EXHIBIT 10.21
GROUND LEASE
between
RENAISSANCE ENTERTAINMENT CORPORATION,
a Colorado corporation
as Tenant,
and
TKG NUT TREE, LLC,
a California limited liability company
as Landlord
Dated as of
May ___, 2000
GROUND LEASE
BASIC LEASE INFORMATION
This Basic Lease Information shall be completed and signed when all
applicable information has been set forth below.
DATE OF LEASE: As of May ___, 2000
PREMISES: Approximately ___ acres located at the old Nut Tree
Restaurant site in Vacaville, California
LANDLORD: TKG NUT TREE, LLC,
a California limited liability company
TENANT: RENAISSANCE ENTERTAINMENT CORPORATION,
a Colorado corporation
LEASE
COMMENCEMENT DATE: June 1, 2000
LEASE
EXPIRATION DATE: November 15, 2000
MINIMUM RENT: $310,000
LIABILITY COVERAGE: Commercial general liability with limits of
$1,000,000 per occurrence and $2,000,000 in the
aggregate, with umbrella coverage of $4,000,000
USE: To produce and operate the Renaissance Faire and
associated educational programs.
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EXHIBITS
Exhibit A Land Area Plan
TENANT: RENAISSANCE ENTERTAINMENT CORPORATION,
A COLORADO CORPORATION
By: ________________________________
Name: _______________________
Its: _______________________
Dated: _____________________________
Address: 000 Xxxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LANDLORD: TKG NUT TREE, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
By: TKG Monte Vista, LLC,
a California limited liability company,
Its Manager
By: _______________________________
Xxxxxx X. Xxxxxxxx
Its: Manager
Dated: ________________________
Address: 00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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TABLE OF CONTENTS
PARAGRAPH PAGE
--------- ----
1. Definitions
2. Term
3. Rent
4. Taxes
5. Use
6. Abandonment
7. Services and Utilities
8. Alterations and Improvements
9. Liens
10. Repair and Maintenance of the Premises
11. Destruction or Damage
12. Release and Indemnification
13. Insurance
14. Compliance with Legal Requirements
15. Assignment and Subletting
16. Inspections
17. Default
18. Remedies Upon Default
19. Landlord's Right to Cure Default
20. Attorneys' Fees
21. Intentionally Deleted
22. Intentionally Deleted
23. No Merger
24. Intentionally Deleted
25. Intentionally Deleted
26. Holding Over
27. Mortgagee Protection
28. Limitation of Recovery Against Landlord
29. No Partnership
30. Waiver
31. Notices and Consents
32. Complete Agreement
33. Authority
34. Miscellaneous
35. Broker's Commissions
36. Effectiveness of Lease
37. Exhibits
38. Basic Lease Information
39. Financial Information
40. Landlord's Default
41. No Construction Against Preparer
42. Force Majeure
43. Confidentiality
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GROUND LEASE
This Ground Lease (this "LEASE"), dated as of May ___, 2000, for
purposes of reference only, is made and entered into by and between TKG NUT
TREE, LLC, a California limited liability company ("LANDLORD"), and RENAISSANCE
ENTERTAINMENT CORPORATION, a Colorado corporation ("TENANT").
Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises subject to the terms, covenants, agreements and
conditions set forth in this Lease.
1. DEFINITIONS. Unless the context otherwise specifies or
requires, the following terms shall have the meanings specified below:
(a) "BUILDING" or "BUILDINGS" means all structures now
existing or hereafter constructed on the Premises.
(b) "LANDLORD PARTY" or "LANDLORD PARTIES" means
Landlord, its members and managers (including, without limitation, TKG Monte
Vista, LLC, a California limited liability company, Masson Land, a California
general partnership, Nut Tree, a California limited partnership, TKG Coffee Tree
Two, LLC, a California limited liability company), and each of their respective
partners, members, managers, officers, directors, shareholders, employees,
beneficiaries, trustees, agents and attorneys (including, without limitation,
The Kivelstadt Group), and each of their respective successors and assigns.
(c) "PREMISES" shall mean the property depicted on the
Land Area Plan attached hereto as EXHIBIT A, including all Buildings and other
improvements located on such property. The Premises specifically excludes those
portions indicated on the Land Area Plan as Protected Areas, and under no
circumstances does Tenant have the right to enter, occupy, alter or otherwise
use the Protected Areas.
(d) "RENAISSANCE FAIRE" is defined in Paragraph 5(a)
below.
(e) "RENT" or "RENT" shall mean the total of Minimum Rent
(as defined in Paragraph 3(a) below), Additional Rent (as defined in Paragraph
3(c) below), the Late Charges (as defined in Paragraph 3(d) below), interest on
unpaid Rent (as defined in Paragraph 3(e) below) and all other monetary sums
owing by Tenant under this Lease.
2. TERM. The term of this Lease ("TERM") shall commence on June
1, 2000 (the "LEASE COMMENCEMENT DATE") and, unless sooner terminated or
extended as provided in this Lease, shall terminate on November 15, 2000 (the
"LEASE EXPIRATION DATE").
3. RENT. Tenant shall pay to Landlord throughout the Term as
rental for the use and occupancy of the Premises, at the times and in the manner
provided in this Lease, the following amounts:
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(a) MINIMUM RENT. Tenant shall pay to Landlord the minimum
rent of $310,000 ("MINIMUM RENT"), payable as follows. Tenant shall pay $50,000
on the Lease Commencement Date, $86,667 on August 15, 2000, $86,667 on September
15, 2000, and $86,666 on October 15, 2000.
(b) AMOUNTS DUE UNDER PRIOR LEASE. Tenant is currently
occupying the Premises under a Ground Lease dated as of June 14, 1999, as
amended by a First Amendment to Ground Lease dated as of August 30, 1999 and a
Second Amendment to Ground Lease dated as of November 15, 1999 (collectively,
the "Prior Lease"). By no later than the Lease Commencement Date and as a
condition to the effectiveness of this Lease, Tenant shall pay to Landlord
$12,000 that is due by Tenant under the Ground Lease.
(c) ADDITIONAL RENT. Tenant shall pay, as additional rent
("ADDITIONAL RENT"), all sums of money or charges required to be paid by Tenant
under this Lease in addition to Minimum Rent and late charges, whether or not
designated as "Additional Rent". If such amounts or charges are not paid at the
time provided in this Lease, they shall nevertheless be collectible as
Additional Rent with the next installment of Minimum Rent thereafter due, but
nothing contained in this Lease shall be deemed to suspend or delay the payment
of any amount of money or charge at the time the same becomes due and payable
under this Lease, or limit any other remedy of Landlord.
(d) LATE CHARGES. Tenant recognizes that late payment of any
Rent will result in extra administrative expense to Landlord and Landlord's
inability to meet its financial commitments. The extent of this additional
expense and other damage to Landlord is extremely difficult and economically
impractical to ascertain. Tenant therefore agrees that if any Rent remains
unpaid three (3) days after Landlord has provided written notice to Tenant that
the same is due, the amount of such unpaid Rent shall be increased by a late
charge to be paid to Landlord by Tenant in an amount equal to fifteen percent
(15%) of the amount of the amount due. The amount of the late charge to be paid
to Landlord by Tenant on any unpaid Rent shall be reassessed and added to
Tenant's obligations for each successive monthly period accruing after the date
on which the late charge is initially imposed. Tenant agrees that such amount is
a reasonable estimate of the loss and expense to be suffered by Landlord as a
result of such late payment by Tenant and may be charged by Landlord to defray
such loss and expense. If the amount of any late charges due hereunder exceed
the amounts allowed by law, then such late charges shall be reduced to the
maximum allowed by law. The provisions of this Paragraph 3(d) shall not be
construed to grant Tenant a grace period and shall in no way relieve Tenant of
the obligation to pay any amount of Rent on or before the date on which it
becomes due, nor do the terms of this Paragraph in any way affect Landlord's
remedies pursuant to Paragraph 18 if any Rent is unpaid after the date due.
