INDEX
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LEASE BETWEEN MBK SOUTHERN CALIFORNIA/
MBK MOUNTAIN STATES VENTURES, AS LANDLORD,
AND AMERICAN MULTI-CINEMA, INC., AS TENANT,
COVERING PREMISES IN
HIGHLANDS RANCH, COLORADO
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LEASE
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THIS LEASE, dated as of March 26, 1997, is made by and between MBK
SOUTHERN CALIFORNIA/MBK MOUNTAIN STATES VENTURES, a California general
partnership, with an office at 000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx
00000, ("LANDLORD"), and AMERICAN MULTI-CINEMA, INC., a Missouri corporation,
with an office at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx
00000 ("TENANT").
1. ATTACHMENTS TO LEASE: RENT AND EXPENSE RIDER AND EXHIBITS.
Attached to this Lease and hereby made a part hereof are the following:
RENT AND EXPENSE RIDER - a statement of the Annual Fixed Rent,
Percentage Rent and certain other charges which are to be paid by Tenant
hereunder together with provisions pertaining to the payment thereof.
EXHIBIT A - a legal description of the tract of land constituting the
Demised Land.
EXHIBIT B - a site plan of the Leased Premises (the "SITE PLAN")
showing the location of Tenant's Facility, the Bridge, and other exterior
Improvements on the Demised Land.
EXHIBIT C - a description of Tenant's Facility and the improvements
to be constructed therein, together with provisions pertaining thereto.
EXHIBIT C-1 - a description of the Final Plans.
EXHIBIT C-2 - Schedule of Tenant's Non-Reimbursable Costs.
EXHIBIT C-3 - Schedule of Landlord's Costs.
EXHIBIT C-4 - Construction Schedule
EXHIBIT D - Permitted Exceptions.
EXHIBIT E - Memorandum of Lease.
2. DEFINITIONS AND RULES OF CONSTRUCTION.
(A) The following terms for purposes of this Lease shall have the
meanings hereinafter specified:
"ANNUAL FIXED RENT" shall mean the annual fixed rent payable
hereunder, which shall be the following:
(i) From the Rent Commencement Date through and including the 10th
Lease Year the sum of $2,413,000, per annum.
(ii) During the 11th through and including the 15th Lease Years, the
sum of $2,654,000, per annum.
(iii) During the 16th through and including the 20th Lease Years, the
sum of $2,919,400, per annum.
(iv) During the first Option Period, if exercised, the sum of
$3,211,340, per annum.
(v) During the 2nd Option Period, if exercised, the sum of
$3,532,474, per annum.
(vi) During the 3rd Option Period, if exercised, the sum of
$3,885,721, per annum.
(vii) During the 4th Option Period, if exercised, the sum of
$4,274,294, per annum.
(viii) During the 5th Option Period, if exercise, the sum of
$4,701,723, per annum.
(ix) During the 6th Option Period, if exercised, the sum of
$5,171,895, per annum.
"ANNUAL PERCENTAGE RENT" is defined in the Rent and Expense Rider.
"BRIDGE" shall mean the elevated pedestrian bridge to be constructed
by Tenant over Centennial Boulevard in the location depicted on the Site Plan.
"CLOSING DATE" shall mean the date on which Landlord shall acquire
fee simple title to the Demised Land.
"CONSTRUCTION ALLOWANCE" is defined in EXHIBIT C.
"CONTRACT" shall mean that certain Real Estate Purchase Contract
dated the date hereof between AMC Realty, Inc., a Delaware corporation
("REALTY"), as Seller, and Landlord, as Buyer, pursuant to which Realty has
sold the Demised Land to Landlord.
"DEFAULT RATE" shall mean the lesser of (i) the Prime Rate plus 4%
or (ii) the highest rate of interest that may lawfully be charged to the
party then required to pay interest under this Lease at the Default Rate.
"DEMISED LAND" shall mean the tract of land described on EXHIBIT A
and depicted on the Site Plan.
"FINAL PLANS" is defined in EXHIBIT C.
"FORCE MAJEURE" is defined in the Article captioned "Force Majeure."
"GOVERNMENTAL AUTHORITIES" shall mean all federal, state, county,
municipal and local departments, commissions, boards, bureaus, agencies and
offices thereof, having or claiming jurisdiction over all or any part of the
Leased Premises or the use thereof.
"GROSS RECEIPTS" is defined in the Rent and Expense Rider.
"HAZARDOUS SUBSTANCES" shall mean any substance, material, waste or
item which is or becomes regulated by any federal, state, regional or local
governmental authority because it is in any way hazardous, toxic,
carcinogenic, flammable, radioactive, mutagenic or otherwise adversely
affects any part of the environment, or creates risks of any such hazards or
effects; and shall include, without limitation, (i) asbestos;
(ii) polychlorinated biphenyls; (iii) any material, substance or item included
within the definition of "hazardous substances", "hazardous materials", or
"toxic substances", in, or otherwise identified as hazardous by, the
Comprehensive Environment Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601, ET SEQ., the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, ET SEQ., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, ET SEQ., the Clean
Water Act, 33 U.S.C.
Section 1251, ET SEQ., the Clean Air Act, 42 U.S.C. Section 7401, ET SEQ.,
the Toxic Substances Control Act, 15 U.S.C. Sections 2601 through 2629, or
the Safe Drinking Water Act, 42 U.S.C. Section 3OOf through 300j; in each
case as now or hereafter amended, and any similar federal, state and local
laws (including, without limitation, any applicable Colorado laws), and
ordinances and regulations now in effect or hereafter adopted, published
and/or promulgated pursuant thereto; and (iv) any item, material or substance
hereafter added to any of the above definitions or listings.
"IMPROVEMENTS" shall mean Tenant's Facility and the other
improvements from time to time constructed by Tenant on the Demised Land,
including the Bridge, parking areas, landscaping, sidewalks and similar
improvements. The Improvements do not include Tenant's Property.
"LAWS" shall mean all present and future requirements,
administrative and judicial orders, laws, statutes, ordinances, rules and
regulations of any Governmental Authority.
"LEASE YEAR" is defined in the Rent and Expense Rider.
"LEASED PREMISES" shall mean the Demised Land, the Improvements
and all appurtenances, rights, easements and privileges thereunto belonging
or in any way appertaining.
"MAXIMUM CONSTRUCTION ALLOWANCE" shall mean the amount by which
$22,141,872.00 exceeds the "Purchase Price" paid by Landlord (as Buyer) under
the Contract.
"METROPOLITAN AREA" shall mean the Denver, Colorado metropolitan
area.
"MORTGAGE" shall mean any mortgage or deed of trust or other
instrument in the nature thereof evidencing a security interest in the Leased
Premises or any part thereof.
"MVC/AMC DEED" shall mean that Special Warranty Deed recorded
in the Xxxxxxx County Records in Book 1394, Page 2173 on December 17, 1996.
"NUMBER OF TERM YEARS" shall mean 20 years.
"OPTION PERIODS" shall mean 6 successive separate periods of
5 years each.
"PARENT CORPORATION" is defined in the Article captioned
"Subletting and Assigning."
"PERCENTAGE RATE" shall mean 8%.
"PERMITTED EXCEPTIONS" shall mean those matters described on
EXHIBIT D.
"PRIME RATE" shall mean the per annum interest rate from time
to time publicly announced by Citibank, N.A., New York, New York as its base
rate. If Citibank, N.A. should cease to publicly announce its base rate, the
Prime Rate hereunder shall be the prime, base or reference rate of the
largest bank (based on assets) in the United States which announces such rate.
"RENT" shall collectively mean the Annual Fixed Rent and Annual
Percentage Rent.
"RENT ADJUSTMENT RATE" shall mean 11.25%.
"SITE PLAN" is defined in that Article captioned "Attachments
to Lease."
"RENT COMMENCEMENT DATE" is defined in the Article captioned
"Term."
"TAXES" is defined in the Rent and Expense Rider.
"TENANT'S FACILITY" shall mean the building to be erected by
Tenant pursuant to the provisions of EXHIBIT C and
which shall initially contain approximately 00,000 xxxxxx xxxx xx xxxxx xxxx,
00 auditoriums and 4850 seats.
"TENANT'S OPERATING COVENANT" is defined in the Article captioned
"Tenant's Covenant to Operate."
"TENANT'S OPERATING PERIOD" shall mean the period beginning on
the date Tenant opens Tenant's Facility for business with the public and
ending on the 10th anniversary of such date; PROVIDED, HOWEVER, Tenant's
Operating Period shall be extended by the number of days that Tenant is in
breach of Tenant's Operating Covenant.
"TENANT'S PROPERTY" is defined in the Article captioned
"Fixtures."
"TENANT'S WORK" is defined in EXHIBIT C.
"TERM OF THIS LEASE" or "TERM HEREOF" shall mean the initial
term as provided in the Article captioned "Term" and any renewal or extension
thereof.
(B) The following rules of construction shall be applicable
for all purposes of this Lease, unless the context otherwise requires:
(1) The terms "hereby," "hereof," "hereto," "herein,"
"hereunder" and any similar terms shall refer to this Lease, and the term
"hereafter" shall mean after, and the term "heretofore" shall mean
before, the Closing Date.
(2) Words of the masculine, feminine or neuter gender shall
mean and include the correlative words of the other genders and words
importing the singular number shall mean and include the plural number
and vice versa.
(3) The terms "include," "including" and similar terms shall
be construed as if followed by the phrase "without being limited to."
3. PREMISES.
Landlord hereby demises and leases unto Tenant, and Tenant hereby
leases from Landlord, for the consideration and upon the terms and conditions
herein set forth, the Leased Premises, subject to the Permitted Exceptions.
Tenant acknowledges that it has reviewed and approved the Permitted
Exceptions, and has inspected and approved the physical condition of the
Leased Premises, and that after such review, Tenant acknowledges and agrees
that the Demised Land and Leased Premises are suitable for the construction
of the Improvements and operation of the Leased Premises for the uses
intended under SECTION 7(A) hereof.
4. TERM.
The "preliminary term" of this Lease shall commence as of the
Closing Date and shall expire on the day preceding the Rent Commencement
Date. The "RENT COMMENCEMENT DATE" shall be the earlier of (i) December 19,
1997 (subject to Force Majeure, but Force Majeure shall not postpone the Rent
Commencement Date beyond March 15, 1998), or (ii) the date on which Tenant
opens Tenant's Facility to the public for business. The initial term shall
begin on the Rent Commencement Date, and shall
expire as of midnight on the last day of the last year of the Number of Term
Years from the first day of the first month immediately following the Rent
Commencement Date; PROVIDED, HOWEVER, if the term of the Lease is scheduled
to expire between October 31 and December 31, then instead, the last Lease
Year shall be longer than 12 months, and shall end on the next succeeding
January 31. When the Rent Commencement Date has been determined, Landlord and
Tenant shall enter into an agreement in recordable form setting forth such
date and the expiration date of the initial term of this Lease.
5. RENT: NET LEASE; COMPLIANCE WITH PERMITTED EXCEPTIONS.
(A) Tenant shall pay Landlord the Annual Fixed Rent in the manner
set forth in the Rent and Expense Rider commencing on the Rent Commencement
Date.
(B) It is the intent of the parties that this shall be construed as
an "ABSOLUTE NET LEASE," and that Landlord shall receive the Rent net of any
charges, Taxes, fees, impositions, or other expenses associated with the
Leased Premises or the operations thereon, and that all such charges and
expenses shall be discharged without cost or liability to Landlord.
