unpaid principal amount of the
indebtedness secured by the Mortgage, if any, and any interest
accrued thereon, all as of the date on which such payment is
made.
Third: There shall be paid to Tenant an amount equal
to the value, subject to the rent reserved to Lessor under
this Lease of the interest of Tenant in the remainder of the
Lease Term, including the value of the ownership interest in
and use of the Phase 1A Improvements, determined as of the
date of such Taking by appraisal as provided in this Lease,
after deducting the amount, if any, paid to Mortgagee pursuant
to the foregoing clause Second. Such determination shall be
made as if this Lease shall not have terminated.
Fourth: Any remaining balance shall be paid to
Lessor.
In the event that Tenant's interest under this Lease is subject to any Mortgage,
all amounts payable to Tenant (other than amounts payable for Restoration)
pursuant to subsections (b) and (d) of this Section 20.4 to the extent permitted
by applicable law and required by the Mortgage shall be paid to Mortgagee to be
applied by Mortgagee in accordance with the terms of the Mortgage.
31
20.5 Reduction of Fixed Rent Upon Payment to Lessor. In
the event that any portion of an award or other payment received on account of a
Taking shall be paid to Lessor pursuant to the second sentence of subsection (b)
of Section 20.4, each monthly installment of Base Rent and Escalation Rent then
in effect hereunder shall be reduced as the parties shall either agree upon or
as is determined by appraisal under Article 39, in accordance with the
respective rental value of the portion of Phase 1A remaining under this Lease
and the portion removed, each valued with the Phase 1A Improvements existing
thereon immediately before the Taking.
ARTICLE 21
MORTGAGEE
21.1 Mortgagees, Transferees. In the event the leasehold
estate hereunder shall be acquired by foreclosure, trustee's sale or deed or
assignment in lieu of foreclosure of a Mortgage, the purchaser at such sale or
the transferee by such assignment and its successors as holders of the leasehold
estate hereunder shall not be liable for any Base Rent, Escalation Rent,
Participation Rent, Supplemental Rent, or Additional Rent or other obligations
accruing after its or their subsequent sale or transfer of such leasehold estate
and such purchaser or transferee and its successors shall be entitled to
transfer such estate or interest without consent or approval of Lessor; provided
that, except as to Escalation Rent, Participation Rent and Supplemental Rent as
provided in Section 21.2 and, subject to Section 26.2 and Article 43, the
purchaser or transferee or successor as holder of the leasehold estate hereunder
shall be liable for the payment of all Base Rent, Escalation Rent, Participation
Rent, Supplemental Rent and Additional Rent becoming due with respect to the
period during which such purchaser, transferee or other successor is the holder
of the leasehold estate hereunder.
21.2 Subordination of Escalation Rent, Supplemental Rent
and Participation Rent. The Fixed Mortgage Payments and Participation Mortgage
Payments on the Initial Mortgage will be senior to any Escalation Rent,
Supplemental Rent and Participation Rent. This means that (i) while such
Mortgage exists Mortgagee is entitled to receive Fixed Mortgage Payments and
Participation Mortgage Payments on the Mortgage after payment of the Base Rent
and before any Escalation Rent,
32
Supplemental Rent or Participation Rent is payable and (ii) if such Mortgage is
foreclosed (by judicial or trustee's sale) or there is a deed or assignment in
lieu of foreclosure the purchaser or transferee and its successors as owners of
the leasehold estate will be entitled to receive, after payment of the Base
Rent, and before any Escalation Rent, Supplemental Rent or Participation Rent is
payable, an amount equal to the Fixed Mortgage Payments and Participation
Mortgage Payments which would have been due had an identical Mortgage continued
to encumber the leasehold for the remainder of the Lease Term after such
foreclosure or trustee's sale or deed or assignment in lieu of foreclosure. Any
increases in the Escalation Rent occurring after the recording of a New Mortgage
and any Supplemental Rent and any Participation Rent becoming due after such
recording will be likewise junior and subordinate to the Fixed Mortgage Payments
and Participation Mortgage Payments of the New Mortgage.
21.3 Mortgagee's Escalation Rent. At such time as Tenant's
interest in this Lease is mortgaged or encumbered by any New Mortgage after the
Initial Mortgage there shall be a separate calculation of Escalation Rent to be
paid by Mortgagee under that New Mortgage in the event of foreclosure or
trustee's sale or deed or assignment in lieu of foreclosure of such New Mortgage
("Mortgagee's Escalation Rent"). Mortgagee's Escalation Rent shall not be due
except in the event that the leasehold estate hereunder has been acquired by
foreclosure, trustee's sale or deed or assignment in lieu of foreclosure of the
New Mortgage, and shall not in any manner determine the amount to be paid by
Tenant under this Lease unless Tenant shall be the purchaser at such sale or the
transferee by such assignment. Mortgagee's Escalation Rent shall be the higher
of (a) the total of (i) the then-applicable Escalation Rent, if any, for Phase
1A plus (ii) the product of 2% times the number of Fiscal Years from the date of
execution and delivery of the New Mortgage to the immediately preceding
Adjustment Year (if there was one) times the total of the Base Rent and the
previous Escalation Rent or (b) that percentage of the total of the Base Rent
plus the then-applicable Escalation Rent, if any, as is equal to the percentage
increase of the average annual Escalation Rent Net Cash Flow for the two Fiscal
Years immediately preceding the Fiscal Year in which the New Mortgage is
executed over the average annual Escalation Rent Net Cash Flow during the two
Fiscal Years immediately preceding the preceding Adjustment Year (if there was
one); provided, however, that clause (2) of Section 2.3(a) or (b) shall not
cause
33
the total of the Base Rent plus the Mortgagee's Escalation Rent in any Fiscal
Year to exceed 5% of Net Operating Income for Phase 1A in such Fiscal Year (but
in no event shall this act as a limitation on the payment of Base Rent), and the
excess, if any, shall not cumulate to any subsequent Fiscal Year. Mortgagee's
Escalation Rent shall apply as Escalation Rent for Phase 1A for the period of
time between the date of any foreclosure or trustee's sale or deed or assignment
in lieu of foreclosure and the date of the next Adjustment Year as provided in
this Lease. At the time of such subsequent Adjustment Year, Escalation Rent
shall be calculated as provided in Section 2.3 of this Lease, and Mortgagee's
Escalation Rent shall no longer be payable (nothing in this Section 21.3,
however shall affect Section 21.2 hereof).
ARTICLE 22
FORBEARANCE; RIGHT TO
PERFORM TENANT'S COVENANTS
22.1 Notice. In the event that Tenant's interest under
this Lease is subject to any Mortgage, Lessor will give to Mortgagee at such
address as is specified by Mortgagee in accordance with Article 41 hereof, a
copy of each notice or other communication from Lessor to Tenant with respect to
any claim that a default exists or is about to exist hereunder. At the time of
the giving of such notice or communication to Tenant, Lessor will also give to
Mortgagee a copy of any notice of any rejection of this Lease by any trustee in
bankruptcy of Tenant. Lessor will not exercise any right, power or remedy with
respect to any default hereunder, and no notice to Tenant of any such default
and no termination of this Lease in connection therewith shall be effective,
unless Lessor has given to Mortgagee written notice or a copy of its notice to
Tenant of such default or any such termination, as the case may be.
22.2 Forbearance by Lessor. So long as there is a Mortgage
on Tenant's leasehold estate, Lessor will not exercise any right, power or
remedy with respect to any Event of Default hereunder (other than to seek
monetary relief from Tenant or equitable relief to preserve Phase 1A and the
Phase 1A Improvements, if permitted under Article 24), if
34
(a) in the case of an Event of Default in the payment of
Holding Rent, Base Rent or Additional Rent or Escalation Rent (but only
to the extent to which Mortgagee is subordinate thereto as provided in
Section 21.2), Mortgagee shall, within ninety (90) days after giving of
the notice by Lessor that such Event of Default exists, pay such
Holding Rent, Base Rent, Additional Rent or Escalation Rent (but only
to the extent which Mortgagee is subordinate as provided in Section
21.2); or
(b) in the case of any other Event of Default, (i)
Mortgagee, within one hundred eighty (180) days after the giving by
Lessor of notice that such Event of Default exists, gives written
notice to Lessor of Mortgagee's intention to foreclose its Mortgage,
(ii) Mortgagee, within such same one hundred eighty (180) day period
after the giving of such notice by Lessor, commences foreclosure or
similar proceedings under the Mortgage for the purpose of acquiring
Tenant's interest in this Lease and thereafter diligently prosecutes
the same (provided, however, that if Mortgagee is restrained by a court
of competent jurisdiction or by reason of any law, regulation, order or
rule from so proceeding, the time periods set forth above shall be
tolled and if the default with respect to which such Event of Default
was declared is cured, Mortgagee may discontinue such proceedings), and
(iii) either Mortgagee or any other purchaser or transferee of Tenant's
interest under this Lease, whether at a judicial foreclosure, trustee's
sale or by deed or assignment in lieu of foreclosure within a
reasonable time after the acquisition of such interest, cures all
defaults hereunder susceptible of being cured by Mortgagee or such
purchaser other than obligations of Tenant to satisfy or discharge any
lien, charge or encumbrance junior in priority to the lien of the
Mortgage; provided that neither Mortgagee nor any such purchaser or
transferee nor any successor shall, in order to preserve the leasehold
estate, be obliged to pay any Participation Rent or Supplemental Rent
accrued prior to such transfer or any Escalation Rent to which
Mortgagee was not subordinate as provided in Section 21.2; and,
provided further, that Lessor shall in no event be required to forbear
hereunder unless Mortgagee shall within ninety (90) days after the
giving of notice by Lessor pay all Holding Rent, Base Rent and
Additional Rent and Escalation Rent (but only to the extent to which
Mortgagee is subordinate
35
thereto under Section 21.2), and in respect of which there exists an
Event of Default.
22.3 Performance on Behalf of Tenant. In the event that
Tenant shall fail to make any payment or perform any act required hereunder to
be made or performed by Tenant, then Mortgagee may, but shall be under no
obligation to, after such notice to Tenant, if any, as may be reasonable under
the circumstances, but except for life-threatening emergencies not less than 20
days' notice make such payment or perform such act with the same effect as if
made or performed by Tenant. Nothing herein shall limit the right of Mortgagee
to take action or make a payment if permitted under its Mortgage. Entry by
Mortgagee upon Phase 1A for such purpose shall not waive or release Tenant from
any obligation or default hereunder (except in the case of any obligation or
default which shall have been fully performed or cured by Mortgagee).
22.4 New Lease. In case (a) either (i) Tenant's interest
hereunder shall be sold, assigned (other than for security purposes) or
otherwise transferred pursuant to the exercise of any right, power or remedy by
Mortgagee or pursuant to judicial proceedings, and satisfactory provision for
indemnification of Lessor against any adverse claims arising out of or with
respect to this Lease shall have been made, or (ii) this Lease shall be rejected
under the powers reserved to Tenant and its Trustee in Bankruptcy under the
federal Bankruptcy Code or similar state or federal legislation; (b) no Holding
Rent, Base Rent, Additional Rent or Escalation Rent (but as to each such rent
only to the extent to which Mortgagee is subordinate thereto as provided in
Section 21.2) shall then be due and payable to Lessor, (c) Mortgagee or any
other purchaser of Tenant's interest hereunder shall have arranged for the
correction of any default (other than in the payment of Participation Rent or
Supplemental Rent or of any Escalation Rent, but only to the extent to which the
Mortgagee was not subordinate thereto as provided in Section 21.2)
susceptible of being corrected by the tenant under the New Lease referred to
below, and (d) this Lease shall have been terminated pursuant to the terms
hereof by reason of a default, then Lessor, within ninety (90) days after
receiving written request therefor and upon payment to Lessor of all of Lessor's
expenses, including, without limitation, attorneys' fees and expenses incident
thereto, will execute and deliver a new lease of Phase 1A to Mortgagee or its
nominee, purchaser, assignee or transferee, as the case may be, for the
remainder of the Lease Term (a "New Lease"), and, except for charges or
36
encumbrances caused or suffered by Tenant, with the same terms as are contained
herein (except that the tenant under such New Lease shall be entitled to the
same rights as are provided under Article 21 to Mortgagee and any purchaser,
transferee and successor and with priority equal to that hereof). Concurrently
with execution of such New Lease, Lessor shall quitclaim the Phase 1A
Improvements to the tenant under the New Lease together with a Bill of Sale and
other appropriate instruments of conveyance, for such of Tenant's Equipment as
may have come into Lessor's possession. Upon the execution and delivery of such
New Lease, Lessor, at the expense of the tenant under the New Lease, shall take
such steps as shall be necessary to cancel and discharge this Lease of record
and remove Tenant from Phase 1A and the tenant under the New Lease shall be
deemed to be the landlord under any Occupancy Leases.
ARTICLE 23
MORTGAGES, ASSIGNMENTS
23.1 Mortgages. Tenant's interest in this Lease may be
encumbered only by a Mortgage or Mortgages. Any assignment of Tenant's interest
hereunder as security for a loan, however, shall be subject to each and all of
the covenants, conditions and restrictions set forth in this Lease, and in the
event of any conflict between the provisions of this Lease and the provisions of
a Mortgage or any such assignment, the provisions of this Lease shall control.
23.2 Assignments
(a) Except as otherwise provided in Sections 21.1 and
23.1 and in the event of judicial foreclosure, trustee's sale or deed
or assignment in lieu of foreclosure of a Mortgage, Tenant and its
successors and assigns shall not assign their interest in this Lease
without the prior written consent of Lessor. Lessor's consent shall be
granted upon the terms and conditions hereinafter provided.
(b) Prior to the Completion Date with respect to Phase
1A, Lessor shall be obligated to grant its consent to such assignment
only upon compliance with the provisions of Section 109 of the
Disposition Agreement. Except as Lessor shall otherwise approve, no
assignment made pursuant to this subsection and no
37
consent of Lessor to such an assignment made pursuant to this
subsection shall release or relieve Tenant or any assignor of and from
its obligations under this Lease except for obligations for payment or
performance which become due under this Lease after the Completion
Date.
(c) After the Completion Date with respect to Phase 1A or
any separate legal parcel (or parcels) within Phase 1A which is the
subject of a proposed assignment, Lessor shall consent to an assignment
upon compliance with the conditions specified in Section 23.2(d) hereof
and if the proposed assignee shall itself have experience in the
operation and management of real estate of the type and character
similar to the Phase 1A Improvements which are proposed to be the
subject of such assignment or agrees and covenants as an additional
obligation under this Lease to at all times cause the Phase 1A
Improvements to be operated and managed by a Person who is experienced
in managing and operating real estate of the type and character similar
to the Phase 1A Improvements. However, for purposes of this subsection
neither the financial terms of the assignment transaction, except to
the extent, if any, that they may affect the efficient operation and
management of the Phase 1A Improvements, nor the credit standing or
financial responsibility of the assignee (except only as provided in
Section 23.2(d) hereof) shall be considered by Lessor in determining
whether the foregoing conditions have been satisfied. Tenant and such
assignee shall deliver to Lessor a statement or certificate specifying
in reasonable detail the information which shall enable Lessor to make
the determination whether the conditions of this subsection have been
complied with.
(d) Tenant's right to make an assignment shall be subject
to compliance with the following further conditions:
(i) At the time of such assignment, this Lease
shall be in full force and effect and either no Default then
exists or no Default will exist upon consummation of the
assignment, and
(ii) The assignee shall have a Net Worth equal to
the greater of (a) not less than the sum of six monthly
installments of Base Rent and then-current Escalation Rent
provided, however, that in the event that such assignment
takes
38
place in a year preceding an Adjustment Year then for purposes
of this calculation only the Escalation Rent figure shall not
be the then-current Escalation Rent, but rather shall, for
that year preceding the Adjustment Year, be the total of (i)
the previous Escalation Rent plus (ii) 20% of the total of the
Base Rent and the previous Escalation Rent; or (b)
$10,000,000.
(iii) Net Worth shall be calculated in accordance
with generally accepted accounting principles and is to be
determined on the basis of a statement of financial condition
as of a date not more than 180 days prior to the date of
assignment. Such statement of financial condition shall be
accompanied either by an opinion of a certified or a chartered
public accountant or by a certificate by the chief financial
or accounting officer of the assignee that it fairly
represents the financial condition of the assignee.
(e) After the Completion Date with respect to Phase 1A or
any separate legal parcel (or parcels) within Phase 1A which is the
subject of a proposed assignment, notwithstanding the provisions of
Sections 23.2(a), (c) and (d) the consent of Lessor shall not be
required to an assignment of Tenant's interest in this Lease (i) to a
corporation, partnership, joint venture, syndicate or other group
controlled by or subject to the same control as, the assignor or the
transferor, provided the assignor or transferor remains liable; (ii) to
a member or members of the family of the assignor or transferor
provided the assignor or transferor remains liable; or (iii) in the
case of devolution through death. Tenant and such assignee shall
deliver to Lessor a certificate or other statement specifying in
reasonable detail the information which shall enable Lessor to make the
determination whether the conditions of this subsection have been
complied with.
(f) For the purpose of Section 23.2(b) and Section
23.2(e) "control" of any corporation shall be deemed to be vested in
the Person or Persons owning more than 50% of the voting power for the
election of the board of directors of such corporation and "control" of
a partnership, joint venture, syndicate or other group shall be deemed
to be vested in the Person or Persons owning at least 50% of the
general partners' interest in such partnership or of the total
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interest in such joint venture, syndicate or other group, and members
of the family of any assignor or transferor shall include his spouse,
grandparents, parents, brothers and sisters, nephews and nieces, and
issue, a legally adopted child being treated as a child by blood.
(g) Sections 23.2(a) through (d) and Section 23.2(h),
below, shall under no circumstances be deemed to apply to (i) the
transfer or assignment of any equity participation interest or other
interest in the Phase 1A Improvements and under this Lease to an
Institutional Investor; or (ii) to the giving of any Mortgage by Tenant
on this Lease or on the Phase 1A Improvements to secure a loan; or
(iii) to any subsequent transfers or assignments of any such equity
participation or other interest acquired by an Institutional Investor
or (iv) any purchaser at a foreclosure sale or trustee's sale or
transferee by deed or assignment in lieu of foreclosure of any Mortgage
or (v) any Person who shall acquire Tenant's interest in the Phase 1A
Improvements and this Lease at any time after a sale under any such
Mortgage pursuant to a judgment of foreclosure and sale, or through any
deed or assignment in lieu of foreclosure, or through settlement of or
arising out of any pending or contemplated foreclosure action,
provided, however, that any transferee under clause (v) shall comply
with the provisions of Section 23.2(d) hereof.
(h) No assignment of any interest in this Lease made with
Lessor's consent or as otherwise permitted, shall be effective until
there shall have been delivered to Lessor an executed counterpart of
such assignment containing an agreement, in recordable form, executed
by the assignor and the proposed assignee, wherein and whereby such
assignee assumes due performance of the obligations on the assignor's
part to be performed under this Lease to the end of the term of this
Lease.
(i) Upon the making of an effective assignment of any
interest in this Lease and the delivery by the assignor to Lessor of an
executed counterpart of such assignment containing the agreement of the
assignee to assume the obligations of this Lease, Tenant shall be
released and relieved of all further liability under this Lease with
respect to that portion of its leasehold interest being assigned,
from and after the effective date of such assignment, and each
subsequent assignee, upon making a further assignment in
40
compliance with the foregoing conditions, shall be released and
relieved of all further liability under this Lease from and after the
effective date of such further assignment. No release of Tenant or any
assignee from liability shall relieve any guarantor except to the
extent the guarantee shall so provide or shall be limited in its scope
to the obligations of the particular holder of Tenant's interest. Such
release shall be self-operative, provided, however, that Lessor, at the
written request of the assigning Tenant, shall within ten business
days after written request therefor certify in writing to the fact of
such release upon compliance by Tenant with the conditions of this
Section 23.2(i).
(j) The consent by Lessor to an assignment hereunder
shall not in any way be construed to relieve Tenant from obtaining the
express consent in writing of Lessor to any further assignment.
(k) If Tenant shall dispute the reasonableness of
Lessor's refusal of any requested consent, the dispute shall be
resolved by arbitration in the manner provided in Section 35 hereof.
(1) From and after the Completion Date, upon the
foreclosure or trustee's sale or deed or assignment in lieu of
foreclosure of any Mortgage, the Person who was Tenant under this Lease
prior to such sale or deed or assignment in lieu will not be liable for
obligations arising under this Lease save and except for the Holding
Rent, Base Rent, Escalation Rent, Supplemental Rent, Additional Rent,
and Participation Rent accruing prior to such sale or deed or
assignment in lieu; provided that the purchaser at such sale or
transferee by such deed shall be liable as provided in the proviso in
Section 21.1 hereof.
23.3 Occupancy Leases. Tenant may enter into such
subleases of portions of Phase 1A as Tenant deems advisable. Lessor agrees to
enter into a non-disturbance and attornment agreement with such tenants under
Occupancy Leases as request the same and as are granted non-disturbance and
attornment agreements by Mortgagee on terms at least substantially as
favorable to Mortgagee as set forth in Exhibit D attached hereto.
23.4 Refinancing. Lessor's fee simple estate in Phase 1A
will not be subordinated to any financing or refinancing by Tenant. Tenant will
have the unlimited right to encumber its interest in this Lease and the
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Phase 1A Improvements by a Mortgage or Mortgages on the leasehold ("New
Mortgage"), subject to the following restrictions and requirements:
(a) The amount of indebtedness secured by any New
Mortgage or New Mortgages will be limited so that the Projected Net
Operating Income is equal to not less than 125% of the total of the
Fixed Mortgage Payments and the Projected Participation Mortgage
Payments on the New Mortgage.
(b) The Escalation Rent Debt Service deducted for
purposes of calculating the Escalation Rent and the Participation Rent
Debt Service deducted for purposes of calculating the Participation
Rent payable to Lessor subsequent to the recording of a New Mortgage
or New Mortgages will be calculated as if the Initial Mortgage had
remained on the leasehold estate throughout the term of this Lease.
(c) Base Rent plus Mortgagee's Escalation Rent (as
determined under Section 21.3) with respect to such New Mortgage will
rank prior to the Fixed Mortgage Payments and Participation Mortgage
Payments on the New Mortgage.
(d) No Default then exists or, immediately after
recording of the New Mortgage no Default will exist.
23.5 Consent of Mortgagee Required. No cancellation,
surrender or modification of this Lease shall be effective without the written
consent of the holder of any Mortgage.
23.6 [Intentionally omitted]
23.7 Sale for Profit of Interest in Lease.
(a) For purposes of this Section 23.7, and for the
purpose of computing Developer's Preferred Return, "Deductible Profit" shall
mean fifty percent (50%) of any "Profit" received from a sale after the "Profit
Date" of an "Interest in this Lease" (as those terms are hereinafter defined).
(b) "Profit" shall mean the excess, if any, of the cash
and the fair market value at the time of sale of any other consideration
received (including the Allocated Indebtedness attributable to the Interest in
this Lease being sold) over the sum of (i) transferor's "Equity Account" or
"Consolidated Equity Account," as the case may be, and (ii) the share of the
greater of the Initial
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Mortgage or the Mortgage from time to time existing allocable to the Interest in
this Lease with respect to which the sale is being made.
(c) "Profit Date" shall mean the tenth anniversary of the
Completion Date of the last Phase to be completed for which a conveyance is made
by Agency to Developer prior to termination of the Disposition Agreement.
(d) "Interest in this Lease" shall mean any direct or
indirect interest in all or any portion of Tenant's ownership interest (as
distinguished from a mortgage or other security interest) in the leasehold
estate created hereby including, without limitation, an interest as
tenant-in-common or joint tenant or as community property, or as a partner in
Tenant (if it be a partnership) or a shareholder in Tenant (if it be a
corporation). On the date hereof, the term Interest in the Lease shall include
only the following: (1) a forty percent (40%) interest in Tenant owned by
Structures, and (2) a sixty percent (60%) interest in Tenant owned by CPA which,
in turn includes the equivalent of (i) a forty percent (40%) interest in Tenant
owned by C-F, (ii) a ten percent (10%) interest in Tenant owned by Shapell
California Center, Inc. (herein referred to as "Shapell"), and (iii) a ten
percent (10%) interest in Tenant owned by Grand-Hill Associates (herein
referred to as "Goldrich").
(e) (1) For purposes of this Section 23.7, an Equity
Account shall be created for the following Persons to reflect their original
Interests in this Lease and Equity shall be allocated to each such Equity
Account as follows:
(A) As to C-F, an amount equal to the actual
cash contributed by C-F to pay Development Costs, plus forty
percent (40%) of the Equity in excess of the cash contributed
by all of the partners of CPA and by Structures to pay for
Development Costs;
(B) As to Structures, an amount equal to the
actual cash contributed by Structures to pay Development
Costs, plus forty percent (40%) of the Equity in excess of the
cash contributed by all of the partners of CPA and by
Structures to pay for Development Costs;
(C) As to Shapell, an amount equal to the actual
cash contributed by Shapell to pay
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Development Costs, plus ten percent (10%) of the Equity in
excess of the cash contributed by all of the partners of CPA
and by Structures to pay for Development Costs; and
(D) As to Goldrich, an amount equal to the
actual cash contributed by Goldrich to pay Development Costs,
plus ten percent (10%) of the Equity in excess of the cash
contributed by all of the partners of CPA and by Structures to
pay for Development Costs;
(2) For purposes of this Section 23.7, a
Consolidated Equity Account shall be created for any entity, which is composed
of two or more Persons for whom an Equity Account exists. The Consolidated
Equity Account shall be the sum of the Equity Accounts of the Persons comprising
such entity. Initially, the following Consolidated Equity Accounts shall be
created:
(A) A Tenant's Consolidated Equity Account which
shall be the sum of the Equity Accounts described in
subsections (1)(A) through (D);
(B) A CPA Consolidated Equity Account which
shall be the sum of the Equity Accounts described in
subsections (1)(A), (C) and (D);
(3) To the extent a sale of an Interest in this
Lease requires the adjustment of an entity's Consolidated Equity Account, the
Equity Accounts of the Persons which comprise the entity whose Consolidated
Equity Account is to be adjusted shall be so adjusted on a pro rata basis in the
ratio that the Equity Account of each such Person shall bear to such
Consolidated Equity Account.
(f) In the event of a sale or transfer prior to the
Profit Date of all or any part of any Interest in this Lease, any Profit
received on that sale shall not be Deductible Profit. Such sold or transferred
Interest in this Lease shall remain an Interest in this Lease in the hands of
the transferee. There shall be deducted from the transferor's Equity Account and
Consolidated Equity Account, a percentage thereof equal to that portion of the
transferor's Interest in this Lease which is being transferred. The amount
deducted from the transferor's Equity Account and related Consolidated Equity
Account shall be allocated to the Equity Account and related Consolidated Equity
Account of the transferee. If the transferee does not have an Equity Account or
related
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Consolidated Equity Account, a new Equity Account and related Consolidated
Equity Account shall be created for the transferee and the amount deducted from
the transferor's Equity Account and related Consolidated Equity Account shall be
allocated to such new Equity Account and related Consolidated Equity Account.
(g) Deductible Profit from any sale shall never exceed
the amount of the transferor's Equity Account or Consolidated Equity Account
immediately prior to such sale. There shall be deducted from the transferor's
Equity Account and related Consolidated Equity Account an amount equal to the
Deductible Profit. If the transferor's Equity Account and related Consolidated
Equity Account are zero or are reduced to zero pursuant to this Section 23.7(g),
any subsequent transfers of the Interest in this Lease so sold shall not be
subject to the provisions of this Section 23.7. In the event of any refinancing
in excess of the Initial Mortgage the amount of such excess shall be allocated
appropriately by Tenant to reduce the Equity Accounts and Lender's Account.
(h) In the event a sale or transfer on or after the
Profit Date does not reduce the transferor's Equity Account and Consolidated
Equity Account to zero, and such Accounts were not zero before such sale or
transfer, such sold or transferred Interest in this Lease shall remain an
Interest in this Lease in the hands of the transferee. There shall be deducted
from the transferor's remaining Equity Account and related Consolidated Equity
Account a percentage thereof equal to that portion of the transferor's Interest
in this Lease which is being transferred. The amount deducted from the
transferor's remaining Equity Account and related Consolidated Equity Account
shall be allocated to the Equity Account and related Consolidated Equity Account
of the transferee. If the transferee does not have an Equity Account or
Consolidated Equity Account, a new Equity Account or Consolidated Equity Account
shall be created for the transferee and the amount deducted from the
transferor's remaining Equity Account or Consolidated Equity Account shall be
allocated to such new Equity Account or Consolidated Equity Account as the case
may be.
(i) For purposes of this Section 23.7 the following
shall not be deemed to be a sale: (1) the admission of an additional partner or
investor into Tenant and payment to Tenant by such partner or investor of a
capital contribution for use in Tenant's business which is not otherwise paid or
distributed to one of the partners or investors; (2) the transfer without
consideration of an
45
interest in Tenant; and (3) the transfer of interests in Tenant among partners
pursuant to the provisions of any partnership or joint venture agreement among
the Persons holding an interest in Tenant.
(j) In the event of a sale or transfer of all or any part
of any Interest in this Lease made in connection with or in order to induce the
transferee ("Lender") to provide financing for Phase 1A, no portion of profit
received on that sale shall be Deductible Profit. Such sold or transferred
Interest in this Lease shall thereinafter be a "Lender's Interest." There shall
be deducted from the transferor's Equity Account and related Consolidated Equity
Account an amount equal to the cash contributed by the transferee to pay
Development Costs or satisfy mortgage financing the proceeds of which were used
to pay Development Costs, plus a percentage of the Equity in excess of the
total cash contributed by all Persons at that time to pay Development Costs,
equal to the transferee's ownership interest in Tenant after such sale or
transfer. A "Lender's Account" shall be created for the transferred Lender's
Interest and the amount deducted from the transferor's Equity Account and
related Consolidated Equity Account shall be allocated to such Lender's Account.
