ES CenterCal, LLC - Due Diligence and Ground Lease Agreement #4924-1Agreement No. 4924-1
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
(as "Lessee")
Dated February 3, 2016
Agreement No. 4924-1
TABLE OF CONTENTS
Page
Section1.
Demise...........................................................................
2
Section 2.
Lease Term.............................................................
2
Section3.
Rent ....... ............................................ ..........M, .............
3
Section4.
Use...............................................................................
4
Section 5.
Due Diligence; Condition of Premises . . . . . ..... . .......... . .............. ..
5
Section6.
Liens............................................................................
11
Section 7.
Utilities, Taxes, and Other Charges ..... . ........................ , ...........
12
Section 8.
Insurance........................................................................
14
Section 9.
Lessor's Right to Perform Lessee's Covenants ...........................
16
Section 10.
Compliance with Legal Requirements .... . . . .. . . ...... . ... . .. . . . < .. , .......
16
Section 11.
Operation, Repairs and Maintenance .......................................
19
Section 12.
Development of the Golf Course Premises; Premises Improvements.
20
Section 13.
Title to Improvements........................................................
22
Section 14.
No Waste........................................................................
22
Section 15.
Inspection and Access.........................................................
22
Section 16.
Lessor's and Lessee's Exculpation and Indemnity ............. . ... . ......
22
Section 17.
Condemnation.........................<,,....,....,,,.........,<,...,.......,,
24
Section 18.
Assignment and Sublease ........ . ....... . .. . . . . . . . ............ . .. . ....... . ..
26
Section 19.
Lessor Default; Remedies ........ . .... . ........................ . ..... . ......
28
Section 20.
Lessee Default; Remedies ....................... . . ......... . . ....... . .......
28
Section 21.
No Abatement of Rent; Encroachments ................. . ............. . ...
30
Section 22.
Leasehold Mortgages ...... . . . ... . ........ . . . .................. . ..............
31
Section 23.
Lessor's Right to Encumber ..................... . .. . ....... . .... . ...........
33
Section 24.
Nonmerger.....................................................................
34
Section 25.
Quiet Enjoyment . .... . ......................... . ..... . . . .... .... , , ..
34
Section 26.
Surrender......................................................... . ..... . .. . .....
34
Section 27.
Invalidity of Particular Provisions ............ . .. . .. . .......................
35
Section 28.
No Representations ..... . ... . . ................................................
35
Section 29.
Estoppel Certificate.................................................... . .. . ...
35
Section 30.
Force Majeure.................................................................
35
Section 31.
Notices..........................................................................
35
Agreement No. 4924-1
Section 32.
Venue ,,.,,..................................................
38
Section 33.
Entire Agreement ........... ..................... .... — ...... ,.,,.,,,,..,.,,
38
Section 34.
Applicable Law - ...... . . . .............................. , . , . , , ... , ............
39
Section 35.
License Agreement ..........................................................
39
Section 36.
Late Charge .....................„,,.......,..,..,...,,...,,.................
39
Section 37.
Nonwaiver....................................................................
39
Section 38.
Brokerage ................ ....................,,,.,..........,...,,.,,..,.....
40
Section 39.
Miscellaneous Provisions .... . . ..... . . - - .................... , . , . , ........
40
Section 40.
Covenants to Bind and Benefit Parties . ...... . ... . .. . . .. . . „ , , , , . , .... , ....
40
Section 41.
Captions and Table of Contents .......... . ......... . . . . . . . . . . . . . ... . . . . . ...
40
Section 42.
[Intentionally Omitted]......................................................
40
Section 43.
Hazardous Materials ............... ,......,,,,.,,,......... ,.......... ,...
41
Section 44.
Counterparts ...... .................... ....... ...... ............. ,....,....d..
41
Section 45.
Consent and Approval Rights .......... . ... . ... . .. # ....... , , ..... , , . , . , , .. ,
41
Section 46.
Prevailing Wages .......................... . „........... . , , . .... , . , .. , , . , ....
41
Section 47.
Golf Course.................................................................
41
Agreement No. 4924-1
DUE DILIGENCE AND GROUND LEASE AGREEMENT ("LEASE")
Date: February 3, 2016 (the "Commencement Date")
Lessor: THE CITY OF EL SEGUNDO, a general law City and municipal corporation
("Lessor").
Lessee: ES CENTERCAL, LLC, a Delaware limited liability company
("Lessee").
Guarantors: CenterCal, LLC, a Delaware limited liability company
("CenterCal Guarantor")
TopGolf International, Inc. a Delaware corporation ("TGI") for the construction
of the Premises Improvements and a wholly owned subsidiary of TGI ("TGI Subsidiary
Guarantor") for the Operating Period
("collectively, Topgolf Guarantors")
RECITALS
A. Whereas Lessor owns or is the Licensee of certain real property in the City of El
Segundo, County of Los Angeles, State of California, more particularly described in Exhibit
"A" the -"Property"J attached hereto and by this reference incorporated herein and delineated
on the Site Plan attached hereto as Exhibit "B" and by this reference incorporated herein. A
portion of the Property consists of that certain real property in the City of El Segundo, County of
Los Angeles, State of California, more particularly described in Exhibit "A-1" attached hereto
and by this reference incorporated herein and delineated on the Site Plan (the "Premises"). Also
attached hereto as Exhibit "B-1" is a current preliminary Site Plan for the golf course and
related improvements (the "Golf Course"), more particularly described in Exhibit A-2, which
makes up a portion of the Property but is not part of the Premises. A portion of the Property is
subject to that certain License Agreement dated June 24, 1991, by and between Southern
California Edison as "Licensor" and the Lessor as Licensee, a copy of which is attached hereto
as Exhibit "C" attached hereto and by this reference incorporated herein (the "License
Agreement"); and,
B. Whereas subject to all of the Conditions Precedent and other terms and conditions
of this Lease, Lessor desires to lease the Premises to Lessee and Lessee desires to lease the
Premises from Lessor and to sublease the Premises to TopGolf USA El Segundo LLC, a
Delaware limited liability company ("Topgolf El Segundo") for the purpose of operating a
commercial driving range, full service restaurant, clubhouse, and event space (herein called the
"Sublease") and Lessee wishes to lease the Premises from Lessor, for such use subject to all of
the Conditions Precedent and other terms and conditions of this Lease; and,
Agreement No. 4924-1
C. Whereas Lessee shall be making certain improvements to the Golf Course ("Golf
Course Improvements") and the Premises ("Premises Improvements") for the benefit of
Lessor and Lessee as described on Exhibit "D" attached hereto and by this reference
incorporated herein; and,
D. Now Therefore Lessor and Lessee enter into this Lease based on the terms and
conditions hereinafter set forth. For purposes of this Lease, Topgolf Guarantors and Topgolf El
Segundo are sometimes collectively referenced as "Topgolf').
TERMS
Section 1. Demise
Lessor and Lessee hereby enter into this Lease for purposes of allowing: Lessee to
perform due diligence on the Property; and to provide an opportunity for the parties to
potentially satisfy the Conditions Precedent. Upon the Premises Turnover Date Lessor shall
lease the Premises to Lessee, and Lessee shall lease the Premises from Lessor, upon the terms
and conditions set forth in this Lease.
Section 2. Lease Term
2.1 The "Basic Term" of this Lease shall begin and the Lessee's leasehold interest
shall become effective when all of the Conditions Precedent have been satisfied, Lessee has
delivered the Due Diligence Acceptance Notice, and neither the CenterCal Guarantor nor the
Topgolf Guarantors have withdrawn their Gtjarantees as provided in Section 5.6 hereof
("Premises Turnover Date"), and shall end on the twentieth (20th) anniversary of the Premises
Turnover Date. The Basic Term shall also be referred to herein as the "Initial Term". The
parties agree to execute and record a memorandum of an addendum to this Lease setting forth the
Premises Turnover Date. While the terms "Lease", "Lessor" and "Lessee" are used throughout
this agreement/Lease, the Lessee shall not be deemed to have a leasehold interest in the Premises
until the Premises Turnover Date.
On the Premises Turnover Date, Lessor shall deliver to Lessee, in conformance with all
applicable laws, and except as otherwise explicitly provided herein exclusive possession and
control of the Premises in its "AS IS" condition except it shall be free of any and all occupants,
liens, encumbrances, and security interests except for non -delinquent real estate taxes, the
Parking License, the License Agreement and the Permitted Exceptions as shown on Exhibit "E."
2.2 Lessee shall have six (6) successive options to extend the term of this Lease, each
for a separate additional period of five (5) years (each, an "Option Period"), from the date upon
which such term would otherwise expire, provided that Lessee shall be entitled to exercise an
Option Period only if at the time of exercise Lessee is in compliance with all of the material
terms of this Lease, including but not limited to all Rent payments being current and the
Premises being open to the public and operating as a driving range with food/beverage service.
However, to the extent Lessee has received a default notice from Lessor and is diligently curing
a default in accordance with Section 20 hereof, this Lease shall not be extended until such time
as the default is cured and then the term may be extended. If Lessee does not cure such default
within the time periods set forth in Section 20 hereof then Lessee shall forfeit the extension
Agreement No. 4924-1
rights set forth in this Section. Subject to the above limitations, unless Lessee gives Lessor at
least six (6) months prior written notice of its intent not to exercise an Option Period to extend
this Lease, this Lease shall automatically be extended for an additional five (5) year term. Each
such extension shall be upon and subject to the same terms, covenants and conditions as those
herein specified except that Lessee may not again exercise any previously exercised option under
this section.
The words "Lease Term, term of this lease", "the term hereof', or words of like import
shall be deemed to refer to the Initial Term of this Lease provided for in Section 2.1 hereof
together with any extension or renewal thereof which shall become effective pursuant to the
provisions of this Lease or by reason of the exercise of an option or right granted hereunder.
Section 3. Rent
3.1 Lessee covenants and agrees to pay to Lessor, promptly when due, without notice
or demand and without deduction or setoff of any amount whatsoever unless otherwise
specifically provided in this Lease, the following amounts: (a) the amount of Eighteen Thousand
and No/100 Dollars ($18,000.00) per month ("Initial Rent") from the Premises Turnover Date
until the "Fixed Rent Commencement Date" (as defined in Section 3.2), not to exceed One
Hundred Eighty Thousand and No/100 Dollars ($180,000) in the aggregate, and (b) the amount
of Forty -Three Thousand Seven Hundred Fifty Dollars ($43,750) per month ($525,000 per
year) as rent for the Premises from the Fixed Rent Commencement Date through the end of the
Lease Term, except as increased as specified below (the "Fixed Rent"). In addition to the Fixed
Rent, Lessee shall pay to Lessor: (i) for each calendar year during the term of this Lease, an
amount equal to three percent (3%) of the Gross Receipts from all beverages (alcoholic and non-
alcoholic) sold on the Premises during the applicable calendar year ("Variable Rent"); and (ii)
its pro -rata share of the consideration payable under the License Agreement as and when
required by the License Agreement based upon the land area of the Premises located within the
area subject to the License relative to all of the land area of the Premises and the Golf Course
located within the area subject to the License. The obligation of Lessee to pay Fixed Rent,
Variable Rent and other sums hereunder may be satisfied by any person or entity making
payment of Fixed Rent, Variable Rent or other sums to Lessor as hereinafter provided. The term
"Gross Receipts" wherever used in this Lease shall mean the aggregate amount of sales
(whether for cash, on credit or otherwise) of all alcoholic and non-alcoholic beverages made and
rendered on the Premises in connection with the business operation conducted on the Premises,
but shall not include any federal, state, municipal or other sales, value added or retailer's excise
taxes paid or accrued„ regardless of whether such taxes are collected from customers or absorbed
, sales to employees, complimentary sales, donations for charitable events, discounts afforded
customers from the redemption of coupons, fees paid to credit card issuers and processors, bulk
and/or intercompany transfers of inventory (provided no such transfer is made to avoid liability
to Variable Rent), or alcohol beverage license fees (if any).
Within one hundred (120) days after the end of each calendar year following the Variable
Rent Commencement Date (defined in Section 3.2 below), Lessee shall deliver to Landlord a
written statement setting forth the amount of Gross Receipts for the preceding calendar year.
Simultaneously with the delivery of such statement, Lessee shall pay to Landlord the Variable
Rent shown by such statement to be then due and owing. In computing the Variable Rent for the
Agreement No. 4924-1
first calendar year following the Variable Rent Commencement Date, if such calendar year shall
contain less than 365 days, then the Variable Rent shall be multiplied by fraction, the numerator
of which shall be the number of days in such shorter calendar year, and the denominator of
which shall be 365.
3.2 The first installment of Initial Rent shall be payable on the Premises Turnover
Date in a pro -rata amount based upon the number of days remaining in the month. The first
installment of Fixed Rent shall be payable from the earlier of (i) the date that the Premises opens
to the public for business or (ii) ten (10) months following the Premises Turnover Date, subject
to Force Majeure as defined in Section 30 and delays caused by Lessor (the "Fixed Rent
Commencement Date"). All Rent (other than Variable Rent) from and after the Fixed Rent
Commencement Date shall be paid in advance, on the first day of each month. Upon termination
of this Lease, Rent payable for less than a full month shall be paid in a pro -rata amount based on
the number of days that the Lease was in effect for the month. The obligation to pay Variable
Rent shall commence on the third anniversary of the Fixed Rent Commencement Date
("Variable Rent Commencement Date"). Within ninety days of the termination of this Lease,
Lessee shall pay to Lessor all Variable Rent payments owed to the Lessor based upon the
payments being made in arrears. This agreement shall not be construed as giving Lessor any
partnership or other interest in Lessee's or Topgolf s business. It is understood and agreed by
Lessor that there has been no representation of any kind whatsoever made by Lessee or Topgolf
as to the amount of Gross Receipts which may or shall be made from the Premises during any
year of the term of this Lease.
3.3 The Fixed Rent shall, for the first five (5) years following the Fixed Rent
Commencement Date, increase at the commencement of Years 2, 3, 4, 5, and 6 by two percent
(2%) and at the commencement of each five-year period thereafter (i.e., Year 11, Year 16, Year
21, etc. (assuming the term of this Lease has been extended)), the Fixed Rent shall increase by
ten percent (10%) (which shall include any Option Periods that may be exercised by Tenant).
3.4 All amounts payable under Section 3.1 above, as well as all other amounts
payable by Lessee to Lessor under the terms of this Lease, shall be paid at the address of Lessor
set forth in Section 31.1, or at such other place within the continental limits of the United States
as Lessor shall from time to time designate by written notice to Lessee, in lawful money of the
United States, which shall be legal tender in payment of all debts and dues at the time of
payment.
3.5 It is intended that the Initial Rent, the Fixed Rent, the Variable Rent and any
Additional Rent provided for in this Lease (together "Rent") shall be an absolutely net return to
Lessor throughout the Lease Term, free of any expense, charge, or other deduction whatsoever,
including all claims, demands, or setoffs of any nature whatsoever, except as otherwise explicitly
provided in this Lease.
3.6 Except as may be provided in this Lease, Lessee shall also pay without notice and
without abatement, deduction, or setoff, as "Additional Rent," all sums, impositions, costs, and
other payments that Lessee in any of the provisions of this Lease assumes or agrees to pay, and
in the event of any nonpayment, but subject to the terms and provisions of this Lease and all
Agreement No. 4924-1
applicable laws, Lessor shall have (in addition to all other rights and remedies) all the rights and
remedies provided for in this Lease or by law or equity in the case of nonpayment of the Rent.
Section 4. Use
4.1 Notwithstanding any other provision of this Lease, Lessee may only use the
Premises, and the Premises Improvements, for a driving range and related clubhouse with
restaurant, bar, lounge, grill and event space, subject to the provisions of Section 4.2 (the
"Permitted Use"). Lessee shall not be permitted to conduct any of the driving range or
clubhouse operations on the Premises until the Golf Course Improvements described in Exhibit
"D" are substantially completed (which for purposes hereof means that the Golf Course
Improvements are completed subject to minor alterations or corrections, that is, "punch list"
items and that the nine -hole course, clubhouse, pro -shop and bathrooms are capable of being
open for business) as reasonably determined by Lessor. Lessor acknowledges and agrees that the
operation of a Topgolf driving range, restaurant, bar, lounge, grill and event space, that is similar
with regard to the current operations of that certain existing Topgolf facility located at 2700
Esperanza Crossing, Austin, Texas 78758 and is generally consistent with regard to its
construction with those renderings and descriptions attached hereto as Exhibits "D" and "G"
and by this reference incorporated herein (the "Prototype Facility"), including a driving range
and related teaching facilities and both indoor and outdoor cafd / bar / grill facilities serving
alcoholic beverages, and meeting and banquet facilities, also serving alcoholic beverages
(referred to herein as a "Topgolf Facility") is a Permitted Use under this Section 4.1.
4.2 Lessee shall not use or occupy, or permit or suffer all or any part of the Premises
or any Premises Improvements to be used or occupied except as provided in Section 4.1 and
Lessee's use of the Premises is further restricted and cannot be used: (i) for any unlawful or
illegal business, use, or purpose, or (ii) for any purpose or in any way that is in violation of a
lawfully issued existing certificate of occupancy for the Premises, or of any "Legal
Requirements" (as defined below), including but not limited to "Legal Requirements" respecting
"Hazardous Substances" (as defined in Section 42). For the purposes of this Lease, the term
"Legal Requirements" means all present and future laws, ordinances, orders, judgments, rules,
regulations, and requirements of all federal, state, regional, and municipal governments,
departments, agencies, commissions, boards, and officers, foreseen or unforeseen, ordinary as
well as extraordinary, applicable to the Premises or to the use or manner of uses of the Premises
or any Premises Improvements or the owners or users of any Premises Improvements.
4.3 Nothing contained in this Lease shall be deemed to be a gift or dedication of any
portion of the Premises to the general public or for the general public or for any public purpose
whatsoever, or an agreement to do so, it being the intention of Lessor and Lessee that this Lease
shall be strictly limited to and for the purposes herein expressed and strictly for the benefit of
Lessor and Lessee. Unless required otherwise by a governmental authority, Lessee shall take
commercially reasonable actions to prevent the Premises from being used by any individual or
entity, or the public, from and after the Premises Turnover Date, in such manner as might
reasonably make possible a claim or claims of adverse usage, adverse possession, or prescription,
or of implied dedication, of the Premises or any Premises Improvements or any portion thereof.
Section 5. Due Diligence; Condition of Premises
Agreement No. 4924-1
5.1 Due Diligence Period. Unless earlier terminated pursuant to Section 5.6 or as
otherwise expressly provided herein, Lessee shall have until twelve (12) months from the
Commencement Date (such period, as the same may be extended hereunder, is referred to herein
as the "Due Diligence Period") to complete its due diligence investigations of the Premises.
During the Due Diligence Period, Lessee and Lessee's authorized representatives, during normal
business hours, shall have the right to enter upon the Property for the purposes of conducting
studies, inspections and investigations of the Property (without unreasonably interfering with the
operations of the current facilities located on the Property) and analyzing all documents and
matters pertaining to the Property as Lessee reasonably deems necessary or desirable in
connection with its leasing of the Premises, including geotechnical, seismic, mechanical,
engineering and environmental testing, and to satisfy itself in its sole and absolute discretion that
the Property is suitable for the Golf Course Improvements and the Premises Improvements and
Lessee's intended use of the Premises, including without limitation, zoning classifications,
building regulations, governmental entitlements, land use entitlements permitting private
recreational use at the Premises (including without limitation, a general plan amendment,
specific plan designation, alcohol permits, and lot line adjustments), a determination under the
California Environmental Quality Act ("CEQA") on all actions subject to CEQA (including
without limitation the leasehold interest that may be granted to Lessee under this Lease), and all
other legal matters applicable to the Premises (collectively, the "Required Project
Entitlements"), all at Lessee's sole expense (collectively, the "Investigation").
Notwithstanding the foregoing, the Due Diligence Period may be extended by Lessee for an
additional one hundred fifty (150) days in duration by Lessee providing written notice to Lessor
before the end of the Due Diligence Period to secure the approvals it reasonably deems necessary
for the operation of the Premises as contemplated by this Lease. If Lessor has not received a
notice from Lessee that Lessee has elected to exercise a permitted extension of the Due
Diligence Period, then it shall be presumed that Lessee intended not to extend the Due Diligence
Period and the Due Diligence Period will be deemed to have expired and not been so extended.
The Due Diligence Period shall not exceed five hundred fifteen (515) days except in the event
that any person or entity that is not a party to this Lease nor a guarantor of this Lease challenges
any of the Required Project Entitlements, then the Due Diligence Period shall automatically be
extended to end upon the thirtieth (30th) day following the final disposition of any such
challenge (i.e. the entry of a non -appealable order of a court of competent jurisdiction dismissing
such challenge, granting some or all of the relief sought by such person or entity, or settlement of
the challenge), provided that Lessee is diligently defending and pursuing such challenge. Except
with respect to provisions that expressly survive the termination of this Agreement, upon
expiration of the Due Diligence Period (which shall not be extended under any circumstance by
Force Majeure), the failure to satisfy the Conditions Precedent and the termination of this Lease,
all of the rights and obligations of the parties hereunder shall terminate and each party represents
and warrants that it understands and agrees that it shall have no right to file a legal or equitable
action against the other party if the Conditions Precedent are not satisfied during the Due
Diligence Period, unless the failed condition was a condition that failed because of a breach of
this Agreement by the other party or because of such party's fraud or willful misconduct. For the
avoidance of doubt, the mere exercise of discretionary authority by the City is not a breach of
this Lease or fraud or willful misconduct by the City or Lessor, provided that in no event shall a
party's damages in connection with such legal or equitable action exceed One Hundred
Thousand and no/100 Dollars ($100,000.00).
Agreement No. 4924-1
5.2 Cooperation and Entry Notice. Lessor and Lessee agree to reasonably cooperate
during the Due Diligence Period, including but not limited to Lessor providing public
information to Lessee in Lessee's efforts to obtain approvals from other governmental agencies.
Lessee agrees to make reasonable efforts to notify Lessor, a minimum of twenty-four (24) hours
before each entry onto the Premises and/or contact with employees on the Premises.
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 Exhibit "E", which will be finalized and attached hereto within sixty (60) days from the
Commencement Date (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 borne 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. If Lessee disapproves of any matter affecting title or the
Survey (the "Title Disapproval"), Lessor shall have the option until 5:00 p.m. on the day that is
five (5) business days after delivery to Lessor of the Title Disapproval 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 five (5) business days after Lessor's Title Response, 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 Lessee elects not to terminate this Lease as provided above,
Lessee agrees that the matters expressly approved or waived by Lessee in writing shall added
and be attached to this Lease as Exhibit "E" as 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.
Agreement No. 4924-1
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.
5.4 Indemnification. All Investigations shall be at the sole risk and expense of Lessee
and Lessee shall defend, indemnify and hold Lessor and its employees, agents, officers and
elected officials, (collectively the "Indemnified Parties") harmless for, from and against any
and all claims, causes of action, demands, injuries, damages, costs, expenses (including
reasonable attorneys' fees) or liability (collectively, the "Liability") imposed upon, suffered by,
incurred by or asserted against the Indemnified Parties as a result of or relating to the
Investigations conducted by or on behalf of Lessee in connection with the Property, except for
damages resulting from the negligence or willful misconduct of Lessor or those acting at its
request or on its behalf or the discovery of Hazardous Substances (as defined in Section 42) on
the Property that were not released on the Property by Lessee or its agents. However, if Lessee
takes possession of the Premises then it shall be responsible for all Hazardous Substance (as
defined in Section 42) clean-up costs that are required for purposes of completing the Premises
Improvements on the Property. Lessee shall maintain and shall cause any person performing
work or investigation on the Premises on behalf of Lessee to maintain a policy of comprehensive
general liability insurance with premiums fully paid, issued by an insurance company reasonably
acceptable to Lessee in an amount not less than $2,000,000.00 to insure the risks covered by the
indemnity provided above, which policy shall name the Indemnified Parties as insureds. The
insurance shall not act as a limit on Lessee's Liability. This indemnity shall survive any
termination or expiration of this Lease. Notwithstanding any other provision in this Lease, in the
event that the Conditions Precedent are not satisfied and Lessee does not take possession of the
Premises, then Lessee shall return the Golf Course and Premises to substantially their same
condition as they existed prior to the Commencement Date.
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
within ninety (90) days of the Commencement Date 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 are 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 "D" hereto, and Topgolf has
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entered into construction contracts consistent with this Lease, for the completion of the Premises
Improvements as described and depicted on Exhibit "B-1" 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 El 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
have obtained within sixty (60) days from the Commencement Date an extension to the License
in a form acceptable to the Lessor and Lessee in their respective sole and absolute discretion;
(vii) Lessee has received written confirmation from Chevron USA, Inc., a Pennsylvania
corporation ("Chevron"), within thirty (30) days from the Commencement Date 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 (provided that, Lessee
may, in is sole discretion, grant one or more extensions of the foregoing thirty day period during
which this Condition Precedent may be satisfied by delivery of written notice to Lessor setting
forth the time period of any such extension(s) but in no event shall the initial thirty (30) day
period and any extension thereto exceed the initial twelve month portion of the Due Diligence
Period set forth in Section 5.1, plus, if applicable, the sixty day (60) day extension period);
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 within sixty (60) days from the Commencement Date that the CenterCal
Guarantor has sufficient financial strength to guarantee the construction of the Golf Course
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 during the Operating Period and to guarantee Rent payments through
completion of the Operating Period as expressly required by this Lease 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 within such
60 day period, Lessor shall notify Lessee and the 60 day 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 executed a guaranty for the operation of the Premises
during the Operating Period and to guarantee Rent payments through completion of the
Operating Period in the form attached hereto as Exhibit "H" and delivered such to the Lessor,
and (B) 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 item (iv); and neither the Topgolf Guarantors nor the
CenterCal Guarantor shall have withdrawn such Guarantees within five (5) business days as set
forth in Section 5.5 of 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 right to use seventy (70) parking spaces on the parking lot on the Premises and
provides that up to thirty (30) of such seventy (70) parking spaces will be marked with
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appropriate signage to indicate that they are to be used exclusively by the patrons of the Golf
Course during the Golf Course's hours of operation as provided in Exhibit "D" ("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; (xii) Lessee
shall have prepared at its expense within one hundred and twenty (120) days after the
Commencement Date the legal descriptions for Exhibits "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
17.2.1.1 hereof) in their respective sole and absolute discretion within 180 days from the
Commencement Date; 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 Title
Company ("Escrow Holder") and entered into an escrow agreement (the "Escrow Agreement"
)with Lessor and Escrow Holder solely for the purpose of funding a portion of the cost to
purchase and install lights on the golf course on the Property for 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 contrary, 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) exclusive
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 parking spaces granted thereunder) in such a manner so
as to be compatible with the Permitted Use and the Lessor's operation of the Golf Course.
5.6 Lease Termination. Items (vi), (vii) and (viii) of Section 5.5 shall be collectively
referred to as the "Preliminary Conditions Precedent." If, on or before the expiration of the
time periods set forth for any of the Preliminary Conditions Precedent, Lessee shall determine in
its sole and absolute discretion that any of the Preliminary Conditions Precedent will not be
satisfied, then Lessee may notify Lessor of such determination at any time before or within ten
(10) days after the expiration of such applicable time period that it has elected to terminate this
Lease. With respect to the Preliminary Conditions Precedent set forth in items (vi) and (viii)
above, if, on or before the expiration of the time periods set forth in items (vi) and (viii) above
Lessor shall determine in its sole and absolute discretion that items (vi) and (viii) will not be
satisfied within the applicable time period, then Lessor may notify Lessee of such determination
at any time before or within ten (10) days after the expiration of such applicable time period that
it has elected to terminate this Lease. Additionally, if Lessee does not file its application for the
Required Project Entitlements within the time period set forth in 5.5 (i)(A), then unless the
parties agree to extend the time period in writing, this Lease shall terminate except those
provisions that expressly survive a termination of this Lease. If this Lease is not so terminated by
either Lessee or Lessor, then Lessee shall continue with its Investigation and shall have the right
to terminate this Lease as set forth herein, including without limitation, the Conditions Precedent,
and Lessor shall have also have the right to terminate this Lease by notice to Lessee if the
Conditions Precedent are not satisfied within the Due Diligence Period; Lessee may terminate
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this Lease for any reason at any time in its sole and absolute discretion during the Due Diligence
Period by notifying Lessor of such determination (the "Due Diligence Termination Notice"),
whereupon any termination by Lessor or Lessee of this Lease and the obligations of the parties
hereunder shall terminate (and no party hereto shall have any further obligations in connection
herewith except under those provisions that expressly survive a termination of this Lease). Each
party hereto agrees to diligently pursue the satisfaction of all Conditions Precedent within the
time frames set forth herein. In the event that Lessee determines to proceed with the leasing of
the Premises and all of the Conditions Precedent are satisfied and thereby waive its right to
terminate this Lease as provided in this Section 5.6, then Lessee shall notify Lessor of such
determination in writing on or before 5:00 p.m. (Pacific time) on the date that the Due Diligence
Period shall expire (the "Due Diligence Acceptance Notice"). If the Lessee delivers the Due
Diligence Acceptance Notice and neither the Topgolf Guarantors or the CenterCal Guarantor
have withdrawn their Guarantees by providing written notice of such within five (5) business
days of the Due Diligence Acceptance Notice then the Guarantees shall be deemed to be in full
force and effect and the Topgolf Guarantors and the CenterCal Guarantor shall have waived any
rights, if any, to claim that their respective Guarantees are not in full force and effect. If either
Guarantor has given written notice of the withdrawal of their Guaranty then this Lease shall be
deemed terminated and the parties shall have no further obligations under this Lease except those
that expressly survive the termination of this Lease. The Due Diligence Acceptance Notice shall
be deemed to be a confirmation from Lessee that the parties have entered into the Sublease of the
Premises further described in clause (iv) of Section 5.5 hereof. In the event that Lessee shall fail
to deliver either the Due Diligence Termination Notice or the Due Diligence Acceptance Notice
to Lessor on or before 5:00 p.m. (Pacific time) on the date that is the tenth business day
following the expiration of the Due Diligence Period then this Lease shall expire and the
obligations of the parties hereunder shall terminate (and no party hereto shall have any further
obligations in connection herewith except under those provisions that expressly survive a
termination of this Lease). In addition to the foregoing, if, on or before the expiration of the Due
Diligence Period the Conditions Precedent have not been satisfied or the City does not approve
of the Required Project Entitlements, then this Lease and the obligations of the parties hereunder
shall terminate and no party hereto shall have any further obligations in connection herewith
except under those provisions that expressly survive a termination of this Lease. It is expressly
understood that the City is not committing to issuance of the Required Project Entitlements,
including the CEQA determination or that the Conditions Precedent shall otherwise be satisfied
by executing this Lease as such are subject to a separate discretionary land use entitlement
processes, including public hearings, and/or are outside of the City's control and/or are, as
applicable, subject to the approval of the City.
Within five (5) business days of the delivery by Lessee to Lessor of the Acceptance Notice, so
long as neither the Topgolf Guarantors nor the CenterCal Guarantor have provided written notice
that it has withdrawn its Guarantee, Lessor and Lessee shall each execute a memorandum
evidencing this Lease that may be recorded by Lessee at Lessee's sole cost and expense and in
the form of Exhibit "F." If, for any reason at any time during the Term of this Lease the legal
description of the Premises changes, Lessor and Lessee agree to execute and record a new
Memorandum of Lease, modifying the original Memorandum to reflect such new legal
description. Notwithstanding the foregoing sentence, the parties are under no obligation to
modify the legal description of the Premises. In the event this Lease is terminated pursuant to
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the terms hereof the parties agree, upon written request of either party, to execute and record
evidence of such termination of the above Memorandum.
