Guaranty - Kingston Andrita LLC and Playboy Entertainment Group Inc.
GUARANTY
PREMISES: 3030 Andrita Street, Los Angeles, California
LANDLORD: Kingston Andrita LLC
TENANT: Playboy Entertainment Group, Inc.
LEASE: that certain Lease dated as of September 20, 2001,
between Landlord and Tenant covering the Premises,
as amended by that certain Consent to Sublet among
Landlord, Tenant and Directrix, Inc., as
subtenant, and as the same may be hereafter
further modified, amended or assigned
DATE OF THIS GUARANTY: September 20, 2001
1. Capitalized terms used but not defined herein shall have the meanings
ascribed thereto in the Lease.
2. As an inducement for the granting, execution and delivery of the Lease
and in further consideration of the sum of One ($1.00) Dollar and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned, Playboy Enterprises, Inc., a Delaware corporation
("Guarantor", which term shall be deemed to include the named Guarantor and any
successors, legal representatives and assigns thereof), hereby absolutely,
unconditionally and irrevocably guarantees to Landlord (which term shall be
deemed to include the named Landlord and its successors and assigns) the full
and prompt payment of all Base Rent and additional rent (as such terms are
defined in the Lease) and all other charges and sums (including, without
limitation, Landlord's attorneys' fees and disbursements and all amounts payable
as a result of a default by Tenant under the Lease) payable by Tenant (which
term shall be deemed to include the named Tenant and its successors and assigns)
under the Lease, all irrespective of the validity, binding effect, legality or
enforceability of the Lease or whether the Lease shall have been duly executed
by Tenant, or any other circumstance which might now or hereafter or otherwise
constitute a legal or equitable discharge or defense of Guarantor. Guarantor
hereby covenants and agrees with Landlord that if a default shall at any time
occur in the payment of any such Base Rent, additional rent or other charges or
sums, Guarantor shall pay upon demand such Base Rent, additional rent and all
other charges and sums, and any arrears thereof, to Landlord in legal currency
of the United States of America for payment of public and private debts.
3. This Guaranty is an absolute, unconditional and irrevocable guaranty of
payment and not merely a guaranty of collection. The liability of Guarantor is
coextensive with that of Tenant and this Guaranty shall be enforceable against
Guarantor without the necessity of any suit or proceedings on Landlord's part of
any kind or nature whatsoever against Tenant and without the necessity of any
notice of nonpayment, nonperformance or nonobservance (except any notice
Landlord is required to give to Tenant pursuant to the Lease), or of any notice
of acceptance of this Guaranty, or of any other notice or demand to which
Guarantor might otherwise be entitled, all of which Guarantor hereby expressly
waives.
4. Guarantor hereby expressly agrees that Guarantor's obligations to
Landlord are separate and distinct from Tenant's obligations to Landlord under
the Lease. Guarantor acknowledges and agrees that this Guaranty shall be a
continuing guaranty and that the validity of this Guaranty and the obligations
and liability of Guarantor hereunder shall in no way be terminated, affected,
diminished or impaired by reason of (a) the assertion of or the failure by
Landlord to assert against Tenant any of the rights or remedies reserved to
Landlord pursuant to the terms, covenants and conditions of the Lease, (b) any
assignment of the Lease, (c) any renewal or extension of the Lease or any
modification thereof, whether pursuant to the Lease or by subsequent agreement
of Landlord and Tenant, (d) any extension of time that may be granted by
Landlord to Tenant, (e) any consent, indulgence or other action, inaction or
omission under or in respect of the Lease, (f) any dealings or transactions or
matter or thing occurring between Landlord and Tenant, (g) any bankruptcy,
insolvency, reorganization, arrangement, assignment for the benefit of
creditors, receivership or-trusteeship affecting Tenant or Tenant's successors
or assigns whether or not notice thereof is given to Guarantor or (h) any other
matter or thing whatsoever, whether or not specifically mentioned herein, other
than full payment and performance of all Tenant's obligations under the Lease.
5. No delay on the part of Landlord in exercising any right, power or
privilege under this Guaranty, nor any failure to exercise the same shall
operate as a waiver of or otherwise affect any such right, power or privilege,
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
6. Guarantor hereby waives (a) presentment, demand for payment and protest
of non-performance under the Lease, (b) notice of any kind including, without
limitation, notice of acceptance of this Guaranty, protest, presentment, demand
for payment, default, nonpayment, or the creation or incurring of new or
additional obligations of Tenant to Landlord, (c) any right to require Landlord
to enforce its rights or remedies against Tenant under the Lease, or otherwise,
or against Guarantor, (d) any right to require Landlord to proceed against any
security held from Tenant or any other party, (e) any right of subrogation, (f)
any defense arising out of the absence, impairment or loss of any right of
reimbursement or subrogation or other right or remedy of Guarantor against
Landlord or any such security, whether resulting from an election by Landlord or
otherwise, and (g) any right or defense that may arise by reason of the
incapacity, lack of authority, death or disability of Tenant or any other party.
