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XXXXXX XXXXXX LEASE
AGREEMENT
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FOURTH AMENDMENT TO LEASE
This Fourth Amendment to Athletic Club Ground Lease ("Fourth
Amendment") is made and entered into as of December 11, 1996, by and between
XXXXXX XXXXXX PROPERTIES, LIMITED PARTNERSHIP, a Delaware limited partnership
("Landlord" or "HHP"), and THE SPECTRUM CLUB COMPANY, INC., a California
corporation, formerly known as Agoura Hills Spectrum Club, Inc. ("Tenant"), with
respect to the following:
RECITALS
A. Landlord and Tenant entered into that certain
Athletic Club Ground Lease dated as of November 15, 1991 (the "Original
Lease"), as amended by that certain First Amendment To Lease dated August 20,
1992 ("First Amendment), that certain Second Amendment To Lease dated August
21, 1992 ("Second Amendment"), and that certain Third Amendment To Lease dated
April 11, 1994 ("Third Amendment"), pursuant to which Landlord leased to Tenant
that certain parcel of real property (the "Premises") more particularly
described in the conceptual description attached to the Original Lease as
Exhibit "A," which Premises constitute a part of the development known as
Xxxxxx Xxxxxx Center as shown on the site plan attached to the Original Lease
as Exhibit "B." The Original Lease, as amended by the First Amendment, the
Second Amendment and the Third Amendment, is referred to herein as the "Lease."
Tenant caused the Premises to be improved with a building that has been since
its completion, and continues to be, used as an athletic club facility (the
"Club").
B. As required by the Lease, Landlord constructed a
surface parking lot (the "Surface Lot") with appropriate landscaping, lighting
and access to the Premises adjacent to the Premises and Tenant constructed a
surface parking lot (the "Additional Surface Lot") with appropriate
landscaping, lighting and access from Park Terrace which is located across Park
Terrace from the Premises. Tenant and Tenant's employees, customers, members,
guests, licensees, invitees and agents (collectively "Tenant's Parkers") have
been and are entitled to use the Surface Lot and the Additional Surface Lot for
parking in connection with their use of the Club.
C. Under the Lease, Landlord has the right to construct
buildings and/or improvements on the Surface Lot provided that during the
period of such construction on the Surface Lot, substitute parking shall be
provided for Tenant's Parkers.
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D. Concurrently with this Fourth Amendment, Landlord has
sold the Surface Lot site and the other parcel adjoining the Surface Lot site
to Medistar L.A. Corporation, a California corporation ("Medistar") for the
sole purpose of constructing on such other parcel a five (5)-story office
building and of constructing on the Surface Lot site a five (5)-level parking
structure (the "Parking Structure").
E. Also concurrently with this Fourth Amendment,
Landlord has entered into that certain Construction, Operations and Easement
Agreement For Parking Structure (the "Easement Agreement") with Medistar which
provides, among other things, for the construction, use and maintenance of the
Parking Structure including the requirement that the Parking Structure include
109 parking spaces for use by Landlord, Tenant's Parkers and future owners,
tenants and users of the Premises.
F. As more fully set forth in this Fourth Amendment,
Landlord desires to assign all of its rights under the Easement Agreement and
Tenant desires to assume some of Landlord's obligations thereunder, Landlord
shall construct an additional thirty eight (38) parking spaces in the
Additional Surface Lot for use by Tenant's Parkers during and after the
construction of the Parking Structure, and Landlord and Tenant desire to set
forth herein the parking rights and privileges of Tenant's Parkers with respect
to the Parking Structure, which rights and privileges will supersede those set
forth in Sections 37(b) and (c) of the Lease with respect to the Surface Lot
site and those set forth in Sections 37(a) and (f) with respect to certain
Overflow Parking Facilities.
AGREEMENT
IN CONSIDERATION of the foregoing recitals and the mutual
covenants and agreements set forth herein, the parties agree as follows:
1. Capitalized Terms: All capitalized terms when used herein shall have
such meaning as is given such terms in the Lease or the Easement Agreement.