(e) INTEREST ON UNPAID RENT. Minimum Rent, Additional Rent or
any other charges not paid within ten (10) days of the due date shall bear
interest until paid at a rate equal to the lesser of (i) the highest rate
allowable at law, or (ii) an annual rate equal to the prime or reference rate,
as announced by the Bank of America from time to time, plus four percent (4%).
All such interest shall be deemed to be Additional Rent.
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(f) MANNER OF PAYMENT. All payments due from Tenant to
Landlord hereunder shall be made to Landlord without deduction or offset in
lawful money of the United States of America actually received at Landlord's
address for notice under this Lease, or to such other person at such other place
as Landlord may from time to time designate in writing to Tenant. If any check
given by Tenant to Landlord should be returned by a bank for insufficient funds,
Landlord may, in its sole discretion, require that Tenant thereafter pay all
amounts owing under this Lease by way of cashiers check. Tenant shall reimburse
Landlord for any charges paid by Landlord to its bank in connection with such
returned check.
(g) SECURITY DEPOSIT. Under the Prior Lease, Tenant has a
$15,000 security deposit with Landlord. Upon the execution of this Lease, Tenant
shall deliver to Landlord, by check, an additional security deposit of
Thirty-Five Thousand Dollars ($35,000) (together with the existing security
deposit of $15,000, the "Security Deposit"). The Security Deposit shall be held
by Landlord as security for the faithful performance by Tenant of all of the
provisions of this Lease. If Tenant fails to pay Rent or other charges due under
this Lease, or any other Event of Default occurs, Landlord may use, apply or
retain all or any portion of the Security Deposit for the payment of Rent or
other charge in default or for the payment of any other sum to which Landlord
may become obligated by reason of the Event of Default, or to compensate
Landlord for any loss or damage which Landlord may suffer by reason of the Event
of Default. If Landlord so uses or applies all or any portion of the Security
Deposit, Tenant shall within ten (10) days after written demand therefor deposit
cash with Landlord in an amount sufficient to restore the Security Deposit to
the full amount stated above and Tenant's failure to do so shall be a material
breach of this Lease. No later than 30 days after the end of the term, providing
no Event of Default has occurred and is continuing and the Premises is returned
to Landlord in the condition required under this Lease, the unapplied portion of
the Security Deposit shall be returned to Tenant. No later than ten days
following the expiration of the Term or earlier termination of this Lease,
Landlord and Tenant shall conduct a joint walkthrough to assess the condition of
the Premises. No trust relationship is created herein between Landlord and
Tenant with respect to the Security Deposit nor is the Landlord obligated to
segregate or pay interest on such Security Deposit. The application by Landlord
of the Security Deposit against any obligation owing by Tenant or to compensate
Landlord for any damage sustained by it hereunder shall not constitute a waiver
by Landlord of any other remedy that may be available to it.
4. TAXES.
(a) PERSONAL PROPERTY TAXES. Tenant shall pay, before delinquent, all
taxes levied or assessed during the Term on Tenant's equipment, furniture,
fixtures, inventory and other personal property located at the Premises, and
shall reimburse Landlord upon demand for all taxes paid or payable by Landlord
(other than state and federal personal or corporate income taxes measured by the
net income of Landlord from all sources) whether or not now customary or within
the contemplation of the parties hereto: (a) upon or measured by Rent payable
under this Lease, including without limitation, any gross rents or gross
receipts tax or excise tax levied by the City of Vacaville, Xxxxxx County, the
State of California, the federal government or any other governmental body with
respect to the receipt of such Rent; (b) upon or with respect to the possession,
leasing, operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion of the Premises; (c) upon,
measured by or reasonably attributable to the cost or value of Tenant's
equipment, furniture, fixtures and other personal
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property located in the Premises or by the cost or value of any leasehold
improvements made in or to the Premises, regardless of whether title to such
improvements shall be in Tenant or Landlord; or (d) upon this transaction or
any document to which Tenant is a party creating or transferring an interest
or an estate in the Premises. If it is unlawful for Tenant to so reimburse
Landlord, the Minimum Rent payable to Landlord under this Lease shall be
increased so that the Minimum Rent and all of the tax so imposed, shall be
equal to the Minimum Rent payable before such tax was imposed.
(b) PROPERTY TAXES. Landlord shall pay the real property taxes
and assessments for the Premises.
5. USE.
(a) The Premises shall be used solely and exclusively for the
purpose of producing and operating a renaissance-theme fair under the name of
"The Renaissance Pleasure Faire" and other related educational programs,
operated in the manner of past Renaissance Pleasure Xxxxxx (the "Renaissance
Faire"). Tenant agrees that it shall produce and operate from the Premises a
renaissance-theme fair under the name "The Renaissance Pleasure Faire" in the
manner of and during the same days and hours of operation as past Renaissance
Pleasure Xxxxxx operated in Northern California. Tenant agrees that all of its
advertising and publicity program materials shall identify that the Renaissance
Faire is being held at "The Nut Tree". Tenant shall not use or permit the
Premises to be used for any other purpose or under any other name without
Landlord's prior written consent, which may be granted or withheld at Landlord's
sole discretion.
(b) Tenant shall carry on the business of producing the
Renaissance Faire diligently and continually in the Premises throughout the Term
and shall cause such business to be conducted in the Premises during such hours
as the Renaissance Faire has typically operated in the State of California for
the past three (3) years. Tenant shall operate the Renaissance Faire in the
specified areas of the Premises set forth on the site plan attached hereto as
EXHIBIT A. Tenant shall not operate the Renaissance Faire in any area outside of
the specified areas as shown on the site plan, nor allow any of the Renaissance
Faire activities or employees, customers, invitees, vendors or agents to enter
onto or conduct any activity whatsoever in any area outside of such specified
areas.
(c) Provided that the same is in compliance with all
applicable laws, rules and regulations, Tenant may install its standard signage
and advertising material for the Renaissance Faire at or upon the Premises. Upon
request of Landlord, Tenant shall immediately remove any sign, advertising
material or lettering which Tenant has placed or permitted to be placed in, on
or about the Premises that Landlord, in the reasonable exercise of its business
judgment, finds objectionable or offensive, and if Tenant fails to do so,
Landlord may enter upon the Premises and remove the same at Tenant's expense. At
the expiration or earlier termination of the Lease, Tenant shall, at its sole
cost and expense, remove its exterior signs and patch and repair any damage
caused by or resulting from Tenant's installation and removal of such signs.
(d) Tenant shall not do or permit to be done in, on or about
the Premises, nor bring or keep or permit to be brought or kept therein,
anything which is prohibited by or will in any way conflict with any law,
statute, ordinance or governmental rule or regulation now in force
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or which may hereafter be enacted or promulgated, or which is prohibited by
the standard form of fire insurance policy or will in any way increase the
existing rate of or affect any fire or other insurance upon the Premises or
any of its contents, or cause a cancellation of any insurance policy covering
the Premises or any part of the Premises or any of its contents without
Landlord's consent which may be withheld by Landlord in its sole discretion.
