SUBLEASE
Sublease, dated as of April 1, 1996 by and between VIDEO BROADCASTING
CORPORATION, a Delaware corporation with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Landlord"), and MEDIA ON DEMAND, INC., a New York
corporation with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (the
"Tenant").
W I T N E S S E T H
1. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
following space in the building known as and by the street number 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as the "Building"):
The portion of the Building's 9th floor shown in diagonal lines on the
floor plan annexed hereto as "Exhibit A", which premises are hereinafter
called the "Demised Premises."
The Demised Premises, described as a portion of the 9th floor (consisting of
approximately 1,266 square feet of rentable area) are leased together with the
appurtenances, including the right to use in common with others the lobby,
public entrances, public stairways, public elevators (except elevators
specifically assigned for the exclusive use of other tenants of the Building)
and other public portions of the Building.
TO HAVE AND TO HOLD the same unto Tenant for a term of two (2) years (the
"Term") commencing on the Substantial Completion Date as defined in the Second
Lease Modification Agreement to the Prime Lease ("Commencement Date"), and
ending two (2) years thereafter, paying the rents hereinafter set forth,
pursuant to the covenants, conditions, and agreements stated herein.
Tenant shall use the Demised Premises solely as executive, general and
administrative offices in connection with its multimedia development business.
2. The Demised Premises subleased hereunder are part of the premises referred to
in that certain lease dated September 21, 1994 between XXXXXXX PROPERTIES
PARTNERS, as the landlord therein (herein the "Prime Landlord") and VIDEO
BROADCASTING CORPORATION, as the tenant therein (such lease and exhibits and
schedules and any amendments thereto attached is herein referred to as the
"Prime Lease"). Landlord represents that a copy of the Prime Lease has been
delivered to Tenant or its agent, receipt of which is hereby acknowledged by
Tenant. The terms, covenants, provisions and conditions of the Prime Lease as
modified by this Sublease are hereby incorporated herein and shall be binding
upon the parties hereto, those applying to the Prime Landlord therein shall
apply to the Landlord herein and those applying to the Prime Tenant therein
shall apply to the Tenant herein. In addition to the modifications and
amendments made elsewhere in this Sublease, the following terms hereby are
specifically modified:
(a) Any reference to Exhibit A or Demised Premises in the Prime Lease shall
be deemed a reference to Exhibit A to this Sublease and the Demised
Premises herein, respectively.
(b) Any reference to "Lease" in the Prime Lease shall be deemed a reference
to this Sublease; any reference to "Landlord" or "Tenant" in the Prime
Lease shall mean only Landlord herein and Tenant herein, respectively,
except as provided in subparagraph (c) below.
(c) In the event the Prime Landlord withholds its consent to any proposed
act of Tenant, the Landlord's withholding of its consent to such proposed
act shall not be deemed unreasonable.
(d) The Tenant shall not have an option to renew or a right of first
refusal in connection with the Demised Premises.
3. During the term of this Sublease, Tenant covenants and agrees to pay Landlord
an annual basic fixed rent ("Rent") of Thirty One Thousand Six Hundred Fifty
($31,650) Dollars in equal monthly installments of Two Thousand Six Hundred
Thirty Seven and 50/100 ($2,637.50) Dollars.
Tenant shall also pay an additional rent ("Additional Rent") as specified
herein as and when the same shall become due and payable.
Tenant hereby acknowledges that the Rent and Additional Rent due hereunder shall
be subject to periodic adjustment when and as set forth in the Prime Lease.
Tenant: hereby expressly acknowledges, notwithstanding anything to the contrary
contained in the Prime Lease, that it is not entitled to any abatements,
adjustments or credits of Rent or Additional Rent.
4. Rent shall be payable in equal monthly installments in advance on or before
the first day of each month during the Term and Additional Rent within five (5)
days after being billed by Landlord, all at the office of the Landlord or at
such other place as Landlord may designate from time to time, without any set
off or deduction whatsoever.
5. Tenant shall pay Landlord, on the Substantial Completion Date the first
month's rent in the sum of Two Thousand Six Hundred Thirty Seven and 50/100
($2,637.50) Dollars.
6. Tenant acknowledges that its pro rata share ("Pro Rata Share") is 42.41% of
Portion D as defined in the Second Lease Modification Agreement to the Prime
Lease. Tenant agrees to pay Landlord as Additional Rent, during the Term of the
Sublease on the same terms and conditions as set forth in the Prime Lease, its
Pro rata Share of (i) the increases in the real estate taxes, as set forth in
Section 38 of the Prime Lease; and (ii) any ad valorem assessments or
impositions against the real property of which the Demised Premises form a part
and its proportionate share of any taxes which shall be imposed in lieu of any
ad valorem real property tax as the same is
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presently considered.
