Exhibit 10.23
SECOND AMENDMENT
THIS SECOND AMENDMENT (the "Amendment") is made and entered into as of the
21st day of December, 1998, by and between EOP-10960 WILSHIRE, L.L.C., a
Delaware limited liability company, doing business in California as EOP-10960
WILSHIRE, LLC, a Delaware limited liability company ("Landlord") and SABAN
ENTERTAINMENT, INC., a Delaware corporation ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (as successor in interest to 10960 Property
Corporation) and Tenant are parties to that certain lease dated the 17th day of
July, 1995, for space (the "Premises") in the building commonly known as 00000
Xxxxxxxx Xxxxxxxxx and the address of which is 00000 Xxxxxxxx Xxxxxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx (the "Building"), which lease has been previously amended by
Letter Agreement dated July 17, 1995; Storage Agreement dated July 17, 1995;
First Amendment to Office Lease dated August 1, 1997; Letter Agreement dated
August 29, 1997; and Letter Agreement dated January 26, 1998 (collectively, the
"Lease"); and
B. WHEREAS, pursuant to Section 29.21 of the Lease, Tenant has elected to
install certain telephone equipment upon the roof of the Building, and Landlord
and Tenant desire to amend the Lease to provide for the same subject to the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. Telecommunications Equipment.
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A. Tenant shall have the right to lease space on the roof of the Building
for the purpose of installing, operating and maintaining three (3)
Dish/Antennas or other communication devices approved by Landlord
(collectively, the "Dish/Antennas") as follows: (i) a 1.2 M KU-Band
SKY Satellite antenna that is 65.4 inches high and 47.98 inches wide
with a base of 52.62 inches by 52.62 inches ("Dish/Antenna 1"); (ii) a
24 inch Direct TV antenna that is 27.4 inches high and 25.2 inches
wide ("Dish/Antenna 2"); and (iii) a Comtelco Vertical Dipole antenna
that is two (2) feet in length, one-half ( 1/2) inch in diameter and
weighs one (1) pound (" Dish/Antenna 3"). The exact location of the
space on the roof to be leased by Tenant shall be designated by
Landlord (the "Roof Space"). Roof Space for Dish/Antenna 1 and
Dish/Antenna 2 shall be at no charge to Tenant. Tenant shall make
payments to Landlord for Roof Space for Dish/Antenna 3 in the amount
of Five Hundred and 00/100 Dollars ($500.00) per month (the
"Dish/Antenna Payments"). The Dish/Antenna Payments shall constitute
Additional Rent under the terms of the Lease and Tenant shall be
required to make these payments in strict compliance with the terms of
Article 4 of the Lease. Landlord reserves the right to relocate the
Roof Space as reasonably necessary during the Lease Term. Landlord's
designation shall take into account Tenant's use of the Dish/Antenna.
Notwithstanding the foregoing,
Tenant's right to install the Dish/Antenna shall be subject to the
approval rights of Landlord and Landlord's architect and/or engineer
with respect to the plans and specifications of the Dish/Antenna, the
manner in which the Dish/Antenna is attached to the roof of the
Building and the manner in which any cables are run to and from the
Dish/Antenna. The precise specifications and a general description of
the Dish/Antenna along with all documents Landlord reasonably requires
to review the installation of the Dish/Antenna (the "Plans and
Specifications") shall be submitted to Landlord for Landlord's written
approval no later than twenty (20) days before Tenant commences to
install the Dish/Antenna. Tenant shall be solely responsible for
obtaining all necessary governmental and regulatory approvals and for
the cost of installing, operating, maintaining and removing the
Dish/Antenna. Tenant shall notify Landlord upon completion of the
installation of the Dish/Antenna. If Landlord determines that the
Dish/Antenna equipment does not comply with the approved Plans and
Specifications, that the Building has been damaged during installation
of the Dish/Antenna or that the installation was defective, Landlord
shall notify Tenant of any noncompliance or detected problems and
Tenant immediately shall cure the defects. If the Tenant fails to
immediately cure the defects, Tenant shall pay to Landlord upon demand
the cost, as reasonably determined by Landlord, of correcting any
defects and repairing any damage to the Building caused by such
installation. If at any time Landlord, in its sole discretion, deems
it necessary, Tenant shall provide and install, at Tenant's sole cost
and expense, appropriate aesthetic screening, reasonably satisfactory
to Landlord, for the Dish/Antenna (the "Aesthetic Screening").
B. Landlord agrees that Tenant, upon reasonable prior written notice to
Landlord, shall have access to the roof of the Building and the Roof
Space for the purpose of installing, maintaining, repairing and
removing the Dish/Antenna, the appurtenances and the Aesthetic
Screening, if any, all of which shall be performed by Tenant or
Tenant's authorized representative or contractors, which shall be
approved by Landlord, at Tenant's sole cost and risk. It is agreed,
however, that only authorized engineers, employees or properly
authorized contractors of Tenant, FCC inspectors, or persons under
their direct supervision will be permitted to have access to the roof
of the Building and the Roof Space. Tenant further agrees to exercise
firm control over the people requiring access to the roof of the
Building and the Roof Space in order to keep to a minimum the number
of people having access to the roof of the Building and the Roof Space
and the frequency of their visits.
