Exhibit 10.1
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omissions have been indicated by asterisks ("*****"), and the omitted text has
been filed separately with the Securities and Exchange Commission.
SUBLEASE AGREEMENT
BETWEEN
PLAYBOY ENTERTAINMENT GROUP, INC.,
a Delaware corporation,
AS LANDLORD,
AND
BROADCAST FACILITIES, INC.,
a Delaware corporation
AS TENANT,
FOR
PREMISES LOCATED AT
3030 Andrita Street, Los Angeles, California
DATED: April 1, 2008
SUBLEASE AGREEMENT
This Sublease Agreement (this "Lease") is dated as of April 1, 2008 (the
"Effective Date"), and is by and between PLAYBOY ENTERTAINMENT GROUP, INC., a
Delaware corporation ("Landlord"), and BROADCAST FACILITIES, INC., a Delaware
corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Kingston Andrita LLC, a Delaware limited liability company, as
landlord ("KA LLC") and Landlord, as tenant, entered into that certain Agreement
of Lease, dated as of September 20, 2001 (as amended, modified and supplemented
as further described on Exhibit A attached hereto, the "Master Lease") with
respect to certain Premises (as defined in the Master Lease) located at 3030
Andrita Street, Los Angeles, California;
WHEREAS, KA LLC assigned its interest in the Master Lease to OLP Los
Angeles, Inc., a California corporation, and Andrita GERP LLC, a California
limited liability company, as tenants-in-common (collectively, "Master
Landlord");
WHEREAS, Landlord sublet a portion of the Premises to SITV, INC., a
Delaware corporation ("SITV"), pursuant to that certain Sublease, dated July 15,
2005 (as amended, modified and supplemented as further described on Exhibit A
attached hereto, the "SITV Sublease");
WHEREAS, Tenant is purchasing from Landlord and its affiliates certain
assets and assuming certain liabilities constituting the Andrita Studios
business (the "Business") pursuant to the terms of that certain Asset Purchase
Agreement, dated as of the Effective Date, by and among Tenant, as buyer,
Landlord and Andrita Studios, Inc., a Delaware corporation, collectively, as
Seller, and Playboy Enterprises, Inc. (the "Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement, Landlord and Tenant are
entering into that certain Services and Facilities Agreement, effective as of
the Effective Date, pursuant to which Tenant is providing certain services to
Landlord (the "Service Contract"); and
WHEREAS, in connection with the sale of the Business, Landlord desires to
sublease to Tenant and Tenant desires to sublease the Premises from Landlord for
the term, at the rent, and upon and subject to the covenants, agreements, terms,
conditions, limitations, expectations and reservations herein contained and
further subject to the rights of SITV pursuant to the SITV Sublease.
NOW, THEREFORE, in consideration of mutual rights, responsibilities and
covenants hereinafter set forth and upon the terms, covenants and conditions
hereinafter set forth:
1. DEFINED TERMS.
Capitalized words not otherwise expressly defined herein (including in the
recitals hereto) shall have the meaning set forth in the Master Lease.
2. PREMISES
2.1 Identification of Premises. Landlord for and in consideration of the
rents, covenants and agreements hereinafter reserved and contained on the part
of Tenant to be paid, kept and performed, has
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demised and subleased, and by these presents, does demise and sublease, unto
Tenant and Tenant does hereby take and lease, upon and subject to the covenants
and conditions hereinafter expressed which Tenant agrees to keep and perform,
the Premises, subject further to those matters of record affecting title set
forth on Exhibit B attached hereto.
2.2 Parking Facilities. Tenant shall be entitled to use all parking spaces
provided to Landlord pursuant to the terms of the Master Lease, provided that
(i) Tenant, its employees, agents and invitees shall be subject to all terms and
conditions set forth in the Master Lease and (ii) such parking shall be subject
to rules and regulations imposed by Master Landlord from time to time as
provided in the Master Lease.
3. TERM
3.1 Initial Term. The initial term of this Lease shall commence on the
Effective Date and continue through the date which is one (1) day prior to the
expiration or earlier termination of the Master Lease (or until such term shall
sooner cease and expire as hereinafter provided), unless this Lease shall be
extended as hereinafter provided (the "Term").
3.2 Conditions to Effectiveness. This Lease shall have no effect unless
and until (i) Master Landlord shall have given its written consent hereto in
accordance with the provisions of the Master Lease and (ii) the Business is
acquired by Tenant in accordance with the terms of the Purchase Agreement. If
Master Landlord refuses to give its consent to this Lease, this Lease shall be
null and void, and the parties shall have no further obligations hereunder.
4. RENT
4.1 During Term. Tenant shall pay directly to Master Landlord, without
demand and without any deduction or right of setoff except as expressly provided
herein, all Base Rent, Impositions, Additional Rent and any other sums due and
owing from Landlord to Master Landlord pursuant to the Master Lease during the
Term of this Lease including, without limitation, any cost of insurance and any
other charges that Landlord is required to reimburse to Master Landlord pursuant
to the terms of the Master Lease (collectively, the "Lease Payments"). On the
date each Lease Payment is made by Tenant, Tenant shall deliver written notice
to Landlord that such Lease Payment (and the amount thereof) has been paid,
together with the federal reference number for the wire transfer. All Rent (as
defined below) due and payable under this Lease shall be paid directly to Master
Landlord by wire transfer pursuant to instructions provided by Master Landlord
from time to time (or at such other place as Master Landlord may direct by
written notice to Landlord and Tenant) at least two (2) days prior to the date
that such Rent is due from Landlord to Master Landlord pursuant to the terms of
the Master Lease. Notwithstanding anything to the contrary contained in this
Lease, the Master Landlord's receipt from Tenant of any Lease Payments in
accordance with the terms of this Lease shall fully satisfy any and all
obligations Tenant may have with respect to such Lease Payments under this Lease
or the Master Lease. Notwithstanding Tenant's agreement to make Lease Payments
directly to Master Landlord, Landlord shall remain liable for the payment of
Lease Payments pursuant to the terms and conditions of the Master Lease. Tenant
acknowledges that unless a Direct Lease Event (as defined in Section 5.1(c)) has
occurred, Master Landlord's acceptance of any payment from Tenant as aforesaid
shall not be deemed to create any privity of contract or estate between Master
Landlord and Tenant under this Lease.
4.2 Partial Months. If the Term of this Lease shall commence other than on
the first day of a month, Rent for such month shall be prorated for such month
as applicable.
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4.3 Rent Defined. "Rent", as used herein, shall mean Base Rent, Additional
Rent, Impositions and any other sums due and owing from Tenant to Landlord
pursuant to the terms of this Lease.
4.4 No Set-Off. Tenant covenants to pay without notice or demand and
without deduction or set-off except as expressly provided herein, all Rent, at
the times and in the manner in this Lease provided.
4.5 Net Lease. It is the intention of Landlord and Tenant that the Rent
herein specified shall be net to Landlord during the Term of this Lease.
Accordingly except as otherwise expressly provided herein, all costs, expenses,
and obligations of every kind relating to the Premises during the Term of this
Lease, which may arise or become due from Landlord pursuant to the terms of the
Master Lease, shall be paid by Tenant, and Landlord shall be indemnified by
Tenant against such costs, expenses and obligations except as otherwise
expressly provided in this Lease.
4.6 Acts of Invitees. Any liability or costs incurred by Landlord under
the Master Lease as a result of the negligence or willful acts of Tenant, its
employees, customers, guests, invitees and/or anyone else on the Premises at the
invitation of Tenant shall be Rent hereunder and shall be immediately due and
payable to Landlord following demand therefor.
4.7 Tenant's Taxes. Tenant shall be responsible for and shall pay, before
delinquency, all municipal, county or state taxes assessed during the Term of
this Lease against any leasehold interest in this Lease or personal property of
any kind, owned by or placed in, upon or about the Premises by Tenant.
4.8 Late Payment Charge and Interest. If Tenant fails to make any payment
of Rent within five (5) days of the due date thereof and if Landlord makes such
payment of Rent to the Master Landlord, then (i) Tenant shall, in addition to
making such delinquent payment, pay to Landlord a late charge equal to five (5%)
percent of the late Rent payment which shall accrue and become immediately due
and payable to Landlord as Rent hereunder and (ii) such unpaid amounts shall
bear interest from the original due date thereof to the date of payment at the
rate per annum provided in Article 5 of the Master Lease. If Tenant has timely
made payment to Master Landlord of any then due Lease Payments, in no event
shall Tenant be subject to any late payment fees or charges, penalties, or any
additional premiums of charges whatsoever. Notwithstanding anything to the
contrary contained herein, any late fees and/or interest required to be paid by
Tenant hereunder with respect to any delinquent payment ("Tenant Late Fees")
shall be paid directly to Landlord for the sole benefit of Landlord, except to
the extent that Master Landlord is entitled to collect late fees and/or interest
pursuant to the terms and conditions of the Master Lease with respect to such
delinquent payment, in which case Landlord shall pay to Master Landlord the late
fees and/or interest due and payable to Master Landlord, but subject to the
terms and conditions of Section 4.1 hereof.
4.9 Tenant's Representation. Tenant represents and warrants to Landlord
that Tenant has the financial resources to perform its obligations under this
Lease including, without limitation, the payment of Rent as contemplated herein.
5. MASTER LEASE
5.1 Subject to Master Lease.
(a) Notwithstanding anything to the contrary contained herein, it is
expressly understood and agreed by and between Landlord and Tenant that
this Lease is a sublease and
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is subject to the Master Lease, as supplemented by that certain Consent
to Sublease Agreement dated of even date herewith (the "Master Landlord
Consent") and, subject to the non-disturbance provisions set forth in
the Master Landlord Consent, this Lease is subject to and subordinate
to the Master Lease and all terms and conditions thereof as otherwise
provided in the Master Lease and, subject to Section 25, to all things
to which the Master Lease is subject and subordinate.