2. Assignment of Landlord's Rights in the Easement Agreement. Landlord
hereby assigns all of Landlord's rights in the Easement Agreement, including,
without limitation, the HHP Easement Rights, and Tenant hereby accepts such
assignment. This assignment of Landlord's rights under the Easement Agreement
shall:
a) Be effective for the entire term of the Lease, as amended by
this Fourth Amendment, and any extensions thereof. Upon the
termination of the Lease, as amended by this Fourth Amendment, such
assignment shall be void and of no further force and effect, and all
of Landlord's rights in the Easement Agreement shall automatically
revert back to Landlord.
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b) Extend to any assignee or sublessee of Tenant pursuant to the
Lease, when such assignment or subletting is consented to in writing
by Landlord or permitted without the consent of Landlord pursuant to
the Lease.
3. Partial Assumption of Landlord's Obligations Under the Easement
Agreement. Tenant hereby assumes all of the obligations of Landlord under the
Easement Agreement, except as follows:
a) Tenant shall have no responsibility for Landlord's obligation
to reimburse Medistar for the Cost of the Parking Spaces, as provided
in Section 2.3 of the Easement Agreement;
b) Notwithstanding anything to the contrary contained in Sections
3.1(a) and (c) and Section 3.2 of the Easement Agreement and Section
7(a) and (c) of the Lease, the maximum monthly obligation of Tenant
with respect to HHP's proportionate share of Operating Costs
subsequent to the Occupancy Date, assuming the Parking Spaces are
available for use by Tenant's Parkers, shall not exceed $________, or
HHP's average monthly actual proportionate share of Operating Costs,
whichever is less. Such maximum monthly obligation shall be adjusted
as of January 1 of each calendar year commencing January 1, 1998 by a
percentage equal to the percentage change in the United States
Department of Labor, Bureau of Labor Statistics Consumer Price Index
of Urban Wage Earners and Clerical Workers (Revised Series), Subgroup
"all items," entitled "Consumer Price Index of Urban Wage Earners and
Clerical Workers (Revised Series), Los-Angeles-Anaheim-Riverside
Average (1982-84=100)." The base for such adjustment shall be the
index published for the month in which the Occupancy Date occurs, and
the comparison index for each adjustment shall be the index published
for the month of December immediately preceding the relevant
adjustment date. If at any adjustment date there shall not exist the
index in the same format as recited in this subsection, HHP shall
substitute any official index published by the Bureau of Labor
Statistics, or successor or similar governmental agency, as may then
be in existence and shall be most nearly equivalent thereto.
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The applicable Monthly Cap shall be proportionately reduced,
from time to time, if, and to the extent, any Parking Spaces are not
available for use by Tenant's Parkers.
When the new Monthly Cap for Tenant's monthly payment
obligation with respect to Operating Costs has been determined, HHP
shall give Tenant written notice to that effect indicating how such new
maximum amount was computed. If any adjustment provided for herein
shall not have been made at the commencement of the calendar year for
which applicable, Tenant shall continue to pay Tenant's last applicable
maximum monthly amount (or one twelfth (l/12th) of HHP's actual
proportionate share of Operating Costs, if lesser) until Tenant
receives HHP's written notice as to such adjustment. Within thirty
(30) days after Tenant's receipt of HHP's notice, Tenant shall pay to
Medistar an amount equal to the new maximum monthly payment by Tenant
times the number of months from the commencement of the then current
calendar year to the date of receipt of HHP's notice, less the
aggregate amount paid by Tenant on account of HHP's proportionate share
of Operating Costs for the same period. Thereafter, Tenant shall pay
its monthly payment of HHP's proportionate share of Operating Costs at
the new maximum amount set forth in HHP's notice.
c) Tenant shall not be responsible for any expenses
incurred by HHP in having the Garage Site assessed as a separate tax
parcel, as provided in Section 3.2(b) of the Easement Agreement.
d) Tenant shall not be responsible for HHP's obligation
to reimburse Medistar, in the event Medistar rebuilds the Parking
Structure after it is damaged or destroyed by a peril for which
Medistar obtained property insurance, for the constructions costs
attributable to the Parking Spaces to the extent such costs are not
covered by such insurance, as provided in Section 4.2(c) of the
Easement Agreement.
e) Tenant shall not be responsible for HHP's obligation
to reimburse Medistar for the constructions costs attributable to the
Parking Spaces under the circumstances described in the last paragraph
of Section 4.2 of the Easement Agreement.