C. It is further understood and agreed that the installation,
maintenance, operation and removal of the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, will in no way
damage the Building or the roof thereof, or interfere with the use of
the Building and roof by Landlord. Tenant agrees to be responsible for
any damage caused to the roof or any other part of the Building, which
may be caused by Tenant or any of its agents or representatives.
D. Tenant agrees to install only equipment of types and frequencies which
will not cause unreasonable interference to Landlord or existing
tenants of the Building. In the event Tenant's equipment causes such
interference, Tenant will change the frequency on which it transmits
and/or receives and take any other steps necessary to eliminate
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the interference. If said interference cannot be eliminated within a
reasonable period of time, in the judgment of Landlord, then Tenant
agrees to remove the Dish/Antenna from the Roof Space.
E. Tenant shall, at its sole cost and expense, and at its sole risk,
install, operate and maintain the Dish/Antenna in a good and
workmanlike manner, and in compliance with all Building, electric,
communication, and safety codes, ordinances, standards, regulations
and requirements, now in effect or hereafter promulgated, of the
Federal Government, including, without limitation, the Federal
Communications Commission (the "FCC"), the Federal Aviation
Administration ("FAA") or any successor agency of either the FCC or
FAA having jurisdiction over radio or telecommunications, and of the
state, city and county in which the Building is located. Under this
Lease, the Landlord and its agents assume no responsibility for the
licensing, operation and/or maintenance of Tenant's equipment. Tenant
has the responsibility of carrying out the terms of its FCC license in
all respects. The Dish/Antenna shall be connected to Landlord's power
supply in strict compliance with all applicable Building, electrical,
fire and safety codes. Neither Landlord nor its agents shall be liable
to Tenant for any stoppages or shortages of electrical power furnished
to the Dish/Antenna or the Roof Space because of any act, omission or
requirement of the public utility serving the Building, or the act or
omission of any other tenant, invitee or licensee or their respective
agents, employees or contractors, or for any other cause beyond the
reasonable control of landlord, and Tenant shall not be entitled to
any rental abatement for any such stoppage or shortage of electrical
power. Neither Landlord nor its agents shall have any responsibility
or liability for the conduct or safety of any of Tenant's
representatives, repair, maintenance and engineering personnel while
in or on any part of the Building or the Roof Space.
F. The Dish/Antenna, the appurtenances and the Aesthetic Screening, if
any, shall remain the personal property of Tenant, and shall be
removed by Tenant at its own expense at the expiration or earlier
termination of this Lease or Tenant's right to possession hereunder.
Tenant shall repair any damage caused by such removal, including the
patching of any holes to match, as closely as possible, the color
surrounding the area where the equipment and appurtenances were
attached. Tenant agrees to maintain all of the Tenant's equipment
placed on or about the roof or in any other part of the Building in
proper operating condition and maintain same in satisfactory condition
as to appearance and safety in Landlord's sole discretion. Such
maintenance and operation shall be performed in a manner to avoid any
interference with any other tenants or Landlord. Tenant agrees that at
all times during the Lease Term, it will keep the roof of the Building
and the Roof Space free of all trash or waste materials produced by
Tenant or Tenant's agents, employees or contractors.
G. In light of the specialized nature of the Dish/Antenna, Tenant shall
be permitted `to utilize the services of its choice for installation,
operation, removal and repair of the Dish/Antenna, the appurtenances
and the Aesthetic Screening, if any, subject to the reasonable
approval of Landlord. Notwithstanding the foregoing, Tenant must
provide Landlord with prior written notice of any such installation,
removal or repair and coordinate such work with Landlord in order to
avoid voiding or otherwise
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adversely affecting any warranties granted to Landlord with respect to
the roof. If necessary, Tenant, at its sole cost and expense, shall
retain any contractor having a then existing warranty in effect on the
roof to perform such work (to the extent that it involves the roof),
or, at Tenant's option, to perform such work in conjunction with
Tenant's contractor. In the event the Landlord contemplates roof
repairs that could affect Tenant's Dish/Antenna, or which may result
in an interruption of the Tenant's telecommunication service, Landlord
shall formally notify Tenant at least thirty (30) days in advance
(except in cases of an emergency) prior to the commencement of such
contemplated work in order to allow Tenant to make other arrangements
for such service.
H. Tenant shall not allow any provider of telecommunication, video, data
or related services ("Communication Services") to locate any equipment
on the roof of the Building or in the Roof Space for any purpose
whatsoever, nor may Tenant use the Roof Space and/or Dish/Antenna to
provide Communication Services to an unaffiliated tenant, occupant or
licensee of the Building or any other building, or to facilitate the
provision of Communication Services on behalf of another Communication
Services provider to an unaffiliated tenant, occupant or licensee of
the Building or any other building.
