Loading...
p-501 (2)►1iIII I III III 111111 L E A D S H E E T Fi 01-2161150 hf.s�U[.E�f•;E.`! I! Li IN tJ(f ICIAL P.ECOR ®S (igrrt�I�i f:" S OFFICE LOS ANGELE7COUNTY CFALIFORNI 8.41 Aid NOV 13 2-001 SPACE ABOVE THIS LINE FOR RECORDERS USE TITLE( S) FEE 6 EE C/L 1.. 1 31 CODE D.A. FEE UdLl 20 .x(3 20. CODE 19 CODE 9 THIS FORM IS NOT TO BE DUPLICATED e� D.T.T. RECORDING REQUESTED BY: CITY OF SANTA MONICA WHEN RECORDED MAIL TO CITY OF SANTA MONICA 1685 Main Street Santa Monica, CA 90401 Attention: City Attorney CITY OF SANTA MONICA OFFICIAL BUSINESS [Document Entitled to Free Recordation Pursuant to Government Code Section 6103] No Tax Due P! n , : 341 —2164050 e141. ESTOPPEL AND ATTORNMENT AGREEMENT This Estoppel and Attomment Agreement ("Agreement "), dated as of 2001, is made by the CITY OF SANTA MONICA, a municipal corporation organized der the laws of the State of California ( "City"), and BY THE BLUE SEA, a DELAWARE limited liability company ( "Borrower "), in favor of SECORE FINANCIAL CORPORATION, a Pennsylvania corporation ( "SECORE "). This Agreement is made with reference to the following facts: A. City and Sam Stein ( "Stein ") previously entered into that certain License Agreement (the "License Agreement ") dated August 23, 1988. The License Agreement was recorded on September 28, 1988 in the Official Records of the Los Angeles County, California (the "Official Records ") as Instrument No. 88- 1563010. Pursuant to the License Agreement, City granted to Stein a license (such license, together with all other rights and interests of Borrower under the License Agreement shall be collectively referred to herein as the "License ") for the exclusive use and occupancy of the property described in Exhibits "B ", "C" and "D ", attached to the License Agreement, which exhibits are incorporated herein by this reference (collectively, the "Licensed Property ") for hotel facilities. The License was granted to Stein in connection with Stein's ownership of certainreal property located in the City of Santa Monica, County ofLos Angeles, State of California, more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference ("the Proj ect Site"). The Licensed Property is also described in the License Agreement attached hereto as Exhibit "B" and incorporated herein by reference. As used herein, the term "Property" shall mean, collectively, the Licensed Property and the Project Site. B. Borrower is the current owner of the Project Site, and has succeeded to Stein's interests in the Licensed Property under the License. Borrower has applied to Secore for a loan (the 01 2:64050 "Loan ") in the original principal amount of Sixty Five Million Dollars ($65,000,000), to refinance the Property and for other purposes, as more particularly set forth in that certain loan agreement dated April 5, 2001, by and between Borrower and Secore (the "Loan Agreement"). The Loan is evidenced by a Promissory Note (the "Note) executed by Borrower in favor of Secore in the original principal amount of Sixty Five Million Dollars ($65,000,000), and by certain other "loan documents" described in the Loan Agreement (collectively with the Loan Agreement and Note, the "Loan Documents "). C. The Loan is secured by, among other things, a first position lien on the Project Site, and an assignment of Borrower's rights and interests in and to the Licensed Property under the License Agreement, pursuant to the terms of that certain Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing dated April 5, 2001, executed by Borrower, as trustor in favor of Secore, as beneficiary (the "Deed of Trust "), recorded in the Official Records of Los Angeles County on April 6, 2001, as Instrument No. 01- 0574025. D. Secore has required as a condition subsequent to making the Loan that Borrower and City execute this Agreement in favor of Secore. NOW, THEREFORE, in consideration ofthe covenants contained herein, and othergood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Borrower agree in favor of Secore as follows: 1. Assignment of License to Borrower. City acknowledges and agrees that all rights and interests of the "Licensee" under the License Agreement have been transferred.to Borrower in accordance with the terms of the License Agreement, and City recognizes Borrower as the holder of all such rights and interests. 2. Consent to Encumbrance. Subject to the limitations in the second sentence of this Section 2, City hereby consents to the Deed of Trust and the hypothecation of the License and all other present and future rights and interests of Borrower under the License Agreement and in the Licensed Property pursuant thereto. However, City has not consented or agreed to, and nothing contained in this Agreement shall be construed to, subordinate any of City's rights or interests in or to the Licensed Property to the lien of the Deed of Trust or Secore's rights thereunder. 3. Secore's Right to Cure. In the event of any default or breach by Borrower under the License Agreement (such default or breach being hereinafter referred to as a "default "), Secore shall have the right to cure any default by Borrower during the period (hereinafter referred to as "the cure period ") ending fifteen (15) days after the later of (a) receipt by Secore of written notice of such default from City or from Borrower (specifying the nature of such default and the steps necessary to cure such default), or (b) expiration of any grace period given to Borrower in which to cure such default, provided, however, that if on any earlier date the asset manager assigned to administer the Loan for Secore obtains actual knowledge that City has notified Borrower of such default, then the 15 -day period shall begin to run form that date; provided further that if the default is of such a nature that it cannot reasonably be remedied by Secore within such period, then such period shall be extended for such additional time as may be reasonably necessary to cure such default so long as 2 Secure promptly commences action to cure the same and proceeds therewith in a timely and diligent manner. If the nature of the default is such that it is necessary for Secore to obtain possession of the Property to cure such default, the cure period shall include such additional time as may be reasonably necessary for Secore to accelerate the indebtedness secured by the Deed of Trust, complete any foreclosure thereunder, and obtain possession of the Property. In the event that any such foreclosure or other action or proceeding shall be subject to any stay or injunction, including without limitation any bankruptcy stay or injunction, Secore shall be deemed to be proceeding in a timely and diligent manner to cure the default if Secore has made or is making reasonable efforts to obtain relief from such stay or injunction. 