Without in any manner limiting the generality of the foregoing, Guarantor hereby
waives the benefits of the provisions of Sections 2809, 2819, 2845 and 2850 of
the California Civil Code and any similar or analogous statutes of California or
any other jurisdiction.
7. Guarantor agrees that whenever at any time or from time to time
Guarantor shall make any payment to Landlord on account of the liability of
Guarantor hereunder, Guarantor will notify Landlord in writing that such payment
is for such purpose. No such payment by Guarantor pursuant to any provision
hereof shall entitle Guarantor by subrogation or otherwise, to the rights of
Landlord to any payment by Tenant or out of the property of Tenant, except after
payment in full of all sums owing by Tenant under the Lease. All existing and
future advances by Guarantor to Tenant, and all existing and future debts and
obligations of Tenant to Guarantor, shall be subordinated to any and all
obligations owed to Landlord under this Guaranty and the Lease.
8. Guarantor agrees that it will, at any time and from time to time,
within ten (10) business days following written request by Landlord, execute,
acknowledge and deliver to Landlord a statement certifying that this Guaranty is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating such
modifications). Guarantor agrees that such certificates may be relied on by
anyone holding or proposing to acquire from or through Landlord the Premises or
any interest in the property of which the Premises is a part (the "Property") or
by any mortgagee or prospective mortgagee of such building or any interest
therein. Guarantor shall, upon request from Landlord from time to time, execute
and deliver such further documents and do such further acts and things as
Landlord may reasonably request in order to fully effect the purposes of this
Guaranty. If Landlord desires to sell, finance or refinance the Premises or the
Property or any portion thereof, Guarantor shall deliver to any lender or buyer
designated by Landlord such financial information as Landlord may reasonably
request, including without limitation financial statements for the prior two
years. All such information shall be received by Landlord in confidence and
shall be used only for the foregoing purposes.
9. All notices hereunder shall be in writing and shall be effective for
any purpose if given or served as follows by nationally recognized overnight
courier service or by certified mail, postage prepaid, return receipt requested,
addressed to Landlord at c/o Kingston Investors Corp., 135 East 57th Street, New
York, New York 10021, with a copy thereof to Bingham Dana LLP, 399 Park Avenue,
New York, New York 10022, Attn: Robert M. Safron, Esq. and addressed to
Guarantor at 9242 Beverly Boulevard, Los Angeles, California 90210, with a copy
thereof addressed to Guarantor at 680 North Lakeshore Drive, Chicago, Illinois
60611, Attn: General Counsel, or to such other address(es) and attorneys) as
Landlord and Guarantor may from time to time designate by notice given to
Landlord by certified mail. Every notice hereunder shall be deemed to have been
given or served (i) three (3) business days after the same shall be deposited in
the United States mail, postage prepaid, return receipt requested, as aforesaid,
or (ii) one (1) business day after being deposited with a nationally recognized
overnight courier service. Notices given by the parties' attorneys shall be
valid, provided the same are given in accordance with the terms of this Article.
10. Should Landlord be obligated by any bankruptcy or other law to repay
to Tenant or Guarantor or to any trustee, receiver or other representative of
Guarantor, any amounts previously paid to Landlord, then this Guaranty shall be
reinstated in the amount of such repayment. Landlord shall not be required to
litigate or otherwise dispute its obligation to make such repayments if it in
good faith on the advice of counsel believes that such obligation exists.
11. Notwithstanding anything contained herein to the contrary, this
Guaranty shall not be construed as creating a landlord-tenant relationship, nor
shall the payment of any sums pursuant to this Guaranty entitle the Guarantor to
possess or occupy the Premises or any part thereof. The provisions of this
Article shall survive the expiration or sooner termination of this Guaranty and
the Lease.
12. All remedies afforded to Landlord by reason of this Guaranty are
separate and cumulative remedies and it is agreed that no one of such remedies,
whether exercised by Landlord or not, shall be deemed to be in exclusion of any
other remedy available to Landlord and shall not limit or prejudice any other
legal or equitable remedy which Landlord may have.
13. If any provision of this Guaranty or the application thereof to any
person or circumstances shall to any extent be held void, unenforceable or
invalid, then the remainder of this Guaranty or the application of such
provision to persons or circumstances other than those as to which it is held
void, unenforceable or invalid shall not be affected thereby and each provision
of this Guaranty shall be valid and enforceable to the fullest extent permitted
by law.