Any Lender's Account and any subsequent sales or transfers of all or any part of
any Lender's Interest shall not be subject to the provisions of this Section
23.7. Within a reasonable period of time after the creation of a Lender's
Account, Tenant shall give notice to Lessor of the creation and amount of such
Lender's account.
(k) Lessor acknowledges that Metropolitan has issued a
financing commitment to Tenant which provides for equity financing for the
construction of the Phase 1A Improvements. Lessor further acknowledges that
Metropolitan will be entitled to a Lender's Account equal to the amount of cash
contributed by Metropolitan to pay Development Costs or to satisfy mortgage
financing the proceeds of which were used to pay Development Costs, plus fifty
percent (50%) of the equity in excess of the cash contributed by all the
partners of CPA, by Structures and by Metropolitan and that Metropolitan's
Interest in this Lease obtained pursuant to such financing shall be a
Lender's Interest.
(l) After the sale or transfer by any Person of any
Interest in this Lease, Tenant shall certify to Lessor the amount of Equity
allocable to each Equity Account and related Consolidated Equity Account and
each Lender's Account before the transfer and the amount of Equity
46
allocable to each Equity Account and related Consolidated Equity Account and
each Lender's Account after the transfer.
(m) Allocated Indebtedness shall mean that portion of the
Mortgage and any indebtedness (in each case then outstanding allocable on a
pro-rata basis to an Interest in Tenant which is being sold or transferred
subject to Section 23.7) which either encumbers the Tenant's Interest in this
Lease and is taken subject to or assumed by a purchaser of all or any portion of
Tenant's Interest in this Lease or which is issued by such a purchaser to Tenant
in connection with the sale of such an Interest.
(n) The total of the Equity Accounts and Lender's
Accounts as they may exist from time to time shall equal Equity.
ARTICLE 24
EVENTS OF DEFAULT; TERMINATION
If any one or more of the following events ("Events of
Default") shall occur:
(a) if Tenant shall fail to pay any sum due to Lessor
when and as the same becomes due and payable and such failure shall
continue for more than thirty (30) days after notice from Lessor to
Tenant;
(b) if Tenant shall fail to proceed with the construction
of the Phase 1A Improvements as required by this Lease for a period of
three (3) months (or such longer period as may be the result of
Unavoidable Delay in such construction) after written notice thereof
from Lessor;
(c) if Tenant shall abandon or substantially suspend
construction of the Phase 1A Improvements for a period of three (3)
months (or such longer period as may be the result of Unavoidable Delay
in such construction) after written notice of such abandonment or
suspension from Lessor; or
(d) if any Person claiming under or through Tenant shall
violate the provisions of Section 3.10 of this Lease, and Tenant shall
(i) fail, within sixty
47
(60) days after notice to Tenant from Lessor of such violation, to make
written demand upon such Person to cease and desist such violation or
(ii) within thirty (30) days after such written demand to such Person,
Lessor gives written notice to Tenant that such Person has failed to
cease and desist from such violation, and Tenant fails to file, or
having filed thereafter fails to proceed with reasonable diligence to
prosecute, an action or actions to either enjoin such violation by such
Person or to dispossess such person by unlawful detainer proceedings;
or
(e) if Tenant shall fail to perform or comply with any
provision of Section 3.10 (other than in connection with violations by
any Person other than Tenant) and such failure shall continue for more
than sixty (60) days after notice thereof from Lessor, and Tenant shall
not, subject to Unavoidable Delays, within such period commence with
due diligence and dispatch the curing of such default, or having so
commenced, shall thereafter fail or neglect, for reasons other than
Unavoidable Delays, to prosecute or complete with diligence and
dispatch the curing of such default;
(f) if Tenant shall fail to perform or comply with any
term hereof (other than a failure to perform or comply with Section
3.10 or any other provision which is dealt with in clauses (a), (b) or
(c) above) and such failure shall continue for more than sixty (60)
days after notice thereof from Lessor, and Tenant shall not, subject to
Unavoidable Delays, within such period commence with due diligence and
dispatch the curing of such default, or having so commenced, shall
thereafter fail or neglect, for reasons other than Unavoidable Delays,
to prosecute or complete with diligence and dispatch the curing of such
default;
then, and in any such event (subject to Unavoidable Delays) Lessor, subject to
Article 22, at any time thereafter while such Event of Default exists may give a
written termination notice to Tenant, and on the date specified in such notice
(which shall be not less than five days after the date such notice is given)
this Lease shall terminate and, subject to any equitable or other rights
available at law to prevent or mitigate a forfeiture, and subject also to
Section 22.1, the Lease Term shall expire and terminate and all rights of Tenant
under this Lease shall cease, unless before such date (i) all arrears of rent
and all other sums payable by Tenant under this Lease (together with interest
thereon at
48
the Interest Rate) and all costs and expenses (including, without limitation,
attorneys' fees and expenses) incurred by or on behalf of Lessor hereunder,
shall have been paid by Tenant, and (ii) all other Events of Default at the time
existing under this Lease shall have been satisfactorily remedied or Tenant
shall have commenced curing such Events of Default and be proceeding therewith
with reasonable diligence. Tenant shall reimburse Lessor for all costs and
expenses incurred by or on behalf of Lessor (including, without limitation,
attorneys' fees and expenses) occasioned by any Default by Tenant under this
Lease.
ARTICLE 25
CURRENT REMEDIES
If there exists an Event of Default which has not been
satisfactorily remedied or which Tenant has not commenced curing and is
proceeding with reasonable diligence to cure as provided in Article 24, then
Lessor may, at its option, sue to recover any rent and all other sums payable
hereunder as the same become due hereunder. Additionally, Lessor shall be
entitled to recover from Tenant all costs of maintenance and preservation of
Phase 1A, and all costs, including attorneys' and receiver's fees, incurred in
connection with the appointment of and performance by a receiver to protect
Phase 1A and Lessor's interest under this Lease.
ARTICLE 26
FINAL REMEDIES
26.1 Remedies Upon Termination. If Tenant's right to
possession is terminated by Lessor because of an Event of Default, this Lease
shall terminate in accordance with Article 24. Upon any such termination of this
Lease, and in addition to all other rights or remedies it may have under this
Lease, but subject to Section 26.2, Lessor may recover from Tenant:
(a) The worth at the time of award of the unpaid rent
and all other sums payable hereunder which are due, owing and unpaid by
Tenant to Lessor at the time of termination or surrender by Tenant of
possession or recovery by Lessor of possession of Phase 1A; and
49
(b) All costs, including attorneys' fees, of
repossession from Tenant.
26.2 Limitation. Notwithstanding Article 25 or Section
26.1 or any other provision of this Lease to the contrary (but subject to
Article 43), from and after the Completion Date, in the event Tenant shall give
written notice to Lessor of Tenant's intent to abandon, surrender and quit Phase
1A on a date which shall not be less than thirty (30) days after the date on
which such notice is received by Lessor, and in the event Tenant shall on the
date specified in such notice abandon, surrender and quit Phase 1A free and
clear of the Mortgage and pay to Lessor an amount equal to any rents paid by
Occupancy Tenants for periods more than 30 days after such surrender and all
amounts held by Tenant as security deposits under any Occupancy Lease, then
Lessor agrees that Lessor shall not be entitled to maintain any action against
Tenant for or seek recovery from Tenant of, any obligations under this Lease
except for unpaid Holding Rent, Base Rent, Escalation Rent, Participation Rent,
Supplemental Rent, or Additional Rent accruing prior to the date of surrender
specified in such notice. Tenant shall, however, be and remain liable to Lessor
for and with respect to any Holding Rent, Base Rent, Escalation Rent,
Participation Rent, Supplemental Rent and Additional Rent accruing prior to the
date of such abandonment, surrender and quitting. In the event Lessor receives
such notice Lessor shall be entitled to terminate this Lease as of the date
specified in such notice on which Tenant abandons, surrenders and quits Phase
1A. On the date of surrender Tenant shall deliver to Lessor (a) a quitclaim of
its interest under this Lease, (b) an assignment of its interest to Lessor under
all Occupancy Leases, (c) all Occupancy Leases then in force and effect, which
shall contain an agreement by the Occupancy Tenant to attorn to Lessor if this
Lease terminates, and (d) either (i) a certificate of Tenant that there is no
Occupancy Lease covering more than 100,000 square feet of rentable area and with
respect to which the Tenant has been paid more than one year's rent in advance
as of the date of such surrender, or (ii) Tenant's check to Lessor for prepaid
rent for the period of time in excess of such one-year period on each such
lease.
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ARTICLE 27
ENTRY BY LESSOR
Lessor and its authorized representatives shall have the right
to enter Phase 1A at all reasonable times after at least twenty-four hours
written notice to Tenant and any Occupancy Tenant for the purpose of inspecting
Phase 1A (but nothing contained in this Lease shall create or imply any duty on
the part of Lessor to make any such inspection), provided however that Lessor
shall have no right of entry into areas reserved by Tenant or Occupancy Tenants
for maintenance of confidential documents or as security areas. Such entry by
Lessor shall not constitute an eviction of Tenant.
ARTICLE 28
LESSOR'S EQUITABLE RELIEF
28.1 Continuing Right of Lessor. Lessor shall be entitled
to equitable relief where such relief is appropriate.
ARTICLE 29
NO WAIVER BY LESSOR OR TENANT
No failure by Lessor or Tenant to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no submission by Tenant or acceptance by
Lessor of full or partial rent during the continuance of any such breach shall
constitute a waiver of any such breach or of any such term. No waiver of any
breach shall affect or alter this Lease, which shall continue in full force and
effect, or the respective rights of Lessor or Tenant with respect to any other
then existing or subsequent breach.
ARTICLE 30
LESSOR'S REMEDIES CUMULATIVE
Each right, power and remedy of Lessor provided for in this
Lease shall be cumulative and concurrent and
51
shall be in addition to every other right, power or remedy provided for in this
Lease, and the exercise or beginning of the exercise by Lessor of any one or
more of the rights, powers or remedies provided for in this Lease shall not
preclude the simultaneous or later exercise by Lessor of any or all such other
rights, powers or remedies.
ARTICLE 31
ACCEPTANCE OF SURRENDER
Except for surrenders as provided in Section 26.2, no
modification, termination or surrender of this Lease or surrender of Phase 1A or
any part thereof or of any interest therein by Tenant shall be valid or
effective unless agreed to and accepted in writing by Lessor and Mortgagee, if
any, and no act by any representative or agent of Lessor or any Mortgagee, other
than such a written agreement and acceptance by Lessor and any Mortgagee, shall
constitute an acceptance thereof.
ARTICLE 32
NO MERGER OF TITLE
There shall be no merger of the leasehold estate created by
this Lease with the fee estate in Phase 1A by reason of the fact that the same
Person may own or hold (a) the leasehold estate created by this Lease or any
interest in such leasehold estate, and (b) any interest in such fee estate. No
merger of the leasehold estate and the fee estate shall occur unless and until
all Persons, including any Mortgagee, having any interest in (i) the leasehold
estate created by this Lease, and (ii) the fee estate in Phase 1A, shall join in
a written instrument effecting such merger and shall duly record the same.
Likewise, no merger of the leasehold estate created hereby and the interest of
the holder of a Mortgage thereon shall occur unless and until all Persons,
including any Mortgagee having an interest in such leasehold estate and such
Mortgage shall join in a written instrument effecting such merger and shall duly
record the same.
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ARTICLE 33
ESTOPPEL CERTIFICATE BY TENANT
Tenant will execute, acknowledge and deliver to Lessor within
10 Business Days after a request therefor, a certificate certifying that (a)
this Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect as modified, and
stating the modifications), (b) the dates, if any, to which any rent and other
sums payable hereunder have been paid, and (c) no notice has been received by
Tenant of any default which has not been cured, except as to defaults specified
in said certificate. Any such certificate may be relied upon by any prospective
purchaser or mortgagee of Phase 1A or any part thereof.
ARTICLE 34
ESTOPPEL CERTIFICATE BY LESSOR
Lessor will execute, acknowledge and deliver to Tenant or any
Mortgagee or Occupancy Tenant within 10 Business Days after a request therefor,
a certificate certifying (a) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in full force
and effect as modified, and stating the modifications), (b) the dates, if any,
to which rent and other sums payable hereunder have been paid, and (c) whether
or not, to the knowledge of Lessor, there are then existing any Defaults under
this Lease (and if so, specifying the same) and (d) whether or not Lessor agrees
with Tenant, based on the information furnished by Tenant, that a proposed New
Mortgage complies with Section 23.4, and if not, in what respects and on what
basis the requirements are not considered by Lessor to be in compliance. Any
such certificate and any certificate given under Section 3.6 of this Lease may
be relied upon by any prospective transferee, or mortgagee, or sublessee of
Tenant's interest under this Lease.
ARTICLE 35
ARBITRATION
Whenever in this Lease it is provided that a dispute shall be
determined by arbitration or if the
53
parties shall otherwise agree to arbitration, the arbitration shall be conducted
as provided in this Article. The party desiring such arbitration shall give
written notice thereof to the other specifying the dispute to be arbitrated.
Within twenty (20) days after the date on which the arbitration procedure is
invoked as provided in this Lease, each party shall appoint an experienced
arbitrator and notify the other party of the arbitrator's name and address. The
two arbitrators so appointed shall appoint a third experienced arbitrator. If
the three arbitrators to be so appointed are not appointed within thirty (30)
days of the date the arbitration procedure is invoked as provided in this Lease,
then the arbitrator or arbitrators, if any, who have been selected shall proceed
to carry out the arbitration. The arbitrator or arbitrators so selected shall
furnish Lessor and Tenant with a written decision within thirty (30) days of the
date of selection of the last of the arbitrators to be so selected. Any decision
so submitted shall be signed by a majority of the arbitrators if more than two
have been selected. If only two arbitrators have been selected and they are
unable to agree, then either Lessor or Tenant shall be entitled to apply to the
presiding judge of the Superior Court of the County of Los Angeles for the
selection of a third arbitrator who shall then participate in the arbitration,
and who shall be selected from a list of names of experienced arbitrators
submitted by Lessor or from a list of names submitted by Tenant. In designating
arbitrators and in deciding the dispute, the arbitrators shall act in accordance
with the rules then in force of the American Arbitration Association, subject,
however, to such limitations as may be placed upon them by the provisions of
this Lease.
The obligation of Lessor and Tenant to submit a dispute to
arbitration, is limited to disputes arising under those articles of this Lease
which specifically provide for arbitration.
ARTICLE 36
END OF LEASE TERM
Upon the expiration or other termination of the term of this
Lease, Tenant shall quit and surrender to Lessor Phase 1A in good order and
condition, ordinary wear and tear excepted. Tenant hereby agrees to execute all
documents as Lessor may deem necessary to evidence any such other termination.
Any holding over by Tenant after
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the expiration or termination of this Lease shall not constitute renewal hereof
or give Tenant any rights hereunder or in Phase 1A, except with the prior
written consent of Lessor.
ARTICLE 37
TENANT'S RIGHTS OF FIRST NEGOTIATION
37.1 Tenant's Rights of First Negotiation. Lessor
expressly agrees that it shall not sell or otherwise transfer any part of Phase
1A prior to the End of the Development Period of Phase 1A. If Lessor, at any
time during the term of this Lease after the End of the Development Period of
Phase 1A, determines to sell, exchange or transfer, other than by mortgage or
other hypothecation, all or any part of Phase 1A to any entity other than the
City of Los Angeles, any other governmental agency, or a not-for-profit
corporation formed by Agency or the City of Los Angeles but established for the
purpose, amongst others, of public management of the Site, with duties and
functions comparable to those of Lessor (hereinafter collectively referred to as
a "Permitted Transferee") (and in the event that such sale, exchange or transfer
is to a Permitted Transferee, then such Permitted Transferee expressly shall
agree to be subject to the terms of this Article 37 and the rights of Tenant
hereunder), Lessor (except in the event of a foreclosure or trustee's sale by
any mortgagee of a bona fide mortgage of Phase 1A obtained by Lessor or in the
event that Tenant is in default hereunder, which default has not been cured upon
notice as provided in Article 24 above) shall, by prior written notice, notify
Tenant of the proposed transfer and shall afford Tenant the right of first
negotiation to be the purchaser under such transfer as set forth below:
(a) Lessor may offer Phase 1A for sale, exchange or
transfer by public auction, in which event Lessor's only obligation is
to provide Tenant with a copy of such notice as Lessor provides to the
public generally;
(b) Except to the extent that Lessor is not permitted by
law to sell Phase 1A other than by means of solicitation of sealed
bids, Lessor hereby agrees not to sell or offer to sell Phase 1A by
means of solicitation of sealed bids;
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(c) In the event that Lessor has received from any third
party a proposal to purchase, the terms of which Lessor is prepared to
accept, or in the event that Lessor has prepared certain terms and
conditions on which Lessor is prepared to sell Phase 1A, all such terms
and conditions shall be disclosed in Lessor's prior written
notification of intent to sell provided to Tenant (hereinafter
"Notice"), and Lessor shall provide Tenant with an opportunity to
negotiate to purchase Phase 1A as set forth below:
(i) Tenant shall have an exclusive right of
negotiation for a period of 60 days after receipt of Lessor's
Notice in which to accept or prepare and present its response
to Lessor, and both prior to and during that 60 day period
Lessor shall not accept any offer of a third party, negotiate
with a third party or solicit offers from any third party.
Lessor hereby agrees that it shall not accept any offer to
purchase from any third party for a price or for terms less
favorable to Lessor than any offer made by Tenant to Lessor
within such 60 day period after Lessor's Notice ("Alternative
Terms") without first notifying Tenant of those Alternative
Terms ("Notice of Alternative Terms"). Lessor shall have no
obligation to provide Notice of Alternative Terms in the event
of an offer to purchase for terms more favorable to Lessor
than an offer made by Tenant, and may accept such offer upon
expiration of the 60 day period of negotiation above. Tenant
shall have a period of 60 days after receipt of the Notice of
Alternative Terms in which to indicate in writing its
agreement to purchase Phase 1A or any part of Phase 1A on the
terms stated in Lessor's Notice of Alternative Terms. If
Tenant does not indicate its agreement to purchase within 60
days of receipt of Lessor's Notice, or Notice of Alternative
Terms, if any be given, Lessor thereafter shall have the right
to sell and convey Phase 1A or part of Phase 1A (subject to
the provisions of this Lease) to a third party on the same
terms or terms more favorable to Lessor as those stated in the
Notice or Notice of Alternative Terms.
(ii) If Lessor does not either (a) sell and
convey Phase 1A or part of Phase 1A within 270 days of the
date of the later of its first Notice to Tenant or its Notice
of Alternative Terms or
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(b) enter into a binding agreement to convey Phase 1A or
part of Phase 1A within 180 days of the date of the later of its first
Notice to Tenant or its Notice of Alternative Terms, any further
transaction shall be deemed a new determination by Lessor to sell and
convey Phase 1A or a part of Phase 1A and all provisions of this
Article 37 shall be applicable.
37.2 Termination or Modification of Lease Upon Purchase.
If Tenant purchases all of Phase 1A, all Holding Rent, Base Rent, Supplemental
Rent, Participation Rent and Additional Rent shall be pro-rated as of the date
title to Phase 1A vests in Tenant and Tenant shall pay all such rent then owing.
If Tenant purchases a part of Phase 1A, Tenant shall pay all Holding Rent, Base
Rent, Supplemental Rent, Participation Rent and Additional Rent then due with
respect to the part of Phase 1A purchased, pro-rated as of the date title to the
part of Phase 1A purchased vests in Tenant, Exhibit A-2 shall be modified to
accurately reflect the part of Phase 1A which remains subject to this Lease and
the rents provided for herein shall be equitably reduced to reflect the sale of
the portion of Phase 1A. If the parties hereto are unable to agree upon the
amount of the reduction of said rents, either party hereto may demand
arbitration with respect thereto, and such dispute shall be subject to
arbitration as prescribed in Article 35 hereof.
ARTICLE 38
PROVISIONS SUBJECT TO APPLICABLE LAW
All rights, powers and remedies provided herein may be
exercised only to the extent that the exercise thereof does not violate any
applicable law, and are intended to be limited to the extent necessary so that
they will not render this Lease invalid, unenforceable or not entitled to be
recorded under any applicable law. If any term of this Lease shall be held to be
invalid, illegal or unenforceable, the validity of the other terms of this Lease
shall in no way be affected thereby.
ARTICLE 39
APPRAISAL
Any appraisal required or permitted hereby shall be made in
the following manner: Not more than 30 days
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after any Taking referred to in Section 20.4(b) or Section 20.4(d) or after the
request of Lessor or Tenant pursuant to any other Section, Lessor and Tenant
shall each appoint one appraiser to determine the value of the interest of
Lessor or Tenant, or both, as the case may be, as required by the provisions of
such Sections, and notice of such appointment shall be given to the other party.
If either party shall fail or refuse so to appoint an appraiser and give notice
thereof within such period, the appraiser appointed by the other party shall
within 30 days thereafter individually make such determination. If the parties
have each so appointed an appraiser within such 30-day period, the appraisers
thus appointed shall proceed to determine such value within 60 days after notice
of their appointment. If such two appraisers shall be unable to agree on such
value within such 60 days, they shall, within 15 days thereafter, join to
appoint a third appraiser and if they fail so to appoint such third appraiser
within such period, the third appraiser shall be appointed by the Presiding
Judge of the Superior Court for the County of Los Angeles, California, and such
third appraiser shall then individually determine such value, such determination
to be binding upon each of the parties. All appraisers appointed hereunder shall
be competent, qualified by training and experience in Los Angeles County,
disinterested and independent and shall be members in good standing of the
American Institute of Real Estate Appraisers or its successor and all appraisal
reports shall be rendered in writing and signed by the appraiser or appraisers
making the report. All costs, fees and expenses of the appraisers appointed by
each party shall be borne by the party appointing such appraiser and of the
third appraiser, if any, shall be borne equally by Tenant and Lessor. The
valuation shall be arrived at assuming that the highest and best use of Phase 1A
or portion thereof being appraised is for the operation of the Phase 1A
Improvements then existing (or most recently located thereon, if they are
destroyed or damaged).
ARTICLE 40
DEFINITIONS
As used in this Lease the following terms have the following
respective meanings:
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Additional Rent: as defined in Section 2.7.
Adjustment Year: the first Adjustment Year shall be the earlier of
either the 8th Full Fiscal Year after the End of the Development Period for the
last of Phases 1A, 2A, 3A and 2C (which term shall have the meaning contained in
Attachment 5 to the Disposition Agreement) to be developed pursuant to the
Disposition Agreement, or the 20th Full Fiscal Year after the Commencement of
Construction of Phase IA. The succeeding Adjustment Years shall be the 10th,
20th, 30th, 40th, 50th, 60th, 70th and 80th Full Fiscal Years, respectively,
after the first Adjustment Year.
Allocated Indebtedness: as defined in Section 23.7.
Annual Accounting Statement: as defined in Section 2.5.
Approved Plans: as defined in Section 3.2.
Average Fixed Mortgage Payment: the weighted average of the fixed installments
of principal and interest over the term of the Initial Mortgage assuming it
remains outstanding until such payments would fully amortize the principal and
interest of the note secured thereby, without regard to the fact that, by its
terms, such note may be called because of the lapse of time; provided such fixed
installments vary over the term based on predetermined interest rates.
Base Rent: as defined in Section 2.2.
Business Day: any day which is not a Saturday, Sunday or legal
holiday on which offices of the State of California are closed for business.
Capital Expenses: those expenditures which are not deemed Operating
Expenses.
Certificate of Completion: as defined in Section 3.6.
Commencement Date: the date that the Memorandum of Lease or Lease for
Phase 1A is recorded in the official records of the County Recorder for Los
Angeles County, California.
Commencement of Construction: the commencement of work after the date of this
Lease on the Original Improvements on Phase 1A in such degree and such scope as
shall, if carried on uninterrupted in the normal course of business, except for
Unavoidable Delays, cause the Original Improvements to be completed by the date
set forth in the Schedule of Performance.
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Completion Date: as defined in Section 3.7.
Consolidated Equity Account: as defined in Section 23.7.
CPA Consolidated Equity Account: as defined in Section 23.7.
CRA Delay: acts or failure to act of Lessor which are not caused by Tenant's
breach of either this Lease or of applicable law.
Deductible Profit: as defined in Section 23.7.
Default: any condition or event which constitutes or which, after notice or
lapse of time or both, would constitute an Event of Default.
Depositary: as defined in Section 18.2.
Developer: as defined in the Disposition Agreement.
Developer's Preferred Return: 20% per annum of Equity minus Deductible Profit
(each as from time to time existing), from and after the End of the Development
Period Of Phase 1A but never less than zero.
Developer's Preferred Return Deficit Account: as calculated as of the end of
each Fiscal Year (commencing after the End of the Development Period) of the
term of this Lease is the excess, if any, of (a) the total of the Developer's
Preferred Return for such Fiscal Year and all prior Fiscal Years commencing
after the End of the Development Period of Phase 1A over (b) the Net Cash Flow
for all Fiscal Years commencing after the End of the Development Period of Phase
1A through such Fiscal Year with respect to which the Developer's Preferred
Return Deficit Account is calculated (but if Net Cash Flow in a Fiscal Year is a
negative figure, then for purposes of this calculation, Net Cash Flow for such
Fiscal Year shall be deemed to have been zero).
Development Costs: (a) all payments heretofore or hereafter made and all
obligations heretofore or hereafter incurred (other than for the principal
amount of money borrowed) by Tenant or for its account to the extent that such
payments and such obligations shall have been made or incurred, directly or
indirectly, in connection with the leasing of Phase 1A, the Disposition
Agreement and the construction and development of the Original Improvements,
including, without
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limitation, or duplication, amounts paid or payable by the Tenant or for its
account prior to the End of the Development Period of Phase 1A on account of:
(i) demolition (recognizing that Lessor shall be responsible for
delivery of Phase 1A initially, cleared of all surface and subsurface
obstructions and improvements and of all rubble), excavation, site
improvement and off-site improvement costs (recognizing that Lessor
shall be responsible as provided in the Disposition Agreement for
certain off-site improvements) and/or contracts incurred with respect
to buildings and improvements upon Phase 1A;
(ii) payments, including without limitation, progress or partial
payments, to or for the account of a contractor or contractors engaged
by or on behalf of Tenant to construct and develop the Original
Improvements or any part thereof, including construction management
fees and contractor's profit and including payments to utilities; and
provided that in the event that Tenant acts as its own contractor or
construction manager, a construction fee or profit not in excess of
fair market rates;
(iii) all pre-development costs incurred in connection with Phase 1A
and the entire Site by the Developer under or in connection with the
Disposition Agreement prior to one year after commencement of
construction of Phase 1A including without limitation all costs
incurred after July 10, 1980 in connection with the negotiation of the
Disposition Agreement, this Lease, the Museum Agreement, the Museum
Lease and other documents contemplated herein or in the Disposition
Agreement;
(iv) costs of labor and services;
(v) costs of materials, supplies, machinery, plant equipment and
apparatus acquired or used less the salvage value, if any, of any items
disposed of (including rental charges for machinery, equipment or
apparatus hired);
(vi) taxes, rentals, licenses, permits, levies, royalties, duties,
excises and assessments; casualty, surety bonds and other insurance
premiums;
(vii) landscaping and other site improvements;
(viii) any on or off-site, road and/or other improvements;
(ix) cost of acquiring or providing required parking where not
included elsewhere in this definition;
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(x) Holding Rent, Base Rent, Supplemental Rent and any other sums
payable under this Lease plus utilities, realty taxes and other such
expenses;
(xi) the Special Trust Account for the Minority Business Enterprise
Program to the extent retained by Lessor and all costs otherwise
incurred in connection with compliance with all Minority Business and
other requirements imposed upon or borne by Tenant or for its account
under the Disposition Agreement or this Lease to the extent not
deducted from Net Cash Flow as an Operating Expense;
(xii) architectural, engineering and consulting fees and expenses;
(xiii) promotional and advertising expenses and property management
fees;
(xiv) tenant allowances and improvements;
(xv) space planning costs;
(xvi) lease takeover costs (on a net basis);
(xvii) leasing and re-leasing commissions, fees and expenses;
(xviii) salary and employee benefit costs directly related to Phase 1A
which are not excluded as Development Costs under clause (iii) of
paragraph (d) below;
(xix) interest and other charges (including without limitation
penalties and contingent payments) incurred, including without
limitation, interest and other charges on secured or unsecured interim
and/or permanent financing and on line of credit and gap financing and
other types of credit and interest upon equity funds of Tenant invested
in connection with the payment of any other Development Costs
(including without limitation the amounts from time to time deemed
accruing under (c) below) as though interest were charged therefore at
the rate which could be or is obtained for any interim financing of the
development at that time; standby fees, discounts, fees for letters of
credit (including without limitation the letters of credit for the Good
Faith Deposit and the Special Trust Account under the Minority Business
Enterprise Program), accommodation fees, contingency fees, guarantee
fees and all other fees and payments however denominated and
commissions in connection with such financing and all other costs in
connection with the creation and implementation of such financing, such
as (but without limitation) broker's fees, legal fees, appraiser's fees
and trustee fees and expenses in connection with any of the foregoing;
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(xx) accounting fees and expenses;
(xxi) legal fees and expenses;
(xxii) the amount of all operating costs and expenses relating to the
Phase 1A Improvements prior to the end of the Development Period of
Phase 1A (as reported in accordance with generally-accepted accounting
principles), including, without any limitation, cost of utilities,
wages and benefits paid to on-site personnel, cost of non-capital
repairs and replacements, insurance premiums, cost of supplies, heating
and air-conditioning costs, cost of legal and auditing services for
Phase 1A and management fees;
(xxiii) the amount of all costs incurred with regard to any of the
following items, to the extent that they relate to the initial lease of
any space in Phase 1A, even if such costs are incurred after the End of
the Development Period of Phase 1A: (w) tenant allowances and
improvements; (x) space planning costs; (y) lease takeover costs (on a
net basis) and (z) leasing commissions, fees and expenses; and
(xxiv) any amount paid by Tenant to Lessor in lieu of construction of
the Museum pursuant to the Disposition Agreement;
(xxv) less any payments made by Lessor or others on its behalf to
Tenant for the construction of Angel's Flight and the Future Transit
Tunnel and Station, if any;
(b) less the amount of all revenues of Tenant (other than loan
proceeds, awards for any Taking, or insurance proceeds) as determined from the
actual gross cash revenues received with respect to the operation or use of
Phase 1A prior to the End of the Development Period of Phase 1A, including,
without limitation, rentals and tenant recoveries but not including any tenant
reimbursements or deposits from tenants;
(c) plus an amount equal to 6% of paragraph (a), such amount to be
deemed accruing as each respective item of paragraph (a) is paid.
