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 $7,868.29 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 constructed 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
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attributable to the cost or value of Tenant's equipment, furniture, fixtures
and other personal 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
Terma 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
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any way conflict with any law, statute, ordinance or governmental rule or
regulation now in force 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
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negligent, intentional, willful or unlawful) shall be strictly attributable
to Tenant. This indemnification shall 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
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engage in any security activities outside of the Premises and 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)
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,
unility conduits any 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, as 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
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(iii) shall be made promptly and in a good workmanlike manner
using prime quality materials.
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 and 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.
(c) 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
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nor the activities of its employees, workers, contractors, agents, Visitors,
invitees and licensees shall cause any damage to the Protected Areas.
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 attorney's 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
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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 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
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any person or damage to or destruction of property in or about the Premises by
or from any cause 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
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(iv) An umbrella policy of not less than $4,000,000.
(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 pay 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.
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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
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consultants, or as otherwise required by law or by an order issued by a court
with applicable jurisdiction.
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
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Alcoholic Beverage Control in connection with obtaining permits needed for the
operation of the Renaissance Faire.
IN WITNESS WHEREOF, the parties have executed this Lease on the
respective dates indicated below:
TENANT: RENAISSANCE ENTERTAINMENT CORPORATION,
A COLORADO CORPORATION
By: /s/ J. Xxxxxxx Xxxxxxx
--------------------------------------
Name: J. Xxxxxxx Xxxxxxx
--------------------------------
Its: President/C.V.O.
---------------------------------
Dated: 5/31/00
-----------------------------------
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: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
Its Manager
Dated: 5/31/00
-----------------------------------
Address: 00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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