Notwithstanding anything in this Lease to the contrary, Lessee shall have no right to
terminate this Lease and Topgolf Guarantors and Centercal Guarantor shall have no right to
terminate or diminish their obligations under their respective guarantees following the Premises
Turnover Date through the time that the Golf Course Improvements and the Premises
Improvements are completed and a certificate of occupancy has been issued for the Golf Course
and the Premises, except for termination due to a material default of this Lease by Lessor that
Lessor has not remedied after being notified of the default and afforded the opportunity to cure it
as provided in Section 19. Notwithstanding the foregoing, if, during construction of the Golf
Course Improvements or the Premises Improvements, Lessee discovers that due to the discovery
of Hazardous Substances (as defined in Section 42) on or under the Golf Course or Premises
after the Turnover Date which: (i) could not have not been reasonably discovered by Lessee as
part of its investigation of the Premises and Golf Course; or (ii) were not caused by Lessee, its
agents, contractors, employees, tenants, occupants or invitees or otherwise resulting from
Lessee's use of the Premises; and Lessee is not able to construct its contemplated Premises
Improvements in accordance with desired or approved plans, site plans and the Required Project
Entitlements, Lessee shall be obligated to return the Golf Course and Premises to the same or
better condition, including all improvements that existed thereon, they were in prior to the
Premises Turnover Date and terminate this Lease and the parties shall have no further rights or
obligations under this Lease except as expressly set forth herein.
Upon any termination of this Lease pursuant to this Section 5, and provided that Lessor is
not in default of any material provision hereunder, Lessee shall deliver to Lessor, within ten (10)
days of such termination and without any representation or warranty whatsoever as to the truth,
accuracy or completeness of such information and Lessor shall rely on such information at
Lessor's sole risk and expense, originals or copies of all studies, reports, maps, documents and
other material obtained by Lessee from third parties as part of Lessee's Investigation that are in
Lessee's possession and that Lessee is not expressly prohibited from providing to Lessor.
5.7 Survival. All those provisions of this Section 5 whose full performance are not
accomplished prior to any termination of this Lease shall survive such termination to allow such
performance within a reasonable time. However, this provision shall not extend the Due
Diligence Period, provide additional time for satisfying the Conditions Precedent or in any way
result in a leasehold or other possessory interest to be created in the Lessee or any other party
with respect to the Premises or the Property.
Section 6. Liens
6.1 Except as otherwise specifically provided in this Lease, Lessee shall have no
power to do any act or to make any contract that may create or be the foundation for any lien,
mortgage, or other encumbrance on the reversion or other estate of Lessor, or on any interest of
Lessor in the Property.
6.2 Lessee shall not suffer or permit any liens to attach to the interest of Lessor or the
interest of Lessee in all or any part of the Property by reason of any work, labor, services, or
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materials done for, or supplied to, or claimed to have been done for or supplied to, Lessee or
anyone occupying or holding an interest in all or any part of any the Golf Course Improvements
on the Property or the Premises Improvements on the Premises through or under Lessee;
provided, that if any such lien shall at any time be filed against the Property, Lessee shall cause
the same to be discharged of record within sixty (60) days after the date of filing the same by
either payment, deposit, or bond. Lessee may, however, postpone its obligation to discharge a
lien arising out of work done by or for Lessee if Lessee provides Lessor or any prospective
purchaser of Lessor's fee interest with title insurance that insures Lessor's title and either: (i)
omits the lien, or (ii) insures against collection of the debt underlying the lien, and Lessee shall
not be in default of its obligations under this Section 6.2 during any such period of
postponement, provided such title insurance is provided within the aforesaid sixty (60) day
period, at Lessee's expense.
6.3 Subject to Section 12, unless otherwise set forth to the contrary herein, nothing in
this Lease shall be deemed to be, or be construed in any way as constituting, the consent or
request of Lessor, express or implied, by inference or otherwise, to any person, firm, or
corporation for the performance of any labor or the furnishing of any materials for any
construction, rebuilding, alteration, or repair of or to the Property or to any Golf
Course Improvements or Premises Improvements, or as giving Lessee any right, power, or
authority to contract for or permit the rendering of any services or the furnishing of any materials
that might in any way give rise to the right to file any lien against Lessor's interest in the
Property or against Lessor's interest, if any, in the Golf Course Improvements or Premises
Improvements. Lessee is not intended to be an agent of Lessor for the construction of any Golf
Course Improvements or Premises Improvements on the Property. Lessor shall have the right to
post and keep posted at all reasonable times on the Property and on any Golf Course
Improvements or Premises Improvements, any notices that Lessor shall be required to post for
the protection of Lessor, the Property, and of the Golf Course Improvements or Premises
Improvements from any such lien. The foregoing shall not be construed to diminish or vitiate
any rights of Lessee in this Lease to construct, alter, or add to any Golf Course Improvements or
Premises Improvements in accordance with the terms of this Lease.
Section 7. Utilities, Taxes, and Other Charges
7.1 Lessee shall pay or cause to be paid all charges for water, gas, electricity, garbage,
telephone, sanitary sewer, storm water, drainage, and any and all other services used by Lessee
in or upon the Premises or any Premises Improvements.
7.2 Subject to Section 7.7, Lessee shall pay and discharge, or cause to be paid and
discharged, before any fine, penalty, interest, or cost may be added for nonpayment, all real
estate taxes, personal property taxes, privilege taxes, excise taxes, business and occupation taxes,
gross sales charges, assessments (including but not limited to, assessments for public
improvements or benefits), and all other governmental impositions and charges of every kind and
nature whatsoever, whether or not now customary or within the contemplation of the parties and
regardless of whether the same shall be extraordinary or ordinary, general or special, unforeseen
or foreseen, or similar or dissimilar to any of the foregoing which, at any time during the Lease
Term following the Premises Turnover Date, shall be or become due and payable and which:
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7.2.1 Shall be levied, assessed, or imposed against the Premises or any Premises
Improvements or any interest of Lessor or Lessee under this Lease; or
7.2.2 Shall be or become liens against the Premises or any Premises
Improvements or any interest of Lessor or Lessee under this Lease unless caused by or on behalf
of Lessor; or
7.2.3 Shall be levied, assessed, or imposed on or against Lessor by reason of
any actual or asserted engagement by Lessee, or by Lessor at the direction of, directly or
indirectly, in any business, occupation, or other activity in connection with the Premises or any
Premises Improvements; or
7.2.4 Shall be levied, assessed, or imposed on or in connection with the
ownership, leasing, operation, management, maintenance, repair, rebuilding, use, or occupancy
of the Premises or any Premises Improvements under or by virtue of any present or future Legal
Requirement, it being the intention of the parties that, insofar as the same may lawfully be done,
Lessor shall be free from all such expenses and all such real estate taxes, personal property taxes,
privilege taxes, excise taxes, business and occupation taxes, gross sales taxes, occupational
license taxes, water charges, sewer charges, assessments, and all other governmental impositions
and charges of every kind and nature whatsoever (all of such taxes, water charges, sewer
charges, assessments, and other governmental impositions and charges that Lessee is obligated to
pay being collectively called "Tax" or "Taxes").
7.3 If by law any Tax is payable, or may at the option of the taxpayer be paid, in
installments, Lessee may, whether or not interest shall accrue on the unpaid balance, pay the
same, and any accrued interest on any unpaid balance, in installments as each installment
becomes due and payable, but in any event before any fine, penalty, interest, or cost may be
added for nonpayment of any installment or interest. With respect to any assessments for public
improvements or any similar assessments, Lessee may request amortization of such assessments
over the longest period permitted by governmental authority so long as such does not exceed the
Basic Term or any extension thereof exercised by Lessee. Lessee shall be obligated to pay off
any unpaid balance of any such installment payment plan upon the termination of this Lease.
7.4 Any Tax relating to a fiscal period of the taxing authority, a part of which is
within the Lease Term and a part of which is not within the Lease Term, shall be apportioned
and adjusted between Lessor and Lessee so that Lessee shall pay only the portions that
correspond with the portion of such fiscal periods included within such period. Any such
adjustments shall be resolved, as applicable, at the Premises Turnover Date and the expiration of
the Lease Term.
7.5 Lessee covenants to furnish to Lessor, within thirty (30) days after the last date
when any Tax must be paid by Lessee as provided in this section, official receipts, if such
receipts are then available to Lessee, of the appropriate taxing authority, or other proof
reasonably satisfactory to Lessor, evidencing payment.
7.6 Lessee shall have the right at Lessee's expense to contest or review the amount or
validity of any Tax or to seek a reduction in the assessed valuation on which any Tax is based, by
Agreement No. 4924-1
appropriate legal proceedings. Lessee may defer payment of such contested Tax on condition,
however, that if such contested Tax is not paid beforehand and if such legal proceedings shall not
operate to prevent the enforcement of the collection of the Tax so contested and shall not prevent
the sale of the Premises or any Premises Improvements to satisfy the same, then before
instituting any such proceedings, Lessee shall furnish to Lessor a surety company bond, cash
deposit, or other security reasonably satisfactory to Lessor as security for the payment of such
Tax, in an amount sufficient to pay such Tax, together with all interest and penalties in
connection with such Tax and all charges that might be assessed against the Premises or any
Premises Improvements in the legal proceedings. On termination of such legal proceedings, the
security originally deposited shall be applied to the payment, removal, and discharge of the Tax
and the interest and penalties in connection with the Tax and the charges and costs accruing in
such legal proceedings and the balance, if any, shall be paid to Lessee. If such security shall be
insufficient for this purpose, Lessee shall forthwith pay over to Lessor an amount sufficient,
together with the security originally deposited, to pay the same. Lessee shall not be entitled to
interest on any money deposited pursuant to this section.
7.7 Any contest as to the validity or amount of any real or personal property tax, or
assessed valuation on which such tax was computed or based, whether before or after payment,
may be made by Lessee in the name of Lessor or of Lessee, or both, as Lessee shall determine,
and Lessor agrees that it will cooperate with Lessee in any such contest to such extent as Lessee
may reasonably request, and Lessee covenants to indemnify and save Lessor harmless from any
such costs or expenses. Lessee shall be entitled to any refund of any such Tax and penalties or
interest that have been paid by Lessee.
7.8 Lessee shall be responsible and shall pay or cause to be paid all costs directly or
indirectly related to Lessee's development and use of the Premises and Premises Improvements
constructed thereon.
7.9 The parties shall use reasonable efforts to see that all communications from
governmental authorities respecting Taxes are sent directly by such authorities to Lessee. The
certificate, advice, receipt, or bill of the appropriate official designated by law to make or issue
the same or to receive payment of any Tax or nonpayment of such Tax, shall be prima facie
evidence that such Tax is due and unpaid or has been paid at the time of the making or issuance
of such certificate, advice, receipt, or bill.
Section 8. Insurance
Lessee, at its expense, shall maintain at all times during the Lease Term commercial
general liability insurance in respect of the Premises and use of the Premises with Lessor as
additional insured, with five million dollars ($5,000,000.00) in "Constant Dollars" (as defined
below) minimum combined single -limit coverage, or its equivalent. Such insurance shall include
contractual liability coverage in such amount for Lessee's indemnification and other obligations
contained herein. Such insurance policy shall be written as a primary policy and shall not be
contributing with or be in excess of the coverage that either Lessor or Lessee may carry and shall
be issued in the name of Lessee, with Indemnified Parties as being included in the insurance
policy definition of who is an additional insured, and shall be primary to any insurance available
to Lessor. Lessee shall also maintain during the Basic Term, at no expense to Lessor, fire and
Agreement No. 4924-1
extended coverage insurance sufficient to replace all Premises Improvements notwithstanding
the amounts set forth below. Such policies of insurance shall be issued by good, responsible
companies that are reasonably acceptable to Lessor and qualified to do business in the state of
California. An insurance certificate or certificates evidencing such insurance shall be delivered
to Lessor prior to the Commencement Date (evidencing coverage in the amount of two Million
Dollars ($2,000,000) covering the Due Diligence Period), and thereafter prior to the Premises
Turnover Date (evidencing coverage in the amount of five million dollars ($5,000,000)), and
renewal policies shall be delivered to Lessor within ten (10) days before the expiration of the
term of each such policy or policies. As often as any such policy or policies shall expire or
terminate, renewal or additional policies shall be procured and maintained by Lessee in like
manner and to like extent. All policies of insurance must contain a provision that the company
writing the policy will give Lessor thirty (30) days' written notice in advance of any cancellation,
non -renewal substantial change of coverage, or the effective date of any reduction in amount of
insurance.
During the term of this Lease, Lessor shall maintain, or cause to be maintained, in full
force and effect, on and with respect to the Golf Course, either proof of self-insurance, or
insurance through a joint powers authority, reasonably acceptable to Lessee in the amounts and
with additional insured requirements set forth in this paragraph or policies of: (i) commercial
general liability insurance, written on an "occurrence" policy form, with bodily injury and
property damage coverage arising out of or relating to Lessor's ownership, business operations,
use or occupancy of the Golf Course, which shall name Lessee, Lessee's first mortgagee, and
Topgolf's first mortgagee and Topgolf as additional insureds as their respective interests may
appear, and (ii) first party property insurance written on a "special form" policy covering loss or
damage to the improvements on the Golf Course for not less than the amount of the full
replacement value of such improvements. The limits of the commercial general liability policy
shall be at least five Million Dollars ($5,000,000) per person, with a combined single limit of
not less than five Million Dollars ($5,000,000.00) on a "per occurrence" basis (bodily injury
and property damage), or in such higher amounts and with such additional coverages as Lessor
may be required pursuant to agreement with any mortgage lender of Lessor or pursuant to any
other contractual agreement relating to the Golf Course or any part thereof to which Lessor is a
party. At Lessee's request, Lessor shall furnish appropriate certificates of such insurance to
Lessee.
The insurance required of Lessee and Lessor by this provision or otherwise in this Lease
shall not limit such party's liability under any indemnity provision set forth in this Lease or any
other liability that such party may have under this Lease.
"Constant Dollars" shall mean the value of the U.S. dollar to which such phrase refers,
as adjusted from time to time. An adjustment shall occur on the 1 st day of June of the sixth (6m)
full calendar year following the date of this Lease, and thereafter at five (5) year intervals.
Constant Dollars shall be determined by multiplying the dollar amount to be adjusted by a
fraction, the numerator of which is the Current Index Number and the denominator of which is
the Base Index Number. The "Base Index Number" shall be the level of the Index for the year
of the Commencement Date; the "Current Index Number" shall be the level of the Index for
the year immediately preceding the adjustment year; the "Index" shall be the Consumer Price
Index for All Urban Consumers, published by the Bureau of Labor Statistics of the United States
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Department of Labor for U.S. City Average, All Items (1982-84=100), or any successor index
thereto as hereinafter provided. If publication of the Index is discontinued, or if the basis of
calculating the Index is materially changed, then Lessor and Lessee shall substitute for the Index
comparable statistics as computed by an agency of the United States Government or, if none, by
a substantial and responsible periodical or publication of recognized authority most closely
approximating the result which would have been achieved by the Index.
Section 9. Lessor's Right to Perform Lessee's Covenants
9.1 If Lessee at any time fails to pay any Tax in accordance with the provisions of this
Lease or fails to make any other payment (other than Rent) or perform any other material act on
its part to be made or performed (in each instance, to the extent applicable, within the applicable
notice and cure periods provided in this Lease), then Lessor may (but shall be under no
obligation to):
9.1.1 Obtain the same on Lessee's behalf, and without waiving or releasing
Lessee from any obligation of Lessee contained in this Lease or from any default by Lessee and
without waiving Lessor's right to take such action as may be permissible under this Lease as a
result of such default, and after Lessee's failure to obtain any required liability insurance or
evidence thereof, procure such insurance and Lessee shall pay to Lessor the actual costs and
expenses thereof as applicable to that period of time between the expiration of such notice and
the date upon which Lessee provides such certificate or evidence of liability insurance to Lessee
as required hereinabove, and any actual costs incurred by Lessor in obtaining or terminating its
procured insurance; and/or
9.1.2 After ten (10) days prior written notice to Lessee which specifies what
action is required, perform the same on Lessee's behalf, make any other payment or perform any
other act on Lessee's part to be made or performed as provided in this Lease.
9.2 All sums so paid by Lessor and all actual costs and expenses incurred by Lessor,
in connection with the performance of any such act, shall constitute Additional Rent payable by
Lessee under this Lease and shall be paid by Lessee to Lessor on demand.
Section 10. Compliance with Legal Requirements
10.1 Throughout the Lease Term Lessee shall promptly comply with all Legal
Requirements (as defined in Section 4.2). To the extent that there is any change in Legal
Requirements such that the Permitted Use is no longer a lawful use of the Premises, Lessee may
terminate this Lease upon delivery of written notice to Lessor. Lessee shall pay all costs of
compliance with Legal Requirements.
10.2 Lessee shall have the right, after prior written notice to Lessor, to contest by
appropriate legal proceedings, diligently conducted in good faith, in the name of Lessee or
Lessor or both, without cost or expense to Lessor, the validity or application of any Legal
Requirement subject to the following:
10.2.1 If, by the terms of any Legal Requirement, compliance may legally be
delayed pending the prosecution of any such proceeding without the incurrence of any lien,
Agreement No. 4924-1
charge, or liability of any kind against all or any part of the Premises and without subjecting
Lessor to any liability, civil or criminal, for failure to comply, Lessee may delay compliance
until the final determination of such proceeding; or
10.2.2 If any lien, charge, or civil liability would be incurred by reason of any
such delay, Lessee nevertheless may contest the matter and delay compliance, provided that such
delay would not subject Lessor to criminal or civil liability or fine, and Lessee prosecutes the
contest with due diligence.
10.3 Lessor shall execute and deliver any appropriate papers, as determined in the
Lessor's sole discretion, that may be necessary, proper or desirable to permit Lessee to contest
the validity or application of any Legal Requirement, provided all the requirements of this
section have been satisfied by Lessee.
10.4 Each party shall promptly provide the other party, in the manner provided in
Section 31 below, copies of all material correspondence or other documents sent to or received
from governmental agencies or other persons: (i) relating to Lessee's development of the
Premises; and/or (ii) that may materially adversely affect the fair market value of the Premises.
10.5 Lessor represents and warrants to Lessee, that as of the Commencement Date and
as of the Premises Turnover Date:
10.5.1 Lessor shall not during the Lease Term initiate any action that would
create any encumbrances except for taxes, assessments and fees imposed pursuant to California
Constitution Articles XII C and D (or other applicable laws), that would adversely affect
Lessee's use, operation or occupancy of the Premises.
10.5.2 All persons and entities supplying labor, materials, and equipment to the
Premises have been paid, there are no claims of liens and there are no service contracts
applicable to the Premises.
10.5.3 To the best of Lessor's knowledge there is no action in the nature of
litigation, claim, investigation or other proceeding pending or to Lessor's best knowledge,
threatened against or affecting the Premises, the use thereof, or Lessor, or if there is, then Lessor
shall promptly disclose such matter to Lessee.
10.5.4 Lessor has not committed nor obligated itself in any manner whatsoever to
sell or lease the Premises to any person other than Lessee. Without limiting the generality of the
foregoing, no right of first refusal regarding the Premises exists. Lessor will not, prior to the
Premises Turnover Date, offer to or enter into any backup or contingent option or other
agreement to sell or lease the Premises to any other person.
10.5.5 There is an existing agreement with a company to operate and manage the
Property (the "Management Agreement"), but the Lessor shall by the expiration of the Due
Diligence Period provide Lessee with reasonable evidence that as of the Commencement Date
and as of the Premises Turnover Date, such Management Agreement shall have been terminated
with respect to the Leased Premises, and that there are no leases, tenancies, rental agreements or
Agreement No. 4924-1
entitlements or use agreements, or unrecorded restrictive covenants affecting all or any portion of
the Premises except for the Permitted Exceptions.
10.5.6 Lessor is not a foreign person, nonresident alien, foreign corporation,
foreign partnership, foreign trust, or foreign estate, as those terms are defined in the Internal
Revenue Code and the Income Tax Regulations promulgated thereunder..
10.5.7 Lessor has made no untrue statements or representations in connection
with this Lease.
10.5.8 Lessor has to the best of its knowledge provided or made available to
Lessee all information in Lessor's possession that Lessee has requested, and Lessor to the best of
its knowledge has provided or made available to Lessee any public information or knowledge
actually obtained by Lessor of any change contemplated in any applicable laws, ordinances or
restrictions, or any judicial or administrative action, or any action by adjacent landowners, or
natural or artificial condition, financial or otherwise, which would prevent, limit or impede the
use of the Premises as contemplated by this Lease.
10.5.9 All documents delivered or made available to Lessee by or on behalf of
Lessor are to the best or Lessor's knowledge true and correct copies of the documents in Lessor's
possession.
10.5.10 Prior to the Premises Turnover Date, and except as otherwise provided in
this Lease, Lessor has: (i) performed all of its obligations under any lien indebtedness, and (ii)
except as expressly permitted by this Lease, not allowed any lien to attach to the Premises or
any portion thereof which is not discharged at the Premises Turnover Date, nor granted, created,
modified or permitted the creation of, any easement, right-of-way, encumbrance, restriction or
covenant affecting the Premises or any part thereof.
10.5.11 To Lessor's actual knowledge, except as may be contained in the written
materials delivered or made available to Lessee during the Due Diligence Period, Lessor is not
aware of the existence of Hazardous Substances (as defined in Section 42), at the Property. For
purposes of this Section 10.5.11, the phrase "actual knowledge" shall mean the present, actual
knowledge of the City Manager ("Lessor's Designated Representative") with no duty of
investigation, inquiry or inspection. In no event shall Lessee be entitled to assert any cause of
action against Lessor's Designated Representative, nor shall such individual have any personal
liability whatsoever for any matter under or related to this Lease. Lessor represents and warrants
that Lessor's Designated Representative is the City Manager and the person on behalf of Lessor
most knowledgeable about the matters which are the subject of this Section.
Agreement No. 4924-1
Section 11. Operation, Repairs and Maintenance
11.1 Lessee shall maintain and repair or cause to be maintained and repaired the
Premises and any Premises Improvements Lessee constructs on the Premises, and off the
Premises but in conjunction with the development of the Premises and that Lessee is required by
Legal Requirements to maintain, as necessary to keep them in first-class order, condition, and
repair throughout the entire Lease Term after the Premises Turnover Date, at no cost to Lessor,
provided that during the periods that Topgolf is operating the Premises, this condition shall be
satisfied by keeping the Premises in a condition substantially comparable to other facilities
currently being operated by Topgolf. Lessor and Lessee agree that wherever in this Lease an
obligation is imposed on Lessee, Lessee, without being released from any of its obligations under
this Lease or requiring that the City pursue any party other than Lessee for performance of such
obligations, shall have the right to delegate responsibility for performing such obligations and
will delegate such responsibility for performing such obligations to Topgolf or to any other
occupant of the entire Premises approved by Lessor under Section 18 of this Lease (an
"Operator") and performance of such obligation by Topgolf or the Operator in accordance with
the terms of this Lease shall be deemed performance by Lessee.
11.2 During the Lease term (i) Lessee shall operate or cause to be operated the ground
level (or other suitable portion) of the Premises Improvements as a driving range open for
business seven days a week from at least 6:00 a.m. until at least 9:00 p.m., other than on any
Specified Holidays and (ii) the remainder of the Premises Improvements, such that the same are
open for business seven days a week from at least 9:00 a.m. until at least 9:00 p.m., other than on
any Specified Holidays ("Continuous Operation Requirement). The only exception to these
requirements shall be during periods of damage or destruction, condemnation, or when Lessee is
conducting alterations, routine repairs, maintenance and upgrades to the facilities and in such
cases Lessee shall work diligently to minimize the number of hours and/or days that the driving
range and/or restaurant are not open during the Continuous Operation Requirement. For
purposes hereof, "Specified Holidays" means collectively, the following holidays: New Year's
Day, President's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, and
Christmas Day. Notwithstanding anything to the contrary contained or implied in this Lease, in
the event that at any time after the expiration of the Operating Period the Lessee provides written
notice that the Premises will not be operated by Topgolf or another Operator for the Permitted
Use (a "Non -Operation Notice"), then Lessee shall not be deemed to be in default so long as (i)
it is paying Rent and any other sums owing the Lessor hereunder in a timely manner, and (ii)
Lessee either terminates this Lease as provided below or reopens the Premises for business to the
public, in either event within two (2) years after any Non -Operation Notice (provided that any
replacement Operator of the driving range is approved by Lessor pursuant to Section 18 hereof).
Following receipt of the Non -Operation Notice, Lessor may notify Lessee that Lessor has elected
to operate the driving range or cause the driving range to be operated on an interim basis during
the period that the Premises is not open for business to the public, then Lessor shall then operate
the driving range or cause the driving range to be operated during the time period set forth in
Lessor's notice in accordance with the standards of operation set forth in this Lease until such
time as Lessee finds a new Operator for the Premises. In the event that Lessor elects to operate
the driving range as set forth above, Lessor shall operate the driving range pursuant to a month to
month sublease in form and content reasonably acceptable to Lessor, Lessee and Topgolf, which
shall provide, among other things, for (i) the reduction of the Fixed Rent in an amount equal to
Agreement No. 4924-1
the monthly net revenues that Lessor derives from its operation of the Premises (i.e. the
aggregate gross revenues received by Lessor in connection with the operation of the driving
range minus all reasonable third party out of pocket costs incurred by Lessor in connection with
the operation of the driving range, as evidenced by monthly income and expense reports and
other reasonable back-up information reasonably requested by Lessee and/or Topgolf delivered
to Lessee and Topgolf by Lessor along with the monthly rental payments), and (ii) the right of
termination by Lessee or Lessor of the sublease upon thirty business days' prior written notice
upon Lessee identifying an Operator that will sublease the Premises and operate the same for the
Permitted Use. Notwithstanding anything herein to the contrary, in no event during Lessor's
operation of the Premises shall Lessor utilize any proprietary equipment and/or other proprietary
elements of Topgolf s business, including, without limitation, computer hardware and software
and other intellection property, located upon or about the Premises.
Following the expiration of the Operating Period, including during the two year period following
delivery of the Non -Operation Notice, the Lessee shall have the right to terminate this Lease
upon thirty (30) days written notice to Lessor and shall be obligated to pay Rent and all other
sums due through the date of the termination of this Lease and no party hereto shall have any
further obligations in connection herewith except under those provisions that expressly survive a
termination of this Lease.
11.3 Lessee shall make driving bays available for youth sports and provide a ten
percent (10%) discount on golf charges for residents of the City of El Segundo that have City of
El Segundo Parks and Recreation Identification Cards. This discount will be in addition to all
other golfing discounts offered by Lessee such as the twenty percent (20%) golf discount offered
to senior citizens and active military personnel.
11.4 During such times that Topgolf is the operator, it shall: (a) between the hours of
6:00 a.m. and 12:00 p.m. on Monday through Friday, and 6:00 a.m. and 9:00 a.m. on Saturday
and Sunday, allow City of El Segundo residents that have a Parks and Recreation Card to use
the portion of the Premises identified in Section 11.2(1) of this Agreement for driving range use,
and charged a fee, less the applicable discounts identified in Section 11.3, that is consistent with
fees charged by other driving ranges in Los Angeles County that are open to the public and that
are maintained in a similar first class condition; (b) provide discounted monthly user access cards
for frequent customers similar to those provided at other Topgolf facilities; (c) promote youth
and junior golf programs, including but not limited to allowing the "Good Swings Happen"
program to continue as well as associated camps, programs and lessons for junior and youth
golfers and allow use of the driving range for such groups on the Premises at rates
commensurate with those currently charged to youth groups utilizing the driving range which
rates may be adjusted on an annual basis using the Los Angeles Area Consumer Price Index for
All Urban Consumers; (d) employ or contract with golf professionals (at salaries or rates
commensurate with amounts paid to golf professionals in Los Angeles County), including using
a good faith effort to employ or contract with those golf professionals currently providing lessons
and services on the Property, subject to the parties reaching mutually acceptable employment
terms and Topgolf s receipt of required employment and wage documentation from each
prospective hire (Topgolf agrees to use good faith efforts to consider employment terms
commensurate with employment terms offered to similarly suited professionals in Los Angeles
County), to continue to provide lessons and services in a similar manner as they are currently
Agreement No. 4924-1
provided on the Property; including using a good faith effort to employ or contract with two golf
professionals that are currently providing services on the Property during the time period
between the Initial Term and Premises Turnover Date; (e) if the Site Plan (including the parking
layout) will allow, use commercially reasonable efforts to include a putting practice element on
the Premises to replace the existing putting practice element on the Property; (f) allow junior
high school and high school players attending schools located in El Segundo and Manhattan
Beach to use the portion of the Premises used as a driving range between the hours of 2:30 p.m.
and 5:30 p.m. at no charge when such is a formal school practice event and at a rate
commensurate with fees charged by other driving ranges open to the public that are maintained
in a first class condition when they are practicing at other times (provided that such times are
prior to 7:00 p.m. local time); and, (g) use commercially reasonable efforts to introduce the game
of golf to a wider audience and work with PGA of America, PGA of Southern California, and the
SCGA in this regard.
11.5 Lessor shall not be required to furnish to Lessee any facilities or services of any
kind whatsoever during the Lease Term, including but not limited to, water, steam heat, gas, hot
water, electricity, light, and power. Lessor shall in no event be required to make any alterations,
rebuildings, replacements, changes, additions, improvements, or repairs to the Premises during
the Lease Term.
11.6 Lessor assigns to Lessee such rights, if any, as Lessor may have against any
parties causing damage during the Lease Term to any Premises Improvements on the Premises,
to sue for and recover amounts expended by Lessee as a result of such damage.
Section 12. Development of the Golf Course Premises; Premises Improvements
12.1 Promptly following the Premises Turnover Date, Lessee shall at no cost or expense
to Lessor modify and demolish, as necessary, and improve (or cause to be modified and
demolished, as necessary, and improved) the Golf Course and Premises in accordance with the
Golf Course Improvements and Premises Improvements as set forth in this Lease, and diligently
prosecute the same to completion, provided that the Golf Course Improvements and Premises
Improvements shall be substantially in accordance with the Plans and Specifications approved by
Lessor as provided in this Lease, all applicable laws, building regulations, and other applicable
restrictions on the use of the Premises, and further provided that Lessee shall be responsible for
obtaining, at no cost or expense to Lessor, all governing and regulatory agency approvals and
permits that may be required in connection with such Golf Course and Premises Improvements.
Notwithstanding the foregoing, in the event that Topgolf defaults in its construction obligations
under its Sublease with Lessee after the expiration of any applicable notice and cure periods set
forth in this Lease, which would also constitute a default by Lessee, Lessee shall have the right
in its sole and absolute discretion to either: (a) complete the Premises Improvements as provided
above, or (b) terminate this Lease and return the Golf Course and Premises to the same or better
condition as they were in on the Premises Turnover Date. Lessee shall not be relieved of any
obligation to pay Rent or any other payment in the event of any such default by Topgolf or any
other default hereunder by Lessee unless and until this Lease is terminated as set forth above in
(b) and the Lessor is in possession of the Golf Course and the Premises and both have been
returned to the same or better condition as they existed prior to the Premises Turnover Date. No
action by Lessee to complete the Premises Improvements shall alter or diminish the Topgolf
Agreement No. 4924-1
Guarantors Guaranties. All improvements to the Golf Course and the Premises shall be
completed within ten (10) months of the Premises Turnover Date, subject to events of Force
Majeure and delays caused by Lessor.
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 Improvements 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 Date or until the Golf Course Improvements are completed and the Golf Course
is capable of being operated in accordance 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 the absolute and unconditional right to shut down the Golf Course operations or
portions thereof at any time during the period commencing on the Premises Turnover Date and
ending on the Fixed Rent Commencement Date. Within ninety (90) days after the
Commencement Date, Lessee shall deliver to Lessor the conceptual Golf Course Improvement
Plans and Specifications for Lessor's approval as provided in Section 5.4 of this Lease.
12.3 Lessor shall review and approve the Plans and Specifications, such approval not to
be unreasonably withheld, conditioned or delayed, and/or provide Lessee with its comments
within thirty (30) days after Landlord's receipt of the Plans and Specifications. If disapproved
Lessee shall make all necessary revisions within ten (10) days after Lessee's receipt thereof. This
procedure will be repeated until Lessor ultimately approves the conceptual Plans and
Specifications or until this Lease is terminated in accordance with Section 5.4 and/or 5.5 hereof.
Notwithstanding the foregoing, the conceptual Plans and Specifications for the Premises
Improvements shall be approved if they are consistent in all material respects with the Prototype
Facility and all applicable zoning and building and safety laws and regulations, and the
conceptual Plans and Specifications for the Golf Course Improvements shall be approved if they
are consistent in all material respects with Exhibit "D" and all applicable zoning and building
and safety laws and regulations.