14. As a further inducement to Landlord to make and enter into the Lease
and in consideration thereof, Guarantor hereby waives trial by jury and the
right thereto in any action or proceeding of any kind or nature, arising on,
under or by reason of or relating to, this Guaranty or any agreement collateral
hereto.
15. Guarantor represents and warrants that it is not entitled to immunity
from judicial proceedings and agrees that, should Landlord or any of its
successors or assigns bring any suit, action or proceeding in California or any
other jurisdiction to enforce any obligation or liability of Guarantor arising,
directly or indirectly, out of or relating to this Guaranty, no immunity from
such suit, action or proceeding will be claimed by or on behalf of Guarantor.
16. Guarantor represents that this Guaranty shall be a valid and binding
obligation of Guarantor.
17. Guarantor represents and warrants to Landlord as follows:
A. Guarantor is not in default in the terms and conditions of any
agreement to which it is a party or by which it is bound, such as would
materially and adversely affect its ability to carry out the terms, covenants
and conditions of this Guaranty.
B. Guarantor has the full power, authority and legal right to
execute and deliver, and to perform and observe the provisions of this Guaranty
including the payment of all moneys hereunder. This Guaranty constitutes the
legal, valid and binding obligation of Guarantor enforceable in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
creditors' rights generally.
C. Guarantor is not in violation of any decree, ruling, judgment,
order or injunction applicable to it, nor any law, ordinance, rule or regulation
of whatever nature which taken alone or in the aggregate, would materially and
adversely affect its ability to carry out any of the terms, covenants, and
conditions of this Guaranty. There are no actions, proceedings or investigations
pending or threatened against or affecting Guarantor (or any basis therefor
known to Guarantor) before or by any court, arbitrator, administrative agency or
other governmental authority or entity, which, taken alone or in the aggregate,
if adversely decided, would materially and adversely affect its ability to carry
out any of the terms, covenants and conditions of this Guaranty.
18. It is a condition of the granting, execution and delivery of the Lease
that Guarantor execute and deliver this Guaranty and Guarantor deems the
granting, execution and delivery of the Lease to be in Guarantor's best interest
and, because Tenant is the wholly owned subsidiary of Guarantor, Guarantor
expects to derive benefit therefrom.
19. Guarantor assumes the responsibility to remain informed of the
financial condition of Tenant and of all other circumstances bearing upon the
risk of Tenant's default, which reasonable inquiry would reveal, and agree that
Landlord shall have no duty to advise Guarantor of information known to it
regarding such condition or any such circumstance.
20. Guarantor hereby represents and warrants to Landlord that Guarantor
has received a copy of the Lease, has read or had the opportunity to read the
Lease, and understands the terms of the Lease.
21. This Guaranty shall be governed in all aspects by the internal laws of
the State of California, without regard to the conflict of laws principles
thereof.
22. A. Guarantor acknowledges and agrees that all disputes arising,
directly or indirectly, out of or relating to this Guaranty and all actions to
enforce this Guaranty may be dealt with and adjudicated in the state courts of
California or the federal courts sitting in California, and Guarantor hereby
expressly and irrevocably submits the person of Guarantor to the jurisdiction of
such courts in any suit, action or proceeding arising, directly or indirectly,
out of or relating to this Guaranty or in any action to enforce this Guaranty.
So far as is permitted under applicable law, this consent to personal
jurisdiction shall be self-operative and no further instrument or action, other
than service of process in one of the manners specified in this Article, or as
otherwise permitted by law, shall be necessary in order to confer jurisdiction
upon the person of Guarantor in any such court.
B. Provided that service of process is effected upon Guarantor in
one of the manners hereafter specified in this Guaranty or as otherwise
permitted by law, Guarantor irrevocably waives, to the fullest extent permitted
by law, and agrees not to, assert, by way of motion, as a defense or otherwise
(i) any objection which it may have or may hereafter have to the laying of the
venue of any such suit, action or proceeding brought in such a court as is
mentioned in the previous Paragraph, (ii) any claim that any such suit, action
or proceeding brought in such a court has been brought in an inconvenient forum,
or (iii) any claim that it is not personally subject to the jurisdiction of the
above-named courts. Provided that service of process is effected upon Guarantor
in one of the manners specified in this Article or as otherwise permitted by
law, Guarantor agrees that final judgment from which Guarantor has not or may
not appeal or further appeal in any such suit, action or proceeding brought in
such a court of competent jurisdiction shall be conclusive and binding upon
Guarantor and, may so far as is permitted under applicable law, be enforced in
the courts of any state or any federal court and in any other courts to the
jurisdiction of which Guarantor is subject, by a suit upon such judgment.
