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R44- Economic Development Agency
CITY OF SAN BERNARDINO ORIGINAL ECONOMIC DEVELOPMENT AGENCY I FROM: Emil A.Marzullo SUBJECT: Maya San Bernardino Cinemas, LLC – Interim Executive Director Amended and Restated 2008 Disposition and Development Agreement (Central City North Redevelopment Project Area) DATE: March 31,2010 Synopsis of Previous Commission/Councit/Committee Action(s): On October 20, 2008, the Community Development Commission of the City of San Bernardino ("Commission") approved Resolution No. CDC/2008-41,authorizing the Interim Executive Director of the Agency to enter into a Redevelopment Project Study and Exclusive Right to Negotiate Agreement("ERN")with Maya Cinemas North America,Inc.("Maya NA"). On December 15, 2008, the Mayor and Common Council of the City of San Bernardino ("Council") consented to the disposition of the 20-Plex to Maya NA and the Commission approved the sale of the 20-Plex and authorized the Interim Executive Director to execute the 2008 Disposition and Development Agreement ("DDA") by and between the Agency and Maya NA. On February 2,2009,the Council authorized the submittal of a HUD Section 108 Loan Application to the U.S.Department of Housing and Urban Development("HUD"),and on March 6,2009,the Community Development Citizen Advisory Committee recommended to forward the Pre-Application for the HUD Loan Guarantee for the re-finance and rehabilitation Project to the Council for approval. On April 6, 2009, in a Public Hearing, the Council approved and authorized the submittal of the HUD Loan Guarantee application for Maya NA to HUD. On May 18, 2009, the Commission approved Resolution No. CDC/2009-20, authorizing Amendment No. 1 to the 2008 DisP-osition and Development Agreement by and between th_ a Agency and Maya NA. Recommended Motion(s): (Community Development Commission) Resolution of the Community Development Commission of the City Of San Bernardino approving and authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency") to execute the Amended and Restated 2008 Disposition and Development Agreement by and between the Agency and Ma ay San Bernardino Cinemas,LLC(Central City North Redevelopment Project Area Contact Person(s): Kathleen Robles Phone: (909)663-1044 Central City North Project Area(s): Redevelopment Project Area Ward(s): 1" Supporting Data Attached: 0 Staff Report OResolution(s)0 Agreement(s)/Contract(s)0 Map(s)0 Letter(s) Funding Requirements: Amount: $ -0- Source: N/A Budget Authority: N/A Signature: Fiscal Review: Emil A.Mar o, ntcrlm Execu ve Director Lori Pat to-Ti ,InV54Administrative Services Director Commission/Council Notes: P wgn AC-My Con ii nTM 201Mw s]o May.SB Ci�aa LrC-a ene am R< pan SKd COMMISSION MEETING AGENDA Meeting Date: 04/05//2010 Agenda Item Number: Q• ECONOMIC DEVELOPMENT AGENCY STAFF REPORT Maya San Bernardino Cinemas,LLC—Amended and Restated 2008 Disposition and Development Agreement(Central City North Redevelopment Project Area) BACKGROUND: On September 28, 2008, CinemaStar Luxury Theaters, Inc. ("CinemaStar"), the tenant of the Redevelopment Agency of the City of San Bernardino ("Agency") owned the 20-Plex movie theater building(the"20-Plex")located at 450 North"E" Street in downtown San Bernardino,ceased operations. On November 7, 2008, the Agency filed an unlawful detainer action with the Superior Court of California which held CinemaStar to be in default of the terms of their lease, declared the lease to be terminated and granted possession of the 20-Plex to the Agency as of December 1, 2008. On October 20, 2008, the Community Development Commission of the City of San Bernardino ("Commission") approved Resolution No. CDC/2008-41, authorizing the Interim Executive Director of the Agency to enter into a Redevelopment Project Study and Exclusive Right to Negotiate Agreement ("ERN")with Maya Cinemas North America, Inc. ("Maya NA"). On December 15, 2008, the Mayor and Common Council of the City of San Bernardino ("Council") consented to the disposition of the 20-Plex to Maya NA and the Commission approved the sale of the 20- Plex and authorized the Interim Executive Director of the Agency to execute the 2008 Disposition and Development Agreement("DDA")by and between the Agency and Maya NA. On February 2, 2009,the Council authorized the submittal of a HUD Section 108 Loan Application to the U.S. Department of Housing and Urban Development ("HUD"), and on March 6, 2009, the Community Development Citizens Advisory Committee (CDCAC) recommended to forward the Pre-Application for the HUD Loan Guarantee for the rc-finance and rehabilitation Project to the Council for approval. On April 6, 2009, in a Public Hearing the Council approved and authorized the submittal of the HUD Loan Guarantee application for Maya NA to HUD. The application was submitted to HUD and the Agency received HUD's approval on September 25,2009. On May 18, 2009, the Commission approved Amendment No. 1 to the DDA extending the close of escrow deadline from July 1, 2009 to October 30, 2009, due to unforeseen delays in the Agency obtaining legal possession of the building and its contents, HUD's review and approval of the Section 108 Loan, and Maya NA securing its financing as stated and outlined in the DDA. CURRENT ISSUE: Amendment No. 1 of the DDA states that escrow shall close for the transfer of the 20-Plex, which is referred to as the Phase I Property in the DDA, no later than October 30, 2009. As a result of HUD's September 25, 2009, approval of the Section 108 Loan and the current financial climate making financial commitments more complex with lenders being more cautious,the October 30, 2009, close of escrow was P Ugmdu mm CO ismon\CIX"10 5-10 wye M Cl�LLC-Amo IN endR Wm DDA 50..dac COMMISSION MEETING AGENDA Meeting Date: 04/05/2'0/10 Agenda Item Number: QNl Economic Development Agency Staff Report Maya San Bernardino Cinemas, LLC—2008 Amended and Restated DDA Page 2 not met thereby placing the DDA into a status allowing the Agency to terminate the DDA at any time. Changes to the DDA are now necessary to: 1) cure the current default on the escrow closing date by extending the close of escrow date; 2) allow Maya NA to assign its interest in the original 2008 DDA to its subsidiary Maya San Bernardino Cinemas, LLC ("Maya SB"); 3) finalize the finance structure for the project; 4) require that a Fund Control Account be established for all construction funds received, regardless of sums; and 5) clarify and detail specific development issues in order to proceed with the renovation of the 20-Plex. The Amended and Restated 2008 DDA addresses the current non-compliance by extending the close of escrow to June 30, 2010, and if certain performance measures are met, allowing escrow to be extended to, but not beyond, September 30, 2010. Additionally, it lays out the finance structure and terms under which the development would be funded as follows: 1) Maya SB to assume the existing 1998 HUD Section 108 Loan; 2) Maya SB to obtain New Market Tax Credits; 3) Maya SB to deposit $2,600,000 in cash equity along with a $450,000 Letter of Credit or other cash funds; 4) Maya SB to sign a promissory note in the amount of$537,153.50 giving the Agency a subordinate deed of trust on the 20-Plex; 5) Maya SB to sign an additional promissory note in the amount of$164,197.10 giving the Agency a subordinate deed of trust on the 20-Plex or pay the amount of$167,197.10 upon the Close of Escrow; and 6) the City to pursue obtaining a new HUD Section 108 Loan; or Maya SB to obtain private financing in conjunction with any or all of the items as stated above. Furthermore,to make the financing of the 20-Plex development more feasible for Maya SB, the Amended and Restated 2008 DDA clarifies, specifies,and details the following: 1. removal of Phase I-A and Phase II from the proposed development; 2. assignment of the DDA by Maya NA, per Section 1.05 of the DDA, to Maya SB, a subsidiary of Maya NA in order to obtain the necessary equity as required by Section 3.05(a)(5) of the DDA; 3. requirement for Davis-Bacon or State Prevailing Wage compliance; 4. financing structure and terms, including a $537,153.50 promissory note to the Agency and payment of the February 2010 interest payment to HUD on the existing 1998 HUD Section 108 Loan or a $167,197.10 promissory note to the Agency in lieu of the February 2010, interest payment; 5. the requirement for a Fund Control Account; 6. scope of development; and 7. schedule of performance to assure that interim construction milestones are met. ENVIRONMENTAL IMPACT: The action of amending and restating a Disposition and Development Agreement does not meet the definition of a Project under Section 15378 of the California Environmental Quality Act ("CEQA"), which states that a "Project' means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. P\Agadu\Comm Dev C ioiw\ 3U1O 5-10 Mry MCiuewgLLC-AnxM[d and Ra WDDA SR.drc COMMISSION MEETING AGENDA Meeting Date: 04/05/2010 Agenda Item Number: _F"L Economic Development Agency Staff Report Maya San Bernardino Cinemas, LLC—2008 Amended and Restated DDA Page 3 FISCAL IMPACT: Approval of the Amended and Restated 2008 DDA will have no further fiscal impact upon the Agency. Account Budgeted Amount: NA Balance as of: March 31, 2010 Balance after approval of this item: NA RECOMMENDATION: That the Community Development Commission adopt the attached Resolution. Emil A. Marzullo, Interim Executive Director P UgadasC Dw Commieuonl 3010 5-10 Darya SR Cinmuq LLC-Ameaded and ReNIW DDA SR.dnc COMMISSION MEETING AGENDA Meeting Date: 04//05/22010 Agenda Item Number: p 1 RESOLUTION NO. COPY 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF 3 THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT 4 AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO 5 EXECUTE THE AMENDED AND RESTATED 2008 DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE AGENCY AND 6 MAYA SAN BERNARDINO CINEMAS, LLC (CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) 7 8 WHEREAS, the Community Development Commission of the City of San Bernardino (the 9 "Commission") is the governing board of the Redevelopment Agency of the City of San Bernardino 10 (the"Agency"); and 11 WHEREAS, on December 15, 2008, the Commission approved a 2008 Disposition and 12 Development Agreement ("Agreement") by and between the Agency and Maya Cinemas North 13 America, Inc., a Delaware Corporation (the "Developer"), and authorized the Interim Executive 14 Director of the Agency to execute the Agreement relating to the sale and development of the 20- 15 Plex Cinema building located at 450 North"E" Street and referred to as Assessor's Parcel Numbers: 16 0134-131-25, 26, 27 and 28 and 0134-121-24 (the "Property") and made certain findings thereto 17 related to the development of the Property; and 18 WHEREAS, on May 18, 2009, the Commission approved Amendment No. I to the 19 Agreement to extend the close of escrow deadline to October 30, 2009, due to unforeseen delays 20 caused by time constraints involved in obtaining financing from the U.S. Department of Housing 21 and Urban Development("HUD"); and 22 WHEREAS, unforeseen delays by HUD and the current uncertainties of the financial 23 markets have caused the Developer to miss the close of escrow deadline of October 30, 2009, and 24 has necessitated drafting the modifications as contained in the Amended and Restated 2008 25 Disposition and Development Agreement; and 26 WHEREAS, the Developer has taken this opportunity to request the assignment of its rights 27 under the Amended and Restated 2008 DDA to one of its subsidiaries, Maya San Bernardino 3 28 Cinemas, LLC,a limited liability company; and 1 P W,SB Cinema.LLC-A ,WW sM0. ,M DDA CDC Pem.Eac 1 WHEREAS, the action of amending a Disposition and Development Agreement does not F`••+ 2 meet the definition of a"Project' under Section 15378 of the California Environmental Quality Act 3 ("CEQA") which states that a 'Project' means the whole of an action, which has a potential for 4 resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect 5 physical change in the environment; and 6 WHEREAS, it is appropriate for the Commission to approve the Amended and Restated 7 2008 Disposition and Development Agreement. 8 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE 9 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS 10 FOLLOWS: 11 Section 1. The Commission hereby consents to the assignment of the rights under the 12 Amended and Restated 2008 Disposition and Development Agreement to Maya San Bernardino, 13 LLC, and approves the attached Amended and Restated 2008 Disposition and Development 14 Agreement in the form presented at the meeting at which this Resolution is adopted and as attached to i 15 this Resolution as Exhibit"A"and incorporated herein by reference. The Interim Executive Director of 16 the Agency is hereby authorized and directed to execute the Amended and Restated 2008 Disposition 17 and Development Agreement on behalf of the Agency, together with such technical and conforming 18 changes as may be recommended by the Executive Director of the Agency and approved by the 19 Agency Counsel. 20 Section 2. The approvals as contained in the Resolution shall expire as of 5:00 p.m. on 21 April 15, 2010, after which time Agency Staff shall have no further authorization to accept the 22 delivery of any documents or funds as approved and required by this Resolution, and the approvals 23 as contained in this Resolution shall automatically expire unless the following events shall have 24 occurred on or before said date and time: 25 (i) Maya San Bernardino Cinemas, LLC, and the Developer, as necessary, shall have 26 executed and delivered to the Chicago Title Company, as Escrow Holder, all !^ 27 required documents including specifically the Amended and Restated 2008 28 Disposition and Development Agreement and the Fund Control Agreement with 2 P:Ug<nduVt ewlutiomVtwoMiwu3010b1-05-IOMry58 Ciz LLC-AmmdNW He WDDA CDC Mo.doe I California Fund Control and amendments, as necessary, to the current escrow 2 instructions with the Escrow Holder, and 3 (ii) the Developer and/or Maya San Bernardino Cinemas, LLC, shall have deposited 4 to the Escrow Holder or to the Fund Control Agent, as shall be directed by 5 Agency Staff, an amount equal to $2,950,000 plus the $100,000 presently on 6 deposit with the Escrow Holder which shall satisfy in whole the $2,600,000 cash 7 equity contribution of Maya San Bernardino Cinemas, LLC, and in whole the 8 requirement of Maya San Bernardino Cinemas, LLC, for a $450,000 letter of 9 credit or other cash deposit as required by the Amended and Restated 2008 10 Disposition and Development Agreement. 11 In the event the items as required pursuant to this Resolution to be deposited with the Escrow 12 Holder as set forth above are not certified by the Escrow Holder and/or the Fund Control Agency as 13 being on deposit therewith on or before the date and time as specified above and complying with the 14 requirements of this Resolution, the authorizations as granted by this Resolution shall automatically 15 expire and Agency Staff is hereby directed to deliver a Notice of Termination to the Developer 16 stating that the Amended and Restated 2008 Disposition and Development Agreement is terminated 17 as of the date of said Notice of Termination. 18 Section 3. This Resolution shall take effect from and after its date of adoption by this 19 Commission. 20 21 22 23 24 25 26 27 28 //1 3 P wp as�jmlomu wjobs3OZOw 5.10 Ma se camK uc-nm ew aeavd ooArn aHO ao� RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF 1 THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING 2 THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO (-AGENCY-) TO 3 EXECUTE THE AMENDED AND RESTATED 2008 DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE AGENCY AND 4 MAYA SAN BERNARDINO CINEMAS, LLC (CENTRAL CITY NORTH 5 REDEVELOPMENT PROJECT AREA) 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community 7 Development Commission of the City of San Bernardino at a meeting 8 thereof,held on the day of 2010,by the following vote to wit: 9 Commission Members: Aves Nays Abstain Absent 10 MARQUEZ 11 DESJARDINS 12 BRINKER 13 SHORETT 14 KELLEY 15 JOHNSON 16 MC CAMMACK 17 18 Secretary 19 20 The foregoing Resolution is hereby approved this day of 12010. 21 22 Patrick J. Moms, Chairperson 23 Community Development Commission 24 of the City of San Bernardino 25 Approved as to Form: ,. 26 Lr 27 By: 28 Agency unsel 4 I EXHIBIT "A" Amended and Restated 2008 Disposition and Development Agreement 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ` 26 © 27 28 5 FIFTH STREET ti Lu cc m PhaselA r lil ftmd Parul] ZS Bi 0- (9) ParsW3 ..0 LE FOURTH STREET AMENDED AND RESTATED 2008 DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND MAYA SAN BERNARDINO CINEMAS,LLC FORMERLY MAYA CINEMAS NORTH AMERICA, INC. y. Dated as of April 5,2010 I r� TABLE OF CONTENTS Page Section 1.01. Purpose of Agreement....................................................................................... 1 Section1.02. The Project........................................................................................................ 1 Section 1.03. Parties to this Agreement..................................................................................2 Section1.04. Defined Terms ..................................................................................................2 Section 1.05. Restrictions Against Change in Ownership, Management and Control of the Developer and Assignment of Agreement........................................................8 Section 1.06. Benefit to Project Area......................................................................................8 Section 1.07. Limited Rights of Developer to Acquire Phase III Property............................8 Section 1.08. Certain Payments by Developer with Respect to HUD 108 Loan.................. 10 ARTICLE II DISPOSITION OF THE PROPERTY.................................................................... 11 Section 2.01. Purchase and Sale of the Property.................................................................. 11 Section 2.02. Phase I Property Deposit................................................................................. 11 Section 2.03. Opening and Closing of Escrow..................................................................... 12 Section 2.04. Escrow Instructions........................................................................................ 14 Section 2.05. Conveyance of Title to the Phase I Property.................................................. 14 p. Section 2.06. Additional Closing Obligations of the Agency............................................... 15 Section 2.07. Closing Obligations of the Developer............................................................. 16 Section 2.08. Inspections and Review.................................................................................. 17 Section 2.09. Due Diligence Investigation of the Phase I Property By the Developer......... 19 Section 2.10. Due Diligence Certificate............................................................................... 19 Section 2.11. Books and Records.........................................................................................20 Section 2.12. Condition of the Property and the Developer's Release.................................20 Section 2.13. Review and Approval of Condition of Title by the Deve loper.......................22 Section2.14. Survey. ............................................................................................................22 Section 2.15. Extension of Due Diligence Period.................................................................23 Section 2.16. Developer's Conditions Precedent to Close Escrow for the Phase I Property 23 Section 2.17. Agency's Conditions Precedent to Close Escrow for the Phase I Property....25 Section 2.18. Distribution of Documents to the Developer..................................................27 Section 2.19. Satisfaction of Conditions...............................................................................27 Section 2.20. RESERVED....................................................................................................28 Section 2.21. Prorations, Closing Costs, Possession............................................................28 Section 2.22. RESERVED....................................................................................................29 Section 2.23. Breach by the Developer of Article H Liquidated Damages Payable by the Developer to the Agency................................................................................30 Section 2.24. Representations and Warranties......................................................................30 Section 2.25. Damage, Destruction and Condemnation.......................................................35 Section 2.26. Purchase of the Phase III Property..................................................................36 P Unm W-Maya nWaftjMWaya TEeWe DA Dnfla,Fig s,Esaaw rate dasTDM%Vaya Amended and Re= DDA 9-29-10.MA-final do .. ARTICLE III DEVELOPMENT OF THE PROJECT................. ...............................................36 Section 3.01. Development of the Project by the Developer................................................36 Section 3.02. Obligations of the Agency..............................................................................42 Section 3.03. Taxes and Assessments...................................................................................44 Section 3.04. Change in Ownership,Management and Control of the Developer-- Assignment and Transfer................................................................................44 Section 3.05A. Developer Financing Plan...............................................................................46 Section 3.05B. Security Financing; Rights of Holders............................................................ 50 Section 3.06. Right of the Agency to Satisfy Other Liens on the Property after Conveyance ofTitle.............................................................................................................53 Section 3.07. Certificate of Completion...............................................................................53 Section 3.08. Purchase of the Phase III Property..................................................................54 Section 3.09. Federal Davis-Bacon Prevailing Wage Requirements.................................... 54 Section 3.10. California Prevailing Wage Requirements.....................................................55 ARTICLE IV USE OF THE SITE...................................................:............................................56 Section4.01. Uses................................................................................................................. 56 Section 4.02. Maintenance of the Property...........................................................................57 Section 4.03. Obligation to Refrain from Discrimination..................................................... 57 Section 4.04. Form of Nondiscrimination and Nonsegegation Clauses.............................. 57 ARTICLE V DEFAULTS,REMEDIES AND TERMINATION................................................59 Section 5.01. Defaults- General...........................................................................................59 Section5.02. Legal Actions..................................................................................................61 Section 5.03. Rights and Remedies are Cumulative.............................................................62 Section 5.04. Damages; Specific Performance.....................................................................62 Section5.05. RESERVED.............................................:......................................................62 Section 5.06. Agency Rights of Termination Following Close of Escrow...........................62 ARTICLE VI GENERAL PROVISIONS....................................................................................63 Section 6.01. Notices, Demands and Communications Between the Parties.......................63 Section 6.02. Conflict of Interest..........................................................................................64 Section 6.03. Warranty Against Payment of Consideration for Agreement.........................64 Section 6.04. Nonliability of Agency Officials and Employees...........................................64 Section 6.05. Enforced Delay: Extension of Time of Performance......................................65 Section 6.06. Inspection of Books and Records ...................................................................65 Section6.07. Approvals........................................................................................................66 Section 6.08. Real Estate Commission............................................................. 66 Section 6.09. Indemnification...............................................................................................66 Section 6.10. Release of the Developer from Liability.........................................................67 Section 6.11. Attorneys' Fees...............................................................................................67 Section6.12. Effect...............................................................................................................67 P:�Cineou5ur-ALp Theua ProjemV.Lye YhnrtADDADMaFinela,Fwov MnMdo MDAIW.,A eM end Re DDA)-39-]0MA-fin d= AMENDED AND RESTATED 2008 DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND MAYA SAN BERNARDINO CINEMAS,LLC THIS AMENDED AND RESTATED 2008 DISPOSITION AND DEVELOPMENT AGREEMENT (the "Amended and Restated 2008 Agreement') was initially entered into as of December 15, 2008 (the "Effective Date"), was amended pursuant to Amendment No. 1 dated June 22, 2009(the "Amendment No. I"), and is further amended and restated as of April 5, 2010 by this Amended and Restated 2008 Agreement (the original 2008 Agreement, the Amendment No. 1 and this Amended and Restated 2008 Agreement are collectively referred to herein as the "Agreement'), by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic (the "Agency") and MAYA SAN BERNARDINO CINEMAS, LLC, a California limited liability company (the "Developer"), as the Agency approved successor in interest and assignee of MAYA CINEMAS NORTH AMERICA, INC.,a Delaware corporation (the"Initial Developer"), as the party to the Amended and Restated 2008 Agreement. The Agency and the Developer hereby agree as follows: Section 1.01. Purpose of Agreement. The purpose of this Agreement is to implement the Redevelopment Plan by providing for: (i) the purchase and redevelopment by the Developer of the Phase I Property (as defined below) in accordance with and pursuant to this Agreement, (ii) to grant to the Developer, if the Developer is not in default under this Agreement,the right to purchase all or any part of the Phase II Property, subject to the terms, covenants and conditions of Section 3.02(e) and of Section 3.02(f), and (iii) to grant to the Developer, if the Developer is not in default under this Agreement, the right to acquire through the subsequent purchase and redevelopment by the Developer of the Phase III Property (as defined below) in accordance with and pursuant to any such subsequent disposition and development agreement or agreements all as further provided in Section 1.07 hereof. As of the Effective Date of this Agreement, the Property was and continues to be owned by the Agency and shall be conveyed by the Agency to the Developer subject to the terms, covenants and conditions of this Agreement. The redevelopment of the Property pursuant to this Agreement is in the vital and best interests of the City and of the health, safety and welfare of its residents, and is in accordance with the public purposes and provisions of applicable state and local laws. The Agency has determined that the development and the use of the Property contemplated by this Agreement are consistent with the Redevelopment Plan for the Project Area(as defined below). Section 1.02. The Proiect. Prior to or promptly following the conveyance by the Agency to the Developer of the Phase I Property, the Developer shall promptly commence and complete the construction, development, installation and completion of the Phase I Property Improvements at, on or in connection with the Phase I Property. PTine W-MMTheazd PmjedNhy+The DADM Rmis,E aw MwMEonW&Ways AnnaEeileMRecmetl DDA1-2AMMA-fim4= I ARTICLE VII ENTIRE AGREEMENT; COUNTERPARTS;NO MERGER WITH AGENCY GRANT DEED; WAIVERS AND AMENDMENTS.................67 Section 7.01. Entire Agreement; Counterparts.....................................................................67 Section 7.02. No Merger; Waivers and Amendments..........................................................68 ARTICLE VIII TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION............................................................................................68 Section 8.01. Execution and Recordation............................................................................. 68 EXHIBIT"A-1" - PHASE I PROPERTY DESCRIPTION EXHIBIT"A-2" - PHASE IA PROPERTY DESCRIPTION EXHIBIT"A-3" - PHASE II PROPERTY DESCRIPTION EXHIBIT"A-4" - PHASE III PROPERTY DESCRIPTION EXHIBIT`B" - BUDGET EXHIBIT"C" - SCOPE OF DEVELOPMENT EXHIBIT"D" - SCHEDULE OF PERFORMANCE EXHIBIT"E" - AGENCY GRANT DEED EXHIBIT"F" - CERTIFICATE OF COMPLETION EXHIBIT"G" - NOTICE OF AGREEMENT EXHIBIT"H" - LOAN COVENANT AGREEMENT EXHIBIT"I" - PARKING AGREEMENT P\Cinem6tm-NaysI WuPmjn MaAnea¢MDADrafts,EWS,Ex wrclasul docilDDASN1aya AmenEM and R<smed DDA 89-10.EDA-(vl Eocs Section 1.03. Parties to this Anreement. (a) The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California (Health and Safety Code Section 33020, et seq.). The principal office of the Agency is located at 201 North a`B" Street, Suite 301, San Bernardino, California 92401. (b) The Developer is a California limited liability company. The principal office and mailing address of the Developer for purposes of this Agreement is as set forth below, and notice shall be sufficient when served upon the notice party whether or not a copy is similarly served upon any other person: To the Developer: Maya San Bernardino Cinemas,LLC Attn.: Moctesuma Esparza, Chief Executive Officer 1201 West 5a' Street, Suite T-210 Los Angeles, California 90017 Telephone: (213) 542-4420 with a copy to: Maya Entertainment Group, Inc. Atm.: Jose Martinez, Jr., General Counsel 1201 West 5th Street, Suite T-210 Los Angeles, California 90017 Telephone: (213) 542-4420 (c) The City of San Bernardino is not a party to this Agreement and shall have no obligations pursuant to this Agreement. Section 1.04. Defined Terms. In addition to the usage of certain terms which have defined meaning as set forth in this Agreement certain other words and phrases are used in this Agreement to refer to the following unless the particular context of usage of a word or phrase may otherwise require: "Agency" means and refers to the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic. "Agency Loans" means and refers to the following loans made by the Agency to the Developer pursuant to this Agreement: (1) Agency Loan made by the Agency to the Developer in the amount of$537,153.50,and(ii)Agency Loan made by the Agency to the Developer in the amount of $164,197.10. The Agency Loans are evidenced and secured by the Agency Loan Documents. V P.