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ES CenterCal, LLC - Amend #4924-1AC ,._ ,1 A ._ ......_ AMENDMENT NO.1 to the DUE DILIGENCE AND GROUND LEASE AGREEMENT Between the City of El Segundo, a General Law Municipal corporation ("Lessor") and ES CenterCal, LLC, a Delaware limited liability company ("wee") Dated February 2, 2016 This Amendment No.I to Due Diligence and Ground Lease Agreement (this "Amendment") is entered into this 20th day of December, 2016 by and between Lessor and Lessee. RECITALS I. Lessor and Lessee (collectively, the "Parties") entered into a Due Diligence and Ground Lease Agreement (the "Lease") on February 2, 2016. The Lease sets forth a number of deadlines for specific actions required to be taken by the Parties. The Parties now wish to extend some of these deadlines. Specifically, the Lease anticipates that it would take between 30 and 60 days for the parties to confer and resolve any issues regarding Title Documents. The Preliminary Report contained over 50 exceptions and the Parties would like to extend the deadline for dealing with the Title Documents to February 28, 2017. 2. The Lease contemplates that the Parties will have negotiated an extension to the License Agreement between the City of El Segundo as Licensee and Southern California Edison as Licensor, within 60 days. The Parties wish to extend this deadline to February 28, 2017. 3. The Lease gives Lessor 60 days to review and approve CenterCal's Guarantor's, TGI's and TGI's Subsidiary Guarantor's financial condition and ability to respectively guaranty the construction of the Premises Improvements, the Golf Couse Improvements, and the operation of the Premises during the Operating Period and to guarantee Rent payments through completion of the Operating Period as expressly required by the Lease and as set forth in the Topgolf Guaranties. The Parties wish to extend this deadline to November 30, 2016. 4. The Lease gives Lessor and Lessee 30 days from the Commencement Date to receive written confirmation from Chevron approving of the Premises Improvements and use of the Premises as contemplated by this Lease in a recordable form acceptable to Lessee in its sole and absolute discretion. The Parties wish to extend this deadline until the expiration of the Due Diligence Period. Page 1 of 6 9 5. The Lease requires Lessee to file an application for Required Project Entitlements with the City of El Segundo within 90 days. The Parties wish to extend this deadline to December 15, 2016. 6. Capitalized terms used but not otherwise defined'herein shall have the same meanings as set forth for such terms in the Lease. 7. The Parties desire to amend the Lease as provided herein. NOW, THEREFORE, in consideration of the foregoing, the Parties agree as follows: 1. Section 5.3 of the Lease is hereby amended to read as follows: "5.3 Title Due Diligence. At the Premises Turnover Date, the real property comprising the Premises must be free from all easements, encumbrances, or restrictions other than those set forth on Xzhibit„ `E', which will be finalized and attached hereto ys by p`ebruary 28.. 2017 (the "Permitted Exceptions"). Lessee at its option may procure an ALTA extended leasehold owner's policy of title insurance from Chicago Title Insurance Company (the 'Title Company" or "Escrowee") which policy must be free and clear of any exceptions or objections other than the Permitted Exceptions (the "Title Policy"). The Lessor shall have no obligation to take any action to remove any exceptions or objections that the Title Company may place on the Title Policy. The cost of a standard leasehold title policy and/or the Title Policy shall be bome by Lessee. Lessee shall use reasonable efforts to cause the Title Company to deliver to Lessee a Preliminary Report issued by the Title Company covering the Premises (the "Preliminary Report"), together with true and legible copies of all documents evidencing matters of record shown as exceptions to title thereon ("Underlying Documents") as soon as practicable after the Commencement Date. The Preliminary Report and Underlying Documents shall hereinafter sometimes be collectively referred to as the "Title Documents". Lessee shall have the right to object to any exceptions contained in the Preliminary Report, in Lessee's sole and absolute discretion by giving written notice to Lessor within fifteen (15) business days after Lessee has received the Title Documents. Lessee shall have the right to object to any matters revealed by the Survey (as defined below) by giving written notice to Lessor within fifteen (15) business days after Lessee has received the Survey. Lessee has provided Lessor with a letter dated March 7, 2016 objecting to