(d) It is agreed that the following shall be excluded from the
calculation of Development Costs:
(i) any charge, expense or allowance for the overhead (including
office rental expense) and general and administrative expenses of
Tenant and its partners;
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(ii) any salary, other compensation and benefits to any of the
officers or employees of Persons which are directly or indirectly
partners in Tenant with respect to any portion of the time spent by
such officers or employees on the Phase 1A Improvements or in
connection with Tenant;
(iii) any salary, other compensation and benefits to the General
Manager and any other employees of Tenant who are located either off
Phase 1A or are not utilized by Tenant in the supervision of, or
performance of, construction of the Phase 1A Improvements; and
(iv) any fee or allowance to Tenant and its partners for profit in
connection with the Phase 1A Improvements; provided that Tenant, at its
option may cause Tenant or its partners or their affiliates to perform
services or provide materials in connection with the development of the
Phase 1A Improvements and Tenant shall be entitled to include as
Development Costs a profit on such services or materials which does not
cause the cost of such services or materials to be in excess of fair
market rates.
Disposition Agreement: as defined in Recital C.
Effective Interest Rate: as defined in the definition of Participation Rent
Debt Service.
End of the Development Period of Phase 1A: the earliest of (i) the first day of
the first calendar month following the month in which 75% of the Pro Forma Rent
Roll from Occupancy Tenants of retail and office leasable area in the Original
Improvements is being paid by Occupancy Tenants in possession or (ii) 60 months
from the date of this Lease, subject to extension by one day for each day of
Unavoidable Delay in construction of the Original Improvements (other than
delays in the construction of the Museum Building) or (iii) such day, after the
Completion Date, Tenant designates as the End of the Development Period of Phase
1A.
Equity: the total Development Costs of Phase 1A, less the total principal amount
funded of the greater of (i) the Initial Mortgage or (ii) the Mortgage at any
subsequent time on Phase 1A, but not less than zero.
Equity Account: as defined in Section 23.7
Escalation Rent: as defined in Section 2.3
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Escalation Rent Debt Service: Average Fixed Mortgage Payments or, if there be no
Average Fixed Mortgage Payments, the Fixed Mortgage Payments plus Participation
Mortgage Payments due on the Initial Mortgage and if such be retired, the Fixed
Mortgage Payments plus Participation Mortgage Payments which would be due if the
Initial Mortgage remained outstanding.
Escalation Rent Net Cash Flow: cash received from operations from Phase 1A less
all amounts paid for Operating Expenses (including, without limitation, all
monies paid as an operating subsidy to the Museum and all other payments
allocable to Phase 1A made under the REA), amortization over the initial term of
any Occupancy Lease of tenant improvements paid by Tenant after the End of the
Development Period of Phase 1A, Escalation Rent Debt Service, Base Rent,
Escalation Rent and Additional Rent, but not deducting capital expenses and
leasing or re-leasing expenses.
Event of Default: as defined in Article 24.
Fiscal Year: The Tenant shall establish the Fiscal Year for Phase 1A by giving
notice of the expiration date of the first Fiscal Year to Lessor within 90 days
after the End of the Development Period of Phase 1A. Such expiration date shall
be not more than 365 days after the End of the Development Period of Phase 1A.
The first Fiscal Year shall be the period from the End of the Development Period
of Phase 1A through the expiration date of such first Fiscal Year and subsequent
Fiscal Years shall be the successive twelve month periods ending on the yearly
anniversary of such expiration date, except the last Fiscal Year shall be the
period ending on the last day of the term of this Lease and commencing on the
day after the expiration date of the last prior Fiscal Year.
Fixed Mortgage Payment: the fixed payments of principal and interest (or either)
called for in a Mortgage.
Full Fiscal Year: a Fiscal Year consisting of at least 365 days.
Future Transit Tunnel and Station: as defined in Section 3.1.
Holding Period: The Holding Period (which will commence on the earlier of the
date on which construction actually commences or (subject only to extension to
the extent caused by a CRA Delay), on the earlier of the date of this Lease or
September 1, 1983 and continues, subject to the next sentence, for 42 months,
whether or not construction actually commences on that date or is deferred as
permitted below).
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Notwithstanding the previous sentence, the Holding Period for Phase 1A
shall terminate on the first day of the first month following the month in which
Tenant receives from Occupancy Tenants 75% of the Pro Forma Rent Roll prepared
by Tenant and submitted by Tenant to Mortgagee or Mortgagees (with a copy given
to Lessor).
Holding Rent: as defined in Section 2.1.
Impositions: all taxes, assessments (including, without limitation, all
assessments for public improvements or benefits, whether or not commenced or
completed prior to the date hereof and whether or not to be completed within the
term of this Lease), water, sewer or similar rents, rates and charges, excises,
levies, license fees, permit fees, inspection fees and other authorization fees
and other charges in each case, whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character (including all
interest and penalties thereon), which at any time during or in respect of the
term of this Lease may be assessed, levied, confirmed or imposed on or in
respect of or be a lien upon Phase 1A or any part thereof.
Initial Mortgage: the first Mortgage placed on Phase 1A if such Mortgage has a
term of at least 15 years prior to the date on which it may be called or become
due (other than by reason of default) following the date of its first
disbursement and which provides for amortization over a period of at least 30
years and any renewal, extension or replacement of such Mortgage entered into
during such amortization period not in excess of the principal balance of such
Mortgage at the time of such renewal, extension or replacement.
Institutional Investor: an insurance company, savings bank, trust company or
commercial bank (acting as trustee under any trust or under any public or
private indenture or otherwise), savings and loan association, real estate
investment trust, pension fund, labor union, college, university, church,
charitable or other eleemosynary organization, company or foundation having
gross assets of more than $25,000,000, any government or any agency of any
government or entity owned in substantial part by any government or agency
thereof or any other Person to which the offering of the Mortgage was exempt
from registration under Section 4(2) of the Securities Act of 1933, as amended
or any successor provision or is approved in writing by Lessor.
Insurance Requirements: all terms of an insurance policy covering or
applicable to Phase 1A or any part thereof, all requirements of the issuer of
any such policy, and all orders, rules, regulations and other
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requirements of the National Board of Fire Underwriters (or any other body
exercising similar functions) applicable to or affecting Phase 1A or any part
thereof or any use or condition of Phase 1A or any part thereof.
Interest Rate: as defined in Section 2.5.
Lease: this Lease, as at the time amended, modified or supplemented.
Lease Term: as defined in Section 1.2.
Legal Requirements: all laws, statutes, codes, acts, ordinances, orders,
judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of all governments, departments,
commissions, boards, courts, authorities, agencies, officials and officers,
foreseen or unforeseen, ordinary or extraordinary, which now or at any time
hereafter may be applicable to Phase 1A or any part thereof or any of the
adjoining sidewalks, curbs, streets or ways, or any use or condition of Phase 1A
or any part thereof.
Lender: as defined in Section 23.7.
Lender's Account: as defined in Section 23.7.
Lender's Interest: as defined in Section 23.7.
Lessor: as described on page 1 of this Lease.
Market Interest Rate: as defined in definition of Participation Rent Debt
Service.
Minority Business Enterprise Credit: that portion of the credit provided to the
Developer under Article V B of Attachment No. 6 to the Disposition Agreement
entitled Equal Employment Opportunity Minority and Women Business Enterprises
Participation Plan to the Disposition Agreement, as is allocated by Developer to
the respective Phases.
Minority Business Enterprise Program: the program provided for in Attachment
No. 6 to the Disposition Agreement.
Mortgage: a mortgage of or deed of trust on Tenant's interest under this Lease,
if the mortgagee or beneficiary initially named thereunder is an Institutional
Investor or Institutional Investors or is the assignor of the leasehold estate
to the mortgagor or trustor thereunder.
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Mortgagee: the holder of a Mortgage. Nothing herein shall limit the assignment
of a Mortgage.
Museum Agreement: as defined in Recital E.
Museum Airspace: as defined in Recital E.
Museum Building: as defined in Recital E.
Museum Corporation: as defined in Recital E.
Museum Lease: as defined in Recital E.
Net Cash Flow: cash received by Tenant from operations from Phase 1A in each
Fiscal Year after the End of the Development Period of Phase 1A less all amounts
paid after the End of the Development Period of Phase 1A in each such Fiscal
Year for (i) Operating Expenses (including, without limitation, all monies paid
as an operating subsidy to the Museum and all other payments allocable to Phase
1A made under the REA); (ii) Capital Expenses and other expenses (including,
without limitation, expenses for renovation and equipment replacements) of Phase
1A to the extent not included in the Development Cost; (iii) leasing and
re-leasing expenses; (iv) Participation Rent Debt Service; (v) Base Rent; (vi)
Supplemental Rent; (vii) Escalation Rent and (viii) Additional Rent.
Net Operating Income: the cash revenue received by Tenant in a Fiscal Year
from operations from Phase 1A less all amounts paid in such Fiscal Year for:
Operating Expenses (including, without limitation, all monies paid as an
operating subsidy to the Museum and all other payments allocable to Phase 1A
made under the REA); leasing and re-leasing expenses; allowance for renovation
and equipment replacements; Base Rent; Escalation Rent and Additional Rent.
Net Worth: as of a particular date the net book value (after deducting related
depreciation, obsolescence, amortization, valuation and other property reserves)
at which all assets of a Person and all subsidiaries of that Person would be
shown on a consolidated balance sheet; minus the amount at which liabilities
(other than capital stock and surplus) would be shown on such balance sheet, all
as determined in accordance with generally accepted accounting principles
consistently applied.
New Mortgage: as defined in Section 23.4.
Notice of Alternative Terms: as defined in Section 37(c).
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Notice of Nonresponsibility: as currently provided in California Civil Code
Section 3094, and as such Section may be amended from time to time.
Occupancy Lease: any lease of any space constituting part of the Phase 1A
Improvements which contains a provision that in the event of termination or
earlier expiration of this Lease, the lessee thereunder will, at the request of
Lessor, attorn to and recognize Lessor as landlord under such lease, subject to
and on the same terms as set forth in Exhibit D to this Lease.
Occupancy Tenant: any lessee under any Occupancy Lease.
Operating Expenses: all expenses incurred in the operation of Phase 1A under or
pursuant to this Lease, including without limitation those incurred by Tenant
for any insurance, whether or not required to be carried hereunder and any
reasonable management fee charged by Tenant, if it acts as manager or any
management fee charged by a third party, if Tenant is not acting as manager.
Original Improvements: as described in Section 3.2.
Participation Mortgage Payments: payments which are required to be paid to
Mortgagee as interest or other compensation to the lender or as principal, or
both, under a Mortgage, in addition to, or in lieu of, either Fixed Mortgage
Payments, or, in the case of the calculation of the Escalation Rent Debt
Service, the Average Fixed Mortgage Payments, if any.
Participation Rent: as defined in Section 2.4.
Participation Rent Debt Service: For so long as the Initial Mortgage remains
outstanding, the amounts payable under (a), (b) and (c) below shall be the
actual payments due thereunder. If the Initial Mortgage has been released, the
amounts payable under (a), (b) and (c) below shall be the amounts which would
have been payable if the Initial Mortgage remained outstanding. Participation
Rent Debt Service is (a) Fixed Mortgage Payments under the Initial Mortgage plus
(b) Participation Mortgage Payments under the Initial Mortgage, plus (c) the
value of any bonus by way of any equity interest (including without limitation
any partnership interest, a share of partnership income or cash flow [other than
to the extent already included in Participation Mortgage Payments], and any
option to acquire or receive any partnership interest in Phase 1A or the
partnership), or other right exacted by the lender under the Initial Mortgage in
connection with its loan or its commitment to make a loan to the extent
69
such bonus or other thing of value is not paid for by the lender at the fair
market value of said bonus at the time said bonus is transferred to the lender
or its designee, but the total of the interest payable under (a), (b) and (c)
("Effective Interest Rate") shall not exceed the market interest rate ("Market
Interest Rate"), if any, for such loan taking into account all relevant factors.
At the time Tenant delivers the commitment or portions thereof to Lessor as
contemplated in Section 215 of the Disposition Agreement, Tenant shall give
notice to Lessor that Tenant does or does not assert that a bonus as described
in clause (c) above is being granted to the lender, and if Tenant asserts that
such a bonus is being granted, the value of such bonus as estimated by Tenant
and the basis of such estimation. If Lessor does not agree with the value of
such bonus, if any, or asserts that the Effective Interest Rate is in excess of
the Market Interest Rate, then within a 30-day period after both (1) the giving
of such notice as described in the preceding sentence and (2) the delivery of
either the commitment or portions thereof pursuant to Section 215 of the
Disposition Agreement, Lessor shall give notice to Tenant of such disagreement
and the disputed matters shall be submitted to appraisal as provided in Article
39. In the event Lessor requests disclosure of additional portions of the
commitment pursuant to Section 215(1) of the Disposition Agreement, the 30-day
period referred to in the preceding sentence shall be measured from the date of
Tenant's delivery to Lessor of such additional portions. The decision of any two
of such appraisers who agree shall be binding and if they cannot agree, then the
value of the bonus or Market Interest Rate, as the case may be, shall be
determined by establishing the average between the two closest values or the
Market Interest Rate, as the case may be, as determined by two of three
appraisers. The value of the bonus so determined shall then be amortized equally
over the amortization period of the loan.
Participation Rent Net Cash Flow: for a Fiscal Year is the excess, if any, of
(a) the Net Cash Flow for such Fiscal Year with respect to which Participation
Rent is being calculated, over (b) the sum of (i) the Developer's Preferred
Return for such Fiscal Year plus (ii) the Developer's Preferred Return Deficit
Account, if any, calculated as of the end of the Fiscal Year preceding the
Fiscal Year with respect to which Participation Rent is being calculated.
Permitted Exceptions: as defined in Section 1.1.
Person: an individual, a corporation, an association, a partnership, a joint
venture, an organization or other business entity, or a governmental or
political unit or agency.
Phase and Phases: as defined in Recital B.
70
Phase 1A Improvements: as defined in Section 3.8, but, after the Completion Date
of the Museum Building, such term shall not include the Museum Building.
Phase 1A: as shown on Exhibit A-l, but after quitclaim of the Museum Airspace
not including the Museum Airspace.
Phase 1B: as shown on Exhibit A-l.
Phase 1C: as shown on Exhibit A-l.
Phase 2A: as shown on Exhibit A-l.
Phase 2B: as shown on Exhibit A-l.
Phase 2C: as shown on Exhibit A-l.
Phase 3A: as shown on Exhibit A-l.
Phase 3B: as shown on Exhibit A-l.
Preferred Capital Contribution: the capital contribution entitled to a preferred
return pursuant to Paragraphs 3d and e of Exhibit A to Attachment No. 14 to the
Disposition Agreement.
Profit: as defined in Section 23.7
Pro Forma Escalation Rent Net Cash Flow: the total of the rent received from
all occupied spaces plus Tenant's quoted rent for all vacant spaces after
deducting a reasonable vacancy factor as projected by Tenant in its latest
application to a prospective Mortgagee less the sum of Tenant's estimate of
Operating Expenses when full tenancy is achieved, amortization over the initial
term of any Occupancy Leases in force at the applicable time of tenant
improvements paid by Tenant, the average Escalation Rent Debt Service, Base
Rent, and Additional Rent for the fifth and sixth Fiscal Years, preceding the
first Adjustment Year, but not deducting capital expenses and leasing or
re-leasing expenses.
Pro Forma Rent Roll: the projected rent roll prepared by Tenant and submitted by
it to the Institutional Investor which has committed to provide permanent
financing for Phase 1A.
Project: the development, operation and leasing of the Site by Developer.
71
Projected Net Operating Income: Net Operating Income for the first year after
refinancing as projected by Tenant in its application to a prospective New
Mortgagee in connection with a refinancing under Section 23.4, based upon rents
agreed to be paid under signed leases and the fair present rental value of space
which is or will be vacant within the next Fiscal Year, subject to a reasonable
vacancy factor,
Projected Participation Mortgage Payment: Participation Mortgage Payments for
the first year after refinancing as projected by Tenant in connection with a
refinancing under Section 23.4.
Reciprocal Easement Agreement (REA): as defined in Recital D.
Rent Payment Date: as defined in Section 2.2.
Restoration: as defined in Section 19.2.
Schedule of Performance: as referred to in Section 3.4.
Scope of Development: as referred to in Recital C.
Site: as defined in Recital B.
Substitute Impositions: any tax, charge or levy imposed on the rents reserved to
Lessor under this Lease to the extent (a) the present method of taxation or
assessment shall be so changed that there shall be substituted such tax, charge
or levy in substitution for Impositions on Phase 1A and the Phase 1A
Improvements, (b) such tax, charge or levy would be payable as if Phase 1A and
the Phase 1A Improvements were the only property of Lessor subject to such tax,
charge or levy, and (c) Lessor is legally obligated to pay such tax, charge or
levy.
Supplemental Rent Net Cash Flow: is the cumulative total of Net Cash Flow for
all Fiscal Years from the End of the Development Period of Phase 1A to the end
of the Fiscal Year with respect to which Supplemental Rent Net Cash Flow is
being figured less the cumulative total of the amounts payable with respect to
the Preferred Capital Contribution (or which would be payable if the Preferred
Capital Contribution remained outstanding).
Supplemental Rent: as defined in Section 2.8.
72
Taking: a transfer during the term hereof of all or any part of Phase 1A, or any
leasehold or other interest therein or right accruing thereto, as the result or
in lieu or in anticipation of, the exercise of the right of condemnation or
eminent domain, or a change of grade, street closure or other compensable
government activity affecting Phase 1A or any part thereof, excepting a transfer
to Lessor.
Tenant's Equipment: all fixtures, machinery, apparatus, furniture, furnishings
and other equipment and all temporary or auxiliary structures installed by or at
the request of Tenant or any Occupancy Tenant, if any, in or about Phase 1A or
any part thereof excluding operating equipment for the Phase 1A Improvements.
Total Taking: as defined in Section 20.2.
Unavoidable Delays: delays or defaults due to war, insurrection; strikes,
lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of
the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of
transportation; government restrictions or priority; unusually severe weather;
inability to secure necessary labor, materials or tools; acts of the other
party; acts or failure to act of the City of Los Angeles or any other public or
governmental agency or entity (other than an act or failure to act by Lessor
which shall not excuse performance by Lessor), failures to act of the Museum
Corporation required under the Museum Agreement but only to the extent affecting
the construction of the Museum Building and related portions of Phase 1A or any
other causes beyond the control or without the fault of the party claiming an
extension of time to perform; provided that failure to lease, sell or finance is
not an Unavoidable Delay. An extension of time for any such cause shall be for
the period of the enforced delay and shall commence to run from the time of the
commencement of the cause if notice by the party claiming such extension is
given to the other party within thirty (30) days after the commencement of the
cause.
ARTICLE 41
NOTICES
All notices and other communication hereunder shall not be effective
unless in writing and shall be deemed to have been given when mailed by
first-class registered or certified mail, return receipt requested, postage
prepaid or delivered, addressed (a) if to Lessor, Attention: Administrator, at
its address set forth above, or at such other address as Lessor shall have
furnished in writing to Tenant, (b) if to Tenant, at its address set
73
forth above, or at such other address or addresses as Tenant shall have
designated in writing to Lessor (with copies to its partners at the addresses
and to the attention of the persons set forth in Exhibit E or at such other
address or addresses as they shall have designated to Lessor in writing); or (c)
if to any Mortgagee or Mortgagees, at such address or addresses as Mortgagee or
Mortgagees shall have furnished to Lessor and Tenant in writing. Notices which
are mailed shall be deemed delivered two Business Days after deposit in the mail
as herein provided.
ARTICLE 42
ATTORNEYS' FEES
Should any party hereto institute any action or proceeding in court or
before an arbitrator to enforce any provision hereof or for damages by reason of
an alleged breach of any provision of this Lease, the prevailing party shall be
entitled to receive from the losing party, in addition to the court or
arbitration costs incurred by the prevailing party, such amount as the court or
arbitrator may adjudge to be reasonable attorneys' fees for the services
rendered the prevailing party in such action or proceeding.
ARTICLE 43
LIMITED LIABILITY FOR TENANT
Notwithstanding Section 26.2 or anything in this Lease to the contrary,
the liability of Tenant under this Lease shall be limited solely to the interest
of Tenant in Phase 1A, provided, however, that the partners in Tenant shall each
be obligated to pay to Lessor the amount of any unpaid claim under this Lease
for Holding Rent, Base Rent, Escalation Rent, Supplemental Rent, Participation
Rent or Additional Rent, but only to the extent that the sum of the Net Cash
Flow plus Participation Rent Debt Service minus the sum of Fixed Mortgage
Payments and Participation Mortgage Payments (in each case for the Fiscal Year
with respect to which such unpaid Holding Rent, Base Rent, Escalation Rent,
Supplemental Rent or Participation Rent is due), is a positive figure. Except as
provided in the preceding sentence no partner of Tenant, nor any such partner's
separate property shall be personally liable for any claim arising out of or
related to this Lease; provided a deficit capital account of a partner in Tenant
shall not be deemed to be an interest of Tenant or any asset or property of
Tenant.
74
Further, the liability of Metropolitan Structures to the extent arising
out of or related to this Lease is limited solely to the assets and properties
of Metropolitan Structures. No partner of Metropolitan Structures nor any such
partner's separate property, shall be personally liable for any claim arising
out of or related to this Lease. A deficit capital account of a partner of
Metropolitan Structures shall not be deemed an asset or property of Metropolitan
Structures.
ARTICLE 44
MISCELLANEOUS
No provision of this Lease may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought. This
Lease shall be binding upon and inure to the benefit of and be enforceable by
the respective successors and assigns of the parties hereto and is not and shall
not be for the benefit of any third parties other than such successors and
assigns. The headings in this Lease are for purposes of reference only and shall
not limit or define the meaning hereof. This Lease may be executed in any number
of counterparts, each of which is an original, but all of which shall constitute
one instrument. This
75
Lease is executed and delivered in and shall be governed and construed under the
laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first written above.
"Lessor"
THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY
OF LOS ANGELES, CALIFORNIA
Approved:
/s/ Herbert M. Weiser By: /s/ Edward Helfeld
General Counsel -----------------------
"Tenant"
BUNKER HILL ASSOCIATES
a general partnership
By California Plaza Associates
a California limited
partnership,
General Partner
By Cadillac Fairview/
California, Inc.,
a California corporation
its general partner
By: /s/ Martin Seaton
----------------------
Pres.
By Metropolitan Structures,
an Illinois general
partnership
General Partner
By: Metco Properties,
an Illinois limited
partnership
General Partner
By: /s/ Alan Levinson
----------------------
Partner
76
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On August 25, 1983, before me, the undersigned, a Notary Public in and
for said State, personally appeared EDWARD HELFELD, known to me to be the
Administrator of THE COMMUNITY REDEVELOPMENT AGENCY of the City of Los Angeles,
California, a body corporate and politic, and known to me or proved to me on the
basis of satisfactory evidence to be the person who executed the within
instrument on behalf of The Community Redevelopment Agency of the City of Los
Angeles, California and acknowledged to me that such Agency executed the within
instrument pursuant to its bylaws or a resolution of its Members of the Board of
said Agency.
Witness my hand and official seal.
OFFICIAL SEAL /s/ Reba Tessel
REBA TESSEL ------------------------
NOTARY PUBLIC CALIFORNIA Notary Public
PRINCIPAL OFFICE IN
LOS ANGELES COUNTY
MY COMMISSION EXPIRES JUNE 20, 1986
(SEAL)
77
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On August 25, 1983, before me, the undersigned, a Notary Public in and
for said State, personally appeared Martin Seaton, personally known to me or
proved to me on the basis of satisfactory evidence to be the person who executed
the within instrument as the President of CADILLAC FAIRVIEW/CALIFORNIA, INC., a
California corporation, the corporation that executed the within instrument as
general partner of CALIFORNIA PLAZA ASSOCIATES, a California limited
partnership, the partnership that executed the within instrument as a general
partner of BUNKER HILL ASSOCIATES, the partnership that executed the within
instrument, and acknowledged to me that such corporation executed the same as
such general partner of a partnership which is general partner of such
partnership, and that such partnership executed the same.
WITNESS my hand and official seal.
OFFICIAL SEAL /s/ Reba Tessel
REBA TESSEL ------------------------
NOTARY PUBLIC CALIFORNIA Notary Public
PRINCIPAL OFFICE IN
LOS ANGELES COUNTY
MY COMMISSION EXPIRES JUNE 20, 1986
(SEAL)
78
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On August 25, 1983, before me, the undersigned, a Notary Public in and
for said State, personally appeared ALAN LEVINSON, personally known to me or
proved to me on the basis of satisfactory evidence to be the person who executed
the within instrument as a general partner of METCO PROPERTIES, an Illinois
limited partnership that executed the within instrument as one of the general
partners of METROPOLITAN STRUCTURES, an Illinois general partnership, the
partnership that executed the within instrument as a general partner of BUNKER
HILL ASSOCIATES, a California general partnership, the partnership that executed
the within instrument and acknowledged to me that such partnership executed the
same as such general partner of a partnership which is general partner of such
partnership and that such partnership executed the same.
WITNESS my hand and official seal.
OFFICIAL SEAL /s/ Reba Tessel
REBA TESSEL ------------------------
NOTARY PUBLIC CALIFORNIA Notary Public
PRINCIPAL OFFICE IN
LOS ANGELES COUNTY
MY COMMISSION EXPIRES JUNE 20, 1986
(SEAL)
79
EXHIBIT A
TO PHASE 1A LEASE
DESCRIPTION OP SITE
PARCEL 1:
That portion of Grand Avenue, 110 feet wide as shown and dedicated on the map of
Tract No. 28761, in the City of Los Angeles, County of Los Angeles, State of
California, as per map recorded in Book 926 Pages 5 to 8 inclusive of Maps, in
the office of the County Recorder of said County, and as shown on the ALTA
Survey (as hereinafter defined) described as follows:
Beginning at the most Northerly corner of Lot 2 of said Tract 28761; thence
along the Northwest line of Lot 2 and its Southwesterly prolongation South 37
degrees 45' 33" West 266.94 feet to the Southwest line of said Tract; thence
along said Southwest line North 52 degrees 14' 27" West 15.00 feet to the most
Westerly corner of said Tract; thence along the boundary of said Tract as
follows: North 37 degrees 45' 33" East 236.95 feet and South 52 degrees 11'
43" East 8.00 feet and North 37 degrees 45' 33" East 30.00 feet to the
Northwest prolongation of the Northeast line of said Lot 2; thence along said
prolongation South 52 degrees 11' 43" East 7.00 feet to the point of beginning.
EXCEPT therefrom any portion within the lines of General Thaddeus Kosciuszko Way
as shown on said map and as shown on the ALTA Survey (as hereinafter defined).
ALSO EXCEPT that portion of Second Street, below the surface of said land,
within the unvacated portion thereof as set out in document recorded June 4,
1979 as Instrument No. 79-602882 of Official Records of said County as shown on
Sheet 3 of Survey entitled "Survey for Bunker Hill Associates" dated March 17,
1983, made by Psomas & Associates, Santa Monica, California (said survey being
hereinafter called "ALTA Survey").
PARCEL 2:
That portion of Grand Avenue, formerly Charity Street, 80 feet wide, as shown on
the Map of Beaudry Tract in the City of Los Angeles, County of Los Angeles,
State of California as per map recorded in Book 1, Pages 401 and 402 of
Miscellaneous Records in the office of the County Recorder of said County, and
as shown on the ALTA Survey, bounded on the Northwest by the center line of said
80 feet avenue and bounded on the Southwest by the Southwest line and its
Northwesterly prolongation of Tract No. 28761
as per map recorded in Book 926 pages 5 to 8 inclusive of Maps, in the office of
the County Recorder of said County, bounded on the Southeast by the
Southeasterly line of said Grand Avenue and its Northeasterly and Southwesterly
prolongations thereof and bounded on the Northeast by the center line of Second
Street, 60 feet wide, as shown on said Map.
PARCEL 3: (DELETED)
PARCEL 4:
That portion of the Northwest half of Olive Street, 80 feet wide, as shown on
the Map of Beaudry Tract, in the City of Los Angeles, County of Los Angeles,
State of California, as per map recorded in Book 1 Pages 401 and 402 of
Miscellaneous Records in the office of the County Recorder of said County and as
shown on the ALTA Survey, bounded Southeasterly by the Northwesterly
prolongation of the tangent portion of the Southwest line of Lot 5 of Tract No.