7. The Tenant shall pay Landlord as Additional Rent, during the Term of the
Sublease on the same terms and conditions as set forth in the Prime Lease, its
pro rata share of operating expenses as set forth in Section 38 of the Prime
Lease.
8. The Tenant shall pay Landlord as Additional Rent, during the Term of the
Sublease its pro rata share of electric costs related to the Demised Premises at
the rate of $2.75 per square foot.
9. Whenever and as often as the Prime Landlord shall give the Landlord notices,
such notices will be deemed to have been given to the Tenant on the date such
notice was given to the Landlord provided the Tenant actually receives such
notice from Landlord by the next business day thereafter. Any notice, demand, or
other communication shall be in writing, addressed to the respective parties at
the Building, or at such other address as may be designated by the parties in
writing and shall be deemed sufficiently given on the day of delivery if
delivered by hand or three (3) business days following mailing if sent by
certified mail, return receipt requested to the address set forth above or one
(1) business day following mailing by special overnight delivery. All notices to
Tenant shall be sent to Xxxxxxx Xxxxxxxx and all notices to Landlord shall be
sent to J. Xxxxxx XxXxxxxxx, with a copy to Xxxxxxx Xxxx, Esq., at Tashlik,
Xxxxxxxx & Xxxxxxx P.C., 000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxx Xxxx 00000.
10. This is a sublease and Tenant shall look only to the Prime Landlord for the
provision of the services and the performance of the obligations of the Prime
Landlord under the Prime Lease, but in that connection all communications by
Tenant shall be made through Landlord who shall promptly forward such
communications to the Prime Landlord when appropriate. Any failure by the Prime
Landlord to provide such services or perform such obligations shall not
constitute a breach by Landlord hereunder or result in an abatement of rent
unless and then only to the extent of Tenant's proportionate share of any
abatement of Rent under the Prime Lease that Landlord itself in fact receives.
In the event of such a failure, Landlord shall assign any right to Tenant to
assert claims against the Prime Landlord with respect to such specific failure
to the extent Landlord shall not pursue claims in its own name.
11. This Sublease, along with the documents incorporated herein by reference,
sets forth the full terms of the parties' agreement, which may not be modified
except in writing executed by the parties hereto. To the extent the provisions
of this Sublease and those of the Prime Lease are inconsistent, the provisions
of this Sublease shall control.
12. In the event that the Tenant shall remain in the Demised Premises after the
expiration of the Term, such holding over shall not constitute a renewal or
extension of this Sublease. The Landlord may construe such holding over as a
tenancy from month to month, subject to all the terms and conditions of this
Sublease, except as to duration, in which event, the Tenant shall pay monthly
rent in advance at twice the rate provided herein as in effect during the last
month of the Term. In view of the difficulty of accurately ascertaining the loss
Landlord shall suffer by reason of Tenant's failure to vacate and surrender
possession upon the expiration of the term of this Sublease, or, if applicable,
upon the termination of the month to month tenancy, the holdover
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damages shall be deemed Landlord's entire liquidated damages suffered thereby.
However, payment of holdover damages by Tenant shall in no event be deemed or
construed to extend the term of this Sublease or create a month to month
tenancy.
13. Tenant covenants, represents and warrants that Tenant has not had any
dealings or negotiations with any broker, finder, or agent in connection with
the negotiation or consummation of this Sublease and Tenant covenants and agrees
to hold harmless and indemnify Landlord from and against all damages, liability,
costs and expenses (including reasonable attorneys fees) arising from any claim
for compensation, commissions or charges by any broker, finder, agent or any
other person other than the broker based upon dealings with Tenant with respect
to this Sublease or the negotiation thereof, or the Demised Premises.
14. All of the terms, covenants and conditions of this Sublease shall inure to
the benefit of and be binding upon the respective successors and permitted
assigns of the parties hereto.
15. Tenant expressly covenants that it shall not assign, mortgage or encumber
this Sublease, nor underlet or permit the Demised Premises or any part thereof
to be used by others without the prior written consent of Landlord and Prime
Landlord in each instance, which consent may be withheld in the sole discretion
of Landlord or Prime Landlord.
16. This Sublease is subject to the Landlord's obtaining the prior written
consent of the Prime Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed this Sublease
as of the day and year first above written.
VIDEO BROADCASTING CORPORATION MEDIA ON DEMAND, INC.
LANDLORD TENANT
By: /s/ J. Xxxxxx XxXxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
J. Xxxxxx XxXxxxxxx
Executive Vice President
Consented to this 1 day of
April 1996
XXXXXXX PROPERTIES PARTNERS
By: /s/ Signature
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[9th floor diagram of 000 Xxxxx Xxxxxx]
Exhibit "B" - ALL FIGURES AND DIMENSIONS ARE APPROXIMATE