(C) Tenant shall comply with the Permitted Exceptions, and shall
indemnify and hold Landlord harmless from and against all loss, costs,
liability and expenses (including reasonable attorneys' fees) suffered by
Landlord as a consequence of Tenant's breach of the foregoing covenant.
Without limiting the foregoing provisions of this Paragraph, Tenant
acknowledges that Tenant's obligations under the Permitted Exceptions
include, without limitation, the following: (i) all of the obligations
imposed upon the owner of the Leased Premises pursuant to the MVC/AMC Deed,
including "Grantee's Operating Covenant" specified in Section 1.6 of such
Deed; and (ii) the obligations of AMC Realty, Inc., a Delaware corporation
("Realtv"), as purchaser under that certain Vacant Land Purchase and Sale
Agreement dated April 26, 1996 between Mission Viejo Company and Realty,
including the obligations under Section 6.4 thereof with respect to the
Willows Well Site, landscaping under Section 6.5 thereof, compliance with
Resolution No. R-996-154 of the Board of County Commissioners of Xxxxxxx
County, Colorado, concerning construction of the Bridge and the required
insurance and license referenced in such Resolution, compliance with the Site
Improvement Plan Improvements Agreement dated December 10, 1996, the County
approved Site Improvement Plan (SIP #96-066) and if required by the
applicable governmental authorities, erection of the traffic signal at Plaza
Drive and Centennial Drive. Landlord shall cooperate with Tenant (without
cost or liability to Landlord) in securing necessary governmental permits and
approvals.
(D) Landlord agrees that Landlord shall exercise all of the rights
exercisable by the fee owner of the Demised Land under the Permitted
Exceptions only in a manner consistent with Landlord's and Tenant's
respective rights and interests under this Lease. Prior to exercising any
such rights which may affect Tenant's rights and interests hereunder or
amending any of the Permitted Exceptions, Landlord shall notify Tenant
thereof, and shall obtain Tenant's consent thereto, which consent shall not
be unreasonably withheld, conditioned or delayed. If Tenant shall withhold
its consent to any such action proposed by Landlord, Tenant shall notify
Landlord of its reasons therefor. If Tenant shall fail to respond to
Landlord's proposal within 30
days after receipt thereof, Tenant shall be deemed to have consented to
such action by Landlord, PROVIDED the transmittal letter pursuant to
which Landlord seeks Tenant's consent conspicuously states the following
in bold type face: "PURSUANT TO SECTION 5(D) OF THAT CERTAIN LEASE DATED
MARCH 26, 1997, RESPECTING PREMISES LOCATED IN HIGHLANDS RANCH, DENVER,
COLORADO, LANDLORD IS REQUESTING THAT YOU APPROVE THE FOLLOWING PROPOSED
ACTIONS TO BE TAKEN BY LANDLORD, AND YOU SHOULD BE AWARE THAT YOUR
FAILURE TO RESPOND WITHIN 30 DAYS FROM YOUR RECEIPT OF THIS LETTER SHALL
BEDEEMED YOUR APPROVAL OF SUCH PROPOSED ACTIONS." NOTWITHSTANDING THE
FOREGOING SENTENCE, IF THE TERMS OF ANY PERMITTED EXCEPTION REQUIRE THAT
LANDLORD EXERCISE ITS RIGHTS UNDER SUCH PERMITTED EXCEPTION IN LESS THAN
30 DAYS, THE PERIOD OF TIME IN WHICH TENANT MUST RESPOND TO LANDLORD'S
REQUEST SHALL BE REDUCED PROVIDED THAT THE ALERT NOTICE SPECIFIES SUCH
SHORTER PERIOD OF TIME IN WHICH TENANT MUST RESPOND.
6. AUTHORITY: TRANSFER OF TITLE.
(A) Landlord represents and warrants to Tenant that Landlord has full
right and lawful authority to enter into and perform Landlord's obligations
under this Lease for the term hereof.
(B) Landlord shall promptly notify Tenant in writing of any change in
the ownership of the Leased Premises, giving the name and address of the new
owner and instructions regarding the payment of rent. In the event of any
change in or transfer of title of Landlord in and to the Leased Premises or
any part thereof, whether voluntary or involuntary, or by act of Landlord or
by operation of law, Tenant may continue to pay Rent thereafter accruing to
the party previously comprising Landlord until (i) Tenant shall have been
notified of such change in title and given reasonably satisfactory proof
thereof, and (ii) such new owner shall execute and deliver an agreement, in
recordable form, whereby such new owner assumes and agrees with Tenant to
discharge all obligations of Landlord under this Lease thereafter arising,
and the payment of Rent to the former Landlord in the meantime shall not be
deemed a default upon the part of Tenant. Upon the satisfaction of the
conditions in clauses (i) and (ii), the former Landlord shall be released of
all obligations subsequently accruing hereunder, other than the obligation
to pay the Construction Allowance.
7. USE OF PREMISES.
(A) During the period commencing with the date Tenant opens Tenant's
Facility for business and ending on expiration or earlier termination of
Tenant's Operating Covenant, Tenant shall not use Tenant's Facility except
(i) primarily as a first, class (but not necessarily first run) theatre and
auditorium for presentation of motion pictures, telecasts and other
audio-visual presentations, and for meetings and other public presentations
and entertainment; (ii) for the incidental operation~therein of games and
other amusement devices (electronic or otherwise); (iii) for the incidental
retail sale therein of food, beverages and refreshments; (iv) for the
incidental sale or rental (or both) of video cassettes and discs; (v) for
the incidental sale of records, compact discs, books, magazines, toys and
novelties sold in connection with a particular presentation; and (vi) for
the incidental sale of other goods, wares, merchandise and services.
(B) From and after the expiration of Tenant's Operating Covenant, Tenant
may use the Leased Premises, if used at all, for any lawful purpose(s).
(C) Notwithstanding the foregoing provisions of this Article, Tenant
shall not use the Leased Premises in any
manner which would violate the Permitted Exceptions or Laws.
(D) Landlord agrees to execute, without cost to Landlord, such
applications, consents and other instruments as shall be required by
Governmental Authorities to permit the use of the Leased Premises as
permitted by this Lease. Tenant shall indemnify, defend and hold Landlord
harmless for any liability, loss, claim or expense incurred by Landlord as a
consequence of Landlord executing any such instruments.
8. SUBLETTING AND ASSIGNING.
(A) At any time after the expiration of Tenant's Operating Covenant,
Tenant shall have the right, subject to Landlord's consent, which shall not
be unreasonably withheld or delayed, to assign this Lease or sublet all or
any part of the Leased Premises once or more often.
(B) If Tenant assigns this Lease or sublets all or any part of the
Leased Premises, Tenant shall, subject to the provisions of paragraph (C) of
this Article, remain liable and responsible under this Lease; PROVIDED,
HOWEVER, in the case of an assignment, if this Lease shall continue in
effect after the last day of the initial term hereof and if the assignee
shall have assumed in writing in form reasonably satisfactory to Landlord
the performance of the covenants and obligations of Tenant hereunder and
delivered to Landlord a copy of such written assumption, Tenant shall not be
liable or responsible to Landlord for any default or nonperformance by such
assignee as tenant hereunder arising or occurring after the last day of the
initial term hereof,
(C) Anything in this Lease to the contrary notwithstanding, it is agreed
that at any time during the term of this Lease, Tenant shall have the right,
without Landlord's consent, once or more often, to:
(1) Sublease or license the operations referred to in clauses (ii),
(iii), (iv), (v) and (vi) of paragraph (A) of the Article captioned "Use
of Premises," or grant concessions giving other parties the right to
conduct such operations or any of them.
(2) Sublet the Leased Premises or assign this Lease (a) to any
corporation (which term for the purposes of this paragraph shall include
any form of business entity), which may, as the result of a
reorganization, merger, consolidation, or sale of assets, succeed to the
business now carried on by Tenant in the Metropolitan Area, or (b) to any
subsidiary or affiliate corporation of Tenant, of "Parent Corporation",
or of AMC Entertainment, Inc., a Delaware corporation ("AMCE"), which
currently owns 100% of the issued and outstanding stock of Tenant named
herein, which remains as such, or (c) to AMCE or to another corporation
("PARENT CORPORATION") which owns 100% of the issued and outstanding
stock of Tenant, or (d) to any corporation which acquires 50% or more of
the issued and outstanding voting stock (or such lesser percentage as
shall be sufficient to acquire voting control) of Tenant, AMCE, or of
Tenant's Parent Corporation, or (e) to any corporation which operates at
least 100 motion picture screens as of the end of the last complete
calendar month immediately preceding any such assignment or subletting
and to any subsidiary or affiliate of such corporation, provided that
such corporation duly and validly then guarantees the performance of the
obligations of such subsidiary or affiliate under this Lease, or (f) to
any corporation which shall acquire the Leased Premises in a transaction
whereby Tenant shall continue to have the right to operate the Leased
Premises pursuant to a sublease, management
contract, operating agreement or otherwise.
(3) If Tenant shall assign this Lease, Tenant shall be released
and relieved from further liability under this Lease arising or
accruing after the later of (a) the 5th anniversary of the date of
this Lease, or (b) the date of such assignment, provided in the case
of both (a) and (b) all of the following conditions are satisfied: (i)
the assignee, by written instrument (in form reasonably satisfactory
to Landlord) duly executed, acknowledged and delivered to Landlord,
assumes and covenants and agrees with Landlord to perform all the
terms, covenants and conditions of this Lease which by the terms
hereof are binding on Tenant from and after such transfer, and (ii)
such assignee (orthe guarantor of such assignee's obligations under
this Lease pursuant to a guaranty in form reasonably satisfactory to
Landlord) has a book net worth of $150,000,000.00 or more as of the
end of the last complete calendar month immediately preceding any such
assignment, and Tenant has delivered to Landlord such assignee's or
guarantor's financial statement, certified by an independent certified
public accountant reflecting such net worth. Such net worth shall be
computed in accordance with generally accepted accounting principles
consistently applied.
(4) Tenant shall be entitled to enter into so-called "four-wall"
deals whereby Tenant's Facility or any part thereof is permitted to be
used by others on a limited engagement basis for the exhibition of a
motion picture, provided such four wall deals do not exceed 48 screen
weeks per annum. For this purpose, a "screen week" is the use of one
auditorium for one week.
With respect to any assignment or subletting under subparagraph (2)
above, Tenant shall promptly notify Landlord thereof, and shall
concurrently furnish Landlord with evidence reasonably satisfactory to
Landlord that the conditions set forth in subparagraph (2) have been
satisfied.
(D) Except as otherwise provided in this Article, Tenant shall not
assign this Lease or sublet the Leased Premises without `the consent of
Landlord, which consent Landlord agrees not to unreasonably withhold or
delay.