�inm w-Mapr uu ProlewN yanr DADrag;Fwl E, wrdwv da ZDASNLaAmendedand Raw DDA3-29]1 DA-final.d 2 "Agency Loan Documents" means and refers to the following: (i)the promissory note in the amount of$537,153.50, dated as of the Close of Escrow, made by the Developer in favor of the Agency and/or the subordinate deed of trust recorded encumbering the Phase I Property to secure the obligations of said promissory note, as required by Section 1.08(a), and as recorded in the official records of the County Recorder's Office for the County of San Bernardino, State of California, (ii) the promissory note in the amount of $164,197.10, dated as of the Close of Escrow, made by the Developer in favor of the Agency and/or the subordinate deed of trust recorded encumbering the Phase I Property to secure the obligations of said promissory note, as required by Section 1.08(a), and as recorded in the official records of the County Recorder's Office for the County of San Bernardino, State of California, and (iii) such other instruments, documents and/or agreements evidencing, securing, guaranteeing or relating to the Agency Loans, or any one of them. "Agreement" means and refers to, collectively, the original 2008 Disposition and Development Agreement, dated December 15, 2008 (the "Original 2008 Agreement"), by and between the Agency and the Initial Developer, the Amendment No. 1, by and between the Agency and the Initial Developer, and this Amended and Restated 2008 Agreement, by and between the Agency and the Developer, as may be amended from time to time. The Agreement means and also includes all exhibits, schedules and riders attached thereto. "Budget" means and refers to the "Budget'' prepared by the Developer and approved by the Agency in connection with the purchase, acquisition, construction, development, installation and/or completion of the Phase I Property Improvements. The Budget is attached hereto as Exhibit aB"and is incorporated herein by this reference. "City" means and refers to the City of San Bernardino located in the County of San Bernardino and in the State of California. "CDE"means a duly organized entity treated as a domestic corporation or partnership for federal income tax purposes that: (i) has a primary mission of serving, or providing investment capital for, low-income communities or low-income persons, (ii) maintains accountability to residents of low-income communities through its representation on any governing board of the entity or any advisory board to the entity, and(iii) has been certified as a CDE by the CDFI Fund of the US Department of Treasury. "County" means and refers to the County of San Bernardino located in the State of California. "Developer" means and refers to Maya San Bernardino Cinemas, LLC, a California limited liability company, its permitted successors and permitted assigns, subject to the terms, covenants and conditions of this Agreement. The Developer is the successor-in-interest and assignee of Maya Cinemas North America, Inc., a California corporation. For the avoidance of doubt, "Developer" shall also mean any affiliated entity of Developer required in connection with a NMTC (as hereinafter defined)transe-tion. h..r PACimm m Mayas to Pml<nUfa;. T to DA Dft Finals,Ef wnlu., MDAaV ,AmeMW eM Rennes DDA 1.111 DA-11 dou 3 "Escrow" means and refers to the escrow created in connection with and relating to the Phase I Property. "Executive Director" means and refers to the "Executive Director" or to the "Interim Executive Director" who is then appointed and acting as the chief executive officer of the Agency and who is authorized to exercise all administrative and executive functions on behalf of the Agency and as may be further specifically authorized to act pursuant to this Agreement. "HUD 108 Loan" means and refers to the loan made by HUD in favor of the City which HUD 108 Loan is secured by a deed of trust(the"HUD Deed of Trust")encumbering the Phase I Property (but excluding the Phase IA Property) and a pledge of current and future CDBG funds of the City as required by HUD. Such pledge of CDBG funds is not released by the sale of the Phase I Property, assumption of the HUD 108 Loan, or any other action taken pursuant to this Agreement. The outstanding principal balance of the HUD 108 Loan as of the date of approval of this Agreement is $4,240,000. Any modification to the HUD 108 Loan or the undertaking of a New HUD Loan (as defined in Section 3.05A.), requires an independent action of the City of San Bernardino. The Mayor and Common Council of the City have approved the possible assumption of the existing HUD 108 Loan in accordance with the Developer financing plan as further provided in Section 3.05A. hereof. Conditions or covenants appearing herein concerning actions to be taken by the Agency with respect to the HUD 108 Loan and the New HUD Loan (as defined in Section 3.05A.) are in addition to and separate and apart from the actions of the City. The Developer is hereby placed on notice that it shall not act in reliance on any representations as may appear to be contained herein,or as made by any persons, whether or not a party to this Agreement, concerning whether the City will initiate an action for modification of the HUD 108 Loan or approval of a New HUD Loan (as defined in Section 3.05A.) or as to the outcome of such action as may be initiated. "Improvements"mean and refer to the Phase I Property Improvements. "Laws" mean and refer to all federal, state, municipal and local laws, statutes, codes, rules, regulations, ordinances and orders, now or hereafter existing, as amended from time to time. The Laws shall include, without limitation, the ADA and all applicable federal Davis- Bacon and State of California prevailing wage requirements as the same may be applicable. "License Agreement" means and refers to the License Agreement by and between the Developer and the Agency, dated as of February 1, 2010, wherein the Agency granted to the Developer, without limitation, from the date of such License Agreement with respect to the Phase I Property until the termination of the License Agreement, and as to the Phase III Property, as applicable, if deemed mutually approved by the Developer and the Executive Director of the Agency each at their sole and absolute discretion. "Loan Covenant Agreement"means and refers to that certain Loan Covenant Agreement in the form as attached hereto as Exhibit"H"and as further described in Section 3.05A. 1.. F 1Cinem6w-Maps Ww Pj tU pTh at DA FWm F rowrtlntM Eo DMW&ya AmeM DDA)-IAI0.FDA-6vl.EOv 4 "Notice of Agreement" means and refers to the Notice of Agreement, dated of even date of this Agreement, as executed and acknowledged by and-between the Agency and the Developer. The Notice of Agreement is attached hereto and incorporated herein by this reference as Exhibit "G." The Escrow Officer shall record the Notice of Agreement in the Official Records of the County Recorder's Office for the County of San Bernardino, State of California, on the Closing Date of the Escrow in connection with the Phase I Property. "Parking Agreement"means and refers to that certain parking agreement by and between the Developer and the Agency to be entered into as of the Close of Escrow in the form as attached hereto as Exhibit "I" and as further described in Sections 2.06(10) and 2.07(9) which shall be delivered to the Developer as of the Close of Escrow for the Phase I Property. "Permitted Lien Exceptions" shall mean: (i) the New HUD Loan, (ii) any New Market Tax Credit financing that is secured, in whole or in part, by a deed of trust encumbering the Phase I Property, (iii) the Agency Loan Documents, (iv) the Financing, (v) the Financing Loan Documents, (vi) the Construction Financing, (vii) the Permanent Financing, (viii) the Security Financing Interest and/or the exceptions to title identified in schedule`B"to the Phase I Property Preliminary Title Report excluding the deed of trust encumbering the HUD 108 Loan. The Permitted Lien Exceptions shall be subordinate to the deed of trust encumbering the Phase I Property to secure the obligations of the existing HUD 108 Loan. "Phase I Property" means and refers to that certain improved land located in the City of San Bernardino, County of San Bernardino, and State of California, Assessor Parcel Number 0134-121-24, as described in Exhibit "A-1" to this Agreement attached hereto and incorporated herein by this reference. The Phase I Property does not include the Phase IA and the Phase IA Property Improvements. "Phase I Property Deposit" means and refers to the deposit paid by the Developer to the Escrow Holder for the benefit of the Agency in connection with the Escrow for the Phase I Property, subject to the terms, covenants and conditions of this Agreement. The Phase I Property Deposit is in the amount of$100,000, receipt of which is hereby acknowledged by the Agency. "Phase I Property Due Diligence Certificate" means and refers to the Phase I Property Due Diligence Certificate to be provided by the Developer to the Agency in accordance with this Agreement. "Phase I Property Improvements" mean and refer any and all buildings, structures, improvements and/or fixtures, now or hereafter, existing or located on or at the Phase I Property. The Phase I Property Improvements include, without limitation, the following: (i) the remodeling and rebranding of the theater, (ii) the establishment of the I-Max theater, (iii) the removal and relocation of the ticket booth, (iv) the expansion of the entry area into a public access lobby, (v) the relocation of all concessions, (vi) the providing access to the Phase I Property in compliance with the Americans With Disabilities Act (the "ADA"), (vii) the modifications to the risers in each theater to assure conformity, (viii) the replacement of all seating, (ix) the installation of digital project and sound systems and (x) payment for and `- acquisition of all licensing rights for the IMAX name within a franchise area and the installation of an IMAX movie theater screen, renovation of one (1) larger theater within the Phase I P1Cinem6ty-MA+Th PjwV ys Tha DADr %Fims,Fsvw_t dooWAS ya MWeEandA WDDA3-2810. A-fl 5 Property and the acquisition and installation of all additional projection requirement, sound equipment and other appurtenant facilities and equipment required to obtain and to thereafter maintain all licensing for the showing of IMAX movie format utilizing the IMAX branding at the theater comprising the Phase I Property. The Phase I Property Improvements must be constructed, developed, installed and completed by November 15, 2010, and the IMAX theater must be completed and operation by April 1, 2011, or the date of title transfer for the Phase III Property if such title transfer is scheduled to occur prior to April 1, 2011, unless such date is extended by the Agency in its sole and absolute discretion; provided, however, that notwithstanding said stated date the Developer shall have at least one hundred twenty (120) calendar days from the Close of Escrow of the Phase I Property to obtain all required construction and building permits and to complete all such construction activities. "Phase I Property Preliminary Title Report" means and refers to the preliminary report prepared by the Title Company in connection with the Phase I Property. The Phase I Property Preliminary Title Report shall be delivered by the Title Company to the Developer in accordance with this Agreement and shall list, describe and disclose all existing title exceptions, including, without limitation, all liens, encumbrances, deeds of trust, mortgages, leases, mechanics' liens, memorandums, covenants, conditions, restrictions and all other matters affecting, encumbering and/or relating to the Phase I Property, as amended from time to tune. ``Phase I Property Project" means and refers to the construction, development, installation and completion by the Developer of the Phase I Property Improvements, subject to the terms, covenants and conditions of this Agreement. "Phase I Property Purchase Price" means and refers to the purchase price paid by the Developer to the Agency in connection with the sale by the Agency and the purchase by the Developer of the Phase I Property, subject to the terms, covenants and conditions of this Agreement. The Phase I Property Purchase Price is $4,600,000 which shall be paid upon the Close of Escrow either (i) in cash, (ii)pursuant to an assumption of the current principal balance of the exiting HUD 108 Loan equal to $4,240,000 plus either cash equal to $537,153.50 or the execution of a promissory note upon the Close of Escrow as further provided in Section 2.16(8-} hereof secured by a subordinate deed of trust upon the Phase I Property plus either cash equal to $164,197.10 or the execution of a promissory note upon the Close of Escrow as further provided in Section 2.16(8) hereof secured by a subordinate deed of trust upon the Phase I Property, or (iii) the Developer providing for the defeasance of the existing HUD 108 Loan under such terms and conditions as are determined by HUD. "Phase IA Property" means and refers to the land adjacent to the theater on the Phase I Property on which the Agency shall develop the Phase IA Property Improvements as shall hereafter be approved by the Agency. The Phase IA Property is located in the City of San Bernardino, County of San Bernardino, State of California, as described on Exhibit "A-2" attached hereto and incorporated herein by this reference. The Developer shall have no right to purchase the Phase IA Property from the Agency under this Agreement. P:\GcmaS�u Maya Theamr RojecMLya ThenWDDADnfla,Fiuls,Bmw rehtM tlocs�DOASULya Am<nded aM Ranatl DOA}yy.t0.EDA-fi�ultloa 6 "Phase IA Property Improvements" mean and refer to a mutually agreed upon public feature comprised of a public seating area or amphitheater plus an additional water feature to the existing installed fountains owned by the Agency plus some form of hardscape to be funded and constructed and installed by the Agency at its sole design, cost and expense. "Phase II Property" means and refers to that certain unimproved land located in the City of San Bernardino, County of San Bernardino, and State of California, as described in Exhibit "A-Y to this Agreement attached hereto and incorporated herein by this reference for which the Developer shall have no development rights unless the Agency seeks to develop such Phase II Property through another private developer in which instance the Developer may submit a proposal for the development of the Phase II Property consistent with the Agency plans for the development thereof. "Phase III Property" means and refers to that certain unimproved land located in the City of San Bernardino, County of San Bernardino, and State of California, as described in Exhibit "A-4"to this Agreement attached hereto and incorporated herein by this reference. "Project" means and refers to the Phase I Property Project to be undertaken by the Developer pursuant to this Agreement and within the time requirements as set forth in this Agreement with the time period for the Close of Escrow in accordance with Section 2.03(e). "Project Area" means and refers to the Central City North Redevelopment Project Area in the City of San Bernardino,County of San Bernardino, State of California. "Property"means and refers to the Phase I Property which is the only real property that is the subject of the Agreement and for which the Developer has the right to acquire title thereto; provided, however: (i) that upon compliance with the requirements set forth in Section 1.07 the Developer shall have the limited right to acquire title to the Phase III Property pursuant to this Agreement,provided the Developer is not in default under the Agreement,and(ii)the Developer shall have the right to purchase all or a part of the Phase II Property, subject to the terms, covenants and conditions of Section 3.02(e) and of Section 3.02(f). "Redevelopment Plan" means and refers to the Redevelopment Plan for the Central City North Redevelopment Project Area of the Agency. "Schedule of Performance" means and refers to the Schedule of Performance on which the Agency and the Developer shall describe in detail the schedule of performance in connection with the construction, development, installation and completion of the Phase I Property Project. The Schedule of Performance is attached hereto and incorporated herein by this reference as Exhibit"D." "Scope of Development" means and refers to the construction, development, installation and completion by the Developer of the Phase I Property Improvements. The Scope of Development is described in Exhibit "C"to this Agreement which Exhibit is attached hereto and incorporated herein by this reference. P\Cinenna5ter-Map Th wPMWWayaT td DDA DM FinalsF w related d TDA p Amended and Reaned DDA 1-29-10.EDA-final.d«. 7 f° "State"means and refers to the State of California. Section 1.05. Restrictions Against Chance in Ownership, Management and Control of the Developer and Assignment of Agreement. The qualifications and identity of the Developer are of particular concern to the Agency. It is because of those qualifications and identity that the Agency has entered into this Agreement with the Developer. Prior to the issuance of a Certificate of Completion as set forth in Section 3.07, no voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement. The Developer shall not, except as set forth above or as authorized in Section 3.04 hereof for a Transfer as a Permitted Transfer, assign all or any part of this Agreement or any rights hereunder prior to the issuance of the Certificate of Completion with respect to the Project, or any part thereof, without the prior written approval of the Interim Executive Director of the Agency,which approval shall not be unreasonably withheld,delayed or conditioned. The Developer shall promptly notify the Agency in writing of any and all changes whatsoever in the identity of the business entities and individuals either comprising or in control of the Developer, as well as any and all changes in the interest or the degree of control of the Developer by any such party, of which information the Developer or any of its officers have been notified or may otherwise have knowledge or information. This Agreement may be terminated by the Agency prior to the Close of the Escrow as set forth in Section 2.03 if there is any significant or material change, whether voluntary or involuntary, in membership, ownership, management or control of the Developer (other than such changes occasioned by the death or incapacity of any individual) that has not been approved by the Agency prior to the time of such change or the Agency may seek other appropriate relief in the event that at any time following the Close of Escrow and prior to issuance of the Certificate of Completion such a change in the ownership, or control of the Developer occurs with respect to the Phase I Property pursuant to this Agreement; provided,however, that(i)the Agency shall first notify the Developer in writing of its intention to terminate this Agreement or to exercise any other remedy, and (ii) the Developer shall have twenty (20) calendar days following receipt of such written notice to commence and thereafter diligently and continuously proceed with the cure of the default of the Developer and submit evidence of the initiation of satisfactory completion of such cure to the Agency in a form and substance deemed satisfactory to the Agency,in its reasonable discretion. Section 1.06. Benefit to Project Area. The Agency has determined that the conveyance by the Agency to the Developer of the Property, or any portion thereof, will materially assist in the elimination of blight and the implementation of the Redevelopment Plan for the Project Area. Section 1.07. Limited Rights of Developer to Acquire Phase III Property. (a) From and after the date that the Developer has (i) acquired the fee title to the Phase I Property, (ii) timely completed the construction and installation of the Phase I Property Improvements, (iii) received a final certificate of occupancy (the "Final C/O") from the City for the entire rehabilitation and renovation of the Phase I Property and the completion of the Phase I Property Improvements, (iv) completed the construction of the IMAX theater and such IMAX theater is operational not later than April 1, 2011, or such earlier date as may be required for any P:ICimmsSU-ALntt¢m Fmlad yTlieatWDDADfaFi Finals,E—w rdiartd dmWaksMaya AmeddW and P Mnd DDA 33A10-EDA-fwldon 8 scheduled transfer of the Phase III Property if prior to April 1,2011, and(v)has provided written notice to the Agency on or before October 1, 2010, of the election by the Developer to purchase the Phase III Property, and provided that there is at such time no pending default by the Developer pursuant to any term or provision of this Agreement, the Developer shall have the right to acquire the Phase III Property pursuant to this Agreement for a cash purchase price equal to twelve dollars ($12.00) per square foot, as provided for in the Fair Market Value Appraisal, dated August 20, 2008, prepared by Authur Gimmy International in favor of the Agency, or the Fair Market Value appraisal as of the date the Developer executes a _mutually acceptable disposition and development agreement with the Agency for the purchase and the development by the Developer of the Phase III Property, whichever is less. In the event the Developer has complied with all provisions of this Section 1.07(a), the Developer shall have the right for ninety (90) days after the compliance with the provisions of the first sentence of this subsection (a) to enter into a mutually acceptable disposition and development agreement with the Agency for the purchase and for the development by the Developer of the Phase III Property. Nothing contained herein shall unconditionally commit the governing board of the Agency or the Mayor and Common Council to approve any such disposition and development agreement presented for consideration and approval. At such time as the governing board of the Agency has rejected the proposal and the form of the disposition and development agreement from the Developer for the purchase and for the development by the Developer of the Phase III Property, the Developer shall have no further rights pursuant to this Section 1.07(a) or this Agreement with respect to the Phase III Property. The rights afforded to the Developer pursuant to this Section 1.07(a) shall terminate and be of no further force and effect after either (i) October 1, 2010, if the Developer has not timely provided notice to the Agency as set forth above, or(ii) April 1, 2011, if escrow for the purchase of the Phase III Property has not closed due to the inability of the Developer to timely deposit the purchase price for the Phase III Property, the inability of the Developer to comply with the conditions set forth in subsection (c) below, if the Developer refuses to accept the condition of title to the Phase III Property or if the Developer is in default under the Agreement. (b) RESERVED (c) Prior to any Close of Escrow for the Phase III Property, the Developer shall provide architectural plans illustrating exterior treatments for the buildings to be constructed on the Phase III Property for which such buildings shall not exceed 15,000 square feet in gross building square footage. The Agency and the Developer shall jointly approve all site design and architectural controls for any development of the Phase III Property all of which shall be subject to the reasonable approval of the Executive Director of the Agency. The Close of Escrow for the Phase III Property shall occur on or before April 1, 2011, provided that the Developer has obtained(i)building permits issued by the City of San Bernardino for the proposed development, (ii) a bona fide,valid and enforceable financing commitment evidenced by a written commitment executed by a commercial lender or by an investor reasonably acceptable to the Agency, and(iii) one or more bona fide, valid, and executed leases from one or more tenants for the lease of at least forty percent(40%) of the gross square footage of the building area to be constructed on the Phase III Property with each such tenant being subject to the reasonable approval of the Executive Director of the Agency, said approval not to be withheld, delayed or conditioned. Such tenants shall be subject to disapproval by the Executive Director for stated reasons as shall PTimmaSty-Mayonnto PrgwWaya ILOtWDDAD kPimis.P ow rdet E sMDMM ya Amm a Retlatad DDA33210.mA-fiiul 9 .. be provided in writing to the Developer. The Agency shall have no further liability or responsibility with respect to any failure of the Close of Escrow for the Phase III Property in the event the Developer fails to comply with any of the conditions contained in the this Section 1.07 or in the event the Developer is unable to obtain the approvals and consents of the Executive Director of the Agency as required by this Section 1.07. (d) The improvements to the Phase III Property shall be completed within two (2) year from and after the date of the Close of Escrow for the Phase I Property. Section 1.08. Certain Payments by Developer with Respect to HUD 108 Loan. (a) The Developer agrees that in consideration of the extension of the time period for the Close of Escrow for the Phase I Property as evidenced by Amendment No. 1 to the 2008 Agreement and the approval and execution of this Amended and Restated 2008 Agreement by the Agency, the Developer shall reimburse the Agency for the August 1, 2009, principal and interest payment as remitted to HUD on the HUD 108 Loan in an amount equal to $537,153.50 which shall bear interest at five percent(5D/o)per annum from and after August 1,2009 until paid in full, and shall have a final maturity date of June 30, 2013, and shall be evidenced by a promissory note secured by a subordinate deed of trust upon the Phase I Property from and after the Close of Escrow. Upon the maturity date of said promissory note, all principal and accrued and unpaid interest shall be payable to the Agency except to the extent prior to June 30,2013,the Developer has undertaken the Parking Lot Construction as defined and further provided in Section 2.16(8) hereof and is entitled to a credit against the principal and interest repayment amounts. (b) The Developer agrees that the interest payment due and payable on the HUD 108 Loan on February 1, 2010, will be remitted by the Agency to HUD in the approximate amount of $164,197.10, will be evidenced by a promissory note which shall bear interest at five percent (5%) per annum from and after February 1, 2010 until paid in full, will be secured by a subordinate deed of trust encumbering the Phase I Property, and will have a maturity date of one hundred and twenty (120) days after the Close of Escrow or the date that the Developer completes the Phase I Property Improvements, whichever occurs first. . The Developer shall have no right to exercise the election to acquire the Phase III Property in the event such February 1, 2010, interest payment has not been fully reimbursed to the Agency or alternative arrangements for the repayment thereof have not been mutually agreed in writing between the Developer and the Agency. (c) The Developer agrees to remit the principal and interest payment due and payable on the HUD 108 Loan as of August 1, 2010, and semiannually thereafter as to interest and annually thereafter as to principal through the maturity date of the HUD 108 Loan or until the prior defeasance or repayment in whole of the HUD 108 Loan by the Developer. In the event the escrow has not closed prior to August 1, 2010,and the Developer has not timely remitted the full amount of the August 1, 2010, payment to HUD on the HUD 108 Loan, the Developer shall be in default pursuant to this Agreement and shall only have the right to cure such defai 't prior to j� the Agency delivery of a notice of termination as to this Agreement but in no event le . than ten �✓ (10) calendar days. Upon such default by the Developer and the delivery by the Ager c of said p�m4w-W,Theurer PnjeaWary the DA Dnf.Fii kEs wnl d s1DDAsUf Am ded W ile;: LA DOA 3-29.10-EDA-fiw doa 10 notice of termination, the Escrow shall be cancelled, this Agreement shall then be deemed to be terminated and the Developer shall have no further rights pursuant to this Agreement. ARTICLE II DISPOSITION OF THE PROPERTY Section 2.01. Purchase and Sale of the Property. (a) Purchase and Sale of the Property. Subject to the terms, covenants, conditions and provisions of this Agreement, the Agency agrees to sell to the Developer and the Developer agrees to purchase from the Agency the Phase I Property at and for the Phase I Property Purchase Price. The Phase I Property Purchase Price shall be deemed to have been paid by the Developer to the Agency upon either (i) the HUD Loan Assumption (as hereinafter defined) by the Developer with the approval of HUD and execution of the $537,153.50 principal amount of the promissory note as further provided in Section 2.16(8) together with a subordinate deed of trust encumbering the Phase I Property to secure such repayment, and (A) the execution of the $164,197.10 principal amount of the promissory note as further provided in Section 2.16(8) together with a subordinate deed of trust encumbering the Phase I Property to secure such repayment, and (B) the payment of the principal and interest due thereon as of August 1, 2010, (ii) the repayment of the existing $4,240,000 principal balance of the presently outstanding HUD 108 Loan with the proceeds of any other Financing plus the amounts due and payable pursuant to +— (i)(A) and (B) immediately preceding, or(iii) regardless of whether(i) or(ii) as immediately set forth are applicable, the additional compliance with all other requirements as set forth in Section 3.05A. hereof. (b) Phase I Property Purchase Price. The Phase I Property Purchase Price which the Agency agrees to accept from the Developer and which the Developer agrees to pay and to deliver to the Agency for the purchase by the Developer of the Phase I Property is $4,600,000. The Phase I Property Purchase Price shall be delivered to the Escrow Officer on behalf of the Agency. Section 2.02. Phase I Property Deposit. (a) The Agency acknowledges receipt of the Phase I Property Deposit from Developer which has been delivered by the Agency to the Escrow Holder(as hereinafter defined) the Phase I Property Deposit. Upon receipt of the Phase I Property Deposit together with a fully executed copy of this Agreement, the Escrow Holder has caused the Escrow to be opened as provided in Section 2.03, and the Escrow Holder has placed the Phase I Property Deposit into an interest-bearing escrow account with the interest thereon to accrue to the benefit of the Developer. At the Close of Escrow (as defined below) in connection with the Phase I Property, the Phase I Property Deposit shall be applied as a credit to the Phase I Property Purchase Price. (b) The Phase I Property Deposit (less an amount equal to the customary and reasonable escrow cancellation charges of the Escrow Holder) shall be returned to the Developer in the event that: P:tCinenu5tw-Wq I an PMUtVA3+nwt DA DN Fimis E—ow MMM dmsVD&Ways A endM end Reseed DDA 3-39-]0.MA.fi da 11 �. (i) the Agency or the Developer terminates this Agreement pursuant to Section 2.03(b); or (ii) the Developer does not deliver its Phase I Property Due Diligence Certificate to the Escrow Holder pursuant to Section 2.03(b) and this Agreement is terminated; or (iii) the conditions precedent to the obligation of the Developer to proceed with the Close of Escrow described in Section 2.16 are not satisfied by the Agency or other entities, as appropriate (unless satisfaction has been waived by the Developer), and this Agreement is terminated; or (iv) the Phase I Property is materially damaged prior to the Close of Escrow (as defined below), or an action of eminent domain is commenced by a governmental entity with respect to the Phase I Property prior to the Close of Escrow, and the Developer elects to terminate this Agreement pursuant to Section 2.25. Section 2.03. Opening and Closine of Escrow. (a) The transfer and sale of the Phase I Property shall take place through the Escrow to be administered by Chicago Title Insurance Company or such other escrow or title insurance company mutually agreed upon by the Developer and the Agency (the "Escrow Holder"). The Escrow shall be deemed open upon the receipt by the Escrow Holder of a fully executed copy of this Agreement and the Phase I Property Deposit. The Escrow Holder shall promptly confirm to the parties the escrow number and the title insurance order number assigned to the Escrow. (b) Subject to any extensions of time pursuant to Section 2.15 hereof, in the event that the Developer has not delivered its Phase I Property Due Diligence Certificate to the Agency and the Escrow Holder on or before April 15, 2010, regardless of the reason, then in such event this Agreement shall terminate upon written notice to the Escrow Holder from either the Agency or the Developer, whereupon the Phase I Property Deposit shall be returned by the Escrow Holder to the Developer (less an amount equal to the customary and reasonable escrow cancellation charges payable to the Escrow Holder) without further or separate instruction to the Escrow Holder, and the parties shall each be relieved and discharged from all further responsibility or liability under this Agreement. (c) Provided that the Developer has delivered the Phase I Property Due Diligence Certificate within the period of time authorized in Section 2.10, then the Closing Date of the Escrow shall occur within twenty (20) calendar days thereafter, unless the Close of Escrow is extended (a)pursuant to Section 2.15 or (b)to a date that is more than twenty(20) calendar days thereafter by mutual agreement of the Agency and the Developer. i (d) The words"Close of Escrow", "Closing Date" and"Closing"shall mean and refer ' to the date when: (i) the Escrow Holder is in receipt of the Escrow documents from the parties, (ii) the Escrow Holder is in a position to comply with the final written escrow closing P�Cinema5ty-ALri ThwaF4gaaV.fari SMatWDDADra(b,Fml;E'aaw«latetl docz�DDASNfari AmadW aM R<sumd DOA 139-10.IDA-fwldoa 12 instructions from the parties, (iii) the Escrow Holder is in a position to cause the Agency Grant Deed in connection with the Phase I Property to be recorded in the official records of the County, (iv) the Escrow Holder is in a position in connection with the Escrow relating to the Phase I Property to record the Notice of Agreement in the Official Records of the County Recorder's Office for the County of San Bernardino, State of California, (v)the Escrow Holder has received all required monies and all instruments, agreements, documents, certificates and estoppels, as executed and acknowledged, in recordable form where applicable, to Close the Escrow, (vi) the Escrow Holder has received an executed seller and buyer's closing statement from the Developer and from the Agency, and (vii)the Escrow Holder is in a position to deliver to the Developer the Phase I Property Title Policy. (e) Notwithstanding anything else contained in this Agreement and in any Exhibit to the contrary, the Close of Escrow for the transfer of the Phase 1 Property from the Agency to the Developer must occur not later than June 30, 2010, except as provided in the following sentence. The Developer shall have the right to extend the Close of Escrow for the Phase I Property to a date not later than September 30, 2010, if prior to June 30, 2010, the Developer completes either of the following actions and provides timely notice to the Agency on or prior to June 30, 2010, stating and providing written evidence or other substantial verification as approved in writing by the Executive Director that one of the required following actions has been accomplished as of or prior to the date of such notice: (i) the Developer executes the $164,197.10 promissory note and the subordinate deed of trust encumbering the Phase I Property, or pays cash to the Escrow Holder in the amount of$164,197.10, as required by Section 1.08(b) and Section 2.16(8), and either (1) the Developer has deposited the amount of the Developer equity contribution of$2,600,000 (i.e.,an additional $2,500,000 less any funds expended by the Developer pursuant to the Project budget which the Developer has documented and submitted evidence of said expenditures to the Agency as reasonably approved by the Agency together with the $100,000 currently on deposit with the Escrow Holder shall constitute the full amount of the Developer equity contribution) with the Escrow Holder, executes the $537,153.50 promissory note and subordinate deed of trust, or pays cash to the Escrow Holder in the amount of$537,153.50, as required by Section 1.08(a) and Section 2.16(8) and deposits the additional cash or a letter of credit equal to $450,000 with the Escrow Holder to be subsequently delivered to an account at Far East National Bank or an account designated by Developer; or (2) the Developer has expended an amount equal at least $2,500,000 on third party expenditures related to the physical structure of the. Phase. I Property including any other on-site improvements or other off-site public improvements subject to reasonable verification by the Executive Director of the Agency and all applicable prevailing wage requirements were met as to the expendit .c of said funds. PrioemSw-MaHr�va gojeGV.fy,l' DDADMSFiW,.Ewow N,tM dac,1DDA,NLp AmeoENWReRatMDDA l-39-10.FDA-6nY.dacx 13 In the event the Close of Escrow has not occurred by the applicable date for the Close of Escrow, the Agency shall be entitled to exercise all rights and remedies as set forth in this Agreement and in Article V subject to notice of default from the Agency to the Developer without any right to cure such default by the Developer after said date. Section 2.04. Escrow Instructions. This Agreement also constitutes escrow instructions of the parties to the Escrow Holder. Additionally, the Developer and the Agency each agree to execute the customary supplemental escrow instructions of the Escrow Holder in the form provided by the Escrow Holder to its clients in real property escrow transactions administered by it. In the event of a conflict between the additional terms of such customary supplemental escrow instructions of the Escrow Holder and the provisions of this Agreement, this Agreement shall supersede and be controlling. Upon any termination of this Agreement or cancellation of the Escrow, the Developer shall be solely responsible for the payment of the escrow cancellation costs of the Escrow Holder, the Escrow Holder shall forthwith return all monies (as provided in this Agreement)and documents, less only the Escrow Holder's customary and reasonable escrow cancellation fees and expenses, as set forth herein. Section 2.05. Conveyance of Title to the Phase I Prouertv. On or before 12:00 noon on the business day preceding the Closing Date for the Escrow the Agency shall deliver to the Escrow Holder a grant deed in the form attached hereto as Exhibit "E" (the "Agency Grant Deed")duly executed and acknowledged by the Agency, which Agency Grant Deed shall convey all of its merchantable lien free right, title and interest of the Agency in the Phase I Property to the Developer. The Escrow Holder shall be instructed to record the Agency Grant Deed in the Official Records of San Bernardino County, State of California, if and when the Escrow Holder holds the various instruments of the parties as set forth herein and can obtain for the Developer a CLTA owner's coverage policy of title insurance ("Title Policy") issued by Chicago Title Insurance Company or such other title insurance company mutually agreed upon by the parties ("Title Company") with liability in an amount equal to the Phase I Property Purchase Price for the Phase I Property Title Policy, together with such endorsements to the policy as may be reasonably requested by the Developer, insuring that the title to the Phase I Property is vested in fee title in the Developer and is free and clear of options, rights of first refusal or other purchase rights, leases or other possessory interests and monetary liens and/or encumbrances and subject only to: (1) non-delinquent real property taxes; (2) non-monetary title exceptions approved by the Developer pursuant to Section 2.13 below; (3) applicable provisions encumbering or affecting the parcel map or subdivision map for the Phase I Property; (4) the effect of any conditions imposed by the City as part of the development plan approvals for