(e) Except for propane, paints, solvents, batteries and other
chemicals traditionally used in restaurants, carpentry, plumbing, electrical and
maintenance shops and other work areas traditionally operated at past
Renaissance Xxxxxx, Tenant shall not use, store, dispose, release, discharge,
transport or generate (collectively "USE OF HAZARDOUS SUBSTANCES") any Hazardous
Substances (as defined below), in, on, to, under, from or about the Premises
without Landlord's prior written consent, which consent may be granted,
conditioned or withheld in Landlord's sole and absolute discretion. Tenant
warrants and agrees that if Landlord grants its consent to Tenant's Use of
Hazardous Substances (including the Hazardous Materials consented to in the
preceding sentence), such Use of Hazardous Substances shall be conducted in
strict accordance with all Environmental Laws (as defined below) and prudent
business practices. Any consent or approval by Landlord of Tenant's Use of
Hazardous Substances shall not constitute an assumption of risk respecting the
same nor a warranty or certification by Landlord that Tenant's proposed Use of
Hazardous Substances is safe or reasonable or in compliance with Environmental
Laws. Tenant shall maintain current all permits required for its operations,
including, without limitation, those for the Use of Hazardous Substances. Tenant
shall keep and maintain the Premises in compliance with all, and shall not cause
or permit the Premises and the activities conducted thereon by Tenant to be in
violation of any, Environmental Laws. Tenant shall not undertake any remedial
action with respect to any release of Hazardous Substances or to comply with any
violation of any Environmental Law without obtaining the prior written consent
of Landlord. If Tenant's use of Hazardous Substances results in an increase in
the premiums of any insurance that Landlord currently carries for the Premises,
then Tenant shall pay the amount of such increased premiums. Additionally,
Landlord may require that Tenant procure, at Tenant's sole cost and expense,
additional insurance that specifically covers loss or damage to persons or
property that may result from Tenant's use of such Hazardous Substances.
(i) Tenant shall indemnify, defend (by counsel
reasonably acceptable to the indemnified party), protect and hold the Landlord
Parties free and harmless from and against any and all claims, liabilities,
penalties, forfeitures, losses or expenses (including, without limitation,
attorneys' fees and costs and court costs) or death of or injury to any person
or damage to any property whatsoever, arising from or caused in whole or in
part, directly or indirectly, by Tenant's Use of Hazardous Substances to, in,
on, under, about or from the Premises or Tenant's failure to comply with any
Environmental Law. Notwithstanding anything to the contrary contained in the
preceding sentence, if a final, binding judicial, administrative or arbitration
determination is made whereby Tenant's Use of Hazardous Substances or Tenant's
failure to comply with any Environmental Law is deemed to be only partially
responsible or accountable for any claims or other losses and liability covered
by this Paragraph 5(e)(i), then Tenant's indemnity obligations under this
Paragraph 5(e)(i) shall only apply to the extent Tenant is deemed responsible or
accountable. For purposes of the indemnity provisions hereof, any acts or
omissions of Tenant, or by employees, agents, assignees, contractors or
subcontractors of Tenant or others for whose acts Tenant is legally responsible
or liable (whether or not they are negligent, intentional, willful or unlawful)
shall be strictly attributable to Tenant. This indemnification shall
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include without limitation (a) personal injury claims, (b) the payment of
liens, (c) diminution in the value of the Premises, (d) damages for the loss
or restriction on use of the Premises, (e) sums paid in settlement of claims,
(f) reasonable attorneys' fees and costs, consulting fees and costs and
expert fees and costs, (g) the cost of any investigation of site conditions,
and (h) the cost of any repair, clean-up, health or other environmental
assessments, remedial, closure, removal or restoration work, decontamination
or detoxification if required by any governmental or quasi-governmental
agency or body having jurisdiction or deemed necessary in Landlord's
reasonable judgment. The indemnification contained herein shall survive the
expiration or earlier termination of this Lease.
(ii) As used in this Lease, the term "HAZARDOUS
SUBSTANCES" shall mean hazardous wastes, hazardous chemicals, biological and/or
medical waste, flammable or explosive materials, radioactive materials, toxic
materials or related materials (whether potentially injurious to persons or
property and whether potentially injurious by themselves or in combination with
other materials), including, but not limited to, petroleum products or fractions
thereof and any waste, chemical, substance or material now or hereafter
determined by any federal, state or local governmental agency or authority
having jurisdiction to be hazardous to human health or the environment or which
is or becomes regulated by such agency or authority (including, but not limited
to, those materials listed in the United States Department of Transportation
Hazardous Materials Table as amended from time to time), which were released to
the environment, including, without limitation, the soil, groundwater and/or
air, at the Premises. As used in this Lease, the term "ENVIRONMENTAL LAWS" shall
mean any and all present and future federal, state and local laws (whether under
common law, statute, rule, regulation or otherwise), requirements under permits
issued with respect thereto, and other requirements of governmental authorities
relating to the environment or to any Hazardous Substance (including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as heretofore or hereafter amended from time to time.
(iii) Landlord and Tenant shall immediately advise
the other in writing of, and provide the other with a copy of: (1) any notices
of violation or potential or alleged violation of any Environmental Law which
are received by either of them from any governmental agency; (2) any and all
inquiry, investigation, enforcement, clean-up, removal or other governmental or
regulatory actions instituted or threatened relating to either of them or the
Premises; and (3) all claims made or threatened by any third party against
either of them or the Premises relating to any Hazardous Substances.
(f) Tenant agrees that in connection with the use and
operation of the Premises, Tenant will not (i) create, cause, maintain or permit
any nuisance in or about the Premises; (ii) do or permit anything to be done in
or about the Premises which will in any way obstruct or interfere with the
rights of property owners and/or tenants adjoining the Premises, or injure or
annoy them; (iii) commit or suffer to be committed any waste in, on or about the
Premises; (iv) use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose or for any purpose which violates the terms of
any recorded instrument affecting the Premises; (v) cause or permit obnoxious
odors to emanate or be dispelled from the Premises; or (vi) permit undue
accumulations of garbage, trash, rubbish or any other refuse. If Tenant hires or
uses private security personnel for the Premises, such security personnel shall
not engage in any security activities outside of the Premises and Tenant shall
indemnify, protect and
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hold the Landlord Parties harmless from and defend (by counsel reasonably
acceptable to the indemnified party) the Landlord Parties against any and all
claims, causes of action, liability, damage, loss or expense (including
reasonable attorneys' fees and costs and court costs) arising out of or
related to any activities of such security personnel. This indemnity shall
survive the expiration or earlier termination of the Lease.
(g) Tenant acknowledges that neither Landlord nor any employee
or agent of Landlord has made any representations, warranties or covenants to
Tenant about (i) the suitability of the Premises with respect to Tenant's
intended use of the Premises, (ii) the need for, or lack of, any safety or
security measures, or (iii) the profitability of the location for Tenant's
intended use of the Premises. Tenant further acknowledges that Landlord makes no
representation or warranty as to the condition of the Buildings or any
improvements located at the Premises, and makes no representation or warranty as
to the presence or release of Hazardous Materials in, under or about the
Premises.
6. ABANDONMENT. Tenant shall not vacate or abandon the
Premises at any time during the Term. If Tenant shall abandon, vacate or
surrender the Premises, or be dispossessed by process of law or otherwise,
any personal property belonging to Tenant and left on the Premises shall be
deemed to be abandoned, at the option of Landlord, except such property as
may be mortgaged to Landlord.
7. SERVICES AND UTILITIES.
(a) Tenant shall maintain, repair, replace and otherwise keep
the mains and conduits located within the boundaries of the Premises that bring
water, gas, sewerage disposal, electricity and telephone service to the Premises
and to any Building, as well as all meters and submeters for such utilities, in
the same condition as existing on the commencement of the Term, subject only to
alterations, additions and improvements approved in writing by Landlord as
provided in this Lease. Tenant shall bear all of the costs of water, gas,
electricity, sewage and any other utility services to the Premises, as well as
the required meters for such services. Tenant agrees that it shall, on the Lease
Commencement Date and throughout the Term, open an account in its name with the
utility providers for all utilities to be used by it on the Premises and pay all
connection fees, deposits and other fees and charges required by the applicable
utility providers as a condition to opening Tenant's accounts. Landlord does not
have to allow Tenant access to the Premises until all such utility accounts have
been opened and all such connection fees, deposits and other fees and charges
have been paid by Tenant.