(E) If Tenant assigns this Lease and remains liable hereunder, then
Landlord, when giving notice to said assignee or any future assignee in
respect of any default, shall also serve a copy of such notice upon the
original tenant named in this Lease, American Multi-Cinema, Inc. (the
"ORIGINAL TENANT") and no notice of default shall be effective until a copy
thereof is received by the Original Tenant. The Original Tenant, at its sole
option, shall have the same period after receipt of such notice to cure such
default as is given to Tenant under this Lease. If because of a default of
an assignee after an assignment of this Lease (i) this Lease shall
terminate, or (ii) this Lease and the term hereof ceases and expires, or
(iii) an assignee's possession of the Leased Premises shall be terminated
without termination of this Lease (Landlord hereby agreeing to terminate
this Lease upon Original Tenant and Landlord executing a new lease if
Original Tenant exercises its option to become the tenant thereunder), then
in any of such events Landlord shall promptly give the Original Tenant
notice thereof, and the Original Tenant shall have the option, to be
exercised by notice to Landlord given within 30 days with respect to
non-monetary defaults, and within 15 days with respect to monetary
defaults, in each case, after receipt by the Original Tenant of Landlord's
notice, to cure any default and become Tenant under a new lease for the
remainder of the term of this Lease (including any renewal periods) upon all
of the same terms and conditions as then remain under this Lease as it may
have been amended, provided such amendment shall not
sale and distraint for unpaid rent, or any other right, interest or lien
which Landlord has or may hereafter acquire in any of Tenant's Property.
(B) Tenant shall have the right to finance the acquisition and
installation of Tenant's Property (by granting a security interest therein
or entering into an equipment lease therefor), and in connection therewith,
Landlord agrees to execute and to cause the holder of any Mortgage to
execute and deliver a Landlord's and mortgagee's waiver and all other
documents reasonably required and in reasonable form by such lessor of or
holder of a security interest in Tenant's Property.
11. UTILITIES.
Tenant shall pay when due all charges for gas, electricity, water, sewer
service and other utilities used on the Leased Premises during the term
hereof, all such utilities to be separately metered at Tenant's expense
and to be obtained by Tenant from the applicable utility company.
Landlord shall not be liable, and Tenant shall not be entitled to xxxxx
Rent, for any failure or interruption of any utility or service.
12. GOVERNMENTAL COMPLIANCE: HAZARDOUS SUBSTANCES.
(A) Tenant, at Tenant's expense, shall comply with all Laws and with the
requirements of Tenant's insurance carriers, which affect Tenant's Property
and/or the Leased Premises and the use and occupancy thereof, including
those which require alterations or additions, structural or otherwise, and
shall comply with the Permitted Exceptions, to the extent the same pertain
to the Leased Premises.
(B) Tenant shall not cause or permit any Hazardous Substances to be
used, stored, generated or disposed of (collectively "Used") on, in or under
the Leased Premises, including in connection with construction of the
Improvements, except for those Hazardous Substances which may lawfully be
Used in normal amounts in the ordinary course of business in the operation
of the Leased Premises or which may be reasonably required in performing the
obligations of Tenant under this Lease, and then only to the extent no Laws
are violated in so doing. Tenant shall indemnify, defend, protect, and hold
Landlord and Landlord's Mortgagee harmless from and against any and all
actions (including, without limitation, remedial or enforcement actions of
any kind, administrative or judicial proceedings, and orders or judgments
arising out of or resulting therefrom), costs, claims, damages (including,
without limitation, punitive damages), expenses (including, without
limitation, attorneys', consultants' and experts' fees, court costs and
amounts paid in settlement of any claims or actions), fines, forfeitures or
other civil, administrative or criminal penalties, injunctive or other
relief (whether or not based upon bodily injury, property damage, or
contamination of, or adverse effects upon, the environment, water tables or
natural resources), liabilities or losses arising from a breach of the
foregoing prohibition by Tenant, or Tenant's affiliates, agents, employees,
contractors, sublessees, assignees or invitees. In the event that Hazardous
Substances are discovered upon, in, or under the Leased Premises, and any
Governmental Authority having jurisdiction over the Leased Premises
requires the remediation of such Hazardous Substances, Tenant shall be
responsible for remediating such Hazardous Substances in compliance with
Laws.
13. REPAIRS AND MAINTENANCE.
(A) Tenant, at Tenant's sole expense, covenants and agrees to keep
and maintain in good order, condition and repair (including making
necessary replacements) the Leased Premises, including structural and
non-structural portions thereof, the roof, exterior and interior walls,
foundations, doors, door frames and windows, utility lines, plate glass;
storefronts, sprinkler Systems, floors, ceilings electrical and
mechanical Systems, plumbing and sewage facilities, heating and air
conditioning equipment and faciIities contained within or serving
Tenant's Facility, and all other Improvements on the Leased Premises,
including the Bridge, parking areas, sidewalks, signs and
landscaping,
(B) Upon the expiration of the Term of this Lease, Tenant shall
surrender the Leased Premises in good order, condition and repair,
reasonable wear and tear excepted.
(C) Notwithstanding anything set forth in paragraphs (A) or (B) of
this Article to the contrary, Tenant's obligations set forth therein
shall be subject to the provisions set forth in the Articles captioned
"Damage Clause" and "Condemnation."
14. DAMAGE CLAUSE.
(A) If the Improvements shall be damaged or destroyed by fire or other
casualty, either in whole or in part, Tenant shall with due diligence remove
any resulting debris and repair and/or rebuild the same, in accordance with
the Final Plans (to the extent permitted by then applicable Laws), subject
to such changes therein as Tenant may propose and which are approved by
Landlord and Landlord's mortgagee, which approvals shall not be unreasonabIy
withheld or delayed. During the period of such restoration, there shall be
no abatement of the Rent.
(B) Anything in this Article to the contrary notwithstanding, it is
agreed that if (i) Tenant's Facility is damaged or destroyed by fire or
other cause to such an extent that the cost of restoration would exceed 35%
of the amount it would have cost to replace Tenant's Facility in its
entirety at the time such damage or destruction occurred, and (ii) such
damage or destruction occurs during the last 3 years of the initial term, or
during the last 3 years of any Option Period, then Tenant shall have the
right and option to terminate this Lease by giving Landlord notice of such
election within 30 days after the date on which such damage or destruction
occurred, and if such notice is given this Lease shall terminate as of the
date Tenant vacates the Leased Premises, which date shall be no later than
45 days after the giving of such notice, and the Rent shall be adjusted as
of the effective date of termination.
(C) In addition to the other rights of termination accorded Tenant under
this Article, it is agreed that if (i) Tenant's Property is damaged or
destroyed by fire or other casualty to the extent of 35% or more of the
amount it would have cost to replace the same in its entirety at the time
such damage or destruction occurred, and (ii) such damage or destruction
occurs during the last 3 years of the initial term hereof or during the last
3 years of any Option Period, then Tenant shall have the right to terminate
this
Lease by notice to Landlord given within 60 days after the date on
which such damage or destruction occurred, and this Lease shall
automatically terminate as of the date Tenant vacates the Leased Premises
and the Rent shall be adjusted as of the effective date of termination.
(D) If this Lease is terminated as in this Article provided following
damage to or destruction of Tenant's Facility, the proceeds of all hazard
insurance on the Leased Premises which is maintained by Tenant pursuant to
the Article captioned" Insurance, Indemnity, Waiver of Subrogation," etc.
shall belong to Landlord, except insurance proceeds in respect of Tenant's
Property, which shall belong to Tenant, and Tenant shall pay to Landlord any
insurance deductible maintained thereunder and the amount of self-insurance,
if any, maintained by Tenant.
15. INSURANCE, INDEMNITY, WAIVER OF SUBROGATION AND FIRE PROTECTION.
(A) During the preliminary term, Tenant shall keep or cause its
contractor to keep in full force and effect a policy in commercially
reasonable form of builder's risk insurance covering loss or damage to
the Improvements to the extent of not less than 100% of the
replacement cost thereof, exclusive of foundations and footings.
Thereafter, during the term hereof, Tenant, at Tenant's expense, shall
keep the Leased Premises (excluding foundations, footings and underground
improvements) insured in the name of Landlord and Tenant (as their
interests may appear) against damage or destruction by fire and the
perils commonly covered under a policy of property insurance on a special
causes of loss form (formerly known as "all risk" insurance), to the
extent of not less than 100% of the full replacement cost thereof, with a
commercially reasonable deductible (the amount of which commercially
reasonable deductible is currently not in excess of $250,000.00), which
deductible shall also apply to the builder's risk insurance required
above. Provided that Tenant is not then in default, after applicable
notice and cure periods, the proceeds of such insurance in case of loss
or damage shall be held in trust by Landlord or Landlord's Mortgagee and
disbursed (in a manner substantially similar to the procedure for payment
of the Construction Allowance) to Tenant during the course of Tenant's
restoration of the Improvements pursuant to the Article captioned "Damage
Clause" to the extent that such proceeds are required for such purpose.
The insurance required to be carried by Tenant under this paragraph and
paragraph (B) of this Article (i) may be covered under a so-called
"blanket" policy covering other operations of Tenant and its affiliates,
and (ii) shall be evidenced by a certificate of insurance from Tenant's
insurer. Tenant shall name the holder of the first Mortgage on the Leased
Premises (currently, the Sakura Bank, Limited, Los Angeles Agency)
pursuant to a standard mortgagee clause with respect to the foregoing
property insurance (including the builder's risk insurance), provided
such holder agrees with Tenant in writing to disburse such insurance
proceeds to Tenant for, and periodically during the course of, repair and
restoration of the Improvements as set forth in this Lease. During the
continuance of Tenant's Operating Covenant, Tenant shall maintain
property insurance on Tenant's Property, consistent with the insurance
coverage Tenant maintains on Tenant's Property in its similar facilities.
(B) Tenant will, subject to the provisions of paragraph (C) of this
Article, indemnify and save harmless Landlord, its officers, agents and
servants, from and against any and all claims, actions, liability and
expense in connection with loss of life, bodily injury and/or damage to
property arising from or out of any occurrence in, upon or
at the Leased Premises, or the occupancy or use by Tenant of the Leased
Premises or any part thereof, unless the same is caused by the willful or
sole negligent act or omission of Landlord, its agents, contractors or
employees. If any action or proceeding is brought against Landlord, its
officers, agents or servants by reason of any of the aforementioned
causes, Tenant, upon receiving notice thereof from Landlord, agrees to
defend such action or proceeding by adequate counsel at its own expense.
Tenant agrees to insure the foregoing obligation by contractual
endorsement, and at all times during the term hereof to maintain, a
commercial general liability policy (which may be a blanket policy on
which Landlord and Landlord's mortgagee [provided Tenant has been
notified of the name and address of such mortgagee] are named as
additional insureds) with single limits of not less than $5,000,000.00
(it being agreed that Tenant shall periodically increase such liability
limits so that the same are at all times at least equal to the primary
liability limits maintained by Tenant for the majority of its comparable
facilities); PROVIDED, HOWEVER, in lieu of all or part of such commercial
liability insurance, Tenant may, so long as Tenant has a net worth of at
least $50,000,000.00, self-insure up to $100,000 single limits per
occurrence for each $10,000,000 of Tenant's net worth as reflected on
Tenant's most recent audited balance sheet computed in accordance with
generally accepted accounting principles, consistently applied. To the
extent that Tenant shall self-insure against any risk, Tenant hereby
agrees to maintain adequate (in Tenant's sole discretion) reserves
against claims, losses and liabilities arising from causes which would
otherwise have been covered by insurance, and to reimburse, pay,
indemnify and hold Landlord harmless and defend Landlord against any and
all judgments, liabilities, claims, losses, damages, expenses and costs
which would otherwise have been covered by the insurance required herein.