(b) If the Master Lease expires or terminates for any reason in
accordance with the terms and conditions of the Master Lease, this
Lease shall automatically terminate as between Landlord and Tenant on
the date of the expiration or termination of the Master Lease. Upon any
such expiration or termination of this Lease, the parties hereto shall
thereupon be relieved of all liability and obligation hereunder,
excepting liabilities and obligations (i) which accrued or arose prior
to the date of such termination or expiration or (ii) relating to or
arising from any breach hereof or any Event of Default which occurred
prior to said date of expiration or termination.
(c) If (i) Master Landlord has elected, at its sole option, to
terminate the Master Lease following an Event of Default (as defined in
the Master Lease) by Landlord (as tenant) thereunder or (ii) the
interest of Landlord under this Lease is transferred (or surrendered or
terminated) to Master Landlord by reason of Landlord's Event of Default
(as defined in the Master Lease) under the Master Lease or by reason of
assignment of the Master Lease (or any similar device) in lieu of
transfer (or surrender or termination) following Landlord's Event of
Default (as defined in the Master Lease) under the Master Lease, then,
so long as no Event of Default by Tenant is continuing under this
Lease, this Lease shall subject to the terms of the Master Landlord
Consent continue in full force and effect as a direct sublease between
Master Landlord and Tenant in accordance with the Master Landlord
Consent (the items set forth in (i) and (ii) above being referred to as
a "Direct Lease Event"). Upon the occurrence of a Direct Lease Event,
Landlord's rights, title and interest under this Lease shall be
terminated.
5.2 Compliance with Master Lease. Tenant acknowledges that Tenant has been
provided a copy of the Master Lease and that Tenant has reviewed the Master
Lease and, subject to the terms of the Master Landlord Consent, accepts all of
the terms, covenants, provisions, conditions and agreements contained in the
Master Lease, all of which are made a part of this Lease as though fully set
forth herein. Tenant covenants and agrees that Tenant, its agents, contractors,
sublessees, licensees, concessionaires or invitees will not violate or breach
the terms, covenants or conditions of the Master Lease, and Tenant, its agents,
contractors, sublessees, licensees, concessionaires or invitees will not breach
such terms, covenants, or conditions or cause a default thereunder or cause the
Master Lease to be terminated or forfeited.
5.3 Tenant's Obligations under Master Lease. Except as expressly provided
otherwise in this Lease and the Master Landlord Consent, (i) Tenant specifically
agrees to comply with and fully perform all of the requirements and obligations
of Landlord (as tenant) under the Master Lease and (ii) Tenant assumes and
agrees to keep, observe and perform all of the agreements, conditions, covenants
and terms of the Master Lease on the part of Landlord (as tenant) to be kept,
observed and performed and shall be and become liable for the non-performance
thereof occurring on and after the Effective Date with respect to any portion of
the Premises or to Tenant's tenancy under this Lease.
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5.4 Rights of Landlord Under Master Lease. Landlord hereby grants to
Tenant the right to enforce the Landlord's rights under the Master Lease and the
Master Landlord's obligations under the Master Lease, except for (i) Landlord's
right to exercise any termination option under the Master Lease or (ii)
Landlord's rights under Article 15 or Article 36 of the Master Lease, and
provided that Tenant shall have no right to extend or renew the term of the
Master Lease without the prior written consent of Landlord, which may be granted
or withheld in the sole discretion of Landlord.
5.5 Modification of Master Lease. This Lease shall also be subject to, and
Tenant accepts this Lease subject to, any amendments and supplements to the
Master Lease made subsequent to this Lease; provided, however, that Landlord
shall obtain the prior written consent of Tenant (not to be unreasonably
withheld, conditioned or delayed) in the case of any amendment or supplement to
the Master Lease.
5.6 Notices Under Master Lease. Landlord agrees to promptly give Tenant
copies of (i) all default notices received from Master Landlord and (ii) any
other notices received from Master Landlord which relate to matters which have
an affect on Tenant's rights or obligations under this Lease.
5.7 Performance of Obligations by Master Landlord. With respect to all
obligations, agreements and services to be performed or furnished by Master
Landlord, Tenant shall look solely to the Master Landlord for the performance
thereof, and no failure on the part of the Master Landlord to perform such
obligations, agreements or services shall constitute a breach of the obligations
of Landlord under this Lease. Subject to the terms and conditions of Section
5.4, Landlord expressly grants to Tenant all of Landlord's rights and remedies
under the Master Lease to enforce, at Tenant's sole cost and expense, against
Master Landlord the full compliance by Master Landlord of its obligations
thereunder except as otherwise expressly provided herein.
5.8 Subordination, Non-Disturbance and Attornment Agreement. At the
request of Master Landlord, Tenant shall execute a subordination,
non-disturbance and attornment agreement ("SNDA") in favor of Master Landlord or
its lenders or ground lessor, as applicable, subject to and in accordance with
the terms of the Master Lease and Article 25 below.
5.9 Right to Direct Lease. In the event Master Landlord agrees to
terminate the Guaranty securing Landlord's obligations under the Master Lease
provided by Playboy Enterprises, Inc. (the "Master Lease Guaranty"), Landlord
agrees to (i) use commercially reasonable efforts to cooperate with Tenant in
obtaining Master Landlord's consent to an assignment of the Master Lease to, and
assumption of the Master Lease by, Tenant and (ii) assign to Tenant all of its
right, title and interest under the Master Lease promptly upon obtaining such
Master Landlord consent; provided, however, that in the event Landlord retains
the right to occupy a portion of the Premises pursuant to the Service Contract
and Section 11(a) below, Landlord and Tenant shall enter into such further
sublease arrangements in form and substance reasonably satisfactory to Master
Landlord, Landlord and Tenant as may be necessary to preserve such right of
occupancy on the same terms as set forth in Section 11(a) hereof and the Service
Contract. Upon any assignment and assumption as set forth above, provided that
no Event of Default by Tenant has occurred and is continuing hereunder, this
Lease shall terminate.
6. COMPLIANCE WITH LAWS
Tenant agrees, at its own cost and expense, to keep the Premises in such
order and condition as shall conform to all the orders, rules and regulations of
all municipal, state and federal departments, boards, commissions and
governmental agencies now existing or hereafter created in all material respects
and, at its own cost and expense, promptly execute and comply in all material
respects with all laws,
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rules, ordinances and regulations, now in force or hereafter enacted which
affect the Premises in accordance with the terms of Section 13.1 of the Master
Lease. Tenant further agrees to comply, at Tenant's cost and expense, with the
reasonable recommendations and reasonable requirements of any insurance company
which insures or participates in insuring the Premises against loss by fire or
other casualty; provided, however, that the foregoing requirement shall only
apply with respect to insurance companies providing coverage required to be
maintained by Tenant pursuant to Article 8 hereof and shall be subject to the
general rights of contest set forth in Section 13.2 of the Master Lease.
7. CONDITION OF PREMISES
7.1 Acceptance by Tenant. Tenant's taking possession of the Premises or
any portion thereof shall be conclusive evidence against Tenant that the
Premises or such portion thereof, as the case may be, were in good order and
satisfactory condition when Tenant took possession. Tenant accepts the Premises
subject to the existing SITV Sublease which will be assigned by Landlord to
Tenant as of the Effective Date pursuant to an Assignment and Assumption
Agreement in the form attached hereto as Exhibit C.
7.2 "As Is" Condition. No promise of Landlord to alter, remove, improve,
redecorate or clean the Premises or any part thereof, and no representation
respecting the condition of the Premises or any part thereof, have been made by
Landlord to Tenant, unless the same is expressly stated herein or made a part
hereof, and Tenant agrees that acceptance of possession of the Premises shall be
in an "as is, where is" condition for all purposes of this Lease. Landlord has
neither made nor does hereby make any representations or warranties, express or
implied, with respect to the fitness of the Premises for any particular use or
with respect to zoning or any licenses, permits, certificates or similar
governmental approvals required for Tenant's use of the Premises as provided
herein.
8. INSURANCE
8.1 Master Lease Requirements. During the entire Term of this Lease,
Tenant shall, at Tenant's sole cost and expense, maintain in full force and
effect any and all insurance policies that Landlord is required at any time or
from time to time to obtain as tenant under the Master Lease pursuant to the
terms and conditions of the Master Lease including, without limitation, Section
6.1 (b) through (g) thereof. To the extent that Landlord is required to
reimburse Master Landlord for any insurance obtained by Master Landlord pursuant
to the terms of the Master Lease, such charges shall be deemed Rent owing from
Tenant to Landlord (and paid to Master Landlord) hereunder.
8.2 Additional Insurance Coverages. During the entire Term of this Lease,
Tenant shall, at Tenant's sole cost and expense, maintain in full force and
effect each of the following types of insurance policies:
(a) in the event Tenant vacates and leaves the Premises unoccupied
by its employees or those of an approved subtenant, Tenant shall also pay for,
any incremental costs for premiums for such insurance during any period that the
Building remains unoccupied (it being understood and agreed by Tenant that if
the Premises remain vacant or abandoned by Tenant for an extended period of time
that Landlord or Master Landlord may require or be obligated to obtain special
coverages insuring a vacant building); and
(b) any other commercially reasonable types of insurance coverage in
such commercially reasonable amounts covering the Premises and Tenant's
operations therein, as may be reasonably required by Landlord or Master Landlord
from time to time.