This assumption of Landlord's obligations under the Easement Agreement shall:
i) Be effective for the entire term of the Lease and
any permitted extensions thereof; and
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ii) Extend to any assignee or sublessee of Tenant
pursuant to the Lease, whether or not such assignment or
subletting is in accordance with the provisions of the Lease.
The obligations of Landlord under the Easement Agreement which are not assumed
by Tenant under this Fourth Amendment shall remain solely the obligations of
Landlord and shall be deemed obligations of Landlord under the Lease. However,
the obligations of Landlord under the Easement Agreement which are hereby
assumed by Tenant shall not be deemed obligations of Tenant under the Lease and
the failure of Tenant to perform such obligations shall not be deemed a default
by Tenant pursuant to the Lease. Nevertheless, if Tenant fails to perform such
obligations ("Tenant's Default") and, as a result thereof, Landlord suffers a
loss or damages because Medistar pursues the remedies to which it is entitled
under the Easement Agreement because of Tenant's Default, against Landlord
instead of against, or in addition to, Tenant (by reason of Landlord remaining
liable under the Easement Agreement notwithstanding the assignment of
Landlord's rights therein as provided in Section 2 of this Fourth Amendment),
then Landlord shall be subrogated to Medistar's rights and shall be entitled to
seek the same remedies against Tenant for such loss or damage as Medistar was
or would have been entitled to seek against Tenant as a result of Tenant's
Default. Except to the extent, and only to such extent, of the obligations to
be performed by Landlord pursuant to Section 5 of this Fourth Amendment in the
event of a failure by Medistar to perform certain of its obligations under the
Easement Agreement, the obligations of Medistar under the Easement Agreement
shall not be deemed obligations of Landlord under the Lease, and the failure of
Medistar to perform such obligations shall not be deemed a default by Landlord
or Tenant pursuant to the Lease.
4. Substitute Parking. During construction of the Parking Structure by
Medistar pursuant to the Easement Agreement, Landlord shall provide substitute
parking for Tenant's Parkers, as follows:
a) Landlord shall prepare, or cause to be prepared, a design and
construction-level detailed plans for an additional thirty
eight (38) parking spaces to the Additional Surface Lot (the
"Additional Surface Lot Spaces"). Landlord shall construct,
or cause to be constructed, the Additional Surface Lot Spaces
at its sole cost and expense.
b) Until construction of the Additional Surface Lot Spaces is
complete and such Spaces are available for use by Tenant's
Parkers, Tenant's Parkers shall be entitled to use sixty (60)
parking spaces on the Surface Lot site closest to the
Premises, as indicated on Exhibit 1 attached hereto and by
this reference incorporated herein.
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c) Tenant's employees may at any time park free of charge in the
surface lot adjacent to the parking structure that services
the office building located at 0000 Xxxxxx Xxxxx Xxxx, as
shown on Exhibit 2 attached hereto and by this reference
incorporated herein.
d) If, before or after the Additional Surface Lot Spaces are
completed, the parking requirements of Tenant's Parkers exceed
the capacity of the Additional Surface Lot, Landlord shall,
at the request of Tenant and at Landlord's sole cost and
expense, provide valet parking service at the Additional
Surface Lot between the hours of 4 p.m. and 9 p.m. on
weekdays, or such additional time and with such number of
valets as is necessary to meet the requirements of Tenant's
Parkers. In addition, if the provision of the above-described
valet parking service does not satisfy the parking
requirements of Tenant's Parkers, Tenant's Xxxxxx'x may use,
free of charge, either the 0000 Xxxxxx Xxxxx Xxxx parking
structure or the Northpoint parking garage located at 0000
Xxxxxx Xxxxx Xxxx, as determined solely by Landlord, after
5:00 p.m. on weekdays and anytime on weekends and holidays.