Section 13. Title to Premises Improvements
Title to any Premises Improvements and any modifications, additions, restorations,
repairs and replacements thereof hereafter placed or constructed by or through Lessee shall be
and remain in Lessee until the expiration or termination of the Lease Term. On such expiration
or sooner termination, title to any Premises Improvements shall automatically pass to, vest in,
and belong to Lessor without further action on the part of either party and without cost or charge
to Lessor in accordance with Section 26.2 hereof, provided, however, that no lien rights created
or allowed by Lessee or any assignee or sublessee shall extend beyond the Lease Term. During
the Lease Term, Lessee shall be entitled, for all taxation purposes, to claim cost recovery
deductions and the like on any Premises Improvements.
Section 14. No Waste
Agreement No. 4924-1
Lessee shall not intentionally commit any material waste on or to the Premises.
Section 15. Inspection and Access
Lessor shall have the right to enter on the Premises and any Premises Improvements at all
reasonable times during usual business hours upon not less than three (3) business days' notice
for the purpose of preventing the creation of any prescriptive rights to any third person, allowing
inspection by mortgagees, and, within one hundred eighty (180) days of the expiration of the
Lease Term, Lessor shall have the right to enter the Premises for the purpose of showing the
Premises to prospective lessees or purchasers. Notwithstanding anything to the contrary herein,
any access given to Lessor to enter the Premises for the purposes explicitly stated above shall be
subject to Lessee's reasonable security rules and regulations. Lessee reserves the right to
accompany Lessor at all times during any entry by Lessor. Lessor shall use commercially
reasonable efforts to minimize any interference with the day to day operations of the Premises in
exercising any of its rights under this Section 15. In the event any subtenant has the right to
abate rent, as a result of Lessor's activities under this Section 15, then Lessee shall be entitled to
an abatement of Fixed Rent to the extent of such subtenant rent abatement, less any rent loss
insurance proceeds received by Lessee, provided that Lessee has given Lessor prior written
notice of the terms of such subtenant abatement rights.
Section 16. Lessor's and Lessee's Exculpation and Indemnity
16.1 After the Premises Turnover Date, Lessee is and shall be in exclusive control of
the Premises and of any Premises Improvements, and except as otherwise provided herein,
Lessor shall not in any event whatsoever be liable for any injury or damage to any property or to
any person happening on, in, or about the Premises or any Premises Improvements or any injury
or damage to the Premises or any Premises Improvements or to any property, whether belonging
to Lessee or to any other person, caused by any fire, flooding, earthquake, storm, act of God,
terrorist act, breakage, leakage, defect, or bad condition in any part or portion of the Premises or
of any Premises Improvements, or from steam, gas, electricity, water, or rain, that may leak into,
or issue or flow from any part of the Premises or any Premises Improvements from the drains,
pipes, or plumbing work of the same, or from the street, subsurface, or any place or quarter, or
due to the use, misuse, or abuse of all or any of any Premises Improvements or from any kind of
injury that may arise from any other cause whatsoever on the Premises or in or on any Premises
Improvements, including defects in construction of any Premises Improvements, latent or
otherwise. Notwithstanding the foregoing, Lessor shall indemnify, defend and hold harmless
Lessee from and against all claims and all costs, expenses, and liabilities incurred in connection
with all claims, including any action or proceeding brought thereon, arising from or as a result
of: (i) any accident, injury, loss, or damage whatsoever caused to any person or to the property of
any person, as shall occur on or about the Premises prior to the Premises Turnover Date, except
to the extent such is caused by the negligent or wrongful acts of the Lessee, (ii) any failure on the
part of Lessor to perform or comply with any of the covenants, agreements, terms, provisions,
conditions, or limitations contained in this Lease on its part to be performed or complied with, or
(iii) any negligent act of Lessor or the agents, contractors, servants, or employees of Lessor. In
case any action or proceeding is brought against Lessee by reason of any claims covered in this
Section 16. 1, Lessor on written notice from Lessee shall, at Lessor's expense, resist or defend
Agreement No. 4924-1
such action or proceeding by counsel approved by Lessee in writing, which approval shall not be
unreasonably withheld, conditioned or delayed.
16.2 To the extent not caused by the negligence or willful misconduct of Lessor or its
official, officers, agents, employees or contractors, Lessee shall indemnify, defend and hold
Lessor harmless for, from and against all liabilities, obligations, damages, penalties, claims,
costs, charges, and expenses, including reasonable attorneys' fees, that may be imposed on or
incurred by or asserted against Lessor by reason of or in any way related to any of the following
occurrences following the Premises Turnover Date:
16.2.1 Any work done in, on, or about all or any part of the Property by or on
behalf of Lessee or Topgolf or any Premises Improvements related to the use, occupancy or
development of the Property by or on behalf of Lessee or Topgolf;
16.2.2 Any use, nonuse, possession, occupation, condition, operation,
maintenance, or management of all or any part of the Premises or any Premises Improvements;
16.2.3 Any negligence or willful misconduct on the part of Lessee or any of its
agents, contractors, servants, employees, sublessees, licensees, or invitees;
16.2.4 Any accident, injury, or damage to any person or property occurring in,
on, or about the Premises or any Premises Improvements; or
16.2.5 Any failure on the part of Lessee to perform or comply with any of the
covenants, agreements, terms, provisions, conditions, or limitations contained in this Lease on its
part to be performed or complied with.
16.3 [Intentionally Omitted]
16.4 In case any action or proceeding is brought against Lessor by reason of any claims
covered in Section 16.2, Lessee on written notice from Lessor shall, at Lessee's expense, resist
or defend such action or proceeding by counsel approved by Lessor in writing, which approval
shall not be unreasonably withheld, conditioned or delayed.
16.5 If Lessor or Lessee asserts any claim against the other party by reason of the other
party's ownership interest, the party asserting the claim shall have no claim against the other
party's officers, directors, employees or agents.
16.6 The provisions of this Section 16 shall survive any termination of this Lease.
Section 17. Condemnation
17.1.1
17.1 If all the Premises and Premises Improvements are taken or condemned, by right
of eminent domain or by purchase in lieu of condemnation, or if such portion of the Premises or
any Premises Improvements shall be so taken or condemned that the portion remaining is not
sufficient and suitable for operation of a commercial driving range and restaurant, in Lessee's
Agreement No. 4924-1
reasonable judgment, to permit the restoration of any Premises Improvements following such
taking or condemnation or for Lessee's use of the Premises, then this Lease and the Lease Term,
at Lessee's option, shall cease and terminate as of the date on which the condemning authority
takes possession or title (any taking or condemnation of the land described in this section being
called a "Total Taking"), and the Fixed Rent and Additional Rent shall be apportioned and paid
to the date of such Total Taking.
17.2 If this Lease expires and terminates as a result of a Total Taking, the rights and
interests of the parties shall be determined as follows:
17.2.1 The total award or awards for the Total Taking shall be apportioned and
paid to Lessee and Lessor in Proportionate Shares. For purposes hereof, the "Proportionate
Shares" of Lessee and Lessor shall be expressed as a percentage of the whole and shall be
calculated as of the date of the Total Taking, as follows: (i) Lessor's Proportionate Share shall
equal the percentage obtained by dividing the Land Value by the Aggregate Sum, and (ii)
Lessee's Proportionate Share shall equal the percentage obtained by dividing the Amortized
Improvements Cost by the Aggregate Sum. In the event that the Golf Course is condemned then
as between Lessor and Lessee (and the CenterCal Guarantor and the Topgolf Guarantors) any
condemnation award with respect to the Golf Course or Golf Course Improvements shall be
exclusively awarded to the City.
17.2.1.1 The term "Land Value" shall mean the fair market value of
the land and the driving range improvements currently located thereon (prior to any development
activity of Lessee or its sublessees or assigns) as determined as of the date of this Lease and
without regard to this Lease, but encumbered by the License Agreement as the same may be
amended pursuant to Section 5.4, the use restriction on the Premises imposed by Chevron in that
certain Corporation Grant Deed form Chevron to Lessor, dated May 16, 1988 and recorded in the
Official Records of Los Angeles County, California on May 24, 1988 as Instrument No. 88
826097 and any other liens or encumbrances existing as of the date of this Lease not including
this Lease. Lessor and Lessee will work in good faith to agree upon the Land Value within 180
days from the Commencement Date. Each of Lessee and Lessor may, at its sole cost and
expense, retain one or more appraisers or other valuation consultants to perform appraisals or
other analyses of the Land Value and assist with the determination of the Land Value hereunder.
Following the agreement of Lessor and Lessee with regard to the Land Value, such Land Value
shall remain fixed and shall not be subject to adjustment hereunder.
17.2.1.2 The term "Amortized Improvements Cost" shall mean at
a given point in time the then unamortized cost of the Premises Improvements (i.e. the aggregate
cost of the Premises Improvements as amortized using 40 year straight line depreciation
commencing on the date that rent commences under the Sublease with Topgolf El Segundo
through the date of the Total Taking hereunder).
17.2.1.3 The term "Aggregate Sum" shall mean, at any given point
in time, the sum of the Land Value and the Amortized Improvements Cost.
17.3 If, during the Lease Term, there is a taking or condemnation of the Premises or
any Premises Improvements that is not a Total Taking and not a temporary taking of the kind
Agreement No. 4924-1
described below, or if there is a change in the grade of the streets or avenues on which the
Premises abuts, this Lease and the Lease Term shall not cease or terminate, but shall remain in
full force and effect with respect to the portion of the Premises and of any Premises
Improvements not taken or condemned (any taking or condemnation or change of grade of the
kind described in this section being referred to as a "Partial Taking"), and in such event:
17.3.1 The total award or awards for the taking shall be apportioned and paid to
Lessee and Lessor in Proportionate Shares (as calculated as of the date of the Partial Taking).
17.3.2 Following any such taking or condemnation, Rent shall be equitably
abated based on the portion of the Premises taken.
17.4 In the event of a taking of all or a part of the Premises or any Premises
Improvements for temporary use, this Lease shall continue without change, as between Lessor
and Lessee, and Lessee shall be entitled to the entire award made for such use; provided that
Lessee shall be entitled to file and prosecute any claim against the condemnor for damages and
to recover the same, for any negligent use, waste, or injury to the Premises or any Premises
Improvements throughout the balance of the then -current Lease Term. The amount of damages
so recovered shall belong to Lessee.
17.5 In the event of any dispute between Lessee and Lessor regarding any issue of fact
arising out of a Taking mentioned in this Section 17, such dispute shall be resolved by the same
court in which the condemnation action is brought, in such proceedings as may be appropriate
for adjudicating the dispute.
Section 18. Assignment and Sublease
18.1 Lessee shall have the right, to assign this Lease or any interest therein, and shall
further have the right to sublease or sublet all or any portion or portions of the Premises or any
interest therein, with the Lessor's consent which may be withheld in the Lessor's reasonable
discretion based upon the financial strength of the proposed assignee or subtenant and its
experience in operating commercial driving ranges and restaurants. Any such assignment or
subletting by Lessee shall also be subject to all the following provisions:
18.1.1 Lessee shall not then be in default under this Lease beyond the expiration
of any applicable notice and cure period;
18.1.2 The assignee of Lessee shall expressly assume in writing all of Lessee's
obligations hereunder from and after the effective date of any such assignment;
18.1.3 Any sublease shall be subject to the terms and provisions of this Lease
with respect to such subtenant's or occupant's use and occupancy of the premises in question and
shall not work to alter any term or condition of this Lease;
18.1.4 Except as provided hereinbelow, no such subleasing or assignment shall
relieve Lessee from liability for payment of Rent herein provided or from the obligations to
observe and be bound by the terms, conditions, and covenants of this Lease. No transfer of
corporate shares of Lessee, if Lessee is a corporation, unless such transfer of shares will result in
Agreement No. 4924-1
a change in the present voting control of the Lessee by the person or persons owning a majority
of said corporate shares on the date of this Lease, shall constitute an assignment and be subject to
the conditions of this Section 18.2. Notwithstanding the foregoing, after completion of the Golf
Course Improvements and the Premises Improvements and payment of all Rent owing as of the
effective date of the assignment, Lessee shall be released from any and all further liabilities
under this Lease from and after the effective date of an assignment of this Lease to either: (i) an
assignee entity, that is not a so called "special purpose entity," which has a net current worth and
net tangible assets at the time of the assignment, determined according to generally accepted
accounting principles consistently applied, of not less than Ten Million Dollars ($10,000,000.00)
in Constant Dollars as defined in Section 8, or (ii) an approved assignee entity (as provided
above), that is a so called "special purpose entity," which is able to demonstrate to Lessor's
reasonable satisfaction the prospective financial ability and fiscal resources (which may include,
but shall not be limited to, the cash flow from the business operations conducted or to be
conducted on the Premises) to fulfill the monetary obligations of Lessee under this Lease; so
long as the assignee also has significant experience in operating a commercial driving range and
restaurant. Lessee's release from liability pursuant to subsection (ii) of this Section 18.2.4 (i)
shall be effective only if Lessee provides Lessor within thirty (30) days of request therefor a
copy of the assignment and reasonable evidence of the assignee's qualifications hereunder (and
Lessor shall have sixty (60) days thereafter to review such evidence and render a reasonable
determination in writing to the Lessee); and
18.1.5 Provided that Lessee, within sixty (60) days following final execution of
any sublease or other occupancy agreement for the Premises, provides Lessor with a copy of
such sublease or occupancy agreement certified by Lessee to be a true and correct copy thereof,
and further provided that Lessee does not thereafter amend such sublease or occupancy
agreement without providing to Lessor a similar certification within sixty (60) days following
final execution thereof along with a copy of the sublease or occupancy agreement as amended as
well as such other and further documentation that is reasonable and necessary to adequately
review the financial strength and experience of the proposed sublessee, Lessor shall have sixty
(60) days to provide written notice to Lessor of its approval or rejection of such sublease or other
occupancy agreement. If Lessor approves of such subtenant or other occupancy agreement,
within sixty (60) days following Lessee's written request therefor, Lessor shall execute such
other documents or instruments as may be reasonably requested by any subtenant or occupant of
the Premises affirming and evidencing Lessor's recognition of the sublease or occupancy
agreement in question as provided hereinabove so long as: (i) the term of the sublease, inclusive
of renewal options, shall not exceed the Lease Term, (ii) the subtenant's permitted use is not in
violation of Section 4 hereof, and (iii) the subtenant certifies that the sublease is subject to the
terms and provisions of this Lease with respect to such subtenant's or occupant's use and
occupancy of the premises in question.
Notwithstanding the foregoing, the sublease of the Premises to Topgolf El Segundo shall
prohibit the assignment of the Sublease by Topgolf El Segundo until the expiration of the
Operating Period, except in connection with a "Permitted Topgolf Transfer" (as such term is
hereinafter defined). Topgolf El Segundo shall have the right at any time to assign the Sublease
without the consent of Lessor or Lessee to: (a) any business entity which may, as the result of a
reorganization, merger, consolidation, or sale of assets succeed to substantially all of the business
carried on by TGI, (b) any affiliate of TGI ("Affiliate" means any entity directly or indirectly,
Agreement No. 4924-1
through one or more intermediaries, controlling, controlled by, or under common control with
TGI. The term "control" means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of TGI, whether through the ownership of
voting securities, by contract or otherwise), (c) any entity which may, as a result of a
reorganization, merger, consolidation or sale of assets, succeed to substantially all of the Topgolf
business now carried on by TGI, and (d) any entity which acquires 50% or more of the issued
and outstanding voting stock or ownership interests (or such lesser percentage as shall be
sufficient to acquire voting control) of Topgolf El Segundo or of the corporation or other entity
which controls Topgolf El Segundo. Each of the above (a) through (d) referred to herein is a
"Permitted Topgolf Transfer."
Lessor hereby approves the sublease of the Premises to Topgolf El Segundo so long as such
Sublease does not alter the terms or conditions of this Lease. Lessor also agrees that in the event
that Lessor terminates this Lease as a result of any Event of Default by Lessee, it shall deliver
written notice to Topgolf Guarantors and Topgolf of such termination and shall provide Topgolf
with thirty (30) days in which to determine whether to enter into a lease of the Premises on the
identical rental and other terms and conditions as this Lease (and Lessor shall afford Topgolf the
opportunity to enter into such lease during such thirty (30) day period) which shall take effect
immediately upon termination of this Lease; provided that (i) in connection with its execution
and delivery of such lease, Topgolf Guarantor or Topgolf pays Lessor any unpaid Rent owing
by Lessee to Lessor under this Lease (as determined without regard to any acceleration of or
addition to any such Rents pursuant to Section 20.2.4 hereof) and cures any existing defaults that
are capable of being cured by a person or entity other than the Lessee or CenterCal Guarantor,
and (ii) in the event that Lessee disputes any such termination of this Lease, and Lessor and/or
Lessee bring legal action to determine its rights hereunder, Topgolf (and Operator) shall have
the right to continue to occupy the Premises during the pendency of such legal action (provided
they continue to pay Rent and other sums to Lessor as they become due hereunder, as determined
without regard to any acceleration or addition to Rents pursuant to Section 20.2.4 hereof) and
Lessor shall provide Topgolf Guarantors or Topgolf, as applicable, the right to enter into the new
lease as described above during the thirty (30) day period after a court of competent jurisdiction
determines that this Lease has terminated or Lessee agrees or otherwise concedes that this Lease
has terminated.
18.2 If this Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, 11 USC § 101, et seq. (the "Bankruptcy Code"), any and all monies or other
consideration payable or otherwise to be delivered to Lessor shall (subject to the Bankruptcy
Code) be and remain the exclusive property of Lessor and shall not constitute property of Lessee
within the meaning of the Bankruptcy Code. Any and all monies or other considerations
constituting Lessor's property under the preceding sentence not paid or delivered to Lessor shall
be held in trust for the benefit of Lessor and be promptly paid or delivered to Lessor. Any person
or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall
be deemed without further act or deed to assume all of the obligations arising under this Lease.
Any such assignee shall upon demand execute and deliver to Lessor an instrument confirming
such assumption.
Agreement No. 4924-1
18.3 The exercise of any right or other action under this Section 18 shall not diminish or
alter the obligations of Topgolf Guarantors or CenterCal Guarantor under their respective
guaranties.
Section 19. Lessor Default; Remedies
19.1 If Lessor, whether by action or inaction, is in default of any of its obligations
under this Lease and such default continues and is not remedied within thirty (30) days after
Lessee has given Lessor written notice of the same (or, in the case of a default that can be cured
but not within such period of thirty (30) days, if Lessor has not: (i) commenced curing such
default within such thirty (30) day period, (ii) notified Lessee within such thirty (30) day period
of Lessor's intention to cure the default, and (iii) continuously and diligently completed the cure
of the default), except as otherwise expressly set forth in this Lease Lessee shall be entitled to
pursue any right or remedy available to Lessee under this Lease, at law or in equity, including,
without limitation: (a) the right to specific performance, and (b) the right to cure such default and
deduct the cost of curing such default from the Rent payable under this Lease.
19.2 No failure by Lessee to insist on the strict performance of any agreement, term,
covenant, or condition of this Lease or to exercise any right or remedy consequent on a breach,
and no payment of Rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of such agreement, term, covenant, or condition. No agreement, term,
covenant, or condition to be performed or complied with by Lessor, and no breach by Lessor,
shall be waived, altered, or modified, except by a written instrument executed by Lessee. No
waiver of any breach shall affect or alter this Lease, but each and every agreement, term,
covenant, and condition of this Lease shall continue in full force and effect with respect to any
other then -existing or subsequent breach.
19.3 Each right and remedy provided for in this Lease in favor of Lessee shall be
cumulative and shall be in addition to every other right or remedy provided for in this Lease or
now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or
beginning of the exercise by Lessee of any one or more of the rights or remedies provided for in
this Lease or now or hereafter existing at law or in equity or by statute or otherwise, shall not
preclude the simultaneous or later exercise by the party in question of any or all other rights or
remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise.
Section 20. Lessee Default; Remedies
20.1 The occurrence of any one or more of the following shall constitute a breach of
this Lease by Lessee and an "Event of Default":
20.1.1 If Lessee defaults in the payment of Rent or any other payment due and
payable by Lessee or the provision of insurance, and such default continues for ten (10) days
after Lessor has given Lessee a written notice specifying the same; or
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20.1.2 If Lessee, whether by action or inaction, is in default of any of its
obligations under this Lease (other than a default in the payment of Rent or the provision of
insurance by Lessee) and such default continues and is not remedied within thirty (30) days after
Lessor has given Lessee a written notice specifying the same, or, in the case of a default that can
be cured but not within a period of thirty (30) days, if Lessee has not: (i) commenced curing such
default within such thirty (30) day period, (ii) notified Lessor of Lessee's intention to cure the
default, and (iii) continuously and diligently completed the cure of the default, not to exceed five
(5) months with respect to a failure to comply with the Continuous Operation Requirement. For
purposes of this provision, except for the Continuous Operation Requirement, the filing of and
diligent prosecution of successful litigation by Lessee against any sublessee to effect such cure
(including any such litigation to gain possession of the Premises from Topgolf or its successor)
shall constitute commencement of and continuous and diligent completion of cure of default so
long as Rent is paid when due hereunder.
20.2 On the occurrence of an Event of Default and subject to Lessor's obligations as
provided under this Lease and under California law to mitigate Lessor's damages, Lessor shall
be entitled to pursue any right or remedy available to Lessor under this Lease, at law or in equity,
including, without limitation: (a) the right to specific performance, and (b) any one or more of
the remedies set forth in this section or any other remedy specifically set forth in this Lease.
20.2.1 Subject to Section 20.2.3, Lessor or Lessor's agents and employees may
immediately, or at any time thereafter, reenter the Premises either by summary eviction
proceedings or by any available action or proceeding at law or equity, without being liable to
indictment, prosecution, or damages (except for any damages caused by their negligence or
willful misconduct), and may repossess the same, and may remove any person from the
Premises, to the end that Lessor may have, hold, and enjoy the Premises.
20.2.2 Lessor may relet the whole or any part of the Premises from time to time,
either in the name of Lessor or otherwise, to such lessees, for such terms ending before, on, or
after the termination of the Lease
20.2.3 Whether or not Lessor retakes possession or relets the Premises, Lessor
has the right to recover its damages, including, without limitation, all lost rentals, all reasonable
costs incurred by Lessor in restoring the Premises or otherwise preparing the Premises for
reletting, and all reasonable costs incurred by Lessor in reletting the Premises.
20.2.4 To the extent permitted under California law: (i) Lessor may sue
periodically for damages as they accrue without barring a later action for further damages; and
(ii) Lessor may, in one action, recover accrued damages plus damages attributable to the
remaining Lease Term equal to the difference between the Rent reserved in this Lease for the
balance of the Lease Term after the time of award, and the fair rental value of the Premises for
the same period, discounted at the time of award at a reasonable rate not to exceed twelve
percent (12%) per annum. To avoid a multiplicity of actions, Lessor may obtain a decree of
specific performance requiring Lessee to pay the damages stated in Sections 20.2.3 and 20.2.4 as
they accrue.
Agreement No. 4924-1
20.2.5 Termination of this Lease shall not constitute a waiver of Lessor's other
remedies nor an election of remedies.
20.3 No failure by Lessor to insist on the strict performance of any agreement, term,
covenant, or condition of this Lease or to exercise any right or remedy consequent on a breach,
and no acceptance of full or partial Rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of such agreement, term, covenant, or condition. No
agreement, term, covenant, or condition to be performed or complied with by Lessee, and no
breach by Lessee, shall be waived, altered, or modified, except by a written instrument executed
by Lessor. No waiver of any breach shall affect or alter this Lease, but each and every
agreement, term, covenant, and condition of this Lease shall continue in full force and effect with
respect to any other then -existing or subsequent breach.
20.4 Each right and remedy provided for in this Lease in favor of Lessor shall be
cumulative and shall be in addition to every other right or remedy provided for in this Lease or
now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or
beginning of the exercise by Lessor of any one or more of the rights or remedies provided for in
this Lease or now or hereafter existing at law or in equity or by statute or otherwise, shall not
preclude the simultaneous or later exercise by the party in question of any or all other rights or
remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise.
Section 21. No Abatement of Rent; Encroachments
21.1 Except as otherwise specifically provided in this Lease, no abatement, refund,
diminution, or reduction of Rent or other compensation shall be claimed by or allowed to Lessee,
or any person claiming under it.
21.2 Unless directly or indirectly caused by or on behalf of Lessor, if any adjoining
building or structure encroaches on the Premises, no claim, demand, or objection of any kind
shall be made by Lessee against Lessor by reason of such encroachments and no claim for
abatement of Rent due under this Lease shall be made by reason of such encroachments or acts
of, or in connection with, removal of the encroachments. The rights, liabilities, and obligations
of the parties shall be the same as if there were no encroachments. In any related legal
proceedings, the Premises may properly and without prejudice be described according to the
description previously used without reference to any such encroachments. Lessor agrees to fully
cooperate at Lessee's expense with Lessee in any proceedings sought by Lessee to remove such
encroachments.
Section 22. Leasehold Mortgages
22.1 Lessee shall have the right, in addition to any other rights granted and without any
requirement to obtain Lessor's consent, to mortgage or grant a security interest in Lessee's
interest in this Lease and the Premises and the Premises Improvements and any subleases, under
one or more leasehold mortgages or pursuant to a sale-leaseback financing arrangement to one or
more "Lending Institutions" (as defined in Section 22.2), and/or under one or more purchase -
money leasehold mortgages, and to assign this Lease and any subleases as collateral security for
Agreement No. 4924-1
such leasehold mortgages or pursuant to the sale-leaseback financing arrangement, on the
condition that all rights acquired under such leasehold mortgages or pursuant to the sale-
leaseback financing arrangement shall be subject to each and all of the covenants, conditions,
and restrictions set forth in this Lease and to all rights and interests of Lessor, none of which
covenants, conditions, restrictions, rights, or interests is or shall be waived by Lessor by reason
of the right given to mortgage or grant a security interest in Lessee's interest in this Lease and
the Premises and the Premises Improvements, except as expressly provided otherwise in this
Lease.
22.2 Any mortgage or sale-leaseback financing arrangement made pursuant to this
section is referred to as a "Permitted Leasehold Mortgage," and the holder of or secured party
under a Permitted Leasehold Mortgage is referred to as a "Permitted Leasehold Mortgagee."
The Permitted Leasehold Mortgage that is prior in lien or interest among those in effect is
referred to as the "First Leasehold Mortgage," and the holder of or secured party under the
First Leasehold Mortgage is referred to as the "First Leasehold Mortgagee." For the purposes
of any rights created under this section, any so-called wraparound lender shall be considered a
First Leasehold Mortgagee. If a First Leasehold Mortgage and a Permitted Leasehold Mortgage
that is second in priority in lien or interest among those in effect are both held by the same
Permitted Leasehold Mortgagee, the two Permitted Leasehold Mortgages are collectively
referred to as the "First Leasehold Mortgage." A Permitted Leasehold Mortgage includes,
without limitation, mortgages and trust deeds as well as financing statements, security
agreements, sale-leaseback instrumentation, and other documentation that the lender may
require. The words "Lending Institution," as used in this Lease, mean any commercial,
national, or savings bank, savings and loan association, trust company, pension trust, foundation,
or insurance company, and any other entity, person, corporation or partnership making a loan on
the security of Lessee's interest in this Lease or all or any part of the Premises Improvements.
22.3 If a Permitted Leasehold Mortgagee sends to Lessor written notice specifying the
name and address of the Permitted Leasehold Mortgagee, then provided this Lease is still in
effect and as long as such Permitted Leasehold Mortgage remains unsatisfied of record or until
written notice of satisfaction is given by the holder to Lessor, the following provisions shall
apply (in respect of such Permitted Leasehold Mortgage and of any other Permitted Leasehold
Mortgages):
22.3.1 There shall be no amendment, or modification, except those explicitly
contemplated by this Lease, of this Lease without in each case the prior consent in writing of the
Permitted Leasehold Mortgagee and the Subtenant under the Sublease described in Section
5.4(iv). Nor shall any merger result from the acquisition by, or devolution on, any one entity of
the fee and the leasehold estates in the Premises.
22.3.2 Lessor shall, upon delivering Lessee any notice, whether of default or any
other matter, simultaneously deliver a copy of such notice to the Permitted Leasehold
Mortgagee, and no such notice to Lessee shall be deemed delivered unless a copy is so delivered
to the Permitted Leasehold Mortgagee in the manner provided in this Lease for giving notices.
22.3.3 In the event of any default by Lessee under this Lease, each Permitted
Leasehold Mortgagee shall have the same concurrent period as Lessee has to remedy or cause to
Agreement No. 4924-1
be remedied or commence to remedy and complete the remedy of the default complained of for
such default, and Lessor shall accept such performance by or at the instigation of such Permitted
Leasehold Mortgagee as if the same had been done by Lessee. Each notice of monetary default
given by Lessor will state the amounts of whatever Rent or other payments are then claimed to
be in default. Nothing herein shall require any Permitted Leasehold Mortgagee to cure any
Event of Default. No such cure shall constitute an assumption of any liability by such Permitted
Leasehold Mortgagee (unless the Permitted Leasehold Mortgagee assumes this Lease or enters
into a new lease with Lessor in their respective sole discretion) unless a liability arises directly
from a negligent or wrongful act of the Permitted Leasehold Mortgagee and in such a case the
Permitted Leasehold Mortgagee shall have the obligation to defend and indemnify the Lessor
consistent with the Lessee's obligation to defend and indemnify Lessor, nor prejudice the right
of such Permitted Leasehold Mortgagee and/or Lessee to later contest or continue to contest the
validity of the claim of the Event of Default.
22.3.4 Lessor agrees that the name of the Permitted Leasehold Mortgagee may be
added to the "Loss Payable Endorsement" of any and all insurance policies required to be carried
by Lessee.
22.3.5 Except as otherwise explicitly provided in this Lease, no liability for the
payment of Rent or the performance of any of Lessee's covenants and agreements shall attach to
or be imposed on the Permitted Leasehold Mortgagee (other than any obligations expressly
assumed by the Permitted Leasehold Mortgagee), all such liability (other than any obligations
expressly assumed by the Permitted Leasehold Mortgagee) being expressly waived by Lessor.
22.3.6 Lessor, within thirty (30) days after a request in writing by Lessee or
any Permitted Leasehold Mortgagee, shall furnish a written statement, duly acknowledged, that
this Lease is in full force and effect and unamended, or if there are any amendments, such
statement will specify the amendments, and that there are no defaults by Lessee that are known
to Lessor, or if there are any known defaults, such statement shall specify the defaults Lessor
claims exist.
22.3.7 Intentionally Omitted
22.3.8 Attornment
Lessor, on request, shall execute, acknowledge, and deliver to each Permitted Leasehold
Mortgagee an agreement prepared at the sole cost and expense of Lessee, in form satisfactory to
the Permitted Leasehold Mortgagee and Lessor, among Lessor, Lessee, and the Permitted
Leasehold Mortgagee, agreeing to all the provisions of this section. Lessor shall attorn to any
Permitted Leasehold Mortgagee or any other person who becomes Lessee by, through, or under a
Permitted Leasehold Mortgage, to the extent such is consistent with Section 18.1.5 and as long as
(i) all Rent and other monetary payments due under this Lease have been made; and (ii) the
Permitted Leasehold Mortgage has sufficient net worth, subject to the reasonable approval of the
Lessor, to operate the driving range and restaurant on the Premises.
22.3.9 Lessor shall at no time be required to subordinate its interest in the
Premises to the lien of any leasehold mortgage, including any Permitted Leasehold Mortgage,
Agreement No. 4924-1
nor to mortgage its fee simple interest in the Premises as collateral or additional security for any
leasehold mortgage, including any Permitted Leasehold Mortgage.
22.3.10 If following completion of the Golf Course Improvements and the
Premises Improvements Lessee is declared bankrupt or insolvent and this Lease is thereafter
lawfully canceled or rejected, Lessor shall to the extent permitted by law promptly execute a new
lease with Topgolf El Segundo under the identical terms and conditions as this Lease, provided
(i) all Rent and other monetary payments due under this Lease have been made; (ii) all defaults
that are capable of being cured by a person or entity other than the Lessee or CenterCal
Guarantor have been cured, and (ii) the replacement lessee or a guarantor of its obligations
hereunder has a net worth of at least $10,000,000.00.