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8.3 Companies; Forms. All policies of insurance shall be kept in full
force and effect continuously throughout the Term of this Lease, shall be
written and issued by companies authorized to do business in the State of
California, and shall be in form and substance reasonably acceptable to Landlord
and, to the extent applicable, Master Landlord and otherwise be in compliance
with all of the requirements set forth in Article 6 of the Master Lease.
8.4 Persons and Interests Insured. Tenant shall cause Landlord and its
respective agents or such other persons as Landlord shall from time to time
require (including Landlord's lenders, Master Landlord, and Master Landlord's
lenders), to be additional insureds, as their interests may appear, under the
policy or policies carried by Tenant under this Section 8 (except for any
workers' compensation insurance required under Section 6.1(d) and 6.1(e)(ii) of
the Master Lease) with a special endorsement, if necessary, to insure Master
Landlord and Landlord that any acts of Tenant (or anyone for whose acts Tenant
is responsible or liable, including its employees, agents, officers or invitees)
shall not invalidate or preclude coverage for Master Landlord and Landlord.
8.5 Cancellation Notices. All policies of insurance carried by Tenant
shall contain provisions that the same shall not be canceled, terminated, or
changed without at least thirty (30) days prior written notice to Tenant,
Landlord, Master Landlord and their respective agents.
8.6 Evidence of Insurance. Standard certificates of all insurance policies
required to be carried by Tenant shall be deposited with Landlord and Master
Landlord upon the execution of this Lease. Standard certificates of renewal of
all policies of insurance or any additional insurance required by Master
Landlord or Landlord pursuant to the terms of this Lease shall be deposited with
Landlord as soon as practicable but in no event less than two (2) business days
prior to the date on which such certificates must be delivered to Master
Landlord pursuant to the terms of the Master Lease.
9. WAIVER OF SUBROGATION RIGHTS
Whenever (a) any loss, cost, damage or expense resulting from fire, or
other cause is incurred by either of the parties to this Lease or anyone
claiming by, through or under it in connection with the Premises, and (b) such
party is then either covered in whole or in part by insurance with respect to
such loss, cost, damage or expense, or required under this Lease to be so
insured, then the party so insured (or so required) hereby releases the other
party from any liability said other party may have on account of such loss,
cost, damage or expense to the extent of any amount recovered by reason of such
insurance (or which could have been recovered, had insurance been carried as so
required under this Lease) and waives any right of subrogation which might
otherwise exist in or accrue to any person on account thereof, provided that
such release of liability and waiver of the right of subrogation shall not be
operative in any case where the effect thereof is to invalidate such insurance
coverage or increase the cost thereof (provided that in the case of increased
cost the other party shall have the right, within thirty (30) days following
written notice, to pay such increased cost thereupon keeping such release and
waiver in full force and effect).
10. UTILITIES
Tenant agrees to pay or cause to be paid all charges for gas, water
(including user charges imposed by any law, ordinance or regulation for the
treatment and disposal of sewage, industrial wastes and other wastes in
connection with Tenant's use of the Premises) electricity, light, heat or power,
telephone or other communication service (including security or fire alarm
services) and other utilities used, rendered or supplied upon or in connection
with the Premises throughout the Term of this Lease,
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including, without limitation, any charges due under the Master Lease from
Landlord as the tenant thereunder, if any.
11. RIGHTS RESERVED TO LANDLORD
Landlord shall have the following rights, exercisable without notice to
and without effecting an eviction or disturbance of Tenant's use or possession
or giving rise to any claim for set-offs, or abatement of Rent:
(a) during the term of the Service Contract, (i) unrestricted access
to the Andrita Radio Studio (as defined in the Service Contract), the Dedicated
Office Facilities (as defined in the Service Contract), the edit bays to be used
in connection with the services to be provided by Tenant under the Service
Contract (except as otherwise provided in (ii) below) and the common areas of
the Premises at all times in connection with Landlord's business at the
Premises, and (ii) escorted access, upon reasonable prior notice to Tenant, to
the shared space technology areas, including without limitation, Room 192 and
related information technology infrastructure components and any location that
hosts equipment supporting technology and operations of Landlord's information
technology for the purposes of repairing, upgrading, maintaining and performing
similar actions with respect to Landlord's information technology infrastructure
at the Premises;
(b) escorted access to the Premises at all times during normal
business hours upon reasonable prior notice for purposes of inspecting the
Premises to ensure Tenant's compliance with its obligations under this Lease;
and
(c) subject to the terms of Section 20.7 below, at any time or
times, escorted access to the Premises to make repairs to or maintain the
Premises to the extent that Tenant fails to timely perform its obligations under
this Lease, and to perform any acts related to the safety, protection or
preservation thereof, provided that Landlord provides reasonable notice to
Tenant of the same and the Landlord shall cause as little inconvenience or
annoyance to Tenant as is reasonably necessary in the circumstances.
Upon any such entry, Landlord shall not unreasonably interfere with the business
operations of Tenant on the Premises. If Tenant shall not be personally present
to open and permit any entry into said Premises, at any time when an entry
therein for emergency purposes is necessary, Landlord or Landlord's agent(s) may
enter same by a master key or keycard, or may forcibly enter same, without
rendering Landlord or such agents liable therefor, and without, in any manner,
affecting the obligations, responsibility or liability whatsoever, for the care,
maintenance or repair of the Premises, except as otherwise herein specifically
provided and except as to any damage, injury or loss resulting from the gross
negligence or willful misconduct of Landlord upon such entry.
12. REPAIRS AND MAINTENANCE
Tenant shall, at Tenant's sole cost and expense, promptly make all repairs
and replacements and perform all maintenance required to be made or performed
under the Master Lease by Landlord as the tenant thereunder pursuant to Sections
11.1(b) and 11.2 of the Master Lease. Landlord shall not be obligated to make
repairs, replacements, or improvements of any kind upon the Premises whether
such repairs, replacements, or improvements to the Premises are interior or
exterior, structural or nonstructural, ordinary or extraordinary, foreseen or
unforeseen. In addition to the foregoing, Tenant shall keep the Premises
equipped with all safety appliances required because of Tenant's specific use of
the Premises. All such repairs or maintenance made or caused to be made by
Tenant shall be of equal or higher quality and class as the original work and
shall be made in compliance with the Requirements. Tenant hereby
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waives all rights it would otherwise have under California Civil Code Sections
1932(1) and 1942(a), or any successor statutes, to deduct repair costs from Rent
or terminate this Lease as a result of any failure by Landlord to perform its
maintenance or repair obligations, if any.
13. ALTERATIONS BY TENANT
13.1 Consent Required. Tenant's right to make changes, alterations,
improvements or additions or attach any signs to the Premises (collectively,
"Tenant Additions") shall be subject to and in accordance with the terms set
forth for "Alterations" in Article 12 of the Master Lease. With respect to any
Tenant Additions which would require the consent of Master Landlord under the
Master Lease, Tenant shall not make any such Tenant Additions without: (i) the
prior written consent of Master Landlord and (ii) the prior written consent of
Landlord, not to be unreasonably withheld or delayed. If Landlord consents to
any Tenant Additions requiring such consent, before commencement of such work or
delivery of any materials onto any part of the Premises, Tenant shall furnish
Landlord with plans and specifications and permits necessary for such Tenant
Additions, all in form and substance reasonably satisfactory to Landlord.
13.2 Tenant's Indemnification; Contractor's Insurance. Tenant agrees to
defend, hold harmless and indemnify Landlord from and against any and all
liabilities, costs and expenses of every kind and description (including, but
not limited to, reasonable attorneys' fees and costs) which may arise out of or
be connected in any way with any Tenant Additions performed by or on behalf of
Tenant. Tenant shall furnish Landlord with standard certificates of insurance
from all contractors performing labor or furnishing materials in connection with
any Tenant Additions, insuring Landlord and Master Landlord, against any and all
liabilities which may arise out of or be connected in any way with such Tenant
Additions.
13.3 Approved Contractors; Payments; Lien Waivers. The work necessary to
make such Tenant Additions shall be done at Tenant's expense by contractors as
reasonably approved by Landlord. Tenant shall promptly pay to Tenant's
contractors when due, the cost of all such work. Upon the Landlord's request
following the completion of any Tenant Additions, Tenant shall furnish Landlord
with copies of contractors' and subcontractors' affidavits and full and final
waivers of lien and receipted bills covering all labor and materials expended
and used therein or therefor, all in form and substance reasonably satisfactory
to Landlord.
13.4 Compliance With Legal and Insurance Requirements. All Tenant
Additions shall comply with all insurance requirements applicable to the
Premises, and with all Requirements of all governmental bodies, departments or
agencies having jurisdiction over the Premises and/or the underlying real
property. Tenant shall permit Landlord to review and observe construction
operations in connection with any Tenant Additions, if Landlord requests to do
so, provided that Landlord shall have no duty to so review or observe.
13.5 Subject to Master Lease. Tenant's right to construct or install any
Tenant Additions as set forth in this Section shall be subject to Tenant
complying with all terms, conditions and requirements set forth in Article 12 of
the Master Lease as to any proposed Alteration.