If Tenant shall elect to self-insure, then on the dates set forth in
Section 1 5(F) hereof for delivery of policies or certificates of
insurance, Tenant shall deliver to Landlord a Certificate signed by an
officer of Tenant, setting forth the amount of Tenant's self-insured
retention respecting each risk or peril with respect to which Tenant has
elected to self-insure hereunder; however, the foregoing shall not be
required if the amount of the self-insured retention is reflected on the
Certificate of Insurance provided by Tenant's insurance carrier. Tenant
shall, within thirty (30) days after any change in the amount of its
self-insured retention respecting any such risk or peril, deliver to
Landlord a revised Certificate.
(C) Anything in this Lease to the contrary notwithstanding, it is agreed
that each party (the "RELEASING PARTY") hereby releases the other (the
"RELEASED PARTY") from any liability which the Released Party would, but for
this paragraph, have had to the Releasing Party during the term of this
Lease resulting from any accident or occurrence or casualty(i) which is
covered by the insurance Tenant is required to maintain pursuant to
Paragraph (A) above, and (ii) which is covered by any other casualty or
property damage insurance being carried by the Releasing Party at the time
of such occurrence, which casualty may have resulted in whole or in part
from any act or neglect of the Released Party, its officers, agents or
employees; PROVIDED, HOWEVER, the release hereinabove set forth shall become
inoperative and null and void if the Releasing Party wishes to place such
insurance with an insurance company which (y) takes the position that the
existence of such release vitiates or would substantially adversely affect
any policy so insuring the Releasing Party and notice thereof is given to
the Released Party, or (z) requires the payment of a higher premium by
reason of the existence of such release, unless in the latter case the
Released Party within 20 days after notice thereof from the Releasing Party
pays such increase in premium. Subject to the foregoing proviso, each policy
of property insurance shall contain appropriate provisions recognizing this
mutual release and waiving all rights of subrogation by the respective
insurance
carriers.
(D) To the extent required by Laws, Tenant shall also maintain workers'
compensation insurance covering its employees in statutory limits. Tenant
shall also keep in full force a policy in commercially reasonable form of
owned, if any, hired and non-owned automobile liability insurance with
limits of at least One Million Dollars ($1,000,000), and builder's risk
insurance in appropriate amounts whenever Tenant is undertaking any
construction or alterations at the Leased Premises. At any time as Tenant
may be serving alcoholic beverages on the Leased Premises, Tenant shall also
maintain liquor liability or host liquor liability insurance with the same
limits as the commercial general liability insurance required under SECTION
1 5(B) of this Lease.
(E) All policies of insurance (other than self-insurance) required to be
maintained under this Article shall be provided by insurance carriers with a
Best's rating of not less than A VII. Any insurance coverage enumerated
above may be effected by a blanket policy or policies of insurance or under
so-called 'all risk" or "multi-peril" insurance policies, provided that the
total amount of insurance available with respect to the Leased Premises and
Tenant's liability hereunder shall be at least equal to the equivalent of
separate policies in the amounts herein required, and provided further that
in other respects any such policy or policies shall comply with the
provisions of this Article. All insurance carried by Tenant shall be primary
and any insurance, if any, carried by Landlord shall be non-contributory.
(F) Upon commencement of the preliminary term (as to builder's risk and
liability insurance), and upon commencement of the initial term (as to
property insurance), and in each case no less than annually thereafter,
Tenant shall cause to be issued to Landlord a duplicate of each policy or
appropriate certificates of insurance reasonably acceptable to Landlord
evidencing compliance with the applicable insurance provisions of this
Article. Each such Certificate shall provide that no expiration,
cancellation or material change in the insurance evidenced thereby shall be
effective unless thirty (30) days' notice of such expiration, cancellation
or material change shall have been given to the Certificate holder.
16. TENANT'S REAL ESTATE TAXES.
Commencing as of the Closing Date (i.e., including the preliminary
term of this Lease), Tenant shall pay all Taxes as provided in the Rent
and Expense Rider.
17. ALTERATIONS AND TENANT'S LIENS.
(A) Tenant shall have the right and privilege at all times during the
term hereof, at its own expense, to make such alterations, changes,
improvements and additions to the Leased Premises as Tenant may desire
(including, without limitation, the installation of a satellite dish on the
roof of Tenant's Facility) provided such work, when completed, will not
impair the value of the Leased Premises. Subject to the provisions of the
Article captioned "Fixtures," any alterations, changes, improvements and
Additions made by Tenant shall immediately become the property of Landlord
and shall be considered a part of Tenant's Facility.
(B) Tenant shall not permit any mechanic's or materialman's lien to be
filed against the Leased Premises by reason of work, labor, services or
materials performed by or furnished to Tenant or anyone holding any part of
the Leased Premises under Tenant; PROVIDED, HOWEVER, if any such lien shall
at any time be filed, Tenant may contest the same in good faith but Tenant
shall, within 30 days after notice of the filing thereof, cause such lien to
be released of record by payment, bond, order of a court of competent
jurisdiction or otherwise. Nothing contained in this Lease shall be
construed as a consent on the part of Landlord to subject Landlord's estate
in the Leased Premises to any lien or liability under the lien laws of the
state in which the Leased Premises are located.
(C) Tenant shall give Landlord at least thirty (30) days' notice before
making any alterations to the Leased Premises (i) which cost more than One
Hundred Thousand Dollars ($100,000) (in 1997 dollars), or (ii) which affect
the structural condition of the Improvements or which modify the Site Plan,
or(iii) which require approval pursuant to (or are prohibited by) any of the
Permitted Exceptions, and in connection with any such alteration, Tenant
shall maintain builder's risk insurance and shall maintain, and cause its
contractor(s) to maintain, worker's compensation insurance in statutory
limits. After completing any alteration with respect to which Tenant is
required by Laws to submit to Governmental Authorities a "permit" set of
plans, Tenant shall provide Landlord with a copy of such plans. Tenant shall
cause all alterations to be completed at Tenant's sole cost in a good and
workmanlike manner, lien free and in compliance with all Laws and the
Permitted Exceptions. Landlord shall have the right to post a notice of
non-liability on the Leased Premises with respect to any alteration made by
Tenant.
18. CONDEMNATION.
(A) If any material part of Tenant's Facility shall be taken in any
proceeding by any Governmental Authority by condemnation or otherwise, or
be acquired for public or quasi-public purposes, or be conveyed under threat
of such taking or acquiring (which Landlord shall not do without Tenant's
prior consent), Tenant shall have the option of terminating this Lease by
notice to Landlord of its election to do so given on or before the date
which is 6 months after Tenant shall have been deprived of possession of the
condemned property, and upon the giving of such notice this Lease shall
automatically terminate and the Annual Fixed Rent and other charges
hereunder shall be adjusted as of the date of such notice. In the event a
material part of Tenant's Facility is so taken and Tenant elects not to
terminate this Lease, then Landlord shall, at Landlord's expense, restore
Tenant's Facility to a complete unit as similar as reasonably possible in
design, character and quality to the building which existed before such
taking. In the event Tenant's Facility is partially taken and this Lease is
not terminated, the Annual Fixed Rent and other charges thereafter payable
hereunder shall be equitably reduced based on the value to Tenant of the
remaining premises. If Landlord shall be obligated to perform restoration
work under this paragraph, so much of the Annual Fixed Rent and other
charges payable by Tenant as is fairly allocable to the space which is to be
restored shall xxxxx until such restoration work shall have been completed.
Any restoration work to be performed by Landlord pursuant to this paragraph
shall be completed in accordance with plans and specifications which shall
have been approved by Tenant, such approval not to be unreasonably withheld.
In any such proceeding whereby all or part of the Leased Premises is taken,
whether or not Tenant elects to terminate this Lease, the entire award
(other than that portion, if any, allocable to Tenant's Property) shall be
paid to Landlord. For purposes of this Article 18(A), a "material part of
Tenant's Facility" shall mean so much of Tenant's Facility so that, when
taken, such taking leaves the untaken portion unsuitable for the continued
feasible, economic and competitive operation of the Leased Premises by
Tenant for the same purposes as used immediately prior to such taking, as
reasonably determined by Tenant.
(B) If (i) 10% or more of the parking area within the Leased Premises
shall be taken (and not replaced with
substantially equivalent alternative parking) in any proceeding by any
Governmental Authority by condemnation or otherwise, or be acquired for
public or quasi-public purposes, or be conveyed under threat of
such taking or acquiring (which Landlord shall not do without Tenant's
prior consent), or (ii) any material means of access to the Leased
Premises from any public street abutting the Leased Premises shall be
lost, terminated or materially altered by reason of any such taking,
acquisition or conveyance or other governmental action on more than a
temporary basis, and such taking results in inadequate access to the
Leased Premises, as reasonably determined by Tenant, or (iii) the Bridge
shall be taken by Governmental Authorities, then in any of such events
Tenant shall have the option of terminating this Lease by notice to
Landlord of its election to do so given on or before the date which is 6
months after the occurrence of such event, and this Lease shall
automatically terminate 30 days after the giving of such notice and the
Annual Fixed Rent and other charges hereunder shall be adjusted as of
that date.
(C) If by reason of a taking Tenant shall be temporarily deprived in
whole or in part of the use of the Leased Premises or any part thereof, the
entire award made as compensation therefor shall belong to Tenant, and there
shall be no abatement of the Annual Fixed Rent payable hereunder.
(D) Landlord shall not initiate or take any action seeking a public or
private taking of Tenant's Facility or of any other part of the Leased
Premises.
19. CONSTRUCTION OF TENANT'S FACILITY AND OTHER IMPROVEMENTS.
Subject to Landlord's funding of the Construction Allowance in
accordance with EXHIBIT C, Tenant agrees to erect, make and complete,
without cost to Landlord, Tenant's Facility and the other Improvements in
accordance with the provisions set forth in EXHIBIT C and the Permitted
Exceptions no later than the Completion Deadline (as such term is defined
in SECTION 1.13 of the MVC/AMC Deed.
20. OPENING OF TENANT'S FACILITY.
(A) Tenant agrees that it will proceed to open Tenant's Facility fully
staffed, fixtured and merchandised to the public for business as a first
class AMC theatre by December 19, 1997, subject to delays resulting from
Force Majeure, and if Tenant fails to so initially open for business by June
19, 1999 ("OUTSIDE OPENING Date") (irrespective of Force Majeure), then in
addition to Landlord's other remedies, during the period between the Outside
Opening Date and the date Tenant so opens for business, the Annual Fixed
Rent shall be 125% of the amount otherwise payable by Tenant.
(B) If Tenant shall breach the covenant to open for business set forth
in SECTION 1.23 of the MVC/AMC Deed, Tenant shall be responsible for, and
shall pay directly to Mission Viejo Company, the Five Hundred Dollar
($500.00) per day liquidated damage amount set forth therein.
21. OPTIONS TO EXTEND.
(A) Provided Tenant is not in default beyond the expiration of any
applicable notice and grace period either at the time Tenant exercises the
option or as of the commencement of the Option Period, Tenant shall have the
right to extend the term
of this Lease for the Option Periods from the date upon which the term
would otherwise expire upon the same terms and conditions as those herein
specified. If Tenant elects to exercise its option for any Option Period,
it shall, subject to the provisions of paragraph (B) of this Article, do
so by giving Landlord notice of such election at least 12 months before
the beginning of the Option Period for which the term hereof is to be
extended by the exercise of such option. If Tenant gives such notice, the
term of this Lease shall be automatically extended for the Option Period
covered by the option so exercised without execution of an extension or
renewal lease.
(B) It is the intention of Landlord and Tenant to avoid forfeiture of
Tenant's right to extend the term of this Lease under any of the
extension options set forth in paragraph (A) of this Article through
failure to give notice of exercise thereof within the time prescribed.
