MEMO OF AGREEMENT
Agreed this 26 day of January 1995 between Xxxxxx Publishing Company
("Xxxxxx") and Unitel Video, Inc. ("Unitel"), regarding the lease and amendments
thereto ("the Lease") between the parties of certain portions of the building
located at 000 X. Xxxx, Xxxxxxx, Xxxxxxxx, as follows:
For good and valuable consideration the parties do hereby agree to the
following modifications of the existing leasehold estate in the following
particulars:
1. $110,000.00 annual rent reduction to Unitel;
2. Unitel surrenders immediately the West 6100 square feet
approximately of the first floor to Xxxxxx.
3. Xxxxxx will use its best efforts to rent said space and the
rental generated from said space will be considered as
a credit to Unitel for purposes of calculating (in
accordance with paragraph 9) any rent reduction as it
entitles Xxxxxx to a credit for services granted
hereunder.
4. Unitel relinquishes its' right to take additional space
(2644 square feet) in 1996.
5. Xxxxxx is relieved of its obligation to pay $50,000.00 for
tenant improvements in January 1997.
6. Unitel agrees to vacate all of the premises remaining after
vacating the western first floor, i.e. 33,000 square feet
upon one year's prior notice from Xxxxxx whereupon the Lease
and this Memo of Understanding shall terminate and Unitel
shall have no further obligations under the Lease or this
Memo of Understanding other than for amounts due and owing
through the date of termination.
7. Unitel agrees to a security deposit escrow at Chicago Title
& Trust in the amount of One Hundred Fifty Thousand and
no/100 Dollars ($150,000.00) for two (2) years with interest
payable to Unitel. Xxxxxx to have the right to claim such
escrow as damages for any default by Unitel of the leasehold
estate documents from this point forward.
8. This agreement and the provisions hereof to take effect
October 1, 1994.
9. Xxxxxx is entitled to a credit for services at
Editel/Chicago for any multi-media and consulting services
(the "Services") offered on the current standard rate and
data service card at an 80% of stated rate for day services
and 70% of stated rate for night services in the amount of
the 1) annual rent reduction less rent received for rental
to a third party of the west first floor PLUS 2) all soft
costs of said rental and this agreement as hereinafter
defined. The credit provided in this paragraph (i) shall
accrue monthly in connection with the monthly portion of the
annual rent reduction and (ii) may not be utilized for the
direct or indirect benefit of any person or entity which has
been a customer of Unitel during a period of two years prior
to the commencement of the performance of any Services. In
calculating barter credits, for any month in which the sum
of clauses (1) and (2) of the first sentence of this
paragraph 9 shall be a negative number (such negative number
being the "Xxxxxx Profit"), the Xxxxxx Profit shall be
applied against outstanding or future barter credits to
reduce such credits by the amount of the Xxxxxx Profit;
provided that the Xxxxxx Profit shall never result in any
out-of-pocket payment by Xxxxxx to Unitel.
10. Soft cost of rental to a third party of the west first
floor and this agreement are defined as, attorney's
fees for drafting that lease, and this agreement, cost
of demolition of tenant improvements necessary to rent
said
west first floor, broker's commission paid, cost of tenant build
out agreed upon, $20,000.00 for various negotiated costs
attendant to Unitel's prior lease with Xxxxxx (modified
hereunder); provided, however, that said costs, commissions and
free rental shall be reasonable in the circumstances, shall have
been negotiated in an arms-length transaction and shall be
consistent with market dictates at the time of agreement of any
thereof (i.e., free rent terms shall be granted to a third party
only if and in an amount consistent with local real estate market
practices at the time granted and; provided further that any
particular item incurred (including without limitation the
$20,000 charge for negotiated costs) may be included only once in
the calculation of "soft costs" hereunder.
11. Unitel's current 59% of expense escalation shall remain
unaffected by the surrender of the west first floor until
such time as said space is rented to a third party in spite
of the immediate surrender of same. Once the space, or any
portion thereof, is rented the escalation rent shall be
calculated on the actual square footage (33,000
approximately).
12. Unitel and Xxxxxx agree to cooperate to reach a settlement
with Xxxxx Corporation regarding the discontinuance of
Xxxxx'x obligations in respect of the leasehold estate and
to share in any such settlement 40% and 60%, respectively.
