EXHIBIT 10.55
FIRST AMENDMENT
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THIS FIRST AMENDMENT, dated as of this 15th day of September, 1995, by
and between MTV Latin America, Inc. (n/k/a MTV Latino Inc.) ("MTVL") and Post
Edge Inc. ("PE").
W I T N E S S E T H:
WHEREAS, PE and MTVL entered into that certain Agreement, dated as of
June 7, 1993, wherein PE furnished for the exclusive use of MTVL certain
premises located at 000 Xxxxxxx Xxxx, Xxxxx, Xxxxxxx (the "Agreement"). Unless
otherwise defined herein, the terms of the Agreement are incorporated herein by
reference as therein defined;
WHEREAS, MTVL wishes to: (i) extend the Initial Term of the Agreement
for an additional 5 years or sixty (60) months, thereby amending the Agreement
by changing the expiration date from September 16, 1995 to September 15, 2000 on
the same terms and conditions set forth in the Agreement subject to the
provisions contained herein and (ii) delete Section 2.2 of the Agreement.
WHEREAS, MTVL and PE wish to amend the Agreement with additional and
new terms and conditions stated herein;
NOW THEREFORE, for and in consideration of the Premises, Services and
Crew, the parties hereto, intending to be legally bound, hereby extend the
Initial Term of the Agreement and amend the Agreement as follows:
I. The Initial Term of the Agreement is extended for an additional five (5) year
period or sixty (60) months from September 16, 1995 through September 15, 2000
(the "Extended Term"), on the same terms and conditions set forth in the
Agreement subject to the provisions contained herein. Notwithstanding anything
to the contrary contained herein or in the Agreement (except for MTVL's right to
terminate the Agreement in accordance with Section 10 thereof), MTVL shall have
the right to cancel the Agreement at any time during the Extended Term upon four
(4) months' written notice to PE (the "Cancellation Period") at the end of which
period MTVL shall be released from all obligations under the Agreement, provided
that MTVL pays to PE a penalty fee of fifteen percent (15%) of the annual
Extended Fee (as defined below) applicable to the year when the cancellation
right is exercised (the "Penalty Fee"). MTVL shall not be responsible for the
Penalty Fee in the event the cancellation of the Agreement is due to MTVL
terminating its operations as a cable television network or for any other
termination right already granted to MTVL under the Agreement. Moreover, should
PE be able to lease the Premises to a third party during said Cancellation
Period, MTVL will consider PE's request to vacate the Premises prior to the end
of the Cancellation Period provided MTVL is fully released of all obligations
under the Agreement (as modified herein) except for its obligation to pay the
Penalty Fee.
II. Section 6.1 (c) of the Agreement is hereby amended as follows:
Except as otherwise provided in the Agreement and/or hereunder, in full
and complete consideration for the Premises, Services and Crew provided by PE
during the Extended Term (or any portion thereof), and provided that PE has
performed its obligations under the Agreement, MTVL agrees to pay PE and PE
agrees to accept the following monthly payments set forth in the following
payment schedule (the "Extended Fee"):
Year 1: $ 88,465.00 per month beginning September 16, 1995 through
September 15, 1996
Year 2: $ 95,140.00 per month beginning September 16, 1996 through
September 15, 1997
Year 3: $100,465.00 per month beginning September 16, 1997 through
September 15, 1998
Year 4: $110,165.00 per month beginning September 16, 1998 through
September 15, 1999
Year 5: $118,450.00 per month beginning September 16, 1999 through
September 15, 2000.
III. Section 6.2 of the Agreement is hereby modified to include the following:
(e) Notwithstanding anything to the contrary in the Agreement or
herein, on any four (4) day weekend holiday (including, but not limited to,
Thanksgiving, Fourth of July, Christmas and New Years Day) on which any
non-holiday day of such a weekend the MTVL offices are closed for business (for
example during a holiday weekend when an additional weekday is given as a day
off), but on which weekday the Crew is required to work (the "MTVL Day Off"), PE
and MTVL hereby agree that all PE employees shall be offered that additional
weekday as a non-working day provided the following:
1. all employees shall be offered the option of taking the day off in
exchange for their agreement to work a pre-determined amount of additional
overtime hours during the week prior or the week post the respective holiday
weekend;
2. with respect to the week between Christmas and New Year's Day during
which MTVL will not be needing studio services (the "Christmas Week"), all
employees shall be offered the option of taking the Christmas Week off in
exchange for their agreement to work a reasonable mutually pre-determined amount
of additional overtime hours during the two (2) weeks prior or the two (2) weeks
post such Christmas Week; and
3. all employees agree to the same arrangement for such holiday periods
and are compensated fairly at their usual overtime rates for the week
representing the permitted days off.