Accordingly, if Tenant shall fail to give notice of exercise of any such
option within the time prescribed in paragraph (A) of this Article, then
the time to give such notice shall be deemed extended for an additional
period commencing on the last day on which such notice by Tenant may be
timely given pursuant to paragraph (A) above and ending 10 business days
after the date Landlord gives Tenant notice of Tenant's failure to
exercise such option within the time prescribed. If Tenant exercises any
such option after the date prescribed in paragraph (A) above, but within
the extended time permitted above, the extended term to which such option
relates shall commence, or shall be deemed to have commenced, at the time
it would have commenced if such notice had been given within the time
prescribed in paragraph (A) above; otherwise, any period during which
Tenant remains in possession after the expiration of the term hereby
created, or as extended by the exercise of a previous option or options,
shall be subject to the provisions of the Article captioned "Continued
Possession of Tenant."
22. TENANT'S COVENANT TO OPERATE.
(A) Tenant will, except when prevented from so doing by Force Majeure or
by other causes beyond its reasonable control (including the unavailability
of film), during Tenant's Operating Period, continuously operate or cause to
be operated a first class (but not necessarily first run) multi-plex cinema
("Theater") in Tenant's Facility and utilizing at least 50% of the
auditoriums located therein for the showing of first run film product
(subject to the general availability of first run films in the marketplace)
(such covenant being herein called "TENANT'S OPERATING COVENANT"). In
accordance with the foregoing, Tenant agrees that at all times during the
continuance of Tenant's Operating Covenant, Tenant shall operate and
maintain the Theatre with due diligence and efficiency and in conformance
with Tenant's operation of its similar first-run Theaters in the Denver
metropolitan area, including observing substantially the same hours and days
of operation.
(B) Nothing contained in this Lease or in rules or regulations (if any)
promulgated by Landlord shall be deemed in any way to (i) regulate the
manner of operation by Tenant of its business in Tenant's Facility (other
than as required by Paragraph(Al), or (ii) require Tenant to operate all its
theatre auditoriums (but Tenant shall, subject to Force Majeure, operate at
least 12 auditoriums during the continuance of Tenant's Operating Covenant),
or (iii) give Landlord any right, express or implied, of censorship over any
attractions exhibited in Tenant's Facility or over the content of Tenant's
advertising.
(C) If Tenant shall breach the covenant to continuously operate set
forth in SECTION 1.6 of the MVC/AMC Deed, Tenant shall be responsible for
and shall timely pay the Two Hundred Fifty Thousand Dollar ($250,000.00)
liquidated damage
amount to which Mission Viejo Company may be entitled by reason thereof.
(D) Except as specifically provided in this Article, Tenant shall have
no obligation whatsoever, either express or implied, to at any time operate
or otherwise use Tenant's Facility.
23. ESTOPPEL CERTIFICATE: ATTORNMENT AND PRIORITY OF LEASE: SUBORDINATION.
(A) Each party agrees, within 20 days after request by the other party,
to execute, acknowledge and deliver to and in favor of the proposed holder
of any Mortgage or purchaser of the Leased Premises, any encumbrance holder
of Tenant or any proposed sublessee of Tenant or assignee of Tenant's
interest in this Lease, an estoppel certificate stating: (i) whether this
Lease is in full force and effect; (ii) whether this Lease has been modified
or amended and, if so, identifying and describing any such modification or
amendment; (iii) the date to which rent and any other charges have been
paid; (iv) whether such party knows of any default on the part of the other
party or has any claim against the other party and, if so, specifying the
nature of such default or claim; and (v) such other matters as may be
reasonably requested.
(B) Tenant shall, in the event any proceedings are brought for the
foreclosure of, or in the event of the exercise of the power of sale under,
any Mortgage prior in lien to this Lease made by Landlord, attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as
Landlord under this Lease, provided such purchaser assumes in writing
Landlord's obligations under this Lease accruing after the date of such
foreclosure or of sale, including unperformed obligations existing as of the
date such successor acquires title.
(C) Upon request of the holder of any Mortgage, Tenant will subordinate
its rights under this Lease to the lien thereof and to all advances made or
hereafter to be made upon the security thereof, and Tenant shall execute,
acknowledge and deliver an instrument effecting such subordination;
PROVIDED, HOWEVER, concurrently with the execution of this Lease (and as a
condition of any future subordination of this Lease), Landlord shall obtain
and deliver to Tenant an agreement, in recordable form, from the holder of
any Mortgage to which this Lease is subordinate containing a covenant
binding upon the holder thereof to the effect that so long as Tenant shall
not be in default under this Lease, or, if Tenant is in default hereunder,
so long as Tenant's time to cure such default has not expired, this Lease
shall not be terminated or modified in any respect whatsoever, nor shall the
rights of Tenant hereunder or its occupancy of the Leased Premises be
affected in any material way by reason of such Mortgage or any foreclosure
action or other proceeding that may be instituted in connection therewith,
and that Tenant shall not be named as a defendant in any such foreclosure
action or other proceeding unless required by applicable Laws, and in such
case, Landlord shall reimburse Tenant for its reasonable attorneys' fees to
defend such action.
(D) Without limiting the foregoing provisions of this Article, all
documents requested by either party in order to effectuate the provisions of
this Article shall be in form and substance reasonably satisfactory to the
other party to the extent not inconsistent with such provisions.
24. DEFAULT CLAUSE AND SELF-HELP.
(A) If Tenant neglects or fails to (i) pay any Annual Fixed Rent,
Annual Percentage Rent or other charge
hereunder within 7 days after notice of default, or (ii) perform or
observe any of the other covenants, terms, provisions or conditions on its
part to be performed or observed under this Lease within 30 days after
notice of default (or if more than 30 days shall be reasonably required
because of the nature of the default, if Tenant shall fail to commence to
cure within such 30-day period and thereafter proceed diligently to cure
such default), then Landlord may immediately or at any time thereafter, as
permitted by law, enter into and upon the Leased Premises and repossess
the same as of its former estate, without prejudice to any remedies which
Landlord might otherwise have for arrearages of rent or preceding breach
of covenant, and upon such entry, Tenant's right to possession of the
Leased Premises shall terminate or, at Landlord's election, this Lease
shall terminate. Tenant covenants and agrees, notwithstanding any entry or
re-entry by Landlord without terminating this Lease, to pay and be liable
for, on the days originally fixed herein for the payment thereof, amounts
equal to the several installments of Annual Fixed Rent and other charges
reserved as such amounts would, under the terms of this Lease, become due
if this Lease had not been terminated or if Landlord had not entered or
re-entered as aforesaid, and whether the Leased Premises are relet or
remain vacant in whole or in part for all or part of the remainder of the
term hereof; provided, that if Landlord relets the Leased Premises, Tenant
shall be entitled to a credit against future rent in the net amount of
rent received by Landlord from such reletting after deduction of the
reasonable and actual expenses of such reletting, including reasonable
renovations and alterations of the Leased Premises, reasonable attorneys'
fees and reasonable real estate commissions paid to unaffiliated third
parties. As an alternative, at the election of Landlord, Landlord shall
have the right, by notice to Tenant given within 30 days after any such
entry, to declare this Lease terminated and cancelled. In the event of
such Lease termination, Landlord shall be entitled to recover from Tenant
all of the following:
(i) The "worth at the time of the award" (defined below) of any unpaid
amount which has accrued prior to the date of termination; and
(ii) The "worth at the time of the award" of the amount by which the
unpaid Annual Fixed Rent and other charges which would have accrued after
termination until the date of the expiration of the Term exceeds the
amount of any sums which Landlord has (pr. Tenant proves that Landlord
could have) received in mitigation.
As used in this Paragraph (A), the term "worth at the time of the
award" shall be computed by allowing simple interest at an accrual rate
of eleven and twenty-five one hundredths percent (11.25%) per annum for
past due obligations, and a discount rate to net present value of eleven
and twenty-five one hundredths percent (11.25%) per annum on anticipated
future obligations, on the amount of the obligations payable on the date
of such calculation. In the event this Lease shall be terminated as
provided above, by summary proceedings or otherwise, Landlord, its
agents, servants or representatives may immediately or at any time
thereafter peaceably re-enter and resume possession of the Leased
Premises and remove all persons and property therefrom, by summary
dispossession proceedings. In all events, Landlord shall use reasonable
efforts to mitigate its loss or damages.
(B) Landlord may recover from Tenant, and Tenant shall pay to Landlord,
upon demand, such reasonable and actual expenses as Landlord may incur in
recovering possession of the Leased Premises, placing the same in good order
and condition and preparing the same for reletting, and all other reasonable
and actual expenses, commissions and charges incurred by Landlord in
exercising any remedy provided herein or as a result of any event of default
by Tenant hereunder (including without limitation, reasonable attorneys'
fees). The various rights and remedies reserved to Landlord herein are
cumulative and Landlord may pursue
any and all such rights and remedies whether at the same time or
otherwise.
(C) If Tenant shall fail to pay or perform any of Tenant's obligations
hereunder, and such failure is not rectified within the applicable grace
period set forth in this Lease, then Landlord shall have the right, but not
the obligation, in addition to any and all of the remedies which Landlord
may have at law or in equity, and without Landlord's actions being deemed an
election of remedies or a cure of Tenant's default, to pay or perform such
obligations and collect from Tenant Landlord's reasonable and actual costs
of performance, including any and all reasonable transaction costs and
reasonable attorneys' fees, plus interest at the Default Rate.
(D) Landlord shall have the right (without further consideration to
Tenant) to utilize the "Planning Materials" (as defined in the Contract) and
Tenant's plans and specifications for the Improvements for any purpose
relating to the construction, alteration or operation of the Leased
Premises.
25. ACCESS TO PREMISES.
Tenant shall permit Landlord and its authorized representatives,
Landlord's Mortgagee, prospective purchasers and (during the last year of
the term), prospective tenants to enter Tenant's Facility at all
reasonable times for the purposes of (i) serving or posting or keeping
posted thereon notices required or permitted by Law, (ii) conducting
periodic inspections, and (iii) performing any work thereon required to
be performed by Landlord pursuant to this Lease; PROVIDED, HOWEVER,
nothing set forth in this Lease shall be construed as authorizing
Landlord to enter the projection booths in Tenant's Facility without the
consent of Tenant (which consent shall not be unreasonably withheld),
except in the case of an emergency, when no consent shall be required.
26. FORCE MAJEURE.
Provided (i) the delayed party has kept the other party hereto
advised of the commencement of a delay and the cause thereof within
thirty (30) days after the commencement of the delay, and (ii) the
delayed party uses due diligence to effect the required performance, if
Landlord or Tenant shall be delayed or hindered in or prevented from the
performance of any act required under this Lease by reason of strikes,
lockouts, labor troubles, inability to procure materials, failure of
power, restrictive Laws (except as otherwise specifically provided
herein), riots, insurrection, war or other reason beyond the reasonable
control, and not the fault of the party delayed in performing the work or
doing the acts required under the terms of this Lease (collectively,
"Force Maieure"), then performance of such act shall be excused for the
period of the delay, and the period for the performance of any such act
shall be extended for a period equivalent to the period of such delay.
The provisions of this Article shall not (i) operate to excuse Tenant
from prompt payment of Annual Fixed Rent or any other payment required by
Tenant under the terms of this Lease, except to the extent that such
delays affect the Rent Commencement Date, or (ii) be applicable to delays
resulting from the inability of a party to obtain financing or to proceed
with its obligations under this Lease because of a lack of funds.