certain exceptions contained in the Preliminary Report. In the letter, Lessee also advised Lessor that Lessee had ordered, but not yet received, the Survey, and Lessee reserved the right to modify or supplement its objections to title based upon the Survey (the "Title Disapproval"). Lessor shall have the option until 5:00 p.m. on a ruary2_L 20 2 to elect in Lessor's sole and absolute discretion by written notice to Lessee ("Lessor's Title Response") to (i) cure or remove such disapproved matter(s) on or before the Premises Turnover Date or (ii) not cure some or all of such disapproved matters, in which case Lessee may, by written notice to Lessor within the later of: (a) five (5) business days after Lessor's Title Response, or (b) February 28, 2017, elect to waive this contingency or terminate this Lease (in which event the Parties shall have no further obligations to one another except with respect to the obligations that survive the termination of this Lease). Lessor's failure to timely notify Lessee of its election aforesaid shall conclusively be deemed to be Lessors' election not to cure any objection. If Page 2 of 6 4924—IA- Lessee 924-„ Lessee elects not to terminate this Lease as provided above, Lessee agrees that the matters expressly approved or waived by Lessee in writing shall be added and be attached to this Lease as & 1 itas the "Permitted Exceptions"). Notwithstanding the above, Lessor shall have no obligation to take any action to remove any exceptions or objections that the Title Company may place on the Title Policy, whether or not Lessee disapproves such matters. Lessee's approval of the Preliminary Report shall be without prejudice to Lessee's right to disapprove the "Survey" (defined below) as provided above, or any supplementary reports issued by Title Company except those that arise after the Premises Turnover Date. The cost of a standard leasehold title policy and/or the Title Policy shall be borne by Lessee. Within five (5) business days after the Commencement Date, Lessor shall provide Lessee with a copy of any existing ALTA survey of the Real Property in Lessor's possession, if any (the "Existing Survey"). Lessee shall be responsible, as its sole cost and expense, for thereafter obtaining and paying for any update to the Existing Survey ("Survey") to meet the requirements of Lessee or its lender for the Title Policy." 2. Section 5.5 of the Lease is hereby amended to read as follows: "5.5 Conditions Precedent, The following shall be conditions precedent to the Premises Turnover Date and commencement of the Basic Term hereunder (items (i) through (xiv) shall be collectively referred to as the "Conditions Precedent"): (i) (A) Lessee filed an application by December 15, 2016 for the Required Project Entitlements which Required Project Entitlements the City Council may in its sole and absolute discretion either approve or disapprove and (B) prior to the end of the Due Diligence Period, Lessee has obtained such Required Project Entitlements; (ii) Lessee has prepared and the City has approved final building plans for the Golf Course improvements and the Premises Improvements (collectively, the "Plans and Specifications"), which Plans and Specifications for the golf Course Improvements shall be approved by Lessor if they are consistent in all material respects with the description of the Golf Course Improvements described on Exhibit "D" ,and all zoning and building and safety laws and regulations, and for the Premises Improvements that shall be approved by the City if they ere consistent in all material respects with the Prototype Facility and all applicable zoning and building and safety laws and regulations; Lessee shall cause the City to be named as an additional insured under the certificate(s) of insurance issued by the architects and design professionals responsible for preparing the plans for the Golf Course and Premises Improvements; (iii) Lessee has entered into construction contracts consistent with this Lease, for the completion of the Golf Course improvements on Exhibit I'D" hereto, and Topgolf has entered into construction contracts consistent with this Lease, for the completion of the :Prenniscs Improvements as described and depicted on+' , b1�"' hereto but such shall not relieve Lessee as being obligated for completing such improvements and Lessee shall cause the City to be named as an additional insured under the certificate(s) of insurance issued by the contractor(s) for construction of the Golf Course Improvements and Premises Improvements, (iv) Lessee has entered into a Sublease of the Premises with Topgolf EI Segundo that requires Topgolf to operate the Premises for at least seven (7) years in accordance with the