14. RETURN OF PREMISES
14.1 Tenant's Obligations. At the termination of this Lease by lapse of
time or otherwise:
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(a) Tenant shall return the Premises in as good condition as when
Tenant took possession except for ordinary wear, any damage caused by Landlord,
its agents, employees or invitees and as otherwise provided in this Lease;
(b) Subject to the terms of the Master Lease, Tenant shall remove
any and all fixtures, equipment and personal property belonging to Tenant and
signs installed on the Premises by Tenant during the Term of this Lease (to the
extent required under the Master Lease);
(c) Upon surrender or termination of this Lease, Tenant shall
restore to Landlord any and all keys and keycards to the Premises either
furnished to, or otherwise procured by Tenant. In the event of the loss of any
keys so furnished by Landlord, Tenant shall pay to Landlord the cost thereof, as
well as any other costs associated with the loss of said keys or keycards; and
(d) Subject to the terms of the Master Lease, all Tenant Additions
in or upon the Premises, except movable furniture, fixtures and equipment
belonging to Tenant, whether placed there by Tenant or Landlord, shall be
Landlord's property and shall remain upon the Premises, all without
compensation, allowance or credit to Tenant; provided, however, that if prior to
such termination or within ten (10) business days thereafter Landlord so directs
by written notice, Tenant shall promptly, at Tenant's cost, remove the Tenant
Additions placed in or upon the Premises by Tenant and designated in the notice
and shall repair any damage caused by such removal, failing which Landlord may
remove the same and Tenant shall, upon demand, pay to Landlord the cost of such
removal and of any necessary restoration of the Premises.
14.2 Waiver. Tenant waives the provisions of California Civil Code
Sections 1932(2) and 1933(4) (and all similar or successor statutes) which
relate to the termination of leases when the thing leased is destroyed, and
agrees that such event shall be governed by the terms of this Lease.
14.3 Failure to Remove Trade Fixtures and Personal Property. All trade
fixtures, equipment and personal property belonging to Tenant and not removed
from the Premises prior to the termination of this Lease and not required by
Landlord or Master Landlord to have been removed as provided herein or in the
Master Lease, respectively, shall be conclusively presumed to have been
abandoned by Tenant and title thereto shall pass to Landlord under this Lease.
15. TENANT'S USE OF PREMISES
15.1 Uses Permitted. Tenant shall use and occupy Premises only for the
uses permitted pursuant to the Master Lease.
15.2 Rules and Regulations. Tenant agrees to comply with all rules and
regulations that Master Landlord may hereafter from time to time make for the
Premises pursuant to Master Landlord's rights under the terms of the Master
Lease.
16. ENVIRONMENTAL COMPLIANCE AND INDEMNITY
16.1 Compliance With Legal Requirements. During the entire Term of this
Lease, Tenant shall comply with all Laws now or at any time hereafter in effect
which regulate, relate to or impose liability or standards of conduct concerning
any Hazardous Materials (as defined in Section 20.4(d) of the Master Lease)
which affect Tenant's use of the Premises, and Tenant shall not permit the
Premises to contain, be used to store or otherwise used to handle any Hazardous
Materials except in accordance with the terms and conditions of Section 20.4(a)
of the Master Lease. As of the Effective Date, Landlord
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represents that, there is not and, to its Knowledge (as defined in the Purchase
Agreement), has not been any Hazardous Materials (including toxic mold) used,
generated, treated, stored, transported, disposed of, handled or otherwise
existing on, under, about or emanating from the Premises, except for quantities
of any Hazardous Materials stored or otherwise held in, on, under or about the
Premises in compliance with all Laws (as defined in Section 20.4(e) of the
Master Lease) in all material respects.
16.2 Disposals or Releases of Hazardous Materials. If any environmental
test, inspection or evaluation completed by or in connection with Tenant's
business or Tenant's occupancy or use of the Premises discloses a disposal,
release, threatened release or the presence of Hazardous Materials on, over,
under, from or affecting the Premises in violation of any Laws which has been
caused or permitted by, attributed or related to or otherwise arising out of the
use or occupancy of the Premises by Tenant or by anyone acting by, through or
under Tenant, including, without limitation, any of Tenant's agents, employees,
invitees, licensees, subtenants or assignees that requires cleanup or any other
remedial action, Tenant shall, at Tenant's sole cost and expense, immediately
cause such cleanup or any such remedial action to be completed to the extent
necessary to return the Premises to its prior state and in accordance with and
to the extent required by all applicable Laws and any orders and directives of
any applicable government authorities. Notwithstanding the foregoing, Tenant
shall not be responsible for the presence of Hazardous Materials in or about the
Premises which result from the underground migration of Hazardous Materials to
the Premises from other sites which is not caused, contributed to or exacerbated
by Tenant or by anyone acting by, through or under Tenant.
16.3 Remedial Work. Should a release of any Hazardous Materials onto or
from the Premises occur as a result of any intentional or unintentional act or
omission on the part of Tenant or any other person, Tenant shall immediately
notify Landlord thereof and, if such release is due to any act or omission of
Tenant or of anyone acting by, through or under Tenant, as soon as possible
thereafter Tenant shall conduct and complete or cause to be conducted or
completed any and all action and remedial work reasonably required to clean up
and remove all such Hazardous Materials in accordance with and to the extent
required by and in accordance with all applicable Laws and Section 20.4(a) of
the Master Lease.
16.4 Indemnification by Tenant. Tenant agrees to defend, hold harmless and
indemnify Landlord, Master Landlord, each of their respective officers,
directors, agents and employees, and with respect to each of the foregoing,
their respective agents, from and against all Claims (as defined below)
including, without limitation, reasonable attorneys' fees and other consultants'
and experts' fees, investigation or laboratory fees, court costs and litigation
expenses and any cleanup, remedial, removal or restoration work), arising out
of, or as a result of (a) the presence, use, disposal, release or threatened
release of any Hazardous Materials on, over, under, from or affecting the
Premises, or the land caused or permitted by, attributed or related to or
otherwise arising out of the use and occupancy of the Premises by Tenant or by
anyone acting by, through or under Tenant, including without limitation any of
Tenant's employees, agents, invitees, licensees, subtenants or assignees; (b)
the underground migration of Hazardous Materials to the Premises after the
Effective Date from other sites, which is caused by or attributed or related to
Tenant or by anyone acting by, through or under Tenant; (c) any violation of or
failure to comply with any Laws or any orders, requirements or demands of any
applicable governmental authorities which are related to any such presence, use,
disposal, release or threatened release of any Hazardous Materials caused or
permitted by, or related to or otherwise arising out of the use and occupancy of
the Premises by Tenant or by anyone acting by, through or under Tenant; or (d)
Tenant's failure to comply with any of the requirements of this Section 16.4.
16.5 Indemnification by Landlord. Landlord agrees to defend, hold
harmless and indemnify Tenant, its officers, directors, agents, employees, and
their respective agents, from and against all Claims
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including, without limitation, reasonable attorneys' fees and other consultants'
and experts' fees, investigation or laboratory fees, court costs and litigation
expenses and any cleanup, remedial, removal or restoration work), arising out
of, or as a result of (a) the presence, use, disposal, release or threatened
release of any Hazardous Materials on, over, under, from or affecting the
Premises, or the land caused or permitted by, attributed or related to or
otherwise arising out of the use and occupancy of the Premises by Landlord or
anyone acting by, through or under Landlord (other than Tenant or anyone acting
by, through or under Tenant), including without limitation any of Landlord's
employees, agents, invitees, licensees, or assignees; (b) the underground
migration of Hazardous Materials to the Premises from other sites, which is
caused by or attributed or related to Landlord or by anyone acting by, through
or under Landlord (other than Tenant or anyone acting by, through or under
Tenant); or (c) any violation of or failure to comply with any Laws or any
orders, requirements or demands of any applicable governmental authorities which
are related to any such presence, use, disposal, release or threatened release
of any Hazardous Materials caused or permitted by, or related to or otherwise
arising out of the use and occupancy of the Premises by Landlord or by anyone
acting by, through or under Landlord (other than Tenant or anyone acting by,
through or under Tenant), whether prior to the Effective Date or during the term
hereof. Additionally, provided that Tenant does not disturb any asbestos at the
Premises, if any asbestos which is present at the Premises as of the date hereof
must be abated at any time during the term hereof in order to comply with Laws,
Landlord shall, at its costs and expense (or, pursuant to Section 20.4(b) of the
Master Lease, cause Master Landlord to, at Master Landlord's cost and expense)
encapsulate or otherwise abate the same to the extent necessary to comply with
such Laws.
16.6 Non-Exclusive. No part of the above and foregoing agreements to be
kept and performed by Tenant, are intended to be a substitute for, or a
limitation upon, each and every other agreement contained in this Lease to be
kept and performed by Tenant.
17. WAIVER OF CLAIMS AND INDEMNITY
17.1 Tenant's Waiver. To the extent permitted by law, and except for those
items subject to the Landlord's indemnification pursuant to Section 17.4 below,
Tenant waives and releases Landlord and Landlord's officers, directors,
contractors, agents and employees from all claims for damage to person or
property sustained by Tenant relating to:
(a) the Premises or any part thereof, becoming out of repair or
maintenance by Tenant or Master Landlord; or
(b) subject to the terms of Section 9 above, any accident in or
about the Premises unless due to the negligence or willful misconduct of the
Landlord or the Landlord's officers, directors, contractors, agents and
employees.
All property situated on the Premises and belonging to Tenant, its contractors,
agents or employees or visitors or any occupant of the Premises shall be
situated there at the risk of Tenant or such other person only. Unless such
property is the property of the Landlord (as occupant of a portion of the
Premises pursuant to the Service Contract), Landlord shall not be liable for
damage thereto or theft, misappropriation or loss thereof. Nothing contained in
this Section 17 shall be deemed or construed as an indemnification of Landlord
by Tenant of the negligence, tortuous conduct, or willful misconduct of Landlord
or any of Landlord's agents, employees or invitees in contravention of the
provisions of any applicable California landlord and tenant laws.