7. REMEDIES CUMULATIVE; LEGAL EXPENSES; TIME OF THE ESSENCE.
(A) The various rights and remedies given to or reserved to Landlord and
Tenant by this Lease or allowed by law
shall be cumulative, irrespective of whether so expressly stated.
(B) In case suit shall be brought because of the breach of any agreement
or obligation contained in this Lease on the part of Tenant or Landlord to
be kept or performed, and a breach shall be established, the prevailing
party shall be entitled to recover all expenses incurred in connection with
such suit, including reasonable attorneys' fees.
(C) Time is of the essence of this Lease.
28. LEASE NOT TO BE RECORDED.
The parties hereto shall promptly execute and deliver a memorandum of
this Lease substantially in the form attached hereto as EXHIBIT E for
recording purposes in recordable form. Landlord shall promptly cause the
same to be recorded, at Tenant's expense. Neither party shall record this
Lease without the consent of the other party.
29. NOTICES.
All notices, consents, requests; approvals and authorizations
(collectively, for purposes of this Paragraph, "NOTICES") required or
permitted hereunder shall only be effective if in writing. All Notices by
Landlord to Tenant shall be sent to Tenant by United States registered or
certified mail (return receipt requested), postage prepaid, or by Federal
Express, U. S. Post Office Express Mail, Airborne or similar overnight
courier which delivers only upon signed receipt of the addressee, in
duplicate, one copy to Tenant at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx
Xxxxxxx, XX 00000, attention of Lease Administrator, and the other copy,
to 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, marked
for the attention of Lease Administrator, and/or to such other addresses
as Tenant may later designate by Notice to Landlord. All Notices by
Tenant to Landlord shall be deemed to have been duly given if sent by
registered or certified mail (return receipt requested), postage prepaid,
or by Federal Express, U. S. Post Office Express Mail, Airborne or
similar overnight courier which delivers only upon signed receipt of the
addressee, in duplicate, one copy to Landlord at such party's address
first above written marked for the attention of President and the other
copy to MBK Mountain States, Ltd., 0000 Xxxxx Xxxxxxxx Xxx, Xxxxx 000,
Xxxxxxxxx, XX 00000, attention: President, or to such other address as
Landlord may later designate by Notice to Tenant. All Notices shall be
effective upon being deposited in the United States mail or delivered to
the overnight courier in the manner prescribed above. However, the time
period in which a response to any such Notice must be given shall
commence to run from the date of receipt by the addressee thereof as
shown on the return or courier receipt of the Notice. Rejection or other
refusal to accept or the inability to delivery because of changed address
of which no Notice was given shall be deemed to be receipt of the Notice
as of the date of such rejection, refusal or inability to deliver.
30. WAIVER OF PERFORMANCE AND DISPUTES.
(A) One or more waivers of any covenant, term or condition of this Lease
by either party shall not be construed as a waiver of a subsequent breach of
the same or any other covenant, term or condition, nor shall any delay or
omission by either party to seek a remedy for any breach of this Lease or to
exercise a right accruing to such party by reason of such breach be deemed a
waiver by such party of its remedies or rights with respect to such breach.
The consent or approval by either party to or of any act by the other party
requiring such consent or approval shall not be deemed to waive or render
unnecessary consent to or approval of any similar act.
(B) If at any time a dispute shall arise as to any amount or sum of
money to be paid by one party to the other party under the provisions hereof,
the party against whom the obligation to pay the money is asserted shall have
the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment and there shall survive the right on the part
of said party to institute suit for the recovery of such sum, and if it shall
be adjudged that there was no legal obligation on the part of said party to
pay such sum or any part thereof, said party shall be entitled to recover
such sum or so much thereof as it was not legally required to pay under the
provisions of this Lease, together with interest thereon at the Default Rate.
If at any time a dispute shall arise between the parties hereto as to any
work to be performed by either of them under the provisions hereof, the party
against whom the obligation to perform the work is asserted may perform such
work and pay the cost thereof "under protest" and the performance of such
work shall in no event be regarded as a voluntary performance and there shall
survive the right on the part of said party to institute suit for the
recovery of the cost of such work, and if it shall be adjudged that there was
no legal obligation on the part of said party to perform the same or any part
thereof, said party shall be entitled to recover the cost of such work or the
cost of so much thereof as said party was not legally required to perform
under the provisions of this Lease, together with interest thereon at the
Default Rate.
31. MODIFICATION OF LEASE.
The terms, covenants and conditions hereof may not be changed orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, modification or discharge is sought, or by such party's agent. The
failure of either party hereto to insist in any one or more cases upon the
strict performance of any term, covenant or condition of this Lease to be
performed or observed by the other party hereto shall not constitute a waiver or
relinquishment for the future of any such term, covenant or condition.
32. CAPTIONS AND LEASE PREPARATION.
Captions throughout this instrument are for convenience and reference only
and the words contained therein shall in no way be deemed to explain, modify,
amplify or aid in the interpretation or construction of the provisions of this
Lease. In any interpretation, construction or determination of the meaning of
any provision of this Lease, no presumption whatsoever shall arise from the fact
that the Lease was prepared by or on behalf of any party hereto.
33. LEASE BINDING ON HEIRS. ETC.
Except as herein otherwise expressly provided, all covenants, agreements,
provisions and conditions of this Lease shall be binding upon and inure to the
benefit of the parties hereto and their heirs, devisees, executors,
administrators, successors in interest and assigns as well as grantees of
Landlord, and shall be deemed to run with the land. Without limiting the
generality of
the foregoing, all rights of Tenant under this Lease may be granted by
Tenant to any sublessee of Tenant.
34. BROKERS.
Landlord represents and warrants to Tenant that it has not incurred or
caused to be incurred any liability for real estate brokerage commissions or
finder's fees in connection with the execution or consummation of this Lease.
Tenant represents and warrants to Landlord that it has not incurred or caused
to be incurred any liability for real estate brokerage commissions or
finder's fees in connection with the execution or consummation of this Lease
for which Landlord may be liable. Each of the parties agrees to indemnify and
hold the other harmless from and against any and all claims, liabilities or
expense (including reasonable attorneys' fees) in connection with any breach
of the foregoing representations and warranties.
35. TENANT'S REPRESENTATIONS AND WARRANTIES.
Tenant represents, warrants and covenants to Landlord that: (a) Tenant is
a duly constituted corporation organized under the laws of the State of
Missouri; (b) Tenant has the power to enter into this Lease and perform
Tenant's obligations hereunder; (c)the person(s) executing this Lease on
Tenant's behalf has the right and lawful authority to do so; (d) Tenant has
delivered to Landlord corporate resolutions to the effect of the foregoing;
and (e) Tenant is qualified to do business in the State of Colorado.
36. INTEREST ON PAST DUE OBLIGATIONS: LATE CHARGES.
Except where another rate of interest is specifically provided for in
this Lease, any amount due from either party to the other under this Lease
which is not paid within 7 days after notice of delinquency shall bear
interest at the Default Rate from the date such payment was originally due to
and including the date of payment. In addition, Tenant acknowledges that the
late payment of any installment of Annual Fixed Rent, Percentage Rental or
any other amounts due Landlord will cause Landlord to incur certain costs and
expenses, the exact amount of which are extremely difficult or impractical to
fix. These costs and expenses may include, without limitation, administrative
and collection costs and processing and account expenses. Therefore, if any
installment of Annual Fixed Rent, Percentage Rent or other amount due
Landlord is not received by Landlord from Tenant within 7 days after notice
of delinquency. Tenant shall immediately pay to Landlord a late charge equal
to the lesser of (i) 4% of such delinquent amount, or (ii) $500. Landlord and
Tenant agree that this late charge represents a reasonable estimate of the
costs and expenses Landlord will incur and is fair compensation to Landlord
for its loss suffered by reason of late payment by Tenant. Upon accrual, all
such late charges shall be deemed additional rental.
37. PERSONAL PROPERTY AND OTHER TAXES.
Tenant shall pay, prior to delinquency, all taxes, assessments, license
fees and public charges levied, assessed or imposed upon Tenant's business
operation and Tenant's Property.
38. EXCULPATION OF LANDLORD.
Landlord shall not have any personal liability under this Lease or
arising out of the relationship of the parties created hereby resulting from
the breach or default by Landlord of any term or provision of this Lease, and
Tenant agrees to look solely to the rents, income and profits actually
received by Landlord from the operation of the Leased Premises and to the
equity then owned by Landlord in the Leased Premises. Any judgment rendered
against Landlord shall be satisfied solely out of the rents, income and
profits actually received by Landlord from the Leased Premises and from the
proceeds of sale of Landlord's interest in the Leased Premises which has been
received by Landlord. These provisions shall inure to the benefit of
Landlord's successors and assigns and shall survive the expiration or earlier
termination of this Lease. The foregoing provisions of this Article shall
not, however, be construed to relieve Landlord of personal liability for
payment to Tenant of the Construction Allowance.
39. WAIVER OF TRIAL BY JURY.
TENANT AND LANDLORD HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER IN
ANY MATTERS ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE RELATIONSHIP
OF LANDLORD AND TENANT, TENANT'S USE AND OCCUPANCY OF TENANT'S FACILITY OR
THE ENTIRE PREMISES, AND ANY CLAIM OF INJURY OR DAMAGE.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed as of the day and year first above written.
MBK SOUTHERN CALIFORNIA/MBK MOUNTAIN STATES VENTURES, a
California joint venture
By: MBK SOUTHERN CALIFORNIA, LTD., a California limited
partnership, general partner
By: MBK SOUTHERN CALIFORNIA, INC., a California
corporation, sole general partner
By: MBK MOUNTAIN STATES, LTD., A CALIFORNIA LIMITED
PARTNERSHIP, general partner
By: MBK MOUNTAIN STATES, INC., a California corporation,
sole general partner
"Landlord"
AMERICAN MULTI-CINEMA, INC.
Xxxxxx X. Xxxxxxxxx, President
"Tenant"
RENT AND EXPENSE RIDER
Attached to and forming a part of Lease dated as
of MARCH 26, 1997, by and between
MBK SOUTHERN CALIFORNIA/MBK MOUNTAIN STATES VENTURES, as Landlord,
and AMERICAN MULTI-CINEMA, INC., as Tenant,
covering premises situated in
HIGHLANDS RANCH. COLORADO
SECTION 1. RENT.
(A) ANNUAL FIXED RENT. Tenant shall pay Landlord, during the term of this
Lease, the Annual Fixed Rent in the manner hereinafter provided. The Annual
Fixed Rent for each Lease Year shall be payable in equal monthly installments
on or before the first day of each calendar month in advance during such
Lease Year without prior demand and without offset or deduction, except as
specifically permitted by SECTION 11(A) of EXHIBIT C. If the Annual Fixed
Rent is payable for a fraction of a month, the amount payable shall be a pro
rata share of a full month's rent. The Annual Fixed Rent shall be prorated
for any partial Lease Year. If Tenant breaches its obligation to initially
open for business, as required by SECTION 20, the Annual Fixed Rent is
subject to the increase therein specified.
(B) PERCENTAGE RENT.