(b) Landlord shall not be obligated to furnish any utilities
or services to the Premises, and Landlord does not make any warranty or
representation as to the quantity, quality, availability, amount of duration of
any such utilities or services. Tenant acknowledges that it has inspected the
Premises and the capacity, condition and locations of all utilities, utility
conduits and utility stubs, and agrees that they are adequate for Tenant's use.
Tenant agrees that it shall pay when due all charges for utilities used by it on
and after the Lease Commencement Date. Tenant agrees at all times to cooperate
fully with Landlord and to abide by all the regulations and requirements which
Landlord may prescribe for the proper functioning and protection of the
utilities systems.
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(c) Landlord shall not be liable to Tenant in damages or
otherwise if: (i) any utility shall be or become unavailable from any public
utility company, public authority or any other person or entity (including
Landlord) supplying or distributing such utility, or (ii) any interruption in
any utility service caused by the making of any repairs or improvements or by
any cause beyond Landlord's reasonable control. Notwithstanding the foregoing,
if any utility shall be or becomes unavailable as described in the preceding
clauses (i) and (ii) and the absence of such utility materially impairs Tenant's
ability to conduct the Renaissance Faire in substantially the same manner as
past Renaissance Xxxxxx, then Tenant shall be entitled to terminate this Lease
by providing written notice thereof to Landlord. Upon any such termination by
Tenant, Tenant shall only be obligated to pay Minimum Rent through the
termination date, prorated based on the number of scheduled event days for the
Renaissance Faire and the number of actual event days that have occurred up
through the date of termination.
(d) Tenant shall, at its sole cost and expense, contract with
the local sanitation company to provide Tenant with trash removal service for
trash generated by Tenant. Tenant shall either rent from the local sanitation
company or purchase a trash dumpster, to be placed in a location designated by
Landlord. Tenant shall place all trash generated by Tenant's use of the Premises
in this trash dumpster and shall have such trash emptied from the Premises as
often as reasonably necessary to keep the area surrounding its trash dumpster in
a neat and sanitary condition. Tenant shall, at its sole cost and expense,
regularly clean the area surrounding its trash dumpster and shall otherwise keep
this area in a neat and sanitary condition.
8. ALTERATIONS AND IMPROVEMENTS.
(a) Tenant may not make any alterations or improvements to any
existing buildings, or cut any trees, shrubs or any other existing foliage at,
or install or create any paths or roads on, the Premises without first obtaining
Landlord's prior written consent and any consent required from all applicable
governmental agencies. Notwithstanding the foregoing, once Tenant has obtained
its planned development permit and all appeals periods have expired, Tenant may
construct such structures on the Premises as it traditionally has constructed in
connection with the operation of past Renaissance Xxxxxx. Any alterations and
improvements made by Tenant to the Premises shall be subject to all the other
provisions of this Paragraph 8.
(b) If Tenant makes any alterations, additions or improvements
to the Premises, then any and all work done by Tenant:
(i) shall be done at Tenant's sole expense and in
such manner as not to disturb adjoining property owners and their tenants;
(ii) shall comply with all applicable laws, rules,
orders, permits, authorizations, and governmental requirements and orders, as
well as rules and regulations of the National Board of Fire Underwriters, the
Board of Fire Underwriters responsible for the geographic area in which the
Premises are located and other bodies hereafter exercising similar functions;
and
(iii) shall be made promptly and in a good
workmanlike manner using prime quality materials.
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Tenant shall promptly correct any work not conforming to the provisions of
this paragraph or to any plans, specifications, permits, or other documents
required by this paragraph to be obtained by Tenant and shall promptly repair
any damage caused by such nonconforming work.
Additionally, Tenant shall provide Landlord with at least five (5) business
days' prior written notice of any work to be performed in the Premises.
(c) Prior to commencing any work in the Premises (other than
work for which Landlord's consent is not required under subparagraph 8(a)
above), Tenant shall procure (at its sole cost and expense), furnish to Landlord
and obtain Landlord's prior written consent for:
(i) Plans and specifications of such proposed
alterations, additions and improvements;
(ii) A certificate evidencing that Tenant or Tenant's
contractor has procured and paid for workers' compensation insurance covering
all persons employed in connection with the work;
(iii) Such additional personal injury and property
damage insurance (over and above any insurance required to be carried by Tenant
pursuant to the provisions of Paragraph 13 of this Lease) as Landlord may
reasonably require in connection with the work and including the Landlord and
any first mortgagee or beneficiary as an additional insured;
(iv) Such permits, authorizations or consents as may
be required by any applicable law, rule, order or requirement of any
governmental authority having jurisdiction thereover; and
(d) If Tenant fails to comply with any provision of this
Paragraph, Landlord, in addition to any other remedy herein provided, may
require Tenant to cease all work being performed by or on behalf of Tenant and
Landlord may deny access to the Premises to any person performing work in or
supplying materials to the Premises.
(e) During the Term, all improvements, alterations and
additions (including fixtures) installed in or made to the Premises by Tenant
after the Lease Commencement Date ("TENANT ADDITIONS") shall be the property of
Tenant. As of the expiration of the Term or earlier termination of this Lease,
Tenant shall have removed all Tenant Additions and restored the Premises to the
condition it was in before Tenant entered onto the Premises under the Prior
Lease (including removal of all of Tenant's trade fixtures, equipment, personal
property and exterior signage). Tenant shall, at its sole cost, immediately
repair any damage to the Premises caused by its removal of Tenant Alterations
and other property.
(f) Tenant shall, at its sole cost and expense, immediately
following the Lease Commencement Date fence off the Protected Areas and post
signs on the fences stating that no one is to enter the Protected Areas. Tenant
shall ensure during the Term that neither its activities nor the activities of
its employees, workers, contractors, agents, Visitors, invitees and licensees
shall cause any damage to the Protected Areas.
9
9. LIENS. Tenant shall keep the Premises free from any liens arising
out of any work performed, materials furnished or obligations incurred by
Tenant. If Tenant desires, in good faith, to contest the validity of any such
lien, it may do so by an appropriate proceeding after first depositing with
Landlord, within five (5) days after the filing of the lien, security in the
form of a cash deposit or surety bond in an amount which, in Landlord's sole
judgment, is sufficient to insure the payment and discharge of such lien,
together with attorneys' fees and interest and penalties thereon. If Tenant does
not, within five (5) days following the imposition of any such lien, cause the
same to be released of record, or deposit such security, Landlord shall have, in
addition to all other remedies provided in this Lease and by law, the right but
not the obligation to cause the same to be released by such means as it shall
deem proper, including payment of the claim giving rise to such lien. All sums
paid by Landlord for such purpose and all expenses incurred by it in connection
therewith, shall be payable to Landlord by Tenant on demand. Landlord shall have
the right to post and keep posted on the Premises any notices that may be
provided by law or which Landlord may deem to be proper for the protection of
Landlord and the Premises from such liens, and Tenant shall give Landlord at
least ten (10) days prior written notice of the date of commencement of any
construction on the Premises in order to permit the posting of such notices.
10. REPAIR AND MAINTENANCE OF THE PREMISES.
(a) Tenant shall, at all times during the Term and at Tenant's
sole cost and expense, keep the Premises, the Buildings, all improvements,
fixtures and equipment, trees, shrubs and any other foliage in the condition
existing as of the date immediately prior to Tenant's entry onto the Premises
under the Prior Lease (the "Initial Entry Date"), ordinary wear and tear and
alterations, additions and improvements approved in writing by Landlord
excepted. Tenant hereby waives all rights to make repairs at the expense of
Landlord or in lieu of making repairs to vacate the Premises as provided in
California Civil Code Section 1942 or any other law, statute or ordinance now or
hereafter in effect.