Continuous Operation Requirement (the "Operating Period"); (v) Lessee has delivered within ten (10) business days following the expiration of the Due Diligence Period written notice to Lessor that it desires to have this Lease become effective ("Due Diligence Acceptance Notice"); (vi) Lessor and Lessee Page 3 of 6 have obtained, by February 28, 2017, an extension to the License Agreement in a form acceptable to the Lessor and. Lessee in their respective sale and absolute discretion; (vii) Lessee has received written confirmation from Chevron USA, Inc., a Pennsylvania corporation ("Chevrm"), prior to the expiration of the initial twelve month portion of the flue Diligence Period set forth in Section 5.1, plus, if applicable, the one hundred fifty day extension period, approving of the Premises Improvements and use of the Premises as contemplated by this Lease in a recordable form acceptable to Lessee in its sole and absolute discretion); however, such approval from Chevron may not impose any obligations on the City or on the Property but may place obligations on the Lessee and the Premises during the term of this Lease which arise from Lessee's use of the Premises; (viii) Lessor has in its sole and absolute discretion determined by November 30, 2016 that the CenterCal Guarantor has sufficient financial strength to guarantee the construction of the Golf Coarse Improvements,, TGI has sufficient financial strength to guarantee construction of the Premises Improvements, and TGI Subsidiary Guarantor has sufficient financial strength to guarantee the operation of the Premises daring, the Operating Period and to guarantee )tent payments through completion of the Operating Period as expressly required by this Lease, together with all amendments hereto, and as set forth; in the Topgolf Guaranties, in the event that despite Lessor's efforts as set forth above, the financial review of the CenterCal Guarantor and the Topgolf Guarantors cannot be completed by November 30, 2016, Lessor shall notify Lessee and the period shall be automatically extended for an additional 30 days; (ix) (A) TGI shall have executed the Guaranty for the Premises Improvements in the form attached hereto as Exhibit "H" and delivered such to the Lessor and TGI Subsidiary Guarantor shall have execute a guaranty for the operation of the Premises during the Operating Period and to guarantee lent payments through completion of the Operating Period in the farm attached hereto as Exhibit "H" and deliverer) such to the Lessor, and (l3) the CenterCal Guarantor shall have executed the Guaranty in the form attached hereto as Exhibit "H" and delivered such to Lessor (Delivery of these Guaranties shall also constitute performance of Condition Precedent itern (iv); and neither the Topgolf Guarantors nor the CenterCal Guarantor shall have withdrawn such Guarantees within five (5) business days as set forth ire Section 5.5 of this Lease; in addition, all guarantees shall extend to, cover, and include all relevant obligations set forth in or modified by any subsequent amendments to this Lease); (x) Lessee shall have entered into an irrevocable license with the Lessor that grants the Lessor ingress and egress to and from the parking lot located on the Premises and the tight to use seventy (70) parking spaces on the parking lot on the Premises and provides that up to thirty (0) of such seventy (70) parking spaces will be marked with approprlate signage to indicate that they are to be used exclusively by the patrons of the Golf Course during the Goll" Course's hours Of operation a, provided in + ibis ("Parking License"); (xi) Lessor and Lessee have entered into an Access Agreement granting Lessee the right to have access to the Golf Course to construct the Golf Course ( ) Improvements; torr 1,essee shall have prepared at its expense by F b jgLy 28 0 7, p � the legal descriptions for E%hibits A-1" and "A-2" for Lessor's approval, and (xiii) Lessor and Lessee shall have agreed upon the Land "value (as defined in Section 17.2.1, l hereof) in their respective sole and absolute discretion by Fbr r gy 28 2t and, (xiv) provided Topgolf has received all necessary permits and approvals to commence construction of its Topgolf facility upon the Premises, Lessee shall deposit four hundred thousand dollars ($400,000) into an escrow account with the J'itle Company (""Escrow Holder") and entered into an escrow agreement (the "Escrow Agreernent" )with Lessor and Escrow Holder solely for the purpose of funding a portion of the cost to pu °chase and install lights on the golf course on the Property for Page 4 of 6 the purpose of allowing golf to be played on the golf course during twilight and after sunset hours. The Escrow