(1) In addition to the Annual Fixed Rent, Tenant shall pay Landlord as
percentage rent (the "ANNUAL PERCENTAGE RENT") an amount for each Lease Year
equal to the Percentage Rate of the Gross Receipts for such Lease Year in
excess of an amount ("BASE AMOUNT") equal to the quotient obtained by
dividing the Annual Fixed Rent payable for such Lease Year by the Percentage
Rate. For the purpose of computing the Annual Percentage Rent for the first
Lease Year, the Gross Receipts for and the Annual Fixed Rent payable for the
partial calendar month, if any, preceding the first Lease Year shall be
included in the Annual Fixed Rent and Gross Receipts for the first Lease
Year. Within 60 days following the end of each Lease Year, Tenant shall
furnish Landlord with a statement, verified by a corporate officer of Tenant,
showing the amount of Gross Receipts for the preceding Lease Year, which
statement shall be accompanied by Tenant's payment of Annual Percentage Rent,
if any is due.
(2) The term "LEASE YEAR" as used in this Lease shall mean a period of 12
full calendar months. The first Lease Year shall begin on the first day of
the calendar month following the Rent Commencement Date, unless the initial
term commences on the first day of a calendar month, in which case the first
Lease Year shall begin on the Rent Commencement Date. Each succeeding Lease
Year shall commence on the anniversary of the first Lease Year; however, the
last Lease Year may be longer than 12 months, as contemplated by SECTION 4 of
the Lease.
(3) Landlord shall have the right, not more often than once each year, to
audit Tenant's records of Gross Receipts, but only for the purpose of
ascertaining the amount of the Gross Receipts during the preceding Lease
Year. Such audit shall be made on behalf of Landlord by a certified public
accountant to be selected by Landlord. If Landlord wishes to audit Tenant's
records for any Lease Year, Landlord shall notify Tenant and proceed with
such audit within 24 months after the end of the Lease Year in question.
Should Landlord fail to exercise the right to audit the records of Tenant
within 24 months after the end of any Lease Year, then Landlord shall have no
further right to audit the records of Tenant for such Lease Year, and
Tenant's statement of Gross Receipts for such Lease Year shall conclusively
be deemed to be correct. Any such audit by Landlord shall be at Landlord's
own expense, except as hereinafter provided. If any such audit discloses that
Tenant has understated the Gross Receipts for such Lease Year by more than
3%, then Tenant shall promptly pay to Landlord the cost of such audit. Tenant
shall, in any event, pay Landlord the amount of any deficiency in Annual
Percentage Rent. Any information obtained by Landlord from such statements or
inspections shall be kept confidential and shall not be disclosed except as
provided in subparagraph (11) of this paragraph (B).
(4) The term "GROSS RECEIPTS" as used in this Lease shall mean the
receipts from the sale of theatre admission tickets and the price of all
merchandise or services sold or rented from the Leased Premises by Tenant or
Tenant's affiliates or Tenant's subtenants, licensees and concessionaires,
whether for cash or credit during each Lease Year; provided, however, there
shall be deducted from such receipts in the computation of Gross Receipts to
the extent the same are included in Tenant's computations:
(a) Credits or refunds made to customers.
(b) (i) All federal, state, county and city sales taxes or other similar
taxes, and (ii) all occupational taxes, use taxes and other taxes which must
be paid by Tenant or collected by Tenant, by whatever name they are known or
assessed, and regardless of whether or not they are imposed under any
existing or future orders, regulations, laws or ordinances.
(c) Agency commissions paid to independent third parties for selling
tickets, and surcharges to the extent in excess of the standard posted
ticket price for tickets purchased by use of credit cards.
(d) Proceeds from the sale of Tenant's Property.
(e) Proceeds from advertising revenue generated by on-screen slide
advertisements, such as the
National Cinema Network, except to the extent such proceeds are retained
by Tenant.
(5) Should Tenant rent one or more theatres for special events such
as a rally, fashion show, speech or the like, the Gross Receipts shall be
deemed the rental received by Tenant and shall not include monies, if any,
received by the sponsor of the event.
(6) For the purposes of computing and reporting Gross Receipts with
respect to "four-wall deals" as permitted by the Article captioned
"Subletting and Assigning," Tenant shall have the right to report as Gross
Receipts only the actual payments received by Tenant in connection with such
use.
(7) For the purposes of computing and reporting Gross Receipts with
respect to electronic games and other amusement devices operated in Tenant's
Facility, Tenant shall have the right to (a) report as Gross Receipts only
the actual payments received by Tenant in connection therewith, and (b)
exclude from Gross Receipts all receipts of any independent concessionaire,
licensee or other third party or parties in connection therewith, to the
extent not paid to Tenant by any such parties.
(8) (a) If Tenant, in accordance with the provisions of
paragraph (B) of the Article captioned "Use of Premises," uses Tenant's
Facility for purposes other than the uses set forth in paragraph (A) of
said Article ("INITIAL USE"), then during the period of such other
uses(s) ("OTHER USE(S)"), Tenant shall pay as Percentage Rent, in lieu
of the amount set forth in subparagraph (1) of this paragraph (B), an
amount for each Lease Year equal to the amount, if any, by which the
"Applicable Percentage Rate" of Gross Receipts in each such Lease Year
exceeds the Annual Fixed Rent payable by Tenant for such Lease Year.
The term "APPLICABLE PERCENTAGE RATE" shall mean the percentage rate
specified as the median rate for such use, as published in the Urban
Land Institute publication, "DOLLARS AND CENTS OF SHOPPING CENTERS."
(b) During the period of use of Tenant's Facility for the
Other Use(s), Gross Receipts shall be defined as follows (in lieu of
the definition thereof in subparagraphs (4) through (7) of this
paragraph (B)):
The term "GROSS RECEIPTS" shall mean: (i) the entire
amount of the price charged, whether wholly or partially in cash or
on credit, or otherwise, for all goods, wares, merchandise and
chattels of any kind sold, leased, licensed or delivered, and all
charges for services sold or performed in, at, upon or from any
part of or through the use of Tenant's Facility or the Leased
Premises or any part thereof by Tenant and any other party, or by
means of any mechanical or other vending device (other than pay
telephones and those soft drink and other similar vending devices
operated primarily for the convenience of Tenant's employees); and
(ii) all gross income of Tenant and any other party from any
operations in, at, upon or from the Tenant's Facility which are
neither included in nor excluded from Gross Receipts by other
provisions of this Lease, but without any duplication.
Gross Receipts shall not include, or if
included, there shall be deducted (but only to the extent they
have been included), as the case may be, (i) the net amount of
cash or credit refunds made upon Gross Receipts, where the
merchandise sold or some part of it is returned by the purchaser
to and accepted by Tenant (but not exceeding in any instance the
selling price of the item in question); (ii) the amount of any
sales tax, use tax or retail excise tax which is imposed by any
duly constituted governmental authority directly on sales and
which is both added to the selling price (or absorbed therein) and
is paid to the taxing authority by Tenant (but not any vendor of
Tenant); (iii) exchanges of' merchandise between Tenant's Facility
and other stores of Tenant or its affiliates to the extent the
same are made solely for the convenient operation of Tenant's
business and not for the purpose of depriving Landlord of the
benefit of Gross Receipts; (iv) returns of merchandise to
shippers, suppliers or manufacturers; (v) the sale of Tenant's
Property; (vi) discount sales to employees and agents of Tenant of
merchandise not intended for resale; and (vii) separately stated
interest and service charges.
(c) During any Lease Year in which Tenant's Facility is used in
part for the Initial Use and in part for Other Use(s); Tenant shall pay
as Percentage Rent the sum of (i) the amount, if any, by which the
Percentage Rate of Gross Receipts during the portion of such Lease Year
that Tenant's Facility is used for the Initial Use ("INITIAL USE
PERIOD") exceeds the Annual Fixed Rent payable during the Initial Use
Period, plus (ii) the amount, if any, by which the Percentage Rate of
Gross Receipts during the portion of such Lease Year that Tenant's
Facility is used for purposes other than the Initial Use ("OTHER USE
PERIOD") exceeds an amount equal to the Annual Fixed Rent payable for
the Other Use Period.
(d) If the use of Tenant's Facility shall be changed from one
Other Use to another Other Use during any Lease Year or shall otherwise
be used for more than one Other Use during any Lease Year, Tenant shall
pay as Percentage Rent the amount, if any, by which the Applicable
Percentage Rate in respect of each such Other Use of the separate Gross
Receipts received in such Lease Year attributable to each such Other
Use exceeds the Annual Fixed Rent payable for such Lease Year.
(e) The foregoing provisions of this subparagraph (8) shall
prevail over any conflicting provisions in this paragraph (B) and shall
apply only when Tenant uses Tenant's Facility primarily for uses other than
those set forth in paragraph (A) of the article captioned "Use of Premises".
(9) Nothing set forth in this Lease shall be construed as giving
Landlord any partnership or other interest in Tenant's business.
(10) It is understood and agreed by Landlord that Tenant has made no
representation of any kind whatsoever as to the minimum or maximum amount of
Gross Receipts which may or shall be made in the Leased Premises during any
Lease Year of the term of this Lease.
(11) Landlord agrees not to divulge to any party the amount of Gross
Receipts made by Tenant in the Leased Premises, except to the taxing
authorities with authority to inquire therein, or to an existing or bona fide
prospective mortgagee or
bona fide prospective purchaser of the Entire Premises or in connection with
litigation or arbitration between Landlord and Tenant.
SECTION 2. TENANT'S REAL ESTATE TAXES.
(A) As used in this Article, the following terms shall have the
following meanings:
(1) "FISCAL TAX YEAR" shall mean the 12-month period established
as the real estate tax year by the taxing authority having jurisdiction over
the Leased Premises.
(2) "TAXES" shall mean all real estate taxes and assessments
(both general and special), improvement bonds, surcharges, rent taxes,
services charges, fees and other charges and assessments, including, but not
limited to, school fees, transportation fees, parking fees, license fees,
impact fees, and other similar state, county or local fees levied by any
Governmental Authorities that are levied, assessed or imposed by any
Governmental Authority with respect to the Leased Premises; excluding,
however, income, franchise, corporate, personal property, capital levy,
capital stock, excess profits, transfer, revenue, estate, inheritance, gift,
devolution or succession tax payable by Landlord.
(B) During the term of this Lease (including the preliminary term),
Tenant shall pay the Taxes directly to the appropriate taxing authorities at
least 10 days prior to delinquency, and shall provide Landlord with evidence
of payment from time to time within 30 days after Landlord's request.
Tenant's obligation hereunder shall be prorated with respect to the last
Lease Year of the term.
(C) Tenant shall have the right (but shall not be obligated) to
contest the Taxes or the validity thereof by appropriate legal proceedings or
in such other manner as it shall deem suitable, and, subject to Tenant
indemnifying and holding Landlord harmless in connection therewith, Landlord
shall join in such contest, protest or proceeding, but at Tenant's sole cost
and expense. Tenant shall give Landlord notice prior to commencing any such
contest. Landlord shall not, during the pendency of such legal or other
proceeding or contest, pay or discharge any Taxes on the Leased Premises, or
tax lien or tax title pertaining thereto, provided Tenant shall discharge
such Taxes if required to do so by Landlord, if in Landlord's reasonable
judgment it is necessary to do so in order to stay a tax sale of the Leased
Premises and Tenant shall pay any interest or penalties incurred in
connection therewith. Any refund obtained by Tenant shall be paid first to
Tenant to the extent of its costs and expenses of such contest and then to
Landlord on account of any portion of the Taxes so refunded which was
previously paid by Landlord, and the balance to Tenant.
