Letter of Intent - Playboy Entertainment Group Inc. and AT&T Digital Media Centers
[Letterhead of AT&T Digital Media Centers]
May 3, 2002
Mr. Jim English
Playboy Entertainment Group, Inc.
9242 Beverly Blvd.
Beverly Hills CA 90210
Re: Letter of Intent for Provision of Services by AT&T Digital Media Centers
("ADMC")
Dear Jim:
We are pleased to submit this letter of intent (the "Letter of Intent") to you
in connection with certain services to be provided by ADMC to The Playboy
Entertainment Group (the "Customer").
ADMC agrees to provide network origination, compression, encryption, playback,
authorization/deauthorization and uplink services on a 24/7 basis (the
"Services"), as may be applicable, at the fees set forth herein. The following
paragraphs reflect our current understandings and constitute a legally binding
and enforceable agreement by both parties with respect to this Letter of Intent
and any follow-on Agreement.
SERVICES
NETWORK ORIGINATION using existing facilities at ADMC, Denver, ADMC will provide
the Services for seven (7) tape-based channels as provided below (the
"Channels"). Channels to be originated by ADMC will be:
Hot Zone
Spice 2
Spice
Hot Network
Vivid TV
Hot Network Plus
ATOS
Customer will provide all programming content in a 'ready-for-air' fashion on
Beta SP tape. The above Channels will be controlled via automation software and
monitored by ADMC personnel. Interstitial origination will be tape based,
compiled by ADMC from a server utilizing ADMC-provided automation software,
which will be provided no later than seven (7) days following launch of
Services. Prior to such time, interstitials will be provided in reduced mode,
i.e., Customer-provided generic wallpaper and/or Customer-provided compiled
interstitial breaks for Hot Zone and Hot Network between the hours of 9 p.m. ET
and 2 a.m. ET. Such interstitial material may be customized for each individual
Channel. On-air 'bugs' will be available as soon as reasonably practical, but no
later than three (3) weeks following launch of Services.
Customer-provided electronic schedules ('logs') will be prepared for the
automation system utilizing ADMC conversion software. ADMC will verify that the
converted log is complete and that all programs required for air are available.
ADMC will provide climate controlled library space for tapes/videocassettes, the
quantity and inventory control process to be mutually agreed by the parties.
Customer shall have the right to modify, alter, change, rename, discontinue
and/or terminate any or all of the Channels. The Service Fees shall remain the
same and any out-of-pocket costs incurred by ADMC related thereto shall be
reimbursed at the rate of ***.
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Upon execution of this Letter of Intent, ADMC will commence Services by May 9,
2002, provided, however, that Customer must deliver to ADMC, no later than 72
hours prior to commencement of Services, at least 72 hours programming for all
Channels.
ADMC will manage the transport of Customer's tape library by a commercial
carrier from a Customer-designated location to the ADMC facility. ADMC will also
arrange for transport by such carrier Customer-owned encoding equipment,
provided that Motorola has properly disconnected and packaged such equipment and
that such equipment is ready for transport by the time the tapes are loaded on
the transport vehicle.
Customer understands that ADMC must perform maintenance on the Equipment from
time to time; however, during such maintenance, ADMC agrees to use all
commercially reasonable efforts to minimize disruption to the Services, and
provided in accordance with the Service Interruptions provision.
TRANSMISSION AND COMPRESSION:
ADMC will downlink two (2) Channels
Channels to be downlinked by ADMC will be:
Playboy en Espanol downlinked from Globecast PAS-9 Transponder 3
Playboy Classic downlinked from Telstar 7 Transponder 15
ADMC will compress and uplink the following Channels, in an 8:1 multiplex, to
Telstar 7 C5H (the "T7 Multiplex"):
Hot Zone
Spice 2
Spice
Hot network
Vivid TV
Playboy Classic
Playboy en Espanol
Playboy Digital
Hot Network Plus and ATOS will be delivered via fiber by ADMC to
DirecTV. In the event that this is not practical the parties agree to
negotiate in good faith to provide alternative delivery at the lowest
possible cost to Customer.
ADMC will downlink and provide cover material for one Channel, Playboy Classic,
two times a week. This Channel will be downlinked as described above, the signal
will be interrupted with Customer-provided material and retransmitted as Playboy
Digital to the T7 Multiplex.
For purposes of compatibility, Customer has provided the encoder configuration
to ADMC and ADMC acknowledges that the format is acceptable to ADM.
PRODUCTION AND POST-PRODUCTION
As needed.
