Exhibit 10.2
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease ("Amendment") is made and entered into as
of August __, 2004, by and between Los Angeles Media Tech Center, LLC, a
Delaware limited liability company ("Landlord"), and Playboy Enterprises, Inc.,
a Delaware corporation ("Tenant").
RECITALS
Landlord and Tenant are parties to that certain Industrial Net Lease dated
April 23, 2002 as amended by a First Amendment to Lease dated June 28, 2002
(collectively "Lease"). The Building (as defined in the Lease), of which the
Premises are a part, is now on a separate legal parcel ("Parcel") from the
Industrial Center (as defined in the Lease). The Parcel is also subject to
conditions, covenants and restrictions ("CC&Rs") and reciprocal easements
("Easements") affecting it and other parcels of the former Industrial Center. By
this Amendment, Landlord and Tenant also intend to clarify and re-state Tenant's
obligations under the Lease with regard to changes occurring as a result of the
Industrial Center's division into separate legal parcels.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, conditions and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Tenant's Share of Operating Expenses. Subsection (a) of section 1.5 is
hereby deleted. Effective as of June 1, 2004, the number "71.25%" contained is
Section 1.5(b) for "Building Operating Expenses" is hereby deleted and replaced
by the number "75.73%" which reflects the percentage of the total building
square footage (83,252 square feet) which is contained in the Premises (63,049
square feet). Notwithstanding the foregoing, until such time as the Parcel is
assessed separately for Real Property Taxes (as that term is defined in section
10 of the Lease, Tenant shall pay 15.8% of the Real Property Taxes for the
Industrial Center. Tenant further acknowledges and agrees that at such time as
the Parcel is assessed as a separate tax parcel by any taxing authority,
"Operating Expenses" pursuant to section 4.2(a) of the Lease shall include, but
not be limited to, all Real Property Taxes (as that term is defined in section
10 of the Lease) for the Parcel.
2. Common Areas. Section 2.2 of the Lease is deleted and replaced by the
following:
2.2 Common Areas - Definition. "Common Areas" are all areas and
facilities outside the Premises and within the exterior boundary line of
the Parcel and interior utility raceways within the Premises that are
provided and designated by the Landlord from time to time for the general
non-exclusive use of Landlord, Tenant, and other tenants of the Parcel and
their respective employees, suppliers, shippers, tenants, contractors, and
invitees.
3. Operating Expenses. Section 4.2(a) of the Lease is hereby amended by
adding the following clauses at the end of Section 4.2(a):
(xii) any "Regular Assessments" (as defined in the CC&Rs), but
excluding the "Excluded Common Expenses" (defined in Section 4.2(b)(42)).
(xiii) any "Special Assessments" (as defined in the CC&Rs), but
excluding the Excluded Common Expenses, which Special Assessments are
assessed against Landlord by the "Association" (as defined in the CC&Rs)
solely as a result of the actions of Tenant.
4. Excluded Common Expenses. Section 4.2(b) of the Lease is hereby amended
by adding the following clauses at the end of Section 4.2(b):
(42) any of the following "Common Expenses" (as defined in the
CC&Rs) (collectively, the "Excluded Common Expenses"):
(i) any costs of acquisition or replacement of any "Common
Property" (as defined in the CC&Rs);
(ii) any unpaid "Assessments" (as defined in the CC&Rs)
that have not been paid in full by all other parties
liable for the same under the CC&Rs;
(iii) any premiums or other costs for directors and officers
insurance for the Association;
(iv) any costs of bonding any member of the "Board" (as
defined in the CC&Rs) or any professional, managing
agent, or other person or entity handling the funds of
the Association;
(v) any taxes paid by the Association;
(vi) any amounts paid by the Association or costs incurred
by the Association (including attorneys' fees and
costs) in connection with or arising out of the
discharge of any lien or encumbrance levied against
any Common Property or portions thereof;
(vii) any expenses incurred by the Association in connection
with the Common Property (other than costs for repair,
maintenance or renovation of the Common Property); and
(viii) any expenses incurred by the Association in connection
with the formation, preservation, operation or
governance of the Association, including without
limitation any expenses incurred by or in connection
with the Association under Article VII of the CC&Rs.