Agreement shall provide that if the City shall not have installed lights on the golf course within five (5) years from the date of the Escrow Agreement, then the funds shall be promptly returned to the Lessee. Notwithstanding any provision hereof to the oontrary, the parties agree and acknowledge that in connection with obtaining the Required Project Entitlements Lessee will obtain a parking study from a third party consultant. In the event that such parking study reveals that the parking requirements for the Golf Course and the Premises require an adjustment of the total number of parking spaces needed for the Golf Course or that. providing Lessor with thirty (30) "elusive parking ,spaces during the Golf Course's hours of operation as described in clause (x) hereof is incompatible with the Permitted Use and Lessor's use of the Golf Course, then prior to the end of the ,Due Diligence period, the parties shall work. together to modify the Parking License (and the number of parking spaces and exclusive puking spates granted thereunder) in such a manner so as to be compatible with the Permitted Use and the Lessor's operation of the Golf Course" 3. Section 12.2 of the Lease is hereby amended to read as follows: "12.2 Lessor and Lessee shall meet and attempt to agree on a plan, including but not limited to addressing any and all construction, operational and liability issues, that would result in keeping the Golf Course, or portions thereof, open for business during the construction of the Golf Course 1nipmvements and the Premises Improvements, and Lessee shall be entitled to retain fifty percent (50%) of any net revenue resulting from the Golf Course operations for the period commencing on the Premises "Turnover Date and ending on the Fixed Rent Commencement Bate or until the Golf Course Improvements are completed and the Golf Course is capable of being operated In accordanoee with Section 4.1 of this Lease before the expiration of such ten month period.. Notwithstanding the foregoing Lessee shall retain in its sole and absolute discretion Abbe absolute and unconditional right to shut down the Golf Course operations or portions thereof at any time during, the period commencing on the Promises Turnover Date and ending on the 'Fixed Rent Commencement Elate. Within M days after the Common meat Date, Lessee shall deliver to Lessor the conceptual Goll` Course Improvement Plans and Specifications for Lessor's approval as provided in Section 5.41 of this e," 4. Exhibit "D" to the Lease is hereby amended. The amended Exhibit "D" is attached hereto and is dated November 2, 2016. S. Except as modified by this Amendment, all other germs and conditions of the Lease shall remain the same. 6. This Amendment may be executed in counterparts each of which shall be deemed an original. 7. Subject to the limitations set forth in Section 18of the Lease, the covenants and agreements contained in this Amendment shall bind and inure to the benefit of Lessor, its successors and assigns, and Lessee, its successors and assigns. Page 5 of 6 IN WITNESS WHEREOF, Lessee and Lessor have caused this .Amendment to be executed by their duly authorized representatives as of this 20th day of December, 2016. Lessor: THE CITY OF EL SEGUNDO, a general law City and Municipal orporad By:. Name: Ore err, City Manager Attest: Tr y, er,,, ity Clerk Approved as Form: Mark D. Hensley, City Attorney By: Gregg Kovacevich Lessee: ES CENTERCAL, LLC, a Delaware limited liability company By: CENTERCAL, LLC, a Delaware limited liability company By: CENTERCAL ASSOCIATES, LLC, a Dela are limited Iiabili company By Print l e Print Ti 'e: Its Manager Page 6 of 6 4924 - Exhibit D GOLF COURSE AND PREMSIES IMPROVEMENTS GOLF COURSE IMPROVEMENTS Lessee and a Task Force appointed by the City Council shall work together and reasonably cooperate for purposes of preparing a preliminary and conceptual design of the following golf course and clubhouse improvements to be presented to the City Council for approval consistent with the Lease provisions. The final design shall be consistent with the conceptual design. During the course of design and ultimate construction, a "standard of quality" shall be maintained throughout the newly constructed facility as mutually agreed upon by both parties. The use of the word "Quality" in this agreement is intended to mean that the building, building materials and furnishings shall convey design interest and coordination, craftsmanship and use of durable and visually attractive finishes and materials. With respect to the design of the improvements to the course itself, "Quality" is intended to mean that, in consultation with an approved golf course architect, the safety of the