FACILITY USER AGREEMENT
This Agreement, dated as of January 17, 2003 for reference purposes only, is
made by and between National Lampoon Networks ("Facility User") and Broadway
Video Entertainment, Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Company")
in connection with Facility User's use of the studio and the office space
located to the right of the elevator bank as you exit the elevator ("Office
Space") on the 8th floor of 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The Office Space, as identified above, shall be available for Facility
User's exclusive use commencing on August 1, 2003 and continuing through January
31, 2004 ("Term"). It is further agreed and understood that in the event Company
and Facility User are in good faith negotiations to renew, limit, extend or
expand this Facility User Agreement, the Holdover Fee, as defined below, shall
not apply, and the Term will be extended at the fee specified in paragraph 1A
below until such time as the negotiations terminate, as determined by Company
("Extension Period"), with the understanding that Company is under no obligation
to negotiate with Facility User and may pursue other facility users as it sees
fit. In addition to the rights granted herein, Company grants Facility User the
right to match the terms of any proposal being considered by Company for any
proposed facility user for the Office Space during the Extension Period
("Matching Rights"). Company shall deliver in writing such proposal and Facility
User then has five (5) days from receipt of said proposal in which to accept the
terms submitted by Company or the Matching Rights are deemed waived.
Notwithstanding the foregoing, if Company elects to use the Office Space for its
own, or any of its affiliates, purposes, than Facility User shall not have the
Extension Period or Matching Rights and the Holdover Period provision shall
apply.
1. A. FACILITY USE FEE:
Facility User shall pay Company $4,500.00 per month during the Term
("Fee"). The Fee shall be payable within seven (7) days of the first day of the
applicable month.
It is agreed and understood that Facility User has paid Company $9,000.00
which amount represents payment for the following:
a. Fee for the month of February $4,500.00
b. Security Deposit Due
(as defined in Paragraph 2 below): $4,500.00
B. HOLDOVER PERIOD: For any weeks beyond the Term in which Facility User
shall utilize the office space, ("Holdover Period") Facility User
shall pay Company the fee of $2,000.00 per week (on a pro-rata basis
based on a seven (7) day week) ("Holdover Fee") at the beginning of
each week, as payment for the facility use fee of the Office Space.
2. SECURITY DEPOSIT: Facility User has paid Company a security deposit in the
mount of $4,500.00 ("Security Deposit") to be applied against the final
settlement of any charges that might be incurred and unpaid by Company during
the course of the Agreement, including the Fee and other costs (e.g., telephone
bills).
The Security Deposit shall, to the extent not applied against any charges
incurred by Company provided above or pursuant to Xxxxxxxxx 0 xxxxx, xx returned
to Facility User by Company within fifteen (15) days after the conclusion of the
Agreement (i.e., at the end of the Term or Holdover Period); provided that
Facility User has paid all amounts due to Company (i.e.. Fee, Holdover Fee,
telephone bills). Any charges deducted shall be included in an itemized list
provided to Facility User within fifteen (15) days after the conclusion of the
Agreement.
3. INSURANCE: Fatality User shall at Facility User's sole cost and expense
obtain and keep in force during the term of this Agreement, and the Holdover
Period (if any), Comprehensive General Liability coverage in the amount of at
least $3,000,000.00 combined single limits per occurrence for personal injury,
bodily injury or death, $5,000,000.00 for bodily injury, personal injury or
death in the aggregate and $1,000,000.00 with respect to property damage,
including, but not limited to water damage. Facility User shall provide a
Certificate of Insurance evidencing that Facility User has liability insurance
and naming Company as Tenant, Landpen Co., L.P., as Owner, and any mortgagee, as
their interest may appear, as additional insureds upon execution of the
Agreement. Such certificates shall provide for thirty (30) days notice to
Company of amendments to the named insured, cancellation or non-renewal.
Facility User shall also provide Company with proof of Workers Compensation
insurance in the form and amounts required by law.
4. OFFICE EQUIPMENT: Company shall provide Facility User with office furniture,
telecommunications equipment (i.e., telephones), a small photocopier and
high-speed internet access for twelve (12) people at no additional charge.
Facility User shall be solely responsible for telephone local and long distance
service, for which Company shall xxxx Facility User at cost (e.g. no markup from
the actual xxxx) on a monthly basis and shall be paid by Facility User within
fifteen (15) days of receipt of such xxxx.