17.2 Limitation of Landlord's Liability. Landlord is not liable for any
injury or damage to any party happening on, in or about the Premises and its
appurtenances during the Term of this Lease, nor
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for any injury or damage to the Premises or to any property belonging to Tenant
or to any other party that may be caused by fire, breakage, or by the use,
misuse or abuse of any portion of the Premises (including, without limitation,
any of the common areas within the Premises, elevators, hatches, openings,
installations, stairways or hallways), nor the streets or sidewalk areas within
the Premises, or which may arise from any other cause whatsoever during the Term
of this Lease, unless caused by the Landlord's breach of the provisions of this
Lease or the Master Lease (excluding any breach of the Master Lease caused by a
breach of Tenant of its obligations hereunder), the negligence, tortuous
conduct, or willful misconduct of Landlord, its agents or employees. In no event
shall Landlord be liable to Tenant for consequential damages.
17.3 Indemnification by Tenant. Subject to Section 9 hereof, Tenant agrees
to defend, hold harmless, and indemnify Landlord and Master Landlord (which for
the purposes of this Section 17.3 shall include their officers, directors,
managers, employees, shareholders, and agents) from and against all claims,
liabilities, suits, obligations, fines, damages, penalties, costs, charges and
expenses including, but not limited to, reasonable attorneys' fees and costs
(collectively, "Claims") for injuries to persons and damage to, or the theft,
misappropriation or loss of, property arising from occurrences in or about the
Premises by reason of any of the following occurring during the Term hereof:
(a) each item set forth Section 17.1 (a) through (c), (f) and (h) of
the Master Lease, to the extent arising from any act or failure to act by
Tenant or its officers, agents, contractors, servants, employees,
licensees or invitees;
(b) any accident, injury (including death) or damage to any Person
or property occurring in, on or about the Premises or any part thereof or
in, on or about any street, alley sidewalk, curb, passageway, gutter, or
space comprising a part thereof or adjacent thereto;
(c) the negligence or willful misconduct of Tenant, its employees,
agents, and invitees;
(d) any failure on the part of Tenant to keep, observe, comply with
an perform any of the terms, covenants, agreements, provisions, conditions
or limitations contained in this Lease, the Master Lease as required
herein, or any other contracts and agreements affecting the Premises or
any part thereof, on Tenant's part to be kept, observed or performed;
provided, however that such indemnification shall not extend to Claims caused by
Landlord's breach of the provisions of this Lease or the Master Lease or the
negligence, tortious conduct, or willful misconduct of Landlord or Master
Landlord, or their agents, employees, or invitees; and further provided that in
no event shall Tenant be liable for any consequential damages.
17.4 Indemnification by Landlord. Subject to Section 9 hereof, Landlord
agrees to defend, hold harmless and indemnify Tenant (which for the purposes of
this Section 17.4 shall include its officers, directors, managers, employees,
shareholders, and agents) from and against all Claims for personal injury or
property damage arising from injuries to persons or damage to property in or
about the Premises caused by a breach by Landlord, its employees, agents or
invitees of any covenant or condition of this Lease or by the negligence,
tortious conduct, or willful misconduct of Landlord, its employees, agents or
invitees; provided, however, that in no event, shall Landlord be liable for any
consequential damages.
17.5 Defense of Claims, Etc. If any Claim is made or brought against
Landlord or Master Landlord by reason of any event described in Section 17.3
above, or against Tenant, by reason of any event described in Section 17.4
above, then, upon demand by the indemnified party, the indemnifying
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party shall resist, defend or satisfy such claim, action or proceeding in the
indemnified party's name, if necessary, by the attorneys for the indemnifying
party's insurance carrier (if such claim, action or proceeding is covered by
insurance), or by such other attorneys as the indemnified party shall approve,
which approval shall not be unreasonably withheld or delayed. Notwithstanding
the foregoing, the indemnified party may engage its own attorneys to defend it
or to assist in its defense and the indemnifying party shall pay the reasonable
fees and disbursement of such attorneys of the indemnified party.
17.6 Survival. The provisions of this Article 17 shall survive the
expiration or earlier termination of this Lease.
18. DAMAGE BY FIRE OR OTHER CAUSE
The provisions of Article 7 of the Master Lease shall be incorporated
herein. In the event of a casualty, Landlord shall have the same rights to
terminate this Lease as are available to Tenant with respect to the Master Lease
pursuant to Article 7 thereof and Tenant shall have the same rights to terminate
this Lease as are available to Landlord, as tenant, with respect to the Master
Lease pursuant to Article 7 thereof. Except as provided in this Section 18, no
damage or destruction of the Premises, shall entitle Tenant to surrender
possession of the Premises and terminate this Lease, nor shall there be any
suspension or abatement of Rent provided for pursuant to the terms of this Lease
as a result of such damage or destruction regardless of whether such damage or
destruction shall have been caused by reason of the fault or neglect of Tenant,
except and only to the extent that Rent (as defined in the Master Lease) is
abated under the terms of the Master Lease.
19. CONDEMNATION
19.1 Taking. If the whole of the Premises or Real Estate are taken or
condemned by any competent authority for any public or quasi-public use or
purpose, or if any part of the Premises is taken or condemned by any competent
authority for any public or quasi-public use or purpose and such taking would
prevent or materially interfere with Tenant's use of the Premises for the
purposes for which the Premises are then being used, the Term of this Lease
shall end upon, and not before, the date of termination of the Master Lease, if
applicable. In such event, the Base Rent and Additional Rent shall be
apportioned as of the date of such termination.
19.2 Partial Taking. If part of the Premises or Real Estate shall be taken
by any competent authority for any public or quasi-public use or purpose and
this Lease is not terminated as provided in 19.1 above, the Term of this Lease
shall not terminate, but the Rent payable during the then unexpired portion of
the Term of this Lease shall be reduced in the same proportion to the reduction
of Rent (as defined in the Master Lease) under the Master Lease.
19.3 Allocation of Award. Tenant shall have no right to any apportionment
of or share in any condemnation award or judgment for damages caused by or
resulting from any taking or condemnation of the Premises (including any Tenant
Additions) or underlying real property, whether partial or complete, and
Landlord shall be entitled to the whole of such award or judgment subject to the
terms of the Master Lease. Notwithstanding the foregoing, Tenant shall be
permitted to file its own separate claim for the value of its trade fixtures,
equipment and personal property and the cost of moving the same from the
Premises; provided, however, that Tenant's claim for any one or more of the
foregoing items or damages must be separately identified and not a part of and
included in the condemnation award or judgment to Landlord and shall not be
permitted to reduce Landlord's or Master Landlord's award.
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20. LANDLORD'S RIGHTS AND REMEDIES
20.1 Defaults by Tenant. If (i) Tenant defaults in the payment of Rent or
fails to maintain, renew or replace any Letter of Credit or Security Deposit as
required in accordance with Section 30 hereof and such default continues for
three (3) or more days after written notice from Landlord that the same is past
due, provided, however, that any such notice shall be in lieu of, and not in
addition to, any notice required under California Code of Civil Procedure
Section 1161; (ii) Tenant defaults in the prompt and full performance of any
other provision of this Lease and Tenant does not cure the default within
twenty-eight (28) days after written demand by Landlord or Master Landlord that
the default be cured (unless default is not reasonably capable of being cured
within such twenty-eight (28) day period, in which case Tenant shall have such
period of time as may be reasonably required to cure such default, provided that
Tenant commences the cure of such default within such twenty-eight (28) day
period, and thereafter diligently prosecutes such cure to completion, and
further provided that in no case shall the cure period hereunder be any longer
than the cure period with respect to such default as provided under the Master
Lease), provided, however, that any such notice shall be in lieu of, and not in
addition to, any notice required under California Code of Civil Procedure
Section 1161; (iii) Tenant enters into a Sublease Transfer without complying
with the provisions of this Lease and the Master Lease and does not cure the
default within twenty-eight (28) days after written demand by Landlord or Master
Landlord that the default be cured; (iv) any voluntary or involuntary petition
or similar pleading under any section or sections of any bankruptcy or
insolvency act shall be filed by or against Tenant; (v) any voluntary or
involuntary proceeding in any court or tribunal shall be instituted to declare
Tenant insolvent or unable to pay Tenant's debts or, to the extent permitted by
law, if Tenant is generally not paying its debts as they become due, or admits,
in writing, that it is unable to pay its debts as they become due; (vi) Tenant
makes an assignment for the benefit of its creditors; (vii) a trustee or
receiver is appointed for Tenant or for the major part of Tenant's property;
(viii) the leasehold interest of Tenant is levied upon under execution or is
attached by process of law; (ix) Tenant abandons the Premises; (x) Tenant fails
to observe or perform one or more of the terms, conditions, covenants or
agreements of any mortgage of Tenant's interest in this Lease beyond any
applicable notice or cure period and the same causes Landlord to be in default
under the Master Lease; or (xi) a default (beyond applicable cure periods) has
occurred under the Master Lease due to any negligence, act, or failure to act by
Tenant or by the Tenant's failure to perform its obligations as set forth herein
including, without limitation, any default under Section 21.1 (l) through (o) of
the Master Lease ((i) through (xi) above, each an "Event of Default"), then
Landlord may, if Landlord so elects but not otherwise, with or without notice of
such election and with or without any demand whatsoever, either terminate this
Lease and Tenant's right to possession of the Premises or, without terminating
this Lease, terminate Tenant's right to possession of the Premises. An election
by Landlord to terminate Tenant's right to possession of the Premises without
terminating this Lease shall not preclude a subsequent election by Landlord to
terminate this Lease.