the Phase I Property Project, or any part thereof, accepted by the Developer in its sole discretion; P:�Cioem5w M1L}�'IbeatagyedULYiheveMUA Dnfl,,Fivl;Fxmw NneE daaDDAMLp AmmEW M ReaetM DDA l-Z?10.IDMfiiul.EOn 14 (5) the provisions of the Agency Grant Deed; (6) the applicable provisions of this Agreement and the Notice of Agreement; (7) the assumed existing HUD 108 Loan and/or the New HUD Loan, as applicable, or any other deed of trust, mortgage or security interest encumbering the Phase I Property; (8) such other title exceptions, if any, resulting from documents being recorded or delivered through Escrow; (9) the effect of the Redevelopment Plan for the Project Area. Section 2.06. Additional Closing Obligations of the Agency. On or before 12:00 noon on the business day preceding the Closing Date for the Escrow (and unless indicated otherwise), the Agency shall deliver to the Escrow Holder (unless indicated to be delivered directly to the Developer)copies of the following documents and other items: (1) a certificate of non-foreign status executed by the Agency, in the customary form provided by the Escrow Holder, and a California Franchise Tax Board Form 590-RE executed by the Agency; (2) all soils, seismic, geologic, drainage, and environmental reports, and surveys,with respect to the Phase I Property, if any, which the Agency has in its possession and/or control to the extent that originals of such items have not been delivered previously by the Agency to the Developer pursuant to Section 2.08 below; (3) two (2) duplicate original copies of the Closing Statement described in Section 2.21,duly executed by the Agency; (4) evidence of the existence, organization and authority of the Agency and of the authority of persons executing documents on behalf of the Agency reasonably satisfactory to the Escrow Holder and Title Company; (5) any other documents, instruments, funds and records required to be delivered to the Developer under the terms of this Agreement which have not been previously delivered; (6) one (1) original of the Notice of Agreement, as executed and acknowledged by the Agency (in connection with the Escrow relating to the Phase I Property); (7) one (1) original of the Scope of Development and one (1) original of the Schedule of Performance, as executed by the Agency and by the W Developer; P:1Cineme5w Meye 1laety ProleRrJ-0sy0 Th. DA Dreg;Finals.Ekrow da,ed do[ DAx Maya AmeMN sM R ,M DDA 3-M]1 MA-fi�.Erca 15 (8) one (1)original of the Agency Grant Deed; as executed and notarized by the Agency,in connection with the Phase I Property; (9) one(1)original of the License Agreement, in connection with Escrow relating to the Phase I Property; and (10) one (1) original executed copy of the (i) Loan Covenant Agreement upon either an assumption of the existing HUD 108 Loan and/or the origination of a New HUD Loan, as applicable,and(ii)the Parking Agreement. Section 2.07. Closing Obligations of the Developer. On or before 12:00 noon on the business day preceding the Closing Date for the Escrow, the Developer shall deliver to the Escrow Holder copies of the following documents and other items: (1) an acknowledgment and acceptance of the Agency Grant Deed, duly executed and acknowledged by the Developer; (2) two (2) duplicate original copies of the Closing Statement, duly executed by the Developer; (3) one (1) original of the Notice of Agreement, as executed and acknowledged by the Developer(in connection with the Escrow relating to the Phase I Property); (4) evidence of the existence, organization and authority of the Developer and of the authority of persons executing documents on behalf of the Developer reasonably satisfactory to the Escrow Holder and the Title Company; (5) documentation of present commitment of financial resources as determined to be reasonably satisfactory by the Agency to provide for the purchase of the Phase I Property, and to provide for the construction, the development, the installation and the completion of the Phase I Property Project, as appropriate; (6) one (1) original of the Scope of Development and one (1) original of the Schedule of Performance, as executed by the Agency and by the Developer; (7) one (1) original of the Agency Grant Deed, as executed and notarized by the Developer, accepting the conveyance from the Agency to the Developer in connection with the Phase I Property; �r (8) any other documents, instruments or funds required to be delivered by the Developer under the terms of this Agreement or as otherwise required by P:�In Stu-Mpl v jean pT to DA Drc %Fwl Esc Wa_ d sQDMe ye Ame MeM Restated DDAl-S9IdEDA-fivl.doce 16 .. Escrow Holder or Title Company in order to close the Escrow, which have not previously been delivered; and. (9) one (1) original executed copy of(i) the Loan Covenant Agreement upon either an assumption of the existing HUD 108 Loan and/or the origination of a New HUD Loan, as applicable, and(ii)the Parking Agreement. Section 2.08. Inspections and Review. (a) Due Diligence Items. Within five (5) business days after the execution of this Agreement, the Agency shall deliver true, correct and complete copies or originals of the following documents and items (collectively, "Due Diligence Items")to the Developer: (1) copies of all soils, seismic, geologic, drainage, engineering, environmental and similar type reports and surveys including, but not limited to, any Property Environmental Site Assessments, surveys, relating to the Phase I Property, if any, in the possession or the control of the Agency. (2) notices of violations, including, but not limited to, zoning ordinances, development or building codes affecting the Phase I Property within the Agency's possession or control. (3) disclosure of any legal matters affecting the use, occupancy or condition of the Phase I Property within the knowledge of the Agency. (b) Certain Definitions. For the purpose of this Agreement, the terms set forth below shall have the following meaning: (i) "environmental laws" means all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating,relating to, or imposing liability of standards of conduct concerning any hazardous substance (as later defined), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, at, in, above, under, from or about the Phase I Property, occupational or environmental conditions on, under, or about the Property, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") [42 USC Section 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 ("RCRA") [42 USC Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act ("FWPCA") [33 USC Section 1251 et seq.]; the Toxic Substances Control Act ("TSCA") [15 USC Section 2601 et seq.]; the Hazardous Materials Transportation Act ("HMTA") [49 USC Section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901 et seq.] the Clean Air Act [42 USC Section 7401 et seq.]; the Safe Drinking Water Act [42 USC Section 300f et seq.]; the P\Cioe tu.We Th aF je0.NLyeTh Ittt DA Draft Finds,Essenr_r mdd TDMS yeA enddend AeswMDDA3.Mt EDA-findd= 17 Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USC Section 101 et seq.] the Emergency Planning and Community Right to Know Act [42 USC Section 11001 et seq.]; the Occupational Safety and Health Act [29 USC Section 655 and 657]; the California Underground Storage of Hazardous Substances Act [H & S C Section 25288 et seq.]; the California Hazardous Substances Account Act [H & S C Section 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H& S C Section 24249.5 et seq.] the Porter-Cologne Water Quality Act [Water Code Section 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted, as amended from time to time, that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, at, in, above, under, from or about the Phase I Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use. (ii) "hazardous substances"includes without limitation: those substances included within the definitions of "hazardous substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste," or "pollutant or contaminate" in CERCLA, RCRA, TSCA, HMTA, or under any other environmental law; and those substances listed in the United States Department of Transportation (DOT)Table [49 CFR 172.1011, or by the EPA, or any successor agency, as hazardous substances [40 CFR Part 302]; and other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and any material, waste,or substance that is: (1) a petroleum or refined petroleum product, (2) asbestos, (3) polychlorinated biphenyl, (4) designated as a hazardous substance pursuant to 33 USC Section 1321 or listed pursuant to 33 USC Section 1317, (5) a flammable explosive, °v (6) a radioactive material, P�to MapT er Prq a ATheue DA DNS Fig s.Eeaow rtletd don�DDNN1rye AmeMetlWAenerW DDA 3-MIO£DA-fivl.daa 18 (7) lead or lead-containing materials: Section 2.09. Due Diligence Investigation of the Phase I Property By the Developer. (a) On or before April 15, 2010, for the Escrow in connection with the Phase I Property, and subject to the extensions of time set forth below in Section 2.15, the Developer shall have the right to examine, inspect and investigate the Property Phase I Property (the "Due Diligence Period") to determine whether the condition of the Phase I Property is acceptable to the Developer and to obtain such development project approvals from the City for the improvement of the Phase I Property Project, as the Developer may require in its sole and absolute discretion. (b) During the Due Diligence Period, the Agency shall permit the Developer, its engineers, analysts, contractors and agents to conduct such physical inspections and testing of the Phase I Property as the Developer deems prudent with respect to the physical condition of the Phase I Property including the inspection or investigation of soil and subsurface soil geotechnical condition, drainage, seismic and other geological and topographical matters, surveys the potential presence of any hazardous substances,if any. (c) Any such investigation work on the Phase I Property may be conducted by the Developer and/or its agents during any normal business hours upon twenty-four (24) hours prior r notice to the Agency, which notice will include a reasonable description of any investigation work or tests to be conducted by the Developer on the Phase I Property. Upon the Agency's request, the Developer will provide the Agency with copies of any test results obtained pursuant to the separate License Agreement. (d) During the Due Diligence Period, the Developer shall also have the right to investigate all matters relating to the zoning, use and compliance with other applicable laws which relate to the use and development and improvement of the Phase I Property. The Developer may submit an application to the City and any other regulatory agency with jurisdiction for any and all necessary development project approvals for the Project. The Agency hereby consents to the submission of such development project approval applications by the Developer. (e) The Agency shall cooperate fully to assist the Developer in completing such inspections and investigations of the condition of the Phase I Property. The Agency shall have the right, but not the obligation, to accompany the Developer during such investigations and/or inspections. The Developer shall pay for all costs and expenses associated with the conduct of all such Due Diligence investigation including the cost of submitting any development project approval application as relates to the Phase I Property Project to any regulatory jurisdiction. The costs of such investigations and/or inspections associated with the conduct of all such Due Diligence investigation are or may be included in the Budget. Section 2.10. Due Diligence Certificate. Within thirty (30) calendar days following the Opening of Escrow in connection with the Phase I Property, the Developer shall complete its P nwa PrquWye�DA DMft%Fi lc E%mw rclatd&cs=MSU MmM W Pwaed DDA)-n-10.Mk- .d= 19 investigation of the Phase I Property (subject to any extensions of time as provided in Section 2.15 and deliver a due diligence certificate signed by the Developer (the "Due Diligence Certificate")to the Escrow Holder which either: (i) indicates that the Developer accepts the condition of the Phase I Property, or; (u) contains a description of the matters or exceptions relating to the condition of the Phase I Property which the Developer was not able to accept or resolve to its satisfaction during the Due Diligence Period. In the event that there are matters that the Developer is unable to accept or resolve, such matters shall be deemed conditions to Closing for the benefit of the Developer and the Closing Date shall automatically be deemed extended for such period as maybe necessary to resolve such matters except as to otherwise required by Section 5.01(i). Section 2.11. Books and Records. As part of the Developer's due diligence investigations during the Due Diligence Period, the Developer shall be afforded full opportunity by the Agency to examine all books and records which relate to the Phase I Property in the possession or direct or indirect control of the Agency and/or the Agency's agents or employees, including the reasonable right to make copies of such books and records. During the Due •— Diligence Period, the Agency will make sufficient staff available to assist the Developer with u. obtaining access to information relating to the Phase I Property which is in the possession or control of the Agency. Section 2.12. Condition of the Property and the Developer's Release. The Developer acknowledges and agrees that it shall be given a full opportunity under this Agreement to inspect and investigate every aspect of the Phase I Property during the Due Diligence Period. The Developer shall accept the delivery of possession to the Phase I Property on the Close of Escrow in an "AS IS", "WHERE IS" and "SUBJECT TO ALL FAULTS" condition. The Developer further agrees and represents to the Agency that by a date no later than the end of the Due Diligence Period,the Developer shall have conducted and completed (or waived the completion) of all of its independent investigation of the condition of the Phase I Property, which the Developer may believe to be indicated. The Developer hereby acknowledges that it shall rely solely upon its own investigation of the Property I Property and its own review of such information and documentation as it deems appropriate for the purpose of accepting the condition and possession of the Phase I Property. The Developer is not relying on any statement or representation by the Agency relating to the condition of the Phase I Property unless such statement or representation is specifically contained in this Agreement. Without limiting the foregoing, the Agency makes no representations or warranties as to whether the Phase I Property presently complies with environmental laws or whether the Phase I Property contains any hazardous substance, as these terms are defined in Section 2.08(b) hereof. Furthermore, to the extent that the Agency has provided the Developer with information relating to the condition of the Phase I Property including information and reports prepared 'iy or on behalf of the City of San Bernardino, the Agency makes no representation or warrant with respect to the accuracy, completeness or methodology or content of such reports or infoia a on. P.,=v =.Mays ibeaecP jw"N ncge DaDM%Fi %Ean FO::ddou0OAWOA AmendW ar-0RaWel A1-29-I0.mA-fiaaLdou 20 Without limiting the above, except to the extent covered by an express representation or warranty of the Agency set forth in this Agreement, the Developer, on behalf of itself and its successors and assigns, waives and release the Agency and its successors and assigns from any and all costs or expenses whatsoever (including, without limitation, attorneys' fees and costs), whether direct or indirect, known or unknown, foreseen or unforeseen, arising from or relating to the physical condition of the Phase I Property, the condition of the soils, the suitability of the soils for the improvement of the Phase I Property Project, as proposed, or any law or regulation applicable thereto, including the presence or alleged presence or harmful or hazardous substances in, at, on, above, under, from or about the Phase I Property, including, without limitation, any claims under or on account of (i) CERCLA and similar statutes and any regulations promulgated thereunder or(ii) any other environmental laws. The Developer expressly waives any rights or benefits available to it with respect to the foregoing release under any provision of applicable law which generally provides that a general release does not extend to claims which the creditor does not know of suspect to exist in his or her favor at the time the release is agreed to, which, if known to such creditor, would materially affect a settlement. By execution of this Agreement, the Developer acknowledges that it fully understands the foregoing, and with this understanding,nonetheless elects to and does assume all risk for claims known or unknown, described in this Section 2.12 without limiting the generality of the foregoing: r.. The undersigned acknowledges that it has been advised by legal counsel and is familiar with the provisions of California Civil Code Section 1542,which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." The undersigned, being aware of this code section, hereby expressly waives any rights it may have thereunder, as well as under any other statutes or common law principles of similar effect. Initials of the Develope . The provisions of this Section 2.12 shall survive a Close of Escrow for the Phase I Property. P:TinemaSw-Maya nmu Pje Ways nuts DAP &RWu Ev wrtrW drc DMN ya AmmdM sodA MDDA 3.2"1 MA-fiuLtlou 21 Section 2.13. Review and Approval of Condition of Title by the Develocet. (a) Within fifteen (15) calendar days following the Opening of Escrow, the Agency has caused to be delivered to the Developer a preliminary title report or title commitment for a CLTA coverage policy of title insurance issued by the Title Company describing the state of title of the Phase I Property together with (i) copies of all exceptions specified therein and with all easements plotted and (ii) a survey prepared in compliance with ALTA/ASCM standards and in a form acceptable to the Title Company for the deletion of the standard survey exception in the Phase I Property Title Policy relating to boundaries, without the addition of further exceptions unless the same are acceptable to the Developer in its sole and absolute discretion (the "Preliminary Title Report"). The Developer shall notify the Agency in writing of any objections the Developer may have to the title exceptions contained in the Preliminary Title Report for the Phase I Property (the "Developer's Objection Notice") prior to the expiration of the Due Diligence Period in connection with the Escrow. The Developer may condition its approval on the Agency's cure of any matters objected to by the Developer. (b) The Agency covenants not to further encumber and not to place any further liens or encumbrances on the Phase I Property, including, but not limited to, covenants, conditions, restrictions, easements, liens, options to purchase, options to lease, leases, tenancies, or other possessory interests without the prior written consent of the Developer. Upon the issuance of any amendment or supplement to the Phase I Property Preliminary Title Report, which adds additional exceptions, the foregoing right of review and approval shall also apply to said amendment or supplement (provided that the period for the Developer to review such amendment or supplement shall be the later of the expiration of the Due Diligence Period for the Escrow or ten(10) calendar days from receipt of the amendment or supplement) and the Escrow shall be deemed extended by the amount of time necessary to allow such review and approval in the time and manner set forth above except as otherwise required by Section 5.01(i). Section 2.14. Survey. The Developer may at its sole cost and separate expense obtain a survey of the Phase I Property prepared by a land surveyor duly licensed by the State of California and in compliance with ALTA/ASCM standards (the "Survey"). The Survey shall be in a form acceptable to the Title Company for the deletion of the standard survey exception in the Title Policy relating to boundaries, without the addition of further exceptions unless the same are acceptable to the Developer in its sole and absolute discretion. The Developer shall have until the end of the Due Diligence Period in connection with the Phase I Property to complete and examine the Survey and to notify Agency in writing of any objections the Developer has to the Survey(the"Developer's Survey Objection Notice"). The Agency shall have a period of five (5) calendar days after receipt of the Developer's Survey Objection Notice in which to deliver written notice to the Developer (the "Agency's Survey Notice") of the Agency's election to either (i) agree to remove the objectionable items prior to the Close of Escrow for the Phase I Property or (ii) decline to remove such items which shall then give the Agency the right to terminate the Escrow for failure of the Developer to comply with the provisions of Section 2.17(2). If the Agency notifies the Developer of its intention to not remove the objectionable items and to thereupon terminate the Escrow for failure of the condition as set forth in Section 2.17(2), the Developer shall have the right, by written notice delivered to the Agency within five (5) calendar days after the Developer's receipt of Agency's Survey Notice, to agree to accept the P Tium w-Mapl as Pmlad%tp iLeVe DA DNIy FlukEsv rtletedE DDAS1 PMaiC<EW Me DDAIM10.mA-finel.dou 22 Phase I Property subject to the objectionable items, in which event, the Agency's election to terminate the Escrow shall be of no effect, and the Developer shall accept the Phase I Property at the Close of Escrow for the Phase I Property, subject to such objectionable items. Prior to the Closing, the Survey shall be recertified to the Developer and the Title Company. The Survey will be performed at the Developer's sole cost and expense. Section 2.15. Extension of Due Diligence Period. (a) In the event the Agency fails to provide to the Developer the documents and other information required by Sections 2.08 and 2.11 by the date or dates set forth therein, the Due Diligence Period for such information shall be extended by one (1) day for each day of the delay by the Agency to permit the Developer to perform an adequate due diligence review not to exceed thirty (30) calendar days in connection with the Phase I Property but not to exceed the time limits for the Close of Escrow as set forth pursuant to Section 2.03(e). The Developer will use its best efforts to notify the Agency of any documents the Agency has failed to deliver to the Developer within the time periods provided in Sections 2.08 and 2.11. (b) In the event that the Interim Executive Director makes a finding that the Developer has undertaken substantial work to complete its investigation of the Phase I Property, the Interim Executive Director shall upon the written request of the Developer, authorize an extension of the Due Diligence Period for an additional sixty (60) calendar days upon written notice to the Agency on or before the end of the Due Diligence Period in connection with the Escrow. (c) Nothing contained in this Section 2.15 shall extend the Close of Escrow dates for the Phase I Property as set forth in Section 2.03(e). Section 2.16. Developer's Conditions Precedent to Close Escrow for the Phase I Prot) . The Developer's obligation to complete the purchase of the Phase I Property and to Close the Escrow thereto shall be conditioned upon the fulfillment of the following conditions precedent, all of which shall be satisfied (or waived in writing pursuant to Section 2.19) prior to the Close of Escrow for either the Phase I Property: (1) the Agency shall not have defaulted on any material term of this Agreement to be performed by the Agency hereunder, and each representation and warranty made by the Agency in this Agreement shall remain true and correct; (2) the Developer's approval of the Phase I Property Preliminary Title Report within the time period specified in Sections 2.13 and cure of objectionable items by the Agency; (3) the Developer's approval of the contents of all Due Diligence Items, and the other investigations of the Phase I Property made by the Developer and/or its designees pursuant to Sections 2.08 and 2.09 herein on or before the expiration of the Due Diligence Period in connection with the Escrow, or such later date if such Due Diligence Period is extended pursuant to P Z- tv Meya na ftjm�ye�DA D FiW;F w rOgu d ODM, ye A ded eM Rev DDA 3.2 1l E A.Po d= 23 Section 2.15 or any other provision hereof The Developer shall be deemed to have disapproved such Due Diligence Items unless they are approved(conditionally or otherwise) on or before 5:00 p.m. on the day of the Due Diligence Period in connection with the Escrow,or such later date if such Due Diligence Period is extended pursuant to Section 2.15 or any other provision hereof; (4) the Developer's approval of any notice of change in representation or warranty given by the Agency pursuant to Section 2.24(a)hereof; (5) the Title Company has committed to issue the Title Policy in connection with the Phase I Property in favor of the Developer in the form described in Section 2.05; (6) the Developer has received the Scope of Development and the Schedule of Performance, as executed by the Agency; (7) the Developer has received purchase money and construction financing to enable the Developer to purchase, to construct, to develop and to install the Improvements in connection with the Phase I Property; and (8) in the event the Developer elects to assume the exiting HUD 108 Loan: (i) the Developer shall either deposit cash equal to $164,197.10 with the Escrow Officer prior to the Close of Escrow or the Developer shall execute and deliver to the Agency through the Escrow Holder a promissory note in favor of the Agency equal to $164,197.10, having a maturity date of one hundred and twenty (120) days after the Close of Escrow, or the date that the Developer completes the Phase I Property Improvements, whichever occurs first, and a subordinate deed of trust encumbering the Phase I Property to secure the obligations of such promissory note; and (ii) the Developer shall either deposit cash equal to $537,153.50 with the Escrow Holder prior to the Close of Escrow or the Developer may execute and deliver to the Agency through the Escrow Holder a promissory note equal to $537,153.50 and a subordinate deed of trust, securing the obligations of such promissory note in favor of the Agency and encumbering the Phase I Property which may be satisfied in whole or in part by the construction by the Developer of an approximate 50 to 75 vehicle parking lot located on an Agency owned parcel at 450"P" Street equal to approximately one-half acre in size (the "Parking Lot Construction"). Such Parking Lot Construction may be commenced by the Developer at anytime after the Close of Escrow as evidenced by receipt of all necessary City pemrits and initiation of physical site development activities. To the extent the Developer has undertaken the Parking Lot Construction, the Developer shall receive a credit not to exceed the entire principal amount of such promissory note in the original principal amount of $537,153.50, plus accrued and unpaid interest P\CinuvSUr Maya]teats Projat�Meya TheatWDDA DMa.Finil4 Esvow Na[�Eoca�DDA,V.Lye AmmEW aM Reatattd DDA}Iy,0.FDA-fioal.tlooc 24 `.. thereon, for the dollar amount of the Parking Lot Construction that has been expended by the Developer prior to the maturity date of said promissory note, or any extension thereof. The Developer shall provide invoices from third parties for the engineering design, payment of City fees and actual construction costs which upon verification by the Executive Director of the Agency shall be deemed to be a payment by the Developer of the amounts owed pursuant to such promissory note. Any amounts not disbursed by the Developer for the Parking Lot Construction shall be paid in cash to the Agency upon the maturity date of such promissory note, or any extension thereof. The Developer recognizes that the Parking Lot Construction is a"public works"project as defined in the California Labor Code Section 1770, et seq., for which the Developer shall pay the prevailing wage rates as required by California Law. Section 2.17. Agency's Conditions Precedent to Close Escrow for the Phase I Property. The Agency's obligation to convey the Property Phase I Property to the Developer shall be conditioned upon the fulfillment of the following conditions precedent, all of which shall be satisfied(or waived in writing pursuant to Section 2.19)prior to the Close of Escrow: (1) the Developer has accepted the condition of the Phase I Property and submitted its Phase I Property Due Diligence Certification to the Escrow Holder within the time period set forth in Section 2.03 of this Agreement, as such time period may be extended pursuant to Section 2.15 or any other provision hereof; (2) the Developer has accepted the condition of title of the Phase I Property on or before the date set forth in Section 2.13; (3) the Developer shall not be in default of any material term of this Agreement to be performed by the Developer hereunder and each representation and warranty of the Developer made in this Agreement shall remain true and correct; (4) the Developer shall be satisfied (or waive satisfaction) of each of the conditions precedent set forth in Section 2.16); (5) the Developer shall have executed the documents typically required by the Escrow Holder and as further required by this Agreement in such form as to allow the recordation of the Agency Grant Deed and the Notice of Agreement in the Official Records of the County Recorder's Office for the County of San Bernardino, shall have deposited the Phase I Property Purchase Price, the Phase I Property Deposit and all other amounts due and owing by the Developer in connection with this Agreement and the Closing of the Escrow relating to the Phase I Property, and shall have executed and acknowledged, if required, all other instruments, documents, P\Cineme5ur-Mes+ihenv ProlaWgf TMata1➢➢A Pub,Final;Evow rcwMd.DDMV ye Am endR ,u DDA1-2110-EDA-fuW.d= 25 agreements, certificates and estoppels, as required by the Agency or the Escrow Holder to close the Escrow relating to the Phase I Property; (6) the Escrow Holder is in a condition to close the Escrow in connection with the Phase I Property thirty (30) calendar days following the Opening of Escrow, subject to the provisions of Section 2.15 and 2.25 but not to exceed the dates set forth in Section 2.03(e); (7) the Developer must have deposited the Scope of Development and the Schedule of Performance, as executed by the Developer; (8) the Executive Director of the Agency must have reasonably approved the following: (i)the HUD 108 Loan documents and other closing certificates, after the approval of any new HUD 108 Loan by the Mayor and Common Council, and all other loans, institutional lenders and/or financings to enable the Developer to purchase the Phase I Property, and to construct,to develop, to install and to complete the Phase I Property Project, (ii) the Developer must have executed and acknowledged, where required, in recordable form for recordation in the Official Records of the County of San Bernardino, State of California, all agreements, documents, and instruments evidencing, securing, guaranteeing and/or relating to the Financing (as defined below), as amended from time to time (singularly and collectively, the "Financing Loan Documents" as further provided in Section 3.05A. hereof) or (iii) the assumption by the Developer of the existing HUD 108 Loan (the "HUD Loan Assumption") and all other loans, institutional lenders and/or financings to enable the Developer to purchase the Phase I Property and to construct, to develop,to install and to complete the Phase I Property Project (the matters identified in this Section 2.17(8) and as additionally provided in Section 3.05A. hereof shall singularly and collectively be referred to as the"Financing");and (9) upon the Developer assumption of the existing HUD 108 Loan: (i) the Developer shall either deposit cash equal to $537,153.50 with the Escrow Holder prior to the Close of Escrow or the Developer may execute and deliver to the Agency through the Escrow Holder a promissory note secured by a subordinate deed of trust on the Phase I Property equal to $537,153.50 in the manner as provided in Section 2.16(8), and (ii) the Developer may execute and deliver to the Agency through the Escrow Holder a promissory note secured by a subordinate deed of trust on the Phase I Property equal to $164,197.10 in the manner as provided in Section 2.16(8). (10) the Developer shall have executed and delivered to the Agency a Fund Control Agreement in form and substance acceptable to the Agency pursuant to which all funds including the Developer's equity contribution, all proceeds of the New HUD Loan and the proceeds of the NMTC P:\Cinema5�ar Mnp Thmer PryenNLp IbutW➢DADeafla,Fwab.Fiaew_NatM dm�DDA1V.faya Am<ndM and Reautd DDA]-39-10.FDA-6vl.dou 26 financings described in Section 3.05A and any and all other construction funds shall be deposited and administered by the California Fund Control, a subsidiary of First American Title Company, to assure compliance with the requirements of this Agreement and the payment of the prevailing wages as set forth in Sections 3.09 and 3.10, as applicable; the Agency shall be responsible for the payment of all costs and fees due to California Fund Control. Provided that the Developer timely deposited the $2,600,000 of the amount required pursuant to the resolution approving the execution of this agreement and all and any portion of such deposit have been used and applied for the purposes of payment of hard project costs (such hard costs are limited to labor and materials that have been directly applied for the renovation, modeling and betterment of the theater paid after the date of this agreement) pursuant to the Fund Control Agreement, the Agency shall reimburse the Developer all such hard project costs that have been paid in the event escrow does not close regardless of the reason for such failure for escrow to close and the Developer has released the Agency from all further obligations under this agreement. (11) upon the assumption of the HUD 108 Loan and/or the origination of a New HUD Loan, the Developer shall have deposited with the Escrow Holder one (1) mutually executed original of the Loan Covenant Agreement and one (1) mutually executed original of the Parking Agreement. (12) the Developer shall have deposited with the Escrow Holder the $2,600,000 equity contribution (as hereinafter set forth in Section 3.05A), in cash or equivalent acceptable to the Agency in its sole discretion or such greater amount as required by HUD for the consummation of either the New HUD Loan or the HUD Loan Assumption. (13) the Developer shall have deposited with the Escrow Holder cash or an irrevocable letter of credit issued by Wells Fargo Bank, by Bank of America or by any other commercial bank, in favor of the Agency and acceptable to the Agency in its sole discretion, in the amount of$450,000, or cash equivalent to be held at an account at Far East National Bank or an account designated by Developer. Section 2.18. Distribution of Documents to the Developer. After the Closing Date by Escrow Holder, the Escrow Holder shall deliver to the Developer within three (3) business days following the Closing Date in connection with the Escrow for the Phase I Property a conformed copy of the Agency Grant Deed in connection with the transfer of the Phase I Property, as recorded, and the policy of title insurance issued by the Title Company in favor of the Developer. Section 2.19. Satisfaction of Conditions. Where satisfaction of any of the foregoing conditions requires action by the Developer or by the