5. UTILITIES: Facility User's Fee shall include normal domestic office
electrical service, heat, and air conditioning seven (7) days a week. Company,
at the Facility User's expense, will provide weekday-night janitorial service,
and normal maintenance of the Premises, for which Company shall xxxx Facility
User at direct cost (e.g. no xxxx-up) on a monthly basis and shall be paid by
Facility User within fifteen ( 15) days of receipt of -such xxxx.
6. Release and Indemnification: Facility User for itself and for all persons
using Facility User's facilities pursuant to this Agreement hereby releases
Company, Landpen Co., L.P., their respective officers, agents, representatives
and employees from all losses, costs, damages, liabilities, actions, claims and
demands of any kind which Facility User or any of such persons may ever have or
claim to have against Landpen Co., L.P., their respective officers, agents,
representative and/or employees including, but not limited to,
damage to contents, loss of property, for injury to any person(s) in or about
the Office Space or for such damage and/or injury otherwise occurring on any
other of Company's, Landpen Co., L.P.'s premises located at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Facility User further agrees to indemnify and
hold harmless Company, Landpen Co., L.P., their respective officers, agents,
representatives and employees against any such losses, actions, claims,
liabilities, costs and expenses (including reasonable outside attorney fees) or
damages incurred by Facility User as a result of the use by Facility User or by
Facility User's employees, agents, representatives, guests or invitees of
Premises or any other of Company's, Landpen Co., L.P.'s premises located at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Notwithstanding the foregoing,
Facility User shall not be responsible for losses, costs, damages, liabilities,
motions, claims or demands of any kind arising from or related to Company's own
negligence or willful misconduct or normal use and wear and tear.
7. LICENSED USE: Office Space shall be used for office and studio space only.
Facility User may nor make any alterations to or in any way deface the offices
licensed herein without the prior written consent of Company.
8. NOT A SUBLEASE: This Agreement does not constitute a sublease between
Company and Facility User with respect to the Premises or to any other real
property. Nothing in this Agreement shall constitute Facility User as a
sublessee of the Premises or create in Facility User any of the legal rights of
a sublessee under any applicable law. Facility User shall not have the right to
any listing in any directory with respect to the building in which the Premises
are located.
9. "AS IS" CONDITION: Facility User agrees to occupy the Premises in their
present "as is" condition until the termination of this Agreement. Facility User
shall surrender the Office Space and their present contents to Company at the
conclusion of the Term, broom clean and in its present condition, normal wear
and tear excepted.
10. SECURITY: Facility User acknowledges that the entrances to and exits from
the 0xx Xxxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, as well as any lockable
doors that may lead from the hall into any area which includes the Premises,
must be kept locked at all times and Facility User shall keep any key thereto
provided by Company to it under its sole control and shall not give it or any
copy thereof to any person who is not Facility User's employee or otherwise a
responsible member of Facility User's organization.
11. MISCELLANEOUS:
(a) This Agreement is non-transferable and non-assignable. Any purported
sub-license, transfer, or assignment of all or a portion of the Office Space
shall be null and void and shall, at Company's option, immediately terminate
this Agreement.
(b) Facility User agrees that any failure to comply with any of the terms
contained herein, after ten (10) days written notice from Company, or to pay the
monthly Fee or any other Charges incurred hereunder within ten (10) days of the
date of receipt by Facility User of the xxxx therefore, shall, at Company's
option, terminate this Agreement
and all rights of Facility User hereunder and Facility User agrees to
immediately vacate the offices and Office Space in such event.
(c) Facility User agrees to comply with all applicable Federal, State and
local laws and ordinances, and all written rules and regulations now in effect
or promulgated by Company during the term of this Agreement and applicable to
all of its office licenses at the Premises set forth above.
(d) Except as set forth in the preceding paragraph, the terms set forth
herein constitute the entire understanding of the parties hereto and may not be
changed, altered, waived or modified except by a writing signed by a duly
authorized person acting on behalf of the party against which such change is
asserted.
(e) This Agreement shall be governed by the laws of the State of New York.
If the foregoing accurately reflects your understanding, kindly sign in the
space indicated below.
AGREED TO AND ACCEPTED BY:
NATIONAL LAMPOON NETWORKS
By: /s/ Xxxxxxx X. Xxxxxxx Date: 8/13/03
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Xxxxxxx X. Xxxxxxx EVP
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AGREED TO AND ACCEPTED BY:
BROADWAY VIDEO ENTERTAINMENT, INC.
By: Date:
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