I. Tenant acknowledges that Landlord may at some time establish a
standard license agreement (the "License Agreement") with respect to
the use of roof space by tenants of the Building. Tenant, upon request
of Landlord, shall enter into such License Agreement with Landlord
provided that such agreement does not materially alter the rights of
Tenant hereunder with respect to the Roof Space.
J. Tenant specifically acknowledges and agrees that the terms and
conditions of Article 10 of the Lease (Indemnification and Waiver)
shall apply with full force and effect to the Roof Space and any other
portions of the roof accessed or utilized by Tenant, its
representatives, agents, employees or contractors.
K. If Tenant defaults under any of the terms and conditions of this
Section or the Lease, and Tenant fails to cure said default within the
time allowed by Article 19 of the Lease, Landlord shall be permitted
to exercise all remedies provided under the terms of the Lease,
including removing the Dish/Antenna, the appurtenances and the
Aesthetic Screening, if any, and restoring the Building and the Roof
Space to the condition that existed prior to the installation of the
Dish/Antenna, the appurtenances and the Aesthetic Screening, if any.
If Landlord removes the Dish/Antenna, the appurtenances and the
Aesthetic Screening, if any, as u result of an uncured default. Tenant
shall be liable for all costs and expenses Landlord incurs in removing
the Dish/Antenna, the appurtenances and the Aesthetic Screening, if
any, and repairing any damage to the Building, the roof of the
Building and the Roof Space caused by the installation, operation or
maintenance of the Dish/Antenna, the appurtenances, and the Aesthetic
Screening, if any.
II. Notice Address and Payment of Rent. Paragraph 3 of the Summery of Basic
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Lease Information section of the Lease is hereby modified so as to
substitute therein the following addresses for Landlord and place of
payment of rent:
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Address of Landlord:
EOP-10960 WILSHIRE, L.L.C., a Delaware limited liability company, doing
business in California as EOP-10960 Wilshire, LLC, a Delaware limited
liability company
c/o Equity Office Properties Trust
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Building Manager
With a copy to:
EOP-10960 WILSHIRE, L.L.C., a Delaware limited liability company, doing
business in California as EOP-10960 WILSHIRE, LLC, a Delaware limited
liability company
c/o Equity Office Properties Trust
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Regional Counsel - Pacific Region
Payments of Rent only shall be made payable to the order of:
Equity Office Properties
at the following address:
EOP Operating Limited Partnership
as Agent for EOP-10960 Wilshire, L.L.C.
Dept. #8827
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
III. Miscellaneous.
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A. This Amendment sets forth the entire agreement between the parties
with respect to the matters set forth herein. There have been no
additional oral or written representations or agreements. Under no
circumstances shall Tenant be entitled to any Rent abatement,
improvement allowance, leasehold improvements, or other work to the
Premises, or any similar economic incentives that may have been
provided Tenant in connection with entering into the Lease, unless
specifically set forth in this Amendment.
B. Except as herein modified or amended, the provisions, conditions and
terms of the Lease shall remain unchanged and in full force and
effect.
C. In the case of any inconsistency between the provisions of the Lease
and this Amendment, the provisions of this Amendment shall govern and
control.
D. Submission of this Amendment by Landlord is not an offer to enter into
this Amendment but rather is a solicitation for such an offer by
Tenant. Landlord shall not be bound by this Amendment until Landlord
has executed and delivered the
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same to Tenant.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with no
broker in connection with this Amendment. Tenant agrees to indemnify
and hold Landlord, its members, principals, beneficiaries, partners,
officers, directors, employees, mortgagee(s) and agents, and the
respective principals and members of any such agents (collectively,
the "Landlord Related Parties") harmless from all claims of any
brokers claiming to have represented Tenant in connection with this
Amendment. Landlord hereby represents to Tenant that Landlord has
dealt with no broker in connection with this Amendment. Landlord
agrees to indemnify and hold Tenant, its members, principals,
beneficiaries, partners, officers, directors, employees, and agents,
and the respective principals and members of any such agents
(collectively, the "Tenant Related Parties") harmless from all claims
of any brokers claiming to have represented Landlord in connection
with this Amendment.
[SIGNATURES ARE ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment
as of the day and year first above written.
LANDLORD:
EOP-10960 WILSHIRE, L.L.C., a Delaware limited
liability company, doing business in
California as EOP-10960 WILSHIRE, LLC, a
Delaware limited liability company
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: XXXXX X. XXXXX
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Title: Senior Vice President
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TENANT:
SABAN ENTERTAINMENT, INC., a
Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: XXXXXX XXXXXXX
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Title: Vice President
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By: /s/ Jacqui Gold Grunfeld
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Name: JACQUI GOLD GRUNFELD
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Title: Secretary
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