4. Foreclosure of Deed of Trust. City consents to the exercise by Secore of its rights under the Deed of Trust, including without limitation foreclosure. City agrees that in the event the License shall be acquired by Secore at a foreclosure sale under the Deed of Trust or by deed in lieu of foreclosure, or otherwise, City shall approve Secore as licensee under the License Agreement, subject to the terms and conditions contained in Section 13 of the License Agreement (which conditions include, but are not limited to, a written assumption (approved by City) of the licensee's obligations under the License Agreement). In the event that the License shall be acquired by a party other than Secore at a foreclosure under the Deed of Trust, City shall approve the purchaser as licensee subject to the terms and conditions set forth in Section 13 of the License Agreement (which conditions include, but are not limited to a written assumption (approved by the City) of the licensee's obligations under the License Agreement). In either instance, Secore or such other acquiring party shall be entitled to continue to operate the Licensed Property solely for the purposes, and in the manner, contemplated by the License Agreement. 5. Transfer of the License. In the event that Secore acquires the License (whether as purchaser upon the foreclosure of the Deed of Trust, by deed in lieu of foreclosure, or otherwise), and Secore thereafter desires to transfer its rights and interests under the License Agreement, then subject to the terms and conditions set forth in Section 13 of the License Agreement, City shall approve the transfer to the transferee if the transferee executes a written assumption (approved by the City) of all obligations of the licensee under the License Agreement, and so long as the Licensed Property continues to be used solely for the purposes, and in the manner, contemplated by the License Agreement. Provided the conditions set forth in the preceding sentence are met and City approves such transfer, Secore shall automatically be released from any liability for the obligations of the licensee under the License Agreement upon such transfer. 6. No Subordination of License. Unless Secore otherwise consents in writing, the License shall not be subordinate to any mortgage or deed of trust hereafter imposed on the fee interest in the Licensed Property; and all potential future fee mortgages or other lienholders are hereby put on notice that any such fee mortgage or other lien shall be subordinate to the License Agreement and to the rights of Secore hereunder and under the documents referenced herein. 7. Representations and Warranties of City. City represents, warrants and certifies that: (a) a true and correct copy of the License Agreement is attached hereto as Exhibit `B ", and is incorporated herein by this reference; (b) the License Agreement is genuine, valid and enforceable in accordance with its terms, is in full force and effect as of the date hereof, and has not been supplemented, modified, amended or terminated; (c) City has neither given or received notice of the occurrence of a default under the License Agreement and, to the best knowledge of City, there are no defaults, breaches, defenses, claims or offsets thereunder or to the enforcement thereof; (d) the fee payable to City pursuant to Section 3 of the License Agreement has been paid in full, and no other fees are payable in connection with the License Agreement or the License; (e) to the best knowledge of City, Borrower is in compliance with all other obligations of the licensee under the License Agreement; (f) City's fee interest in the Licensed Property is not subject to any deed of trust, mortgage or other lien; (g) to the best of City's actual knowledge (i) Borrower has not assigned, transferred or hypothecated all or any portion of its interest under the License Agreement (except by the Deed of Trust) and (ii) there are no leases, subleases, licenses or other agreements (except the License Agreement) which create rights of occupancy with respect to the Licensed Property. 8. Representations and Warranties of Borrower. Borrower represents, warrants and certifies that: (a) a true and correct . copy of the License Agreement is attached hereto as Exhibit `B" and is incorporated herein by this reference; (b) the License Agreement is genuine, valid and enforceable in accordance with its terms, is in full force and effect as of the date hereof, and has not been supplemented, modified, amended or terminated; (c) Borrower has neither given or received notice of the occurrence of a default under the License Agreement and, to the best knowledge of Borrower, there are no defaults, breaches defenses, claims or offsets thereunder or to the enforcement thereof, (d) the fee payable to City pursuant to Section 3 of the License Agreement has been paid in full, and no other fees are payable in connection with the License Agreement or the License; (e) Borrower has not assigned, transferred or hypothecated all or any portion of its interest under the License Agreement (except by the Deed of Trust); and (f) to the best of Borrower's knowledge, (i) Borrower is in compliance with all other obligations of the licensee under the License Agreement, (ii) City's fee interest in the Licensed Property is not subject to any deed of trust, mortgage or other lien, and (iii) there are no leases, subleases, licenses or other agreements (except the License Agreement) which create rights of occupancy with respect to the Licensed Property. 9. Modification or Termination of License Agreement. The License Agreement shall not be supplemented, modified or amended without the prior written consent of Secore (which consent shall not be unreasonably withheld or delayed). The License Agreement shall not be terminated without prior written consent of Secore unless a default (as defined in Section 3 above) entitling City to terminate the License Agreement shall have occurred and such default has not been cured by Borrower in accordance with the terms of the License Agreement or by Secore in accordance with the terms of this Agreement. 