22.3.11 If Lessor declares bankruptcy and Lessor's bankruptcy trustee rejects
this Lease when there is a Permitted Leasehold Mortgagee, Lessee's right to elect to terminate
this Lease or to retain its rights pursuant to 11 USC § 365(h)(1) shall be exercised by the
Permitted Leasehold Mortgagee.
22.3.12 No filing of bankruptcy by Lessee, a sublessee, assignee, or
Permitted Leasehold Mortgagee or any other party, other than Lessor, under, subject to or
otherwise having rights or obligations under or through this Lease, shall relieve the CenterCal
Guarantor or the Topgolf Guarantors of their respective obligations.
Section 23. Lessor's Right to Encumber
Lessor, during the Lease Term, may encumber or mortgage its fee simple interest in the
Premises so long as Lessee has reasonably consented, which consent shall be promptly granted if
each of the following conditions have been satisfied: (i) Lessee has received thirty (30) days
prior written notice of any such encumbrance, (ii) the holder of any such encumbrance executes
with Lessee a mutually agreeable nondisturbance and attornment agreement, and (iii) at no time
shall the aggregate amount of all such encumbrances of Lessor's fee simple interest in the
Premises exceed a seventy percent (70%) loan to value ratio (using the land value only without
Premises Improvements). Except as explicitly provided above, Lessor covenants and agrees that
Lessor shall not permit any liens to attach to the Premises that are created by, through or under
Lessor. If any such liens do attach to the Premises, Lessor shall immediately pay off such liens;
provided that if any such liens are not paid off by Lessor within thirty (30) days of the date that
Lessor receives written notice from Lessee that such liens are recorded against the Premises and
a demand that they be removed, Lessee may, at its option, pay off such liens and deduct the
payment from Fixed Rent.
Agreement No. 4924-1
Section 24. Nonmerger
There shall be no merger of this Lease, or of the leasehold estate created by this Lease,
with the fee estate in the Premises by reason of the fact that this Lease, the leasehold estate
created by this Lease, or any interest in this Lease or in any such leasehold estate, may be held,
directly or indirectly, by or for the account of any person who shall own the fee estate in the
Premises or any interest in such fee estate, and no such merger shall occur, unless and until all
persons at the time having an interest in the fee estate in the Premises and all persons having an
interest in this Lease, or in the leasehold estate created by this Lease, shall join in a written
instrument effecting such merger and shall duly record the same.
Section 25. Quiet Enjoyment
Lessee, on paying the Rent and observing and keeping all covenants, agreements, and
conditions of this Lease on its part to be kept, shall quietly have and enjoy the Premises during
the Lease Term without hindrance or molestation by anyone claiming by, through, or under
Lessor as such, subject, however, to the exceptions, reservations, and conditions of this Lease.
Section 26. Surrender
26.1 Except as otherwise provided, Lessee, on the last day of the Lease Term or upon
any earlier termination, shall surrender and deliver up the Premises and any Premises
Improvements to the possession and use of Lessor, free and clear of all liens and encumbrances
other than those, if any, existing on the Premises Turnover Date or created or consented to in
writing by Lessor that Lessor expressly agreed would remain following termination of this
Lease, without any payment or allowance whatsoever by Lessor on account of any Premises
Improvements on the Premises, and in a broom clean as -is condition and with the Premises in its
then condition being capable of being operated as a driving range generally consistent with the
operation of the driving range in existence as of the Premises Turnover Date (a "Driving
Range"). Subject to the preceding and Lessee's other obligations under this Lease:
26.2 When furnished by or at the expense of Lessee, fixtures, and equipment may be
removed by Lessee at or before this Lease terminates. For purposes hereof, Lessee's fixtures and
equipment include the outfield target equipment, golf balls, any proprietary technology in the
golf ball dispensers and touch screens, and other proprietary or related technology equipment.
Notwithstanding the foregoing, Lessee shall ensure that the Premises are capable of being
operated as a Driving Range on the last day of the Lease Term or upon any earlier termination
and Rent shall be due and payable until Driving Range is operational.
26.3 Any personal property of Lessee that shall remain on the Premises after the
termination of this Lease and the removal of Lessee from the Premises may, at the option of
Lessor, be deemed to have been abandoned by Lessee, and may either be retained by Lessor as
its property or be disposed of, without accountability, in such manner as Lessor may see fit, or if
Lessor gives written notice to Lessee to such effect, such personal property shall be removed by
Lessee at Lessee's sole cost and expense. If this Lease terminates early for any reason other than
the default of Lessee, then, anything to the contrary notwithstanding, Lessee shall have ninety
Agreement No. 4924-1
(90) days thereafter to remove its personal property and Lessee shall be responsible for paying
all Rent and other costs required hereunder until the Premises are delivered to the Lessor.
26.4 Lessor shall not be responsible for any loss or damage occurring to any property
owned by Lessee unless such loss or damage is caused by Lessor's negligence or willful
misconduct, or that of its agents, employees or contractors.
26.5 If, with the written consent of Lessor, Lessee fails to vacate the Premises after the
expiration of the Lease Term, or any earlier termination hereof, Lessee shall become a tenant
from month to month upon the terms of this Lease; provided, however, that Rent shall be
adjusted beginning on the first day after the expiration or earlier termination to be one hundred
ten percent (110%) of the Rent then in effect under this Lease.
26.6 Notwithstanding anything contained herein to the contrary, Lessee shall be liable
to Lessor for any and all actual and direct damages caused by its failure to vacate the Premises
after the expiration or any earlier termination of this Lease hereof, but not including incidental
and consequential damages to Lessor. Lessee shall pay such damages within thirty (30) days of
demand. Lessee shall not be subject to the preceding liability to the extent that Lessor has
elected to allow Lessee to continue as a month-to-month tenant beyond the expiration or earlier
termination of this Lease.
26.7 The provisions of this Section 26 shall survive any termination of this Lease.
Section 27. Invalidity of Particular Provisions
If any term or provision of this Lease or the application of the Lease to any person or
circumstances is, to any extent, invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than those as to which it
is held invalid or unenforceable, shall not be affected, and each term and provision of this Lease
shall be valid and be enforced to the fullest extent permitted by law.
Section 28. No Representations
Lessee acknowledges that it has examined the Premises and that no representations as to
the condition of the Premises or as to any other matters have been made by Lessor or any agent
or person acting for Lessor except as expressly provided in this Lease.
Section 29. Estoppel Certificate
Either party, within twenty (20) days after a request from time to time made by the other
party and without charge, shall give a certification in writing to any person, firm, or corporation
reasonably specified by the requesting party stating: (i) that this Lease is then in full force and
effect and unmodified, or if modified, stating the modifications; (ii) that Lessee is not in default
in the payment of Rent to Lessor, or if in default, stating such default; (iii) that as far as the
maker of the certificate knows, neither party is in default in the performance or observance of
any other covenant or condition to be performed or observed under this Lease, or if either party
is in default, stating such default; (iv) that as far as the maker (if Lessor) of the certificate knows,
no event has occurred that authorized, or with the lapse of time will authorize, Lessee to
Agreement No. 4924-1
terminate this Lease, or if such event has occurred, stating such event; (v) that as far as the maker
of the certificate knows, neither party has any offsets, counterclaims, or defenses, or, if so,
stating them; (vi) the dates to which Rent have been paid; and (vii) any other matters that may be
reasonably requested by the requesting party. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer of the Premises or encumbrancer of the
interest of Lessee hereunder. A party's failure to deliver such statement within such time shall
be conclusive upon such party: (a) that this Lease is in full force and effect without modification,
except as may be represented by the party requesting the certificate, and (b) that there are no
uncured defaults in such requesting party's performance.
Section 30. Force Majeure
If the performance by either of the parties of their respective obligations under this Lease
(excluding Rent or other monetary obligations) is delayed, or prevented in whole or in part by
any acts of God, fire or other casualty, floods, storms or other natural disasters, explosions,
accidents, epidemics, war, civil disorders, labor strikes, shortage or failure of supply of materials,
labor, fuel, power, equipment, supplies or transportation, third party legal challenges, actions
taken by governmental agencies, that could not have been reasonably anticipated by and timely
resolved by a party("Force Majeure"), the party's obligation to perform shall be delayed for a
time period equivalent to the Force Majeure (excluding any monetary obligation).
Notwithstanding the foregoing, in no event shall an event of Force Majeure extend the Due
Diligence Period (except in the case of certain third party challenges to Required Project
Entitlements as more particularly described in Section 5.1).
Section 31. Notices
31.1 Any notice required or permitted by the terms of this Lease shall be in writing and
shall be deemed given: (i) when delivered personally to an officer or other authorized
representative of the party to be notified, or (ii) after deposit in the United States mail as certified
mail, postage prepaid, return -receipt requested, or (iii) sent by reputable overnight courier, and
addressed as follows:
If to Lessor: The City of El Segundo
350 Main Street
El Segundo, CA 90245-4635
Attention: City Clerk
With a copy (which shall
not constitute notice) to:
Agreement No. 4924-1
The City of El Segundo
350 Main Street
El Segundo, CA 90245-4635
Attention. City Manager
If to Lessee
And/or Guarantors: ES CenterCal, LLC,
1600 East Franklin Street
El Segundo, CA 90245
Attention.: Jean Paul Wardy
CenterCal, LLC,
1600 East Franklin Street
El Segundo, CA 90245
Attention.: Fred W. Bruning
TopGolf USA El Segundo, LLC
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
Attn: Zach Shor, Vice President of Real Estate
TopGolf USA El Segundo, LLC
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
Attn: Elizabeth Bonesio, Corporate Counsel
With a copy (which shall
not constitute notice) to:
Griffin Fletcher & Herndon, LLP
6857 Amber Lane
Carlsbad, CA 92009
Attention.: Edward Krasnove, Esq.
Dentons US LLP
2000 McKinney Avenue, Suite 1900
Dallas, Texas 75201
Attn: Donald A. Hammett, Jr.
Or such other addresses as may be designated by either party by written notice to the other.
Notwithstanding anything in this section to the contrary, any notice sent or mailed to the last
designated address of any person or party to which a notice may be or is required to be delivered
pursuant to this Lease or this section, shall not be deemed ineffective if actual delivery cannot be
made due to a change of address of the person or party to which the notice is directed or if such
notice is rejected by such party.
Agreement No. 4924-1
Section 32. Venue
32.1 The venue for any claim, controversy, or dispute between the parties arising out
of or relating to this Lease, or to the interpretation or breach thereof, shall be the Los Angeles
Superior Court. The parties may, but are not required to, engage in mediation prior to the
initiation of any litigation.
Section 33. Entire Agreement
This Lease contains the entire agreement between the parties and, except as otherwise
provided, can be changed, modified, amended, or terminated only by an instrument in writing
executed by the parties. It is mutually acknowledged and agreed by Lessee and Lessor that there
are no verbal agreements, representations, warranties, or other understandings affecting this
Lease. This Agreement was negotiated by and jointly drafted by the parties and the language
contained herein shall not be construed against either party hereto based upon any presumption
or evidence that particular language was drafted by one of the parties hereto. All Exhibits
referenced in the Lease and attached hereto are incorporated into and are considered a part of this
Lease.
Section 34. Applicable Law
This Lease shall be governed by, and construed in accordance with, the laws of the state
of California.
Section 35. License Agreement
Lessor represents and warrants to Lessee that as of the date of this Lease, there are no
uncured defaults under the License Agreement and, to Lessor's knowledge, no events have
occurred, which with the giving of notice or the passage of time could become a default under
the License Agreement.
Lessor and Lessee agree not to take any action that would result in the termination of the
License Agreement or to modify the License Agreement without both parties written consent.
Lessor and Lessee agree to perform all of their respective obligations under the License
Agreement in a timely manner so as not to cause the termination of the License Agreement. If
Lessor or Lessee receives a notice of default from Licensor, then the party receiving the notice
shall promptly give notice of the default to other party, which notice shall include a copy of any
such notice of default that is so given or received.
In the event of a default by Lessor or Lessee under the License Agreement, both parties shall
have the right, but not the obligation, to cure the default of the other party by giving notice
thereof to the other party, and any reasonable costs incurred by non -defaulting party in curing
such default shall be borne by the defaulting party.
Section 36. Late Charge
Lessee acknowledges that late payment by Lessee to Lessor of any Rent or other
payments due hereunder will cause Lessor to incur costs not contemplated by this Lease, the
Agreement No. 4924-1
exact amount of which will be extremely difficult to ascertain. Such costs may include, without
limitation, processing and accounting charges and late charges which may be imposed on Lessor.
Accordingly, if any Rent payment is not received by Lessor within ten (10) days after receipt by
Lessee of notice from Lessor that such Fixed Rent is past due, Lessee shall pay to Lessor a late
charge equal to four percent (4%) of the unpaid Fixed Rent (the "Late Charge"). The parties
hereby agree that such late charge represents a fair and reasonable estimate of the costs incurred
by Lessor by reason of the late payment by Lessee. Acceptance of any Late Charge by Lessor
shall, in no event, constitute a waiver of Lessee's default with respect to the overdue amount in
question, nor prevent Lessor from exercising any of the other rights and remedies granted
hereunder.
Section 37. Nonwaiver
No provision of this Lease shall be deemed to have been waived by Lessor or Lessee,
unless such waiver is in writing signed by Lessor or Lessee, as applicable. Waiver of a breach of
any term or condition of this Lease shall not be deemed a waiver of any subsequent breach.
Acceptance of any Rent or other payments shall not be deemed a waiver of such breach.
Section 38. Brokerage
Lessor and Lessee represent to each other that they have not employed any brokers in
negotiating and consummating the transaction set forth in this Lease, but have negotiated directly
with each other. Lessor represents and warrants to Lessee, and Lessee represents and warrants to
Lessor, that no other broker or finder has been engaged by it, respectively, in connection with
this Lease. In the event of any claims for additional brokers' or finders' fees or commissions in
connection with the negotiation, execution, or consummation of this Lease, then Lessee shall
indemnify, hold harmless, and defend Lessor from and against such claims if they shall be based
on any statement or representation or agreement by Lessee, and Lessor shall indemnify, hold
harmless, and defend Lessee if such claims shall be based on any statement, representation, or
agreement made by Lessor.
Section 39. Miscellaneous Provisions
39.1 Lessee shall have the right in its sole and absolute discretion to obtain, at its cost,
a lot line adjustment approval, as part of the Required Project Entitlements process which
comprise the Conditions Precedent, to reconfigure the lots currently comprising the Premises to a
reconfiguration reasonably agreed upon with Lessor. As part of or separate from this process,
Lessor and Lessee shall reasonably cooperate with each other in their efforts to subdivide the
Premises.
39.2 Except as expressly set forth in this Lease, Lessee shall have the right to choose
the name of the project in its sole and absolute discretion.
Section 40. Covenants to Bind and Benefit Parties
Subject to the limitations set forth in Section 18, the covenants and agreements contained
in this Lease shall bind and inure to the benefit of Lessor, its successors and assigns, and Lessee,
its successors and assigns.
Agreement No. 4924-1
Section 41. Captions and Table of Contents
41.1 The captions of this Lease are for convenience and reference only, and in no way
define, limit, or describe the scope or intent of this Lease or in any way affect this Lease.
41.2 The table of contents preceding this Lease but under the same cover is for the
purpose of convenience and reference only, and is not to be deemed or construed in any way as
part of this Lease, nor as supplemental or amendatory.
Section 42. Hazardous Materials
The term "Hazardous Substances" shall mean and refer to the following: petroleum
products and fractions thereof, asbestos, asbestos containing materials, urea formaldehyde,
polychlorinated biphenyls, radioactive materials and all other dangerous, toxic or hazardous
pollutants, contaminants, chemicals, materials, substances and wastes listed or identified in, or
regulated by, any Environmental Law. The term "Environmental Laws" shall mean and refer
to the following: all federal, state, county, municipal, local and other statutes, laws, ordinances
and regulations which relate to or deal with human health or the environment, all as may be
amended from time to time. The term "Release" shall mean and refer to any spilling, leaking,
pumping, pouring, emptying, discharging, injecting, escaping, leaching, dumping or disposing
into the environment, including the abandonment or discarding of barrels, drums, containers,
tanks, or other receptacles containing or previously containing any Hazardous Substance.
Section 43. Audit
Lessor shall have the right no more than once annually, to conduct an audit of the Gross
Receipts for the immediately preceding calendar year or prior two years with a qualified
Certified Public Account. The audit shall be conducted with at least ninety (90) days prior notice
to Lessee and during regular business hours at Lessee's or Topgolf s corporate office, solely for
the purpose of determining the accuracy of the Variable Rent calculations and payments for the
preceding calendar year or prior two years. Any such audit shall not unreasonably interfere with
Lessee's business operations. Any such audit by Lessor shall be at Lessor's own expense. If
such audit reveals that the Lessor was underpaid by three percent (3%) or more for the audited
period, Lessee shall pay Lessor the reasonable cost of the audit together with the amount of the
underpayment plus a four percent (4%) penalty on the amount of the underpayment within thirty
days of being presented with a copy of the audit from the Lessor. Except as required by law,
Lessor agrees not to divulge to any person or persons, firm or corporation, the amount of Gross
Receipts made from the Premises except to the taxing authorities and to the extent necessary,
Lessor's attorneys, accountants (and other professional advisors), provided that the public
disclosure of the amount of Variable Rent paid by Lessee shall not be a violation of this
provision. If the City receives a request for such information it shall immediately notify Lessee
of such request and if the City determines the information requested is a matter of public record
then the City shall immediately notify the Lessee in writing of such determination and deliver to
Lessee copies of all correspondence received by City relating to such request. If Lessee provides
written notification to the City within five (5) business days that it disagrees with the City's
determination, then the City shall not release the information and in the event there is litigation
filed against the City for not releasing the information then the City shall immediately notify
Agreement No. 4924-1
Lessee in writing of such litigation, and deliver to Lessee copies of all pleadings, and the Lessee
shall be responsible for paying all of the City's reasonable legal fees and costs as well as
monetary award, including legal fees and costs, that a court of competent of jurisdiction awards
to the plaintiff or petitioner, provided that any counsel selected by the City must be acceptable to
Lessee and be independent counsel free of any conflict of interest. In the alternative, Lessee
shall have the right to retain its own counsel and upon written notice to the City, take over the
litigation, provided that any counsel selected by Lessee must be acceptable to the City and be
independent counsel free of any conflict of interest. In the event of any litigation with respect to
this matter each party shall reasonably cooperate with the other party, without cost, expense or liability
(other than de minimis costs) with respect to any such request for information and/or litigation.
Section 44. Counterparts
This Lease may be executed in any number of counterparts and each such counterpart
hereof shall be deemed to be an original instrument, but all such counterparts together shall
constitute but one Lease.
Section 45. Consent and Approval Rights
Except as otherwise expressly set forth in this Lease or provided by law, references in
this Lease to "consent," "approval," "acceptable," and "satisfactory" shall not be interpreted as
justifying arbitrary rejection but shall imply a good faith, reasonable application of judgment
taking into consideration customary leasing practice and commercial custom.
Section 46. Prevailing Wages
Lessee shall pay prevailing wages as defined by the California Labor Code and
applicable regulations for all the Golf Course Improvements and the Premises Improvements and
other work performed on the Property. Lessee shall provide to Lessor all records required by
state law, including but not limited to the California Labor Code and applicable regulations, to
prove that prevailing wages are being paid, including without limitation maintaining and
providing weekly certified payroll records to the Lessor evidencing that Lessee paid prevailing
wage for all of the Premises Improvements and Golf Course Improvements and other work
performed on the Property.
Section 47. Golf Course
Lessor shall maintain the appearance of the Golf Course in accordance with the same
standards that it is maintained as of the execution of this Lease. In the event that the use of the
Golf Course changes the Lessor shall maintain the appearance of the property that comprises the
Golf course in a clean and aesthetically reasonable manner. The Lessee's sole remedy for a
breach of this Section shall be specific performance. In addition, in the event that all or any
portion of the Golf Course is used for business of a sexually oriented nature, such as a strip club
or adult novelty store, then in such event Fixed Rent shall be reduced by fifty percent (50%) for
as long as such use continues on the Golf Course.
Section 48. Business License Taxes
Agreement No. 4924-1
Lessee hereby waives and agrees it shall have no right to offset the amount of business
license taxes owed to the City pursuant to El Segundo Municipal Code Chapters 3 or 4 based
upon sales tax the City receives from operations occurring on the Premises during the term of
this Lease, and any such applicable sales tax credits are hereby waived.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Lease to be executed by their
duly authorized representatives.
Lessor: THE CITY OF EL SEGUNDO, a general law City
and Municipal corporation
By:
Name: an.re Fuentes, Mayor
Attest:
9 LU6 � �)
Tracy Weav , City Clerk
Approved as Form:
Mark D. Hensley, City Attorney
Lessee: ES CENTERCAL, LLC,
a Delaware limited liability company
By: CENTERCAL, LLC,
a Delaware limited liability company
By: CENTERCAL ASSOCIATES, LLC,
a Delaware limited lralmlity company
By -I)IYJ C—,,l - - — — - - ------------------
Printe
Print "tle: Its Manager
Agreement No. 4924-1
Exhibit "A" — Legal Description
Exhibit "A-1" — The Premises
Exhibit "A-2"- The Golf Course
Exhibit "B" — Site Plan
Exhibit `B-1"
— Preliminary Site Plan
Exhibit "C" —
License Agreement
Exhibit "D" —
Golf Course and Premises Improvements
Exhibit "E" —
Permitted Exceptions
Exhibit "F" —
Form of Memorandum of Lease
Exhibit "G" —
Prototype Facility
Exhibit "H" — Form of Guaranties
Agreement No. 4924-1
EXHIBIT "A"
LEGAL DESCRIPTION
Exhibit "A"
Legal Description
PARCEL is (4136-M4.913)
PARCEL A.,
Agreement No. 4924-1
PARCEL 1, IN TITS CrTY OF EL SEGUNDO, IN THE COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS SHOWN ON MAP NO. 17749, FILED IN J ;91 PAGES 56 TO 60 INCISIVE
OF PARCEL MAPS, IN TRE OFFICE OF THE COUNTY RBdown OF 3AID BOUNTY,
EXCEPT THAT PORTIONOF SAID LAND DESCRIBED IN GRANT DEED RECORDED MARCH
12, 1999 AS " ° )m, OF OFFICIAL RECORDS,
ALSO EXCEPTING AND RESERVING TO CHEVRON U.S.A. INC,, A PENNSYLVANIA
CORPORATION, ITS SUCCESSORS AND ASSIGNS, ALL OIL, GAS AND OTHER
HYDROCARBONS, NON-HYDROC ON GASSES OR GASEOUS SUBSTANCES, ALL OTHER.
MINERALS OF WHATSOEVER NATURE, WITHOUT REGARD TO SIMILARITY TO THE
ABOVE-NMNTIONED SUBSTANCES, AND ALL SUBSTANCES THAT MAY BE PRODUCED
TIS, WITH FROM THE PROPERTY, BY DEED RECORDED MAY 24, 1988 AS
NO. 89.826097. OF OFFICIAL RECORDS.
PARCEL J3:
A PARCEL OF LAND BEING A PORTION OF PARCELS 7 AND 8 OF PARCEL MAP NO. 17750 IN
THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN AM_ZQZXA"'b'JiM0,
INCLUSIVE, OF PARCEL MAP RECORDS
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND DESCRIBED AS
FOLLOWS;
BEGINNING AT THE MOST NORTH WEST CORNER OF SAID LOT 7; THENCE SOUTH 090 46'
55" EAST ALONG THE WESTERLY LINE OF SAID LOT 7 A DISTANCE OF 134,51 Kom;
TFIENCE, NORTH 630 57' 01" EAST A DISTANCE OF 202,06 FEET; THENCE, SOUTH 26° 06'20"
EAST A DISTANCE OF 1.00 FEET; THENCE, NORTH 63° 53'40" EAST A DISTANCE OF 607.71
FEET TO A POINT IN THE NORTH LINE OF SAID LOT 8, SAID POINT BEARS SOUTH 730 28'
25" EAST A DISTANCE OF 27.04 FEET FROM THE MOST NORTH EAST CORNER OF SAID LOT
8; THENCE, SOUTH 73° 28' 25" WEST ALONG THE NORTHERLY LINE OF SAID LOTS 7 AND 8
A DISTANCE OF 782.89 FEET BACK TO THE POINT OF BEGINNING.
EXCEPT ALL OIL, GAS, ASPHALTUM AND OTHER HYDROCARBON SUBSTANCES, AND ALL
OTHER MINERALS WHETHER SIMILAR TO THOSE HEREINABOVE SPECIFIED OR NOT,
DEPOSITED OR CONTAINED IN, OR THAT MAY BE PRODUCED FROM THOSE
FORMATIONS, ZONES OR HORIZONS LYING BELOW FIVE HUNDRED (500') FEET FROM
THE SURFACE OF THE ABOVE DESCRIBED REAL PROPERTY, TOGETHER WITH THE SOLE
AND EXCLUSIVE RIGHTS AND PRIVILEGES TO INJECT INTO ANY FORMATION, ZONE OR
HORIZON LYING BELOW FIVE HUNDRED FEET (500') FROM THE SURFACE OF SAID REAL
Agreement No. 4924-1
PROPERTY, ETHER WET OR. DRY GAS, REGARDLESS SS OF WHERE THE SAME IS PRODUCED,
TO STORE THE SAME THEREIN, AND TO REMOVE OR WITHDRAW THE SAME THEREFROM
AT ANY TIME, OR FROM TIME TO TIME, PROVIDED THAT SAID GRANTOR, ITS
SUCCESSORS AND ASSIGNS, SHALL NOT HAVE ANY RIGHT OF ENTRY, AND SHALL NOT
ENTER OR UPON ANY PART OF THE SURFACE OF SAID REAL PROPERTY OR IN, UPON OR
THROUGH ANY PORTION OF THE SUBSURFACE OF SAID REAL PROPERTY WHICH LIES
WITHIN FIVE HUNDRED (500') FEET VERTICALLY FROM THE SURFACE OF SAID REAL
PROPERTY; BUT SAID GRANTOR, ITS SUCCESSOR AND ASSIGNS SHALL HAVE THE RIGHT,
IN CONNECTION WITH THE FOREGOING RES13RVATION AND EXCEPTING, TO PRODUCE,
EXTRACT AND REMOVE SUCH OIL, GAS, ASPHALTUM AND OTHER HYDROCARBON
SUBSTANCES, AND OTHER MINERALS DEPOSITED OR CONTAINED IN OR THAT MAY BE
PRODUCED FROM FORMATIONS, ZONES OR HORIZONS LYING BELOW FIVE HUNDRED
(500') FEET FROM THE SURFACE OF SAID REAL PROPERTY, BY MEANS OF WHIP -STOCK,
SLANT OR DIRECTIONAL DRILLING OR ANY OTHER METHOD OF PRODUCTION OR
EXTRACTION CONDUCTED FROM, ON OR UPON ANY OTHER REAL PROPERTY THAN
THAT HEREINABOVE DESCRIBED, AS RESERVED IN DEED RECORM, D DECEMBER 1, 1947
AS INSTRUMENT NO, 534, OF OFFICIAL RECORDS.
ALSO EXCEPT ALL OIL, GAS AND OTHER HYDROCARBONS, NON -HYDROCARBON GASSES
OR GASEOUS SUBSTANCES, ALL OTHER MINEII S OR WHATSOEVER NATURE, WITHOUT
REGARD TO SIMILARITY TO THE ABOVE MENTIONED SUBSTANCES, AND ALL
SUBSTANCES 'THAT MAYBE PRODUCED THEREWITH FROM THE PROPERTY, AS
RESERVED IN DINED RECORDED MAY 24, 1955 AS ""'°
, OF
OFFICIAL RECORDS,
ALSO EXCEPT ALL GEOTHERMAL RESOURCES, EMBRACING INDIGENOUS STEAM, HOT
WATER AND HOT SPRINGS, STEAM AND OTHER GASSES, HOT 'WATER AND HOT BRINES
RESULTING FROM WATER, GAS OR OTHER FLUIDS ARTIFICIALLY INTRODUCED INTO
SUBSTANCES FORMATIONS HEAT OR O'TNE I ASSOCIATED ENERGY FOUND BENEATH
THE SURFACE OF THE EARTH, AND BYPRODUCTS OF ANY OF THE FOREGOING SUCH AS
MINERALS (EXCLUSIVE OF OIL OR HYDROCARBON GAS THAT CAN BE SEPARATELY
PRODUCED) WHICH ARE FOUND IN SOLUTION OR ASSOCIATION WITH OR DERIVED
FROM ANY OF THE FOREGOING, AS RESERVED IN DEED RECORDED MAY 24, 1455 AS
OF OFFICIAL RECORDS.
ALSO EXCEPT THE SOLE AND EXCLUSIVE RIGHT FROM TIME TO TIME TO BORE, DRILL
AND MAINTAIN WELLS AND OTHER WORDS INTO OR THROUGH SAID PROPERTY AND
THE ADJOINING STREETS, ROADS AND HIGHWAY'S BELOW A DEPTH OF 500 FEET FROM
THE SURFACE THEREOF FOR THE PURPOSE OF EXPLORING FOR AND PRODUCING
ENERGY RESOURCES, TO PRODUCE, INJECT, STORE AND REMOVE FROM AND THROUGH
SUCH WELLS OR WORKS, OIL, GAS, WATER AND OTHER SUBSTANCES OF WHATEVER
NATURE, INCLUDING THE RIGHT TO PERFORM BELOW SAID DEPTH ANY AND ALL
OPERATIONS DEEMED NECESSARY OR CONVENIENT' FOR THE EXERCISE OF SUCH
RIGHTS.
THE RIGHTS HEREINABOVE EXCEPTED AND RESERVED TO GRANTOR DO NOT INCLUDE
AND DO NOT EXCEPT OR RESERVE ANY RIGHT TO USE THE SURFACE OF THE PROPERTY
OF THE FIRST 500 FEET BELOW THE SURFACE OF THE PROPERTY OR TO CONDUCT ANY
OPERATIONS THEREON OR THEREIN UNLESS HEREINAFTER SPECIFICALLY EXCEPTED
AND RESERVED, ALL RIGHTS AND INTERESTS IN THE SURFACE OF THE PROPERTY ARE
Agreement No. 4924-1
HEREBY CONVENED TO GRANTEE AS PROVIDED IN DE9D RECORDED MAY 24, 1986 AS
OF OFFICIAL RECORDS,
PARCEL 2s (4138-014-910)
BEING A PORTION OF PARCEL. NO. 6 OF PARCH, MAP NO. 177503 IN THE CITY OF EL
SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER UM RECORDED
" ° INCLUSIVE, OF PA,R XL NIAPS, DESCRIBED AS FOLLOWS;
BEGINNING AT THE NOW17I ST CORNER OF SAM PARCEL NO. 6; °IMN E NORTH 090 $6'
00" BAST, ALONG Tim N`OR°T 1ERLY LINE OF 8A® PARCEL NO, 6, A DISTANCE OF 45,20
I , T; THENCE SOUTH 000 04' 00" EAST, ALONG A LINE THAT 16 45,00 FEET EASTERLY,
MEASURED AT RIGHT ANC S, AND PARALLEL WITH, THE TANGENT PORTION OF THE
WESTERLY JIVE OF SAID PARCEL NO. 6, A DISTANCE OF 530,00 FEET;114ENCE WORTH 690
56' 33" EAST A DISTANCE OF 135.00 PEET; THENCE 'CE SOUTH 000 0312711 EAST A DISTANCE OF
60,00 FEET, TO THE SOUTHERLY LINE OF SAID 'P EL NO, 6; T NCE SOUTH 8911 56' 33"
WEST, ALONG SAID SOMHORLY LINE, A DIS'TANC'E OF 140.00 FIST TO THE SWINNING
OF A 40,00 FOOT 'TANGENT CURVE, CONCAVE TO THE NOR,TIEAST; THENCE
NORTHWESTERLY, ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 890 59'27" AN
ARC DISTANCE OP 62.83 FEET; THENCE NORTH 000 04' 00" WEST, ALONG THB WESTERLY
DINE OF SAID PARCEL NO. 6, A DISTANCE OF 531.36 FEE,T', TO THE BEGINNING OF A 860,00
FOOT TANGENT CURVE, CONCAVE TO THE WEST; THENCE- NOR Y, ALONG SAID
CURVE, THROUGH A CENTRAL ANGLE OF 01c' 14'3 L" AN ARC DISTANCE OF 16.64 FEBT TO
THE POINT OF BEGINNING,
END OF LEGAL DESCRIPTION
Agreement No. 4924-1
EXHIBIT A-1
THE PREMISES
THIS EXHIBIT TO BE PREPARED WITHIN ONE HUNDRED TWENTY DAYS OF
COMMENCEMENT DATE AND ATTACHED HERETO.