20.2 Surrender of Possession. Upon termination of this Lease following an
Event of Default, whether by lapse of time or otherwise, or upon any termination
of Tenant's right to possession without termination of this Lease, Tenant shall
surrender possession and vacate the Premises immediately, and deliver possession
thereof to Landlord. Tenant hereby grants to Landlord full and free license to
enter into and upon the Premises in such event, with or without process of law,
and to repossess Landlord of the Premises as of Landlord's former estate and to
expel or remove Tenant and any others who may be occupying or within the
Premises and to remove any and all property therefrom, using such force as may
be necessary, without being deemed in any manner guilty of trespass, eviction or
forcible entry or detainer or conversion of property and without relinquishing
Landlord's rights to the Base Rent, Additional Rent or any other charges due
Landlord, or any other right given to Landlord hereunder or by operation of law.
Except for those notices and cure or grace periods expressly afforded Tenant
under Section 20.1, Tenant
15
waives the service of any demand for the payment of any Base Rent, Additional
Rent or any other charges hereunder or for possession and the service of any
notice of Landlord's election to terminate this Lease or to re-enter the
Premises following an election by Landlord under Sections 20.1 to terminate this
Lease or Tenant's right to possession, other than such demand and notice as is
prescribed by any statute in California and agrees that the breach of any
covenant or provision of this Lease by Tenant (after such election by Landlord)
shall, of itself, without the service of any notice or demand whatsoever,
constitute a forcible detainer by Tenant of the Premises within the meaning of
the statutes of the State of California.
20.3 Landlord's Rights After Event of Default.
(a) In addition to the rights set forth herein, following an Event of
Default hereunder, Landlord shall have all of the rights and remedies available
to Master Landlord pursuant to the terms of the Master Lease.
(b) If Landlord elects to terminate this Lease following an Event of
Default, then Tenant shall pay to Landlord, not as a penalty but as
consideration for the loss of Landlord's bargain, a sum equal to Landlord's
Damages (hereinafter defined) in payment of the damages Landlord incurred by
reason of Tenant's default. Landlord may draw on any Letter of Credit (as
defined in the Purchase Agreement) or use, apply or retain any Security Deposit
held by Landlord in accordance with Section 30.3 hereof to collect any such
Landlord's Damages. If Landlord elects to terminate Tenant's right to possession
only, without terminating this Lease pursuant to a right granted to Landlord
hereunder, then Landlord may, at Landlord's option, enter into the Premises,
remove Tenant's signs and other evidences of tenancy, and take and hold
possession thereof as provided in Section 20.2 without such entry and possession
terminating this Lease or releasing Tenant, in whole or in part, from Tenant's
obligation to pay Rent for the full Term of this Lease.
(c) After entry into possession without termination of this Lease,
Landlord, if and to the extent required by law, may relet the Premises or any
part thereof for the account of Tenant to any person, firm or corporation other
than Tenant for such rent, for such time and upon such terms as Landlord, in
Landlord's sole discretion, shall determine. Landlord shall not be required to
accept any tenant offered by Tenant or to observe any instructions given by
Tenant about such reletting. In any such case, Landlord may make repairs,
alterations and additions in or to the Premises and redecorate the same to the
extent deemed necessary or desirable by Landlord in order to restore the
Premises to the same condition as Tenant is required to maintain the Premises
under this Lease. Tenant shall, upon demand, pay the cost thereof, together with
Landlord's expenses of the reletting. If the consideration collected by Landlord
upon any reletting of the Premises for Tenant's account is not sufficient to pay
monthly the full amount of Rent reserved in this Lease, together with the cost
of repairs, alterations, additions, redecorating and Landlord's other costs and
expense of regaining possession and reletting the Premises, Tenant shall pay to
Landlord the amount of each monthly deficiency upon demand.
20.4 Removal of Tenant's Property. Any and all property which may be
removed from the Premises by Landlord pursuant to the authority of this Lease or
of law, to which Tenant is or may be entitled, may be handled, removed or stored
in a commercial warehouse or otherwise by Landlord at Tenant's risk, cost and
expense, and Landlord shall not be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not removed from the Premises or retaken
from storage by Tenant within thirty (30) days after the end of the Term shall
be conclusively presumed to have been abandoned by Tenant.
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20.5 Equitable Relief. If Tenant violates any of the terms and provision
of this Lease or defaults in any of its obligations hereunder, other than the
payment of Rent, such violation may be restrained or such obligation enforced by
injunction or other equitable action.
20.6 No Waivers. No delay or omission of the right to exercise any power
by Landlord shall impair any such right or power, nor shall any such delay or
omission be construed as a waiver of any default or as acquiescence therein. No
waiver by Landlord of any default of Tenant shall be implied to affect, and no
express waiver shall affect, any default other than the default specified in
such waiver and that only for the time and to the extent therein stated. No
receipt of money by Landlord from Tenant after the termination of this Lease,
the service of any notice, the commencement of any suit or final judgment for
possession shall reinstate, continue or extend the Term of this Lease or affect
any such notice, demand, suit or judgment. The various rights and remedies of
Landlord contained in this Lease are reserved to Landlord and shall not be
considered as exclusive of any other right or remedy, but shall be construed as
cumulative and shall be in addition to every other remedy available to Landlord
whether now or at any time hereafter existing at law, in equity, or by statute.
To the fullest extent permitted by law, Tenant hereby waives all rights of
redemption or relief from forfeiture under California Civil Procedure Sections
1174 and 1179, or under any other present or future law, in the event Tenant is
evicted or Landlord takes possession of the Premises by reason of any default of
Tenant.
20.7 Landlord's Right to Perform Tenant's Obligations. If at any time
during the Term of this Lease:
(a) Any damage to the Premises results from any act, omission or
neglect of Tenant or of Tenant's contractors, agents or employees (and Tenant
fails to repair the same as required in this Lease prior to the expiration of
the applicable cure period), Landlord may, at Landlord's option, repair such
damage and Tenant shall reimburse Landlord as Additional Rent, upon demand by
Landlord, for the total cost of such repairs in excess of the amount, if any,
paid to Landlord under insurance, if any, covering such damage; or
(b) Tenant at any time fails to make any payment or perform any
other act on its part to be made or performed under this Lease or under the
Master Lease as provided herein that will result in a default under the Master
Lease, Landlord may, at Landlord's sole option, upon not less than five (5) days
prior notice to Tenant (except in the event of an emergency, in which case
telephonic notice only shall be required), make such payment or perform such
obligation (including, without limitation, making any necessary repairs or
performing any necessary work on the Premises in the event of an emergency),
without waiving or releasing Tenant from any obligation under this Lease.
20.8 Landlord's Expenses. All reasonable sums paid by Landlord and all
costs, charges and expenses incurred by Landlord in connection with (a) the
exercise of any of the Landlord's rights under this Lease and (b) the
enforcement of Tenant's obligations hereunder, or any litigation, negotiation or
transaction in which Tenant causes Landlord, without Landlord's fault, to be
involved or concerned (including, but not limited to, reasonable attorneys' fees
and costs and interest and penalties for unpaid amounts due to Master Landlord
under the Master Lease or other charges required to be paid or reimbursed by
Tenant) shall be payable upon demand, together with interest thereon at the same
rate applicable to the late payment or nonpayment of Rent as provided in this
Lease.
20.9 Landlord's Damages. As used herein, the term "Landlord's Damages"
shall mean the sum of (i) the Rent specified in this Lease for the remainder of
the stated Term following termination of this Lease or of Tenant's right to
possession, (ii) any other sums or damages then due to Landlord
17
hereunder, and (iii) any other expenses, costs or damages (including, without
limitation, reasonable attorneys' fees and court costs and any damages or
deficiency in the reletting of the Premises) incurred by Landlord in connection
with any default hereunder or any corresponding default under the Master Lease.
20.10 Waiver of Jury Trial. Tenant and Landlord hereby each waive its
right of trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other, or with respect to any issue or
defense raised therein, including the right to an advisory jury (except for
personal injury or property damage), on any matters whatsoever arising out of,
or in any way connected with, this Lease, the relationship of Landlord and
Tenant, Tenant's use and occupancy of said premises, including summary
proceedings and possession actions, and any emergency statutory other statutory
remedy.
20.11 Venue. In the event of any dispute under the terms of this Lease,
the parties agree that the venue for settling the dispute will be placed in Los
Angeles County, State of California and none other.
20.12 Waiver of Right of Redemption. Tenant hereby expressly waives any
and all rights of redemption granted by or under any present or future laws in
the event of Tenant being evicted or dispossessed for any cause, or in the event
of Landlord obtaining possession of the Premises, by reason of the violation by
Tenant of any of the covenants and conditions of this Lease or otherwise. No
receipt of monies by Landlord from Tenant after the termination or cancellation
of this Lease, in any lawful manner, shall reinstate, continue or extend the
term of this Lease, or affect any notice theretofore given to Tenant, or operate
as a waiver of the right of Landlord to enforce the payment of fixed or
additional rent or rents then due, or thereafter falling due or operate as a
waiver of the rights of Landlord to recover possession of the Premises by proper
suit, action, proceeding or remedy. It is agreed that, after the service of
notice to terminate or cancel this Lease, or the commencement of suit, action or
summary proceeding, or any other remedy, or after a final order or judgment for
the possession of the Premises, Landlord may demand, receive and collect any
monies due, or thereafter falling due, without, in any manner, affecting such
notice, proceeding, suit, action, order or judgment. Any and all such monies
collected shall be deemed to be payments towards satisfying Tenant's obligations
to Landlord.
21. HOLDING OVER
If Tenant retains possession of the Premises or any part thereof after the
termination of this Lease by lapse of time or otherwise, Tenant shall pay
Landlord, in order to compensate Landlord for Tenant's wrongful withholding of
possession, and during such time as Tenant remains in possession, an amount
calculated at a rate equal to 200% of the Base Rent in effect immediately prior
to such termination, plus any other Rent determined to be due pursuant hereto,
plus all direct and consequential damages sustained by Landlord by reason of
Tenant's wrongful retention of possession. The provisions of this Section shall
not constitute a waiver of Landlord's right of re-entry or of any other right or
remedy provided herein or at law.