30781, as per map recorded in Book 897, pages 8 to 12 inclusive of Maps, records
of said County and bounded Northeasterly by a line parallel with and distant
Northeasterly 420 feet, measured at right angles, from the Northwesterly
prolongation of the tangent portion of the Southwest line of Lot 5 of said Tract
No. 30781 and bounded Northwesterly by the Northwesterly line and its
Northeasterly and Southwesterly prolongations of said Olive Street and bounded
Southeasterly by the center line of said Olive Street as said center line is
shown on the map of said Tract No. 30781.
EXCEPT that portion of said land below a plane which lies 17 feet above the
street level of Olive Street, as retained and unvacated as said portion is set
out in City of Los Angeles Ordinance No. 150,763 and as delineated on street
vacation maps on sheets 4 and 5 of 7 in volume 23, page 68 and as shown on
Sheets 5 and 6 of the ALTA Survey.
PARCEL 4-A:
That portion of the Northwest half of Olive Street, 80 feet wide, as shown on
the map of Beaudry Tract, in the City of Los Angeles, County of Los Angeles,
State of California, as per map recorded in Book 1 pages 401 and 402 of
Miscellaneous Records, in the office of the County Recorded of said County, and
as shown on the ALTA Survey, bounded Southwesterly by the Northwesterly
prolongation of the tangent portion of the Southwest line of Lot 5 of Tract No.
30781, as per map recorded in Book 897, pages 8 to 12, inclusive of Maps,
Records of said County and
bounded Northeasterly by a line parallel with and distant Northeasterly 420
feet, measured at right angles, from the Northwesterly prolongation of the
tangent portion of the Southwest line of Lot 5 of said Tract No. 30781 and
bounded Northwesterly by the Northwesterly line and its Northeasterly and
Southwesterly prolongations of said Olive Street and bounded Southeasterly by
the center line of said Olive Street as said center line is shown on the map of
said Tract No. 30781.
EXCEPT that portion of said land above and below the surface of said land within
the lines of Olive Street, as vacated, as said portions are set out in City of
Los Angeles Ordinance No. 150,763 and as delineated on street vacation maps on
sheets 4 and 5 of 7 in Volume 23, page 68 as shown on Sheets 5 and 6 of the ALTA
Survey.
PARCEL 4-B:
That portion of the Northwest, half of Olive Street, 80 feet wide, as shown on
the Map of Beaudry Tract, in the City of Los Angeles, County of Los Angeles,
State of California, as per map recorded in Book 1 Pages 401 and 402 of
Miscellaneous Records, in the office of the County Recorder of said County,
bounded Southwesterly by the center line of 4th Street as shown on said Map, and
as shown on the ALTA Survey, and bounded Northwesterly by the Northeasterly
prolongation of the tangent portions of the Southwest line of Lot 5 of Tract No.
30781 as per map recorded in Book 897, pages 8 to 12 inclusive of Maps, Records
of said County and bounded Northwesterly by the Northwesterly line and its
Southwesterly prolongation of said Olive Street and bounded Southeasterly by the
center line of said Olive Street as said center line is shown on the map of said
Tract No. 30781.
ALSO EXCEPT any portion within the limits of 4th Street as shown on said Beaudry
Tract and on Sheet 1 of the ALTA Survey.
PARCEL 5:
That portion of the Northwesterly 5 feet of Olive Street, 90 feet wide as shown
and dedicated on the Map of Tract No. 28761, in the City of Los Angeles, County
of Los Angeles, State of California, as per map recorded in Book 926 Pages 5 to
8 inclusive of Maps, in the office of the County Recorder of said County, and as
shown on the ALTA Survey, lying Southwesterly of the Southeasterly prolongation
of the Northeast line of Lot 2 of said Tract 28761.
PARCEL 6:
That portion of the Northwesterly 5 feet of Olive Street 90 feet wide, as shown
and dedicated on the Map of Tract No. 30780, in the City of Los Angeles, County
of Los Angeles, State of California, as per map recorded in Book 912 Pages 39 to
45 inclusive of Maps, in the office of the County Recorder of said County, and
as shown on the ALTA Survey, bounded Northeasterly by a line parallel with and
distant Northeasterly 420 feet, measured at right angles, from the Northwesterly
prolongation of the tangent portions of the Southwest line of Lot 5 of Tract No.
30781 as per map recorded in Book 897 pages 8 to 12 inclusive of Maps, Records
of said County and bounded Southwesterly by the Northeasterly line of that
certain Future Street shown on said map as having a bearing and distance of 11
North 52 degrees 21' 41" West 5.00 feet."
EXCEPT that portion of said land as retained and unvacated as said portion is
set out in City of Los Angeles Ordinance No. 150,763 and as delineated on Street
Vacation Maps on sheets 4 and 5 of 7 in Volume 23, page 68 and as shown on
Sheets 5 and 6 of the ALTA Survey.
PARCEL 6-A:
That portion of the Northwesterly 5 feet of Olive Street 90 feet wide, as shown
and dedicated on the Map of Tract No. 30780, in the City of Los Angeles, County
of Los Angeles, State of California, as per map recorded in Book 912 Pages 39 to
45 inclusive of Maps, in the office of the County Recorder of said County, and
as shown on the ALTA Survey, bounded Northeasterly by a line parallel with
and distant Northeasterly 420 feet, measured at right angles, from the
Northwesterly prolongation of the tangent portions of the Southwest line of Lot
5 of Tract No. 30781 as per map recorded in Book 897 pages 8 to 12 inclusive of
Maps, Records of said County and bounded Southwesterly by the Northeasterly line
of that certain Future Street shown on said map as having a bearing and distance
of 11 North 52 degrees 21' 41" West 5.00 feet."
EXCEPT that portion of said land as vacated as said portions are set out in City
of Los Angeles Ordinance No. 150,763 and as delineated on Street Vacation Maps
on sheets 4 and 5 of 7 in Volume 23, page 68 and as shown on Sheets 5 and 6 of
the ALTA Survey.
PARCEL 7:
That portion of the Northwest half of Olive Street, 80 feet wide, as shown on
the map of Beaudry Tract, in the City of Los Angeles, County of Los Angeles,
State of California, as per map recorded in Book 1 pages 401 and 402 of
Miscellaneous Records in the office of the County Recorder of said County, and
as shown on the ALTA Survey, bounded Southeasterly by the center of said Olive
Street and bounded Southwesterly by the Southeasterly prolongation of the
Southwest line of Tract No. 28761, as per map recorded in Book 926 Pages 5 to 8
inclusive of Maps, records of said County and bounded Northwesterly by the
Northwesterly line of said Olive Street and its Northeasterly and Southwesterly
prolongation and bounded Northeasterly by the center line of 2nd Street as shown
on the map of said Tract 28761.
EXCEPT therefrom any portion within the lines of Second Street as shown on the
ALTA Survey.
PARCEL 8:
That portion of the Northeast half of 4th Street, as shown on the map of Beaudry
Tract, in the City of Los Angeles, County of Los Angeles, State of California,
as per map recorded in Book 1 Pages 401 and 402 of Miscellaneous Records, in the
office of the County Recorder of said County and as shown on the ALTA Survey,
bounded Southeasterly by the center line of Olive Street as shown on said Map
and bounded Northwesterly by the Southwesterly prolongation of that certain
course in the Southwest line of Lot 4 of Tract No. 30780 as per map recorded in
Book 912, pages 39 to 45, inclusive of Maps of said County, said certain course
shown on said Map as having a bearing and distance of North 37 degrees 49' 24"
East, 18.14 feet
and bounded on the Northeast by the Northeast line of said 4th Street and its
Southeasterly prolongation and bounded on the Southwest by the center line of
4th Street as shown on said Tract No. 30780.
PARCEL 9: (DELETED)
PARCEL 10:
That portion of Second Street, 60 feet wide, as shown on the Map of Beaudry
Tract, in the City of Los Angeles, County of Los Angeles, State of California,
as per map recorded in Book 1 Pages 401 and 402 of Miscellaneous Records in the
office of the County Recorder of said County, and as shown on the ALTA Survey,
bounded on the Northeast by the center line of said Second Street and bounded on
the Southeast by the Northwesterly line of the Southeasterly 7 feet of Grand
Avenue as shown and dedicated on the Map of Tract No. 28761 as per map recorded
in Book 726 Pages 5 to 8 inclusive of Maps, records of said County and bounded
on the Southwest by the Southwest line of said Second Street, and bounded on the
Northwest by the Northeasterly prolongation of the Northwest line of Lot 19 in
Block No. 2 of said Beaudry Tract.
PARCEL 11:
That portion of Second Street, 60 feet wide, as shown on the Map of Beaudry
Tract, in the City of Los Angeles, County of Los Angeles, State of California,
as per map recorded in Book 1 Pages 401 and 402 of Miscellaneous Records in the
office of the County Recorder of said County, and as shown on the ALTA Survey,
bounded on the Northeast by the center line of said Second Street and bounded on
the Southeast by the center line of Olive Street as shown on said Map and
bounded on the Southwest by the Southeasterly prolongation of the Northeast line
of Lot 9 of Block 2 of said Beaudry Tract and bounded on the Northwest by the
Northeast prolongation of the Southeast line of said Lot 9.
PARCEL 12:
All of General Thaddeus Kosciuszko Way as shown and dedicated on the Map of
Tract No. 30780, in the City of Los Angeles, County of Los Angeles, State of
California, as per map recorded in Book 912, Pages 39 to 45 inclusive
of Maps, in the office of the County Recorder of said County and as shown on the
ALTA Survey.
EXCEPT that portion of said land above and below the surface of said land within
the lines of General Thaddeus Kosciuszko Way as retained and unvacated as said
portions are set out in City of Los Angeles Ordinance No. 150,763 and as
delineated on Street Vacation Maps, on sheets 6 and 7 of 7 in Volume 23, page 68
and as shown on Sheets 6 and 7 of the ALTA Survey.
PARCEL 12-A:
All of General Thaddeus Kosciuszko Way as shown and dedicated on the Map of
Tract No. 30780, in the City of Los Angeles, County of Los Angeles, State of
California, as per map recorded in Book 912 Pages 39 to 45, inclusive of Maps,
in the office of the County Recorder of said County and as shown on the ALTA
Survey.
EXCEPT that portion of said land above and below the surface of said land within
the lines of General Thaddeus Kosciuszko Way as vacated, as said portions are
set out in City of Los Angeles Ordinance No. 150,763 and as delineated on Street
Vacation Maps on sheets 6 and 7 of 7 in Volume 23, page 68.
PARCEL 13:
All of General Thaddeus Kosciuszko Way as shown and dedicated on the Map of
Tract No. 28761, in the City of Los Angeles, County of Los Angeles, State of
California, as per map recorded in Book 926 Pages 5 through 8 inclusive of Maps,
in the office of the County Recorder of said County and as shown on the ALTA
Survey.
EXCEPT that portion of said land above and below the surface of said land within
the lines of General Thaddeus Kosciuszko Way as retained and unvacated as said
portions are set out in City of Los Angeles Ordinance No. 150,763 and as
delineated on Street Vacation Maps on sheets 6 and 7 of 7 in Volume 23, page 68
and as shown on Sheets 6 and 7 of the ALTA Survey.
PARCEL 13-A:
All of General Thaddeus Kosciuszko Way as shown and dedicated on the Map of
Tract No. 28761, in the City of Los Angeles, County of Los Angeles, State of
California, as per map recorded in Book 926 Pages 5 through 8 inclusive
7
of Maps, in the office of the County Recorder of said County and as shown on the
ALTA Survey.
EXCEPT that portion of said land above and below the surface of said land within
the lines of General Thaddeus Kosciuszko Way as vacated, as said portions are
set out in City of Los Angeles Ordinance No. 150,763 and as delineated on Street
Vacation Maps, on sheets 6 and 7 of 7 in Volume 23, page 68 and as shown on
Sheets 6 and 7 of the ALTA Survey.
PARCEL 14:
All of 3rd Place as shown and dedicated on the Map of Tract No. 30780, in the
City of Los Angeles, County of Los Angeles, State of California, as per map
recorded in Book 912 Pages 39 to 45 inclusive of Maps, in the office of the
County Recorder of said County and as shown on the ALTA Survey.
PARCEL 15:
Lot 5 of Tract No. 30781, in the City of Los Angeles, County of Los Angeles,
State of California, as per map recorded in Book 897, Pages 8 to 12 inclusive of
Maps, in the office of the County Recorder of said County and as shown on the
ALTA Survey.
PARCEL 15-A:
That portion of the Southeasterly 5 feet of Olive Street, 85 feet wide, as shown
and dedicated on the Map of Tract No. 30781, in the City of Los Angeles, County
of Los Angeles, State of California, as per map recorded in Book 897, Pages 8 to
12 inclusive of Maps, in the office of the County Recorder of said County, and
as shown on the ALTA Survey, bounded on the Northeast by the Northwesterly
prolongation of the most Northeast Northeasterly line of Lot 5 of Tract No.
30781 as per map recorded in Book 897, pages 8 to 12 inclusive of Maps, Records
of said County and bounded on the Southwest by the Northwesterly prolongation of
the tangent portions of the Southwesterly line of said Lot 5.
EXCEPT that portion of said land as retained and unvacated as said portion is
set out in City of Los Angeles Ordinance No. 150,763 and as delineated on Street
Vacation Maps on sheets 4 and 5 of 7 in Volume 23, page 68 and as shown on
Sheets 5 and 6 of the ALTA Survey.
8
PARCEL 15-B:
That portion of the Southeasterly 5 feet of Olive Street, 85 feet wide, as shown
and dedicated on the Map of Tract No. 30781, in the City of Los Angeles, County
of Los Angeles, State of California, as per map recorded in Book 897 Pages 8 to
12 inclusive of Maps, in the office of the County Recorder of said County, and
as shown on the ALTA Survey, bounded on the Northeast by the Northwesterly
prolongation of the most Northeast Northeasterly line of Lot 5 of Tract No.
30781 as per map recorded in Book 897, pages 8 to 12 inclusive of Maps, Records
of said County and bounded on the Southwest by the Northwesterly prolongation of
the tangent portions of the Southwesterly line of said Lot 5.
EXCEPT that portion of said land as vacated as said portion is set out in City
of Los Angeles Ordinance No. 150,763 and as delineated on Street Vacation Maps
on sheets 4 and 5 of 7 in Volume 23, page 68 and as shown on Sheets 5 and 6 of
the ALTA Survey.
PARCEL 15-C:
That portion of the Southeasterly half of Olive Street, 80 feet wide, as shown
on the Map of Beaudry Tract, in the City of Los Angeles, County of Los Angeles,
State of California, as per map recorded in Book 1, Pages 401 to 402 of
Miscellaneous Records, in the office of the County Recorder of said County, and
as shown on the ALTA Survey, bounded Northwesterly by the center of said Olive
Street and bounded Southeasterly by the Southeasterly line of said Olive Street
and on the Northeast by the Northwesterly prolongation of the most Northeast
Northeasterly line of Lot 5 of tract No. 30781 as per map recorded in Book 897,
pages 8 to 12 inclusive of Maps, records of said County and bounded on the
Southwest by the Northwesterly prolongation of the tangent portion of the
Southwesterly line of said Lot 5.
EXCEPT that portion of said land as retained and unvacated as said portion is
set out in City of Los Angeles Ordinance No. 150,763 and as delineated on Street
Vacation, Maps on sheets 4 and 5 of 7 in Volume 23, page 68 and as shown on
Sheets 5 and 6 of the ALTA Survey.
PARCEL 15-D:
That portion of the Southeasterly half of Olive Street, 80 feet wide, as shown
on the Map of Beaudry Tract, in the City of Los Angeles, County of Los Angeles,
State of
9
California, as per map recorded in Book 1, Pages 401 and 402 of Miscellaneous
Records, in the office of the County Recorder of said County, and as shown on
the ALTA Survey, bounded Northwesterly by the center of said Olive Street and on
the Northeast by the Northwesterly prolongation of the most Northeast
Northeasterly line of Lot 5 of Tract No. 30781 as per map recorded in Book 897,
pages 8 to 12 inclusive of Maps, records of said County and bounded on the
Southwest by the Northwesterly prolongation of the tangent portion of the
Southwesterly line of said Lot 5.
EXCEPT that portion of said land as vacated as said portion is set out in City
of Los Angeles Ordinance No. 150,763 and as delineated on Street Vacation Maps
on sheets 4 and 5 of 7 in Volume 23, page 68.
PARCEL 16:
Lots 2, 3 and 4 of Tract No. 30780, in the City of Los Angeles, County of Los
Angeles, State of California, as per map recorded in Book 912 Pages 39 to 45
inclusive of Maps, in the office of the County Recorder of said County and as
shown on the ALTA Survey.
PARCEL 17:
Lot 2 of Tract No. 28761, in the City of Los Angeles, County of Los Angeles,
State of California, as per map recorded in Book 926 Pages 5 to 8 inclusive of
Maps, in the office of the County Recorder of said County and as shown on the
ALTA Survey.
EXCEPT FROM PARCELS 1 THROUGH 17:
All oil, gas and mineral substances together with the right to extract such
substances provided that the surface opening of any well, hole, shaft or other
means of reaching or removing such substances shall not be located within the
Bunker Hill Urban Renewal Project Area as said area is described in an
instrument recorded in Book M-335, Page 106, Official Records and shall not
penetrate any part or portion of said Project Area within 500 feet of the
surface thereof as excepted and reserved in various deeds of record, among them
being those recorded November 5, 1963 in Book D-2245, Page 28 and May 15, 1962
in Book D-1614, Page 654, Official Records.
10
Exhibit A-1
[REVISED PHASING MAP]
EXHIBIT A-2 TO PHASE 1A LEASE
PHASE 1A LEGAL DESCRIPTION
PARCEL 1
Those portions of lots 2 and 3 of Tract No. 30780, in the City of Los
Angeles, County of Los Angeles, State of California, as per map recorded in book
912 pages 39 to 45 inclusive of maps, in the office of the County Recorder of
said County, and those portions of General Thaddeus Kosciuszko Way and 3rd Place
as shown and dedicated on the map of said Tract No. 30780, said portions vacated
per City of Los Angeles Resolution to Vacate No. 82-01653 recorded September 16,
1982, as Document No. 82-943159 in Official Records of said County and as
delineated on Street Vacation maps on sheets 3, 6 and 7 of 7 in volume 23, page
68, and those portions of 3rd Street as shown and dedicated on the map of
Beaudry Tract, as per map recorded in book 1, pages 401 and 402 of Miscellaneous
Records, records of said County described as a whole as follows:
Beginning at the most northerly corner of said lot 3; thence along the
northwesterly line of said lot 3 south 37 degrees 45'41" west 0.08
feet; thence continuing along said northwesterly line and its
southwesterly prolongation south 37 degrees 50'21" west 324.75 feet to
a line parallel with and distant southwesterly 18.70 feet, measured at
right
angles, from the tangent portion of the southwesterly line of said lot
3 and its northwesterly prolongation; thence along said parallel line
south 52 degrees 09'39" east 176.00 feet, to a line parallel with and
distant southeasterly 176.00 feet, measured at right angles, from said
northwesterly line of lot 3 and its southwesterly prolongation, shown
hereinabove as having a bearing of south 37 degrees 50'21" west; thence
along last said parallel line north 37 degrees 50'21" east 162.29 feet;
thence at right angles south 52 degrees 09'39" east 2.54 feet to a line
parallel with and distant southeasterly 178.54 feet, measured at right
angles, from said northwesterly line of lot 3, shown hereinabove as
having a bearing of south 37 degrees 50'21" west, and its northeasterly
prolongation; thence along last said parallel line north 37 degrees
50'21" east 534.25 feet to a line parallel to and distant southwesterly
3.00 feet, measured at right angles, from the southwesterly line of
General Thaddeus Kosciuszko Way, 60 feet wide, as shown on said Street
Vacation maps on sheets 6 and 7 of 7 in volume 23, page
2
68; thence along said parallel line north 52 degrees 13'52" west 169.58
feet to a point in a curve concave to the south having a radius of
20.00 feet, to which a radial line bears north 5 degrees 58'50" east,
said curve being a course in said southwesterly line of General
Thaddeus Kosciuszko Way; thence westerly along said curve through a
central angle of 58 degrees 13'09" an arc distance of 20.32 feet to the
northeasterly prolongation of the northwesterly line of said lot 2;
thence along said northeasterly prolongation and said northwesterly
line of lot 2 south 37 degrees 45'41" west 354.49 feet to the point of
beginning.
Except that portion of said 3rd Street as retained and unvacated as
said portion is set out in City of Los Angeles Resolution to Vacate No.
82-01653 recorded September 16, 1982 as Document No. 82-943159 in
Official Records of said County and as delineated on Street Vacation
maps on sheets 1 and 2 of 7 in volume 23, page 68.
3
PARCEL 2
That portion of 3rd Street as shown and dedicated on the map of Beaudry
Tract, in the City of Los Angeles, County of Los Angeles, State of California,
as per map recorded in book 1, pages 401 and 402 of Miscellaneous Records, in
the office of the County Recorder of said County, as retained and unvacated as
said portion is set out in City of Los Angeles Resolution to Vacate No. 82-01653
recorded September 16, 1982 as Document No. 82-943159 in Official Records of
said County and as delineated on Street Vacation maps on sheets 1 and 2 of 7 in
volume 23, page 68, lying northwesterly of a line parallel with and distant
southeasterly 178.54 feet, measured at right angles, from that certain course
(and its northeasterly prolongation) in the northwesterly line of lot 3 of Tract
No. 30780 as per map recorded in book 912, pages 39 to 45 inclusive of maps,
Records of said County, shown on said Tract as having a bearing and distance of
(north 37 degrees 50'12" east 286.04 feet) and for the purpose of this
description having a bearing of north 37 degrees 50'21" east.
4
PARCEL 3
The easements described in this Parcel 3 shall, upon the completion of
the improvements to said easements herein described, and upon the request of any
party hereto, be re-surveyed and the parties to this Lease shall, if necessary,
enter into an appropriately acknowledged instrument to more accurately describe
the "as-built" easements if the form and substance of the document is acceptable
to each party.
Easement No. 1 - (truck access - South driveway)
A non-exclusive driveway easement for ingress and egress of vehicles
and pedestrians to the truck dock located within the Phase 1A improvements
adjacent to lower Grand Avenue ("Truck Access"), within that portion of 3rd
Place as shown and dedicated on the map of Tract No. 30780, in the City of Los
Angeles, County of Los Angeles, State of California, recorded in book 912 pages
39 to 45 inclusive of maps, in the office of the County Recorder of said County,
said portion of 3rd Place vacated per City of Los Angeles Resolution to Vacate
No. 82-01653 recorded September 16, 1982 as Document No. 82-943159 in official
records of said county and as delineated on street vacation maps on sheet 3 of 7
in
5
volume 23, page 68, said portion lying above an elevation of 347.00 feet and
below an elevation allowing clearance of 15.00 feet above the surface of the
finish grade of improvements, said elevation is based on national geodetic
vertical datum of 1929 per Ordinance No. 150,763 of the City of Los Angeles as
obtained from City of Los Angeles Benchmark No. 12-06750, described as a cut
spike in south curb of 5th Street, 21.6 feet west of Olive Street, at the west
end of a catch basin, elevation = 273.999 feet (1970 adjustment), said portion
described as follows:
Beginning at the intersection of a line parallel with and distant
southwesterly 18.70 feet, measured at right angles, from the
northwesterly prolongation of the tangent portion of the southwesterly
line of lot 3 of said Tract No. 30780, with the southwesterly
prolongation of the northwesterly line of lot 3 of said Tract No.
30780, said northwesterly line shown thereon as having a bearing of
north 37 degrees 50'12" east (north 37 degrees 50'21" east for the
purpose of this description); thence along said southwesterly
prolongation south 37 degrees 50'21" west 31.14 feet; thence south
52 degrees 09'39" east 13.50 feet; thence north 68 degrees 33'12" east
36.22 feet to said line
6
mentioned hereinabove as being parallel with and distant southwesterly
18.70 feet from the northwesterly prolongation of the tangent portion
of the southwesterly line of lot 3; thence along said parallel line
north 52 degrees 09'39" west 32.00 feet to the point of beginning.
Tenant under this Lease has the right and, subject to the terms of this
Lease, shall during the term of this Lease, operate, repair and maintain as long
as the easement shall solely be used for the benefit of the Phase 1A
Improvements or until such earlier time as a new driveway shall be constructed
in a location encompassing the above described easement area by the Developer
(all references herein to "Developer," "Tenant" or "Owner" of a Phase or future
Phase shall refer to the developer, tenant or owner of all or a portion of the
Site pursuant to the Disposition Agreement or such other agreement as may be
executed by the Community Redevelopment Agency of the City of Los Angeles,
California for the development, improvement or occupancy of all or a portion of
the Site.) of Phase 2A, at the cost of said Developer, at which time the
obligation to operate, repair and maintain in good and safe condition the
easement shall be and become the obligation of said Developer.
7
The Developer of Phase 2A may temporarily close the easement for a
period not to exceed sixty (60) calendar days for the construction of the
substructure of the Phase 2A Improvements and new driveway, during which period
of time the Phase 2A Developer shall not be responsible to the Phase 1A Tenant
for any inconvenience, required approvals from the appropriate governmental
authorities or additional costs whatsoever occurring due to said temporary
closure (reference herein to "Phase 2A" or to any "Phase" other than Phase 1A
shall not restrict nor mandate the legal description of or parcelization for
future development by The Community Redevelopment Agency of the City of Los
Angeles, California or any Developer). The Phase 1A Tenant shall cooperate with
the Developer of Phase 2A in connection with the aforementioned construction so
that the said temporary closure shall not exceed sixty (60) calendar days, such
cooperation to include, if required by the Developer of Phase 2A, attachments to
the Phase 1A Improvements. If such attachment is required the Phase 2A Developer
shall hold the Phase 1A Developer harmless for any damage to the Phase 1A
Improvements.
Easement No. 2 - (South stairway)
A non-exclusive easement to erect, maintain and use a cantilevered
stairway to provide pedestrian egress,
8
for the purpose of meeting the requirements of all applicable codes, from the
370' Plaza level of the Phase 1A Improvements to the 385' Plaza sidewalk level
on Phase 1A connecting with upper Grand Avenue, within that portion of 3rd Place
as shown and dedicated on the map of Tract No. 30780, in the City of Los
Angeles, County of Los Angeles, State of California, recorded in book 912 pages
39 to 45 inclusive of maps, in the office of the County Recorder of said County,
said portion of 3rd Place vacated per City of Los Angeles resolution to vacate
No. 82-01653 recorded September 16, 1982 as Document No. 82-943159 in official
records of said county and as delineated on street vacation maps on sheet 3 of 7
in volume 23, page 68, said portion lying above an elevation of 364.00 feet,
said elevation is based on national geodetic vertical datum of 1929 per
Ordinance No. 150,763 of the City of Los Angeles as obtained from City of Los
Angeles Benchmark No. 12-06750, described as a cut spike in south curb of 5th
Street, 21.6 feet west of Olive Street, at the west end of a catch basin,
elevation = 273.999 feet (1970 adjustment), said portion described as follows:
Beginning at the intersection of a line parallel with and distant
southwesterly 18.70 feet, measured at right angles, from the tangent
portion of the southwesterly
9
line of lot 3 of said Tract No. 30780, and its northwesterly
prolongation, with a line parallel with and distant southeasterly 38.50
feet, measured at right angles, from the southwesterly prolongation of
the northwesterly line of lot 3 of said Tract No. 30780, said
northwesterly line shown thereon as having a bearing of north 37
degrees 50'12" east (north 37 degrees 50'21" east for the purpose of
this description); thence along last said parallel line south 37
degrees 50'21" west 9.50 feet; thence along a line parallel with the
southwesterly line of said lot 3 south 52 degrees 09'39" east 40.00
feet; thence along a line parallel with said southwesterly prolongation
of the northwesterly line of said lot 3 north 37 degrees 50'21" east
9.50 feet to said line mentioned hereinbefore as being parallel with
and distant southwesterly 18.70 feet from the southwesterly line of lot
3; thence along said parallel line north 52 degrees 09'39" west 40.00
feet to the point of beginning.
The aforesaid easement is to be relocated within an exit corridor
easement at the expense of and by the Phase 2A Developer; upon the construction
of the Phase 2A
10
improvements, and in such a manner and to such location as shall be approved by
The Community Redevelopment Agency of The City of Los Angeles, California and
the appropriate governmental authorities having jurisdiction over exit
requirements, so as to continue to provide a required legal route of egress from
the Phase 1A Improvements. At the time of such relocation all persons having an
interest in the property upon which such exit corridor easement is located shall
execute and deliver an instrument appropriately acknowledged conveying to the
Tenant of the Phase 1A Lease such easement, under the same terms and conditions
contained herein except for location, as an appurtenance to the Phase 1A Lease
and upon the recordation thereof such stairway easement shall terminate. Upon
such relocation the Phase 1A Tenant shall be responsible, at its own cost, for
the removal of the exit doors located within the Phase 1A Improvements and any
other work required within the Phase 1A Improvements. The Phase 2A Developer, at
its own cost, shall be responsible for the removal of the cantilevered stairway
and the construction required to complete the approved exit corridor including,
without limitation, structural support, fire rated partitions, ceilings,
sprinkler systems, lighting systems, exterior exit doors with hardware, signage
and all other items as shall be required
11
by the appropriate governmental authorities to provide a legal route of egress
from the Phase 1A Improvements.