13. Barter credits which accrue each month from October 1, 1994
through September 1, 1995 shall be usable in each case for
36 months following the month in which each such credit
accrued at which time such credit will expire. Barter
credits which accrue each month after October 1, 1995 shall
be usable in each case for twenty four months following the
month in which each such credit accrued at which time such
credit will expire.
14. Unitel will bring all rents current and pay the note in the
principal sum of $62,415.45 plus interest by January 26,
1995.
15. Neither party may assign any of its rights or delegate any
of its duties under this Memo of Understanding without the
prior written consent of the other party.
In witness whereof the parties set their hands the date first above
written.
XXXXXX PUBLISHING COMPANY
By:/s/ Xxxx X. Xxxxxxxxxxx
-----------------------
President
Witness:
/s/ Xxxxx Xxxxxxxxxx Xxxxx
--------------------------
UNITEL VIDEO, INC.
By:/s/ Xxxxx Xxxxxxx
-----------------
Vice President of Finance
Treasurer and C.F.O.
Witness:
/s/ Xxxxx Xxxx Xxxxxxx
----------------------
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") made this 26th day of
January, 1995 by and among Unitel Video, Inc., a Delaware corporation ("Unitel")
Xxxxxx Publishing Company, a Delaware corporation ("Xxxxxx") and Chicago Title
and Trust Company, an Illinois corporation ("Escrow Agent").
W I T N E S S E T H
WHEREAS, Unitel and Xxxxxx have entered into a Memo of Agreement dated
January26th, 1995 (the "Memo of Agreement") relating to and amending that
certain Office Lease Agreement dated April 16, 1987 (as amended to the date
hereof including by the Memo of Agreement, the "Lease") relating to certain
portions of the building located at 000 X. Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx (the
"Premises"); and
WHEREAS, in accordance with the Memo of Agreement Unitel has agreed to
deposit $150,000.00 (the "Escrow Fund") in escrow, which Escrow Fund shall be
used to cure a default by Unitel under the Lease as provided herein; and
WHEREAS, Unitel has agreed to deposit the Escrow Fund with the Escrow
Agent under the terms and conditions of this Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. The Escrow Fund shall be paid by Unitel upon the execution
hereof, and shall be held by the Escrow Agent together with all interest
(the "Interest") that accrues thereon (the Escrow Fund and the Interest
are, collectively, the "Deposit"), in escrow, in an insured 6-month
certificate of deposit, pursuant to the terms and conditions of
subparagraphs (a), (b), (c), (d), (e) and (f) below. Unitel and Xxxxxx
each represent that their respective Federal Taxpayer I.D. Numbers are set
forth opposite their respective signatures below.
(a) Provided that Unitel is then in compliance with all of its
material obligations under the Lease, which shall be deemed to be the case
unless the Escrow Agent shall have received a notice from Xxxxxx that Unitel is
then in default in any of such obligations under the Lease, the Escrow Agent
shall deliver the Escrow Deposit to Unitel on the first to occur of ( i )
receipt by the Escrow Agent of written notice signed by Xxxxxx and Unitel of the
termination of the Lease or ( ii ) January__, 1997 (provided that the Escrow
Agent shall have received a written request from Unitel on or after such date).
(b) If Unitel shall default in the performance of any of its
material obligations under the Lease, Xxxxxx shall give written notice thereof
to Unitel. If Unitel shall not have cured such default within seven days after
receipt of such notice, Xxxxxx may give written demand (the "Demand") to the
Escrow Agent, with a copy to Unitel, for release to Xxxxxx of that portion of
the Escrow Fund equal to the amount necessary to cure such default, such amount
to be set forth in said Demand. Upon receipt of a Demand, the Escrow Agent shall
deliver the portion of the Escrow Fund demanded therein to Xxxxxx. A Demand
shall include a certification by Xxxxxx that it has afforded Unitel the cure
rights provided in the first sentence of this paragraph 1(b).
(c) The Escrow Agent shall upon receipt of a written request on
each semi-annual anniversary of this Escrow Agreement deliver all amounts of
Interest accrued to such date on the Escrow Fund to Unitel.