Agreement No. 4924-1
EXBHIT A-2
THE GOLF COURSE
THIS EXHIBIT TO BE PREPARED WITHIN ONE HUNDRED TWENTY DAYS OF
THE COMMENCEMENT DATE AND ATTACHED HERETO.
Agreement No. 4924-1
EXHIBIT "B"
SITE PLAN
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PRELIMINARY SITE PLAN
Agreement No. 4924-1
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Agreement No. 4924-1
Agreement No. 4924-1
EXHIBIT "C"
SCE LICENSE AGREEMENT
Agreement No. 4924-1
EXH1131T C LICENSE AGREEMENT
VJ4I "M
RP File KO.W03-X91-005mm
TRIS AMEMENT, made an of thio day
of �U ..............p......�.�.��.0 1911, between BOUTHEW CALIFORNIA EDINON
Cox'ANY, a corporation organized under the laws of the State
of California, hereinafter called "Licensor", and the CITY
OF EL 6EGUN00, a Municipal Corporation, hereinafter called
"Lia nsee"'
WITNUUM That Licensor, for and in consideration of the:
faithful performance by Licensee of the terms, covenants and
agrooments, hereinafter oat forth to be kept and performed by
Licensee, does hereby give to Licensee a lioense to use that
certain real property hereinafter described and referred to
a "licensed property,'# solely for the purpose hereinafter
specified, upon and subject to the terms, reservations,
covenants and conditions hereinafter set forth.
The licensed property hereinabove referred to is
located in the City of E1 Segundo, County of Loo Angeles,
State of California, and being the parcel delineated on the
print attached hereto and made a part hereof, marked
Exhibit "A".
-1-
Agreement No. 4924-1
WIV I WW O
2121
ITORDO
This license shall be subject to those covenants,
conditiongp restrictions, reservations, exceptionst and
rights and eaoements, all as eat forth on bxhibit 81 which
is attached hereto and hereby made a part hereof and shall
ales be subject to, but not necessarily limit d to, the
following rights of way and eamments which licensor hereby
specifically rowerves to
itself
Zapsments and rights of way to construct,
operat , use, maintain, inspect, repair,
renew, replace, recon trust, enlarge, alter,
add to, improve, relocate and remove, at any
time and from time to time, electric lines,
consisting of one or more lines of metal
towers, poles and other structures, wires,
cables, including ground wires and communi-
cation circuits, both overhead and under-
ground, with necessary and convenient
foundations, conduits, pullboxes, guy wires
and anchors, insulators and crosearme placed
on Paid atructureer and other fixtures,
appliances and appurtenances connected
therewith, necessary or convenient for the
construction, operation, regulation, control,
-2-
WPX\RVN\A=00945
Agreement No. 4924-1
114 1 I" 1Ar
2121
grounding and maintenance of electric lines A" `�RUNIIA
and communication circuitor for the purpose of
transmitting, distributing, regulating and
controlling electric energy to be used for
light, heat, poorer, communication, and other
purposawl together with the easement and right
of way for roadel ingr s , egress and other
convenient purposes needed or desired at any
time and from time to time by grantee, and the
right to clear and to keep clear said ease-
ments and rights of way and than real property
affected thereby, free from explosives,
buildings, structures, aquipment, combustible
materials and any and all other obstructions
of any kind, including, but not in any way in
limitation of the generality of the foregoing,
swimming pools, lighting standards, protective
netting, and appurtenances, fences (other than
farm, grazing or pasture fancss), and the
parking of automobiles, trucks or other
mechanical equipment, for protection from fire
and other hazard:: and from interference with
ingress and egress and with the unobstructed
use of said easements and rights of way and
-3-
Agreement No. 4924-1
VPX\RVW\AGRd09 4d WN4 { " i,
2121
r' "MINIM
every part thereof, and for any and all
purposes heroin mentioned.
The foregoing license is also made subject to the
foilovLng torso and conditions, all of which Licensee hereby
agrees to comply with and perform.
(1) VAAL Licensee agrees to use the licensed
property only for tees, greens !airways, and sandtraps for a
Runicipal wolf Course,
(9) T&= Unless otherwise terminated as provided
her in, this license shall be for a term of Thirty (30)
years commencing on the date T -Y Nursery vacates the license
and allows Licensee to take possesoicn, and ending thirty
years from that date.
(3) ggnMA4MtJM Licensee agrees to pay to
Licensor the sum of One Thousand Five Hundred Dollars
($1,500) per acre upon the execution and delivery of this
license, and thereafter the same amount on the anniversary
data of its taking possession in each year for the first
three years of this license.
-4-
Agreement No. 4924-1
2.121
VOW
(4) in the fourth year of this
licens+s, licensee shall pay the autm, of Three Thousand
Dollar ($3,000) per acre (or a total annual payment of
s10,A00).
In the fifth year of this license and for four
years thereafter licenses shall pay Six Thousand Dollar
(#8,000) per acre per year (or a total annual payment of
$21,GOO) .
In the tenth year of this license and every five
years thereafter the annual rent shall be subject to upward
adjustment which reflects any cumulative percentage increase
for the five years preceding the adjustment in the consumers
price index for Los, Angeles/Long Beach, all urban consumers,
which is published in the monthly labor review of the V.S.
Department of Labor Bureau of Labor Statistics. However, in
no case shall the rent be reduced by said adjustment.
(5) Ngtig M All notices which are required to be
given by either party hereto to the other, shall be deemed
to have, boon duly given when wade in writing and deposited
in the United States mail, first class, postage prepaid,
addressed as followss
rS +
Agreement No. 4924-1
WPX\RVW\AGIt50945 4V14 11" 11
2121
eq. "MIROI
To Lioansora Southern California Edi on Company
Regional Manager
Land Services Division
Real Properties and Administrative services
P, 0. box 410
Long beach, California90801
To Liosnssse City Manager
City of E1 Segundo
1150 Main Street
El degundo, Cil 90946
Each Party hereto agrees to promptly notify the other of any
address change.
( 6 ) ' p „1 Licensee agrees to
insure its liabilities and/or require its construction
contractor or franchises to insure such liabilities, which
may arise from its activities horeund r, by the purchase of
a liability insurance policy with a combined Single Limit of
not less than one Million Dollars ($1,000,000.00) and shall
include Licensor as an additional insured. Licenses agrees
to provide evidence of such insurance upon request.
-6-
Agreement No. 4924-1
gPX�RVg1�hdOp4l3 �1V i �R�
2121
(7) Licensee agrees that at
all times during the term of this license and equipment used
by it or its agents, employees or contractors on and
adjacent to the licensed property shall be used and operated
o as to at all times maintain a minimum clearance of
seventeen (17) feet from all overhead electrical conductors
located on said lic n ed property.
Licensee also agrees that all trees or plants
located on the licensed property shall be maintained by
Licensee, and License shall trim or, if requested by
Licensor, shall remove any tree or other planting which
exceeds fifteen (18) feet in height.
(8) or In addition to the
rights of way and easements heretofore reserved, Licensor
specifically reserves for itself, its successors and
assigns, the right to periodically wash Licensor's elec-
trical insulators. Licensee shall notify Licensor of any
special event it has planned which would be interfered with
by such washing operations and Licensor shall use its best
efforts to avoid interfering with such event.
(9) nts Licensee must submit
complete improvement plans for the licensed property,
including grading plans, identifying all existing and
7-
WPX�RVK\A=O094b
Agreement No. 4924-1
proposed improvements. Licenses $hall obtain Lic nsor'$
written approval of said plans, including any subsequent
modification thereof, prior to making any use of the
property. said approval shall not be unreasonably withhold
by Licensor. Licensor shall not be called upon or required,
at any tiros, to make any improvements, alterations, changes
or additions of any nature whatsoever to the licensed
property. Licen es shall give Licensor 10 days notice of
its intention to commence construction prior to entering
upon the licensed property to commence construction.
(10) Licenses shall provide
Licensor with adequate access to all of Licensor's facili-
ties and at no time its there to be any interference with the
free movement of Licensorfs equipment and materials.
License* shall construct and maintain an access road
immediately parallel to the eastern boundary of the property
which shall run the full length of the licensed property.
Said road shall be fifteen (15) feet in width and provide
access to adjacent property of Licensor at the southern and
northern borders of the licensed property. said road
together with applicable driveway aprons and curb
depressions shall be capable of supporting a groes load of
forty (40) tons on a three -axle vehicle, and shall be
maintained by Licenses, at Licens s's expense, so as to be
-a-
Agreement No. 4924-1
51
121
passable at all timee® and shall be kept clear of any
planting or other obatructiona at all times so a■ to provide
ready access to Licensor's facilities. In connection with
e use of said licensed property Licensee shall maintain
the following clearances from the transmission line towers
t all ti al
a. A 25 -loot -radius around all tower logs
capable of supporting a groans load o
forty (40) tons on a three axle vehicle.
b. A 10 -foot -radius around all steel poles.
a. A 10 -fact -radium around all wood poles.
adequate controls for dust, odors and noise and taste
licensed property. Licensee also agrees to take preventive
action to eliminate such dust, - . wti noise or any other
nuisance which may disturb the adjacent or nearby community
. . .. -�.. • . _ � � . . 'i. . _ '3 it
wow,--
• . - _ .. ..
Q
W
Agreement No. 4924-1
wPx\RVN\0945
WQ14 I KAJJ Ja
2121
,ralINnff
property shall be made in accordance with all federal,
state, county and local lawns. Licensee further agrees to
dispose of any pesticides, herbicides or any other toxic
substances which are: declared to be either a health or
environmental h surd in such a manner as prescribed by
law. This will include, but not be, limited to, contaminated
containars, clothing, equipment or any other contaminated
material.
(13) Licensee shall not engage
in, or permit any other party to engage in, any activity on
the promises that violates any federal, stats county or
local law, rules or regulations pertaining to hazardous,
toxic or infectious materials and/or waste. Licensee shall
indemnify and hold Licensor, its directors, harmlaos from
any and all claims, lower damage, actions, causes of action,
expenses and/or liability arising from i aka of, spills of,
and/or contamination by or from hazardous materials and/or
wastes as defined by applicable laws or regulations, which
are attributable solely to the actions of, or failure to act
by, Licensee.
(14) Licensee shall
construct no underground facilities other than irrigation
and drainage pipelines and electrical and telephone lines.
-10-
WPBL\RVW\AGRD0945
Agreement No. 4924-1
2121
r' "rR11N011
All underground facilities installed on the right of vay
shall have a minimum cover of three feet and shall be
Capable of Withstanding a gross land of 40 tons on a 3 -axle
vehicle.
(16) Licensee agrees to
keep parkway and sidewalk areas adjacent to said licensed
property, if any, free of weeds and trash. Licenses further
agrees to maintain said parkways and to provide landscaping
in a manner that is compatible with the adjoining properties
and in a manner satisfactory to Licensor.
(16) ZmAgIDIL Licenses may install fencing on said
licensed property, provided Licenses obtains the prior
written approval of Licensor therefor. In the event
Licenses installs fencing, double drive gates sixteen (16)
feet in width shall be provided at each and of the access
road required in 9eotion 10 herein and shall be designed to
accommodate Licensorts looks. Any metallic fencing shall be
effectively grounded by Licensee. Licenses agreen to
maintain said fencing at Licenseefe sole cost and expense.
Notwithstanding the above, Licensee shall not install,
operate or maintain or cause to permit to be installed,
operated or maintained any electrically charged fence on the
licensed property.
-11-
WPX\RVW\ACR509619
Agreement No. 4924-1
r ""RIIR q
(17) fiJqngL Licensee agrees not to allow the
construction or placement of any sign, signboard or other
form of outdoor advertising on maid licensed property
without prior written approval of Licensor, fn the event of
a violation of this provision by Licensee or any one
claiming under Licensee, Licensor shall have the right to
enter upon said licensed property and to remove and dispose
of any such sign, signboard or other outdoor advertising to
charge the cost and expense of any such removal and disposal
to Licensee who agrees to pay the mama or demand.
(15) This license is given pursuant to
the authority of and upon and subject to the conditions
prescribed by General Order No. 69-C of the Public Utilities
Commission of the State of California dated and effective
July 10, 1995, which General Order No. 69-C, by this
reference, is hereby incorporated herein and made a part
hereof.
(19) Jnd2MnJJJ2&tJAM Licensee hereby agrees to
hold harmless and indemnify Licensor, its officers, agents
and employees, and its successors and assigns, from and
against all claims, to e, damage, actions, causes of action,
expense and/or liability arising from or growing out of loss
-12-
WPX\RVW\ 094b
Agreement No. 4924-1
21 1
r' °~ralPNn�
or damage to property, or injury to or death of persons,
including employees of Licensor resulting in any manner
+atsoover, directly or indirectly, by reason of this
license or the Use or occupancy of said licensed property by
Licensee or any person claiming under Licensee.
(30) UtilitIM&L Licences agrees to nay all charges
and assessments for or in connection with water, electric
current or other utilities which may be furnished to or used
upon said licensed property by License* during the continu-
ance of this license. It is further agreed that in the
event Licenses shall fail to pay the above-mentioned charges
when due, Licensor shall have the right to pay the same and
charge the amount thereof to Licensee, who agrees to pay the
same on demand, together with interest at the maximum rate
allowed by law, from the date of expenditure by Licensor.
(21) AUb=LJAgnAULL Licensor understands that it is
Licenseefs intent to franchise the operation of the
municipal golf course for which the licensed property is to
be used to an experienced golf course operator. Any such
franohise shall be deemed to be a sublicense, subject to
all the terms and conditions of this License, and Licenses
hall make this License a part of any such franchise
agreement. Licensor shall have the right to reasonably
13
Agreement No. 4924-1
WFX\RVW\AGRSO94b adui1 1 ft ki 1J
21 ?1
� nPAl�i�l1�
object to said oub-licensing based upon evidence of the
unreliability or fiscal incapacity of the proposed golf
course operator but shall not otherwise have any right to
objects it is specifically understood and agreed that in
the event of such a sub-licensop that the original Licensse,
to wit the city of El segundo, shall remain responsible for
all of the terms and conditions of this license and that in
vent of a violation, breach or failure to perform, that
Lioensor Way, at its option, enforce this License or
otherwise pursue it, legal remedies against either said
original Licenses or sub -licenses,
(23) Licensee agrees
to pay, when dust all taxes and assemsments which may be
levied upon any crops or personal property which Licensee
caused to be grown, placed or maintained upon the said
licensed property, and agrees to keep said licensed property
free from all liens, including but not limited to machanioe
liens, and encumbrances by reason of the use or occupancy of
said licensed property by Licenses or any person claiming
under Licenses. 3t is further agreed that in the event
Licensee shall fail to pay the above-mentioned taxes,
assessments, or liens when due, Licensor shall have the
right to pay the sums and charge the amount thereof to
Licenses, who agrees to pay the same on demand, together
-14-
Agreement No. 4924-1
COO tllhj-t,o��
rte\ \AWt5094S 2121
r "'4[1"M
with intereat at the maximum allowed by law, from the date
of expenditure by Licensor.
(33) 1 Licensee agreow that in the
exercise of its rights under thio licen si Licensee shall
comply with all applicable federal, stato, county and local
laws, and regulations in connection with its use of the
licensed property.
The existaname validity, construction, operation
and affect of this license and all of its terms and
provisions shall be determined in accordance with the laws
of the state of California.
(34) it is further agreed that if
Licensee shall retain possession of said licensed property
beyond the term hereof, or any renewal or extension hereof,
without the consent, express or implied, of Licensor, such
holding over may be terminated by Licensor at any time by
giving to License thirty (30) days' prior notice in writing
for that purpose, and shall be subject to all of the terms,
covenants and conditions of this license, and Liaansee shall
pay for such license during any such holding over, at the
last prevailing rate opacified in paragraph 3, "Considera-
tion" hereof.
-1s-
WPX\K"\AGRB096b
Agreement No. 4924-1
d�i�lV 1 fLf'V'vQ,
21 G' 1
0% ."ROOM
(25) 1n the Want Licenses
breaches or otherwise fails to perform any of the terms
hereof I this License shall be subject to termination at the
option of Licensor by Licensor giving Licensee so days
notice of its intention to terminate by reason of such
breach or failure to perform. Should Licenses fail to cure
such breach or perform within said 6o day period of time
this License shall be deemed terminated.
in the event of such termination, or when this
license expires by its exprome term, Licensee agrese, if so
requested in writing by Licensor, to remove at that time all
of its personal property from the licensed property and to
restore the ground to an near its original condition and
appearance as possible at its sole expense and risk. No
such termination hereof shall release Licensee from any
liability or obligation (whether of indemnity or otherwise),
which may have attached or accrued previous to or which may
be accruing at the time of, or by reason of such termination
or expiration.
Upon the termination of this license, Licensee
agrees to peaceably quit and surrender the licensed property
to Licensor in good order and condition. Any and all
16
Agreement No. 4924-1
WM\RVw\ASRDO94b 1
w rAllNnry
property of whatever kind or Character rwouining upon the
licensed property upon the reversion of the Liven or'
interest in the licensed property shall be and become the
personal property of Licensor, unless otherwise agreed in
writing by Lia n or, but this shall not prevent Licensor
from requiring Licensee to rG%WMr at Lioenseela expense and
risk, any and all such property remaining upon the lice sed
property.
Notwithstanding the foregoing, should Licene ers
activities on the licensed property interfere with or
endanger Licensor's use of the licensed property or in any
way create a nuisance or danger to the public or violate the
terms of this license, then Licensor shall be entitled to
terminate the license.
(26) to the event the use of said
licensed, property shall be abandoned by Licensee or said
licensed property shall not be used by Licensee for a period
of Ninety (90) days, then at the option of Licensor, the
license hereby granted shall be deemed terminated without
further notice. upon much termination, Licensee agrees to
comply with the conditions as specified in paragraph 26,
"Termination' hereof.
-17-
Agreement No. 4924-1
WPX\WW\AGR5094 b 10
(27) It any action, proceeding,
arbitration or other dispute arising out of or relating to
thio iia n e is comenoodi the prevailing party shall be
entitled to receive, in addition, to any other relief that
may be granted, the reasonable attarneyfu fees, costs and
expenses incurred by the prevailing party.
IN WITNESS WHEHHOF, the parties hereto have caused
this instruaont to be executed in duplicate as of the day
and year herein first above written
SOUTHUM CALIFORNIA EDISON COMPANY
"Licenser" �
BY
Real Properties' Adisiaitrtia
services
"Licensee"
By
CITY OF LL SEGUNDO
1
is-
Agreement No. 4924-1
98231 1295224
TXCOR TITLE INSURANCE COMPANY OF CALIFORNIA
`"'AllNnh"
f9W. RECORDED NOVEMBER 1, 1974 IN BOOK D6460 PAGE 733 OFFICIAL RFXCORDS.
;CX. 'RECORDED MARCH 1, 1975 IN BOOK D6578 PAGE 104, OFFICIAL RECORDS.
7Y. RECORDED MARCH 15, 1976 IN BOOM D7006 PAGE 412, OFFICIAL RECORDS.
SAID MORTGAGE HAS BEEN RELEASED AS TO THE EASEMENTS SHOWN AS ITEM NO'S. 8 AND
9.
s. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE
?URPOSES STATED HEREIN. AND INCIDENTAL PURPOSESr
mN FAVOR OF s SHELL OIL COMPANY► INCORPORATED, A CORPORATION
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
7OR PIPE LINES
RECORDED AUGUST 6p 1941 IN BOOK 19534 PAGE 320r OFFICIAL RECORDS
kFFECTS A STRIP OF LAND 10 FLET IN WIDTH, A CENTER LIME OF WHICH STRIP
IS DESCRIBED AS FOLLOWS1
3EGINNING AT A POINT WHICH BEARS SOUTH 47 DEGREES 30 MINUTES 43 SECONDS EAST
50.00 FEET FROM MOST WESTERLY CORNER OF LOT S AS SHOWN ON MAPS OF PROPERTY OF
3OUTHERN CALIFORNIA EDISON COMPANY, LTD., FILED IN BOOM 3 PAGE 1 OF MAPS1
7HENCE NORTH 09 DEGREES 00 MINUTES 06 SECONDS WEST 33.77 FEET TO POINT IN
NORTHERLY LINE OF LOT 8, WHICH BEARS NORTH 89 DEGREES 59 MINUTES 54 SECONDS
EAST 36.87 FF+ET FROM MOST WESTERLY CORNER OF LOT S.
ALSO BEGINNING AT POINT WHICH BEARS SOUTH 89 DEGREES 59 MINUTES 54 SECONDS
WEST 97.12 FEET FROM MOST EASTERLY CORNEROF LOT 9, AS SHOWN ON MAPS1 THENCE
NORTH 0 DEGREES 00 MINUTES 06 SECONDS WEST 62.18 FEET' THENCE NORTH 47 DEGREES
30 MINUTES 42 SECONDS NEST PARALLEL WITH AND 5.0 FEET AT RIGHT ANGLES FROM
'IORTHEASTERLY LINE OF LOTS 9 AND 10, 222.20 FEET TO POINT IN WESTERLY LINE OF
:.OT 10, WRICH LIES SOUTH 0 DEGREES 03 MINUTES 13 SECONDS WEST 6.77 FEET FROM
MOST NORTHERLY CORNER OF LOT 10.
ALSO BEGINNING AT A POINT IN EASTERLY LINE OF LOT 11 SHOWN ON MAP, WHICH LIES
5.0 FEET SOUTHWESTERLY FROM AND AT RIGHT ANGLES TO SOUTHEASTERLY PROLONGATION
OF NORTHEASTERLY LINE OF LOT 11; THENCE NORTHWESTERLY PARALLEL WITH AND 5.0
?EET AT RIGHT ANGLES FROM VARIOUS COURSES COMPRISING NORTHEASTERLY BOUNDARY OF
SOT 11 TO POINT IN WESTERLY LINE TREREOF, ALSO BEGINNING AT POINT IN SOUTHERLY
BINE OF LOT 12e BROWN ON MAPS, WHICH LYES 5.0 FEET SOUTHWESTERLY FROM AND AT
RIGHT ANGLES TO SOUTHEASTERLY PROLONGATION OF MOST SOUTHERLY COURSE OF
NORTHEASTERLY BOUNDARY OF LOT 121 THENCE NORTHWESTERLY DIRECTLY PARALLEL WITH
AND 5.0 FEET AT RIGHT ANGLES FROM VARIOUS COURSES AND 5.0 DEET MEASURED
:3ADIALL'1 FROM VARIOUS CURVES COMPRISING NORTHEASTERLY BOUNDARY OF SAID LOT 12
TO POINT IN NORTHERLY LINE THEREOF.
.ALSO BEGINNING AT POINT ON SOUTHERLY LINE OF LOT 13, SHOWN ON MAPS= WHICH LIES
NORTH 89 DEGREES 56 MINUTES 54 SECONDS WEST 16.01 FEET FROM MOST EASTERLY
CORNER OF LOT 131 THENCE NORTH 41 DEGREES 42 MINUTES 29 SECONDS WEST 36.39
?EET1 THENCE NORTH 14 DEGREES 28 DEGREES 04 MINUTES WEST 66.44 FEET1 THENCE
NORTH 26 DEGREES 54 MINUTES 21 SECONDS WEST PARALLEL WITH AND 5.0 FEET AT
RIGHT ANGLES FROM NORTHEASTERLY LINE OF LOT 13, 84.85 FEET TO POINT ON
WESTERLY LINE OF LOT 13, WHICH BEARS SOUTH 0 DEGREES 02 MINUTES 49 SECONDS
EAST 11.07 FEET FROM MOST NORTHERLY CORNER THEREOF.
8514095 PAGE 05
88331 1255274
Agreement No. 4924-1
708,
vvl a i sthv a,
TICOR TITLE INSURANCE COdIPANY OF CALIFORNIA 21 � 1
r °lownrl
7.AN ZASZMZNTAFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED 088 IN# AND INCIDENTAL PURPOSES,
IN FAVOR GF s C'IT'Y OF EL S UNDO, A MUNICIPAL CORPORATION
(NOR PRESENTATION 15 MADEAS TO THE PRESENT o NERBHIP OF SAID EAREMENT)
FOR, 1 PUDLIC ROAD AND HIGHWAY PURPOSES
RECORDED s FEBRUARY 26# 1953 IN BOOK 41087 PAGE 370, OFF:CYAL RECORDS
AFFECTS t THAT PORTION OF LOT 12 AS PER MAP NO, 8 OF TH". PROPERTY OF TRE
SOUTHERN CALIFORNIA EDI 'ON COMPANY v LTDRECORDED IN BOOK 3
PAGE S OF MAPSP DESCRISSED AS FOLLOW8s
BEGINNING AT THE NORTHEASTERLY CORNER'OF -SAID LOT 121 THENCE WESTERLY ALONG
TRZ NORTH LIME OF SAID LOT 12 TO THE EAST LINE OSP SEPULVEDA BLVD., AS
ESTABLISHED BY FINAL DECREE OF CONDEMNATION ENTERSED ON DZCENBZR 41 1934 IN
CASA' Nov 357880 SUPERIOR COURT, LOS ANGELES COUNTY# AS RECORDED IN BOOK 13174
PAGE 92, OFFICIAL RECORD61 THENCE SOUTHERLY ALONG SAID EAST LINE TO THE
NORTHEASTERLY LINE OF THAT CERTAIN RIGHT OF R'A'Y 80 FEET WIDE, DESCRIBED IN
DESED TO THE PACIFIC RAILWAY ELECTRIC RAILWAY COMPA1NY, RECORDED MAY 27# 1919 IN
BOOK 8750 PAGE 43 OF DEEDSI THENCE" SOUTHEASTERLY ALONG SAID NORTHEASTERLY LING
TO A POINT WHICH 18 10.00 FEET EASTERLY, MEASURED AT RIGHT ANGLES FROM SAID
EAST LINK OF SEPULVEDA BLVD.1 THENCE MORTRZASTERLY IN A DIRECT LINE TO A POINT
WHICH IS LOCATED 30.0 FRET SOUTHERLY; MEASURED AT RIGHT AN LES# RON SAID
NORTH, LINE OF LOT 12 AND 30.0 FEET ZASTZRLY, MEASURED AT RIGHT ANGLER, FROM ,
SAID EAST LINE OF SEPULVEDA BLVD., THENCE EASTERLY PARALLEL WITH SAID NORTH
LINE, TO THE NORTHEASTERLY LINE OF SAID LOT 121 THENCE NORTHWESTERLY ALONG
SAID LAST MENTIONED NORTHEASTERLY LINZ TO THE POINT OF BEGINNING.
THAT PORTION OF LOT 13, COUNTY OF LOS ANGELES AS PER MAP RECORDED 8,
DESCRIBED AS FOLLOWSs
BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 131 THENCE WESTERLY ALONG THE
SOUTH LINE OF SAID LOT 13 TO THE EAST LINE" OF SEPULVEDA BLVD. AS ESTABLISHED
BY SAID DECREE 08 CONDEMNATIONI THENCE NORTHERLY ALONG SAID EAST LINE TO ITS
INTERSECTION WITH TSM NORTHEASTERLY L%NE Of SAID LOT 131 THXNCE SOUTHEASTERLY
TO A POINT WHICH IS LOCATED 131.0 FEET NORTHERLY MEASURED AT RIGHT ANGLES,
FROM SAID SOUTH LINE OF LOT 13 AND 10.0 FEET EASTERLY, MEASURED AT RIGHT
ANGLES, FROM SAID EAST LINE Or SEPULVEDA BLVD., TUX14CS SOUTHERLY PARALLEL, WITK
SAID FAST LINE, 81.0 FEET TO A POINT' THENCE SOUTHEASTZRLY,IN A DIRECT LINE TO
A POINT WHICH IS LOCATED 30.0 FEET EASTERLYP MEASURED AT�RIGHT' ANGLES# FROM
SAID EAST LINE AND 30.0 FEET NORTHERLY, MEASURED AT RIGHT' ANGLES# FROM SAID
SOUTH LIM THENCE EASTERLY, PARALLEL WITH SAID SOUTH LINE# TO SAID
NORTHEASTERLY LINE OF LOT 131 THENCE SOUTHEASTERLY ALONG SAID NORTHEASTERLY
LINE TO THE POINT OF BEGINNING.
8. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR TSE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES,
IN FAVOR OF s STATE OF CALIFORNIA
(NO REPRESENTATION 16 MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
FOR s PUBLIC HIGHWAY
RECORDED s OCTOBER 7, 1971 AS INSTRUMENT NO. 317
AFFECTS s DESCRIBED AS FOLLOWSs
8514095 PACE 06
Agreement No. 4924-1
86331 1359224
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
uuIiLgio:gn,
21 1,
COMMENCING AT THZ INTERSECTION OF THIS EASTERLY LINE OF SEPULVEDA aOUL9VARvo AS
ESTABLISHED BY FINAL DECREE OF CONDEMNATION ENTERED ON DECEMBER 4, 1934 IN,
CASE NO. 357580, IN THE SUPERIOR COURT' OF THE STATE OF CALIFORNIA IN AND F6R
SAID COUNTY, AS RECOR090 IN BOOK 13174, PAGE 92 OF OFFICIAL RECORDS, IN SAID
OFFICE, WITH TRE SOUTHERLY LINE OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN
REED TO JOIN RAMANO AND ANTHONY BR NT, RECORDED IN 8009 0-4017, PAGE 134 OF
OFFICIAL RECORDSo IN SAID OFF'ICE1 THENCE NORTH 4 DEGREES 13 MINUTES 15 SECTION
EASTr 336.77 FEETI THENCE NORTH 0 DEGREES 04 MINUTES 00 SECONDS WEST, 125.58
FEET TO THE SOUTHEASTERLY LINE OF PARCEL "B" DESCRIBED IN DEED TO THE CITY OF
EL SEGUNDO, RECORDED IN BOOM 56432, PAGES 339 THROUGH 348, INCLUSIVE, OF
OFFICIAL RECORDS IN SAID OFFICE, AND THE TRUE POINT OF BEGINNINGI THENCE,
ALONG SAID SOUTHEASTERLY LINE, SOUTH fib DEGREES 24 MINUTES 34 SECONDS WEST,
1.57 FEET TO THE SOUTHWESTERLY LINZ OF SAID LOT'' 11; THENCE ALONG SAID
SOUTHWES'T'ERLY LINE, SOUTH 23 DEGREES 53 MINUTES 13 SECONDS EAST, 4.31 FEET TO
THE INTERSECTION Or SAID SOUTHWESTERLY LINE WITS THAT' CERTAIN COURSE
HEREINBEFORE DESCRIBED AS NORTH 0 DEGREES 04 MINUTES 00 SECONDS WEST, 225.59
FEET", SAID POINT BEING SOUTH 0 DEGREES 04 MINUTES 00 SECONDS EAST, 4.64 FEET,
MEASURED ALONG SAID COURSE, FROM THE NORTHERLY TERMINUS Or SAID COURSE# THENCE
ALONG SAID COURSE, NORTH 0 DEGREES 04 MINUTES 00 SECONDS WEST, 4.64 FEET,' TO
THE POINT OF BEGINNING,
9. AN EASEMENT AFFECTING TRE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES,
IN FAVOR OF s CITY OF EL SEGUNDO
(NO REPRESENTATION 16 MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
FOR s SLOPE
RECORDED : OCTOBER 10, 1972 AS INSTRUMENT NO, 4419
AFFECTS s THAT PORTION OF LOT 12, AB SHOWN ON MAP NO. 8 OF PROPERTY OF
SOUTHERN CALIFORNIA EDISON COMPANY, LTD, RECORDED IN BOOK 3,
PAGE 5 OF orriCIAL MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, DESCRIBED AS FOLLOWSi
BEGINNING AT THE NORT@EASTERLY CORNER OF THE LAND DESCRIBED AND DESIGNATED AS
PARCEL "B" IN TETE ROAD EASEMENT FROM SOUTHERN CALIFORNIA EDISON COMPANY, A
CORPORATION, TO THE CITY OF EL SEGUNDO, DATED JANUARY 19, 1957 AND RECORDED
JANUARY 27, 1958 IN BOOK 56432, PAGE 339 OF OFFICIAL RECORDS, IN THE OFFICE OF
SAID RECORDER; THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL S, SOUTH 68
DEGREES 24 MINUTES 34 SECONDS WEST 62 FEET; THENCE SOUTH 89 DEGREES 56 MINUTES
57 SECONDS EAST, 67.74FEET TO A POINT IN TRE EASTERLY LINE OF SAID LOT 12,
SAID POINT BEING SOUTH 23 DEGREES 47 MINUTES 54 SECONDS EAST 25.00 FEET,
MEASURED ALONG SAID EASTERLY LINE, FROM THE POINT OF BEGINNING; THENCE NORTH
23 DEGREES 47 MINUTES 54 SECONDS WEST, 25.00 FEET TO THE POINT OF BEGINNING.
8514095 PAGE 07
Agreement No. 4924-1
38231 1285324 C 708
;Wv" + 1 0t ►,
TICOR TITLE INSURANCE COMPANY Or CALIFORNIA 21 Z],
L0. AN EASEMENT ArrzcTXS0 THE PORTION OF SAID LAND AND FOR THE
? POSES STATED HERErMt AND XNCIOSSTAL PURPOSES #
""N FAVOR OF 1 CITY Of EL SEGUNDof A MUNICIPAL CORPORATION
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
7OR 1 StWER AND STOR14 DRAIN
11LCORDE0 1 NOVEMBER, 28# 1900 AS INSTRUMENT NO. 80-1192131
AFFECT$ 1 DESCRISEO AS FOLLOWS1
THAT PORTION Or LOT12 AS SHOWN ON A MAP ENTITLED "PROPERTY OF SOUTHERN
CALIFORNIA EDISONi COMP Y# LTD. TRAP N0, 8"# RECORDED IN BOOK 3# PAGES 1 TO 71
INCLUSIVE# OF OFFICIAL MPSF IN THE OFFICE OF"TIM COUNTY RECORDER OF SAID
COUNTY# DESCRIBED AS TOLL St
BEGINNING AT A FOUND 2 INCH IROM PIPE WITH BRASS CAP SET AT A POINT IN THE
4ORTHEASTERLY BOUNDARY Or SAID LOT 12# SAID POINT ALSO BEING IN THE
SOUTHWESTERLY BOUNDARY Or THE 143.84 ACRE PARCEL OF LAND SHOWN ON A MAP FILED
:N BOOM 09# PAGES 25 ,AND 25 OF RE'C'ORDS OF SURVEYS IN THE OFFICE Of SAID COUNTY
RECORDER# SAID POINT 391KG DISTANT NORTH 75 DEGREES 13 MINUTES 23 SECONDS
WEST# 33.31 FE FROM THE SOUTHEASTERLY TERMINUS OF THAT PARTICULAR COURSE
SHOWN AS SOUTH 75 DEGREES 13 MINUTES 23 SECONDS EAST, 737.68 FEET" ON SAID
14AP1 THENCE SOUTH 46 DEGREES 09 M'INUTC 45 SECONDS WEST# 193.34 FEET TO THE
POINT Of INTERSECTION OF THE NORTHEASTERLY PROLONGATION OF THE NORTHWESTERLY
LINE OP THAT' CERTAIN PARCEL OF LAND DESCRIBED IN A DEED TO PACIFIC ELECTRIC
LAND COMP Y# RECORDED JULY 7'# 1914# IN BOOM 5839# PAGE 185 OF DEEDS# IN THE
OFFICE OF SAID COUNTY RECORDER# WITH THE NORTHEASTERLY BOUNDARY OF THAT
CERTAIN 00 FOOT WIDE STRIP OF 'LAND DESCRIBED IN A DEED TO PACIFIC ELECTRIC
RAILWAY COMPANY"# RECORDED 14AY 27# 1912# IN BOOK 5750# PAGE 43 OF DEEDS IN THE
OFFICE OF SAID COUNTY RECORDERf, SAID POINT ALOS BEING IN THE SOUTHEASTERLY
BOUNDARY OF SAID LOT 12, SAID POINT" ALSO BEING IN THE SOUTHEASTERLY BOUNDARY
OF SAID LOT 12# SAID ;POINT MOO BEING IN THE WESTERLY PROLONGATION OF A
NON -TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 914.93 FEET, AS SHOWN
"N THE SOUTHERLY LINE Or SAID 143.04 ACRE PARCEL OF LAND, A RADIAL OF SAID
CURVE FROM SAID POINT SEARS NORTH 1 DEGREES 00 MINUTES 23 SECONDS WEST! THENCE
"WESTERLY 04.20 FEET' ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 5 DEGREES 15
14INUTE'S 22 SECONDS1 THENCE NORTH 46 D GREES 09 MINUTES 45 SECONDS EAST, 215.77
?SET TO SAID NORTHEASTERLY LINE OF LOT 12; THENCE ALONG SAID NORTHEASTERLY
LINE, SOUTH 7p DEGREES 13 MINUTES 23 SECONDS EAST 70.25 FEET TO THE POINT OF
BEGINNING.
11. COVENANTS# CONDITIONS AND RESTRICTIONS IN THE ABOVE RECORDED
INSTRUMENT.
RESTRICTIONS# IF ANY# BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN
ARE DELETED,
12. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES#
IN FAVOR OF i SOUTHERN CALIFORNIA GAS COMPANY# A CORPORATION
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
FOR ' : GAS PIPE LINES
8514095 PAGE 08
Agreement No. 4924-1
88231 1255234 G 70�
*-AQi v ►
TICOR TITLE INSURANCE CO"ANY OF CALIFORNIA 21 %J,
RECORDED s DECEMBER 17v 1980 AS INSTRUMENT N0, 80.1268253
AFFECTS t DESCRIBED AS FOLLOWSs
A STRIP OF LAND, 10 FEET WIDE, LYING WITHIN THAT PORTION OF LOT 12v AS SHOWN
ON A MAP ENTITLED "PROPERTY OF SOUTHERN CALIFORNIA EDISON CO ANY, LTD., MAP
NO. B"v RECORDED IN BOOR 3v PAGES 1 TO 7v INCLUSIVNr Or OFFICIAL MAPSiv IN THffi
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, THE CENTERLINE OF SAID STRIP OF
LAND BEING DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHEASTERLY BOUNDARY of SAID LOT 121 SAID POINT
ALSO BEING IN THE SOUTHWESTERLY BOUNDARY OF THE 143,84 ACRE PARCEL or LAND
SHOWN ON A MAP FILED IN BOOK 89v PANES 25 AND 26 OF RECORD OF SURVEYS, IN THE
OFFICE OF SAID COUNTY RECORDER, SAID POINT BEING DISTANT NORTH 75 DEGREES 13
MINUTES 23 SECONDS" WESTv 33,31 rzzT- FROM THE SOUT99ASTERLY TERMINUS OF THAT
PARTICULAR COURSE SHOWN AS "SOUTH 75 DEGRZZS 13 MINUTES 23 SECONDS EAST,
737.68 FEET" AS SHOWN ON SAID RECORD OF SURVEY MAP, THENCE BOUTS 46 DEGREEl1 09
MINUTES 45 SECONDS WEST, 193.34 DEET TO THE POINT OF INTERSECTION Or THE
NORTHEASTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF THAT CERTAIN PARCEL Of
LAND DESCRIBED IN TEX DEED TO PACIFIC ELECTRIC LAND COMPANY, RECORDED JULY 7,
1914, IN BOOK 6839, PAGE IIs OF DEEDSv IN THE OFFICE OF SAID COUNTY RECORDER,
WITH THE NORTHEASTERLY BOUNDARY OF THAT CERTAIN 80 FOOT WIDE S'TRI'P OF LAND
DESCRIBED IN A DEED TO PACIFIC ELECTRIC RAILWAY COMPANY, RECORDED MAY 27v
1913, IN BOOK 5790, PAGE 43 OF DEEDS, IN THE OFFICE OF SAID COUNTY RECORDERv
SAID POINT ALSO BEING IN THE SOUTHEASTERLY BOUNDARY OF SAID LOT 12, SAID POINT
ALSO BEING IN THE WESTERLY PROLONGATION OF A NON -TANGENT CURVE CONCAVE
NORTHERLY HAVING A RADIUS OF 914093 FEET, AS SHOWN IN TRZ SOUTHERLY LINE OF,
SAID 143,84 ACRE PARCEL OF LAND, A RADIAL OF SAID CURVE FROM SAID POINT BEARS
NORTH 1 DEGREES 00 MINUTES 23 SECONDS WEST; THENCE WESTERLY 77.46 FEET ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 4 DEGREES 51 MINUTES 03 SECONDS TO A
POINT ON A LINE PARALLEL WITH AND 55.00 FEET NORTHWZSTERLY, MEASURED AT RIGHT
ANGLES, FROM THE COURSE REREINBEFORE DESCRIBED AS "SOUTH 46 DEGREES 09 MINVTSS
45 SECONDS WEST, 193.34 FEET" AND ITS SOUTHWESTERLY PROLONGATION, SAID POINT
ALSO BEING THE TRUE POINT of BEGINNING OF THIS DESCRIPTION' THENCE ALONG SAID
PARALLEL LINE, NORTH 46 DEGREES 09 MINUTES 45 SECONDS EAST, 214.30 FEET TO A
POINT IN THE NORTHEASTERLY BOUNDARY OF SAID LOT 12.
THE SIDELINES or SAID STRIP Or LAND SHALL BE PROLONGED OR SHORTENED SO AS TO
TERMINATE IN TEE NORTHEASTERLY AND SOUTHEASTERLY BOUNDARIES OF SAID LOT 12,
13. COVENANTS, CONDITIONS AND RESTRICTIONS IN THE ABOVE RECORDED
INSTRUMENT,
RESTRICTIONS, IF ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN
ARE DELETED.
L4. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDL"NTAL PURPOSES,
IN FAVOR OF : CITY OF EL SEGUNDO, A MUNICIPAL CORPORATION
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
FOR : ROAD PURPOSE
RECORDED : MAY 4, 1961 AS INSTRUMENT NO, 81-445902
AFFECTS i DESCRIBED AS FOLLOWSs
8514095 PAGE 09
Agreement No. 4924-1
88331 1355124 4 706
TICOR TITLE INSUMCM COMPANY OF CALIFORNIA 21 P1
r' °p�11Nnn
THAT PORTION OE LOT 12 AS ON OWN ON A MAY ENTITLED "PROPSRTY OF SOUTHERN
CALIFORNIA EDISON COMPANY, LTD., N0. 8" RECORDED IN BOOK 3, PACES 1 TO 7,
INCLUSIVE 0'F OFFICIAL Se IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DSSCRIBSD AS FOLLOWS$
PARCEL 18
A STRIP OF LAND 119.00 FEET WIDE LYING 60.00 FACET NORTHWESTERLY AND 55.00 FEET
SOUTHEASTERLY MEASURED AT RIGHT ANGLES► RESPECTIVELV" FROM THE FOLLOWING
DESCRIBED LINE4
BEGINNING AT THE BOUTHSASTZRLY TERMINUS OF THAT PARTICULAR COURSE" SHOWN AS
"SOUTH 44 DEGREES 21 MINUTES 07 SECONDS EAST, 1393,78 FEET" ALONG THE
NORTHEASTERLY LINE OF SAID LOT 12, SAID COURSE AL80 SHOWN ON A MAP FILED IN
BOOK 89 PAGES 25 AND 26 OF RECORDS OF SURVEY IN THE OF1'ICE OF RAID CoUNTY
RECORDERI THENCE WORTH 44 DXGRE8S 21 MINUTES 07 SECONDS WESTP 129.00 FEET
ALONG SAID NORTHEASTERLY LIME TO THE TRUE PO'I'NT" OF 990INNING1 THENCE SOUTH 49
DEGREES 38 MINUTES 53 SECONDS WEST, 119.55 FEET TO THE SOUTHWESTERLY zozwz OF
SAID LOT 11.
THE SIDELINES OF SAID STRIP OF LARD SHALL BE PROLONGED OR SHORTENED 80 AS TO
TERMINATE IN SAID SOUTHWESTERLY LINZ.
PARCEL 2s
THAT PORTION OF LOT 12 AS BROWN ON A MAP ENTITLED "PROPZRTY OF SOUTKZRN
CALIFORNIA EDISON COMPANY, LTD., MAP NO. 8" RECORDED IN BOOK 3, PAGES 1 TO 7,
INCLUSIVE, OF OFFICIAL S, IN THE OFFICE OF THE COUNTY RECORDZR OF SAID
COUNTY, DESCRIBED AS FOLLOWS$
BEGINNING AT THE NORTHERLY CORNER OF THE ABOVE DESCRISZD PARCEL 1> THENCE
ALONG THF NORTHWESTERLY LINE OF SAID PARCEL 1, BOUTS 45 DEGREES 36 MINUTES 53
SECONDS WEST, sa.00 FEZ"F TO A POINT OF CUSP i4ITs A T' ENT CURVE CONCAVE
NORTHWESTERLY OAVXNG A RAvius OF 75.00 FEET &NO FROM W91CH POINT A, RADIAL
BEARS NORTH 44 'DEGREES 21 MINUTES 07 SECONDS 4t STi THENCE 'NORTHERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 50 DEGREES 38 MI ES 56 SECONDS A DISTANCE
OF 66.30 FEET TO THE NORTHEASTERLY LINE OF SAID LOT 121 THENCE SOUTH 44
DEGREES 21 MINUTES 07 SECONDS EAST, 27.44 FEET, MORE OR LESS, ALONG SAID
NORTHEASTERLY LINZ TO THE POINT OF BEGINNING.
PARCEL 3s
THAT PORTION OF LOT 12 AS SHOWN ON A MAP ENTITLED "PROPERTY OF SOUTHERN
CALIFORNIA EDISON COMPANY, LTD. MAP NO. 8" RECORDED IN BOOK 3, PAGES 1 TO 7,
INCLUSIVE, OF OFFICIAL MAPS, IN THE OFFICE Or THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLONSi
BEGINNING AT TRZ EASTERLY CORNER OF THE ABOVE DESCRIBED PARCEL 1' THENCE ALONG
THE SOUTHEASTERLY LINE OF SAID PARCEL 1, SOOTS 45 DEGREES 36 MINUTES 53
SECONDS WEST, 51.01 FEET TO A POINT OF CUSP WITH A TANGENT CURVE CONCAVE
SOUTHERLY HAVING A RADIUS OF 100.00 FEET AND FROM WHICH POINT A RADIAL BEARS
SOUTH 44 DEGREES 21 MINUTES 07 SECONDS EAST= THENCE EASTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 30 BDGS 40 MINUTES 20 SECONDS A DISTANCE OF 53.53
FEET, TO THE NORTHEASTERLY LINE OF SAID LOT 12; THENCE NORTH 44 DEGREES 21
MINUTES 07 SECONDS WEST, 13.99'FEET, MORE OR LESS, TO TSE POINT OF BEGINNING.
8514095 PAGE 10
Agreement No. 4924-1
982?L 1SP5734 G� 708
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LBO of CMMONS MW Rm8TRIC' ZON IN Ta A,' D
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8514095 PAGE 11
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Agreement No. 4924-1
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
GUARANTEE N0. S 8514095
TITLE OPPICER s At WILLIAMS
FEE s $400.00
REFERENCE s CITY OF EL SEGUNDO OOLP COUR99
EFFECTIVE DATES JULY 28, 1988
ASBURED 7
BURKs WILLIAM A SORENSEN
L%A8lLITYs $25,000.00
NATURE OF ACTIONS TO CONDEMN
THE NECESSARY PARTIES DEFENDANT IN AN ACTION TO
CONDEMN
ARE AS HEREIN STATED.
708
i�lJty t f�ih�'u�;
2121
TITLE TO THE ESTATE OR INTEREST REFERRED TO HEREIN, AT THE DATE
HEREOF, 18 VESTED INS
SOUTHERN CALIFORNIA EDISON COMPANYP LTD.
TETE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR
REFERRED TO COVERED BY THIS GUARANTEE IS A FEE.
EXCEPTIONS]
1. ANY TAXES, BONDS OR ASSESSMENTS WILL BE REPORTED LATER.
2. THE LIEN OF SUPPLEMENTAL TAXES► IF ANY, ASSESSED PURSUANT TO THE
PROVI8ZON8 OF CHASTER 3.5 [COMMENCING WITH SECTION 75) OF THE REVENUE
AND TAXATION CODE OF THE STATE" OF CALIFORNIA.
1i
3. 1' AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES,
IN FAVOR OF : COUNTY OF LOS ANGELES
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
FOR s PUBLIC ROAD AND HIGHWAY
RECORDED DECEMBER 9, 1913 IN BOOK 5570, PACE 48 OF DEEDS
AFFECTS s THE NORTHERLY 20 FEET
Ii it
.
8514095 PACE 01
Agreement No. 4924-1
88231 1295224 G 708
,vu 1u1hi (krs
TICOR TITLE INGURANCE COMPANY OF CALIFORNIA 21 21
4. AN EASEMENT AFFECTING TRE PORTION Or SAID LAND AND FOR THE
PURPOgEB STATED HERNIN, AND INCIDENTAL PURPOSES,
IN FAVOR OP s STATE OF CALIFORNIA
(NO REPRESENTATION IS MON AS TO THE PRESENT OWNERSHIP OF SAID EASZMENT)
FOR s PIPE LINES, PUBLIC UTILITIES, SPUR TRACKS AND GAS PIPES
RECORDED IN BOOK 9840 PAGE 33r OFFICIAL RECORDS
AFFECTS s STREETSr ROADS AND ALLEYS
9. THE INTEREST OF SOUTHERN CALIFORNIA EDISON COMPANY 28 SUBJECT TO$
A MORTGAGE OR DEED OF TRUST DATED AS OF OCTOBER If 1913, EXECUTED BY SOUTHERN
CALIFORNIA EDISON COMPANY, A CORPORATION TO HARRIS TRUST AND SAVINGS BANKS AN
ILLINOIS CORPORATION, AND PACIFIC -SOUTHWEST TRUST AND SAVINGS SANK, WHICH HAS
BEEN SUCCEEDED BY SECURITY -FIRST NATIONAL BANK OF LOS ANGELES, A CORPORATION,
TRUSTEE, TO SECURE AN INDEBTEDNESS EVIDENCED BY BONDS, AND ANY OTHER AMOUNT®r
PAYABLE UNDER THE TERMS THEREOF, RECORDED NOVEMBER 15, 1913, IN BOOK 2963 PAGE
1 OF OFFICIAL RECORDS AND RE-RECORDED SEPTEMBER 16, 1935, IN BOOK 13715 PAGE 1
OF OFFICIAL RECORDS.
A CERTIFICATE OF RE -RECORDATION OF SAID MORTGAGE OR DEED OF TRUST AND OF
9UPPLEM,ENTAL INDENTURES, A., B., C•, AND D., HEREAFTER BROWN WAS RECORDED
SEPTEMBER 13, 1939, IN BOOK 16891 PAGE 7.60 or OFFICIAL RECORDS.
THE FOLLOWING INDENTURES SUPPLEMENTAL THERETO ARE FOUND OF RECORDS
A. DATED MARCH 1# 1937, RECORDED APRIL 24, 1927, IH BOOK 6634 PAGE 339 OF
OFFICIAL RECORDS, AND RE RECORDED SEPTEMBER 16, 1935 IN BOOK 13681 PAGE 78 or
OFFICIAL RECORDS.
B. DATED APRIL 29r 1935r RECORDED APRIL 29, 1935, IN HOOK 13333 PAGE 352 OF
OFFICIAL RECORDS.
C. DA'Z'ED .TUNE 24r 1935, RECORDED JULY 1, 1935, IN BOOK 13416 PAGE 386 OF
OFFICIAL RECORDS.
D. DATED SEPTEMBER 1, 1935, RECORDED SEPTEMBER 27, 1935, IN BOOK 13730 PAGE
15 OF OFFICIAL RECORDA.
E. DATED AUGUST 151 1939, RECORDED AUGUST 181 1939, 80 16833 PAGE 164 OF
OFFICIAL RECORDS.
F. DATED AUGUST 31r 1939, RECORDED AUGUST 24, 1939, IN BOOK 16889 PAGE 146 Or
OFFICIAL RECORDS,
G. DATED SEPTEMBER 1, 1940, RECORDED OCTOBER 15, 1940, IN BOOK 17933 PAGE 1
OF OFFICIAL RECORDS.
CERTIFICATE OF RE -RECORDATION OF SAID MORTGAGE OR DEED OF TRUST AND OF THE
SUPPLEMENTAL INDENTURES ABOVE ENUMERATED WERE RECORDED AUGUST 16, 1943, IN
BOOK 20215 PAGE 143 OF OFFICIAL RECORDS, AND KAY 12, 1947, IN BOOK 24610 PAGE
1 OF OFFICIAL RECORDS.
H. DATED JANUARY 15r 1948, RECORDED JANUARY 21r 1948# IN BOOK 25876 PAGE 356,
OFFICIAL RECORDS.
8514095 PAGE 02
Agreement No. 4924-1
58931 1255224 G r,,, :,
21 a1
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
I. DATED AUGUST IYi, 1948, RECORDED AUGUST 18, 1948 IN BOOK 36958 PAGE 1 OF
OFFICIAL RECORDS,
J. DATED FEBRUARY 15, 1951, RECORDED FEBRUARY Z1, 1951, IN BOOK 35636 PAGE 2
OF OFFICIAL RECORDA.
K. DATED AUGUST 15, 1951, RECORDED AUGUST 299 19510 IN BOOK 37100 PAGE 321 OF
OFFICIAL RECORDS. It
L. DATED AUGUST 151 1953► RECORDED AUGUST 26, 1953► IN BOOK 43997 PAGE 1 OF
OFFICIAL RECORDS,
No DATED AUGUST 19, 19541 RECORDED AUGUST 18, 1954, IN BOOK 45343 PAGE 1 OF
0rFIS iAL RECORDS.
No DATED AUGUST 19, 1956► RECORDED APRIL 17, 1955 IN BOOK'50909 PAGE 68 OF
OFFICIAL RECORDS.
0. DA'Z'ED FEBRUARY i5, 1957r RECORDED FEBRUARY 19, 1957, IN BOOK 53680 PASSE 8
OF OFFICIAL RECORDS.
P. DATED JULY 1, 1957, RECORDED JULY 1, 1917, IN BOOK 54935 PAOE 04 OF
OFFICIAL RECORDS,
0• DATED AUGUST 151 1997, RECORDED AUGUST 27, 1937, 8B 55451 PAGE 116 OF
OFFICIAL RECORDS,
R. DATED AUGUST 19, 1958, RECORDED AUGUST 25, 1958, IN BOOK D-196 PAGE 105 OF
OFFICIAL RECORDS.
S. DATED JANUARY 15, 1960, RECORDED JANUARY 26, 1960F IN BOOK T-1117 PASSE 165
OF OFFICIAL RECORDS.
T. DATED AUGUST 15, 1960, RECORDED AUGUST 23,'1960, IN BOOK D-953 PAGE 252 OF
OFFICIAL RECORDS.
U. DATED APRIL 1, 19611 RECORDED APRIL 4, 1961, IN BOOK 5-1741 PASSE 231 OF
OFFICIAL RECORDS.
V. DATED MAY 1, 1962, RECORDED MAY 1, 19621 IN BOOK S-1126 PAGE 237 OF
OFFICIAL RECORDS.
W. DATED OCTOBER 15, 1962, RECORDED OCTOBER 30, 1962, IN BOOK'T-2673 PASSE
873, OFFICIAL RECORDS,
X. DATED KAY 15, 1963, RECORDED MAY 22, 1963, IN BOOK T-3030 PAGE 470 OF
OFFICIAL RECORDS.
AA, DATED FEBRUARY 15, 1964, RECORDED FEBRUARY 25, 1964, IN BOOK T-3940 PASSE
20 OF OFFICIAL RECORDS, 3828.
9B. DATED FEBRUARY 1, 1965, RECORDED FEBRUARY 9, 1965, IN BOOK D-2793 PAGE
418 OF OFFICIAL RECORDS, INSTRUMENT NO. 3447.
CC. DATED FEBRUARY 1, 1965, RECORDED FEBRUARY 9, 1955, IN BOOK D-2793 PAGE
8514095 PAGE 03
Agreement No. 4924-1
89231 1255224 G 0a
2121
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
r '"R�MNInn
445 OF OFFICIAL RECORDS, INSTRUMENT NO. 3448.
dD. DATZD MAY Is 19d6, RECORDED MAY 11, 1966, IN BOOK 0-3301 PACE 319 OF
OFFICIAL RECORDS, INSTRUMENT NO. 2669.
EE. DATED AUGUST 161 1955, RECORDED AUGUST 23, 1966, IN BOOK 0-3406 PA4E631
OF OFFICIAL RECORDSr INSTRUMENT 2249.
FF. DATED AUGUST 1S, 1966, RECORDED AUGUST 23r 1956, IN BOOK 0-3406 PAGE 673
OF OFFICIAL RECORDS, INSTRUMENT N0. 2250. It
OG. DATED MAY lo 1967, RECORDED MAY 10, 1967, IN BOOK D-5340 PACK 706 OF
OFFICIAL RECORDS, INSTRUMENT NO. 3267'.
Calf. DATED FEBRUARY 1, 1958► RECORDED FEBRUARY 6► 1969, IN BOOK D-3906 PAGE 71
OF OFFICIAL RECORDSr INSTRUMENT NO. 1999,
II. DATED FEBRUARY 1, 1968, RECORDED FEBRUARY 6, 1968 IN BOOK D-3906 PAGE 93
OF OFFICIAL RECORDS, INSTRUMENT N0, 2000.
JJ. DATED AUGUST 1r 1968, RECORDED AUGUST 21r 1968, IN BOOK R-3047 PAGE 651
OF OFFICIAL RECORDSr INSTRUMENT 510. 2161.
KK, DATED JANUARY 15r 1969, RECORDED JANUARY 23r 1969r IN BOOK D-4299 PAGE
611 OF OFFICIAL RECORDS, INSTRUMENT NO., 2271,
LL. DATED JANUARY 151 1969, RECORDED JANUARY 23e 1969, IN BOOK D-4359 PAGE
627 OF OFFICIAL RECORDB, INSTRUMENT NO, 2271.
MM. DATED OCTOBER 1, 1969, RECORDED OCTOBER 11, 1969 IN BOOK 0-4532 PAGE 5 OF
OFFICIAL RECORDS, INSTRUMENT NO. 1826.
NN. DATED OCTOBER It 1969, RECORDED OCTOBER 21, 1969 IN BOOK 0-4532 PAGE 19
OF OFFICIAL RECORDBr INSTRUMENT NO. 1827.
00. DATED DECEMBER 1r 1970r RECORDED DECEMBER 3, 1970 IN BOOK D-4906 PAGE 72
OF OFFICIAL RECORDS, INSTRUMENT N0, 2202.
PP. DATED DECEMBER 1, 1970, RECORDED DECEMBER 3r 1970 IN BOOK D-4906 PAGE 90
OF OFFICIAL RECORDS, INSTRUMENT NO. 2203.
00. DATED SEPTEMBER 15r 1971, RECORDED SEPTEMBER 21r 1971 IN BOOK T-7213_
PAGE 971 OF OFFICIAL RECORDS, INSTRUMENT NO. 2349.
RR. DATED SEPTEMBER 13, 1971, RECORDED SEPTEMBER 21r 1971 IN BOOK T 7114 PAGE
31, OFFICIAL RECORDS, INSTRUMENT NO. 2350.
SS. DATED AUGUST 15, 1972, RECORDED AUGUST 16, 1972 IN BOOK D-5569 PAGE 726,
OFFICIAL RECORDS INSTRUMENT N0, 2643
TT. DATED AUGUST 15r 1972, RECORDED AUGUST 16, 1972, IN BOOK D-5569 PAGE 715,
OFFICIAL RECORDS, INSTRUMENT NO. 2642.
UU. . RECORDED FEBRUARY 1, 1974 IN BOOK D668 PAGE 403 OFFICIAL RECORDS.
W. RECORDED JULY 1, 1974 RECORDED IN BOOK D6350 PAGE 122 OFFICIAL RECORDS.
8514095 FAGS 04
Agreement No. 4924-1
EXHIBIT "D"
GOLF COURSE AND PREMISES IMPROVEMENTS
Agreement No. 4924-1
Exhibit D
GOLF COURSE AND PREMISES IMPROVEMENTS
GOLF CO'U'RSE IMPROVEMENTS
Lessee and a Took Force appointed by the City Council shall work togedwr 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 comistent with the conceptual design.
luring the Course of design and ultimte co nuc, a "standard of quality" shall be
maintained throughout the newly constructed fa . ty as mutuolly agreed upon by both parties.
The use of the word "Quality" in this agreement is intended to mom that the building, building
materials and famishings shall convey design interest and coordination, crafternewhip and use
of durable and visually attractive finishes and materials. Minh 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 gaff rafing of the facility droll be maintaimd or improved,
that the level of difficulty in playing the course shall be maintained or improved, ln'both the
case of the buildings and the course Improvements, the City's intent is that they shy 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 "tum -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 v = Facility shall include a security ca,rnera system that
provides surveillance of the interior and exterior of the facility to the
satisfaction of the ESFD,
® l kited r°ea ' " ; , - 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 Restr ores - separate male and female restrooms, fully ADA compliant to
specifications that are current as of construction year. Restrooms shall
Agreement No. 4924-1
facility
iQatdolor oaliow ce with '" Outdoor space shall include hard
floorsurfaces concrete or other• • • ' ismaterial) and •
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 1 The balance of outdoor • not •
shall accommodate seating foradditional 20-35: area shall
beingalso be equipped with appropriate space heaters, fighting and outdoor
furniture/ seating,
> Construction of a practice putting green and practice chipping/bunker area V%dth
the one contiguous putting green surface area being no less than 4,500 square
feet with the intent that the area shall be r : • by
physical constraints of the site. Priorto construction,• s putting gTeen
Agreement No. 4924-1
green, Any remainder putting green may be utilized as a puttinggreen
the TopGolf site.
> Screening poles and safety netting will be installed to ensure the safety
galfers, the public,automobiles, . surrounding properties and rights of way
modifications:per golf course architect recommendations
> Golf course
o Upon completion of construction, the golf course with described
Improvements shall maintain or Increase in of difficulty compared
purposesto 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 safety rating consistent or safer than existing conditions, For
the of determining golf_
Envelope, Safety
(MSE) shall be utilized as adopted by the United Stated
roadwaysAssociation such that all factors applicable from the Dean vs. MeStain
(Colorado) case shall be applied in the calculations of structures and
. any physicallyportions
agreedthat during the design process, more stringent safety measures are
Implemented in California, the mutually upon Golf Course
Architect shall determine the best . for type
hole,o The course shall have a n-tinimurn of two Par 4 holes. While no specific
definition has been established in yardage for distinguishing a range for a
Par 4 effective :; defined by the USGA in conjunction consultation
considered to maintain yardage with a range of 230-270 yards, In
developing yardage, the Lessee and City will maintain an o�jective
approach while pr.
o Construction of new hole 3 green and bunkers and tee box,
o Reset both par 4 tee boxes to accommodate new modifications,
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 app. .(approved
yardageby the Lessee and City), to expand tee boxes. The intention of this effort is
to increase .boxes
courseUSGA standard of 1,500 (or current minimum) yardage for a nine hole
. establish a CourseCourse
the course modifications result In the totalyardage_ the course
shortened slessened from its current and existing state of play, The total
current yardage of play for the existing ntne-hole course is approximately
1,340 yards from the white tee The City will be responsible
Agreement No. 4924-1
• any costs,•t including design or • :r •• costs, for
Course Rating and Slope per USGA guidelines,
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'J •numberof bunkers : • .: • traps will • - base • • :.,
approved golfcoursearchitectrecommendations,
o When possible, Lessee shall utilize existing and available poles and
netting • otherwise!i a'• by • • i.. project,
o Hole three will be redesigned In such a fashion to maintain a mhiimum
Par 3 • play over the existing northern body of water feature,
Agreement No. 4924-1
3P
Agreement No. 4924-1
Agreement No. 4924-1
Agreement No. 4924-1
EXHIBIT "E"
PERMITTED EXCEPTIONS
[TO BE FINALIZED AND ATTACHED WITHIN 60 DAYS FROM THE
COMMENCEMENT DATE]
Agreement No. 4924-1
EXHIBIT "F"
FORM OF MEMORANDUM OF LEASE
THIS EXHIBIT TO BE PREPARED PRIOR TO EXECUTION OR CONDITION
PRECEDENT TO BE ADDED REQUIRING THAT IT BE PREPARED WITHIN NINETY
DAYS AND ATTACHED HERETO.