Upon the completion of the relocated exit corridor and the issuance of
a permanent certificate of occupancy or such other governmental approval as may
be required for such exit corridor the obligation of maintenance, repair and
operation of the exit corridor shall be the responsibility of the Phase 1A
Tenant including, without limitation, the sprinkler system, smoke detectors,
speaker system, lighting system and security system with door monitors, if any,
which shall be connected to such systems in the Phase 1A Improvements; provided
that if the Phase 2A Improvements shall use said exit corridor for egress
purposes the costs of maintenance, repair and operation shall be the
responsibility of the Tenant of Phase 2A, and the Tenant of Phase 1A shall
reimburse the Tenant of Phase 2A for fifty percent (50%) of all such costs,
excluding any mark-up or fees.
The stairway easement is a temporary easement which shall exist until
the construction and the relocation of said easement upon the construction by
the Phase 2A Developer of the exit corridor. The relocated easement is a
permanent easement which shall exist so long as the Phase 1A Improvements (as
from time to time replaced) shall exist.
12
Easement No. 3 - (Southeast stairway and sidewalk)
A non-exclusive stairway and sidewalk easement to provide pedestrian
egress, for the purpose of meeting the requirements of all applicable codes,
from the 360' level of the Phase 1A Improvements to Olive Street, within that
portion of lot 3 of Tract No. 30780, in the City of Los Angeles, County of Los
Angeles, State of California, as per map recorded in book 912 pages 39 to 45
inclusive of maps, in the office of the County Recorder of said County, said
portion lying above an elevation of 340.00 feet, said elevation is based on
national geodetic vertical datum of 1929 per Ordinance No. 150,763 of the City
of Los Angeles as obtained from City of Los Angeles Benchmark No. 12-06750,
described as a cut spike in south curb of 5th Street, 21.6 feet west of Olive
Street, at the west end of a catch basin, elevation = 273.999 feet (1970
adjustment), said portion described as follows:
Beginning at the intersection of a line parallel with and distant
southwesterly 18.70 feet, measured at right angles, from the tangent
portion of the southwesterly line of said lot 3 of Tract No. 30780,
and its northwesterly prolongation with a line parallel with and
distant southeasterly 176.00 feet, measured at right angles, from
13
the southwesterly prolongation of the northwesterly line of said lot 3
of Tract No. 30780, said northwesterly line shown thereon as having a
bearing of north 37 degrees 50'l2" east (north 37 degrees 50'21" east
for the purpose of this description); thence along last said parallel
line north 37 degrees 50'21" east 117.79 feet to the true point of
beginning of this description; thence continuing along last said
parallel line north 37 degrees 50'21" east 43.21 feet; thence south 52
degrees 09'39" east 146.59 feet to the southeasterly line of said lot
3; thence along said southeasterly line south 37 degrees 48'52" west
10.00 feet; thence north 52 degrees 09'39" west 134.59 feet; thence
south 37 degrees 50'21" west 33.21 feet; thence north 52 degrees 09'39"
west 12.00 feet to the true point of beginning.
The aforesaid easement may be relocated by the Developer of the future
Phase within such future Phase upon construction of improvements on said
portion, in such a manner and to such location as shall be approved by The
Community Redevelopment Agency of The City of Los Angeles, California and the
appropriate governmental authorities so as to continue to provide a legal route
of egress from the Phase 1A Improvements. At such time all persons having an
14
interest in the improvements where such means of egress is located shall execute
and deliver to the Tenant of the Phase 1A Lease an instrument appropriately
acknowledged conveying to such Tenant such relocated easement under the same
terms and conditions as contained herein except for location, as an appurtenance
to the Phase 1A Lease and thereupon such non-exclusive stairway and sidewalk
easement granted herein shall terminate. Upon such relocation the Phase 1A
Tenant shall be responsible for the cost of any work required in connection
therewith within the Phase 1A Improvements and the future Phase Developer of the
said future Phase, at its own cost, shall be responsible for removal of the
stairway and constructing all improvements in connection with the relocated
easement.
Upon completion of the relocated easement, the right and obligation of
operation, repair and maintenance of the relocated easement shall be the
responsibility of the Phase 1A Tenant including all facilities and systems which
are to be connected to the existing systems within the Phase 1A Improvements,
including, without limitation, the sprinkler systems, smoke detectors, speaker
system, lighting system and security system with door monitors, if any; provided
that if the improvements on the future Phase shall use the said relocated
easement the costs of maintenance, repair and operation shall be the
15
responsibility of the Tenant or Owner (if such be on land conveyed in fee simple
by Lessor for development) of such future phases and the Tenant of Phase 1A
shall reimburse said Tenant or Owner for fifty percent (50%) of the cost
thereof, excluding any mark-up or fees.
The stairway and sidewalk easement is a temporary easement which shall
exist until the completion of construction of a relocated easement. The
relocated easement is a permanent easement which shall exist so long as the
Phase 1A Improvements (as from time to time replaced) shall exist.
Easement No. 4 - (East driveway easement)
A non-exclusive temporary driveway and drainage easement for vehicular
and pedestrian ingress and egress, electrical facilities, cashier booths and
drainage improvements or such other temporary improvements as shall be approved
by The Community Redevelopment Agency of the City of Los Angeles, California
between Phase 1A and Olive Street, within that portion of lot 3 of Tract No.
30780, in the City of Los Angeles, County of Los Angeles, State of California,
as per map recorded in book 912 pages 39 to 45 inclusive of maps, in the office
of the County Recorder of said County, said portion lying above an elevation of
340.00 feet and below an elevation of 365.00 feet, said
16
elevations are based on national geodetic vertical datum of 1929 per Ordinance
No. 150,763 of the City of Los Angeles as obtained from City of Los Angeles
Benchmark No. 12-06750, described as a cut spike in south curb of 5th Street,
21.6 feet west of Olive Street, at the west end of a catch basin, elevation =
273.999 feet (1970 adjustment), said portion described as follows:
Beginning at the intersection of a line parallel with and distant
southwesterly 18.70 feet, measured at right angles, from the tangent
portion of the southwesterly line of said lot 3 of Tract No. 30780, and
its northwesterly prolongation with a line parallel with and distant
southeasterly 176.00 feet, measured at right angles, from the
southwesterly prolongation of the northwesterly line of said lot 3 of
Tract No. 30780, said northwesterly line shown thereon as having a
bearing of north 37 degrees 50'12" east (north 37 degrees 50'21" east
for the purpose of this description); thence along last said parallel
line north 37 degrees 50'21" east 161.00 feet to the true point of
beginning of this description; thence continuing along said parallel
line north 37 degrees 50'21" east 1.29 feet; thence at right angles
south 52 degrees 09'39"
17
east 2.54 feet to a line parallel with and distant southeasterly 178.54
feet measured at right angles from said northwesterly line of lot 3,
shown hereinabove as having a bearing of south 37 degrees 51'21" west;
thence along said parallel line north 37 degrees 50'21" east 53.71
feet; thence south 52 degrees 09'39" east 12.00 feet; thence south 37
degrees 50'21" west 11.00 feet; thence south 52 degrees 09'39" east
132.03 feet to the southeasterly line of said lot 3; thence along said
southeasterly line south 37 degrees 48'52" west 44.00 feet to a line
which bears south 52 degrees 09'39" east and which passes through the
true point of beginning of this description; thence north 52 degrees
09'39" west 146.59 feet to the true point of beginning.
This easement shall exist until the start of construction of the
improvements on the property on which such driveway easement is located at which
time it shall be terminated. The developer of such Phase shall replace the
aforementioned temporary driveway easement with a permanent driveway affording
access in generally the same manner as the aforementioned temporary driveway
easement within 3 years after such temporary driveway easement shall have been
terminated. Upon the start of
18
construction of the improvements the Phase 1A Tenant, at its own cost, will
remove those items within the easement in which Phase 1A has an interest. The
Developer of the future Phase, at its own cost, is responsible for the removal
of all improvements within the easement area not removed by the Phase 1A Tenant.
Easement No. 5 - (Northeast walkway easement)
A non-exclusive walkway easement for pedestrian egress, for the purpose
of meeting the requirements of all applicable codes, from Stair No. 5 (as shown
on the plans for Phase 1A approved by The Community Redevelopment Agency of the
City of Los Angeles, California) on the 360' level of the Phase 1A
improvements, within that portion of lot 2 of Tract No. 30780, in the City of
Los Angeles, County of Los Angeles, State of California, as per map recorded in
book 912 pages 39 to 45 inclusive of maps, in the office of the County Recorder
of said County, said portion lying above an elevation of 354.00 feet, said
elevation is based on national geodetic vertical datum of 1929 per Ordinance No.
150,763 of the City of Los Angeles as obtained from City of Los Angeles
Benchmark No. 12-06750, described as a cut spike in south curb of 5th Street,
21.6 feet west of Olive Street, at the west
19
end of a catch basin, elevation = 273.999 feet (1970 adjustment), said portion
described as follows:
Beginning at the intersection of a line parallel with and distant
northeasterly 20.00 feet, measured at right angles, from the tangent
portion of the northeasterly line of said lot 2 of Tract No. 30780,
with a line parallel with and distant southeasterly 178.54 feet,
measured at right angles, from the northeasterly prolongation of the
northwesterly line of lot 3 of said Tract No. 30780, said northwesterly
line shown thereon as having a bearing of north 37 degrees 50'12" east
(north 37 degrees 50'21" east for the purpose of this description);
thence along last said parallel line south 37 degrees 50'21" west
235.50 feet to the true point of beginning of this description; thence
continuing along last said parallel line south 37 degrees 50'21" west
8.00 feet; thence south 52 degrees 09'39" east 144.03 feet to the
southeasterly line of said lot 2; thence along said southeasterly line
north 37 degrees 51'20" east 8.00 feet; thence north 52 degrees 09'39"
west 144.03 feet to the true point of beginning.
The easement may be relocated by the Developer of a future Phase, at
its own cost, upon the construction of
20
improvements on said portion, in such a manner as shall be approved by The
Community Redevelopment Agency of The City of Los Angeles, California and the
appropriate governmental authorities. The Developer of the future Phase shall be
responsible for (i) designing and obtaining all necessary approvals for the
realignment of the exit way during construction of improvements on said
portion, (ii) removal of all knockout panels located within Phase 1A, adjacent
work thereto and installation of additional access doors to complete the
stairwell exit system, (iii) construction of any exit corridor and providing
required services therein, including without limitation, lighting, life safety
and security systems, operation, repair and maintenance. All such work done
within Phase 1A shall match the finishes and standard of quality existing
therein. Upon such relocation the Phase 1A Tenant shall be responsible for the
operation, repair and maintenance of the stairwell improvement within Phase 1A
and the Developer of the future Phase shall be responsible at its cost for the
maintenance of the exit corridor.
Easement No. 6 - (Northeast stairway easement)
A non-exclusive stairway and walkway easement for retaining walls,
drainage and pedestrian egress, for the
21
purpose of meeting the requirements of all applicable codes, from Stair No. 6 on
the 340' level of the Phase 1A Improvements within that portion of lot 2 of
Tract No. 30780, in the City of Los Angeles, County of Los Angeles, State of
California, as per map recorded in book 912 pages 39 to 45 inclusive of maps, in
the office of the County Recorder of said County, and a portion of General
Thaddeus Kosciuszko Way as vacated per City of Los Angeles Resolution To Vacate
No. 82-01653 recorded September 16, 1982 as document no. 82-943159 in official
records of said county and as delineated on street vacation maps on sheets 6 and
7 of 7 in volume 23, page 68, said portions lying above an elevation of 335.00
feet, said elevation is based on national geodetic vertical datum of 1929 per
ordinance no. 150,763 of the City of Los Angeles as obtained from City of Los
Angeles Benchmark No. 12-06750, described as a cut spike in south curb of 5th
Street, 21.6 feet west of Olive Street, at the west end of a catch basin,
elevation = 273.999 feet (1970 adjustment), said portions described as a whole
as follows:
Beginning at the intersection of a line parallel with and distant
northeasterly 20.00 feet, measured at right angles, from the tangent
portion of the northeasterly line of said lot 2 of Tract No. 30780,
with a line parallel with and distant
22
southeasterly 178.54 feet, measured at right angles, from the
northeasterly prolongation of the northwesterly line of lot 3 of said
tract no. 30780, said northwesterly line shown thereon as having a
bearing of north 37 degrees 50'12" east (north 37 degrees 50'21" east
for the purpose of this description); thence along last said parallel
line south 37 degrees 50'21" west 80.00 feet; thence south 52 degrees
09'39" east 15.00 feet; thence north 37 degrees 50'21" east 33.00 feet;
thence south 52 degrees 09'39" east 6.00 feet; thence north 37 degrees
50'21" east 47.03 feet to said line mentioned hereinbefore as being
parallel with and distant northeasterly 20.00 feet from the
northeasterly line of lot 2, thence along said parallel line north
52 degrees 13'52" west 21.00 feet to the point of beginning.
The easement may be relocated by the Developer of a future Phase, at
its own cost, upon the construction of improvements on said portion, in such a
manner as shall be approved by The Community Redevelopment Agency of The City of
Los Angeles, California and the appropriate governmental authorities. The
Developer of the future Phase shall be responsible for (i) designing and
obtaining all necessary approvals for the realignment of the exit
23
system during construction of the future Phase, (ii) removal of all knockout
panels located within Phase 1A, adjacent work thereto and installation of
additional access doors to complete the stairwell exit system, (iii)
construction of the exit corridor within said portion and providing required
services, including without limitation, lighting, life safety and security
systems and operation, repair and maintenance. Upon such relocation the Phase 1A
Tenant shall be responsible for the operation, repair and maintenance of the
stairwell improvement and the Developer of the future Phase shall be responsible
for the operation, repair and maintenance of the exit corridor.
Easement No. 7 (Northeast stairway easement)
A non-exclusive temporary stairway easement to provide pedestrian
ingress and egress from the 385' Plaza Level of the Phase 1A Improvements and an
exit route from the 370' level of the Phase 1A Improvements, within that portion
of lot 2 of Tract No. 30780, in the City of Los Angeles, County of Los Angeles,
State of California, as per map recorded in book 912 pages 39 to 45 inclusive of
maps, in the office of the County Recorder of said County, and a portion of
General Thaddeus Kosciuszko Way as vacated per City of Los Angeles Resolution To
Vacate
24
No. 82-01653 recorded September 16, 1982 as Document No. 82-943159 in official
records of said county and as delineated on street vacation maps on sheets 6 and
7 of 7 in volume 23, page 68, said portions lying above an elevation of 335.00
feet, said elevation is based on national geodetic vertical datum of 1929 per
Ordinance No. 150,763 of the City of Los Angeles as obtained from City of Los
Angeles Benchmark No. 12-06750, described as a cut spike in south curb of 5th
Street, 21.6 feet west of Olive Street, at the west end of a catch basin,
elevation = 273.999 feet (1970 adjustment), said portions described as a whole
as follows:
Beginning at the intersection of a line parallel with and
distant northeasterly 20.00 feet, measured at right angles,
from the tangent portion of the northeasterly line of said lot
2 of Tract No. 30780, with a line parallel with and distant
southeasterly 178.54 feet, measured at right angles, from the
northeasterly prolongation of the northwesterly line of lot 3
of said Tract No. 30780, said northwesterly line shown thereon
as having a bearing of north 37 degrees 50'12" east (north
37 degrees 50'21" east for the purpose of this description);
thence along last said parallel line south 37 degrees 50'21"
west
25
80.00 feet; thence south 52 degrees 09'39" east 15.00 feet;
thence north 37 degrees 50'21" east 33.00 feet; thence south
52 degrees 09'39" east 6.00 feet; thence north 37 degrees
50'2l" east 47.03 feet to said line mentioned hereinbefore as
being parallel with and distant northeasterly 20.00 feet from
the northeasterly line of lot 2, thence along said parallel
line north 52 degrees 13'52" west 21.00 feet to the point of
beginning.
The easement may be terminated or relocated by the Developer
of a future Phase, at its own cost, in such a manner as shall be approved by The
Community Redevelopment Agency of The City of Los Angeles, California and other
appropriate governmental authorities. If it is determined by the appropriate
governmental authorities and The Community Redevelopment Agency of The City of
Los Angeles, California that the easement may be terminated as no longer
necessary, the Developer of the future Phase will be responsible, at its own
cost, for the removal of the stairway. If it is determined by the appropriate
governmental authorities and The Community Redevelopment Agency of The City of
Los Angeles, California that the easement is to be relocated, the Developer of
the future Phase shall be responsible, at its own cost, for the removal of the
stairway system and
26
constructing, maintaining, operating and repairing the relocated exit route.
Easement 8 (footing easement)
An easement for footings for Phase 1A improvements within
those portions of lots 2 and 3 of Tract No. 30780, in the City of Los Angeles,
County of Los Angeles, State of California, as per map recorded in book 912
pages 39 to 45 inclusive of maps, in the office of the County Recorder of said
County, and portions of General Thaddeus Kosciuszko Way and 3rd Place as shown
and dedicated on the map of said Tract No. 30780, said portions vacated per City
of Los Angeles Resolution to Vacate No. 82-01653 recorded September 16, 1982 as
Document No. 82-943159 in Official Records of said County and as delineated on
Street Vacation maps on sheets 3, 6 and 7 of 7 in volume 23, page 68, and
portions of 3rd Street as shown on the map of the Beaudry Tract recorded in book
1 page 402 of Miscellaneous Records of said county said portions lying between
upper and lower elevation limits as hereinafter described, said elevations are
based on national geodetic vertical datum of 1929 per Ordinance No. 150,763 of
the City of Los Angeles as obtained from City of Los Angeles Benchmark No.
12-06750, described as a cut spike in south curb of 5th Street, 21.6 feet west
of
27
Olive Street, at the west end of a catch basin, elevation = 273.999 feet (1970
adjustment), said portions described as follows:
PARCEL A
Beginning at the intersection of a line parallel with and
distant southwesterly 18.70 feet, measured at right angles,
from the tangent portion of northwesterly prolongation of the
southwesterly line of said lot 3 of Tract No. 30780, with the
southwesterly prolongation of the northwesterly line of said
lot 3 of Tract No. 30780, said northwesterly line shown
thereon as having a bearing of north 37 degrees 50'12" east
(north 37 degrees 50'21" east for the purpose of this
description); thence along said parallel line south
52 degrees 09'39" east 176.00 feet to a line parallel with and
distant southeasterly 176.00 feet measured at right angles
from said northwesterly line of lot 3 and its southwesterly
prolongation shown hereinabove as having a bearing of south
37 degrees 50'21" west; thence along last said parallel line
north 37 degrees 50'21" east 162.29 feet; thence at right
angles south 52 degrees 09'39" east 2.54 feet to a line
parallel with and
28
distant southeasterly 178.54 feet measured at right angles
from said northwesterly line of lot 3 shown hereinabove as
having a bearing of south 37 degrees 50"21" west; thence along
last said parallel line north 37 degrees 50'21" east 133.01
feet to a point on the southwesterly line of 3rd Street tunnel
easement, 60 feet wide, as shown on said Tract No. 30780, said
point hereinafter referred to as Point "A"; thence along said
southwesterly line south 52 degrees 18'43" east 5.00 feet;
thence south 37 degrees 50'21" west 138.02 feet; thence north
52 degrees 09'39" west 2.54 feet; thence south 37 degrees
50'21" west 162.29 feet to a line parallel with and distant
southwesterly 23.70 feet, measured at right angles, from said
southwesterly line of lot 3; thence along said parallel line
north 52 degrees 09'39" west 181.00 feet to said southwesterly
prolongation of the northwesterly line of lot 3; thence
northeasterly along said southwesterly prolongation north
37 degrees 50'21" east 5.00 feet to the point of beginning.
29
Said Parcel A lying above an elevation of 290.00 feet and
lying below an elevation of 320.00 feet.
PARCEL B
Beginning at hereinbefore mentioned Point "A"; thence along
the northeasterly prolongation of that certain course
hereinabove described in Parcel A as having a bearing and
distance of "north 37 degrees 50'21" east 133.01 feet" north
37 degrees 50'21" east 60.00 feet to a point on the
northeasterly line of said 3rd Street tunnel easement, said
point hereinafter referred to as Point "B"; thence along said
northeasterly line south 52 degrees 18'43" east 5.00 feet;
thence south 37 degrees 50'21" west 60.00 feet to hereinbefore
mentioned southwesterly line of 3rd Street tunnel easement;
thence along said southwesterly line north 52 degrees 18'43"
west 5.00 feet to the point of beginning.
Said Parcel B lying above an elevation of 290.00 feet and
lying below an elevation of 301.00 feet.
30
PARCEL C
Beginning at hereinbefore mentioned Point "B"; thence along
the northeasterly prolongation of that certain course
hereinabove described in Parcel A as having a bearing and
distance of "north 37 degrees 50'21" east 133.01 feet" north
37 degrees 50'2l" east 341.24 feet to a line parallel to and
distant southwesterly 3.00 feet, measured at right angles,
from the southwesterly line of General Thaddeus Kosciuszko
Way, 60 feet wide, as shown on said Street Vacation maps on
sheets 6 and 7 of 7 in volume 23, page 68; thence along said
parallel line north 52 degrees 13'52" west 169.58 feet to a
point in a curve concave to the south having a radius of 20.00
feet to which a radial line bears north 5 degrees 58'50" east,
said curve being a course in said southwesterly line of
General Thaddeus Kosciuszko Way; thence easterly along said
curve through a central angle of 31 degrees 47'18" an arc
distance of 11.10 feet; thence continuing along said
southwesterly line of General Thaddeus Kosciuszko Way and
tangent to said curve south 52 degrees 13'52" east 161.05
feet; thence
31
south 37 degrees 50'21" west 188.00 feet; thence south
52 degrees 09'39" east 3.00 feet; thence south 37 degrees
50'21" west 156.23 feet to hereinbefore mentioned
northeasterly line of 3rd Street tunnel easement; thence along
said northeasterly line north 52 degrees 18'43" west 5.00
feet to the point of beginning.
Said Parcel C lying above an elevation of 290.00 feet and
lying below an elevation of 320.00 feet.
The Phase 1A Tenant has the right to install, use, maintain,
repair, replace and remove underground footings for the purpose of supporting
the Phase 1A building improvements, and to such temporary access easements as
shall be necessary for such installation, use, maintenance, repair, replacement
and removal of said underground footings.
Easement No. 9 - (North driveway easement)
A non-exclusive driveway easement for vehicular
ingress and egress within that portion of General Thaddeus Kosciuszko Way as
shown and dedicated on the map of Tract No. 30780, in the City of Los Angeles,
County of Los Angeles, State of California, as per map recorded in
32
Book 912 pages 39 to 45 inclusive of maps, in the Office of the County Recorder
of said County, said portion vacated per City of Los Angeles Resolution to
Vacate No. 82-01653 recorded September 16, 1982 as Document No. 82-943159 in
official records of said County and as delineated on street vacation maps on
sheets 6 and 7 of 7 in volume 23, page 68, said portion described as follows:
Beginning at the intersection of the southwesterly line of
said General Thaddeus Kosciuszko Way, 60 feet wide, as
shown on said street vacation maps, with a line parallel with
and distant southeasterly 178.54 feet, measured at right
angles, from the northeasterly prolongation of the
northwesterly line of lot 3 of said Tract No. 30780, said
northwesterly line shown thereon as having a bearing of north
37 degrees 50'12" east (north 37 degrees 50'21" east for the
purpose of this description); thence along said parallel line
south 37 degrees 50'21" west 3.00 feet to a line parallel to
and distant southwesterly 3.00 feet, measured at right angles,
from said southwesterly line of General Thaddeus Kosciuszko
Way; thence along last said parallel line north 52 degrees
13'52" west 46.50 feet; thence leaving
33
said parallel line north 37 degrees 50'21" east 3.00 feet to
said southwesterly line of General Thaddeus Kosciuszko Way;
thence along said southwesterly line south 52 degrees 13'52"
east 46.50 feet to the point of beginning.
Tenant under this Lease has the right and, subject to the
terms of this Lease, shall during the term of this Lease, operate, repair and
maintain the aforementioned easement as long as the easement shall solely be
used for the benefit of the Phase 1A or until such earlier time as the easement
may be adjusted as set forth below.
The aforementioned easement may be adjusted by the Developer
of a future Phase or future Phases, in such a manner and to such location as
shall be approved by The Community Redevelopment Agency of the City of Los
Angeles, California and the appropriate governmental authorities. At such time,
such future Phase Developer shall execute and deliver to the Tenant of the Phase
1A Lease an instrument appropriately acknowledged conveying to such Tenant such
adjusted easement under the same terms and conditions as contained herein except
for location, as an appurtenance to the Phase 1A Lease and thereupon such
non-exclusive driveway easement granted herein shall terminate. Upon such
adjustment the future Phase Developer of the said future Phase, at its own cost,
shall
34
be responsible for constructing all improvements in connection with the adjusted
easement and shall operate, repair and maintain said adjusted easement.
The Developer of any future Phase may temporarily close the
easement for such period as said future Phase Developers may, in their sole
discretion, require for the construction of the improvements and adjusted
easement on such future Phase.
This easement may be transferred by the Tenant of Phase 1A to
any future Phase Developer, Owner or Tenant having an interest in the use of
said easement in connection with said future Phase.
Also excepting from all of the above described land, all oil,
gas, and other mineral substances, together with the right to extract such
substances, provided that the surface opening of a well, hole, shaft or other
means of reaching or moving such substances shall not be located within the
Bunker Hill Urban Renewal Project areas, as recorded in book M-335 page 106,
Official Records, and shall not penetrate any part or portion of said project
area within 500 feet of the surface thereof, as reserved in various Deeds of
Record, among them being the Deed recorded May 20, 1966, in book D-3311 page
794, Official Records.
35
EXHIBIT B
TO PHASE 1A LEASE
DESCRIPTION OF MUSEUM AIRSPACE
The following is a description of how the Museum Airspace will
be measured. This exhibit will be replaced by a legal description approved by
MOCA and Developer pursuant to the Agreement for Construction of Museum Airspace
("Agreement") or if there be no agreement then by the CRA as provided in the
Agreement after final approval of the Museum design and location and when final
dimensions are available.
1. The lowest floor plane of the Museum Airspace is to be measured to the
top surface of the supporting structural element.
2. Any projection below the lowest floor plane, such as an elevator pit,
will be measured to the top surface of the structural slab supporting
the elevator pit and to the exterior surface of the enclosing walls.
3. The demising vertical walls are to be measured to the outside surface
(the cost of building the demising wall is to be included in the Museum
cost).
4. Any vertical structural elements supporting part of the California
Center project are to be excluded from the Museum Airspace.
5. The upper-limit surface of any part of the Museum Airspace, located
under the Grand Avenue Plaza level, but which is not under the part of
the Museum Airspace extending above the Plaza, shall be measured to the
under-side surface of the structural support members.
6. The Museum Airspace projecting above the Grand Avenue Plaza shall be
measured to the outside surface of the walls of a Museum Building and
the horizontal uppermost plane will be determined by the top surface of
the main building element (skylight or parapet) of each Museum
Building.
7. The Museum Airspace located above the plaza level, and between the
Museum (above plaza) Buildings, will be measured as follows:
a. The uppermost horizontal plane to be in line with the
horizontal plane of the lowest building roof element (i.e.:
parapet).
b. On the west side of the Museum Airspace the west vertical
plane will be measured to a plane in line with the most
westerly exterior building surface of any Museum Building
which does not extend beyond the easterly boundary of upper
Grand Avenue (and to a similar plane to the north and south
limits of the Museum Airspace).
c. The easterly limits of the Museum Airspace above Grand Avenue
Plaza shall follow a course commencing at the intersection of
the plane of the northernmost face and the plane of the
easterly face of the most northern Museum Building; thence
south along the plane of the east face of said building to its
intersection with a plane of the south face of said building;
thence east or west along said plane until its intersection
with the plane of the east face of the next southerly Museum
component; thence south along said line to its intersection
with the plane of the north face of the next southerly Museum
component; thence east or west along said line until its
intersection with the plane of the east line of the next
southerly Museum component; thence south along said line until
the plane of the north face of the next southerly Museum
component; thence east or west along said lines. Said easterly
limit shall continue in a like manner until the plane of the
east face of the southernmost Museum Building intersects with
the plane of the southernmost face of said building.
EXHIBIT C
TO PHASE 1A LEASE
APPROVED TITLE EXCEPTIONS
1. TAXES
General and special County and City taxes for the fiscal year
1983-1984, a lien not yet due and payable.
2. RESTRICTIONS
Covenants, conditions and restrictions, omitting restrictions
herein, if any, based on race, color, religion or national origin, as contained
in instrument recorded May 27, 1965 in Book M 1874, Page 320, Official Records.
Said covenants, conditions and restrictions provide that a
violation thereof shall not defeat nor render invalid the lien of any mortgage
or deed of trust made in good faith and for value.
Said covenants, conditions and restrictions, omitting
restrictions herein, if any, based on race, color, religion or national origin,
were purportedly modified by instrument recorded February 26, 1969 in Book
M3127, Page 474, Official Records.
Said matter affects this and other property.
3. EASEMENT
A subsurface easement for public street purposes over that
portion of said land within 3rd Street, 60 feet wide, as shown and dedicated by
the map of Beaudry Tract, as per map recorded in Book 1, Page 402 of
Miscellaneous Records, the Ordinance No. 148682 of the City of Los Angeles
recorded August 24, 1976 as Document No. 3882 and more particularly defined on
Sheet 2 of the map of Tract 30780, as shown on ALTA Survey.
The covenants, conditions and restrictions imposed for the
protection of the 3rd Street tunnel by Tract No. 30780 were Quitclaimed by
authority of the City Council of Los Angeles by deed dated August 18, 1982 which
recorded August 19, 1982 as Instrument No. 82-837833, Official Records, and
re-recorded December 17, 1982 as Instrument No. 82-1266219, Official Records.
Said easement affects Lots 2 and 3 of Parcel 16 (Parcels S and
T).