10. Performance of Obligations under the License Agreement. Borrower agrees to perform all obligations of the licensee under the License Agreement without notice or demand from Secore. Any default by Borrower under the License Agreement shall automatically be an Event of Default under the Deed of Trust and the other Loan Documents, and shall entitle Secore to immediately institute foreclosure thereunder, and Secore may enter into possession of the Property and take whatever steps it deems necessary to correct the default under the License Agreement, Any expenses incurred by Secore in connection with the enforcement of its rights hereunder or in curing any default under the License Agreement, including without limitation reasonable attorneys' fees 01 2164050 and attendant expenses, shall be due and payable by Borrower to Secore immediately and without demand, shall bear interest at the "Default Rate" (as that term is defined in the Loan Agreement) and shall be secured by the Deed of Trust. Secore shall not have any liability for the performance of any, ofthe obligations of the licensee under the License Agreement until Secore has acquired the License, and then only in accordance with the terms of the License Agreement. 11. Notices to Secore. City and Borrower shall deliver to Secore copies of all notices or demands given by City or borrower under the License Agreement, including without limitation any notices of default. Such copies shall be given to Secore at the same time that such notices or demands are given to the other party, and may be personally delivered or mailed in the manner provided herein for giving notices. City acknowledges that this Agreement shall be deemed to be the written notice from Secore to the City, required by Section 17 of the License Agreement, requesting written notice from City of any default by Borrower under the License Agreement. 12, Notice Procedure. Any notices required herein shall be personally delivered or mailed, postage prepaid, certified mail, return receipt requested, addressed as follows: If to Secore: Secore Financial Corporation 7315 Wisconsin Avenue, Suite 450 North Bethesda, MD 20814 Attention: William Tanker With copies to: Goldman Sachs Mortgage Company 85 Broad Street, 23'd Floor New York; New York 10004 Attention: Rolf Edwards nT11l Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, New York 10006 Attention: Michael Weinberger, Esq. If to City: Santa Monica City Attorney 1685 Main Street, Room 310 Santa Monica, California 90401 Attention: Marsha Jones Moutrie, City Attorney If to Borrower: By The Blue Sea, LLC c/o The Edward Thomas Companies 9950 Santa Monica Boulevard Beverly Hills, California 90212 Attention: Edward and Thomas Slatkin With copies to: Charles Locko, Esq. 10940 Wilshire Boulevard, Suite 1400 Los Angeles, California, 90024 F TIO Skadden, Arps, Slate, Meagher Floom, LLP Four Times Square New York, New York 10036 Attention: Harvey R. Uris, Esq. or to such other address as may be designated by the parties in the manner provided for giving notice. Notices shall be deemed given upon personal delivery or upon receipt or refusal to accept, as evidenced by the return receipt. 0 13. Miscellaneous. Secore is an intended beneficiary of this Agreement, and may enforce in its favor all provisions hereof. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of City, Borrower and Secore. All rights of Secore under this Agreement may be assigned by Secore without prior notice to the parties hereto and shall inure to the benefit of Secore's successors and assigns, provided that Secore will notify City of any such transfer within ten (10) days thereof. The foregoing sentence is not intended to modify Secore's notice obligations with respect to any transfers by Secore of its rights under the License Agreement pursuant to Sections 4 and 5 of this Agreement. This Agreement may not be supplemented, modified, amended or terminated without Secore's prior written consent. Notice of acceptance hereof by Secore is hereby waived. This Agreement may be executed and recorded in counterparts. APPROVED AS TO FORM: ATTEST: w MARIA STEWART City Clerk Dated: 2001 "City ": CITY OF SANTA MONICA, a municipal corporation "Borrower ": BY THE BLUE SEA, LLC, a Delaware limited liability company EDWARD SLATKIN Title: Man�gcr BY' E THOMAS SL TKIN Title: Manager State of California ) ) ss. County of California ) On September 5, 2001, before me, Maria M. Stewart, Notary Public, personally appeared Susan E. McCarthy, City Manager of Santa Monica, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal Maria M. Stewart, Notar Public Title /Type of Document: Document Date: Address, if any: Number of pages: Other signors: SEAL: i 1 1 A•, a e i x ' i all Estoppel and Attornment Agreement September 4, 2001 Shutters Hotel Site (One Pico) 36 Edward and Thomas Slatkin (By the Blue Sea, LLC) Signer isrepresenting the City'of�8anta Monica. 01 2164050 )b STATE OF CALIFORNIA ) ss. COUNTY OF On • t4ao +/ ,before me,_ personally appeared a ,Q Jl Z ,�,� , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person( whose name( is subscribed to the within instrument and acknowledged to me th he/too executed the same in (byl /h)" /#S authorized capacity(ips), and that by his/ /their signature( on the instrument the person(P or the entity upon behalf of which the person( acted, executed the instrument. WITNESS my hand and seal. Notary Public [SEAL]] °' •.. FRANCES M. OLIVERI ~ COMM. # 1238489 0 a e NOTARY PUBLIC - CALIFORNIA c� r LOS ANGELES COUNTY My Comm. Expires Oct. 18, 2003 01 216405011 STATE OF CALIFORNIA ) ss. COUNTY OF� > ) On L , / 'Ava t ,before me, 1 0 %1r , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the persono) whose name(o is subscribed to the within instrument and acknowledged to me thate)sP*/tbvy executed the same in is h0 /*, authorized capacity(i4), and that by(> s' In /th )4r signature on the instrument the person or the entity upon behalf of which the person() acted, executed the instrument. WITNESS my hand and seal. Notary Public [SEAL]] ":. °.: •. FRANCES M. OLIVERI ° COMM. # 1238489 � `� ° � ,= NOTARY PUBLIC- CALIFORNIASn o ' LOS ANGELES COUNTY .o : °" My Comm. ExpiresOcP.18,2003 EXHIBIT "A" Leaal Description of Project Site PARCEL 1: PARCEL 1 OF PARCEL MAP NO. 18721, IN THE CITY OF SANTA MONICA, AS PER MAP RECORDED IN BOOK 235 PAGES 41 TO 43 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY., PARCEL 2: LOTS 101 11 AND 12 OF TRACT 1111, IN THE CITY OF SANTA MONICA, AS PER MAP RECORDED IN BOOK 17 PAGES 154 AND 155 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 3: LOTS 7, 8 AND 9 OF TRACT 1111, IN THE CITY OF' SANTA MONICA, AS PER MAP RECORDED IN BOOK 17 PAGES 154 AND 155 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 4: THAT PORTION OF PICO PLACE, SHOWN ON THE MAP OF TRACT 1111, IN THE CITY OF SANTA MONICA, AS PER MAP RECORDED IN BOOK 17 PAGES 154 AND 155 OF MAPS, AS AUTO WAY, LYING SOUTHWESTERLY OF THE NORTHWEST PROLONGATION OF THE NORTHEAST LINE OF LOT 7 OF SAID TRACT .1111, AND LYING NORTHEASTERLY OF THE NORTHWEST PROLONGATION OF THE SOUTHWEST LINE OF LOT 9 OF TRACT 1111, AS VACATED BY THE CITY COUNCIL OF THE CITY OF SANTA MONICA BY RESOLUTION NO. 7584 (CCS) , A CERTIFIED COPY OF WHICH WAS RECORDED ON MARCH 31, 1988 AS INSTRUMENT NO. 88- 432777. Legal Description of Licensed Property PARCEL 5: THOSE PORTIONS OF APPIAN WAY AND PICO BOULEVARD, AS SAID STREETS ARE SHOWN ON THE MAP OF TRACT 39977, IN THE CITY OF SANTA MONICA, AS PER MAP RECORDED IN BOOK 986 PAGES 17 AND 18 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS DESCRIBED IN THAT CERTAIN LICENSE AGREEMENT, DATED AUGUST 23, 1988 AND RECORDED SEPTEMBER 28, 1988 AS INSTRUMENT NO. 88- 1563010, AND PER ASSUMPTION AND ASSIGNMENT AGREEMENT RECORDED DECEMBER 4, 1992 AS INSTRUMENT NO: 92- 22754.23. LW056389J.NV4 EXHIBIT "A" 01 2164050 1] EXHIBIT `B" LICENSE AGREEMENT CONTRACT NO RECOP,DE !l CMC AL .!C ? REC DER' OFFICE9(, LOS AN CO'J t CA ORNIA _.. 