IV. Section 6.6 (a) of the Agreement is modified to include the following
language:
Notwithstanding anything to the contrary contained herein, PE shall
make available to MTVL the following Additional Equipment at no additional cost
for the Extended Term:
(a) Cyc and curtains
(b) Two (2) wireless headsets
(c) Two (2) wireless microphones
(d) Wide angle lens
V. In addition to the foregoing, PE shall also provide to MTVL, at no additional
cost, for the Extended Term, a Grass Valley Kaleidoscope, to the extent
obtainable by PE and if not, a digital video effects device mutually acceptable
to the parties to be used by MTVL in conjunction with the V Series Paintbox and
Xxxxx equipment currently being used by MTVL and located at the PE post
facility.
VI. For the Extended Term, PE shall grant to MTVL a total discount of twenty
percent (20%) from the rate card rates as published in the PE rate card dated
September 1, 1992 for MTVL's use of the D2 Dubbing facilities (including
equipment) located at the Premises.
VII. Schedule A of the Agreement is hereby amended to: (i) reduce the Crew by
one (1) member by consolidating the Chyron Operator and Teleprompter Operator
positions and (ii) delete the reference to the Bullpen Area (approximately 240
square feet).
VIII. Section 17 of the Agreement shall be amended to include the following
language: At any point during the Extended Term, PE hereby agrees that MTVL
shall have the right to permit a third party vendor to use all or any part of
the Premises for its use for any period of time provided:
1. MTVL shall at all times remain primarily responsible to PE for all
obligations under the Agreement, including without limitation, the obligation to
pay the Extended Fee, and MTVL shall not be relieved of such obligations due to
any actions or failure to act by PE (, or said third party or any other party
invited by such third party) in connection with any third party or other party's
(invited by such third party) use of the Premises as contemplated by this
Section 17;
2. MTVL shall give PE notice of its intention to permit a specific
third party the right to use the Premises no less than 15 days prior to the date
of the third party's intended use of the Premises;
3. PE shall have the right to approve the selection of the third party
and must give notice to MTVL no later than 72 hours from MTVL's notice to PE of
the designated third party, provided however PE's approval may not be
unreasonably withheld or delayed;
4. MTVL shall consult with PE as to the costs MTVL will be charging
such third party of the use of the Premises, provided all final decisions
regarding such third party shall be MTVL's decision;
5. MTVL shall share with PE fifty percent (50%) of any and all profits
received by MTVL from such third parties' use of the Premises; "profits" shall
be defined to mean any amounts recovered by MTVL in excess of the Extended Fee
(after deducting therefrom the fees, if any, for Overtime Services and those
charges described in Section 8 (vi) herein) payable to PE received from such
third party which Extended Fees shall be prorated (solely for the purpose of
calculating profits and not releasing MTVL from paying such Extended Fees) for
the period of time the Premises are being used by such third party;
6. in the event such third party requests additional equipment from PE,
PE shall be entitled to charge such party its discounted rate for the additional
equipment and shall also be entitled to charge such party PE's standard and
customary markup (which shall not exceed the markup for equipment PE charges to
MTVL) and standard Overtime rates; any monies in excess of that paid by such
third party shall be shared on an equal basis between MTVL and PE;
7. any third party agreeing to use the Premises shall report directly
to MTVL and shall deliver to MTVL and PE adequate Certificates of Insurance and
other standard and customary documentation (all in form satisfactory to MTVL and
PE) as to its ability to indemnify MTVL and PE in the event of any damage, loss
or claim resulting from its use;
8. in the event MTVL elects to permit the use of the Premises by any
affiliated entity of the Viacom Inc. group of related companies, MTVL shall not
be obligated to pay to PE any amounts recovered in excess of the Extended Fee.
9. MTVL shall be fully and solely responsible for the use of the
Premises by third parties or other parties (invited by such third parties) as
contemplated in this Section 17. MTVL shall at all times indemnify and hold
harmless PE against and from any and all claims, expenses, costs, sums, suits,
liabilities and damages including reasonable attorneys' fees (including but not
limited to trial and appellate attorneys' fees) which result from or arise out
of or are in connection with such third party's or other party's (provided such
other party is invited by a third party) use of the Premises as contemplated in
this Section 17.
IX. Section 19 of the Agreement is hereby amended to include the following:
Copies of all notices to MTVL shall also be forwarded to Xxxxx Xxxxxx,
Esq., Vice President Counsel for Real Estate, Viacom Inc. at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
X. Except as modified hereby, the Agreement shall remain in full force and
effect and all terms, conditions, representations and warranties contained
therein are hereby ratified and confirmed.
IN WITNESS WHEREOF, MTVL and PE have duly executed this First Amendment
as of the day and year first above written.
MTV LATIN AMERICA, INC.
(n/k/a MTV Latino, Inc.)
By: /s/ XXX XXXXXX
Name: Xxx Xxxxxx
Title: President
POST EDGE INC.
By: /s/ XXX XXXXXX
Name: Xxx Xxxxxx
Title: President