22. LANDLORD'S TITLE
Landlord's title is and always shall be paramount to the title of Tenant.
Nothing herein contained shall empower Tenant to do any act which can, shall or
may encumber the title of Landlord or the Master Landlord.
23. QUIET ENJOYMENT
So long as Tenant observes and performs its covenants and agreements
hereunder and no Event of Default has occurred and is continuing hereunder,
Tenant shall, at all times during the Term, peacefully
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and quietly have and enjoy possession of the Premises without any encumbrance or
hindrance by, from or through Landlord, its successors or assigns or any person
claiming by, through or under the Landlord, subject to the SITV Sublease.
24. ASSIGNMENT AND SUBLETTING
24.1 Restrictions on Transfer. Tenant shall not, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed, (i) assign, transfer or convey this Lease or any
interest hereunder; (ii) suffer to occur or permit to exist any assignment of
this Lease, voluntarily, involuntarily or by operation of law; (iii) sublet the
Premises or any part thereof; or (iv) otherwise transfer its interest in this
Lease where such transfer would require the consent of Master Landlord pursuant
to the terms of the Master Lease (each, a "Sublease Transfer"); provided
however, that (1) the foregoing shall not apply to Tenant's rights pursuant to
Section 10.1 of the Master Lease (and Landlord's consent shall not be required
in connection therewith), and (2) any Sublease Transfer to a person or entity
that is engaged primarily in the ownership and operation of adult television
entertainment shall be subject to Landlord's consent, which may be granted or
withheld in Landlord's sole and absolute discretion. Landlord's consent to any
Sublease Transfer, when required, shall not constitute a waiver of Landlord's
right to withhold its consent to any future assignment, subletting or transfer.
The consent by Landlord to any Sublease Transfer shall not in any way be
construed to relieve Tenant from obtaining the express consent of Landlord to
any further Sublease Transfer.
24.2 Advance Notice. When Landlord's consent to a Sublease Transfer is
required hereunder, Tenant shall give Landlord written notice of any proposed
Sublease Transfer which notice shall contain the name of the proposed sublessee
or assignee and the proposed principal terms thereof. Upon receipt of such
notice with respect to any such Sublease Transfer, Landlord shall have a period
of thirty (30) days to give notice to Tenant as to whether Landlord is prepared
to consent to such Sublease Transfer. If Landlord fails to give notice of its
consent within such thirty (30) day period, Landlord shall be deemed to consent
to such Sublease Transfer.
24.3 Consent of Master Landlord. To the extent consent thereto is required
by the terms of the Master Lease, no Sublease Transfer shall be effective unless
Tenant has obtained the written consent of Master Landlord pursuant to the terms
of the Master Lease.
24.4 Tenant Not Released. Notwithstanding anything to the contrary
contained herein, if Master Landlord and Landlord consent to any proposed
Sublease Transfer by Tenant, the original Tenant shall not be released from any
covenant or obligation under this Lease as a result of such Sublease Transfer.
25. MORTGAGES AND SECURITY INTERESTS
This Lease is subject and subordinate to (i) all ground or underlying
leases and the lien of any present and future mortgages and security interests
of any lender of Master Landlord, now and hereafter in force against the
Premises and to all renewals, modifications, consolidations, replacements and
extensions of such mortgages or security interests and to all advances made or
hereafter to be made upon the security of such mortgages and security interests
and (ii) all things to which the Master Lease is subject, subject in each case
to the terms and conditions of the Master Lease. Landlord hereby agrees that in
no event shall Landlord be permitted to grant a mortgage lien on or otherwise
encumber with a security interest its interest in the Master Lease.
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26. ESTOPPEL CERTIFICATE
Landlord and Tenant agree that, from time to time upon not less than ten
(10) business days prior notice by the requesting party, Landlord or Tenant, as
applicable, will deliver to the requesting party or to such other person or
persons as such requesting party shall designate in such notice, a statement in
writing certifying (a) that this Lease is unmodified and in full force and
effect, and contains the full agreement between Landlord and Tenant (or, if
there have been modifications or additional agreements, that this Lease is in
full force and effect as modified and identifying the modifications thereof or
additional agreements), (b) the dates to which the Base Rent, Additional Rent,
Impositions and other charges due under this Lease have been paid, and (c) that,
insofar as each party knows, the other party is not in default under any
provision of this Lease and has performed all of the obligations to be performed
by such party to date (or, if either party has knowledge of any default by other
or of any unperformed obligation by the other, a statement of the nature
thereof).
27. BROKERAGE
Landlord and Tenant represent and warrant to each other that they have had
no dealings with any broker or agent in connection with this Lease and both
Landlord and Tenant hereby agree to hold harmless and indemnify each other from
and against all claims for costs (including reasonable attorneys' fees), expense
or liability for any compensation, commissions and charges claimed by any other
broker or agent who claims to have dealt with the other of them with respect to
this Lease or the negotiation thereof.
28. NOTICES
28.1 Timing of Notices. Whenever Tenant is required to give a notice or
make demand pursuant to the terms of the Master Lease as a result of Tenant's
assumption of Landlord's obligations under the Master Lease, the notice period
under this Lease shall be (i) two (2) days shorter than the applicable notice
period in the Master Lease to the extent that such notice period in the Master
Lease is at least six (6) days and (ii) half of the number of days of such
notice period in the Master Lease (as rounded down to the nearest whole integer)
to the extent that the notice period in the Master Lease is less than six (6)
days.
28.2 Manner of Giving Notices. Any notice or demand from Landlord to
Tenant or from Tenant to Landlord shall be in writing and shall be deemed to
have been duly given if delivered personally or mailed (by registered or
certified mail) or sent by nationally recognized overnight courier delivery
service, in any case, addressed, as follows:
For notices and communications to Tenant:
Broadcast Facilities, Inc.
3030 Andrita Street
Los Angeles, California 90065
Attn: William Tillson and Simon Bax
Fax: 323-344-4800
For notices and communications to Landlord:
Playboy Entertainment Group, Inc.
9242 Beverly Boulevard
Beverly Hills, CA 90210
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Attn: Roy Liebrecht
Fax: 323-276-4502
With copies to:
Playboy Enterprises, Inc.
680 North Lake Shore Drive
Chicago, IL 60611
Attn: Sue Shoemaker
Fax: 312-751-2818
Notices shall be deemed to have been given, in the case of personal delivery, on
the date of delivery; in the case of mailing, on the date which is three (3)
days after the date mailing thereof; and in the case of courier delivery
service, on the day after the date of deposit for delivery with said courier
delivery service.
28.3 Changes of Address or Addressee. By notice complying with the
requirements of Section 28.2, each party shall have the right to change the
address or addressee, or both, or add additional addresses for all future
notices and communications and payments to such party or for copies of notices
provided for above that are not required to be sent via certified or registered
mail or by overnight courier or other delivery service, but no such notice of a
change or additional addressee, by notice given hereunder shall be effective
until actually received by the other party.
29. SUCCESSORS AND ASSIGNS
29.1 Binding Nature. The covenants, agreements and obligations herein
contained, except as herein otherwise provided, shall bind, extend to and inure
to the benefit of Landlord and Tenant and their respective successors and
assigns, but nothing contained in this Section 29.1 shall be deemed or construed
to release Tenant from its obligation under Section 24 to first obtain the
written consent of Landlord or Master Landlord with respect to any Transfer.
29.2 Transfer by Landlord. In the event of any transfer of the interest of
Landlord in the Premises, the Landlord making such transfer (whether named
herein or its successor or assign) shall be relieved and fully released of and
from all covenants, agreements and obligations of Landlord contained in this
Lease for all periods of time subsequent to the effective date of such transfer
provided that the transferee assumes the obligations of Landlord hereunder in
writing from and after the effective date of such transfer. Notwithstanding any
provision to the contrary set forth herein or in the Master Lease, any transfer
of the interest of Landlord in the Premises to a direct competitor of Tenant
shall require Tenant's prior written consent, which consent may granted or
withheld in Tenant's sole and absolute discretion.
30. LETTER OF CREDIT
30.1 Delivery; Reductions. Pursuant to the terms of the Purchase
Agreement, Tenant shall deliver or cause to be delivered, within five (5)
business days of the Effective Date, a Letter of Credit (as defined in the
Purchase Agreement) to Landlord in an amount of Five Million Dollars
($5,000,000) (the "Original LOC Amount") as security for Tenant's performance of
its obligations under this Lease, which Letter of Credit shall be substantially
in the form attached hereto as Exhibit D. Any failure or refusal of the issuer
to honor the letter of credit shall be at Tenant's sole risk and shall not
relieve Tenant of its
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obligations hereunder. Provided that no Event of Default has occurred and is
continuing hereunder at the time of any proposed reduction in the amount then
available to be drawn under the Letter of Credit (the "LOC Amount"), the LOC
Amount may be reduced commencing on the first day of the first month after which
Tenant's remaining cumulative monetary obligations under this Lease including,
without limitation all Rent due hereunder for the remaining Term of the Lease,
are determined to be less than the Original LOC Amount as determined in
Landlord's reasonable judgment; provided that the LOC Amount may be reduced on a
monthly basis only to the extent that such reduced LOC Amount is not less than
an amount equal to such remaining cumulative monetary obligations hereunder as
determined in Landlord's reasonable discretion. Further, at such time as (i)
this Lease terminates in accordance with its terms and no Event of Default shall
have occurred and be continuing under this Lease, (ii) Landlord has assigned to
Tenant all of its right, title and interest in and to the Master Lease in
accordance with the terms of the Master Lease, (iii) a replacement Letter of
Credit has been issued in accordance with the provisions of this Section 30, or
(iv) Landlord and Tenant agree in writing, Tenant shall have the right to
terminate the Letter of Credit. Any and all fees and charges in connection with
the establishment, renewal, maintenance, replacement, amendment or drawing with
respect to the Letter of Credit shall be the sole responsibility of Tenant. For
the purposes of the penultimate sentence of this Section 30.1, "Landlord" shall
refer to Landlord or its transferee (as such term is used in the Letter of
Credit).