1 MIN' 2 PRSEP 28 1988 RECORDING REQUESTED BY PASTY AND WHEN RECORDED MAIL TO: tt City of Santa Monicaa Attention: Peggy Curran, Director of Economic Development 1685 Main Street ��Q Santa Monica, California 90401 -3295 NO RECORDING FEE PER SECTION 27383 OF THE CALIFORNIA GOVERNMENT CODE Ftt�S J�cd LICENSE AGREEMENT ' J � (j This LICENSE AGREEMENT (hereinafter "License Agreement "), _ entered into this Z -�a.Dday of August, 1988, by and between the CITY OF SANTA MONICA, a municipal corporation (hereinafter "City ")., and SAM STEIN (hereinafter "Licensee "), is made with reference to the following recitals of fact: R E C I T A L S: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the powers enumerated in the statutes of the State of California and the Charter of the City. B. Licensee is the owner of the real property located in the City of Santa Monica, County of Los Angeles, state of California, more particularly described in the legal description attached hereto as Exhibit "A" (hereinafter "Project Site "), and is the owner of R.E. International Hotels Group. 8/19/88/RHH479 -10 01 2164050 C. Licensee's plans for the construction' of a hotel ( "Project Plans ") on the Project Site were approved by City pursuant to Development Review 325 (CUP 417, ZA 5169 -Y) on December 1, 1987 ( "Project Approval "). D. City and Licensee desire to enter into a License Agreement for the operation of various hotel facilities described herein, on the real property located in the City of Santa Monica which is hereinafter described upon the terms and conditions herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM AND PURPOSE OF LICENSE. Pursuant to the terms and conditions contained herein, and pursuant to Special Condition 4 of the Project Approval, the City hereby grants to Licensee to the extent permitted by law a license ( "License ") for the exclu- sive use and occupancy for hotel facilities pursuant to the Project Plans ( "Project ") upon the following portions of City property and rights -of -way located in the City of Santa Monica, County of Los Angeles, State of California (hereinafter collec- tively referred to as the "Licensed Property ") : (a) a portion of the subterranean area under Appian Way, approximately 40 feet wide between Pico Boulevard and Vicente Terrace, for subterranean parking, as described in Exhibit "e", attached hereto and incor- porated herein by this reft- rence; (b) a portion of the air space over Appian Way, approximately 56 feet wide', for an open air ""' "U, 94 1862745 EXHIBIT 9 z / / 1 216405E pedestrian overpass, as described in Exhibit "C ", attached hereto I% and incorporated herein by this reference; and (c) a portion of Pico Boulevard, approximately 52 feet by 29 feet for a restaurant terrace /dining area, as described in Exhibit "D ", attached hereto and incorporated herein by this reference. The Licensed Property shall be used by Licensee for an open air pedestrian overpass and patio area, a portion of a subterranean parking structure, and an outdoor dining area pursuant to the Project Plans, and such other uses as may hereinafter be approved by the City pursuant to then. - applicable procedures for approvals of new uses or changed uses. City hereby grants the Licensee this License for a term equal to the life of the hotel structure to be constructed pursuant to the Project Plans, including any alterations, remodeling or repairs made during the course of the life of the building ( "Project "). The License shall terminate when the hotel structure is more than 50% voluntarily removed or replaced, except if such replacement results from fire, flood, earthquake or other peril; provided, however, in the event of the involun- tary destruction of more than 50% of the hotel structure, the License shall terminate unless Licensee obtains a Building Permit for the replacement of the hotel structure within eighteen (18) months of such destruction and Licensee diligently thereafter pursues the completion of such replacement structure. Notwith- standing anything to the contrary contained, the term of the within License shall terminate seventy -five (75) years from the date hereof, unless termiftited earlier as provided in Sections 18 and 28 of this License Agreement. 8 94 "8627 EXHIBIT 2. PREMISES AND USE. The Licensed Property covered by this License Agreement shall be only such as are described in Paragraph 1 above. Licensee shall not use any property of the City other than the Licensed Property. The property described in Exhibit "B" shall be used for subterranean parking in conformance with the Project Plans. The property described in Exhibit "C" shall be used for an open air pedestrian overpass and patio area in conformance with the Project Plans. The property described in Exhibit "D" shall be used for an outdoor dining area in conformance with the Project Plans. 3. LICENSE FEE. Licensee shall pay the City a lump su-m amount of $553,000 in full payment for the License created herein. Payment to the City shall be by check and be made payable to the order of the City of Santa Monica and made prior to the issuance of the Building Permit for the subject hotel. 4. FOOD, BEVERAGE AND CONFECTIONERIES All foods, bever- ages and confectioneries sold or kept for sale by the Licensee on the Licensed Property shall conform to federal, state, county and municipal food laws, ordinances and regulations in all respects. The sale of alcoholic beverages on the Licensed Property shall be allowed upon compliance with all applicable federal, state and city statutes, regulations, rules and ordinances. 5. MAINTENANCE AND OPERATION Licensee,.. at its sole obligation and expense, shall keep the Licensed Property in a clean, sanitary, and readonably attractive condition. -4- RM 94 1862745 ) 1 2104050 6. CONDITION OF LICENSED PROPERTY. Licensee hereby accepts the Licensed Property in its present "AS -IS" physical condition, and City shall not be required to make any alterations, improve- ments or repairs therein or thereon. 