facility shall be maintained or improved, that the level of difficulty in playing the course shall be maintained or improved. In both the case of the buildings and the course improvements, the City's intent is that they shall be of the same, or better quality than what currently exist. This exhibit contains photos of the existing facility as examples of the current level of quality. The facility is intended to be in "turn -key" condition at the time of completion meaning that the Lessee shall provide a facility that is furnished and ready for operations. ➢ Construction of new pro shop at approximately 2,500 square feet interior usable/ lease able area. Detailed below are some of the key building improvements anticipated: o Facility Generali - Facility shall include a security camera system that provides surveillance of the interior and exterior of the facility to the satisfaction of the ESPD. o Lini ted Golf Shop, Area Starter Desk - The newly constructed structure shall contain a segregated area for a pro -shop and starter/check-in desk as one combined unit. Generally, this facility will be equipped with sufficient desk space to facilitate placement of a computer, phone and cash register with desk space providing glass surfaces such that display shelving is readily accessible by employees and for display of soft goods as a part of pro -shop operations. This facility will include internet and phone cabling along with standard electrical outlets installed as provided for in the latest version of the California Building and Electrical Code. Shelving will be installed along the walls of the facility in sufficient footage to provide for display of basic retail items consistent with a golf pro -shop. Behind the main desk area, a small room accessible by a standard door shall provide sufficient space for storage of basic retail goods. o Restroorns - separate male and female restrooms, fully ADA compliant to specifications that are current as of construction year. Restrooms shall contain the amount of fixture units consistent with city code and capacity of the facility and be consistent with the existing clubhouse (including installation of soap dispensers, hand drying devices and trash enclosures). Restrooms shall be accessed from the interior & patio area of the newly constructed facility. 0 1" ana gement Office - within the described (structure) a separate office for management operations shall be included. This office shall include a door and wall safe as required by current permitting policy. o af,6/ liar with seating . area - The facility shall be sufficiently constructed to include wiring for sound and wi-fi capabilities. Additionally, televisions of sufficient size (55") shall be included and mounted on the interior and potentially on the exterior patio areas. Exterior television equipment shall be constructed with exterior placement/ waterproof integrity. Indoor snack bar portion of facility shall consist of sufficient square footage to maintain and operate a small commercial kitchen with equipment such as commercial grade reach -in freezer and cooling units, a three compartment sink, mop closet, griddle (with grill), microwave and fryer. New facility shall also contain sufficient space for and include an ice making machine and soft drink dispenser (typically vendor provided). All equipment shall be included and will be further outlined through the collaborative efforts with the Taskforce during the design process. A bar with sufficient beer taps and spacing for refrigeration of the same number of kegs (minimum 5). Dining area should be able to accommodate 20-30 guests and in accordance with established LA County Health Department guidelines. o To the extent practical all equipment that is in good re )a.ir at the existing facility,n.ot -past its useffil life shall be utilized and installed at the new facility. o Outdoor patio space with seating area - Outdoor space shall include hard floor surfaces (i.e. concrete or other approved material) and maintain position directly adjacent to the snack bar entry. Generally this will be at least 750 square feet with some or all the area covered. The Covered outdoor area shall be of sufficient size to accommodate adequate seating for 15-20. The balance of outdoor dining area (which may not be covered) shall accommodate seating for at least an additional 20-35 This area shall also be equipped with appropriate space heaters, lighting and outdoor furniture/ seating. ➢ Construction of a practice putting green and practice chipping/bunker area with the putting green surface area being no less than 4,500 square feet with the intent being that the area shall be the maximum allowable by the physical constraints of the