Agreement No. 4924-1
EXHIBIT "G"
PROTOTYPE FACILITY
Agreement No. 4924-1
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EXHIBIT "H"
3,18.14
Agreement No. 4924-1
Agreement No. 4924-1
CONSTRUCTION GUARANTEE AGREEMENT
THIS CONSTRUCTION GUARANTEE AGREEMENT (this "Guaranty") is executed
and delivered as of the day of, 2015, by TopGolf International, Inc., a
Delaware corporation ("TGI" or "Guarantor"), whose address is 8750 N. Central Expressway,
Suite 1200, Dallas, Texas 75231 for the benefit of the City of El Segundo (referred to herein as
"City" or "Lessor").
A. Pursuant to that certain Due Diligence and Ground Lease Agreement entered into
on or about wmmmm..wwwwwmmmmm� 2015 (the "Contract") by and between ES Centercal,
LLC, a Delaware limited liability company (referred to herein as the "Company" or "Lessee")
and the City, and subject to the terms and conditions set forth in the Contract, as may be
amended in writing from time to time, the Company has agreed to complete, or cause to be
completed, certain improvements to the Golf Course and the Premises as described in the
Contract, or return the Premises to the same or better condition as it existed prior to the
Commencement Date.
B. TopGolf USA El Segundo, LLC ("TG El Segundo") is a wholly-owned
subsidiary of TGI and is contemplated as being a sublessee of the Company and it is one of the
Conditions Precedent under the Contract that TG El Segundo become the sublessee under a
Ground Sublease with Company covering the Premises (the "Sublease").
C. As a condition precedent to the City's agreeing to enter into the Contract, TGI is
required to deliver two fully and properly executed originals of this Guaranty to the City.
D. Capitalized Terms used herein and not otherwise defined shall have the respective
meanings given such terms in the Contract.
NOW THEREFORE, in consideration of the Contract, and for other good and valuable
considerations the receipt and sufficiency of which are hereby irrevocably acknowledged by the
Guarantor, the Guarantor agrees as follows:
1. THE GUARANTY.
(a) Upon satisfaction of all Conditions Precedent in the Contract and the
occurrence of the Premises Turnover Date in the Contract, Guarantor hereby guarantees
all of the obligations of the Company (or any assignee of Company) under the Contract
with regard to (i) the completion of the Premises Improvements or the return of the
Premises to the same or better condition as the Premises existed prior to the
Commencement Date ("Premises Construction Obligations") and full payment of all
costs and expenses of every kind whatsoever associated with such completion of the
Premises Construction Obligations including all loss, cost, damage, liability, claim or
expense the City may suffer by reason of mechanic's liens or similar claims or by reason
of the Company's or Guarantor's failure to complete the Premises Construction
Obligations ("Premises Project Costs"); (ii) all costs, expenses, damages, losses and
other amounts for which the City may become liable as a consequence of or in
connection with the Company's or Guarantor's completion of or failure to complete the
Premises Construction Obligations and/or, when so obligated, to cause the Premises to be
{32215 / 66600; 497504.7 }
1
Agreement No. 4924-1
are returned to the City to the same or better condition as the Premises existed as of the
Premises Turnover Date pursuant to the terms and conditions of the Contract, and (iii) if
the City exercises its right under this Guaranty to take over construction of the Premises
Improvements, to reimburse City for all costs and expenses incurred by City in taking
over construction of the Premises Improvements and completing construction of the
Premises Improvements.
(b) Notwithstanding any other provision in the Contract or this Guaranty,
recognizing that the Company, TGI, Centercal Guarantor and TG USA El Segundo all
have various contractual obligations that they have entered into by and between
themselves to which the City is not a party and that the City has limited rights or no rights
to enforce, in the event that (i) TGI does ensure that TG USA El Segundo enters into the
Sublease, (ii) TGI executes and delivers this Guaranty to the Lessor, and (iii) the
Company delivers to the Lessor the Due Diligence Acceptance Notice as provided for in
the Contract, then unless TGI within five (5) business days of issuance of the Notice of
Acceptance provides written notice to the Lessor that it has withdrawn this Guaranty,
Guarantor is deemed to have waived any rights it might have under the Contract or this
Guaranty, or in law or equity, to assert that the Guarantor's obligations under this
Guaranty have in any way been altered or diminished. Receipt of the Due Diligence
Acceptance Notice by Lessor shall be deemed notice to Lessor that TG USA El Segundo
and Company have entered into the Sublease.
(c) Guarantor covenants and agrees to cooperate with the Company and/or
CenterCal Guarantor to coordinate construction scheduling, access and all other matters
related to the performance by Guarantor of its Premises Construction Obligations and
payment of the Premises Project Costs and performance of its other obligations under this
Guaranty. Guarantor waives the right to claim any defense to performance of any of its
obligations under this Guaranty based on a claim that the Company has failed to perform
under the Contract or any other agreement, nor may Guarantor claim a failure to perform
by the Company under the Contract or any other agreement as a defense to a default by
Guarantor under this Guaranty. Guarantor waives the right to claim any defense to
performance of any of its obligations under this Guaranty based on a claim that the
Centercal Guarantor has failed to perform under that certain Construction Guarantee
Agreement from the Centercal Guarantor for the benefit of the City or any other
agreement nor may Guarantor claim a default by the Centercal Guarantor under its
Construction Guarantee Agreement in favor of the City or any other agreement as a
defense to a default by Guarantor under the Guaranty. Guarantor covenants and agrees
that no assignment of the Company's interest as Lessee under the Contract or any other
assignment or sublease permitted by the Contract shall release Guarantor from any of its
obligations hereunder. Guarantor covenants and agrees that no assignment of TG USA
El Segundo's interest as sublessee under the Sublease shall release Guarantor from any of
its obligations hereunder.
2. PREMISES IMPROVEMENTS BY GUARANTOR AND THE CITY'S OPTION
TO COMPLETE THE PROJECT.
{32215 / 66600; 497504.7 1
2
Agreement No. 4924-1
At the City's election as to the timing of making a demand (following the expiration of
any applicable notice and cure period), if the Premises Improvements have not been completed
within ten (10) months of the Premises Turnover Date (subject to force majeure as defined in
Section 30 of the Contract or delays caused by the City), or if there are material delays with
construction of the Premises Improvements such that the City has a good faith, reasonable belief
that the Premises Improvements will not be completed within such period except for delays
caused by force majeure as defined in Section 30 of the Contract or except for delays caused by
the City, then the City shall make written demand on Guarantor to so complete the same and to
honor all of the obligations set forth in Section 1 of this Guaranty. If the Guarantor, within ten
(10) days of receiving the following written demand by City:
"THIS NOTICE OF DEFAULT IS BEING SENT PURSUANT TO SECTION 3
OF THE GUARANTY, AND IF GUARANTOR FAILS TO CURE SUCH
DEFAULT WITHIN TEN (10) DAYS OF ITS RECEIPT OF THIS NOTICE,
OR IF GUARANTOR HAS NOT COMMENCED SUCH CURE WITHIN
SUCH TEN (10) DAY PERIOD AND IS DILIGENTLY PROSECUTING THE
SAME TO COMPLETION, THEN CITY MAY EXERCISE SELF HELP
RIGHTS UNDER SECTION 3 OF THIS GUARANTY"
fails diligently to commence and/or continue performance thereof to completion as required
under the Contract, the City in its sole and absolute discretion, at any time thereafter, shall have
the right to complete the Premises Improvements or return the Premises to the same or better
condition as such existed prior to the Premises Turnover Date, either before, during or after the
pursuing of any other remedy of the City against the Company and/or the Guarantor, and expend
such sums as the City in its sole and absolute discretion deems proper in order to complete the
Premises Improvements pursuant to the requirements of the Contract.
In such event, the Guarantor shall fully and promptly reimburse and repay the City for all
costs and expenses incurred by the City and such shall not relieve Guarantor from performing
any or all of its additional obligations set forth in Section 1 of this Guaranty. Any amounts
payable by the Guarantor shall be payable on demand, with such amounts bearing interest from
and after the date incurred by the City until paid as provided in Section 3 hereof.
3. INTEREST ON UNPERFORMED OBLIGATIONS.
The Guarantor agrees to pay to the City interest at the interest rate of 5% per annum on
the amounts advanced by the City pursuant to Section 2. Such interest shall be payable for the
period commencing with each such advance by the City.
4. REPRESENTATIONS AND WARRANTIES.
The Guarantor makes the following representations and warranties to the City to the best
of Guarantor's knowledge and the Guarantor acknowledges that the City intends to enter into the
Contract in reliance thereon:
(a) The Guarantor is not in default under any agreement to which it is a party,
the effect of which will materially impair performance by the Guarantor of its obligations
pursuant to and as contemplated by the terms of this Guaranty. Neither the execution and
{32215 / 66600; 497504.7 }
Agreement No. 4924-1
delivery of this Guaranty nor compliance with the terms and provisions hereof (i) will
violate any presently existing provision of law or any presently existing regulation, order,
writ, injunction or decree of any court or governmental department, commission, board,
bureau, agency or instrumentality applicable to Guarantor; or (ii) will conflict or will be
inconsistent with, or will result in any breach of, any of the terms, covenants, conditions
or provisions of, or constitute a default under (with an effect that will materially impair
performance by the Guarantor of its obligations pursuant to and as contemplated by the
terms of this Guaranty) any indenture, mortgage, deed of trust, instrument, document,
agreement or contract of any kind that creates, represents, evidences or provides for any
lien, charge or encumbrance upon any of the property or assets of the Guarantor, or any
other indenture, mortgage, deed of trust, instrument, document, agreement or contract of
any kind to which the Guarantor is a party or by which any of the property of the
Guarantor may be subject to, in the event of any such conflict, the required consent or
waiver of the other party or parties thereto has been validly granted, is in full force and
effect and is valid and sufficient therefor;
(b) There are no actions, suits or proceedings pending or threatened against
the Guarantor before any court or any governmental, administrative, regulatory,
adjudicatory or arbitrational body or agency of any kind that will (if adversely
determined) materially adversely affect performance by such Guarantor of its obligations
pursuant to and as contemplated by the terms and provisions of this Guaranty;
(c) TGI is a duly organized, validly existing corporation under the laws of the
State of Delaware and is in good standing in the States of Delaware and California, and
has requisite authority to execute, deliver and perform its obligations under this Guaranty
pursuant to the terms and provisions of this Guaranty and has executed and delivered this
Guaranty pursuant to proper authority duly granted;
(d) The Guarantor is deriving a material financial benefit from the entering
into of the Contract by the Company, and the City has given sufficient consideration to
the Guarantor by entering into the Contract; and
(e) Each obligation under this Guaranty is legal, valid, binding and
enforceable against the Guarantor in accordance with its terms, subject at all times to
matters of bankruptcy and insolvency and other laws affecting the enforcement of
creditors' rights.
5. COVENANTS.
The Guarantor agrees and covenants that:
(a) No payment or performance by the Guarantor under any provision of this
Guaranty shall entitle the Guarantor, by subrogation to the rights of the City or otherwise,
to any payment from or rights in any applicable bonds, title insurance certifications,
commitments or indemnities or other security held by or for the benefit of the City in
connection with the Premises Improvements, until all of the Premises Construction
Obligations have been discharged in full; provided nothing herein shall constitute a
{32215 / 66600; 497504.7 }
4
Agreement No. 4924-1
waiver of the right of subrogation of the Guarantor after discharge in full of such
obligations;
(b) The liability of the Guarantor shall in no way be affected, diminished or
released by any of the following: (i) any extension of time or forbearance that may be
granted by the City to the Company or to the Guarantor; (ii) any waiver by the City under
the Contract; (iii) any change or modification in the Contract (subject to the provisions of
(c) below); (iv) the acceptance by the City of additional security or any increase,
substitution or changes therein; (v) the release by the City of any security or any
withdrawal thereof or decrease therein; (vi) the failure or election by the City to pursue or
not to pursue any remedies it may have against the Guarantor or against the Company or
any of the general partners of the Company under the Contract; (vii) any failure by the
Company to provide Guarantor or any other parry written or other notice as may be
required under the Contract; or (viii) the exercise of any extension of time or other option
for performance or assignment of obligations specifically set forth in the Contract.
(c) The City may at any time enter into agreements with the Company, or its
successors or assigns, to amend and modify the Contract, but such amendments or
modifications shall not be binding on Guarantor without Guarantor's consent thereto if
such materially affect to Guarantor's detriment its obligations or liabilities under this
Guaranty;
(d) Nothing contained herein or otherwise shall prevent the City from
pursuing concurrently or successively all rights and remedies available to the City
pursuant to any document or agreement or in law or in equity and against any persons,
firms or entities whatsoever (and particularly, but not by way of limitation, the City may
exercise any other rights available to it under the Contract or any other agreement or
security instrument), and the exercise of any of its rights or the completion of any of its
remedies shall not constitute a discharge of the Guarantor's obligations hereunder, it
being the purpose and intent of the Guarantor that, subject to the terms and provisions of
this Guaranty, its obligations hereunder shall be absolute, independent and unconditional
under any and all circumstances whatsoever;
(e) The liability of the Guarantor hereunder or any remedy for the
enforcement thereof shall in no way be affected by (i) the release or discharge of the
Company, or any general partner of the Company, in any creditors', receivership,
bankruptcy or other proceedings, (ii) the impairment, limitation or modification of the
liabilities of the Company or any general partner of the Company under the Contract or
of any remedy for the enforcement thereof, or of the estate of the Company or any such
general partner in bankruptcy, resulting from the operation of any present or future
provision of the federal bankruptcy act or other statute or from the decision in any court,
(iii) the rejection or disaffirmance of the Contract in any such proceedings, (iv) cessation
from any cause whatsoever of the liability of the Company or any such general partner to
the City, or (v) any defense, current or future, of the Guarantor to any action, suit or
proceeding at law or otherwise, that may be instituted on this Guaranty other than one
based upon nonfulfillment by the City of a material obligation to be performed by the
City pursuant to this Guaranty or the Contract.
{32215 / 66600; 497504.7 }
5
Agreement No. 4924-1
6. WAIVERS.
The Guarantor hereby expressly irrevocably waives:
(a) Notice of acceptance of this Guaranty by the City, and any and all notice
and demands of every kind that may be required to be given by any statute, rule or law
except any specifically required by this Guaranty or the Lessor under the Contract;
(b) Any defense arising by reason of any incapacity, lack of authority, death
or disability of any other person or entity (except the City) or from the failure of the City
to file or enforce a claim against any person or entity in any administrative, bankruptcy or
other proceeding;
(c) Any obligation the City might otherwise have to disclose to the Guarantor
any facts the City now or hereafter may know or have reasonably available to it regarding
the Company or its financial condition, whether or not the City has a reasonable
opportunity to communicate such facts or has reason to believe that any such facts are
unknown to the Guarantor or materially increase the risk to the Guarantor beyond the risk
the Guarantor intended to assume hereunder. Guarantor shall be fully responsible for
keeping informed of the financial condition of the Company and of all other
circumstances bearing upon the risks of nonpayment or nonperformance of the Company
under the Contract;
(d) Any defense based on an election of remedies by the City, whether or not
such election may affect in any way the recourse, subrogation or other rights of the
Guarantor against the Company or any of its partners in connection with the Premises
Construction Obligations;
(e) All diligence in collection or protection of or realization upon or
enforcement of the Premises Construction Obligations, any other obligation hereunder, or
any security for or guaranty of any of the foregoing, and any and all formalities that
otherwise might be legally required to charge the Guarantor with liability; and
(f) Any lien, security interest or charge on the Golf Course Property, the
equipment and personal property located thereon, all rights therein and thereto, the
revenue and income to be realized therefrom, or on any proceeds or products of any
thereof, which the Guarantor may have or obtain as a result of the City's enforcement of
this Guaranty.
(g) With respect to those matters set forth in Sections 1(b) and (c),5, 6, 7
and 9 of this Guaranty, Guarantor waives any and all laws or regulations (including
without limitation California Civil Code Sections 2787 and 2855, and Code of Civil
Procedure Sections 580a, 580b, 580d and/or 726, regardless of whether such are
applicable or not to this Guaranty) that would (i) in any respect or manner diminish or
eliminate the obligations of the Guarantor hereunder regardless of whether the terms of
such laws or regulations have been specifically referenced herein or the substance of such
laws or regulations have been set forth herein or addressed by this Guaranty; or (ii)
{32215 / 66600; 497504.7 }
6
Agreement No. 4924-1
provide some procedural defense to Guarantor with regard to any action or proceeding
the City may institute to enforce its rights under this Guaranty.
7. EFFECT OF THE CITY'S DELAY OR ACTION.
No delay on the part of the City in the exercise of any right or remedy under this
Guaranty or the Contract shall operate as a waiver thereof, and no single or partial exercise by
the City of any right or remedy shall preclude other or further exercise thereof or the exercise of
any other right or remedy. No action by the City permitted hereunder shall in any way affect or
impair the rights of the City and the obligations of the Guarantor under this Guaranty, provided,
however, that the Guarantor shall be entitled to enforce, and the City shall be bound by, the
obligations of the City under the Contract so long as the Guarantor shall perform its obligations,
or cause its obligations to be performed, hereunder.
8. CONTINUING GUARANTY.
This Guaranty shall in all respects be a continuing, absolute, irrevocable and
unconditional guaranty, and shall remain in full force and effect and shall be binding upon the
heirs, personal representatives, successors and assigns of the Guarantor, and shall inure to the
benefit of the respective successors and assigns of the City. All references herein to the
Company, its general partners or the Guarantor shall be deemed to include the respective
successors and assigns of same, as the case may be. Any proposed assignment of the Guarantor's
obligations hereunder to a substitute guarantor shall be subject to the City's approval which may
be withheld in the City's sole and absolute discretion.
9. CERTAIN PERMITTED ACTIONS OF THE CITY.
The City may from time to time, in its sole discretion and without notice to the
Guarantor, take any of the following actions without in any way affecting the obligations of the
Guarantor: (a) obtain the primary or secondary obligation of any additional obligor or obligors
with respect to any of the Premises Construction Obligations; (b) enforce this Guaranty against
the Guarantor, whether or not the City shall have (1) proceeded against the Company or any of
the other guarantors or sureties or any other party primarily or secondarily obligated or (2)
resorted to or exhausted any other remedy or any other security or collateral; and (c) enforce any
other rights under the Contract.
10. TIME OF ESSENCE.
Time is of the essence of this Guaranty.
11. NO MODIFICATION WITHOUT WRITING.
This Guaranty may not be modified, amended, revised, revoked, terminated, changed or
varied in any way whatsoever except by the express terms of a writing signed by the parties
hereto. This Guaranty, and the Company's obligations set for the in Contract represent the entire
understanding between the City and the Guarantor and no other prior written or oral
understanding shall be of any force or effect.
{32215 / 66600; 497504.7 }
7
Agreement No. 4924-1
12. NOTICES.
All notices required or permitted pursuant to this Guaranty shall be in writing and shall
be deemed given when (a) personally delivered to an officer or other authorized representative of
the party to be notified or (b) after deposit in the United States mail as certified mail, postage
prepaid, return receipt requested or (c) sent by reputable overnight courier and addressed as
follows (or to such other address as a party may specify by notice given to the other party
pursuant to this provision):
If to the Guarantor:
If to the City:
TopGolf International, Inc.
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
Attention: Elizabeth Bonesio, Esq.
TopGolf USA El Segundo, LLC
Attn: Mr. Zach Shor
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
City of El Segundo
Attn: City Clerk
350 Main Street
City of El Segundo, CA 90245
Notwithstanding anything in this section to the contrary, any notice sent or mailed to the
last designated address of any person or party to which a notice may be or is required to be
delivered pursuant to the Guaranty, shall not be deemed ineffective if actual delivery cannot be
made due to a change of address of the person or party to which the notice is directed or if such
notice is rejected by such parry.
13. GOVERNING LAW.
This Guaranty shall be construed in accordance with and governed by the laws of the
State of California and any suit, action or other legal proceeding relating to this Guaranty may be
brought only in the Los Angeles Superior Court. The Guarantor irrevocably consents to the
service of process of the aforementioned court in any such action or proceeding by the mailing of
copies thereof by certified or registered mail, postage prepaid, return receipt requested to the
Guarantor at its address set forth in SECTION 12 hereof, as such address may be changed from
time to time in accordance with such SECTION 12. Nothing herein shall affect the right of the
City to serve process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other jurisdiction in which the Guarantor may be
subject to suit.
14. INDEPENDENT OBLIGATIONS.
{32215 / 66600; 497504.71
Agreement No. 4924-1
The obligations of the Guarantor hereunder are independent of the obligations of the
Company. In the event of any default hereunder, the City may institute a separate action against
the Guarantor with or without joining or instituting a separate action against the Company.
15. CUMULATIVE,
All rights and remedies of the City and all obligations of the Guarantor under this
Guaranty are cumulative. In addition, the City shall have all rights and remedies available to it at
law or equity for the enforcement of this Guaranty.
16. SEVERABILITY.
Wherever possible each provision of this Guaranty shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
17. LEGAL TENDER OF UNITED STATES.
All payments hereunder shall be made in coin or currency which at the time of payment is legal
tender in the United States of America for public and private debts.
18. NO MERGER OR ALTERATION
In the event the Guarantor acquire some real or personal property interest through the
Contract or otherwise with regard to the Premises, such shall not alter or impair the City's rights
or the Guarantor's obligations under this Guaranty.
IN WITNESS HEREOF, the Guarantor has duly executed this Guaranty as of date first
written above.
TopGolf International, Inc.,
a Delaware corporation
Name:
Its:
[Signatures continued on next page]
{32215 / 66600; 497504.7 1
9
Agreement No. 4924-1
City of El Segundo
Suzanne Fuentes, Mayor
Approved As to Form:
Mark D. Hensley, City Attorney
Attest:
Tracy Weaver, City Clerk
{32215 / 66600; 497504.7 }
10
Agreement No. 4924-1
CONSTRUCTION GUARANTEE AGREEMENT
THIS CONSTRUCTION GUARANTEE AGREEMENT (this "Guaranty") is executed
and delivered as of the --—, 201_, by CenterCal, LLC, a Delaware limited liability
company ("CenterCal" or "Guarantor"), whose address isl600 East Franklin Street, El Segundo,
CA 90245 for the benefit of the City of El Segundo (referred to herein as "City" or "Lessor").
A. Pursuant to that certain Due Diligence and Ground Lease Agreement entered into
on or about 2015 (the "Contract") by and between ES Centercal,
LLC, a Delaware limited liability company (referred to herein as the "Company" or "Lessee")
and the City, and subject to the terms and conditions set forth in the Contract, as may be
amended in writing from time to time, the Company has agreed (i) to complete, or cause to be
completed, certain improvements to the Golf Course and the Premises as described in the
Contract, or return the Premises to the same or better condition as it existed prior to the
Commencement Date and to (ii) lease the Premises, subject to the Conditions Precedent set forth
in the Contract, and operate a driving range and other facilities on the Premises and pay Rent to
City as well as perform other obligations under the Contract.
B. As a condition precedent to the City's agreeing to enter in the Contract, CenterCal
is required to deliver two fully and properly executed originals of this Guaranty to the City.
C. Capitalized Terms used herein and not otherwise defined shall have the respective
meanings given such terms in the Contract.
NOW THEREFORE, in consideration of the Contract, and for other good and valuable
considerations the receipt and sufficiency of which are hereby irrevocably acknowledged by the
Guarantor, the Guarantor agrees as follows:
THE GUARANTY.
(a) Upon satisfaction of all Conditions Precedent in the Contract and the
occurrence of the Premises Turnover Date in the Contract, Guarantor hereby guarantees
all of the obligations of the Company (or any assignee of Company) under the Contract
with regard to (i) the completion of the Golf Course Improvements or the return of the
Premises to the same or better condition as the Premises existed prior to the
Commencement Date ("Golf Course Construction Obligations") and full payment of all
costs and expenses of every kind whatsoever associated with such completion of the Golf
Course Construction Obligations including all loss, cost, damage, liability, claim or
expense the City may suffer by reason of mechanic's liens or similar claims or by reason
of the Company's or Guarantor's failure to complete the Golf Course Construction
Obligations ("Golf Course Project Costs"); (ii) all costs, expenses, damages, losses and
other amount for which the City may become liable as a consequence of or in connection
with the Company's or Guarantor's completion of or failure to complete the Golf Course
Construction Obligations and/or, when so obligated, to cause the Premises to be are
returned to the City to the same or better condition as the Premises existed as of the
Premises Turnover Date pursuant to the terms and conditions of the Contract; and (iii) if
{32215 / 66600; 497504.5 }
Agreement No. 4924-1
the City exercises its right under this Guaranty to take over construction of the Golf
Course Improvements, to reimburse City for all costs and expenses incurred by City in
taking over construction of the Golf Course Improvements and completing construction
of the Golf Course Improvements.
(b) Notwithstanding any other provision in the Contract or this Guaranty,
recognizing that the Company, TGI, and Centercal and Top Golf all have various
contractual obligations that they have entered into by and between themselves to which
the City is not a party and that the City has limited rights or no rights to enforce, in the
event that (i) TopGolf El Segundo does enter into the Sublease, (ii) executes and delivers
this Guaranty to the Lessor, and (iii) the Company delivers to the Lessor the Due
Diligence Acceptance Notice as provided for in the Contract, then unless Centercal
within five (5) business days of issuance of the Notice of Acceptance provides written
notice to the Lessor that it has withdrawn this Guaranty, Guarantor is deemed to have
waived any rights it might have under the Contract or this Guaranty, or in law or equity,
that the Guarantor's obligations under this Guaranty have in any way been altered or
diminished. Receipt of the Due Diligence Acceptance Notice by Lessor shall be deemed
notice to Lessor that Topgolf El Segundo and Company have entered into the Sublease.
(c) Guarantor covenants and agrees to cooperate with the Company and/or
CenterCal Guarantor to coordinate construction scheduling, access and all other matters
laLC a_ aL_ 1U�_11U L__ ___11ILNh___�.. / orist—__A____ 11LL'-_�S_r,_ ,]
re1QLGU LU L11G per1V1111Q111:e Uy 11UQiCl11LU1 0l 1LJ VVll I.VUl�e 1.U11JLiUl;L1U11 UUl1gUL1V11J ar1U
payment of the Golf Course Project Costs and performance of its other obligations under
this Guaranty. Guarantor waives the right to claim any defense to performance of any
of its obligations under this Guaranty based on a claim that the Company has failed to
perform under the Contract or any other agreement nor may Guarantor claim a failure to
perform by the Company under the Contract or any other agreement as a defense to a
default by Guarantor under this Guaranty. Guarantor waives the right to claim any
defense to performance of any of its obligations under this Guaranty based on a claim
that TGI has failed to perform under that certain Construction Guarantee Agreement
from TGI for the benefit of the City or any other agreement nor may Guarantor claim a
default by TGI under its Construction Guarantee Agreement in favor of the City or any
other agreement as a defense to a default by Guarantor under the Guaranty. Guarantor
covenants and agrees that no assignment of the Company's interest as Lessee under the
Contract or any other assignment or sublease permitted by the Contract shall release
Guarantor from any of its obligations hereunder. Guarantor covenants and agrees that no
assignment of its interest as sublessee under the Sublease shall release Guarantor from
any of its obligations hereunder.
2. GOLF COURSE IMPROVEMENTS BY GUARANTOR AND THE CITY'S
OPTION TO COMPLETE THE PROJECT.
At the City's election as to the timing of making a demand (following the expiration of
any applicable notice and cure period), if the Golf Course Improvements have not been
completed within ten (10) months of the Premises Turnover Date (subject to force majeure as
defined in Section 30 of the Contract or delays caused by the City), or if there are material delays
with construction of the Golf Course Improvements such that the City has a good faith,
{32215 / 66600; 497504.5 }
2
Agreement No. 4924-1
reasonable belief that the Golf Course Improvements will not be completed within such period
except for delays caused by force majeure as defined in Section 30 of the Contract or except for
delays caused by the City, then the City shall make written demand on Guarantor to so complete
the same and to honor all of the obligations set forth in Section 1 of this Guaranty. If the
Guarantor, within ten (10) days of receiving the following written demand by City:
"THIS NOTICE OF DEFAULT IS BEING SENT PURSUANT TO SECTION 3
OF THE GUARANTY, AND IF GUARANTOR FAILS TO CURE SUCH
DEFAULT WITHIN TEN (10) DAYS OF ITS RECEIPT OF THIS NOTICE,
OR IF GUARANTOR HAS NOT COMMENCED SUCH CURE WITHIN
SUCH TEN (10) DAY PERIOD AND IS DILIGENTLY PROSECUTING THE
SAME TO COMPLETION, THEN CITY MAY EXERCISE SELF HELP
RIGHTS UNDER SECTION 3 OF THIS GUARANTY."
fails diligently to commence and/or continue performance thereof to completion as required
under the Contract, the City in its sole and absolute discretion, at any time thereafter, shall have
the right to complete the Golf Course Improvements or return the Premises to the same or better
condition as such existed prior to the Premises Turnover Date, either before, during or after the
pursuing of any other remedy of the City against the Company and/or the Guarantor, and expend
such sums as the City in its sole and absolute discretion deems proper in order to complete the
Golf Course Improvements pursuant to the requirements of the Contract.
In such event, the Guarantor shall fully and promptly reimburse and repay the City for all
costs and expenses incurred by the City and such shall not relieve Guarantor from performing
any or all of its additional obligations set forth in Section 1 of this Guaranty, . Any amounts
payable by the Guarantor shall be payable on demand, with such amounts bearing interest from
and after the date incurred by the City until paid as provided in Section 3 hereof.
INTEREST ON UNPERFORMED OBLIGATIONS.
The Guarantor agrees to pay to the City interest at the interest rate of 5% per annum on
the amounts advanced by the City pursuant to Section 2. Such interest shall be payable for the
period commencing with each such advance by the City.
4. REPRESENTATIONS AND WARRANTIES.
The Guarantor makes the following representations and warranties to the City to the best
of Guarantor's knowledge and the Guarantor acknowledges that the City intends to enter into the
Contract in reliance thereon:
(a) The Guarantor is not in default under any agreement to which it is a party,
the effect of which will materially impair performance by the Guarantor of its obligations
pursuant to and as contemplated by the terms of this Guaranty. Neither the execution and
delivery of this Guaranty nor compliance with the terms and provisions hereof (i) will
violate any presently existing provision of law or any presently existing regulation, order,
writ, injunction or decree of any court or governmental department, commission, board,
bureau, agency or instrumentality applicable to Guarantor; or (ii) will conflict or will be
inconsistent with, or will result in any breach of, any of the terms, covenants, conditions
{32215 / 66600; 497504.5 1
Agreement No. 4924-1
or provisions of, or constitute a default under (with an effect that will materially impair
performance by the Guarantor of its obligations pursuant to and as contemplated by the
terms of this Guaranty) any indenture, mortgage, deed of trust, instrument, document,
agreement or contract of any kind that creates, represents, evidences or provides for any
lien, charge or encumbrance upon any of the property or assets of the Guarantor, or any
other indenture, mortgage, deed of trust, instrument, document, agreement or contract of
any kind to which the Guarantor is a party or by which any of the property of the
Guarantor may be subject to, in the event of any such conflict, the required consent or
waiver of the other party or parties thereto has been validly granted, is in full force and
effect and is valid and sufficient therefor;
(b) There are no actions, suits or proceedings pending or threatened against
the Guarantor before any court or any governmental, administrative, regulatory,
adjudicatory or arbitrational body or agency of any kind that will (if adversely
determined) materially adversely affect performance by such Guarantor of its obligations
pursuant to and as contemplated by the terms and provisions of this Guaranty;
(c) CenterCal is a duly organized, validly existing limited liability company
under the laws of the State of Delaware and is in good standing in the State of California,
and has requisite authority to execute, deliver and perform its obligations under this
Guaranty pursuant to the terms and provisions of this Guaranty and has executed and
d-11Jcred tills Guaranty pursiiaiit tv FIVFel auLlIvrily duly granted,,
(d) The Guarantor is deriving a material financial benefit from the entering
into of the Contract by the Company, and the City has given sufficient consideration to
the Guarantor by entering into the Contract; and
(e) Each obligation under this Guaranty is legal, valid, binding and
enforceable against the Guarantor in accordance with its terms, subject at all times to
matters of bankruptcy and insolvency and other laws affecting the enforcement of
creditors' rights.