7. CONDUCT AND RIGHTS OF ENTRY BY CITY. The Licensee shall at all times conduct its business on the Licensed Property in a quiet and orderly manner so that same shall not become or constitute a nuisance either public or private. Notwithstanding anything to the contrary, it is expressly understood and agreed that the City, any authorized agent thereof, or any other public agency having jurisdiction thereof, shall have the right of entry onto and upon the Licensed Property for the purposes of: (i) performing maintenance, repair or replacement on the Licensed Property for public purposes (including, but not limited to, the repair, maintenance and replacement of public utilities), (ii) performing the mainten- ance, repair or replacement on the Licensed Property in the event that Licensee shall default in its obligations to maintain the Licensed Property as herein provided, and (iii) making emergency repairs. Such right of entry by the City or any authorized agent thereof shall be exercised in such a manner as to avoid any unreasonable or unnecessary interference with the possession, use and /or enjoyment of the Licensee (or its authorized agents, business invitees, etc.) and shall be preceeded by at least forty -eight (48) hours prior written notice to Licensee, however, that such right of entry'. "shall be permitted without any prior notice whatsoever in the event of an emergency. Notwithstanding e 884540, 5 EXHIBIT 2164050`` anything to the contrary contained herein, it is expressly understood and agreed that the City: (i) cannot guarantee nor shall it assume any liability in the event that any other public agency fails to give to License such notice as described hereinabove, and (ii) shall not be responsible or liable for the acts, errors, or omissions of any other public agency or third party with respect to such other public agency's or third party's actions regarding the maintenance, repair, or replacement of the Licensed Property. 8. EMPLOYEES' AND MECHANICS' LIENS. Licensee shall keep the Licensed Property and every estate, right, title and interest therein, or in or to any part thereof, at all times during the term of this License Agreement, free and clear of any mechanics' liens, and other liens, and liens of labor, services, supplies, equipment, or material incurred by it, and Licensee will at all times fully pay and dischar-e and wholly protect, defend and save harmless City on account of said liens, or claims, or assertions, or filings thereof. If Licensee shall contest the validity of any such lien, claim, or demarrd, then Licensee shall, at its sale cost defend itself and City against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof, against Licensee or the Licensed Property, upon the condition that, if City shall require, Licensee shall furnish to City a surety bond in an amount equal to such contested lien claim or demand holding the Licensed Property free from the effect of such lien or claim. 88-15 010 —6— EXHIBIT g # 0 i -W 01 2164050 �V 9. TAXES. Licensee shall exonerate, indemnify and hold" harmless the City from and against, and shall defend the City from and against, and shall assume full responsibility for, payment of all wages or salaries and all federal, state, and local taxes or contributions imposed or required under the Unemployment Insurance, Social Security, Income Tax laws, Worker's Compensation laws, or other laws with, respect to Licensee's employees engaged in the performance of Licensee's obligations hereunder. Licensee shall pay any and all taxes upon personal property and improvements belonging to Licensee, and Licensee shall pay all sales and other taxes levied against the operation of Licensee's business. 10. INSURANCE REQUIREMENTS. Prior to the commencement date of this License Agreement, Licensee shall furnish City with cer- tificates showing the type, amount, class of operations covered, effective dates and dates of expiration of the insurance policies with respect to the insurance coverage as required and described hereinafter. Licensee's indemnification obligations shall not be limited or reduced due to the Insurance coverage required herein. Such certificates shall also contain substantially the following statement: "The insurance covered by this certificate shall not be canceled or materially altered, except after thirty (30) days' written notice has been received by the City of Santa Monica ". It is agreed that Licensee shall maintain or cause to be maintained in force at all times during the performance of this License Agreement the fol'l'owing policies of insurance, and that said policies shall be primary and secured from a good and 01 2.64050 responsible company or companies, acceptable to City, doing insurance business in the State of California: A. Comprehensive General Liability Insurance A comprehensive general liability policy with a minimum limit of not less than Five Million Dollars ($5,000,000) per occurrence combined single limits for bodily injury and property damage, covering at least all of the following: 1. Premises - Operations 2. Premises Medical a. Minimum limit of $1,000 /10,000 3. Products /Completed Operations 4. Personal Injury 5. Fire Legal Liability with a minimum limit of $50,000.00 6. Contractual Liability B. Worker's Compensation Insurance and Employer's Liability Insurance Licensee shall maintain or cause to be maintained for its employees: (i) worker's com- pensation insurance which complies with all requirements of the California Labor Code, and (ii) Employer's Liability Insurance with limits of $1,000,000 per accident. C. Additional Requirements Pertaining to Policies of Insurance. Any insurance policies maintained (or caused to be maintained) by Licensee to satisfy the requirements of this License Agreement shall meet the following re tPirements: -1812 7y5 5 _8_ 94 186 P M RIT ' 01 2M059 (i) Acceptability of Insurers. Each such required insurance policy shall be procured from insurance companies admitted to do business in the State of California and shall be rated B + 10 or better by A.M. Best's rating service. (ii) Verification of Insurance. Licensee shall furnish to City satisfactory certificates of insurance, copies of each insurance .policy, and original endorsements affecting coverage required and fully complying with all insurance specifications stated herein. Each such original endorsement shall be signed by a person authorized by that particular insurer to bind coverage on its behalf. (iii) Coverage During Construction of Project. Licensee shall cause the General Contractor for the Project to provide to the City certificates of insurance naming the City as an addi- tional insured thereunder and binding endorsements