(d) Unitel and Xxxxxx, jointly and severally, agree to indemnify
and hold the Escrow Agent harmless from and against any loss, damage, claim,
expense, cost or disbursement, including reasonable attorneys' fees and
disbursements, resulting from the performance of its obligations under this
Agreement, except for the gross negligence or willful misconduct of the Escrow
Agent; provided, however, if such loss, damage, claim, expense, cost or
disbursement is incurred as a result of any dispute or any legal proceeding
involving the Deposit and such legal proceeding concluded in a decision or
order, the losing party shall be solely responsible for such loss, damage,
claim, expense, cost or disbursement. Unitel and Xxxxxx agree that the Escrow
Agent shall not be liable for any error of judgment or for any act done or step
taken or omitted by it in good faith, or for any mistake of fact or law, or for
anything which it may do or refrain from doing in connection therewith, except
for its own gross negligence or willful misconduct and that the Escrow Agent
shall have no duties or responsibilities except those specifically set forth
herein.
(e) The Escrow Agent shall not incur any liability for acting upon
any notice, demand, request, consent, waiver or document which appears to be
signed by Unitel, or Xxxxxx, not only as to its due execution and validity and
the effectiveness of its provisions, but also as to the truth of any information
therein contained, which the Escrow Agent in good faith believes to be genuine
and what it purports to be.
(f) The Escrow Agent shall not be obligated to inquire as to the
performance of any obligation described in this Agreement.
2. Except as otherwise required by statute, any notice, demand,
request or other communication required or permitted to be given under this
Agreement to Unitel, Xxxxxx or the Escrow Agent shall be in writing, signed by
the party giving it and conclusively deemed to have been properly given to and
received by Unitel, Xxxxxx or the Escrow Agent, as the case may be, and to be
effective (a) if sent by tested telex or cable, or hand-delivered against
receipt therefore, or by telecopy or other facsimile transmission, on the day on
which delivered to Unitel, Xxxxxx or the Escrow Agent, as the case may be,
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at the respective addresses written below, or, if such day of delivery is not a
business day, on the first business day thereafter, or (b) if sent by overnight
delivery, on the day following such delivery to Unitel, Xxxxxx or the Escrow
Agent, as the case may be, at the respective addresses first above written, or,
if such day following such delivery is not a business day, on the first business
day thereafter. All notices shall be given as provided in the preceding clauses
(a) and (b). Addresses for notice to any such party may be changed by written
notice to the other parties and to the persons, if any, receiving copies, except
that any such notice changing addresses shall not be effective until actually
received by the other parties.
3. Copies of all notices, demands, requests or other communications
under paragraph 2 of this Agreement shall be given in the manner provided in
said paragraph 2 to the parties at the following addresses:
If to Unitel:
Unitel Video, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
VP - Finance
With a copy to:
Xxxxx Xxxx Xxxxxxx
General Counsel
At the same address
If to Xxxxxx:
Xxxx X. Xxxxxxxxxxx, Xx.
President
Xxxxxx Publishing Co.
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
With a copy to:
Xxxxxxx Xxxxxxxxxx, Esquire
Carponelli & Xxxx, P.C.
00 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
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If to the Escrow Agent
Chicago Title and Trust Company
Attention: Xxxxx Xxxxxxx
Escrow Department
000 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Escrow No. D2 094066813
4. BILLING INSTRUCTIONS:
Escrow trust fee will be billed as follows:
One-half (1/2) of the escrow trust fee will be billed to:
Mr. Xxxx Xxxxxxxxxxx, Jr.
President
Xxxxxx Publishing Co.
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
One-half (1/2) of the escrow trust fee will be billed to:
Unitel Video, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, VP-Finance
An annual maintenance fee, as determined by the then current rate schedule, will
commence____________________and will be billed as provided above.
PLEASE NOTE: The escrow trust fee for these joint order escrow trust
instructions is due and payable within 30 days from the projected disbursement
date (which may be amended by joint written direction of the parties hereto).
In the event no projected disbursement date is ascertainable, said escrow trust
fee is to be billed at acceptance and is due and payable within 30 days from the
billing date. The Escrow Agent, at its sole discretion, may reduce or waive the
escrow trust fee for these joint order escrow trust instructions in the event
the funds on deposit herein are transferred to or disbursed in connection with
sale escrow trust instructions or an agency closing transaction established at
Chicago Title.