Agency, each party shall use its diligent P:�imm6w-Maya MaPrjevV ya ThcvW DA DMa,Fins.Essmw miamdd VDMM ya Amended WRe dDDAI: tLLWA-Enldata 27 i best efforts, in good faith, and at its own cost, to satisfy such condition. Where satisfaction of any of the foregoing conditions requires the approval of a party, such approval shall be in such party's sole and absolute discretion. Either party may waive any of the conditions set forth in this Agreement as to items that are intended to be performed by the other party, but any such waiver as to performance by the other party shall be effective only if contained in a writing signed by the applicable party and delivered to the Escrow Holder. Section 2.20. RESERVED. Section 2.21. Proration Closing Costs. Possession. (a) Real and personal property taxes for the Phase I Property shall be prorated by the parties to the applicable Closing Date on the basis of a three hundred sixty-five (365) day year on the basis that the Agency is responsible for (i) all such taxes (if any) for the fiscal year of the applicable taxing authority occurring prior to the Current Tax Period (as defined below) and (ii) that portion of such taxes for the Current Tax Period to 11:59 p.m. on the Closing Date, whether or not the same shall be payable prior to the Closing Date. The phrase "Current Tax Period" refers to the fiscal year of the applicable taxing authority in which the Closing occurs. All tax proration shall be based upon the latest available tax statement. If the tax statements for the fiscal tax year during which Escrow closes do not become available until after the Closing Date, then the rates and assessed values of the previous year, with known changes, shall be used, and the parties shall re-prorate said taxes outside of Escrow following the Closing Date when such tax statements become available. The Agency shall be responsible for and shall pay or reimburse the Developer upon demand for any taxes that were due and payable by the Agency, or were paid by the Developer upon the Closing Date for taxes assessed and which were due and payable by the Agency, during the period of Agency ownership of the Phase I Property. The Agency shall have no responsibility for the payment of any costs at the Closing Date for the Phase I Property, and shall not be responsible for any real or personal property taxes payable following the Closing Date applicable to any period of time prior to the Closing Date as a result of any change in the tax assessment by reason of reassessment, changes in use of the Phase I Property, changes in ownership, errors by the Assessor or otherwise. (b) The Developer shall be entitled to exclusive possession of the Phase I Property immediately upon the Close of the Escrow. (c) The Agency shall pay one hundred percent(100%) of the cost of the premium for the Title Policy equal to the cost of a CLTA owner's coverage policy of title insurance on the Property Phase I Property for coverage in the amount of the Phase I Property Purchase Price together with all title charges reasonably requested by the Developer to remove disapproved items shown on the Phase I Property Preliminary Title Report pursuant to Sections 2.13 and 2.14 above but subject to Section 2.05 above. The Developer shall pay one-half (1/2) of the customary and reasonable escrow fees which may be charged by the Escrow Holder in connection with the Close of Escrow. p:lCioew9w-F yinwarroleaNl neaerODAD tFinds Ev wNaredd TDM, ya Amendeda Raw DDA3-29-10.MA-finaldon 28 The Developer shall be responsible for paying the difference in cost between a CLTA policy of title insurance and the cost of an ALTA extended owner's policy of title insurance that is to be delivered to the Developer at the Close of Escrow for the Phase I Property in addition to the cost of all title endorsements, plus one-half(1/2) of the cost of recording the Agency Grant Deed and the Notice of Agreement in connection with the Escrow relating to the Phase I Property, together with one-half(1/2) of the cost of the customary and reasonable escrow fees charged by the Escrow Holder in connection with the Close of Escrow for the Phase I Property. Any other Escrow-related transaction expenses or escrow closing costs incurred by the Escrow Holder in connection with this transaction shall be apportioned and paid for by the parties to this Agreement in the manner customary in San Bernardino County, California. No later than three (3) business days prior to the Closing Date in connection with the Escrow, the Escrow Holder shall prepare for approval by the Developer and the Agency a closing statement ("Closing Statement") on the Escrow Holder's standard form indicating, among other things, the Escrow Holder's estimate of all closing costs, and pay-off amounts for the release and reconveyance of all liens secured by the Phase I Property and proration made pursuant to this Agreement. The Developer and the Agency shall assist the Escrow Holder in determining the amount of all prorations. Section 2.22. RESERVED. P\Cima w-Mays Tb tc RjmWsysS 9e DA DMs,Fimis,Euraw 6r edd sODMS ys AmendW sotl Raved DDA 1-29-MMA-fi d= 29 Section 2.23. Breach by the Developer of Article II Liquidated Damages Payable by the Developer to the Agency. IN THE EVENT THAT THE DEVELOPER COMMITS A MATERIAL BREACH, WHICH REMAINS UNCURED OR WHICH DEVELOPER HAS FAILED TO COMMENCE TO CURE AFTER RECEIPT OF NOTICE, OF ITS OBLIGATIONS UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF ESCROW IN CONNECTION WITH THE PHASE I PROPERTY OR FAILS TO CLOSE ESCROW IN CONNECTION WITH THE PHASE I PROPERTY, THE DAMAGES THAT THE AGENCY WILL INCUR BY REASON THEREOF ARE AND WILL BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE DEVELOPER AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE AGENCY'S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY THE DEVELOPER HAVE AGREED THAT SUCH DAMAGES SHALL BE IN THE AMOUNT OF ONE HUNDRED THOUSAND DOLLARS ($100,000) AS LIQUIDATED DAMAGES IN CONNECTION WITH THE ESCROW RELATING TO THE PHASE I PROPERTY. DAMAGES OF SUCH SUMS SHALL BE PAID TO THE AGENCY IN THE EVENT OF DEFAULT BY THE DEVELOPER AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE THE AGENCY'S SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY IN THE EVENT OF AND FOR SUCH DEFAULT BY THE DEVELOPER. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THE AGENCY WAIVES ANY AND ALL RIGHTS WHICH THAT THE AGENCY WOULD HAVE HAD UNDER CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS AGREEMENT. THE AGENCY AND THE DEVELOPER ACKNOWLEDGE AND AGREE THAT EACH OF THEM HAS READ AND UNDERSTANDS THE PROVISIONS OF THIS SECTION AND EACH AGREES TO BE BOUND > S,vsthe RMS. InitDevel oper Initials of the Agency Section 2.24. Representations and Warranties. (a) Warranties and Representations by the Agency. The Agency hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by the Developer and the acquisition by the Developer of the Phase I Property will be made in material reliance by the Developer on such covenants,representations and warranties: (1) Warranties True. Each and every undertaking and obligation of the Agency under this Agreement shall be performed by the Agency timely when due; and that all representations and warranties of the Agency under this Agreement and its exhibits shall be true in all material respects at the Closing as though they were made at the time of Closing. (2) Due Organization. The Agency is a community redevelopment agency, duly formed and operating under the laws of California. The Agency has the legal power, right .nd authority to enter into this Agreement and to execute the instrumc . s and documents referenced herein, and to consummate the trance:- ons contemplated hereby. P\CinemaSUeMSys Tluuv PmjecN.Lys':.eateMDADMtFirul4 Exrow e�tm t. DDNMCyAmeoEM entl RniaiN DDA I-lP-10-FDA-fivd drca 30 (3) Requisite Action. The Agency has taken all requisite action and obtained all requisite consents in connection with entering into this Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required. (4) Enforceability of Agreement. The persons executing any instruments for or on behalf of the Agency have been authorized to act on behalf of the Agency and that this Agreement is valid and enforceable against the Agency in accordance with its terms and each instrument to be executed by the Agency pursuant hereto or in connection therewith will, when . executed, be valid and enforceable against the Agency in accordance with its terms. No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of and compliance with this Agreement by the Agency. (5) Title. Prior to the Closing for the Phase I Property the Agency will be the owner of(and the Developer will acquire hereunder) the entire right, title and interest in the Phase I Property to effectively vest in the Developer good and marketable fee simple title to the Phase I Property that the Developer will acquire the Phase I Property free and clear of all liens, encumbrances, claims, rights, demands, easements, leases or other possessory interests, agreements, covenants, conditions, and restrictions of any kind or character (including, without limiting the generality of the foregoing, liens or claims for taxes, mortgages, conditional sales contracts, or other title retention agreement, deeds of trust, security agreements and pledges and mechanics lien) except: (i) the matters described in Section 2.05,and(ii)the exceptions to title approved by the Developer pursuant to Section 2.13 including the sidewalk encroachment as identified in Section 3.02(a). (6) No Litigation. There are no pending or, to the best of the Agency's knowledge, threatened claims, actions, allegations or lawsuits of any kind, whether for personal injury, property damage, property taxes or otherwise, that could materially and adversely affect the value or use of the Phase I Property or prohibit the sale thereof, nor to the best of the Agency's knowledge, is there any governmental investigation of any type or nature pending or threatened against or relating to the Phase I Property or the transactions contemplated hereby. (7) Operation and Condition Pending Closing. Between the date of this Agreement and the Close of Escrow, the Agency will continue to manage, operate and maintain the Phase I Property in the same manner as existed prior to the execution of this Agreement. �v P Tinema5w.Maya T WPmj�nwe DA DMa Finely Evw Nate]d STDA5U9ya Amended and MMM DDA 3-2A10FMA-5�.dom 31 (8) Contracts. There are no contracts or agreements to which the Agency is a party relating to the operation, maintenance, development, improvement or ownership of the Phase I Property which will survive the Close of Escrow except as may be set forth in the Agency Grant Deed in connection with the transfer of the Phase I Property. (9) Development of Project. Although the Agency makes no representation or warranty that the Phase I Property is suitable for the development or operation of the Phase I Property Project, the Agency has no present knowledge of any condition of the Phase I Property which would prevent its development in accordance with the Scope of Development. (10) Special Studies Zone. The Phase I Property is not located within a designated earthquake fault zone pursuant to California Public Resources Code Section 2621.9 and a designated area that is particularly susceptible to ground shaking, liquefaction, landslides or other ground failure during an earthquake pursuant to California Public Resources Code Section 2694. (11) The Agency's Knowledge. For purposes of this Section 2.24, the terms "to the best of the Agency's knowledge" or"to the Agency's knowledge" shall mean the actual knowledge of Interim Executive Director Emil A. Marcullo. (12) Financing. The Agency has not consented to any Financing (except for the approval by the Agency of the assumption by the Developer of the existing HUD 108 Loan) and, to the best knowledge of the Agency, HUD has not consented to the HUD Loan Assumption by the Developer nor has HUD consented to the making of any New HUD Loan to the Developer and/or to the Agency to enable the Developer to Purchase the Phase I Property and/or to construct, to develop, to install and to complete the Phase I Property Project. If the Agency becomes aware of any act or circumstance which would change or render incorrect, in whole or in part, any representation or warranty made by the Agency under this Agreement, whether as of the date given or any time thereafter through the Closing Date of the Escrow and whether or not such representation or warranty was based upon the Agency's knowledge and/or belief as of a certain date, the Agency will give immediate written notice of such changed fact or circumstance to the Developer, but such notice shall not release the Agency of its liabilities or obligations with respect thereto. All representations and warranties contained in this Section 2.24(a) are true and correct on the date hereof and on the Closing Date of the Escrow and the Agency's liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Close of Escrow. PI inem w,Maya 14 Pr jcaN ya nwat DA DMe,Finals,F.wrow n1and do VD&Waye Amended and Raaau DDA 3-29-10.MA-fiaal. o 32 `w (b) Warranties and Representations by the Developer. The Developer makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by the Agency made in material reliance by the Agency on such covenants, representations and warranties: (1) The Developer is a duly organized and validly existing California limited liability company. The Developer has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced herein and to consummate the transactions contemplated hereby. The persons executing this Agreement and the instruments referenced herein on behalf of the Developer hereby represent and warrant that such persons have the power, right and authority to bind the Developer. (2) The Developer has taken all requisite action and obtained all requisite consents in connection with entering into this Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required. (3) This Agreement is, and all agreements, instruments and documents to be executed by the Developer pursuant to this Agreement shall be, duly executed by and are or shall be valid and legally binding upon the Developer and enforceable in accordance with their respective terms. (4) Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument or other obligation to which the Developer is a party or by which the Developer may be bound, or under law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to the Developer or to the Phase I Property. (5) The Developer shall notify the Agency in writing of any default under any Financing, under the Financing Loan Documents, under the Construction Financing (as defined below) and/or under the Permanent Financing (as defined below). Further, in the event the Developer obtains a New HUD Loan and/or the HUD Loan Assumption to enable the Developer to purchase the Phase I Property and/or to construct,to develop,to install and to complete the Phase I Property Project, the Developer, without limitation, shall do the following: (i) on or prior to the date of the closing of the New HUD Loan or the HUD Loan Assumption,the Developer shall cause an unconditional letter of credit in the amount of $450,000 to be issued by Wells Fargo Bank, by Bank of America, Far East National Bank or by such other commercial lender reasonably acceptable to the Agency, in favor of the Agency, which letter of credit shall have a minimum term P\CinmaSw.Mays ThewP jea\ yaTh tv\DDADMs,Find,.E, Wmdd sODMWaya Ame endkWtd DDAy-]9i1 A-fi�.d 33 of forty-two (42) months or the Developer shall deliver a cash deposit in the amount of$450,000 to be held at an account at Far East National Bank or an account designated by Developer as security for the obligations and liabilities of the New HUD Loan or the HUD Loan Assumption, (ii) the Developer shall fully defease, discharge and pay off either the assumed HUD 108 Loan and/or the New HUD Loan, as applicable, at the end of the third year of such loan or three (3) years from and after any assumption of the existing HUD 108 Loan, and (iii)the Agency, without limitation, shall be permitted to draw against the Letter of Credit or the Cash Deposit, in its entirety, and to apply the proceeds of the Letter of Credit (as defined below) or the Cash Deposit (as defined below), as appropriate, against the assumed HUD 108 Loan or the New HUD Loan, as applicable, in the event the Developer does not fully discharge and pay off the assumed HUD 108 Loan and/or the New HUD Loan, as applicable, at the end of the third year of such loan. (6) The Developer shall not transfer any moneys generated from the cash flow of the Phase I Property or the Phase I Property Improvements for the payment of any other unsecured subordinate debt or used and applied for the payment of any other administrative expenses, overhead or operating costs of any related party, including but not limited to Maya Cinemas North America, Inc., whether an individual or other parent or subsidiary entity related to the Developer until such time as both the HUD 108 Loan and the New HUD Loan have been paid in full or have been fully defeased as to the principal amount then outstanding; provided, however, on an annual basis, the Developer shall be permitted to transfer to Maya Cinemas North America, Inc., for corporate purposes, twenty-five percent (25%) of the cash flow generated from the Phase I Property and from the operation of the Phase I Property Improvements, or Five Hundred Thousand Dollars ($500,000), whichever is less. The Developer shall use seventy-five percent (75%) of such cash flow to pay: (i) all principal and/or interest payments due and payable in connection with the assumption of the HUD 108 Loan and any early redemptions of such HUD 108 Loan;the New HUD 108 Loan,the NMTC financing encumbering the Phase I Property and/or the Phase I Property Improvements to the extent any such prepayments will not conflict with or cause a default by the Developer pursuant to any such New HUD 108 Loan or the NMTC financing: the Agency Loan Documents, the Financing, the Financing Loan Documents, the Construction Financing, the Permanent Financing, any Security Financing Interest, and any other loan, security or transaction now or hereafter encumbering the Phase I Property and/or the Phase I Property Improvements and approved by the Agency and HUD in their sole and absolute discretion (collectively, the "Phase I Property Indebtedness") and (ii) to pay the principal on all such Phase I Indebtedness prior to the maturity date for such Phase I Indebtedness �.r except as limited above with respect to the New HUD 108 Loan and the NMTC financing. PICBwm w-Wry Thmer PrgectV pThegt DADM,,Fius.F ow Nettsd MDA,ULye Amendedend Ruined DDAI-1 I1 W -fiiW.don 34 (7) Except for the Permitted Lien Exceptions;no subordinate financings shall be undertaken by the Developer for which any revenues or assets of the Phase I Project are intended to be pledged for the repayment thereof without the express written consent of the Agency and HUD nor such any liens, encumbrances or other security instruments be placed upon the Phase I Property and the Phase I Property Improvements without the express written consent of the Agency and HUD; provided, however, that after such time as the existing HUD 108 Loan and all Agency Loans have been paid in whole and the principal of and interest thereon are no longer outstanding, the Developer may record deeds of trust as to the Phase I Property to secure other loans of the Developer to the extent such deeds of trust may be permitted pursuant to the terms and provisions of the NMTC financing and the New HUD 108 Loan. All representations and warranties contained in this Section 2.24(b) are true and correct on the date hereof and on the Closing Date of the Escrow and the Developer's liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing of the Escrow. Section 2.25. Damage, Destruction and Condemnation. Prior to the Agency's delivery of possession of the Phase I Property to the Developer at the Close of Escrow, the risk of loss or damage to the Phase I Property shall remain upon the Agency. If the Phase I Property suffers damages as a result of any casualty prior to the Close of Escrow which may materially diminish its value, then the Agency shall give written notice thereof to the Developer promptly after the occurrence of the casualty. The Developer can elect to either: (i) accept the Phase I Property in its damaged condition or(ii) the Developer may terminate this Agreement and recover the Phase I Property Deposit(or portion thereof) as set forth in Section 2.02. The Developer shall confirm the exercise of its election under subparagraph (i) or (ii) of the preceding sentence within thirty (30) calendar days after its receipt of notice from the Agency. In the event that, prior to the Close of Escrow for the Phase I Property any governmental entity shall commence any actions of eminent domain or similar type proceedings to take any portion of the Phase I Property, the Agency shall give prompt written notice thereof to the Developer, and the Developer shall have the option either: (i) to elect not to acquire the Phase I Property and terminate this Agreement and recover the Phase I Property Deposit (or portion thereof), as set forth in Section 2.02; or (ii) the Developer may complete the acquisition of the Phase I Property under this Agreement, in which case the Developer shall be entitled to all the proceeds of such taking; provided however, that the Agency agrees that it shall not settle or compromise the proceedings before the Close of Escrow, without the Developer's prior written consent, which consent will not be unreasonably withheld or delayed. The Developer shall confirm the exercise of its election under subparagraph (i) or (ii) of the preceding sentence within thirty (30)calendar days of its receipt of notice from the Agency. P�Inc Sw hLysTh aFjca 1 Th to DA�Fire F Gw rAwd dxSZDAN yaA eMM W Rained DDA 1-39-10.mAfimLdm 35 L- Section 2.26. Purchase of the Phase III Property. Subject to the conditions and other requirements as set forth in Section 1.07 hereof for the exercise-by the Developer of the election to purchase the Phase III Property, in the event the Developer timely exercises such election for the purchase of the Phase III Property, an escrow shall be established in a similar manner as herein provided for the Phase I Property and all such provisions of Article II for the purchase of the Phase I Property and the Close of Escrow for the Phase I Property shall, to the extent applicable, be utilized and applied for the purchase and Close of Escrow for the Phase III Property. ARTICLE III DEVELOPMENT OF THE PROJECT Section 3.01. Development of the Proiect by the Developer. (a) Scope of Development Schedule of Performance. It is the intent of the parties that promptly following the Close of Escrow for the Phase I Property, the Developer shall commence the construction and development of the Phase I Property Project, subject to applicable City approvals. In connection with the Phase I Property Project, the Developer shall, without limitation, design, construct, develop, install, assemble, attach and complete the Phase I Property Improvements located at, on or in connection with the Phase I Property in accordance with the terms, covenants and conditions of this Agreement (the "Phase I Property Construction"). The scope of the Phase I Property Construction is generally described in the L.r Scope of Development. As set forth in Section 2.17(10), all construction funds regardless of the source of said funds shall be administered by the Fund Control Agent pursuant to the Fund Control Agreement as required pursuant to said Section. (b) The City's zoning ordinance and the City's building requirements will be applicable to the use and development of the Phase I Property. The Developer acknowledges that any change in the plans for the development of the Phase I Property as set forth in the Scope of Development shall be subject to the City's zoning ordinance and building requirements. No action by the Agency or by the City with reference to this Agreement or related documents shall be deemed to constitute a waiver of any City requirements which are applicable to the Phase I Property or to the Developer, any successor in interest of the Developer or any successor in interest pertaining to the Phase I Property except by modification or variance approved by the City consistent with this Agreement (c) The Scope of Development for the Phase I Property Project is hereby approved by the Agency upon its execution of this Agreement as to the minimum requirements thereof subject to the final development and building permit approvals to be obtained by the Developer from the City prior to the Close of Escrow and approval by the Agency of the Scope of Development prior to the Close of Escrow. The Phase I Property Project shall be developed and completed by the Developer in conformance with this Agreement and the approved Scope of Development for the Phase I Property, all applicable Laws, and any and all other plans, specifications and similar development documents required by this Agreement, except for such changes as may be mutually agreed upon in writing by and between the Developer and the Agency. P:\Cin<maSw-Maya Theuu PmjettNleye Therta�DDA DM;Fiul;Eaow_rtlaed ErcADDATMaye AmendW eM Rmnm ODA]-39-10.EDA-finel.AUa 36 (d) The approval of the Scope of Development by the Agency hereunder shall not be binding upon the City Council or the Planning Commission of the City with respect to any approvals of the Phase I Property Project required by such other bodies. If any revisions of the Scope of Development as approved by the Agency shall be required by another government official, agency, department or bureau having jurisdiction over the development of the Phase I Property, the Developer and the Agency shall cooperate in efforts to obtain waivers of such revisions, or to obtain approvals of any such revisions which have been made by the Developer and have thereafter been approved by the Agency. The Agency shall not unreasonably withhold approval of such revisions. (e) Notwithstanding any provision to the contrary in this Agreement, the Developer agrees to accept and comply fully with any and all conditions of approval applicable to all permits and other governmental actions imposed by the City and all other governmental agencies and regulatory agencies affecting the development of the Phase I Property and consistent with this Agreement. (f) The Developer shall cause landscaping plans in connection with development of the Phase I Property to be prepared by a licensed landscape architect. The Developer shall prepare and submit to the City for its approval landscaping plans for the Phase I Property if required by the City, which are consistent with City Code requirements. These plans shall be prepared, submitted and approved within the times respectively established therefor in the Schedule of Performance and shall be consistent with the Scope of Development. i.- (g) The Developer shall prepare and submit to the City development plans, construction drawings and related documents for the development of the Phase I Property consistent with the Scope of Development. The development plans, construction drawings and related documents shall be in the form of drawings, plans and specifications. Drawings, plans and specifications are hereby defined as those which contain sufficient detail necessary to obtain a building permit from the City. (h) During the preparation of all drawings and plans in connection with the development of the Phase I Property, the Developer shall provide to the Agency regular progress reports to advise the Agency of the status of the preparation by the Developer, and the submission to and review by the City of construction plans and related documents. The Developer shall communicate and consult with the Agency as frequently as is reasonably necessary to ensure that any such plans and related documents submitted by the Developer to the City are being processed in a timely fashion. (i) The Agency shall have the right of reasonable architectural review and approval of building exteriors and design of the structures to be constructed on the Phase I Property or for the Phase I Property Project which approval shall not be unreasonably withheld or delayed. The Agency shall also have the right to review all plans, drawings and related documents pertinent to the development of the Phase I Property in order to ensure that they are consistent with this Agreement and with the Scope of Development. If the Agency shall determine d at plans, drawings or related document are not consistent with this Agreement and with the .. �ope of v " Development, it shall notify the Developer in writing of such determination setting forts t detail P Tineo =-e yalbu,v Paoj�TGnerMDA Dnft4 Fw%Eanrow mLted d sODI sWaya Amended and R tat'!DDA I-3 MMA-fiv day 37 �-- the reason for any disapproval. Said written disapproval notice shall be sent to the Developer by the Agency within thirty (30) calendar days after the receipt by the Agency from the Developer of any plans and the failure to deliver said notice shall be deemed a waiver of any disapproval rights. The Developer, upon receipt of such notice from the Agency, shall promptly revise the applicable plans, drawings or related documents in a manner that addresses the inconsistency with the Scope of Development and shall resubmit such revised plans, drawings or related documents to the Agency no later than thirty (30) calendar days after its receipt of such notice from the Agency. 0) The Developer shall timely submit to the City for its review and approval any and all plans, drawings and related documents pertinent to the development of the Phase I Property as required by the City. Provided that all such plans, drawings and related documents comply with City standards for submission of completed filings to the City, any failure by the City to approve any of such plans or to issue necessary permits for the development of the Phase I Property within thirty (30) calendar days after receipt thereof shall constitute an enforced delay hereunder, and the Schedule of Performance shall be extended by that period of time beyond said thirty (30) calendar day period in which the City approves said plans; provided, however, that in the event that the City disapproves of any of such plans, the Developer shall within thirty (30) calendar days after receipt of such written disapproval reasonably revise and resubmit such plans in accordance with the City's requirements and in such form and substance so as to obtain the City's approval thereof. No enforced delay shall apply in the event the City is unable to accept any such plans, drawings and related documents due to the lack of quality or the incompleteness of such plans, drawings and related documents. No enforced delay shall be applicable to either party unless the party claiming the enforced delay has provided the other party with written notice of the alleged enforced delay within ten (10) calendar days after the date upon which the alleged enforced delay had occurred and specifying in detail the circumstances that gave rise to such alleged enforced delay and certifying that the party claiming the occurrence of the enforced delay did not in any manner contribute either directly or indirectly to the reasons causing the alleged enforced delay. (k) The Agency shall in good faith use its best efforts to cause the City to approve in timely fashion any and all plans, drawings and documents submitted by the Developer which are consistent with the Scope of Development. (1) The Agency shall approve any modified or revised plans, drawings and related documents for the Phase I Property Project as long as such plans, drawings and related documents are generally consistent with the Scope of Development and any other plans, which have been approved by the Agency. Upon any disapproval of plans, drawings or related documents, the Agency shall state in writing the reasons for such disapproval. The Developer, upon receipt of notice of any disapproval, shall promptly revise such disapproved portions of the plans, drawings or related documents in a manner that addresses the reasons for disapproval and reasonably meets the requirements of the Agency in order to obtain the Agency's approval thereof The Developer shall resubmit such revised plans,drawings and related documents to the Agency as soon as possible after its receipt of the notice of disapproval and, in any event, no later than thirty (30) calendar days thereafter. The Agency shall approve or disapprove such revised plans, drawings and related documents in the same manner and within the same times as PTin=SW-Map Them ProjMN yaTh t1 DADe ,ni s,E.w Nand duea=MS pAmendedeod Ru dDDA3-2T10.MD fiveld 38 �✓ provided in this Section for approval or disapproval of plans, drawings and related documents initially submitted to the Agency. (m) If the Developer desires to make any change in the plans, drawings and related documents after their review by the Agency for consistency with the Scope of Development, the Developer shall submit the proposed change in writing to the Agency for its review for consistency with the Scope of Development. The Agency shall notify the Developer in writing of any determination that the change is not consistent with the Scope of Development, within thirty (30) calendar days after submission to the Agency setting forth in detail the reason for any non-conformity. Said written disapproval notice shall be sent to the Developer within thirty(30) calendar days from the receipt by the Agency from the Developer of any plans and the failure to deliver said notice shall be deemed a waiver of any disapproval rights. If the Developer desires to make any change in the plans, drawings and related documents after their approval by the City, the Developer shall submit the proposed change to the City for approval. The Agency shall use its best efforts to cause the City to review and approve or disapprove any such change as provided in Section 3,01(k)hereof. n The Developer, upon receipt of a notice of disapproval by the Agency and/or the City, may revise such portions of the proposed change in construction drawings, plans and specifications and related documents as are rejected and shall thereafter resubmit such revisions to the Agency and/or the City for approval in the manner provided in Section 3.01(1)hereof. (o) The Developer shall have the right during the course of construction to make changes in construction of structures and "minor field changes" without seeking the approval of the Agency; provided, however, that such changes do not affect the type of use to be conducted within all or any portion of a structure. Said "minor field changes" shall be defined as those changes from the approved construction drawings, plans and specifications which have no substantial effect on the improvements and are made in order to expedite the work of construction in response to field conditions. Nothing contained in this Section shall be deemed to constitute a waiver of or change in the City's Building Code requirements governing such "minor field changes" or in any and all approvals by the City otherwise required for such"minor field changes." (p) The cost of constructing privately owned components of the Phase I Property Project, in addition to all off-site public improvements, shall be bome by the Developer which, if any, are required by the City as a condition of approval for the Phase I Property Project. The Developer shall comply with all applicable State laws relative to the payment of prevailing wages and compliance with the federal Davis-Bacon prevailing wages and reporting requirements as further set forth in Section 3.09 hereof with respect to those components of the Phase I Property Project for the Phase I Property Project if any HUD moneys remain outstanding with respect to the Phase I Property or which are public improvements or other public infrastructure intended to be dedicated to a governmental agency, including the off-site public improvements, and