(b) Tenant shall provide its own janitorial service for the
Premises at Tenant's sole cost and expense.
(c) Tenant shall at the end of the Term or the earlier
termination of this Lease surrender to Landlord the Premises in the same
condition as when received on the Initial Entry Date, ordinary wear and tear
excepted. If the Premises, as of the end of the Term or earlier termination of
this Lease, remains damaged due to the occurrence of a casualty, Tenant shall
assign all of its rights and interest in and to all insurance proceeds that are
or become available as compensation for damage to Tenant Additions that were to
have remained in the Premises. "Ordinary wear and tear" shall not, however,
include any deterioration of or damage to the Premises and the alterations,
additions and improvements thereto that would have been avoided or lessened if
Tenant had fulfilled its maintenance and repair obligations under this Lease and
under the Prior Lease. If Tenant fails to leave the Premises in the condition
required under this Lease at the end of the Term or earlier termination of this
Lease and thereafter fails to restore the Premises to such condition within 30
days after delivery of written notice of such failure from Landlord, then Tenant
shall immediately forfeit the entire unapplied portion of the Security Deposit.
Tenant shall have a right of entry onto the Premises during such 30 day period,
on all of
10
the terms and conditions of this Lease (excluding the obligation to pay
Minimum Rent), solely to restore the Premises to the condition required under
this Lease at the end of the Term or earlier termination of this Lease.
Landlord's retention of the Security Deposit shall not relieve Tenant of its
liability to Landlord for Tenant's failure to leave the Premises in the
condition required under this Lease at the end of the Term or earlier
termination of the Lease.
(c) Tenant further agrees that all equipment, trade fixtures,
inventory and other personal property of Tenant that remain in the Premises at
the expiration of the Term or earlier termination of the Lease ("PERSONAL
PROPERTY") shall be deemed abandoned by Tenant and shall immediately become the
property of Landlord, without compensation to Tenant, and Landlord shall be
free, as it determines in its sole discretion, to store, move, sell or otherwise
dispose of the Personal Property. Tenant hereby waives any and all of its
rights, and relieves Landlord of all of Landlord's obligations, with respect to
such Personal Property created under California Civil Code Sections 1980 ET.
SEQ. Without limiting the foregoing, Tenant acknowledges that Landlord need not
store or exercise any duty of care with respect to the Personal Property, nor
shall Landlord be obligated to provide any notice to Tenant or publish any
notice with respect to any sale of the Personal Property.
(d) Landlord has no obligation and has made no promises to
alter, remodel, improve or repair the Premises or any part of the Premises and
no representations respecting the condition of the Premises have been made by
Landlord to Tenant.
11. DESTRUCTION OR DAMAGE.
(a) If the Premises, or any part thereof, are damaged by fire,
earthquake, act of God, the elements or other casualty, unless the Lease is
otherwise terminated pursuant to the provisions of this Xxxxxxxxx 00, Xxxxxxxx
may elect to restore the Premises. Upon such election, Landlord shall so notify
Tenant, this Lease shall remain in full force and effect, and to the extent
Tenant's use and occupancy of the Premises is materially impaired as a result of
such casualty, Minimum Rent shall be proportionally abated, to an extent
determined by Landlord in its reasonable business judgment, until that date that
Landlord substantially completes its restoration of the Premises. If Landlord
elects not to restore the Premises, Landlord shall so notify Tenant, this Lease
shall immediately terminate and Landlord shall have no further obligations or
liabilities to Tenant, including any liability for lost profits or any actual or
perceived injuries to Tenant or Tenant's business. Tenant hereby releases the
Landlord Parties from any claims regarding such liabilities or obligations to
Tenant if Landlord elects not to restore the Premises pursuant to this Paragraph
11(a).
(b) Tenant waives California Civil Code Sections 1932(2) and
1933(4) providing for termination of hiring upon destruction of the thing hired.
12. RELEASE AND INDEMNIFICATION.
(a) The Landlord Parties shall not be liable to Tenant and
Tenant hereby waives all claims and causes of action against the Landlord
Parties for any injury to or death of any person or damage to or destruction of
property in or about the Premises by or from any cause
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whatsoever, except to the extent resulting from the willful misconduct and
gross negligence of a Landlord Party (in which case this waiver shall not
apply only as to such Landlord Party).
(b) Tenant shall indemnify, protect and hold the Landlord
Parties harmless from and defend (by counsel reasonably acceptable to the
indemnified party) the Landlord Parties against any and all claims, causes of
action, liability, damage, loss or expense (including reasonable attorneys' fees
and costs and court costs), statutory or otherwise arising out of or incurred in
connection with (i) the use and occupancy of the Premises by Tenant, or any
person claiming through Tenant or the presence of Visitors at the Premises, (ii)
any activity, work or thing done or permitted or suffered by Tenant in or about
the Premises, (iii) any acts, omissions or negligence of Tenant, any person
claiming through Tenant, or the contractors, agents, employees, invitees, or
visitors of Tenant or any such person ("TENANT PARTY" or "TENANT PARTIES"), (iv)
any breach, violation or nonperformance by any Tenant Party of any provision of
this Lease or of any law, ordinance, rule or other governmental regulation of
any kind, or (v) except to the extent resulting from the willful misconduct or
gross negligence of an Indemnified Party (in which case this indemnity shall not
apply only as to such Indemnified Party), any injury to or damage to the person,
property or business of any Tenant Party.
(c) The foregoing indemnity obligations of the parties shall
include reasonable attorneys' fees, investigation costs and all other reasonable
costs and expenses incurred by reason of any of the foregoing. The provisions of
this Paragraph 12 shall survive the expiration or earlier termination of this
Lease with respect to any damage, injury or death occurring prior to such
expiration or termination.
13. INSURANCE.
(a) At all times Tenant shall, at its sole expense, procure
and maintain the following insurance coverage:
(i) Tenant, at its expense, shall maintain commercial
general liability insurance in the following amounts and with the coverages:
$1,000,000 per occurrence and $2,000,000 in the aggregate. Such commercial
general liability insurance shall protect and indemnify Landlord and Tenant
against any and all claims and liabilities for injury or damage to persons or
property or for the loss of life or of property occurring in or about the
Premises, and for injury or damage to persons or property or for the loss of
life or of property occurring upon, in or about the Premises and caused by or
resulting from any act or omission of Tenant, its employees, agents,
contractors, customers, guests, licensees or invitees. Such insurance shall
specifically insure the performance by Tenant of its indemnity obligations under
Paragraph 12 above, shall be on an occurrence basis and shall contain a
cross-liability endorsement.
(ii) Employer's liability insurance and worker's
compensation insurance, as required by applicable law;
(iii) If Tenant sells or dispenses alcoholic
beverages, standard liquor liability insurance; and
(iv) An umbrella policy of not less than $4,000,000.
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(b) The insurance required under this Paragraph 13 and all
renewals thereof shall be effected under valid and enforceable policies and
shall be issued by such good and responsible companies qualified to do and doing
business in the State of California rated overall an "A" and XII, or better, in
the most recent edition of Best's Insurance Reports. Each policy shall expressly
provide that the policy shall not be canceled or altered in such manner as to
adversely affect the coverage afforded thereby without thirty (30) days prior
written notice to Landlord. All insurance carried by Tenant under this Lease
shall expressly provide that it shall be primary and non-contributing with any
insurance that may be carried by Landlord. The commercial general liability and
liquor liability insurance shall name the following parties as additional
insureds (collectively, the "ADDITIONAL INSUREDS"): (1) Landlord, (2) TKG Monte
Vista, LLC, a California limited liability company, (3) Masson Land, a
California general partnership, (4) Nut Tree, a California limited partnership,
and (5) TKG Coffee Tree Two, LLC, a California limited liability company.