AUTHORIZATION
IRD authorizations/deauthorizations will be provided to cable headends at
Customer's direction on a 24/7 basis. Customer will provide any applicable
headend data utilizing ADMC's standard authorization/deauthorization process.
The number to call for authorizations and deauthorizatins is ***.
FEES
On a monthly basis, Customer will pay ADMC $*** (the "Service Fees").
TERM
The term of this Letter of Intent will be May 9, 2002 to September 8, 2002 (the
"Initial Term"), and will continue thereafter for up to 3 one-month extension
periods, at Customer's option, upon 30 days written notice to ADMC for each
one-month extension. Customer may terminate this Letter of Intent for any reason
upon 30 days written notice
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and payment to ADMC of an early termination fee in the $*** or the remaining
Service Fees due ADMC, whichever is less.
***.
Notwithstanding the foregoing, nothing herein shall prevent Customer from
providing to itself any or all of the Services or facilities mentioned in the
preceding sentence. ***.
The parties will take such steps as are reasonable in the circumstances to keep
each other informed of all relevant facts and will do all things in a timely,
diligent and constructive manner as are reasonable in the circumstances in order
to negotiate, execute and deliver the Agreement.
PAYMENT
Customer will pay to ADMC the initial Services Fee in the amount of $*** no
later than close of business May 6, 2002. After the initial month of Services,
forward billing will occur 1 (one) month in advance to be paid by Customer on
the 1st (first) day of each month.
CONDITIONS
A. The services, terms and conditions contemplated by this Letter of Intent
may be amended through a writing signed by both parties, which may contain
(i) provisions reflecting the terms of this Letter of Intent and other
agreements and covenants of the parties, (ii) indemnities, (iii) other
provisions as are customary for the provision of the Services contemplated
herein, and (iv) exhibits describing the Services and fees in detail.
B. Customer acknowledges and agrees that ADMC will primarily utilize the
existing facilities formerly designated as the Plex room to provide the
Services, but may, upon execution of this Letter of Intent by Customer,
begin ordering equipment and otherwise incurring expenses with respect to
the Services described in this Letter of Intent.
C. Each party will bear its own expenses in connection with the negotiations
contemplated hereby, including legal fees. Customer will be responsible
for all actual out-of-pocket costs incurred by ADMC to obtain Customer's
programming material, provided it is pre-approved by Customer. The costs
and expenses for the initial delivery of Customer's media to ADMC may be
paid either by Customer or ADMC; such expenditure by ADMC will be
reimbursed by Customer at the rate of ***% of ADMC's actual cost.
D. Customer will grant ADMC the right to provide all closed captioning
services on all content to be delivered by ADMC, other than closed
captioning performed by Customer itself or closed captioning provided to
Customer beyond Customer's control, provided that ADMC provides such
services at equal quality and the same or lower rates as Customer's
current vendor.
E. Except for any announcement intended solely for the internal distribution
of ADMC or Customer, or any disclosure required by legal, accounting, or
regulatory requirements, all media releases (including, but not limited
to, information related to disaster recovery capabilities, promotional or
marketing material) by ADMC or Customer or the respective employees,
independent contractors, consultants or agents of any of them, which
identify ADMC or Customer in the context of this Letter of Intent will be
coordinated with and approved in writing by ADMC and Customer prior to the
release thereof. Such approvals will not be unreasonably withheld or
delayed.
SERVICE INTERRUPTIONS
Notwithstanding any contrary provision of this Letter of Intent, ADMC shall not
be responsible for and shall not be in default of this Letter of Intent as a
result of, nor shall it be held liable for any damages, claims, losses, or costs
and expenses on account of, any interruption of the Services, if such
interruption or failure occurs due to any of the following so long as the events
were beyond the reasonable control of ADMC: (i) damage to any equipment or
interruptions in the Services caused by electrical storms, fire, weather, flood,
natural disaster, national emergency or war, sabotage, riots, governmental
authority, acts of God, willful or criminal misconduct of third parties beyond
ADMC's reasonable control, or other similar forces outside the control of ADMC;
(ii) interference from other
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communications system, whether licensed or not, that use the same frequency
bands as the Services herein; except ADMC shall use reasonable efforts to take
protective and corrective actions against such interference; (iii) any
interruption or out-of-specification performance of any associated satellite
transponders; (iv) conditions, which are beyond the control of ADMC, that
threaten the safety of operations and maintenance personnel; (v) occasional
interruptions due to passing of the sun within the beamwidth of any associated
receive antenna system(s) during the spring and fall equinox periods; (vi)
minimal degradation or interruptions of signals due to protection switching;
(vii) outage, interruption or degradation due to atmospheric attenuation of
signals; (viii) such planned interruptions for testing or maintenance as may be
agreed to in advance between Customer and ADMC; (ix) any failure of Customer to
fulfill an obligation hereunder where the failure of Customer to perform such
obligation causes a service interruption; and/or (x) compliance by ADMC with
action by any court, agency, legislature or other governmental authority that
makes it unlawful for ADMC to provide the Services or any part thereof in
accordance with this Letter of Intent, provided that ADMC has provided written
notice to Customer of any such action within twenty-four (24) hours of ADMC
receiving such notice from any court, agency, legislature or other governmental
authority.