the Developer shall provide written verification of such compliance to the Agency in the form of, but not limited to, certified payroll upon written request from the Agency to the Developer. PWine=SW-Wl Thence PRojwNlyaT Me DAp %Fin s,Escrow_mLKdd ODMa ye Amendedand ReMMDDA343 10.E -finel 39 (q) The Developer shall at its expense cause to be prepared, and shall pay any and all fees pertaining to the review and approval of the development project approvals by the City, including the cost and preparation of all required construction, planning and other documents reasonably required by governmental bodies pertinent to the development of the Phase I Property hereunder including, but not limited to, specifications, drawings, plans, maps, permit applications, land use applications,zoning applications and design review documents. (r) The Developer shall pay for any and all costs, including but not limited to the costs of design, construction, relocation and securing of permits for utility improvements and connections, which may be required in developing the Phase I Property. The Developer shall obtain any and all necessary approvals prior to the commencement of applicable portions of said construction, and the Developer shall take reasonable precautions to ensure the safety and stability of surrounding properties during said construction. (s) The Developer shall commence the work of improvements in connection with the Phase I Property Project within sixty (60) calendar days following the issuance of building permits for the Phase I Property Project and thereafter shall diligently pursue such construction to completion. The Developer shall substantially complete the improvements of the Phase I Property Project no later than November 15, 2010, and the IMAX theater must be completed and operational by April 1, 2011, unless either or both of said dates are extended by the Executive Director of the Agency in his sole and absolute discretion; provided, however, that notwithstanding said stated date the Developer shall have at least one hundred twenty (120) calendar days from the Close of Escrow of the Phase I Property and receipt of all required construction and building permits to complete all such activities for the Phase I Property Project, exclusive of the IMAX theater. The Developer recognizes and agrees to submit the required applications to the City in preparation for the receipt of all construction and building permits to timely commence and complete the Phase I Property Project by the time limits required herein. Any and all performance commitments hereunder shall be extended for any times attributable to delays, which are not the fault of the performing party and are caused by the other party, other than periods for review and approval or reasonable disapprovals of plans, drawings and related documents, specifications or applications for permits as provided in this Agreement. (t) [RESERVED] (u) [RESERVED] (v) [RESERVED] (w) During the period of construction of the Phase I Property Project, the Developer shall submit to the Agency written progress reports when and as reasonably requested by the Agency but in no event more frequently than every four (4) weeks. The reports shall be in such form and detail as may reasonably be required by the Agency, and shall include a reasonable number of construction I'rotographs taken since the last such report submitted by the Developer. In addition, the Develo; . will attend Agency meetings when requested to do so by Agency Staff. P:4�<ma5ur-MvyvThwaProjectVAVyv Th_:. -rDAOM,,Fiwl,FVCrow rtluM tlar�DDASULp AmeMedWRennetl ODA)-29-10.FDA-6rW.tlax 40 (x) Prior to the commencement of any construction, the Developer shall furnish, or shall cause to be furnished, to the Agency duplicate originals or appropriate certificates of public indemnity and liability insurance in the amount of Three Million Dollars ($3,000,000.00) combined single limit, naming the Agency and the City and the elected officials, officers, employees, attorneys and agents of each of them as additional insureds. Said insurance shall cover comprehensive general liability including, but not limited to, contractual liability; acts of subcontractors; premises-operations; explosion, collapse and underground hazards, if applicable; broad form property damage, and personal injury including libel, slander and false arrest. In addition, the Developer shall provide to the Agency adequate proof of comprehensive automobile liability insurance covering owned, non-owned and hired vehicles, combined single limit in the amount of One Million Dollars ($1,000,000.00) each occurrence; and proof of workers' compensation insurance. Any and all insurance policies required hereunder shall be obtained from insurance companies admitted in the State of California and rated at least B+: XII in the most current Best's Key Rating Insurance Guide. All said insurance policies shall provide that they may not be canceled unless the Agency and the City receive written notice of cancellation at least thirty (30) calendar days prior to the effective date of cancellation. Any and all insurance obtained by the Developer hereunder shall be primary to any and all insurance which the Agency and/or City may otherwise carry, including self insurance, which for all purposes of this Agreement shall be separate and apart from the requirements of this Agreement. Any insurance policies governing the Property as obtained by the Agency shall not be transferred from the Agency to the Developer. Appropriate insurance means those insurance policies approved by Agency Counsel consistent with the foregoing. Any and all insurance required hereunder shall be maintained and kept in force until the Agency has issued a Certificate of Completion in substantially the form set forth in Exhibit "F" hereof (the "Certificate of Completion") in connection with the development of the Phase I Property. The Developer waives subrogation and agrees that the Developer and the Agency are co-insured. The Developer will use its best efforts to cause each insurance carrier obtained by it to waive any subrogation claim. (y) The Developer for itself and its successors and assigns agrees that in the construction of the Phase I Property Project the Developer will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, creed, national origin, or ancestry. Notwithstanding the foregoing, the Developer will use its best efforts to offer employment opportunities to local residents and will seek to acquire goods and services from local vendors. (z) The Developer shall carry out its construction of the Phase I Property Project in conformity with all applicable Laws, including, without limitation, all applicable state labor standards, requirements and prevailing wage laws and in particular shall comply with the provisions of Section 3.09 hereof. (aa) The Developer shall, at its own expense, secure or shall cause to be secured, any and all permits which may be required for such construction, development or work by the City or any other governmental agency having jurisdiction thereof. The Agency shall cooperate in good faith with the Developer in the Developer's efforts to obtain from the City or any other P\CimmaSUr-Maya Theater AvjeaVMaya Thea�eMDA DMa,Firol;Fxow rNa4d denrDDASrAdays AmmdM and ResutW DDA 0.3i10.FDA,fiul.dou 41 �✓ appropriate governmental agency any and all such permits applicable to the development of the Phase I Property. (bb) Officers, employees, agents or representatives of the Agency shall have the right of reasonable access to the Phase I Property without the payment of charges or fees, during normal construction hours during the period of construction of the Phase I Property Project for the purpose of verifying compliance by the Developer within the terms of this Agreement. Such officers, employees, agents or representatives of the Agency shall be those persons who are so identified by the Interim Executive Director. Any and all officers, employees, agents or representatives of the Agency who enter the Phase I Property pursuant hereto shall identify themselves at the job site office upon their entrance on to the Phase I Property, and shall at all times be accompanied by a representative of the Developer while on the Phase I Property; provided, however, that the Developer shall make a representative of the Developer available for this purpose at all times during normal construction hours upon reasonable notice from the Agency. The Agency shall indemnify and hold the Developer harmless from injury, property damage or liability arising out of the exercise by the Agency and/or the City of this right of access, other than injury,property damage or liability relating to the negligence of the Developer or its officers, agents or employees. (cc) The Agency shall inspect relevant portions of the construction site prior to issuing any written statements reflecting adversely on the Developer's compliance with the terms and conditions of this Agreement pertaining to development of the Phase I Property. Section 3.02. Obligations of the Agencv. The Agency hereby agrees to perform the following obligations as set forth in subsections(a)through(d)below. (a) The Agency shall file the initial application with the City for the sidewalk encroachment currently existing on "E" Street. After such time as the encroachment permit has been issued by the City and from and after the Close of Escrow,the Developer shall thereafter be responsible for all subsequent monitoring and payment of fees and compliance with all other terms and provisions of such encroachment permit. (b) Prior to the issuance by the City of Final C/O for the Phase I Property Project, the Agency shall cause the existing driveway entrance on "E" Street to be redesigned and reconstructed at the sole cost and expense of the Agency. Such redesigned and reconstructed driveway approach shall comply with all then current City regulations for driveway approaches from public rights-of-way onto private property. The Developer recognizes that some or all of such driveway approach work together with additional right turn lanes for southbound "E" Street may be required by the construction by Omnitrans of the sbX Bus Rapid Transit line that will traverse "E" Street. To the extent any such roadway or driveway improvements will be undertaken by Omnitmns, the Agency shall not be required to undertake such driveway improvements if the Agency obtains a written document illustrating the timely performance and commitment of Omnitrans to construct such required driveway approach and/or additional southbound travel lanes as part of the sbX Bus Rapid Transit line construction project in conformity to any plans and timing requirements of the Developer. P1CiremeSiar-FLy+TheazerFmlMNdaysThUt<r�DDA Dn(u,Fiwl;EUrow Mated do"tDDASU1ay�AmeMed vd Restuel DDA 3-I9-IbmA-fivldocc 42 (c) The Agency shall be responsible for the construction and the payment of all costs for the Phase IA Project consisting of the public area to the south and adjacent to the Phase I Property Project. The Agency shall provide proposed site plans to the Developer prior to submittal to the City for review and comment by the Developer for at least twenty(20) calendar days prior to the Agency commencing to undertake the actual construction thereof. The parties agree that the Developer shall be permitted pursuant to a separate license agreement to operate the existing ticket booth structure until such time as the facility improvements and the relocation of the ticket booth function has been completed. After such time as the ticket booth function has been relocated to the structure of the Phase I Property Project, the Developer at its sole cost and expense shall demolish the existing ticket booth structure and coordinate the replacement of paving materials with the construction activities of the Agency on the Phase lA Project to avoid any avoidable dangers to the general public ingress to and egress from the Phase I Property Project. (d) The Agency has prepared and processed a lot line adjustment with the City that alters the legal descriptions of the Phase I Property and the Phase 1A Property. The Developer has reviewed and approved the final adopted lot line adjustment. (e) The Agency hereby grants to the Developer a right of first refusal to purchase the Phase II Property. In the event the Agency receives from any third person or entity a bona fide written offer to purchase all or any part of the Phase II Property at a purchase price and subject to other terms, covenants and conditions acceptable to the Agency in its sole discretion (the "Offer to Purchase"), or in the event the Agency proposes to make a written bona fide offer to sell all or any part of the Phase II Property to any third person or entity for a purchase price and subject to the terms, covenants and conditions acceptable to the Agency in its sole discretion(the "Offer to Sell'), then the Agency shall first tender such Offer to Purchase or such Offer to Sell to the Developer provided the Developer is not in default under the Agreement. Developer shall have fifteen (15) business days after the date of receipt of such tender to exercise the right of first refusal to purchase the Phase II Property, or part thereof, that is identified in the Offer to Purchase or in the Offer to Sell. During said fifteen(15)business day time period, the Developer shall have the irrevocable right and power to purchase the Phase II Property (or any part thereof) at the same purchase price and subject to the same terms, covenants and conditions as set forth in the Offer to Sell or in the Offer to Purchase. Developer shall exercise its right of first refusal by delivering a written notice of the same to the Agency by hand-delivery, facsimile, email or overnight mail within the fifteen (15) business day time period. If the Developer refuses, fails or does not notify the Agency, in writing, of the exercise by the Developer of its right of first refusal within the time frame set forth above, then the Developer shall have no further right to purchase the Phase II Property, or any part thereof, and the Agency shall be entitled to enter into a disposition and development agreement in connection with the purchase and/or development of all or any part of the Phase II Property, or any other written agreement, with the third person or entity to sell all or any part of the Phase II Property, provided however that said disposition and development agreement or other agreement must have the same purchase price as set forth in the Offer to Purchase or in the Offer to Sell that was delivered by the Agency to the Developer. In the event the Developer timely exercises the Offer to Purchase or the Offer to Sell, the Developer and the Agency shall mutually agree and execute a disposition and development agreement no later than ninety (90) calendar days after the receipt by the Agency of written notice from the PtC maw-WpT to Projxi�nx DADn kFiiW Etteow_mIMWd sTDAfV.1ap Am<Medaed Pnim<d DDA]-M-MMA-�.do 43 Developer of its exercise of the Offer to Purchase or the Offer to Sell. Developer and Agency agree to negotiate the terms of a disposition and development agreement in good faith and further agree to not frustrate the intent of this provision. In the event, the Agency and the Developer are unable to agree to and do not execute a disposition and development agreement in connection with the purchase of all or any part of the Phase II Property within ninety (90) calendar days after the receipt by the Agency of the election by the Developer to purchase all or any part of the Phase II Property, the Developer shall have no further right to purchase all or any part of the Phase II Property. This right of fast refusal to purchase all or any part of the Phase II Property shall automatically terminate and expire, without any written notice from the Agency to the Developer, on April 1, 2012, unless mutually extended in writing by the Agency and by the Developer. (f) Nothing contain in Section 3.02(e) or in the Agreement, shall unconditionally commit the governing board of the Agency or the Mayor and Common Council to approve the exercise by the Developer of its right of fast refusal to purchase all or in part of the Phase II Property pursuant to Section 3.02(e) or to approve any such disposition and development agreement, or any other agreement, presented for consideration and approval, in connection with the timely exercise by the Developer of its right to purchase all or any part of the Phase II Property pursuant to Section 3.02(e). At such time as the governing board of the Agency has rejected the exercise by the Developer of its right of fast refusal to purchase all or any part of the Phase II Property and has rejected the form of the disposition and development agreement, or other agreement, the Developer shall have no further right to purchase all or any part of the Phase II Property. Section 3.03. Taxes and Assessments. The Developer shall pay prior to delinquency all real property taxes and assessments assessed and levied on or against the Phase I Property subsequent to the Close of Escrow for the Phase I Property. Nothing herein contained shall be deemed to prohibit the Developer from contesting the validity or amounts of any tax assessment, encumbrance or lien,nor to limit the remedies available to the Developer in respect thereto. Section 3.04. Chan ce in Ownership Management and Control of the Developer -- Assignment and Transfer. (a) As used in this Section 3.04,the term"Transfer"means: (1) Any total or partial sale, assignment or conveyance, or any trust or power, or any transfer in any other mode or form, by the Developer or an entity controlled by it of more than a forty-nine percent(49%) interest(or series of such sales, assignments and the like which in the aggregate exceed a disposition of more than a forty-nine percent (49%) interest) with respect to its interest in this Agreement, the Phase I Property or the Phase I Property Project, or any part thereof or any interest therein or of the improvements constructed thereon, or any contract or agreement to do any of the same; or P\CinemaSm-Mnp Thu�a ProjeaVAap Thea�WDDA DM;Fiui�Emow relued docsN�nsNlaya Nnendcd uW Rmattd DDA J39-00-FDA-Mel dou 44 . . (2) Any merger, consolidation, sale or lease of all or substantially all of the assets of the Developer or an entity controlled by it (or series of such sales, assignments and the like which in the aggregate exceeded a disposition of more than a forty-nine percent(49%) interest). (b) This Agreement is entered into solely for the purpose of the development of the Phase I Property Project on the Phase I Property by the Developer in accordance with the terms hereof. The Developer recognizes that the qualifications and identity of the Developer are of particular concern to the Agency, in view of (1) the importance of the development of the Phase I Property to the general welfare of the community; and (2) the fact that a Transfer is for all practical purposes a transfer or disposition of the responsibilities of the Developer, as applicable, with respect to the development of the Phase I Property Project on the Phase I Property. The Developer further recognizes and acknowledges that it is because of the qualifications and identity of the Developer that the Agency is entering into this Agreement with the Developer, and, as a consequence, Transfers are permitted only as provided in this Agreement. (c) The limitations on a Transfer as set forth in this Section 3.04 shall apply until such time as a Certificate of Completion is approved by the Agency and filed for recordation as provided in Section 3.07. Except as expressly permitted in this Agreement, the Developer represents and agrees that it has not made nor shall it create or suffer to be made or created, any Transfer, either voluntarily or by operation of law without the prior written approval of the Agency until such time as a Certificate of Completion has been recorded. After the date of recordation of a Certificate of Completion, certain other provisions of this Agreement shall nonetheless be applicable to subsequent conveyances of interest in the Phase I Property as provided in Article rV of this Agreement. Any Transfer made in contravention of this Section 3.04 shall be voidable at the election of the Agency and shall then be deemed to be a default under this Agreement. (d) The following types of a Transfer shall be permitted and approved by the Agency and are referred to herein as a"Permitted Transfer": (1) Any Transfer by the Developer creating a security interest in all or part of the Phase I Property for the acquisition of the Phase I Property or any financing for the construction and improvement of the all or part of the Phase I Property Project, including without limitation any security interest created with respect of any financing for f imiture, fixtures and equipment ("FF&E") or other items of personal property (singularly and collectively, a"Security Financing Interest"); P TpnemaStu-Maya TheaterP jeaWap ThemutDDA Drafts,Finals,Eavowrelated do ODASIMaya Amended and Restated DDA 3-39-10-EDA.Enal doca 45 (2) Any Transfer directly resulting from the foreclosure of a Security Financing Interest created by the Developer in all or part of the Phase I Property or the granting of a deed in lieu of foreclosure of a Security Financing Interest; (3) Any Transfer of stock or equity of the Developer, which does not change management, or operational control of the Phase I Property or of the Phase I Property Project; (4) Any Transfer of any interest in the Developer, irrespective of the percentage of ownership to any entity in which the Developer owns a controlling interest. (e) Provided the particular transaction satisfies the applicable provisions of Section 3.04(d), the Developer is not required to give the Agency advance notice of such a Permitted Transfer. The Agency may, in its reasonable discretion, approve in writing any other Transfer as requested by the Developer, provided such proposed transferee can demonstrate successful and satisfactory experience in the ownership, operation, and management of an operation similar to the Phase I Property Project. Any such transferee for itself and its successors and assigns, and for the benefit of the Agency shall expressly assume all of the obligations of the Developer to the Agency under this Agreement. There shall be submitted to the Agency for review all instruments and other legal documents proposed to effect any such other Transfer; and the approval or disapproval of the Agency shall be provided to the Developer, in writing within thirty (30) calendar days of receipt by the Agency of the request therefore, and the Agency approval of a transfer shall not be unreasonably withheld or delayed. (f) Following the issuance of a Certificate of Completion in connection with the Phase I Property, the Developer shall be released by the Agency pursuant to terms of the final Certificate of Completion to be issued by the Agency for said properties from any liability under this Agreement which may arise from a default of a successor in interest occurring after the date of such a Transfer; provided, however that the covenants of the Developer as set forth in Article IV of this Agreement shall run with the land for the term as provided in Article IV. Section 3.05A. Developer Financing Plan. The Developer shall have the obligation to obtain financing pursuant to a new HUD Section 108 loan (the "New HUD Loan°), and to assume the existing HUD 108 Loan, together with the use of its own equity funds and funds obtained through the NMTC(as defined herein)to purchase the Phase I Property and to construct, to develop, to install and to complete the Phase I Property Improvements on the Phase I Property pursuant to this Agreement all as fiuther set forth in this Section 3.05A. Agency acknowledges that the Developer will be using the proceeds of New Market Tax Credits (the "NMTC") as part of the financing for the acquisition and the construction of the (� Phase I Property and of the Phase I Property Improvements and such NMTC transaction will \rr require the encumbrance of the Phase I Property and certain items of personal property by a CDE PTime w-MayaTh aProje=U pTh twt DADM4Fird P wreWedd=DDMS ye AmendedWRattled DDAI-M-INMA-fioelA 46 ., lender. Agency acknowledges that the aforementioned encumbrance of the Phase I Property by a CDE lender shall be deemed a Permitted Lien Exception and such encumbrance of the Phase I Property by the CDE lender shall be subordinate to the existing HUD 108 Loan. Developer represents to the Agency that to the extent the Developer is required to achieve necessary leveraging valuation and/or loan-to-value ratios or any other financing requirements, in connection with the assumption of the existing HUD 108 Loan, or in connection with the NMTC transaction, the Developer will obtain a "day lender" to accommodate the required structure for the NMTC financing portion without any obligation of either the City and/or of the Agency to make such loan. The Developer will have the obligation to obtain one or more of the financings as set forth in the first paragraph hereof as required by this Agreement. The Agency shall use best efforts to cooperate with the Developer to obtain the New HUD Loan, including the NMTC financing. The Agency and the City have not approved the New HUD Loan nor has the HUD underwriting criteria been approved as shall be utilized by the Developer in connection with the purchase of the Phase I Property and the construction, the development, the installation and the completion of the Phase I Property Improvements on the Phase I Property. Any such New HUD Loan will require the approval by the governing body of the Agency and the Mayor and Common Council on behalf of the City at a later date. The Developer shall have the obligation © to defease the existing HUD 108 Loan at its sole cost and expense with the cooperation of the Agency to process such documents and payments as required by HUD if so elected by the Developer at a later date. The financing obligation to be pursued by the Developer is set forth as follows: (a) New HUD Loan. The Developer shall procure and obtain from HUD a New HUD Loan to enable the Developer to construct, to develop, to install and to complete in part the Phase I Property Improvements on the Phase I Property and the Developer shall comply with the following terms, covenants and conditions: (1) the New HUD Loan shall have a term of seven (7) years and shall be payable as an interest only loan with a principal amount of approximately $4,760,000 or such other principal amount as may be approved by HUD together with other credit requirements as may be imposed by HUD. (2) the Developer shall refinance the New HUD Loan at the end of the third year. (3) The Developer shall deposit with the Agency: (i) an irrevocable letter of credit in the amount of$450,000 in favor of the Agency issued by the Bank of America, by Wells Fargo Bank, by Far East National Bank or by any :comparable commercial bank reasonably acceptable to the Agency (the "Letter of Credit , which Letter of Credit shall �• have a term of forty-two (42) months from the date of the ?u w HUD Loan, or(ii) a cash P-�CircmeSUr-MayThwa Pi9xMLp ThutvDDA OM;Piiuls,Efaw.v_rtlan+ ibuDDASN1ey AmeedM end Ratved CI 3-39.10.EDA-fiW.daa 47 v deposit to be held at an account at Far East National Bank or an account designated by Developer in the amount of $450,000 to secure the obligations and liabilities of the Developer under the New HUD Loan (the "Cash Deposit"). If the Developer does not or is unable to refinance the New HUD Loan at the end of the third year of the New HUD Loan, in whole or in part, or if the Developer does not or is unable to refinance the existing HUD 108 Loan at the end of the third year after the date that the existing HUD 108 Loan has been assumed by the Developer, in whole or in part, if the Developer is in material default under this Agreement, under the Parking Agreement or under the License Agreement or if any other material default which remains uncured or which Developer has not commenced to cure under this Agreement has occurred: (A) the Agency shall have the right to fully or partially draw against the Letter of Credit and to use such proceeds to pay and to offset against the outstanding principal, accrued and unpaid interest, fees, charges and/or penalties then due and payable in connection with the New HUD Loan (or the HUD Loan Assumption as provided in subsection (b)) or (B) the Agency shall have the right to fully or partially draw against the Cash Deposit and to use such proceeds to pay and to offset against the outstanding principal, accrued and unpaid interest, fees, charges and/or penalties then due and payable in connection with the New HUD Loan(or the HUD Loan Assumption as provided in subsection(b)). (4) The Developer shall deposit $2,500,000 to the Escrow Holder which together with the $100,000 presently on deposit with the Escrow Holder shall thus equal �-- the equity contribution of the Developer of $2,600,000 with such deposit of the err $2,500,000 amount being made less any funds expended by the Developer pursuant to the Project budget which the Developer has documented and submitted evidence of said expenditures to the Agency as reasonably approved by the Agency not later than one (1) business day prior to the Close of Escrow, or such earlier date as may be required by HUD or the Escrow Holder, in connection with the purchase of the Phase I Property representing the equity contribution of the Developer or such greater amount as may be required by HUD for the consummation of either the New HUD Loan (or the HUD Loan Assumption as provided in subsection(b)). (5) If the Developer pays off the New HUD Loan or the HUD Loan Assumption as provided in subsection (b) on or prior to the end of the third year of the New HUD Loan and the HUD Loan Assumption, provided no material default remains uncured or which the Developer has not commenced to cure under this Agreement, the Agency will consider using NMTC and/or Section 108 HUD financing for the purchase by the Developer from the Agency of the Phase III Property and the construction, the development, the installation and the completion of the Phase III Property Improvements at the Phase III Property; provided, however,that the Developer has timely exercised the election to purchase the Phase III Property as provided in Section 1.07 hereof. (6) The Developer and the Executive Director of the Agency shall approve, execute and enter into the Section 108 Loan Covenant Agreement as further specified in subsection(b)below. r— PT—ma&w-Maya Thattt RjmtMary Thege DAD ft Final,E—ow revW I.ODM5 ,9 Amended end Ree,.M DDA 1-29-10.EDA-fine d. 48 (7) The provisions of Section 2.16(8) shall have been met by the Developer upon the election of this financing option as set forth in this subsection (a) and the Developer shall comply with Section 3.05(A)(b)below. (b) Assumption of Existing HUD 108 Loan with New HUD Loan and NMTC Financing. (1) The Developer shall have the right to assume the existing HUD 108 Loan in the current principal balance of$4,240,000 plus the cash payment by the Developer to the Escrow Holder in the amount of$537,153.50 or the execution of the promissory note for$537,153.50 and the execution of a subordinate deed of trust encumbering the Phase I Property and securing the obligations of such promissory note as provided in Section 1.08(a) and in Section 2.16(8) hereof, and cash payment by the Developer to the Escrow Holder of the February 1, 2010, interest payment of$164,197.10 or the execution of the promissory note for $164,197.10 and the execution of a subordinate deed of trust encumbering the Phase I Property and securing the obligations of such promissory note as provided in Section 1.08(b) and in Section 2.16(8), as of the Close of Escrow, and become obligated for a New HUD Loan in the principal amount of$4,760,000 subject to final approvals by HUD, preparation of final documentation by HUD and approvals of the New HUD Loan by the governing board of the Agency and by the Mayor and Common Council of the City. (2) Upon the Developer assumption of the existing HUD 108 Loan, the issuance of a New HUD Loan, and the execution and delivery of the Agency Loan Documents by the Developer as provided in Section 3.05A(b)(1), a condition precedent to such series of transactions shall be the execution and delivery by and between the Developer and the Agency of the"Section 108 Loan Covenant Agreement'that includes, without limitation, the following items and as such Section 108 Loan Covenant Agreement is attached hereto as Exhibit "H" which shall be executed by the Developer and the Executive Director of the Agency upon the loan closing for the first to occur of either the assumption of the existing HUD 108 Loan and/or the funding a New HUD Loan: (i) the right of the Agency and its staff and consultants to conduct periodic site inspections of the Phase I Property of the public areas at anytime and of the other areas upon reasonable written or verbal notice to the Developer; (ii) the right of the Agency to review all records,accounting books and operating records of the Developer as to the line item payments being made as to all construction costs in connection with the construction by the Developer of the Phase I Property Improvements and/or to all operating costs of the Phase I Property; (iii) the right of the Agency to review the dollar amounts of all reserve and replacement figures for the normal repair, replacement and improvements of the Phase I Property and all components of the theater operations, including, PyClnemaMw Maya Theater Proje \Ma T to DA DTeA Fo NFx mlu daatDDMV p AmeMW end Rwted DDA 3-2 I] RDA-fi�.dav 49 �.. concessions, projection and sound equipment, seating, floor coverings and other fixtures, furnishings and equipment; and (iv) the Developer shall submit an annual summary on or before January 15 of each calendar year demonstrating for the prior calendar year the financial operations of the theater including gross revenues and all line item expenditures. (3) The Section 108 Loan Covenant Agreement shall also provide the Developer the right to use the financing structure together with the NMTC. (4) The Section 108 Loan Covenant Agreement shall also provide the Agency with the right to make recommendations to the Developer in the event an independent consultant retained by the Agency determines in its professional judgment that the Developer is not operating the theater in a manner that is consistent with industry standards. (5) Any default by the Developer pursuant to the Section 108 Loan Covenant Agreement shall be a default under this Agreement and shall entitle the Agency to seek remedies as provided herein. The Section 108 Loan Covenant Agreement shall no longer be outstanding upon payment in whole of both the HUD 108 Loan and the New HUD Loan. (6) The Developer shall procure additional conventional financing, or use its own funds and/or the NMTC funds, to construct, to develop, to install and to complete the Phase I Property Improvements as provided for in the Budget. The Developer shall assume the HUD 108 Loan, shall obtain the New HUD Loan, shall obtain the NMTC financing, shall procure additional conventional financing, and/or use its own funds, to construct, to develop,to install and to complete the Phase I Property Improvements. (7) The deed of trust securing the HUD 108 Loan shall not be subordinated under any circumstances to any of the financings as described above. Except for the Permitted Lien Exceptions, no additional subordinate financings of any type shall be obtained by the Developer that pledges any revenues of the Phase I Property or the Phase I Property Improvements nor shall any lien, encumbrance of other deed of trust be placed upon the Phase I Property or the Phase I Property Improvements by the Developer either directly or indirectly. Section 3.05B. Security Financing; Rights of Holders. (a) Notwithstanding any provision of Section 3.04 to the contrary, mortgages, deeds ® of i ust, or any other form of lien required for any reasonable method of financing the con _uction and improvement of the Phase I Property (singularly and collectively, the "Co„ ruction Financing') and one or more mortgages, deeds of trust, or other forms of lien P"Cimrt� u-Mey�ibeua RyettUfeya TherteMDADnPS FUWb Fmuv Noted tlocMpMNLy�/unendel�M MwM DDA 3-2?10.IDMR�uI.EOv 50 err required for any reasonable financing that takes out the construction financing (singularly and collectively, the"Permanent Financing") is permitted. The Developer shall notify the Agency in writing in advance of any mortgage, deed of trust, or other form of lien for Construction Financing or for Permanent Financing. The Developer shall not enter into any such conveyance for Permanent Financing without the prior written approval of the Agency, which approval shall not be unreasonably withheld, delayed or conditioned. (b) The Developer shall promptly notify the Agency of any mortgage, deed of trust or other refinancing, encumbrance or lien that has been created with respect to the Phase I Property whether by voluntary act of the Developer or otherwise; provided, however, that no notice of filing of preliminary notices or mechanic's liens need be given by the Developer to the Agency prior to suit being filed to foreclose such mechanic's lien. (c) The words "mortgage" and "deed of trust" as used herein shall be deemed to include all other customary and appropriate modes of financing real estate construction and land development. (d) The holder of any mortgage, deed of trust or other security interest authorized by this Agreement shall in no manner be obligated by the provisions of this Agreement to construct or complete the improvement of the Phase I Property or to guarantee such construction or completion. (e) Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in the completion of construction of the improvements, or any breach or default of any other obligations which, if not cured by the Developer, entitle the Agency to terminate this Agreement or exercise its right to re-enter the Phase I Property, the Agency shall at the same time deliver to each holder of record of any mortgage, deed of trust or other security interest authorized by this Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, at its option, to commence the cure or remedy of any such default and to diligently and continuously proceed with such cure or remedy, within one hundred twenty (120) calendar days after the receipt of the notice; and to add the cost thereof to the security interest debt and the lien of its security interest. If such default shall be a default which can only be remedied or cured by such holder upon obtaining possession, such holder shall seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall remedy or cure such default within one hundred twenty (120) calendar days after obtaining possession; provided that in the case of a default which cannot with diligence be remedied or cured, or the remedy or cure of which cannot be commenced, within such one hundred twenty (120) calendar day period, such holder shall have such additional time as is reasonably necessary to remedy or cure such default of the Developer. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) or to operate the Phase I Property Project without first having expressly assumed the Developer's obligations by written agreement satisfactory to the Agency. The holder in that event must submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations. Any such P�1i ma,u-Maya neum Pmjm�May tN DA Dr W,FinAk E�ww_NatM Gu�DOASV.tays AmeMeE aiM Iteawed DDA]-29-10.FDA-fiml.len 51 holder that undertakes and completes construction of the improvements on the Phase I Property in accordance herewith shall be entitled, upon written request made to the Agency, to be issued the Certificate of Completion by the Agency. (f) In any case where, one hundred eighty (180) calendar days after default by the Developer the holder of any mortgage, deed of trust or other security interest creating a lien or encumbrance upon the Phase I Property, or any portion thereof, has not exercised the option to construct the applicable portions of the Phase I Property Project or to operate the Phase I Property following completion of construction, or has exercised the option but has not proceeded diligently and continuously with construction or operation of the Phase I Property Project, the Agency may purchase the mortgage, deed of trust or other security interest by payment to the holder of the amount of the unpaid debt, including principal, accrued and unpaid interest, late charges, costs, expenses and other amounts payable to the holder by the Developer under the loan documents between holder and the Developer. If the ownership of the Phase I Property has vested in the holder, the Agency may at its option (but does not have an obligation to) seek a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: (1) The unpaid mortgage, deed of trust or other security interest debt, including principal, accrued and unpaid interest, late charges, costs, expenses and other amounts payable to the holder by the Developer under the loan documents between the holder and the Developer, at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings). (2) All expenses, if any,incurred by the holder with respect to foreclosure. (3) The net expenses, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent ownership or management of the Phase I Property such as insurance premiums and real estate taxes. (4) The cost of any improvements made by such holder. (5) An amount equivalent to the interest that would have accrued on the aggregate on such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency. (6) After expiration of the aforesaid one hundred eighty (180) calendar day period,the holder of any mortgage, deed of trust or other security affected by the option created by this Section, may demand, in writing, that the Agency act pursuant to the option granted hereby. If the Agency fails to exercise the right herein granted within sixty (60) calendar days from the date of such written demand, the Agency shall be conclusively deemed to P:\CinamaSm-Maya Thever PmjwNLya TMatM➢DA DMa Finals,Esvow Math tlwsNDAS\Mari AmevdM aM Reamd ODA 3-3RI0.IDA-fivl.EOa 52 have waived such right of purchase of the mortgage, deed of trust or other security interest. (g) In the event of a default or breach by the Developer of a mortgage, deed of trust or other security interest with respect to the Phase I Property, or any portion thereof, where the holder has not exercised its option to complete the development or to operate the Phase I Property Project, the Agency may cure the default but is under no obligation to do so prior to completion of any foreclosure. In such event, the Agency shall be entitled to reimbursement from the Developer of all direct and verifiable costs and expenses incurred by the Agency in curing the default. The Agency shall also be deemed to have a lien of the Agency as may arise under this Section 3.05B.(g) upon the Phase I Property, or any portion thereof, to the extent of such costs and disbursements. Any such lien shall be subordinate and subject to mortgages, deeds of trust or other security instruments executed by the Developer for the purpose of obtaining the funds to construct and improve the Property or for the purpose of obtaining the Permanent Financing as authorized herein. Section 3.06. Right of the Agency to Satisfy Other Liens on the Prooerty after Conveyance of Title. After the conveyance of title to the Phase I Property by the Agency to the Developer and after the Developer has had a reasonable time to challenge, cure or satisfy any unauthorized liens or encumbrances on the Phase I Property the Agency shall after one hundred twenty (120) calendar days prior written notice to the Developer have the right to satisfy any .- such liens or encumbrances; provided, however, that nothing in this Agreement shall require the Developer to pay or make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Phase I Property to forfeiture or sale. Section 3.07. Certificate of Completion. (a) Following the written request therefore by the Developer and the completion of construction of each phase of the Phase I Property Project excluding any normal and minor building "punch-list" items to be completed by the Developer, the Agency shall furnish the Developer with a Certificate of Completion for the Phase I Property in the form set forth in Exhibit"F"which Exhibit is attached hereto and incorporated herein by this reference. (b) The Agency shall not unreasonably withhold the issuance of a Certificate of Completion in connection with the Phase I Property Project. A Certificate of Completion shall be, and shall so state, that it is a conclusive determination of satisfactory completion of construction of the applicable phase of the Phase I Property Project. After the recordation of the Certificate of Completion in connection with the Phase I Property Project, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Phase I Property identified in the Certificate of Completion shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement,except that such party shall be bound by any covenants contained in the grant deed or other instrument of transfer which grant deed or other instrument of transfer shall include the provisions of Sections 4.01 through 4.04, inclusive,of this Agreement. P:�Cincme5ty-Maye]Teatc PmjedNfaYa 1M1emWDDADnfli Fiwl;Ewaw Neted dao�DDAMdeye Ambled ud ReK,ted DDA J-29-10.EDA-fleel.dou 53 (c) Any Certificate of Completion shall be in such form as to permit it to be recorded in the Recorder's Office of the County where the Phase I Property is located. (d) If the Agency refuses or fails to furnish a Certificate of Completion in connection with the Phase I Property Project after written request from the Developer, the Agency shall, within the later of(i) forty-five (45) calendar days after Agency receipt of the written request or (ii) within three (3) business days after the second regular meeting as conducted by the Agency for which an agenda item may by timely submitted for such regular meeting agenda, provide to the Developer a written statement setting forth the reasons with respect to the Agency's refusal or failure to furnish a Certificate of Completion. The statement shall also contain the Agency's opinion of the action the Developer must take to obtain a Certificate of Completion in connection with the Phase I Property Project. If the reason for such refusal is confined to the immediate unavailability of specific items or materials for construction or landscaping at a price reasonably acceptable to the Developer or other minor building"punch-list"items,the Agency may issue its Certificate of Completion in connection with the Phase I Property Project upon the posting of a bond or irrevocable letter of credit,reasonably approved as to form and substance by the Agency Counsel and obtained by the Developer in an amount representing a fair value of the work not yet completed as reasonably determined by the Agency. If the Agency shall have failed to provide such written statement within the foregoing period, the Developer shall be deemed conclusively and without further action of the Agency to have satisfied the requirements of this Agreement with respect to the Phase I Property as if a Certificate of Completion had been issued therefore. For purposes of this subsection (d), it shall be considered reasonable if the Agency ... response as to the failure or refusal to issue a Certificate of Completion is based upon deficiencies or lack of compliance by the Developer with the building plans and site plans as approved by the Development Services Department of the City. (e) A Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the improvements described herein, or any part thereof. A Certificate of Completion shall not be deemed to constitute a notice of completion as referred to in Section 3093 of the California Civil Code, nor shall it act to terminate the continuing covenants or conditions subsequent contained in the Agency Grant Deed. Section 3.08. Purchase of the Phase III Property. The Developer may acquire the Phase III Property in the manner and subject to the requirements as set forth in Section 1.07 hereof. Section 3.09. Federal Davis-Bacon Prevailing Wage Requirements. The Developer recognizes and agrees that for such period of time as either the existing HUD 108 Loan or the New HUD Loan are outstanding and not paid in whole, the provisions of the federal Davis-Bacon prevailing wage laws shall apply as to all construction activities performed upon the properties to be acquired by the Developer from the Agency pursuant to this Agreement or as otherwise provided in Section 1.07 and Section 3.08 above, including,the Phase I Property, the Phase II Property and the Phase III Property. The Developer shall have the obligation to determine whether any activity to be undertaken by the Developer requires the payment of prevailing wages and compliance with the other provisions of the Davis-Bacon prevailing wage laws. The Developer shall not relay upon any recommendations as may be provided by the Agency or any other P1CwemnSUr-mya n.na POjeaNLys ThenWDDA UaAs,Finals,Escrow relateddwfD DASVASye Amentletl end RatafM DDA3-1910.EDA-(�ul.daa 54 person acting on behalf of the Agency as to the manner in which the Davis-Bacon prevailing wage requirements may apply to each construction and maintenance related activity of the Developer upon the properties to be acquired pursuant to this Agreement. Neither the City nor the Agency shall ever be responsible for the payment of any sums under the federal Davis-Bacon prevailing wage requirements,or other prevailing wage requirements,as the result of the activities of the Developer and the development and improvement of any of the properties to be acquired by the Developer pursuant to this Agreement. The Developer shall defend,indemnify and hold harmless the Agency and the City and all officers, officials, employees,consultants and attorneys of the Agency and the City with respect to all such prevailing wage compliance issues arising out of the activities of the Developer in the acquisition of the properties from the Agency pursuant to this Agreement and in constructing the Phase I Project, subsequent phases or any other public improvements under this Agreement or other agreements between the Developer with third parties. The Developer agrees to apprise in writing all third parties seeking to provide labor and construction work on any of the properties for which the Developer has the right to perform or cause to be performed such labor and work as to the provisions of this Section 3.09 and the compliance required pursuant to applicable law regarding the payment of prevailing wages. Any indemnifications received by the Developer from such third parties shall not relieve the Developer of its indemnification obligations to the Agency and the City pursuant to this Section 3.09. The provisions of the federal Davis-Bacon prevailing wage laws shall not be applicable if confirmed in writing by HUD at such time as the Developer elects at its discretion to defease the existing HUD 108 Loan and provided that HUD considers such defeasance, or the initiation of the a defeasance procedure,to warrant the determination by HUD of the non- applicability of any federal Davis-Bacon prevailing wage laws to construction activities related to the Phase I Property,the Phase II Property and/or the Phase III Property pursuant to this Section 3.09. Section 3.10. Comnliance with Prevailing Wage Requirements. (a) The Phase I Property Improvements, together with the other construction and performance obligations of the Developer pursuant to this Agreement, constitute is a "public work" as this term is defined in California Labor Code Section 1720. All employees of both the Developer and any employee of the Developer's contractors and their subcontractors, who perform construction work pursuant to this Agreement, shall be compensated at prevailing wage rates and the Developer for itself and its contractors and subcontractors, shall pay prevailing wage rates under California and Federal law, as applicable, in performance of any such construction work. (b) The Developer recognizes and is aware of the existence of State legislation adopted by the California Legislature in 2001 and generally referred to as SB975 and the present provisions contained in Labor Code Section 1720, et seq. The Developer shall prepare and maintain, or cause each of its construction contractors and subcontractors to prepare and maintain certified payroll records for all work of improvement undertaken by the Developer on the Phase I Property and other construction work undertaken pursuant to this Agreement. The Developer shall provide the Agency with copies of all certified payroll records as prepared and maintained by the Developer and its contractors and subcontractors, for all work of improvement undertaken by the Developer on the Phase I Property or as otherwise undertaken pursuant to this P\Cieema5�ar-Maya Thu,u Proj<[Mfays TheateADDA DM1A PivIS E,ceow MuN do"V)DAMLya AmeMd and Raved DDA I-29.10.FDA-fivldov 55 �► Agreement within ten (10) calendar days following written request thereof as provided in Labor Code Section 1776. The Developer shall cause to be included in all of its third-party construction contracts relating to the construction and improvement of the Phase I Property suitable provisions which compel its contractors and each subcontractor to pay not less than prevailing wages to their employees engaged in the work of improvement of the Phase I Property and to provide the Agency with copies of the certified payroll records maintained by such contractors and subcontractors upon ten (10) calendar days written notice of request for inspection by the Agency. (c) The Agency shall never be responsible for the payment of any sums under Labor Code Section 1720,et seq.,or other prevailing wage requirements as the result of the activities of the Developer and the development and improvement of the Phase I Property and the undertaking of other construction activities pursuant to this Agreement. The Developer shall indemnify and hold harmless the Agency and all officers, officials, employees, consultants and attorneys of the Agency with respect to all such prevailing wage compliance issues arising out of the activities of the Developer in acquiring portions of the Phase I Property from the Agency pursuant to this Agreement and in constructing the Phase I Property Improvements or other public improvements or private improvements under this Agreement or other agreements between the Developer and third parties. The Developer agrees to apprise in writing all third parties seeking to provide labor and construction work on the Phase I Property and other construction work undertaken pursuant to this Agreement as to the provisions of this Section ® 3.10 and the compliance required pursuant to State law regarding the payment of prevailing wages. Any indemnifications received by the Developer from such third parties shall not relieve the Developer of its indemnification obligations to the Agency. ARTICLE IV USE OF THE SITE Section 4.01. Uses. (a) The Developer covenants and agrees for itself, its successors and assigns, that upon completion of the development of the Phase I Property Project that the portion of the Phase I Property that is to be improved as a commercial,restaurant, office and/or retail center or as may otherwise be permitted by the applicable City zoning and City Development Code requirements and shall be used solely for such purposes. The covenant of this Section 4.01(a) shall run with the land as set forth in the Agency Grant Deed. (b) The Developer further covenants and agrees for itself, its successors and assigns, that the Phase I Property shall be improved and developed in accordance with this Agreement, the Scope of Development and/or the Schedule of Performance. The Developer covenants to develop the Phase I Property in conformity with all applicable Laws. The covenants of this Section 4.01(b) shall also run with the land until the date on which the Certificate of Completion r , in connection with the Phase I Property is recorded or the fifth (5'h) anniversary date of recordation of the Agency Grant Deed in connection with the Phase I Property whichever is the last of said events to have occurred. P sCinemaSUr Maya Theam RojecMfaya ThuserlDDADrafts,Finals,Eurow rcla�Mda ODMW.ya Amendedand Re..dDDA339-10�MA-Mald- 56 (c) Neither the Developer, nor its assigns or successors, shall use or otherwise sell, transfer, convey, assign, lease, leaseback or hypothecate the Phase I Property, or any portion thereof, to any entity or party, or for any use of the Phase I Property that is partially or wholly exempt from the payment of real property taxes pertinent to the Phase I Property, or any portion thereof, or which would cause the exemption of the payment of all or any portion of such real property taxes. The covenant of this Section 4.01(c) shall run with the land for the term as set forth in the Agency Grant Deed in connection with the Phase I Property. Section 4.02. Maintenance of the Property. The Developer covenants and agrees for itself, its successors and assigns, to maintain the Phase I Property consistent with the maintenance level of a first class multiple screen movie theater or as shall be reasonably comparable to other commercial, restaurant, office and/or retail centers in the metropolitan areas of the City all as shall be determined by the Agency at its sole discretion. The Developer covenants and agrees that for itself, its successors and assigns, to maintain the Phase I Property in a good condition free from any accumulation of debris or waste material, subject to normal construction job-site conditions, and shall maintain in a neat,orderly, healthy and good condition the landscaping required to be planted in accordance with the Agreement, the Scope of Development and/or the Schedule of Performance. In the event the Developer, or its successors or assigns, fails to perform the maintenance as required herein, the Agency shall have the right, but not the obligation, to enter the Phase I Property and undertake, such maintenance activities. In such event, the Developer (or such successor as may then own the Phase I Property) shall reimburse the Agency for all reasonable sums incurred by it for such maintenance activities as set forth in the Agency Grant Deed for the Phase I Property. The covenant of this Section 4.02 shall run with the land for the term as set forth in the Agency Grant Deed for the Phase I Property. Section 4.03. Obligation to Refrain from Discrimination. The Developer covenants and agrees for itself, its successors,its assigns and every successor in interest to the Phase I Property, or any part thereof, that there shall be no discrimination against or segregation of any person, or group of persons, on account of age, disability, sex, marital status, race, color, religion, creed, national origin or ancestry, including all other protected classes of persons and groups of persons as may be considered as such by any local, Stae or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Phase I Property, or any part thereof; nor shall the Developer, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee or vendees of the Phase I Property, or any part thereof. The covenant of this Section 4.03 shall run with the land for the term as set forth in the Agency Grant Deed for the Phase I Property. Section 4.04. Form of Nondiscrimination and Nonsegregation Clauses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Phase I Property, or any part thereof, that the )eveloper, such successors and such assigns, shall refrain from restricting the sale, lease, sub:... se, rental, transfer, use, occupancy, tenure or enjoyment of the Phase I Property, or any part C aeof, on the basis of age,disability, sex,marital P\Cioama5w-M1'.vYV TAa....PmlvaV.lvYa T":ateMDADMs,FwI;F_rdYW 6 DA,NLya Amvodedavd3teuttl DDA3-3-] MA-ft0d v ... status, race, color, religion, creed, ancestry or national origin of any person, including all other protected classes of persons and groups of persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436. All deeds, leases or contracts pertaining thereto shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (1) In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of age, disability, race, color, creed, religion, sex, marital status, national origin, or ancestry, including all other protected classes of persons and groups of persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." (2) In leases: "The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of age, disability, race, color, creed, religion, sex, marital status, national origin, or ancestry, including all other protected classes of persons and groups of persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health& Safety Code Section 33435 and Section 33436, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sublessee, subtenants, or vendees in the premises herein leased." (3) In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of age, disability, race, color, creed, religion, sex, marital status, national origin, or ancestry, including all other protected classes of persons and groups of persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the p\cinema,ta,-Maya Thence ftjeaU "r tM DA Drafts,Fina3s,Favov_Matad dncaMAStMaya Amended and Aeatated DDA I-19-10.MA-final d= 58 transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the premises herein transferred." The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. The covenant of this Section 4.04 shall run with the land in perpetuity. ARTICLE V DEFAULTS, REMEDIES AND TERMINATION Section 5.01. Defaults—General. (a) In the event that a breach or default may occur prior to the Close of Escrow, the remedies of the parties shall be as set forth in Article II of this Agreement. (b) From and after the Close of Escrow for the Phase I Property, and subject to the extensions of time set forth in Section 6.05 hereof, failure or delay by either party to perform any term or provision of this Agreement shall constitute a default under this Agreement; provided, however, that if a party otherwise in default commences to cure, correct or remedy such default within thirty (30) calendar days after receipt of written notice specifying such default and shall diligently and continuously prosecute such cure, correction or remedy to completion (and where any time limits for the completion of such cure, correction or remedy are specifically set forth in this Agreement, then within said time limits), such party shall not be deemed to be in default hereunder. Further, a default under this Agreement shall occur whenever: (i)the Developer fails to comply with the terms, covenants and conditions of the Financing, the Financing Loan Documents, the Construction Financing, the Permanent Financing, under any Security Financing Interest, of the Agency Loan Documents, or any one of them, including the Loan Covenant Agreement, the Parking Agreement or the License Agreement, or (ii) any representation or warranty made by the Developer or by the Agency under this Agreement or by the Developer under the Financing, the Financing Loan Documents,the Construction Financing, the Permanent Financing, under the Security Financing Interest, of the Agency Loan Documents, or any one of them,the Loan Covenant Agreement,the Parking Agreement and/or the License Agreement is or becomes false; provided, however, that if Developer commences to cure, correct or remedy a curable default within thirty (30) calendar days after receipt of written notice specifying such default and shall diligently and continuously prosecute such cure, correction or remedy to completion (and where any time limits for the completion of such cure, correction or remedy are specifically set forth in any Financing, the Financing Loan Documents, the Construction Financing, the Permanent Financing, under the Security Financing Interest or under the Agency Loan Documents, or any one of them, then within said time limits), Developer shall not be deemed to be in default hereunder. P\C'mcma5�ar-Maya TGeamr Proje.M,a i .ea DAU ,F-1,Eumwrdlt,d do..=A .ye Amended end 0.esamd DDA 3.29-10-EDA-fina1 darn 59 (c) The injured party shall give written notice of default to the party in default, specifying the default complained of by the nondefaulting party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. (d) Any failure or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. (e) Any failure or refusal by the Developer to timely pay any principal, interest and/or any other amounts due and owing in connection with the Financing, the Financing Loan Documents, the Construction Financing, the Permanent Financing, any Security Financing Interest or with the Agency Loan Documents, or any one of them, to repay the New HUD Loan or the HUD Loan Assumption when due or at the end of the seven-year term of the New HUD Loan or at the end of seven(7) years from and after the HUD Loan Assumption shall be a default under this Agreement, without any further notice by the Agency to the Developer and the Developer will: (i) deliver a deed in lieu of foreclosure to the Agency,(ii) immediately terminate its occupancy and possession of the Phase I Property and/or of the Phase I Property Improvements, (iii) transfer to the Agency by bill of sale all equipment and fixtures that are subject to the lien of the New HUD Loan or the HUD Loan Assumption, and (iv) quit claim to the Agency all right, title and interest of the Developer in the undeveloped pads located at the Phase I Property. The Developer recognizes that HUD may require as a condition to obtaining either the New HUD Loan or the HUD Loan Assumption, that the documents specified in items (i) and (iii) of the immediately preceding sentence be delivered to the Agency or to an escrow holder in an executed and undated form in the event such default should occur. After a default by the Developer, the Developer and the Agency may consider a lease for the Phase I Property and for the Phase I Property Improvements but neither the Developer nor the Agency will be obligated to lease, occupy or operate the Phase I Property and/or the Phase I Property Improvements unless mutually agreed upon in the sole and absolute discretion of the Agency and of the Developer. (f) Upon a default by the Developer to timely pay the principal, interest and/or all other amounts due and owing by the Developer under the Financing, under the Financing Loan Documents, under the Construction Financing, under the Permanent Financing, under any Security Interest Financing, and/or under the Agency Loan Documents, or any one of them„ and failure by the Developer to repay the New HUD Loan or the HUD Loan Assumption, as applicable, this Agreement will be terminated immediately upon notice from the Agency to the Developer. The Developer shall remain liable to the Agency for all reasonable attorneys' fees, court costs and all other fees, costs and expenses required to defend any actions of the Developer or any other challenges to the termination by the Agency of this Agreement. (g) Failure of the Developer to timely comply with the provisions of Section 1.08(a), Section 1.08(b), Section 1.08(c), Section 2.03(e), Section 2.16(8), Section 2.17(9), Section 2.17(10), Section 2.17 (11), Section 2.17(12), Section 2.17(13), Section 2.24(b)(5) hereof as to PTin=a5tm-MayiTh tc Prcwl a Theale DAD th.Fi�s.F wNaed drcetDDAStMaya AmevEed WRmYW DDA 3-1A10.mMfivl.Ewx 60 "v,.. the representations and warranties of the Developer in Section 2.24(6)(5), Section 3.05A. and Section 3.05B. (h) A default shall be deemed to have occurred in the event the Developer has not completed the Phase I Property Improvements on or before November 15, 2010, except as otherwise provided pursuant to Section 3.01(s), and has not received the Final C/O or other final City approvals for the completion of such intended construction by said date in the event neither a New HUD Loan or a HUD Loan Assumption has been undertaken to finance in whole or in part the costs of the construction for the Phase I Property Improvements. 'Be Agency shall be entitled at its option to terminate this Agreement and/or pursue all other rights and remedies as set forth in this Agreement. (i) A default shall be deemed to have occurred for failure of the Developer to comply with the provisions of Section 2.03(e), regardless of whether the Phase I Property Improvements have been completed by said date, in the event a Close of Escrow for the Phase I Property has not occurred on or before June 30, 2010, unless extended pursuant to Section 2.03(e) to September 30, 2010, upon notice of default being delivered after said date by the Agency to the Developer without any right to cure such default by the Developer after June 30, 2010, or September 30, 2010, as applicable. The Agency shall be entitled at its option to terminate this Agreement and/or pursue all other rights and remedies as set forth in this Agreement after June 30, 2010, or September 30, 2010, as applicable upon the conditions having been satisfied for the extension of the June 30, 2010, date to the subsequent date of September 30, 2010, as set forth in Section 2.03(e). 