(c) A certificate evidencing each policy of insurance required
to be carried under this Paragraph 13, with evidence of payment, shall be
delivered to Landlord for retention by Landlord at least ten (10) days prior to
the Lease Commencement Date or the expiration date of any policy, and a complete
copy of each such insurance policy shall be delivered to such parties as soon as
practicable thereafter. If Tenant fails to insure or shall fail to furnish to
such parties any such policy or duplicate policy as required by this Xxxxxxxxx
00, Xxxxxxxx may from time to time effect such insurance for the benefit of
Tenant for the Term, and any premium paid by Landlord shall be recoverable from
Tenant as Additional Rent on demand by Landlord.
(d) Tenant's obligation to procure and maintain the insurance
required by this Lease may be satisfied by obtaining coverage under a so-called
blanket policy or policies of insurance carried and maintained by Tenant
provided that the coverage afforded Landlord will not be reduced or be
diminished by reason of the use of such blanket policy of insurance and provided
further that the other applicable requirements of this Paragraph 13 are
satisfied.
(e) Each of Landlord and Tenant, on behalf of itself and on
behalf of anyone claiming under or through it by way of subrogation or
otherwise, waives all rights and causes of action against the other party, and
the officers, employees, members, managers, trustees, beneficiaries, agents and
invitees of the other party, for any liability arising out of any loss or damage
in or to the Premises and/or any structures and improvements thereon, or to the
other's property in or about the Premises caused by or that result from any
peril covered under the policies of insurance that Landlord or Tenant are
required to maintain under this Lease; provided, however, that this waiver shall
only apply to the extent of insurance proceeds actually received by the party
giving the waiver. Subject to the foregoing, this release and waiver shall be
complete and total even if such loss or damage may have been caused by the
negligence of the other party, its officers, employees, agents or invitees. Each
party covenants that from and after the date possession of the Premises is
delivered to Tenant its insurance policies will contain waiver of subrogation
endorsements.
(f) Landlord reserves the right to increase the limits and/or
change the terms of coverage required to be carried by Landlord and/or Tenant
under this Lease if such limits
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and/or terms of coverage are below or different from those carried or
required to be carried by prudent operators of other fairs located in Xxxxxx
County, California.
14. COMPLIANCE WITH LEGAL REQUIREMENTS. Tenant shall, at its sole
cost and expense, promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force ("LAWS"), with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted, with any
direction or occupancy certificate issued pursuant to any law by any public
officer or officers, as well as the provisions of all recorded documents
affecting the Premises, insofar as they relate to or affect the use or occupancy
of the Premises or any elements of the Premises, including the structural
elements and building systems of any Building. Tenant shall promptly provide
Landlord with a copy of any notices or demands whereby any party alleges that
Tenant's use or occupancy of the Premises is in violation of any such laws,
statutes, ordinances, or governmental rules, regulations or requirements. Tenant
shall indemnify, defend (by counsel reasonably acceptable to the Landlord
Parties) and hold harmless the Landlord Parties from all claims, causes of
action, liabilities, penalties, fines, damages, losses or expenses (including
reasonable attorneys' fees and costs and court costs) threatened against or
incurred by the Landlord Parties as a result of Tenant's failure to comply with
this Paragraph 14. This indemnity obligation shall survive the expiration or
earlier termination of this Lease.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not transfer, assign
(by operation of law or otherwise), sublet, enter into license agreements, or
hypothecate this Lease or the Tenant's interest in and to the Premises or any
part thereof or permit the use of the Premises or any part thereof by any party
other than the Tenant. Tenant shall be entitled to enter into concession
agreements for the Premises with concessionaires who have traditionally provided
services at past Renaissance Xxxxxx.
16. INSPECTIONS. Landlord may enter the Premises at reasonable
times during regular business hours of Tenant to: (a) inspect the Premises; (b)
determine whether Tenant is complying with all its obligations under this Lease;
(c) supply any service to be provided by Landlord to Tenant under this Lease;
(d) post notices of non-responsibility; and (e) make repairs required of Tenant
under the terms of this Lease, and may enter the Premises at any time to make
emergency repairs, provided, however, that all such work shall be done as
promptly as reasonably possible and so as to cause as little interference to
Tenant's business as reasonably possible. Tenant hereby waives, subject to the
limitations of Paragraph 12 above, if any, any claim for damages for any injury
or inconvenience to or interference with Tenant's business or any loss of
occupancy or quiet enjoyment of the Premises by reason of any such entry and
activity on the Premises, except that the foregoing waiver shall not apply to
the gross negligence or willful misconduct of Landlord.
17. DEFAULT. Tenant shall be deemed to be in default under this
Lease upon the occurrence of any of the following events ("EVENT OF DEFAULT"):
(a) Tenant fails to pay any Rent when and as the same becomes due and payable;
(b) Tenant fails to pay any other sum owing under this Lease when and as the
same becomes due and payable and such failure shall continue for more than five
(5) days after written notice that such payment was not received when due; (c)
Tenant fails to observe, keep or perform any of the other terms, covenants,
agreements or conditions contained in this Lease and on the part of Tenant to be
observed or performed and
14
such default continues for a period of thirty (30) days after written notice
by Landlord and Tenant shall not within said period commence with due
diligence the curing of such default or, having so commenced, shall
thereafter fail or neglect with due diligence to complete the curing of such
default or shall not, in all events, complete the curing of such default
within ninety (90) days after the original default notice to Tenant; (d)
Tenant files a petition for bankruptcy or become insolvent or make a transfer
in fraud of creditors, or make an assignment for the benefit of creditors, or
commence or there is commenced against Tenant any proceedings of any kind
under any provision of the United States Bankruptcy Code or under any other
insolvency, bankruptcy or reorganization act and, if any such proceedings are
involuntary, Tenant is not discharged from the same within ninety (90) days
thereafter; (e) a receiver is appointed for a substantial part of the assets
of Tenant and is not dismissed or discharged within ninety (90) days; (f)
Tenant vacates or abandons the Premises; (g) this Lease or any estate of
Tenant hereunder shall be levied upon by any attachment or execution which is
not discharged or bonded against within thirty (30) days; or (h) there are
more than two Events of Default during the Term (Tenant acknowledging that a
violation of this clause (h) is not subject to cure by Tenant and that
Landlord shall be immediately entitled to exercise all rights and remedies
available to it). Tenant shall not have any cure period under this Lease if
it fails to timely deliver an estoppel certificate or a subordination
agreement as provided in Paragraphs 22 and 25 below.
18. REMEDIES UPON DEFAULT. Upon the occurrence of any Event of
Default, Landlord may, at its option and without any further notice or demand,
in addition to any other rights and remedies given under this Lease or by law,
do any of the following:
(a) Landlord shall have the right, so long as such Event of
Default continues, to give written notice of termination to Tenant, and on the
date specified in such notice (which shall not be less than three (3) days after
the giving of such notice) this Lease shall terminate.
(i) If there is any such termination of this Lease,
Landlord may then or at any time thereafter, re-enter the Premises and remove
therefrom all persons and property and regain, repossess and enjoy the Premises,
without prejudice to any other remedies that Landlord may have by reason of an
Event of Default or of such termination.
(ii) If there is any such termination of this Lease,
Landlord may recover damages as provided in Section 1951.2 of the California
Civil Code. The amount of damages which Landlord may recover in event of such
termination shall include, without limitation, (A) the worth at the time of
award (computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one percent) of the
amount by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of rental loss that Tenant proves could be reasonably
avoided, (B) all reasonable legal expenses and other related costs incurred by
Landlord following an Event of Default, and (C) costs incurred by Landlord in
restoring the Premises to good order and condition, or in remodeling, renovating
or otherwise preparing the Premises for reletting.