site. Prior to construction, the existing putting green surface area shall be given sole and exclusive priority to the golf course putting green. Any remainder putting green may be utilized as a putting green within the TopGolf site. ➢ Screening poles and safety netting will be installed to ensure the safety of golfers, the public, automobiles, and surrounding properties and rights of way per golf course architect recommendations ➢ Golf course modifications: o Upon completion of construction, the golf course with described improvements shall maintain or increase in degree of difficulty compared to its current condition. The approved Golf Course Architect shall provide an assessment of difficulty of the course before and after; Lessee will maintain and or improve the difficulty of the golf course. o The overall final design of the golf course after modifications shall maintain a level of safety consistent or safer than existing conditions. For the purposes of determining golf course safety, the golf course architect will determine the degree of safety through the use of industry -accepted guidelines including dispersion analysis and assumptions that 90% of golf shots are within 14 degrees from the intended target line in any given golf hole. o The course shall have a minimum of one Par 4 hole. While no specific definition has been established in yardage for distinguishing a range for a Par 4 hole, effective length as defined by the USGA in conjunction with consultation by a golf course architect shall prevail; In general, a Par 4 is considered to maintain yardage with a range of 230-270 yards. In developing yardage, the Lessee and City will maintain an objective approach while providing flexibility. o Construction of new Hole #2 green and bunkers. o Construction of new Hole #3 green, bunkers and tee box. o Construction of new Hole #9 green, bunkers, and tee box. o Where possible, the existing tee boxes shall be leveled and lengthened. Lessee shall make every effort (within the project scope and budget) in consultation with an approved golf course architect (approved mutually by the Lessee and City), to expand tee boxes. The intention of this effort is to increase yardage from tee boxes to holes to achieve the yardage for a nine hole course within the footprint as possible. The total current yardage of play for the existing nine -hole course is approximately 1,340 yards from the white tee line (Men's). o Lessee to add bunkers and/or sand traps to the north side of hole number 8 with the intention of increasing speed of play. Placement, sizing and number of bunkers and/or sand traps will be based upon approved golf course architect recommendations. o When possible, Lessee shall utilize existing and available poles and netting not otherwise repurposed by TopGolf project. X 24 - 1A m o Hole #3 will be redesigned in such a fashion to maintain a minimum Par 3 and incorporate the northern body of water feature. PREMISES IMPROVEMENTS • Prior to disposal of the existing Pro Shop and Restaurant roof surfaces, further direction shall be given to the disposal or repurposing of the copper roof. Direction may come from the assigned Taskforce or directly from the City Council in a timely manner. • Construction of the Top Golf Driving Range and Facility approximately 40,000 SF of indoor area and 20,000 SF of outdoor hitting bays which shall be substantially similar to the Top Golf Prototype Facility defined in the Lease with regard to construction materials, quality, type and size and facilities. Attached are pictures of the Prototype Facility. o Replacement/ relocation of the existing net poles with the Top Golf required poles, which will adhere to all building and safety codes, SCE safety standards and other applicable safety standards. Any/ all poles not specifically used in the construction of the TopGolf facility shall be repurposed, to the extent possible, for the golf course modifications. • Expansion of the existing parking which shall extend over the area where Hole #1 is currently located on the golf course and provide adequate parking per city code. During the design process, the City shall determine the number and location of parking spaces that will be reserved (during the hours of operation of the Lakes) for patrons of the Lakes golf course, consistent with Section 5.4 of this Lease and subject to the terms and conditions of the approved Required Project Entitlements (as defined in the Lease). Should parking conflicts arise after the commencement of joint use of the parking facility, the City and the Lessee shall mutually cooperate and work together to implement parking control measures to further reserve parking spaces by use of patrons of the Lakes.