evidencing satisfactory compliance by the General Contractor with the insurance requirements stated herein. O'Tl 010 _ -9- � EXHIBIT R 94 ,862745 1 2164050 ., (iv) Deductibles and Self- Insured Retention. °3 Any deductibles or self- insured reten- tion on the insurance policies required herein shall be declared to City and be subject to City's written approval. At the discretion of City, either (1) the insurer may be required to reduce or eliminate such deductibles or self- insured retentions as respects City, its officials, and employees, or (2) Licensee may be required to procure a bond guaranteeing payment of losses, related investigation, claim admini- stration, and defense expenses. (v) Notice Pertaining to Insurance Poli- cies. Each policy of insurance shall require thirty (30) calendar days prior written notice of cancellation, non- renewal, or material changes in the terms of such policy. (vi) Miscellaneous. Each policy of insur- ance shall also contain the following or comparable language: (aa) "This insurance shall not be canceled, limited in scope of covetage or limits or non. - renewed until after thirty 7 1 2164050 (30) calendar days written notice has been given to the City.° (bb) "The City of Santa Monica, members of its City Council, boards and commissions, offi- cers, agents, and employees are included as additional insureds with regard to dam- ages and defense of claims arising from (1) activities performed by or on behalf of Licensee or, (2) products and completed operations of Licen- see or (3) premises owned, leased, or used by Licensee." (cc) "It is agreed that any insur- ance maintained by City shall apply irr excess of and not contribute with, insurance provided by the policy." (dd) "- Insurers shall have no right of recovery or subrogation against City (including its employees, and other agents and 'agencies), it being the intention of the parties that the insurance policies so effected shall protect both parties and be primary cover- age for any and all losses covered by the above - described insurance." (ee) "The above- described policies shall apply separately to each insured against whom claim is made or suit is brought except. with respect to the limits of the insurance company's lia- bility." (ff) "The insurance company issuing the policy or policies shall have no recourse against the City for payment of any premi- ums or for assessments under any form -of policy." (gg) "Any and all deductibles in the above - described insurance policies shall be assumed by and be for the account of, and at the sole risk of, Licensee." D. In the event %Licensee, for any reason, fails to maintain (or cause to be maintained) the insurance 01 2164.050 coverage which is required pursuant to this License af` Agreement, the same shall be deemed a material breach by Licensee of this License Agreement. In such event, and subject to Licensee's rights to cure said default pursu- ant to the provisions of Paragraph 18 hereinafter (pro- vided, however, Licensee shall for purposes hereof have only ten (10) business days to cure said default), City, at its sole option, may terminate this Agreement and obtain damages from the Licensee resulting from said breach. Alternatively, City may purchase such required insurance coverage (but has no special obligation to do so), and Licensee shall pay to the City the cost of all insurance obtained by the City within ten (10) business days from the receipt by Licensee of an invoice covering the premiums for said insurance obtained by the City. 11. LAW AND ORDINANCE. Licensee shall conduct its business on the Licensed Property in accordance with all the laws, ordinances, rules and regulations applicable to such business, as from time to time adopted by City, County, State and united States. 12. PERMITS AND LICENSES. The Licensee shall be required to obtain any and all permits or licenses that may be required from time to time in connection with the operation of its business on the Licensed Property. 13. PROHIBITION AGAINST TRANSFER. Licensee shall not assign, sublease, hypothecate, or transfer this License Agreement or any interest therein directly or indirectly, by operation of ,862745 1 2164050 law or otherwise without the prior written consent of the Cityl`} which consent shall not be unreasonably withheld; provided, however, that Licensee may assign, sublease, hypothecate or otherwise transfer any or all of its rights under this License Agreement to any successor owner of the Project Site or any portion thereof and /or to any person or entity providing finan- cing to such owner which financing is secured in whole or in part by the Project Site and /or the improvements thereon. In the event of a transfer or sale by Licensee of its interest in the Project Site or any portion thereof, and provided the transferee and /or new owner assumes all of Licensees obligations and cove- nants hereunder pursuant to a written assignment and assumption agreement approved by the City (which approval shall not be unreasonably withheld by the City) and provided further that there is no change of use for the Project or the Licensed Prop- erty pursuant to the then City permitted uses for the Project at the time of such transfer, then the undersigned Licensee shall have no further liability or obligations hereunder. Notwith- standing anything to the contrary contained hereinabove, the Citv does hereby acknowledge that Licensee has entered into a Manage- ment Agreement ( "Management Agreement ") with the Hyatt Corpora- tion, wherein Hyatt Corporation shall manage and operate the hotel and all of its facilities; the City hereby agrees that the Management Agreement does not constitute an assignment, sublease or transfer of this License Agreement and accordingly the execution of the Management Agreement does not constitute a violation under this Paragraph 13. Licensee hereby agrees to i • CS . c 3 0 10 -EXHIBIT 8 � 94 1862745 01 216405 �n deliver to the City for review a copy of the fully executed Management Agreement and the City does hereby covenant and agree to keep the contents of such Management Agreement confidential and to not disclose the contents of the Management Agreement to any third party. 14. WAIVER OF BREACH. A waiver by the City of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the same or a different character. 