(b) In addition to any other rights and remedies Landlord may
have, Landlord shall have all of the rights and remedies of a landlord provided
by Sections 1951.4 (landlord may continue lease in effect after tenant's breach
and abandonment and recover rent as it becomes due, if tenant has right to
sublet or assign, subject only to reasonable limitations). Landlord may
15
enter the Premises, remove and store, at Tenant's expense, any of Tenant's
personal property, trade fixtures or equipment left in the Premises, and
renovate and sublet all or any portion of the Premises for Tenant's account
on such terms and conditions as Landlord deems advisable, which actions shall
not constitute a termination of this Lease.
(c) If Tenant abandons or surrenders the Premises or is
dispossessed by process of law or otherwise, any property of Tenant left on the
Premises shall be deemed to be abandoned but Tenant shall remain liable to
Landlord for all cost, loss, damage and expense incurred by Landlord for the
removal of such property from the Premises and for the repair of any damage to
the Premises caused by such removal.
(d) Landlord shall have the right to cause a receiver to be
appointed in any action against Tenant to take possession of the Premises and/or
to collect the rents or profits derived from the Premises. Acts of preservation
or maintenance of the Premises, efforts to relet the Premises or the appointment
of a receiver shall not constitute an election on the part of Landlord to
terminate this Lease unless written notice of such intention is given to Tenant.
19. LANDLORD'S RIGHT TO CURE DEFAULT. All covenants and agreements
to be performed by Tenant under this Lease shall be at Tenant's sole cost and
expense and without any abatement of Rent, unless otherwise specified in this
Lease. If Tenant shall fail to pay any sum of money, other than Rent, required
to be paid by Tenant pursuant to this Lease or shall fail to perform any other
act on Tenant's part to be performed under this Lease and such shall have become
an Event of Default under Paragraph 17 above, Landlord may, but shall not be
obligated so to do and without waiving or releasing Tenant from any obligations
of Tenant, make any such payment or perform any such other act on Tenant's part
to be made or performed as provided in this Lease. All sums paid by Landlord,
whether to fulfill Tenant's unfulfilled payment obligations or to perform
Tenant's unfulfilled performance obligations, and all incidental costs shall be
deemed Additional Rent hereunder and shall be payable to Landlord on demand.
20. ATTORNEYS' FEES. If any action or proceeding is brought by any
party to enforce or interpret the provisions of this Lease, or if any other
action or proceeding is brought arising out of or relating to this Lease, the
prevailing party in such action or proceeding shall be entitled to recover all
attorneys fees and other fees and costs, including fees and costs of consultants
and experts and attorneys' fees and other fees and costs incurred on appeal, in
connection with any bankruptcy proceeding of Tenant and in collecting any
judgment or award.
21. Intentionally Deleted.
22. Intentionally Deleted.
23. NO MERGER. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work a merger, and shall, at
the option of Landlord, terminate all or any existing subleases or subtenancies,
or may, at the option of Landlord, operate as assignment to it of any or all
such subleases or subtenancies.
24. Intentionally Deleted.
16
25. Intentionally Deleted.
26. HOLDING OVER. If, with the prior written consent of Landlord,
Tenant holds possession of the Premises after expiration of the Term, Tenant
shall become a tenant from month to month upon all of the terms specified in
this Lease as applicable immediately prior to expiration of such Term, except
that Minimum Rent shall be one hundred and fifty percent (150%) of that
applicable immediately prior to expiration of such Term. If Tenant holds over in
the Premises without Landlord's prior written consent, then Tenant shall be a
tenant-at-sufferance. Each party shall give the other not less than thirty (30)
days' notice of its intention to terminate a month to month tenancy (although a
tenancy at sufferance may be terminated immediately without written notice) and
such month to month tenancy shall terminate at the end of a calendar month. If
Landlord should terminate Tenant's holdover tenancy as provided in this
Paragraph 26 and Tenant shall fail to vacate the Premises at the expiration of
such tenancy, Tenant agrees that it shall be liable to Landlord for all actual
and consequential damages resulting from Tenant's failure to so vacate. These
damages may include, without limitation, the cost of unlawful detainer
proceedings instituted by Landlord against Tenant, including court costs and
attorneys' fees and costs, increased construction costs to Landlord as a result
of Landlord's inability to timely commence construction of tenant improvements
for a new tenant for the Premises, and lost rent that results from Landlord's
inability to timely deliver the Premises to such new tenant. This clause shall
survive the expiration or earlier termination of this Lease.
27. MORTGAGEE PROTECTION. If there is any default on the part of
Landlord that is not cured within the cure periods described in Paragraph 40
below, Tenant will give written notice by registered or certified mail to any
Lender whose address shall have been furnished it. Such Lender shall have thirty
(30) days after receipt by it of such written notice to cure the default or, if
such default is not reasonably susceptible to cure within thirty (30) days, then
such additional time as may be reasonably necessary to effect such cure so long
as efforts to cure are commenced within such thirty (30) day period and
thereafter are diligently pursued to completion, including time to obtain
possession of the Premises by power of sale or a judicial foreclosure, if such
should prove necessary to effect a cure. Tenant agrees that it shall accept any
conforming cure that is tendered by the Lender within the cure period afforded
under this Paragraph 27.
28. LIMITATION OF RECOVERY AGAINST LANDLORD. Tenant acknowledges
and agrees that the liability of Landlord and of any other Landlord Parties
under this Lease shall be limited solely to Landlord's interest in the Premises,
and any judgments rendered against Landlord or any other Landlord Parties shall
be satisfied solely out of the proceeds of sale of Landlord's interest in the
Premises. No member, manager, officer or partner of Landlord shall be named as a
party in any suit or action (except as may be necessary to secure jurisdiction
over Landlord) and no personal judgment shall lie against Landlord or any other
Landlord Parties. Tenant agrees that the foregoing covenants and limitations
shall be applicable to any obligation or liability of Landlord, whether
expressly contained in this Lease or imposed by statute or at common law. The
foregoing provisions are not intended to relieve Landlord from the performance
of any of Landlord's obligations under this Lease, but only to limit the
personal liability of Landlord in case of recovery of a judgment against
Landlord.
17
29. NO PARTNERSHIP. It is expressly understood that Landlord does
not, in any way or for any purpose, become a partner of Tenant in the conduct of
its business, or otherwise, or a joint venturer or a member of a joint
enterprise with Tenant.
30. WAIVER. The waiver by any party of any term, covenant,
agreement or condition contained in this Lease shall not be deemed to be a
waiver of any subsequent breach of the same or any other term, covenant,
agreement or condition contained in this Lease, nor shall any custom or practice
which may develop between the parties in the administration of the terms of this
Lease be construed to waive or to lessen the right of Landlord to insist upon
the performance by Tenant in strict accordance with the terms of this Lease. The
subsequent acceptance of Rent or any other sum of money under this Lease by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant, agreement or condition of this Lease, other than the failure
of Tenant to pay the particular Rent or other sum so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent or other sum.
31. NOTICES AND CONSENTS. All notices, demands, consents or
approvals which may or are required to be given by either party to the other
under this Lease shall be in writing and shall be deemed to have been fully
given when received, if personally delivered or sent by facsimile, and
forty-eight (48) hours after being deposited in the United States mail, postage
prepaid, sent by certified or registered Mail or after being deposited with a
nationally recognized overnight courier service, and addressed to Tenant at the
address or facsimile number specified in the Basic Lease Information at the
Premises, and to Landlord at the address or facsimile number for Landlord
specified in the Basic Lease Information, or to such place as either party may
from time to time designate in a written notice to the other party.
32. COMPLETE AGREEMENT. There are no oral agreements between
Landlord and Tenant affecting this Lease, and this Lease supersedes and cancels
any and all previous negotiations, arrangements, brochures, oral and written
agreements and understandings, if any, between Landlord and Tenant or displayed
by Landlord to Tenant with respect to the subject matter of this Lease. There
are no representations between Landlord and Tenant other than those contained in
this Lease and all reliance with respect to any representations is solely upon
the representations contained in this Lease.