CONFIDENTIALITY
ADMC and Customer agree to keep the terms of this Letter of Intent confidential.
In addition, ADMC and Customer agree to keep confidential all non-public
information regarding the other party that is disclosed to it or its
representatives in connection with the negotiation and execution of the
Agreement, whether disclosed before or after the date of this Letter of Intent.
Either party may disclose confidential information it has received to its
attorneys, accountants and other representatives or employees who have a need to
know in connection with this Letter of Intent or the negotiation of the
Agreement, provided that such persons shall also have the same obligation of
confidentiality any breach of which will be the responsibility of the receiving
party that disclosed the information.
INDEMNIFICATION
CUSTOMER'S INDEMNIFICATION. Customer shall indemnify, defend, and hold harmless
ADMC, its directors, shareholders, officers, employees, partners, agents,
subsidiaries, affiliates, subcontractors and assignees (the "ADMC Indemnitees"),
or any of them, from and against any and all claims, demands, costs, expenses,
losses, liabilities or damages (including, but not limited to, reasonable
attorney's fees and costs of suit) (collectively, "Losses"), arising from, in
connection with, or related to (a) an uncured breach by Customer of the
performance of its obligations under this Letter of Intent; or (b) Customer's
Channel signals as delivered to ADMC's reception/uplink site including, without
limitation, those Losses arising from the delivery of such signals to ADMC
whether such delivery is made by tape or directly to ADMC's reception/uplink
site via satellite or other means, except to the extent such losses are the
direct result of ADMC's willful misconduct or gross negligence or the
inadvertent transmission of the Channels by ADMC to any location.
In addition, Customer shall indemnify, defend and hold the ADMC Indemnitees
harmless from and against all Losses related to the Channels or other programs
or material ADMC receives from it, including Losses related to (i) the content
of such Channels, programs or materials, including, without limitation, Losses
related to any claim for libel, slander, infringement or copyright or other
intellectual property rights of third parties, defamation or other tortious
injury; (ii) any claim by a third party related to failure or interruption of,
or defect in, the transmission or reception of the Channel or Channels provided
by means of the Services provided by ADMC under this Letter of Intent; (iii) any
dispute between Customer and any program suppliers; or (iv) any dispute between
Customer and any of its subscribers pertaining to the Channel or Channels
provided by means of the Services provided by ADMC under this letter of Intent.
ADMC'S INDEMNIFICATION. Subject to the Limitation of Liability section of this
Letter of Intent, ADMC shall indemnify, defend, and hold harmless Customer, its
directors, shareholders, officers, employees, partners, agents, subsidiaries,
affiliates, subcontractors and assignees, or any of them, from and against any
and all Losses arising from, in connection with, or related to (a) an uncured
breach by ADMC of the performance of its obligations under this Letter of Intent
and (b) any personal injury or property damage arising from, in connection with,
or related to a breach by ADMC of its obligations under this Letter of Intent,
except to the extent such Losses are the direct result of Customer's willful
misconduct or gross negligence.