15. HOLD HARMLESS AND INDEMNIFICATION. Licensee shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, servants and employees from and against any and all loss, damages, liability, claims, suits, costs and expenses, whatsoever, including reasonable attorneys' fees, arising out of Licensee's obligations pursuant to this License Agreement or Licensee's activities and uses on the Licensed Property. Licensee shall indemnify, defend and hold harmless the City, its City Council, boards and commissions, officers, agents, servants and employees from and against any and all claims and losses whatsoever, including reasonable attorneys' fees, occurring or resulting from any and all persons, firms or corporations furnishing or supply work, services, materials, equipment or supplies in connection with services or work conducted or performed at' Licensee's request or on behalf of Licensee pursuant to this License Agreement and arising out of such activities*,gr work,. and from any and all claims and losses 01 2164050 ( whatsoever, including reasonable attorneys' fees, occurring or resulting to any person, firm or corporation for damage, injury or death arising out of Licensee's operations. 16. INDEPENDENT CONTRACTOR It is understood and agreed that Licensee, in the performance of this License Agreement, will be acting in the wholly independent capacity and not as the agent, employee, partner, or joint venturer of the City. 17. DEFAULT. In the event Licensee fails or refuses to perform any of the provisions of this License Agreement at the time and in the manner required hereunder, City shall 'send to Licensee and to any lender (if such lender has a recorded encum- brance against the Project Site and if such lender has given written notice to the City advising the City that it is a lender for the Project and requests written notice from the City of any such default by Licensee) written notice of the default specify- ing the nature of such default and the steps necessary to cure such default. Notwithstanding the foregoing, the failure of the City to send the aforesaid notice to any said lender shall not invlidate the notice of default sent by the City to Licensee. If such default is not cured within a period of thirty (30) days after receipt by Licensee from City of written notice of default, City may revoke this License Agreement forthwith by giving Licensee written notice thereof; provided, however, that if the nature of Licensee's noncompliance is such that more than thirty (30) days are reasonably required for its cure, then Licensee shall not be deemed to bean default if Licensee commenced such cure within said thirty (30) day period and thereafter diligently pursues such cure "to completion. r -16- I� 1862 IBIT ,I y 2164050 18. ESTOPPEL CERTIFICATE. City shall at any time upon not less than thirty (30) days' prior written notice from Licensee execute, acknowledge and deliver to Licensee a statement in writing (a) certifying that this License Agreement is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this License Agreement as so modified is in full force and effect), (b) acknowledging that there are not, to City's knowledge, any uncured defaults on the part of Licensee, or specifying such defaults if any are claimed, and c) setting forth such additional information as may be reasonably requested by Licensee or by a prospective purchaser or encumbrancer of the Project Site. Any such statement may be conclusively relied upon by any prospective purchaser or encum- brancer of the Project Site or of Licensee's business. If City fails to deliver such statement within such time, it shall be conclusive that (a) this License Agreement is in full force and effect without modification, and (b) there are no uncured defaults in Licensee's performance. City hereby further agrees to execute any documents as-may be reasonably required by a lender and /or encumbrancer of the Project Site to effectuate an attornment of this License Agreement between City and such lender and /or encumbrancer of the Project Site, provided such attornment agreement shall not impose any additional obligations upon the City or grant to such lender any additional rights with respect to the Project than Licensee had. 19. NOTICES. All notices, demands, requests or approvals to be given under this License Agreement, shall be given in writing and shall be deemed served when delivered personally, or seventy-i Ji7® ®1 -17- 86 145 EXHIBIT 1 01 2164051 two (72) hours after the deposit thereof in the United States mail, postage prepaid, registered, or certified, addressed as hereinafter provided. All notice, demands, requests or approvals from Licensee to City shall be addressed to the Santa Monica City Attorney, 1685 Main Street, Santa Monica, California 90401. All notices, demands, requests or approvals from the City to Licensee shall be addressed to: Sam Stein R.E. International Hotels Group 9460 Wilshire Boulevard Beverly Hills, California 90212 With a copy to: Howard, Kulik & Chizever 10960 Wilshire Boulevard Suite 2100 Los Angeles, California 90024 Attention: Roger H. Howard, Esq. 20. ATTORNEYS' FEES AND COSTS OF LITIGATION. Should either party hereto institute any action or proceeding in court to enforce any provision hereof or for damages by reason of an alleged breach of any provisions of this License Agreement, the prevailing party shall be entitled to receive from the losing party all costs and expenses and such amount as the court may adjudge to be reasonable attorneys' fees for the costs incurred by the prevailing party in such action or proceeding. 21. CAPTIONS FOR CONVENIENCE. The captions herein are for convenience only and are not a part of this License Agreement and do not in any way limi1r, define or amplify the terms and provisions hereof. y 2164050 22. COUNTERPARTS. This License Agreement may be executed in several counterparts, each of which is an original, and all of which together constitute but one and the same document. 23. MERGER OF NEGOTIATIONS. This License Agreement repre- sents the full and complete understanding with respect to the subject matter herein between the parties hereto and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. 24. SEVERABILITY. The invalidity of any provision of this License Agreement as determined by a court of competent jurisdiction shall in no way affect the validity of any other provision hereof. 25. GOVERNING LAW. The validity of this License Agreement and any of its terms or provisions, as well as the rights and duties, shall be interpreted and construed pursuant to the law of the State of California. 