C. Guarantor hereby irrevocably designates and appoints CT Systems
Corporation ("Agent"), having an office at 818 West Seventh Street, 2nd Floor,
Los Angeles, CA 90017, as its authorized agent to accept and acknowledge on its
behalf service of any and all process which may be served in any suit, action or
proceeding of the nature referred to in this Article in any state court of
California or federal court sitting in California. Agent, by its signature
below, hereby irrevocably consents to and accepts its designation and
appointment as agent for service of process upon Guarantor. Said designation and
appointment shall be irrevocable until the date upon which the Lease expires.
Agent covenants and agrees that it shall not cease so to act unless and until
Guarantor shall have irrevocably designated and appointed another such agent or
agents in the City of Los Angeles satisfactory to Landlord and shall have
delivered to Landlord or any of its successors or assigns, evidence in writing
of such other agent's acceptance of such appointment and any attempt by such
agent to cease to so act shall be ineffective and without force or effect unless
the foregoing provisions of this sentence shall be complied with.
D. Guarantor hereby consents to process being served in any suit,
action or proceeding of the nature referred to in this Guaranty by the mailing
of a copy thereof by registered or certified mail, postage prepaid, return
receipt requested to Guarantor, at c/o CT Systems Corporation, at 818 West
Seventh Street, 2nd Floor, Los Angeles, CA 90017 with a courtesy copy addressed
to Playboy Enterprises, Inc., at 680 North Lakeshore Drive, Chicago, Illinois
60611, Attn: General Counsel. Guarantor irrevocably waives, to the fullest
extent permitted by law, all claim of error by reason of any such service and
agrees that such service (x) shall be deemed in every respect effective service
of process upon Guarantor in any such suit, action or proceeding and (y) shall,
to the fullest extent permitted by law, be taken and held to be valid personal
service upon and personal delivery to Guarantor.
E. Guarantor agrees to execute, deliver and file all such further
instruments as may be necessary under the laws of the State of California, in
order to make effective (a) the appointment of Agent as agent for service of
process, (b) the consent of Guarantor to jurisdiction of the state courts of
California and the federal courts sitting in California and (c) any other
provisions of this Article.
F. Nothing in this Article shall affect the right of Landlord to
serve process in any manner permitted by law or limit the right of Landlord or
any of its successors or assigns, to bring proceedings, against Guarantor in the
courts of any jurisdiction or jurisdictions.
G. The provisions of this Article shall survive the termination of
this Guaranty for the purpose of any suit, action, or proceeding arising,
directly or indirectly, out of or relating to this Guaranty or any action to
enforce this Guaranty.
23. Notwithstanding anything in this Guaranty to the contrary, Guarantor
shall have the right to assert those same defenses, rights of offset and
counterclaims which could also be asserted by Tenant under the Lease, if any,
except for any defense, offset or counterclaim which could be asserted by Tenant
by reason of any of the following: any impairment, change, release or limitation
of Tenant's obligations under the Lease or otherwise by (i) the release or
discharge of Tenant in any creditors' proceedings, receivership, bankruptcy,
insolvency, composition, dissolution, liquidation, reorganization, arrangement
or adjustment or other proceedings, (ii) any impairment, limitation or
modification of the liability of Tenant or the estate of Tenant in receivership,
bankruptcy, insolvency, composition, dissolution, liquidation, reorganization,
arrangement or adjustment, or of any remedy for the enforcement of Tenant's
liability under the Lease, resulting from the operation of any present or future
provision of the present or any future Federal bankruptcy code or any other
present or future applicable Federal, State or other statute of law or any other
present or future statute or from the decision of any court or other tribunal
relating to creditors' rights or the like or (iii) the rejection or
disaffirmance of the Lease or any obligation thereunder in any such proceedings.
24. Guarantor shall be responsible for the payment of all of Landlord's
costs and expenses, including without limitation, reasonable attorneys' fees and
disbursements, in connection with the enforcement of this Guaranty.
25. This Guaranty may be executed in counterparts, each of which shall be
deemed to be an original, and all of which, taken together, shall constitute one
and the same agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the
day and year first above written.
PLAYBOY ENTERPRISES, INC.,
a Delaware corporation
By: /s/ Howard Shapiro
-------------------------------------
Name: Howard Shapiro
Title: Executive Vice President
PARAGRAPHS 22C AND 22D ABOVE ACCEPTED
AND AGREED TO:
CT SYSTEMS CORPORATION
By: /s/ D. F. Hickey
----------------------------------
Name: D. F. Hickey
Title: Assistant Secretary