In that connection, Landlord shall provide between the hours
of 5:00 p.m. and 9:00 p.m. on weekdays a continuous service
shuttle van for the purpose of shuttling Tenant's Parkers from
such parking structure or parking garage to the Club and vice
versa. Landlord shall pay for all reasonable costs associated
with such shuttle service.
e) Landlord shall cooperate with Tenant and promptly install
and maintain, at Landlord's expense, such signs as may be
reasonably required, from time to time, during construction,
to identify available parking and designate spaces to be used
by Tenant's Parkers, including any applicable overflow
parking.
During and after construction of the Parking Structure,
Tenant's Share of Operating Expenses relative to the Additional Surface Lot
Spaces shall, upon their completion, be one hundred percent (100%) because
Tenant shall be entitled to exclusive use of the Additional Surface Lot Spaces.
During construction of the Parking Structure, Tenant's Share of Operating
Expenses relative to the Surface Lot shall be zero percent (0%) for the sixty
(60) parking spaces described in subsection b) above notwithstanding Tenant's
Parkers' exclusive use thereof.
5. Loss of Use of Parking Spaces. If, from time to time, Tenant's
Parkers are unable to use readily any or all of the Parking Spaces and the
other HHP Easement Rights, then Landlord shall provide promptly, and at no cost
to Tenant whether as an Operating Expense or otherwise, substitute parking
within the Development equivalent in number to the Parking Spaces. If such
substitute parking is not located on or adjacent to the
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Additional Surface Lot (by, for example, expanding the capacity of the
Additional Surface Lot by up to an additional one hundred nine (109) parking
spaces including the Additional Surface Lot Spaces) or otherwise located within
two hundred (200) yards of the Premises, Landlord shall pay for the costs of a
continuous service shuttle van, its driver and all reasonable costs associated
with shuttling Tenant's Parkers from such substitute parking facility to the
Premises from time to time during Tenant's business hours as Tenant shall
reasonably require.
6. Eminent Domain Affecting HHP Easement Rights. If the HHP Easement
Rights are acquired during the term of the Lease by an entity having the power
of eminent domain and, as a result thereof, all or a portion of the Parking
Spaces are no longer readily available to Tenant's Parkers, then Landlord shall
provide promptly, and at no cost to Tenant whether as an Operating Expense or
otherwise, substitute parking within the Development equivalent in number to
the Parking Spaces that are no longer readily available to Tenant's Parkers.
If such substitute parking is not located on or adjacent to the Additional
Surface Lot (by, for example, expanding the capacity of the Additional Surface
Lot by up to an additional one hundred nine (109) parking spaces, including the
Additional Surface Lot Spaces) or otherwise located within two hundred (200)
yards of the Premises, Landlord shall pay for the costs of a continuous service
shuttle van, its driver and all reasonable costs associated with shuttling
Tenant's Parkers from such substitute parking facility to the Premises from
time to time during Tenant's business hours as Tenant shall reasonably require.
7. Valet Parking Option; Rights in Overflow Parking Facilities.
(a) If Landlord elects to provide the substitute parking required
pursuant to Section 5 or 6 of this Fourth Amendment, through the construction
of additional parking, and if, prior to the completion of such construction,
the parking requirements of Tenant's Parkers exceed the capacity of the
Additional Surface Lot, Landlord shall, at the request of Tenant and at
Landlord's sole cost and expense, provide valet parking service at the
Additional Surface Lot from time to time during Tenant's business hours and
with such number of valets as is necessary to satisfy the parking requirements
of Tenant's Parkers. In addition, if the parking requirements of Tenant's
Parkers exceed the sum of the substitute parking provided in Sections 5 or 6 of
this Fourth Amendment, and the capacity of the Additional Surface Lot
(including the thirty eight (38) parking spaces described in Section 4 a) of
this Fourth Amendment), then any additional Tenant's Parkers shall be entitled
to use the Overflow Parking Facilities designated by Landlord on the same terms
and conditions as is set forth in Section 37(a) of the Lease.
(b) If the parking requirements of Tenant's Parkers exceed, at any
time and for any reason, the other parking rights available in this Fourth
Amendment, then any additional Tenant's Parkers shall be entitled to use the
Overflow Parking Facilities
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designated by Landlord on the same terms and conditions as are set forth in
Section 37(a) of the Lease.