6) A default shall have occurred as the result of the Developer to remit the timely payments required in accordance with the promissory note or the completion of the timely performance obligations of the Developer pursuant to Section 2.16(8)hereof. Section 5.02. Legal Actions. (a) In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default,to recover damages for any default, or to obtain any other remedy consistent with the purposes of this Agreement. Such legal actions must be instituted in the Superior Court of the County of San Bernardino, State of California, in any other appropriate court in that County,or in the Federal District Court in the Central District of California. (b) The laws of the State of California shall govern the interpretation and enforcement of this Agreement. (c) In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Interim Executive Director or the Chair of the Agency or in such other manner as may be provided by law. (d) In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service on Moctesuma P�CircmaSm-Maya Thcain Ralett�Afsp TM1eu<TDDA Dafla,Fiiuis,Escrow rtWetl dowWAM1aya Am,Md WP tMDDA1-39MMA-EWl 61 v Espana at the address set forth in Section 1.03(6) (or such other Agent for service of process and at such address as may be specified in written notice to the Agency), or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. Section 5.03. Rights and Remedies are Cumulative. Except with respect to any rights and remedies expressly declared to be exclusive in Article II of this Agreement as relates to a default or breach occurring before the Close of Escrow for the Phase I Property, the rights and remedies of the parties as set forth in this Article V following the Close of Escrow for the Phase I Property are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Section 5.04. Damages: Specific Performance. If either party defaults with regard to any provision of this Agreement, the nondefuilting party shall serve written notice of such default upon the defaulting party. If the defaulting party does not diligently commence to cure such default after service of the notice of default and promptly complete the cure of such default within a reasonable time, not to exceed ninety(90) calendar days (or such shorter period as may otherwise be specified in this Agreement for default) after the service of written notice of such a default, then the non-defaulting party shall be entitled to maintain an action for damages or an action for specific performance in addition to such other remedies as it may have at law or in equity; provided, however, that in the event of a breach by the Developer of its obligations under Article II of this Agreement prior to the Close of Escrow for the Phase I Property, the Agency shall not be entitled to bring an action against the Developer for specific performance and shall be entitled only to the liquidated damages set forth in Section 2.23 hereof. Section 5.05. RESERVED. Section 5.06. Agency Rights of Termination Following Close of Escrow. (a) Unless otherwise permitted pursuant to the terms of this Agreement and subject to written notice of default which shall specify the Developer's default and the action required to commence cure of same and upon ninety (90) calendar days notice to the Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at its option may terminate this Agreement if the Developer in breach of this Agreement assigns or attempts to assign this Agreement, or any right therein, or attempts to make any total or partial sale, lease or leaseback,transfer or conveyance of the Property the Phase I Property and the Developer does not correct such violation within sixty(60)calendar days from the date of receipt of such notice. (b) Subject to written notice of default, which shall specify the Developer's default and the action required to commence cure of same and upon ninety (90) calendar days notice to the Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at its option may terminate this Agreement if the Developer: (i) does not within the time limits set forth in this Agreement or as specifically provided in the Schedule of Performance, subject to extensions authorized by this Agreement due to force majeure or otherwise, submit development plans, construction drawings and related documents acceptable to the Planning P ICinemc5ly-W,ihevv Roje.W.I.Thecae DAD ,Fi.1[E.N.,docslDDASWaya Amnll eM Rc 1 DDA 33A10.EDMfiml.COa 62 Department and Building Division of the City for plan check purposes and in order to obtain building permits for the Phase I Property Project together with applicable fees therefore, all prepared to the minimum acceptable standards as required by the Planning Department and Building Division of the City for commencement of formal review of such documents and as required by this Agreement, or (ii) does not carry out its other responsibilities under this Agreement or in accordance with any modification or variance, precise plan, design review and other environmental or governmental approvals and such default is not cured or the Developer does not commence and diligently and continuously proceed with such cure within sixty (60) calendar days after the date of receipt of written demand therefore from the Agency. (c) Subject to written notice of default which shall specify the Developer's default and the action required to commence cure of same and upon ninety (90) calendar days notice to the Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at its option may terminate this Agreement if upon satisfaction of all conditions precedent and concurrent therefore under this Agreement, the Developer does not take title to the Phase I Property under tender of conveyance by the Agency, and such breach is not cured within sixty (60) calendar days after the date of receipt by the Developer of written demand therefore from the Agency. ARTICLE VI GENERAL PROVISIONS Section 6.01. Notices Demands and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by any party to another party pursuant to or as required by this Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, to the principal office of the Agency and the Developer, as applicable, as designated in Section 1.03(a) and Section 1.03(b) hereof. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, or two(2) calendar business days after it is placed in the United States mail as heretofore provided. (b) In addition to the submission of notices, demands or communications to the parties as set forth above, copies of all notices shall also be delivered by facsimile as follows provided copies to other than the Developer shall be informational only and delivery of such informational or courtesy copies shall not be required to perfect delivery of any notices pursuant to this Agreement: P TinemaStu.Ma,a TEdaln PmjegVdaN neatttlODA Draft,Ficals,Escrow related docADDAsNlaya Amended[and Reoned DDA 1-29-10.EDA-final dcaa 63 To the Developer: Maya San Bernardino Cinemas, LLC Attn.: Moctesuma Esparza;Chief Executive Officer 1201 West 5" Street, Suite T-210 Los Angeles, California 90017 Telephone: (213) 542-4420 with copy to: Maya Entertainment Group, Inc. Atm.: Jose Martinez,Jr., General Counsel 1201 West 5a' Street, Suite T-210 Los Angeles,California 90017 Telephone: (213)542-4420 To the Agency: Redevelopment Agency of the City of San Bernardino 201 North"E" Street, Suite 301 San Bernardino, California 92401 Attn.: Interim Executive Director Telephone: (909)663-1044 Fax: (909) 888-9413 with copy to: Lewis Brisbois Bisgaard & Smith LLP 650 East Hospitality Lane, Suite 600 San Bernardino,California 92408 Attn.: Timothy J. Sabo Telephone: (909) 387-1130 Fax: (909)387-1138 Section 6.02. Conflict of Interest. No member, official or employee of the Agency having any conflict of interest, direct or indirect, related to this Agreement and the development of the Phase I Property shall participate in any decision relating to this Agreement. The parties represent and warrant that they do not have knowledge of any such conflict of interest. Section 6.03. Warranty Against Payment of Consideration for Agreement. The Developer warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. Third parties, for the purposes of this Section, shall not include persons to whom fees are paid for professional services if rendered by attorneys, financial consultants, accountants, engineers, architects and the like when such fees are considered necessary by the Developer. Section 6.04. Nonliability of Agency Officials and Employees. No member, official or employee of the Agency shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or to its successor, or on any obligations under the terms of this Agreement, except for gross negligence or willful acts of such member,officer or employee. PCinema5w-Mep Thence PtolalNLYeThu[dDDA Dnfla,Firalt£raaw NUN dws`DDAs`.WYe MUMd uM Rnu,ed l`DA 3-29-�0.mA-fie,l.dou 64 f w� Section 6.05. Enforced Delay- Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either parry hereunder shall not be deemed to be in default, or considered to be a default, where delays or defaults are due to the force majeure including, without limitation, events of war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes or lack of transportation, weather-caused delays, inability to secure necessary labor, materials or tools, delays of any contractors, subcontractor or supplier, which are not attributable to the fault of the party claiming an extension of time to prepare or acts or failure to act of any public or governmental agency or entity, or any delay caused by a third party, including, without limitation, independent vendors and suppliers, whose performance is not within the control of the Developer. An extension of time for any such force majeure cause shall be for the period of the enforced delay and shall commence to run from the date of occurrence of the delay; provided, however, that the party seeking to invoke such force majeure provision has duly given written notice to the other party within ten (10) calendar days of the date that the force majeure event has occurred specifying (i) the date from which the enforced delay shall commence and the actual or the expected final date,as applicable, for which an enforced delay extension of time of performance is then being sought, and (ii) the detailed description of the particular circumstances, events, facts or occurrences which have give rise to the force majeure;provided, however, that the provisions of this Section shall not apply to (i)the final date for the Close of Escrow of June 30, 2010 or September 30, 2010, as applicable, pursuant to Sections 2.03(e) and 5.01(i) hereof, (ii) the date of three (3) years from and after the © Close of Escrow and the assumption of the existing HUD 108 Loan or the issuance of the New HUD Loan, as applicable, as provided in Section 2.24(b)(5) hereof, or (iii)the date that is seven (7) years from the Close of Escrow and the assumption of the existing HUD 108 Loan or the issuance of the New HUD Loan, as applicable,as provided in Sections 3.05A.(a)(1)and 5.01(f). The inability of the Developer to obtain a satisfactory commitment from a construction lender for the improvement of the Phase I Property or to satisfy any other condition of this Agreement relating to the redevelopment of the Phase I Property shall not be deemed to be a force majeure event or otherwise provide grounds for the assertion of the existence of a delay under this Section 6.05. The parties hereto expressly acknowledge and agree that changes in either general economic conditions or changes in the economic assumptions of any of them which may have provided a basis for entering into this Agreement and which occur at any time after the execution of this Agreement, are not force majeure events and do not provide any party with grounds for asserting the existence of a delay in the performance of any covenant or undertaking which may arise under this Agreement. Each party expressly assumes the risk that changes in general economic conditions or changes in such economic assumptions relating to the terms and covenants of this Agreement could impose an inconvenience or hardship on the continued performance of such party under this Agreement, but that such inconvenience or hardship is not a force majeure event and does not excuse the performance by such party of its obligations under this Agreement. Section 6.06. Inspection of Books and Records. The Agency shall have the right at all reasonable times at the Agency's cost and expense to inspect the books and records of the Developer pertaining to the Phase I Property and/or the development thereof as necessary for the Agency, in its reasonable discretion, to enforce its rights under this Agreement including the P:\GnemaStar-Maya Theater RvjentM1feye Theater\DO4 DnA3,Final;Escrow NateE Eas\DDAaNfaya AmeMeE aM RmateE DDA}2y.�6EDA-fiml.COn 65 right to review the financial records of the Developer. Matters discovered by the Agency shall not be disclosed to third parties unless required by law or unless otherwise resulting from or related to the pursuit of any remedies or the assertion of any rights of the Agency hereunder. The Developer shall also have the right at all reasonable times to inspect the books and records of the Agency pertaining to the Phase I Property and/or the development thereof as pertinent to the purposes of this Agreement. Section 6.07. Approvals. (a) Approvals required of the Agency or the Developer, or any officers, agents or employees of either the Agency or the Developer, shall not be unreasonably withheld and approval or disapproval shall be given within the time set forth in the Schedule of Performance or, if no time is given, within a reasonable time. (b) All amendments or modifications to this Agreement whether substantive or those which are of routine or technical nature, including minor adjustments to the Schedule of Performance, shall require the official action of the governing body of the Agency to approve any and all such items. (c) All approvals required of the Agency shall be interpreted to mean the official actions of the governing board of the Agency unless the context clearly delegates the specific approval authority to the Executive Director of the Agency for such item of approval. Section 6.08. Real Estate Commissions. The Agency shall not be liable for any real estate commissions, brokerage fees or finder fees which may arise from or related to this Agreement. Section 6.09. Indemnification. The Developer agrees to indemnify, defend with legal counsel reasonably acceptable to the Agency, protect and hold the City and the Agency, and their directors, officers, members, managers, consultants, contractors, employees, agents and attorneys, and the successors and assigns of each of them (collectively, the "Agency Parties" which defined term shall also include the Agency), harmless from and against all actions, causes of action, claims, demands, liabilities, damages,judgments, costs, expenses and fees (including, without limitation, reasonable attorneys' fees and court costs), now or hereafter arising from or related to a: (i) any act or omission of the Developer, and/or of any of the Developer's directors, officers, members, managers, consultants, contractors, employees and agents, and the successors and/or assigns of each of them (collectively, the "Developer Parties" which defined term shall also include the Developer), in performing, or failing to perform, its obligations hereunder, (ii) any default by the Developer under this Agreement, subject to any applicable cure period, (iii) any violation by the Developer Parties of any applicable Law, including, without limitation, the violation of any applicable Environmental Law, relating to, in connection with, without limitation, the Phase I Property or the maintenance and/or operation of one (1) or more businesses now or hereafter conducted on or at the Property, or any part thereof, (iv) the discharge or presence of, or the threat of discharge or presence of, one (1) or more hazardous substances located at, in, on, above, below, from, and/or about the Phase I Property, or (v) any �+ warranty or representation made in this Agreement that becomes false and untrue. The Agency P a ire W-Maya Thera ProjatU Th VODA Dre M FJ IA E= N&W donIDDAAMaya Am M aM R MW DDA)-29 10.EDA-fl ado 66 agrees to indemnify, defend, protect and hold the Developer Parties harmless from and against all damages, judgments, costs, expenses and fees (including,-without limitation, reasonable attorneys' fees and court costs) (collectively, the "Developer Party Claims"), now or hereafter, arising from or related to any act or omission of the Agency in performing its obligations hereunder; provided, however, the Agency shall have no liability under this Section 6.09 should one (1) or more of the Developer Party Claims result directly or indirectly from the gross negligence or wrongful conduct of the Developer Parties, or any one of them. This indemnity provision shall survive the execution, delivery, performance and early termination of this Agreement. Section 6.10. Release of the Developer from Liability. Notwithstanding any provision herein to the contrary, the Developer shall be relieved of any and all liability for the obligations of the Developer hereunder with regard to the Phase I Property Project when the Certificate of Completion for the Phase I Property Project has been issued by the Agency hereunder with respect thereto, other than any covenants and obligations contained in the grant deed by which the Phase I Property is conveyed to the Developer. Section 6.11. Attorneys' Fees. If either party hereto files any action or brings any action or proceeding against the other arising out of this Agreement, seeks the resolution of disputes pursuant to Section 5.02 hereof, or is made a party to any action or proceeding brought by the Escrow Holder, then as between the Developer and the Agency, the prevailing party shall be entitled to recover as an element of its costs of suit or resolution of disputes pursuant to Section 5.02 hereof, and not as damages, its reasonable attorneys' fees as fixed by the Court or other fonun for resolution in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement shall be considered as "attorneys' fees" for purposes of this Section. Section 6.12. Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. ARTICLE VII ENTIRE AGREEMENT; COUNTERPARTS; NO MERGER WITH AGENCY GRANT DEED; WAIVERS AND AMENDMENTS Section 7.01. Entire Agreement; Counterparts. (a) This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any portion of the Phase I Property, of the Phase 1 A Property, of the Phase II Property and/or of the Phase III Property and the development thereof as was contained in the 2008 Agreement. This , greement cancels and supersedes the following agreements: (i) the Redevelopment Project S - iy and Exclusive Right to Negotiate Agreement, dated as of October 20, 2008, by and betwc:, the Agency and the Developer and (ii) the Temporary License P Final;Exmw r,I.H d.,DDMS ,.Amended end Fenamd DDA 339-10.FDA-find don 67 Agreement, dated as of October 20, 2008, by and between the Agency and the Developer, and this Agreement supercedes in their entirety the 2008 Agreement and the Amendment No. I thereto. (b) This Agreement shall be executed in four (4) duplicate originals each of which is deemed to be an original. Section 7.02. No Merger; Waivers and Amendments. (a) None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with the Agency Grant Deed conveying title to the Phase I Property and this Agreement shall continue in full force and effect before and after such conveyance. (b) All waivers of the provisions of this Agreement and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Developer. ARTICLE VIII TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION Section 8.01. Execution and Recordation. (a) Following its execution by the Developer and prompt delivery thereafter to the Agency, this Agreement shall be subject to the review and approval by the governing board of the Agency in its sole and absolute discretion within forty-five (45) calendar days after the date of signature by the Developer. In the event that the Agency has not approved, executed and delivered this Agreement to the Developer within the foregoing period, then no provision of this Agreement shall be of any force or effect for any purpose. The date of this Agreement shall be the date when this Agreement shall have been approved by the Agency. (b) The Developer and the Agency agree to permit recordation of this Agreement, or the Notice of Agreement, concurrently upon the Close of Escrow for the Phase I Property in the Office of the County Recorder for San Bernardino County. P�Cinau5tu-Mayo Theuu PnjenMeye TheaiNDDA Uafl;Fivly Ewa+rclstd docADDAU1ry Mulled entl M1msN DDA 139-�0.EDA-fiul.tlon 68 \✓ IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the dates set forth below. AGENCY Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Dated: By: Emil A. Marzullo Interim Executive Director Approved as to Form: By: Agency Cbdn#1 DEVELOPER Maya an B o Cinemas, LLC, a C�i,om- im ed liability company Dated: 3//v B ( Nam Title: [ALL SIGNATURES MUST BE NOTARIZED] P\Cinemasw-Ma"I cen PmjedWyaTh&Im DA Drdm Fiva3AE wM:tWd ODMW..A.n+ daMR.w DDA3-29-MMA-&Oei. 69 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of IN jt\ — tim t x� On LSAT k 31, 1'LG I� before me, -t a �. Dale Here lnaen Name aad T. D9ittr personally appeared ( y'vi3 bid Name )of signa,(a) who proved to me on the basis of satisfactory evidence to be the person(e) whose name(*is/are-subscribed to the within instrument and acknowledged to me that he/sheAhey-executed the same in his/herkheir authorized wASANA CxANniA capacity(ies)-, and that by his✓herltheirsignature(s) on the @MV Comml6slon 4' 1694902 instrument the person(s)(or the entity upon behalf of Notary la,bnc .conforn o which the person(e) acted, executed the instrument. son semardino county Comm.Expires OOn e.2– I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my handy fficial seal. ature Place Notary Sign Seal Apove Signature of Notary PuNla — OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Documern'- `d1y1911(L fl `T KetlC7�7-l 2lcF �y2l 11Vt'ul . +(lY'1LWi tt Document Dater � 'Lvly + Number of Pages: Signer(s) Other Than Named Above: H21'LL Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual • Corporate Officer—Title(s): ❑Corporate Officer—Tftle(s): • Partner—❑Limited ❑General _ ❑ Partner—❑Limited ❑ General _ • Attorney in Fact •• ❑Attorney in Fact •' ❑ Trustee Top of thumb here ❑Trustee Top of thumb here ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: © Signer Is Representing: Signer Is Representing: i C2 Nata iNma Aaaooatnn•g3gWDes AW..PO, m2002•ChalexMh,CA913132402•xvw tondNataryoq Ilemll5907 Reorear'Call1oM1Free1E 15,6927 EXHIBIT"A-1'• LEGAL DESCRIPTION OF PHASE I PROPERTY The land referred to in the Agreement is situated in the County of San Bernardino, State of California, and is described as follows: Parcel 1 of Parcel Map No. 15038, in the County of San Bernardino, State of California, as per plat recorded in book 186 of parcel maps, Page(s) 14 and 15, records of said County. P CiMOUSiar-Afaya TAnmr ProjecMAaN ID<averfDDADMs,Fivl�EVOw n.d , DDASN9ya AmeMedaM .MDDA1-24l0.MA-find.dm EXHIBIT"A-2" LEGAL DESCRIPTION OF PHASE IA PROPERTY [To be provided when available] P\CinemaAar Maya lfiuta RojeaWaya Tbc.t DA D.ft,Finals,E= rtlated dos=ASW.aya AmendM and Resmaz DOA 11910-FDA-fing doa EXHIBIT"A-3" LEGAL DESCRIPTION OF PHASE II PROPERTY [To be provided when available] Pt ji aSw-Maya not RajwaV Th Va DDA DM;Finals,Eee miatedd IDDMM9 Amended aM Rwmu DOA 3-MMMA-fiW d= EXHIBIT"A-4" LEGAL DESCRIPTION OF PHASE III PROPERTY [To be provided when available] P\Cinema5ur-Maya Theuu PmjeaVMap TheatMDDA DMs,Final;Evcrow r<lu<d dassDDASUfaya AmeMM vA 0.esured DOA 1-39-10.mA-fieal tlaa EXHIBIT"B" BUDGET See Schedule of Performance "EXHIBIT D" for Details PHASE Fixtures, Furnishings and Equipment (FF&E) $2,172,650 Building Repairs and Code Compliance $1,264,500 Upgrades (To include Lobby extension and I-Max equipment) $3,795,000 Soft Costs $ 895,000 Total Phase I $8,127,150 p,im ,tu-Mayaflu aejeeNLye Terse DAO S.F�_rdwedd SZD&N1epA ev WRW DDA3-2 Il MA-finYA EXHIBIT"C" SCOPE OF DEVELOPMENT PHASE FF&E IMPROVEMENTS: • Projection and Sound Equipment • Carpet—Lobby&Auditoriums • Seats-4,158 Chairs Lobby Tile and Base • Wall Coverings • Auditorium Wall Carpet • Masking- Screens • Lighting • Concession Equipment • Box Office System • Poster Cases • Aisle Lighting • Acoustical Wall Panels ~ • Security Cameras `� • Flat Screens • Menu Boards BUILDING REPAIRS & CODE COMPLIANCE: • HVAC Repair • Roof Repair • Concession Counters Repair • Restroom Stalls&Upgrades • Misc. Tile Repairs • Paint Exterior and Interior • Step Stairways Correction to Comply with Code ADA Correction UPGRADES: • New Concession Stand in Front of the Theater • Demo Concession&New Game Room • New Blade Signs • Lobby Extension • Retrofit Screen#9 to IMAX Configuration • 3D Digital Projectors • Digital Projector • IMAX Licenses and Projector P Cineme5ur-Meye Theeur Prge¢VNey;TheetWDDA DrW,Fivl;EvaoW_MrWEw=�A eMNevE Me DDA1-MT0. A-fi"Eon i.r EXHIBIT"D" SCHEDULE OF PERFORMANCE On or before one hundred twenty(120)calendar days after the Close of Escrow on the Phase I Property the following shall be completed for at least eight(8)theaters, as applicable: (i) Relocation of all concession booths, (ii) Provide access to the Phase I Property in compliance with the Americans With Disabilities Act(the"ADA"), (iii) Modifications to the risers in each theater to assure conformity, (iv) Replacement of all seating, (v) Installation of digital project and sound systems, (vi) Completion and opening for business of at least eight(8)theaters. On or before two hundred ten(2 10) calendar days after the Close of Escrow on the Phase I Property the following shall be completed: (i) Remodeling and re-branding of the theater complex as a whole, (ii) Completion of the items(ii),(iii),(iv)and(v) above for at least ten(10)of the remaining theaters, (iii) opening of at least ten(10) of the remaining theaters, (iv) Expansion of the entry area into a public access lobby. On or before three hundred(300)calendar days after the Close of Escrow on the Phase I Property the following shall be completed: (i) Removal and relocation of the ticket booth, (ii) Opening of the I-Max theater for public showings, (iii) Issuance of a Final Certificate of Occupancy for the entire Phase I Property. it P:\Cimms$w-Ma"Thea�a Rq<nNfaya'NeuWDDADMS,!'iul4Ewow_r4 d TD&Waya AaanCW and 0.nuiaEDDA3-39-I0.EDA-finaldn- r' EXHIBIT"E" AGENCY GRANT DEED P:\Cin=aSw.Wya Sheate ProjMWga'IT to DAD kFWI Escrow r eedd ZDAaU A endedand Res DDA3.N.lPMA-fined= RECORDING REQUESTED BY AND ) AFTER RECORDING MAIL TO: ) Maya San Bernardino Cinemas, LLC ) 1201 West 50' Street, Suite T-210 ) Los Angeles, California 90017 ) Ann.: ) Exempt from Recording Fee ) pursuant to Gov't Code Section 27383 ) (Space Above For Recorder s Use) REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AGENCY GRANT DEED For valuable consideration, the receipt of which is hereby acknowledged, the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic of the State of California (the "Grantor") hereby grants to MAYA SAN BERNARDINO CINEMAS, LLC, a California limited liability company (the "Grantee"), all of its right, title and interest in and to the real property legally described in Exhibit"A" and by this reference incorporated herein(the"Property"). 1. The Property is conveyed subject to the 2008 Disposition and Development Agreement, dated as of December 15, 2008, by and between the Grantor, as seller, and Maya Cinemas North America, Inc., a California corporation ("Maya Cinemas"), as predecessor buyer,the Amendment No. 1, dated as of June 22, 2009,by and between the Grantor and Maya Cinemas, as predecessor buyer, and the 2008 Amended and Restated Disposition and Development Agreement, dated as of April 5, 2010 (the "Agreement"), by and between the Grantor, as seller, and the Grantee, as buyer. The provisions of the Agreement are incorporated herein by this reference and shall be deemed to be a part hereof as if set forth at length herein. Capitalized terms shall have the meaning provided for in the Agreement unless otherwise specifically defined in this Agency Grant Deed. 2. The Grantee covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in or on the Property. All deeds, leases or contracts made relative to the Property shall contain the following nondiscrimination clauses: I update following at time of delivery of deed as to then current compliance with all local, State and Federal laws 1 P Kinema5w-Mays Thanes Aoje2Mays TheneADDA DMy FiulA Esvow NnW dasDDASN1ays Amadd and Ranatd DDA 3-2A16EDA-fivltlox (a) In deeds: "The grantee herein covenants by and for itself,its heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of age, disability, race, color, creed, religion, sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed,nor shall the grantee, or any person claiming under or through the grantee, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, locations, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in or on the land herein conveyed. The foregoing covenants shall run with the land." (b) In leases: "The lessee herein covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, marital status, national origin or ancestry in the leasing, subleasing, transferring, use, occupancy,tenure or enjoyment of the land herein leased, nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location,number,use or occupancy, of tenants, lessees, subtenants, sublessees or vendees in the land herein leased." (c) In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed,religion, sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." 3. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Agency Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument permitted by the Agreement; provided, however,that any successor of Grantee to the Property shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure,trustee's sale or otherwise. 4. The covenants contained in this Agency Grant Deed against discrimination and segregation shall remain in effect in perpetuity. 5. The Grantor covenants and agrees for itself, its successors and assigns, that upon completion of the development of the Phase I Property Project that the portion of the Phase I Property that is to be improved as a commercial, restaurant, office and/or retail center shall be used solely for such purposes or as may otherwise be permitted by the applicable City zoning and City Development Code requirements. The covenants of this Section 5 shall also run P Tlmma,w.A4ya nwuprajw Ya Tb DA Dfit iim14 E+QOw Mm" d ODAW&p AmeMad W Rma DDA 1-2910.FAA.fiM dm with the land until the date on which the Certificate of Completion in connection with the Phase I Property is recorded or the fifth (5') anniversary date of recordation of this Agency Grant Deed in connection with the Phase I Property,whichever occurs last. 6. The Grantor father covenants and agrees for itself, its successors and assigns, that the Phase I Property shall be improved and developed in accordance with the Agreement, the Scope of Development and the Schedule of Performance. The Grantor covenants to develop the Phase I Property in conformity with all applicable Laws. The covenants of this Section 6 shall also run with the land until the date on which the Certificate of Completion in connection with the Phase I Property is recorded or the fifth (5h) anniversary date of recordation of this Agency Grant Deed in connection with the Phase I Property, whichever occurs last. 7. Neither the Grantor, nor its assigns or successors, shall use or otherwise sell,transfer,convey, assign, lease, leaseback or hypothecate the Phase I Property, or any portion thereof, to any entity or party, or for any use of the Phase I Property, or any portion thereof, that is partially or wholly exempt from the payment of real property taxes pertinent to the Phase I Property, or any portion thereof, or which would cause the exemption of the payment of all or any portion of such real property taxes. The covenants of this Section 7 shall also run with the land until the date on which the Certificate of Completion in connection with the Phase I Property is recorded or the fifth (5w) anniversary date of recordation of this Agency Grant Deed in connection with the Phase I Property, whichever occurs last. 8. The Grantor covenants and agrees for itself, its successors and assigns, to maintain the Phase I Property consistent with the maintenance level of a first class multiple screen movie theater or as shall be reasonably required by other commercial or retail centers in the metropolitan areas of the City. The Grantor covenants and agrees that for itself, its successors and assigns, to maintain the Phase I Property in a good condition free from any accumulation of debris or waste material, subject to normal construction job-site conditions, and shall maintain in a neat, orderly, healthy and good condition the landscaping required to be planted in accordance with this Agreement, the Scope of Development and the Schedule of Performance. In the event the Grantor, or its successors or assigns, fails to perform the maintenance as required herein, the Agency shall have the right, but not the obligation, to enter the Phase I Property and undertake, such maintenance activities. In such event, the Grantor (or such successor as may then own the Phase I Property shall reimburse the Agency for all reasonable sums incurred by it for such maintenance activities as set forth in the Agency Grant Deed for the Phase I Property. The covenants of this Section 8 shall also run with the land until the date on which the Certificate of Completion in connection with the Phase I Property is recorded or the fifth (5") anniversary date of recordation of this Agency Grant Deed in connection with the Phase I Property,whichever occurs last. 9. The covenants contained in this Agency Grant Deed shall be binding for the benefit of the Grantor and its successors and assigns, and such covenants shall run in favor of the Grantor for the entire period during which such covenants shall be in full force and effect, y� without regard to whether the Grantor is or remains an owner of any land or interest herein to which such covenants relate. The Grantor, in the event of any breach of any such covenants, shall PtCine to-Wry iFv RojWW&pTh to DA DMt,iimlA Ewow 9M Ax,MA, yaA eWtl WI4v DDA I-19-10.rDA-6ml.d have the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings, to enforce the curing of such breach as provided in the Agreement or by law. The covenants contained in this Agency Grant Deed shall be for the benefit of and shall be enforceable only by the Grantor and its successors. p N,i aSW.Maya ThWa PrujwN ya neeu DA D S,Pools,E c..r .M d ,ODASW ya Am 11 and 1e ,11 DDA IIIIIIIA-final I- �... IN WITNESS WHEREOF, the Grantor and the Grantee have caused this instrument to be executed on their behalf by their respective officers thereunto duly authorized this_day of 2010. GRANTOR: Redevelopment Agency of the City of San Bernardino, a public body,corporate and politic By: Emil A. Marzullo Interim Executive Director Approved as to Form and Legal Content: By: Agency Counsel i yW✓ P Tircn .-Mays IMUa Prq.aW-e IT�DA Dr.0 Fi.1,Ex ew M.n E ,VDMW..AmeMNW Pe WDDA 1-3L10.FDA-Fm 1. ACCEPTANCE OF AGENCY GRANT DEED THE PROVISIONS OF THIS AGENCY GRANT DEED ARE HEREBY APPROVED AND ACCEPTED. GRANTEE: Maya San Bernardino Cinemas, LLC, a California limited liability company By: Name: Title: NOTARY ACKNOWLEDGMENT State of California ) SS. County of ) On before me, a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies)upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public Place Notary Seal Above a.. P CircmaStu-Mari Tti^uA^IM�eriT�t�DADMCFiula F+eev_Wtl d MDM, y.Am .de .M0. to DDA 3.3 ]0.MA- m.d. ' NOTARY ACKNOWLEDGMENT State of California ) SS. County of ) On before me, a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public Place Notary Seal Above PI inemaSw-Map ThemmhjeaNapT we DADdfl Fire) Ewow_edaud�DA,ULp Amen WRevdDDA13A10.MD fioal.d EXHIBIT "A" Legal Description for Agency Grant Deed The land referred to in the Agreement is situated in the County of San Bernardino, State of California, and is described as follows: Parcel 1 of Parcel Map No. 15038, in the County of San Bernardino, State of California, as per plat recorded in book 186 of parcel maps, Page(s) 14 and 15, records of said County. r PIinema5m-Maya Theater PrgvcVayanevvt DADzft Fireds,avow Natty do WAa4Maya AmeMed aM RauttA DDA I-2911 D fiat/d= EXHIBIT "F" CERTIFICATE OF COMPLETION P\Cjmmaty.Mayo nwuPmjemVA T 9u DAD '+,E uow my do DM ya AmeedM WRe ted DDA I-29,]6MA-5,a d= CERTIFICATE OF COMPLETION WHEN RECORDED,MAIL TO: (Space Above Line For Use By Recorder) CERTIFICATE OF COMPLETION I the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Agency")hereby certify as follows: Section 1. The improvements required to be constructed in accordance with that certain 2008 Disposition and Development Agreement, dated as of December 15, 2008, by and between the Agency and Maya Cinemas North America, Inc., a California corporation ("Maya Cinemas"), the Amendment No. 1, dated as of June 22, 2009, by and between the Agency and Maya, as amended by the 2008 Amended and Restated Disposition and Development Agreement, dated as of April 5, ,2010(collectively, the "Agreement"), by and between the Agency and Maya San Bernardino Cinemas, LLC, a California limited liability company (the "Developer"), on Assessor's Parcel Number and Assessor's Parcel Number (the "Property") more fully described in Exhibit "A" attached hereto and incorporated herein by this reference has been completed in accordance with the provisions of said Agreement. A Notice of Agreement has been recorded with the County Recorder's Office for the County of San Bernardino, State of California, on , as Instrument Number Section 2. This Certificate of Completion shall constitute a conclusive determination of satisfaction of the agreements and covenants contained in the Agreement with respect to the obligations of the Developer, and its successors and assigns to construct and develop the Project (as defined in the Agreement), of the following items: excluding any normal and customary tenant improvements and minor building "punch-list" items, and including any and all buildings and any and all parking, landscaping and related improvements necessary to support or which meet the requirements applicable to the Project and its use and occupancy of the Property, whether or not said improvements are on the Property or on other property subject to the Agreement,all as described in the Agreement, and to otherwise comply with the Developer's obligations under the Agreement with respect to the Property and the dates for the beginning and completion of construction of improvements thereon under the Agreement. The Certificate of Completion shall not affect the rights of the Agency to enforce any covenant in the Agency Grant Deed pursuant P\CinemaSrar-Maya Thewm&Ojeml6a,a nestarDDA Drafts,Finals,Eanrow seineddo DDb MeyaA eC Mand Reva,MDDA)-29-10-mA-finald= to which the Property was conveyed under the Agreement. Said Agreement is an official record of the Agency and a copy of said Agreement may be inspected in the office of the Secretary of the Redevelopment Agency of the City of San Bernardino located at 201 North"E" Street, Suite 301, San Bernardino, California,during regular business hours. Section 3. The Property to which this Certificate of Completion pertains is more My described in Exhibit"A'attached hereto. DATED AND ISSUED this day of 201; Redevelopment Agency of the City of San Bernardino, a public body,corporate and politic By: Emil A. Marzullo,Interim Executive Director NOTARY ACKNOWLEDGMENT State of California ) SS. County of ) On before me, a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies)upon behalf of which the person(s) acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public Place Notary Seal Above Pltineme5ty-M1fayeThut>PrujeaUyaIM1e+ DADMi Fits.Fsn�rAated d MDASya anended W R 9d DDA)-39-10.FDA-fiiul.daa EXHIBIT "A" Legal Description of the Property for Certificate of Completion The land referred to in the Agreement is situated in the County of San Bernardino, State of California, and is described as follows: Parcel 1 of Parcel Map No. 15038, in the County of San Bernardino, State of California, as per plat recorded in book 186 of parcel maps, Page(s) 14 and 15, records of said County. P Ttne Star-Maya Theater ftjo LyaTh Ma DA DMZ Fn,KE Ow rtlan dw DM yo e[M aMR WDDA 1-3A I4MD final Jo EXHIBIT "G" NOTICE OF AGREEMENT P tCinemaStu-Maya Theater Foje Ntaya Thegt DA Drafts.Fl la Esn mjated ftut D&S ya AmeMed and R 9rz DDA 3-39-1d-EDA-fiosl docx RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 201 North"E" Street, Suite 301 San Bernardino, CA 92401 Exempt from Recording Fee per Government Code Section 27383 (Space above for Recorder's Use) NOTICE OF AGREEMENT The undersigned, the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic (the "Agency"), and MAYA SAN BERNARDINO CINEMAS, LLC, a California limited liability company (the "Developer'), are parties to that certain AMENDED AND RESTATED 2008 DISPOSITION AND DEVELOPMENT AGREEMENT (the "Agreement"), dated as of April 5, 2010, for reference purposes only, by and between the Agency and the Developer. Said Agreement contains obligations, covenants and restrictions affecting certain real property (the "Property") which is legally described on Exhibit"A" attached hereto and incorporated herein by this reference. The Agreement is a public record of the Agency and is available for inspection and copying at the Agency's offices located at 201 North"E"Street, Suite 301, San Bernardino, California. Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Date: By Emil A. Marzullo Interim Executive Director Approved as to Form and Legal Content: By: Agency Counsel �r P:Wimm W-i ya nevv PojenWayaTh tv DA Dr .Fi� E¢ro relued d—MDASWayeA ceM end RmWed DDA 3-2-10 EDA-final don NOTARY ACKNOWLEDGMENT State of California ) SS. County of ) On before me, a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) istare subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon behalf of which the person(s) acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public Place Notary Seal Above PKieema5iv-F4 l ge Pgeam4 TheaieADDADe %FinikE wrtmMtlo ZDAAMrye AmeMetleMRNmMDDA)-39MMA� .do EXHIBIT "A" Legal Description of Property The land referred to in the Agreement is situated in the County of San Bernardino, State of California, and is described as follows: Parcels 1 of Parcel Map No. 15038, in the County of San Bernardino, State of California, as per plat recorded in book 186 of parcel maps, Page(s) 14 and 15, records of said County. p: in ma to-Maya newer R jwi ya Theme DA Dft Fu k Ew rdat d do"rDDMa ya AltMed a Rlwn DDA 1-29-10.MA-fi.W da EXHIBIT"H" Loan Covenant Agreement P\,i SUr-Maya net ProjcdM TMUe DADreRr,F S.Es wMaMd MDMS ye Am dd end 11 DDA)-t9-�DFDMfiml.doa EXHIBIT "I" Parking Agreement Pt inemOtw-Maya Theatr PsgenNtaya Theu DAD 3,Fimis,Escrow NashE MDASWpAmeMdand P.e WDDAl-S IPM finMd. RECORDING REQUESTED BY: Redevelopment Agency of the City of San Bernardino WHEN RECORDED MAIL TO: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, California 90017 Attention: (Space Aka a Line for Use By Recorder) REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO PARKING AGREEMENT (Maya San Bernardino Cinemas— Mara 20-Plea Theater Project) THIS PARKING AGREEMENT ("Agreement') dated as of April 5. 2010, which shall be effective on the date of the recordation of this Agreement in the Official Records of the County Recorder's Office for the County of San Bernardino, State of California, regardless of the actual date of the execution, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO. a public body, corporate and politic (the "Agency") and MAYA SAN BERNARDINO CINEMAS. LLC, a California limited liability company (the "Developer'), with respect to the following facts: Recitals A. The parties hereto have previously entered into that certain Amended and Restated 2008 Disposition and Development Agreement, dated as of April 5, 2010 (the"DDA") for the purpose of causing the development and rehabilitation of that certain multi-plex cinema project (the"Project'), in the downtown area of the City of San Bernardino(the "City'). State of California on the real property more specifically identified in Exhibit "A" attached hereto and incorporated herein by this reference, (the"Property'). B. Pursuant to this Agreement. the Agency shall have the obligation to make available, on a non-exclusive basis, approximately one thousand seven hundred (1,700) peak hour parking spaces, and approximately one thousand one hundred (1,100) non-peak hour ® parking spaces, also c it non-exclusive basis (the peak and the non-peak spaces to be made available shall be refe I to herein as the "Parking Spaces'). which may include public street parking, for the use ' the Developer, the tenants, the subtenants, the concessionaires. the patrons, the customers nd the licensees of the Project. and their respective employees, agents, patrons and customers(singularly a "Pemittee"and collectively,the"Permittees"). The Parking Spaces are to be provided without charge to the Permittees. or are to be subject to validation, as applicable, and are to be within a radius of 1.600 feet from the center point of the Property. As used herein, "peak hours" shall mean weekday evenings after 6:00 p.m. and weekends, and after 10:00 a.m. on all recognized holidays. C. As of the date of this Agreement, the Agency has verified that the Downtown Improvement Site Plan (the "Improvement Plan"). dated November 23, 1998, prepared by Ludwig Engineering, satisfies the requirements of the Conditional Use Permit No. 97-01, and related conditions of approval for the Project (collectively, the "City Conditions") and that the City has approved the Improvement Plan. D. This Agreement, without limitation, is for the purpose of identifying the Parking Spaces which are available to the Developer and the granting by the Agency to the Developer of non-exclusive easements with respect to such Parking Spaces, as more particularly described below. NOW, THEREFORE, in consideration of the recitals set forth above in this Agreement and for other good and valuable consideration the receipt and sufficiency of which are hereby © acknowledged.the Agency and the Developer agree to the following: Terms Section I. Recitals Incorporated. The recitals set forth above are true and correct and are incorporated herein by reference. Section 2. Conflict with Amended and Restated 2008 Disposition and Development Aereennent. In the event of any conflict or ambiguity with regard to the provisions of the DDA and this Agreement, the provisions of the DDA will govern. Any defined term contained herein which is not defined herein shall have the meaning indicated in the DDA. Section 3. Identification of Parkin,. (a) As of the date of this Agreement• the Agency has surveyed the parking available within 1600 feet of the Property, and the Agency has identified two thousand one hundred seventy-five (2.175) parking spaces which are available for the non-exclusive use of the Permittees. These two thousand one hundred seventy-five(2.175) parking spaces consist of (i) nine hundred forty-seven (947) public curbside parking spaces within the public street rights-of= i way, and(ii) one thousand two hundred twenty-eight (1,128) off-street parking spaces. As of the date of this Agreement, the lands on which the one thousand two hundred twenty eight (1.228) off-street parking spaces referenced in the preceding sentence are situated on the parking lots more specifically identified in Exhibit "B" hereto, which Exhibit "B" is attached hereto and incorporated herein by reference (singularly, a "Parking Lot' and collectively, the "Parking © Lots"). The public curbside parking spaces together with the parking spaces identified in Exhibit "B." to the extent of one thousand seven hundred (1.700) of said spaces during peak hours and one thousand one hundred (1,100) of said spaces at non-peak hours, are the Parking Spaces as defined herein. (b) Subject to the terns and conditions of this Agreement, the Agency hereby grants to the Developer for the benefit and use of the Property a non-exclusive right and easement for pedestrian and motor vehicle ingress and egress by the Permittees onto the lands described in Exhibit "B" for the purpose of parking motor vehicles thereon. The Agency may from time to time hereafter grant to third parties non-exclusive rights to enter and use the Parking Spaces on any of the Parking Lots for the purpose of parking motor vehicles thereon, and no such grant by the Agency to a third party of entry or use of such Parking Spaces shall be deemed individually or severally to create a surcharge, or an undue burden or an uncontemplated use of the Parking Spaces situated on the Parking Lots. (c) The Agency, at its sole cost. shall remove, re-designate, or revise any signage, markings or other posted time restrictions with respect to the oft-street Parking Spaces identified in Exhibit "B" hereto and post signage identifying each of the Parking Lots as available for use by the Permittees in accordance with this Agreement, or in lieu thereof; the Agency shall provide, to the extent practical, alternative Parking Spaces which satisfy the criteria described in Recital B of this Agreement and post signage identifying such alternative Parking Spaces as available for use by the Pennittees in accordance with this Agreement, such that during the term of this Agreement there shall be not less than the minimum number of required peak hour Parking Spaces and non-peak hour Parking Spaces available for use by the Pernnittees which are not reserved for the exclusive use of other users and which are not limited in duration in time such that the use thereof is not feasible for the use of the Permittees. (d) No right to use the Parking Spaces on any of the Parking Lots may be created or transferred by the Developer or by a Permittee in favor of a third party except: (i) in connection with the creation by the Developer of a possessory interest in the Project. or (ii) in connection with a security assignment of the interest of the Developer in this Agreement as collateral for a financing secured by the Project, or(iii) in connection with the permitted transfer of the interest of the Developer in the Project as set forth in the DDA. (e) Nothing in this Agreement shall be deemed to create either an otter of dedication or a dedication to public use for off-street public parking purposes of any Parking Spaces on the Parking Lots. Subject to the satisfaction of the applicable provisions of this Agreement, the Agency retains the sole and absolute discretion to close or withdraw from use any off-street Parking Spaces on the Parking Lots; provided, however in no event shall the Agency provide the Developer with less than the required minimum number of Parking Spaces for the Pennittees' use. (f) Agency agrees that it shall not amend or modify the Improvement Plan in any manner which would cause the Property to be in violation of the City Conditions. Section 4. Free Parkin,to Pennittees. The Agency agrees that the use of the Parking Spaces shall be without fees or charges to the Permittees, either because no charge is assessed therefore, or. if applicable in the future, because the Agency shall provide validation of parking tickets to be issued for off-street parking at no charge to the Developer or to the Pennittees. It is acknowledged by the parties hereto that none of the parking identified in Exhibit "B," as of the date of this Agreement, is subject to metering or other parking charge. Section 5. Imposition of Parkin!-, Char_e. Notwithstanding Section 4 to the contrary. the Developer agrees that it will impose on all tenants of the Project an annual charge for parking-related expenses (the "Parking Charge"). The charge will be imposed on each tenant who occupies any portion of the Project and will be equivalent to Five Dollars and Seventy-Five Cents ($5.75) per square foot of leasable area of completed improvements occupied by the tenant. The amount of the Parking Charge will increase annually in an amount equal to increases in the Consumer Price Index, commencing one (I) year after the date of the issuance of the first Certificate of Occupancy for the Project. The Developer shall pay all Parking Charges collected by it to the Agency within ten (10) days after the receipt thereof: The Agency shall retain the Parking Charges so received as and for its time and expenses in making available the parking as provided in this Agreement. In the event that the Developer tails to: W impose on any tenant the obligation to pay the Parking Charge as required hereby, (ii) collect the amounts so imposed, or (iii) is unable to collect said amounts, the Developer shall pay to the Agency a sum equal to the amount which should have been charged to and collected from said tenant under the provisions of this Section. Section 6. Recordation of Agueenment. Immediately upon transfer of title of the Property by the Agency to the Developer, this Agreement shall be recorded with the County Recorder's Office for the County of San Bernardino, State of California (the "County Recordee'), which shall serve to bind the Agency and the Developer, and all of their respective successors, assigns and tenants, and the Property, to the provisions hereof for the term of this Agreement. Section 7. Duration of Asencv Obligation. (a) The Agency's obligations with respect to parking as set forth in this Agreement shall continue for a period of sixty-five (65) years(the"Covenant.Duration') from the date after the execution hereof. unless extended in an agreement executed by both of the parties hereto, or their successors or assigns, which extension agreement must be: (i) approved by the governing body of the Agency, and (ii) must be recorded with the County Recorder. (b) The Developer has been advised by the Agency that the Redevelopment Plan, and the Agency's ability to perform the obligations under this Agreement, has a termination date of August 6, 2013. The parties acknowledge that the Agency's obligation to provide the Parking Spaces as set forth in this Agreement is essential for the development, for the rehabilitation and for the continued viability of the Project, and that the Developer would not have acquired the Property without the Agency's covenant and agreement to provide the Parking Spaces for the Covenant Duration. Accordingly, the Agency agrees that not later than August 6. 2013, it will identify the reasonable parking needs of the Project for the period of time from the termination of the Redevelopment Plan to the conclusion of the Covenant Duration. Such parkins needs shall in no event be less than the parking requirements under the City codes then applicable to the Project considering the then current uses and reasonably contemplated uses of the Property for the remaining period of the Covenant Duration; provided, however,that nothing contained in this Agreement may require the Agency to provide morn than one thousand seven hundred (1,700) peak hour Parking Spaces or more than one thoc and one hundred (1,100) non-peak hour Parking Spaces. The Agency agrees to take such r -tion as may be required, excluding the construction of a parking structure, in order to ensr r that the Agency's obligations under this ._-. ..... ...... . d Agreement will be satisfied from and after the termination of the Redevelopment Plan until the conclusion of the Covenant Duration (the "Alternative Parking Arrangements'). Nothing herein shall be deemed to require the establishment of Alternative Parking Arrangements prior to the termination of the Redevelopment Plan if the Parking Spaces otherwise then meet the in compliance ' his A��reement, so long as the Agency has made p requirements of a Arran with this Section 7 which assure that the Alternative Parking a b gements will be implemented -' �� i s shall meet the criteria described in Recital as necessary. The Alternative Parkin,, Arran emer t B of this Agreement. (c) On or before August 6. 2013, the Agency shall provide the Developer with reasonable evidence of a binding agreement or other commitment establishing the Alternative Parking Arrangements under tents and conditions consistent with this Section 7, and otherwise reasonably satisfactory to the Developer. The Agency's failure to perform its obligations under this Section 7, including• but not limited to, timely providing to the Developer reasonable evidence of the Alternative Parking Arrangements, shall be deemed a material breach of this Agreement by the Agency, subject to the notice of default and opportunity to cure provisions of Section 13 hereof: If the Redevelopment Plan is extended so as to terminate at a later date than August 6. 2013, the dates for the Agency's performance of its obligations under this Section 7 shall be correspondingly adjusted such that the Alternative Parking Arrangements are provided for and established prior to such later date of expiration of the Redevelopment Plan. Section 8. Alternative Parkins. (a) The Agency shall have the right at any time during the term of this Agreement, to provide, to the extent practical, alternative parking for all or any of the Parking Spaces situated on any of the Parking Lots, provided that such alternative parking is within the 1.600 foot radius referenced in Section 3 above. The use by the Developer and by the Pennittees of any such alternative parking as may hereafter be provided by the Agency in accordance with Section 8(b) shall be subject to the terms and conditions of this Agreement. Nothing contained in this Agreement shall be deemed to require the Agency to provide in excess of one thousand seven hundred (1,700) Parking Spaces at peak hours or one thousand one hundred (1,100) Parking Spaces at non-peak hours. I (b) The Agency has the right to develop or close any Parking Lot and, to the extent practical, provide alternative parking. I (d) Subject to compliance by the Agency with the applicable provisions of this Agreement, the Developer shall execute such instructions in recordable form as the Agency may reasonably request to acknowledge the release of the effect of this Agreement upon any lands of the Parking Lots. or upon such other lands of the Agency which may hereafter be designated by therAgency as alternative parking in accordance with this Agreement. Section 9. Reduction of Parkins Oblieation. The number of parking spaces to be provided by the Agency under this Agreement may, at the Agency's option. be reasonably reduced if the use of the Project is changed and as a result less parking is required under applicable City codes. Any reduction shall be proportional to the cause of the reduction. If after such reduction the use of the Project is changed again and as a result greater parking is required under applicable City codes, the number of parking spaces required to be provided by the Agency shall be increased to the level required but the Agency's obligation may never exceed the total of one thousand seven hundred (1,700) peak hour spaces and one thousand one hundred (1,100) non-peak hour spaces. Adjustments of the necessary parking spaces consistent with the provisions of this Section may be made from time to time as changes in the use of the Project occur. Section 10. Temporary Interruotion of Parkin . During any temporary intenuption in availability of any of the Parkin;; Spaces, the Agency will use its best efforts to provide alternative parking within the 1600 foot radius on land owned or controlled by it, or as close to the Property as possible if sufficient Parking Spaces are not available within said radius. The Agency shall make reasonable efforts to see that all maintenance and repair work is undertaken in a manner which does not unreasonably interfere with the Developer's use of the Property. Section 11. Maintenance of Parkins Spaces. The Agency agrees that to the extent any of the Parking Spaces are located on land owned by the Agency, it will maintain said land and the Parking Spaces located thereon in a safe and clean condition, including providing adequate lighting, repairing and patching surface areas, the replacement of surface areas, as needed, and painting structures. if any, as needed. The Agency shall have no obligation to provide security measures or personnel for any such area. The Agency shall indemnify, defend and hold the Developer tree and harmless from any and all loss and liability resulting from or arising out of the Agency's failure to maintain and repair the Parking Spaces to be maintained by the Agency as provided herein, including but not limited to any loss or liability arising by reason of the death or injury of any Permittee or damage or destruction of any property, including any property owned by any Permittee; provided, however, the Agency will have no liability or obligation under this Section whenever any loss, injury or death to person or property results from the wrongful acts or omissions of or from the negligence of the Developer or of any Permittee. If any of the Parking Spaces are located on land owned by any party other than the Agency, and such Parking Spaces are not maintained in a clean and safe condition, including providing adequate lighting, repairing and patching of surface areas, replacement of surface areas as needed, and painting of structures, if any and if needed. but excluding security measures or personnel. then such spaces shall be excluded for purposes of determining the Agency's compliance with its obligations under this Agreement. Section 12. Rules and Re¢ulations. The Agency shall have the right to adopt, from time to time, such rules and regulations as it deems reasonable or necessary with respect to the use of any Parking Space located on land owned or controlled by the Agency. The Agency may enforce, or authorize third parties to enforce, such rules and regulations, in a non-discriminatory manner, against all users of the Parking Spaces located on land controlled by the Agency. The Agency may authorize the City to enforce all applicable traffic laws and municipal parking facility regulations against all the users of the Parking Spaces located on land owned or controlled by the Agency pursuant to Vehicle Code Section 21107.8 and other Inv. Notwithstanding any other language contained in this Section, any such rules or regulations which limit the tine period for parking by any Permittees on lands owned or controlled by the rs+_i-n 6x-rani.i b i Agency within 1,600 feet of the Property may not impose a time limitation for parking of less than four(4)hours. Section 13. Default. In the event of any default under the terns of this Agreement by any party hereto, the non-defaulting party shall first give written notice to the defaulting party of the matter giving rise to such default, specifying the steps which must be taken to cure such default. In the event of a monetary default, the defaulting party shall have ten (10) days after receipt of notice to cure such default. In the event of a non-monetary default, the defaulting party shall have thirty (30) days from receipt of notice to cure said default, or if a cure reasonably requires in excess of thirty (30) days to cure, to commence said cure, provided that the defaulting party diligently pursues said cure to completion. All notices given in accordance with this Agreement shall be given in the manner provided in Section 6.01 of the DDA. If, after defaulting fails to cure the default the non- passage of the applicable notice period, the det � art party defaulting party shall have all rights and remedies against the defaulting party at law or in equity, including, but not limited to, the right of specific performance. A default of this Agreement shall not be a default under the DDA. Section 14. Conflict of Interest. No member, official or employee of the Agency having any conflict of interest, direct or indirect, related to this Agreement shall participate in any decision related to this Agreement. The parties hereto represent and warrant that they do not have knowledge of any such conflict of interest. Section 15. Warranty Against Payment of Consideration for Agreement. The Developer warrants that it has not paid or given, and will not pay or give, any third party money or other consideration for obtaining this Agreement. Third parties, for the purposes of this Section, shall not include persons to whom fees are paid for professional services if rendered by attorneys, financial consultants, accountants, engineers, architects or the like when such fees are considered necessary by the Developer. Section 16. Nonliability of Agency Officials and Employees. No member, official or employee of the Agency shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or to its successor, or on any obligations under the ternis of this Agreement, except for gross negligence or willful acts of such member,officer or employee. Section 17. Inspection of Books and Records. The Agency shall have the right at all reasonable times at the Agency's cost and expense to inspect the books and records of the Developer pertaining to the Project and/or the Property as necessary for the Agency, in its reasonable discretion, to enforce its rights under this Agreement. Matters discovered by the Agency shall not be disclosed to third parties unless required by law or unless resulting from or related to the pursuit of any remedies or the assertion of any rights by the Agency hereunder. Section 18. AJnorovals. Notwithstanding any language to the contrary contained herein, this Agreement, and any amendments hereto, shall not be binding on the Agency until approved by the Commission of the Agency and executed by an authorized representative of the Agency. The Interim Executive Director of the Agency is authorized to sign on his own authority amendments to this Agreement which are of routine or technical nature, including designation of alternative Parking Spaces from time to time. Section 19. Attorneys' Fees. If either party hereto tiles any action or brings any action or proceeding against the other arising out of this Agreement. or seeks the resolution of disputes pursuant to Section 20 hereof, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement shall be considered as "attorneys' fees" for purposes of this Section. Section 20. Dispute Resolution. Any controversy or dispute arising from or relating to this Agreement shall be heard by a referee pursuant to California Code of Civil Procedure Sections 638(1)• 640. and 641 through 645.1, inclusive, by the Court in an action or proceeding to be commenced only in San Bernardino County, State of California. Upon commencement of any such action or proceeding, the parties hereto shall endeavor to agree upon and have appointed by the Court a retired Superior Court .fudge or Court of Appeal Justice from the then current list of retired judges and justices available to serve as referees in San Bernardino County. If the parties are unable to agree upon the referee within five (5) business days after service of the complaint• or the referee selected by the parties is unable or unwilling to serve and the parties cannot agree on an alternate within five (5) business days after notice thereof, then either party may make application to the Court in which the action or proceeding is pending for the appointment of a judge or justice from said list to serve as the referee. In connection therewith, the parties each shall be entitled to submit three (3) names from said list, each party shall be entitled to strike one (I) name proposed by the other party and the appointment shall be made from the remaining four (4) names. unless each of them are unwilling or unable to serve• in which case the Court shall exercise its powers under California Code of Civil Procedure Section 640. The referee shall try any or all of the issues in the action or proceeding, whether of fact or of law, and shall report a statement of decision thereon. The parties shall advance, in equal shares• the fees and expenses of the referee selected pursuant to this Section 20. However, the referee's statement of decision shall award the party that• in light of the issues litigated and the referee's decision on those issues. was the more successful in the reference all of its actual attorneys' fees reasonably incurred in good faith, all of its fees and expenses associated with the reference, including without limitation, any administrative fees, room charges• and referee fees. and those costs allowable in an action at law. Notwithstanding anything contained herein to the contrary, the parties hereto expressly preserve all rights and remedies they may have at law or in equity unless and until a referee is appointed pursuant to this Section 20, including, without limitation,the right to seek provisional remedies or injunctive relief: Section 21. Signa_e. Promptly after execution of this Agreement, the Developer and the Agency shall confer regarding the Agency's signage obligations under Section 3(c) above. No later than October 1. 2010, the Agency shall submit to the Developer for its reasonable review and approval a signage plan describing the work to be perfonned by the Agency in order to comply with its obligations with respect to signage as described in Secion 3(c) above. The Agency shall perform and complete its obligations with respect to signage ider Section 3(c) on or before the earlier of. (i) the scheduled opening date of the multi-plex t pen business at the Project, or(b) within 90 calendar days of the close of escrow for the Proper .. If the Developer lv,isian.uw� i R desires additional signage on public streets or highways adjacent to the Parking Lots or within the vicinity of the Property in other to further identity the availability of the Parking Spaces for use by Perntittees of the Project and to provide information concerning convenient routes to and from the Parking Lots and the Property, the Developer shall submit to the Agency, a signage plan for such additional signage. All the Developer's signage, including the location, size, specification, design and height thereof, shall be subject to the review and approval procedures established by the Agency and this Agreement shall not be deemed a modification or waiver of any such procedures for review and approval of the Developer's signage. Further,the Developer recognizes that some or all of the signage proposed by the Developer may be subject to the regulations• restrictions or rules of the City, and that nothing contained herein may be deemed a waiver of such regulations restrictions or rules, as they exist as of the date of this Agreement or as they may exist in the future. The Agency hereby grants to the Developer a license with respect to any portion of the Parking Spaces owned and controlled by the Agency for the purposes of const ruction, maintenance, operation, repair and replacement of the signage which may be approved in accordance with the Agency's review and approval procedures for signage, including the right of pedestrian and vehicular ingress and egress, over• across, and through such portion of the Parking Spaces consistent with designated entrances, exits, lanes. sidewalks or pathways which may exist in such Parking Spaces• for the purposes of maintaining, repairing and replacing such signage. The Developer's additional signage shall be maintained, repaired and replaced by the Developer, at its sole cost and expense. The Agency agrees that it will reasonably cooperate with the Developer to obtain approval of any Developer's signage which the Agency has approved but which requires the approval of any other agency, including the City. Nothing in this Section shall release or relieve the Agency of its obligations with respect to the identification of the Parking Spaces and the signage on the Parking Lots elsewhere in this Agreement. Section 22. Mortgagee Protection. The parties acknowledge and agree that any mortgagee acquiring an interest in the Property, whether by foreclosure or deed in lieu of foreclosure, or otherwise: (i) shall succeed to the rights of the Developer under this Agreement including, but not limited to, the right to use the Parking Spaces• and the license granted to the Developer hereby in connection with signage, and (ii) shall be entitled to exercise all rights of the Developer provided hereunder. Section 23. Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective, successors and assigns. Section 24. Entire Agreement. This Agreement shall be executed in counterpart originals, each of which is deemed to be an original. This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof, except for the pertinent provisions of the DDA. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations on the subject matter hereof: Section 25. Merger. None of the terms, covenants, agreements or conditions contained in this Agreement shall be deemed to be merged with the grant deed conveying title to the Property to the Developer as contemplated in the DDA and this Agreement shall continue in fall force and effect after conveyance of such title. 4121-XI 5a 1093.7 9 Section 26. Amendments. All waivers or amendments of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency and the Developer. Section 27. Counterpart s. This Agreement may be executed in multiple counterparts. all of which shall be deemed originals and with the same effect as if all parties had signed the same document. All of such counterparts shall be construed together and shall constitute one instrument. 1ST I_81{MI IM1II 1 10 i i IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written. AGENCY Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Dated: By: Emil A. Marzullo. Interim Executive Director Approved As To Form: By: geney Counsel © DEVELOPER Maya San Bernardino Cinemas. LLC. a California limited liability company Dated: By: Name: Title: [NOTARY TO BE ATTACHED] 4.c_1 s 1 5n.MO.i I I Exhibit "A" Legal Description of the Property The Property referred to in this Agreement is situated in the County of San Bernardino, State of California,and is described as follows: Parcel I of Parcel Map No. 15038, in the County of San Bernardino. State of California, as per plat recorded in Book 186 of Parcel Maps, Page(s) 14 and 15, records of said County. Exhibit °B" Parking Lots U3 1 _I___1 o D Ito �1I igI e `� ° ICI ti C A p `` Fmnh3tred � J Corm Street iI�4 ® I o y ❑ J ( �/ o E In Third Street Lj r:5-11 \n J \\ I >, Sewnd Street 3 [� LL } K6q 5eN1 Public Parking Lot A 199 Public Parking Lot B 65 Public Parking Lot C 70 Public Parking Lot D 83 Public Parking Lot E 96 © Public Parking Lot F 732 Public Curbside Parking 900 Total 2145 anti-.�saiaoi.i 13