30.2 Renewals; Failure to Renew. If in any event (i) the Letter of Credit
shall terminate or expire or shall become unenforceable or illegal prior to the
date which is 180 days after the expiration of the Term (unless sooner
terminated in accordance with Section 30.1 above) or (ii) Tenant shall fail to
renew or replace the Letter of Credit (including, without limitation, the
failure to renew or replace an existing Letter of Credit (a) at least thirty
(30) days prior to the termination or scheduled expiration thereof or (b) as
required pursuant to Section 30.4 hereof) and provide evidence of such renewal
or replacement to Landlord at least thirty (30) days prior to the termination or
scheduled expiration thereof or, in the event that Landlord has required a
replacement Letter of Credit in accordance with Section 30.4 below, within
thirty (30) days following written notice as required in Section 30.4 below,
then Landlord shall have the right to draw the full LOC Amount and hold the
proceeds thereof as a security deposit for Tenant's obligations under this Lease
(the "Security Deposit"). Landlord shall not be required to hold any such
Security Deposit in a separate account or in an interest bearing account unless
otherwise required by any applicable laws. If Landlord elects not to draw on the
Letter of Credit, then Tenant shall be obligated to promptly cause a replacement
Letter of Credit to be issued in accordance with the terms hereof. If Landlord
elects to draw on the Letter of Credit and Tenant thereafter causes a
replacement Letter of Credit to be issued, Landlord shall refund the Security
Deposit to Tenant within ten (10) days following the issuance of such
replacement Letter of Credit.
30.3 Draws; Application of Security Deposit. If an Event of Default (other
than an Event of Default arising from the failure of Tenant to maintain, replace
or renew the Letter of Credit as required pursuant to Section 30.2 above) has
occurred and is continuing hereunder, including, but not limited to, the failure
to pay Rent (for the avoidance of doubt, in determining whether an Event of
Default has occurred with respect to the payment of Rent hereunder, Landlord
shall be entitled to rely upon a notice from Master Landlord that rent has not
been timely paid under the Master Lease, absent evidence reasonably acceptable
to Landlord to the contrary), then Landlord may draw on the Letter of Credit
(or, if applicable, use, apply or retain the whole or any part of any Security
Deposit and the interest accrued thereon, if any) to the extent required to cure
any monetary Event of Default or for the recovery of any Landlord's Damages
incurred as a result of an Event of Default to the extent that Landlord would be
entitled to such recovery pursuant to the terms of Section 20.3 above (the "Draw
Amount"). If Landlord shall so draw upon the Letter of Credit (or, if
applicable, use, or retain the whole or any part of any Security Deposit or the
interest accrued thereon, if any), Tenant shall upon demand immediately either
(i)
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cause the existing Letter of Credit to be increased by the Draw Amount or (cause
an additional Letter of Credit to be issued in the amount of the Draw Amount
such that, in either event, the total LOC Amount (by one or more Letters of
Credit) is equal to the amount of required security per Section 30.1 above or
(ii) deposit with Landlord a sum equal to the Draw Amount to cause the Security
Deposit to be equal to the amount of required security per Section 30.1 above.
Upon Tenant's satisfaction of either clause (i) or (ii) above, the Event of
Default in respect of which the Draw Amount was applied shall be deemed cured to
such extent.
30.4 Rating of Issuer. In the event that the credit rating of any issuer
of a Letter of Credit falls below Investment Grade (as defined below), then at
Landlord's written request, Tenant shall be obligated to deliver or cause to be
delivered a replacement Letter of Credit from a third party financial
institution with an Investment Grade rating as reasonably approved by Landlord
in the amount then required pursuant to Section 30.1 above no later than thirty
(30) days following written notice from Landlord. "Investment Grade" shall mean
a credit rating of Baa or better from Moody's Investors Service or BBB or better
from Standard and Poor's. Upon receipt by Landlord of the replacement Letter of
Credit, Landlord shall return the original Letter of Credit for cancellation to
the issuer bank and submit such certificate(s) as required by the terms of the
Letter of Credit to cause cancellation of the original Letter of Credit as
promptly as possible. Upon replacement as provided herein, the replacement
Letter of Credit shall be deemed the Letter of Credit for all purposes under
this Lease and the Purchase Agreement.
30.5 Transfers. The Letter of Credit and/or Security Deposit may be
transferred and assigned by the beneficiary thereof to any transferee that has
succeeded to Landlord's obligations under this Lease in accordance with Section
29.2 above. Any and all fees for a transfer and/or assignment charged by the
issuer of the Letter of Credit shall be payable by Tenant.
30.6 Substitute Letter of Credit. Upon 15 days written notice to Landlord,
Tenant may deliver a substitute a letter of credit (the "Substitute Letter of
Credit") in place of the Letter of Credit. Such Substitute Letter of Credit
shall be issued by a third party financial institution with an Investment Grade
rating as defined above as reasonably approved by Landlord in the amount then
required pursuant to Section 30.1 and shall have substantially the same terms
and conditions as the Letter of Credit. The Applicant under the Substitute
Letter of Credit may be Tenant, ***** or any affiliate of Tenant or ***** or any
other party designated in writing by Tenant or *****. Upon receipt by Landlord
of the Substitute Letter of Credit, Landlord shall return for cancellation the
Letter of Credit to the issuer bank and submit such certificate(s) as required
by the terms of the Letter of Credit to cause cancellation of the Letter of
Credit as promptly as possible. Upon substitution as provided herein, the
Substitute Letter of Credit shall be deemed the Letter of Credit for all
purposes under this Lease and the Purchase Agreement.
31. GENERAL PROVISIONS
31.1 Reserved.
31.2 Consents. Except as otherwise provided herein, whenever Master
Landlord's consent for any action is required under the Master Lease, Tenant
shall be obligated to obtain the consent of Master Landlord and Landlord, such
consent of Landlord not to be unreasonably withheld or delayed in the event that
Master Landlord grants its consent to such action.
31.3 No Partnership. Nothing contained in this Lease shall be deemed or
construed by the parties hereto or by any third party, to create the
relationship of principal and agent, partnership, joint venture or any
association between Landlord and Tenant, it being expressly understood and
agreed that no
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provisions contained in this Lease nor any acts of the parties hereto shall be
deemed to create any relationship between Landlord and Tenant other than the
relationship of Landlord and Tenant.
31.4 Entire Agreement. This Lease embodies and reflects the entire
agreement between Landlord and Tenant with respect to the subject matter herein.
This Lease supersedes all prior agreements and understandings between Landlord
and Tenant with respect to the subject matter herein. This Lease may be modified
or altered only by an agreement in writing between Landlord and Tenant.
31.5 Severability. If any term, section or provision of this Lease shall
be found to be invalid or unenforceable for any reason whatsoever, such
invalidity or unenforceability shall not affect the validity or enforceability
of any other term, section or provision of this Lease.
31.6 Governing Law. This Lease shall be governed by, interpreted under and
construed and enforced in accordance with the laws of the State of California.
31.7 Headings. The headings contained herein are for convenience only, and
shall not be used to define, explain, modify or aid in the interpretation or
construction of the contents.
31.8 Plurals; Grammatical Changes. The words "Landlord" and "Tenant"
wherever used in this Lease shall be construed to mean "Landlords" or "Tenants"
in all cases where there is more than one landlord or tenant, and the necessary
grammatical changes required to make the provisions hereof apply either to
corporations, partnerships or individuals, men or women, shall in all cases be
assumed as though in each case fully expressed.
31.9 Covenants and Conditions. All of the covenants of Tenant hereunder
shall be deemed and construed to be "conditions" if Landlord so elects as well
as "covenants" as though the words specifically expressing or importing
covenants and conditions were used in each separate instance.
31.10 Recording. Tenant covenants not to place this Lease or any
memorandum of this Lease on record without prior written consent of Landlord and
Master Landlord.
31.11 Counterparts. This Lease may be executed in one or more
counterparts, each of which shall constitute an original but all of which
together shall constitute one and the same instrument. Each counterpart may be
executed and delivered by facsimile or electronic transmission.
[Signature Pages Follow]
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IN WITNESS WHEREOF, Landlord and Tenant have, respectively, caused this
Lease to be signed as of the day, month and year first above written.
LANDLORD: PLAYBOY ENTERTAINMENT GROUP, INC.,
a Delaware corporation
By: /s/ Howard Shapiro
-----------------------------------------
Name: Howard Shapiro
Its: Vice President and Secretary
TENANT: BROADCAST FACILITIES, INC., a Delaware
corporation
By: /s/ Simon Bax
-----------------------------------------
Name: Simon Bax
Its: Chief Executive Officer and Secretary
Acknowledged by the undersigned Guarantor of Master Lease:
PLAYBOY ENTERPRISES, INC., a
Delaware corporation
By: /s/ Howard Shapiro
-------------------------------
Name: Howard Shapiro
Its: Executive Vice President, General Counsel and Secretary
Index of Exhibits
Exhibit A Master Lease
Exhibit B Title Matters
Exhibit C Form of Assignment of SITV Sublease
Exhibit D Form of Letter of Credit