8. Superseded and Amended Sections of the Lease. The provisions of this
Fourth Amendment set forth the parking rights and privileges of Tenant with
respect to the Parking Structure and amend and supersede in their entirety the
provisions of Section 37(c) of the Lease. In addition, the term "Section 37"
in Section 55 of the Lease shall hereafter read as follows: "Section 37, as
amended by the Fourth Amendment To Lease." Sections 37(a) and 37(b) of the
Lease are hereby amended to read in their entirety as follows:
37. Parking.
(a) As required by the Work Letter, Tenant shall construct a
surface parking lot with appropriate landscaping, lighting and access from
Park Terrace ("Additional Surface Lot") which shall have the capacity for
parking at least one hundred forty-eight (148) vehicles and shall be located
across Park Terrace from the Premises. Tenant and Tenant's employees,
customers, members, guests, licensees, invitees and agents (collectively,
"Tenant's Parkers") shall be entitled to use the entire Additional Surface Lot
until such time as the Additional Surface Lot is demolished pursuant to
Paragraph 37(b) below. Any parking by Tenant's Parkers in the Additional
Surface Lot, any substitute parking facility pursuant to Paragraph 37(b) below,
and/or the "Overflow Parking Facilities" (as defined below) shall be free of
charge to Tenant's employees and free of charge to all other Tenant's Parkers
for the first two (2) hours, but thereafter shall be subject to a reasonable
hourly parking fee not to exceed the fee generally charged to other parkers;
any such fee for such other Tenant's Parkers shall be payable to Landlord with
respect to parking in the Overflow Facilities and shall be payable to Tenant
with respect to parking in the Additional Surface Lot and any substitute
parking facility pursuant to Paragraph 37(b) below. The maximum total number
of overflow parking privileges which Landlord shall be obligated to provide at
any one time in an Overflow Parking Facility(ies) shall be equal to the
difference between (i) an amount equal to ten (10) privileged per square foot
of Construction Area of the Building, less (ii) one hundred nine (109) plus the
capacity of the Additional Surface Lot (the "Parking Sum"). The term "Overflow
Parking Facilities" shall mean the parking facilities located on those three
(3) sites of the Development marked as "6701 Center Drive West," "Xxxxxxxxx
Plaza," and "Summa Tower" on the Xxxxxx Xxxxxx Center Site Plan attached to
this Lease as Exhibit "B".
(b) Landlord shall have the right to construct buildings
and/or improvements on the Additional Surface Lot at any time during the Term.
If Landlord so constructs buildings and/or improvements on the Additional
Surface Lot, Landlord must provide substitute parking on an alternate surface
lot or parking structure within the Development equivalent to the capacity of
the Additional Surface Lot. As a result, at all times during the Term, Tenant
shall be entitled to parking privileges
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equivalent to the Parking Sum. In the event that Tenant's parking privileges
are relocated as provided above in this Paragraph 37(b), during such relocated
period Tenant's Share of the costs and expenses of operation and maintenance of
the Additional Surface Lot shall not be included in Operating Expenses but
Operating Expenses shall include a reasonable allocation of the costs and
expenses of operation and maintenance of the alternate surface lot or parking
structure.
9. Entire Agreement. This Fourth Amendment and the Exhibits hereto
contain the entire agreement of the parties with respect to the subject matter
hereof, including the Easement Agreement. In the event of any conflict or
inconsistency between the terms and provisions of the Easement Agreement and
the Lease, as modified by this Fourth Amendment, the latter shall control.
10. Lease Remains in Effect. Except as provided in this Fourth Amendment, the
terms and provisions of the Lease remain in full force and effect.
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IN WITNESS WHEREOF, Landlord and Tenant have entered into this
Fourth Amendment as of the date first above written.
LANDLORD: XXXXXX XXXXXX PROPERTIES, LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: THE XXXXXX XXXXXX CORPORATION
(formerly known as Summa Corporation), a
Delaware corporation, its sole general partner
By: XXXX X. XXXXXXX
__________________________________________
Its: Executive Vice-President
_________________________________
TENANT: THE SPECTRUM CLUB COMPANY, INC.
a California corporation
By: /s/ D. XXXXXXX XXXXX
___________________________________________
D. Xxxxxxx Xxxxx, its President
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