4. EASEMENT
An easement affecting the portion of said land and for the
purposes stated herein and incidental purposes shown or dedicated by the map of
Subdivision: Tract 30780, per Book 1,
page 402, Misc. Records
In favor of: the City of Los Angeles
For: street
Affects: that portion as
delineated on the map of
said Tract 30780 above
the plane as detailed on
Sheet 4 of said map as
shown on ALTA Survey.
Said easement affects those portions of Lots 2, 3 & 4 shown in
Parcels 14 and 16 (Parcels S, T and U).
5. COVENANT AND AGREEMENT
A covenant and agreement, omitting restrictions herein, if
any, based on race, color, religion or national origin, recorded July 7, 1982 as
Instrument No. 82-684734, Official Records.
Executed by: The Community
Redevelopment Agency of
the City of Los Angeles
In favor of: City of Los Angeles
Which, among other things, provides:
The undersigned hereby certify that (I am) (we are) the owners
of the hereinafter legally described real property located in the City of Los
Angeles, State of California, described as follows:
Lot 2, 3 and 4, Tract No. 30780 as per map recorded in Book
912 Pages 39 to 45 inclusive of Maps in the office of the County Recorder of Los
Angeles County.
Lot 2, Tract No. 28761, as per map recorded in Book 926 Pages
5 to 8 inclusive of Maps, in the office of the County Recorder of Los Angeles
County.
Lot 5, Tract No. 30781, as per map recorded in Book 877 Pages
8 to 12 inclusive of Maps, in the office of the County Recorder of Los Angeles
County.
The undersigned hereby covenant and agree to and with said
City of Los Angeles to submit four copies of a plot plan over the above
described property, to the Fire Department for approval and review, prior to the
issuance of building permits.
This covenant and agreement shall run with the land and shall
be binding upon ourselves, any future owners, encumbrancers, their successors,
heirs or assignees and shall continue in effect, unless otherwise released by
authority of the Fire Department, Department of the City of Los Angeles. It
should be noted that building permits can be issued in phases pursuant to
approval of plans by the Fire Department.
6. SURVEY
Any rights, interests or claims which may exist or arise by
reason of the following facts shown by a survey and inspections of the "street
portions" shown on the ALTA Survey:
A. The fact that 2 concrete covers and a chain link
fence are along the Southwest portion of General Thaddeus Kosciuszko Way.
B. The fact that electrolier, traffic signal box,
concrete cover, sign, concrete cover, catch basin, asphalt over gutter, curb and
gutter, concrete cover, fire hydrant, sign, electrolier, concrete box, all
within 3rd Place between Olive and Grand.
C. The ALTA Survey discloses the following:
1 through 4 affects Lot 2 of Parcel 16.
1) A chain link fence.
2) A chain link fence.
3) Two gate posts.
4) Bridge edge on line.
5 through 8 affects Lot 3 of Parcel 16.
5) Two gate posts.
6) A chain link fence.
7) A sign.
8) A drain.
EXHIBIT D
TO PHASE 1A LEASE
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS NON-DISTURBANCE AND ATTORNMENT AGREEMENT ("Agreement")
dated the __________ day of _________, 1981 between THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF LOS ANGELES, CALIFORNIA, a public body corporate and
politic (which, together with any successor public body or officer hereafter
designated by or pursuant to law is hereinafter called "Ground Lessor")
established pursuant to Chapter 2 of the Community Redevelopment Law of the
State of California, and having its office at Suite 800, 354 South Spring
Street, Los Angeles, California 90013 and ____________________________ , a
_____________________ (hereinafter referred to as "Tenant"),
WITNESSETH:
WHEREAS, Tenant has entered into a lease with BUNKER HILL
ASSOCIATES, (hereinafter referred to as "Landlord") dated the ________ of
_________, 1981 (hereinafter referred to as the "Lease") leasing to Tenant
certain premises (hereinafter the "Premises") comprising the _______ floors in
the Building at ______________________________________, Los Angeles, California,
said premises being a portion of the property ("Site") more particularly
described in Exhibit A attached hereto and incorporated herein, and
WHEREAS, Ground Lessor has entered into a Ground Lease (the
"Ground Lease") of the Site to Lessor, and
WHEREAS, Tenant and Ground Lessor desire to confirm their
understanding with respect to the Lease and the Deed of Trust.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, Ground Lessor and Tenant hereby agree and covenant
as follows:
(1) So long as Tenant is not in default in the performance of any
of the terms, covenants or conditions of the Lease on Tenant's
part to be performed and so long as Tenant has not prepaid the
rent under the Lease except two months in advance of the
current month as provided by the terms of the Lease, then (a)
Ground Lessor will not join Tenant under the Lease in any
action or proceeding for the purpose of terminating Tenant's
interest and estate under the Lease
EXHIBIT D
because of any default under the Ground Lease, and (b) Ground
Lessor will not disturb the use and occupancy of Tenant under
the Lease.
(2) Tenant agrees that:
(a) Ground Lessor shall not be liable for any act or
omission of any prior lessor (including Landlord);
and
(b) Ground Lessor shall not be subject to any offsets or
defenses which Tenant might have against any prior
lessor (including Landlord); and
(c) Ground Lessor shall not be bound by any prepayment of
rent or additional rent which Tenant might have paid
for more than the current month to any prior lessor
(including Landlord); and
(d) Ground Lessor shall be discharged from all
responsibility for any security deposits which were
paid by Tenant to any prior lessor (including
Landlord) and which were not received by Ground
Lessor.
(3) If the Ground Lease shall be terminated for any reason
whatsoever, the Tenant shall attorn to the Ground Lessor or,
if a new ground lease shall be entered into under Section 22.4
of the Ground Lease, to the holder of the leasehold estate
under the said new ground lease and its successors and
assigns. Nothing herein shall cause the tenant to be obligated
or entitled to attorn to and pay its rent under the Lease to
Ground Lessor when any Mortgagee or any purchaser at
foreclosure or trustee's sale or transferee of the leasehold
estate under the Ground Lease or their respective successors
and assigns is entitled to receive, under its loan documents
or by a non-disturbance and attornment agreement or otherwise,
the attornment of Tenant or the payment of rent under the
Lease, as the case may be, and Ground Lessor's rights
hereunder are expressly subordinated to the rights of such
Mortgagee, purchaser, transferee, successor and assign to
receive such attornment and such rental.
(4) This Agreement may not be modified orally or in any other
manner than by an agreement in writing
EXHIBIT D
2
signed by the parties hereto or their respective successors in
interest. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF LOS
ANGELES, CALIFORNIA
Ground Lessor
By: _______________________
Title: ____________________
Tenant
___________________________
By: _______________________
Title: ____________________
The Landlord, Bunker Hill Associates, hereby approves the
provisions of this Agreement.
BUNKER HILL ASSOCIATES
Landlord
By: _______________________
Title: ____________________
EXHIBIT D
3
STATE OF CALIFORNIA )
) SS.
COUNTY OF LOS ANGELES )
On , before me, the
undersigned, a Notary Public in and for said State, personally appeared
______________________, known to me to be the_______________ of THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF LOS ANGELES, CALIFORNIA, the corporation
that executed the within Instrument, known to me to be the person who executed
the within Instrument on behalf of such corporation, and acknowledged to me that
such corporation executed the within instrument pursuant to its bylaws or a
resolution of its board of directors.
WITNESS my hand and official seal.
__________________________
(Signature)
[SEAL]
STATE OF ____________ )
) SS.
COUNTY OF ___________ )
On , before me, the
undersigned, a Notary Public in and for said State, personally
appeared_________________, known to me to be the_____________________ of
______________________, the corporation that executed the within Instrument,
known to me to be the person who executed the within Instrument on behalf of
such corporation, and acknowledged to me that such corporation executed the
within instrument pursuant to its bylaws or a resolution of its board of
directors.
WITNESS my hand and official seal.
__________________________
(Signature)
[SEAL]
EXHIBIT D
4
EXHIBIT E
TO PHASE 1A LEASE
NAMES AND ADDRESSES FOR NOTICES
LESSOR:
THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF LOS ANGELES, CALIFORNIA
354 SOUTH SPRING STREET
SUITE 800
LOS ANGELES, CALIFORNIA 90023
ATTENTION: ADMINISTRATOR
TENANT:
BUNKER HILL ASSOCIATES
333 SOUTH GRAND AVENUE
SUITE 4450
LOS ANGELES, CALIFORNIA 90071
ATTENTION: GENERAL MANAGER
WITH COPIES TO:
CALIFORNIA PLAZA ASSOCIATES
c/o CADILLAC FAIRVIEW/CALIFORNIA, INC.
1800 AVENUE OF THE STARS
SUITE 730
LOS ANGELES, CALIFORNIA 90067
ATTENTION: Martin Seaton
METROPOLITAN STRUCTURES
333 SOUTH GRAND AVENUE
SUITE 4450
LOS ANGELES, CALIFORNIA 90071
ATTENTION: William Hatch
METROPOLITAN LIFE INSURANCE COMPANY
REAL ESTATE FINANCING DEPARTMENT
2855 CAMPUS DRIVE
SAN MATEO, CALIFORNIA 94403
ATTENTION: James Lipscomb, Esq.
METCO PROPERTIES
111 EAST WACKER DRIVE
SUITE 1200
CHICAGO, ILLINOIS 60601
ATTENTION: Harold Jensen
85-1102425
Recording Requested by and Fee $27.00 [ILLEGIBLE]
when recorded mail to:
GIBSON, DUNN & CRUTCHER
Attention: Russell L. Johnson, Esq.
333 South Grand Avenue
Los Angeles, California 90071
[STAMP]
DOCUMENTARY TRANSFER TAX $None
____COMPUTED ON FULL VALUE OF PROPERTY CONVEYED
____OR COMPUTED ON FULL VALUE LESS LIENS AND
ENCUMBRANCES REMAINING AT TIME OF SALE
/s/ Melvin Earle TO-TICOR
-----------------------------------------------
SIGNATURE OF DECLARANT OR AGENT DETERMINING TAX,
FIRM NAME
D.T.T. PAID ON DOC. #83-9919993 ON 8-26-1983
FIRST AMENDMENT OF LEASE OF PHASE 1A
This First Amendment of Lease is dated as of September 13,
1985 by and between THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF LOS
ANGELES, CALIFORNIA, a public body corporate and politic, as Lessor, and BUNKER
HILL ASSOCIATES, a general partnership, as Tenant.
RECITALS
A. The Community Redevelopment Agency of the City of Los
Angeles, California and Bunker Hill Associates executed a Lease of Phase 1A
dated August 26, 1983 and recorded August 26, 1983, as Instrument No. 83-991993
in the Official Records of Los Angeles County, California (the "Lease").
B. The parties hereto desire to amend the Lease to
include in the legal description thereof (i) a strip of land one foot wide, as
described in Exhibit A hereto and (ii) an East Walkway Easement as described in
Exhibit B attached hereto.
[STAMP]
RECORDED IN OFFICIAL RECORDS
RECORDER'S OFFICE
LOS ANGELES COUNTY,
CALIFORNIA
1 MIN. 10 A.M. SEP 23 1985
PAST.
Recording Requested by and
when recorded mail to:
GIBSON, DUNN & CRUTCHER
Attention: Russell L. Johnson, Esq.
333 South Grand Avenue
Los Angeles, California 90071
FIRST AMENDMENT OF LEASE OF PHASE 1A
This First Amendment of Lease is dated as of September 13,
1985 by and between THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF LOS
ANGELES, CALIFORNIA, a public body corporate and politic, as Lessor, and BUNKER
HILL ASSOCIATES, a general partnership, as Tenant.
RECITALS
A. The Community Redevelopment Agency of the City of Los
Angeles, California and Bunker Hill Associates executed a Lease of Phase 1A
dated August 26, 1983 and recorded August 26, 1983, as Instrument No. 83-991993
in the Official Records of Los Angeles County, California (the "Lease").
B. The parties hereto desire to amend the Lease to
include in the legal description thereof (i) a strip of land one foot wide, as
described in Exhibit A hereto and (ii) an East Walkway Easement as described in
Exhibit B attached hereto.
NOW, THEREFORE, the parties hereto hereby agree that the Lease
is amended as follows:
1. Upon the conditions, limitations, covenants and
agreements set forth in the Lease, Lessor hereby leases to Tenant and Tenant
hereby leases from Lessor as an additional part of Phase 1A the land described
in Exhibit A hereto, which land described in Exhibit A hereto shall be inserted
as "Parcel 2A" in the legal description contained in Exhibit A-2 to the Lease,
immediately after the description of Parcel 2 on Page 4 of Exhibit A-2.
2. Upon the conditions, limitations, covenants and
agreements set forth in the Lease, Lessor hereby leases to Tenant and Tenant
hereby leases from Lessor as an additional part of Phase 1A the easement
described in Exhibit B hereto, which easement described as Exhibit B hereto
shall be inserted as "Easement No. 10" of Exhibit A-2 to the Lease, immediately
preceding the last paragraph of Exhibit A-2 at page 35 which states:
"Also excepting from all of the above-described land,
all oil, gas, and other mineral substances, together with the
right to extract such substances, provided that the surface
opening of a well, hole, shaft or other means of reaching or
moving such substances shall not be located within the Bunker
Hill Urban Renewal Project areas, as recorded in book M-335
page 106, Official Records, and shall not penetrate any part
or portion of said project area within 500 feet of the surface
thereof, as reserved in various Deeds of Record, among them
being the Deed recorded May 20, 1966, in book D-3311 page 794,
Official Records."
2
3. In all other respects, including the amount of Rent
payable under the Lease, the Lease is ratified and confirmed. This First
Amendment of Lease is executed and delivered in and shall be governed and
construed under the laws of the State of California.
4. Notwithstanding anything in the Lease or this
Amendment to the contrary, the liability of Tenant under the Lease, as amended,
shall be limited solely to the interest of Tenant in Phase 1A, subject to the
proviso contained in the first sentence of Article 43 of the Lease. Except as
provided in said proviso, no partner of Tenant, nor any such partner's separate
property shall be personally liable for any claim arising out of or related to
the Lease, as amended. A deficit capital account of a partner in Tenant shall
not be deemed to be an interest of Tenant or any asset or property of Tenant.
Further, the liability of Metropolitan Structures to the extent arising out of
or related to the Lease, as amended, is limited solely to the assets and
properties of Metropolitan Structures. No partner of Metropolitan Structures nor
any such partner's separate property, shall be personally liable for any claim
arising out of or related to the Lease. A deficit capital account of a partner
of Metropolitan Structures shall not be deemed an asset or property of
Metropolitan Structures.
5. This First Amendment of Lease shall be
3
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto and is not and shall not be for the
benefit of any third parties other than such successors and assigns. This First
Amendment of Lease may be executed in any number of counterparts, each of which
is an original, but all of which shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
First Amendment of Lease as of the day and year first written above.
"Lessor"
THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF LOS ANGELES, CALIFORNIA
By: /s/ Edward Helfeld
------------------
Approved:
/s/ Herbert M. Weiser
- ---------------------
Herbert M. Weiser,
General Counsel
4
"Tenant"
BUNKER HILL ASSOCIATES,
a California general partnership
By California Plaza Associates,
a California limited partnership,
General Partner
By Cadillac Fairview/California, Inc.
a California corporation,
it sole general partner
By: /s/ Martin Seaton
-------------------------
Pres.
By Metropolitan Structures,
an Illinois general partnership,
General Partner
By Metco Properties,
an Illinois limited partnership,
its general partner
By: /s/ Benjamin A. Levis
---------------------
A General Partner
5
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On September 11, 1985, before me, the undersigned, a Notary
Public in and for said State, personally appeared Edward Helfeld, known to me
to be the Administrator of THE COMMUNITY REDEVELOPMENT AGENCY of the City of Los
Angeles, California, a body corporate and politic, and known to me or proved to
me on the basis of satisfactory evidence to be the person who executed the
within instrument on behalf of The Community Redevelopment Agency of the City of
Los Angeles, California and acknowledged to me that such Agency executed the
within instrument pursuant to its bylaws or a resolution of its Members of the
Board of said Agency.
Witness my hand and official seal.
/s/ Alice Marie Lowe
---------------------
Notary Public
(SEAL)
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On September 10, 1985, before me, the undersigned a Notary
Public in and for said State, personally appeared Martin Seaton, personally
known to me or proved to me on the basis of satisfactory evidence to be the
person who executed the within instrument as the President of CADILLAC
FAIRVIEW/CALIFORNIA, INC., a California corporation, the corporation that
executed the within instrument as general partner of CALIFORNIA PLAZA
ASSOCIATES, a California limited partnership, the partnership that executed the
within instrument as a general partner of BUNKER HILL ASSOCIATES, the
partnership that executed the within instrument, and acknowledged to me that
such corporation executed the same as such general partner of a partnership
which is general partner of such partnership, and that such partnership executed
the same.
WITNESS my hand and official seal.
/s/ Joanne J. Smith
-------------------
Notary Public
(SEAL)
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On 9/9, 1985, before me, the undersigned, a Notary Public in
and for said State, personally appeared Benjamin A. Levis, personally known to
me or proved to me on the basis of satisfactory evidence to be the person who
executed the within instrument as a general partner of METCO PROPERTIES, an
Illinois limited partnership that executed the within instrument as one of the
general partners of METROPOLITAN STRUCTURES, an Illinois general partnership,
the partnership that executed the within instrument as a general partner of
BUNKER HILL ASSOCIATES, a California general partnership, the partnership that
executed the within instrument and acknowledged to me that such partnership
executed the same as such general partner of a partnership which is general
partner of such partnership and that such partnership executed the same.
WITNESS my hand and official seal.
/s/ [ILLEGIBLE]
---------------
Notary Public
(SEAL)
EXHIBIT A
That property in the City of Los Angeles, County of Los
Angeles, State of California, described as follows:
The fee simple absolute of those portions of the real property
lying within Grand Avenue, 84 feet wide, and General Thaddeus Kosciuszko Way, 40
feet wide, as shown on the map of Tract No. 30780, recorded in Book 912, pages
39 to 45, inclusive, of Maps, in the Office of the County Recorder of Los
Angeles County, lying below a horizontal plane at elevation 369.5 feet based on
National Geodetic Vertical Datum of 1929, included within a strip of land,
one-foot wide, lying contiguous to and northerly and northwesterly of the
following described line:
Beginning at the intersection of the northwesterly
prolongation of a line parallel with and distant 2.15 feet southwesterly of the
northeasterly straight line of said Lot 2 with the curved northerly line of said
lot; thence westerly and southwesterly along said curved line to the straight
northwesterly line of said lot; thence southwesterly along said northwesterly
line and its southwesterly prolongation to its intersection with a line parallel
with and distant 21.3 feet northeasterly of the center line of 3rd Place, 80
feet wide, as said street is shown on said map.
Excepting therefrom that portion lying northeasterly of said
first mentioned parallel line.
Exhibit B
Easement No. 10-(East Walkway Easement)
A NON-EXCLUSIVE EASEMENT (1) TO ERECT, MAINTAIN AND USE A
PLAZA AND GUARDRAILS, (2) TO ERECT, MAINTAIN AND USE WALKWAYS FOR PEDESTRIAN
INGRESS AND EGRESS, (3) FOR THE PURPOSE OF MEETING THE REQUIREMENTS OF ALL CODES
APPLICABLE TO THE IMPROVEMENTS LOCATED ON PHASE 1A, (4) FOR FOOTINGS, PILES AND
SUPPORTS FOR CONSTRUCTION PURPOSES, AND (5) FOR ANY PURPOSES RELATED TO THE
ABOVE. SUCH EASEMENT SHALL BE LOCATED ON THOSE PORTIONS OF LOTS 2 AND 3 OF TRACT
NO. 30780, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 912 PAGES 39 TO 45 INCLUSIVE OF MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND PORTIONS OF GENERAL
THADDEUS KOSCIUSZKO WAY AND 3RD PLACE AS SHOWN AND DEDICATED ON THE MAP OF SAID
TRACT NO. 30780, SAID PORTIONS VACATED PER CITY OF LOS ANGELES RESOLUTION TO
VACATE NO. 82-943159 IN OFFICIAL RECORDS OF SAID COUNTY AND AS DELINEATED ON
STREET VACATION MAPS ON SHEETS 3, 6, AND 7 OF 7 IN VOLUME 23, PAGE 68, DESCRIBED
AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF A LINE PARALLEL WITH AND DISTANT SOUTHWESTERLY
18.70 FEET, MEASURED AT RIGHT ANGLES, FROM THE NORTHWESTERLY PROLONGATION OF THE
SOUTHWESTERLY LINE OF SAID LOT 3 OF TRACT NO. 30780, WITH
THE SOUTHWESTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF SAID LOT 3 OF TRACT
NO. 30780, SAID NORTHWESTERLY LINE SHOWN THEREON AS HAVING A BEARING OF NORTH 37
50'12" EAST (NORTH 37 50'21" EAST FOR THE PURPOSE OF THIS DESCRIPTION); THENCE
ALONG SAID PARALLEL LINE SOUTH 52 09'39" EAST 176.00 FEET TO A LINE PARALLEL
WITH AND DISTANT SOUTHEASTERLY 176.00 FEET, MEASURED AT RIGHT ANGLES, FROM SAID
NORTHWESTERLY LINE OF LOT 3 AND ITS SOUTHWESTERLY PROLONGATION, SAID POINT BEING
THE TRUE POINT OF BEGINNING; THENCE ALONG LAST SAID PARALLEL LINE NORTH 37
50'21" EAST 162.29 FEET; THENCE AT RIGHT ANGLES SOUTH 52 09'39" EAST 2.54 FEET
TO A LINE PARALLEL WITH AND DISTANT SOUTHEASTERLY 178.54 FEET, MEASURED AT RIGHT
ANGLES, FROM SAID NORTHWESTERLY LINE OF LOT 3 AND ITS NORTHEASTERLY
PROLONGATION; THENCE ALONG LAST SAID PARALLEL LINE NORTH 37 50'21" EAST 534.25
FEET TO A LINE PARALLEL WITH AND DISTANT SOUTHWESTERLY 3.00 FEET, MEASURED AT
RIGHT ANGLES, FROM THE SOUTHWESTERLY LINE OF GENERAL THADDEUS KOSCIUSZKO WAY, 60
FEET WIDE, AS SHOWN ON SAID STREET VACATION MAPS ON SHEETS 6 AND 7 OF 7 IN
VOLUME 23, PAGE 68; THENCE ALONG SAID PARALLEL LINE SOUTH 52 13'52" EAST 2.00
FEET TO A LINE PARALLEL WITH AND DISTANT SOUTHEASTERLY 180.54 FEET, MEASURED AT
RIGHT ANGLES FROM SAID NORTHWESTERLY LINE OF LOT 3 AND ITS NORTHEASTERLY
PROLONGATION THEREOF; THENCE ALONG LAST SAID PARALLEL LINE SOUTH 37 50'21" WEST
696.54 FEET TO A LINE
PARALLEL WITH AND DISTANT SOUTHWESTERLY 18.70 FEET, MEASURED AT RIGHT ANGLES
FROM THE SOUTHWESTERLY LINE OF SAID LOT 3 AND ITS SOUTHEASTERLY PROLONGATION
THEREOF; THENCE ALONG LAST SAID PARALLEL LINE NORTH 52 09'39" WEST 4.54 FEET TO
THE TRUE POINT OF BEGINNING.
[STAMP]
Recording Requested by and RECORDED IN OFFICIAL RECORDS
when recorded mail to: RECORDER'S OFFICE
LOS ANGELES COUNTY
GIBSON, DUNN & CRUTCHER CALIFORNIA
Attention: Lesley S. Wolf, Esq. MIN.
333 South Grand Avenue 21 PAST 4 P.M. FEB 13 1990
Los Angeles, California 90071
FEE $79.00 L
SECOND AMENDMENT OF LEASE OF PHASE 1A
This Second Amendment of Lease is dated as of December 29, 1989 by and
between THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF LOS ANGELES,
CALIFORNIA, a public body corporate and politic, as Lessor, and GRAND AVENUE
ASSOCIATES, a California joint venture, as Tenant.
RECITALS
A. The Community Redevelopment Agency of the City of Los Angeles,
California and Bunker Hill Associates, a California general partnership ("BHA")
executed a Lease of Phase 1A dated August 26, 1983 and recorded on August 26,
1983, as Instrument No. 83-991993 in the Official Records of Los Angeles County,
California (the "Lease").
B. The Lease was amended by a First Amendment of Lease of Phase
1A dated as of September 13, 1985 by and between Lessor and BHA, recorded on
September 23, 1985, as Instrument No. 85-1102425 in the Official Records of Los
Angeles County, California (the "First Amendment") (the
Lease, as amended by the First Amendment, being referred to as the "Lease").
C. As of September 20, 1985, BHA contributed its interest in the
Lease as Tenant to Grand Avenue Associates, in which entity BHA is a joint
venture partner, pursuant to that certain Grant Deed of Improvements and
Assignment of Leasehold and REA recorded on September 23, 1985 as Instrument
No. 85-1102431 in the Official Records of Los Angeles County, California.
D. The parties hereto desire to further amend the Lease to
include certain agreements reached between the Lessor and Tenant.
NOW, THEREFORE, the parties hereto hereby agree that the Lease is
amended as follows:
1. A new Section 7.2 is hereby added to the Lease as follows:
7.2 Complete Operating Plan. Developer has submitted to Agency
the Complete Operating Plan, attached hereto as Exhibit F which sets
forth a plan and budget for performance projects at California Plaza,
including without limitation, performance projects to take place in the
Central Performance Plaza. Developer has also submitted a revised
budget attached hereto as Exhibit G and incorporated herein by this
reference. The Complete Operating Plan, together with the revised
budget, shall hereinafter be collectively referred to as the Complete
Operating Plan. Developer has agreed to submit for Agency approval a
detailed cultural program, scheduling and budget breakdown information
within nine months of hiring an artistic director for the Central
Performance Plaza,
2
but in no event later than September 30, 1990, which shall supplement
the Complete Operating Plan. The budget amounts set forth in the
Exhibit G shall not be subject to further Agency approval.
The budget set forth in the Complete Operating Plan provides
for contributions from the Phase 1B, 2B, and 3B commercial tenants,
however the REA does not give these commercial tenants a right to vote
upon the implementation of the Complete Operating Plan, nor does it
require their contribution to the funding of the Plan. Accordingly, the
funding set forth in the Plan's budget to be received from the Phase
1B, 2B and 3B commercial tenants shall be allocated among Phases 1A,
2A, 2C and 3A pursuant to the REA.
Tenant shall cause the Operator under the REA to implement the
Complete Operating Plan including, without limitation, the provision of
the in-kind services set forth in the Plan as part of the General Rules
and Regulations under Section 1.5 of the REA, or in such other manner
as may be appropriate. The Complete Operating Plan may not be
significantly amended, modified nor may the Complete Operating Plan
be suspended without the prior written approval of the Lessor.
Tenant shall also cause the Operator, during the first five
years of the operation of the Complete Operating Plan, to meet annually
with the Agency Administrator to discuss programming and scheduling for
the following year. Thereafter and while the Central Performance Plaza
is in operation such meetings shall take place once every five years.
2. Section 23.1 entitled "Mortgages" shall be amended so that the
first sentence is hereby deleted and replaced with the following:
3
Except as permitted in Article 11 hereof, Tenant's interest in this
Lease may be encumbered only by a Mortgage or Mortgages. Prior to the
creation of an Initial Mortgage, Tenant shall have the unlimited right
to encumber its interest by a Mortgage or Mortgages on this Lease and
on the Improvements on the leasehold created by this Lease.
3. Section 23.4 entitled "Refinancing" shall be amended so that
the following words hereby shall be added at the beginning of the second
sentence: "From time to time after the creation of an Initial Mortgage, . . ."
4. Exhibits F and G, attached hereto, shall hereafter be part of
the Lease.
5. In all other respects, including the amount of Rent payable
under the Lease, the Lease is ratified and confirmed. This Second Amendment of
Lease is executed and delivered in and shall be governed and construed under the
laws of the State of California.
6. Notwithstanding anything in the Lease or this Amendment to the
contrary, the liability of Tenant under the Lease, as amended, shall be limited
solely to the interest of Tenant in Phase 1A, subject to the proviso contained
in the first sentence of Article 43 of the Lease. Except as provided in said
proviso, no partner in Tenant, nor any such partner's separate property or
estate shall be personally liable for any claim arising out of or related to the
Lease, as amended. A deficit capital account of a partner in Tenant shall not be
deemed to be a
4
liability of such partner or an asset or property of Tenant. Further, the
liability, if any, of Metropolitan Structures to the extent arising out of or
related to the Lease, as amended, is limited solely to the assets and properties
of Metropolitan Structures. No partner in Metropolitan Structures nor any such
partner's separate property or estate, shall be personally liable for any claim
arising out of or related to the Lease. A deficit capital account of a partner
of Metropolitan Structures shall not be deemed a liability of such partner or an
asset or property of Metropolitan Structures.
7. This Second Amendment of Lease shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and assigns of
the parties hereto and is not and shall not be for the benefit of any third
parties other than such successors and assigns. This Second Amendment of Lease
may be executed in any number of counterparts, each of which is an original, but
all of which shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment of Lease as of the day and year first written above.