SECTION 3. PERMITTED EXCEPTIONS.
During the Term of this Lease (including the preliminary term), Tenant
shall timely pay all fees and assessments payable pursuant to the Permitted
Exceptions with respect to the Leased Premises.
SECTION 4. ADDRESS FOR PAYMENT.
Until Tenant receives other instructions in writing from Landlord,
Tenant shall pay all rents and other charges under this Lease by check to the
order of Landlord, at its address first written in this Lease.
Initialled by:
Landlord
Tenant
EXHIBIT E
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made as of this 26th day of March, 1997, by and
between MBK SOUTHERN CALIFORNIA/MBK MOUNTAIN STATES VENTURES, a California
general partnership, with an office at 000 Xxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxx 00000, ("Landlord"), and AMERICAN MULTI-CINEMA, INC., a Missouri
corporation, with an office at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx,
Xxxxxxxx 641 OS ("Tenant").
By Lease of even date herewith (the "Lease"), Landlord has leased to
Tenant, and Tenant has rented from Landlord, and Landlord hereby leases to
Tenant, and Tenant hereby rents from Landlord, that certain real property
described on the attached EXHIBIT A (the "DEMISED LAND"), together with the
improvements from time to time located thereon, and all appurtenances,
rights, easements and privileges thereunto belonging or in any way
appertaining.
The term of the Lease is 20 years, beginning on the "Rent Commencement
Date" (as defined in the Lease). Tenant has the option to extend the term of
the Lease for 6 successive separate periods of 5 years each.
The parties are executing this Memorandum of Lease for the purpose of
imparting notice to third parties of the terms and provisions of the Lease.
In the event of any inconsistency between the terms of this Memorandum of
Lease and the terms of the Lease, the terms of the Lease shall control.
This document may be executed on separate counterparts.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease
effective as of the date first above written.
MBK SOUTHERN CALIFORNIA/MBK MOUNTAIN STATES VENTURES, a
California joint venture
By: MBK SOUTHERN CALIFORNIA, LTD., a California limited
partnership, general partner
By: MBK SOUTHERN CALIFORNIA, INC., a
California corporation, sole general partner
By: MBK MOUNTAIN STATES, LTD., a California limited
partnership, general partner
By: MBK MOUNTAIN STATES, INC., a California
corporation, sole general partner
"Landlord"
AMERICAN MULTI-CINEMA, INC.
Xxxxxx X. Xxxxxxxxx, President
"Tenant"
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
XXXXX XXXXXXX, ESQ.
EXCEL REALTY TRUST, INC.
000 XXXX 000 XXXXX
XXXXX 000
XXXXX XXXXX, XXXX 00000
ASSIGNMENT AND ASSUMPTION OF AMC LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASES ("Assignment") is made as of the
31 day of December, 1997, by and between MBK SOUTHERN CALlFORNIA/MBK
MOUNTAIN STATES VENTURES, a California general partnership (~Assignor") and
EXCEL LEGACY CORPORATION, a Delaware corporation ("Assignee").
WITNESSETH;
WHEREAS, ASSIGNOR AND ASSIGNEE HAVE ENTERED INTO THAT CERTAIN PURCHASE
AND SALE AGREEMENT AND ESCROW INSTRUCTIONS DATED DECEMBER 22, 1997, AS
AMENDED BY THAT CERTAIN FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND
ESCROW INSTRUCTIONS, DATED AS OF DECEMBER 22, 1997, AND THAT CERTAIN SECOND
AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS, DATED AS OF
12/31/97, (AS AMENDED, THE "AGREEMENT"), FOR THE PURCHASE AND SALE OF CERTAIN
REAL PROPERTY LOCATED IN HIGHLANDS RANCH, COUNTY OF XXXXXXX, STALE OF
COLORADO, IN A COMMERCIAL CENTER COMMONLY KNOWN AS HIGHLANDS RANCH. THE LEGAL
DESCRIPTION OF THE REAL PROPERTY IS SET FORTH ON EXHIBIT "A" ATTACHED HERETO
("REAL PROPERTY"). UNLESS OTHERWISE EXPRESSLY DEFINED HEREIN, CAPITALIZED
TERMS USED HEREIN WITHOUT DEFINITION SHALL HAVE THE SAME MEANING ASCRIBED TO
SUCH TERMS IN THE AGREEMENT.
WHEREAS, THIS ASSIGNMENT IS BEING MADE PURSUANT TO THE AGREEMENT FOR THE
PURPOSE OF ASSIGNING TO ASSIGNEE ALL OF ASSIGNOR'S RIGHT, TITLE AND INTEREST
IN AND TO THAT CERTAIN LEASE BY AND BETWEEN ASSIGNOR AND AMERICAN
MULTI-CINEMA, INC., A MISSOURI CORPORATION ("AMC"), DATED MARCH 26, 1997, AS
MORE FULLY DESCRIBED IN THAT CERTAIN MEMORANDUM OF LEASE, RECORDED ON APRIL
3, 1997, IN THE OFFICIAL RECORDS OF XXXXXXX COUNTY, COLORADO, BOOK 1420 AT
PAGE 1427 ("LAMC LEASE"), TOGETHER WITH THAT CERTAIN GUARANTY MADE BY AMC
ENTERTAINMENT, INC., A DELAWARE CORPORATION, DATED MARCH 26, 1997 ("AMC
GUARANTY").
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS
FOLLOWS:
1. ASSIGNMENT OF AMC LEASE AND AMC GUARANTY. ASSIGNOR HEREBY GRANTS,
ASSIGNS, TRANSFERS, CONVEYS AND DELIVERS TO ASSIGNEE THE AMC LEASE AND THE
AMC GUARANTY AND ALL OF THE RIGHT, TITLE, ESTATE, INTEREST, BENEFITS AND
PRIVILEGES OF ASSIGNOR THEREUNDER, AND ASSIGNEE HEREBY ACCEPT SUCH
ASSIGNMENT, PERFORM AND TO BE BOUND BY ALL OF THE TERMS, COVENANTS, CONDITIONS
AND OBLIGATIONS IMPOSED UPON ASSIGNOR AS THE "LANDLORD" UND"~R THE AMC LEASE
ACCRUING AN OR AFTER THE DATE OF THIS ASSIGNMENT.
3. INDEMNIFICATION. ASSIGNOR HEREBY AGREES TO INDEMNIFY, DEFEND AND
HOLD HARMLESS ASSIGNEE, AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES
AND AGENTS, FROM, OF AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES,
LOSSES, DAMAGES, COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE
ATTORNEYS' FEES) ARISING OUT OF OR RELATING TO THE BREACH BY ASSIGNOR OF ANY
OF THE OBLIGATIONS, TERMS AND/OR COVENANTS OF ASSIGNOR AS THE "LANDLORD"
UNDER OR PURSUANT TO THE AMC LEASE, WHICH OBLIGATIONS, TERMS AND/OR COVENANTS
ACCRUE PRIOR TO THE DATE HEREOF.
4. SUCCESSORS AND ASSIGNS. THIS ASSIGNMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF
THE SUCCESSORS, ASSIGNS, PERSONAL REPRESENTATIVES, HEIRS AND LEGATEES OF THE
RESPECTIVE PARTIES HERETO.
5. ATTORNEYS' FEES. IN THE EVENT OF THE BRINGING OF ANY ACTION OR SUIT
BY A PARTY THERETO AGAINST ANY OTHER PARTY HEREUNDER BY REASON OF ANY BREACH
OF ANY OF THE COVENANTS, CONDITIONS, AGREEMENTS OR PROVISIONS ON THE PART OF
THE OTHER PARTY ARISING OUT OF THIS ASSIGNMENT, THEN IN THAT EVENT THE
PREVAILING PARTY SHALL BE ENTITLED TO HAVE AND RECOVER OF AND FROM THE OTHER
PARTY ALL COSTS AND EXPENSES OF THE ACTION OR SUIT, INCLUDING REASONABLE
ATTORNEYS' FEES AND COSTS.
6. GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY, INTERPRETED
UNDER, AND CONSTRUED AND ENFORCEABLE WITH, THE LAWS OF THE STATE OF
CALIFORNIA, THE APPROPRIATE VENUE FOR ANY ACTION (WHETHER A GENERAL
ENFORCEMENT ACTION OR PROPERTY SPECIFIC ACTION), SHALL BE CALIFORNIA, AND
EACH PARTY CONSENTS TO THE JURISDICTION OF CALIFORNIA'S STATE AND FEDERAL
COURTS.
7. COUNTERPARTS. THIS ASSIGNMENT MAY BE EXECUTED IN MULTIPLE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH
TOGETHER CONSTITUTE ONE AND THE SAME INSTRUMENT.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS ASSIGNMENT AS
OF THE DATE FIRST ABOVE WRITTEN,
ASSIGNOR:
MBK SOUTHERN CALIFORNIA, LTD./MBK MOUNTAIN
STATES VENTURES, A California general partnership
By: MBK SOUTHERN CALIFORNIA LTD.,
a California limited partnership
By: MBK(SOUTHERN CALIFORNIA, INC.,
a California corporation, sole general partner
Xxxxxxx X. Xxxx, President
BY: MBK MOUNTAIN STATES LTD.,
a California general partnership
By: MBK MOUNTAIN STATES, INC., a
California corporation sole general partner
By: Xxxxxxx X. Xxxx, Chairman of the Board
ASSIGNEE:
EXCEL LEGACY CORPORATION,
a Delaware corporation
BY: XXXX X. XXXXXX, SENIOR VICE PRESIDENT
ACKNOWLEDGMENT
STATE OF UTAH
COUNTY OF XXXXX
On December 29,1997, before me, the undersigned, a Notary Public In and for
said County and State, personally appeared Xxxx X. Xxxxxx, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument, and acknowledged to
me that he executed the same in his authorized capacity and that, by his
signature on the instrument, the person, or the entity upon behalf of which
the person acted, executed the within instrument.
WITNESS my hand and official seal.
XXXXXXXXX X. XXXXX
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On December 28, 1997, before me, the undersigned, a notary public,
personally appeared XXXXXXX X. XXXX, to me known to be the person who
executed the foregoing instrument, and who, being duly sworn by me, did
depose and say that he is President of MBK Southern California, a California
corporation, sole general partner of MBK Southern California, Ltd., a
California limited partnership, general partner of MBK Southern
California/MBK Mountain States Ventures, a California general partnership,
and that he executed the foregoing instrument on behalf said corporation, and
such person duly acknowledged the execution of the same to be the act and
deed of said corporation.
WITNESS my hand and official seal.
XXXXXXXX X. XXXXXX
Notary Public
My Commission Expires: 5/16/99
ACKNOWLEDGMENT
--------------
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On December 28, 1997, before me, the undersigned, a notary public,
personally appeared XXXXXXX X. XXXX, to me known to be the person who
executed the foregoing instrument, and who, being duly sworn by me, did
depose and say that he is Chairman of MBK Mountain States, Inc., a California
corporation, sole general partner of MBK Mountain States, Ltd., a California
limited partnership, general partner of MBK Southern California/MBK Mountain
States Ventures, a California general partnership, and that he executed the
foregoing instrument on behalf said corporation, and such person duly
acknowledged the execution of the same to be the act and deed of said
corporation.
WITNESS my hand and official seal.
XXXXXXXX X. XXXXXX
Notary Public
My Commission Expires: 5/16/99
LEGAL DESCRIPTION OF THE LAND
EXHIBIT A