INVESTMENT:
Deposits made pursuant to these instructions may be invested on behalf of any
party or parties hereto; provided that any direction to the Escrow Agent for
such investment shall be expressed in writing and contain the consent of all
other parties to this escrow, and also provided that you are in receipt of the
taxpayer's identification number and investment
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forms as required. The Escrow Agent will, upon request, furnish information
concerning its procedures and fee schedules for investment.
Except as to deposits of funds for which the Escrow Agent has received express
written direction concerning investment or other handling, the parties hereto
agree that the Escrow Agent shall be under no duty to invest or reinvest any
deposits at any time held by it hereunder, and, further, that the Escrow Agent
may commingle such deposits with other deposits or with its own funds in the
manner provided for the administration of funds under Section 2-8 of the
Corporate Fiduciary Act Ill. Rev. Xxxx. [000, Xx 17. Par. 1552-8] and may use
any part or all such funds for its own benefit without obligation of any party
for interest or earnings derived thereby, if any. Provided, however, nothing
herein shall diminish the Escrow Agent's obligation to apply the full amount of
the deposits in accordance with the terms of these escrow trust instructions
In the event the Escrow Agent is requested to invest deposits hereunder, Chicago
Title and Trust Company is not to be held responsible for any loss of principal
or interest which may be incurred as a result of making the investments or
redeeming said investment for the purposes of these escrow trust instructions.
Notwithstanding the foregoing, the Escrow Agent has been instructed with respect
to investments as set forth in paragraph 1 above.
COMPLIANCE WITH COURT ORDER:
The undersigned authorize and direct the Escrow Agent to disregard any and all
notices, warnings or demands given or made by the undersigned (other than
jointly) or by any other person. The said undersigned also hereby authorize and
direct the Escrow Agent to accept, comply with, and obey any and all writs,
orders, judgments or decrees entered or issued by any court with or without
jurisdiction; and in case the said Escrow Agent obeys or complies with any such
writ, order, judgment or decree of any court, it shall not be liable to any of
the parties hereto or any other person, by reason of such compliance,
notwithstanding any such writ, order, judgment or decree be entered without
jurisdiction or be subsequently reversed, modified, annulled, set aside or
vacated. In case the Escrow Agent is made a party defendant to any suit or
proceedings regarding this escrow trust, the undersigned, for themselves, their
heirs, personal representatives, successors, and assigns, jointly and severally,
agree to pay to said Escrow Agent, upon written demand, all costs, attorney's
fees, and expenses incurred with respect thereto. The Escrow Agent shall have a
lien on the deposit(s) herein for any and all such costs, fees and expenses. If
said costs, fees and expenses are not paid, then the Escrow Agent shall have the
right to reimburse itself out of the said deposit(s).
5. The terms and provisions of this Agreement shall create no right
in any person, firm or corporation other than the parties and their respective
successors and permitted assigns of this Agreement; no third party shall have
the right to enforce, or benefit from, the terms hereof; and no tenant of the
Premises and no contractor,
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materialman, laborer or third party has or shall acquire any third party
beneficiary status by virtue hereof.
6. Xxxxxx and Unitel will share equally in the payment of all Escrow
Agent fees and expenses.
7. This Agreement shall be governed by and construed according to
the laws of the State of Illinois.
8. This Agreement shall be binding upon and shall inure to the
benefit of each of the parties hereto and their successors and/or assigns.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
Unitel Video, Inc.
By:/s/ Xxxxx Xxxxxxx
-----------------
Name: Xxxxx Xxxxxxx
Title:VP-Finance
00-0000000
--------------------
Federal Taxpayer I.D. No.
Xxxxxx Publishing Company
By:/s/ Xxxx X. Xxxxxxxxxxx, Xx.
Name: Xxxx X. Xxxxxxxxxxx, Xx.
Title: President
00-0000000
--------------------
Federal Taxpayer I.D. No.
AGREED TO AND RECEIPT OF ESCROW
FUNDS ACKNOWLEDGED:
CHICAGO TITLE AND TRUST COMPANY
By:
-----------------------
Name:
Title:
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