5
"Lessor"
THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF LOS ANGELES,
CALIFORNIA
CHIEF DEPUTY ADMINISTRATOR
By: /s/ Judith Broverman
--------------------
Approved as to form:
KANE, BALLMER & BERKMAN
/s/ [ILLEGIBLE]
- -----------------------
"Tenant"
GRAND AVENUE ASSOCIATES,
a California joint venture
By Bunker Hill Associates,
a California general partnership,
Joint Venturer
By California Plaza Associates,
a California limited partnership,
General Partner
By Cadillac Fairview/California,
Inc., a California corporation, its
sole general partner
By: /s/ Antonio A. Bismonte
-----------------------
Its: Vice President
By: /s/ Gary M. Sumers
-----------------------
Its: VP
By Metropolitan Structures,
an Illinois general partnership,
General Partner
By Metco Properties,
an Illinois limited partnership, its
general partner
By: /s/ Alan Levinson
-----------------------
a General Partner
6
By Metropolitan Life Insurance Company,
a New York corporation, Joint
Venturer
By: /s/ [ILLEGIBLE]
-------------------
Its: [ILLEGIBLE]
By:________________________________________
Its:_______________________________________
7
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On this 2nd day of February, 1990, before me, a Notary Public in and for the
said State, personally appeared Judith Broverman personally known to me to be
the Chief Deputy Administrator of the Community Redevelopment Agency of the City
of Los Angeles, California, and that she executed the within instrument on
behalf of the Agency, hereinabove named; and acknowledged to me that such Agency
executed the within instrument pursuant to its by-laws or a resolution of its
Members of the Board of said Agency.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Signature /s/ Alice Marie Lowe [SEAL]
-------------------------
ALICE MARIE LOWE
- -----------------------------------
Notary Public in and for said State
8
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On January 19, 1990, before me, the undersigned, a Notary Public in and
for said State, personally appeared Antonio A. Bismonte and Gary M. Sumers,
personally known to me or proved to me on the basis of satisfactory evidence to
be the person who executed the within instrument as the Vice President and Vice
President, respectively, of CADILLAC FAIRVIEW/CALIFORNIA, INC., a California
corporation, the corporation that executed the within instrument as general
partner of CALIFORNIA PLAZA ASSOCIATES, a California limited partnership, the
partnership that executed the within instrument as a general partner of BUNKER
HILL ASSOCIATES, the partnership that executed the within instrument as a joint
venturer in GRAND AVENUE ASSOCIATES, the joint venture that executed the within
instrument, and acknowledged to me that such corporation executed the same as
such general partner of CALIFORNIA PLAZA ASSOCIATES which executed as such
general partner of BUNKER HILL ASSOCIATES, which executed as such joint venturer
in GRAND AVENUE ASSOCIATES, and that GRAND AVENUE ASSOCIATES executed the same.
Witness my hand and official seal.
/s/ KAREN MARIE TOBIAS
-----------------------
Notary Public
(SEAL)
9
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On January 23, 1990, before me, the undersigned, a Notary Public in and
for said State, personally appeared Alan Levinson, personally known to me or
proved to me on the basis of satisfactory evidence to be the person who executed
the within instrument as a general partner of METCO PROPERTIES, an Illinois
limited partnership that executed the within instrument as one of the general
partners of METROPOLITAN STRUCTURES, an Illinois general partnership, the
partnership that executed the within instrument as a general partner of BUNKER
HILL ASSOCIATES, a California general partnership, the partnership that executed
the within instrument as a joint venturer in GRAND AVENUE ASSOCIATES, the joint
venture that executed the within instrument, and acknowledged to me that METCO
PROPERTIES executed the same as such general partner of METROPOLITAN STRUCTURES
which executed as such general partner of BUNKER HILL ASSOCIATES, which executed
as such joint venturer in GRAND AVENUE ASSOCIATES and that GRAND AVENUE
ASSOCIATES executed the same.
Witness my hand and official seal.
/s/ BEVERLY C. DONOVAN
-----------------------
Notary Public
(SEAL)
10
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On December 29, 1987, before me, the undersigned, a Notary Public in and
for said State, personally appeared [ILLEGIBLE], personally known to me or
proved to me on the basis of satisfactory evidence to be the Assistant Vice
President of METROPOLITAN LIFE INSURANCE COMPANY, the corporation that executed
the within instrument as one of the joint venturers in GRAND AVENUE ASSOCIATES,
the joint venture that executed the within instrument, and acknowledged to me
that such corporation executed the same as such joint venturer in GRAND AVENUE
ASSOCIATES, and that GRAND AVENUE ASSOCIATES executed the same.
Witness my hand and official seal.
/s/ SHARON MULAY
------------------
Notary Public
(SEAL)
11
EXHIBIT F
CALIFORNIA PLAZA
ANGEL'S FLIGHT PRODUCTIONS
1992 - 1996
AARON PALEY
AARON SLAVIN
MARCH 15, 1989
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS
TABLE OF CONTENTS
RECOMMENDATIONS................................................................... 2
1. INTRODUCTION.................................................................. 3
2. COMMUNITY NEED................................................................ 3
3. MISSION STATEMENT............................................................. 4
4. PRODUCING/PROGRAMMING......................................................... 4
A) PHILOSOPHY............................................................... 4
B) PROGRAMMING SCHEDULE..................................................... 4
C) CO-PRODUCTIONS AND CO-COMMISSIONS........................................ 5
D) FESTIVALS................................................................ 5
E) CITY OF LOS ANGELES CULTURAL AFFAIRS DEPARTMENT ......................... 5
F) RESIDENT ORGANIZATIONS................................................... 6
G) OPEN REHEARSAL AND WORKSHOP SPACE........................................ 6
H) COMMUNITY & SCHOOL PROGRAMS.............................................. 6
I) NOON-TIME CONCERTS....................................................... 6
J) COMMUTER CONCERTS........................................................ 6
K) WEEKENDS................................................................. 6
L) RENTALS.................................................................. 7
5. FUNDING STRATEGIES............................................................ 7
A) ENDOWMENT................................................................ 7
6. THE PRODUCING ORGANIZATION.................................................... 7
A) ANGEL'S FLIGHT PRODUCTIONS - A NON-PROFIT
CORPORATION.............................................................. 7
B) BOARD OF DIRECTORS....................................................... 8
C) ARTISTIC ADVISORY BOARD.................................................. 8
D) ANGEL'S FLIGHT PRODUCTIONS STAFF......................................... 8
E) VOLUNTEERS AND INTERNS................................................... 9
7. FACILITIES AND OPERATIONS..................................................... 9
A) CALIFORNIA PLAZA - AN URBAN PARK......................................... 9
B) THE CALIFORNIA PLAZA PERFORMANCE SPACES.................................. 9
c) PERFORMER SUPPORT SPACES................................................. 10
D) PLAZA ACCESSIBILITY - PARKING AND SECURITY............................... 10
E) CROWD FLOW AT THE PLAZA.................................................. 11
8. PLAZA TICKETING AND INFORMATION BOOTH......................................... 11
A) EVENT TICKETING FOR ANGEL'S FLIGHT PRODUCTIONS........................... 12
9. CONCLUSION.................................................................... 12
10. BUDGETS....................................................................... 13
A) CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS
FINANCIAL OVERVIEW....................................................... 13
B) ANGEL'S FLIGHT PRODUCTIONS FIVE-YEAR OPERATING
BUDGET................................................................... 14
C) ANGEL'S FLIGHT PRODUCTIONS SAMPLE THREE-DAY
FESTIVAL BUDGET.......................................................... 17
D) BUDGET NOTES............................................................. 18
11. APPENDICES................................................................... 21
A) SAMPLE ARTISTIC ADVISORY BOARD........................................... 21
B) PERSONS INTERVIEWED FOR THIS REPORT...................................... 21
C) AARON PALEY AND AARON SLAVIN: BIOGRAPHIES................................ 23
D) SAMPLE CALENDAR FOR THE PRODUCING YEAR................................... 24
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 2
RECOMMENDATIONS
- - Creation of a non-profit producing organization to administer, program and
direct all performance projects at California Plaza: "ANGEL'S FLIGHT
PRODUCTIONS."
[PAGE 3]
- - Angel's Flight Productions must directly address the present needs of the
performing arts community.
[PAGE 3]
- - Angel's Flight Productions' programming philosophy should be based around
affordability, accessibility, usefulness and vitality.
[PAGE 4]
- - California Plaza can fill vital needs in the arts community through a
year-round production schedule of quality programming.
[PAGE 4]
- - A major component of the Angel's Flight Productions' programming will be works
co-commissioned through a joint granting process between ANGEL'S FLIGHT PROJECTS
and existing institutions in diverse artistic and ethnic communities.
[PAGE 5]
- - Provision of a major subsidy of new private monies for Angel's Flight
Productions. The backbone of the budget will be formed by the contribution of
private dollars from the developers, Bunker Hill Associates, and from the pool
of tenant deducted contributions.
[PAGE 7]
- - California Plaza will be the clearest example of the private sector's ongoing
commitment to improving the quality of life for the city in which it conducts
its business.
[PAGE 7]
- - Establishment of an endowment to ensure the long-term stability of the
organization.
[PAGE 7]
- - Cultivation of an effective and committed Board of Directors.
[PAGE 8]
- - Creation of an ANGEL'S FLIGHT ADVISORY BOARD comprised of members of the arts
community of downtown and beyond (an extension of the already constituted
Cultural Advisory Board).
[PAGE 8]
- - ANGEL'S FLIGHT THEATER (Marina Pavilion) will be California Plaza's year-round
showcase for professional contemporary and traditional performing arts.
[PAGE 9]
- - Provision of price incentives in the Plaza parking structures for performing
arts patrons.
[PAGE 10]
- - Visitors to the plaza must be met by clear and striking signage to direct them
to the performing areas.
[PAGE 10]
- - Provision of free space for an information and ticket booth in California
Plaza.
[PAGE 11]
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 3
1. INTRODUCTION
California Plaza will soon become a central crossroads for Downtown.
Astride Bunker Hill, the Plaza will draw from theater-goers at the Music Center,
workers from the Government Mall and City Hall, commuters coming off the
Metrorail on Hill Street and off the Long Beach light-rail line. Shoppers will
walk up from Broadway, condominium and apartment dwellers on Bunker Hill and
office workers down the Hill at Sixth and Flower and Library Square can stroll
down Grand Avenue. In the very near future, Grand Avenue will become a "cultural
corridor" without peer in Southern California. With the Music Center and Dance
Gallery at its two extremes, the pedestrian will pass Disney Hall and MOCA
during this four block walk; California Plaza is located at the very heart of
this emerging cultural precinct.
This position as the cultural and business hub for downtown can be
reinforced through the creation of a strong identity for California Plaza
associated with the performing arts, adding to the international renown MOCA has
already engendered. California Plaza can fill vital needs in the arts community
through a year-round production schedule of quality programming. The programming
philosophy will reflect the richness of artistic talent in Los Angeles and the
tremendous diversity of cultures present in our growing metropolis. As a
producer of a well-equipped small to medium-sized theater (250 seats),
California Plaza will fill a crucial niche in the Los Angeles arts environment.
To fulfill these objectives, we recommend the creation of a non-profit
producing organization to administer, program and direct all performance
projects at California Plaza. "ANGEL'S FLIGHT PRODUCTIONS" (AFP) would be funded
primarily through contributions from Bunker Hill Associates (BHA). The provision
of these subsidies must continue for the life of the project. This partnership
of support from the private sector with public performance arts programming is a
new model for Los Angeles that will both inspire and attract visitors, patrons
and artists.
2. COMMUNITY NEED
Surveying the present cultural landscape of Los Angeles, the following
problems are inhibiting the growth and development of the arts:
1. Smaller and mid-sized institutions ($200,000 to $1,000,000
per annum) are struggling for survival. Fierce competition for
funding, increased needs to be met in their respective
communities and rising fixed costs threaten the stability of
new and old institutions.
2. Space for rehearsal and production in the performing arts
is scarce and unaffordable -- and the dearth of smaller
quality houses for dance, music and performance is extremely
notable and grievous.
3. Local performers must produce themselves because of the
shortage of capable producers with secure financial backing.
4. Performing artists are working at a loss: fees and
commissions for their services are usually small honoraria
that do not justly compensate the artists for the work
provided.
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 4
5. There are few venues with consistent and accessible
programming -- a necessity for the building and sustaining of
new and committed audiences.
6. Minority/multi-cultural arts groups are particularly hard
hit by all of these problems because of their vulnerable role
in our society. Marginalized economically, socially and within
the arts community itself, these groups must be a primary
focus of AFP.
Angel's Flight Productions must address these issues directly. As a
wealthy newcomer on the art scene, AFP has a responsibility to use these new
private funds in a manner that enriches the public weal and still enhances the
private needs of the contributing corporations. We have therefore formulated the
following Mission Statement to guide the organization.
3. MISSION STATEMENT
Angel's Flight Productions is dedicated to supporting the performing
artists of Los Angeles through quality programming and producing in its new
facilities atop Bunker Hill. AFP will strive to enhance both the artists and the
other institutions that support them through cooperative producing strategies.
AFP will pay artists a fair wage and is committed to building and sustaining
audiences for their work. AFP will be responsive to the diverse audiences it
serves: the workers downtown, the multi-cultural communities and the performing
artists of Los Angeles. Angel's Flight Productions' coupling of private funding
with public art should serve as an example for private sector initiatives in the
arts.
4. PRODUCING/PROGRAMMING
A) PHILOSOPHY
Angel's Flight Productions must reflect and respond to the needs of the
arts communities of Los Angeles. As the child of the corporate world, distrust
and doubt will be difficult to overcome without clear structural guidelines that
ensure accessibility to the diverse cultures of Los Angeles. The restoration of
the Angel's Flight Railway is an apt metaphor for the accessibility and type of
programming for these spaces. Angel's Flight was a landmark that provided a
useful function, ferrying urbanites up and down a steep hill. The little
funicular accomplished this necessity with a certain charm and excitement that
still lingers a quarter century after its disappearance. And, at a nickel a
ride, it was affordable to all. These traits should be present in Angel's Flight
Productions' programming philosophy: affordability, accessibility, usefulness
and vitality.
B) PROGRAMMING SCHEDULE
California Plaza will serve as the host to a series of diverse programs
and series in the performing arts throughout the entire year. Weekdays, twelve
months a year, Angel's Flight Productions will produce noon concerts, early
evening "commuter concerts" in Angel's Flight Theater and street performers
throughout the plaza. For six months of the year, AFP will produce evening
concerts in Angel's Flight Theater. Weekends, year-round, AFP will produce
daytime family and general concerts free to the public. This regular programming
will be punctuated by large scale three-day festivals involving all of the arts,
productions by
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 5
resident groups, open rehearsals, school programs and rentals by outside groups.
These activities are detailed below and a sample yearly calendar is included as
an Appendix.
C) CO-PRODUCTIONS AND CO-COMMISSIONS
A major component each year of the Angel's Flight Productions'
programming will be several series of works curated and co-commissioned through
a joint granting program called ANGEL'S FLIGHT PROJECTS. Angel's Flight
Productions will work through existing institutions in diverse artistic and
ethnic communities (i.e., Los Angeles Contemporary Exhibitions [LACE], the
Woman's Building, Inner City Cultural Center, Beyond Baroque, Plaza de la Raza,
etc.) in an ongoing partnership to fund the best in the performing arts in Los
Angeles today. This co-commissioning program will begin with three institutions
which will present work in 1992. Each year, the program will shift or grow to
involve new groups and communities. To qualify, organizations would have to be
representative of their community and have a policy of presenting non-affiliated
artists.
Participating institutions will receive a major grant from AFP to
disburse as co-commissions to those artists who are selected according to
guidelines to be prepared by AFP and the host institution. The average grant to
each art group would be $10,000. Each institution would receive 15% of the
commission value for administrative costs with a minimum administrative fee
guaranteed. The only prerequisites of the final grant will be the presentation
of the work by the recipients at California Plaza as a part of the night-time
performance season.
LACE, for example, is currently administering an NEA
Inter-Arts/Rockefeller regranting program that distributes new grants to artists
in the Southwest through a panel process by the artists' peers instead of by a
committee in New York. The Inner City Cultural Center hosts a one-act play
competition with local judges. These programs and their host institutions are
true expressions of the communities they serve and deserve to be rightfully
acknowledged and supported. This program will strengthen the institutions and
ensure that the artists selected are truly emerging from the participating
communities. Organizations contacted were extremely enthusiastic about this
program.
D) FESTIVALS
The entire Plaza is viewed as one large venue for festivals of all
kinds. Organizations such as the Los Angeles Festival may co-produce large scale
events with Angel's Flight Productions. Festivals including crafts, food and
performance (like the Festival of Masks or the Watts Towers' Drum Festival)
would also be appropriate in a plaza-wide setting. Angel's Flight Productions
will produce two to three performing arts festivals during the year with a
multitude of events occurring throughout the plaza over the course of several
days (see Budget Notes). These events, during the day or night, are expected to
bring in thousands of people to the plaza for each Festival.
E) CITY OF LOS ANGELES CULTURAL AFFAIRS DEPARTMENT
The Cultural Affairs Department currently uses an inadequate space
adjacent to the Triforium (Main and Temple Streets) for the production of a
summer concert series and other special events. Angel's Flight Theater would be
a very effective venue for their productions and the Department is very
interested in pursuing this option. Co-production with Angel's Flight
Productions would be an important way for this private facility to assist the
City of Los Angeles.
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 6
F) RESIDENT ORGANIZATIONS
Angel's Flight Productions will be open to hosting an arts organization
as a resident company. The Padua Hills Playwrights' Festival is a good example
of the type of relationship that would benefit AFP and the resident company.
Padua Hills stages an annual summer festival which includes outdoor theatrical
performances, workshops and seminars. Padua includes local performers and
playwrights and invites writers from across the country to participate in this
seminal program. At present, Padua is searching for a permanent home and would
benefit from the venues and location of California Plaza.
G) OPEN REHEARSAL AND WORKSHOP SPACE
The venues of California Plaza will be made available to performing
artists for rehearsal and workshop space during off-hours at no cost. The
shortage of affordable space for rehearsals has reached critical proportions and
this gesture will be a small step toward alleviating the problem. By virtue of
the plaza's design, these rehearsals and workshops will be open to the public.
For the bystander, watching the evolution of a performing event will be
entertaining and educational. For the performers, a non-paying audience during
rehearsals can provide helpful insights and feedback.
H) COMMUNITY & SCHOOL PROGRAMS
Angel's Flight Productions will work closely with the Los Angeles
Unified School District and organizations like Music Center on Tour and the
Performing Tree to create special performances for school field trips at
California Plaza. When appropriate, noon-time performers will also perform for
school groups at 11:00 am in the Angel's Flight Theater. Many of the festivals
and weekend events will also be geared to children of school age, and a
concerted effort will be made to bring the artists into the schools and to
involve the students with the performances.
I) NOON-TIME CONCERTS
During the week, Angel's Flight Productions will program noon-time
concerts, 26 weeks of the year. Three days a week, at noon, the lunchtime
environment for thousands of office workers will be enlivened by classical,
traditional and contemporary music, jazz and dance. These presentations will be
geared to the needs and constraints of the office population whose lunch hour is
often the only time they spend outdoors downtown and is so important to their
psychological well being.
J) COMMUTER CONCERTS
Four weeks out of every trimester (twelve weeks a year), Angel's Flight
Productions will present "commuter concerts" between five and seven pm. Designed
for those commuters who wish to relax after work and thereby avoid the traffic,
these concerts will offer a tempting option to the rush-hour grind.
K) WEEKENDS
Weekends, during the day, Angel's Flight Productions will encourage
families with children to come to California Plaza for a year-round series of
productions designed with them in mind. The need for affordable quality
entertainment for children is critical in Los Angeles. AFP can provide an
alternative to the video and the arcade with traditional theater values of
puppetry, music, storytelling, dance and theater created to spark children's
spirits.
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 7
L) RENTALS
The performing venues and the entire plaza itself will be desirable for
other producers to mount events, for private parties, benefits and special
occasions. When the schedule of Angel's Flight Productions permits, the spaces
will be rented out to select groups. This will enhance the plaza's image and
will serve as a source of earned revenue for the producer.
5. FUNDING STRATEGIES
The fundamental assumption underlying Angel's Flight Productions is the
provision of a major subsidy from new private monies for the organization. The
backbone of the budget will be formed by the contribution of private dollars
through the developers, Bunker Hill Associates. The provision of these subsidies
are guaranteed by the Reciprocal Easement Agreement for California Plaza between
Bunker Hill Associates and the CRA, and must be able to withstand any changes in
ownership or other unforeseen event.
Angel's Flight Productions cannot siphon support from the existing arts
funding sources which are unable to adequately support already existing
organizations. Therefore the budgets attached reflect the assumption that AFP
will only raise new private monies from corporate tenants of California Plaza
and from government sources. For some special programs, underwriting from
tenants will be solicited as a means of additional support (e.g. Manufacturers
Hanover Presents Jazz on the Plaza). Earned income will derive from modestly
priced ticket sales, program advertising, and special event rentals of the plaza
and will represent only a small proportion of total revenues.
California Plaza will be the clearest example of the private sector's
ongoing commitment to improving the quality of life for the city in which it
conducts its business. This commitment will become an example for other
corporations in Los Angeles and a source of pride for the management of
California Plaza and its corporate tenants.
A) ENDOWMENT
During the first decade of operation, an endowment should be
established for Angel's Flight Productions to ensure the long-term stability of
the organization. Interest income from the endowment will augment the private
subsidies, grants and earned income, increasing each year as the endowment
grows. An endowment will also provide a measure of security and freedom to AFP
as it will not be totally dependent upon Bunker Hill Associates and the tenants
of California Plaza for its support each year. It is assumed that the fund would
provide the major portion of operating funds during the first decade of the next
century.
6. THE PRODUCING ORGANIZATION
A) ANGEL'S FLIGHT PRODUCTIONS - A NON-PROFIT CORPORATION
Angel's Flight Productions will be incorporated under the tax-exempt
regulations of the Internal Revenue Service (section 501 [c] 3) and the State of
California. Under the leadership of its Executive Director, AFP will program all
spaces, commission new works, develop co-productions with other arts
organizations downtown and beyond, work with outside producers and orchestrate
year-round quality programming for the Plaza. AFP has the responsibility to
present work that responds to and serves the many groups and communities that
will use California Plaza: from tourists to office workers, from Watts to
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 8
East Los Angeles, from Latin Broadway to Chinese North Broadway, from the Valley
to West Los Angeles.
B) BOARD OF DIRECTORS
The cultivation of an effective and committed Board of Directors will
be one of the most important ongoing administrative responsibilities of the
Executive Director and staff of Angel's Flight Productions. Board meetings will
be held at least quarterly, and members will help shape the business policies of
the company and will take a leadership role in fundraising activities. Board
members should represent the communities of California Plaza: the corporate
tenants, the multi-cultural communities, and the performing artists and patrons.
The Board will create committees to be composed of both Board and
non-Board members to recommend policy in the areas of programming, finance,
development, etc. By including non-Board representatives from the community, the
Board will benefit from a broader cross-section of interests and ideas. Artistic
policy decisions are not within the province of a non-profit Board: all
programming decisions will be made by the Angel's Flight producers in
consultation with the Advisory Board and the programming committees.
C) ARTISTIC ADVISORY BOARD
In addition to a working and supportive Board of Directors, Angel's
Flight Productions will have an Advisory Board comprised of members of the arts
community of downtown and beyond (an extension of the already constituted
Artistic Advisory Board). These representatives of other organizations will add
immeasurably to the guidance of AFP. (See sample Artistic Advisory Board List in
Appendix.)
One of the principal committees of the Artistic Advisory Board will be
the Programming Committee. Comprised of representatives from the producing
community, the Committee would reinforce collaboration and cooperation between
arts groups with similar missions and philosophies. This will enable the Angel's
Flight producing team to alleviate the competitive fears of existing
organizations and establish close and equitable working relationships with them.
Programming meetings will be held at least quarterly.
D) ANGEL'S FLIGHT PRODUCTIONS STAFF
Angel's Flight Productions staff positions are divided into
administrative and production categories and will be phased in over a three year
period beginning in 1992:
1992 INAUGURAL YEAR STAFF REQUIREMENTS
ADMINISTRATIVE PRODUCTION
-------------- ----------
Artistic/Executive Director (100%) Stage Manager (100%)
Producer (100%) Technical Director (100%)
Associate Producer (50%) Technical Assistant (100%)
Administrative Assistant (100%) Technical Assistant (25%)
Development Associate (50%) House Manager (50%)
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 9
E) VOLUNTEERS AND INTERNS
Volunteers are always the lifeblood of producing organizations,
regardless of size. At curtain time volunteers perform a vast range of vital
services -- they serve as ushers, collate and distribute programs, help
handicapped patrons to special seating areas, answer questions, give directions
and sell concessions. These "front-of-house" volunteers are the public face of a
performance venue and the first impression they create is of paramount
importance. Thus it is essential that a talented, cheerful, dedicated corps of
volunteers be carefully developed and well-trained. At theaters across the
nation it has been consistently shown that one of the most successful, able
and eager volunteer resources is the senior community. Angel's Flight will be
fortunate to have a great potential volunteer force immediately adjacent: the
Angelus Plaza senior residential complex. It will be necessary to begin
volunteer development at least six months prior to the Plaza's opening.
Interns are another invaluable resource for non-profit organizations.
Besides the obvious benefits of additional free labor in support positions,
internships create important outreach links to the community and foster much
goodwill. Care should be taken to ensure that interns are retained in accordance
with the equitable concepts of affirmative action. Most universities and some
high schools have internship programs in both administrative and technical
production fields, and the Angel's Flight Production staff must make strong
efforts to develop and cultivate these associations.
7. FACILITIES AND OPERATIONS
A) CALIFORNIA PLAZA - AN URBAN PARK
The performing arts venues and programs are an integral part of the
"urban park" context that the architect has envisioned for California Plaza. The
intent is to create an active space, used by a variety of groups for various
reasons at all times of day to create a nexus of activities. The plaza is both a
retreat from the city and an important addition to the urban landscape. Meeting
places such as these are important landmarks in our perception of urban areas
and help create a sense of human scale for pedestrians in an otherwise
automobile-dominated landscape. The spaces detailed below fit within this
framework.
B) THE CALIFORNIA PLAZA PERFORMANCE SPACES
The "ANGEL'S FLIGHT THEATER" (Marina Pavilion) will be California
Plaza's year-round showcase for professional contemporary and traditional
performing arts. It is a flexible and intimate 250 seat outdoor amphitheater
featuring state-of-the-art theater lighting and sound equipment (based upon the
submittals offered by the theater-design and electro-acoustic consultants)
including permanent and portable dimming units and a computerized control
console, an architectural trellis stage-cover with built in circuitry, lighting
position grids and acoustically designed reflective structures, portable
(acoustic) backdrop and side panels for a more enclosed stage area, and a
portable sprung-wood base dance floor with marley cover. According to these
specifications, the Angel's Flight Theater environment will be ideal for all
music concerts, most dance concerts and for many types of contemporary theater
and performance art programs.
The "FOUNTAIN STAGE" will be an integral part of the sophisticated
matrix of park and water features of California Plaza. Most times during the
year it will be concealed as a multi-tiered falling water fountain, but it is
quickly drainable in several configurations (see Crowd Flow below) to provide a
staging area of nearly 1000 square feet, with additional area for
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 10
audience seating for over two hundred persons. From the surrounding terraces on
the upper level of the Plaza and from the 370' level, more than one thousand
persons can be in close proximity to events on stage. An ample supply of raw
power, permanent lighting circuitry and dimming, a custom-designed sound system
and special vertical lighting truss columns complete the equipment package for
this area. As set-up for performances will be costly due to extra labor and the
rental of an additional lighting instrument package, it is envisioned that the
Fountain Stage will be used only two or three times a year and that most of
these programs will be daytime events. Plaza-wide performing arts festivals,
popular fairs (e.g. the Lotus Blossom Festival) and larger scale theater and
performance works commissioned specifically for the Fountain Stage site are
forseen.
The "CABARET STAGE" is a very intimate space that will directly front
the major restaurant site on the Plaza lower level and is designed for audiences
of thirty to forty persons. It will be covered by a pavilion set in the water
and will include basic light and sound equipment to accommodate a variety of
simple performances (from torch singers to literary readings). The presentation
of regular programs on this stage will depend on the restaurant tenant for whose
patrons such cabaret events would take place. During Plaza festivals, the
Cabaret Stage will certainly prove to be a valuable performance area.
The "SPIRAL COURT," currently the only area in California Plaza where
performances have occurred, is an outdoor architectural space: spiraled polished
stone steps flowing down to a small round "performance area" set underneath a
delicate fifteen foot waterfall fountain. It has no permanent theatrical
fixtures but has served very well as a venue for small concerts and other
attractions for the noontime lunch crowd. When the other Plaza performance
spaces are operating, the Spiral Court will be a perfect place to present small
all-acoustic performances such as folksingers, jugglers or mimes -- the perfect
venue for "street performers." Performers in the Spiral Court will be an
attractive magnet -- a "living marquee" for the Plaza -- as its location on
Grand Avenue will make it the first performance space visible from the street.
C) PERFORMER SUPPORT SPACES
The Plaza will house three separate performer support spaces totalling
6,000 square feet. One thousand square-feet of warmup and ready areas with
changing rooms, showers, etc. will be located directly underneath the water
stage with an additional one thousand square-feet beneath the Angel's Flight
Theater seats. The main 4,000 square-foot support complex, which includes
individual and group dressing rooms, showers, "green room," crew room and
storage areas, will be located underneath the office tower in the Plaza.
D) PLAZA ACCESSIBILITY - PARKING AND SECURITY
For the Plaza performance spaces to be completely embraced by the
public two things are absolutely essential: the arts programming must be as
exciting, dynamic and desirable as the Urban Park setting itself and the Plaza
must be perceived as accessible and safe for all Angelenos regardless of
economic status. It is imperative that Angel's Flight Productions and California
Plaza create a careful promotional campaign to alter certain widely held beliefs
about the inaccessibility of downtown and Bunker Hill, and their desolation and
danger after dark. It is also imperative that California Plaza management
provide price incentives in the Plaza parking structures for performing arts
patrons, at a minimum comparable to those offered to MOCA patrons, and let it
become known that these incentives exist. Additionally, there must be visible
security personnel at the Plaza during all hours of peak use and an
around-the-clock security presence to protect on-site equipment.