33. AUTHORITY. If Tenant is a corporation, partnership, limited
liability company or other entity, each of the persons executing this Lease on
behalf of the Tenant does hereby covenant and warrant that Tenant is duly
organized and validly existing, that Tenant has and is qualified to do business
in California, that Tenant has full right and authority to enter into this Lease
and to carry out the transactions contemplated herein, and that each person
signing on behalf of Tenant is authorized to do so.
34. MISCELLANEOUS. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. If Tenant should
consist of more than one individual or entity, the obligations under this Lease
imposed upon Tenant shall be joint and several. Time is of the essence with
respect to this Lease and each and all of its provisions. This Lease may only be
amended or modified by a document signed by both Landlord and Tenant. Any
purported amendment or modification that is not contained in such a document
shall be ineffective.
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Submission of this instrument for examination or signature by Tenant does not
constitute a reservation of or option for lease, and it is not effective as a
lease or otherwise until execution and delivery by both Landlord and Tenant.
The terms, covenants, indemnities, agreements and conditions herein
contained, shall (i) subject to the provisions as to assignment, apply to and
bind the heirs, successors, executors, administrators and assigns of the
parties hereto, and (ii) survive the expiration or earlier termination of the
Lease. If any provision of this Lease shall be determined to be illegal or
unenforceable, such determination shall not affect any other provision of
this Lease and all such other provisions shall remain in full force and
effect. This Lease shall be governed by and interpreted and enforced in
accordance with the laws of the State of California (it being agreed that
notwithstanding the resolution of any choice of law issues under California
law, this Lease shall be governed by California law). The parties agree that
all actions or proceedings arising out of or related to this Lease shall be
tried and litigated only in the California state courts and the federal
courts located in California. Tenant hereby irrevocably submits to the
jurisdiction of the California state courts and the Federal District Court of
the Northern District of California located in San Francisco with respect to
such actions or proceedings, and agrees that such courts constitute a proper
venue for any such actions and proceedings. All covenants and obligations
arising out of this Lease shall survive the expiration or earlier termination
of this Lease and shall remain outstanding until satisfied in full. Neither
this Lease nor any memorandum of this Lease shall be recorded.
35. BROKER'S COMMISSIONS. The parties each represent to the other
that they have not engaged a broker in connection with this transaction. Each
party agrees to indemnify, protect and defend the other against, and hold the
other harmless from, all loss, claim, expense and liability arising from any
such claim against a party by any broker or finder with whom the other party has
dealt, including without limitation, the cost of counsel fees in connection
therewith.
36. EFFECTIVENESS OF LEASE. This Lease shall not become effective,
and shall not create any rights or obligations of the parties hereto, until one
or more original counterparts hereof have been fully executed by both parties.
37. EXHIBITS. The Exhibits and Addendum, if any, attached to this
Lease are incorporated herein by this reference and made a part hereof as if
fully set forth herein.
38. BASIC LEASE INFORMATION. The Basic Lease Information is for
convenience of reference only. If there is any conflict between the terms of the
Lease and the terms set forth in the Basic Lease Information, the terms of the
Lease shall govern.
39. FINANCIAL INFORMATION. Tenant represents and warrants to
Landlord that all financial and other information that it has provided to
Landlord prior to the date of this Lease is true, correct and complete. If
Landlord should so request in connection with a proposed refinancing or sale of
the Premises or otherwise in connection with a sale by Landlord's partners of
their interest in Landlord, Tenant shall promptly provide Landlord with such
financial information concerning Tenant and Tenant's operations in the Premises
as Landlord shall reasonably request. Landlord agrees not to disclose such
financial information to any party other than to the prospective lenders or
purchasers and their respective accountants, attorneys and consultants, or as
otherwise required by law or by an order issued by a court with applicable
jurisdiction.
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40. LANDLORD'S DEFAULT. Landlord shall be in default under this
Lease upon (a) the failure of Landlord to pay any sum owing by Landlord under
this Lease as and when due where such failure continues for ten (10) days after
receipt by Landlord of written notice that such payment was not received by
Tenant, unless Landlord is disputing in good faith the nature, propriety or
amount of such sum, or (b) the failure of Landlord to observe, keep or perform
any of the other terms, covenants, agreements or conditions contained in this
Lease on the part of Landlord to be observed or performed and such failure
continues for a period of thirty (30) days after written notice by Tenant to
Landlord or, if such failure is not reasonably susceptible to cure within thirty
(30) days, then within a reasonable period of time so long as Landlord shall
have commenced to cure such failure within such thirty (30) day period and shall
thereafter diligently pursue such cure to completion. Tenant may not exercise
any remedies available to it under this Lease, at law or in equity until
Landlord has been afforded the cure periods described in this Paragraph 40.
Tenant acknowledges that its obligations under this Lease, including its
obligations to pay Rent, are independent of Landlord's obligations under this
Lease. The failure of Landlord or any Lender to perform Landlord's obligations
under this Lease shall not excuse Tenant from performing any of its obligations
under this Lease, including Tenant's obligation to pay Rent, or allow Tenant to
terminate this Lease or to vacate the Premises.
41. NO CONSTRUCTION AGAINST PREPARER. This Lease has been prepared
by Landlord and its professional advisors and reviewed by Tenant and its
professional advisors. Landlord, Tenant, and their separate advisors believe
that this Lease is the product of all of their efforts, that it expresses their
agreement, and that it should not be interpreted in favor of either Landlord or
Tenant or against either Landlord or Tenant merely because of their efforts in
preparing it.
42. FORCE MAJEURE. In addition to specific provisions of this
Lease, the time within which a party is to perform an obligation under this
Lease shall be extended on a day for day basis to the extent such performance is
delayed as a result of labor or supply difficulties, inclement weather, acts of
God, government regulation, additions, modifications or withdrawals of, or
delays in obtaining, governmental consents or approvals, building moratoria or
restrictions, requirements to prepare further environmental impact documents or
to conduct further environmental impact studies, or any similar cause beyond the
reasonable control or without the fault of the party invoking such extension.
Nothing contained in the foregoing sentence, however, shall excuse Tenant from
its obligation to timely pay Minimum Rent, Additional Rent or any other monetary
amounts owing under this Lease. Any party invoking an extension under this
paragraph shall immediately notify the other party in writing of the occurrence
and nature of the force majeure event and the anticipated delay resulting
therefrom.
43. CONFIDENTIALITY. The terms of this Lease are confidential and
shall not be disclosed by either party to any third parties except (i) to their
respective accountants, attorneys and consultants, (ii) to third parties with
whom the party has or is contemplating a business relationship with (e.g., a
prospective lender or purchaser with respect to Landlord or a prospective
assignee or purchaser with respect to Tenant so long as such third parties agree
to observe this covenant of confidentiality), or (iii) as required by a court
order. Notwithstanding the foregoing, Tenant shall be entitled to disclose the
terms of this Lease to the Department of Alcoholic Beverage Control in
connection with obtaining permits needed for the operation of the Renaissance
Faire.
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IN WITNESS WHEREOF, the parties have executed this Lease on
the respective dates indicated below:
TENANT: RENAISSANCE ENTERTAINMENT CORPORATION,
A COLORADO CORPORATION
By: ________________________________
Name: ______________________
Its: ______________________
Dated: _____________________________
Address: 000 Xxxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LANDLORD: TKG NUT TREE, LLC,
a California limited liability company
By: TKG Monte Vista, LLC,
a California limited liability company,
Its Manager
By: _______________________________
Xxxxxx X. Xxxxxxxx
Its Manager
Dated: _________________
Address: 00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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EXHIBIT A
SITE PLAN