5. COVENANTS,
The Guarantor agrees and covenants that:
(a) No payment or performance by the Guarantor under any provision of this
Guaranty shall entitle the Guarantor, by subrogation to the rights of the City or otherwise,
to any payment from or rights in any applicable bonds, title insurance certifications,
commitments or indemnities or other security held by or for the benefit of the City in
connection with the Golf Course Improvements, until all of the Golf Course Construction
Obligations have been discharged in full; provided nothing herein shall constitute a
waiver of the right of subrogation of the Guarantor after discharge in full of such
obligations;
(b) The liability of the Guarantor shall in no way be affected, diminished or
released by any of the following: (i) any extension of time or forbearance that may be
granted by the City to the Company or to the Guarantor; (ii) any waiver by the City under
{32215 / 66600; 497504.5 1
4
Agreement No. 4924-1
the Contract; (iii) any change or modification in the Contract (subject to the provisions of
(c) below); (iv) the acceptance by the City of additional security or any increase,
substitution or changes therein; (v) the release by the City of any security or any
withdrawal thereof or decrease therein; (vi) the failure or election by the City to pursue or
not to pursue any remedies it may have against the Guarantor or against the Company or
any of the general partners of the Company under the Contract; (vii) any failure by the
Company to provide Guarantor or any other party written or other notice as may be
required under the Contract; or (viii) the exercise of any extension of time or other option
for performance or assignment of obligations specifically set forth in the Contract.
(c) The City may at any time enter into agreements with the Company, or its
successor or assigns, to amend and modify the Contract, but such amendments or
modifications shall not be binding on Guarantor without Guarantor's consent thereto if
such materially affect to Guarantor's detriment its obligations or liabilities under this
Guaranty;
(d) Nothing contained herein or otherwise shall prevent the City from
pursuing concurrently or successively all rights and remedies available to the City
pursuant to any document or agreement or in law or in equity and against any persons,
firms or entities whatsoever (and particularly, but not by way of limitation, the City may
exercise any other rights available to it under the Contract or any other agreement or
security instrument), and the exercise of any of its rights or the completion of any of its
remedies shall not constitute a discharge of the Guarantor's obligations hereunder, it
being the purpose and intent of the Guarantor that, subject to the terms and provisions of
this Guaranty, its obligations hereunder shall be absolute, independent and unconditional
under any and all circumstances whatsoever;
(e) The liability of the Guarantor hereunder or any remedy for the
enforcement thereof shall in no way be affected by (i) the release or discharge of the
Company, or any general partner of the Company, in any creditors', receivership,
bankruptcy or other proceedings, (ii) the impairment, limitation or modification of the
liabilities of the Company or any general partner of the Company under the Contract or
of any remedy for the enforcement thereof, or of the estate of the Company or any such
general partner in bankruptcy, resulting from the operation of any present or future
provision of the federal bankruptcy act or other statute or from the decision in any court,
(iii) the rejection or disaffirmance of the Contract in any such proceedings, (iv) cessation
from any cause whatsoever of the liability of the Company or any such general partner to
the City, or (v) any defense, current or future, of the Guarantor to any action, suit or
proceeding at law or otherwise, that may be instituted on this Guaranty other than one
based upon nonfulfillment by the City of a material obligation to be performed by the
City pursuant to this Guaranty or the Contract.
6. WAIVERS.
The Guarantor hereby expressly irrevocably waives:
{32215 / 66600; 497504.5 }
5
Agreement No. 4924-1
(a) Notice of acceptance of this Guaranty by the City, and any and all notice
and demands of every kind that may be required to be given by any statute, rule or law
except any specifically required by this Guaranty or the Lessor under the Contract;
(b) Any defense arising by reason of any incapacity, lack of authority, death
or disability of any other person or entity (except the City) or from the failure of the City
to file or enforce a claim against any person or entity in any administrative, bankruptcy or
other proceeding;
(c) Any obligation the City might otherwise have to disclose to the Guarantor
any facts the City now or hereafter may know or have reasonably available to it regarding
the Company or its financial condition, whether or not the City has a reasonable
opportunity to communicate such facts or has reason to believe that any such facts are
unknown to the Guarantor or materially increase the risk to the Guarantor beyond the risk
the Guarantor intended to assume hereunder. Guarantor shall be fully responsible for
keeping informed of the financial condition of the Company and of all other
circumstances bearing upon the risks of nonpayment or nonperformance of the Company
under the Contract;
(d) Any defense based on an election of remedies by the City, whether or not
such election may affect in any way the recourse, subrogation or other rights of the
Comrnntnr aaainct the C'mmnnnv nr anv of;tC nnrtnarc in onnnpof;nn -with flip C',nlf CniirQp
Construction Obligations;
(e) All diligence in collection or protection of or realization upon or
enforcement of the Golf Course Construction Obligations, any other obligation
hereunder, or any security for or guaranty of any of the foregoing, and any and all
formalities that otherwise might be legally required to charge the Guarantor with liability;
and
(f) Any lien, security interest or charge on the Golf Course Property, the
equipment and personal property located thereon, all rights therein and thereto, the
revenue and income to be realized therefrom, or on any proceeds or products of any
thereof, which the Guarantor may have or obtain as a result of the City's enforcement of
this Guaranty.
(g) With respect to those matters set forth in Sections 1(b) and (c),5, 6, 7
and 9 of this Guaranty, Guarantor waives any and all laws or regulations (including
without limitation California Civil Code Sections 2787 and 2855, and Code of Civil
Procedure Sections 580a, 580b, 580d and/or 726, regardless of whether such are
applicable or not to this Guaranty) that would (i) in any respect or manner diminish or
eliminate the obligations of the Guarantor hereunder regardless of whether the terms of
such laws or regulations have been specifically referenced herein or the substance of such
laws or regulations have been set forth herein or addressed by this Guaranty; or (ii)
provide some procedural defense to Guarantor with regard to any action or proceeding
the City may institute to enforce its rights under this Guaranty.
{32215 / 66600; 497504.5 1
6
Agreement No. 4924-1
7. EFFECT OF THE CITY'S DELAY OR ACTION.
No delay on the part of the City in the exercise of any right or remedy under this
Guaranty or the Contract shall operate as a waiver thereof, and no single or partial exercise by
the City of any right or remedy shall preclude other or further exercise thereof or the exercise of
any other right or remedy. No action by the City permitted hereunder shall in any way affect or
impair the rights of the City and the obligations of the Guarantor under this Guaranty, provided,
however, that the Guarantor shall be entitled to enforce, and the City shall be bound by, the
obligations of the City under the Contract so long as the Guarantor shall perform its obligations,
or cause its obligations to be performed, hereunder.
8. CONTINUING GUARANTY.
This Guaranty shall in all respects be a continuing, absolute, irrevocable and
unconditional guaranty, and shall remain in full force and effect and shall be binding upon the
heirs, personal representatives, successors and assigns of the Guarantor, and shall inure to the
benefit of the respective successors and assigns of the City. All references herein to the
Company, its general partners or the Guarantor shall be deemed to include the respective
successors and assigns of same, as the case may be. Any proposed assignment of the Guarantor's
obligations hereunder to a substitute guarantor shall be subject to the City's approval which may
be withheld in the City's sole and absolute discretion.
9. CERTAIN PERMITTED ACTIONS OF THE CITY,.
The City may from time to time, in its sole discretion and without notice to the
Guarantor, take any of the following actions without in any way affecting the obligations of the
Guarantor: (a) obtain the primary or secondary obligation of any additional obligor or obligors
with respect to any of the Golf Course Construction Obligations; (b) enforce this Guaranty
against the Guarantor, whether or not the City shall have (1) proceeded against the Company or
any of the other guarantors or sureties or any other party primarily or secondarily obligated or (2)
resorted to or exhausted any other remedy or any other security or collateral; and (c) enforce any
other rights under the Contract.
10. TIME OF ESSENCE.
Time is of the essence of this Guaranty.
11. NO MODIFICATION WITHOUT WRITING.
This Guaranty may not be modified, amended, revised, revoked, terminated, changed or
varied in any way whatsoever except by the express terms of a writing signed by the parties
hereto. This Guaranty, and the Company's obligations set for the in Contract represent the entire
understanding between the City and the Guarantor and no other prior written or oral
understanding shall be of any force or effect.
12. NOTICES..
{32215 / 66600; 497504.5 }
7
Agreement No. 4924-1
All notices required or permitted pursuant to this Guaranty shall be in writing and shall
be deemed given when (a) personally delivered to an officer or other authorized representative of
the party to be notified or (b) after deposit in the United States mail as certified mail, postage
prepaid, return receipt requested or (c) sent by reputable overnight courier and addressed as
follows:
(or to such other address as a party may specify by notice given to the other party pursuant to this
provision):
If to the Guarantor:
CenterCal, LLC,
If to the City:
1600 East Franklin Street
El Segundo, CA 90245
Attention.: Fred W. Bruning
ES CenterCal, LLC,
1600 East Franklin Street
El Segundo, CA 90245
Attention.: Jean Paul Wardy
Griffin Fletcher & Herndon_ T.T.P
6857 Amber Lane
Carlsbad, CA 92009
Attention.: Edward Krasnove, Esq.
City of El Segundo
Attn: City Clerk
350 Main Street
City of El Segundo, CA 90245
Notwithstanding anything in this section to the contrary, any notice sent or mailed to the
last designated address of any person or party to which a notice may be or is required to be
delivered pursuant to the Guaranty, shall not be deemed ineffective if actual delivery cannot be
made due to a change of address of the person or party to which the notice is directed or if such
notice is rejected by such party.
13. GOVERNING LAW.
This Guaranty shall be construed in accordance with and governed by the laws of the
State of California and any suit, action or other legal proceeding relating to this Guaranty may be
brought only in the Los Angeles Superior Court. The Guarantor irrevocably consents to the
service of process of the aforementioned court in any such action or proceeding by the mailing of
copies thereof by certified or registered mail, postage prepaid, return receipt requested to the
Guarantor at its address set forth in SECTION 12 hereof, as such address may be changed from
(32215 / 66600; 497504.5 )
Agreement No. 4924-1
time to time in accordance with such SECTION 12. Nothing herein shall affect the right of the
City to serve process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other jurisdiction in which the Guarantor may be
subject to suit.
14. INDEPENDENT OBLIGATIONS.
The obligations of the Guarantor hereunder are independent of the obligations of the
Company. In the event of any default hereunder, the City may institute a separate action against
the Guarantor with or without joining or instituting a separate action against the Company.
15. CUMULATIVE.
All rights and remedies of the City and all obligations of the Guarantor under this
Guaranty are cumulative. In addition, the City shall have all rights and remedies available to it at
law or equity for the enforcement of this Guaranty. If there are provisions of the Contract that
expressly apply to Guarantor that are not contained in this Guaranty, Guarantor covenants and
agrees to honor such provisions as part of this Guaranty.
16 SEVERABILITY.
Wherever possible each provision of this Guaranty shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
16. LEGAL TENDER OF UNITED STATES.
All payments hereunder shall be made in coin or currency which at the time of payment
is legal tender in the United States of America for public and private debts.
17. NO MERGER OR ALTERATION
In the event the Guarantor acquire some real or personal property interest through the
Contract or otherwise with regard to the Premises, such shall not alter or impair the City's rights
or the Guarantor's obligations under this Guaranty.
IN WITNESS HEREOF, the Guarantor has duly executed this Guaranty as of date first
written above.
CENTERCAL,LLC,
132215 / 66600; 497504.5 }
a Delaware limited liability company
By: CENTERCAL ASSOCIATES, LLC,
a Delaware limited liability company
9
Agreement No. 4924-1
By
Print ame _
Print ite: Its Manager
City of El Segundo
Suzanne Fuentes, Mayor
Approved As to Form:
Mark D. Hensley, City Attorney
Attest:
Tracy Weaver, City Clerk
{32215 / 66600; 497504.5 }
10
Agreement No. 4924-1
OPERATING PERIOD GUARANTEE AGREEMENT
THIS OPERATING PERIOD GUARANTEE AGREEMENT (this "Guaranty") is
executed and delivered as of the day of __"201_, by
— ("Guarantor"), a wholly owned subsidiary of TopGolf
International W Inc.,mmmmmmmmma ..
Delaware corporation, whose address is 8750 N. Central Expressway, Suite
1200, Dallas, Texas 75231 for the benefit of the City of El Segundo (referred to herein as "City"
or "Lessor").
A. Pursuant to that certain Due Diligence and Ground Lease Agreement entered into
on or about ........
.........._.�.�_
2015 (the "Contract") by and between ES Centercal,
LLC, a Delaware limited liability company (referred to herein as the "Company" or "Lessee")
and the City, and subject to the terms and conditions set forth in the Contract, as may be
amended in writing from time to time, the Company has agreed to lease the Premises, subject to
the Conditions Precedent set forth in the Contract, and operate a driving range and other facilities
on the Premises and pay Rent to City as well as perform other obligations under the Contract
during the Operating Period.
B. TopGolf USA El Segundo, LLC ("TG El Segundo") is an affiliate of Guarantor
and is contemplated as being a sublessee of the Company and it is one of the Conditions
Precedent under the Contract that TG El Segundo become the sublessee under a Ground
Sublease with Company covering the Premises (the "Sublease").
C. As a condition precedent to the City's agreeing to enter into the Contract,
Guarantor is required to deliver two fully and properly executed originals of this Guaranty to the
City.
D. Capitalized Terms used herein and not otherwise defined shall have the respective
meanings given such terms in the Contract.
NOW THEREFORE, in consideration of the Contract, and for other good and valuable
considerations the receipt and sufficiency of which are hereby irrevocably acknowledged by the
Guarantor, the Guarantor agrees as follows:
1. THE GUARANTY,
(a) Upon satisfaction of all Conditions Precedent in the Contract and the
occurrence of the Premises Turnover Date in the Contract, Guarantor hereby guarantees
all of the obligations of the Company (or any assignee of Company) under the Contract
with regard to the operation of the Premises by Topgolf or other permitted Operator
under the Contract and payment of Rent during the Operating Period as defined in the
Contract.
(b) Notwithstanding any other provision in the Contract or this Guaranty,
recognizing that the Company, Guarantor, Centercal Guarantor and TG El Segundo all
have various contractual obligations that they have entered into by and between
themselves to which the City is not a party and that the City has limited rights or no rights
to enforce, in the event that (i) Guarantor does ensure—that TG El Segundo enters -into the
(32215 / 66600; 497504.7 }
Agreement No. 4924-1
Sublease, (ii) Guarantor executes and delivers this Guaranty to the Lessor, and (iii) the
Company delivers to the Lessor the Due Diligence Acceptance Notice as provided for in
the Contract, then unless Guarantor within five (5) business days of issuance of the
Notice of Acceptance provides written notice to the Lessor that it has withdrawn this
Guaranty, Guarantor is deemed to have waived any rights it might have under the
Contract or this Guaranty, or in law or equity, to assert that the Guarantor's obligations
under this Guaranty have in any way been altered or diminished. Receipt of the Due
Diligence Acceptance Notice by Lessor shall be deemed notice to Lessor that TG El
Segundo and Company have entered into the Sublease.
(c) Guarantor waives the right to claim any defense to performance of any of
its obligations under this Guaranty based on a claim that the Company has failed to
perform under the Contract or any other agreement, nor may Guarantor claim a failure to
perform by the Company under the Contract or any other agreement as a defense to a
default by Guarantor under this Guaranty. Guarantor waives the right to claim any
defense to performance of any of its obligations under this Guaranty based on a claim
that the Centercal Guarantor has failed to perform under that certain Construction
Guarantee Agreement from the Centercal Guarantor for the benefit of the City or any
other agreement nor may Guarantor claim a default by the Centercal Guarantor under its
Construction Guarantee Agreement in favor of the City or any other agreement as a
defense to a default by Guarantor under the Guaranty. Guarantor covenants and agrees
that no assignment of the Company's interest as Lessee under the Contract or any other
assignment or sublease permitted by the Contract shall release Guarantor from any of its
obligations hereunder. Guarantor covenants and agrees that no assignment of TG USA
El Segundo's interest as sublessee under the Sublease shall release Guarantor from any of
its obligations hereunder.
2. REPRESENTATIONS AND WARRANTIES.
The Guarantor makes the following representations and warranties to the City to the best
of Guarantor's knowledge and the Guarantor acknowledges that the City intends to enter into the
Contract in reliance thereon:
(a) The Guarantor is not in default under any agreement to which it is a party,
the effect of which will materially impair performance by the Guarantor of its obligations
pursuant to and as contemplated by the terms of this Guaranty. Neither the execution and
delivery of this Guaranty nor compliance with the terms and provisions hereof (i) will
violate any presently existing provision of law or any presently existing regulation, order,
writ, injunction or decree of any court or governmental department, commission, board,
bureau, agency or instrumentality applicable to Guarantor; or (ii) will conflict or will be
inconsistent with, or will result in any breach of, any of the terms, covenants, conditions
or provisions of, or constitute a default under (with an effect that will materially impair
performance by the Guarantor of its obligations pursuant to and as contemplated by the
terms of this Guaranty) any indenture, mortgage, deed of trust, instrument, document,
agreement or contract of any kind that creates, represents, evidences or provides for any
lien, charge or encumbrance upon any of the property or assets of the Guarantor, or any
other indenture, mortgage, deed of trust, instrument, document, agreement or contract of
{32215 / 66600; 497504.7 1
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Agreement No. 4924-1
any kind to which the Guarantor is a party or by which any of the property of the
Guarantor may be subject to, in the event of any such conflict, the required consent or
waiver of the other party or parties thereto has been validly granted, is in full force and
effect and is valid and sufficient therefor;
(b) There are no actions, suits or proceedings pending or threatened against
the Guarantor before any court or any governmental, administrative, regulatory,
adjudicatory or arbitrational body or agency of any kind that will (if adversely
determined) materially adversely affect performance by such Guarantor of its obligations
pursuant to and as contemplated by the terms and provisions of this Guaranty;
(c) Guarantor is a duly organized, validly existing corporation under the laws
of the State of Delaware and is in good standing in the States of Delaware and California,
and has requisite authority to execute, deliver and perform its obligations under this
Guaranty pursuant to the terms and provisions of this Guaranty and has executed and
delivered this Guaranty pursuant to proper authority duly granted;
(d) The Guarantor is deriving a material financial benefit from the entering
into of the Contract by the Company, and the City has given sufficient consideration to
the Guarantor by entering into the Contract; and
(e) Each obligation under this Guaranty is legal, valid, binding and
enforceable against the Guarantor in accordance with its terms, subject at all times to
matters of bankruptcy and insolvency and other laws affecting the enforcement of
creditors' rights.
3. COVENANTS.
The Guarantor agrees and covenants that:
(a) No payment or performance by the Guarantor under any provision of this
Guaranty shall entitle the Guarantor, by subrogation to the rights of the City or otherwise,
to any payment from or rights in any applicable bonds, title insurance certifications,
commitments or indemnities or other security held by or for the benefit of the City in
connection with the Premises Improvements, until all of the Premises Construction
Obligations have been discharged in full; provided nothing herein shall constitute a
waiver of the right of subrogation of the Guarantor after discharge in full of such
obligations;
(b) The liability of the Guarantor shall in no way be affected, diminished or
released by any of the following: (i) any extension of time or forbearance that may be
granted by the City to the Company or to the Guarantor; (ii) any waiver by the City under
the Contract; (iii) any change or modification in the Contract (subject to the provisions of
(c) below); (iv) the acceptance by the City of additional security or any increase,
substitution or changes therein; (v) the release by the City of any security or any
withdrawal thereof or decrease therein; (vi) the failure or election by the City to pursue or
not to pursue any remedies it may have against the Guarantor or against the Company or
any of the general partners of the Company under the Contract; (vii) any failure by the
{32215 / 66600; 497504.7 }
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Agreement No. 4924-1
Company to provide Guarantor or any other party written or other notice as may be
required under the Contract; or (viii) the exercise of any extension of time or other option
for performance or assignment of obligations specifically set forth in the Contract.
(c) The City may at any time enter into agreements with the Company, or its
successors or assigns, to amend and modify the Contract, but such amendments or
modifications shall not be binding on Guarantor without Guarantor's consent thereto if
such materially affect to Guarantor's detriment its obligations or liabilities under this
Guaranty;
(d) Nothing contained herein or otherwise shall prevent the City from
pursuing concurrently or successively all rights and remedies available to the City
pursuant to any document or agreement or in law or in equity and against any persons,
firms or entities whatsoever (and particularly, but not by way of limitation, the City may
exercise any other rights available to it under the Contract or any other agreement or
security instrument), and the exercise of any of its rights or the completion of any of its
remedies shall not constitute a discharge of the Guarantor's obligations hereunder, it
being the purpose and intent of the Guarantor that, subject to the terms and provisions of
this Guaranty, its obligations hereunder shall be absolute, independent and unconditional
under any and all circumstances whatsoever;
(e) The liability of the Guarantor hereunder or any remedy for the
enforcement thereof shall in no way be affected by (i) the release or discharge of the
Company, or any general partner of the Company, in any creditors', receivership,
bankruptcy or other proceedings, (ii) the impairment, limitation or modification of the
liabilities of the Company or any general partner of the Company under the Contract or
of any remedy for the enforcement thereof, or of the estate of the Company or any such
general partner in bankruptcy, resulting from the operation of any present or future
provision of the federal bankruptcy act or other statute or from the decision in any court,
(iii) the rejection or disaffirmance of the Contract in any such proceedings, (iv) cessation
from any cause whatsoever of the liability of the Company or any such general partner to
the City, or (v) any defense, current or future, of the Guarantor to any action, suit or
proceeding at law or otherwise, that may be instituted on this Guaranty other than one
based upon nonfulfillment by the City of a material obligation to be performed by the
City pursuant to this Guaranty or the Contract.
(f) Guarantor shall at all times maintain a net worth of not less than
$25,000,000.00. On or before May 1St of each calendar year, Guarantor shall deliver to
the Company a copy of Guarantor's unaudited financial statements for the previous
calendar year (herein called the "Financial Statements"), which such Financial
Statements shall be certified as true and correct by Guarantor's CFO or Controller. The
Company agrees to give the City written notice of the receipt of the Financial Statements
within five (5) business days after receiving them (the "Company Notice"), and the City
shall have ten (10) business days after receipt of the Company Notice to send one or more
representatives to review the Financial Statements in the corporate office of the
Company. In no event shall the City or the Company copy or duplicate the Financial
Statements or remove the Financial Statements from the corporate office of Company and
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Agreement No. 4924-1
in no event shall the Financial Statements become part of the City's public record.
Except as required by law, City agrees not to divulge to any person or persons, firm or
corporation, any information contained in the Financial Statements (the "Financial
Information" except to the extent necessary, to City's attorneys, accountants (and other
professional advisors). If the City receives a request for the Financial Information it shall
immediately notify Guarantor of such request and if the City determines the information
requested is a matter of public record then the City shall immediately notify Guarantor in
writing of such determination and deliver to Guarantor copies of all correspondence
received by City relating to such request. If Guarantor provides written notification to
the City within five (5) business days that it disagrees with the City's determination, then
the City shall not release the Financial Information and in the event there is litigation
filed against the City for not releasing the Financial Information then the City shall
immediately notify Guarantor in writing of such litigation, and deliver to Guarantor
copies of all pleadings, and the Guarantor shall be responsible for paying all of the City's
reasonable legal fees and costs as well as monetary award, including legal fees and costs,
that a court of competent of jurisdiction awards to the plaintiff or petitioner, provided that
any counsel selected by the City must be acceptable to Guarantor and be independent
counsel free of any conflict of interest. In the alternative, Guarantor shall have the right
to retain its own counsel and upon written notice to the City, take over the litigation,
provided that any counsel selected by Guarantor must be acceptable to the City and be
independent counsel free of any conflict of interest. In the event of any litigation with
respect to this matter each party shall reasonably cooperate with the other party, without
cost, expense or liability (other than de minimis costs) with respect to any such request
for information and/or litigation. Within three (3) days following the earlier of (i) the
expiration of the 10 -business day period and (ii) review of the Financial Statements by
the City, the Company shall return the Financial Statements to Guarantor.
4. WAIVERS,
The Guarantor hereby expressly irrevocably waives:
(a) Notice of acceptance of this Guaranty by the City, and any and all notice
and demands of every kind that may be required to be given by any statute, rule or law
except any specifically required by this Guaranty or the Lessor under the Contract;
(b) Any defense arising by reason of any incapacity, lack of authority, death
or disability of any other person or entity (except the City) or from the failure of the City
to file or enforce a claim against any person or entity in any administrative, bankruptcy or
other proceeding;
(c) Any obligation the City might otherwise have to disclose to the Guarantor
any facts the City now or hereafter may know or have reasonably available to it regarding
the Company or its financial condition, whether or not the City has a reasonable
opportunity to communicate such facts or has reason to believe that any such facts are
unknown to the Guarantor or materially increase the risk to the Guarantor beyond the risk
the Guarantor intended to assume hereunder. Guarantor shall be fully responsible for
keeping informed of the financial condition of the Company and of all other
{32215 / 66600; 497504.7 1
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Agreement No. 4924-1
circumstances bearing upon the risks of nonpayment or nonperformance of the Company
under the Contract;
(d) Any defense based on an election of remedies by the City, whether or not
such election may affect in any way the recourse, subrogation or other rights of the
Guarantor against the Company or any of its partners in connection with the Premises
Construction Obligations;
(e) All diligence in collection or protection of or realization upon or
enforcement of the Premises Construction Obligations, any other obligation hereunder, or
any security for or guaranty of any of the foregoing, and any and all formalities that
otherwise might be legally required to charge the Guarantor with liability; and
(f) Any lien, security interest or charge on the Golf Course Property, the
equipment and personal property located thereon, all rights therein and thereto, the
revenue and income to be realized therefrom, or on any proceeds or products of any
thereof, which the Guarantor may have or obtain as a result of the City's enforcement of
this Guaranty.
(g) With respect to those matters set forth in Sections 1(b) and (c),3, 4, 5
and 7 of this Guaranty, Guarantor waives any and all laws or regulations (including
without limitation California Civil Code Sections 2787 and 2855, and Code of Civil
Procedure Sections 580a, 580b, 580d and/or 726, regardless of whether such are
applicable or not to this Guaranty) that would (i) in any respect or manner diminish or
eliminate the obligations of the Guarantor hereunder regardless of whether the terms of
such laws or regulations have been specifically referenced herein or the substance of such
laws or regulations have been set forth herein or addressed by this Guaranty; or (ii)
provide some procedural defense to Guarantor with regard to any action or proceeding
the City may institute to enforce its rights under this Guaranty.
5. EFFECT OF THE CITY'S DELAY OR ACTION.
No delay on the part of the City in the exercise of any right or remedy under this
Guaranty or the Contract shall operate as a waiver thereof, and no single or partial exercise by
the City of any right or remedy shall preclude other or further exercise thereof or the exercise of
any other right or remedy. No action by the City permitted hereunder shall in any way affect or
impair the rights of the City and the obligations of the Guarantor under this Guaranty, provided,
however, that the Guarantor shall be entitled to enforce, and the City shall be bound by, the
obligations of the City under the Contract so long as the Guarantor shall perform its obligations,
or cause its obligations to be performed, hereunder.
6. CONTINUING GUARANTY.
This Guaranty shall in all respects be a continuing, absolute, irrevocable and
unconditional guaranty, and shall remain in full force and effect and shall be binding upon the
heirs, personal representatives, successors and assigns of the Guarantor, and shall inure to the
benefit of the respective successors and assigns of the City. All references herein to the
Company, its general partners or the Guarantor shall be deemed to include the respective
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Agreement No. 4924-1
successors and assigns of same, as the case may be. Any proposed assignment of the Guarantor's
obligations hereunder to a substitute guarantor shall be subject to the City's approval which may
be withheld in the City's sole and absolute discretion.
7. CERTAIN PERMITTED ACTIONS OF THE CITY.
The City may from time to time, in its sole discretion and without notice to the
Guarantor, take any of the following actions without in any way affecting the obligations of the
Guarantor: (a) obtain the primary or secondary obligation of any additional obligor or obligors
with respect to any of the Premises Construction Obligations; (b) enforce this Guaranty against
the Guarantor, whether or not the City shall have (1) proceeded against the Company or any of
the other guarantors or sureties or any other party primarily or secondarily obligated or (2)
resorted to or exhausted any other remedy or any other security or collateral; and (c) enforce any
other rights under the Contract.
8. TIME OF ESSENCE.
Time is of the essence of this Guaranty.
9. NO MODIFICATION WITHOUT WRITING.
This Guaranty may not be modified, amended, revised, revoked, terminated, changed or
varied in any way whatsoever except by the express terms of a writing signed by the parties
hereto. This Guaranty, and the Company's obligations set for the in Contract represent the entire
understanding between the City and the Guarantor and no other prior written or oral
understanding shall be of any force or effect.
10. NOTICES.
All notices required or permitted pursuant to this Guaranty shall be in writing and shall
be deemed given when (a) personally delivered to an officer or other authorized representative of
the party to be notified or (b) after deposit in the United States mail as certified mail, postage
prepaid, return receipt requested or (c) sent by reputable overnight courier and addressed as
follows (or to such other address as a party may specify by notice given to the other party
pursuant to this provision):
If to the Guarantor:
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
Attention: Elizabeth Bonesio, Esq.
TopGolf USA El Segundo, LLC
Attn: Mr. Zach Shor
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
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7
If to the City:
City of El Segundo
Attn: City Clerk
350 Main Street
City of El Segundo, CA 90245
If to the Company:
Agreement No. 4924-1
Notwithstanding anything in this section to the contrary, any notice sent or mailed to the
last designated address of any person or party to which a notice may be or is required to be
delivered pursuant to the Guaranty, shall not be deemed ineffective if actual delivery cannot be
made due to a change of address of the person or party to which the notice is directed or if such
notice is rejected by such party.
11. GOVERNING LAW.
This Guaranty shall be construed in accordance with and governed by the laws of the
State of California and any suit, action or other legal proceeding relating to this Guaranty may be
brought only in the Los Angeles Superior Court. The Guarantor irrevocably consents to the
service of process of the aforementioned court in any such action or proceeding by the mailing of
copies thereof by certified or registered mail, postage prepaid, return receipt requested to the
Guarantor at its address set forth in SECTION 10 hereof, as such address may be changed from
time to time in accordance with such SECTION 10. Nothing herein shall affect the right of the
City to serve process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other jurisdiction in which the Guarantor may be
subject to suit.
12. INDEPENDENT OBLIGATIONS.
The obligations of the Guarantor hereunder are independent of the obligations of the
Company. In the event of any default hereunder, the City may institute a separate action against
the Guarantor with or without joining or instituting a separate action against the Company.
13. CUMULATIVE.
All rights and remedies of the City and all obligations of the Guarantor under this
Guaranty are cumulative. In addition, the City shall have all rights and remedies available to it at
law or equity for the enforcement of this Guaranty.
14. SEVERABILITY.
Wherever possible each provision of this Guaranty shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
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Agreement No. 4924-1
15. LEGAL TENDER OF UNITED STATES.
All payments hereunder shall be made in coin or currency which at the time of payment is legal
tender in the United States of America for public and private debts.
16. NO MERGER OR ALTERATION
In the event the Guarantor acquire some real or personal property interest through the
Contract or otherwise with regard to the Premises, such shall not alter or impair the City's rights
or the Guarantor's obligations under this Guaranty.
[Signatures on following page]
IN WITNESS HEREOF, the Guarantor has duly executed this Guaranty as of date first
written above.
GUARANTOR:
a
By:.... _
Name:
Its:
COMPANY:
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Agreement No. 4924-1
CITY:
City of El Segundo
Suzanne Fuentes, Mayor
Approved As to Form:
Mark D. Hensley, City Attorney
Attest:
Tracy Weaver, City Clerk
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