5. Real Property Taxes for the Parcel. Tenant acknowledges and agrees that
at such time as the Building is assessed as a separate tax parcel by any taxing
authority, "Operating Expenses" pursuant to section 4.2(a) of the Lease shall
include, but not be limited to, all Real Property Taxes (as that term is defined
in section 10 of the Lease) for the Parcel.
6. CC&Rs and Easements. Tenant acknowledges and agrees that the Premises,
the Building and the Parcel are subject to the CC&Rs and the Easements governing
all parcels in the Industrial Center. Tenant shall use its commercially
reasonable efforts to avoid violating the CC&Rs and the Easements. Landlord
shall not modify or amend the CC&Rs or the Easements in any manner that would
increase Tenant's obligations under the Lease in any material respect or that
would reduce Tenant's rights under the Lease in any material respect.
Notwithstanding the foregoing, nothing in the CC&Rs modifies the provisions of
the Lease (a) with respect to Tenant's obligation to pay Operating Expenses or
(b) with respect to the exclusions from Operating Expenses contained in the
Lease, all of which remain in full force and effect. Landlord hereby agrees and
acknowledges that neither the use of the Premises by Tenant as set forth in the
Lease or any signage which has been installed by Tenant pursuant to the Lease
violates the CC&Rs. Further, Landlord shall comply with its obligations under
the CC&Rs and Easements and shall use commercially reasonable efforts to enforce
its rights under the CC&Rs for the benefit of Tenant.
7. Landlord's Obligations. Section 7.2 of the Lease is hereby amended by
inserting the phrase "utility systems within the Parcel and shall use
commercially reasonable efforts to enforce all of its rights under the CC&Rs
with respect to " on the fourth line of Section 7.2 immediately after the phrase
"exterior walls of the Building and".
8. Letter of Credit. Section 16.27 of the Lease is hereby amended by
adding, at the end of such section, the following: "In the event Landlord
conveys or otherwise transfers its interest in the Premises, Tenant shall,
simultaneously with such conveyance or transfer, issue a replacement letter of
credit to such successor landlord, upon the same terms and conditions as set
forth in this Section 16.27. Any fee or expense charged by the issuing bank for
issuing the replacement letter of credit shall be paid by Landlord."
9. Tenant's Attorney's Fees. Landlord shall reimburse Tenant for its
reasonable attorney's fees incurred in the review and negotiation of this
Amendment within twenty (20) days of receipt of a copy of the statement from
Tenant's counsel to Tenant detailing such fees.
10. Reaffirmation. Except as otherwise provided in this Amendment, all
other terms and conditions of the Lease shall remain the same and the Lease
shall remain in full force and effect.
[signatures on following page]
IN WITNESS WHEREOF, the parties hereto have signed this Amendment as of
the date first written above.
Landlord: Tenant:
LOS ANGELES MEDIA TECH CENTER, LLC, PLAYBOY ENTERPRISES, INC.,
a Delaware limited liability company a Delaware corporation
By: LEGACY PARTNERS 2361, L.P., By: /s/ Howard Shapiro
a California limited partnership -----------------------------
Name: Howard Shapiro
By: ----------------------------
------------------------------- Title: Executive Vice President
Name: --------------------------
------------------------------ Date: September 23, 2004
Title: ---------------------------
------------------------------ Telephone:
Date: -----------------------
------------------------------ Facsimile:
Telephone: -----------------------
------------------------- Executed at: Chicago, IL
Facsimile: ---------------------
-------------------------
Executed at: By: /s/ Robert D. Campbell
----------------------- -----------------------------
Name: Robert D. Campbell
Address: 30 Executive Park, Suite 100 ----------------------------
Irvine, CA 92614 Title: Senior Vice President
Attn: Portfolio Vice President ---------------------------
By: AMB PROPERTY, L.P., Date: September 23, 2004
a Delaware limited partnership ---------------------------
By: AMB PROPERTY CORPORATION,
a Maryland corporation, its general partner
By:
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Name:
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Title:
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Date:
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Landlord's Address: Tenant's Address:
Pier 1, Bay 1 680 N. Lakeshore Dr.
San Francisco, CA 94111 Chicago, IL 60611
Attn: Administrative Services