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DEFENSE OF CLAIMS
In the event of any claim or other assertion of liability by third parties with
respect to which a party is entitled to indemnification under the preceding
section, the party seeking indemnification (the "Indemnified Party") shall
notify the indemnifying party (the "Indemnifying Party"), in writing, promptly
after the Indemnified Party receives notice of such claim, and in no event later
than fifteen (15) days after receipt of a summons from or a complaint filed in
any court or other governmental agency or body; provided, however, that the
failure to give such notice shall not affect the rights of the Indemnified Party
hereunder except to the extent that such failure has materially prejudiced the
Indemnifying Party's ability to defend such claim. The Indemnifying Party may
use counsel of its own choosing, and the Indemnified Party shall reasonably
cooperate with the Indemnifying Party in the defense of such claim, including
the settlement of the matter on the basis stipulated by the Indemnifying Party
(with the Indemnifying Party remaining responsible for all costs and expenses of
such settlement). The Indemnifying Party shall keep the Indemnified Party
reasonably advised of the progress of any proceedings related to such claim, and
of any settlement discussions or proposals with respect thereto. If the
Indemnifying Party fails to defend any such claim within a reasonable time after
notice thereof or if counsel to the Indemnified Party advises the Indemnified
party that a conflict of interest with respect to the joint defense exist, the
Indemnified Party shall be entitled to undertake the defense, compromise or
settlement of such claim at the expense of and for the account and risk of the
Indemnifying party. Notwithstanding any provision in this section to the
contrary:
If there is a reasonable probability that such claim may materially and
adversely affect the Indemnified Party, other than as a result of money damages
or other money payments, the Indemnified Party shall have the right, at its sole
expense, to participate in the defense, compromise or settlement of such claim,
and the Indemnifying Party shall not take any action materially affecting the
defense compromise or settlement of such claim without the consent of the
Indemnified Party, which consent shall not be unreasonably withheld; and
If the facts giving rise to indemnification hereunder shall involve a possible
claim by the Indemnified Party against any third party, the Indemnifying Party
shall have the right, at its sole expense, to undertake the prosecution,
compromise and settlement of such claim.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANY CONTRARY PROVISION OF THIS LETTER OF INTENT, ADMC SHALL NOT
BE LIABLE TO CUSTOMER AND CUSTOMER SHALL NOT BE LIABLE TO ADMC, FOR ANY AMOUNTS
REPRESENTING THEIR OR THEIR CUSTOMERS' RESPECTIVE LOSS OF PROFITS, LOSS OF
BUSINESS, OR DIRECT OR INDIRECT SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE
DAMAGES ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS LETTER OF INTENT,
OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO THE USE OF ANY
SERVICES FURNISHED HEREUNDER, WHETHER THE BASIS OF THE LIABILITY IS BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTES, OR ANY
OTHER LEGAL THEORY.
ASSIGNMENT
This Letter of Intent may be assigned by either party to any person or entity
controlling, controlled by, or under common control with such party. For
purposes of this Letter of Intent, a person or entity owning at least 20% of the
equity interest in an entity shall be deemed to control that entity.
GENERAL
If any portion or portions of this Letter of Intent shall be deemed, for any
reason, invalid or unenforceable, the remaining portion or portions shall
nevertheless be valid, enforceable, and in effect, unless such remaining portion
or portions are not reasonably adequate to accomplish the basic purposes and
intent of the parties.
Either party's failure to enforce any provision of this Letter of Intent shall
not in any way be construed as a waiver of any such provision as to any future
violations thereof, or prevent that party thereafter from enforcing each and
every other provision of this Letter of Intent. No waiver of any right or remedy
hereunder shall be effective unless contained in a writing signed by the waiving
party. The rights granted to the parties herein are cumulative and the waiver by
a party of any single remedy shall not constitute a waiver of such party's right
to assert all other legal remedies available to it under the circumstances.
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This Letter of Intent shall be governed and interpreted by the laws of the State
of Colorado, without regard to its conflict of law rules. The parties agree that
all litigation relating to this letter of Intent shall be brought in the state
or federal courts of appropriate subject matter jurisdiction in Colorado and
each party hereby submits itself to the exclusive in personam jurisdiction of
such courts for purposes of any such litigation. Neither party shall object to
venue in such courts on the grounds of an inconvenient forum or otherwise. In
the event of any litigation between the parties relating to this Letter of
Intent, the prevailing party shall be entitled to recover, in addition to any
other relief awarded by the court, its reasonable attorneys' fees and all other
costs of preparing and participating in the litigation, including all appeals.
Neither party will be in default or otherwise liable for any delay in or failure
of its performance under this Letter of Intent where such delay or failure
arises by reason of any act of God, acts of the common enemy, the elements,
earthquake, floods, fires, epidemics, quarantine restrictions, riots, strikes,
failure or delay in transportation, freight embargoes, import or export
regulations or other causes beyond its control.
ACCEPTANCE OF LETTER OF INTENT
If this Letter of Intent is acceptable, please sign and return a copy for our
records.
Our offer of this Letter of Intent will expire at 7:00 p.m., Mountain Daylight
Time, on May 3, 2002 unless ADMC has received a copy of this letter signed by
Customer by such time.
Very truly yours,
AT&T DIGITAL MEDIA CENTERS
By: /s/ Gary Traver
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Name: Gary Traver
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Title: Senior Vice President Video Services
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Date: 5/3/2002
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Accepted:
Playboy Entertainment Group, Inc.
By: /s/ James L. English
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Name: James L. English
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Title: President
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Date: 5/3/02
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