26. QUIET POSSESSION; EXCLUSIVE REMEDY UPON DETERMINATION OF INVALIDITY. So long as Licensee observes and performs all of the covenants, conditions, and provisions on Licensee's part to be observed and performed hereunder, Licensee shall have quiet possession of the Licensed Property to the extent permitted by law and as set forth in this License Agreement, and except to the extent permitted or required by law, City shall not unreasonably interfere with Licensee's quiet possession of the Licensed Prop- erty. Notwithstanding thor foregoing, city shall be without any obligation or duty to assure that Licensee's quiet possession of the Licensed •P, Yoperty will not be interfered with by third parties. '/ n.a A 1pld r, 01 216,1050 In the event this License Agreement is determined to be invalid by final judgment of a court of competent jurisdiction, this License Agreement shall immediately terminate and Licensee may be required, at Licensee's sole expense, to remove any and all improvements on the Licensed Property, and repair any damages caused thereby if: (i) said Court requires such removal, or (ii) the City reasonably determines that such removal is necessary for the public welfare. In the event of such termination and prior to any removal of the subject improvements, city will use reasonable best efforts to explore with Licensee alternative means for permitting the uses of the Licensed Property described herein. However, it is understood and agreed that actions by City concerning exploration of alternative means shall not bind the City, and that the City Council, in its sole discretion, has the exclusive authority to approve or disapprove any potential alternatives and to require the execution of appropriate written agreements setting forth the terms of such alternative. Licensee expressly agrees that Licensee shall have no claim or right against City for termination based upon the invalidity of the License Agreement and Licensee hereby waives any such claims or rights against City. 27. TERMINATION. This License Agreement is entered into in contemplation of the construction by Licensee of a hotel on the Project Site in accordance with the Project Plans. If for any reason, including, but not.-limited to, a final determination by.a court of competent jurisdiction that said hotel cannot be a 64050 constructed, or if Licensee does not commence construction of said hotel within three (3) years from the date of execution of this License Agreement, then this License Agreement shall become null and void and of no further legal force and effect and all funds paid hereunder by Licensee to City, less a sum equal to all funds expended pursuant to this License Agreement and all accrued and unpaid expenses, shall be returned to Licensee; provided, however, in no event shall City be obligated to return any funds pursuant to this paragraph after three (3) years from the date of execution of this License Agreement, IN WITNESS WHEREOF, the parties have caused this License Agreement to be executed the day and year first above written. APPROVED AS TO FORM: CITY OF SANTA MONICA, a municipal corporation By Robert M. Myers, John Jaii i City Attorney C "ty an LICENSEE• SAM STEIN Sam in -21- am l/ 94 1862745 i LEGAL DESCRIPTION 01 216do5® ... PARCEL 1: LOT 1 OF TRACT NO. 39977, IN THE CITY OF SANTA MONICA, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 986 PAGES 17 AND 18 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 2: LOTS 10, 11 AND 12 OF TRACT NO. 1111, IN THE CITY OF SANTA MONICA, IN THE COUNTY OF LOS ANGELES, STATE OF CALFORNIA, AS PER MAP RECORDED IN BOOK 17 PAGES 154 AND 155 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 3: LOTS 7, 8, AND 9 OF TRACT 1111, IN THE CITY OF SANTA MONICA, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 17 PAGES 154 AND 155 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. P I STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) ,i 01 2164050 On August 23, 1988, before me, the undersigned, a Notary Public in and for said State, personally appeared John Jalili, known to me to be the City Manager of the City of Santa Monica, a municipal corporation,. and known to me to be the person who executed the within instrument on behalf of said City of Santa Monica, and acknowledged to me that such City of Santa Monica executed the same WITNESS my hand and official seal GRANT T. BURTON ' Notary Public -0alitomia LOS ANGELES COUNTY i My Comm. Exp. Dec. % 1991 (SEAL) i 1 tos Angeles, State Commission expires or the County of California MIEM STATE OF CALIFORNIA ) )SS. COUNTY O� LOS ANGELES ) On Notary Public 'fin appeared the basis of sat s� subscribed to /the executed the same. W MA 25, 19 be re ai County oily known ,t actory evidence to be t within instrument/ and 01 216405 , me, the undersigned aZ and State, peraonall,+ me or proved tome, -on hh, person whose na.\fe is % aXknowledged that he my hand,. and official seal. OF7COUNTy \ ' ,\ GRA Notary lo d r y P u 1 c in r LOS AY %� County a. State My Com881 / ( S E A L ) STATE OF CALIFORNIA ) )SS. COUNTY OF LOS ANGELES ) On 2 3 1Q , before me, the undersigned, a Notary Public i an or Sal and State, personally appeared SAM STEIN, personally known to me or proved to me on the basis of satisfactory evidence to be the ,person whose name is subscribed to the within instrument and acknowledged that he executed the same. WITNESS my hand and official seal. OFFICIAL SEAL GRANT T. BURTON Notary Public C 11tomla Los ANGELES couNTY No ry eUD11C i a or sai M County and State ( S E A L ) 3v- EXHIBIT 1862745 01 2164050(1 EXHIBIT "A" i Legal Description of Project Site PARCEL 1: PARCEL 1 OF PARCEL MAP NO. 18721, IN THE CITY OF SANTA MONICA, AS PER MAP RECORDED IN BOOK 235 PAGES 41 TO 43 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 2: LOTS 10, 11 AND 12 OF TRACT 1111, IN THE CITY OF SANTA MONICA, AS PER MAP RECORDED IN BOOK 17 PAGES 154 AND 155 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 3: LOTS 7, 8 AND 9 OF TRACT 1111, IN THE CITY OF' SANTA MONICA, AS PER MAP RECORDED IN BOOK 17 PAGES 154 AND 155 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 4: THAT PORTION OF PICO PLACE, SHOWN ON THE MAP OF TRACT 1111, IN THE CITY OF SANTA MONICA, AS PER MAP RECORDED IN BOOK 17 PAGES 154 AND 155 OF MAPS, AS AUTO WAY, LYING SOUTHWESTERLY OF THE NORTHWEST PROLONGATION OF THE NORTHEAST LINE OF LOT 7 OF SAID TRACT .1111, AND LYING NORTHEASTERLY OF THE NORTHWEST PROLONGATION OF THE SOUTHWEST LINE OF LOT 9 OF TRACT 1111, AS VACATED BY THE CITY COUNCIL OF THE CITY OF SANTA MONICA BY RESOLUTION NO. 7584 (CCS) , A CERTIFIED COPY OF WHICH WAS RECORDED ON MARCH 31, 1988 AS INSTRUMENT NO. 88- 432777. Legal Description of Licensed Property PARCEL 5: THOSE PORTIONS OF APPIAN WAY AND PICO BOULEVARD, AS SAID STREETS ARE SHOWN ON THE MAP OF TRACT 39977, IN THE CITY OF SANTA MONICA, AS PER MAP RECORDED IN BOOK 986 PAGES 17 AND 18 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS DESCRIBED IN THAT CERTAIN LICENSE AGREEMENT, DATED AUGUST 23, 1988 AND RECORDED SEPTEMBER 28, 19.88 AS INSTRUMENT NO. 88- 1563010, AND PER ASSUMPTION AND ASSIGNMENT AGREEMENT RECORDED DECEMBER 4, 1992 AS INSTRUMENT NO. 92'- 2275423. 1862145 C \A056389J.NW4 EXHIBIT "A"