E) CROWD FLOW AT THE PLAZA
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 11
The Plaza is designed to function as an urban park with onlookers,
shoppers, tourists and workers milling freely at every level. The Plaza is not
only an endpoint, it is a nexus for the office towers of California Plaza, for
Bunker Hill, and for the adjacent neighborhoods. These factors have been
designed into the crowd-flow patterns by the architect and greatly facilitate
planning for the performance spaces. The Angel's Flight Theater design creates
definite and secure boundaries for seating areas and promotes audience control.
The main entrance to the theater for the public will be from the 385' level,
with two exit points at each of the 370' and 385' levels.
The Fountain Stage can be used in three configurations:
1. 378.5' level drained alone
2. 385.5' level drained alone
3. Both levels drained
In the first case, exits and entrances are provided at either end of
the elliptical area. In the second case, access is more circuitous, over the
landscaped hills, and may not be sufficient in large and crowded situations.
Finally, draining of both levels provides four points of access to the two
areas.
Visitors to the plaza must be met by clear and striking signage to
direct them to the performing areas. This signage must begin at the street, the
parking garage and even be visible to drivers along Olive Street (perhaps a
marquee on the tunnel entrances?). Kiosks announcing the day's events and coming
programs are essential to a producer with an active year-round schedule.
8. PLAZA TICKETING AND INFORMATION BOOTH
Over the past decade, numerous organizations and committees have
studied and debated the creation of a central ticket booth for the performing
arts in Los Angeles. Major issues included: one or several outlets? Pershing
Square or other spots downtown versus locations on the Westside and in the
Valley? Half-price tickets like TKTS in New York or full-price seats for the
evening? How would the smaller Los Angeles theaters participate? Who would
operate such an endeavor? Currently, the newly created theater service
organization, Theater/LA, is considering such a ticket booth as a part of its
long range agenda but minimal resources prevent realization of this project.
The provision of free space for an information and ticket booth in
California Plaza will advance the process quickly by eliminating the first major
hurdle other groups have faced. Although discussions will continue as to whether
other sites around town should be included. California Plaza is the ideal
location for the first outlet: centrally located, easily accessible, and within
walking distance of so many important performing arts venues and hotels. The
dispersed nature of Los Angeles will reduce its impact in comparison with ticket
booths of centralized cities like New York or San Francisco. Nonetheless, its
creation will be a very important aid to theater-goers, tourists and local arts
organizations.
The logistics of such an operation and the issue of who shall act as
its operator must be resolved in the coming years prior to the completion of
California Plaza. The Executive Director and Advisory Board should address this
issue as soon as possible upon their respective appointments.
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 12
A) EVENT TICKETING FOR ANGEL'S FLIGHT PRODUCTIONS
A basic assumption in our report is that there will be a computerized
ticketing/reservation system in place at the Plaza to be operated by a still
unnamed group. [THE ISSUES OF BOX OFFICE STAFF AND EQUIPMENT COSTS, ETC. HAVE
NOT BEEN ADDRESSED IN THIS REPORT OR THE ATTACHED BUDGET PAGES.] Events at
Angel's Flight Theater should be ticketed according to the following formula:
Ticketed Events: All paid events
All evening events (8:00 pm curtain)
All weekend daytime events
Unticketed Events: All noontime events
All commuter events (5:00 pm curtain)
Ticketing free events will provide controlled access to the permanent
seats in cases of larger than capacity crowds. Festival events should be
ticketed according to the same formula, with the addition of tickets for patrons
in the portable seats on the Fountain Stage. Tickets will not be required for
Spiral Court and Cabaret Stage events. Rentals to outside producers will be
ticketed through the Angel's Flight system and a basic box office set-up charge
plus a per ticket printing charge will be added to the show settlement fees.
9. CONCLUSION
We are recommending an ambitious and extensive producing organization
that would create a substantial impact on the arts in Los Angeles by virtue of
its scale, visibility and intent. A new Los Angeles performing arts producer,
dedicated primarily to local artists, with a substantial budget of new
private-sector money located in a striking downtown setting, will irrevocably
alter Bunker Hill and the arts in Los Angeles.
The budget recommendations we have made reflect the creation of an
active year-round performance space functioning at a professional level in
accordance with the quality of its setting. As in all budgeting scenarios, this
first attempt to quantify the use of a space eight years into the future is
fraught with many assumptions. Nevertheless, we are confident that this is a
fair representation of the needs of a producing organization that would measure
up to the standards of California Plaza's deserved reputation as a cultural
landmark in Southern California.
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS FINANCIAL OVERVIEW
FIVE YEAR PROJECT TOTAL $ 11,500,500
INAUGURAL YEAR TOTAL OPERATING BUDGET $1,760,000
(Less $1.1 Million Initial Theater Equipment Purchase Costs)
Expenses
Artistic Expense $400,000 23%
Production Cost 310,000 18%
Program Support 260,000 15%
Administrative/General 640,000 36%
Capital Purchases 150,000 8%
Income
Government Grants $ 30,000 2%
Corporate/Individual Support 170,000 10%
Ticket Sales & Other Earned Income 130,000 7%
California Plaza 910,000 51%
In Kind Contributions 530,000 30%
YEAR OF OPERATION: 1992 1993 1994 1995 1996
------------------ ---- ---- ---- ---- ----
CAL PLAZA INC. DOLLAR TOTALS $2,007,900 $ 857,704 $1,005,198 $1,093,502 $1,200,598
(1992 includes equipment purchase costs)
ALLOCABLE SHARE PER
RECIPROCAL EASEMENT AGREEMENT
GROSS SQUARE FEET(GSF, in millions)* 1.73 2.32 2.95 3.36 3.66
*As Per Schedule Shown Below
$ PER GSF OCCUPIED SPACE 1.16 0.37 0.34 0.33 0.33
CAL PLAZA
SQUARE FOOTAGES BY PHASE
1A Office - 940,000; Retail - 26,000 100% 100% 100% 100% 100%
2A Office - 1,270,000; Retail - 45,000 30% 75% 100% 100% 100%
2C Hotel - 360,000 100% 100% 100% 100% 100%
3A Office/Retail - 1,000,000 (estimated) -- -- 30% 70% 100%
1B Retail -5,500 100% 100% 100% 100% 100%
2B/3B Retail - 10,000 -- -- 50% 100% 100%
PAGE 13
ANGEL'S FLIGHT PRODUCTIONS FIVE-YEAR OPERATING BUDGET
INAUGURAL
YEAR FIVE
---- YEAR
1992 1993 1994 1995 1996 TOTALS
---- ---- ---- ---- ---- ------
INCOME
I. EARNED INCOME
1. CONCESSIONS 12,000 13,200 14,500 16,000 17,600 73,300
2. PROGRAM ADVERTISING 25,000 30,000 35,000 40,000 45,000 175,000
3. RENTAL INCOME 30,000 40,000 50,000 60,000 70,000 250,000
4. TICKET SALES 66,000 80,900 99,000 118,800 138,600 503,300
TOTAL EARNED INCOME 133,000 164,100 198,500 234,800 271,200 1,001,600
II. UNEARNED INCOME
PRIVATE:
- - 1. CALIFORNIA PLAZA 757,900 837,704 975,198 1,053,502 1,150,598 4,774,900
- - 2. EQUIPMENT PURCHASES 1,100,000 20,000 30,000 40,000 50,000 1,240,000
- - 3. SUPPORT SPACE IMPROVEMENT 150,000 0 0 0 0 150,000
4. INDIVIDUAL CONTRIBUTIONS 20,000 25,000 30,000 35,000 40,000 150,000
5. CO-PRODUCTION FEES 20,000 30,000 40,000 50,000 60,000 200,000
6. CORPORATE UNDERWRITING 25,000 30,000 35,000 40,000 45,000 175,000
7. TENANT OPTIONAL GRANTS 100,000 125,000 150,000 175,000 200,000 750,000
TOTAL PRIV. UNEARNED INC. 2,172,900 1,067,704 1,260,198 1,393,502 1,545,598 7,439,900
GOVERNMENT:
1. LA CULTURAL AFFAIRS 15,000 15,000 20,000 20,000 25,000 95,000
2. LOS ANGELES COUNTY 2,500 2,500 2,500 2,500 2,500 12,500
3. CALIFORNIA ARTS COUNCIL 15,000 20,000 25,000 30,000 35,000 125,000
4. NATIONAL ENDOWMENT 0 20,000 25,000 30,000 35,000 110,000
TOTAL GOVT UNEARNED 32,500 57,500 72,500 82,500 97,500 342,500
TOTAL UNEARNED INCOME 2,205,400 1,125,204 1,332,698 1,476,002 1,643,098 7,782,400
III. IN-KIND CONTRIBUTIONS 525,200 498,416 530,012 563,908 598,972 2,716,510
TOTAL INCOME 2,863,600 1,787,720 2,061,210 2,274,710 2,513,270 11,500,510
--------- --------- --------- --------- --------- -----------
- - = CAL PLAZA INC. DOLLAR TOTAL 2,007,900 857,704 1,005,198 1,093,502 1,200,598 6,164,900
--------- --------- --------- --------- --------- -----------
FIVE YEAR PROJECT TOTAL $11,500,500
-----------
PAGE 14
ANGEL'S FLIGHT PRODUCTIONS FIVE-YEAR OPERATING BUDGET
INAUGURAL FIVE
YEAR YEAR
1992 1993 1994 1995 1996 TOTALS
---- ---- ---- ---- ---- ------
EXPENSES
I. ARTISTIC EXPENSE
1. ARTIST FEES 320,000 420,000 520,000 600,000 670,000 2,530,000
2. CO-COMMISSION GRANTS 80,000 80,000 100,000 100,000 130,000 490,000
TOTAL ARTISTIC EXPENSE 400,000 500,000 620,000 700,000 800,000 3,020,000
II. PRODUCTION COSTS
1. FESTIVAL PRODUCTION COSTS 24,000 27,000 39,000 43,000 47,000 180,000
2. DIRECT PRODUCTION EXPENSES 12,000 13,200 14,500 16,000 17,600 73,300
3. STAGE MANAGER 28,000 29,400 30,900 32,400 34,000 154,700
4. TECHNICAL DIRECTOR 30,000 31,500 33,100 34,800 36,500 165,900
5. TECHNICAL ASSISTANT 20,000 21,000 22,100 23,200 24,400 110,700
6. PART-TIME TECHNICAL ASST. 4,900 6,800 9,800 14,600 19,500 55,600
7. HOUSE MANAGER 13,000 16,300 19,000 21,800 27,100 97,200
8. LIGHTING DESIGNERS 6,500 9,100 13,000 19,500 26,000 74,100
9. SECURITY(-) 137,200 154,616 158,312 162,008 164,472 776,610
10. THEATER UTILITIES(-) 18,000 19,800 21,800 24,000 26,400 110,000
11. FRINGE BENEFITS 13,300 13,900 14,600 15,400 16,100 73,300
TOTAL PRODUCTION COSTS 306,900 342,620 376,110 406,710 439,070 1,871,410
III. PROGRAM SUPPORT
1. PUBLICIST 50,000 55,000 60,500 66,600 73,300 305,400
2. PRINTING 50,000 60,000 70,000 80,000 85,000 345,000
3. POSTAGE 20,000 25,000 30,000 35,000 40,000 150,000
4. PUBLICITY COSTS 8,000 10,000 12,000 14,000 16,000 60,000
5. DOCUMENTATION 15,000 17,500 20,000 22,500 25,000 100,000
6. ADVERTISING 100,000 110,000 121,000 133,100 146,400 610,500
7. GRAPHIC DESIGNERS 20,000 22,000 24,200 26,600 29,300 122,100
TOTAL PROGRAM SUPPORT 263,000 299,500 337,700 377,800 415,000 1,693,000
PAGE 15
ANGEL'S FLIGHT PRODUCTIONS FIVE-YEAR OPERATING BUDGET
INAUGURAL FIVE
YEAR YEAR
1992 1993 1994 1995 1996 TOTALS
---- ---- ---- ---- ---- ------
EXPENSES
IV. ADMINISTRATIVE COSTS
1. ARTISTIC/EXECUTIVE DIRECTOR 70,000 73,500 77,200 81,100 85,200 387,000
2. EXECUTIVE PRODUCER 55,000 57,800 60,700 63,700 66,900 304,100
3. ASSOCIATE PRODUCER 19,300 29,000 38,600 40,500 42,500 169,900
4. ADMINISTRATIVE ASSISTANT 22,000 24,200 25,400 26,700 28,000 126,300
5. LEGAL/ACCOUNTING 15,000 17,000 19,000 21,000 23,000 95,000
6. DEVELOPMENT CONSULTANT 25,000 26,300 39,400 44,600 52,500 187,800
7. OFFICE RENTAL(-) 370,000 324,000 349,900 377,900 408,100 1,829,900
8. OFFICE EQUIPMENT PURCHASE 2,000 2,200 2,400 2,600 2,900 12,100
9. OFFICE SUPPLIES 1,200 1,300 1,400 1,500 1,700 7,100
10. TELEPHONE 4,200 4,600 5,100 5,600 6,200 25,700
11. INSURANCE 10,000 11,000 12,100 13,300 14,600 61,000
12. FACILITIES MAINTENANCE(-) * * * * * *
13. TRAVEL 2,000 3,000 4,000 5,000 6,000 20,000
14. PARKING 18,000 19,800 21,800 24,000 26,400 110,000
15. MISCELLANEOUS 5,000 5,500 6,100 6,700 7,400 30,700
16. FRINGE BENEFITS 25,000 26,400 34,300 36,000 37,800 159,500
TOTAL ADMINISTRATIVE COSTS 643,700 625,600 697,400 750,200 809,200 3,526,100
V. CAPITAL PURCHASES
1. THEATER EQUIPMENT PURCHASE 1,100,000 20,000 30,000 40,000 50,000 1,240,000
2. SUPPORT SPACE IMPROVEMENT 150,000 0 0 0 0 150,000
TOTAL CAPITAL PURCHASES 1,250,000 20,000 30,000 40,000 50,000 1,390,000
TOTAL EXPENSES 2,863,600 1,787,720 2,061,210 2,274,710 2,513,270 11,500,510
INCOME OVER EXPENSES 0 0 0 0 0 0
PAGE 16
ANGEL'S FLIGHT PRODUCTIONS THREE-DAY FESTIVAL SAMPLE BUDGET
FEES
Producer 1,000
Associate Producer 1,000
Artists' Fees 32,000
TOTAL FEES $ 34,000
PRODUCTION LABOR COSTS (NON-UNION)
Technical Director 1 @ $1000/week 1,000
Stage Manager 1 @ $750/week 750
Lighting Designer l @ $1000/week 1,000
Lighting Operator 1 @ $750/week 750
Follow Spot Operator (optional) 1 @ $100/day 400
Sound Operator 2 @ $750/week 1,500
Stage Hands 3 @ $500/week 1,500
Water Stage preparation labor 4 men @ 200/day X 2 1,600
PRODUCTION LABOR TOTAL 8,500
DIRECT PRODUCTION EXPENSES
Sets/Props 2,000
Water Stage lighting package rental (Weekly) 2,000
Portable chair rental 150 @ $1.50 X 2 (weekly rate) 500
Publicity/Promotion 12,106
Graphics/Printing 2,500
Ticket set-up/printing 1,150
Photo/Documentation 1,000
Production Overhead & Misc. 800
DIRECT PRODUCTION EXPENSES TOTAL 22,056
PRODUCTION LABOR & EXPENSES TOTAL $ 30,556
=========
GRAND TOTAL $ 64,556
=========
PAGE 17
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 18
D) BUDGET NOTES
OPERATING BUDGET NOTES (INCOME):
I. EARNED INCOME
4. TICKET SALES
Ticket Sales are based upon an average price of $12.50, 60%
capacity (based on a 220 seat house), and are calculated by
year according to the following night-time performance and
night-time festival performance schedules ( with 2 night-time
performances per festival), at 100% operations in 1996:
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
Night Perfs 12 weeks 15 weeks 18 weeks 22 weeks 26 weeks
3 per week 3 per week 3 per week 3 per week 3 per week
Festivals 2 2 3 3 3
II. UNEARNED INCOME
1. CALIFORNIA PLAZA
"California Plaza" represents the combined contributions of
Bunker Hill Associates and tenant deductible contributions.
5. CORPORATE UNDERWRITING
This refers to solicitation of funds from corporations
(whether or not resident to California Plaza) for
collaborations with Angel's Flight Productions and at least
one outside non-profit arts organization, e.g. MOCA, LACE,
LATC, etc.
6. TENANT OPTIONAL GRANTS
Resident tenants of California Plaza will be approached for
additional funding to sponsor specific projects, e.g.
"Manufacturers Hanover Presents Sunday Concerts in the
Garden."
III. IN-KIND CONTRIBUTIONS
"In-Kind Contributions" is the sum of the following expenses:
Security Office Rental
Theater Utilities Facilities Maintenance
CAL PLAZA INC. DOLLAR TOTAL
Represents California Plaza's total financial responsibility
to Angel's Flight Productions. This line is the sum of:
1. CALIFORNIA PLAZA
2. EQUIPMENT PURCHASE FUND
3. SUPPORT SPACE IMPROVEMENT
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 19
OPERATING BUDGET NOTES (EXPENSES):
I. ARTISTIC EXPENSE
1. ARTIST FEES
Artist fees are calculated with the following average fees and
schedule:
Night-time performances: $ 2,500 per performance
Daytime performances: $ 1,000 per performance
Commuter concerts: $ 1,000 per performance
"Street" performances: $ 100 per performance
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
Night 12 weeks 15 weeks 18 weeks 22 weeks 26 weeks
3 per week 3 per week 3 per week 3 per week 3 per week
Day 26 weeks 32 weeks 38 weeks 44 weeks 48 weeks
5 per week 5 per week 5 per week 5 per week 5 per week
Commuter 30 35 40 50 60
Street 10 weeks 12 weeks 16 weeks 20 weeks 26 weeks
5 per week 5 per week 5 per week 5 per week 5 per week
Festivals Each festival will have 24 performances over a three day period
and has the following fee structure:
4 arts groups @ $2500 per group
4 arts groups @ $1000 per group
4 arts groups @ $500 per group
2. COMMISSIONS
Commissions will average $10,000 each. Totals are calculated
according to the following schedule, and include a 15%
administrative fee to be paid to the co-commissioning
organizations:
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
Commissions: 7 7 9 9 11
II. PRODUCTION COSTS
1. FESTIVAL PRODUCTION COSTS
Festival costs were calculated based on the following
considerations:
Total festival budget (see attached "Three Day
Festival Sample Budget") less the following Angel's
Flight Productions costs:
Producer Associate Producer
Technical Director Publicity/Promotion
Stage Manager Graphics/Printing
Ticket set-up/printing Photo/Documentation
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 20
3-5. TECHNICAL STAFF POSITIONS
These salaried positions are 100% in 1992 and include 5%
incremental raises.
6. PART-TIME TECHNICAL ASST.
This position is budgeted at 25% in 1992 and graduates to 100%
in 1996.
7. HOUSE MANAGER
This position is budgeted at 50% in 1992 and graduates to
100% in 1996.
9. SECURITY
Security costs are "in-kind" costs and are based on one person
24 hours per day plus one additional person during performance
times (with a five hour minimum per performance).
IV. ADMINISTRATIVE COSTS
1-4. ADMINISTRATIVE STAFF POSITIONS
All salaries are shown with a 5% annual incremental increase.
Lines 1, 2 and 4 are 100% beginning in 1992: line 4, Associate
Producer, begins at 50% in 1992 and graduates to 100% 1994.
6. DEVELOPMENT CONSULTANT
The development consultant is budgeted at 50% in 1992 and
graduates to 100% in 1996. This could become a staff position
by the year 1996.
8. OFFICE RENTAL (in-kind)
Based on one thousand square feet of office space in
California Plaza at $25 a square foot with move-in costs of
$70 per square foot (1990 dollars).
13. FACILITIES MAINTENANCE (in-kind)
Maintenance and upkeep of plaza performance and support
spaces. Amount unknown.
14. PARKING
Parking costs are are based on $150 per month per staff
position.
V. THEATER EQUIPMENT PURCHASES
The inaugural year figure reflects current recommendations of
architectural and acoustic consultants John von Szeliski, AIA
and McKay Brook Inc. Actual allocation schedule of these costs
is unknown. The recommendations for theatrical lighting and
fixtures are minimal purchase requirements and subsequent year
purchase costs are budgeted accordingly.
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 21
11. APPENDICES
A) SAMPLE ARTISTIC ADVISORY BOARD
Al Nodal Cultural Affairs Department, City of Los Angeles
Michelle Garza East West Players
Joy Silverman Los Angeles Contemporary Exhibitions
Julie Lazar Museum of Contemporary Art
C. Bernard Jackson Inner City Cultural Center
Gordon Davidson Center Theater Group
Bella Lewitzky Dance Gallery
Bill Bushnell Los Angeles Theater Center
Leni Isaacs Los Angeles Philharmonic
Gema Sandoval Plaza de la Raza
Director Chinatown Cultural Center
Jerry Yoshitomi Japanese American Community & Cultural Center
B) PERSONS INTERVIEWED FOR THIS REPORT
Michael Alexander
Performing Arts Division
Cultural Affairs Department, Los Angeles
Judith Barry
Artist
Tomas Benitez
Program Director
Plaza de la Raza
Cheryl Bianchi
Executive Director
Padua Hills Playwrights' Festival
Linda Burnham
18th Street Arts Complex
Marlow Burt
President, Executive Director
Kentucky Center for the Arts
Bill Bushnell
Director
Los Angeles Theater Center
Willie Collins
Folk Arts Program
Cultural Affairs Department, Los Angeles
Melissa Coly
Program Associate Director, NYC
World Financial Center, (Olympia & York)
Llewellyn Crain
Dance Critic, KCRW
Patrick Ela
Director
Craft & Folk Art Museum
Jan Ellenstein
Producer
Festival of Masks
Weba Garrettson
Performing Arts Curator
LACE
Michelle Garza
Director of Development
East West Players
Frank Griffin
APAC Security
David Guffy
Development Director
Kentucky Center for the Arts
Richard Hoyes
Lighting Designer
Mark Taper Forum
Scott Kelman
Artistic Director
Pipeline
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 22
PERSONS INTERVIEWED FOR THIS REPORT (CONT.)
<Table>
Frans Kleinkenberg Steve Schweitzer
President President
Angstrom Stage Lighting Stage Mechanics
Julie Lazar Joy Silverman
Curator, Media & Performing Arts Director
Museum of Contemporary Art LACE
Bella Lewitzky Frank Sonntag
Artistic Director Associate Director of Programming
Dance Gallery Kentucky Center for the Arts
Corey Madden Kathy Spahn
Mark Taper Forum Director
New York International Arts Festival
Jim Matusek
Local 33 - I.A.T.S.E. John von Szeliski AIA
International Association of Project Theatrical Design Architect
Theatrical and Stage Employees
Judith Teitelman
Ronald McKay Development Consultant
Project Acoustical Consultant
McKay, Conant, Brook Carol Wilburn
Vice President, Programming
Deborah Oliver Kentucky Center for the Arts
Booking Manager
Bella Lewitzky Dance Company Terry Wolverton
Choreographer/Producer Director
Woman's Building
Marc Pally
Artist Alex Wright
Kitchen Collective
Shelley Parsons
Strong Partners Publicists
Lillian Romero
President
Baker, Romero & Associates
(Insurers)
Robert Rotollo
Technical Director
Mark Taper Forum
Ken Saylor, AIA
Bob Schiller
Regional Manager
Strand Lighting Corporation
</Table>
CALIFORNIA PLAZA/ANGEL'S FLIGHT PRODUCTIONS PAGE 23
C) AARON PALEY AND AARON SLAVIN: BIOGRAPHIES
AARON PALEY
Founder and Director of Community Arts Resources (CARS), a new
full-service arts resource and management firm (also current irector of the
Craft and Folk Art Museum's Festival of Masks and prior Executive Director of
Fringe Festival/Los Angeles), Aaron Paley is a native of Los Angeles. Paley
returned from New York three years ago where he served as coordinator of Dance
Theater Workshops' two touring subsidy programs, the National Performance
Network and the International Suitcase Fund. A graduate of the UCLA MBA Arts
Management Program, he has worked with theaters, festivals, museums, art
schools, and other art organizations as an administrator, producer, consultant
and fundraiser. His experience includes the Museum of Contemporary Art, Pipeline
Productions, the UCLA Wight Art Gallery, the Craft and Folk Art Museum, the
French journal Art/Textile and the National Endowment for the Arts.
AARON SLAVIN
Currently Executive Producer of Pipeline Inc, Los Angeles' seminal
experimental theater, dance and performance art organization, Slavin was
Production Associate and Assistant to the Director of Operations at Kentucky
Center for the Arts in Louisville. Slavin is affiliated with Community Arts
Resources (CARS) and is also a producing member of the KitchenCollective, a Los
Angeles based experimental theater organization. He founded his own video
production company in San Francisco, Third Rail Media Inc. and was also Media
Coordinator and Special Assistant for Information and Public Affairs to the
Governor of Guam.
ANGEL'S FLIGHT PRODUCTIONS
SAMPLE PRODUCTION SCHEDULE: 1992
See calendar entitled "Angel's Flight Productions Sample Production
Schedule: 1992" set forth as the last page of the Complete Operating Plan
(entitled California Plaza, Angel's Flight Productions 1992-1996, dated March
15, 1989) and attached as Exhibit G to the Bunker Hill Urban Renewal Project
Tenth Implementation Agreement to Disposition and Development Agreement (Parcels
R, S, T, U & Y-l), by and between The Community Redevelopment Agency of the City
of Los Angeles, California (the "Agency") and Bunker Hill Associates, which
Tenth Implementation Agreement is entered into as of June 30, 1989 and which is
a public record on file in the offices of the Agency.
EXHIBIT G
CALIFORNIA PLAZA
ENTERTAINMENT CENTER BUDGET FOR THE "TENANTS"
BASED ON THE PLAN FOR ANGELS' FLIGHT PRODUCTIONS
5 YEAR
1992 1993 1994 1995 1996
AREAS USED IN ANGELS' FLIGHT PROD. 1,731,000 2,318,000 2,956,000 3,313,000 3,638,000
================================================================
AREAS OF EXISTING OR COMMENCING
PHASES 2,235,538 2,632,974 2,632,974 2,632,974 2,632,974
================================================================
ADJUSTED TENANT CONTRIBUTION 643,498 857,704 895,352 869,050 868,923 4,134,527
================================================================================
ADJUSTED TENANT CONTRIBUTION
PER TENANT
PHASE 1A - GRAND AVENUE ASSOC. 282,305 319,480 333,503 323,706 323,659 1,582,654
PHASE 2A - OTP II (ESTIMATED) 361,193 408,757 426,699 414,164 414,104 2,024,918
PHASE 2C - CP HOTEL VENTURE 129,467 135,149 131,179 131,160 526,956
--------------------------------------------------------------------------------
643,498 857,704 895,352 869,050 868,923 4,134,527
================================================================================
ADJUSTED TENANT CONTRIBUTION
PER SQUARE FOOT
PHASE 1A - OFFICE SPACE ONLY 0.30 0.34 0.36 0.35 0.35 1.69
PHASE 2A - OFFICE SPACE ONLY 0.30 0.34 0.36 0.35 0.35 1.70
PHASE 2C - CP HOTEL VENTURE 0.00 0.33 0.34 0.33 0.33 1.33
--------------------------------------------------------------------------------
0.60 1.01 1.05 1.02 1.02 4.72
================================================================================
CALIFORNIA PLAZA
ENTERTAINMENT CENTER BUDGET FOR THE "TENANTS"
BASED ON THE PLAN FOR ANGELS' FLIGHT PRODUCTIONS
5 YEAR
1992 1993 1994 1995 1996 TOTAL
TOTAL PRIVATE UNEARNED INCOME 2,172,900 1,067,704 1,260,198 1,393,502 1,545,598 7,439,902
(PAGE 14)
LESS PRIVATE NON-TENANT SOURCES
INITIAL EQUIPMENT PURCHASES 1,100,000 0 0 0 0 1,100,000
SUPPORT SPACE IMPROVEMENTS 150,000 0 0 0 0 150,000
INDIVIDUAL CONTRIBUTIONS 20,000 25 000 30,000 35,000 40,000 150,000
CO-PRODUCTION FEES 20,000 30,000 40,000 50,000 60,000 200,000
CORPORATE UNDERWRITING 25,000 30,000 35,000 40,000 45,000 175,000
TENANT OPTIONAL GRANTS 100,000 125,000 150,000 175,000 200,000 750,000
--------------------------------------------------------------------------
SUBTOTAL 1,415,000 210,000 255,000 300,000 345,000 2,525,000
--------------------------------------------------------------------------
TENANT TOTAL CONTRIBUTION 757,900 857,704 1,005,198 1,093,502 1,200,598 4,914,902
==========================================================================
AREAS OF "TENANT'S" BUILDING
RENTABLE
SQ. FT. SQ. FT. SQ. FT.
OFFICE LOBBY RETAIL OTHER TOTAL
PHASE 1A - GRAND AVENUE ASSOC. 936,864 20,921 22,953 0 980,738
PHASE 2A - OTP II(ESTIMATED) 1,190,000 23,000 41,800 0 1,254,800
PHASE 2C - CP HOTEL VENTURE 397,436 397,436
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2,126,864 43,921 64,753 397,436 2,632,974
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